# Petition for Writ of Certiorari — Bowen v. Dixon > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0339%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 482 U.S. 922 ## Text ee oe | (1) " Supreme Court, US, , 8 6 oh > FILE D } JUL 2 1988 | No. JOSEPH So ea JR. Iu the Suprenve Court of the United States OCTOBER TERM, 1985 ‘OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER Vv. DAVID DIXON, ET AL. .‘ PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT CHARLES FRIED Solicitor General Department of Justice Washington, D.C. 20530 (202) 633-2217 QUESTION PRESENTED Whether the court of appeals correctly affirmed the district court’s preliminary injunction barring the Secretary from applying regulations under which a person seeking Social Security disability benefits will be found not to be disabled if he does not have a medically “severe” impairment that significantly lim- its his ability to do basic work activities. (I) II PARTIES TO THE PROCEEDING The petitioner is the Secretary of Health and Hu- man Services. The named respondents are David Dixon, Ricardo Ramirez, Ophelia Casey, Dominga Carrasquillo, Joanne Lockett, Eulalia Terez, Carmen Feliciano and Tomasina Gonzalez. In addition, the district court certified the following class of plain- tiffs (App., infra, 69a-70a) : All persons in the State of New York who have filed or will file applications for disability bene- fits under Title II and/or Title XVI of the Social Security Act, and whose benefits have been or will be denied pursuant to the policies set forth in 20 C.F.R. §§ 404.1520(c) and .1521, 416.920 (c) and .921 (1982), and Social Security Ruling 82-55 (1982); and all recipients of such benefits who have made or will make claims for continued benefits, and whose benefits have been or will be terminated pursuant to the same policies. The plaintiff class does not include, at this time, any such persons who received decisions of the Secretary on or before July 19, 1988 and failed to file a complaint in federal district court or to appeal to the next level of administrative review within 60 days after the date of the re- ceipt of such decision. TABLE OF CONTENTS Page Opinions below ........................--....-csessess-ceeessnescssensensesnensens 1 pgp LEY ro 2 Statutory and regulatory provisions involved —............ 2 I ak alt i cctets innenetincbennatntadnipsoczenenasenccosseseseces 2 Reasons for granting the petition ................................... g I seals eae enestptnapapencenneananenuscgecosnenccete 13 Apia A ...n.n-.--..-....n2.n2.22n0.cennsenenncmorcncccecercenceseneenseenes la Appendix B .......................0.-----c-e--ecescecesnescensssnsesensenseneenes 16a Apppemi Cann n.nn-n-n-.2-20-20-n<-n220.n-.anencenereenecoenersssenssnseenecenes 18a Appendix D. .....................-..-..-..-.-0s-ecseceeneneecescosceccenneeseeeees 59a BpmpeEEe FE .n...-.--..-.----------220220-o-cancnenesnesserenqneannoccvsneensenss 68a Append | FP uu.............--.-.----.-.-----0-no-neenercnsoeeseanesercsenseeceeeees 89a Ppppem Gann... -n----0-nnasernnenqereroenneceeccrccsceenoenees 92a TABLE OF AUTHORITIES Cases: Bowen Vv. City of New York, No. 84-1923 (June 2, nl re 10, 12 Bowen Vv. Yuckert, cert. granted, No. 85-1409 (May BED enishemiinen 0s Raa 2 ne Ae Sod -sseacd, 9, 18 FTC v. Standard Oil Co., 449 U.S. 232 _................... 10 Heckler v. Lopez, 463 U.S. 1328 -............................... 11 Heckler v. Redbud Hospital District, No. A-32 (July 24, 1985), motion to vacate denied (Aug. FD -ccccesciiebitinesscsckdidieincntiicinseicbdasnihdeRecihinerecemsoes 11 Schisler v. Heckler, 107 F.R.D. 609, aff'd, 787 F.2d NC eee a NT cD, 12 Statutes and Regulations: Social Security Act, 42 U.S.C. (& Supp. II) 301 et seq.: Tit. II, 42 U.S.C. (& Supp. II) 223 et seq.: 8 205, 42 U.S.C. 406(g) .............................. 5, 6, 11 (III) IV Statutes and reguiations—-Continued : Page § 223(a)(1)(D), 42 U.S.C. (Supp. IT) 423(a)(1)(D) . 3 § 223(d), 42 U.S.C. (& Supp. ID 423(d).. 8,11 § 223 (d) (1) (A), 42 U.S.C. (& Supp. IT) 423(d)(1)(A) ..........-.-.. 2, 3, 92a § 223(d) (2) (A), 42 U.S.C. (& Supp. IT) Ge ane (eee 2, 8, 6, 7, 92a § 223(d)(2)(C), 42 U.S.C. (Supp. II) SED crcneprnepenermaningrines 2, 93a Tit. XVI, 42 U.S.C. (& Supp. II) 1382c et seq.: § 1614(a), 42 U.S.C. (& Supp. II) 1382 (a) RP ETS ne ee eee 3 § 1614(a) (3), 42 U.S.C. (& Supp. II) i RRA AIRE I ss LE Te he ABD 8 § 1614(a) (3) (A), 42 U.S.C. 1382c(a) (3) PA SE Ome eme ne SKS 2, 3, 7, 93a § 1614(a) (3) (B), 42 U.S.C. 1382c(a) (3) ear, ies ...2, 3, 6, 98a § 1614(a) (3) (G), 42 US. C. (Supp. II) ia, 2, 94a € 1631(c) (3), 42 U.S.C. 1883 (c) (3)... 11 Social Security Benefits Reform Act of 1984, Pub. L. No. 98-460, $8 Stat. 1794 et seq......... x Fk Sec 12 63G), Se meee Bees jn... 12 § 4, 96 Stat. 1800-1801 _.............................. 2 ane & S4Qn eee - | EI eee ne 8 I 12 20. C.F.R.: I eaten 2, 3, 94a Section 404.1520(b) 00. er 4, 95a Section 404.1520 (c) _.....................-....--.------ 4, 95a eee 4, 95a ee 5, 954 \ I i eecinceneoeees 5, 96a Vv Statutes and regulations—Continued : Page EE 2, 96a Section 404.1621(a) .................................... 4, 96a | | Sanaa 4, 96a Section 404.1522 (1984) .....0.0........ ical 7 semen 2,3, 97a IE ER ee 4, 97a TO Te ee ae Oe 4, 97a I ac entiahlnealeilinat 4, 97a 5 EE 5, 98a ERE REED ema re) 5, 98a a RE 2, 98a I i incenmente 4, 98a I eee 4, 99a Section 416.922 (1984) 0.00. 7 Miscelianeous: 43 Fed. Reg. (1978) : SANE a ae a CD Me Re a 7 ESET Ce eer Ree cree 7 Social Security Ruling: I a oa ential nichsatenlistiaintind 7 7 Ruling 85-ITI-II (Apr. 1985) —.............2............ In the Supreme Court of the United States OcTOBER TERM, 1985 No. Oris R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER v. DAVID DIXON, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT The Solicitor General, on behalf of the Secretary of Health and Human Services, petitions for a writ of certiorari te review the judgment of the. United States Court of Appeals for the Second Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App., infra, la-15a) is reported at 785 F.2d 1102. The June 22, 1984 opinion of the district court on respondents’ motions for class certification and a preliminary in- junction (App., infra, 18a-58a) is reported at 589 F. Supp. 1494, and the June 22, 1984 opinion of the district court on the motions by certain individual respondents to intervene (App., infra, 59a-67a) is (1) 9 - reported at 589 F. Supp. 1512. The_July 26, 1984, order of the district court granting the motions for class certification and a preliminary injunction (App., infra, 68a-88a) and the July 22, 1985, order of the district court denying the Secretary's motion to vacate the preliminary injunction (App., infra, 89a- 9la) are unreported. JURISDICTION The judgment of the court of appeals was entered on March 7, 1986 (App., infra, 16a-17a). By order dated May 27, 1986, Justice Marshal] extended the time within which to file a petition for a writ of certiorari to and including July 3, 1986. The juris- diction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED Sections 223(d)(1)(A) and (2)(A), 1614(a) (3) (A) and (B) of the Social Security Act, as codi- fied at 42 U.S.C. (& Supp. Il) 423(d)(1)(A) and (2) (A), 1382e(a) (3) (A) and (B) ; Sections 223 (d) (2)(C) and 1614(a)(3)(G) of the Social Security Act, as added by Section 4 of the Social Security Dis- ability Benefits Reform Act of 1984, Pub. L. No. 98-460, 98 Stat. 1800-1801 (codified at 42 U.S.C. (Supp. II) 423(d)(2)(C), 1382c(a) (3) (G)); and 20 C.F.R. 404.1520, 404.1521, 416.920 and 416.921 are reproduced at App., infra, 92a-99a. STATEMENT This New York-wide class action involves the valid- ity of regulations under which a claimant for Social Security disability benefits will be found not to be disabled if he does not have a medically “severe” impairment. The question of the validity of these regulations is already before the Court in Bowen v. Yuckert, cert. granted, No. 85-1409 (May 19, 1986). _ 1. Title II of the Social Security Act provides, inter alia, for the payment of insurance benefits to a person who is “under a disability” (42 U.S.C. (Supp. Il) 423(a)(1)(D)). Disability benefits also are provided under the Supplemental Security Income program established by Title XVI of the Act (42 U.S.C. (& Supp. Il) 1882(a)). The term “disability” is defined under both programs to mean the inabil- ity “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months” (42 U.S.C. 423(d)(1)(A), 1882e(a) (3) (A)). The Act further provides that 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. (& Supp. II) 423(d) (2) (A), 1882e(a) (3) (B)). To implement these statutory definitions, the Sec- retary has established a five-step “sequential evalua- tion” process to be followed in determining whether a claimant is disabled. 20 C.F.R. 404.1520, 416.920. At step 1, the decision-maker (the state agency, ad- ministrative law judge (ALJ), or Appeals Council) determines whether the individual is engaged in work that constitutes substantial gainful activity. If so, he is found not to be disabled. 20 C.F.R. 404.1520 4 (b), 416.920(b). If the claimant is not engaged in substantial gainful activity, the decision-maker must determine at step 2 (at issue here) whether the claimant has a medically “severe” impairment. 20 C.F.R. 404.1520(c), 416.920(c). An impairment is not “severe” if it does not “significantly limit” the claimant’s physical or mental ability to do “basic work activities’ (20 C.F.R. 404.1521(a), 416.921 (a)), which include physical activities such as walk- ing, standing, lifting, etc.; seeing, hearing and speak- ing; understanding and carrying out simple instruc- tions; using judgment; responding appropriately to supervision and co-workers; and dealing with changes in a routine work setting. 20 C.F.R. 404.1521(b), 416.921(b). If the claimant’s impairment does not significantly limit his ability to do basic work actjiv- ities, he is found not to be disabled on this ground alone, without a specific consideration of his age, education, and work experience. 20 C.F.R. 404.1520 (c), 416.920 (c).* If the claimant does have a “severe” impairment, the decision-maker then must determine at step 3 whether the impairment is so severe as to be the equivalent of one of the listed impairments that are automatically deemed to be disabling. 20 C.F.R. 404.1520(d), 416.920(d). If the impairment is not that severe, the decision-maker then must determine ‘at step 4 whether the claimant is able to do his own 1 As we have explained in our certiorari petition in Yuckert (at 5 n.1), the sequence in which the severity of an impair- ment is considered now differs somewhat under the new regu- lations governing the evaluation of persons who already are receiving disability benefits. However, that difference in sequence does not affect the question whether the absence of a “severe” impairment is by itself sufficient to support a determination that a claimant is not disabled. 5 past work; if so, he is not disabled. 20 C.F.R. 404.- 1520(e), 416.920(e). Finally, if the claimant cannot do his past work, the decision-maker must determine at step 5 whether, in light of the claimant’s age, edu- cation, and work experience, he can perform other work that exists in the national economy. 20 C.F.R. 404.1520(f), 416.920(f). 2. This class action—which consists of four con- solidated suits—was filed on September 23, 1983, in the United States District Court for the Southern District of New York to challenge the “severity” step of the sequential evaluation process. In an opinion dated June 22, 1984, the district court granted re- spondents’ motions for class certification and a pre- liminary injunction (App., infra, 18a-58a). a. The district court certified a class of all persons in New York who: (i) have filed or will file applica- tions for disability benefits under Title II or Title XVI of the Act and whose applications have been or will be denied on the basis of the severity regulations, or (ii) have received disability benefits that have been or will be terminated pursuant to the same policies (App., infra, 55a). But the district court provided that the class ‘‘at this time” does not include any persons who received decisions of the Secretary on or before July 19, 1983, and failed to file a complaint in federal district court or to appeal to the next level of administrative review within 60 days (App., infra, 70a). The cut-off date of July 19, 1988, which is approximately 60 days before the complaint was filed in this case, was intended to comply with the require- ment in 42 U.S.C. 405(g) that a claimant seek judi- cial review within 60 days of the Secretary’s final decision (App., infra, 28a & n. 18). 6 However, the court dispensed with the other pre- requisite to suit that ordinarily is applicable under 42 U.S.C. 405(g) by including in the class persons who had not exhausted their administrative remedies and obtained a decision from the Appeals Council on their claims for benefits. The court appeared to acknowledge that respondents’ challenge to the “sever- ity” regulations was not collateral to their substan- tive claims for benefits and that exhaustion of ad- ministrative remedies was not futile because benefits might be awarded or denied on some other basis (App., infra, 29a-80a & n.19). Nevertheless, the court concluded that exhaustion should not be re- quired because class members would experience finan- cial hardship if they did not receive disability bene- fits and because the ALJs and the Appeals Council are not free to disregard applicable regulations when adjudicating claims for benefits (7d. at 30a-3la). b. The district court determined that a preliminary injunction should be entered because, in its view, the class members would suffer irreparable injury with- out that relief and were likely to succeed on the merits of their contention that the severity regula- tions are inconsistent with the Social Security Act. The court read 42 U.S.C. 423(d) (2) (A) and 1382c (a) (3) (B) to require the decision-maker to consider the vocational factors of age, education, and work experience in connection with every claim for benefits, and it therefore held that benefits cannot be denied solely on the basis of the medical severity of the im- pairment (App., infra, 33a-35a). The district court rejected the Secretary’s contention that the regula- tions are a valid means of screening out those claim- ants who have slight or de minimis impairments. Al- though it recognized that the Secretary had explained \ T the regulations on that basis when they were promul- gated in 1978 (see 43 Fed. Reg. 9284, 9296), it ob- jected to the fact that “the regulation itself does not use the Secretary’s language” (App., infra, 36a). The court further recognized that the severity step in the sequential evaluation process was supported by the legislative history of the 1967 amendments to the Social Security Act and that the predecessor reg- ulations had been promulgated in 1968 to implement those amendments. But the court nevertheless be- lieved that the language of 42 U.S.C. 423(d) (2) (A) and 1382c(a)(3)(A) rendered the regulations in- valid (App., infra, 22a-23a, 39a-42a).” ce. On July 25, 1984 the district court entered a broad order that enjoins the Secretary from deny- ing or terminating benefits on the basis of the policies in the challenged regulations and directs retroactive relief for all class members whose benefits already have been denied or terminated on the basis of those policies (App., infra, 68a-88a). In particular, the court ordered the Secretary to identify all class mem- bers within either 30 days or 75 days; to reopen the administrative decisions denying or terminating ben- ? The district court also invalidated Social Security Ruling (SSR) 82-55, which gave additional guidance to adjudicators regarding the severity step of the sequential evaluation process (App., infra, 46a-50a). SSR 82-55 provided, inter alia, that the combined effect of several impairments would not be considered unless each such impairment, considered sepa- rately, was severe. See also 20 C.F.R. 404.1522, 416.922 (1984). SSR 82-55 was superseded by statutory amendments, effective December 1, 1984, that require the consideration of the combined effect of several impairments (see page 8 & note 3, infra), and SSR 82-55 therefore has been formally rescinded (SSR 85-III-II, at 47 (Apr. 1985)). As a result, this aspect of the district court’s decision is not in issue here. 8 efits to class members and to readjudicate those claims; and to reinstate benefits, as of June 22, 1984, to all class members whose benefits were terminated (id. at 71a-74a). 3. In a brief order dated July 22, 1985, the dis- trict court denied the Secretary’s motion to vacate the preliminary injunction, rejecting the contention that the severity step of the sequential evaluation process was ratified by the Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 98-460, 98 Stat. 1794 et seg. (App., infra, 89a-91a). Section 4 of the 1984 Act requires the Secretary, effective December 1, 1984, to consider the combined effect of impairments in determining whether the claimant’s impairments are severe (98 Stat. 1800-1801).*° The district court acknowledged that Congress approved the sequential evaluation process when it passed the 1984 Act, but it concluded that Congress did not actually validate the severity step itself (App., infra, 9la). 4. The court of appeals affirmed the preliminary injunction and the district court’s refusal to vacate 3 Subsections (a) and (b) of Section 4 of the 1984 Act (98 Stat. 1800) add a new paragraph (C) to Section 223(d) of the Social Security Act (42 U.S.C. (Supp. II) 423(d) (2)) and a new paragraph (G) to Section 1614(a) (3) of that Act (42 U.S.C. (& Supp. II) 1882c(a) (3)). Each paragraph requires the Secretary, when considering whether a claimant’s impair- ment or impairments “are of a sufficient medical severity that [they] could be the basis of eligibility,” to “consider the com- bined effect of all of the individual’s impairments without re- gard to whether any such impairment, if considered sepa- rately, would be of such severity.” Subsection (c) (98 Stat. 1801) provides that these amendments “shall apply with respect to determinations made on or after the first day of the first month beginning after 30 days after the date of the enactment of this Act.” 9 that injunction (App., infra, la-15a). The court of appeals acknowledged the Secretary’s arguments that the challenged regulations “are fully consistent with the Act” and that the district court “should have deferred to the Secretary’s longstanding view that medical evidence alone may justify a finding that the claimant is not disabled within the meaning of the Act” (id. at 10a). But “[w]hether or not these substantive contentions may prevail on the ultimate decision of the merits of [respondents’] claims,” the court stated, the preliminary injunction should not be disturbed because, in its view, the district court did not abuse its discretion in entering the injunction (id. at.10a-lla). In a brief discussion that did not mention the origins of the relevant statutory and reg- ulatory provisions, the court of appeals simply stated that the district court had not applied “erroneous legal principles” regarding preliminary injunctions generally (id. at 1la-12a). The court also was “not persuaded” (id. at 12a) that the legislative history of the 1984 Act rendered the preliminary injunction improper, observing that “in the absence of greater clarity,” the district court was not required to con- clude that the legislative history constituted a “defin- itive ratification” of the principle embodied in the severity regulations that benefits may be denied with- out a specific consideration of the claimant’s age, ed- ucation, and work experience (id. at 12a, 14a). REASONS FOR GRANTING THE PETITION 1. The Court has granted certiorari in Bowen v. Yuckert, No. 85-1409 (May 19, 1976), to consider the validity of the regulations under which Social Security benefits may be denied if the claimant does not have a medically “severe” impairment. There is no occasion for plenary review of that issue here as 10 well. The Court therefore should hold the petition in this case and dispose of it as appropriate in light of its decision in Yuckert. 2. a. Aside from the erroneous ruling below re- garding the validity of the severity regulations, the injunction affirmed by the court of — was im- proper in two other respects: : First, the district court erroneously included in the class and granted relief to numerous claimants who did not exhaust their administrative remedies. As the district court appears to have recognized (App., infra, 29a-30a & n.19), respondents’ challenge to the validity of the severity regulations is not at all collateral to their claims for benefits; that chal- lenge goes to the very basis of the administrative decisions denying their claims. Moreover, respond- ents challenge not a “secret” policy, as the Court found in Bowen v. City of New York, No. 84-1923 (June 2, 1986), slip op. 12-18, 17, but a policy em- bodied in public regulations and elaborated upon in formal Social Security Rulings. Similarly, although the Court sustained the district court’s findings in City of New York that the class members would suffer a medical setback if they were required to exhaust their administrative remedies, such that the pursuit of administrative remedies would itself af- firmatively cause harm (compare FTC v. Standard Oil Co., 449 U.S. 232, 242, 244 (1980) ), in this case the injuries respondents allege are the financial con- sequences that result from the denial of their claims for benefits on the merits at a preliminary stage of the administrative review process. If those conse- quences, which Congress must have anticipated, were sufficient to constitute “irreparable injury” that per- mitted a court to excuse the failure by claimants to pursue their administrative remedies, the exhaustion 11 requirement under 42 U.S.C. 405(g) would be largely vitiated under the disability and SSI programs.* Second, although the court labeled its order a “pre- liminary injunction,” the relief granted went far beyond “the usual ‘prohibitory’ injunction which merely freezes the positions of the parties until the court can hear the case on the merits.” Heckler v. Lopez, 463 U.S. 1328, 1833 (1983) (Rehnquist, Cir- cuit Justice). The district court, affirmed by the court of appeals, has barred the Secretary from uti- lizing the severity regulations in adjudicating all dis- ability claims in New York, even though neither court has finally ruled on the validity of the regulations. Indeed the court of appeals relied on the supposedly “preliminary” nature of the relief to avoid address- ing the merits of the Secretary’s arguments. As a practical matter, that relief is not “preliminary” for the individual claimants affected, because their claims must be adjudicated, and either granted or denied, without reference to the challenged regulations. Cf. Heckler y. Redbud Hospital District, No. A-32 (July 24, 1985), slip op. 5-6 (Rehnquist, Circuit Justice), motion to vacate denied (Aug. 28, 1985). Moreover, the regulations the Secretary is prohibited from ap- plying rest on a principle—that benefits may be denied on the basis of medical evidence alone, with- out a specific consideration of the claimant’s age, education, and work experience—that has been an integral part of the disability program virtually since * Congress did not contemplate any such exception from ex- haustion requirements for disability or SSI claimants, because it specifically directed that judicial review would be available under both programs in the same manner as was then generally provided in 42 U.S.C. 405(g), which requires a “final decision” as a prerequisite to judicial review. See 42 U.S.C. (& Supp. II) 423(d), 1883 (c) (3). 12 its inception and has been embodied in formal regu- lations for more than 25 years. See Yuckert Pet. 11-16. In addition to this broad prospective relief, the courts below also erred in requiring, incident to a supposediy “preliminary” injunction, the readjudi- cation of the claims of all class members whose ben- efits were denied in reliance on the severity regula- tions and the reinstatement of benefits to class mem- bers whose benefits were terminated. b. Although we believe that the court of appeals clearly erred in these additional respects when it affirmed the district court’s preliminary injunction, we do not seek review at this time on the issues of exhaustion of administrative remedies and the proper basis and scope of a preliminary injunction in this setting. The retroactive relief ordered by the district court for class members whose benefits were denied or terminated was not stayed, and that relief is now being accomplished.* All that then will remain is the prospective effect of the injunction. If the Court sus- 5 Independently of the preliminary injunction affirmed by the court of appeals, all class members in this case whose » benefits weve terminated are entitled under Section 2(d) of the 1984 Act (98 Stat. 1797) to have their claims reopened and readjudicated because they also were members of the certified class in Schisler v. Heckler, 107 F.R.D. 609 (W.D.N.Y. 1984), aff'd, 787 F.2d 76 (2d Cir. 1986) (petition for rehear- ing pending), which was an action raising the question whether medical improvement must be shown in order for a claimant’s benefits to be terminated. In addition, class mem- bers in this case who sought benefits on the basis of a mental impairment have also been affected by the new standards under Section 5 of the 1984 Act (98 Stat. 1801) for eval- uating such claims. See Bowen v. City of New York, slip op. 18 n.14. We have been informed by the Department of Health and Human Services that the claims of class members affected by Sections 2 and 5 of the 1984 Act are now being readjudicated. 13 tains the validity of the severity regulations in Yuck- ert, the preliminary injunction in the instant case must be reversed on the merits, irrespective of the other errors committed by the court below. On the other hand, if the Court were to hold in Yuckert that the severity regulations are invalid, the Secre- tary of course would follow that ruling in New York, as elsewhere, thereby mooting the other questions re- garding the propriety of the preliminary injunction in this case. CONCLUSION The petition for a writ of certiorari should be held and disposed of as appropriate in light of the Court’s decision in Bowen v. Yuckert, cert. granted, No. 85- 1409 (May 19, 1986). Respectfully submitted. CHARLES FRIED Solicitor General JULY 1986 APPENDIX A UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 1985 Docket Nos. 84-6288, -6302, -6304, -6306 Nos. 611, 612, 613, 614 DAvID DIXON, RICARDO RAMIREZ, OPHELIA CASEY, DOMINGA CARRASQUILLO, JOANNE LOCKETT, EU- LALIA TEREZ, CARMEN FELICIANO, and TOMASINA GONZALEZ, Individually and on Behalf of All Others Similarly Situated, PLAINTIFFS-APPELLEES —and— THE STATE OF NEW YORK AND CESAR PERALES, as Commissioner of the New York State Department of Social Services, PLAINTIFFS-INTERVENORS-APPEL- LEES v. MARGARET M. HECKLER, as Secretary of the Department of Health and Human Services, DEFENDANT-APPELLANT Argued: December 18, 1985 Decided: Mar. 7, 1986 Before: OAKES, KEARSE, and PIERCE, Circuit Judges. (la) 2a KEARSE, Circuit Judge: The Secretary of Health and Human Services (“Secretary”) appeals from orders of the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, granting and refusing to vacate a preliminary injunction that, inter alia, forbids the Secretary to deny or termi- nate disability benefits on the basis of 20 C.F.R. $§ 404.1520(c), 404.1521, 416.920(c), and 416.921 (1984), the so-called “severity regulations” used by the Secretary in evalauting claims for disability ben- efits under the Social Security Disability Insurance program established by Title II of the Social Security Act, as amended (the “Act’”), 42 U.S.C. 401 et seg. (1982), and the Supplementa] Security Income pro- gram established by Title XVI of the Act, as amended, 42 U.S.C. § 1381 et seg. (1982). In an opinion re- ported at 589 F. Supp. 1494 (1984), the court granted the preliminary injunction after finding that plaintiffs had demonstrated a likelihood of success on the merits of their claim that the severity regu- lations violate the Act. The court denied the Secre- tary’s subsequent motion to vacate the preliminary injunction, rejecting the contention that amendments to the Act enacted after entry of the preliminary injunction constituted a legislative ratification of the severity regulations. On appeal, the Secretary con- tends that the injunction is improper because the reg- ulations are consistent with the Act and because the court failed to give sufficient deference to the Secre- tary’s longstanding interpretation of the Act. We conclude that the granting of the injunction was not an abuse of the court’s discretion and we therefore affirm. 3a BACKGROUND In determining the eligibility of applicants for dis- ability benefits under Title II or Title XVI of the Act, the Secretary uses a five-step sequential evaluation process, of which the severity regulations are a part. Under this process, only certain types of evidence are considered at each step of the evaluation. At issue in the present case is step 2; a failure to meet the dis- ability criteria set by step 2 results in a denial of benefits without proceeding to any later step. In City of New York v. Heckler, 742 F.2d 729, 732 (2d Cir. 1984), cert. granted, 106 S. Ct. 57 (1985), we described the process as follows: The first step in the sequential process is a decision whether the claimant is engaged in “substantial gainful activity.” If so, benefits are denied. 20 C.F.R. §§ 404.1520(a), (b), 416.920 (a), (b) (1983). If not, the second step is a decision whether the claimant’s medical condi- tion or impairment is “severe.” If not, benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920 (c). If the impairment is “severe,” the third step is a decision whether the claimant’s impair- ments meet or equal the “Listing of Impair- ments” set forth in subpart P, app. 1, of the so- cial security regulations, 20 C.F.R. §$§ 404.1520 (d), 416.920(d). These are impairments ac- knowledged by the Secretary to be of sufficient severity to preclude gainful employment. If a claimant’s condition meets or equals the “listed” impairments, he or she is conclusively presumed to be disabled and entitled to benefits. If the cliamant’s impairments do not satisfy the “List- ing of Impairments,” the fourth step is assess- _—* y— 4a ment of the individual’s “residual functional ca- pacity,” .e., his capacity to engage in basic work activities, and a decision whether the claimant’s residual functional capacity permits him to en- gage in his prior work. If the residual func- tional capacity is consistent with prior employ- ment, benefits are denied. 20 C.F.R. §§ 404.1520 (d), 416.920(e). If not, the fifth and final step is a decision whether a claimant, in light of his residual functional capacity, age, education, and work experience, has the capacity to perform “alternative occupations available in the national economy.” Decker v. Harris, 647 F.2d 291, 298 (2d Cir. 1981); 20 C.F.R. §§ 404.1520(f), 416.920(f). If not, benefits are awarded. At the times pertinent to the proceedings below, step 2 of the sequential process was set forth in the Sec- retary’s regulations as follows: You must have a severe impairment. If you do not have any impairment(s) 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 dis- abled. We will not consider your age, education, and work experience. 20 C.F.R. §§ 404.1520(e), 416.920(c) (1984). The plaintiffs in these actions, which have been consolidated for appeal, are persons whose applica- tions for disability benefits were denied by the Sec- retary at the second step of the evaluation process on the ground that the medical evidence alone as to any single impairment, without regard to the claim- ants’ age, education, employment experience, ability to return to prior work, or other vocational factors, 5a failed to establish the existence of an impairment that significantly limited their ability to perform basic work activities. To the extent pertinent here, the plaintiff class consists of persons in the State of New York who have been or will be denied disability benefits under Title II or Title XVI of the Act or who have had or will have such benefits terminated on the basis of the severity regulations. Plaintiffs contend, inter alia, that the Act requires considera- tion of vocational factors such as age, education, and work experience, before an applicant may be found not disabled, and that Step 2 of the Secretary’s proc- ess is therefore inconsistent with the Act. They also contend that the Secretary is required to consider their impairments in combination and is not to re- quire that a single impairment be sufficiently severe to constitute a disability without consideration of their other impairments. A. The Granting of the Preliminary Injunction Following the commencement of the litigation, plaintiffs moved for a preliminary injunction — (1) prohibiting the Secretary from denying or terminating Social Security or SSI benefits due to the asserted non-severity of the claimant’s im- pairments; (2) directing the Secretary to re- store benefits to all members of the pruposed class who (a) received decisions, finding them no longer eligible for benefits that were rendered at. any stage of the administrative process, on July 20, 1983 or thereafter, or (b) had pending challenges to such decisions on July 20, 1983; and (38) directing the Secretary to reopen the applications of all class members whose applica- tions for benefits have been denied by the Sec- 6a retary, at any stage of the administrative proc- ess, since July 20, 1988, and to redetermine these applications without reference to the threshold severity test. 589 F. Supp. at 1501. Applying only the more ex- acting branch of this Circuit’s standard for the granting of preliminary injunctive relief, see Jack- son Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir. 1979) (per curiam) (moving party must show, in addition to irreparable injury, either (a) likelihood of success on the merits, or (b) fair ground for litigation plus a balance of hardships tipping decidedly in his favor), the court granted the motion on the ground that plaintiffs had estab- lished a likelihood of success on the merits of their claims and had shown that they would suffer ir- reparable harm in the absence of preliminary injunc- tive relief. In considering plaintiffs’ likelihood of succeeding on the merits of their claims, the court noted that the scope of its review, in light of the Secretary’s authority to establish regulations imple- menting the disability provisions of the Act, was limited to a determination of whether the regulations that had been promulgated “ ‘exceeded the Secre- tary’s statutory authority and whether they [were] arbitrary and capricious.’” 589 F. Supp. at 1502 (quoting Heckler v. Campbell, 461 U.S. 458, 466 (1983) ). The court began by looking at the language of the definition of disability found in 42 U.S.C. §§ 423(d) and 1382¢(a) (3). Sections 423(d) (1) (A) and 1382c (a) (3) (A) define “disability” as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or Ta mental impairment which can be expected to re- sult in the death or which has lasted or can be expected to last for a continuous period of not less than 12 months.... Sections 423(d) (2) (A) and 1382c(a) (3) (B) go on to state that “[f]or purposes of” this definition, a person will be found disabled only if his physical or mental impairment or im- pairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experi- ence, engage in any other kind of substantial gainful work.... Reading the two subsections together, the court con- cluded that the statute appears to require that a claimant’s age, education, and work experience be considered in determining whether or not he is dis- abled. The court noted that on at least two occasions this Court had reserved decision on the question of tne validity of the severity regulations, see Keith v. Heckler, 732 F.2d 1089, 1094 (2d Cir. 1984), and Chico v. Schweiker, 710 F.2d 947, 953 (2d Cir. 1983), and that in Chico we had noted “a seeming conflict between the letter of § 423(d) (2) (A), on the one hand, and, on the other, the Secretary’s under- standable desire to supply . . . some threshold that a claimant must pass before the Social Security Ad- ministration is required either to apply the Appendix 2 guidelines or to call vocational experts,” 710 F.2d at 953. The district court concluded that since 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,” 589 F. Supp. 8a at 1502 (emphasis in opinion), the Secretary had separated two aspects of the disability inquiry that were intertwined in the statute, and that step 2 of the severity regulations foreclosed consideration of one aspect that the statutory definition required to be taken into account. The court rejected the Secretary’s contention that her interpretation of the statute reflected Congress’ true intent, noting that in other sections of the statute, such as 42 U.S.C. § 423(d)(2)(B), Con- gress’s intent to permit the denial of benefits without consideration of vocational characteristics had been expressed unambiguously. It also rejected the conten- tion that the severity regulations merely serve to screen out claims in which the impairment is plainly de minimis, finding that that contention was in- consistent with the language of the regulations. The court further noted that although the severity regula- tions speak of the claimant’s ability to perform basic work-related activities, the Secretary means by this © such activities as walking, standing, sitting, lifting, following instructions, and responding appropri- ately to coworkers and supervisors, see 20 C.F.R. § 404.1521(b), and that the term “basic” work- related activities is not used to refer to the claimant’s vocational characteristics. In sum, the court concluded that plaintiffs would likely establish that the severity regulations were in- consistent with the definition of disability enacted by Congress and that the authority of the Secretary thus to interpret the statute did not extend so far. B. The Denial of the Motion to Vacate Some two months after the granting of plaintiffs’ motion for a preliminary injunction, Congress passed 9a the Social Security Disability Benefits Reform Act of 1984 (the “Reform Act’), Pub. L. No. 98-460, 98 Stat. 1794. The Secretary, who had filed notices of appeal from the order granting the preliminary in- junction, withdrew those appeals without prejudice to their reinstatement and moved for an order vacat- ing so much of the preliminary injunction as, inter alia, enjoined use of the severity regulations, on the ground that the Reform Act’s addition of a new sub- paragraph (C) to 42 U.S.C. § 423(d) (2), together with Congress’s failure explicitly to repeal the se- verity regulations, constituted a legislative ratifica- tion of the severity regulations. The new provision relied on reads as follows: In determining whether an individual’s physi- cal or mental impairment or impairments are of a sufficient medical severity that such impair- ment or impairments could be the basis of eligi- bility under this section, the Secretary shail con- sider the combined effect of all of the individual’s impairments without regard to whether any such impairment, if considered separately, would be of such severity. If the Secretary does find a medically severe combination of impairments, the combined impact of the impairments shall be con- sidered throughout the disability determination process. v Pub. L. No. 98-460, § 4(a) (1), 98 Stat. 1800. The court denied the Secretary’s motion, noting evidence that Congress had deliberately declined to express support for the severity regulations and con- cluding that the new provision was intended simply to eliminate the Secretary’s practice of refusing to consider impairments in combination: 10a “The language of the new subsection added by the 1984 Act does no more than require that the Secretary discontinue her policy of refusing to consider the combined effect of non-severe im- pairments. Furthermore, the Conference Com- mittee rejected the language of the Senate Fi- nance Committee Report which expressed some support for the Secretary’s severity policies. While the Conference Committee Report endorses the Secretary’s sequential evaluation process, it does not validate the severity test used by the Secretary.” Decision dated July 22, 1985 (quoting McDonald v. Heckler, 612 F. Supp. 298, 297 (D. Mass. 1985) ). The Secretary appealed from the denial of its motion to vacate and reinstated its prior appeals from the order granting the preliminary injunction. All of the appeals have been consolidated herein. II. DISCUSSION On appeal, the Secretary argues principally that the district court’s grant of preliminary injunctive ‘relief was improper because the severity regulations are fully consistent with the Act and because, in any event, the court should have deferred to the Secre- tary’s longstanding view that medical evidence alone may justify a finding that the claimant is not dis- abled within the meaning of the Act. Whether or not these substantive contentions may prevail on the ultimate decision of the merits of plaintiffs’ claims, we are unpersuaded that the preliminary injunction should be disturbed. The proper standard for appellate review of an order of the district court granting a preliminary in- lla junction is whether or not the order constituted an abuse of judicial discretion. Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32 (1975); Dallas Cowboys Cheer- leaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 206 (2d Cir. 1979). Such an abuse of discretion may take the form of the application of erroneous legal principles, or error in findings of fact, or error in the substance or form of the injunction. E.g., Coca- Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 315 (2d Cir. 1982). We are unpersuaded that the district court abused its discretion in granting pre- liminary injunctive relief. First, we note that the Secretary does not contend that the court erred with respect to any finding of fact, or with respect to the issue of irreparable in- jury, or with respect to the form of the injunction. Her contentions are, rather, that the court failed to give sufficient deference to the Secretary’s interpreta- tion of the Act and adoption of regulations to imple- ment the Act as thus interpreted. We find in these contentions no ground for reversal of the preliminary injunction. It is clear that the court recognized the applicable legal principle that substantial deference must be given to the Secretary’s views. It noted that its task was limited to a determination of whether the Secretary had exceeded her statutory authority and whether the regulations were arbitrary and capri- cious. It thus appears that the court made its deci- sion within the proper legal framework. Nor do we find an abuse of discretion in the court’s comparison of the regulations with the Act in light of the Secretary’s considerable discretion. The con- clusion the court reached as to the likelihood that the two are in conflict does not bespeak any applica- tion of erroneous legal principles. This Court itself 12a has noted the apparent conflict between the statutory janguage and the severity regulations, see Chico v. Schweiker, 710 F.2d at 953, and we have, as the district court noted, twice reserved for another day the question of whether the severity regulations vio- late the Act. Further, we are not persuaded that the legislative history of the Reform Act should have been viewed by the district court as a clear ratification of the severity regulations. As the district court’s opinion noted, there was some support in the Senate Finance Committee’s report for the Secretary’s severity poli- cies. That report stated that the Committee’s pro- posed amendment of the Act, to require the Secretary to consider the combined effect of all of the indi- vidual’s impairments, was not intended to change the existing sequential evaluation process and would “re- quire[] the Secretary to determine first, on a strictly medical basis and without regard to vocational fac- tors, whether the individual’s impairments, con- sidered in combination, are medically severe. If they are not, the claim must be disallowed.” S. Rep. No. 466, 98th Cong., 2d Sess. 22 (1984). There was equally, however an indication that the House of Representatives did not approve of a total disregard of vocational factors at step 2. Thus, the report of the House of Representatives Ways and Means Com- mittee stated as follows: The current “sequential evaluation process” al- lows such a determination [that impairments are slight enough to warrant a presumption that work ability is not seriously affected], and the committee does not wish to eliminate or seri- ously impair use of that process. However, the committee notes that the Secretary has already l3a planned to re-evaluate the current criteria for non-severe impairments, and urges that all due consideration be given to revising those criteria to reflect the real impact of impairments upon the ability to work. H.R. Rep. No. 618, 98th Cong., 2d Sess. 8, reprinted in 1984 U.S. Code Cong. & Ad. News 3038, 3045 (emphasis added). Neither the Senate’s view nor the House of Representatives’ views was incorporated into the Conference Committee’s report. Rather, that report stated as follow: The conferees also believe that in the interests of reasonable administrative flexibility and effi- ciency, a determination that an individual is not disabled may be based on > judgment that an individual has no impairment, or that the medi- cal severity of his impairment or combination of impairments is slight enough to warrant a pre- sumption, even without a full evaluation of voca- tional factors, that the individual’s ability to perform SGA is not seriously affected. The cur- ~ rent “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 nonsevere impairments and expect that the Secretary will report to the Com- mittes on the results of this evaluation. H.R. Conf. Rep. No. 1039, 98th Cong., 2d Sess. 30, reprinted in 1984 U.S. Code Cong. & Ad. News 3080, 3088 (emphasis added). Precisely what was meant by the apparent endorsement of findings of no dis- ability without a “full” evaluation of vocational fac- l4a tors is not clear. The implication would appear to be that the conferees would endorse some consideration of those factors at step 2 of the evaluation process. In any event, in the absence of greater clarity, the district court was hardly required to conclude that the legislative history constituted a definitive ratifica- tion of step 2’s apparently complete disregard of vocational factors. In all the circumstances, we are not prepared to say that the district court was wrong to find that plaintiffs had established a likelihood of success on their claims or that it abused its discretion in grant- ing preliminary injunctive relief. Having thus concluded that the preliminary in- junction should not be overturned, we are nonetheless constrained to note that the Reform Act is not en- tirely without effect in this case. As noted by the district court, the Reform Act’s addition of § 423(d) (2)(C) now expressly requires that the Secretary give consideration to the combined effect of impair- ments that individually may be nonsevere. Several of the plaintiffs in these actions had claimed dis- ability on the basis of a number of impairments that the Secretary refused to consider in combination. The district court noted such denials as to three of the four named plaintiffs in the Dixon action; the particulars of the claims of the plaintiffs in the other actions were not discussed. The import of the Reform Act thus may well be that the evaluation of the claims of most of the class representatives will be extended beyond step 2 of the sequential evaluation process because of the severity of their impairments viewed in combination, without regard to the validity vel non of step 2 of the severity regulations. The Secretary does not appear to have 15a moved for reconsideration of the preliminary injunc- tion on this basis, however, and we thus decline to overturn the injunction on this basis. We do note, however, that, given the prudential concern for ad- judicating challenges to agency determinations with- out unnecessarily reaching such global questions as the validity of promulgated regulations, this aspect of the Refcrm Act may well have implications for the eventual determination of the case on its merits, for the relief ultimately to be granted, for the defini- tion of the class of plaintiffs attacking the severity regulations, and for the appropriateness of the pres- ent named plaintiffs to represent the certified class. None of these questions, however, is now before this Court. CONCLUSION The orders of the district court granting and refusing to vacate the preliminary injunction are affirmed. l6a APPENDIX B UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse in the City of New York, on the seventh day of March one thousand nine hundred and eighty-six. Docket Nos. 84-6288, -6302, -6304, -6306 Davip Dixon, R:cARDO RAMIREZ, OPHELIA CASEY, DOMINGA CARRASQUILLO, JOANNE LOCKETT, Ev- LALIA TEREZ, CARMEN FELICIANO, and TOMASINA GONZALEZ, Individually and on Behalf of All Others Similarly Situated, PLAINTIFFS-APPELLEES —and— THE STATE OF NEW YORK and CESAR PERALES, as Commissioner of the New York State Department of Social Services, PLAINTIFFS-INTERVENORS, APPEL- LEES Vv. MARGARET M. HECKLER, as Secretary of the Department of Health and Human Services, DEFENDANT-APPELLANT APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK Le ee erate l7a [Filed Mar. 7, 1986] MANDATE Present: HON. JAMES L. OAKES, HON. AMALYA L. KEARSE, HON. LAWRENCE W. PIERCE, Circuit Judges, This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel. ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the orders be and they hereby are affirmed in accordance with the opinion of this court with costs to be taxed against the appellant. Elaine B. Goldsmith Clerk /8/ Edward J. Guardaro EDWARD J. GUARDARO Deputy Clerk 18a APPENDIX C UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK No. 83 Civ. 7001 (MEL) DAVID DIXON, RICARDO RAMIREZ, OPHELIA CASEY, DOMINGA CARRASQUILLO, JOANNE LOCKETT, indi- vidually and on behalf of all others similarly situ- ated, PLAINTIFF ‘ MARGARET M. HECKLER, as Secretary of the Department of Health and Human Services, DEFENDANT No. 83 Civ. 8264 (MEL) EULALIA TEREZ, individually and on behalf of all others similarly situated, PLAINTIFF Vv. MARGARET M. HECKLER, as Secretary of the Department of Health and Human Services, DEFENDANT No. 83 Civ. 8609 (MEL) CARMEN FELICIANO, individually and on behalf of all others similarly situated, PLAINTIFF Vv. MARGARET M. HECKLER, as Secretary of the Department of Health and Human Services, DEFENDANT 19a No. 84 Civ. 110 (MEL) TOMASINA GONZALEZ, PLAINTIFF Vv. MARGARET M. HECKLER, as Secretary of the Department of Health and Human Services, DEFENDANT June 22, 1984 LASKER, District Judge. L These cases present a question whose determina- tion has twice been reserved by the Court of Ap- peals for this Circuit:* whether the denial of fed- eral disability claims under the so-called “severity regulation” adopted by the Secretary of Health and Human Services (the “Secretary”) violates the So- cial Security Act (the “Act’’) because the regulation conflicts with the definition of “disability” contained in the Act. Under the regulation,’ claims for dis- ability benefits under the Supplemental Security In- come (“SSI”) or Old Age Survivors and Disability Insurance (“OASDI”’) programs are denied without regard to the claimant’s age, education, employment experience, ability to return to prior work, or other 1 Keith v. Heckler, 732 F.2d 1089 at 1093-1094 (2d Cir. 1984) ; Chico v. Schweiker, 710 F.2d 947, 952-58 (2d Cir. 1983). 220 C.F.R. §§ 404.1520(c), 416.920(c) (1983). 20a vocational factors, if the claimant’s impairment is judged to be “not severe” based on medical criteria alone. In recent weeks, two judges of this Court, ruling on individual Social Security appeals, have re- versed the Secretary’s denial of benefits under the severity regulation, holding that the severity regula- tion conflicts with the statutory definition of disabil- ity and is invalid.* In the instant cases, the individ- ual plaintiffs, on behalf of themselves and all other similarly situated, together with the State of New York and the Commissioner of the New York State Department of Social Services, seek declaratory and injunctive relief against the Secretary’s use of the severity regulation in valuating disability claims, and against her policy of refusing to consider the com- bined effects of impairments found to be “non- severe.”’ * Jurisdiction is alleged under 42 U.S.C. §§ 405(g) and 13888(c) (3), which provide for judicial review of the Secretary’s decisions as to disability benefits; 28 U.S.C. § 1831 (federal question jurisdiction), and 3 Glover v. Heckler, 588 F.Supp. 956 (S.D.N.Y. 1984); Boiano v. Heckler, 586 F.Supp. 782 (S.D.N.Y. 1984). The regulation was also held invalid in a decision in the Eastern District of California which granted class certification and preliminary injunction motions. Smith v. Heckler, Civ. No. 8-83-1609, slip op., (E.D. Cal., June 6, 1984). The opinion was brought to our attention immediately prior to the issu- ance of this memorandum. * Plaintiffs also contend that the Secretary adopted the severity regulation without prior notice and opportunity for public comment, as required by the Administrative Procedure Act (“APA”), 5 U.S.C. § 553 and that the Secretary’s failure to establish ascertainable standards for determining whether an impairment is “severe” violates their constitutional right to due process. 21a 28 U.S.C. § 1361 (mandamus jurisdiction).* This memorandum addresses plaintiffs’ motion for class certification and for a preliminary injunction. In a separate memorandum issued this date, motions to intervene by the State of New York, the Commis- sioner of the New York State Department of Social Services, and claimants Ricardo Ramirez, Ophelia Casey, Dominga Carrasquillo, and Joanne Lockeit have been granted. A. Statutory and Regulatory Background The OASDI and SSI programs provide for the pay- ment of benefits to disabled persons. Under both programs, a person is considered disabled if he or she is unable “to engage in any substantial gainful activity by reason of any medically determinable physi- cal or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months...” ° The Act provides that “for purposes of” Ride this definition, an individual “shall be determined to be under a disability only if his physical or mental impairment or impair- ments are of such severity that he is not only unable to do his previous work but cannot, con- sidering his age, education, and work experience, 5In view of our conclusions in this decision as to the existence of jurisdiction under section 405 (g) and 1383 (c) (3), we need not address the parties’ arguments as to the other sources of jurisdiction asserted by plaintiffs. *42 U.S.C. §§ 423(d) (1) (A) & 1882c(a) (3) (A). 22a engage in any other kind of substantial gainful work which exists in the national economy, re- gardless of whether such work exists in the im- mediate 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... .”* The Secretary is authorized to establish rules and regulations, consistent with the Act, governing the determination of disability claims.* Before 1978, the Secretary’s regulations ° set forth a general discussion of the factors to be applied in evaluating disability claims. In pertinent part, it was stated that disability “is determined from all the facts of [the] case. Primary consideration is given to the severity of the individual’s impairment. Consideration is also given to such other factors as the individ- ual’s age, education, and work experience. Medi- cal considerations alone can justify a finding that the individual is not under a disability where the only impairment is a slight neurosis, slight im- pairment of sight or hearing, or other slight ab- normality or a combination of slight abnormal- ities. On the other hand, medical considerations alone . . . can, except where other evidence rebuts a finding of ‘disability’ . . . justify a finding that the individual is under a disability where his im- 742 U.S.C. §§ 423(d) (2) (A) & 1882c(a) (3) (B). 8 42 U:S.C. 8§ 405 (a) & 1383 (d) (1). ® This opinion uses the word “Secretary” to refer both to the current Secretary and her predecessors, as the context may require. 23a pairment .. . is listed in the appendix to the subpart. ...” *° In 1978 the Secretary revised the regulations, es- tablishing a five-step sequential procedure for deter- mining whether a claimant is disabled.” These reg- ulations were modified again in 1980, primarily to make their language clearer. Under the existing regulations, if the claimant is found not to be disabled under any one of the sequen- tial tests, the analysis ends and the remaining steps of the analysis are not completed. As the first step, the Secretary ascertains whether the claimant is working; if so, a finding of “not disabled” follows. Next (step 2), the Secretary determines, solely on the basis of medical factors, whether the claimant has a “severe” impairment which “significantly lim- its [his] physical or mental ability to do basic work activities.” The regulation specifically provides that at this step the Secretary “will not consider your age, education, and work experience.” ” If the claimant 10 20 C.F.R. § 404.1520(a) (1968). 1120 C.F.R. §§ 404.1520, 416.920 (1983). 1220 C.F.R. §§ 404.1520(c), 416.920(c) (1983). The regu- lation defines “basic work activities to include: “(1) Physical functions such as walking, standing sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) Capacities for seeing, hearing, and speaking; (3) Understanding, carrying out, and remembering simple instructions ; (4) Use of judgment. (5) Responding appropriately to supervision, co- workers and usual work situations; and ~(6) Dealing with changes in a routine work setting.” § 404.1521 (b) ; 416.921 (b). 24a is determined to have a “severe” impairment under this definition, the Secretary next considers (step 3) whether the impairment is one which is listed in Appendix 1 of the regulations; if so, the claimant is found to be disabled without requirement of fur- ther proof that the impairment prevents him from working. The fourth step comes into play if the claimant’s impairment, though deemed “severe” un- der step 2, is not a “listed” impairment under step 3. In such cases, the Secretary determines whether, de- spite the claimant’s impairment, he is able to per- form his past work. If not, the Secretary determines (step 5) whether, considering the claimant’s age, ed- ucation, and work experience, his impairment pre- vents him from doing any other work available in the national economy. If the claimant cannot, he is found to be disabled.** In addition to these regulations, the Secretary issued a Social Security Ruling in 1982 (SSR 82-55) which instructs Social Security admin- istrators not to consider the combined effects of im- pairments which do not individually meet the Secre- tary’s “severity” standard. Accordingly, someone who suffers several impairments deemed nonsevere will be denied benefits regardless of their combined ef- fect. SSR 82-55 also lists 20 specific impairments which the Secretary has determined are non-severe per se. Moreover, the ruling is binding on all Social . Security Administration personnel, including admin- istrative law judges and the Appeals Council, and was made effective retroactively to August 20, 1980. 13 See generally Chico v. Schweiker, 710 F.2d 947 (2d Cir. 1983). 25a B. The named plaintiffs were found “not disabled” under the severity regulation (the second step of the Secretary’s sequential evaluation), and thus were denied benefits on the grounds that the medical evi- dence alone failed to establish the existence of an im- pairment which significantly limited their ability to perform basic work activities. A description of the cases of some of the named plaintiffs illustrates the operation of the Secretary’s policies. David Dixon suffers pain in his right hip from a serious fracture which he sustained in an automobile accident in 1969, and attends the Harlem Rehabilita- tion Center as an outpaient for six hours a day, five days a week. He is blind in one eye, (also as a result of the automobile accident) suffers from a per- sonality disorder, and has a verbal I.Q. at 68. The Administrative Law Judge (“ALJ”) found each of Dixon’s impairments to be non-severe under the sec- ond step of the five-step disability analysis. As to the hip fracture, The ALJ found that if Dixon under- went “intensive therapy” he would “possibly enhance [sic] his current disability.”” Dixon’s blindness in one eye was found not to be a severe impairment because he retained essentially normal sight in his other eye. As to Digon’s mental capacity and psychological prob- lems, the ALJ stated that there was “a good possi- bility” that these problems would not prevent Dixon from working if he obtained “retraining and some program to help [him] with his motivation.” Because the ALJ considered each impairment not to be severe based on the medical evidence, he did not consider (and, under the regulation, was not free to con- sider) whether Dixon was able to return to his last job (which had ended in 1974), or whether in view 26a of Dixon’s impairments and his age, education, and work experience, he was capable of performing any job in the national economy. There is no indication that the ALJ considered the combined effect of Dix- on’s impairments. The Appeals Council affirmed.” Joanne Lockett worked as an operator and super- visor for the telephone company for twenty years, un- til she suffered an acute onset of brain stem syndrome in October 1981. She has suffered, as the ALJ found, “severe neurological and psychological impairments” as a result, manifested in particular by substantial difficulty with memory. The ALJ found that Lockett was unable to return to her prior job, and that she was disabled from October 1981 to December 1982. However, he decided that she was no longer disabled as of December 1982 because at that time she began participating in a sheltered workshop at the Federa- tion for the Handicapped. In the ALJ’s view, this participation meant that “her condition was no longer severe, in that it no longer significantly limited her ability to engage in basic work activities or work related functions, in terms of an ordinary work day on a regular and continuing day-to-day basic [sic] in the com- petitive job market.” He held that, in view of this finding as to non-severity for the period beginning in December 1982, “it is not material whether the claimant was then able to sus- tain any of her past relevant work or any other work which exists in significant numbers in the national economy.” ** Her administrative appeal is pending. 4 See Transcript of Proceedings, pp. 3, 7-16. *° See Hearing Decision, Exhibit C to Affidavit of Nancy Morawetz, dated January 26, 1984 (“Morawetz Affidavit”). 27a Dominga Carrasquillo’s impairments of hyperten- sion, arthritis, chest pain, and pain in her lower ex- tremities were all found to be non-severe in a very brief decision by the ALJ who presided at her hear- ing. Her impairments were not considered in com- bination. Carrasquillo was 59 years old at the time of her hearing, has a third grade education, is illit- erate in English, and last worked in 1975 as a but- tonhole maker in a factory. None of these factors was considered, however, because the ALJ found that her impairments did not meet the “severity” thresh- old on the basis of medical evidence alone.** Carra- squillo’s administrative appeal is pending. Ricardo Ramirez has suffered injuries to his back in two separate accidents, one in 1961 and one in 1979, and, as the ALJ found, “has a chronic lower back pain syndrome with degenerative changes at L5-S1 levels.” His bending and straight leg lifting are limited to 30 and 20 degrees, respectively. Ra- mirez is also completely bind in his right eye. The ALJ found that Ramirez’ impairmerts did not meet the severity requirement. Accordingly, the ALJ failed to perform any vocational analysis, noting specifically that under the regulations “medical considerations alone can justify a find- ing that an individual is not under a disability where the medically determinable impairment is not severe without consideration of the voca- tional factors.” The ALJ did not consider the combined effect of Ramirez’ impairments. Ramirez was 54 years old 16 See Hearing Decision, ex. D. to Morawetz Affidavit. 28a at the time of the hearing, with a high school educa- tion, and has not worked since his last accident.” The Appeals Council affirmed. II. Motion for Preliminary Injunction A. Preliminary relief is sought by those members of the proposed class whose benefits were terminated pursuant to the policies challenged in this action on or since July 20, 1983, at any stage of the adminis- trative process, or who had challenges to such deci- sions pending on July 20, 1983. Because the com- plaint was filed on September 23, 1983, these class members all meet the Act’s statute of limitations re- quiring that actions for judicial review of the Secre- tary’s decision be filed within 60 days of the date of the decision.“ However, the sub-class seeking pre- liminary relief includes claimants whose appeals be- fore the Appeals Council were still pending and who therefore have not yet exhausted administrative rem- edies. Accordingly, we must consider the Secretary’s argument that the Court is without jurisdiction over those claimants who have not yet exhausted their ad- ministrative remedies as required by Section 405(g). As is often noted, the requirement of exhaustion of administrative remedies has a “waivable” and a “non- waivable” element. The non-waivable element re- quires that a plaintiff present his claim in some form 17 See Hearing Decision, Ex. I to Morawetz Affidavit. % 42 U.S.C. §§ 405(g), 1883(c). The class actually in- cludes claimants who received final decisions within 65 days of the filing of the complaint, because the regulation assumes that the decision is received within 5 days of its mailing. to the Secretary. Full exhaustion of administrative remedies is, however, a “waivable” element. Math- ews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed. 2d 18 (1976). The non-waivable requirement has been satisfied here. Ali of the plaintiffs who move for preliminary relief have presented their claims, which have, in all cases, either been denied or termi- nated at some level of the administrative process. The Secretary’s argument is directed to the requirement of full exhaustion, which may be waived by a court under certain circumstances: “A waiver of the exhaustion requirement may be inferred where the plaintiffs’ legal claims are collateral to their demand for benefits, where ex- haustion would be a pro forma or futile gesture, or where the harm suffered in the interim would be irreparable in the sense that no post hoc re- lief would be adequate.” Smith v. Scieweiker, 709 F.2d.777, 780 (2d Cir. 1983), citing Mathews v. Eldridge, 424 U.S. at 330- 31, 96 S.Ct. at 895-896. The Secretary contends that, under the analysis employe in Smith, plaintiffs do not satisfy the col- laterality and futility grounds for waiver of exhaus- tion.” Even if the Secretary were correct as to those 1 Smith held that a class-action challenge to the Secretary’s practice of terminating disability benefits without a finding of medical improvement did not raise an issue which was collateral to plaintiffs’ demand for benefits, since the plain- tiffs there were not “asserting a right to a particular kind of procedure” (as was true in Eldridge) but were claiming “only that, depending on the evidence adduced, an illegal termination of their benefits may result from the application of the Secre- 304 grounds, however, we believe that waiver of exhaus- tion is appropriate because plaintiffs have demon- strated that they will suffer irreparable harm for which post hoc relief would be inadequate. Unlike the Smith plaintiffs, who were all receiving disability benefits at the time of the lawsuit, none of the named plaintiffs in this case are receiving benefits. As their affidavits demonstrate, without benefits their respec- tive financial situations are precarious. Moreover, neither the ALJs nor the Appeals Council, of course, have the authority to declare the Secretary’s severity standard unlawful, but instead are required te apply that standard (along with SSR 82-55) to each claim. In such circumstances, to re- quire plaintiffs to pursue a process which will be guided by a procedure they claim is illegal, and which has already resulted in an initial denial of benefits, on the possibility that the claim will ultimately be disposed of on some other basis, is unwarranted, par- ticularly since the legal issue raised here is not one which is likely to “benefit from further factual de- velopment and refinement through the administrative process.” Heckler v. Lopez, —— U.S. ——, 104 S.Ct. 10, 15, 77 L.Ed.2d 1431 (1983) (Rehnquist, J.) application to vacate stay denied, —— U.S. ——, 104 S.Ct. 221, 78 L.Ed.2d 217 (1983) ; cf. Smith, supra, 709 F.2d at 780-81 (legal issue raised by plaintiffs tary’s test for current disability.” Smith v. Schweiker, 709 F.2d at 780. Smith also held that exhaustion could not be deemed futile because the plaintiffs’ claims for benefits might be denied or granted on other grounds at other stages of the administrative process. The decision noted that the benefits of every named plaintiff and intervenor had actually been restored as a result of the administrative appeal process. /d. Bla was “unformulated” and was not presented “in the context of a concrete case’’) .” B. Standard for Preliminary Relief Plaintiffs seek a preliminary injunction (1) prohibiting the Secretary from denying or terminating Social Security or SSI benefits due to the asserted non-severity of the claimant’s im- pairments; (2) directing the Secretary to restore benefits to all members of the proposed class who (a) received decisions, finding them no longer eligible for benefits that were rendered at any stage of the administrative process, on July 20, 1983 or thereafter, or (b) had pending challenges to such decisions on July 20, 1983; and (3) di- recting the Secretary to reopen the applications of all class members whose applications for bene- fits have been denied by the Secretary, at any stage of the administrative process, since July 20, 1983, and to redetermine these applications without reference to the threshold severity test. To obtain such relief, a plaintiff must ordinarily dem- onstrate irreparable harm, and either a likelihood of success on the merits or the existence of a fair ground for litigation, with the balance of hardships decidedly in his favor. Jackson Dairy, Inc. v. H.P. Hood & The facts of this case are also clearly distinguishable from those in Heckler v. Ringer, -—— U.S. ——, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984), where waiver of exhaustion was denied in part because individuals asserting claims similar to those presented by the Ringer plaintiffs were rovtinely receiving favorable decisions from the ALJs. Jd. —— U.S. at ——, 104 §.Ct. at 2023. Here, plaintiffs have all received unfavorable ALJ decisions. 32a Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam). The Secretary, however, argues that on this mo- tion the plaintiffs must show a likelihood of success (not merely a fair ground for litigation) because the issuance of an injunction will burden the Social Secu- rity Administration and cause harm to the public in- terest. The Secretary relies, inter alia, upon Union Carbide Agricultural Products v. Costle, 632 F.2d 1014, 1018 (2d Cir.1980), cert denied, 450 U.S. 996, 101 S.Ct. 1698, 68 L.Ed.2d 196 (1981), which states “When Congress authorizes or mandates govern- mental action that is in the public interest, more than a ‘fair ground for litigation’ must be shown before the action will be stopped in its tracks by court order.” _ Plaintiffs argue, however, that Congress has not au- thorized the use of a severity standard in isolation from vocational factors, and that it is in the public interest that the disability program be administered as Congress intended. We believe in litigation such as this no party has an exclusive claim of the public interest, and accordingly we doubt the appropriate- ness of applying the doctrine of Union Carbide. In any event, the question is not dispositive, because, as discussed below, we conclude that plaintiffs have in fact established a likelihood of success on the merits. C. The Severity Regulation As noted previously, the question of the lawfulness of the Secretary’s severity regulation has been spe- cifically reserved by the Second Circuit on at least two occasions. See Keith v. Heckler, 732 F.2d 1089 at 1093-94 (2d Cir.1%84); Chico v. Schweiker, 710 33a F.2d 947 (2d Cir.1983). In Chico, Judge Friendly noted “the close question of the validity of the ‘sever- ity” regulation, involving as it does a seeming conflict between the letter of § 423(d) (2) (A), on the one hand, and, on the other, the Secre- tary’s understandable desire to supply . . . some threshold that a claimant must pass before the Social Security Administration is required either to apply the Appendix 2 guidelines or to call vocational experts, and the Supreme Court’s rec- ognition, reaffirmed in its recent decision in [Heckler v.] Campbell, that Congress has ‘con- ferred on the Secretary exceptionally broad au- thority to prescribe standards for applying cer- tain sections of the [Social Security] Act,’ Schweiker v. Gray Panthers, 453 U.S. 34, 48 [101 S.Ct. 2633, 2640, 69 L.Ed.2d 460] (1981).” 710 F.2d at 953. In view of the Secretary’s authority to establish regulations implementing the disability provisions of the Act, our review “is limited to determining whether the regulations promulgated exceeded the Secretary’s statutory authority and whether they are arbitrary and capricious.” Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). The starting point for this analysis, as Chico points out, is the language of the statutory definition of “dis- ability”. A “disability” is a “physical or mental impairment or impairments . . of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education and work experi- 34a ence, engage in eny kind of substantial gainful work which exists in the national economy.” $§ 423 (d) (2) (A), 1882¢(a) (3) (B). In “implementing” this definition, the Secretary has separated the inquiry as to the severity of the im- pairment from the inquiry as to the combined effect of a claimant’s impairments and his age, education, and work experience on his ability to engage in sub- stantial gainful work. As the severity regulation states, the claimant must first establish, based on medical factors alone, that his impairment is severe —that is, that it significantly limits his ability to perform “basic work-related activities”—and at this stage of the analysis the SSA “will not consider your age, education, and work experience.” The plaintiffs argue that this requirement is flatly inconsistent with the statutory definition, which, they contend, requires that the severity of an impairment be evaluated in terms of the combined effect of the impairment and the claimant’s age, education and work experience. The Secretary argues that the statute should be read to establish three independent requirements—that a claimant have a severe impairment, that he be un- able to return to his prior employment, and that his impairment prevent him, in light of his age, educa- tion, and work experience, from performing any other substantial work. In our view, the Secretary’s interpretation, which at first glance may appear merely to have arranged the factors mentioned in the statute in an orderly fashion, has resulted instead in a substantive rewrit- ing of the statute. The statute speaks of an impair- ment (or impairments) which is “of such severity that” the claimant cannot, “considering his age, edu- 35a cation and work experience,” perform any substantial gainful work. Under the severity regulation, by con- trast, the Secretary had found that plaintiffs do not have severe impairments, and therefore are not dis- abled, without considering whether their impair- ments, in light of their age, education, and work ex- perience, permit them to perform gainful work. This result is simply contrary to the statutory definition. The Secretary argues, however, that it is clearly within her authority to establish a threshold of med- ical severity which a claimant must demonstrate be- fore the Secretary is required to carry out a full vocational analysis of the claimant and of his ability to obtain a job available in the national economy. The Secretary points out that such a threshold showing was required in the prior regulations, under which a claim could be denied on medical grounds alone if the claimant had only a “slight” impairment, defined as a “slight neurosis, slight impairment of sight or hearing, or other slight abnormality or a combination of slight abnormalities.”** According to the Secre- tary, the 1978 regulations were not intended to effect a substantive change in the level of severity that must be shown before vocational factors will be con- sidered, but rather to clarify the circumstances under which a finding of not disabled could be justified on the basis of medical considerations alone. As the Sec- retary stated in 1978 in the commentary accompany- ing the proposed regulations: “there is a point in the range of impairment severity below which the effects of the impair- ment(s) have such a minimal effect on the indi- vidual that they would not be expected to inter- fere with his or her ability to work, irrespective 21 20 C.F.R. § 404.1520(a) (1968). 36a of his or her age, education, and work experi- ence.” # The Secretary contends that the screening out of claims in which the impairment is plainly de mini- mis is a long-standing SSA practice which is neces- sary to the efficient running of the SSI and OASDI programs. There are several flaws in these arguments. First, although the Secretary’s 1978 commentary on the severity regulation appears to describe what might be considered a de minimis standard for screening out unfounded claims, the regulation itself does not use the Secretary’s language. The regulation does not describe non-severe impairments as ones which “have such a minimal effect . . . 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.” Instead, the severity regulation states: “(c) You must have a severe impairment. If you do not have any impairment(s) which sig- nificantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, there- fore, not disabled. We will not consider your age, education and work experience. .. .” * The named plaintiffs’ cases illustrate that this reg- ulation constitutes much more than a de minimis standard. Plaintiff Dixon, for example, who is com- pletely without sight in one eye, has a personality 22 43 Fed.Reg. 9284, 9296 (1978). 320 C.F.R. §§ 404.1520(c), 416.920(c) (1983). 37a disorder and a verbal I.Q. of 68, and requires reha- bilitation therapy five days a week, can hardly be said to have impairments of such a de minimis nature that they would not be expected to interfere with any- one’s ability to work irrespective of vocational fac- tors. Indeed, in our view none of the named plaintiffs in this action have impairments which could be con- sidered to be of the de minimis nature described by the Secretary, or which could be viewed as fitting the pre-1978 definition of a “slight” impairment. Even if the Secretary may be assumed to have authority to screen out claims in which the impairment is clearly de minimis, the severity regulation as written and as applied does not appear to be such a standard. Second, the available statistics on the numbers of claims denied on the basis of the severity regulation strongly suggest that the regulation’s adoption repre- sented not merely a fine-tuning of previous methods of determining disability, but instead constituted a substantial change in the administration of the ben- efits system. In 1975, when the “slight impairment” regulation was in effect, only 8 percent of disability claims were denied based on medical grounds alone— i.e., on the ground that the claimant suffered from only a “slight” impairment. As of 1982, the per- centage of claims denied on the basis of medical con- siderations alone under the severity regulation adopted in 1978 had climbed to 40 percent.* Al- though of course we cannot rule out the possibility that other factors apart from the change in the sever- ity regulation may have contributed to this increase, 24 See Background Material and Data on Major Programs Within the Jurisdiction of the Committee on Ways and Means, W.M.C.P. 98-2, Committee on Ways & Means, United States House of Representatives, 98th Cong., Ist Sess. at 79 (1983). 38a it would be absurd to assume that the change in the regulations has not played a substantial part in it. Third, the Secretary’s own 1980 statement explain- ing the intent of the 1978 amendments belies her cur- rent contention that the severity regulation was not intended to raise the level of severity which a claiin- ant must show before vocational factors will be con- sidered. As discussed earlier, the 1978 regulations were slightly modified in 1980, primarily to make theid language more understandable to claimants. In publishing these modifications, the Secretary com- mented on the severity regulation as follows: “Although this evaluation approach to impair- ments that are not severe has been in the regula- tions 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 neces- sary to follow the vocational evaluation sequence. 9? 25 Aithough the Secretary now argues that this state- ment does not reflect an intent to limit entitlement to benefits by the adoption of the 1978 regulations, there can be no blinking the Secretary’s 1980 state- ment that the regulation was intended to “limit[] the number of cases” in which vocational factors would be considered—something which, it would ap- pear, can only be accomplished by increasing the num- ber of cases decided on medical grounds alone. Moreover, the severity regulation cannot be per- suasively defended by arguing that the denial of sub- stantial numbers of claims on medical grounds alone *° 45 Fed.Reg. 55574 (1980). 39a is merely the flip side of the Secretary’s policy of granting claims on medical grounds alone where the claimant’s impairment is among those listed in Ap- pendix 1 of the regulations.** If the Secretary be- lieves that it is operationally more efficient to con- cede, in effect, that certain impairments are per se disabling, than to conduct vocational evaluations for claimants with such impairments, such a decision is within her discretion, if only because no one would have standing to challenge it.” It is quite another thing to deny disability claims without consideration of the individual’s vocational characteristics or his ability to return to his past work, when the statute defines disability so as to require consideration of such factors. The Secretary cannot point to a prac- tice which is judicially unreviewable to prove the validity of a practice which is reviewable. The Secretary further argues that the validity of the severity regulation is supported by the legisla- tive history accompanying the 1967 enactment of the statute’s current definition of disability. The Secre- tary argues that the 1967 revisions were prompted by Congress’ desire to make medical considerations paramount in disability determinations, and that the severity regulation carries out this intent by requir- ing an initial evaluation of severity to be based solely on the medical evidence. This argument, however, 26 See 20 C.F.R. §§ 404.1520(d), 416.920(d). 27Of course, Congress can correct administrative rule- making which it may consider more “generous” than the statute warrants by revising the underlying statute; how- ever, since the disability benefits system is (theoretically, at least) not an adversary process, no one has standing to chal- lenge a grant of benefits by the Secretary in an individual case. 40a rests on an incomplete picture of Congress’ purpose in enacting the 1967 legislation. Although the 1967 amendments were clearly intended to limit the stat- ute’s definition of disability, the House and Senate reports indicate that Congress was primarily con- cerned with matters other than the questions pre- sented by this action. Congress was reacting in par- ticular to judicial decisions which had interpreted the statute to permit benefits to be awarded to people who were actually working.* The amendments were also intended to overrule decisions which, had held that a claimant’s disability or non-disability had to be evaluated in terms of the actual jobs available within a narrow geographic area, rather than in terms of jobs generally available within the national economy. In addition, the amendments expressly required that claims of disability be supported by objective medical findings, rather than solely on a subjective claim of disability.” The item of legislative history upon which the Sec- retary primarily relies as supporting her severity regulation is a passage from the report of the Sen- ate Committee on Finance, which stated that the amendments “would provide that such an individual would be disabled only if it is shown that he has a severe medically determinabie physical or men- tal impairment or impairments; that if, despite his impairment or impairments, an individual still can do his previous work, he is not under a disability; and that if, considering the severity 8 See S.Rep. No. 744, 90th Cong., Ist Sess. at 48 (1967), reprinted in 1967 U.S.Code Cong. & Ad. News, 2834, 2882. 9 Td. at 2882-83. 4la of his impairment together with his age, educa- tion, and experience, he has the ability to en- gage in some other type of substantial gainful work that exists ia the national economy even though he can no longer do his previous work, he also is not under a disability ....”™ The Secretary contends that this passage reflects the Committee’s view that, under the new definition of disability, the claimant’s ability to perform previous work and his age, education, and work experience would be considered only if the impairment is first found to be severe. The problem with this argument is that Congress simply did not write the statute that way. The stat- ute expressly defines severity in terms of the effect of an impairment on the claimant’s abiliy to per- form his prior work or other work available in the national economy, in light of the claimant’s age, edu- cation and work experience. In any event, the pas- sage relied upon by the Secretary is somewhat am- biguous; it can be read simply as an explanation of the overall circumstances under which a finding of disability or non-c sability 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. Furthermore, the Secretary’s discussion of Con- gress’ intent ignores the fact that when Congress decided, in another part of the statute, to permit the denial of benefits for certain claimants based on the level of severity alone without individualized consid- eration of vocational characteristics, Congress unam- % Id. at 2882. ai 42a biguously expressed that intent. The definition of dis- ability for widows’ and widowers’ benefits reads: “A widow, surviving divorced wife, or widower shall not be determined to be under a disability (for purposes of section 402(¢) or (f) of this title) unless his or her physical or mental im- pairment or impairments are of a level of sev- erity which under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful ac- tivity.” 42 U.S.C. § 423(d)(2)(B). The contrast between this definition and that of section 423(d)(2)(A) (ap- plicable to insured workers) provides strong support for plaintiffs’ argument that Congress intended the latter group of claimants to be evaluated in terms of the combined effect of the severity of their impair- ments and their individual vocational characteristics. Finally, it must be noted that the severity regula- tion is in conflict with longstanding judicial inter- pretations of the burden of proof which claimants must satisfy in order to establish a prima facie case of disability. Under these precedents, which the Sec- retary does not challenge, “[a] prima facie case of disability is established when the claimant shows that he is unable tc perform his past employment because of his impairments. Dwmas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983). The burden then shifts %1 Accord, Dousewicz v. Harris, 646 F.2d 771, 772 (2d Cir. 1981) ; Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). These burden-of-proof rules are applied in other circuits as well. See, e.g., Hall v. Secretary of HEW, 602 F.2d 1372, 1375 (9th Cir. 1979) ; Hephner v. Mathews, 574 F.2d 359, 361- 62 (6th Cir. 1978) ; Small v. Califano, 565 F.2d 797, 800 (ist Cir. 1977). 43a to the Secretary to prove the existence of other sub- stantial gainful work in the national economy which the claimant is capable of performing. /d. Under the severity regulation, however, the Secre- tary simply disregards proof that the claimant can- not perform his prior work, if the claimant cannot first satisfy the severity test based on medical con- siderations alone. In plaintiff Joanne Lockett’s case, for example, it is undisputed that she is unable to return to her prior work as a telephone company op- erator and supervisor because of the deterioration of her mental functions and capabilities. Nonetheless, the ALJ did not conduct a vocational analysis to de- termine whether she can perform other substantial gainful work, because he found that her impairment did not significantly limit her ability to perform basic work-related activities and therefore was not severe.” Indeed, it is not uncommon to see reported decisions in which the ALJ has carried out the full sequential evaluation, including the vocational analysis, and has found the claimant disabled, but the Appeals Council has nevertheless reversed on the basis that the elaim- ant’s impairment is not “severe.” The Secretary does not argue that this Circuit’s precedents regard- %2 It must be emphasized that although the severity regula- tion speaks of the claimant’s ability to perform basic work- related activities, the Secretary does not consider the indi- vidual’s particular vocational characteristics in making the severity assessment. Rather, the Secretary evaluates the medical evidence to determine whether the claimant’s impair- ment imposes a significant limitation on his ability to perform activities such as walking, standing, sitting, lifting, following instructions, relating to co-workers and supervisors, etc. See 20 C.F.R. 404.1521 (b). %3 F.g., Trafton v. Heckler, 575 F.Supp. 742 (D.Me. 1983) ; Scruggs v. Schweiker, 559 F.Supp. 100 (MD.Tenn. 1982). 44a ing the allocation of the burden of proof are incor- rect, but neither does she suggest how they can be reconciled with the severity regulation. For all of the reasons discussed above—the conflict between the severity regulation and the plain lan- guage of the Act’s definition of disability; the clear evidence that the regulation is not being applied as a de minimis standard as the Secretary claims; the fact that Congress expressly excluded consideration of vo- cational factors for widows’ and widowers’ benefits, but expressly included such factors in the statutory definition at issue here; and the inconsistency of the regulation with long-standing burden-of-proof rules, which Congress has never attempted to alter—we con- clude that plaintiffs have established a probability of success on the merits as to their claim that the Sec- retary exceeded her statutory authority in establish- ing the severity regulation.” We also note that plaintiffs, in addition to this showing, have submitted further evidence in the form of an affidavit by Marvin S. Lachman, Chief Social Services Disability Analyst in the Office of Disability Determinations (“ODD”), to support. the contention that the Secretary, through internal administrative actions beginning in 1976, deliberately altered the substantive standards governing the c’*umstances *% Plaintiffs also contend that the severity regulation is un- lawful because the Secretary violated the notice-and-comment procedures of the Administrative Procedure Act, 5 U.S.C. § 553, by failing to inform the public that the rule represented a major change in the substantive standards t, = ich dis- ability claims would be evaluated. In view of our venciusion that plaintiffs have demonstrated a probability of success on the other grounds set forth above, we need not address this claim at this time. We also need not address the constitutional issues raised by plaintiffs. 45a under which claims could be denied on medical grounds alone, long before the new regulations were publicly proposed and adopted, and indeed without having admitted to this day that the 1978 regulations represented a change in policy. We do not rely on this evidence, because the points previously discussed establish the likelihood of plaintiffs’ success on the merits, and the Lachman affidavit raises issues that may require further factual development.* Nonthe- less, it is worth noting that the affidavit presents strong evidence that the Secretary deliberately imple- mented a policy of requiring states (which bear the initial burden of making disability determinations) to reject greater and greater numbers of claims on medical grounds alone,” while simply refusing to ac- knowledge, either in 1976 when the policy emerged, in 1978 when the severity regulation was actually adopted through publie rule-making, or at any time thereafter, that a policy change had taken place.” * It is appropriate to note, however, that the affidavit sub- mitted on behalf of the Secretary by Jean Hall Hinckley, Acting Deputy Associate Commissioner for Disability, pre- sents little to counter the assertions of the Lachman afiidavit. Although the Secretary was given, over plaintiffs’ strenuous objections, approximately nine weeks to respond to the Lach- man affidavit, the Hinckley affidavit offers little but specula- tion that the 1976 increase in returns of ODD disability determines may have been caused by facters other than a substantive policy change. ** The procedures by which the Secretary is able to use her administrative oversight of state disability agencies to effect policy changes in the treatment of disability claims is described in the Lachman Affidavit and in City of New York v. Heckler, 578 F.Supp. 1109, 1113-14 (E.D.N.Y. 1984). * Although t?:e Secretary’s 1980 statement in the Federal Register as to the intent of the 1978 reguiations, see discus- 46a D. SSR 82-55 SSR 82-55 provides directions to SSA personnel on how to apply the Secretary’s severity regulation. The ruling contains a list of 20 impairments that are to be considered per se non-severe. In addition, the rul- ing directs SSA adjudicators to evaluate the severity of a claimant’s impairments singly, not in combina- tion. Thus, if each of a claimant’s impairments is deemed not severe standing alone, no consideration may be given to their combined effect on the claim- ant. 1. Standing Before addressing the merits of plaintiffs’ position as to this ruling, we must consider the plaintiffs’ standing to challenge it, an issue raised by the Gov- ernment. We believe plaintiffs have amply demon- strated standing to challenge the policies set forth in SSR 82-55. The Government argues that irrespective of SSR 82-55, the named plaintiffs’ impairments were in fact considered in combination by the ALJs, and that therefore none of the plaintiffs have standing to challenge that aspect of SSR 82-55. However, as plaintiffs point out, there is no mention whatsoever of such consideration in the ALJs’ decisions denying benefits to plaintiffs Dixon, Carrasquillo, Ramirez, Terez and Feliciano.” Thus, these plaintiffs clearly sion supra, might be seen as such an BC WM lle the Secretary states that the statement should not be so inter- preted. 88 The statements in those decisions that the claimants had no “impairment or impairments” that were severe, upon which the Government relies, certainly offer no basis for the conclusion that the combined effect of plaintiffs’ impairments was considered. 47a have standing to challenge the Secretary’s policy of refusing to consider the combined effects of unrelated impairments. As to plaintiffs Casey and Gonzalez, although the ALJs did state in conclusory fashion that their impairments were not severe either singly or in combination, the opinions indicate that each impairment was evaluated individually and found not severe.” In view of the fact that SSR 82-55 contains a binding directive that the combined effect of non- severe impairments is not to be considered, we be- lieve that, in order to establish that the ALJs ignored the ruling and gave full consideration to the combined effect of plaintiffs’ impairments the Secretary must do more than point to such conclusory statements. Moreover, several of the named plaintiffs suffer from impairments listed as per se non-severe condi- tions in SSR 82-55. Plaintiffs Dixon and Ramirez have suffered a loss of sight in one eye, a per se non- severe impairment under the ruling. Plaintiffs Car- rasquillo, Terez and Casey suffer from arthritis, which is per se non-severe if there are “minimal abnormal findings on physical examination.” Plain- tiffs Carrasquillo, Casey and Gonzalez also suffer from hypertension, which is considered non-severe if it is not accompanied by end organ damage. In view of the ALJ’s obligation to consider these impairments non-severe, the fact that the ALJs did not specifically mention SSR 82-55 in their decisions does not under- mine these plaintiffs’ standing to challenge the policy set forth in that ruling. In any event, the ALJ who %9 The decision in plaintiff Lockett’s case contains a similar statement, although there is no indication of whether the ALJ deemed Lockett to have several district neurological and psychological impairments, or just one impairment with sev- eral manifestations. 48a ruled on Gonzalez’ claim did refer to SSR 82-55 in his decision, and thus at the very least Gonzalez has standing to represent a class of claimants challenging this aspect of SSR 82-55. 2. The Merits The Secretary’s policy of refusing to consider the combined effects of impairments which are individ- ually found not to be severe is manifestly irrational and finds no support either in logic or in the Social Security Act. SSR 82-55 contains the following ex- planation of the Secretary’s policy: “Inasmuch as a nonsevere impairment is one which does not significantly limit basic work- related functions, neither will a combination of two or more such impairments significantly re- strict the basic work-related functions needed to do most jobs.” In much the same way, a mathematician might prove that because two does not equal four, two plus two never equals four either.” Clearly, in order to determine, as the Act requires, whether a claimant has an “impairment or impair- * The Secretary’s reasoning might be defensible if a non- severe impairment were defined as one which places no limits on a claimant’s ability to perform basic work-related activi- ties. In that event, several “impairments” which place no limi- tation on a claimant’s activity could be assumed to have no effect in combination as well. The severity regulation, how- ever, defines a severe impairment as one which significantly limits work-related functions. Obviously, two impairments which individually do not place a significant limitation on a claimant’s work-related abilities, but which each places some limitation on his abilities, may in combination place a signifi- cant limitation on his abilities. 49a ments”) of such severity that he cannot perform any “substantial gainful work,” the Secretary must con- sider the total effect of an individual’s impairments on his ability to perform gainful work.“ Under the Secretary’s policy, however, a claimant who suffers (for example) from all twenty per se non-service impairments listed in SSR 82-55, and thus suffers from arthritis, loss of one eye, hypertension, obstruc- tive airway disease, eplipsy, chronic liver disease, a peptic ulcer and diabetes, along with the twelve other listed impairments, is conclusively presumed not to meet the Secretary’s severity threshold and thus is not disabled. If such a person is also.59 years old, illiterate, does not speak English, and has no work experience, such circumstances are simply irrelevant, because in the absence of a severe impairment the claimant’s vocational factors will not be considered. Such a result clearly cannot have been contemplated by Congress when it drafted the definition of disabil- ity which appears in the Act. Accordingly, plaintiffs are plainly entitled to preliminary relief enjoining the Secretary from continued enforcement of her policy of disrgarding the combined effects of non- severe impairments. As to the Secretary’s policy that a claimant will never be found disabled if his impairment is one of those listed in SSR 82-55, such a pelicy is unlawful for the same reason that the severity regulation is unlawful. The disability statute requires consider- ation of the combined effect of an individual’s impair- *1 Decisions of this Circuit have held that the regulations require the ALJ to consider the combined effect of a claim- ant’s impairments. See Felshina v. Schweiker, 707 F.2d 71, 73 (2d Cir. 1983) ; Kolodnay v. Schweiker, 680 F.2d 878, 879- 80 (2d Cir. 1982). 50a ment and his age, education, work experience, and ability to return to prior work. The severity regula- tion is unlawful because it mandates the denial of claims without consideration of vocational factors. It follows that the use of a list of per se non-severe im- pairments to deny disability claims without evalua- tion of vocational factors is also unlawful.” Indeed, as plaintiffs point out, the use of such a list means that many claims will not even be evaluated in terms of the effect of the impairment on the claimant’s abil- ity to perform basic work-related functions, as the severity regulation itself requires. As one commenta- tor has stated, the listed impairments “are not for the most part, examples of slight functional impair- ments at all but, rather, examples of medical condi- tions. Example 1(a) thus does not refer to whether or not the individual can bend, stoop, sit, ete., but, rather, to osteoarthritis with minimal abnormal] find- ings.” “ This per se approach to disability evalua- tions is simply inconsistent with the Act.“ “2 The Fourth Circuit has long held such a practice to be unlawful. See Martin v. Secretary of Health, Education & Welfare, 492 F.2d 905 (4th Cir. 1974); Hyatt v. Heckler, 579 F.Supp. 985 (D.N.C. 1984). 48 Goldhammer & Bloom, Recent Changes in the Assessment of Pain in Disability Claims Before the Social Security Ad- ministration, Social Security Reporting Service 306 (January 1984). - # Plaintiffs also argue that SSR 82-55 is unlawful because it was not promulgated in accordance with the notice-and- comment procedures of the APA. The Secretary argues that SSR 82-55 is merely an interpretive rule and as such is not subject to the APA’s notice-and-comment requirements. Al- though an agency’s characterization of its own rules is entitled to deference, it is not_necessarily dispositive in all circum- stances. See generally Cabais v. Egger, 690 F.2d 284 (D.C. 5la E. Irreparable Harm As discussed above the illegal denial of benefits to the plaintiffs in these cases is causing irreparable harm. David Dixon has not been able to work since 1974, and public assistance is his sole means of sup- port. He has not bought new clothing for three years. Ricardo Ramirez has not worked since 1978 as a result of his disabilities, and the sole means of sup- port for Ramirez, his wife, and their three small chii- dren, is $428 per month in public assistance and $120 per month in food stamps. Their rent is $348 per month, and the family is behind in paying its rent and utilities, and goes without food at times. Joanne Lockett’s sole source of income is her pension of $429.09 per month and she states that she owes ap- proximately $700 in medical bills and- fears that she will not be able to pay future medical expenses. The circumstances of the other named plaintiffs are simi- lar. The harm that they are suffering on a day-to- day basis as a result of their desperate financial cir- cumstances cannot be repaired by a retroactive award of benefits. Accordingly, the irreparable harm ele- ment of the test for preliminary relief is amply satis- fied here. F. In holding that plaintiffs have demonstrated a like- lihood of success as to the invalidity of the severity regulation, we are aware that some courts outside Cir. 1983). We need not resolve this question here, however, since we find the policies set forth in SSR 82-55 to be invalid on other grounds. Regardless whether the ruling is subject to notice-and-comment requirements, the substantive policy set forth in the ruling may be enjoined if it is inconsistent with the statute. 52a this Circuit have construed the regulation narrowly so as to save it from a finding of invalidity. With respect to these courts, we believe the analysis in these opinions is incorrect and is likely to result only in continued confusion and endless appeals of deci- siuns in which the Secretary’s findings of non-severity is reversed for failure to follow the court’s construc- tion of the regulation. In Brady v. Heckler, 724 F.2d 914 (11th Cir.1984), the Eleventh Circuit rejected a challenge to the severity regulation, holding that the regulations enacted in 1978 (and slightly modified in 1980) “were not meant to alter the level of severity for a finding of not disabled on the basis of medical considerations alone. Under the 1968 and 1978 regulations, 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.” Id., at 920. Having interpreted the severity regula- tion in this de minimis fashion, the Court resound- ingly reversed the ALJ’s finding that the plaintiff’s impairments were not severe, stating: “an individual who suffers from pericarditis, hypoglycemia, vertebro vascular insufficiency, mental depression, and possible emphysema, is not suffering from a slight neurosis, slight im- pairment of sight or hearing, or other slight abnormality or combination of slight abnormal- ities.” Id. at 921. 53a Other courts have stopped short of ruling on the validity of the severity regulation itself, by simply announcing what they believe to be the correct man- ner of applying the regulation, and reversing the ALJ’s decision for failing to apply the regulation cor- rectly. For example, in McCullough v. Heckler, 583 F.Supp. 934 (N.D.II.,1984), the Court stated that the severity regulation “should be employed only when a claim is so groundless that any analysis of the claimant’s work experience or residual functional capacity would be a waste of time. Doubts should be re- solved against resting any decision on ‘severity’ alone... .” Id. at 937-938. In Hundreiser v. Heckler, 83 Civ. 4360, slip op., (N.D.Ill. March 19, 1984), the Court announced a slightly different approach, ruling that disability claims cannot be denied merely on a finding of non-severity, if the claimant establishes that he is unable to return to his prior work: “the claimant can... rebut the Secretary’s [finding of non-severity] by showing that his impairments prevent him from doing his past work. In other words, by making out a prima facie case of disability through showing an in- ability to do past work due to ‘an impairment’ the claimant necessarily satisfies the ‘severe’ impair- ment requirement of 20 C.F.R. § 404.1520(c).” Id. at pp. 23-24." 45 See also Wallschlaeger v. Schweiker, 705 F.2d 191 (7th Cir. 1983) (treating the definition of severity in the regula- tions as an essentially tautological one, in order to reconcile the regulation with the statutory definition of disability) ; 54a The common conclusion of these opinions, all of which have been handed down in individual disability appeals, is that the problem dies not in the severity regulation itself, but in the improper application of the regulation by SSA personnel. In none of these cases, however, was the court’s attention directed to SSR 82-55—which makes clear the fact that SSA per- sonnel are not permitted to apply the severity regula- tion merely as a de minimis standard—or to the statistical evidence illustrating the dramatic rise in the percentage of cases denied on medical grounds alone since the enactment of the severity regulation. As our analysis on the merits indicates, the prob- lem lies not in the proper application of the severity regulation, but instead in the conflict between’ that regulation and the statutory definition of disability. Neither sound policy nor appropriate respect for Con- gress’ goal of establishing a functioning system of benefits administration is properly served by endless case-by-case reversals of ALJ’s decisions, in which the judiciary plays the role of Cuchulain battling the invulnerable tide. Because the severity regulation, and the policies set forth in SSR 82-55, conflict with the Social Security Act, they are invalid. III. Class Certification Plaintiffs move pursuant to Fed.R.Civ.P. 23(a) and 23(b) (2) for certification of a class consisting of Scruggs v. Schweiker, 559 F.Supp. 100 (M.D.Tenn. 1982) (announcing that in future Social Security appeals where the ALJ’s analysis ended with the application of the severity test, the Court would apply a set of presumption to supply the missing fact-findings under the remainder of the sequential evaluation). 55a “All persons in the State of New York who have filed or will file applications for disability bene- fits under Title II and/or Title XVI of the Social Security Act, and whose benefits have been or will be denied pursuant to the policies set forth in 20 C.F.R. §§ 404.1520(c) and .1521, 416.920 (c) and .921 (1982), and Social Security Rulings cum. ed. 82-55 (1982) ; and all recipients of such benefits who have made or will make claims for continued benefits (threugh participation in a Continuing Disability Interview), and whose benefits have been or will be terminated pursuant to the same policies.” The Secretary raises several objections to certifi- cation of the class as so defined. She contends that the class is overly broad because it includes individ- uals who (1) received final decisions from the Secre- tary more than 60 days prior to the filing of the com- plaint in the instant action and who have not filed claims in federal] court, and thus have failed to meet the 60-day filing deadline required by section 405(g) and 13883(c) (3); (2) have not fully exhausted their administrative remedies as required by sections 405 (zg) and 1888(c)(3); and (3) have not yet filed claims for benefits or had their benefits terminated, and thus have not satisfied the presentment require- ment of sections 406(g) and 1383(c) (3).* The exhaustion requirement has already been dis- cussed above, in section II. A. of this Memorandum, and we have concluded that the requirement is waived in this case on account of the irreparable harm being 46 The Secretary’s argument that none of the named plain- tiffs have standing to challenge SSR 82-55 has already been discussed and rejected in section II. D. 1. of this memorandum. 56a suffered by claimants who are unlawfully denied ben- efits. The questions that remain to be resolved are whether the class may include those individuals who received final decisions more than 60 days prior to the filing of the original complaint in this action, and whether class certification may extend to future ap- plicants for benefits. Ordinarily, a claimant who has received a final decision by the Secretary denying benefits must file a complaint in federal court within 60 days of the denial of his claim will be time-barred. However, the 60-day requirement constitutes a statute wf limitations and not a jurisdictional bar, and some