Article by Peter V. Lee, Sheri Porath, and Joan E. Schaffner
This Article focuses on an area of concern that has been largely overlooked: whether the Social Security disability programs afford disabled women and men equal opportunities to receive needed benefits. The question is a logical one to ask for many reasons. State and federal circuit task forces on gender bias in the judiciary tell us that women and men do not have the same opportunities to succeed in the courtroom; thus, there is reason to suspect that gender may also play an inappropriate role in administrative disability adjudications. The emerging consensus that women's health concerns have not been adequately addressed by the medical community also gives us reason to investigate the effect of gender in the disability determination process, which relies so heavily on medical information and opinions. Finally, if for no other reason, the sheer number of Americans who are involved in the disability system—as both applicants and beneficiaries—make the system worthy of inclusion in any examination of the manner in which gender influences the way our nation conducts its business.
In fact, this Article began as part of a study of gender bias in the Ninth Circuit. We were the primary researchers for the Ninth Circuit Gender Bias Task Force's Advisory Committee on Federal Benefits and authors of that committee's working paper. Within the Ninth Circuit, the Advisory Committee surveyed federal SSA Administrative Law Judges (ALJs), employees of the Social Security Administration Offices of Hearings and Appeals (SSA/OHA), and claimant representatives; conducted focus groups with claimant representatives; and examined transcripts from administrative disability adjudications. The differences between the comments and surveys of male and female respondents were often striking. Such differences suggest that the opinions held by respondents to our study were substantially influenced by gender.
In this Article, we have integrated the results of our research with an exploration of how the experiences of female claimants differ from those of male claimants in the disability evaluation process. Our goal is to understand whether gender is a significant factor in the decision to grant or deny benefits to each claimant. We have chosen to present our results from the woman claimant's perspective, although we appreciate that there are diverse viewpoints from which to analyze the disability determination process.
The Article begins with a brief description of the current disability programs administered by the Agency. In the body of the Article, we examine the regulations used to determine disability at each level of the administrative process in greater detail, focusing on the experience of women claimants. Following our analysis of how the gender of claimants affects disability determinations made by the Agency, we offer our recommendations for future action.
About the Author
Peter V. Lee. Associate, Tuttle & Taylor, Los Angeles, California. A.B., University of California, Berkeley, 1983; J.D., University of Southern California Law Center, 1993.
Sheri Porath. Associate, Greenberg, Glusker, Fields, Claman & Machtinger, Los Angeles, California. B.A., University of California, Berkeley, 1987; J.D., University of Southern California Law Center, 1992.
Joan E. Schaffner. Associate Professor of Law, George Washington University, National Law Center. B.S., University of Southern California, 1979; M.S., Massachusetts Institute of Technology, 1981; J.D., University of Southern California Law Center, 1990. The opinions expressed in this article are the authors' and not the opinions of the Ninth Circuit Gender Bias Task Force.
Citation
68 Tul. L. Rev. 1477 (1994)