# Petition for Writ of Certiorari — Barnhart v. Thomas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 20

## Text

In the Supreme Court of the United States

JOANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY, PETITIONER

U.

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:

IV

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:

20

29

24

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
3

passim

5

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:

*

5

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

a
—
— 2

— —
AAA Qnaanwnrnwa ana

Miscellaneous:

33 Fed. Reg. (1968):

P.
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

V.

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)

2

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.

3

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-

4

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

5

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

6

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-

7

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.

8

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

9

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-

10

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

11

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

12

~

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.

13

“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.

14

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.

15

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).

16

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

17

(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

18

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-

19

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-

20

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).

21

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

22

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

23

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

24

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

25

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

26

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.

27

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

28

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

29

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.

30

CONCLUSION

The petition for a writ of certiorari should be

granted.
Respectfully submitted.

NOVEMBER 2002

THEODORE B. OLSON
Solicitor General

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0622%3A03. Public record. Not legal advice.