Respondents Brief — Bowen v. Yuckert

i

QUESTIONS PRESENTED

Whether the court of appeals properly invalidated the

severity regulation, 20 C.F. R. 404.1520(c), which autho-

rizes the Secretary to summarily deny benefits on medical

evidence alone to claimants who might be able to establish

that their medical impairments render them unable to do

their past work, or other work, if appropriate considera-

tion of statutorily identified vocational factors were not

precluded by the regulation.

ii

TABLE OF CONTENTS

QUESTION PRESENTED............--.ccccceecccee.

COUNTIERGTATEMENT «o.oo. ccc cc cccccccccccececcee.

Summary of Argument .................0ccecceeeee.

ARGUMENT

I. THE SEVERITY REGULATION AND THE STEP Two

IT.

THRESHOLD SCREENING TEST THAT THE SECRE-

TARY APPLIED PURSUANT TO THAT REGULATION,

VIOLATE THE SocIAL Security ACT ..........

A. The Statutory Definition Of Disability

Requires That A Claimant’s Impairments Be

Evaluated In Terms Of Their Effect On His

Actual Ability To Work. ...................

. The Legislative History Of The Social Security

Act And Its Amendments Demonstrates That

Congress Endorsed Nothing More Than A De

Minimis Severity Step. ...................

INVALIDATION OF THE SEVERITY REGULATION Is

AN APPROPRIATE REMEDY TO RESOLVE THE Con-

FLICT BETWEEN THE SociAL SEcuRITY ACT AND

THE ILLEGAL SCREENING STANDARD AUTHO-

RIZED BY THE SEVERITY REGULATION .........

COMORES. . io ccccocecesscuenvensntnl

Se

18

18

32

TABLE OF AUTHORITIES

Page

CASES

Baeder v. Heckler, 768 F.2d 547 (8rd Cir.

RO en a a 11, 17, 31, 35, 38

Bastien v. Califano, 572 F.2d 908 (2d Cir. 1978)........ 20

Bowen v. City of New York, 106 S.Ct. 2022 (1986). 20, 30, 40

Brady v. Heckler, 724 F.2d 914 (11th Cir. 1984)........ 17

Brown v. Heckler, 786 F.2d 870 (8th Cir. 1986).... 17, 44, 46

Channel v. Heckler, 747 F.2d 577 (10th Cir. 1984) ...... 21

Chico v. Schweiker, 710 F.2d 947 (2d Cir. 1983) ........ 45

Choratch v. Finch, 438 F.2d 342 (8d Cir. 1971)......... 20

Chrysler Corp v. Brown, 441 U.S. 181 (1979).......... 43

Delgado v. Heckler, 772 F.2d 570 (9th Cir. 1983) ....... 11

Detamore v. Schweiker, 569 F.Supp. 288 (E.D.Pa. 1983) 25

Dixon v. Heckler, 589 F.Supp. 1494 (S.D.N.Y.) aff'd, 785

F.2d 1102 (2d Cir. 1986), petition for cert. filed, 55

U.S.L.W. 3017 (July 15, 1986) (No. 86-2) 5, 11, 17, 38, 39

Espinoza v. Farah Manufacturing Company, 414 U.S. 86

aan ae a 46

Estran v. Heckler, 745 F.2d 340 (5th Cir. 1984) ........ 17

Evans v. Heckler, 734 F.2d 1012 (4th Cir. 1984)....... 17, 27

Farris v. Secretary of Health and Human Services, 773

EE 17

Federal Maritime Commission v. Seatrain Lines, 411

es as cawesececees es 46

Francis v. Heckler, 749 F.2d 1562 (1ith Cir. 1985)...... 21

Garrett v. Richardson, 471 F.2d 598 (8th Cir. 1972) .... 21

General Electric Company v. Gilbert, 429 U.S. 125(1976) 46

Glover v. Heckler, 588 F.Supp. 956 (S.D.N.Y. 1984) .... 27

Hall v. Secretary of Health, Education and Welfare, 602

EE 21

Hansen v. Heckler, 783 F.2d 170 (10th Cir. 1986).... passim

Heckler v. Campbell, 461 U.S. 458 (1983) 4, 11, 20, 21, 26, 46

Hernandez v. Weinberger, 493 F.2d 1120 (1st Cir. 1974). 20

Hormel v. Helvering, 312 U.S. 552 (1941)............. 30

Johnson v. Heckler, 769 F.2d 1202 (7th Cir. 1985), reh’g.

denied 776 F.2d 166 (1985), petition for cert. filed, 54

U.S.L.W. 3600 (Mar. 11, 1986) (No. 85-1442) 11, 17, 24, 40

Layne & Bowler Corp. v. Western Well Workers, 261 U.S.

ee et eee eee wewasecescoceses 44

iv

Table of Authorities Continued

Page

Leschniok v. Heckler, 713 F.2d 520 (9th Cir. 1983)...... 25

Lewis v. Weinberger, 515 F.2d 584 (5th Cir. 1975)....... 20

Martin v. Heckler, 748 F.2d 1027 (5th Cir. 1984) ....... 27

McCruter v. Bowen, 791 F.2d 1544 (11th Cir. 1986). .... 17

McDonald v. Heckler, 795 F.2d 1118 (1st Cir. 1986) 17, 40, 47

Meneses v. Secretary of Health, Education and Welfare,

442 F.2d 803 (Ds 4 Woe AAS 20, 28

Mowery v. Heckler, 771 F.2d 966 (6th Cir. 1985)........ 27

O’Banner v. Secretary of Health, Education and Welfare,

Se Gee EE GO GE DTD fb vvicccccceccsccccesss 21

Paskel v. Heckler, 768 F.2d 540 (3d Cir. 1985).......... 25

Reagle v. Gardner, 261 F.Supp. 184 (D.Mont. 1966) .... 39

Salmi v. Heckler, 774 F.2d 685 (6th Cir. 1985). .... 17, 27, 33

Securities and Exchange Commission v. Sloan, 436 U.S.

PA oto Sdad bh oaeeSccndvecdscetceveces: 46

Securities Industry Association v. Board of Governors,

SD AN edb tcocevcsessediccocses 46

Smith v. Butler, 336 U.S. 161 (1961)......:........... 44

Smith v. Califano, 592 F.2d 1235 (4th Cir. 1979) ....... 20

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

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

Se Sas house cubedddieeheetaNeede baicse es 10

Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974)...... 21

Stone v. Heckler, 752 F.2d 109945th Cir. 1985) 17, 31, 38, 39, 44

Swann v. Charlotte-Mecklenburg Board of Education,

te ree oe re ieee 45

Thorpe v. Housing Authority of Durham, 386 U.S. 670

TN vakhas skadbodnilehedbisededsshusbesececs 29

Tigner v. Gardner, 356 F.2d 647 (5th Cir. 1966) ........ 39

Williamson v. Secretary of Health and Human Services,

oe ree 27

Wilson v. Heckler, 622 F.Supp. 649 (D.N.J. 1985), affd,

796, F.2d 36 (3d Cir. 1986) ie iii deuds desews 17, 31

Wimmer v. Celebrezze, 355 F.2d 289 (4th Cir. 1966). .... 39

Yuckert v. Heckler, 774 F.2d 1365 (9th Cir. 1985). .... 11, 40

Vv

Table of Authorities Continued

Page

STATUTES

Pub. L. No. 89-97, §303(a), 79 Stat. 286 (amending 42

U.S.C. § 423(d)(1)(A) (1956)... 6 ee eee ee eee

Pub. L. No. 98-460, 98 Stat. 1794 (1984)........... 2, 9, 40

ns cn cou hncenss seebseneccceses 29, 30

42 U.S.C.

$$401 et SEQ 0... ccc cece eee cece eee eeeeeeeees 2

eas. culpa ecnsstebeseebéneseuesoeedy 2

DARED, ... oc cccccccccccccnccecccccoeconces 29

DA ERPORD. . cc ccc cccccansecscoes 12, 15, 18, 19, 28

ROGER), 6 oc ccc cccccccscccccccccecccees passim

DAEINGINEID oo cc ccc ccvccccccesecccccscocccsens 20

Se PTTTETTTTTET TELE LITT 2

REGULATIONS

20 C.F.R.

os cc dcdadscnavedescecevtcrocccaveeess es 5

§ 404.1501 (b) (1958)... 2. ccc cece cece cece cece 2

DIO. co ccccveccccccscscsccosscecescooscs 5

BND, oc ccccccececcccecccssecccacsescees 24

RR... cacicccccecseetctnerescees seueces 24

RA, vc ccccccccccvccccsccnesccecesecsccese 7

cc vcccsvcdvdcvdcecdscevscdseseveveess 20

nk. cc dvdsdasessenetedesedeesbeneseoes 25

oi cecacdnveeeseseescaseesessseeeos 7

MISCELLANEOUS

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

RE MEL. «oc cendapasecesesceceyecnqeeress 36, 37

Associate Commissioner for Disability, Social Security

Administration, “Report on the Not Severe Case

Study,” (March 14, 1986)..........0-eeeeeeeeeees y

Disability Freeze State Manual (Mar. 16, 1955)....... 35, 36

22 Fed. Reg. 4362 (June 20, 1957). ......--.---eeeeees 2, 33

25 Fed. Reg. 8100 (Aug. 24, 1960)..........-------+- 3, 38

43 Fed.Reg. 9284 (March 7, 1978)........-+++++++e05: 4

43 Fed. Reg. 55357 (November 28, 1978) .......------. 4

vi

Table of Authorities Continued

Page

43 Fed. Reg. 55359 (November 28, 1978) ........... . 28

45 Fed. Reg. 55556 (August 20, 1980)................. 5

45 Fed. Reg. 55574 (August 20, 1980)................. 6

Final Report of Workgroup—DECISION, 1983........ 8

H.Conf.Rep. No. 1030, 90th Con .» lst Sess. (1967),

reprinted in [1967] U.S. Code ong. & Admin. News

Me $4 Cbd de Wswe thaws ves debeeseseossceecs 3

H.Rep. No. 1189, 84th Cong., Ist Sess. (1955)....... 33, 34

H.Rep. No. 618, 98th Cong., 2d Sess. reprinted in [1984]

.S. Code Cong. & Ad. News 3058 .............. 30

H.Rep. No. 98-1039, 98th Cong., 2d Sess.., reprinted in

[1984] U.S. Code Cong. & Ad. News 3087.... 41, 42, 43

Memorandum from Ap als Council to Office of Policy and

Procedure, on ‘Recodification of Regulations on

Determining Disability and Blindness,” August 8,

SERN a t4G 4s date deudasvedcdede eens incenccex. D, 6

S.Rep. No. 744, 90th Cong., Ist Sess. (1967) .......... 3

——_ No. 1669, 81st Cong., 2d Sess., reprinted in [1950]

.S. Code Cong. & Ad News 3287............... 25

S.Rep. No. 1987, 83rd Cong., 2d Sess. (1954).......... 35

Social Security Administration State Letter No. 174

§ 3420 (April 16, 1952).....................00. 34

Social Security Ruling

ae nnd od cnn dens buy osnets oceoins 6, 7, 26

NS EN EE een aR a RE te 7,9, 11, 26

DE MPtenesunneh isd cceedsikacaus 8, 9, 12, 17, 29, 30

hid beta ten did biel beret. Domes be 7

NS Chis windedldseuhceecutsousdiuatiwc: 7,9

Staff of House Comm. on Ways and Means, 99th Cong., 2d

Sess., Background Material on Programs Within the

Jurisdiction of the Committee on Ways and Means

a eee eee 4, 29

COUNTERSTATEMENT

The Secretary purports to vindicate the severity reg-

ulation as a consistent and longstanding interpretation of

- the Social Security Act. As Respondeni sets forth below,

the history of the regulation reveals that the Secretary

originally implemented the Act as allowing no more than a

de minimis threshold test for screening out meritless

claims. In recodifying the “slightness standard” in 1978,

however, the Secretary effected a substantive change in

the threshold standard, which he enforced through bind-

ing instructions to agency adjudicators. Thus, at all times

relevant to this case, the Secretary's interpretation of the

Act as implemented through the severity regulation was

far from consistent with his original interpretation.

Rather, he construed and applied the severity regulation

so as to deny meritorious disability claims, and

improperly increase the claimant’s burden of proof in dis-

ability determinations.

1. The statutory definition of disability, adopted for

the Social Security disability program in 1954! is an

inability to engage in any substantial gainful activity

by reason of any medically determinable mental or

physical impairment which can be expected to result

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

of long-lasting and indefinite duration... .

1 This definition was adopted for use in the current disability bene-

fits program in 1956. 42 U.S.C.§ 423(d)(1)(A) (1956) (amended 1965).

The 1965 amendment required the impairment to be one “which has

lasted or can be expected to last for a continuous period of not less

than 12 months. . . .” Pub. L. No. 89-97, § 303(a), 79 Stat. 286 (amend-

ing 42 U.S.C. ” 423(d)(1)(A) (1956).

42 U.S.C. §416(i) (1954).?

Regulations implementing the 1954 statute made clear

that the vocational factors of “education, training and

work experience” were to be considered in determining

“whether an individual's impairment makes him unable to

engage in. . . [substantial gainful] activity.” 20 C.F.R.

§ 404.1501(b) (1958); 22 Fed.Reg. 4362 (June 20, 1957).

Subsequent revisions to the regulations reiterated that:

Conditions which fall short of the levels of severit

indicated [for automatic eligibility] must also be eval-

uated in terms of whether they do in fact prevent the

individual from engaging in any substantial gainful

activity, taking into account his age, education,

training and work experience.

25 Fed. Reg. 8100 (Aug. 24, 1960) (emphasis added).

A claim could only be denied on medical grounds alone if

the impairment was so slight that no one could be found

disabled following a full evaluation. Thus the regulations

promulgated in 1960 stated that:

[MJedical considerations alone may justify a finding

that the individual is now under a disability where

the only impairment is a slight neurosis, slight

impairment of sight or hearing, or other similar

abnormality or combination of cnevuialitien.

2 The disability program for disabled workers is now codified in

Title II of the Act, 42 U.S.C. §§ 401 et seg. Title XVI of the Act, 42

U.S.C. §§ 1381 et seq., establishes the Supplemental Security Income

Program (“SSI”) for disabled persons who are financially needy.

Many claimants qualify for benefits under both programs, and the

relevant statutory provisions and the implementing federal regula-

tions defining disability are identical for the two programs. Because

Respondent's current claim is for Title II disability benefits only, this

brief refers to the Title II statutory and regulatory provisions.

3

25 Fed. Reg. 8100 (Aug. 24, 1960).

2. The 1967 amendments to the Act codified the voca-

tional considerations contained in the Secretary’s contem-

poraneous interpretation of the 1954 Act. The

amendments provided that:

(A) an individual (except a widow, surviving

divorced wife, widower or surviving divorced hus-

band for purposes of section 420(e) or (f) of this title)

shall be determined to be under 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, edu-

cation 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.

42 U.S.C. § 423(d)(2)(A) (emphasis added).

The 1967 amendments also provided benefits for dis-

abled surviving spouses. Both the Senate Report and the

Conference Report emphasized that the test of disability

for surviving spouses was “more restrictive than that for

disabled workers and childhood disability beneficiaries” in

that determinations “would be based on the level of sever-

ity of the impairment . . . without regard to nonmedical

factors such as age, education, and work experience,

which are considered in disabled workers cases.” S. Rep.

No. 744, 90th Cong., Ist Sess. (1967) (emphasis added);

see also H.Conf.Rep. No. 1030, 90th Cong., 1st Sess.

(1967), reprinted in [1967] U.S. Code Cong. & Admin.

News 3197-3198.

3. In 1978, the Secretary first promulgated regula-

tions stating that a claim could be denied on the ground

4

that it was “not severe.” 43 Fed. Reg. 9284, 9303 (March 7,

1978). In introducing this language, he stated that it was

“not intended to alter the levels of severity for a finding of

disabled or not disabled on the basis of medical considera-

tions alone, or on the basis of medical and vocational

considerations.” Jd. at 9297. He represented that this

regulation (“the severity regulation”) referred only to

impairments that “have such a minimal effect on the indi-

vidual 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.” Jd. at 9296.3

When the 1978 regulations were published in final form,

the Secretary noted in the comments section that it had

been suggested “that the term [not severe] indicates a

change in definition of disability, while another [com-

menter] believed it could be seen as a device to limit

entitlement.” 43 Fed.Reg. 55357 (November 28, 1978).

The Secretary reiterated that the regulations were not

intended to alter the levels of severity for a finding of

disabled or not disabled. Jd. at 55358. The Secretary

further stated that “the bu. ‘en of proof remains as estab-

lished in the case law and observed vy SSA [Social Secur-

ity Administration].” Jd. at 55359. Despite these

assurances, the percentage of claims denied on medical

grounds alone in the Title II program rose from 8.4% in

1975 to over 40% in 1979.4

3 The severity regulation was introduced as the second of a series of

questions used to evaluate disability claims called the “sequential

evaluation.” See Heckler v. Campbell, 461 U.S. 548, 460 (1983).

* Staff of House Committee on Ways and Means, 99th Cong. 2d

Sess., Background Material and Data on Programs Within the

Jurisdiction of the Committee on Ways and Means, (Comm. Print

1986) at 114. The statistical evidence shows that the increase in

severity denials began even before the official promulgation of the

severity regulation. One court has noted that there is evidence that

5

4. In 1980, the Secretary renumbered and rewrote

the regulations. 45 Fed. Reg. 55556 (August 20, 1980). The

rewritten regulations stated that an impairment would

not pass the severity threshold unless it “significantly”

restricted the ability to engage in specified basic work

activities. The severity regulation is now codified at 20

C.F.R. 404.1520(c).

The Appeals Council, the highest adjudicative body of

the Social Security Administration (SSA) (see 20 C.F.R.

§ 404.981), commented on these regulations when they

were first proposed. It stated that the concept of a “signifi-

cant” limitation on basic work activities was inconsistent

both with the Secretary’s stated position that the severity

regulation was not intended to change the previous reg-

ulatory concept of slightness and with the definition in the

preamble to the regulation which phrased the inquiry in

terms of “any” limitation.> The Appeals Council also

the severity regulation was enforced prior to its publication through

internal administrative actions. See Dixon v. Heckler, 589 F.Supp.

1494, 1506-1507 (S.D.N.Y. 1984), aff'd 785 F.2d 1102 (2d Cir. 1986),

petition for cert. filed, 55 U.S.L.W. 3017 (July 15, 1986) (No. 86-2). In

1984, the percentage declined somewhat as a result of court orders

enjoining its application in the Ninth Circuit, New York, Illinois, and

other states.

5 (T]he specific listing of physical and mental functions and the

statement that an impairment is not severe unless these func-

tions are si st limited is inconsistent with the stated

position of the Social Security Administration that the reference

to “basic work activities” (now called “basic work-related func-

tions”) was not intended to change, but merely clarify, the pre-

vious regulatory terms “a slight neurosis, slight impairment of

sight or hearing, or other slight abnormalties.” her, the

current definition is also inconsistent with the definition in the

preamble which states that an impairment is not severe when it

does not in any way limit a person's physical or mental ability to

do those things needed to work.” In addition, the Council hee

noted that there has been a vast increase in denials based on an

6

noted that there had been a vast increase in denials based

on non-severity even though the 1978 regulations

asserted that they did not change the standard for deny-

ing disability benefits.

When the 1980 regulations were published in final form,

the Secretary admitted that he had effected a substantive

change back in 1978:

Although this evaluation approach to impairments

that are not severe has been in the regulations for

some time, we expanded it in 1978...

We anticipated that greater program efficiency would

be obtained by this provision by limiting the number

of cases in which it would be necessary to follow the

vocational evaluation sequence... .

45 Fed.Reg. 55574 (August 20, 1980) (emphasis added).

The Secretary also noted that he was studying the

feasibility of revising the rules, conceding that it might be

as efficient to screen claims based on ability to return to

prior work. /bid.

5. The Secretary implemented the 1980 regulations

through two Social Security rulings (SSR’s). instructing

adjudicators on the proper construction of the severity

regulation: Social Security Ruling 82-55, Medical Impair-

ments That Are Not Severe (effective August 20, 1980

ae

impairment allegedly being “not severe,” contrary to the state-

ment in the preamble to the present regulations that this was not

expected to occur. We recommend deletion of the word “signifi-

cantly.”

Memorandum from Appeals Council to Office of Policy and Pro-

cedure, on “Recodification of Regulations on Determining Disability

and Blindness,” August 8, 1979. Reproduced in Joint Appendix

lodged with this Court in Bowen v. Dixon, No. 86-2, p. 667 (emphasis

in original).

7

(Cum.Ed. 1982), see Appendix attached hereto, 1a; and

Social Security Ruling 82-56, The Sequential Evaluation

Process (effective August 20, 1980 (Cum.Ed. 1982)) see

Appendix, attached hereto, 6a. These rulings were bind-

ing on all adjudicative components of SSA. 20 C.F.R.

§ 422.408.

These rulings made clear that the severity regulation

represented an additional eligibility requirement rather

than a continuation of the slightness screening standard

introduced in 1960. SSR 82-55 provided 20 examples of

impairments which were considered irrebuttably non-

severe, thus shedding any pretense that an assessment

would be made of the effect of an impairment on the

claimant’s ability to engage in substantial gainful activity.

The ruling included such impairments as documented

osteoarthritis, colostomies, diabetes and hypertension.

Furthermore, the ruling mandated that adjudicators

ignore the combined effects of two or three or more non-

severe medical impairments suffered by the same individ-

ual. SSR 82-56 specified that the claimant could no longer

make a prima facie showing of disability by proving he did

not have the “residual functional capacity” (the actual

capacity remaining despite the impairment, 20 C.F\R.

§ 404.1567) to perform his former work: “[A]n impairment

will not be considered to be severe even though it may

prevent the individual from doing work that the individual

has done in the past.”

6. In 1983 the Secretary undertook a study “to reex-

amine the ‘not severe’ impairment concept .. .” Final

6 SSR 82-55 was “obsoleted” without replacement. SSR 85-III-II

(April, 1985). SSR 82-56 was replaced in 1986 by SSR 86-8. Only SSR

82-55 and SSR 82-56 were effective at the time respondent Yuckert’s

case was adjudicated.

8

Report of Workgroup—DECISION, reproduced in Joint

Appendix to Bowen v. Dixon, supra, at 610. This study

surveys the history of the severity step, notes its inherent

subjectivity, and observes the widespread difficulty in

understanding or applying the step. Jd. at 620. The study

draws two conclusions: (1) despite statements made

regarding the purpose of the step, “its application” after

1975 “suggests a change of position,” ibid.; and (2) SSR

82-55 in particular “may contribute to overinclusive use”

of the step, id. at 621. The study states that the step “has

not been, and probably cannot be, clearly explained

either to SSA adjudicators or to the public.” Jd. at 622.

The workgroup developed options for remedying the

problems with the regulation. The workgroup found two

of the options to “have merit”: (1) a regulatory revision

returning to the prior slightness standard at step two for

screening out frivolous claims; and (2) “deletion or modi-

fication of step 2 with a redefined not severe impairment

concept incorporated into a revised regulation on RFC

[residual functional capacity].” Jd. at 625, 629.

The Secretary never acted on these recommendations.

In the absence of any regulatory action, courts proceeded

to rule on the argument presented below that the regula-

tion, as applied, conflicts with the Act. At the circuit

court level, these decisions, while differing on the appro-

priate remedy, have found the Secretary’s construction

and application of the severity regulation to contravene

the mandates of the Social Security Act.

7. In November, 1985, the Secretary published SSR

85-28, an interpretive ruling which, in his brief, he

appears to describe as embracing a de minimis standard

for applying the severity regulation. Brief for the Peti-

tioner (Pet. Br.) 13-14, 26, 48 n.29. The ruling itself,

however, insists that it is simply clarifying rather than

9

changing the non-severe impairment policy. Pet. App.

37a. In 1986, the Secretary published SSR 86-8, replacing

SSR 82-56 as the Secretary’s statement on the sequential

evaluation process. Neither SSR 85-28, nor SSR 86-8 was

applied in Respondent’s case.

8. On March 14, 1986, SSA issued an internal report

on a recent agency study of the severity regulation. The

study found that the state agency evaluators misapplied

the regulation in nearly 40% of the cases. Associate Com-

missioner for Disability, Social Security Administration,

“Report on the Not Severe Case Study,” (March 14, 1986),

lodged with this Court, in May, 1986. See Reply Brief for

the Petitioner at 4.

9. The proceedings in this case began when Janet J.

Yuckert filed her application for Social Security and Sup-

plemental Security Income disability benefits on October

30, 1980. Respondent. Yuckert is a former travel agent

whose principal impairment is “bilateral labyrinthine dys-

function,” a condition which causes dizziness and makes it

difficult to focus her eyes, to read or to stand. Petition for

a Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit, Appendix (Pet.App.), 3a. She “can

see only one word at a time.” /bid. “Her dizziness and

equilibrium problems limit her ability to walk or drive:

she walks cautiously, staying close to walls or counters,

....” Ibid. “Both of Yuckert’s treating physicians con-

cluded that she was disabled.” /bid.

Respondent Yuckert’s application was initially denied

at step four of the sequential evaluation (finding that she

retained the residual function capacity to do her past

work), rather than at step two, the severity step. Joint

Appendix (J.A.) 19-21. She was denied again on recon-

sideration. Jd. at 23-26. She appealed, and, after a hear-

10

ing, the Administrative Law Judge affirmed the denial of

benefits, basing the decision on the severity regulation.

Pet. App. 28a. The Appeals Council denied her request for

review by a letter dated June 25, 1982, Pet. App. 22a, and,

on August 18, 1982, Respondent Yuckert filed a timely

appeal in the Western District of Washington alleging that

the Administrative Law Judge's decision failed to give

proper weight to the opinion of the treating physician and

was not based on substantial evidence. Respondent

Yuckert did not challenge the validity of the “non-severe”

regulation in the district court. On October 25, 1984, the

district court adopted the magistrate’s recommendation

and affirmed the Secretary’s decision. Pet.App. 14a and

20a.

10. Respondent Yuckert appealed to the Ninth Cir-

cuit Court of Appeals on December 20, 1984 and shortly

thereafter moved for remand pursuant to an order enjoin-

ing use of the severity step issued earlier that year in a

circuit-wide class challenge to the severity regulation.

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

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

1985).7 This motion was denied.

Respondent Yuckert then moved to stay proceedings

pending a ruling in the Ninth Circuit in Smith v. Heckler.

The Secretary did not oppose the motion for stay and even

“suggest([ed] that . . . argument in [this] case be stayed.”

"Smith v. Heckler was filed as a class challenge to the severity

regulation in December, 1983. On June 6, 1984, a circuit-wide class

was certified and the use of the severity step was preliminarily

enjoined. On November 27, 1984, following complaints that the Sec-

retary was delaying implementation of the preliminary injunction,

the court issued a more detailed order elaborating procedures for

reevaluating pending administrative claims and remand of claims

pending before the courts.

ll

Appellee’s Response to Appellant’s Motion to Stay Pro-

ceedings. However, the stay motion was also denied and

the court proceeded to consider Respondent Yuckert’s

appeal. At this point Respondent challenged the validity

of the severity regulation.

On October 24, 1985, the court of appeals reversed and

remanded to the district court. Yuckert v. Heckler, 774

F.2d 1365 (9th Cir. 1985), (9th Cir. 1985), Pet. App. la. The

Ninth Circuit’s analysis of the severity regulation was

informed by the facts of the individual claim before it. The

Ninth Circuit reviewed the evidence of Respondent's con-

ditions and noted that an expert witness had testified that

“Yuckert was incapable of returning to her past work and

that she probably could not perform any other job until

her condition improved.” Pet. at 3a. The court observed

that under Social Security Ruling 82-56—the Secretary's

own binding instruction to SSA personnel—adjudicators

were required to ignore such evidence of Respondent's

inability to return to her prior work in determining

whether she had a severe impairment. Pet. 10a, n.8.

The court concluded that by ignoring such evidence the

severity step violates the “long established” statutory

allocation of the burden of proof in disability determina-

tions and “does not permit the individualized assessment

of disability required by the Act.Ӥ Pet.App. 8a-9a.

8 The court relied on Johnson v. Heckler, 769 F.2d 1202, 1210-13

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

filed, 54 U.S.L.W. 3600 (Mar. 11, 1986) (No. 85-1442); Baeder v.

Heckler, 768 F.2d 547, 551-53 (3d Cir. 1985); Dixon v. Heckler, 589

F.Supp. 1494, 1502-06 (S.D.N.Y. 1984), 785 F.2d 1102 (2d Cir. 1986),

petition for cert. filed, 55 U.S.L.W. 3017 (July 15, 1986); Delgado v.

Heckler, 772 F.2d 570, 574 (9th Cir. 1983); and referred to Heckler v.

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

individual determin ions.”

12

Accordingly, the court held that the severity regulation

violates the Social Security Act.

Subsequent to oral argument in the court of appeals but

prior to issuance of the decision, the Secretary submitted

a draft of a new ruling purporting to clarify or alter the

“non-severe” step. In revised form, this draft ruling was

eventually to become SSR 85-28, discussed infra at 29.

The court of appeals “express[ed] no view as to the valid-

ity” of this draft ruling because it was unpublished and

because it attempted to interpret a regulation which the

court had invalidated. Pet. App. 9a n.6.

The court remanded Respondent Yuckert’s case to the

district court “with instructions that the Secretary

reevaluate Yuckert’s claim. . . .” Pet. App. 1la-12a. How-

ever, remand from the district court to the Secretary has

been deferred at the request of the Secretary, and over

Respondent's objections, pending the present proceed-

ings.

SUMMARY OF ARGUMENT

The Social Security Act defines disability in terms of

both medical and vocational considerations. Under this

statutory definition, a claimant is eligible for disability

benefits if he is unable to engage in any substantial gainful

activity by reason of any medically determinable physical

or mental impairment which can be expected to result in

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

twelve months. 42 U.S.C. § 423(d)(1)(A). The statute fur-

ther provides that to determine whether an impairment is

so severe that it prevents the claimant from engaging in

substantial gainful activity, the impairment must be eval-

uated in terms of its effect on the claimant’s ability to

return to his past work or to perform other work the

claimant is qualified for in light of his age, education and

13

work experience. 42 U.S.C. § 423(d)(2)(A). This statutory

definition recognizes that the same impairment affects

people with different vocational characteristics dif-

ferently. Thus the older, the less educated, and the less

training a claimant has, the more likely it is that his

impairments will prevent him from engaging in substan-

tial gainful activity, and will therefore render him eligible

for disability benefits.

Three requirements derive from the statutory defini-

tion of disability. First, the Act’s directive that disabling

inability to work be determined by reference to a claim-

ant’s ability to do his “previous work” and then to his

ability to do other work has been interpreted by all the

courts of appeals to allocate the burden of proof in accor-

dance with this mandated two-stage inquiry. While the

claimant bears the ultimate burden of proving disability,

he meets his prima facie burden by showing that his

medical impairments prevent him from performing his

past work. The Secretary then has the burden of going

forward to show the claimant is able to perform other

work.

Second, the Act requires an individualized determina-

tion of disability: “[A]n individual ... shall be deter-

mined to be under a disability only if his physical or

mental 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...

[other work].” 42 U.S.C. § 423(d)(2)(A) (emphasis added).

Third, a claimant who proves himself unable to do his

previous work or other work because of his impairments is

disabled under the Act; he therefore cannot be denied

benefits on medical grounds alone if consideration of these

relevant vocational factors might result in a finding of

disability.

14

For a threshold screening standard to comply with the

statute, it must be a de minimis test. Under ade minimis

test, an individual can be denied benefits on medical evi-

dence alone only if his impairment is so slight that it could

not interfere with the individual’s ability to work, irre-

spective of age, education and work experience. A de

minimis standard thus incorporates an implicit consider-

ation of the relevant vocational factors by asking whether

any set of vocational factors, when considered with a

claimant’s impairment(s), might prevent him from work-

ing. Similarly, a de minimis test respects the Act’s

requirement of individualized determinations by ensuring

that an individualized evaluation of vocational factors will

not be precluded at later stages of evaluation if they might

affect the ultimate determination of disability. Finally, a

de minimis standard respects the allocation of the bur-

dens of proof by ensuring that any claimant who proves an

inability to do past work due to his reduced functional

ability (and thus meets his prima facie burden of proof)

will not be denied benefits on medical evidence alone.

The severity regulation formally adopted by tl. Secre-

tary in 1978 does not describe a de minimis threshold

standard; it authorizes a stricter one. It defines a non-

severe, and thus disqualifying, impairment as one that

does not “significantly limit” a claimant's ability to per-

form “basic work activities.” It expressly prohibits any

consideration of age, education and work experience at

all—even the type of implicit vocational consideration that

the de minimis test contemplates. It substitutes a judg-

ment regarding the ability to do basic work activities for

an evaluation of the claimant’s actval residual capacity to

do his prior work. It thus creates an overbroad presump-

tion of non-disability based on an unspecified degree of

functional loss in reference to the performance of an

abstract concept of work.

15

To counter the conflict between the statutory definition

of disability and the severity regulation, the Secretary

claims he has sought to apply the regulation consistently

with a de minimis standard. Virtually every court of

appeals has concluded that the Secretary has applied the

severity regulation to impose upon claimants a stricter

than de minimis step two test. The Secretary’s contrary

claim is belied by the Social Security rulings which he

used to implement the regulation, the internal studies of

the implementation of the regulation, as well as the statis-

tics documenting the dramatic rise in the percentage of

claims denied at step two.

The Secretary also argues that the regulation should be

upheld no matter how strict a standard it actually imposes

and regardless of whether it is inconsistent with the bur-

den of proof law. In addition, he misrepresents what the

court of appeals held, and undertakes a question-begging

examination of the legislative history.

To defend a stricter than de minimis test, the Secre-

tary disfigures the Act by bifurcating the statutory defini-

tion. His argument cannot survive even a cursory glance

at the statute. The first words in § 423(d)(2)(A) are, “(flor

purposes of paragraph (1)(A)—.. . .” The two subsec-

tions form a unitary statutory definition: section (d)(2)(A)

structures the inquiry in determining whether a claimant

is “unable to engage in any substantial gainful activity”

within the meaning of section (d)(1)(A).

As the court of appeals correctly noted, the Act

requires the Secretary to consider “both medical and

vocational factors” in making the ultimate determination

of disability. Contrary to the Secretary’s assertions,

nothing in the court’s decision bars implementation of a de

minimis threshold standard. The court invalidated the

16

Secretary's severity regulation because it resulted in deni-

als of benefits to claimants based on medical factors alone,

even where consideration of vocational factors could have

dictated a different result.

The Secretary's opposition to the invalidation of the

regulation by the court below is really a challenge to the

remedy which the court chose to apply. The circuits are

divided over the remedial question of whether to judi-

cially impose a narrow construction on the severity reg-

ulation in an attempt to create a de minimis test or to

invalidate the regulation, thereby leaving the Secretary

free to promulgate new regulations consistent with the

statutory mandate. However, Respondent Yuckert’s

interest in the present case is in having her claim adjudi-

cated under a de minimis standard. Either remedy, inval-

idation of the regulation or imposition of a narrowing

construction, is intended to ensure that claims are sub-

jected to no more than a de minimis standard. Respond-

ent Yuckert would be entitled to the remand afforded her

by the court of appeals even if this Court were to decide

the remedy chosen by the court below was improper. It is

Respondent's position, however, that invalidation of the

regulation is not only a permissible remedy, but, in fact,

the most effective remedy in light of the Secretary’s stead-

fast refusal to construe the severity regulation in a de

minimis fashion despite the chorus of appellate decisions

directing him to do so.

ARGUMENT

The Secretary has mischaracterized the court of

appeals’ decision, the decisions of other circuits, and his

own record of implementing the regulation invalidated

below in order to characterize this appeal as concerning

the legitimacy of a de minimis regulation for screening

17

out meritless claims for disability benefits. In seeking

reversal of the Ninth Circuit’s judgment, the Secretary

asks this Court to ratify a regulation which the courts of

appeals have found to be in conflict with the mandates of

the Social Security Act.? Each of these courts has inter-

preted the requirements of the Act in the same way—as

authorizing a de minimis threshold severity step, but not

a stricter one that imposes higher burdens on claimants.

Each of these courts has ruled that a legitimate de mini-

mis step must comport with the rule that a claimant

meets his prima facie burden of proof by showing an

impairment rendering him unable to return to his past

work. Each of these courts has ruled that a de minimis

®The appellate courts are divided only with respect to the corre-

sponding remedial question. Five circuits, including the Ninth Cir-

cuit, have remedied the conflict between the regulation and the Social

Security Act by invalidating the regulation. Wilson v. Secretary of

Health and Human Services, 796 F.2d 36 (3rd Cir. 1986), and Baeder

v. Heckler, 768 F.2d 547 (3rd Cir. 1985); Johnson v. Heckler, 769 F.2d

1202 (7th Cir. 1985), reh’g. denied, 776 F.2d 166 (1985), petition for

cert. filed, 54 'J.S.L.W. 3600 (Mar. 11, 1986) (No. 85-1442); Brown v.

Heckler, 786 F..d 870 (8th Cir. 1986); Hansen v. Heckler, 783 F.2d 170

(10th Cir. 1986). See also Dixon v. Heckler, 785 F.2d 1102 (2d Cir.

1986), petition for cert. filed, 55 U.S.L.W. 3017 (July 15, 1986) (No.

86-2) (affirming preliminary injunction enjoining the regulation).

Four circuits have remedied the conflict between the severity step

policy and the Social Security Act by attempting impose a narrow

construction on the Secretary’s use of the res lai:on: Evans v.

Heckler, 734 F.2d 1012 (4th Cir. 1984); Stone v. He ier, 752 F.2d 1099

(5th Cir. 1985); and Estran v. Heckler, 745 F.2¢ .Av (5th Cir. 1984);

Farris v. Secretary of Health and Human Serv.ces, 773 F.2d 85 (6th

Cir. 1985); and Salmi v. Secretary of Health and Human Services,

774 F.2d 685 (6th Cir. 1985); McCruter v. Bowen, 791 F.2d 1544 (11th

Cir. 1986); and Brady v. Heckler, 724 F.2d 914 (11th Cir. 1984). See

also McDonald v. Heckler, 795 F.2d 1118 (1st Cir. 1986) (imposing a

narrowing interpretation on the Secretary's recent “clarification” of

the severity standard, SSR 85-28).

~

18

severity step only screens out groundless claims. Each of

these courts has concluded that the Secretary has not, at

any time relevant to this case, applied the severity regula-

tion as a de minimis standard.

Rather than address this authority, the Secretary

adopts the strategy of embracing the appellate rulings

which were decided adversely to him and creating a fic-

tional conflict between those decisions and that of the

court below. The Secretary consistently characterizes the

Ninth Circuit as having prohibited him from enforcing

any threshold severity te st (including a de minimis test)

under which benefits can “be denied on the basis of medi-

cal evidence alone,” 7.e., without specific consideration of

the claimant’s age, education or work experience. Pet. Br.

13, 21, 25. The problem for the Secretary in pursuing this

argument is that the court below did not disapprove a de

minimis threshold when it struck down the existing,

stricter severity test.

While maintaining that he has always implemented a de

minimis severity step, the Secretary also defends the

statutory legitimacy of a stricter standard. This argu-

ment not only conflicts with the Secretary's own descrip-

tion of his practices, but also finds no support in the

statute, its legislative history, or the accepted rules on

burden of proof in disability cases.

I. THE SEVERITY REGULATION AND THE STEP TWO

THRESHOLD SCREENING TEST THAT THE SECRE-

TARY APPLIED PURSUANT TO THAT REGULATION,

VIOLATE THE SOCIAL SECURITY ACT

A. TheStatutory Definition Of Disability Requires That A

Claimant’s Impairments Be Evaluated In Terms Of

Their Effect On His Actual Ability To Work.

1. The act defines disability and structures the

inquiry in disability determinations in 42 U.S.C.

19

§§ 423(d)(1)(A) and (d)(2)(A). To be found disabled, an

individual must prove an “inability to engage in any sub-

stantial gainful activity by reason of any medically deter-

minable physical or mental impairment . . . .” 42 U.S.C.

§ 423(d)(1)(A). The next provision structures the inquiry

governing the determination of whether a claimant does,

in fact, have such an “inability to engage” in work: the

severity of any medically determinable impairment is

measured by reference to its effect on the individual's

ability to perform his past work, or, in light of his age,

education and work exerience, other work.

For purposes of paragraph (1)(A)—

. an individual . . . shall be determined to be

under a disability only if his physical or mental

impairment or impairments are of such severity that

he is not only unable to do his previous work but

cannot, considering his age, education, and work

experience, engage in any other kind of substantial

gainful work which exists in the national economy

42 U.S.C. § 423(d)(2)(A) (emphasis added).

While the Act requires a claimant to have a medically

determinable impairment, the determination of whether

a claimant has an “inability” to work “by reason of” that

impairment depends upon -whether the impairment

imposes limitations on the claimant such that he is “not

only unable to do his previous work but cannot, consider-

ing his age, education, and work experience engage in

[other work].” 42 U.S.C. §§ 423(d)(1)(A), (2)(A). The Act,

in short, requires that the determination of a disability

claim involve not only an abstract medical assessment,

but a medical-vocational one as well: that is, it demands an

assessment of how a claimant’s medical impairments

affect his actval ability to work. This Court has accord-

20

ingly recognized that the Act, “defines ‘disability’ in

terms of the effect a physical or mental impairment has on

a person's ability to function in the workplace.” Heckler v.

Campbell, 461 U.S. 458, 460 (983); see also, Bowen v. City

of New York, 106 S.Ct. 2022, 2025 (1986). 1° It is this latter

medical-vocational inquiry which implements the Act's

recognition that loss of function in the legs is a more

severe impairment for an uneducated 60-year-old con-

struction worker than for a 40-year-old attorney.

Three interrelated directives derive from-the statutory

mandate that a claimant’s “disability” be evaluated in

terms of how his impairments affect his actual ability to

work. First, the Act’s directive that disabling inability to

work be determined by reference to a claimant’s ability to

do his “previous work” and then other work has been

inteypreted by all the courts of appeals to allocate the

burden of proof in a two-stage inquiry. !! In this two-stage

'’ The Secretary argues that the statutory definition of disability

permits the Secretary to deny benefits to a claimant, even when 2

vocational assessment—a determination of the effect his impair-

ments have on his actual ability to work—might show him to be

disabled. Pet.Br. at 13-14, 25-6. But Congress knew how to define

disabling severity without reference to vocational factors (i.e., age,

education, and work experience) when it wished to do so. Compare,

42 U.S.C. §423(d)(2)(B) (defining “disability” for widow(er)s and

surviving divorced spouses in terms giving Secretary authority to

deny benefits on medical factors alone) with 42 U.S.C. § 423(d)(2)(A)

(defining disability with reference to vocational as well as medical

factors). See, 20 C.F.R. § 404.1577 (1985); Hansen v. Heckler, 783

F.2d 170, 172 (10th Cir. 1986).

‘! Meneses v. Secretary of Health, Education and Welfare, 442

F.2d 803 (D.C.Cir. 1971); Hernandez v. Weinberger, 493 F.2d 1120,

1123 (1st Cir. 1974); Bastien v. Califano, 572 F.2d 908, 912-13 (2d Cir.

1978); Choratch v. Finch, 438 F.2d 342 (3d Cir. 1971); Smith v.

Califano, 592 F.2d 1235, 1236-37 (4th Cir. 1979); Lewis v. Weinberger,

OO a eh tee

21

inquiry, the claimant meets his prima facie burden of proof

by showing that his medical impairments prevent him

from performing his past work. Once that showing is

made the Secretary has the burden of going forward to

show the claimant is able to perform other work that

exists in the national economy. If the Secretary makes

such a showing, the burden shifts back to the claimant, to

rebut the Secretary's evidence and meet his ultimate bur-

den of proving disability.

Second, the Secretary cannot determine the effect of a

claimant’s medical impairments on his actual ability to

work, without scrutinizing the claimant himself. The Act

accordingly requires individualized determinations of dis-

ability: “[a]n individual . . . shall be determined to be

under a disability only if his physical or mental impair-

ments are of such severity that he is nut only unable to do

his previous work, but cannot, considering his age, edu-

cation, and work experience, engage in [other work].” 42

U.S.C. §423(d)(2)(A) (emphasis added). See H-ckler v.

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

contemplates that disability hearings will be individu-

alized determinations”).

Third, given that a claimant is disabled if he proves

himself unable to do (1) his “previous work” and (2) consid-

ering his “age, education and work experience” any other

work as well, a claimant cannot be denied benefits on

515 F.2d 584, 587 (5th Cir. 1975); O’Panner v. Secretary of Health,

Education and Welfare, 587 F.2d 321, 323 (6th Cir. 1978); Stark v.

Weinberger, 497 F.2d 1092, 1097-98 (7th Cir. 1974); Garrett v.

Richardson, 471 F.2d 598, 603-04 (8th Cir. 1972); Hall v. Secretary of

Health, Education and Welfare, 602 F.2d 1372, 1375 (9th Cir. 1979);

Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984); Francis v.

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

22

medical grounds alone if consideration of these relevant

vocational factors might result in a finding of disability.

2. The severity regulation sets forth a screening stan-

dard that all claimants must meet to have their claims for

benefits fully evaluated, i.e., evaluated by reference to

their ability to do their past work and (if they are unable to

do such work) other work, “considering their age, educa-

tion, and work experience.” 42 U.S.C. § 423(d)(2)(A).

There is nothing wrong with the idea of such a screening

test, but in order to conform with the statutory dictates

discussed above, any screening test imposed must be no

stricter than the “de minimis test” approved by all the

courts of appeals which have addressed this issue. See

supra, at 17. Under a de minimis test, an individual can

be denied benefits on medical evidence alone only if his

impairment is so slight that it could not interfere with his

ability to work, irrespective of age, education and work

experience.

A de minimis test respects the Act’s mandates regard-

ing the consideration of vocational factors, individualized

assessments, and the burdens of proof. A de minimis test

satisfies the Act’s requirement that impairment severity

be determined by reference to ability to do prior work

and, considering the claimant’s age, education and work

experience, other work because it does not “screen out”

(1.e., deny claims) when one or more of those factors

might affect the disability determination at a later step of

the sequential evaluation. A de minimis step thus incor-

porates an implicit consideration of the relevant voca-

tional ors, by asking whether any set of vocational

factors, when considered with claimant’s impairment,

might prevent him from working. Similarly, a de minimis

test respects the Act’s requirement of individualized

determinations: while it does not itself involve an individ-

23

ualized consideration of a claimant’s specific age, educa-

tion and work experience at step two, it ensures that an

individualized evaluation of vocational factors will not be

precluded at steps four and five if they might affect the

ultimate determination of disability. Finally a de minimis

test respects the Act’s allocation of the burdens of proof

because it ensures that any claimant who proves an

inability to do his past work (and thus meeets his prima

facie burden of proof) will not be denied benefits at step

two.

For the same reasons that a de minimis step two test

conforms with the Act, any test imposing a higher thres-

hold burden on claimants does not. Any test that denies a

claimant benefits at step two, when the claimant has

impairments that impose functional limitations severe

enough that he might be able to prove disability if his

vocational factors were individually considered at step

five of the sequential evaluation, violates the Act. Sim-

ilarly, a test that denies a claim at step two, when the

claimant has met or might meet his statutory prima facie

burden of proof, violates the Act. In sum, any threshold

severity test that imposes an eligibility standard which

precludes the consideration of evidence deemed relevant

by the Act, when th: evidence might affect the deter-

mination of disability, violates the Act.

3. The severity regulation does not describe a de min-

imis threshold standard; it authorizes a stricter one. The

severity regulation defines a non-severe, and thus dis-

qualifying, impairment as one that does not “significantly

limit” a claimant’s ability to perform “basic work

activities.” When the regulation was first promulgated,

the Appeals Council recognized that this definition would

deny benefits to eligible claimants. See supra, at 5.

Although “significantly limited” is not defined, the Secre-

24

tary lists examples of basic work activities, 20 C.F.R.

§ 404.1521(b), and calls them “the abilities and aptitudes

necessary to do most jobs.”!2 Jd., at §404.1521(a). The

regulation expressly prohibits any consideration of age,

education and work experience at all—even the type of

implicit consideration that the de minimis test con-

templates. As the Secretary emphasizes, a claimant is

denied benefits at step two on the basis of medical evi-

dence alone. Pet.Br. 16-17.

By its terms, the severity regulation substitutes a judg-

ment regarding the ability to do basic work activities for

an evaluation of the claimant's actual capacity to do his

prior work. But an inability to do “basic work activities”

cannot be consistently equated with an inability to do

one’s prior work—the statutory prima facie burden of

proof standard. The fact that a cla’_aant’s “abilities and

aptitudes necessary to do most jobs’ are not “significantly

limited” does not establish that he is still able to do his

past work or, considering his age, education and work

experience, other work. “Step two. . . permits the Secre-

tary to label a claimant as not disabled, even though his

impairments in fact prevent him from doing his past

work.” Johnson v. Heckler, 769 F.2d at 1202, 1211 (empha-

sis in original). Respondent Yuckert, for example, was

denied benefits at step two notwithstanding her presenta-

'2 The Secretary relies on this aspect of the severity regulation to

urge that it implicates “vocationally-related considerations.” Pet. Br.

22. But this assertion is contradicted by his insistence that “the

principle reflected in the regulation. . . . [is] that a person may be

denied disability benefits on the basis of medical evidence alone. . . .”

(See, e.g., Pet. Br. 16-17.) Moreover, describing basic work activities

as “vocational” does not turn them into the individual claimant's past

work, age, education and work experience, the vocational factors

identified in the Act.

25

tion of evidence of her inability to do her previous work:

that showing should have been sufficient to require a

determination of whether she actually was unable to do

her past work and if so, whether there was other work she

was competent to do in light of her vocational factors. !*

Under the Secretary’s sequential evaluation procedures,

the fourth step directly asks whether the claimant can

perform his past work, i.e., meet his prima facie burden.

To operate consistently with the Act’s allocation of the

burdens, steps one through three cannot impose a test

that exceeds the claimant’s prima facie burden.

In sum, the severity regulation that the Secretary

adopted, unlike a de minimis step two test, denied bene-

fits to claimants who might have been able to prove their

eligibility at a later stage of the sequential evaluation. It

created an overbroad presumption of non-disability based

on an unspecified degree of functional loss in reference to

the performance of an abstract concept of work. This

13 Petitioner quotes the ALJ’s and magistrate’s findings that

Respondent Yuckert’s struggle to learn new skills and to reenter the

work force are evidence that she is not disabled. Pet.Br. 5-6. This

focus on Respondent's rehabilitation efforts as evidence of ability to

engage in substantial gainful activity is misplaced. The Social Secur-

ity disability program not only encourages but often requires efforts

at vocational rehabilitation. 20 C.F.R. § 416.212. Congressional con-

cern for providing vocational rehabilitation for disabled workers was

expressed in the earliest discussions of the disability program. See

S.Rep.No. 1669, 81st Cong., 2d Sess. at 3, reprinted in [1950] U.S.

Code Cong. & Ad. News 3287, 3289. In some instances, disability

benefits will continue during a course of rehabilitation even though

the actual disability has ceased. Paskel v. Heckler, 768 F.2d 540, 546

(3d Cir. 1985), citing Leschniok v. Heckler, 713 F.2d 520 (9th Cir.

1983). Even attendance at a law school has been found not to preclude

a finding of disability. Detamore v. Schweiker, 569 F.Supp. 288, 290

(E.D.Pa. 1983).

26

precluded the type of practical, individualized assessment

the Act requires, see Campbell, 461 U.S. at 467, and

relieved the Secretary of his responsibility to meet his

burden of going forward, even when a claimant may have

met his prima facie burden of showing an inability to do his

past work.

4. The Secretary has consistently applied the severity

regulation to impose upon claimants a stricter than de

minimis step two test. His assertion that the severity

regulation was implemented as a de minimis standard to

screen out relatively minor impairments, Pet.Br. 10, 13,

14, 26, 27, has no support in the record here, or

elsewhere. The appellate courts have concluded that the

Secretary applied the severity regulation in a stricter

than de minimis way. See supra, at 17. There is no con-

trary appellate authority. The Secretary's claim is also

contradicted by his own Social Security rulings and inter-

nal studies of the implementation of the regulation, as well

as the dramatic rise in the percentage of claims denied on

medical evidence alone. See supra, at 4, 7-9.

The relevant rulings establishing the policies defining

step two are SSR 82-55 and SSR 82-56. See supra, at 7-8.

In SSR 82-55, the Secretary listed twenty impairments

illustrative of mental and physical impairments that were

to be considered per se non-severe under step two

regardless of the claimant’s actual ability to work. SSR

82-56 stated that the non-severe test permits denials of

benefits “even though . . . [the impairment] may prevent

the individual from doing work that the individual has

done in the past.” The Secretary denied benefits to claim-

ants with impairments on the SSR 82-56 list (or any other

impairments thought to be of comparable severity),

regardless of whether the impairments prevented claim-

ants from doing their past work. Jd. The Secretary's

27

severity regulation thus clearly violated the Act’s alloca-

tion of the burden of proof.

The Secretary’s assertion that he has construed the

severity regulation as a de minimis standard is also belied

by his own arguments in defense of the statutory legit-

imacy of a stricter than de minimis test, and by his

defense of a stricter than de minimis application of the

severity regulation itself. Thus, in Salmi v. Heckler, 774

F.2d 685, 690 (6th Cir. 1985), the Secretary argued that

the severity requirement “ . . [ilmposes more than a de

minimis threshold requirement . . .” and tnat, “ . . [a]t

least implicitly, Congress did not intend a standard as

lenient as Brady.” See also Williamson v. Secretary of

Health and Human Services, 796 F.2d 146, 150 (6.1 Cir.

1986) (rejecting the Secretary's argument that “when the

evaluation terminates at step two on a finding of no severe

impairment, it does not matter whether the claimant

satisfies the criteria in the Listing of Impairments [per se

disabling impairments].”). Consistently, the Secretary

has defended non-severe denials where the medical evi-

dence has unambiguously described impairments of

“serious proportions.” Mowery v. Heckler, 771 F.2d 966

(6th Cir. 1985); Martin v. Heckler, 748 F.2d 1027 (5th Cir.

1984); Glover v. Heckler, 588 F.Supp. 956 (S.D.N. Y. 1984);

Evans v. Heckler, 724 F.2d 1012 (4th Cir. 1984). !4

5. The Secretary's defense of a stricter than de mini-

mis test rests on his bifurcating the statutory definition.

14These cases cannot be considered aberrations, or misapplica-

tions by administrative law judges. The Secretary defended these

denials as proper applications of the severity regulation. Petitioner

has incorrectly cited the Evans case to support the proposition that

the Fourth Circuit “has sustained decisions of the Secretary denying

benefits based on a finding that the claimant's impairment was not

severe... .” Pet.Br. 18 n.9 (emphasis added).

28

Pet.Br. 13, 25-6. He describes § 423(d)(1)(A) as a provi-

sion that requires a claimant to make a threshold showing

of substantial medical severity. Only if such a showing is

made, he argues, does the Act allow the claimant to

proceed to make the showing § 423(d)(2)(A) requires. His

alternative presentation of this statutory formulation is

that § 423(d)(2)(A) does not impose any prerequisites to a

denial of benefits at the threshold step, such as considera-

tion of past work, age, education and work experience:

rather, it only poses additional burdens on the claimant.

Pet.Br. 25.

The Secretary's argument cannot survive even a quick

glimpse at the statute. The first words in § 423(d)(2)(A)

are, “[fjor purposes of Paragraph (1)(A)—. . . .” The two

subsections form a unitary statutory definition: section

(d)(2\(A) is to be implemented in determining whether or

not a claimant is “unable to engage in any substantial

gainful activity,” within the meaning of section (d)(1)(A).

By its terms, it does not set forth requirements that

become relevant only after a (d)(1)(A) determination is

made.

The Secretary seeks to disparage—in a footnote—the

well-established statutory allocation of the burden of

proof, vhich the court of appeals relied upon in finding the

severity regulation inconsistent with the Act. Pet.Br.

28-9 n.15; Pet.App. 10a-1la. His argument is, however,

contradicted not only by the decisions of twelve courts of

appeals, see supra, at 17, but also by the Secretary's own

previously expressed understanding when he promul-

gated the sequential evaluation regulations. 43 Fed. Reg.

05359 (1978) (“The burden of proof remains as established

in case law . . . .”).15 Further, Congress agrees that the

15 The reference was to the line of cases beginning with Meneses v.

Secretary of Health, Education and Welfare, 442 F.2d 803 (D.C.Cir.

1971). Meneses itself rejected the analysis the Secretary summarily

offers in his brief, based on the 1967 amendments: and every other

circuit has followed suit.

29

case law sets forth the formulation it intended. “(When a

claimant shows an inability to do his past work, then] [a]t

this stage, because of a judicial opinion and subsequent

administrative and legislative ratification, the burden of

proof switches to the Government . . . .” Staff of House

Comm. on Ways and Means, 99th Cong., 2d Sess., Back-

ground Material on Programs Within the Jurisdiction of

the Committee on Ways and Means, at 113 (Comm. Print

1986).

6. To counter the conflict between the statutory defi-

nition of disability and the severity regulation, the Secre-

tary characterizes SSR 85-28 as setting forth a lawful de

minimis standard, Pet.Br. 13-14, 26, 48, and implicitly

urges this Court to consider the validity of the regulation

in light of the ruling.!* The Court should decline to do so

for three reasons: (1) the ruling was issued in violation of

the Disability Benefits Reform Act of 1984; (2) an exam-

ination of the ruling would require this Court to examine

an ambiguous ruling which has not been interpreted by

the lower courts; and (3) an interpretive ruling cannot

effectively resolve the conflict between the severity reg-

ulation and the Act.

SSR 85-28 was issued in violation of the Secretary's

obligation under the Disability Benefits Reform Act. See

42 U.S.C. § 421(k)(1)(2). Under this provision, the Secre-

tary is required to establish by regulation subject to the

rule-making procedures established under the Admin-

istrative Procedures Act (APA), 5 U.S.C. $553 “ . . uni-

16 Should this Court find that SSR 85-28 is potentially relevant to

these proceedings, even though it did not exist at any time during the

adjudication of Respondent Yuckert’s claim, this case should then be

remanded. See Thorpe v. Housing Authority cf Durham, 386 U.S.

670, 673 and n.4 (1967) (vacating and remanding a challenge to public

housing eviction procedures in light of an intervening agency circular

which potentially affected the chailenged procedures).

30

form standards which shall be applied in determining

whether individuals are under disabilities defined in. . .

423(d) of this title.” The legislative history of the provision

indicates that “changes in policies that affect whether or

not people receive disability benefits. . . [should] be pub-

lished in the regulations allowing for public participation

in the process.” H.Rep. No. 618, 98th Cong., 2d Sess. 21,

reprinted in [1984] U.S. Code Cong. & Ad. News 3058.

See Bowen v. City of New York, 106 S.Ct. 2022 (1986)

(describing consequences of making policy changes

through secret instructions to staff). The Secretary uses

the ambiguity of SSR 85-28 to make inconsistent argu-

ments. If SSR 85-28 was intended to reform the severity

step in response to judicial criticism, SSR 85-28, Pet. App.

40a, then it must be published pursuant to the Admin-

istrative Procedures Act.!7 On the other hand, if SSR

85-28 is merely a clarification of existing policy, Pet. Br. 10:

Pet. App. 37a, it cannot be viewed as remedial.

This Court should decline to examine the contents of

SSR 85-28 inasmuch as it contains factual issues that have

not been passed on by the lower courts. Hormel v. Helver-

ing, 312 ULS. 552, 556 (1941). The ruling contains no clear

substantive standard. !8 It also makes no attempt to rec-

‘7 The public comment and resulting administrative scrutiny that

the APA procedures afford might have cured some of the ambiguities

that the appellate courts have identified in SSR 85-28. See Hansen,

783 F.2d at 175.

‘® SSR 85-28 is sufficiently contradictory to support the conflicting

propositions that the ruling is only a clarification (implying that the

severity step needs no reform), Pet.Br. at 10, and also that it reflects

the orders of those courts which “have taken issue with the Secre-

tary's previously stated definition of “not severe impairment” (imply-

ing that the ruling reforms the severity step), Pet. App., 40a. See also

31

oncile the Secretary’s step two regulation with the well-

established burden of proof rules. See swpra, at 20. As a

result, it is impossible to determine how the ruling would

actually be applied. Only through discovery and an evi-

dentiary hearing or on a record in a case in which the

Secretary's ruling has been applied, could these questions

be resolved.

7. Contrary to the Secretary's assértions, nothing in

the court of appeals’ decision bars implementation of a de

minimis threshold standard. The Seeretary’s contrasting

reading of the ruling is erroneous.

Pet.Br., 10.

On the one hand, the introduction and closing language of the

ruling suggest the Secretary intends to adopt a de minimis standard

and includes encouraging language on the limited applicability of the

severity step. The ruling even misquotes a statement made in Baeder

v. Heckler, 768 F.2d at 553 where the court found that the “severity

regulation does more than allow the Secretary to deny benefits

summarily to those applicants with impairments of a minimal nature

which would never prevent a person from working.” (The Secretary's

use of Baeder as a clarification of the severity policy is less than

candid. SSR 85-28 suggests that Baeder stands for the proposition

that the regulation “is to do no more than allow the Secretary to deny

benefits summarily. . . .” SSR 85-28, Pet.App. 40a. The reliance on

Baeder is“ . . entirely out of context,” Wilson v. Heckler, 622 F.Supp

649, 654 (D.N.J. 1985), affd., 796 F.2d 36 (3d Cir. 1986).

The actual standard set out in the heart of the ruling, however, does

not screen out only those claimants whose impairments could “never”

affect their ability to work. Instead, it restates the old approac:: of

establishing an overbroad presumption that screens out all impair-

ments which would have a “minimal” impact on the ability to do “most

jobs.” SSR 85-28, Pet.App. 41a. This same approach led to the

development of lists of per se non-severe impairments (see supru, at

7-8), and is evidence of the “Secretary's intent to pay mere lip service

to the de minimis standard.” Hansen v. Heckler, 783 F.2d at 176 (10th

Cir. 1986), citing Stone, 752 F.2d at 1193, 1106 (5th Cir 1985).

es ee ee em es eet

32

The Secretary reads the court of appeals ruling to

“require the decision maker to consider the vocational

factors of age, education and work experience” at step two

of the sequential evaluation process and to prohibit him

from employing any threshold “severity step” at all.

Pet.Br. 13, 22, 25. Neither understanding is correct.

As the court of appeals correctly noted, the Act

requires the Secretary to consider “both medical and

vocational factors” in disability determinations. Pet. App.

9a. It invalidated the Secretary’s severity regulation

because it authorized denials of benefits to claimants

based on medical evidence alone, even where considera-

tion of vocatonal factors could have dictated a different

result. /bid.

B. The Legislative History Of The Social Security Act

And Its Amendments Demonstrates That Congress

Endorsed Nothing More Than A De Minimis Severity

Step.

1. Contrary to the Secretary's contentions, the legis-

lative history of the Act shows that Congress intended

that disability determinations be based on a consideration

of medical and vocational factors and that any congres-

sional support for a threshold medical test was premised

on the assumption that the test would be de minimis and

would not screen out claimants who would otherwise be

found disabled if vocational characteristics were consid-

ered.

2. The 1954 definition of disability required that

impairments be evaluated in terms of their effect on the

claimants ability to engage in substantial gainful activity.

See supra, at 2. Furthermore, as the Secretary acknowl-

edges, his own contemporaneous regulations implement-

ing this statutory definition required an inquiry into the

individual's education, training and work experience.”

————————w

33

Pet.Br. 38, n.22 (quoting 22 Fed.Reg. 4362 (June 20,

1957)). Similarly, subsequent revisions to the regulations,

prior to adoption of the severity regulation, only autho-

rized a de minimis threshold test to screen out claimants

with slight impairments. Thus, in now arguing that the

1954 statute authorized a threshold medical test that

would deny benefits to persons who would otherwise be

found disabled, the Secretary faces the heavy burden of

showing that his contemporaneous interpretations mis-

perceived congressional intent. He does not meet that

burden. See Salmi v. Secretary of Health and Human

Services, 774 F.2d at 690 (Secretary's litigation position on

the meaning of the 1954 conference report conflicts with

his own previous interpretations).

The Secretary places substantial reliance on language

from the 1954 congressional reports, stating that a claim-

ant must be “totally” disabled. Pet. Br. 30, 31. He sug-

gests that by excluding persons who were “partially

disabled” Congress meant to preclude consideration of

vocational factors in determining disability. There is no

indication that Congress, or SSA, understood the term

“total disability” to preclude consideration of vocational

factors. On the contrary, the agency’s directives imple-

menting the first federal-state disability program, the

Aid to the Totally and Permanently Disabled (ATPD),

clarify the agency’s interpretation of the terms.!9 The

19 House Report No. 1189, 84th Cong., Ist Sess. (1955), discusses

congressional reliance on the agency's implemetation of the ATPD

program in enacting the first program for the payment of disability

benefits, based on the 1954 definition of disability. “We have now had

4\% years of experience with the special category of aid to the perma-

nently and totally disabled. . . . The adoption, in 1950, of the assist-

ance program to provide for the income maintenance needs of the

disabled clearly expressed the intention of the Congress that the

34

—

Social Security Administration’s Bureau of Public Assist-

ance offered the following definitions to states to guide

disability determinations:

In general, “permanently and totally disabled”

means that the individual has some permanent phys-

ical or mental impairment, disease or loss that sub-

stantially precludes him from engaging in useful

occupations within his competence, such as holding a

job or homemaking. . .

K * *

The term “permanently” refers to a physiological,

anatomical or emotional impairment verifiable by

medical findings . . . “permanence” does not rule out

the possibility of vocational rehabilitation or even

recovery from the impairment.

* ok *

—_—>— —

“Totally” involves considerations in addition to those

verified through the medical findings, such as age,

training, skills and work experience, and the vee.

bie functioning of the individual in his particular sit-

uation in light of his impairment... . In many cases

no decision as to total disability can be made without

such social data as will describe the individual’s edu-

cation and work history, the activities required of him

in his home or in his job, living and working condi-

tions, interests, native capacities and the extent to

which he has adjusted to the loss he has sustained.

Social Security Administration State Letter No. 174

§ 3420 (April 16, 1952).

Furthermore, sections of the legislative history upon

which the Secretary relies are quoted out of context. The

disabled should not be allowed to go without the necessities of life. It

also indicated the judgment of the Congress that it was admin-

istratively feasible to determine who is disabled. . .” Id. at 4.

0 a oe ae en ow ee eee ee

35

Secretary quotes the Senate Finance Committee Report,

Pet. Br. 31, 32, which acknowledges that “[s]tandards for

evaluating the severity of disabling conditions will be

worked out in consultation with the state agencies.” But

petitioner omits the subsequent (which is the final) sen-

tence, which clearly reflects the congressional intention

that the severity of impairments will be evaluated in

terms of a claimant's ability to perform in actual work

settings:

(the standards] will reflect the requirement that the

individual be disabled not only for his usual work but

also for any type of substantial gainful activity.

S.Rep. No. 1987, 83rd Cong., 2d Sess., 21 (1954).

See also Baeder v. Heckler, 768 F.2d at 551, (“Both the

statute and the legislative history speak in terms of medi-

cal and vocational factors and emphasize the importance

of the relation between the two,” citing inter alia Senate

Report No. 1987, swpra).?°

20 Petitioner also relies on the Disability Freeze State Manual, an

administrative document issued in 1955 to instruct the states in

making disability determinations under the 1954 Act. Pet.Br. 34,

n.20. To the extent that this manual has any bearing on congressional

intent, it supports the court of appeals’ conclusion that the statute

requires a realistic evaluation of ability to work in light of medical and

vocational considerations. The manual describes the importance of

considering “age, education, training, experience, and other individ-

ual factors .. .” in any case where * realistic evaluation cannot be

made on the basis of the medical fac._rs plus cessation of work. See

§ 324B. The manual instructs that, “[iJn evaluating the effect of an

impairment, it should be considered that the impairment may be

more limiting for an older than for a younger man,” noting that the

aging process “makes itself felt with respect to healing, prognosis,

physiological degeneration, psychological adaptability and, in con-

sequence, on vocational capacity.” § 325B. The section concludes that

“the impact of the aging process upon the specific individual will have

36

3. The Secretary also relies on post-enactment hear-

ings which were held in 1959 to review the disability

program. Again, these hearings show that Congress was

assured that disability determinations would be made ona

realistic basis in light of medical and vocational considera-

tions. In these hearings, Robert Ball, then Deputy Direc-

tor of the Bureau of Old Age and Survivor's Insurance,

assured Congress that the agency would not deny bene-

fits to a person with a medically determinable impairment

based on the individual’s not meeting listed medical condi-

tions. Mr. Ball stated:

[W]e will make the presumption that if his disability

is that severe [as is stated in the guides] that the fact

he is not working is because of or by reason of that

medically determinable physical or mental impair-

ment. The presumption does not work the other way

around, though. We will make the presumption that

he is disabled for working if he meets the level of

severity in the guides and there are no facts to the

contrary but we may pay him even though his dis-

ability does not reach this level of severity.

Administration of Social Security Disability Insurance

Program, Hearings Before the Subcomm. on the Admin-

istration of the Social Security Laws of the House Comm.

on Ways and Means, 86th Cong., Ist Sess., at 28-29 (1959)

(emphasis added).

Mr. Ball’s exchange with Rep. Harrison revealed the

identical interpretation of the statutory definition which

to be considered in connection with the particular impairment

claimed to prevent substantial gainful activity.” /bid. The manual also

recognizes that “education and training are factors in determining the

employment capacity of an applicant.” § 326. The manual’s listing of

per se disabling conditions does not override its clear requirement

that a realistic evaluation be made of a claimant's inability to work.

3

is explicit in the Medical- Vocational guidelines today, 7.e.,

that the statutory definition requires a realistic evaluation

of inability to engage in substantial gainful activity, which

necessitates a consideration of a person’s age, education

and experience:

Mr. Harrison. A woodchopper with a third grade

education might get so he can’t chop wood. He is a lot

worse off then Mr. Herlong would be if he got so he

couldn’t chop wood. Isn’t that right?

Mr. Ball. That is right.

Id. at 69.

Thus the administrative interpretation of the statutory

standard brought to Congress’ attention reveals an

emphasis on realistic evaluations of a claimant’s capacity

to work in light of medical and vocational considerations.

The agency’s early interpretation of the statute included a

de minimis screening standard. Congress had no reason

to regard it as more, in light of the testimony given by the

agency's director, as well as its chief medical officer,?! and

the agency’s regulations which required consideration of

21 The testimony of Dr. William Roemmich, Chief Medical Officer

to the Division of Disability Operations, Pet.Br. 37, n.21, also sup-

ports a de minimis screening standard. Dr. Roemmich interprets the

severity concept inherent in the basic statutory definiton:

“Under the law, severity must be established in terms of the

applicant’s remaining capacity to work. Once remaining capacit

to engage in physical or mental activity has been determined,

such capacity must be equated with the physical or mental

activity demands of the jobs which the applicant is equipped to

do by virtue of personal and vocational aptitudes.”

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., at 341 (1959).

38

vocational factors unless the only impairment was slight.

25 Fed. Reg. 8100 (Aug. 24, 1960).

4. Petitioner offers two inconsistent interpretations

of the 1967 amendments and their legislative history.

Recognizing that the 1967 amendments did not prompt

the Secretary to revise his regulations, petitioner argues

that Congress ratified his pre-existing regulations.

Pet.Br. 39. He proceeds, however, to rely on the legis-

lative history of the 1967 amendments to show that Con-

gress intended to impose more than the de minimis

threshold test set forth in the Secretary's pre-existing

regulations. Pet. Br. 40.22 Read in context, the legislative

history of the 1967 amendments shows that Congress was

concerned with sorting out which factors should be con-

2 The Secretary bases his reading of the 1967 amendments on a

limited excerpt from the legislative history that simply states that an

impairment must be severe, without stating whether severity must

be analyzed by viewing medical and vocational considerations in

combination. One court observed, “the passage relied upon by the

Secretary is somewhat ambiguous; it can be read simply as an expla-

nation of the overall circumstances under which a finding of disability

or non-disability will be made, rather than as a fixed sequence of

screening steps under which a “severity” test is somehow a condition

precedent to any consideration of the claimant's ability to engage in

his prior work or of the other vocational factors.” Dixon v. Heckler.

589 F.Supp. at 1505. The Stone court also rejected the Secretary's

analysis of the 1967 amendments; the Secretary there carried his

unfounded argument to its logical conclusion, namely, that the Secre-

tary was not required to find a claimant disabled, even if the claimant

proved his impairment prevented him from doing his prior work or in

light of his age, education and experience, any other work. Stone v.

Heckler, 752 F.2d at 1105. See also Baeder v. Heckler, 768 F.2d at 551.

Congress simply did not write the statute in the way the Secretary

would ask this Court to read it.

39

sidered in disability determinations.2* While rejecting

some considerations—such as the inability to find a job

due to cyclical economic factors—Congress expressly

incorporated into the statutory definition of disability the

four vocational considerations that had been part of the

disability determination process since 1954: age, educa-

tion, work experience, and ability to return to prior work.

In doing so, Congress ratified the established case law on

the burden of proof in determining disability. Nowhere

did Congress show any intent to abandon the requirement

that medically determinable impairments be evaluated in

light of age, education, work experience and ability to

return to past work. See Stone v. Heckler, 752 F.2d at

1105; Dixon v. Heckler, 589 F.Supp. at 1504-05.

Congressional intent to retain a medical-vocational

analysis for disabled workers is further reflected in con-

temporaneous amendments regarding eligibility for dis-

abled widows. Although Congress provided that disabled

widows must meet a prescribed test of medical severity,

Congress specifically declined to amend the basic defini-

tion of disability for workers. See supra, at 3, 20, n.10.

23 Congress was concerned with judicial interpretations of the

Social Security Act which looked to a very narrow geographic area in

determining whether an individual could perform substantial gainful

activity or which considered whether a vacancy was available for the

claimant. See, e.g., Tigner v. Gardner, 356 F.2d 647 (5th Cir. 1966);

Wimmer v. Celebrezze, 355 F.2d 289 (4th Cir. 1966); Reagie v.

Gardner, 261 F.Supp. 184 (D.Mont. 1966). The 1967 amendments

specifically addressed this case law by providing that the evaluation of

substantial gainful activity should be made without regard to

whether “such work exists in the immediate area in which [the

claimant] lives, or whether a specific job vacancy exists for him, or

whether he would be hired if he applied for work.” 42 U.S.C.

§ 423(d)(2)(A).

40

5. Finally, the Secretary argues that the Disability

Benefits Reform Act of 1984 “effectively ratified” the

severity regulation. Pet.Br. 44. Once again, the Secre-

tary’s argument begs the question of what kind of thresh-

old test Congress approved. The legislative history of the

1984 Act conclusively shows that Congress was concerned

with remedying the Secretary’s improper refusal to con-

sider the combined effect of multiple impairments, not

with ratifying the severity regulation.24 Furthermore,

the legislative history sanctions nothing more than a de

minimis test for screening out groundless claims.

Indeed, every circuit court, including the court below,

which has considered the Secretary's arguments regard-

ing the 1984 Act has rejected the Secretary’s suggestion

that the Act approved more than a de minimis threshold

test. See e.g., Yuckert v. Heckler, Pet.App. 9a-10a;

Johnson v. Heckler, 769 F.2d at 1213-1214: Hansen v.

Heckler, 783 F.2d at 174; McDonald v. Heckler, 795 F 2d at

1126-1127.

Section 4(a)(1) of the 1984 Amendments, Pub.L.

98-460, 98 Stat. 1794, remedied the Secretary's prior

refusal to consider the combined effects of impairments.

Under this amendment:

In determining whether an individual's physica! or

mental impairment or impairments are of a sufficient

medical severity that such impairment or impair-

ments could be the basis of eligibility under this

section, the Secretary shall consider the combined

*4This Court has recently recognized that “(t]he Reform Act is

remedial legislation, enacted principally to be of assistance to large

numbers of persons whose disability benefits have been terminated.”

Bowen v. City of New York, 106 S.Ct. 2022-2033, n.14. See also

Johnson v. Heckler, 769 F.2d at 1212 (rejecting the Secretary's con-

struction of the 1984 legislative history).

41

effect of all of the individual’s impairments without

regard to whether any such impairment, if consid-

ered separately, would be of such severity. If the

Secretary does find a medically severe combination of

impairments, the combined impact of the impair-

ments shall be considered throughout the disability

determination process.

This amendment made no change in the 1954 definition of

disability other than to require the Secretary to consider

the combined effect of all of an individual’s impairments on

his ability to work.

The Conference Report on the 1984 amendments to the

Social Security Act explained the “present law” on multi-

ple impairments:

There is no statutory provision concerning the con-

sideration of the combined effects of a number of

different impairments. The definition of disability

requires a finding of a medically determinable impair-

ment of sufficient severity to prevent the person

= — only his previous work but also any other

work that exists in the national economy,

pron ering his age, education and work experience.

By regulation, the combined effects of unrelated

impairments are considered only if all are severe (and

expected to last 12 months).

Joint Explanatory Statement of the Committee of Con-

ference, H.Rep. No. 98-1039, 98th Cong., 2d Sess.,

reprinted in [1984] U.S. Code Cong. & Ad. News 3087

(emphasis added).

The Conference Report described the purpose of the

multiple impairment provision which was enacted into

law as follows:

The conferees believe that this policy lof not consider-

ing the combined effect of multiple “non-severe”

impairments] may preclude realistic assessment of

42

those cases involving individuals who have several

impairments which in combination may be dis?ling.

The conference agreement provides, therefore, that

in determining whether an individual's impairment

or impairments are so severe as to prevent him from

engaging in substantial gainful activity, considera-

tion must be given to the combined effect of all the

individual’s impairments without regard to whether

any single impairment considered separately would

limit the individual's ability.

Id. at 3088 (emphasis added).

The Conference Committee's explanation of the pur-

pose of the multiple impairment provision is consistent

with the plain language of the provision itself. The Com-

mittee’s use of the phrase “so severe as to prevent him

from engaging in substantial gainful activity” in this para-

graph follows the basic statutory definition of disability,

which defines the eligibility standard as an inability to

engage in substantial gainful activity by reason of any

medically determinable impairment.

Furthermore, the Conference Committee’s statement

on the sequential evaluation process requires that the

Secretary not apply a severity standard that exceeds a de

minimis test.

[A] determination that an individual is not disabled

may be based on a judgment that an individual has no

impairment, or that the medical severity of his

impairment or combination of impairments is slight

enough to warrant a presumption, even without a

full evaluation of vocational factors, that the individ-

ual’s ability to perform SGA is not seriously affected.

The current ‘sequential evaluation process’ allows

such a determination and the conferees do not intend

to either eliminate or impair the use of that process.

The conferees note that the Secretary has stated that

it is her plan to reevaluate the current criteria for

43

non-severe impairments and expect that the Secre-

tary will report to the Committee on the results of

this evaluation.

Id. at 3088 (emphasis added).

In adopting this language, the Conference Committee

rejected the Senate Report’s statement that the severity

regulation could be applied to deny claims “on a strictly

medical basis, and without regard to vocational fac-

tors.”*5 In contrast, the screening standard articulated

by the Conference Committee states that a finding of no

impairment, or a slight impairment will not warrant a full

evaluation of vocational factors. The phrase “without a full

evaluation of vocational factors” suggests that the stan-

dard for evaluating slight impairments will be guided by

an implicit, or limited vocational analysis. Thus, Congress

would permit a de minimis regulation such as that pro-

mulgated in 1957 and publicly endorsed by the Secretary

in 1978.

It is the congressionally sanctioned de minimis stan-

dard which the courts have imposed on the Secretary to

restrain his illegal construction and implementation of the

severity regulation. (See supra, at 17.) That standard,

however, was not applied during the adjudication of

Respondent's case.

*5 Petitioner also relies on the partisan, post-conference statement

of Senator Russell Long in order to demonstrate that Congress had a

different understanding of the severity regulation. Pet.Br. 44. Sen-

ator Long’s comments, howver, reiterated the views of the Senate

Finance Committee which were rejected in conference. Therefore,

they are not a reliable guide to congressional intent. Chrysler Corp v.

Brown, 441 U.S. 181, 211 (1979).

44

II. INVALIDATION OF THE SEVERITY REGULATION

IS AN APPROPRIATE REMEDY TO RESOLVE THE

CONFLICT BETWEEN THE SOCIAL SECURITY

ACT AND THE ILLEGAL SCREENING STANDARD

AUTHORIZED BY THE SEVERITY REGULATION

The Secretary's opposition to the court of appeals’ inval-

idation of the severity regulation relies on decisions which

the Secretary claims upheld the severity regulation “[as a]

valid administrative implementation of the statutory

standard of disability.” Pet.Br. 17-18. Reliance on these

cases is wholly misplaced. These cases actually condemn

the Secretary's application of the severity regulation as

imposing a stricter threshold standard than the Act

authorizes. See supra, at 17. Rather than invalidate the

regulation, however, these courts attempted to bring the

regulation into conformity with the Act by insisting on a

narrowing (de minimis) construction of the regulation. In

one case, the court required the Secretary to make

explicit reference to the court’s interpretation of the reg-

ulation. See Stone v. Heckler, 752 F.2d at 1106.

The only relevant distinction between the cases on

which Secretary relies and those which invalidated the

severity regulation is their choice of solutions to the prob-

lem of “how best to remedy the Secretary's apparent

continuing intent to apply the step two severity regulation

in a manner that conflicts with the Act and the controlling

case law.” Hansen v. Heciier, 783 F.2d at 176; see also

Brown v. Heckler, 786 F.2d at 871-3.26 To affirm the deci-

26 If this Court accepted review on the assumption that the ques-

tion the Secretary presented implicated a conflict among the courts of

appeals over the interpretation of the Act, that assumption was

erroneous. Under similar circumstances, this Court has dismissed

the writ of certiorari as improvidently granted. See Smith v. Butler,

366 U.S. 161 (1961); Layne & Bowler Corp. v. Western Well Workers.

261 U.S. 387, 392-393 (1923).

45

sion of the court below, this Court need only find that the

remedy that the court of appeals chose was within its

authority, 7.e., a reasonable remedy under all the circum-

stances. See Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1, 15 (1971). In fact, the purpose of

both remedies is the same in terms of the intended relief

for plaintiffs. Under either remedy, Ms. Yuckert is

entitled to a remand for reevaluation of her claim without

reference to a stricter than de minimis screening stan-

dard.

While imposing a narrowing construction would have

been within the court’s authority, invalidation was more

likely to be an effective remedy in light of the Secretary's

steadfast refusal to construe the severity regulation in a

de minimis fashion despite the chorus of appellate deci-

sions directing him to do so.27 See Hansen v. Heckler, 783

27 In Dixon v. Heckler 589 F.Supp. 1494, 1509 (S.D.N.Y.) aff'd, 785

F.2d 1102 (2d Cir. 1986), petition for cert. filed, 55 U.S.L.W. 3017

(July 15, 1986) (No. 86-2), the court prelimnarily enjoined the sever-

ity regulation, rejecting the alternative narrowing construction

approach as “likely to result only in continued confusion and endless

appeals of decisions in which the Secretary's findings of non-severity

are reversed for failure to follow the court’s construction of the

regulation.” That court’s doubts respecting the efficiency of the nar-

rowing construction remedy were later borne out in the Fifth Circuit.

See Stone, 752 F.2d at 1105 (noting the Secretary's continued refusal

to follow the de minimis standard, notwithstanding three previous

Fifth Circuit decisions adopting it).

Even though invalidation might reasonably be thought to be the

more effective remedy, it is less restrictive in that it leaves the

Secretary free not only to enforce a de minimis step two, but to omit

step two entirely. It is the latter option that the Secretary has in fact

chosen in many jurisdictions in which the severity regulaton has been

invalidated. Furthermore, the Secretary himself has suggested that a

prior work threshold screening step may be an equally or more

efficient one than the second (non-severe) step at issue in this litiga-

tion. See Chico v. Schweiker, 710 F.2d 947, 952-953, n.6 (2d Cir. 1983).

46

F.2d at 176 (referring to Secretary's “history of disregard-

ing those controlling court rulings with which she dis-

agrees.”) See avso Brown v. Heckler, 786 F.2d at 872.

Because the court of appeals properly ruled that the

severity regulation exceeded the de minimis test permit-

ted by the Act, and therefore “exceed[ed the] Secretary's

statutory authority,” it acted well within its authority to

invalidate the regulation.?8 Its decision should therefore

be affirmed.

Should the Court decide that invalidation of the regula-

tion was an impermissible means of ensuring that claim-

ants would not be subjected to a stricter than de minimis

threshold standard, then this Court should be guided by

the appellate courts that have adopted the alternative

remedy of imposing a narrowing construction on the reg-

ulation. Inasmuch as both remedies were designed to

28 Heckler v. Campbell, 461 U.S. 458, 467 (1983). While some

deference to the construction of a statute by the administrative

agency charged with its implementation is appropriate, there is a

limit to this deference where there are compelling indications that the

agency's interpretation is wrong. See, e.g., Securities Industry Asso-

ciation v. Board of Governors, 104 S.Ct. 2979 (1984); Securities and

Exchange Commission v. Sloan, 436 U.S. 103 (1978); Espinoza v.

Farrah Manufacturing Company, 414 U.S. 86 (1973); Federal Mar-

itime Commission v. Seatrain Lines, 411 U.S. 726 41973). As

recently restated, “Judicial deference to an agency’s interpretation of

a statute only sets the framework for judicial analysis; it does not

replace it,” «. ‘ “a reviewing court must reject administrative con-

structions of [a] statute, whether reached by adjudication or by

rulemaking, that.are inconsistent with the statutory mandate or that

frustrate the policy that Congress sought to implement.” Securities

Industry Associuiion v. Board of Governors, 104 S.Ct., at 2983,

quoting prior cases. Moreover, the Secretary's inconsistent formula-

tion and interpretation is not deserving of the deference normally

accorded agency interpretation. See General Electric Company v.

Gilbert, 429 U.S. 125, 140-142 (1976).

47

prevent the Secretary from applying a stricter than de

minimis screening standard, Respondent Yuckert would

be entitled to relief similar to that granted by the court of

appeals even if this Court were to instruct the court below

to adopt the alternative remedy.”

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be affirmed.

Respectfully submitted,

CAROLE F. GROSSMAN

JAMES A. DOUGLAS

PETER KOMLOS-HROBSKY

GILL DEFORD

EILEEN P. SWEENEY

Attorneys for Respondent

October, 1986

29 If this Court does decide that imposing a narrowing construction

on the regulation is the appropriate remedy, it should still not reach

the question of whether SSR 85-28 or any similar ruling constitutes

such a narrowing construction. See supra, at 30. The impact of SSR

85-28 on the severity step cannot be determined without further

factual development. SSR 85-28 can be viewed as articulating a de

minimis standard only if it is read to respect the burden of proof law

(a “finding of not severe is inappropriate if the claimant is unable to do

his. . . past work”) and applied so as to deny benefits summarily his

only to claimants whose impairments are so minimal that they could

never prevent anyone from working. McDonald v. Heckler, supra,

795 F.2d at 1125.