Tuesday, June 15, 2021
Frank Griffin (University of Arkansas), Implicit Disability Bias Disinterred by Zombie Factors in Social Security Disability Determinations, 21 Nev. L. J. (2020):
Social Security Administration (SSA) disability determinations rely on discriminatory and prejudicial factors to deny people with real disabilities crucial benefits. “Zombie factors” (coined here) are judicial requirements for activity restrictions in defining disability that could virtually only be met by fictitious zombies—such as living without food, personal hygiene, exercise, social interaction, and other necessities for human life. Administrative law judges (ALJs) often fail to recognize critical differences between activities of daily living (necessary for survival) and work activities—penalizing people with disabilities for activities like eating, bathing, and living alone, and supporting a prejudicial stereotype that people with work disabilities must be dependent. ALJs also often fail to recognize the differences between simple mainstream activities—like reading, watching tel- evision, and going for a walk—and job activities, perpetuating a stigma that people with disabilities cannot participate in mainstream society. The Honorable Judge Posner described these failures as “a recurrent, and deplorable, feature” of ALJ opinions. Implicit disability bias on the part of adjudicators likely plays a role. This paper exposes the SSA’s use of zombie factors and offers some simple solutions to make SSA disability determinations less arbitrary and discriminatory.