Petitioners Brief — Bowen v. Yuckert

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FILED

In the Supreme Court of the Gnited

OCTOBER TERM, 1986

Otis R. BOWEN, SECRETARY OF HEALTH

AND HUMAN SERVICES, PETITIONER

Vv.

JANET J. YUCKERT

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE PETITIONER

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

LAWRENCE G. WALLACE

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 erroneously 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

ee Cee ae cece seseocccesseees l

cach acest seeccccsceses l

Statutory and regulatory provisions involved ............... l

a ot cco wen tecccesce 2

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

B. The proceedings in this case .................0005: 5

Ne se ees dcedeeccdescosccseocs 11

Argument:

The severity regulation constitutes a valid exercise of the

Secretary’s authority under 42 U.S.C. 405(a) to issue rules

regulating the receipt of evidence and manner of proof in

disability cases and to give content to the statutory defini-

tion in 42 U.S.C. 423(d)(1)(A) of the term “disability” . . . 16

A. The validity of the severity regulation is supported by

the statutory definition of the term “disability” in 42

U.S.C. 423(d)(1)(A), as well as other provisions of the

Act, and is expressly sanctioned by the Social Security

Disability Benefits Reform Act of 1984............. 19

B. The legislative history of the relevant amendments to

the Social Security Act and the administrative history

of the disability program confirm the validity of the

Ee 30

Cee cs cca ueabecescesecceceees 50

EE la

TABLE OF AUTHORITIES

Cases:

Atkins v. Rivera, No. 85-632 (June 23, 1986) ........... 31

ag EG) 25

Bailey v. Bowen, No. 83-1797 (M.D. Pa. Mar. 11, 1986),

appeal pending, No. 86-5038 (3d Cir.) ............... 18

Bowen v. City of New York, No. 84-1923 (June 2, 1986). 3,4

Brady v. Heckler, 724 F.2d 914 ...............0005. 11, 18, 27

Brown v. Heckler, 786 F.2d 870 ................5.. 18, 22, 25

Bunch v. Heckler, 778 F.2d 396 ..~ 2... eee 18

CFTC v. Schor, No. 85-621 (July 7, 1986) ........... 38, 39, 43

(IIT)

Page

Campbell vy. Heckler, 620 F. Supp. 469, appeal pending,

Bs SO ong i ciddducevcdeussoe wns 18

Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 .. .38, 41, 49

Chico v. Schweiker, 710 F.2d 947 .............00 00 ees 11

Dixon v. Heckler, 785 F.2d 1102, petition for cert. pend-

SO SE EE Gi NecaukiudianebeSascstvecetecees 11, 18, 25

Beers ©. FERGINT, FED cde BD occ ccc ccc cccccccvscecs 1]

BS, Fs CE at HEE 6b cc cee dedbecevesocs 11, 18

FDIC v. Philadelphia Gear Corp., No. 84-1972 (May 27,

ee a ee ene ii ad eae ea ee A 4 39

Farmer v. Secretary of Health & Human Services, No.

G5-SESD GE Cie, Fey BB, GED oc cc cccvcccccccevess 17

Farris v. Secretary of Health & Human Services, 773

Ff a ap eT ee eee ry TET Tee 11, 17, 27

Pe, He Fe ED tcc a ccescccceccceeess 18

cas eeccenesetooens 17

CES, Bs BEE oo ect ecccccccccceceeen 18

Hampton v. Bowen, 785 F.2d 1308 ..............0045. 17, 27

Hansen v. Heckler, 783 F.2d 170 ..... 0... ee ee eee 18, 25

Heckler v. Campbell, 461 U.S. 458 ................ “— % "

8, 17, 18, 19, 29, 33, 42

ee ©: Ge Me Gres TE 6 60 6 0.5006 00 64dbneeuns ows 43, 46

Johnson v. Heckler, 769 F.2d 1202, reh’g en banc

denied, 776 F.2d 166, petition for cert. pending, No.

EE ga oe iB ee eee ee oe oe eee ea 18, 25, 28

Ce es es GS OD anc ccccccccececceseces 42

Mason v. Bowen, No. 83-390 (D. Vt. May 21, 1986) ..... 18

Mathews v. Eldridge, 424 U.S. 319 ..............0005. 15, 23

McCruter v. Bowen, 791 F.2d 1544 ................4... 18

McDonald v. Secretary of Health & Human Services, No.

86-1288 (Ist Cir. July 17, 1986) ............. ee

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

Dy co tunddscksnasd del eee buena hés6 6o006 0-455 39

NLRB vy. Bell Aerospace Co., 416 U.S. 267 ............ 38

Pattern Makers v. NLRB, No. 83-1894 (June 27, 1985) ... 38

Prattv. Heckler, 629 F. Supp. 1496 ................... 18

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

ER ae ere re rere 17

Schweiker v. Gray Panthers, 453 U.S. 34 .............. 8, 19

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

SF ne ee er er ee 18

Cases — Continued: Page

Stone v. Heckler, 752 F.2d 1099 ...........2 0c eeeeees 17

Wilson v. Secretary of Health & Human Services, No.

85-5814 (3d Cir. July 14, 1986) ..... 6... eee ee renee 18, 25

Statutes and regulations:

Act of Jan. 12, 1983, Pub. L. No. 97-455, §§ 2-7, 96 Stat.

EE doc odecsse ues cnudebedaweséoecen “ee 43

Social Security Act, 42 U.S.C (& Supp. II) 301 ef seq.:

Tit. Il, 42 U.S.C. (& Supp. I) 401 ef seq.:

rk Flt Fe rer rrr 8, ll

19, 29, 36

TR Ge oe ccccccveccnsccccscceseens 5,7

EE on o6b sec cccccccosceceoccees 35

42 U.S.C. (& Supp. II) 416(i) ...... 6.6.6 e eee 20

42 U.S.C. 41GGMIMB) .. 0. ccc ccc eee e eee 32

PRR a TTT 34

42 U.S.C. (Supp. II) 421) ......--- ee eee ees 34

42 U.S.C. (Supp. ID) 421(k) .... 2. eee ee eee 34

42 U.S.C. (Supp. ID) 423(a)(1)(D) ........----- 2

42 U.S.C. (& Supp. ID) 423(d)(IMA) ......----- passim

42 U.S.C. 42HGMAMA) .... ccc cc cccccccccees passim

42 U.S.C. (Supp. ID) 423(d)(2)(A) .. ...- . ee ee passim

42 U.S.C. (Supp. II) 423(d)(2)(C) ......-.- eee 1, 14,

27, 28, 44, la

GD URE, GD acc ccesbecccetsceccccces 13, 22

PER Oa 2 re ee 6

42 U.S.C. (Supp. Il) 423(d)(5) .......- 6.66 ee. 23

42 U.S.C. (Supp. I1) 423(d)(SMA) ...... 6.66: 13, 23

42 U.S.C. (& Supp. II) 423(f) ........-.6.-5- 4

42 U.S.C. (& Supp. ID) 423(M1) ..... 6. ee eee 24

Tit. XIV, 42 U.S.C. (1970 ed.) 1351 ef seg. ......... 31

Tit. XVI, 42 U.S.C. (& Supp. I) 1381 ef seq.:

42 U.S.C. (& Supp. II) 1382(a) ..............-. 2

GB Uj S.C. TIO cc cece ccccses: 2, 20, 41, 2a

42 U.S.C. (& Supp. Il) 1382c(a)(3)(B) ......... 7 me

. 25, 41, 2a

42 U.S.C. (& Supp. II) 1382c(aX3MG) ......... 2, 27,

44, 2a

42 U.S.C. (& Supp. IL) 1382c(ay(3)(H) ...-....-. 6, 24

42 U.S.C. (& Supp. II) 1382c(a)(S5) .........--. 4

42 U.S.C. (& Supp. II) 1382c(a)(S(A) .......-- 24

Statutes and regulations — Continued: Page

Social Security Act Amendments of 1950, ch. 809, § 351,

>} OF Ferre TTTTITTr rir ieee 31

Social Security Amendments of 1952, ch. 945, § 3(d), 66

eRe og ER Sgt hn ape eee eae ae 20, 31

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

i nn ee Ce ein eeEbeebethesees 4 20

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

i el el ae ad ened eenatss 21

Social Security Amendments of 1960, Pub. L. No. 86-778,

| FY Ff RPT TTITETITITLie Tir 37

Te, Bg Fs HOD oc ccc ccesccscsonccccceees 37

Social Security Amendments of 1967, Pub. L. No. 90-248,

3) & 5 Pre errerierririr rite 24, 39

Social Security Amendments of 1972, Pub. L. No. 92-603,

Ds BPs EE Sh cccscceewcevecsnecsqvcoccees 41

Social Security Disability Amendments of 1980, Pub. L.

No. 96-265, 94 Stat 441 ef Seg. ....... 0 cece eee eeeeee 43 i

Social Security Disability Benefits Reform Act of 1984,

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

pe Sy 7 APT TESTRTL IEEE 4, 24

DR PEE, BOUT vice essa cdecccccssccccees 23

Be & fF Ry, 8 BP reeeTeTe eee , 24

sad bbs ececcvassesteccspecwece ce 44, 49

FF % » 3% FPPPPPITTrrrrereriere rite 27

20 C.F.R.:

ek & PPT OTTITTTITT TTT 4

aT =. | ar 38

Section 404.1501(c) (1958) ...............05.. 38

Section 404.1502(a) (1961) ........... arrow 36

Section 404.1502(a) (1966) ................45.. 39, 41

Section 404. 1502(a) (1977) ............220008- 10

BO Ge SE NTED oc ccc cccccccceseces 10, 42

Section 404.1504(aM1) ............ ccc eee eeee 10

i os eee houenacdues 2, 3, 43, 49, 3a

ns cece cede ess ee ebeeee 3

EE ee ee ee 3, 4, 5, 21, 50

dk sce eaeetoekdsesnes 4

is cece ebtsevesovene 5

SO GE OD CEES cccdccccccceccesesses 43

Vil

Statutes and regulations — Continued: Page

i weet a eee aul 2, 10

49, 50, 3a, Sa

nr ge hay 3

eR 3, 4, 12, 21

Tee ssc ueaccebies 6, 23

es so cuneisseceedcoceses 4

Sections 404.1545 to 404.1568 ............... 43

Pt. 416:

Eo cn lc peewee reenecceces 10

ee 10

a ck cc eeeeccee ess 2, 3, 49, Sa

i i cet clue de dabovese 3

ere 3, 4, 5, 10, 21

I 6 5... sb cee ces 6eedsecaue 4

a ee ie 5

Ce cus aceen ween 2, 10, 49, 7a

ED ons occa snveeenees eee 3

Ns cn ceccccteseces re

is oe ee beb eee 4

Sections 416.945 to 416.968 .................. 43

Ne beeen un ' 48

I a a ae 10, 11,

13, 14, 22, 26, 29, 48

I ED oc ks ck e bekdedéecneeasale 48

Miscellaneous:

Administration of Social Security Disability Insurance

Program: Hearings before the Subcomm. on the Ad-

ministration of the Social Security Laws of the House

Comm. on Ways and Means, 86th Cong., Ist Sess.

re ne er se 36-37

Annual Message of the President on Health Security,

H.R. Doc. 120, 76th Cong., Ist Sess. (1939) .......... 31

Appeals Council Review of Sequential Evaluation Under

Expanded Vocational Regulations (1980) ............ 27

95 Cong. Rec. 13915-13916 (1949) ........0 00000000... 31

96 Cong. Rec. (1950)

Ce es ge oe ota eden dae ddebes 31

Se A a i rr 33

VIII

Miscellaneous — Continued Page

98 Cong. Rec. (1952):

ec onde enieeeekdeneseunes 20

DLA cheese DEREKS ESHER EKOT ObCECS SRR R SEO RR 20

re, CD « . sce akencdecvevenceseece 33

401 Cong. Rec. 10768-10772 (1955) ..... 2.0... cece eee 35

O02 Cong. Rec. (1956):

a eee id baw dee dh es eeeense oe 35

Rs oes eb et aetenees cabin es wedbaneie 35

Ne es Céd ae ennndésabe basesUeeeasd uate 35

Eh in 64.6666 ae ebb becphes ees tabbensseees 35

ED 6 os 6 wok n0s.0656b4eseubusdtenedes 35 /

EE os. 6 n.d 6k bckbbbeeionabeesaweeeh 35

eh tenance ede beee si ehasgnsnadobs 35

ie cbkien 66 ec bN dds Rnhe eee eeenneee'n ees 35

nt i oes a Sie lds hd as Abate ase w a bead ook 35

Ea.) ne ca ede Ghee ed amehanenadn aera eeet 35

DCCA. tte UR eee, beta ehakaneseneet re 3

ed CUE ee ew cena inéeé'ees 35

130 Cong. Rec.:

p. H9836 (daily ed. Sept. 19, 1984) ................ 48

p. S11458 (daily ed. Sept. 19, 1984) ............ 24, 47, 49

Disability Insurance Legislation: Hearings Before the

Subcomm. on Social Security of the House Comm. on

Ways and Means, 96th Cong., Ist Sess. (1979) ..... cs 43

ee RTT TIT ITT TTT TTC TT TTT 38

25 Fed. Reg. 8100 (1960) ................ aaa 36

33 Fed. Reg. (1968):

Ee ec ikea e ha kkbebeese bees eeeebes 41

43 Fed. Reg. (1978):

en rr re ree 27, 42

5.9297 ...... sn 5400S oh 4804640 06CK 4S CR 42

MALLS ies ccs dkh wh halle os caeheeules wan 42

eo conn tema daechenn¥4b4n6s0n0ee8oou8 42

_ faa PO ORO Meee Pree rer rere 42

i oe ade h Gl bebe chek eek bh Kanne 10

Re os re eat ede Lee ee 10

45 Fed. Reg. (1980):

ae ede e ain bbaka baa ken eee’ 43

Msc cLeVirepetenknksaedabhenhaates 10

i Ey . cis phe sekeathsevetsteehabeane 10

Miscellaneous — Continued: Page

50 Fed. Reg. (1985):

I, Me bind on ceuie heh eateedasusenes 49

kin eee ens ns neneee ened bkkeosn 49

I 4

I a 4

H.R. 6000, 81st Cong., Ist Sess. (1949) ................ 31

H.R. Conf. Rep. 2491, 82d Cong., 2d Sess. (1952) ...... 20

H.R. Conf. Rep. 2936, 84th Cong., 2d Sess. (1956) ...... 35

H.R. Conf. Rep. 98-1039, 98th Cong., 2d Sess. (1984) ... 24, 47

H.R. Rep. 1300, 81st Cong., Ist Sess. (1949) ........... 31

H.R. Rep. 1944, 82d Cong., 2d Sess. (1952) ............ 31

H.R. Rep. 1698, 83d Cong., 2d Sess. (1954) ............ 14, 20

30, 32, 40

H.R. Rep. 1799, 86th Cong., 2d Sess. (1960) ........... 37

H.R. Rep. 1899, 84th Cong., Ist Sess. (1955) ........... 35

H.R. Rep. 544, 90th Cong., Ist Sess. (1967) ............ 15, 41

H.R. Rep. 98-618, 98th Cong., 2d Sess. (1984) .......... 9, 24,

45, 46, 48

House Comm. on Ways and Means, 93d Cong., 2d Sess..,

Staff Report On the Disability Insurance Program

7 RS a ak Ee 33

Report of the Committee on Economic Security, H.R.

Doc. 110, 76th Cong., Ist Sess. (1939) ............... 31

Report of the Comptroller General: The Social Security

Administration Should Provide More Management and

Leadership in Determining Who Is Eligible For Dis-

EE ye 42

S. Doc. 10, 77th Cong., Ist Sess. Pt. 3 (1941) ........... 33

S. Rep. 1669, 8ist Cong., 2d Sess. (1950) .............. 31

S. Rep. 1806, 82d Cong.. 2d Sess. (1952) ............... 31

S. Rep. 1987, 83d Cong., 2d Sess. (1954) ............... 14, 20,

30, 32, 40

S. Rep. 2133, 84th Cong., 2d Sess. (1956) .............. 35

S. Rep. 1856, 86th Cong., 2d Sess. ‘'960) .......... sae 37

S. Rep. 744, 90th Cong., Ist Sess.( 57) ............... 15, 39,

41, 44, 45

S. Rep. 92-1230, 92d Cong., 2dSe: {972)............ 4]

S. Rep. 96-408, 96th Cong., Ist Sr 5. (1979) ............ 44

S. Rep. 98-466, 98th Cong., 2d Sess. (1984) ............ 24, 44

Miscellaneous — Continued:

Senate Comm. on Finance, 97th Cong., 2d Sess., Staff

Data and Materiais ®elated to the Social Security Dis-

ability Insurance Progr.» (Comm. Print 1982) .......

Senate Comm. on Finance, Recommendations for Social

Security Legislation, S. Doc. 208, 80th Cong., 2d Sess.

CODED ccd ccecccedcanccccednecescedsccceseseecces

Social Security Amendments of 1955: Hearings on H.R.

7225 Before the Senate Comm. on Finance, 84th Cong.,

DEB GHEE op occcrcsrecececcccconsesaeceseeces

Social Security Disability Insurance: Hearings Before the

Subcomm. c1 Social Security of the House Comm. on

Ways and Means, 98th Cong., Ist Sess. (1983) ........

Social Security Disability Insurance Program: Hearings

Before the Senate Comm. on Finance, 98th Cong., 2d

Bee GED on ca cecccceccccesesnssesnceseececeses

Subcomm. on Social Se urity of the House Comm. on

Ways and Means, 97th Cong., Ist Sess., Status of the

Disability Insurance Program (Comm. Print 1981) ....

Subcomm. on the Administration of the Social Security

Laws of the House Comm. on Ways and Means, 86th

Cong., 2d Sess., Administration of the Social Security

Disability Insurance Program: Preliminary Report

GOGH oc ccccccccesccsccdvccccccccseesecensescses

U.S. Department of Health, Education and Welfare, Dis-

ability Freeze State Manual (Mar. 16, 1955) ..........

Page

»oe

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1986

No. 85-1409

OTIS R. BOWEN, SECRETARY OF HEALTH

AND HUMAN SERVICES, PETITIONER

Vv.

JANET J. YUCKERT

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-12a)

is reported at 774 F.2d 1365. The order of the district court

(Pet. App. 14a) and the recommendation of the magistrate

(Pet. App. 15a-19a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 24, 1985 (Pet. App. 13a). By order dated January

14, 1986, Justice Rehnquist extended the-time within

which to file a petition for a writ of certiorari to and in-

cluding February 21, 1986. The petition was filed on that

date and was granted on May 19, 1986. The jurisdiction of

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

STATUTORY AND REGULATORY PROVISIONS INVOLVED

Section 223(d)(1)(A), (2)(A) and (C) of the Social

Security Act, as codified at 42- U.S.C. (& Supp. II)

423(d)(1)(A), (2)(A) and (C); Section 1614(a)(3)(A), (B)

and (G) of the Social Security Act, as codified at 42

(1)

U.S.C. (& Supp. II) 1382c(a)(3)(A), (B) and (G); and 20

C.F.R. 404.1520, 404.1521, 416.920, 416.921, are

reproduced at App., infra, la-7a.

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 his mental or physical ability 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 II 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. (Supp. II) 423(a)(1)(D).

Disability benefits also are provided under the Supplemen-

tal Security Income (SSI) program established by Title

XVI of the Act. 42 U.S.C. (& Supp. II) 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

* * a FO

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 impairment or impairments are of

such severity that he is not only unable to do his

previous work but cannot, considering his age, educa-

tion, and work experience, engage in any other kind

of 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. (Supp. II) 423(d)(2)(A); 42 U.S.C.

1382c(a)(3)(B).

To implement these statutory definitions, the Secretary

by regulation has established a five-step “sequential

evaluation” process to be followed by the decision-maker

(the state agency, the administrative law judge (ALJ), or

the Appeals Council) in determining whether a claimant is

disabled. 20 C.F.R. 404.1520, 416.920. See Bowen v. City

of New York, No. 84-1923 (June 2, 1986), slip op. 2-3;

Heckler v. Campbell, 461 U.S. 458, 460 (1983). At step 1

of that process, the decision-maker determines whether

the individual is engaged in work that constitutes substan-

tial gainful activity. If so, he is not 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, he 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)), which are defined to mean “the abilities and

aptitudes necessary to do most jobs” (20 C.F.R.

404.1521(b), 416.921(b)). The regulations identify examples

of such abilities and aptitweles: (1) “[p]hysical functions

such as walking, standing, sitting, lifting, pushing, pull-

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

seeing, hearing, and speaking”; (3) “[ujnderstanding,

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

“fujse of judgment”; (5) “[rjesponding appropriateiy 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 such basic work activities, he will be found not to be

disabled at step 2, without consideration of his age, educa-

tion, 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 meet or equal the listed impairments that are

deemed by the Secretary to be of sufficient severity to

preclude substantial gainful activity, without the need to

consider the claimant’s age, education, and work ex-

perience. 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 “conclusively presumed” to be disabling

under these listings (see Bowen v. City of New York, slip

op. 2), the decision-maker then must determine at step 4

whether the impairment prevents the individual from per-

' The sequence in which the severity of the 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 (Dec.

6, 1985), adding 20 C.F.R. 404.1594(f) and 416.994(b)(5). This dif-

ferent 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, 42 U.S.C. (Supp. I]) 423(f), 1382c(a)(S). See

Bowen v. City of New York, slip op. 18 n.14; note 11, infra. This case

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

therefore is governed by the regulations discussed in the text.

forming his own past work. If the claimant can 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 experience, he nevertheless is able to perform other

work that exists 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).? She

alleged that she was disabled on the basis of labyrinthine

(inner ear) dysfunction with occasional episodes of diz-

ziness; loss of visual focus; and flat feet (Pet. App. 15a,

26a; R. 82). After her claim was denied at the initial deter-

mination and reconsideration stages (J.A. 19-26; R. 90-96,

98), respondent requested a hearing before an ALJ.

The record before the ALJ showed that respondent was

45 years old and had a high school education, two years 0/

business college, and real estate training (Pet. App. 26a).

From 1963 to 1977, she had been employed as a travel

agent (id. at 15a, 26a). From September 1978 through

September 1979, with interruptions due to illness, re-

spondent worked in real estate sales (id. at 15a); she

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

high interest rate and so 1 left that job in September of

1979” (R. 52).

Following the hearing (R. 34-81), the ALJ concluded

that respondent’s impairments were not severe within the

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

denied her claim (Pet. App. 24a-27a). The ALJ found that

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

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

although respondent was not “free from episodes of diz-

ziness or vision problems,” she was “exaggerating the ef-

fects of her impairments” and, in particular, “appear[ed]

to be overemphasizing the effect of her impairments on

her ability to perform basic functions” (id. at 28a). The

ALJ found in this regard that “[mlJultiple tests given [to re-

spondent] failed to divulge objective clinical findings of

abnormalities that support [the alleged] severity of the

stated impairments” (id. at 27a), observing that respond-

ent was successfully pursuing a “relatively difficult” two-

year community college training plan for computer pro-

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

success in computer training, “coupled with generally

negative clinical findings” and her ability to perform

various activities, such as driving her car 80 to 90 miles per

week, demonstrated that her vision and balance problems

“(did] not significantly limit her ability to perform basic

work-related functions, e.g., real estate salesperson” (id.

at 28a).?

The Appeals Council denied respondent’s request for

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

psychological testing data submitted to the Appeals Coun-

cil by respondent’s representative did not undermine the

ALJ’s decision (id. at 22a):

The over-all results of all the testing indicated an

average range of intellectual abilities, with no pro-

’ The ALJ noted that a vocational expert called by respondent had

testified that respondent’s medical condition would preclude her from

working competitively, but the ALJ found that “the objective clinical

diagnostic findings of record do not support the conclusion that

[respondent] is ‘disabled’ ” (Pet. App. 27a). The ALJ explained that

“[s]ymptoms alone do not establish there is a physical or mental im-

pairment” and that “[mJedical signs [or] findings should be accom-

panied by a medical condition that could reasonably be expected to

produce the symptoms” (ibid.). See 42 U.S.C. (Supp. II) 423(d)(5),

1382c(a)(3)(H); 20 C.F.R. 404.1529. See note 11, infra.

found irregularities and the majority of skills still

fully intact. Only the finger dexterity test ad-

ministered showed a degree of difficulty. The Appeals

Council notes in that regard that the limitations

potentially imposed by the difficulty you might ex-

perience in small detailed parts dexterity does not in-

dicate 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.

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

(Pet. App. 15a-19a). The magistrate noted the testimony

by a vocational expert and a statement by a physician that

respondent’s impairments were incapacitating (id. at 18a).

On the other hand, the magistrate found that respondent’s

success in the community college program “is substantial

evidence of her ability to perform basic work activities”

(id. at 17a-18a). In the magistrate’s view, this determina-

tion was “reinforced” by the opinion of respondent’s

counselor at the state Department of Vocational

Rehabilitation that respondent would have little problem

in obtaining employment wher. she completed her training

(id. at 18a). Although the evidence thus was conflicting

regarding the severity of respondent’s impairments, the

magistrate concluded: “It is the function of the Secretary,

*** 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 re-

quired to affirm her determination” (id. at 19a). The dis-

trict court adopted the magistrate’s report and affirmed

the Secretary’s decision denying respondent’s claim (id. at

14a, 20a).

3. The court of appeals reversed and remanded (Pet.

App. la-12a). The court of appeals did not reach the ques-

tion whether there was substantial evidence to support the

Secretary’s decision that respondent did not have a severe

impairment that significantly limited her ability to do

basic work activities. Instead, the court held 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

therefore directed that the case be remanded to the

Secretary to be reconsidered without reliance on the severi-

ty regulation.

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’” (Pet. App. 8a, quoting

Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981)). The

court further recognized that the severity regulation must

be sustained unless it exceeds the Secretary’s statutory

authority or is arbitrary and capricious (Pet. App. 8a,

citing Heckler v. Campbell, 461 U.S. 458, 466 (1983)).

However, the court held that the severity regulation

violates the Social Security Act because, in the court’s

view, “it does not permit the individualized assessment of

disability required by the Act” (Pet. App. 8a). The court

gave three reasons for its conclusion.

First, the court believed that the regulation is inconsis-

tent with 42 U.S.C. 423(d)(2)(A), which provides that a

+ The court of appeals acknowledged that respondent had not

challenged the severity regulation in district court, but the court never-

theless chose to consider the issue because it “is purely one of law” and

“a significant question of general impact” (Pet. App. 4a-Sa). Although

respondent applied for disability benefits under the SSI program as

well as Title II (see page 5, supra), respondent’s complaint in district

court referred only to Title I] and the court of appeals discussed only

the severity regulation under Title II (Pet. App. 2a, 6a-7a, 11a-12a).

es a

claimant “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 * * *.”

The court interpreted this provision to require the

Secretary specifically “to consider factors such as [the

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

do past work” in every disability determination, irrespec-

tive of whether the claimant has demonstrated that his im-

pairment satisfies a threshold level of severity (Pet. App.

Sa, 9a).

Second, the court “reject[ed] the Secretary’s contention

that the legislative history of the Act, particularly the

[Social Security Disability Benefits Reform Act of 1984],

supports the sequential evaluation process” (Pet. App.

9a). The court acknowledged that Congress cons’ dered the

severity regulation when it enacted the 1984 Act and had

failed to eliminate the established requirement that the

claimant demonstrate a severe impairment. However, re-

lying on the fact that the House Report had “urge[d]” the

Secretary to revise the severity criteria in order “ ‘to reflect

the real impact of impairments upon 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 of the 1984 Act did not suggest a congressional in-

tent to permit a finding of non-disability to be based on

medical evidence alone (Pet. App. 10a).

Third, the court held that the regulation is contrary to

judicial decisions that it construed to require that “dis-

ability determinations be made according to a two-step

process, with the claimant first showing an inability to per-

form [his] past relevant work, and the Secretary then

showing that the claimant nevertheless retains the ability

to do other work” (Pet. App. 10a). Because the court

believed that “the severity regulation ignores vocational

factors where a claimant’s impairment is found

nonsevere,” it held that the regulation “conflicts with this

precedent and thus improperly denies benefits to a claim-

ant who has made a prima facie showing of disability” (id.

at 10a-11a).

b. The court of appeals acknowledged, albeit only in a

footnote (Pet. App. 9a n.6), that the Secretary had

aopted a new Social Security Ruling, SSR 85-28, for the

purpose of clarifying the application of the severity stand-

ard at step 2 of the sequential evaluation process. See Pet.

App. 37a-44a. SSR 85-28 reflects both the Secretary’s

ongoing reevaluation of step 2 (see pages 47-48 & note 29,

infra) and the Secretary’s response to concerns expressed

by several courts of appeals that the regulation might be

too strictly applied. The Secretary explained in SSR 85-28

that the current severity regulation, which was promul-

gated in 1978° and revised somewhat in 1980,° was not in-

tended to alter the threshold level of impairment severity

that had been applied prior to 1978. Under the pre-1978

standard, a claimant could be found not to be disabled on

medical evidence alone (i.e., without specific 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). Accordingly, the Secretary emphasized in SSR

85-28 that benefits are to be denied at step 2 of the current

sequential evaluation regulations 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” (Pet. App. 41a).

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.

—s

The court of appeals recognized that SSR 85-28 inter-

prets the severity regulation in the same manner as that ap-

proved by five other circuit courts (Pet. App. 8a-9a n.6).’

However, ‘he court expressed no view on the validity of

SSR 85-28 because it had not then been formally pub-

lished® and because the court in any event concluded that

“the regulation it interprets is inconsistent with the Social

Security Act” (ibid.).

SUMMARY OF ARGUMENT

The severity regulation at issue in this case is applied at

step 2 of the five-step sequential process for the evaluation

of disability claims. It is a screening mechanism that im-

plements the congressional intent that Social Security

disability benefits are to be paid only to those individuals

whose impairments are sufficiently serious that they may

properly be regarded as a substantial cause of their alleged

inability to work. The Secretary is authorized by 42

U.S.C. 405(a) to adopt such regulations for the purposes

of prescribing the procedures and evidentiary showings re-

quired in the adjudication of disability claims and of giv-

ing content to the statutory standards of eligibility. Con-

trary to the court of appeals’ view, the particular regula-

’ 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 (lith Cir. 1984). The fifth ap-

pellate decision cited by the court below was that of the Second Circuit

in Chico v. Schweiker, 710 F.2d 947, 954-955 & n.10 (1983). However,

since the date of the Ninth Circuit’s opinion in this case, the Second

Circuit in another case has affirmed a preliminary injunction barring

the use of the severity regulation. See Dixon v. Heckler, 785 F.2d 1102

(1986), petition for cert. pending, No. 86-2, discussed at note 9, infra.

® SSR 85-28 was published in November 1985 as part of the October

1985 quarterly Social Security Rulings.

tion at issue here is fully supported by the text, legislative

history, and consistent administrative implementation of

the Social Security Act.

The basic s.atutory definition of the term “disability,”

set forth in 42 U.S.C. 423(d)(1)(A), is the “inability to

engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment.”

The severity regulation gives content to and is fully consis-

tent with that definition. Although the regulation requires

that the claimant’s impairment must satisfy a certain

threshold level of severity based on medical evidence

alone, that level of severity is measured essentially in voca-

tional terms: the effect of the impairment on the

claimant’s mental and physical capacity to work. Thus, the

regulation provides that a person is not disabled if he does

not have an impairment (or combination of impairments)

that “significantly limits” his ability to do “basic work ac-

tivities” (20 C.F.R. 404.1520(c)), which are the “abilities

and aptitudes necessary to do most jobs” (20 C.F.R.

404.1521(b)). If the claimant has not shown that his im-

pairment significantly limits his ability to do such “basic

work activities,” then his impairment plainly does not

render him unable to perform “any substantial gainful ac-

tivity” within the meaning of the statutory definition of

“disability” in 42 U.S.C. 423(d)(1)(A).

Moreover, a number of provisions of the Act make clear

that the claimant must demonstrate on the basis of

medical evidence that he has a physical or mental impair-

ment to which his alleged inability to work may properly

be attributed, Section 423(d)(1)(A) itself requires that the

impairment by “medically determinable” and that the in-

ability to work be “by reason of” such an impairment. In

addition, the term “physical or mental impairment” is

defined to mean one that is “demonstrable by medically

acceptable clinical and laboratory diagnostic techniques.”

42 U.S.C. 423(d)(3). As this Court has recognized, the

claimant bears the burden of making such a medical show-

ing (Mathews v. Eldridge, 424 U.S. 319, 336 (1976)), and

that burden is confirmed by 42 U.S.C. (Supp. ID)

423(d)(S)(A), which provides that “{a]n individual shall

not be considered to be under a disability unless he fur-

nishes such medical and other evidence of the existence

thereof as the Secretary may require.”

The court of appeals did not discuss these statutory pro-

visions that support the severity regulation. Instead, it

found the regulation to be inconsistent with 42 U.S.C.

(Supp. II) 423(d)(2)(A), which provides that an individual

shall be determined to be under a disability “only if” his

impairment is “of such severity that he is not only unable

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

education, and work experience, engage in any other kind

of substantial gainful work which exists in the national

economy.” The court of appeals believed that the

reference in this provision to the claimant’s “age, educa-

tion, and work experience” requires a consideration of

these factors in every disability determination and that

benefits therefore cannot be denied on the basis of medical

evidence alone. Contrary to that court’s view, however,

Section 423(d)(2)(A) by its terms states further conditions

of eligibility that must be satisfied before an application

for benefits may be granted. It does not impose any addi-

tional conditions that must be satisfied in order for an ap-

plication to be denied, where the Secretary has determined

that the claimant has failed to satisfy the requirements of

the basic definition ¢* 5 term “disability” in Section

423(d)(1)(A) and imp, _ating regulations —including, as

here, the threshold requirement that the claimant’s :mpair-

ment be severe. Moreover, as the interpretative guidance

in SSR 85-28 makes clear, the severity regulation is consis-

tent with Section 423(d)(2)(A) even if that provision does

impose additional limitations on the denial of an applica-

tion. In SSR 85-28, the Secretary explained that an impair-

ment is found to be “not severe” only when the medical

evidence establishes that the impairment “would have no

more than a minimal effect on [the] individual’s ability to

work even if the individual’s age, education, or work ex-

perience were specifically considered” (Pet. App. 41a).

In any event, the validity of the severity regulation is ex-

pressly confirmed by 42 U.S.C. (Supp. II) 423(d)(2)(C),

which was added by the Social Security Disability Benefits

Reform Act of 1984. This new provision requires that the

combined effect of all of the individual’s impairments be

considered in determining whether his condition is of “suf-

ficient medical severity” that it could be the basis of

eligibility, and further provides that if the Secretary does

find a “medically severe” combination of impairments, the

effect of those impairments shall be considered

“throughout the disability determination process.” The

quoted phrases plainly contemplate the continued use of

the severity step of the sequential evaluation process.

The validity of the severity step of the sequential evalua-

tion process is further confirmed by the legislative history

of the relevant provisions of the Social Security Act and by

the administration of the disability program since its in-

ception in 1954. As an initial matter, the Senate and House

reports on the Social Security Amendinents of 1954 stress

that the claimant must be “totally disabled”; that he must

have both a medically determinable impairment of

“serious proportions” and an inability to work “by reason

of such impairment”; and that the impairment must be of

a “degree of severity” to justify its consideration as the

cause of his failure to obtain substantial gainful work.

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

1987, 83d Cong., 2d Sess. 21 (1954). This expression of

congressional intent firmly supports the requirement that

a claimant’s impairment satisfy a threshold level of sever-

ity. Moreover, the Secretary made clear in instructions

issued to the state agencies immediately after the 1954

amendments were enacted that a person could be found on

medical evidence alone not to be disabled, and this ad-

ministrative interpretation was carried forward in formal

regulations promulgated in 1960. This contemporaneous

implementation of the Act is entitled to great weight.

When Congress enacted 42 U.S.C. 423(d)(2)(A) in the

1967 amendments to the Social Security Act, it did not

overrule or express disapproval of this position reflected in

published regulations since 1960. To the contrary, in

language that is a virtual blueprint for the sequential

evaluation process now in effect, the committee reports on

the 1967 amendments describe three distinct showings the

claimant must make, the first of which is that “he has a

severe medically determinable physical or mental impair-

ment or impairments” (S. Rep. 744, 90th Cong., Ist Sess.

48-49 (1967); H.R. Rep. 544, 90th Cong., Ist Sess. 30

(1967)). After the 1967 amendments were enacted, the

Secretary revised the disability regulations to take account

of those amendments, and he retained the provision in the

1960 regulations that permitted benefits to be denied on

medical grounds alone. This retention reflects a contem-

poraneous and manifestly reasonable understanding by

the Secretary that Congress did not intend in 1967 to over-

turn the Secretary’s formal and longstanding ad-

ministrative interpretation.

The severity regulation at issue in this case, which was

promulgated in 1978 as part of the formal sequential

evaluation process, carries forward this prior ad-

ministrative interpretation and practice under the disabili-

ty program. Congress again declined to disturb this regula-

tion and the statutory interpretation it embodies when it

amended the disability provisions in 1980 and 1982, and

the legislative history of the 1980 amendments in fact

reiterates the intent of the 1967 amendments that the

claimant must demonstrate that he has a “severe medically

determinable” impairment.

Any remaining doubt regarding the validity of the

severity regulation is dispelled by the Social Security

Disability Benefits Reform Act of 1984. As we have said,

amendments made by that Act expressly refer to the deter-

mination of whether the claimant’s impairment is

“medically severe.” But in addition, the committee reports

and floor debates make clear that Congress fully

understood that a claim can be denied as “non-severe” at

step 2 of the sequential evaluation process on the basis of

medical evidence alone, without consideration of the

claimant’s age, education, and work experience; and the

House, Senate, and Conference reports all expressly state

that no departure from that process was intended (except

to the extent of requiring consideration of the combined

effect of multiple impairments). That unambiguous

ratification of the severity regulation is controlling here.

ARGUMENT

THE SEVERITY REGULATION CONSTITUTES, A VALID

EXERCISE OF THE SECRETARY’S AUTHORITY UNDER

42 U.S.C. 405(a) TO ISSUE RULES REGULATING THE

RECEIPT OF EVIDENCE AND MANNER OF PROOF IN

DISABILITY CASES AND TO GIVE CONTENT TO THE

STATUTORY DEFINITION IN 42 U.S.C. 423(d)(1)A) OF

THE TERM “DISABILITY”

The severity regulation invalidated by the court of ap-

peals in this case is an integral part of the five-step sequen-

tial evaluation process 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 principle reflected in the

regulation—that in appropriate circumstances a person

may be denied disability benefits on the basis of medical

evidence alone—has been a feature of the disability pro-

‘gram since its inception in 1954, and that principle has

been endorsed by Congress on a number of occasions since

that time. The requirement that the claimant make a show-

ing on the basis of medical evidence that his impairment

meets a, specified threshold level of severity serves to en-

sure that disability benefits are paid only where the claim-

ant’s physical or mental impairment is found to be a

substantial cause of his inability to work, and thereby to

distinguish the Social Security disability program from

unemployment compensation and similar systems that are

not primarily preiaised on medical incapacity.

The severity regulation also serves an important screen-

ing function in the processing of scores of thousands of

applications each month. The regulation makes it un-

necessary for the decision-maker to engage in an in-

dividualized vocational evaluation where a medical assess-

ment establishes that the claimant’s impairment is suffi-

ciently insubstantial that it reasonably could be expected

not to preclude all substantial gainful activity, irrespective

of the claimant’s age, education, and work experience.

“The need for efficiency is self-evident.” Heckler v. Camp-

bell, 461 U.S. at 461 n.2. In accordance with this premise,

a number of courts of appeals have heid that the severity

regulation constitutes a valid administrative implementa-

tion of the statutory standard of disability. McDonald v.

Secretary of Health & Human Services, No. 86-1288 (ist

Cir. July 17, 1986), slip op. 10-20; Hampton v. Bowen,

785 F.2d 1308, 1311 (Sth Cir. 1986); Garza v. Heckler, 771

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

1099, 1101-1103 (Sth Cir. 1985); Farmer v. Secretary of

Health & Human Services, No. 85-5619 (6th Cir. July 11,

1986); Salmi v. Secretary of Health & Human Services,

774 F.2d 685, 691-692 (6th Cir. 1985); Farris v. Secretary

of Health & Human Services, 773 F.2d 85, 89-90 (6th Cir.

1985); Flynn v. Heckler, 768 F.2d 1273, 1274-1275 (11th

Cir. 1985); Brady v. Heckler, 724 F.2d 914, 918-920 (11th

Cir. 1984); but cf. McCruter v. Bowen, 791 F.2d 1544

(1ith Cir. 1986).’

These decisions of the various courts of appeals that

have sustained the severity regulation are clearly correct.

Heckler v. Campbell, 461 U.S. 458 (1983), establishes the

9 The Fourth Circuit also has sustained decisions of the Secretary

denying benefits based on a finding that the claimant’s impairment

was not severe, albeit without addressing the validity of the severity

regulation. See Gross v. Heckler, 785 F.2d 1163 (1986); Evans v.

Heckler, 734 F.2d 1012, 1014 (1984).

By contrast, in addition to the Ninth Circuit in this case, the Third,

Eighth, and Tenth Circuits have invalidated the severity regulation on

its face, rejecting the contention that it constitutes a reasonable

measure for screening out claimants with relatively minor im-

pairments. See Wilson v. Secretary of Health & Human Services, No.

85-5814 (3d Cir. July 14, 1986), slip op. 9-12; Brown v. Heckler, 786

F.2d 870, 871-872 (8th Cir. 1986); Hansen v. Heckler, 783 F.2d 170,

174-176 (10th Cir. 1986). The Seventh Circuit, in an Illinois-wide class

action, also has invalidated the regulation as applied to certain

categories of claimants. Johnson v. Heckler, 769 F.2d 1202,

1209-1213, reh’g en banc denied by an equally divided court, 776 F.2d

166 (1985), petition for cert. pending, No. 85-1442. Compare Bunch

v. Heckler, 778 F.2d 396, 398-400 & n.4 (7th Cir. 1985). The Second

Circuit, in a New York-wide class action, recently affirmed a

preliminary injunction barring the application of the severity regula-

tion, although the court purported not to finally resolve the question

of the validity of the regulation because it reviewed the preliminary in-

junction under an abuse-of-discretion standard. Dixon v. Heckler,

785 F.2d 1102, 1106-1107 (1986), petition for cert. pending, No. 86-2.

Application of the severity regulation also has been barred by a

preliminary injunction entered almost two years ago in a Ninth

Circuit-wide class action. Smith v. Heckler, 595 F. Supp. 1173 (E.D.

Cal. 1984), appeal pending, No. 85-2178 (9th Cir.). Similar injunctive

orders have been entered in other class actions. See Wilson v.

Secretary of Health & Human Services, supra, Campbell v. Heckler,

620 F. Supp. 469 (N.D. lowa 1985), appeal pending, No. 86-1090NI

(8th Cir.); Bailey v. Bowen, No. 83-1797 (M.D. Pa. Mar. 11, 1986),

appeal pending, No. 86-5038 (3d Cir.); Mason v. Bowen, No. 83-390

(D. Vt. May 21, 1986); Pratt v. Heckler, 629 F. Supp. 1496 (D.D.C.

1986).

governing framework for evaluating the validity of regula-

tions promulgated by the Secretary to regulate the manner

of proof in disability cases and to give content to the

statutory definition of the term “disability.” In Heckler v.

Campbell, the Court considered the validity of the

medical-vocational guidelines that are applied at step 5 of

the sequential evaluation process. The Court observed that

42 U.S.C. 405(a) directs the Secretary to “adopt

reasonable and proper rules and regulations to regulate

and provide for the nature and extent of the proofs and

evidence and the method of taking and furnishing the

same” in disability cases. See 461 U.S. at 466. In the

Court’s view, Congress, through this directive, has “ ‘con-

ferred on the Secretary exceptionally broad authority to

prescribe standards’ ” for applying the statutory definition

of the term “disability.” /bid., quoting Schweiker v. Gray

Panthers, 453 U.S. 34, 43 (1981). “Where, as here, the

statute expressly entrusts the Secretary with the respon-

sibility for implementing a provision by regulation,” a

court’s review “is limited to determining whether the

regulations promulgated exceeded the Secretary’s

statutory authority and whether they are arbitrary and

capricious.” 461 U.S. at 466. The severity regulation plain-

ly suffers from neither defect. To the contrary, the text of

the Act and the legislative and administrative history of

the relevant statutory and regulatory provisions lend over-

whelming support to the regulation—far more so even

than was the case with the medical-vocational guidelines

that were unanimously sustained in Heckler v. Campbell.

A. THE VALIDITY OF THE SEVERITY REGULATION IS

SUPPORTED BY THE STATUTORY DEFINITION OF THE

TERM “DISABILITY” IN 42 U.S.C. 423(d)(1)(A), AS WELL

AS OTHER PROVISIONS OF THE ACT, AND IS EXPRESS-

LY SANCTIONED BY THE SOCIAL SECURITY DISABILI-

TY BENEFITS REFORM ACT OF 1984

The severity step of the sequential evaluation process is

affirmatively supported by the text of a number of the

provisions of the Social Security Act that govern the

disability program. The court of appeals failed to discuss

those provisions, much less to consider their cumulative

effect.

1. In the first place, the severity regulation employed

at step 2 of the sequential evaluation process is directly

tied to and faithfully implements the basic statutory

definition of the term “disability” that applies in the Social

Security disability program. That definition, which was

enacted in the Social Security Amendments of 1954 (ch.

1206, § 106(d), 68 Stat. 1080), provides that the term

“disability” shall mean —

[the] inability to engage in any substantial gainful ac-

tivity 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 ex-

pected to last for a continuous period of not less than

12 months[.]

42 U.S.C. 423(d)(1)(A).'° The corresponding definition

under the SSI program is identical. See 42 U.S.C.

1382c(a)(3)(A). Nothing in this generally worded defini-

tion casts any doubt on the validity of the severity regula-

tion.

10 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 —the so-called disability “freeze.” 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). (Provisions for such a

“freeze” previously were enacted on a contingent basis in Section 3(d)

of the Social Security Amendments of 1952 (ch. 945, 66 Stat. 771), but

those amendments did not take effect. See H.R. Conf. Rep. 2491, 82d

Cong., 2d Sess. 9 (1952); 98 Cong. Rec. 9522 (1952) (remarks of Sen.

Johnson); id. at 9661 (remarks of Rep. Reed).

The definition of the term “disability” enacted in the 1954 amend-

ments is contained in 42 U.S.C. (& Supp. Il) 416(i). That definition

was carried forward verbatim in 42 U.S.C. 423(d)(1)(A), at issue here,

The severity regulation informs the claimant:

If you do not have an 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 experience.

20 C.F.R. 404.1520(c), 416.920(c). The term “basic work

activities” is defined by regulation for these purposes to

mean “the abilities and aptitudes necessary to do most

jobs.” 20 C.F.R. 404.1521(b), 416.921(b). By way of am-

plification, the regulations include examples of such ap-

titudes and abilities: “[pJhysical functions such as walking,

standing, sitting, lifting, pushing, pulling, reaching, carry-

ing, or handling;” “(c]apacities for seeing, hearing, and

speaking;” “[uJnderstanding, carrying out, and remember-

ing simple instructions;” etc. 20 C.F.R. 404.1521(b),

416.921(b).

Although the regulations at issue here thus prescribe a

threshold showing of severity that the claimant’s impair-

ment must satisfy based solely on the medical evidence of

the claimant’s condition (i.e., without specific considera-

tion of his age, education, and work experience), that

severity is measured essentially in vocational terms —the

impact that the impairment has on the claimant’s ability to

perform the “basic work activities” that are “necessary to

do most jobs.” The regulations therefore adhere and give

content to the statutory definition: if the claimant has not

shown that his impairment is so severe as to “significantly

limit” his ability to perform the basic work functions

necessary for most jobs, then he plainly has not

when Congress enacted the Title II disability insurance benefits pro-

gram in 1956. See Social Security Amendments of 1956, ch. 836,

§ 103, 70 Stat. 815. See note 20, infra.

demonstrated, for purposes of the statutory definition, an

“inability to engage in any substantial gainful activity by

reason of [the] impairment” (42 U.S.C. 423(d)(1)(A)). See

Brown v. Heckler, 786 F.2d at 873 (Bowman, J., concur-

ring and dissenting). In other words, as the Secretary ex-

plained in the clarifying guidance contained in SSR 85-28

(discussed at page 10, supra), “[iJnherent in a finding ofa

medically not severe impairment or combination of im-

pairments is the conclusion that the individual’s ability to

engage in SGA (substantial gainful activity] is not se-

riously affected” (Pet. App. 42a).

2. The court of appeals believed, however, that benefits

cannot be denied in this manner on the basis of medical

evidence alone and that the claimant’s age, education, and

work experience (which the court apparently regarded as

the only “vocational” considerations) must be specifically

considered in connection with every application for

disability benefits. See Pet. App. 9a. This reasoning is

seriously flawed for several reasons. In the first place, as

we have just explained, the severity test at step 2 of the se-

quential evaluation process in fact does take vocationally

related considerations into account, because the severity

of an impairment must be measured in terms of its impact

on the claimant’s ability to perform basic work activities.

Furthermore, a number of provisions of the Act make

clear that the claimant must demonstrate, on the basis of

medical evidence, that he has a physical or mental impair-

ment to which his alleged inability to work may properly

be attributed. Only then has the claimant established the

necessary predicate for the finding, required by 42 U.S.C.

423(d)(1)(A), that his alleged inability to engage in any

substantial gainful activity is “by reason of” his impair-

ment.

As an initial matter, Section 423(d)(1)(A) itself requires

that the alleged impairment be “medically determinable.”

Moreover, 42 U.S.C. 423(d)(3) provides that for purposes

of the basic statutory definition of “disability,” a “physical

or mental impairment” is “an impairment that results from

anatomical, physiological, or psychological abnormalities

which are demonstrable by medically acceptable clinical

and laboratory diagnostic techniques.” An applicant for

disability benefits, such as respondent, bears the burden of

establishing the existence of his impairment by such ac-

ceptable medical evidence. See Mathews v. Eldridge, 424

U.S. 319, 336 (1976). This burden is confirmed by 42

U.S.C. (Supp. II) 423(d)(5)(A), which provides that “[a)n

individual shall not be considered to be under a disabiltiy

unless he furnishes such medical and other evidence of the

existence thereof as the Secretary may require.” See

Eldridge, 424 U.S. at 336. All of these provisions support

the propriety of the Secretary’s requirement that the claim-

ant establish through medical evidence that his impair-

ment meets a certain threshold level of severity.''

'! The importance attached to medical evidence of the impairment

is underscored by the amendments to 42 U.S.C. 423(d)(5S) that were

made by Section 3(a)(1) of the Social Security Disability Benefits

Reform Act of 1984 [1984 Act], Pub. L. No. 98-460, 98 Stat. 1799.

Those amendments added the following to the sentence in 42 U.S.C.

(Supp. II) 423(d)(5)(A) that is quoted in the text (emphasis added):

An individual’s statement as to pain or other symptoms shall not

alone be conclusive evidence of disability as defined in this sec-

tion; there must be medical signs and findings, established by

medically acceptable clinical or laboratory diagnostic techniques,

which show the existence of a medical impairment that results

from anatomical, physiological, or psychological abnormalities

which could reasonably be expected to produce the pain or other

symptoms alleged and which, when considered with all evidence

required to be furnished under this paragraph * * *, would lead

to a conclusion that the individual is under a disability. Objective

medical evidence of pain or other symptoms established by

medically acceptable clinical or laboratory techniques (ior exam-

ple, deteriorating nerve or muscle tissue) must be considered in

reaching a conclusion as to whether the individual is under a

disability.

This amendment was intended to codify the existing administrative

policy regarding the evaluation of pain (see 20 C.F.R. 404.1529),

3. The court of appeals did not discuss the authority for

the severity regulation contained in ‘ie basic definition of

“disability” in 42 U.S.C. 423(d)(1)(A) and the additional

statutory provisions, just quoted, that pertain to the

claimant’s burden of producing medical evidence of his

impairment. Instead, in its brief discussion of the

statutory text, the court of appeals looked only to 42

U.S.C. (Supp. I) 423(d)(2)(A), which it believed rendered

the severity regulation invalid on its face. Section

423(d)(2)(A), which was enacted in the Social Security

Amendments of 1967 (Pub. L. No. 90-248, § 158(b), 81

Stat. 868), provides in relevant part:

an individual * * * shall be determined to be under a

disability only if his physical or mental impairment or

pending completion of the study of methods for the evaluation of pain

required by Section 3(b) of the 1984 Act (98 Stat. 1799-1800). See

H.R. Conf. Rep. 98-1039, 98th Cong., 2d Sess. 28-29 (1984); S. Rep.

98-466, 98th Cong., 2d Sess. 23-24 (1984). The statutory provision

regarding the evaluation of pain is made applicable to the SSI \pro-

gram by 42 U.S.C. (Supp. I) 1382c(a)(3)(H).

The relevance to the instant case of this amendment regarding the

evaluation of pain is confirmed by the Senate Report, which explained

that the amendment is consistent with the “clear intent” of Congress

“that benefits be provided only to those who have severe medical con-

ditions which preclude their engaging in substantial gainful activity.”

S. Rep. 98-466, supra, at 23 (emphasis added). See also id. at 24 (em-

phasis added) (“There must be evidence of an underlying medical con-

dition and (1) there must be objective medical evidence to confirm the

severity of the alleged pain arising from that condition or (2) the ob-

jectively determined medical condition must be of a severity which can

reasonably be expected to give rise to the alleged pain.”). Accord, 130

Cong. Rec. $11458 (daily ed. Sept. 19, 1984) (remarks of Sen. Long).

The central importance of evidence of the claimant’s medical condi-

tion is further confirmed by the new “medical improvement” stand-

ards enacted by Congress in Section 2 of the 1984 Act (98 Stat. 1794)

for assessing the continued eligibility of persons who already are

receiving benefits. 42 U.S.C. (Supp. II) 423(f)(1), 1382c(a)(SA). See

H.R. Rep. 98-618, 98th Cong., 2d Sess. 11-13 (1984); S. Rep. 98-466,

supra, at 8-10.

impairments are of such severity that he is not only

unable to do his previous work but cannot, consider-

ing his age, education, and work experience, engage

in any other kind of substantial gainful work which

exists in the national economy * * *.

See also 42 U.S.C. 1382c(a)(3)(B). In the court of appeals’

view, the reference in this provision to the claimant’s “age,

education, and work experience” requires a particularized

consideration of those three factors in every disability

determination, and benefits therefore cannot be denied

solely on the basis of the medical evidence regarding the

severity of the claimant’s impairment. See Pet. App. 5a,

9a.

The court of appeals erred in believing that the language

of Section 423(d)(2)(A) compels a specific consideration of

the claimant’s age, education, and work experience in

every disability determination, irrespective of the nature

of the medical evidence of the claimant’s alleged impair-

ment.'* On its face, Section 423(d)(2)(A) merely states fur-

ther conditions of eligibility that the claimant must satisfy

in order for his application for benefits to be granted: Not

only must he satisfy the requirements of the basic defini-

tion of “disability” in 42 U.S.C. 423(d)(1)(A); in addition,

he will be found to be under a disability “only if” he is

unable to do his previous work and any other kind of

substantial gainful work which exists in the national

economy. Conversely, however, Section 423(d)(2)(A) does

not by its terms impose any conditions that must be

'2 The other courts of appeals that have invalidated the severity

regulation likewise have relied primarily on the reference in 42 U.S.C.

(Supp. 11) 423(d)(2)(A) to the claimant’s “age, education, and work ex-

perience.” See Wilson v. Secretary of Health & Human Services, slip

op. 9-13; Johnson v. Heckler, 769 F.2d at 1210-1211; Hansen v.

Heckler, 783 F.2d at 174; Brown v. Heckler, 786 F.2d at 871-872 &

n.4; cf. Dixon v. Heckler, 785 F.2d at 1104-1105. But see Baeder v.

Heckler, 768 F.2d 547, 551-552 (3d Cir. 1985) (relying on 42 U.S.C.

423(d)(1)(A)).

satisfied in order for the claimant’s application for bene-

fits to be denied, at least where the Secretary has deter-

mined that the claimant has failed to satisfy the re-

quirements of the basic definition of “disability” in Section

423(d)(1)(A) and implementing regulations. In this case,

the Secretary has determined that respondent failed to

satisfy the requirement in the regulations implementing

Section 423(d)(1)(A) that her impairment must meet a

threshold standard of severity. It therefore was un-

necessary for the Secretary to proceed to the additional

conditions of eligibility under Section 423(d)(2)(A), in-

cluding an assessment of respondent's ability to perform

her own past work and a specific consideration of re-

spondent’s age, education, and work experience for pur-

poses of deciding whether she could perform any other

substantial gainful work that exists in the national

economy.!?

Moreover, as SSR 85-28 makes clear, the severity regu-

lation is fully consistent with 42 U.S.C. (Supp. Il)

423(d)(2)(A) even if that provision were construed to limit

the Secretary’s power to deny an application where the

claimant has failed to satisfy the eligibility requirements in

Section 423(d)(1)(A) and implementing regulations. In

SSR 85-28, the Secretary explained that an impairment is

found to be “not severe” only when the medical evidence

establishes that the impairment “would have no more than

a minimal effect on [the] individual’s ability to work even

if the individual’s age, education, or work experience were

specifically considered” (Pet. App. 41a). “Thus, even if an

individual were of advanced age, had minimal education,

and a limited work experience, an impairment found to be

'3 As we explain below (see pages 39-41, infra), this interpretation

of Section 423(d)(2)(A) is confirmed by the legislative history of its

enactment in 1967, which shows (i) that it was enacted because of con-

gressional concern that the basic definition of “disability” in Section

423(d)(1)(A) had been given too broad a construction by the courts,

and (ii) that Congress intended to reaffirm the primary importance of

medical factors in the disability determination process.

not severe would not prevent him or her from engaging in

SGA” (ibid.). As a result, the severity regulation operates

to screen out those claimants who it may reasonably be

presumed would be found not to be disabled if the sequen-

tial evaluation process were to proceed to a specific con-

sideration at step 5 of their age, education, and work

experience, See 43 Fed. Reg. 9296 (1978); McDonald v.

Secretary of Health & Human Services, slip op. 11, 16-17;

Hampton v. Bowen, 785 F.2d at 1311; Farris v. Secretary

of Health & Human Services, 773 F.2d at 90; Brady v.

Heckler, 724 F.2d 914, 920 (lith Cir. 1984) (quoting Ap-

peals Ceuncil Review of Sequential Evaluation Under Ex-

panded Vocational Regulations (1980)).

4. The validity of the severity step of the disability deter-

mination process is in any event expressly confirmed by 42

U.S.C. (Supp. II) 423(d)(2)(C). That paragraph, which

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

Benefits Reform Act of 1984 (98 Stat. 1800), provides (em-

phasis 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 effect of the impairments shall be con-

sidered throughout the disability determination proc-

ess.['*]} .

The first sentence of this new paragraph clearly refers to

the threshold determination of “medical severity” that is

made at step 2 of the sequential evaluation process. And

'4 An identical provision applicable to the SSI program is contained

in 42 U.S.C. (Supp. Il) 1382c(a)(3)(G).

the second sentence just as clearly contemplates that the

subsequent steps of the “disability determination process”

(which include steps 4 and 5, at which the decision-maker

would consider the claimant’s ability to perform his past

work and his age, education, and work experience) will be

reached only “[iJf the Secretary does find a medically

severe combination of impairments” (98 Stat. 1800 (em-

phasis added)). See Johnson v. Heckler, 776 F.2d at 170

(Easterbrook, J., dissenting from denial of rehearing en

banc). In this case, because the Secretary found at step 2

that respondent did not have a medically severe impair-

ment or impairments (Pet. App. 28a), it was unnecessary

for the Secretary to proceed to the subsequent steps of the

disability determination process.

5. In sum, the severity step of the sequential evaluation

process is affirmatively supported by the text of the basic

definition of the term “disability” in 42 U.S.C. 423(d)(1)(A)

and by the other provisions of the Act that underscore the

importance of medical evidence in the disability deter-

mination process. The regulation also is fully consistent

with the further limitations on eligibility in 42 U.S.C.

(Supp. II) 423(d)(2)(A), and it is expressly ratified by the

new provision in 42 U.S.C. (Supp. II) 423(d)(2)(C)

concerning the consideration of multiple impairments.

The court of appeals’ conclusion that the severity regula-

tion conflicts with the text of the Act — which was reached

in a two-sentence discussion of 42 U.S.C. (Supp. II)

423(d)(2)(A) alone (Pet. App. 9a)— therefore is complete-

ly without merit.'°

'S In addition to holding that the severity reguiation conflicts with

42 U.S.C. (Supp. I1) 423(d)(2)(A), the court of appeals also concluded

that the regulation is inconsistent with various court of appeals deci-

sions that it read to mandate that “disability determinations be made ac-

cording to a two-step process, with the claimant first showing an inabili

ty to perform past relevant work, and the Secretary then showing that

the claimant nevertheless retains the ability to do other work” (Pet.

App. 10a-11la). This conclusion is without merit. Nothing in the Social

Security Act suggests that the disability determination process must be

rigidly confined to just two such steps. To the contrary, under 42

U.S.C. 405(a), the Secretary has “ ‘exceptionally broad authority’ ”

(Heckler v. Campbell, 461 U.S. at 466 (citation omitted)) to adopt

rules “to regulate and provide for the nature and extent of the proofs

and evidence and the method of taking and furnishing the same” in

disability cases.

Nor does the Act mandate that a claimant may establish a “prima

facie” case by showing that he is unable to do his past relevant work,

thereby automatically shifting the burden to the Secretary to show

that the claimant nevertheless can perform other work that exists in

the national economy, as the court of appeals also seemed to believe

(Pet. App. 10a, 11a). Indeed, as we show in this brief, the text and

legislative history of the relevant provisions of the Social Security Act

clecrly establish that it is also part of the claimant’s initial burden to

show on the basis of medical evidence that he has an impairment that

satisfies a threshold level of severity. Moreover, of the relevant provi-

sions of the Social Security Act, it is only 42 U.S.C. (Supp. Il)

423(d)(2)(A) that expressly refers to the claimant’s inability to perform

not only his own past work, but also any other substantially gainful

work that exists in the national economy. Section 423(d)(2)(A) was

enacted in 1967 to make explicit these further conditions of eligibility

that must be satisfied before an application for benefits may be

allowed. See pages 25-27, supra. Section 423(d)(2)(A) therefore does

not excuse the claimant from satisfying any other eligibility re-

quirements that are imposed by the basic definition of disability in

Section 423(d)(1)(A) and implementing regulations, including the re-

quirement that the claimant establish the existence of a severe impair-

ment. (f course, if these other requirements are satisfied and the se-

quentiai evaluation proceeds to steps 4 and 5, the burden-shifting rule

to which the court of appeals referred is applicable.

In any event, as the Secretary explained in SSR 85-28 with respect to

the language of the current severity regulation (Pet. App. 42a):

By definition, basic work activities are the abilities and aptitudes

necessary to do most jobs. In the absence of contrary evidence, it is

reasonable to conclude that an individual whose impairments do

not preclude the performance of basic work activities is, therefore,

able to perform his or her past relevant work.

Moreover, SSR 85-28 states that under current procedures, if the “evi-

dence shows that the person cannot perform his or her past relevant

work because of the unique features of that work,” the claim will not

be denied at step 2 and the decision-maker will undertake “further

evaluation of the individual’s ability to do other work considering age,

education and work experience” (ibid.). Compare McDonald v.

Secretary of Health & Human Services, slip op. 17-19 & nn.7-9.

B. THE LEGISLATIVE HISTORY OF THE RELEVANT

AMENDMENTS TO THE SOCIAL SECURITY ACT AND

THE ADMINISTRATIVE HISTORY OF THE DISABILITY

PROGRAM CONFIRM THE VALIDITY OF THE SEVERI-

TY REGULATION

The validity of the severity step of the sequential evalua-

tion process is further confirmed by the legislative history

of the relevant amendments to the Social Security Act and

the administrative history of the disability program since

1954. At virtually every turn, there is strong support for

the regulation, and literally millions of claims have been

tested against the threshold severity standard since the se-

quential evaluation process was formally adopted in 1978.

It is far too late in the experience of the disability program

for a court to hold that the severity regulation is beyond

the Secretary’s statutory authority. Yet there is no indica-

tion that the court of appeals gave any weight to these con

siderations in its almost casual invalidation of one of the

most broadly applicable administrative measures on the

books.

1. The basic statutory definition of the term “disability,”

which was enacted by Congress in 1954 and carried for-

ward in 42 U.S.C. 423(d)(1)(A) in 1956 (see page 20 & note

10, supra), is the “inability to engage in any substantial

gainful activity by reason of any medically determinable

physical or mental impairment.” The Senate and House

reports on the 1954 amendments both stress that this

definition limits the program’s protection to “[o]nly those

individuals who are totally disabled by illness, injury, or

other physical or mental impairment” (H.R. Rep. 1698,

supra, at 23; S. Rep. 1987, supra, at 20. This emphasis on

“total” disability obviously supports the Secretary’s adop-

tion of a mechanism for screening out those claimants

whose impairments are relatively insignificant from a

medical perspective and who therefore are, at most, only

partially disabled.'®

Moreover, the Senate and House Reports on the 1954

amendments contain a detailed explanation of the statu-

tory definition of “disability” that is directly relevant to

the issue in this case:

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 en-

'6 The purpose to limit protection to persons having a “total”

disability was consistently stressed during the consideration of various

disability proposals in the years prior to 1954. See, e.g., Report of the

Committee on Economic Security, H.R. Doc. 110, 76th Cong., Ist

Sess. 8 (1939); Annual Message of the President on Health Security,

H.R. Doc. 120, 76th Cong., Ist Sess. 16 (1939); Senate Comm. on

Finance, Recommendations for Social Security Legislation, S. Doc.

208, 80th Cong., 2d Sess. 74-75 (1949) [hereinafter cited as S. Doc.

208).

In 1949, the House of Representatives passed a bill (H.R. 6000, 81st

Cong., Ist Sess. § 107 (1949)) that provided for the payment of

disability insurance benefits to “totally disabled” individuals. See

H.R. Rep. 1300, 8ist Cong., Ist Sess. 7, 27-30, 104, 107 (1949); 95

Cong. Rec. 13915-13916 (1949). However, the Senate rejected this

provision, largely because of concerns about its potential cost. S. Rep.

1669, 8ist Cong., 2d Sess. 4 (1950); 96 Cong. Rec. 8900-8904 (1950).

As a compromise, Congress added a new Title XIV to the Act to pro-

vide grants to the states for assistance to the “permanently and totally

disabled.” Social Security Act Amendments of 1950, ch. 809, § 351,

64 Stat. 555 ef seq. That program remained in effect until 1974 (see 42

U.S.C. (1970 ed.) 1351 ef seg.), when it was replaced by the SSI pro-

gram that had been enacted in 1972. See note 23, infra; Atkins v.

Rivera, No. 85-632 (June 23, 1986), slip op. 2 n.2.

In 1952, Congress enacted the contingent disability “freeze” provi-

sion, which did not go into effect. See note 10, supra. The term

“disability” was defined under that provision in a manner identical to

that now contained in 42 U.S.C. 423(d)(1)(A). See § 3(d), 66 Stat. 771.

Once again, the provision was viewed as furnishing protection only

for the “totally disabled.” H.R. Rep. 1944, 82d Cong., 2d Sess. 7

(1952); S. Rep. 1806, 82d Cong., 2d Sess. 2 (1952).

gage in substantial gainful work by reason of such im-

pairment * * *. 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. Standards for

evaluating the severity of disabling conditions will be

worked out in consultation with the State agencies.

H.R. Rep. 1698, supra, at 23 (emphasis added); S. Rep.

1987, supra, at 21 (emphasis added).

The first of the two “aspects” of the disability deter-

mination articulated by the congressional reports strongly

supports the Secretary’s adoption of an independent

threshold requirement that the impairment be of “serious

proportions” from a medical perspective alone. Only if

that condition is met should it be necessary for the

decision-maker to consider the second “aspect” of the disa-

bility determination: whether the claimant is unable to

work by reason of “such impairment” —i.e., by reason of

an impairment found to be of “serious proportions.”!’

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

'? The bill also provided that a person would be disabled if he

satisfied a special statutory standard of blindness. See 42 U.S.C.

416(i1)(1)(B). However, the reports state: »

A person who does not meet the statutory definition [of blind-

ness}, but who nevertheless has a severe visual impairment would

be in the same position as all other disabled persons, that is, he

may qualify for a period of disability under the general definition

of disability if he is unable to engage in any substantially gainful

activity by reason of his impairment.

H.R. Rep. 1698, supra, at 23 (emphasis added); S. Rep. 1987, supra,

at 2i (emphasis added). The obvious implication is that if the claim-

ant’s visual impairment were not “severe” (and the claimant had no

other severe impairment), it would be unnecessary for the Secretary

even to consider whether the claimant could engage in substantial

gainful activity.

may even be considered as the cause of the claimant’s

alleged inability to work. This principle affords some

measure of assurance that the claimant’s alleged inability

to work is actually “by reason of” his impairment, as the

Act requires, and not merely coincidental with the ex-

istence of a relatively minor ailment.'* Finally, the third

sentence in the passage supports the Secretary’s decision to

promulgate standards for “evaluating the severity” of im-

pairments that, inter alia, require the claimant to make a

threshold showing that his impairment significantly limits

his ability to do basic work functions.'%

'® Representative Kean made the same point during the floor

debates (100 Cong. Rec. 7445 (1954) (emphasis added)):

There are two aspects to the disability evaluation: The physical

or mental impairment must be (1) of a nature and degree of

severity to justify consideration of its alleged causal connection

with failure to obtain any substantially gainful work, and (2) it

must actually result in loss of substantially gainful work * * *.

'9 It was anticipated from the inception of the disability program

that the Secretary would promulgate regulations to implement the

statutory standard of disability. See S. Doc. 208, at 74 (“The concept

of permanent disability which the Council envisages should be defined

in legislation only in broad terms and should be worked out in detail

through regulations.”); id. at 75 (“The exact limits of what constitutes

‘substantial gainful activity’ should, in the early years of the program,

at least, be defined by regulations.”); 96 Cong. Rec. 8903 (1950)

(remarks of Sen. Douglas) (amendment to make mandatory the

development of “medical guides”). See also House Comm. on Ways

and Means, 93d Cong., 2d Sess., Staff Report on the Disability In-

surance Program 6 (Comm. Print 1974) (“The orginal idea was that

the broad language of the statutory definition would be amplified by

regulations based on operational experience.”); id. at 45-46, 50

(same); Subcomm. on the Administration of the Social Security Laws

of the House Comm. on Ways and Means, 86th Cong., 2d Sess., Ad-

ministration of the Social Security Disability Insurance Program:

Preliminary Report 14, (Comm. Print 1960) [hereinafter cited as

Preliminary Report\ (same); S. Doc. 10, 77th Cong., Ist Sess. Pt. 3, at

53 (1941) (noting desirability of detailed regulations under the Social

Security program); Heckler v. Campbell, 461 U.S. at 466 n.10.

2. The congressional intent that a finding of non-disa-

bility may be based on medical factors alone — where the

claimant has failed to produce medical evidence that he

has an impairment of serious proportions — was reflected

in the Disability Freeze State Manual, which HEW issued

on March 16, 1955, to guide the state agencies in making

disability determinations under the 1954 Act. The Manual

stated by way of introduction (id. § 304.B (emphasis

added)):

In the great majority of cases the State agency will be

able to evaluate the applicant’s impairment or com-

bination of impairments on the basis that it meets or

does not meet the level of severity presented in the

listing of [presumptively disabling] impairments. [See

§§ 321-323, 382-393.] Where a realistic evaluation

cannot be made on the basis of the medical factors

plus cessation of work, the State agency should con-

sider non-medical factors described in the following

sections. [See §§ 324-328, discussing age, education,

and experience.]

This passage makes clear that, in appropriate circum-

stances, a person could be found not to be disabled on

“medical factors” alone (if his impairment “does not meet

the level of severity” in the listings) and that consideration

of the “non-medical” factors of age, education, and ex-

perience would be required only if a “realistic evaluation”

could not be made on the basis of medical factors alone.

See also id. § 314.A (“The impairment must be sufficiently

severe to be the cause of inability to work.”); id. § 321.A.

(“great emphasis should be placed on the nature and

severity of the medical impairment”).?°

Congress has now expressed in statutory form its intent that the

disability program be administered according to such standards

established by the Secretary. See 42 U.S.C. 421(a)(2), 42 U.S.C.

(Supp. Il) 421(j) and (k).

20 The Disability Freeze State Manual was furnished to the Senate

Committee on Finance in connection with its consideration of the

disability benefits program that was enacted in the Social Security

This contemporaneous interpretation of the statutory

standard of disability was subsequently incorporated into

Amendments of 1956. See Social Security Amendments of 1955:

Hearings on H.R. 7225 Before the Senate Comm. on Finance, 84th

Cong., 2d Sess. 39 (1956). We have lodged a copy of the relevant pro-

visions of the 1955 Disability Freeze State Munual with the Clerk of

this Court.

In the Social Security Amendments of 1956, Congress incorporated

verbatim into 42 U.S.C. 423(d)(1)(A) the definition of “disability” ii

had enacted two years earlier in 42 U.S.C. 416(i). See note 10, supra.

The disability determination process was not discussed in detail in the

legislative history of the Social Security Amendments of 1956, as it

was in the committee reports on the 1954 amendments. The House

Report did stress, however, that the bill provided for “a conservative

program of disability insurance benefits” and that under the statutory

eligibility standard, “an individual who is able to engage in any

substantial gainful activity will not be entitled to disability-insurance

benefits even though he is in fact severely disabled.” H.R. Rep. 1899,

84th Cong., Ist Sess. 5 (1955). The latter passage suggests that the ex-

istence of a severe impairment was regarded as a necessary but not suf-

ficient condition of eligibility.

Although the bill passed the House without debate (101 Cong. Rec.

10768-10772 (1955)), the Senate Finance Committee deleted the

disability benefits provision. See S. Rep. 2133, 84th Cong., 2d Sess.

3-4 (1956). However, a disability benefits amendment was adopted on

the Senate floor (102 Cong. Rec. 13037-13056 (1956)), retained in con-

ference (H.R. Conf. Rep. 2936, 84th Cong., 2d Sess. 25-26 (1956)),

and enacted into law. Senator George, the principal proponent of the

amendment in the Senate, stressed that “the applicant for benefits

must present sound and convincing medical evidence that he has a

medically determinable impairment”; that the medical evidence “must

indicate not only the nature of the impairment but also its severity”;

and that the claimant “must prove his case” (102 Cong. Rec.

13038-13039, 15107 (1956)). The Members also repeatedly stressed

during the floor debates that benefits would be available for the

“totally disabled.” See, e.g., 102 Cong. Rec. 13037, 15107 (1956)

(remarks of Sen. George); id. at 12884, 13044 (Sen. Lehman); id. at

13022 (Sen. Jackson); id. at 13024 (Sen. McNamara); id. at 14830

(Rep. Reed); id. at 14831 (Reps. Jenkins and Zablocki); id. at 14832

(Reps. Rodino and Henderson); id. at 14833 (Rep. Roosevelt).

the formal disability regulations prcmulgated by. the Sec-

retary in 1960. 25 Fed. Reg. 8100. This regulation pro-

vided in pertinent part (20 C.F.R. 404.1502(a) (1961) (em-

phasis 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.

This regulation, promulgated pursuant to the Secretary’s

broad authority under 42 U.S.C. 405(a), gave content to

the statutory standard of disability based on the accumu-

lated experience to that date in the administration of the

disability program.?' It therefore has particular signifi-

2! The administrative interpretation of the statutory standard of

disability was brought to Congress’s attention prior to the promulga-

tion of the regulations in 1960. During oversight hearings in 1959,

Robert Ball, then-Deputy Director of the Bureau of Old-Age and Sur-

vivors Insurance, explained:

The “by reason of any medicaiiy determinable physical or men-

tal impairment” is really the heart of the definition. * * * [T]he

distinction between this program and a kind of unemployment in-

surance or unemployment insurance for partially disabled people

is that we have to be able to say that the medically determinable

physical and mental impairment is itself serious enough so that

the individual does not really have the capacity to engage in

substantial gainful activity.

Administration of Social Security Disability Insurance Program:

Hearings Before the Subcomm. on the Administration of the Social

Security Laws of the House Comm. on Ways and Means, 86th Cong.,

ist Sess. 28 (1959) (emphasis added). See also id. at 29 (inability to

engage in substantial gainful activity must be “primarily by reason of”

a medically determinable impairment). Another representative of the

Bureau testified regarding the medical “guides,” which contained

listings of presumptively disabling impairments similar to those now

employed at step 3 of the sequential evaluation process (id. at 342 (em-

phasis added)):

We believe these guides enable us to adjudicate quickly and uni-

formly those applicants who clearly meet the impairment char-

acteristics as defined by the law. A claimant whose evidence

shows that [his] impairment obviously is not the cause for not

working can be easily excluded without using guides. These two

techniques — allowing those who meet or parallel the level of the

guides and excluding claimants with short duration and minimal

impairments — limit more extensive development and evaluation

to a smaller segment of claims.

This witness thus made clear that a full evaluation of a claim — includ-

ing an assessment of the claimant’s age, education and work ex-

perience — was not required where he had only a “minimal impair-

ment.”

In its March 1960 report to the full Committee on Ways and Means

based on the oversight hearings in 1959, the Subcommittee discussed

the Bureau’s approach in terms that also support an independent

severity requirement. See Preliminary Report X VII (emphasis added),

quoting informal statement of Bureau offical (“ ‘such nonmedical fac-

tors as age, education, vocational skills, work experience, etc., must

play a part in deciding whether a given individual with a severe mental

or physical impairment can or cannot engage in substantial gainful ac-

tivity’ ”); id. at 19 (“the individual’s impairment must be the primary

cause of the lack of capacity”); id. at 20 (“major medical

impairments”). After the Subcommittee submitted its report (and

after the Secretary promulgated the regulations discussed in the text),

Congress passed the Social Security Amendments of 1960 (Pub. L.

No. 86-778, 74 Stat. 924 ef seq.), which included amendments to the

disability program (Tit. IV, 74 Stat. 967-970). But although the House

‘and Senate Reports on the 1960 amendments called attention to the

extensive study of the disability program undertaken by the House

Subcommittee (H.R. Rep. 1799, 86th Cong., 2d Sess. 12 (1960); S.

Rep. 1856, 86th Cong., 2d Sess. 15 (1960)), Congress did not include

any amendments to overturn the Secretary’s implementation of the

Statutory standard of disability. This “ ‘congressional failure to revise

or repeal the agency’s interpretation is persuasive evidence that the in-

cance here. Moreover, the regulation, which was revised

slightly in 1965 (33 Fed. Reg. 11749), remained in effect in

essentially identical form until 1978, when the sequential

evaluation regulations were formally adopted. See pages

42-43, infra. Thus, the interpretation of the Act reflected

in the current severity regulation—that a claim may be

denied on the basis of medical evidence alone if the im-

pairment is relatively minor—also has been a consistent

and longstanding one, and it accordingly is entitled to par-

ticular deference by the courts. CFTC v. Schor, No.

85-621 (July 7, 1986), slip op. 10; Pattern Makers v.

NLRB, No. 83-1894 (June 27, 1985), slip op. 19-20;

Chevron U.S.A. Inc.. v.. NRDC, Inc., 467 U.S. 837,

844-845 (1984).??

terpretation is the one intended by Congress.’ ” CFTC v. Schor, No.

85-621 (July 7, 1986), slip op. 11 (quoting NLRB v. Bell Aerospace

Co., 416 U.S. 267, 274-275 (1974)).

22 Regulations promulgated in 1957 likewise stated that “primary

consideration is given to the severity of [the] impairment,” but that

“{cjonsideration is also given to such other factors as the individual’s

education, training and work experience.” 22 Fed. Reg. 4362 (1957),

adding 20 C.F.R. 404.1501(b) (1958). The 1957 regulations did not ex-

pressly state that a claim could be denied on the basis of medical

evidence alone. However, 20 C.F.R. 404.1501(c) (1958), as added in

1957, did provide (22 Fed. Reg. 4362):

It must be established by medical evidence, and where

necessary by appropriate medical tests, that the applicant’s im-

pairment results in such a lack of ability to perform significant

functions —such as moving about, handling objects, hearing or

speaking, or, in the case of a mental impairment, reasoning or

understanding —that he cannot, with his training, education and

work experience, engage in any kind of substantial gainful

activity.

This focus on the effect the impairment has on the claimant’s ability to

perform “significant functions” (and the examples of such functions)

presaged the current severity regulation’s reference to “basic work ac-

tivities” and the accompanying examples of the abilities and aptitudes

embraced by that term.

3. In 1967, Congress reexamined the operation of the

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

the Act. § 158(b), 81 Stat. 868. The court of appeals inter-

preted Section 423(d)(2)(A) essentially as a liberalization

of the disability requirements, under which the Secretary is

barred from denying benefits based on medical evidence,

without also considering the claimant’s age, education,

and work experience. Pet. App. 5a, 9a. There is no sup-

port for this proposition. To the contrary, the legislative

history demonstrates that Congress intended in 1967 to

establish more stringent standards of disability and to

“reemphasize the predominant importance of medical fac-

tors in the disability determination.” S. Rep. 744, 90th

Cong., Ist Sess. 48 (1967). This background obviously

does not support the court of appeals’ view that the enact-

ment of Section 423(d)(2)(A) was intended to prohibit a

policy of denying benefits on the basis of medical evidence

alone in appropriate circumstances.

Moreover, when the 1967 amendments were enacted,

the regulations promulgated by the Secretary in 1960 to

implement the basic statutory definition of “disability”

were already in effect. Those regulations, quoted above,

expressly provided that medical considerations alone

would support a finding of no disability. 20 C.F.R.

404.1502(a) (1966). Yet Congress did not amend 42 U.S.C.

423(d)(1)(A) or otherwise disapprove the formal and

settled administrative construction of the term “disability”

reflected in those regulations. When Congress thoroughly

reexamines a Statutory program and revises it in certain re-

spects, Congress is generally understood to have approved

those aspects of the program that it left unaltered. See

CFTC v. Schor, slip op. 11; FDIC v. Philadelphia Gear

Corp., No. 84-1972 (May 27, [986), slip op. 11; Merrill

Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353,

381-382 (1982).

That conclusion is particularly compelling here. As we

have explained (see pages 25-26, supra), the new 42 U.S.C.

423(d)(2)(A), by its terms, simply made explicit certain ad-

ditional conditions of eligibility: Not only must the claim-

ant establish that he has a mental or physical impairment

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

severity” sufficient to justify its consideration as the cause

of his failure to obtain work, as the committee reports on

the 1954 amendments explained (see H.R. Rep, 1698,

supra, at 23; S. Rep. 1987, supra, at 21 (both quoted at

pages 31-32, supra)); under Section 423(d)(2)(A), a claim-

ant 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 can-

not, 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. (Supp. ID)

423(d)(2)(A) (emphasis added)). Nothing in this further

prerequisite undermines the validity of the preexisting

threshold requirement under Section 423(d)(1)(A) that the

claimant’s impairment be severe from a medical perspec-

tive.

The legislative history in fact confirms that Congress in-

tended no such departure from settled practice. The House

and Senate Reports both explained the method for deter-

mining disability that Congress contemplated:

The bill would provide that such an individual would

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

medically determinable physical or mental impair-

ment or impairments; [ii] that if, despite his impair-

ment Or impairments, an individual still can do his

previous work, he is not under a disability; and [iii]

that if, considering the severity of his impairment

together with his age, education, and experience, he

has the ability to engage in some other type of sub-

stantial gainful work that exists in the national

economy even though he can no longer do his pre-

vious work, he also is not under a disability.

S. Rep. 744, supra, at 48-49 (emphasis added); H.R. Rep.

544, 90th Cong., Ist Sess. 30 (1967) (emphasis ad“ed).

This congressional description is a virtual bluey «int for the

sequential evaluation process that was formally adopted

by the Secretary in 1978. The emphasized passage plainly

supports the requirement at step 2 of the current process

that a claimant make a threshold showing that his impair-

ment is “severe” before it is necessary for the Secretary to

determine at the next steps whether the claimant can do his

past work and whether, in light of his age, education, and

work experience, he can perform any other substantially’

gainful work that exists in the national economy.

Accordingly, when the Secretary in 1968 promulgated

comprehensive disability regulations to take account of

the 1967 amendments, he carried forward the preexisting

authorization in 20 C.F.R. 404.1502(a) for benefits to be

denied on medical evidence alone. 33 Fed. Reg. 11749,

11750 (1968). At the very least, the Secretary’s retention of

this regulation in 1968 reflected a reasonable construction

of the 1967 amendments and their legislative history as not

prohibiting the use of the regulation. The courts therefore

are required to respect that construction. Chevron U.S.+

Inc. v. NRDC, Inc., 467 U.S. at 844-845.?

23 When Congress enacted the SSI program in 1972 (Social Security

Amendments of 1972, Pub. L. No. 92-603, § 301, 86 Stat. 1471), it in-

corporated into 42 U.S.C. 1382c(a)(3)(A) and (B) the definition of the

term “disability” from 42 U.S.C. 423(d)(1)(A) and the further condi-

tions on eligibility in 42 U.S.C. 423(d)(2)(A), without expressing any

disapproval of the longstanding implementation of the statutory stand-

ard of disability 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 presumed to be aware of the interpretation of those provisions and

to intend that interpretation to be applied under the second program.

4. In 1978, the Secretary promulgated the first version

of the regulations that formally established the sequential

evaluation 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(s) is not severe [if it] does not

significantly limit an individual’s physical or mental

capacity to perform basic work-related functions.” 43 Fed.

Reg. 55351 (1978), adding 20 C.F.R. 404.1503(c) (1979).

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 impair-

ment was “slight” (43 Fed. Reg. 55353 (1978)); that “there

is no intention 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

refers to impairments that “have such a minimal effect on

the individual that they would not be expected to interfere

with his or her ability to work, irrespective of his or her

age, education, and work experience” (id. at 9296).*4 The

same severity concept was carried forward again in 1980,

Lorillard v. Pons, 434 U.S. 575, 580-581 (1978). Congress’s action in

1972 thus lends still further support to the validity of the severity

regulation.

24 In a study conducted in 1976, the Comptroller General had

criticized as vague the reference in the then-existing regulations to

“slight” impairments, and he recommended that the regulations be

clarified, with appropriate examples, in order to promote uniformity

of decision-making. Report of the Comptroller General: The Social

Security Administration Should Provide More Management and

Leadership in Determining Who Is Eligible For Disability Benefits

10-11 (1976). The 1978 revisions met those concerns by specifying that

the severity of an impairment should be measured not in the abstract

(e.g., in terms of whether it is “slight”), but rather in terms of its im-

pact on the ability of the claimant to perform basic work-related func-

tions.

ee ee ee eee

when the Secretary revised the disability regulations. See

45 Fed. Reg. 55574 (1980), adding 20 C.F.R. 404.1520 and

404.1521 (1981). The Secretary explained that the more

detailed provisions were expected to result in “greater pro-

gram efficiency” by limiting the number of cases in which

it would be necessary to follow the full vocational evalua-

tion procedures in 20 C.F.R. 404.1545 to 404.1568 and

416.945 to 416.968 (1981). See 45 Fed. Reg. 55574 (1980).

5. It was against this background that Congress

thoroughly studied the Social Security disability program

in the late 1970’s and early 1980’s and extensively revised

certain of the governing statutory provisions. Heckler v.

Day, 467 U.S. 104, 113-118 (1984). Although Congress was

fully aware at that time of the sequential evaluation pro-

cess, and specifically of the severity step in that process,?> it

did not include in the disability amendments of 1980 and

1982 any provision to reject the severity regulation. See

Social Security Disability Amendments of 1980, Pub. L.

No. 96-265, 94 Stat. 441 ef seqg.; Act of Jan. 12, 1983, Pub.

L. No. 97-455, §§ 2-7, 96 Stat. 2498-2502. This failure by

Congress is itself “ ‘persuasive evidence that the interpreta-

tion is the one intended by Congress.’ ” CFTC v. Schor, slip

op. 11 (citation omitted). But in addition, the Senate

Report on the 1980 amendments expressly reaffirmed that

“(t]he 1967 amendments were intended to emphasize the

role of medical facts in the determination of disability,” and

it quoted extensively from the Senate report on the 1967

amendments, which stated that a claimant must be shown

to have “‘a severe medically determinable physical or

25 See. e.g. Disability Insurance Legislation: Hearings Before the

Subcomm. on Social Security of the House Comm. on Ways and

Means, 96th Cong., Ist Sess. 62-63, 82 (1979); Subcomm. on Social

Security of the House Comm. on Ways and Means, 97th Cong., Ist

Sess., Status of the Disability Insurance Program 9-10, 18, 48 (Comm.

Print 1981); Senate Comm. on Finance, 97th Cong., 2d Sess., Staff

Data and Materials Related to the Social Security Disability Insurance

Program 76-78, 110-112 (Comm. Print 1982).

mental impairment or combination of impairments.’ ” S.

Rep. 96-408, 96th Cong., Ist Sess. 13 (1979), quoting S.

Rep. 744, supra, at-48 (quoted at pages 40-41, supra).

The most significant recent development, however, is

the enactment of the Social Security Disability Benefits

Reform Act of 1984. As we shall show, Congress spe-

cifically considered the severity regulation when it passed

the 1984 Act and mandated one change in the application

of the regulation by requiring consideration of the com-

bined effect of separate impairments; but Congress other-

wise expressed its approval of the severity step as a

reasonable screening mechanism. Indeed, as we have ex-

plained (pages 27-28, supra), Congress effectively ratified

the severity step in the text of Section 4 of the 1984 Act

(98 Stat. 1800). The new statutory provisions added by

Section 4 (see 42 U.S.C. (Supp. II) 423(d)(2)(C),

1382c(a)(3)(G)) expressly contemplate that the claimant

may be required to demonstrate that his impairments are

of “sufficient medical severity” to warrant their considera-

tion as the basis of eligibility, and that the subsequent

steps of the “disability determination process” will be

reached only if the Secretary first finds a “medically

severe” impairment or combination of impairments.

The legislative history of Section 4 of the 1984 Act

dispels any possible doubt about Congress’s intent in 1984

to preserve the severity step of the sequential evaluation

process. The Senate report, for example, states that under

“[p]resent law,” “[mJedical considerations alone can

justify a finding of ineligibility where the impairment{ | is

not severe,” and that “[a]n impairment is nonsevere if it

does not significantly limit the individual’s physical or

mental capacity to perform basic work-related functions.”

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

passage, of course, is a virtually verbatim paraphrasing of

the severity regulation. The report then states (ibid. (em-

phasis added)):

;

[T]he Committee wishes to emphasize that the new

rule [requiring 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 factors,

whether the individual’s impairments, considered in

combination, are medically severe. If they are not, the

claim must be disallowed. Of course, if the Secretary

does find a medically severe combination of im-

pairments, the combined impact of the impairments

would also be considered during the remaining stages

of the sequential evaluation process.

The House Report likewise contains an extensive discus-

sion of the sequential evaluation process (H.R. Rep.

98-618, 98th Cong., 2d Sess. 6-8 (1984)), which reflects the

committee’s understanding that if the claimant does not

have a “severe impairment,” the process “goes no further”

(id. at 6). To be sure, as the court of appeals observed

(Pet. App. za-10a), the House Report does express the

committee’s “concern[{]” that the Social Security Ad-

ministration had been eriticized for applying “very strict

criteria” of severity at step 2, without fully evaluating the

individual’s ability to.work (H.R. Rep. 98-618, supra, at

7), and the Report notes that “[t]his criticism ha[d] been

particularly strong in the case of multiple impairments”

(id. at 6). But the Report at the same time makes clear the

committee’s view “that in the interests of reasonable ad-

ministrative flexibility and efficiency, a determination that

76 Quoting S. Rep. 744, supra, at 48, quoted at page 40, supra.

a person is not disabled may be based on a judgment that

the person has no impairment, or that the impairment or

combination of impairments [is] slight enough to warrant

a presumption that the person’s ability to work is not

seriously affected” (id. at 8). The Report recognizes that

- “It)he ‘current sequential evaluation’ process allows such a

determination,” and states that “the committee does not

wish to eliminate or seriously impair the use of that proc-

ess” (ibid.).

Accordingly, the House, like the Senate, mandated a

change in the severity step of the sequential evaluation

process only to the extent of requiring consideration of the

combined effect of multiple impairments. In all other

respects, the House, again like the Senate, left the severity

step intact and endorsed its continued use,?’ although the

House committee noted that the Secretary planned to

reevaluate the criteria for nonsevere impairments and

“urge[d] that all due consideration be given to revising

those criteria to reflect the real impact of impairments

upon the ability to work” (H.R. Rep. 98-618, supra, at 8).

In light of the agreement of the House and Senate, it is

not surprising that the Conference Committee likewise

preserved and endorsed the use of the severity step, modi-

fying it only to the extent of requiring consideration of the

combined effect of multiple impairments. Thus, the Con-

ference Report recognizes that “[u]nder current policies, if

a determination is made that a claimant’s impairment is

not severe, the consideration of the claim ends at that

27 Both the House and Senate did so despite criticism of the severity

step during the hearings. See Social Security Disability Insurance:

Hearings Before the Subcomm. on Social Security of the House

Comm. on Ways and Means, 98th Cong., Ist Sess. 197-205 (1983);

Social Security Disability Insurance Program: Hearings Before the

Senate Comm. on Finance, 98th Cong., 2d Sess. 234-237 (1984). Com

pare Heckler v. Day, 467 U:S. at 114 n.24.

point” (H.R. Conf. Rep. 98-1039, 98th Cong., 2d Sess. 30

(1984)). The Conference Report then continues (ibid. (em-

phasis 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 impair-

ment or combination of impairments is slight enough

to warrant a presumption, even without a full evalua-

tion of vocational factors, that the individual’s ability

to perform SGA is not seriously affected. 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 (Pet. App.

8a-9a), it is difficult to see how Congress in 1984 could

more clearly have expressed its intent to permit continued

use of the severity step based on medical evidence alone,

and not to require the decision-maker at that step either to

consider whether the claimant can perform his own past

work or to take into account the claimant’s age, education,

and work experience.?*® The fact that Congress recognized

28 This conclusion is confirmed by the remarks of Senator Long

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

The conference agreement, with minor language changes of a

technical nature, follows the Senate approach. This language

clearly indicates that Congress envisions a sequential approach to

evaluating disability. The individual must first demonstrate the

existence of an impairment or combination of impairments which

are sufficiently severe from a medical standpoint as to meet the

Secretary’s criteria as to what could potentially be a disabling

that the Secretary intended to reevaluate the criteria for

determining what impairments are severe does not au-

thorize a court to invalidate the regulation altogether, as

the court below did in this case (Pet. App. 10a).?9

indeed, diring the floor debate on the Conference

Report, Senator Long, a ranking member of the Con-

ference Committee, specifically observed that “[s]ome

courts * * * have ruled that the Secretary cannot deny

condition. If, and only if, the individual meets this test, there

would be a further evaluation as to whether that condition or

combination of conditions does in fact preclude him from engag-

ing in substantial work activity in the light of his age, education

and work experience.

No Senator or Representative expressed a contrary view. Compare id.

at H9836 (remarks of Rep. Pickle, the House floor manager) (com-

bined effect of impairments must be considered in determining

whether the claimant’s impairments are “medically severe enough” to

qualify him for benefits).

29 The Secretary has taken several steps in furtherance of the

reevaluation to which the House and Conference Reports referred.

First, in April 1985, the Secretary rescinded SSR 82-55 (1982), which

had provided a list of illustrative examples of impairments generally

considered to be non-severe. See SSR 85-III-I1, at 47 (Apr. 1985). The

court of appeals cited this ruling (Pet. App. 10a-lla 1.8), but without

noting that it had been rescinded. Second, in November 1985, the

Secretary issued SSR 85-28, discussed at pages 10, 26-27, 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 combina-

tion 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 experience were .pecifically considered” (Pet.

App. 4la). This description of the manner in which the severity

regulation is to be applied clearly comports with the House Report’s

urging that the criteria for identifying non-severe impairments “reflect

the real impact of impairments upon the ability to work” (H.R. Rep.

98-618, supra, at 8). In addition, SSR 85-28 cautions adjudicators

resolving disability claims at the administrative level that “[g]reat

care” should be used in applying the non-severe concept (Pet. App

44a) and that denials at step 2 are appropriate only when the medical

evidence clearly establishes that the impact of medical impairments is

minimal or slight (id. at 42a).

claims solely on the basis that the individual has no severe

medical condition but must always make an evaiuation of

vocational capacities” (130 Cong. Rec. S11458 (daily ed.

Sept. 19, 1984)).2° But Senator Long stressed that the —

Senate bill, after which the conference bill was patterned

(see note 28, supra), had been “carefully drawn to reaffirm

the authority of the Secretary to limit benefits to only

those individuals with conditions which can be shown to

be severe from a strictly medical standpoint—that is,

without vocational evaluation” (130 Cong. Rec. S11458

(daily ed. Sept. 19, 1984)). The decision of the court of ap-

peals cannot be reconciled with this considered judgment

by Congress.

6. The Secretary promulgated revised versions of 20

C.F.R. 404.1520, 404.1521, 416.920 and 416.921 in March

1985. In accordance with the text and legislative history of

Section 4 of the 1984 Act, these new regulations take into

account the combined effect of multiple impairments, but

otherwise leave in place the step 2 requirement that the

claimant demunstrate a medically severe impairment 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 these regulations that Congress intended when

it passed the 1984 Act to continue to permit the denial of a

claim based solely on medical evidence that the claimant’s

impairment is not severe (see 50 Fed. Reg. 8726 (1985)).

That manifestly is a permissible interpretation of Con-

gress’s action in 1984, and the severity regulation should

have been sustained by the court of appeals on this ground

alone. Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. at

844-845. This conclusion is all the more compelled when

Congress’s most recent action is considered in light of the

firmly established nature of the severity regulation in the

administration of the disability program since 1954 and

ruling in this case (Pet. App. 5a, 9a).

the consistent pattern of support for the regulation in the

legislative history of prior amendments to the Social

Security Act.

CONCLUSION

The judgment of the court of appeals should be reversed

and the case should be remanded to that court for a deter-

mination of whether there is substantial evidence to sup-

port the Secretary’s decision that respondent has not estab-

lished the existence of a “severe” impairment within the

meaning of 20 C.F.R. 404.1520(c) and 404.1521.

Respectfully submitted.

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

ROBERT S. GREENSPAN

MARK B. STERN

Altorneys

AUGUST 1986

APPENDIX

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

1. Section 223(d)(1)(A), (2)(A) and (C) of the Social

Security Act, as codified at 42 U.S.C. (& Supp. II)

423(d)(1)(A), (2)(A) and (C), provides:

(d) “Disability” defined

(1) The term “disability” means —

(A) inability to engage in any substantial gainful

acitivity 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 ex-

pected to last for a continuous period of not less than

12 months; * * *

* * * * *

(2) For purposes of paragraph (1)(A)—

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

pairment 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 ap-

plied for work. For purposes of the preceding

sentence (with respect to any individual), “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.

* * * * *

(la)

Security Act, as codified at 42 U.S.C. (& Supp. Il)

Or mental impairment or impairments are of a suffi-

cient medical severity that such impairment or im-

pairments could be the basis of eligibility under this

section, the Secretary shall consider the combined ef-

fect 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 im-

pairments, the combined impact of the impairments

shall be considered throughout the disability deter-

mination process.

Section 1614(a)(3)(A), (B) and (G) of the Social

1382c(a)(3)(A), (B) and (G), provides:

(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 im-

pairment which can be expected to result in death or

which has lasted or can be expected to last for a con-

tinuous 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 in-

dividual shall be determined to be under a disability

only if his physical or mental impairment or im-

pairments are of such severity that he is not only

‘unable to do his previous work but cannot, consider-

ing his age, education, and work experience, engage

in any 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.

ee el

For purposes of the preceding sentence (with respect

to any individual), “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.

* * * * *

(G) In determining whether an individual’s physical

Or mental impairment or impairments are of a suffi-

cient medical severity that such impairment or im-

pairments could be the basis of eligibility under this

section, the Secretary shall consider the combined ef-

fect 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 im-

pairments, the combined impact of the impairments

shall be considered throughout the disability deter-

mination process.

* - - » *

3. 20C.F.R. 404.1520 and 404.1521 provide:

§ 404.1520 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

determine that you are not disabled. If you are not

doing substantial gainful activity, we will first con-

sider 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 current work activity, the

severity of your impairment(s), your residual func-

tional capacity and your age, education, and work ex-

perience. 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

medical condition or your age, education, and work

experience.

not have any impairment or combination of im-

pairments 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 experience. 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 im-

pairment(s) which meets the duration requirement

and is listed in Appendix 1 or is equal to a listed im-

pairment(s), we will find you disabled without con-

sidering your age, education, and work experience.

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

doing past relevant work. If we cannot make a deci-

sion based on your current work activity or on

medical facts alone, and you have a severe impair-

ment(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 func-

tional 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.

Cg Cat tetra ecci egtES

(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

combination 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 in-

clude —

(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.

4. 20C.F.R. 416.920 and 416.921 provide:

§ 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

determine that you are not disabled. If you are not

doing substantial gainful activity, we will first con-

sider 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 current work activity, the

severity of your impairment(s), your residual func-

tional capacity and your age, education, and work ex-

perience. 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 condition or your age, education, and work

experience.

not have any impairment or combination of im-

pairments 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 experience.

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

listed impairment in Appendix 1. If you have an im-

pairment(s) which meets the duration requirement

and is listed in Appendix 1 or is equal to a listed im-

pairment(s), we will find you disabled without con-

sidering your age, education, and work experience.

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

doing past relevant work. If we cannot make a deci-

sion based on your current work activity or on

medical facts alone, and you have a severe impair-

ment(s), we then review your residua! 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 other work. (1) If you cannot do any work you

have done in the past because you have a severe im-

pairment(s), we will consider your residual functional

capacity and your age, education, and past work ex-

perience to see if you can do other work, If you can-

not, we will find you disabled.

(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).

[SO 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

combination 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 in-

clude —

(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.

U.S. GOVERNMENT PRINTING OFFICE: 1986— 491-507/20293

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.