Reply Brief — Barnhart v. Thomas

JAN „ 200!

No. 02-763

In the Supreme Court of the United States

JOANNE B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY, PETITIONER

Vv.

PAULINE THOMAS

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

REPLY BRIEF FOR THE PETITIONER

THEODORE B. OLSON

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

TABLE OF CONTENTS

1. The decision below conflicts with the decisions of

008.

2. The decision below is —ͤ signifi-

1 —— —— —— —

3. The Third Circuit’s decision i is incorrect . . .

TABLE OF AUTHORITIES

Cases:

Auer v. Robbins, 519 U.S. 452 (1997) ......

Barnhart v. Walton, 122 S. Ct. 1265 (2002)

Bowen v. Yuckert, 482 U.S. 137 (1985).

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

8888909 ————————

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

19BB) ...ce.crcscsercscseceesesecessssesesscsesssssosonsnosssessesensssensssssssssosssossoeess

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

Massey v. Celebrezze, 345 F.2d 146 (1965) ...

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

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

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

8.96 —————————————

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

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504

0. ——

United States v. Cleveland Indians Baseball Co.,

532 U.S. 200 (2001) v. ————.———.ꝛ«yG—.—9:4(—.—.——:—.—.. .

Statutes and regulations:

42 U.S.C. A2 0dNCU⁰9ꝗg a A ————.—'—.—62⸗ůvnͥ i..—.—.—.——

42 U.S.C. 4230d)(2 (A) . ...........—. ..... e.

42 U.S.C. 13820 )( C04) ——9x———1..—.—.—..——.——ç—ẽ—:̃

(I)

ao

II

ä 8 In the Supreme Court of the United States

20 C. F. R.:

Section 404. 150200) (1961) cinssnenennens 4.8 No. 02-763

Section 404.150 20b) (1969) .. : 8 JOANNE B. BARNHART,

Section 404.1503(e) (1979) ..... 4 COMMISSIONER OF SOCIAL SECURITY, PETITIONER

Section 404.1503(f) (1979) 4 v.

Section 404. 15050) (1979) 4

Section 404. 15 200d) 1 9 PAULINE THOMAS

Section 404. 15200) —.—.—..—.: .... — 3, 5

] m 3 = 41 — 17 2 = ee apie TO

? 3

ü * 5 nnen

2 0 ͤ¹-—— 3

Section 416.9 200d) .... .. 4 REPLY BRIEF FOR THE PETITIONER

? 9

Section 416.920(f) — 3 The Third Circuit’s decision in this case invalidates the

— a — — : Commissioner’s longstanding construction of a central defini-

— — tional provision of the Social Security Act. Respondent does

; not dispute that in so doing the Third Circuit created a

~ Miscellaneous: square conflict with four other circuits. Instead, respondent

Social Security Ruling 82-40 (1982) (available in 1982 defends the decision below on the merits. That defense,

11—L— 8 4 however, does not eliminate the need for this Court’s review

S. Rep. No. 744, 90th Cong., Ist Sess. (1967) 2,9 to restore uniformity to circuit law, does not undermine the

decision’s programmatic significance, and is unpersuasive on

the merits.

1. The Decision Below Conflicts With The Decisions

Of Four Other Circuits

The Third Circuit majority held that a claimant who has

the physical and mental capacity to meet the demands of a

previous job may nonetheless be “disabled” within the

meaning of the Social Security Act, unless the previous job

exists in significant numbers in the national economy. See

Pet. App. 6a-8a. As the petition explains (at 18-20), and as

the decision below acknowledges (Pet. App. 8a n.2, 14a), that

holding conflicts with Quang Van Han v. Bowen, 882 F.2d

(1)

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);

and Rater v. Chater, 73 F.3d 796 (8th Cir. 1996). Those

decisions upheld the Commissioner’s contrary construction,

concluding that a claimant’s physical and mental ability to

perform a former job precludes a finding of disability,

without inquiry into whether the previous job exists in

significant numbers in the national economy. In Quang Van

Han, for example, the court of appeals 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 requires “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 ren-

ders a claimant ineligible for benefits whether or not that

work exists in the United States.

882 F.2d at 1457. Accord Garcia, 46 F.3d at 558 (upholding

agency construction that the “existence of the previous work

in the national economy * * * need not be considered”);

Pass, 65 F.3d at 1207 (“The question of whether past work

continues to exist is not relevant.”); Rater, 73 F.3d at

799 (statute “does not require a purticular job to exist in

significant numbers in the national economy in order to

constitute past relevant work”).

Respondent makes no effort to reconcile the decision

below with the decisions of those other courts of appeals.

Instead, she ignores the circuit conflict entirely. The circuit

conflict, particularly in these circumstances, is by itself a

sufficient reason to grant the petition for a writ of certiorari.

“It is, and has been, the intent of the statute to provide a

definition of disability which can be applied with uniformity

and consistency throughout the Nation.” S. Rep. No. 744,

90th Cong., Ist Sess. 49 (1967) (emphasis added). Absent

3

further review, the definition of disability will vary from

circuit to circuit, with one construction prevailing in the

Third Circuit, and another in the Fourth, Sixth, Eighth, and

Ninth Circuits. A claimant’s entitlement to benefits under

the Act ought not depend on the happenstance of where the

Commissioner’s decision is reviewable.

2. The Decision Below Is Programmatically Signifi-

cant

Attempting to minimize this case’s significance, respon-

Jent asserts that it “does not impair the Commissioner’s

ability to make regulations nor does it invalidate the regu-

lation under discussion in the instant case.” Br. in Opp. 1.

That is incorrect.

As an initial matter, the decision does invalidate the Com-

missioner’s regulations. A claimant is not disabled under

those regulations if she is physically and mentally capable of

performing her past work, without regard to whether that

past work exists in significant numbers in the national

economy. The regulations thus provide that, at step four of

the sequential evaluation process, the Commissioner will

examine the claimant’s “residual functional capacity and the

physical and mental demands of the work [the claimant]

hals] done in the past”; if the claimant “can still do this kind

of work,” the Commissioner will find that the claimant is

“not disabled.” 20 C.F.R. 404.1520(e), 416.920(e); see 20

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

“do any work [she] hals] done in the past because [the

claimant] hals] a severe impairment{ }”) (emphasis added).

The Commissioner does not ask whether there is other work

the claimant can do, and whether that other work exists in

significant numbers in the national economy, unless the

impairment renders the claimant physically or mentally

incapable of performing her former work. See 20 C.F.R.

404.1561, 416.961 (IIlf your residual functional capacity is

not enough to enable you to do any of your previous work,

we must * * * decide if you can do any other work,” which

4

“must exist in significant numbers in the national econ-

omy.”). That, moreover, has been the Commissioner’s posi-

tion for decades, as reflected in early cases,’ the Commis-

sioner’s previous regulations,” ard Social Security Rulings,*

which respondent nowhere distinguishes. See also Pet. App.

lla (acknowledging that “a literal reading of the regulation”

supports the Commissioner’s construction).

Respondent points out that, under the Commissioner’s

regulations, the physical and mental ability to perform past

work does not matter unless the past work is “relevant.” Br.

in Opp. 4-5. The court of appeals, however, did not purport

to rely on the “relevance” requirement, and the Commis-

sioner’s regulations make it clear that “relevance” is primar-

ily a question of duration and recency—for how long and how

long ago the job was held—not whether the particular past

work exists in significant numbers in the national economy.

See 20 C. F. R. 404.1565(a), 416.965(a); Br. in Opp. 5 (stressing

“‘recency’ requirement”). In other words, past work can be

In May v. Gardner, 362 F.2d 616, 618 (6th Cir. 1966), for example,

the court of appeals upheld the denial of disability benefits where the

claimant “failed to establish” that he was “disabled from following his

usual occupation as dispatcher in the mines,” notwithstanding the fact that

such work was no longer available. “We have * * * consistently held

that, once the [Commissioner] finds * * * that the claimant is able to

engage in a former trade or occupation, such a determination ‘precludes

the necessity of an administrative showing of gainful work which the

[claimant] was capable of doing and the availability of any such work“

Ibid.; see Pet. 3-4.

2 The Commissioner's 1978 regulations, which formalized the five-step

sequential evaluation process, similarly distinguished between past work

(which need not exist in significant numbers in the national economy) and

other work (which must exist in significant numbers in the national

economy). See, eg., 20 C. F. R. 404.1503(e) and (f) (1979); 20 C. F. R.

404.1505(f) (1979); see also 20 C. F. R. 404.1502(b) (1961), discussed at p. 8,

infra.

3 See Pet. 8-9 (discussing Social Security Ruling (SSR) 82-40 (1982)

(available in 1982 WL 31388, at *2)). SSR 82-40 explains: “The law does

not qualify ‘previous work’ but does specify that ‘other . . . work’ must

exist in significant numbers in the national economy.”

5

“relevant” whether or not it exists in significant numbers in

the national economy.‘ Even if there could be doubt about

that interpretation of the regulations—and there is none—

the Commissioner’s construction of her regulations is enti-

tled to deference. See United States v. Cleveland Indians

Baseball Co., 582 U.S. 200, 220 (2001); Awer v. Robbins, 519

U.S. 452, 462 (1997); Thomas Jefferson Univ. v. Shalala, 512

U.S. 504, 512 (1994).°

In any event, the decision below unquestionably forecloses

the Commissioner’s longstanding construction of the statute.

Declaring that the “statutory language is unambiguous,”

Pet. App. 8a, the court of appeals held that “a claimant’s

ability to perform ‘previous work’ is not disqualifying if that

work no longer ‘exists in the national economy’” in signifi-

cant numbers, ibid. To the extent the Commissioner’s inter-

pretation is to the contrary, the court declared, “the regu-

4 Respondent’s reliance on the agency’s rationale for the “relevance”

requirement, see Br. in Opp. 5-6, is equally misplaced. The 15-year rule

for “relevance” merely establishes a presumption that makes claims reso-

lution easier, because it eliminates the need to examine every job the

claimant held during her potentially long life. As this Court recently ex-

plained, the Act’s “complexity, the vast number of claims that it engen-

ders, and the consequent need for agency expertise and administrative

experience lead us to read the statute as delegating to the Agency con-

siderable authority to fill in, through interpretation, matters of detail

related to its administration.” Barnhart v. Walton, 122 S. Ct. 1265, 1273

(2002).

5 Respondent also asserts that she “can’t do her former job because

that job is no longer being done anywhere.” Br. in Opp. 6. Under the

Commissioner’s regulations, however, the question is not job availability;

it is the claimant’s physical and mental capacity. See 20 C. F. R.

404.1520(e), 416.920(e) (Commissioner examines “residual functional ca-

pacity and the physical and mental demands of the work [the claimant]

hals] done in the past” to see if the claimant “can still do this kind of

work.”); 20 C.F.R. 404.1560(b), 416.960(b) (Commissioner determines

whether claimant “still hals] the residual functional capacity to do [that]

past relevant work”). If the claimant has the physical and mental capacity

to do her former work, the claimant is not disabled. Changes in the econ-

omy may render the claimant unemployed, but they do not render the

claimant disabled. See pp. 8-9, infra.

6

lation and any Social Security rulings embodying that in-

terpretation conflict with the statute and are * * * invalid.”

Id. at IIa n.4. Respondent thus errs in asserting that the

decision below “does not impair the Commissioner’s ability

to make regulations.” Br. in Opp. 1.

3. The Third Circuit's Decision Is Incorrect

The bulk of respondent’s brief is directed not to whether

this case warrants the Court’s review, but to whether the

Third Circuit’s decision is correct. Echoing the decision

below, respondent argues that, because “‘any other work’

must exist in substantial numbers in the economy so too

must ‘previous work’.” Br. in Opp. 7. For the reasons given

in the petition (at 22-27), however, that does not follow from

the Act’s text. To the contrary, in the Act itself, the words

“which exists in the national economy” immediately follow

the phrase “any other kind of substantial gainful work.” As

a result, they are most naturally understood as modifying

that phrase, not the more distant phrase “previous work.”

See Quang Van Han, 882 F. 2d at 1457.

Further, as the petition also shows (at 22-24), the Third

Circuit’s grammatical analogy and its reliance on “common

usage” are misplaced. The legislative history, moreover,

supports the Commissioner’s construction. See Pet. 27-28.

And the court of appeals’ and respondent’s newfound claim

of textual clarity is severely undermined by the fact that, in

the more than three decades that have elapsed since Section

423(d)(2)(A) was enacted, four courts of appeals have upheld

the Commissioner’s construction and no court of appeals

ever adopted the contrary construction until the decision in

this case. Because the statutory text is at most ambiguous,

the court of appeals erred in displacing the Commissioner’s

reasonable construction with its own. Heckler v. Campbell,

461 U.S. 458, 466 (1983) (review of regulations implementing

Social Security Act “is limited to determining whether the

regulations promulgated exceeded the [Commissioner’s] sta-

tutory authority and whether they are arbitrary and capri-

7

cious”); Bowen v. Yuckert, 482 U.S. 137, 145 (1987) (same);

see Barnhart v. Walton, 122 S. Ct. 1265, 1273 (2002).

Respondent declines to answer those arguments directly.

Instead, she argues that there is no “good reason” for the

Commissioner’s construction as a matter of policy. Br. in

Opp. 8. But the certiorari petition itself (at 25-27) offers

several reasons, which petitioner largely ignores.

First, Congress and the Commissioner are entitled to rely

on the claimant’s physical and mental capacity to perform

her past work as an efficient and accurate measure of her

actual ability to engage in substantial gainful activity,

without inquiring into whether that specific job still exists.

As the petition explains:

Congress required a showing of physical or mental inabil-

ity 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. * * * Congress simply did

not accept the * 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. 25-26 (quoting Pet. App. 23a).

Second, there was good reason for Congress to require

that “other work,” but not “previous work,” exist in signifi-

cant numbers in the national economy. Any inquiry into

whether the claimant can do “other work” is, by nature,

hypothetical and potentially unbounded, since it looks to the

claimant’s ability to perform the myriad jobs she has not

performed before. Congress reasonably chose to circum-

scribe the scope of that inquiry by narrowing the jobs that

may be considered to those that exist in significant numbers

in the national economy. The inquiry into whether the

claimant can perform her past work, in contrast, is concrete,

8

historical, and inherently bounded by the types of jobs the

claimant has actually held before. Congress thus had no

reason to circumscribe the previous-job inquiry by requiring

that a former job exist in significant numbers in the national

economy.

Third, Congress wished to draw a clear distinction be-

tween the disability program and programs concerned with

unemployment. Pet. 26-27. For that reason, Congress de-

fined “disability” as the “inability to engage in any substan-

tial gainful activity by reason of any medically determinable

physical or mental impairment” of the requisite duration.

42 U.S.C. 423(d)(1)(A), 138 20a) 30A) (emphasis added). The

Commissioner’s early regulations accordingly required that

the “physical or mental impairment * * * be the primary

reason for the individual’s inability to engage in substantial

gainful activity.” 20 C.F.R. 404.1502(b) (1961) (emphasis

added). 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, or local or cyclical economic condi-

tions,” the regulations clarified, “such individual may not be

considered under a disability.“ bid. (emphasis added); 20

C. F. R. 404.1502(b) (1969) (same). See Massey v. Celebrezze,

345 F.2d 146, 149 (6th Cir. 1965) (noting Congress’s aware-

ness of those requirements in 1960 legislative history, and

ordering an award of benefits only after “emphasiz[ing] that”

the claimant “was not unemployed because of * * * tech-

nological changes in the industry in which he had been

employed”). Here, respondent’s unemployment resulted

from technological changes that, according to her, made her

former job as an elevator operator obsolete, not from the

onset of physical or mental impairments that prevent her

from performing that prior work.

Contrary to respondent’s submission, that result is not

“absurd,” and the Commissioner nowhere proposes “sending

an applicant back in time to resume a job no longer available

in the economy,” Br. in Opp. 11. Instead, Congress reason-

9

ably concluded that claimants who are physically and men-

tally capable of performing their prior work are not disabled,

because their ability to perform prior work is an individual-

ized and accurate predictor of their ability to engage in

substantial gainful activity. And Congress concluded that

those who lose their prior jobs because of economic or

technological changes, rather than because of the onset of a

physical or mental impairment, should seek unemployment

rather than disability benefits.

The court of appeals’ construction, in any event, generates

anomalies of its own. For example, because the court of

appeals would require any previous work to exist in the

national economy in significant numbers, it would permit an

individual holding a rare or unusual job to quit her job and

collect disability benefits—even if the claimant still can do

that job, and her employer wants her to return. See Pet. 25.

Respondent acknowledges as much. Br. in Opp. 12.

Respondent, however, argues (Br. in Opp. 12-13) that

paying disability benefits to claimants who can work is not

anomalous, because that could happen with respect to claim-

ants who have impairments that are “listed” (or are equiva-

lent to “listed” impairments). “Listed” impairments are, as

an administrative matter, presumed to be sufficiently severe

to preclude substantial gainful activity. See 20 C.F.R.

404.1520(d), 416.920(d). Because the “listings” are presump-

tions, on occasion they may cause benefits to be awarded to

claimants who can work despite presumptively disabling

conditions. Congress, however, specifically endorsed the use

of listings and other presumptions, and their use promotes

uniformity and administrability. See S. Rep. No. 744, supra,

at 49 (“In most cases the decision that an individual is dis-

abled can be made solely on the basis of an impairment, or

impairments, which are of a level of severity presumed

(under administrative rules) to be sufficient so that * * * it

may be presumed that the person is unable to so engage [in

substantial gainful activity] because of the impairment or

impairments.”). Indeed, the listings and other presumptions

10

are critical to the Commissioner’s ability to resolve the

millions of disability claims filed each year. See Cleveland v.

Policy Mgmt. Sys. Corp., 526 U.S. 795, 804 (1999) (“presump-

tions” necessary “to produce” listings “grow out of the need

to administer a large benefits system efficiently”); Yuckert,

482 U.S. at 153 (presumptions in sequential evaluation pro-

cess “contribute to the uniformity and efficiency of disability

determinations”).

Respondent, by contrast, nowhere shows that Congress

intended to award benefits to claimants who can, but choose

not to, work in their former jobs, based not on the presumed

severity of the claimants’ medical condition, but on the rarity

of their former positions. Nor would awarding benefits to

such individuals serve administrative efficiency or uniform-

ity. To the contrary, respondent’s and the court of appeals’

approach would unnecessarily complicate claims resolution.

Under that approach, the Commissioner not only would have

to determine whether the claimant is physically and men-

tally capable of performing her prior job, but also would have

to conduct a potentially difficult inquiry into whether the

prior job exists in significant numbers in the national econ-

omy. Given the millions of disability claims filed each year,

that burden would be significant. See Pet. 28-29; Pet. App.

18a (Rendell, J., dissenting).

In any event, even setting aside programmatic concerns,

there is no justification for judicial imposition of requirement

in one circuit while the Commissioner follows a different rule

in the rest.

* * * * *

For the reasons stated above, and in the petition for a writ

of certiorari, it is respectfully submitted that the petition

should be granted.

THEODORE B. OLSON

Solicitor General

JANUARY 2003