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MCCULLOUGH v. HECKLER

United States District Court, Northern District of Illinois, E.D


March 30, 1984

JOHN MCCULLOUGH, PLAINTIFF,
v.
MARGARET HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.

The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Margaret Heckler as Secretary of Health and Human Services ("Secretary") has filed objections to Magistrate Joan Lefkow's February 23, 1984 Report and Recommendation (the "Report"), which recommends on cross-motions for summary judgment that John McCullough ("McCullough") be awarded the period of disability and reinstatement of disability insurance benefits he seeks. Secretary contends Magistrate Lefkow has misconstrued the requirement embodied in 20 C.F.R. § 404.1520(c) that a disability claimant must suffer from a "severe" impairment.

This Court finds Secretary, not Magistrate Lefkow, has misconstrued the concept of "severity." Accordingly it overrules Secretary's objections, adopts the Report and enters judgment for McCullough.

"Severity" as a Requirement of Disability

"Severity" is an element that must be shown to establish a disability and entitle a claimant to social security benefits. Although the "severity" requirement as such is a creature of regulations, the statutory definition of "disability" does contain the word "severity" (see, e.g., 42 U.S.C. § 1382c(a)(3)(B), emphasis supplied):

  For purposes of subparagraph (A), an individual 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,
  education, and work experience, engage in any other
  kind of substantial gainful work which exists in the
  national economy. . . .

Analyzing and applying that definition, Secretary's predecessors promulgated regulations establishing "severity" as an independent element of "disability" (20 C.F.R. § 404.1520(c), emphasis in original):

  You must have a severe impairment. If you do not have
  any impairment(s) 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. . . .

Then a later regulation defined "severe impairment" by negative implication (20 C.F.R. § 404.1521, emphasis in original):

    (a) Non-severe impairment. An impairment is not
  severe if it does not significantly limit your
  physical or mental abilities to do basic work
  activities.

    (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, co
  workers and usual work situation; and

(6) Dealing with changes in a routine work setting.

Brady v. Heckler, 724 F.2d 914 (11th Cir. 1984) has provided an extensive analysis of the "severity" requirement. It concludes the regulations set forth a purely de minimis requirement, excluding only the class of claimants described in an earlier version of the regulation as having "slight abnormalities" (id. at 919-20, emphasis added):

  In the 1978 regulations, the Secretary stated that
  the definition "a medically determinable impairment
  is not severe if it does not significantly limit an
  individual's physical or mental capacity to perform
  basic work related functions" is a clarification of
  the previous regulation's terms "a slight neurosis,
  slight impairment of sight or hearing, or other
  slight abnormality or a combination of slight
  abnormalities." It is a clarification, not a change,
  in the definition of severe impairment. The court, in
  Chico v. Schweiker, 710 F.2d 947 (2d Cir. 1983),
  reinforced the fact that the definition of severe impairment
  has not changed over the years.

    The Secretary's preamble in the Federal Register
    reveals that the "severity" regulation, as
    originally promulgated in 1978, was meant to
    clarify the 1968 regulation's terms "a slight
    neurosis, slight impairment of sight or hearing, or
    other slight abnormality or combination of slight
    abnormalities" but was not intended "to alter the
    levels of severity for a finding of . . . [`]not
    disabled['] on the basis of medical considerations
    alone," 43 F.R. 55358. The

    recodification in 1980 evinced no change in this
    expression of the Secretary's intent, 45 F.R.
    55574.

Chico at 954-55, n. 10.

  There has been no attempt to alter the levels of
  severity for a finding of not disabled on the basis
  of medical considerations alone (i.e., a finding of
  non-severe impairment). In defining a non-severe
  impairment under the 1968, 1978, and 1980
  regulations, we must turn to the 1968 regulation's
  terms, "a slight neurosis, slight impairment of sight
  or hearing, or other slight abnormality or a
  combination of slight abnormalities."

  In a document entitled "Appeals Council Review and
  Sequential Evaluation Under Expanded Vocational
  Regulations," attached to a January 30, 1980,
  memorandum from the Appeals Council regarding its
  cumulative findings on appraisal of appealed cases
  during 1979, the Appeals Council set forth its policy
  regarding findings of severe or not severe:

    The Appeals Council, therefore, specifically
    considered the issue of when an impairment(s)
    should be considered as "not severe" within the
    meaning of these regulations. The Council concluded
    in a minute that the definition contained in
    regulations 404.1503(c) and 416.903(c) was not
    intended to change, but was merely a clarification
    of the previous regulatory terms "slight neurosis,
    slight impairment of sight or hearing, or other
    slight abnormality or a combination of slight
    abnormalities. . . ." In other words, an impairment
    can be considered as "not severe" only if it is a
    slight abnormality which has such a minimal effect
    on the individual that it would not be expected to
    interfere with the individual's ability to work,
    irrespective of age, education, or work experience.

  Appeals Council Review of Sequential Evaluation Under
  Expanded Vocational Regulations (1980).

  The 1978 regulations were not meant to alter the
  level of severity for a finding of not disabled on
  the basis of medical considerations alone. Under the
  1968 and 1978 regulations, an impairment can be
  considered as not severe only if it is a slight
  abnormality which has such a minimal effect on the
  individual that it would not be expected to interfere
  with the individual's ability to work, irrespective
  of age, education, or work experience.

  The 1980 recodification stated that impairment is not
  considered severe if it does not significantly limit
  the claimant's physical or mental ability to do basic
  work activities. Though the regulation adds new
  language to the definition of severe impairment, the
  key point is that which was raised by the court in
  Chico; the recodification in 1980 evinced no change
  in expression of the Secretary's intent as to the
  levels of severity needed for finding of not disabled
  on the basis of medical considerations alone. Chico,
  710 F.2d at 955. The court in Jones [v. Schweiker,
  551 F. Supp. 205 (D.Md. 1982)] defined the 1980 term
  "significant" limitation as (1) having a meaning, (2)
  deserving to be considered, and (3) not meaningless.
  Jones, 555 F. Supp. at 208. The limitation must not be
  meaningless. This approach is, thus, identical to the
  1968 language which states that the impairment must
  not be slight. From Chico and Jones it is clear that
  the 1980 regulations follow the 1968 and 1978
  definition of a severe impairment.

Brady then repeats verbatim, as the relevant test under the 1980 regulations (those now in force), the standard this Court has emphasized in the penultimate quoted paragraph. See also Hundrieser v. Heckler, 582 F. Supp. 1231, 1238-39 (N.D.Ill. 1984); Trafton v. Heckler, 575 F. Supp. 742, 745 (D.Me. 1983).

In short the "severity" concept is nothing more than an administrative convenience. As with any other administrative regulation, it cannot supplant the focus mandated by the statute itself. It should be employed only when a claim is so groundless that any analysis of the claimant's work experience or residual functional capacity would be a waste of time. Doubts should be resolved against resting any decision on "severity" alone, because the failure to invoke that requirement where appropriate should always be harmless: Further analysis of any claim assertedly involving no severe impairment should always reveal the claimant's continued ability to do his past relevant work*fn1 or, if not, other relevant work as defined by the statute.

How Secretary Has Used the "Severity" Concept

Given the minor role originally contemplated for the concept of "severity," this case (and some others like it, e.g., Hundrieser, 582 F. Supp. at 1234, 1235) illustrates the distressing extent to which Secretary's decisions are "result-oriented rather than justice-oriented" (Jones v. Heckler, 583 F. Supp. 1250, 1253 (N.D.Ill. 1984)). There is no basis other than Secretary's skewed reading of "severity" on which McCullough could possibly have been denied benefits. His only past relevant work is his 28-year history as a construction laborer, work that Secretary clearly would classify as "heavy." Administrative Law Judge George A. Bowman ("ALJ Bowman" or simply the "ALJ") relied on the medical opinion of Dr. D. McCulley (the least favorable to McCullough in the record) that McCullough was currently capable of performing only "light" work due to his thrombophlebitis. Thus even under ALJ Bowman's analysis McCullough cannot return to his past work. Furthermore because of McCullough's advanced age, limited education and unskilled work experience, his inability to do any more than "light" work mandates a finding of "disabled" under Rule 202.01 of the "Grid," 20 C.F.R. Subpart P, App. 2, Table 2.

Use of the purported "severity" requirement to achieve the desired result (denial of benefits) — even though more rigorous analysis, consonant with the statute, counsels the opposite conclusion — is accomplished by means of an intellectually dishonest sleight-of-hand. Secretary argues:

    1. Her regulations define a "severe" impairment as
  one that limits the ability to do "basic work
  activities," and the regulations list 19 such
  activities in six categories as examples.*fn2 See
20 C.F.R. § 404.1520(c), 404.1521(b).

    2. McCullough's impairment may prevent him from
  engaging in basic work activities he actually used in
  his most recent work,*fn3 but it would not interfere
  with others' basic work activities at their wholly
  different kinds of jobs.*fn4

3. Therefore the impairment is not "severe."

In advancing that flawed syllogism, Secretary defends her practice of ignoring whether an impairment interferes with the claimant's own ability to do basic work activities by citing the second sentence of 20 C.F.R. § 404.1520(c):

  We will not consider your age, education, and work
  experience [when applying the "severity"
  requirement].

But because the statute links "severity" directly to the claimant's inability (1) "to do his previous work" and (2) to "engage in any other kind of substantial gainful work" in light of defined considerations personal to him, the fatal defect in Secretary's reasoning is obvious. "Severity" is not a free-standing, independent measure of disability under the statute. It may of course be used to eliminate the obvious case: No claimed impairment may be found "severe" if it is so slight it would not interfere with anyone's basic work activities, regardless of his or her "age, education, and work experience." See Hundrieser, at 1239. But if that low threshold of "severity" is surmounted, Secretary must proceed to the analysis of the claimant's disability in the terms prescribed by the statute: his inability to do previous work or to engage in other work in light of the factors the statute specifies. Secretary has erred by not doing so here.

This view of the place "severity" should occupy in the "disability" matrix essentially parallels that expressed by our Court of Appeals in Wallschlaeger v. Schweiker, 705 F.2d 191 (7th Cir. 1983). While it assumed the validity of a "severity" requirement and the sequential analysis under the regulations (id. at 196-97), that Court assigned the "severity" concept an essentially tautological role as it would operate in this case (id. at 197):

  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.

Appropriate Relief

As Magistrate Lefkow has pointed out, a finding of "non-severity." "short-circuits" the disability determination process (Report at 5-6):

  The ALJ found at step 2 that plaintiff's impairments
  were not severe and ended the analysis, concluding
  plaintiff was not disabled. This pretermitted the
  need to consider whether he could perform previous
  work or the other vocational factors under steps 4
  and 5.*fn5

Although Hundrieser remanded to the ALJ for completion of the disability determination process, outright reversal is appropriate in this case via either of two alternative routes:

    1. Because of McCullough's unquestionable inability
  to do his past work and the exclusion of other
  relevant work by the Grid, ALJ Bowman's decision
  makes clear no conclusion other than that McCullough
  is still disabled could possibly be supported by
  substantial evidence.*fn6

    2. If the "severity" concept were applied in a way
  consistent with the statute, any finding McCullough's
  impairment is not "severe" would subsume a finding it

  does not prevent him from performing his past
  relevant work. That is of course an insupportable
  finding as to McCullough: It clearly is not supported
  by substantial evidence.

Both Report at 7 and Scruggs, 559 F. Supp. at 104 support the use of the latter approach as a general rule for cases in which Secretary finds a "non-severe" impairment. In this case however both routes are available, so it need not be decided whether the latter course should generally be followed. Reversal is appropriate in either event.

Conclusion

Secretary's objections are overruled and this Court adopts the Report. There is no genuine issue as to any material fact, and McCullough is entitled to a judgment as a matter of law. Secretary is ordered to reinstate McCullough on the disability rolls and pay him the benefits at issue.


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