Amicus Curiae Brief — Bowen v. Yuckert

.« Supreme Court, U.S,

(t) ‘* FILED

No. 85-1409

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 1986

OTIS R. BOWEN, Secretary of Health and

Human Services,

Petitioner,

-against-

JANET J. YUCKERT,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

BRIEF AMICI CURIAE OF THE CITIES OF

NEW YORK, PHILADELPHIA, LOS ANGELES,

BOSTON, AND CHICAGO IN SUPPORT OF

RESPONDENT

FREDERICK A.O. SCHWARZ, JR.

Corporation Counsel of the

City of New York

100 Church Street

New York, New York 10007

(212) 566-3801

Counsel of Record

LEONARD KOERNER,

MICHAEL D. YOUNG,

ALEXANDRA 5S. BOWIE,

of Counsel.

See next page for additional counsel

Handsel B. Minyard

City Solicitor

City of Philadelphia

1500 Municipal Services Building

Philadelphia, PA 19102

(215) 686-5230

James K. Hahn

City Attorney

City of Los Angeles

Thomas C. Bonaventura

Managing Assistant City Attorney

Julie Downey

Jessica Heinz

Deputy City Attorneys

200 North Main Street

Los Angeles, CA 90012

(213) 485-4288

Judson H. Miner

Acting Corporation Counsel

City of Chicago

Peggy A. Davis

Assistant Corporation Counsel

Joel D. Stein

Chief Assistant Corporation Counsel

Affirmative Litigation Division

180 North LaSalle Street, Suite 704

Chicago, Illinois 60601

(312) 744-9020

Joseph I. Mulligan, Jr.

Corporation Counsel

City of Boston

Albert W. Wallis

First Assistant Corporation Counsel

Law Department

City Hall, Room 615

1 City Hall Square

Boston, MA 02201

(617) 725-4020

TABLE OF CONTENTS

Table of Authorities

Interest of the Amici Curiae

SUMMARY OF ARGUMENT

ARGUMENT

I. THE SECRETARY'S

SEVERITY REGULATION

VIOLATES THE ACT BY

CUTTING OFF THE

SEQUENTIAL EVALUATION

PROCESS PREMATURELY,

AND BY IGNORING LONG-

STANDING BURDEN OF

PROOF RULES

Il. THE SEVERITY

REGULATION MUST BE

CONSTRUED AS A DE

MINIMIS REQUIREMENT

IF IT IS TO BE UPHELD

AS CONSISTENT WITH

THE SOCIAL

SECURITY ACT.

CONCLUSION

10

10

20

29

——

TABLE OF AUTHORITIES

CASES

Baeder v. Heckler,

768 F.2d 547 (3d Cir.

1985) 4, 17, 18, 25, 26

Bluvband v. Heckler,

730 F.2d 886 (2d Cir. 1984) 15

Bowen v. City of New York,

54 U.S.L.W. 4536 (U.S. June 2, 1986) 6

Brady v. Heckler,

724 F.2d 914 (llth Cir. 1984) 21, 23, 24

Channel v. Heckler,

747 F.2d 577 (10th Cir. 1984) 15

Chico v. Schweiker,

710 F.2d 947 (2d Cir. 1983) 22

Choratch v. Finch,

438 F.2d 342 (3d Cir. 1971) 14

Dixon v. Heckler,

589 F. Supp. 1494 (S.D.N.Y. 1984),

aff'd, 785 F.2d 1102 (2d Cir. 1985),

petition for cert. filed,

55 U.S.L.W. 3017 (U.S. July 15, 1986)

(No. 86-2) Be Ge Bee Bee B80 Bee Be

Evans v. Heckler,

734 F.2d 1012 (4th Cir. 1984) 24

Francis v. Heckler,

749 F.2d 1562 (lith Cir. 1985) 15

-ji-

Garrett v. Richardson,

471 F.2d 598 (8th Cir. 1972) 14

Hall v. Secretary,

602 F.2d 1372 (9th Cir. 1979) 15

Hernandez yv. Weinberger,

493 F.2d 1120 (lst Cir. 1974) 14

Johnson v. Heckler,

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

petition for rehearing en banc denied,

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

filed, 54 U.S.L.W. 3600 (U.S. March 11,

1986) (No. 85-1442) 2, 27, 28

Lewis v. Weinberger,

515 F.2d 584 (5th Cir. 1975) 14

McDonald v. Secretary,

795 F.2d 1118 (list Cir. 1986) 16, 26

Meneses v. Secretary,

442 F.2d 803 (D.C. Cir. 1971) 15

Mowery v. Heckler,

771 F.2d 966 (6th Cir. 1985) 19

Munoz v. Secretary,

788 F.2d 822 (ist Cir. 1986) 19, 26

O'Banner v. Secretary,

587 F.2d 321 (6th Cir. 1978) 14

Rivera v. Schweiker,

717 F.2d 719 (2d Cir. 1983) 14

Salmi v. Secretary,

774 F.2d 685 (6th Cir. 1985) 22, 24

-jii-

R

Smith v. Califano, 14

592 F.2d 1235 (4th Cir. 1979)

Smith v. Heckler,

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

appeal pending, No. 85-2178. 2, 16, 27, 19

Stone v. Heckler,

752 F.2d 1099 (Sth Cir. 1985) 24

Whitney v. Schweiker, :

695 F.2d 784 (7th Cir. 1982) 14

Williamson v. Secretary,

796 F.2d 146 (6th Cir. 1986) 19

Wilson v. Secretary,

796 F.2d 36 (3d Cir. 1986) 25

STATUTES, REGULATIONS, AND RULES

Title II of the Social Security Act,

42 U.S.C. $$ 401 et seq. (1982 &

Supp. III 1985) 2, 3

Title XVI of the Social Security Act,

$$ 1381 et seq. (1982 & Supp. III

1985) 2, §

42 U.S.C. §$ 423(d)(1)(A) (1982) 10

42 U.S.C. § 423(d)(2)(A)(Supp. ITI 1985)10

20 C.F.R. 404.1520(c) 2, 11

20 C.F.R. 404.920(c) 2, 11

Social Security Ruling

85-28 16, 24, «+, 26, 28, 29

-iv-

MISCELLANEOUS

S. Rep. No. 1669, 8lst Cong., 2d Sess.,

(1950) reprinted in 1950 U.S. Code,

Cong. & Admin. News 3287 5

S. Rep. No. 2133, 84th Cong., 2d Sess.

(1956) reprinted in 1956 U.S. Code,

Cong. & Admin. News 3877 6

S. Rep. No. 1856, 86th Cong., 2d Sess.

(1960), reprinted in 1960 U.S. Code,

Cong. & Admin. News 3608 6

H. Rep. No. 92-231, 92nd Cong., 2d Sess.

(1972), reprinted in 1972 U.S. Code,

Cong. & Admin. News 4989 6

33 Fed. Reg. 11749 (1968) 21

43 Fed. Reg. 55359

(November 28, 1978) 15, 22

45 Fed. Reg. 55574 (1980) 17, 22

The New York Law Journal,

March 18, 1986 4

-V=

No. 85-1409

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM 1986

OTIS R. BOWEN, Secretary of Health and

Human Services,

Petitioner,

-against-

JANET J. YUCKERT,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR Thé

NINTH CIRCUIT

BRIEF AMICI CURIAE OF THE CITIES OF

NEW YORK, PHILADELPHIA, LOS ANGELES,

BOSTON, AND CHICAGO IN SUPPORT OF

RESPONDENT

I. Interest of the Amici Curiae

The Cities of New York, Philadelphia,

Los Angeles, Boston, and Chicago ("the

cities") submit this brief in support of

respondent's position that step two of the

—— neni’ hd

Secretary's sequential evaluation process, 20

C.F.R. $8 404.1520(c) and 416.920(c) ("the

severity regulation"), violates Titles II and

XVI of the Social Security Act, 42 U.S.C. §§

401 et seq.; 1381 et seq. (1982 & Supp. III

1985) ("the Act") by allowing the Secretary

to deny claims for disability benefits without

considering the effect of an individual's

impairments on his or her ability to work.

The cities seek to protect the interests

of their disabled citizens in the fair

resolution of claims for disability benefits.

Many of their citizens have been injured by

the unlawful policy respondent challenges.

See Johnson v. ‘leckler, 769 F.2d 1202 (7th

Cir. 1985), petition for rehearing en banc

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

cert. filed, 54 U.S.L.W. 3600 (U.S. March

11, 1986) (No. 85-1442); Smith v. Heckler,

595 F.Supp. 1173 (E.D. Cal. 1984); appeal

pending, No. 85-2178; Dixon v. Heckler, 589

o@-«

F.Supp. 1494 (S.D.N.Y. 1984), aff'd, 785

F.2d 1102 (2d Cir. 1985), petition for cert.

filed, 55 U.S.L.W. 3017 (U.S. July 15, 1986)

(No. 86-2): The cities also seek to protect

their fiscal interests by ensuring that all

their citizens who are entitled to federal

Social Security disability benefits obtain them

instead of continuing to receive state and

locally funded public assistance. One effect

of the challenged policy has been to shift

the costs of caring for needy disabled

individuals from the federal government to

the amici cities.

The costs to the cities of paying

benefits to thousands of individuals whose

claims have been denied under’ the

Secretary's illegal policy is substantial. !

l By 1982, under the Secretary's severity

policy, 40.3% of claims were denied on the

(Footnote Continued)

-3-

When the costs of caring for these

individuals is borne by the federal

government, as they should be under the

law, the savings to the cities are quite

large. For example, approximately 2000

people in New York State, approximately 60%

of whom live in New York City, have

received about $10 million in benefits under

the injunction issued in Dixon. The New

York Law Journal, March 18, 1986, at 1.

The City of New York thus saves

approximately $3,048,000 annually. Other

cities save similar emounts.*

(Footnote Continued)

ground that the claimant did not have a

"severe" impairment. Baeder_v. Heckler,

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

Heckler, 589 F.Supp. at 1503-04.

2 whe cities of Philadelphia and Chicago

provide food, emergency shelters and medical

care for their homeless population, as well as

providing social services and emergency food

to needy residents. Such programs cost

(Footnote Continued )

- 4-

(©

This shift of the financial burden of

caring for needy disabled individuals from

the federal government to the major cities is

directly contrary to the intent of Congress,

in enacting Titles II and XVI of the Social

Security Act. Congress, in fact, enacted

Title II and amended Title XVI of the Social

Security Act in order to shift the burden of

caring for the elderly and disabled from the

states and localities to the federal

government. .

(Footnote Continued)

Philadelphia $18 million in 1985, and Chicago

$6.7 million in 1984. The other amici cities

provide similar services and incur similar

costs. Since some of the recipients of public

assistance programs should be receiving

Social Security disability benefits,

overstrained municipal budgets are relieved

of part of their burden when the federal

government bears its proper share of caring

for needy disabled citizens.

3 See e.g., S. Rep. No. 1669, 8ist

Cong., 2d Sess. (1950), reprinted in 1950

U.S. Code, Cong. & Admin. News 3287,

(Footnote Continued )

- 5-

_—&@&@&@on- .

The amici cities have taken the lead in

fighting the Secretary's policies that cause

this shift. For example, last Term this

Court ruled, in a case brought by the City

of New York, which was joined by the City

of Chicago as amicus curiae, that the

Secretary had the duty and the capability to

prevent an illegal policy that resulted in the

denial of benefits to mentally disabled

claimants. The Court affirmed the lower

court's order directing the reopening of

claims which were denied or terminated on

the basis of the illegal policy. Bowen v-

City of New York, 54 U.S.L.W. 4536 (U.S.

June 2, 1986).

(Footnote Continued)

3287-88; S. Rep. No. 2133, 84th Cong., 2d

Sess. (1956), reprinted in 1956 U.S. Code,

Cong. & Admin. News 3877, 3879-80; S.

Rep. No. 1856, 86th Cong., 2d Sess.

(1960), reprinted in 1960 U.S. Code Cong. &

Admin. News 360%, 3622-23; H. Rep. Mo.

92-231, 92d Cong., 2d _ Sess. (1972),

reprinted in 1972 U.S. Code, Cong. &

Admin. News 4983, 4992.

- 6 -

SUMMARY OF ARGUMENT

The Secretary's severity regulation

violates the Act by denying a claimant the

opportunity to prove that his or her

impairment is the cause of his or her

inability to work. The sequential evaluation

process is cut short at step two for those

claimants whose impairment is presumed, on

medical grounds alone, to be insufficiently

severe to be a cause of the inability to

work. Those claimants do not get the

chance to establish the actual causal

relationship between the impairment and the

incapacity.

Moreover, the severity regulation

violates the burden of proof rules, which the

Secretary and the Court of Appeals in every

circuit has interpreted the Act to contain.

These rules provide that a claimant who has

shown that an impairment prevents him or

her from doing past work has made out a

prima facie case of disability. The burden

shifts to the Secretary to show that the

claimant remains capable of performing other

work. Under the severity regulation,

claimants who cannot show that their

impairments are "severe" are not allowed the

chance to establish a prima facie claim of

disability.

In the alternative, if the severity

regulation is to be upheld, it must be

narrowly construed as a de minimis screening

requirement. The substantial evidence

developed in the district courts in cases

challenging the severity regulation shows

that the Secretary did not apply the

regulation as a de minimis standard at the

time respondent's case was decided. Given

that evidence, respondent's case should be

remanded to the district court for a

- 8 -

determination whether the Secretary is

indeed now applying a de minimis standard.

Moreover, the relief granted in the district

courts to class members in the cases

challenging the policy who were harmed by

the illegal application of the severity

regulation must stand.

ARGUMENT

POINT I

THE SECRETARY'S SEVERITY

REGULATION VIOLATES THE ACT

BY CUTTING OFF THE

SEQUENTIAL EVALUATION

PROCESS PREMATURELY, AND BY

IGNORING LONG-STANDING

BURDEN OF PROOF RULES

The Act defines "disability" as the

"inability to engage in any substantial

gainful activity by reason of any medically

determinable physical or mental impairment

. " 42 U.S.C. § 423(d)(1)(A) (1982).

For purposes of that definition:

An __ individual . . - Shall i 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 .. .

42 U.S.C. $ 423(d)(2)(A) (Supp. III 1985).

In other words, the statute requires that the

Secretary must consider both the nature of

-10-

the claimant's impairment, and its effect on

his or her ability to work.

The severity regulation provides,

however, that the Secretary may find that

an individual is not disabled without

considering the actual relationship of the

impairment to his or her ability to work.

The regulation states:

You must have a severe

impairment. If you do not have

any impairment or combination of

impairments which significantly

limits your physical or mental

ability to do basic work activities ,

we will find that you do not have

a severe impairment and are,

therefore, not disabled. We will

not consider your age, education,

and work experience.

20 C.F.R. $§ 404.1520(c); 416.920(c)

(emphasis in original). The Secretary is to

make this finding on the basis of medical

grounds alone.

The Secretary's regulation violates the

Act because it prevents a claimant from

showing that his or her particular disability

° ii -

is the cause of the inability to work. The

regulation, instead of allowing the claimant

to establish the causal relationship, as

embodied and demonstrated in the facts of

his or her own case, requires a claimant to

establish, in the abstract and with no

relation to those facts, that an impairment is

so severe that it could be a substantial

cause or inability to work in general. * It

be In other words, the statute requires

the Secretary to take account of a claimant's

age, education, and work experience when

considering the severity of a claimant's

impairment, while the regulation allows the

Secretary to determine severity without

considering those factors.

The statute speaks of an

impairment (or impairments) which

is ‘of such _ severity that’ the

claimant cannot, ‘considering his

age, education and work

experience, ' perform any

substantial gainful work. Under

the severity regulation, by

contrast, the Secretary had found

that plaintiffs do not have severe

(Footnote Continued)

- 12 -

does not allow the claimant a chance to prove

that it actually has impaired his or her own

ability to work. If a claimant is denied

benefits because the impairment is not

"severe," the sequential evaluation process

ends before the claimant has had a chance to

establish this causal relationship.

Truncating the sequential evaluation

procedure on this basis violates the burden

of proof rules, which all the circuit courts

of appeals, and the Secretary, agree are

contained in the Act, by preventing

claimants who cannot show that their

impairments are "severe" from establishing a

(Footnote Continued)

impairments, and therefore are not

disabled, without considering

whether their impairments, in light

of their age, education and work

experience, permit them to perform

gainful work.

Dixon, 589 F.Supp. at 1502.

prima facie claim of disability. The twelve

circuit courts of appeals are unanimous in

holding that the claimant makes a prima facie

showing of disability when he or _ she

demonstrates an impairment that prevents

him or her from performing previous work.

Th: burden then shifts to the Secretary to

show that the claimant remains capable of

performing other work considering the

claimant's age, education, and work

experience. Hernandez v. Weinberger, 493

F.2d 1120, 1122-23 (lst Cir. 1974); Rivera

v. Schweiker, 717 F.2d 719, 722-23 (2d Cir.

1983); Choratch v. Finch, 438 F.2d 342, 343

(3d Cir. 1971); Smith v. Califano, 592 F.2d

1235, 1236 (4th Cir. 1979); Lewis v.

Weinberger, 515 F.2d 584, 587 (5th Cir.

1975); O'Banner v. Secretary, 587 F.2d 321,

322 (6th Cir. 1978); Whitney v. Schweiker,

695 F.2d 784, 786 (7th Cir. 1982); Garrett

v. Richardson, 471 F.2d 598, 603-04 (8th

- 14 -

Cir. 1972); Hall v. Secretary, 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

(llth Cir. 1985); Meneses v. Secretary, 442

F.2d 803, 806 (D.C. Cir 1971).° This

formulation of the burden of proof rules has

been adopted by the Secretary in his

regulations. 43 Fed. Reg. 95359

(November 28, 1978).

Under the severity regulation, however,

the Secretary does not allow a claimant the

chance to establish a prima facie case. The

Secretary does not consider proof that the

. The claimant's burden encompasses the

first four steps of the sequential evaluation

process. If the claimant gets that far, the

burden passes to the Secretary at step five.

See Bluvband v. Heckler, 730 F.2d 886, 891

(2d Cir. 1984). If the severity step is truly

a de minimis screening device, then it is

consistent with the burden of proof rules.

See infra at 21-24.

- 15 -

claimant cannot perform his or her prior

work if the claimant cannot first satisfy the

severity standard, Dixon, 589 F.Supp. at

1505-06, thereby cutting short the sequential

evaluation process. See Smith v. Heckler,

595 F.Supp. 1173, 1178 (E.D. Cal. 1984),

appeal pending, No. 85-2178.°

6 Petitoner has never, until this stage of

this litigation, challenged the burden of

proof rules. Indeed, as noted above,

petitioner has adopted them, to the point of

treating the severity regulation as consistent

with that rule, at least when the claimant's

past work had unique features, in their

latest "clarification" of the severity policy.

SSR 85-28, reprinted in Petition ("Pet.") at

37a, 43a. SSR 85-28 has been read as

adopting the burden of proof rules. See

McDonald v. Secretary, 795 F.2d 1118, 1126

n.9 (ist Cir. 1986). Nonetheless, in his

brief to this Court, petitoner asserts that

"[njothing in the Social Security Act

suggests that the disability determination

process must be rigidly confined to just two

such steps" and that the Act does not

"mandate that a claimant may establish a

‘prima facie' case by showing that he is

unable to do his past relevant work."

Petitioner's Brief at 29 n. 15. Petitioner's

(Footnote Continued)

- 16 -

The case histories of the plaintiffs in

the various cases challenging the Secretary's

severity policy demonstrate that the effect of

truncating the sequential evaluation is to

deny individuals full consideration of their

7

claims of disability. For example, in

Baeder v. Heckler, the Secretary found that

a 55-year-old man, suffering from arthritis,

diabetes, vertigo, headaches, and _ chest

pains with shortness of breath diagnosed as

(Footnote Continued)

attempt to overturn this settled body of law

should be rejected.

t In fact, the Secretary admitted as much

in 1980 in commenting on the revisions of the

regulations.

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....

Dixon v. Heckler, 589 F. Supp. at 1504,

quoting 45 Fed. Reg. 55574 (1980).

- 17 -

"significant pulmonary obstructive disease"

did not have a severe impairment. Because

of this finding, the Secretary did not allow

the claimant to demonstrate that his lack of

education, his experience of 27 years in the

same industrial plant, his attempts. to

continue working by switching to less

strenuous positions, or even his age,

contributed, with his impairment, to his

inability to work. See Baeder v. Heckler,

768 F.2d 547, 552 (3d Cir. 1985). Had the

severity regulation not been applied so as to

set an arbitrary "threshold" standard, the

Secretary would have considered the correct

causal relationship: Mr. Baeder's various

physical impairments, combined with his age

of 55 years, had forced him to quit working,

even though he had attempted to continue

working by taking less strenuous positions

within his company. He should have been

allowed to demonstrate this relationship. See

- 18 -

also Munoz v. Secretary, 788 F.2d 822 (lst

Cir. 1986); Mowery v. Heckler, 771 F.2d 966

(6th Cir. 1985).°

° The Secretary's policy can also lead to

absurd results. For example, the Secretary

recently argued that an Administrative Law

Judge's decision that an impairment was not

severe should be upheld even though the

Secretary conceded in his brief to the circuit

court that the claimant's impairment met the

listings. Williamson v. Secretary, 796 F.2d

146 (6th Cir. 1986). Because the impairment

was deemed "not severe", the sequential

evaluation process ended at step two, and

benefits were denied. The Secretary argued

that the fact that the impairment met the

listings was "irrelevant" when the sequential

evaluation process ended at step two,

because the listings are considered at step

three. 796 F.2d at 150-51. The court

rejected the Secretary's kafkaesque

reasoning.

- 19 «

i i a i LT peel inhe atieentetiie wan neni tie

POINT Il

THE SEVERITY REGULATION

MUST BE CONSTRUED AS A DE

MINIMIS REQUIREMENT IF IT IS

TO BE UPHELD AS CONSISTENT

WITH THE SOCIAL SECURITY

ACT.

If this Court upholds the _ sererity

regulation as consistent with the Act, it

must be construed as a de minimis standard.

Moreover, if the regulation is allowed to

stand, this Court should not limit any of the

retroactive relief granted in the cases

challenging the severity regulation around

the country. The plaintiffs in those cases

have shown over and over that the Secretary

has not been implementing the _ severity

regulation as a de minimis standard.

The regulatory history of the severity

regulation demonstrates that it was originally

intended as a de minimis standard. The

severity standard was promulgated in 1968,

- 2% -

and revised in 1978 and 1980. In the 1968

regulations, the Secretary stated:

Medical considerations alone can

justify a finding that the

individual is not under a disability

where the impairment is a slight

neurosis, slight impairment o

sight or hearing, or other slight

abnormality or a combination of

slight abnormalities.

33 Fed. Reg. 11749, 11750 (1968) (emphasis

added); see also Brady v. Heckler, 724 F.2d

914, 918 (llth Cir. 1984). Thus, as the

Secretary originally conceived it,: the

severity regulation screened out only

individuals with minor ailments.

In 1978, the Secretary amended the

regulation to state that an impairment which

did not significantly limit an individual's

ability to perform "basic work-related

functions" would not be considered severe.

The regulation further provided that a

claimant with such an impairment would be

denied benefits without consideration of his

° #1 -

or her age, education, or work experience.

Salmi v. Secretary, 774 F.2d 685, 691 (6th

Cir. 1985), quoting 43 Fed. Reg. 55349,

55371 (1978). In commenting on the new

regulations, the Secretary stated:

{T]here is no intention to alter the

levels of severity for a finding of

disabled or not disabled on the

basis of medical considerations

alone, or on the basis of medical

and vocational considerations.

Salmi, 774 F.2d at 691, quoting 43 Fed.

Reg. 55358 (1978).

In 1980, the current regulation was

promulgated. As at least one court has

found, the 1980 recodification "evinced no

change in this expression of the Secretary's

intent, 45 F.R. 55574." Chico vy.

Schwe’ cer, 710 F.20 947 (2d Cir. 1983); see

also Salmi, 774 F.2d at 691.

Furthermore, a 1980 statement of the

Appeals Council sets forth its’ policy

- 22 -

regarding findings of severity and concludes

that the 1980 regulation:

was not intended to change, but

was merely a clarification of the

previous regulatory terms ‘'slight

neurosis, slight impairment of

sight or hearing, or other slight

abnormality or a combination of

slight abnormalities ...." In other

words, an impairment can . be

considered as ‘not severe’ only if

it is a slight abnormality which has

such a minimal effect on the

individual that it would not be

expected to interfere with the

individual's ability to work,

irrespective of age, education, or

work experience.

Brady v. Heckler, 724 F.2d 914, 919-20

(llth Cir. 1984) quoting Appeals Council

Review of Sequential Evaluation Under

Expanded Vocational Regulations (1980).

Thus, under a narrow construction of

the regulation, an impairment can . be

considered not severe only if the impairment

is so slight that, regardless of a claimant's

age, education, and work experience, it

would not affect that particular claimant's

- 23 -

ability to work. See Salmi, 774 F.2d at

691-92; Brady, 724 F.2d at 920. The

statement of the Appeals Council, coupled

with the Secretary's various statements each

time the regulation was promulgated, have

persuaded those courts that have upheld the

severity regulation that "(t]hough the 1968,

1978, and 1980 regulations use vastly

different words to describe severe

impairment, the standard has not changed

throughout the years," and that the severity

regulation: should be narrowly construed.

Salmi, 774 F.2d at 691; Brady, 724 F.2d at

920; Evans v. Heckler, 734 F.2d 1012, 1014

(4th Cir. 1984); Stone v. Heckler, 752 F.2d

1099, 1101 (5th Cir. 1985).

Social Security Ruling 85-28 purports to

implement a de minimis standard. It recites

the history of the regulation, Pet. at

37a-40a, and it urges that "great care”

should be taken in applying "the not severe

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impairment concept." Pet. at 44a.° Whether

the Secretary is actually implementing a de

minimis standard under SSR 85-28 is,

however, a factual question to be decided in

the district courts.

There is no evidence that the Secretary

is implementing the SSR as a way of

screening out only those claims based on

minor impairments. SSR 85-28 was

promulgated only recently, in October, 1985.

There is some evidence that even the

Secretary does not believe that it

9 On the other hand, SSR 85-28 does not

clearly adopt the burden of proof rules, and

the Secretary questions those rules in his

brief to this Court. See supra at 13-16. In

fact, one court has held that, having once

held the regulation invalid in light of its

history and the statistics regarding its

application, the Secretary may not apply the

regulation and was not presented with an

opportunity to develop a de minimis

interpretation of the regulation as now

written. in SSR 85-28 by the decision in

Baeder, the previous case. Wilson v.

Secretary, 796 F.2d 36, 41-42 (3d Cir.

1986).

°°.

will make any difference to the evaluation of

the severity of claims. See, e.g., Munoz v.

Secretary, 788 F.2d 822, 823 (lst Cir.

1986), where the court. rejected’ the

Secretary's contention that SSR 85-28 was

not applied to the claimant's case but that if

the ALJ had applied the ruling "'the

administrative decision would have been the

same.'"

Substantial statistical evidence exists,

moreover, that shows that even if SSR 85-28

sets out a de minimis policy the Secretary

intends to follow, before the issuance of SSR

85-28 "the severity regulation ha[d] become,

in practice, more than a de minimis

screening device." McDonald v. Secretary,

795 F.2d 1118, 1124 (list Cir. 1986). The

number of claimants denied benefits at step

two rose sharply between 1978 and 1982.

See supra n.1 (increase from 8.4% to 40.3%

found in Baeder and Dixon); McDonald, 795

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ee

F.2d at 1124 (increase in step two denials to

Massachusetts claimants rose to 25 to 31.4%

in 1984 and 1985). The experience of

claimants in areas where the application of

the severity regulutions has been enjoined

are similarly telling. In Illinois, before the

Johnson injunction was issued, 34.3% of

claimants were found disabled. The ratio

rose to 52% after the injunction was entered.

Similarly, the percentage of claimants allowed

benefits on reconsideration rose from 14.8%

to 34.1% See Brief of Amici Curiae American

Diabetes Association, et al., at 18-19.

Finally, the experience of class members

whose claims were reevaluated under the

orders of the Dixon, Smith, and Johnson

courts show that the regulation was not

applied as a de minimis standard during the

relevant time periods. Over 40% of the

claimants reevaluated under the Dixon and

Smith orders, who had been denied benefits

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|

on the grounds that their impairments were

not severe, received benefits. Johnson class

members were found to be disabled on

reconsideration at a rate of about 31%. Id.

at 19.

The records in the district courts in

which the severity regulation was challenged

indicate two steps for this Court to take.

First, the Court should remand respondent's

claim to the district court for the application

of a de minimis standard. Second, the

Court should ensure that, no matter how it

views the current state of the severity

regulation, the relief accorded class members

shown in other challenges to the severity

regulation to have been injured by the

Secretary's use of the severity regulation

should not be disturbed. Moreover, those

district courts are the forums in which to

determine whether SSR 85-28 is in reality

implementing a de minimis standard.

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ee

CONCLUSION

For all of the foregoing reasons, the

decision of the Court of Appeals should be

affirmed. In the alternative, the severity

regulation should be narrowly construed and

the case remanded, with instructions to the

district court to apply a de minimis standard

and to consider whether SSR 85-28

implements a de minimis standard.

Dated: New York, New York

October 6, 1986

Respectfully submitted,

FREDERICK A. O. SCHWARZ, JR.

Corporation Counsel of the

City of New York, Amicus Curiae

Counsel of Record

LEONARD KOERNEFP,

MICHAEL D. YOUNG,

ALEXANDRA 5S. BOWIE,

of Counsel.

See next page for additional counsel

- 29 -

Handsel 5. Minyard |

City Solicitor

City of Philadelphia

1500 Municipal Services Building

Philadelphia, PA 19102

(215) 686-5230

James K. Hahn

City Attorney

City of Los Angeles

Thomas C. Bonaventura

Managing Assistant City Attorney

Julie Downey

Jessica Heinz

Deputy City Attorneys

200 North Main Street

Los Angeles, CA 90012

(213) 485-4288

Judson H. Miner

Acting Corporation Counsel

City of Chicago

Peggy A. Davis

Assistant Corporation Counsel

Joel D. Stein

Chief Assistant Corporation Counsel

Affirmative Litigation Division

180 North LaSalle Street, Suite 704

Chicago, Illinois 60601

(312) 744-9020

Joseph I. Mulligan, Jr.

Corporation Counsel

City of Boston

Albert W. Wallis

First Assistant Corporation Counsel

Law Department, City of Boston

City Hall, Room 615

1 City Hall Square

Boston, MA 02201

(617) 725-4020

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