# Petitioners Brief — Barnhart v. Walton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0473%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 2002 - **Citation:** 535 U.S. 212 ## Text Al No. 00-1937 In the Supreme Court of the United States JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, PETITIONER Y. 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 14 19 IV 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 8 8 88 — 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 od VI 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 25 24 24 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 IX 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 U. 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) 2 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, 3 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). 4 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 5 (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, 6 482 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 7 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 . 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, — 10 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). 11 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 12 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 13 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 14 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 15 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 16 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- 17 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, 18 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 19 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- 21 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 24 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 27 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 28 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 29 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 30 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 by 31 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. 82 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 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 - 46 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 47 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 48 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. 49 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 50 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0473%3A06. Public record. Not legal advice.