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