The opinion of the court was delivered by: Moran, District Judge.
The plaintiff is 58 years old (R. 88). He has an eighth-grade
education with two additional years of vocational training (R.
36). For twenty-eight years, until May 7, 1981, plaintiff was
employed as a maintenance mechanic (R. 28). His work required
extensive standing, walking, lifting, squatting, kneeling, and
crawling (R. 26-27) and qualifies as "heavy" under the applicable
regulations (R. 59). See 20 C.F.R. § 404.1567(d).
Plaintiff has been diagnosed as having, among other things, a
variety of knee problems (R. 147, 157), hypertension (R. 146,
158), degenerative disc disease (R. 176) and bilateral carpal
tunnel syndrome (attachment to brief of plaintiff). The worsening
condition of plaintiff's left knee caused him to quit his job on
May 7, 1981, and to have a left tibial osteotomy three days later
(R. 129-145). Plaintiff has not worked since the operation (R.
13) and his knee condition has continued to place limits on his
ability to do certain activities such as standing (R. 127),
walking (R. 39, 42), climbing (R. 42-43) and kneeling (R. 41).
The longer plaintiff sits the harder it is for him to mobilize
his left leg upon rising (R. 40, 54-55). He uses a cane when
erect (R. 127). Plaintiff also complains of severe,
incapacitating headaches (R. 37, 44-45), pains in his neck and
lower back (R. 37-38, 45), vision limitations (R. 38-39), and
problems with his grip (R. 39).
While the administrative law judge (ALJ) never expressly found
that plaintiff could not do his past work, that he held such a
conclusion seems apparent from the record. In fact, from the
questions he posed to the vocational expert it appears the ALJ
believed that plaintiff is capable of only sedentary work (R.
191). The vocational expert called by the Secretary also
determined that plaintiff could not do his past work (R. 69).
This expert concluded that in light of plaintiff's age,
education, vocational background and physical limitations the
number of jobs which plaintiff can fill cannot be considered to
exist in significant numbers (R. 188-192).
Even though (1) plaintiff is not working, (2) he has
medically-diagnosed physical limitations which prevented him from
doing his past work, and (3) there are no jobs in significant
numbers which he can fill because of these limitations in light
of his age, vocational background and education, the ALJ found
that plaintiff's disability ceased as of the end of May 1982 (R.
13-14). The rationale for his decision was that plaintiff's
impairments were not "severe" [20 C.F.R. § 404.1520(c)] because
they did not significantly limit his ability to perform basic
work-related functions [20 C.F.R. § 404.1521] (R. 13).
In 1978 the Secretary prescribed five sequential tests for
determining whether a claimant is disabled. See 43 Fed.Reg.
55349, codified as amended, 20 C.F.R. § 404.1520.*fn1 A finding
of disabled or not disabled at any point in the review process is
conclusive and terminates the analysis, 20 C.F.R. § 404.1520(a).
First, a claimant who is currently working is presumptively not
disabled, 20 C.F.R. § 404.1520(b). Second, a claimant whose
impairments are not "severe" is not disabled,
20 C.F.R. § 1404.1520(c). Third, a claimant whose impairments meet or equal
an impairment listed in Appendix 1 of the regulations (the listed
impairments) is presumptively disabled, 20 C.F.R. § 404.1520(d).
Fourth, a claimant whose impairments are severe but don't meet
Appendix 1 levels is not disabled if his "residual functional
capacity" permits him to do his past work,
20 C.F.R. § 404.1520(e). Fifth, a claimant with severe but not listed
impairments who is unable to do his past work is disabled if he
cannot do other work in light of his age, education and past work
experience, 20 C.F.R. § 404.1520(f). See generally Chico v.
Schweiker, 710 F.2d 947, 950-52 (2nd Cir. 1983). In order to
calculate a claimant's ability to do past work the Secretary
generally uses a system of medical/vocational guidelines set out
in Appendix 2 of the regulations. See generally Heckler v.
Campbell, ___ U.S. ___, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).
Plaintiff was found not disabled at the second stage of the
disability determination process when the ALJ found that he no
longer suffered from a "severe impairment". The regulations
define at length what the Secretary means by an impairment that
is not severe:
(a) Non-severe impairment. An impairment is not
severe if it does not significantly limit your
physical or mental abilities to do basic work
(b) Basic work activities. When we talk about basic
work activities, we mean the abilities and aptitudes
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 remembering
(5) Responding appropriately to supervision,
coworkers and usual work situations; and
(6) Dealing with changes in a routine work
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. . . .")
Were this simply a case of an internally inconsistent set of
regulations the seeming paradox presented by a claimant unable to
do any work in large part because of clearly diagnosed physical
limitations being found not disabled because his impairments do
not "significantly limit [his] physical . . . ability to do basic
work activities," 20 C.F.R. § 404.1521(a), would not detain this
court. Plaintiff, however, argues that this paradox reflects a
fundamental and fatal inconsistency between the severe impairment
requirement of 20 C.F.R. § 404.1520(c) and the definition of
disability in the underlying statute. His position, in essence,
is that the Secretary's use of medical evidence alone to find
that the physical limitations which prevent a claimant from doing
his past work are not "severe" and hence not disabling
contravenes Congress' intention that the Secretary consider the
claimant's age, education and vocational experience whenever a
review of the medical
evidence alone does not lead to a finding of disability. It is to
that question we turn.
The basic statutory definition of disability has remained
essentially unchanged since the creation of the "disability
freeze" by the Social Security amendments of 1954, P.L. 83-761,
and of the full-fledged disability insurance program in 1956,
P.L. 84-880. The current provision reads:
(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 expected
to result in death or which has lasted or can be
expected to last ...