
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        October 11, 1996        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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  Thomas  D. Ramsey,            ________________                                _________________        Assistant Regional Counsel, on brief for appellee.                                 ____________________                                   October 10, 1996                                 ____________________                 Per  Curiam.        Claimant Nancy  Tremblay  appeals  a                 ___________            district court order upholding a decision of the Commissioner            of  Social   Security  that  reduced   her  Social   Security            disability  benefits  to  zero  due  to  her  receipt  of   a            disability pension  under the Civil Service Retirement System            (CSRS).  We affirm.                                          I.            Undisputed Facts            ________________                 The relevant facts are as follows.  Claimant is a former            accountant for the U.S. Army Corps  of Engineers who suddenly            went blind at the age of 27 due to a rare hereditary disorder            (Leber's  optic  neuropathy).   This  condition  rendered her            disabled  within the  meaning of  42 U.S.C.    423.  Prior to            becoming disabled, claimant had  worked in the private sector            between  1977 and 1981, earning wages  that were "covered" by            Social  Security.  See Das  v. Secretary of  Health and Human                               ___ ___     ______________________________            Services,  17 F.3d  1250, 1253  & n.  2 (9th  Cir. 1994)("For            ________            purposes of  the Social  Security Act,  wages  upon which  an            individual pays social security taxes are 'covered' wages and            those  upon which an  individual pays no  social security tax            are  'noncovered.'" (citation  omitted)).   Between 1983  and            1987,  claimant  worked for  the federal  government, earning            wages  that were  not  covered by  Social  Security but  that            rendered her  eligible to receive a  disability pension under            the CSRS after she became blind.                                         -2-                 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  Toward the end of 1989, the Social Security                           1            Administration  (SSA)  notified  claimant  that   her  Social            Security  benefits  should  have  been withheld  due  to  her            receipt of  the CSRS  pension.   The SSA's determination  was            based on the offset provision in 42 U.S.C.   424a.            The Offset Provision            ____________________                 Congress enacted   424a  in 1965 in response  to renewed            concern  that many disabled workers were receiving disability            payments  in excess  of their  working wages  as a  result of            their dual eligibility for  benefits under the federal Social            Security  and  state worker's compensation programs.   It was            believed  that,  inter  alia,  this   situation  decreased  a                             _____  ____            worker's incentive to return to work.  Consequently, Congress            enacted   424a, "which, by  limiting total state and  federal            benefits to  80% of  the employee's average  current earnings            prior to disability, reduced  the duplication inherent in the            programs and  at  the  same  time  allowed  a  supplement  to            workmen's   compensation  when   the   state  payments   were            inadequate."    Richardson  v.   Belcher,  404  U.S.  78,  83                            __________       _______                                            ____________________               1Claimant's CSRS benefits were $919 per month.  Claimant's               1            Social  Security benefits  totalled  approximately  $540  per            month.  This figure  included claimant's monthly SSDI benefit            and  an  additional sum  in  child's  benefits that  claimant            received on behalf of her daughter.                                         -3-            (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,  942 F.2d 90,  92 (1st Cir.            ___   ____  ________    ________            1991)(noting that  under   424a   total worker's compensation            and social security benefits  may not exceed 80% of  worker's            "predisability income");  Sciarotta v. Bowen,  837 F.2d  135,                                      _________    _____            140 (3d Cir.  1988)(noting that in enacting    424a, Congress            "intended to 'limit[] total state and federal benefits to 80%            of   the   employee's   average   earnings   prior   to   the            disability'")(citation omitted);     Swain v.  Schweiker, 676                                                 _____     _________            F.2d  543,  544  (11th  Cir.),  cert.  denied,  459 U.S.  991                                            _____  ______            (1982)("[g]enerally, the  [   424a] offset  applies when  the            total of  an individual's benefits  and worker's compensation            exceeds 80%  of his  or her  pre-disability  earnings and  it            reduces  the federal  benefits  by the  excess"); Freeman  v.                                                              _______            Harris,  625 F.2d 1303,  1306 (5th Cir.  1982)(similar).  But            ______            the statute does not mandate this result in every case.                      With certain exceptions immaterial to  the present case,               424a  provides  that  in  any  given  month  in  which  an            individual  under age 65 is entitled  to both Social Security            disability benefits under  42 U.S.C.   423 and other periodic                                         -4-            disability   benefits,  e.g.,   those  paid   under  worker's                                    ____            compensation or under  any other  law or plan  of the  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  benefits payable  (and                      actually  paid)  ... under  such  laws or                      plans,                      exceed the higher of -                      (5)   80   per   centum   of   ...   [the                      individual's] "average current earnings",                      or                      (6)  the  total   of  such   individual's                      [Social  Security]  disability  insurance                      benefits under section 423 ... and of any                      monthly insurance  benefits under section                      402  ... prior  to  reduction under  this                      section.            Thus,     424a  requires  that  a  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  of: (a)  80%  of his  "average  current earnings"  as            higher  of            defined by   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   ...    [the                                         -5-                      individual's  Social  Security]  benefits                      under section 423...,                       (B) one sixtieth of the total of ... [the                      individual's]  wages and  self-employment                      income  ...  for  the   five  consecutive                      calendar years after 1950, for which such                      wages  and  self-employment  income  were                      highest, or                       (C) one-twelfth of the  total of ... [the                      individual's]  wages and  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  five  years preceding  that                      year.2                           2            See 42 U.S.C.   424a.            ___            Claimant's Case            _______________                 In applying the offset provision, the SSA determined the            claimant's  "average current  earnings"  under the  "High  5"            method  based on the wages  that she earned  during her first            years  of  "covered"  employment, i.e.,  1977-1981.3   Eighty                                                               3            percent of her "average  current earnings," as so calculated,            was  $307.20, an  amount substantially  less than  claimant's            total  Social  Security   benefits.  When   the  latter   was                                            ____________________               2The computation  method outlined  in subparagraph (B)  is               2            called  the   "High  5"   method,  while  that   outlined  in            subparagraph (C) is called the "High 1" method.  Both methods            compute  "average current  earnings"  without regard  to  the            limitations  on the  maximum earnings  creditable for  Social            Security  purposes specified  in 42  U.S.C.     409(a)(1) and            411(b)(1).                 3These wages  were much  lower than those  claimant earned               3            during  her  last years  of  "non-covered"  employment as  an            accountant with the federal government.                                         -6-            subtracted  from the  sum of  claimant's Social  Security and            CSRS benefits, as required by   424a(a)(3)-(6), the $919 CSRS            benefit  was left as the amount to be "offset", or subtracted            from,  claimant's total  Social Security benefits.   However,            since claimant's  CSRS benefit  exceeded her Social  Security            benefits,  and     424a prohibits  reducing  Social  Security            benefits below zero, application of a $919 offset effectively            reduced claimant's Social Security benefits to zero.                                       Claimant disputed the  SSA's computations and  requested            reconsideration.   The  SSA reaffirmed  its position  both on            reconsideration   and  in   a  subsequent   decision   by  an            administrative  law judge  (ALJ), who  found that  the offset            provision had been properly applied.  The   Appeals   Council            upheld  the  ALJ's  decision,  thus rendering  it  the  final            decision of the Commissioner.                    Claimant  thereafter  commenced   this  proceeding   for            judicial review,  arguing, inter alia, that  Congress did not                                       _____ ____            foresee her situation  when it  enacted   424a  and that  the            SSA's  application of  the  offset provision  resulted in  an            undue  hardship  on her.    Noting  that her  remaining  CSRS            benefit fell substantially short of 80% of her pre-disability            earnings,  claimant  maintained  that  the  SSA  should  have            computed  her "average  current earnings"  based on  her non-            covered federal earnings from  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  after            the  SSA had eliminated them under the offset provision.  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"  based only  on his  years of            covered employment).4                                 4                 The district  court upheld the Commissioner.   The court            rejected  claimant's  contention  that  the  offset provision            should  not  apply to  blind  persons,  reasoning that  other            provisions of the Social  Security Act and regulations showed            that Congress and  the Commissioner clearly knew  how to make            exceptions for the blind when they wished to do so.   Relying            on  Smith  v.  Sullivan,  982  F.2d  308,  311-15  (8th  Cir.                _____      ________            1992)(holding that  SSA  correctly excluded  claimant's  non-            covered federal  earnings from  calculation  of his  "average            current  earnings"),  the  court  also  found  that  the  SSA            properly  calculated  the  offset.    Claimant  appeals  this            decision.                                         II.                                            ____________________               4 Claimant  also argued that  Congress did not  intend the               4            offset provision to  apply to her  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  us   is  whether   the            claimant's "average current earnings",  as defined in   424a,            were  properly based  only on  claimant's years  of "covered"            employment or  whether, as  claimant  contends, they  instead            should  have been  based on  her most  recent years  of "non-            covered" employment.     Our  standard  of  review  is  well-            established:                      When   a   court   reviews  an   agency's                      construction  of  the  statute  which  it                      administers,  it  is confronted  with two                      questions.      First,  always,   is  the                      question  whether  Congress has  directly                      spoken to the  precise question at issue.                      If  the intent of Congress is clear, that                      is the end of  the matter, for the court,                      as well as the  agency, must give  effect                      to the unambiguously expressed  intent of                      Congress.      If,  however,   the  court                      determines  Congress   has  not  directly                      addressed the precise question  at issue,                      the  court does not simply impose its own                      construction of the  statute, as would be                      necessary   in   the   absence    of   an                      administrative interpretation.    Rather,                      if  the statute  is  silent or  ambiguous                      with  respect to the  specific issue, the                      question  for  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  that  "average  current            earnings"  must be based on "covered  earnings," she urges us            to reject  such  an  interpretation in  favor  of  one  which                                         -9-            comports  with  her view  of  Congressional intent.5    As we                                                               5            explain below,  we reject claimant's arguments,  for they are            not supported by either the plain language of the statute nor            a fair reading of its legislative history.  We begin with the            language  of the statute. See  Stowell v. Secretary of Health                                      ___  _______    ___________________            and Human Services, 3 F.3d 539, 542 (1st Cir. 1993).            __________________            The Statute            ___________                 We  first observe  that nothing  on the  face of    424a            indicates whether  claimant's "average current  earnings" may            be based only on "covered" earnings.  The Commissioner argues            that the plain  language of  42 U.S.C.     409(a) and  410(a)            requires the  exclusion of claimant's  "non-covered" earnings            from  the  computation  of  her  "average  current  earnings"            because her federal earnings may  not be deemed "wages" under            the Social Security Act.  We agree.                  The  definition  of  "average  current  earnings"  in               424a(a) depends on either the "average monthly  wage" used to            compute  a  claimant's    Social  Security  benefits  or  the            claimant's "wages and self-employment  income."6   The Social                                                           6                                            ____________________               5Claimant   also   contends   that    the   Commissioner's               5            interpretation  of  "average current  earnings"  violates due            process and  equal protection because the  claimant in Dunkin                                                                   ______            was  allowed  to  keep  his Social  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  based on            the average monthly wage used to compute her  Social Security            benefits,  we confine our analysis to the meaning of the term            "wages."                                          -10-            Security Act  defines the term "wages"  as "remuneration paid            ... after 1950 for  employment...." 42 U.S.C.   409(a).   The            definition of the term  "employment" excludes service such as            that performed by claimant for the federal government. See 42                                                                   ___            U.S.C.   410(a).7  It  follows, then, that because claimant's                            7            federal service does not qualify as "employment," her federal            earnings may not  be deemed "wages" for purposes of computing            her "average current  earnings" under  the offset  provision.            Accord Smith  v. Sullivan,  982 F.2d  at  313-15; Prather  v.            ______ _____     ________                         _______            Shalala,  844 F. Supp. 239,  240-41 (D. Md.  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   409(a)).                 The  plain meaning  of  a statute's  text must  be given            effect  "unless  it would  produce  an absurd  result  or one                                            ____________________               742  U.S.C.     410(a)  excludes from  the  definition  of               7            "employment" any post-1950 "[s]ervice performed in the employ            of the  United  States ...  if such  service -  (A) would  be            excluded  from the  term  'employment' for  purposes of  this            subchapter if the  provisions of  paragraphs (5)  and (6)  of            this  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  ...."    Tremblay worked  for  the  federal            government  after 1950  and receives a CSRS annuity. Her work            would have been excluded  from the definition of "employment"            if    5  and 6  of    410 as in  effect in  January 1983  had            remained in  effect, for  the latter paragraph  excluded from            the  definition of  employment federal  service covered  by a            retirement system established by  federal law.  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  excerpts from    424a's legislative history,            claimant  contends  that   the  offset  resulting   from  the            exclusion  of  her  non-covered  federal  earnings  from  the            computation  of  her   "average  current  earnings"  violates            Congress's intent to leave disabled workers with 80% of their            pre-disability earnings.  She maintains that her CSRS pension            equals  only 31.7% of the  monthly salary she  earned  before            she  became blind  and  that Congress  expressly intended  to            avoid  leaving disabled  workers with  such  a slim  amount.             Claiming that  "overwhelming" case law supports her position,            claimant urges  us to reject a literal  interpretation of the            statute in  favor of one  that furthers Congress's  intent to            leave  disabled  workers  with  80% of  their  pre-disability            earnings.8                     8                 While we recognize the ongoing debate over the propriety            of  using  legislative  history  as  a  means  to  discern  a            statute's  intent, see,  e.g.,  Strickland  v.  Commissioner,                               ___   ____   __________      _____________            Dept. of Human  Services, 48  F.3d 12, 17  (1st Cir.),  cert.            ________________________                                _____                                            ____________________               8Claimant contends that such  cases as Sciarotta v. Bowen,               8                                      _________    _____            837 F.2d  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  Cir. 1992), support  her contention that  this court            should  reject the literal meaning of the statute in favor of            one which  furthers Congressional intent.   Neither these nor            the remaining  cases that claimant cites  address the precise            issue before us.  Therefore, they are not controlling.                                            -12-            denied, 116  S. Ct. (1995)(collecting cases),  we will assume            ______            that  we "may  consult  relevant legislative  history ...  to            confirm an  interpretation indicated by the  plain language [            of a  statute]."  Grunbeck v. Dime  Savings Bank of New York,                              ________    _______________________________            FSB, 74 F.3d 331, 336 (1st  Cir. 1996). We conclude that  the            ___            legislative  history, while  occasionally  ambiguous, on  the            whole  supports  the  Commissioner's  interpretation  of  the            statute.            Legislative History            ___________________                 Claimant is  correct that the  Senate Finance  Committee            report  that  accompanied     424a,  as  originally  enacted,            indicates   that  Congress intended  the offset  provision to            leave  disabled workers  with 80%  of their  "average monthly            earnings prior  to the  onset of  disability."   However, the            latter phrase was qualified. The report states that:                         The new offset provision ... provides for                      a  reduction  in   the  social   security                      disability  benefit   (except  where  the                      State workmen's compensation law provides                      for an offset ...)  in the event that the                      total   benefits   paid  under   the  two                      programs   exceed   80  percent   of  the                      worker's  average monthly  earnings prior                      to the  onset of disability.   Under this                      provision,  the worker's  average monthly                      earnings would  be defined as  the higher                      of  (a) his average monthly wage used for                      purposes of computing his social security                      disability  benefit  or  (b) his  average                      monthly  earnings, in  employment covered                                         in  employment covered                      by  social security, during his highest 5                      by  social security                      consecutive  years  after  1950....  This                      reduction  formula would  generally avoid                      the   inequity   encountered  under   the                      previous  offset   provision,  where  the                                         -13-                      reductions that  were required frequently                      resulted  in  benefits  that replaced  no                      more  than  30  percent  or  so   of  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.  (emphasis supplied).   The  emphasized language  shows            that  Congress  intended  "average current  earnings"  to  be            synonymous  with  "covered"  earnings.   This  assumption  is            repeated  in other parts  of the Senate  Report.   See id. at                                                               ___ __            2041 (describing hypothetical application  of   424a in which            worker's  "average monthly  wage"  is based  on his  "average            covered earnings");  id. at 2200 (computing worker's "average                                 ___            current earnings" based on wages and income "credited to  his            social  security  account").     Thus,  when the  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    424a  also supports  the view that  Congress            intended  "average  current earnings"  to  be  based only  on            "covered"  earnings.  See, e.g., S. Rep. No. 744, 90th Cong.,                                  ___  ____            1st Sess.  (1967), reprinted in 1967  U.S.C.C.A.N. 2834, 2884                               _________ __            (noting that "average current earnings" under   424a equalled            the  larger  of a  worker's  average  monthly wage  used  for            computing his social security  benefit or his average monthly            earnings during  the 5  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,  directs the  exclusion of            claimant's non-covered federal  earnings from the calculation            of  her "average  current  earnings" and  the offset  applied            here.  Apart from a  single excerpt referring to "non-covered            wages,"  the  legislative history  of     424a confirms  this            result.   Whatever doubts might be raised by this excerpt are            put to rest  by more  recent developments.   We note that  in            January 1989,  Senator  Moynihan offered an amendment to  the            offset  provision that  would  have specifically  allowed the            non-covered earnings  of  former  public  employees  such  as            claimant  to be  considered in  calculating  "average current            earnings."  See  S. 213, 101st Cong., 1st Sess. 1115  (1989).                        ___            That amendment was  not passed. See Prather  v. Sullivan, 844                                            ___ _______     ________            F. Supp. at 241 n. 1;  Clevinger v. Sullivan, 813 F. Supp. at                                   _________    ________                                            ____________________            The only contrary indication  that we have been able  to find            appears in a Senate  Budget Committee Report that accompanied            the Omnibus  Budget Reconciliation  Act of 1981.  Inter alia,                                                              _____ ____            that Act extended the offset provision so that it would apply            to  individuals receiving  disability benefits  from federal,            state, or local governments.  The Budget Committee report, in            an  apparent  reference to  the "High  1" method,  says that,            "average  current earnings  generally refers  to  the highest            annual amount of covered  and non-covered wages earned during                                          non-covered wages            the  6-year period consisting of the year in which the worker            becomes disabled and  the 5 preceding years...."  S. Rep. No.            139, 97th  Cong.,  1st Sess.  428 (1981),  reprinted in  1981                                                       _________ __            U.S.C.C.A.N. 693,  694  (emphasis  supplied).    This  single            statement  is  alone insufficient  to undermine  the previous            expressions of  Congressional intent to base "average current            earnings" only on "covered" earnings.  "Congress cannot amend            a statute  merely  by  inserting  the proposed  change  in  a            congressional report...." Strickland  v. Commissioner,  Dept.                                      __________     ____________________            Human Services, 48 F.3d at 18.                  ______________                                         -15-            422 n. 2.  "To be sure, non-action by  Congress is ordinarily            a dubious guide"  to legislative intent.  Brown  v. Secretary                                                      _____     _________            of  Health and  Human Services,  46 F.3d  102, 108  (1st Cir.            ______________________________            1995).   But thereafter, the SSA  promulgated Social Security            Ruling  (SSR)   92-2a.    That  ruling   indicated  that  the            Commissioner would  require "average current earnings"  to be            based  only  on  "covered"  earnings.   Although  the  offset            provision  has  been amended  in  other  respects since  this            ruling was  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   Congress's  intent.  Cf.  United  States  v.                                                  ___  ______________            Rutherford,  442 U.S.  544,  554  n. 10  (1979)(Congressional            __________            inaction after agency position has  been fully brought to the            attention  of the  public  and Congress  suggests agency  has            correctly discerned legislative intent).10                                                    10                                         III.            Conclusion             __________                                            ____________________               10As other  courts have  noted, there are  several reasons               10            why  the decision to base  "average current earnings" only on            "covered  earnings"  is  reasonable.    See,e.g.,  Smith   v.                                                    ___ ____   ________            Sullivan,  982  F.2d at  344 (noting  that  it is  logical to            ________            exclude wages  on which  an  individual has  not paid  Social            Security taxes from computation of benefit limit); Prather v.                                                               _______            Sullivan,  844  F.  Supp.  at 241  ("Congress's  decision  to            ________            exclude  non-covered wages from  the average current earnings            calculation  ...  is  rationally   related  to  the  goal  of            preserving scarce  resources  where the  individual  receives            benefits from other sources.").                                          -16-                 Where the plain language  and legislative history of the            statute  indicate that  the Commissioner's  interpretation is            consistent with Congress's intent,  this court may not devise            a  contrary interpretation.      We  further discern  no  due            process or  equal protection violation arising  from the fact            that the plaintiff in Dunkin had his Social Security benefits                                  ______            reinstated  while claimant's  benefits have  been eliminated.            Apart from the fact that  Dunkin lacks precedential value  as                                      ______            an  unpublished  decision,  it  was decided  before  the  SSA            promulgated  SSR  92-2a.   "An  agency that  is  charged with            administering  a  statute  remains  free  to  supplant  prior            judicial  interpretations  of that  statute  as  long as  the            agency interpretation is ...  reasonable ...."  United States                                                            _____________            v.  LaBonte,  70  F.3d  1396, 1405  (1st  Cir.  1995),  cert.                _______                                             _____            granted, 116  S. Ct. 2545  (1996).11   At bottom,  claimant's                                              11            _______            arguments challenge the  Commissioner's policy judgment  that            non-covered  earnings  must  be  excluded  under  the  offset            provision. "When a challenge  to an agency construction of  a            statutory provision, fairly conceptualized, really centers on            the  wisdom of the agency's policy, rather than whether it is            a reasonable choice within  a gap left open by  Congress, the            challenge must  fail."  Chevron v.  Natural Resources Defense                                    _______     _________________________            Council, 467 U.S. at  866.  Accordingly, the judgment  of the            _______                                            ____________________               11Claimant's argument  that the district court  engaged in               11            misconduct by relying on the defendant's memorandum is wholly            meritless.                                         -17-            district court is affirmed.                              ________                                         -18-
