Record and brief — Sanchez v. Schweiker

voted

[ cs Supreme Court, U.S

. F ILeEp

11-1281 QEC 16 1981

| ALE x ann: \.. STEVAS,

SPtteertatieeteneeene.,

NO. ,

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

NELDA SANCHEZ

Petitioner

Vv.

RICHARD S. SCHWEIKER,

Secretary of Health and Human Services

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BILL MCKEE

— Aid Association

434 South Main, Suite 300

San Antonio, Tx. 78204

(512) 227-0111

COUNSEL FOR PETITIONER

December 11, 1981

Question Presented

Whether the statutory five-month

waiting period between the onset of

disability and the entitlement to

Social Security Disability Insurance

Benefits begins on the date the wage

earner becomes disabled or on the first

day of the next month.

TABLE OF CONTENTS

Question Presented............... i

Table of Authorities............. iv

MS ck eae cce ne acca 2

PS 6 oases phe sceseseeees 2

ID BRN sc cdcc ese csecens 3

Statement of the Case............ 4

Reasons for Granting the Writ.... 7

l. The decision below

conflicts with the

decision of the Sixth

Circuit in Otworth v.

Finch, 435 F.2d 542

CG CAR. BOO)... cceecke 7

2. The United States

Court of Appeals has

decided an important

question of federal law

which has not been, but

which should be settled

ff, re 18

ii

Conclusion

Certificate of Service

Appendix

Fifth Circuit Judgment

Gh TEIN. bc vcccccceccess

Fifth Circuit Opinion

OU Ts 5 6 6 00 ce cccccess

Fifth Circuit Original

Da csntacenesecccoceseve

District Court Judgment,

Western District of Texas,

San Antonio Division........

District Court Order,

Western District of Texas,

San Antonio Division........

Magistrate's Findings

and Recommendatii:ns,

Western District of Texas,

San Antonio Division........

Action of Appeals Council

on Request for Review.......

iii

>. © ££ ee £6 6 6 Oe 6 eee &6 ea ee a 6 8 @

21

22

23

23

25

50

62

63

65

82

TABLE OF AUTHORITIES

Cases

Davis v. Schweiker,

641 F.2d 283

Ge GOR. BOGRD. cc cccccces

Gammons v. Domestic Loans

of Winston-Salem, Inc.

243 F.Supp. 819,822

GE.B.B.C. 1976)... .ccccece

Malveaux v. Mathews,

546 F.2d 108

CSG COP. UGT7) 2. cc ccvcees

Matter of PRS Products,

Inc., 574 F.2d 414,419

os Be ie. ) Fee

Moore v. Industrial Life

Ins. Co., 549 S.W.2d 47,48

(Tex,Civ.App,-Dallas 1977,

wate wet’é &.8.6.). 200500.

iv

17,19

10

17

Morales v. Reading &

Bates Offshore

Drilling Co., 392

F.Supp. 41,45 (N.D. Okla

SEVEP cv c-ccovecceoseenseue 10

Otworth v. Finch,

435 F.2d 542 (6th Cir.

7,9,11

BOVE « céécvcsivovessevenss 12,17,19

Sanchez v. Schweiker,

643 F.2d 1128 (Sth Cir.

1981) (Sanchez I)........ 2,6,9,11,15

Sanchez v. Schweiker,

643 F.2d at 1131....... 15

Sanchez v. Schweiker,

656 F.2d 966 (5th Cir.

1981) (Sanchez II)...... 14-i6'18

Southwestern Community

College v. Davis,

442 U.S. 397 (1979)... 14

Statutes

$6-0.8.6. S1484(1).........-

i errr

42 U.S.C. §422(c)(3)....----

42 U.S.C. §423(c) (2) (1976)

Regulation

20 C.F.R. §404.315(d) (1980).

Legislative History

H.R. Rep. No. 231,92d

Cong., lst Sess. 56,

reprinted in 1972

U.S. Code & Ad. News

PEs Se evesoccccccocecs

vi

wo nN UW WwW

18

14

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

NELDA SANCHEZ,

Petitioner,

Vv.

RICHARD S. SCHWEIKER,

Secretary of Health and Human Services

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nelda Sanchez, wife of the wage

deceased wage earner, Chris Sanchez,

respectfully petitions for the issuance

of a writ of certiorari to review the

decision of the United States Court

of Appeals for the Fifth Circuit dated

September 17, 1981.

Opinions Below

The opinion of the Court of Appeals

for the Fifth Circuit is reported at

656 F.2d 966. This opinion granted the

Secretary's Petition for a‘Rehearing,

and vacated the panel's prior opinion

in the case which was reported at

643 F.2d 1128. The panel's final

opinion affirmed the judgment of the

United States District Court for the

Western District of Texas without

opinion.

Jurisdiction

The judgment on rehearing by

the United States Court of Appeals for

the Fifth Circuit was entered on

September 17, 1981. This Petition

-

for Certiorari is filed less than 90

days from that date. The jurisdiction

of this Court lies under 28 U.S.C.

§1254(1).

Statute Involved

Section 223(c)(2) of the Social

Security Act, 42 U.S.C. §423(c) (2)

(1976), provides as follows:

The term "waiting period” means, in

the case of any application for dis-

ability insurance benefits, the

earliest period of five consecutive

calendar months—

(A) throughout which the

individual with respect

to whom such application

has been filed has been

under a disability, and

(B) (i) which begins not

earlier than with the first

day of the seventeenth month

before the month in which

such application is filed

if such individual is insured

for disability insurance in

such seventeenth month, or

(ii)if he is not so insured

in such month, which begins

ote

not earlier than with

the first day of the

first month after such

seventeenth month in

which he is so insured.

Notwithstanding the preceding provi-

sions of this paragraph, no waitin

period may begin for any individua

before January 1, 1957.

Statement of the Case

On November 15, 1977, the

wage earner, Chris Sanchez, was forced

to leave his job by his worsening

medical condition. When his condi-

tion continued to keep him out of work,

he filed an application for Social

Security disability benefits on

March 6, 1978. The Administrative

Law Judge who conducted the hearing

on the application found the

wage earner to have been disabled

beginning November 15, 1977. The

che

wage earner was then advised that the

first month for which he was entitled

to receive benefits would be May 1978.

The wage earner filed an administra-

tive appeal contending that since

he became disabled in November 1977,

the statutory five-month waiting period

between the onset of disability and

the payment of benefits was completed in

March 1978, and the first month he was

entitled to receive benefits would be

April 1978, rather than May 1978. The

Appeals Council of the Social Security

Administration disagreed contending that

the waiting period did not begin until

December 1, 1977. The wage earner then

filed an action in the United States

District Court for the Western District

of Texas. Jurisdiction lay under

42 U.S.C. §405(g). During the pendency

of that action, the wage earner passed

o$e

away and his wife, Nelda Sanchez,

was substituted as the party plaintiff.

On October 9, 1980, the District Court

affirmed the Secretary's decision and

granted the Secretary's Motion for

Summary Judgment.

On appeal the United States

Court of Appeals for the Fifth Circuit

initially agreed with the wage earner,

reversed the decision of the District

Court and remanded the case to the

Secretary for the award to Plaintiff

of an additional month of disability

benefits. Sanchez v. Schweiker,

643 F.2d 1128 (Sth Cir. 1981)

(Sanchez I). Following the Secretary's

Petition for a Rehearing, however,

the Court of Appeals vacated the

prior panel opinion and issued

a new opinion affirming the judgment

a§e

of the District Court. Sanchez v.

Schweiker, 656 F.2d 966 (5th Cir.

1981) (Sanchez II).

Reasons for Granting the Writ

1. The decision below conflicts

with the decision of the Sixth

Circuit in Otworth v. Finch,

435 F.2d 542 (6th Cir. 1970).

Otworth v. Finch, supra, held

that the waiting period begins on

the date the wage earner becomes

disabled. In that case the Sixth

Circuit considered the question of

how early a wage earner may begin

a period of trial work. 42 U.S.C.

§422(c) (3). A wage earner may not

begin trial work until after the

waiting period. Only one waiting

period is defined in the Social

Security Act, 42 U.S.C. §423(c)(2),

ae

and it controls both when trial

work may begin and when the wage

earner is first entitled to dis-

ability benefits. The Sixth Cir-

cuit held that for that wage earner

the waiting period (at that time a

six month period) began on the date

the disability began, December ll,

1964, and ended six months later

on June 11, 1965. Accordingly, when

the wage earner returned to work on

June 25, 1965, he had completed his

waiting period and was entitled to

a trial work period. The Sixth

Circuit reasoned that the Social

Security Act is remedial legislation

and should be construed liberally

in favor of the claimant, and that

to adopt the Secretary's inter-

pretation that the waiting period

-8-

begins with the month after the

disability would impose on every

wage earner a different period

depending on how late in the month

the disability occurred. . Otworth v.

Finch, supra, at 543.

The Fifth Circuit relied

heavily on this reasoning in its

original decision in this case,

Sanchez I. It also found support for

this view from a close reading of the .

statute. Thus the Court reasoned

that a “calendar month" is generally

held to run from a given date in one

month to the same numerical day in

the next month. Moore v. Industrial

Life Ins. Co., 549 S.W.2d 47,48

(Tex.Civ,App.-Dallas 1977, writ ref'd

n.r.e,); Matter of PRS Products, Inc.,

574 F.2d 414,419 (8th Cir. 1978);

ofe

Gammons v. Domestic Loans of Winston-

Salem, Inc., 423 F.Supp. 819,822

(M.D.N.C. 1976); Morales v. Reading &

Bates Offshore Drilling Co., 392 F.Supp.

41,45 (N.D. Okla. 1975). Moreover,

the statute refers to the "earliest

period” of five consecutive calendar

months which suggests that the wait-

ing period begins when the disability

begins rather than arbitrarily wait-

ing until the first day of the fol-

lowing month. Finally, the Court

noted several references in the

statute to waiting periods which

may begin on “the first day of the

17th month" or on “January 1, 1957"

which indicate that a waiting period

may begin on days other than the

first day of the month. The Court

-10-

concluded: "We agree with the

Sixth Circuit's reasoning in Otworth

and will not require claimants for

disability benefits to wait longer

for those benefits to accrue than

the statute obviously contemplates."

Sanchez I, at 1131.

In reversing itself on

rehearing, the Fifth Circuit did

not address any of these considera-

tions. Rather the Court in Sanchez II

reasoned that the Social Security

Act is set out in terms of entire

month increments, that the legisla-

tive history supports the Secretary's

interpretation, that the Secretary's

interpretation is entitled to great

weight and that the Secretary's

interpretation is simpler to administer.

-

sile

The Court did not resolve its

direct conflict with the holding in

Otworth.

Although it is true that

the Social Security Act is generally

set out in terms of entire month

increment:, it does not necessarily

follow that the waiting period cannot

begin on any given day of the month.

For example, the wage earner in this

case became disabled on November 15.

One may either count the five month

period as ending on the following

April 15, or one can count the

five months of November, December,

January, February and March as

fulfilling the waiting period. In

either case, the claimant is entitled

to benefits for the month of April,

o12<

Nor is it difficult or novel to

pay benefits for the last half of

amonth. As is true in the Supple-

mental Security Income program, the

Aid to Families with Dependent Child-

ren program, the Food Stamp progran,

and most other forms of government

benefits, the claimant would simply

receive an entire month's worth of

benefits even though he was not

technically eligible for all 30

or 31 days of the first month of

entitlement. The claimant for SSI,

for example, who applies on the last

day of the month, ultimately receives

an entire month's worth of benefits

for the month in which he applied.

This, the Petitioner's interpretation

of the waiting period is no more

.

el3~

administratively burdensome than

the Secretary's, and is much less

arbitrary.

The Fifth Circuit's primary

reason in Sanchez II for affirming

the Secretary's construction was

the legislative history that accompa-

nied the 1972 amendment when the

waiting period was reduced from

six months to five months. H.R. Rep.

No. 231,92d Cong., lst Sess. 56,

reprinted in 1972 U.S. Code & Ad.

News 4989,5042. The Court erred in

relying so heavily on this legisla-

tive history for a number of reasons.

First, recourse to legislative

history is inappropriate when the

meaning of a statute is clear on its

face. Southeastern Commmity College

-14-

v. Davis, 442 U.S. 397 (1979).

In Sanchez I the Fifth Circuit,

after a very close scrutiny of the

language of the statute, found that

it “obvious ly" intended for the

waiting period to begin on the date

the disability began rather than

the first day of the next month.

Sanchez v. Schweiker, 643 F.2d at

1131. Second, the legislative

history the Court looked to concerned

not when the waiting period begins

but when the waiting period ends.

The example cited in the legisla-

tive history was intended to demon-

strate how the waiting period was to

be shortened from six to five months.

The Congressman quoted in the legis-

lative history adopted without

— te

question the Secretary's inter-

pretation of when the waiting period

begins, because the beginning date

of the waiting period was not being

altered by the proposed amendment.

Whether the waiting period shouid

begin when the disability begins,

or some later date, was not being

debated. The Secretary's onset

date was used merely for convenience

in the example of how the waiting

period would thereafter be five

months rather than six. The legis-

lative history in no way supports

the Secretary's construction of

how the onset date is determined.

Neither did the Fifth Circuit

in Sanchez II resolve its direct

conflict with its own earlier hold-

-16-

ings in both Davis v. Schweiker,

641 F.2d 283 (Sth Cir. 1981) and

-Malveaux v. Mathews, 546 F.2d 108

(Sth Cir. 1977). In Davis and

Malveaux the Fifth Circuit held

that the waiting period begins on

the date the disability begins and

ends on the same date of the fifth

month thereafter. Thus, not only

are the Fifth and Sixth Circuits

in disagreement on the issue, but

there is confusion in the Fifth

Circuit itself as to when the wait-

ing period begins.

Moreover, added to the weight

of authority of Otworth, Davis

and Malveaux is the Secretary's own

regulation which states that the

first month of the five month wait-

ahJe

ing period is not the month after

disability but rather the month

in which the claimant becomes

disabled. "This 5-month waiting

period begins with a month in

which you were both insured for

disability and disabled.” 20 C.F.R.

§404.315(d) (1980). In summary,

Sanchez II conflicts with every

other authority on point.

2. The United States Court

of Appeals has decided

an important question of

federal law which has not

been, but which should

be settled by this Court.

The issue of when the wait-

ing period begins has never been

addressed by this Court. It is a

question of enormous importance both

to the Social Security Administration,

-18-

and the millions of wage earners

and their dependents who receive

Disability Insurance Benefits.

If the Petitioner's interpretation

is correct, then these many claimants

have been denied their full entitle-

ment to their invested earnings and

have had to stretch their meager

interim resources for an additional

month while awaiting their first

disability check. Moreover, as

exemplified by the Otworth and Davis

decisions, the proper interpretation

of the waiting period also controls

the question of when a disabled

wage earner may begin a period of

trial work. The Secretary's inter-

pretation would require the wage

earner to remain out of the work

-19-

force for up to an additional

month before venturing into a

trial work period. Inasmuch as

the same waiting period controls

both the initiation of trial work

and the timing and amount of bene-

fits awarded to every recipient,

the question of when the waiting

period begins merits disposition

by this Court.

-20-

Conclusion

For these reasons, a Writ

of Certiorari should issue to review

the judgment and opinion of the

United States Court of Appeals for

the Fifth Circuit.

Respectfully submitted,

B00 Wekee

BILL MCKEE

Legal Aid Association

434 South Main, Suite 300

San Antonio, Texas 78204

(512) 227-0111

ATTORNEY FOR PETITIONER

CERTIFICATE OF SERVICE

Pursuant to Rules 28.3 and

28.4 of the U.S. Supreme Court

Rules, I hereby certify that true

copies hereof have been sent by

Certified Mail, Return Receipt

Requested, to: Gabriel Imperato,

Attorney, Department of Health and

Human Services, Office of General

Counsel, 6401 Security Blvd., Room

642 Altemeyer, Baltimore, Md. 21235

and Solicitor General, Department

of Justice, Washington, D.C. 20530

on this 14° day of December, 1981.

| Office - Supreme Court, U.

e : | FILED

I-12 8}

DEC 16 YB)

ALEXANDER L. STe Wag,

NO. —

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

NELDA SANCHEZ

Petitioner

We

RICHARD S. SCHWEIKER,

Secretary of Health and Human Services

Respondent

APPENDIX

BILL MCKEE

Legal Aid Association

434 South Main, Suite 300

San Antonio, Tx. 78204

(512) 227-0111

COUNSEL FOR PETITIONER

December 11, 1981

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OCTOBER TERM, 19

NO. 80-2355

D.C. Docket No. SA-79-CA-243

NELDA SANCHEZ,

Plaintiff-Appellant,

versus

RICHARD S. SCHWEIKER, Secretary

of Health and Human Services,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

Before CHARLES CLARK, REAVLEY and WILLIAMS,

Circuit Judges.

JUDGMENT ON REHEARING

This cause came on to be heard on

the defendant-appellee's petition for

rehearing ;

-23-

ON CONSIDERATION WHEREOF, It is

now here ordered and adjudged by this

Court that the opinion originally

entered by this Court on April 27, 1981

is vacated; and that the judgment of

the said District Court appealed from

is hereby affirmed.

September 17, 1981

ISSUED AS MANDATE: Oct. 9, 1981

=2he

Nelda SANCHEZ, Plaintiff-Appellant,

v.

Richard S. SCHWEIKER, Secretary of

Health and Human Services,

Defendant-Appellee.

No. 80-2355.

United States Court of Appeals,

Fifth Circuit.

Unit A

Sept. 17, 1981.

Appeal from the United States District

Court for the Western District of Texas.

ON PETITION FOR REHEARING

Before CHARLES CLARK, REAVLEY and

WILLIAMS, Circuit Judges.

PER CURIAM:

We GRANT the petition for a

rehearing of the Secretary of Health

and Human Services and VACATE our prior

panel opinion. See Sanchez v. Schweiker,

643 F.2d 1128 (5th Cir. 1981).

=25-

The issue in this appeal is

whether the statutory five month

waiting period between the onset of

a disability and the entitlement to

Social Security disability insurance

benefits of a wage earner, who becomes

disabled on a date other than the first

day of a month, begins on the date the

wage earner becomes disabled or on the

first day of the next month. - In our

original panel opinion we held that the

1

The Social Security Act provides

disability insurance benefits to eligi-

ble wage earners "for each month begin-

ning with the first month after his

waiting period.” Act. §223(a)(1) (i);

42 U.S.C. §423(a) (1) (i) (1976).

The term "waiting period" means, in

the case of any application for

disability insurance benefits, the

earliest period cf five consecutive

calendar months--

-26-

five month waiting period for disability

insurance benefits begins on the date

the wage earner becomes disabled. We

concluded that the term "calendar month,"

as it is used in the clause defining

the waiting period as "the earliest

period of five consecutive calendar

months...throughout which the indivi-

dual...has been under a disability,"

(A) throughout which the individual

with respect to whom such appli-

cation has been filed has been

under a disability, and

(B) (i)which begins not earlier than

with the first day of the seven-

teenth month before the month

in which such application is filed

if such individual is insured for

disability insurance in such

seventeenth month, or (ii)if he

is not so insured in such month,

which begins not earlier than with

the first day of the first month

after such seventeenth month in

which he is so insured.

Act §223(c)(2):42 U.S.C. §423(c) (2)

(1976).

-27-

- —-_

Social Security Act §223(c)(2); 42

U.S.C. §423(c) (2) (1976), "means a

month's period of time, whether it be

thirty-one, thirty, or twenty-eight

days." 643 F.2d at 1130. After

considering the petition for a rehearing

of the Secretary and the answer of the

appellant, see Fed.R.App.P. 40(a),

we are persuaded that the term "calendar

month" as it is used in defining the

waiting period for Social Security

disability insurance benefits means

a period of time measured from the

first day of a month to the last day

of a month. Therefore, the five month

waiting period for a wage earner who

is disabled on a date other than the

first day of a month begins on the first

day on the succeeding month.

-28-

The wage earner, Chris Sanchez,

brought this action in United States

district court complaining that the

Secretary of Health and Human Services

had misinterpreted the statutory

definition of "waiting period" and, as

a result, had deprived him of Social

Security disability benefits. Sanchez

became disabled on November 15, 1977.°

Sanchez originally filed this action

in the district court. During its

pendency, however, he died and his

wife, Nelda Sanchez, was substituted

as plaintiff. For simplicity's sake,

throughout this opinion the plaintiff-

appellant is referred to as "Sanchez." .

It is conceded by all parties that

Sanchez became disabled within the

meaning of §223(d)(1) of the Social

Security Act, 42 U.S.C. §423(d) (1)

(1976), on November 15, 1977.

~29-

The Secretary determined that Sanchez'

waiting period began on the first day

of the meath following the onset of

his disability, December 1, 1977, and

that it expired five months later at

the end of April 1978. According to

the Secretary's interpretation, Sanchez

was first entitled to benefit payments

for May 1978. Sanchez claimed that

under the Act his waiting period began

with the onset of his disability. Thus,

according to his analysis, his waiting

' period ran from November 15, 1977 to

April 15, 1978, and disability benefits

were due immediately thereafter. The

district judge agreed with the Secretary.

Sanchez filed this appeal. We now

affird the judgment of the district

court.

-30-

Critical to our decision in this

appeal is an understanding of the

relationship between Social Security

disability insurance benefits and Social

Security old-age insurance benefits.

As revised in 1939, the Social Secu-

rity Act provided that otherwise

qualified individuals who had attained

the age of 65 were entitled to old-age

insurance benefits. Social Security

Act Amendments of 1939, ch. 666,sec.

201,§202(a), 53 Stat. 1362-1363. The

law specifically stated that recipients

were entitled to benefits "for each

month" and that benefits began with

the first “month...such individual

bec[a]me...entitled."” Id.

By the 1950-s, Congress had become

acutely aware of the plight of the

aie

disabled worker. It was apparent

that state disability benefit programs

were not functioning effectively.

Men and women, who were insured to

receive old-age benefits under the

Social Security Act and were no longer

able to work, were being forced in a

period of destitution after the onset

of their disability until they were

eligible to receive old-age benefits

at age 65. See H.R. Rep.No. 1189,

84th Cong., lst Sess. 3-6 (1955);

S.Rep.No. 2133, 84th Cong. ,2d Sess.

127-34, reprinted in [1956] U.S.Code

Cong.§ Ad. News 3877, 3941-47 (minority

views of Sens. George, Long & Douglas).

In order to eradicate this problem,

Congress expanded the Social Security

program to provide disability insurance

-32-

benefits as an adjunct to old-age

benefits. Under the disability

insurance program as it was first

established, those insured under the

Act who were at least 50 years of age

and could prove that they were unable

"to engage in any substantial gainful

activity by reason of any medically

determinable physical or mental im-

pairment which can be expected to re-

sult in death or to be of long-

continued and indefinite duration,"

Social Security Amendments of 1956,

ch. 836, sec. 103,§223(c)(2), 70 Stat.

815, codified as amended, 42 U.S.C.

§423(d) (1) (A) (1976), were entitled

to receive disability insurance bene-

fits. Id. §223, 70 Stat. 815.

Like the old-age insurance program, a

o 330

disabled individual was entitled to

benefits "for each month, beginning

with the first month...he bec[a]me

so entitled." Id. §223(a)(1), 70

Stat. 815; see H.R.Rep.No. 1189,

84th Cong., lst Sess. 27 (1955)

("Monthly disability insurance bene-

fits would be payable beginning with

the first month after a...waiting

period.. ."). The disability insur-

ance payment was set at an amount

eqivalent to that which the insured

would have received had he been eli-

gible for old-age insurance benefits.

Social Security Amendments of 1956,

ch. 836, sec. 103, §223(a)(2) 70 Stat.

815; see H.R.Rep.No. 1189, 84th Cong.,

lst Sess. 27 (1955). Because dis-

ability insurance was, in fact, early

-34-

eligibility for old-age benefits,

Congress provided that when the insured

became eligible for old-age benefits

his monthly disability benefits would

cease. Social Security Amendments

of 1956, chp. 836, sec. 103, §223(a) (1)

(B), 70 Stat. 815; see H.R.Rep.No.

1189, 84th Cong., lst Sess. 27 (1955).

It is against this background

of eligibility determinations and

benefit payments "for each month" that

we must interpret the statute before

us now. See United States v. Alexander,

602 F.2d 1228,1231 (Sth Cir. 1979)

("a particular clause or phrase of a

statute cannot be read in isolation

but must be construed as part of a

statutory whole"); Haberman v. Finch,

418 F.2d 664,666 (2nd Cir. 1969).

_

When originally enacted as a supple-

ment to old-age insurance benefits in

1956, Congress provided that an

applicant for disability insurance

benefits must satisfy a waiting

period of "the earliest period of

six consecutive calendar months.'*

Social Security Amendments of 1956,

ch. 836, sec. 103, §223(c)(3), 70

Stat. 816, codified as amended,

42 U.S.C. §423(c) (2) (1976).

Although the legislative history

provides only a limited explanation

Congress reduced the statutory

waiting period for disability

benefits from six to five months

in 1972. Social Security Amendments

of 1972, Pub.L. No. 92-603, sec.

116(a), 86 Stat. 1350.

96

of Congress’ interpretation of this

5 we are convinced that

provision,

Congress meant to continue the establi-

shed practice under the Social Secu-

rity Act whereby recipients both

qualified for and received benefits

for each month. The Social Security

Admendments of 1956 itself defines

an eligible recipient by providing

"fajn individual shall be insured

for disability insurance benefits in

Because the Senate Finance Committee

recommended ayy providing dis-

ability benefits under the Social

Security Act, see S.Rep.No. 2133,

84th Cong., 2nd Sess. 3-5, reprinted

in [1956] U.S.Code Cong.& Ad. News

3877,3879-81, the only explanation

of the statutory waiting period is

contained in the report of the House

Ways and Means Committee.

-37-

any month." Social Security

Amendments of 1956, ch. 836, sec. 103,

§223(c)(1), 70 Stat. 815. The

accompanying House report notes that

“disability insurance benefits would

be payable with the first month.”

H.R.Rep. No. 1189, 84th Cong.,

lst Sess. 27 (1955). Im that context

the term "calendar month" as it is

used in section 223(c)(2) of the

Social Security Act, 42 U.S.C. §423(c)

(2) of the Social Security Act, 42

U.S.C. §423(c) (2) (1976), means a

period of time beginning on the first

day of the month and ending on the

last day of the same month.

We are fortified in our conclusion

by examples in reports of both of

the congressional committees charged

=98-

with overseeing the operation of

the Social Security Act. When

section 223(c)(2) of the Social

Security Act, 42 U.S.C. §423(c) (2) (1970),

was amended in 1972 to reduce the

waiting period for disability insurance

benefits from six to five months , °

reports accompanying the legislation

in both Houses of Congress included

a case demonstrating a situation

in which, as here, the wage earner

became disabled on a date other than

6

See note 4, supra.

-39-

7

the first day of the month. Both

We, of course, recognize that a

report of a congressional committee

in 1972, 16 years after Congress

enacted the disability insurance

program in the Social Security

Admendments of 1956, neither forms

a part of the legislative history

surrounding the passage of the

1956 Amendments nor sheds any

light on the intent of the Congress

that originally enacted the disabi-

lity insurance program. Oscar Meyer

& — v. Evans ,441 U.S. 750,757, 39

72, 60 L.Ed. 2d 609

(1979). Nevertheless, "Congress

is presumed to be aware of an

administrative...interpretation of

a statute and to adopt that inter-

pretation when it re-enacts a statute

without change." Lorillard v. Pons,

434 U.S. 575,580,985.Ct. 866,870,

55 L.Ed.2d 40 (1978). Thus, here

when Congress re-enacted the statu-

tory waiting period without a

change in the language other than

substituting a "five" for a "six,"

and it referred in its committee

reports to the current administrative

interpretation, we are guided by the

administrative interpretation of the

statute as reflecting the intent of

Congress. United States v. Board of

Commissioners,

S.Ct. 965,980,55 L. Ed. 2d 148(1978) .

-40-

examples show that the statutory

waiting period begins on the first day

of the month following the onset of

the disability. Specifically, the

report of the House Ways and Means

Committee provides:

Your committee's billwould

reduce the waiting period

for disability insurance

benefits by one month. Under

present law, entitlement to

disability benefits cannot

begin until after a worker

has been disabled through a

waiting period of 6 consecutive

full months. For example,

if a worker becomes disabled

on January 10, the waiting

period is the 6 full months

February through July, his

first month of entitlement to

benefits is August, and the

first benefit check is payable

in early September....[T]his

latter provision would not be

changed by your committee's bill.

H.R.Rep.No. 231,92d Cong.,lst Sess.

56, reprinted in [1972] U.S.Code & Ad.

-4]-

News 4989,5042.°

We are also reluctant to

substitute our construction of the

statute

for that of the Secretary.

The report of the Senate Finance

Committee incorporated the same

example used in the report of

the House Ways and Means Committee.

S.Rep

Sess.

Under present law, entitle-

ment to disability benefits

cannot begin until after a

worker has been disabled

throughout a waiting period

of 6 consecutive full months.

For example, if a worker

becomes disabled on January

10, the waiting period is the

6 full months February through

July; his first month of

entitlement to benefits is

Ausust, and the first benefit

check is payable in September.

No benefit is payable, however,

unless the disability is ex-

pected to last (or has lasted)

at least 12 consecutive months,

or to result in death.

-No. 1230, 92nd Cong., 2d

158 (1972).

-42-

The Secretary’ of Health and Human

Services is the principal executive

official charged with administering

the Social Security Act. He and

his predecessors consistently have

interpreted the statutory waiting

period for disability benefits to

begin on the first day of a month.

See, e.g. 20 C.F.R. §404.308 (1965),

29 Fed.Reg. 12,286 (1964); 20 C.F.R.

§404.308(1971), 33 Fed.Reg. 13 (1968).

Regulations adopted in 1964 demon- .

strate that the Secretary and his

predeceassors consistently have

interpreted the statutory waiting

period to consist of “calendar

months" that begin on the first

day of a month and end on the last

day of a month. The 1964 regula-

tions provided that "[a] waiting

period is...6 full consecutive

calendar months.” 29 Fed.Reg.

12 ,286(1964) , codified in 20 C.F.R.

-43-

Furthermore, as demonstrated by the

congressional committee reports, when

§404.308(1965) (emphasis added).

The 1964 regulations also provided

that if an individual's disability

began “on the first day of the

month and continues through the last

day of the month, such month shall

be considered as a full calendar

month." Id. If the Secretary had

construed the statute as beginning

the waiting period on a date other

than the first day of a month, there

would have been no reason for the

Secretary to include this provision.

A later revision of the regulations

clearly demonstrates that the Secre-

tary has adhered to his interpreta-

tion that the statutory waiting

period begins on the first day of

a month. These regulations origina-

lly appeared in 1,;/4 and also refer

to a waiting period as consisting

of "full consecutive calendar months.

39 Fed. Reg. 21,047 (1974), codified

in 20 C.F.R. §404.308(1979) (emphasis

added). These regulations also

contain the example of the wage

earner who becomes disabled on the

first day of the month. As before,

~44-

Congress shortened the waiting

period from six to five months it did

so fully aware of the Secretary's

interpretation of the statute. Under

these circumstances, the Secretary's

construction of the statutory waiting

period is entitled to “great weight."

See Saxbe v. Bustos, 419 U.S. 65,74,95

S.Ct. 272,279,42 L.Ed.2d 231(1974)

this individual's waiting period

begins on the day he became

disabled--the first day of a month.

Id.

The most recent revision of the

regulations does not contain the

specific language used in previous

regulations. See 20 C.F.R. §404.-

320(b) (4) (1981). This revision,

however, was intended to explain

the Secretary's policies in plain

language. No change in substance

was intended. See 44 Fed.Reg.34,479

(1979) ("The primary purpose of this

recodification is to restate the rules

so that they will be easier for the

public to understand and use.").

-45-

("This longstanding administrative

construction is entitled to great

weight, particularly when, as here,

Congress has revisited the Act

and left the practice untouched.

Such a history of administrative

construction and congressional

acquiescence may add a gloss or

qualification to what is on its

face unqualified statutory language.");

Ford Motor Credit v. Vilhollin,

444 U.S. 555,565,100 S.Ct. 790,797,

63 L.Ed.2d 22 (1980); see generally

2 K. Davis, Administrative Law

Treatise §7:14 (2d ed. 1979).

Moreover, we are convinced

that the Secretary's interpretation

of the statute may be justified on

-46-

the grounds of administrative

simplicity. Clearly, his interpre-

tation establishes a more efficient

administration of the disability

insurance program. By selecting one

date, the first day of each month,

rather than many, on which to begin

payments, more of the system's

assets will be channeled away from

administrative costs and to the

beneficiaries.

We hold that Sanchez, who

became disabled on November 15, 1977,

began his statutory waiting period

on December 1, 1977. He completed

his statutory waiting period at the

end of April 1978. He is entitled

to disability insurance benefits

with the month of May 1978. !°

The judgment of the district

court is AFFIRMED.

10

Other than the decision of this

panel in our prior opinion, our

research has uncovered no decision

of another court of the United

States that has squarely decided

whether the waiting period of a

wage earner who is disabled on a

date other than the first day of

a month begins with the onset of

the disability or on the first

day of the next month. Those

opinions that do not seem to

coincide with our decision are,

upon closer examination, cases in

which this issue was not presented

to the court. See, e.g., Malveaux

v. Mathews, 546 F.2d 542,543

(6th Cir. 1970), primarily focused

on the construction of §222(c)

of the Act, 42 U.S.C. §422(c)

(1964), and, to the extent that

the court may have held that the

phrase "'six consecutive months'

means one half year," 435 F.2d at

543, instead of a period of time

beginning with the first day xf a

month, its decision was substantially

undermined by the legislative

history of the Social Security

Amendments of 1972. See text

-48-

accompanying notes 6-8. Indeed,

Many recent opinions are consistent

with our decision. See, e.g.

Davis v. Schweiker, 641 F.2d 283

(5th Cir. 1981); C bell v.

Califano, 483 F.Supp. 1306

(E.D.Pa. 1980).

-49-

Nelda SANCHEZ, Plaintiff-Appellant,

v.

Richard S. SCHWEIKER, Secretary of

Health and Human Services,

Defendant-Appellee.

No. 80-2355

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Unit A.

April 27, 1981.

Appeal from the United States District

Court for the Western District of Texas.

Before CHARLES CLARK, REAVLEY and

WILLIAMS, Circuit Judges.

PER CURIAM:

The Social Security Act

provides for disability insurance

benefits for eligible wage earners

"for each month beginning with the

first month after his waiting period."

-50-

42 U.S.C. §423(a)(1) (i). The waiting

period is defined as "the earliest

period of five consecutive calendar

months...throughout which the indi-

vidual...has been under a disability."

42 U.S.C. §423(c)(2).1 The wage

The entire provision reads as

follows:

(2) The term waiting period means,

in the case of any application for

disability insurance benefits, the

earliest period of five consecutive

calendar months--

(A) throughout which the individual

with respect to whom such applica-

tion is failed has been under a

disability, and

(B) (i) which begins not earlier

than with the first day of the

seventeenth month before the month

in which such application is filed

if such individual is insured for

disability insurance benefits in

such seventeenth month, or (ii) if

he is not so insured in such months,

which begins not earlier than with

the first day of the first month

after such seventeenth month in

which he is so insured.

Sie

earner here, Chris Sanchez,”

brought

this suit claiming that the Secretary

of Health and Humsn Services wrongly

interpreted the statutory definition

of “waiting period" and, in doing so,

deprived him of Social Security dis-

ability benefits. Sanchez claims

Notwithstanding the preceding

provisions of this paragraph,

no waiting period may begin

for any individual before

January 1, 1957.

Sanchez originally filed this

action with the district court.

During its pendency, however,

he died and his wife, Nelda

Sanchez, was substituted as

plaintiff. For simplicity's

sake, throughout this opinion

the plaintiff-appellant will be

referred to as ‘the wage earner"

or "Sanchez."

-52-

that the waiting period began on the

day he became disabled, November 15,

1977. The Secretary contends that

the waiting period began on the first

day of the month following the onset

of the disability, December 1, 1977,

because the statute requires that

only entire calendar months be counted.

The Appeals Council of the Social

Security Administration and the district

court agreed with the Secretary's

interpretation. We disagree.

It is conceded by all parties

that Sanchez became disabled

within the meaning of the

Social Security Act, 42 U.S.C.

§423(d) (1), om November 15, 1977.

-53-

The Secretary, in her interpre-

tation of the statute, puts great

emphasis on the inclusion of the

word "calendar" in the statute.

She contends that a “calendar month"

must run from the first day of a month

to the last day of that same month.

Under her interpretation, Sanchez'

five month waiting period runs from

December 1, 1977 to May 1, 1978,

with May 1978 being the first month

in which he is entitled to benefit

payments.

We decline to give the inclusion

of the word ‘calendar" such importance.

It is true that "calendar month" may

have the meaning given to it by the

Secretary in certain contexts. But

a “calendar month" may also run from

=54-

any given day in one month to the day

of the corresponding number in the

next month. "Calendar month" here

means a month's period of time, whether

it be thirty-one, thirty, or twenty-

eight days. Five consecutive calendar

months of disability for Sanchez ran

from November 15, 1977 to April 15,

1978.

Our interpretation of the

statute is further supported by the

phrase “the earliest period of five

consecutive calendar months" (emphasis

added). This phrase has no meaning

whatsoever if one were to interpret

the statute as did the district court.

Its inclusion suggests that the

waiting period is to begin on the

specific day on which the disability

begins rather than waiting until the

first day of the following month.

«SSe

The language of §423(c)(2)(B) also

supports our interpretation of part

(A) of that section. Subparagraph

(B) sets a limit on the earliest

point at which the waiting period may

begin. The waiting period may begin

no earlier than "the first day of

the seventeenth month" (emphasis

added) before the application of

disability benefits is filed. This

indicates that the waiting period as

defined in (A) may begin on days other

than the first day of a month.

This is a question of first

impression for this circuit. In

Malveaux v. Mathews, 546 F.2d 108

(5th Cir. 1977), however, a panel

of this court set the proper starting

date for disability benefits at

-56-

May 26, 1972, when the disability

began on December 26, 1971. There

the district court had set the date

of eligibility on the date of disabi-

lity, failing to take the five month

waiting period into account. That

panel was not called on to construe

the phrase that we must construe

today, but its judgment contradicts

the Secretary's argument that her

interpretation complies with the

plain meaning of the statute.

The only other court of appeals

to expressly consider the issue of

when the statutory waiting period

begins came to the same decision as

we do. In considering the statute

as it existed before the 1972

o$F~

amendments that changed the waiting

period from six months to five

months, Social Security Amendments

of 1972, Pub.L.92-603, Title I,

§116(a) ,86 Stat. 1350, the Sixth

Circuit said:

"We are unable to accept the

Secretary's interpretation of

the phrase. The Social Secu-

rity Act is to be construed

liberally in favor of the

claimant. pays cson v. Gardner,

370 F.2d 80 r.

Although we iaiittes that a line

must be drawn somewhere with

respect to the ‘waiting period,'

the drawing of that line must

bear some reasonable relationship

to the purposes of the Act. In

the present case, the appellee

had been disabled for over a

half year consecutively. This

period fully satisfies the

requirement of the Act insofar

as the element of time is

concerned. The phrase in question

is concerned with the length of

time an individual must be dis-

abled before he may receive bene-

fits. Under the Secretary's

interpretation, the period of

>

-58-

time required would vary from

individual to individual depend-

ing upon how late in the month

the disability occurred. We

are of the view that it was the

purpose of the Act to provide

a uniform time period for all

cases and that the District

Court's finding that ‘six conse-

cutive calendar months’ means

one half year is the correct

interpretation. The appellee

was disabled and out of work

for over or2 half year and was

thus entitled to the benefits

afforded him under the Act."

Otworth v. Finch, 435 F.2d 542,543

(6th Cir. 1970).*

The Sixth Circuit was considering

42 U.S.C. §422(c)(3), which sets

the allowable period of trial

work for a disabled person entitled

to benefits under the Act. That

section provides: "a period of

trial work...shall begin with the

month in which he becomes entitled

to disability insurance benefits."

Since a person is entitled to dis-

ability insurance benefits only

after he completes the waiting

-59-

We are also required to

consider the remedial purposes of the

Social Security Act and broadly

construe the statute in favor of

coverage if such a construction is

reasonable. Broussard v. Weinberger,

499 F.2d 969,970 (Sth Cir. 1974).

We agree with the Sixth Circuit's

reasoning in Otworth and will not

require claimants for disability

benefits to wait longer for those

benefits to accrue than the statute

obviously contemplates.

period defined in §423(c)(2),

it became necessary for the

court to consider that section

in determining whether the wage

earner had begun work after the

period of trial work began.

-60-

We hold that Sanchez completed

his statutory waiting period on

April 15, 1978, and is entitled

to disability benefits as of that

date.

REVERSED and REMANDED.

-61-

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

NELDA SANCHEZ for

CHRIS SANCHEZ

v. SA 79 CA 243

PATRICIA ROBERTS HARRIS,

Fy meant td a tie

JUDGMENT

This action came on for consi-

deration before the Court and any

objections to the Magistrate's Findings

and Recommendations having been examined

and all issues having been fully consi-

dered:

It is therefore, ORDERED,

ADJUDGED and DECREED that judgment

be rendered in favor of the Defendant.

ENTERED at San Antonio, Texas,

this the 9th day of October, 1980.

FRED SHANNON

-62-

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

NELDA SANCHEZ for

CHRIS SANCHEZ

v. SA 79 CA 243

PATRICIA ROBERTS HARRIS

Secretary of Health,

Education and Welfare

ORDER

On this date came on to be

considered Plaintiff's Motion for

Summary Judgment; and Defendant's Motion

for Summary Judgment. The Court has

carefully examined the Findings and

Recommendations of the Honorable

Robert B. O'Connor, United States

Magistrate, to whom a review of the

case was duly assigned pursuant to

28 United States Code 636(b) and the

Local Rules of the Western District of

-63-

Texas, together with any objections

thereto, and is of the opinion and

finds that the magistrate's report

should be approved, and as approved,

it is adopted and made a part hereof.

It is accordingly

ORDERED that Plaintiff's Motion

for Summary Judgment be DENIED: and

that Defendant's Motion for Summary

Judgment be, and it is hereby in all

things, GRANTED.

SIGNED this the 9th day of

October, 1980.

FRED SHANNON

@64-

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

NELDA SANCHEZ for

CHRIS SANCHEZ

v. SA 79 CA 243

PATRICIA ROBERTS HARRIS

Secretary of Health,

Education and Welfare

FINDINGS AND RECOMMENDATIONS OF

“THE UNITED STATES MAGISTRATE

TO: Honorable Adrian A. Spears

United States District Judge

Plaintiff brings this action

under the provisions of Title 42 United

States Code Section 405(g) seeking

judicial review of the final decision

of the Secretary awarding monthly

disability benefits to Chris Sanchez,

deceased, effective May 1, 1978.

-65-

Specifically, Plaintiff has moved for

summary judgment, requesting the Court

to reverse the decision of the Secre-

tary as being an erroneous interpreta-

tion of the phrase "waiting period"

as that phrase is used in Title 42

United States Code Section 423(c) (2).

The Secretary has filed her motion

for summary judgment contending that

her interpretation of the statute is

consistent with the intent of Congress.

Administrative Proceedings

Plaintiff filed applications

for disability insurance benefits and

supplemental secvzity income on March 6,

1978. Plaintiff alleged that he became

unable to work on November 15, 1977,

because of kidney disease and a heart

-66-

condition. The applications were

denied administratively, both initially

and on reconsideration. Subsequently,

plaintiff was granted a hearing de

novo before an administrative law

judge. On October 13, 1978, the

administrative law judge issued his

decision finding that Plaintiff became

disabled within the meaning of the

Social Security Act on November 15,

1977 (Tr. 15-16).

Plaintiff was advised that

benefits would be payable beginning

in May 1978, after the end of the

statutory five month waiting period.

Plaintiff, through his counsel, appealed

this action to the Appeals Council,

contending that benefits should have

begun on April 15, 1978. The Appeals

-67-

Council affirmed the decision of the

Administration to commence the payment

of benefits in May 1978. (Ir. 3-4).

Issue

The only issue before the Court

in this action is whether the five

months “waiting period" begins on the

day the disability begins or the first

day of the next month.

Authorities

The “waiting period” is defined

in Title 42 United States Code Section

423(c)(2) which provides:

The term "waiting period" means, in the

case of any application for disability

insurance benefits, the earliest period

of five consecutive calendar months--

(A) throughout which the

individual with respect to

whom such application is

filed has been under a

disability, and

-68-

(B) (i) which begins not

earlier than with the first

day of the seventeenth month

in which such application is

filed if such individual is

insured for disability insurance

benefits in such seventeenth

month, or (ii) if he is not

so insured in such month,

which begins not earlier than

the first day of the first

month after such seventeenth

month in which he is so insured.

Notwithstanding the preceding provision

of this paragraph, no waiting period

may begin for any individual before

January 1, 1957.

Prior to the 1972 Amendments of the

Social Security Act, the waiting

period lasted six months rather than

five months as it does now.

The Plaintiff relies upon

Otworth v. Finch, 435 F.2d 542 (6th

Cir. 1970) and Malveaux v. Mathews,

546 F.2d 108 (Sth Cir. 1977). In

-69-

Otworth, the Court held that the

waiting period begins to rum on the

day the disability begins, rather

than on the first day of the next

month. The evidence established that

a wage earner injured his back on

December 11, 1964. The Social Secu-

rith Office was mistakenly informed

that he returned to work on July 2,

1965. The Secretary calculated that

the then six month waiting period

(prior to the 1972 amendment) ended

on July 1, 1965, and that the wage

earner was entitled to a nine month

trial work period beginning July 2,

1965. In January 1966, the Secretary

learned that the wage earner had in

fact returned to work on June 25, 1965.

Because a trial work period cannot

oWGe

begin until after the waiting period

is completed, Title 42 United States

Code Section 422(c)(3), and because

the Secretary figured the waiting

period to begin on January 1, 1965,

and end on July 1, 1965, the Secretary

declared that all the benefits paid

this wage earner was an overpayment

and should be refunded. The District

Court and the Sixth Circuit disagreed.

They both held that the waiting period

began on the date the disability began,

December 11, 1964, and ended six months

later on June 11, 1965. When the wage

earner returned to work on June 25, 1965,

he had completed his waiting period

and, because he had been found disabled,

entitled to a trial work period beginning

oPie

June 20, 1965. The Court held the

wage earner had not been overpaid.

The Court stated:

"The Social Security Act

is to be construed liberally

in favor of the claimant.

Davidson v. Gardner, 370 F.2d

t Ze . Although

we realize that a line must

be drawn somewhere with respect

to the "waiting period,” the

drawing of that line must

bear some reasonable relation-

ship to the purposes of the

Act. In the present case,

the appellee had been disabled

for over a half year consecu-

tively.

This period fully satisfies

the requirement of the Act

insofar as the element of time

is concerned. The phrase in

question is concerned with

the length of time an indivi-

dual must be disabled before

he may receive benefits.

Under the Secretary's inter-

pretation, the period of time

required would vary from

individual to individual depend-

ing on how late in the month

ofhe

the disability occurred.

We are of the view that it was

the purpose of the Act to

provide a uniform time period

for all cases and that the

District Court's findings that

"six consecutive calendar

months’ means one half year

is the correct interpretation.

The Appellee was disabled and

out of work for one half year

and was thus entitled to the

benefits afforded him under

the Act, We are not persuaded

to the contrary by the appellant's

argument that the waiting period

must begin on the first day of

a calendar month since payments

are based on full months."

Otworth at 543-544.

The Malveaux case supra, by the

Fifth Circuit held that the proper

starting date for disabled widows

social security insurance benefits was

the date five months from the date on

which she became disabled (five months

subsequent to 12-26-71 or 5-26-71).

The question of the construction or

oFte

interpretation of Title 42 United

States Code Section 423(c)(2) was not

in issue. The district court found

the claimant's disability began

December 26, 1971, but failed to take

into account the five months "waiting

period" that the statute requires,

and ordered payment to begin December 26,

1971. ‘The Fifth Circuit affirmed

the judgment of the district court but

found the proper starting date for

claimant's benefits was May 26, 1972.

Since the Fifth Circuit Court of

Appeals was not called upon to construe

the phrase “five consecutive calendar

months" contained in Title 42 United

States Code Section 423(c)(2), the

legal isste before the Sixth Circuit

Court of Appeals in Otworth v. Finch,

-7h<

supra was not an issue to be decided

by the Fifth Circuit of Appeals in

Malveaux v. Mathews, supra. The Court

in Malveaux did not refer to the Otworth

case or specifically interpret the

provision of the statute (42 USC 423

(c)(2)) construed by the Sixth Circuit

in Otworth. It, therefore, is not

certain how the Fifth Circuit would

construe the phrase "five consecutive

calendar months", if such were assigned

as a point of error in a future case

on appeal,

In 1972, Section 223(c)(2) of

the Act was amend to reduce the

statutory waiting period to "five

consecutive calendar months." The

House Committee report included the

following example which clearly

oF3e

demonstrates that Congress intended

the waiting period to be composed of

five full calendar months and not a

period of days.

"Your committee's bill would

reduce the waiting period

- for disability insurance bene-

fits by one month. Under

resent law, entitlement to

Sisabi lic benefits cannot

begin ened] atter a worker has

een disable rovghout a

wait eriod o consecutive

months. or example,

a worker becomes disabled on

January 10, the waiting period

is the 6 full months February

through July; his first month

of entitlement to benefits is

August, and the first benefit

check is payable early in

September."

H.R. Rep. No. 92-231, 92nd Congress,

2nd Sessions, reprinted in 1972 U.S.

Code Cong. § Ad. News 5042. The

legislative history of this amendment

to Section 223(c)(2) clearly rebuts

the interpretation Plaintiff contends

a%Ge

was given to the words "five consecu-

tive months" in Malveaux v. Mathews,

supra.

Black's Law Dictionary (revised

Fourth Edition 1968) defines:

_ Calendar Month - One of the

months of the year as enumera-

ted in the calendar.

Calendar Week - A block of

seven days registered on calen-

dar beginning with Sunday and

ending with Saturday.

Calendar Year - The period

from January 1 to December 31,

inclusive.

Webster's New Collegiate

Dictionary (G.&C. Merriam

Co. 1975) defines:

Calendar Year: A period of

a year beginning and ending

with the dates that are

conventionally accepted as

marking the beginning and end

of a numbered year (as January 1

and December 31 in the Georgian

calendar).

aFPe

Webster's New World Dictionary

of the American Language

(The World Publish Company,

Second Collegiate Edition 1972)

defines:

Calendar Year ~ The period of

time from January 1 through

December 31 - distinguished

from fiscal year.

The legal question to be resolved

is the correct starting date of the

“waiting period" which rests on the

interpretation of the phrase "six

consecutive calendar months," contained

in the applicable section of the Social

Security Act, Title 42 United States

Code Section 422(c)(2)-(3), which is

addressed by the Sixth Circuit in

Otworth v. Finch, supra, which dis-

regarded the generally accepted meaning

of the word "calendar" and under the

legal principle that “the Social Secu-

rity Act" is to be construed liberally

-78-

in favor of the claimant and construed

the phrase “six consecutive calendar

months“ to mean that claimant's wait-

ing period began on the day of dis-

ability and not on the first day of

the month following the month in

which the disability was sustained,

I agree with the equity of the result

reached in the Otworth case in that

it standardized the waiting period

for all claimants. As practical as

establishing a uniform and standard

waiting period for all claimants is,

it nevertheless, totally disregards

the epoenent intent of Congress as

reflected by the House Committee Report

set out hereinabove and the generally

accepted meaning of the word "calendar".

The exclusive right to exercise

legislative power is vested by the

se

Constitution, Article I, Section I

in a Congress of the United States.

I, therefore, respectfully question

the power of the Court to amend a

statute of Congress under the princi-

ple of "liberal construction" not-

withstanding the justness of the result.

An amendment of the statute by Congress

would be the proper procedure and

consistent with the separation of

governmental powers.

Findings

I find that the decision of

the Secretary of Health, Education and

Welfare that the deceased claimant was

not entitled to receive disability

insurance benefits prior to May l,

1980, should be affirmed.

-80-

Recommendations

1, The Plaintiff's Motion

for Summary Judgment should be DENIED.

2. §The Defendant’s Motion

for Summary Judgment should be GRANTED,

and judgment entered for Defendant.

The Clerk shall serve a copy

hereof upon all parties by mailing

such copy by Certified Mail, Return

Receipt Requested, to all attorneys

of record and to the Plaintiff. Any

party may serve and file written

objections to such findings and recom-

mendations within ten (10) days after

being served.

Signed this the 30th day of May,

1980.

ROBERT B, O'CONNOR

United States Magistrate

x

June 7, 1979

ACTION OF APPEALS COUNCIL

ON REQUEST FOR REVIEW

Mr. Chris Sanchez

as et 78221

Dear Mr, Sanchez:

Re: Your Claims for Disability

Insurance Benefits and

Supplemental Security Income

After the request for review

of the hearing decision was received,

a careful study was made of your case,

the applicable law and regulations,

the record before the administrative

law judge, and the contentions made

in support of the request.

Sections 404.947a and 416.1465

of the Social Security Administration

Regulations Nos. 4 and 16 (20 CFR 404.

947a and 416.1465) provide that the

-82-

Appeals Council will review a hearing

decision where: (1) there appears

to be an abuse of discretion by the

administrative law judge; (2) there

is an error of law; (3) the administra-

tive law judge's action, findings,

or conclusions are not supported by

substantial evidence, or (4) there is

a broad policy or procedural issue

which may affect the general public

interest.

The Appeals Council has concluded

that there is no basis under the above

regulations for granting the request

for review. Accordingly, the hearing

decision stands as the final decision

of the Secretary in your case.

In reaching this conclusion,

the Appeals Council carefully considered

@83-

the contentions by your attorney that

the waiting period ended on April 15,

1978, and that you were entitled to

benefits for the remainder of the month.

However, section 223(c)(2)(A) of

the Social Security Act defines "waiting

period" as the earliest period of 5

consecutive calendar months throughout

which an individual has been under

a disability. Since December 1977 was

the first calendar month throughout

which you were under a disability,

the 5-month consecutive period ends

with the close of April 1978. As a

result, May 1978 is the first month

of your entitlement to disability

insurance benefits.

If you desire a court review

of the hearing decision, you may

commence a civil action in the district

@Sh-

court of the United States in the

judicial district in which you reside

within sixty (60) days from the date

of receipt of this letter. It will

be presumed that this letter is received

within five (5) days after the date

shown above unless a reasonable showing

is otherwise made, See sections

205(g) and 1631(c)(3) of the Social

Security Act, as amended (42 U.S.C.

405(g) and 1383(c)(3)) and section

422.210 of Social Security Administra-

tion Regulations No. 22 (20 CFR 422.210).

If a civil action is commenced,

the Bill of Complaint should name the

Secretary of Health, Education and

Welfare as the defendant and should

include the social security number(s)

-85-

shows at the top of this notice.

Sincerely yours,

Kenneth Cooper

Member, Appeals Council

cc;

Mr. Bill McKee

Attorney at Law

San Antonio, Texas 78204

-86-

Supreme Court, US, -

FILED

No. 81-1281 MAR Si 1962

—_—

.

STEVAS

In the Supreme Court of the Hniter States

OcToser TERM, 1981

NELDA SANCHEZ, PETITIONER

Vv.

RICHARD S. SCHWEIKER,

SECRETARY OF HEALTH AND HUMAN SERVICES

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

Rex E. Lee

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Davis v. Schweiker, 641 F.2d 283 ...... ere 5

FHA v. Darlington, Inc., 358 U.S. 84 ......... . 6

Malveaux v. Mathews, 546 F.2d 108 .......... 5

NLRB v. Bell Aerospace Co., 416 U.S. 267 ..... 6

Otworth v. Finch, 435 F. 2d 542 ........... 2,4, 5

Red Lion Broadcasting Co. v. FCC,

DUPE baceds becdkcccnesensendescaues 6

Wisniewski v. United States, 353 U.S. 901 ...... 5

Statutes and regulation:

Social Security Act, 42 U.S.C. 301 et seq.:

Section 222(c)(2), 42 U.S.C. 422(c)(2) ....... 4

Section 222(c)(3), 42 U.S.C. 422(c)(3) ....... 4

Section 223(a)(1)(i), 42 U.S.C. 423(ay(1)i) ... 1

Section 223(c)(2), 42 U.S.C.

DEE stineducdessotbnce sax 1, 2, 4, 5, 6

Section 223(d)(1), 42 U.S.C. 423(d)(1) ...... 2

BP ee A UPCUUEIED ccccccccccceccceces 6

Miscellaneous:

H.R. Rep. No. 92-231, 92d Cong., Ist Sess.

SPP ab tacGhRbdeeéenndwebeveckesoawdess 3,5

H.R. Conf. Rep. No. 92-1605, 92d Cong..,

EY 5 he ded J ouacdbnentadesat 3

S. Rep. No. 92-1230, 92d Cong., 2d Sess.

DE bu bhicd wu med Kebececsenadnedaades 3,6

[1972] U.S. Code Cong. & Ad. News 4989 ....... 3

In the Supreme Court of the United States

OcTOBER TERM, 1981

No. 81-1281

NELDA SANCHEZ, PETITIONER

A

RICHARD S. SCHWEIKER,

SECRETARY OF HEALTH AND HUMAN SERVICES

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

Petitioner seeks review of the court of appeals’ holding

that the five-month waiting period established by 42 U.S.C.

423(c)(2), between the onset of disability and entitlement to

Social Security wage earner disability insurance benefits,

begins on the first day of the first full month of disability,

rather than on the actual date of onset of the disability.’

'Section 223(a)1)(i) of the Social Security Act grants disability insu-

rance benefits to eligible wage earners “for cach month beginning with

the first month after his waiting period.” 42 U.S.C. 423(a)(1X{i). The

Statutory definition of the term “waiting period” provides (Section

223(c(2), 42 U.S.C. 423(c)(2)):

The term “waiting period” means * * * the earliest period of five

consecutive calendar months—(A) throughout which the individ-

ual * * * has been under a disability * * *.

2

1. Petitioner became disabled within the meaning of 42

U.S.C. 423(d)(1) on November 15, 1977 (Pet. App. 29).?

The Secretary, acting through an administrative law judge,

determined that petitioner's waiting period for disability

benefits began on the first day of the first full calendar

month of his disability, December |, 1977, and expired five

months later at the end of April 1978. Under the Secretary’s

interpretation, petitioner first became entitled to benefit

payments on May |, 1978. Petitioner claimed, however,

that his waiting period began on November 15, 1977, with

the onset of his disability, and ended on April 15, 1978, with

disability benefits due immediately thereafter (id. at 30).3

We are informed that the sum in dispute amounts to no

more than $325. Petitioner’s administrative appeal was

unsuccessful.

Petitioner filed this action in the United States District

Court for the Western District of Texas, challenging the

denial of disability benefits for the latter half of April 1978.

Adopting the recommendation of a United States Magis-

trate (Pet. App. 65-81), the district court (id. at 63-64)

upheld the Secretary’s action. In its initial opinion (id. at

50-61), the court of appeals reversed.‘

Chris Sanchez, the wage earner, died while this action was pending

in the district court, and his widow was substituted as plaintiff. For

convenience, we employ the term “petitioner” to refer to both the wage

earner and his widow, as the context requires.

Alternatively, petitioner claimed that his Statutory waiting period

consisted of the months November 1977 through March 1978, and that

he was entitled to benefits for the period commencing April |, 1978 (see

Pet. 5). This contention was apparently abandoned in the court of

appeals, but is renewed in the petition (Pet. 12-13).

‘The court of appeals found insufficient (Pet. App. 54-55) the Secre-

tary’s argument that the definition of the waiting period as “five consec-

utive calendar months” (42 U.S.C. 423(c)(2): emphasis added) denotes

five full calendar months. In support of its decision the court also cited

(Pet. App. 57-59) Otworth v. Finch, 435 F. 2d $42, 543 (6th Cir. 1970),

and invoked a rule of liberal construction said to be applicable to Social

Security Act questions generally (Pet. App. 59-60).

3

The Secretary petitioned the panel for rehearing and

suggested en banc review as well, because of the severe

adverse impact the panel’s initial decision would have had

upon the administration of the Social Security Act and

because of legislative history squarely contrary to the pan-

el’s disposition. The panel granted the government’s peti-

tion for rehearing, vacated its prior opinion, and substi-

tuted a new opinion (Pet. App. 25-49), affirming the

decision of the district court. The court stressed (id. at

32-42) portions of the legislative history of 1972 amend-

ments to the waiting period provision that explicitly recog-

nized the Secretary's view of the onset of the waiting period.

See H.R. Rep. No. 92-231, 92d Cong., Ist Sess. 56(1971); S.

Rep. No. 92-1230, 92d Cong., 2d Sess. 158 (1972).5 The

court also found support for the Secretary’s interpretation

of the statute in the various regulations issued since its

enactment (Pet. App. 42-46 & n.9), and concluded that the

Secretary’s interpretation was a reasonable one, in light of

‘The 1972 amendments reduced the waiting period from six months

to the present five months. The language of the House Report, which

has been commercially reprinted ({1972] U.S. Code Cong. & Ad. News

4989, 5042), but not that of the Senate Report, which is not similarly

available, was placed before the panel in the government's brief filed

prior to the panel's initial decision. Petitioner, however, without citing

any specific language from the Senate Report, which, he explained, was

unavailable to him, suggested in his court of appeals brief (Br. 14) that

the Senate would not have joined in the House’s approval of the

Secretary's view as to when the waiting period begins. This suggestion

rested solely upon an indication in the (commercially reprinted) Con-

ference Report, H.R. Conf. Rep. No. 92-1605, 92d Cong., 2d Sess.

(1972), that the Senate version of the bill would have reduced the

waiting period to four months. The panel, in its original opinion, took

no note of the legislative history. In the Secretary's petition for rehear-

ing, the governing language of both the House and Senate Reports (see

pages 5-6, infra) was highlighted. This language became the centerpiece

of the court of appeals’ opinion on rehearing.

4

the ease of administration resulting from its application (id.

at 46-47).¢ In addition, the court observed (id. at 31-38) that

the disability benefits program was, historically, an out-

growth of the more familiar old-age benefits aspect of the

Social Security Act, under which, Congress was aware,

benefits are paid only for full calendar months during which

the recipient is entitled to benefits.

2.a. Contrary to petitioner's submission (Pet. 7-10), any

inconsistency between the decision below and the Sixth

Circuit’s decision in Otworth v. Finch, 435 F. 2d 542

(1970), does not warrant this Court’s review. In Otworth,

the Sixth Circuit construed 42 U.S.C. 422(c), which governs

the onset of a trial period of work,’ rather than the onset of

the waiting period for disability benefits—governed by 42

U.S.C. 423(c)(2)—the issue in this case. To be sure, as

petitioner observes (Pet. 7-8), pursuant to 42 U.S.C.

422(c)(3) the trial work period “begin{s] with the month in

which [the-individual] becomes entitled to disability insu-

rance benefits,” a formulation which in turn requires inter-

pretation of Section 423(c)(2)—the waiting period defini-

tion. However, as the court below correctly observed (Pet.

App. 48 n.10),8 Otworth was decided prior to the 1972

*The court distinguistied Orworth v. Finch, 435 F. 2d 542, 543 (6th

Cir. 1970), upon which it had previously relied (see note 4, supra),

noting, inter alia, that Otworth had been decided prior to enactment of

the 1972 Social Security Act amendments (Pet. App. 48 n.10; see also

note 8, infra).

’Employment during such a formal trial work period is not held

against the applicant for disability benefits as evidence of employabil-

ity. 42 U.S.C. 422(c)(2).

8Petitioner’s appendix omits a portion of the cited footnote distin-

guishing Otworth. The court explained (656 F. 2d at 971 n.10):

The Sixth Circuit's decision in Otworth vy. Finch, 435 F. 2d 542,

543 (6th Cir. 1970), primarily focused on the construction of

§ 222(c) of the Act, 42 U.S.C. § 422(c) (1964), and, to the extent

that the court may have held that the phrase “ ‘six consecutive

5

amendments to the Social Security Act, the legislative his-

tory of which persuaded the panel to vacate its original

decision. There is little reason to believe that the Sixth

Circuit or any other court would continue to deem Otworth

authoritative in light of the intervening statutory change

and the carefully reasoned decision in this case.?

In 1972, Congress amended 42 U.S.C. 423(c)(2) to reduce

the statutory waiting period from six to “five consecutive

calendar months.” The House Committee report included

an example that reflects Congress’ awareness and approval

of the Secretary’s interpretation as to when the waiting

period begins (H.R. Rep. No. 92-231, supra, at 56; emphasis

added):

Your committee's bill would reduce the waiting period

for disability insurance benefits by one month. Under

present law, entitlement to disability benefits cannot

months’ means one half year,” 435 F. 2d at 543, instead of a period

of time beginning with the first day of a month, its decision was

substantially 2ndermined by the legislative history of the Social

Security Amendments of 1972.

*@tworth rests only upon a general rule of liberal construction of the

Social Security Act that must give way to the expressed contrary views

of Congress.

Contrary to petitioner's assertion (Pet. 17) there is no conflict within

the Fifth Circuit on this issue. Although the issue evidently was not

raised there, Davis v. Schweiker, 641 F. 2d 283 (Sth Cir. 1981), reflects

the court's assumption tha., as the Secretary maintains, the waiting

period begins on the first day of the first full calendar month of disabil-

ity. As the court below observed (Pet. App. 48 n.10), the question of

when the waiting period begins was neither presented nor decided in

Malveaux v. Mathews, 546 F. 2d 108 (Sth Cir. 1977). The opinion in

Malveaux contains only a casual assumption inconsistent with the

decision in this case. In any event, a conflict of authority within the Fifth

Circuit would not warrant this Court's review. Cf. Wisniewski v.

United States, 353 U.S. 901 (1987). We note that petitioner did not seek

en banc review of the court of appeals’ decision adverse to her interest.

6

begin until after a worker has been disabled through-

out a waiting period of 6 consecutive full months. For

example, if a worker becomes disabled on January

10,the waiting period is the 6 full months February

through July; his first month of entitlement to benefits

is August, and the first benefit check is payable early in

September.

The Senate report contained virtually identical language (S.

Rep. No. 92-1230, supra, at 158):

Under present law, entitlement to disability benefits

cannot begin until after a worker has been disabled

throughout a waiting period of 6 consecutive full

months. For example, if a worker becomes disabled on

January 10, the waiting period is the 6 full months

February through July; his first month of entitlement

to benefits is August, and the first benefit check is

payable early in September.

As the court of appeals recognized (Pet. App. 40 n.7), the

language quoted above is entitled to great weight even

though it is not part of the legislative history of Section

223(c)(2) as originally enacted. In enacting the 1972 amend-

ment, Congress revisited and carefully readjusted the dura-

tion of the waiting period. It is incredible to suggest, as does

petitioner (Pet. 15-16), that a disapproving Congress, fully

aware of the Secretary's interpretation governing onset of

the waiting period, simply allowed that view to go uncor-

rected, even though Congress was legislating on the dura-

tion of the waiting period. On the contrary, Congress

plainly ratified the Secretary’s views as to the onset of the

waiting period in 1972. See NLRB v. Bell Aerospace Co.,

416 U.S. 267, 275 (1974); Red Lion Broadcasting Co. v.

FCC, 395 U.S. 367, 381 (1969); FHA v. Darlington, Inc.,

358 U.S. 84, 90 (1958). '

'®As the court of appeals explained (Pet. App. 43-45 n.9), the Secre-

tary’s regulations concerning the statutory waiting period have, since at

7

b. Petitioner's assertion (Pet. 13) that no administrative

burden would result from adoption of petitioner's interpre-

tation of the waiting period is unfounded. As the court of

appeals recognized (Pet. App. 46-47), by setting one date,

the first day of each month, rather than as many as 31

different dates, on which to begin payments, administrative

costs are reduced, and the assets of the Social Security

System are instead channeled to the myriad beneficiaries

nationwide. The Secretary's practice also eliminates partial

monthly payments during the initial month of entitlement.

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

Rex E. Lee

Solicitor General

MARCH 1982

least 1964, consistently treated the statutory waiting period as com-

posed of calendar months, beginning on the first day of the month and

extending through the last day, throughout which the applicant was

continuously disabled. Petitioner's reliance (Pet. 18) upon 20 C.F.R.

404.315(d) (1980) is misplaced. The language cited (“This 5-month

waiting period begins with a month in which you were both insured for

disability and disabled.) simply does not support petitioner's

contention.

DOJ-1982-03