WIENER, Circuit Judge:
Plaintiff-Appellant Carolyn C. Cleveland appeals the district court's grant of summary judgment for her former employer, Defendant-Appellee Policy Management Systems Corporation (PMSC), on her claim of wrongful termination under the Americans with Disabilities Act (ADA).
FACTS AND PROCEEDINGS
PMSC hired Cleveland in August 1993. The following January, Cleveland suffered a stroke while on the job and took a leave of absence. She was unable to return to work immediately, however, as the stroke caused aphasia, a condition that affects concentration, memory, and language functions such as speaking, reading, and spelling.
With her daughter's assistance, Cleveland filed an application for social security disability benefits. In support of her sworn application, Cleveland certified that she had become "unable to work because of [her] disabling condition on January 7, 1994" and that she was "still disabled." She acknowledged also that it is a crime to make a false statement in an application for social security disability benefits.
In April 1994, Cleveland's doctor released her to return to work and anticipated an eventual recovery for her of nearly 100%. Cleveland alleges that when she returned to work at PMSC she contacted the SSA and informed them that she had returned and that she no longer needed disability benefits.
Following her return, Cleveland did not perform well at PMSC. She requested several accommodations, including computer training, permission to take work home in the evenings, a transfer of position, and permission for the Texas Rehabilitation Commission to provide a counselor — free of charge — to assist her. PMSC denied each of her requests. In July 1994, PMSC terminated Cleveland for poor job performance.
Cleveland claims that as a consequence of her firing she became depressed and that her aphasia worsened. In September 1994, she renewed her application for social security disability benefits by filing a "Request for Reconsideration" in which she stated, "I continue to be disabled," and a "Work Activity Report" in which she stated that she was terminated "because I could no longer do the job because of my condition." In January 1995, Cleveland filed another "Request for Reconsideration" and that May requested a hearing before an Administrative Law Judge (ALJ), in both instances representing that she was "unable to work due to my disability."
In September 1995, the ALJ concluded that Cleveland had become disabled on January 7, 1994 and was disabled continuously through the date of the ALJ's decision. Consequently, the ALJ granted her social security disability benefits, effective retroactively to January 7, 1994.
One week before the ALJ's decision, Cleveland had filed suit against PMSC for wrongful termination in violation of the ADA and the Texas Labor Code. PMSC moved for partial summary judgment, asserting that Cleveland could not establish a prima facie case under the ADA, as her representations in her application for, and her receipt of, social security disability benefits estopped her from claiming that she is a "qualified individual with a disability." The district court granted PMSC's motion on the ADA claim and dismissed the state law claim without prejudice.
Cleveland timely appealed, insisting that she is not estopped from establishing as a matter of law that she is a "qualified individual with a disability." Specifically, she maintains that her position in pursuit of social security disability benefits and her instant position under the ADA are not inconsistent, as (1) she was disabled for purposes of social security disability benefits when she filed the initial application; (2) when she returned to work, she notified the SSA and withdrew her claim for benefits; and (3) she became disabled again for purposes of social security disability benefits only after and as a result of her termination. Cleveland contends that, from the time she returned to work until she was terminated, she could have performed the essential functions of her job with a reasonable accommodation, i.e., during that period she was a "qualified individual with a disability."
A. STANDARD OF REVIEW
We review the district court's grant of summary judgment de novo, applying the same standards as the district court.
B. APPLICABLE LAW
The ADA prohibits an employer from discriminating against "a qualified individual with a disability because of the disability."
The Social Security Act prescribes an individual's eligibility for social security disability benefits. An individual is entitled to receive such benefits if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment"
When the two statutes are read in pari materia, it seems logically inconsistent, at first blush, for an individual to claim that he qualifies for social security disability benefits while simultaneously maintaining that he can perform the essential functions of his position for purposes of asserting an ADA claim. Herein lies the dilemma.
Several of our fellow circuits have held that a plaintiff who represents that he is totally disabled for purposes of recovering social security disability benefits cannot then assert that he is a "qualified individual with a disability" for purposes of bringing an ADA claim. Those circuits have barred the subsequent ADA claim under various theories of preclusion, including the equitable doctrine of judicial estoppel.
We decline, however, to adopt a per se rule that automatically estops an applicant for or recipient of social security disability benefits from asserting a claim of discrimination under the ADA.
First, while the ADA requires an individualized inquiry into the ability of a particular person to meet the requirements of a particular position, the SSA permits general presumptions about an individual's ability to work. The SSA considers some conditions to be presumptively disabling. If a claimant has an impairment that is medically equivalent to a listed impairment, the SSA presumes that the disorder is so severe as to prevent the claimant from doing any substantial gainful activity, without considering his age, education or past work experience.
Second, the SSA does not consider whether the individual can work with reasonable accommodation. An SSA interpretative guidance addressing the SSA's disability determination process states,
Thus, a person may be unable to do any work which exists in the national economy even though he can work with a reasonable accommodation. In those instances, the person is both a person with a "disability" under the SSA and a "qualified individual with a disability" under the ADA. Accordingly, a person claiming to be disabled under the SSA may still be entitled to protection under the ADA.
Third, even the SSA recognizes that an individual may be able to qualify as SSA "disabled" and still be able to work in a particular position. For example, the SSA has a trial work period that allows beneficiaries to work for nine months while their benefit entitlement and payment levels remain unchanged.
We hold therefore that the application for or the receipt of social security disability benefits creates a rebuttable presumption that the claimant or recipient of such benefits is judicially estopped from asserting that he is a "qualified individual with a disability." We thus leave open the possibility that there might be instances in which the nature and content of the disability statement submitted to the SSA, in the context of the particular facts of the case, would not absolutely bar a plaintiff from attempting to demonstrate that despite his total disability for Social Security purposes he is a "qualified individual with a disability." Conceivably, such a plaintiff might be able to rebut this presumption if he were able to present credible, admissible evidence — such as his social security disability benefits application, other sworn documentation, and his allegations relevant to his ADA claim — sufficient to show that, even though he may be disabled for purposes of social security, he is otherwise qualified to perform the essential functions of his job with a reasonable accommodation and thus not estopped from asserting an ADA claim.
C. IS CLEVELAND ESTOPPED FROM ASSERTING HER ADA CLAIM?
We conclude that, on the facts before us — particularly her sworn statements to the SSA that she was disabled — Cleveland has not raised a genuine issue of material fact to rebut the presumption that, while she remains disabled for purposes of Social Security, she is estopped from asserting that she is a "qualified individual with a disability." Cleveland continuously and unequivocally represented to the SSA that she is totally disabled and completely unable to work. As her statements are unambiguous and previously uncontroverted, she cannot now be heard to complain that she could perform the essential functions of her job during the time between her return to work and her termination. To permit Cleveland to make such an argument in the face of her prior, consistent, and — until now — uncontested sworn representations to the SSA would be tantamount to condoning her advancement of entirely inconsistent positions, a factual impossibility and a legal contradiction.
As Cleveland consistently represented to the SSA that she was totally disabled, she