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Sam Heldman


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Tuesday, October 14, 2003
I suppose you all are wondering

…where my predictions are for this week. Well here they are:

No. 02-763 Barnhart v. Thomas

Jo Anne Barnhart, as the Commissioner of Social Security, has the privilege of being the named defendant in many a lawsuit. For the same reason, she also winds up in the Supreme Court quite often. In this case, Pauline Thomas had been a housekeeper until she had a heart attack. Thereafter, she worked as an elevator operator until her position was eliminated. She applied for Social Security disability. The Commissioner determined that she was not totally disabled because she was still able to perform her previous work as an elevator operator. The Third Circuit determined that the job of elevator operator had disappeared from the national economy and that Ms. Thomas was therefore disabled.

The term “disability” in the Social Security Act, as relevant to this case, is defined as:

    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. . .


    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, 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.

This is a close question. On the one hand, why is someone who is able to perform a particular job disabled if she gets laid off from that job? On the other hand, what if the job has such an incredibly low level of effort that someone who would otherwise be totally disabled could do it, but then that job no longer exists? The minimum level of effort necessary to do any job would therefore be effectively raised to slightly more than the level of effort the person can perform.

If the Supreme Court--which still has elevator operators by the way--can be convinced that the job of elevator operator has disappeared from the national economy, the respondents have a chance. Even so, the text of the regulations appears to create a loophole for this situation. I don’t think the Court will find its role is to fill in this particular hole. I predict the Court will REVERSE.

No. 02-682 Verizon Communications, Inc. v. Trinko

This case is about whether local telephone customers have standing to sue Verizon for breaching its interconnection agreement with AT&T. The subscribers allege that because Verizon breached the agreement, they got poor telephone service, and can sue under the Communications Act. The district court didn’t think so, and dismissed the complaint. The Second Circuit reversed in part. Because I really have to get to work, and because I think that Mr. Trinko just drummed up this lawsuit to force a settlement, I think the Court will REVERSE.