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
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
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
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.
REPORT AND RECOMMENDATIONS OF MAGISTRATE OLGA JURCO
On September 21, 1981 claimant Florinor McKenzie filed
applications for supplemental security income (SSI) and
disabled widows benefits under 42 U.S.C. § 1381a and 402(e),
alleging disability as of 1975 from
diabetes, high blood pressure and arthritis (R. 64-73, 77-82).
The Secretary denied both applications initially and on
reconsideration after a review by a physician and disability
examiner in the State agency (R. 83-84, 86-90). A hearing was
held before an administrative law judge (ALJ) before whom
claimant, represented by counsel, testified (R. 24-63). On
April 4, 1983 the ALJ found claimant had physical impairments
of hypertension, diabetes, and minimal arthritis of the
cervical spine. He found further that:
"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
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 416.920, 20 C.F.R. delineates five sequential tests
for disability determination:
(1) if a claimant is gainfully employed, he cannot be
considered disabled; (2) if not gainfully employed, a claimant
must have "severe" physical or mental impairments, if not, the
claimant is not disabled; (3) if impairments are severe and
medical evidence shows they meet the standards of a listed
impairment in Appendix 1, 20 C.F.R. pt. 404, subpt. P, app. 1,
a finding of disability will be made on the medical evidence
alone; (4) if the impairments are severe, but are not
equivalent to a listed impairment, then the claimant's residual
functional capacity is determined; (5) if he can perform his
past work, he is not disabled; if he cannot perform his past
work, but can perform other work, taking into consideration the
residual functional capacity, age, experience and education, he
is not disabled.
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
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