# Amicus Curiae Brief — Bowen v. Yuckert

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0086%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 482 U.S. 137

## Text

pRILED

OCT 7 1986
»MOSEPH F. SPANIOL, JR.
IN THE se meares
Supreme Court of the United States

Ocroser Term, 1985

No. 85-1409

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 AMICUS CURIAE OF AMERICAN |
ASSOCIATION OF RETIRED PERSONS

ALFRED MILLER
Perer N. GREENWALD
MILLER, SINGER, « RAIVES, P.C.
Attorneys for Amicus Curiae
American Association of Retired Persons
555 Madison Avenue
New York, New York 10022
(212) 752-8830

Of Counsel
STEVEN ZALEZNICK
MICHAEL R. SCHUSTER

TABLE OF CONTENTS

Table of Authorities

Brief Amicus Curiae

Statement of Interest of Amicus Curiae
Ss ide eh nd Gescenes eb eceu'ss eee wes
Summary of the Argument

I. THE SOCIAL SECURITY ACT REQUIRES
THE SECRETARY TO CONSIDER AGE AS
A SIGNIFICANT FACTOR IN
DETERMINING DISABILITY CLAIMS,
AND UNDER THE ACT AN OLDER
CLAIMANT MAY BE DISABLED BY
REASON OF A MEDICAL IMPAIRMENT
THAT WOULD NOT DISABLE A
YOUNGER PERSON

A. The Social Security Act

B. Age Under the Regulations and Rulings ..

1. Slightness Test
2. Sequential Evaluation
3. The Grids

. THE SEVERITY STEP REGULATIONS
UNLAWFULLY DENIED DISABILITY
BENEFITS TO MANY OLDER CLAIMANTS
WHO, UPON A FULL EVALUATION OF
THEIR CLAIMS, SHOULD HAVE BEEN
FOUND ELIGIBLE

A. The Severity Step Regulations, As
Applied, Were Not a Valid De Minimis
Step Under The Act ...................

B. The Severity Regulations, As Applied,
Had a Disproportionately Adverse Impact
On Older Claimants...................

ree ee

Page

1]

ill

TABLE OF AUTHORITIES

Page

Cases:
Andrades v. Secretary of Health and Human

Services, 790 F.2d 168 (Ist Cir. 1986)......... 16
Baeder v. Heckler, 768 F.2d 547 (3d Cir. 1985) .. 14,16
Blackburn v. Heckler, 615 F. Supp. 908 (N.D. III.

OS 16
Brady v. Heckler, 724 F.2d 914 (11th Cir. 1984) . 13

Brown v. Heckler, 786 F.2d 870 (8th Cir. 1986).. 13,16,17

Chico v. Schweiker, 710 F.2d 947 (2d Cir. 1983) . 16
Clemente v. Schweiker, 654 F. Supp. 271 (E.D.
ee cave wacaséevecseess 16,17
Davis V. Heckler, 748 F.2d 293 (5th Cir. 1984) .. 16
Delgado v. Heckler, 722 F.2d 570 (9th Cir. 1983) 16

Dixon v. Heckler, 589 F. Supp. 1494 (S.D.N.Y.
1984), aff'd, 785 F.2d 1102 (2d Cir. 1986), pet.
for cert. filed sub nom. Bowen v. Dixon, 55

U.S.L.W. 3017 (July 15, 1986) (No. 86-2) ..... 3,14,17,
19
Estran v. Heckler, 745 F.2d 340 (5th Cir. 1984).. 16,18

Evans v. Heckler, 734 F.2d 1012 (4th Cir. 1984) . 13,16,18

Farris v. Secretary of Health and Human
Services, 773 F.2d 85 (6th Cir. 1985) ......... 13

Flynn v. Heckler, 768 F.2d 1273 (11th Cir. 1985) 13,16,18

Hansen v. Heckler, 783 F.2d 170 (10th Cir. 1986) 13,16

iv

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

Hundrieser v. Heckler, 582 F. Supp. 1231 (N.D.

DN Sn a

Johnson v. Heckler, 769 F.2d 1202, rehearing en

banc denied, 776 F.2d 166 (7th Cir. 1985), pet.

for cert. pending sub nom., Bowen v. Johnson,
54 U.S.L.W. 3600 (March 11, 1986) (No.

REE RN sy Rae therit annie

Lucena v. Secretary Health and Human Services,

572 F. Supp. 130 (D.P.R. 1983)..............

McCullough v. Heckler, 583 F. Supp. 934 (N.D.

REET Ee ia

Moody v. Heckler, 612 F. Supp. 815 (C.D. IIl.

RRR ee

Munoz v. Secretary of Health and Human

Services, 788 F.2d 822 (lst Cir. 1986).........

Oster v. Heckler, 594 F. Supp. 523 (D.N.D.

ROE a i

Scruggs v. Schweiker, 559 F. Supp. 100 (N.D.

EE ite nus dn aka Sek EGER S dua wade
Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985). .
Taylor v. Heckler, 739 F.2d 1240 (7th Cir. 1984).
Tom v. Heckler, 779 F.2d 1250 (7th Cir. 1985) ..

Yuckert v. Heckler, 774 F.2d 1365 (9th Cir. 1986)

3,13,16,
18,19

16

16,18

16,19

16

16,18

16
13,16
16,18

10

13,14,
15,17

Page

Statutes, Regulations and Rulings:

Title II, 42 U.S.C. (& Supp. II) §§ 401 et seq.:
LT ee Ferree Terre rrr 2
43 U.S.C. § BOBO) . 0. ccc cece cence er evens 2
oi. ss ick cvanewden 2
a | rrr. 10
GR UG.G. 0 GIB ...w ccc ccc ccccc ccccnscees 2
eit Coe |) eee 10
42 U.S.C. § 423(d)(1)(A) ......000eee eee e eee 2,5,6,11
42. U.S.C. § 423(d)(2) .......00 0c eee ween eee 3,10
42. U.S.C. § 423(d)(2)(A) .....00 0. cee eee eee 2,6,13,15
42. U.S.C. § 416(1956) ...........000 eee eee 5
42 U.S.C. § 416(i) (1956) ...........---- eee. 3
42 U.S.C. § 423(a) (1960) .........---- ee ees 5

Title XVI, 42 U.S.C. (& Supp. II) §§ 1381 et seq.:
Mix Cnncexncwnstes 2
42 U.S.C. § 1382c(a)(3)...... 0.0 e cece cece ee 2,10

42 U.S.C. § 1382c(a)(3)(A) .... 0... eee eee ees 6,11,15

vi

Page

42 U.S.C. § 1382c(a)(3)(B) .................. 2,6,13
20 C.F.R. Part 404 (1986):

Section 404.1590 ........................... 4,8,12
Section 404.1520(c)..................00005. 4,11
Section 404.1520(f) .....:................... 4,8
Section 404.1545 .......................0.... 9
I 6 5 iva wcveedscvencucvcsvacs 8
Section 404.1563(a)......................... 7,9,16
I I occ cncccvencnceccucs 9
Section 404.1594(f) ......................... 10
SS ee 17,18
We I PN Ts vos vv ccsnscccsecenvccncce. 9,10,11

17,19

20 C.F.R. Part 404 (1976):

Section 404.1502(a)......................... 7

Section 404.1502(b) ........................ 7
20 C.F.R. Part 404 (1984):

Section 404.1522(b) ........................ 12
20 C.F.R. Part 416 (1976): |

Section 416.080 ............................ 4,8,12

Vii
Page
EN 6 spacer éuseecesecessssbenne 4,8
CEE, cc ce cccnsccccseccoeenseenes 9
a, nh aheeee eed ote eres es 8
I I, on. nas nes ccesesevecwanes 7
III, ov cc ccesevtverscecccevecs 16
wees eae nceneeeeaee wen 9
I IND csc cc ccccceveccescess 10
Section 416.92z%(b) (1984) ..............0055- 12
20 C.F.R. Part 422 (1986):
EE vcs ccecuseacesceeuveeseans 1]
SSR 82-52 (effective August 20, 1980) (Cum.
bre re Se eee 12
SSR 82-55 (effective August 20, 1980) (Cum.
eee ddhdacsiadenatoes ésSsasnee 5,11,12,
14
SSR 82-56 (effective August 20, 1980) (Cum.
errr rrr rer ree 5,12,14
SSR 83-10 (January, 1983) .................. 9
SSR 85-28 (October, 1985) ...............4... 5,12
SSR 86-8 (January, 1986) ................... 12
Disability Evaluation Standards, § 325 (May
ED 6a iy nan nb eViws &4 049 9606-006 20.0% 7
SSA Programs Operations Manual Systems § DI
00401.400A.2 (January, 1984) ............... 7

Miscellanoeus:

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

p.
p.
p.
S.
S.
S.

Rep. No. 1987, 83rd Cong., 2d Sess. (1954) .
Rep. No. 2133, 84th Cong., 2d Sess. (1956) .

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

H. Rep. No. 1189, 84th Cong., 2d Sess. (1956).

Staff of House Comm. on Ways and Means, 98th
Cong., Ist Sess. WMCP 98-2 Background
Material and Data (Comm. Print, Feb. 8.
iy py aloe ne

The Merck Manual (of Diagnosis and Therapy)
(Berkow 13th Ed. 1977).....................

Stedman’s Medical Dictionary, Williams and
Wilkin (24th Ed. 1962) .....................

Page

10

10

20

17

17,19

No. 85-1409

IN THE

Supreme Court of the United States

Ocroser TERM, 1985

No. 85-1409

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 AMICUS CURIAE OF AMERICAN
ASSOCIATION OF RETIRED PERSONS

Statement of Interest of Amicus Curiae

The American Association of Retired Persons (“AARP”), of
1909 K Street, N.W., Washington, D.C. 20049, is a not-for-
profit membership corporation of more than twenty-three
million persons over the age of fifty. AARP is the largest organiz-
ed group of older Americans in the country. In representing the

interests of its members, AARP seeks to: (a) enhance the quality
of life for older persons; (b) promote independence, dignity and
purpose for older persons; (c) lead in determining the role and
place of older persons in society; (d) sponsor research on physical,
psychological, social, economic and other aspects of aging; and
(e) represent the point of view of older persons as members of
the work force. Accordingly, AARP sought and received the con-
sent of the parties to the filing of this brief amicus curiae.

Many members of AARP continue to work and contribute to
the Social Security trust fund; many others, however, are
claimants for and recipients of disability benefits under Titles
II and/or XVI of the Social Security Act (“Act”), 42 U.S.C. §§
401 et seq. and 138] et seq: In either case, the members of AARP
have an interest in ensuring that the Social Security Administra-
tion (“SSA”) properly determines initial disability claims and re-
quests for continued disability benefits consistent with the Act,
including the requirement that the age of claimants be ap-
propriately considered in evaluating their “inability to work by
reason of . . . [their] medically determinable physical or mental
impairment{s].” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A); see
also 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B) (establishing
age as a factor).

Affirmance of the decision below wil] guarantee all claimants,
but in particular those over 50 years of age, a proper individual
assessment of their disability claims. The ruling below invalidated
a threshold regulation that, as applied, established a stringent,
overinclusive threshold step that was used to deny benefits to eligi-
ble claimants — a disproportionately large number of whom were
over 50 years old. If the ruling is affirmed, individuals, including

: Title II establishes the insurance program that provides benefits to disabled
workers who are fully insured, 42 U.S.C. § 423(a); to disabled widows, widowers
and surviving divorced spouses of insured workers, 42 U.S.C. § 402(e), (f); and
to qualifying children of insured workers, 42 U.S.C. § 402(d). Title XVI

wise indicated, the edition for ail United States Code citations herein is 1983
and Supp. 1986; and for C.F.R. citations is 1986.

AARP members in the various certified classes, will receive
reevaluations that are proper under the Act? and, if eligible, the
benefits which Congress intended they receive. If reversed, the
Secretary will continue to have in place a regulation that can
again be applied in a manner that will deny AARP members and
others the benefits to which they are entitled. AARP urges affir-
mance of the Ninth Circuit’s judgment.

ARGUMENT
SUMMARY OF THE ARGUMENT

I. A. The Act mandates that age be considered as a signifi-
cant factor in determining disability. Congress, since 1956, has
defined disability in the Act with reference to the claimant's age.
Pub. L. No. 84-880 § 223, 70 Stat. 815 (1956), codified at 42 U.S.C.
§ 416(i) (1956). In 1968, age was explicitly introduced into the
definition of disability a. a vocational factor relevant to deter-
mining whether a claimant for benefits, who was unable to per-
form his past work because of his impairment(s), would be able
to perform any substantial gainful activity in the national
economy. Pub. L. No. 90-248 § 223, 81 Stat. 868 (1968), codified
at 42 U.S.C. § 423(d)(2).

B. In this context, the claimant’s age in the Social Securi-
ty disability scheme is a highly individualized factor which by
itself could result in differing results on claims for benefits by
two individuals with identical medical conditions.

II. A. The Act authorizes the Secretary to determine disabili-
ty consistent with the definition. It also allows a threshold screen-
ing of claimants who, regardless of their age, education,

2 AARP notes that the Secretary has petitioned that this Court hold and dispose
of at least two class actions, Johnson v. Heckler, 769 F.2d 1202, rehearing en
banc denied, 776 F.2d 166 (7th Cir. 1985), pet. for cert. filed sub nom. Bowen
v. Johnson, 54 U.S.L.W. 3600 (March 11, 1986) (No. 85-1442) (an Illinois class)
and Dixon v. Heckler, 785 F.2d 1103 (2nd Cir. 1986), pet. for cert. filed sub
nom. Bowen v. Dixon, 55 U.S.L.W. 3017 (July 15, 1986) (No. 86-2) (a New York
State class), in light of the disposition here.

and work experience, have not presented an impairment that im-
poses enough limitations to ever be found disabling. This is known
as a de minimis test.

In 1978, SSA adopted the current five-step disability adjudica-
tion policy, known as the sequential evaluation of disability, to
determine whether a claimant met the statutory definition of
disability. 43 Fed. Reg. 55349, 55363 (November 28, 1978),
codified at 20 C.F.R. §§ 404.1520 and 416.920. In this sequence,
the step two severity regulations, as applied by the Secretary,
however, were not a valid de minimis step under the Act because
the severity test screened out individuals — especially older
claimants—who would have established eligiblity after a full
evaluation of their claim.

The step two severity test was applied, at all relevant times,
to deny a claim on the sole basis of medical records without any
consideration at all of factors such as a claimant’s age (or his ac-
tual residual capability to do his past work or any other work).
20 C.F.R. §§ 404.1520(c) and 416.920(c). This occurred because
the step two denial shortcircuited the full evaluation of these fac-
tors which would not be provided until subsequent steps. See Id.
at §§ 404.1520(f) and 416.920(f).-As a result, the Secretary was
denying claims at step two based solely on the nature of the
medical impairment records irrespective of the claimant's age or
functional ability to perform his past work.

B. Claimants who were at least fifty years old and who
could no longer perform their past work were, in particular, los-
ing claims for benefits_at step two that would have been
awarded — and were awarded prior to 1976—had the Secretary
evaluated the claim at step five. The challenged step two regula-
tions, therefore, have had a disproportionately adverse impact
on elderly disability claimants in that step two denied them any
consideration at all of a factor (age) that Congress had identified
as crucial. | 7

Because of repeated adverse court rulings holding that the step
two severity policies as applied were not a de minimis step the
Secretary has recently attempted to change his construction of

the step two regulation (after seven years of implementation) by
an interpretative ruling that purports to adopt a de minimis
reading of the regulation. This 1985 ruling, Social Security Rul-
ing (“SSR”) 85-28 (October, 1985), was never applied to Ms.
Yuckert. Moreover, it is a radical reversal from the Secretary's
earlier interpretative rulings governing the application to claims
of step two. See SSR 82-55 (effective Aug. 20, 1985) (Cum. Ed.
1982); SSR 82-56 (effective Aug. 20, 1980) (Cum. Ed. 1982). While
the Secretary's apparent policy reversal may eliminate the adverse
impact of the severity regulations on older claimants, no factual
record on this new policy has been developed. Thus, it would
be inappropriate for this Court to pass upon it. In the mean-
time, the Court should affirm the ruling below.

I THE SOCIAL SECURITY ACT REQUIRES THE
SECRETARY TO CONSIDER AGE AS A SIGNIFICANT
FACTOR IN DETERMINING DISABILITY CLAIMS, AND
UNDER THE ACT AN OLDER CLAIMANT MAY BE
DISABLED BY REASON OF A MEDICAL IMPAIRMENT
THAT WOULD NOT DISABLE A YOUNGER PERSON

A. The Social Security Act

When Congress established the Social Security Disability In-
surance (“SSDI” or “Title II”) Program in 1954, it provided
disability benefits to insured individuals who were unable to work
due to their medical impairments but only if they were between
the ages of 50 and 65. Pub. L. No. 84-880 § 223, 70 Stat. 815
(1956), codified at 42 U.S.C. § 416 (1956). See also S.Rep. No.
2133, 84th Cong., 2nd Sess. 3-5, reprinted in 1956 U.S. Code
Cong. & Ad. News 3877, 3941, 3947; S.Rep. No. 1987, 83rd Cong.,
2d Sess. 21, reprinted in 1954 U.S. Code Cong. & Ad. News 3710,
3730; H.Rep. 1189, 84th Cong., 2d Sess. (1956): The program was
expanded in 1960 to provide benefits to younger disabled workers.
Pub. L. No. 86-778, § 401, 74 Stat. 967 (1960), codified at 42
U.S.C. § 423(a)(1960). When Congress did so, however, it left in-
tact the definition of disability, as an “inability to engage in any
substantial gainful activity by reason of any medically deter-
minable physical or mental impairment.” 42 U.S.C. § 423(d)(1)(A).

Then, in 1967, the definition of disability for SSDI was fur-
ther amended to its current form. S.Rep. No. 744, 90th Cong.,
Ist Sess. (1967), reprinted in 1967 U.S. Code Cong. & Ad News
2834, 2848. The Act’s current definition of disability provides that
a claimant must have a medically determinable impairment ex-
pected to result in death or to last twelve months, 42 U.S.C. §§
423(d)(1)(A) and 1382c(a)(3)(A), and further provides that:

(2) For purposes of paragraph (1)(A) -

(A) An individual . . . shall be determined to be under
a disability only it his physical or mental impairment
or impairments are of such severity that he is not only
unable to do his previous work but cannot, consider-
ing his age, education and work experience, engage in
any other kind of substantial gainful work which ex-
ists in the national economy . . .

42 US.C. §§ 423(d)(2)(A); see also 42 US.C. § 1382c(a)(3)(B)
(identical language).

The 1967 amendment was designed to check the “ero(sion]”
of the “definition of disability” that had occurred “over... time”
S. Rep. No. 744, 90th Cong. Ist Sess. (1967) reprinted in 1967
U.S. CODE CONG. & AD. NEWS 2834, 2880. Congress was
concerned that some court decisions had given the existing defini-
tion too expansive a scope, with the result that some claimants
had been found eligible whom Congress did not think should
receive benefits. Id. at 2880-1. It resolved this problem by restating
the basic definition of disab ty in 42 US.C. § 423(d)(1)(A), in

One of the factors that Congress specifically wanted to remain
relevant to disability eligibility determinations was the claimant’s
age. The amended definition of disability thus expressly required
that the “age” of a claimant unable to do his past work must be
considered in deciding whether he was able to do other work.
42 US.C. § 423(d)(2)(A).

The 1967 amendment'’s incorporation of age merely codified
what was, and must be, considered a relevant factor in deter-
mining whether a claimant exhibits an “inability to engage in
substantial gainful activity by reason of any medically deter-
minative ... impairment.” This is because a claimant's age
significantly affects such “inability.” First, the same medical im-
pairment may be more incapacitating to an older claimant than
it would be for a younger one. Second, an older claimant may
have a more difficult time in adapting his “residual functional
capacity” (“RFC”) -- his physical capacity to work, despite his
medical impairment -- to new jobs than would a younger clai-
mant. See 20 C.F.R. §§ 404.1563(a) and 416.963(a).*

B. Age Under The Regulations and Rulings
1. Slightness Test

Under SSA regulations in effect prior to 1978, a claim would
be denied if the medical impairment was so slight that it did not
reduce the claimant’s actual ability to work. E.g., 20 C.F.R. §
404.1502(a) (1976). If the impairment was more than slight, it
was evaluated against a “guide,” later known as the “listing”, of
per se disabling conditions. If the impairment was found to be
not of sufficient severity to match the listing, the claim was
evaluated under the totality of circumstances, including the clai-
mant’s ability to do his past work or any other work given his
age and evaluation of other vocational factors. E.g., 20 C.F.R.
§ 404.1502(b) (1976).

> Prior to the 1967 amendment, age was specifically considered by the Secretary
in making disability determinations. See Disability Evaluation Standards, § 325
(5/16/65), where the Secretary states that “in evaluating the effect of an im-
pairment, it should be considered that the impairment may be more limiting
for an older than a younger man” and that “(t]he aging process makes itself
felt with respect to healing, prognosis, physiological degeneration, psychological
adaptability and, in consequence, vocational capacity.”

* See SSA Program Operations Manual System § DI00401.400A.2 (1-84)
(“{R]eference sources and material dealing with chronological age in terms of
vocational impact point to a direct relationship between age and the ability
to adjust to work . . . [t]he regulations reflect age 55 and over as . . . represen-
ting the point when age could be expected to be an adverse consideration.”)

2. Sequential Evaluation

The present sequential evaluation, adopted in 1978, is a five-
step process by which the Secretary determines whether the clai-
mant meets the statutory definition of disability. 20 C.F.R. §§
404.1520 and 416,920. The fifth step of the Secretary’s sequen-
tial evaluation process for the determination of disability claims
specifically requires that if a claimant is unable to do his past
work, SSA “will consider your residual functional capacity and
your age, education and work experience to see if you can do
other work.” 20 C.E.R. §§ 404.1520(f) and 416.920(f) (emphasis
added).

Under this sequential evaluation scheme, age is defined by the
Secretary as chronological age. 20 C.F. R. §§ 404.1563 and 416.963.
In the regulations, the Secretary explains that age is considered
in determining disability because it “affects [a claimant's] abili-
ty to adapt to a new work situation and to do work in competi-
tion with others.” Jd. at (a). The Secretary divides age into four
categories:

1. “Younger person . . . under age 50” for whom “age will
[not] seriously affect [the] ability to adapt to a new
work situation.” Jd. at (b);

2. “Person approaching advanced age ... (50-54) for
whom “age, along with severe impairment and limited
work experience, may seriously affect [the] ability to
adjust to . . . jobs in the national economy.” Id. at (c);

3. “Persons of advanced age . . . (55 or over)” for whom
“age significantly affects a person’s ability to do
substantial gainful activity.” Id. at (d); and

4. Persons “close to retirement age . . . (60-64)” for whom
age is even more limiting unless the claimant has “skills
which are highly marketable.” Jd.*

* The comments accompanying the promulgation of these age classifications
explained that “the statutory definition of disability provides specifically that
(Footnote Continued)

3. The Grids

To further provide uniformity and efficiency, the Secretary
established the “medical-vocational” guidelines known as the
“grids.” 20 C.F.R. Part 404, Subpart P, Appendix 2. These are
tables that determine whether a claimant who has reached the
fifth step is disabled or not. The grid determination is made by
reference to the four factors identified by Congress in the statutory
definition of disability: physical ability, age, education and work
experience.

The grids are three tables, each one tied to a particular residual
functional capacity (“RFC”), i.e., the claimant's remaining ability
to do the requirements of work despite his impairment(s). 20
C.FR. §§ 404.1545 and 416.945 (defining RFC). There is one table
for the RFC necessary to perform the exertional requirements
of the three least demanding categories of work: medium, light
and sedentary. 20 C.F.R. Part 404, Subpart P, Appendix 2; see
also 20 C.F.R. §§ 404.1576 and 416.967; SSR 83-10 (January, 1983)
(defining the physical exertion requirements of heavy, medium,
light, and sedentary work). Each table is a chart directing a deci-
sion on the claim based on the various vocational factors of age,
education, and work experience skills of the person retaining the
particular RFC for that table. See Heckler v. Campbell, 461 U.S.
458 (1983).

Of the three vocational factors— age, education, and work
experience —age is by far the most significant. For example, a
claimant who retains the ability to perform medium exertional
activities despite his impairments will be evaluated on Table 3.

vocational factors must be viewed ... in terms of how the progressive
deteriorative changes which occur as individuals get older affect their voca-
tional capacities to perform jobs.” 43 Fed. Reg. at 55353-54. Consistent with
the categorization itself, the comments also explained that while “deteriorative
changes . . . affect(ing) vocational capacities would most likely occur” at or
after age 55, the age of younger claimants (from age 45) might also adversely
affect their ability to work. Because of the progressive deteriorative nature of
age, the age categories are not applied mechanically. Id. at 55354; see 20 C.F.R.
§ 404.1563(a). Age thus is the only vocational factor that is considered in a highly
individualized, flexible manner. Heckler v. Camplrell, 461 U.S. 458, 462 n.5 (1983).

10

Generally, a claimant, regardless of his vocational factors, will
be found not disabled on this grid. See 20 C.F.R. Part 404, Sub-
part P, Appendix 2, Table 3. The exceptions depend on the clai-
mant’s age. No matter how limited his education nor how un-
skilled his past work experience, the grid directs findings of “not
disabled” unless the claimant is either of “advanced age” (55 to
59) or closely approaching “retirement age” (60 and over). Id.,
Rules 203.10 and 203.01.* No other vocational factor alters the
result; age is the critical factor.’

In sum, the statutory definition of disability (42 U.S.C. §§
423(d)(1) and (2) and 1382c(a)(3), and the implementing federal
regulations (including the grids) have always made the

* The same is true on the other grids. For example, the light grid directs “not
disabled” findings for claimants who are illiterate and have unskilled past work
unless they are also of approaching advanced age. Compare id. at Table 2, Rule
202.16 with id. Rule 202.09 and 202.01. Age is as important on the sedentary
grid. Thus, even where past work developed a person’s skills, advanced age could
still overcome that positive vocational factor to result in a favorable decision.
Compare id. at Table 1, Rules 201.24 and 201.18 with id. Rules 201.09 and 201.01
(claimant will receive different results despite limited or less education, unskilled
or no past work, wholly due to age differences); See also Tom v. Heckler, 779
F.2d 1250, 1256 (7th Cir. 1985).

: The significance of age remains unchanged under the Social Security Disabili-
ty Benefits Reform Act of 1984, Pub. L. 98-460, 98 Stat. 1794, codified at, in-
ter alia, 42 U.S.C. § 421(i). The Reform Act required the Secretary to revise
the sequential evaluation for claimants already receiving benefits, but whose
eligibility is being redetermined. See 50 Fed. Reg. 50135-50136, 50142-50143
(December 6, 1985), codified at 20 C.F.R. § 404.1594(f) and 416.994(b)(5). In
explaining the revised test for such claimants, however, the Secretary emphasized
the continued importance of age—and aging—to disability determinations:

(4) Functional capacity to do basic work activities.

(ii) Many impairment-related factors must be considered in
assessing your functional capacity for basic work activities. Age is
one key factor. Medical literature shows that there is a gradual
decrease in organs function with age; that major losses and deficits
become irreversible over time and that maximum exercise perfor-
mance diminishes with age.

50 Fed. Reg. at 50132 (emphasis added).

11

claimant’s age a significant, and often decisive, eligibility fac-
tor, Not all older (over 50) claimants will, of course, be found
disabled: nor will younger claimants invariably be found not
disabled. But the older a claimant is, the more he may be found
to be unable to “engage in substantial gainful activity by reason
of (his) medically determinable physical or mental impair-
ment(s).” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). Thus, two
claimants with the same RFC, education and work experience,
but of different ages (e.g., 38 and 58), will generally have their
claims adjudged differently: on the grid, the older claimant will
usually win, and the younger claimant will lose. 20 C.F.R. Part
404, Subpart P, Appendix 2, passim. While age is thus a rele-
vant vocational factor for all claimants, it is an especially signifi-
cant one for older claimants.

Il. THE SEVERITY STEP REGULATIONS UNLAWFULLY
DENIED DISABILITY BENEFITS TO MANY OLDER
CLAIMANTS WHO, UPON A FULL EVALUATION OF
THEIR CLAIMS, SHOULD HAVE BEEN FOUND
ELIGIBLE

A. The Severity Step Regulations, As Applied, Were Not A Valid
De Minimis Step Under The Act

For many older claimants, the central statutory vice of the
severity step regulations at issue here (20 C.F.R. §§ 404.1520(c)
and 416.920(c)) was precisely that they were read and applied
by the Secretary to preclude any consideration of how the
claimants’ “age” affected their ability to work. Under the sequen-
tial evaluation, the Secretary specifically “will not consider [a
claimant's] age, education, and work experience.” 20 C.F.R. §§
404.1520(c) and 416.920(c). This regulation was given detailed
interpretation by the Secretary in two SSRs that are binding on
all decision makers on disability claims. 20 C.F-R. § 422.408. SSR
82-55 provided, inter alia, a list of impairments that would always
be determined to be non-severe. SSR 82-55 at 104-06. This SSR
called for a denial of every claim presenting the listed impair-
ment(s) regardless of whether the claimant could prove that the
listed impairment was severe enough to prevent him from doing
his past work or severe enough to render him disabled when his

12

residual capacity to work despite the impairment was considered
with his age and other vocational factors. Id. at 04; see also SSR
82-56 at 112. In addition, the Secretary directed that two or more
“non-severe” impairments could never be combined to establish
a severe impairment that satisfied step two. SSR 82-52 at 104;
20 C.F.R. § 404.1522(b) and 416.922(b) (1984). The reduction im-
posed on a claimant’s actual abilities, measured by his RFC,
would not be considered at step two. 20 C.F.R. §§ 404.1520 and
416.920; SSR 82-55 at 103. It is these regulatory sources, and not
the recently promulgated SSR 85-28,* that defined the Secretary’s
step two severity test as applied to Ms. Yuckert below.

The Secretary now vigorously defends the légitimacy of a “de
minimis” step two standard. Brief for the Petitioner (“Pet. Br.”)
at 17. Under this threshold test, as described by the Secretary
himself, a claim may be denied at step two without an “in-
dividualized vocational evaluation” (ie., without an individualiz-
ed assessment of the effect that the claimant’s age, education and
work experience might have on his ability to work), only “where
a medical assessment establishes that the claimant’s impairment
is sufficiently insubstantial that it reasonably could not be ex-
pected to preclude all substantial gainful activity, irrespective of
the claimant’s age, education and work experience.” Id., see also
id. at 26-27 (similar formulations). In essence, a de minimis
threshold step would, by its terms, allow summary “medical
evidence” denials — denials without full conside~>*ion of the clai-
mant’s vocational factors. But it would only deny benefits to

(SSR 86-8) (Jan. 1986) were applied to respondent's case. For this reason, and
others discussed by respondent in her brief, we agree (with respondent and the
other amici urging affirmance) that it would be inappropriate for this Court

there has been no opportunity for the development of a relevant factual record
or for lower court scrutiny of the rulings in light of such record.

13

claimants who could not possibly meet their ultimate burden of
proving disability because, even if their vocational factors were
fully considered at step five, they would not establish an inabili-
ty to engage in substantial gainful activity.

The Secretary plainly has the authority to “screen out”
claimants with no likelihood of success on their claims, at an early
stage of the eligibility determination process. And if the Secretary's
step two severity regulations, at issue here, had been read and
applied consistently with a de minimis standard, the step two
severity test would have been consistent with the Act. This is
because a de minimis test by its terms respects the statutory alloca-
tion of the burden of proof. Under this allocation, a claimant
who shows an inability to do his past work shifts the burden to
the Secretary to make a fully individualized assessment of whether
his medical impairments render him unable, “considering his age,
education and work experience, [to] engage in any other kind
of substantial gainful work.” 42 U.S.C. §§ 423(d)(2)(A) and
1382c(a)(3)(B).® The problem for the Secretary is that his severi-
ty regulations were neither read nor applied as a de minimis
standard.

The case law establishes that the Secretary has not applied the
severity regulations at issue here consistently with a de minimis
standard” Thus, claims were denied at step two even where con-
sideration of vocational factors, especially age, might have resulted
in a determination that the claimant met the statutory defini-
tion of disability.

* All twelve courts of appeals have interpreted the statutory allocation of the
burden of proof in this way. See Johnson v. Heckler, 769 F. 2d at 1210 (citing
cases). The court below properly held, inter alia, that the severity regulations
transgressed this statutory allocation of the burden of proof. Yuckert v. Heckler,
774 F.2d 1365 (9th Cir. 1986). See also Johnson, 769 F.2d 1202.

© E.g., Farris v. Secretary of Health and Human Services, 73 F.2d 85, 90
(6th Cir. 1985); Stone v. Heckler, 752 F.2d 1099, 1101 (Sth Cir. 1985); Johnson
v. Heckler, 769 F.2d at 1212; Flynn v. Heckler, 768 F.2d 1273, 1274 (Uth Cir.
1985); Brady v. Heckler, 724 F.2d 914, 920 (Lith Cir. 1984); Evans v. Heckler,
734 F.2d 1012, 1014 (4th Cir. 1984). Brown v. Heckler, 786 F.2d 870, 872 (8th

(Footnote Continued)

14

At least until he rescinded SSR 82-55 in October 1985 and SSR
82-56 in January 1986, the Secretary's step two severity policies
did not adhere to the rule that no case would be denied at the
threshold unless the impairment(s) could not possibly prevent
substantial gainful activity regardless of the claimant’s vocational
factors, most importantly age. By implementing a policy that
did not even consider age in this general way to assess a claimant’s

82-55. As such, claims of older claimants — that had previously
been approved and would otherwise have been approved after
a full evaluation —were being denied at step two.

That the severity r-qulations permitted claimants to be sum-
marily denied benefits based on medical evidence alone, when
some consideration of a claimant's vocational factors such as age
might have shown them to be potentially eligible for benefits,
is significant. For it was on this ground that the court below in-
validated the regulations. The Yuckert couct correctly noted that
the Act required the Secretary to consider “both medical and voca-
tional factors” for claimants who showed an inability to do their

Cir. 1986); Hansen v. Heckler, 783 F.2d 170 (10th Cir. 198A); Yuckert v. Heckler,
774 F.2d at 13; Baeder v. Heckler, 768 F.2d 547 (3rd Cir. 1985). See also Dixon
v. Heckler, 785 F.2d at 1105. All of these decisions, including all of those that
the Secretary cites in support of his position (at Pet. Br. 17-18), read the Act
to invalidate any threshold severity step that authorizes the summary (medical
evidence only) denial of benefits to any claimant with more than a de minimis

15

past work, i.e., in making the ultimate determination of disability.
Yuckert, 774 F.2d at 1368, 1369-70; see 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(A). Since the severity regulations preciuded the con-
sideration of vocational factors at all — when such consideration
could make a difference in the ultimate determination of
disability — the Yuckert court concluded that the regulations “con-
flict with the language of the statute that requires the Secretary,
in determining disability, to consider [vocational] factors.”
Yuckert, 774 F.2d at 1369."

B. The Severity Regulations, As Applied, Had A Dispropor-
tionately Adverse Impact On Older Claimants

In transgressing the permissible statutory bound of a threshold
severity step, the Secretary's severity step regulations worked a
disproportionate hardship on older (over 50) claimants. Older
claimants, in particular, have been most wronged by the
Secretary’s step two severity policies because the complete exclu-
sion of age at the severity step effectively preempted application
of the grid concept that beginning after age fifty a less severe
impairment can be disabling. See supra pp. 7-11. The result has
been that claims were denied at step two when, if there had been
full consideration of the medical evidence and vocational fac-
tors, the claim should have succeeded under the Act. Thus, the
step two denial precluded claims raising more than de minimis
impairments for elderly claimants.

“ AARP sharply disagrees with the Secretary's reading of Yuckert. He reads
Yuckert to “require the decision maker *> consider the vocational factors of age,
education and work experience” at st. two of the sequential evaluation pro-
cess and, therefore, to prohibit the Se eta." from employing any threshold
“severity step” at all. E.g., Pet. Br. at | But the Yuckert court's reference to
the required consideration of vocatio . actors is not an order to SSA that it
consider such factors at the second ste_, rather, it explains why a step two severity
test that precluded eligible claimants from proving disability by reference to
vocational factors (at a later step) is not valid. Yuckert, 774 F.2d at 1370. For
the same reason, Yuckert’s invalidation of the severity regulations does not pro-
hibit the Secretary from implementing a de minimis threshold step that, unlike
the severity step, implicity considers these vocational factors.

SS —- —

16

The reported «ses confirm the disproportionate impact. Thus,
most of the claimant, whose step two severity denials were revers.
ed by the courts —on the ground that the severity regulations (ap-
plied to their claims) dictated a stricter than de minimis stan-
dard or had been read and applied by the Secretary in that (strict)
fashion — were individuals age 50 or older”

The facts of just three of these cases — one concerning a claim-
ant “approaching advanced age,” one a claimant “of advanced
age” and one a claimant “close to retirement age,” see 20 C.E.R

" E.g., Brown o. Heckler, 786 F 2d 870, (8th Cir. 1986) (age 62); Andrades
>. Secretary HHS, 790 F.2d 168 (Ist Cir. 1986) (age 50); Munoz v.

HHS, 788 F.2d 822 (Ist Cir. 1986) (age 62); Hansen o. Heckler, 783 F.2d 170,
172 (10th Cir. 1986) (age 55); Johnson v. Heckler, 769 F.2d 1202 (Johnson age
55; Montgomery age 54); Flynn v. Heckler, 768 F.2d 1273 (Lith Cir. 1985) (age
64); Baeder v. Heckler, 768 F.2d 548 (3rd Cir. 1985) (age 55); Stone v. Heckler,
752 F.2d 1099, 1100 (5th Cir. 1985) (age 62); Davis o. Heckler, 748 F.2d 293,
294 (5th Cir. 1984) (age 58); Estren o. Heckler, 745 F.2d 340, 341 (Sth Cir. 1984)
(ag 58); Eoans o. Heckler, 734 F.2d 1012, 1013 (4th Cir. 1984) (age 57); Taylor
0. Heckler, 739 F.2d 1240, 1241 (7th Cir. 1984) (age 61); Delgado v. Heckler,
722 F.2d 570, 571 (9th ~:. 1983) (age 41); Chico v. Schweiker, 710 F.2d 947,

1231 (N.D. IIL. 1984) (age 58); Lucene Secretary HHS, 572 F Supp. 130 (DPR.
1983) (age 61); Clemente v. Schweiker, 564 FSupp. 271, 272 (ED.NY. 1983)
(age 62); and Scruggs o. Schweiker, 559 FSupp. 100, 104 (N.D. Tenn. 1982)
(age 52).

17

John Clemente, for example, was 62 years old; he had worked
for 49 years as a longshoreman. Clemente, 564 F.Supp. at 272.
There was no dispute that his residual capacity to work was less
than that required by his medium and heavy past work. Id. His
RFC was limited due to medical impairments that included three
herniated discs“, chronic bronchitis and emphysema, cervical
(neck and shoulder) spondylosis rendering him unable to look
up or down or to lift objects, hearing loss, and heart disease. Id.*
Nevertheless, the ALJ ruled that all of his impairments were
nonsevere because they were part of the “aging process”, and he
could do “most jobs.” Id. In fact, had his claim been evaluated
on the light grid, Clemente would have been found unable to
work in any jobs. E.g., 20 C.F.R. Part 404, Subpart P, Appendix
2, Rule 202.04 (light RFC).”

of nppeals decisions — all disapproving the Secretary's step two severity policies —
that the Secretary might plausibly have brought to this court for review. He
chose, however, to press the case of an individual claimant who had never even
seriously challenged the regulations at issue (Yuckert, 774 F.2d at 1367) and
never developed the factual record that might ordinarily accompany such a
challenge. Compare Yuckert with Dixon v. Heckler, 785 F.2d 1102 (2nd Cir.
1986). AARP is not suggesting that the choice of an undeveloped claim was
an ethically impermissable one; but this Court should not assume that Ms.
Yuckert’s case as currently developed is truly representative of claimants denied
disability benefits on the ground that their impairments were “not severe.”

“ “Herniated discs” are ruptured intervertebral discs (nucleus pulposus) that
protrude outside of the disc space. Symptoms of pain, weakness, muscle spasms,
etc. result from the protrusion pressing onto the central nervous cord or a nerve
root. The Merck Manual at 1466-71 (Berkow, 13th Ed. 1977).

* “Spondylosis” indicates degenerative changes of the spine in the vertebrae
around the disc space and is usually associated with chronic, i.e, permanent,
disc disease. Stedman's Medical Dictionary, Williams and Wilkin (24th Ed.
1982). See also The Merck Manual at 1469 (1977).

* Other illustrative nonsevere denials that were successfully appealed by
claimants in this “closely approaching retirement age” (60-64) category include:
Brown, 786 F.2d at 870 (Medical impairments are (1) cervical (neck), lumbar
[lower back] spine arthritis; (2) early obstructive lung disease; and (3)
psychophysical musculoskeletal reaction which close!;’ approached the step three
listing at 20 C.F.R. part 404, Subpart P, Appendix 1, § 12.07, all of which

(Footnote Continued)

y
18

A review of the cases reporting “not severe” denials of claimants
age 55-60 tells the same story. Edwin Oster, for example, was
55 years old. Oster, 594 F.Supp. at 524 (D.N.D. 1984). He was
illiterate, and his past work was as a livestock handler and egg
handler. Id. The ALJ found him disabled because he was limited
to sedentary RFC due to a heart condition described as three
vessel coronary artery disease that also caused right arm numb-
ness after exertion, emphysema, and back problems. Id. at 524,
527. The Appeals Council reversed the favorable decision and
ruled that the proper decision was a nonsevere denial even though
Oster could not perform his past work due to his impairments.
As the ALJ had shown, a full evaluation of the claim mandated
the award of benefits.” —

dizziness, and end organ changes creating a high risk of stroke or heart attack
and establishing her medical inability to return to her past work); and Taylor,
739 F.2d at 1241 (Medical impairments are: (1) depression rendering her unable
to perform tedious tasks, be near children or get out of bed and (2) arthritis
with pain and swelling in her hands which established her inability to con-
tinue her 22 year career as an elementary school teacher).

ad Other illustrative nonsevere denials that were successfully appealed by
claimants who were of “advanced age” include: McCullough, 583 F.Supp. at
938 (Medical impairments are: thrombophlebitis (blood clot) in left leg that
limited him to light RFC his medical (RFC) inability to do his past
work and, under the grid 202.01, his right to benefits); Estran, 745 F.2d
at 34] (Medical impairments are: mental retardation (1.Q. of 69), depressive
neurosis, somatization disorder, arthritis, angina, and complaints of dizzy spells
establishing impairments that met the step three listing 20 C.F.R. Part 404,
Subpart P, Appendix 1, § 12.05(c) (1986)); Evans, 734 F.2d at 1013-14. (Medical
impairments are, inter alia, asthma with bronchitis, hypoxemia (low oxygen

sion establishing, even according to the ALJ, the medical (RFC) inability to
perform his past heavy work as a maintenance mechanic); Johnson, 769 F 2d
at 1206. (Medical impairments are diabetes mellitus, lumbago, duodenal ulcer,

(Footnote Continued)

19

Finally, in the 50-54 year category, the examples are as stark.
Mr. Moody, a 52-year-old former bartender, was denied benefits
at step two even though he had principally resided in a state men-
tal health center, nursing homes, or alcoholism treatment centers
due to his impairments. Moody, 612 F.Supp. at 824. His im-
pairments were heart disease (possible post infarction with an
abnormal electrocardiogram, and angina pain), chronic obstruc-
tive pulmonary (lung) disease, personality disorders (diagnosed
as passive/aggressive, explosive, and paranoid), depression,
alcoholism, and leg pains due to intermittent claudication.” Id.
at 824-825. The Court found that each impairment considered
alone met the statutorily authorized de minimis test because each
limited Mr. Moody more than slightly.”

The facts of these cases, and a review of the others, conclusively
establish the adverse impact that step two severity policies as ap-
plied by the ALJs and the Appeals Council had on older

Echazski’s ring of the esophogus and anxiety neurosis establishing her RFC as
sedentary rendering her unable to perform her past medium work as a nurse's
aide and eligibility under the grid, 20 C.F.R. Part 404, Subpart P, Appendix
2, Rule 201.01).

* “Intermittent claudication” is “a condition caused by ischemia of the muscles
due to sclerosis with narrowing of the arteries; it is _ aracterized by attacks
of lameness and pain, brought on by walking, chiefly in the calf muscles;
however, the condition may occur in other muscle groups.” Stedman's Medical
Dictionary at 288.

® Other cases where the step two “not severe” denial was successfully appeal-
ed by claimants who were closely approaching “advanced age” include: Dixon,
589 F Supp. at 1499-1500 (the medical impairments of Raminez, one of the nam-
ed plaintiffs, are: the loss of one eye, chronic low back pain syndrome, and
degenerative changes at the lumbusacral (lower back) spine establishing limited
range of motion to 20° straigist leg raising (instead of 90°) and 30° bending
at the knee (instead of 110°) which established a medically reduced RFC).
Johnson, 769 F.2d at 1206 (Medal impairments of Montgomery are: hyperten-
sion, ischemic heart disease vith angina pectoris, diabetes, mild obesity,
degenerative osteoarthritis of the spine, and the residual effects of fractures of
the hip, leg, and foot, which limited him to sedentary RFC establishing in-
ability to perform his past heavy work as a butcher and leading the ALJ to
find Mr. Montgomery disabled at step five. 20 C.F.R. Part 404, Subpart P, Ap-
pendix 2, Rule 201.01. The Appeals Council overruled the ALJ “error” to issue
a “not severe” denial despite the limited RFC and inability to do past work).

20

claimants. In particular, many of these older claimants would
have succeeded had their age and inability to perform their past
work due to their medical impairments been factored into the
severity threshold test, as is contemplated by a valid de minimis

step.

Where the denials of step two reached a peak of 45.2% of all
the final disability decisions in 1981, House Committee on Ways
and Means, 98th Cong. Ist Sess.,. WMCP 98-2, “Background
Material and Data” at Table 3, p. 79 (Feb. 8, 1983), and the cases
reaching the Court reflected denials defended by the Secretary
which far exceeded that which would indicate application of a
de minimis step, AARP fails to see how the Secretary can now,
in good faith, defend his step two regulations as de minimis. Since
the Court below invalidated the regulations as applied, that deci-
sion should be affirmed. If the Secretary wishes to develop a valid
screening step in his sequence, the order below in no way prevents
him from doing so by promulgating a new regulation. The pre-
sent step, however, should not be allowed to continue to be used
to the detriment of all—but in particular older—claimants.

21

CONCLUSION

For all the foregoing reasons, the judgment of the Court of
Appeals should be affirmed.

Dated: New York, New York
October 7, 1986

Respectfully Submitted,

MILLER, SINGER & RAIVES, PC.
ALFRED MILLER

Perer N. GREENWALD

555 Madison Avenue

New York, New York 10022

(212) 752-8830

ATTORNEYS FOR THE AMERICAN
ASSOCIATION OF RETIRED PERSONS

STEVEN ZALEZNICK
MICHAEL R. SCHUSTER

American Association

of Retired Persons
1909 K Street, N.W.
Washington, D.C. 20049

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0086%3A13. Public record. Not legal advice.