Petition for Writ of Certiorari — Bowen v. Yuckert

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Supreme Uourt

Oe ae

No. 65 1409) cep ss sien

Jn the Supreme Court of the Ani

OCTOBER TERM, 1985

WZCIED COP

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C0!

Otis R. BOWEN, SECRETARY OF HEALTH

AND HUMAN SERVICES, PETITIONER

JANET J. YUCKERT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

ROBERT S. GREENSPAN

MARK B. STERN

Altorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the court of appeals correctly invalidated a

regulation promulgated by the Secretary of Health and

Human Services, 20 C.F.R. 404.1520(c), which provides

that a person seeking Social Security disability benefits

will be found not to be disabled if he does not have a

medically “severe” impairment that significantly limits his

ability to do basic work activities.

TABLE OF CONTENTS

Page

eee tens euedseens ceukeaee auaue l

EE rn ee eee l

Statutory and regulatory provisions involved ...... 2

ee le a ed eeadasé-ne te care 2

A. The statutory and regulatory framework ........... 2

B. The proceedings in this case .............. 2

Reasons for granting the petition ................ Veaeucds 10

CR, eS ed ie a cs wa we ivanwanse 24

ES od boa d4 656 6000) 0e6eeeekss +r eerery. la

Appendix B....... eae an yee were ery joaa aa 13a

Appendix C ..... wabeens eae (ictitaahesenneas — l4a

AppendixD..... + iva ee Per 1Sa

Appendix E ...... eres ry oe ravens 20a

ERE rae re ane ere aaa 21a

AppendixG ........ rete aaueies tn ahas wa oaeriten 24a

ig dae Gee eis bs icebidbiciieotseueranere 30a

Appendix | ........ piebeteseadcens Paackeneniceacates 37a

TABLE OF AUTHORITIES

Cases:

Baeder v. Heckler, 768 F.2d 547 ..............200055- 20, 22

Bailey v. Heckler, No. 83-1797 (M. D. Pa. Dec. 3, 1985),

appeal pending, No. 86-5038 (3d Cir.) ............. 22

Brady v. Heckler, 724 F.2d914..............00.00005. . 10, 22

Bunch v. Heckler, No. 84-3102 (7th Cir. Dec. 5, 1985) ... 21

Campbell v. Heckler, No. C-84-2085 (N.D. lowa Oct. 21,

Nov. 27, 1985), appeal pending, No. 86-1090NI (8th

re ar ene ee ee 23

Chevron U.S.A. Inc. v. NRDC, Inc., No. 82-1005 (June

Poke BOGE SZ a nee tise ed bas ewes . 16, 21

Chico v. Se hweiker, 710 F.2d 947 ........ 10

Dixon v. Heckler, 589 F. Supp. 1494, appeal pending, No.

84-6288 (2d Cir.) .......... Sele bk be eee 2:

Estan v. Heckler, 745 F.2d 340 . yr reo.

Evans v. Heckler, 734 F.2d 1012. “a 10, 22

Farris v. Secretary of Health & Human Services, 773 F.2d

85 as Pie eee ae 10, 22

(itl)

Cases — Continued: Page

Flynn v. Heckler, 768 F.2d 1273 .... 2... 0. eee. 22

Garan ¥. Fiachiar, THt F DO GT .. ccc cc cccccccccccecs 22

Gist-v. Secretary of Health & Human Services, 736 F.2d

SE ch-v6 Roeaee ee ie ere teed ae ekerchdeceks 22

Hansen v. Heckler, No. 84-2366 (10th Cir. Feb. 5, 1986) . 22

Heckler v. Campbell, 461 U.S. 458 .........0.0..00006.. 3, 5,

11, 16,2

Johnson v. Heckler, 769 F.2d 1202, rehearing denied, 776

RR ee or er rane re eee 21

Lindahl v. OPM No. 83-5954 (Mar. 20, 1985) .......... 16

EGGS GF, Ge hells. DEO 6 vidi cv ccccccccccaeccces 16

McDonald v. Heckler, No. 84-2190-G (D. Mass. Dec. 19,

1985), appeal pending (Ist Cir) ..................... 23

Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456

DP idiidap tl ektaveieocnchandsabesudadalvcane << 14, 16

Pattern Makers v. NLRB, No. 83-1894 (June 27, 1985) ... 13

Salmi v. Secretary of Health & Human Services, 774 F.2d

Sl, Gand scescekareces caddies uetendvineeeteaces 2

Schweiker v. Gray Panthers, 453 U.S. 34 .............. 8, 11

Smith v. Heckler, 595 F.Supp. 1173, appeal pending, No.

EE Ae ache en eet eben ceubabedecess 21

SOOT V, TEs FU ae OD occ ce cteccccercccccces 20, 22

Wilsoi. v. Heckler, No. 83-3771 (D. N.J. Oct. 9, Nov. 14,

1985), appeal pending, No. 85-5814 (3d Cir.) ......... 22

Statutes and regulations:

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

ee ed oe csc ubvecsscedevecet 8, 11, 23

G2 UBC. GRD ow cc ccccees Vecuceeetue deste er F

42 U.S.C. 416(i) (§ 216(i)) ... 2. eee, pummant 12

ee ce cccvscsesceeacecs 14, 16

occ dccvcsvcceevdcepenta<s 2

oc ecaseed 16

42 U.S.C. 423(d)(1 (A) (§ 223(d (1 MA)) ©... ... +a oe oe

42 U.S.C. 423(d)(2M(A) (§ 223(d(2M(A)) . 2.22.2... as ae

8, 13, 14, 15

Ce ne ae wis 2

42 U.S.C. 1382c(ap(3A) (§ 1614(ap(3)A)) .. 2... .. 2, 3, 16

42 U.S.C. 1382c(a)(3)(B) (§ 1614(a)(3)(B)) ........ 2, 3, 16

Statutes and regulations — Continued: Page

Social Security Amendments of 1954, ch. 1206, § 106(d),

RE RR i ie ee ee ee ems 11

Social Security Amendments of 1956, ch. 836, § 103, 70

Otis ad pee h acids seeded l Gakn’ ree 12

Social Security Disability Benefits Reform Act of 1984,

Pub. L. No. 98-460, 98 Stat. 1794 ef seq.:

PR 8 2 A ree 5

§ 4, 98 Stat. 1800-1801 (to be codified at 42 U.S.C.

423(d)(2(C) and 1382c(ayi3MG)) .............. 2, 17, 18

Pub. L. No. 90-248, § 158(b), 81 Stat. 868 ............. 13

Pub. L. No. 92-603, § 301, 86 Stat. 1465 ........... faa i6

20 C.F.R.:

Pe SE ook on cu h-o 66668 % ae 4

Section 404. 1502(a) (1961, 1967 & 1977) i 9, 13,

14, 16

Section 404.1520 ............ io 0 «6a 2, 3, 20

Section 404.1520(b) ............. x i eo tle Bacar 3

i ee ete s ese wetness ~ YF

ee cede w onesies 4

ee a ae 4

Section 404.1521 ........ PP PORE Pere eee 2, 20

Section 404.1521(a) ....... ele eel 3

Section 404.1521(b) Se es oe ee

Sections 404.1545-404.1568 .................. 17

iw deta cheeneenas I Ae Ne ‘- 4

Pt. 416:

Section 416.920 ...... inna ves eeteens wm he

Section 416.920(b) ........... OF tga 8 Boa & 3

Section 416.920(c) ...... OR EO

Section 416.920(d) ......... ¥ . 4

Section 416.920(e) .......... hori we sw Serene 4

NMED gg cc ccccccucs Ce. ae 2, 20

Section 416.921(a) ............. - + 4

Section 416.921(b) . sete es pee 4

Sections 416.945-416. 968 - ne | a 17

Miscellaneous:

130 Cong. Rec. $11458 (daily ed. Sept. 19, 1984) ve 19

25 Fed. Reg. 8100 (1960) ........ mI On eer oe 13

Miscellaneous — Continued: Page

33 Fed. Reg. (1968):

Ee a ee ee ae

Gs ald hee We Dc Uc ueeleee abe k vskc Be cae

43 Fed. Reg. (1978):

Raines Wath ood anesonosdedu nee ci cack

Tia ea coh daweekudud ecoudeecetice ca. aiaci

eG a ee

p. 55363 (20 C.F.R. 1503(c), 404.1504(a)(1)) ....... 9,

p. 55371 (20 C.F.R. 416.903(c), 416.904(a)(1)) ......

Se TS cid ee uh Wake o OAL Kb CCOUKL on Kae ck ceca

45 Fed. Reg. (1980):

p. 55574 (20 C.F.R. 404.1520, 404.1521) ...........

p. 55588 (20 C.F.R. 404.1520(c), 404.1521) ........

pp. 55624-55625 (20 C.F.R. 416.920(c), 416.921) ....

50 Fed. Reg. (1985):

MERA da heos ob awh hau whek bees 66 eceoac

pp. 50135-50136 (20 C.F.R. 404.1594(f)) ...........

pp. 50142-50143 (20 C.F.R. 416.994(b)(5)) .........

H.R. Conf. Rep. 98-1039, 98th Cong., 2d Sess. (1984) ...

H.R. Rep. 1698, 83d Cong., 2d Sess. (1954) ............

H.R. Rep. 544, 90th Cong., Ist Sess. (1967) ............

H.R. Rep. 98-618, 98th Cong., 2d Sess. (1984).......... 9,

S. Rep. 1987, 83d Cong., 2d Sess. (1954) ...............

S. Rep. 744, 90th Cong., Ist Sess. (1967) ............... 15,

S. Rep. 1230, 92d Cong., 2d Sess. (1972) .........0.....

S. Rep. 98-466, 98th Cong., 2d Sess. (1984) .........

In the Supreme Court of the Anited States

OCTOBER TERM, 1985

No.

Otis R. BOWEN, SECRETARY OF HEALTH

AND HUMAN SERVICES, PETITIONER

Vv.

JANET J. YUCKERT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the Secretary of

Health and Human Services, petitions for a writ of cer-

tiorari to review the judgment of the United States Court

of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

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

la-12a) is reported at 774 F.2d 1365. The order of the

district court (App., infra, 14a) and the recommendation

of the magistrate (App., infra, 1Sa-19a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 24, 1985. By order dated January 14, 1986,

Justice Rehnquist extended the time within which to file a

petition for a writ of certiorari to and including February

21, 1986. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

(1)

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

Sections 223(d)(1)(A) and (2)(A), 1614(a)(3)(A) and (B)

of the Social Security Act, as codified at 42 U.S.C.

423(d)(1)(A) and (2)(A), 1382c(a)(3)(A) and (B); Sections

223(d)(2MC), 1614(a)(3)(G) of the Social Security Act, as

added by Section 4 of the Social Security Disability

Benefits Reform Act of 1984, Pub. L. No. 98-460, 98 Stat.

1800-1801 (to be codified at 42 U.S.C. 423(d)(2)(C),

1382c(aX(3)(G)); and 20 C.F.R. 404.1520, 404.1521,

416.920, 416.921 are reproduced at App., infra, 30a-36a.

STATEMENT

The court of appeals in this case invalidated a regulation

that is an integral part of the sequential evaluation process

established by the Secretary of Health and Human Serv-

ices for determining whether a person seeking Social

Security disability benefits is disabled. The regulation pro-

vides that if the claimant does not have a medically

“severe” impairment—defined to mean an impairment

that significantly limits a person’s mental or physical abili-

ty to do the basic work activities that are necessary for

most jobs—the claimant will be found not to be disabled.

A. THE STATUTORY AND REGULATORY FRAMEWORK

Title Il of the Social Security Act provides, inter alia,

for the payment of insurance benefits to a person who is

“under a disability.” 42 U.S.C. 423(a)(1)(D). Disability

benefits also are provided under the Supplemental Securi-

ty Income (SSI) program_established by Title XVI of the

Act. 42 U.S.C. 1382(a). The term “disability” is defined to

mean

inability to engage in any substantial gainful activity

by reason of any medically determinable physical or

mental impairment which can be expected to result in

death or which has lasted or can be expected to last

for a continuous period of not less than 12 months[.]

42 U.S.C. 423(d)(1)(A); see also 42 U.S.C. 1382c(a)(3)(A).

The Act further provides in relevant part that an in-

dividual

shall be determined to be under a disability only if his

physical or mental imr ‘rment or impairments are of

such severity thu. 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 substantial gainful work which exists in the na-

tional economy, regardless of whether such work ex-

ists in the immediate area in which he lives, or

whether a specific job vacancy exists for him, or

whether he would be hired if he applied for work.

42 U.S.C. 423(d)(2)(A), 1382c(a)(3)(B).

To implement these statutory definitions, the Secretary

has by regulation established a five-step “sequential

evaluation” process to be followed in determining whether

a claimant is disabled. 20 C.F.R. 404.1520, 416.920. See

Heckler v. Campbell, 461 U.S. 458, 460 (1983). At step I,

the decision-maker (either the state agency or the ad-

ministrative law judge (ALJ)) determines whether the in-_

dividual is engaged in work that constitutes substantial

gainful activity. If so, he is found not to be disabled. 20

C.F.R. 404.1520(b), 416.920(b’.

if the claimant is not engaged in substantial gainful ac-

tivity, the sequential evaluation process continues to step

2, which is at issue in this case. At step 2, the decision-

maker determines whether the individual has demon-

strated the existence of a medically “severe” impairment or

combination of impairments. 20 C.F.R. 404.1520(c),

416.920(c). An impairment is not “severe” if it does not

“significantly limit {the claimant’s] physical or mental

ability to do basic work activities” (20 C.F.R. 404.1521(a),

416.921(a)). The regulations in turn define the term “basic

work activities” to mean “the abilities and aptitudes

necessary to do most jobs” (20 C.F.R. 404.1521(b),

416.921(b)), which are identified as: (1) “[p}hysical func-

tions such as walking, standing, sitting, lifting, pushing,

pulling, reaching, carrying, or handling”; (2) “[c]apacities

for seeing, hearing, and speaking”; (3) “[u]nderstanding,

carrying out, and remembering simple instructions”; (4)

“{ujse of judgment”; (5) “[rjesponding appropriately to

supervision, co-workers and usual work situations”; and

(6) “[djealing with changes in a routine work setting” (20

C.F.R. 404.1521(b), 416.921(b)). If the claimant does not

have an impairment that significantly limits his ability to

do these basic work activities, he will be found not to be

disabled at step 2, without specific consideration of his

age, education, and work experience. 20 C.F.R.

404.1520(c), 416.920(c).

If the claimant is found to have a “severe” impairment,

the decision-maker then must determine at step 3 of the se-

quential evaluation process whether the impairment is so

serious as to be equal in severity to one of the listed im-

pairments that are deemed to be disabling on medical

grounds alone, without specific consideration of the

claimant’s age, education, and work experience. 20 C.F.R.

404.1520(d), 416.920(d); 20 C.F.R. Pt. 404, Subpt. P,

App. 1. If the individual’s impairment is not one that is

automatically deemed disabling at step 3, the decision-

maker then must determine at step 4 whether the impair-

ment prevents the individual from performing his own

past work. If the claimant is still able to do his past work,

he is found not to be disabled. 20 C.F.R. 404.1520(e),

416.920(e). But if the claimant cannot do his past work,

the decision-maker must determine at step 5 whether, in

light of the claimant’s age, education, and work ex-

perience, he nevertheless can perform other work that ex-

ists in the national economy. At this final step, the

Secretary ordinarily applies the medical-vocational

guidelines that were sustained by this Court in Heckler v.

Campbell, supra. '

B. THE PROCEEDINGS IN THIS CASE

1. Respondent applied for Social Security disability

benefits and SSI benefits in October 1980 (R. 82, 86).?

After her claim was denied by the state agency, respondent

requested a hearing before an ALJ. Respondent alleged

that she was disabled on the basis of labyrinthe (inner ear)

dysfunction with occasional episodes of dizziness, loss of

visual focus, and flat feet (App., infra, 15a, 26a).

Following the hearing, the ALJ concluded that respond-

ent’s impairments were not severe and denied her claim

(App., infra, 24a-27a). The record showed that respond-

ent was 45 years old and had a high school education, two

years of business college, and real estate training (id. at

26a). From 1963 to 1977, she had been employed as a

travel agent (id. at 15a, 26a; R. 52). From September 1978

through September 1979, with interruptions due to illness,

respondent worked in real estate sales (App., infra, 15a);

she testified that “the market kind of just fell because of

the high interest rates and so I left that job in September of

1979” (R. 52). The ALJ found that “[{mlJultiple tests given

[to respondent] failed to divulge objective clinical findings

The sequence in which the severity of an impairment is considered

is somewhat different under the recently promulgated regulations

governing the evaluation of claimants who already are receiving

disability benefits. See 50 Fed. Reg. 50135-50136, 50142-50143 (1985),

adding 20 C.F.R. 404.1594(f), 416.994(b)(5). The different sequence

was adopted in order to take account of the new medical improvement

standard enacted in Section 2 of the Social Security Disability Benefits

Reform Act of 1984, Pub. L. No. 98-460, 98 Stat. 1794-1799. This

case involves a new applicant for benefits, not a current recipient, and

it therefore is governed by the regulations discussed in the text.

“R.” refers to the transcript of the administrative record that was

certified to the district court pursuant to 42 U.S.C. 405‘).

of abnormalities that support [respondent’s] severity of

the stated impairments” (App., infra, 27a), observing that

respondent was successfully pursuing a “relatively dif-

ficult” two-year community college training plan for com-

puter programming (id. at 27a-28a). In the ALJ’s view,

although the evidence revealed that respondent was not

“free from episodes of dizziness, or vision problems,” her

scholastic success, “coupled with generally negative

clinical findings” and her ability to perform various ac-

tivities, such as driving her car 80 to 90 miles a week,

demonstrated that her problems did not significantly limit

her ability to perform basic work activities (id. at 28a).°

Accordingly, the ALJ concluded that respondent had not

demonstrated the existence of a severe impairment within

the meaning of 20 C.F.R. 404.1520(c), 416.920(c), and

therefore was not disabled (App., infra, at 28a-29a).

The Appeals Council denied respondent’s request for

review (App., infra, 2la-22a), explaining that additional

psychological testing data submitted to the Appeals Coun-

cil by respondent’s representative did not undermine the

ALJ’s decison (id. at 22a):

The over-all results of the testing indicated an average

range of intellectual abilities, with no profound ir-

regularities and the majority of skills still fully intact.

Only the finger dexterity test administered showed a

degree of difficulty. The Appeals Council notes in

that regard that the limitations potentially imposed by

the difficulty you might experience in small detailed

parts dexterity does not indicate an inability to per-

form any substantial gainful activity. The weight

> The ALJ noted that Janet Mott, a vocational expert called by

respondent, had testified that respondent’s medical condition would

preclude her from working competitively, but the ALJ concluded that

the objective clinical diagnostic findings in the record did not support

the existence of an impairment of that severity and that respondent “is

exaggerating the effects of her impairments” (App., infra, 27a, 28a).

of the entire evidence of record in your case, in-

cluding the new evidence, supports the administrative

law judge’s finding that you do not have any signifi-

cant impairment of work-related abilities.

2. Respondent then sought judicial review in the

United States District Court for the Western District of

Washington pursuant to 42 U.S.C. 405(g). The case was

referred to a magistrate, who recommended that the

district court affirm the Secretary’s decision that respond-

ent had not established that she had a severe impairment

(App., infra, 15a-19a). The magistrate noted the

testimony by respondent’s vocational expert and treating

physician that her impairments were disabling, but found

that respondent’s success in the community college pro-

gram “is substantial evidence of her ability to perform

basic work activities” (id. at 17a-19a). The magistrate also

observed that this course had been sponsored by the state

Department of Vocational Rehabilitation and that re-

spondent’s counsellor at that agency had expressed the

view that respondent would have little problem in obtain-

ing employment when she completed that training (/d. at

18a). The district court adopted the magistrate’s report

and affirmed the Secretary’s decision denying respondent’s

claim (id. at 14a, 20a).

3. Thecourt of appeals reversed (App., infra, la-12a).

The court of appeals did not reach the question whether

there was substantial evidence to support the Secretary’s

decision that respondent had not demonstrated the ex-

istence of a severe impairment that significantly limited

her ability to do basic work activities. Instead, the court

heid that the regulation that permits the Secretary to deny

benefits at step 2 of the sequential evaluation process

because of the absence of a severe impairment is invalid.*

+ The court of appeals acknowledged that respondent had not

challenged the regulation in district court, but it chose to consider the

issue because it is “purely one of law” and “a significant question of

general impact” (App., infra, 4a-Sa).

The court therefore remanded the case to the Secretary to

be reconsidered without reliance on the severity regula-

tion.

a. The court of appeals recognized that under 42

U.S.C. 405(a), “Congress has delegated to the Secretary

broad power ‘to prescribe standards for applying certain

sections of the [Social Security] Act’” (App., infra, 8a,

quoting Schweiker v. Gray Panthers, 453 U.S. 34, 40

(1981)). However, the court held that the severity regula-

tion is inconsistent with 42 U.S.C. 423(d)(2)(A), which

provides that a claimant may be found to be disabled only

if his impairments “are of such severity that he is not only

unable to do his previous work but cannot, considering his

age, education, and work experience, engage in any other

kind of substantial gainful work which exists in the na-

tional economy.” The court interpreted this provision to

require the Secretary “to consider factors such as [the

claimant’s}] age, education, work experience, and ability to

do past work” in every individual disability determination,

irrespective of whether the claimant has demonstrated that

his impairment satisfies a threshold level of severity. App.,

infra, Sa, 9a. The court also held that the regulation is

contrary to judicial decisions that it construed to mandate

a two-step process, “with the claimant first showing an in-

ability to perform [his] past relevant work, and the

Secretary then showing that the claimant nevertheless re-

tains the ability to do other work” (id. at 10a).

Finally, the court of appeals rejected the Secretary’s

contention that the Social Security Disability Benefits

Reform Act of 1984 (1984 Act), supports the sequential

evaluation process (App., infra, 8a-9a). The court con-

ceded that Congress considered the severity regulation

when it enacted the 1984 Act and failed to eliminate the re-

quirement that the claimant demonstrate a severe impair-

ment. However, relying on the fact that Congress had

urged the Secretary to revise the severity criteria in order

“ “to reflect the real impact of impairments on the ability

to work’” (id. at 10a, quoting H.R. Rep. 98-618, 98th

Cong., 2d Sess. 8 (1984)), the court believed that the

legislative history did not suggest a congressional intent to

permit a finding of nondisability based on medical factors

alone (App., infra, 10a).

b. The court of appeals acknowledged in a footnote

(App., infra, 9a n.6) that the Secretary had adopted a new

Social Security Ruling, SSR 85-28 (App., infra, 37a-44a),

which reflected both the Secretary’s ongoing reevaluation

of step 2 and the Secretary’s response to concerns ex-

pressed by several courts of appeals. In SSR 85-28, the

Secretary explained that the severity regulation, which was

promulgated in 1978° and revised somewhat in 1980,° had

not been intended to alter the threshold level of impair-

ment severity that had been in effect prior to 1978. Under

the pre-1978 standard, a claimant could be found not to be

disabled on medical grounds alone (i/.e., without con-

sideration of his age, education, and work experience) if

his impairment was “a slight neurosis, slight impairment

of sight or hearing, or other slight abnormality or a com-

bination of slight abnormalities.” 20 C.F.R. 404.1502(a)

(1977). Thus, the Secretary emphasized in SSR 85-28 that

benefits are to be denied at step 2 only when an

individual’s impairments “would have no more than a

minimal effect on [his] ability to work even if the in-

dividual’s age, education, or work experience were

specifically considered” (App., infra, 41a). The court of

appeals recognized that SSR 85-28 interpreted the severity

regulation in the same manner as that approved by five

5 43 Fed. Reg. 55363, 55371 (1978), adding 20 C.F.R. 404.1503(c),

404.1504(a)(1), 416.903(c), 416.904(a)(1).

645 Fed. Reg. 55588, 55624-55625 (1980), adding 20 C.F.R.

404.1520(c), 404.1521, 416.920(c), 416.921.

other circuit courts. /d. at 8a-9a n.6.’ However, the court

expressed no view on the validity of the new ruling because

it had not then been formally published and because the

court in any event held that “the regulation it interprets is

inconsistent with the Social Security Act” (ibid.).

REASONS FOR GRANTING THE PETITION

The court of appeals has invalidated a regulation that is

aii integral part of the five-step sequential evaluation proc-

ess established by the Secretary of Health and Human

Services to facilitate the fair, efficient, and uniform

adjudication of the more than two million claims for

disability benefits that are filed each year under the Social

Security Act. The severity regulation serves an important

screening function that makes it unnecessary to engage in

a particularized vocational evaluation where a medical

assessment establishes that the claimant’s impairment is

sufficiently insubstantial that it could not reasonably be

expected to preclude all substantial gainful activity ir-

respective of the claimant’s age, education, and work ex-

perience. The principle reflected in this regulation —that a

person may denied disability benefits on the basis of

medical factors alone —has been a feature of the disability

program since its inception in 1954, and it has been en-

dorsed by Congress on several occasions since that time.

The court of appeals completely disregarded the com-

pelling legal support and practical justifications for the

regulation it invalidated. Although several other courts of

appeals also have invalidated the severity regulation, it has

been sustained by still other courts of appeals as an appro-

’ Citing Farris v. Secretary of Health & Human Services, 773 F.2d

85, 89-90 {6th Cir. 1985); Estran v. Heckler, 745 F.2d 340, 341 (Sth

Cir. 1984); Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984);

Brady v. Heckler, 724 F.2d 914, 920 (llth Cir. 1984); Chico v.

Schweiker, 710 F.2d 947, 954-955 & n.10 (2d Cir. 1983).

priate screening mechanism for claimants who have

relatively minimal impairments. This circuit conflict war-

rants resolution by this Court, especially in light of the

widespread class action litigation on this issue in the lower

courts. It is essential that the Secretary and the state agen-

cies know whether the severity regulation may be applied

to the scores of thousands of disability claims that are filed

each month.

1. As this Court observed with respect to another pro-

vision of the sequential evaluation regulations (the

medical-vocational guidelines), “Congress has ‘conferred

on the Secretary exceptionally broad authority to prescribe

standards for applying certain sections of the [Social

Security] Act’ ” (Heckler v. Campbell, 461 U.S. at 466,

quoting Schweiker v. Gray Panthers, 453 U.S. at 43).

Congress has conferred that authority in 42 U.S.C. 405(a),

which authorizes the Secretary to adopt reasonable regula-

tions to “provide for the nature and extent of the proofs

and evidence and the method of taking and furnishing the

same” in disability cases. “Where, as here, the statute ex-

pressly entrusts the Secretary with the responsibility for

implementing a provision by regulation,” a court’s review

“is limited to determining whether the regulations pro-

mulgated exceeded the Secretary’s statutory authority and

whether they are arbitrary and capricious.” Heckler v.

Campbell, 461 U.S. at 466. The severity regulation plainly

suffers from neither defect. To the contrary, the support

for the regulation in the legislative evolution of the rele-

vant statutory provisions is overwhelming.

a. The basic definition of the term “disability,”

enacted by Congress in Section 106(d) of the Social Securi-

ty Amendments of 1954, ch. 1206, 68 Stat. 1080, is the “in-

ability to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment * * *.” § The Senate and House Reports ex-

plain this definition in identical language:

There are two aspects of disability evaluation: (1)

There must be a medically determinable impairment

of serious proportions which is expected to be of

long-continued and indefinite duration or to result in

death, and (2) there must be a present inability to

engage in substantial gainful work by reason of such

impairment * * *. The physical or mental impairment

must be of a nature and degree of severity sufficient

to justify its consideration as the cause of failure to

obtain any substantial gainful work.

H.R. Rep. 1698, 83d Cong., 2d Sess. 23 (1954); S. Rep.

1987, 83d Cong., 2d Sess. 21 (1954) (emphasis added). The

first of the two “aspects” of the disability evaluation ar-

ticulated by the congressional reports strongly supports the

Secretary’s adoption of an independent threshold require-

ment that the impairment be of “serious proportions” from

a medical perspective alone. Only if that condition is met is

it necessary for the decision-maker to consider the second

aspect: whether the claimant is unable to work by reason of

“such impairment.” The second sentence quoted from the

committee reports likewise makes clear Congress’s intent

that the impairment must rise to a certain threshold level of

severity before it may even be considered as the cause of the

claimant’s alleged inability to work.

* In the 1954 amendments, Congress provided for the preservation

of the right to old age and survivor’s insurance during a period of ex-

tended disability; Congress did not then provide for the payment of

benefits to a person because of his disability. See H.R. Rep. 1698, 83d

, Cong., 2d Sess. 22-24 (1954); S. Rep. 1987, 83d Cong., 2d Sess. 20-22

(1954). The definition of the term “disability” for purposes of the 1954

amendments is contained in Section 216(i) of the Act, 42 U.S.C.

416(i). That definition was carried forward verbatim in 42 U.S.C.

423(d)(1)(A), at issue here, when Congress enacted the Title I] disabili-

ty benefits program in 1956. See Social Security Amendments of 1956,

ch. 836, § 103, 70 Stat. 815.

This congressional intent was implemented in the

regulations issued by the Secretary in 1960 to give content

to the statutory terms. As promulgated in 1960 (25 Fed.

Reg. 8100), the applicable regulation provided in pertinent

part (20 C.F.R. 404.1502(a) (1961) (emphasis added)):

Whether or not an impairment in a particular case

constitutes a disability * * * is determined from all

the facts of that case. Primary consideration is given

to the severity of the individual’s impairment. Con-

sideration is also given to such other factors as the in-

dividual’s age, education,-training and work ex-

perience. However, medical considerations alone may

justify a finding that the individual is not under a

disability where the only impairment is a slight

neurosis, slight impairment of sight or hearing, or

similar abnormality or combination. of slight abnor-

malities.

The language of the regulation remained in effect in essen-

tially identical form until 1978, when the sequential

evaluation regulations were formally adopted. See pages

3-5, supra, and pages 20-21, infra. The interpretation of

the Act reflected in the severity regulation therefore is a

consistent and longstanding one, and it accordingly is en-

titled to particular deference by the courts. Pattern

Makers v. NLRB, No. 83-1894 (June 27,1985), slip op.

19-20.

b. In 1967, Congress reexamined the operation of the

disability program and added 42 U.S.C. 423(d)(2)(A).

Pub. L. No. 90-248, § 158(b), 81 Stat. 868. The court of

appeals interpreted Section 423(d)(2)(A) to prohibit the

denial of benefits based on medical factors alone, without

consideration of the vocational factors of the claimant’s

age, education, and work experience. App., infra, Sa, 9a.

There is no support for this proposition. To the contrary,

the legislative history of the 1967 amendments demon-

strates that Congress was attempting to establish more

stringent requirements for determining disability, and that

history in fact lends additional support to the validity of

the severity regulation.

The 1967 amendments were enacted against the back-

ground of the regulations promulgated by the Secretary in

1960 to implement the basic definition of the term

“disability” in 42 U.S.C. 423(a)(1)(A). As we have ex-

plained, those regulations expressly provided that medical

considerations alone would support a finding of no

disability. 20 C.F.R. 404.1502(a) (1967). Congress in 1967

did not amend 42 U.S.C. 423(a)(1)(A) or otherwise express

its disapproval of this formal and settled administrative

construction of the term “disability.” When Congress

thoroughly reexamines a statutory program and revises

that program in certain respects, this Court has

understood Congress to have approved those aspects of

the program that it left unaltered. See Merrill Lynch,

Pierce, Fenner & Smith vy. Curran, 456 U.S. 353, 381-382

(1982). That conclusion is particularly compelling here.

In enacting the new 42 U.S.C. 423(d)(2A), Congress

added an additional condition of eligibility: Not only is the

claimant required to establish a mental or physical impair-

ment of “serious proportions” and of “a nature and degree

of severity” sufficient to justify its consideration as the

cause of an inability to perform any work, as Congress in-

tended when it enacted 42 U.S.C. 423(d) 1A) (see page

12, supra); under Section 423(d)(2,A), a claimant who

meets that requirement also must demonstrate that his

“impairment or impairments are of such severity that he is

not only unable to do his previous work but cannot. con-

sidering his age, education, and work experience, engage

in any other kind of substantial gainful work which exists

in the national economy.” 42 U.S.C. 423(d)(2,A) (em-

phasis added)). Nothing in this additional requirement

undermines the validity of the threshold requirement that

the claimant’s impairment be severe.

The legislative history confirms that Congress intended

no such departure from settled practice. The House and

Senate Reports explain the method for determining

disability that Congress contemplated when it enacted the

new statutory requirement in 42 U.S.C. 423(d)(2)(A):

The bill would provide that such an individual would

be disabled only if it is shown that he has a severe

medically determinable physical or mental impair-

ment or impairments; that if, despite his impairment

or impairments, an individual still can do his previous

work, he is not under a disability; and that if, con-

sidering the severity of his impairment together with

his age, education, and experience, he has the ability

to engage in some other type of substantial gainful

work that exists in the national economy even though

he can no longer do his previous work, he also is not

under a disability * * *.

S. Rep. 744, 90th Cong., Ist Sess. 48-49 (1967) (emphasis

added); H.R. Rep. 544, 90th Cong., Ist Sess. 30 (1967).

This description is a blueprint for the sequential evalua-

tion process subsequently adopted by the Secretary in

1978, and the emphasized passage plainly supports the re-

quirement that a claimant make a threshold showing that

his impairment is “severe” before it is necessary for the

Secretary to consider his age, education, and work ex-

perience.”

* In enacting the further restriction in 42 U.S.C. 423(d)(2)(A), Con-

gress responded to administrative and judicial developments that sug-

gested that the standard of eligibility had become too relaxed, and it

“reemphasize[d] the predominant importance of medical factors in the

disability determination.” S. Rep. 744, 90th Cong., Ist Sess. 48 (1967).

This background obviously does not support the court of appeals’

view (App., infra, Sa, 9a) that the enactment of Section 423(d)(2)(A)

was intended to prohibit the pre-existing policy of denying benefits on

the basis of medical factors alone in appropriate circumstances.

Consistent with this view, when the Secretary in 1968

promulgated comprehensive disability regulations to take

account of the 1967 amendments, he carried forward the

pre-existing authorization in 20 C F.R. 404.1502(a) (1967)

for the denial of benefits based on medical grounds alone.

33 Fed. Reg. 11749, 11750 (1968).'® At the very least, the

Secretary’s retention of this regulation was based on a per-

missible construction of the 1967 amendments and their

legislative history. Chevron U.S.A. Inc. v. NRDC, Inc.,

No. 82-1005 (June 25, 1984), slip op. 4-7.

c. In 1978, the Secretary promulgated the first version

of regulations that formally established the sequential

-valuation process for adjudicating disability claims. See

43 Fed. Reg. 55349; Heckler v. Campbell, 461 U.S. at 460.

Those regulations required the decision-maker to deter-

mine at step 2 whether the claimant’s impairment was

“severe,” and they explained that “[a] medically deter-

minable impairment is not severe if it does not significant-

ly limit an individual’s physical or mental capacity to per-

form basic work-related functions.” 43 Fed. Reg. 55363

(1978), adding 20 C.F.R. 404.1504(a)(1). The Secretary

stressed that this definition was intended to be only a

“clarification” of the prior regulation, which allowed a

claim to be denied where the claimant’s impairment was

‘© When Congress enacted the SSI program in 1972 (Pub. L. No.

92-603, § 301, 86, Stat. 1465), it incorporated into 42 U.S.C.

1382c(ay(3)(A) and (B) the definition of the term “disability” in 42

U.S.C. 423(ay(1 A) and (2)(A) (see 86, Stat. 1471-1472), without ex-

pressing any disapproval of the longstanding interpretation of those

provisions contained in the Secretary’s regulations. See S. Rep. 92-1230,

92d Cong., 2d Sess. 384 (1972). When Congress incorporates Statutory

provisions from one program into another in this manner, it is pre-

sumed to be aware of the interpretation of those provisions and to in-

tend that interpretation to be applied under the second program.

Lorillard v. Pons, 434 U.S. 575, 580-581 (1978). See also Lindahl v.

OPM, No. 83-5954 (Mar. 20, 1985), slip op. 12 & n.15; Merrill Lynch,

Pierce, Fenner & Smith v. Curran, 456 U.S. at 381-382. Congress’s ac-

tion in 1972 thus lends further support to the validity of the severity

regulation.

“slight” (43 Fed. Reg. 58353 (1978)); that “there is no in-

tention to alter the levels of severity for a finding of * * *

not disabled on the basis of medical considerations alone”

(ibid.; see also id. at 9297); and that the regulation ad-

dresses impairments that “have such a minimal effect on

the individual that they would not be expected to interfere

v .. his or her ability to work, irrespective of his or her

age, education, and work experience” (id. at 9296). The

same severity concept was carried forward again in 1980

when the Secretary thoroughly revised the disability

regulations. See 45 Fed. Reg. 55574 (1980), adding 20

C.F.R. 404.1520; 404.1521. The Secretary explained that

the more detailed provisions were expected to result in

“sreater program efficiency” by limiting the number of

cases in which it would be necessary to follow the full

vocational evaluation procedures in 20 C.F.R.

404.1545-404.1568, 416.945-416.968. See 45 Fed. Reg.

55574 (1980).

d. It was against this background that Congress

thoroughly studied the Social Security disability programs

in the early 1980’s and enacted the Social Security Disabili-

ty Benefits Reform Act of 1984. Although Congress

specifically considered the severity regulaiion and man-

dated one change in its application that is not at issue here,

Congress otherwise expressed its approval of the severity

step.

In Section 4 of the 1984 Act, Congress added a new

paragraph (C) to 42 U.S.C. 423(d)(2) and a new paragraph

(G) to 1382c(a)(3). These new paragraphs now require

consideration of the combined effect of multiple im-

pairments. 98 Siat. 1800-1801. The statutory language

Congress employed expressly refers to the severity deter-

mination at step 2 (emphasis added)):

In determining whether an individual’s physical or

mental impairment or impairments are of a sufficient

medical severity that such impairment or impairments

could be the basis of eligibility under this section, the

Secretary shall consider the combined effect of all of

the individual’s impairments without regard to

whether any such impairment, if considered separate-

ly, would be of such severity. If the Secretary does

find a medically severe combination of impairments,

the combined impact of the impairments shall be con-

sidered throughout the disability determination proc-

ess.

The first sentence of this new paragraph on its face plainly

contemplates a_ threshold determination of “medical

severity,” and the second sentence contemplates that the

subsequent steps of the “disability determination process”

(which include the steps at which the claimant’s age,

education, and work experience are considered) will be

reached only “{ijf the Secretary does find a medically

severe combination of impairments.”

If there could be any remaining doubt about Congress’s

intent in 1984 to preserve the severity step of the sequential

evaluation process, it is dispelled by the legislative history

of Section 4 of the 1984 Act. The Senate Report states:

[T]he Committee wishes to emphasize that the new

rule [requiring the consideration Of multiple im-

pairments] is to be applied in accordance with the ex-

isting sequential evaluation process and is not to be

interpreted as authorizing a departure from that proc-

ess. As the Committee stated in its report on the 1967

amendments, an individual is to be considered eligible

“only if it is shown that he has a severe medically

determinable physical or mental impairment or im-

pairments.”[{''] The amendment requires the

Secretary to determine first, on a Strictly medical

basis and without regard to vocational Jactors,

whether the individual's impairments, considered in

combination, are medically severe.

‘' See S. Rep. 744, supra, at 48, quoted at page 15, supra.

S. Rep. 98-466, 98th Cong., 2d Sess. 22 (1984) (emphasis

added). See also H.R. Rep. 98-618, 98th Cong., 2d Sess.

6-8, 14 (1984). The Conference Report also recognizes that

“fujnder current policies, if a determination is made that a

claimant’s impairment is not severe, the consideration of

the claim ends at that point” (H.R. Conf. Rep. 98-1039,

98th Cong., 2d Sess. 30 (1984)). The Conference Report

then continues (ibid. (emphasis added)):

The conferees also believe that in the interests of

reasonable administrative flexibility and efficiency, a

determination that an individual is not disabled may

be based on a judgment that an individual has no im-

pairment, or that the medical severity of his imparr-

ment or combination of impairments is slight enough

fo warrant a presumption, even without a full evalua-

tion of vocational factors, that the individual's ability

to perform SGA is not seriously af, ‘fected. The current

“sequential evaluation process” allows such a deter-

mination and the conferees do not intend to either

eliminate or impair the use of that process. The con-

ferees note that the Secretary has stated that it is her

plan to reevaluate the current criteria for nonsevere

impairments and expect that the Secretary will report

to the Committees the results of this evaluation.

Contrary to the court of appeals’ view (App., infra,

8a-9a), it is difficult to see how Congress could ™ore clear-

ly have expressed its intent in 1984 to permit continued use

of the severity step, and not to require the decision-maker

to consider the vocational factors of age, education, and

work experience at that step.'? The fact that Congress

'2 See also 130 Cong. Rec. S11458 (daily ed. Sept. 19, 1984)

(remarks of Sen. Long):

[The Conference Committee’s] language clearly indicates that

Congress envisions a sequential approach to evaluating disability.

The individual must first demonstrate the existence of an impair-

ment or combination of impairments which are sufficiently severe

recognized that the Secretary intended to reevaluate the

criteria for determining what impairments are severe

under the regulation does not authorize a court to in-

validate the regulation altogether, as the court of appeals

seemed to believe (App., infra, 10a).'3

Consistent with the text and legislative history of Sec-

tion 4 of the 1984 Act, the Secretary, in March 1985, pro-

mulgated revised versions of 20 C.F.R. 404.1520,

404.1521, 416.920, 416.921. The revised regulations take

into acccount the combined effect of multiple im-

pairments, but otherwise leave in place the Step 2 require-

from a medical standpoint as to meet the Secretary’s criteria as to

what could potentially be a disabling condition. If, and only if,

the individual meets this test, there would be further evaluation as

to whether that condition or combination of conditions does in

fact preclude him from engaging in substantial work activity in

the light of his age, education and work experience.

'> The Secretary has taken several steps in furtherance of the

reevaluation to which the Conference Committee referred. First, in

April 1985, the Secretary rescinded SSR 82-55, which had provided a

list of illustrative examples of impairments generally considered to be

nonsevere. See SSR 85-III-II, at 47 (Apr. 1985). The court of appeals

cited this ruling (App., infra, 10a-11a n.8), but without noting that it

had been rescinded. Second, in November 1985, the Secretary issued

SSR 85-28, discussed at pages 9-10, supra. SSR 85-28 emphasizes that

a finding of “not severe” is made at step 2 when “medical evidence

establishes only a slight abnormality or a combination of Slight abnor-

malities which would have no more than a minimal effect on an in-

dividual’s ability to work even if the individual’s age, education, or

work experience were specifically considered” (App., infra, 41a). in

addition, the Secretary made clea: to adjudicators resolving disability

claims at the administrative level that “[g}reat care” should be used in

applying the nonsevere concept (id. at 44a) and that denials at Step 2

are appropriate only when the medical evidence “clearly establishe[s]”

that the impact of medical impairments is minimal or Slight (id. at

42a). By these instructions, the Secretary sought to address concerns

expressed by several courts of appeals that the severity regulation had

been applied in a manner that departed from the “slight impairment”

standard (id. at 37a). See, e.g., Stone v. Heckler, 752 F.2d 1099, 1102,

1106 (Sth Cir. 1985); Baeder v. Heckler, 768 F.2d 547, 553 (3d Cir.

1985).

ment that the claimant demonstrate a medically severe im-

pairment or combination of impairments that significantly

limits his ability to perform basic work functions. 50 Fed.

Reg. 8727-8728 (1985). The Secretary concluded in pro-

mulgating the regulations that Congress intended when it

passed the 1984 Act to permit a finding of no disability to

be based solely on medical considerations. See 50 Fed.

Reg. 8726 (1985). That manifestly is a permissible inter-

pretation of Congress’s action. The severity regulation

should have been sustained by the court of appeals on this

ground alone. Chevron U.S.A. Inc. v. NRDC, Inc., slip

op. 5. But when Congress’s most recent affirmation of the

severity regulation is considered in light of the firmly en-

trenched nature of the provision in the administration of

the disability program and the solid basis for the regula-

tion in the legislative history of the 1954 and 1967 amend-

ments, the support for the regulation is overwhelming.

The court of appeals therefore clearly erred in invalidating

the regulation on its face.

2. Despite the compelling support for the validity of

the severity regulation, the Ninth Circuit is not alone in in-

validating it.'* The Seventh Circuit also invalidated the

regulation, at least as applied to certain claimants, in an

Illinois-wide class action. Johnson v. Heckler, 769 F.2d

1202 {7th Cir. 1985). Compare Bunch v. Heckler, No.

84-3102 (7th Cir. Dec. 5, 1985), slip op. 5-6 n.4. The

Secretary’s petition for rehearing en banc in Johnson was

denied by an equally divided vote (776 F.2d 166 (1985)),

and the Solicitor General has determined that a petition

'4 A district court, in a Ninth Circuit-wide class action, previously

had held the regulation invalid and enjoined its enforcement. Smith v.

Heckler, 595 F. Supp. 1173 (E.D. Cal. 1984), appeal pending, No.

85-2178 (9th Cir.). The appeal in Smith is currently under submission

to a different panel of the Ninth Circuit, which previously had ex-

pressed its intent to defer its decision pending the panel’s decision in

this case.

for a writ of certiorari will be filed to seek review of the

Seventh Circuit’s decision. The Third Circuit, in Baeder v.

Heckler, 768 F.2d 547 (1985), likewise held that the regula-

tion is invalid in its current application, although the

precise scope of the holding is unclear.'> See also Hansen

v. Heckler, No. 84-2366 (10th Cir. Feb. 5, 1986), slip op.

9-13. By contrast, the Sixth Circuit has expressly sustained

the regulation, correctly construing it to provide for the

denial of benefits to claimanis who have “slight” or

“minimal” impairments. See Salmi v. Secretary of Health

& Human Services, 774 F.2d 685, 689-692 (1985); Farris v.

Secretary of Health & Human Services, 773 F.2d 85, 89-90

(1985); Gist v. Secretary of Health & Human Services, 736

F.2d 352, 357-358 (1984). Other courts of appeals also

have recognized the validity of the regulation when con-

strued in this manner. See Garza v. Heckler, 771 F.2d

871-873 (Sth Cir. 1985); Stone v. Heckler, 752 F.2d 1099,

1101-1103, 1106 (Sth Cir. 1985); Estran v. Heckler, 745

F.2d 340, 341-342 (Sth Cir. 1984); Flynn v. Heckler, 768

F.2d 1273, 1274-1275 (11th Cir. 1985); Brady v. Heckler,

724 F.2d 914, 918-920 (11th Cir. 1984). See also Evans v.

Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984). This circuit

conflict warrants resolution by this Court.'* The wide-

spread litigation on the validity of the severity regulation

'* District courts in two class actions in the Third Circuit have read

Baeder broadly to bar the use of any severity step, even when it is

limited to the denial of claims of individuals who have only minimal

impairments. Wilson v. Heckler, No. 83-3771(D.N.J. Oct. 9, Nov. 14,

1985), appeal pending, No. 85-5814 (3d Cir.); Bailey v. Heckler, No.

83-1797 (M.D. Pa. Dec. 3, 1985), appeal pending, No. 86-5038 (3d

Cir.).

'© The First Circuit recently heard oral argument is a case brought

by an individual claimant that presents the question of the validity of

the severity regulation. Munoz v. Secretary of HHS, No. 85-1728

(argued Feb. 6, 1986). The question of the validity of the regulation

also is pending before the First, Second and Eighth Circuits on ap-

peals from district court decisions invalidating the regulation in

has caused substantial disruption in the administration of

the Social Security disability program, and it threatens

even greater disruption in light of orders in a number of

class actions requiring the reopening of past claims that

were denied in reliance on the regulation. See notes 15 &

16, supra.

The question of the validity of the severity regulation is

of broad practical significance in another respect as well.

As we have explained (see pages 17, 19, supra), the

Secretary and Congress have concluded that requirements

of administrative flexibility and efficiency justify a

preliminary screening of claimants at step 2 of the sequen-

tial evaluation process in order to determine whether their

impairments are sufficently minimal to render it un-

necessary for the state agency or the ALJ to undertake a

full vocational evaluation of the claimant, including a

specific consideration of his age, education, and work ex-

perience. Such administrative measures are essential in a

benefits program of this magnitude, and Congress has ex-

pressly vested the Secretary with authority to implement

them. See 42 U.S.C. 405(a); Heckler v. Campbell, 461

U.S. at 461 n.2 (“The need for efficiency is self-evident.”).

Moreover, the procedure for assessing the severity of

impairments is not entirely divorced from vocational con-

siderations, as the court of appeals seemed to believe

(App., infra, 9a), because the severity of an impairment

must be gauged in terms of its impact on the claimant’s

ability to perform basic work-related functions. Nor is the

procedure unfair to the claimant. Step 2 is designed to

screen out those claimants whose impairment reasonably

state-wide class actions. See McDonald v. Heckler, No. 84-2190-G (D.

Mass. Dec. 19, 1985), appeal pending (1st Cir.); Dixon v. Heckler, 589

F. Supp. 1494 (S.D.N.Y. 1984), appeal pending, No. 84-6288 (2d

Cir.); Campbell v. Heckler, No. C-84-2085 (N.D. lowa Oct. 21, Nov.

27, 1985), appeal pending, No. 86-1090NI (8th Cir.).

may be presumed not to preclude substantial gainful ac-

tivity irrespective of their age, education, and work ex-

perience, and who therefore would be found not to be

disabled at subsequent steps of the sequential evaluation

process in any event. The court of appeals failed to ap-

preciate these considerations. Its decision, which in-

validates a regulation that is applied on a nationwide basis

to scores Of thousands of disability claims each month,

plainly warrants review by this Court.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

KENNETH S. GELLER

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

ROBERT S. GREENSPAN

MARK B. STERN

Altorneys

FEBRUARY 1986

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 84-4432

D.C. No. CV 82-953M

JANET J. YUCKERT, PLAINTIFF-APPELLANT,

Vv.

MARGARET M. HECKLER, SECRETARY OF HE «TH AND

HUMAN SERVICES, DEFENDANT-APPELLEE.

Argued and Submitted

September 3, 1985—Seattle, Washington

Filed October 24, 1985

Amended January 7, 1986

Before: Eugene A. Wright, Sr. Circuit Judge,

Harry Pregerson and Arthur L. Alarcon, Circuit Judges.

Opinion by Judge Alarcon

Appeal from the United States District Court

for the Western District of Washington

Walter T. McGovern, Chief District Judge, Presiding

OPINION

ALARCON, Circuit Judge:

The Secretary of Health and Human Services denied

Janet Yuckert’s application for social security disability

benefits on the ground that she did not suffer from a

“severe impairment” within the meaning of 20 C.F.R.

§§ 404.1520(c) and 404.1521 (1985). The district court

affirmed. Yuckert now challenges the validity of the

severity regulation, 20 C.F.R. § 404.1520(c) (1985), as in-

consistent with the Social Security Act. She argues that the

regulation improperly permits the Secretary to find a

claimant not disabled based solely on medical evidence,

see id., whereas the statute requires the Secretary addi-

tionally to consider the claimant’s age, education, work

experience, and ability to do her past work, see 42 U.S.C.

§ 423(d)(2)(A). Yuckert alternatively contends that

substantial evidence does not support the Secretary’s deci-

sion and that the Administrative Law Judge (ALJ) com-

mitted legal error by failing to give proper weight to the

opinions of her treating physicians or to give proper

reason for rejecting their opinions and the testimony of

her vocational rehabilitation counselor. We find the

Secretary’s “severity” regulation invalid and reverse.

BACKGROUND AND FACTS

In October 1980, Yuckert applied for disability benefits

under Title Il of the Social Security Act. She alleged that

she had been disabled since October 1979 as a result of diz-

ziness, headaches, vision and equilibrium problems, and

flat feet. After the denial of her application both initially

and upon reconsideration. Yuckert requested a hearing

before an ALJ.

At the time of her hearing, Yuckert was forty-five years

old. She had a high school education, had completed some

college classes, and was enrolled part-time in a computer

programming training program. She worked as a travel

agent from 1963 to 1977, and sporadically as a licensed

real estate broker during 1978 and 1979, when she alleged-

ly began suffering attacks of a debilitating illness.

Yuckert testified that she had been unable to work as a

result of her illness because she has problems focusing and

refocusing her eyes, can see only word at a time, is con-

gested, lack stamina, has headaches, and must rest her

eyes every thirty minutes while reading. Her dizziness and

equibrium problems limit her ability to walk or drive: she

walks cautiously, staying close to walls or counters, and

although she drives 80 miles a week, she uses back and side

roads and drives very slowly. She requires an excessive

amount of sleep, usually taking two or more naps a day.

She attends school, but only on a part-time basis.

Both of Yuckert’s treating physicians concluded that she

was disabled. Dr. Fretwall, an allergist, diagnosed

Yuckert’s problems as a syndrome of middle ear conges-

tion. Dr. Wong, an otologist, diagnosed spontaneous

nystagmus going to the left side and bilateral labyrinthine

dysfunction. Both doctors noted that Yuckert’s problems

were not controlled by medication.

Finally, a vocational rehabilitation counselor, Mr.

Mott, testified that Yuckert was incapable of returning to

her past work and that she probably could not performing

ony other job until her condition improved. Mott had ad-

ministered a battery of vocational tests to Yuckert; she

found that the results confirmed some of Yuckert’s symp-

toms, particularly her vision problems.

The ALJ evaluated the foregoing evidence and

Yuckert’s claim under the Secretary’s disability evaluation

regulation, 20 C.F.R. § 404.1520 (1985). That regulation

provides a five-step sequential procedure for determining

disability, and allows the Secretary to find a claimant “not

disabled” without reference to the vocational factor

enumerated in the statute, 42 U.S.C. § 423(d)(2)(A). Here,

the ALJ found Yuckert not disabled at step two of the

procedure when he found that she did not suffer from a

severe impairment that significantly limited her ability to

perform basic work-related activities. See 20 C.F.R.

§ 404.1520(c) (1985). The ALJ thus did not consider

whether Yuckert could do her past work or whether she

could do any other work, considering her age, education,

and work experience.

The Appeals Council denied Yuckert’s request for

review, and the ALJ’s decison became the final decision of

the Secretary. Yuckert sought review in the district court.

The magistrate assigned to her case determined that

substantial evidence supported the determination that she

did not have a severe impairment. The district court

adopted the magistrate’s opinion and affirmed the

Secretary’s decision. Yuckert timely appeals.

DISCUSSION

Yuckert contends that the “severity” regulation, 20

C.F.R. § 404.1520(c) (1985), is invalid because it conflicts

with the language of the Social Security Act, 42 U.S.C.

§ 423(d)(2)(A), by permitting the Secretary to find a clai-

mant not disabled based solely on medical evidence,

without regard to vocational factors, such as the

claimant’s age, education, work experience, and ability to

perform past work. Yuckert raises this issue for the first

time on appeal. As a preliminary matter, we consider the

Secretary’s contention that Yuckert’s failure to challenge

the regulation below precludes her from raising the issue

here.

Generally, we will not consider an argument on appeal

if the parties failed to raise it below. Abex Corp. v. Ski’s

Enterprises, Inc., 748 F.2d 513, 516 (9th Cir. 1984); Rain-

bow Pioneer No. 44-18-04A v. Hawaii-Nevada Investment

Corp., 711 F.2d 902, 905 (9th Cir. 1983). Nevertheless, we

recognize an exception to this rule where the issue on

appeal is purely one of law that is both central to the case

and important to the public. Abex Corp., 748 F.2d at 516;

In re Sells, 719 F.2d 985, 990 (9th Cir. 1983). Here, our

consideration of the issue will not require the parties to

develop new facts; moreover, the validity of the severity

regulation presents a significant question of general im-

pact. See Jn re Howell, 731 F.2d 624, 627 (9th Cir.), cert.

denied, 105 S.Ct. 330 (1984). Thus, we exercise our discre-

tion to consider the issue in spite of Yuckert’s failure to

raise it in the district court. See Chico v. Schweiker, 710

F.2d 947, 952 (2d Cir. 1983).

A. The Validity of the Regulation

The Social Security Act provides that certain individuals

who are “under a disability” shall receive disability

benefits. 42 U.S.C. § 423(a)(1)(D).' The Act defines

disability as the “inability to engage in any substantial

gainful activity by reason of any medically determinable

physical or mental impairment which. . . can be expected

to last for a continuous period of not less than 12

months.” 42 U.S.C. § 423(d)(1)(A). The Act further pro-

vides that a claimant will be found disabled only if his im-

pairment(s) “are of such severity that he is not only unable

to do his previous work but cannot, considering his age,

education, and work experience, engage in any other kind

of substantial gainful work which exists in the national

economy. . .” 42 U.S.C. § 423(d)(2)(A). Thus, on its face,

the statute contemplates that the Secretary will consider

both medical and vocational factors in awarding benefits.

See Delgado v. Heckler, 722 F.2d 570, 572-573 (9th Cir.

1983) (discussing 42 U.S.C. §§ 1282c(a)(3)(A) and (B),

which contain definitions of disability identical to 42

U.S.C. §§ 423(d)(1)(A) and (d)(2)(A)).

' The Act’s requirements concerning insured status and retirement

age are not at issue here. See 42 U.S.C. § 423(a)(1).

Nevertheless, in 1978, the Secretary promulgated a

regulation pursuant to her rulemaking authority under 42

U.S.C. § 405(a) which permits her to determine disability

without reference to.the vocational factors set forth in 42

U.S.C. § 423(d)(1)(A). See 20 C.F.R. § 404.1520(c) (1985)

(original version at 20 C.F.R. § 404.1503 (1979)).2 Under

this regulation, the ALJ follows a five-step sequential

analysis for evaluating disability. /d.; Key v. Heckler, 754

F.2d 1545, 1548 (9th Cir. 1985). If the ALJ finds the

claimant not disabled at any step in the evaluation, he does

nut consider the remaining steps. 20 C.F.R. § 404.1520(a)

(1985); Stone v. Heckler, 752 F.2d 1099, 1100 (Sth Cir.

1985).

The first step requires the ALJ to determine whether the

claimant is currently working. 20 C.F.R. § 404.1520(b)

(1985). If the claimant is working, the ALJ must find her

not disabled. /d. If the claimant is not working, however,

the second step requires the ALJ to determine whether

the claimant suffers a severe impairment. 20 C.F.R.

§ 404.1520(c) (1985). The regulations define a severe im-

pairment as one that significantly limits the claimant’s

“ability to do basic work activities.” 20 C.F.R.

§ 404.1521(a) (1985). Basic work activities mean “the

abilities and aptitudes necessary to do most jobs.” 20

C.F.R. § 404.1521(b) (1985). The ALJ must evaluate the

? Neither the 1980 amendment nor the 1985 amendment tc the

regulation alters our substantive analysis.

’ The regulation gives examples of such activities, including:

(1) Physical functions such as walking, standing, sitting, lifting,

pushing, pulling, reaching, carrying, cr handling.

(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering simple instruc-

LIONS;

(4) Use of judgment;

(5) Responding appropriately to supervision, co-workers and usual

work situations; and

(6) Dealing with changes in a routine work setting.

20 C.F.R. § 404.1521(b) (1985).

severity of an impairment without reference to vocational

factors. 20 C.F.R § 404.1520(c) (1985).* Only if the ALJ

finds the claimant’s impairment(s) severe does he proceed

to the next three steps of the sequential analysis, under

which he is required to consider the claimant’s age, educa-

tion, work experience, and ability to perform past work.

See 20 C.F.R. § 404.1520(d)-(f) (1985).°

The Secretary contends that the second step of this se-

quential analysis is valid because it promotes efficiency

without violating the provisions of the Social Security Act.

She specifically argues that: (1) the regulation is entitled to

great deference because it was properly promulgated pur-

suant to her authority under 42 U.S.C. § 405S(a); (2) re-

quiring the ALJ to determine whether the claimant’s im-

pairment is severe before considering vocational factors is

consistent with the express language of the Act; and (3) the

legislative history of the Act, in particular Congress’

* The second step, here challenged, provides in full:

pairment or combination of impairments which significantly limits

your physic! or mental ability to do basic work activities, we will find

that you do not have a severe impairment and are, therefore, not

disabled. We will not consider your age, education, and work ex-

perience. However, it is possible for you to have a period of disability

for a time in the past even though you do not have a severe impair-

ment.

20 C.F.R. § 404.1520(c) (1985).

> Under the third step, the ALJ considers whether the impairment

equals one of the listed impairments found in Appendix | of the

regulations. 20 C.F.R. § 404.1520(d) (1985). If the impairment is

listed, che ALJ must find the claimant disabled. /d. If the impairment

is not listed, however, the fourth step requires him to ascertain

whether the claimant can do past relevant work. 20 C.F.R.

§ 404.1520(e) (1985). Finally, the fifth step, reached only if the claim-

amt cannot perform past work, dictates that the ALJ evaluate whether

the claimant can do any other work, given her age, education, and

work experience. 20 C.F.R. § 404.1520(f) (1985).

failure to eliminate the “severity regulation” in the 1984

Amendment, supports her position with respect to the

regulation.

We agree with the Secretary that we must accord

deference to her interpretation of the Act. Key v. Heckler,

754 F.2d 1545, 1552 (9th Cir. 1985); see Schweiker v. Gray

Panthers, 453 U.S. 34, 43 (1981); Batterton v. Francis, 432

U.S. 416, 426 (1977). Congress has delegated to the

Secretary broad power “to prescribe standards for apply-

ing certain section of the [Social Security] Act.” Gray Pan-

thers, 453 U.S. at 43; 42 U.S.C. § 405(a). Nevertherless,

the Secretary’s power is not unlimited; the regulations she

enacts must be consistent with the provisions of the Act,

42 U.S.C. § 405(a), and “cannot supersede the language

chosen by Congress.” Mohasco Corp. v. Silver, 447 U.S.

807, 825 (1980). Thus, we will declare the regulation in-

valid if we find that the Secretary exceeded her Statutory

authority or if the regulation is arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law. Key, 754 F.2d at 1552; see Heckler v. Campbell, 461

U.S. at 466; Batterton v. Francis, 432 U.S. at 426.

This circuit has previously noted the apparent “lack of

symmetry” between the Secretary’s severity regulation and

the provisions of the Social Security Act. Key v. Heckler,

754 F.2d 1545, 1552 (9th Cir. 1985); Delgado v. Heckler,

722 F.2d 570, 574 (9th Cir. 1983). Although we have

previously declined to rule on the validity of the sequential

procedure, we now find, along with the Third and Seventh

Circuits, that the regulation violates the Act because it

does not permit the individualized assessment of disability

required by the Act.* See Johnson v. Heckler, 769 F.2d

® Several circuits have upheld the severity regulations by construing

the threshold severity showing as a “de minimis” requirement. See,

¢.g., Farris v. Secretary of Health and Human Services, No. 84-5808,

slip op. at 8 (6th Cir. September 18,1985); Estran v. Heckler, 745 F.2d

340, 341 (Sth Cir. 1984); Evans v_ Heckler, 734 F.2d 1012, 1014 (4th

1202, 1210-13 (7th Cir. 1985); Baeder v. Heckler, 768 F.2d

$47, 551-53 (3d Cir. 1985); Dixon v. Heckler, 589 F.Supp.

1494 1502-06 (S.D.N.Y. 1984). See also Heckler v. Camp-

bell, 461 U.S. at 467 (discussing the statutory scheme for

individual determinations).

First, as we have noted, the regulation, on its face, con-

flicts with the language of the statute that requires the

Secretary, in determining disability, to consider factors

such as age, education, work experience, and ability to do

past work. 42 U.S.C. § 423(d)(2MA). See Delgado, 722

F.2d at 574; Johnson, 769 F.2d at 1212; Baeder, 768 F.2d

at 551. We find the Secretary’s argument that the regula-

tion is not inconsistent with this language or the statutory

purpose belied by the express statutory requirement that

both medical and vocational factors be considered in

determining disability.

Second, we reject the Secretary’s contention that the

legislative history of the Act, particularly the 1984 Amend-

ment, supports the sequential evaluation process.

Although Congress apparently considered the severity

regulation when enacting the 1984 ..mendment, we agree

with the Seventh Circuit that Congress did not endorse the

Secretary’s application of the regulation. See Johnson, 769

F.2d at 1211-12. Rather Congress was “concerned” that

the Secretary was not “using criteria that clearly reflect the

Cir. 1984); Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984) (per

curiam); Chico v. Schweiker, 710 F.2d 947, 954-55 & n.10 (2d Cir.

1983).

The government has submitted as supplemental authority a new

Social Security Ruling which attempts to clarify policy on step two of

the sequential process. The ruling was signed September 17 and has

not yet been published. We note, however, that it adopts the “slight

abnormality” or “de minimis” interpretation taken by at least five of

the circuits. We express no view as to the validity of the new ruling

because it is unpublished and because we hold that the regulation it in-

terprets is inconsistent with the Social Security Act.

10a

intent of Congress that all those who are unable to work

receive benefits.” H.R. Rep. No. 618, 98th Cong., 2d Sess.

7, reprinted in 1984 U.S. Code Cong. & Ad. News 3038,

3044-45. Although failing to eliminate the “severe impair-

ment” requirement in the regulation, Congress urges the

Secretary to revise her criteria “to reflect the real impact of

impairments on the ability to work.” Jd. at 3045. See also

Johnson, 769 F.2d at 1211-12 (containing a fuller discus-

sion of the legislative history). The legislative history does

not suggest that Congress intended to permit findings of

non-disability based on medical factors alone. Baeder, 768

F.2d at 551-52.’

Third, the regulation ignores the long-established prece-

dent of this and other circuits that disability determina-

tions be made according to a two-step process, with the

claimant first showing an inability to perform past

revelant work, and the Secretary then showing that the

claimant nevertheless retains the ability to do other work.

See, e.g., Valencia v. Heckler, 751 F.2d 1082, 1086 (9th

Cir. 1985); Francis v. Heckler, 749 F.2d 1562, 1564 (11th

Cir. 1985); Channel v. Heckler, 747 F.2d 577, 579 (10th

Cir. 1984) (per curiam); Whitney v. Schweiker, 695 F.2d

784, 786 (7th Cir. 1982); Hall v. Secretary of Health,

Education & Welfare, 602 F.2d 1372, 1375 (9th Cir.

1979).* Because the severity regulation ignores vocational

” The absence of support for the Secretary’s position in either the

Statute or the legislative history is fatal to her claim that the severity

regulation promotes efficiency. As the Seventh Circuit correctly con-

cluded: “[E]fficiency arguments provide absolutely no basis for the

Secretary to violate Congressional mandates to implement properly

the disability benefits program of this nation.” Johnson y. Heckler,

769 F.2d at 1213.

* Indeed, the Secretary has issued a ruling, binding on all Social

Security Administration personnel, that specifically states that

disability benefits may be denied “even though [the impairment] may

prevent the individual from doing work that the individual has done in

the past.” Social Security Ruling 82-56. In another ruling, the

lla

factors where a claimant’s impairment is found non-

severe, the regulation conflicts with this precedent and

thus improperly denies benefits to a claimant who has

made a prima facie showing of disability. See Johnson,

769 F.2d at 1210; Baeder, 768 F.2d at 553.?

In light of our legal conclusions and considering the

specific facts of Yuckert’s case, we hold that the severity

regulation, 20 C.F.R. § 404.1520(c) (1985), is inconsistent

with the Social Security Act and, therefore, is invalid.

B. Substantial Evidence and Legal Error

Because we find that the ALJ based his decision on an

invalid regulation, we need not decide whether substantial

evidence supports the Secretary’s finding of no severe im-

pairment. Moreover, because the ALJ will have to recon-

sider the evidence without regard to the severity regulation

and issue a new opinion, we need not determine whether

he gave proper weight to the opinions of Yuckert’s treating

physicians or whether he gave proper reasons for rejecting

their opinions and the testimony of her vocational

rehabilitation counselor.

C INCLUSION

We hold that the “severity regulation,” 20 C.F.R.

§ 404.1520(c) (1985), is inconsistent with the provisions of

the Social Security Act and is therefore invalid. Accord-

ingly, we reverse the decision of the district court and

Secretary established a list of impairments that will be considered per

se non-severe under step two of the severity regulation. Social Security

Ruling 82-55.

% Interestingly, the Third Circuit in Baeder notes that the Secretary

denied benefits to 40.3 percent of disability applicants without any

evaluation of their age, education, or past work experience. Baeder,

768 F.2d at 552.

12a

remand with instructions that the Secretary reevaluate

Yuckert’s claim without reference to the severity regula-

tion, 20 C.F.R. § 404.1520(c) (1985).

REVERSED AND REMANDED.

13a

APPENDIX B

JUDGMENT

United States Court of Appeals

FOR THE NINTH CIRCUIT

No. 84-4432

CV 82-953M

JANET J. YUCKERT, PLAINTIFF-APPELLANT,

Vv.

MARGARET M. HECKLER, DEFENDANT-APPELLEE.

APPEAL from the United States District Court for the

_ District of _

THIS CAUSE came on to be heard on the Transcript of

the Record from the United States District Court for the

WESTERN District of WASHINGTON (SEATTLE) —__

ren - es and was duly submitted.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court, that the

judgment of the said District Court in this Cause be, and

hereby is REVERSED & REMANDED.

Filed and entered OCTOBER 24, 1985

l4a

APPENDIX C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

Case No. C82-953M

JANET J. YUCKERT, PLAINTIFF,

MARGARET M. HECKLER, SECRETARY OF HEALTH AND

HUMAN SERVICES, DEFENDANT.

ORDER

The Court has reviewed the entire record, including the

administrative record, the memoranda of the parties, and

the Repert and Recommendation of United States

Magistrate John L. Weinberg. It is therefore ORDERED:

(1) The Court adopts the Report and Recommendation;

(2) The Court affirms the decision of the Secretary of

Health and Human Services; and

(3) The Clerk shall direct copies of this order to all

counsel and to Magistrate Weinberg.

Dated this 24th day of Oct. 1984.

/S/ WALTER T. MCGOVERN

Chief United States District Judge

1Sa

APPENDIX D

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

Case No. C82-953M

JANET J. YUCKERT, PLAINTIFF,

MARGARET M. HECKLER,* SECRETARY OF HEALTH AND

HUMAN SERVICES, DEFENDANT.

BASIC DATA

Type of benefits sought:

(x) Disability Insurance

(x) Supplemental Security Income — Disability

( ) Other:

Plaintiff's:

Sex: Female

Age (as of hearing before ALJ): 45

Principal Disability(s) Alleged by Plaintiff:

(1) Bilateral labyrinthine dysfunction, resulting in

dizziness, vision impairment (inability to focus),

and severe headaches.

(2) Feet —bad arches.

Disability Allegedly Began: January 2, 1980.

Principal Previous Work Experience (with dates or

duration):

(1) Travel Agent, 1963-1977

(2) Real Estate Sales, 9/78-9/79 (with interruptions

for illness)

* Substitution of defendant, pursuant to F.R.Civ. P. 25(d)

| l6a

(3) Part-time job with United Parcel Service, one

week in 11/79

Plaintiff Last Worked (Date): 11/79

Education Level Achieved by Plaintiff: High school

graduate, various college courses

Is there any issue as to whether plaintiff has sufficient

quarters of work to be eligible for benefits? No.

PROCEDURAL HISTORY — ADMINISTRATIVE

Before ALJ:

Date of Hearing (if any): 9/9/81

Date of Decision : 12/22/81

Appears in record at : R. 21-25

Summary of Decision : Plaintiff does not have a

“severe impairment.” No objective medical findings

substantiate the symptoms of which she complains.

Her successful participation in college computer

courses reinforces this conclusion.

Before Appeals Council:

Date of Decision : 6/25/82

Appears in record at : R. 4-5

Summary of Decision : Affirmed decision of ALJ.

Difficulty in small detailed parts dexterity does not

preclude any substantial gainful activity.

PROCEDURAL HISTORY —THIS COURT

Jurisdiction based upon: (x) 42 U.S.C. § 405(g)

( ) Other:

Brief of Merits submitted by (x) Plaintiff (x) Secretary.

Oral Argument (x) Not requested ( ) Conducted on

RECOMMENDATION OF

UNITED STATES MAGISTRATE

Affirm the ALJ’s determination that plaintiff has not

established the existence of a “severe impairment.”

17a

DISCUSSION

In determining plaintiff’s disability claim, the Secretary,

and the court, are required to apply the sequential analysis

described in 20 C.F.R. § 404.1520.

Plaintiff is not working, and has no. worked since

November, 1979. School attendance is generally not con-

sidered to be “substantial gainful activity.” § 404.1572(c).

It is plaintiff's burden, however, to establish that she

has a “severe impairment” i.e., an impairment which

significantly limits her physical or mental ability to do

basic work activities.-§ 404.1520(c).

The regulations define “basic work activities” as:

“ .. the abilities and aptitudes necessary to do most

jobs. Examples of these include —

(1) Physical functions such as walking, standing,

sitting, lifting, pushing, pulling, reaching, carrying,

or handling;

(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering

simple instructions;

(4) Use of judgment;

(5) Responding appropriately to supervision, co-

workers and usual work situations; and

(6) Dealing with changes in a routine work

setting.”

§ 404.1521(b).

In finding that plaintiff did not suffer from a severe im-

pairment, the Secretary in essence found that her impair-

ment did not significantly limit her physical and mental

abilities to do “basic work activities.” This court must

determine whether there is substantial evidence to support

that conclusion.

The evidence is conflicting on this point. Perhaps the -

strongest support for the Secretary’s conclusion is that

plaintiff was successfully participating in a course of study

18a

in computer programming at a community college. This

course required her to spend three hours per day in class,

five days per week. Each day after concluding her classes

and a nap, she devotes six to eight hours of homework,

ending about midnight. (R. 48-9)

Plaintiff's success in this Program is substantial evidence

of her ability to perform basic work activities. This con-

clusion is reinforced by the observations of her counsellor

at the Department of Vocational Rehabilitaton of the

State of Washington. “DVR” Suggested and sponsored the

community college course of Study for plaintiff. While

thoroughly familiar with plaintiff's impairments, her

counsellor expressed the view that, once trained, she will

have little problem in obtaining employment.

“DVR thinks that the training is appropriate for Janet

in all areas: 1) capabilities, 2) interests and most im-

portantly, 3) within her medical limitations.” (R

192-3}.

While this determination by another

means. conclusive, it is evidence su

consistent conclusion.

The record also includes a “functional assessment” ap-

parently completed and signed by a Dr. Joseph Robin (R.

188). Dr. Robin concluded there were very few limitations

upon plaintiff's ability to perform basic work activities. It

is not clear from the record, however, who Dr. Robin is,

whether he ever examined plaintiff, and what was the basis

for his conclusions.

On the other hand, Dr. Wong, plaintiff's treating physi-

cian, concluded that her impairment was incapacitating,

and that she would be disabled for an indefinite period of

time. (R. 160). Dr. Janet Mott, a vocational expert, ad-

ministered a battery of tests to plaintiff. Ms. Mott con-

cluded plaintiff would not be employable until her condi-

tion improved. (R. 72-80).

agency is by no

Pporting the Secretary’s

19a

The record therefore contains conflicting evidence as to

whether plaintiff suffers from a severe impairment. It is

the function of the Secretary, however, not of this court,

to weigh that evidence and to resolve the issue. Because

there is substantial evidence in support of the Secretary’s

conclusion, this court is required to affirm her determina-

tion. .

A proposed order accompanies this Report and Recom-

mendation.

DATED this 9 day of May, 1984.

/s/ JOHN L. WEINBERG _

John L. Weinberg

United States Magistrate

20a

APPENDIX E

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CASE NO. C82-953M

JANET J. YUCKERT, PLAINTIFF,

MARGARET M. HECKLER, SECY.,

HEALTH & HUMAN SERVICES, DEFENDANT.

JUDGMENT

This matter having come on for consideration before

the Court, Honorable Walter T. McGovern, Chief United

States District Judge, presiding, and the issues having been

duly considered and a decision having been duly rendered,

IT IS HEREBY ORDERED AND ADJUDGED, that

the decision of the Secretary is hereby affirmed.

DATED this 25th day of October, 1984.

Deputy United States District Clerk

2la

APPENDIX F

DEPARTMENT OF HEALTH

& HUMAN SERVICES Social Secr'rity Administration

Refer to: Office of Hearings and Appeals

SCC PO Box 2518

§31-34-8353 Washington DC 20013

June 25, 1982

ACTION OF A.PPEALS COUNCIL ON REQUEST

FOR REVIEW

Ms. Janet L. Yuckert

13725 56th Ave., S., 1207

Seattle, WA 98168

Dear Ms. Yuckert:

Re: Your Claims for Disability Insurance Benefits and

Supplemental Security Income

The request for review of the hearing decision in your

case has been considered.

Sections 404.970 and 416.1470 of Social Security Ad-

ministration Regulations Nos. 4 and 16 (20 CFR 404.970

and 416.1470) provide that the Appeals Council will grant

a request for review of a hearing decision where: (1) there

appears to be an abuse of discretion by the administrative

law judge; (2) there is an error of law; (3) the ad-

ministrative law judge’s action, findings, or conclusions

are not supported by substantial evidence or (4) there is a

broad policy or procedural issue which may affect the

general public interest. These sections also provide that

where new and material evidence is submitted with the re-

quest for review, the entire record will be evaluated and

22a

review will be granted where the Appeals Council finds

that the administrative law judge’s action, findings, or

conclusion is contrary to the weight of the evidence cur-

rently of record.

The Appeals Council has concluded that there is no

basis under the above regulations for granting the request

for review. Accordingly, your request is denied and the

héaring decision stands as the final decision of the

Secretary in your case.

In reaching this conclusion, the Appeais Council has

considered the multiple psychological testing data submit-

ted by your representative in-Ex. AC-2 conjunction with

your request for review. The various testing devices were

utilized by the vocational expert in her evaluation of your

vocational capabilities. The over-all results of all the

testing indicated an average range of intellectual abilities,

with no profound irregularities and the majority of skills

still fully intact. Only the finger dexterity test administered

showed a degree of difficulty. The Appeals Council notes

in that regard that the limitations potentially imposed by

the difficulty you might experience in small detailed parts

dexterity does not indicate an inability to perform any

substantial gainful activity. The weight of the entire

evidence of record in your case, including the new

evidence, supports the administrative law judge’s finding

that you do not have any significant impairment of work-

related abilities.

The Appeals Council has also carefully considered each

of the contentions raised by your representative in his brief

of April 5, pg. 7-17 1982. The Appeals Council believes

that the administrative law judge’s decision was based on

substantial evidence in the record, and that the ad-

ministrative law judge did consider all the evidence of

record in reaching his decision. The Appeals Council sees

no reason to grant your request for review.

23a

If you desire a court review of the hearing decision, you

may commence a civil action in the district court of the

United States in the judicial district in which you reside

within sixty (60) days from the date of receipt of this letter.

It will be presumed that this letter is received within five

(5) days after the date shown above unless a reasonable

showing is otherwise made. See sections 205(g) and

1631(c)(3) of the Social Security Act, as amended (42

U.S.C.(g) and 1383(c)(3)) and section 422.210 of Social

Security Administration Regulations No. 22 (20 CFR

422.210).

If a civil action is commenced, your complaint should

name the Secretary of Health and Human Services as the

deicndant and should include the Social Security

number(s) shown at the top of this notice.

Sincerely yours,

Lawrence Weiner

Member, Appeals Council

cc:

James A. Douglas, Esq.

Seattle, WA 98104

HO, Seattle, WA (ALJ Sode)

24a

APPENDIX G

DEPARTMENT OF

HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

DECISION

In the case of Claim for

Janet L. Yuckert Period of Disability,

Disability Insurance

Benefits and Supple-

mental Security Income

(Claimant)

531-34-8353

(Wage Earner) (Leave (Social Security Number)

blank if same as above)

This case is before the Administrative Law Judge ona

request for hearing.

ISSUES

The general issues before the administrative law judge

are whether the claimant is entitled to a period of disability

and to disability insurance benefits under sections 216(i)

and 233, respectively, of the Social Security Act; and

whether the claimant is disabled under section 1614(a)(3)

of the Social Security Act. The specific issues are whether

the claimant was under a “disability” as defined in the Act

and, if so, when such “disability” commenced and the

25a

duration thereof; and whether the special earnings re-

quirements of the Act are met for the purpose of entitle-

ment to a period of disability and disability insurance

benefits.

LAW AND REGULATIONS

Section 216(i) of the Social Security Act provides for the

establishment of a period of disability, and section 223 of

the Act provides for the payment of disability insurance

benefits where the requirements specified therein are met.

Section 223(d)(1) and 1614(a)(3)(A) of the Social Securi-

ty Act (42 U.S.C. 423(d)(1) and 42 U.S.C. 1382c(a)(3)(A))

define disability as the inability to “engage in any substan-

tial gainful activity by reason of any medically deter-

minable physical or mental impairment which can be ex-

pected to result in death or which has lasted or can be ex-

pected to last for a continuous period of not less than 12

months... .”

Sections 223(d)(3) and 1614(a)(3)(C) of the Act define a

“physical or mental impairment” as “an impairment that

results from anatomical, physiological, or psychological

abnormalities which are demonstrable by medically ac-

ceptable clinical and laboratory diagnostic techniques.”

Sections 404.1520(c) and 416.920(c)) of Social Security

Administration Regulations Nos. 4 and 16, respectively,

(20 CFR 404.1520(c) and 416.920(c)) provide that if an in-

dividual does not have any impairments which significant

limit physical or mental ability to do basic work activities,

a finding shall be made that the individual does not have a

severe impairment and, therefore, is not disabled

regardless of age, education, and work experience.

Regulations 404.1521(b) and 416.921(b) (20 CFR

404.1521(b) and 416.921(b)) define basic work activities to

mean the abilities and aptitudes necessary to do most jobs.

Examples of these abilities and aptitudes include physical

26a

functions such as walking, standing, sitting, lifting,

pushing, pulling, reaching, carrying, or handling;

capacities for seeing, hearing, and speaking; understand-

ing, carrying out, and remembering simple instructions;

use of judgement; responding appropriately to supervi-

sion, co-workers, and usual work situations; and dealing

with changes in a routine work setting.

EVIDENCE CONSIDERED

The Administrative Law Judge has carefully considered

all the testimony at the hearing, the arguments made, and

ihe documents described in the List of Exhibits attached to

this decision.

EVALUATION OF THE EVIDENCE

This 45 year old travel agent with a high school educa-

tion, 2 years of business college and real estate training

alleges she has been unable to work since October 9, 1979,

due to a combination of impairments including dizziness,

vision loss and foot problems.

Her duties included writing airline tickets, planning

travel schedules, making travel facilities reports and she

used office mackines in performing these duties for 15

years.

The objective diagnostic clinical findings are imprecise

in this case. Dr. Marsha Fretwell of the allergy clinic at the

Harborview Medical Center diagnosed her problems as

non-specific congestion of the nasal and middle ear muc-

ous membranes.

Otologist, Dr. Matthew L. Wong, diagnosed her prob-

lems of dizziness and focusing as most likely labyrinthine

in Origin and bilateral. She has a spontaneous nyatagmus

going to the left side. X-rays of the internal auditory

canals, electronystagmogram and brain stem evoked

27a

response and audiometry were normal. She was extensive-

ly worked up by the Public Health Hospital and they did

not feel she had multiple sclerosis. (Exhibit 23)

Multiple tests given, though claimant failed to divulge

objective clinical findings of abnormalities that support

the claimant’s severity of the stated impairments for 12

continuous months. X-rays of her internal auditory canal

revealed no abnormality. Her EKG was aormal. Skull

X-rays were normal and a spinal puncture was not infor-

mative. (Exhibits 17 and 19)

The claimant testified she has a tendency to fall to the

right, but catches herself and has never fallen. She can not

stand more than three quarters of an hour at one time. She

drives her car 80 to 90 miles a week.

In January 1981, the claimant commenced a 2 year com-

munity college training plan for computer programming.

She successfully completed 11 credit hours that quarter

and is currently continuing that course on a half day basis.

Vocational Expert, Janet Mott, testified that claimant is

within the average range of intelligence, has a 12th grade

educational skills and an above average memory. The clai-

mant has poor eye/hand coordination, poor concentration

and is operating under a great deal of stress.

Although Dr. Mott concluded the claimant’s medical

condition would preclude her from working competiteve-

ly, the objective clinical diagnostic findings of record do

not support the conclusion that the claimant is “disabled”.

Symptoms alone do not establish there is a physical or

mental impairment. Medical signs of findings should be

accompanied by a medical condition that could reasonably

be expected to produce the symptoms.

The claimant failed to produce substantial medical

evidence to support a finding that her physical abilities to

do basic work activities were significantly limited.

Although she alleges that her activities have been

somewhat reduced she is successfully completing a

28a

relatively difficult higher education course learning the

language of computers. This achievement, coupled with

generally negative clinical findings, her activities, e.g.,

driving her car, visiting with friends, all indicate to the

undersigned that claimant’s vision and balance problems

are not severely physically restrictive as defined by Section

404.1521, Regulations No. 4 of 20 CFR.

This is not to say that the claimant is free from episodes

of dizziness, or vision problems, but that the greater

weight of the evidence fails to establish she suffers from a

severe condition, and in accordance with the Social Securi-

ty Act and Regulations promulgated by the secretary may

not be considered to be “disabled.” Claimant appears to be

overemphasizing the effect of her impairments on her

ability to perform basic functions.

FINDINGS

After careful consideration of the entire record, the Ad-

ministrative Law Judge makes the following findings:

1. The claimant meet the special earnings re-

quirements through the date of this decision.

2. Claimant alleges labyrinth with occasional episodes

of dizziness and loss of focus; and flat feet.

3. Claimant is exaggerating the effects of her im-

pairments.

4. The claimant’s medical condition does not

significantly limit her ability to perform basic work-

related functions, e.g., real estate salesperson.

5. Claimant does not have any impairment or im-

pairments which significantly limit her ability to

perform basic work-related functions; therefore she

does not have a severe impairment.

6. Since the claimant does not have a severe impair-

ment, she may not be considered “disabled” within

the meaning of the Social Security Act, as amended.

29a

DECIS!ON

It is the decision of the Administrative Law Judge that

based on her applications of October 23, 1980, the clai

mant is not entitled to a period of disability or to disability

insurance benefits under sections 216(i) and 223, or to

Supplemental Security Income, under Section 1611,

respectively, of the Social Security Act, as amended.

/s/ WILLIAM T. SODE_

William T. Sode

Administrative Law Judge

DATED December 22, 1981

30a

APPENDIX H

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

1. Section 223(d)(1)(A) and (2)(A) of the Social Securi-

ty Act, as codified at 42 U.S.C. 423(d)(1)(A) and (2)(A),

provides:

(d) “Disability” defined

(1) The term “disability” means —

(A) inability to engage in any substantial gainful acitivi-

ty by reason of any medically determinable physical or

mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a

continuous period of not less than 12 months; * * *

* * * * *

(2) For purposes of paragraph (1)(A)—

(A) an individual (except a widow, surviving divorced

wife, or widower for purposes of section 402(e) or (f) of

this title) shall be determined to be under a disability only

if his physical or mental impairment or impairments are of

such severity that he is not only unable to do his previous

work but cannot, considering his age, education, and

work experience, engage in any other kind of substantial

gainful work which exists in the national economy,

regardless of whether such work exists in the immediate

area in which he lives, or whether a specific job vacancy

exists for him, or whether he would be hired if he applied

for work. For purposes of the preceding sentence (with

respect to any individual), “work which exists in the na-

tional economy” means work which exists in significant

numbers either in the region where such individual lives or

in several regions of the country.

3la

2. Section 1614(a)(3)(A) and (B) of the Social Security

Act, as codified at 42 U.S.C. 1382c(a)(3)(A) and (B), pro-

vides:

(3)(A) An individual shall be considered to be disabled

for purposes of this subchapter if he is unable to engage in

any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be

expected to last for a continuous period of not less than

twelve months (or, in the case of a child under the age of

18, if he suffers from any medically determinable physical

or mental impairment of comparable severity).

(B) For purposes of subparagraph (A), an individual

shall be determined to be under a disability only if his

physical or mental impairment or impairments are of such

severity that he is not only unable to do his previous work

but cannot, considering his age, education, and work ex-

perience, engage in any other kind of substantial gainful

work which exists in the national economy, regardless of

whether such work exists in the immediate area in which

he lives, or whether a specific job vacancy exists for him,

or whether he would be hired if he applied for work. For

purposes of the preceding sentence (with respect to any in-

dividual), “work which exists in the national economy”

means work which exists in significant numbers either in

the region where such individual lives or in several regions

of the country.

3. Section 223(d)(2)(C) of the Social Security Act, as

added by Section 4(a)(1) of the Social Security Disability

Benefits Reform Act of 1984, Pub. L. No. 98-460, 98 Stat.

1800, provides:

“(C) In determining whether an individual’s physical or

mental impairment or impairments are of a sufficient

medical severity that such impairment or impairments

could be the basis of eligibility under this section, the

Secretary shall consider the combined effect of all of the

32a

individual’s impairments without regard to whether any

such impairment if considered separately, would be of

such severity. If the Secretary does find a medically severe

combination of impairments, the combined impact of the

impairments shall be considered throughout the disability

determination process.”.

4. Section 1614 (a)(3)(G) of the Social Security Act, as

added by Section 4(b) of the Social Security Disability

Benefits Reform Act of 1984, Pub. L. No. 98-460, 98 Stat.

1800, provides:

“(G) In determining whether an individual’s physical or

mental impairment or impairments are of a sufficient

medical severity that such impairment or impairments

could be the basis of eligibility under this section, the

Secretary shall consider the combined effect of all of the

individual’s impairments without regard to whether any

such impairment, if considered separately, would be of

such severity. If the Secretary does find a medically severe

combination of impairments, the combined impact of the

impairments shall be considered throughout the disability

determination process.”.

5. 20C.F.R. 404.1520, 404.1521, 416.920 and 416.92]

provide:

§ 404.1520 Eval tion of disability in general.

(a) Steps in evaluating disability. We consider all

material facts to determine whether you are disabled. If

you are doing substantial gainful activity, we will deter-

mine that you are not disabled. If you are not doing

substantial gainful activity, we will first consider your

physical or mental impairment(s). Your impairment(s)

must be severe and meet the duration requirement before

we can find you to be disabled. We follow a set order to

determine whether you are disabled. We review any cur-

rent work activity, the severity of your impairment(s),

your residual functional capacity and your age, education,

33a

and work experience. If we can find that you are disabled

or not disabled at any point in the review, we do not

review further.

(b) If you are working. If you are working and the work

you are doing is substantial gainful activity, we will find

that you are not disabled regardless of your medical condi-

tion or your age, education, and work experience.

have any impairment or combination of impairments

which significantly limits your physical or mental ability to

do basic work activities, we will find that you do not have

a severe impairment and are, therefore, not disabled. We

will not consider your age, education, and work ex-

perience. However, it is possible for you to have a period

of disability for a time in the past even though you do not

have a severe impairment.

(d) When your impairment(s) meets or equals a listed

impairment in Appendix 1. If you have an impairment(s)

which meets the duration requirement and is listed in Ap-

pendix | or is equal to a listed impairment(s), we will find

you disabled without considering your age, education, and

work experience.

(e) Your impairment(s) must prevent you from doing

past relevant work. \f we cannot make a decision based on

your current work activity or on medical facts alone, and

you have a severe impairment(s), we then review your

residual functional capacity and the physical and mental

demands of the work you have done in the past. If you can

still do this kind of work, we will find that you are not

disabled.

(f) Your impairment(s) must prevent you from doing

any other work. (1) If you cannot do any work you have

done in the past because you have a severe impairment(s),

we will consider your residual functional capacity and

your age, education, and past work experience to see if

you can do other work. If you cannot we will find you

disabled.

34a

(2) If you have only a marginal education, and long

work experience (i.e., 35 years or more) where you only

did arduous unskilled physical labor, and you can no

longer do this kind of work, we use a different rule (see

§ 404.1562).

§ 404.1521 What we mean by an impairment(s) that is not severe.

(a) Non-severe impairment(s). An impairment or com-

bination of impairments is not severe if it does not

significantly limit your physical or mental ability to do

basic work activities.

(b) Basic work activites. When we talk about basic work

activities, we mean the abilities and aptitudes necessary to

do most jobs. Examples of these include —

(1) Physical functions such as walking, standing, sitting,

lifting, pushing, pulling, reaching, carrying or handling;

(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering sim-

ple instructions;

(4) Use of judgment;

(5) Responding appropriately to supervision, co-

workers and usual work situations; and

(6) Dealing with changes in a routine work Setting.

6. 20C.F.R. 416.920 and 416.921 provide:

3 416.920 Evaluation of disability in general.

(a) Steps in evaluating disability. We consider all

material facts to determine whether you are disabled. If

you are doing substantial gainful activity, we will deter-

mine that you are not disabled. If you are not doing

substantial gainful activity, we will first consider your

physical or mental impairment(s). Your impairment(s)

must be severe and meet the duration requirement before

we can find you to be disabled. We follow a set order to

determine whether you are disabled. We review any cur-

rent work activity, the severity of your impairment(s),

your residual functional capacity and your age, education,

35a

and work experience. If we can find that you are disabled

or not disabled at any point in the review, we do not

review further.

(b) Jf you are working. If you are working and the work

you are doing is substantial gainful activity, we will find

that you are not disabled regardless of your mental condi-

tion or your age, education, and work experience.

have any impairment or combination of impairments

which significantly limits your physical or mental ability to

do basic work activities, we will find that you do not have

a severe impairment and are, therefore, not disabled. We

will not consider your age, education, and work ex-

perience.

(d) When your impairment(s) meets or equals a listed

impairment in Appendix |. If you have an impairment(s)

which meets the duration requirement and is listed in Ap-

pendix | or is equal to a listed impairment(s), we will find

you disabled without considering your age, education, and

work experience.

(e) Your impairment(s) must prevent you from doing

past relevant work. If we cannot make a decision based on

your current work activity or on medical facts alone, and

you have a severe impairment(s), we then review your

residual functional capacity and the physical and mental

demands of the work you have done in the past. If you can

still do this kind of work, we will find that you are not

disabled.

(f) Your impeirment(s) must prevent you from doing

other work. (i) If you cannot do any work you have done

in the past cause you have a severe impairment(s), we

will conside ycur residual functional capacity and your

age, educat .<, and past work experience to see if you can

do other \ ork, If you cannot, we will find you disabled.

36a

(2) If you have only a marginal education, and long

work experience (i.e., 35 years or more) where you only

did arduous unskilled physical labor, and you can on

longer do this kind of work, we use a different rule (see

§ 416.962).

[50 FR 8728, Mar. 5, 1985]

§ 416.921 What we mean by an impairment(s) that is not severe.

(a) Non-severe impairment(s). An impairment or com-

bination of impairments is not severe if it does not

significantly limit your physical or mental ability to do

basic work activities.

(b) Basic work activities. When we talk about basic

work activities, we mean the abilities and aptitudes

necessary to do most jobs. Examples of these include —

(1) Physical functions such as walking, standing, sitting,

lifting, pushing, pulling, reaching, carrying, or handling;

(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering sim-

ple instructions;

(4) Use of judgment;

(5) Responding appropriately to supervision, co-

workers and usual work situations; and

(6) Dealing with changes in a routine work Setting.

37a

APPENDIX I

SOCIAL SECURITY RULING (SSR) 85-28

(PPS-122) SSR 85-28

TITLES If AND XVI: MEDICAL IMPAIRMENTS

THAT ARE NOT SEVERE

PURPOSE: To clarify the policy for determining when

a person’s impairment(s) may be found “not severe” and,

thus, the basis for a finding of “not disabled” in the se-

quential evaluation of disability, and thereby reflect cer-

tain circuit court decisions that have taken issue with the

Secretary’s previously stated definition of “not severe” im-

pairments.

CITATIONS (AUTHORITY): Sections 216(i), 223(d),

and 1614(a)(3)(A) of the Social Security Act, as amended;

Regulations No. 4, sections 404.1520-404.1523 and

Regulations No. 16, sections 416.920-416.923.

PERTINENT HISTORY: The basic definition of

disability is contained in sections 223(d)(1)(A) and

1614(aX(3)A) of the Act. Under this definition, an in-

dividual must have, as an initial requirement, a “physical

or mental impairment,” as defined in sections 223(d)(3)

and 1614(a)(3)(C), and which is expected either to result in

death or to last at least 12 months. The principal require-

ment regarding impairment severity contained in the basic

statutory definition of disability is that the individual’s in-

ability to engage in any substantial gainful activity (SGA)

be “be reason of” the impairment.

In reporting on the Social Security Amendments of 1954

which first introduced the basic definition of disability

into the Act, the Senate Committee on Finance indicated

that the definition required that there be a “medically

determinable impairment of serious proportions,” that is,

38a

“of a nature and degree of severity sufficient to justify its

consideration as the cause of failure to obtain any substan-

tial gainful work.”

In the Social Security Amendments of 1967, Congress

introduced into the Act the provision in section

223(d)(2)(A) which sets out a specific requirement respect-

ing impairment severity and which provides for the con-

sideration of vocational factors in determining disability:

An individual “. . . shall be determined to be under a

disability only if his physical or mental impairment or im-

pairments are of such severity that he is not only unable to

do his previous work but cannot, considering his age,

education, and work experience, engage in any kind of

substantial gainful work which exists in the national

economy .. .” (emphasis added). In reporting on these

amendments, both the Senate Committee on Finance and

the House Committee on Ways and Means reaffirmed the

need for some assurance that a finding of disability would

be based on a serious impairment. The Committees ex-

plained that the provisions of the amendment would re-

quire, in part, that:

“. . . an individual would be disabled only if it is shown

that he has a severe medically determinable physical or

mental impairment or impairments .. .” (emphasis

added).

As in 1954 and 1967, Congress, again, in the Social

Security Disability Benefits Reform Act of 1984, made it

‘Clear that a denial of disability benefits may be based on

medical factors alone. In amending section 223(d)(2) and

section 1614(a)(3) of the Act to provide for the evaluation

of the impact of multiple impairments throughout the se-

quential evaluation process, Congress introduced

language which affirms the presence of a severity

threshold in the adjudicative process:

39a

“In determining whether an individual’s physical or

mental impairment or impairments are of a sufficient

medical severity that such impairment or impairments

could be the basis of eligiblity under this section, the

Secretary shall consider the combined effect of all of the

individual’s impairments. . . .”

The validity of a disability decision based on medical

considerations alone was also recognized in the Conferees’

discussion of the amendment (House of Representatives

Conference Report 98-1039 to accompany H.R. 3755.

September 19, 1984, p. 30) in which it was stated that there

was no intention to “either eliminate or impair” the use of

the “current sequential evaluation process.”

The principle that a denial determination may be made

on the basis of medical considerations alone was first

reflected in Regulations No. 4, section 404.1502(a),

published in 1960. Regulations published in 1978 revised

the 1960 statement concerning such determinations by

replacing the phrase “. . .the only impairment is a slight

neurosis, slight npairment of sight or hearing, or other

slight abnormality or combination of slight abnormalities

.. with “. . . The medically determinable impairment in

not severe if it does not significantly limit an individual’s

physical or mental capacity to perform basic work-related

functions.”

This change in regulatory definition was introduced in

the language describing step 2 of the sequential evaluation

process which was formalized in regulations effective

February 26, 1979. (The 1980 recodification of the

Wisability Regulations into common sense language

reworded the definition of a not severe impairment as

follows: “An impairment is not severe if it does not

significantly limit your physical or mental abilities to do

basic work activities.” 20 C.F.R. 404.1521(a) and

416.921(a). Also see sections 404.1520(c) and 416.920(c).)

These changes in regulatory language were not intended to

alter the levels of severity for a finding of not disabled on

40a

the basis of medical considerations alone. Rather, they

were intended only to clarify the circumstances under

which such a finding would be justified (Federal

1978, p. 55357-55358). Nevertheless, some recent circuit

court decisions have taken exception to the threshold of

impairment severity applied in the adjudication of subject

cases which were denied on the basis of not severe impair-

ment.

As observed by the Congress, the Social Security Ad-

ministration (SSA), as part of an ongoing review, is

reevaluating the application of the not severe impairment

policy and will continue to do so. This ruling is part of the

Ongoing reevaluation and imterprets and clarifies the cur-

rent policy On not severe impairment, describes the

threshold intended, and reflects recent legislation. Also, it

is being issued to clarify that SSA’s policy is consistent

with various court decisions. For example, Stone v.

Heckler, 752 F.2d 1099 (Sth Cir. 1985), and Estran v.

Heckler, 745 F.2d 340 (Sth Cir. 1984), stated that “an im-

pairment can be considered as not severe only if it is a

slight abnormality which has such a minimal effect on the

individual that it would not be expected to interfere with

the individual’s ability to work irrespective of age, educa-

tion, Or work experience.” As Baeder v. Heckler, No.

84-5663 (3rd Cir. July 24, 1985), Suggested, the severity

regulation is to do no “more than allow the Secretary to

deny benefits summarily to those applicants with im-

pairments of a minimal nature which could never prevent

a person from working.”

POLICY CLARIFICATION: In determining, for

initial entitlement to benefits, whether an individual is

disabled, we follow a sequential evaluation process

whereby current work activity, severity and duration of

impairment, ability to do past work, and ability to do

other work (in light of the individual’s age, education and

4la

work experience) are considered, in that order. See 20

CFR sections 404.1520 and 416.920. In determining con-

tinuing entitlement to benefits, the adjudicator, with ap-

propriate consideration of the medical improvement

review standard, also follows a sequential evaluation proc-

ess which includes the “not severe impairment” concept.

Fundamental to these processes is the statutory require-

ment that to be found disabled, an individual must have a

medically determinable impairment “of such severity” that

it precludes his or her engaging in any substantial gainful

work.

As explained in 20 CFR, sections 404.1520, 404.1521,

416.920(c), and 416.921, at the second step of sequential

evaluation it must be determined whether medical

evidence establishes an impairment or combination of im-

pairments “of such severity” as to be the basis of a finding

of inability to engage in any SGA. An impairment or com-

bination of impairments is found “not severe” and a find-

ing of “not disabled” is made at this step when medical

evidence establishes only a slight abnormality or a com-

bination of slight abnormalities which would have no

more than a minimal effect on an individual’s ability to

work even if the individual’s age, education, or work ex-

perience were specifically considered (i.e., the person’s im-

pairment(s) has no more than a minimal effect on his or

her physical or menta! ability(ies) to perform basic work

activities). Thus, even if an individual were of advanced

age, had minimal education, and a limited work ex-

perience, an impairment found to be not severe would not

prevent him or her from engaging in SGA.

The severity requirement cannot be satisfied when

medical evidence shows that the person has the ability to

perform basic work activities, as required in most jobs.

Examples of these are walking, standing, sitting, lifting,

pushing, pulling, reaching, carrying or handling; seeing,

hearing, and speaking; understanding, carrying out, and

42a

remembering simple instructions; use of judgement,

responding appropriately to supervision, coworkers, and

usual work situations; and dealing with changes in a

routine work setting. Thus, these basic work factors are

inherent in making a determination that an individual does

not have a severe medical impairment.

Although an impairment is not severe if it has no more

than a minimal effect on an individual’s physical or mental

ability(ies) to do basic work activities, the possiblity of

several such impairments combining to produce a severe

impairment must be considered. Under 20 CFR, section

404.1523 and 416.923, when assessing the severity of

whatever impairments an individual may have, the ad-

judicator must assess the impact of the combination of

those impairments on the person’s ability to function,

rather than assess separately the contribution of each im-

pairment to the restriction of his or her activity as if each

impairment existed alone. A claim may be denied at step

two only if the evidence shows that the individual’s im-

pairments, when considered in combination, are not

medically severe, i.e., do not have more than a minimal ef-

fect on the person’s physical or mental ability(ies) to per-

form basic work activities. If such a finding is not clearly

established by medical evidence, however, adjudication

must continue through the sequential evaluation process.

Inherent in a finding of a medically not severe impair-

ment or combination of impairments is the conclusion that

the individual’s ability to engage in SGA is not seriously

affected. Before this conclusion can be reached, however,

an evaluation of the effects of the impairment(s) on the

person’s ability to do basic work activities must be made.

A determination that an impairment(s) is not severe re-

quires a careful evaluation of the medical findings which

describe the impairment(s) and an informed judgment

about its (their) limiting effects on the individual’s physical

and mental ability(ies) to perform basic work activities:

43a

thus, an assessment of function is inherent in the medical

evaluation process itself. At the second step of sequential

evaluation, then, medical evidence alone is evaluated in

order to assess the effects of the impairment(s) on ability

to do basic work activities. If this assessment shows the in-

dividual to have the physical and mental ability(ies)

necessary to perform such activities, no evaluation of past

work (or of age, education, work experience) is needed.

Rather, it is reasonable to conclude, based on the minimal

impact of the impairment(s), that the individual is capable

of engaging in SGA.

By definition, basic work activities are the abilities and

aptitudes necessary to do most jobs. In the absence of con-

trary evidence, it is reasonable to conclude that an in-

dividual whose impairments do not preclude the perform-

ance of basic work activities is, therefore, able to perform

his or her past relevant work. If the medical evidence

establishes only a slight abnormality(ies) which has no

more than a minimal effect on a claimant’s ability to do

basic work activities, but evidence shows that the person

cannot perform his or her past relevant work because of

the unique features of that work, a denial at the “not

severe” step of the sequential evaluation process is inap-

propriate. The inability to perform past relevant work in

such instances warrants further evaluation of the in-

dividual’s ability to do other work considering age, educa-

tion and work experience. '

' This provision does not conflict with, nor negate, the policy stated

in SSR 82-63 concerning special “no recent or relevant work ex

perience” cases. In such cases an individual must be found to have a

severe impairment(s) (i.e., one which has more than a minimal effect

on the person’s physical or mental ability(ies) to perform basic work

activities) in order to be considered under the special provisions of

that Ruling.

44a

Great care should be exercised in applying the not severe

impairment concept. If an adjudicator is unable to deter-

mine clearly the effect of an impairment or combination

of impairments on the individual’s ability to do basic work

activities, the sequential evaluation process should not end

with the not severe evaluation step. Rather, it should be

continued. In such a circumstance, if the impairment does

not meet or equal the severity level of the relevant medical

listing, sequential evaluation requires that the adjudicator

evaluate the individual’s ability to do past work, or to do

other work based on the consideration of age, education,

and prior work experience.

U.S. GOVERNMENT PRINTING OFFICE: 1986 — 491-507/20154

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.