RONALD LEE GILMAN, Circuit Judge.
The Commissioner of Social Security imposed an assessment of $51,410 and a civil monetary penalty of $75,000 on petitioner Michelle Valent after the Social Security Administration found that Valent failed to disclose that she had engaged in paid work activity while receiving Social Security disability benefits. Valent argues that 42 U.S.C. § 421(m)(1)(B) prohibits the Administration from considering her work activity in determining whether she continues to be eligible as a disability-benefits recipient.
She therefore contends that her failure to disclose her paid work activity was not a material omission, such an omission being a prerequisite for the Administration to impose an assessment and a penalty under 42 U.S.C. § 1320a-8(a). Finally, she asserts that even if her failure to disclose her paid work activity was a material omission, she did not have actual or constructive knowledge that her omission was material. For the reasons set forth below, we DENY Valents petition for review and AFFIRM the judgment of the Departmental Appeals Board.
I. BACKGROUND
A. Statutory framework
The Social Security Act provides for the payment of benefits to individuals with a disability, which, as relevant here, is defined as a medically determinable physical or mental impairment that prevents a person from doing any substantial gainful activity for at least 12 months. 42 U.S.C. § 423(d)(1)(A). To receive disability benefits under the Act, an individual must apply to the Commissioner, who determines whether the applicant satisfies the statutory criteria. 42 U.S.C. § 423(a) - (b).
Once an individual qualifies for benefits, the Commissioner must periodically verify that the beneficiary continues to be eligible for the program, a process called a continuing disability review. 42 U.S.C. § 421(i), (m). Congress amended the Act in 1999 to help individuals with disabilities return to work. Pub. L. No. 106-170, § (2)(a)(11), 113 Stat. 1860. The amended Act provides that, for the purpose of determining whether an individual who has received benefits for at least 24 months remains entitled to receive them, no work activity engaged in by the individual may be used as evidence that the individual is no longer disabled. 42 U.S.C. § 421(m)(1)(B). But the Act also states that the Commissioner may terminate benefits if the beneficiary has earnings that exceed the level of earnings established by the Commissioner to represent substantial gainful activity. 42 U.S.C. § 421(m)(2)(B).
B. Factual background
Valent applied for Social Security disability benefits in October 2003. The Administration found that she was disabled since March 2003, based primarily on various psychological problems, including depression. The Commissioner conducted a continuing-disability review in 2010 and found that Valent remained disabled.
But in January 2012, the Administrations Office of Inspector General (IG) received a tip that Valent had been working since 2009 at the War Era Veterans Alliance, an organization founded and owned by her brother and sister-in-law. A month later, the IG began an investigation into whether Valent had indeed worked at the Alliance. Valent signed forms during that investigation affirming that she had not earned income since 2003 or worked since 2004.
The IG, to the contrary, concluded that Valent had been working at the Alliance since 2009 and that her failure to report her paid work activity was an omission of a material fact. See 42 U.S.C. § 1320a-8(a). Based on that omission, the IG recommended that Valent be assessed $68,547 (the amount of benefits paid to her since she had returned to work) and that she pay a civil penalty of $100,000 for her failure to report her paid work activity to the Administration. Section 1320a-8(a)(1)(C) authorizes the Administration to impose a penalty of up to $5,000 for each statement or representation in which an individual receiving Social Security disability benefits withheld material information. The IG determined that Valent made 41 material omissions-one for each month during which she received benefits without disclosing her work activity that generated earnings. He then decided to impose a penalty of $100,000 instead of the maximum penalty of $205,000.
C. Procedural background
Valent requested a hearing before an administrative law judge (ALJ), who heard testimony from the tipster and from Valents brother, among others. Her brother testified that he had assigned Valent simple tasks and paid her about $400 per week, essentially as an act of charity. In a June 2014 decision, the ALJ agreed with the IGs finding that Valent had indeed worked for and been paid by the Alliance, her brothers motivation notwithstanding. But the ALJ disagreed with the IG that Valents unreported work activity was an omission of a material fact because, according to the ALJ, 42 U.S.C. § 421(m)(1)(B) prevents the Commissioner from considering work activity in evaluating whether [Valent] continued to be entitled to benefits or payments under the Act. The ALJ therefore held that the IG had no basis for either the assessment or the penalty.
The Departmental Appeals Board (the Board) reversed the ALJs ruling in November 2014, concluding that the ALJs interpretation of 42 U.S.C. § 421(m)(1)(B) was incorrect. Specifically, the Board held that [s]ince work is relevant in determining whether amounts paid to a recipient are earnings from work, work is a fact [that the Administration] may consider in determining whether a 24-month recipient is entitled to benefits. The Board remanded the case to the ALJ to make factual findings as to whether Valent knew or should have known that the omission of her work activity that generated earnings was material and would mislead the Administration.
On remand, the ALJ reiterated his opinion that § 421(m)(1)(B) barred the Administration from considering Valents work activity. He therefore concluded that Valent had no reason to know that her failure to disclose her work activity was an omission of a material fact. Ultimately, the ALJ held that the Social Security Act and the Administrations regulations are not clear enough for a person of reasonable intelligence to know what activity is reportable as work activity. The ALJ accordingly again declined to impose either an assessment or a penalty.
Once more, the Board reversed the ALJs decision. It noted that constructive knowledge that an omission of fact is material is sufficient under 42 U.S.C. § 1320a-8(a). Furthermore, the Board disagreed with the ALJs conclusion that the regulatory scheme is so confusing that a reasonable person would not know that withholding the report of gainful work activity constitutes the omission of a material fact. So although the Board deferred to the ALJs findings of fact, it imposed a special assessment of $51,210 and a penalty of $75,000, both of which were less than the amounts originally levied by the IG. This petition for review followed.
II. ANALYSIS
A. Standard of review
We review the Administrations interpretation of law under the framework established in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). That framework requires us to engage in a two-step inquiry. 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. Id. at 842-43, 104 S.Ct. 2778. We engage in step two if the statute is silent or ambiguous with respect to the specific issue. Id. at 843, 104 S.Ct. 2778. Then, the question for the court is whether the agencys answer is based on a permissible construction of the statute. Id.
For agency determinations that are not interpreting a statute, we will set them aside only if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Steeltech, Ltd. v. EPA , 273 F.3d 652, 655 (6th Cir. 2001) (quoting 5 U.S.C. § 706(2)(A) ) (applying this standard to the EPAs imposition of a civil penalty). And we will accept the Administrations findings of fact if they are supported by substantial evidence on the record considered as a whole. 42 U.S.C. § 1320a-8(d)(2).
B. Section 421(m) of the Social Security Act is ambiguous, and the Administrations interpretation of that section is based on a permissible construction of the statute.
The key interpretive question before us is whether the failure of an individual who receives Social Security disability benefits to report work activity that generates earnings constitutes the omission of a material fact under 42 U.S.C. § 1320a-8(a). That statute authorizes the Commissioner to impose an assessment and a penalty when a recipient of Social Security disability benefits omits from a statement or representation ... or otherwise withholds disclosure of, a fact which the person knows or should know is material to the determination of any initial or continuing right to or the amount of monthly insurance benefits. 42 U.S.C. § 1320a-8(a)(1)(C).
Under step one of the Chevron framework, Congress has not directly spoken to the precise question at issue. See Chevron , 467 U.S. at 842, 104 S.Ct. 2778. Specifically, the Social Security Act is ambiguous with respect to the question at issue because 42 U.S.C. § 421(m)(1)(B) and m(2)(B) appear to conflict with one another. Section 421(m)(1)(B) states that when an individual has received Social Security disability benefits for at least 24 months, no work activity engaged in by the individual may be used as evidence that the individual is no longer disabled. But § 421(m)(2)(B) states that such an individual shall be subject to termination of benefits under this subchapter in the event that the individual has earnings that exceed the level of earnings established by the Commissioner to represent substantial gainful activity. These two provisions create an ambiguity as to whether the Commissioner may consider an individuals work activity that generates earnings. Section 421(m)(1)(B) appears to proscribe taking such activity into account, yet the Commissioner would need to do so in order to determine whether the individual has earnings that amount to substantial gainful activity.
The Second Circuit in Cappetta v. Commissioner of Social Security Administration , 904 F.3d 158 (2d Cir. 2018), addressed this very question and held that although § 421(m)(1) makes work activity irrelevant as both a reason to conduct a continuing disability review, and as evidence in such a review, the statute just as clearly permits the [Administration] to consider substantial gainful activity to terminate benefits. Id. at 168. In Cappetta , the court resolved the issue at step one of the Chevron framework, holding that the Commissioner may properly consider a failure to report work activity that generates profit or pay material for purposes of § 1320a-8, and that the plain text of the statute authorizes the Commissioner to do so. Id. (The term profit or pay comes from the Administrations definition of substantial gainful activity. See 20 C.F.R. § 404.1572.)
Although we disagree with the Second Circuits holding that the statute unambig uously authorizes the Commissioner to consider a failure to report work activity that generates profit or pay material for purposes of § 1320-8, Cappetta , 904 F.3d at 168, we acknowledge that another circuits differing interpretation of the very statute at issue is evidence of ambiguity in the statutory scheme. See Salazar v. Butterball, LLC , 644 F.3d 1130, 1137 (10th Cir. 2011) (holding that a circuit split over whether donning and doffing personal protective equipment is considered changing clothes under 29 U.S.C. § 203(o) shows that the term changing clothes is ambiguous). We therefore conclude that the statute is ambiguous as to whether a failure to report work activity that generates profit or pay is a material omission under 42 U.S.C. § 1320a-8.
Having determined that the statutory scheme is ambiguous, we now move on to the second step of the Chevron framework: whether the agencys answer is based on a permissible construction of the statute. See Chevron , 467 U.S. at 843, 104 S.Ct. 2778. The Board concluded that the Administration can consider a beneficiarys work activity for purposes of determining whether she had earnings from that work activity at the substantial gainful activity level, making information about her work material for purposes of [42 U.S.C.] section [1320a-8](a)(1). In support of this position, the Commissioner argues that the Administration can consider work activity for the vocational element of disability, a term that she defines as synonymous with the recipient engaging in substantial gainful activity. The Commissioner in essence acknowledges that the Administration cannot take work activity into account to conclude that a beneficiary like Valent is no longer suffering from a medical disability. But, the Commissioner argues, the Administration can take work activity into account in determining whether a beneficiary is engaging in substantial gainful activity. According to the Administration, a failure to report work activity that generates profit or pay is a material omission under 42 U.S.C. § 1320a-8 because such activity is relevant to the beneficiarys continuing right to ... benefits. See 42 U.S.C. § 1320a-8(a)(1)(C). This argument rings true because work activity that generates earnings can amount to substantial gainful activity, which is a proper ground for terminating benefits under 42 U.S.C. § 421(m)(2)(B).
We conclude that the Administrations interpretation is a permissible construction of the statute. Valents position is that the Administration can consider substantial gainful activity but not work or work activity. As the Commissioner argues, however, this construction of the statutory scheme makes no sense and would be impossible to implement. The Administration would be unable to examine a beneficiarys substantial gainful activity without considering the beneficiarys work activity that generates profit or pay.
Nor does the Administrations interpretation read out or ignore 42 U.S.C. § 421(m)(1)(B). It instead interprets that section, which prohibits the Administration from considering work activity ... as evidence that the individual is no longer disabled, to bar it from considering work activity in determining whether a beneficiary is medically disabled. In other words, according to the Administrations permissible construction of the statute, if an individual claims Social Security disability benefits because of, say, a back injury, and the Administration later determines that the individual was engaging in manual labor that belies his or her back injury, then it cannot use this work activity as evidence that the individual is no longer medically disabled. But if the work activity generates profit or pay, then the Administration can consider the work activity in determining whether the individual has earnings that exceed the level of earnings established by the Commissioner to represent substantial gainful activity under § 421(m)(2)(B).
The Administrations interpretation of the statutory scheme is further supported by the legislative history of 42 U.S.C. § 421(m). Subsection (m) was added to the Social Security Act as part of the Ticket to Work and Work Incentives Improvement Act of 1999. Pub. L. No. 106-170, § 111(a), 113 Stat. 1860. The official committee report for that Act explains that the changes in § 421(m) are intended to encourage long-term SSDI [Social Security Disability Insurance] beneficiaries to return to work by ensuring that work activity would not trigger an unscheduled medical review of their eligibility. H.R. Rep. No. 106-393, pt. 1, at 45 (1999) (emphasis added). It continues, however, by noting that, like all beneficiaries, long-term beneficiaries would have benefits suspended if earnings exceeded the substantial gainful activity level, and would be subject to periodic continuing disability reviews. Id.
As the Second Circuit held in Cappetta , [t]hose observations support the Commissioners reading of the statute, because they demonstrate Congresss clear intent to continue making substantial gainful activity-which the SSA assesses by looking primarily at earnings derived from work -relevant and applicable to SSDI beneficiaries. Cappetta , 904 F.3d at 169 (emphasis in original). In sum, we defer to the Administrations permissible construction of 42 U.S.C. § 421(m)(1)(B) and (m)(2)(B) as allowing it to consider a beneficiarys work activity that generates profit or pay because such activity goes to the beneficiarys substantial gainful activity. We also defer to the Administrations permissible construction that a failure to report work activity generating profit or pay constitutes a material omission under 42 U.S.C. § 1320a-8.
C. The Administrations imposition of an assessment and a penalty in this case is consistent with its permissible construction of the Social Security Act.
This leaves the question of how to apply the above principles to the present case. Both the IG and the Board found that Valent made a material omission under 42 U.S.C. § 1320a-8 when she failed to disclose her work activity with the War Era Veterans Alliance, an activity that generated profit or pay. According to the dissent, Valents assessment and penalty in this case were based solely on her failure to report work activity, not on her failure to disclose earnings. Dissenting Op. 526-27. The dissent further notes that the Commissioners counsel agreed during oral argument that the Commissioner imposed an assessment and a penalty in the present case based on Valents failure to disclose work activity. Dissenting Op. 526-27.
But the dissent overlooks the Administrations conclusion that work activity is a necessary component of substantial gainful activity, which is a proper ground for terminating benefits under 42 U.S.C. § 421(m)(2)(B). Under the Administrations permissible construction of the Social Security Act, it can consider a beneficiarys work activity as an element of substantial gainful activity. But it cannot take work activity into account (after the beneficiary has received benefits for at least 24 months) to conclude that the beneficiary is no longer suffering from a medical disability. Here, the Administration did not use Valents work activity to make any conclusions regarding her medical disability, so its imposition of an assessment and a penalty in this case is consistent with the Administrations permissible construction of the statute.
The dissent also contends that the Commissioner imposed the sanction based solely on Valents failure to report work activity period -without regard to whether she received any earnings from that activity. Dissenting Op. 526 (emphasis in original). We respectfully disagree. In the IGs June 3, 2013 letter to Valent, the IG states that Valent failed to report to [the Administration] that [she] worked at the War Era Veterans Alliance and that her brother, the coowner of the Alliance along with Valents sister-in-law, paid [her] $400 per week. Valent was thus being paid for her work, and the Administration took this fact into account when it imposed an assessment and a penalty. Whether the Administration can impose an assessment and a penalty on a beneficiary who fails to disclose unpaid work activity is not a question before us because Valent engaged in and failed to disclose her paid work activity with the Alliance.
D. Valent had constructive notice that her failure to report her work activity that generated profit or pay was a material omission that misled the Administration.
As we concluded earlier (see Part II.B. above), we defer to the Administrations permissible determination that a failure to report work activity that generates profit or pay is a material omission under 42 U.S.C. § 1320a-8. We now turn to the two other elements of § 1320a-8 : (1) whether Valent knew or should have known that her omission was material, and (2) whether she knew or should have known that her omission was misleading to the Administration. See 42 U.S.C. § 1320a-8(a)(1)(C). The Board, in its second decision in this case, concluded that Valent should have known that the failure to report her paid work activity with the Alliance was a material omission that misled the Administration.
We agree with the Board that the statutory scheme and the Administrations regulations put Valent on constructive notice that her failure to report was material. As the ALJ held on remand, [t]he Administrative Procedure Act requires publication of legislative rules adopted by federal agencies and, based on that publication[,] the public has at least constructive, if not actual knowledge of the requirements of the regulations. Several regulations put Valent on notice of her need to report work activity that generated profit or pay, and that a failure to do so would mislead the Administration.
Substantial gainful activity is defined in 20 C.F.R. § 404.1572 as work activity that you do for pay or profit. And 20 C.F.R. § 404.1588(a) requires recipients of Social Security disability benefits to tell the Administration if they return to work, if they increase the amount of [their work,] or if their earnings increase. All of this is consistent with the statutory framework because, as the Second Circuit held in Cappetta , calculating whether earnings amount to substantial gainful activity that prevent the continuing receipt of disability benefits is a complex undertaking that requires the [Administration] to have a complete picture of a SSDI recipients earnings. Cappetta , 904 F.3d at 169 (citing 20 C.F.R. §§ 404.1574, 404.1592 - 404.1592a ). Ultimately, the Boards conclusion that Valent had constructive notice that her failure to report her work activity with the Alliance was a material omission that misled the Administration is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See Steeltech, Ltd. v. EPA , 273 F.3d 652, 655 (6th Cir. 2001) (quoting 5 U.S.C. § 706(2)(A) ).
The dissent, however, argues that the Administrations own regulation-specifically, 20 C.F.R. § 404.1594 -refutes the position of the Commissioner and shows that Valent did not have constructive notice that her failure to disclose her work activity was a material omission. Dissenting Op. 528-29. We again respectfully disagree. The regulation reads as follows:
If you are currently entitled to disability insurance benefits as a disabled worker ... and at the time we are making a determination on your case you have received such benefits for at least 24 months, we will not consider the activities you perform in the work you are doing or have done during your current period of entitlement based on disability if they support a finding that your disability has ended.
20 C.F.R. § 404.1594(i)(2) (emphasis added).
The regulation is consistent with the position advanced by the Administration in this case. In particular, the regulation states that the Administration will not consider the activities you perform in the work you are doing. Id. This means that the Administration cannot use the activities that a beneficiary performs during work to demonstrate that the beneficiary is no longer medically disabled. But it can use that work activity, if that activity generates profit or pay, as evidence that the beneficiary engaged in substantial gainful activity.
E. The issues raised in Valents supplemental brief are not reviewable.
This brings us to one final matter to be decided, which is based on our request that the parties file supplemental briefs to address the Second Circuits decision in Cappetta . In the course of doing so, Valent raised three new issues in her supplemental brief: (1) whether the Board can impose an assessment and penalty in the first instance, (2) whether the assessment and penalty are supported by substantial evidence, and (3) whether the Administration considered the fact that it suffered no actual loss. But these new arguments are not properly before us because they were not raised in Valents opening brief. See Island Creek Coal Co. v. Wilkerson , 910 F.3d 254, 256 (6th Cir. 2018) (Appellants must raise any challenge to a district court or administrative decision in their opening brief.). In addition, Valent did not challenge the amount of the assessment and penalty before the Board, and our jurisdiction is limited to issues raised administratively. See 42 U.S.C. § 1320a-8(d)(1). We therefore conclude that the new arguments raised in Valents supplemental brief are not reviewable.
III. CONCLUSION
For all of the reasons set forth above, we DENY Valents petition for review and AFFIRM the judgment of the Board.