UNPUBLISHED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.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Dallas K. Mathis, Judith Mathis, MATHIS & MATHIS, P.C., Arlington, Virginia, for Appellant. James A. Winn, Acting Chief Counsel,

Region III, Margaret J. Krecke, Assistant Regional Counsel, Office of

General Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylvania; Helen Fahey, United States Attorney, Mere-
dith Manning, Assistant United States Attorney, Alexandria, Virginia,

for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

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

_________________________________________________________________

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 implemented 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 benefit is also, for that month, concurrently entitled to a periodic

benefit (including worker's compensation or any other payments 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.

 2
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 statutorily 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 Commerce and again applied for disability insurance benefits. After a tortured administrative procedural history, the Commissioner issued a

final decision concluding that, based on § 404.408, Giattina's disability 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 addition, 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 entitled 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 provision is erroneous.

Appellant argues that two elements of the Commissioner's interpretation are erroneous. In Appellant's estimation, Giattina either

"first became entitled to . . . benefits" in March 1966--well before

_________________________________________________________________

3 Appellant does not challenge the validity of § 404.408 itself. Therefore, the question of whether that regulation constitutes a valid interpretation of the governing statute, 42 U.S.C. § 4249, is not before us.

 3
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 provision 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 disability. 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 reasonable." Even so, Appellant has not discharged her burden of showing 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 disability, which began only with his inability to continue"substantial gainful 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 activity, he was once again disabled, leading to two distinct periods of disability for the purposes of the regulation. The disability in question,

_________________________________________________________________

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 Giattina's.

 4
then, began in 1988 and brings Giattina squarely within the offset

provision.5

Appellant argues that the Commissioner's interpretation of the regulations "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" language, 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 interpretation of the regulations which would allow Giattina's blindness to

be treated as two distinct disabilities is not "plainly erroneous" or contrary to the regulations' language.

As a result, we affirm the district court's order granting the Commissioner's motion for summary judgment and affirming the determination 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 argument would not aid the decisional process.

AFFIRMED

_________________________________________________________________

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 discontinues 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 disabled 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 disability among claimants at least 55 years of age from the requirements

for a blindness disability for claimants under age 55).

 5