Petitioners Brief — Barnhart v. Thomas
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FILED
MAY 3 ~ 2093
No. 02-763
In the Supreme Court of the United States
OFFICE
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY, PETITIONER
Vv.
PAULINE THOMAS
ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BRIEF FOR THE PETITIONER
LISA DE SoTo
General Counsel
THOMAS W. CRAWLEY
Deputy General Counsel
CHARLOTTE J. HARDNETT
Associate General Counsel
Office of Program Litigation
JAMES H. GOLD
Attorney
BARBARA L. SPIVAK
Regional Chief Counsel,
Region II
RICHARD A. HILL, JR.
Deputy Regional Chief
Counsel, Region I]
SUSAN REISS
Senior Attorney, Region II
Social Security Administration
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
sss
—
QUESTION PRESENTED
Title II and Title XVI of the Social Security Act provide
that “disability” is the “inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.” 42
U.S.C. 423(d)(1)(A); 42 U.S.C. 1882c(a)(3)(A). Titles II and
XVI of the Act further provide that a claimant “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
“significant numbers” in “the national economy.” 42 U.S.C.
423(d)(2)(A); 42 U.S.C. 1382e(a)(3)(B). The question pre-
sented is:
Whether the Commissioner of Social Security may
determine that a claimant is not “disabled” within the mean-
ing of the Act because the claimant remains physically and
mentally able to do her previous work, without determining
whether that previous work exists in significant numbers in
the national economy.
(I)
— Ss
— — ͤ —Æ—U— — — — —
TABLE OF CONTENTS
Opinions below
Jurisdicti
Statutory provisions involved
Statement
A. The statutory and regulatory framework
B. Proceedings in this case
Summary of argument 14
Argument:
The Commissioner may deny disability benefits to a
claimant who remains physically and mentally ca-
pable of doing her previous work without inquiring into
whether that previous work exists in significant
numbers in the national economy 17
A. The Commissioner’s construction of the Act is
entitled to great deference 21
B. The Commissioner’s construction is supported by
the text of 42 U.S.C. 423(d) 22
1. The text and structure of Section 423(d)(2)(A)
support the Commissioner's distinct treatment
of “previous” and “other” work 24
2. This Court’s decisions and common usage con-
tradict the court of appeals’ conclusion that the
words “any other” in Section 423(d)(2)( A) fore-
close the Commissioner’s construction ................
C. The Commissioner’s construction is compelled
by the Act’s evolution and history
1. Congress adopted the definition of disability
in Section 423(d)(1)(A) against the backdrop
of the Commissioner’s construction and re-
peatedly endorsed it thereafter 34
co nw NK — —
(IIT)
IV
Table of Contents—Continued: Page
2. The court of appeal’s construction of Section
423(d)(2)(A) is inconsistent with Congress’s
intent in enacting that provision 37
3. Three additional decades of experience in the
disability programs confirm the Commissioner’s
construction 39
D. The Commissioner’s longstanding construction
serves sound purposes in the administration of
the disability programs 41
Conclusion 47
TABLE OF AUTHORITIES
Cases:
Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002) 43
Barnhart v. Walton, 122 S. Ct. 1265 (2002) ............. 20-21, 34, 41
Bowen v. Yuckert, 482 U.S. 137 (1987) passim
California v. Hodari D., 499 U.S. 621 (1991) 24
Chevron U.S.A. Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837 (1984) 21
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795
(1999) 6
Commodity Futures Trading Comm'n v. Schor,
478 U.S. 833 (1986) 36, 41
Davis v. United States, 495 U.S. 472 (1990) 22
EEOC v. Associated Dry Goods Corp., 449 U.S. 590
(1981) 22
Edwards’ Lessee v. Darby, 25 U.S. (12 Wheat) 206
(1827) 22
FTC v. Mandel Bros., 359 U.S. 385 (1959) 16, 26, 29-30
Garcia v. Secretary of HHS, 46 F.3d 552 (6th Cir.
1995) 20, 31, 41, 47
Good Samaritan Hosp. v. Shalala, 508 U.S. 402
(1993) 22
V
Cases Continued: Page
Kolman v. Sullivan, 925 F. 2d 212 (7th Cir. 1991) 31, 32
Knight v. Chater, 55 F.3d 309 (7th Cir. 1995) 32
Heckler v. Campbell, 461 U.S. 458 (1983) 6, 21, 42
Lorillard v. Pons, 434 U.S. 575 (1978) 35
Mandel Bros. v. FTC, 254 F.2d 18 (7th Cir. 1958) 30
Massey v. Celebrezze, 345 F.2d 146 (6th Cir. 1985) 19
May v. Gardner, 362 F.2d 616 (6th Cir. 1966) ............ 4, 19, 41
NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) 36, 41
Nobleman v. American Sav. Bank, 508 U.S. 324
(1993) 26, 30
Norwegian Nitrogen Prods. Co. v. United States,
288 U.S. 294 (1933) 22
Pass v. Chater, 65 F.3d 1200 (4th Cir. 1995) 13, 20, 31,
41, 42, 43
Quang Van Han v. Bowen, 882 F.2d 1453
(9th Cir. 1989) 20, 26, 31,
41, 42, 43
Rater v. Chater, 73 F.3d 796 (8th Cir. 1996) ........... 20, 31, 41
Resolution Trust Corp. v. Nernberg, 3 F.3d 62 (3d
Cir. 1993) 30
Reyes Robles v. Finch, 409 F. 2d 84 (Ist Cir. 1969) 19, 41
Schweiker v. Gray Panthers, 453 U.S. 34 (1981) 21
Sims v. Apfel, 530 U.S. 103 (2000) 6
Sullivan v. Zebley, 493 U.S. 521 (1990) 21
Statutes, regulations and rule: :
Social Security Act, 42 U.S.C. 401 et se % ũ 1
Tit. II, 42 U.S.C. 401 et seg. ..... - 2,5,9
42 U.S.C. 405(a) 6, 21
42 U.S.C. 405(b) 6
42 U.S.C. 421(a) 6
42 U.S.C. 421(a)(2) 6
42 U.S.C. 421(c) 6
42 U.S.C. 423(d) 14
42 U.S.C. 423(d)(1(A) passim
42 U.S.C. 423(d)(2)(A)
VI VII
Statutes, regulations and rule Continued: Page Regulations and rule Continued: Page
Tit. XVI, 42 U.S.C. 1381 et seg. ———.— 2,5, 9, 21 Section 404.1520(e) 7,27
42 U.S.C. 1382e(a)(3)(A) 5 Section 404.1520(f) 8, 10, 27
42 U.S.C. 1382¢e(a)(3)(B) 5, 44 Section 404.1520(f)(1) (1981) 40
42 U.S.C. 1383b(a) 6 Section 404.1560(b) 7. 27
42 U.S.C. 1383(d)(1) 21 Section 404.1560(c) 8
Social Security Amendments of 1954, ch. 1206, § 106, Section 404.1561 8
68 Stat. 1052: Section 404, Subpt. P. App. 2 § 200.00(d) 42
68 Stat. 1079 3 Pt. 416 1
68 Stat. 1080 3 Section 416.9 20a) 7
Social Security Amendments of 1956, ch. 836, § 103, Section 416.920(b) 7
70 Stat. 815 3-4 Section 416.920(c) 7
Social Security Amendments of 1965, Pub. L. No. Section 416.920(d) 7
89-97, § 303(a)(1), 79 Stat. 366 36 Section 416.920(e) 7,27
Social Security Amendments of 1967, Pub. L. No. Section 416.920(f) 8, 10, 27
90-248, § 158(b), 81 Stat. 868 4 Section 416.960(b) 7.27
Social Security Amendments of 1972, Pub. L. No. Section 416.960(c) -
92-603, Tit. III, § 301, 86 Stat. 1465 5 Section 416.961 8
Social Security Disability Benefits Reform Act of 1984, Section 416.1429 6
Pub. L. No. 98-460, 98 Stat. 1794 40 Sup. Ct. R. 32.3 3
Social Security Independence and Program Improve- Miscellaneous:
ments Act of 1994, Pub. L. No. 103-296, §§ 101-106, 113 Cong. Ree. 23,065 (1967) 2
a : : Commissioner of Social Security, Disability Freeze
apg State Manual (May 16, 1955) 3, 34-35
Pt. 406 1 25 Fed. Reg. 8100 (1960) 4, 18, 19, 36
Section 404.929 6 33 Fed. Reg. (1968):
Section 404.1502(b) (1961) 4, 18, 36 p. 11,749 6, 27, 39
Section 404.1502(b) (1965) 19, 36 p. 11,751 6, 27, 39
Section 404.1502(b) (1969) 6, 27, 39 43 Fed. Reg. (1978):
Section 404.1503(e) (1979) 40 p. 55,350 47
Section 404.1503(f) (1979) 40 P — 2
Section — : 46 Fed. Reg. 66,566 (1980) 40
Section 404.1520(c) 7 H. R. Rep. No. 1698, 83d Cong., 2d Sess. (1954) 2-3, 34
Section 404.1520(d) 7 ot Rep. — ae Cong., Ist — . — 2
Section 404.1520(e) (1981) * R. Rep. No. 213, Cong. , Ist EEE 37
VIII
Miscellaneous - Continued: Page
H.R. Rep. No. 544, 90th Cong., Ist Sess. (1967) 17, 23,
38, 39, 44
H.R. Rep. No. 618, 98th Cong., 2d Sess. (1984) 40, 41
S. Rep. No. 1987, 83d Cong., 2d Sess. (1954) 2, 3, 34
S. Rep. No. 744, 90th Cong., Ist Sess. (1967) 5, 17, 23,
37, 38, 39, 45
2A N. Singer, Sutherland on Statutory Construction
(6th ed. 2000) ........ a — 31
Social Security Ruling (SSR) 82-40 (1982) (available in
1982 WL 31388) 8, 19, 28, 40
Social Security Ruling (SSR) 82-62 (1982) 44
Social Security Administration, Program Operations
Manual System (1996) pensnemnitnnesenvscesnenanees 27
Staff of the Subcomm. on the Administration of the
Social Security Laws of the House Comm. on Ways
and Means, 86th Cong., 2d Sess., Preliminary Report
on Administration of Social Security Disability
Insurance Program (Comm. Print 1960) 35, 46, 47
In the Supreme Court of the United States
No. 02-763
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY, PETITIONER
v.
PAULINE THOMAS
ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BRIEF FOR THE PETITIONER
* 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 dis-
trict 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, and October 15, 2002,
Justice Souter extended the time within which to file a peti-
tion for a writ of certiorari to and including October 21, 2002,
and November 18, 2002, respectively. The petition was filed
on November 18, 2002, and was granted on February 24,
2003. The jurisdiction of this Court rests on 28 U.S.C.
1254(1).
STATUTORY PROVISIONS INVOLVED
Relevant provisions of the Social Security Act, 42 U.S.C.
401 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.
(1)
2
STATEMENT
Title II of the Social Security Act (the Act), 42 U.S.C. 401
et seg., provides for the payment of insurance benefits to
disabled workers. Title XVI of the Act, 42 U.S.C. 1381 et
seq., provides for the payment of Supplemental Security In-
come (SSI) benefits to disabled individuals if they satisfy
certain financial need requirements. This case concerns the
showing necessary to establish a “disability” under those
programs. In particular, it presents the question whether
the Commissioner of Social Security may find that a claimant
is not disabled because she retains the physical and mental
capacity to do a job she previously held, without inquiring
whether that previous work 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 benefits for covered workers who retired at age 65,
but made no provision for “a lower retirement age for those
who are demonstrably retired” before age 65 “by reason of a
permanent and total disability.” H.R. Rep. No. 1189, 84th
Cong., Ist Sess. 3 (1955). To the contrary, as the program
was originally constituted, a covered worker’s right to bene-
fits upon retirement could be “impaired or * lost en-
tirely when workers hald] periods of total disability before
reaching retirement age.” S. Rep. No. 1987, 83d Cong., 2d
Sess. 20 (1954); H.R. Rep. No. 1698, 83d Cong., 2d Sess. 22
Responsibility for administering Titles II and XVI of the Act was
previously vested in the Secretary of Health and Human Services. In
1994, the Social Security Administration was made an independent
agency, headed by the Commissioner of Social Security. See Social
Security Independence and Program Improvements Act of 1994, Pub. L.
No. 103-296, §§ 101-106, 108 Stat. 1465-1477. For the sake of consistency,
this brief uses the term “Commissioner” to include the Commissioner of
Social Security and all predecessor officers responsible for administering
the disability programs.
3
(1954). To address that concern, Congress in 1954 enacted a
program to “freeze * * * old-age and survivors insurance
status during” any “extended” period of “total disability.” S.
Rep. No. 1987, supra, at 20; H.R. Rep. No. 1698, supra, at 22;
see Social Security Amendments of 1954, ch. 1206, § 106, 68
Stat. 1079, 1080.
The resulting “disability freeze” provisions of the Act
defined “disability” (in relevant part) as the “inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
ean be expected to result in death or“ last the specified
duration. § 106, 68 Stat. 1080. The accompanying House and
Senate Reports expressed the expectation that the stan-
dards established by the Commissioner “will reflect the
requirement that the individual be disabled not only for his
usual work but also for any type of substantial gainful activ-
ity.” S. Rep. No. 1987, supra, at 21; H.R. Rep. No. 1698,
supra, at 23. Implementing that program, the Commis-
sioner’s 1955 Disability Freeze State Manual explained that,
because the inability to engage in substantial gainful activity
had to be “by reason of his impairment,” an individual would
be disabled only if the impairment was “the cause of inability
to work.” Disability Freeze State Manual § 314.A (May 16,
1955). A freeze in status thus was not granted to individu-
als who were “unemployed by reason of economic conditions”
or “unavailability of jobs.” Ibid.
Two years after establishing the disability freeze pro-
gram, Congress created the Title II disability insurance
program at issue here to provide monetary benefits to
covered workers during extended periods of total disability.
See Social Security Amendments of 1956, ch. 836, § 103, 70
2 The Disability Freeze State Manual was lodged with this Court in
Bowen v. Yuckert, No. 85-1409. Consistent with Supreme Court Rule 32.3,
another copy will be lodged with the Court upon request. A copy has been
served on respondent.
4
Stat. 815. The new insurance program used the same def-
inition of “disability” as the disability freeze program. See
42 U.S.C. 423(d)(1)(A).
The Commissioner’s regulations implementing the dis-
ability insurance program, consistent with the disability
freeze program, differentiated between consideration of the
claimant’s capacity to perform her “prior” work and her
capacity to perform “any other kind” of work, but required
that it be the impairment that prevents the claimant from
doing either. The 1960 regulations, for example, provided
that a claimant must show “not only that he 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.” 25 Fed. Reg. 8100 (1960)
(codified at 20 C.F.R. 404.1502(b) (1961)). The regulations
continued:
The physical or mental impairment must be the primary
reason for the individual’s inability to engage in any sub-
stantial gainful activity. Where, for instance, an individ-
ual remains unemployed 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. (emphases added). See, e.g., May v. Gardner, 362 F.2d
616, 618 (6th Cir. 1966) (discussed at p. 19, infra).
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 that,
“(for purposes of paragraph [(d))(1)(A)”:
—— — — —
5
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, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific
job vacancy exists for him, or whether he would be hired
if he applied for work.
42 U.S.C. 423(d)(2)(A) (emphases added). “{W]ork which
exists in the national economy” is defined by Section
423(d)(2)(A) to mean “work which exists in significant num-
bers either in the region where such individual lives or in
several regions of the country.” The accompanying Senate
and House Reports indicate that Section 423(d)(2)(A) was
enacted in response to judicial decisions that had expanded
the disability program by emphasizing the individual’s
ability to obtain employment in the job market, rather than
the individual’s functional (physical or mental) capacity to
work. See, e. g., S. Rep. No. 744, 90th Cong., Ist Sess. 47-48
(1967). Section 423(d)(2)(A) accordingly “reemphasize[s] the
predominant importance of medical factors” rather than job-
market considerations “in the disability determination.” Id.
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; Yuckert, 482 U.S. at 140. In enacting
Title XVI, Congress incorporated the definition of “dis-
ability” used in Title II. 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 regu-
6
late 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),
as well as “written guidelines” for benefits determinations,
42 U.S.C. 421(a)(2) and (e), 1383b(a).* As explained above,
the Commissioner’s guidelines and regulations required at
the outset that the claimant’s impairment (rather than fac-
tors such as economic conditions) prevent the claimant from
performing her prior work, and that the impairment (rather
than such other factors) prevent the claimant from per-
forming any other type of substantial gainful activity. See
p. 4, supra. After Congress added Section 423(d)(2)(A) in
1967, the Commissioner’s regulations retained those re-
quirements. See 33 Fed. Reg. 11,749, 11,751 (1968) (codified
as 20 C. F. R. 404.1502(b) (1969)); see also p. 39, infra.
The Commissioner comprehensively revised the reg-
ulations in 1978 to formalize a five-step sequential evaluation
process for adjudicating disability claims. 43 Fed. Reg.
55,363 (1978); see Heckler v. Campbell, 461 U.S. 458, 461
(1983); Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,
804 (1999); Yuckert, 482 U.S. at 140-142. In doing so, the
Commissioner retained the requirement that the impairment
rather than some other cause prevent the claimant from
performing her prior work.
Under the five-step process, a claimant may be found
disabled or not disabled at various points; once that occurs,
the evaluation does not proceed further. 20 C.F.R.
3 The Act provides that the initial disability determination may be
made by a state agency “acting under the authority and supervision of”
the Commissioner. Yuckert, 482 U.S. at 142; see 42 U.S.C. 421(a) and (c),
1383b(a). If the state agency finds the claimant not disabled, the claimant
may obtain a formal hearing before an Administrative Law Judge (ALJ) in
the Social Security Administration (SSA) and review of the ALJ’s decision
by SSA’s Appeals Council. 42 U.S.C. 405(b); 20 C. F. R. 404.929, 416.1429;
Sims v. Apfel, 530 U.S. 103, 105 (2000).
Fe
7
404.1520(a), 416.920(a). Steps one through three focus on
whether (1) the claimant is currently working, (2) the
impairment is sufficiently severe to be potentially disabling,
and (3) the impairment or combination of impairments is (or
is equivalent to) a “listed” impairment presumed to be so
severe as to preclude any gainful activity.
Step four focuses on the claimant’s physical and mental
ability to do her past work, while step five focuses on the
claimant’s ability to do other work. At step four, the
Commissioner reviews the claimant’s “residual functional
capacity and the physical and mental demands of the work
[the claimant) hals] done in the past.“ 20 C.F.R. 404.1520(e),
416.920(e). If the claimant “can still do this kind of work,”
the Commissioner will find that the claimant is “not
disabled.” Ibid; accord 20 C. F. R. 404.1560(b), 416.960(b) (“If
you still have the residual functional capacity to do your past
relevant work,” the Commissioner “will determine that you
are not disabled without considering your vocational factors
of age, education, and work experience.”). The regulations
governing step four do not provide for a determination
whether the claimant’s past work exists in significant num-
bers in the national economy.
At step one, the Commissioner asks whether the claimant is
currently engaging in substantial gainful activity; if so, the el: imant 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 or combination of impairments is not that
severe, the claimant is not disabled. Ibid. At step three, the Com-
missioner determines whether the claimant’s impairment or combination
of impairments is on a list of impairments that are presumed to prevent
any gainful activity (or is equal in severity to a listed impairment). 20
C. F. R. 404.1520(d), 416.920(d). If the claimant has such an impairment,
she is deemed disabled without further inquiry. /bid.
8
If the claimant is unable to do “any work [she] hals] done
in the past because [she] ha[s] a severe impairment,” 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. At step five, the Commissioner considers
the claimant’s residual functional capacity” and “age,
education, and work experience” to see if the claimant “can
do any other work.” Ibid. By “other work,” the Com-
missioner means] jobs that exist in significant numbers in
the national economy.” 20 C. F. R. 404.1560(c), 416.960(c).
The Commissioner’s construction is also embodied in a
formal Social Security Ruling (SSR) issued in 1982. Ad-
dressing the relevance of a claimant’s past work in foreign
countries, the Commissioner explained in SSR 82-40 that it
is not necessary to determine whether a claimant’s past
work exists in the United States economy:
If a claimant can meet the sitting, standing, walking, lift-
ing, manipulative, intellectual, emotional and other
physical and mental requirements of a past job, he or she
is still functionally capable of performing that job re-
gardless of the fact that the individual no longer resides
in the country where the past work was performed.
SSR 82-40 (1982) (available in 1982 WL 31388, at *2). “It is
only after a claimant proves that he or she is not able to do
his or her previous work [wherever located] that the burden
shifts to the [Commissioner] 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. The Commissioner explained that Section
423(d)(2)(A) “does not qualify ‘previous work’ but does
specify that ‘other . . work’ must exist in significant
numbers in the national economy.” Ibid.; see pp. 27-28,
infra.
9
B. Proceedings In This Case
1. Respondent worked as a housekeeper until 1988, when
she had a heart attack. Respondent then worked as an
elevator operator until she was laid off on August 25, 1995,
when her position was eliminated. In June 1996, at age 53,
respondent applied for disability benefits under Title II and
Title XVI, citing heart and back conditions. Pet. App. 25a;
Pet. 9. 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 Admin-
istrative Law Judge (ALJ), who likewise found that she is
not disabled. Pet. App. 38a-45a. The ALJ noted that,
although respondent claimed that she was disabled in part
by hypertension and cardiac arrhythmia, respondent’s cardi-
ologist concluded that she was “doing well without chest pain
or shortness of breath,” and “was not disabled.” Jd. at 40a;
see id. at 29a (cardiologist “found no evidence of organ dam-
age” and “characterized [respondent's] physical examination
as ‘unremarkable’”). The ALJ also found that, although
respondent claimed that she had suffered a stroke in August
1997, that “appear(ed] to be an exaggeration.” Id. at 43a.
The hospital records showed that respondent had “a tran-
sient ischemic attack,” ibid., an episode that “usually lasts
two to thirty minutes, but then abates without
persistent neurologic abnormalities,” id. at 25a n.5. “Upon
discharge, [respondent] was allowed to resume normal
activities.” Id. 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. Jd. at 42a.
Respondent had not provided medical records to show that a
fracture had occurred, and At he 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.
10
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 five-step
sequential evaluation process. Pet. App. 42a; see pp. 6-7 &
note 4, supra. Nonetheless, the ALJ ultimately found that
respondent was not disabled at step four of that 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. * * *
The claimant’s past relevant work as an elevator operator
did not require the performance of work-related activities
precluded by the above limitations.”).
The ALJ rejected respondent’s objection that, in view of
the possibility that the job of elevator operator no longer
exists in significant numbers in the national economy, 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); see Pet. App. 43a-44a. Relying on
SSR 82-40 (discussed at p. 8, supra), the ALJ explained that,
at step four, the Commissioner’s regulations require only a
determination of the claimant’s physical and mental capacity
to meet the demands of a past job, and that there is no
requirement for the ALJ to find that the particular job
exists in significant numbers in the national economy. Pet.
App. 43a. “If the claimant can meet the sitting, standing,
walking, lifting, * * * and other physical and mental re-
quirements of a past job, she is capable of performing that
job. It is only after the claimant has proved that she cannot
— —— —
11
do her previous work that the burden shifts to the Com-
missioner and the vocational rules are applied.” Id. at 43a-
44a.
The Social Security Administration’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 sup-
port [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,” and no “medical evidence to support her claim of
musculoskeletal problems,” ibid.
The district court rejected respondent’s argument that,
because “she no longer has the option to work as an elevator
operator,” her ability to perform her past job is irrelevant.
Pet. App. 31a; see id. at 31a-32a. “Disability insurance,” the
court explained, “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.” Jd. at 28a.
3. a. Sitting en banc, a divided court of appeals reversed.
Pet. App. la-23a. The court first concluded that the lan-
guage of the Act precludes the Commissioner from finding a
lack of disability based on the claimant’s physical and mental
—
3 — ——— ALL} chavtd
ve disregarded a two-sentence letter from her treating physician
which stated that respondent is disabled. Pet. App. 32a. —
plained that the physician “did not provide any laboratory or clinical evi-
dence to support the assertion that [respondent] was disabled,” and that
the assertion was contradicted by “other physicians [who] found [that re-
spondent] was able to work,” and by the absence of “hospital records indi-
cating that (respondent) has any functional limitations.” Id. at 32a, 33a.
12
capacity to perform her “previous work,” unless that pre-
vious work exists in significant numbers in the national
economy. Id. at 8a. Section 423(d)(2)(A), the court observed,
provides that a claimant “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 Hut cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy.” Jd. at 7a (emphasis omitted). In the court’s view,
“(t]he phrase ‘any other’ * * makes clear that an
individual’s ‘previous work’ was regarded as a type of ‘sub-
stantial 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 also believed that, even if the “statu-
tory language were ambiguous,” the contrary construction
would lead to “absurd results.” Pet. App. 9a. The court
perceived “no plausible reason why Congress might have
wanted to deny benefits to an otherwise qualified person
simply because that person, although unable to perform any
job that actually exists in the national economy, could
perform a previous job that no longer exists.” Ibid. The
court therefore concluded that, if respondent “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 pre-
vent her from engaging in any work that actually exists.” Id.
at lla-12a.
The court rejected the Commissioner’s position that
requiring a claimant’s previous job to exist in significant
numbers “would convert disability benefits into unemploy-
ment benefits.” Pet. App. 12a. The court likewise was
unmoved by the administrative burden created by its con-
struction. The court acknowledged that the inquiry into the
OR .
13
claimant’s previous work “was designed 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
background.” 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 types of work.” Id. at 12a-13a
n.5. Nevertheless, the court concluded that, contrary to the
regulatory framework, 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.
Id. at 15a-16a. The court of appeals acknowledged that its
decision is inconsistent with the decisions of four other
circuits. See Pet. App. 8a n.2, 14a.
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 “if that condition is met” does the inquiry move
on to whether a claimant has “the ability to engage in ‘any
other kind of substantial gainful work which exists in the
national economy.“ Ibid.
The majority reached the contrary result, the dissent
stated, by “rewriting the statute” and “engraft{ing]” a new
requirement onto the otherwise “perfectly clear first re-
quirement” that the claimant be “unable to do his previous
work.” Pet. App. 17a. The dissent explained that, consistent
with the Act, “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 v. Chater, 65 F.3d
1200, 1204 (4th Cir. 1995)). In the dissent’s view, the
14
majority’s interpretation represents a radical change in the
regulatory regime that will “wreak havoc with the
evidentiary aspects of the administrative process.” [bid.
The dissent also rejected the majority’s suggestion 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 shoul”
end there with a finding that claimant is not disabled.“ .
App. 19a. Under the statutory framework, the dissent
reasoned, ¶plrevious 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 em-
ployed in her past job, but that she is able to do a certain
level of work. If Congress and the regulatory body charged
with implementing the statutory scheme 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.
SUMMARY OF ARGUMENT
A. The Commissioner of Social Security has long con-
strued the term “disability” in 42 U.S.C. 423(d) to require
that the claimant have a physical or mental impairment that
precludes her from doing her former work, without any
further inquiry into whether that former work exists in sig-
nificant numbers in the national economy. Under this
Court’s cases, that construction of the Act is entitled to sub-
stantial deference, particularly in view of the complexity of
the statutory scheme and the Commissioner’s expertise.
Such deference is further warranted where, as here, the
Commissioner’s construction dates from the program’s
earliest days.
15
B. 1. The Commissioner’s construction is supported by
the Act’s text. Since the disability insurance program’s
inception in 1956, the Act has provided that “disability”
means the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment” of the requisite severity and duration.
42 U.S.C. 423(d)(1)(A) (emphasis added). Construing and
implementing the causation requirement imposed by the
phrase “by reason of,” the Commissioner has always re-
quired that it be the impairment rather than a factor such as
technological change that disables the claimant both for his
usual work, and for any type of substantial gainful activity.
The court of appeals did not question that construction of
the “by reason of” requirement in Section 423(d)(1)(A).
Instead, it held that 42 U.S.C. 423(d)(2)(A) precludes the
Commissioner from denying benefits based on a claimant’s
physical or mental capacity to do her former job unless that
job exists in significant numbers in the national economy.
The court of appeals thus would permit an award of benefits
where the claimant becomes unemployed not because of her
impairment but rather because of, for example, technological
changes in the industry in which she has worked. That
treatment of Section 423(d)(2)(A), as a restriction on the
Commissioner’s authority to deny benefits, is foreclosed by
Bowen v. Yuckert, 482 U.S. 137 (1987), which held that it
limits her “authority to grant disability benefits, not to deny
them,” id. at 148 (emphasis added).
In any event, Section 423(d)(2)(A) independently supports
the Commissioner’s construction. Section 423(d)(2)(A) states
that, “[flor purposes of” Section 423(d)(1)(A), 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
16
work which exists in the national economy” in “significant
numbers.” 42 U.S.C. 423(d)(2)(A) (emphases added). As a
structural matter, the dependent clause “which exists in the
national economy” immediately follows the phrase “other
kind of substantial gainful work” and therefore is most
naturally read as modifying that phrase alone. See, e.g., FTC
v. Mandel Bros., 359 U.S. 385, 389 & n.4 (1959) (applying rule
of last antecedent to limiting clause).
2. The court of appeals reached the contrary result by
relying on the phrase “any other” in Section 423(d)(2)(A),
holding that it “makes clear that an individual’s ‘previous
work’ was also regarded as a type of ‘substantial gainful
work which exists in the national economy.’” Pet. App. 8a.
“When a sentence sets out one or more specific items fol-
lowed by ‘any other’ and a description,” the court stated,
“the specific items must fall within the description.” Ibid.
(emphasis added). That novel rule of syntax is contradicted
by Mandel Brothers, which reversed a court of appeals
decision that had employed indistinguishable reasoning
based on the words “any other.” The words “any other” in
Section 423(d)(2)(A) merely signify that “previous work” is a
“kind of substantial gainful work”; they do not mean that
“previous work” must “exist in the national economy” in
“significant numbers.”
C. Congress enacted the original definition of “disability”
in 1956 against the backdrop of the Commissioner’s con-
struction of an identical definition in the disability freeze
program. In the more than four decades since, Congress has
repeatedly revisited, revised, and amended the definition of
disability. In doing so, Congress has not only left the
Commissioner’s construction unaltered, but has endorsed it.
The enactment of Section 423(d)(2)(A) in 1967 was in-
tended to ratify, not overrule, the Commissioner’s construc-
tion of the term “disability.” The legislative history of that
provision specifically recognized that “previous” work and
17
“other” work are treated differently under the program, and
described the clause “which exists in the national economy”
as applying to “other” work but not “previous work.” See
H.R. Rep. No. 544, 90th Cong., Ist Sess. 30 (1967); S. Rep.
No. 744, 90th Cong., Ist Sess. 48-49 (1967). Since the 1967
amendments, Congress has comprehensively reviewed the
disability programs and amended the Act’s disability
provisions in other respects, but has not questioned the
construction at issue in this case.
D. The Commissioner’s longstanding interpretation
serves sound purposes in the adjudication of claims under
the vast Social Security disability program. The ability to
perform a former job is the most concrete, reliable and
administrable measure of the individual’s abilities—the
capacity to work—whether or not that particular job exists
in significant numbers. The court of appeals’ interpretation,
furthermore, leads to absurd results, because it allows
individuals to leave available jobs they can do to collect
benefits if their former jobs are unusual. Finally, the Com-
missioner’s rule prevents benefits from being awarded to a
claimant who has become unemployed for a reason other
than disability, such as technological change in the industry
where she worked. It is thus consistent with Congress’s
intent to establish a disability program, not an unemploy-
ment program.
ARGUMENT
THE COMMISSIONER MAY DENY DISABILITY
BENEFITS TO A CLAIMANT WHO REMAINS PHYSI-
CALLY AND MENTALLY CAPABLE OF DOING HER
PREVIOUS WORK, WITHOUT INQUIRING INTO
WHETHER THAT PREVIOUS WORK EXISTS IN
SIGNIFICANT NUMBERS IN THE NATIONAL
ECONOMY
For the more than four decades that the Social Security
Act has included a disability program, the Commissioner of
18
Social Security has construed the term “disability” to
require that the claimant’s physical or mental impairment
preclude her from doing her former work, without any
further inquiry into whether that former work exists in
significant numbers in the national economy. That con-
struction ensures that claimants receive benefits only when
a physical or mental impairment, rather than the job market
or technological change, is responsible for the claimant’s
inability to work. It promotes sound and efficient admini-
stration of the disability program, in which more than two
million claims are filed each year, by permitting the Com-
missioner to rely on the most concrete and accurate indicator
of the level of work the claimant can do. And it is supported
by the text, structure, history, and purposes of the disability
program.
The basic definition of disability, enacted in 1956, provides
that “disability” means the “inability to engage in any
substantial gainful activity by reason of any medically deter-
minable physical or mental impairment” of the requisite
severity and duration. 42 U.S.C. 423(d)(1)(A) (emphasis
added). Construing and implementing the causation re-
quirement imposed by the phrase “by reason of,” the Com-
missioner has always required that it be the impairment
that disables the claimant both for “his usual work,” and “for
any other type of substantial gainful activity.” For example,
anticipating the text Congress later enacted as Section
423(d)(2)(A), the Commissioner’s 1960 regulations inter-
preting Section 423(d)(1)(A) provided that a claimant must
not only be “incapable of performing his prior, usual or
regular work,” but also lack “the capacity to engage in any
other kind of substantial gainful work, taking into account
his age, education, experience and skills.” 25 Fed. Reg. 8100
(1960) (codified at 20 C.F.R. 404.1502(b) (1961)). The regu-
lations continued: “The physical or mental impairment must
be the primary reason for the individual’s inability to en-
19
gage in substantial gainful activity. Where, for instance, 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 * * * such individual may not be considered under
a disability.” /bid. (emphases added); p. 4, supra; see also 20
C. F. R. 404.1502(b) (1965).
Thus, in May v. Gardner, 362 F. 2d 616, 618 (6th Cir. 1966),
the court of appeals affirmed the denial of benefits to a
claimant who had “failed to establish” that he was “disabled
from following his usual occupation as dispatcher in the
mines,” even though such work was no longer available. The
court explained: “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
Massey v. Celebrezze, 345 F.2d 146, 149 (6th Cir. 1965)
(noting Congress’s awareness of the Commissioner’s rules,
and ordering an award of benefits only after emphasizling!
that” the claimant “was not unemployed because of * * *
technological changes in the industry in which he had been
employed“).
When Congress enacted Section 423(d)(2)(A) in 1967, it
codified the separate treatment of former work and other
work under the Commissioner’s existing regulations. By its
terms, and as confirmed by the accompanying House and
6 See also Reyes Robles v. Finch, 409 F.2d 84, 86 & n.1 (Ist Cir. 1969)
(relying on pre-1967 decisions to hold that, where the Commissioner
“found that Plaintiff could still work at the previous jobs he had had,” it
was error for the district court to require an examination “as to * * * the
availability of this type of work in the community”: “Only when a claimant
shows that he is not able to return to his former work is there a necessity
for an administrative showing of available work.”).
20
Senate Reports, Section 423(d)(2)(A) does not require that
“previous work” exist in significant numbers in the national
economy; it imposes that requirement only for “other” work.
Indeed, until the court of appeals’ decision in this case, every
court of appeals that had resolved this issue under Section
423(d)(2)(A) agreed that a claimant’s ability to do her former
work precludes a finding of disability, whether or not that
former work exists in significant numbers in the national
economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1457
(9th Cir. 1989); Pass v. Chater, 65 F.3d 1200, 1203-1204 (4th
Cir. 1995); Garcia v. Secretary of HHS, 46 F.3d 552, 558 (6th
Cir. 1995); Rater v. Chater, 73 F.3d 796, 799 (8th Cir. 1996).
In this case, however, the court of appeals invalidated the
Commissioner’s longstanding construction as foreclosed
by Section 423(d)(2)(A). Relying almost exclusively on a
dubious grammatical construction of that provision, the
court of appeals held that the Commissioner may not deny a
disability claim based on the claimant’s physical and mental
capacity to do her former work unless that work exists in
significant numbers in the national economy. Pet. App. 7a-
8a, 12a. Under the court of appeals’ construction, a claimant
may be entitled to benefits even though her impairment does
not prevent her from meeting the demands of her prior job,
if that job no longer exists in significant numbers as a result
of (for example) technological changes in the industry. And
that apparently would be true even if the claimant quit her
position in order to apply for benefits.
In so holding, the court of appeals rejected the most
natural reading of Section 423(d)(2)(A)’s text, disregarded
the Commissioner’s longstanding construction, ignored an
important decision of this Court construing that provision,
and overlooked decades of congressional enactments, review,
and amendments, which demonstrate that “Congress in-
tended the Agency’s interpretation, or at least understood
the interpretation as statutorily permissible.” Barnhart v.
*
21
Walton, 122 S. Ct. 1265, 1271 (2002). The judgment of the
court of appeals therefore must be reversed.
A. The Commissioner's Construction Of The Act Is
Entitled To Great Deference
Where an Act of Congress speaks clearly “to the precise
question at issue,” courts “must give effect to the unambigu-
ously expressed intent of Congress.” Chevron U.S.A. Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 843
(1984). If “the statute is silent or ambiguous with respect to
the specific issue,” however, courts must sustain an agency’s
interpretation if it is “based on a permissible construction of
the statute.” Id. at 843. Hence, this Court must decide
“(1) whether the statute unambiguously forbids the
Agency’s interpretation, and, if not, (2) whether the inter-
pretation for other reasons, exceeds the bounds of the
permissible.” Walton, 122 S. Ct. at 1269.
Deference is particularly appropriate where, as here,
Congress has granted the Commissioner power to issue
legislative rules, see 42 U.S.C. 405(a) (rulemaking authority);
42 U.S.C. 1383(d)(1) (incorporating Section 405(a) into Title
XVI); Sullivan v. Zebley, 493 U.S. 521, 528 (1990); Bowen v.
Yuckert, 482 U.S. 137, 145 (1987); Heckler v. Campbell, 461
U.S. 458, 466 (1983). In such circumstances, the Commis-
sioner’s construction must control unless it is “arbitrary,
capricious, or manifestly contrary to the statute.” Zebley,
493 U.S. at 528 (quoting Chevron, 467 U.S. at 843-844).
Indeed, as this Court has recognized, the “Social Security
Act is among the most intricate ever drafted by Congress.
Perhaps appreciating the complexity of what it had
wrought, Congress conferred on the [Commissioner]
exceptionally broad authority to prescribe standards for
applying certain sections of the Act.” Schweiker v. Gray
Panthers, 453 U.S. 34, 43 (1981).
In addition, considerable weight is due “a contem-
poraneous construction of a statute by [those] charged with
22
the responsibility of setting its machinery in motion, of
making the parts work efficiently and smoothly while they
are yet untried and new.” Norwegian Nitrogen Prods. Co. v.
United States, 288 U.S. 294, 315 (1933); see, eg., Good
Samaritan Hosp. v. Shalala, 508 U.S. 402, 414 (1993); Davis
v. United States, 495 U.S. 472, 484 (1990); Edwards’ Lessee v.
Darby, 25 U.S. (12 Wheat.) 206, 210 (1827). Here, the
Commissioner’s construction dates from the disability
program's earliest days. Such a “contemporaneous con-
struction deserves special deference when it has remained
consistent over a long period of time.” EEOC v. Associated
Dry Goods Corp., 449 U.S. 590, 600 n.17 (1981); see Davis,
495 U.S. at 484. Under these principles, the Commissioner's
interpretation of the Act must be sustained.
B. The Commissioner’s Construction Is Supported By The
Text Of 42 U.S.C. 423(d)
Section 423(d)(1)(A) defines “disability” as the “inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. 423(d)(1)(A). Because the phrase “by
reason of” imposes a causation requirement, the Commis-
sioner’s regulations implementing Section 423(d)(1)(A) have
always required that it be the impairment—rather than
changes in marketplace, economic, or technological con-
ditions—that precludes the claimant from performing her
former or customary work as well as any other type of work.
See pp. 4-7, 18-19, supra, and 34-37, infra. And, consistent
with that principle, those regulations have never required a
determination whether the claimant’s past work exists in
significant numbers in the national economy. See pp. 4-7,
supra.
In this case, the court of appeals did not question—
indeed, it did not mention—the Commissioner's longstanding
— — — —
23
construction of the “by reason of” requirement in Section
423(d)(1)(A). Instead, the court of appeals relied almost
exclusively on Section 423(d)(2)(A). See Pet. App. 7a-9a
Section 423(d)(2)(A) was enacted in 1967 in response to
judicial decisions that had expanded the disability program
by placing inappropriate weight on the applicant’s ability to
obtain employment rather than her capacity to work. See S
Rep. No. 744, 90th Cong., Ist Sess. 48 (1967); H.R. Rep. No.
544, 90th Cong., Ist Sess. 30 (1967). Section 423(d)(2)(A)
accordingly limits the extent to which benefits can be
granted under Section 423(d)(1)(A). It states:
For purposes of paragraph [d)(1)(A)—* * *
dividual shall be determined to be under a n ents
if his physical or mental impairment or impairments are
of such severity that he is not only unable to do his pre-
vious work but cannot, considering his age, education
and work experience, engage in any other kind of sub-
stantial gainful work which exists j
— exists in the national
42 U.S.C. 423(d)(2)(A) (emphases added). By enactin
Section 423(d)(2)(A), Congress sought to “reemphasize the
— t importance of medical factors” rather than job-
— — — Be _ disability determination.” H.R. Rep.
Believing Section 423(d)(2)(A) to be “unambiguous,” the
— of appeals concluded that Section 423(d)(2)(A) bars the
matesioner from denying a disability claim based on the
claimant's capacity to do former work unless that work
Adee in the national economy,“ i. e., unless that work
exists in significant numbers either in the region where
— individual lives or in several regions of the country.”
— App. 8a (quoting 42 U.S.C. 423(d)(2)(A)). Accordingly,
court held that the Commissioner may not deny re-
— benefits based on her capacity to do her former job
vator operator) if, because of technological changes, the
24
job no longer exists in significant numbers. That holding is
inconsistent with the text and structure of Section
423(d)(2)(A), and with the Commissioner's longstanding
construction of both that provision and the basic definition of
disability in Section 423(d)(1)(A).
1. The Text and Structure Of Section 423(d)(2)(A)
Support The Commissioner's Distinct Treatment
Of “Previous” Work And “Other” Work
a. As an initial matter, the court of appeals misunder-
stood the operative effect of Section 423(d)(2)(A) and its role
in the statutory scheme. By its terms, Section 423(d)(2)(A)
provides that a claimant shall be found disabled “only if”
specified conditions are met. Because it uses the phrase
“only if,” Section 423(d)(2)(A) “states a necessary, but not a
sufficient, condition” for disability. See California v. Hodari
D., 499 U.S. 621, 628 (1991) (so construing the phrase “only
if”). The court of appeals, by contrast, erroneously treated
Section 423(d)(2)(A) as requiring the Commissioner to grant
benefits whenever its specified conditions are met. See Pet.
App. 7a (stating that the Social Security Act “defines dis-
ability as follows,” and then quoting Section 423(d)(2)(A)).
The court of appeals’ view of Section 423(d)(2)(A) is fore-
closed by this Court’s decision in Yuckert. In that case, the
Court specifically rejected the contention that Section
423(d)(2)(A) restricts the Commissioner’s authority to deny
benefits. “The words of this provision,” the Court stated,
“limit the [Commissioner's] authority to grant disability
benefits, not to deny them.” Yuckert, 482 U.S. at 148 (em-
phasis added). Section 423(d)(2)(A) thus “restricts eligibility
for disability 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.” bid. (initial
emphasis added). That interpretation of Section 423(d)(2)(A)
reflects its underlying purpose: to return the focus of the
disability program to the claimant’s functional capacity to
perform work, as the Commissioner’s regulations imple-
menting Section 423(d)(1)(A) had long required, rather than
job-market considerations. The court of appeals at no
point attempted to reconcile its construction of Section
423(d)(2)A) with that purpose or with Yuckert.
b. The court of appeals, moreover, misinterpreted
Section 423(d)(2)(A) on its own terms. Far from under-
mining the Commissioner’s regulations, Section 423(d)(2)(A)
supports them. Indeed, under the Commissioner’s long-
standing construction of Section 423(d)(2)(A), that provision
itself precludes benefits awards where the claimant is
physically and mentally capable of doing her former work,
without inquiry into whether that work exists in significant
numbers in the national economy.
By its terms, Section 423(d)(2)(A) requires that the
claimant’s impairment be “of such severity that he is * * *
unable to do his previous work.“ 42 U.S.C. 423(d)(2)(A)
(emphasis added). Section 423(d)(2)(A) thus imposes a
causation requirement of its own, mandating that the
severity of the impairment be the cause of the claimant’s
inability to do her previous work. In that respect, it rein-
forces the Commissioner’s longstanding construction of the
“by reason of” requirement in Section 423(d)(1)(A). See
pp. 17-21, supra. Indeed, as explained below, Section
423(d)(2)(A) was designed to codify the Commissioner's pre-
existing policies and rules implementing Section
423(d)(1)(A). See pp. 37-39, infra.
The structure of Section 423(d)(2)(A), moreover, belies the
suggestion that a claimant’s “previous” work (like “any other
* * * work”) must exist in the national economy in signifi-
cant numbers. Section 423(d)(2)(A) separates “previous
work” from “any other kind of substantial gainful work,” and
attaches two limiting conditions to the latter that it does not
attach to the former. First, while inability to engage in “any
other kind of substantial gainful work” is determined “con-
sidering (the elaimant's] age, education, and work experi-
ence,” ability to do “previous work” is not. Second, while
Section 423(d)(2)(A) modifies the phrase “any other kind of
substantial gainful work” by adding the dependent clause
“which exists in the national economy” in “significant num-
bers,” it does not attach that limitation to the phrase “pre-
vious work.”
As one 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 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 renders a claimant ineligible for
benefits whether or not that work exists in the United
States.
Quang Van Han, 882 F.2d at 1457; see ibid. (“[T}he limita-
tions governing other work do not modify previous work;
indeed, * * * their absence gives rise to the inference that
previous work is not subject to the same restrictions.”).
That interpretation conforms to the “rule of the last
antecedent,” under which the limiting clause “which exists in
the national economy” should be read as modifying only the
phrase it immediately follows, i.e., “any other kind of
substantial gainful work.” See, e.g., FTC v. Mandel Bros.,
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); see also Nobelman
v. American Sav. Bank, 508 U.S. 324, 330 (1993) (application
of the “rule of the last antecedent” is “quite sensible as a
matter of grammar”).
27
e. The Commissioner has always construed Section
423(d)(2)(A) in that manner. After Section 423(d)(2)(A) was
enacted in 1967, the Commissioner’s revised regulations
carried forward the rules that “the physical or mental
impairment must be the primary reason for the inability to
engage in any substantial gainful activity”; and 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. 11,749, 11,751 (1968) (codified as 20
C.F.R. 404.1502(b) (1969)). As before, the regulations im-
posed no requirement that a claimant’s past work be found
to exist in significant numbers in the national economy.
The same is true of step four of the current sequential
evaluation process, which now governs the previous work
inquiry. At step four, if the claimant is found to retain the
“residual functional capacity” to meet the “physical and
mental demands of the work [she] hals] done in the past,”
she will be found “not disabled.” 20 C. F. R. 404.1520(e),
416.920(e); see 20 C.F.R. 404.1560(b), 416.960(b); pp. 7-8,
supra. The Commissioner will not proceed to the final (fifth)
step—and examine the availability of work in the national
economy—unless the claimant “cannot do any work [she]
hals] done in the past because [she] hals] a severe impair-
ment{).” 20 C. F. R. 404.1520(f), 416.920(f) (emphasis added).
See also SSA Program Operations Manual System (POMS)
DI 25005.001 (1996) (“Whether the [past relevant work] still
exists in the national economy is also immaterial.”).
The Commissioner’s construction is also embodied in a
formal Social Security Ruling. Interpreting her regulations
in the context of a claimant’s past work in a foreign country,
the Commissioner explained that it does not matter whether
such “previous work” exists in the United States economy.
Instead, at step four of the sequential process, the central
issue is the claimant’s physical and mental capacity to do her
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 performing that job re-
gardless of the fact that the individual no longer resides
in the country where the past work was performed.
SSR 82-40 (available in 1982 WL 31388, at *2). Relying on
the text and legislative history of Section 423(d)(2)(A), the
Commissioner explained:
[Section 423(d)(2)(A)] does not qualify “previous work”
but does specify that “other . . . work” must exist in
significant numbers in the national economy. The legis-
lative history of the statutory provisions also does not
qualify “previous work,” but clearly indicates that the
provisions were enacted to provide guidelines “to re-
emphasize the predominant importance of medical
factors in the disability determination.”
Ibid. The Commissioner therefore concluded that, for both
“past work in a foreign economy” and “past work in the U.S.
economy,” the only question is the claimant’s ability to meet
“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 previous work that the burden shifts to
the” Commissioner “to show that there is [other] work
available in the U.S. national economy which the claimant
can do (the fifth and last step of the sequential evaluation
process).” Ibid."
7 The Ruling thus states 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 dess with the
claimant’s ability to do his or her past work.” SSR 82-40 (1982 WL 31388,
at *2).
— — — ——
2. This Court 's Decisions And Common Usage Con-
tradict The Court af Appeals’ Conclusion That
The Words “Any Other” In Section $23(d)(2)(A)
Foreclose the Commissioner’s Construction
Disagreeing with the Commissioner’s longstanding con-
struction (and the decisions of all the other courts of
appeals), the court of appeals in this case placed dispositive
weight on 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.” Pet. App. 8a (emphasis added). The
court did not deny that, because the dependent clause
“which exists in the national economy” immediately follows
the phrase “any other kind of substantial gainful work,” it
modifies that phrase. But it concluded that, by virtue of the
words “any other,” the clause must also modify the phrase
“previous work.” The court reasoned that the “phrase ‘any
other’ in this provision * * * makes clear that an in-
dividual’s ‘previous work’ was regarded as a type of ‘sub-
stantial gainful work which exists in the national economy.’”
Ibid. According to the court of appeals, “[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.” Jbid. (emphasis added). That novel and in-
flexible rule of statutory construction cannot be squared
with this Court’s decision in Mandel Brothers or with
ordinary usage.
a. In Mandel Brothers, this Court addressed the effect of
the words “any other” in the Fur Products Trading Act,
which defined “invoice” as “a written account, memorandum,
list, or catalog” issued in connection with a commercial
transaction in which fur products are “transported or
delivered to a purchaser, consignee, factor, bailee, correspon-
dent, or agent, or any other person who is engaged in
dealing commercially in fur products or furs.” 359 U.S. at
30
386 (emphasis added). Like the court of appeals here, the
court of appeals in that case relied on the phrase “any other”
to dispense with the rule of the last antecedent and to hold
that the limiting clause at the end of the sentence (“who is
engaged in dealing commercially”) must apply to all cate-
gories listed before the phrase “or any other” (“purchaser,
consignee,” etc.). That court stated:
If the last antecedent were “any person” instead of “any
other person,” the word “purchaser” might not be limited
to one engaged in dealing commercially in fur products or
furs. However, when the statute says purchaser or any
other person who is so engaged the limitation clearly
applies to purchaser. No other meaning is possible.
254 F.2d 18, 22 (th Cir. 1958) (initial emphasis added).
This Court unanimously reversed. The court of appeals,
the Court explained, had relied on “the last phrase
—‘or any other person who is engaged in dealing
commercially in fur products or furs.’ [The court of appeals]
held that ‘engaged in dealing commercially’ modifies not only
‘any other person’ but also all the other preceding terms in
the subsection including ‘purchaser.’” 359 U.S. at 389.
While that was “a possible construction,” the Court ex-
plained, it was not the only possible construction. Ibid. And
the Court ultimately rejected the court of appeals’ con-
struction, concluding that the “limiting clause is to be applied
only to the last antecedent.” Ibid.
The same conclusion follows here. Far from eliminating
an ambiguity, the words “any other” in Section 423(d)(2)(A)
at best create one. Cf. Nobelman, 508 U.S. at 331-332.
Given the general rule that “qualifying words, phrases, and
clauses are to be applied to the words or phrase immediately
preceding” and not to “others more remote,” Resolution
Trust Corp. v. Nernberg, 3 F.3d 62, 65 (3d Cir. 1993), it is
neither necessary nor natural to infer from the words “any
other” that “previous” work, like “any other kind of
31
substantial gainful work,” must “exist[] in the national
economy” in “significant numbers.” See 2A N. Singer,
Sutherland on Statutory Construction § 47.33, at 369 (6th
ed. 2000) (“qualifying words and phrases * * * refer solely
to the last antecedent” unless the “contrary intention
appears”). In Mandel Brothers, the words “any other” did
not indicate that the specific categories (“purchasers,
consignees,” etc.) preceding the clause “or any other person
who is engaged in dealing commercially” must be “persons
engaged in dealing commercially”, it merely signaled
that those specific categories were “persons.” Likewise, in
Section 423(d)(2)(A), the words “any other” in the clause
“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” do not mean that a claimant’s
prior job can be “previous work” only if it is a “kind of
substantial gainful work which exists in the national
economy.” Instead, they merely indicate that a claimant’s
“previous work” is a “kind of substantial gainful work.”
. Indeed, although more than three decades have passed
since Section 423(d)(2)(A) was enacted, no other court of
appeals decision had ever adopted the grammatical con-
struction that the Third Circuit believed was unambiguously
required. To the contrary, relying on the rule of the last
antecedent, the courts of appeals had unanimously rejected
it. See Quang Van Han, 882 F.2d at 1457 (rejeeting the
claim that “the word ‘other’ * * * indicates that previous
work’ is a subset of ‘substantial gainful work which exists in
the national economy’”); Garcia, 46 F.3d at 558 (similar);
Rater, 73 F.3d at 798 (rejecting claim that, under Section
423(d)(2)(A), “the term ‘previous work’ is modified by the
qualifying phrase ‘which exists in the national economy’ ”);
Pass, 65 F.3d at 1203 (similar). See also Yuckert, 482 U.S.
* The court of appeals in this case relied on dictum in Kolman v.
Sullivan, 925 F.2d 212 (7th Cir. 1991), to support its contrary view. See
32
at 148 (describing Section 423(d)(2)(A) as “restrict(ing]
eligibility for disability benefits to claimants whose medically
severe impairments prevent them from doing their previous
work and also prevent them from doing any other sub-
stantial gainful work in the national economy.”).
b. The court of appeals attempted to support its novel
rule of statutory construction using several grammatical
analogies (Pet. App. 8a), but those analogies are inapt.
According to the court of appeals, the clause “which exists in
the national economy” must apply to “previous work” be-
cause:
[I]t 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 which 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. Those examples, however, do not parallel the gram-
matical structure of Section 423(d)(2)(A), and they do not
justify a departure from Mandel Brothers and the rule of the
last antecedent.
It makes perfect grammatical sense—and more closely
parallels the structure of Section 423(d)(2)(A)—to say “not
Pet. App. 14a. 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. 925 F.2d at 213-214. The court commented that if the
temporary training job had been a permanent position that had dis-
appeared, “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. That dictum was not a
construction of Section 423(d)(2)(A)’s text, but rather a misinterpretation
of what the Commissioner “intended by [her] regulations.“ The Seventh
Circuit, moreover, has declined to expand that dictum. See Knight v.
Chater, 55 F.3d 309, 315-316 (1995).
~ ——— — —ͤ— 9
33
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 ob-
viously 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.”
More to the point, and to use an example that even more
closely parallels Section 423(d)(2)(A)’s structure, a dis-
appointed 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 imply that the officially recom-
mended sites were ones the children wanted to see; it implies
only that the officially recommended sites were “tourist
attractions.”
The same grammatical analysis applies here. The words
“any other” in Section 423(d)(2)(A) are best understood as
indicating that “previous work” is merely a “kind of
substantial gainful work,” not that a claimant’s previous
work must “exist in the national economy” in “significant
numbers.” As explained below, that construction, and only
that construction, is consistent with the legislative history
and evolution of the Act, and with the Commissioner’s
construction at the time Section 423(d)(2)(A) was enacted.
To the extent there is ambiguity, the Commissioner’s
reasonable construction must control.
34
C. The Commissioner’s Construction Is Compelled By The
Act’s Evolution And History
In the more than four decades during which Social
Security disability programs have existed, Congress has re-
peatedly revisited and revised those programs with full
awareness of the Commissioner’s interpretation. Congress
has not overturned the Commissioner’s construction, but ra-
ther has endorsed it. Those “circumstances provide further
evidence—if more is needed—that Congress intended the
Agency’s interpretation, or at least understood the inter-
pretation as statutorily permissible.” Walton, 122 S. Ct. at
1271.
1. Congress Adopted The Definition Of Disability In
Section 423(d)(1)(A) Against The Backdrop Of
The Commissioner’s Construction And Repeatedly
Endorsed It Thereafter
The definition of “disability” enacted in 1956, now found in
Section 423(d)(1)(A), was copied from an earlier but other-
wise identical definition used in the 1954 disability freeze
program. See pp. 3-4, supra. In enacting that earlier pro-
gram, Congress expressed its expectation that the Commis-
sioner would promulgate standards that “will reflect the
requirement that the individual be disabled not only for his
usual work but also for any type of substantial gainful
activity.” S. Rep. No. 1987, 83d Cong., 2d Sess. 21 (1954)
(emphasis added); H.R. Rep. No. 1698, 83d Cong., 2d Sess. 23
(1954) (same). When implementing that program through the
Disability Freeze State Manual in 1955, the Commissioner
explained that a claimant is disabled only if the impairment
is “the cause of inability to work”; that the inability to work
“must result from the impairment and its effect on the
applicant’s employability” rather than “other causes”; and
that benefits would not be awarded to an “individual who is
unemployed by reason of economic conditions” or “unavail-
ability of jobs.” Disability Freeze State Manual §§ 314.A,
——
— —
35
314.B (May 16, 1955). That earlier construction of the same
definition of “disability” bears strongly on the proper
construction here. Where “Congress adopts a new law
incorporating sections of a prior law, Congress normally can
be presumed to have had knowledge of the interpretation
given to the incorporated law, at least insofar as it affects
the new statute.” Lorillard v. Pons, 434 U.S. 575, 581 (1978).
Congress, moreover, has been fully aware of the Com-
missioner’s construction since 1956 and has repeatedly
endorsed it in the years that followed. For example, four
years after Congress enacted the disability insurance
program, the Subcommittee on the Administration of the
Social Security Laws of the House Committee on Ways and
Means conducted a comprehensive examination of the
program. The resulting report acknowledged that, under
the Commissioner’s construction (which was embodied in
manuals and other written guidance), an individual is not
entitled to benefits if the person has “become unemployed or
remain[s] unemployed for a reason or reasons other
than disability,” such as “technological changes in the
industry in which the applicant has been employed
The disability provisions are intended to benefit only those
persons who are not working because of incapacity, and not
those unemployed because of these other factors.” Staff of
the Subcomm. on the Administration of the Social Security
Laws of the House Comm. on Ways and Means, 86th Cong.,
2d Sess., Preliminary Report on Administration of Social
Security Disability Insurance Program 19 (Comm. Print
1960) (1960 Comm. Report) (emphases added). Although
“(t]he subcommittee recognize[d] that this distinction is
difficult for the public to understand,” ibid., it nonetheless
reaffirmed Congress’s desire to make “a clear distinction be-
tween this program and one concerned with unemployment,”
id. at 20.
36
Just five years later, in 1965, Congress amended the
original definition of “disability” in Section 423(d)(1)(A) to
change the required duration from “long-continued and
indefinite” to “a continuous period of not less than 12
months.” See Social Security Amendments of 1965, Pub. L.
No. 89-97, § 303(a)(1), 79 Stat. 366. By then, the Commis-
sioner had published regulations construing the term
“disability.” Those regulations required the claimant to be
physically or mentally “incapable of performing his prior,
usual or regular work”; mandated that the physical or men-
tal impairment “be the primary reason for the individual’s
inability” to work; and precluded a finding of disability if the
claimant became or remained “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.” 25 Fed. Reg. 8100 (1960) (codified at 20 C.F.R.
404.1502(b) (1961)); see 20 C.F.R. 404.1502(b) (1965). Even
as Congress changed the duration requirement in Section
423(d)(1)(A), it did nothing to alter the Commissioner’s con-
struction of the substantive definition of “disability” in that
provision.
“It is well established that when Congress revisits a
statute giving rise to a longstanding administrative inter-
pretation without pertinent change, the ‘congressional fail-
ure to revise or repeal the agency’s interpretation is per-
suasive evidence that the interpretation is the one intended
by Congress. Commodity Futures Trading Comm'n v.
Schor, 478 U.S. 833, 846 (1986); NLRB v. Bell Aerospace Co.,
416 U.S. 267, 274-275 (1974). That conclusion is especially
warranted here, because the House Report on the 1965
amendments acknowledged and endorsed the Commis-
sioner’s rules, including the requirement that the impair-
ment (rather than some other cause) prevent the individual
from performing her prior work. The House Report ex-
plained:
37
[T]o 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 jousl
did, but that he is also unable, oes into — 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, Soth Cong., Ist Sess. 88 (1965) (emphasis
added). The court of appeals’ conclusion that an individual
may be disabled even where the alleged inability “to perform
the type of work [she] previously did” is not “by reason of a
physical or mental impairment”—but is instead based on
technological changes so that the previous work no longer
exists in significant numbers—is contrary to Congress’s
evident understanding of the manner in which Section
423(d)(1)(A) had been interpreted and implemented.
2. The Court Of Appeals’ Construction Of Section
423(d)(2)(A) Ie Inconsistent With Congress’s
Intent In Enacting That Provision
The court of appeals’ decision is even more difficult to
reconcile with the origins of Section 423(d)(2)(A). When
Congress enacted that provision in 1967, it was once again
acting against the background of the Commissioner’s well-
settled construction of the definition of “disability” in Section
423(d)(1)(A)—a construction that by then had been upheld
by several courts of appeals. See pp. 18-19 & note 6, supra.
Congress was fully aware of the Commissioner’s distinct
treatment of previous work and other work. The House and
Senate Reports, for example, explained that the Commis-
sioner has the burden of showing “other” work that a
claimant can do, but observed that such a duty arises only
“once the claimant has shown inability to perform his usual
vocation.” See S. Rep. No. 744, 90th Cong., Ist Sess. 47
(1967). And far from rejecting that construction, Congress
38
codified it in Section 423(d)(2)(A). As one Member of Con-
gress explained, Section 423(d)(2)(A) was added to “reflect[]
the regulations and policies now followed in the administra-
tion of the disability provisions of the law.” 113 Cong. Rec.
23,065 (1967) (statement of Rep. King). “(WJhat we are
attempting to do to the present definition of disability * * °
is really no basic change at all—it clarifies, amplifies, and
makes more explicit in the statute the policy guidelines and
the requirements that must be met to establish the existence
of disability.” Ibid.
The court of appeals’ suggestion that the clause “which
exists in the national economy” modifies “previous work” in
Section 423(d)(2)(A) is also contradicted by the House and
Senate Reports’ descriptions of that provision. Those Re-
ports both treat the clause “which exists in the national
economy” as applicable to “other work,” but not “former
work”:
The language added by the bill would provide
that if, despite his impairment or impairments, an
individual still can do his previous work, he is not under
a disability; and that if, considering the severity of his
impairment together with 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 th[{Jough 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.
H.R. Rep. No. 544, supra, at 30 (emphasis added); S. Rep.
No. 744, supra, at 48-49 (similar).
The court of appeals’ view that Section 423(d)(2)(A)
imposes a requirement that “previous work” exist in signifi-
cant numbers in the national economy is also difficult to
square with that provision’s purpose. Section 423(d)(2)(A)
was added in part to respond to a series of judicial decisions
that, by focusing on the job market rather than the
functional effect of the claimant’s medical impairment, had
expanded the scope of the disability program. See S. Rep.
No. 744, supra, at 48; H.R. Rep. No. 544, supra, at 30. “Asa
remedy for the situation,” Section 423(d)(2)(A) was designed
to “provide guidelines to reemphasize the predominant
importance of medical factors,” as opposed to labor-market
considerations, “in the disability determination.” Ibid. It is
exceedingly unlikely that Congress meant to contradict that
goal—and expand both the benefits program and the
consideration of market factors within the program—by
overruling the Commissioner’s longstanding rule that a
claimant is not disabled if, despite her impairment, she re-
tains the physical and mental capacity to perform her pre-
vious work.
3. Three Additional Decades Of Experience In The
Disability Programs Confirm The Commissioner’s
Construction
. Following the 1967 amendments, the Commissioner re-
vised the agency's regulations to account for the addition of
Section 423(d)(2)(A). Consistent with that provision's text
and history, the Commissioner carried forward the require-
ment that It he physical or mental impairment must be the
primary reason for the individual’s inability to engage in any
substantial gainful activity,” as well as the rule 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. 11,749, 11,751 (1968) (emphasis
added) (codified at 20 C. F. R. 404.1502(b) (1969)).
When the Commissioner comprehensively revised those
regulations to formalize a five-step sequential evaluation
process in 1978—issuing new regulations “reflective of
40
longstanding policies,” 43 Fed. Reg. at 55,355—the Commis-
sioner retained that requirement as step four.” The Commis-
sioner also retained that construction when rewriting the
regulations in “simpler, briefer language” pursuant to
executive order in 1980. 45 Fed. Reg. 55,566 (1980) (codified
at 20 C. F. R. 404.1520(e) and (f)(1) (1981). And the Commis-
sioner reiterated that construction again in a formal Social
Security Ruling in 1982. See pp. 27-28, supra (SSR 82-40).
Following the issuance of those regulations and SSR 82-
40, Congress conducted a comprehensive review of the five-
step sequential evaluation process in 1984. 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 sequen-
tial evaluation process in certain other respects (see Social
Security Disability Benefits Reform Act of 1984, Pub. L. No.
98-460, 98 Stat. 1794), at no point did Congress suggest an
intent to alter the Commissioner’s settled construction of
“disability” in Section 423(d)(1)(A) and the “previous work”
limitation in Section 423(d)(2)(A). To the contrary, the
House Report emphasized that the legislation was not
intendled] to alter the current definition” of disability. H.R.
Rep. No. 618, supra, at 6. It explained that “the purpose of
the disability insurance program is to provide benefits only
for those who are unable to work.” Id. at 7. And it stated
that “benefits should be granted to those who are unable to
work because of a medically determinable impairment.” Id.
The 1978 regulations provided that “disability shall be found not to
exist” at step four if “the impairment(s) does not prevent the individual
from meeting the physical and mental demands of past relevant work.” 20
C. F. R. 404.1503(e) (1979) (emphasis added). Only if the claimant “cannot
perform any past relevant work because of a severe impairment(s)” would
the Commissioner ask if the claimant’s “remaining physical and mental
capacities are consistent with his or her meeting the physical and mental
demands of a significant number of jobs * * * in the national economy” in
light of “vocational capabilities (considering age, education, and
experience).” 20 C. F. R. 404.1503(f) (emphasis added).
— — ee
41
at 8 (emphasis added). Moreover, the Conference Report
expressly stated that Congress did “not intend to eliminate
or impair the use of [the sequential evaluation] process.”
Ibid. (quoted in Yuckert, 482 U.S. at 152). Here, as in
Walton, 122 S. Ct. at 1270-1271, Congress’s repeated review
and revision of the statute without “revis{ing] or repeal{ing]
the agency’s interpretation is persuasive evidence that the
interpretation is the one intended by Congress.” See also
Schor, 478 U.S. at 846; Bell Aerospace Co., 416 U.S. at 274-
275.
D. The Commissioner's Longstanding Construction
Serves Sound Purposes In The Administration Of
The Disability Programs
1. Just as the Commissioner has long construed the
definition of disability to require that a physical or mental
impairment rather than some other factor (such as techno-
logical change) render the claimant incapable of performing
her prior work, the courts of appeals have long upheld that
construction. Section 423(d)(2)(A)’s requirement that work
exist “in the national economy” in “significant numbers,”
those courts have held, applies to “other” work but not “pre-
vious” work the claimant has done. As one court of appeals
concluded, the text “easily bears” the Commissioner’s inter-
pretation, which is supported by Congress’s “inten[t] to
distinguish sharply between unemployment compensation
and the disability benefits provided by the Act,” and by
Congress’s desire to make disability “a predominantly medi-
cal determination, as opposed to a vocational one.” Garcia,
46 F.3d at 558-559; see Pass, 65 F.3d at 1203-1204, 1207
(similar); Rater, 73 F.3d at 799 (similar); Quang Van Han,
882 F.2d at 1457 (similar); see also May, 362 F.2d at 618;
Reyes Robles, 409 F. 2d at 86 & n. I: p. 19 & note 6, supra.
Those courts have recognized that an inability to engage
in substantial gainful activity is not “by reason of” the
impairment if the claimant retains the physical and mental
42
capacity to perform her former job. They also have recog-
nized that the ability to perform a former job is a reliable
and administrable measure of the capacity to work, whether
or not that particular job exists in significant numbers in the
national economy. Indeed, ability to perform a prior job is
the most concrete and individualized measure of the
individual’s capabilities. Consequently, Hilf the claimant is
in sufficient physical and mental condition to perform his
previous work, his impairment is clearly not so severe as to
preclude employment.” Quang Van Han, 882 F.3d at 1457.
As the Fourth Circuit explained, Iplast relevant 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 .v assure that the claimant can actually find
employment.” Pass, 65 F.3d at 1204. [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 (Rendell, J., dissenting).
The distinction between previous work and “any other
kind” of work the claimant might do makes particular sense
given the very different natures of the “previous” work and
“other” work inquiries. A claimant’s previous job is specific,
concrete, and identifiable, and the ability to perform its
demands is therefore a direct and individualized measure of
actual capacity. The previous work inquiry is, moreover,
bounded by the historical fact of what the claimant has done
in the past. “Other” work, in contrast, is by definition work
the claimant has not done, and analysis of that issue is more
removed from concrete empirical proof.“ As a result, it
10 Indeed, for that reason, the “other” work inquiry must rely on
generalizations (including the “grid” or “matrix” regulations described in
Heckler v. Campbell, 461 U.S. at 461-462, 467-468, as well as presumptions
based on age, etc., 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(d)) that
render it a less individualized measure than prior work.
43
makes sense to focus the broad-ranging inquiry about
“other” jobs on those jobs that exist in significant numbers
in the national economy.
2. In reaching the contrary result, the court of appeals
suggested that its construction is necessary to avoid absurd
results. According to the court of appeals, “there is no
plausible reason why Congress might have wanted to deny
benefits” to a claimant who, “although unable to perform any
job that actually exists in the national economy, could
perform a previous job” that “no longer exists.” Pet. App.
9a. It is highly questionable whether a perceived need to
avoid an absurd result in a hypothetical example under a
massive benefits program could justify overturning a
longstanding administrative construction that Congress has
repeatedly acknowledged, endorsed, and ratified. Cf.
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 459 (2002)
(Court “rarely invokes” absurdity notion “to override
unambiguous legislation”). But even if that rarely used tool
of statutory construction is not altogether foreclosed here,
the Commissioner’s construction is hardly absurd, and the
Commissioner’s rule is in any event necessary to avoid the
absurd consequences that the court of appeals’ contrary
construction would engender.
The court of appeals’ absurdity argument fails in the first
instance because it is inconsistent with the function of the
previous-work inquiry. The ability to do former work is the
most concrete and thus accurate measure of the claimant’s
physical and mental capacity for work. It therefore serves
as a sound gauge of “the ability to perform work, not as proof
that the claimant can be employed in that particular job.”
Pet. App. 19a (Rendell, J., dissenting). Accord Quang Van
Han, 882 F.3d at 1457; Pass, 65 F.3d at 1204; p. 42, supra.
Thus, contrary to the court of appeals’ and respondent’s
supposition, the Commissioner’s regulations are not
premised on the prospect of “sending an applicant back in
44
time to resume a job no longer available in the economy.”
Br. in Opp. 11. Rather, the ability to do that job serves as an
appropriate measure of the claimant’s actual capacity for
substantial gainful activity.
That purpose of the previous work inquiry parallels the
purpose of the “other” work inquiry at the next step of the
process. Even where “other” work is at issue, the Act
declares that it makes no difference “whether such work
exists in the immediate area in which [the claimant] lives, or
whether a specific vacancy exists for him, or whether he
would be hired.” 42 U.S.C. 423(d)(2)(A), 1882¢e(a)(3)(B); see
H.R. Rep. No. 544, supra, at 30 (“[SJuch factors as whether
the work he could do exists in his local area, or whether
there are job openings, or whether he would or would not
actually be hired may be pertinent in relation to other forms
of protection,” but “may not be used as a basis for finding an
individual to be disabled.”). Even at that step, the question
is the claimant’s capacity, not ready access to jobs in the
market.
It is also speculative to hypothesize about claimants who
can do only one form of work (a particular past job) and no
other, only to see that one form of work cease to exist in
significant numbers in the national economy.“ No principle
of statutory construction requires Congress to anticipate—
or imposes a presumption that Congress is deemed to
anticipate—such a remote hypothetical case and to fashion
the definitions of disability, governing millions of claims each
year, to accommodate it. Congress simply did not accept the
Third Circuit’s assumption that a significant number of
11 The Commissioner’s rules, which restrict how far back the Com-
missioner will look in identifying previous work, render such speculation
especially unwarranted. See SSR 82-62 (1982). The SSA generally uses a
15-year rule. The resulting presumption makes claims resolution easier by
eliminating the need to examine every job the claimant has held during
her potentially long work history.
——
45
individuals are capable of performing one and only one
narrow type of work.”
Instead, in prescribing the principles on which the disa-
bility program would operate, Congress provided admin-
istrable standards that emphasize “the predominant impor-
tance of medical factors” over economic considerations. S.
Rep. No. 744, supra, at 48. Reintroducing job-market con-
siderations into the otherwise clear fourth step of the
sequential evaluation process would interfere with that goal.
As the dissenting opinion below explained: “If Congress and
the regulatory body charged with implementing the
statutory scheme have determined that [a claimant] should
not be considered ‘disabled’ if she still has the ability,
physically and mentally, to do what she had previously
done,” it is not for the courts to “graft additional require-
— on the statutory and regulatory scheme.“ Pet. App.
The court of appeals’ new rule would also introduce a
significant and unnecessary new burden into this massive
program. Because the Social Security Administration
“decides more than 2 million claims for disability benefits
each year,” the need for standards that “contribute to the
uniformity and efficiency of disability determinations * * *
is particularly acute.” Yuckert, 482 U.S. at 153. The court of
appeals’ decision, however, would introduce a broader
inquiry about current economic circumstances into the
fourth step of the sequential evaluation process, which other-
wise entails a straightforward inquiry that focuses narrowly
on the claimant’s condition and its relationship to work she
had previously done. Given the volume of claims the agency
must handle, that burden should not be underestimated. See
12 Even the decision below recognized (Pet. App. 16a) that, if a
claimant is able to perform her previous work, it is singularly unlikely that
the claimant will be unable to perform any other kind of work in the
national economy.
46
Pet. App. 18a (Rendell, J., dissenting) (decision below will
“wreak havoc with the evidentiary aspects of the
administrative process”).
The construction announced by the court of appeals,
moreover, would itself yield absurd results. The court of
appeals’ construction is not limited to situations in which a
claimant’s past job has become obsolete. To the contrary,
the court of appeals would preclude consideration of the
claimant’s ability to do her former work any time that job
does not exist in “significant numbers” in the national
economy, Pet. App. 8a, including cases in which the claim-
ant’s former position is available to her. Indeed, the court’s
holding would permit some individuals to quit their jobs and
collect disability benefits instead—even though their em-
ployers want them to return—if the jobs do not exist “in
significant numbers either in the region where such
individual[{s] live{] or in several regions of the country.”
Ibid. (quoting 42 U.S.C. 423(d)(2)(A)).
Finally, the court of appeals’ absurdity argument fails
because it overlooks the fact that the Commissioner's
construction, by imposing a strict causation requirement,
draws a sharp and necessary distinction between disability
programs and programs concerned with the consequences of
economic and technological change. As the Subcommittee on
the Administration of the Social Security Laws explained in
1960, the Commissioner’s rule precludes a claimant from
receiving benefits if she has “become unemployed or
remainls]! unemployed for * reasons other than
disability” such as “technological changes in the industry in
which the applicant has been employed.” The rule thus
reflects the fact that the “disability provisions are intended
to benefit only those persons who are not working because of
incapacity, and not those unemployed because of these other
factors.” 1960 Comm. Report at 19. Even if that distinction
may be “difficult for the public to understand,” ibid., Con-
— ee SE
pe...
—
47
gress has reaffirmed the necessity of making “a clear dis-
tinction between this program and one concerned with un-
employment,” id. at 20; 43 Fed. Reg. at 55,350. “Congress
intended to distinguish sharply between unemployment com-
pensation and the disability benefits provided by the Act.”
Garcia, 46 F.3d at 559. As the district court observed in this
case, Idlisability insurance provides for people who physi-
cally are incapable of performing the type of job they did in
the past[;] it does not provide for people who lost their job.”
Pet. App. 28a.
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.
THEODORE B. OLSON
Solicitor General
LI
SA DE — ROBERT D. MCCALLUM, JR.
General Counsel Assistant Attorney General
THOMAS W. CRAWLEY EDWIN S. KNEEDLER
Deputy General Counsel Deputy Solicitor General
ee J. — ll ; JEFFREY A. Lak EN
— of — Litigation Assistant to the Solicitor
JAMES H. GOLD WILLIAM KANTER
Atto ney WENDY M. KEATs
BARBARA L. SPIVAK Attorneys
Regional Chief Counsel,
Region I]
RICHARD A. HILL, JR.
Deputy Regional Chief
Counsel, Region I]
SUSAN REISS
Senior Attorney, Region II
Social Security Administration
MAY 2003
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.