No. 00-1937 

In the Supreme Court of the United States 

LARRY G. MASSANARI, 
ACTING COMMISSIONER OF SOCIAL SECURITY, 
PETITIONER 

v. 

CLEVELAND B. WALTON 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

REPLY BRIEF FOR THE PETITIONER 

THEODORE B. OLSON 

Solicitor General 

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

TABLE OF AUTHORITIES 

Cases: Page 

Alexander v. Richardson, 451 F.2d 1185 (10th Cir. 
1971), cert. denied, 407 U.S. 911 (1972) ............................. 
2, 8 

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

Inc., 467 U.S. 837 (1984) ....................................................... 

5 

Cieutat v. Bowen, 824 F.2d 348 (5th Cir. 1987) ................ 
9 

Newton v. Chater, 92 F.3d 688 (8th Cir. 1996) .................. 
2, 3 

Titus v. Sullivan, 4 F.3d 590 (8th Cir. 1993) .................... 
2 

Walker v. Secretary of Health & Human Servs., 
943 F.2d 1257 (10th Cir. 1991) ............................................. 
2 

Statutes: 

Social Security Act, 42 U.S.C. 301 et seq. ............................. 

1 

Tit. II, 42 U.S.C. 401 et seq. ................................................. 
6, 7 

42 U.S.C. 422(c)(2) ............................................................. 
9 

42 U.S.C. 423(c)(2)(A) ....................................................... 
6, 7 

42 U.S.C. 423(d)(1)(A) ...................................................... 
4, 7 

42 U.S.C. 423(d)(2)(A) ...................................................... 
4 

42 U.S.C. 423(f)(1) ............................................................. 
3 

Tit. XVI, 42 U.S.C. 1381 et seq. ........................................... 
6, 7 

Miscellaneous: 

65 Fed. Reg. 42,774 (2000) ....................................................... 

5 

H.R. Rep. No. 231, 92d Cong., 1st Sess. (1971) ................... 
8 

S. Rep. No. 404, 89th Cong., 1st Sess. (1965) ....................... 
6 

Social Security Ruling 73-7c (Cum. Bull. 1973) ................... 5 

(I) 

In the Supreme Court of the United States 

No. 00-1937 
LARRY G. MASSANARI, 
ACTING COMMISSIONER OF SOCIAL SECURITY, 
PETITIONER 

v. 
CLEVELAND B. WALTON 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

REPLY BRIEF FOR THE PETITIONER 

Respondent does not dispute that the decision below 
squarely conflicts with decisions of the Eighth and Tenth 
Circuits on the first question presented. Nor does respon- 
dent seriously dispute the decision’s enormous fiscal and pro- 
grammatic consequences for Social Security. Instead, re- 
spondent devotes most of his brief to defending the court of 
appeals’ decision on the merits. That defense, however, is 
unpersuasive, does not undermine the decision’s significance, 
and does not decrease the need for this Court’s review. 

A. 1. 

The first question presented is whether a claimant 

is entitled to disability benefits under the Social Security Act 
(Act), 42 U.S.C. 301 et seq., if, at the time his claim for bene- 
fits is adjudicated, it is known that his disability (i.e., the 
inability to engage in substantial gainful activity on account 
of a medical impairment) neither lasted nor can be expected 
to last for 12 consecutive months. Invalidating the Commis- 
sioner’s longstanding construction of the Act, the court of 
appeals held that the Act does not require—and indeed pre- 
cludes the Commissioner from requiring—that the disability 
last or be expected to last at least 12 months. Pet. App. 7a- 

(1) 

2 

8a, 10a-11a. Instead, the court held, only the impairment 
that gives rise to the inability to work need last or be 
expected to last for 12 months. Id. at 8a, 11a. 

As the petition explains (Pet. 15-17), the Tenth and 
Eighth Circuits have reached precisely the opposite con- 
clusion. In Alexander v. Richardson, 451 F.2d 1185 (1971), 
cert. denied, 407 U.S. 911 (1972), the Tenth Circuit held that 
an individual is not entitled to disability benefits unless both 
the inability to engage in substantial gainful activity and the 
impairment giving rise to that inability last 12 months. Id. at 
1186 (“Inability to engage in any gainful activity and the 
impairment which causes it cannot be separated. The two 
components of disability must exist at the same time.”). 
Even where an impairment is permanent, that court held, 
the claimant “is not entitled to benefits” if “he is able to 
engage in any gainful activities within a year from his 
injury.” Ibid. The Eighth Circuit followed Alexander in 
Titus v. Sullivan, 4 F.3d 590, 594-595 (1993). 

Seeking to minimize the significance of that conflict, re- 
spondent relies (Br. in Opp. 8-9) on Newton v. Chater, 92 
F.3d 688, 694 (8th Cir. 1996), and Walker v. Secretary of 
Health & Human Services, 943 F.2d 1257, 1260 (10th Cir. 
1991). Neither Newton nor Walker, however, addressed 
whether the disability or merely the underlying impairment 
must last or be expected to last 12 months; and neither 
purported to overrule Alexander or Titus. Instead, Newton 
and Chater addressed the validity of the Secretary’s trial 
work regulations, which are at issue in the second question 
presented. See pp. 8-10, infra; Pet. 23-26. Indeed, in both 
cases, the applicant’s disability—his inability to work on 
account of his impairment—actually lasted 12 months, as 
respondent concedes. Br. in Opp. 8 (in both cases “the claim- 
ant’s return to work actually occurred more than 12 months 
after onset”); see Walker, 943 F.2d at 1258; Newton, 92 F.3d 
at 690. Thus, neither case dealt with whether a claimant is 
entitled to benefits where, as here, he returns to work within 

3 

12 months of the alleged disability’s onset and before his 
claim is adjudicated. In fact, Newton expressly recognized 
(contrary to the decision below) that the disability, and not 
merely the underlying medical impairment, must last 12 
months. The payment of benefits, the court stated, is 
“conditioned * * * upon the passage of five consecutive 
months of [a] disability lasting twelve continuous months.” 
Newton, 92 F.3d at 694 (emphasis added). 

2. The court of appeals’ interpretation of the Act not only 
creates a circuit conflict, but also would, if allowed to stand, 
have enormous fiscal and administrative consequences. As 
the petition explains (at 18), the Commissioner’s actuaries 
estimate that the cost of complying with the Fourth Circuit’s 
decision would be approximately $9.8 billion over the next 10 
years. By dramatically relaxing a core requirement for 
showing disability, moreover, the court of appeals’ decision 
invites a substantial increase in the number of applications 
the Commissioner must process, which already exceed 2 
million annually.1 Although respondent complains that the 
financial projections are based on the assumption that 
beneficiaries would receive benefits indefinitely, that is not 
true; the estimates account for the average duration of a 
benefits award. Besides, an assumption that beneficiaries 
would receive benefits indefinitely is hardly unjustified. The 
Commissioner’s authority to terminate benefits for “medical 
improvement” under 42 U.S.C. 423(f )(1) is greatly circum- 
scribed by the court of appeals’ decision. Where an individ- 
ual already could work notwithstanding his impairment by 

1 The Commissioner’s estimates may prove conservative because they 
do not attempt to account for the increase in applications that would be 
caused by the court of appeals’ decision. See Pet. 18 n.5. Respondent 
maintains that claimants will not decide whether to apply for benefits 
based on a court decision. Br. in Opp. 14. But the number of applications 
the Social Security Administration (SSA) receives is directly linked to the 
number of people who qualify for benefits. By relaxing the requirements 
for disability benefits, the court of appeals necessarily increased the 
number of applications SSA must process. 

4 

the time the award is made, it would often prove difficult if 
not impossible to show further “medical improvement” to 
justify termination. See Pet. 19. 

3. Unable to contest the existence of a circuit conflict or 
the fiscal significance of the decision below, respondent pri- 
marily argues that the decision is correct and that the 
Eighth and Tenth Circuits’ contrary decisions in Titus and 
Alexander are not. The latter decisions, respondent asserts, 
“blur[] the distinction between the duration requirement and 
the severity requirement.” Br. in Opp. 7. Echoing the anal- 
ysis of the court of appeals, respondent argues that the 
phrase “which has lasted or can be expected to last for a 
continuous period of not less than 12 months” in 42 U.S.C. 
423(d)(1)(A) must modify the word “impairment,” not the 
phrase “inability to engage in any substantial gainful activ- 
ity.” Br. in Opp. 4; see also Pet. App. 7a-8a, 10a-11a. 

But 

that grammatical parsing of the statute hardly demonstrates 
Alexander and Titus to be incorrect, or the Commissioner’s 
construction to be impermissible. To the contrary, respon- 
dent’s construction ignores the fact that the definition of 
“disability” requires not only an underlying medical impair- 
ment that has lasted or can be expected to last for at least 12 
months, but also an inability to engage in substantial gainful 
activity “by reason of ” that impairment. 42 U.S.C. 
423(d)(1)(A). The inability to work and the impairment 
giving rise to it thus are directly linked; it follows logically 
that their durations are linked as well. Indeed, when Con- 
gress amended the definition of disability by adding 42 
U.S.C. 423(d)(2)(A) in 1967, it declared that an individual is 
“under a disability” and entitled to benefits “only if ” his 
impairment is “of such severity” that it precludes all sub- 
stantial gainful activity in the national economy. Respon- 
dent offers no reason why that severity requirement, which 

5 

is a condition precedent to the finding of disability, does not 
apply in each of the required 12 months of impairment.2 

The Commissioner’s construction, moreover, is fully con- 
sistent with respondent’s grammatical parsing. After all, if 
one accepts that the phrase “which has lasted or can be 
expected to last for a continuous period of not less than 12 
months” describes only the duration of the impairment, then 
the statute is at most silent or ambiguous regarding the 
duration of the inability to engage in substantial gainful 
activity that the impairment must produce. Thus, Congress 
has left a gap for the Commissioner to fill, and the Com- 
missioner has reasonably determined that the disability 
should be durationally coextensive with the impairment. See 
65 Fed. Reg. 42,774 (2000); Social Security Ruling (S.S.R.) 
73-7c (Cum. Bull. 1973). That decision must be upheld under 
Chevron U.S.A. Inc. v. Natural Resources Defense Council, 
Inc., 467 U.S. 837 (1984), so long as it is permissible, as 
respondent concedes.3 Here, the Commissioner’s con- 

2 Respondent cites regulations and legislative history that distinguish 
between the “severity requirement” and the “duration requirement.” Br. 
in Opp. 7. There is, of course, a distinction between how severe an impair- 
ment must be (sufficiently severe to preclude all substantial gainful activ- 
ity) and how long the impairment and resulting inability to work must last. 
The materials respondent cites are fully consistent with the Commis- 
sioner’s view that both the impairment and the resulting disability must 
last at least 12 months. 

3 Respondent does not dispute that, if the Commissioner’s construc- 
tion is permissible, it must be upheld under Chevron; he merely disputes 
whether that construction is permissible. See Br. in Opp. 29-30. At the 
same time, however, respondent suggests that the Commissioner’s cur- 
rent regulations are irrelevant because they were promulgated after the 
Administrative Law Judge resolved his claim. Br. in Opp. 5 n.1, 30 n.8. 
Respondent nowhere explains why that should make a difference where, 
as here, these new regulations—which are entitled to deference no matter 
when they were promulgated—merely restate the Commissioner’s long- 
standing interpretation, see 65 Fed. Reg. at 42,774 (revisions “ do not 
represent a change” and are “consistent with SSR 82-52”), and that inter- 
pretation is embodied in the Commissioner’s final decision in the adjudica- 
tion of respondent’s case. 

6 

struction is clearly permissible: Nothing in the Act declares 
that there is no minimum duration requirement for the 
inability to work, and the Act’s legislative history shows that 
Congress specifically intended to require that the dis- 
ability—which is defined as the inability to work on account 
of the impairment—last or be expected to last at least 12 
consecutive months. S. Rep. No. 404, 89th Cong., 1st Sess. 
99 (1965) (benefits payable only if the claimant “has been or 
can be expected to be totally disabled throughout a continu- 
ous period of 12 calendar months” (emphasis added)); ibid. 
(benefits payable where the “disability has existed for 12 
calendar months” or “the worker’s disability will continue 
for a total of at least 12 calendar months” (emphasis added)). 
See also Pet. 21-22. 

For similar reasons, respondent’s reading contravenes 
Congress’s intent because it converts Social Security into 
precisely the sort of short-term disability program Congress 
sought to avoid. See Pet. 21. Respondent attempts to an- 
swer that point by relying on the five-month waiting period 
under 42 U.S.C. 423(c)(2)(A). Br. in Opp. 11, 17-18. But Sec- 
tion 423(c)(2)(A) does not help respondent. That waiting 
period applies only to Title II’s disability insurance program, 
and not to Title XVI’s Supplemental Security Income (SSI) 
program, which uses the same definition of disability. See 
Pet. 5, 19. Consequently, under the court of appeals’ deci- 
sion, the Commissioner apparently must pay SSI benefits if 
an impairment of indefinite duration causes an inability to 
work of as little as a month. Congress could not have in- 
tended such a result.4 Further, Congress clearly concluded 

4 Respondent suggests that the SSI program should not require an 
inability to work of any duration, citing regulations that permit disabled 
individuals to receive SSI benefits despite working. Br. in Opp. 12. Those 
regulations, however, say nothing about a waiting period, and apply only 
after the applicant has met the definition of “disability” through a 12- 
month inability to work, or a determination that the individual can be 
expected to be unable to work for 12 months. The regulations nowhere 

7 

in 1965, when it enacted the current definition of disability in 
42 U.S.C. 423(d)(1)(A), that even a six-month inability to 
work was the sort of short-term disability that should not 
qualify for benefits. See Pet. 21. Respondent’s reliance on 
the five-month waiting period as sufficient protection for the 
program is inconsistent with that judgment. 

In any event, respondent misconstrues the purpose of the 
five-month waiting period. Section 423(c)(2)(A) does not 
address whether an individual suffers from a disability of 
sufficient severity or duration to entitle him to benefits. 
Instead, it addresses the time at which payments must begin 
for a disability that qualifies under the Act. The waiting 
period is a cost-saving device predicated on the principle 
that, even with respect to a covered disability of 12 months 
or more, workers ought to rely on a source of protection 
other than Social Security disability insurance during the 
first five months of disability. Indeed, when Congress short- 
ened the waiting period from six months to five in 1972, it 
recognized that that change would not alter the requirement 
that the disability—the inability to work on account of the 
medical impairment—last or be expected to last for at least 
12 months. As the House Report explained, notwithstanding 
the one-month decrease in the waiting period, “[n]o benefit is 
payable * * * unless the disability is expected to last (or 
has lasted) at least 12 consecutive months or to result in 

suggest that an individual may qualify for SSI benefits on account of a 
disability even if he returned to work before the 12-month period lapsed 
and before his claim was adjudicated. Respondent’s further contention 
that Title XVI benefits are not at issue here, id. at 12 n.3, is also incorrect. 
Respondent sought benefits under both Title II and Title XVI, Pet. App. 
39a, 52a; Resp. C.A. Br. 1, and the court of appeals understood both Title 
II and Title XVI benefits to be at issue, see Pet. App. 2a. More important, 
even if Title XVI benefits were not at issue in this case, respondent’s and 
the court of appeals’ construction of “disability” applies with equal force to 
that program, since Title II and Title XVI use the same definition of 
disability. 

8 

death.” H.R. Rep. No. 231, 92d Cong., 1st Sess. 56 (1971) 
(emphasis added).5 

B. Respondent devotes the bulk of his brief to the second 
question presented, see Br. in Opp. 8-10, 15-31, which is 
whether he was entitled to a trial work period. As the 
petition concedes (Pet. 26 n.10), the Commissioner’s trial 
work regulations have not fared well in the courts of appeals. 
Seizing on that concession, respondent urges that review is 
unnecessary because the courts of appeals are in substantial 
agreement on the second question presented. 

Respondent’s contention, however, in no way undermines 
the need for review in this case because there concededly is a 
circuit conflict on the first question presented, which has 
enormous fiscal implications for the Social Security disability 
program. Moreover, the second question is closely interre- 
lated with the first and the two warrant resolution together. 
Indeed, in this case, the court of appeals’ resolution of the 
second question was a product of its decision on the first. As 
that court acknowledged, its conclusion that respondent was 
entitled to a trial work period was “conclusively settled” by 
its earlier conclusion that respondent was “disabled” and 
entitled to benefits notwithstanding his return to work 
within 12 months of the alleged disability’s onset. Pet. App. 
9a; Pet. 23 & n.8. That follows as a matter of logic as well. 
Under the Act, the right to a trial work period attaches only 
if the claimant is entitled to benefits. Pet. App. 9a. If the 

5 Respondent suggests that his interpretation “eliminate[s] short- 
term, transient disabilities” because “[s]ome impairments” will “never” 
prevent work while “other impairments” would “never” be expected to 
last 12 months. Br. in Opp. 11. But respondent ignores the large number 
of people who have long-term impairments that cause them to be unable to 
work for periods of less than twelve months. See, e.g., Alexander, 451 
F.2d at 1186 (example of individual who loses a hand). Indeed, many 
extremely common ailments (back injuries, etc.) may last a lifetime, but 
are debilitating only for short or intermittent periods. Under respon- 
dent’s construction, such short-term disabilities would be compensable 
merely because the underlying impairment persists indefinitely. 

9 

individual’s return to work within 12 months of the alleged 
disability’s onset prevents him from being entitled to bene- 
fits, it necessarily prevents him from being entitled to a trial 
work period as well.6 For that reason, respondent’s reliance 
(Br. in Opp. 18-19) on the Eighth and Tenth Circuits’ deci- 
sions in Walker and Newton is misplaced, even with respect 
to the trial work issue. In each of those cases, the individual 
was unable to work for a period of 12 full months. See pp. 2- 
3, supra. They do not hold that an individual like respon- 
dent, who returned to substantial gainful activity in less than 
12 months and before his claim was adjudicated, is “entitled” 
to benefits and thus to a trial work period as well. 

In any event, respondent’s defense of the court of appeals’ 
decision on this issue is unpersuasive. Respondent’s primary 
contention is that, under the Commissioner’s rule, whether 
or not a particular applicant is entitled to benefits may 
depend in part on when the claim is adjudicated. Br. in Opp. 

28. But that is a necessary consequence of Congress’s 
decision to accommodate two distinct goals: (1) that the dis- 
ability programs should not result in the payment of benefits 
in cases of short-term, temporary disability, and (2) that 
claimants whose impairments will prevent them from engag- 
ing in substantial gainful activity for at least a year should 
not be required to wait a full year before they can receive 

6 The court of appeals’ decision on the second question would conflict 
with Cieutat v. Bowen, 824 F.2d 348 (5th Cir. 1987), even if the issues were 
wholly independent of each other. See Pet. 23 n.8. Although respondent 
characterizes Cieutat as holding only that trial work could not occur 
before the application for benefits was filed, Br. in Opp. 29, that is 
incorrect. The Fifth Circuit held that, under the Act, services rendered 
during a period of trial work shall be deemed not to have been performed 
by an individual “in determining whether his disability”—once established 
—“has ceased.” 42 U.S. 422(c)(2) (emphasis added); 824 F.2d at 358-359. 
The Fifth Circuit thus emphasized that work done “after the alleged onset 
of disability” can be used to determine whether the claimant “ever became 
disabled” or “established an entitlement to benefits” in the first place. 824 
F.2d at 358-359. 

10 

benefits. Congress sought to meet those goals by requiring 
that the disability has lasted or can be expected to last for at 
least 12 months. The Commissioner has reasonably con- 
strued the Act as requiring the adjudicator to resolve that 
issue based on the evidence available at the time of the dis- 
ability determination. Where the disability determination 
takes place within 12 months of the alleged disability’s onset, 
and the evidence shows that the impairment currently pre- 
vents substantial gainful activity, the adjudicator necessarily 
must make a prediction about the disability’s expected 
duration. That prediction in some instances may prove 
wrong. But where the evidence shows, at the time of the 
adjudication, that the individual has already returned to 
substantial gainful activity, and did so within 12 months of 
the alleged disability’s onset, there is no reason why the 
adjudicator should be precluded from relying on that fact as 
conclusive proof that the disability did not last (and thus 
cannot be expected to last) 12 months. Indeed, such evi- 
dence is routinely considered in other legal contexts. For 
example, if a plaintiff suing in tort for lost prospective wages 
returned to work before trial, the jury could take such post- 
injury conduct into account even though that evidence would 
not have been available had the trial taken place earlier. 
Similarly, there is no reason why the Commissioner should 
be barred from taking an applicant’s return to work into 
account when determining whether the applicant is or was 
under a disability that has lasted or can be expected to last 
12 months. 

* * * * * 

For the reasons stated above, and in the petition for a writ 
of certiorari, it is respectfully submitted that the petition 
should be granted. 

THEODORE B. OLSON 

Solicitor General 

JULY 2001