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Barnhart v. Thomas - Reply (Merits)

Docket number: 
No. 02-763
Supreme Court Term: 
2003 Term
Court Level: 
Supreme Court

No. 02-763

In the Supreme Court of the United States






Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

In the Supreme Court of the United States

No. 02-763






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, 525 (2002), 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); Gov't Br. 21-22. And respondent concedes that, under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), and Walton, supra, the Commissioner's longstanding 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. Br. 21.

Respondent, however, makes neither showing. The text of Section 423(d)(2)(A) does not "unambiguous[ly]" bar the Commissioner from finding a claimant not disabled based on the claimant's medical capacity to do her previous work, unless that previous work exists in significant numbers in the national economy. Resp. Br. 20. To the contrary, the text on which respondent focuses at most exhibits the sort of ambiguity the Commissioner is empowered to resolve. Thus, while respondent argues that the words "any other" in Section 423(d)(2)(A) compel the conclusion that "previous work" (like "other substantial gainful work") must "exist[] in the national economy" in "significant numbers," this Court in FTC v. Mandel Brothers, 359 U.S. 385, 389 & n.4 (1959), rejected a virtually identical argument. Gov't Br. 29-31. Respondent's claim of textual clarity is also belied by the fact that, in the more than three decades since Section 423(d)(2)(A) was enacted, every court to consider the interpretation respondent posits (until the decision below) rejected it. See Gov't Br. 31-32; Pet. 18-20; pp. __-__, infra.

More fundamentally, respondent fails to grasp the significance of the language in Sections 423(d)(1)(A) and (d)(2)(A) that serves to maintain the essential distinction between a disability program and an unemployment program. Those provisions require that the impairment and its severity, not other causes such as technological change, be the reasons both for the claimant's inability to do her previous work and her inability to engage in other work in the national economy. Respondent's position conflicts with more than four decades of administrative construction adhering to that central requirement, which Congress has repeatedly endorsed and left unaltered while amending the Act (and the definition of disability) in other respects.

Ultimately, respondent's submission reduces to her repeated assertion that the Commissioner's construction leads to "ludicrous" results and represents "bad public policy," Resp. Br. 42; see id. at 25, 43. 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 jobs, only to have those jobs disappear. Resp. Br. 1 ("the only job an individual can physically perform is no longer in existence"). However, the point of the past-work inquiry at step four 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). It thus represents an accurate measure of capacity to work generally whether or not that past particular job exists in significant numbers. Indeed, unlike the generalizations 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 performed in the past, a claimant's continued ability 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.

Respondent's focus on denying disability benefits based on the ability to perform an allegedly non-existent job, moreover, distorts the question of statutory construction before the Court. That question is whether Congress mandated a categorical exemption for all workers performing unusual occupations from the generally applicable disability requirement that the claimant be physically or mentally unable-rather than unwilling, for example-to perform their former job simply whenever that job does not exist in significant numbers. As explained here and in the government's opening brief, it did not.

A. The Commissioner's Construction Is Supported, Not Foreclosed, By the Text Of Section 423(d)

1. Departing from the court of appeals' reasoning, respondent 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 benefits awards whenever the claimant is unable to engage in her prior job, for whatever reason. Rather, Section 423(d)(1)(A) requires the claimant to be unable to work "by reason of" his impairments, while Section 423(d)(2)(A) precludes a finding of disability unless the claimant's impairments are "of such severity that he is * * * unable to do [her] previous work" (or "any other kind of substantial gainful work"). 42 U.S.C. 423(d)(2)(A) (emphasis added). Consequently, it must be the impairment and its severity that render the claimant "unable to do" her previous work. See 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 [a] medically determinable physical or mental impairment"; nor does she have an impairment of "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 "cannot * * * engage" necessarily refer to the respondent's 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 "your impairment(s) must prevent 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. Ibid.; see 20 C.F.R. 404.1560(b), 416.960(b); Gov't Br. 7.

Third, respondent's contention that the words "unable to do" or "cannot engage" require examination of the claimant's realistic "ability to comp[]ete 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." The disability insurance program thus protects workers against the loss of physical 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 make 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., 1st Sess. 49 (1967); H.R. Rep. No. 544, 90th Cong., 1st Sess. 29 (1967).1

2. Falling back to the court of appeals' reasoning, respondent 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). In particular, respondent insists that the words "any other kind of" would "serve no purpose" unless they required that "previous work" (like "other * * * work") be "work which exists" in "significant numbers in the national economy." Resp. Br. 21, 22.

That argument lacks merit. Under the Commissioner's construction, the words "other kind of" are not superfluous. Instead, they indicate that the "previous work"-like the "other * * * work"-that renders a claimant ineligible is to be "substantial gainful work," as respondent concedes. See Resp. Br. 21 (previous work must be "substantial and gainful"); see 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 Commissioner's construction; that omission would suggest that "previous work" need not have been either "substantial" or "gainful" to disqualify a claimant for benefits. Indeed, respondent's hypothetical version of Section 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 economy." Resp. Br. 20 (emphasis omitted). Unlike the actual text of Section 423(d)(2)(A), that language nowhere indicates that "previous work" is to be "substantial gainful work."

Consequently, the only question here is whether the words "any other," in addition to clarifying that "previous work" is to be "substantial gainful work," also unambiguously impose a requirement that previous work must "exist[] in the national economy" in "significant numbers." As to that question, FTC v. Mandel Brothers, 359 U.S. 385, 389 & n.4 (1959), is controlling. See Gov't Br. 29-30. In Mandel Brothers, this 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 "consignee" be a person "who is engaged in dealing commercially in fur." Instead, the Court held that the word "other" introduced ambiguity. 359 U.S. at 389. And, invoking the rule that a "limiting clause is to be applied only to the last antecedent," the Court held 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." Ibid. 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 economy" in "significant numbers." Gov't Br. 30-31. Instead, that requirement applies only to the last antecedent, "other * * * work"-as the Commissioner has long held, see Gov't Br. 25-26, 31, and as every court that considered the issue for the past four decades (until the decision below) 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).2

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. Instead, respondent urges that Mandel Brothers never "suggest[ed] that it had created a rule with any future precedential 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. See Gov't Br. 30-31. Nor can respondent distinguish Mandel Brothers on the ground that the construction adopted there "further[ed] the objective of the statute itself." Resp. Br. 23. The Commissioner's construction here furthers the statutory objectives by promoting an administrable and accurate disability program that emphasizes medical factors. See Gov't Br. 41-47; pp. __-__, infra. The Commissioner's construction also reflects the reasonable conclusion that, in enacting Section 423(d)(2)(A) in 1967, Congress was cognizant of and sought to preserve the Commissioner's distinct treatment of previous work the claimant has done, and other work the claimant has not done, which long reflected in the agency's regulations and written guidance, as well as judicial decisions. See Gov't Br. 39-40; pp. __-__, 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 Circuit's newly minted rule that, "[w]hen a sentence sets out one or more specific items followed by 'any other' and a description, the specific items must fall within the description." Pet. App. 8a (emphasis added). The construction this Court adopted in Mandel Brothers rejects that very rule. So do the examples set forth in our brief (at 32-33). For example, 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 reference to "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."3

B. The Legislative History and Evolution of Section 423(d) Contradict Respondent's Construction

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 definition of "disability" directed the Commissioner to impose 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). The House Report accompanying the 1965 amendments reflects the same understanding:

In line with the original views expressed by your committee 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 perform any other type of substantial gainful work, regardless of whether or not such work is available to him in the locality in which he lives.

H.R. Rep. No. 213, 89th Cong., 1st 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 committee 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 [s]he previously did." See also Gov't Br. 35-36.

Respondent's construction likewise contradicts the committee reports accompanying Section 423(d)(2)(A)'s 1967 enactment. 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 Commissioner must show the existence of "other" work the claimant can do only "once the claimant has shown inability to perform his usual vocation." S. Rep. No. 744, supra, at 47. Indeed, the House and Senate Reports accompanying the 1967 amendment 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 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[]ough 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); see Garcia v. Secretary of HHS, 46 F.3d 552, 558 (6th Cir. 1995) (noting that legislative history qualifies "other * * * work" but not "previous work" with the significant numbers requirement); SSR 82-40 (1982) (available in 1982 WL 31388, at *2) (same).

2. For more than four decades, the Commissioner has construed the definition of disability to require that a claimant be unable to perform her previous 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 Commissioner's 1955 Disability Freeze Manual (see Gov't Br. 34), and the Commissioner's 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 construction appears repeatedly in congressional reports and court of appeals decisions published throughout the 1960s. Gov't Br. 19, 34-39; pp. __-__, supra; e.g., Massey v. Celebrezze, 345 F.2d 146, 149 (6th Cir. 1965) (ordering benefits only after "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").4

Indeed, only months before Congress enacted Section 423(d)(2)(A) in 1967, the Commissioner issued an OASI Disability Insurance Letter to the state agencies responsible for making initial disability determinations (see 42 U.S.C. 421(a)(2)) reiterating that a "finding of disability * * * should be made under §404.1502(b) only when the evidence establishes (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 (Part III of Disability Insurance State Manual), 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 the Commissioner's current regulations, Gov't Br. 7. See also Yuckert, 482 U.S. at 141 (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 over four decades, even as it repeatedly amended the Act (and the definition of disability) in other respects. Gov't Br. 34-39; Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 846 (1986). Such "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 U.S. at 220.

3. Respondent nonetheless asserts (at 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 1960, 1968, and 1978 regulations; the 1967 OASI disability letter; the administrative materials and constructions reflected in legislative materials and court of appeals decisions throughout the 1960s; and the legislative history of the 1965 and 1967 amendments. And SSR 82-40 itself unambiguously addressed the issue by stating that the "significant numbers" in the "national economy" requirement applies to "other * * * work" the claimant has not done, but not to previous work the claimant has done.

Respondent also misreads SSR 82-40's observation that "a view commonly expressed is that a foreign job is not 'relevant' unless substantially similar work can be found in the U.S. economy." SSR 82-40 (1982 WL 31388, at *2). Attributing that view to "social security adjudicators," respondent suggests that the Commissioner had not followed an unwavering line. Resp. Br. 9-10. But SSR 82-40 did not attribute that view to social security adjudicators (as distinguished from, e.g., 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. And SSR 82-40 not only rejected that view, but did so by clarifying that the Commissioner's established rules-which advised claimants that "[y]our impairment must prevent you from doing past relevant work"-apply with equal force to work performed in foreign countries and the United States alike. SSR 82-40 (1982 WL 31388, at *1) (quoting 20 C.F.R. 404.1520(e) (1981)) (emphasis omitted). "The relevance of past work in a foreign economy for purposes of regulations sections 404.1520(e) and 416.920(e)," the Ruling thus declared, "is no different from the relevance of past work in the U.S. economy * * * . 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," even if "the individual no longer resides in the country where the past work was performed." SSR 82-40 (1982 WL 31388, at *2) (emphasis added). The Act "does not qualify 'previous work,'" the Ruling noted, "but does specify that 'other . . . work' must exist in significant numbers in the national economy." Ibid. The Commissioner's clarification regarding past work abroad in no way suggests that the agency ever strayed from its established construction (much less that it did so in the wholly domestic context at issue here). Ibid.5

Respondent also errs in claiming (Br. 13) that SSR 82-62 "contradicts" the Commissioner's position by requiring adjudicators to find "that the individual's RFC [residual functional capacity] would permit a return to his or her past job or occupation"; one cannot "return" to a job, respondent argues, 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 opportunity 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 perform a past relevant job." SSR 82-62 (1982 WL 31386, at *4). The Ruling thus requires findings regarding "the individual's RFC (residual functional capacity)" and "the physical and mental demands of the past job," but no findings regarding whether the past job exists in significant numbers in the national economy. Ibid.6

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" found in 20 C.F.R. Part 404, Subpart P, App. 2-"prove" as a matter of "statistical science" that "there are no jobs existing in the national economy in significant numbers" which respondent has the capacity to perform. Resp. Br. 29. 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 substantial gainful work which exists in the national economy" in "significant numbers." See Heckler v. Campbell, 461 U.S. 458, 461 (1983). To that end, the regulations establish grids that take administrative notice of jobs requiring work at various levels-sedentary, light, and medium work-and factor in the claimant's age, education, and work experience to "direct" an administrative conclusion that the claimant can (or cannot) make an adjustment to work other than her previous work. See id. at 461, 462 & n.3; 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 202.00(a), (b).

However, like many 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 "inevitably 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, "[b]ecause of the * * * generalized presumptions," even "a finding that a person is disabled for purposes of Social Security benefits does not" necessarily "mean that there is no job that he can perform." U.S. Amicus Br., No. 97-1008, at 12.

Indeed, the grid regulation respondent invokes (Br. 28-29) directs that an older individual who can do light work but has limited education and no transferable skills be deemed disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 2, Rules 202.01, 202.02. 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, Rule 202.00. To promote efficiency and uniformity, the grid regulation nonetheless presumes that no older person who is unable to do her previous work, who has a limited education, and who lacks transferrable skills can adjust to any job 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 other than the loss of (or a decision to leave) a particular past job.

It is precisely because the grids used at step five must incorporate so many generalizations that the previous work inquiry at step four is so critical. See Gov't Br. 42, 43-44. The previous work inquiry relies not on generalizations, but on the claimant's individually determined capacity and the concrete demands of the previous work she has performed.7 Court after court thus has recognized that ability to perform "[p]ast relevant work" serves to show that the claimant "is able to do a certain level of work" whether or not that particular job exists in significant numbers. Pet. App. 23a (Rendell, J., dissenting). It is an accurate "gauge by which to measure the * * * capabilities of an individual * * * rather than a means by which to assure that the claimant can actually find employment." Pass, 65 F.3d at 1204; Quang Van Han, 883 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 employment"). By eliminating that needed gauge, and remitting the Commissioner to assumption-laden grids whenever the claimant has left an unusual or rare occupation, respondent's position would undermine the accuracy of disability determinations.

Respondent's claim that the grid regulations prove she is unable to work ignores the ALJ's extensive findings at step four (see Gov't Br. 9-10),8 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 the second step of the sequential evaluation process. Pet. App. 42a. That second step "identif[ies] 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 ("residual functional capacity to perform work-related activities except for perhaps medium and heavy lifting and extensive bending and stooping"). And she ignores the district court's extensive analysis agreeing with the ALJ's assessment of the relative insubstantiality of respondent's impairments. Pet. App. 28a-31a; Gov't Br. 11. There is thus particular reason for confidence here that respondent's ability to do her former work manifests capacity to work generally.

2. Respondent's assertion that the Commissioner's construction yields absurd results, moreover, rests on the unrealistic scenario of actual (not hypothetical) claimants who are physically and mentally capable of doing only their past work, and no other job in the national economy. 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 construction and the absence of any evidence that it has disqualified real-life claimants who meet the hypothetical profile respondent posits. Congress was not required to indulge such a remote hypothetical, or to fashion the standards for an enormous program with millions of claims a year to accommodate it. Indeed, explaining Congress's decision to make the claimant's age irrelevant when determining 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 "significant 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 presumably understood that many people might 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 greater access to benefits than everyone else.

Respondent's position would also undermine the efficiency of disability determinations, introducing a potentially complex inquiry-whether the past work the claimant is medically capable of performing exists in significant numbers in the national economy-into step four. Because the evaluation 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 intention that Section 423(d)(2)(A) reemphasize the predominance of medical over other (economic or vocational) factors. See Gov't Br. 38-39. "[T]o consider the presence of jobs in [significant numbers in] the national economy at step 4 * * * would risk transforming a predominantly medical determination into one with practical availability of employment at its center and would thus undercut a fundamental policy of the Act." Garcia, 46 F.3d at 559.9

Finally, the Commissioner's longstanding construction is consistent with Congress's purpose to establish an administrable 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 of job they did in the past"; it "does not provide for people who lost their job." Pet. App. 28a. Private disability insurance policies-to which Congress often looked in drafting disability standards, e.g., H.R. Rep. No. 213, supra, at 89 (borrowing duration requirement); S. Rep. No. 1987, supra, at 20 (waiver of premium)-typically also require that it be the claimant's impairment that prevents performance of previous work.10

For all these reasons, respondent is simply wrong in asserting that the Commissioner's longstanding implementation of the disability insurance program should be rejected as unrealistic or absurd. To the contrary, that construction is supported by 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 more expansive coverage. But she has not demonstrated that the Act "demand[s] that the Agency make" her preference "an overriding interpretive principle." Walton, 535 U.S. at 225.

For the foregoing reasons and those stated in the government's opening brief, it is respectfully submitted that the judgment of the court of appeals should be reversed.

Solicitor General


1 Respondent quotes (Br. 19) the 1960 Preliminary Report on Administration of Social Security Disability Insurance Program, 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." Ibid. The Commissioner's 1961 regulations, and the enactment of Section 423(d)(2)(A) in 1967, were the answer to that suggestion. See pp. __-__, infra. The legislative history of the 1967 amendments (including that cited above) makes it clear that Congress sought to overrule court decisions that awarded benefits to claimants who were physically capable of working but who would not be "considered for" jobs "by reason of hiring practices." S. Rep. No. 744, supra, at 49; H.R. Rep. No. 544, supra, at 30. Respondent also fails to quote the 1960 Report's acknowledgment (at 19) of the Commissioner's rule that "[l]ack of ability to engage in a job is essential" to disability determinations, but "[l]ack of ability to get a job * * * is immaterial."

2 Respondent concedes (Br. 36-37) that Pass and Chater sustain the Commissioner's position. See Gov't Br. 31, 41-42; Pet. 19-20. Respondent nonetheless attempts to distinguish Quang Van Han by referring (Br. 34) to the opinion's passing remark that a claimant "may" be able to challenge a particular application of the Commissioner's rules under certain circumstances. But Quang Van Han unambiguously rejected respondent's construction; it held that, while "the Act requires 'other' work to exist in the United States, it places no such limitation on 'previous' work." 882 F.2d at 1457; ibid. ("limitations governing other work do not modify previous work"); Pet. 18; Gov't Br. 30. Respondent's attempted distinction of Garcia (Br. 36-37) similarly ignores that court's holding-that the Act's text "easily bears" the Commissioner's interpretation, Garcia, 46 F.3d at 558-559-unpersuasively urging that an alternative holding impeaches that unequivocal conclusion. Finally, while respondent quotes (Br. 37-38) dictum from Kolman v. Sullivan, 925 F.2d 212 (7th Cir. 1991), Kolman did not rely on (or evaluate) the text of the Act; instead, it invoked a (mistaken) construction of the regulations. See Gov't Br. 31-32 n.8. To the extent that Kolman's dictum echoes respondent's policy concern, Kolman never suggests that the remote hypothetical it cited (the ice cutter whose job is rendered obsolete by refrigerators and who can do no other work) is realistic, or that it could justify overturning a decades-old administrative construction recognized and ratified by Congress.

3 Although respondent complains (Br. 27) that two of the three examples offered in the government's opening brief "definitively exclude[] any possibility that" the first "item * * * could ever constitute a related subcategory of the [later] descriptive phrase," that is precisely the point. Sometimes, as in Mandel Brothers and here, specifically listed items (such as "previous work" or "tiger") fall within the first part of a general description 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).

4 Contrary to respondent's assertion (Br. 31-33), May v. Gardner cannot 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. For one thing, 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 v. Gardner was decided. That decision, moreover, nowhere suggests that work in the claimant's occupation-mine dispatcher-was available outside the local area where the claimant worked. Rather, it required a showing that the claimant was "disabled" from doing that previous occupation, i.e., that the claimant was not physically capable of performing it. Respondent, moreover, makes no effort to distinguish Massey v. Celebrezze, supra, or Reyes Robles v. Finch, 409 F.2d 84, 86 & n.1 (1st Cir. 1969), quoted at Gov't Br. 19 & n.6.

5 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 significant 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 an award of disability benefits whether or not that foreign job has "a counterpart in the U.S. economy." SSR 82-40 (1982 WL 31388, at *2). Respondent's reference (at 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 the claimant's assertions regarding the demands of her past work; or it could be used to determine whether the claimant can perform that past work as it is currently performed in the United States, even if the claimant lacks the capacity to engage in that work as it was performed in the foreign country. See SSR 82-62 (1982 WL 31386).

6 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 performed more than 15 years ago. The 15-year cut-off establishes a limited, bright-line presumption that makes claims resolution easier by eliminating the need to examine every job the claimant held during her potentially long life. SSR 82-62 (1982 WL 31386, at *2). As such, it represents a permissible exercise of the Commissioner's authority to "fill in" necessary details related to program administration. Walton, 535 U.S. at 225. Indeed, the Commissioner's regulations regularly employ presumptions to promote efficient and uniform program administration. 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 chosen to establish a bright-line, 15-year rule to promote uniformity and efficiency does not mean that she must also adopt constructions that will have the opposite effect.

7 The fact that "previous work" is concrete and based on the claimant's actual experience also explains the differential treatment of "previous work" and "other * * * work" in Section 423(d)(2)(A). It makes sense that Congress would have found it appropriate to bound the "other * * * work" inquiry-an expansive category that includes myriad occupations the claimant has never performed-with the requirement that the jobs "exist in the national economy" in significant numbers, but not found it necessary to impose that limit on the concrete category of "previous work" that the claimant has actually performed.

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

9 Respondent's claim that "the second step of the sequential evaluation * * * satisfies the Congressional intention that medical factors assume primacy," Resp. Br. 23, is without merit. The second step merely "identif[ies] 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). Congress's goal in enacting Section 423(d)(2)(A) was to emphasize "the predominant importance of medical factors" over economic considerations. S. Rep. No. 744, supra, at 48. Respondent presumes that Section 423(d)(2)(A) does precisely the opposite, reintroducing job-market considerations into the otherwise clear fourth step of the sequential evaluation process.

10 See, e.g., Berkshire/Guardian Sample Disability Policy 4 <http: //www.guardiandibrokerage.com/pdf/1100-specpolicy.pdf> (total disability "means that, because of sickness or injury, you are not able to perform the material and substantial duties of your occupation and you are not at work in any occupation"); see also About Disability Insurance, <http:// www.about-disability-insurance.com/totaldisability.html> (explaining that, under "own-occupation," "income replacement," and "gainful occupation" disability policies, the 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").

Merits Stage Reply Brief
Updated October 21, 2014