Reply Brief — Barnhart v. Thomas

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AUG 28 203

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| OFFICE OF HHE CLERK |

No. 02-763

In the Supreme Court of the United States

JO ANNE B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY, PETITIONER

PAULINE THOMAS

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

REPLY BRIEF FOR THE PETITIONER

THEODORE B. OLSON

Solicitor General

Counsel oJ Record

Department of Justice

Washington, D.C. 20530-0001

(202) 514-221 7

TABLE OF AUTHORITIES

Cases: Page

Barnhart v. Walton, 535 U.S. 212 (2002) .............. 1, 13, 15, 20

Bowen v. City of New York, 476 U.S. 467 (1986) 4

Bowen v. Yuckert, 482 U.S. 137 (1987) ......csccseseveen 12, 18, 19

Chevron U.S.A. Inc. v. Natural Res. Def. Council,

mm ee 1

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

TEED crasessensenrenccneemesmamneseaninmenenemnee 15, 16

Commodity Futures Trading Comm'n v. Schor,

e ⁊ 13

FTC v. Mandel Bros., 359 U.S. 385 (1959) ... 2, 6, 7

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

BITE) ccevsssssesreeeseserssnscensenseseneceneneunequseveoussenneceosoesesveneececosvese 7, 11, 19

Heckler v. Campbell, 461 U.S. 458 (1983) . . 15

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

Massey v. Celebrezze, 345 F.2d 146 (6th Cir.

8... 11, 12

May v. Gardner, 362 F.2d 616 (6th Cir. 1966) 11

Norwegian Nitrogen Prods. Co. v. United States,

„ ä—ßfLͤKͤää 2 12

Pass v. Chater, 65 F.3d 1200 (4th Cir. 1995) . . .. 7,17

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

—.—————— 7,17

Rater v. Chater, 73 F.3d 796 (8th Cir. 1996) .. 7

- Reyes Robles v. Finch, 409 F.2d 84 (Ist Cir.

STEED ‘cevenseventestsremnennpenensnemamnsntneanesneeememianeens 12

Schweiker v. Gray Panthers, 453 U.S. 34 (1981) ............. 1

Sims v. Apfel, 530 U. S. 103 (2000) . . . 19

Statutes and regulations:

Social Security Act, 42 U.S.C. 301 et seg. se 1

. — ——„V 12

(I)

II

Statutes and regulations - Continued:

Re en

eee

80900

e

Pub. L. No. 104-121, Tit. I, § 105(a), 110 Stat. 852 (1996) ..

20 C. F. R.

Pt. 404, Subpt. P:

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ce GE ——T—TTT—TT—TTTTTTTc

Section 404.1520(@) (1981) . . .ws

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peters Ge K

a | ee

Table No. 2:

I

— T TT aD ear Done Te ee

Pt. 416, Subpt. I:

T7777 —— .

Gs —:

.

Beste 1———K, —

Miscellaneous:

Berkshire / Guardian Sample Disability Policy

<http://www.guardiandibrokerage.com/pdf/1100-

5

S. Crawford, Definition of Total Disability

<http://www.about disability-insurance.com/

— — ———

neee

67 Fed. Reg. 39,904 (2002) . . . . .. .. .. .. .. . .. . 6.

— — — ——

III

Miscellaneous Continued. Page

68 Fed. Reg. (2003):

SO 4

r ²Üĩ²¹‚ð᷑ʒÜʒ — — —'1é—— neneemeammrmrmnaranncemnemsens 4

* ÄÜi(Üöͤ 4

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Oe 4

H.R. Rep. No. 213, 89th Cong., Ist Sess. (1965) .................. 10, 20

H.R. Rep. No. 544, 90th Cong., Ist Sess. (1987) 5, 10, 11

S. Rep. No. 1987, 83rd Cong. 2d Sess. (1954) 9, 20

S. Rep. No. 744, 90th Cong., Ist Sess. (1987) 5, 10, 11, 19

SSA, Disability Freeze State Manual (19559) 11

SSA, OASI Disability Insurance Letter No. III-3

. 12, 13

SSA Program Operations Manual System 15

Social Security Ruling 82-40 (1982) (available

T 11, 13, 14

Social Security Ruling 82-61 (1982) (available

a 14

Social Security Ruling 82-62 (1982) (available

ee 14, 15

Staff of the Subcomm. on the Administration of

Social Security Laws of the House Comm.

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

Administration of Social Security Disability

Insurance Program (1960) 5

In the Supreme Court of the Anited 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 O APPEALS

FOR THE THIRD CIRCUIT

REPLY BRIEF FOR THE PETITIONER

Respondent does not dispute that, in light of the Social

Security Act’s “complexity, the vast number of claims that it

engenders, and the consequent need for agency expertise

and administrative experience,” Barnhart v. Walton, 535

U.S. 212, 225 (2002), Congress “conferred on the [Commis-

sioner] exceptionally broad authority to prescribe standards

for applying certain sections of the Act,” Schweiker v. Gray

Panthers, 453 U.S. 34, 43 (1981); Gov’t Br. 21-22. And re-

spondent concedes that, under Chevron U.S.A. Inc. v. Natu-

ral Res. Def. Council, Inc., 467 U.S. 837 (1984), and Walton,

supra, the Commissioner’s construction of 42 U.S.C. 423(d)

must be upheld unless “the statute unambiguously forbids”

it or, “for other reasons,” it “exceeds the bounds of the

permissible.” 535 U.S. at 218; Gov’t Br. 21.

Respondent, however, makes neither showing. Section

423(d)(2)(A)’s text does not “unambiguous[ly]” bar (Resp.

Br. 20) the Commissioner’s construction that the “significant

numbers” in “the national economy” requirement applies to

“other * * * work,” but not to “previous work” the claimant

has done before. To the contrary, the text on which respon-

dent focuses at most exhibits the sort of ambiguity the Com-

missioner is empowered to resolve. Thus, while respondent

argues that the words “any other” in Section 423(d)(2)(A)

(1)

2

compel the conclusion that “previous work” (like “other * * *

work”) must “exist{] in the national economy” in “significant

numbers,” FTC v. Mandel Brothers, 359 U.S. 385, 389 & n.4

(1959), rejected an indistinguishable argument. Gov't Br. 29-

31. Respondent's claim of textual clarity is also belied by de-

cades of judicial decisions rejecting the very interpretation

respondent proposes. Gov't Br. 31-32; Pet. 18-20; p. 7, infra.

Respondent also fails to grasp the significance of the lan-

guage in Sections 423(d)(1A) and (2)(A) that serves to

maintain the essential distinction between a disability pro-

gram and an unemployment program. Those provisions

require that the impairment and its severity, not other

causes such as technological change, be the reason for the

claimant's inability to do her previous work. Respondent's

position conflicts with more than four decades of administra-

tive construction adhering to that central requirement,

which Congress has repeatedly endorsed while amending the

Act (and the definition of disability) in other respects.

Ultimately, respondent’s submission reduces to her re-

peated assertion that the Commissioner’s construction leads

to “ludicrous” results and represents “bad public policy.”

Resp. Br. 42; see id. at 25, 43. But that argument rests on

the wholly unsubstantiated and unrealistic scenario of a

claimant who is physically incapable of performing any job

except her particular past job, only to have that job dis-

appear. Resp. Br. 1 (“the only job an individual can physi-

cally perform is no longer in existence”). There is nothing in

Section 423(d)’s text or history that suggests that Congress

intended to design the statutory standards for administering

this massive program around that remote hypothetical. Nor

is there anything to suggest that Congress sought to man-

date, for all workers performing occupations that do not

exist in significant numbers in the national economy, a cate-

gorical exemption from he generally applicable disability

requirement that their impairments render them physically

or mentally unable to perform their former jobs. The point

of the past-work inquiry is not “that [a claimant] can actually

3

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

tain level of work.” Pet. App. 23a (Rendell, J., dissenting).

It thus represents an accurate measure of capacity to work

more generally, whether or not that particular past job

exists in significant numbers. Indeed, unlike the general-

izations embodied in the grid regulations used at step five of

the sequential evaluation process to determine whether a

claimant can adjust to “other * * * work” she has not before

performed, a claimant’s continued capacity to do the work

she did in the past is a readily available, individualized, and

concrete measure. In a system that handles millions of

claims each year, the need for such a ready, accurate, and

claimant-specific screening measure is particularly acute.

A. The Commissioner's Construction Is Supported, Not

Foreclosed, By The Text Of Section 423(d)

1. Departing from the court of appeals’ reasoning, re-

spondent argues (Br. 20) that the words “do” and “engage”

in Section 423(d)(2)(A) require inquiry into the availability of

the claimant’s previous work because a claimant cannot “do”

or “engage in” a job that is not “an existing occupation.”

Resp. Br. 21. Respondent misreads the statutory text.

First, Section 423(d) by its terms does not mandate bene-

fits whenever the claimant is unable to engage in a prior job,

for whatever reason. Rather, Section 423(d)(1A) requires

the claimant to be unable to work “by reason of” his impair-

ments, while Section 423(d)(2)(A) precludes a finding of dis-

ability unless the impairments are “of such severity that he is

* * * unable to do his previous work” (and “any other kind of

substantial gainful work”). 42 U.S.C. 423(d)(1) and (2)(A)

(emphases added). Consequently, it must be the impairment

and its severity that render the claimant “unable to do”

previous work. Gov't Br. 25. For example, a claimant who is

physically capable of performing a former job but is banned

from the industry does not become “disabled” by virtue of

the ban. Such a claimant is not “unable to do” that job “by

reason of” an impairment; nor does he have an impairment of

7

“such severity that he is * unable to do his previous

work.” The same is true of a claimant asserting inability to

do her former job solely “because that job does not exist in

significant numbers in the national economy.” Resp. Br. 26

Second, in the context of a disability program concerned

with the effects of “physical or mental impairment(s],” the

phrases “unable to do” and “cannct * * * engage” necessarily

refer to the physical and mental capacity to perform the job

—what the Commissioner refers to as residual functional

capacity” or “RFC,” see Bowen v. City of New York, 476

U.S. 467, 471 (1986)—not the claimant’s ability to obtain that

job in view of other factors. The Commissioner’s regulations

thus advise claimants that “/y/our timpairment(s) must pre-

vent you from doing your past relevant work.” 20 C.F.R.

404.1520(e), 416.920(e) (emphasis added). And they explain

that the Commissioner determines ability to “do” past work

by examining the claimant’s residual functional capacity and

comparing that to the demands of the prior work. /bid.;

Gov't Br. 7. Indeed, to eliminate any possible misunder-

standing, the Commissioner, in regulations signed May 22,

2003, amended 20 C.F.R. 404.1560(b) and 416.960(b) to state

explicitly that the agency does “not consider * * * whether

your past relevant work exists in significant numbers in the

national economy” when evaluating ability to do past rele-

vant work. 68 Fed. Reg. 51,153, 51,163, 51,166 (2003) (to be

codified as 20 C. F. R. 404.1560(b)(3), 416.960(b)(3)).’

The amendment to 20 C. F. R. 404.1560(b) and 416.960(b) was made as

part of a comprehensive rulemaking directed primarily to other matters,

particularly the allocation of the burden of proof at steps four and five of

the sequential evaluation process. 67 Fed. Reg. 39,904 (2002) (notice); 68

Fed. Reg. at 51,153. In response to a public comment requesting that she

“clarify” that past work must exist in significant numbers in the national

economy, the Commissioner explained that the clause “‘which exists in the

national economy’ relates to ‘any other substantial gainful activity’” but

not “to previous work, and that the agency therefore does] not con-

sider job prevalence” when evaluating ability to do previous work. /d. at

51,159. The amendment to 20 C. F. R. 404.1560(b) and 416.960(b) ensurels

that other members of the public do not misunderstand this.” /bid.

5

Third, respondent's contention that the words “unable to

do” or cannot * * engage” require examination of the

claimant’s realistic “ability to comp{Jete in the open market”

or obtain “real jobs” that “pay bills” (Br. 19, 26) renders

Section 423(d)(2)(A) self-contradictory. Section 423(d\(2) A)

expressly states that the claimant's ability to perform work

precludes a finding of disability, for example, “regardless of

* * * whether he would be hired if he applied for work.” Dis-

ability insurance protects workers against the loss of physi-

cal and mental capacity to perform their former job or any

other work, not against inability to get a job. The Senate

and House Reports accompanying Section 423(d)(2)(A)'s

enactment in 1967 made the same point: “While such factors

as * whether there are job openings, or whether [the

claimant] would or would not actually be hired may be

pertinent in relation to other forms of protection, they may

not be used as a basis for finding an individual to be

disabled.” S. Rep. No. 744, 90th Cong., Ist Sess. 49 (1967);

H.R. Rep. No. 544, 90th Cong., Ist Sess. 30 (1967).

2 Respondent quotes (Br. 19) the 1960 Preliminary Report on the

Administration of Social Security Disability Insurance Program of the

Staff of the Subcommittee on the Administration of the Social Security

Laws of the House Committee on Ways and Means, 86th Cong., 2d. Sess.

20 (1960 Report), which states that “theoretical capacity ** can be

somewhat meaningless if it cannot be translated into an ability to compete

in the open labor market.” But respondent fails to quote the next

sentence, which urges the Commissioner to perform a “study of this

situation to see if criteria can be developed.” /bid. The Commissioner's

1961 regulations and the enactment of Section 423(d)(2)(A) in 1967 were

the response to that suggestion. See pp. 9-13, infra. The legislative

history of Section 423(d)(2)(A) makes it clear that Congress sought to

overrule court decisions that, purporting to adopt a “practical” approach,

had awarded benefits to claimants who were physically capable of working

but realistically would not be “considered for” jobs “by reason of hiring

practices.” S. Rep. No. 744, supra, at 47-48; H.R. Rep. No. 544, supra, at

29. Respondent also ignores the 1960 Report's acknowledgment (at 19)

that “[ljack of ability to engage in a job is essential” to disability

determinations, but I Ilack of ability to get a job * * * is immaterial.”

6

2. Falling back to the court of appeals’ reasoning, re-

spondent also relies (Br. 20-21, 22, 26-27) on the word “other”

in the phrase “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,” 42 U.S.C. 423(d)(2)(A)

(emphasis added), The words “any other kind of,” respon-

dent insists, would “serve no purpose” unless they required

“previous work” (like “other * * * work”) to exist in “signi-

ficant numbers in the national economy.” Resp. Br. 21, 22.

That argument lacks merit.

Under the Commissioner’s construction, the words “any

other kind of” are not superfluous. Instead, they indicate

that the “previous work” (like the “other * * * work”) that

can render a claimant ineligible for benefits is to be “sub-

stantial gainful work,” as respondent concedes. See Resp.

Br. 21 (previous work must be “substantial and gainful”);

Gov’t Br. 33. Respondent thus errs in contending (Br. 21-22)

that Congress would have omitted the words “other kind of”

had it intended the agency’s construction; that omission

would suggest that the “previous work” need not have been

either “substantial” or “gainful” to disqualify a claimant for

benefits. Indeed, respondent’s hypothetical version of Sec-

tion 423(d)(2)A) (see Br. 20) would do just that. It would

preclude a finding of disability unless the claimant is both

unable to do his “previous work and cannot * * * engage in

any substantial gainful work which exists in the national eco-

nomy.” Resp. Br. 20. Unlike the actual text of Section

423(d)(2)(A), respondent’s hypothetical text does not indicate

that “previous work” is to be “substantial gainful work.”

Consequently, the only question here is whether the

words “any other kind of”—in addition to clarifying that

“previous work” is to be “substantial gainful work”—also

unambiguously require previous work to “exist[{] in the

national economy” in “significant numbers.” As to that ques-

tion, Mandel Brothers, 359 U.S. at 389-390 & n.4, is

controlling. See Gov't Br. 29-30. In Mandel Brothers, this

— —

7

Court rejected the argument that the word “other” in the

phrase “purchaser, consignee, * * * or any other person who

is engaged in dealing commercially in fur,” 359 U.S. at 386

(emphasis added), required that a “purchaser” or “con-

signee” be a person “who is engaged in dealing commercially

in fur.” Instead, the Court held that the word “other”

introduced ambiguity. Id. at 389. The Court then invoked

the rule that a “limiting clause is to be applied only to the

last antecedent” to hold that the limiting clause “who is

engaged in dealing commercially in fur” applied only to the

words it immediately followed, “other person,” and not to

more remote words such as “purchaser” or “consignee.” Id.

at 389-390. Likewise here, 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,” the words “any other kind of” do not require that

“previous work” be work “which exists in the national econ-

omy” in “significant numbers.” Gov't Br. 26, 30-31. Instead,

that requirement applies only to the last antecedent, “other

*** work”—as the Commissioner has long held, Gov’t Br.

3-7, 34-37, 39-41, and as every court that has considered the

issue for the past three decades (until the decision below)

has agreed. See 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 (8th Cir. 1996).

3 Although respondent concedes (Br. 36-37) that Pass and Chater

sustain the Commissioner's construction, see Gov't Br. 31, 41-42; Pet. 19-

20, she attempts to distinguish Quang Van Han (Br. 34) by citing the

opinion’s passing remark that a claimant “may” be able to challenge

certain applications of the Commissioner’s rules. But Quang Van Han

unambiguously rejected respondent’s view, holding that while “the Act

requires ‘other’ work to exist in the United States, it places no such limita-

tion on ‘previous’ work.“ 882 F.2d at 1457; ibid. (“limitations governing

other work do not modify previous work”); Gov't Br. 26, 31. Respondent’s

attempted distinction of Garcia (Br. 34-36) ignores the court’s clear

holding that the Act’s text “easily bears” the Commissioner’s construction,

Garcia, 46 F.3d at 558-559; respondent’s claim that an alternative holding

8

Respondent does not deny that Mandel Brothers rejected

the very construction that she now insists is mandated by

the grammatically parallel statutory text at issue here. In-

stead, respondent urges that Mandel Brothers never “sug-

gestled] that it had created a rule with any future preceden-

tial value.” Resp. Br. 23. But Mandel Brothers nowhere

suggests that it was meant to lack precedential force, and

the rule of the last antecedent it invokes is well established.

Gov’t Br. 30-31. Nor can respondent distinguish Mandel

Brothers on the ground (Br. 23) that the construction adop-

ted there “further[ed] the objective of the statute.” The

Commissioner’s construction here likewise furthers the

objectives of the statute by promoting an administrable and

accurate disability program that emphasizes medical factors.

Gov’t Br. 41-47; p. 19 & n.10, infra. That construction also

reflects the reasonable conclusion that, in enacting Section

423(d)(2)(A), Congress was cognizant of and sought to

preserve the distinct treatment of previous work and other

work long reflected in agency regulations, written guidance,

and judicial decisions. See Gov’t Br. 39-40; pp. 11-13, infra.

Respondent’s reliance (Br. 26-27) on the court of appeals’

grammatical analogies (Pet. App. 8a) is similarly misplaced.

Those analogies neither parallel the structure of Section

423(d)(2)(A) (see Gov’t Br. 32-33), nor prove the Third Cir-

cuit’s newly minted rule that, “[w]hen a sentence sets out

one or more specific items followed by ‘any other’ and a de-

scription, the specific items must fall within the description.”

Pet. App. 8a. The construction this Court adopted in Mandel

suggests a different result in other circumstances is unpersuasive.

Finally, the dictum from Kolman v. Sullivan, 925 F.2d 212 (7th Cir. 1991),

cited by respondent (Br. 37-38) did not rely on (or address) the text of the

Act; instead, it invoked a (mistaken) view of the regulations. See Gov't Br.

31 n.8. To the extent that Kolman’s dictum echoes respondent’s policy

concern, Kolman never suggested that the remote hypothetical it cited

(the ice cutter who can do no other work and whose job is rendered

obsolete by refrigerators) is realistic or could justify overturning a

longstanding construction recognized by Congress.

9

Brothers defies that supposed rule, as do the examples set

forth in the government’s brief (at 32-33). Thus, one might

say “not only have I not seen a tiger, but I have not seen any

other large animal which can climb higher than a tiger.”

That statement obviously does not imply that a “tiger” must

be a “large animal which can climb higher than a tiger”; it

means only that a tiger is a “large animal.” Similarly here,

Section 423(d)(2)(A)’s language—“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” in “significant numbers”—indicates that “previous

work” is a “kind of substantial gainful work,” but it does not

unambiguously mandate that previous work also must “exist

in the national economy” in “significant numbers.“

B. The Legislative Evolution And Longstanding Ad-

ministrative Construction Of Section 423(d) Con-

tradict Respondent’s Position

1. Respondent does not dispute that the Act’s legislative

history repeatedly contradicts her position. See Gov’t Br.

34-35, 38-39. For example, the Senate Report accompanying

the 1954 enactment of the “disability” definition directed the

Commissioner to “require[] that the individual be disabled

not only for his usual work but also for any type of substan-

tial gainful activity.” S. Rep. No. 1987, 83d Cong., 2d Sess.

21 (1954) (emphasis added). The House Report accompany-

ing the 1965 amendments reflected the same understanding:

Although respondent complains (Br. 27) that two of the three

examples offered in the government’s brief “definitively exclude[] any pos-

sibility that” the first item * * could ever constitute a related subcate-

gory of the [later] descriptive phrase,” that is precisely the point. Some-

times, as in Mandel Brothers and here, earlier categories (such as “previ-

ous work” or “tiger”) fall within the first part of a category following the

words “any other kind of” (such as “substantial gainful work” or “large

animal”), but not within a succeeding limiting clause (such as “which exists

in the national economy” or “which can climb higher than a tiger”).

Respondent, moreover, offers no answer to the third example in the

government's brief (at 33).

10

In line with the original views expressed by your com-

mittee and since reaffirmed, to be eligible an individual

must demonstrate that he is not only unable, by reason of

a physical or mental impairment, to perform the type of

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

into account his age, education, and experience, to per-

form any other type of substantial gainful work, regard-

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

locality in which he lives.

H.R. Rep. No. 213, 89th Cong., Ist Sess. 88 (1965) (emphasis

added). Respondent’s claim that she is entitled to benefits

even though she has the physical and mental capacity to do

her former job cannot be reconciled with those reports: She

is not “disabled” from her “usual work.” Nor is she “unable,

by reason of a physical or mental impairment, to perform

the type of work Is he previously did.” See Gov’t Br. 35-36.

Respondent’s position likewise contradicts the House and

Senate Reports accompanying Section 423(d)(2)(A)’s enact-

ment in 1967. See Gov’t Br. 37-38. Each of those reports

acknowledged the Commissioner’s separate treatment of

previous work and other work, explaining that the Commis-

sioner has the burden of showing the existence of “other”

work the claimant can do only after “the claimant has shown

inability to perform his usual vocation.” S. Rep. No. 744,

supra, at 47; H.R. Rep. No. 544, supra, at 29. Indeed, those

reports directly parallel the Commissioner’s construction,

describing previous work and other work in entirely

separate clauses, and using the phrase “which exists in the

national economy” to limit “other * * work“ but not

“previous work”:

The language added by the bill would provide: * * * that

if, despite his impairment or impairments, an indivi-

dual still can do his previous work, he is not under a dis-

ability; and that if, considering the severity of his impair-

ment 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

11

economy even though he can no longer do his previous

work, he also is not under a disability regardless of whe-

ther 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; Garcia, 46 F.3d at 558 (legislative

history qualifies “other * * * work” but not “previous work”);

SSR 82-40 (1982) (same) (available in 1982 WL 31388, at *2).

2. For more than four decades, the Commissioner has

construed the definition of disability to require that a claim-

ant be unable to perform her previous work because of a

physical or mental impairment, and not because of other

factors such as layoffs or technological change. Respondent

does not deny that that construction is reflected in the Com-

missioner’s 1955 Disability Freeze State Manual (see Gov't

Br. 34), and early regulations (Gov't Br. 4-5, 36). See 25 Fed.

Reg. 8100 (1960) (codified at 20 C.F.R. 404.1502(b) (1961))

(claimant not disabled if “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”). Nor does she deny that the Commissioner’s con-

struction appears repeatedly in congressional reports and

court decisions published throughout the 1960s. Gov’t Br.

19, 34-39; pp. 9-11, supra; e.g., Massey v. Celebrezze, 345 F. 2d

146, 149 (6th Cir. 1965) (“emphasiz[ing] that” the claimant

“was not unemployed because of * * * technological changes

in the industry in which he had been employed”); May v.

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

denied where claimant “failed to establish” that he was

“disabled from following his usual occupation“).

5 Contrary to respondent’s assertion (Br. 31-33), May v. Gardner can-

not be distinguished on the ground that the claimant there failed to show

that his usual work did not exist in significant numbers in the national

economy. The “significant numbers” in the “national economy” standard

was not introduced until the enactment of Section 423(d)(2)(A) in 1967, a

year after May was decided. That decision, moreover, nowhere suggests

that work in the claimant’s former occupation—mine dispatcher—was

12

Indeed, only months before Congress enacted Section

423(d)(2)(A) in 1967, the Commissioner issued an OASI Dis-

ability Insurance Letter to the state agencies responsible for

making initial disability determinations, see 42 U.S.C.

421(a)(1), reiterating that a “finding of disability * * should

be made under §404.1502(b) only when the evidence estab-

lishes (1) the individual is unable to do his customary work

by reason of a medically determinable impairment; and

(2) there is no substantial gainful activity available to him in

the economy that he has capacity to perform.” SSA, OASI

Disability Insurance Letter No. III-3 (Disability Insurance

State Manual, Pt. III), at 2 (July 4, 1967). Finally, that same

understanding was incorporated into the five-step sequential

evaluation process formalized in 1978, Gov’t Br. 40 n.9, and

current regulations, Gov’t Br. 7. See Bowen v. Yuckert, 482

U.S. 137, 141 (1987) (fourth step “determines whether the

impairment prevents the claimant from performing work he

has performed in the past”) (emphasis added).

That longstanding construction, see Norwegian Nitrogen

Prods. Co. v. United States, 288 U.S. 294, 315 (1933); Gov't

Br. 21-22, is particularly significant given that Congress has

left it unaltered for more than four decades, as it repeatedly

amended the Act (and the definition of disability) in other

respects. Gov’t Br. 34-39. Even after the courts upheld that

construction in Quang Van Han, Garcia, Pass, and Rater,

Congress in 1996 amended the definition of disability by

adding 42 U.S.C. 423(d)(2)(C) (addressing impairments based

on alcoholism and drug addiction), again without disturbing

available outside the area where the claimant worked. Rather, it required

the claimant to show that he was “disabled” from doing that previous

occupation, i.e., that an impairment rendered him physically incapable of

performing it. Thus, May (like Section 423(d)(2)(A)’s legislative history

and cases such as Massey v. Celebrezze, supra, and Reyes Robles v. Finch,

409 F. 2d 84, 86 & n.1 (Ist Cir. 1969), quoted at Gov't Br. 19 & n.6) shows

that Congress enacted Section 423(d)(2)(A) against the backdrop of

established precedent that availability had to be shown for other work,

but not for the claimant’s previous work.

13

the Commissioner’s construction. See Pub. L. No. 104-121,

§ 105(a)(1), 110 Stat. 852. Those “circumstances provide

further evidence—if more is needed—that Congress

intended the Agency’s interpretation, or at least understood

the interpretation as statutorily permissible.” Walton, 535

US. at 220; CFTC v. Schor, 478 U.S. 833, 846 (1986).

3. Respondent nonetheless asserts (Br. 8-9) that the

Commissioner’s construction was “first” articulated in SSR

82-40 in 1982. But that assertion ignores all that went

before: the Commissioner’s 1961, 1968, and 1978 regulations;

the 1967 OASI Disability Insurance Letter; the admini-

strative materials and constructions reflected in legislative

reports and court decisions throughout the 1960s; and the

legislative history of the 1965 and 1967 amendments.

Responuent also misreads SSR 82-40’s observation that “a

view commonly expressed is that a foreign job is not ‘rele-

vant’ unless substantially similar work can be found in the

U.S. economy.” SSR 82-40 (1982 WL 31388, at *2). Attrib-

uting that view to “social security adjudicators,” respondent

suggests that the agency had wavered. Resp. Br. 9-10. But

SSR 82-40 did not attribute that view to social security adju-

dicators (as distinguished from claimants or their counsel).

Further, SSR 82-40 stated only that such was a common

view for past “work performed in a foreign country,” not

domestic work. Indeed, SSR 82-49 not only rejected that

view, but did so by clarifying that the Commissioner's

established rules—which advised claimants that Ay lour

impairment must prevent you from doing past relevant

work”—apply with equal force to work performed in foreign

countries. SSR 82-40 (1982 WL 31388, at *1-*2) (quoting 20

C. F. R. 404.1520(e) (1981)). “The relevance of past work in a

foreign economy,” the ruling thus declared, “is no different

from the relevance of past work in the U.S. economy / .

If a claimant can meet the * * * physical and mental require-

ments of a past job, he or she is still functionally capable of

performing that job,” even if “the individual no longer

resides in the country where the past work was performed.”

14

SSR 82-40 (1982 WL 31388, at *2) (emphasis added). The

Act “does not qualify ‘previous work,’” the ruling also noted,

“but does specify that other. . work’ must exist in signi-

ficant numbers in the national economy.” Ibid. Respondent

does not dispute that SSR 82-40 explicitly rejects her

position.

Respondent also errs in claiming (Br. 13) that SSR 82-62

“contradicts” the Commissioner’s position by requiring ad-

judicators to find “that the individual’s RFC [residual func-

tional capacity] would permit a return to his or her past job

or occupation”; one cannot “return” to a job, respondent ar-

gues, if it does not exist in significant numbers. But SSR 82-

62’s use of the conditional tense—“would permit”—belies

that contention; adjudicators must find that the claimant’s

functional capacity would permit a return if the opportunity

to do such work were presented, not that such an opportu-

nity will be presented. SSR 82-62 (available in 1982 WL

31386, at *4). And SSR 82-62 explains that the ultimate

question is whether the claimant “has the capacity to per-

form a past relevant job.” SSR 82-62 (1982 WL 31386, at *4).

It thus requires findings regarding the claimant’s residual

functional capacity and the physical and mental demands of

Although respondent asserts (Br. 10-11) that SSR 82-40 failed to list

the existence of former work as a factor that is “not pertinent,” she

overlooks the two sentences immediately following the one she quotes (as

well as the ruling’s unequivocal statement, quoted above, that the signifi-

cant numbers requirement applies to other work but not previous work).

The ability to “meet the physical and mental demands of a formerly held

foreign job,” those sentences explain, precludes a finding of disability

whether or not that past job has “a counterpart in the U.S. economy.”

SSR 82-40 (1982 WL 31388, at 2). Respondent's reference (Br. 9-10) to

the “practice of verifying or supplementing a claimant’s description of

* * * past jobs with available information about work in the U.S. economy”

does not advance her cause either. Such information could be used to

assess the credibility of assertions regarding the demands of past work, or

to determine whether the claimant can perform that past work as it is cur-

rently performed in the United States, even if the claimant cannot do that

work as it was performed abroad. See SSR 82-61 (1982 WL 31387, at *2).

15

the past job, but no findings regarding whether the past job

exists in significant numbers in the national economy. Ibid.

C. Respondent’s Policy Arguments Are Unavailing

1. Respondent errs in contending that the regulations

governing step five of the sequential evaluation process

—the “Medical-Vocational Guidelines” or “grid regulations”

four d in 20 C.F.R. Part 404, Subpart P, Appendix 2—

“prove” as a matter of “statistical science” that “there are no

jobs existing in significant numbers in the national economy”

that respondent can perform. Resp. Br. 29, 39-40. The

regulations used at step five were developed to improve

“both the uniformity and efficiency” of the inquiry into

whether a claimant who cannot perform her previous work

can nonetheless adapt to “other * work which exists in

the national economy” in “significant numbers.” Heckler v.

Campbell, 461 U.S. 458, 460-462 (1983). To that end, the reg-

ulations establish grids that take administrative notice of

jobs requiring work at various exertion levels (sedentary,

light, and medium work) and factor in the claimant’s age,

education, and work experience, to “direct” an administra-

7 Respondent's reliance (Br. 12-13) on the “relevance” requirement

articulated in SSR 82-62 is similarly misplaced. That ruling provides that

past work will not be considered—it will be deemed “not relevant” as an

evidentiary matter in determining the claimant's capacity for work if it

was performed more than 15 years ago, or only for a short time. SSR 82-

62 (1982 WL 31386, at 2). The 15-year cut-off establishes a limited,

bright-line presumption that makes claims resolution easier by ordinarily

eliminating the need for claimants to list and adjudicators to examine

every job the claimant held during her potentially long life. See SSA

Program Operations Manual System (POMS) DI 11005.023, DI 11005.025.

As such, it is a permissible exercise of the Commissioner's authority to

“fill in” necessary details related to program administration. Walton, 535

U.S. at 225. The Commissioner’s regulations regularly use such pre-

sumptions to promote efficiency and uniformity. See Cleveland v. Policy

Mgmt Sys., 526 U.S. 795, 804 (1999); Heckler v. Campbell, 461 U.S. 458,

461-462, 468 (1983). That the Commissioner has established a bright-line,

15-year rule that promotes uniformity and efficiency does not mean that

she must also adopt rules, like respondent's, with the opposite effect.

16

tive conclusion that the claimant can (or cannot) make an

adjustment to such other work. See id. at 461, 462 & n.3; 20

C. F. R. Pt. 404, Subpt. P, App. 2, § 202.00(a), (b).

However, like other steps of the sequential process, the

grids “embod[y] a set of presumptions about disabilities, job

availability, and their interrelation” that, while necessary “to

administer a large benefits system efficiently,” must “inevi-

tably simplify, eliminating consideration of many” factors.

Cleveland v. Policy Mgmt. Sys., 526 U.S. 795, 804 (1999). As

the government’s amicus brief in Cleveland explained (at

12), Ablecause of the * generalized presumptions,” even

“a finding that a person is disabled * * * does not” neces-

sarily “mean that there is no job that he can perform.”

For example, the grid regulation respondent invokes (Br.

28-29) directs a finding of “disabled” for a claimant over age

55 who can do light work but has limited education and no

transferable skills. See 20 C.F.R. Pt. 404, Subpt. P, App. 2,

Table No. 2, Rules 202.01, 202.02; 20 C.F.R. 404.1563(e),

416.963(e). In fact, however, the rules take administrative

notice of 1600 unskilled occupations that can be performed

by persons having the capacity for light work, and each

occupation may represent thousands or tens of thousands of

jobs in the national economy. See 20 C. F. R. Pt. 404, Subpt.

P, App. 2, § 202.00. To promote efficiency and uniformity,

the grid regulation nonetheless directs a finding of disability,

conclusively presuming that no claimant over 55 who is

unable to do her previous work, who has a limited education,

and who lacks transferable skills can adjust to jobs in those

1600 categories. The grids, moreover, evaluate whether

claimants who have impairments that prevent them from

doing their past work can adjust to other work, 20 C. F. R.

404.1569, 416.969, not the adjustment capacity of claimants

who have suffered no life change aside from the loss of (or a

decision to leave) a particular past job.

It is precisely because the grids used at step five must in-

corporate so many generalizations that the previous work

inquiry at step four is so critical. See Gov't Br. 42, 43-44.

17

Unlike the grids, the previous work inquiry looks solely to

the claimant’s individually determined capacity and the con-

crete demands of the work she has performed in the past.“

Court after court has recognized that ability to perform

“past relevant work” serves to show that the claimant “is

able to do a certain level of work,” whether or not that par-

ticular job exists in significant numbers. Pet. App. 18a, 23a

(Rendell, J., dissenting). It is a “gauge by which to measure

the” claimant’s capabilities rather than a means by

which to assure that [she] can actually find employment.”

Pass, 65 F.3d at 1204; Quang Van Han, 882 F.2d at 1457 (if a

claimant has the capacity “to perform his previous work, his

impairment is clearly not so severe as to preclude employ-

ment”). By eliminating that needed gauge, and remitting the

Commissioner to presumption-laden grids whenever the

claimant has left an unusual occupation, respondent would

undermine the accuracy of disability determinations.

Respondent’s claim that the grid regulations prove that

she is unable to work also ignores the ALJ’s extensive

findings in this case at step four of the sequential evaluation

process (see Gov’t Br. 9-10), and his conclusion that “there is

considerable question as to whether there is even a ‘severe’

impairment” that would allow respondent’s case to proceed

beyond step two. Pet. App. 42a. That second step “identi-

® The fact that “previous work” is concrete and limited by the

claimant’s experience also explains the different treatment of “previous

work” and “other *** work.” It makes sense that Congress, in enacting

Section 4230 NA), would have seen no reason to place additional limits

on the circumscribed category of “previous work” the claimant has done,

but would have found it appropriate to limit the otherwise expansive

category of other work - category that includes myriad jobs the

claimant has never performed—by requiring that such other work “exist

in the national economy” in significant numbers.

® Respondent does not dispute the ALJ’s findings that the record does

not support her claim of disability from hypertension or cardiac

arrhythmia, Pet. App. 40a; from what she characterized as a stroke, id. at

43a; or from lower back pain or a right ankle fracture, id. at 42a-43a.

18

flies] at an early stage those claimants whose medical

impairments are so slight that it is unlikely they would be

found to be disabled.” Yuckert, 482 U.S. at 153 (emphasis

added). Respondent also ignores the ALJ’s finding that

respondent “retains the functional capacity for work through

at least a light level of exertion.” Id. at 43a; id. at 44a-45a

(“capacity to perform work-related activities except for per-

haps medium and heavy lifting and extensive bending and

stooping”). And she ignores the district eourt’s extensive

analysis agreeing with the ALJ’s assessment of the relative

insubstantiality of her impairments. Pet. App. 28a-31la;

Gov't Br. 11. There is thus particular reason for confidence

that respondent’s ability to do her former work manifests

capacity to work generally.

2. Respondent’s assertion that the Commissioner’s con-

struction yields absurd results, moreover, rests on the unre-

alistic scenario of actual claimants who are physically and

mentally capable of doing only their past work, and no other

job. Even the majority opinion below agreed that such

would be an unusual case, Pet. App. 12a-13a n.5, a conclusion

supported by the longevity of the Commissioner’s construc-

tion and the absence of any evidence that it has disqualified

real-life claimants who meet the hypothetical profile respon-

dent posits. There is no evidence that Congress indulged

such a remote hypothetical, or intended to fashion the stan-

dards for an enormous program with millions of claims each

year to accommodate it. Indeed, when explaining Congress’s

decision to make the claimant’s age irrelevant when deter-

mining her ability to perform past work, respondent declares

that, although “the claimant might be a few years older,”

that “would rarely, if ever, pose any hurdle to the

resumption” of previous work. Resp. Br. 24. Similar logic

applies here. Congress reasonably chose to make the “signi-

ficant numbers” requirement irrelevant to the “previous

work” inquiry because “rarely, if ever,” would a claimant be

able to do her particular past job but no other. Congress,

moreover, presumably understood that many people might

19

hold jobs that do not exist in significant numbers in the

national economy. There is no reason to suppose that

Congress wanted to entitle individuals leaving such jobs to

greater access to benefits than everyone else.

Respondent’s position would also undermine the efficiency

of disability determinations, introducing into step four a

potentially complex inquiry into whether the past work the

claimant is medically capable of performing exists in sig-

nificant numbers in the national economy. Because the eval-

uation process is non-adversarial, the Commissioner must

“investigate the facts and develop the arguments both for

and against granting benefits.” Sims v. Apfel, 530 U.S. 103,

110-111 (2000). And by injecting that inquiry into the fourth

step, respondent would contravene Congress’s undisputed

intent that Section 423(d)(2)(A) reemphasize the predomi-

nance of medical over other factors. Gov’t Br. 38-39. [To

consider the presence of jobs in he national economy at step

four * * * would risk transforming a predominantly medical

determination into one with practical availability of employ-

ment at its center and would thus undercut a fundamental

policy of the Act.” Garcia, 46 F.3d at 559."°

Finally, the Commissioner’s longstanding construction is

consistent with Congress’s purpose to establish an adminis-

trable program of disability insurance, not insurance against

economic change or unemployment. See Gov't Br. 46-47. As

the district court observed, disability insurance “provides for

people who physically are incapable of performing the type

10 Respondent's claim that “the second step * * * satisfies the Con-

gressional intention that medical factors assume primacy,” Resp. Br. 23, is

without merit. The second ste, merely identiflies] at an early stage

those claimants whose medical impairments are so slight that it is unlikely

they would be found to be disabled.” Yuckert, 482 U.S. at 153 (emphasis

added). Even though Congress’s goal in enacting Section 423(d)(2)(A) was

to emphasize “the predominant importance of medical factors” over econo-

mic considerations, S. Rep. No. 744, supra, at 48, respondent argues that

Congress in fact did the opposite, introducing job-market considerations

into the otherwise clear fourth step of the sequential evaluation process.

20

of job they did in the past it “does not provide for people

who lost their job.” Pet. App. 28a. Private disability insur-

ance policies—to which Congress often looked in drafting

disability standards, e.g., H.R. Rep. No. 213, supra, at 89

(duration); S. Rep. No. 1987, supra, at 20 (waiver of premium)

—typically also require that the claimant’s impairment be

the reason for the inability to perform previous work."

For all these reasons, respondent is simply wrong in as-

serting that the Commissioner’s longstanding implementa-

tion of the disability insurance and SSI programs should be

rejected as unrealistic or absurd. To the contrary, that

construction is supported by the statutory text, is reflected

in legislative history, furthers statutory purposes, mirrors

general disability insurance principles, and is embedded in

the program’s evolution and ongoing operation with respect

to millions of claims annually. Respondent may prefer a

different type of insurance or greater coverage. But she has

not demonstrated that the Act “demand[s] that the Agency

make” that preference “an overriding interpretive

principle.” Walton, 535 U.S. at 225.

e

For the foregoing reasons and those stated in the gov-

ernment’s opening brief, it is respectfully submitted that the

judgment of the court of appeals should be reversed.

THEODORE B. OLSON

Solicitor General

AUGUST 2003

See, e.g., Berkshire / Guardian Disability Policy 4 <http://www.guar-

diandibrokerage.com/pdf/1100-specpolicy.pdf> (disability “means that,

because of sickness or injury, you are not able to perform the material and

substantial duties of your occupation”) (emphasis added); see S. Crawford,

Definition of Total Disability <http://www.about-disability-insurance

.com/totaldisability.html> (insured must show that, “because of a covered

sickness or accident,” she has an “inability to perform the material and

substantial duties of [her] occupation”) (emphasis added).