The opinion of the court was delivered by: Moran, District Judge.
20 C.F.R. § 404.1521.
The interesting aspect of this case stems from the fact that
the record as it now stands provides strong support for a finding
that plaintiff is disabled, had the ALJ continued his review
through all five steps. Assuming that plaintiff's limitations do
not meet or equal the listed impairments of Appendix 1 (step 3),
it is evident that his residual functional capacity does not
permit him to do his past work, thereby meeting the fourth test.
The Secretary's own vocational expert, in response to the ALJ's
interrogatories, stated that given plaintiff's physical
limitations, as well as his age, education and work experience,
jobs which he could presently fill do not exist in significant
numbers. Consequently, plaintiff appears disabled under step 5,
since he is unable to do "other work".
20 C.F.R. § 404.1520(f)(1). See also 20 C.F.R. § 404.1566(d) ("work
exists . . . [only] when there is a significant number of jobs
having requirements which you are able to meet. . . .")
This definition invites attention to both the medical condition
and functional capabilities of claimant. The construction of the
provision is such that the condition of disability is defined as
an "inability to engage in any substantial gainful activity,"
which is established at present by reference to the claimant's
age, education and work experience. See 42 U.S.C. § 423(d)(2)(A);
20 C.F.R. § 404.1571. The language "by reason of any medical
determinable physical or mental impairment" (emphasis added) is a
clause limiting entitlement to claimants who can demonstrate a
medically-determinable basis for their inability to work.
Nothing in this basic statutory definition of disability
suggests that claimants have to prove that they suffer from a
"severe" impairment in order to qualify as disabled. Rather, the
statute speaks broadly of "any" impairment. Regulations requiring
claimants to show that they suffer from some medically
determinable impairment would appear to be logically consistent
with the construction of the statute. A practice, however, of
denying disability benefits to claimants like plaintiff whose
ability to work is markedly restricted due to diagnosed physical
or mental abnormalities because these impairments are deemed not
"severe" baldly contravenes the language and structure of
42 U.S.C. § 423(d)(1)(A).
Our analysis does not end here, however, because in 1967
Congress, in response to the rising costs of the Social Security
program and the more extreme judicial expansions of eligibility,
amended the Social Security Act to provide guidelines for the
determination of disability. See Senate Report 744, 90th Cong.,
1st Sess., 46-50, reprinted in 1967 U.S.Code Cong. and Ad. News,
2834, 2880-83. The statutory elaboration of the definition of
42 U.S.C. § 423(d)(2)(A).
This provision supports plaintiff's position on two counts.
First, while the section speaks of the "severity" of a claimant's
impairments it quite clearly defines the requisite level of
severity by reference to the claimant's present ability to do
work. In fact, Congress made no mention of severity when it
included a definition of "impairment" as another of the 1967
42 U.S.C. § 423(d)(3).
The existence of two distinct methods for determining
disability and the differences between them strongly counsel
against interpreting 42 U.S.C. § 423(d)(2)(A) as permitting the
Secretary to rely on medical evidence alone and deny disability
benefits to individuals unable to do past work on the ground that
their impairments are not "severe". Congress developed two
distinct methods for making disability determinations for a
specific reason. The more restrictive approach, § 423(d)(2)(B),
which places emphasis on the level of impairment severity, is
clearly designed to restrict entitlement and was given limited
application to several specific classes of claimants. The more
expansive test of disability, § 423(d)(2)(A), which relies
substantially on the consideration of the non-medical
characteristics of each claimant, was designed to apply to most
claimants, including the plaintiff.
2. Legislative History
This language alone is not enough to support the Secretary's
application of 20 C.F.R. § 404.1520(c) in this case. First, later
in the same page the report discusses the nature of the
impairment which is the basis for disability and makes no mention
of a discrete "severity requirement". Id. at 2882. Second, the
report contrasts the usual method of determining disability with
the "more restrictive" approach of 42 U.S.C. § 423(d)(2)(B),
where the determination is "based solely on the level of severity
of the impairment". Id. at 2883. Finally, the passage is little
more than a summary of statutory provisions, albeit one giving
somewhat more emphasis to the existence of a "severe" impairment.
While cautioning this court against hasty invalidation of
20 C.F.R. § 404.1520(c) this one somewhat ambiguous passage from the
legislative history is not controlling. It is the language of the
statute that must guide this court and that language is
fundamentally incompatible with the Secretary's expansive
interpretation of 20 C.F.R. § 404.1520(c).
3. History of the Regulation
In response to the 1967 amendments the Secretary promulgated
amended regulations which provided in pertinent part:
20 C.F.R. § 404.1502(a) (1968) (emphasis added).
The present five-step scheme for determining disability was
proposed by the Secretary in 1978. 43 Fed.Reg. 9284 et seq.
(March 7, 1978). The proposed regulations were simply "intended
as a consolidation and elaboration of long-standing
medical-vocational evaluation policies". Id. at 9295. Their
purpose was "not to increase nor decrease the allowance/denial
ratio . . .," id., but simply to improve "program
efficiency . . . by limiting the number of cases in which it
would be necessary to follow the vocational evaluations
sequence. . . ." 45 Fed.Reg. 55574 (August 20, 1980).
Immediately prior to discussing the purpose of the severe
impairment requirement of 20 C.F.R. § 404.1520(c) the Secretary
outlined a three-part classification of impairments for purposes
of the disability determination process:
43 Fed.Reg. at 9296 (emphasis added). The effect of the last
sentence of this passage is that an impairment is presumptively
non-disabling only when no person who suffers from that
impairment would be found disabled.
In light of this classification of impairments the Secretary's
discussion of 20 C.F.R. § 404.1520(c) makes clear her
understanding that the severe impairment requirement is to be
used to support a finding of not disabled only in those instances
where the impairment in question is presumptively not disabling:
43 Fed.Reg. 9296-97.
The Secretary's announcement of the adoption of the new
regulatory scheme further emphasized that 20 C.F.R. § 404.1520(c)
was but a clarification of the terms "a slight neuroses, slight
impairment of sight or hearing, or other slight abnormality" and
professes "no intention to alter the levels of severity for a
finding of disabled or not disabled". 43 Fed.Reg. 55358 (November
28, 1978). In sum, the administrative history of
20 C.F.R. § 404.1520(c) indicates quite vividly that it was no more than a
restatement of existing regulations and was intended to apply
only to that narrow set of cases where claimant's impairment is
so minor that no person who suffers from the impairment could be
found disabled. Brady v. Heckler, 724 F.2d 914, 919-20 (11th Cir.
1984) (per curiam); Chico, supra, 710 F.2d at 954, n. 10; Trafton
v. Heckler, 575 F. Supp. 742, 745 (D.Me. 1983).
There is no support in this history for a proposition that
20 C.F.R. § 404.1520(c) permits the Secretary to rely on medical
evidence alone to deny disability benefits to claimants whose
impairments prevented them from doing their past work and
severely restricted their ability to do other jobs. In other
words, it appears that the Secretary intended
20 C.F.R. § 404.1520(c) to be a de minimus requirement and that the bulk of
disability terminations would continue to be done through
reference to the listed impairments of Appendix 1 or through
consideration of the claimant's age, education and work
experience, as well as consideration of the effects of the
claimant's mental and physical abnormalities. See 43 Fed.Reg.
55351 ("The regulations emphasize that the adjudicative judgment
is to be based on consideration of all the individual factors.")
4. Burden of Proof
There appear to be two possible effects of the expansive
interpretation of 20 C.F.R. § 404.1520(c) advanced by the
Secretary on this allocation of the burden of proof. First, it
could directly raise the burden of proof faced by every claimant.
This case is illustrative. It is undisputed that plaintiff could
not do his past work due to his physical limitations. Thus, he
made out a prima facie case under the existing burden of proof
rules. The Secretary's own vocational expert testified that there
were no jobs in significant numbers which a plaintiff could fill,
suggesting that the Secretary would not have met its burden had
it been put to the test. Yet, by finding that the plaintiff's
impairment was not "severe" and hence non-disabling the Secretary
in effect imposed a substantial additional requirement which
claimants must meet before making out a prima facie case: proof
of impairment severity. The second approach, one adopted by
several courts, is to treat the severity requirement of
20 C.F.R. § 404.1520(c) as a threshold test and to limit the application of
the traditional burden of proof rules to the later steps in a
disability determination process where the claimant's present
work capabilities, age, education and vocational experience are
considered. See e.g., Goodermote v. Secretary of Health & Human
Services, 690 F.2d 5, 6-7 (1st Cir. 1982) Neither of the changes
in the burden of proof rules which could be wrought by the
expansive interpretation of 20 C.F.R. § 404.1520(c) are
There has been no change in the statutory definition of
disability to support a substantial increase in the burden which
claimants must meet in order to make out a prima facie case. As
this case illustrates, requiring claimants unable to do their
past work due to "an impairment" to prove in addition that their
impairment is "severe" has the effect of significantly
restricting entitlement. While we must give substantial deference
to the Secretary, a fundamental change in the standards of
entitlement falls outside of permissible boundaries of
administrative action, absent some expression of congressional
Treating an expansively interpreted 20 C.F.R. § 404.1520(c) as
a mere threshold requirement has its own problems. There is no
statutory support for this approach. As this case illustrates,
the so-called "threshhold" would in practice be higher than the
very standard for establishing a disability. Claimants like the
plaintiff, who are unable to do their past work, would have to
first prove that they suffer from a "severe impairment". Having
done so they would then have only to show that they suffer from
"an impairment" in order to make out a prima facie case. The use
of 20 C.F.R. § 404.1520(c) as a threshold test, then, is little
more than a way of increasing plaintiff's burden in making out a
prima facie case and is consequently impermissible. Cf. Chico,
supra, 710 F.2d at 954-55.
Those attacking the Secretary's regulations must make out a
strong case of inconsistency with the statute if they are to
succeed. McCoy v. Schweiker, 683 F.2d 1138, 1143-1144 (8th Cir.
1982) (en banc). Congress has given the Secretary substantial
authority to promulgate a wide variety of rules and regulations;
42 U.S.C. § 405(a). The Supreme Court has emphasized on several
occasions that the Secretary has broad authority to prescribe
regulations. It has stressed that these regulations are entitled
to more than mere deference or weight by the courts but instead
are to be given legislative effect and should not be overturned
unless they are arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with law. See Heckler v. Campbell,
___ U.S. ___, 103 S.Ct. 1952, 1957, 76 L.Ed.2d 66 (1983).
In light of this presumption of validity the reception given
20 C.F.R. § 404.1520(c) by the courts of appeals has been tellingly
lukewarm. Chapman v. Schweiker, 81-1025 (10th Cir. Feb. 26, 1982)
and Hilton v. Schweiker, 81-1139 (10th Cir. Feb. 26, 1982) did
sustain the validity of the regulation but the decisions were by
a divided panel and were later withdrawn and remanded to the
District Court by the full court, after rehearing en banc. Hilton
v. Schweiker, 81-1139, supra (January 10, 1983) (order); Chapman
v. Schweiker, 81-1025, supra (January 10, 1983) (order). In
Lofton v. Schweiker, 653 F.2d 215 (5th Cir.), cert. denied,
454 U.S. 1089, 102 S.Ct. 651, 70 L.Ed.2d 626 (1981) and Wallschlaeger
v. Schweiker, 705 F.2d 191 (7th Cir. 1983), the courts simply
assumed the validity of the severity requirement. McCoy v.
Schweiker, 683 F.2d 1138 (8th Cir. 1982) (en banc) dealt only
with the validity of the appendix to medical-vocational
guidelines. While upholding the validity of the five-step
disability determination scheme, the court in Goodermote v.
Secretary of Health & Human Services, 690 F.2d 5, 7 (1st Cir.
1982), expressly noted that claimant had not challenged the
validity of 20 C.F.R. § 404.1520(c).
Other courts of appeals have cast doubt upon the facial
validity of the severe impairment requirement, yet hesitated to
make a definitive ruling. Judge Friendly discussed at length the
"close question" presented by the "seeming conflict" between the
severity requirement and the statutory definition of disability
but declined to rule on the matter in Chico v. Schweiker,
710 F.2d 947 (2d Cir. 1983). Similarly, the court in Delgado v.
Heckler, 722 F.2d 570 (9th Cir. 1983), declined to consider the
"very troubling contention" that the severe impairment
requirement contravenes the statutory definition of disability.
See also, Scruggs v. Schweiker, 559 F. Supp. 100 (D.Tenn. 1982)
(20 C.F.R. § 404.1520(c) deemed invalid). Another court of
appeals has given a narrow reading to 20 C.F.R. § 404.1520(c).
Brady v. Heckler, 724 F.2d 914 (11th Cir. 1984).
By interpreting 20 C.F.R. § 404.1520(c) narrowly and in a
manner designed to ensure consistency with both the statutory
definition of disability and existing case law it appears to this
court quite possible to sidestep the question of the facial
invalidity of the severe impairment requirement. Regulations
promulgated pursuant to the Social Security Act must be construed
to carry out the clear intent of statutory language. Giacone v.
Schweiker, 656 F.2d 1238, 1242 (7th Cir. 1981).
The regulations describe a "severe" impairment as one which
"significantly" limits the claimant's physical or mental ability
to do basic work activities. 20 C.F.R. §§ 404.1520(c), .1521(a).
The regulations do not define "significant" but the ordinary
usage of the word suggests that the requirement of significance
is not a particularly high one. Webster's defines "significant"
as "having a meaning," "deserving to be considered," and "having
or likely to have an influence or effect." Webster's Third
International Dictionary (Merriam Co. 1976) (Unabridged). The
antonym of "significant" is "meaningless." A significant limit on
a claimant's ability to do basic work activities, then, is thus
no more than one which is "not meaningless." See Trafton v.
Heckler, 575 F. Supp. 742, 745 (D.Me. 1983). Jones v. Schweiker,
551 F. Supp. 205, 208 (D.Md. 1982). That the existence of a severe
impairment is to be determined by reference to the claimant's
ability to do basic work activities indicates that in most cases
severity "is to be determined by whether the impairment in fact
precludes substantial gainful activity, not by measurements `on
an imaginary scale with calibrations ranging from "mild" to
"severe."'" Doe v. Harris, 495 F. Supp. 1161, 1168 (S.D.N.Y. 1980)
quoting from Ber v. Celebrezze, 332 F.2d 293, 298-99 (2d Cir.
1964). See also Jones v. Schweiker, supra, 551 F. Supp. at 208.
("ALJ erred in viewing severity of impairment solely as a medical
issue . . . rather than adhering to the regulatory scheme, in
which severity is defined in terms of significant functional
As noted above, when proposing the present regulations the
Secretary outlined a classification of impairments for purposes
of making disability determinations and an interpretation of the
severity requirement, both of which this court adopts as
consistent with statutory requirements. The Secretary divided
impairments into three categories: those that were presumptively
disabling, those that were presumptively not disabling, and those
whose disabling effects had to be weighed in conjunction with the
age, education, and vocational background of the claimant. It is
apparent from the Secretary's discussion that the severity
requirement was intended to permit a determination of
non-disability to be made on the basis of medical evidence alone
only when the claimant's impairment was so slight that no person
who suffered from it would be disabled.
Consistent with the ordinary usage of the term "significant,"
the Secretary explicitly equated the "non-severe" impairment
requirement of the proposed regulations with the existing
requirement that a claimant's impairment be more than "slight."
Other courts have similarly tailored 20 C.F.R. § 404.1520(c). See
e.g., Brady, supra, 724 F.2d at 919-20; Moore v. Heckler,
575 F. Supp. 180 (D.Me. 1983). See also Chico v. Schweiker,
710 F.2d 947, 954 n. 10 (2d Cir. 1983). A non-severe impairment, then, is
one that is presumptively not disabling because regardless of
age, education and vocational background any claimant who has the
impairment retains the ability to do his past work.
In the typical disability case the parties in effect assume the
existence of a severe impairment and their dispute centers on
whether the claimant can do his past work and, if not, whether he
is capable of other work. Lofton v. Schweiker, 653 F.2d 215, 217
(5th Cir. 1981). Properly applied, 20 C.F.R. § 404.1520(c) is a
threshold test invoked at the option of the Secretary. It is,
however, a test which the Secretary and not the claimant must
meet. If the Secretary elects to challenge claimant's entitlement
to disability because of the absence of a severe impairment, the
Secretary, with her superior access to the medical literature and
experience with effects of various impairments on functional
capabilities, should have the burden of showing that the
claimant's impairments are presumptively nondisabling. This
burden of going forward, should the Secretary choose to assume
it, would be light and consist of no more than showing that the
claimant's impairments fall within the category of those
presumptively non-disabling. Consistent with the present
well-established burden of proof rules, the claimant can then
rebut the Secretary's case by showing that his impairments
prevent him from doing his past work. In other words, by making
out a prima facie case of disability through showing an inability
to do past work due to "an impairment" the claimant necessarily
satisfies the "severe impairment" requirement of
20 C.F.R. § 404.1520(c). See Clemente v. Schweiker, 564 F. Supp. 271, 273
(S.D.N.Y. 1983); Roberts v. Heckler, 564 F. Supp. 572, 574 (D.N.D.
This court's construction of 20 C.F.R. § 404.1520(c) is
consistent with both the structure of entitlement and the burden
of proof rules derived from the statute. It allows the Secretary
to realize the efficiency gains promised by
20 C.F.R. § 404.1520(c) while protecting claimants from a statutorily
unwarranted increase in the burden of making a prima facie case
of disability. Far from imposing an alien interpretation of the
severity requirement on the Secretary the court's treatment
follows the Secretary's own discussion of the purpose and effect
of 20 C.F.R. § 404.1520(c). Case law also supports our approach.
In Wallschlaeger v. Schweiker, 705 F.2d 191 (7th Cir. 1983), for
example, the 7th Circuit relied upon 20 C.F.R. § 404.1520(c) when
affirming a denial of disability benefits. Judge Posner noted at
several points in the opinion that the claimant retained her
ability to do her past work. Under this court's construction of
§ 404.1520(c) the Wallschlaeger claimant would also be found not
disabled since by not demonstrating an inability to do past work
due to a mental or physical abnormality she failed to rebut the
Secretary's showing of no severe impairment.
Judge Posner's discussion of the relationship between the
severe impairment requirement of § 404.1520(c) and the statutory
definition of disability supports this court's view of the
requirement as limited in scope and satisfied by the claimant who
makes out prima facie case:
If you do not have a severe impairment [under the
regulations] you are not disabled even if you have
some slight impairment that disables you from
performing any work which you have or are qualified
to do. But in a practical sense an impairment that
prevents an applicant from doing any work he is
qualified to do is a severe impairment, for by
hypothesis it is totally disabling, and the statute
itself — 42 U.S.C. § 423(d)(2)(A) again — defines
"severe" in just that practical way.
Id. at 197. In most other cases where the courts have relied upon
20 C.F.R. § 404.1520(c) to affirm a denial of disability, the
claimants were found able to do his past work or their
impairments presumptively had no effect on their ability to work
regardless of their age, education and work experience. See e.g.
Goodermote v. Secretary of Health & Human Services, 690 F.2d 5
(1st Cir. 1982); Moore v. Heckler, 575 F. Supp. 180 (D.Me. 1983).
But see Anderson v. Schweiker, 558 F. Supp. 654 (D.S.D. 1983).
Conversely, a claimant's inability to do their past work is
usually an important factor in a court's decision that there was
no substantial evidence to support a finding that the claimant
did not suffer from a severe impairment. See e.g., Clemente,
supra, 564 F. Supp. at 272-73; Lucena v. Secretary of Health and
Human Services, 572 F. Supp. 130, 133 (D.P.R. 1983).
In this case the Secretary relied upon an over-broad
interpretation of the severe impairment requirement. The record
in its present state leaves little doubt that plaintiff's
physical limitations prevented him from doing his past work. Had
he had an opportunity to demonstrate this fact, and had he done
so, plaintiff would have not only satisfied
20 C.F.R. § 404.1520(c) but also made out a prima facie case of disability.
Remand of this case to the Secretary is appropriate. Plaintiff is
entitled to the opportunity to make good on his seemingly
meritorious claim of an inability do past work due to a
medically-demonstrable physical impairment. If he does so, he has
made out a prima facie case and the burden shifts to the
Secretary to demonstrate that plaintiff remains capable of
filling jobs which exist in significant numbers in the national
An alternative ground for remand is the absence of support for
the Secretary's conclusion that plaintiff did not suffer from a
severe impairment. "Substantial evidence" is "such relevant
evidence as a reasonable mind might accept as adequate to support
the conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91
S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). See McNeil v. Califano,
614 F.2d 142, 145 (7th Cir. 1980).
The record reveals that plaintiff's knee problems alone
significantly limit his ability to do basic work activities. He
is unable to walk for more than three blocks and must use a cane.
Plaintiff has difficulty climbing stairs and getting in and out
of vehicles. His condition presents him with a dilemma: the
longer he sits the longer it takes to mobilize his leg once he
rises; yet he must use a cane and ambulation appears to be
difficult when erect. His ability to kneel, stoop and push and
pull with his legs is restricted. Further, his complaints of
severe pains in his head, back and neck were summarily discounted
by the ALJ, without an adequate discussion of why he did not
consider these complaints credible.
See Szulyk v. Heckler, 575 F. Supp. 1266, 1268 (N.D.Ill. 1984)
(". . . to simply declare that plaintiff's complaints of pain
were `not entirely credible,' without further explanation,
constitutes error on the part of the ALJ.") Finally, plaintiff
testified that he has problems with his grip and has offered to
this court medical evidence which supports the existence of
tunnel carpal syndrome. Considered as a whole, the record
indicates that plaintiff's physical limitations sufficiently
compromise his ability to do basic work activities. The requisite
level of impairment severity has been met.
The cross motions for summary judgment are denied. This case is
remanded to the Secretary for further proceedings consistent with
this opinion. The Secretary is to take the next steps in the
sequential evaluation mandated by the regulations.