holding that vocational expert’s testimony satisfied Commissioner’s evidentia-ry burden where it was based on substantial record evidence
How later courts described this case
- holding that vocational expert’s testimony satisfied Commissioner’s evidentia-ry burden where it was based on substantial record evidence
- providing that if deadlines for further administrative proceedings at the fifth step, on which the Commissioner bears the burden of proof, are not met, “a calculation of benefits owed [plaintiff] must be made immediately
- holding that it was not an abuse of discretion to remand for further proceedings where Commissioner failed to meet her burden at step five
- imposing 120-day time limit for proceedings before the ALJ and 60-day time limit for administrative appeal where the claimant “[was] entitled to benefits absent the Commissioner’s providing expert vocational testimony about the availability of appropriate jobs” and the delay was unreasonable due to ALJ error
Written by the judges who cited it.
The opinion
JACOBS, Circuit Judge,
dissenting in part.
Our initial (unanimous) opinion ordered the calculation of Social Security benefits if the Commissioner fails to take final action on Butts’ application in compliance with two successive 60-day time limits. See Butts v. Barnhart, 388 F.3d 377, 387 (2d Cir.2004). The Commissioner seeks rehearing, inter alia, on the ground that this ultimatum creates the live possibility that Butts will be awarded disability benefits absent any finding that he is “disabled” as that term is defined in the Social Security Act (“SSA”), 42 U.S.C. § 401 et seq. The petition for rehearing has led me into the light. I respectfully dissent insofar as the majority requires that, under certain conditions, benefits be awarded in the absence of a finding of “disability.” Such an award of benefits is: (i) incompatible with the SSA, our prior precedent, the Appropriations Clause, the doctrine of sovereign immunity, and Fed.R.Civ.P. 55(e); (ii) inconsistent with our ruling that a remand of Butts’ application to the Commissioner was within the district court’s discretion; and (iii) unnecessary.
I
“Every individual who ... is under a disability ... shall be entitled to a disability insurance benefit.” 42 U.S.C. § 423 (a)(1). It surely follows that someone who is not, is not. “Disability” is statutorily defined:
The term “disability” means—
(A) inability to engage in any substantial gainful activity by reason of any medically determinable 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 peripd of not less than 12 months ....
Id. § 423(d)(1) (emphasis added).
By regulation, the -Social Security Administration has established a five-step procedure for evaluating disability claims. See 20 C.F.R. § 404.1520 (a)(4). The claimant is assigned the burden through the first four steps (to show that he can no longer perform his past work due to a physical or mental impairment), and the Commissioner is assigned the burden at the fifth and final step (to show that the claimant can perform no other job in the national economy). See Curry v. Apfel, 209 F.3d 117, 122-23 (2d Cir.2000). This burden shifting regime does not, however, alter or amend the statutory definition of the term “disability.”
Thus even an individual who is unable to perform his past work is under a “disability” only if he cannot engage in any other substantial gainful work that exists in the national economy:
An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423 (d)(2)(A).
The SSA nowhere empowers this Court to award disability benefits as a penalty *108 for the Commissioner’s delay. This is settled law: “absent a finding that the claimant was actually disabled, delay alone is an insufficient basis on which to remand for benefits.” Bush v. Shalala, 94 F.3d 40, 46 (2d Cir.1996) (emphasis added).
The majority distinguishes Bush v. Shalala on the ground that Bush v. Shalala concerned a “step four” inquiry whereas the current appeal concerns a “step five” inquiry, and “the evidence at the fifth stage would compel a finding that Butts was disabled absent the Commissioner’s meeting her burden of making a contrary showing.” Majority Op. at 104. The majority’s reasoning is based on the (insupportable) assumptions that: (i) a presumptive “disability” exists once the claimant has shown at step four an inability to perform his previous work; and (ii) the claimant can be statutorily entitled to benefits at that point if the Commissioner delays in the discharge of her burden of proof at step five. The fifth step of the analysis is indispensable, however, because it bears upon the sole question that determines statutory “disability”: the inability to work in the national economy. The only conclusion established at step four — the inability to do one’s prior work — may say nothing at all about “disability” as defined in the statute, or as commonly understood. A trivial hearing loss may end the career of a piano tuner without impairing in the slightest way the capacity to work at any other job whatsoever.
No agency or court has yet found Butts “disabled”: as we observed in our initial opinion, “the evidence in the instant case is sufficient to support a finding that Butts could perform sedentary and perhaps some light work.” Butts, 388 F.3d at 386 . The SSA and Bush v. Shalala squarely bar an award of benefits absent a sufficient finding of disability by some competent entity. See Bush v. Shalala, 94 F.3d at 46 . An award of disability benefits as a penalty for bureaucratic delay — rather than pursuant to the statutory definition of “disability” — is an act that exceeds our authority under the SSA. Such an award likewise runs afoul of the Appropriations Clause and the doctrine of sovereign immunity, not to mention Fed.R.Civ.P. 55(e).
II
Our initial opinion recited that we “review the district court’s order of remand for abuse of discretion,” Butts, 388 F.3d at 385 , and concluded that “[t]he district court’s remand for further proceedings was ... within its discretion,” id. at 387 . The revised ruling issued by the majority — that benefits be awarded if it turns out that the proceedings on remand violate this Court’s time limits — amounts to an implicit holding that the district court abused its discretion in failing to set the exact time limits that this Court imposed (and has now altered). In effect, this Court has applied a de novo standard of review, notwithstanding our rulings that: (i) our review is for abuse of discretion; and (ii) there was no such abuse in this case.
III
This Court and the district court have ample contempt powers to assure that a thing be done, and that it be done on time; the Commissioner nowhere challenges those powers. The award of disability benefits as a sanction is not among those powers.