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MCCULLOUGH v. HECKLER
March 30, 1984
JOHN MCCULLOUGH, PLAINTIFF,
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
"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
(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
(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
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