Record and brief — Heckler v. Campbell

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Text

a.” re

Rate Oltioe Supreme Court, U.S.

8 l “2 1983 FILED

APR 26 198?

No. ALEXANDER L. STEVAS.

——_—_——— eee --—™

Iu the Supreme Court of the United States

OCTOBER TERM, 1981

RicHarD S. SCHWEIKER, SECRETARY OF HEALTH AND

HUMAN SERVICES, PETITIONER

Vv.

CARMEN CAMPBELL

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Rex E. Lge

Solicitor General

J. PAUL McGRATH

Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

JOHN H, GARVEY

Assistant to the Solicitor General

RoBERT S. GREENSPAN

ANNE BUXTON SoBoL

bss Attorneys

oe Department of Justice

Te Washington, D.C. 20530

teas , (202) 633-2217

QUESTION PRESENTED

Whether the Secretary of Health and Human Serv-

ices may in appropriate cases rely upon published

medical-vocational guidelines, rather than individual-

ized proof, to determine whether a claimant for dis-

ability benefits under the Social Security Act is able

to perform substantial gainful work in the national

economy.

(1)

TABLE OF CONTENTS

Page

ENE “Oe PRUNES ES 1

I i 2

Statutes and regulations involved |... 000.0000... 2

Statement Re see siibtichadiuas 2

Reasons for granting the petition .. aaa 9

Conclusion : 19

Appendix A la

a 12a

EERE ES EP AES. Par Se a Ce 16a

I 20a

Appendix E 80a

IR et See ROTATE GALL Nr oe OT 34a

TABLE OF AUTHORITIES

Cases:

Barnett v. Califano, 580 F.2d 28 —.........2.0..20...--. 11

Batterton Vv. Francis, 482 U.S. 416 ..........-- 11-12

Califano v. Sanders, 430 U.S. 99 -...................----.. 3

Chapman Vv. Schweiker, No. 81-1025 (10th Cir.

Feb. 26, 1982) rae 19

Cowart v. Schweiker, 662 F.2d 731 ..................... 19

Cummins Vv. Schweiker, 670 F.2d 81.......... 12, 13, 16-17, 18

Decker v. Harris, 647 F.2d 291 ..................... 9

Epsilantis v. Schweiker, No. 80-1600 (Apr. 13,

1982) 18

Frady Vv. Harris, 646 F.2d 148 18

Geoffroy v. Secretary of Health and Human Serv-

ices, 663 F.2d 315 18

Hall v. Harris, 658 F.2d 260 18

Hephner v. Mathews, 574 F.2d 359 7

(III)

Cases—Continued Page

Hilton v. Schweiker, No. 81-1139 (10th Cir. Feb.

BR MS ciate sli nctctrecitiinniccetiinginbigbielibabiiutiinnptiisiag 19

Kirk v. Secretary of Health and Human Services,

667 F.2d 524 .. -.-2, 12, 14, 16, 18

Parker v. Harris, 626 F.2d 225 7

Rodriguez Vv. Secretary of Health and Human Serv-

ices, No. 81-1610 (1st Cir. Apr. 2, 1982) —........ 18

Salinas v. Schweiker, 662 F.2d 345 -....................... 18

Santise v. Schweiker, Nos. 81-1904 et al. (3d Cir.

Apr. 8, 1982) ...2-8, 10, 12, 17

Schweiker v. Gray Panthers, No. 80-756 (June 25,

Ra OSCR ANS BR SC 11-12, 16

Sharpe V. Harris, 621 F.2d 5380 ...........-........------00--2+- 11

White v. Harris, 605 F.2d 867 ....................-----...----+- 7

White v. Mathews, 559 F.2d 852, cert. denied, 435

U.S. 908 .. 11

Statute and regulations:

Social Security Act, 42 U.S.C. 301 et seq.:

Title II, 42 U.S.C. 401 et seq. .................-2.---0---- 8, 4, 10

3 PA ee .2, 9, 10, 11, 34a

42 U.S.C. 405(g) ........ ach 3

a ee I sig nisicliciertcten 3

8 a EE 2, 3, 34a

42 U.S.C. 423(d) (2) (A) ............ 2, 4, 7, 8, 10-11,

34a-35a

42 U.S.C. 423(d) (5) ........ ile 11

Title XVI, 42 U.S.C. 1381 et seq.:

@ USSG: ieeeta) (8) «......................-.. 3-4

42 U.S.C. 1882c(a) (8) (B) ...................... 2

20 C.F.R. Part 404, Subpart P ............................-... 4

Sections 404.1501 to 404.1598 2.000. 9

RIOD Sire idcbtebestecrrcemessonniscinecinetes 4

Section 404.1520(c) 4

SS a 4

OE TR Sere ae ere eaten 4

Section 404.1545 ale .2, 4, 35a-37a.

Sections 404.1560 to 404.1568 aid 2, 4, 9, 37a-5fa

4 a

Statute and regulations—Continued Page

Section 404.1560 37a-38a

Section 404.1561 38a

a ee 38a-39a

Section 404.1563 .. 39a-41la

Section 404.1563 (a) 15, 39a-40a

I di nincincihcentiinnbitniesinitigniniaian 4la-43a

Section 404.1565 4la-45a

I CED ciciiticecccerenicecbensenniynnns tins 45a-47a

Section 404.1566(d) -.......... .... 6, 47a

SN IID, ch cniisicdhinernsiaeeiaicticienpiitiaenaiasiniatl 47a-49a

EY MID ecisictestnccitaieentecthiashiegeeiciensinielale 15, 48a

I teal 49a-5la

I GIIIIEED . ccncocksnnbistssenteinnssetiniahteecese 14, 5la-52a

Appendix 1 sais ne 4

Appendix 2 2, 5, 7, 9, 14, 15, 52a-75a

I SD Cscitcisetnvsttcctncvensientons 4,5

Section 200.00(b) .............................. 6

Section 200.00(d) .............-.----..-.--.-.. 14

ee 5,14

Section 201.00(a) . ni : 5

eee 14-15

Section 202.00:

RAS TERE ES SSP 15

I IID -citniteneevesinenisincinnbnie 8, 69a

Part 416, Subpart I te aa 4

Miscellaneous:

Comptroller General of the United States, The

Social Security Administration Should Provide

More Management and Leadership In Deter-

mining Who Is Eligible for Disability Benefits

(1976) 12-13

Department of Health and Human Services, Social

Security Annual Report to the Congress for Fis-

cal Year 1980 (1981) 10

43 Fed. Reg. (1978) :

p. 55349 3

45 Fed. Reg. 55566 (1980) —.........---—-------------0---0--=-

> e.. Mashay, Social Security Hearings and Appeals:

2X a\<—7 Sindy of the Social Security Administration

Hearing System (1978) ........

ene

—_

In the Supreme Court of the United States

OCTOBER TERM, 1981

No.

RICHARD S. SCHWEIKER, SECRETARY OF HEALTH AND

HUMAN SERVICES, PETITIONER

CARMEN CAMPBELL

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The Solicitor General, on behalf of the Secretary

of Health and Human Services, petitions for a writ

of certiorari to review the judgment of the United

States Court of Appeals for the Second Circuit in

this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-lla) is reported at 665 F.2d 48. The opinion of

the district court (App. B, infra, 12a-14a) is unre-

ported. The decisions of the Social Security Admin-

istration Appeals Council (App. C, infra, 16a-19a)

and the Administrative Law Judge (App. D, infra,

20a-29a) are unreported.

(1)

T &

JURISDICTION

The judgment of the court of appeals (App. E,

infra, 32a-33a) was entered on November 30, 1981.

A petition for rehearing was denied on February 11,

1982 (App. E, infra, 30a-31a). The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATUTES AND REGULATIONS INVOLVED

The pertinent provisions of Sections 205(a) and

223(d) of the Social Security Act, 42 U.S.C. 405(a)

and 423(d); 20 C.F.R. 404.1545; 20 C.F.R. 404.1560

ito 404. 156$; and 20 C.F.R. Part "404, Subpart P, Ap-

pendix 2, are reproduced in Appendix F, infra, 34a-

75a.

STATEMENT

1. Titles II and XVI of the Social Security Act

provide disability benefits to insured individuals who,

because of a physical or mental impairment, are

unable to do their previous work or to “engage

in any * * * kind of substantial gainful work

which exists in the national economy * * *.” 42

U.S.C. 423(d) (2) (A), 1882¢(a) (3) (B). In determin-

ing whether a claimant is disabled, the Act requires

the Secretary of Health and Human Services to con-

sider, in addition to a claimant’s physical or mental

impairment, the vocational factors of age, education,

and work experience. Ibid.

Since the enactment of the disability program in

the 1950’s Congress, and in particular the congres-

sional committees with oversight responsibility for

the social security programs, have sought promulga-

tion of regulations making more specific the criteria

to be used for disability determinations. See Kirk v.

Secretary of Health and Human Services, 667 F.2d

524, 527 (6th Cir. 1981); Santise v. Schweiker,

Nos. 81-1904 et al. (8d Cir. Apr. 8, 1982), slip op.

24-25 n.24. Before adopting the regulations at issue

here, the Social Security Administration over a period

of years had developed administrative materials to be

used by state agencies in making initial and recon-

sideration determinations on disability. See 43 Fed.

Reg. 55349, 55350-55351 (1978). These materials

were not published as regulations and were not bind-

ing on or generally available to administrative law

judges or the federal courts.

In 1978, after years of study and consultation with

Congress, and after giving interested parties an op-

portunity for comment, the Secretary promulgated

regulations designed to implement the disability pro-

visions of the Act. 43 Fed. Reg. 9284 (1978). These

medical-vocational regulations, which became effec-

tive on February 26, 1979 (id. at 55349) ,? govern the

decisional sequence for disability claims.* Before the

1 There are four levels of administrative consideration for

disability claims. The first two—the initial and reconsidera-

tion determinations—are made for the Social Security Ad-

ministration by state agencies. 42 U.S.C. 421(a). The third

level is a hearing before an administrative law judge in the

Social Security Administration. 42 U.S.C. 405(b). The fourth

level is review by the Appeals Council of the Social Security

Administration. Judicial review of the final administrative

decision is authorized by 42 U.S.C. 405(g). See Califano Vv.

Sanders, 430 U.S. 99, 101-102 (1977).

2 The agency later rewrote the regulations to make them

clearer and easier to use. 45 Fed. Reg. 55566 (1980).

* The Act’s definition of disability is the same for both the

Federal Old-Age, Survivors, and Disability Insurance program

(Title II) and the Supplemental Security Income (“SSI”)

program (Title XVI). Compare Section 223(d) of Title II,

42 U.S.C. 423(d), with Section 1614(a) (3) of Title XVI, 42

guidelines may be consulted, the claimant must dem-

onstrate that he is not currently working. If he is,

the claim will be denied. 20 C.F.R. 404.1520(b).

Second, the claimant must show, on the basis of medi-

cal evidence alone, that his impairment is “severe,”

i.e., that it “significantly limits [his] physical or

mental ability to do basic work activities.” If it does

not, the claim again will be denied. 20 C.F.R.

404.1520(c). Third, if the impairment is as severe

as those listed in Appendix 1 of the regulations,

20 C.F.R. Part 404, Subpart P, the claimant will

receive benefits without regard to his vocational

characteristics. 20 C.F.R. 404.1520(d). Fourth, if the

impairment is less severe than those listed in Appen-

dix 1, the claimant must show that, because of his

impairment, he can no longer perform work he has

done in the past. If he can still do such work, his

claim will be denied. 20 C.F.R. 404.1520(e). If he

cannot do such work, there must be further factual

determinations about each of the variables made rele-

vant by the Act and the regulations: the claimant’s

“residual functional capacity” (7.e., the level of work

he can perform, based upon medical evidence, despite

his impairment), age, education, and prior work

experience. 42 U.S.C. 423(d)(2)(A); 20 C.F.R.

404.1545, 404.1560 to 404.1568. With regard to each

of these factors, the claimant may introduce evidence

and rebut the case made by the Secretary. 20 C.F.R.

Part 404, Subpart P, Appendix 2, Section 200.00(a).

U.S.C. 1882c(a) (3). The medical-vocational regulations apply

to disability determinations under both programs; 20 C.F.R.

Part 404, Subpart P, governs Title II claims; 20 C.F.R. Part

416, Subpart I, which is virtually identical to Subpart P,

applies to SSI claims. Respondent claimed benefits only under

Title II.

It is only after this detailed inquiry into a claim-

ant’s medical and vocational characteristics that the

guidelines come into play. The tables set out in

Appendix 2 of the regulations are consulted to deter-

mine one question: whether there exist jobs in the

national economy that can be performed by a person

of the claimant’s residual functional capacity, age,

education, and prior work experience. The tables do

not purport to answer that question for all claimants

who have reached the last stage in the decisional

sequence. For example, the tables consider only a

claimant’s strength in their division according to

“residual functional capacity.” Thus, for one whose

impairment results from mental or sensory limita-

tions, a more individualized determination of avail-

able work must be made. 20 C.F.R. Part 404, Sub-

part P, Appendix 2, Section 200.00(e).

For those cases in which use of the tables is ap-

propriate, the Secretary has taken administrative

notice of jobs that are available in the national econ-

omy. For example, underlying the table for sedentary

work—the most restricted category encompassed by

the tables—are approximately 200 unskilled occupa-

tions, each representing numerous jobs, that can be

performed by claimants with the exertional capacity

for a full range of sedentary work. 20 C.F.R. Part

404, Subpart P, Appendix 2, Section 201.00(a). See

also Sections 202.00(a) (1600 occupations for those

able to do light work) ; 203.00(a) (2500 occupations

for those able to do medium work). The weight given

to the combinations of age, education, and work expe-

rience in each table is based on further administrative

notice of the significance of those factors for the

claimant’s ability to adapt to new work situations.

43 Fed. Reg. 55353-55355 (1978). The sources of .

data on the numbers of unskilled jobs and the voca-

tional significance of age, education, and work expe-

rience are set forth in the preamble to the regula-

tions, 43 Fed. Reg. 55352-55355 (1978), and in the

text of the regulations, 20 C.F.R. 404.1566(d) (job

data); Appendix 2, Section 200.00(b) (job data).*

The regulations are accompanied by a detailed textual

statement that explains and justifies each of the

medical-vocational rules (App. F, infra, 52a-75a).

*For example, the determinations about unskilled jobs at

various levels are “supported by the ‘Dictionary of Occupa-

tional Titles’ and the ‘Occupational Outlook Handbook,’ pub-

lished by the Department of Labor; the ‘County Business Pat-

terns’ and ‘Census Surveys’ published by the Bureau of the

Census; and occupational surveys of light and sedentary jobs

prepared for the Social Security Administration by various

State employment agencies.” 20 C.F.R. Part 404, Subpart P,

Appendix 2, Section 200.00(b).

Similar sources bolster the Secretary’s recognition of the

effect that the several vocational characteristics have on

the ability to adapt to work other than past work. Con-

cerning the effect of education the regulations rely, in

addition to the sources listed above and to statistics com-

piled by the Department, on such materials as “The Long

Term Unemployed, Educational Attainment (October 1964)

published by the Manpower Administration of the Department

of Labor in cooperation with the Oklahoma Employment

Security Commissioner (pages vi and 18); Monthly Labor

Review of January 1974, an article entitled ‘Educational

Attainment of Workers, March 1973’ (pages 58-81); Auto-

mation Manpower Services Program Report by the New

Jersey State Employment Service entitled ‘The “Mack”

Worker, The Impact of His Job Loss 2% Years Later’ (De-

cember 1965) (pages 14 and 15); A Survey of the Employ-

ment of Older Workers (1965) by the State of California

Department of Employment and Citizens’ Advisory Com-

mittee on Aging; The Impact of Technological Change in the

Meatpacking Industry, published by the Division of Employ-

ment, Department of Labor, in March 1966 (page 16).” 43

Fed. Reg. 55354 (1978).

This method of determining whether “substantial

gainful work * * * exists in the national economy,”

42 U.S.C. 423(d) (2) (A), is essentially nothing more

than a perfection of the procedure that was employed

before the guidelines were adopted. In most pre-

regulation cases that issue was determined through

the use of testimony by vocational experts knowledge-

able about the existence and requirements of jobs in

the national economy. See Hephner v. Mathews, 574

F.2d 359, 362-363 (6th Cir. 1978).° Such experts

would rely, as a basis for their information, on the

kinds of sources that are the foundation for the

guidelines in Appendix 2. The tables simply afford

the added benefit of the knowledge the agency has

gathered in more than two decades of administering

the disability provisions of the Act, and most im-

portantly, assure consistent determinations across the

multitude of cases.

2. Respondent filed a claim for disability benefits

in October 1979, alleging disability due to a back

problem and high blood pressure (App. A, infra, 2a).

Her claim was denied initially, and upon reconsidera-

tion (ibid.). On September 26, 1980, an administra-

tive law judge concluded after a hearing that respond-

ent was not disabled. He found that while respondent

was unable to perform her past work, she retained

the residual functional capacity for light work (App.

D, infra, 22a-27a). The ALJ found that respond-

ent was then 52 years old, “closely approaching ad-

5 The Secretary was, however, permitted to base a deter-

mination of nondisability on administrative notice where it

was established that a claimant could do a full range of work

at some particular exertional ievel and that his vocational

characteristics were not particularly adverse. See, e.g., Parker

v. Harris, 626 F.2d 225, 233 (2d Cir. 1980) ; White v. Harris,

605 F.2d 867, 868-869 (5th Cir, 1979).

vanced age,” had a marginal education but was able

to communicate in English, and had unskilled work

experience (id. at 28a-29a). On the basis of these

findings, the ALJ applied Rule 202.10 in Table 2 of

Appendix 2, which directed a conclusion that respond-

ent was not disabled (see App. F, infra, 69a). The

decision of nondisability in respondent’s case was

based on administrative notice that there are some

1,600 unskilled occupations that can be performed by

persons with the exertional capacity for a full range

of light work, and on administrative notice of expert

sources on the vocational significance of respondent’s

age, education, and work experience (id. at 65a-67a).

In December 1980, the Social Security Administra-

tion Appeals Council adopted the decision of the ad-

ministrative law judge (App. C, infra, 16a-19a). Re-

spondent then sought judicial review in the United

States District Court for the Eastern District of

New York. On April 29, 1981, the district court con-

cluded that there was substantial evidence to support

the Secretary’s decision and dismissed the complaint

(App. B, infra, 15a).

3. The court of appeals remanded to the Secre-

tary for further evidentiary proceedings (App. A,

infra, la-lla). The court agreed that there was sub-

stantial evidence in the administrative record to sup-

port the finding that respondent had the residual

functional capacity to perform a wide range of light

work (id. at 7a). It also did not dispute the appro-

priate classification of respondent’s age, education,

and work experience. The court nevertheless held

that the Secretary, in determining whether there was

“work * * * in the national economy” (see 42 U.S.C.

423(d)(2)(A)) that respondent could perform, was

not entitled to take administrative notice of the jobs

on which the tables in Appendix 2 are predicated.

Rather, the court held, the Secretary must “ ‘identify

specific alternative occupations available in the na-

tional economy that would be suitable for the claim-

ant’ ” and give for each “ ‘ “a job description clarify-

ing the nature of the job, [and] demonstrating that

the job does not require” exertion or skills not pos-

sessed by the claimant.’” (App. A, infra, 9a, quot-

ing Decker v. Harris, 647 F.2d 291, 298 (2d Cir.

1981)). Without such specificity, the court believed,

“the claimant is deprived of any real chance to pre-

sent evidence showing that she cannot in fact per-

form the types of jobs that are administratively no-

ticed by the guidelines” (App. A, infra, 10a).°

REASONS FOR GRANTING THE PETITION

This case involves a question of substantial impor-

tance for the operation of the Social Security Ad-

ministration’s disability programs. The medical-

vocational regulations set forth criteria intended to

ensure rationality and consistency in the adjudica-

tion of hundreds of thousands of claims for disability

benefits each year. By invalidating these regulations

* The court did not explain why notice of specific occupa-

tional possibilities should be required if the guidelines, which

render superfluous a hearing on that question, are valid. It

can only be presumed that the court found the guidelines in

some way to have exceeded the Secretary’s authority to en-

force the Act by promulgating regulations. But see 42 U.S.C.

405(a). In any event, the effect of the court’s decision is to

preclude the use of the textual and tabular guidelines in 20

C.F.R. Part 404, Subpart P, Appendix 2, in all stages of the

disability decisionmaking process. And since the regulations

in Subpart P, 404.1501 to 404.1598, are in many ways keyed to

the ultimate determination made in Appendix 2, they too are

pro tanto invalid. This is particularly true of 20 C.F.R.

404.1560 to 404.1569.

and instead requiring individualized proof in each

case about the existence of jobs open to the claimant

in the national economy, the court of appeals has re-

quired the replication on an enormous scale of a

task already adequately performed at the rulemaking

stage. This decision ignores the Secretary’s broad

statutory authority to adopt rules and regulations

“necessary or appropriate to carry out” the provi-

sions of the Act (42 U.S.C. 405(a)) and conflicts

with the decision of every other court of appeals that

has considered the issue. Review by this Court is

plainly warranted.

1. The disability hearing system managed by the

Department of Health and Human Services pursuant

to the Social Security Act is “probably the largest

adjudicative agency in the western world.” Santise

v. Schweiker, supra, slip op. 12, quoting J. Mashaw

et al., Social Security Hearings and Appeals: A

Study of the Social Security Administration Hearing

System xi (1978). Approximately 2.4 million claims

for Title II disability insurance benefits and Title

XVI disability benefits were filed by workers in fiscal

year 1980. Department of Health and Human Serv-

ices, Social Security Annual Report to the Con-

gress for Fiscal Year 1980, at 23, 25 (1981). More

than a quarter of a million claimants in fiscal year

1980 pursued their claims to the point of requesting

a hearing before an administrative law judge. Id. at

28. In turn, nearly 8000 claimants found not dis-

abled by the Secretary filed suit in federal court seek-

ing review of the adverse administrative decision.

Id. at 30. With respect to a large number of those

claims, the ultimate question was whether the claim-

ant, considering his impairment, age, education, and

work experience, should be considered disabled be-

cause he could not perform “substantial gainful work

which exists in the national economy.” 42 U.S.C.

423(d)(2)(A). The decision ‘n this case renders

useless the guidelines for making that determination

which the Secretary adopted in 1979, after long and

elaborate preparation.’

2.a. The Social Security Act does not compel these

unpalatable consequences. The court of appeals’ deci-

sion in this case ignores the broad statutory grant

of authority to the Secretary to adopt the guidelines

in Appendix 2. Section 205(a) of the Act, 42 U.S.C.

405 (a), states:

The Secretary shall have full power and au-

thority to make rules and regulations and to

establish procedures, not inconsistent with the

provisions of this subchapter, which are neces-

sary or appropriate to carry out such provisions,

and shall adopt reasonable and proper rules and

regulations to regulate and provide for the na-

ture and extent of the proofs and evidence and

the method of taking and furnishing the same in

order to establish the right to benefits [under

Title IT].

See also 42 U.S.C. 423(d)(5). This Court has re-

cently reaffirmed that regulations adopted by the

Secretary pursuant to an express delegation of sub-

stantive authority are entitled to “legislative effect”

and must be upheld unless they are arbitrary or

7 The reqnirement that the Secretary prove the availability

of work through the testimony of vocational experts or similiar

means would entail particular hardships for the disability

hearing system in the Second Circuit, because that court has

imposed limits on the time within which hearings must be

held and determinations made in Title II and Title XVI cases.

Sharpe V. Harris, 621 F.2d 530 (2d Cir. 1980); Barnett v.

Califano, 580 F.2d 28 (2d Cir. 1978) ; White v. Mathews, 559

F.2d 852 (2d Cir. 1977), cert. denied, 435 U.S. 908 (1978).

capricious. Schweiker v. Gray Panthers, No. 80-756

(June 25, 1981), slip op. 9; see also Batterton v.

Francis, 482 U.S. 416, 425-426 (1977).

The medical-vocational regulations plainly satisfy

that test. They require a specific, individualized fac-

tual determination of each one of the particular char-

acteristics that the Act makes relevant to a claim-

ant’s ability to engage in substantial gainful work:

the nature of his impairment and his residual func-

tional capacity, his age, his education, and his prior

work experience. The only issue on which the regu-

lations do not require individualized proof in every

case is the nature of the job market itself. That is

a matter that is more apt for decision by rulemaking

rather than by adjudication—whether jobs exist in

the national economy for those classes of people

whose medical and vocational characteristics match

one of the descriptions in the tables. Such a set

of rules unquestionably regulates “the nature and

extent of the proofs and evidence” in disability cases,

and is both “necessary [and] appropriate to carry

out [the disability] provisions.” See Cummins v.

Schweiker, 670 F.2d 81, 88 (7th Cir. 1982); Kirk

v. Secretary of Health and Human Services, supra,

667 F.2d at 530.

Part of the impetus behind promulgation of the

regulations and the accompanying guidelines was

the widely recognized tendency of the disability proc-

ess to reach inconsistent results in similar cases.

Santise v. Schweiker, swpra, slip op. 12-14. In 1976,

for example, the Comptroller General reported that

a study of ten state agencies showed complete agree-

ment on the proper disposition of only 22% of a

test group of disability claims. Comptroller General

of the United States, The Social Security Administra-

tion Should Provide More Management and Leader-

ship In Determining Who Is Eligible For Disability

Benefits 6-10 (1976). The apparent arbitrariness of

such an adjudicatory system resulted in part from

the occasional failure to consider all the vocational

factors Congress considered relevant, in part from

the assignment of inconsistent weight to those fac-

tors, and in part from the necessarily ad hoc judg-

ments made by agencies and administrative law

judges, “based on the testimony of vocational ex-

perts * * * and on their own limited and variable

knowledge of the labor market,” about what kinds

of jobs exist. Cummins v. Schweiker, supra, 670

F.2d at 83. The medical-vocational regulations and

the guidelines in Appendix 2 respond to those con-

cerns by focusing the attention of the factfinder

on all of the relevant vocational criteria, by con-

sidering the weight those factors are given in the

labor market, and by taking administrative notice—

after thorough investigation and the opportunity for

public comment—of the occupations available in the

national economy. The result is that “the claims of

all individuals similarly situated are handled in a fair

and consistent manner” and that “determinations

made by one set of adjudicators on the basis of the

same facts will be handled the same way by another

group of adjudicators, wherever in the country they

are located.” 43 Fed. Reg. 55362 (1978).

b. The court of appeals stated its opposition to the

medical-vocational regulations in these terms (App.

A, infra, 10a):

[O]Jur major concern is that the claimant be

given adequate notice of the nature and demands

of the types of jobs allegedly available. Absent

sufficient notice, the claimant is deprived of any

real chance to present evidence showing that she

cannot in fact perform the types of jobs that

are administratively noticed by the guidelines.

The court’s perception was quite accurate: the very

purpose of the guidelines is to make a conclusive

determination “of the availability of jobs * * * for

claimants whose abilities are accurately described by

the grid.” Kirk v. Secretary of Health and Human

Services, supra, 667 F 2d at 531. But the court

offered no reason why the achievement of that pur-

pose should render the guidelines invalid.

It is important, in the first place, to make clear

the limited nature of the determination embodied in

the tables. They are consulted only after the decision-

maker has considered, and the claimant has had a

chance tg rebut, all relevant evidence bearing on the

claimant’s physical and mental impairments, prior

work experience, education, and age, and only after

it has been determined that the claimant’s medical

and vocational characteristics are accurately described

by some category in the tables. The regulations spe-

cifically dictate that “a conclusion of disabled or not

disabled is not directed” if a claimant’s vocational

profile is not precisely contained in Appendix 2. 20

C.F.R. 404.1569 and Appendix 2, Section 200.00(d).

For example, if the claimant has an impairment un-

related to physical strength, the tables cannot be

used to deny benefits. 20 C.F.R. Part 404, Subpart P,

Appendix 2, Section 200.00(e). Similarly, if his im-

pairment is exertional, but falls between the ranges

indicated in the tables, the rules only offer guidance,

not a fixed result. Section 200.00(e).* Moreover, the

® Appendix 2, Section 201.00(h) gives the following ex-

ample:

Example 1: An individual under age 45 with a high

school education can no longer do past work and is re-

stricted to unskilled sedentary jobs because of a severe

medically determinable cardiovascular impairment (which

does not meet or equal the listings in Appendix 1). A

regulations expressly state that age categories will

not be applied “mechanically in a borderline situa-

tion.” 20 C.F.R. 404.1563 (a).

It is also important to emphasize that a claimant

does have explicit notice of the relevant requirements

for performing all the unskilled jobs of which the

tables in Appendix 2 take administrative cognizance.

For example, the unskilled jobs involving light work

(Table 2)—the category of work the court of ap-

peals acknowledged respondent could perform—are

described in the regulations as follows:

Light work involves lifting no more than 20

pounds at a time with frequent lifting or carry-

ing of objects weighing up to 10 pounds. Even

though the weight lifted may be very little, a

job is in this category when it requires a good

deal of walking or standing, or when it involves

sitting most of the time with some pushing and

pulling of arm or leg controls. To be considered

capable of performing a full or wide range of

light work, you must have the ability to do sub-

stantially all of these activities. If someone can

do light work, we determine that he or she can

also do sedentary work, unless there are addi-

tional limiting factors such as loss of fine dex-

terity or inability to sit for long periods of time.

20 C.F.R. 404.1567(b).

permanent injury of the right hand limits the individual

to sedentary jobs which do not require bilateral manual

dexterity. None of the rules in Appendix 2 are applicable

to this particular set of facts, because this individual can-

not perform the full range of work defined as sedentary.

Since the inability to perform jobs requiring bilateral

manual dexterity significantly compromises the only range

of work for which the individual is otherwise qualified

(i.e., sedentary), a finding of disabled would be appro-

priate.

Those individuals whose abilities are accurately

described in the tables, however, may not require

the Secretary to repeat in each case the process that

resulted in promulgation of the regulations. Here,

for example, the Secretary found that respondent

had the “residual functional capacity” to perform

“light work,” and the court of appeals upheld that

finding as supported by the record (App. A, infra,

7a). An additional requirement that respondent be

notified about, and be given an opportunity to rebut,

the approximately 1600 specific types of unskilled

“light work” existing in the national economy would

be superfluous. The existence of such jobs has already

been determined after careful study and after public

notice and comment, based on the same data that

“a vocational expert would consult in determining

whether a particular claimant’s abilities matches

[sic] a job’s requirements.” Kirk v. Secretary of

Health and Human Services, supra, 667 F.2d at 530.

Nothing in the Act precludes the Secretary from de-

termining those issues by a general rule, rather than

by case-by-case adjudication.’ See Schweiker v. Gray

Panthers, supra, slip op. 138. As the Seventh Circuit

recently ‘remarked (Cummins v. Schweiker, supra,

670 F.2d at 83):

If the statutory term “disability” described a

historical fact best or only ascertainable on a

case-by-case basis, binding criteria might be a

problem; but it does not; it is a judgment that a

person’s health makes it exceedingly unlikely

that he could find a job even if he looked hard

*The court below did not suggest that the general rule

applicable to respondent’s case is unreasonable or unsupported

by the occupational data consulted during the administrative

process.

for one everywhere in the United States. Such

a judgment, to be well informed, requires a

broad knowledge of the labor market. The De-

partment of Health and Human Services has this

knowledge and can both supplement and draw

upon it in a rulemaking proceeding. It was

entitled to substitute an institutional judgment

for the ad hoc judgments of administrative law

judges based on the testimony of vocational ex-

perts and other witnesses and on their own lim-

ited and variable knowledge of the labor market.

3. The Second Circuit’s decision in this case con-

flicts with decisions of the First, Third, Fourth, Fifth,

Sixth, and Seventh Circuits upholding use of the

guidelines in Appendix 2 to determine disability. In

Santizse v. Schweiker, supra, slip op. 29-30 (em-

phasis in original; citation & footnote omitted), the

Third Circuit rejected the precise argument relied on

by the Second Circvit in this case:

As for the “requirement” * * * that the Secre-

tary identify specific jobs capable of being per-

formed by a disability claimant, we stress that

the Social Security Act, by its terms, does not

place such an obligation upon the Department.

Rather, this “judicially imposed standard '[was]

designed to ensure that each claimant’s own par-

ticular characteristics . . . are given full con-

sideration” by an ALJ and a reviewing court.

And we are persuaded that this same objective

can be realized if administrative notice is sub-

stituted for statements that would have been

made by vocational expe * * * [T]t would

appear sufficient, for purposes of the substantial

evidence test, for the Secretary to demonstrate,

to the satisfaction of a reviewing court, that

there exist many jobs capable of being filled by

an individual with the claimant’s characteristics.

In Kirk v. Secretary of Health and Human Services,

supra, 667 F.2d at 530 (emphasis in original), the

Sixth Circuit reached precisely the same conclusion:

The grid has displaced the Secretary’s burden

of demonstrating which particular jobs the

claimant can perform. But, that does not render

the regulations invalid. The grid itself takes

into account the same sources which a vocational

expert would consult in determining whether a

particular claimant’s abilities matches [sic] a

job’s requirements, yet provides greater uni-

formity with fewer administrative costs.

To the same effect are cases in the First, Fourth,

Fifth and Seventh Circuits. Rodriguez v. Secretary

of Health and Human Services, No. 81-1610 (1st

Cir. Apr. 2, 1982); see Geoffroy v. Secretary of

Health and Human Services, 663 F.2d 315, 318-319

(1st Cir. 1981) ; Frady v. Harris, 646 F.2d 143, 144-

145 (4th Cir. 1981); Salinas v. Schweiker, 662

F.2d 345, 347-349 (5th Cir. 1981); Cummins v.

Schweiker, supra, 670 F.2d at 83.

The issue is also under consideration in every other

court of appeals except the District of Columbia Cir-

cuit. McCoy v. Schweiker, appeal pending, Nos. 81-

1629 et al. (8th Cir.) (en banc) ; Stone v. Schweiker,

appeal pending, No. 82-3017 (9th Cir.) ; Blanchette

v. Schweiker, appeal pending, No. 81-2468 (10th

1 In Frady, the Fourth Circuit upheld the use of the tables.

In Hall v. Harris, 658 F.2d 260, 267-268 (4th Cir. 1981),

another panel of the Fourth Circuit questioned their validity

in dictum. In Epsilantis v. Schweiker, No. 80-1600 (Apr. 13,

1982), the court appointed counsel for a pro se claimant,

heard initial argument en banc to resolve the tension between

Frady and Hall, and upheld the rule in Frady by an equally

divided court.

Cir.) ;“ Broz v. Schweiker, appeal pending, Nos. 81-

7140 & 81-9558 et al. (11th Cir.).“ Numerous other

cases raising the same question have been stayed in

various circuits pending decision of the lead cases

cited above.

The Second Circuit’s ruling is thus out of step

with the holdings of at least six other courts of ap-

peals on an issue of substantial practical importance.

Regardless of the outcome of pending appeals, the

conflict among the circuits will continue to exist, and

the Secretary will be precluded from utilizing the

medical-vocational regulations, on a nationwide basis,

if the result is to deny disability benefits. This Court

should resolve the conflict.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Rex E. LEE

Solicitor General

J. PAUL McGRATH

Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

JOHN H. GARVEY

Assistant to the Solicitor General

ROBERT S. GREENSPAN

ANNE BUXTON SOBOL

APRIL 1982 Attorneys

11 The Tenth Circuit has already signalled its approval of

the tables in dictum. See Hilton v. Schweiker, No. 81-1139

(10th Cir. Feb. 26, 1982), slip op. 9-10; Chapman Vv.

Schweiker, No. 81-1025 (10th Cir. Feb. 26, 1982), slip op. 9.

42 The Eleventh Circuit, in contrast to the Tenth, has in

dictum expressed “serious doubts” about determinations based

solely on the tables in Appendix 2. See Cowart v. Schweiker,

662 F.2d 731, 736 n.1 (11th Cir. 1981).

~ xtpuadaly

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 154—August Term 1981

(Argued September 28, 1981

Decided Novezaber 30, 1981)

Docket No. 81-6108

CARMEN CAMPBELL, PLAINTIFF-APPELLANT

SECRETARY OF THE DEPARTMENT OF HEALTH AND

HUMAN SERVICES, DEFENDANT-APPELLEE

Filed Nov. 30, 1981

Before:

LUMBARD and VAN GRAAFEILAND, Circuit Judges,

and BoNnsAL, District Judge *

* Of the United States District Court for the Southern

District on New York, sitting by designation.

BONSAL, District Judge:

Carmen Campbell appeals from a final judgment

of the United States District Court for the Eastern

District of New York (Costantino, J.), entered on

April 30, 1981. The District Court granted the mo-

tion of the Secretary of the Department of Health

and Human Services (“Secretary”) for judgment on

the pleadings and affirmed the Secretary’s denial of

insurance benefits to Ms. Campbell. We find that the

record on which the Secretary’s decision rests is in-

adequate in certain critical respects and accordingly

we remand for further proceedings.

BACKGROUND

On October 15, 1979 Carmen Campbell filed an

application for disability insurance benefits with the

Social Security Administration claiming total dis-

ability due to a back condition caused by a herniated

disc and due to hypertension. On December 10, 1979

her application was denied. Ms. Campbell requested

reconsideration which was again denied by notice

dated March 21, 1980. On May 20, 1980 Ms. Camp-

bell requested a de novo review of her application

and on August 22, 1980 a hearing was held before an

Administrative Law Judge (“ALJ”) at which Ms.

Campbell appeared pro se. In a decision dated Sep-

tember 26, 1980 the ALJ found that Ms. Campbell

retained the capacity to do “light work” and that

she was therefore “not disabled” within the meaning

of the Social Security Act.

On October 31, 1980 Ms. Campbell sought review

of the ALJ’s decision by the Appeals Council. She

submitted new medical evidence—a report by her

treating physician, Dr. Lowenthal, which she asserted

warranted a finding of disability by the Appeals

Council. The Appeals Council made the report part

of the record and denied her request for review.

On January 19, 1981 Ms. Campbell filed a pro se

complaint seeking review of denial of benefits in the

United States District Court for the Eastern District

of New York (42 U.S.C. § 405(g) ).

A hearing before the District Court was held on

April 20, 1981 at which Ms. Campbell was repre-

sented by counsel. The district judge stated at the

hearing that he had reviewed the record and sug-

gested that in his opinion the Secretary’s decision

was supported by substantial evidence. The Secre-

tary then moved for summary judgment and by Or-

der dated April 23, 1981 Ms. Campbell’s complaint

was dismissed, from which Order she appeals.

FACTS

Ms. Campbell, aged 51 at the time she filed her

application, was born in Panama where she com-

pleted a sixth grade education. Spanish is her first

language but she has a “fair” knowledge of English.

Ms. Campbell was employed as a hotel maid. Her

duties included making beds, dusting, vacuuming and

pushing “trucks” which carried her equipment. Be-

tween 1971 and 1973 she also worked as a seamstress

in the hotel, and in 1973 she injured her back while

moving a large laundry truck. In 1975 her doctor

informed her that she had a slipped disc. However,

she continued working until December of 1978. In

January of 1979 Ms. Campbell underwent a lamin-

ectomy to remove a herniated disc. She was dis-

charged within two weeks.

The ALJ considered the medical and hospital rec-

ords and the reports of Drs. Khatib and Lowenthal.

Dr. Khatib diagnosed Ms. Campbell’s herniated disc,

performed the operation and saw her during several

follow-up visits. In May of 1979 Dr. Khatib reported

that she could return to work in June so long as she

did not lift heavy objects or do “strenuous work.”

(App. at 98).2 In July Dr. Khatib reported that she

could return to “light duty work” and in November

of 1980 reported that she “is disabled from doing her

regular work and should avoid lifting heavy objects

and strenuous work.” (App. at 99, 127).

Ms. Campbell saw Dr. Lowenthal at the request of

the State of New York Workers’ Compensation Board

from February of 1980 through the spring and sum-

mer. In August of 1980 Dr. Lowenthal filled out a

questionnaire stating that she could continuously

stand for 30 minutes, sit for 30 minutes, and alter-

natively stand or sit at one time for one hour; that

due to severe pain she must lie down during the day

and that she could lift or carry weights of “up to

ten pounds.” (App. at 113-115).

The ALJ considered Ms. Campbell’s age, educa-

tion, past work experience and the medical evidence.

He found that Ms. Campbell was no longer able to

work as a hotel maid but that she could do “light

work.” He concluded that since she could do “light

1This abbreviation refers to “Appellant’s Appendix, Ad-

ministrative Proceedings Below” which was submitted to this

court as part of the record on appeal.

work,” Ms. Campbell was not under a “disability” as

defined by the Act. (42 U.S.C. § 423(d) (1)).

DISCUSSION

Section 423(d) (1) (A) provides that the term “dis-

ability” means:

“inability to engage in any substantial gainful

activity by reason of any medically determinable

physical or mental impairment which can be ex-

pected to result in death or which has lasted or

can be expected to last for a continuous period

of not less than 12 months;... .”

42 U.S.C. § 423(d) (1) (A) (1974).

For the purposes of Section 423(d)(1)(A), the in-

dividual must be

“. . not only unable to do his previous work but

cannot, considering his age, education, and work

experience, engage in any other kind of substan-

tial gainful work which exists in the national

economy, regardless of whether such work exists

in the immediate area in which he lives, or

whether he would be hired if he applied for

WOlE ...."

42 U.S.C. § 423(d) (2) (A) (1974).

The initial burden of proving that a disability

exists rests upon the claimant. 42 U.S.C. § 423(d)

(5) (1977) ; Parker v. Harris, 626 F.2d 225, 221 (2d

Cir. 1980). In this case there is no dispute that this

burden was met because the ALJ made a specific

finding that Ms. Campbell’s condition prevented her

return to her past work.

Thereupon,

“. . the burden shifts to the Secretary, who

must produce evidence to show the existence of

alternative substantial gainful work which exists

in the national economy and which the claimant

could perform, considering not only his physical

capability, but as well his age, his education, his

experience and his training.” Parker v. Harris,

626 F.2d at 231 (citations omitted).

Here the Secretary must show:

“First, . . . that the claimant’s impairment is

of a kind that still permits certain types of ac-

tivity, such as lifting or walking, necessary for

other occupations, and that the claimant’s ex-

perience involves skills transferable to other

work. Second, the Secretary must present evi-

dence showing the existence of specific types of

jobs, available in the national economy, suitable

for a claimant with these capabilities and skills.

See, e.g., Bastien v. Califano, 572 F.2d 908, 912-

13 (2d Cir. 1978).” Decker v. Harris, 647 F.2d

291, 294 (2d Cir. 1981).

In order to promote a more efficient analysis of

relevant factors and to promote consistency in de-

cisions by the Secretary in the adjudication of dis-

ability claims, the Social Security Administration

adopted new regulations which became effective on

February 26, 1979. 20 C.F.R. §§ 404.1501-.1598.

Under the new regulations, once it is determined

that the claimant cannot perform her past work, the

Secretary must show what the claimant’s “residual

functional capacity” is. Here the ALJ found that

Ms. Campbell was capable of performing “light

work.” “Light work” is defined by the regulations

as follows:

“(b) Light work. Light work involves lifting

no more than 20 pounds at a time with fre-

quent lifting or carrying of objects weighing up

to 10 pounds. Even though the weight lifted

may be very little, a job is in this category when

it requires a good deal of walking or standing,

or when it involves sitting most of the time with

some pushing and pulling of arm or leg controls.

To be considered capable of performing a full or

wide range of light work, you must have the

ability to do substantially all of these activities.”

Id. § 404.1567.

The record as a whole supports the ALJ’s finding

that Ms. Campbell had the “residual functional ca-

pacity” to perform “light work.”

Having determined that Ms. Campbell had the

capacity to perform “light work,” the regulations

require the Secretary to show the availability of jobs

in the national economy “suitable for a claimant with

these capabilities and skills.” Decker v. Harris, 647

F.2d at 294. To assist the Secretary in making this

showing, the “medical-vocational guidelines” were

adopted. See 20 C.F.R. Subpart P, Appendix 2. In

Ms. Campbell’s case, the ALJ relied on rule 202.10

of the guidelines which provides that a person who is

“closely approaching advanced age,” with a limited

education, and whose prior work experience is un-

skilled is “not disabled.”* The Secretary contends

that the ALJ is not required to identify specific jobs

because their existence has already been administra-

tively noticed through the adoption of the guide-

lines.*

TABLE NO. 2—RESIOUAL FUNCTIONAL CAPACITY: Maximum SUSTAINED Work CapasiuiTy LiMiTED

TO LIGHT WORK AS A RESULT OF SEVERE MEDICALLY DETERMINABLE ImPAIRMENT(S)

Re Age Educaton Previous wort expenence Decson

202.01 ......... Advanced oge____.| Limited or less... Unekilled or nore... Omebied.

de to Seed of sermsnied—e os Do

not vanstersbie.

20203... a 88 ie Samed of serwpasied—si's “ol Onatnec

202.06 | ane o. High school graduate oF | Unshiied o none... | Daabied

more—does not prowde tor

Gea ony we ied

wok!

202.05... ee scoot =gedvete or | Unaiiied of none ....._......| Not Gaabied

more—provdes tor Grect

entry into shied work *

20008} a High schoo! qedvuate or | Skled or semiskled—shils | Onadies

more—does not prowse for | not

| ony eo aed

202 07 | Sied of enc Not mete os

20206 _......] 1 ener Migh echoot graduate or) Skiied or semishlied—shils Co.

more—provides tor rect! sot

eniry eto salted work *.

202.08... _...| Gosely approaching | Mierste or unable © commy | Uraiiied or none... | Dasbied

atvencet age. recate in Engen

we ond ate © coo

202.11 te uate tiene ‘Shite: oF semianBec sade Oo

ee eae

not wansierabie.

EERE ak - — | *

202.13... | 60 — amend High school graduate or more_| Unekiiied or none ——______. Oe

Peete: Bs. ost vensioatan -

ES Samec or serum ites —euts Co

20216 . | Younger indviduel._| Mierate or unable to comm | Unehlied o nent...) 00.

recate in Engen.

202.17 mn) 0 een nena United or tane—Al least Ber | ...60. Oo.

ote and edie lo commune

cave in Enger

202 18 —@ . Unaes o ess Ons © nso Oo.

cone : ieee wd ——

oe High schoo! graduate or more... Urakitied OF PONP———--—-} Oe.

202 21 | wall Saihed OF sernshted—srts Do.

202 22 le to eunes OF Berek dec shuts Do.

* See 202.004)

8 As the introduction to the guidelines explains:

“(b) the existence of jobs in the national economy is

reflected in the “Decisions” shown in the rules; i.e., in

promulgating the rules, administrative notice has been

taken of the numbers of unskilled jobs that exist through-

out the national economy at the various functional levels

Before and after the adoption of the guidelines this

circuit has consistently required that “the Secretary

identify specific alternative occupations available in

the national economy that would be suitable for the

claimant” and that “these jobs be supported by ‘a

job description clarifying the nature of the job, [and]

demonstrating that the job does not require’ exertion

or skills not possessed by the claimant. Bastien v.

Califano, supra, 572 F.2d at 912-13.” Decker v.

Harris, 647 F.2d at 298. See also Parker v. Harris,

626 F.2d at 233-34. In the past, this has been done

largely through the use of vocational testimony to

establish that there are specific jobs suitable to the

claimant’s capabilities.

The central issue in this case is whether the guide-

lines provide adequate evidence of a claimant’s ability

to perform a specific alternative occupation. This

circuit recently examined the conflict between the

guidelines and prior case law in Decker v. Harris,

supra. While the court did not have to resolve the

conflict in that case because the issue was not

“squarely presented” on the facts, the court did re-

affirm the need for a specific showing of suitable

alternative jobe The court said:

“We believe that the essential concern . . . is

that if the Secretary chooses to proceed without

(sedentary, light, medium, heavy and very heavy) as

supported by the ‘Dictionary of Occupational] Titles’ and

the ‘Occupational Outlook Handbook’, published by the

Department of Labor; the ‘County Business Patterns’

and ‘Census Surveys’ published by the Bureau of Census;

and occupational surveys of light and sedentary jobs pre-

pared for the Social Security Administration by various

State employment agencies.” 20 C.F.R., Subchapter P,

Appendix 2, § 200.00(b).

10a

expert testimony by taking administrative notice,

the Secretary must provide a similar degree of

specificity to achieve the underlying objectives

of procedural fairness to the claimant and pres-

ervation of an adequate record for review. The

key consideration in the administrative proceed-

ing must be that the claimant be given adequate

opportunity to challenge the suitability or avail-

ability of the jobs noticed.” Id. at 298.

Now that the issue is “squarely presented,” our

major concern is that the claimant be given adequate

notice of the nature and demands of the types of jobs

allegedly available. Absent sufficient notice, the claim-

ant is deprived of any real chance to present evi-

dence showing that she cannot in fact perform the

types of jobs that are administratively noticed by

the guidelines. This is particularly true in Ms. Camp-

bell’s case where the ALJ gave no indication of any

specific “light work” jobs that she was capable of

performing but relied on the guidelines which take

notice of approximately 1,600 types of “light work”

jobs available in the national economy. 20 C.F.R.

Subpart P, Appendix 2, § 202.00. If there are so

many types of jobs available, it would not be too

great a burden for the Secretary or the ALJ to

specify a few suitable alternative available types of

jobs so that a claimant is given an opportunity to

show that she is incapable of performing those jobs.

Moreover, we stress that the jobs should be specified

at the hearing so that the claimant has a chance to

put evidence into the record on that issue. In Ms.

Campbell’s case she was not informed of the Secre-

tary’s position and the ALJ’s findings until she re-

ceived his decision, when it was too late for her to

lla

rebut any finding of available “light work” jobs. In

failing to show suitable available alternative jobs for

Ms. Campbell, the Secretary’s finding of “not dis-

abled” is not supported by substantial evidence.

Accordingly, we remand this case to the Secretary

for further proceedings consistent with this opinion,

including a listing of particular types of jobs suit-

able to the capabilities of Ms. Campbell.

12a

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

CV-81-155

CARMEN CAMPBELL, PLAINTIFF

—against—

SECRETARY, HEALTH AND HUMAN SERVICES,

DEFENDANT

Filed Jul. 28, 1981

MEMORANDI'M OF DECISION

ANU ORDER

July 27, 1981

COSTANTINO, D.J.

As set forth in the court’s prior order, the court

after reviewing the record on appeal concludes that

the determination of the Secretary is supported by

substantial evidence. 42 U.S.C. § 405(g). What fol-

lows is the court’s rationale behind this decision.

Plaintiff, Carmen Campbell (“Campbell’’), a 53-

year old female, seeks disability benefits and claims

that she suffers from a herniated disc and hyper-

tension. According to the testimony at the hearing

before the Administrative Law Judge (“ALJ”) and

13a

the evidence presented at that hearing, Campbell

was injured while working as a hotel maid in 1973,

and continued to work with the injury until January

of 1979 when she had a laminectomy to remove a

herniated disc. She alleges, however, that since the

operation, she has suffered continuous pain in her

lower back which she maintains is disabling. There

is no evidence in the record regarding the hyperten-

sion claim.

In a decision dated September 26, 1980, the ALJ

found that Campbell’s injuries do affect her ability

to perform many work-related functions, but they

were not so severe as to meet those impairments set

forth in the Secretary’s “Listings”. In finding that

plaintiff was still able to perform light work, the

ALJ concluded that Campbell was not under a “dis-

ability” as defined by the Social Security Act.

In support of her claim, plaintiff submitted several

medical reports by Dr. Reza Khatib, the treating

physician, and by Dr. Milton Lowenthal. The ALJ

rejected the conclusion of Dr. Lowenthal as contrary

to the objective medical evidence and followed the

statements of Dr. Khatib who noted that the pa-

tient, while injured, could return to light duty work.

As noted, the ALJ ultimately denied the application

for disability benefits since Campbell had the resid-

ual functional capacity for light work.

After the ALJ rendered his decision, plaintiff sub-

mitted a final report by Dr. Khatib dated November

10, 1980 which once again stated that Campbell “is

disabled from doing her regular work and should

avoid lifting heavy objects and doing strenuous

work.” On appeal, plaintiff maintained that the

letter clearly established her “disability,” but the

Appeals Council disagreed holding that this most

recent medical opinion was consistent with Dr. Kha-

l4a

tib’s prior reports which advised that while Campbell

was disabled from performing her prior work, she

could still perform light duty. It would appear that

this conclusion is sound.

It is well established in the law that “[i]t is not

the function of a reviewing court to determine de

novo whether the claimant is disabled, but to decide

whether the Secretary’s decision is supported by sub-

stantial evidence.” Dousewicz v. Harris, slip op. 2397,

2400 (2d Cir. April 8, 1981). With this in mind,

the court will now review the evidence in the record.

In his written opinion, the ALJ clearly explains that

he focused on the plaintiff’s allegations of pain. This

court concludes that the ALJ properly weighed that

evidence as required by the law. See Vega v. Harris,

636 F.2d 900 (2d Cir. 1981); McLaughlin v. Secre-

tary, 612 F.2d 701 (2d Cir. 1980); Marcus vy.

Califano, 615 F.2d 23 (2d Cir. 1979). Moreover,

since there was no substantial contradictory evidence,

the ALJ, bound by Dr. Khatib’s opinion regarding

the extent both of the injuries and the plaintiff’s

ability to engage in certain activity, properly con-

cluded that the plaintiff was not disabled as she was

able to perform light work. See Jock v. Harris, slip

op. 3589 (2d Cir. June 5, 1981); Parker v. Harris,

626 F.2d 225 (2d Cir. 1980).

Accordingly, since the findings of the ALJ and the

Appeals Council are supported by substantial evi-

dence, the decision is affirmed.

So Ordered.

/s/ Mark A. Constantino

United States District Judge

l5a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

81 C 155

CARMEN CAMPBELL

—vV.—

SECRETARY, HEALTH AND HUMAN SERVICES

[Filed Apr. 29, 1981]

ORDER

After reviewing the record on appeal, the court

finds that the determination of the Secretary is sup-

ported by substantial evidence. Accordingly, the peti-

tion is dismisse’ A more detailed explanation will

be forthcoming.

So ordered.

/s/ Mark A. Costantino

United States District Judge

April 28, 1981

16a

APPENDIX C

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

SocIAL SECURITY ADMINISTRATION

P.O. Box 2518

Washington, D.C. 20013

SCC OFFICE OF

REFER TO: 093-40-3689 HEARINGS AND APPEALS

December 31, 1980

ACTION OF APPEALS COUNCIL

ON REQUEST FOR REVIEW

Ms. Carmen Campbell

79 Lorraine Street, Apt. B

Brooklyn, New York 11232

Dear Ms. Campbell:

After the request for review of the hearing decision

was received, a careful study was made of your case,

the applicable law and regulations, the record before

the administrative law judge, the additional evidence

submitted, and the contentions made in support of

the request.

Section 404.970 of Social Security Administration

Regulations No. 4 (20 CFR 404.970) provides that

the Appeals Council will review a hearing decision

where: (1) there appears to be an abuse of discre-

17a

tion by the administrative law judge; (2) there is

an error of law; (3) the administrative law judge’s

action, findings, or conclusions are not supported by

substantial evidence, or (4) there is a broad policy

or procedural issue which may affect the general pub-

lic interest. This section also provides that where

new and material evidence is submitted with the re-

quest for review, the entire record will be evaluated

and review will be granted where the Appeals Coun-

cil finds that the administrative law judge’s action,

findings, or conclusion is contrary to the weight of

the evidence currently of record.

The Appeals Council has concluded that there is no

basis under the above regulations for granting your

request for review. Accordingly, the hearing decision

stands as the final decision of the Secretary in your

case.

In reaching this conclusion, the Appeals Council con-

sidered the contentions set forth in your attorney’s

letter of November 13, 1980, and Dr. Reza Khatib’s

November 10, 1980 report that was submitted with

Mr. Nazario’s letter. When you filed your applica-

tion on October 15, 1979, you alleged an inability to

work as of December 1978. Dr. Khatib’s report of

May 14, 1979, states that you could return to work

in early June if you avoided lifting heavy objects or

strenuous work. The doctor considered your return

to work important to your recovery. At the time of

your office visit to Dr. Khatab on July 2, 1979, he

was still of the opinion that you could return to light

work. In his September 27, 1979 report, Dr. Khatib

again stated that you should return to work with

the same restrictions. When seen by your physician

18a

on January 14, 1980, he was, again, of the opinion

that you could have returned to light work. Dr.

Khatib’s November 10, 1980 report states you are

disabled from doing your regular work and should

avoid lifting heavy objects and strenuous work. This

opinion would seem to be consistent with his previous

reports in which he stated that you had the residual

functional capacity to perform light work. The Dic-

tionary of Occupational Titles describes your job as

a hotel maid as light work, and in the Appeals Coun-

cil’s opinion, the weight of the evidence now of record

does not demonstrate that you were precluded from

light work activity for any consecutive 12 month

period pertinent to your case. Thus, the recent in-

formation from Dr. Khatib has no material bearing

on the decision in the Council’s view, and would not

change the administrative law judge’s findings in

your case.

If you desire a court review of the hearing decision,

you may commence a civil action in the district court

of the United States in the judicial district in which

you reside within sixty (60) days from the date of

receipt of this letter. It wil! be presumed that this

letter is received within five (5) days after the date

shown above unless a reasonable showing is other-

wise made. See section 2°%‘9) of the Social Security

Act, as amended (42 U.9.U. 405(g)) and section

422.210 of Social Security Administration Regula-

tions No. 22 (20 CFR 422.210).

If a civil action is commenced, the Bill of Complaint

should name the Secretary of Health and Human

Services as the defendant and should include the so-

19a

cial security number(s) shown at the top of this

notice.

Sincerely yours,

/s/ David G. Danziger

Davip G. DANZIGER

Member, Appeals Council

ce:

Mr. Rubin Nazario

Attorney at Law

Brooklyn, New York 11021

DBS, Baltimore, MD

DO, Boro Hall, Brooklyn, NY

HO, Greensboro, NC (ALJ Denning)

Form HA-518-U9 (11-78)

(Formerly HA-518)

SGC :de 12/19/80

20a

APPENDIX D

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

DECISION

IN THE CASE OF CARMEN CAMPBELL

Claim for Period of Disability and

Disability Insurance Benefits—093-40-3689

This case is before the Administrative Law Judge on

a Request for Hearing. Pursuant to said request and

after due notice, a hearing was held on August 22,

1980, in New York, New York. Claimant personally

appeared and testified. Although advised of the right

to counsel, claimant proceeded without the assistance

of a representative or attorney.

ISSUES

The general issues before the Administrative Law

Judge are whether the claimant is entitled to a period

of disability and to disability insurance benefits un-

der Sections 216(i) and 223, respectively, of the So-

cial Security Act, as amended. The specific issues

are whether the claimant was under a “disability,”

as defined in the Act and, if so, when such “dis-

ability” zsommenced and the duration thereof; and

whether the special earnings requirements of the Act

are met for the purpose of entitlement.

LAW AND REGULATIONS

Section 216(i) cf the Social Security Act provides

for the establishment of a period of disability, and

2la

Section 223 of the Act provides for the payment of

disability insurance benefits where the requirements

specified therein are met.

Section 223(d)(1) of the Social Security Act defines

disability as the “inability to engage in any substan-

tial gainful activity by reason of any medically de-

terminable physical or mental impairment which can

be expected to result in death or which has lasted or

can be expected to last for a continuous period of

not less than 12 months.”

Section 223(d)(2)(A) further provides that an in-

dividual shall be determined to be under a disability

only if his physical or mental impairment or im-

pairments are “of such severity that he is not only

unable to do his previous work but cannot, consider-

ing his age, education, and work experience, engage

in any kind of substantial gainful work which exists

in the national economy.”

Section 223(d)(3) defines a “physical or mental im-

pairment” as an impairment that results from “ana-

tomical, physiological, or psychological abnormalities

which are demonstrable by medically acceptable clini-

cal and laboratory diagnostic techniques.”

On November 28, 1978, there were published in the

Federal Register (43 FR 55349) amendments to So-

cial Security Administration Regulation No. 4, Sub-

part P. These amendments became effective on Feb-

ruary 26, 1979.

As revised, Regulation 404.1503 ff. provides, in ef-

fect, that in cases where claimants with a severe

impairment or impairments are not actually engaging

in substantial gainful activity, they may be found

disabled if their impairment or combination of im-

22a

pairments meets the duration requirements and is

listed in Appendix 1, Subpart P, Regulation No. 4,

or is determined to be medically the equivalent of a

listed Impairment.

Regulation 404.1513 discusses “Appendix 2,” which

sets forth rules reflecting the major functional and

vocational patterns which are encountered in cases in

which claimant[s] (1) are not actually engaging in

substantial gainful activity, (2) do not qualify on

medical considerations alone, and (3) are prevented

by a medically determinable impairment from re-

turning to their “vocationally relevant” past work.

These regulations further provide, in effect, that when

the findings of fact made as to all factors (age, edu-

cation, transferability of skills, work experience, and

maximum level of sustained work capability) coin-

cide with the criteria of a rule, that rule directs a

conclusion as to whether the claimant is “disabled”

or “not disabled.”

EVIDENCE CONSIDERED

The Administrative Law Judge has carefully consid-

ered all the testimony at the hearing, the arguments

made, and the documents described in the List of

Exhibits attached to this decision.

EVALUATION OF EVIDENCE

Essentially, the claimant alleges disability due to a

back condition with a herniated disc. At ‘% hearing,

she testified that she had worked with a siipped disc

‘for a number of years and had surgery in January

of 1979. She testified that her left side is “prac-

tically numb” and that she receives therapy three

times a week. She added that she also has high blood

23a

pressure. Claimant is 5 feet, 6 inches tall and pres-

ently weighs 185 pounds, and she indicated that her

normal weight is between 200-210 pounds. Claimant

has been on a diet and she described her appetite as

being good.

The medical evidence of record would establish that

the claimant was hospitalized in January of 1979

and underwent a laminectomy for removal of a herni-

ated disc. When seen in followup by Dr. Khatib on

February 5, 1979, claimant was noted to have only

mild limitation of lower back movements and no

weakness. His only recommendation was that the

claimant lose weight. (Exhibit 16) Similar findings

were made by Dr. Khatib in followup visits, and

when seen on July 5, 1979, the claimant’s neurologi-

cal examination was noted to be within normal limits

and it was concluded that the claimant could return

to light-duty work (Exhibits 17, 18, and 19) Again,

on September 27, 1979, Dr. Khatib indicated that the

claimant’s neurological examination was within nor-

mal limits and that she should return to work, avoid-

ing heavy lifting and strenuous exertion. (Exhibit

21) On October 24, 1979, Dr. Khatib noted upon

neurological examination that there was a limitation

of lower back movement with restricted straight leg

raising but no weakness and no reflex changes.

(Exhibit 22)

At the time of the hearing, the claimant produced

several reports from Dr. Milton Lowenthal. Dr.

Lowenthal indicated that he had first seen the claim-

ant on February 19, 1980. At that time he noted

that there was slight guarding of movements and

moderate to marked tenderness over the lower lum-

bar spine. He noted no atrophy or shortening of the

lower extremities, and range of motion and motor

24a

power at the hips, knees, and ankles were normal.

Straight leg raising was negative in the seated posi-

tion and was resisted at 60 degrees on the right and

40 degrees on the left. Knee and ankle jerks were ac-

tive and equal, sensation was normal, and plantar

responses were flexor. Dr. Lowenthal noted at that

time that the claimant’s symptoms were mainly a re-

sult of prolonged guarding and disuse and that she

should undergo theraphy directed at increasing tol-

erance for physical activity. (Exhibit 31) A similar

report was made by Dr. Lowenthal on June 5, 1980.

(Exhibit 28) However, in assessing the claimant’s

residual functional capacity as of August 14, 1980,

Dr. Lowenthal opined that the claimant would be

able to alternately sit or stand for only up to one

hour or continuously sit or stand 30 minutes and

that she would be limited to lifting and carrying up

to 10 pounds. (Exhibit 29) Further, in a form dated

August 14, 1980, Dr. Lowenthal checked that the

claimant had a nerve root compression syndrome with

pain and motion limitation in the back or neck and

cervical or lumbar nerve root compression as evi-

denced by radicular distribution of sensory, motor,

and reflex abnormalities. (Exhibit 32)

_ Based upon the preponderance of the objective medi-

cal evidence, we would concur with the assessment of

Dr. Khatib that the claimant is capable of perform-

ing work activity of a light character. We find no

basis to support the most recent statements of Dr.

Lowenthal, and we find his residual functional capac-

ity statement not to be in line with the objective

findings and contrary to the statement of Dr. Khatib,

the physician who treated the claimant. Further, we

find it to be inconsistent with Dr. Lowenthal’s own

statements that the claimant’s primary problem was

25a

disuse, limiting tolerance for physical activity. While

the claimant should not engage in any heavy lifting

or strenuous exertional activity, it is felt that the

claimant remains capable of performing light work.

“Sedentary work,” as defined at Section 404.1510

and, as appropriate, at Section 416.910, places pri-

mary emphasis on the capacity to sit with some

walking or standing and the adjunctive ability to

lift and utilize objects of minimal weight. “Light

work,” as defined at Section 404.1510(c) and, as ap-

propriate, Section 416.910(c) entails much the same

capacity as sedentary work with the lifting of negli-

gible weights, but may require a significant degree

of walking or standing or push/pull maneuvers from

a seated position. The functional implications of

claimant’s impairments, based upon medical data,

have been previously described. Again, it is con-

cluded that on such basis, the claimant retains suffi-

cient residual functional capacity for light work.

In arriving at this decision, the Administrative Law

Judge has given careful consideration to the claim-

ant’s allegations of pain and numbness. We find

these not to be supported by the objective medical

evidence. Because pain cannot be scientifically

measured, the claimant’s allegations and complaints

relative thereto must be considered along with the

diagnostic clinical data in determining whether dis-

ability exists. Each individual’s tolerance for pain

varies. This factor must also be considered in deter-

mining whether a claimant is disabled. However, the

mere assertion of pain does not prevent a fact finder’s

conclusion based upon more persuasive evidence that

either the asserted pain does not exist or is of such

a degree that it does not foreclose gainful employ-

26a

ment. Also, although it may well be that claimant

has episodes of annoyance because of a particular

condition, that factor alone does not create entitle-

ment to disability benefits where the record other-

wise indicates that the capacity to engage in substan-

tial gainful activity persists. The courts have fre-

quently held that the inability of a claimant to work

without some pain or discomfort does not necessarily

satisfy the test of disability under the Act. Thus,

again, the claimant’s testimony of pain and the

incapacity resulting from pain is only one of the ele-

ments to be considered in reaching a determina-

tion of disability, but such evidence must be evalu-

ated with due consideration for credibility, motiva-

tion, and the medical evidence of impairment.

As stated previously, it is recognized that pain is not

an overt or measurable entity. The extent to which it

exists in such degree that it interferes with sustained

functioning is most difficult to assess. Some guid-

ance in attempting to determine the existence and in-

tensity of pain is secured by reviewing extraneous

factors which tend to be a concomitant of the condi-

tion. For example, in many instances there may be

loss of weight due to loss of appetite from incessant

pain, muscle atrophy due to muscle guarding, severe

and present muscular spasms, pathological neurologi-

cal signs, prolonged bedrest, the use of an assistive

brace or support, or the use of strong pain-killing

medication for a prolonged period of time. In the

instant case, none of the aforementioned factors exist

to a significant degree. Although the aforementioned

factors are not conclusive on the subject of pain, it

would seem that they tend to imply, at most, a mod-

erate level of symptomatology.

27a

Although the claimant has alleged hypertension as a

disabling impairment, this is not documented by the

record. While the claimant may be taking antihyper-

tensive medication, this would appear to be sufficient

to keep the claimant’s blood pressure in good control.

There is no showing of any end-organ damage or

of any functional restrictions imposed thereby.

Although significant, the claimant’s impairments are

not so severe as to meet or equal the severity de-

scribed in the Secretary’s “Listing of Impairments.”

Further, considering the aforementioned limitations,

restrictions and physical capacity, and the character

of the claimant’s past work, we conclude that the

claimant might not be able to return to any of her

relevant past employment. Therefore, it becomes

necessary to determine whether claimant can per-

form any other substantial gainful activity which

exists in the national economy in substantial num-

bers, considering age, education, and past work ex-

perience as classified in the appropriate regulations,

as well as claimant’s residual functional/physical

capacity. Again, it is concluded that the claimant

remains capable of performing work activity of a

light character.

At 52 years of age, the claimant is regulatorily con-

sidered to be a person closely approaching advanced

age. She has completed a marginal education, but

is able to read and speak English. Claimant’s past

work as a domestic has been of an unskilled char-

acter. Considering the claimant’s age, education, and

work background, with her residual functional ca-

pacity, it is concluded that Rule 202.10 of Table 2

to Appendix 2 of Subpart P, Regulation No. 4,

dictates a finding that the claimant is not “disabled.”

28a

FINDINGS

The Administrative Law Judge, having carefully con-

sidered the entire record in this case and based upon

the preponderance of the credil'e evidence, makes the

following specific findings in light of the law and

regulations more fully set forth above:

That claimant met the special earnings re-

quirement of the Act as of her alleged onset

date, and this requirement continues to be met

at least through the date of this decision; that

claimant is not presently participating in sub-

stantial gainful activity;

That the medical evidence establishes that

claimant has impairments of the musculo-

skeletal and cardiovascular systems;

That claimant’s impairments, either singly or

in combination, including the symptomatology

arising therefrom, do affect the ability to per-

form basic work-related functions, but are not

so severe as to attain the severity which either

meets or equals that delineated in the Secre-

tary’s “Listings” ;

That claimant’s past relevant work consisted

of functioning as a domestic;

That claimant is unable to perform work as

described ;

That claimant retains the residual functional

capacity for light work;

That claimant was born on January 15, 1928,

and thus may be considered an individual

closely approaching advanced age;

That claimant’s highest educational attain-

ment is of the marginal level;

29a

9. That the claimant’s past relevant work ac-

tivity was of unskilled character;

10. That, considering her maximum sustained

work capacity, age, education, and work ex-

perience, claimant must be found “not dis-

abled” ; and

11. That claimant was not under a “disability”

as defined in the Social Security Act, as

amended, at any time through the date of this

decision.

DECISION

It is the decision of the Administrative Law Judge

that, based on her application filed October 15, 1979,

the claimant is not entitled to a period of disability

or to Disability Insurance Benefits under Section

216(i) and Section 223, respectively, of the Social

Security Act, as amended.

/s/ Oliver T. Denning

OLIVER T. DENNING

Administrative Law Judge

Date: September 26, 1980

jg/al

30a

APPENDIX E

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Courthouse, in the City of New York,

on the 11th day of February, one thousand nine hun-

dred and eighty-two.

No. 81-6108

CARMEN CAMPBELL, PLAINTIFF

—v—

SECRETARY OF THE DEPARTMENT OF HEALTH

AND HUMAN SERVICES, DEFENDANT-APPELLEE

Filed Feb. 11, 1982

A petition for rehearing containing a suggestion

that the action be reheard in banc having been filed

herein by counsel for the defendant-appellee, Secre-

— of the Department of Health and Human Serv-

Upon consideration by the panel that heard the

appeal, it is

ORDERED that said petition for rehearing is

DENIED.

3la

It is further noted that the suggestion for rehear-

ing in banc has been transmitted to the judges of

the court in regular active service and to any other

judge on the panel that heard the appeal and that

no such judge has requested that a vote be taken

thereon.

/s/ A. Daniel Fusaro

A. DANIEL FUSARO

Clerk

By /s/ Francis X. Gendhart

FRANCIS X. GENDHART

Chief Deputy Clerk

82a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on the

thirtieth day of November, one thousand nine hun-

dred and eighty-one.

Present:

Hon J. EDWARD LUMBARD,

Hon. ELLSWORTH A. VAN GRAAFEILAND,

Circuit Judges

HoN DuDLEY B. BONSAL,

District Judge

No. 81-6108

CARMEN CAMPBELL,

Plaintiff-Appellant,

Vv.

SECRETARY OF THE DEPARTMENT OF HEALTH

AND HUMAN SERVICES,

Defendant-A ppellee.

Appeal from the United States District Court

for the Eastern District of New York

This cause came on to be heard on the transcript of

record from the United States District Court for the

Eastern District of New York, and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that the ap-

33a

peal from a judgment of said District Court be and

it hereby is remanded to said district court for fur-

ther proceedings in accordance with the opinion of

this court.

A. Daniel Fusaro, Clerk

by Arthur Heller, Deputy Clerk

34a

APPENDIX F

STATUTES AND REGULATIONS INVOLVED

1. 42 U.S.C. 405(a) provides:

(a) Rules and regulations; procedures

The Secretary shall have full power and au-

thority to make rules and regulations and to es-

tablish procedures, not inconsistent with the pro-

visions of this subchapter, which are necessary

or appropriate to carry out such provisions, and

shall adopt reasonable and proper rules and reg-

ulations to regulate and provide for the nature

and extent of the proofs and evidence and the

method of taking and furnishing the same in

order to establish the right to benefits here-

under.

2. 42 U.S.C. 423(d) provides:

(d) Disability

(1) The term “disability” means—

(A) inability to engage in any substan-

tial gainful activity by reason of any medi-

cally determinable physical or mental im-

pairment which can be expected to result in

death or which has lasted or can be ex-

pected to last for a continuous period of not

less than 12 months * * *.

(2) For purposes of paragraph (1) (A)—

(A) an individual (except a widow, sur-

viving divorced wife, or widower for pur-

poses of section 402(e) or (f) of this title)

85a

shall be determined to be under a disability

only if his physical or mental impairment

or impairments are of such severity that he

is not only unable to do his previous work

but cannot, considering his age, education,

and work experience, engage in any other

kind of substantial gainful work which

exists in the national economy, regardless

of whether such work exists in the immedi-

ate area in which he lives, or whether a

specific job vacancy exists for him, or

whether he would be hired if he applied for

work. For purposes of the preceding sen-

tence (with respect to any individual),

“work which exists in the national economy”

means work which exists in significant num-

bers either in the region where such individ-

ual lives or in several regions of the country.

5) An individual shall not be considered

to be under a disability unless he furnishes

such medical and other evidence of the ex-

istence thereof as the Secretary may require.

8. 20 C.F.R. 404.1545 provides:

§ 404.1545 Your residual functional capacity.

(a) General. Your impairments may cause

physical and mental limitations that affect what

you can do in a work setting. Your residual

functional capacity is what you can still do

despite your limitations. If you have more than

one impairment, we will consider all of your im-

pairments of which we are aware. We consider

your capacity for various functions as described

86a

in the following paragraphs; (b) physical abili-

ties; (c) mental impairments, and (d) other im-

pairments. Residual functional capacity is a

medical assessment. However, it may include

descriptions (even your own) of limitations that

go beyond the symtoms that are important in

the diagnosis and treatment of your medical

condition. Observations of your work limitations

in addition to those usually made during formal

medical examinations may also be used. These

descriptions and observations, when used, must

be considered along with the rest of your medical

record to enable us to decide to what extent your

impairment keeps you from performing partic-

ular work activities. This assessment of your

remaining capacity for work is not a decision on

whether you are disabled, but is used as the

basis for determining the particular types of

work you may be able to do despite your

impairment. Then, using the guidelines in

$§ 404.1560 through 404.1569, your vocational

background is considered along with your resid-

ual functional capacity in arriving at a dis-

ability decision.

(b) Physical abilities. When we assess your

physical abilities (e.g., strength) we assess the

severity of your impairment(s) and determine

your residual functional capacity for work ac-

tivity on a regular and continuing basis. We

consider your ability to do physical activities

such as walking, standing, lifting, carrying,

pushing, pulling, reaching, handling and the

evaluation of other physical functions. A limited

ability to do these things may reduce yovr ability

to do work.

87a

your impairment because of mental disorders,

we consider factors such as your ability to

understand, to carry out and remember instruc-

tions, and to respond appropriately to super-

vision, co-workers and work pressures in a work

setting.

(d) Other impairments. Some medically de-

terminable impairments, such as skin impair-

ments, epilepsy, and impairments of vision, hear-

ing or other senses, postural and manipulative

limitations, and environmental restrictions do

not limit physical exertion. If you have this type

of impairment, in addition to one that affects

physical exertion, we consider both in deciding

your residual functional capacity.

. 20 C.F.R. 404.1560 to 404.1569 provides:

§ 404.1560 When your vocational background

will be considered.

(a) General. We may consider vocational

factors when you are applying for a period of.

disability, or disability insurance benefits as a

disabled worker, or child insurance benefits

based on disability before age 22.

(b) Disability determinations in which voca-

tional factors must be considered along with

the medical evidence. When we cannot decide

whether you are disabled on medical evidence

alone, we must use other evidence.

(1) We will use information from you about

your age, education and work experience.

(2) We will consider your doctors’ reports

and hospital records as well as your statements

and other evidence to determine your residual

38a

functional capacity and how it affects the work

you can do. Sometimes, to do this, we will need

to ask you to have special examinations or tests.

(See § 404.1517).

(3) If we find that you can no longer do the

work you have done in the past, we will deter-

mine whether you can do other work (jobs)

which exists in significant numbers in the na-

tion’s economy.

§ 40.1561 Your ability to do work depends

upon your residual functional capacity.

If you can do your previous work (your usual

work or other applicable past work), we will

determine that you are not disabled. However,

if your residual functional capacity is not enough

to enable you to do any of your previous work,

we must still decide if you can do any other

work. To do this, we consider your residual

functional capacity, and your age, education,

and work experience. Any work (jobs) that you

can do must exist in significant numbers in the

national economy (either in the region where

you live or in several regions of the country).

Sections 404.1563-404.1565 explain how we eval-

uate your age, education, and work experience

when we are deciding whether or not you are

able to do other work.

§ 404.1562 If you have done only arduous un-

skilled physical labor.

If you have only a marginal education and

work experience of 35 years or more during

which you did arduous unskilled physical labor,

and you are not working and are no longer able

39a

to do this kind of work because of a severe

impairment(s), we will consider you unable to

do lighter work, and therefore, disabled. How-

ever, if you are working or have worked despite

your impairment(s) (except where the work is

sporadic or is not medically advisable), we will

review all the facts in your case, and we may

find that you are not disabled. In addition, we

will consider that you are not disabled if the

evidence shows that you have training or past

work experience which enables you to do sub-

stantial gainful activity in another occupation

with your impairment, either on a full-time or a

reasonably regular part-time basis.

EXAMPLE: B is a 60-year-old miner with a

fourth grade education who has a life-long his-

tory of arduous physical labor. B says that he is

disabled because of arthritis of the spine, hips,

and knees, and other impairments. Medical evi-

dence shows a combination of impairments and

establishes that these impairments prevent B

from performing his usual work or any other

type of arduous physical labor. His vocational

background does not show that he has skills or

capabilities needed to do lighter work which

would be readily transferable to another work

setting. Under these circumstances, we will find

that B is disabled.

§ 404.1563 Your age as a vocational factor.

(a) General. “Age” refers to how old you are

(your chronological age) and the extent to which

your age affects your ability to adapt to a new

work situation and to do work in competition

40a

with others. However, we do not determine dis-

ability on your age alone. We must also con-

sider yuur residual functional capacity, educa-

tion, and work experience. If you are unem-

ployed because of your age and you can still do

a significant number of jobs which exist in the

national economy, we will find that you are not

disabled. We explain in detail how we consider

your age as a vocational factor in Appendix 2.

However, we will not apply these age categories

mechanically in a borderline situation.

(b) Younger person. If you are under age

50, we generally do not consider that your age

will seriously affect your ability to adapt to a

new work situation. In some circumstances,

however, we consider age 45 a handicap in

adapting to a new work setting (see Rule 201.17

in Appendix 2).

are closely approaching advanced age (50-54),

we will consider that your age, along with a

severe impairment and limited work experience,

may seriously affezt your ability to adjust to a

significant number of jobs in the national econ-

omy.

(d) Person of advanced age. We consider

that advanced age (55 or over) is the point

where age significantly affects a person’s ability

to do substantial gainful activity. If you are

severely impaired and of advanced age and you

cannot do medium work (see § 404.1567(c)),

you may not be able to work unless you have

skilis that can be used in (transferred to) less

demanding jobs which exist in significant num-

bers in the national economy. If you are close

4la

to retirement age (60-64) and have a severe

impairment, we will not consider you able to

adjust to sedentary or light work unless you

have skills which are highly marketable.

(e) Information about your age. We will

usually not ask you to prove your age. However,

if we need to know your exact age to determine

whether you get disability benefits or if the

amount of your benefit will be affected, we will

ask you for evidence of your age.

§ 404.1564 Your education as a_ vocational

factor.

(a) General. “Education” is primarily used

to mean formal schooling or other training which

contributes to your ability to meet vocational

requirements, for example, reasoning ability,

communication skills, and arithmetical ability.

However, if you do not have formal schooling,

this does not necessarily mean that you are

uneducated or lack these abilities. Past work

experience and the kinds of responsibilities you

had when you were working may show that you

have intellectual abilities, although you may have

little formal education. Your daily activities,

hobbies, or the results of testing may also show

that you have significant intellectual ability that

can be used to work.

(b) Hew we evaluate your education. The

importance of your educational background may

depend upon how much time has passed between

the completion of your formal education and the

beginning of your physical or mental impair-

ment(s) and by what you have done with your

education in a work or other setting. Formal

42a

education that you completed many years before

your impairment began, or unused skills and

knowledge that were a part of your formal

education, may no longer be useful or meaning-

ful in terms of your ability to work. Therefore,

the numerical grade level that you completed in

school may not represent your actual educational

abilities. These may be higher or lower. How-

ever, if there is no other evidence to contradict

it, we will use your numerical grade level to

determine your educational abilities. The term

“education” also includes how well you are able

to communicate in English since this ability is

often acquired or improved by education. In

evaluating your educational level, we use the

following categories:

(1) IMWliteracy. Illiteracy means the inability

to read or write. We consider someone illiterate

if the person cannot read or write a simple

message such as instructions or inventory lists

even though the person can sign his or her name.

Generally, an illiterate person has had little or

no formal schooling.

(2) Marginal education. Marginal education

means ability in reasoning, arithmetic, and lan-

guage skills which are needed to do simple, un-

skilled types of jobs. We generally consider that

formal schooling at a 6th grade level or less is a

marginal education.

(3) Limited education. Limited education

means ability in reasoning, arithmetic, and lan-

guage skills, but not enough to allow a person

with these educational qualifications to do most

of the more complex job duties needed in semi-

skilled or skilled jobs. We generally consider

43a

that a 7th grade through the 11th grade level

of formal education is a limited education.

(4) High school education and above. High

school education and above means abilities in

reasoning, arithmetic, and language skills ac-

quired through formal schooling at a 12th grade

level or above. We generally consider that some-

one with these educational abilities can do semi-

skilled through skilled work.

(5) Inability to communicate in English.

Since the ability to speak, read and understand

English is generally learned or increased at

school, we may consider this an educational fac-

tor. Because English is the dominant language

of the country, it may be difficult for someone

who doesn’t speak and understand English to do

a job, regardless of the amount of education the

person may have in another language. There-

fore, we consider a person’s ability to com-

municate in English when we evaluate what

work, if any, he or she can do. It generally

doesn’t matter what other language a person

may be fluent in.

(6) Information about your education. We

will ask you how long you attended school and

whether you are able to speak, understand, read

and write in English and do at least simple

calculations in arithmetic. We will also consider

other information about how much formal or

informal education you may have had through

your previous work, community projects, hob-

bies, and any other activities which might help

you to work.

44a

§ 404.1565 Your work experience as a voca-

tional factor.

(a) General. “Work experience” means skills

and abilities you have acquired through work you

have done which show the type of work you may

be expected to do. Work you have already been

able to do shows the kind of work that you

may be expected to do. We consider that your

work experience applies when it was done within

the last 15 years, lasted long enough for you to

learn to do it, and was substantial gainful ac-

tivity. We do not usually consider that work

you did 15 years or more before the time we

are deciding whether you are disabled (or when

the disability insured status requirement was

last met, if earlier) applies. A gradual change

occurs in most jobs so that after 15 years it is

no longer realistic to expect that skills and abili-

ties acquired in a job done then continue to

apply. The 15-year guide is intended to insure

that remote work experience is not currently

applied. If you have no work experience or

worked only “off-and-on” or for brief periods

of time during the 15-year period, we generally

consider that these do not apply. If you have

acquired skills through your past work, we con-

sider you to have these work skills unless you

cannot use them in other skilled or semi-skilled

work that you can now do. If you cannot use

your skills in other skilled or semi-skilled work,

we will consider your work background the same

as unskilled. However, even if you have no work

experience, we may consider that you are able

to do unskilled work because it requires little

or no judgment and can be learned in a short

period of time.

45a

(b) Information about your work. Under cer-

tain circumstances, we will ask you about the

work you have done in the past. If you cannot

give us all of the information we need, we will

try, with your permission, to get it from your

employer or other person who knows about your

work, such as a member of your family or a

co-worker. When we need to consider your work

experience to decide whether you are able to do

work that is different from what you have done

in the past, we will ask you to tell us about all

of the jobs you have had in the last 15 years.

You must tell us the dates you worked, all of

the duties you did, and any tools, machinery,

and equipment you used. We will need to know

about the amount of walking, standing, sitting,

lifting and carrying you did during the work

day, as well as any other physical or mental

duties of your job. If all of your work in the

past 15 years has been arduous and unskilled,

and you have very little education, we will ask

you to tell us about all of your work from the

time you first began working. This information

could help you to get disability benefits.

§ 404.1566 Work which exists in the national

economy.

(a) General. We consider that work exists

in the national economy when it exists in signifi-

cant numbers eicher in the region where you live

or in several other regions of the country. It

does not matter whether—

(1) Work exists in the immediate area in

which you live;

(2) A specifie job vacancy exists for you; or

46a

(3) You would be hired if you applied for

work.

(b) How we determine the existence of work.

Work exists in the national economy when there

is a significant number of jobs (in one or more

occupations) having requirements which you are

alle to meet with your physical or mental abili-

ties and vocational qualifications. Isolated jobs

that exist only in very limited numbers in rela-

tively few locations outside of the region where

you live are not considered “work which exists

in the national economy”. We will not deny you

disability benefits on the basis of the existence

of these kinds of jobs. If work that you can do

does not exist in the national economy, we will

determine that you are disabled. However, if

work that you can do does exist in the national

economy, we will determine that you are not

disabled.

mine that you are not disabled if your residual

functional capacity and vocational abilities make

it possible for you to do work which exists in

the national economy, but you remain unem-

ployed because of—

(1) Your inability to get work;

(2) Lack of work in your local area;

(3) The hiring practices of employers;

(4) Technological changes in the industry in

which you have worked;

(5) Cyclical economic conditions ;

(6) No job openings for you;

(7) You would not actually be hired to do

work you could otherwise do; or

(8) You do not wish to do a particular type

of work.

47a

(d) Administrative notice of job data. When

we determine that unskilled, sedentary, light,

and medium jobs exist in the national economy

(in significant numbers either in the region

where you live or in several regions of the coun-

try), we will take administrative notice of re-

liable job information available from various

governmental and other publications. For ex-

ample, we will take notice of—

(1) Dictionary of Occupational Titles, pub-

lished by the Department of Labor;

(2) County Business Patterns, published by

the Bureau of the Census;

(3) Census Reports, also published by the

Bureau of the Census;

(4) Occupational Analyses, prepared for the

Social Security Administration by various State

employment agencies; and

(5) Occupational Outlook Handbook, pub-

lished by the Bureau of Labor Statistics.

(e) Use of vocational experts and other spe-

cialists. If the issue in determining whether you

are disabled is whether your work skills can be

used in other work and the specific occupations

in which they can be used, or there is a similarly

complex issue, we may use the services of a

vocational expert or other specialist. We will

decide whether to use a vocational expert or

other specialist.

§ 404.1567 Physical exertion requirements.

To determine the physical exertion require-

ments of work in the national economy, we

classify jobs as “sedentary,” “light,” “medium,”

“heavy,” and “very heavy.’ These terms have

48a

the same meaning as they have in the Dictionary

of Occupational Titles, published by the Depart-

ment of Labor. In making disability determina-

tions under this subpart, we use the following

definitions:

(a) Sedentary work. Sedentary work involves

lifting no more than 10 pounds at a time and

occasionally lifting or carrying articles like

docket files, ledgers, and small tools. Although

a sedentary job is defined as one which involves

sitting, a certain amount of walking and stand-

ing is often necessary in carrying out job duties.

Jobs are sedentary if walking and standing are

required occasionally and other sedentary cri-

teria are met.

(b) Light work. Light work involves lifting

no more than 20 pounds at a time with frequent

lifting or carrying of objects weighing up to

10 pounds. Even though the weight lifted may

be very little, a job is in this category when it

requires a good deal of walking or standing, or

when it involves sitting most of the time with

some pushing and pulling of arm or leg con-

trols. To be considered capable of performing

a full or wide range of light work, you must

have the ability to do substantially all of these

activities. If someone can do light work, we

determine that he or she can also do sedentary

work, unless there are additional limiting fac-

tors such as loss of fine dexterity or inability to

sit for long periods of time.

lifting no more than 50 pounds at a time with

frequent lifting or carrying of objects weighing

up to 25 pounds. If someone can do medium

49a

work, we determine that he or she can also do

sedentary and light work.

(d) Heavy work. Heavy work involves lift-

ing no more than 100 pounds at a time with

frequent lifting or carrying of objects weighing

up to 50 pounds. If someone can do heavy work,

we determine that he or she can also do medium,

light, and sedentary work.

(e) Very heavy work. Very heavy work in-

volves lifting objects weighing more than 100

pounds at a time with frequent lifting or carry?

ing of objects weighing 50 pounds or more. If

someone can do very heavy work, we determine

that he or she can also do heavy, medium, light

and sedentary work.

§ 404.1568 Skill requirements.

In order to evaluate your skills and to help

determine the existence in the national economy

of work you are able to do, occupations are

classified as unskilled, semi-skilled, and skilled.

In classifying these occupations, we use ma-

terials published by the Department of Labor.

When we make disability determinations under

this subpart, we use the following definitions:

(a) Unskilled work. Unskilled work is work

which needs little or no judgment te do simple

duties that can be learned on the job in a short

period of time. The job may or may not require

considerable strength. For example, we consider

jobs unskilled if the primary work duties are

handling, feeding and offbearing (that is, plac-

ing or removing materials from machines which

are automatic or operated by others), or machine

tending, and a person can usually learn to do the

50a

job in 30 days, and little specific vocational prep-

aration and judgment are needed. A person

does not gain work skills by doing unskilled jobs.

(b) Semi-skilled work. Semi-skilled work is

work which needs some skills but does not re-

quire doing the more complex work duties. Semi-

skilled jobs may require alertness and close

attention to watching machine processes; or in-

specting, testine or otherwise looking for ir-

regularities; or tending or guarding equipment,

property, materials, or persons against loss,

damage or injury; or other types of activities

which are similarly less complex than skilled

work, but more complex than unskilled work.

A job may be classified as semi-skilled where

coordination and dexterity are necessary, as

when hands or feet must be moved quickly to

do repetitive tasks.

ifications in which a person uses judgment to

determine the machine and manual operations

to be performed in order to obtain the proper

form, quality, or quantity of material to be pro-

duced. Skilled work may require laying out

work, estimating quality, determining the suit-

ability and needed quantities of materials, mak-

ing precise measurements, reading blueprints or

other specifications, or making necessary com-

putations or mechanical adjustments to control

or regulate the work. Other skilled jobs may

require dealing with people, facts, or figures or

abstract ideas at a high level of complexity.

(d) Skills that can be used in other work

(transferability). (1) What we mean by trans-

ferable skills. We consider you to have skills

6la

that can be used in other jobs, when the skilled

or semi-skilled work activities you did in past

work can be used to meet the requirements of

skilled or semi-skilled work activities of other

jobs or kinds of work. This depends largely on

the similarity of occupationally significant work

activities among different jobs.

(2) How we determine skills that can be

transferred to other jobs. Transferability is

most probable and meaningful among jobs in

which—

(i) The same or a lesser degree of skill is

required ;

(ii) The same or similar tools and machines

are used; and

(iii) The same or similar raw materials, prod-

ucts, processes, or services are involved.

(3) Degrees of transferability. There are de-

grees of transferability of skills ranging from

very close similarities to remote and incidental

similarities among jobs. A complete similarity

of all three factors is not necessary for trans-

ferability. However, when skills are so special-

ized or have been acquired in such an isolated

vocational setting (like many jobs in mining,

agriculture, or fishing) that they are not readily

usable in other industries, jobs, and work set-

tings, we consider that they are not transfer-

able.

§ 404.1569 Listing of Medical-Vocational Guide-

lines in Appendix 2.

The Dictionary of Occupational Titles includes

information about jobs (classified by their exer-

tional and skill requirements) that exist in the

52a.

national economy. Appendix 2 provides rules

using this data reflecting major functional and

vocational patterns. We apply these rules in

cases where a person is net doing substantial

gainful activity and is prevented by a severe

medically determinable impairment from doing

vocationally relevant past work. The rules in

Appendix 2 do not cover all possible variations

of factors. Also, as we explain in § 200.00 of

Appendix 2, we do not apply these rules if one

of the findings of fact about the person’s voca-

tional factors and residual functional capacity

is not the same as the corresponding criterion of

a rule. In these instances, we give full consid-

eration to all relevant facts in accordance with

the definitions and discussions under vocational

considerations. However, if the findings of fact

made about all factors are the same as the rule,

we use that rule to decide whether a person is

disabled.

5. The Medical-Vocational Guidelines, 20 C.F.R.

Part 404, Subpart P, Appendix 2, provide:

APPENDIX 2—MEDICAL——VOCATIONAL

GUIDELINES

Sec.

200.00 Introduction.

201.00 Maximum sustained work capability

limited to sedentary work as a result of

severe medically determinable impair-

ment(s).

202.00 Maximum sustained work capability

limited to light work as a result of severe

medically determinable impairment(s).

53a

203.00 Maximum sustained work capability

limited to medium work as a result of

severe medically determinable impair-

ment(s).

204.00 Maximum sustained work capability

limited to heavy work (or very heavy work)

as a result of severe medically determinable

impairment(s).

200.00 Introduction. (a) The following rules

reflect the major functional and vocational

patterns which are encountered in cases which

cannot be evaluated on medical considerations

alone, where an individual with a severe medi-

cally determinable physical or mental impair-

ment(s) is not engaging in substantial gainful

activity and the individual’s impairment(s) pre-

vents the performance of his or her vocationally

relevant past work. They also reflect the analy-

sis of the various vocational factors (i.e., age,

education, and work experience) in combination

with the individual’s residual functional capac-

ity (used to determine his or her maximum sus-

stained work capability for sedentary, light,

medium, heavy, or very heavy work) in evaluat-

ing the individual’s ability to engage in substan-

tial gainful activity in other than his or her

vocationally relevant past work. Where the find-

ings of fact made with respect to a particular

individual’s vocational factors and residual func-

tional capacity coincide with all of the criteria

of a particular rule, the rule directs a conclu-

sion as to whether the individual is or is not dis-

abled. However, each of these findings of fact

is subject to rebuttal and the individual may

present evidence to refute such findings. Where

54a

any one of the findings of fact does not coincide

with the corresponding criterion of a rule, the

rule does not apply in that particular case and,

accordingly, does not direct a conclusion of dis-

abled or not disabled. In any instance where a

rule does not apply, full consideration must be

given to all of the relevant facts of the case in

accordance with the definitions and discussions

of each factor in the appropriate sections of the

regulations.

(b) The existence of jobs in the national econ-

omy is reflected in the “Decisions” shown in the

rules; i.e., in promulgating the rules, adminis-

trative notice has been taken of the numbers of

unskilled jobs that exist throughout the national

economy at the various functional levels (seden-

tary, light, medium, heavy, and very heavy) as

supported by the “Dictionary of Occupational

Titles” and the “Occupational Outlook Hand-

book,” published by the Department of Labor;

the “County Business Patterns” and “Census

Surveys” published by the Bureau of the Cen-

sus; and occupational surveys of light and seden-

tary jobs prepared for the Social Security Ad-

ministration by various State employment agen-

cies. Thus, when all factors coincide with the

criteria of a rule, the existence of such jobs is

established. However, the existence of such jobs

for individuals whose remaining functional ca-

pacity or other factors do not coincide with the

criteria of-a rule must be further considered in

terms of what kinds of jobs or types of work

may be either additionally indicated or pre

cluded.

dividual’s residual functional capacity (i.e., the

55a

maximum degree to which the individual retains

the capacity for sustained performance of the

physical-mental requirements of jobs), age, edu-

cation, and work experience must first be deter-

mined.

(d) The correct disability decision (i.e., on

the issue of ability to engage in substantial gain-

ful activity) is found by then locating the in-

dividual’s specific vocational profile. If an in-

dividual’s specific profile is not listed within this

Appendix 2, a conclusion of disabled or not dis-

abled is not directed. Thus, for example, an in-

dividual’s ability to engage in substantial gain-

ful work where his or her residual functional

capacity falls between the ranges of work indi-

cated in the rules (e.g., the individual who can

perform more than light but less than medium

work), is decided on the basis of the principles

and definitions in the regulations, giving consid-

eration to the rules for specific case situations

in this Appendix 2. These rules represent vari-

ous combinations of exertional capabilities, age,

education and work experience and also provide

an overall structure for evaluation of those cases

in which the judgments as to each factor do not

coincide with those of any specific rule. Thus,

when the necessary judgments have been made

as to each factor and it is found that no specific

rule applies, the rules still provide guidance for

decisionmaking, such as in cases involving com-

binations of impairments. For example, if

strength limitations resulting from an individ-

ual’s impairment(s) considered with the judg-

ments made as to the individual’s age, education

and work experience correspond to (or closely

approximate) the factors of a particular rule,

56a

the adjudicator then has a frame of reference

for considering the jobs or types of work pre-

cluded by other, nonexertional impairments in

terms of numbers of jobs remaining for a par-

ticular individual.

(e) Since the rules are predicated on an in-

dividual’s having an impairment which mani-

fests itself by limitations in meeting the

strength requirements of jobs, they may not be

fully applicable where the nature of an individ-

ual’s impairment does not result in such limita-

tions, e.g., certain mental, sensory, or skin im-

pairments. In addition, some impairments may

result solely in postural and manipulative limi-

tations or environmental restrictions. Environ-

mental restrictions are those restrictions which

result in inavility to tolerate some physical fea-

ture(s) of work settings that occur in certain

industries or types of work, e.g., an inability to

tolerate dust or fumes.

(1) In the evaluation of disability where the

individual has solely a nonexertional type of im-

pairment, determination as to whether disability

exists shall be based on the principles in the ap-

propriate sections of the regulations, giving con-

sideration to the rules for specific case situations

in this Appendix 2. The rules do not direct fac-

tual conclusions of disabled or not disabled for

individuals with solely nonexertional types of

impairments.

(2) However, where an individual has an

impairment or combination of impairments re-

sulting in both strength limitations and nonexer-

tional limitations, the rules in this subpart are

considered in determining first whether a find-

ing of disabled may be possible based on the

57a

strength limitations alone and, if not, the

rule(s) reflecting the individual’s maximum

residual strength capabilities, age, education,

and work experience provide a framework for

consideration of how much the individual’s work

capability is further diminished in terms of any

types of jobs that would be contraindicated by

the nonexertional limitations. Also, in these

combinations of nonexertional and exertional

limitations which cannot be wholly determined

under the rules in this Appendix 2, full consid-

eration must be given to all of the relevant facts

in the case in accordance with the definitions

and discussions of each factor in the appropriate

sections of the regulations, which will provide

insight into the adjudicative weight to be ac-

corded each factor.

201.00 Maximum sustained work capability

limited to sedentary work as a result of

severe medically determinable impairment(s).

(a) Most sedentary occupations fall within the

skilled, semi-skilled, professional, administrative

technical, clerical, and benchwork classifications.

Approximately 200 separate unskilled sedentary

eecupations can be identified, each representing

mumerous jobs in the national economy. Ap-

proximately 85 percent of these jobs are in the

machine trades and benchwork occupational

categories. These jobs (unskilled sedentary oc-

cupations) may be performed after a short dem-

onstration or within 30 days.

(b) These unskilled sedentary occupations

are standard within the industries in which they

exist. While sedentary work represents a sig-

nificantly restricted range of work, this range in

58a

itself is not so prohibitively restricted as to

negate work capability for substantial gainful

activity.

may be expected where the individual has spe-

cial skills or experience relevant to sedentary

work or where age and basic educational com-

petence provide sufficient occupational mobility

to adapt to the major segment of unskilled

sedentary work. Inability to engage in substan-

tial gainful activity would be indicated where an

individual who is restricted to sedentary work

because of a severe medically determinable im-

pairment lacks special skills or experience rele-

vant to sedentary work, lacks educational quali-

fications relevant to most sedentary work (e.¢.,

has a limited education or less) and the indi-

vidual’s age, though not necessarily advanced, is

a factor which significantly limits vocational

adaptability.

(d) The adversity of functional restrictions

to sedentary work at advanced age (55 and

over) for individuals with no relevant past work

or who can no longer perform vocationally rele-

vant past work and have no transferable skills,

warrants a finding of disabled in the absence of

the rare situation where the individual has re-

cently completed education which provides a

basis for direct entry into skilled sedentary

work. Advanced age and a history of unskilied

work or no work experience would ordinarily

offset any vocational advantages that might ac-

erue by reason of any remote past education,

whether it is more or less than limited educa-

tion.

(e) The presence of acquired skills that are

readily transferable to a significant range of

skilled work within an individual’s residual

functional capacity would ordinarily warrant a

finding of ability to engage in substantial gain-

ful activity regardless of the adversity of age,

or whether the individual’s formal education is

commensurate with his or her demonstrated skill

level. The acquisition of work skills demon-

strates the ability to perform work at the level

of complexity demonstrated by the skill level at-

tained regardless of the individual’s formal edu-

cational attainments.

(f) In order to find transferability of skills

to skilled sedentary work for individuals who

are of advanced age (55 and over), there must

be very little, if any, vocational adjustment in

terms of tools, work processes, work settings, or

the industry.

(g) Individuals approaching advanced age

(age 50-54) may be significantly limited in voca-

tional adaptability if they are restricted to

sedentary work. When such individuals have no

past work experience or can no longer perform

vocationally relevant past work and have no

transferable skills, a finding of disabled ordi-

narily obtains. However, recently completed ed-

ucation which provides for direct entry into

sedentary work will preclude such a finding.

For this age group, even a high school educa-

tion or more (ordinarily completed in the remote

past) would have litle impact for effecting a vo-

cational adjustment unless relevant work experi-

ence reflects use of such education.

60a

(h) The term “younger individual” is used to

denote an individual age 18 through 49. For

’ those within this group who are age 45-49, age

is a less positive factor than for those who are

age 18-44. Accordingly, for such individuals:

(1) who are restricted to sedentary work, (2)

who are unskilled or have no transferable skills,

(3) who have no relevant past work or who can

no longer perform vocationally relevant past

work, and (4) who are either illiterate or unable

to communicate in the English language, a find-

ing of disabled is warranted. On the other hand,

age is a more positive factor for those who are

under age 45 and is usually not a significant

factor in limiting such an individual’s ability to

make a vocational adjustment, even an adjusi-

ment to unskilled sedentary work, and even

where the individual is illiterate or unable to

communicate in English. However, a finding of

disabled is not precluded for those individuals

under age 45 who do not meet all of the criteria

of a specific rule and who do not have the ability

to perform a full range of sedentary work. The

following examples are illustrative: Example 1:

An individual under age 45 with a high school

education can no longer do past work and is re-

stricted to unskilled sedentary jobs because of

a severe medically determinable cardiovascular

impairment (which does not meet or equal the

listings in Appendix 1). A permanent injury of

the right hand limits the individual to seden-

tary jobs which do not require bilateral manual

dexterity. None of the rules in Appendix 2 are

applicable to this particular set of facts, because

this individual cannot perform the full range of

6la

work defined as sedentary. Since the inability

to perform jobs requiring bilaterial manual dex-

terity significantly compromises the only range

of work for which the individual is otherwise

qualified (i.e., sedentary), a finding of disabled

would be appropriate. Example 2: An illiter-

ate 41 year old individual with mild mental re-

tardation (IQ of 78) is restricted to unskilled

sedentary work and cannot perform vocationally

relevant past work, which had consisted of un-

skilled agricultural field work; his or her par-

ticular characteristics do not specifically meet

any of the rules in Appendix 2, because this in-

dividual cannot perform the full range of work

defined as sedentary. In light of the adverse

factors which further narrow the range of

sedentary work for which this individual is qual-

ified, a finding of disabled is appropriate.

(i) While illiteracy or the inability to com-

municate in English may significantly limit an

individual’s vocational scope, the primary work

functions in the bulk of unskilled work relate to

working with things (rather than with data or

people) and in these work functions at the un-

skilled level, literacy or ability to communicate

in English has the least significance. Similarly

the lack of relevant work experience would have

little significance since the bulk of unskilled jobs

require no qualifying work experience. Thus,

the functional capability for a full range of

sedentary work represents sufficient numbers of

jobs to indicate substantial vocational scope for

those individuals age 18-44 even if they are

illiterate or unable to communicate in English.

TABLE No. 1—RESMUAL FUNCTIONAL CAPACITY: MaximuM SUSTAINED WorK CAPABILITY LIMITED

TO SEDENTARY WORK AS A RESULT OF SEVERE MEDICALLY DETERMINABLE IMPAIRMENT(S)

Rule Age

Education

Previous work experience Decision

201.01........ Advanced age...............

201.02......... ....do.......

201.04........ Advanced age...............

201.06......... ....d0

201.06. «ol.

201.07 «lO

201.08. «=O.

Limited or less

--w lO.

High school graduate or

more—does not provide for

direct entry into skilled

work 2,

High school graduate or

more—provides for direct

entry into skilled work ?.

High school graduate or

more—does not provide for

direct entry into skilled

work 2.

---. 0,

High school graduate or

more—provides for direct

entry into skilled work 2.

Limited or less.

Unskilled or none..................... Disabled.

Skilled or semiskilled—skills Do.

not transferable '.

Skilled or semiskilled—skills Not disabled.

transferable !.

Unskilled or none..................... Disabled.

--- 0, .- Not disabled.

Skilled or semiskilled—skills Disabled.

not transferable '.

Skilled or semiskilled—skills Not disabled.

transferable }.

Skilled or semiskilled—skills Do.

not transferable '.

Unskilled or none..................... Disabled.

201.10........ -- 0.

201.11...... do

201.12......... -... do

201.18......... -.-- do.

201.14........ --- do.

201.165........ -...do

201.16...... do.

age 45-49.

201.18.. do.

201.19... do

High school graduate or

more—does not provide for

direct entry into skilled

work ®

High school graduate or

more—provides for direct

entry into skilled work °.

High school graduate or

more—does not provide for

direct entry into skilled

work 8.

---. 0.

High school graduate or

more—provides for direct

entry into skilled work °.

Illiterate or unable to commu-

nicate in English.

Limited or less—at least liter-

ate and able to communi-

cate in English.

Limited or less.

Skilled or semiskilled—skills Do.

not transferable.

Skilled or semiskilled—skills Not disabled.

transferable.

Unskilled or none................ .. Disabled.

-...40. . Not disabled.

Skilled or semiskilled—skills Disabled.

not transferable.

Skilled or semiskilled—skills Not disabled.

transferable.

Skilled or semiskilled—skills Do.

not transferable.

Unskilled or none.................... Disabled.

Not disabled.

Skilled or semiskilled—skills Do.

not transferable.

Rule Age Edcation Previous work experience Decision

ee do. -.0. Skilled or semiskilled—skills Do.

transferable.

a do. High schocl graduate or more Skilled or semiskilled—skills Do.

; not transferable.

201.22. do —_ = Skilled or semiskilled—skills Do.

transferable.

201.23........ Younger individual Illiterate or unable to commu- Unskilled or none.................... Do.*

age 18-44. nicate in English.

201.24. ----O. Limited or less—at least liter- do Do

ate and able to communi-

cate in English.

201.25........ ---.do. Limited or less. Skilled or semiskilled—skills Do

not transferable.

201.26........ ....do. -. lO, Skilled or semiskilled—skills Do.*

transferable.

201.27........ ....do. High school graduate or more Unskilled or none..................... Do#

201.28........ — = ead Skilled or semiskilled—skills Do*

not transferable.

201.29........ ....do. —— ... Skilled or semiskilled—skills Do.‘

transferable.

1 See 201.00(f).

2 See 201.00(d).

8 See 201.00(g).

* See 201.00(h).

65a

202.00 Maximum sustained work capability

limited to light work as a result of severe medi-

cally determinable impairment(s). (a) The

functional capacity to perform a full range of

light work includes the functional capacity to

perform sedentary as well as light work. Ap-

proximately 1,600 separate sedentary and light

unskilled occupations can be identified in eight

broad occupational categories, each occupatior

representing numerous jobs in the national econ-

omy. These jobs can be performed after a short

demonstration or within 30 days, and do not re-

quire special skills or experience.

(b) The functional capacity to perform a

wide or full range of light work represents sub-

stantial work capability compatible with making

a work adjustment to substantial numbers of

uns:illed jobs and thus generally provides suffi-

cient occupational mobility even for severely im-

paired individuals who are not of advanced age

and have sufficient educational competence for

unskilled work.

who can no longer perform vocationally relevant

past work and who have a history of unskilled

work experience, or who have only skills that are

not readily transferable to a significant range

of semi-skilled or skilled work that is within

the individual’s functional capacity, or who have

no work experience, the limitations in vocational

adaptability represented by functional restric-

tion to light work warrant a finding of disabled.

Ordinarily, even a high school education or more

which was completed in the remote past will

have little positive impact on effecting a voca-

66a

tional adjustment unless relevant work experi-

ence reflects use of such education.

(d) Where the same factors in paragraph (c)

of this section regarding education and work

experience are present, but where age, though

not advanced, is a factor which significantly

limits vocational adaptability (i.e., closely ap-

proaching advanced age, 50-54) and an individ-

ual’s vocational scope is further significantly

limited by illiteracy or inability to communicate

in English, a finding of disabled is warranted.

(e) The presence of acquired skills that are

readily transferable to a significant range of

semi-skilled or skilled work within an individ-

ual’s residual functional capacity would ordinar-

ily warrant a finding of not disabled regardless

of the adversity of age, or whether the in-

dividual’s formal education is commensurate

with his or her demonstrated skill level. The ac-

quisition of work skills demonstrates the ability

to perform work at the level of complexity dem-

onstrated by the skill level attained regardless

of the individual’s formal educational attain-

ments.

(f) For a finding of transferability of skills

to light work for individuals of advanced age

who are closely approaching retirement age (age

60-64), there must be very little, if any, voca-

tional adjustment required in terms of tools,

work processes, work settings, or the industry.

(g) While illiteracy or the inability to com-

municate in English may significantly limit an

individual’s vocational scope, the primary work

functions in the bulk of unskilled work relate to

working with things (rather than with data or

67a

people) and in these work functions at the un-

skilled level, literacy or ability to communicate

in English has the least significance. Similarly,

the lack of relevant work experience would have

little significance since the bulk of unskilled jobs

require no qualifying work experience. The

capability for light work, which includes the

ability to do sedentary work, represents the

capability for substantial numbers of such jobs.

This, in turn, represents substantial vocational

scope for younger indiviauals (age 18-49) even

if illiterate or unable to communicate in English.

TABLE No. 2—RESIUAL FUNCTIONAL CaPactry: MAXIMUM SUSTAINED WorK CAPABLITY LIMITED

TO LIGHT WoRK AS A RESULT OF SEVERE MEDICALLY DETERMINABLE IMPAIRMENT(S)

Rule Age Education Previous work experience Decision

202.01........ Advanced age............... Limited or less....................-... Unskilled or none... Disabled.

202.02......... ....do i ieitinliaiaiiiaaes el SARE Serer Skilled or semiskilled—skills Do.

not transferable.

202.03......... -...do lo Skilled or semiskilled—skills Not disabled.

transferable '.

202.04......... ....do.. High school graduate or Unskilled or none..................... Disabled.

more—does not provide for

direct entry into skilled

work 2,

202.05 Advanced age High school graduate or Unskilled or none..................... Not disabled.

more—provides for direct

entry into skilled work *.

ae ™ High school graduate or Skilled or semiskilled—skills Disabled.

more—does not provide for not transferable.

direct entry into skilled

work 2,

= = eit saditiabekegmnnsiidaiatiaiaetandiidia Skilled or semiskilled—skills Not disabled.

transferable ?.

202.08........ .... re ee High school graduate or Skilled or semiskilled—skills Do.

more—provides for direct not transferable.

entry into skilled work 2.

202.09........ Closely approaching Illiterate or unable to commu- Unskilled or none .................... Disabled.

advanced age nicate in English.

202.10......... .... do

202.11...... do

908.18....... do

908.18......0. .- do

202.14. do

202.16......... .... do

202.16..... Younger individual...

202.17 «oe,

202.18........ ----.do

202.19 do.

—— —— sigue

1 See 202.00(f).

2 See 202.00(c).

Limited or less—At least liter-

ate and able to communi-

cate in English.

Pe SEL ee ee

Illiterate or unable to commu-

nicate in English.

Limited or less—At least liter-

ate and able to communi-

cate in English.

Limited or less

.. lo,

High school graduate or more.

«=O.

Skilled or semiskilled—skills

not transferable.

Skilled or semiskilled—skills

transferable.

Unskilled or none..

Skilled or semiskilled—skills

not transferable.

Skilled or semiskilled—skills

transferable.

Unskilled or none....................

Skilled or semiskilled—skills

not transferable.

Skilled or semiskilled—skills

transferable.

Unskilled or none...

Skilled or semiskilled—skills

not transferable.

Skilled or semiskilled—skills

transferable.

Not disabled.

70a

203.00 Maximum sustained work capability

limited to mediwm work as a result of severe

medically determinable impairment(s). (a) The

functional capacity to perform medium work in-

cludes the functional capacity to perform seden-

tary, light, and medium work. Approximately

2,500 separate sedentary, light, and medium oc-

cupations can be identified, each occupation rep-

resenting numerous jobs in the national econ-

omy which do not require skills or previous ex-

perience and which can be performed after a

short demonstration or within 30 days.

(b) The functional capacity to perform me-

dium work represents such substantial work

capability at even the unskilled level that a find-

ing of disabled is ordinarily not warranted in

cases where a severely impaired individual re-

tains the functional capacity to perform medium

work. Even the adversity of advanced age (55

or over) and a work history of unskilled work

may be offset by the substantial work capability

represented by the functional capacity to per-

form medium work. However, an _ individual

with a marginal education and long work expe-

rience (i.e., 35 years or more) limited to the

performance of arduous unskilled labor, who is

not working and is no longer able to perform

this labor because of a severe impairment(s),

may still be found disabied even though the in-

dividual is able to do medium work.

work experience becomes a more significant ad-

versity for individuals of advanced age (55 and

over). Accordingly, this factor, in combination

with a limited education or less, militates

Tla

against making a vocational adjustment to even

this substantial range of work and a finding of

disabled is appropriate. Further, for individuals

closely approaching retirement age (60-64) with

a work history of unskilled work and with mar-

ginal education or less, a finding of disabled is

appropriate.

TABLE No. 3—RESIUAL FUNCTIONAL CaAPAcrTy: MAXIMUM SUSTAINED WorK CAPABILITY LIMITED

TO Meprum WorkK AS A RESULT OF SEVERE MEDICALLY DETERMINABLE IMPAIRMENT(S)

Rule Age Education Previous work experience Decision

203.01........_ Closely approaching Marginal or none. Unskilled or none.......... Disabled.

retirement age.

203.02........ ....d0. Limited or less. None. Do.

208.08........ . lO. Limited Unskilled. . Not disabled.

203.04........ ....d0. Limited or less. Skilled or semiskilled—skills Do.

not transferable.

203.05........ ....do «lO Skilled or semiskilled—skills Do

transferable.

208.06........ ....do. High school graduate or more Unskilled or none..................... Do.

OS OT—o——— High school graduate or more Skilled or semiskilled—skills Do.

—does not provide for di- not transferable.

rect entry into skilled work.

203.08........ ....do. eon. : Skilled or semiskilled—skills Do

transferable.

203.09........ ....d0. High school graduate or more Skilled or semiskilled—skills Do

—provides for direct entry not transferable.

into skilled work.

208.10........ Advanced age................ Limited or less. Eas aaa ee See Disabled.

i, ell col. ‘ Unskilled...... .. Not disabled.

do. eon. ; Skilled or semiskilled—skills Do.

not transferable.

208.18........ en =~ = Skilled or semiskilled—skills Do.

transferable.

C) ——_ a =

203.165........ ....d0.

203.16. mm)

203.17........ ....do

203.18........ Closely approaching

advanced age.

203.19........ ....d0.

203.20........ ....d0.

203.21 «=» 0.

ae =

a do. -

203.265........ Younger individual.

203.26....... =

High school graduate or more

—does not provide for di-

= entry into skilled work.

High school graduate or more

—provides for direct entry

into skilled work.

Limited or less.

_—

High school graduate or more

—does not provide for di-

rect entry into skilled werk.

High school graduate or more

—provides for direct entry

into skilled work.

Limited or 1eas.............cccccc.00e+-

Unskilled or none................

Skilled or semiskilled—skills

not transferable.

Skilled or semiskilled—skills

transferable.

Skilled or semiskilled—skills

not transferable.

Unskilled or none....................

Skilled or semiskilled—skills

not transferable.

Skilled or semiskilled—skills

transferable.

Skilled or semiskilled—skills

not transferable.

Unskilled or none...

Skilled or semiskilled—skills

not transferable.

oF F F PP FPF FF FF

Rule Age Education Previous work experience Decision

a --O, Skilled or semiskilled—skills Do.

transferable.

208.28........ ....d0. High school graduate or more Unskilled or none.................... Do.

208.29........ ....do. High school graduate or more _ Skilled or semiskilled—skills Do.

—does not provide for di- not transferable.

rect entry into skilled work.

203.30........ ....d0. -..dO Skilled or semiskilled—skills Do.

transferable.

| ee _ — High school graduate or more Skilled or semiskilled—skills Do.

—provides for direct entry not transferable.

into skilled work.

75a

204.00 Maximum sustained work capability

limited to heavy work (or very heavy work) as

a result of severe medically determinable im-

pairments(s). The residual function capacity

to perform heavy work or very heavy work in-

cludes the functional capability for work at the

lesser functional levels as well, and represents

substantial work capability for jobs in the na-

tional economy at all skill and physical demand

levels. Individuals who retain the functional

capacity to perform heavy work (or very heavy

work) ordinarily will not have a severe impair-

ment or will be able to do their past work—

either of which would have already provided a

basis for a decision of “not disabled”. Environ-

mental restrictions ordinarily would not signifi-

cantly affect the range of work existing in the

national economy for individuals with the physi-

cal capability for heavy work (or very heavy

work). Thus an impairment which does not pre-

clude heavy work (or very heavy work) would

not ordinarily be the primary reason for unem-

ployment, and generally is sufficient for a find-

ing of not disabled, even though age, education,

and skill level of prior work experience may be

considered adverse.

W ov. S. GOVERNMENT PRINTING Orrice; 1962 371097 859

Office -Supreme Court, U.S.

FILED

Ra SEP 238 1982

No. 81-1983

ALEXANDER L. STEVAS,

ney RK

In the Supreme Court of the United States

OCTOBER TERM, 1981

RICHARD S. SCHWEIKER, SECRETARY OF HEALTH AND

HuMAN SERVICES, PETITIONER

CARMEN CAMPBELL

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

JOINT APPENDIX

Joun C. Gray, Jr. Rex E. Lee

RuBeN NAZARIO Solicitor General

Brooklyn Legal Services Corp. B Department of Justice

105 Court Street Washington, D.C. 20530

Brooklyn, New York 11201 (202) 633-2217

(212) 855-8003

Petition For Writ Of Certiorari Filed April 26, 1982

Certiorari Granted June 21, 1982

In the Supreme Court of the United States

OCTOBER TERM, 1981

No. 81-1983

RICHARD S. SCHWEIKER, SECRETARY OF HEALTH AND

HUMAN SERVICES, PETITIONER

Vv.

CARMEN CAMPBELL

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

INDEX

SS CS HII Sv kccdccbadccedsincs veces cevese 1

Letter from Reza Khatib, M.D. (November 9, 1978) ..... 3

Letter from Reza Khatib, M.D. (February 6, 1979) ...... 5

Letter from Reza Khatib, M.D. (February 28, 1979) ..... 7

Letter from Reza Khatib, M.D. (May 14, 1979) .......... 8

Letter from Reza Khatib, M.D. (July 5, 1979) ........... 10

Letter from Reza Khatib, M.D. (August 1, 1979) ........ 12

Letter from Reza Khatib, M.D. (September 27, 1979) .... 13

Letter from Reza Khatib, M.D. (October 24, 1979) ....... 15

Disability Determination and Transmittal (December 1,

alacdy eee beuhbednduetnnn ceeds veueeesecdeuener 17

Social Security Disability Denial Notice (December 10, 1979) 19

Letter from Milton Lowenthal, M.D. (February 19, 1980) . 21

Medical Report of Reza Khatib, M.D. (March 11, 1980) ... 23

(1)

Cases—Continued Page

Disability Determination and Transmittal (March 21, 1980) 26

Letter from Milton Lowenthal, M.D. (June 5, i980) ...... 28

Letter from Milton Lowenthal, M.D. (August 8, 1980) ... 30

Questionnaire as to Residual Functional Capacity (August 14,

RE Pr rer Tr rrT ery Teer Tere rye 31

Transcript of Hearing Before Administrative Law Judge

SE CEE chcodeunoedewd conesibsceeenddseuce 3d

Letter from Reza Khatib, M.D. (November 10, 1980) .... Ys)

ee I ic ckckccintencdcccccseccenus 56

Relevant Docket Entries

CV-81-0155

1/19/81—By SIF TON, J. order dated 1/15/81 allowing plaintiff

to proceed in forma pauperis, filed. pg (1)

1/19/81—Complaint filed, summons issued. pg (2)

1/23/81—Summons return filed/executed. el (3)

2/3/81—Copy of letter dtd 1/30/81 from Ben Wiles to Ms.

Campbell, enclosing a copy of an order setting a date for a

status conf., for 4/20/81 at 10 am. Filed. Is (4)

2/17/81—By COSTANTINO, J.—Stipulation dtd 2/10/81, ex-

tending deft’s time to answer until 3/30/81. Filed. Is (5)

4/14/81—ANSWER to complaint with certified transcript,

filed. Is (6)

4/20/81—Before CONSTANTINO, J., case called—counsel for

both sides present, conf held & defts motion for summary

judgment is argued & decision reversed. gv —

4/23/81—Notice of appearance of JOHN C. GRAY, JR as

attorney for pltff, filed. pg (7)

4/29/81—By CONSTANTINO, J.—Order dtd 4/28/81, that the

determination of the Secretary is supported by sub-

stantial evidence. Accordingly, the petition is dismissed.

A more detailed explanation will be forthcoming. Filed.

(c/m) Is (8)

4/30/81—Clerk’s Judgment dtd 4/29/81, that the pltff take

nothing of the deft and that judgment is hereby entered in

favor of deft and against pltff dismissing the complaint.

filed. (p/e sent) 1s (9)

5/22/81—Stenographer’s transcript dtd 4/20/81, filed gb (1)

5/28/81—NOTICE OF APPEAL FILED. Copies to all par-

ties. el (11)

6/15/81—Scheduling order from the C of A that the record on

appeal be filed on or before 6/30/81. Argument of the

(1)

appeal shall be ready to be heard during week of 8/31/81.

Filed. Is (12)

6/30/81—Record on appeal certified and mailed to the C of A

with certified copy of docket entries. pg

7/7/81—Acknowledgment from the C of A of receipt of the

record on appeal. Filed.

7/28/81—By COSTANTINO, J. Memo of decision and order

dated 7/27/81, affirming the decision of the Administrative

Law Judge & the Appeals Council, filed. pg (14)

7/30/81—Judgment dtd 7-29-81 affirming the administrative

decision filed (15)

EXHIBIT 15

November 9, 1978

Dr. Safanoff

161 Asland Place

Brooklyn, New York

RE: CARMEN CAMPBELL

79 Lorraine St.

Brooklyn, New York

Carrier No: 3532C38843

Emp: Americana Hotel

Dear Dr. Safanoff:

Mrs. Campbell was in to see me for neurological consultation

on 11/6/78. She is 50 years of age and right handed. She is

complaining of lower back pain extending to her left lower

extremity. She went to Union Family Clinic and was referred

to Dr. Walker on 34th Street. Therapy given did not help Mrs.

Campbell is still complaining of intermittent severe lower back

pain extending to left lower extremity. Pain is aggrevated by

walking, bending, coughing, etc. She gets some relief on rest-

ing. She got slightly better and returned to work on Aug. 23rd,

1978 but still suffers from back pain radiating to left lower

extremity. She returned to work for financial] reasons.

She was injured at work for the first time in 5/14/73 and was

out of work for about five weeks. Her compensation case was

closed on Oct. 3, 1974. Since then she has been having in-

termittent radicular pain. In March of 75 she was admitted to

Brooklyn Hospital put on traction and physiotherapy and got

better. She was sent home but still have pain on and off until

March of 78 when her pain became aggrevated and she stopped

working. ,

Past History: No smoking or drinking.

Neurological examination: Elimination of lower back move-

ment. Spasm of lumbar parabertrebral muscle. Restricted

straight leg raising left. Weakness of extensor halluous longus

muscle. Hypalgesis over dorsum of foot L5 dermatomic zone.

No reflex changes.

Impression: Lumbar radicular syndrome probably due to

herniated dise L4-L5 left.

Recommendation: Hospitalization for myelogram since pa-

tients symptoms and signs persist. Request for myelogram.

Thank you for referring this patient to me.

Very truly yours,

Reza Khatib, M.1.C.P.

ec: Workmens compensation board

A/N

Exhibit No. 15

EXHIBIT 16

REZA KHATIB, M.D. P.C.

Tel. 212-464-4600

Reza Khatib, M.D., F.A.C.S. Reza Khatib, M.D., F.A.C.S.

Medical Suite 86-74 Palermo Street

121 DeKalb Avenue Holliswood, N.Y. 11423

Brooklyn, N.Y. 11201

2/6/79

Hartford Insurance Co.

123 William Street

New York City, New York

RE:Campbell, Carmen

79 Lorraine St.

Brooklyn, New York

Carrier No: 332C38843

Empl: Americana Hotel

Gentlemen:

Mrs. Campbell was admitted to Brooklyn Hospital on 1/2/79.

She was seen and evaluated by Insurance Company’s physician

and authorization was given for surgery. (See previous report

on 1/4/79). She had Laminectomy on 1/10/79 for removal of

Herniated Disc. Post-op patient’s radicular pain subsided and

she was discharged on 1/24/79.

Today 2/5/79 Mrs. Campbell was in for a follow up office visit.

Patient is doing well, she complains of mild pain in lower back.

No more radicular pain.

Neurological Examination: Wound healed well. Mild limita-

tion of lower back movements.

No weakness. Patient weighs

198 lbs.

Recomendation: Reduce weight

Mrs. Campbell is to return to my office within 3 weeks.

Very truly yours,

Reza Khatib, M.D.,P.C.

Reza Kuatis, M.D.,P.C.

RK/ac

ec: Workmens Compensation Board

A/N

Exhibit No. 16

EXHIBIT 17

REZA KHATIB, M.D. P.C.

Tel. 212-464-4600

Reza Khatib, M.D., F.A.C.S. Reza Khatib, M.D., F.A.C.S.

Medical Suite 86-74 Palermo Street

121 DeKalb Avenue Holliswood, N.Y. 11423

Brooklyn, N.Y. 11201

2/28/79

Hartford Insurance Co.

123 Williams Street

New York City, New York

Re: Campbell, Carmen

79 Lorraine St.

Brooklyn, New York

Carrier No: 3532C38843

Empl: Americana Hotel

Gentlemen:

Mrs. Campbell was in to see me for a follow up visit on 2/26/79.

Patient is doing better, she complains of mild pain and stiffness

in lower back.

Neurological Examination: Wound healed well. Mild limita-

tion of lower back movements.

No reflex changes, no weakness.

Very truly yours,

Reza Kuatis, M.D.,P.C.

Rx/ac

ec: Workmens Compensation

Board

A/N

Exhibit No. 17

EXHIBIT 18

REZA KHATIB, M.D. P.C.

Tel. 212-464-4600

Reza Khatib, M.D., F.A.C.S. Reza Khat'», M.D., F.A.C.S.

Medical Suite 86 (4 Palermo Street

121 DeKalb Avenue Holliswood, N.Y. 11423

Brooklyn, N.Y. 11201

May 14, 1979

Hartford Insurance Company

123 Williams Street

New York, New York

Re: Campbell, Carmen

79 Lorraine St.

Brooklyn, New York

Carrier No: 3532C38843

Empl: Americana Hotel

Sheraton Centre

7th Ave., N.Y., N.Y.

Gentlemen:

Mrs. Campbell was in to see me today for a follow up visit, the

patient is feeling better. She still complains of mild soreness in

lower back.

Neurological Examination: Wound healed well. Mild limita-

tion of lower back movements.

No weakness. No reflex

changes.

Recommendation: Patient was admitted to hospital on 1/2/

79, she had a Laminectomy on 1/10/79 for removal of herniated

disc. She may return to work in early June only if she avoids

lifting heavy objects or strenuous work. This is important for

patients recovery.

Very truly yours,

Reza Khatib, M.D.P.C.

R/Kpd

ec: Workmens Compensation Board

ec: Americana Hotel-Sheraton Centre

A/N

Exhibit No. 18

EXHIBIT 19

REZA KHATIB, M.D. P.C.

Tel. 212-464-4600

Reza Khatib, M.D., F.A.C.S. Reza Khatib, M.D., F.A.C.S.

Medical Suite 86-74 Palermo Street

121 DeKalb Avenue Holliswood, N.Y. 11423

Brooklyn, N.Y. 11201

July 5th, 1979

Hartford Insurance Company

123 Williams Street

New York, N.Y.

Re: CAMPBELL, CARMEN

79 Lorraine St.

Bklyn, N.Y.

Carrier No: 3532C38843

Empl: Americana Hotel-

Sheraton Centre

7th Ave. N.Y.C., N.Y.

D/A: Unknown

Gentlemen:

Mrs. Campbell was in to see me for a follow up office visit on

7/2/79.

Patient is doing better. Complains of occasional intermittent

pain in lower back. She complains also of neck pains radiating

to right upper extremity.

Patient states that there is no light duty job for her at her

previous work.

Neurological Examination: Within Normal Limits.

Patient may return to light duty work.

Very truly yours,

Reza Khatib, M.D.P.C.

RK/pd

ce: Workmens Compensation Board

Americana Hotel-Sheraton Centre

A/N

Exhibit No.

EXHIBIT 20

REZA KHATIB, M.D. P.C.

Tel. 212-464-4600

Reza Khatib, M.D., F.A.C.S. Reza Khatib, M.D., F.A.C.S.

Medical Suite 86-74 Palermo Street

121 DeKalb Avenue Holliswood, N.Y. 11423

Brooklyn, N.Y. 11201

Aug. Ist, 1979

Hartford Insurance Company g

123 William Street

New York, N.Y.

Re: CAMPBELL, CARMEN

79 Lorraine St.

Bklyn, N.Y.

Carrier #3532C38843

Empl: Americana Hotel-

Sheraton Centre

D/A: Unknown

Gentlemen:

Mrs. Campbell was in to see me for a follow up office visit on

7/30/79. Patient’s condition has remained unchanged. She still

complains of lower back pain after walking, standing for a

while or lifting a heavy object.

Neurological Examination: No neurological findings.

Very truly yours,

Reza Khatib, M.D.P.C.

RK/pd

ec: Workmens Compensation Board

Americana Hotel

A/N

Exhibit No. 20

EXHIBIT 21

REZA KHATIB, M.D. P.C.

Tel. 212-464-4600

Reza Khatib, M.D., F.A.C.S. Reza Khatib, M.D., F.A.C.S.

Medical Suite 86-74 Palermo Street

121 DeKalb Avenue Holliswood, N.Y. 11423

Brooklyn, N.Y. 11201

September 27th, 1979

Hartford Insurance Co.

123 Williams Street

New York, N.Y.

RE: CAMPBELL,

CARMEN

79 Lorraine Street

Carrier #3532C38843

Empl: Americana Hotel-

Sheraton Centre

D/A: Unknown

Gentlemen:

Mrs. Campbell was in to see me for a follow up office visit on

9.25.79. The patient is eager to return to work, but her employ-

er does not want her. She still has mild pain in lower back, no

radicular pain.

Neurological Examination: Within Normal Limitations.

Patient should return to work, avoid lifting heavy objects and

strenuous work.

Very truly yours,

Reza Khatib, M.D., P.C.

RK/pd

ee: Workmens Compensation Board

Americana Hotel

A/N

Exhibit No. 21

EXHIBIT 22

REZA KHATIB, M.D. P.C.

Tel. 212-464-4600

Reza Khatib, M.D., F.A.C.S. Reza Khatib, M.D., F.A.C.S.

Medical Suite 86-74 Palermo Street

121 DeKalb Avenue Holliswood, N.Y. 11423

Brooklyn, N.Y. 11201

10-24-79

Hartford Insurance Co.

123 Williams Street

New York, N.Y.

RE: CARMEN CAMPBELL

79 Lorraine Street

Emp: Americana Hotel-

Sheraton Centre

Carrier No: 3532C38843

D/A: Unknown

Gentlemen:

Mrs. Campbell was in to see me for a follow up office visit on

10/22/79. The patient states that she is willing to return to work

but her employer does not want her.

She is complaining of lower back pain radiating to left lower

extremity.

Neurological Examination: Limitation of lower back move-

ments with restricted straight

leg raising. No weakness. No re-

flex changes.

Very truly yours,

Reza Khatib, M.D.,P.C.

RK/pd

ec: Workmens Compensation Board

A/N

Exhibit No. 22

g790CT 17 4¥ 8 14

LeveL AAA tat [16/6/79

- | LS $N

Towa a ea

OATE OF CURRENT DETERAT:On ermouen AGE 12 (C08 Or)

Urensios oA -

x as a

Soares)

_—

Guu lo?

pal? oe (2)

a “ls h he

—

OUP ARTMENT OF HEALTH. EDUCATION, AND WEL ARE

hens a CONTINUATION SHEET

FOR DISABILITY DETERMINATION ~ GB:ele 4

CONTINUATION OF RATIONALE OF SSA-831 OR SSA-833 - = ;

Co Rio re ey

carmen campse | | 093-40-3689 DB

Allegations:

Herniated dsc and hypertension.

Sources:

Brooklyn Hospital

Dr. ReWa Khatib

Pacts:

ae apes mage exam shows that the claimant has low

back on alter excision of herniated ise - There is

restricted straight leg raising but nonwedkness or Sensory oF

reflex changes.

Bospita progress notes showed no evidence of end

organ involvement regarding claimnt's hypertension.

Combination of impairments is not severe and there

is no interference with any work related activity.

Claim is denied.

(WET a 0D DATE)

Se Tew ee ee a ee

EXHIBIT 3

Social Security Disability Denial Notice

From: Department Of Health Education And Welfare

Social Security Administration

Date: Dec. 10, 1979

Claim Number: 093-40-3689 A

Carmen Campbell

Apt 2D

79 Lorraine St

Brooklyn NY 11231

We have determined that you are not entitled to dis-

ability benefits. In reaching this decision we con-

sidered how much your condition has affected your

ability to work. After carefully studying your records,

including the medical evidence and your statements,

and considering your age, education, training, and

experience, it has been determined that your condi-

tion is not disabling within the meaning of the law. If

your condition should get worse and prevent you from

doing any substantial gainful work, you should get in

touch with any social security office about filing

another disability application.

Your social security record at the time you filed your

application shows that you meet the earnings require-

ment for disability purposes until 12/31/83. Any addi-

tional earnings which may be credited to your record

after the time you applied may, of course, extend this

date. (An explanation of the disability requirement

and the earnings requirement is given on the back of

this notice.)

The decision on your claim was made by the Social

Security Administration on the basis of a disability

determination by an agency of the state in which you

live. Physicians and other trained disability evalua-

tion personnel in the state agency participate in mak-

ing such determinations.

According to your present earnings record and the

date of birth you gave us you have enough credit for

work under social security to qualify you for retire-

ment benefits at age 62.

If you believe that this determination is not correct,

you may request that your case be re-examined. If you

want this reconsideration, you must request it not

later than 60 days from the date you receive this

notice. You may make your request through any social

security office. If you have additional evidence, sub-

mit it with your request. Please read the enclosed

leaflet for a full explanation of your right to question

the determination made on your claim.

If you do not request reconsideration of your case

within the prescribed time period, you still have the

right to file another application at any time.

Important: See other side for information about your

claim.

Department of Health, Education, and Welfare

Social Security Administration

Form SSA-L793-C1 (2-79)(Formerly SSA-L793)

Prior editions may be used until supply is exhausted.

A/N

Exhibit No. 3

EXHIBIT 31

February 19, 1980

Re: Ms. Carmen Campbell

355 C 38843

D.1.: 1/15/73

Flagship Americana

Mr. Arnold Malin

The Hartford Insurance Group

P.O. Box 17

New York, New York 10038

Dear Mr. Malin:

At your request I saw Ms. Campbell in my office on this date.

Ms. Campbell sustained a low back injury on January 15,

1973 while working at her regular job. Pain was across the low

back and radiated to below the left knee. Though still in pain,

she returned to work in five weeks. She continued working but

occasionally had to stop for periods ranging up to four months.

In December 1978 pain was quite severe. Ms. Campbell was

hospitalized. In January 1979 the patient had surgery for a

herniated disc. In June 1979 she tried again to return to work

but was refused a job in the sewing section. Pain is present at

all times mainly in the low back on the left. Sitting tolerance

twenty minutes. Standing tolerance one hour. Walking is lim-

ited to two blocks. Sleep is not disrupted by pain.

Past History: Hypertension over ten years controlled with a

diuretic.

Examination: Height 5'6’’. Weight 202 pounds. Blood pres-

sure: 148/88. Movements are slightly guarded. Lumbar curve

is increased. There is moderate to marked tenderness over the

lower lumbar spine. Pelvis is level. Forward flexion of low back

40 degrees. Extension and left lateral flexion of 20 degrees.

Right lateral flexion 40 degrees. No atrophy or shortening of

the lower extremities. Range of motion and motor power at

hips, knees and ankles normal. SLR is resisted on the right at

60 degrees and 40 degrees on the left. I

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