SSR 82-47c: SECTIONS 216(i) and 223(d) (42 U.S.C. 416(i) and 423(d)) DISABILITY INSURANCE BENEFITS -- ABILITY TO PERFORM SEDENTARY WORK -- CONSTITUTIONALITY OF THE MEDICAL-VOCATIONAL GUIDELINES

20 CFR 404.1501-404.1598

SSR 82-47c

Taylor v. Schweiker , USDC, Middle District, N.C., Greensboro

Division, Civ. No. C-80-705-G (9/24/81)

GORDON, District Judge:

The plaintiff seeks judicial review, pursuant to §205(g) of the Social

Security Act, as amended, 42 U.S.C. §405(g), of the final decision of the

Secretary of Health and Human Services, denying him the establishment of a

period of disability and for disability insurance benefits.

The plaintiff first field his application on December 5, 1979, alleging

that he became unable to work at 27 years of age because of joints leg,

back and side pain and swelling. The application was denied initially and

upon reconsideration. Plaintiff thereafter requested a hearing. The

requested hearing was held on June 25, 1980 before Administrative Law

Judge Rufus K. Hayworth. On July 18, 1980, the Administrative Law Judge

rendered his decision, find that plaintiff was not entitled to a period of

disability or to disability insurance benefits. The Appeals Council

thereafter denied plaintiff's request for review. This action was timely

instituted on December 31, 1980.

The entire administrative record has now been certified to the Court, and

the parties have cross-moved for summary judgment. These motions will be

deemed to have been made pursuant to Rule 7(b)(1), Federal Rules of Civil

Procedure, seeking a judgment of the Court affirming or reversing the

decision of the Secretary. (See Torphy v. Weinberger, 384 F. Supp.

1117, 1119 (E.D. Wis. 1974.)

The Administrative Law Judge found that plaintiff was unable to perform

his past relevant work and yet retained the residual functional capacity

for sedentary work. He also found that plaintiff was twenty-eight years

old at the time of the hearing, that he had limited education and

unskilled work experience. (Record, p. 19.) Plaintiff does not dispute any

of these findings of fact.

74.)

The Administrative Law Judge found that plaintiff was unable to perform

his past relevant work and yet retained the residual functional capacity

for sedentary work. He also found that plaintiff was twenty-eight years

old at the time of the hearing, that he had limited education and

unskilled work experience. (Record, p. 19.) Plaintiff does not dispute any

of these findings of fact.

After making his findings of fact, the Administrative Law Judge applied

the "Medical-Vocational Guidelines" found in 20 C.F.R., Subpart A, App. 2.

Given the set of facts he had found about plaintiff, the Administrative

Law Judge found that "Rule 201.18 of Table No. 1. Appendix 2, Subpart P,

of Regulations No. 4 and . . . No. 16, direct a finding of not

disabled." [1] (Record, p. 19.)

Because the regulations take administrative notice of the existence of

jobs in the national economy for persons with plaintiff's age, education,

work experience and residual capacity, the Administrative Law Judge found

that they showed plaintiff's continuing ability to engage in gainful work. See Stallings v. Harris, 493 F.Supp. 956, 959 (W.D.Tenn. 1980); Boyce v. Harris, 492 F.Supp. 751, 752 (D.S.C. 1980).

Plaintiff's single objection to the ruling of the Secretary is the use of

the "Medical-Vocational Guidelines" to dictate a finding of not disabled

in his case. He argues that: "I. A vocational expert is required in all

but exceptional cases." and "II. The grid regulations deny claimant's due

process rights by imposing an irrebuttable presumption."

rris, 492 F.Supp. 751, 752 (D.S.C. 1980).

Plaintiff's single objection to the ruling of the Secretary is the use of

the "Medical-Vocational Guidelines" to dictate a finding of not disabled

in his case. He argues that: "I. A vocational expert is required in all

but exceptional cases." and "II. The grid regulations deny claimant's due

process rights by imposing an irrebuttable presumption."

In its first argument, plaintiff's well-written brief relies in large

part on case law within and without this circuit which antedates Frady

v. Harris, 646 F.2d 143 (4th Cir. 1981), the Court of Appeals' most

recent decision in this area. Thus, with all due respect to Judge

McMillan's decision in Williams v. Harris, 500 F. Supp. 214

(W.D.N.C. 1980) and to the reasoning in cases outside this circuit, such

as Santise v. Harris, 501 F.Supp. 274 (D.N.J. 1980), the court is

required to follow the apparent holding of Frady v. Harris, supra, insofar as it controls this case. In that case, the Court of Appeals

specifically affirmed a decision holding Frady ineligible for benefits,

based on his ability to perform sedentary work and the application of the

regulatory grid to his situation. The Court held that the Secretary could

properly apply "broadly based regulatory 'medical vocational guidelines'

dealing with what constitutes capacity to perform and with the

availability of particular types of employment." Id. at 145.

* * * * *

ing Frady ineligible for benefits,

based on his ability to perform sedentary work and the application of the

regulatory grid to his situation. The Court held that the Secretary could

properly apply "broadly based regulatory 'medical vocational guidelines'

dealing with what constitutes capacity to perform and with the

availability of particular types of employment." Id. at 145.

* * * * *

Plaintiff's second contention, that use of the regulations is an

unconstitutional deprivation of property without due process of law, was

not addressed by the Court of Appeals in Frady v. Harris; therefore, it will require this Court's special attention. Plaintiff's

main claim of unconstitutionality rests on the "irrebuttable presumption"

line of Supreme Court cases which begins (or so it is thought) with Heiner v. Donnan, 285 U.S. 312 (1932). The first case to use the

terminology of "irrebuttable presumption" was Vlandis v. Kline, 412

U.S. 441 (1973). In striking down a Connecticut rule which declared all

university students nonresidents of the state whose addresses at

enrollment were outside Connecticut, the Court said:

Id. at 452.

* * * * *

In more recent years, the opponents of the "irrebuttable presumption"

doctrine seem to have the upper hand. A hard blow fell in Weinberger v.

Salfi, 422 U.S. 749 (1975). There the Court upheld a social security

regulation which defined "widow" and "child" so as to exclude persons who

held the described relationships to a deceased wage earner for less than

nine months. Although a three-judge district court has struck down the

definition as an "irrebuttable presumption," the Court, per Justice

Rehnquist, held that the definition simply states a requirement for the

receipt of benefits: widows and stepchildren must have been related to the

deceased wage earner for more than nine months in order to qualify for

benefits as his survivors. Id at 772

e months. Although a three-judge district court has struck down the

definition as an "irrebuttable presumption," the Court, per Justice

Rehnquist, held that the definition simply states a requirement for the

receipt of benefits: widows and stepchildren must have been related to the

deceased wage earner for more than nine months in order to qualify for

benefits as his survivors. Id at 772. Therefore, the Court held,

the standard which the classification must pass is that of rationality.

* * * * *

Justice Rehnquist distinguished two predecessor irrebuttable presumption

cases, Stanley v. Illinois, 405 U.S. 645 (1972), and Cleveland

Board of Education v. LeFleur, supra, as concerned with specially

protected individual freedoms. He did not discuss Bell v. Burson,

supra, or United States Department of Agriculture v. Murry,

supra. The former dealt with a Georgia provision which automatically

suspended the drivers' license of an uninsured driver involved in an

accident, regardless of fault. The latter dealt with a food stamp

regulation barring from participation any member of a family 18 years old

or older who was simultaneously claimed as a dependent by a non-eligible

taxpayer. Justice Rehnquist attempted to distinguish Vlandis v. Kline,

supra, but few commentators have regarded that effort as

successful:

Yarbrough, The Burger Court and Unspecified Rights: On Protecting

Fundamental and Not-so-fundamental "Rights" or "Interests" through a

Flexible Conception of Equal Protection, 1977 Duke L.J. 143, 158.

neously claimed as a dependent by a non-eligible

taxpayer. Justice Rehnquist attempted to distinguish Vlandis v. Kline,

supra, but few commentators have regarded that effort as

successful:

Yarbrough, The Burger Court and Unspecified Rights: On Protecting

Fundamental and Not-so-fundamental "Rights" or "Interests" through a

Flexible Conception of Equal Protection, 1977 Duke L.J. 143, 158.

The strong language of Weinberger v. Salfi, supra, the weakness of

Justice Rehnquist's effort to distinguish and preserve Vlandis v.

Kline, supra, and the speculations of commentators like Professor

Yarbrough cause courts to wonder whether the "irrebuttable presumption"

doctrine has any vitality at all in current constitutional jurisprudence.

The Second Circuit held that after the former Weinberger v. Salfi, the "irrebuttable presumption" rule has merged into a simple rule of

rationality which, under the Equal Protection Clause, governs all

legislative classifications. Johnson v. Lefkowitz, 566 F.2d 866,

869 (2nd Cir. 1977); Clayborne v. Califano, 603 F.2d 372, 380 (2nd

Cir. 1979) ("Whatever viability the above-mentioned cases retain in their

respective contexts, the Supreme Court has all but ruled them inapplicable

to social welfare legislation.") The Seventh Circuit has ruled that after Weinberger v. Salfi, the Supreme Court has tacitly abandoned the

doctrine altogether. See Trafelet v. Thompson, 594 F.2d 623, 629-30

(7th Cir.), cert. denied. 444 U.S. 906 (1979). Therefore,

plaintiff's argument confronts an initial difficulty in asserting the

validity of the "irrebuttable presumptions" doctrine, especially in the

light of recent cases which seem to discount that doctrine. See, e.g.,

Usery v. Turner Elkhorn Mining Co., 429 U.S. 1, 22-23 (1976).

ltogether. See Trafelet v. Thompson, 594 F.2d 623, 629-30

(7th Cir.), cert. denied. 444 U.S. 906 (1979). Therefore,

plaintiff's argument confronts an initial difficulty in asserting the

validity of the "irrebuttable presumptions" doctrine, especially in the

light of recent cases which seem to discount that doctrine. See, e.g.,

Usery v. Turner Elkhorn Mining Co., 429 U.S. 1, 22-23 (1976).

Nonetheless, if this Court assumes, as it will, that the "irrebuttable

presumptions" doctrine is yet potent, the question remains: What standard

of review does this strand of Due Process employ? The Court of Appeals for

the Third Circuit has analyzed the irrebuttable presumptions cases in two

classes, and that analysis seems applicable here. In Malmed v.

Thornburgh, 621 F.2d 565 (3rd Cir. 1980), the Court reasoned that

cases like Stanley v. Illinois, supra, applied an exacting standard

of review to presumptions which impinged on specially protected rights. Id. at 575. Those cases have no bearing here, where plaintiff is

not claiming any infringement on his constitutional liberties. But the

other category of cases, typified by Vlandis v. Kline, supra, are

cases which "invalidated a classification adopted as an administrative

device to serve as evidence of another classification." Id. at 574.

Those cases, the Court said:

Id. at 575. Therefore, the proper question for this Court as drawn

from a somewhat cloudy set of Supreme Court cases, is whether the

"Medical-Vocational Guidelines" employed by the Secretary offer a

reasonable proxy for the testimony of a vocational expert.

As noted above, the "Medical-Vocational Guidelines" are intended to serve

as administrative notice of the availability of jobs within the national

economy for persons of certain age, education, work experience, and

residual work capacity. The introduction to the guidelines explains how

the tables are derived:

e Secretary offer a

reasonable proxy for the testimony of a vocational expert.

As noted above, the "Medical-Vocational Guidelines" are intended to serve

as administrative notice of the availability of jobs within the national

economy for persons of certain age, education, work experience, and

residual work capacity. The introduction to the guidelines explains how

the tables are derived:

20 C.F.R., Subpart P, App. 2, § 200.00(b). In other words, the grid,

using the same kind of information which is available to a vocational

expert, yields a uniform set of the same findings as would such an expert,

although in a tabular form. This scheme plainly appears to be a reasonable

proxy for the expense and inconsistency associated with live testimony

from such an expert in each hearing.

But plaintiff does not contest the manner in which the grid was designed

or even its accuracy in reporting the availability of jobs for certain

classes of people. He does argue that it is unreasonable to presume that a

claimant is not disabled "without considering the claimant's individual

characteristics." He poses the apparently hypothetical possibility of a

claimant who is physically able to do sedentary work, but whose emotional

or other non-exertional problems render him unemployable. The problem with

this argument is that the regulations attached to the grid specifically

provide that no individual with non-exertional impairments shall be

presumed not disabled on the basis of the grid, but that that person's

individual situation must be weighed -- most usually through the aid of

vocational testimony. See Id., § 200.00(e); 20 C.F.R. § 404.1513; Phillips v. Harris, 488 F.Supp. 1161, 1166 (W.D.Va. 1980).

Therefore, this argument on plaintiff's behalf cannot stand.

ide that no individual with non-exertional impairments shall be

presumed not disabled on the basis of the grid, but that that person's

individual situation must be weighed -- most usually through the aid of

vocational testimony. See Id., § 200.00(e); 20 C.F.R. § 404.1513; Phillips v. Harris, 488 F.Supp. 1161, 1166 (W.D.Va. 1980).

Therefore, this argument on plaintiff's behalf cannot stand.

Plaintiff also argues that the regulations are unreasonable because in

one case "a single year's age difference may mean the difference between

the claimant being 'disabled' or 'not disabled.'" He urges the Court to

note the difference in result between Rules 201.17 and 201.23 of 20

C.F.R., Subpart P, App. 2. The former rule requires that a 45-year-old

person who is illiterate with unskilled work experience and able to do

sedentary work be found disabled. Under the latter rule, the same

individual, at age 44, must be found not disabled. This difference in

result, plaintiff asserts, is"arbitrary."

Two problems doom plaintiff's argument. First, this particular plaintiff

has no standing to challenge this particular asserted irrationality. To

have standing to challenge a regulation such as this, a plaintiff must

allege that the specific irrational rule has actually injured him " and

that he personal would benefit in a tangible way from the court's

intervention" Warth v. Seldin, 422 U.S. 490, 508 (1975). Since

plaintiff is not a 44-year-old man who is presumed not disabled by the

allegedly irrational rule, he cannot raise that particular irregularity as

a claim in his suit.

is, a plaintiff must

allege that the specific irrational rule has actually injured him " and

that he personal would benefit in a tangible way from the court's

intervention" Warth v. Seldin, 422 U.S. 490, 508 (1975). Since

plaintiff is not a 44-year-old man who is presumed not disabled by the

allegedly irrational rule, he cannot raise that particular irregularity as

a claim in his suit.

But more directly responsive to plaintiff's argument is the reality that

whether a line is drawn in the mind of a vocational expert or through the

regulatory grid, lines must be drawn to separate eligible claimants from

the ineligible. The fact that plaintiff's hypothetical illiterate,

inexperienced middle-aged sedentary work crosses the line with his 45th

birthday is no more irrational than the fact that a child of 17 years and

11 months may not vote in a national election. If the lines which are

drawn to define eligibility are reasonable, then the hypothetical" closet

possible case" avails naught in an attempt to declare the rules

unreasonable. To put it another way, "almost" only courts in horseshoes,

not in constitutional jurisprudence. See Weinberger v. Salfi, supra at 772-777; Malmed v. Thornburg, supra at 577, n.18, 578 (upholding

mandatory retirement for state judges at age 70). The rationale behind

this regulation is clear: younger people are more hirable than older

people; therefore, based on the sources noted in § 200.00(b) of 20 C.F.R.,

Subpart P, App.2, the regulations draw an eligibility line at age 45 for

the described individual. That is reasonable.

Malmed v. Thornburg, supra at 577, n.18, 578 (upholding

mandatory retirement for state judges at age 70). The rationale behind

this regulation is clear: younger people are more hirable than older

people; therefore, based on the sources noted in § 200.00(b) of 20 C.F.R.,

Subpart P, App.2, the regulations draw an eligibility line at age 45 for

the described individual. That is reasonable.

Plaintiff's final attack on the regulations is the claim that the grid is

not rationally related to achievement of legitimate governmental goals.

The government has two obvious goals in use of the grid: economy and

consistency. The two goals are undeniably legitimate governmental

objectives. The best argument that plaintiff can muster against them is

that the use of this grid does not achieve the same degree of economy

achieved by the regulation upheld in Weinberger v Salfi, supra, and

that consistency might be equal if the use of the grid were restricted to

non-hearing determinations. Neither argument denies that use of the grid

promotes these legitimate objectives; therefore, this last argument

against the regulations must also fall.

Stallings v. Harris, supra at 961.

The factual conclusions of the Administrative Law Judge leading to the

application of the administrative standards are not contested, and the use

of the "Medical-Vocational Guidelines" was legally sound.

* * * * *

It is therefore ordered and adjudged that the decision of the Secretary

be and is hereby affirmed and the action dismissed with costs addressed to

the plaintiff.

supra at 961.

The factual conclusions of the Administrative Law Judge leading to the

application of the administrative standards are not contested, and the use

of the "Medical-Vocational Guidelines" was legally sound.

* * * * *

It is therefore ordered and adjudged that the decision of the Secretary

be and is hereby affirmed and the action dismissed with costs addressed to

the plaintiff.

[1] The regulation cited by the

Administrative Law Judge does not fit plaintiff's case. It requires a

finding of not disabled for individuals otherwise like plaintiff, but aged

45-49. The regulation properly applied to plaintiff is Rule 201.24, which

also requires a finding of not disabled. Since the Court believes this

mistake to be a clerical error on the part of the Administrative Law

Judge, and since correction of the error does not change the issues of

this case, plaintiff will be deem to have been disqualified by Rule

201.24. See Eaton v. Capps, 348 F. Supp. 237, 240 (M.D.Ala.

1972).