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May 2, 1994


The opinion of the court was delivered by: DAVID G. TRAGER


 Plaintiff Mary Lee Hunter, a schoolteacher, is a severe asthmatic. She is unable to regulate her condition with conventional medication because of the adverse side-effects of such treatment. On January 18, 1988, finding herself unable to work, she took a leave from her job with the Sachem District School. After waiting five months, as required by 42 U.S.C. § 423(c)(2), still homebound and unable to work, Ms. Hunter filed a claim for disability insurance benefits with the Department of Health and Human Services on June 21, 1988.

 Ms. Hunter's claim had not yet been processed by the time the new school year began in September, more than two months after she had filed for disability. In the interim, because money was scarce and she was quickly approaching destitution, Ms. Hunter spoke with her employer about the possibility of a modified teaching schedule - one that would allow her frequent recesses during which she could monitor and regulate her breathing. Her employer agreed to the experiment and Ms. Hunter returned to the workforce on September 6, 1988. Breathing equipment was installed at the school for this purpose.

 Three weeks later on September 27th, the Secretary determined that Ms. Hunter was disabled and was entitled to disability insurance benefits. Ms. Hunter immediately advised her local Social Security Office of the new work arrangement with her school. She nevertheless continued to receive benefit checks. Two years later, she would write the Director of the Office of Disability:

I am not entitled to disability insurance benefits! I did report back to work in September, 1988. I have been trying to inform your office since then. I reported to the Social Security Office . . . as soon as I reported back to work. At that time I notified the social security people . . . that I had received a check for disability insurance benefits. I filed a form at that time. I again completed a form in December, 1988. I told the administrator that I was still receiving checks at the beginning of each month. I was instructed to make copies of each check and deposit it until further notice. In the spring of 1989, I decided that it was best that I did not cash the monthly checks. I have been holding them until I received further instructions.

 Ms. Hunter's efforts to stop the flow of disability checks finally met with success when, on August 26, 1990, she was notified by the Social Security Administration that her initial award of benefits had been reversed because Ms. Hunter had later proved capable of returning to work. The agency had determined that Ms. Hunter was never disabled in the first place. Moreover, the reversal was to be retroactive. Thus, the Director now demanded that Ms. Hunter return the disability insurance benefits, not only for the period after September, 1988, but also for those she received for the period prior to her return to work.

 Ms. Hunter argues that she was entitled to the disability payments for the period prior to her return to work, as well as for a "trial work period" pursuant to 42 U.S.C. § 422(c) (1993), which allows a disabled claimant a nine-month period in which to attempt to reenter the workforce without forfeiting her disability benefits.

 It is the Secretary's position that before one can qualify either for a disability insurance benefit or a "trial work period," one must first be "adjudicated" by the agency to be disabled. Def's Mem. Supp. J. on Plead., at 7. The Secretary relies on Social Security Ruling 82-52, which provides that if a claimant actually succeeds in returning to work in the first year of the impairment, but prior to a determination of disability, it is deemed conclusive that the claimant could not meet the statutory definition of "disabled." Because Ms. Hunter returned to work three weeks before the determination of disability had been made and before a year had passed, she was, according to S.S.R. 82-52, not entitled to any benefits.

 On its face, S.S.R. 82-52 contradicts the plain language of the Social Security Act's definition of "disability." More importantly, S.S.R. 82-52 undercuts, if it does not nullify, the Act's "trial work period" policy, which seeks to encourage the disabled to return to work as soon as possible, as Ms. Hunter did. 42 U.S.C. § 422(c).

 Clearly, there is a rational basis to believe that, in many instances, those who return to work within a year were never in fact disabled as contemplated by the statute, and Congress could have easily required, as does S.S.R. 82-52, a waiting period of a year before awarding any benefits. But it is evident from an analysis of the statute that, as a matter of policy, it chose not to do so.

 The Social Security Act defines disability as the "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." 42 U.S.C. § 423(d)(1)(A) (1993). The applicable regulations set forth a multi-stage analysis to be used in making this determination. The claimant must first be found incapable of engaging in "substantial gainful activity" during the period in question and the inability to work must be "expected to last" for at least a year, or result in death. Although this durational limitation was intended to exclude claims for temporary disabilities that result in short term impairment, the plain language of the statute requires only an expectation of a disability that will last at least a year, not an actual disability of a year's length. See S. Rep. No. 404, 89th Cong., 1st Sess. 98-99, reprinted in 1965 U.S. Code Cong. & Ad. News 1943, 2038. And the statute certainly says nothing about a claimant first being adjudicated disabled by the Social Security Administration for him or her to be found disabled.

 Moreover, I decline to ascribe an intent to Congress to authorize the agency to read the statute in the manner it has in S.S.R. 82-52 when the results, as we shall soon see, are so absurd and contrary to the policy of other statutory provisions. The point at which the Secretary comes to acknowledge the existence of a disability is not and should not be a consequential factor in the calculus of entitlement, let alone a determinative one.

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