The Grammatical Rule of the Last Antecedent

When the five-step disability evaluation process reaches step 4, Social Security considers whether a claimant can do his past work.  When a claimant can do his past work, he is found not disabled.  When a claimant cannot do his past work, the analysis moves on to consider whether the claimant can do any other work.

In the 2003 decision, Barnhart v. Thomas, 540 U.S. 20, the U.S. Supreme Court approved Social Security’s finding that a claimant was not disabled because she could do her past work.

In making its determination at step 4, that the claimant could do her past relevant work, Social Security did not take into account whether the past work still existed in significant numbers.  The claimant Thomas had been an elevator operator (prior to the time her job was eliminated), and at the time her case was considered by Social Security (she applied in 1996), very few elevator operators’ jobs existed.

Thomas argued that, even if she could do an elevator operator’s job, Social Security should have found her disabled because very few elevator operators’ jobs existed in the national economy.

The part of the statutory language that Thomas relied on is shown in italics below:

“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 USC §423(d)(2)(A).

Work which exists in the national economy is defined by the statute to mean work which exists in significant numbers either in the region where the individual lives or in several regions of the country.

In reviewing the actions of an administrative agency such as Social Security, if the intent of the statute is ambiguous, the courts tend to give deference to the agency’s interpretation of the statute, so long as the court finds the construction reasonable in light of the alternatives.

In this case, the Supreme Court agreed with Social Security that the phrase, “which exists in the national economy,” applied only to the second part of the paragraph, namely to “any other kind of substantial gainful work.”  “Any other work” is step 5 of the Social Security disability analysis.

 

Citing a treatise on statutory construction, the Supreme Court reasoned that the lower court had disregarded the grammatical rule of the last antecedent:

“[A]ccording to which a limiting clause or phrase (here, the relative clause ‘which exists in the national economy’) should ordinarily be read as modifying only the noun or phrase that it immediately follows (here, ‘any other kind of substantial gainful work’).”