Questions on Reasonable Accommodations under the ADA have no place in the proof of a Social Security Disability Case.

Your at your social security hearing before an ALJ and he poses a hypothetical question to the vocational expert asking the expert to consider the claimant's limitations and determine if there are jobs that the claimant could do. The expert answers that with accommodations, the claimant could do job x, y, and z.
Can an ALJ then ask the vocational expert, at steps 4 or 5, “Given reasonable accommodations, are there any jobs that claimant could be employed?” If not asked by the ALJ, can the vocational expert consider reasonable accommodations in determining if there are any jobs within the national/regional economy that the claimant could do in his/her disabled condition?
In many cases it is difficult to obtain benefits for a client. When the question of allowing accommodations comes into the process, there are real concerns for the claimant, for example, not all employers or all jobs require that accommodations be provided, how would that be factored into the process? Since much of the vocational expert’s testimony is based upon subjective determinations on which jobs are available and which jobs are not, give the VE the opportunity to ponder on this issue would/could greatly expand the available jobs.
It would be improper for the Administrative Law Judge or the Vocational Expert to consider reasonable accommodations under the Americans With Disability Act at steps 4 or 5 of social security’s sequential evaluation process.
The ADA provides that a covered entity (generally an employer engaged in interstate commerce and who employs 15 or more workers) shall not discriminate against a qualified individual with a disability (an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires).
Under the sequential evaluation used by Social Security to determine if a claimant’s disability(s) prevent him/her from being employable in the national economy the focus in on availability of jobs that the claimant, given his residual functional capacity, may be able to work. Under step four, the focus is on jobs that the claimant had successfully worked during the past fifteen years. If the claimant is unable to do a prior job then at step five, the focus turns to any job within the national economy that claimant could work.
The questions posed at step four and then step five, ask:
Step Four: If your impairment does not meet or equal a listed impairment, can you perform your "past relevant work?" If the claimant cannot do past relevant work, then the inquiry moves to -
Step Five: If your impairment does not meet or equal a listed impairment and you cannot perform your "past relevant work," then can you perform other jobs that exist in significant numbers in the national economy?
If the requirements of the ADA are applied at either Step Four or Step Five of the sequential evaluation, the questions would be given reasonable accommodations can claimant perform past relevant work or any work. If allowed it makes a significant difference in the process. Allowable?
Such was the issue in Eback v. Chater, 94 F.3d 410 (8^th Cir. 1996). The Court’s holding in Eback was that it was inappropriate to consider accommodations—


“This rationale is faulty for numerous reasons, the most significant of which is that a determination of relevant jobs existing in the national economy in significant numbers must be based on an assumption that the employer would be willing to make accommodations under the ADA. The Associate Commissioner of Social Security issued a statement that the ADA and the disability provisions of the Social Security Act have different purposes and have no direct relationship to each other.
[The inquiry into other available jobs] is based on the functional demands and duties of jobs as ordinarily required by employers throughout the national economy, and not on what may be isolated variations in job demands (regardless of whether such variations are due to compliance with anti-discrimination statutes or other factors). Whether or how an employer might be willing (or required) to alter job duties to suit the limitations of a specific individual would not be relevant because our assessment must be based on broad vocational patterns ... rather than on any individual employer's practices. To support a ... finding that an individual can perform "other work," the evidence ... would have to show that a job, which is within the individual's capacity because of employer modifications, is representative of a significant number of other such jobs in the national economy.” @ 412 (underlining added)


SSR 00-1c provides some insight into the issue by looking at it from the opposite direction, i.e. does application for SSDI preclude application under the ADA? SSR 00-1c is based upon the U.S. Supreme Court Case, CAROLYN C. CLEVELAND v. POLICY MANAGEMENT SYSTEMS CORPORATION ET AL., ____ U.S. ____, 119 S.Ct. 1597 (1999 . In the case the United States Supreme Court looked carefully at the underlying statutes and focused on one key difference: The SSDI provisions deal with the person's condition without accommodation, and the ADA is based on providing reasonable accommodation for the disability.


The regulation provides, in part:


“The SSAct and the ADA both help individuals with disabilities but in different ways. The SSAct provides monetary benefits to insured individuals who are under a disability, as defined in the SSAct. The ADA seeks to eliminate unwarranted discrimination against any individual who is considered a "qualified individual with a disability" as defined in the ADA...


The Social Security Act provides monetary benefits to every insured individual who "is under a disability." 42 U.S.C. § 423(a)(1). The Act defines "disability" as an "inability to engage in any substantial gainful activity by reason of any ... physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." § 423(d)(1)(A)…


The ADA seeks to eliminate unwarranted discrimination against disabled individuals in order both to guarantee those individuals equal opportunity and to provide the Nation with the benefit of their consequently increased productivity. See, e.g., 42 U.S.C. §§ 12101(a)(8),(9). The Act prohibits covered employers from discriminating "against a qualified individual with a disability because of the disability of such individual." § 12112(a). The Act defines a "qualified individual with a disability" as a disabled person "who ... can perform the essential functions" of her job, including those who can do so only "with ... reasonable accommodation." § 12111(8).


By way of contrast, when the SSA determines whether an individual is disabled for SSDI purposes, it does not take the possibility of "reasonable accommodation" into account, nor need an applicant refer to the possibility of reasonable accommodation when she applies for SSDI…”

The ADA and Social Security are not overlapping legislation, and they serve different purposes. Questions on accommodations are irrelevant to the considerations that are to be made under Steps 4 or 5 in the Social Security’s sequential evaluation process.

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