UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion.

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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.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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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
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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.

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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
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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.

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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,
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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.

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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
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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).

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