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

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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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Appendix ah a aatinie 19a

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a A TR ce ge a a eS 44a

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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

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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;

ee Ss

ee ed eee

ttn a

ot an a ee

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.

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