# Record and brief — Heckler v. Campbell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_2070%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1983 - **Citation:** 461 U.S. 458 ## 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) IV 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\ allesny dab lity due bn a horace led dite sad ng porbeassven ° TH Cct . miedeceat eusdesce shower Prat Re elemned? we — a horas ley duc attlre had a lam tae ss wd eres level af -Gcr on ila P — else see has = bd lob. ce prin. ~Teere cd Some len ater Taal ba ch pape oh sad reslncted léy a bate barre — as wtae¥acls ec retlen chen ts P Mra clencnts mastrecen.t- blx~J ee? fine readin er a acrnal’ lat Ne clasacct Gg Fi yest ol 4 snoilil a hen de sedos/ 7, Gheashian “er tl Salieri “as AF sons af i a “~ - cade shey whith 3 considered Legh a :_ rr rkKarem b Fe (tb hw.F Me eteies al hw re capaceby be 9 -_ nil Ash work wit. SA Te Conclusion e * a Tew leit ht ha clement me. « aang the “se Lb yore a her past wir ay t™ wed iter thre cls (~A Ctbtaled | 28 EXHIBIT 28 June 5, 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: Ms. Campbell was seen by me on this date in my office for a re-evaluation visit. The patient had begun to respond to a rehabilitation pro- gram which was terminated when she was hospitalized for an unrelated condition. She had been resting at home for the past two months and low back pain returned to its previous level. Sitting tolerance is less than 30 minutes. Standing tolerance is one hour. Walking is limited to two blocks. Examination: Movements are moderately guarded. The lumbar curve is increased. Gait is slow but normal. Pelvis is levei. There is diffuse tenderness over the entire lumbar spine and adjacent soft tissue, especially so on the left. Forward flexion of low back 30 degrees. Extension and left lateral flexion less than 20 degrees. Right lateral flexion 30 degrees. No atrophy or shortening of the lower extremities. Range of motion and motor power evaluation limited by guarding but appears to be normal at hips, knees and ankles. SLR is resisted on the right at 40 degrees and at 30 degrees on the left. Knee jerks and ankle jerks activ» ead equal. Plantar responses are flexor. 29 Impression: Disuse remains the main problem in limiting tolerance for physical activity. Recommendation: Rehabilitation therapy will be resumed and progress will be re-evaluated after six sessions. Sincerely yours, Milton Lowenthal, M.D. SM 1 200 929 ML:1 RECEIVED DURING HEARING Exhibit No. _28 NR. OF PAGES ____ 30 August 8, 1980 Mr. Arnold Malin The Hartford Insurance Group P.O. Box 17 New York, New York 10038 Dear Mr. Malin: I saw Ms. Campbell in this re- evaluation of her status in : There has been slow progress for physical activ- ity. She is now comfortable lying supine. Walking, standing and sitting abilities Examination: Movements remain very guarded. Local find- ings are unchanged. Recommendation: Continue treatment creasing emphasis on exercise and activity at home. Ms. Campbell shows a dramatic response to further therapy she will be discharged to home exercise within one month. Sincerely yours, Milton Lowenthal, M.D. BEST TYPED COPY OF THE FOLLOWING PAGE FOR LEGIBILITY 31 QUESTIONNAIRE AS TO RESIDUAL : Name of Patient FUNCTIONAL CAPACITY: , PHYSICAL IMPAIRMENT ’ Cp 4 ‘ $ Social Security No. Pear Doctor: atient's claim for Social Security disability benefits. Please ase your answers on how your patient's mecical conditions affect Bo ability to function. - Nature, frequency and length of contact: Fi fsT Ape alee. nits Ke- eye! phe + ho Please answer the following questicrs with regard to your -— a C's Please describe patient's symptoms (incjuding patient reports “of pain, dizziness, etc.) Seve se batu rr Pascoe sites wel od 192$ bur fain febseszs _3. Stete all clinical findings, leboratory ane test results. C Heth wi as 1 = ses tie 2. p, Lvt lee 1 Mat Me mTo s LshP hy Su AP Leb ' fe eu LLL Eleia o£ fey, Mad . Zz a eT , a Lhereeel Plexi mn Yo* Sek @esesree nw PT AL éo* + deer vet AEP AT ferre regal, Lenser taba L = —s Diasnosis = 4 14 5. Treatment and response, including list of mesicaticons prescribed ° ané their sice effects a Tikic hte beew Ns chauer sm Roheceuwe eh thyewsal | fe Tiee ry : 6. Prognosis : Btfetes fo» ma 7. Has the patient's impairsrent lastee or can it >be ervsected to lass at least twelve months? Yes [4 No 8. How long can the patient continuously stan? 30 My . Bow long can the patient continuously sit? 30 Avex 10. How long can the patien: alternately sit cr stand at one tire? _/ Aan, 4 11. Coes the petient have to lie down during th: day? Ye S If yes, please explain. S$ L ore A 115 l?7. Is the patient able to travel alone by bus? See By subway? Yeo i) Does the patient have any sight or hearing impairment? lho 7 19. Comments: Date: ¢ hey le Signed: Print Name Tm bo eta ria! Address: 2Y0 E 2¢7H% <> MY Leer o 34 Department Of HEALTH, EDUCATION AND WELFARE SOCIAL SECURITY ADMINISTRATION Bureau Of Hearings And Appeals TRANSCRIPT In the case of Claim for Period of Disability and Carmen Campbell Disability Insurance Benefits (claimant) U9} 40-0089 (wage earner) (leave blank if same as (Social Security Number) above) Hearing Held at New York, New York on August 22, 1980 Appearances Carmen Campbell, Claimant ~~ 0.T. DENNING CANDY BARKER Administrative Law Judge Hearing Assistant 35 INDEX OF TRANSCRIPT In the Case of: Account Number: Carmen Campbell, Claimant 093-40-3689 Testimony of Carmen Cambell ......... Commencing p. 1 (The following is a transcript of the hearing held before O. T. Denning, an Administrative Law Judge of the Office of Hear- ings and Appeals, Social Security Administration, Depart- ment of Health and Human Services, on August 22, 1980, at New York, New York, in the case of Carmen Campbell, claimznt in her own behalf and based on her own earnings recori, social security account number 093-40-3689. The claims nt, Carmen Campbell, appeared in person.) (The hearing commenced at 12:00 noon, August 22, 1980.) OPENING STATEMENT BY ADMINISTRATIVE LAW JUDGE: ALJ: The hearing is in order. Would you please stand. Raise your hand. Move closer to the microphone. (The claimant, CARMEN CAMPBELL, having been first duly sworn, testified as follows:) EXAMINATION BY ADMINISTRATIVE LAW JUDGE: Q. State your full name and address? A. My name is Carmen Jessie (phonetic) Campbell, single. Right now I still—well should I state my mother’s name (phonetic). Q. Ididn’t understand anything you said. Please start over again. I want to know your name and address as if I was going to write you a letter and you were going to get it in the mail. Just tell me who to write it, address it to, where to address it to, zip code and all. Start, please. A. Carmen, I guess it’s Campbell. 79 Lorraine Street, Apartment 2D, like in Daisy, Brooklyn, New York 11231. Q. Thank you. Can you be reached by telephone? A. Yes, sir. Q. What’s that numer? A. 855-4388. 36 Q. In the notice of hearing, Miss Campbeil, you were advised of your rights to be represented at this hearing by an attorney— A. Yes. Q. —orother qualified person of your choice. Since you are appearing here alone on your own behalf, I assume that you're prepared to go forward with the hearing without a representa- tive. Is this correct? A. Yes, sir, because I tried to seek a representative and I asked the Legal Aid, they told me that they couldn't assist and those who could assist me was charging me $35, an awful lot, and I do not have any money to pay this. Q. This is what Legal Aid told you? They’re gonna charge you $35? A. No, they told me that they couldn’t—that they didn’t have anyone available. Q. Isee. A. The others who I contacted told me that I'd have to pay them $35 for a lawyer and I do not have that kind of money. Q. All right. And you are ready to go forward without a representative, are you? A. I would have to, sir, because for the present moment if things get too difficult on me I would have to try and see if I could find one. But right now I’m willing to go forward and see what I can do to help myself. Q. All right. I might say this to you. If you want legal assistance or help and they are busy now, the case could be put off at a later time and whenever they could represent you. But if you want to go forward today and see what the evidence is and see if you need—need a representative, we are ready to do So. A. I’m willing to go forward. Q. All right. It is indicated by the record that you made a timely request for a hearing based on your application filed under Title II of the Social Security Act, as amended. You requested a hearing before an Administrative Law Judge. lam the Administrative Law Judge with the Office of Hearings and Appeals who will conduct your hearing. The record of the 37 proceeding is being made by tape recording. I will be taking evidence as to the severity and the expected duration of your impairments, whether your impairments are of such severity as to prevent the performance of your past relevant work, and whether you have the residual capacity to perform other types of work taking into account your age, education and work history. There is a lot of instances that we can take in evidence on your residual functional capacity to engage in sedentary, light, medium, or heavy work. This essentially, what we’re taking into account, your ability to walk, stand, sit, lift, push, pull or carry. I will take evidence and consider any mental, skin, sensory or environmental impairment that might limit your capacity to work. Evidence will also be taken as to your age, education and work experience. The general issue and specific issues were sent out in your notice of hearing. I'll briefly cover them at this time. Primary issue is disability. The disability must be medically determined physical or mental impairment which is expected to last for a continuous period of at least 12 months or result in death. There must be an inability to engage in substantial gainful activity, and that inability must be by reason of the impairment. I've gone through your file and selected the documents which I consider pertinent. And they have been identified as Exhibits Number 1 through 27. I understand that you have had an opportunity to review these documents. Is this correct? A. Yes, sir. Q. Do you object to having these documents put into evi- dence? A. No, sir. Q. There being no objection, Exhibits Number 1 through 27 are admitted into evidence and made part of the record. Did you bring additional medical reports? I believe you did. Today that you would like added to the file? You showed me a paper in writing entitled Workmen’s Com- pensation Board, Notice of Decision. This will be received and identified as Exhibit Number—You showed me a paper in 38 writing dated June the 5th, 1980, signed by Wilson Lowenthal (phonetic), M.D. This will be received and identified Exhibit Number 28. You showed me another paper in writing which appears to have been signed by Wilson— he same doctor, is it not? A. Yes, sir. I’m going to (inaudible) there. Q. All right. This will—and dated August 14, 1980. This will be received and identified Exhibit Number 29. You showed me another papar in writing which is barely—I can’t hardly tell what he’s saying on this one, but it’s the same doctor, and I can’t even make out the date, but we'll identify it as Exhibit Number 30. You showed me another paper in writing dated February 19, 1980, signed by the same physician, Dr. Lowenthal. This will be identified as Exhibit Number 31. And you showed me another paper in writing dated August 14, 1980. And this seems to be a physical evaluation—lI don’t believe this one’s signed. A. When I went to the Legal Aid he gave me those papers and told me he said he could get a doctor’s signature for me. Q. Uh-huh. A. You know. Q. Did Dr. Lowenthal fill this out? A. Yes, he filled this out. But finally I, you know, I signed both that—I was sent there by the insurance company so I don’t know what—what good would it make to where my interests— Q. I see. A. Because he’s working for the insurance company. Q. Allright. We’ll—We will receive any that you want to submit and identify Exhibit Number 22. And yeu’ve shown me a Notice of Decision from the Workmen’s Compensation Board. We'll receive this. And this will be identified Exhibit Number 33. All of them become a part of the record. After the hearing I will carefully study the record and deter- mine whether you can be found under disability based solely on your medical condition. If not, I will consider whether your impairments are severe and prevent you from performing your 39 past relevant work. If so, I will determine if you have the residual capacity to perform sedentary, light, medium or heavy work. Finding will also be made as to your age, educa- tion and work experience. The rules contained in Appendix 2 of the Regulations will be applied in determining whether you are disabled. If you—does not have—if you are—If your case does not fall under a particular rule or you have some non-exertional impairments, the rule will be used as a frame of reference to determine whether you are disabled. Before we get into the main issue and that is the issue of disability, there are some things I should tell you about the hearing. The procedure ir very simple. We are making a rec- ord. The record will consist of your testimony that you will offer plus the medical reports that’s in your file, plus if there are any additional medical reports you may care to submit. And you may submit medical evidence until—until you get a final decision. After we get all that information before us, we will evaluate it and we'll issue a decision, a written decision, and you will get a copy of it. Now you may not like that decision. If you don’t like the decision there are appeal rights on this decision. Very simply, take decision that you receive to the Social Security Office and tell them that you want to appeal. And they will issue the necessary papers and be sent to Washington, D.C. for review. They will evaluate your case and issue a decision. You may not like that decision either. If you don’t like that decision, you can appeal it again. The decision’s the important thing, of the moment, is to make a clear record so that if you appeal to Washington, you won't be abie to go. They will listen to your testimony as it was given here this morning. If you go to court, you won't be able to go there and testify either. They will just go on the record. They will give a decision based on the record. Further we would like to make a clear decision. I would like for you to talk plainly and transfer your voice, testimony, can be understood later if you do it clearly. I’m not saying you’re 40 gonna have to, I don’t know until I get all the evidence before me. I’ll ask you the questions. Be sure to respond to those questions with words, yes or no, and the information that is called for. If you’re having problems in different parts of your body such as pain in a joint or swelling, name the place or area rather than say I hurt here or I’m swollen and I can’t bend this joint. I may understand your answer, but it won’t be recorded on the equipment. This may hurt you if you appeal. We won't know whether you're talking about your back, your arms, your legs, your knees or where. So if it hurts your knee, say it, it’s my right knee, my left elbow, my lower back. Whatever the problem is, name it so they'll know. Before we get into that, however, there are some further documentation we need to do and I'll start by asking you to state your birth date. A. The 15th of January 1928. Q. How old are you now? A. 652. Q. Married? A. Recently. Q. You are married? A. Just one year ago. Q. All right. How many times have you been married? A. This is the second time. Q. How did your first marriage end? One of two ways, death or divorce? A. Divorce. Q. And who got the divorce, you or your husband? A. I did. Q. Who were you married to? A. Augustus Hines (phonetic). Q. And were there children born of that marriage? A. Yes, sir Q. How many? A. Two. Q. Are either one of those children dependent on you for support now? A. Right, my daughter. POPO PO co = OQPoros 41 And how old is the daughter? Well, she’s 23. She’s just out of Hunter College. She’s out—just out of college? She’s just out of college. And when was she 23? She was 23—She was—She will be 24 in November of year. In November. She was 23 in last November? Last November. All right. But she just came out of college this last month. I see, all right. She would probably be eligible for any benefits going from your—your eligibility because she’s not in college and 23 years old. What is your height? g OPOPOPOPOPOPOPLOPOPOPOD 5'6"'. Present weight? 185. Is that your usual weight? No, sir. What should it be? It generally runs from 200 to 210 but I am on a diet. When was the last time that you recall that you weight- 10? Before my operation. And when was that? The 10th of January 1979. All right. Have you been lower than 185? No, sir. Appetite good, fair or poor? Very good, too good. Sleeping good, fair or poor? Poor, sir. Smoke cigarettes? No, sir. Ever smoke? No, sir. Use alcohol to any extent? POP>OPOPOPOPO> 42 No, sir. Ever have an alcoholic problem? No, sir. Drive an automobile, have a license? No, sir. Are you right-handed or left-handed? Right-handed. The highest grade you completed in school? I went to the sixth grade in elementary school, finished. Where did you go to school? In Panama. How long have you been in the states? 16 years coming October 4th. I’m an American citizen right now. Q. How many—Have you attended any English classes here? Have you picked up the English— el peoperereris No, sir, just picked up my English since I came here. Your native tongue is Spanish? Spanish, sir. Do you speak another language other than Spanish? No. Do you—Do you read English? I read it, but the writing is a little difficult. You can understand it when you hear it spoken? Yes, I understand, but my pronunciation is not that Uh-hvh. Your writing, it is poor. Your reading it is fair to good? OPOPOPL> I can— And you can understand it fairly well? Yes, sir. All right. Have you had military training or service? No, sir Have you had vocational training? No, sir. Do you have any income now from any source that you depend on? Weekly or monthly check? A. Q. A. Well, they’re giving me $48 a week. That’s Welfare? No, compensation. 43 Oh, compensation. 48 a week. Uh-huh. Do you know how long that will last? Well the last time that I went to the hearing I was served by the—by the New York State doctor who prescribed that time the state therapy for three more months. After three months I don’t know what will be—what will happen. Q. Okay. Uh-huh. Any other income that you depend on now other than your Workmen’s Comp.? A. No, sir, I—I married last year, the 24th of August with expectation to get help, but due to my sickness and all the different, you know, things that I had, my marriage is ending and the (inaudible). Q. Uh-huh. A. That’s the reason why I’m trying to get my—some kind of help so I can sustain my therapy. Q. I don’t believe I asked you this, but there were no children born of the last marriage? A. No, sir, just—it just coming up a year. Q. Uh-huh. Then you and your husband haven’t adopted any children? A. No, sir. Q. But you are still living together now? A. Sometimes we are. Q. I beg your pardon? A. I said sometimes we are. He comes and goes. Q. I see. So you'd call your—within the conditions of probably (phonetic)? A. Yes, sir. Q. Last July when you got married were you fine and in good health then? A. No, sir, I was in—I was in—I had a (inaudible) opera- tion. I lost everything that, you know, that I worked for. My Red Cross (phonetic) and everything like that. And I think he married me on the basis of pity. Q. Uh-htvh. A. But it was too much for him to handle, I guess. Q. How long had—How long had you known him? >O>e 44 A. Iknowed him for a long time because he was—he used to take me back and forth to work in his car because I couldn't walk and I used to, you know, pay him for taking me back and forth. So I guess it was pity when he saw it in that I wasn’t working and everything had turned over on me. He asked me to marry him. Q. He was— A. And I would say that he’s a good person but to each his own. Q. And are your children living at home with you now? A. Yes, my daughter. 4 Your daughter. Is she working now? No, sir, she’s just out of school and she is taking differ- - courses, you know, Brooklyn College. Q. You're not working now? A. No, sir, I can’t. Q. When was the last time you was full-time employed? A. December 1978, the 10th of December, 1978, was the last year I worked. Q. What were you doing then? A. Iwas a maid then. Q. Where, I mean was you in a hospital or a motel or in a private home? A. The Sheraton Center of New York. Q. That’s a motel, isn’t it? A. A hotel. Q. Hotel? A. Yes. Q. How long have you followed maid work whether it was in a private home or you were in a commercial place? How long have you done that type of work? A. Well, when I came tothe United States I came over ona job. I came with (inaudible) and I worked with him for a period of, I think it was a year and nine months, sir. But I left my children in Panama and | sent for them—I had sent for them from working from the sister’s (phonetic) family, you know, who told you they would keep the children for you. And then they changed their mind. So sending for the children, I could no 45 longer work with the Dennises (phonetic) so I gotten this— that job. I got a third job, it was the 5th of June—of August of 1966 and the children came in the 14th of August 1966. So I—I was to leave that job so I could sleep home. I couldn’t be with them. And I had been working there ever since this—until December— Q. Okay, wait a minute. You said 1966? A. Yes, sir, 12 years and four months. Q. Asamaid now you did general housework as it is done in a public hotel? A. Yes. Q. Making beds. Cleaning rooms, dusting and that type work? A. And before—when—when the—when I had my acci- dent I was a seamstress in at the—and a uniform care. You were the what? A seamstress. A seamstress? Yes. In a uniform—in a what? In a uniform room. And I was a uniform— And were you working in the—in a—in the uniform— Yes, and then I'd do the both jobs, you know. Uh-huh. Was this for the hotel? Yes, sir, the same department— In other words you had moved up from maid to that? Yes, sir. Where did you learn that skill? I learned it from a friend of mine. Uh-huh. I learned it from a friend. How long did you do that? I did that from—lI did that from 1971 until 1974. After my accident, one year after my accident they send me back upstairs as a maid. Q. Which was the hardest job, the sewing or the maid? A. The maid job. The maid job, sir. Q. Why did they send you back to the hardest job? A. Well, because I figured they send me to their doctor and their doctors thought definitely that what was wrong with my >POPOPOPOPOPOPOP OPO 46 back, which I think it was just a pull, that I pulled something in my back, and this was a way of getting rid of me because I was going to create problems because they knew that | couldn't push those trucks and I couldn’t make the beds. And I tried to tell them this and they didn’t—they said, well, it was just that I have to do the maid job or else I will just have to leave. Q. Did they assign someone else to the other job? A. Offand on they did. But the union were looking at them and off and on they did. And I tried to see if they could put me off in 1975 I got sick. I tried to see if they could—if they would give me back the job. They told me no. And there have been a lot of tricks in it, you know, because they put people behind my back in the job and I’ve been looking to see and the union, too, you know, been trying to see if they would put anyone else in there. But they say they put them off and on. They wouldn't take anyone steady. Q. Well did your supervisors change? Did you have the same person over you that was over you all the time? A. Allthetime, sir. The same lady that I work five years as a maid which I have all kind of recommendation that she gave me. I was a good maid. And she told me, well, come I want to give you a little—I heard you sew, so will you come down and help me, I need you. And I came down and I sewed there from 71, "72, 73, [had the accident. By "74 she no longer want me in the sewing room. Q. How many other people were sewing at the same time you were sewing? A. Well, while I was sewing it was three of us and this was—this was her excuse that she no longer needs people since she only wants two. And she send me upstairs. And for the period of two years she would bring me down whenever they go on vacation or whenever she need anyone to fill in. She used to bring me down, you know. Q. After you had your injury, accident, could you do the sewing job? A. Mister, I had my two kids, my two children to support. And I tried to do anything just to bring in something because I 47 feel that I brought them into the United States, and I was told that they should not become a federal charge. Q. Uh-huh. A. And I’ve never asked for work here. I have never asked for anything. This is the first time that I’m—that I’m asking for help. Q. Uh-huh. A. And I believe that I brought these children in—I brought my son, he was 11. And my daughter was 9. And through my accident my son was to leave college and he went to the Navy. And he avoided me because he wouldn’t understand. They say you cannot hurt them. And he use a word (inaudible) and he don't pay me any mind. So and I didn’t want to lose my daughter, too, so I’ve been working with a slipped disc for four years before I took my operation. Q. How did that come about? How did you hurt your back? A. Well, while working in the laundry room, when she transferred me from upstairs to downstairs, I was assigned to come in every Saturday morning at 7:30 in the morning and open the laundry room. So when I came in, I had been doing it for—from "71 I been doing it and everything was fine. Some- where around ’73 I find that whenever I comes on Saturday morning, there’s always a load of trucks with heavy—the big trucks with linen that they take off the beds. And these fellows sort them and sending them to the laundry. So what happen is that there isn’t any laundry—there isn’t anywhere in the corri- dor for them to put the trucks so they stuck it into the laundry room. So I comes in—I’m the only person that comes in at 7:30 in the morning. So I do not have no help from the department or someone to help me take the trucks out. I generally ask some- one to help me. So when—when I find that this was going on continuously I told my boss, I says, they are putting trucks in the room and you see, sir, when I come—when I tried to walk in the door, the trucks are right inside of the door, so that I cannot goin. And then, you know, everybody is trying to get to their post. Everybody—the cooks want to get into the kitchen. The maids and there are people of all nation (phonetic). And if you do not give them a uniform, so that they get to their post, they 48 (inaudible) you up. So I always try to get there ahead of time so I can get things arranged, so I could have the facility of just giving it to them, you know. So when I told my boss and says they are putting those trucks in there and I cannot get them out, so he told me that he was gonna see to it that they don’t put their trucks in no more. It stopped for awhile and started again. And when I told it to one of the delegates of the union and she called the lady that was in charge and she told her, the second boss, he got mad, and he says, “You know what, I think you just cannot— (OFF THE RECORD TO CHANGE TAPE). CLAIMANT:—stop complaining.” Because I complained, that if I keep on complaining I was going to lose my job. So whenever I come and I see the trucks in there, | would either try to get someone to take it out for me, or I would try to take it out myself. BY ALJ: Q. Now what size truck are you talking about? A. Oh, big trucks, sir. I guess they carry about 200 pounds. Q. Ali right. A. Soitso happened that this morning I came, that Satur- day morning I came and the trucks was in there. And I look around to see if I could find someone to help me and I never see—and I couldn’t get no one. And as my children tell me, I always want to play a superwoman and I try to get the truck out and I, you know, wrestle with it and it seems like from wrestling with to get the truck out I either sprained my back or I think I just pulled a muscle. But from then they had to send me to Emergency. Q. Uh-huh. And did you later have surgery because of that? A. Yes, sir. Q. What year did you have surgery? A. Well when I got sick in ’75 the doctor told me that I had slipped a disc. Q. Uh-huh. 49 A. But after awhile they told me what the operation was all about and I didn’t want to take it until at least my daughter could, you know, finish school. Q. Uh-huh. A. So I never take it until— Q. Were you able to continue working? A. Iwas working off and on. They gave me—They gave me from the first—beginning they gave me some corset to wear. And I been working with a corset for approximately four years. Q. Uh-huh. So—So you continued to work awhile until the time you put your daughter through school. Yes, sir. And then later you did have surgery? Yes, sir. And that surgery was done when? The 10th of January, 1979. And did you work up till the surgery? Did I work? I stopped working the 10th of December. I stopped working the 10th of December of 1978. Q. 1978? But you had surgery, you said in ’79? A. Yes. Q. What did you do— A. No, January—January 1979. Q. January 1979? Oh, so you weren't out but about a week, about a month? A. Yes. Q. About a month and you had surgery. What hospital were you in? A. Well I went to Brooklyn Hospital. Q. And how have you been since the surgery. A. At the first—you know the first six months I figured more or less, I was just thinking that maybe I would lose the job. I have never lost. I always have a pain in my right—in my left side that goes straight down through my left leg. And it gets me in the heel of the legs (phonetic). And I feel needles. And then my leg’s getting heavy and it, you know, I cannot walk. I cannot sit too long. I cannot stand too long. I cannot stretch. Q. Can you bend? S popere> 50 A. Icannot bend. The doctor warned me not to lift weights. Q. Uh-huh. A. And— Q. 1 notice you have stood up several times since you've been in ere. Yes, because— Is it because it’s— Needles and pins. You’re uncomfortable? It’s uncomfortable. And then you stand awhile and you— I’ve got to sit. I have to sit. You have to—Do you have to alternate? To keep on standing or if you do—or you get tired of standing as well as sitting? A. If 1 stand too much it bothers me. If I sit too much it bothers me. I—I can’t lift. I can’t lift this whole side is practically, you know, numb. Q. Now this whole side, which side are you referring to? A. The left side is practically numb. And then— Q. What about the left arm? A. The left arm I can’t—I can’t raise. I can’t do anything too much. Since I’m going to therapy they are trying to see if they can try to relax my muscles. You're going to therapy now? How often do you go? Three times a week (inaudible). How long are you there when you go? An hour. One hour. It doesn’t make any difference what hour you're there? I have to get there at 1:00 o'clock. During the day? In the day. Because I asked them to let me come at that hour because if I do not get a seat on the subway, the rumbling of the subway gets my back hurting. It, you know— Q. Can you climb stairways, ma’m? A. No, sir. Q. Howdid you get up and down tothe subways then? How do you go down and come up? OPeorerer POPoPere 51 A. I try to find the easiest way out. I pay two fares to see if I get the lowest subway (phonetic). My subway that runs in my area is little nice street. And I’ve got to go up two escalators and two rows of steps. So I will take an extra bus and go down to Cherry Street and (inaudible) which I walk about 15 (phone- tic) flights down and, you know, that’s a walk a little way and to go down again (phonetic). Q. Have you a problem walking downstairs? A. Downstairs is—and I also have high blood pressure which I take a high blood pressure pill. Q. How long have you had high blood pressure? A. As far as I can remember. That’s the reason why I only have two children. Q. Uh-huh. The same doctor treating you with therapy a: the one treating your high blood pressure? A. No, sir. Q. And is your blood pressure kept under control with the medication? A. If I take the pill he say, it comes down. Q. It comes down. A. But if I get excited, it goes up. Q. What is the other medicine for? A. This is Valium for my nerves because I have sleepless nights. Q. How eften do you take Valium? A. He told me to take one and half a day and— Q. Uh-huh. Do you find it necessary to take one and a half everyday? A. Itrytoskip it because I heard on the TV that Valium is not good, you know, is addicting. Q. Yes. A. And I try to skip it as much as I can, but then I get sleepless nights and I get a pain straight through my—my left side of my neck and goes straight down to my foot. Q. Uh-huh. A. And Dr. Lowenthal has been giving me some pain kil- lers for— Q. What is that? What kind of pain pills? What does he call them? 52 A. I don’t know the name of it. Q. How often do you take these? HEARING ASSISTANT: Elavil (phonetic). ALJ: What? HEARING ASSISTANT: Elavil. ALF: And what dosage (phonetic)? HEARING ASSISTANT: 150 milligrams. BY ALJ: Q. How often do you take that? A. He told me I must take it as soon as something hap- pened, but keep on, I have to take one tablet daily (phonetic), Q. Is that the only pain pill you take? A. No, I’ve been through a lot of pain killers. Q. No, now. A. Right now I try to—but you see I get Anacin, you know. I take Anacin. Q. You take Anacin and that? A. Andthat. But there were days that when I used to work for the four years that the only thing that could keep me working was about eight Anacin a day. Q. Are you in pain most of the time now? A. Yes, sir. I don’t know if it’s because I’m taking the therapy and I am up and down or—but I’m in pain and it’s getting worse. Q. What does your doctor say now? Does he expect to get you well and back—back in—or are you expected to have tolive with this? A. Well, as I told you before, sir, that Dr. Catill (phonetic) is my surgeon. And he operated on me. And you have in your record that Dr. Stefano (phonetic) has been my medial doctor for the last past 12 years. But when I—They divide you in two. They say, well the accident is Compensation. Q. Right. A. And the medical doctor doesn’t take care of that. Q. Uh-huh. A. Solcannot ask Dr. Stefano anything about this left side because that belongs to Compensation. Q. Uh-huh. 53 A. SoDr. Catill told me that I need therapy. And he’s been asking for therapy for a long length of time and insurance wouldn’t grant the therapy. So finally I got a phone call and they told me that a gentleman wanted to come over to see me. So I worried where did he get my phone number and who is he working for. So he told me he was working for Compensation and he told me that he could help me to get a job and, you know, what for, and I told him, I said, mister, I’d be willing to take a job but I cannot even walk. So he tell me, well, you could come to my office and I try to see—find out who this office—who this office belongs to. And I think it was the Compensation, Reha- bilitation. So, anyhow, I went to the office and it end up to be the ICB (phonetic) Rehabilitation Clinic and I was seen by Dr. Lowenthal and he sent me down—he examined me and he sent me downstairs to this young man and he told me I need therapy three times a week. Q. Well this is what you’re doing— A. And finally now this is what I’m getting. So when I knew I was coming here and I didn’t have anyone to represent me, I was looking for a little evidence that I could bring along with me and I asked Dr. Lowenthal if he could give me my last report because he told me that he does report to the Compensa- tion Board. And when he gave me the report and those letters that I show you, this I read and I found out so who he is working for is the insurance company. So I don’t know if I was saved by the bell because when I went to—to the hearing in June and in July I was told that, you know, that the insurance lawyer said that he send me to his next doctor, and this next doctor say that I should only be interviewed every two months. And because the New York State doctor, she came upstairs and told the Judge that she already examined me and she would prefer that I continue therapy for three-for three more months. Q. Uh-huh. A. Soafter that I don’t know what will become of me, sir. Q. All right. I believe you have told me abeut your prob- lems. As I said before, I will evaluate your testimony along with the medical records. We will issue a decision and you 54 should get that decision, I don’t know, within three or four weeks from now. And you'll get a written decision from me. You have told me just about your medical problem, have you not, as you understand it to be? A. I think so, sir. Q. All right. A. I don’t think I forget anything. Q. All right. All right, we will evaluate your testimony along with your medical, what your doctors have said. And we'll issue a decision and you will get a copy. A. Okay. Q. All right, we'll close the hearing at this time. (The hearing closed at ___., August 22, 1980.) CERTIFICATION I have read the foregoing and hereby certify that it is a true and complete transcription of the testimony recorded at the hearing held in the above case before Administrative Law Judge O. T. Denning. Deborah A. Clabaugh DesoraH A. CLABAUGH Transcriber 55 EXHIBIT AC-1 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 %6-74 Palermo Street 121 DeKalb Avenue Holliswood, N.Y. 11423 Brooklyn, N.Y. 11201 11/10/80 TO WHOM IT MAY CONCERN: RE: CARMEN CAMPBELL Mrs. Carmen Campbell has been under my care since Novem- ber 1978 for lumbar disc disease. She underwent lumbar laminectomy in Januray 1979 for removal of a herniated disc. Post Op: She is somewhat improved but still complains of lower back pain, numbness in her hip and pins and needles in her feet and toes. She has limitation of lower back movements and mildly restricted straight leg raising. She weighs over 180 pounds. She is disabled from doing her regular work and should avoid lifting heavy objects and strenuous work. Very truly yours, Reza Khatib, Reza Kuatis, M.D.,P.C. RK:re 56 Supreme Court of the Gnited States No. 81-1983 RICHARD S. SCHWEIKER, SECRETARY OF HEALTH and HuMAN SERVICES, Petitioner, Vv. CARMEN CAMPBELL ORDER ALLowinc CertTiorari. Filed June 21, 1982 The petition herein for a writ of certiorari to the United States Court of Appeals for the Second Circuit is granted. VU. & GOVERNMENT PRINTING OFFice, 1962 376643 1046 vomisodd oe 4 RECEIVED way 28 1982 OFFICE OF THE CLERK a. IN THE SUPREME COURT OF THE UNITED SUPREME COURT, US. OCTOBER TERM, 1981 RICHARD S. SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER CARMEN CAMPBELL, RESPONDENT ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS POR THE SECOND CIRCUIT BRIEF FOR RESPONDENT IN OPPOSITION JOHN C. GRAY, JR., ESQ. RUBEN NAZARIO, Of Counsel JANE GREENGOLD STEVENS, Cf Counsel BROOKLYN LEGAL SERVICES CORP. B 105 Court Street Brooklyn, New York 11201 (212) 855-8003 TOBY GOLICK LEGAL SERVICES FOR THE ELDERLY 132 West 43rd Street New York, New York 10036 (212) 391-0120 Attorneys for Respondent > ae | QUESTION PRESENTED Did the Court of Appeals err in remanding the Social Security disability case of an unrepresented and uneducated claimant, because the Secretary had failed to give the claimant adequate notice and an opportunity to present evidence about her physical and vocational limitations before applying the medical~vocational guidelines? Kee r ~ i eer ne eee ee ee ee OPINIONS BELOW. cc ccc cece c ese eee sees sees eee ese eases sssesssee® JURISDICTION. .cccccccesccseseessscessssenasssasassessessenss STATUTES AND REGULATIONS INVOLVED. ccccceteeeeeeeeserereseeee THR DECISION BELOW DOES NOT INVALIDATE THE SECRETARY'S GRID cc ccccccecscese eS SSS SSS SSSSSS HOST TTSGSSeseessens POINT I! THERE IS NO CONFLICT BETWEEN THE “OURTS OF APPEALS...--ceccesseceseaeseeerrrrneee POINT IIt THIS CASE IS PROCEDURALLY INAPPROPRIATE POR CERTIORARI .cccccccesseeeeeeereeeee CONCLUSION. .cccccccccecsecesessesesesesssasassessssssrssnees APPENDIX Lo cc cc cee eee Se eS SSeS SS SSSOSSSSSSSHSHSHSSSOSOSEOOHO® CITATIONS Cases American Construction Co. V. Jacksonville T & K.R. CO., Cowart v. Schweiker, 662 F.2d 731 (Lith Cir. 1981) Decker v. Harris, 647 F.2d 294 (2a Cir. 1981) Frady v. Harris, 646 F.24 143 (4th Cir. 1981) tft v. Sec of H.H.S., 663 F.2d 315 s r. Hamilton Brown Shoe Co. Vv. Wolf Bros. Co.-, 240 U.S. Kirk, et al. v. , 667 F.24 524 (6th Cir. 1981) Mullane Central v. Hanover, 339 U.S. 306, 314 (1980) Santise v. 5S Nos. #1-1904 et al. (3rd Cir. April s, Torres v. Secretary, No. 81-1606 (let Cir. May 3, 1982) Youngstown Co. v. Sawyer, 343 U.S. 579, 584 (1952) ii DP MAPLE . r ~~ “2 . : ~ ie PRN tata ate 8 Tod a ea ae de Ase: SPER TR te ag : . : ae ae EY ’ t,o a ee, ive ‘c% ead - at -_ 4 . . ee ‘a “a ~ eg ee Ee. >) iz ~~ ee vee 12 17 ll 10 14 14 17 13 10 12, 13 4, 15 17 42 42 42 20 20 20 20 20 20 20 20 20 20 U.S.C. U.8.C. U.S.C. U.S.C. C.F.R. C.P.R. C.F.R. C.F.R. C.F.R. C.F.R. C.F.R. C.F.R. C.P.R. C.F.R. $558 (e) 28 U.S.C. §1254(1) §405 §423 $423 (a) (1) (A) Miscel leanous $404,944 $404.1510 §404.1510(c) §404.1520 $404.1545 $404.1569 Subpart P, Appendix 2 Subpart P, Appendix 2 §200.00(a) Subpart P, Appendix 2 §200.00(b) Subpart P, Appendix 2, Table 2, Rule 202.10 oe ~ ~ ww ewenNnR FY Us NN : ie IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1981 No. 81-1983 RICHARD S. SCHWEIKER, SECRETARY O HEALTH AND HUMAN SERVICES, PETITIONER ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR RESPONDENT IN OPPOSITION OPINIONS BELOW The opinion of the District Court (Petitioner's App. B) is not reported. The opinion of the Court of Appeals for the Second Circuit (Petitioner's App. A) is reported at 665 F.2d 48. JURISDICTION The interlocutory order of the Court of Appeals, which remanded the case to the District Court for further proceedings, was entered on November 30, 1981 (Petitioner's App. E). A petition for rehearing en banc was denied on Pebruary 11, 1982 (Petitioner's App. E). ‘The jurisdiction of the court is invoked under 28 U.S.C. §1254(1). STATUTES AND REGULATIONS INVOLVED The pertinent provisions of the Social Security Act, 42 U.S.C. $§405, 423, and of the reguiations involved (20 C.F.R. $404. 1545; % -l- 7 i ; : j = d ~— ee Se re te it eh am es , - E —™ «© 20 C.F.R. §404.1510 to 404.1569; and 20 C.F.R. Subpart P, App- 2) are reproduced in the petition (Petitioner's App. F). STATEMENT 1. This litigation concerns the eligibility of Carmen Campbell for 23 months of retroactive disability Insurance Benefits ("D.1I.B.") under the Social Security Act ("Act"). The Secretary of Health and Human Services ("Secretary") seeks review of an interlocu- tory order which remanded the case for further proceedings. Ms. Campbell, a former hotel maid with a 6th grade education, filed a claim for D.I.B. in October, 1979. She was 52 years old, and alleged disability on the basis of a back impairment and hypertension. The claim was denied originally, and upon reconsideration, because the Secretary found “that the claimant retains the capacity to perform her past work as a maid” (R. 6).* Ms. Campbell requested a hearing which was held before an Administrative Law Judge ("ALJ") on August 22, 1980. Ms. Campbell appeared pro se (R. $2-127). At the hearing, the ALJ did not explain to Ms. Campbell that if he were to find that she was unable to return to her former work he would then have to decide whether she retained the residual functional capacity to perform lighter work. Nor aia the ALJ explain * References to the record of administrative proceedings, filed with the Court of Appeals, are indicated by n®. to Ms. Campbell the meaning of job categories, such as “light work", as defined in the regulation (R. 52-127). Although Ms. Campbell testified at her hearing that because of her back pain and numbness she could not sit, stand, or walk for “too long” and “could not lift", the ALJ did not ask Ms. Campbell to describe with any specificity how many pounds she could lift or how long she could sit, stand oe walk (R. 44-45). On September 26, 1980, the ALJ issued a decision which found that, due to a severe medical impairment, Ms. Campbell could not return to her former occupation as 4 hotel chambermaid. The ALJ determined that Ms. Campbell retained the capacity for “light work"; was then “closely approaching advanced age"; had a “marginal education® with the ability to communicate in English, which was her second language; and had “unskilled® work experience. On the basis of these findings, the ALJ applied the med. cal-vocational guidelines (Rule 202.10 in Table 2 of 20 C.F.R., Subpart P, Appendix 2) which directed a conclusion that Ms. Campbell was not disabled (Petitioner's App. F, pp. 20a-29a). The ALJ's decision became the final decision of the Secretary upon its adoption by the Appeals Council (Petitioner's App. Ce pp» 16a-192). Ms. Campbell then sought judicial review in the united States District Court for the Eastern District of New York. -—o © On April 20, 1981, a status conference in this case was held before the Hon. Mark Costantino, U.S. District Judge. At this conference, Judge Costantino stated, My personal opinion is that eventually she is gee to be able to prove a disability. There 8 no question in my mind. But you can't do it with this record. And if I were you, I would start a whole new record with this last letter from the doctor and you are in good shape. (Transcript of the District Court Status Conference, page 5.*) On April 29, 1981, the District Court dismissed the complaint (Petitioner's App. B, p. 15a). 2. The Court of Appeals remanded the case to the district court for further proceedings. The Court determined that Ms. Campbell had been deprived of adequate notice of the nature anu demands of the types of jobs which she could allegedly ra 8 and of the opportunity to present evidence about her ability to perform “light work" because “she was not informed of the Secretary's position and the ALJ's findings until she received his decision, when it was too late for her to rebut any finding of available ‘light work’ jobs.” Rehearing en banc was denied by the Court of Appeals on February 11, 19862 (Petitioner's App. E). Ms. Campbell, still insured under the Act, filed « secon4 D.I.B. application in February, 1981. After a hearing on this “—~A & application, the Secretary detecmined that Ms. Campbell is in fact mot capable of performing aither her past relevant work or any other substantial gainful activity (Respondent's App. A, pp. le~4a). Part of this case is now moot, as the only issue remaining is Ms. Campbell's entitlement to retroactive benefits. 3. The Social Security Act explicitly provides that in determining whether an individual is disabled, the Secretary must consider not only the individual’s medical condition, but also his potential for employment. A claimant. is to be adjuged disabled if his physical or mental condition is 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 econom, 42 U.S.C. §423(4) (1) (ea). ‘The Secretary has promulgated regulations which es:ablish a sequential process for the evaluation of disability. 20 C.F.R. §404.1520 et seq. If the claimant is not engaging in substantial gainful activity, and cannot return to his relevant past occupation due to an impairment which is not 30 severe as to qualify him for disability on medical considerations alone, the Secretary implements the last stage of the sequential process. The Secretary makes findings of fact with respect to the four factors relevant to the determination of disability, that is, the vocational factors (age, e@uecation, and work experience) and the residual functional capacity (the heaviest type of work which the claimant can perform despite his ee Te impairments). once the Secretary has made these findings about the claimant's characteristics, he looks for a corresponding rule in the tables, or matrix of the four factors, found in 20 C.F.R., Subpart P, Appendix 2 ("grid" or "guidelines"). The rules take administrative notice of the existence of jobs in the economy for an individsel who matches the four findings of fact previously made. Where fully cable, the rules mandate 4 conclusion of disability or no dis- appli ability. ARGUMENT POINT I THE DECISION BELOW DOES NOT INVALIDATE THE SECRETARY'S GRID Contrary to the broad assertions of the Petitioner, the issue in this case is very narrow, and is not worthy of review by this Court. The petitiomer Secretary misrepresents the decision below when he suggests that the decision invalidates the Secretary's "“medical- vocational” gui@elines cr grid and therefore raises quections about the whelle disability decision-making process. It does no such thing. The decision merely clarifies one aspect of the application of the guidelines elready in place in the Secretary's own regulations: it simply restates the requirement that claimants must be informed of every finding of the Secretary that is used in the application of the i ‘ ~ “y Ps . wm > i . a ‘ grid so that the claimant will have « meaningful opportunity to rebut those findings. ag In order to use the grid to determine the outcome of a particular case, an ALJ must determine the claimant's age, work seguetanein educational level, and residual functional capacity, i.e., the level of work that the claimant can perform despite his impairments. This last criterionis framed in terms of four job categories requiring different exertional capacities. Before applying the grid, the Secretary must determine whether the claimant's maximum sustained work capability is limited to sedentary, light, medium, or heavy work. Each of these categories is precisely defined in the regulations. For example, to be found able to perform light work, an individual must be able to lift 20 pounds maximum with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be only a negligible amount, a job is in this category when it requires walking or standing to 4 significant degree, or when it involves sitting most of the time with a degree of pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, an individual must be capable of performing substantially all the foregoing activities. 20 C.P.R. §404.1510(c). The regulations embody the Secretary's administrative notice of jobs existing in the national economy which can be performed by individuals with capabilities in each of the four work categories. 26 C.F.R., Subpart P, Appendix 2 §200.00(b). The Secretary's own regulations already contain the require- ment that the Secretary afford the disability claimant the opportunity to rebut all the findings of fact which form the basis for the applica- tion of the guidelines: Where the ‘indi. of fact made with respect to a particular - vidual's vocational factors and residual capacity coincide with all the criteria of a particular rule, the rule will direct a conclusion as to whether the individual is dis- abled. However, each of these find s of fact is sub Sear es resent ev reftu s 8s. 20 C.F.R. Subpart P, Appendix 2 §200.00(a). (emphasis added). The decision tate merely reiterates this requirement. In a case such as this, where the claimant has established her inability to resume her former work, the claimant's ability to perform alternative work becomes determinative. The ALJ must give the claimant a meaningful opportunity to explain why she cannot do lighter types of work, if this is the case. Here, the ALJ tailed to explain to Ms. Campbell that her levels of tolerance for exertional activities were relevant and that she could (and should) present testimonial and other evidence on the precise issues of her ability to lift ten pounds, sit for certain hours, and the like. Thus, Ms. Campbell was effectively deprived of the opportunity tc refute the finding that she could do “light work" because the AlJ never told her what “light work" means, either in terms of her alleged exertional capacity, or in terms of the jobs that she could allegedly perform. This error was especially prejudicial to Ms. Campbell because neither the initial decision, nor tie decision after reconsideration mentioned as a reason for denying benefits that Ms. Campbell could perform "light" work. She thus had no notice of the decisive issue at her hearing. It was this error, the ALJ‘s failure to give notice of the job categories or types of jobs for which he found that the claimant had the saniaeis capacity, on which the Court of Appeals focussed its attention: 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 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 guide- lines. The Court is only making the Secretary's own regulation practicable. Unless the Secretary explains to the claimant, at the hearing, the elements relevant to the determination of residual functional capacity, i.e., the nature and demands of the jobs in the category for which the claimant may retain the physical capacity, the Secretary's own regulation, which requires an opportunity to refute this finding, will be empty of meaning. The right to rebut necessarily implies knowledge of the facts subject to rebuttal. All the decision requires is that the ALJ give some examples of jobs included in the relevant work category. This listing of jobs is not suggested as an evidentiary requirement necessarily applicable to each case, but merely as a meaningful way of informing uneducated, pro se claimants of the definition of job categories. The recitation eis oan of jobs is meant only as an expianation of the critical factor of residual capacity, that is, the icine category of work which the claimant can perform. By admonishing the Secretary to give examples of specific jobs in the categories, the court pe merely proposing a "notice . . . of such nature as reasonable to convey the required | information." Mullane Central v. Hanover, 339 U.S. 306, 314 (1980). Contrary to the Secretary's assertion, the Court of Appeals in no way requires him to produce vocational experts at disability hearings. As the court stated in Decker v. Harris, 647 F.2d 294, 298 (24 Cir. 1981): if the Secretary chooses to proceed without expert testimony by taking administrative — notice, the Secretary must provide a similar Gegree of specificity to achieve the under- lying objective of procedural fairness. . .- The decision does not require the ALJ to prove that a particular claimant is able to do a particular jup, but merely to give any examples of jobs in the ca*egory as a way of ensuring that the claimant understands what the category means. It is clear that the Court of Appeals conceived the recital of job examples as a simple -10- ~ et nF TELE Phaze Saat te eR eS Ser ee re 4 oP as SRN EE. ti aie. 5 Sa verte et eae eee ae . nd SaPE Se 08, a aS es SIDE Ps a + BD Oe = Se ais bee ns mete eee he Ae ea AES Fy aS eS ee ae a m te cue . ; (eee BAL. -s=- cai Scobie eaten sp wink tae SAMA eepndelsdhinte of the job categories. However, he asserts that “a claimant does have explicit notice of the relevant requirements" because those requirements are defined in the regulations (Petitioner‘’s brief at 15). The proposition that pro se claimants have explicit notice of technically defined requirements because they are buried somewhere in the 320 pages of regulations which govern the disability process is simply preposterous. Moreover, the Secretary's own regulations, 20 C.F.R. §404.944, impose upon the ALJ the duty to ask all questions relevant to presen- tation of the case. Particularly when the claimant is unrepresented, the ALJ must insure thet a full and fair record is developed. £.9.-, Cowart v. Schweiker. 662 F.24 731 (Lith Cir. 1981). This duty to ae: a full record means that the ALJ cannot leave the claimant adrift with complicated regulations, but must elicit all the testimony concerning the vocational and physical capacities relevant to the application of the grid. If any general rule can be inferred from the decision at issue here, it is that the Secretary must comply with his own require- ment that claimant be given meaningful notice of all the factors that ere relevest in applying the rid. Clearly this decision raises no = important or novel question of federal law, and will not disrupt the THERE IS NO CONFLICT BETWEEN THE COURTS OF APPEALS Petitioner erroneously asserts that the decision of the Court of Appeals invalidates the grid regulations and that, therefore, it is in conflict with every other circuit which has considered the issue. This is not true. The decision below does not, either explicitly or implicitly, invalidate the grid; it is consistent with the decisions cited by the Secretary in approving proper use of the grid. It differs from these decisions only in that it addresses an issue not confronted in these other cases, namely the type of notice and opportunity to present evidence which the Secretary's own regula- tions require. In all the cases cited by the Secretary, the central issue was whether the grid was a valid decision-making tool even though it dispensed with the need for individualized proof that a specific Claimant could perform a specific job. As in Campbell, the courts upheld the grid, finding individual proof unnecessary. Tne need for such proof is not the issue here; rather the issue ‘s notice: what the ALJ must do to adequately inform the claimant of the determinations to be made before the grid is applied. In his petition, the Secretary quotes at length from Santise 7.) vw. Schweiker, Nos. 81-1904, et al. (3rd Cir. April 8, 1982) (slip op. 24) although this case did not address at all the notice issue. Santise considered whether the Secretary was required to prove, through vocationai testimony, the existence of specific jobs suitable for a claimant of certain characteristics. The court in Santise assumed, without discussion, that the determination about the claimant's factors or characteristics were proper, and thus the court did not discuss the type of notice about those characteristics, and the opportunity to present evidence and to rebut the findings concerning those characteristics, which the Secretary must give the claimants. The holding of Santise, that the Secretary may take administrative notice of the existence of jobs for a claimant of certain, determined characteristics, is fully compatible with the holding of Campbell. Although the notice issue was not expressly considered in Kirk, et al. v. Secretary, 667 F.2d 524 (6th Cir. 1981), the decision is instructive. The court affirmed the use of the grid expressly because in its implementation {eJach appellant was given the opportunity to challenge the four factual findings that make up the grid - age, work experience, physical ability and education. Only the conclusion of the existence of . . . work is mandated. The guidelines spans Stonbig e every charac- teristic to fully satisfied... Appellants here cannot be said to complain of the opportunity to present evidence .. - 667 F.2d at 534. This statement clearly suggests that the Sixth Circuit, like the Second, was concerned that use of the grid did not deprive claimants of notice of the issues or an opportunity to -13- Se ee, Sere a rrr tn it PE OT ee rr PE ER Se te a te: es eo ‘ . ign . ’ fg® they gS ‘ & , => * _ : * whe a ‘af a of capacity of job category. ii ee eel ltC—“‘ “SR POINT III THIS CASE IS PROCEDURALLY INAPPROPRIATE POR CERTIORARI The procedural status of this case makes certiorari particularly inappropriate. First, as a result of a subsequent application by Ms. seainitiie the case is moot except for respondent's right to 23 months of back benefits. Second, the decision of the Court of Appeals is only an interlocutory order remanding the case for further proceedings, and therefore this case is not ripe for review. Ms. Campbell filed a new application for D.1I.B. on February 9, 1981. ‘The application was denied initially and upon reconsideration, and Ms. Campbell requested a hearing. The hearing was held before an ALJ on March 17, 1982. Due to the pendency of the instant proceeding, Ms. Campbell agreed, at her hearing, to change the date of onset of disability alleged in her application to January 1, 1981. On April 28, 1982, the ALJ issued a decision finding that since at least January 1, 1981 Ms. Campbell is not only unable to perform her past work but incapable of performing any substantial gainful activity (App. A, attached hereto). This decision has partially mooted this case. ‘The only issue now before the court is Ms. Campbell's entitlement to retroactive D.I.B. from the onset date alleged on her first application, December 1, 0 ete ee ne * " ~ i. : J = > Batre ~ . E . = a ees Ra i a aa ’ 5 ae tht TRAP er > Bae, Mads MANE Re ep o_o Sots ucead Gnbd oi actahdeenk a6 Gly chanel dae qhe Court of Appeals’ order which the Secretary would have this court review, is an interlocutory, pelidtikas cGie wtih vemendes the case to the district court for further proceedings (Petitioner's App. EB). This lack of finality is of itself sufficient ground for Genial of the petition. See, Youngstown Co. v. Sawyer, 343 U.S. 579, 584 (1952); Hamilton Brown Shoe Co. v. Wolf Bros. Co., 240 U.S. 251, 258 (1915). In the absence of some exceptional reason, this court should not grant certiorari to review a nonfinal judgment, such as one remanding the case to the district court. See, American Construction Co. v. Jacksonville T. & K.R. Co., 148 U.S. 372, 384 (1892). This case does not raise any issue of importance which would justify abandoning the practice of denying certiorari of non- final judgments. CONCTUS TON The petition for a writ of certiorari should be denied. Name ad Addons of Clava * Carmen Canpbe 79 Lorraine Street Brooklyn, New York 11231 .. with sic ‘you have the right to request the Appeals Councit to : rom date of of the notice of this decision. It will be ra ee ee social security office or at the hearing office, or you may write or telephone | offices indicating your intent to request review: Low may Sto cameals, SSA. ten request for review directly to and Appeals, SSA, « The Appeals Council may,on its own motion, within 60 days from the date shown below, . review the decision, we 68 any prod. ho Angele Coane omy nay ot reopen ad new revise or made as to the amount of the benefits or where there is an error as to the decision on the face of the evidence on which it is based. (20 CFR 404.988 and 416.1488; 42 CFR 405.750 and 405.1570). if the Appeals Council decides to review the enclosed decision on its own motion Unless you timely request review by the Appeals Council or Council reviews the decision on its own initiative, may not obtain a court review of your case (section 205(9). 163 1(cH3), or 186: of the Social Security Act}. This notice and enclosed copy of i decision mailed apréi-_28,_3982— * geben Nazario 105 Court street Brooklyn, Hew York 11201 DECISION é % oT ae | ot +«@ ; , =? nthecosoet Claim ter Period of Disebilety ond ie r Disebility Insurance Benetity Klement) = 093-40.%689__ {Wage Lerner} leove biont | some oF obowe! (Sex 10! Security Murnizer) This cose is before me upon o timely request for hearing filed by the cloimont, who is dissatisfied with the de- termination disallowing on opplication for o period of disability ond tor disability insurance benefits under sections 2161) ond 223, respectively, of the Sociol Security Act (42 U.S.C. 464i} ond 423). in view of my conclusion, which is wholly fovorable to the cloimant, recitotion of the evidence is unnecessary. After coretul consideration of all the evidence of record, | find thot the disability earnings requirements ore met, ond that beginning on 1=1.81 the cloimant g@os under a “disability” os thot term is defined in the Sociol Security Act, ond thot such disobility hos continued vp to ond through the date of this decision, 0 ren Palo 6. Up Ssw@e ie the decision of the’ undeisignad thet" the cloimeni, beséd on the epplication filed 0n.2-6-$3— . is entitled to o penod of disability, commencing on—lala&l — Lond to disobility insuronce benetits under sections 21611) ond 723, rexpectively, of the Sociol Security Ac. Claimant stipulates to an onset date of January 1, 1981 on the curre&* application, a as S7ee _ Z f WH , 7 7 3 Do: April 28, 1982. : ae (00 ee | : foe . * * > ~ ° a tw ' : * - -* * : -_ —- _— ——— oo - -_- - ——_— ”_— = ”_—— -— ~~ - - ~- - - Bug . ' e 7 4 , ~~, 2; Y~ id . a* 7 > a . . ; ‘ oie ae | “e . oe . . . ° . - *. * > . . a > >. . , ad . » . a. 4 ‘ s * e e. . Appendix A, Page 2-A- tome nat 5 i —— 2. ew aes be! > agentes - + Soe ad Pg PST : . v eee. — * 5 »* ert: : a! Sara “* : at" yar ene nO. OF os c+. 1 Application for Disability Insuresce Benefits, été. 4 2/9/81 2 D dlity Detereinations end Transeittal, dtd 2 s/ie/a1 F , 5 Request for Reconsideration, dtc 4/28/81 1 4 Disability Detersination and Tranenittal, dté 5 6/21/81 F 5 Social Security Notice of Reconsideration, dtd 5 P 6/26/81 6 Request for Hearing, dtd 20/23/81 » | 7 Earnings Record, été 2/21/81 i 8 Vocational Report, dtd 3/14/81 e S| Disability Report, dtd 2/9/81 8 10 Reconsideration Disebility Report, até 4/28/81 6 11 Claimant's Statement whes request for Searing, atd i 10/13/é2 12 Veorkers’ Compensetion Board, 4té 5/73 © 13 Medical Report fro= Ashek Khanna, 4.D. ata 4/61 14 Medical Recerds from Long Ielaend College Hospitel, 2 até 6/9/81 15 Medical Report fro= Milton Lowenthel, M.D. ata $s 2/25/81 16 Consultative examination report from Semir K. Butta, 5 M.D. até 3/4/81 17 Statement of Residuel Functional Capacity, dtd i 3/17/81 18 Medical Records from Mobile Health Care, 4té % 5/29/81 19 Medical Report from Robert Leserus, M.D. ad LE gt ee 1j20{/81 — - For HA-$40-UB(} HA $40 PRIOR EDITIONS MAY ATTACH TO REPRESENTATIVES COPY OF THE DECISION po oe Le » . > . S| i (age ane Caer ara Tie HV Gas & name | ap toes Oo OF 20 Medical Report from Milton Lowenthel, M.D. ; dated 8/14/80 , 3 21 Medical Report from Reza Khatib, M.D., dated 11/10/80 22 Medical Report from Haydn Briggs, M.D., dated A 2/11/82 ; 3 23 Medical Report from Reza Khatib, M.D., dated 3/15/82 | 3 24 Medical Report from Union Pamily Medical Pund of the Hotel Industry of New York City, dated 2/25/82 | 10 Semon eurtie at Le remniy s Sa a, eee ewe oe —_— > —-— x . RICHARD 8S. SCHWEIKER, Secretary of the Department of Health and No. 81-1983 Buman Services, : e , Petitioner, APF IDAY ICE ve. ' CARMEN CAMPBELL, ; Respondent. - -—_— aan ~x STATE OF WEW YORF ) t S8.: COUNTY OF KINGS ) I, RUBEN NAZARIO, being duly sworn, depose and say that I am not a party to the action, I am over 18 years of age and I am | employed by Brooklyn Legal Services Corporation B, 105 Court Street, Brooklyn, New York 11201. That on the 27th day of May, 1982, I served the within APPEARANCE FORM, MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS, and BRIEF IN OPPOSITION TO THE PETITION on each addressee listed below, being the address designated by said addressee for that purpose, by depositing a true copy of same, enclosed in a postpaid properly addressed wrapper, in 4 depository under the exclusive care and custody of the United States Postal Service, addressed t»: Office of the U.S. Solicitor General Department of Justice, Room 5614 Pennsylvania Avenue at 10th Street Washington, D.C. 20530 Attention: John H. Garvey i Assistant to the Solicitor General ye ~ ia Sworn to before me this 27th day of May, 1982 ~ coe Vi r a a: * > % “as =) > Sees le ee ee, ee RECEIVED $ MAY 2 8 1982 SUPREME COURT OF THE UNITED STATES SPR cn Em - . siemet L r «x ‘ a ata as ih AP ana Mere + on ¢. gas hy, Ser 7 oe. . - ? ine ol oo nel y ¥5 Push ag Ne 5 ge z : a a; > | pig 2 %, e Dp . ee eee SO ae eae? et eT Saae Cee Le ae ee eet eee op. Za de pst Nd . “ ad a SA heey - - ad : : + ° ots : & “¥ P * . : oa. 1. Are you now employed [ J¥es [No [ ] Am self-employed. as Wak. 2. Kame and address of employer: N/A : si 3. IF YES, how much do you | : . IF NO, give month and year of last earn per sonth $ ‘W/A* employment. | ; « 6 = 4 If married is your Spouse employed? [ )Yes oe x : . 5. IF YES, how much does your Spouse IF a minor under age 21, what is - . @arn per month $ : your parents or guardians approximate income § a 6. Have you received sess dic aces 12 cada ausse lie ea or other form of self-employment, or in the forms of rent payments, interest, . . ee ee Pee en ee Yeo 19 wet) “4 _ > . *. . a . A ay ) ir . PR a No. f, Heaeds ornF Umer, | OSTANTING T pat. AFFIDAVIT OF CALM Carn? BE Le . a, tie re ie eed eae Aare OT is EES ot MES les viet d yruliidl SK ™ *. “S aos 2 sud ; ; 4 a I, the above-nased affiant, being duly sworn according to law depose and say “ae yt aa ; I os then ts // in the above-entitled proceeding; that I as a - Ly ef the United States; that I am unable to pay the costs of said proceeding 8» ss tes > =} te give security therefor: that I believe I am entitled to redress; and that Sia 4 ~~. r patere of ay { ection is briefly stated as follows: . Aas | >. ete GS eecrr "7 Deon S34 aghte ee > . a af ri . iD: = Po he et So en = J | yA a 5. Sworn to end subscribed before ne this “7 day of “7.19%. pas . = xe = OADER OF COURT | - & : coding be “ - ? oc "a? Tt is Ordered that the fPabll in ber above-entitied pr iog ah a0 he hereby is persitted to [(Promia stl . seid proceeding to conclusion ; ithout prepayeent of fees or costs or security A TOY e 4 i : Ye . ‘55 Ney a eee = ee eee *. : earn month 76. 7 ‘harried is your Spouse employed? ( )Yes es, how much Goes your Spouse IF a minor under age 21, 1 earn per month $ your parents or tA approximate income § f you received within the past 12 months any income from a business, rofession or other form of self-employment, or in the forms of rent : rest, dividends, retirement or annuity payments, or other sources? | y Yes( ) ¢ + Cees lee Ags gg ae Received Sources : “YES, GIVE THE AMOUNT $ ABCETVED & IDENTIFY SOURCES you any cash on hand or money in saving or checking account? ves( i ic YES, state total amount §$ ‘ oe you own any real estate, stocks, bonds, notes, automobiles, or other : ms wuable property (excluding ordinary household furnishing and clothing}? Value Sources YES, give value and $ * @eecr it. ital status Total number dependents: List soon you * single a "harried t cee ae Widowed > - or : vorced . Creditors Total Debt $ | | s : oo ; 7 mf 5 $ men $ $ by certify the WG: A FALSE OR DISHONEST ANSWER TO A QUESTION OW THIS AFFIDAVIT HAY , ' PUNISHABLE BY FINKE OR IMPRISONPENT, On BOTH. wo eee ie es 7 i Tes jaug Noy g audited Office - Supreme Court, U.S. FILED Jun 14 1962 ALEXANDER L. STEVAS., Ste No. 81-1983 Iu the Supreme Court of the Hnited States OcTOBER TERM, 1981 RICHARD S. SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER V. CARMEN CAMPBELL ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT REPLY BRIEF FOR THE PETITIONER Rex E. Lee Solicitor General Department of Justice Washington, D.C. 20530 (202) 633-2217 TABLE OF AUTHORITIES Cases: Broz v. Schweiker, Nos. 81-7140 et al. Se, SE Os CE wacnddeddeeesecee Califano v. Sanders, 430 U.S.99 .......... Campbell v. Secretary of HHS, CPOE ED ahpcduddbeksdcachccceseses Decker v. Harris, 647 F.2d 291 ........... Estelle v. Gamble, 429 U.S.97 ..........4. Geoffroy v. Secretary of HHS, PIE s6busevhedKéoeddueusé seed Mack v. Schweiker, No. 81-6166 ee, Ce cnc ues edbhonswes Noel v. Schweiker, Nos. 81-6156 et al. er es SE DED 6 0'ce nVbbadccaseces Peryea v. Schweiker, No. 81-6158 Ss Ey Ss HEED osc dechineccdseces Richardson v. Perales, 402 U.S. 389 ....... Rodriguez v. Secretary of HHS, No. 81-1610 (Ist Cir. Apr. 2, 1982) ........ Santise v. Schweiker, Nos. 81-1904 et al. GO Cae. Ge. &, TOG: co vtisn cccnccccccecs Torres v. Secretary of HHS, No. 81-1606 SOR Gel - E,, DEED: 0 Knee cemkccedceces United States v. General Motors Corp., BAP DSFTD ccccsevccccccsnccvssscccves Iu the Supreme Court of the Hnited States OCTOBER TERM, 1981 No. 81-1983 RICHARD S. SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER Vv. CARMEN CAMPBELL ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT REPLY BRIEF FOR THE PETITIONER 1. Respondent argues (Br. in Opp. 6-11) that the Second Circuit’s decision in this case does not invalidate the medical-vocational regulations, 20 C.F.R. Part 404, Sub- part P, as a basis for making disability determinations. As we show below, this assertion is incorrect. Moreover, deci- sions by the First and the Eleventh Circuits since the filing of the petition both demonstrate the inaccuracy of respond- ent’s assertion and compound the conflict among the cir- cuits regarding the validity of the regulations. In Torres v. Secretary of HHS, No. 81-1606 (Ist Cir. May 3, 1982), the First Circuit reaffirmed its earlier support for the validity of disability decisions based on the regula- tions. See Rodriguez v. Secretary of HHS, No. 81-1610 (ist Cir. Apr. 2, 1982); Geoffroy v. Secretary of HHS. 663 F. 2d 315, 318-319 (Ist Cir. 1981). In Torres, the court held 2 that “{[wJhere the Medical-Vocational Guidelines purport to require a finding of ‘not disabled’ , the ALJ need not name specific jobs that the claimant could perform.” Slip op. 4. The court went on to say (ibid.): “We recognize that our holding here is contrary to that of the Second Circuit. Decker v. Harris, 647 F. 2d 291 (2d Cir., 1981); Campbell v. Secretary of HHS, No. 81-6108, slip op. (2d Cir., Nov. 30, 1981).” In Broz v. Schweiker, Nos. 81-7140 et al. (11th Cir. June 7, 1982), the Eleventh Circuit held that “the regulations as they have been applied are invalid because they conclusively determine the effect of age on disability * * *.” Slip op. 1484. On the other hand, the court upheld the regulations in other respects and explicitly stated its disagreement with the Second Circuit about the Secretary’s authority to take administrative notice of the existence of work in the national economy for persons described in the guidelines. Id. at 1491-1492 & n.12. 2. Respondent mistakenly contends that the court of appeals’ decision in this case does not invalidate the medical-vocational guidelines. Rather, she argues, the court’s requirement that the Secretary give specific exam- ples of the nature and demands of jobs that exist in the national economy is intended simply “as an explanation of the critical factor of residual capacity” for “uneducated, pro se claimants” (Br. in Opp. 9-10). Moreover, she asserts, “the Court of Appeals in no way requires [the Secretary] to produce vocational experts at disability hearings” (id. at 10). These contentions are not supported by the decision below. a. The court of appeals’ opinion belies any notion that the court intended simply to give pro se claimants “an explanation of * * * residual capacity.” Before it proceeded to hold the regulations invalid, the court itself stated that 3 that was not an issue before it: “The record as a whole supports the ALJ's finding that Ms. Campbell had the ‘residual functional capacity’ to perform ‘light work’ ”(Pet. App. 7a). The court then added, quoting its earlier decision in Decker v. Harris, 647 F. 2d 291, 298 (2d Cir. 1981), that “ {t]he key consideration * * * must be that the claimant be given adequate opportunity fo challenge the suitability or availability of the jobs noticed ”(Pet. App. 10a) (emphasis added). The very purpose of the regulations, however, is to eliminate those issues from disability adjudications in cases where the claimant's relevant medical and vocational char- acteristics are accurately described in the guidelines. The prior practice of relying on the judgments of administrative law judges and the testimony of vocational! experts in each case produced inconsistency in the adjudication of hundreds of thousands of claims for disability benefits each year. The Second Circuit’s decision unquestionably reinstates that practice.! b. The court of appeals did not expressly hold that in future disability hearings vocational experts will be required to testify about the existence of specific jobs that the claim- ant can perform. The court recognized, however, that the demands it was making on the adjudicatory system had “[{iJn the past, * * * been [satisfied] largely through the use of vocational testimony to establish that there are specific jobs suitable to the claimant's capabilities” (Pet. App. 9a), and it gave no reason to believe that the task could be ‘Respondent asserts (Br. in Opp. 11) that the requirement of notice of specific jobs existing in the national economy merely implements the Secretary's own regulation, 20 C.F.R. 404.944, which requires the administrative law judge to “look{] fully into the issues.” That regula- tion is nowhere mentioned by the court of appeals, and of course it does not apply to issues already determined by rulemaking and not open to adjudication. 4 performed differently in the future. The First Circuit in Torres v. Secretary of HHS, supra, slip op. 4, realized that “[i]f we were to require an ALJ to name particular jobs in such cases, we would force him to rely upon a vocational expert's testimony * * *.” The Third and Eleventh Circuits have understood the decision in Campbell to have precisely the same effect. Santise v. Schweiker, Nos. 81-1904 et al. (3d Cir. Apr. 8, 1982), slip op. 26-27 & n.25; Broz v. Schweiker, supra, slip op. 1491 & n.12. Indeed, the Second Circuit itself, subsequent to Campbell, has interpreted its rule in the same way. In Noel v. Schweiker, Nos. 81-6156 et al. (2d Cir. Feb. 22, 1982) (unpublished), the court stated: “This circuit recently examined the conflict between [the medical-vocational] guidelines and prior case law and resolved that conflict adversely to the Secretary in Camp- bell v. Secretary of HHS” (slip op. 1-2). After reviewing the evidence at the administrative hearings, the court remanded for further proceedings, stating (slip op. 5) (emphasis added): At none of the above hearings was there any festi- mony indicating the specific jobs that were suitable to the respective claimants’ capabilities. It follows, there- fore, that contrary to Campbell, supra, claimants were not given a chance to rebut any finding by the Secre- tary of suitable available alternative jobs.{?] 2The record in Noe/ contradicts respondent's suggestion that the Second Circuit's decision in Campbell was a mere procedural device intended to assist “uneducated, pro se claimants” (Br. in Opp. 9). Two of the three claimants in Noe/ and its consolidated cases were repres- ented by counsel at the hearing before the administrative law judge. Noel v. Schweiker, No. 81-6156 (2d Cir. Feb. 22, 1982), R. 26; Mack v. Schweiker, No. 81-6166 (2d Cir. Feb. 22, 1982), R. 41. See also Peryea v. Schweiker, No. 81-6158 (2d Cir. Feb. 22, 1982), R. 37. (“R.” refers to the administrative record in each case, filed with the court of appeals.) On the panel in Noel were Chief Judge Feinberg, the author of the opinion in Decker v. Harris, supra, 647 F.2d at 292, and Judge 5 3. Respondent also argues that notice of specific jobs underlying the published guidelines in Appendix 2, 20 C.F.R. Part 404, Subpart P, would have cured the prejudice she allegedly suffered before the administrative law judge, since she “had no notice of the decisive issue at her hearing” (Br. in Opp. 9). This contention is also without merit. The administrative law judge began the hearing by stating (R. 25): I will be taking evidence as to the severity and expected duration of your impairments, * * * and whether you have the residual capacity to perform other types of work taking into account your age, education and work history. There is a lot of instances that we can take in evidence on your residual functional capacity to engage in sedentary, light, medium, or heavy work. This essentially, what we're taking into account, your ability to walk, stand, sit, lift, push, pull or carry. I will take evidence and consider any mental, skin, sensory or environmental impairment that might limit your capacity to work. Respondent testified to the circumstances of her injury (R. 41-42), the nature of her treatment (R. 43-51), and her efforts to work following her injury and operation (R. 38-40). She also introduced six exhibits bearing on the classification of her residual functional capacity, including a physical capacities evaluation form completed by her doctor which stated that respondent could not lift the weight necessary for performance of light work (R. 114). The administrative law judge’s conclusion that other evi- dence supported her ability to do light work (Pet. App. Lumbard, who joined the opinion in Campbell. We have provided counsel for respondent with a copy of the Noe/ opinion and have lodged a copy with the Clerk of this Court. 6 23a-27a) was, however, upheld by the appeals council (id. at 17a-18a), the district court (id. at 14a), and the court of appeals (id. at 7a). 4. Contrary to respondent’s assertion, review of the court of appeals’ decision remanding this case to the agency is appropriate given the clear conflict in the circuits, the obvious importance of the regulations to the operation of the disability program, and the finality of the Second Cir- cuit’s determination that the regulations are invalid. Estelle v. Gamble, 429 U.S. 97 (1976); Richardson v. Perales, 402 U.S. 389, 398 (1971); United States v. General Motors Corp., 323 U.S. 373, 374 (1945). No further factual devel- opment is necessary for a proper presentation of the impor- tant legal issue presented, and a decision by this Court reversing the judgment of the court of appeals will termi- nate this litigation. For the foregoing reasons and those presented in our petition, it is respectfully submitted that the petition for a writ of certiorari should be granted. Rex E. Lee Solicitor General JuNE 1982 3Respondent's suggestion that this case is “partially mooted” (Br. in Opp. 16) is completely lacking in substance. The original administrative decision that led to this litigation was limited to respondent's entitle- ment to benefits as of that date. The subsequent administrative decision of April 28, 1982, finding respondent disabled on the basis of a change in her condition, had no effect on her right to benefits through December 31, 1980 (see Pet. App. 16a). See 42 U.S.C. 405(h); 20 C.F.R. 404.957(c\(1); Califano v. Sanders, 430 U.S. 99 (1977). DOJ-1982-06 aug s auoniag Office - Supreme Court, 11.5. FILED SEP 23 1982 ALEXANOER L. STEVAS. In the Supreme Court of the OCTOBER TERM, 1982 RICHARD S. SCHWEIKER, SECRETARY OF HEALTH and HUMAN SERVICES, PETITIONER Vv. CARMEN CAMPBELL ON WRIT OF CERTIORAR! TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR THE PETITIONER Rex E. LEE Solicitor General J. PAUL MCGRATH Assistant Attorney General KENNETH 8. GELLER Deputy Solicitor General JOHN H. GARVEY Assistant to the Solicitor General RoBERT S. GREENSPAN ANNE BUXTON SOBOL Attorneys Department of Justice Washington, D.C. 20530 (202) 633-2217 QUESTION PRESENTED Whether the Secretary of Health and Human Ser- vices in appropriate cases may rely upon published medical-vocational guidelines, rather than testimony of vocational experts, to determine the existence of substantial gainful work in the national economy for disability claimants under the Social Security Act. (1) TABLE OF CONTENTS Statute and regulations involved 0.000000. TE OORT ETS Net a TE OA aT DoE: Argument: The medical-vocational regulations are a lawful exercise of the Secretary’s rulemaking author- ity under the Social Security Act 0.000000... I. The medical-vocational regulations implement II. ITI. RI ET IEEE ccivctsustibiitstiothistiopaiee the authority delegated to the Secretary by IRENA i lr RE ae ey OO een Se A. The regulations carry out explicit delega- tions of statutory authority in connection with the disability programs .......................... B. Congress urged the adoption of, and has im- plicitly ratified, the regulations ................... The medical-vocational regulations provide a uniform, accurate, and efficient means for mak- ing disability determinations .............0...0000.0...... The medical-vocational Pesca are proce- STS A. The guidelines provide for individualized consideration of all facts unique to each claimant’s case ........ ivtatllhitialieiadaligieii ih B. A claimant need not be given notice and an opportunity to challenge the suitability and availability of the jobs underlying the 10 13 13 13 47 la IV TABLE OF AUTHORITIES Cases: Page Apex Hosiery Co. v. Leader, 310 US. 469 .............. 28 Batterton Vv. Francis, 482 U.S. 416 _........................ 17, 28 Board of Governors of the Federal Reserve System v. First Lincolnwood Corp., 439 U.S. 248 ............ 27 Breauz V. Finch, 421 F.2d 687 ............-....----.-..0----- 44 Broz Vv. Schweiker, 677 F.2d 1851 .......................-.... 17, 42 Burnam V. Schweiker, 682 F.2d 456 ........................ 40 Califano v. Sanders, 480 U.S. 99 ...........-.....2-0....-00 3,8 Cannon V. Harris, 651 F.2d 513 —...............---.....0000 40 Cummins Vv. Schweiker, 670 F.2d 81 ........ 17, 34, 37, 43, 46 Decker Vv. Harris, 647 F.2d 291 ........................ 9, 37, 41, 43 Dobrowolsky v. Califano, 606 F.2d 403 .................. 33 Dodgins v. Schweiker, 681 F.2d 818 -....................... 38 Frady Vv. Harris, 646 F.2d 148 ~...........-.....---0--.20--- 17 Gagnon V. Secretary of Health and Human Serv- ices, 666 F.2d 662 _................ 40 Fiaky C. BOG Ge CD ccricisidststictisintnecitennes 28 Herweg V. Ray, No. 80-60 (Feb. 23, 1982) ............ 17 Kerner v. Flemming, 283 F.2d 916 .......................... 4 Kirk v. Secretary of Health and Human Services, 667 F.2d 524, petition for cert. pending, No. 81- 6754 (filed May 20, 1982) -.............................. 17, 32, 34 Massachusetts Board of Retirement v. Murgia, Ge NE ATE ccrncenchitiithndernsinsinnintibinaieietiia tauidbbiasihiehiaatiash 32 McClenny V. Harris, 681 F.2d 814 ............................ 40 l McCoy V. Schweiker, 683 F.2d 1188 00.0... 14486 °7) Noel v. Schweiker, No. 81-6156 (2d Cir. Feb. 22, SO ccitacsitialkelcl incepta ils cia aai dae esas 10 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367.. 27 Rivers v. Schweiker, No. 81-1418 (5th Cir. Sept. Tis PUNUEE cininicnnsentilibciseniapiaiaimasaatiantiinicelGauideabasealabidabeaigid 17 Roberts v. Schweiker, 667 F.2d 1148 _.................... 40 Santise v. Schweiker, 676 F.2d 925, petition for cert. pending, No. 82-5276 (filed Oct. 18, 1982).. 3,17, 33 Saxbe Vv. Bustos, 419 U.S. 66 -............-2.-c2c0-eccceeeceeees 27 Schweiker v. Gray Panthers, 458 U.S. 864 ............ 10, 16, 47 Sherwin Vv. Secretary of Health and Human Serv- ices, No. 81-1885 (1st Cir. June 22, 1982) .......... 7 Cases—Continued Page Spencer V. Schweiker, 678 F.2d 42 .....................-- 38 Thomas V. Schweiker, 666 F.2d 999 —.................... 36, 40 Torres V. Secretary of Health and Human Serv- Be, ME IEE ET cinsconsenuniiiicssilanbatndiipantesndstdhenncinecens 40 Torres V. Secretary of Health and Human Serv- A a eaeerntacensnens 17, 44 United States v. Rutherford, 442 U.S. 544 _.......... 28 Vazquez V. Secretary of Health and Human Serv- I a iecneennisenens 89 Statutes, rules and regulations: Social Security Act, 42 U.S.C. (& Supp. IV) 301 et seq.: 42 U.S.C. (& Supp. IV) 406 —..........0......... 26 0 2, 10, 18, 14, 15, 25 42 U.S.C. (Supp. IV) 405(b) -...................... 3 42 U.S.C. (Supp. IV) 405(g) ........................ 3,9 ER AE 8 42 U.S.C. (Supp. IV) 421(a) -~...................... 3 I ea ea ctntrineeeesernnne 29 42 U.S.C. (Supp. IV) 421(d) ........................ 3 EE EEE eR 29 42 US.C. (& Supp. IV) 428 .......................... 26 42 U.S.C. (& Supp. IV) 423(d) ~.................. 2 RS ET eee 20 I css 33 42 U.S.C. 428(d) (2) (A) ..... 2, 4, 6, 9, 14, 15, 18, 19, 22, 35 — 2 a | TSE ER eneC armen 15 8 ee 22 42 U.S.C. (Supp. IV) 423(d) (4) —................ 15 42 U.S.C. (Supp. IV) 423(d) (5) —......... 10, 14, 15 42 U.S.C. (& Supp. IV) 1882c(a) (38) .......... 2 UR 2 Oe ITED ccceusernsclisiinntaianignnnateces 15 gg RRR ES 15 OR eT RSET Se 16 Social Security Amendments of 1954, ch. 1206, Section 106, 68 Stat. 1080 EE SET 20 vi Statutes, rules and regulations—Continued Page Social Security Amendments of 1956, ch. 836, Section 108, 70 Stat. 816 .......................-.-...000---.- 20 Social Security Amendments of 1958, Pub. L. No. 85-840, Section 205, 72 Stat. 1021 ..................... 20 Social Security Amendments of 1960, Pub. L. No. 86-778, Section 401, 74 Stat. 967 —................... 20 Pub. L. No. 94-455, Title XII, Section 211(b), 90 CREF T OT Sa aC eA SEE 27 Pub. L. No. 95-216, Title III, Sections 335, 353(f) Ss ee Ce Se SD cicnarintisitesseencencontttiinpensvenns 26-27 Pub. L. No. 95-600, Title VII, Section 703(j) (14) EE ean 26 Pub. L. No. 96-265: Title I, Section 102(b), 94 Stat. 448 00000... Title III: Section 302(a) (1), 94 Stat. 450 0... Section 303(b) (1) (A), 94 Stat. 451 .... Section 303(b) (2) (A), 94 Stat. 451 Section 305(a), 94 Stat. 453 20000... Section 306(c), 94 Stat. 457 0000000000. Section 307, 94 Stat. 458 2.000000. Section 309(a), 94 Stat. 459 20000... Pub. L. No. 96-473, Section 5(a) (1), (c), 94 Stat. SD CI teereicteerrernsestnccsnintenediagtinininecentetmngnecetstomme Pub. L. No. 97-123, Section 6, 95 Stat. 1664 _........ Lh. 1 OS 20 C.F.R. Part 404: ES a eee Fa Section 404.967 (c) (1) ................---.esceeese-ce-ees Section 404.1502(a) (1961) 2.000... Section 404.1502(c) (Cum. Supp. 1964) ...... I IID oc. ccccrncsnteittienicctennntnienintonione ES ae ee I ID vectettrceseictntatincenstnpincnttcnmninenes Section 404.1520(e) ..... sis A i ticmae Sections 404.1560 to 404.1568 000000. Section 404.1568 (a) ofS SSSSSss & Statutes, rules and regulations—Continued Page OS | ae 19 NS een 39 I CD ia sersdierrnenmanenenerenennvenoa 39 Section 404.1564(b) (1) to (3) —.................... 45 OS aS ae 19 ON OOS\C 8 ES 7,32 a 36, 39 I ic sicceneinnsemenatianenmmneiins 42 SS ES 29, 38 NE ST See ae 19 Section 404.1568(d) (2) -.......---------.-----.--.0-s000++ 39 Sl a 9, 35, 39 SI MIIIIED cccccenittbcsniadiiceecctenecesisomennnnecinne 5 20 C.F.R. Part 404, Subpart P. _.......................... 2,4 =, 5, 19, 38 GS RPE Sc De Serer 19 I a arcoseeminsielininanibanens 19 EEE Rn Sern 19 pS ne 5, 37, 39 I eee 6, 9, 39, 45 Se in TSI SESE 39 Section 200.00(e) -_... dldilatiniesatceteanal 6, 36, 39, 40 re ae 6, 18 I a ticemneeblliban 40 Section 202.00(a) —.........--.....-.-..---... 7, 18, 36, 45 a 19, 35 ES eres 7,18 Ee ee 19, 35, 36 5 a ee 8, 35, 45 BI catiacectletebannntitianbidinsdiabihdittinenaintendiililie 35 20 C.F.R. Part 416, Subpart I .................................. 2 I, GD cccccicocstnstetantiamaiaiaecingttingtoins 2 20 C.F.R. Part 422: Sr a 42 Section 422.480 (1) (4) ...........-.-..--c-cs-c-eceese--ese0e 42 Miscellaneous : Page Administration of Social Security Disability In- surance Program: Hearings Before the Sub- comm. on the Administration of Social Security Laws of the House Comm. on Ways and Means, 86th Cong., Ist Sess. (1959) ............................... 21 Bureau of the Census, Census Reports _.................. 30 Bureau of the Census, County Business Patterns.. 30 Bureau of Disability Insurance, Vocational Spe- cialist Training Handbook .........................-..--.- 28, 29, 30 Bureau of Labor Statistics, Occupational Outlook ESERIES To ce eee ae et Se 30 Comptroller General of the United States, The Social Security Administration Should Provide More Management and Leadership In Determin- ing Who Is Eligible for Disability Benefits ARPS ee ES rece a ek Leeann were 113 Cong. Rec. (1967): DMIS/OHA, FY81 Key Workload ita ER SRE iS ee, hee ae DMIS/OHA, Participant Involvement In Request For Hearing Cases (Mar. 1982) ........................ Department of Health and Human Services, Social Security Annual Report to the Congress for 2 £ £F BB §S Pe I Ce I Cid dicterthonestcemessatenees 4 Department of Health, Education, and Welfare, Social Security Administration, OASI Disability Insurance Letter No. III-3 (Sept. 20, 19638)...... 28, 29 Department of Labor, Dictionary of Occupational 8 a eer hee 7, 30 Department of Labor, Selected Characteristicsof Occupations Defined in the Dictionary of Occu- RE a 32 Disability Insurance Program: Hearings Before the Subcomm. on Social Security of the House “tage on Ways and Means, 94th Cong., 2d By SID. cicestcincicreeillliadeticinitestttibedbdlsbekdppilscadiiptmes 24, 25 Xx Miscellaneous—Continued Page Disability Insurance Program—i1978: Hearings Before the Subcomm. on Social Security of the House Comm. on Ways and — 95th Cong., fF A aT at Ses Re 25-26 Oe, By IE SD accncncsticcieenecinnsccnrenesens 3 yg RNS ee reel ee 3 43 Fed. Reg. (1978) iy TE cincinsiunctiabdatiapscnntpcitacaantputinbicinaiigipennemanittegds 26 > a eee 3, 23, 26 a, TEI ~ wiciniteinecgtasiedctnicentipapnenconemnensint 21, 30 SID | scichcsensiesdiatennscdphineepiantgisltiggianiedmnntailantite 7, 30 IIIT, «Seca tussacineeshteitieascaniiinteidaippeniicnatiialababionit 7 TIED. aus 6 bbesn nein 5 ee, haere 14, 15 20 C.F.R. Part 416: I inno ail sisal ole otitis 12 vi Table of Authorities Continued Page MISCELLANEOUS: Davis, K., Administrative Law Treatise (2d ed. 1980) 21, 24 Davis, K., Administrative Law Treatise (1958) ....... 10 Dictionary of Occupational Titles .................5. 22 Ss GE GPCI havc ticcccccccccsccescces 10, 21 Se es SN EE he cv ccccviccccescocconcsess 22 SD Fs BR, Ge Ge cc cc cvcccccscccvcccedecces 22 Goldhamer, The mmr of the New Medical Vocational Guidelines on Security and Supplemental Se- art Income Claims, 32 Ad. L. Rev. 501, 509 - H.R. Rep. No. 96-100, 6th Cong. Ist Sess. 12 (1979)... 16 Occupational Outlook Handbook .................... 22 STATEMENT The Secretary of Health and Human Services (“Secretary”) construes this case as a challenge to the validity of his medical- vocational regulations for determining disability (“the grid”, 20 C.F.R. Part 404, Subpart P, App. 2). Respondent Carmen Campbell never challenged the validity of the regulations be- low and does not do so here. The Court of Appeals did not invalidate the regulations explicitly or implicitly. Respondent agrees that the Secretary “in appropriate cases may rely upon published medical-vocational guidelines, rather than testi- mony of vocational experts, to determine the existence of substantial gainfui work in the national economy for disability claimants under the Social Security Act.” (Pet. Br. at i). In his brief, the Secretary emphasizes that “[iJt is only after [a] detailed and individualized factual inquiry into a claimant’s medical and vocational characteristics that the guidelines and tables in Appendix 2 come into play,” (Pet. Br. at 6), aad only “if claimant’s vocational and medical profile is . . . precisely contained in Appendix 2.” (Pet. Br. at 39). The Secretary thus agrees that the medical-vocational guidelines can be used only where they apply by their own terms and only after he has made adequate findings of fact as to a claimant’s individual medical and vocational capacities. The Court of Appeals remanded this case because the Secre- tary failed to give an unrepresented and uneducated disability benefits claimant adequate notice of the factors to be con- sidered in applying the regulations, thereby depriving Mrs. Campbell of the opportunity to testify about her medical and vocational capacities to perform jobs other than domestic work. The Court of Appeals directed the Secretary to provide Mrs. Campbell with examples of jobs in the job categu..es he thought would be appropriate for her as a way of informing her of the nature of the factual findings required by the grid, so that she would be able to testify meaningfully about them. The Court of Appeals’ requirement of a listing of job ex- amples is simply one reasonable, non-burdensome method by 2 which the Secretary can partially fulfill his duty to notify claimants of the factual issues on which they are entitled to present evidence before the grid can be used to make a final disability determination. This requirement does not invalidate the grid or render it useless; it merely aids in its application. Proceedings Below This is a conventional appeal from the denial of disability insurance benefits under Title II of the Social Security Act pursuant to 42 U.S.C. § 405(g). Under Title II an “insured individual” (a person who has worked long enough in employ- ment covered by the Act) is eligible for benefits if he has a “disability,” that is, 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, educa- tion, and work experience. engage in any other kind of sub- stantial gainful work which exists in the national economy. . .” 42 U.S.C. § 423(d)(2)(A). Respondent applied for disability insurance benefits in Octo- ber, 1979, at age 51, alleging disability because of a herniated lumbar disc and hypertension. (Pet. App. 2a). She has a sixth grade education obtained in Panama. (Pet. App. 3a). She testi- fied at her hearing that she could understand English, her second language, “fairly well” (J.A. 42) although the transcript of the hearing indicates she had some difficulties expressing herself. (See, e.g., J.A. 43-45). Mrs. Campbell’s entire rele- vant work history consisted of domestic work, as the Secretary found. (Pet. App. 28a). She worked primarily as a maid, first in private homes and then in a hotel. (J.A. 45-46). Respondent’s claim was denied on the ground that “claimant maintains the capacity to perform her past work as a maid.” (J.A. 27). Respondent then requested a hearing, held before an Administrative Law Judge (“A.L.J.”) on August 22, 1980. The medical evidence in the record includes a series of let- ters from the surgeon who performed a laminectomy on Mrs. Campbell’s back. These letters are formulated in terms of Mrs. 3 Campbell’s ability to return to her chambermaid job. For ex- ample, a letter dated May, 1979, states that Mrs. Campbell could go back to work in June if she avoided lifting “heavy” objects or “strenuous” work. (J.A. 8-9). A letter dated July, 1979, states that Mrs. Campbell complained of pain but “may return to light duty work.” (J.A. 11). Another letter dated November, 1979, reports that Mrs. Campbell had pain, numb- ness, needles sensation, limitation of back movement and re- stricted leg raising. The surgeon states that Mrs. Campbell “is disabled from doing her regular work, and should avoid lifting heavy objects and strenuous work.” (J.A. 55). The surgeon does not define “light,” “heavy” or “strenuous.” The record also includes the reports of Mrs. Campbell’s physiatrist,' who states that the claimant’s sitting tolerance was 30 minutes, standing tolerance was 1 hour, walking toler- ance was two blocks, and lifting and carrying was restricted to a maximum of 10 pounds. (J.A. 28, 32-33).* The A.L.J. issued a decision on September 26, 1980, in which he attempted to follow the five steps for evaluating disability set forth in detail at 20 C.F.R. § 404.1520, et seq. First, the A.L.J. found that Mrs. Campbell was not working. 20 C.F.R. § 404. 1520(b). Second, he found that her impairment was “se- ' A physiatrist is a doctor of medicine specializing in physical ther- apy and rehabilitation. ? The balance of the medical evidence consists of the records of the Brooklyn Hospital, which state that Mrs. Campbell has been receiv- ing pelvic traction treatment for her lumbar spine since 1973. The hospital records show that on January 10, 1979, Mrs. Campbell underwent a laminectomy in which two herniated discs were re- moved. Although she still complained of pain on walking she was discharged on January 27, 1979. (Tr. 86-94). (References to those portions of the transcript of the administra- tive record not included in the appendixes, but filed with the Court, are indicated by “Tr”) 4 vere”: that it “limited her physical or mental ability to perform basic work activities.” 20 C.F.R. § 404.1520(c). Third, he found that her impairment was not as severe as those listed in Appendix 1 of the regulations, 20 C.F.R. Part 404, Subpart P, which would entitle a claimant to benefits regardless of her age, education or vocational characteristics. 20 C.F.R. § 404. 1520(d). Fourth, he found she could not perform her past woik. 20 C.F.R. § 404.1520(e). The parties agree that the A.L.J.’s decisions on these first four steps were correct. The dispute is about the fifth step, in which the A.L.J. had to decide whether Mrs. Campbell could, considering her impairments, age, education and work history, perform other work in the national economy. The A.L.J. ap- plied the medical-vocational guidelines in the regulations to decide the question of alternative work. These regulations include tables which indicate whether jobs exist in the national economy for claimants who are categorized by age, education and work experience; who have only strength-related limita- tions; and who retain the residual exertional capacity to per- form moderate, light, or sedentary work. . At the start of the hearing, the A.L.J. made an introductory statement which included the following: I will be taking evidence as to the severity and the ex- cted duration of your impairments, whether your impairments are of such severity as to prevent the per- formance of your past relevant work, and whether you have the residual capacity to perform other types of work taking into account your age, education and work history. There is a lot of instances that we can take in evidence [sic] on your residual functional capacity to engage in sedenta- ry, light, medium, or heavy work. This essentially, what we're taking into account, your ability to walk, stand, sit, lift, push, pull or carry. I will take evidence and consider any mental, skin, senso- ry or environmental impairment that might limit your capacity to work. (J.A. 37). The A.L.J. did not explain what he meant by “residual capac- ity” or by “sedentary, light, medium or heavy work.” (J.A. 37). 5 Mrs. Campbell, who was unrepresented, described her duties as a maid and explained why she was no longer able to perform these duties. (J.A. 44-49). The A.L.J. did not ask a single question relating to Mrs. Campbell’s capacity to perform work other than domestic work and she did not testify about it. The A.L.J. did not ask Mrs. Campbell to describe how long she could sit or stand or how much she could lift or carry or whether she had any allergies or mental problems. In fact, on the two occasions when Mrs. Campbell attempted to describe the limitations in her exertional abilities, the A.L.J. changed the line of her testimony. (J.A. 50). The A.L.J. found that 20C.F.R. Part 404 Subpart P, App. 2, Rule 202.10 (the grid rule) “dictates a finding that the claimant is not ‘disabled.’ ” (Pet. App. 27a). This rule does in fact require a finding of no disability for an individual age 51 (defined by the regulation as closely approaching advanced age), with a sixth grade education (categorized by the regulation as marginal education), a history of unskilled work, the exertional capacity for light work and no significant non-exertional limitations. The A.L.J.’s decision became the final decision of the Secre- tary upon its adoption by the Appeals Council. (Pet. App. 16a-19a). Mrs. Campbell then sought judicial review in the United States District Court for the Eastern District of New York. Although the District Court Judge stated that “eventually she is going to be able to prove a disability. Thereis no question in my mind. . . I would start a whole new record with this last letter from the doctor and you are in good shape,” he dismissed the complaint on the ground that the determination of the Secretary was supported by substantial evidence. (Pet. App. 12a). ’Transcript of the April 20, 1981 status conference, p.5. This transcript was filed with the Court of Appeals. The District Judge referred to the surgeon’s letter dated Novem- ber, 1979, which had in fact been received into evidence and con- sidered by the Appeals Council. (J.A. 55). 6 Mrs. Campbell then appealed to the Court of Appeals for the Second Circuit. The Court of Appeals remanded the case for further proceedings, holding that Mrs. Campbell had been deprived of adequate notice of the determinative issue at her hearing, her ability to perform alternative jobs existing in the economy. The Court said, 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 claimant is deprived of any real chance to present evidence showing that she cannot in fact perform the t of jobs that are administratively noticed by the guidelines . . . it would not be too great a burden for the tary or the ALJ to - arg a few suitable alternative available types of jobs so t 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 evi- dence into the record on that issue. Campbell v. Secretary of H.H.S., 665 F.2d 48, 53-54 (2d Cir. 1981). Rehearing en banc was denied by the Court of Appeals on February 11, 1982. (Pet. App. 30a-31a). Mrs. Campbell, still insured under the Act, filed a second application for disability benefits in February, 1981. The reapplication was denied initially and upon reconsideration, and Mrs. Campbell requested a hearing which was held before an A.L.J. on March 17, 1981. Due to the pendency of the instant proceeding, Mrs. Campbell agreed, at her hearing, to change the alleged date of onset of disability toJanuarv 1, 1981. On April 28, 1982, the A.L.J. issued a decision fie +g that at least as of January 1, 1982, Mrs. Campbell was noi only unable to perform her past work, but incapable of performing any substantia! gainful activity.‘ Thus, the remaining issue is Mrs. Campbell’s entitlement to retroactive benefits. ‘The Secretary’s claim in his brief that the second application was granted “on the basis of a change in her condition” (Pet. Br. at 8 fn. 7) is unfounded. While Mrs. Campbeil, represented by counsel at the 7 SUMMARY OF ARGUMENT 1. Claimants have the burden of proving that they are eligible for disability benefits, but once they prove they are unable to perform their past jobs, the burden of going forward shifts. The Secretary must then prove that there are other jobs that the claimants can perform. The Secretary may take ad- ministrative notice, through the “grid”, of the existence of jobs for people with certain capacities, but he must make in- dividualized findings of fact concerning the actual capacities of the particular claimant. 2. Inorder to obtain the evidence necessary to make these findings of fact, the Secretary must meaningfully inform the claimant of the issues to be addressed at the hearing. The duty to inform the claimant of the issues arises from the Social Security Act and regulations. The Secretary has an obligation, based on the regulations and on virtually unanimous case law to aid the claimant in presenting all the relevant evidence. The need for meaningful notice arises also from the constitutional guarantee of due process of law. The notice must be reasonably calculated to enable claimants to understand the issues. 3. The listing of job examples prescribed by the Court of Appeals is an appropriate way for the Secretary to provide the required notice. Job examples help notify claimants of the relevant job requirements: both the exertional and vocational factors incorporated in the grid and the non-exertional factors which limit the grid’s applicability. Mrs. Campbell was not informed of the need to testify about either exertional or non- exertional impairments. 4. The grid regulations themselves do not provide ade- quate notice to claimants of the issues to be determined at the second hearing, submitted additional medical evidence of her back impairment and the resulting emotional overlay, there was no evi- dence or finding of a change in her condition. The decision after the second hearing is annexed hereto as App. 1. 8 hearing. Notice must be tailored to the individuals receiving it. These regulations are complex, available only to those able to travel, and they do not include an adequate explanation of their boundaries or actual examples of jobs. They are not meaningful notice for disabled, often unrepresented and poorly educated claimants. 5. The requirement that the A.L.J. give a list of job ex- amples does not make the grid useless. The A.L.J. does not have to cite jobs particularly suited to the individual claimant; the listing of jobs is meant only to illustrate some of the requirements of the relevant grid job category in order to inform the claimant in a meaningful way of the issues to be determined. The testimony of vocational experts will not be required. ARGUMENT THE COURT OF APPEALS CORRECTLY HELD THAT THE SECRETARY’S FAILURE TO GIVE MRS. CAMPBELL EXAMPLES OF THE JOBS HE ALLEGED WERE AVAILABLE TO HER DEPRIVED HER OF MEANINGFUL NOTICE OF THE ISSUES TO BE TRIED AT THE HEARING. A. The Regulations And Caselaw Require Individualized Proof Of Claimants’ Medical And Vocational Character- istics. Individuals claiming disability benefits have the burden of proving that because of a physical or mental impairment they are unable to do their previous work or any other substantial gainful work which exists in the national economy. 42 U.S.C. § 423. Once claimants show that they cannot return to their former work, however, the burden shifts to the Secretary to establish that claimants can engage in alternative employment and that other jobs actually exist. Kerner v. Flemming, 283 9 F.2d 916 (2d Cir. 1960).° This shift is necessary because the Secretary has greater knowledge of both existing jobs and the capacities needed to perform the..; without the shift claimants would have the impossible task of proving their incapacity to do every other conceivable job. This judicial rule was implicitly approved by Congress, which left it unchanged when amend- ing the definition of disability in the Social Security Act. See P.L. 90-248, 81 Stat. 821, the 1967 amendments. Under the rule the Secretary’s burden is twofold: First, he must show that claimant, aetna ve age, his education, his work experience, his skills and his physical ag eee has the capacity to perform an alternative job. Second this job must be shown to exist in the national economy. McLamore v. Weinberger, supra, 538 F.2d at 574. Even before the grid regulations were promulgated, courts recognized that the Secretary could meet these two require- ments in different ways. The Secretary could take administra- tive notice of the existence of and requirements for certain jobs, but he was required to base his decision upon in- dividualized proof of a claimant’s capacities to work: while this and other circuits have agreed that the Secreta- ry may administratively notice the existence of such jobs in the economy, facts pertaining to the capacity of a speci- fic individual can be supplied only be particularized proof. 5 This has been the consistent holding of Courts of Appeals. See, e.g., Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); Hail v. Secretary of Health, Education and Welfare, 602 F.2d 1372, 1375 (9th Cir. 1979); Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978); Small v. Califano, 565 F.2d 797, 800 (1st Cir. 1977); Garrett v. Richardson, 471 F.2d 598 (8th Cir. 1972); McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976); Lewis v. Weinberger, 515 F.2d 584, 587 (5th Cir. 1975); Stark v. Weinberger, 497 F.2d 1092, 1098 (9th Cir. 1974); and Meneses v. Secretary of Health, Education and Welfare, 442 F.2d 803, 807 (D.C. Cir. 1971). 10 See Hernandez v. Weinberger, [493 F.2d 1120 (1st Cir. 1974)]; 2K. Davis, Administrative Law § 15.03 at 353 and § 15.10 at 403 (1958). To allow the Secretary to “notice” a fact that is both complex and disputed would undermine an explicit congressional direction to adjudicate disability claims on an individual case-by-case basis. Taylor v. Weinberger, 512 F.2d 664, 668 (4th Cir. 1975). See also, Geoffroy v. Secretary of H.H.S., 663 F.2d 315, 317 (1st Cir. 1981). The Secretary promulgated the grid regulations in the con- text of this body of law. 43 Fed. Reg. 55349 (Nov. 28, 1978). The purpose of the grid is to provide consistency in showing the existence of alternative work for claimants. The only automatic function of the grid is to take administrative noti [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_2070%3A0. Public record. Not legal advice.