- The Washington Times - Sunday, October 19, 2003

It is the rare Supreme Court decision that will affect only the person who appealed, but that seemed the point as justices heard a detailed plea for disability pay this week for 61-year-old former elevator operator Pauline Thomas.

Mrs. Thomas’s lawyer, Abraham S. Alter, told the justices a 1988 heart attack forced her to leave her longtime housekeeping job at a nursing home, but instead of filing for federal disability pay, she drove elevators for eight years and would do so again if only there still were elevators to drive.

“We’re talking about a job which may not exist at all,” Mr. Alter told Justice Sandra Day O’Connor in defending his 8-3 victory on that very point before the 3rd U.S. Circuit Court of Appeals, which agreed there are few jobs the ailing and aging New Jersey woman can adjust to and, therefore, she is entitled to Social Security disability benefits.

But one justice after another reminded Mr. Alter that, like the elevator business, his argument before them on Tuesday had its ups and downs.

“I don’t know about ‘it doesn’t exist.’ We have elevator operators in this building,” Justice Stephen G. Breyer said, with his trademark ‘gotcha’ grin.

“Yes, I know. I gave one my card,” Mr. Alter fired back, risking breaking the unwritten rule against humor. He succeeded, however, in getting the entire courtroom and most, if not all, of the nine justices to laugh at the specter of a lawyer soliciting clients inside their domain.

Mrs. Thomas was an elevator operator at the Hudson County administration building in Jersey City. However, in 1995, the county put in automated elevators, resulting in her losing her job.

Although some of her fellow elevator operators succeeded in finding jobs in different county positions, Mrs. Thomas claims that her weak heart prevented her from doing so.

Ever since then, she has been seeking Social Security disability benefits, but Mrs. Thomas has not asserted the standard disability claim that she was physically unable to perform her last job. Rather, she claims that technology has all but eliminated her last occupation, and she cannot do anything else.

However, Assistant Solicitor General Jeffrey A. Lamken made no jokes as he asked the high court to overturn the 3rd Circuit’s June 2002 decision, in an argument so brief and decisive it seemed there could be no reply.

“If they could return to their old job, it’s virtually certain they remain capable of doing some work,” Mr. Lamken said.

Mr. Lamken finished his planned speech in five minutes instead of the 30 minutes allotted to each side. He asked to reserve the remaining time, but justices peppered him with questions for six more minutes and left him 19 minutes for rebuttal, which he did not use.

He conceded along the way that government policy likely would have allowed Mrs. Thomas, who was 54 when her elevator job hit bottom, to receive disability pay, had she been just one year older when she filed.

Veterans in court and government legal circles could not recall anything shorter than the brisk presentation by Mr. Lamken, who chose not to discuss his tactic with a reporter. Justice Department lore includes a seven-minute argument in an unspecified case decades ago, but most agreed Mr. Lamken’s delivery likely was the shortest ever.

Four of the high court’s elevators require operators, and five operators run them. Across the street, the U.S. Capitol employs live operators for some elevators, including six on the Senate side alone.

In the business world, however, the job is so close to obsolete that the Labor Department no longer includes occupation K454 in the Occupational Outlook Handbook from the Bureau of Labor Statistics.

Exceptions are newsworthy.

The Seattle Times reported this summer that the 42-story Smith Building, once the tallest structure west of Chicago, has 14 operators for seven elevators and is the only elevator building in Seattle other than the Space Needle with operators.

However, in New York, some of the 2,000 members of Local 1 of the elevator workers union include operators who earn up to $1,400 a week, plus overtime, according to the New York Times. Only members of that union can work on some jobs.

Peter Dervis of Dervis Historical Resources describes elevator operators as “a fading memory,” along with soda jerks and the milkman.

A few justices seemed to agree with Mr. Lamken that the obsolescence of an occupation does not justify disability pay.

“The word is disabled, not unemployed,” said Justice Antonin Scalia, adding Mrs. Thomas should seek help at the unemployment office.

Mr. Alter, a Rahway, N.J., lawyer who specializes in Social Security cases, put himself bluntly on the line for a client who would receive just $672 a month from the government if she wins the case. His fee would be paid by the government.

During his brief time at the lectern, Mr. Alter managed to describe Justice Scalia as “illogical” and Justice O’Connor as “unreasonable,” and he told Justice Breyer one of his statements “doesn’t make sense.”

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