# Reply Brief — Barnhart v. Walton

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 212

## Text

—— —

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0473%3A08. Public record. Not legal advice.