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MCCULLOUGH v. HECKLER

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
  ...

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