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March 19, 1984


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
    simple instructions;

(4) Use of judgment;

      (5) Responding appropriately to supervision,
    coworkers and usual work situations; and
      (6) Dealing with changes in a routine work

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. . . .")

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.


1. Statutory Language

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 ...

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