Barnhart v. Thomas - Oral Argument

Argument of Jeffrey A. Lamken

Chief Justice Rehnquist: We'll hear argument now in No. 02-763, Jo Anne Barnhart v. Pauline Thomas.

Mr. Lamken.

Mr. Lamken: Mr. Chief Justice, and may it please the Court:

As the Commissioner of Social Security has long construed the disability insurance program, there can be no finding of disability unless at least two conditions are met.

First, the claimant's impairment must be of such severity that she cannot... she is unable to do her previous work.

Second, the impairments must be of such severity that the claimant cannot, considering her age, education, and experience, engage in any other kind of substantial, gainful work which exists in the national economy.

Construing and applying those provisions for more than 3 decades, the commissioner has consistently concluded that if a claimant continues to function at a level sufficient to meet the demands of past work, then the claimant is not disabled without the necessity of inquiring into whether that particular past job exists in significant numbers.

That's the most natural reading of the statutory text.

Justice O'Connor: Mr. Lamken, this case, I think, involves provisions of both title II and title XVI of the act, and there are regulations under each.

Mr. Lamken: That is correct.

It is...

Justice O'Connor: Now, are there any relevant differences in the text of the two statutes or the regs on this issue?

Mr. Lamken: No, Your Honor.

We don't believe that there are any relevant differences, that the commissioner's regulations and the statutes themselves are all phrased in parallel if not identical language throughout.

There is one difference in that for a disability insurance, these title II provisions, you have to be someone who has paid into the program in order to be eligible for benefits on the way out; whereas, title XVI is more of a welfare program where whether you've paid in in the past doesn't matter.

But that simply means that one who has paid into the title II program would get considerably more benefits than one who has not.

Justice O'Connor: But on the test.

Mr. Lamken: On the test, it is an identical test.

Justice O'Connor: There's no difference.

Mr. Lamken: There is no test, Justice O'Connor.

Justice O'Connor: Thank you.

Mr. Lamken: That construction preserves the distinction long recognized in the commissioner's regulations, in fact, recognizing the commissioner's regulations from the earliest days of administering this statute.

Between disability insurance, on the one hand, and insurance against other causes of unemployment, such as technological and economic change, on the other, an individual who's doing a job who remains fully capable of doing that job, but then loses the job because of economic change or perhaps the job never existed in significant numbers and the individual chooses to leave, is not unable to engage in that activity by reason of an impairment, which is the test under the statute for being entitled to benefits.

And it made sense for Congress to draw that line because if someone continues to function at a level sufficient to meet the demands of their previous work, it's virtually certain that they're capable of doing some work whether or not that particular past job exists in significant numbers in the national economy.

The point isn't that the person is expected to return to that particular past job.

Rather, it is their continued functioning at a level sufficient to meet the demands of that job provides a highly accurate and administrable test of the fact that they continue to function at a level sufficient to meet the demands of work generally.

In a program that must resolve more than 2 million claims a year, the need for that type of a highly administrable test, that type of highly accurate test is particularly acute.

And this is precisely the type of test one would have expected Congress to provide.

A potentially large number of Americans today do not work in jobs that exist in significant numbers in the national economy.

When those workers leave their jobs, whether they quit, are fired for misconduct, or leave for other reasons which are good and sufficient, the court of appeals would preclude the commissioner from denying them benefits based on their continued capacity to do that past job even if that job is still available to them, even if the employer is on the phone begging them to return to their job.

The commissioner reasonably construed the statute as not compelling that result.

If there are no questions, I will reserve the remainder of my time for rebuttal.

Justice Ginsburg: I have a... a question about the consistency of the argument you're now making with the... with the commissioner's regulation concerning you don't go back more than 15 years.

That seems to be a recognition that even if a person can do the job that he or she did 15 years ago, yet there's a likelihood that maybe that kind of work isn't in abundant supply anymore.

Mr. Lamken: Justice O'Connor, the concern of that 15-year...

Justice Ginsburg: I'm Justice Ginsburg.

Mr. Lamken: Oh, Justice Ginsburg.

The concern of that regulation isn't whether or not that particular past job exists in significant numbers.

It provides an administrable and in fact prophylactic test to make sure that the demands of that job are demands that are ones that are likely to be relevant in the national economy.

It's unlikely that a set of demands of a job would completely disappear from the economy entirely during any one person's lifetime.

But to make assurance doubly sure, to make absolutely certain, the commissioner has set forth an administrable bright line, 15-year rule that says if the job is more than... if you did the job more than 15 years ago, we won't consider it out of that concern.

But it is not a consideration of whether the particular past job exists.

It's a consideration to make sure that your continued ability to the demands of that job is an appropriate and accurate measure of your ability... your level of functioning, and that your level of functioning is consistent with work generally.

If there are no further...

Justice Stevens: May I ask this question just about the facts of this case, Mr. Lamken?

When this applicant suffered her physical impairment... I forget just what it was now... she was able to go out and find a job as a... a... an elevator operator.

Right?

Mr. Lamken: That's correct.

From... if I remember correctly, from 1988 to 1995, she worked as an elevator operator.

Justice Stevens: If the absence of elevator jobs had occurred earlier and she hadn't been able to find this job, she would clearly be disabled, wouldn't she?

Mr. Lamken: No, Justice Stevens, I'm not sure that she would be found disabled.

The commissioner would have gone through the steps and... and determined whether or not she had a severe...

Justice Stevens: She would have made the fifth step.

Mr. Lamken: If you were not to consider the... the previous work of an elevator operator and you only applied the fifth step, which is the other work step, in isolation, that's correct, that she would have been found not able to do other work in the national economy.

But the fifth step is designed to work in conjunction with all the other previous steps and, standing alone, does not necessarily represent an accurate determination.

Congress provided two conditions that must be met, previous work and other work, precisely because the somewhat abstract inquiry into other work that plaintiff has... the claimant has never done may not be a fully accurate or necessarily an easily administered mechanism for determining the level of work that the claimant can do.

Justice Stevens: See, the thought that was running through my mind, just to put it on the table, is that in a sense perhaps the Government's position creates a disincentive to look for other marginal jobs when you're in this position.

You might be better off just not to look.

Mr. Lamken: Justice Stevens, the commissioner's rules actually take into account incentives to look for work through the unsuccessful work attempt regulations.

And so that is something that has been dealt with.

And the same... the same problem existed in the Walton case, for example.

It is unfortunate that sometimes people, by engaging in socially desirable conduct, going out and working, will actually provide the evidence that shows that they're capable of working, but that is just a necessary consequence of a program that...

Justice Stevens: Capable of working in a disappearing species of jobs.

Mr. Lamken: Well, Justice Stevens, the key point about the court of appeals decision is not limited to cases of job obsolescence.

It's any time somebody is working in a job that may never have existed in substantial numbers.

If they leave that job for whatever reason, if they quit or are fired for misconduct, under the court of appeals rule, the commissioner cannot deny them benefits based on their demonstrated ability to do that job.

Justice Kennedy: Suppose in Justice Stevens' hypothetical the employer said, you know, you can operate the elevator but it's just going to be going for 6 months.

We're rehabbing the building and after that... it's just a 6-month job.

Mr. Lamken: Right.

Justice Kennedy: Then... then is she again barred under step four?

Mr. Lamken: Justice Kennedy, that would... it would depend on whether or not that sort of a temporary position would qualify as substantial, gainful work under the commissioner's regulations.

If it is a make-work position or it's a position that does not represent functioning at a level... it's a sheltered position or it is some other... some other reason that it is not evidence of functioning...

Justice Kennedy: No, no.

She can... she can perform the elevator job completely well.

Mr. Lamken: If this is something...

Justice Kennedy: Everybody knows it's a... it's a job that's soon to be obsolete, and she's told that.

Mr. Lamken: Justice Kennedy, I think...

Justice Kennedy: She'd be better off not taking that job.

Mr. Lamken: In terms of getting...

Justice Kennedy: Or suppose... or... or suppose she didn't take that job.

Would she then still be barred?

Mr. Lamken: If the... if she did take the job, Justice Kennedy, and the job represented functioning at a level that's consistent with work generally that is substantial, gainful work, she would be barred.

And she perhaps might be better off not taking the... taking a job like that under the commissioner's regulations.

However, the mere fact that somebody taking a job provides evidence that they function at a level that is consistent with past work doesn't mean that we should come up with less accurate determinations by ignoring their demonstrated capacity to engage in their... in their past work.

If there are no further questions.

Justice Ginsburg: Yes.

Chief Justice Rehnquist: Very well, Mr....

Justice Ginsburg: One... one... just one further question.

In... in this case if she made it to step five, it wouldn't be just a question that the burden would be switched to the Government, she would automatically prevail.

Isn't that the case?

Because of her age?

Mr. Lamken: That's correct, Justice Ginsburg.

The... the way the commissioner's grids are set up, they make various assumptions regarding the effects of age, the exertion levels demanded by particular jobs, and other matters.

And because it is a somewhat hypothetical inquiry to look into the many jobs somebody hasn't done in the past, the step five inquiry sometimes will render... will deem somebody not... will deem somebody disabled even though they actually can work.

It is precisely because of that reason that Congress provided two measures of capacity to work: a highly empirical one, can the person do the jobs they actually have previously done in the past; and second, whether or not the person can engage in the other jobs that they haven't actually done in the past

And because the two steps work more accurately together, that's why we... one of the reasons we believe that Congress provided those two steps.

In addition, it also preserves the line between people who become unemployed because of their impairment, and ones who happen to be fully capable of doing their past jobs but lose those jobs for whatever reason, such as either technological obsolescence or they simply choose to leave those jobs voluntarily.

If there are no further questions.

Argument of Abraham S. Alter

Chief Justice Rehnquist: Very well, Mr. Lamken.

Mr. Alter, we'll hear from you.

Mr. Alter: Mr. Chief Justice, and may it please the Court:

Today the commissioner argues against its own theme of providing a remedy when someone is disabled.

Congress did, indeed, intend to make a difference, to separate step four, previous work, from step five, or other work, but Congress told us what that separation is.

At the fourth step, previous work, age is not a factor, education is not a factor, and prior work experience is not a factor.

This is simply because if a person wasn't too old to do his job or her job in 1995, we assume they weren't too old to do it in 1996.

If a person had the requisite education and skill level to perform the past job in 1995, then they have the same skill level and education level in 1996.

And of course, prior work experience is irrelevant at step four because we're talking about the actual job that she did.

What Congress didn't intend was to pretend that a job that doesn't exist can still be used to deny benefits.

Work has to be substantial.

The commissioner concedes that.

It has to be gainful.

The commissioner concedes that.

And it has to exist.

Justice Scalia: But your... no.

It has to exist in substantial numbers in the national economy.

What you're... you're arguing that a job that does exist and that this particular supposedly disabled person used to perform and which is offered to that supposedly disabled person but which that person turns down can, nonetheless, not count against the person's disability.

Mr. Alter: That is correct, Justice Scalia.

Justice Scalia: So it seems to me it's your position that... that presents a really extraordinary situation.

Let's say I'm a juggler, and I become disabled.

And... and the circus I was a juggler at comes and says, you know, we... we want you back.

We can't find another juggler.

There aren't that many because there are not that many juggler jobs in the national economy.

Okay?

And I turn them down.

I say, I'm tired of juggling.

And you say that I'm handicapped even though my... my prior job is... is right there waiting for me.

That seems to me an extraordinary result.

Mr. Alter: That is exactly what I'm saying, Judge Scalia... Justice Scalia.

I'm sorry.

And the reason I say that is because a person is not disabled or not disabled at any one step of the sequential evaluation.

Your Honor's question focuses on the immediate reason for the disengagement of the person from the workforce.

That's not the commissioner's position.

That hasn't been the commissioner's position.

A person is not disabled or not disabled because of Ringling Brothers calls them on the phone and says, please, come back.

They are disabled by operation of the sequential evaluation.

And the commissioner is the one who promulgated the sequential evaluation.

And the sequential evaluation is a recipe with alternating steps regarding medical and vocational factors.

And...

Justice Ginsburg: The commissioner has explained that it's... using this test, can you perform your most recent job, as a proxy for instead of testing people to see the range of light work that exists in the economy.

They say, we're just using this as a shorthand because it's administratively convenient.

And it's not using it to say, this person can do this job that's obsolescing, therefore she is not disabled.

This particular job is a proxy for other jobs that require the same skill level.

Now, what's wrong with taking that position instead of subjecting people to a whole battery of tests?

Mr. Alter: Justice Ginsburg, your rendition of the commissioner's argument is exactly correct.

If I were permitted to ask a question, I would ask myself a proxy for what.

It is a... the job doesn't exist.

So, therefore, her ability to do the job...

Justice Ginsburg: In substantial numbers in the national economy.

Mr. Alter: National economy.

Justice Ginsburg: The very job may exist and be open for her to take.

Mr. Alter: Correct, but in most cases it wouldn't be open for her to take.

That's the extreme position where... and that's our position that happened in this case.

And that's a very extreme position.

And it would be an unintended consequence of the statute.

But Your Honor is absolutely correct that that is their position, that past work, even if it doesn't exist in substantial numbers, is a proxy for her ability to do other work.

What other work?

At the fifth step, she's disabled because she would not be able to make an adjustment to other work which exists in substantial numbers in the national economy, according to the commissioner's statistics.

Justice Scalia: Well, it's not according to the commissioner.

It's according to the statute.

Can... can we focus on the... on the words of the statute?

It says that the mental impairments... physical or mental impairments are of such severity that he is not only unable to do... 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.

Now, you want to take that last phrase, which exists in the national economy, and attribute it to the earlier phrase, previous work.

But if that's what Congress meant, why wouldn't they just have said that he is unable, considering his age, education, and work experience, to engage in any substantial, gainful work which exists in the national economy?

You... you want to effectively read the first phrase, is not only unable to do his previous work, right out of the statute.

They may just as well have dropped it.

We don't read statutes to contain words that are totally superfluous, and you have made them totally superfluous.

Mr. Alter: On the contrary, Your Honor.

The words, any other kind, would be superfluous.

Congress, indeed, intended to make a difference between previous work and any other kind of work, and that difference is, besides age, education, and prior work experience, which are irrelevant at step five... they wanted to have the burden on the claimant for disability to show at the first four steps that she is disabled.

At the fifth step, it is the commissioner who must show that she isn't disabled.

And that's why the words, which exist in the national economy, are in there to begin with because what they wanted to preclude was the commissioner saying, well, you can't do your prior job, but you can be a juggler.

Justice Breyer: Well, you see... can we go back for a second to Justice Ginsburg's question?

Does this... I mean, your reading of it is a possible reading, I... I agree.

But they're saying their reading makes administrative sense.

Now, this is my understanding of it.

A person has a bad back.

Now, there are bad backs and bad backs, but it's not a good thing to have.

So she has a bad back, and we want to know how bad it is.

And they're saying if it's very bad, she automatically is going to get the money because at step three they'll look and see and say, look, this is a pretty bad back.

It meets our criteria.

That's the end of it.

But if it's medium bad, then what they're going to say is, well, first question is can she still do her last job as an elevator operator.

And if the answer to that question is yes, that's the end of it.

And, therefore, if the answer, however, is no, then we've to go and gear up our vocational experts.

Are there dolls' eyes' sewers?

You know, they have a few odd jobs they usually bring in here...

Mr. Alter: I know.

Justice Breyer: to show they exist in the national economy.

And... and we get... we don't want to go through that rigmarole.

So for a medium bad back, if you can still do your previous work as an elevator operator, you're not that handicapped.

That's the end of it.

Go to the unemployment office.

Don't go to the... the health office.

Now, what... that to me makes sense.

Now, what to you doesn't make sense?

Mr. Alter: Oh, it doesn't make sense at all Your Honor, to me, obviously.

[Laughter]

Chief Justice Rehnquist: No, no.

Justice O'Connor: Well, go ahead.

Mr. Alter: Your Honor's question seems to make step four, previous work, a gauge as to how severe the severe impairment is.

Justice Breyer: Exactly, and I think they suggest that might be so.

Mr. Alter: And... but step four, previous work, is a remedy that the commissioner can use for their convenience.

Why look at every job in the national economy?

Let's start here and see if that medium bad back would preclude her from her past job.

But to what end?

So that she can resume that job.

It seems to me, Your Honor, that once...

Justice Breyer: So you're not saying it is to that end because it's the unemployment office that's concerned about people who are out of work because you don't have elevator operators in the economy anymore.

That... it's not the Social Security office, they say, which is concerned about people who are physically hurt or mentally hurt.

Mr. Alter: Number one, Your Honor, Pauline Thomas could never collect unemployment insurance because the first thing they would ask her, are you ready, willing, and able to work?

Do you have any medical problems?

Once she has a severe impairment, at step two the unemployment argument, issue, or... or controversy is over.

Once she shows... because that's the threshold.

When the... when the statute says, by reason of a medically determinable impairment, it doesn't mean exclusively for medical reasons.

But once she shows that medical impairment, to who?

To the satisfaction of the commissioner.

Once the commissioner says, yes, you have a severe impairment, then vocational issues, such as, okay, you can do a job, but does the job exist, become paramount because the... the purpose of the statute, it seems to me, is to provide a remedy.

Now, there are two remedies that are possible after this sequential evaluation process.

Remedy one, there are no jobs existing in significant numbers in the national economy that you can do.

So here's your benefits.

Remedy two, you know what?

There are jobs existing, whether it's your job, whether it's another job.

And therefore, we've done you a favor.

We've told you that the economy can accommodate you after your injury.

Therefore, go get that job.

Justice O'Connor: Mr. Alter, if... if we think the statute may have certain ambiguities in it, why don't we owe deference to the Secretary's regulations and interpretation, which has been pretty consistent through the years?

Mr. Alter: There are three answers to that question, Your Honor.

First of all, I'm... I'm crestfallen that... that the Court would find that there's ambiguity.

But given that... that they would...

Justice O'Connor: If we think there is.

Unidentified Justice: [Laughter]

Justice Kennedy: And we're not crestfallen.

Unidentified Justice: [Laughter]

Justice Scalia: Pick up your crest and go on, Mr. Alter.

Unidentified Justice: [Laughter]

Mr. Alter: If the statute is ambiguous, the commissioner's construction must still be reasonable.

Here, I would say it is not reasonable.

That's the first.

Because it... it begs reality.

The reality is this job doesn't exist in substantial numbers.

Or at least, we want to be able to show that at an administrative hearing.

Justice Ginsburg: Mr. Alter, how do you deal with the fact that a number of circuits and, indeed, three judges on this en banc court thought exactly that, that this was an ambiguous regulation, that it had been applied consistently by the Secretary, and that it was entirely reasonable, the... the notion that your current work is a proxy for can you do light work, that that's a... not a necessary or inevitable one, but a reasonable one?

Mr. Alter: Justice Ginsburg, first, let me take the... the last part of your sentence.

Proxy to do light work.

She wins at light work at step five.

So again, it's a proxy to do light work.

Justice O'Connor: No.

Justice Ginsburg: Step five in her case we've established is an automatic.

It's not that she's shown that she can't do light work.

The commissioner says, look, when you get to be 55 years old, we're not going to mess with that.

If you can't do your prior job, that's it.

Mr. Alter: But it's the reason why, Your Honor, because she can't make an adjustment to any jobs.

If a person can do light work, that proxy issue, she can do her past job which is light, then she can do other light jobs.

But the commissioner tells us that she won't be able to adjust to other light jobs.

And will she be able to adjust to her current job?

There is no adjustment to a current job, unless the job doesn't exist.

But to answer your question about the other circuits, the other circuits... circuits focused on the regulation, focused on the ruling, 82-61.

That says, well, it doesn't make a difference whether the job exists.

It's whether you can do that job.

And most of the other circuits said, well, the regulation says do your past job... a strict reading of do your past job means the capacity rather than a reality standard.

But they didn't focus on the statute.

And if I might answer Judge... Justice O'Connor's question about ambiguity, if I haven't answered your question.

Justice Ginsburg: No, you haven't because there's another piece of it.

For the future, regulation that doesn't apply in your case, the... the commissioner has clarified that what we mean is can you do the physical aspects of this job and we don't look to see whether it's an obsolescing job, a brand new regulation that doesn't apply to your case.

On your argument, I take it... you're going now back to the statute... that new regulation is an impermissible construction of the statute.

Mr. Alter: That is exactly correct, Your Honor.

May I, Justice O'Connor, answer your question?

The deference owed to their... the commissioner's construction of the statute is not much.

It's Skidmore deference.

Justice Kennedy: What?

Mr. Alter: Skidmore deference, Skidmore v. Swift.

Chief Justice Rehnquist: Oh, I thought you said Skinmore.

Unidentified Justice: [Laughter]

Mr. Alter: Chevron, the... the great case, the elephant in this room... Chevron has a two-step policy.

The first one has been precluded by Your Honor's question, whether the statute is ambiguous.

The second part says, well, it owes great deference to the commissioner's position, but not, Your Honor, in a construction of a statute.

It is this Court's role to tell us what the law is and what the law means.

Chief Justice Rehnquist: Now, what does Chevron amount to?

I mean, if... if you're... it struck me always that the... the first step is is the statute ambiguous, and second, if it is, is... is the construction reasonable.

It is by definition a construction of the statute you're talking about in the second step.

Mr. Alter: Yes, Your Honor, but I believe under U.S. v. Mead the Court did make a distinction between a... an administrative policy...

Chief Justice Rehnquist: But Mead was... but Mead was not a Chevron case.

Mr. Alter: Mead was a construction by an agency case, and Mead says, I think... my... my reading is that if a... an administrative policy is at issue, great deference has to be given.

But a construction of a statute... an agency does not have deference, great deference, because of administrative...

Justice O'Connor: I... I rather thought that's what Chevron was all about.

I'm interested that you don't think so.

Mr. Alter: Well, my reading, Your Honor, is that Chevron deference will only apply to an agency's statutory interpretation if it emerged from a formal adjudication.

Justice Breyer: I certainly don't see that in Mead.

I... I mean, I understand that there have been views around taken from the dissent I think, that maybe that's what it says, but when I read it about 17 times now...

Unidentified Justice: [Laughter]

Justice Breyer: it didn't seem to say that.

I mean, it said that... that certainly if they have formal proceedings, that would be a strong ground for thinking that we would apply Chevron.

And if they didn't, it doesn't mean we won't.

Did you get all the double negatives?

Unidentified Justice: [Laughter]

Mr. Alter: I understand.

All I can do is assert that if Chevron means that if we find some sort of ambiguity in a Federal statute, we give pretty much carte blanche to the agency.

That was my reading of Chevron.

That would be a disappointing reading of Chevron because I think...

Justice O'Connor: If it's reasonable.

If the agency has given it a reasonable construction.

And from former questions this morning, the suggestion is that the regulatory approach is kind of an administrative shortcut for finding out whether this employee is basically able to do certain types of light work.

Mr. Alter: I would argue, Your Honor, that it is not reasonable in any... by any stretch of the word because may I remind, Your Honor, that we're talking about a job which may not exist at all, and a finding that a person is not disabled because they're capable of doing a job that doesn't exist can't be reasonable.

If we take... I... I say that...

Justice Scalia: Why is that?

What does... what does disabled have to do with doing a job?

I mean, disabled is a... is a physical condition, and they say if you can do the job you used to do, you're not disabled.

Mr. Alter: Your Honor...

Justice Scalia: The word is disabled, not unemployed.

Unemployment insurance is something different.

It's a different program.

This program is not meant to provide for unemployment.

It's meant to provide for disability.

Mr. Alter: But what I meant...

Justice Scalia: And all the... all the Secretary is saying is if you can do your prior job, you're not disabled.

That seems quite logical to me.

Chief Justice Rehnquist: I...

Mr. Alter: Let me try to highlight the illogical parts of that then, Your Honor.

Unemployment has nothing to do with this litigation.

The person has a severe impairment.

As a matter of fact, let's be precise.

The person has cardiac arrhythmias.

The person had a heart attack and returned to work.

The person had a... a herniated disc and cervical radiculopathy.

According to the commissioner's construction here, the only job in the world that she could adjust to is a job which may not exist.

Once she has a severe impairment, Your Honor can bring up unemployment for the rest of the session, but unemployment is a red herring in this case because once you have a severe impairment, we're not talking about unemployment anymore.

We're talking about...

Justice Ginsburg: Then she should... we should have ended it at step three, but the commissioner makes a distinction.

And her impairment, because it wasn't on the chart, doesn't make it.

She is not at that point disabled.

You have to go on to the next step.

If she were disabled, that would be the end of it and we wouldn't... but she isn't disabled under this formulation because she's not within the conditions that that's the end of the examination.

Mr. Alter: Justice Ginsburg, your question and Justice Scalia's question seem to me to define disability in a vacuum.

She is disabled... she isn't disabled because she can do a job.

Suppose she can be... she be... she can deliver ice.

That job doesn't exist anymore either.

Suppose she could be a court jester.

Disability has...

Justice Scalia: You're the one that... that is tying disability to employment, not... not Justice Ginsburg and I.

Unidentified Justice: And... and yet, you keep saying that... that unemployment insurance is a red herring.

Justice Scalia: You're the one that keeps bringing it in.

You... you say we can't tell whether the person is disabled unless the person can get a job, but that's not the statutory requirement for disability.

Mr. Alter: Your Honor, I am not saying that a person is disabled unless they can go get a job.

What I'm saying is that disability means that a medical impairment prevents you from adjusting to work which exists in the national economy.

Justice Souter: And they are saying, to take your example, if you're a former iceman and you're still strong enough to deliver ice, you're probably able to do other jobs.

What is unreasonable about that, even if there's no ice delivery anymore?

Mr. Alter: Because at step five, when the commissioner says that you cannot adjust to other jobs, I take them at their word.

Statistically, according to the commissioner's sequential evaluation, according to the commissioner's vocational rules, there will not be an ability to adjust to any other job which exists in the national economy.

Justice Souter: And... and at the point at which you get to step five, you've already found that the person can't deliver ice anymore.

So there has already been a finding of some disability to some degree irrespective of the capacity to go to a nonexistent job.

I mean, the... the proxy determination has already been made before you get to step five.

Isn't that right?

Mr. Alter: That is correct, Your Honor.

Justice Souter: That's what step four is there for.

Mr. Alter: That... that is correct, Your Honor, but we keep getting back to that proxy, that word proxy.

Well, even if your job doesn't exist, it's a proxy for your ability to do other jobs.

But what other jobs?

Justice Breyer: Well, if you're an... first of all, I don't know why it doesn't exist.

We have elevator operators in this building.

Mr. Alter: Yes, Your Honor.

I gave her my card.

Justice Breyer: All right.

So... so, I mean...

Unidentified Justice: [Laughter]

Justice Breyer: It points out a certain unrealism.

A person who works in an elevator is a pleasant person, and they sit down for some of the day and they're up... standing up for some of the day.

And they have to see that people get on an off properly.

It requires a degree of intelligence.

It requires a degree of personality.

It requires a certain degree of skill.

And so there... you would have thought there would have been a lot of other jobs like that in the economy.

And, I mean, even if there aren't too many elevator operators, there are some.

I mean, I'm trying to point out the realism that they say exists behind their... their assumption there.

And it's pretty hard.

We're talking about... it's really hard to find an example that fits the category you want to say this is in.

Mr. Alter: Your Honor's question about the elevator operator is a... a serious one because an elevator operator we have in this Court pushes buttons.

Yes, there's personality involved, but I... I don't think that one of these individuals would be denied this job if she didn't have a sterling or... or a wonderful personality.

She pushes buttons.

That's not what my client did.

My client operated an elevator.

The reason we have elevator operators in this building, I'm assuming, is to add to the majesty of the building, for security purposes so I don't wander up and down the halls where I'm not supposed to go.

There are elevator operators in luxury buildings which really act as security or helping people with parcels.

This person pushes a button, and she's here for a reason, which really has nothing to do with what my client was doing.

She was opening a gate and opening a door, et cetera, and pushing the actual buttons, and operating... well, you've... everyone has seen an elevator operator from the old days.

The point is... the point is that all we want to do is show... an opportunity to show what every SSI claimant can show.

I believe it was Justice O'Connor who... who asked is there a difference between the regulations in title II and title XVI, and my colleagues said correctly, no, there aren't.

How about this?

How about Pauline Thomas never worked a day in her life?

She was on welfare her whole life.

She doesn't have a step four.

We treat people under this construction who have worked, as Pauline Thomas does... and I promised her I would say this, so I'm going to say it... for 27-and-a-half years, 110 quarters of coverage.

And she paid in all that time, sweeping and cleaning, and mopping bathrooms in a nursing home, and had a heart attack and went back to work.

We don't treat her, under this construction, as well as we treat a person who never worked a day in her life because then she automatically goes to step five where she's disabled.

That's the first thing.

The second thing... I don't know if the Court has an actual transcript, but how do we treat this person differently?

Pauline Thomas will get... this controversy is about $672 a month in disability benefits after 27-and-a-half years.

If she had not worked a day in her life...

Justice Ginsburg: Mr. Alter, can we go back to one thing that you said I don't think was quite right?

You said all we want is an opportunity to show.

That's not so.

If you get to step five, you win, and the Government has conceded that.

You don't have to show anything.

So you're looking for... you say if... step four, if she prevails on that, that is the end of the inquiry.

You will not... it's not incumbent on you to show anything.

Mr. Alter: In this particular case, if we get to step five, we will win.

But what we want to show is not... obviously, Ms. Thomas wants the benefits and I want to win the case.

But what we would be showing is that past work is not a proxy for another kind of work if the past work doesn't exist because we want to be able to show... it's what we already know... that the commissioner says that there is no ability to adjust to another job.

Here, if her job doesn't exist, she will have to adjust to another job whether we call it her past job or not.

What I want to...

Justice Ginsburg: She did work at this job for... well, 7 years, did she not?

Mr. Alter: Correct.

Justice Ginsburg: Because she... at one point in your brief, you said that she had been an elevator operator.

At page 42, you said for a few months.

That was wrong.

Mr. Alter: A few years, Your Honor.

I'm... my mistake.

As I was saying, if she went and applied for SSI in New Jersey, she would get $583.25 as we sit here right now.

So the difference between the 27 years of work and no work is, number one, she has a better chance, because she doesn't have to go through step four; and number two, she gets another $80.

That construction leads to a disengagement between the worker who's paying the freight so that the commissioner can have their convenience and their construction and the actual program.

The program must reflect reality.

Disability is a word, but it's a concept that comes after the commissioner has put in place a sequential evaluation.

And that sequential evaluation is based on the realities of the workplace.

It has always been.

As a matter of fact, may I point one thing out... two things actually.

Number one, the commissioner doesn't call it past work.

The statute calls it previous work.

The commissioner calls it past relevant work.

What is more irrelevant than a job that doesn't exist?

Number one.

Number two, the commissioner says that there are no vocational considerations at step four.

We don't care about whether the job exists or not.

But that's not the case because the commissioner's own ruling states for a fact that if you can't do your past job as you performed it, we can still deny you benefits at step four by saying that we... you can do your past job as it's performed in the national economy.

That's a vocational consideration.

I never performed that job that way.

My job is much harder.

Yes, but when we look into the dictionary of occupational titles, we find your job and many jobs are done in a lighter version.

You can do that job.

But I never did it before.

Vocational considerations.

SSI claimants have more rights and make the same money as disability claimants.

There's something wrong with that in terms of public policy.

Chief Justice Rehnquist: Thank you, Mr. Alter.

Mr. Alter: Thank you.

Rebuttal of Jeffrey A. Lamken

Chief Justice Rehnquist: Mr. Lamken, you have 19 minutes remaining.

Mr. Lamken: Thank you.

First, I wanted to point out that step four in fact is a measure of severity.

The question is how severe does the impairment have to be, and the statute tells you exactly how far... how severe it has to be.

It has to be so severe that the claimant is unable to do his previous work.

So the step four inquiry of previous work is a measure of severity, and the commissioner has consistently used that measure of severity to determine whether the individual is functioning at a level that is consistent with work generally.

In fact, in terms of the deference to which the commissioner's construction is entitled, this has been the commissioner's current construction from the outset of the program, both from before this... the particular provisions we've been discussing were adopted in 1967 and after.

We believe that they're clearly reflected in the commissioner's regulations from 1978, and any... any ambiguity in those regulations was cleared up in 1982 with respect... by the issuance of SSR 82-40.

The commissioner's current regulations, which became effective September 25th, now make it abundantly clear and explain in absolutely certain terms that the commissioner does not consider whether or not the previous work exists in significant numbers in the national economy.

Because that is the result of a rulemaking, because it is clearly the commissioner's well-considered and longstanding interpretation of the statute, it is entitled to deference.

Justice Ginsburg: Those regulations were subject to notice and comment rulemaking?

Mr. Lamken: Yes.

In fact, there was a very... there was a lengthy comment period, and then they went through the entire process and were issued quite a few years actually after the comment period was completed.

But yes, those were not... notice and comment rulemaking, Justice Ginsburg.

In fact, the clarification came in in response to a public comment that particular issue wasn't... was germane to the rulemaking, but it wasn't one the commissioner had initially planned to address.

But a commenter said, please clarify that in fact you do consider whether previous work exists in the national economy.

And the commissioner said, no, no, you've got it wrong.

We do not consider it.

Our longstanding view has always been we do not consider whether previous work exits in substantial numbers in the national economy.

Justice Scalia: Mr. Lamken...

Mr. Lamken: Yes.

Justice Scalia: could you clarify something?

I asked this of... of Mr. Alter, and I... I didn't quite understand his... his answer.

Do you understand the respondent's position in this case to be anything other than saying that the statute means it could be abbreviated to read this way, that he is unable, considering his age, education, and work experience, to engage in any kind of substantial, gainful work which subsists in the national economy?

Mr. Lamken: I... the respondent's position does have the effect of completing the two separate inquiries.

Justice Scalia: Well, eliminating the first entirely, does it not eliminate the first entirely?

Mr. Lamken: The one thing that... that it wouldn't take into account is that in the first inquiry, the commissioner does not take into... in the previous work inquiry, the commissioner does not take into account age, education, and work experience.

And your formulation would make age, education, and work experience relevant to all work, previous work and past work.

However, we believe that if Congress had intended...

Justice Scalia: Well, but... but if he was doing his previous work, it is impossible to find that considering his age, education, and work experience, he couldn't do it.

Justice Breyer: I mean, it's...

Mr. Lamken: I... I think that's precisely right.

It makes it... as a...

Justice Scalia: It's an impossibility anyway.

Mr. Lamken: Right.

As a structural matter, it would make it relevant, but in fact it would be rarely, if ever, a factor the commissioner would use in terms of denying disability benefits.

So it does definitely have the effect of taking what Congress set out as two separate conditions precedent and merging them to a degree which Congress probably did not intend.

Finally, for 45 years in adjudicating more than 40 million claims... and that includes approximately 200,000 step four, that is, previous work denials a year.

That's 500 denials a day for every day of every year... the commissioner has consistently applied this construction.

That construction has functioned well throughout all these years.

Accordingly, we ask the Court to reverse the judgment of the court of appeals and to reinstate the commissioner's construction.

Chief Justice Rehnquist: Thank you, Mr. Lamken.

The case is submitted.