1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 argument v.

IN THE SUPREME COURT OF THE UNITED STATES
- - - - - - - - - - - - - - - -X
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Petitioner :
:
:
:
: :
No. 00-1937

CLEVELAND B. WALTON.

- - - - - - - - - - - - - - - -X
Washington, D.C.
Wednesday, January 16, 2002
The above-entitled matter came on for oral

before the Supreme Court of the United States at

11:06 a.m.
APPEARANCES:
JEFFREY A. LAMKEN, ESQ., Assistant to the Solicitor
General, Department of Justice, Washington, D.C.; on
behalf of the Petitioner.
KATHRYN L. PRYOR, ESQ., Richmond, Virginia; on behalf of
the Respondent.

1 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORAL ARGUMENT OF

C O N T E N T S
PAGE

JEFFREY A. LAMKEN, ESQ.
On behalf of the Petitioner KATHRYN L. PRYOR, ESQ.
On behalf of the Respondent REBUTTAL ARGUMENT OF
JEFFREY A. LAMKEN, ESQ.
On behalf of the Petitioner 52
26
3

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you get MR.

P R O C E E D I N G S
(11:06 a.m.)
CHIEF JUSTICE REHNQUIST: We'll hear argument

next in No. 00-1937, Jo Anne Barnhart v. Cleveland Walton.
Mr. Lamken.
ORAL ARGUMENT OF JEFFREY A. LAMKEN
ON BEHALF OF THE PETITIONER
LAMKEN: Mr. Chief Justice, and may it

please the Court:
Congress -Congress designed the Social

Security disability program to provide benefits to workers
who suffered from long-term were, in severe effect, forced disabilities, individuals who
retirement by the a

into premature Consistent with

impairment.

program's

origin --
QUESTION: Just a moment, Mr. Lamken.
Do The not talk until
in

Spectators are admonished. out of the courtroom.

Court remains

session.
Go ahead.
MR. LAMKEN: Consistent with the program's
has for 45

origin, purpose, years from

and text,

the Commissioner

the program's inception, in

adjudicating tens

of millions of claims, and throughout repeated amendments,
adhered to a single and consistent, reasonable

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construction disabled, a

of

the

definition of have

disability.

To be
that has
12

claimant must be expected to disabling level

an impairment

lasted or can months at a

last at 12 of

-- at least

severity; that

is, the
for

impairment must preclude substantial gainful activity the 12 months during which it must last.
QUESTION: Well, now, presumably though, as

I

understand it, the Commissioner could evaluate a claim and
start benefits in less than 12 months.
MR. LAMKEN: that's because the Correct, Your Honor. the That's
-to

statute allows

Commissioner

award benefits if the

-- if the disabling

impairment can

be expected to last 12 months. QUESTION: work during

So, for purposes --

And can disregard possibly periods of
if the commission is satisfied

that period

that this is going to be a permanent impairment.
MR. LAMKEN: Yes. If the work does not evidence
For

an ability to engage in substantial gainful activity.

example, the Commissioner has what are called unsuccessful
work attempt ability to may regulations. engage in If they do not evidence an
they
of the
gainful

substantial gainful activity, and treated to engage as in not evidence substantial

be disregarded

individual's ability activity.

Under the court of appeals' view, however --

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 benefits.

QUESTION: your view on the

That seems

sort of inconsistent with
periods

second question that trial work

shouldn't begin until the end of the 12 months.
MR. LAMKEN: Your Honor, no. Our view is not

that the trial work period does not begin until the end of
12 months. Our view is that the trial work period only

begins if the -- if the claimant actually becomes entitled
to benefits trial work to to at some point, period begins If and that's when the the true because claimant the

becomes

entitled entitled period.

benefits. benefits,

claimant receives

never becomes
a trial work

he never

QUESTION: language of

What

--

what

provision

in

the

the statute says that you can't start a trial

work period until the end of 12 months?
MR. LAMKEN: Again, it's not our position that

you can't start a work period -- a trial work period until
the end of 12 months.
QUESTION: have started.
MR. LAMKEN: And we Right, unless they are entitled to
on 422(c)(3), which
Well, you say unless the benefits

would be relying

appears on writ of

page 63a of the And it

appendix to the

petition for
of trial

certiorari.

says that a period

work for any individual shall begin --

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QUESTION:

Just

a moment, Mr. Lamken.

Exactly

where on 63a are you reading?
MR. LAMKEN: I'm sorry. It's at the bottom

where it's numbered 3.
QUESTION: MR. LAMKEN: Yes.
And it says, a period of trial work

individual shall begin with the month in which he
If the

becomes entitled to disability insurance benefits. individual never becomes entitled benefits, the individual

to insurance disability
as a matter of

also cannot,

logic, become entitled to a trial work period.
And that is also consistent with The trial considering the -with

trial work period does. the Commissioner from

work period
-from

treating work as evidence that The statute in word ceased.

the disability has ceased.
2 uses the

the preceding paragraph number That means that if the

individual isn't
can be no

actually already trial It's -- there is only there

entitled to no purpose for

benefits, there in the trial whether

work period.
or not the

determining

disability has ceased.
QUESTION: other side Of course, the difference is the
he is

says that he becomes

entitled not when

adjudicated to be entitled, but

he becomes entitled when,
-- the

in fact, all of the conditions exist for which the

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benefits are payable.
MR. LAMKEN: QUESTION: MR. the individual Yes, Your Honor.
Why aren't they right about that?
Because the statute provides that
to benefits if he has a

LAMKEN: is

entitled

disability which lasted 12 months. to the time of

can be expected to last 12 months or has
That's most naturally read as referring
the adjudication. In other words, when
met, you're
as
as

statutes say if

the following conditions are

entitled to something and they this statute does, they're

use the present tense, normally understood

requiring those adjudication.

conditions to be met

at the time

of the

QUESTION: statute itself says

Yes,

but

the

-- the

trial

work
by an

that any

services

rendered

individual during a not to have

period of trial work in

shall be deemed
whether his

been rendered

determining

disability has ceased.
MR. LAMKEN: disability has have a -- to have what individual perspective ceased. Right, in That means determining whether his
that for a person to

be entitled to a trial work

period, he must
not an
the
the

is called a disability, has of a the disability adjudicator is

and whether or determined at the time

from of

adjudication.

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QUESTION: I thought that as I a

But

I thought you took not take of law

the position
in your
to be an

you did matter

the position there had

adjudication. the way it

thought you said that works in

ordinarily that's
that the real

-- it

practice, but

point you were making was that if the individual went back
to work that in the prior to the adjudication and therefore showed

fact the disability disability, as

or the incapacity you see it, is not

and hence
going to

-- the

last, that that's it off.

the end of the matter.

That would cut

I didn't think you took as a theoretical matter a

position that there had to be an adjudication, merely that
there ordinarily would be one.
MR. described our that if the LAMKEN: I -I think Souter. you've precisely
The answer such is

position, Justice individual produces

evidence,

as by

returning to work successfully for the period of

2 years,

for example, in this case, and shows that he, in fact, was
not incapacitated, he can take was able to work, the adjudicator

that into account and decide that no, you're not
disability benefits, disability benefits, and if you were never
a

entitled to entitled to

you also do

not get

trial work period.
QUESTION: But -- but you would not allow him to

come in and say long before I came in for an adjudication,

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I was

in fact

disabled and

entitled to

benefits.

You

wouldn't allow him to say that.
MR. LAMKEN: No. We would not allow him to come
thought to
but
be

back and say -- and say, in effect, that I was be disabled for a period of 12

months reasonably that you can

mistakenly because the

statute requires

expected -- present tense.
Now, that is consistent with the way courts --
QUESTION: You're hanging an awful lot on that

-- on that can be expected I -- I must say.
MR. LAMKEN: contrary view Yes, Your Honor. -- creates But actually the
difficult

would make

a rather

type of adjudication --
QUESTION: MR. LAMKEN: foreign to the law.
QUESTION: You got to look back 6 months and
A difficult --
-- to make and one that's entirely

figure out whether 6 months ago he -- he could be expected
to --
MR. LAMKEN: Not merely that. You would have to

look back for the entire period covered by the application
and decide if any moment during that period it could have

been possible, reasonably but mistakenly thought, that his
disability would last 6 months. That type of

determination is entirely foreign to the law.

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And it's

also inconsistent with the

purpose of

be expected to last prong.

That exists precisely

because, as Justice O'Connor pointed out, the Commissioner
needs to goes by. be able to adjudicate claims before 12 months
the

And therefore

when the adjudicator -- when

Commissioner decides claims before 12 months have gone by,
you look at the can be expected to last prong.
QUESTION: present tense So, the real significance of the

is that it kind of gives an opportunity for

the application of a kind of best evidence rule.
MR. consistent with which says look at all come LAMKEN: Yes, yes, exactly. And that is

the -- the --

excuse me --

the statute,
you

that when

you're deciding

these claims,

of the evidence in of the that earlier

the file and you

try and
You don't
merely
a

up with all evidence at some

available evidence. is time recently you

disregard because mistake.

arriving

would

have made

And that is also -- I'm sorry.
Turning back to the question of disability, the

Commissioner's view

construction of the term disability in our
by the text of the act. The act

is supported

imposes --
QUESTION: At the time What kind this of deference was do we give
the

claim

evaluated,

regulations hadn't been adopted.

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MR. LAMKEN: QUESTION: Chevron?
MR. LAMKEN: QUESTION: MR. LAMKEN:

That's correct, Your Honor.
So, we're into Skidmore rather than

No, Your Honor.
No?
We believe that the Commissioner is

entitled to Chevron deference regardless of when the claim
was adjudicated. The purpose -- the reason this -- the decision Court
has

gives Chevron deference

is when the

the formality and uses the the administrator to use

procedures that Congress meant
when filling in gaps or when

explaining the meaning of the statute.

It does not matter

that, in fact, that the administrator, or in this case the
Commissioner, used adjudicated because those procedures we know after the claim was

that after

the thoroughness

consideration and using the notice and comment procedures,
the Commissioner came to the same conclusion, that in fact
the best reading of has the statute is to for 45 the years one that the

Commissioner

adhered

and through

repeated amendments to the statute.
QUESTION: The -- the court of appeals here said

that that simply wasn't consistent with the statute and it
struck me at the fairly that they had a very good argument just looking
are kind of -- reduced to to some
your

statute that you odd statutory

construction

justify

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position.
MR. LAMKEN: No, Your Honor. Actually we

believe that we have the far more reasonable understanding
of the statute and certainly the one that's more

consistent with Congress' intent. QUESTION: Well,

The statute --
that we

supposing we just say

look to the statute itself for what Congress' intent was?
MR. LAMKEN: statute.
QUESTION: MR. requirements. Right.
The statute imposes two
Focusing on the language of the

LAMKEN:

First, there must be an impairment.
Where do we find the statute in -- in

QUESTION: the --
MR. which

LAMKEN:

It's 69 --

423(d)(2)(A)

and (d)(1)(A)
of (d)(1)
petition

appear on pages

just the heading

appears on 69a -- and 70a of the appendix to the for a writ of certiorari.
QUESTION: MR. LAMKEN: Thank you.
Turning at

page 70, it establishes
The first is that
can be
Second,

two requirements that are interrelated. there must expected to the be an impairment, which last 12 months or must be one

has lasted or

result in death. that

impairment

precludes substantial
the

gainful activity, that is, it

must be so severe that

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individual economy.

cannot Given

engage

in any

work

in

the national
to provide
natural
that also the
an

Congress' repeated intent not

benefits for short-term to read those two

disabilities, it is most together so months, is

requirements must must last 12

impairment, impairment activity --

which which

preclude

substantial

gainful

QUESTION: posit that -that

Well, maybe. Congress didn't

You know, want But if to

once you
provide
-- if you
from
there.

compensation for short-term disability. had to that determine what language, I Congress' intent don't think

was purely you get

just

Disability means

an inability to gain -- to engage in any
activity. It doesn't
be, you
by

substantial -- substantial gainful say how long know, a that disability has to And

-- it could then it

week-long inability.

goes on,

reason of any mentally -or mental impairment

medically determinable physical
expected to result in
for

which can be

death or which has lasted 12 months. All it

or can be expected to last

requires is that and if

the impairment be a
even a week-

long-term impairment long inability to

that produces -you're

work, you're

technically

within the language of that -- of that provision.
MR. LAMKEN: Justice Scalia, that might be one

way of reading the statute, but it's not --

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QUESTION:

I think it's the only way to read the

I don't see how else you can read it.
MR. that LAMKEN: you read We the disagree, two Your Honor. We

requirements

together

sensibly so that they overlap. QUESTION: is you're It saying is

And in fact --
my understanding impairment, of given your
the

that

context of

the statute, means a

constantly, continuously

disabling impairment, and disabling means that you are not
equipped to engage -substantial in substantial -- whatever activity. So that SGA stands
the word

gainful

impairment means a disabling impairment.
MR. LAMKEN: the type of In effect, we're arguing, yes, that
referring to is
activity

impairment that Congress was

an impairment that because that's the in the statute.
QUESTION:

prevents substantial gainful type of impairment that

is referenced

And

if it

isn't --

if

it doesn't
isn't an

substantial gainful

activity,

then it

impairment within the meaning of the section.
MR. LAMKEN: It is not months. the type of That's impairment

must have for 12 That is a

correct, Your
our

correct characterization of our --

position.

I think if --
QUESTION: So, if you look just at the word

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impairment inability to

and

what

it

means,

you

get

back

to

the

do substantial

gainful employment

for that

interval of time.
MR. LAMKEN: Your Honor, one way you could --
The

you could put your emphasis Commissioner word severe

on the word impairment.

has traditionally placed the emphasis on the
in 423(d)(2)(A) or inability to engage in

substantial gainful activity in be one way of achieving And that the

(d)(1)(A), but that would
same result that the
the

Commissioner has. text of that --
QUESTION: the word which.

is actually supported by

the definition of impairment which makes it clear

I don't know

why you don't emphasize

MR. LAMKEN: QUESTION: the word which. I

Pardon?
don't know why you refer to both don't focus on
inability and

Does which

impairment or just one of them?
MR. LAMKEN: Justice Stevens, I think as a grammatical matter,

we have to

confess that the

word which

refers to the impairment because

one would not ordinarily

expect the substantial gainful activity to result in death
or the inability -- better in substantial still, the inability to engage
death. But

gainful activity to result in

focusing back --

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QUESTION:

One would not expect the inability to
result in death where it lasted
I don't know why.
Stevens, we'd be

be expected to last -- to

for a continuous period of 12 months? MR. LAMKEN: perfectly willing to but for purposes Well, Justice

accept that if that case, we --

were your view,
we have -for
which
the

of this

grammatical purposes, can be expected not the to

we believe result in to

that the phrase, death, engage in modifies

impairment

inability

substantial

gainful activity.
QUESTION: which can be expected. expected. So, you don't think it means both of
It just means one of which can be

You're willing to accept that anyway.
QUESTION: Where is the definition of

impairment?

I'm trying to find --
It's on page 71a, Justice Scalia,

MR. LAMKEN:

after the numeral 3 of the joint -- of the appendix to the
petition for writ of certiorari. It says: for purposes

of this subsection, a physical or mental impairment -- it's results from an

impairment is an
-- that
or

somewhat circular, we confess anatomical,

physiological,

psychological abnormality that is medically demonstrable.
That makes it clear that the impairment isn't
condition, but it

necessarily just the underlying medical says that

it's the -- an impairment that results from the

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anatomical, physiological,

or psychological

abnormality.

So, in a sense the impairment the medical condition but

can be viewed not merely as
of that condition
to

the result

such as in the case focus.
QUESTION:

of a mental impairment, inability

I'm not

sure

that's necessarily

a

very precise reading of that section. results

It says, impairment
or psychological
the

from anatomical, physiological, In other words, the

abnormalities. abnormalities.

results from is

MR. LAMKEN: the abnormalities.

The impairment is what results from
The impairment is what the

abnormalities produce.
QUESTION: MR. LAMKEN: Right.
So, if the condition is, in this

case schizophrenia, the impairment to focus, the

would be the inability
the impairment

inability to think clearly,

of the cognitive functions is another way of putting it.
Your Honor, what with the court of appeals' of an -- I believe that the problem
the two
that the

approach of severing -the fact

requirements

impairment

impairment must must be

last 12

months and

that the

impairment
is that it

one that is of

disabling severity --

does not -- it does not eliminate an ambiguity but creates
one. Even if we were to severe those two entirely and to

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say

that the only

the --

that only the

impairment must

last 12 disabling

months, it's clear that the impairment must be of
severity for some period of time because it

would be absurd to suggest you're entitled to benefits for
a minute or a second or actually, Justice Scalia, with all
due respect, in my view for the week that you suggest.
Given that there is an time for the severity, that it implied duration of some
must be severe enough to
period of
the period
with the

preclude substantial time, it is up to the

gainful activity for some Commissioner to choose is most consistent

which makes

the most sense,

statutory structure and Congress' intent.
There are other of the indicia of -- of the structure
was not
For

statute that make it

clear that Congress

contemplating short-term disabilities such as a week. example, the statute does not terminate benefits

just at
Benefits,
following

the moment when you are able to return to work. instead, continue that. for an additional 2 months

If the statute is, as the Commissioner supposes, a
disability statute, that makes sense because
to

long-term

those 2 months of additional transition back job.
If in fact the to work, to

payments give you a time get ready to work

to find a

statute

is, as

the

court of

appeals has construed it, a short-term

disability statute

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where benefits

are

payable when

you're out

only for

a

week, as Justice Scalia suggested, that would mean that an
individual who is chronic out of work asthma, for a week, because of a
and

condition like

anxiety, arthritis,

numerous ones to 2 months are

that last a year or more, would be entitled
of benefits plus the one It's hard to week for which they

briefly out.

believe that that was the

type of statute that Congress had envisioned.
In addition, that the repeated amendments repeated amendments to -- that view is supported by

to the the

statute that Congress
-definition of disability
45-year-

against the old

backdrop of the

Commissioner's now Years after

settled construction.

the Commissioner

first adopted her construction of 1965 Congress amended so, it did not merely

the statute in 1957, in
Congress did

the statute, and when leave in place

the Commissioner's
reiterated
were
and

by-then settled construction, instead Congress that construction it in -the committee the

reports that amendments

accompanying described

accompanying

the act

in precisely

the same terms

that the

Commissioner had through the regulations.
Congress, in fact, rejected a proposal
--

actually a bill -- from would have shortened to 12 months to 6

the House of Representatives that
of
for

the duration requirement instead months, and the stated reason

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rejecting that 6-month period was a disability -- it would
not be sufficient to preclude the payment of benefits for
disabilities. it Instead, to as the committee
that the

short-term reports

stated,

was necessary

require

individual be under a disability of longer than 6 the months.

for a period of more
-Congress meant to

Instead,

require

that

individual be

completely

and totally

disabled throughout a continuous period of 12 months.
Under the court of appeals --
QUESTION: Well, but actually not because you

can have these -- not the trial work, but the unsuccessful
work episodes. So, you're able to --
That -that is part It's of the

MR. LAMKEN: definition of substantial

gainful activity.

-- I'm

being somewhat imprecise when I say you're unable to work.
What you have to be able to do is engage in substantial
a brief

gainful activity,

and if you return

to work for

period of time, for less than 6 months generally under the
Commissioner's regulations, and then your impairment comes
back and prevents you continuing that, the Commissioner
of

will not treat that as your ability In fact, it's to go back to engage

evidence to obtain -- evidence in substantial

gainful activity.
because you tried
prevented you

evidence of the opposite

heroically, but your impairment

from successfully doing that.

So, it's clear that you're

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not able to engage in substantial gainful activity.
QUESTION: is directed So, the term substantial modifies --
the activity not the daily

to the length of

intensity of the activity.
MR. LAMKEN: modify the It -- it -- the substantiality does
the activity, but in terms of

intensity of

determining what kind to engage in that

of evidence shows that activity, the

you're able
has

Commissioner

legislative authority to determine whether work -- whether
certain types of work attempts evidence your ability And to

engage in substantial

gainful activity.

using that,

the Commissioner said there were

just certain things that

should not count, such as unsuccessful work attempts, work
attempts generally that are terminated within 6 months of

-- within 6 months' of when they begin.
QUESTION: the facts Mr. Lamken, this case is unusual on

because he came very close to making the 1-year

limit, and there is the anomaly that they -- the person is
approved for receiving disability benefits then will be able to go on for 2 months disability ceases. of his who own -- it's make it in month 8 and

past the time the

And yet, this person, through no fault
kind of haphazard, by and -who because maybe -it's chance the one
based on a

will

prediction, and

the one

maybe the

Social

Security office is backlogged.

What is the reason for the

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disparity in time of adjudication?
MR. LAMKEN: adjudications in within filed the filing in March and In fact, Your Honor, there were two

this case in a very short period of time
of benefits. April and in The benefit the -claim was
was an
over 30
In that
Mr.

there

initial adjudication on days after the April

May 18th, basically just application was filed.

adjudication, a licensed psychiatrist determined that

Walton was, in fact, able to engage in substantial gainful
activity and that He sought his impairment in was not severe June, and there enough.
-a

reconsiderations

decision was issued in August.
These are very not atypical. in short time frames, and these 90 types for of they are
are

Typically less than

claims the

processed

days

initial

adjudication.
Now, regrettably there will be all areas of law, of the where the occasions, as in
by the
because
would

outcome is affected And that the is true

timing

decision.

sometimes evidence

develops in

interim which

allow one person to prevail where, if the adjudication had
happened earlier, they would not have known about that

evidence and the result would have been different.
But the windfall and fact that some individuals benefits may get based a

become

entitled to

on an

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erroneous prediction of expectation does not mean that the
Commissioner is required to reach an erroneous result when
adjudicating a claim where he has actual evidence that the
individual is able to engage in substantial gainful

activity, as occurred here.
In this case there is evidence that the

individual was able to engage 2 solid years, and the

successfully in working for
not required to

Commissioner is

ignore that probative, indeed

dispositive evidence simply

because the Commissioner might have made a mistake had the
claim been adjudicated earlier.
QUESTION: things you said there would who Mr. Lamken, you said -- one of the

is if the Fourth Circuit

view prevailed,
of people
Fourth
Over a

be a large increase for disability

in the number benefits.

qualified

This

Circuit decision year?

has been

in effect

now what?

MR. LAMKEN: QUESTION:

Yes, Your Honor.
Is there any report of any swell in

the approved applications in the Fourth Circuit?
MR. LAMKEN: Your Honor, I have -- do not have

any information regarding that.
But the -- one of is it the major concerns about this
the number of people who

substantially increases

have disabilities because no longer do you have to have an

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impairment substantial

which

precludes

you

from

working

for

a

period of

time, but

merely an -When

a medical
the

condition that last number of medical

12 months. conditions that

one considers

persist for 12

months

that are capable of disabling

somebody for a short period
establishing

of time, it clearly would have the effect of

a short-term benefits program that Congress did not intend
to create.
In fact, we are advised that approximately 38
medical

percent of all Americans have condition which

an impairment -- a

is chronic in the sense that it will last
preventing them from working
And -- when construing the

12 months that is capable of for short periods of time.

definition of disability, it is

less plausible to believe

that Congress intended to pull in so many Americans and to
make all of their periods of absence of work on account of
conditions like asthma, angina, arthritis, bad backs, and

the like which -- and turn them into disabilities.
QUESTION: you want us If we want to say -and I take it
followed a
a

to say -- that

if the agency has

consistent and well-settled long course of is

interpretation policy over

time, it's entitled to or is

special deference,
case that
is what

that just Chevron, us this?

there some other best case authority

tells I'm --

What's the

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MR. LAMKEN:

Your Honor, we believe this is a --

a classic case of Chevron deference.
QUESTION: Is there another case other than
that

Chevron that -- that talks the administration has --
MR. LAMKEN: -- if you're -- if

about the length of time

Oh, well, that would be classically
what you're referring But even --
it's Skidmore or Chevron, and
to is Mead or

Skidmore deference, yes. QUESTION: nothing --
MR. LAMKEN: QUESTION: MR. So,

Well --
-- nothing else.
Those are the two standards of

LAMKEN:

deference with which I'm familiar, that we'd win under either one.
QUESTION: approval too.
MR. LAMKEN: QUESTION: technically, a same point.
MR. to the LAMKEN: Well, it I Yes.
Of

and in fact we believe

course, you

claim congressional

don't know whether that

falls in,

deference category, but it gets you to the

--

it

certainly adds
it so that
statute

agency's view and

it may make

only one

reasonable construction

of a

that's ambiguous.

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If there are

no further questions, I'd

like to

reserve the remainder of my time for rebuttal.
QUESTION: Mr. -- Ms. Pryor.

ORAL ARGUMENT OF KATHRYN L. PRYOR
ON BEHALF OF THE RESPONDENT
MS. PRYOR: the Court:
This case is the statutes, governed by the plain language of
Mr. Chief Justice, and may it please

the language of the

disability definition,
presented,

which is the primary focus and the

of the first issue

language of the trial work period and entitlement
of the second issue

statutes, which are the primary focus presented.

The plain language of the statutes and the early
legislative history demonstrate that from the inception of
the disability to program, Congress has balanced its desire

restrict payment of benefits to severe impairments with persons in to try to

only those with long-
to encourage

term

its intention work. ignores

disabled policy,

The Commissioner's
the work incentive

sharp contrast,

prong of Congress' careful balancing act, focusing only on
the desire to who restrict payment of benefits even clearly to disabling work with to those
they
and

suffer with to

impairments if great courage

manage

attempt

determination

and, despite continuing

severe impairment,

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within 12 months of the onset of their disability.
QUESTION: you pick? I Ms. Pryor, what -- what time limit do
the person has a disability

mean, suppose

that indeed is expected to last more than 12 months but it
only has caused him to black out and be incapable of

working for 1 minute.
MS. PRYOR: QUESTION: Your Honor, I believe that --
Does that 1-minute blackout entitle

him to come under the program?
MS. PRYOR: QUESTION: MS. PRYOR: shows that No, Your Honor.
All right. What about a week?
statute I believe

The entitlement

a person must be under a disability during the
period. enough So, to they must have a condition
gainful

5-month waiting which is severe

prevent substantial

activity.
QUESTION: During the time of --
MS. PRYOR: QUESTION: QUESTION: MS. PRYOR: QUESTION: continue.
MS. PRYOR: Yes, Your Honor. And if -- and if
During the 5-month waiting period.
During the 5-month.
During the entire 5 months --
Yes, Your Honor.
-the disability must -must
Excuse me. I just didn't hear you.

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it continues beyond that, then they would then be entitled
to benefits.
QUESTION: What establishes that? What

establishes the 5 months as -- as --
MS. PRYOR: The entitlement statute, Your Honor,

which is set out at 423(a) --
QUESTION: MS. PRYOR: 64a and 65a. And What -- what's the section? 423(a).

423(a), which is found at -- on page
that entitlement statute says that
the first

you're entitled for month --
QUESTION: MS. PRYOR: after it says that

each month, beginning with

Where are you reading from on 64a?
I'm sorry. I'm reading at page 65a
who is to a insured and
disability

every individual

meets these

criteria shall

be entitled

insurance benefit --
QUESTION: the page 65a?
MS. PRYOR: after D.
QUESTION: MS. PRYOR: Thank you.
Shall be entitled to a disability
I'm sorry. The beginning, right
What part of the page? What part of

insurance benefit for each month month after his waiting period.

beginning with the first
So -- and the -- and the
the waiting

waiting period is defined on page 69a at 2 as

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period means the earliest period of 5 consecutive calendar
months throughout disability.
So, I believe that the entitlement require that both statute does
which an individual has been under a

the person be under a disability, be -- have
and an impairment at such level of

the impairment

severity throughout those 5 months. they are with the entitled to a first month

Beyond the 5 months,
month beginning
all criteria of

benefit for each they satisfy

entitlement.
QUESTION: every time. So, that would be the sixth month

If that's --
Yes, Your Honor.
And if you case. started in -- in month The man did engage 6
in

MS. PRYOR: QUESTION: -let's take

this

substantial gainful activity for 2 years. MS. PRYOR: QUESTION: Yes, ma'am.
So, it starts

Is that right?

6 months after he has

been disabled and it continues until when?
MS. PRYOR: period statute dictates trial work period Your Honor, because the that a person is in trial work
a

entitled to month

beginning

the first

he's

entitled to

benefits, he

would be

entitled to

benefits

beginning in April 1995, which is when he met all criteria
of entitlement, and he would be entitled to a trial work

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period beginning that month.
QUESTION: MS. PRYOR: continue for 9 months That's 9 months.
And -- yes, Your Honor. It would

once he started

working and would

continue -at the

then he would get the -- once they determined

end of the trial work period, if they've concluded

that his work was continuing and showed he was now able to
engage in substantial off after those 2 -gainful activity, he could be He would cut
be

2 additional months.

subject to a

36-month re-entitlement period for

benefits

during any of those months.
QUESTION: But in this -- in this case, when he

-- if he -- he starts at month 6, how many months actually
would he be getting disability benefits?
MS. PRYOR: he returned to entitled additional to a He returned to substantial -- well,
of 1995, and he work period would be
plus the

any work in May 9-month trial

3 months, and then

for any months during that

36-month entitlement -- re-entitlement period during which
he could not work.
QUESTION: give me the But just -- just -- if you could just
We know the starting --

-- the time frame.

the start is -- is it April?
MS. PRYOR: QUESTION: Yes, Your Honor.
And the end -- the minimum end would

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be when?
MS. PRYOR: It would be -his actual work

started end of May/June, then 9

months, plus additional 3

months, so approximately 14 months I believe.
QUESTION: So, some considerable time after he

has been restored to substantial gainful activity.
MS. because period. Walton's his PRYOR: Yes, Your Honor. After he
--

that gainful activity is covered There is no evidence in this

by a trial work
case that Mr.

condition ever

medically improved.

Therefore,

-- his return to work and that work

is protected by the trial work
cannot be considered as

period

itself

evidence that his disability --
QUESTION: But once the period is over, making

substantial gainful activity, even though, as you say, his
impairment continued, he would not be disabled.
MS. PRYOR: period had ended, he That's correct. Once his trial work

would -- he could be cut off subject

to the re-entitlement period.
QUESTION: -- I think become seems to is reading it, but So -- so the basic statutory problem
debating whether you
12 months, and that

-- I see where -- you're 5 months or

entitled after

turn on the language in 70a.

And the Government

that -- basically there are many ways of doing
reading it to say a disability is an

they're

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inability

by reason to

-- to

engage in

any substantial

gainful activity

by reason of an impairment, which can be

expected to result in death or has lasted, you know, for a
-- which can be expected to lasted or can be expected to result in death or which last. And at this has

point,

they read into it the words: MS. PRYOR: QUESTION:

at that level of severity.

Yes, Your Honor.
And my problem is, to be absolutely

frank, I think you could read it at that level of severity
or you And don't have to read it at that level of severity.

the Government --

the Social Security Administration

has read has done

it the Government's way for 40 years, and nobody
a thing about it. And indeed, Congress has

passed some laws that seem to think that's right. would months. be a major change to jump from 12

And it
5

months to

So, there we are.
Now, what is your response to that?
MS. PRYOR: Well, Your Honor, my response is

that that requires this Court to read language into the --
into the definition.
QUESTION: We do that all the time.

(Laughter.)
QUESTION: -- you can't -Language -- of course, you can't read
bear, you can't
animal, you

if a statute refers to a

call it a fish, but if a statute refers to an

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certainly can read in that it doesn't mean fleas. that's common. of severity. It

I mean,

The statute -- it doesn't say which level
doesn't say it, and so you have to make

some assumption.
MS. PRYOR: reading the Your Honor, of I believe that the statute that -the --
and the

plain language has conceded

Commissioner which lasted

this point

the phrase,
which has

can be expected

to result

in death and

or can be expected to last for at least 12 months,
to the inability to engage
the

refers to the impairment, not

in substantial gainful activity. only logical reading Circuit found of that,

And I think that's which is you're what the

Fourth
the

because otherwise

saying that

inability to engage in substantial gainful activity can --
can result sense.
To read -- read it as the Commissioner would
most
in death, and that really doesn't make any

have you do is -- it fundamental rule of must that

seems to me is contrary to the

statutory construction, that Congress
what it says of in the statute and
is clear and

be assumed to mean when the language

the statute

unambiguous, it should be enforced according to its terms.
QUESTION: Pryor?
MS. PRYOR: I'm sorry.
Ms. Pryor, I think you heard -- Ms.

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QUESTION: in effect,

The -that

I asked the

Mr. Lamken

are you
means a

word impairment

disabling impairment.

Because I think you would agree too

that if you had a condition that severely disabled you for
1 week, excruciating back pain -- you couldn't do anything
-- but that well beyond impairment continued at a year -it didn't a less severe impede you level
from

substantial gainful activity -- you would not be disabled.
And yet, if you read the statute literally, you would be.
MS. entitlement impairment PRYOR: provisions is defined Your answer at page Honor, that 71a as I believe the
The

question. only

being
--

resulting from anatomical, physiological, or psychological
abnormalities. It does not contain an element of
The

inability to engage in substantial

gainful activity.

severity requirement, on the other hand, does, and that --
but that has no durational requirement.
QUESTION: condition that can be The case I gave you it says a
a

disabling.

It was

severe for

short period of time.
MS. PRYOR: that I believe that the entitlement
least 5

statute requires months,

it be

disabling

for at

the -- the

waiting period.

If it

is disabling

beyond the 5 months, then the person should be entitled to
benefits for those months while it remains severe. At the

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point that

it no longer remains severe, as defined by the
cut off, or if they return
they

act, then that person could be to -- to work and

their condition has not improved, trial work period and to

would be entitled to a

benefits

during that, at the end of which they could be cut off.
But I believe the entitlement statute answers
-- an
5

that question by saying you must -- you must have a impairment which months. is at the disabling level

for those

If it continues at the disabling level beyond the

5 months, you're entitled to benefits for those months.
QUESTION: matter months, what you So, for of the 12 months, it but in doesn't
5

the level must be

severity is, to engage

for the

unable

substantial

gainful --
MS. PRYOR: QUESTION: MS. PRYOR: QUESTION: what am I talking That's correct.
That's --
Yes.
What about -I'm what about (f)(3)
-talking about section

about?

423(f)(3) which says that a --
QUESTION: QUESTION: QUESTION: What page?
Where are you reading from?
I'm reading from my own copy of --

(Laughter.)
QUESTION: Page 76a.

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QUESTION:

It says

that a person

who has been
to

getting benefits may be benefits on

determined not to be entitled finding that the

the basis of a

physical or

mental impairment, on the basis of which such benefits are
provided, has ceased, does not only if such finding exist, or is not disabling
And then you go

is supported by.

down to (3). as

Substantial evidence which demonstrates that
new or improved diagnostic
or combination of

determined on the basis of

techniques, the individual's impairment

impairments is not as disabling as it was considered to be
at the she was time of the under is a able most recent prior decision disability, to engage and in that the he or
the

therefore

individual activity.

substantial

gainful

That seems to imply that the disability consists
of a continuous inability to engage in substantial gainful
activity, not just a sporadic one.
MS. PRYOR: I believe what this was referring to
the medical improvement must
--

you, Your Honor, is that

or in this case the new or improved diagnostic techniques,
must result in longer being of that person's then such severity -- their condition no

as to prevent

substantial

gainful activity.
QUESTION: Yes, but all -individual is all it requires
-able to engage in

therefore the

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substantial gainful activity. as he it's can engage -it in some

That implies that

so long
activity,
disabled
So, it

substantial gainful matter or if he were there.

wouldn't for a

sporadically

day here

a day

implies that it has to be a continuous inability to engage
in substantial gainful activity.
MS. whole section PRYOR: refers Your to Honor, I believe of that this
disability

termination

benefits --
QUESTION: MS. PRYOR: QUESTION: termination. gives you But I understand.
-- for somebody who's already --
I understand. It refers to

-- but what would apply of -- of what

to termination
-- what the

some indication

initial condition is -- is expected to be.
MS. PRYOR: QUESTION: Well, the impairment --
Namely, a condition of continuous

inability to -- to work.
MS. PRYOR: There is a severity requirement
And I -I

which is part of the -- the

definition, yes.

would not disagree with that.
QUESTION: But -- yes, but -- but you say that

that severity requirement has nothing to do with duration,
and this termination provision suggests something to do with duration --
that it does have

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MS. PRYOR: QUESTION:

I don't --
-- because if you can engage in any

substantial gainful activity, you're terminated,

assuming

that there's been the improvement in the condition.
MS. improvement and PRYOR: -Your Honor, once there is
in

and you

are now

able

to engage

substantial gainful activity, I would agree that you could
be terminated. It's just that from the outset you do not

have to have an impairment that --

that is known to be at
A person could have

that level of severity for 12 months. an impairment

at that level of severity for 6 months, and
waiting period has expired,
And they -they
have
Once

in the sixth month, after the they become entitled to

benefits.

continue to be entitled to an impairment

benefits as long as they level of severity.

which is at that

it's improved, they could be terminated.
QUESTION: doesn't get you --
QUESTION: period a person goes What if 1 week after Would the 5 month
I think you're right. I guess it

back to work?

that mean they

just got benefits for a week?
MS. PRYOR: No, Your Honor. If they went back

to work and unless their

condition had medically improved
I

-- if their condition had medically improved, then yes, think they could be terminated at that point.

If their

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condition had not medically --
QUESTION: would be And the test of medical improvement

the ability to go back

to work which they could

not do before.
MS. PRYOR: Their ability to go back -- the fact

that they had gone back to work would then be protected by
a trial work fact that period, and -- and they were working would be -- that would not be -- the
be

able to

considered as evidence that they However, if they had, in

were no longer disabled.
they

fact, medically improved,

could be terminated during that trial work period.
QUESTION: it not legally Government's May I also ask you? I know you think
with the

significant, but do you disagree position that they have

consistently

interpreted the statute in this way for 40 years?
MS. PRYOR: I would agree that they have

consistently interpreted the statute in this way.
QUESTION: And -- and would you agree that they

correctly describe the legislative deliberations in 1956 I
think it was? But you just say they're totally

irrelevant.
MS. PRYOR: Well, Your Honor, I would -- I have

referred to the legislative history in 1954, which is when
that definition of that instance, the disability was 1954 Senate first defined, and report delineated in
two

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aspects of disability evaluation, a medically determinable
impairment of serious proportions which of long continued inability to and indefinite is expected to be
present
by

duration and a

engage

in substantial

gainful activity

reason of that impairment.
And they went on to say that they wanted to be

assured -- assured that only long-lasting impairments were
covered and that that provision efforts towards rehabilitation only to the duration of the was not inconsistent with
because it, quote, impairment and refers
does not
End

require prediction of quote.
Those what

continued inability

to work.

-- that's the first time Congress defined
And it seems to me from the very

disability is.

beginning, they make

clear that they wanted

to encourage

people to work, and -- and they did that by requiring that
the impairment be the expected to last 12 months, in but not

requiring that

inability to

engage

substantial

gainful activity lasts 12 months.
I unambiguously believe in Congress' judgment language is expressed
-- and
it

the statutory

and is

that's confirmed by must not

the legislative simply because is at variance

history and that

be disturbed policy

the Commissioner's
with -with that

longstanding purpose.

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issue of be read

I would acknowledge that legislative history can
both ways, but it seems to me that the

contemporaneous considered more weight

legislative history, when

Congress first

the definition of

disability, should be given

and more weight even than that is the express

language of the statute.
QUESTION: in a case like this. One other thing I just wonder about

Has this point been raised before by

litigants such as your client?
MS. PRYOR: entitlement Yes, Your to a Honor. trial Well, the -work period the
and

entitlement to benefits has been decided by five courts of
appeals.
QUESTION: The trial work period, but -- but I

mean the 12 months versus 5 months as the --
MS. PRYOR: QUESTION: The 12 --
Has anyone argued this before this

MS. PRYOR: Massachusetts case issue.
The of

Well, yes, White v.

Your Honor. Finch

The --

the
this

considered

Alexander

case,

I will

acknowledge,

the

Tenth Circuit case in 1971,

went the other direction, and

-- and they did find that -- that the 12 months applies to
the impairment at that level of severity.

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you

But that -- the Tenth Circuit case

of Walker v.

-- the Walker case in the Tenth Circuit has essentially --
it does not explicitly refer to Alexander, but it clearly

finds that a person is entitled to -- to benefits and to a
trial work period even though they do return to

substantial gainful activity

within -- after

the 5-month
So --
Right?

waiting period but within 12 months of onset. QUESTION: MS. PRYOR: QUESTION: correctly, That refers to question 2. Yes, Your Honor.
And is on question substantial 2, if I

understand
the

there

agreement in

courts of appeals that you're correct?
MS. PRYOR: appeals have -- or Yes, Your Honor. four others, The five courts of
-- and the

other than

Walton case have -- have gone consistent --
QUESTION: But that's not the case with question

MS.

PRYOR:

Question

1

has

been

ruled

on

differently by different courts.
QUESTION: you lose Well, question 2 hinges 1, you lose on on question
question 2,

on question

don't you?
MS. PRYOR: No, Your Honor, I There's no don't believe we
question, but even
in substantial

a tougher call.

if you

find that the

inability to engage

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gainful activity must last 12 months, the entitlement statute required expectancy by and the -- the

language of the

prospective standard
with the
I

the entitlement language of the

statute, together disability

definition,

believe together require that benefits

be paid and that a

trial work period be available in this case.
QUESTION: Do you agree with the Government's
the

estimate that -- that if --

if you win in this case,

difference in -- in payouts under this program is going to
be something excessive?
MS. PRYOR: that. figures forum I believe and for No, those Your Honor, I don't are completely this believe agree with
like $8 billion a year? Is it -- is it that

unsubstantiated
the proper
properly be

that, one, that. I

isn't probably that should

addressed to Congress.

But secondly, I think that that --

those figures are based on a number of flawed assumptions.
Number one, Mr. Walton has never he is entitled to indefinite payment suggested that
while

of benefits Once

engaged in substantial

gainful activity.

his trial

work period ends, that work can then be considered and his
benefits would be cut off. In addition, someone whose

condition has medically improved, unlike Mr. Walton, could
be terminated from benefits prior to that, even before
-even during the trial work period.

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Secondly, those cases

the Government which have been

seems to denied

assume that
on durational
Fourth
A person

grounds in the

past would

be approved

under the

Circuit's ruling.

That is far from

the case.

must still have an impairment which is expected to last 12
months and that requirement.
Third, there effect for several the have been acquiescence rulings in
in
impairment must still meet the severity

years, applying 1988, the

the McDonald case Walker case

Seventh Circuit since

in the

Tenth Circuit

since 1992, the

Newton case in

the Eighth

Circuit since 1998, and the Salamalekis Circuit since late 2000.
QUESTION: Can I ask you

case in the Sixth

before -- can

I just

ask you quickly if you're -- simply repeating these, which
I -is that on question 2, am I right in thinking we

don't reach question 2 if you lose on question 1?
QUESTION: MS. PRYOR: is the case.
QUESTION: And that's what I didn't understand.
you answered. if you're not But why would
That's what I asked.
No, Your Honor, I don't believe that

That's what I thought maybe we reach you lose it because how --

entitled -- if

question 1, the person never and the statute

became entitled to
of trial

Social Security,

says a period

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work

shall

begin

with

the month

in

which

he becomes

entitled to Social Security. -I don't mean to have

So, what is exactly -- maybe
yourself if I just

you repeat

missed it.
MS. PRYOR: QUESTION: MS. PRYOR: must be entitled to No, that's okay.
But what's the response to that?
No, sir. I would -- I would be entitled to -- you
a trial

benefits to

work period.

However, I don't think that finding that the
the inability to

12-month duration requirement applies to

engage in -- in substantial gainful activity means that we
lose on entitlement. QUESTION: understand is The entitlement --
That's what -but what I didn't

if you lose on

question 1 and

your client
isn't that

therefore is not

entitled to Social Security,

the end of the case? MS. PRYOR: QUESTION: MS. isn't the PRYOR:

We don't have to reach question 2.
That's what I disagree on.
Yes, because --
But the definition of disability

the final part of that because the person can -- if
entitlement statute requires a prospective

consideration of the criteria of entitlement, every person
who's insured, has not attained retirement age, has filed

an application, is under a disability shall be entitled to
disability insurance benefits for each month beginning

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with the

first month after his

waiting period.

At that

time if you look at the requirements of entitlement at the
time of his beginning application in that month April 1995, because he he was met all entitled
other

requirements --
QUESTION: MS. PRYOR: That -- that's --
-- and he had a disability even if

you look at disability as an expectation --
QUESTION: Well, but if you lose on question 1,

he didn't have a disability.
MS. time an PRYOR: If he -that his even if there was at that
inability to engage in

expectation

substantial gainful activity must last 12 months.
QUESTION: have to write I'm going have to -- you're going to

-- somebody is going to have to write this.

So -- so suppose the first conclusion is your client never
became entitled to Social Security. Never. You have a

lot of different reasons why he did, but suppose every one
of them is rejected, which maybe they wouldn't be, but

assume that.

Then do we reach question 2?
If he's never entitled --
Yes, never entitled.
-- then I agree he is not entitled

MS. PRYOR: QUESTION: MS. PRYOR:

to a trial work period.
QUESTION: All right. So, we have to decide,

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for whatever not entitled.

theories you may have,

whether he is

or is

MS. PRYOR:

My only

difference with what you're

saying, Your Honor, is that he can be entitled even if you
find the duration applies to the inability to engage in

substantial gainful activity.
QUESTION: MS. PRYOR: statute is a That that is because?
And that is because the entitlement
from the point of

prospective

standard

application, and the --
QUESTION: Oh, yes, of course. It could turn

out that your client, even though at a level of severity for

he hasn't been disabled
is a

12 months, nonetheless

person that when they decided it I guess, the person -- it
could have been after 8 months, and the decider could have
said, oh, but it can be -- it will this level of severity.
QUESTION: that it doesn't Well, I guess you take be decided, that the position
the statute
be expected to last at

have to

itself says --
MS. PRYOR: QUESTION: of the 5 months.
MS. PRYOR: QUESTION: Yes, Your Honor.
That's your position.
Thank you.
-- the person is entitled at the end

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MS. PRYOR: QUESTION: MS. PRYOR: QUESTION: fact the

That is my position.
It doesn't require a decision maker.
Thank you.
But if -disability then in a but if -- if we level case must in be determine
as the
the
at

Government

claims,

which

determination is made that time the person

before the is back

12-month period and working at

a substantial

level so that

the determination is properly made that the
no reason, in

person never qualified, then there would be a case

like that, ever to proceed to the second question.

Isn't that correct?
MS. PRYOR: QUESTION: QUESTION: be sure You I Yes, Your Honor.
Okay.
May I ask this one question? haven't missed something it, I just
in the
a

argument. severity

agree, as

I understand

there is

requirement in the impairment.

And what is the

severity requirement?
MS. (d)(2) of 423, PRYOR: Your Honor, that is set out in
And

which is -- it's

found at page 70a.

that provides that an individual shall be determined to be
under a disability only if his physical or mental

impairment or impairments not only

are of such severity

that he's

able -- unable to do his

past work but can't do

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other work.
The equivalent of that or even a higher standard
of that is meeting a listing of impairments, which my

client did, and he -- he met the listing --
QUESTION: If I understand you, you're saying

that the -- that the severity requirement is an to engage in substantial work.
MS. PRYOR: Well, but -yes.

inability

And considering

you can't do your past work or other work considering age,
education, and work experience.
But another part which is a higher level, those impairments of that is meeting a listing,
as

and the listings are defined presumed to be

which are

-- prevent

someone from being able to engage in any gainful activity,
not just substantial gainful activity. My client was
being --

found twice

by the administrative

law judge as

having a listing-level impairment. met the severity requirement and

So, by definition, he
he met that at the time

of both hearings, the second of which was a half years after its onset date.
QUESTION: have trouble It seems to me if

more than 2 and

that I -there's a

I really
severity

understanding

requirement measured by inability to time, why that severity requirement the entire period under the

work for a period of
wouldn't continue for
definition of

statutory

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impairment.

That's what I'm having trouble understanding.
Well, first of all, Your Honor, the

MS. PRYOR:

severity requirement does not have a durational element to
it. There's nothing in that --
QUESTION: disability has It doesn't say so, but the -- but the
requirement and it's not a

a durational

disability unless it's severe enough.
MS. durational --
QUESTION: MS. PRYOR: Impairment I should say.
And -- and there is a separate
PRYOR: Well, the impairment has a

severity requirement, but I don't believe that the statute
says that -for 12 that it must last at that Once you no longer level of severity
have a severe
benefits
-- that
it will
12

months.

impairment, I would can be terminated. at the

agree that you

can -- your

But it does not require that an expectation that for the

outset there must be that level

persist at months.

of severity

entire

And I believe that the legislative history gives
the reason for that. Congress wanted to balance its

desire

to restrict payment of benefits with its desire to
people to try to go back to work. The

encourage

Commissioner's policy has

the opposite effect.

It tells

people stay home for 12 months or at least until your case

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is adjudicated, a clear

before you try to work.

I believe that's

disincentive for people like my client who are --
to work despite the fact that their

who are attempting

impairment remains severe.
QUESTION: Does the record tell us what's

happened to the respondent in the interim?
MS. PRYOR: Your Honor, he -- this is not in the

record, but he subsequently reapplied and is on disability
benefits based on the subsequent application.
There is no question in this case that Cleveland
Walton would have had he tried been paid disability benefits long ago

merely stayed home until after his hearing and not
to work. Instead, he has been penalized for his

courage and his

motivation in trying to

work despite his

continuing listing-level impairment.
The language legislative longstanding repeatedly of Commissioner's policy violates the history agency rejected statute. of the It is the express
to the
to
been

contrary

disability And

program and it has

regulations. by courts of

appeals and

district
policy

courts throughout the Nation.

The Commissioner's

is also contrary to sound public policy concerns which are
are reflected both case law.
Accordingly, the Commissioner's unlawful and
in the legislative history and in the

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ill-advised policy should be rejected so that other highly
motivated disabled persons like Cleveland Walton will not

be penalized in the future for their good faith efforts to
work.
I'd be happy to address might have.
QUESTION: Thank you, Ms. Pryor.
any other questions you

Mr. Lamken, you have 4 minutes remaining.
REBUTTAL ARGUMENT OF JEFFREY A. LAMKEN
ON BEHALF OF THE PETITIONER
MR. LAMKEN: I would like to begin by addressing

the 5-month trial work -- excuse me -- the 5-month waiting
period. large And it's important and important to emphasize that for a of the Social very

component

Security

program, the SSI program, the Supplemental Security Income
disability program, So, for anyone they there is no 5-month waiting period.

who's applying for SSI

disability income,

-- that person, under

respondent's and the court of

appeals' interpretation, would be entitled to benefits for
a very brief period of inability to work so long as the

underlying medical condition, such as asthma or arthritis,
can be expected to last or has lasted 12 months. view of the of structure the of the for act, It is in
the
the

including after

continuation disability

payments hard to

2 months that that

ceases,

believe

was what

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Congress had in mind.
Second, I should emphasize that the 5-month

waiting period isn't part of the definition of disability.
What it is a period burden of is it operates like a deductible. of time their during which disability saves the for that the individual themselves and It provides
bears the
saves the
would

Government the -have to be paid

Government money that individual. But it

does not

determine

what is a disability.

It only determines what
by

period of disability will be the Government.
I'd like to the legislative

paid for and compensated

also turn to The

mention for a

moment
upon

history.

legislative history

which respondent relies is for 2 years

a separate program enacted
The

before the disability program at issue here.

disability program issued in 1956.

When Congress enacted
engage in
was
not

it, it clearly understood that the inability to substantial gainful activity, going to have to last the

the disability itself, requisite duration and

merely the medical And when Congress

-- not changed

merely the medical the duration

condition.
from long,

continued, and indefinite, which was the original term, to
12 months, it specifically understood that the 12-month

period applied severity.

to the impairment at a

disabling level of

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And the -- the Senate report, which is quoted on
of our brief, makes that lucid. It states that

the act, as amended, would provide for disability benefits
for an insured worker who has be totally disabled calendar months, been or can be expected to

throughout a continuous period and a 6-month period was

of 12

rejected

specifically because term disabilities.

it would provide benefits for short-

Finally, in terms

of incentives, the

incentive

to work before there is an actual disability is

properly addressed by the Commissioner's unsuccessful work
attempt regulations.
In addition, the court of appeals' construction

is an overbroad response that actually deters returning to
work because it would provide benefits not merely to those
like Mr. Walton who have a long-term impairment that

briefly disables them and then but also those who have

heroically return to work,
impairment that

a long-term

briefly disables them and do not actually The vast majority of return to work, and receive

return to work.
not

applicants who seek benefits do those -- and those

individuals would

benefits despite an ability to return to work and

their failure to do so.
If there are no further questions.
CHIEF JUSTICE REHNQUIST: Thank you, Mr. Lamken.

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The case is submitted.
(Whereupon, at 12:04 p.m., the case in the

above-entitled matter was submitted.)

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