Respondents Brief — Barnhart v. Walton
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ty) Supreme Court, U.S.
” FILED
No. 00-1937
E 2001
In The OFFICE OF THE CLERK
Supreme Court of the United States
Sf
JO ANNE B. BARNHART,
Commissioner of Social Security,
Petitioner,
V.
CLEVELAND B. WALTON,
Respondent.
+
On Writ Of Certiorari
To The United States Court Of Appeals
For The Fourth Circuit
¢
BRIEF FOR THE RESPONDENT
e
KaTHRYN L. PrRyoR
Counsel of Record
CENTRAL VIRGINIA LEGAL
Ap Society, INc.
P.O. Box 12206
Richmond, Virginia 23241
(804) 648-1012
James W. SPEER
VirGINIA Poverty Law CENTER
201 West Broad Street
Suite 302
Richmond, Virginia 23220
(804) 782-9430
MAarce.Luinus L.M.B. SLAG
Lecat Arp Justice CENTER
101 West Broad Street
Suite 111
Richmond, Virginia 23220
(804) 643-1086
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
i
RESTATEMENT OF QUESTIONS PRESENTED
1. Whether a claimant is entitled to disability bene-
fits if he has a severe physical or mental impairment
which has lasted or is expected to last at least 12 months,
but he engages in substantial gainful activity within 12
months of his onset date.
2. Whether a claimant under Title II is entitled to a
trial work period if he has a severe impairment which has
lasted or is expected to last more than 12 months, even
though he returns to substantial gainful activity after the
five-month waiting period but within 12 months of his
onset date.
ii
TABLE OF CONTENTS
Page
RESTATEMENT OF QUESTIONS PRESENTED...... i
TABLE OF AUTHORITIES........ Veewectccoesevces iv
STATEMENT OF THE CASE.........00cceeeeeeeees 1
SUMMARY OF THE ARGUMENT .............+++: 2
ET cil bcc GGeddsnaredeabadoccceoenece se 6
I. The Fourth Circuit properly concluded that it is
the impairment, not the inability to engage in
SGA, which must last 12 months .............
A. The plain language of the statute defining
disability dictates that it is the impairment
which must last 12 months ...............
B. This interpretation of the statute is consistent
with the legislative history of the Act.......
C. The separation of the duration requirement
(applicable only to the impairment) and the
severity requirement is consistent with
Social Security’s own regulatory scheme ..
D. Most courts which have interpreted the lan-
guage of the statute have concluded that
the 12-month duration requirement applies
to the impairment, not to the inability to
DOTTITT FIBA oc cs cccccccccicccccesocccoces
E. Policy considerations weigh in favor of Wal-
ton’s position that the 12-month duration
requirement applies to the impairment, not
to the inability to perform substantial gain-
FUE BOUVIER, occ ceivvccccsctevevccecccocecs
14
20
21
iii
TABLE OF CONTENTS - Continued
Page
Il. A claimant is entitled to disability benefits and
to a trial work period if he meets all other
requirements of entitlement and the five-month
waiting period has elapsed, even though he
returns to substantial gainful activity within 12
GED GF GRID o cccdiccctccccccccscccccccececs
A. According to the plain language of the stat-
ute and supporting regulations, an individ-
ual is entitled to benefits and a trial work
period if he returns to SGA within 12
SEED GE GHEE cc ccccccccccccesccccccces
B. This construction of the statute and regula-
C. This construction of the statute is supported
by the rulings of four other courts of
appeals and numerous district courts .....
D. Sound policy concerns undergird the rulings
of the Fourth Circuit and other courts ......
GUUS ccccccecccceccccceccetesoocosevceses
26
26
33
37
iv
TABLE OF AUTHORITIES
Cases
Alexander v. Richardson, 451 F.2d 1185 (10th Cir.
1971), cert. denied, 407 U.S. 911 (1972).........
Alexander v. Sandoval, 121 S.Ct. 1511 (2001)......
Bragdon v. Abbott, 524 U.S. 624 (1998) ...........
Burlington Northern R. Co. v. Oklahoma Tax Comm'n,
Ge Ws Qe Cc bancndctntsedéoessesesecss
Carter v. United States, 530 U.S. 255 (2000).......
Cheney R.R. Co. v. ICC, 902 F.2d 66 (D.C. Cir. 1990) ....
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984)..............
Colautti v. Franklin, 439 U.S. 379 (1979)..........
Connecticut Nat'l Bank v. Germain, 503 U.S. 249
GIFTED vo covccdcocascvescosecendevesesncenveces
Me ics shttiscei tn othtcencuchaceass
Deihl v. Sec’y of Health & Human Services, 835
F.Supp. 1182 (C.D.Cal. 1993) .............2005.
Duncan v. Walker, 121 S.Ct. 2120 (2001)..........
Estep v. Richardson, 459 F.2d 1015 (4th Cir. 1972).
Ex parte Collett, 337 U.S. 55 (1949) ..............
Fabel v. Shalala, 891 F.Supp. 202 (D.N.J. 1995)....
FEC v. Democratic Senatorial Campaign Comm., 454
Wa BF GRD corde cas cnicccnccoeccdsébedosscs
v
TABLE OF AUTHORITIES - Continued
Page
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).......... 18
Goldstein v. Harris, 517 F.Supp. 1314 (S.D.N.Y.
Bohn 6h0 8 dbbbndp0cnsssa co ccencccedsacoucdecce 39
Hartford Underwriters Ins. Co. v. Union Planters
Bank, N.A., 530 U.S. 1 (2000)............00eeeeeeees 9
Hassan v. Apfel, 2000 U.S. Dist. LEXIS 16953
SE ME bo dd vcs cc ncccdeneccsesescase 23, 31, 39
Hunter v. Department of Health & Human Services,
851 F.Supp. 75 (E.D.N.Y. 1994)...... 14, 28, 33, 39, 40
Jenkins v. Heckler, 783 F.Supp. 998 (D.S.C. 1992) ..23, 39
Kendrick v. Califano, 460 F.Supp. 561 (E.D.Va. 1978) .... 31
Lorillard v. Pons, 434 U.S. 575 (1978) ................ 18
Market Co. v. Hoffman, 101 U.S. 112 (1879)........... 29
McDonald v. Bowen, 818 F.2d 559 (7th Cir. 1986)
cena eine thee cbnadvtsecereés 22, 23, 37, 39, 40
Meese v. Keene, 481 U.S. 465 (1987)................4.. 12
Mulderig v. Sullivan, 1993 U.S. Dist. LEXIS 908
i i initia oghes cos dueskendianease bees 39
Nappa v. Sec’y of U.S. DHHS, 731 F.Supp. 579
Pir. in ¢digst checubdcie pacegcsouteetes 31
Newton v. Chater, 92 F.3d 688 (8th Cir. 1996)
ddd dinedadiincoomatnatdnss ——a> FS FY F
Pauley v. Bethenergy Mines, Inc., 501 U.S. 680 (1991)
Public Employees Retirement System v. Betts, 492
EUS oh «610 side vigraguesetvwesecesée 13
vi
TABLE OF AUTHORITIES - Continued
Page
Salamalekis v. Comm'r of Soc. Sec., 221 F.3d 828 (6th
GR SEE cnecedenesticcctiancess 14, 23, 31, 32, 38, 39
Shook v. District of Columbia Fin. Responsibility and
Mgmt. Assistance Auth., 132 F.3d 775 (D.C. Cir.
Fn c cecdsacedeccccsectesdccdcceedasedgstGanases 10
Sierakowski v. Weinberger, 504 F.2d 831 (6th Cir.
See b Kdcedapcadéedeeccnedksgeevendécennsaaee 30, 31
Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986) ..... 22
Social Security Board v. Nierotko, 327 U.S. 358 (1946) .... 14
Solid Waste Agency of Northern Cook Cty. v. Army
Corps of Engineers, 531 U.S. 159 (2001) ............ 18
Tepfer v. Secretary of Health & Human Services, 712
F.Supp. 156 (W.D. Ark. 1989) ..............555. 39, 41
Texas Rural Legal Aid, Inc. v. Legal Services Corp.,
949 B26 GES CAC. Cle. BORE). 20 ccccccccccccccsccces 9
Titus v. Sullivan, 4 F.3d 590 (8th Cir. 1993) .......... 24
Walker v. Sec’y of Health & Human Services, 943 F.2d
1257 (10th Cir. 1991)................ 14, 24, 25, 37, 39
White v. Finch, 311 F.Supp. 307 (D. Mass. 1970)...... 21
Williams v. Taylor, 529 U.S. 420 (2000) ............... 18
Wilson v. Shalala, 841 F.Supp. 1491 (E.D. Wash.
inn 0sd cece nncsatonccedsce psebesececonuduccte 39
STATUTES
GE: TE. B Gee vccvecnccencgenetisecencsn canes 27
GD WER. B Ge oe sv nhednctnsonciccanceesinctas 5, 27
vii
TABLE OF AUTHORITIES - Continued
Page
Se A, BH Gs occ cdcevcsccccecvccccsase 4, 27, 32
UBL. © Ge GRID vccccccccccccccceccccscde 15
Se Bias Oe GE os ccwscosccccccceccccecs passim
ep is Oe rc cnccccdenccescdécccccccsces 11
Se A Mn odbeépadecnctéeddcccdcacesansetees 35
REGULATIONS
eT IEE nv codkudhads cedcsecducdedecevees 27
I in oc cccnegchsenssdecdecces stuce 28
ep IED Siccocodbctncevecsvcoescouncseos 27
Pe ee ED encecccccdcccdacesesescoeseecess 28
PE Rhee tadccacesendcotesvecesencctece 20
ee ED Av ceneccgucesédteveccovctaccoes 21
Be ED occccncececncsiceccécccesces 11, 21
ee es dev ccveenedadéeecssceccecesces 27
SE OF EE bn cGcecnccesvcccccesevescescoce 27
Sh Pa cone ieekdeddeusweekesegscoeseeess 35
i i: wide wa pinehgidetscevedvesduveseee 20
Sociat Securrry Rutincs
Be MEER dd dauccpéccccdgesesecesccesés 7, 14, 21, 23, 28
Notice of Proposed Rule Making (NPRM), 60 Fed.
Reg. 12,166 (proposed March 6, 1995)............. 21
65 Fed. Reg. 42,772 (2000) ...........cseceeeeeeees 7, 21
viii
TABLE OF AUTHORITIES - Continued
Page
65 Fed. Reg. 42,780 (2000) .........ccccccsccccccccces 7
GED cc cduvncccusesedegensebevestsneetescceee 31
FE GUPEI cect cpevcnccce covausedtbuccdsesaseuceuuets 31
Gs GPE ce vvesccictscdscdidvesnseceasetveceeeeent 31
OASI Disability Ins. Letter No. 39 (Pt. V of Dis-
ability Ins. State Manual) (Jan. 22, 1957).......... 31
Disability Ins. State Manual § 314 (Sept. 9, 1965) ..... 8
LecisLative History
Conference Rep. No. 89-682 (1965), reprinted in
GD GRA: SP i cockededcneasuecsécecceess 17
woos No. 89-404 (1965), reprinted in 1965
EY SE pdb caerecschdedelescuedbh obbndcns 17
STATEMENT OF THE CASE
Cleveland Walton, a college graduate and teacher,
was denied disability benefits, despite his continuing
psychiatric impairment, for the sole reason that he
returned to work (as a grocery store clerk), despite his
continuing impairment, within 12 months of his October
1994 onset date. Walton’s return to work occurred after
he applied for benefits and after the five-month waiting
period, but before his disability was adjudicated and
before 12 months had elapsed from the date he first
became disabled.
Walton was hospitalized with major depression,
recurrent with psychotic features, in October 1990 and
again in May 1994. Petition Appendix (“App.”) 55a. After
losing his job as a teacher in October 1994, Walton
attempted a series of jobs, but he was fired from each
after a brief work period. The Administrative Law Judge
(“ALJ”) therefore deemed them to be unsuccessful work
attempts. App. 53a. Walton was hospitalized a third time
in March 1995 and was diagnosed as suffering with para-
noid schizophrenia. App. 56a. At the time of both admin-
istrative hearings in July 1996 and June 1997, the ALJ
concluded that Walton had a “listing-level” psychiatric
impairment. App. 59a, 45a. However, because Walton had
worked as a grocery store clerk, beginning with part-time
work in May 1995, and because he earned more than the
substantial gainful activity (“SGA”) level of $500 in Octo-
ber 1995, the ALJ, after the second hearing, found that
Walton had not been prevented from engaging in SGA for
a continuous period of at least 12 months. The ALJ con-
cluded that Walton was not under a disability and conse-
quently was not entitled to benefits or a trial work
period. App. 44a, 45a.
The Appeals Council and the District Court upheld
the ALJ’s conclusions. App. 36a-38a; App. 15a-26a. On
appeal, the Court of Appeals for the Fourth Circuit
affirmed the district court’s holding that Walton had
returned to SGA in October 1995, but reversed the district
court’s holding that Walton was not under a disability
when he engaged in SGA within 12 months of his onset
date and before adjudication of his claim. The Fourth
Circuit also reversed the lower court’s holding that Wal-
ton was not entitled to a trial work period. Walton v.
Apfel, 235 F.3d 184 (4th Cir. 2000) (Luttig, J.); App. 2a, 7a.
+
SUMMARY OF THE ARGUMENT
Cleveland Walton is entitled to disability benefits and
a trial work period because he meets the statutory defini-
tion of disability and because, beginning in April 1995, he
met all the criteria for entitlement to disability benefits.
Because he was entitled to benefits as of April 1995, once
the five-month waiting period from his October 1994
onset date had elapsed, his return to work beginning in
late May 1995 and his return to substantial gainful activ-
ity in October 1995 should be covered by a trial work
period.
A person is disabled if he has an “inability to engage
in any substantial gainful activity by reason of any medi-
cally 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 express
language of the statutory definition of disability shows
that it is the impairment, not the inability to engage in
substantial gainful activity, which must last 12 months.
The language of the statute is clear and unambiguous and
therefore the Commissioner’s contrary interpretation is
not entitled to deference under Chevron, U.S.A., Inc. v.
Natural Resources Defense, 467 U.S. 837 (1984). The Fourth
Circuit’s interpretation of the disability definition not
only is supported by the plain language of the statute,
but is also consistent with the legislative history of the
Social Security Act, the regulatory scheme of Social Secu-
rity pertaining to disability, the rulings of other courts of
appeals and district courts which have considered the
question, and Congress’ frequently stated goal of encour-
aging disabled persons to try to return to work as early as
possible. From the inception of the disability program,
Congress has demonstrated its intention to encourage
disabled persons to try to work, despite continuing
severe impairments. This intent is reflected in the trial
work statute, which makes a trial work period available
from the first month of entitlement to benefits, and in the
Supplemental Security Income (“SSI”) special benefits
program, which allows reduced SSI benefits to be paid to
persons who, despite continuing severe impairment, are
engaged in SGA.
The Commissioner apparently concedes the point
that the definition of disability requires that the impair-
ment, not the inability to engage in substantial gainful
activity, must last 12 months. (Pet. Brief 23, 30). “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).” (Pet. Brief 23.) The Commissioner contends,
however, that the statute is silent, and therefore ambig-
uous, about “how severe the impairment must be during
that 12-month period. In other words, it does not speci-
fically address whether the impairment must persist with
such severity as to preclude all substantial gainful activ-
ity during the qualifying period —- much less foreclose the
Commissioner from construing the Act to embody such a
requirement.” (Pet. Brief 30.) The Commissioner asks that
this Court, instead of reading the statute as written, read
into the statute language that is not there and find ambi-
guity in a definition which is explicit in its terms. Under
basic rules of statutory construction and the Chevron line
of cases, this Court is bound by the language of the
statute where that language is clear and unambiguous
and cannot give deference to an agency’s interpretation
that is contrary to the clearly expressed intention of Con-
gress.
Under the statute, a person is entitled to disability
benefits, beginning with the first month after a five-
month waiting period, if he is insured, has not attained
retirement age, has filed an application, and is under a
disability. 42 U.S.C. § 423(a)(1). Cleveland Walton met all
these criteria: he was under a disability because he had
an impairment that was expected to last — and in fact did
last - more than 12 months and his i* pairment was of
such severity as to prevent SGA; he was also insured, was
under retirement age, and had filed an application. He
was therefore entitled to disability benefits for each
month beginning in April 1995, when the five-month
waiting period expired. Moreover, because Congress
made a trial work period available from the first month
an individual is entitled to benefits, 42 U.S.C. § 422(c)(3),
Walton was entitled to a trial work period to cover his
attempt to work beginning in late May 1995 and his
return to SGA beginning in October 1995.
Even if this Court were to conclude that the 12-month
duration requirement applies to the inability to engage in
SGA as well as the impairment, Walton would nonethe-
less be entitled to disability benefits and to a trial work
period. The expectancy language of the disability defini-
tion (“can be expected to last”) and the prospective stan-
dard required by the language of the entitlement statute
(“for each month beginning with the first month”) must be
given their full effect. Consequently, if prior to his return
to work in May 1995, he had a “disability” or an inability
to engage in SGA (as well as an impairment) which was
expected to last 12 months, then, at that time, he was
disabled. Because he also met all the other requirements
of entitlement, he was also entitled to disability benefits.
If he was entitled to disability benefits, then he was also
entitled to a trial work period to cover his return to work.
Because construction of the statutory language, the
legislative history of the statute, the administrative regu-
lations adopted pursuant to the statute, prior case law,
and sound policy all favor Walton’s position, the decision
of the Fourth Circuit should be upheld.
+
ARGUMENT
I. The Fourth Circuit Properly Concluded that It Is the
Impairment, Not the Inability to Engage in SGA,
Which Must Last 12 Months.
A. The Plain Language of the Statute Defining Dis-
ability Dictates that It Is the Impairment Which
Must Last 12 Months.
“Disability” is defined by the Social Security Act and
regulations as:
inability to engage in any substantial gainful
activity by reason of any medically determin-
able 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). As the Fourth Circuit concluded,
it is evident from the plain language of the statute that
the phrase “which has lasted or can be expected to last
for a continuous period of not less than 12 months” refers
to the impairment, not to the inability to engage in SGA.
App. 8a. The Fourth Circuit concluded: “The statutory
language is unambiguous, requires no agency interpreta-
tion, and leaves no doubt that neither a duration require-
ment for the inability to engage in substantial gainful
activity nor a requirement that the benefits have been
‘awarded’ or adjudicated, exists.” App. 7a.
In reaching this conclusion, the Fourth Circuit noted:
In addition to the facial clarity of the language,
the grammatical structure and logic of the stat-
ute further compel the conclusion that the
clause, ‘which can be expected to result in death
or which has lasted or can be expected to last for
7
a continuous period of not less than 12 months,’
refers to the impairment, not to the inability to
engage in SGA; the clause manifestly does not
modify ‘substantial gainful activity’.
App. 7a-8a. As the court properly concluded, it would be
completely illogical to conclude that the inability to
engage in substantial gainful activity could result in
death. Yet the Commissioner has offered precisely such a
reading of the statute in its policy as initially set out in
Social Security Ruling (“SSR”) 82-52: “It is the inability to
engage in SGA because of the impairment that must last
the required 12-month period.” SSR 82-52. Such a con-
struction of the language is absurd, as the Fourth Circuit
properly, and logically, concluded.
The Commissioner now concedes that, in fact, the
statutory 12-month duration requirement does apply to
the impairment, not to the inability to engage in substan-
tial gainful activity. (Pet. Brief 23, 30.) “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).” (Pet. Brief 23.) The Commissioner contends,
however, that the statute
does not speak directly to whether the impair-
ment must persist during those 12 months at
1 The Commissioner also relies heavily upon new final
regulations found at 65 Fed. Reg. 42,772 (2000). These
regulations became effective August 10, 2000 and are
inapplicable to this case. Moreover, the final regulations make
clear that they are merely a continuation of the frequently
rejected policy originally proffered in SSR 82-52: “[T]he
revisions we are making clarify, but do not change, our
interpretation set forth in SSR 82-52.” 65 Fed. Reg. 42,780 (2000).
any particular level of severity — in particular,
whether it must be sufficiently 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.
Id.?
The Commissioner’s argument apparently is that
Congress did not mean what it said and that additional
language should be read into the statute so that the
statute can be read in accordance with the Commis-
sioner’s longstanding policy. The Commissioner’s argu-
ment is contrary to the most basic rule of statutory
construction. As this Court said in Connecticut Nat'l Bank
v. Germain, 503 U.S. 249, 253-54 (1992) (citations omitted):
“We have stated time and again that the courts must
presume that a legislature says in a statute what it means
and means in a statute what it says there . . . When the
words of a statute are unambiguous, then, this first canon
is also the last: ‘judicial inquiry is complete.’” “[W]hen
“the statute’s language is plain, ‘the sole function of the
courts’ ” — at least where the disposition required by the
text is not absurd —- ‘is to enforce it according to its
2 The Commissioner makes much of the “by reason of”
language of the disability definition, suggesting that it
demonstrates an “inextricable link” between the impairment
and the resulting inability to work and that each must last 12
months. (Pet. Brief 16, 21, 23, 27, 30.) In fact, Social Security’s
own evaluation guide demonstrates that the “by reason of”
linkage is intended to show that the inability to engage in SGA
must result primarily from a medical impairment, not from
economic conditions, hiring practices, etc. Disability Ins. State
Manual § 314 (Sept. 9, 1965). The “by reason of” language
implies nothing about duration.
terms.’ ” Hartford Underwriters Ins. Co. v. Union Planters
Bank, N.A., 530 U.S. 1, 6 (2000) (citations omitted) (con-
cluding that because the most natural reading of the
bankruptcy statute extended recovery rights only to the
trustee, petitioner’s burden of persuading the court that
the section should be read to extend rights to others was
“exceptionally heavy”). “In analyzing a statute, we begin
by examining the text, not by ‘psychoanalyzing those
who enacted it’.” Carter v. United States, 530 U.S. 255, 271
(2000) (citations omitted). Accord Duncan v. Walker, 121
S.Ct. 2120, 2124 (2001) (“Our task is to construe what
Congress has enacted.”). In the case at bar, the literal
reading of the statute produces a result that is not only
not absurd, but is fully consistent with the intentions of
the drafters. The petitioner has not and cannot meet her
“exceptionally heavy” burden (Hartford Underwriters, 530
U.S. at 9) to persuade the court to construe the language
to extend the 12-month requirement to the inability to
engage in SGA.3
* The Commissioner attempts to couch this basic and
indisputable rule of statutory construction into the guise of a
maxim “expressio unius est exclusio alterius,” which neither the
Court of Appeals nor Walton ever asserted, and then to
disparage that maxim as being inapplicable in the
administrative law context. (Pet. Brief 36-37.) According to
Black’s Law Dictionary, “expressio unius est exclusio alterius”
is a maxim of statutory interpretation “which means that the
expression of one thing is the exclusion of another.” This case is
unlike those cases offered by the Commissioner to show the
questionable reliability of the maxim. This is not a case where
the recitation of certain prohibitions is said to imply that other
activities must therefore be allowed, Texas Rural Legal Aid, Inc. v.
Legal Services Corp., 940 F.2d 685 (D.C. Cir. 1991), or where the
delineation of two methods of rebuttal arguably excludes other
10
In drafting the definition of “disability,” Congress
was defining a core concept of the Social Security Act. It
surely did not take lightly the responsibility to carefully
define this key term. Congress could easily have drafted
the definition to say what the Commissioner would like it
to say, by simply stating that disability is:
the inability to engage in any substantial gainful
activity which has lasted or can be expected to
last for a continuous period of not less than 12
months and which is caused by 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.
That Congress easily could have drafted the disability
definition in such a way but did not is not an indication
that the statute is ambiguous, but rather is clear evidence
that Congress meant what it says in the statute — that is,
that the impairment must be severe and it must be
expected to last 12 months or to result in death.
unspecified rebuttal methods, Pauley v. Bethenergy Mines, Inc.,
501 U.S. 680, 703-4 (1991), or where the direction of something in
one provision and its absence in another is used to imply the
intent to negate it in the second context, as in Cheney R.R. Co. v.
ICC, 902 F.2d 66, 68 (D.C. Cir. 1990). To the extent the expressio
unius maxim is relevant at all, its force should depend on the
context and on whether, considering the structure of the statute
and its legislative history, one can be confident that the
draftsman in expressing one thing would likely have considered
the alternatives which are arguably precluded. Shook v. District
of Columbia Fin. Responsibility and Mgmt. Assistance Auth., 132
F.3d 775, 782 (D.C. Cir. 1998).
11
The Commissioner suggests that the court of appeals’
analysis ignores the text of 42 U.S.C. § 423(d)(2)(A),
which requires that the impairment be of such severity as
to render the person unable to perform any substantial
gainful activity. (Pet. Brief 16, 24, 31.) Petitioner’s argu-
ment is without merit. Walton has never denied the exis-
tence of a severity requirement, and there is no basis for
any suggestion that he does not satisfy it. In fact, the
regulation defining the “Listing of Impairments” explic-
itly states that the “Listing of Impairments describes, for
each of the major body systems, impairments which are
considered severe enough to prevent a person from doing
any gainful activity.” 20 CFR § 404.1525(a) (emphasis
added). By definition, a listing-level impairment, which
Walton clearly has, meets the severity requirement set out
in § 423(d)(2)(A). Moreover, because that section does not
link the required severity to the 12-month duration
requirement, the argumenf does nothing to advance the
Commissioner’s position.
The Commissioner argues that because the statute
says nothing about the duration of an applicant’s ability
to engage in substantial gainful activity, the statute is
ambiguous on that point, leaving a “gap” for the admin-
istering agency to fill. (Pet. Brief 23, 30). Although a
statute’s failure to address an issue may in some circum-
stances reflect an ambiguity or gap, that is not the case
here. This statute states very clearly that disability means
two things: an impairment satisfying the durational
requirement, and a resulting inability to engage in sub-
stantial gainful activity. A person satisfying this defini-
tion, as well as the other statutory eligibility
requirements, is entitled to benefits. A statute that says
12
that a person is entitled to something if he possesses
specific defining characteristics is not “silent” about
whether additional substantive requirements must be
met; rather, it forecloses the possibility that such addi-
tional requirements may be imposed. As this Court has
put it, “As a rule, ‘a definition which declares what a
term ‘means’ excludes any meaning that is not stated.’ ”
Colautti v. Franklin, 439 U.S. 379, 392-93 n.10 (1979) (cita-
tion omitted); see also Meese v. Keene, 481 U.S. 465, 484
(1987) (“It is axiomatic that the statutory definition of a
term excludes unstated meanings of that term.”).
The government's extrastatutory addition of a dura-
tional requirement for the inability to engage in SGA does
not simply fill a hole in the statutory language; it directly
contradicts the statute. The statute says that if a person
satisfies criteria A and B, he or she is disabled. The
government's “interpretation” says that such a person is
not disabled unless he or she satisfies an additional crite-
rion, C. The government would thus deny benefits to an
applicant who met the statutory criteria that entitled him
to receive them, contrary to the plain meaning of the
statute.
The statute must be read as it is written, and the
agency’s attempt to read additional language into the
statute is not entitled to deference. In Chevron, U.S.A., Inc.
v. Natural Resources Defense, this Court clearly stated:
“First, always, is the question whether Congress has
directly spoken to the precise question at issue. If the
intent of Congress is clear, that is the end of the matter;
for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” 467 U.S.
13
837, 842-43 (1984). Only if “the statute is silent or ambig-
uous with respect to the specific issue” must the court
look at whether the agency’s answer is based upon a
“permissible construction of the statute.” Id. The Court of
Appeals properly found that the agency interpretation of
the Act was not appropriate in this case because the
language of the statute “is clear and unambiguous. More-
over, even if interpretation were required, the Commis-
sioner’s interpretation - which assumes either a duration
period or adjudication requirement and does violence to
the grammatical structure of the statute - conflicts with
the very statute it purports to elucidate. We are bound to
reject such constructions.” App. 6a-7a.
This Court has noted that “the courts are the final
authorities on issues of statutory construction. They must
reject administrative constructions of the statute, whether
reached by adjudication or by rule-making, that are
inconsistent with the statutory mandate or that frustrate
the policy Congress sought to implement.” FEC v. Demo-
cratic Senatorial Campaign Comm., 454 U.S. 27, 32 (1981).
This Court has also recognized that “[e]ven contempora-
neous and longstanding agency interpretations must fall
to the extent they conflict with statutory language.” Pub-
lic Employees Retirement System v. Betts, 492 U.S. 158, 171
(1989). The Fourth Circuit properly concluded that the
Commissioner’s construction of the statute was inconsis-
tent with the plain language of the statute. The Commis-
sioner’s interpretation, therefore, is entitled to no
deference.
Other courts, construing the statutory language at
issue, also have determined that the statutory language is
so clear that the agency’s interpretation is not entitled to
14
deference. See, e.g., Salamalekis v. Comm'r of Soc. Security,
221 F.3d 828 (6th Cir. 2000); Hunter v. Department of Health
& Human Services, 851 F.Supp. 75, 77 (E.D.N.Y. 1994) (“On
its face, $.S.R. 82-52 contradicts the plain language of the
Social Security Act’s definition of ‘disability.’ ”); Fabel v.
Shalala, 891 F.Supp. 202, 206 (D.N.J. 1995) (“Despite this
level of deference, the Court finds the SSR 82-52 is plainly
erroneous and inconsistent with the Act.”); Walker v. Sec’y
of Health & Human Services, 943 F.2d 1257, 1260 (10th Cir.
1991) (rejected agency’s policy as “inconsistent with the
language of the Act and, therefore . . . entitled to no
deference.”).
Congress has explicitly defined disability in such a
way that the 12 month duration requirement applies only
to the impairment. It is “beyond the permissible limits of
administrative interpretation,” Social Security Board v.
Nierotko, 327 U.S. 358, 369-70 (1946), for the Commis-
sioner to construe the Act to add a requirement that the
inability to perform SGA also last 12 months. (Pet. Brief
30.) Congress cannot be said to have so inartfully drafted
its one-sentence definition of disability. Instead, this
Court must give effect to the statute as written, and, as
written, the 12 month duration requirement applies to the
impairment, not to the inability to engage in SGA.
B. This Interpretation of the Statute Is Consistent
With the Legislative History of the Act.
Because the statute’s language is clear and plainly
forecloses the governmerit’s position, there is no need to
resort to legislative history in this case. As this Court has
repeatedly emphasized, while “[llegislative history can
15
be a legitimate guide to a statutory purpose obscured by
ambiguity,” statutory language “must ordinarily be
regarded as conclusive.” Burlington Northern R. Co. v.
Oklahoma Tax Comm'n, 481 U.S. 454, 461 (1987) (citations
and internal quotations omitted). Thus, “there is no need
to refer to the legislative history where the statutory
language is clear. ‘The plain words and meaning of a
statute cannot be overcome by a legislative history which,
through strained processes of deduction from events of
wholly ambiguous significance, may furnish dubious
bases for inference in every direction.’ ” Ex parte Collett,
337 U.S. 55, 61 (1949) (citation omitted). Here, where the
statutory language is precise and unambiguous, and the
legislative history relied on by the government consists
primarily of what appear to be imprecise descriptions of
the effect of the statute in committee reports (many of
which postdate enactment of the relevant language), the
Court should not be deflected from enforcing the statute
as enacted.
In any event, the plain language of the statutory
definition of disability is consistent with the legislative
history surrounding the extension of Social Security to
cover disabled workers in 1956. As the Commissioner’s
brief points out, the Social Security Act did not initially
cover disabled workers but was amended in 1956 to add a
system of disability benefits. Initially, disability was
defined as “the 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 to be of long-continued and indefinite
duration.” 42 U.S.C. § 423(c)(2) (1958). Congress added
disability benefits and included a “disability freeze” to
16
exclude periods of disability for purposes of determining
insured status and calculating retirement benefits.
Congress’ intent as it defined disability for the first
time is instructive:
There are two aspects of disability evaluation:
(1) There must be a medically determinable
impairment of serious proportions which is
expected to be of long-continued and indefinite
duration or to result in death, and (2) there must
be a present inability to engage in substantial
gainful work by reason of such impairment. .. .
Disability must have lasted for 6 months before
it may be considered. This provision is intended
to exclude from consideration temporary condi-
tions which terminate within 6 months.
S.Rep. No. 83-1987 (1954), reprinted in 1954 U.S.C.C.A.N.
3710, 3730 (emphases added). It is clear from this state-
ment that Congress did not intend to cover temporary
impairments which might medically improve. The Senate
Report went on to make even more explicit that it was the
duration of the impairment, not the duration of the
inability to engage in SGA, that concerned Congress:
In prescribing that the freeze apply only in the
case of impairments “which can be expected to
be of long-continued and indefinite duration”
your committee seeks to assure that only long-
lasting impairments are covered. This provision
is not inconsistent with efforts toward reha-
bilitation since it refers only to the duration of the
impairment and does not require a prediction of
continued inability to work.
Id. at 3730 (emphases added). This statement reflects Con-
gress’ concern from the very beginning of the disability
17
program that disabled persons be encouraged to return to
work as early as possible. It is also evident that the
definition of disability was intended to rule out short-
term impairments whose symptoms might improve within
a short period of time, not to rule out the truly disabled
who, by true grit, attempt to work despite continuing
severe impairment.
Significantly, when the disability definition was
revised in 1965 to replace the “long-continued and indefi-
nite duration” requirement with the current language
requiring that the impairment “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,” this change
was considered to be a liberalization of the disability
definition which would add approximately 60,000 persons
to the disability rolls. S.Rep. No. 89-404, reprinted in 1965
U.S.C.C.A.N. 1943, 1945. Once again, it was clear that
Congress was concerned about excluding short-term
impairments: “The effect of the provision the committee is
recommending is to provide disability benefits for a totally
disabled worker even though his condition may be
expected to improve after a year.” Id. at 2039. The Confer-
ence Report No. 89-682 makes this explicit: “Under Senate
amendment No. 312, the impairment must be one 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.” Id. at 2249 (emphasis added).*
4 Petitioner contends that Congress should be deemed to
have ratified the Commissioner’s policy by amending the Act
over the years without changing the Commissioner’s
18
It is clear from the Congressional reports when the
disability program was first implemented and when the
construction. (Pet. Brief 33, 36, 38.) The Commissioner cites
Lorillard v. Pons, 434 U.S. 575 (1978), in support of its position.
However, Lorillard and subsequent cases of this Court, noted
that Congress is presumed to be aware not only of the
administrative interpretation of the siatute but also the judicial
interpretation of the statute (“we cannot assume .. . that
Congress was unaware that courts had uniformly afforded jury
trials under the FLSA.” Id. at 585.) Similarly, this Court in
Bragdon v. Abbott was persuaded by the uniformity of the
administrative and judicial precedent which had consistently
interpreted the statutory provision at issue in that case. 524 U.S.
624, 645 (1998). See also, Fogerty v. Fantasy, Inc., 510 U.S. 517
(1994); Williams v. Taylor, 529 U.S. 420 (2000). The
Commissioner’s policy, in contrast, has been sharply at odds
with judicial interpretations of the statutory provisions.
Consequently, any failure to change the statute could just as
easily demonstrate Congress’ decision to ratify the courts’
interpretation of the existing statutory language. Moreover, this
Court has, on many occasions, expressed its skepticism
regarding supposed congressional acquiescence to the agency’s
position. “Although we have recognized congressional
acquiescence to administrative interpretations of a statute in
some situations, we have done so with extreme care . . . Because
‘subsequent history is less illuminating than the
contemporaneous evidence,’ respondents face a difficult task in
overcoming the plain text and import of” the statute. Solid Waste
Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S.
159, 169-70 (2001) (citation omitted). “Absent . . . overwhelming
evidence of acquiescence, we are loath to replace the plain text
and original understanding of a statute with an amended
agency interpretation.” Id. at 170, n.5. See also Alexander v.
Sandovai, 121 §$.Ct. 1511, 1523 (2001) (congressional
acquiescence “as a general matter . . . deserves little weight
in the interpretive process.” (citation omitted)). The
Commissioner has fallen far short of establishing overwhelming
evidence of Congressional acquiescence in this case.
19
definition of disability was amended in 1965 that Con-
gress’ concern has always been that persons with truly
short-term impairments, from which they may quickly
recover, not be covered by the Act, but that persons with
long-term serious impairments should be covered and
should be encouraged to return to work as soon as possi-
ble. The Commissioner suggests that the Court of
Appeals offered “no plausible reason why Congress
would have insisted that the underlying impairment last
for 12 months but not the claimant's inability to work ‘by
reason of’ that impairment.” (Pet. Brief 29.)5 To the con-
trary, that reason was explicitly stated by Congress when
the disability program was first initiated. Congress did
not want to cover persons with impairments from which
they would quickly recover, but Congress did want to
encourage disabled persons to try to return to work as
early as possible. Congress accommodated these compet-
ing concerns — to restrict coverage and to encourage the
disabled to try to work — by requiring that the impairment
be expected to last at least 12 months, but not requiring
that the inability to engage in SGA last 12 months.
> The Commissioner would also have Walton identify a
specific provision in the Act that expressly states that there is no
duration requirement for the inability to engage in SGA or a
provision which states that the impairment need not persist at a
disabling level of severity for the 12 month period. Id. at 29.
Such a directive is absurd because it essentially asks Walton to
prove the negative. Congress cannot be expected to draft
legislation to explicitly state what it did not intend. The
language of the statute expresses what Congress did intend and
that language must be accorded full meaning.
20
Congress’ judgment is expressed unambiguously in the
statutory language and in the legislative history, and
must not be disturbed by this Court simply because the
Commissioner’s policy is at variance with Congressional
purpose.
C. The Separation of the Duration Requirement
(Applicable Only to the Impairment) and the
Severity Requirement Is Consistent with Social
Security’s Own Regulatory Scheme.
Other Social Security regulations that further define
the disability statute confirm that it is the impairment,
not the inability to engage in SGA, which must last 12
months.
Unless your impairment is expected to result in
death, it must have lasted or must be expected
to last for a continuous period of at least 12
months. We call this the duration requirement.
20 CFR § 404.1509; 20 CFR § 416.909 (emphases added).
This is quite explicit language, clearly linking the 12-
month requirement to the impairment, not to the inability
to engage in SGA.
Moreover, the regulation describing the purpose of
the Listing of Impairments expressly distinguishes
between the severity of an impairment and its duration:
The Listing of Impairments describes, for each
of the major body systems, impairments which
are considered severe enough to prevent a per-
son from doing any gainful activity. Most of the
listed impairments are permanent or expected to
result in death, or a specific statement of dura-
tion is made. For all others, the evidence must
21
show that the impairment has lasted or is
expected to last for a continuous period of at
least 12 months.
20 CFR § 404.1525(a). The distinction between the sever-
ity and duration requirements is also reflected in 20 CFR
§ 404.1520(a), regarding the evaluation of disability in
general, which states:
Your impairment(s) must be severe and meet the
duration requirement before we can find you to
be disabled.
The only regulations that attempt to show that the
inability to engage in SGA must be expected to last 12
months are the new 2000 regulations, based upon S3R
82-52 and a 1995 Notice of Proposed Rulemaking, 60 Fed.
Reg. 12,166 (1995), which did not go into effect until
August 2000 (while this and other litigation was pend-
ing). 65 Fed. Reg. 42,772 (2000). The new regulations are
contrary to the express language of the statute, contradict
various pre-existing and co-existing regulations, and
therefore are entitled to no deference.
D. Most Courts Which Have Interpreted the Lan-
guage of the Statute Have Concluded that the
12-Month Duration Requirement Applies to the
Impairment, Not the Inability to Perform SGA.
Most of the courts which have interpreted the lan-
guage of the disability definition have agreed with the
Fourth Circuit’s conclusion that the 12-month duration
requirement applies to the impairment, not the inability
to perform SGA. The Massachusetts District Court in
White v. Finch carefully construed the language of the
22
disability statute (noting the grammatical structure and
the common sense logical interpretation of the language),
the legislative history, the administrative regulations,
prior case law, and sound policy considerations (includ-
ing encouraging work) to conclude that the impairment,
not the inability to work, must last 12 months. 311
F.Supp. 307 (D.Mass. 1970).
The Fifth Circuit ruled on the issue in Singletary v.
Bowen, holding that the Commissioner’s position
evidences a misunderstanding of the duration
requirement. It confuses the duration require-
ment, which applies only to the impairment,
with the severity requirement, which deter-
mines whether the impairment prevents the
claimant from working . . . The statute quite
clearly requires that it is the impairment only
which must last for a continuous period . . . The
statute . . . does not require that a claimant be
unable to engage in work during the entire 12
month period.
798 F.2d 818, 821 (5th Cir. 1986). The Seventh Circuit also
rejected the government's view:
When an individual has been disabled for five
consecutive months and suffers from an impair-
ment which can be expected to last for a contin-
uous period of twelve months, that person is
entitled to disability benefits . . . The Act
attempts to strike a balance between paying
benefits to people who are disabled and encour-
aging them to return to work as soon as physi-
cally possible.
McDonald v. Bowen, 818 F.2d 559, 563-64 (7th Cir. 1986).
23
Likewise, the Sixth Circuit in Salamalekis, 221 F.3d at
833, rejected SSR 82-52 as inconsistent with the plain
language of the Act.
Salamalekis had not recovered completely from
his impairment when he returned to work
[within 12 months of onset] . . . As the agency
itself found, Salamalekis’s impairment was
expected to last for 12 months as of March 2.
This finding is not invalidated by Salamalekis’s
effort to return to work.
See also Jenkins v. Heckler, 783 F.Supp. 998, 1001 (D.S.C.
1992) (“the Secretary’s premise that the plaintiff must be
unable to work for twelve continuous months in order to
be adjudicated ‘disabled’ is erroneous.”); Hassan v. Apfel,
2000 U.S. Dist. LEXIS 16953 (S.D.N.Y. 2000) (holding that
the ALJ erroneously found that claimant was not disabled
because she had returned to work within 12 months of
onset).
Significantly, the Commissioner has been able to
muster only four cases that she says support her position.
(Pet. Brief at 28.) Of these, surprisingly, one is McDonald
v. Bowen, which clearly holds that a claimant is entitled to
disability benefits and to a trial work period despite her
return to work within 12 months of the onset of her
impairment. 818 F.2d at 564. Moreover, Estep v. Rich-
ardson, is inapposite, because it only concluded that the
claimant's impairment had not lasted 12 months. 459 F.2d
1015 (4th Cir. 1972). Estep is not a case, such as Walton’s,
where a person returned to work within 12 months of
onset despite a continuing severe impairment. In sharp
contrast to the Estep facts, it is undisputed that Walton’s
impairment continued at listing-level severity at the time
24
of his second hearing in June 1997, nearly three years
after onset.
The Commissioner’s two remaining cases, Alexander
v. Richardson, 451 F.2d 1185 (10th Cir. 1971), cert. denied
407 U.S. 911 (1972), and Titus v. Sullivan, 4 F.3d 590 (8th
Cir. 1993), are unpersuasive. In determining that inability
to engage in SGA and the impairment must both last 12
months, these courts blurred the distinction between the
duration requirement and the severity requirement that is
set out in the statutory language, the legislative history,
and the regulations. The Alexander court reasoned that the
“liJnability 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.”
451 F.2d at 1186. While the statute does require that the
severity requirement (inability to engage in SGA) and the
duration requirement exist at the same time, it does not
require that they coexist for 12 months. In addition, the
facts of Alexander and Titus suggest that no consideration
was given to the availability of a trial work period, or to
the expectancy language (see infra pp. 29-30) and the need
to consider the entitlement criteria prospectively from the
point of application and to award benefits - and a trial
work period - from the first month all eligibility criteria
are met (see infra pp. 31-33).
In addition, Alexander and Titus have been effectively,
though not explicitly, overruled. The Tenth Circuit in
Walker v. Sec’y of Health & Human Services, 943 F.2d 1257
(10th Cir. 1991), and the Eighth Circuit in Newton v.
Chater, 92 F.3d 688 (8th Cir. 1996), construed the statutory
language to provide that benefits are payable and a trial
work period is available if an impairment was expected
25
to last at least 12 months, even if the return to work
occurred within 12 months of onset. “[A] fair reading of
the Act indicates that an individual who suffers from an
impairment that has lasted, or is expected to last, twelve
months is entitled to disability insurance benefits, as well
as a trial work period, after waiting five months.” Walker,
943 F.2d at 1260; accord, Newton, 92 F.3d at 694 (“[U]nder
the statute, a claimant need not have had a disability for
twelve consecutive months before he may test his ability
to work.”). Admittedly, in Walker and Newton, the claim-
ants’ return to work actually occurred more than 12
months after onset. Nonetheless, the Walker and Newton
courts’ construction of the statutory language accords
with the rulings of three other courts of appeals and
many district courts in finding that benefits are payable
and a trial work period is available despite a claimant's
return to work within 12 months of onset. See infra pp.
37-40.
E. Policy Considerations Weigh in Favor of Wal-
ton’s Position that the 12-Month Duration
Requirement Applies to the Impairment, Not to
the Inability to Perform Substantial Gainful
Activity.
Walton’s position that the 12-month duration require-
ment applies to the impairment, not the inability to
engage in SGA, properly accommodates the competing
policies of excluding those who are not truly disabled
and encouraging those who are disabled to attempt to
work. The Commissioner’s suggestion notwithstanding,
Pet. Brief 17, Walton’s position is fully consistent with
Congress’ deliberate decision not to provide benefits in
26
cases of short-term, temporary disability. The dual
requirements that the impairment be expected to last 12
months and that it be of such severity as to preclude
SGA, in combination, eliminate short-term, transient dis-
abilities from coverage. Some impairments, although of
long-term duration - e.g., controlled hypertension — are
never so severe as to prevent SGA and therefore do not
meet the severity requirement, while other impairments,
although of substantial severity at the outset, would
never be expected to last 12 months and consequently do
not meet the duration requirement. In either instance, the
applicant would be denied disability benefits. In sharp
contrast, Walton’s listing-level schizophrenia is an
impairment which satisfies both criteria: by definition, it
is of such severity as to prevent SGA, and it is of docu-
mented long-term duration.
Encouraging disabled claimants, like Cleveland Wal-
ton, to try to work, despite continuing severe impair-
ment, not only is good public policy, but also implements
the explicit language of the statute and clearly stated
Congressional goals.
Il. A Claimant is Entitled to Disability Benefits and to a
Trial Work Period If He Meets All Other Requirements
of Entitlement and the Five-Month Waiting Period Has
Elapsed, Even Though He Returns to Substantial
Gainful Activity Within 12 Months of Onset.
A. According to the Plain Language of the Statute
and te gem Regulations, an Individual Is
Entitled to Benefits and a Trial Work Period If
He Returns to SGA Within 12 Months of Onset.
A trial work period “is a period during which you
may test your ability to work and still be considered
27
disabled.” 20 CFR § 404.1592(a); 42 U.S.C. § 422(c)(2). “A
period of trial work for any individual shall begin with the
month in which he becomes entitled to disability insurance
benefits[.]” 42 U.S.C. § 422(c)(3) (emphasis added); 20
CFR § 404.1592(e).
The requirements for entitlement to disability bene-
fits are set out in 42 U.S.C. § 423(a)(1) (“the entitlement
statute”):
Every individual who -
. (A) is insured for disability insurance ben-
Pa
(B) has not attained retirement age... ,
_ (C)_ has filed an application for disability
insurance benefits, and
(D) is under a disability (as defined in sub-
section (d) of this section),
shall be entitled to a disability insurance benefit
(i) for each month beginning with the first month
after his waiting period (as defined in subsection
(c)(2) of this section) in which he becomes so
entitled to such insurance benefits[.]
42 U.S.C. § 423(a)(1) (emphasis added); see also, 20 CFR
§ 404.315(a); 20 CFR § 404.320(b).
The statute and the regulations® make clear that a
claimant is “entitled” to disability benefits beginning
© The new regulations which the Commissioner presents in
support of her position were not effective until August 2000.
Moreover, they conflict with the express language of the statute
and with other pre-existing regulations and are therefore not
entitled to deference.
28
with “the first month covered by your application in
which you meet all the other requirements for entitle-
ment.” 20 CFR § 404.316(a) (emphasis added); 20 CFR
§ 404.321(a).
There is no requirement that a claimant wait 12
months before becoming “entitled” to benefits. “Congress
could have easily required, as does S.S.R. 82-52, a waiting
period of a year before awarding any benefits. But it is
evident from an analysis of the statute that, as a matter of
policy, it chose not to do so.” Hunter, 851 F.Supp. at 77.
Based upon the plain language of the statute and
regulations, Walton was “entitled” to disability benefits,
and consequently to a trial work period, beginning in
April 1995, before he began his attempt to work at Food
Lion, because at that time he met all the requirements for
entitlement status: he was insured; he had not reached
retirement age; he had applied; and he had been disabled
for five consecutive months. He had a disability as
defined by 42 U.S.C. § 423(d)(1)(A) because he had a
severe mental impairment which was expected to last for
a continuous period of at least 12 months.” Because Wal-
ton met all the criteria in April 1995, he was “entitled” to
disability benefits beginning that month; and therefore,
according to the plain language of the statute and sup-
portive regulations, he was also entitled, at that time, to a
trial work period.
7 A medical expert concluded prior to Walton’s first
hearing that Walton’s impairment had lasted or could be
expected to last at least 12 months. Dist. Ct. Record 261.
29
The Commissioner effectively concedes that if the
duration requirement does not apply to the inability to
engage in SGA, the Fourth Circuit’s ruling on the trial
work period must be sustained as well, since the princi-
pal basis for the government's attack on the trial work
period ruling is its argument that the Fourth Circuit's
construction of the duration requirement was erroneous.
(Pet. Brief 43.) But even if the government were correct
on the duration issue, the availability of a trial work
period under the facts of this case is not dependent upon
a finding that the 12-month duration requirement applies
only to the impairment. Rather, the expectancy language
of the disability definition and the prospective perspec-
tive required by the entitlement statute, in combination,
assure that a trial work period is available in this case
even if the 12-month duration requirement is found to
apply to the inability to engage in SGA.
The expectancy language of the disability definition
must be given full effect. “We are not at liberty to con-
strue any statute so as to deny effect to any part of its
language. It is a cardinal rule of statutory construction
that significance and effect shall, if possible, be accorded
to every word.” Market Co. v. Hoffman, 101 U.S. 112, 115-6
(1879). To ignore the “can be expected to last” language
leads to a result that is both contrary to the language of
the statute and regulations, and patently unfair and arbi-
trary on its face. The Commissioner notes that the Agency
could decide a claim within 12 months of onset and apply
the “can be expected to last” language to approve bene-
fits. (Pet. Brief 48-49.) The Commissioner apparently con-
cedes that benefits paid based upon an expectancy could
not be recouped even if the person returned to work
30
within 12 months of onset. Indeed, the Commissioner
must concede this point, for to do otherwise would effec-
tively eliminate the “can be expected to last” provision
from the statute and replace the five-month waiting
period with a 12-month waiting period, contradicting the
explicit statutory language and the expressed intention of
Congress.®
8 The Commissioner’s concession that benefits paid based
upon an expectancy cannot be recouped even if the person
returns to SGA within 12 months of onset is consistent with case
law. The Sixth Circuit considered this problem in Sierakowski v.
Weinberger, 504 F.2d 831 (6th Cir. 1974), where a claimant, who
had been approved for disability benefits based upon the
expectation that his impairment would last more than 12
months, returned to work within 12 months of his onset date.
The Appeals Council concluded that he was never entitled to
benefits because he had returned to work within 12 months of
onset. The Sixth Circuit, however, held that Sierakowski's
return to work did not oblige him to repay the benefits he had
received. “The result reached by the Secretary and by the
District Court is to read into the statute a provision for the
conditional payment of benefits, repayable where the expected
duration does not develop . . . We find nothing in the statutory
language to support such a view, and much in the legislative
history to refute it. The statute plainly says that it permits
benefits where the inability “can be expected to last for a
continuous period of not less than twelve months.” We conclude
that by the use of the cited language the Congress established a
prospective standard whereas the Secretary urges one governed
by hindsight. . . . We recognize that the construction urged by
the Secretary results perhaps in more certainty and is thus easier
of application, but this does not, in our view, justify a departure
from Congressional intent. Furthermore, that construction tends
to penalize good faith and diligence. It takes little imagination
to conclude that a claimant less motivated than plaintiff here
would be sorely tempted to sit out the full twelve months if he
knew that the law imposed such a forfeiture for an earlier return
31
The language of the entitlement statute requires that
a prospective perspective be used from the date of applica-
tion to assess whether all five prerequisites are met. The
Statute dictates this result by stating that benefits must be
payable from the first month that all requirements are
met, including wassage of the five-month waiting period.?
The courts have also recognized this prospective stan-
dard. “Although the requirement of a twelve month con-
tinuous disability is ‘forward-looking and is not to be
nullified by hindsight,’ it is evident that it is forward-
looking from the point an application is filed.” Nappa v. Sec’y
of U.S. DHHS, 731 F.Supp. 579, 585 (E.D.N.Y. 1990)
(emphasis added). See also Salamalekis, 221 F.3d at 832;
Hassan v. Apfel, 2000 U.S. Dist. LEXIS 16953 (S.D.N.Y.
2000); Acquiescence Ruling (“AR”) 92-6(10), AR 98-1(8),
AR 00-5(6) (to establish eligibility for Title II benefits and
a trial work period, claimant must establish that “at the
to gainful activity.” Id. at 833-35. See also Kendrick v. Califano, 460
F.Supp. 561 (E.D. Va. 1978).
° Even Social Security’s early guidelines recognized this
prospective standard. Noting that the long-continued and
indefinite requirement refers only to the expected duration of
the impairment when viewed as of the application date, the
agency stated that where the medical evidence initially
submitted establishes a condition which precludes SGA and
which is expected to be of long-continued and indefinite
duration as of the application date, a report that the claimant
later recovered or returned to work after the application “would
not be deemed to relate back and reflect on the individual’s
condition on the application date.” OASI Disability Ins. Letter
- Avg at 1, 4 (Pt. V of the Disability Ins. State Manual) (Jan. 22,
32
time he/she returned to work and thereafter, the impair-
ment was still expected to last for at least 12 consecutive
months from the date of onset”).
When Walton filed his application, and when the
five-month waiting period expired, he had an impairment
-and an inability to engage in SGA - which was expected
to last 12 months. Therefore, he was entitled to disability
benefits and to a trial work period once his five-month
waiting period expired. To consider the requirements in
hindsight after the 12 months have passed is contrary to
the statute because it fails to award benefits in the first
month in which all the statutory requirements are satis-
fied and in each successive month thereafter. Moreover, it
reads into the statute a 12-month waiting period, which
Congress neither imposed nor intended.
Even though the Commissioner’s policy apparently
allows a claimant already approved for benefits to retain
those benefits if he returns to work within 12 months of
onset, the policy is nonetheless unfair and arbitrary with
respect to those claimants, like Walton, whose disability
is not finally adjudicated within 12 months of onset. They
are treated differently for the sole reason that Social
Security did not adjudicate their case in a timely manner.
As the Fourth Circuit noted, neither § 423(a)(1) nor
§ 423(d) mentions adjudication as a prerequisite to dis-
ability or entitlement to disability benefits. App. 13a.
Similarly, the Sixth Circuit in Salamalekis refused to make
the award of benefits, a factor dependent upon agency
conduct, an additional prerequisite to trial work eligi-
bility, finding such a prerequisite to be contrary to Con-
gress’ unambiguous intent. 221 F.3d at 833-4. See also
a ee,
33
Hunter, 851 F.Supp. at 77 (“The point at which the Secre-
tary comes to acknowledge the existence of a disability is
not and should not be a consequential factor in the cal-
culus of entitlement, let alone a determinative one.”).
Contrary to the Commissioner’s contention that such a
result is a “necessary consequence” of allowing Sccial
Security to decide claims without having to wait 12
months from onset, (Pet. Brief 49), proper application of
the entitlement statute eliminates these unfair conse-
quences by awarding benefits in the first and each succes-
sive month in which all criteria of entitlement are met,
regardless of when the claim is finally adjudicated.
B. This Construction of the Statute and Regula-
tions Is in Accordance with the Legislative His-
tory of Title II and Title XVI Work Incentives.
The legislative history of the disability provisions of
the Social Security Act demonstrates that Congress has,
from the very beginning, sought to encourage disabled
claimants to return to work as early as possible. This goal
is clearly reflected in the express language of the trial
work period statute, which makes a trial work period
available from the very first month of entitlement to
disability benefits. From the first extension of the Social
Security program to disabled workers in 1956, there were
provisions for referral of handicapped persons to state
vocational rehabilitation programs, “to the end that as
many disabled individuals as possible may be restored to
gainful work.” S.Rep. No. 83-1987 (1954) reprinted in 1954
U.S.C.C.A.N. 3710 at 3712, 3786, 3729.
34
When the Social Security Act was amended in 1960,
Congress broadened the trial work period to include
those who rehabilitated themselves or who worked under
rehabilitation plans other than the state rehabilitation
agencies. “The committee believes that the broadening of
the trial-work period will be an incentive to greater reha-
bilitation efforts.” S.Rep. No. 86-1856 (1960), reprinted in
1960 U.S.C.C.A.N. 3619, 3623. The amendments also pro-
vided for disability benefits to be paid, without a second
waiting period, for those whose disability recurred rela-
tively soon after termination of benefits. “This will
encourage disabled persons to return to work even
though there may be question as to whether their work
attempts will be successful. Most disability insurance
beneficiaries who return to work do so despite severe
impairments,” which make the loss of a job and the
recurrent need for disability benefits more likely. Id. at
3624.
Even when it tightened up the disability standard in
the 1967 amendments, Congress maintained the trial
work provisions:
Paragraph (4) of the new section 223(d) directs
the Secretary by regulations to prescribe the cri-
teria for determining when services or earnings
demonstrating ability to engage in substantial
gainful activity, and provides that an individual
whose work or earnings meet these criteria will
be found not to be disabled (except in the case of
work performed during a ‘period of trial work’).
S.Rep. No. 90-744 (1967), reprinted in 1967 U.S.C.C.A.N.
2834, 3103 (emphasis added).
35
Perhaps the most compelling indication of Congress’
intent to encourage disabled beneficiaries to attempt to
work and not to penalize them for those efforts is the
Employment Opportunities for Disabled Americans Act
which, in 1986, made permanent the special disability
benefits under the Supplemental Security Income (“SSI”)
program and eliminated all time limits on SSI disability
beneficiaries’ entitlement to work while still receiving
benefits. Significantly, the special cash benefits program
makes reduced SSI benefits payable to persons who work
at or above the SGA level despite continuing severe med-
ical impairment. 42 1J.S.C. § 1382h; 20 CFR § 416.262. The
legislative history of this program reflects Congress’
strong desire to encourage disabled persons to attempt to
work without the disincentive of termination of benefits.
While the Congress has found it necessary
and important to limit eligibility under these
programs to those who are so medically dis-
abled that they cannot work, the Committee
recognizes that some individuals determined to
meet the Social Security Act definition of dis-
ability are nevertheless so motivated towards
work and independence that they later manage
to work in spite of their impairments.
Such individuals present a difficult
dilemma for public policy. Allowing them to
continue receiving income maintenance benefits
would seem to undermine the fundamental
Congressional decision that eligibility be limited
to those who cannot work. This policy could
lead to a far broader program which would not
only be much more costly but would also raise
serious policy issues.
36
On the other hand, terminating benefits in
such circumstances can be a powerful disincen-
tive to the work efforts which these severely
disabled individuals are otherwise motivated to
attempt . . .
... The Committee recognizes that section
1619 . . . will create some anomalous situations.
The Committee believes however that the accep-
tance of some anomalies is a — price to
ay for a program which, without an expansion
a ‘the basic $51 program, removes substantial
disincentives to work attempts by the most
highly motivated disability recipients.
S.Rep. No. 99-466 (1986), reprinted in 1986 U.S.C.C.A.N.
6087, 6088-90.
It is clear from the legislative history that Congress
has already weighed the competing concerns of possible
expansion of the disability rolls versus encouraging dis-
abled persons to try to work without the disincentive of
immediate termination from the disability program, and
that Congress has weighed in on the side of work incen-
tives for disabled persons. This predisposition is demon-
strated both in the SSI special cash benefits provisions
and in the trial work statute under Title I], which makes a
10 Significantly, the committee concluded that the “overall
economic impact on consumers and businesses would be
negligible.” Id. at 6097. In fact, the Congressional Budget Office
estimated that there would actually be cost savings to SSI,
concluding that “an estimated 20 to 30 percent of 1619
ts would reduce their work activity in the absence of
the 1619 protections. Section 1619 thus encourages some
disabled participants to increase their earnings, which in turn
reduced SSI.” Id. at 6099.
—————— -——_—_—--
ae
ee — a
37
trial work period available from the very first month a
person becomes entitled to disability benefits.
C. This Construction of the Statute is Supported
by the Rulings of Four Other Courts of Appeals
and Numerous District Courts.
The Fourth Circuit’s construction of the statute and
regulations is in accordance with the rulings of four other
Courts of Appeals and many district courts. These courts,
consistent with the language of the statute and long-
standing regulations, have focused on the five-month
waiting period and held that, because the statute and
regulations entitle an applicant to benefits from the first
month all criteria are met, including passage of the wait-
ing period, the trial work period, which by definition
begins in the month when the applicant is first entitled to
benefits, must begin at that same time.
The leading case of McDonald v. Bowen held that an
“individual who suffers from an impairment that is
expected to last at least twelve consecutive months is
entitled to benefits (as well as to a trial work period) after
completing the five-month waiting period” even though
the claimant had returned to work before the hearing and
before 12 months had elapsed from the date of onset. 818
F.2d 559, 564 (7th Cir. 1986).
Likewise, the Tenth Circuit in Walker v. Sec’y of Health
& Human Services concluded that an individual who suf-
fers with an impairment which has lasted, or is expected
to last, 12 months is entitled to disability benefits and to a
trial work period after waiting five months. 943 F.2d at
1260. Similarly, the Eighth Circuit in Newton v. Chater
rejected the rationale of SSR 82-52 and held:
According to the statute and regulations,
though, a trial work period starts in the month
that entitlement to disability benefits begins,
which is the month following five consecutive
months of being under a disability that has
lasted or is expected to last a total of twelve
continuous months . . . In other words, under
the statute, a claimant need not have had a
disability for twelve consecutive months before
he may test his ability to work.
92 F.3d at 694.
Most recently, the Sixth Circuit in Salamalekis v.
Comm’r of Soc. Security ruled that, pursuant to the plain
language of the Act, the claimant, who had established all
five prerequisites of entitlement, was entitled to disability
benefits and to a trial work period despite his return to
work within 12 months of his onset date. 221 F.3d at 832,
834. The Court explicitly rejected the Commissioner’s
position that Salamalekis’ return to work within 12
months of onset precluded a finding of disability:
This position ignores the complete definition of
disability under the Act, which covers not only
those impairments that actually last 12 months,
but also those impairments expected to last 12
months. At the time Salamalekis returned to
wah an ee SS Se ee
ongoing and was expected to last for 12 months,
and the SSA so found. A claimant who meets
Congress’s prospective standard for disability
cannot be denied benefits based on hindsight.
39
District courts have repeatedly adopted the rationale
of the McDonald, Walker, Newton and Salamalekis courts,
and their construction of the statute and regulations. See,
e.g., Mulderig v. Sullivan, 1993 U.S. Dist. LEXIS 908
(S.D.N.Y. 1993); Fabel v. Shalala, 891 F.Supp. 202 (D.N_]J.
1995); Hunter v. Dept. of Health & Human Services, 851
F.Supp. 75 (E.D.N.Y. 1994); Wilson v. Shalala, 841 F.Supp.
1491 (E.D. Wash. 1994); Tepfer v. Sec’y of Health & Human
Services, 712 FSupp. 156 (W.D. Ark. 1989); Goldstein v.
Harris, 517 FSupp. 1314 (S.D.N.Y. 1981); Darring v. Cal-
lahan, 1997 U.S. Dist. LEXIS 15187 (S. Ala. 1997); Deihl v.
Sec’'y of Health and Human Services, 835 FSupp. 1182
(C.D.Cal. 1993); Jenkins v. Heckler, 783 F.Supp. 998 (D.S.C.
1992); Hassan v. Apfel, 2000 U.S. Dist. LEXIS 16953
(S.D.N.Y. 2000).
In all of these cases except Walker and Newton, the
claimant had returned to work prior to final adjudication
of his claim and within 12 months of his onset date. Each
court analyzed the statute and regulations to hold that a
claimant is “entitled” to disability benefits - and there-
fore to a trial work period — ia the first month in which he
meets all the criteria, including passage of the five month
waiting period, such that the return to work was pro-
tected by a trial work period. Likewise, in this case, if, as
the medical record clearly establishes, Walton had a dis-
abling impairment which was expected to last at least 12
months, then he was entitled to disability benefits begin-
ning in April 1995, once his five-month waiting period
had elapsed. Consequently, his return to SGA in October
1995 must be considered as part of a trial work period
and Social Security may not deny benefits to Walton on
40
the basis that he had, by that work, demonstrated an
ability to engage in SGA. McDonald, 818 F.2d at 565.
D. Sound Policy Concerns Undergird the Rulings
of the Fourth Circuit and Other Courts.
The sound policy concerns which underlie the rul-
ings of the Fourth Circuit and other courts echo concerns
raised by Congress throughout the legislative history.
Key among those concerns was a desire to encourage
disabled persons to try to work, despite continuing
severe impairment, without the disincentive of losing
benefits because of that work. As the Hunter court noted:
Although SSR 82-52 no doubt serves to weed
out the temporarily disabled, it also excludes
the truly disabled who, like Ms. Hunter, after
waiting indefinitely, are trying their level best to
be productive. The agency’s present posture in
SSR 82-52 undermines such a claimant's initia-
tive instead of encouraging it, as it ought to. The
policy rewards apathy, as claimants come to
realize that it is prudent to stay in bed probably
until the anniversary of their disability, but cer-
tainly no sooner than the date upon which the
agency stamps its approval on the disability
claim. Congress could not have intended this
result - deterring claimants who wish to return
to work from doing so, especially if they do not
do so because of the agency’s inefficiencies.
Hunter, 851 F.Supp. at 79.
Like the Fourth Circuit, other courts have high-
lighted the inequity of making entitlement to benefits and
a trial work period contingent upon the timing of the
41
agency’s determination. See, e.g., Tepfer, 712 F.Supp. at
159 (noting that Social Security’s interpretation would
result in unequal treatment of applicants depending on
the efficiency and workload of the Social Security office
in which they filed); Deihl, 835 F.Supp. at 1189 n.5. (recog-
nizing that economic necessity often forces claimants to
return to work despite continuing impairment, forcing
them “to choose between staying home without funds,
thus, staying safely within the Secretary’s regulatory
scheme, or going to work because of economic necessity
but running afoul of the Secretary’s regulations”).
The statutory construction endorsed by the Fourth
Circuit and numerous other courts ensures that claimants
are not penalized because they are forced to apply in an
inefficient or overloaded Social Security office, and it
promotes Congress’ legitimate and clearly expressed goal
of encouraging disabled persons to try to work without
the disincentive of a disallowance because of the work
attempt.
Cleveland Walton has been penalized by Social Secu-
rity for his persistent effort to work despite his schizo-
phrenia, and has been forced to endure six years of
litigation in an effort to receive disability benefits. There
is no question but that benefits would have been paid
years ago had Mr. Walton merely stayed home and not
attempted to work. Social Security’s policy violates the
unambiguous language of the disability definition and of
the entitlement and trial work period statutes, and con-
travenes clearly expressed Congressional goals. The
Commissioner’s unlawful policy should be rejected so
42
that others like Cleveland Walton are not penalized in the
future for their courageous, good-faith efforts to work.
+
CONCLUSION
The judgment of the Fourth Circuit Court of Appeals
should be affirmed.
Respectfully submitted,
KATHRYN L. Pryor
Counsel of Record
CENTRAL VirGINIA LecaL Alp
Soctety, INc.
P.O. Box 12206
Richmond, Virginia 23241
(804) 648-1012
James W. Speer
Vircimia Poverty Law CENTER
201 West Broad Street, Suite 302
Richmond, Virginia 23220
(804) 782-9430
Marcetunus L.M.B. Siac
Lecat Arp Justice CENTER
101 West Broad Street, Suite 111
Richmond, Virginia 23220
(804) 643-1086
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