Opposition Brief — Bowen v. Yuckert

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

No. 85-1409

OTIS R. BOWEN, SECRETARY OF HEALTH

AND HUMAN SERVICES, PETITIONER

Vv.

JANET J. YUCKERT

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

COMES NOW Janet J. Yuckert and moves this Court for an Order

to permit her to proceed in forma pauperis without payment of

fees and costs or security therefore, as provided in 28 U.S.C.

§1915, because, as her affidavit indicates, she is unable to pay

such costs or give security therefore.

DATED: April 21, 1986.

GIBBS, DOUGLAS, THEILER & DRACHLER

By Qe 6 Ausf

pymes A. —s

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

No. 85-1409

OTIS R. BOWEN, SECRETARY OF HEALTH

AND BUMAN SERVICES, PETITIONER

Vv.

JANET J. YUCKERT

AFFIDAVIT IN SUPPORT OF MOTION FOR LEAVE

TO PROCEED IN FORMA PAUPERIS

STATE OF WASHINGTON )

COUNTY OF KING _

I, Janet J. Yuckert, being first duly sworn, depose and say

that the Secretary of Bealth and Human Services has petit:.oned

for a writ of certiorari in the above-entitled case; that in

support of my motion for leave to proceed in forma pauperis

without being required to prepay fees, costs, or give security

therefore, I state that because of my poverty I am unable to pay

the costs of said proceeding or to give security therefore; and

that I believe I am entitled to redress.

I further swear that the information set forth below re-

lating to my ability to pay the costs of said proceeding is true.

1. I am presently unable to work because of my disability.

I last worked in November, 1979. I am unemployed and my sole

source of income is loans from my father and mother. The only

cash I have on hand or money in a checking account is from this

source.

My father keeps very close account of the amounts they

2.

They expect me and I have agreed to pay them back for the support

lend me. He is retired and on a pension; my mother never worked.

they are providing if I ever receiv disability benefits or regain

Within the past twelve months I have not received any

or

my health.

3

income from a business, profession or other form of self-employ-

ment, or in the form of rent payments, interest, dividends,

real estate, stocks, bonds, notes,

(excluding ordinary household furn-

other source.

I do not own any

My car is a 1970 Ford Maverick, the value

4.

or other valuable property

ishings and clothing).

of which is so low it does not even appear in the Blue Book.

5. Wo one is dependent upon me for support.

6. I was granted leave to proceed in forma peuperis before

both the district court and the circuit court o* appeals in this

answer to any ques-

action.

I understand that a false statement or

tions in this statement will subject me to penalties for perjury.

SUBSCRIBED AND SWORN to before me this | _ day of Op ve! ;

1986.

su PUBLIC in and for the

State of Washington, residing

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No. 85 - 1409

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1985

OTIS R. BOWEN, SECRETARY OF HEALTH

AND HUMAN SERVICES, PETITIONER

JANET J. YUCKERT, RESPONDENT

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

POR THE NINTH CIRCUIT

JAMES A. DOUGLAS, ESQ.

GIBBS, DOUGLAS, THEILER & DRACHLER

1613 Smith Tower

Seattle, WA 98104

(206) 623-0900

No. 85 - 1409

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1985

OTIS R. BOWEN, SECRETARY OF HEALTH

AND HUMAN SERVICES, PETITIONER

Ve

JANET J. YUCKERT, RESPONDENT

RESPONDENT'S BRIEF IN OPPOSITION

QUESTION PRESENTED

Whether the “severity step," either as embodied in the

Secretary's regulations, 20 C.F.R. §§404.1520(c) and 416.920(c),

Or as applied by the Secretary, violates the Social Security Act

by allowing the Secretary to make summary denials of disability

benefits without considering the effect of a claimant's impair-

ments on the ability to perform past or other work.

TABLE OF CONTENTS

QUESTION PRESENTED. ccoccccccceceececececeseceseseesesecces *eeee i

TABLE OF CONTENTS... eeeee eeeeeeeoeeeeneeee *eeeeeee secesooeesoeso Se

TABLE OF ES. . . 6hO64066000006066000006060066066606006888

I.

Il.

III.

STATEMENT OF THE PE. .. ian0t60660666006608600606006000606808

ARGUMENT... cceees *eeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeee secoe’

A. There Is No Circuit Conflict Warranting

Resolution By This Pe. ccnceesesoesersoooeossosoocoee™

B. Even If The Distinction Between The Rulings Of

The Circuits Were Significant, They Cannot Be

Adequately Resolved In This Case At This Time.........9

C. Petitioner's Argument That The Legislative

History Validates The Severity Step Is

Inappropriate At This Time And In Any Event Has

Been Universally Rejected. .ccccceceececeessessssesees 13

. ) \ errr? |

ii

TABLE OF AUTHORITIES

PAGE

Cases

Baeder vy. Heckler, 768 F.2d 547 (3d Cir. 1985)

peRSSSSSSSSESERC COSC COCOSEDOOO ESSEC ECO CCOCCCCS ocBe Se 6, 23

Bohms vy. Gardner, 381 F.2d 283 (8th Cir. 1967)...seeeeeeeees .10

Brady vy. Heckler, 724 F.2d 914 (llth Cir. 1984) ..ss++eeees 5, ll

Channel vy. Heckler, 747 F.2d 577 (10th Cir. 1984) ..seeeeeseees 3

Cohen vy. Perales, 412 F.2d 44 (5th Cir. 1969), xeyv's op

ether gub nom. Richardson v. Perales, 402

U.s. 389 C1ST1) ccccccccccccccccccccccecescoooccooccceceeced@

, 434 F.2d 1018 (2d Cir.), cert.

den., 401 U.S. 979 LASTS) cccccocccccencccccceeeoocecoesecose

Delgado vy. Heckler, 772 P.2d 570 (9th Cir. 1983) .ccccceesees oé8

Dixon vy. Heckler, 589 F.Supp. 1494 (S.D.N.¥. 1984),

aff'd F.2d __ (2d Cir., Mar. 7, 1986)

eeeeeeeeeeeepeeeeeeee ee aebacebeadeeesene seen 5, 6, ll, 12

Evans vy. Heckler, 734 F.2d 1012 (4th Cir. 1984)... seeces ecees

Francis vy. Heckler, 749 F.2d 1562 (llth Cir. 1985).... seeeeese 3

Gilchrist vy. Schweiker, 645 F.2d 818 (9th Cir. 19B81l)..cesaees 10

, 736

P.24d 352 (6th Cir. 1984) -.cccccccesesscccccce e*enwee *eeeeeneeee 5

1, Secretary of Health, Education & Welfare, 602

F.2d 1372 (9th Cir. 1979) wcccccccee *enreeee. eee eeeeeeeeeeneeee 3

Hansen v. Heckler, 783 F.2d 170 (10th Cic. 1986) cccscccces 5, 7

Heckler vy. Campbell, 461 U.S. 458 (1983) ccccccecccccccesye 3, 7

r, 769 F.2d 1202 (7th Cir. 1985), xreh.

den. 776 F.2d 166 (1985) petition for cert. filed

No. 85-1442 (Feb. 28, 1986)

nnenesenssdeh)o6)oebeebeeteseosooesous 5, 6, T° 8, 9, 13, 14

Johnson vy. Massachusetts, 390 U.S. 511 C1968) cccccccccccccecede

Keith vy. Heckler, 732 F.2d 1089 (2d Cir. 1984) wc cceeesceeeeeeed

, 389 U.S. 560 (1968); Johnson

vy. Massachusetts, 390 U.S. 511 TASER ccococcocecooooececoese

Mayersky vy. Celebrezze, 353 F.2d 89 (3d Cir. 1965) wceeeeeeeesll

McDonald vy. Heckler, 624 F.Supp. 375 (D.Mass. 1985)

eee ehh he EE ECSSSSSCCSRSOCCSSES COC TCCO CC COSUS 15

_Health and Human Services, 774

F.2d 685 (6th Cir. SUED occccccesce eeceeccesoocccoeocessoss

, 595 F. Supp. 1173 (E.D.Cal. 1984),

appeal pending, No. 85-2178 (9th Cir., argued Oct.

10, BOOS) cccccccccccccececccecccccceccoosesccccess 5, ll, 12

Smith v. Mississippi, 373 U.S. 238 (BSED ccccccccccsccaqceseseee

Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985)

1 eM hed ha 6665S SCRSOSSESOSUOC OOOO CRUE 6, 7, ll

iii

Valencia vy. Heckler, 751 F.2d 1082 (9th Cir. 1985)....seeeeeeed

Wainwright v. New Orleans, 392 U.S. 598 (1967). .ceceeeeeeee ell

Whitehead y. Califano, 596 F.2d 1315 (6th Cir. 1979)......... 10

Whitney v. Schweiker, 695 F.2d 784 (7th Cir. 1982)....... sesuell

Yuckert vy. Heckler, 774 F.2d 1365 (9th Cir. 1985),

petition for cert. filed No. 85-1409 (Feb. 21,

OPT TTTTTTTTTT TTT 4, 7° 8, 10, ll, 12

STATUTES AND LAWS

42 United States Code

§401 et BEG cee eceseseves THTTTTULITITTTTTIT TTI

SEZS (E)cccccccccece eeeeeee PTUTTTTIITTTITITITITILiTirrreriiiiTe.

$423 (GE) (A) cccccccccccccccccccccccceeccceecececcccoscccsceee®

BEZ3d (4) (1) (A) ccoccccccccccccccccccccescsececccesoescceesoeens

GE2Z3 (GE) (2) cccccccccccccccccccccccececccceoeceeoecoscecoetys 7

§423 (d) (2) (A) PPTUTTTTTITTITITITITITITITririiriiii titty 76 14

S423 (EG) (3) CA) ccccccccccccccccccoceccecceceeeeceseeococooecens

Sl13Bl, St SEG. neces scccsesecsseseseces eccccccccccsccccceccces

SISEZC (A) (3) CA) ccccccccecccccceccoeeeeeseeeeeceoccoceqosy 13

SISSZS (OH) (3) (BD) cccccceccccccecccceccceesoccecesccccceseccesl

Public Laws

Dn cd ésaneecoooses e*eeee 506606 606500600680600666068060600R8—8

DM. -t.cnnneeneeeeeoesese s*enree bO6OSencesceceseeseoseceoesns

RULES AND REGULATIONS

20 Code of Federal Regulations

Seebalesceececooeseses eee eee eseeeeeeeeeeeeeeeeeeeeeeee seceon

PERO a tS oeeeececacceeseesocoeneceseneoeeeoeoeeoocesoocoed

$404.1520 wncecececceccsecss PPUTTTTITILILILITI TTT 2

§404.1520(c) TTT TTT TTC TTTTTTTTTTTTiTiTirererrfeirerrte 6

Social Security Ruling (SSR) 85-28 ...sseeeeee Terrrry eevee 13

MISCELLANEOUS

Background Materia) and Data on Major Programs Within

W.M.C.P. 98-2, Committee on Ways & Means, United

States House of Representatives, 98th Cong., lst

Sess. at 79 Grrr rTrrrTrreyT Tey T Tre TTTTTeUriTirrrrereyTyt

“Pinal Report and Recommendations" contained in

Memorandum to Acting Deputy to the Deputy

Commissioner for Programs and Policy of the

Department of Health and Human Services from Leader,

"Not Severe Impairment Workgroup,” (Aug 23, 1983).........11l

H. Rep. No. 544, 90th Cong., lst Sess. CRO? Pecccocecsccocecescel®

Letter from Associate Commissioner of Disability,

Patricia Owens, to all Disability Determination

Services Administrators (Dec. 16, 1985) ...eeecececesessesesd

Memorandum from Maury Ross to Joseph E. Maloney (July

15, 1985), included in "Monthly Report" submitted to

the court on August 12, _ ey y eet

Mr. Justice Harlan, “Some Aspects of the Judicial

Process in the Supreme Court of the United States,"

33 Australian Led. TE 6606666066666666600006066 00000000068

iv

"Report on the Not Severe Case Study -~ information,"

dated March 14, 1986, Associate Commissioner of

Disability to Regional Commissioners. .--+--- TTTTTITTTIT TTT.

S.Rep.No. 744, 90th Cong., lst Sess. (1967) cccceeeeeeeees eee eld

Stern and Gressman, Supreme Court Practice (Sth Ed.

1978) coccccccssececeses Pye rrreerrrrrrrTrTi TTT iii iii 9

I. STATEMENT OF THE CASE

Respondent Janet J. Yuckert respectfully requests that

this Court deny the petition for writ of certiorari seeking re-

view of the decision of the Ninth Circuit Court of Appeals in

this case. The order and judgment of the district court below

and the decision of the Ninth Circuit are found in the Appendix

attached to the Petition herein.

Ms. Janet J. Yuckert, Respondent, is a former travel

agent whose principal impairment is "bilateral labyrinthine

dysfunction," a condition which makes it difficult to focus her

eyes or to stand. Brief of Appellant, Yuckert v. Heckler, 774

P.24 1365 (9th Cir. 1985), petition for cert. filed No. 85-1409

(Peb. 21, 1986), at 3. “She can just see one word at a time,”

making the use of her eyes a “tremendous strain." Ibid. She

suffers dizziness, and “tends to fall" to her right side. Ibid.

"She has learned to compensate by holding onto walls, furniture,

counters and by staying within reach of something she can grab."

Ibid. She suffers “extremely severe" headaches two or three

times per week. Ibid, Previously these headaches occurred “all

the time." Ibid, Her condition makes her weak and shaky, and

she has problems » th stamina. Ibid. She also has problems

with her feet which aggravate her difficulty standing. Ibid.

The dizziness has affected her mental abilities. Id. at 6. She

has been unable to continue many of her former activities, and

has great difficulty driving, even on a limited basis. Id, at 5.

Unable to do ner former work, Janet Yuckert has made an

"incredible effort" to learn new skills at a community college.

Id. at 8. After a class she needs to sleep for several hours and

she is able to study only by alternately working and sleeping in

36 minute stretches. Id. at 4.

Ms. Yuckert applied for Social Security and

Supplemental Security Income disability benefits on October 30,

1980.2

The application was denied as “non-severe." This means

the denial was made without regard to the effect of her condition

on her ability to do her past or other work. Such denials are

commonly referred cto as having been made at the “severity step. **

After exhausting the available administrative remedies,

Ms. Yuckert filed a timely appeal with the United States District

Court for the Western District of Washington on August 18, 1982

alleging that the Administrative Law Judge's decision failed to

give proper weight to the opinion of the treating physician and

was not based on substantial evidence. The district court

adopted the Magistrate's recommendation and affirmed the Sec-

retary's findings. Pet. App. 14a and 20a. Ms. Yuckert did not

challenge the validity of the “non-severe” regulations in the

district court.

Ms. Yuckert appealed to the Ninth Circuit Court of

Appeals on December 20, 1984. Shortly thereafter she moved for a

remand pursuant to the preliminary injunction issued in a

circuit-wide class challenge to the validity of "“non-severe”

denials, Smith vy. Heckler, 595 F. Supp. 1173 (E.D.Cal. 1984),

appeal pending, No. 85-2178 (9th Cir., argued Oct. 10, 1985).

This motion was denied. Ms. Yuckert then moved to stay

proceedings in the court of appeals pending a ruling in one of

the other challenges to the “severity step" before the court.

The Secretary did not oppose the motion for stay and in fact

"suggest(ed) that ... argument in [this] case be stayed" giving

as one reason the fact that the Smith injunction had been

1 the Social Security Act creates two parallel

disability programs. Title II of the Social Security Act

provides benefits to disabled workers without regard tc financial

need. 42 U.S.C. $401 et seg. Title XVI of the Socia) Security

Act creates the Supplemental Security Income program which

provides benefits to disabled individuals whose income and

resources fall below a specific level. 42 U.S.C. §1381, et seq.

The definition of disability, which is the same for both

programs, specifically requires that impairments be evaluated in

terms of their effect on the claimant's ability to do past or

other work. 42 U.S.C. §§423(d)(2) (A) and 1382c(a) (3) (A). (See

Heckler vy. Campbell, 461 U. S. 458 (1983), for a general

description of the Social Security disability program.)

2 The “severity step” is the second c. a series of

questions called the “sequential evaluation” used to evaluate

Gisability claims. 20 C.P.R. §§404.1520 and 416.920. As this

series of questions is currently structured, no evaluation of the

ability to do past or other work is made for claimants whose

impairments are found to be “non-severe.*

appealed on an expedited basis and was set for oral argument on

October 10, 1985. Appellee's Response to Appellant's Motion to

Stay Proceedings. The Motion to Stay Proceedings was denied and

the court proceeded to consider Ms. Yuckert's appeal.

Appellant's brief raised the challenge to the severity regulation

for the first time.

The court of apoeals reversed and remanded the district

court order on October 24, 1985. Yuckert vy. Heckler, 774 F.2d

1365 (9th Cir. 1985), petition for cart. filed No. 85-1409 (Feb.

21, 1986). Since there had been no discovery or factual

development on the general impact of non-severe denials, the

court's analysis was, of necessity, made on solely legal grounds.

Specifically, the court found that the severity step “does not

permit the individualized assessment of disability required by

the [Social Security] Act." Yuckert vy. Heckler, 774 F.2d, gupra,

at 1369. The court relied on Johnson vy. Heckler, 769 F.2d 1202,

1210-13 (7th Cir. 1985), xreh. den. 776 F.2d 166 (1985) petition

for cert. filed No. 85-1442 (Feb. 28, 1986); Baeder v. Heckler,

768 F.2d 547, 531-53 (3d Cir. 1985); Dixon vy. Heckler, 589

F.Supp. 1494, 1502-06 (S.D.N.Y. 1984); Delgado vy. Heckler, 772

P.2d 570, 574 (9th Cir. 1983); and referred to Heckler vy.

Campbell, 461 U.S. 458, 467 (1983), for the “statutory scheme for

individual determinations." The court rejected the Secretary's

argument that the legislative history of the Act endorsed the

Secretary's application of the severity regulation. Yuckert v.

Heckler, qunes. 744 F.2d at 1370.

The court also found tbat the severity step violated

the “long established" precedent of the circuit courts regarding

allocation of the burden of proof in disability determinations.

Id. at 1370.°

prima facie showing of disability by proving an inability to

This allocation requires a claimant to make a

perform past relevant work, after which the burden shifts to the

3 whe court cites Valencia v. Heckler, 751 F.2d 1082,

1086 (9th Cir. 1985); Francis vy. Heckler, 749 F.2d 1562, 1564

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

Cir. 1984) (per curiam); Whitney v. Schweiker, 695 F.2d 784, 786

(7th Cir. 1982);

Welfare, 602 F.2d 1372, 1375 (9th Cir. 1979), and referring to

Johnson vy. Heckler, supra, 769 F.2d, at 1210, and Baeder vy.

Heckler, gupra, 768 F.2d at 553.

Secretary to show that the claimant retains the capacity to

perform other work.

Subsequent to oral argument in the court of appeals but

prior to issuance of the court's decision, the Secretary

submitted a draft of a “Social Security Ruling” purporting to

either clarify or alter the "non-severe" step so as not to

violate the requirement of the Social Security Act that

impairments be evaluated in light of their effect on the ability

to engage in substantial gainful activity. The court declined

to rule on the validity of this ruling. Id, at 1369 n.6.

The court of appeals remanded Ms. Yuckert's case to the

Gistrict court "... with instructions that the Secretary

reevaluate Yuckert's claim ...." Id, at 1371. However, remand

from the district court to the Secretary for further factual

development has been deferred at the request of the Secretary

pending the present proceedings. -

On February 27, 1986, the Secretary filed the pending

Petition for Certiorari.

II. ARGUMENT

The Ninth Circuit in this case joins every circuit

which has considered the issue, as well as numerous district

courts, in finding that the Secretary's “non-severe" impairment

regulations, policies and practices have violated claimants’

right to individualized assessments of their disability claims.

These cases hold that the purpose of the disability program, as

set forth in the Social Security Act, is to assist people whose

medical conditions prevent them from working. The Secretary's

severity step, which denies or terminates large numbers of people

‘ This draft was later revised and published as Social

Security Ruling (SSR) 85-28.

people without consideration of their actual ability to work,

therefore makes no sense.”

The Petitioner, while acknowledging that the Ninth Cir-

cuit is not alone in invalidating the severity step, asserts that

the variations in the reasoning of these decisions warrant

Supreme Court review. Yet the only real distinction among the

decisions is whether the illegality of the severity step is seen

as deriving from an invalid regulation® or as being an illegal

prectice which could be remedied by a stricter reading of the

regulation.’ The only practical effect of this distinction is

whether the Swcretary can reform the severity step only through a

new regulation or whether he can use manuals, rulings and other

policy channels.

By focusing on the remedies ordered by the courts

rather than the substance of the courts’ reasoning, the

In some years as many as 40% of all disability

disallowances were based on the severity step.

Heckler, 768 F.2d 547, 552 (3d Cir. 1985); and Dixon v. Heckler,

589 F.Supp. 1494, 1503-1504 (S.D.N.Y. 1984), aff'd _. F.2d _ (2d

Cir., Mar. 7, 1986), citing Backors

rz

Programs Within the Jurisdic

Means, W.M.C.P. 98-2, Commictee on Ways & Means, United States

House of Representatives, 98th Cong., lst Sess. at 79 (1983).

The percentage of claimants whose claims were originally denied

or terminated as “not severe" and who were later found to be in

fact disabled by an Administrative Law Judge following court-

ordered reevaluation has risen as high as 42% for some months.

Memorandum from Maury Ross to Joseph E. Maloney (July 15, 1985),

included in "Monthly Report" submitted to the court on August 12,

1985 in Smith vy. Heckler, 595 F.Supp. 1173 (E.D.Cal. 1984),

appeal pending, No. 85-2178 (9th Cir., argued Oct. 10, 1985).

6 see, e.g., the present case; Smith v. Heckler, 595

P.Supp. 1173 (E.D.Cal. 1984), appeal pending, No. 85-2178 (9th

Cir., argued Oct. 10, 1985) (9th Cir. class); Hansen vy. Heckler,

783 F.2d 170 (10th Cir. 1986); Johnson vy. Heckler, 769 F.2d 1202

(7th Cir. 1985), reh. den. 776 F.2d 166 (1985) petition for cert.

filed No. 85-1442 (Feb. 28, 1986) (Illinois class); Baeder vy.

Heckler, 768 F.2d 547 (3d Cir. 1985); and Lixon vy. Heckler, supra

(New York class); McDonald vy. Heckler, 624 F.Supp. 375 (D.Mass.

1985) (Massachusetts class).

7 See, @.9., Stone vy. Heckler, 752 F.2d 1099 (5th Cir.

1985); Brady v. Heckler, 724 F.2d 914 (llth Cir. 1984); Evans v.

Heckler, 734 F.2¢ 1012 (4th Cir. 1984); Keith v. Heckler, 732

F.2d 1089 (2d Cir. 1984);

Services, 774 F.2d 685 (6th Cir. 1985). The only Circuit Court

of Appeals which has ever even appeared to uphold the severity

step is the Sixth. In Gist v. Secretary of Health and Human

Services, 736 F.2d 352 (6th Cir. 1984), that court rejected a

challenge to the severity step in a one-paragraph statement

without the benefit of discovery or in depth analysis. In &@ more

recent opinion, Salmi v. Secretary of Health and Human Services,

gupra, the Sixth Circuit expanded on Gist to require that the

severity regulations be interpreted narrowly, thereby joining the

circuits which hold the severity step invalid if not narrowly

applied. Salmi, gupra, 774 F.2d at 689-692.

Petitioner attempts to establish that circuits which have

invalidated only the Secretary's practice, requiring the

Secretary to read his regulation more narrowly, are in conflict

with those decisions which invalidate the regulation as it is

written. ® Consideration of a few of the cases cited by the

Petitioner to support this alleged conflict in fact illustrates

the uniformity of the reasoning employed by the courts.

In Baeder, a case which invalidated the regulation, the

Third Circuit found that the severity step clearly exceeded a de

minimis screening concept and allowed the Secretary virtually

unlimited discretion in disability determinations.

"We believe that section 1520(c) of the regulations

does more than allow the Secretary to deny benefits

summarily to those applicants with impairments of a

minimal nature which could never prevent a person from

working. It also allows the Secretary to bypass a

full-scale evaluation, which would consider and relate

both medical and vocational factors, of an applicant

who might actually be entitled to benefits were his

age, education and work experience considered."

768 F.2d at 553.

\

In Stone vy. Heckler, 752 F.2d 1099, 1104 (5th Cir.

1985), the Fifth Circuit expressed the same concern regarding

discretion used by the Secretary under the aegis of the severity

step, but chose to remedy the Secretary's violation of the Act by

assuming, on a case-by-case basis, that the Secretary's

construction and application of the severity step was invalid.

"If we read this statute [42 U.S.C. §423(d)(1) and (2))

to authorize the Secretary to deny ‘disability’ to a

claimant suffering a physically or mentally disabling

impairment, and for that reason unable to engage in

substantial gainful work, whenever the Secretary is not

satisfied with the ‘severity’ of the impairment, we

would be holding contrary to the expressed Congression-

al purpose and rewriting the statute to leave the

determination of disability solely to the Secretary's

Giscretion about severe impairments. We can find no

justification in the statutory language, nor in the

history of this legislation, for the Secretary's

position.*

The Court added:

Nearly all of the courts which have considered the

validity of the severity step have also held that the severity

regulation conflicts with the longstanding rules that a claimant

must be afforded the opportunity to establish a prima facie case

of disability by showing inability to do past work. See, @.9.,

the present case; , SUpra; ’

gupra, 589 F.Supp. at 1506. Petitioner does not address this

issue.

"The Secretary does not have the authority to construe

the severity regulation so as to deny benefits to

individuals who are disabled within the meaning of

section 423(d). This circuit in Estran, Davis, and

Martin has stated the proper construction of the term

‘severe impairment’ found in the severity regulation,

and :

xcegulation invalid. *

752 F.2d at 1105 (emphasis added).

The Seventh Circuit's statutory analysis in Johnson,

Aupra, 769 F.2d at 1210-11, pinpoints the flaw in the severity

step as the Secretary's discretion to preclude claimants from

proving their prima facie case.

"The Act provides that an individual will be found

disabled when 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...' 42 U.8&.C.

§$§423(d)(2) and 1382c(a)(3)(B) (emphasis added). The

Supreme court has recognized that ‘disability hearings

will be individualized determinations.' Heckler vy.

, 461 U.S. 458, 467 (1983). Step two, by

contrast, permits the Secretary to label a claimant as

not disabled, even though his impairments in fact

prevent him from doing his past work...."

(Emphasis in original.)

Pinally, Hansen v. Heckler, gupra, 783 F.2d at 176,

specifically recognized that the issue was one of remedy.

"We must therefore consider how best to remedy the

Secretary's apparent continuing intent to apply the

step two severity regulation in a manner that conflicts

with the Act and the controlling case law."

Thus the circuits which have invalidated the

Secretary's construction and application of the regulation, such

as the Stone Court, have used the same analysis as that used by

courts which have invalidated the regulation per ge. Each court

has found that the regulation has been used in a manner which

violates claimants’ rights. Whether the needed reform must be

published as a regulation or can be implemented through rulings

and manual changes simply does not warrant revfew by this Court.

Petitioner has also undertaken to discover a split

between the Yuckert decision and Johnson vy. Heckler, gupra, by

portraying the present case as precluding the possibility of a de

minimis screening standard. Petitioner states:

"(T]he [¥Yuckert] 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 national economy. The

court interpreted this provision to require the Secre-

tary ‘to consider factors such as [the claimant's) age,

education, work experience, and ability to do past

work’

irrespective of whether the claimant has demonstrated

serarity. Ago. inca Sada

Pet. at 8 (emphasis added).

This characterization is pure fabrication. The

underlined phrase does not appear anywhere in the Yuckert

decision.® In fact, there has as of yet been no discussion in

the present case, either at the district court level or in the

Ninth Circuit, of what sort of de minimis screening standard

might comply with the Social Security Act.

Finally, in an attempt to reinforce his argument that

there is a significant split in the circuits, the Petitioner

argues that the Secretary and the state agencies must know

whether they may apply the severity regulation to the “scores of

thousands of disability claims filed." Pet. at 11. The more

relevant question would be whether the “severity step” as it has

been applied is valid. Petitioner does know the answer to this

question, having been told very clearly by every circuit which

has considered the issue that the Secretary may not use the

’ Petitioner has similarly mischaracterized the

Yuckert holding in his petition for certiorari in Johnson. That

petition states:

"(T]he Ninth Circuit held that the severity regulations

are invalid because ... (ii) they do not provide for a

specific consideration of the claimant's age, educa-

tion, and work experience in every case." Petition for

a writ of certiorari, Johnson vy. Heckler, 769 F.2d 1202

(7th Cir. 1985), xreh. den. 776 F.2d 166 (1985) petition

for cert. filed No. 85-1442 (Feb. 28, 1986), p. 13.

Petitioner then proceeds in the ,lohnson petition to

urge this Court to accept Yuckert as a “more appropriate vehicle"

for certiorari, reasoning that this (incorrect) characterization

of Yuckert conflicts with Johnson.

“severity step" to deny benefits to claimants who might otherwise

be able to prove their eligibility for benefits.?°

Not every difference in the holdings of different

Circuits warrants resolution by the Supreme Court. As Justice

Harlan wrote, nearly 30 years ago:

".«+ [A] conflict of decisions may safely be relied on

as a ground for certiorari in instances where it is

clear that the conflict is one that can be effectively

resolved only by prompt action of the Supreme Court

alone." 11

Certainly this is a case where Supreme Court intervention is not

warranted.

B. Even If The Distinction Between The Rulings of the

Circuits Were Significant, They Cannot Be Adequately Resolved In

This Case At This Time.

There is no basis for the Secretary's designation of

this individual case as an “appropriate vehicle” for review of

the “severity step." Petition for cert. Johnson vy. Heckler,

@Aupra, p- 13. Even if the differences in reasoning of the

circuit courts were significant, resolution of those differences

by the Supreme Court at this time and in the present case is

inappropriate for three reasons. Pirstly, Ms. Yuckert's

disability claim may well be resolved by the remand proceedings

below. Secondly, the absence in this case of any discovery or

factual development regarding the history, the functioning, and

broad impact of the "severity step" makes review of this case by

this Court inappropriate. Finally, where the Secretary has so

recently attempted to enunciate a standard to comply with the de

Minimis screening principles articulated by the circuit courts of

10 The Petitioner's allegation that orders enjoining

the severity step have produced “substantial disruption in the

administration of the Social Security disability program" (Pet.

at 22-23) contradicts his own findings in previous statements.

See Letter from Associate Commissioner of Disability, Patricia

Owens, to all Disability Determination Services Administrators

(Dec. 16, 1985) regarding implementation of the not severe

impairment policy clarification. Using the present case as an

illustration, there is every reason to think that Janet Yuckert's

capacity to return to her past work could have been considered

with minimal expense and effort.

il Mr. Justice Harlan, “Some Aspects of the Judicial

Process in the Supreme Court of the United States," 33 Australian

L.J. (1959), quoted in Stern and Gressman, Supreme Court Prac-

hice, 5th ed. 1978.

appeals, and the trial courts have not been given the opportunity

to consider the factual contexts in which the new ruling will be

utilized, this Court has neither the obligation nor the resources

to consider whether SSR 85-28 articulates such a de minimis

standard.

The Ninth Circuit ordered that Janet Yuckert's claim be

reevaluated by the Secretary “without reference to the severity

regulation." Yuckert vy. Heckler, 774 P.2d, at 1371. Whether the

Secretary finds that Janet Yuckert is disabled or not, the result

of this reevaluation will be to make the present proceedings

moot. Were the present proceedings in the nature of an appeal

from a district court to a circuit court of appeals, it is

probable that, in light of the pending remand, there could be no

"final decision" and appeal would be improper. As stated by Mr.

Justice Blackmun (then Circuit Judge), “[u]ntil the Secretary

acts on the remand we have no insight as to what his eventual

decision will be." Bohms v. Gardner, 381 F.2d 283, 285 (8th Cir.

1967), cited in Dalton vy. sRichardson, 434 F.2d 1018 (2d Cir.,

1970), cert. den. 401 v.s. 979 (1970).??

Ms. Yuckert is an individual claimant who did not

challenge the validity of the severity regulations in the

district court. Accordingly the present case presents no

analysis or discovery regarding either the impact of the severity

step on impairments other than Ms. Yuckert's or what mechanism,

if any, might properly replace the “severity step.*?> The

district court opinion is an unpublished one-page order adopting

the short recommendation of the Magistrate, which turned on the

question of substantial evidence. The Ninth Circuit analysis is

based on solely legal grounds. An analysis which must focus on

12 see also Gilchrist v. Schweiker, 645 F.2d 818 (9th

Cir. 1981); Mayersky vy. Celebrezze, 353 F.2d 89 (3d Cir. 1965);

Whitehead vy. Califano, 596 F.2d 1315 (6th Cir. 1979). But see

Cohen vy. Perales, 412 F.2d 44 (5th Cir. 1969), xev'd on other

grouuds sub nom. Richardson vy. Perales, 402 U.S. 389 (1971).

43 This Court has previously dismissed writs of

certiorari as improvidently granted where the record was

insufficient for an adequate consideration of the questions

raised by the court. See Massachusetts v. Painten, 389 U.S. 560

(1968); Johnson v. Massachusetts, 390 U.S. 511 (1968); Wainwright

vy. New Orleans, 392 0.S. 598 (1967); Smith v. Mississippi, 373

U.S. 238 (1963).

10

the facts of a single case with a necessarily sparse record would

limit and improperly affect this Court's review. This Court

needs a factual analysis of the impact of the “severity step"

presented by the complex and varied factual records in class

actions.

The volumes of discovery documents produced pursuant to

class action challenges have illuminated internal controversies

and criticisms of the severity step. Although Petitioner has

alleged that the severity regulation invalidated in Yuckert

facilitates the "fair, efficient, and uniform adjudication” of

Gisability claims, Pet. at 10, his own actions indicate a

recognition of the need for broader factual development on this

issue. The Secretary supported Respondent's motion to stay

proceedings in the Ninth Circuit in the present case pending

resolution of the legality of the severity step in a class

action. See Statement of the Case, gupra, pp. 2-3. In addition

the Secretary recently ordered a broad-based study of the

severity step./4 The results of the study reveal a lack of

uniform application of the severity step in approximately 40% of

a test sample of 800 cases. In 309 cases, the Office of

Disability physicians assessed the severity levcl of the

impairment(s) differently than did the State physicians, or

questioned the documentation used to assess severity. The study

concluded that "misunderstanding regarding the threshold level of

not severe cases (the level at which an impairment is considered

severe rather than not severe) was clearly exhibited." (Report,

p. 6.) Nor is this the first study undertaken by the Secretary

to come to this conclusion.?>

It was at least partly in recognition of widespread

"misunderstanding and misapplication of the not severe threshold"

14 snith v. Heckler, Civ. No. P83-1609 EJG,

Supplemental Response to Plaintiffs' Second Request for

Production of Documents. “Report on the Not Eevere Case Study --

information," dated March 14, 1986, Associate Commissioner of

Disability to Regional Commissioners.

15 See “Final Report and Recommendations” contained in

Memorandum to Acting Deputy to the Deputy Commissioner for

Programs and Policy of the Department of Health and Human

Services from Leader, “Not Severe Impairment Workgroup," (Aug 23,

1983) (obtained in discovery in Dixon vy. Heckler, aupra, and

Smith vy. Heckler, supra.

1l

that the Secretary issued Social Security Ruling 85-28, "to

resolve the inconsistent application of the not severe policy.”

Report, p. 7. The cautious language of SSR 85-28, the attempt to

articulate a de minimis standard that appears on the final pages

of the Secretary's petition in this case (Pet. at 23-24), the

recent study and the existence of at least one previous study,

all suggest that the Secretery is well aware of the need for a

remedy that will respect the statutory mandate of individualized

assessments in disability determinations.

These developments may well play a significant role in

future severity step litigation. As the Petitioner admits, the

Xuckert Court "expressed no view on the validity of the new

ruling,” Pet. at 10, nor has any other circuit court opinion

(whether finding the current requlations invalid or the

Secretary's policies and practices invalid) foreclosed the

possibility of the Secretary promulgating and implementing a

valid de minimis screening standard. Whether or not a standard

can be devised that can operate as a de minimis screening device

is largely a factual question which must be answered in the

context of its actual application, and which should be addressed

initially in the trial courts./®

16 In declining to rule on the validity of SSR 85-28,

the Ninth Circuit relied in part on the fact that the “ruling”

submitted by government counsel had not yet been published.

Indeed, the published version of SSR 85-28, which was issued a

month after the Ninth Circuit's decision, contained a number of

significant modifications. The Secretary removed language

requiring that basic work activities be "prevented"; revised the

ruling's footnote regarding older individuals to relax

eligibility requirements; and revised the ruling's language to

make clear that the ruling contemplated not severe findings in

some cases of individuals who could not, in fact, return to their

prior work. Thus, even if the Ninth Circuit had decided the

validity of the version of the proposed ruling submitted by

government counsel, it could not have adjudicated the abstract

validity of a final ruling that was not yet published.

In any event, Ms. Yuckert's individual case is not a

proper context for considering the validity of the Secretary's

new ruling. The ruling was not applied in her case. To the

extent that injunctions in other cases may restrict the

Secretary's ability to employ his new ruling, the proper course

for the Secretary is to seek relief, if appropriate, from the

courts that issued those injunctions.

12

The Secretary devotes fully ten pages to restating the

universally rejected position that the severity step has been

validated by the legislative history of the various amendments of

the Social Security act.?? The purpose of rearguing one aspect

of the Secretary's position in a petition for writ of certioari

is not apparent, especially since the Secretary does not even

allege that the circuits are divided on this question. However,

since the Secretary has devoted so much attention to this

argument, some response is required.

The definition of disability has remained basically

unchanged since it was introduced into the Social Security Act in

1954:

*... 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 period of not less than 12 months.”

42 U.S.C. $423(4) (1) (A), and 1382c(a)(3)(A). (Emphasis added. )

This definition attaches no conditions to the nature of

the impairment, so long as it is medically determinable, of

sufficient duration, and results in the inability to do any

substantial gainful work.

In 1967, Congress elaborated on the basic definition in

what is now 42 U.S.C. §423(d)(2) (A) and (3) (P.L. 90-248). The

Congressional reports accompanying the 1967 amendments indicate

the motivation for this elaboration was concern that, certain

courts had found claimants disabled not because they were unable

to engage in any substantial gainful activity, but rather because

the work they were able to do was unavailable in their geographic

area or because they would be unlikely to be hired for jobs that

they could do. 5&.Rep.No. 744, 90th Cong., lst Sess. (1967),

17 see, @.g., Johnson vy. Heckler, supra, 769 F.2d at

1212 ("fhe legislative history of the 1984 amendment cuts

against, rather than supports, the Secretary's arguments in this

case."); and Baeder vy. Heckler, gupra, 768 F.2d at 551 ("Both the

statute and the legislative history speak in terms of medical and

vocational factors and emphasize the importance of the relation

between the two.”")

13

reprinted in [1967] U.S. Code Cong. & Admin. News 2880-2881;

H.Rep.No. 544, 90th Cong., lst Sess. (1967), 28-31. These

provisions make it clear that disability claims must be based on

"anatomical, psychological abnormalities," but that the measure

of disability remains the ability to work. Specifically:

"An individual (except a widow, surviving divorced

wife, widower or surviving divorced husband 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...."*

42 U.5.C. §423(d)(A). (Emphasis added.)

The 1967 amendments also demonstrate the vocational

measure of disability by contrasting the deliberately “more

restrictive” definition of disability applicable to widows and

widowers. Disability for surviving spouses ise defined "...

solely on the level of severity of the impairment ...* and

"...without regard to nonmedical factors such as age, education

and work experience, which are considered in disabled worker

cases." S&.Rep.No. 744, gupra, at 2882; see also H.Conf.Rep.No.

1030, 90th Cong., lst Sess. (1967), reprinted in [1967] U. S&S.

Code Cong. & Admin. News 3197-3198.

Finally, in 1984 Congress passed section 4(a)(1) of the

Reform Act (Pub.L. 98-460, signed Oct. 9, 1984) which mandated

the consideration of the combined effect of impairments.

Petitioner has attempted to make much of this amendment.

However, as observed recently in McDonald y. Heckler, 624 F.Supp.

375, 379 (D.Mass. 1985), there is no reason to think this

language was intended to do anything “more than require the

Secretary to discontinue hijis] policy of refusing to consider the

combined effect of non-severe impairments." See also Johnson vy.

Heckler, supra, 769 F.2d at 1214.

Since Congress is constantly in the process of refining

the Social Security Act, the volume of legislative history which

has accumulated since the disability program was instituted is

extensive. The Secretary's argument that the legislative history

supports his position consists of an attempt to comb through this

14

history for phrases which arguably support his position. In

spite of the vastness of the legislative history available to the

Secretary, he has produced nothing which would alter the plain

language of the statute.

IV. CONCLUSION

Por all the foregoing reasons, the Secretary's petition

for a writ of certiorari should be denied.

Respectfully submitted,

JAMES A. DOUGLAS, ESQ.

GIBBS, DOUGLAS, THEILER & DRACHLER

1613 Smith Tower

Seattle, WA 9814

(206) 623-0900

Counsel for Janet J. Yuckert

15

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

OTIS R. BOWEN, SECRETARY

OF HEALTH AND HUMAN

SERVICES,

PETITIONER,

No. 85-1409

Vv.

JANET J. YUCKERT

CERTIFICATE OF SERVICE

It is hereby certified that all parties required to be

\

served have been served copies of the following by air mail

April 21, 1986 addressed to Edwin S. Kneedler,

on

Assistant to the Solicitor General, Department of Justice,

Washington, DC 20530:

Appearance Form

Motion for Leave to Proceed in Forma Pauperis

Affidavit in Support of Motion for Leavel to Proceed

in Forma Pauperis

Brief in Opposition to Petition for a Writ of Certiorari

7 A. DOUGLAS /

1986.

SUBSCRIBED AND SWORN this Q| day of Aprit P

anSS SE ‘ '

sy WAT>

¥ voy sum Watts

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‘.> SSSION fait,

%" NOTARY PUBLIC in and for the

5 #3 =

oa Z ? \OTARY . 4 State of Washington, residing

2 § “Viewer ri at Seattle.

42, PUBL 202

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