UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BERDIE GIATTINA, personal representative for the Estate of Thomas E. Giattina, Plaintiff-Appellant, No. 96-1641 v.
SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, District Judge. (CA-94-1263)
Submitted: June 24, 1997
Decided: September 26, 1997
Before HALL, WILLIAMS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Dallas K. Mathis, Judith Mathis, MATHIS & MATHIS, P.C., Arling- ton, Virginia, for Appellant. James A. Winn, Acting Chief Counsel, Region III, Margaret J. Krecke, Assistant Regional Counsel, Office of General Counsel, SOCIAL SECURITY ADMINISTRATION, Phila- delphia, Pennsylvania; Helen Fahey, United States Attorney, Mere- dith Manning, Assistant United States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Thomas E. Giattina1 appeals the district court's order affirming the Commissioner's decision that his disability insurance benefits are subject to the offset provisions of 20 C.F.R. § 404.408 (1996)2 based on his receipt of a federal pension. Appellant claims on appeal that _________________________________________________________________ 1 Mr. Giattina died during the pendency of this appeal. This court granted his widow's motion for substitution of parties. Mrs. Giattina has continued to prosecute this appeal and will be referred to as Appellant. 2 The offset provision codified at 42 U.S.C. § 424a (1994) is imple- mented by 20 C.F.R. § 404.408 (1996). The regulation reads in pertinent part:
(a) When reduction required. Under section 224 of the Act, a disability insurance benefit to which an individual is entitled under section 223 of the Act for a month . . . is reduced . . . if:
...
(2) The individual first became entitled to disability insurance benefits after August 1981 based on a disability that began after February 1981 and
(i) The individual entitled to the disability insurance bene- fit is also, for that month, concurrently entitled to a periodic benefit (including worker's compensation or any other pay- ments based on a work relationship on account of a total or partial disability (whether or not permanent) under a law or plan of the United States . . . and
(ii) The individual has not attained age 65.
2 the Commissioner erred in interpreting the language of her own regulations.3 In light of the deference accorded the Commissioner in such matters, we affirm the district court's order.
Giattina was stricken with retinitis pigmentosa in 1965 and was sta- tutorily blinded by the disease. Although he was entitled to disability insurance benefits for nearly two years, that entitlement ended when he returned to work with the Department of Commerce. Twenty years of service earned him a federal disability retirement pension. Shortly after he reached 55 years of age, Giattina left the Department of Com- merce and again applied for disability insurance benefits. After a tor- tured administrative procedural history, the Commissioner issued a final decision concluding that, based on § 404.408, Giattina's disabil- ity insurance benefits would be offset by his federal pension. In doing so, the Commissioner interpreted the language "first became entitled to . . . benefits" embodied in the regulation to mean the date of onset of entitlement to benefits for any given period of disability. In addi- tion, the Commissioner further interpreted the regulations as properly treating Giattina's blindness as two separate disabilities.
The Commissioner's interpretation of her own regulations is enti- tled to deference from the courts. United States v. Boynton, 63 F.3d 337, 342 (4th Cir. 1995). Nonetheless, "the interpretation will not be enforced if it is plainly erroneous or inconsistent with the regulation's language or the intent of the regulation as manifest by the agency at the time of the regulation's promulgation." Id. In this case, the issue reduces to whether the Commissioner's interpretation of § 404.408 was plainly erroneous or inconsistent with the regulation's language. Appellant contends that neither clause of § 404.408(a)(2) accurately described Giattina. On this basis, the Appellant suggests that the Commissioner's interpretation subjecting Giattina to the offset provi- sion is erroneous.
Appellant argues that two elements of the Commissioner's inter- pretation are erroneous. In Appellant's estimation, Giattina either "first became entitled to . . . benefits" in March 1966--well before _________________________________________________________________ 3 Appellant does not challenge the validity of § 404.408 itself. There- fore, the question of whether that regulation constitutes a valid interpre- tation of the governing statute, 42 U.S.C. § 4249, is not before us.
3 August 1981--"based on" his blindness (his"disability"), which began in August 1965--well before February 1981. See 20 C.F.R. § 404.408(a)(2). If either is true, in Appellant's view, the offset provi- sion does not apply. She urges that the Commissioner's interpretation of the language "first became entitled to . . . benefits" was in error and that the Commissioner erred in considering Giattina's blindness as two separate disabilities.
The Commissioner's interpretation is not plainly erroneous or inconsistent. Although "first" often suggests sequential ranking, the Commissioner may properly employ the term to mean"beginning" or "at the outset," as in "first off," describing the onset of a given disabil- ity. See Random House Webster's College Dictionary (1992).4 It may well be that Appellant's interpretation of the regulation gives the more obvious meaning to the word "first" and is therefore "more rea- sonable." Even so, Appellant has not discharged her burden of show- ing that the agency's interpretation is plainly erroneous. Allen v. Bergland, 661 F.2d 1001, 1005 (4th Cir. 1981) (citing United States v. Larionoff, 431 U.S. 864 (1977)). In light of the deference to be afforded her interpretation, we conclude that the Commissioner did not adopt a plainly erroneous or inconsistent reading of the regulation by construing "first became entitled to . . . benefits" to mean as of the date of the beginning of the current eligibility of benefits as opposed to some later date during the claimant's entitlement.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BERDIE GIATTINA, personal representative for the Estate of Thomas E. Giattina, Plaintiff-Appellant, No. 96-1641 v.
SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, District Judge. (CA-94-1263)
Submitted: June 24, 1997
Decided: September 26, 1997
Before HALL, WILLIAMS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Dallas K. Mathis, Judith Mathis, MATHIS & MATHIS, P.C., Arling- ton, Virginia, for Appellant. James A. Winn, Acting Chief Counsel, Region III, Margaret J. Krecke, Assistant Regional Counsel, Office of General Counsel, SOCIAL SECURITY ADMINISTRATION, Phila- delphia, Pennsylvania; Helen Fahey, United States Attorney, Mere- dith Manning, Assistant United States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Thomas E. Giattina1 appeals the district court's order affirming the Commissioner's decision that his disability insurance benefits are subject to the offset provisions of 20 C.F.R. § 404.408 (1996)2 based on his receipt of a federal pension. Appellant claims on appeal that _________________________________________________________________ 1 Mr. Giattina died during the pendency of this appeal. This court granted his widow's motion for substitution of parties. Mrs. Giattina has continued to prosecute this appeal and will be referred to as Appellant. 2 The offset provision codified at 42 U.S.C. § 424a (1994) is imple- mented by 20 C.F.R. § 404.408 (1996). The regulation reads in pertinent part:
(a) When reduction required. Under section 224 of the Act, a disability insurance benefit to which an individual is entitled under section 223 of the Act for a month . . . is reduced . . . if:
...
(2) The individual first became entitled to disability insurance benefits after August 1981 based on a disability that began after February 1981 and
(i) The individual entitled to the disability insurance bene- fit is also, for that month, concurrently entitled to a periodic benefit (including worker's compensation or any other pay- ments based on a work relationship on account of a total or partial disability (whether or not permanent) under a law or plan of the United States . . . and
(ii) The individual has not attained age 65.
2 the Commissioner erred in interpreting the language of her own regulations.3 In light of the deference accorded the Commissioner in such matters, we affirm the district court's order.
Giattina was stricken with retinitis pigmentosa in 1965 and was sta- tutorily blinded by the disease. Although he was entitled to disability insurance benefits for nearly two years, that entitlement ended when he returned to work with the Department of Commerce. Twenty years of service earned him a federal disability retirement pension. Shortly after he reached 55 years of age, Giattina left the Department of Com- merce and again applied for disability insurance benefits. After a tor- tured administrative procedural history, the Commissioner issued a final decision concluding that, based on § 404.408, Giattina's disabil- ity insurance benefits would be offset by his federal pension. In doing so, the Commissioner interpreted the language "first became entitled to . . . benefits" embodied in the regulation to mean the date of onset of entitlement to benefits for any given period of disability. In addi- tion, the Commissioner further interpreted the regulations as properly treating Giattina's blindness as two separate disabilities.
The Commissioner's interpretation of her own regulations is enti- tled to deference from the courts. United States v. Boynton, 63 F.3d 337, 342 (4th Cir. 1995). Nonetheless, "the interpretation will not be enforced if it is plainly erroneous or inconsistent with the regulation's language or the intent of the regulation as manifest by the agency at the time of the regulation's promulgation." Id. In this case, the issue reduces to whether the Commissioner's interpretation of § 404.408 was plainly erroneous or inconsistent with the regulation's language. Appellant contends that neither clause of § 404.408(a)(2) accurately described Giattina. On this basis, the Appellant suggests that the Commissioner's interpretation subjecting Giattina to the offset provi- sion is erroneous.
Appellant argues that two elements of the Commissioner's inter- pretation are erroneous. In Appellant's estimation, Giattina either "first became entitled to . . . benefits" in March 1966--well before _________________________________________________________________ 3 Appellant does not challenge the validity of § 404.408 itself. There- fore, the question of whether that regulation constitutes a valid interpre- tation of the governing statute, 42 U.S.C. § 4249, is not before us.
3 August 1981--"based on" his blindness (his"disability"), which began in August 1965--well before February 1981. See 20 C.F.R. § 404.408(a)(2). If either is true, in Appellant's view, the offset provi- sion does not apply. She urges that the Commissioner's interpretation of the language "first became entitled to . . . benefits" was in error and that the Commissioner erred in considering Giattina's blindness as two separate disabilities.
The Commissioner's interpretation is not plainly erroneous or inconsistent. Although "first" often suggests sequential ranking, the Commissioner may properly employ the term to mean"beginning" or "at the outset," as in "first off," describing the onset of a given disabil- ity. See Random House Webster's College Dictionary (1992).4 It may well be that Appellant's interpretation of the regulation gives the more obvious meaning to the word "first" and is therefore "more rea- sonable." Even so, Appellant has not discharged her burden of show- ing that the agency's interpretation is plainly erroneous. Allen v. Bergland, 661 F.2d 1001, 1005 (4th Cir. 1981) (citing United States v. Larionoff, 431 U.S. 864 (1977)). In light of the deference to be afforded her interpretation, we conclude that the Commissioner did not adopt a plainly erroneous or inconsistent reading of the regulation by construing "first became entitled to . . . benefits" to mean as of the date of the beginning of the current eligibility of benefits as opposed to some later date during the claimant's entitlement.
The same is true of the Commissioner's conclusion that Giattina's second application for benefits constitutes a second, separate disabil- ity, which began only with his inability to continue"substantial gain- ful activity" in May of 1988. Giattina was "disabled" in 1966. That disability lasted until he obtained substantial gainful activity. When, after twenty years, Giattina was no longer able to engage in that activ- ity, he was once again disabled, leading to two distinct periods of dis- ability for the purposes of the regulation. The disability in question, _________________________________________________________________
4 The reasonableness of the Commissioner's interpretation of "first" is further buttressed by the Example at subsection (k) of the regulation, which applies the offset provision notwithstanding the fact that the woman in the Example had a prior period of disability similar to Giat- tina's.
4 then, began in 1988 and brings Giattina squarely within the offset provision.5
Appellant argues that the Commissioner's interpretation of the reg- ulations "requires a pretense that [his] first entitlement and period of disability . . . never existed." Appellant's Br. at 14. This overstates the matter. Because of the "based on a disability that began after" lan- guage, the Commissioner's interpretation of the regulation adequately addresses the possibility that, as here, a claimant has been afflicted with two separate disabilities. As with the interpretation of the "first became entitled to . . . benefits" language, the Commissioner's inter- pretation of the regulations which would allow Giattina's blindness to be treated as two distinct disabilities is not "plainly erroneous" or con- trary to the regulations' language.
As a result, we affirm the district court's order granting the Com- missioner's motion for summary judgment and affirming the determi- nation that Giattina's benefits be subject to the offset be affirmed. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argu- ment would not aid the decisional process.
AFFIRMED _________________________________________________________________
5 Appellant urges the court to interpret § 404.408 in light of 20 C.F.R. § 1586(b) (1996). That section provides that if the Commissioner discon- tinues cash benefits to a person with blindness,"the period of disability that [the Commissioner] established for you will continue." Id. However, as the Commissioner notes, "period of disability" in the context of the regulations does not definitively establish whether Giattina's blindness was one disability or two. Rather, that term is used by the Commissioner to protect a claimant's earnings record so that the time a claimant is dis- abled will not diminish the calculation of the claimant's qualifying period. 20 C.F.R. § 1582 (1996). In fact, the very regulations to which Appellant cites recognize blindness as two separate disabilities. See 20 C.F.R. § 1582-1584 (distinguishing the requirements for a blindness dis- ability among claimants at least 55 years of age from the requirements for a blindness disability for claimants under age 55).