All the Way to the United States Supreme Court: Pauline Thomas the Former Elevator Operator, the Rule of Rulemaking, and the Rule of the Last Antecedent

January 4, 2015

 

Jo Anne B. Barnhart, Commissioner of Social Security v. Pauline Thomas 540 U.S. 20 (2003)

 

There are two stories here. The first is from the non-legal perspective. The other is the legal perspective.

 

First, the non-legal perspective. Pauline Thomas worked as an elevator operator for six years until her job was eliminated in August 1995. About a year later at the age of 53 she applied for disability. Her claim was initially denied at the field office level and she appealed to an Administrative Law Judge. She claimed she was disabled due to heart disease and cervical and lumbar radiculopathy. The Administrative Law Judge concluded that she suffered from hypertension, cardiac arrhythmia, and cervical and lumbar strain/sprain. He then denied her claim because he said that even with his findings, she could still perform her former job as an elevator operator. Her Attorney argued that the Judge could not deny her application on that basis because there were next to no elevator operator jobs anymore, most all elevators now being automatic. Seven years later the United State Supreme Court ruled that this was irrelevant. So this is how most people would absorb the story from a non-attorney perspective. Now what the case says in terms of the legal perspective.

 

Thomas’s attorney argues that the phrase “in the national economy” applies to both steps four and steps five in the five step sequential process. Thus it had to be proven that both her past work and potential future work must exist in significant numbers in the national economy. Thomas’s attorney argues that to not do so would result in absurd unwanted results as with his client.

 

Justice Scalia cites Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837, 843 (1984) which is the seminal case regarding when courts do and do not have the authority to change the statutory interpretations of executive branch agencies. The Chevron rule says that the courts must grant great deference to the interpretations of executive branch agencies unless the interpretation is in direct contrast to the intent of Congress. The interpretation of the executive branch agency only has to be reasonable not perfect either in its interpretation or its application.

 

Applying the rule to this case, Justice Scalia says first says that under the standard laws of statutory interpretation and the Rule of the Last Antecedent the phrase “in the national economy” only applies to the fifth step. Second he says that while Social Security’s interpretation of the rule might seem unreasonable in some circumstances as with Pauline Thomas, it could just as well be considered reasonable in many more.  He argues that if someone can do their former job, regardless of whether it still exists or not, it is also very likely that they could do some other job.

 

Justice Scalia expounds that especially in administrative law perfection in the system is not guaranteed nor is it reasonable to expect. All of the law to some degree is based on generalizations. He cites the Social Security court system as being “probably the largest adjudicative agency in the western world . . . the need for efficiency is self-evident.”  He also adds that “virtually every legal (or other) rule has imperfect applications in particular circumstances.”

 

I have seen several instances of commentators interpreting this case to mean more than it does. This is not a Social Security Disability case. It is a Constitutional separation of powers case. The erroneous commentary seems to indicate that the ruling passes judgment on, validates, and approves of the entire fourth and fifth steps and the vocational expert testimony. While there is probably much that could be argued pro and con regarding this part of the process, this case does not address these issues.

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Damian Leone Esquire
Scranton Wilkes-Barre Northeastern Pennsylvania
Social Security Disability Attorney

(570) 677-3914

dleone@nepasocialsecurity.com