US Supreme Court Decisions

PRECEDENTIAL

Filed June 21, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3506 

PAULINE THOMAS,

Appellant

v.

COMMISSIONER OF SOCIAL SECURITY

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(Dist. Court No. 99-cv-02234)
District Court Judge: William G. Bassler

Argued March 12, 2001

Before: ALITO, RENDELL, Circuit Judges, and
SCHWARZER,* Senior District Judge.

Argued En Banc February 13, 2002

Before: BECKER, Chief Judge, SLOVITER, MANSMANN,**
SCIRICA, NYGAARD, ALITO, ROTH, McKEE, RENDELL,
AMBRO, and FUENTES, Circuit Judges.

(Opinion Filed: June 21, 2002)
_________________________________________________________________

* The Honorable William W Schwarzer, Senior District Judge for the
Northern District of California, sitting by designation.

** The Honorable Carol Los Mansmann participated in the argument and
conference of the en banc court in this appeal, but she died before the
filing of the opinion.




ABRAHAM S. ALTER (Argued)
Langton & Alter
2096 St. Georges Avenue
Rahway, NJ 07065

Counsel for Appellant

SUSAN REISS (Argued)
Social Security Administration
Office of General Counsel - Region II
Room 3904
26 Federal Plaza
New York, NY 10278

PETER G. O'MALLEY
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102

Counsel for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

Pauline Thomas worked as an elevator operator until her
position was eliminated. Claiming a heart condition and
related medical problems, she applied for Supplemental
Security Income and Disability Insurance Benefits. The
Commissioner of Social Security ("Commissioner") denied
her application, and an Administrative Law Judge ("ALJ")
also determined that Thomas was not eligible for benefits.
The United States District Court for the District of New
Jersey affirmed the ALJ's ruling and held that Thomas was
not disabled under the five-step sequential process for
determining eligibility for disability benefits because it
found that she could continue to perform her previous work
as an elevator operator. The District Court's interpretation
of the Social Security Act, however, is inconsistent with
both a careful reading of the particular provision at issue

2


and the obvious statutory scheme. According to the
Commissioner and the District Court, even if Thomas is
unable to perform any job that exists in substantial
numbers in the national economy and meets all of the other
requirements for disability and supplemental security
benefits, she may not obtain benefits because she could
perform a job -- serving as an elevator operator-- that, as
far as this record reflects, has now entirely vanished. We
disagree and therefore reverse the order of the District
Court and remand the case for further proceedings.

I.

Pauline Thomas worked as a housekeeper until 1988,
when she had a heart attack. She then worked as an
elevator operator until she was laid off on August 25, 1995,
because her position was eliminated. She applied for
Disability Insurance Benefits and Supplemental Security
Income Benefits on June 11, 1996, claiming disability
related to cardiac problems. She testified that she suffers
from irregular heartbeats, high blood pressure, dizziness,
and fatigue. Thomas also claimed that she suffers from
lower back problems caused by lumbar radiculopathy and
asserts that she fractured her right ankle on July 8, 1996.
Thomas was 54 years old at the time she applied for
benefits.

Thomas's application for Social Security benefits was
denied by the Commissioner initially and on
reconsideration. A hearing was then held before an ALJ,
who determined that Thomas was not entitled to benefits.
The ALJ found that Thomas has hypertension, cardiac
arrythmia, cervical and lumbar strain/sprain, and a
transient ischemic attack, but does not have an impairment
listed in the list of impairments presumed to be severe
enough to preclude any gainful work. Decision of ALJ at 5.
The ALJ then found that Thomas has the residual
functional capacity to perform at least light work and,
therefore, that she could perform her past relevant work as
an elevator operator. The ALJ considered Thomas's
argument that her past relevant work as an elevator
operator no longer exists in the national economy. Id. at 4-
5. Nevertheless, the ALJ decided that the regulations and

3


Social Security Ruling 82-40 exclude from Step Four of the
sequential process for determining disability any inquiry
into whether the past work actually exists. Id. at 5. The ALJ
held that Step Four considers only whether a claimant can
perform her previous job. As a result, the ALJ ruled that
Thomas was not under a "disability" and ended the
evaluation without proceeding to Step Five. Id.

The Appeals Council denied Thomas's request for review,
establishing the ALJ's decision as the final decision of the
Secretary. Thomas then challenged the ALJ's ruling in the
United States District Court for the District of New Jersey,
but the District Court held that the ALJ properly applied
the sequential process and affirmed his ruling. Thomas
appeals from this judgment.

II.

Title II of the Social Security Act, as amended, provides
Social Security Disability Insurance benefits for individuals
who are "under a disability" and meet the other eligibility
requirements. 42 U.S.C. S 423(a). Title XVI of the Act
likewise provides Supplemental Security Income benefits for
"disabled" indigent persons. 42 U.S.C. S 1382. With respect
to individuals who are not blind, the term "disability" is
defined as follows:

(1) The term "disability" means--

(A) inability to engage in any substantial gainful
activity by reason of any medically determinable
physical or mental impairment which can be expected
to result in death or which has lasted or can be
expected to last for a continuous period of not less
than 12 months. . .

. . .

(2) For purposes of paragraph (1)(A)--

(A) An individual shall be determined to be under
a disability only if his physical or mental impairment or
impairments are of such severity that he is not only
unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any

4


other kind of substantial gainful work which exists in
the national economy, regardless of whether such work
exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work. For
purposes of the preceding sentence (with respect to any
individual), "work which exists in the national
economy" means work which exists in significant
numbers either in the region where such individual
lives or in several regions of the country.

42 U.S.C. S 423(d) (emphasis added); see also 42 U.S.C.
S 1382c(a)(3) (providing the same definitions for
Supplemental Security Income benefits).

Social Security regulations provide for a sequential
evaluation process for determining whether a claimant is
under a disability. 20 C.F.R. SS 404.1520, 416.920; see also
Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). At Step
One, the Commissioner must determine whether the
claimant is currently engaging in a "substantial gainful
activity." 20 C.F.R. SS 404.1520(b), 416.920(b). If so, she is
not eligible. 20 C.F.R. SS 404.1520(b), 416.920(b). At Step
Two, the Commissioner must determine whether the
claimant has a "severe impairment." 20 C.F.R.
SS 404.1520(c), 416.920(c). If the claimant does not have a
severe impairment, then she is not eligible. 20 C.F.R.
SS 404.1520(c), 416.920(c). At Step Three, if a claimant
does not suffer from an impairment on the list of
impairments presumed to be severe enough to preclude
gainful work, the Commissioner moves to Step Four. 20
C.F.R. SS 404.1520(d), 416.920(d). Step Four requires the
Commissioner to decide whether the claimant retains the
residual functional capacity to perform her past relevant
work. 20 C.F.R. SS 404.1520(e), 416.920(e). The claimant
bears the burden of demonstrating an inability to return to
her past relevant work. Plummer, 186 F.3d at 428. If the
claimant is unable to resume her former occupation, the
evaluation moves to Step Five. Id. At Step Five, the
Commissioner has the burden of demonstrating that the
claimant is capable of performing other jobs existing in
significant numbers in the national economy. 20 C.F.R.
SS 404.1520(f), 416.920(f). At Step Five, the Commissioner

5


is to consider the claimant's vocational factors. 20 C.F.R.
SS 404.1520(f), 416.920(f).1

III.

Thomas argues that because her position as an elevator
operator was eliminated and does not appear in significant
numbers in the national economy, the ALJ should have
proceeded to Step Five of the sequential process. We agree
that at Step Four, Thomas should have been permitted to
show that her previous work as an elevator operator no
longer exists in substantial numbers in the national
economy.

At Step Four of the sequential process, the Commissioner
must determine whether the claimant can perform her past
relevant work. Based on the language of the relevant
provisions of the Social Security Act and the broader
statutory scheme, we hold that, for the purposes of Step
Four of the evaluation process, a claimant's previous work
must be substantial gainful work which exists in the
national economy. Thus, a claimant may proceed to Step
Five by showing either that she cannot perform her past
relevant work or that the previous work is not substantial
gainful work that exists in the national economy.
_________________________________________________________________

1. The regulations describe Steps Four and Five as follows:

(e) Your impairment(s) must prevent you from doing past relevant
work. If we cannot make a decision based on your current work
activity or on medical facts alone, and you have a severe
impairment(s), we then review your residual functional capacity and
the physical and mental demands of the work you have done in the
past. If you can still do this kind of work, we will find that you are
not disabled.

(f) Your impairment(s) must prevent you from doing any other work.
(1) If you cannot do any work you have done in the past because
you have a severe impairment(s), we will consider your residual
functional capacity and your age, education, and past work
experience to see if you can do other work. If you cannot, we will
find you disabled . . . .

20 C.F.R. SS 404.1520(e) and (f); 20 C.F.R.SS 416.920(e) and (f); see also
20 C.F.R. S 404.1560; 20 C.F.R. S 416.960.

6


The statute defines disability as follows: "An individual
shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work
but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy. . . ." 42 U.S.C.
S 423(d) (emphasis added). Thus, an individual is disabled
only if "he is not only unable to do his previous work but
cannot . . . engage in any other kind of substantial gainful
work which exists in the national economy," i.e., any "work
which exists in significant numbers either in the region
where such individual lives or in several regions of the
country." 42 U.S.C. S 423(d)(2)(A) (emphasis added). The
phrase "any other" in this provision is important for present
purposes. The use of this phrase makes clear that an
individual's "previous work" was regarded as a type of
"substantial gainful work which exists in the national
economy." When a sentence sets out one or more specific
items followed by "any other" and a description, the specific
items must fall within the description. For example, it
makes sense to say: "I have not seen a tiger or any other
large cat" or "I have not read Oliver Twist or any other novel
which Charles Dickens wrote." But it would make no sense
to say, "I have not seen a tiger or any other bird" or "I have
not read Oliver Twist or any other novel which Leo Tolstoy
wrote." Therefore, if we presume that the statutory
provisions at issue here are written in accordance with
correct usage, a claimant's ability to perform "previous
work" is not disqualifying if that work no longer"exists in
the national economy."2 This feature of the statutory
language is unambiguous.
_________________________________________________________________

2. We are aware that the Ninth and Sixth Circuits have opined that
subsection (d)(2) is ambiguous. In Quang Van Han v. Bowen, 882 F.2d
1453 (9th Cir. 1989), the Court wrote that the interpretation that we
have just set out "is a reasonable interpretation of the statute, but not
the only one. It is also reasonable to construe`previous work' and `other'
work as separate categories, neither a subset of the other." Id. at 1457
(emphasis in original); see also Garcia v. Secretary of Health and Human
Services, 46 F.3d 552, 558 (6th Cir. 1995) (same). In response, we can
say only that for the reasons we have attempted to explain, we do not
believe that this conclusion is consistent with standard usage. The
language of subparagraph (d)(2) is not ambiguous.

7


Moreover, even if the statutory language were
ambiguous, our interpretation would not change. Other
things being equal, a statute should be read to avoid
absurd results. In re First Merchants Acceptance
Corporation v. J.C. Bradford & Co., 198 F.3d 394, 402 (3d
Cir. 1999). Here, there is no plausible reason why Congress
might have wanted to deny benefits to an otherwise
qualified person simply because that person, although
unable to perform any job that actually exists in the
national economy, could perform a previous job that no
longer exists.

It is true that a literal interpretation of the Social
Security regulations setting out the five-step evaluation
process seems to lead to this result. The regulation
describing Step Four states:

Your impairment(s) must prevent you from doing past
relevant work. . . . If you can still do this kind of work,
we will find that you are not disabled.

20 C.F.R. S 404.1520(e); see also 20 C.F.R. S 416.920(e).
Only if a claimant can get by Step Four do the regulations
call for an inquiry into whether the claimant can perform
any job that actually exists. See 20 C.F.R.S 404.1520(f); 20
C.F.R. S 416.920(f).

Mechanically following the regulations, the ALJ in this
case found that Thomas retained the residual functional
capacity to perform her previous job as an elevator
operator. Without giving Thomas an opportunity to present
evidence concerning the existence of elevator operator
positions, the ALJ ended the evaluation at Step Four.3 He
_________________________________________________________________

3. The Commissioner asserted in his brief that the position of "elevator
operator" is listed in the most recent edition of the Department of Labor's
Dictionary of Occupation Titles (rev. 4th ed. 1991). The job titles of
"elevator operator" (Code 388.663-010) and"elevator starter" (Code
388.367-010) do indeed appear in the Dictionary of Occupation Titles, but
these occupations were last studied and updated in 1977. The
Commissioner further claimed that the Occupational Information
Network (O*Net), which is being developed by the Department of Labor
as an electronic replacement for the Dictionary of Occupation Titles, also
lists the job of elevator operator. Our own search of O*Net, however, at

8


rejected Thomas's argument that, because the position of
elevator operator is now obsolete, she should be permitted
to proceed to Step Five.

Although we acknowledge that the literal language of the
regulation governing Step Four appears to support the
ALJ's decision to terminate the inquiry at Step Four, this
regulation should be read, if possible, so as not to conflict
with the statute it implements, see, e.g., Joy Technologies,
Inc. v. Secretary of Labor, 99 F.3d 991, 995 (10th Cir.
1996), and if there is such a conflict, the regulation must
yield.4 See United States v. Mead Corp., 533 U.S. 218, 226
(2001) (even when an agency is expressly delegated
authority to elucidate a specific provision of a statute by
regulation, a court should not follow a regulation that is
"manifestly contrary to the statute"); Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 844
(1984); see also Mead Corp., 533 U.S. at 226; Heckler v.
_________________________________________________________________

<http://online.onetcenter.org/main.html> turned up no occupations
entitled "elevator operator" or "elevator starter." Nor were there cross-
references to those positions as listed in the Dictionary of Occupation
Titles. The 2000-2001 edition of the Bureau of Labor Statistics's
Occupational Outlook Handbook also does not contain positions
resembling an elevator operator or starter. The ALJ refused to consider
Thomas's arguments regarding the status of elevator operator as an
occupation, so we do not have any findings as to whether or not that
occupation remains in existence.

4. We are not certain that the regulation concerning Step Four is
irreconcilable with the language of the statute. The situation arguably
presented here -- where the only job that a claimant may be able to
perform is a past job that is now obsolete -- is undoubtedly rare, and it
is likely that this situation was not in the minds of those who drafted
and promulgated the regulation. See Kolman v. Sullivan, 925 F.2d 212,
213 (7th Cir. 1991) ("The failure of the regulation to require that the job
constituting the applicant's past work exist in significant numbers
probably just reflects an assumption that jobs that existed five or ten or
even fifteen years ago still exist."). As noted, a regulation should be read
if possible in a way that does not conflict with the statute it implements
and in a way that avoids absurd results. If, however, the regulation must
be interpreted as the Commissioner insists, we would hold that the
regulation and any Social Security rulings embodying that interpretation
conflict with the statute and are, to the extent of the conflict, invalid.

9


Campbell, 461 U.S. 458, 466 (1983). The problem with a
literal reading of the regulation regarding Step Four is that
it sets up an artificial roadblock to an accurate
determination of whether Thomas can "engage in any . . .
kind of substantial gainful work which exists in the
national economy." 42 U.S.C. S 423(d)(2). If Thomas can
show that elevator operator positions really are obsolete,
the fact that she still possesses the physical or mental
capability to perform the duties of an elevator operator does
not mean that she can engage in any substantial gainful
activity that actually exists. Accordingly, the ALJ should
have allowed Thomas to present evidence on whether
elevator operator positions are obsolete. If Thomas had
made such a showing, the ALJ then should have proceeded
to Step Five of the sequential evaluation to ascertain
whether Thomas's medical impairments prevent her from
engaging in any work that actually exists.

Step Four was designed to facilitate the determination of
whether a claimant has the capacity to work, because it is
easier to evaluate a claimant's capacity to return to a
former job than to decide whether any jobs exist for a
person with the claimant's impairments and vocational
background. Nevertheless, we cannot lose sight of the fact
that the touchstone of "disability" is the inability to engage
in any substantial gainful activity that exists in the national
economy. 42 U.S.C. S 423(d)(2). Because a rigid application
of Step Four in this case could defeat Congress's
unambiguous intent, we must reject such an approach. See
Mead Corp., 533 U.S. at 226.

The Commissioner argues that permitting a claimant to
proceed to Step Five if she can show that her past job does
not exist in significant numbers in the national economy
would convert disability benefits into unemployment
benefits. We find this argument unconvincing. Awarding
disability benefits to a claimant who, as a result of a
qualifying impairment, cannot perform any job that actually
exists is hardly the equivalent of providing unemployment
compensation.5 By contrast, denying benefits because a
_________________________________________________________________

5. A claimant cannot even reach Step Four unless she makes a threshold
showing of a medically severe physical or mental impairment. At Step

10


claimant could perform a type of job that does not exist
seems nonsensical.

In our view, the most perceptive precedent addressing the
question at hand is Kolman v. Sullivan, 925 F.2d 212 (7th
Cir. 1991). The holding in that case -- that the ALJ should
have continued to Step Five because the claimant's past job
was a temporary training position -- is inapplicable here,
but the Kolman Court did mention in dicta that, even if a
claimant's past job was a permanent position, an ALJ
would be required to move to Step Five if that past job had
disappeared. As the Kolman Court noted, the fact that a
claimant could perform a past job that no longer exists
would not be "a rational ground for denying benefits."
Kolman, 925 F.2d at 213. The Court observed:

The failure of the regulations to require that the job
constituting the applicant's past work exist in
significant numbers probably just reflects an
assumption that jobs that existed five or ten or even
fifteen years ago still exist. But if the assumption is
dramatically falsified in a particular case, the
administrative law judge is required to move on to the
next stage and inquire whether some other job that the
applicant can perform exists in significant numbers
today somewhere in the national economy.

Id. at 213-14.6
_________________________________________________________________

Two, if a claimant does not have "any impairment or combination of
impairments which significantly limits [her] physical or mental ability to
do basic work activities," she does not have a severe impairment and is
therefore not disabled. 20 C.F.R. S 404.1520(c); 20 C.F.R. S 416.920(c).
In addition, a claimant's burden of proving that her previous work no
longer exists is hardly insubstantial. Finally, in the vast majority of
cases, a claimant who is found to have the capacity to perform her past
work also will have the capacity to perform other types of work. To
remain faithful to the statutory scheme, however, the ALJ should move
to Step Five and dispose of the case at that stage rather than cutting off
the evaluation simply because the claimant has the capacity to perform
a job that may not exist.

6. In subsequent cases, the Seventh Circuit has neither implemented nor
disavowed this dicta. To be sure, in Knight v. Chater, 55 F.3d 309 (7th

11


We acknowledge that the Commissioner's position is
supported by Rater v. Chater, 73 F.3d 796 (8th Cir. 1996),
and Pass v. Chater, 65 F.3d 1200 (4th Cir. 1995), but
neither opinion is persuasive. Both decisions rely primarily
on the Social Security regulations and on Social Security
rulings. See Rater, 73 F.3d at 798-99 (relying on Social
Security Ruling 82-61); Pass, 65 F.3d at 1204-05 (relying
on Social Security Rulings 82-61 and 82 40). Neither
opinion, in our judgment, devotes sufficient attention to the
language of the statute or the statutory scheme.

IV.

The dissent argues that our reasoning in this case is
"flawed in six ways," but the dissent's arguments are
unpersuasive. The dissent asserts that the statutory
language supports its position, accusing us of "rewriting
the statute," "contort[ing] the statutory language,"
"reject[ing] its literal meaning," and"engraft[ing]" upon it an
"additional component." Dissent at 15, 17. In the words of
the dissent, the statutory language is "perfectly clear," it
"permits no other conclusion," it "clearly mandates" the
result reached by the dissent, and its meaning is"plain."
Id. Notably absent from the dissent, however, is any
attempt to provide reasoned support for these charges. In
particular, the dissent makes no effort to respond to our
argument that the statutory language, when read in
accordance with standard rules of usage, prescribes that
the claimant's "previous work" must still"exist[ ] in the
national economy." See supra at 6.

Three of the dissent's arguments are beside the point
because they are based not on the statute, but on the
_________________________________________________________________

Cir. 1995), the Court affirmed the denial of benefits sought by a claimant
who argued that she should have been permitted to bypass Step Four
because her previous position as a keypunch operator had become
obsolete with the advent of computers. The Court stated, however, that
some of the claimant's other previous jobs also qualified as past relevant
work that the claimant still had the capacity to perform, and
consequently the Court was not required to reach the claimant's
argument about her now-extinct previous job. Id. at 316.

12


regulations. The dissent contends that "Step Four requires
the Commissioner to decide whether the claimant retains
the residual functional capacity to perform her past
relevant work"; that "it is not until Step Five that vocational
factors (i.e., ability to access other gainful work) are
considered"; and that "Steps Four and Five are quite clear."
Dissent at 15, 16. Our decision, however, is based not on
the regulations but on the statute. To the extent that the
regulations are inconsistent with the statute, they are
invalid. Thus, the dissent's reliance on the regulations does
not respond to the rationale of our decision.

The dissent argues that the Seventh Circuit's decision in
Kolman is the "linchpin" of our decision and that it can be
"distinguished" from the present case. Dissent at 18. This
argument is puzzling because our opinion plainly
acknowledges that "[t]he holding [in Kolman] is inapplicable
here." Supra at 11. Instead of basing our decision on
Kolman, we simply quoted what we recognized as"dicta" in
that opinion. Id.

The dissent warns that our interpretation of the statute
"would wreak havoc with the evidentiary aspects of the
administrative process" by making "vocational concerns"
(i.e., whether elevator operator jobs still exist) a part of Step
Four. Dissent at 16. This is, to put the point mildly,
hyperbole. Cases like the present one are rare, and
inquiring whether a job such as that of an elevator operator
still exists in the national economy is not complex. We have
no doubt that the Social Security System will be able to
cope with this decision.

Finally, the dissent attempts to provide a plausible
reason why Congress might have wanted to deny benefits to
a claimant on the ground that the claimant can perform a
previous job that no longer exists. According to the dissent,
"[p]revious work essentially serves as a proxy for the ability
to perform work." Dissent at 16. Apparently, this means
that Congress might have reasoned that if a claimant is
able to perform previous work that no longer exists, it is
likely that the claimant is also able to perform other work
that does exist. Undoubtedly this is true in most cases --
but it may not always be true, and it may not be true in
this case. The dissent thus provides no answer to the

13


question why Congress might have wanted to preclude
benefits for a claimant who is able to perform previous
work that no longer exists but is unable to perform any
work that does exist.

V.

For the foregoing reasons, we reverse the order of the
District Court and remand for further proceedings.

14


RENDELL, Circuit Judge, dissenting, with whom Judges
Sloviter and Roth join:

As the majority notes, the Administrative Law Judge
("ALJ") determined that Pauline Thomas had the"residual
functional capacity to perform at least light work and,
therefore, she could perform her past relevant work as an
elevator operator." Maj. Op. at 3. Under the statutory
framework, that finding dictated a determination that
Thomas was not disabled. I respectfully dissent from the
majority's view to the contrary and believe its reasoning to
be flawed in six ways.

First, the statutory language permits no other conclusion
than that Thomas was disabled. It requires that disability
be based on an initial finding that an individual is"unable
to do his previous work." 42 U.S.C. S 423(d)(2)(A). If that
condition is met, then the ALJ is to look into the ability to
engage in "any other kind of substantial gainful work which
exists in the national economy." Id. The majority concludes
that the second condition's reference to gainful employment
existing in the national economy must be engrafted upon
the perfectly clear first requirement, thus rewriting the
statute. The majority's holding so states: "We hold that, for
the purposes of Step Four of the evaluation process, a
claimant's previous work must be substantial gainful work
which exists in the national economy." Maj. Op. at 6.
However, the statutory scheme clearly mandates that since
Pauline Thomas is able to perform an elevator operator's
work, found to be light work, she is not disabled as a
matter of law.

Second, by the majority's own admission, Step Four
requires the Commissioner to decide whether the claimant
retains the residual functional capacity to perform her past
relevant work. 20 C.F.R. SS 404.1520(e), 416.920(e) (Maj.
Op. at 6). Step Four is not an inquiry into employability or
employment opportunity, but, rather, it is an inquiry into
physical capacity. See Pass v. Chater, 65 F.3d 1200, 1204
(4th Cir. 1995) ("Past relevant work in the regulatory
scheme is a gauge by which to measure the physical and
mental capabilities of an individual and the activities that
he or she is able to perform."); see also Social Security
Ruling 82-61 (explaining that past relevant work is

15


considered for the purpose of determining whether the
claimant has the "capacity [ ] to perform the physical and
mental demands of the kind of work he or she has done in
the past"). Pauline Thomas has been found to have the
physical capacity to perform the job of elevator operator,
concededly her past relevant work. That determination ends
the inquiry.

Third, it is not until Step Five that vocational factors (i.e.,
ability to access other gainful work) are considered. 20
C.F.R. SS 404.1520(f), 416.920(f). Again, the majority notes
this. But the majority fails to note that its interpretation of
the statute would make vocational concerns, and the need
for experts, part of Step Four as well. It would, and will,
wreak havoc with the evidentiary aspects of the
administrative process.1 This represents a radical change in
the regulatory scheme.

Fourth, the majority states that "there is no plausible
reason why Congress might have wanted to deny benefits"
to someone in Pauline Thomas's position -- "an otherwise
qualified person, although unable to perform any job that
actually exits in the national economy, could perform a
previous job that no longer exists." Maj. Op. at 8. I take
issue with that assertion, thinking it quite plausible that
Congress decided that if a claimant still retained the
physical and mental capacity to do whatever work she
previously did, the inquiry should end there with a finding
that claimant is not disabled. Previous work essentially
serves as a proxy for the ability to perform work, not as
proof that the claimant can be employed in that particular
job. Congress may not, in fact, have considered the problem
_________________________________________________________________

1. The claimant carries the burden until Step Five. Bowen v. Yuckert,
482 U.S. 137, 146 n.5 (1987). At Step Five "[t]he ALJ must show there
are other jobs existing in significant numbers in the national economy
which the claimant can perform, consistent with her medical
impairments, age, education, past work experience, and residual
functional capacity. . . . The ALJ will often seek the assistance of a
vocational expert at this fifth step." Plummer v. Apfel, 186 F.3d 422, 428
(3d Cir. 1999) (citations omitted). The Supreme Court explained: "This
allocation of burdens of proof is well within the Secretary's `exceptionally
broad authority' under the statute." Bowen , 482 U.S. at 146 n.5 (quoting
Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981)).

16


of job obsolescence, but, contrary to what Judge Posner
suggests in Kolman v. Sullivan, 925 F.2d 212 (7th Cir.
1991), it is not up to the courts to fill that alleged legislative
void. Further, the absence of any particular vocation is not
really a void at Step Four, given that the statutory scheme
limits the inquiry into ability and does not permit
consideration of matters other than the demands of the
previous job.

Fifth, the statute, read according to its plain meaning, is
quite consistent with the regulations as promulgated. Yet
the majority, having contorted the statutory language and
rejected its literal meaning, then finds it must similarly
reject a "mechanical" reading of the regulations. But in so
doing it fails to state how the regulations can possibly be
read any other way; Steps Four and Five are quite clear. In
fact, the majority's decision to reject the regulatory scheme
of Steps Four and Five as outlined in the regulations is
unprecedented. Nor does the majority seek to justify its
reasoning based on its unwillingness to defer to the
Agency's authority to regulate. Indeed, that would be
contrary to the Supreme Court's recent ruling in Barnhart
v. Walton, 122 S. Ct. 1265 (2002), which instructs,
addressing specifically a Social Security Administration
interpretation:

[I]f the statute speaks clearly "to the precise question
at issue," we "must give effect to the unambiguously
expressed intent of Congress." If, however, the statute
"is silent or ambiguous with respect to the specific
issue, we must sustain the Agency's interpretation if it
is "based on a permissible construction" of the Act.

Id. at 1269 (quoting Chevron U.S.A. Inc. v. Natural Res. Def.
Council, 467 U.S. 837, 842-43 (1984)).

In Walton, the Supreme Court found that 42 U.S.C.
S 423(d)(1)(A) was ambiguous and concluded that the Social
Security Administration's interpretation of ambiguous
provisions of the Statute were reasonable, and therefore
permissible. Id. at 1270-73. The Court explained: "The
[Social Security Act's] complexity, the vast number of
claims that it engenders, and the consequent need for
agency expertise and administrative experience lead us to

17


read the statute as delegating to the Agency considerable
authority to fill in, through interpretation, matters of detail
related to its administration." Id. at 1273. Here, one can
only conclude that if the majority's position is credited, the
statute is at best ambiguous. Accordingly, the Agency's
interpretation should be accorded great weight. And, here,
not only has the Agency spoken in formal regulatory terms,
it has also issued "Program Policy Statements" regarding
this very issue. In addressing the issue of whether previous
work in a foreign country should be considered past
relevant work, the Agency warned that requiring the
existence of similar jobs in the United States would
improperly "elevate[ ] an element of the fifth step of the
sequential evaluation process, availability of work in the
national economy, to the fourth step which only deals with
the claimant's ability to do his or her past work." Social
Security Ruling 82-40. See also Social Security Ruling 82-
61 (noting "the intent of Congress that there be a clear
distinction between disability benefits and unemployment
benefits"); Social Security Ruling 82-62 (explaining that
past relevant work is considered in order to determine
whether the claimant is able to perform "the functional
activities required in [that] work"). Therefore, the majority
has erred by failing to consider the Agency's view of the
statutory language and scheme.

Sixth, I believe that other courts have distinguished the
decision of the Court of Appeals for the Seventh Circuit in
Kolman, on which the majority relies, and I submit that it
should not be the linchpin here. Unlike the majority, I find
the Court of Appeals for the Fourth Circuit's opinion in
Pass v. Chater, 65 F.3d 1200 (4th Cir. 1995), to be well-
reasoned and persuasive.2 In Pass, the court concluded
_________________________________________________________________

2. The majority summarily disposes of the Court of Appeals for the
Fourth Circuit's reasoning in Pass, as well as the Court of Appeals for
the Eighth Circuit's reasoning in Rater v. Chater, 73 F.3d 796 (8th Cir.
1996), on the grounds that they "rely primarily on the Social Security
regulations and on Social Security rulings." Maj. Op. at 12. While I
disagree with this characterization, even if it is true, this is hardly an
indictment. As the Supreme Court has explained:"[T]he fact that the
Agency previously reached its interpretation through means less formal
than `notice and comment' rulemaking, see 5 U.S.C. S 553, does not
automatically deprive that interpretation of the judicial deference
otherwise its due." Walton, 122 S. Ct. at 1271. Therefore, the courts'
consideration of regulations and rulings does not undermine the
persuasiveness of their decisions.

18


that although the applicant's previous job as a gate guard
may not exist in the national economy it is still considered
as past relevant work because the focus of Step Four is the
claimant's physical and mental capabilities. Id . at 1207.
Also, the Court of Appeals for the Seventh Circuit seems to
have retreated from Kolman somewhat in Knight v. Chater,
55 F.3d 309 (7th Cir. 1995), where it distinguished the
facts of the case before it on the grounds that the
claimant's job as a keypunch operator-clerk was not
"makeshift" or "temporary." Id. at 315.3

Admittedly, Pauline Thomas's situation has visceral
appeal because of the perceived low level of exertion
required to perform her former work and the obsolescence
of her former job. However, the point at Step Four is not
that she can actually be employed in her past job, but that
she is able to do a certain level of work. If Congress and the
regulatory body charged with implementing the statutory
scheme have determined that Pauline Thomas should not
be considered "disabled" if she still has the ability,
physically and mentally, to do what she had previously
done, are we entitled to graft additional requirements on
the statutory and regulatory scheme? While we might like
to do so, or think it somehow makes sense to do so, we
cannot provide a remedy where Congress and the Agency
have not. It is for Congress to alter the statute, if indeed it
believes that the statutory scheme, and specifically Step
Four, should be altered in such a way as to deal with the
issue of job obsolescence.
_________________________________________________________________

3. In support of its claim that the Court of Appeals for the Seventh
Circuit "has neither implemented nor disavowed" its dicta in Kolman, the
majority says that in Knight the court "did not reach the claimant's
argument about her now-extinct previous job." Maj. Op. at 11-12 n.6.
While it may not have conducted an in depth analysis of her argument,
it did specifically rule out the applicability of its Kolman reasoning when
it could have expanded its reach: "Ms. Knight's former job as a keypunch
operator-clerk was neither a temporary nor training job. Therefore,
Kolman does not apply here." Knight, 55 F.3d at 315.

19


A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

20

 

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