Petition for Writ of Certiorari — Barnhart v. Thomas

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In the Supreme Court of the United States

JOANNE B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY, PETITIONER

PAULINE THOMAS

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

THEODORE B. OLSON

Solicitor General

Counsel of Record

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

JEFFREY A. LAMKEN

Assistant to the Solicitor

General

WILLIAM KANTER

WENDY M. KEATS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

— EEE

QUESTION PRESENTED

Titles II and XVI of the Social Security Act define

disability as the “inability to engage in any substantial

gainful activity by reason of any medically determin-

able physical or mental impairment which can be

expected to result in death or which has lasted or can

be expected to last for a continuous period of not less

than 12 months.” 42 U.S.C. 423(d)(1)(A); 42 U.S.C.

1382c(a)(3)(A). The Act further provides that a claim-

ant “shall be determined to be under a disability only if

his physical or mental impairment or impairments are

of such severity that he is not only unable to do his

previous work but cannot, considering his age, educa-

tion, and work experience, engage in any other kind of

substantial gainful work which exists in the na-

tional economy.” 42 U.S.C. 423(d)(2)(A); 42 U.S.C.

1382c(a)(3)(B). Under the Act, “work which exists in

the national economy” means “work which exists in sig-

nificant numbers either in the region where such in-

dividual lives or in several regions in the country.”

42 U.S.C. 423(d)(2)(A); 42 U.S.C. 1382¢(a)(3)(B). The

question presented is:

Whether the Commissioner of Social Security may

determine that a claimant is not “disabled” within the

meaning of the Act because the claimant remains physi-

cally and mentally able to do her previous work, with-

out considering whether that particular job exists in

significant numbers in the national economy.

(I)

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdietion 1

Statutory provisions involved 2

Statement 2

A. The statutory and regulatory framework ............... 2

B. The proceedings in this case 9

Reasons for granting the petition 16

A. The Thira Circuit’s decision conflicts with

decisions of four other courts of appeals .................. 17

B. The court of appeals erred in rejecting the

Commissioner’s longstanding interpretation 20

C. The court of appeals’ construction of the Act

has significant programmatic implications 28

Conclusion 30

TABLE OF AUTHORITIES

Cases:

Bowen v. Yuckert, 482 U.S. 137 (19877 4. 5, 6, 17

20, 21, 24. 28

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

795 (1999) 6

FTC v. Mandel Bros., Inc., 359 U.S. 385 (1959) ............... 21

Garcia v. Secretary of HHS, 46 F.3d 552 (6th

Cir. 1995) 15, 17, 18, 19, 22

Her ler v. Campbell, 461 U.S. 458 (1983) ............ 6, 20, 21, 26

Knight v. Chater, 55 F.3d 309 (7th Cir. 1995) 20

Kolman v. Sullivan, 925 F.2d 212 (7th Cir. 1991) ........... 20

May v. Gardner, 362 F.2d 616 (6th Cir. 1966) .................. 3,5

Oregon Dep't of Revenue v. ACF Indus., 510 U.S.

332 (1994) 24

Pass v. Chater, 65 F.3d 1200 (4th Cir. 1995) . 16, 17,

19, 22, 26

(IID)

Cases—Continued:

Quang Van Han v. Bowen, 882 F.2d 1453 (9th Cir.

1989) 15, 16-17,

18, 22

Rater v. Chater, 73 F.3d 797 Cir. 1996) — 15, 17, 20, 22

Schweiker v. Gray Panthers, 153 U.S. 34 (1981)

Sims v. Apfel, 530 U.S. 103 (2000)

Williams v. Taylor, 529 U.S. 362 (2000)

Statutes and regulations:

Social Security Act, 42 U.S.C. 301 et seg. 2

Tit. II. 42 U.S.C. 401 et seq. passim

42 U.S.C. 405(a) 5

42 U.S.C. 405(b) 9

passim

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

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

Tit. XVI, 42 U.S.C. 1381 et seq.

42 U.S.C. 1382e(aX3)(A)

42 U.S.C. 188205) 5, 26

Social Security Amendments of 1956, ch. 836, § 103,

70 Stat. 815 3

Social Security Amendments of 1967, Pub. L. No.

90-248, § 158(b), 81 Stat. 868 4

Social Security Amendments of 1972, Pub. L. No.

92-608, Tit. III, § 301, 86 Stat. 1465

Social Security Independence and Program Improve-

ments Act of 1994, Pub. L. No. 103-296, §§ 101-106,

108 Stat. 1465-1477

20 C. F. R.:

Pt. 404

Section 404. 150 20b) (1961) 3,

Section 404. 15020 b) (1969)

Section 404.1520

Section 404.1520(a)

Section 404.1520(b)

Section 404. 15200 e)

Section 404. 15 200d)

2 U te to

Page Statutes and regulations Continued:

Section 404. 15200)

Section 404.1520(f)

Sections 404. 1560-404. 1568

Section 404. 15600b)

Section 404. 15600 c)

Section 404.1561

Pt. 416

Section 416.920

Section 416.920(a)

Section 416.920(b)

Section 416.920(c)

Section 416.920(d)

Section 416.920(e) 7,17

Section 416.920(f) 7,11,17

Sections 416.960-416.968 6,18

Section 416.960(c) 8

Section 416.961 7

—

— 2

— —

AAA Qnaanwnrnwa ana

Miscellaneous:

33 Fed. Reg. (1968):

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

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

H.R. Rep. No. 618, 98th Cong., 2d Sess. (1984) 28

S. Rep. No. 744, 90th Cong., Ist Sess. (1987). 4, 5, 27, 28

Social Security Ruling No. 82-40 (1982) (available in

1982 WL 31388) 8, 11, 17

Staff of the Subeomm. on the Administration of the

Social Security Laws of the House Comm. on Ways

— —

Report (Comm. Print 1960) 26

In the Supreme Court of the United States

No.

JOANNE B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY, PETITIONER

PAULINE THOMAS

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the Commissioner

of Social Security, respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Third Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-23a)

is reported at 294 F.3d 568. The opinion and order of

the district court (Pet. App. 24a-34a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 21, 2002. On September 10, 2002, Justice Souter

extended the time within which to file a petition for a

writ of certiorari to and including October 21, 2002. On

October 15, 2002, Justice Souter granted a further ex-

tension to and including November 18, 2002. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATUTORY PROVISIONS INVOLVED

Relevant provisions of the Social Security Act,

42 U.S.C. 301 et seq., and implementing regulations, 20

C.F.R. Pts. 404 and 416, are set forth in the Appendix

to the petition, Pet. App. 55a-116a.

STATEMENT

Title II of the Social Security Act (the Act), 42 U.S.C.

401 et seq., provides for the payment of insurance bene-

fits to disabled workers. Title XVI of the Act, 42

U.S.C. 1381 et seg., provides for the payment of Sup-

plemental Security Income (SSI) benefits to disabled

individuals if they satisfy certain financial need require-

ments. This case concerns the showing necessary to

establish a “disability” for purposes of those programs.

Specifically, it presents the question whether the

Commissioner of Social Security may find that a claim-

ant is not disabled because she retains the physical and

mental capacity to do a job she previously held, without

inquiring into whether that particular job exists in

significant numbers in the national economy.

A. The Statutory And Regulatory Framework

1. As enacted in 1935, Title II of the Social Security

Act provided old-age benefits for covered workers who

retired at age 65, but it made no provision for “a lower

retirement age for those who are demonstrably retired”

Responsibility for administering Titles II and XVI of the

Social Security Act was previously vested in the Secretary of

Health and Human Services. In 1994, the Social Security Admini-

stration was made an independent agency, headed by the Com-

missioner of Social Security. See Social Security Independence

and Program Improvements Act of 1994, Pub. L. No. 103-296,

56 101-106, 108 Stat. 1465-1477. For the sake of consistency, this

brief uses the term “Commissioner” to include the predecessor

officers responsible for administering the disability programs.

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

ability.“ H.R. Rep. No. 1189, 84th Cong., 1st Sess. 3

(1955). Because Congress concluded that covered

workers “forced into retirement” by a disability before

age 65 should also receive benefits, id. at 4, Congress

amended Title II of the Act in 1956 to establish a

system of disability insurance benefits. See Social Se-

curity Amendments of 1956, ch. 836, § 103, 70 Stat. 815.

Title II of the Act defines “disability” as the inability

to engage in “any substantial gainful activity by reason

of an impairment which can be expected to result in

death” or last the specified duration. 42 U.S.C.

423(d)(1)(A). The Commissioner’s early implementing

regulations explained the showing required to establish

a disability under that definition. The regulations pro-

vided, inter alia: “It must be established not only that

the individual is incapable of performing his prior, usual

or regular work, but also that he does not have the

capacity to engage in any other kind of substantial

gainful work, taking into account his age, education,

experience and skills.” 20 C.F.R. 404.1502(b) (1961).

The regulations continued: “The physical or mental

impairment must be the primary reason for the individ-

ual’s inability to engage in any substantial gainful

activity. Where, for instance, an individual remains un-

employed for a reason or reasons not due to his physical

or mental impairment but because of the hiring

practices of certain employers, technological changes in

the industry in which he has worked, or local or cyclical

economic conditions, such individual may not be

considered under a disability.” Ibid.; see, ¢.g., May v.

Gardner, 362 F.2d 616, 618 (6th Cir. 1966) (upholding

denial of disability because claimant “failed to

establish” that he was “disabled from following his

usual occupation as dispatcher in the mines,” notwith-

standing that such work was no longer available; [wle

have consistently held that, once the [Com-

missioner] finds * * * that the claimant is able to

engage in a former trade or occupation, such a deter-

mination precludes the necessity of an administrative

showing of gainful work which the [claimant] was

capable of doing and the availability of any such work”).

In 1967, Congress amended the Act by adding 42

U.S.C. 423(d)(2)(A). See Social Security Amendments

of 1967, Pub. L. No. 90-248, § 158(b), 81 Stat. 868;

Bowen v. Yuckert, 482 U.S. 137, 147-148 (1987). Section

423(d)(2)(A) provides:

An individual shall be determined to be under a

disability only if his physical or mental impairment

or impairments are of such severity that he is not

only unable to do his previous work but cannot,

considering his age, education, and work experience,

engage in any other kind of substantial gainful work

which exists in the national economy. For purposes

of the preceding sentence (with respect to any

individual), “work which exists in the national

economy” means work which exists in significant

numbers either in the region where such individual

lives or in several regions of the country.

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

Congress added Section 423(d)(2)(A) in response to

court decisions that had, in Congress’s view, improperly

expanded the disability program—and undermined the

Commissioner’s regulations—by emphasizing the indi-

vidual’s ability to obtain employment in the job market

as a practical matter, rather than the individual’s

functional capacity to work. See S. Rep. No. 744, 90th

Cong., Ist Sess. 47-48 (1967). Consistent with the

Commissioner’s regulations, Congress designed Section

423(d)(2)(A) to “reemphasize the predominant impor-

tance of medical factors,” rather than job-market con-

siderations, “in the disability determination.” Jd. at 48.

Congress amended the Social Security Act again in

1972 by adding Title XVI to provide SSI benefits to

financially needy persons who are aged, blind, or

disabled. See Social Security Amendments of 1972,

Pub. L. No. 92-603, Tit. III, § 301, 86 Stat. 1465. Unlike

Title II, which is an insurance program, the SSI pro-

gram under Title XVI is a welfare program that is

based on financial need. Yuckert, 482 U.S. at 140. The

SSI program and Title II, however, impose the same

requirements for establishing disability. See 42 U.S.C.

1382c(a)(3)(A) and (B).

2. The Social Security Act directs the Commissioner

to “adopt reasonable and proper rules and regulations

to regulate and provide for the nature and extent of the

proofs and evidence and the method of taking and

furnishing the same in order to establish the right to

benefits.” 42 U.S.C. 405(a). The Commissioner’s

regulations have long required a claimant to show that

her impairment prevents her from having the capacity

to perform her prior work; if the claimant makes that

showing, the Commissioner will then determine

whether the claimant is capable of performing other

work. See pp. 3-4, supra (describing 1961 regulations);

May, 362 F. 2d at 618. Following the addition of Section

423(d)(2)(A) in 1967, the Commissioner’s revised

regulations carried forward the provision from the 1961

regulations that, if “an individual remains unemployed

for a reason or reasons not due to his physical or mental

impairment but because of * technological

changes in the industry in which he has worked, * * *

the individual may not be considered under a

disability.” 33 Fed. Reg. 11749, 11751 (1968) (codified

as 20 C. F. R. 404.1502(b) (1969)).

In 1978, the Commissioner comprehensively revised

the governing regulations to formalize a five-step se-

quential evaluation process for adjudicating disability

claims. See 43 Fed. Reg. 55,362 (1978). See also

Heckler v. Campbell, 461 U.S. 458, 460-461 (1983);

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 804

(1999); Yuckert, 482 U.S. at 140-142. The process is now

described at 20 C. F. R. 404.1520 and 416.920. See also

20 C.F.R. 404.1560-404.1568, 416.960-416.968. Under

the sequential evaluation process, if a finding of

disability or no disability is made at any point in the

review, the evaluation does not proceed further. 20

C.F.R. 404.1520(a), 416.920(a). By formalizing the

sequential evaluation process, the Commissioner did

not change the agency’s substantive policies, but rather

established consistent procedures for implementing

them. See 43 Fed. Reg. at 55,355.

Steps one through three of the sequential inquiry

focus on whether the claimant is currently working,

whether the impairment is sufficiently severe to be

considered potentially disabling, and whether her im-

pairment is (or is equivalent to) a “listed” impairment

that can be presumed to be so severe that it precludes

all substantial gainful activity.’ If the claimant is not

2 At step one, the Commissioner asks whether the claimant is

currently gainfully employed; if so, the claimant is not disabled. 20

C.F.R. 404.1520(b), 416.920(b). At step two, the Commissioner

asks whether the claimant has a “severe impairment which

significantly limits” the claimant’s “ability to do basic work

activities” such as lifting, standing, and walking, 20 C.F.R.

404.1520(c), 416.920(c); if the impairment is not that severe, the

claimant is not disabled. Jbid. At step three, the Commissioner

determines whether the claimant’s impairment is on a list of im-

found either disabled or not disabled at one of the first

three steps, the evaluation proceeds to steps four and

five, which focus, as required by Section 423(d)(2)(A),

on the claimant’s ability to do her past work or other

work. At step four, the Commissioner determines

whether the impairment renders the claimant func-

tionally incapable of performing the kind of work she

did in the past. 20 C. F. R. 404.1520(e), 416.920(e). The

Commissioner reviews the claimant’s “residual func-

tional capacity and the physical and mental demands of

the work [the claimant] hals] done in the past.” Ibid. If

the claimant “can still do this kind of work,” the Com-

missioner will find that the claimant is “not disabled.”

Ibid.; see 20 C.F.R. 404.1560(b) (“If [the claimant] still

hals] the residual functional capacity to do [that] past

relevant work,” the Commissioner “will determine that

[the claimant is] not disabled without considering

vocational factors of age, education, and work ex-

perience”). The analysis thus does not proceed to the

final (fifth) step unless the claimant “cannot do any

work [she] hals] done in the past because [the claimant]

hals] a severe impairment{].” 20 C. F. R. 404.1520(f),

416.920 (f) (emphasis added).

If the impairment deprives the claimant of the

physical or mental capacity to perform her past work,

the Commissioner proceeds to step five and determines

whether the impairment prevents the claimant “from

doing any other work.” 20 C.F.R. 404.1520(f),

416.920(f). See also 20 C. F. R. 404.1561, 416.961 (“[I}f

your residual functional capacity is not enough to

pairments which are presumed to prevent all substantial gainful

activity (or is equal in severity to a listed impairment or combina-

tion of listed impairments). 20 C.F.R. 404.1520(d), 416.920(d). If

the claimant has such an impairment, she is deemed disabled with-

out further inquiry. Ibid.

enable you to do any of your previous work, we must

* * * decide if you can do any other work.”). At that

step, the Commissioner considers the claimant’s “re-

sidual functional capacity” and “age, education, and past

work experience” to see if the claimant “can do any

other work.” Ibid. “By other work,” the Commissioner

means] jobs that exist in significant numbers in the

national economy.” 20 C. F. R. 404.1560(c), 404.960(c).

The Commissioner has also issued formal Social

Security Rulings interpreting the Act and regulations.

In a 1982 Ruling addressing the relevance of a claim-

ant’s past work in foreign countries, for example, the

Commissioner explained that it does not matter

whether that particular work exists in the United

States economy. Instead, the issue at step four is the

claimant’s physical and mental capacity to do that past

work:

If a claimant can meet the sitting, standing, walking,

lifting, manipulative, intellectual, emotional and

other physical and mental requirements of a past

job, he or she is still functionally capable of per-

forming that job regardless of the fact that the

individual no longer resides in the country where

the past work was performed.

Social Security Ruling (SSR) 82-40 (1982) (available in

1982 WL 31388, at *2). Thus, “the relevance of past

work in a foreign economy * * * is no different from

the relevance of past work in the U.S. economy with

respect to the physical and mental demands of the

particular past job.” Ibid. “It is only after a claimant

proves that he or she is not able to do his or her pre-

vious work that the burden shifts to the [Com-

missioner] to show that there is work available in the

U.S. national economy which the claimant can do (the

fifth and last step of the sequential evaluation

process).” Ibid.

Accordingly, the Ruling stated that it is improper to

“elevate[] an element of the fifth step of the sequential

evaluation process, availability of work in the national

economy, to the fourth step which only deals with the

claimant’s ability to do his or her past work.” SSR 82-

42 (1982 WL 31388, at *2). The Ruling concluded:

The law does not qualify “previous work” but does

specify that other . . work” must exist in signi-

ficant numbers in the national economy. The legis-

lative history of the statutory provisions also does

not qualify “previous work,” but clearly indi-

cates that the provisions were enacted to provide

guidelines “to reemphasize the predominant impor-

tance of medical factors in the disability determin-

ation.”

Ibid.

B. The Proceedings In This Case

1. Respondent Pauline Thomas worked as a house-

keeper until 1988, when she had a heart attack. Res-

pondent then worked as an elevator operator until she

was laid off on August 25, 1995, when her position was

eliminated. In June of 1996, at age 53, respondent ap-

plied for disability insurance benefits under Title II and

SSI benefits under Title XVI, citing heart and back

conditions. Pet. App. 25a. Respondent’s claim was

denied on initial review, Pet. App. 50a-54a, and again on

reconsideration, id. at 46a-49a.

Respondent then requested a hearing before an

Administrative Law Judge (ALJ), see 42 U.S.C. 405(b),

who likewise found that respondent is not disabled.

Pet. App. 38a-45a. The ALJ noted that, although re-

spondent claimed that she was disabled in part by

hypertension and cardiac arrythmia, respondent’s

cardiologist concluded that she was “doing well without

chest pain or shortness of breath,” and “was not dis-

abled.” Id. at 40a. See also id. at 29a (cardiologist

“found no evidence of organ damage” and “character-

ized [respondent’s] physical examination as ‘unremark-

able.“). The ALJ also concluded that, although

respondent claimed that she suffered a “stroke” in

August 1997, that “appear[ed] to be an exaggeration.”

Id. at 48a. The hospital records showed that respon-

dent had “a transient ischemic attack,” ibid., an episode

that “usually lasts two to thirty minutes, but * * *

then abates without persistent neurological abnormali-

ties,” id. at 25a n. 5. Upon discharge, [respondent] was

allowed to resume normal activities.” Jd. at 43a.

Finally, the ALJ did not believe that respondent was

disabled by lower back pain or a right ankle fracture

she allegedly sustained in July 1996. Id. at 42a.

Respondent had not provided medical records to show

that a fracture had occurred, and “[tjhe fact that

[respondent] does not take any pain relievers except,

perhaps, Ecotrin, tends to contradict her allegation of

limiting pain from either the ankle or the back.

Further, the ankle fracture should have healed in far

less than 12 months.” Id. at 42a-43a.

The ALJ observed that, “based on the evidence in

the record, there is considerable question as to whether

there is even a ‘severe’ impairment” that would allow

respondent’s case to proceed beyond the second step of

the sequential evaluation process. Pet. App. 42a; see

pp. 6-7 & note 2, supra. Nonetheless, the ALJ ulti-

mately found that respondent was not disabled at step

four of the sequential evaluation process, because her

claimed impairments would not prevent her from

performing her previous work. Specifically, the ALJ

found that respondent “retains the functional capacity

for work through at least a light level of exertion,” and

thus “retains the functional capacity to return to past

work as an elevator operator.” Pet. App. 43a; see id. at

44a-45a (“The claimant has the residual functional

capacity to perform work-related activities except for

perhaps medium and heavy lifting and extensive

bending and stooping. * * * Tle claimant’s past

relevant work as an elevator operator did not require

the performance of work-related activities precluded by

the above limitation.”).

The ALJ rejected respondent’s contention that it

would be improper to find her not disabled at step

four—and that the evaluation should proceed to step

five for consideration of whether there is “other work”

she can do, 20 C. F. R. 404.1520(f), 416.920(f)—because

(according to respondent) the job of elevator operator

no longer exists in significant numbers in the national

economy. See Pet. App. 43a-44a. The ALJ explained

that, at step four, the Commissioner’s regulations re-

quire only a determination of the claimant’s physical

and mental capacity to meet the demands of a past job;

there is no requirement that the particular job exist in

significant numbers in the national economy. Ibid. The

Social Security Administration’s Ruling regarding

foreign work, the ALJ explained, “emphasizes” that

“the proper test in the fourth step of the sequential

evaluation process is whether the individual can do her

previous work.” Id. at 43a (citing SSR 82-40). “If the

claimant can meet the sitting, standing, walking, lifting,

* * * and other physical or other mental requirements

of a past job, she is capable of performing that job. It is

only after the claimant has proved that she cannot do

her previous work that the burden shifts to the

Commissioner and the vocational rules are applied.” Id.

at 43a-44a.

SSA’s Appeals Council denied respondent’s request

for review. Pet. App. 35a-37a.

2. The district court affirmed. Pet. App. 24a-34a.

After reviewing respondent’s claimed impairments in

detail, the district court concluded that there was “no

evidence to support [respondent]’s claim that heart

problems prevented her from performing her work,” id.

at 29a; “no evidence to support [respondent’s] claim

that lumbar radiculopothy, a nerve root disorder * * *,

prevented her from performing her past work,” id.

at 30a; “no indication that [respondent]’s transient

ischemic attack prevents her from performing her past

work,” ibid.; and no “medical evidence to support her

claim of musculoskeletal problems,” ibid. More gen-

erally, the court found “no evidence that [respondent]

suffers any injuries that would prevent her from per-

forming her job as an elevator operator.” Id. at 31a.

The district court rejected respondent’s argument

that her ability to perform her past job is irrelevant,

because “she no longer has the option to work as an

elevator operator.” Pet. App. 3la; see id. at 3la-32a.

The district court rejected respondent’s argument that the

ALJ should not have disregarded a letter from Dr. Magdy Elamir,

her treating physician, in which Dr. Elamir stated that respondent

is disabled. Pet. App. 32a. Dr. Elamir “did not provide any

laboratory or clinical evidence to support the assertion that

[respondent] was disabled.” Ibid. Rather, she sent a “two-

sentence letter” asserting that petitioner “was currently under

medical treatment and unable to work.” Ibid. Given the “other

physicians [who] found [that respondent] was able to work,” and

the absence of “hospital records indicating that [respondent] has

any functional limitations,” the district court held that the ALJ had

correctly rejected Dr. Elamir’s assertion for lack of “supporting

medical findings.” Id. at 33a.

“Disability,” the court concluded, “provides for people

who physically are incapable of performing the type of

job they did in the past{;] it does not provide for people

who lost their job.” Id. at 28a.

3. a. Sitting en banc, a divided court of appeals

reversed. Pet. App. la-23a. The court first concluded

that the text of the Act precludes the Commissioner

from finding that a claimant is not disabled based on her

physical and mental capacity to perform her “previous

work,” unless that previous work (like “any other kind

of substantial gainful work”) exists in significant num-

bers in the national economy. Id. at 8a. Section

423(d)(2)(A), the court observed, provides that a claim-

ant “shall be determined to be under a disability only if

his physical or mental impairment or impairments are

of such severity that he is not only unable to do his

previous work but cannot, considering his age, edu-

cation, and work experience, engage in any other kind

of substantial gainful work which exists in the national

economy.” Id. at 7a (emphasis omitted). In the court’s

view, It he phrase ‘any other’ * makes clear that

an individual’s ‘previous work’ was regarded as a type

of ‘substantial gainful work which exists in the national

economy.“ Id. at 8a. “This feature of the statutory

language,” the court concluded, “is unambiguous.” Ibid.

The court of appeals further held that, “even if the

statutory language were ambiguous,” the court’s

interpretation would not change, because, in its view,

the contrary construction would lead to “absurd re-

sults.” Pet. App. 9a. The court perceived “no plausible

reason why Congress might have wanted to deny

benefits to an otherwise qualified person simply be-

cause that person, although unable to perform any job

that actually exists in the national economy, could

perform a previous job that no longer exists.” bid.

The court of appeals therefore concluded that, if re-

spondent “can show that elevator operator positions

really are obsolete,” the ALJ must “proceed[] to Step

Five of the sequential evaluation to ascertain whether

[respondent’s] medical impairments prevent her from

engaging in any work that actually exists.” Id. at 1la-

12a.

The court rejected the Commissioner’s position that

allowing claimants to proceed to step five based on job

obsolescence “would convert disability benefits into

unemployment benefits.” Pet. App. 12a. The court

likewise was unmoved by the Commissioner’s concern

about the administrative burden the court’s construc-

tion would impose. The court acknowledged that the

inquiry into the claimant’s previous work “was de-

signed to facilitate the determination of whether a

claimant has the capacity to work, because it is easier to

evaluate a claimant’s capacity to return to a former job

than to decide whether any jobs exist for a person with

the claimant’s impairments and vocational back-

ground.” Ibid. And the court accepted the proposition

that, “in the vast majority of cases, a claimant who is

found to have the capacity to perform her past work

also will have the capacity to perform other work.” Id.

at 12a-13a n.5. Nevertheless, the court concluded that,

contrary to the regulatory framework, the vocational

consideration of whether a claimant’s particular past

job exists in the national economy should be considered

at step four of the sequential evaluation process. /d. at

15a-16a. Rejecting the dissent’s concern that the ruling

“would wreak havoc” with the administrative process,

the court posited that cases like the present one should

be “rare, and inquiring whether a job such as that of an

elevator operator still exists in the national economy is

not complex.” Ibid.

Finally, the court of appeals acknowledged that its

decision is inconsistent with Pass v. Chater, 65 F.3d

1200 (4th Cir. 1995), and Rater v. Chater, 73 F.3d 796

(8th Cir. 1996), but declared that “neither opinion is

persuasive,” because neither, in the court’s “judgment,

devote[d] sufficient attention to the language of the

statute or the statutory scheme.” Pet. App. 14a. The

court of appeals also acknowledged that the Ninth

Circuit had upheld the Commissioner’s construction in

Quang Van Han v. Bowen, 882 F.2d 1453 (1989), and

the Sixth Circuit had reached the same result in Garcia

v. Secretary of HHS, 46 F.3d 552, 558 (1995). Pet. App.

8a n.2. But it disagreed with those decisions as well.

Ibid.

b. Judge Rendell, joined by Judges Sloviter and

Roth, dissented. Pet. App. 17a-23a. In their view, the

text of Section 423(d)(2)(A) “requires that disability be

based on an initial finding that an individual is ‘unable

to do his previous work,“ without a determination of

whether that work exists in significant numbers in the

national economy. Pet. App. 17a. Only “[iJf that con-

dition is met” does the inquiry move on to consider

whether a claimant has “the ability to engage in ‘any

other kind of substantial gainful work which exists in

the national economy.“ Jbid. The majority had reach-

ed the contrary result, the dissenters stated, by “re-

writing the statute” and engraftling]!“ a new re-

quirement—that the past work exist in significant

numbers in the national economy—onto the otherwise

“perfectly clear first requirement” that the claimant be

“unable to do his previous work.” Ibid. The dissenters

explained that, consistent with the statute, “Step Four

is not an inquiry into employability or employment

opportunity, but, rather, it is an inquiry into physical

capacity.” Id. at 18a (citing Pass, 65 F.3d at 1204).

Even “if the majority’s position is credited,” the

dissenters contended, “the statute is at best ambig-

uous,” and the agency’s interpretation “should be ac-

corded great weight.” Id. at 21a.

The dissenters also disputed the majority’s belief

that the Commissioner’s construction would lead to

absurd results, finding it “quite plausible that Congress

decided that if a claimant still retained the physical and

mental capacity to do whatever work she previously

did, the inquiry should end there with a finding that

claimant is not disabled.” Pet. App. 19a. Under the

statutory framework, the dissenters reasoned, Iplre-

vious work essentially serves as a proxy for the ability

to perform work, not as proof that the claimant can be

employed in that particular job.” Ibid. “(T]he point at

Step Four is not that [the claimant] can actually be

employed in her past job, but that she is able to do a

certain level of work. If Congress and the reg tory

body charged with implementing the statutory sc eme

have determined that [such a claimant] should not be

considered ‘disabled’ if she still has the ability,

physically and mentally, to do what she had previously

done,” the dissent concluded, it is not for the courts to

“graft additional requirements on the statutory and

regulatory scheme.” Id. at 23a. |

REASONS FOR GRANTING THE PETITION

The court of appeals in this case invalidated the

Commissioner’s longstanding construction of a central

provision of the Social Security Act, holding that a

claimant who retains the physical and mental capacity

to perform the demands of a previous job can never-

theless be “disabled” under the Act. The court’s deci-

sion is in direct conflict with the decisions of four other

circuits. See Quang Van Han v. Bowen, 882 F.2d 1453

(9th Cir. 1989); Garcia v. Secretary of HHS, 46 F.3d 552

(6th Cir. 1995); Pass v. Chater, 65 F.3d 1200 (4th Cir.

1995); Rater v. Chater, 73 F.3d 796 (8th Cir. 1996). The

decision, moreover, has a significant programmatic im-

pact and misconstrues the Social Security Act, con-

verting the medical and functional definition of dis-

ability into an employment-market-driven definition,

contrary to Congress’s intent.

A. The Third Circuit’s Decision Conflicts With

Decisions Of Four Other Courts Of Appeals

For decades, the Commissioner has construed the

Social Security Act to make the claimant’s physical or

mental incapacity to perform prior work a pre-condition

to a finding of disability, whether or not that particular

work is shown to exist in significant numbers in the

national economy. See pp. 3, 5-9, supra. Thus, at step

four of the Commissioner’s sequential evaluation

process, the Commissioner reviews the claimant's re-

sidual functional capacity and the physical and mental

demands of the work [the claimant] has done in the

past.” 20 C.F.R. 404.1520(e), 416.920(e). If the claimant

“ean still do this kind of work,” the Commissioner will

find that the claimant is “not disabled.” Ibid. Accord 20

C.F.R. 404.1520(f), 416.920(f) (claimants must be unable

to perform “any work * * * done in the past because

[they] have I] severe impairment(s)” (emphasis added));

Social Security Ruling (SSR) 82-40 (1982) (available in

1982 WL 31388). See Bowen v. Yuckert, 482 U.S. 137,

141-142 (1987) (“If the claimant is able to perform his

previous work, he is not disabled.”).

Invalidating that longstanding construction, the

court of appeals held that the Act “unambiguous[ly]”

precludes the Commissioner from finding a claimant not

disabled based on the claimant’s physical and mental

ability to perform the demands of a prior job unless

that particular job exists in significant numbers in the

national economy. Pet. App. 8a. As the court of

appeals acknowledged (id. at 8a n.2, 14a; see p. 15,

supra), four other courts of appeals have reached the

opposite conclusion.

In Quang Van Han, the Ninth Circuit upheld the

Commissioner’s determination that a Vietnamese

refugee was not disabled because he was still capable of

performing the work he had performed in Vietnam,

whether or not such employment was available in the

United States. The court observed:

The Act sets out two requirements for disability: A

claimant must (1) be “unable to do his previous

work,” and (2) be unable to “engage in any other

kind of substantial gainful work which exists in the

national economy.” * * * Although the Act re-

quires “other” work to exist in the United States, it

places no such limitation on “previous work”; it is

therefore reasonable to infer that the ability to

perform previous work renders a claimant ineligible

for benefits whether or not that work exists in the

United States.

882 F.2d at 1457.

The Sixth Circuit followed Quang Van Han in

Garcia, 46 F.3d at 558, stating that the statutory

language “easily bears the [Commissioner's] inter-

pretation.” The legislative history, the court also noted,

shows that “Congress intended to distinguish sharply

between unemployment compensation and the dis-

ability benefits provided by the Act,” and that Con-

gress defined disability “as a predominantly medical

determination, as opposed to a vocational one.” Garcia,

46 F.3d at 559. Accordingly, the Commissioner’s “re-

fusal to consider the availability of jobs in the national

economy at step four * * * is a permissible construc-

tion of the Act.” Ibid.

The Fourth Circuit has likewise upheld the Col nis-

sioner’s construction. In Pass, the claimant asserted

that he was disabled even though he had the functional

capacity to perform his past job as a gate guard at a

construction site. He claimed that his capacity to do

that work was not relevant because the job had ended

when construction at the site was completed. 65 F.3d at

1203. The court refused to require the Commissioner to

consider whether similar gate guard jobs existed in the

national economy, or to move to step five of the

sequential evaluation process based on the claimant’s

assertion that they did not. It explained that “a finding

of disability under the statute must be based upon a

lack of physical or mental capabilities on the part of the

claimant, not upon other factors which prevent the

claimant from obtaining work.” Id. at 1204. The court

therefore concluded that the regulations concerning

past relevant work appropriately “reflect the statute’s

focus on the functional capacity retained by the

claimant,” ibid., and that “(t]he question of whether

past work continues to exist is therefore not relevant,”

id. at 1207. See id. at 1204 (“Past work in the

regulatory scheme is a gauge by which to measure the

physical and mental capabilities of an individual and the

activities that he or she is able to perform, rather than a

means by which to assure that the claimant can actually

find employment.”).

Similarly, in Rater, the Eighth Circuit upheld the

Commissioner’s decision that the claimant was not dis-

abled because he retained the functional capacity to

perform his past job as an incinerator operator/watcher,

even though the job had been abolished in a reorgan-

ization and was relatively unusual. “The statute,” the

court held, “does not require a particular job to exist in

significant numbers in the national economy in order to

constitute past relevant work.” 73 F.3d at 799.‘

B. The Court of Appeals Erred In Rejecting The

Commissioner’s Longstanding Interpretation

This Court has repeatedly recognized that “Congress

has ‘conferred on the [Commissioner] exceptionally

broad authority to prescribe standards for applying

certain sections of the [Social Security] Act.” Heckler

v. Campbell, 461 U.S. 458, 466 (1983) (quoting

Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981));

Yuckert, 482 U.S. at 145. “Where, as here, the statute

expressly entrusts the [Commissioner] with responsi-

bility for implementing a provision by regulation,” the

Court’s “review is limited to determining whether the

regulations promulgated exceeded the [Commission-

er's] statutory authority and whether they are arbi-

trary and capricious.” Campbell, 461 U.S. at 466;

Yuckert, 482 U.S. at 145.

4 The Third Circuit relied on dictum in Kolman v. Sullivan, 925

F. 2d 212 (7th Cir. 1991), to support its contrary view. In Kolman,

the court held that the mentally-impaired claimant’s previous job,

because it was a temporary “makework training job,” should not

qualify as past relevant work at step four and that, unless another

relevant previous job could be identified, the evaluation had to

proceed to step five. Jd. at 213-214. The court commented that if

the temporary training job had been a permanent position that had

disappeared, “the fact that [the claimant] could perform it if it did

exist does not appeal to us as being either a rational ground for

denying benefits or one intended by the regulations.” Id. at 213.

While the majority in this case considered the Kolman dictum to

be “the most perceptive precedent addressing the question,” Pet.

App. 13a, the Seventh Circuit itself has declined to expand it. See

Knight v. Chater, 55 F.3d 309, 315-316 (7th Cir. 1995).

1. The Third Circuit’s decision in this case im-

properly rejects the Commissioner’s longstanding con-

struction and implementation of the Act. The court of

appeals held that the pertinent statutory language is

“unambiguous” and precludes the Commissioner from

denying a disability claim based on the claimant’s capa-

city to do her former work, unless that work “exists

in the national economy,” i. e., “exists in significant

numbers either in the region where such individual

lives or in several regions of the country.” Pet. App. 8a.

The Third Circuit focused on the words “any other” in

the phrase in Section 423(d)(2)(A) that reads: “not only

unable to do his previous work but cannot * * *

engage in any other kind of substantial gainful activity

which exists in the national economy.” 42 U.S.C.

423(d)(2)(A) (emphasis added). The Third Circuit con-

cluded that Congress’s use of the words “any other”

“makes clear that an individual’s ‘previous work’ was

regarded as a type of ‘substantial gainful work which

exists in the national economy.“ Pet. App. 8a.

As a structural matter, however, the clause “which

exists in the national economy” in Section 423(d)(2)(A)

does not immediately follow the words “previous work”;

rather, it immediately follows “any other kind of

substantial gainful work.” Consistent with standard

rules of statutory construction, the phrase “which

exists in the national economy” is most naturally under-

stood as modifying only “any other kind of substantial

gainful work,” the phrase it immediately follows. See,

e.g., FTC v. Mandel Bros., Inc., 359 U.S. 385, 389 & n.4

(1959) (limiting clause is generally to be applied only to

the last antecedent, unless the subject matter requires

a different construction).

In Quang Van Han, the claimant made the same

argument that the Third Circuit accepted here, urging

that “the word ‘other’ preceding ‘kind of substantial

gainful work,’ indicates that ‘previous work is a subset

of substantial gainful work which exists in the national

economy,’ and that the previous work must therefore

also exist in the national economy.” 882 F.2d at 1457.

The Ninth Circuit rejected that argument, explaining

that it is equally if not more natural to “construe

‘previous work’ and ‘other’ work as separate categories,

neither a subset of the other. Under such an inter-

pretation the limitations governing other work”—

including the requirement that it exist in significant

numbers in the national economy—“do not modify pre-

vious work; indeed, * * * their absence gives rise to

the inference that previous work is not subject to the

same restrictions.” Id. at 1457. Three other circuits

reached the same conclusion for similar reasons.

Garcia, 46 F.3d at 558 (agreeing with Ninth Circuit’s

analysis); Rater, 73 F.3d at 799; Pass, 65 F.3d at 1203-

1204, 1207.

According to the Third Circuit, however, the phrase

“any other” compels the conclusion that “previous

work” must be a subset of “work which exists in the na-

tional economy.“ The court stated, “[wJhen a sentence

sets out one or more specific items followed by ‘any

other’ and a description, the specific items must fall

within the description.” Pet. App. 8a (emphasis added).

As a matter of usage, the court declared, “it makes

sense to say: ‘I have not seen a tiger or any other large

cat’ or ‘I have not read Oliver Twist or any other novel

Charles Dickens wrote.’ But it would make no sense to

say, I have not seen a tiger or any other bird’ or ‘I have

not read Oliver Twist or any other novel which Leo

Tolstoy wrote.“ Ibid.

The Third Circuit erred in assuming that, as a matter

of either common usage or statutory interpretation, all

items preceding the phrase “or any other” are

invariably covered by the entirety of any description

(including qualifiers) that follows, and the court’s

examples do not parallel the grammatical structure

Congress used in Section 423(d)(2)(A). It makes perfect

grammatical sense—and more closely parallels the

structure of Section 423(d)(2)(A)—to say “not only have

I not seen a tiger, but I have not seen any other large

animal which can climb higher than a tiger”; or “not

only have I not read Oliver Twist, but I have not read

any other Victorian novels which were published after

Oliver Twist.” In the first example, the words “any

other” clarify that “tiger” is a category of “large

animal,” but they obviously do not imply that a tiger

can climb higher than a tiger. Likewise, in the second

example, the phrase “any other” suggests that Oliver

Twist is a Victorian novel, but cannot be read to

suggest that Oliver Twist is a subset of “Victorian

novels which were published after Oliver Twist.” Or, to

use another example, a disappointed traveler might

complain that the weather was “so severe that we were

not only unable to visit the officially recommended sites

but we were prevented from visiting any other tourist

attractions which our children wanted to see.” That

sentence does not necessarily imply that the officially

recommended sites were ones the children wanted to

see; it implies only that the officially recommended gites

were “tourist attractions.”

Similarly here, the words “any other” in the phrase

“not only unable to do his previous work but cannot

* * * engage in any other kind of substantial gainful

work which exists in the national economy” may sug-

gest that the “previous work” is a “kind of substantial

gainful work.” But it is neither necessary nor natural

to read the words “any other kind of” as requiring that

"BEST AVAILABLE COPY

the previous work also be work “which exists in the

national economy.” Indeed, although more than three

decades have lapsed since Section 423(d)(2)(A) was

enacted, no court of appeals decision had ever adopted

that grammatical construction until the decision in this

case. See also Yuckert, 482 U.S. at 148 (describing

Section 423(d)(2)(A) as restricting “eligibility for dis-

ability benefits to claimants whose medically severe

impairments prevent them from doing their previous

work and also prevent them from doing any other

substantial gainful work in the national economy”)

(emphasis added).

2. The Third Circuit’s decision, moreover, fails to

respect a cardinal principle of statutory construction. If

the claimant’s “previous work” were merely a form of

“substantial gainful work which exists in the national

economy” as the Third Circuit believed, Section

423(d)(2)(A)’s requirement that the claimant be unable

to do his “previous work” would be largely superfluous.

Under the Third Circuit’s reading, the Act’s meaning

and effect would be nearly identical if Section

423(d)(2)(A) had required only that the claimant be

unable to perform “any kind of substantial gainful work

which exists in the national economy,” because that

phrase would encompass the claimant’s “previous

work” if it exists in the national economy. It is, of

course, generally inappropriate to construe a statute so

as to render part of it surplusage. Williams v. Taylor,

529 U.S. 362, 404 (2000) (“It is * * * a cardinal

principle of statutory construction that we must ‘give

effect, if possible, to every clause and word of a

statute.’”); Oregon Dep’t of Revenue v. ACF Indus., 510

US. 332, 340 (1994).

3. Nor was the court of appeals correct to suggest

that the Commissioner’s construction yields absurd

results. According to the Third Circuit, “there is no

plausible reason why Congress might have wanted to

deny benefits” where a claimant, “although unable to

perform any job that actually exists in the national

economy, could perform a previous job” that has be-

come obsolete and thus “no longer exists.” Pet. App.

9a. As an initial matter, the decision below itself yields

absurd results because it is not limited to situations in

which a claimant’s past job has become obsolete; it

would apply any time the former position does not exist

in “significant numbers” in the national economy, id. at

8a, even if the claimant has been offered her former

position. Indeed, the court’s holding would permit such

an individual to quit her job and collect disability

benefits instead—even though the individual’s

employer wanted her to return—if that job did not

exist “in significant numbers either in the region where

such individual lives or several regions in the country.”

Ibid. There is no plausible reason why Congress would

have wanted to provide disability benefits to indi-

viduals who can work and have been offered a job they

can do, merely because the job is unusual or uncommon.

In any event, the Commissioner’s construction is

reasonable and consistent with Congress’s intent. Con-

gress required a showing of physical or mental inability

to perform one’s prior work not because that prior work

is necessarily available, but rather because the ability

to perform that job furnishes individualized proof that

the individual can work. In other words, in prescribing

the principles on which the disability program would

operate, Congress simply did not accept the Third

Circuit’s assumption that there are individuals capable

of performing one and only one narrow type of work.

As the dissenting judges observed below, “the point

* * * is not that [a claimant] can actually be employed

in her past job, but that she is able to do a certain level

of work.” Pet. App. 23a (emphasis added); see Pass, 65

F.3d at 1204. That is parallel to the way in which the

statute uses “other” work at the next step of the

analysis—to measure the level of a claimant’s physical

and mental ability to work, not her actual access to jobs

in view of market conditions. Thus, even where “other”

work is at issue, the Act declares that it makes no

difference whether that work is available near the

claimant’s home, or whether a vacancy exists, or

whether the claimant could get hired. See 42 U.S.C.

423(d)(2)(A), 1382c(aX(3)(B). It is likewise not unreason-

able for Congress or the Commissioner to conclude

that, if a claimant remains capable of performing the

demands of a job she did in the past, she is not disabled,

regardless of whether that particular line of work

remains available for whatever reason.“

Congress, moreover, wished to make “a clear dis-

tinction between this program and one concerned with

unemployment.” Staff of the Subcomm. on the Admini-

stration of the Social Security Laws of the House

Comm. on Ways and Means, 86th Cong., 2d Sess.,

Preliminary Report 20 (Comm. Print. 1960) (quoted at

43 Fed. Reg. 55,349, 55,350 (1978)). Consistent with

that intent, the Commissioner has—from the program’s

earliest days—required that “(t]he physical or mental

5 A claimant’s previous job is specific and identifiable, and the

ability to perform its demands is a direct measure of actual

capacity to do work. “Other” work is by definition work the

claimant has not done, and analysis of that issue is therefore often

more removed from empirical proof. Indeed, for that reason, the

“other work” inquiry must rely on generalizations (including the

“grid” regulations described in Heckler v. Campbell, 461 U.S. at

461-462, 467-468, presumptions based on age, etc.) that render it a

less individualized measure than prior work.

impairment” be the “primary reason for the individual’s

inability to engage in any substantial gainful activity,”

and has excluded those individuals who are unemployed

“not due to * * * physical or mental impairment but

because of * * * technological changes in the industry

in which [the claimant] has worked.” 20 C.F.R.

404.1502(b) (1961).

4. Congress has repeatedly acknowledged and ap-

proved of the Commissioner’s construction, even as it

amended the Act in other respects. When Congress

amended the definition of disability in 1965, for ex-

ample, it proceeded on the premise that the individual’s

inability to perform his prior work must result from the

claimed impairment. Thus, the House Report stated

that, “to be eligible an individual must demonstrate

that he is not only unable, by reason of a physical or

mental impairment, to perform the type of work he

previously did, but that he is also unable, taking into

account his age, education, and experience, to perform

any other type of substantial gainful work, regardless

of whether or not such work is available to him in the

locality in which he lives.” H.R. Rep. No. 213, 89th

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

After a series of judicial decisions expanded the

scope of the disability program by focusing on the job

market rather than the medical effect of the impair-

ment, Congress in 1967 enacted Section 423(d)(2)(A) to

reinstate the Commissioner’s construction and “re-

emphasize the predominant importance of medical

factors in the disability determination.” S. Rep. No.

744, 90th Cong., Ist Sess. 48 (1967). Contrary to the

Third Circuit’s decision, Congress clearly understood

that, in adding Section 423(d)(2)(A), it was providing

that, “if, despite his impairment or impairments, an

individual can still do his previous work, he is not

under a disability; and that if, considering his age,

education, and experience, he has the ability to engage

in some other type of substantial gainful work that

exists in the national economy even though he can no

longer do his previous work, he also is not under a

disability regardless of whether or not such work exists

in the general area in which he lives or whether he

would be hired to do such work.” S. Rep. No. 744,

supra, at 48-49 (emphasis added). In 1984, Congress

conducted an extensive review of the sequential

evaluation process. See, ¢e.g., H.R. Rep. No. 618, 98th

Cong., 2d Sess. 6-8 (1984). Although Congress amended

the Act to adjust the use of the sequential evaluation

process in other respects, it made clear that it did “not

wish to eliminate or seriously impair use of that pro-

cess.” Ibid.

C. The Court of Appeals’ Construction Of The Act

Has Significant Programmatic Implications

As this Court has recognized, the Social Security

Administration “decides more than 2 million claims for

disability benefits each year.” Yuckert, 482 U.S. at 153.

As a result, the need for a sequential evaluation process

that “contribute[s] to the uniformity and efficiency of

disability determinations * * * is particularly acute.”

Ibid. According to the Social Security Administration,

a significant number of the more-than two million

claims determined each year—well over two hundred

thousand—are decided at step four of the sequential

evaluation process based on the claimant’s ability to

perform prior work. Under the Third Circuit’s holding,

the agency may no longer employ its longstanding

approach to that inquiry, and instead must assist

individuals in developing a record regarding whether

(and to what extent) the jobs they previously held and

are still able to perform exist in significant numbers in

the national economy or in the region where they live.

See Sims v. Apfel, 530 U.S. 103, 110-111 (2000) (because

the sequential evaluation of disability is not adversarial,

the Commissioner must “investigate the facts and

develop the arguments both for and against granting

benefits”). Given the volume of claims the Commis-

sioner must handle, that burden is significant. See Pet.

App. 18a (Rendell, J., dissenting) (decision below will

“wreak havoc with the evidentiary aspects of the

administrative process”).

Given today’s dynamic and technological economy,

the burden is likely to increase. Today, job types are

becoming obsolete with increasing frequency, just as

new types of work increasingly emerge to replace them.

As a result, the court of appeals erred in invalidating

the Commissioner’s regulatory approach based on

speculation that cases like this one will be “rare,” Pet.

App. 16a. The decision below, moreover, calls into

question the Commissioner’s long-established treat-

ment of claimants whose previous jobs were performed

in foreign economies and may not exist in significant

numbers in the United States economy. Considering

the large number of immigrants in the United States,

those cases are not insignificant in number. Under the

Third Circuit’s decision, those cases too will impose

additional administrative burdens and costs on the Title

II and Title XVI disability programs.

In sum, the court of appeals’ decision fundamentally

misconstrues the Act, creates 2 conflict with the

decisions of four other circuits, and invalidates long-

standing rules and policies that have, for decades,

contributed to the reliability, consistency, and efficiency

of Social Security disability decisions. Accordingly,

review by this Court is warranted.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

NOVEMBER 2002