Petition for Writ of Certiorari — Bowen v. Wilson
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8 6 9 8 4 z Pe Court, U.S,
FEL ED
DEC 2 1986
No. | JOSEPH F. SPANIOL, JR.
In the Supreme Court uf the United States
OCTOBER TERM, 1986
Otis R. BOWEN, SECRETARY OF HEALTH
AND HUMAN SERVICES, PETITIONER
Vv.
JOHN WILSON, ET AL.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
CHARLES FRIED
Solicitor General
Department of Justice
Washington, D.C. 20530
(202) 683-2217
QUESTION PRESENTED
Whether the court of appeals correctly affirmed the
district court’s preliminary injunction barring the
Secretary of Health and Human Services from apply-
ing 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” im-
pairment that significantly limits his ability to do
basic work activities.
(1)
ee ee ee ee eee eee ame rs Pa Te
II
PARTIES TO THE PROCEEDINGS
The petitioner is the Secretary of Health and Hu-
man Services. The named respondents are John Wil-
son and Mary Christopher. In addition, the district
court certified the following class of plaintiffs (App.,
infra, 19a-20a, 522}
All persons in t»e State of New Jersey who have
filed or will file applications for disability bene-
fits under Title II and/or Title XVI of the Social
Security Act, as amended, and whose benefits
have been or will be denied or terminated based
upon a finding of no severe impairment pursuant
to the policies set forth in 20 C.F.R. §§ 404.1520
(c) and .1521, 416.920(c) and .921 (1983), and
Social Security Ruling 82-55 (1982).
The plaintiff class does not include, at this time,
any such persons who received decisions of the
Secretary on or before July 25, 1984 and who
failed to file a Complaint in Federal District
Court or to appeal to the next level of adminis-
trative review, within 60 days after the date of
receipt of such decision.
TABLE OF CONTENTS
Page
a is eehisitbessedennhahananwoudasic 1
es tinbabislialiasbohniinantesausie 2
Statutory and regulatory provisions involved _............ 2
i i a isle ineers TIONG Ae a PEE 2
Reasons for granting the petition -.................... akaead sei 9
i AE Re RSA oe Oo 15
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a. a aah abi eapiaoe ndebelnmnpanvouinets 16a
clerics cnsigbhanbieiaincabibehsintiatnanehtavnonribiinanbecnicrageesn 17a
Appendix ah a aatinie 19a
i Act < acisaiiiniscincsncibhninhiniennlinddnéinsdicsneseneaiecnshacin 21a
a A TR ce ge a a eS 44a
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IB citinevrcitnie icicle tad ai ahlitiiindibiehicscintantc 66a
TABLE OF AUTHORITIES
Cases :
Baeder v. Heckler, 768 F.2d 547 .................2........---. 6, 7,8
Bowen Vv. City of New York, No. 84-1923 (June 2,
a reiecrscbiaemnbupbcnantiptonaiuan 10, 11
Bowen v. Yuckert, cert. granted, No. 85-1409
aR a cnc a ene Ree a 2,4, 7,9, 14, 15
FTC v. Standard Oil Co., 449 U.S. 282 .......0000......... il
- Heckler v. Lopez, 463 U.S. 1328, motion to vacate
stay Gemted, 464 U.S. B79 ........0...... nick 12, 18, 14
Heckler v. Redbud Hospital District, No. A-32
ad cedsnalaalleiieiiebenan 14
IV
-
Cases—Continued : Page
Kershner v. Mazurkiewicz, 670 F.2d 440 .............. 8, 138, 14
Weinberger Vv. Salfi, 422 U.S. 749 ...............---..---00000 10, 12
Statutes and regulations:
Social Security Act, 42 U.S.C. (& Supp. II) 301
et seq.:
Tit. II, 42 U.S.C. (& Supp. II) 401 et seq.:
§ 205, 42 U.S.C. (& Supp. IT) 405 ~............ 11
§ 205(g), 42 U.S.C. 405(g) ..........-... 4,5, 9,11, 12
§ 221(d), 42 U.S.C. (& Supp. II) 421(d) .. 11
§ 223(a) (1) (D), 42 U.S.C. (Supp. IT)
I as 2
§ 223(d) (1) (A), 42 U.S.C. (& Supp. II)
ne 2, 3, 66a
§ 223(d) (2) (A), 42 U.S.C. (& Supp. II)
I io ke 2, 3, 6, 66a
§ 223(d) (2) (C), 42 U.S.C. (Supp. II)
ND > oe ees 2, 68a
Tit. XVI, 42 U.S.C. (& Supp. II) 1381 et seq.:
§1611(a), 42 U.S.C. (& Supp. I)
|< | ERASER ARR ARE Re haannoter bre PnOn eee nN Nar 2-3
§ 1614(a) (3) (A), 42 U.S.C. (& Supp.
ep Rea te A) 2... 2,3, 67a
§ 1614(a) (3) (B), 42 U.S.C. (& Supp.
i ae | Et} enoneenrssnae 2, 3, 67a
§ 1614(a) (3) (G), 42 U.S.C. (Supp. IT)
I -evissccieekncnisasvsciiozstorstanins 2, 68a
§ 1631(c) (3), 42 U.S.C. (& Supp. II)
1383 (c) (3) -....... Soi bgldahsacipbasbeienke ions 11
Social Security Disability Benefits Reform Act of
1984, Pub. L. No. 98-460, § 4, 98 Stat. 1800-
sand dacensienaald idan 2
OO 555 ide ideinwdeninenonsnmesetcedboadl 8, 12, 13
20 C.F.R.:
REM RSE EIR COI OO 2, 3, 68a
a a clone 3
I iss aitiarincsinsisncninasbitinnie ananassae 3,4
I I UI os i ccceenlcncbeidetlanetes 4
Vv
Statutes and regulations—Continued : Page
RE BG OOD ona asinnns nena issrnsnniicc cscs ccncnccomesens 4
I i sinlaunidames 4
iis icdsinacieiceinatnatiicnnsiuenstsltiaatiniakien 2, 70a
oo ska ceigunaanebelaeesnaiens 3
ni onnicdaansunsensonmbinbas 4
TG ns cas cndvecosanbncncncnnsicicenibabass 4
RAS Ere a a RR Aree IRS 2,3, 7la
I a sala decieiceaees 3
ss aisanaiegnamnndaiiniioaompannh 3, 4
aaa aR FO 4
IE IC ee Ree RRA 4
A ee RRR AIR RA DRA a re eS 4
Nn ee ee 2, 72a
I aaa cs aaa 3
i lcs cada aeadvadeaaunieeiaaah 4
Lt ) ea cE er eran aes 4
Miscellaneous :
Social Security Ruling 85-28 (1985) —........022.00...... 7,9
Iu the Supreme Court of the United States
OCTOBER TERM, 1986
No.
OTIS R. BOWEN, SECRETARY OF HEALTH
AND HUMAN SERVICES, PETITIONER
v.
JOHN WILSON, ET AL.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
The Solicitor General, on behalf of the Secretary
of Health and Human Services, petitions for a writ
of certiorari to review the judgment of the United
States Court of Appeals for the Third Circuit in this
case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra,
la-14a) is reported at 796 F.2d 36. The October 28,
1985 opinion of the district court on respondents’
motions for class certification and a preliminary in-
junction (App., infra, 21a-43a); the November 14,
1985 supplemental opinion of the district court (App.,
infra, 44a-50a); and the November 14, 1985 order
of the district court certifying the class and granting
a preliminary injunction (App., infra, 5la-65a), are
reported at 622 F. Supp. 649.
(1) :
cn
JURISDICTION
The judgment of the court of appeals was entered
on July 14, 1986, and the petition for rehearing was
denied on September 3, 1986 (App., infra, 17a-18a).
The jurisdiction 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 codified
at 42 U.S.C. (& Supp. II) 423(d)(1)(A) and (2)
(A), 1882c(a) (3) (A) and (B); Sections 223(d) (2)
(C) and 1614(a) (8) (G) of the Social Security Act,
as added by Section 4 of the Social Security Disabil-
ity Benefits Reform Act of 1984, Pub. L. No. 98-460,
98 Stat. 1800-1801 (codified at 42 U.S.C. (Supp. IT)
423(d)(2)(C), 1882c(a)(8)(G)); and 20 C.F.R.
404.1520, 404.1521, 416.920 and 416.921 are repro-
duced at App., infra, 66a-73a.
STATEMENT
This New Jersey-wide class action involves the
validity 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. II) 423(a)(1)(D)). Disability benefits also
are provided under the Supplemental Security Income
program established by Title XVI of the Act (42
3
U.S.C. (& Supp. II) 1882(a)). The term “disability”
is defined under both programs to mean the inability
“to engage in any substantial gainful activity” by
reason of a “medically determinable physical or men-
tal impairment” (42 U.S.C. 423(d)(1)(A), 1882c
(a)(8)(A)). The Act further provides that an in-
dividual “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, 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), 1882¢e(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(b),
416.920(b). If the claimant is not engaged in sub-
stantial 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 walking, standing and lifting; seeing,
hearing and speaking; understanding and carrying
out simple instructions; using judgment; responding
appropriately to supervision and co-workers; and
4
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 these basic work activities, he is found not to be
disabled, without 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 must determine at step 3 whether
the impairment is equivalent in its severity to 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 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 decison-maker must determine at step
5 whether, in light of the claimant’s age, education,
and work experience, he ean perform other work that
exists in the national economy. 20 C.F.R. 404.1520(f),
416.920(f).
2. On October 11, 1983, respondent Wilson brought
this action under 42 U.S.C. 405(g) in the United
States District Court for the District of New Jersey
seeking judicial review of the Secretary’s final de-
cision denying his claim for disability benefits on
1 As we have explained in our brief (at 4 n.1) in Yuckert,
the sequence in which the severity of an impairment is con-
sidered now differs somewhat under the new regulations gov-
erning the evaluation of persons who already are receiving
disability benefits. 20 C.F.R. 404.1594(f), 416.994(b) (5).
However, that differing sequence does not affect the question
whether the absence of a medically “severe” impairment is
sufficient to support a determination that a claimant is not
disabled.
5
the ground that he did not have a “severe” impair-
ment within the meaning of the regulations discussed
above. On October 1, 1984, Wilson, joined by re-
spondent Christopher, filed an amended complaint,
seeking class certification and a preliminary injunc-
tion. App., infra, 22a-28a, 37a-38a.’
a. By order dated October 9, 1985, the district
court certified a class consisting of all persons in
New Jersey who have filed or will file applications
for disability benefits under Title II or Title XVI
of the Act and whose benefits have been or will be
denied or terminated based on the absence of a severe
impairment under the regulations (App., infra, 19a-
20a). The court specified that, “at this time,” the
class does not include any such persons who received
decisions of the Secretary on or before July 25, 1984
and who failed to appeal to the next level of adminis-
trative review or to file a complaint in district court
within 60 days (id. at 20a). The cut-off date of July
25, 1984, was selected to comply with the requirement
in 42 U.S.C. 405(g) that a claimant must seek ju-
dicial review (in this case, by means of the class rep-
resentatives’ motion for class certification) within 60
days of the Secretary’s final decision on his claim for
benefits (App., infra, 40a & n.15).
However, the district court dispensed with the
other prerequisite to suit under 42 U.S.C. 405(g)
by including in the class persons who had not ex-
2 At the time, respondent Christopher’s claim for benefits
had been denied by the ALJ on the ground that her impair-
ment was not severe, but the Appeals Council had not yet
ruled on her request for review. The Appeals Council there-
after reversed the ALJ’s decision and awarded her benefits,
but the district court nevertheless permitted her to be a class
representative (App., infra, 23a n.1).
6
hausted their administrative remedies and obtained
a decision from the Appeals Council on their individ-
ual claims for benefits (App., infra, 39a-43a). The
court acknowledged the Secretary’s argument that
the class members’ challenge to the severity regula-
tions was not “substantially collateral but [was] in
fact identical to plaintiffs’ claims for benefits” (id.
at 42a). But the court nevertheless believed that
exhaustion could be dispensed with because, in its
view, the Secretary had assumed a “fixed” position
with respect to the validity of the severity regula-
tions, thereby rendering exhaustion “futile” (id. at
41a), and the plaintiffs would suffer “irreparable
harm” as a result of the loss of benefits while they
pursued administrative remedies (id. at 33a-34a,
42a).
b. The district court next held that a “preliminary
injunction” should issue to bar application of the
severity regulations to all members of this certified
class (App., infra, 3la-35a). The court concluded
that, by virtue of the Third Circuit’s then-recent de-
cision in Baeder vy. Heckler, 768 F.2d 547 (1985),
the plaintiffs were likely to succeed on the merits of
their challenge to the regulations (App., infra, 27a-
31a). In Baeder, the court held that 42 U.S.C. (&
Supp. II) 423(d)(2)(A) requires consideration of
the claimant’s age, education, and work experience in
every case and that benefits therefore cannot be de-
nied on the basis of medical factors alone, as the
severity regulations permit. 768 F.2d at 551. The
court did state in Baeder that it might find the regu-
lations to be consistent with the Act if they screened
out only those persons with de minimis impairments;
but the court found that the regulations were not so
applied (zbid.) and therefore held them invalid (id.
at 553).
7
After Baeder was decided, the Secretary issued
Social Security Ruling (SSR) 85-28 (1985), which
makes clear that the severity regulations are in-
tended to screen out only those claimants whose im-
pairments could be expected to have no more than a
minimal effect on their ability to work even if their
age, education, and work experience were specifically
considered.* The district court in the instant case
nevertheless held that Baeder does not permit the
Secretary to apply even a de minimis standard, as
under SSR 85-28 (App., infra, 30a). The district
court further concluded that the loss of benefits to
those class members whose claims were denied be-
cause their impairments were not severe was likely
to cause them irreparable injury, which outweighed
the administrative burden that would be imposed on
the Secretary by a preliminary injunction (App.,
infra, 32a-35a).
e. On the foregoing basis, the district court, on
November 14, 1985, entered a sweeping “preliminary
injunction” that enjoined the Secretary from denying
or terminating benefits on the basis of the severity
regulations (App., infra, 58a). The “preliminary in-
junction” also awarded retroactive relief, requiring
the Secretary: (i) to send each class member whose
application was denied or whose benefits were termi-
nated at any stage of the administrative review proc-
ess since July 26, 1984 a prescribed notice informing
him of his right to have his claim redetermined, and
(ii) to reopen and readjudicate the claims of all such
class members who request that relief (id. at 53a-
d4a, 56a-57a, 61a). The court imposed time limits
* SSR 85-28 is reproduced as Appendix I to the petition for
a writ of certiorari (at 37a-44a) and is discussed in our brief
on the mertis (at 10-11, 22, 26-27, 29 n.15, 48 n.29) in Yuckert.
8
for the identification and notification of class mem-
bers (id. at 53a), directed the Secretary to use his
best efforts to acquire new evidence and redetermine
claims within specified time periods (id. at 53a-55a),
and ordered the Secretary to make detailed, periodic
reports to respondents’ counsel (id. at 57a-59a).
8. The court of appeals affirmed the preliminary
injunction (App., infra, la-4a). As an_ initial
matter, the court of appeals declined to consider the
Secretary’s challenge to the district court’s certifica-
tion of a class that included numerous persons who
did not exhaust their administrative remedies (id. at
' 4a-7a). In the court of appeals’ view, a class certifi-
cation issue may be decided on the appeal of a pre-
liminary injunction under 28 U.S.C. 1292(a) (1)
“only when that issue ‘directly controls [the] disposi-
tion of the [preliminary injunction issue], or [when]
the issues are, in some other way, inextricably
bound’ ” (App., infra, 5a, quoting Kershner v. Ma-
zurkiewicz, 670 F.2d 440 (3d Cir. 1982) (en banc)
(brackets added by court) ). The court concluded that
the exhaustion and preliminary injunction issues are
not “sufficiently interrelated” to permit considera-
tion of the former in this case, because the prelim-
inary injunction issue concerns only “whether the
Secretary has authority to continue to apply the se-
verity regulations in light of Baeder and SSR 85-28,”
while the exhaustion issue “would be resolved by
reference to principles of administrative finality”
(App., infra, 6a).
On the merits, the court of appeals read its prior
decision in Baeder to require consideration of voca-
tional as well as medical factors in every disability
ela
9
determination and therefore to prohibit the Secretary
from applying the severity regulations even if they
are limited to de minimis impairments. The court
therefore held that SSR 85-28 does not render the
severity regulations valid. App., infra, Ta-12a.
REASONS FOR GRANTING THE PETITION
1. The Court has granted the petition for a writ
of-certiarari in Bowen v. Yuckert, No. 85-1409, to
consider the validity of the regulations under which
Social Security disability benefits may be denied if
the claimant does not have a severe impairment.
There is no occasion for the Court to grant plenary
review in this case to consider the same issue. The
Court therefore should hold the petition in this case
and dispose of it as appropriate in light of its deci-
sion in Yuckert.*
2. The merits to one side, however, the courts be-
low erred in several respects as regards the preliiui-
nary injunction.
a. The district court erroneously included in the
class and granted relief to numerous claimants who
did not exhaust their administrative remedies through
the Appeals Council stage and therefore did not ob-
tain the “final decision” of the Secretary that is a
jurisdictional prerequisite to suit under 42 U.S.C.
405(g). And the district court did so even though it
did not dispute the Secretary’s contention that each
class member’s challenge to the severity regulations
was not “substantially collateral” to his claim for
benefits, but rather was “identical” to his challenge
* We have likewise suggested that the Court hold the certio-
rari petitions in Bowen v. Johnson, No. 85-1442, and Bowen
v. Dixon, No. 86-2, which also involve the validity of these
regulations, pending the decision in Yuckert.
10
to the interlocutory decision denying his claim in
reliance on those regulations. See App., infra, 42a.
The district court relied on two factors in dispens-
ing with the exhaustion requirement. First, it be-
lieved that exhaustion would be futile (App., infra,
41a, 42a). However, this Court held in Weinberger v.
Salfi, 422 U.S. 749, 766 (1975), that exhaustion
could not be dispensed with on the basis of the court’s
perception of futility even where the claimant chal-
lenged the constitutionality of a provision of the
Social Security Act that barred the payment of bene-
fits, an issue beyond the power of the Secretary to
resolve. At least in the absence of the most compel-
ling and “unique circumstances” (Bowen v. City of
New York, No. 84-1923 (June2,; 1986), slip op. 17),
it would seem to follow a fortiori tivat a court has no
authority to dispense with the exhaustion require-
ment on futility grounds where the claimant chal-
lenges the validity of a regulation, which is within
the power of the Secretary to determine. There are
no special circumstances here that would suggest an
exception to this rule. In further administrative pro-
ceedings, the Secretary would be given the oppor-
tunity to interpret and apply the regulations, and the
ALJ or Appeals Council might find that the claim-
ant’s impairment is “severe” within the meaning of
the challenged regulations, thereby obviating any oc-
casion for the claimant to challenge those regulations
in court.°
5 Respondents do not challenge a “secret” policy, such as
that found by the Court in City of New York, slip op. 12-13,
17; the threshold requirement of a severe impairment is em-
bodied in published regulations. There accordingly can be no
suggestion in this case that those class members who aban-
doned their claims when they failed to seek further adminis-
—e Ur
11
The district court also concluded that exhaustion
should be dispensed with because the members of the
plaintiff class would suffer “irreparable harm” if
they could not obtain immediate relief. This reason-
ing was equally erroneous. When the Court excused ex-
haustion in City of New York, it expressly relied
upon the district court’s finding that the claimants
would suffer a medical setback if they were required
to exhaust their administrative remedies (slip op. 15-
16), such that the pursuit of administrative remedies
would itself affirmatively cause them harm. Compare
FTC v. Standard Oil Co., 449 U.S. 232, 242, 244
(1980). In this case, by contrast, the only injuries
relied upon by the district court were the financial
consequences that result from the denial of claims
for benefits on the merits at preliminary stages of
the administrative review process. If those conse-
quenees—which any disability claimant might allege
—were sufficient to dispense with exhaustion, the
explicit “final decision” requirement in 42 U.S.C.
405(g) would be largely vitiated under the disability
and SSI programs. Congress clearly did not intend
that result when it incorporated 42 U.S.C. 405(g)
and its well-established exhaustion requirement into
the disability and SSI programs in 1956 and 1972.
See 42 U.S.C. (& Supp. II) 421(d), 1883(c) (3).
b. The district court’s error in exercising juris-
diction over the claims of, and awarding relief to,
numerous class members who did not exhaust their
administrative remedies was compounded by the
trative review within 60 days—the very claims that the district
court required to be readjudicated—were prevented by any
action of the Secretary from seeking further review in the
manner required by 42 U.S.C. (& Supp. II) 405 and imple-
menting regulations.
12
court of appeals’ refusal even to consider the cor-
rectness of the district court’s actions in this regard.
The court of appeals viewed the exhaustion issue as
an incidental question of class certification that was
distinct from the propriety of the preliminary injunc-
tion and therefore not within the scope of its juris-
diction under 28 U.S.C. 1292(a)(1) over the appeal
from the order granting a preliminary injunction
(App., infra, 5a-7a). This novel holding was clearly
wrong.
The Secretary of course argued in district court
that no preliminary injunction should issue in this
case for reasons (relating to the merits and equitable
considerations) that had nothing to do with the juris-
dictional requirements of 42 U.S.C. 405(g) (App.,
infra, 31a-35a). But in addition, the Secretary ar- i
gued that those New Jersey residents who failed to
exhaust their administrative remedies could not prop-
erly be included in the class in this suit under 42
U.S.C. 405(g) and therefore could not properly be
the beneficiaries of any relief ordered by the district
court (App., infra, 39a-43a). The district court’s
order at issue here nevertheless grants injunctive re-
lief to those claimants. On the Secretary’s appeal of
that order under 28 U.S.C. 1292(a) (1), the court of
appeals plainly had jurisdiction to decide whether the
injunction was improperly entered as to those plain-
tiffs, even if it was valid as to others—especially
since the Secretary’s challenge to the preliminary in-
junction in this regard is that the district court had
no jurisdiction under 42 U.S.C. 405(g) over the
claims of these class members. See Salfi, 422 U.S. at
766 (a “final decision” is a “statutorily specified ju-
risdictional prerequisite” under 42 U.S.C. 405(g)).
In fact, in Heckler v. Lopez, 463 U.S. 1328 (1983),
the Secretary argued on appeal from a preliminary
NY |
13
injunction that the district court had erroneously
granted relief to class members who had not ex-
hausted their administrative remedies and whose
claims therefore were not within the jurisdiction of
the district court (463 U.S. at 1334-1335 (Rehn-
quist, Circuit Justice)). In granting a partial stay
of that injunction, which the Court subsequently de-
clined to vacate (464 U.S. 879 (1983) ); Justice Rehn-
quist made clear that this jurisdictional issue was
subject to review on appeal of the preliminary in-
junction (463 U.S. at 1331). The dissenting opin-
ions of Justice Brennan and Justice Stevens likewise
expressed no doubt on this issue. 464 U.S. at 879-
884. Any other result would defeat the purpose of
28 U.S.C. 1292(a)(1) of permitting an immediate
appeal of injunctive orders.°
® The court of appeals believed that its refusal to consider
the exhaustion issue was supported by the Third Circuit’s
prior decision in Kershner v. Mazurkiewicz, supra (App.,
infra, 5a-6a). However, the district court in that case had
denied both the plaintiffs’ motion for class certification and
their motion for a preliminary injunction. Because injunc-
tive relief was denied on grounds independent of those that
led to the denial of class certification, the latter question did
not affect the resolution of the preliminary injunction ques-
tion. The Third Circuit therefore concluded that it did not
have “pendent” jurisdiction over the class certification issue.
See 670 F.2d at 459-460. In this case, by contrast, the district
court granted the motions for class certification and for a
preliminary injunction. The validity of the injunction insofar
as it awards relief to class members who did not exhaust
their administrative remedies therefore depends, inter alia,
on whether the district court properly exercised jurisdiction
over those class members’ claims. For this reason, the court
of appeals had jurisdiction to consider the latter question.
Indeed, this case satisfies the test articulated by the court of
appeals, because the question of the district court’s jurisdic-
tion “ ‘directly controls’” and is “ ‘inextricably bound’” up
14
e. Finally, although the district court labeled its
order a “preliminary 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. at 1333 (Rehnquist, Circuit Jus-
tice). The courts below affirmatively barred the Sec-
retary from utilizing the severity regulations in ad-
judicating all disability claims in New Jersey. That
relief is not “preliminary” as regards any individual
class member, because his claim must be either
granted or denied without reference to the regula-
tions that the district court enjoined. Cf. Heckler v.
Redbud Hospital District, No. A-32 (July 24, 1985),
slip op. 5-6 (Rehnquist, Circuit Justice). Moreover,
those regulations rest on a principle—that benefits
may be denied on the basis of medical evidence alone,
without specific consideration of the claimant’s age,
education, and work experience—that has been an in-
tegral feature of the disability program virtually
since its inception in 1956 and has been embodied in
formal regulations for more than 25 years. See
Gov’t Br. at 30-50 in Yuckert. A regulation so deeply
embedded in a program under which millions of
claims are adjudicated annually should not be set
aside until the court has rendered a final judgment
in the case.
The courts below also erred in requiring, as an
incident to the supposedly “preliminary” injunction,
the readjudication of the claims of all class members
whose claims were denied on the basis of the severity
with the question of the award of injunctive relief (App.,
infra, 5a (quoting Kershner, 670 F.2d at 449)). See also
Kershner, 670 F.2d at 447 ( (district court’s jurisdiction may
be considered on appeal of preliminary injunction).
15
regulations and who thereafter failed to seek further
review within the 60 days allowed. The equities do
not favor the granting of relief pendente lite to per-
sons who committed such procedural defaults in the
administrative review process.
d. Although we believe that the district court’s
preliminary injunction and the court of appeals’ af-
firmance of that injunction were erroneous for the
additional reasons just discussed, we do not seek re-
view on those issues at this time. There was no stay
of the retroactive relief ordered by the district court,
and that process has now been largely completed. All
that will then remain is the prospective prohibition
against the use of the regulations. If the Court sus-
tains the severity regulations in Yuckert, the pre-
liminary injunction in this case must be reversed on
the merits, irrespective of the other errors committed
by the courts below in granting and affirming that
injunction. On the other hand, if the Court were to
hold in Yuckert that the severity regulations are in-
valid, the Secretary of course would follow that deci-
sion in New Jersey, as elsewhere, thereby mooting -
the other questions regarding 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
DECEMBER 1986
APPENDIX A
UNITED STATES COURT OF APPEALS
THIRD CIRCUIT
Nos. 85-5814, 86-5072
JOHN WILSON and MARY CHRISTOPHER, on their own
behalf, and on behalf of others similarly situated
Vv.
SECRETARY OF HEALTH AND HUMAN SERVICES
Appeal of Margaret M. Heckler,
Sec. of Health and Human Services
[Argued June 17, 1986 Decided July 14, 1986]
Before SEITZ, HUNTER, and MANSMANN, Circuit
Judges.
JAMES HUNTER, III, Circuit Judge:
Appellees John Wilson and Mary Christopher ori-
ginally brought this action in 1984 to appeal the de-
cisions of the Secretary of Health and Human Serv-
ices (the “Secretary”) denying their applications for
disability insurance benefits. Appellees subsequently
amended their complaint to include class action alle-
gations and requests for declaratory and injunctive
relief against the Secretary. Specifically, they chal-
lenged the Secretary’s policy of denying or terminat-
ing disability benefits solely because claimants’ im-
pairments are not medically “severe” and without
\
(la)
2a
consideration of claimants’ age, education, work ex-
perience, residual functional capacity, or ability to
return to their former work. Appellees then filed
motions for preliminary injunctive relief and class
certification. While these motions were pending be-
fore the district court, this court invalidated one of
the Secretary’s severity regulations, 20 C.F.R. § 404.-
1520(c) (1985), on the ground that it was incon-
sistent with the Social Security Act (the “Act”). See
Baeder v. Heckler, 768 F.2d 547 (8d Cir.1985).
After we decided Baeder, the Secretary defended
the motions pending in the district court by contend:
ing that a policy, set forth in Social Security Ruling
(“SSR”) 85-28, rendered 20 C.F.R. § 404.1520(c)
and the other severity regulations’ consistent with
1In addition to 20 C.F.R. § 404.1520(c), the other severity
regulations at issue here are 20 C.F.R. §§ 404.1521, 416.920
(c), 416.921. These four sections provide as follows:
20 C.F.R. § 404.1520(c):
You must have a severe impairment. If you do not have
any impairment or combination of impairments which
significantly limits your physical or mental ability to do
basic work activities, we will find that you do not have a
severe impairment and are, therefore, not disabled. We
will not consider your age, education, and work experi-
ence. However, it is possible for you to have a period of
disability for a time in the past even though you do not
have a severe impairment.
20 C.F.R. § 404.1521:
What we mean by an impairment(s) that is not severe.
(a) Non-severe impairment(s). An impairment or
combination of impairments is not severe if it does not
significantly limit your physical or mental ability to do
basic work activities.
(b) Basie work activities. When we talk about basic
work activities, we mean the abilities and aptitudes neces-
sary to do most jobs. Examples of these include—
3a
our holding in Baeder. The district court rejected
this argument and granted appellees’ motions for
(1) Physical functions such as walking, standing, sit-
ting, 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.
20 C.F.R. § 416.920 (c) :
You must have a severe impairment. If you do not have
any impairment or combination of impairments which
significantly limits your physical or mental ability to do
basic work activities, we will find that you do not have
a severe impairment and are, therefore, not disabled.
We will not consider your age, education, and work ex-
perience.
20 C.F.R. § 416.921:
What we mean by an impairment(s) that is not severe.
(a) Non-severe impairment(s). An impairment or
combination of impairments is not severe if it does not
significantly limit your physical or mental ability to do
basic work activities.
(b) Basic work activities. When we talk about basic
work activities, we mean the abilities and aptitudes neces-
sary to do most jobs. Examples of these include—
(1) Physical functions such as walking, standing, sit-
ting, 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.
4a
class certification and preliminary injunctive relief.
The Secretary appeals the orders of the district court,
invoking our jurisdiction under 28 U.S.C. § 1292(a)
(1) (1982). We will vacate in part the district
court’s order issuing the preliminary injunction and
remand the matter to the district court.
Z
Before we discuss the merits of the district court’s
grant of the preliminary injunction, we initially con-
front the Secretary’s assertion that the district court
erred in certifying the class of plaintiffs. The class
certified by the district court includes
[a]ll persons in the State of New Jersey who
have filed or will file applications for disability
benefits under Title II and/or Title XVI of the
Social Security Act, as amended, and whose bene-
fits have been or will be denied or terminated
based upon a finding of no severe impairment
pursuant to the policies set forth in 20 C.F.R.
$$ 404.1520(c) and .1521, 416.920(c) and .921
(1983), and Social Security Ruling 82-55 (1982).
Wilson v. Heckler, 622 F.Supp. 649, 661-62 (D.N.J.
1985). In its order, the district court also stated:
The plaintiff class does not include, at this time,
any such persons who received decisions of the
Secretary on or before July 25, 1984 and who
failed either to file a complaint in federal dis-
trict court or to appeal to the next level of ad-
ministrative review within 60 days after the
date of receipt of such decision.
For purposes of determining class membership,
the term “person in the State of New Jersey” is
defined as an individual who was domiciled in the
a
State of New Jersey at the time of his or her
most recent administrative decision.
For purposes of determining whether disability
was denied or terminated based on a finding of
no severe impairment, the rationale of the final
agency denial shall be controlling except that the
rationale of the Administrative Law Judge shall
be controlling where the Appeals Council denies
review and has not initiated review on its own
motion pursuant to 20 C.F.R. § 404.969 (1983).
Wilson, 622 F.Supp. at 662.
The Secretary argues that the district court erred
by including in the class claimants who have failed
to exhaust administrative remedies. As explained be-
low, we will not rule on this argument.
Our jurisdiction in this appeal is provided by 28
U.S.C. § 1292(a)(1), which empowers this court to
review district court orders “granting, continuing,
modifying, refusing or dissolving injunctions.” The
district court’s class certification ruling is pendent to
the preliminary injunction order, which provides the
basis for this appeal. In Kershner v. Mazurkiewicz,
670 F.2d 440 (8d Cir.1982) (in banc), this court held
that “a pendent class certification order is not ap-
pealable under section 1292(a)(1) unless the prelim-
inary injunction issue cannot properly be decided
without reference to the class certification question.”
Id. at 449. The pendent class certification issue may
be decided only when that issue “directly controls
[the] disposition of the [preliminary injunction is-
sue], or [when] the issues are, in some other way,
inextricably bound.” Jd.; see Tustin v. Heckler, 749
F.2d 1055, 1065 (3d Cir.1984).
6a
We believe that the class action and preliminary
injunction issues are not sufficiently interrelated to
provide us with jurisdiction to rule on the Secretary’s
class action contention. As appellees observe, each of
the two issues are governed by different considera-
tions. The preliminary injunction issue concerns
whether the Secretary has authority to continue to
apply the severity regulations in light of Baeder and
SSR 85-28; the class certification issue, however,
would be resolved by reference to principles of ad-
ministrative finality.
Despite these differences, the Secretary maintains
that the two issues may not be resolved separately
because the district court premised its grant of a
preliminary injunction on the status of the case as a
class action. Specifically, the Secretary relies on the
following statement by the district court:
In light of Baeder and of the new SSR, the court
believes that plaintiffs would prevail on the mer-
its with respect to the requested injunctive relief.
Contrary to the Secretary’s assertion, the Baeder
opinion does not “obviate the need for injunctive
relief.” Defendant’s Supplemental Memorandum
at 16. The Baeder court did refuse to affirm the
district court’s “all-encompassing” injunction
barring the Secretary from conducting any pro-
ceedings whatsoever using the severe impairment
regulation. Baeder, supra, 768 F.2d at 550, 553.
However, the Third Circuit noted that it did so
because the district court did not have the au-
thority to issue so broad an injunction in the con-
text of an individual disability appeal. Jd. In
contrast, the instant action is appropriate for
such relief since plaintiffs seek an injunction in
the context of a motion to certify a broad class
of disability applicants.
Ta
Wilson, 622 F.Supp. at 654. Nothing in this passage
reveals that the presence of a subclass of claimants
who had failed to exhaust their administrative rem-
edies was determinative of the court’s decision to is-
sue the injunction. We also find no language in the
remainder of the opinion demonstrating that the dis-
trict court would have refused to allow the suit to
proceed as a class action if the subclass were ex-
cluded. Thus, it appears that the specific class cer-
tification issue raised here was not necessarily a vital
component of the district court’s decision to issue the
injunction. While we agree with the Secretary that
the two issues are related, we do not deem them in-
extricably connected and therefore will rule on the
preliminary injunction issue alone.
II.
In granting the appellees’ motion for a preliminary
injunction, the district court enjoined the Secretary
“from denying or terminating Social Security Dis-
ability or Supplemental Security Income Benefits due
to the policies set forth in 20 C.F.R. §§ 404.1520 (c)
and .1521, 416.920(c) and .921 (19838), and Social
Security Ruling 82-55.” * The district court also im-
2 According to the Secretary, this appeal does not concern
SSR 82-55, which was “obsoleted” in April 1985. See Appel-
lant’s brief at 4 n.1. Instead, the Secretary identifies SSR 85-
28 as the interpretive ruling revelant to this appeal. See id.
at 35. Prior to granting the injunction, the district court
issued an opinion in which it held that SSR 85-28, which was
then unpublished, violated Baeder’s holding. See Wilson, 622
F.Supp. at 650. The court, however, did not refer to SSR 85-
28 in its preliminary injunction order. Nevertheless, the Sec-
retary reports in her brief that SSR-85-28 will not be applied
in New Jersey unless the district court’s injunction is vacated.
See Appellant’s brief at 35 n.15.
8a
posed timetables for, inter alia, identification and
notification of class members, shipment of files to the
New Jersey Division of Disability Determinations,
and reconstruction of claims files. The Secretary not
only claims that the district court erred in enjoining
application of the severity regulations, but also com-
plains that the timetables constitute improper judicial
intrusion into the operation of the Department of
Health and Human Services.
We may reverse a district court’s order granting
preliminary injunctive relief only upon finding that
the district court abused its discretion or committed
an error of law in issuing the requested relief. See,
e.g., Kershner, 670 F.2d at 443; Continental Group,
Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 357
(3d Cir.1980). In pressing his first contention that
the district court erred in enjoining the agency from
applying the severity regulations, the Secretary main-
tains that the district court committed an error of
law. Therefore, our standard of reviewing that con-
tention is plenary. See Tustin, 749 F.2d at 1060.
The essence of this contention is that the district
court erroneously concluded that SSR 85-28 was con-
trary to our Baeder decision. SSR 85-28 provides in-
structions for applying the second step of the evalua-
tion process for determining entitlement to disability
or supplemental security income benefits.* Under
® SSR-85-28 provides, in part, as follows:
As explained in 20 CFR, sections 404.1520, 404.1521,
416.920(c), and 416.921, at the second step of sequential
evaluation it must be determined whether medical evi-
dence establishes an impairment or combination of im-
pairments “of such severity” as to be the basis of a find-
ing of inability to engage in any SGA [substantial gain-
ful activity]. An impairment or combination of impair-
9a
ments is found “not severe” and a finding of “not dis-
abled” is made at this step when medical evidence estab-
lishes only a slight abnormality or a combination of
slight abnormalities which would have no more than a
minimal effect on an individual’s ability to work even if
the individual’s age, education, or work experience were
specifically considered (i.e., the person’s impairment (s)
has no more than a minimal effect on his or her physical
or mental ability (ies) to perform basic work activities).
Thus, even if an individual were of advanced age, had
minimal education, and a limited work experience, an
impairment found to be not severe would not prevent
him or her from engaging in SGA.
The severity requirement cannot be satisfied when
medical evidence shows that the person has the ability
to perform basic work activities, as required in most jobs,
Examples of these are walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying or handling; seeing,
hearing, and speaking; understanding, carrying out, and
remembering simple instructions; use of judgment, re-
sponding appropriately to supervision, coworkers, and
usual work situations; and dealing with changes in a
routine work setting. Thus, these basic work factors are
inherent in making a determination that an individual
does not have a severe medical impairment.
A claim may be denied at step two only if the evidence
shows that the individual’s impairments, when considered
in combination, are not medically severe, z.e., do not have
more than a minimal effect on the person’s physical or
mental ability (ies) to perform basic work activities. If
such a finding is not clearly established by medical evi-
dence, however, adjudication must continue through the
sequential evaluation process.
At the second step of sequential evaluation, then, medi-
cal evidence alone is evaluated in order to assess the
effects of the impairment(s) on ability to do basic work
activities. If this assessment shows the individual to have
the physical and mental ability (ies) necessary to perform
10a
those instructions, the administrative adjudicator may
apply the severity regulations, including 20 C.F.R.
§ 404.1520(c), which was invalidated in Baeder. The
Secretary justifies this policy by reading Baeder to
such activities, no evaluation of past work (or of age,
education, work experience) is needed. Rather, it is rea-
sonable to conclude, based on the minimal impact of the
impairment (s), that the individual is capable of engaging
in SGA.
By definition, basic work activities are the abilities and
aptitudes necessary to do most jobs. In the absence of
contrary evidence, it is reasonable to conclude that an
individual whose impairments do not preclude the per-
formance of basic work activities is, therefore, able to
perform his or her past relevant work. If the medical evi-
dence establishes only a slight abnormality (ies) which
has no more than a minimal effect on a claimant’s ability
to do basic work activities, but evidence shows that the
person cannot perform his or her past relevant work be-
cause of the unique features of that work, a denial at the
“not severe” step of the sequential evaluation process is
inappropriate. The inability to perform past relevant
work in such instances warrants further evaluation of
the individual’s ability to do other work considering age,
education and work experience.
Great care should be exercised in applying the not
severe impairment concept. If an adjudicator is unable
to determine clearly the effect of an impairment or com-
bination of impairments on the individual’s ability to do
basic work activities, the sequential evaluation process
should not end with the not severe evaluation step. Ra-
ther, it should be continued. In such a circumstance, if
the impairment does not meet or equal the severity level
of the relevant medical listing, sequential evaluation re-
quires that the adjudicator evaluate the individual’s abil-
ity to do past work or to do other work based on the
consideration of age, education and prior work experi-
ence.
SSR 85-28 (footnote omitted).
iia oie
i i a i
lla
provide that section 404.1520(c) is valid if applied
only as a de minimus requirement that screens out
applicants whose medical problems are “of a minimal
nature.” See Appellant’s brief at 32. We disagree.
In Baeder, we held section 404.1520(c) invalid be-
cause the regulation’s language and history of appli-
cation was inconsistent with the Social Security Act’s
mandate that the Secretary consider both medical and
vocational factors in deciding to award and continue
benefits. 768 F.2d at 551-53. We specifically declined
to follow other courts that upheld the validity of the
section provided that the Secretary applied it to bar
only the claims of those with de minimus medical
complaints. Jd. at 553. By continuing to apply sec-
tion 404.1520(c) as clarified by SSR 85-28, the Sec-
retary is following the path that we explicitly re-
jected.
The Secretary argues that language from Baeder
expresses this court’s acceptance of the validity of
section 404.1520(c), if applied as a de minimus
threshold. It is true that the Baeder court recognized
that section 404.1520(c), read to apply only to ap-
plicants whose impairments could never prevent them
from working, may be found to contain implicit con-
sideration of vocational factors as required by the
Social Security Act. Jd. at 552. Nevertheless, in light
of the history of the severity regulations and statis-
tical evidence of their application, the Baeder court
decided against permitting such a tenuous accom-
modation of the Act’s mandate.* Thus, the district
4 We also note that subsequent opinions of this court should
not be read as deviating from the Baeder court’s decision
that as a matter of general policy, the severity regulations
cannot be justified under the Act as setting forth only a de
minimus threshold.
12a
court correctly concluded that Baeder did not present
the Secretary with an opportunity to develop a de
minimus standard, as SSR 85-28 attempts to do.
See Wilson, 622 F.Supp. at 653. As the district court
held, Baeder’s invalidation of section 404.1520(c)
forecloses the Secretary from applying that regula-
tion in any way.°
ITI.
We finally turn to the Secretary’s contention that
the district court improperly imposed time deadlines
on him in violation of the decision in Heckler v. Day,
467 U.S. 104, 104 S.Ct. 2249, 81 L.Ed.2d 88 (1984).
We review this contention under the abuse of discre- |
tion standard. See Tustin, 749 F.2d at 1060; see also |
Day, 104 S.Ct. at 2253. |
In Day, the Supreme Court invalidated an injunc- |
tion issued in a class action that imposed deadlines
on the Secretary to issue reconsideration determina-
tions and conduct hearings. Recognizing that Con- |
gress had repeatedly considered and rejected imposing )
mandatory deadlines on agency adjudication of dis- |
putes in disability claims under Title II of the Social |
Security Act, the Day Court ruled that “it would be ;
an unwarranted judicial intrusion into this perva- ;
sively regulated area for federal courts to issue in-
junctions imposing deadlines with respect to future
disability claims.” Jd. at 2258.
In the instant case, the district court carefully
considered the scope of Day’s proscription of setting
time limits on the Secretary’s administrative process.
° Because we conclude that SSR-85-28 violates the holding
of Baeder, we need not address appellees’ contention that
SSR-85-28 is unlawful because the Secretary failed to comply
with the procedural safeguards of the Administrative Pro-
cedure Act and Social Security Act.
18a
In fashioning its order granting injunctive relief, the
district court distinguished between time limits on
the Secretary’s internal procedures for claim ad-
judication and limits relating to implementation of
the injunction. Contrary to the Secretary’s assertion,
the court did not impose mandatory deadlines on the
shipment and reconstruction of claims files. As for
other actions concerning the Secretary’s internal ad-
judicatory procedures, the court required only the
Secretary’s “best efforts” in meeting the court’s time
guidelines. The court made clear that compliance
with these guidelines was “hoped for, but not re-
quired.” Wilson, 622 F.Supp. at 660. The Secretary
also maintains, however, that the timetables for iden-
tification and notification of class members violated
Day. Although the deadlines for these actions were
mandatory, we believe that the district court prop-
erly classified these actions separately from those
concerning the Secretary adjudicatory procedures. In
establishing mandatory deadlines for identifying and
notifying class members, the court sought only to
insure that claims denied under the invalid severity
regulations would be placed in a position to be rede-
termined.’ Accordingly, we hold that the district
court did not contravene the teachings of Day in is-
suing its order.
IV.
For the reasons explained above, we find no error in
the district court’s decision to issue a preliminary
® We further note that prior to granting the preliminary
injunction, the district court solicited the Secretary’s sug-
gestions on the timing of the injunctive relief. In setting the
mandatory deadlines in its order, the court deferred to the
Secretary and, for the most part, adopted his suggestions.
See Wilson, 622 F.Supp. at 660-61.
l4a
injunction in this case. Nor do we believe that the
district court abused its discretion in establishing
timetables for effecting the relief it granted. We
nevertheless find that the following language from
the court’s November 14, 1985 order may be read
to provide for a preliminary injunction that is
broader than the court had authority to issue:
It is FURTHER ORDERED that plaintiffs’
motion for a preliminary injunction is GRANTED
and that, pending a final determination of this
action, defendant, her agents, servants, employ-
ees and their successors:
1. Are enjoined from denying or terminating
Social Security Disability or Supplemental Sec-
urity Income benefits due to the policies set
forth in 20 C.F.R. §§ 404.1520(c) and .1521,
416.920(c) and .921 (1983), and Social Security
Ruling 81-55 (1982)....
This paragraph does not indicate that the injunction
covers only the Secretary’s adjudication of claims
submitted by persons in the State of New Jersey.
Because the class of plaintiffs in this action is con-
fined to individuals who were domiciled in New Jersey
at the time of their most recent administrative deci-
sion, we hold that the scope of preliminary injunc-
tion should be similarly circumscribed. Cf. Baeder,
768 F.2d at 553. Therefore, we will vacate the above-
quoted portion of the November 14, 1985 order of
the district court and will remand the matter for
clarification of the preliminary injunction’s scope.
The November 14, 1985 order will be affirmed in all
other respects.
a
15a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 85-5814 and 86-5072
JOHN WILSON and MARY CHRISTOPHER, ET AL.
Vv.
SECRETARY OF HEALTH AND HUMAN SERVICES
Pursuant to Rule 41(b) of the Federal Rules of
Appellate Procedure, it is ORDERED that issuance
of the certified judgment in lieu of formal mandate
in the above cause be, and it is hereby stayed until
September 3, 1986.
/s/ \[Illegible]
Circuit Judge
Dated: Aug. 18, 1986
l6a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 85-5814 and 86-5072
JOHN WILSON, ET AL.
Vv.
SECRETARY OF HEALTH AND HUMAN SERVICES
Pursuant to Rule 41(b) of the Federal Rules of
Appellate Procedure, it is ORDERED that issuance
of the certified judgment in lieu of formal mandate
in the above cause be, and it is hereby stayed until
December 2, 1986.
/s/ \[Ilegible]
Circuit Judge
Dated: September 16, 1986
17a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 85-5814
No. 86-5072
JOHN WILSON and MARY CHRISTOPHER,
on their own behalf, and on behalf
of others similarly situated, APPELLEES
Vv.
OTIS R. BOWEN, M.D.
SECRETARY OF HEALTH AND HUMAN SERVICES,
APPELLANT
(Civil Action No. 83-3771—D.N.J.—Camden )
SUR PETITION FOR REHEARING
Present: ALDISERT, Chief Judge, SEITZ, ADAMS,
WEIS, HIGGINBOTHAM, SLOVITER, BECKER,
STAPLETON, MANSMANN, and HUNTER,
Circuit Judges.
The petition for rehearing filed by appellant in the
above entitled case having been submitted to the
judges who participated in the decision of this court
and to all the other available circuit judges of the
circuit in regular active service, and no judge who
concurred in the decision having asked for rehearing,
18a
and a majority of the circuit judges of the circuit in
regular active service not having voted for rehearing
by the court in banc, the petition for rehearing is
denied.
By the Court,
/s/ [Illegible]
Circuit Judge
DATED: Sept. 3, 1986
19a
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 83-8771
JOHN WILSON and MARY CHRISTOPHER, on their own
behalf, and on behalf of others similarly situated,
PLAINTIFFS
v.
HON. MARGARET M. HECKLER, SECRETARY OF HEALTH
AND HUMAN SERVICES, DEFENDANT
[Filed Oct. 10, 1985]
ORDER
This matter having come before the court on the
9th day of October, 1985; and
The court having considered the submissions and
arguments of the parties, with a full opinion to be
issued within ten (10) days,
It is on this 9th day of October, 1985, hereby
ORDERED that:
1. Plaintiffs may maintain this action as a class
action pursuant to Fed. R. Civ. P. 28(a) and
23(b)(2), the class being defined as follows:
All persons in the State of New Jersey who have
filed or will file applications for disability bene-
20a
fits under Title II and/or Title XVI of the Social
Security Act, as amended, and whose benefits
have been or will be denied or terminated based
upon a finding of no severe impairment pursu-
ant to the policies set forth in 20 C.F.R.
§§ 404.1520(c) and .1521, 416.920(c) and .921
(1983), and Social Security Ruling 82-55
(1982). |
The plaintiff class does not include, at this time,
any such persons who received decisions of the
Secretary on or before July 25, 1984 and who
failed to file a Complaint in Federal District
Court or to appeal to the next level of adminis-
trative review, within 60 days after the date of
receipt of such decision.
2. The parties shall submit a joint proposed order
for injunctive relief to the court within three (3)
weeks. If the parties are unable to fashion a mu-
tually satisfactory order, each shall submit its own
version and the court will determine the appropriate
scope of and timetable for injunctive relief.
No costs.
/s/ Stanley S. Brotman
STANLEY S. BROTMAN
U.S.D.J.
2la
APPENDIX F
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 83-3771
JOHN WILSON and MARY CHRISTOPHER, on their own
behalf, and on behalf of others similarly situated,
PLAINTIFFS
v.
Hon. MARGARET M. HECKLER, SECRETARY OF HEALTH
AND HUMAN SERVICES, DEFENDANT
[Filed. Oct. 28, 1985]
22a
OPINION
BROTMAN, District Judge
This is an action for declaratory and injunctive
relief against the Secretary of Health and Human
Services (“Secretary”), challenging her policy of
denying or terminating disability benefits under the
Supplemental Security Income (“SSI”) and Old Age
Survivor and Disability Insurance (“OASDI’) pro-
grams solely on the basis that claimants’ impair-
ments are not medically “severe” and without any
consideration of each claimant’s age, education, work
experience, residual functional capacity or ability to
return to his or her former work. In July 1985, the
Third Circuit declared the Secretary’s non-severe im-
pairment regulation, 20 C.F.R. § 404.1520(c), —and,
implicitly, the challenged policy—invalid. Baeder v.
Heckler, 768 F.2d 547 (8rd Cir. 1985).
The Secretary did not appeal the Baeder decision
and defends against the instant motions for class
certification and preliminary injunctive relief by con-
tending that her new policy, as articulated in an as
yet unpublished interpretive ruling, fully complies
with the Third Circuit’s holding. For the reasons
discussed in this opinion, the court finds that the
Secretary’s new policy directiy contradicts the hold-
ing of Baeder. Plaintiffs’ motions for class certifica-
tion and preliminary injunctive relief will be granted.
I. Procedural Background
John Wilson initiated this action on October 11,
1983 when he appealed the denial of his application
for disability insurance and SSI benefits to this court.
That denial was based on a finding that Wilson suf-
fered from no severe medical impairment; the Ad-
23a
ministrative Law Judge (“ALJ”) never considered
vocational factors. Plaintiff Mary Christopher was
also denied disability and SSI benefits at the admin-
istrative level on the grounds of no severe medical
impairment without consideration of vocational fac-
tors. Christopher’s administrative appeal was pend-
ing before the Appeals Council when she joined Wil-
son as a named representative of the proposed class."
On October 1, 1984, plaintiffs filed motions for
leave to file an amended complaint, preliminary in-
junctive relief and class certification. After two
rounds of briefs, the court heard oral argument on
those motions on December 7, 1984 and reserved deci-
sion. On February 1, 1985, the court issued an opin-
ion and order which allowed plaintiffs to incorporate
new documentary material into the record but did
not address the central issues. In August, at the
court’s request, the parties submitted supplemental
comments in light of the Third Circuit’s July 24,
1985 decision in Baeder v. Heckler, 768 F.2d 547
(8rd Cir. 1985).
After the Secretary decided not to seek further
appellate review of Baeder, she presented to Hon.
Clarkson S. Fisher, Chief Judge of the District of
Pursuant to that appeal, the Appeals Council reversed the
ALJ and granted Christopher’s application for benefits. De-
fendant argues that Christopher is therefore an improper
representative for the proposed class. Plaintiffs argue, and
the court agrees, that Christopher may continue to represent
the class because she was a valid representative when the mo-
tion for class certification was filed in October 1984. More-
over, the court notes that if Christopher’s successful appeal
were a bar to her ability to represent the class, the Secretary
could hypothetically moot this and similar actions merely by
granting benefits to the named plaintiffs and their replace-
ments.
24a
New Jersey, an order to show cause why all identi-
fied cases pending in the district should not be con-
solidated and remanded for review in accordance
with Baeder. Chief Judge Fisher signed the order
on September 16, 1985, making it returnable October
10, 1985.?
In light of Chief Judge Fisher’s order, plaintiffs
requested that this court accelerate its consideration
of the instant motions for class certification and pre-
liminary injunctive relief. At a September 26, 1985
conference with both parties, this court entered an
order to show cause, returnable October 9, 1985,
why class certification and preliminary injunctive re-
lief should not be granted. On that date, the court
also signed an order allowing plaintiffs to file their
amended class action complaint.
After oral argument at the October 9, 1985 hear-
ing, this court entered an order which certified the
proposed class under Fed. R. Civ. P. 23(a) and
23(b)(2) and instructed the parties to submit a
joint proposed order for injunctive relief to the court
within three weeks.*
2 Cases invoking the severity regulation which were pending
before the Hon. Dickinson R. Debevoise are already being
remanded pursuant to an earlier order to show cause signed
by Judge Debevoise on September 10, 1985. Similarly, on
May 10, 1985, the Hon. Harold A. Ackerman issued an order
to show cause and subsequently remanded cases pending be-
fore him despite the pending appeal in Baeder, in light of the
district court’s decision in that case. Baeder v. Heckler, Civ.
No. 83-3338 (D.N.J. 1984) (Gerry, J.).
3 The order defined the class as follows:
All persons in the State of New Jersey who have filed or
will file applications for disability benefits under Title II
and/or Title XVI of the Social Security Act, as amended,
25a
II. Statutory Framework
The Social Security Act (“Act”) defines “disabil-
ity” as “the inability to do 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 ex-
pected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). Un-
der the Act, a person is considered disabled “only if
his physical or mental impairment or impairments
are of such severity that he is not only unable to do
his previous work but cannot, considering his age,
education and work experience, engage in any other
kind of substantial gainful work which exists in the
national economy... .” 42 U.S.C. § 423(d) (2) (A).
Regulations promulgated by the Secretary under
the Act set forth a five-step sequential evaluation
procedure to determine whether a claimant is dis-
and whose benefits have been or will be denied or termi-
nated based upon a finding of no severe impairment pur-
suant to the policies set forth in 20 C.F.R. §§ 404.1520 (a)
and .1521, 416.920(c) and .921 (1983), and Social Secu-
rity Ruling 82-55 (1982).
The plaintiff class does not include, at this time, any
such persons who received decisions of the Secretary on
or before July 25, 1984 and who 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 receipt of such decision.
The order further provided that if the parties were unable
to fashion a mutually satisfactory order, each should submit
its own version so the court could determine the appropriate
scope of and timetable for injunctive relief.
The court notes that SSR 82-55 was rescinded (or, in the
words of the Secretary, “obsoleted without replacement’) by
SSR 85-III-II (April 1985).
26a
abled. 20 C.F.R. § 404.1520(a)-(f). The first step
of the sequential evaluation requires the claimant to
demonstrate that he is not currently working.* If he
is, the claim will be denied at that point. 20 C.F.R.
§ 404.1520(b). Second, the claimant must show,
solely on the basis of medical evidence, that his im-
pairment is “severe.” In other words, unless the im-
pairment “significantly limits [his] physical or men-
tal ability to do basic work activities,” the claim will
be denied summarily, without reference to the claim-
ant’s age, education and work experience. 20 C.F.R.
§ 404.1520(c).°
Third, if the impairment is as severe as those listed
in Appendix 1 of the regulations, 20 C.F.R. Part 404,
Subpart P, the claimant will receive benefits without
regard to vocational factors. 20 C.F.R. § 404.1520
(d).° Fourth, if the impairment is less severe than
those listed in Appendix 1, the claimant must show
that his impairment impedes him from performing
* Since the Secretary’s regulations use the masculine pro-
noun to refer to all categories of claimants, this court will do
likewise. No gender bias is intended or should be inferred.
5 The severity regulation, 20 C.F.R. § 404.1520(c), reads in
full:
(c) You must have a severe impairment. If you do
not have any impairment or combination of impairments
which significantly limits your physical or mental ability
to do basic work activities, we will find that you do not
have a severe impairment and are, therefore, not disabled.
We will not consider your age, education, and work ex-
perience. However, it is possible for you to have a period
of disability for a time in the past even though you do not
have a severe impairment.
* Appendix 1 fills 33 pages in the Code of Federal Regula-
tions with detailed criteria for determining whether a par-
ticular impairment qualifies as severe.
27a,
his past work. If he can perform his past work, his
claim will be denied at this fourth step. 20 C.F.R.
§ 404.1520(e). Fifth, if the claimant cannot per-
form his past work, the Secretary must consider his
“residual functional capacity” (i.e. the level of work
he can perform, based on medical evidence, despite
his impairment), age, education, and prior work ex-
perience, 20 C.F.R. § 404.1520(f).
In Baeder, the Third Circuit held that the severity
regulation, 20 C.F.R. § 404.1520(c), which is the
second step of the sequential evaluation, “is incon-
sistent with the Social Security Act, and therefore, is
invalid.” Baeder, supra, 768 F.2d at 553. The
Baeder court reviewed the regulation’s language and
history as well as statistical evidence in regching its
decision. This court need not repeat th€ analysis,
except to note that since 1982, “a full forty percent”
of disability applicants have been denied benefits
without any evaluation of their age, education or
past relevant work experience. Jd. at 552. The Third
Circuit summarized the reasons for its holding as
follows:
We believe that section 1520(c) of the regula-
tions does more than allow the Secretary to deny
benefits summarily to those applicants with im-
pairments of a minimal nature which could
never prevent a person from working. It also
allows the Secretary to bypass a full-scale evalu-
ation, which would consider and relate both
medical and vocational factors, of an applicant
who might actually be entitled to benefits were
his age, education and work experience consid-
ered. We cannot analyze the severity regulation
except according to its plain language and the
manner in which the Secretary uses it. We will
not rewrite the regulation to make it conform to
28a
the statutory mandate, although other courts
have directed the Secretary_te- apply the regula-
tion only to bar the claims of those with de
minimis medical complaints.
Id. at 553 (footnotes and citations omitted).
In Baeder, the Secretary tried to justify the severe
impairment regulation as a de minimus standard
intended only to screen out those applicants whose
medical problems “could not possibly prevent them
from working.” Jd. at 552. The Secretary further
contended that as applied, the regulation’s scope ex-
tended to a consideration of vocational factors. The
Third Circuit posited that if the Secretary were to
apply the regulation in that way, it “might find that
it implicitly considered vocational factors and there-
fore was consistent with the statute.” Jd. But be-
cause the court expressly found that the Secretary
was not applying the severity regulation as a de
minimis requirement, it did not hesitate to invalidate
the regulation.
In the instant case, the Secretary argues that class
certification and preliminary injunctive relief are
unnecessary because she has voluntarily requested
that all pending cases in the District of New Jersey
which involve the severity regulation be remanded
for review “in accordance with Baeder.” Defendant’s
Supplemental Memorandum at 3. In support of her
argument that she intends “to review these claims on
remand in a manner acceptable to the [Third Cir-
cuit],” the Secretary proffers a new Social Security
Ruling (“new SSR”) that was signed on September
17, 1985 and will be issued and applied shortly. The
new SSR, as yet unnumbered, purports to interpret
and clarify the Secretary’s policy regarding the
29a
severity of impairments and to reflect recent circuit
court decisions, including Baeder. See SSR, Titles
II and XVI: Medical Impairments That Are Not
Severe, Exhibit I to Defendant’s Supplemental Memo-
randum.
The Secretary’s interpretation of Baeder, as out-
lined in the new SSR, is that the severity regulation
may still be applied as a de minimis standard, taking
certain vocational factors into account at the second
step of the sequential evaluation. The court em-
phatically disputes that interpretation.
After describing the regulation’s legislative and
semantic history, the new SSR describes itself as
“part of the ongoing reevaluation [which] interprets
and clarifies the current policy on not severe impair-
ment, describes the threshold intended, and reflects
recent legislation.” New SSR at 4. The new SSR
adds that its purpose is “to clarify that [the Social
Security Administration’s] policy is consistent with
various court decisions,” id., in particular Stone v.
Heckler, 752 F.2d 1099 (5th Cir. 1985), Estran v.
Heckler, 745 F.2d 340 (5th Cir. 1984), and Baeder.
While the new SSR may well comply with the Fifth
Circuit’s holdings in Stone and Estran, it directly
contradicts the Third Circuit’s holding in Baeder. In
fact, even in asserting its alleged compliance with
Baeder, the new SSR boldly lifts the Third Circuit’s
language and quotes it wholly out of context.
The new SSR states flatly that Baeder suggested
that “the severity regulation is to do no ‘more than
allow the Secretary to deny benefits summarily to
those applicants with impairments of a minimal na-
ture which could never prevent a person from work-
ing.’”’ New SSR at 5, citing Baeder, supra, 768 F.2d
at 553 (emphasis added). The three underscored
30a
words surreptitiously replace one verb—“does”—and
thus the sentence completely misrepresents the Third
Cireuit’s original meaning.’ This court will not coun-
tenance the Secretary’s blatant manipulation of the
Third Circuit’s language and intent, The Secretary’s
interpretation of Baeder, as explained at length in
the new SSR, can simply not be supported by the
Third Circuit’s plain language. The Third Circuit
invalidated the severity regulation and barred the
Secretary from applying it in Baeder’s case. It went
further and noted that its opinion “compels this
court to overturn any denial of benefits made because
the Secretary and the ALJ concluded that the appli-
cant’s impairment was not severe enough, without
reference to vocational factors, to meet 20 C.F.R.
§ 404.1520(c).” Baeder, supra, 768 F.2d at 553, n.5.
Baeder did not present the Secretary with an op-
portunity to develop a de minimis standard, as she
purports to do in the new SSR. Rather, the court in-
dicated that had the Secretary applied the regulation
in a de minimis fashion in the past instead of using
it as an unreasonably high threshold, it might then
have upheld that past practice. Baeder’s invalidation
of 20 C.F.R. § 404.1520(c) simply forecloses the Sec-
retary from applying or interpreting that section in
any way.
Ordinarily, the judicial review of regulations pro-
mulgated under the Act is limited to whether the
regulations exceed the Secretary's statutory authority
and whether they are arbitrary and capricious. Heck-
ler v. Campbell, —— U.S. ——, 108 S.Ct. 1952, 1957
™The original sentence read: “We believe that section
1520(c) of the regulations does more than allow the Secre-
tary to deny benefits summarily... .” 768 F.2d at 553 (em-
phasis added).
3la
(1983). Because the Third Circuit has already ruled
on the invalidity of the non-severe impairment regu-
lation, and because the new SSR continues to apply
the invalidated regulation, the court holds that the
new SSR is arbitrary and capricious for its patent
disregard of Third Circuit precedent.’
III. Preliminary Injunctive Relief
Plaintiffs seek a preliminary injunction (1) pro-
hibiting the Secretary from denying or terminating
OASDI or SSI benefits due to the asserted non-
severity of the claimant’s impairments; (2) directing
the Secretary to initiate or restore payments of
benefits to all members of the proposed class who
(a) received decisions denying or terminating bene-
fits that were rendered at any stage of the adminis-
trative process on or after July 26, 1984; or (b) had
pending challenges to such decisions on July 26,
1984; and (3) directing the Secretary to reopen the
applications of all class members whose applications
for benefits have been denied at any stage of the
administrative process since July 26, 1984 and to
redetermine those applications without reference to
20 C.F.R. § 404.1520(c).
The standard for evaluating a motion for a pre-
liminary injunction was recently reiterated by the
® Plaintiffs also contend that the new SSR is unlawfui be-
cause the Secretary violated the notice and comment proce-
dures of the Administrative Procedure Act, 5 U.S.C. § 553,
by failing to inform the public that the new ruling represents
a major change in the substantive standards by which dis-
ability benefit claims will be evaluated. In view of the court’s
conclusion that the new SSR contradicts the holding of Baeder
by continuing to apply the invalidated severity regulation, the
APA issue need not be reached.
cilia
32a
Third Circuit in Si Handling Systems, Inc. v. Heisley,
753 F.2d 1244 (8rd Cir. 1985). The court must
consider four factors: (1) whether the moving party
has shown a reasonable probability of success on the |
merits; (2) whether the moving party will suffer
irreparable injury if preliminary injunctive relief is |
denied; (3) whether the balance of hardships tips
toward or away from the moving party; and (4)
whether granting preliminary relief would be in the
public interest. See also Klitzman, Klitzman and
Gallagher v. Krut, 744 F.2d 958, 959 (8rd Cir.
1984) ; Continental Group v. Amoco Chemicals Corp.,
614 F.2d 351, 356, 357 (3rd Cir. 1980).
In light of Baeder and of the new SSR, the court
believes that plaintiffs would prevail on the merits
with respect to the requested injunctive relief. Con-
trary to the Secretary’s assertion, the Baeder opinion
does not “obviate the need for injunctive relief.”
Defendant’s Supplemental Memorandum at 16. The
Baeder court did refuse to affirm the district court’s
“all-encompassing” injunction barring the Secretary
from conducting any proceedings whatsoever using
the severe impairment regulation. Baeder, supra,
768 F.2d at 550, 553. However, the Third Circuit
noted that it did so because the district court did
not have the authority to issue so broad an injunction
in the context of an individual disability appeal. Jd.
In contrast, the instant action is appropriate for such
relief since plaintiffs seek an injunction in the con-
text of a motion to certify a broad class of disability
applicants.
Denial or termination of disability benefits can
cause immediate, irreparable injury that cannot be
compensated by a retroactive award at some future
date. Before named plaintiff Christoper was awarded
33a
benefits by the Appeals Council, she had no inde-
pendent source of income and relied solely on her
husband’s Social Security retirement benefits and
other savings. She had foregone new clothes and
medical care and had closed off several rooms of
her house to save energy costs. Affidavit of Mary
Christopher, September 7, 1984 (“Christopher Aff.’’).
Named plaintiff Wilson and his wife share a com-
bined Social Security retirement income of $747.00 a
month. To stretch that stipend, he sometimes helps
a friend collect waste cardboard for between $7.00
and $10.00 a week. Wilson too has foregone regular
medical treatment because he lacks the Medicare
insurance for which an award of disability benefits
would qualify him. Affidavit of John Wilson, October
1, 1984 (“Wilson Aff.’’).
The proposed class encompasses people who are
elderly, sick, disabled and poor. In many, if not
most, cases, the physical and mental suffering that
prompts a person to seek disability benefits is accom-
panied by economic hardship when those benefits are
terminated or denied.® In similar cases, several
courts have concluded that the loss of benefits consti-
tutes irreparable harm. See, e.g., Lopez v. Heckler,
572 F. Supp. 26 (C.D. Cal. 1983) (“Retroactive re-
lief [for plaintiffs] would be inadequate and perhaps
too late, to insure that the purpose of Social Security
benefits, i.e., provision of a minimum standard of
living for the poor and disabled, will be served.’’),
* Defendant argues that in contrast to people whose bene-
fits are terminated, people whose initial applications are
denied suffer no financial hardship because they never re-
ceived any benefits and thus nyer relied on tiff as a source
of income. The court rejects this argument for the reasons set
forth in the body of this opinion.
BEST AVAILABLE COPY
34a
affd in part, rev’d in part, 725 F.2d 1489 (9th
Cir. 1984), cert. granted, case vacated and remanded,
U.S. ——, 105 S.Ct. 588 (1984); Leschniok v.
Heckler, 713 F.2d 520, 524 (9th Cir. 1983) (“We
fail to comprehend the Secretary’s argument that
financial compensation at some future date should the
claimants survive and prevail, mitigates the hardship
which is visited upon claimants and their families
each and every day.”) ; Caswell v. Califano, 583 F.2d
9, 14 (1st Cir. 1978) (“It is simply not true that a
claimant for disability benefits, not infrequently in
dire financial circumstances due to his disability, is
truly made whole by retroactive payments which he
hashed had to survive well over a year without.’) ;
Tustin v. Heckler, 591 F. Supp. 1049 (D.N.J.),
vacated in part and remanded, 749 F.2d 1055 (8rd
Cir. 1984) (plaintiffs face a “future injury of un-
certain date and incalculable magnitude” if the ter-
minated benefits are not restored).
The Secretary does not argue strongly that the
balance of hardships tips in her favor. She contends
that preliminary injunctive relief will impose a tre-
mendous administrative burden, but this argument
is effectively mooted since the court has provided the
Secretary with an opportunity to participate in draft-
ing a joint proposed order specifically so that she may
suggest time limits that will not be unduly burden-
some for, inter alia, notifying class members, reopen-
ing cases and holding hearings. Even if the Secre-
tary were to argue that the administrative expense
were prohibitive, the court would not be persuaded
to deny preliminary relief. “Faced with such a con-
flict between financial concerns and preventable hu-
man suffering, we have little difficulty concluding
that the balance of hardships tips decidedly in plain-
35a
tiffs’ favor.” Lopez v. Heckler, 713 F.2d 14382, 1437
(9th Cir. 1983) (emergency motion for partial stay
pending appeal in Lopez, supra, 572 F. Supp. 26,
denied).
The public good strongly favors the issuance of an
injunction ensuring that individuals who are disabled
are not summarily denied by virtue of the Secretary’s
applications of an arbitrary and decidedly illegal
threshold severity test. Thus, at least two other
courts have issued preliminary injunctions in class
action challenges to these severity regulations. Dixon
v. Heckler, No. 88 Civ. 7091 (S.D.N.Y. June 22,
1984) ; Smith v. Heckler, 595 F. Supp. 1173 (E.D.
Cal. 1984).
Plaintiffs argue additionally that preliminary in-
junctive relief is necessary in light of the Secretary’s
policy of nonacquiescence in judicial decisions inter-
preting the Act. See Stieberger v. Heckler, No. 84-
130 (S.D.N.Y. August 19, 1985); Kuehner v.
Schweiker, 717 F.2d 813, 816 (8rd Cir. 1983). The
Secretary contends that her new SSR contradicts any
suggestion of nonacquiescence since it specifically an-
nounces the Secretary’s intent to comply with deci-
sions of the Third and Fifth Circuits. However, as
discussed at length supra, the new SSR in no way
complies with either the letter or the spirit of Baeder.
Accordingly, the court finds that the new SSR repre-
sents a policy of constructive nonacquiescence and
agrees with plaintiffs that preliminary injunctive re-
lief is strongly warranted.
IV. Class Certification
A. Fed. R. Civ. P. 28
Plaintiffs move to certify the proposed class under
Fed. R. Civ. P. 23(a) and 23(b) (2) and have shown
that they satisfy the four requirements—numerosity,
36a
commonality, typicality and adequacy of representa-
tion—of Rule 23(a).
The proposed class would be “so numerous that
joinder of all members is impracticable.” Fed. R.
Civ. P. 23(a)(1). Statistics for the fifteen months
since July 26, 1984 (the date the class opens) are
not part of the record, but since 1979, when the non-
severe impairment regulations were promulgated, the
percentage of denials at this second step has hovered
around 40 percent.’® In the fiscal year 1982, for ex-
ample, the most recent year for which the parties
have supplied numerical data, the Secretary made
nearly 900,000 initial disability determinations on
Title II claims, of which 72 percent were denied.
Forty percent of these denials—261,000—were based
on a finding that the claimant suffered from no severe
medical impairment, so vocational factors were never
considered. The court takes judical notice of the
fact that approximately three percent (8%) of the
nation’s population lives in New Jersey. Therefore,
in fiscal year 1982, it is probable that more than
7,000 disability applicants were denied because the
Secretary applied the regulation the Third Circuit
invalidated in Baeder. While plaintiffs have not iden-
tified all members of the proposed class—indeed, they
cannot, and part of the requested injunctive relief
will direct the Secretary to identify class members—
they have satisfied the numerosity requirement. See
1° House Comm. on Ways and Means, 98th Cong., 1st Sess.,
Background Material and Data on Major Programs Within
Jurisdiction of the Committee on Ways and Means, at 79
(Table 3) (Comm. Print Feb. 8, 1983).
11 New Jersey has 17 of the nation’s 538 electoral votes,
which are distributed based on census data. Seventeen is
aproximately three percent of 538.
37a
Lugo v. Heckler, 98 F.R.D. 709, 714 (E.D. Pa. 1983) ;
Johnson v. Heckler, 593 F. Supp. 875 (N.D. IIl.
1983), motion to alter or amend order denied, 607
F’. Supp. 875 (1984).
In considering the requirements of commonality,
typicality and adequacy of representation, the court
looks first at the named plaintiffs and how the chal-
lenged policies have affected them. Wilson, a junk-
yard laborer for 40 years, suffers from, inter alia,
asthma, chronic obstructive lung disease, and osteo-
arthritis. The ALJ called Wilson’s asthmatic condi-
tion a non-exertional environmental restriction, de-
spite evidence that Wilson’s past work environment
aggravated his pulmonary ailments. Wilson Aff. The
ALJ never considered the severity of Wilson’s im-
pairments in combination, never determined his resid-
ual functional capacity, and denied his claim sum-
marily at the second step of the sequential evalua-
tion. The Appeals Council upheld the ALJ’s decision
and Wilson’s judicial appeal has been pending in
this court since 1983.
Although plaintiff Mary Christopher’s initial denial
was recently reversed by the Appeals Council on other
grounds, her appeal was pending at the time the
motion for class certification was filed. As discussed
supra, she may continue as a proper class represen-
tative. The ALJ found that Christopher had de-
generative joint disease of the neck but that she did
not suffer from a severe impairment and was there-
fore not eligible for disability benefits, despite a
consulting physician’s report finding a radiculopathy
from the cervical area to the left shoulder and arm.”
Christopher had worked for 40 years as a sewing
12 “Radiculopathy” is a disease of the nerve roots. Dorland’s
Illustrated Medical Dictionary (25th Ed. 1974).
38a
machine operator and stopped in 1982 because she
could no longer lift her left arm. Regardless of the
testimony of a vocational expert to that effect, the
ALJ never considered vocational factors or deter-
mined Christopher’s residual functional capacity. See
Christopher Aff.
Like members of the class they propose to repre-
sent, the named plaintiffs were denied benefits be-
cause the Secretary applied the regulation which the
Third Circuit invalidated in Baeder. They seek the
opportunity to have the final determination of dis-
ability focus on all relevant factors mandated by the
Act. There is no potential for conflict among class
members because all of them want their individual
cases to be evaluated fairly, with all relevant factors
taken into account. Furthermore, plaintiffs’ counsel
has considerable experience in Sociai Security litiga-
tion and will ably represent the interests of the class.
Declaration of Richard Yaskin, October 1, 1984,
{§ 14-16. Accordingly, the commonality, typicality
and adequacy of representation requirements of Fed.
R. Civ. P. 23(a) are satisfied.
Plaintiffs have defined the class by reference to the
scope of the Secretary’s challenged policies. It is
clear that the Secretary has acted or refused to act
on grounds generally applicable to the class, thereby
making injunctive or declaratory relief with respect
to the class as a whole appropriate. Fed. R. Civ. P.
23(b) (2). See Alliance to End Repression v. Roch-
ford, 565 F.2d 975, 978 (7th Cir. 1977).
Two other district courts have recently certified
class actions which challenged the severity regula-
tions at issue here. Dixon, supra, No. 83 Civ. 709
(S.D.N.Y. June 22, 1984); Smith, supra, 595 F.
Supp. 1173. District judges in New Jersey have also
39a
certified class actions challenging other applications
of the Secretary’s regulatory authority. Tustin,
supra, 591 F. Supp. 1049; Rivera v. Heckler, No.
82-3331 (D.N.J. 1983) (Lacey, J.). See generally
Kuehner v. Schweiker, 717 F.2d 813 (8rd Cir. 1983).
8. The Jurisdictional Requirement of § 405(g)
A class may be certified under the Act only if each
prospective class member individually satisfied the
jurisdictional requirements of 42 U.S.C. § 405(g).”
Califano v. Yamasaki, 442 U.S. 682, 701, 704 (1979) ;
Mathews v. Diaz, 426 U.S. 67, 71 n.3 (1976) ; Wein-
berger v. Salfi, 422 U.S. 749, 764 (1975).
Section 405(g) provides that a claimant may ob-
tain judicial review only after the Secretary renders
a “final decision” on his application for benefits after
a hearing to which he was a party. Pursuant to her
rulemaking authority under 42 U.S.C. § 405(a), the
Secretary has determined that a final decision is ren-
dered on a claim under Title II or Title XVI only
after the Appeals Council has either issued a decision
or denied a claimant’s request for review. See, Heck-
ler v. Ringer, — U.S. —, 104 S.Ct. 2013 (1984) ;
Salfi, supra, 422 U.S. at 765; 20 C.F.R. §§ 404.900
(a) (5), 404.981, 416.1400 (a) (5), 416.1481. In short,
the Secretary’s regulations require full exhaustion of
administrative remedies prior to judicial review."*
13 The jurisdictional requirements of § 405(g), which refers
to Title II claims, are incorporated in 42 U.S.C. § 1883 (c)
for Title XVI claims.
14The exhaustion requirement of § 405(g) consists of a
waivable element, discussed in the body of the opinion, and a
nonwaivable requirement that a “claim for benefits shall
have been presented to the Secretary.” Ringer, supra, 104
S.Ct. at 2023, citing Eldridge, supra, 424 U.S. at 328. Plain-
40a
As certified, the class included “[a]ll persons in the
State of New Jersey who have filed or will file ap-
plications for disability benefits . . . and whose bene-
fits have been or will be denied or terminated based
upon a finding of no severe impairment. .. .” Order
of October 9, 1985. The cutoff date for the class as
now defined is July 26, 1985, so claimants who re-
ceived decisions of the Secretary before that date
and who failed either to file a complaint in federal
district court or to appeal to the next administrative
level within 60 days after receiving such decision.”
The court notes as a preliminary matter that it may
see fit to broaden or narrow the temporal scope of
the class in the future.
The class includes a subclass of disability appli-
cants who may have received a decision of the Secre-
tary on or after July 26, 1984 and failed to appeal
it within the requisite 60 days. Defendant argues
strenuously that the failure to exhaust administra-
tive remedies automatically bars those persons from
inclusion in any class which may obtain injunctive
relief. However, members of this subclass are prop-
erly included in the certified class because they fall
within a judicially created exception to the exhaus-
tion requirement of section 405(g).
tiffs in this action have satisfied the presentment requirement
by virtue of their applying for benefits, in the case of class
members whose claims were denied, or their having applied
for and received benefits in the past, in the case of class
members whose benefits were terminated.
18 The class actually includes claimants who received final
administrative decisions within 65 days of the filing of the
instant motions since the regulations presume that a decision
is received within five days of mailing. 20 C.F.R. § 422.210(c)
(1981).
4la
The Supreme Court has held that the Secretary may
waive the exhaustion requirement and that the courts
are also empowered to do so in appropriate circum-
stances. Mathews v. Eldridge, 424 U.S. 319 (1976) ;
Diaz, supra, 426 U.S. at 76. In permitting certifica-
tion of a class of Title XVI recipients whose benefits
had been reduced or terminated, the Third Circuit
held that exhaustion of administrative remedies could
be properly waived by the court if the legal issue
presented was statutory and if the Secretary had as-
sumed a fixed and final position. Liberty Alliance of
the Blind v. Califano, 568 F.2d 333, 345-46 (3rd Cir.
1977), citing Eldridge, supra. More recently, the
Third Cireuit applied Liberty Alliance to find § 405
(g) jurisdiction despite the lack of exhaustion of
remedies by members of a proposed class. Kuehner
v. Schweiker, supra. The majority looked at whether
the Secretary had taken a fixed and final position,
thereby rendering exhaustion futile. A concurring
opinion by Judge Becker observed that the Supreme
Court’s decisions in Eldridge and Salfi had identified
two further criteria: (1) the unexhausted claim must
be at least substantially collateral to the question of
whether plaintiffs should continue to receive disability
benefits; and (2) requiring exhaustion must impose
substantial hardship on, or cause irreparable harm
to, plaintiffs. Kuehner, supra, 717 F.2d at 822.
The Secretary contends that her position on the
issue of non-severe impairment is fluid, not “fixed
and final,” and points to her new SSR to prove her
point. But the new SSR does not represent changes
in the Secretary’s stance toward disability claimants.
It is merely a glib reformulation of policies which
have been implemented for several years. In these
circumstances, it should be futile to require all mem-
42a
bers of the identified subclass to exhaust administra-
tive remedies, despite the Secretary’s protestations
that certain claimants might be granted benefits were
they to pursue administrative appeals.
In addition, plaintiffs have demonstrated that they
will suffer irreparable harm for which post hoc relief
would be inadequate. See supra. — Dixon,
supra, slip op. at 10.
Defendant argues that the unexhausted claims are
not substantially collateral but are in fact identical
to plaintiffs’ claims for benefits. Even if the Secre-
tary’s argument is correct, the court believes that
waiver of exhaustion is nonetheless appropriate be-
cause plaintiffs have clearly satisfied the requirements
of futility and irreparable harm. “[T]he core prin-
ciple that statutorily created finality requirements
should, if possible, be construed so as not to cause
crucial collateral claims to be lost and potentially ir-
reparable injuries to be suffered remains applicable.”
Eldridge, supra, 424 U.S. at 331, n.11. The Supreme
Court’s approach is practical and its decisions do not
establish whether each of the individual relevant
factors must be present before a court may waive
exhaustion. City of New York v. Heckler, 742 F.2d
729, 736 (2nd Cir. 1984), cert. granted, 54 U.S.L.W.
3193 (October 8, 1985), citing Eldridge, supra, and
Ringer, supra. Fairness and justice dictate that the
16 The Secretary urges this court to reserve any decision on
the waiver of exhaustion issue in light of the Supreme Court’s
decision to grant the Secretary’s petition for certiorari in City
of New York v. Heckler. The Supreme Court granted cer-
tiorari on October 7, 1985, only two days before this court
heard argument and issued an order certifying the class and
granting preliminary relief. Given the size of the Supreme
Court’s docket and the inherent delays in the appellate process,
43a
exhaustion requirement should be deemed waived for
members of the proposed class. Compare Smith v.
Schweiker, 709 F.2d 777, 780 (2nd Cir. 1983).
V. Conclusion
For all the foregoing reasons, the court will grant
plaintiffs’ motions for preliminary injunctive relief
and class certification. An order setting forth both
the scope of relief and the definition of the class will
be entered.
/s/ Stanley S. Brotman
STANLEY S. BROTMAN
U.S.D.J.
Dated: October 28, 1985
that opinion could conceivably not issue for at least a year.
These motions have already been pending for over a year and
the court cannot in good conscience postpone its decision any
longer.
44a
APPENDIX G
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 83-3771
JOHN WILSON and MARY CHRISTOPHER, on their own
behalf, and on behalf of others similarly situated,
PLAINTIFFS
Vv.
Hon. MARGARET -M: HECKLER, SECRETARY OF HEALTH
AND HUMAN SERVICES, DEFENDANT
[Filed Nov. 14, 1985]
45a
SUPPLEMENTAL OPINION
ACCOMPANYING ORDER.
BROTMAN, District Judge
On October 9, 1985, this court certified a class of
New Jersey residents whose claims for disability
benefits under the Supplemental Security Income
(“SSI”) and Old Age Survivor and Disability In-
surance (“OASDI’) programs have been or could be
denied or terminated since July 20, 1984 solely on
the basis that their medical impairments are not
severe. The court also granted a preliminary injunc-
tion barring the Secretary of Health and Human
Services (“Secretary”) from applying the severity
regulation, 20 C.F.R. § 404.1520(c), to present and
future claims for benefits under Title II and Title
XVI of the Social Security Act, as amended, 42 U.S.C.
§ 301 et seg., and directing her to reopen past claims
that were denied or terminated by application of
that regulation. The court instructed the parties to
confer and submit a joint proposed order incorporat-
ing the timetable and scope of injunctive relief.
After issuance of the court’s opinion, Wilson v.
Heckler, Civ. No. 83-3771 (D.N.J. Oct. 28, 1985),
the parties submitted a partial joint proposed order
for implementing preliminary relief. The parties
could not agree on several points, so they have sub-
mitted separate versions of proposed paragraphs,
along with supplementary letter briefs. The court
has considered the options and arguments presented
by the parties and is filing this supplemental opinion
in order to clarify certain provisions of the accom-
panying final order.
Plaintiffs have asked the court to impose manda-
tory time limits on the Secretary with respect to sev-
46a
eral prescribed actions: identification of class mem-
bers (Order, § 2);* notification of class members
({ 3, § 8(a)); completion of sequential evaluations
of disability, including scheduling hearings (Plain-
tiffs’ Proposed 7 4, 5); and issuance of compliance
instructions ({ 10). While the Secretary has sub-
mitted her estimates of reasonable time frames, which
in every instance are longer than those proposed by
plaintiffs, she maintains that all such mandatory
deadlines are precluded by the Supreme Court’s opin-
ion in Heckler v. Day, —— U.S. ——, 104 S. Ct.
249 (1984).
In Heckler v. Day, the Court invalidated a state-
wide injunction issued by a district court which re-
quired the Secretary, inter alia, to issue reconsidera-
tion determinations within ninety (90) days of re-
quests for reconsideration and to conduct hearings
within ninety (90) days of requests for hearings.
The Court held that because Congress repeatedly con-
sidered and rejected imposing mandatory deadlines
on agency adjudication of disputed disability claims
under Title II of the Social Security Act, “it would
be an unwarranted judicial intrusion into this per-
vasively regulated area for federal courts to issue in-
junctions imposing deadlines with respect to future
disability claims.” —— U.S. , 104 S. Ct. at 2258.
The Court’s 5-4 decision made clear that it applied
to injunctions issued in class actions and that injunc-
tive relief would still be proper to remedy individual
violations of 42 U.S.C. § 405(b). Jd. at n.33.
The Circuit Courts of Appeals which have applied
Heckler v. Day have generally followed its proscrip-
tion of setting time limits on the Secretary’s admin-
* Except where noted. all references to numbered para-
graphs are to the accompanying order.
Tiiaaninimecaaiaiaccaaiaaaiiid
47a
istrative process. See, e.g., Telecommunications Re-
search & Action v. F.C.C., 750 F.2d 70, 81 n.44 (D.C.
Cir. 1984) (granting injunctive relief in individual
ease); Sierakowski v. Heckler, 748 F.2d 115 (2nd
Cir. 1984) (invalidating 165 day deadline for de-
ciding Medicare appeals) ; Hyatt v. Heckler, 757 F.2d
1455, 1459 (4th Cir. 1985) (vacating injunction
against Secretary’s policy of nonacquiescence). But
see Avery v. Sec’y of Health and Human Services,
762 F.2d 158, 164, 165 (1st Cir. 1985) (upholding
. mandatory time limits under 1984 Reform Act in
| absence of countervailing legislative history and dem-
. onstrable burden).
In the case at bar the court is faced with two
distinct types of time limits. Plaintiffs seek to re-
quire the Secretary to “make all good faith efforts
to complete the sequential evaluation of disability
within four weeks of the date a class member’s case
file. ..is received...” (Plaintiffs’ Proposed {| 4(a)
(3)); conduct redetermination hearings within forty-
five (45) days of identification of class members en-
titled to have their claims reopened (Plaintiffs’ Pro-
posed J 4(b)) ; and conduct hearings in cases of class
members whose claims have been remanded from fed-
eral court within seventy-five (75) days.of notice of
remand or eighty-five (85) days of entry of the re-
mand order, whichever is earlier (Plaintiffs’ Pro-
posed §/4(b)). These proposed deadlines directly
contradict the holding of Heckler v. Day because they
would impose time limits on the Secretary’s internal
administrative procedures. “In light of Congress’
continuing concern that mandatory deadlines would
subordinate quality to timeliness, and its recent ef-
forts to ensure the quality of agency determinations,
it hardly could have contemplated that courts should
have authority to impose the very deadlines it re-
Al
48a
peatedly has rejected.” Heckler v. Day, supra, ——
US. , 1048. Ct. at 2257.
Accordingly, the court will not impose the dead-
lines which plaintiffs proposed and to which defend-
ant agreed. Instead, the accompanying order in-
structs the Secretary to use her “best efforts” to
obtain, update and review vocational information and
complete sequential evaluations within suggested time
frames which the parties have already agreed are
reasonable. Since compliance with the time frames
is hoped for, but not required, the court has deleted
proposed provisions that would tally cases received
by the New Jersey Division of Disability Determina-
tions (“NJDDD”’) in any given week as received in
the following week if they exceeded a certain num-
ber. Order, {4(a). The order further directs the
Secretary to use her best efforts to schedule hearings
promptly and hold them within a reasonable period
of time. Order, § 4(b).
The other time limits proposed by plaintiffs and in-
corporated into the accompanying order relate not
to the Secretary’s procedures but to implementation
of preliminary injunctive relief. Timetables for iden-
tifying class members and notifying them of their
status do not conflict with Heckler v. Day, supra.
See Dixon v. Heckler, 83 Civ. 7001 (MEL), Letter
Opinion of Lasker, J. (S.D.N.Y. July 20, 1984) (dis-
cussing proposed order to be issued under Dixon v.
Heckler, 589 F. Supp. 1494 (S.D.N.Y. 1984)). Ac-
cordingly, the court will require the Secretary to
identify all class members within 120 days and notify
them within twenty-one (21) days of such identifica-
tion. Order, J{/ 2, 3. Plantiffs propose that the Sec-
retary be required to notify all class members within
ninety-five (95) days. The Secretary argues that
plaintiffs’ proposed time frame would impose an un-
ee
ee ee ee ee ee nee
49a
due administrative burden on the agency which could
be alleviated if an additional twenty-five (25) days
were granted. The court is mindful that the agency
must issue benefit checks early in December due to
the holiday mail crunch and that the Secretary is al-
ready working to comply with other court orders.
The Secretary states that 120 days “represents a real-
istic deadline which SSA will be able to meet,” De-
fendant’s Letter Brief, Nov. 6, 1985 at 3, and the
court will hold the Secretary to her proposal.
The parties agreed that twenty-one (21) days was
an appropriate time frame for notification, but
clashed over whether the Secretary should be required
to notify the claimant’s representative as well as the
claimant. The Secretary’s own regulations provide
that notice “. . . of any administrative action .. .”
will be sent to a claimant’s representative. 20 C.F.R.
§ 404.1715. In the face of the regulation’s plain
language, the Secretary’s arguments that such a re-
quirement would overburden her administrative staff
are unavailing.
The accompanying order will apply to claimants
whose claims are currently in federal court as well
as to those with claims pending at various adminis-
trative levels. The class encompasses both categories
and the court believes claimants with claims pending
in federal court are fully entitled to notification of
thei. status as potential members of the certified
class, in addition to any and all other rights granted
to other class members. Any objection that such fed-
eral cases should not be subject to the proposed hear-
ing deadlines is rendered moot by the court’s deci-
sion, pursuant to Heckler v. Day, supra, not to im-
pose deadlines at that stage.
The Secretary and plaintiffs propose different time-
tables for issuing instructions for compliance with
50a
the accompanying order. Plaintiffs suggest that such
instructions should be issued within fifteen (15) days
of the date of the accompanying order. The Secre-
tary contends that the delays inherent in the print-
ing process make forty-five (45) days a more realis-
tic projection. The printing process alone, the Secre-
tary claims, can take as long as twenty-one (21)
days. The court believes that the Secretary should
be able to draft and review instructions within
twenty-one (21) days and disseminate typewritten
copies of those instructions by mail or telecopier
pending issuance of the final, printed version. There-
fore, the court will order that the Secretary dissemi-
nate instructions in provisional form within twenty-
one (21) days and circulate a final, printed version
within forty-five (45) days. Order, § 10.
The final issue on which the parties could not agree
is monitoring. The basic monitoring information re-
quested by plaintiffs is essential to track the Secre-
tary’s compliance efforts. Particularly in light of
the court’s inability to impose mandatory deadlines
on the hearing process, plaintiffs’ counsel must be
supplied with frequent and accurate reports on the
status of certain claims and the Secretary’s progress.
The court must rely on plaintiffs’ counsel to alert it
to any instances of apparent noncompliance with the
accompanying order. For these reasons, the court will
adopt the timetable suggested by plaintiffs, modified
to reflect the court’s adoption of defendant’s 120 day
limit for notifying potential class members.
The accompanying order will be entered and should
be interpreted in light of this opinion.
/s/ Stanley S. Brotman
STANLEY 8. BROTMAN
U.S.D.J.
Dated: November 14, 1985
5la
APPENDIX H
IN Ti{E UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 88-3771
JOHN WILSON and MARY CHRISTOPHER, on their own
behalf, and on behalf of others similarly situated,
PLAINTIFFS
Vv.
HON. MARGARET M. HECKLER, SECRETARY OF HEALTH
AND HUMAN SERVICES, DEFENDANT
[Filed Nov. 14, 1985]
ORDER CERTIFYING CLASS AND GRANTING
PRELIMINARY INJUNCTION
This matter being brought before the court by
Richard E. Yaskin, Esquire, of Jacobs & Schwalbe,
P.C., attorneys for the plaintiff class, and the court
having considered the submissions and arguments of
the parties:
It is on this 14th day of November, 1985, hereby
ORDERED that plaintiffs may maintain this action
as a class action pursuant to Fed. R. Civ. P. 23(a)
| and (b) (2), the class being defined as follows:
i aalll
52a
All persons in the State of New Jersey who have
filed or will file applications for disability bene-
fits under Title II and/or Title XVI of the Social
Security Act, as amended, and whose benefits
have been.or will be denied or terminated based
upon a finding of no severe impairment pursu-
ant to the policies set forth in 20 C.F.R. §§ 404.
1520(c) and .1521, 416.920(c) and .921 (1983),
and Social Security Ruling 82-55 (1982). |
The plaintiff class does not include, at this time,
any such persons who received decisions of the
Secretary on or before July 25, 1984 and who
failed either to file a complaint in federal dis-
trict court or to appeal to the next level of ad-
ministrative review within 60 days after the
date of receipt of such decision.
For purposes of determining class membership,
the term “person in the State of New Tersey’’ is
defined as an individual who was domici!2d in the
State of New Jersey at the time of “is or her
most recent administrative decision.
For purposes of determining whether disability
was denied or terminated based on a finding of
no severe impairment, the rationale of the final
agency denial shall be controlling except that the
rationale of the Administrative Law Judge shall
be controlling where the Appeals Council denies
review and has not initiated review on its own
motion pursuant to 206 C.F.R. § 404.969 (1983).
It is FURTHER ORDERED that plaintiffs’ mo-
tion for a preliminary injunction is GRANTED and
that, pending a final determination of this action,
defendant, her agents, servants, employees and their
successors :
53a
1. Are enjoined from denying or terminating So-
cial Security Disability or Supplemental Security In-
come benefits due to the policies set forth in 20 C.F.R.
§§ 404.1520(c) and .1521, 416.920(c) and .921
(1988), and Social Security Ruling 82-55 (1982);
and
2. Shall immediately commence identification of
all members of the plaintiff class. Defendant shall
complete identification of the members of the class
within 120 days of the date of this order; and
3. Shall send to each class member whose applica-
tion for benefits was denied and his/her representa-
tive, a copy of the notice appended hereto as Attach-
ment “A”. Notification of class members shall be
completed within twenty-one (21) days of the date
defendant identifies the class member; and
4. Are directed to reopen the applications of all
class members whose applications for benefits have
been denied or terminated by the Secretary at any
stage of the administrative process, since July 26,
1984 and thereafter, and to redetermine those appli-
cations without reference to the threshold severity
test, provided that any action pending in federal court
based upon the denial of a class member’s applica-
tion for benefits has been remanded to the Secretary
for redetermination.
(a) With respect to class members whose applica-
tions for disability benefits have been denied at the
initial administrative stage or on reconsideration and
who have not requested review by an Administrative
Law Judge:
(1) Defendant snall forthwith obtain infor-
mation on the individual’s vocational history, in-
cluding completion of Form SSA-3369 if appro-
priate or updating the prior vocational history
54a
on file. Defendant shall use its best efforts to
obtain or update vocational information within
one week after the class member responds to
the notice appended here to as Attachment “A”
or is otherwise determined to be a class member.
(2) Defendant shall forward the class mem-
ber’s file to the New Jersey Division of Disabil-
ity Determinations (“NJDDD”) for a new ini-
tial determination within three days of (i) ob-
taining appropriate vocational information pur-
suant to sub-paragraph (a)(1), or (ii) receipt
of the claims folder by the District Office with
jurisdiction over the claim, whichever is later.
Defendant shall make its best efforts to deliver
to the District Office fifty percent (50%) of the
claims files within two weeks, sixty-five percent
(65%) of the claims files within three weeks
and eighty percent (80%) of the claims files
within thirty days after the class member re-
sponds to Attachment “A” or is determined to
be a class member. Defendant shall begin re-
constructing the files of all class members whose
claims files are not received by the appropriate
District Office within four months after the class
member responds to Attachment “A” or is deter-
mined to be a class member, whichever is earlier.
(3) Defendant shall make all good faith ef-
forts to complete the sequential evaluation of
disability within four weeks of the date a
class member’s case file and completed Form
SSA-3369 are received by NJDDD unless the
class member submits new medical evidence, re-
quests a full redevelopment of evidence and re-
evaluation of disability, or defendant determines
that a full redevelopment is required. Nothing
ee ee Cotes 28 Bee bee *
55a
in this order shall preclude defendant from em-
ploying the quality assurance process set forth
in 42 U.S.C. § 421(c)(3) in each individual
class member’s case to the extent defendant
seems appropriate.
(b) In conducting the redetermination of those
applications in which a hearing has been held or in
which a request for hearing is pending, defendant
shall conduct a hearing before an Administrative
Law Judge unless a determination of entitlement can
be made on the basis of the record. The Secretary
shall use her best efforts to schedule such hearings
promptly and hold them within a reasonable period
of time. Aion!
5. With respect to those class members who have
actions pending in federal court and either have
informed the Secretary that they want their case
remanded to the Secretary for a reevaluation or have
failed to so inform the Secretary by responding to
the notice appended here to as Attachment “A”
within thirty (30) days of the date of the notice, the
Secretary shall move the court for or otherwise agree
to a remand of the case; and
6. Shall provide to any person who presents him/
herself in person, by telephone or by letter to the
Social Security Administration for relief under this
order and, at the time of such presentment provides
his/her name, Social Security number, telephone
number and current address, a copy of the notice ap-
pended hereto as Attachment “B”, stamped by the
Social Security Administration personnel to indicate
the date of his/her presentment. A copy of the no-
tice shall be placed in that person’s file if that person
in fact has applied for or been terminated from bene-
fits. Upon such presentment, defendant shall within
56a
thirty (30) days, determine whether such person is
a class member and shall provide a written rationale
for such determination; and
7. Shall reproduce, in both the English and Span-
ish languages, the notice appended herete as Attach-
ment “C” as a 17 inch by 22 inch poster and cause
equal numbers of English and Spanish language
copies of such poster to be prominently displayed in
ail Social Security Administration field, district, and
hearing offices in the State of New Jersey to which
the public has access, shall supply plaintiffs’ attor-
neys with fifty (50) copies of said poster in the
English language and twenty-five (25) copies of said
poster in the Spanish language; and
8. (a) In the event a class member fails to re-
spond to notice “A” and said notice is not returned
by the Post Office, defendant shall make all good
faith efforts to send a final notice to the class mem-
ber advising him or her of the availability of relief
under this order within seventy-five (75) days of the
date notice “A” is sent. Said final notice shall con-
tain a form which will allow the class member to
indicate whether he or she intends to pursue the re-
lief provided for by this order and shall be accom-
pained by an addressed, postage-paid envelope.
Upon sending the final notice, defendant shall have
no further obligation to contact the class member.
(b) In the event that a notice sent to a class mem-
ber is returned by the Post Office, defendant shall
follow standard operating procedures in the Program
Operations Manual (POMS, DI 00504.047) to ascer-
tain the individual’s current address or whereabouts
for purposes of sending a final notice. If still un-
successful upon completing these efforts, defendant
may cease efforts to locate the class member. Should
lr
BE sees t a8 Sas.
57a
the class member come to defendant’s attention, de-
fendant shall provide the class member with all the
rights under the order for class members who re-
spond to Attachment “A”; and
9. Shall immediately issue instructions to the So-
cial Security offices in the State of New Jersey, to
the Office of Hearings and Appeals, to the Appeals
Council, to the Regienal Office, having jurisdiction
over New Jersey, and to the New Jersey Division of
Disability Determination, requiring compliance with
paragraph (1).
10. Shall, within twenty-one (21) days of the
date of this order, issue provisional instructions for
compliance with this order, including procedures to
be used in identifying class members, responding to
inquiries from asserted class members and their rep-
resentatives, for reevaluating initial claims of plain-
tiff class members who have been denied or termi-
nated at the initial administrative state or on re-
consideration. Such provisional instructions shall be
disseminated in typewritten form by mail or tele-
copier. Final printed instructions shall be issued
within forty-five (45) days of the date of this order,
but they shall not differ in content from the provi-
sional instructions; and
11. Shall immediately provide plaintiffs’ counsel
with copies of all memoranda, notices, instructions,
directives and like documents issued to effect com-
pliance with this order as those documents are is-
sued; and
12. Plaintiffs seek the following reports to be pro-
vided within the time frames specified:
(a) An alphabetized list of the names and Social
Security numbers of class members who have been
identified (within 130 days and supplemented every
58a
forty-five (45) days until defendant’s efforts to iden-
tify class members have ceased) ; and
(b)-(1) An alphabetized list of the names
and Social Security numbers of persons who
cannot be notified because their notices were re-
turned by the Post Office (within 155 days and
supplemented every forty-five (45) days until
defendant’s efforts to notify class members pur-
suant to Paragraph 8(b) have ceased) ; and
(2) An alphabetized list of the names and So-
cial Security numbers of persons who have been
notified, but failed to respond to Attachment
“A” (within 175 days and supplemented every
forty-five (45) days until the District Office
ceases to maintain an active file due to the class
member’s failure to respond to, or negative re-
sponse to, the final followup notice of Paragraph
8(a); and
(c) The number of class members identified (with-
in 130 days and supplemented every forty-five (45)
days until defendant’s efforts to identify class mem-
bers have ceased) ; and
(d) The number of class members sent Attach-
ment “A” and the number responding to such notice
(within 175 days and supplemented every forty-five
(45) days until defendant’s efforts to contact class
members who are sent Attachment “A” have ceased) ;
and
(e) The number of cases ordered forwarded to
NJDDD (on a monthly basis) ; and
(f) The number of persons who have presented
themselves as potential class members, and the num-
ber determined to be class members; and the number
determined not to be class members (on a monthly
basis) ; and
ee CF
NE et Pw ee SF a ee
59a
(g) the number of cases that have been scheduled
for hearings, and the number of hearings that have
been conducted (on a monthly basis) ; and
(h) The number of redeterminations of applica-
tions that result in allowances and the number that
result in denials (on a monthly basis) ; and
(i) The total number of folders that have not been
located (every 45 days) ; and
(j) The total number of claimants who have sub-
mitted vocational and/or financial information, and
whose folders have not been located (every 45 days) ;
and
(k) The number of cases that have been placed
in the quality assurance process (every 45 days) ;
and
(1) The number of cases for which the quality
assurance process has been completed (every 45
days) ; and
(m) The number of cases in which the quality
assurance process resulted in an initial disagreement
by defendant, with the decision of NJDDD, reported
separately for denials and allowanc@&s (every 45
days).
13. The Secretary may petition the court anytime
for relief from any one or more of the provisions of
paragraph 12, above. Such relief will be granted
upon the showing made by the Secretary and a de-
termination of the court that the implementation of
this order is proceeding smoothly and that the infor-
mation called for in the particular provision or pro-
visions from which the Secretary seeks relief is no
longer needed or upon a showing and a determina-
tion of the Court that such relief is otherwise ap-
propriate.
60a
14. Nothing in this order shall be construed as
precluding members of the plaintiff class from ob-
taining greater relief on alternative grounds within
the sequential evaluation process. Class members
shall retain all rights to administrative and judicial
review of decisions made as a consequence of this
order. Nothing in this order shall be construed as
precluding class members who choose to proceed with
their individual court cases from seeking preliminary
relief in those cases.
/s/ Stanley S. Brotman
STANLEY S. BROTMAN
U.S.D.J.
ees em
6la
ATTACHMENT A
SOCIAL SECURITY DISABILITY AND
SUPPLEMENTAL SECURITY INCOME
APPLICANTS, THEIR REPRESENTATIVES
AND REPRESENTATIVE PAYEES
Date:
Based on our review of your file, it appears that
you may have been denied benefits because we found
that your medical condition was not severe. A fed-
eral court has temporarily ordered us not to deny
benefits on that ground and to reopen and redeter-
mine certain applications denied on that ground.
If we review your case, we will need more infor-
mation from you. Therefore, you should go to or
telephone your local Social Security Administration
office, and be prepared to give them information
about your employment history. If you go to your
local Social Security Administration office in person,
please take this notice with you.
If we determine your application, our decision will
be based upon the medical evidence that we now have
in our file, unless you give us additional medical evi-
dence. If you believe that your medical condition has
changed since we last evaluated your claim, you
should make a special effort to obtain and give us
additional medical evidence from your doctor(s) and
any clinics or hospitals where you have received
treatment.
IT IS OF GREAT IMPORTANCE THAT YOU
CONTACT YOUR LOCAL SOCIAL SECU-
RITY ADMINISTRATION OFFICE WITHIN
FORTY-FIVE (45) DAYS SO THAT WE
MAY REDETERMINE YOUR CASE.
62a
PERSONS WITH CASES IN FEDERAL COURT
If you have an action pending in federal court
based upon the denial of your application, we cannot
redetermine this application unless and until the
court sends your case back to us. You may alterna-
tively have the right to continue with your court
(2 action. Ne'request that you indicate below whether
you want to send your case back to us for'determina-
tion.
Please place your name, signature, Social Security
number, address, telephone number and date in the
spaces provided. Please tear off the form below and
return in the enclosed addressed, postage-paid en-
velope within twenty (20) days after the date you
receive this notice. If we do not hear from you with-
in thirty (30) days of the date of this notice, we wili
assume that you do not want to continue with your
court action, and we will ask the court to send your
case back to us for redetermination.
Date:
I want to continue my court action. I do
not want the Social Security Administration to re-
determine my application for benefits.
I do not want to continue with my court
action. I want the Social Security Administration to
redetermine my application for benefits.
NAME: (Please Print)
SIGNATURE:
SOCIAL SECURITY NO.:
ADDRESS: (Please Print)
TELEPHONE NUMBER:
DATE:
incerta eet eh Se CV TRADERS Ae IO OS
63a
ATTACHMENT B
WILSON APPLICATION
Date:
This acknowledges presentment on this date of
your claim for relief under Wilson v. Heckler, Civil
Action No. 83-3771 (D.N.J. October 28, 1985). If
you are a member of the class of plaintiffs in this
lawsuit and are entitled to relief, the Social Security
Administration will be reviewing your application if
you were denied or terminated disability insurance
and/or SSI benefits.
NAME: (Please Print)
SOCIAL SEURITY NUMBER:
ADDRESS: (Please Print)
TELEPHONE NUMBER:
64a
The class of plaintiffs in Wilson v. Heckler, No.
83-3771 (D.N.J. October 28, 1985), includes people
who:
1. Were denied or terminated from disability in-
surance and/or SSI benefits on or after July 26,
1984 or who had an appeal pending on that date;
and
2. Were denied or terminated because the Social
Security Administration found that their medical
condition was “not severe” or did not “significantly
limit physical or mental abilities to do work activi-
ties.”
We will decide whether you are a member of the
class of plaintiffs in Wilson v. Heckler within about
thirty (30) days of the date of this notice.
65a
ATTACHMENT C
SOCIAL SECURITY DISABILITY AND
SUPPLEMENTAL SECURITY INCOME
DISABILITY APPLICANTS AND RECIPIENTS
HAS THE SOCIAL SECURITY ADMIN-
ISTRATION DENIED OR TERMINATED
YOUR DISABILITY BENEFITS? IF SO,
YOU MAY BE ENTITLED TO A NEW
REVIEW OF YOUR CASE
Because of a lawsuit, the Social Security Admin-
istration may have to reevaluate your applica-
tion for benefits. The lawsuit affects people in
the State of New Jersey who were denied or
terminated benefits because the Social Security
Administration found that their medical condi-
tion was not severe.
CAN YOU ANSWER YES
TO THESE QUESTION?
1. Were you denied or terminated from disability
benefits on or after July 26, 1984, or did you have
an appeal pending«within the Social Security Admin-
istration’or in federal court on that date?
2. Do you think your benefits were denied or ter-
minated because the Social Security Administration
found that your medical condition was “not severe”
or because it found that your medical condition did
not “significantly limit your physical or mental abili-
ties to do basic work-related activities”
If you said yes to both of the above questions, don’t
delay. Contact your local Social Security office im-
mediately. Be prepared to give them your name, So-
cial Security number, current address and telephone
number. Ask for a Wilson Application.
66a
APPENDIX I
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
1. Section 223(d)(1)(A) and (2) (A) of the So-
cial Security Act, as codified at 42 U.S.C. (& Supp.
II) 423(d) (1) (A) and (2) (A), provides:
(d) “Disability” defined
(1) The term “disability” means—
(A) inability to engage in any substantial gainful
activity by reason of any medically determinable
physical or mental impairment which can be ex-
pected to result in death or which has lasted or can
be expected to last for a continuous period of not
less than 12 months; * * *
+ * * * *
(2) For purposes of paragraph (1) (A)—
(A) an individual (except a widow, surviving di-
vorced wife, widower, or surviving divorced husband
for purposes of section 402(e) or (f) of this title)
shall be determined to be under a disability only if
his physical or mental impairment or impairments are
of such severity that he is not only unable to do his
previous work but cannot, considering his age, edu-
cation, and work experience, engage in any other kind
of substantial gainful work which exists in the na-
tional economy, regardless of whether such work ex-
ists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
For purposes of the preceding sentence (with respect
to any individual), “work which exists in the na-
tional economy” means work which exists in signifi-
siti dis dap
67a
cant numbers either in the region where such indi-
vidual lives or in several regions of the country.
2. Section 1614(a)(3)(A) and (B) of the Social
Security Act, as codified at 42 U.S.C. 1382c(a) (3)
(A) and (B), provides:
(3)(A) An individual shall be considered to be
disabled for purposes of this subchapter if he is un-
able 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 twelve
months (or, in the case of a child under the age of
18, if he suffers from any medically determinable
physical or mental impairment of comparable sever-
ity).
(B) For purpose of subparagraph (A), an in-
dividual 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, considering his
age, education, and work experience, engage in any
other kind of substantial gainful work which exists
in the national economy, regardless of whether such
work exists in the immediate area in which he lives,
or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
For purposes of the preceding sentence (with respect
to any individual), “work which exists in the na-
tional economy” means work which exists in signifi-
cant numbers either in the region where such in-
dividual lives or in several regions of the country.
3. Section 223(d)(2)(C) of the Social Security
Act, as added by Section 4(a)(1) of the Social Se-
curity Disability Benefit Reform Act of 1984, Pub.
68a
L. No. 98-460, 98 Stat. 1800 (42 U.S.C. (Supp. IT)
423(d) (2) (C)), provides:
“(C) In determining whether an individual’s phys-
ical or mental impairment or impairments are of a
sufficient medical severity that such impairment or
impairments could be the basis of eligibility under
this section, the Secretary shall consider the combined
effects of all of the individual’s impairments without
regard to whether any such impairment, if consid-
ered separately, would be of such severity. If the
Secretary does find a medically severe combination of
impairments, the combined impacts of the impair-
ments shall be considered throughout the disability
determination process.”
4. Section 1614(a)(3)(G) of the Social Security
Act, as added by Section 4(b) of the Social Security
Disability Benefits Reform Act of 1984, Pub. L. No.
98-460, 98 Stat. 1800 (42 U.S.C. (Supp. II) 1382c
(a) (3) (G) ), provides:
“(G) In determining whether an individual’s phys-
ical or mental impairment or impairments are of a
sufficient medical severity that such impairment or
impairments could be the basis of eligibility under
this section, the Secretary shall consider the com-
bined 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 combina-
tion of impairments, the combined impact of the im-
pairments shall be considered throughout the dis-
ability determination process.”
5. 20 C.F.R, 404.1520 and 404.1521 provide:
§ 404.1520 Evaluation of disability in general.
(a) Steps in evaluating disability. We consider all
material facts to determine whether you are disabled.
69a
If you are doing substantial gainful activity, we will
determine that you are not disabled. If you are not
doing substantial gainful activity, we will first con-
sider your physical or mental impairment(s). Your
impairment(s) must be severe and meet the duration
requirement before we can find you to be disabled.
We follow a set order to determine whether you are
disabled. We review any current work activity, the
severity of your impairment(s), your residual func-
tional capacity and your age, education, and work
experience. If we can find that you are disabled or
not disabled at any point in the review, we do not
review further.
(b) If you are working. If you are working and
the work you are doing is substantial gainful activity,
we will find that you are not disabled regardless of
your medical condition or your age, education, and
work experience.
(c) You must have a severe impairment. If you do
not have any impairment or combination of impair-
ments which significantly limits your physical or
mental ability to do basic work activities, we will
find that you do not have a severe impairment and
are, therefore, not disabled. We will not consider
your age, education, and work experience. However,
it is possible for you to have a period of disability
for a time in the past even though you do not now
have a severe impairment.
(d) When your impairment(s) meets or equals a
listed impairment in Appendix 1. If you have an
impairment(s) which meets the duration require-
ment and is listed in Appendix 1 or is equal to a
listed impairment(s), we will find you disabled with-
out considering your age, education, and work ex-
perience.
70a
(e) Your impairment(s) must prevent you from
doing past relevant work. If we cannot make a deci-
sion based on your current work activity or on medi-
cal facts alone, and you have a severe impairment(s),
we then review your residual functional capacity and
the physical and mental demands of the work you
have done in the past. If you can still do this kind of
work, we will find that you are not disabled.
(f) Your impairment(s) must prevent you from
doing any other work. (1) If you cannot do any
work you have done in the past because you have a
severe impairment(s), we will consider your residual
functional capacity and your age, education, and past
work experience to see if you can do other work. If
you cannot, we will find you disabled.
(2) If you have only a marginal education, and
long work experience (i.e., 35 years or more) where
you only did arduous unskilled physical labor, and
you can no longer do this kind of work, we use a
different rule (see § 404.1562).
§ 404.1521 What we mean by an impairment(s)
that is not severe.
(a) Non-severe impairment(s). An impairment or
combination of impairments is not severe if it does
not significantly limit your physical or mental ability
to do basic work activities.
(b) Basic work activities. When we talk about
basic work activities, we mean the abilities and apti-
tudes necessary to do most jobs. Examples of these
include—
(1) Physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying
or handling;
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ttn a
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Tla
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remember-
ing 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 set-
ting.
6. 20 C.F.R. 416.920 and 416.921 provide:
§ 416.920 Evaluation of disability in general.
(a) Steps in evaluating disability. We consider all
material facts to determine whether you are disabled.
If you are doing substantial gainful activity, we will
determine that you are not disabled. If you are not
doing substantial gainful activity, we will first con-
sider your physical or mental impairment(s). Your
impairment(s) must be severe and meet the dura-
tion requirement before we can find you to be dis-
abled. We follow a set order to determine whether you
are disabled. We review any current work activity,
the severity of your impairment(s), your residual
functional capacity and your age, education, and
work experience. If we can find that you are dis-
abled or not disabled at any point in the review, we
do not review further.
(b) If you are working. If you are working and
the work you are doing is substantial gainful activ-
ity, we find that you are not disabled regardless of
your mental condition or your age, education, and
work experience.
(c) You must have a severe impairment. If you
do not have any impairment or combination of im-
pairments which significantly limits your physical or
mental ability to do basic work activities, we will
find that you do not have a severe impairment and
72a
are, therefore, not disabled. We will not consider
your age, education, and work experience.
(d) When your impairment(s) meets or equals a
listed impairment in Appendix 1. If you have an
impairment(s) which meets the duration requirement
and is listed in Appendix 1 or is equal to a listed
impairment(s), we will find you disabled without
considering your age, education, and work experi-
ence. ;
(e) Your impairment(s) must prevent you from
doing past relevant work. If we cannot make a deci-
sion based on your current work activity or on
medical facts alone, and you have a severe impair-
ment(s), we then review your residual functional
capacity and the physical and mental demands of the
work you have done in the past. If you can still do
this kind of work, we will find that you are not dis-
abled.
(f) Your impairment(s) must prevent you from
doing other work. (1) If you cannot do any work
you have done in the past because you have a severe
impairment(s), we will consider your residual func-
tional capacity and your age, education, and past
work experience to see if you can do other work.
If you cannot, we will find you disabled.
(2) If you have only a marginal education, and
long work experience (i.e., 35 years or more) where
you only did arduous unskilled physical labor, and
you can no longer do this kind of work, we use a
different rule (see § 416.962).
[50 FR 8728, Mar. 5, 1985]
§ 416.921 What we mean by an impairment(s)
that is not severe.
(a) Non-severe impairment(s). An impairment
or combination of impairments is not severe if it
73a
does not significantly limit your physical or mental
ability to do basic work activities.
(b) Basic work activities. When we talk about
basic work activities, we mean the abilities and apti-
tudes necessary to do most jobs. Examples of these
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 remember-
ing 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 set-
ting.
® U. ©, GOVERNMEKT PRINTING OFFicE; 1966 161483 40103
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.