Reply Brief — Barnhart v. Walton

—— —

Sup rens t, 6.8.

FILE ®

(4)

—7 | JAN 9 2002

No. 00-1937 |

In the Supreme Court of the United States

JO ANNE B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY, PETITIONER

V.

CLEVELAND B. WALTON

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

THEODORE B. OLSON

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

TABLE OF CONTENTS

Page

I. The Commissioner’s construction is consistent with

the Act’s definition of disability“ . . . . 3

A. The text and history of the Act support the

Commissioner's construction sene 3

B. Respondent's construction would convert the

Act into a short-term disability program and

undermine work incentives . ... 12

II. Respondent is not entitled to a trial work period

because he never became entitled to benefits 15

TABLE OF AUTHORITIES

Cases:

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

1971), cert. denied, 407 U.S. 911 (1972) . . .. s

Chevron U.S.A. Ine. v. Natural Res. Def. Council,

, cerscretitciiteirteeininctincennennaee 4

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

— ͤ ͤM — ¹ü n U 7

Colautti v. Franklin, 439 U.S. 379 (1979) . . 5

Commodity Futures Trading Comm in v. Schor,

2 EET TEE en 10

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

— ——— eee; 9

Fabel v. Shalala, 891 F. Supp. 202 (D. N. J. 1995) 8

Jenkins v. Heckler, 783 F. Supp. 998 (D. S. C.

99 /j/ĩ ——————————

Johnson v. Bowen, 864 F. 2d 340 (5th Cir. 1988) . 8,9

McDonald v. Bowen, 818 F.2d 559 (7th Cir. 1986) .......... 7, 8,

9, 20

Neal v. Bowen, 829 F. 2d 528 (5th Cir. 1987) . 8

Newton v. Chater, 92 F.3d 688 (8th Cir. 1996) . . 9

Regions Hosp. v. Shalala, 522 U.S. 448 (1998) . . . 20

(I)

II

Cases—Continued:

Salamalekis v. Commissioner, 221 F.3d 828 (6th

888

Sierakowski v. Weinberger, 504 F.2d 831 (6th Cir.

) | | ov

Singletary v. Bowen, 798 F.2d 818 (5th Cir, 1986) —

Smiley v. Citibank (S. D.), N. A., 517 U.S. 735

K .

Thomas Jefferson Univ. v. “Shalala, 512 US. 504

—

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

United States v. Morton, 467 U.S. 822 (1984) .....

Walker v. Secretary of HHS, 943 F.2d 1257 (10th

Cir. 1991) :

- Statutes, regulations and rule:

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

III

In .

42 U.S.C. 416(i)(2)(A) *

42 U.S.C. 416d) 2) (D) (1994) . . . . . .

42 U.S.C. 422 (1994 & Supp. V 1999) .

? 1

42 U.S.C. 422(c)(3) .... —

Ii mccreccccccsecscscctensienesenteseseseseseuntetinss

42 U.S.C, 423(d)(1)

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

42 U.S.C, 423(d)(2) (1994 & Supp. V 1999) . .

42 U.S.C, 423(d)(2)(A) ..

42 U.S.C. 423(f)(1)

42 U.S.C. 425(e)

42 U.S.C. 1320b-19 (Supp. V 1999)

42 U.S.C. 1382h

42 U.S.C. 1383(a\(6) (Supp. IV 1999) ...

III

Statutes, regulations and rule Continued: Page

Social Security Amendments of 1954, ch 1206,

r 12

20 C. F. R.:

Pt. 404:

Section 404. 150 1(f) (1960 Supp.) u 1

Section 404. 15 200b) (2000) . 2,7

eee scccssssvereseseeseseesesosseseeseres 2

D 7

Section 404.1574(c) (001) .. . .us. 19

Soeetion 404. 157/50d) (2001) . . .us 19

r ec rineeeestnenersactepenanesesansenes 7

, = 16

Pt. 416:

SSR 73-7e (1973) (Cum. Ed. 1971-1975) . . l

SSR 82-52 (1982) (Cum. Ed. 1981-1985) 7

Miscellaneous:

Disability Insurance State Manual (Sept. 9, 1965) 1

22 Fed. Reg. (1957):

91939 ů ——ů——ů— •—ä—U— 1

— p 1

60 Fed. Reg. (1995):

1111 4

p. 12,168 6 ——ßꝙi2 4

65 Fed. Reg. (2000):

111111 ů— ů ů—ů— 4

EEE q

A 9 16, 17, 18, 19

1 16

H.R. Rep. No. 1189, 84th Cong. Ist Sess. (1955) 3, 12

H. R. Rep. No. 213, 89th Cong., Ist Sess. (1965) 10

H.R. Rep. No. 231, 92d Cong., Ist Sess. (1971) 2,6

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

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

IV

Miscellaneous—Continued: Page

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

Disability Insurance State Manual) (Nov. 19, 1965) | 1

S. Rep. No. 404, 89th Cong., Ist Sess. Pt. I (1965) passim

S. Rep. No. 408, 96th Cong., Ist Sess. (1979) 7

REPLY BRIEF FOR THE PETITIONER

Respondent does not dispute that the Commissioner has

consistently construed the Social Security Act as providing

disability benefits only to workers who have an impairment

that has lasted or can be expected to last for the statutory

time period at a level of severity that prevents substantial

gainful activity. Immediately after the Act was amended in

1956 to provide disability insurance benefits, the Commis-

sioner issued regulations specifying that a claimant is not

entitled to benefits—that the then-applicable requirement of a

“long-continued and indefinite duration” is not met—if “the

impairment will, in the foreseeable future, be so diminished

as no longer to prevent substantial gainful activity.” 22

Fed. Reg. 4362, 4363 (1957) (codified as 20 C.F.R. 404.1501(f)

(1960 Supp.)) (emphasis added). As the Commissioner’s con-

temporaneous instructions to the States explained, the

“long-continued and indefinite duration” requirement refers

to the “expected duration of the medical impairment” at a

“level of severity sufficient to preclude SGA.” OASI Disa-

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

State Manual), at 1 (Jan. 22, 1957).

When Congress changed the duration requirement to “not

less than 12 months” in 1965, the Commissioner adhered to

that construction, explaining that the requirement is not met

unless the impairment “is expected to last at a disabling

level for 12 months or more from onset.” SSA Disability

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

State Manual), at 4 (Nov. 19, 1965); see Disability Insurance

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

refers t. that period of time during which an individual is

continuously unable to engage in substantial gainful activity

because of [the] impairment.”). See also SSR 73-7c, at 122

(Cum. Ed. 1971-1975) (“both the ‘inability to engage in any

substantial gainful activity’ and the ‘impairment’ must exist

(1)

at the same time and for the required 12-month period”); 20

C. F. R. 404.1520(b), 404.1520(f) (2000) (claimant who engages

in substantial gainful activity is “not disabled regardless of

his] medical condition”); Gov’t Br. 24-27.

Congress also has long understood that the impairment

must be of disabling severity for the full 12-month period.

See Gov’t Br. 20-21, 33-38. When Congress changed the

duration requirement in 1965, the Senate Report explained

that the amendment would provide “for the payment of

disability benefits for an insured worker who has been or can

be expected to be totally disabled throughout a continuous

period of 12 calendar months.” S. Rep. No. 404, 89th Cong.,

Ist Sess. Pt. I, at 98-99 (1965) (emphasis added). When

Congress later provided supplemental security income (SSI)

for the disabled poor, it again made clear that “[n]jo benefit is

payable *** unless the disability is expected to last (or has

lasted) at least 12 consecutive months.” H.R. Rep. No. 231,

92d Cong., Ist Sess. 56 (1971) (emphasis added).

Respondent nevertheless insists (Br. 4) that the “clear and

unambiguous” text of the Act requires the payment of bene-

fits whenever the impairment—the mere physical or mental

condition—has lasted or can be expected to last 12 months,

even if it is not severe enough to prevent substantial gainfu)

activity for much of that time. In his view, no “duration

requirement for the inability to engage in substantial gainful

activity * * * exists.” Resp. Br. 6 (quoting Pet. App. 7a).

The Commissioner, however, has reasonably read the twin

definitions of disability in 42 U.S.C. 423(d)(1)(A) and (d)(2) to

require not only an impairment, but an impairment so severe

that it precludes the claimant from engaging in any

substantial gainful activity. Those provisions nowhere sug-

gest (much less unambiguously state) that the severity

requirement is met so long as the impairment is of disabling

severity for a mere moment. Respondent’s position also

cannot be reconciled with decades of appellate precedent,

3

and with the purpose of the disability program, which was to

provide benefits for workers “forced into premature retire-

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

ability,” not to provide compensation for workers suffering

from short-term disabilities. H.R. Rep. No. 1189, 84th Cong.,

Ist Sess. 3 (1955) (emphasis added).

Respondent’s construction, moreover, would fundamen-

tally alter the nature of the Social Security program,

eliminating a requirement the Commissioner has applied in

resolving tens of millions of claims over 45 years. It would

radically broaden the number of individuals entitled to

benefits, creating an $8 billion annual burden. Pet. 18. And

it would create a system that is exceedingly difficult to

administer. Under respondent’s approach, a claimant who is

prevented from working for a short period by, for example, a

virus or other chronic condition, would be entitled to SSI

benefits under Title XVI if the condition, in a medical sense,

persisted or is expected to persist in his body for a year.

Thereafter, the Commissioner would have to find cause for

and terminate benefits. Respondent nowhere explains why

Congress would have sought to impose that burden on an

agency that already processes over 2 million new claims a

year. Further, although respondent relies on the policy of

encouraging claimants to return to employment as soon as

possible, his proposed construction would undermine that

incentive by mandating the payment of benefits not merely

to workers who return to their jobs, but also to workers who

can return to work but do not do so.

I. THE AGENCY'S CONSTRUCTION IS CONSISTENT

WITH THE ACT’S DEFINITION OF “DISABILITY”

A. The Text And History Of The Act Support The

Commissioner's Construction

Respondent does not dispute that, if the Act is silent or

ambiguous with respect to the precise question at issue here,

the Commissioner’s construction must be sustained so long

4 —

as it is reasonable. See Chevrow U.S.A. Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842, 843 (1984); Gov't Br. 22-

23. Rather, respondent argues that the text of the Act

forecloses the Commissioner’s interpretation. Respondent

reasons (Br. 8) that, because the 12-month duration require-

ment in Section 423(d)(1)(A) unambiguously applies to the

impairment, the statute necessarily precludes application of

a corresponding 12-month duration requirement to the

inability to engage in substantial gainful activity.

1. Respondent’s textual argument begins (Br. 6-10) by

ignoring critical features of the definition of “disability.”

Section 423(d)(1)(A) does require that the impairment last or

be expected to last 12 months. But the text of Section

423(d)(1) does not unambiguously resolve the level of

severity at which the impairment must persist during that

time period. Consistent with the statutory goal of providing

disability benefits rather than impairment benefits, the

Commissioner has consistently interpreted the Act as

requiring the impairment to persist at a disabling level of

severity—that the impairment have been or be expected to

be so severe as to preclude substantial gainful activity

—throughout the 12-month qualifying period. See pp. 1-2,

supra; Gov't Br. 20-21, 24-27 & n.7.

That construction is supported by two features of the Act.

The first is Section 423(d)(2)(A), which clarifies the definition

1 That construction is embodied not merely in Social Security Rulings,

but also in the Commissioner's recent notice-and-comment rulemaking,

which explains that “the duration requirement to establish disability will

not be met” if the “impairment no longer prevents substantial gainful acti-

vity” before the 12-month period has lapsed. 65 Fed. Reg. 42,772, 42,774

(2000); 60 Fed. Reg. 12,166, 12,168 (1995) (proposing construction). Con-

trary to respondent's contention (Br. 21, 27 n.6), deference is warranted

even where the rulemaking is completed after the case has commenced.

Smiley v. Citibank (South Dakota), N. A, 517 U.S. 735, 741 (1996); United

States v. Morton, 467 U.S. 822, 835-836 n.21 (1984). The construction,

furthermore, was applied in the adjudication of respondent’s claim by the

ALJ (Pet. App. 40a-41a) and the Appeals Council (Pet. App. 47a-48a).

5

of disability by specifying that a claimant is not disabled

unless the impairment is “of such severity” that the claimant

can neither “do his previous work” nor “engage in any other

kind of substantial gainful work which exists in the national

economy.” That provision is naturally read as clarifying the

scope of the severity requirement applicable to all relevant

time periods—including the 12-month period during which

the impairment must have lasted or be expected to last.

Second, Section 423(d)(1)(A) itself expressly links the

impairment and the inability to engage in substantial gainful

activity. Under Section 423(d)(1)(A), it is not enough for a

claimant to show an “impairment” of the specified duration.

Instead, the claimant must suffer an “inability to engage in

any substantial gainful activity by reason of” that impair-

ment. Accordingly, it is reasonable for the Commissioner to

construe Section 423(d)(1) as requiring that the claimant

have an impairment that prevents (or is expected to

prevent) substantial gainful activity for the requisite period.

That is particularly true given the absurd consequences the

contrary construction would yield. As we have noted (Gov't

Br. 5, 40) and respondent does not dispute, Title XVI does

not provide any “waiting period.” Thus, under respondent’s

construction, a claimant who is prevented from working for a

short period by, for example, hypertension, would be entitled

to SSI benefits under Title XVI if that condition, in a

medical sense, persisted for a year thereafter even if it did

not affect his ability to work. There is no evidence that

Congress contemplated such a result. :

For similar reasons, respondent errs in asserting that the

Commissioner’s construction is precluded by the maxim that

“a definition which declares what a term ‘means’ excludes

any meaning that is not stated.” Resp. Br. 12 (quoting Co-

lautti v. Franklin, 439 U.S. 379, 392-393 n.10 (1979)). There

is no need to refer to a “meaning” of disability other than the

statutory definitions contained in Section 423(d)(1)(A) and

6

(d)(2)(A); nor is there any need to insert “additional

language,” Resp. Br. 8, or a “criterion” extraneous to those

definitions, id. at 11-12. The severity requirement on which

the Commissioner relies—the rule that the impairment must

be so severe as to preclude substantial gainful activity—is

set forth in Section 423(d)(1)(A) and (d)(2)(A). The only

question is whether, consistent with the Commissioner’s

longstanding construction, the impairment must be of dis-

abling severity throughout the 12-month period.

Deferring to the Commissioner’s longstanding construc-

tion thus does no violence to the statutory text or Congress’s

intent. To the contrary, only the Commissioner’s construc-

tion properly implements Congress's intent that benefits be

paid only if the claimant is “totally disabled” for at least “12

calendar months.” S. Rep. No. 404, supra, at 99; H.R. Rep.

No. 231, supra, at 56.7 Even respondent’s amici agree with

the Commissioner’s construction: “There is no dispute,” they

explain, “that if the impairment is (or is expected to be) of

less than disabling level severity for 12 months then the

applicant cannot qualify for benefits.” Br. AARP 13.°

2 Respondent errs in relying on the Commissioner's regulations to

support his contrary construction. See Resp. Br. 20-21. The cited regu-

lations do show that the impairment must have lasted or be expected to

last at least 12 months. But, like the Act itself, they nowhere suggest that

the impairment need not have lasted or be expected to last that long at the

requisite level of severity, as the Commissioner has long required. Pp. 1-

2, supra. The Commissioner’s construction of her own regulations, of

course, “must be given controlling weight unless it is plainly erroneous or

inconsistent with the regulation.” Thomas Jefferson Univ. v. Shalala, 512

U.S. 504, 512 (1994) (internal quotation marks omitted). Similarly,

respondent errs in claiming (Br. 8 n.2) that the “by reason of” language in

Section 423(d)(1)(A) merely requires that the inability to work “result

primarily from a medical impairment, not from economic conditions.” It

certainly has that effect. But it also requires a direct link between the

underlying impairment and the resulting disability.

3 Respondent now makes the case-specific argument that he has met

the severity requirement because his impairinent is “listed” as being

“severe enough to prevent a person from doing any gainful activity.”

7

2. Respondent asserts (Br. 13-14) that the courts “have

determined that the statutory language is so clear that the

agency’s interpretation is not entitled to deference.” That

assertion is also incorrect.

As an initial matter, respondent erroneously conflates the

two questions presented in this case. The cases on which

respondent relies (Br. 13-14) generally do not address

whether the impairment must have lasted or be expected-to

last at a disabling level of severity for the 12-month period to

satisfy 42 U.S.C. 423(d)(1) and (d)(2), which is the first

question presented. They address whether the trial work

rules embodied in SSR 82-52 (and 20 C.F.R. 404.1592) are

consistent with 42 U.S.C. 422(c), which is the second ques-

tion presented. See pp. 15-20, infra. Relying on the “can be

expected to last” component of the definition of disability,

those cases hold that a claimant may be entitled to a trial

work period if, at some point in the past, the disability was

expected to last 12 months, even though that expectation

later proved to be erroneous. See McDonald v. Bowen, 818

F. 2d 559, 563 (7th Cir. 1986) (Resp. Br. 22); Salamalekis v.

Commissioner, 221 F.3d 828, 822 (6th Cir. 2000) (Resp. Br.

14, 23). Although that reasoning is mistaken (pp. 16-17, 19-

20, infra); neither McDonald nor Salamalekis casts doubt

Resp. Br. 11 (quoting 20 C.F.R. 404.1525(a)) (emphasis omitted). That

assertion is a red-herring. The Commissioner uses “listings” to simplify a

portion of the severity determination; if an impairment is listed or is

equivalent to a listed impairment, it is presumed to be sufficiently severe

so long as other requirements (including durations) are met. See

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 804 (1999). Thus, if

the claimant’s impairment has ceased to prevent substantial gainful

activity before the expiration of 12 months, the claim must be denied,

whether or not the impairment is listed. See, e. g., 20 C. F. R. 404.1520(b)

(claimant engaged in “substantial gainful activity” will be found “not

disabled” at first step, “regardless of [his] medical condition” (emphasis

added)); S. Rep. No. 408, 96th Cong., Ist Sess. 45 (1979) (disability

generally determined “not by medical severity, but rather * * * in terms

of incapacity for significant employment substantial gainful activity.”). -

8

on the Commissioner’s rule that the impairment must have

been (or be expected to be) of disabling severity throughout

the 12-month period. To the contrary, McDonald holds that

a claimant will receive benefits only if her “disability is still

expected to last at least twelve continuous months” when

she returns to work; “otherwise she will not receive bene-

fits.” 818 F.2d at 564 (emphasis added). Similarly, Salama-

lekis nowhere purports to overturn the Sixth Circuit’s

earlier decision in Sierakowski v. Weinberger, 504 F.2d 831

(1974) (per curiam), where the court held that the claimant’s

“(inability to engage in any gainful activity and the

impairment which causes it cannot be separated,” and that

those “two components of disability must exist at the same

time.” Id. at 833 & n. I.“

In fact, the appellate decisions that do address the re-

lationship between the 12-month duration requirement and

the severity requirement fatally undermine respondent’s

position. The first appellate decision to address this issue,

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

1971), cert. denied, 407 U.S. 911 (1972), specifically rejected

respondent’s construction, concluding instead that both

4 The remaining decisions cited by respondent (Br. 13-14) similarly

address the trial work period, not whether the impairment must be of

disabling severity during the 12-month period. See, e.g., Fabel v. Shalala,

891 F. Supp. 202, 206 (D. N. J. 1995) (Resp. Br. 14); Jenkins v. Heckler, 783

F. Supp. 998, 1000-1001 (D. S.C. 1992) (Resp. Br. 23). See also notes 5-6,

infra. In Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986) (Resp. Br. 22),

the court ¢id distinguish between the impairment and severity require-

ments, but it ultimately concluded that the severity requirement had been

met throughout the 12-month period because the claimant could not “ob-

tain and maintain employment.” Id. at 823. Here, in contrast, respondent

successfully held a job for two years before being dismissed for selling

alcohol to minors. Moreover, after Singletary was decided, the Fifth Cir-

cuit repeatedly reaffirmed the rule that “an impairment must be disabling

for a twelve month period” and distinguished Singletary as creating an

“exception” for mental illnesses that permit intermittent work but

prevent claimants from retaining their jobs. Johnson v. Bowen, 864 F. 2d

340, 346 (1988); Neal v. Bowen, 829 F. 2d 528, 531 n.2 (1987).

22

9

“components of disability“ —the impairment and the

resulting inability to work—“must exist at the same time.”

The Sixth Circuit adopted that construction in Sierakowski

in 1974, and the Eighth Circuit adopted it in Titus v.

Sullivan, 4 F.3d 590, 594 (1993). Other courts have endorsed

that construction as well. See Estep v. Richardson, 459 F.2d

1015, 1016 (4th Cir. 1972) (“claimant must have an impair-

ment which prevents him from engaging in substantial

gainful activity for a period of at least 12 months“); Johnson

v. Bowen, 864 F.2d 340, 346 (5th Cir. 1988) (per curiam) (the

“impairment must be disabling for a twelve month period”);

McDonald, 818 F.7d at 564. The decision in this case thus

represents a sharp departure from the longstanding judicial

interpretation of the Act, as well as from the Commissioner’s

longstanding interpretation.

3. To the extent there can be doubt concerning the rea-

sonableness of the Commissioner’s construction, Congress’s

repeated amendments to the Act eliminate it. “It is well

established that when Congress revisits a statute giving rise

to a longstanding administrative interpretation without

pertinent change, the ‘congressional failure to revise or

repeal the agency’s interpretation is persuasive evidence

5 Although respondent attempts to distinguish Estep as a case in

which the impairment did not last a year, that misreads Estep. There, the

court of appeals upheld the denial of benefits because the claimant could

“work as early as March 3, 1969,” 459 F.2d at 1016 (emphasis added), i.e.,

because the impairment had ceased to be disabling before the end of 12

months. Indeed, the impairment itself persisted for more than 12 months;

“residuals” of the injury continued to give the claimant “trouble” and

made it difficult to bend or stoop years later. [bid.

6 Respondent errs in asserting (Br. 24-25) that Walker v. Secretary of

HHS, 943 F.2d 1257, 1260 (10th Cir 1991), and Newton v. Chater, 92 F.3d

688 (8th Cir. 1996), “effectively” overruled Alexander and Titus. Walker

and Newton addressed the Commissioner’s trial work regulations, not

whether the impairment must have been or be expected to be of disabling

severity for the requisite duration. See Gov’t Reply Br. Cert. Stage at 2-3.

10

that the interpretation is the one intended by Congress.

CFTC v. Schor, 478 U.S. 833, 846 (1986).

Respondent does not dispute that Congress made

repeated amendments “over the years without changing the

Commissioner’s construction.” Resp. Br. 17-18 n.4. Nor

does respondent deny that Congress, while amending the

Act, reaffirmed that construction. See p. 2, supra; Gov’t Br.

33-38. Thus, respondent ignores the fact that Congress,

while changing the duration requirement from “long-

continued and indefinite” to “not less than 12 calendar

months” in 1965, acknowledged that prior law had precluded

the payment of benefits unless the workers disability i. e.,

his inability to engage in substantial gainful activity by

reason of the impairment—“is expected * * * to be of long-

continued and indefinite duration.” H.R. Rep. No. 213, 89th

Cong., Ist Sess. 88 (1965) (emphasis added). Respondent

ignores the Senate Report’s explanation that the Act, as

amended, would make an insured worker “eligible for dis-

ability benefits if he has been under a disability which * * *

has lasted or can be expected to last for a continuous period

of not less than 12 calendar months.” S. Rep. No. 404, supra,

at 13 (emphasis added). See also id. at 98-99 (quoted p. 2,

supra). And he ignores the reason Congress chose to impose

a 12-month duration requirement—because “in the great

majority of cases in which total disability continues for at

least a year the disability is essentially permanent.” Id. at

99 (emphasis added). Respondent also makes no attempt to

address the similar statements ir the House and Senate

Reports accompanying the 1967 and 1972 amendments. See

p. 2, supra; Gov’t Br. 37-38.

Respondent nonetheless asserts (Br. 18 n.4) that the

Commissioner’s construction was not well settled when

Congress amended the Act, because it was “at odds with

judicial interpretations.” Respondent is mistaken. Respon-

dent cites (and we have found) no case preceding or contem-

1]

poraneous to the 1965 and 1967 amendments disagreeing

with the Commissioner’s construction. Moreover, when Con-

gress amended the statute in 1972, two courts of appeals

—the 10th Circuit in Alexander and the Fourth Circuit in

Estep—had concluded that both the impairment and the

resulting inability to work must have lasted or be expected

to last the 12-month period. See pp. 8-9, & nn. 4-6, supra.

In fact, respondent cites nothing from the legislative

history of the 1965, 1967, or 1972 amendments that con-

tradicts the Commissioner’s construction.’ Nor does respon-

dent cite anything from the history of the 1956 amendments

that created the disability insurance benefit program.

Instead, respondent relies (Br. 15-16) on the legislative

history of certain 1954 amendments. Those amendments,

however, created a different program—the “disability

freeze” program (see 42 U.S.C. 416(f))-—two years before

Congress created the disability insurance benefit program at

issue here. See Gov’t Br. 33-34. Even that legislative

history for the most part supports the Commissioner’s

construction. Jbid. Moreover, as we pointed out (and

respondent does not dispute), the second of the statements

quoted by respondent was largely without significance even

for the disability freeze program to which it referred. Gov’t

Br. 35 n.11. And the first of the statements he quotes (Resp.

Br. 16) referred to a distinctive feature of the disability

freeze provision that was not present in the disability

7 Respondent identifies portions of the legislative history indicating

that the impairment must have lasted or be expected to last 12 months.

See Resp. Br. 17. But that proves nothing. No one disputes that the im-

pairment must de of the specified duration. The only question is whether

the impairment must have lasted or be expected to last that long at a

disabling level of severity. As the House and Senate Reports demonstrate,

Congress clearly understood that the answer to that question is yes“

that the worker must be “totally disabled throughout a continuous period

of 12 calendar months” because of the impairment. See S. Rep. No. 404,

supra, at 99.

12

insurance program enacted two years later. In any event,

the statements quoted by respondent furnish no basis for

adopting respondent’s vision of the disability insurance

program 45 years after it was established. That is par-

ticularly so because Congress understood, when it created

the disability insurance benefits program in 1956, that a wor-

ker would receive benefits only if his disability“ defined as

the inability to work on account of an impairment—was of

“long-continued and indefinite” duration (H.R. Rep. No.

1189, supra, at 5), and it since has repeatedly expressed that

understanding, pp. 1-2, 10, supra.

B. Respondent's Construction Would Convert The Act

Into A Short-Term Disability Program and Undermine

Work Incentives

1. Respondent’s claim that he is entitled to benefits

merely because his underlying medical condition lasted at

least a year—even though it did not preclude him from

successfully returning to work during that period—is also

impossible to reconcile with the purpose of the disability

programs. Congress established these programs to protect

workers who were “forced into premature retirement”

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

not to provide payments to workers who are only briefly

prevented from working by a long-term medical condition.

H.R. Rep. No. 1189, supra, at 3. Congress, moreover, re-

jected proposals in 1965 to provide benefits to individuals

who were disabled for just six months, finding it “necessary

8 The disability freeze program specified that the “term ‘period of

disability’ means a continuous period of not less than six full calender

months * * * during which an individual was under a disability * * *.”

Social Security Amendments of 1954, ch. 1206, § 106(d), 68 Stat. 1080; see

42 U.S.C. 416(i)(2)(A) (now providing that “period of disability” must be

“at least 5 months”). A “period of disability” ended under the 1954 pro-

gram not only when the disability ceased, but also when the individual

reached retirement age. 1954 Amendments, § 106(d) (adding 42 U.S.C.

416(i)(2)); accord 42 U.S.C. 416(iX2)(D) (1994).

13

to require that a worker be under a disability for a some-

what longer period than 6 months in order to qualify for

disability benefits.” S. Rep. No. 404, supra, at 98 (emphasis

added). Respondent’s construction of the Act would con-

travene that deliberate choice. Under it, claimants would

receive Title II insurance benefits if they are unable to work

for only five months (the duration of the waiting period pro-

vided by 42 U.S.C. 423(c)(2)(A)). Moreover, because Title

XVI does not have a waiting period, the Commissioner

would be required to process claims for and pay Title XVI

SSI disability benefits to claimants who have chronic

impairments and suffer an inability to engage in substantial

gainful activity of virtually any duration. Recognizing as

much, respondent all but abandons his former suggestion

(Br. in Opp. 11, 17-18) that the five-month waiting period

establishes a de facto duration requirement for the inability

to work. Gov't Br. 40-42.

Nonetheless, respondent argues (Br. 26) that his con-

struction would generally prevent the payment of benefits

for short-term disabilities because, he asserts, some

impairments of long-term duration will “never [be] so severe

as to prevent” substantial gainful activity, while other

impairments that are sufficiently severe at the outset will

not last the full 12-month period. Those contentions ignore

the huge number of impairments—medically determinable

defects in the normal functioning of the body such as carpal

tunnel syndrome, back injuries, viral infections, and even the

hypertension respondent mentions—that often last

indefinitely but generally prevent workers from engaging in

substantial gainful activity, if at all, only briefly or

intermittently. See Gov't Br. 28-29. Under respondent’s

construction, each of those common ailments would become a

compensable disability under Title XVI if it prevents the

claimant from working for virtually any period of time,

however brief, and under Title II if it prevents work for just

14

five months—whether or not the claimant later goes back to

work. Thus, far from barring the payment of benefits for

short-term disabilities, respondent’s construction would

mandate that result in a vast number of cases. Respondent

points to no indication that Congress intended to impose

either the resulting $8 billion per-year cost of paying those

claims, or the enormous administrative burden of processing

them, on an agency that already processes two million claims

a year. See Pet. 18-19.

2. Ultimately, respondent’s fundamental contention—

and the theme underlying his submission—is that Section

423(d) should be read to link the duration requirement to the

impairment, but not to the inability to work, to give

claimants an incentive to return to work notwithstanding

their impairments. That argument, however, once again con-

flates the two questions presented. Congress addressed the

incentive for disabled individuals to return to work through

the trial work provisions of Title II (42 U.S.C. 422), and the

work incentive program in Title XVI (42 U.S.C. 1382h), as

well as the recently established Ticket to Work and Self

Sufficiency Program (42 U.S.C. 425(e), 1320b-19, 1383(a)(6)

(Supp. IV 1999). See also p. 19, infra (regulations relating to

unsuccessful work attempts). Moreover, under the

Commissioner’s construction, a claimant who has not yet

been adjudicated disabled already has a strong incentive to

return to work, because there is no guarantee that the Com-

missioner will award him benefits, especially if he becomes

able to work before benefits are awarded.

Finally, contrary to respondent’s repeated suggestion, his

construction would not merely establish a narrow exception

to the 12-month duration requirement that is limited to those

claimants who actually return to work despite an impair-

ment. Rather, it would require the payment of benefits to

millions of claimants who, having suffered a short-term

disability by reason of a chronic impairment, can but do not

15

return to work within 12 months of the disability’s onset.

And it would be the Commissioner’s burden to continue

paying benefits or to find justification and initiate

proceedings to terminate them. See, e.g., 42 U.S.C. 423(f)(1)

(termination of benefits permitted if “the individual is now

able to engage in substantial gainful activity” because “there

has been any medical improvement in the individual’s

impairment”). Respondent thus envisions a program that

would be virtually impossible to administer—a program that

creates an enormous number of entitlements for short-term

disabilities and then places the burden of terminating

payments on an agency that already processes two million

claims a year. For similar reasons, respondent’s construc-

tion in fact would create an enormous disincentive to

working. Under it, millions of additional individuals would

become eligible for benefits even though they are disabled

only briefly; they would receive benefits for a period of time

during which they could work; and they would continue to

receive those benefits until the Commissioner managed to

terminate them.

II. RESPONDENT IS NOT ENTITLED TO A TRIAL

WORK PERIOD BECAUSE HE NEVER BECAME

ENTITLED TO BENEFITS

Alternatively, respondent argues that neither his ability

to work nor his actual return to work within 12 months of

the onset of his alleged disability should preclude him from

receiving benefits because, he claims, he was entitled to a

nine-month trial work period under 42 U.S.C. 422(c). As

respondent concedes, the trial work period begins “with the

month in which [the claimant] becomes entitled to disability

insurance benefits.” Resp. Br. 27 (emphasis added) (quoting

42 U.S.C. 42 de 3). Respondent, however, never became

entitled to benefits. And where the claimant never

16

“becomes entitled” to benefits, under the plain text of

Section 422(c)(3), the trial work never “begin{s].””

A. Respondent essentially ignores that construction of

the Act, which was explained in detail in the Commissioner’s

recent rulemaking and resulting regulations (20 C. F. R.

404. 159 20d) (2): 65 Fed. Reg. at 42,774, 42,780), and in our

opening brief (at 44-46, 47-48). Instead, respondent asserts

that an individual is entitled to benefits, and a trial work

period, if his impairment was still expected to last“ 12

months as of the date of application.“ Resp. Br. 31, 32.

Thus, respondent asserts, he became entitled“ to benefits,

and to a trial work period, after five months of disability

because, when he applied for benefits, his impairment “was

* * * expected” to be disabling for at least 12 months. That

is true, he claims, even though the disability had not lasted

and could not be expected to last 12 months when his claim

was actually adjudicated. /d. at 32.

That contention is contradicted by the Act’s text. See

Gov’t Br. 45 n.14. Section 423(d)(1A) does not provide that

an applicant is entitled to benefits if his disabling impairment

was expected to last 12 months at some point in the past.

Instead, an applicant is entitled to benefits if the impairment

precluding substantial gainful activity “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) (emphasis added). Because

Section 423(d)(1)(A) uses the present tense in describing

expected duration can be expected to last”—it is “most

reasonably * * * interpreted to mean that the time of

adjudication is the relevant point of reference.” 65 Fed.

If respondent had been found entitled to benefits, the Commissioner

would have calculated the beginning date for his entitlement; the trial

work period would then be deemed to have begun in the first month of

work activity following that date. Because the Commissioner concluded

that respondent was not entitled to benefits, however, there was no “first

month” of entitlement. See 65 Fed. Reg. at 42,781.

17

Reg. at 42,780 (emphasis added). Consequently, if the

claimant’s disability has not already lasted and cannot be

expected to last for 12 months when the adjudication takes

place, the claimant is not entitled to benefits and is not

entitled to a trial work period. “If Congress had intended

benefits” and a trial work period “to be awarded based on

evidence that a claimant’s impairment(s) did not in fact pre-

vent substantial gainful activity for 12 continuous months,

but only had been expected to do so at some earlier point in

the 12-month period, we believe that Congress would have

provided for a finding of disability based on an impairment(s)

which was expected to last 12 months, in addition to one

which can be expected to last 12 months.” Ibid.

Respondent asserts (Br. 31-32) that the Commissioner’s

construction eliminates the “can be expected to last” lan-

guage from the Act, or “reads into it a 12-month waiting

period” in place of the five-month waiting period established

by Congress. Neither assertion is correct. Where the claim

for benefits is adjudicated within 12 months of filing—as is

often the case—the claimant will be entitled to benefits even

if his disabling impairment has not already lasted 12 months,

if the decisionmaker finds that it “can be expected to last”

that long. The Commissioner’s construction thus gives full

effect to the present-tense meaning of the phrase “can be

expected to last.” Nor does the Commissioner’s construction

replace the five-month waiting period under Title II with a

12-month waiting period. Disability benefit claims under

Title II can be processed within five months of the alleged

disability’s onset, and such claims can be (and often are) paid

after the fifth month following the onset date if the

adjudicator determines that inability to work can be

expected to last at least 12 months. Gov’t Br. 41-42.

B. Respondent also argues that the Commissioner’s con-

_struction is “unfair” and “arbitrary” because, in some cases,

the entitlement to benefits might depend on when the claim

18

is adjudicated. Resp. Br. 32-33, 40-41. As the Commissioner

pointed out, however, that is an inevitable consequence of

permitting the Commissioner “to adjudicate disability claims

and award benefits without having to wait 12 months from

onset,” because the Commissioner necessarily must rely on

potentially faulty predictions about the disabling impair-

ment’s duration. See 65 Fed. Reg. at 42,780. Some claimants

may be awarded benefits (and trial work periods) because

the Commissioner makes a reasonable but mistaken pro-

jection that the disabling impairment will last 12 months.

But that hardly compels the conclusion that the Commis-

sioner must award benefits to claimants whenever, if she had

adjudicated their claims earlier, she would have made such a

mistake. In other legal contexts, evidence that develops

after the claim is filed, but before adjudication, is routinely

considered admissible and probative. That is true even if

that evidence would not have been available—and the

outcome therefore might have been different—had the

adjudication occurred earlier. See Gov't Br. 49-50.

C. Respondent’s reliance on policy and the Act’s legis-

lative history (Br. 33-37) is also unavailing. The materials

cited by respondent do show that Congress, by establishing

trial work periods, sought to encourage disabled beneficiar-

ies who are entitled to benefits to return to work notwith-

standing their receipt of benefits. But those materials do not

suggest that a claimant becomes entitled to benefits and a

trial work period if, at the time his claim is adjudicated, his

impairment no longer prevents substantial gainful activity

and never did so for 12 continuous months, merely because it

might reasonably (but erroneously) have been predicted to

last 12 months in the past. The Senate Report accompanying

the 1965 amendments in fact contradicts respondent’s

suggestion. Gov't Br. 46-47.

More fundamentally, respondent’s proposed construction

does not create—and in fact undermines—the incentive to

19

return to work on which he relies. Under respondent’s view,

the fact that the claimant’s inability to engage in substantial

gainful activity was reasonably but mistakenly expected to

last 12 months at the time of application is sufficient to

réquire an award of benefits. That is true not only for the

claimant who returns to work within 12 months, but also for

the claimant who becomes able to work but chooses not to;

the past expectation of a 12-month duration, when the claim

was filed, would be sufficient to create entitlement. Respon-

dent’s construction thus would award benefits to individuals

who are able to work but choose not to do so.

Nor is respondent correct in asserting that the Commis-

sioner’s rules deter insured workers from attempting to

return to work. Under the Commissioner’s rules, any

attempt to return to work that is unsuccessful—such as an

attempt that lasts less than 3 months—will not preclude the

applicant from receiving benefits. See 65 Fed. Reg. at

42,780; 20 C. F. R. 404.1574(c), 404.1575(d) (2001), Gov’t Br. 27

n.8. Those regulations offer significant protection for genu-

inely disabled individuals who make an effort to overcome

their circumstances within 12 months of the alleged dis-

ability’s onset. The regulations do not afford benefits to

claimants who can successfully return to work within 12

months of the alleged disability’s onset (whether they

actually return to work or not). But such claimants are not

precluded from working by their impairments—they are not

disabled—and have not suffered the sort of long-term

disability Congress required. They therefore have no reason

to demand disability benefits on top of the earnings they

could or do derive from their substantial gainful activity.

D. Finally, respondent notes (Br. 37-40) that a number of

courts have rejected the Commissioner’s construction of the

trial work rules. The decisions respondent cites, however,

commit the same error as respondent and the decision below.

Ignoring Congress’s use of the present tense—“can be

20

expected to last”—in Section 423(d)(1)(A), those courts have

read the Act as entitling a claimant to benefits and a trial

_work period if the impairment was expected to last 12

months when the claimant returned (or became able to

return) to work. See ¢.g., Salamalekis, 221 F.3d at 832;

McDonald, 818 F. 2d at 564. Like respondent, however, none

of those decisions attempted to reconcile that construction

with the Act’s text, which requires a disability that can be

expected to last the requisite period, not one that reasonably

was expected to last that long at some point in the past.

Moreover, just as respondent does not explain why

expected duration should be determined as of the date of the

application, those decisions fail to explain why expected

duration should be determined as of the date of the

claimant’s return to work. The reason for those omissions is

clear: The Act, most naturally read, requires the expected

duration of the disability to be determined in view of the

evidence available when the claim is adjudicated, not at some

(unspecified) point in the past. But even if the statute were

“ambiguous” or “silent.on the matter of time,” the Com-

missioner’s reasonable construction must be sustained.

Regions Hosp. v. Shalala, 522 U.S. 448, 458 (1998). Nothing

in the statute or its history requires the Commissioner to

make determinations regarding expected duration based on

what might have been thought to be true at some point in the

past and to ignore evidence showing that the claimant

already returned to work or could do so.

XR X * 4 *

For the foregoing reasons and those stated in the opening

brief, the judgment of the court of appeals should be

reversed.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

JANUARY 2002