                          In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-2816
CHRISTOPHER M. OPSTEEN,
                                          Plaintiff-Appellant,
                              v.

KELLER STRUCTURES, INC.,
                                          Defendant-Appellee.
                        ____________
          Appeal from the United States District Court
              for the Eastern District of Wisconsin.
         No. 02-C-1121—William C. Griesbach, Judge.
                        ____________
    ARGUED FEBRUARY 9, 2005—DECIDED MAY 18, 2005
                   ____________



 Before BAUER, EASTERBROOK, and ROVNER, Circuit
Judges.
  E ASTERBROOK ,      Circuit     Judge.    A   fall   left
Christopher Opsteen with serious cognitive shortcomings.
He applied for and received disability benefits under both
the Social Security program and his employer’s ERISA plan.
Both applications asserted that he was totally and per-
manently disabled from performing his former job as a
laborer in Keller’s steel shop, or indeed any other gainful
employment. Notwithstanding these successful applications,
however, Opsteen asked Keller to put him back on the
employment rolls. He acknowledged that his mental short-
2                                                No. 04-2816

comings made it risky (to himself as well as to others) to
work in a place where huge hydraulic presses bend and
move heavy iron and steel products. Laborers use oxyacety-
lene torches to cut and weld large pieces of metal; they
must shape and move heavy building components. Opsteen
cannot do all of his former tasks and could be injured in the
bustle of the workplace. But he contended that two possible
accommodations were available: first, he might be allowed
an indefinite leave of absence; second, he might be supplied
with a full-time “job coach” who would take precautions on
his behalf.
  The nature of the risks and the proposed accommodations
raises a serious question whether Opsteen is “qualified” for
the purpose of the Americans with Disabilities Act. See, e.g.,
Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002);
EEOC v. Yellow Freight System, Inc., 253 F.3d 943 (7th Cir.
2001) (en banc); Byrne v. Avon Products, Inc., 328 F.3d 379,
381 (7th Cir. 2003); Hansen v. Henderson, 233 F.3d 521 (7th
Cir. 2000); Koshinski v. Decatur Foundry, Inc., 177 F.3d 599
(7th Cir. 1999). The ADA is not designed to preserve the
seniority or fringe benefits of a person who can no longer
work, just because recovery some years hence cannot be
ruled out, and the extent to which it requires the appoint-
ment of assistants is open to doubt. But we need not pursue
that subject, because we agree with the district judge’s
conclusion that the representations made to obtain
Opsteen’s disability benefits preclude him from contending
that he can do the job now or in the foreseeable future.
  Opsteen was (and remains) unable to fill out or understand
the forms required to apply for disability benefits. Indeed,
he testified at his deposition that he could not remember
whether an application had been filed on his behalf and did
not know that he was receiving disability benefits. Completing
applications on Opsteen’s behalf, his wife represented that
he could no longer work. Medical evaluations submitted in
support of the applications detailed Opsteen’s limitations,
No. 04-2816                                                  3

chiefly impaired memory and attentiveness. One physician
wrote, for example, that Opsteen “[n]eeds supervision with
all activities involving any possibility of injury due to cog-
[nitive] deficits. . . . Likely never employable in competitive
setting—sheltered work may become possible. . . . [He] has
significantly impaired short and long term memory. Deficits
in processing and integrating information. Currently any
work would need to be 100% supervised. (He is not employ-
able in the competitive market at this point.)” (Emphasis in
original.)
   Cleveland v. Policy Management Systems, Inc., 526 U.S.
795 (1999), holds that receipt of Social Security disability
benefits does not automatically disqualify a person from
making a claim under the Americans with Disabilities Act.
The Social Security system classifies many situations on a
categorical basis, using presumptions (“listings”) and rules
(such as “the grids”) that may result in awards of benefits
to persons who are able to work (at least with a reasonable
accommodation). A rough cut under the Social Security
system thus may be compatible with a conclusion that a
given person still can do a particular job. But the Court
added that contradictions are unacceptable: a person who
applied for disability benefits must live with the factual
representations made to obtain them, and if these show
inability to do the job then an ADA claim may be rejected
without further inquiry. Contradictions between applica-
tions for ERISA benefits and ADA claims are no more ac-
ceptable, and analysis may be simpler because few ERISA
plans have anything equivalent to the Social Security
listings that extend benefits automatically to people with
specified conditions, whether or not they can work. Keller’s
disability-benefits plan does not have such provisions.
  In order to obtain long-term disability benefits under
Keller’s plan, Opsteen had to demonstrate that he could not
do his former work even with a reasonable accommodation.
His wife made that representation on his behalf, with
4                                                No. 04-2816

considerable medical support; the plan’s administrator agreed
and awarded benefits. In this court Opsteen acknowledges
that his current position is factually inconsistent with the
position maintained in his application for benefits, but he
asserts that his mental condition is not that bad. At a dep-
osition, the physician whose words we have quoted testified
that he did not know why he penned this language and that
he now views such a gloomy assessment as mistaken. This
is exactly the sort of factual contradiction that Cleveland
forbids. 526 U.S. at 806. Opsteen wants to have things two
ways, depicting himself as mentally incompetent in order to
obtain disability benefits but as mentally capable in order to
secure employment. He has not informed the Social Security
Administration of his new position, nor has he asked the
SSA and the ERISA plan to stop paying benefits. Instead he
seeks to maintain both gloomy and optimistic medical
evaluations at the same time, and to benefit from different
sources based on these incompatible positions. Cleveland
holds that courts need not tolerate this maneuver. See also
Lee v. Salem, 259 F.3d 667, 673-74 (7th Cir. 2001). Litigants
who take one view of the facts, and prevail, are equitably
estopped to assert the opposite later. See New Hampshire
v. Maine, 532 U.S. 742, 749-51 (2001).
   We stated in Pals v. Schepel Buick & GMC Truck, Inc.,
220 F.3d 495 (7th Cir. 2000), that an employee’s self-as-
sessment of permanent disability is not preclusive if all
professional views indicate that the condition is temporary.
Employers may be required to accommodate short-term
medical limitations, Pals holds, by permitting people to
work reduced hours for a few weeks or months until re-
cuperation is complete. The sort of representations that
Opsteen provided to the SSA and the ERISA plan went
beyond a layman’s self-assessment. He supplied medical
documentation of a serious, disabling, and permanent con-
dition. His physician could not explain his about-face in this
litigation. He did not suggest, for example, that Opsteen
No. 04-2816                                               5

suffered a variety of brain injury that sometimes appears
more serious initially than it does a few years later. There
is no medical rationale for the new position.
  Keller could not accommodate a permanent disability
with part-time employment for a few months, though it
went beyond what Pals required by putting Opsteen on six
months’ leave to see whether improvement was likely, and
not letting him go until it had medical opinions that he
would remain totally disabled after that period. Nor could
Keller be expected to let Opsteen work a few hours a day;
part-time work is an accommodation suited to physical
weakness, and hours lengthen as strength returns. Mental
shortcomings would have made every hour on the job dan-
gerous to Opsteen and his co-workers, so he has not sug-
gested a part-time job as an option. Pals offers him no
support.
                                                 AFFIRMED


A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—5-18-05
