Amicus Curiae Brief — Barnhart v. Walton

No. 00-1937

IN THE

SUPREME COURT OF THE UNITED STATES

JO ANNE B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY,

Petitioner, -

Vv.

CLEVELAND B. WALTON.

Respondent.

On Writ of Certiorari To The

United States Court of Appeals

For the Fourth Circuit

BRIEF AMICI CURIAE OF AARP;

NOSSCR:; ET AL.:

- IN SUPPORT OF RESPONDENT

(Additional Amici continued on inside cover)

ROBERT E. RAINS ROCHELLE BOBROFF*

PROFESSOR OF LAW AARP FOUNDATION

LITIGATION

THE DICKINSON SCHOOL OF LAW

THE PENNSYLVANIA STATE MICHAEL SCHUSTER

UNIVERSITY AARP

150 South College Street

Carlisle. PA 17013 601 E Street, NW

(717) 240-5241 Washington, DC 20049

(202) 434-2060

Counsel for Amici Curiae

*Counsel of Record

BEST AVAILABLE COPY

“> 2001

(Additional Amici)

National Senior Citizens Law Center (NSCLC);

American Association of People with Disabilities;

American Council of the Blind (ACB);

American Occupational Therapy Association;

The Arc of the United States;

Bazelon Center for Mental Health Law;

Brain Injury Association of America;

Disability Law Center (Boston, Massachusetts);

Epilepsy Foundation®;

Helen Keller National Center for Deaf-Blind Youths and

Adults (HKNC);

National Association of Developmental Disabilities

Councils (NADDC);

National Multiple Sclerosis Society;

Title 11 Community AIDS National Network (TIICAN)®’,

United Cerebral Palsy Associations

TABLE OF CONTENTS

TAREE OF AUTEOURIEMES 2c cece cece cc ccccccvcces iii

INTERESTS OF AMICI CURIAE ...........-02+045:

SUMMARY OF THE ARGUMENT .................

I. DISABILITY BENEFITS BARELY

LIFT MOST BENEFICIARIES OUT OF

POVERTY AND ARE NOT A DISINCENTIVE

RS ee

Il. MOST PEOPLE WITH DISABILITIES

WANT TO WORK BUT HAVE GREAT

DIFFICULTY FINDING JOBS ................

Il. DESTITUTE APPLICANTS WITH

DISABLING IMPAIRMENTS

MAY TRY TO RETURN TO

WORK IN ORDER TO SURVIVE

BECAUSE OF LENGTHY DELAYS IN

AWARDING BENEFITS .............--00-:-

IV. THE COMMISSIONER’S POSITION

IS CONTRARY TO THE SOCIAL

SECURITY ACT’S DISABILITY AND

TRIAL WORK PERIOD PROVISIONS

AND THE “UNSUCCESSFUL WORK

ATTEMPT” REGULATIONS .................

V. THE COMMISSIONER’S INTERPRETATION

OF THE SOCIAL SECURITY ACT IS

INCONSISTENT WITH THE REHABILITATIVE

GOAL OF THE ACT AND RELATED

LEGISLATION TO PROVIDE

INCENTIVES FOR INDIVIDUALS

WITH DISABILITIES TO WORK ...........--. 17

CONCLUSION ... ccc cece ccc cc cc cccceccccccces 19

APPT 2. cc cccccccccecccccccsccccccesccces Al

TABLE OF AUTHORITIES

FEDERAL CASES

Bowen v. City of New York,

ET 9,10

City of Edmonds v. Oxford House, Inc.,

Eee 14,17

Cleveland v. Policy Mgmt. Sys.,

ET ee 13, 14, 19

Commissioner v. Clark,

EE ae 14

McDonald v. Bowen,

818 F.2d 559 (7th Cir. 1986) ................. nenilinetitiiiileniaiiaa 11

Newton v. Chater,

PENCE GUPUIEED dcitissisinentnssccccstnasentennatetnitomans 11

Salamalekis v. Comm’r of Soc. Sec.,

FTE 11

Schweiker v. Chilicky,

ERE ee 10

Sims v. Apfel,

ESE EE Oo 9

Walker v. Sec'y Health and Human Servs.,

1» by gs | ___, Eee ll

FEDERAL STATUTES AND REGULATIONS

The Americans with Disabilities Act ("ADA"),

Ce IRAE ccctrenicdemnerscsecsnssenesensvengeimatescecs 7

iV

Americans with Disabilities Act of 1990,

EEE 19

Consolidated Appropriations Act of 2001,

Pub. L. No. 106-554, § 115,

114 Stat. 2763 (ZOOL) ........00.-ceccesssscreccecseessersrerenssecsosesses 5

Economic Opportunities for Disabled Americans Act,

ral. L. GIBB ..nneccocnccoccessecesnsnsesscscsscscoscosnssosscscssensonsoss 17

Ticket to Work and Work Incentives

Improvement Act, Pub. L. 106-170 ...........:----ssseeseeenenees 17

42 U.S.C. § 402 (2001) ..........-c.ccssssssesensersensensenenrsncssneoensenes 4

42 U.S.C. § 405 (2001) ........:.cencessssssserserensensesenssecssenssnsnsees 9

42 U.S.C. § 422 (2001) ......0.0-c:ec-cssersereorercerenseersorsoresses 14, 19

42 U.S.C. § 423 (2OO1) .....0220.02-ceccvrvresecsesrenseresserseess 4, 13,19

42 U.S.C. § 426-1 (2001) ...........ceccscseseerereereerensseessrssnserensees 5

42 U.S.C § 12111 (2001) ..........cccecsserersersensenserseneenenecersneenes 7

Pub.L. 106-554, Section 115 (2001) .........-..ceseeseeeeeseeneeneess 5

20 C.F.R. § 404.1574 (2001) ....-...cececcereereeeeeneennnens 12, 15, 16

20 C_F.R. § 404.1592 (1998) ........cccccceceseereeseeensenensensnnnennes 19

20 C_F.R. § 416.924 (2001) ........c.cecesceceseeeeeneeseseeensnenenensnes 12

20 C.F.R. § 416.974 (2001) .......ccccceseseeseereerseeennnnennnnes 15, 16

20 C.F.R. § 416.975 (2001) .......cececescseeeseneeneenenensnnenees 15, 16

20 C.F.R § 1575 (2001) .........ccccsserersereerersensesssnsenesenses 15, 16

20 C_F.R. pt 404, subpt. P, app 1 (2001) ...........-seseseresneneees 15

es

Vv

Modification to the Disability Claims Process

Redesign .

64 Fed. Reg. 47218 (Aug. 30, 1999),

65 Fed. Reg. 36210 (June 7, 2000) .............cccccesececesseeeeees 9

66 Fed. Reg. 54047 (Oct. 25, 2001) oo.cccccccccccccecccecseeceeeeeees 12

65 Fed. Reg. 69116 (Nov. 15, 2000) .....cicccccccccccccseeeeeeeeeeee 14

65 Fed. Reg. 42774 (July 11, 2000) ......ccccccccecccssesssseeseseeen 14

LEGISLATIVE HISTORY

SI: Se neem 18

H. R. Conf. Rep. No. 106-478 1 (1999) oo... cece. 18, 19

H. R. Rep. No. 106-220 (1999) ooo cccccccccccccsscssceseceeeceeees 18

H. R. Rep. No. 106-393 (1999) ooo cccccccceeeceseeeeeeeeeees 18

MISCELLANEOUS

Matthew Diller, Dissonant Disability Policies:

The Tensions Between the Americans with

Disabilities Act and Federal Disability Benefit Programs,

76 Tex. L. Rev. 1003 (1998)

National Academy of Social Insurance (NASI),

Disability Income Policy in 2001 -

Excerpts from Balancing Security and

Opportunity: The Challenge of Disability

Income 45 (2001) http://www.nasi.org/publications2763/

Publications_list.htm?cat=Reports ..............cceceseseseseseeeees 4

vi

National Organization on Disability, Employment Facts

about People with Disabilities in the United States,

http://www.nod.org/conv/dsp_cont_item_view.cfm?

view T ype=search&contentld=14 (June 28, 2001) (citing

Nationa) Organization on Disability and

Louis Harris and Associates, 2000 N.O.D/Harris Survey

of Americans with Disabilities (2000) ............seeeseeee 6

Social Security Administration, Income of Disabled-Worker

Beneficiaries (2001),

http://www.ssa.gov/policy/programs/

disability/di_chart.pdf. ...........ccccseeseeeseeeeeeeeeereeesneeneenenens 4

Social Security Advisory Board, Charting the Future of

Social Security's Disability Programs: The Need

for Fundamental Change

http://www.ssab.gov/reports.html (2001) .............0+++ 9,11

Social Security Advisory Board, Disability Decision

Making: Data and Materials (2001),

http://www.ssab.gov/reports.html supra,

at 70, eee 5, 10, 11, 12

Mark C. Weber, Disability and the Law of Welfare:

A Post-Integrationist Examination,

2000 U. Tl. L. Rev. 889 (2000) ..........cccccscceeseenneees 7, 8,10

Edward Yelin & Miriam Cisternas,

The Contemporary Labor Market and the Employment .

Prospects of Persons with

Disabilities in Jerry L. Mashaw et al. eds.,

Disability, Work and Cash Benefits (1996) ...........-+++-+++ 7

No.00-1937

IN THE

Supreme Court of the United States

JO ANNE B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY,

Petitioner,

Vv.

CLEVELAND B. WALTON, ~

Respondent.

On Writ of Certiorari To The

United States Court of A

For the Fourth Circuit

BRIEF AMICI CURIAE OF AARP;

NOSSCR; ET AL.;

IN SUPPORT OF RESPONDENT

INTERESTS OF AMICI CURIAE”

This amici curiae brief is submitted on behalf of AARP, the

National Organization of Social Security Claimants’

Representatives (NOSSCR), the National Senior Citizens Law

Center (NSCLC), the American Association of le with

Disabilities, the American Council of the Blind (ACB), the

. This brief has been authored in its entirety by undersigned counsel for the

amici. No person or entity, other than the named amici and their counsel,

made any monetary contribution to the preparation or submission of this

brief.

2

American Occupational Therapy Association, The Arc of the

United States, the Bazelon Center for Mental Health Law, the

Brain Injury Association of America, the Disability Law Center

(Boston, Massachusetts), the Epilepsy Foundation®, the Helen

Keller National Center for Deaf-Blind Youths and Adults

(HKNC), the National Association of Developmental

Disabilities Councils (NADDC), the National Multiple

Sclerosis Society, the Title IT Community AIDS National

Network (TIICANN) and the United Cerebral Palsy

Associations. The statement of interest of amici is included in

the appendix to this brief.

By written consent of the parties, amici curiae submit this

brief in support of the Respondent.”

SUMMARY OF THE ARGUMENT

Federal disability benefit programs provide a low level! of

income support for individuals whose severe disabilities have

lasted or are expected to last twelve months. The programs

include numerous deterrents to leaving work to claim benefits.

While most people with disabilities want to work, many are

unable to secure employment, due to both the severity of their

disabilities and workplace discrimination.

Many applicants for federal disability programs do not

receive a final favorable decision for over a year. While

waiting for benefits, many applicants have no means of support

and live in abject poverty. to their dire need for income,

applicants may try unsuccessfully to return to work. People

with disabling impairments should not be denied disability

benefits for attempting to work when they have waited months

for a decision on their applications for benefits and have no

other means of survival.

The Commissioner’s interpretation of the Social Security

Act in this case punishes the person with an impairment of

2 Letters of consent from both parties have been filed separately with the

Clerk of the Court.

3

disabling severity which persisis for at least twelve months,

who attempts to return to work. The Commissioner’s position

is not only inconsistent with the plain meaning of the Act but

also is contrary to the unanimous view of all five circuit courts

of appeal which have considered the issue.

Individuals with disabilities who attempt to return to work

are often unsuccessful in maintaining that employment. The

Commissioner’ s interpretation of the Social Security Act would

result in the denial of benefits if the application is decided

during a brief period of an unsuccessful work attempt which

started within 12 months, but would result in the approval of

benefits if the application is decided by the agency after a brief

work attempt has failed. This unreasonable and capricious

result can be easily avoided by following the literal statutory

definition of disability which does not require the applicant to

cease working for twelve months.

_ The Commissioner’s position in the instant case is also

inconsistent with the rehabilitative goal of the Social Security

Act and related legislation to provide incentives for individuals

with disabilities to work. For example, the Ticket to Work

legislation is replete with Congressional statements

emphasizing the importance of encouraging people with

disabilities to work and not penalizing them for their efforts to

secure gainful employment.

ARGUMENT

I. DISABILITY BENEFITS BARELY LIFT MOST

BENEFICIARIES OUT OF POVERTY AND ARE NOT

A DISINCENTIVE TO WORK

The federal disability benefit programs provide a low level

of income support for individuals with severe disabilities.

These programs do not encourage people to leave work, but

rather provide a minimal safety net of support for individuals

whose disabilities impose limitations on their earnings capacity.

The Social Security Disability Insurance (“SSDI”) benefit

calculation is designed to provide a higher percentage of

4

earnings replacement for low earners than for higher earners.

For example, a worker who had been earning $30,000 per year

would receive SSDI benefits at approximately 43% of her

earnings, while a worker who had been earning $76,000 per

year would have an SSDI replacement rate of 28%. Despite the

fact that at lower earnings levels benefits can amount to

approximate.v half of prior earnings, this nevertheless often

results in a standard of living below poverty.” The average

monthly SSDI benefit in December 2000 was $786, just

slightly higher than the poverty threshold of $747 per month for

an individual.*

The program contains numerous deterrents to leaving work

to claim benefits. SSDI covers only those workers with a

record of fairly steady and recent work. The program imposes

a five-month waiting period, during which no benefits may be

received, regardless of the severity of the disability.” In

addition to the five-month waiting period for benefits, there is

a 24 month waiting period to obtain health care coverage

ȴ National Academy of Social Insurance (NASI), Disability Income Policy

in 200] - Excerpts from Balancing Security and Opportunity: The

Challenge of Disability Income 45 (2001)

http://www.nasi.org/publications2763/Publications_list.htm?cat=Reports.

* Id. Of course, without Social Security benefits, individuals with

disabilities would be much poorer. See Social Security Administration,

Income of Disabled-Worker Beneficiaries 22 (2001),

http://www.ssa.gov/policy/programs/disability/di_chart.pdf. While this

brief specifically addresses the SSDI program, the issues in thisce could

have an impact on other disabled beneficiaries who receive benefits under

Tittle II of the Social Security Act, such as disabled adult children, see 42

U.S.C. § 402(d)(1) (2001), and disabled surviving spouses, see 42 U.S.C.

§ 402(e)(1) and (f)(1) (2001). These programs use a definition of disability

similar to the SSDI program.

¥ 42 U.S.C. § 423(a)(1), (2) (2001).

5

through Medicare. These waiting periods “provide incentives

for persons to remain at work, if possible.’

The two most prevalent diagnoses leading to an award of

SSDI benefits in 1999 were impairments of the musculoskeletal

system (24%) and mental impairments (23%). Other major

diagnoses that led to an award of SSDI benefits in 1999 were

impairments of the circulatory system (12%) and neoplastic

disorders (cancer) (11%).”

The Supplemental Security Income program (“SSI”) also

provides benefits to persons with disabilities. SSI is not based

on the individual’s work record, but instead is a means tested

program, provided for those with no or low income and assets.

In 2002, the maximum federal SSI benefit level will be $545,

which is only about 70 percent of the official poverty threshold

for an individual under age 65. In most states, SSI recipients

are automatically entitled to health care coverage under the

Medicaid program. Nevertheless, with benefit levels below the

poverty line, most individuals would prefer reasonably

remunerative employment.”

The number of individuals newly awarded disability benefits

through the SSDI and SSI programs has been fairly steady since

the end of the recession in the early 1990s. Death and shifting

to retirement benefits at age 65 are the main reasons people

stop receiving disability benefits. The proportion of recipients

© NASI, supra. The 24 month waiting period for Medicare benefits does

not apply to individuals with end stage renal disease or amyotrophic lateral

sclerosis. 42 U.S.C. § 426-1(b) (2001); Consolidated Appropriations Act

of 2001, Pub. L. No. 106-554, § 115, 114 Stat. 2763 (2001).

” Social Security Advisory Board, Disability Decision Making: Data and

Materials 43 (2001), http://www.ssab.gov/reports. html.

© NASI, supra, at 46.

6

who medically recover or return to work has always been

relatively small.

IIl.MOST PEOPLE WITH DISABILITIES WANT TO

WORK BUT HAVE GREAT DIFFICULTY FINDING

JOBS

Most Americans with disabilities want to work but are not

able to secure employment, see H. R. Rep. No. 106-220, at 5

(1999), due to both the severity of their disabilities and barriers

to employment. A Harris Poll conducted in 2000 found that

only 32% of people with disabilities of working age (18 to 64)

worked full or part-time, Compared to 81% of people without

disabilities. The more severe the disability and the older the

individual, the less likely that person is to be employed. The

unemployment rate for people with disabilities has remained

relatively constant over the past fourteen years. Among those

not working, two out of three le with disabilities stated that

they would prefer to work.

While people with disabilities who are able to work are

better off financially than those who do not work at all, people

with disabilities who are employed earn far less than the non-

disabled population. Estimates of earnings of workers with

disabilities indicate that they earn about forty percent less than

those without disabilities. Even those persons with disabilities

who work full time have a poverty rate three times that of full

” NASI, supra, at 35-38.

12 National Organization on Disability, Employment Facts about People

with Disabilities in the United States,

http://www.nod.org/cont/dsp_cont_item_view.cfm?viewT ype=search&c

ontentIid=14 (June 28, 2001) (citing National Organization on Disability

and Louis Harris and Associates, 2000 N.O.D./Harris Survey of Americans

with Disabilities (2000) (hereinafter N.O.D/Harris poll).

7

time workers without disabilities“ Moreover, people with

disabilities tend to have less education than persons without

disabilities, further compounding their difficulty in securing

employment.

Individuals with disabilities encounter “widespread

discrimination” from employers who tend to underestimate

their productivity and “overstate the limiting effects of

impairments.” More than one third of employed people with

disabilities (36%) surveyed by the Harris Poll in 2000 reported

that they had encountered discrimination in the workplace

because of their disabilities, such as being refused a job due to

their disabilities, being given less responsibility than co-

workers, being paid less than other workers with similar skills

in similar jobs, and being refused a job promotion.”

The Americans with Disabilities Act (“ADA”), 42 U.S.C.

§§ 12101-12213, passed in 1990, prohibits discrimination by

employers against persons with disabilities, and requires

employers to provide reasonable accommodations for

employees with disabilities’ While the ADA is helpful to

some persons with disabilities, the ADA has neither eliminated

1 Id.; Mark C. Weber, Disability and the Law of Welfare: A Post-

Integrationist Examination, 2000 U. Ill. L. Rev. 889, 898, 911 (2000).

12 Matthew Diller, Dissonant Disability Policies: The Tensions Between the

Americans with Disabilities Act and Federal Disability Benefit Programs,

76 Tex. L. Rev. 1003, 1012 (1998); Edward Yelin & Miriam Cisternas,

The Contemporary Labor Market and the Employment Prospects of

Persons with Disabilities at 50 in Jerry L. Mashaw et al. eds., Disability,

Work and Cash Benefits (1996).

Diller, supra, at 1012.

4 N.O.D Marrs poll, supra.

1? The employment discrimination provisions in Title I of the ADA are

applicable to employers with 15 or more employees. 42 U.S.C.

§ 12111(S)A) (2001).

8

discrimination nor obviated the “[sJevere levels of

unemployment and poverty” that persons with disabilities

experience.”

Due to the difficulty persons with disabilities experience in

securing employment, most people whose claims for disability

benefits are denied remain out of the work force. Furthermore,

studies of individuals who were terminated from disability

benefits in the early 1980s and did not get reinstated found that

many such persons remained out of work years later.” These

studies demonstrate “the magnitude of the barriers to work

faced by” persons with disabilities.”

In the instant case, the Commissioner argues that even

though the Social Security Act does not require the applicant to

be out of work for 12 months in order to qualify for benefits,

the agency has chosen to deny benefits to applicants with

severe disabilities who attempt to go back to work less than a

year from their date of application but prior to a determination

of disability. (Petitioner's Brief at 30-32.) With all the

disincentives that exist for people with disabilities to attempt to

work, there is no justification for the Commissioner to add

another disincentive as she attempts to do here, which she

acknowledges is not required by the text of the Act.

Ill. DESTITUTE APPLICANTS WITH DISABLING

IMPAIRMENTS MAY TRY TO RETURN TO

WORK IN ORDER TO SURVIVE BECAUSE OF

LENGTHY DELAYS IN AWARDING BENEFITS

Many applicants wait numerous months, or even years, for

a favorable decision on their applications for disability benefits.

Lacking any means of support, some disabled applicants

attempt to reenter the workforce in order to pay their bills and

1° Weber, supra, at 890-891.

1” Diller, supra, at 1071.

1d.

9

survive. However, due to their disabilities, many applicants

saw to work are unsuccessful and become destitute as a

result.

Claimants seeking either SSDI or SSI may a through

a four step administrative process to obtain a final decision on

their disability applications. Claims are considered first on an

initial application. A claimant denied benefits may seek

reconsideration. If denied again, a claimant may request a de

novo hearing before an SSA administrative law judge (ALJ).

If denied again, a claimant may request review of the hearing

decision by SSA’s Appeals Council as a prerequisite for

seeking judicial review in federal district court. Additionally,

the Appeals Council may perform “own motion” review of an

ALJ decision which is favorable to a claimant. A claimant

receiving a final administrative decision denying benefits may

seek judicial review in the federal district court.”

In FY 2000, an average wait for an ALJ decision on an

SSDI claim was approximately 437 days from the initial date

of application, or over one year and two months.” In that year,

1 See generally Sims v. Apfel, 520 U.S. 103, 105 (2000); Bowen v. City of

New York, 476 U.S. 467, 472 (1986); 42 U.S.C. § 405(g) (2001). The

Social Security Administration is experimenting in some states with

eliminating ‘he reconsideration stage and also eliminating for some

claimants the request for review to the Appeals Council. Modifications to

the Disability Determination Procedures; Disability Claims Process

Redesign Prototype, 64 Fed. Reg. 47218 (Aug. 30, 1999), 65 Fed. Reg.

36210 (June 7, 2000).

2 In FY 2000, the average processing time from the date of application to

the date of an initial decision on SSDI benefits was 104 days and for SSI

benefits was 120 days. The average processing time for reconsideration of

an unfavorable decision for SSDI was approximately 63 days. (The time

for reconsideration of an SSI claim was not reported.) The average

processing time for an ALJ hearing in FY 2000 was 274 days from the date

of a hearing request, down from its peak of 386 days in 1997. Social

Security Advisory Board, Charting the Future of Social Security's

(continued...)

10

approximately 255,000 individuals were awarded benefits at

the ALJ level. If a claim is appealed to the Appeals Council,

the wait for a final administrative decision stretches well

beyond another year, though only a smal] number of people

(under 2,500 in FY 2000) are awarded benefits by the Appeals

Council.

While awaiting a decision, many applicants are destitute and

live in abject poverty. The Court has recognized that Social

Security disability benefits and SSI provide “the very

necessities of life,” and that the wrongful denial of these

benefits imposes “trauma” which is “beyond what anyone of

normal sensibilities would wish to see imposed on innocent

disabled citizens.” Schweiker v. Chilicky, 487 U.S. 412,428-29

(1988). The Court has stated that the harm from wrongful

denials of Social Security disability benefits can be

“irreparable.” Bowen v. City of New York, 476 U.S. 467, 483-

484 (1986).

In the past, state general assistance programs often provided

income support for individuals with chronic illnesses who did

not receive federal disability benefits. Recently, many states

have either abolished general welfare programs for adults

unable to work or placed severe restrictions on how long a

person may receive aid.’ Even in states that have maintained

general assistance, the amounts of benefits are quite low.

Applicants with disabling impairments necessarily are

uncertain about whether they will receive benefits. Aithough

2 continued)

Disability Programs: The Need for Fundamental Change 7 (2001),

http://www.ssab.gov/reports.html; Disability Decision Making, supra, at

80-81, 86.

2. In FY 2000, the average processing time for an Appeals Council decision

was 505 days from the request for review. Jd. In some cases, benefits are

not received promptly after a favorable decision is issued.

2 Weber, supra, at 939.

1]

66% of people who appeal to the ALJ level are awarded

benefits at that stage, individuals cannot know whether they

will be successful in their pursuit of benefits.

Moreover, many individuals do not apply for disability

benefits for a considerable period of time after they have

stopped working. Some may be unaware of the programs,

while others may down their assets prior to applying.

Still others hold off applying for benefits because they are

hoping for medical improvement. Therefore, by the time

y apply for benefits, their financial situations may be quite

dire

Needing some income to survive, applicants may try to

return to work while awaiting disability benefits, even though

they may endure extreme pain or further aggravate their

disabilities Disabled applicants should not be denied

Disability Decision Making, supra, at 70; Charting the Future, supra, at

3-4.

Thus, for example, in the five cases in which the circuit courts have

agreed that an individual is eligible for a trial work period before the

expiration of 12 months without SGA, each applicant had waited between

four and eight months after ceasing work to apply for disability benefits.

Mr. Walton was terminated from his employment as an in-school

suspension teacher on October 31, 1994, and he applied for benefits on

April 12, 1995. In Salamalekis v. Comm’r of Soc. Sec., 221 F.3d 828 (6th

Cir. 2000), the claimant stopped working on approximately April 24, 1991

and applied for benefits on October 1, 1991. In Newton v. Chater, 92 F.3d

688 (8th Cir. 1996), the claimant applied on April 22, 1993, alleging an

onset date of October 30, 1992. In Walker v. Sec’y Health and Human

Servs., 943 F.2d 1257 (10th Cir. 1991), Mr. Walker applied for benefits on

October 2, 1987, alleging disability since February 1987. In McDonald v.

Bowen, 818 F.2d 559 (7th Cir. 1986), Ms. McDonald stopped working on

October 25, 1982 and applied for benefits on February 28, 1983.

» See, e.g., Walker v. Sec’y Health and Human Servs., 943 F.2d at 1258

(applicant returned to work “out of economic necessity”); McDonald v.

(continued...)

12

disability benefits when they have waited: months for favorable

decisions and attempt to work because they have no other

means of survival.

IV. THE COMMISSIONER’S POSITION _IS

CONTRARY TO THE SOCIAL SECURITY ACT’S

DISABILITY AND TRIAL WORK PERIOD

PROVISIONS AND THE “UNSUCCESSFUL

WORK ATTEMPT” REGULATIONS

The Social Security Act defines disability as the “inability to

engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which

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

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

months.” 42 U.S.C. § 423(d)(1)A) (2001). The

Commissioner determines whether individuals are disabled by

applying a five step sequential evaluation process that asks the

following questions: (1) Is the individual engaging in

substantial gainful activity (“SGA”)? (2) Does the individual

have a severe impairment? (3) Does the individual have an

impairment that meets or equals (i.e., is equivalent to) an

impairment described in SSA’s Listing of Impairments? (4)

Can the individual, despite any functional limitations imposed

by a severe impairment, perform work that he or she did in the

past? (5) Can the individual do any other type of work?

2(__ continued)

Bowen, 818 F.2d at 560 (applicant returned to work “because she needed

the income” and as a result suffered back pain).

28 Beginning January 2002, earnings at or above $780 per month will be

considered SGA for persons with disabilities other than blindness. 66 Fed.

Reg. 54047 (Oct. 25, 2001). For blind individuals, the level is higher. See

20 CFR. § 404.1574(b) (2001).

2! Disability Decision Making, supra, at 95-98. This five step process

applies to adult applicants. 20 C.F.R. § 416.924 (2001).

13

The Commissioner concedes that “[a]s a matter of grammar,

the court of s [for the Fourth Circuit] is correct that the

phrase ‘which has lasted or can be expected to last’ in Section

423(d)(1)(A) modifies the word ‘impairment.’” (Petitioner's

Brief at 30.) Further, the Commissioner acknowledges that the

statute contains no explicit requirement that the inability to

engage in SGA must last 12 months. (/d.)

The Commissioner contends that because the Act does not

contain a duration requirement for the inability to engage in

SGA, the agency is free to interpret the statute to require a

duration requirement of 12 months. She argues that this

interpretation is consistent with the requirement in the Act that

the impairment be severe. (Petitioner’s Brief at 30-32.) She

suggests that without the 12 month duration requirement for the

inability to engage in SGA, benefits would have to be paid for

short term disabilities that do not meet the severity

requirements of the Act. (Jd. at 40.)

The essential fallacy of the Commissioner’s position is that

it ignores the fact that an individual may have an impairment of

disabling severity for the statutorily mandated 12 months, yet

attempt to return to work within 12 months. There is no

dispute 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.

The Commissioner’s position punishes the individual with

an impairment of disabling severity which continues at that

level of severity for at least 12 months, but who nevertheless

to return to work. The Social Security Act makes

clear that the individual is encouraged to “test the waters”

without fear that by doing so he or she will be denied basic

income maintenance. In discussing trial work periods in the

— brief to the Court in Cleveland v. Policy Mgmt.

ys., 526 U.S. 795 (1999), the Solicitor General (and the

General Counsel for the Social Security Administration)

a. “Congress recognized that persons who

egitimately apply for and receive Social Security benefits may

nevertheless be or become able to work.” (Brief for the United

14

States at 15, Cleveland v. Policy Mgmt. Sys. 526 U.S. 795, No.

97-1008 (1999)).

Here, the Commissioner argues, contrary to the unanimous

view of five circuit courts of appeal,” that such a trial work

period can only commence not, as stated in the statute “with the

month in which (the claimant) becomes entitled to disability

insurance benefits,” but rather after the claimant has ceased

working for twelve months and thus been entitled to SSDI

benefits for seven months. The additional seven months of

waiting is not set forth in the statutory provision creating trial

work periods. See 42 U.S.C. § 422(c)(3) (2001).

Since there is no dispute that the plain meaning of the statute

is clear, i.e. the 12 month durational requirement applies to the

impairment and not to work activity, it is improper for the

Commissioner to interpret the statute in a manner inconsistent

with the plain meaning of the statute. The durational

requirement in the definition of disability “is sensibly read

‘narrowly’” and may not be expanded by the Commissioner in

a manner inconsistent with the Congressional goals underlying

trial work periods. City of Edmonds v. Oxford House, Inc.,

514US. 75.732 (1995)(quoting Commissioner v. Clark, 489

U.S. 726, 739 (1989)).

The Commissioner concedes in a footnote that under her

“unsuccessful work attempt” regulations, if the claimant’s work

attempt lasts 6 months or less, then it will not prevent the

28 In addition to the holding by the Fourth Circuit in the instant case, this

is the unanimous judgment of all circuits that have addressed the issue,

listed supra at n.24. The Commissioner acquiesced in all of these other

decisions. 65 Fed. Reg. 42774 (July 11, 2000); 65 Fed. Reg. 69116 (Nov.

15, 2000).

22 For a discussion of the rehabilitative goals of the work incentives in the

Social Security Act, see infra at Section V.

15

claimant from being entitled to disability benefits.”

(Petitioner’s Brief at 27, n.8.) Frequently, an individual,

despite disabling impairments, attempts to return to work

within 12 months, earns at a rate of pay which would constitute

SGA for a month or more, but is unsuccessful in maintaining

that employment. Under the Commissioner’s theory of this

case, such a person would not be eligible for either SSDI or SSI

if the case came up for adjudication during the brief work

attempt; the claimant would automatically be denied at step one

of the sequential analysis of disability.

An example will illustrate the inherent difficulty with the

Commissioner’s position. Assume that an individual has

diabetes with progressive neuropathy in both lower extremities,

seriously impairing her ability to stand and walk, despite

compliance with prescribed diet and medication. In January

2000, she stopped work, due to her medical condition, and filed

“concurrent” claims for SSDI and SSI benefits. Her

applications for benefits were denied initially and on

reconsideration. She promptly appealed each denial of her

benefits. She was off work January through November 2000.

However, she went back to work in December 2000 and earned

$1,000 in that month. She was still working and earning at the

same rate Selig Bn age when the case came up for a

determination of disability at an ALJ hearing. Under the

Commissioner’s position, she must be adjudicated not disabled

because she earned at a level of SGA within 12 months of onset

even if the ALJ would find that her condition meets a Listing.’

The Commissioner posits that, although she clearly has had an

2 More specifically, the Commissioner's regulations provide that work of

three months or less will be deemed an “unsuccessful work attempt"

(“UWA”) if it ended or was reduced below the level of SGA because of an

impairment or the removal of special accommodations. If the work lasted

between three and six months, it may be an UWA if any one of a number

of factors was present, such as excessive absenteeism because of the

impairment. 20 C.F.R. §§ 404.1574(c), 404.1575(d), 416.974(c),

416.975(d) (2001).

2! 20 C.F.R. pt. 404, subpt. P, app. 1 at § 9.08A (2001).

16

impairment of disabling severity for the requisite 12 months,

she was not out of work for the requisite 12 months, and hence

she is entitled to nothing. Presumably, if she stops working in

the future, she must start the 12 month clock running again to

become eligible for benefits. This is the essence of the

Commissioner’s position.

However, the Commissioner acknowledges, as she must, that

this work might ultimately constitute an “unsuccessful work

attempt.” (Petitioner’s Brief at 27, n.8.) Not surprisingly,

persons with disabling impairments who attempt to return to

work often fail within a relatively short period of time. Even

though they may earn enough money in a month that it would

constitute SGA, such SGA is not counted if the work was so

short that it constituted an “unsuccessful work a, 20

C.F.R. §§ 404.1574(c), 404.1575(d), 416.974(c), 416.975(d)

(2001). In that event, the work will be disregarded and will not

interrupt a period of disability. Under the rules, a work attempt

of three months or less will be deemed unsuccessful if the

person was compelled to stop because of her disability, and a

work attempt between three and six months may also be

deemed unsuccessful.”

Significantly, to be eligible for an unsuccessful work

attempt, the disabled person must have had “a significant break

in the continuity of [his or her] work before [SSA] will

consider that [the person] began a work attempt that later

proved unsuccessful.” 20 C.F.R. §§ 404.1574(c)(2),

404.1575(d)(2), 416.974(c)(2), 416.975(d)(2) (2001).

However, the Commissioner’s regulations do not require that

the “significant break” be for 12 continuous months. Instead,

the regulations only require that the disabled individual have

discontinued work for at least 30 consecutive days. Id.

Thus, if the disabled claimant in the above hypothetical

example were forced by her impairments to stop work in

January 2001, even if she made over the SGA minimum that

month, her work attempt would have been “unsuccessful” and

See n.30, supra.

17

the SGA in Dec. 2000 and Jan. 2001 would be disregarded. If

her case had come up for adjudication in February 2001, rather

than January 2001, the Commissioner concedes that she would

have to be found disabled although she did return to work in

less than 12 months.

The only way to avoid the capriciousness of this result is to

follow the literal statutory definition of disability which the

Commissioner concedes grammatically requires the disabling

impairment (rather than the period of not working) to last or be

expected to last 12 months. The Court of Appeals for the

Fourth Circuit correctly decided in this case that the statute

provides benefits for applicants with severe disabilities of 12

months’ duration. See City of Edmonds v. Oxford House Inc,

514 US. at 732.

Vv. THE COMMISSIONER’S INTERPRETATION OF

THE SOCIAL SECURITY ACT IS INCONSISTENT

WITH THE REHABILITATIVE GOAL OF THE

ACT AND RELATED LEGISLATION TO

PROVIDE INCENTIVES FOR INDIVIDUALS

WITH DISABILITIES TO WORK

‘Congress has repeatedly recognized not only that persons

with disabling impairments can and do work, but that they

should be encouraged to do so and should not be penalized.

Without attempting to be exhaustive, this federal policy is

demonstrated in a number of statutes including various

rovisions in the Social Security Act. For example, in the

onomic Opportunities for Disabled Americans Act, Pub. L.

99-643, Congress amended the Social Security Act to provide

various incentives for persons who receive disability benefits

to attempt to work.

Congress revisited this issue in 1999 in the Ticket to Work

and Work Incentives Improvement Act, Pub. L. 106-170. The

goal of the legislation was to “help individuals with disabilities

go to work,” by removing some of the work disincentives in the

® For additional citations, see Respondent's Brief, §§ 1(B) and II(B).

18

SSDI and SSI programs, S. Rep. No. 106-37, at 2 (1999), and

creating new work incentives as well. The law provides

extended Medicare and Medicaid benefits for persons receiving

SSDI and SSI respectively who attempt to rejoin the workforce,

in order to provide individuals with disabilities “with

meaningful nities to work.” H. R. Conf. Rep. No. 106-

478, at 1 (1999).

In passing this legislation, Congress was critical of SSA’s

implementation of the provisions of the Act that were designed

to encourage individuals with disabilities to return to work:

Policymakers and advocates for the disabled have long

argued that SSA’s work incentives are complex, difficult

to understand, and poorly implemented. They contend

that some of the reasons for the high rate of

unemployment among disabled beneficiaries include

confusing rules, arcane procedures, and disincentives built

into the Social Security and SSI programs. They note

surveys that show that most people with disabilities who

are of working age want to work, and maintain that the

numerous Federal regulations and program rules have the

perverse effect of discouraging otherwise qualified and

eager job seekers with disabilities from seeking

employment.

H. R. Rep. No. 106-220, at 5 (1999). Congress stated that

among the “obstacles” faced by individuals with disabilities

who attempt to work are the “protracted application process”

and the fear of losing benefits “if their work attempts were

unsuccessful.” H. R. Rep. No. 106-393, at 38 (1999).

The Commissioner argues that the applicant’s ability to

engage in SGA is “evidence” that the individual is not disabled.

(Petitioner’s Brief at 49.) However, this is not necessarily true.

As noted at 13-14, work activity which constitutes either

a trial work period or an unsuccessful work attempt is not

_ evidence of nondisability. Similarly, this attitude was exactl

what Congress disapproved of in the Ticket to W

islation. Congress mandated that for individuals using a

icket to Work,” “no work activity engaged in by the

19

individual may be used as evidence that the individual is no

longer disabled.” H. R. Conf. Rep. No. 106-478, at 23 (1999).

In finding that the purpose of the Americans with

Disabilities Act of 1990, Pub. L. 101-336, of encouraging

persons with disabilities to work, is not inconsistent with those

same persons being able to obtain SSDI or SSI, the Court

unanimously recognized that:

Further, the SSA sometimes grants SSDI benefits to

individuals who not only can work, but are working. For

example, to facilitate a disabled person’s reentry into the

workforce, the SSA authorizes a

9-month trial-work period during which SSDI recipients

may receive full benefits. See 42 U.S.C. §§ 422(c),

423(e)(1); 20 CFR § 404.1592 (1998).

Cleveland v. Policy Mgmt. Sys., 526 U.S. at 805. The Court

should reject the Commissioner’s position in the instant matter,

because it is contrary to the will of Congress as repeatedly

expressed in the Social Security Act and other related

legislation.

CONCLUSION

For the reasons stated, amici urge the Court to affirm the

decision below.

Dated: December 21,2001 Respectfully Submitted,

Robert E. Rains *Rochelle Bobroff

Professor of Law AARP Foundation Litigation

The Dickinson School

of Law Michael Schuster

The Pennsylvania State AARP

University

150 South College Street 601 E Street, NW

Carlisle, PA 17013 Washi , DC 20049

(717) 240-5241 (202) 434-2060

*Counsel of Record Counsel for Amici Curiae

Al

APPENDIX

INTERESTS OF AMICI CURIAE

AARP is a nonprofit membership organization of over 35

million persons age fifty and older dedicated to addressing the

needs and interests of older Americans. Over 2.8 million

people between the ages of fifty and sixty-five receive Social

Security Disability Insurance benefits. Approximately 1.25

million older Americans receive Suppiemental Security Income

as disabled individuals. Through education, advocacy, and

service, and by promoting independence, dignity, and purpose,

AARP seeks to enhance the quality of life for individuals of all

ages. AARP has filed numerous briefs before this Court in

cases involving people with disabilities, including Sims v.

Apfel, 530 U.S. 103 (2000) and Cleveland v. Policy

Management Systems Corp, 526 U.S. 795 (1999).

The National Organization of Social Security Claimants’

Representatives (NOSSCR) is a non-profit corporation. While

most NOSSCR members are attorneys in private practice,

others work in programs which provide free legal services to

the poor. NOSSCR members regularly represent people

claiming benefits (usually, but not always, disability benefits)

in administrative proceedings before the Social Security

Administrative (SSA). NOSSCR members also file actions in

federal court against the Commissioner of SSA (currently

JoAnne B. Barnhart), appealing the final administrative denial

of clients’ claims for such benefits. These disability benefits

have a at pet by the Congress through two separate but

interrel So Social Security Disability Insurance

benefits (SSDI) under Title II of the Social Security Act and

Supplemental Security Income (SSI) under Title XVI of the

Social Security Act. This case will have profound implications

for our clients who attempt to return to work within 12 months

despite having impairments of disabling severity.

The National Senior Citizens Law Center (NSCLC) is anon-

profit organization which advocates nationwide to promote the

independence and well-being of low income elderly

individuals, as well as persons with disabilities, with a

A2

particular emphasis on women and racial and ethnic minorities.

Since its founding in 1972, NSCLC has recognized disability

benefits provided under the SSDI and SSI programs as essential

to the welfare of the low income elderly individuals who are the

primary focus of NSCLC's efforts. In particular, NSCLC has

long advocated and litigated in su of individuals who

attempt to return to work, but fear the loss of disability benefits

which will be essential to survival if the work attempt fails.

The American Association of People with Disabilities

(AAPD) is a national membership organization working for

economic and political empowerment of children and adults

with disabilities. AAPD seeks to promote policies and

tices that advance the goals of the Americans with

isabilities Act: full participation, independent living,

economic self-sufficiency, and equality of opportunity.

The American Council of the Blind (ACB) is a national

nonprofit, consumer organization of the blind, with seventy

affiliates and members in all fifty states. ACB's mission is to

improve the y eed of life, equality of - remnpe and

iniesentenen or all persons who are blind. To that end, ACB

seeks to educate policy makers about the needs and capabilities

of people who are blind, and to assist individuals and

organizations wishing to advocate for programs and policies

that meet the needs of people who are blind, or visually

impaired. SSDI and SSI currently assist many people in this

country who are blind or visually impaired.

The American Occupational Therapy Association (AOTA)

is the national professional association of over 40,000

occupational — and occupational therapy assistants as

well as students of the profession. The AOTA mission is to

support the contributions of occupational to health,

well-being, productivity and quality of life. ional

ists provide treatment and intervention for people with

physical and mental disabilities to promote full participation in

society and maximum achievement of human tial.

Occupational therapy can assist individuals with disabilities in

identifying work limitations and potential. AOTA advocates

on behalf of the profession and the public through support of

A3

positive public policy such as that contained in the Americans

with Disabilities Act and disability income support programs.

The Arc of the United States (The Arc), through its nearly

1,000 state and local chapters, is the largest national voluntary

organization in the United States devoted solely to the welfare

of the more than seven million children and adults with mental

retardation and related developmental disabilities, and their

families. Since its inception, The Arc has participated activel

in the formulation of public policy with respect to the rights of,

and services, supports, and benefits for, people with mental

retardation and related developmental disabilities. The Arc has

participated as amicus curiae in numerous cases before this

Court that involve the rights of people with disabilities.

The Bazelon Center for Mental Health Law is a national

public interest organization founded in 1972 to advocate for the

rights of individuals with mental disabilities. The Center has

engaged in litigation, administrative advocacy, and public

education to promote opportunities for individuals with mental

disabilities to achieve independence and self-determination.

Founded in 1980, the Brain Injury Association of America

is the nation's only nonprofit working for le with brain

injury and their families. With more than 40 Chartered State

Affiliates, hundreds of local chapters and support groups across

the nation, the Association's mission is to create a better future

through brain injury prevention, research, education and

advocacy.

The Disability Law Center is the authorized Protection and

Advocacy agency for the Commonwealth of Massachusetts.

The Disability Benefits Project Support Unit, housed at the

Law Center, provides technical support and training to public

and private advocates representing Social Security claimants.

Since 1985, work issues of concern to Social Security claimants

and recipients have been a priority. Most direct representation

provided by Project staff involves return to work issues.

The Epilepsy Foundation® is the sole national, charitable

voluntary health organization dedicated to advancing the

A4

interests of the more than two million people with epilepsy and

seizure disorders. Epilepsy is a chronic brain disorder

characterized by recurring seizures. Despite advances in

medical knowledge and technology, many people with epilepsy

are unable to engage in gainful employment or participate in

many routine daily activities, and therefore incur significant

medical costs as a result of having epilepsy. For these people,

access to Social Security benefits is crucial to their very

survival. The Foundation has, from its inception, advocated in

the legislature and in the courts to ensure that this access is

protected.

Headquartered in Sands Point, NY, the Helen Keller

National Center for Deaf-Blind Youths and Adults (HKNC)

provides short term comprehensive vocational rehabilitation

training and assistance to students for job and residential

placements. Services in the field include 10 regional offices,

some 43 affiliated ies, a National Training Team, Older

Adult Program, the National Technical Assistance Consortium

for Children and Young Adults Who Are Deaf-Blind Project,

and D-B LINK. *s role is to ensure that people who are

deaf-blind receive the skills training and supports necessary to

enable them to live and work in the community of their choice.

The National Association of Developmental Disabilities

Councils (NADDC) is a national, non-profit organization

representing State Councils on Developmental Disabilities that

work for change on behalf of people with developmental

disabilities and their families. It promotes national policy to

enhance the quality of life for all people with

disabilities, enabling them to exercise self-determination and be

independent, productive, integrated and included in all facets

of community life. For many with deve

disabilities, access to SSDI and SSI is critical for meeting their

basic needs. NADDC is committed to ensuring proper access

to these benefits.

The National Multiple Sclerosis Society is dedicated to

ending the devastating effects of multiple sclerosis. The

National MS Society is the only national voluntary MS

organization that meets the standards of all major agencies that

AS

rate nonprofit groups. The Society supports more MS research

and serves more people with MS than any national voluntary

MS organization in the world. Through its 50-state network of

chapters, the Society funds research, furthers education,

advocates for people with disabilities, and provides a variety of

empowering programs for the third of a million Americans who

have MS and their families.

The Title 1 Community AIDS National Network

(THCANN) is a national nonprofit ization, which

represents the interests of those disabled and other HIV-

positive persons served by state AIDS Drug Assistance and

other funded under Title II of ey Sen White Act.

THC provides advocacy, training, and policy/legislative

support for better drug and other health care access and

strengthened disability benefits protections for disabled and

other HIV-positive Americans.

United Cerebral Palsy Associations (UCP) represents over

100 affiliates in 43 states. The mission of UCP is to advance

the indepexidence, productivity and full citizenship of people

with cerebral palsy and other disabilities.