USCA1 Opinion

October 11, 1996

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-2267

NANCY TREMBLAY,

Plaintiff, Appellant,

v.

LOUIS SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Cyr and Stahl, Circuit Judges.
______________

____________________

Nancy Tremblay on brief pro se.

______________
Donald K. Stern,
________________

United States

Attorney and

Assistant Regional Counsel, on brief for appellee.

Thomas D. Rams
_______________

____________________

October 10, 1996

____________________

Per Curiam.
___________

Claimant Nancy

Tremblay

appeals

district court order upholding a decision of the Commissioner

of

Social

disability

Security

benefits

disability pension

(CSRS).

that

to

reduced

zero

her

due

to

her

Social

receipt

Security

of

under the Civil Service Retirement System

We affirm.

I.

Undisputed Facts
________________

The relevant facts are as follows.

accountant for the U.S. Army Corps

Claimant is a former

of Engineers who suddenly

went blind at the age of 27 due to a rare hereditary disorder

(Leber's

optic

neuropathy).

disabled

within the

meaning of

becoming disabled, claimant had

between

This

condition

42 U.S.C.

rendered her

423.

Prior to

worked in the private sector

1977 and 1981, earning wages

that were "covered" by

Social

Security.

Services,
________

See Das
___ ___

17 F.3d

purposes of

v. Secretary of Health and Human

______________________________

1250, 1253

the Social

& n.

2 (9th

Security Act,

Cir. 1994)("For

wages

upon which

an

individual pays social security taxes are 'covered' wages and

those

are

upon which an

individual pays no

'noncovered.'" (citation

1987,

claimant

wages

that were

rendered her

worked for

not

omitted)).

the federal

covered by

eligible to receive a

the CSRS after she became blind.

-2-

Social

social security tax

Between 1983

and

government, earning

Security but

that

disability pension under

Claimant applied for Social Security disability benefits

(SSDI) and for disability retirement benefits under the CSRS.

She began receiving benefits under both programs in late 1988

and early 1989.1

1

Administration

Security

receipt of

Toward the end of 1989, the Social Security

(SSA)

benefits

the CSRS

notified

should

have

pension.

claimant

that

been withheld

her

due

Social

to

her

The SSA's determination

was

based on the offset provision in 42 U.S.C.

424a.

The Offset Provision

____________________

Congress enacted

concern

payments

424a

in 1965 in response

that many disabled workers were receiving disability

in excess

of their

their dual eligibility for

Security

and

believed

that,

working wages

state worker's compensation programs.

inter
_____

alia,
____

424a, "which, by

benefits to

80% of

this

situation

at

the

same

result of

It was

decreased

Consequently, Congress

limiting total state and

the employee's average

prior to disability, reduced

programs and

as a

benefits under the federal Social

worker's incentive to return to work.

enacted

to renewed

federal

current earnings

the duplication inherent in the

time

allowed

supplement

to

workmen's

compensation

inadequate."

when

Richardson
__________

v.

the

state

Belcher,
_______

404

payments

U.S.

were

78,

83

____________________

1Claimant's CSRS benefits were $919 per month.

1
Social

Security benefits

month.

This figure

and

an

totalled

approximately

Claimant's
$540

per

included claimant's monthly SSDI benefit

additional sum

in

child's

received on behalf of her daughter.

-3-

benefits that

claimant

(1971)(holding

424a

does

not violate

the

Due

Process

Clause).

This court

and others

have indicated

in dicta

that

424a generally allows disabled workers to retain 80% of their

pre-disability

income

or

earnings

before

their

Social

Security benefits will be reduced under the offset provision.

See,
___

e.g., Davidson v. Sullivan,

____ ________
________

1991)(noting that

under

424a

and social security benefits

"predisability income");

140 (3d Cir.

942 F.2d 90,

92 (1st Cir.

total worker's compensation

may not exceed 80% of

Sciarotta v. Bowen,
_________
_____

1988)(noting that in enacting

worker's

837 F.2d

135,

424a, Congress

"intended to 'limit[] total state and federal benefits to 80%

of

the

employee's

average

earnings

prior

to

the

disability'")(citation omitted);

F.2d

543,

544

(11th

Cir.),

(1982)("[g]enerally, the

total of

Swain v.
_____

cert.
_____

exceeds 80%

of his

or her

reduces

the federal

Harris,
______

625 F.2d 1303,

denied,
______

424a] offset

an individual's benefits

459 U.S.

991

applies when

the

and worker's compensation

pre-disability

benefits

Schweiker, 676
_________

by the

1306 (5th Cir.

earnings and

it

excess"); Freeman
_______

v.

1982)(similar).

But

the statute does not mandate this result in every case.

With certain exceptions immaterial to

424a

provides

individual

that

in

any

given

under age 65 is entitled

disability benefits under

42 U.S.C.

the present case,

month

in

which

an

to both Social Security

423 and other periodic

-4-

disability

benefits,

compensation or under

e.g.,
____

any other

those

paid

law or plan

under

of the

worker's

United

States, the total Social Security disability benefits and any

related

402 benefits based on that

individual's wages and

self-employment income (e.g., child's benefits):

____

shall be reduced (but

not below zero) by

the amount by which the sum of -

(3)

such

total

...

[Social

Security]

benefits under sections 423 and

402 ...,

and

(4) such periodic

actually

paid)

benefits payable
... under

such

(and

laws or

plans,

exceed the higher of -

(5)

80

per

centum

of

...

[the

individual's] "average current earnings",

or

(6)

the

[Social

total

of

Security]

such

individual's

disability

insurance

benefits under section 423 ... and of any

monthly insurance
402

... prior

benefits under section

to

reduction under

this

section.

Thus,

424a

requires

that

person's

Social

Security

benefits be reduced

by the

amount by which

the sum of

his

Social

Security and

other disability

benefits exceeds

the
the

higher
higher

of: (a)
of

of his

current earnings"

as

defined by

80%

"average

424a, or (b) his total Social Security benefits.

The statute goes on to

define "average current earnings", in

relevant part, as the largest of:

(A) the average monthly wage ... used for

purposes

of

computing

-5-

...

[the

individual's

Social

Security]

benefits

under section 423...,

(B) one sixtieth of the total of ... [the

individual's]
income

...

wages and
for

the

self-employment
five

consecutive

calendar years after 1950, for which such

wages

and

self-employment

income

were

highest, or

(C) one-twelfth of the

individual's]

wages and

total of ... [the

self-employment

income ... for the calendar year in which

he

had the highest such wages and income

during

the

period

consisting

of

the

calendar year in which he became disabled

...

and the

year.2
2

See 42 U.S.C.
___

424a.

five

years preceding

that

Claimant's Case
_______________

In applying the offset provision, the SSA determined the

claimant's

method

years

"average current

based on the wages

of

"covered"

$307.20, an

total

Social

under the

that she earned

employment, i.e.,

percent of her "average

was

earnings"

5"

during her first

1977-1981.3
3

Eighty

current earnings," as so calculated,

amount substantially

Security

"High

benefits.

less than

When

the

claimant's

latter

was

____________________

2The computation
2
called

the

"High

method outlined
5"

method,

in subparagraph (B)

while

that

subparagraph (C) is called the "High 1" method.

compute

"average current

limitations
Security
411(b)(1).

on the

earnings"

maximum earnings

purposes specified

in 42

outlined

in

Both methods

without regard
creditable for
U.S.C.

is

to

the

Social

409(a)(1) and

3These wages
3
during

her

were much

last years

lower than those

of

"non-covered"

claimant earned
employment as

an

accountant with the federal government.

-6-

subtracted

from the

sum of

CSRS benefits, as required by

benefit

claimant's Social

Security and

424a(a)(3)-(6), the $919 CSRS

was left as the amount to be "offset", or subtracted

from,

claimant's total

since claimant's

benefits,

Social Security benefits.

CSRS benefit

and

However,

exceeded her Social

424a prohibits

reducing

Security

Social

Security

benefits below zero, application of a $919 offset effectively

reduced claimant's Social Security benefits to zero.

Claimant disputed the

reconsideration.

The

reconsideration

administrative

and

SSA's computations and

SSA reaffirmed

in

law judge

provision had been properly applied.

upheld

the

ALJ's

decision,

decision of the Commissioner.

its position

subsequent

(ALJ), who

requested

decision

found that

The

it

by

an

the offset

Appeals

thus rendering

both on

Council

the

final

Claimant

thereafter

judicial review,

commenced

this

proceeding

arguing, inter alia, that

_____ ____

foresee her situation

when it

SSA's

application of

the

undue

hardship

on her.

enacted

for

Congress did not

424a

and that

the

offset provision

resulted in

an

Noting

remaining

that her

CSRS

benefit fell substantially short of 80% of her pre-disability

earnings,

computed

claimant

maintained

her "average

that

the

current earnings"

covered federal earnings from

SSA

should

based on

have

her non-

1983-1988, a method that would

-7-

leave her

Social Security

benefits intact.

Claimant urged

the district court to follow a similar unpublished case which

reinstated a blind claimant's Social Security benefits

the

SSA had eliminated them under the offset provision.

after

See
___

Dunkin v. Secretary of Health and Human Services, No. 1-C-85______

______________________________________

1801, slip op., 1987 WL 109706 (S.D. Ohio,

1987)(holding SSA

erred in reducing claimant's benefits to zero after computing

his

"average current earnings"

covered employment).4
4

based only

on his

years of

The district

rejected

should

court upheld the Commissioner.

claimant's

not

contention

apply to

blind

provisions of the Social

that Congress and

that

persons,

the

The court

offset provision

reasoning that

Security Act and regulations showed

the Commissioner clearly knew

how to make

exceptions for the blind when they wished to do so.

on

Smith
_____

v.

Sullivan,
________

1992)(holding that

covered federal

SSA

other

982

F.2d

308,

311-15

correctly excluded

earnings from

calculation

current

earnings"),

the

court

properly

calculated

the

offset.

decision.

II.

also

Relying

(8th

Cir.

claimant's

non-

of his

found

Claimant

that

"average

the

appeals

SSA

this

____________________

4 Claimant
4

also argued that

offset provision to

Congress did not

apply to her

intend the

because other sections

of

the Social Security Act and regulations treat blind claimants

more leniently than those with other disabilities.

-8-

The

discrete

question

before

claimant's "average current earnings",

us

is

whether

as defined in

the

424a,

were

properly based

employment or

should

only on

whether, as

have been

claimant

based on

covered" employment.

claimant's years

her most

Our

of "covered"

contends, they

instead

recent years

of "non-

standard

of

review

established:

When

court

reviews

an

construction

of

the

administers,

it

is confronted

questions.
question

First,
whether

spoken to the
If

statute

which

it

with two

always,

is

Congress has

the

directly

precise question at issue.

the intent of Congress is clear, that

is the end of
as well as the

the matter, for the court,

agency, must give

to the unambiguously expressed

Congress.

If,

however,

determines

Congress

has

effect

intent of
the

not

addressed the precise question

the

agency's

court

directly
at issue,

court does not simply impose its own

construction of the
necessary

in

the

statute, as would be
absence

of

an

is

well-

administrative interpretation.
if

the statute

with

is

silent or

respect to the

question

for

Rather,
ambiguous

specific issue, the

the court

is

whether the

agency's answer is based on a permissible

construction of the statute.

Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S.

______________
_________________________________

837, 842-43 (1984).

While claimant concedes that a literal interpretation of

424a

compels

the

conclusion

earnings"

must be based on "covered

to reject

such

an

interpretation in

-9-

that

"average

current

earnings," she urges us

favor

of

one

which

comports

with

explain below,

her view

of

Congressional intent.5
5

we reject claimant's arguments,

As we

for they are

not supported by either the plain language of the statute nor

a fair reading of its legislative history.

language

of the statute. See

___

We begin with the

Stowell v. Secretary of Health

_______
___________________

and Human Services, 3 F.3d 539, 542 (1st Cir. 1993).

__________________

The Statute
___________

We

first observe

indicates whether

that nothing

on the

claimant's "average current

be based only on "covered" earnings.

that the plain

requires the

from

the

language of

of

42 U.S.C.

her

the Social Security Act.

definition

of

claimant's

current

earnings"

not be deemed "wages" under

We agree.

"average

current

Social

Security

claimant's "wages and self-employment

____________________

410(a)

"non-covered" earnings

earnings"

424a(a) depends on either the "average monthly

compute

earnings" may

409(a) and

"average

because her federal earnings may

424a

The Commissioner argues

exclusion of claimant's

computation

The

face of

wage" used to

benefits

income."6
6

in

or

the

The Social

5Claimant
5

also

interpretation

of

process and
was

contends

that

"average current

the
earnings"

equal protection because the

allowed

to

keep

his Social

Commissioner's
violates due

claimant in Dunkin
______

Security

benefits

while

claimant's Social Security benefits have been eliminated.

6As claimant was never self-employed, and does not contend

6
that her average current

earnings should have been

the average monthly wage used to compute her

benefits,

based on

Social Security

we confine our analysis to the meaning of the term

"wages."

-10-

Security Act

defines the term "wages"

... after 1950 for

as "remuneration paid

employment...." 42 U.S.C.

definition of the term

409(a).

The

"employment" excludes service such as

that performed by claimant for the federal government. See 42

___

U.S.C.

410(a).7
7

It

follows, then, that because claimant's

federal service does not qualify as "employment," her federal

earnings may not

be deemed "wages" for purposes of computing

her "average current

Accord Smith
______ _____

Shalala,
_______

earnings" under

v. Sullivan,
________

844 F. Supp. 239,

982 F.2d

the offset

at

provision.

313-15; Prather
_______

240-41 (D. Md.

v.

1993), aff'd, 14
_____

F.3d 595( 4th Cir. 1994); Clevinger v. Sullivan, 813 F. Supp.

_________
________

421,

422

(E.D. Va.

1993);

cf.
___

Viney v. Gardner,
_____
_______

310 F.

Supp.

76, 77-78 (E. D. Mich. 1970)(holding term "wages" in

424a is defined by

The

effect

409(a)).

plain meaning

"unless

of

it would

a statute's

produce

text must

an absurd

be given

result

or one

____________________

742
7

U.S.C.

410(a)

excludes from

the

definition

of

"employment" any post-1950 "[s]ervice performed in the employ

of the

United

excluded

States ...

from the

subchapter if the
this

term

if such

service -

'employment' for

provisions of

(A) would

purposes of

paragraphs (5)

and (6)

be
this
of

subsection as in effect in January 1983 had remained in

effect, and (B) is performed by

an individual who - ... (ii)

is receiving an annuity from the Civil Service Retirement and

Disability

Fund

...."

government

after 1950

and 6

remained in
the

of

the

federal

from the definition of "employment"

410 as in

effect, for

definition of

for

and receives a CSRS annuity. Her work

would have been excluded

if

Tremblay worked

effect in

January 1983

the latter paragraph

employment federal

retirement system established by

excluded from

service covered

federal law.

had

by a

Consequently,

claimant's federal

work is

excluded from the

definition of

"employment."

-11-

manifestly

at

odds

with

the statute's

intended

effect."

Parisi by Cooney v. Chater, 69 F.3d 614, 617 (1st Cir. 1995).

________________
______

Relying on

claimant

excerpts from

contends

that

the

424a's legislative history,

offset

resulting

from

the

exclusion

of

computation

her

of

non-covered

federal

earnings

"average

current

earnings"

her

from

the

violates

Congress's intent to leave disabled workers with 80% of their

pre-disability earnings.

equals

she

only 31.7% of the

became blind

avoid

and

leaving disabled

Claiming that

claimant urges

statute in

leave

She maintains that her CSRS pension

that Congress

earned

before

expressly intended

workers with

such

a slim

to

amount.

"overwhelming" case law supports her position,

us to reject a literal

favor of one

disabled

monthly salary she

workers

interpretation of the

that furthers Congress's

with

80% of

their

intent to

pre-disability

earnings.8
8

While we recognize the ongoing debate over the propriety

of

using

legislative

history

as

means

to

discern

statute's

intent, see,
___

e.g.,
____

Dept. of Human Services, 48

________________________

Strickland
__________

F.3d 12, 17

v.

Commissioner,
_____________

(1st Cir.),

cert.
_____

____________________

8Claimant contends that such

8
837 F.2d

cases as Sciarotta v. Bowen,

_________
_____

at 138; Swain v. Schweiker, 676 F.2d at 546-47; and

_____
_________

Merz v. Secretary of Health and Human Services, 969 F.2d 201,

____
______________________________________
206 6th
should

Cir. 1992), support

her contention that

this court

reject the literal meaning of the statute in favor of

one which

furthers Congressional intent.

the remaining

cases that claimant cites

issue before us.

Neither these nor

address the precise

Therefore, they are not controlling.

-12-

denied, 116
______

that

we "may

confirm an

of a

S. Ct. (1995)(collecting cases),

consult

relevant legislative

interpretation indicated by the

statute]."

whole

history, while

supports

history ...

to

plain language [

Grunbeck v. Dime Savings Bank of New York,

________
_______________________________

FSB, 74 F.3d 331, 336 (1st

___

legislative

we will assume

the

statute.

Legislative History
___________________

Cir. 1996). We conclude that

occasionally

Commissioner's

ambiguous, on

interpretation

of

the

the

the

Claimant is

report

that

indicates

leave

correct that the

accompanied

that

424a,

Congress intended

disabled workers

earnings prior

Senate Finance

to the

with 80%

onset of

as

originally

the offset

of their

"average monthly

disability."

However, the

The new offset provision ... provides for

reduction

disability

in

the

benefit

social
(except

security
where

the

State workmen's compensation law provides

for an offset ...)
total

benefits

programs

exceed

worker's
to the

paid

under

the

two

80

percent

of

the

earnings prior

onset of disability.

provision,

the worker's

earnings would
of

in the event that the

average monthly

Under this

average monthly

be defined as

the higher

(a) his average monthly wage used for

purposes of computing his social security

disability

benefit

or

(b) his

enacted,

provision to

latter phrase was qualified. The report states that:

Committee

average

monthly
by
by

earnings, in
in

social security, during his highest 5

social security

consecutive
reduction
the

employment covered
employment covered

years

formula would

inequity

previous

after

1950....

generally avoid

encountered

offset

This

under

provision,

where

the
the

-13-

reductions that
resulted
more

than

in

were required frequently

benefits
30

percent

that replaced
or

so

of

no
the

worker's earnings at disablement.

S. Rep. No. 404, 89th Cong., 1st Sess., 100 (1965), reprinted
_________

in 1965 U.S. Code Congressional and Administrative News 1943,

__

2040.

that

(emphasis supplied).

Congress

synonymous

repeated

with

intended

emphasized language

"average current

"covered"

in other parts

The

earnings.

This

of the Senate

"average monthly

covered earnings");

wage"

to

be

assumption

is

Report.

2041 (describing hypothetical application

worker's

earnings"

is based

shows

of

See id. at
___ __

424a in which

on his

"average

id. at 2200 (computing worker's "average

___

current earnings" based on wages and income "credited to

social

security

account").

Thus,

when the

his

legislative

history excerpts that claimant cites are read in

context, it

appears that Congress was speaking only of "covered" earnings

when it expressed a desire to leave disabled workers with 80%

of their pre-disability earnings and to avoid leaving workers

with only 30% of such earnings.9

9

____________________

9Subsequent legislative history that accompanied the early

9
amendments to
intended

424a

"average

also supports

current earnings"

"covered"

earnings.

1st Sess.

(1967), reprinted in 1967

_________ __

the view that

to

be

larger

of a

worker's

computing his social security

earnings during

the 5

based only

on

See, e.g., S. Rep. No. 744, 90th Cong.,

___ ____
U.S.C.C.A.N. 2834, 2884

(noting that "average current earnings" under

the

Congress

average

424a equalled

monthly wage

used

for

benefit or his average monthly

consecutive years of

highest covered
highest covered

earnings after 1950); H. Rep. No. 231, 92d Cong., 2d Sess. 57

earnings
(1972),

reprinted in
_________ __

1972 U.S.C.C.A.N.

4989, 5044

(same).

-14-

In short, the plain language of the Social Security Act,

42

U.S.C.

409, 410

and 424a,

claimant's non-covered federal

of

her "average

here.

wages,"

current

Apart from a

the

directs the

exclusion of

earnings from the calculation

earnings" and

the offset

applied

single excerpt referring to "non-covered

legislative history

of

424a confirms

this

result.

Whatever doubts might be raised by this excerpt are

put to rest

by more

January 1989,

offset

recent developments.

Senator

Moynihan offered an amendment to

provision that

non-covered earnings

claimant

to be

earnings."

See
___

We note that

would

of

have specifically

former

considered in

public

not passed. See Prather

___ _______

F. Supp. at 241 n. 1;

such

as

"average current

S. 213, 101st Cong., 1st Sess. 1115

That amendment was

the

allowed the

employees

calculating

in

(1989).

v. Sullivan, 844
________

Clevinger v. Sullivan, 813 F. Supp. at

_________
________

____________________

The only contrary indication

appears in a Senate
the Omnibus

that we have been able

to find

Budget Committee Report that accompanied

Budget Reconciliation

Act of 1981.

Inter alia,
_____ ____

that Act extended the offset provision so that it would apply

to

individuals receiving

disability benefits

state, or local governments.

an

apparent

"average

reference to

annual amount of covered

the

The Budget Committee report, in

the "High

current earnings

from federal,

1" method,

generally refers

to

says that,
the highest

and non-covered wages earned during

non-covered wages

6-year period consisting of the year in which the worker

becomes disabled and

139, 97th

Cong.,

U.S.C.C.A.N. 693,
statement

is

expressions of

the 5 preceding years...."

1st Sess.
694

428 (1981),

(emphasis

alone insufficient

reprinted in
_________ __

1981

supplied).

This

to undermine

the previous

single

Congressional intent to base "average current

earnings" only on "covered" earnings.

a statute

S. Rep. No.

merely

by

inserting

the proposed

congressional report...." Strickland

__________
Human Services, 48 F.3d at 18.
______________

-15-

"Congress cannot amend

change

in

v. Commissioner, Dept.
____________________

422 n. 2.

"To be sure, non-action by

a dubious guide"

to legislative intent.

of Health and Human Services,

______________________________

1995).

Ruling

But thereafter, the SSA

(SSR)

92-2a.

Commissioner would

based

only

provision

ruling was

on

has

Congress is ordinarily

That

Brown
_____

46 F.3d

v. Secretary
_________

102, 108

(1st Cir.

promulgated Social Security

ruling

indicated

that

require "average current earnings"

"covered"

been amended

earnings.

in

Although

other

the

respects since

the

to be

offset

this

published, Congress has done nothing to alter the

Commissioner's interpretation of "average

current earnings."

This strongly suggests that the Commissioner's interpretation

comports

with

Rutherford,
__________

Congress's

442 U.S.

544,

intent.

554

n. 10

inaction after agency position has

attention

of the

public

Cf.
___

United States
______________

v.

(1979)(Congressional

been fully brought to the

and Congress

suggests agency

has

correctly discerned legislative intent).10

10

III.

Conclusion
__________

____________________

10As other
10
why

courts have

the decision to base

"covered

earnings"

is

noted, there are

several reasons

"average current earnings" only on

reasonable.

See,e.g.,
___ ____

Smith
v.
________

Sullivan,
________

982

exclude wages

F.2d at
on which

344 (noting
an

that

individual has

it is

logical to

not paid

Social

Security taxes from computation of benefit limit); Prather v.

_______
Sullivan,
________
exclude

844

F.

Supp.

at 241

non-covered wages from

calculation

...

preserving scarce

is

decision

to

the average current earnings

rationally

resources

("Congress's

related

where the

to

the

individual

goal

of

receives

benefits from other sources.").

-16-

Where the plain language

and legislative history of the

statute

indicate that

the Commissioner's

consistent with Congress's intent,

contrary interpretation.

process or

We

interpretation is

this court may not devise

further discern

equal protection violation arising

no

due

from the fact

that the plaintiff in Dunkin had his Social Security benefits

______

reinstated

while claimant's

Apart from the fact that

an

unpublished

Dunkin lacks precedential value

______

it

was decided

before

92-2a.

"An

agency that

is

statute

remains

free

interpretations

of that

statute

administering

SSR

agency interpretation is ...

v.

been eliminated.

decision,

promulgated

judicial

benefits have

LaBonte,

70

F.3d

to

as

(1st

Cir.

SSA

charged with

supplant

reasonable ...."

1396, 1405

the

as

long as

prior

the

United States
_____________

1995),

cert.

_______

_____

granted, 116

S. Ct. 2545

(1996).11
11

At bottom,

claimant's

_______

arguments challenge the

non-covered

earnings

Commissioner's policy judgment

must

provision. "When a challenge

be

excluded

under

the

that

offset

to an agency construction of

statutory provision, fairly conceptualized, really centers on

the

wisdom of the agency's policy, rather than whether it is

a reasonable choice within

challenge must

fail."

Council, 467 U.S. at

_______

a gap left open by

Chevron v.
_______

866.

Congress, the

Natural Resources Defense

_________________________

Accordingly, the judgment

of the

____________________

11Claimant's argument
11

that the district court

engaged in

misconduct by relying on the defendant's memorandum is wholly

meritless.

-17-

district court is affirmed.

________

-18-