Petitioners Brief — Barnhart v. Walton

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No. 00-1937

In the Supreme Court of the United States

JO ANNE B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY, PETITIONER

CLEVELAND B. WALTON

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE PETITIONER

THEODORE B. OLSON

Solicitor General

Counsel of Record

ROBERT D. MCCALLU®, JR.

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

JEFFREY A. LAMKEN

Assistant to the Solicitor

General

JOHN C. HOYLE

MARK S. DAVIES

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

Title II and Title XVI of the Social Security Act define

“disability” as the inability to “engage in any substantial

gainful activity by reason of any * * * impairment which

can be expected to result in death or which has lasted or can

be expected to last for a continuous period of not less than 12

months.” 42 U.S.C. 423(d)(1)(A); 42 U.S.C. 1882c(a)(3)(A)

(1994 & Supp. V 1999). Under Title II, once a claimant is en-

titled to disability benefits, the claimant may engage in sub-

stantial gainful activity during a “trial work period” of up to

nine months without that work activity being considered in

determining whether his disability has ceased. 42 U.S.C.

422(c). The questions presented are:

1. Whether a claimant is entitled to disability benefits

under Titles II or XVI of the Social Security Act if he has a

physical or mental impairment that has lasted or can be ex-

pected to last for at least 12 months, but his inability to en-

gage in substantial gainful activity by reason of that impair-

ment has not lasted and cannot be expected to last for 12

months.

2. Whether a claimant is entitled to disability insurance

benefits and a “trial work period” under Title II even

though, at the time his disability benefits claim is adjudi-

cated, the evidence shows that his impairment no longer pre-

vents him from performing substantial gainful activity and

that it did not do so for 12 continuous months.

(I)

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statutory provisions involved

Statement

A. Statutory and regulatory framework

1. Title II disability insurance program

2. Title XVI supplemental security income

program

3. Regulatory implementation

a. Disability

b. Trial work

B. Proceedings in this case

Summary of argument

Argument:

I. The Social Security Act does not provide

disability benefits to a claimant whose

impairment has not lasted and cannot be

expected to last 12 months at a disabling

level of severity

A. The Commissioner has reasonably con-

strued the Act to require that a claimant’s

inability to engage in substantial gainful

activity last for 12 months

B. The Commissioner’s interpretation is

supported by the history of Congress’s

amendments to the Act

C. The court of appeals’ construction creates

precisely the short-term disability pro-

gram that Congress chose not to enact .........

(IIT)

O O 0 ä

TABLE OF CONTENTS—Continued: Page

II. Section 422(c)(2) does not provide a “trial

work” period where the claimant returns

to substantial gainful activity within 12

months of the alleged onset of his disability

and before being awarded benefits 42

A. Reversal of the court of appeals’ ruling

concerning the necessary duration of the

inability to engage in substantial gainful

activity requires reversal of its ruling on

the trial work issue 43

B. In any event, the court of appeals erred

in its interpretation of 42 U.S.C. 422(c) and

423(d)(1)(A) 44

Conclusion 50

TABLE OF AUTHORITIES

Cases:

Alexander v. Richardson, 451 F 2d 1185 (10th Cir.

1971), cert. denied, 407 U.S. 911 (1972) 26, 27, 28

Amaz Land Co. v. Quarterman, 181 F.3d 1356

(D.C. Cir. 1999) 31

Batterton v. Francis, 432 U.S. 416 (1977) 22

Bowen v. Yuckert, 482 U.S. 187 (1987) ........... 4, 5-6, 11, 22, 38

Cheney R.R. v. ICC, 902 F.2d 66 (D.C. Cir.),

cert. denied, 498 U.S. 985 (1990) 31

Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 887 (1984) 12, 22, 23, 31, 39

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795

(1999) 5

Commodity Futures Trading Comm'n v. Schor,

478 U.S. 833 (1986) 36

Estep v. Richardson, 459 F 2d 1015 (4th Cir.

1972) 28

— —

Cases Continued: Page

Heckler v. Campbell, 461 U.S. 458 (1983) 22

Leftwich v. Gardner, 377 F.2d 287 (4th Cir.

1967) 4

Lorillard v. Pons, 434 U.S. 575 (1978) 33, 38

Martini v. Federal Nat'l Mortgage Ass n, 178 F.3d

1336 (D.C. Cir. 1999), cert. dismissed, 528 U.S. 1147

(2000) 31

McDonald v. Bowen, 818 F.2d 559 (7th Cir. 1986) .......... 28

Mobile Communications Corp. v. FCC, 77 F.3d 1399

(D.C. Cir.), cert. denied, 519 U.S. 823 (1996) 31

Mourning v. Family Publ n Serv., Inc., 411 US.

356 (1973)

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) ...........

Pauley v. Bethenergy Mines, Inc., 501 U.S. 680

(1991)

Regions Hosp. v. Shalala, 522 U.S. 448 (1998).

Schweiker v. Gray Panthers, 453 U.S. 34 (1981)

Sims v. Apfel, 530 U.S. 103 (2000)

Sullivan v. Everhart, 494 U.S. 83 (1990)

Sullivan v. Zebley, 493 U.S. 521 (1990)

Texas Rural Legal Aid, Inc. v. Legal Servs. Corp.,

940 F. 2d 685 (D.C. Cir. 1991)

Titus v. Sullivan, 4 F.3d 590 (8th Cir. 1993)

Whetsel v. Network Prop. Servs., LLC, 246

F.3d 897 (7th Cir. 2001) 31

Statutes, regulations and rules:

Employment Opportunities for Disabled Americans

—

Act of 1986, Pub. L. No. 99-643, § 4, 100 Stat. 3575 5

Social Security Act, 42 U.S.C. 301 et seq. 1

Tit. II. 42 U.S.C. 401 et seg. passim

42 U.S.C. 405(a) 22, 33

42 U.S.C. 405(b) 6

42 U.S.C. 421(a) 6

VII

68 Stat. 1079

Statutes, regulations and rules—Continued: Page Statutes, regulations and rules—Continued: Page

42 U.S.C. 421(a)(1) 6, 25, 38 68 Stat. 1080 34

42 U.S.C. 421(a)(2) 6, 22, 25, 33 Social Security Amendments of 1956, ch. 836, § 103,

42 U.S.C. 421(b) 6 70 Stat. 815 2, 19, 33

42 U.S.C. 421(c) 6 Social Security Amendments of 1960, Pub. L.

42 U.S.C. 422 17, 44, 48 No. 86-778, 74 Stat. 924 2-3, 4

42 U.S.C. 422(c) 4, 18, 17, 42, 44 Social Security Amendments of 1965, Pub. L.

42 U.S.C. e 48 No. 89-97, § 303(a)(1), 79 Stat. 366 8, 35

42 U.S.C. 422(c)(2) 5, 48, 48 Social Security Amendments of 1967, Pub. L. No.

42 US.C. eU 5, 8, 18, 18, 43, 46 90-248, § 15805), 81 Stat. 868 0

42 U.S.C. 422(c)(4) 43 Social Security Amendments of 1972, Pub. L. No.

42 U.S.C. 422(c)(4)(A) 5 92-603, 86 Stat. 1329 4

42 U.S.C. 422(c)(4\B) 5 § 301, 86 Stat. 1465 5

42 U.S.C. 423 — me Social Security Disability Benefits Reform Act of

42 U.S.C. 423(a) 13 1984, Pub. L. No. 98-460, 98 Stat. 1794 38

42 U.S.C. 423(c) 41 Social Security Independence and Program Improve-

42 U.S.C. 423(c)(2) (1958) 8, 33 ments Act of 1994, Pub. L. No. 103-296, § 106(d),

42 U.S.C 423(c)(3) (1958) 4 108 Stat. 1476 —

42 U.S.C. 428) 2) 13 20 C. F. R.:

42 U.S.C. 423(c2)(A) 4, 40, 41 Pt. 404 .

42 U.S.C. d 15, 24, 27, 35 Section 404.929 (2000) 6

42 U.S.C. CHC passim Section 404.1501(f) (1960) 6

42 U.S.C. 423(d\(2)(A) passim Section 404.1502(f) (1960 Supp.) a

42 U.S.C. 423(d)(4)(A) (1994 & Supp. V 1999 10 Section 404.1502(f) (1961) 6, 24

Tit. XVI, 42 U.S.C. 1381 et seq. passim Section 404.1520 (1982) 38

42 U.S.C. 1382c (1994 & Supp. V 1999) 5 Section 404.1520(b) (2000) 7, 11, 26

42 U.S.C. 1382c(a)(3)(A) (1994 & Supp. v Section 404.1520(f) (2000) 7, 26

1999) 5, 15, 19, 37 Section 404.1520(g) (1961) 24

42 U.S.C. 1382c(aX(3)(B) 5, 15, 19, 37 Section 404.1571 (2000) 7, 26

42 U.S.C. 1388(d)(1) 22 Section 404. 15740 )( 2) (2000) 10

42 U.S.C. 1383b(a) 6, 22 Section 404.1574(b)(2) (2001) 10

Social Security Amendments of 1954, ch. 1206, 68 Stat. Section 404.1574(c) (2001) 27

1052: Section 404.1575(d) (2001) 27

§ 102(b)(2), 68 Stat. 1063 35 Section 404.1592 8

§ 106: Section 404.1592(d)(2) 9, 44

VIII

Rules—Continued: | Page

Pt. 416 1

Section 416. 9200b) 11

Social Security Ruling: N

Rule 78-7 e (1973) (Cum. ed. 1971-1975) 6, 26, 38

Rule 82-52 (1982) (Cum. ed. 1981-1985) ..... 9, 10, 26, 38, 44

Miscellaneous:

SSA, Concepts of Disability and Principles of

Evaluation (Jan. 1966) 25

SSA Disability Insurance Letter No. II-24 (Pt. II

of Disability Insurance State Manual) (Aug. 30, 1965) ... 25

SSA Disability Insurance Letter No. III-6 (Pt. III of

Disability Insurance State Manual) (Nov. 19, 1965) ..... 25, 26

Disability State Insurance Manual (Sept. 9, 19865)

22 Fed. Reg. (1957):

p. 4362

p. 4363

60 Fed. Reg. (1995):

p. 12,166 7

p. 12,168 14

65 Fed. Reg. (2000):

p. 42,772 7, 20

p. 42,774 7, 8, 20, 27, 45, 47

p. 42,780 7, 8, 18, 27, 45, 49

p. 42,787 N 8, 9, 44

Hearings on H.R. 6675 Before the Senate Comm. on

Finance, 89th Cong., Ist Sess., Pt. 1 (1965) 36, 37

H.R. Conf. Rep. No. 964, 101st Cong., 2d Sess.

(1990) 48

H.R. Rep. No. 1698, 88rd Cong., 2d Sess. (1954) ccs. 34

H.R. Rep. No. 1189, 84th Cong., Ist Sess. (1955) .. 2, 15, 19, 29,

33, 39, 41

Miscellaneous—Continued: Page

1960) ——— 3

H.R. Rep. No. 1799, 86th Cong. 2d Sess. (

H.R. Rep. No. 213, 89th Cong. Ist Sess. (19865) ..... *

H.R. Rep. No. 544, 90th Cong. Ist Sess. (1967) ..... my.

H.R. Rep. No. 231, 92d Cong. Ist Sess. (1971) 4, 20, — —

H.R. Rep. No. 618, 98th Cong. Ist Sess. r — ‘

OASI Disability Insurance Letter No. 39 (Pt. 0 ie

Disability Insurance State Manual) (Jan. 22, 1957) .........

Performance Plan for Fiscal Year 2002 ——

* 8

. , 83d „2d Sess. (1954) .

a — — — 89th — ist Sess., Pt. I (1965) *

8. Rep. No. 54d, 90th Cong. 1st Sess. 31 (1967) . wag

S. Rep. No 744, 90th Cong., Ist Sess. (1967) —— „21, 2

8. Rep. No. 408, 96th Cong., Ist Sess. (1979) :

Social Security Program Operations Man (2001) —

The Social Security Amendments of 1954: Hearings

Before the House Comm. on Ways and Means, 1

Cong., 2d Sess. (1954)

In the Supreme Court of the United States

No. 00-1937

Jo ANNE B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY, PETITIONER

CLEVELAND B. WALTON

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-14a) is

reported at 235 F.3d 184. The opinion and judgment of the

district court (Pet. App. 15a-26a, 27a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on De-

cember 18, 2000. A petition for rehearing was denied on

February 27, 2001 (Pet. App. 62a). On May 21, 2001, the

Chief Justice extended the time within which to file a peti-

tion for a writ of certiorari to and including June 27, 2001.

The petition was filed on June 27, 2001, and was granted on

September 25, 2001. The jurisdiction of this Court rests on

28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant provisions of the Social Security Act, 42 U.S.C.

301 et seq., and the relevant regulations, 20 C. F. R. Pts. 404,

416, are set forth in the Appendix to the petition, Pet. App.

63a-104a.

(1)

STATEMENT

Title IT of the Social Security Act, 42 U.S.C. 401 et seq.

provides disability insurance benefits to individuals suffering

from a long-term disability, and Title XVI of the Act, 42

U.S.C. 1381 et seq., provides for the payment of Supplemen-

tal Security Income (SSI) to such individuals if they satisfy

financial need requirements. This case concerns whether the

Commissioner of Social Security, when determining whether

a claimant is entitled to disability benefits, may deny the

claim because the claimant was capable of engaging in—and

had in fact successfully engaged in—substantial gainful ac-

tivity within 12 months of when his impairment first pre-

vented him from performing substantial gainful activity.’

A. Statutory and Regulatory Framework

1. Title II Disability insurance Program. As enacted in

1935, Title II of the Act provided old-age benefits for cov-

ered workers who retired at age 65, but made no provision

for “a lower retirement age for those who are demonstrably

retired” before age 65 “by reason of a permanent and total

disability.” H.R. Rep. No. 1189, 84th Cong., Ist Sess. 3

(1955). Because Congress concluded that covered workers

“forced into retirement * * * prior to age 65” should also

receive benefits, id. at 4, Congress amended the Act in 1956

to establish a system of disability benefits. See Social Secu-

rity Amendments of 1956, ch. 836, § 103, 70 Stat. 815.”

2 The 1956 amendments limited disability benefits to covered em-

ployees who were at least 50 years of age. In 1960 Congress eliminated

* * * * . ,

that restriction. Social Security Amendments of 1960, Pub. L. No. 86-778,

Under the 1956 amendments, the Act defined “disability”

as the inability to engage in “any substantial gainful activity”

by reason of an “impairment which can be expected to result

in death or to be of long-continued and indefinite duration.”

42 U.S.C. 423(c)(2) (1958). In 1965, Congress revised that

definition. ¶ Elxperienee under the disability program” had

“demonstrated [that] in the great majority of cases in which

total disability continues for at least a year the disability is

essentially permanent.” S. Rep. No. 404, 89th Cong., Ist

Sess., Pt. I, at 99 (1965). Accordingly, Congress replaced the

“long-continued and indefinite duration” requirement of the

original definition of “disability” with a 12-month duration

requirement. See Social Security Amendments of 1965, Pub.

L. No. 89-97, § 303(a)(1), 79 Stat. 366. Congress concluded

that the new duration requirement would (like the old one)

prevent the program from paying “disability benefits in

cases of short-term, temporary disability.” S. Rep. No. 404,

supra, at 98. As a result of the 1965 amendments, the Act’s

basic definition now reads as follows:

The term “disability” means—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 period of not less

than 12 months.

42 U.S.C. 423(d)(1)(A). |

The Act further provides that an individual “shall be de-

termined to be under a disability only if his physical or men-

tal impairment or impairments are of such severity that he is

not only unable to do his previous work but cannot, consid-

ering his age, education, and work experience, engage in any

74 Stat. 924. Congress concluded that the “need of younger disabled

workers * * * for disability protection” may be “greater than that of

older workers” because younger workers “are more likely to have families

dependent upon them.” H.R. Rep. No. 1799, 86th Cong., 2d Sess. 12

(1960).

other kind of substantial gainful work which exists in the

national economy.” 42 U.S.C. 423(d)(2)(A) (emphasis added).

Congress added that provision to the Act in 1967. See Social

Security Amendments of 1967, Pub. L. No. 90-248, § 158(b),

81 Stat. 868; Bowen v. Yuckert, 482 U.S. 137, 147-148 (1987).

The addition responded to a Fourth Circuit decision, Left-

_ wich v. Gardner, 377 F. 2d 287 (1967), which had held that a

claimant was under a disability even though he was working

at a level that, according to the Secretary of Health, Educa-

tion and Welfare, demonstrated an ability to engage in sub-

stantial gainful activity. H.R. Rep. No. 544, 90th Cong., Ist

Sess. 29, 31 (1967). The new provision was found necessary

“to reaffirm that an individual who does substantial gainful

work despite an impairment or impairments that otherwise

might be considered disabling is not disabled.” S. Rep. No.

744, 90th Cong., Ist Sess. 49 (1967).

Title II also provides a “waiting period” during which a

claimant, even if under a disability, is not entitled to disabil-

ity insurance benefits. The “waiting period” is “the earliest

period of five consecutive calendar months * * * through-

out which the individual * * * has been under a disability.”

42 U.S.C. 423(c)(2)(A). The 1956 amendments had imposed a

6-month waiting period. See 42 U.S.C. 423(c)(8) (1958).

Congress reduced the waiting period to 5 months in 1972.

See Social Security Amendments of 1972, Pub. L. No. 92-603,

86 Stat. 1329. Reducing the waiting period did not alter the

severity or duration requirements for a finding of disability.

As before, Injo benefit is payable * unless the disabil-

ity is expected to last (or has lasted) at least 12 consecutive

months.” H.R. Rep. No. 231, 92d Cong., Ist Sess. 56 (1971).

Finally, Title II provides a “trial work period” to encour-

age individuals receiving disability benefits to return to

work when possible. See 42 U.S.C. 422(c), as added by the

Social Security Amendments of 1960, Pub. L. No. 86-778, 74

Stat. 924. During the trial work period, a beneficiary may

perform substantial gainful activity for up to nine months

(which need not be consecutive) without losing benefits. The

“period of trial work” begins “with the month in which [the

claimant] becomes entitled to disability insurance benefits.”

42 U.S.C. 422(c)(3). The period ends after the beneficiary

has performed services for nine months, or in the month in

which the disability actually ceases, whichever is earlier. 42

U.S.C. 422(c)(4)(A) and (B). “[AJny services rendered by an

individual during a period of trial work” are “deemed not to

have been rendered by such individual in determining

whether his disability has ceased in a month during such pe-

riod.” 42 U.S.C. 422(c)(2); see also Cleveland v. Policy

Mgmt. Sys. Corp., 526 U.S. 795, 805 (1999).

2. Title XVI Supplemental Security Income Program.

Congress enacted Title XVI of the Act in 1972 to provide

income to financially needy persons who are aged, blind, or

disabled. See Social Security Amendments of 1972, Pub. L.

No. 92-603, § 301, 86 Stat. 1465, 42 U.S.C. 1381 et seg. Unlike

Title II, which is an insurance program, the SSI program is a

welfare program based on financial need. Yuckert, 482 U.S.

at 140. The definitions of disability under Title XVI, 42

U.S.C. 1382c(a)(3)(A) (1994 & Supp. V 1999); 42 U.S.C.

1382c(a)(3)(B), are essentially identical to those under the Ti-

tle II disability program, 42 U.S.C. 423(d)(1)(A) and (2)(A).

The Title XVI SSI program, unlike the Title II disability

insurance program, does not have a waiting period. Instead,

benefits are paid to qualifying disabled individuals beginning

with the first month after the month in which an application

is filed. The Title XVI SSI program also does not provide a

“trial work period.” Rather, it offers a number of “work in-

centives.” See Employment Opportunities for Disabled

Americans Act of 1986, Pub. L. No. 99-643, § 4, 100 Stat. 3575

(amending 42 U.S.C. 1382c to eliminate trial work period).

3. Regulatory Implementation. The Social Security Act

provides that the initial determination of whether a claimant

is disabled may be made by a state agency “acting under the

authority and supervision of” the Commissioner. Yuckert,

482 U.S. at 142; see 42 U.S.C. 421(a), 421(c), 1883b(a).? If the

state agency determines that the claimant is not disabled

the claimant may obtain a formal hearing before an Adminis-

trative Law Judge (ALJ) in the Social Security Administra-

tion (SSA), and may obtain review of an adverse decision by

SSA’s Appeals Council. 42 U.S.C. 405(b); 20 C. F. R. 404.929

(2000); Sims v. Apfel, 530 U.S. 108, 105 (2000). A state

agency’s initial determination of disability must be made “in

accordance with * * * the standards and criteria contained

in regulations or other written guidelines of the Commis-

sioner of Social Security.” 42 U.S.C. 421(a)(1) and (2).

. Disability. The Commissioner, by regulation and in

instructions issued to state agencies pursuant to 42 U.S.C

421(a)(1), has for more than four decades interpreted the Act

as precluding an award of disability benefits unless both the

claimant's impairment and his inability to engage in substan-

tial gainful activity by reason of the impairment have lasted

or can be expected to last for at least 12 consecutive months.

Thus, it is not enough that an individual’s underlying medical

impairment has lasted or can be expected to last at some

discernible level, for 12 months. Instead, the impairment

must last or be expected to last at a sufficient level of sever-

ity to render the individual disabled—i.e., to render him un-

able to engage in substantial gainful activity—for at least 12

months. See, e. g., 20 C.F.R. 404.1501(f) (1960) (duration re-

quirement not met if, within the foreseeable future, “the im-

pairment will * * * be so diminished as no longer to pre-

vent substantial gainful activity.”); 20 C.F.R. 404.1502(f)

(1961) (same); Social Security Ruling (SSR) 73-7c, at 122-123

(Cum. ed. 1971-1975) (“The two components of disability” —

the impairment and the inability to engage in substantial

3 If a State does not assume responsibility >

determination, the Commisioner must make those determinations, 2

gainful activity by reason of the impairment—“must exist at

the same time.”).

Following notice-and-comment rulemaking, the Commis-

sioner last year reaffirmed that “longstanding” construction.

Determining Disability and Blindness; Substantial Gainful

Activity Guides, 65 Fed. Reg. 42,772, 42,774 (2000); see also

Notice of Proposed Rulemaking, 60 Fed. Reg. 12,166 (1995).

The Commissioner explained that “the duration requirement

to establish disability will not be met and a disability claim

will be denied” if, “within 12 months after the onset of an im-

pairment which prevented substantial gainful activity and

before [the agency] hals] issued any notice of determination

or decision finding disability, the impairment no longer pre-

vents substantial gainful activity.” 65 Fed. Reg. at 42,774.

The Commissioner’s regulations similarly declare that, when

the claimant is “working and the work [he is] doing is sub-

stantial gainful activity,” the agency “will find that [the

claimant is] not disabled regardless of [his] medical condition

or [his] age, education, and work experience.” 20 C. F. R.

404.1520 0b) (2000); see also 20 C. F. R. 404.1520(f), 404.1571.“

The determination whether a disability has lasted or can

be expected to last for * * * not less than 12 months” is

made in light of the evidence available at the time the state

agency, ALJ, or Appeals Council adjudicates the claim. See

65 Fed. Reg. at 42,780. As a result, if the claim is adjudi-

cated more than 12 months after the alleged disability’s on-

set, the evidence may show that the impairment in fact al-

4 The fact that a claimant is able to engage in substantial gainful

activity at the time of the disability determination does not preclude the

agency from concluding that the claimant was previously unable to engage

in substantial gainful activity for 12 consecutive months, and that the

claimant is therefore entitled to benefits. For example, if the claimant was

“disabled” for the requisite period of time in the past, but has ceased to be

disabled, the agency may award him benefits for what is called a “closed

period” of disability. See, e.g., Social Security Program Operations Manual,

§ 25510.001 (2001); 65 Fed. Reg. at 42,774.

ready has persisted with sufficient severity to prevent

claimant from being able to perform — —

tivity for the minimum 12-month period. Conversely, the

evidence may prove that the impairment already has not

persisted (and therefore cannot be “expected” to persist) at a

— level of severity for 12 months. See id. at 42,774,

Because the Act permits benefits to be awarded if the

claimant is unable to engage in substantial gainful activity by

reason of an impairment that “can be expected to last” 12

months, 42 U.S.C. 423(d)(1)(A) (emphasis added), disability

claims can be—and often are—adjudicated “without having

to wait 12 months from onset.” 65 Fed. Reg. at 42,774." In

that situation, the statute requirels * * * a prediction

that the worker’s disability will continue for a total of at

least 12 calendar months after onset of the disability” in or-

der for benefits to be awarded. S. Rep. No. 404, supra, at 99.

But if the alleged disability already “has existed for 12 calen-

dar months or more” at the time the claim is adjudicated, “no

such] prognosis [is] required”; the Commissioner may rely

on the claimant’s actual experience during the 12-month

period. Ibid.; see also 65 Fed. Reg. at 42,774.

b. Trial work. The Commissioner recently issued regula-

tions addressing the nine-month trial work period under Ni-

tle II. 20 C. F. R. 404.1592 (as added by 65 Fed. Reg. at

42,787). An individual is not entitled to a trial work period

unless he is “entitled to disability insurance benefits.” 42

U.S.C. 422(e)(3). Accordingly, the Commissioner has con-

cluded that entitlement to a trial work period—like the en-

titlement to benefits is contingent on the claimant’s having

suffered or being expected to suffer from an impairment of

The average processing time for initial disability determinations

= disabilit inati

by the Commissioner is about three and a half months. See Performance

Pian for Fiscal Year 2002, at 77 <ittp:/hwww.ssa.gov/performance/2002/

2002perfplan. pdf>.

sufficient severity to prevent the performance of substantial

gainful activity for at least 12 months. SSR 82-52, at 328

(Cum. ed. 1981-1985). Consequently, if the Commissioner

has not already determined that the claimant is expected to

be unable to work for at least 12 months by reason of the

impairment, and if the individual in fact successfully returns

to work within 12 months of the onset of the alleged

disability and before the Commissioner makes such a

determination, the claimant is not entitled to disability

insurance benefits or, therefore, to a trial work period. See

20 C. F. R. 404. 159 20d) 2) (as added by 65 Fed. Reg. at 42,787)

(“You are not entitled to a trial work period” if “you perform

work demonstrating the ability to engage in substantial

gainful activity * * * before the date of any notice of

determination or decision finding that you are disabled.”).

B. Proceedings in this Case

1. In March 1995, respondent Cleveland Walton applied

for disability insurance benefits under Title II and SSI bene-

fits under Title XVI. Respondent had been terminated from

his job as an in-school suspension teacher on October 31,

1994, and, following several unsuccessful attempts to return

to work, had been diagnosed in March 1995 as having schizo-

phrenia. In May of that year, less than seven months after

his work as a teacher had ended and three months after ap-

plying for disability insurance benefits, respondent began

working part-time as a cashier at a grocery store. His work

hours gradually increased, and by October 1995, he earned

more than $500 a month. Respondent began to work full

time at the grocery store in December 1995, and he worked

there successfully for two more years before being sus-

pended for selling alcohol to a minor. Pet. App. 53a-54a;

Admin. Rec. 440, 444.

In August 1996, the ALJ determined that respondent was

disabled for the period between October 31, 1994, when he

was discharged by the school district, and December 1995,

—

when he began to work full-time at the grocery store. Pet.

App. 52a-6la. SSA’s Appeals Council remanded the case to

the ALJ to determine whether respondent had engaged in

substantial gainful activity before December 1995 and within

one year of the onset of his alleged disability. Under SSR

82-52, the Appeals Council noted, such activity, if it occurs

before the lapse of the 12-month period following onset of

the impairment and before the claimant has been found dis-

abled, requires a denial of benefits. Id. at 47a-51a.

On remand, the ALJ denied respondent’s claim for bene-

fits. Pet. App. 39a-46a. Like the Appeals Council, the ALJ

noted that the Commissioner’s construction of the Act, set

forth in SSR 82-52, provides that a claim must be denied

when a claimant successfully returns to work (and thereby

demonstrates the ability to perform substantial gainful ac-

tivity) within 12 months of the alleged disability’s onset. See

Pet. App. 41a (The “duration requirement provides that [the

claimant} must be prevented from performing substantial

gainful activity [by reason of the impairment] for a 12-month

period even if his impairment lasted or was expected to last

for 12 months.”). Reviewing the evidence and applying the

regulatory criteria for determining whether work consti-

tutes substantial gainful activity, the ALJ concluded that

respondent in fact had “returned to substantial gainful ac-

tivity in October 1995,” because his earnings for that month

were in excess of $500. Id. at 41a-44a.° The ALJ therefore

6 2 2

Congress directed the Commissioner to “4

Pa a ag a Pw fy bn ay

rived from services demonstrate an individual's ability to engage in

substantial gainful activity.” 42 U.S.C. 423(d)(4)(A) (1994 & Supp. V 1999).

An applicant “whose services or earnings meet such criteria, shall * * *

be found not to be disabled.” Ibid. Pursuant to that authority, the Com-

missioner issued regulations providing that work was rebuttably pre-

sumed to be substantial gainful activity if the claimant earned more than

$500 in a month. 20 CF. R. 404.1574(b)(2)(2000). The Commissioner, after

this case was decided, increased that amount to $700. 20 C. F. R.

404.1574(b (22001).

concluded that respondent could “not be found to be under a

disability because his impairment had not “prevented

[him] from working for any continuous period of 12 months.”

Id. at 44a.

The ALJ also determined that respondent was not enti-

tled to atrial work period under Title II. Because respon-

dent “is not under a disability, the ALJ reasoned, “he is

not entitled to * * * atrial work period under the Regula-

tions.” Pet. App. 44a. The Appeals Council upheld the

ALJ’s decision. Id. at 36a-38a.

2. Respondent sought judicial review in the District

Court for the Eastern District of Virginia. The magistrate

judge recommended that summary judgment be granted in

favor of the Commissioner, Pet. App. 30a-35a, and the dis-

trict court accepted that recommendation, id. at 15a-26a.

The magistrate and district court concluded that a claimant’s

disability—his inability to engage in substantial gainful

activity by reason of an impairment—and not just his im-

pairment must last at least 12 months. In this case, they

observed, respondent had engaged in substantial gainful

activity within 12 months of the date of onset of his im-

pairment. Accordingly, the magistrate and district court

held that respondent’s claim failed at the first step of the

five-step sequential evaluation process used for the ad-

judication of disability claims, see Yuckert, 482 U.S. at 140;

20 C.F.R. 404.1520(b), 416.920(b), because respondent had

not been prevented from engaging in substantial gainful

activity for the requisite 12-month period. See Pet. App.

23a-24a, 33a-34a.

The magistrate and district court also rejected respon-

dent’s request for a trial work period. They concluded that,

because respondent was not entitled to disability benefits, he

was not entitled to a trial work period either. See Pet. App.

17a-18a n.2.

Finally, the magistrate and district court rejected respon-

dent’s claim that “the ALJ erred in not finding him disabled

based on the fact that his impairment was ‘expected’ to last

for a continuous period of not less than 12 months.” Pet.

App. 34a; see id. at 24a. They concluded that the ALJ “did

not have to consider prospectively the expectations of the

duration of his impairment because the ALJ had the benefit

of knowing the actual amounts [respondent] did earn during

the period.” Id. at 34a; see id. at 24a. Those earnings “were

consistently in excess of $500 per month beginning in Octo-

ber, 1995,” and as high as $1,140 in December of that year.

Id. at 34a; see id. at 24a-25a.

3. The court of appeals reversed. Pet. App. la-l4a. It

agreed with the ALJ and the district court that respondent

had engaged in substantial work activity in October 1995,

less than 12 months after the alleged disability’s onset. Id.

at 2a-3a n. I, 5a. But it rejected the Commissioner’s and the

district court’s conclusion that respondent was ineligible for

benefits as a result. Id. at 6a.

a. The court of appeals first examined the Commis-

sioner’s interpretation of the Act, which requires that the

claimant’s impairment have lasted, or be expected to last, for

at least 12 continuous months at a level of severity sufficient

to preclude substantial gainful activity. Applying the two-

step test of Chevron U.S.A. Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 837 (1984), the court rejected

the Commissioner’s approach at Chevron step one because,

in the court’s view, it was contrary to the “clear and unambi-

guous” language of the statute. Pet. App. 6a. The court rea-

soned that the phrase “which has lasted or can be expected

to last for a continuous period of not less than 12 months” in

42 U.S.C. 423(d)(1)(A) modifies “impairment,” not “inability

to engage in SGA.” Id. at 7a-8a; see id. at lla. It follows, the

court believed, that “a claimant whose impairment was ‘ex-

pected to result in death,’ or which ‘lasted’ or ‘was expected

to last’ for a continuous period of not less than twelve

months may be disabled, even if the inability to engage in

substantial gainful activity does not cause death or actually

persist for twelve months.” Id. at 8a. As the court read the

Act, no “duration requirement for the inability to engage in

substantial gainful activity * exists. Id. at 7a.

Based on that construction of the Act, the court of appeals

concluded that respondent was entitled to disability insur-

ance benefits because his underlying impairments—his

_ schizophrenia and depression—were expected to last and did

last in some discernible form for more than 12 months, even

though they did not remain so severe as to prevent him from

engaging in substantial gainful activity for 12 months. Pet.

App. 9a. The court pointed out that respondent did not en-

gage in a successful work attempt until “May 1995, two

months after the five-month waiting period” in 42 U.S.C.

423(a) and (c)(2) had lapsed, and respondent did not engage

in substantial gainful activity “until October 1995, well after

the five-month waiting period had lapsed.” Pet. App. 9a.

Under those circumstances, the court concluded, respondent

had met the statutory requirements for entitlement to an

award of Title II disability insurance benefits. Ibid. The

court did not separately address respondent’s claim for SSI

benefits under Title XVI of the Social Security Act, which

has no waiting period.

b. The court of appeals next held that respondent was

entitled to a trial work period under 42 U.S.C. 422(c). Pet.

App. 9a-10a. In the court’s view, respondent’s entitlement to

a trial work period was “conclusively settled” by the court’s

earlier conclusion that respondent was entitled to disability

benefits as of April 1995, when the five-month waiting period

under Title II expired. Id. at 9a. The court noted that the

period of trial work begins once the claimant becomes enti-

tled to disability benefits. Ibid. (citing 42 U.S.C. 422(c)(3),

which provides that the “period of trial work” begins “with

the month in which [the claimant] becomes entitled to dis-

ability insurance benefits.”). Having found that respondent

was entitled to benefits beginning in April 1995, the court

found that respondent qualified for a nine-month trial work

period as of that date as well. Jbid. Because of that trial

work period, the court held that respondent’s work in Octo-

ber 1995, which was at a level that constituted substantial

gainful activity, could not be used to support a determination

that he was not disabled. [bid.

e. Finally, the court rejected the Commissioner’s con-

_ struction of the Act as unreasonable under the second step of

Chevron. Pet. App. 10a-18a. In so doing, the court for the

most part repeated its textual analysis of the Act. Id. at 10a-

lla. In addition, the court rejected as unreasonable the

Commissioner’s position that the trial work period cannot

begin until after either (a) benefits are granted on the expec-

tation that the individual will not be able to work for 12

months, or (b) the individual in fact was unable to work for

12 consecutive months. The court acknowledged that the

Commissioner had interpreted the phrase “can be expected

to last” in the definition of disability as intended to enable

the Commissioner to “ ‘adjudicate disability claims without

having to wait 12 months from the alleged onset of disability,

rather than to permit claims to be allowed in the face of evi-

dence that the claimant’s impairment did not prevent sub-

stantial gainful activity for 12 continuous months. Id. at

12a (quoting 60 Fed Reg. at 12,168). The court rejected that

interpretation because the Act does not explicitly mention

adjudication as a prerequisite to a finding of disability; be-

cause no other provision of the Act “differentiates between

claims adjudicated within twelve months, and claims adjudi-

cated after twelve months”; and because “under the Com-

missioner’s interpretation, a finding of disability, or entitle-

ment to benefits or a trial work period, would be determined,

in part, by when the Commissioner adjudicated a claim.” Id.

at 13a.

SUMMARY OF ARGUMENT

I. A. Congress created Title II's disability insurance

program in 1956 to fill a perceived gap in the social security

retirement system, which previously limited retirement

benefits to workers who retired at age 65 or older. In par-

ticular, Congress sought to extend benefits to “workers who

are forced into premature retirement” before age 65 by “rea-

son of a permanent and total disability.” H.R. Rep. No. 1189,

84th Cong., Ist Sess. 3 (1955). Congress initially ensured

that benefits would be limited to such workers by requiring

that the impairment that prevents substantial gainful activ-

ity be of long-continued and indefinite duration. Although

Congress changed the duration requirement to “not less

than 12 months” in 1965, it did so because experience had

shown that, “in the great majority of cases in which total

disability continues for at least a year the disability is essen-

tially permanent.” S. Rep. No. 404, 89th Cong., Ist Sess., Pt.

I, at 99 (1965). The Act thus defines “disability” as the “in-

ability to gage in any substantial gainful activity by reason

of any medically determinable physical or mental impair-

ment which can be expected to result in death or which has

lasted or can be expected to las: for a continuous period of

not less than 12 months.” 42 U.S.C. 423(d)(1)(A); 42 U.S.C.

1382c(a)(3)(A) (1994 & Supp. V 1999). An individual, the Act

also declares, “shall be determined to be under a disability

only if his physical or mental impairment or impairments are

of such severity that he” can neither “do his previous work”

nor “engage in any other kind of substantial gainful work

which exists in the national economy.” 42 U.S.C.

423(d)(2).A) (emphasis added); 42 U.S.C. 1382¢(a)(3)(B) (em-

phasis added).

The Commissioner of Social Security has, for the more

than four decades of the disability program’s existence, con-

sistently interpreted Section 423(d) as requiring both that

the claimant’s physical or mental impairment have lasted or

be expected to last at least 12 months, and that the impair-

ment have lasted or be expected to last that long at a level of

severity sufficient to prevent substantial gainful activity. In

this case, the court of appeals rejected that construction and

held that no “duration requirement for the inability to en-

gage in substantial gainful activity * * * exists.” Pet. App.

7a. The Act’s text, the court held, requires only that the im-

pairment last 12 months, and therefore precludes any re-

quirement that the disability (i e., the inability to engage in

substantial gainful activity on account of that impairment)

last that long as well. Jd. at 8a. The court of appeals’ deci-

sion rests on faulty logic and a misunderstanding of the

judicial role in construing a statute entrusted to an executive

agency for administration.

The court of appeals reasoned that, because 42 U.S.C.

423(d)(1)(A) requires the impairment to have lasted or be

expected to last 12 months, it cannot be construed as re-

quiring the impairment to persist at a disabling level of se-

verity during that period. But the court of appeals ignored

the fact that Section 423(d)(1)(A) requires not merely an im-

pairment, but ulso an inability to engage in substantial gain-

ful activity “by reason of” that impairment; the impairment

and the resulting inability to work are thus inextricably

linked. More fundamentally, the fact that Section

423(d)(1)(A) requires the impairment to last for a particular

amount of time simply does not resolve whether the impair-

ment must persist at a specified level of severity during that

time. Instead, it shows that Congress has not directly re-

solved the issue of severity during the 12-month duration

through Section 423(d)(1)(A) itself, and instead has left that

question for the agency to resolve through the exercise of its

expertise. Finally, the court of appeals’ analysis ignores the

text of 42 U.S.C. 423(d)(2)(A), which requires that the im-

pairment be so severe that it precludes all substantial gainful

activity. The court nowhere explained why that severity

requirement does not apply to the impairment for the entire

12-month duration requirement. Indeed, the court of ap-

peals’ construction is difficult to reconcile with the Act’s

structure and evident purpose of providing disability bene-

fits to those who cannot work, not impairment compensation

to individuals who can work.

B. As Congress has revised the Act over the years, it has

repeatedly concurred in the Commissioner’s construction.

When Congress enacted the program in 1956, the House and

Senate Reports explained that the Act provided benefits if

the disability—statutorily defined as the “inability to engage

in any substantial gainful activity by reason of any medically

determinable physical or mental impairment,” 42 U.S.C.

423(d)(1)(A)—has lasted or can be expected to last the speci-

fied duration. After the Commissioner so construed the

statute beginning with the 1957 regulations, Congress re-

peatedly amended the statute in closely related respects.

Each time it not only carefully preserved, but also specifi-

cally reaffirmed and ratified, the Commissioner’s construc-

tion. The Commissioner’s construction thus is not merely

reasonable or permissible; it is the construction that Con-

gress intended.

C. The court of appeals’ decision cannot be reconciled

with Congress’s deliberate decision not to provide benefits in

cases of short-term, temporary disability. Under the court

of appeals’ construction of the Act, no “duration requirement

for the inability to engage in substantial gainful activity * * *

exists.” Pet. App. 7a. It thus requires the Commissioner to

process claims for and award Title II insurance benefits to

individuals whose impairments prevent substantial gainful

activity for as little as five months, and to process claims for

and pay Title XVI SSI disability benefits to claimants who

suffer an inability to engage in substantial gainful activity of

virtually any duration, however brief. That result is incon-

sistent with Congress’s intent, and its specific decision to re-

ject a reduced disability duration period of six months that,

in Congress’s view, would have awarded benefits in cases of

short-term, temporary disabilities.

II. A. The court of appeals also misconstrued 42 U.S.C.

422(c), which governs trial work periods. Under Section 422,

the trial work period begins with the month in which the

claimant “becomes entitled to disability insurance benefits.”

42 U.S.C. 422(c)(3). In this case, respondent never became

entitled to benefits because, by the time his claim was adju-

dicated, respondent had returned to substantial gainful ac-

tivity within 12 months of his disability’s onset; in other

words, his disability did not last (and therefore could not be

expected to last) the required 12-month period. Because re-

spondent never became “entitled” to benefits, the trial work

period never began to run.

B. The Commissioner’s trial work regulations are, in any

event, entirely consistent with and reasonably implement

the text of the Social Security Act. They precisely reflect,

moreover, how Congress expected disability determinations

would be made.

The court of appeals erred in invalidating the Commis-

sioner’s trial work regulations based on its concern that enti-

tlement to benefits (and thus to a trial work period) might,

under them, occasionally depend on when the claim is adju-

dicated. Although some claims may be affected by when

they are determined, that is a necessary (if regrettable) con-

sequence of permitting the agency “to adjudicate disability

claims and award benefits without having to wait 12 months

from onset” and the necessity, when so doing, of relying on

potentially faulty predictions about the disability’s duration.

65 Fed. Reg. at 42,780. Besides, decisions in other legal con-

texts, particularly ones requiring predictive judgments, are

likewise influenced by when the adjudication takes place.

Juries, for example, may consider an individual’s post-claim,

pre-trial behavior—such as successful rehabilitation—when

assessing the extent or duration of a claimed injury, even

though that evidence might have been unavailable if trial

had occurred earlier. Yet no one suggests that courts must

fashion an exclusionary rule for such evidence to avoid that

result. Similarly, nothing compels the Commissioner to ig-

nore evidence showing the precise duration of a claimant’s

disabling impairment simply because it would have been un-

available if the claim had been adjudicated earlier.

ARGUMENT

I. THE SOCIAL SECURITY ACT DOES NOT PROVIDE

DISABILITY BENEFITS TO A CLAIMANT WHOSE

- IMPAIRMENT HAS NOT LASTED AND CANNOT BE

EXPECTED TO LAST 12 MONTHS AT A DIS-

ABLING LEVEL OF SEVERITY .

As enacted in 1935, the Social Security Act provided re-

tirement benefits to covered workers who retired at age 65,

but did not provide benefits to workers who were “demon-

strably retired” before that age “by reason of a permanent

and total disability.” See H.R. Rep. No. 1189, 84th Cong., 1st

Sess. 3 (1955). To close that “gap” in the Act’s coverage,

ibid., Congress in 1956 established a program of disability

insurance under Title II of the Act. Social Security Amend-

ments of 1956, ch. 836, § 103, 70 Stat. 815. The Act now de-

fines “disability” as the “inability to engage in any substan-

tial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to re-

sult in death or which has lasted or can be expected to last

for a continuous period of not less than 12 months.” 42

U.S.C. 423(d)(1)(A). The Act further provides that an indi-

vidual “shall be determined to be under a disability only if

his physical or mental impairment or impairments are of

such severity” that he can neither “do his previous wor “4

nor “engage in any other kind of substantial gainful work

which exists in the national economy.” 42 U.S.C.

423(d)(2)(A) (emphasis added). Congress used those same

definitions in 1972 when it established the Title XVI Sup-

plemental Security Income program, which provides pay-

ments to disabled individuals who are financially needy. See

42 U.S.C. 1382c(a)(3)(A) (1994 & Supp. V 1999); 42 U.S.C.

1382e(a)(3)(B).

The Commissioner of Social Security has always inter-

preted and administered the Act to require both that the

claimant’s physical or mental impairment have lasted or be

expected to last at least 12 months, and that the impairment

have lasted or be expected to last that long at a level of se-

verity sufficient to prevent substantial gainful activity. See

pp. 24-27, infra. As the Commissioner recently explained

following a notice-and-comment rulemaking, the “duration

requirement to establish disability will not be met and a dis-

ability claim will be denied” if, “within 12 months after the

onset of an impairment which prevented substantial gainful

activity and before [the agency] ha[s] issued any notice of

determination or decision finding disability, the impairment

no longer prevents substantial gainful activity.” Determin-

ing Disability and Blindness; Substantial Gainful Activity

Guides, 65 Fed. Reg. 42,772, 42,774 (2000).

In revisiting and revising the disability provisions of the

Social Security Act over the years, Congress too has consis-

tently acted on the understanding that the disability—the

“inability to engage in any substantial gainful activity by

reason of any medically determinable physical or mental im-

pairment,” 42 U.S.C. 423(d)(1)(A)—must have lasted or be

expected to last at least 12-months. See, e.g., S. Rep. No.

404, 89th Cong., Ist Sess., Pt. I, at 98-99 (1965) (Act pro-

vide[s] for the payment of disability benefits for an insured

worker who has been or can be expected to be totally dis-

abled throughout a continuous period of 12 calendar

months” (emphasis added)); H.R. Rep. No. 231, 92d Cong.,

Ist Sess. 56 (1971) (“No benefit is payable * * unless the

disability is expected to last (or has lasted) at least 12 con-

secutive months.” (emphasis added)). Indeed, when Con-

gress amended the definition of disability in 1965 to replace

the “long-continued and indefinite duration” requirement

with a 12-month duration requirement, it chose 12 months

because, “in the great majority of cases in which total dis-

ability continues for at least a year the disability is essen-

tially permanent.” S. Rep. No. 404, supra, at 99 (emphasis

added). And when Congress amended the definition of dis-

ability again in 1967 by adding the limitations in Section

423(d)(2.A), which expressly condition a finding of disability

on the claimant’s inability to perform substantial gainful ac-

tivity, it “reaffirm[ed] that” a claimant “who does substantial

gainful work despite an impairment or impairments * * *

is not disabled for purposes of establishing a period of dis-

ability or for social security benefits based on disability dur-

ing any period in which such work is performed.” S. Rep.

No. 744, 90th Cong., Ist Sess. 49 (1967).

The court of appeals in this case nevertheless held that no

“duration requirement for the inability to engage in substan-

tial gainful activity * * * exists.” Pet. App. 7a. Rejecting

repeated expressions oi congressional intent and the Com-

missioner’s longstanding construction of the Act, the court of

appeals read the text of 42 U.S.C. 423(d)(1)(A) to require

only that the claimant’s impairment last at least 12 months,

and, in addition, to preclude the Commissioner from con-

struing the Act to require that the claimant’s disability—.e.,

his “inability to engage in any substantial gainful activity by

reason of” that impairment—last at least 12 months as well.

Id. at 8a. The court of appeals’ construction of the statute,

however, ignores the express statutory link (“by reason of”)

between the underlying impairment and the resulting

inability to engage in substantial gainful activity. It also

rests on faulty logic—that because the Act requires the

impairment to last 12 months, it cannot also be construed to

require the impairment to persist at a disabling level of se-

verity for that 12-month period. The court’s analysis, more-

over, erroneously ignores the additional limitation on the

definition of disability in Section 423(d)(2)(A), contravenes

Congress’s repeatedly expressed intent, and is at war with

the Act’s purpose of establishing a program for individuals

who have long-term disabilities. Indeed, Congress has

consistently rejected proposals that would extend Titles II

and XVI's coverage from long-term disabilities to short-term

disabilities. Yet, the court of appeals’ construction effects

precisely such an extension, requiring the award of SSI

benefits, for example, if an impairment causes an inability to

work of virtually any duration.

A. The Commissioner Has Reasonably Construed

To Require That A Claimant's Inability Te Engage In

Substantial Gainful Activity Last For 12 Months

Where an Act of Congress speaks clearly “to the precise

question at issue,” the court “must give effect to the unam-

biguously expressed intent of Congress.” Chevron U.S.A.

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 843

(1984). If “the statute is silent or ambiguous with respect to

the specific issue,” however, the court must sustain an

agency's interpretation if it is “based on a permissible con-

struction of the statute.” Id. at 843; see also Regions Hosp.

v. Shalala, 522 U.S. 448, 457 (1998) (“If the agency’s reading

fills a gap or defines a term in a reasonable way in light of

the Legislature’s design, we give that reading controlling

weight”). That deference is particularly appropriate where

as here, Congress has accorded the Commissioner power to

issue legislative rules, 42 U.S.C. 405(a) (rulemaking author-

ity); see Sullivan v. Zebley, 493 U.S. 521, 528 (1990); Yuck-

ert, 482 U.S. at 145; Heckler v. Campbell, 461 U.S. 458, 466

(1983), made applicable to Title XVI by 42 U.S.C. 1383(d)(1);

and to issue written guidelines for state agencies to follow in

adjudicating claims, 42 U.S.C. 421(a)(2) (requiring States to

make disability determinations “in accordance with * * *

the standards and criteria contained in regulations or other

written guidelines of the Commissioner of Social Security”),

made applicable to Title XVI by 42 U.S.C. 1383b(a). In such

circumstances, the standards adopted by the Commissioner

have “legislative effect” and are entitled “to more than mere

deference or weight.” Batterton v. Francis, 482 U.S. 416

425, 426 (1977) (addressing statute requiring States to com-

ply “with standards prescribed by the Secretary”). Rather,

the Commissioner’s construction must be “given controlling

weight” unless it is “arbitrary, capricious, or manifestly con-

trary to the statute.” Zebley, 493 U.S. at 528 (quoting Chev-

ron, 467 U.S. at 843-844). Moreover, as this Court has recog-

nized, the “Social Security Act is among the most intricate

ever drafted by Congress. * * * Perhaps appreciating the

complexity of what it had wrought, Congress conferred on

the [Commissioner] exceptionally broad authority to pre-

scribe standards for applying certain sections of the Act.”

Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981). Under

these principles, the Commissioner’s interpretation of the

Act should be sustained.

1. The text of the Social Security Act does not directly

resolve the precise question before the Court. The Act de-

fines disability in part as the “inability to engage in any sub-

stantial gainful activity by reason of any medically deter-

minable physical or mental impairment which can be ex-

pected to result in death or which has lasted or can be ex-

pected to last for a continuous. period of not less than 12

months.” 42 U.S.C. 423(d)(1)(A). By its terms, Section

423(d)(1)(A) requires that the impairment have lasted or be

expected to last 12 months (or result in death). But Section

423(d)(1)(A) does not speak directly to whether the impair-

ment must persist during those 12 months at any particular

level of severity—in particular, whether it must be suffi-

ciently severe to prevent substantial gainful activity. Nor

does it specify how long the disability—the inability to work

“by reason of” the impairment—must last. On those issues,

Section 423(d)(1)(A) is ambiguous.

In 1967, Congress added Section 423(d\(2)(A) to supple-

ment and clarify the basic definition of “disability.” Section

4 (%) provides that, “[flor purposes of paragraph

Idi Ar-the basic definition of disability—a claimant

“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 experi-

ence, engage in any other kind of substantial gainful work

which exists in the national economy.” 42 U.S.C. 423(d)(2)

(A) (emphasis added). By amending the Act to add Section

423(d)(2)(A), Congress made it clear that, for purposes of

_ disability determinations, it is not sufficient that there merely

be some sort of discernible impairment. Instead, there must

be an impairment that is sufficiently severe to preclude any

2. The Commissioner has consistently construed Section

423(d) to mean that a claimant is not entitled to disability

benefits unless, during ine 12 months for which the impair-

ment has persisted or can be expected to persist, the im-

pairment is so severe that it precludes substantial gainful

activity. After the 1956 amendments, in which Congress

first afforded benefits for insured workers who were dis-

abled by impairments of “long-continued and indefinite dura-

tion,” the Commissioner immediately interpreted the Act as

requiring the impairment to persist at a disabling level of

severity for the specified duration (“long-continued and in-

definite”). The Commissioner’s regulations, issued in 1957,

see 22 Fed. Reg. 4362, 4363, provided that an impairment is

of long-continued and indefinite duration under the Act only

if “it cannot reasonably be anticipated that the impairment

will, in the foreseeable future, be so diminished as no longer

to prevent substantial gainful activity.” 20 C.F.R. 404.1502(f)

(1960 Supp.) (emphasis added); 20 C.F.R. 404.1502(f) (1961)

(same); see also 20 C.F.R. 404.1520(g) (1961) (“An individual

will be deemed not under a disability if, with reasonable

effort and safety to himself, the impairment can be dimin-

ished to the extent that the individual will not be prevented

by the impairment from engaging in any substantial gainful

activity.”). The Commissioner’s written instructions to the

States, which must make disability determinations “in

accordance with * * * the standards and criteria contained

in” the Commissioner’s “written guidelines,” 42 U.S.C.

421(a)(1) and (2), also made that clear. See OASI Disability

Insurance Letter No. 39 (Pt. V of Disability Insurance State

Manual), at 1 (Jan. 22, 1957) (“long-continued and indefinite

duration” requirement refers to the “expected duration of

the medical impairment” at a “level of severity sufficient to

preelude SGA”).

After Congress changed the duration requirement from

“long-continued and indefinite” to “not less than 12 months”

in 1965, the Commissioner continued to require that the im-

pairment persist at a disabling level of severity for the speci-

fied period. The impairment, the Commissioner explained,

must be “expected to last at a disabling level for 12 months

or more from onset.” SSA Disability Insurance Letter No.

III-s (Pt. III of Disability Insurance State Manual), at 4

(Nov. 19, 1965) (emphasis added); Disability Insurance State

Manual, § 316 (Sept. 9, 1965) (“Duration of impairment refers

to that period of time during which an individual is continu-

ously unable to engage in substantial gainful activity be-

cause of a medically determinable physical or mental im-

pairment.”) (emphasis added).’

7 See also Disability State Insurance Manual, § 316.1-A (Sept. 9, 1965)

(“Where the claimant is engaging in SGA, or is held to be able to engage in

SGA * * *, a finding of disability may be made if the impairment pre-

vented the claimant from engaging in SGA for at least 12 consecutive

months.”); id. at § 316.1-C (where adjudication occurs “before the im-

pairment has lasted 12 months,” the decisionmaker must examine the

evidence to determine “whether the impairment will continue to prevent

the individual from engaging in SGA for the additional number of months

needed to make up the required 12 months duration”); SSA, Concepts of

Disability and Principles of Evaluation, at 3 (Jan. 1966) (Because “the

disabling impairment must have lasted or be expected to last 12 con-

tinuous months from onset,” an “impairment which became incapacitating

on April 12 must have continued or be expected to continue at a disabling

level into April 11 of the following year.”); SSA Disability Insurance

Letter No. II-24 (Pt. II of Disability Insurance State Manual), at 4 (Aug.

30, 1965) (“In all cases, use existing guides for determining whether the

claimant is able to engage in any SGA since the 1965 Amendments made

The Commissioner has never wavered from that construc-

tion. See, e. g., Social Security Ruling (SSR) 73-7c, at 122-128

(Cum. ed. 1971-1975) (adopting construction, set forth in

Alexander v. Richardson, 451 F.2d 1185, 1186 (10th Cir.

1971), cert. denied, 407 U.S. 911 (1972), under which both

“components of disability the impairment and the result-

: ing inability to work must exist at the same time to satisfy

the twelve month duration requirement”); SSR 82-52, at 328

(Cum. ed. 1981-1985) (“In considering ‘duration,’ it is the in-

ability to engage in SGA because of the impairment that

must last the required 12-month period.”); 20 C.F.R.

404.1520(b) (2000) (when the claimant is “working and the

work [he is] doing is substantial gainful activity,” the agency

“will find that [the claimant is] not disabled regardless of

(his] medical condition or [his] age, education, and work

experience.”); 20 C.F.R. 404.1520(f) (2000) (“Your impair-

ment(s) must prevent you from doing any other work.“); 20

C. F. R. 404.1571 (2000) (“If you are able to engage in sub-

stantial gainful activity, we will find that you are not dis-

abled.”). Thus, as the Commissioner explained in promul-

gating the most recent regulations, it has been the agency’s

“longstanding” position that “the duration requirement to

establish disability will not be met” if the “impairment no

the 12-

longer prevents substantial gainful activity” befare

period has lapsed. 65 Fed. Reg. at 42,774.

cae ae Comedetener's constrestion te fully eupperted DY

the Act’s text and structure. Section 428(d\(1XA) requires

not only that there be an underlying “impairment —

the specified duration, but also an inability to engage in —

stantial gainful activity by reason of” that impairment.

.S. C. 428d A). The impairment and the resulting in-

ability to work thus are inextricably linked. Furthermore,

Section 428(d)(2)(A) expressly provides that a claimant may

be found disabled “only if” his impairment is of “such sever-

ity” as to render him unable to perform any substantia! gain-

ful work that exists in the national economy. It therefore

entirely reasonable for the Commissioner to construe .

Act to require that the impairment that must last at least

months under Section 423(d)(1)(A) be one that is of “such

severity” as to satisfy Section 423(d)(2)(A) during those 12

months.

Indeed, prior to the Fourth Circuit’s decision in this case,

the courts of a peals had repeatedly upheld the Commis-

sioner’s — of Section 423(d) to require that both

the underlying impairment and the resulting inability to en-

gage in substantial gainful activity must have lasted or be

expected to last for the statutory 12-month period. For ex-

ample, in Alexander, 451 F.2d at 1186, the Tenth Circuit re-

jected the reasoning that was adopted by the Fourth Circuit

in this case, and affirmed the Commissioner’s decision deny-

ing benefits because the “disability extended for a period of

less than twelve months, although there was an impairment

which lasted for more than >

‘ae one year.” Jd. at 1186. The court

To recover disability benefits under the Act an applicant

must be unable to engage in any substantial gainful ac-

tivity. Disability is established by showing a medically

determinable mental or physical impairment which pre-

vents [the claimant from] engaging in any gainful activ-

ity. Inability to engage in any gainful activity and the

impairment which causes it cannot be separated. The

two components of disability must exist at the same time

to satisfy the twelve month duration requirement.

Ibid. Other courts of appeals have agreed. See Titus v. Sul-

livan, 4 F.3d 590, 594 (8th Cir. 1993) (“We agree with the

district court that the interpretation of ‘duration of impair-

ment’ was settled in Alexander v. Richardson, 451 F.2d 1185

(10th Cir. 1971).”). See also McDonald v. Bowen, 818 F.2d

559, 564 (7th Cir. 1986) (the “disability” must be “expected to

last at least twelve continuous months from its alleged onset

date; otherwise she will not receive benefits”); Estep v

Richardson, 459 F.2d 1015, 1016 (4th Cir. 1972) (“To obtain

disability benefits under the Act a claimant must have an

impairment which prevents him from engaging in substantial

gainful activity for a period of at least 12 months.”).

4. The Commissioner's construetion of the Act is not only

consistent with the Act’s text but is also firmly grounded in

common sense. Workers often may have impairments that

last longer than a year, but that prevent them from being

able to work only for a much shorter time. See, e. g., Aleran-

der, 451 F. 2d at 1186 (“For example, an applicant may have

an injury from which he has lost one of his hands. The result

is a physical impairment for the remainder of his life, but if

he is able to engage in any gainful aetivities within a year

from his injury he is not entitled to benefits. “). In fact, many

relatively common ailments—from back injuries, to high blood

pressure, to carpal tunnel syndrome—may predictably last a

lifetime, but may preclude the individual from working only

briefly or for relatively brief, intermittent periods. Titles II

and XVI of the Act, however, were designed to provide dis-

ability benefits to persons who cannot engage in substantial

gainful activity, not to provide impairment benefits to those

who can.

Congress originally enacted the disability insurance pro-

| gram to fill a “gap” in Social Security’s retirement system by

providing benefits to those “forced into premature retire-

ment” before age 65 “by reason of a permanent and total

disability.” H.R. Rep. No. 1189, supra, at 3 (emphasis added).

See pp. 2, 19, supra; see also pp. 39-40, infra (discussing Con-

gress’s rejection of benefits for short-term disabilities). It is

thus the sustained inability to work on account of an im-

pairment, not the impairment alone without regard to its

effect on the claimant, that gives rise to the need and justifi-

cation for the payment of disability benefits.

5. The court of appeals nevertheless rejected the Com-

missioner’s construction, holding that the definition of “dis-

ability” in Section 423(d)(1)(A) precludes the Commissioner

from construing the Act to require that the inability to en-

gage in substantial gainful activity have lasted, or be ex-

pected to last, at least 12 months. The court of appeals, how-

ever, did not identify any provision of the Act that expressly

states that there is no “duration requirement for the inabil-

ity to engage in substantial gainful activity.” Pet. App. 7a.

It did not identify any provision stating that the impairment

need not persist at a disabling level of severity for the statu-

tory 12-month period. And it offered no plausible reason

why Congress would have insisted that the underlying im-

pairment last for 12 months but not the claimant’s inability

to work “by reason of” that impairment. Instead, the court

relied on the observation that, as a matter of grammar, the

phrase “which has lasted or can be expected to last for not

less than 12 months” in Section 423(d)(1)(A) modifies the

word “impairment,” and not the phrase “inability to engage

in any substantial gainful activity.” Id. at 7a-Sa. Accord-

ingly, the court declared, there is no duration requirement

for the disability, id. at 7a, and a claimant is disabled if he

has an impairment that has lasted or is expected to last 12

months, “even if the inability to engage in substantial gainful

activity” on account of the impairment “does not * * *

7 ag persist for twelve months.” Id. at 8a.

a matter of grammar, the court of a i

that the phrase ——— he eepeuned —

in Seetion 423(d)(1)(A) modifies the word “impairment.”

Section 423(d)(1)(A) therefore does expressly require that

the impairment last at least 12 months. But the court of

appeals erred in leaping from that unremarkable observation

to the remarkable conclusion that Section 423(d)(1)(A) affir-

matively precludes a construction under which the disabilit

—the inability to engage in substantial gainful activity “by

reason of” the impairment—must also have lasted or be

expected to last 12 months. In fact, the court of appeals’

ane ng: pe of Section 423(d)(1)(A) shows no more

Pg „While that provision elearly addresses how long

e impairment must last, it is ambiguous regarding how

severe the impairment must be during that 12-month period

In other words, it does not specifically address whether the

impairment must persist with such severity as to preclude

all substantial gainful activity during the qualifying period—

much less foreclose the Commissioner from construing the

Act to embody such a requirement. Cf. Mourning v. Famil

Publ 'n Serv., Inc., 411 U.S. 356, 372-373 (1973). Because the

text of Section 423(d)(1)(A) does not unambiguously resolve

this issue, it is for the Commissioner, not the court of ap-

peals, to choose among reasonable constructions. See Pau-

ley v. Bethenergy Mines, Inc., 501 U.S. 680, 703-704 (1991).°

implicitly to rest on icatio maxim expressi i

exclusio alterius. atin — 4 — that — te

More fundamentally, the court of appeals’ analysis wholly

ignores Section 423(d)(2)(A), which gives additional content

to the definition of “disability.” Section 423(d)(2)(A) specifi-

cally declares that an individual is disabled “only if” the im-

pairment precludes him from engaging in substantial gainful

activity. See pp. 23-24, supra. The Commissioner has con-

sistently concluded that the severity requirement codified in

Section 423(d\(2)(A) applies throughout the 12-month period

expressly requiring that the impairment last 12 months, implicitly pre-

cluded any construction of the Act that requires any resulting disability to

last that long as well. The maxim, however, has no application here.

First, Congress’s provision of an express duration period for an impair-

ment simply does not speak to, much less impliedly preclude, the Com-

missioner from addressing how severe the impairment must be during that

duration. Indeed, the statute itself seems to anticipate that the impair-

ment and the inability to engage in substantial gainful activity “by reason

of” the impairment will be coterminous. See pp. 23-24, 27-28, supra.

Second, as other courts of appeals have recognized, application of the

expressio unius canon is not appropriate in cases (such as this one) that

involve an administrative agency’s construction of a statute. Texas Rural

Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 694 (D.C. Cir. 1991)

(“Whatever its usefulness in other circumstances * * * th{e] canon has

little force in the administrative setting.”); Whetsel v. Network Property

Servs., LLC, 246 F.3d 897, 902 (7th Cir. 2001) (“[TJhe canon of expressio

unius est exclusio alterius has reduced force in the context of interpreting

agency administered regulations and will not necessarily prevent the

regulation from being considered ambiguous”). The reason is that an

agency’s interpretation must be given deference unless Congress has “di-

rectly spoken to the precise question at issue,” Chevron, 467 US. at 842,

and “the expressio unius maxim, unsupported by arguments based on the

statute’s structure or legislative history, ‘is simply too thin a reed to

support the conclusion that Congress has clearly resolved [an] issue.’”

Martini v. Federal Nat’l Mortgage Ass u, 178 F.3d 1336, 1343 (D.C. Cir.

1999) (quoting Texas Rural Legal Aid, 940 F.2d at 694), cert. dismissed,

528 U.S. 1147 (2000); see also Cheney R. R. v. ICC, 902 F.2d 66, 69 (D.C.

Cir.), cert. denied, 498 U.S. 985 (1990); Mobile Communications Corp. v.

FCC, 77 F.3d 1399, 1404-1405 (D.C. Cir.), cert. denied, 519 U.S. 823 (1996);

Amaz Land Co. v. Quarterman, 181 F.3d 1356, 1365 (D.C. Cir. 1999). This

case proves that point. Here, the legislative history shows that Congress

not only lacked an intent to preclude the Commissioner’s interpretation

and implementation, but actually contemplated them as based on the

proper understanding of the Act. See pp. 20-21, supra; pp. 32-39, infra.

during which the impairment must persist. That

tion is directly supported by the sent of Section —

which requires not merely an impairment that has lasted or

can be expected to last at least 12 months, but also an in-

ability to engage in substantial gainful activity “by reason

of” that 12-month long impairment. Congress, moreover

has endorsed the Commissioner’s construction. When it

amended the Act to add Section 423(d)(2)(A), it “reaf-

trmledy that an individual “who does substantial gainful

work despite an impairment” is “not disabled for purposes of

establishing a period of disability or for social security bene-

fits based on disability during any period in which such work

5 2 S. Rep. No. 744, supra, at 49 (emphasis

2 aap — of appeals, by contrast, pointed to nothing

1 specifically precludes the Commissioner’s

B. The Commissioner's Interpretation Is S

* History Of Congress’s Amendments To — N

Even if the text of the Act does not compel the conclusion

Congress intended to impose a duration requirement for

= disability—i.e., to require that the impairment be of dis-

ling severity in each of the 12 months during which it has

persisted or can be expected to persist—the history of the

10 The court of appeals’ decision also

Of places a gloss on the Act that

seems unlikely in view of its structure. Section 423(4)(1)(A) by its terms

native obviously implies an element of ity; i

great severity; it i

sensible to read the second alternative, the requiremen r —

ment have lasted or be expected to last for 12 months, as encompassing an

— 3 — severity as well. By contrast, it is implausible to

uppose t Congress commanded an award of benefits whenever a

<isabling impairment is so severe that it is expected to cause death, and

. the impairment is only briefly disabling but persists for 12

n in a relatively inconsequential form. Yet that is precisely the con

struction adopted by the decision below. :

Act and its implementation does. It is well established that

the proper construction of an Act of Congress may be in-

formed by pre-existing administrative constructions of

which Congress was aware. Cf. Lorillard v. Pons, 434 US.

575, 580-581 (1978). Here, over a period that spans more

than four decades, Congress repeatedly acknowledged the

Commissioner’s construction, repeatedly endorsed it when

| amending the Act, and repeatedly adopted that construction

itself.

1. When Congress first established the disability insur-

ance program in 1956, it provided disability benefits to cov-

ered workers who were unable to engage in substantial gain-

ful activity on account of an impairment of a “long-continued

and indefinite duration.” See Social Security Amendments

of 1956, ch. 886, § 103, 70 Stat. 815; 42 U.S.C. 423(c)(2) (1958).

Anticipating the Commissioner’s construction, Congress un-

derstood that provision as requiring “that the disability,”

which was statutorily defined as the inability to work on ac-

count of the impairment, “be of long-continued and indefinite

duration.” H.R. Rep. No. 1189, supra, at 5. Thus, the House

Report explained, “an individual who is able to engage in any

substantial gainful activity will not be entitled to disability-

insurance benefits.” Ibid. Consistent with the House Re-

port, the Commissioner’s regulations under Section 405(a)

and “written guidance” issued to the state agencies pursuant

to 42 U.S.C. 421(a)(1) and (2) made it clear that the “long-

continued and indefinite duration” requirement refers to the

expected duration of the medical impairment at a level of

severity sufficient to preclude substantial gainful activity.

See pp. 24-25, supra (citing the Commissioner’s 1957 and

1961 regulations, as well as the 1957 OASI Disability In-

surance Letter No. 39).

That construction is consistent not merely with the text

and legislative history of the 1956 amendments themselves,

but also with the “disability freeze” provisions of the Social

Security Amendments of 1954, ch. 1206, § 106, 68 Stat. 1079,

1080, from which the language of the 1956 amendments was

drawn. The disability freeze provisions sought to ensure

that individuals who had worked a sufficient amount of time

to qualify for retirement benefits did not find their entitle-

ments substantially reduced because of a sustained period of

disability i. e., inability to engage in substantial gainful ac-

_ tivity by reason of an impairment—prior to retirement.

That could occur before 1954 because benefits were calcu-

lated as a percentage of the worker’s average earnings. The

1954 disability freeze provisions excluded from consideration

the periods during which the worker was unable to engage in

substantial gainful activity because of a disability. The

committee reports on the 1954 amendments reveal an expec-

tation that the inability to work had to be long-lasting before

the disability freeze provisions could be invoked. See H.R.

Rep. No. 1698, 83d Cong., 2d Sess. 2-3 (1954) (“Long periods

of absence from covered work generally indicate that the

individual has not been dependent on his own earnings from

work for support, and benefits are properly reduced or not

paid in such circumstances,” except in “the case of workers

who are out of employment by reason of a total disability

lasting for an extended period of time.”); S. Rep. No. 1987,

83d Cong., 2d Sess. 20 (1954) (disability freeze redresses pro-

blem that, under present law, a worker’s “old-age and sur-

vivors insurance rights are impaired or may be lost entirely

when workers have periods of total disability before reach-

ing retirement age.”).”

m The 1954 committee reports also state that the “long-continued and

indefinite duration” requirement “refers only to the duration of the

impairment and does not require a prediction of a continued inability to

work.” H.R. Rep. No. 1698, supra, at 23; S. Rep. No. 1987, supra, at 21.

Those statements, however, are inconsistent with Congress’s expectation

that the period of disability would be lengthy, and were subsequently

refuted by the reports accompanying the enactment of Section

423(d)(1)(A) in 1956 and subsequent amendments, see p. 33, supra; pp. 35-

39, infra, which express the expectation that the disability must last as

long as the impairment. Moreover, in 1954, when the disability freeze

2. When Congress amended Section 423(d) in the Social

Security Amendments of 1965, Pub. L. No. 89-97, § 303(a)(1),

79 Stat. 366, it was well aware of the Commissioner's con-

struction. The House Report on the bill noted that, ſlulnder

present law,” benefits are “payable only if the worker's

disability”—i.e., the inability to engage in substantial gainful

activity by reason of the impairment—‘“is expected to

be of long-continued and indefinite duration.” H.R. Rep. No.

213, 89th Cong., Ist Sess. 88 (1965) (emphasis added).

Although Congress changed the duration requirement from

“long-continued and indefinite” to “not less than 12 months,”

Congress declined to disturb the requirement that the

impairment persist at a disabling level of severity for the

specified period. Thus, the Senate Report explained that the

1965 amendments “eliminate the present requirement that a

worker’s disability must be expected to be of long-continued

and indefinite duration, and instead provide that an insured

worker would be eligible for disability benefits if he has been

under a disability which * * * has lasted or can be ex-

pected to last for a continuous period of not less than 12 cal-

provisions were enacted, any distinction between the inability to engage in

substantial gainful activity and the impairment giving rise to it might have

been expected to be largely without significance insofar as duration was

concerned. Before the 1954 amendments, benefits would be reduced or

placed at risk when the worker's earnings declined. If the impairment did

not preclude substantial gainful activity and the worker's earnings did not

decline as a result, there would have been no need to invoke the disability

freeze provisions. Moreover, under Section 102(b)(2) of the 1954 Amend-

ments, the Secretary could exclude up to four years of a claimant’s work

history from the calculation of the claimant’s “average monthly wage” if

doing so “would produce the highest primary insurance amount.” 68 Stat.

1068. That provision, Secretary of Health, Education, and Welfare Oveta

Culp Hobby explained, protected workers who had “short periods of

absence from covered work.” The Social Security Amendments of 1954:

Hearings Before the House Comm. on Ways and Means, 83d Cong., 2d

Sess. 68 (1954). The disability freeze provisions were thus necessary only

to protect the rights of workers who were forced to spend “long periods

out of the labor force” due to “a totally disabling condition.” /bid.

endar months.” S. Rep. No. 404, supra, at 13 (em i

added). The Senate Report further explained —

— amended, would provide for the payment of disability

nefits for an insured worker who has been or can be ex-

pected to be totally disabled throughout a continuous period

of 12 calendar months.” Id. at 98 (emphasis added); see also

id. at 18 (an insured worker is “eligible for disability benefits

if he has been under a disability which can be expected to

last for a continuous period of not less than 12 calendar

months” (emphasis added)).”

“Tt is well established that when Congress revisits a stat-

ute giving rise to a longstanding administrative interpreta-

tion without pertinent change, the ‘congressional failure to

revise or repeal the agency’s interpretation is persuasive

2 See also S. Rep. No. 408, 96th Cong., Ist Sess. 18

~ (1979) (explaining

that, in 1966, “the definition requiring that a disability be of ingen

ued indefinite duration’ was changed to permit benefits for dis-

abilities expected to last at least 12 months.” (emphasis added).

__ Congress was specifically advised of

tion and the effect it would has on the the Commissioner’s construc-

dition is such that there is no question about the fact

for (the proposed] 6 month period.” tua,

3. a. Congress has since repeatedly reaffirmed the Com-

missioner’s construction. Shortly after the 1965 amend-

ments, the Commissioner issued revised criteria specifying

that the impairment must have prevented or be expected to

prevent the performance of substantial gainful activity

throughout the 12-month period. See pp. 25-26 & note 7,

supra. When Congress amended the Act in 1967 to supple-

ment the basic definition of “disability,” it re-emphasized in

the text of the amendment itself that the impairment must

be of “such severity” so as to preclude the claimant from

vengaglingl in any * * * kind of substantial gainful work

which exists in the national economy.” 42 U.S.C. 423(d\(2)(A).

And far from suggesting that Congress was unaware or

opposed to the Commissioner’s application of that severity

requirement when determining whether the disability has

lasted or can be expected to last the requisite 12-month

duration, Congress endorsed that approach: [Ann individual

who does substantial gainful work despite an impairment or

impairments” that otherwise might be disabling, the Senate

Report “reaffirm[ed],” is “not disabled for purposes of

establishing a period of disability or for social security

benefits based on disability during any period in which such

work is performed.” S. Rep. No. 744, supra, at 49; S. Rep.

No. 544, 90th Cong., Ist Sess. 31 (1967) (same).

b. When Congress established the SSI program in Title

XVI of the Act in 1972 to provide financial assistance to

needy disabled persons, it incorporated the definition of

“disability” from Title II into the SSI program. Specifically,

acting against the settled background of the Commissioner's

longstanding construction of Sections 423(d)(1)(A) and

(d) 2A), Congress enacted those provisions virtually verba-

tim in Title XVI. See 42 U.S.C. 1382c(a)(3A) (1994 & Supp.

V 1999); 42 U.S.C. 1382c(a\(3(B). Just as “Congress is pre-

sumed to be aware of an administrative or judicial interpre-

tation of a statute and to adopt that interpretation when it

re-enacts a statute without change,” it likewise can be pre-

sumed to have done so when it “adopts a new law incorpo-

rating sections of [that] prior law.” Lorillard, 434 U.S. at

580, 581. In incorporating the language of Section 423 into

Title XVI, moreover, Congress expressly recognized that,

under Section 423, Injo benefit is payable * unless the

disability is expected to last (or has lasted) at least 12 con-

_ secutive months.” H.R. Rep. No. 231, supra, at 56 (emphasis

added). And it made clear that that rule “would not be

changed” by the 1972 amendments. Ibid.; see also p. 42,

7 ee ee

ments).

e. Congress reaffirmed the Commissioner’s construction

again in 1984. Following the 1972 amendments, the Commis-

sioner reiterated, through a series of Social Security Rul-

ings, the requirement that the impairment prevent or be ex-

pected to prevent the performance of substantial gainful ac-

tivity during the entire 12-month disability period. See, e. g.,

SSR 73-7e and SSR 82-52 (cited and quoted p. 26, supra).

The Commissioner also incorporated the severity require-

ment into the regulatory five-step sequential evaluation

process. See Yuckert, 482 U.S. at 147-148. Under that five-

step process, a claim that is adjudicated more than 12-

months after onset of the alleged disability will be denied if

the claimant has returned to substantial gainful activity

within the 12-month period. See H.R. Rep. No. 618, 98th

Cong., 2d Sess. 6-9 (1984); 20 C.F.R. 404.1520 (1982). After

examining that process and clarifying the criteria that must

be used in evaluating disabilities, see Social Security Dis-

ability Benefits Reform Act of 1984, Pub. L. No. 98-460, 98

Stat. 1794, Congress emphasized that it did not “intend to

alter the current definition” of disability. H.R. Rep. No. 618,

supra, at 6. To the contrary, Congress “reaffirm[ed] that the

purpose of the disability insurance program is to provide

benefits only for those who are unable to work.” Id. at 7; see

also id. at 8 (“emphasiz[ing] * the intent of Congress

that disability benefits should be granted to those who are

unable to work because of a medically determinable impair-

ment”).

4. The more than four-decade history of the definition of

disability thus makes one thing unmistakable: Congress

specifically contemplated the Commissioner’s construction of

the Act, endorsed it, and reaffirmed it. In view of that his-

tory, the Commissioner’s construction is not merely a “rea-

- gonable” or “permissible” interpretation of the Act.

Chevron, 467 U.S. at 842-843, 844; Sullivan v. Everhart, 494

U.S. 83, 89 (1990) (“rational and consistent with the stat-

ute”). It is the most reasonable interpretation, and the one

that Congress intended.

C. The Court Of Appeals’ Construction Creates

Precisely The Short-Term Disability Program That

Congress Chose Not To Enact

1. Congress created Title II’s disability insurance pro-

gram in 1956 to fill a perceived “gap” in the Social Security

retirement system by providing benefits to “workers who

are forced into premature retirement” before age 65 by

“reason of a permanent and total disability.” H.R. Rep. No.

1189, supra, at 3 (emphasis added). Congress initially en-

sured that the program achieved that limited goal by re-

quiring that the disabling impairment be of long-continued

and indefinite duration. When Congress in 1965 changed the

duration requirement from long-continued and indefinite to

not less than 12 months, Congress chose 12 months because

it was a reasonable proxy for permanence. “[E]xperience

under the disability program” between 1956 and 1965,

Congress determined, had “demonstrated [that] in the great

majority of cases in which total disability continues for at

least a year the disability is essentially permanent.” S. Rep.

No. 404, supra, at 99. Congress, in fact, rejected a shorter

six-month period, proposed in the House of Representatives,

because it “could result in the payment of disability benefits

in cases of short-term, temporary disability.” Id. at 98-99.

The Senate Report explained that, in order to prevent the

payment of benefits in cases of such temporary disabilities it

is “necessary to require that a worker be under a disability

for a somewhat longer period than 6 months in order to

qualify for disability benefits.” Ibid. (emphasis added).

The court of appeals’ decision cannot be reconciled with

Congress’s deliberate decision not to provide benefits “in

_ cases of short-term, temporary disability.“ S. Rep. No. 404,

supra, at 99. As the court of appeals acknowledged, under

its construction of the statutory language, no “d

. , urati

quirement for the inability to engage in substantial gainful

activity * * * exists.” Pet. App. 7a. As a result, the Com-

missioner would have to award Title II insurance benefits to

eee who are unable to work for only five monthe

(the duration of the waiting period provided by 42 U.S.C.

423(c)(2)(A)). Moreover, because Title XVI does not have a

waiting period, the Commissioner would be required to pay

Title XVI SSI disability benefits to claimants who suffer an

inability to engage in substantial gainful activity of virtually

— — which would create a standard of eligibility for

nefits that is far more lenient even than the five-month

ae - that the court of appeals fashioned for Title II. The

court o appeals nowhere explained why Congress would

have intended such a result; nor did it explain why that re-

is consistent with Congress’s re decisi

ly peated on to cover

erhaps recognizing that defect in the decision below

respondent has argued that the five-month waiting period

provided by 42 U.S.C. 423(c¢)(2)A) obviates the inconsis-

tency between the court of appeals’ decision and Congress’s

deliberate decision not to authorize benefits for short-term

disabilities. See Br. in Opp. 11, 17-18. ut Section

423(c)(2)(A) hardly eliminates that conflict. For one thing, as

we have pointed out, the waiting period applies only to Title

II's disability insurance program, 42 U.S.C. 401 et geg., and

does not apply to Title XVI's SSI program.

Even with respect to Title II, the waiting period hardly

answers the concern. As explained above, Congress con-

cluded in 1965 that even a six-month inability to work was

the sort of short-term disability that should not qualify for

benefits. See pp. 39-40, supra. For that very reason, Con-

gress chose to require that the “worker be under a disability

for a somewhat longer period,” namely one year. See p. 40,

supra. That judgment by Congress refutes the court of

appeals’ apparent assumption that the five-month waiting

period furnishes the only protection that Congress included

in the Act against converting the Title II disability program

into a benefits program for short-term disabilities.

In any event, reliance on the five-month waiting period of

42 U.S.C. 423(c) misconstrues both the meaning and purpose

of that provision. The waiting period provided by Section

423(c)(2)A) does not address whether an individual suffers

from a disability an impairment of sufficient severity and

duration to entitle him to benefits. Instead, it provides that

a claimant who concededly is disabled within the meaning of

the Act nevertheless is not entitled to benefits and cannot

receive payments for the first five months of the period of

disability. The five-month waiting period serves three pur-

poses. First, it helps to save public resources and to lessen

the drain on the Trust Fund. Second, it assists in admini-

stration by allowing the development of additional evidence;

in some cases, Congress explained, the waiting period per-

mits “temporary conditions to be corrected or to show defi-

nite signs of probable recovery” before potentially inappro-

priate payments are made. H.R. Rep. No. 1189, supra, at 6.

Third, like a deductible on an insurance policy, it deters the

submission of potentially insubstantial or unmeritorious

claims. “{TJhe fact that the worker frequently will be with-

out income during [the waiting] period * * * would make it

unprofitable for a person who could work not to do so.” Ibid.

The waiting period thus identifies the portion of the disabil-

ity period during which a claimant will not receive benefits

despite being disabled and unable to work. It does not spec-

ify the length of time during which an individual must be un-

able to engage in substantial gainful activity in order to be

— disabled, and thus eligible for benefits, in the first

place.

Congress has recognized as much, and has consistently

treated the waiting period and the disability period as dis-

tinet. For example, when Congress shortened the waiting

period from six months to five in 1972, the House Report

specifically noted that altering the waiting period would not

shorten the required duration of the disability itself. Not-

withstanding the one-month decrease in the waiting period,

the House Report explained, “[nJo benefit is payable * * *

unless the disability is expected to last (or has lasted) at

least 12 consecutive months or to result in death.” H.R. Rep.

No. 231, supra, at 56 (emphasis added). Respondent’s at-

tempt to treat the waiting period as a replacement for the

duration and severity requirements cannot be reconciled

with either the text of the Act or Congress’s manifest intent

in enacting it.

II. SECTION 422(c)(2) DOES NOT PROVIDE A

“TRIAL WORK” PERIOD WHERE THE CLAIMANT

RETURNS TO SUBSTANTIAL GAINFUL ACTIVITY

WITHIN 12 MONTHS OF THE ALLEGED ONSET

OF HIS DISABILITY AND BEFORE BEING

AWARDED BENEFITS

The court of appeals also erred in concluding that respon-

dent was entitled to a “trial work period” under 42 U.S.C.

422(c) when the evidence at the time his claim was adjudi-

cated showed that he had returned to substantial gainful ac-

tivity within 12 months of the alleged onset of his disability.

Under Section 422(c), a beneficiary who is entitled to bene-

fits does not lose that entitlement by performing substantial

gainful activity during the nine-month trial work period.

The “period of trial work shall begin with the month in which

[the claimant] becomes entitled to disability insurance bene-

fits.” 42 U.S.C. 422(c)(3). That period ends after nine

months of substantial gainful activity, or termination of the

disability, whichever comes first. 42 U.S.C. 422(c)(4). “[Ajny

services rendered by an individual during a period of trial

work” are “deemed not to have been rendered by such indi-

vidual in determining whether his disability has ceased in a

month during such period.” 42 U.S.C. 422(c)(2).

A. Reversal Of The Court Of Appeals’ Ruling Concerning

The Necessary Duration Of The Inability To Engage

In Substantial Gainful Activity Requires Reversal Of

Its Ruling On The Trial Work Issue

In this case, the court of appeals held that respondent was

entitled to a trial work period because he became entitled to

benefits under Title II after he was unable to engage in sub-

stantial gainful activity during the five-month waiting pe-

riod. “{WJhether [respondent] is entitled to a trial work pe-

riod, in light of his return to part-time work in May 1995 and

SGA in October 1995,” the court stated, “is conclusively set-

tled by the determination that [respondent] was disabled

and entitled to disability benefits” after that five-month

period. Pet. App. 9a; see also id. at 10a (relying on the

conclusion that respondent “was entitled to disability bene-

fits as of April 1995”). For the reasons given in Point I

above, however, the court of appeals erred in concluding that

respondent was entitled to benefits merely because his

underlying impairment lasted (or was expected to last) 12

months. Instead, the Commissioner properly determined

that respondent was not entitled to disability benefits be-

cause, at the time his claim was adjudicated, his impairment

had neither lasted nor was expected to last for the required

minimum 12-month period at a level of severity that pre-

cluded substantial gainful activity. For that reason alone,

the court of appeals erred on the trial work issue.

B. In Any Event, The Court Of Appeals Erred In Its

Interpretation Of 42 U.S.C. 422(c) And 423(d)(1)(A)

1. Even putting that error to one side, the court of ap-

peals’ analysis (see Pet. App. 10a-13a) fundamentally misin-

terprets Section 422(c) and the “can be expected to last” lan-

guage in Section 423(d)(1)(A), erroneously invalidating the

. Commissioner’s trial work regulations as a result. The

Commissioner has consistently construed Sections 422 and

423 as making a trial work period available only if the im-

pairment has already precluded substantial gainful activity

for 12 continuous months, or where there has been a deter-

mination that it can be expected to do so. See SSR 82-52; 20

C. F. R. 404.1592(d)(2) (as added by 65 Fed. Reg. at 42,787)

(“You are not entitled to a trial work period” if “you perform

work demonstrating the ability to engage in substantial

gainful activity within 12 months of the onset * * * and be-

fore the date of any notice of determination or decision find-

ing that you are disabled.”). The Commissioner explained:

Because section [422(c)] provides that a trial work period

shall begin with the month in which a person becomes

entitled to title II disability benefits, a claimant who does

not become entitled to disability benefits cannot receive

a trial work period. Under our interpretation of the du-

ration requirement [in Section 423(d)(1)(A)], a person

cannot be found to be under a disability if he or she per-

forms work demonstrating the ability to perform sub-

stantial gainful activity within 12 months after onset and

before we have issued any notice of determination or de-

cision finding disability. * * On the other hand, if a

claimant returns to work before we have made a deter-

mination or decision finding disability, but more than 12

months from onset, the duration requirement may be

satisfied * * *, the claimant may become entitled to

benefits, and the work may be protected by the trial

work period even though the work began prior to a find-

ing of disability.

65 Fed. Reg. at 42,774.

That construction is fully supported by the Act’s text and

history. The Commissioner has concluded that, when de-

termining whether an impairment preventing substantial

. gainful activity has lasted or can be expected to last for the

i i isi should consider

required 12-month period, the decisionmaker st .

all evidence available at the time of the disability determuine-

tion. See 65 Fed. Reg. at 42,780 (expectancy provision can

most reasonably be interpreted to mean that the time of ad-

judication is the relevant point of reference”). Where that

14 The Commissioner’s conclusion that the date of the adjudication is

the appropriate point of reference would appear to be compelled by the

statutory text. Had Congress meant for the Commissioner to de —

whether a disability was “expected to last” 12 months at some point in

past based solely on evidence available at that earlier time, it would not

have made eligibility depend on whether the disabling impairmen *

expected“ present tense—to last 12 months. Instead. it would ve

made eligibility depend on whether the disabling impairment could have

been” or “was expected” to last that long. As the Commissioner observed:

“If Congress had intended benefits to be awarded based on evidence

a claimant’s impairment(s) did not in fact prevent substantial ——

activity for 12 continuous months, but only had been expected to 0 80 4

some earlier point in the 12-month period, we believe that Congress would

have provided for a finding of disability based on an impairments)

was expected to last 12 months, in addition to one which can —

to last 12 months.” 65 Fed. Reg. at 42,780. ow?

appeals misquoted the pertinent statutory language in its holding, since |

declared “that a claimant whose impairment * * * which ‘lasted’ of ‘was

expected to last’ for a continuous period of not less than twelve months

may be disabled * * *. 42 U.S.C. § 423(d)(1(A).” Pet. App. 8a (emphasis

added). The statute actually uses the present tense, “can be expected,

the tense, “was expected.” >

1 — requiring a determination of whether the inability =

have been expected to last twelve months at some indeterminate point

in the past would create a significan t administrati Ae ;

makers would have to sift through a historical record and d . —

some moment in the past, it would have been appropriate to predict 5

the inability to work would last 12 months even if any such noe

would already have proven to be erroneous at the time of the adj -

determination takes place less than 12 months after the on-

set of the alleged disability, and the evidence shows that ths

impairment currently prevents substantial gainful activity

the adjudicator must decide whether the disabling impair.

ment “can be expected to last” for the full 12-month period

1 e., he must project the disability s expected duration. If the

: adjudicator determines based on the evidence that the in-

ability to work by reason of the impairment can be expected

to last for at least 12 months, the individual is disabled and

entitled” to disability insurance benefits, and a trial work

period then “begin[s]” with the first month in which the in-

dividual became so entitled. 42 U.S.C. 422(c)(3). But when

the evidence at the time the claim is adjudicated shows that

the individual actually returned to (or became able to return

to) substantial gainful activity within 12 months of the onset

of the alleged disability, the adjudicator may rely on that

evidence to conclude that the claimant’s inability to work by

reason of his impairment already has failed to last (and thus

cannot be “expected” to last) for at least 12 months. In such

a situation, the claimant has at no point “become[] entitled to

disability insurance benefits” because he has not satisfied

the duration requirement in the statutory definition of dis-

ability in Section 423(d)(1)(A), and the trial work period

therefore never begins. Ibid.

That is precisely how Congress expected the process to

function. Explaining the statutory text at issue here—“has

lasted or can be expected to last”—the Senate Report on the

1965 amendments stated that, where “a worker has been un-

der a disability which has lasted for less than 12 months, the

bill would require only a prediction that the worker’s dis-

ability will continue for a total of at least 12 calendar months

after onset of the disability.” S. Rep. No. 404, supra, at 99.

Where the “disability has existed for 12 calendar months or

cation. Nothing in the legislative record suggests that :

to impose such a burden on the States or the Commissioner eee

more” when the claim is adjudicated, the Report further ex-

plained, “no prognosis would be required.” Ibid. (emphasis

added). Instead, in that situation, the Commissioner may

rely on the claimant’s actual experience during the 12-month

period when determining whether, at the time of the ad-

judication, the disability has lasted or can be expected to last

the requisite duration. Similarly, no such prognosis would be

| required if, at the time the claim is adjudicated, the evidence

shows that the impairment no longer prevents the per-

formance of substantial gainful activity and did not do so for

at least 12 months. See 65 Fed. Reg. at 42,774.

Responding to comments regarding this issue in the recent

rulemaking proceeding, the Commissioner observed that

Congress permitted the agency to find a disability “based on

an impairment which ‘can be expected to last’ 12 months”—

and did not limit the agency to finding disability where the

impairment had already lasted 12 months—in order “to pro-

vide a means for [the agency] to adjudicate disability claims

without having to wait 12 months from onset.” 65 Fed. Reg.

at 42,774. Nothing in the phrase “has lasted or can be

expected to last at least 12 months,” however, requires the

Commissioner “to permit claims * * * in the face of specific

evidence that the claimant’s impairment did not in fact

prevent him or her from engaging in substantial gainful

activity for 12 continuous months.” [bid.

2. The court of appeals’ contrary analysis is flawed. The

court of appeals reasoned, in essence, that the Commis-

sioner’s regulation is contrary to the statutory language be-

cause it conditions entitlement to a trial work period on ei-

ther a “finding of disability” or an actual inability to engage

in substantial gainful activity for the 12-month period re-

quired by Section 423(d)(1)(A). Pet. App. 12a. The court

rested that conclusion on its belief that the Act provides that

the trial work period “shall begin” once the claimant is “eli-

gible to receive benefits.” Ibid. The court, however, mis-

quoted the Act. The Act makes the trial work period begin

once an individual is “entitled” to benefits, not once he is

“eligible.” See 42 U.S.C. 422(c)(1). As explained above, an

individual who, at the time the claim is adjudicated, has suc-

cessfully engaged in substantial gainful activity before the

expiration of the 12-month period is not “entitled” to bene-

fits. Where the claimant never “becomes entitled to bene-

fits,“ 42 U.S.C. 422(c)(1), the trial work period under Section

422 never “begin{s].”"°

The court of appeals also thought it significant that, under

the Commissioner’s approach, entitlement to benefits (and

thus to a trial work period) might sometimes be affected by

when the claim is adjudicated. For example, if an adjudica-

tor finds a claimant disabled following seven months of in-

ability to engage in substantial gainful activity, based on a

prediction that the claimant’s inability to work will last at

least an additional five months, the claimant receives bene-

fits and a trial work period, even if the prediction later turns

out to have been wrong and the claimant returns to work

before the 12-month period has lapsed. In contrast, if the

same claimant’s request for benefits is adjudicated after the

12-month period has lapsed and the claimant successfully

returned to work within the 12-month period, the claimant

15 The court of appeals was also fundamentally mistaken when it stated

that consideration of respondent’s return to substantial gainful activity, in

whether respondent was disabled, “was in contravention of

the Act.” Pet. App. 10a. Section 422(c)(2) does not prohibit consideration

of the claimant’s substantial gainful activity when determining whether a

disability exists in the first instance. Instead, Section 422(c)(2) states that

substantial gainful activity, if it occurs during the trial work period, is

deemed not to have occurred when “determining whether his disability

has ceased in a month during such period.” 42 U.S.C. 422(c)(2) (emphasis

added). See also H.R. Conf. Rep. No. 964, 101st Cong., 2d Sess. 989 (1990)

(“During this period, disabled beneficiaries may test their ability to work

without affecting their entitlement to disability benefits. Any work and

earnings are disregarded in determining whether the beneficiary's dis-

ability has ceased.”). Section 422 thus addresses determinations of

whether a disability has ceased, not whether the requirements for an

initial finding of disability have been met.

would not be entitled to receive benefits or a trial work pe-

riod.

As the Commissioner has explained, “the relatively infre-

quent, but regrettable, occasions in which” the timing of the

adjudication affects the outcome are a “necessary” conse-

quence of permitting the “SSA to adjudicate disability claims

and award benefits without having to wait 12 months from

onset,” as well as the necessity of relying on potentially

faulty predictions about an impairment’s duration when do-

ing so. 65 Fed. Reg. at 42,780. Simply put, the fact that

some individuals may be awarded benefits (and trial work

periods) based on predictions about the duration of their in-

ability to engage in substantial gainful activity that turn out

to have been incorrect in no way compels the Commissioner

to award benefits to those individuals who, based on all the

available evidence, clearly are not entitled to receive them.

Certainly nothing in the Act compels the Commissioner to

ignore evidence proving that the claimant’s inability to en-

gage in substantial gainful activity in fact did not last (and

thus cannot be expected to last) the requisite period of time.

The court of appeals, however, appeared to suggest that

the decisionmaker must ignore such proof and award bene-

fits where, for example, the adjudicator knows that the

claimant successfully returned to work before the 12-month

period expired. There is no basis for reading such an exclu-

sionary rule into the Act. In other legal contexts, evidence

that develops after a claim is filed, but before it is adjudi-

cated »s admissible even though the result may be that out-

comes depend on when the adjudication takes place. For ex-

ample, a plaintiff suing in tort for lost prospective wages will

recover less if, after he is injured but before trial, he returns

to work and thereby conclusively demonstrates that his

earning capacity was not so greatly diminished as originally

claimed. No one suggests that a jury would be precluded

from taking such post-claim/pre-trial conduct into account

merely because the evidence would not have been available

had the trial taken place earlier. Similarly here, there ir no

reason why the Commissioner should be barred from taking

an applicant’s post-claim return to work into account, where

it bears directly on whether his inability to engage in sub-

stantial gainful activity by reason of the impairment has

lasted (or can be expected to last) for at least 12 months.

CONCLUSION

The judgment of the cou o appeals should be reversed.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

NOVEMBER 2001

16 The court of appeals’ other reasons for rejecting the Commissioner s

interpretation of the “can be expected to last” language in Section

423(d)(1)(A) also lack merit. First, the court rejected that interpretation

because the Act does not explicitly mention adjudication as a prerequisite

to a finding of disability. Pet. App. 13a. But the Act does permit a finding

of disability when the impairment preventing substantial gainful activity

“can be expected” to last 12 months. The Commissioner reasonably con-

cluded that the relevant expectation is that of the decisionmaker, on the

basis of the evidence available at the time of the disability determination.

See p. 45 & note 14, supra. Second, the court observed that no other part

of the Act “differentiates between claims adjudicated within twelve

months, and claims adjudicated after twelve months.” Ibid. But no other

part of the Act contains similar statutory language regarding expectan-

cies.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.