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May 22, 1984


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


On May 1, 1984 Magistrate Olga Jurco issued her thoughtful report and recommendations (the "Report," copy attached) in this Social Security disability action. During the intervening three-week period:

    1. Both plaintiff Florinor McKenzie ("McKenzie") and
  defendant Margaret Heckler (the "Secretary") have permitted
  the ten days provided under 28 U.S.C. § 636(b)(1)(B) and (C)
  to elapse, without either having filed any written objections
  to Magistrate Jurco's proposed findings and recommendations.
  Government counsel has apprised this Court's law clerk no
  objections in fact exist to the Report.*fn1
    2. This Court has reviewed both the administrative record and
  the Report.

Magistrate Jurco has dealt with all the issues in a careful way. In part the Report rests on a treatment of the "severity" component of disability wholly consistent with this Court's recent opinion in McCullough v. Heckler, 583 F. Supp. 934 (1984). This Court therefore adopts the Report as its own (while making it clear no opinion whatever is expressed on the constitutional issue posed but not resolved at Report 13-15).*fn2

Accordingly this Court determines there is no genuine issue of material fact, and McKenzie is entitled to a judgment as a matter of law. This Court reverses the Secretary's decision and remands this matter to the Secretary for the sole purpose of determining the onset of McKenzie's date of disability. It is ordered that the Secretary make that determination within 63 days from the date of this decision.


  "3. None of these impairments meets or equals Appendix 1 to
      20 C.F.R. Part 404, Subpart P (1981).
  "4. The evidence contradicts claimant's testimony that she
      is severely limited in her ability to sit, stand, walk, and
      lift, and this testimony is not credible.
  "5. Because the claimant has no impairment that meets or
      equals the Listing of Impairments in Appendix 1, 20 C.F.R.
      Section 404.1578 (1981) directs a finding that she is not
      disabled for the purposes of widow's benefits.
  "6. Because the claimant has no severe impairment, 20
      C.F.R. Section 416.920(c) (1981) directs a finding that she
      is not disabled for the purposes of supplemental security
      income benefits. (R. 5).

This decision became the final decision of the Secretary when the Appeals Council denied claimant's request for review on June 20, 1983 (R. 2-3).

Claimant abandoned her claim for widow's benefits and seeks judicial review of the Secretary's finding that she was not disabled because she has no severe impairment. Claimant also challenges the validity of the applicable regulations 416.920, 416.921 and 416.922 as violative of the Social Security Act and the equal protection component of the Due Process Clause of the Fifth amendment because they foreclose consideration of vocational factors in determining whether an impairment is severe and foreclose combination of non-severe impairments.

Before proceeding to consider the validity of these regulations, it is appropriate to initially review the administrative record and Secretary's findings and determination that the claimant's impairments were "non-severe."

In this context, an overview of applicable regulations implementing the Act will be helpful. To qualify for SSI benefits on the basis of disability, an individual must be disabled as defined in 42 U.S.C. § 1382c.

  "(3)(A) An individual shall be considered to be disabled for
  purposes of this title if he is unable 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 for a continuous period of not less than
  twelve months . . . .
  "(B) . . . 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,
  regardless of whether such work exists in the immediate area in
  which he lives, or whether a specific job vacancy exists for
  him, or whether he would be hired if he applied for work
  "(C) . . . a physical or mental impairment is an impairment
  that results from anatomical, physiological, or psychological
  abnormalities which are demonstrable by medically acceptable
  clinical and laboratory diagnostic techniques."

In 1978, Regulations implementing the definition were promulgated and as amended appear in 20 C.F.R. pts. 404 & 416, subpts. P & I. Disability regulations with regard to Title II benefits and Title VI SSI are virtually identical. Part 404 of the Regulations apply to the SSI claim herein.

Regulation § 416.921, 20 C.F.R., defines a non-severe impairment as an impairment which "does not significantly limit . . . physical or mental abilities to do basic work activities." In addition, because a non-severe impairment does not significantly limit basic work related function, Regulation 416.22, 20 C.F.R. states "neither will a combination of two or more non-severe impairments significantly restrict the basic work-related functions needed to do most jobs." Therefore non-severe impairments cannot be combined to establish a severe impairment.

Basic work activities referred to are explained in Regulation 416.920 as 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

"(2) Capacities for seeing, hearing, and speaking;

  "(3) Understanding, carrying out, and remembering simple

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