United States District Court, Northern District of Illinois, E.D
September 19, 1984
EDNA JOHNSON AND JEROME MONTGOMERY, ON THEIR OWN BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED,. PLAINTIFFS,
MARGARET HECKLER, SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT.
The opinion of the court was delivered by: Bua, District Judge.
Plaintiffs in this class action are or have been applicants
for or recipients of disability benefits under Title II and/or
Title XVI of the Social Security Act (the "Act"). They have
been denied benefits on the ground that their disabilities are
not severe enough to prevent them from working. They challenge
the validity of the applicable regulations, 20 C.F.R. §§
404.1520(c), 416.920(c), 404.1522, 416.922 (1983) and Social
Security Ruling ("SSR") 82-55 (cum. ed. 1982), as violative of
the Act and the equal protection component of the Due Process
Clause of the Fifth Amendment to the
United States Constitution. The defendant is the Secretary of
the Department of Health and Human Services ("HHS"), who
administers the Old-Age and Survivors Disability Insurance
("OASDI") and Supplemental Security Income ("SSI") programs
through the Social Security Administration ("SSA"), and
promulgates regulations and rulings interpreting the
Plaintiffs submitted a motion for summary judgment, pursuant
to Fed.R.Civ.P. 56, seeking declaratory and injunctive relief.
The Secretary submitted a cross-motion for summary judgment.
For the reasons stated herein, the plaintiffs' motion for
summary judgment is granted and the Secretary's cross-motion
I. THE CHALLENGED REGULATIONS AND THE ACT
Plaintiffs challenge the above regulations on two grounds:
(1) 404.1520(c) and 416.920(c) do not consider vocational
factors (age, education, and work experience) and residual
functional capacities; and (2) 404.1522, 416.922, and SSR
82-55 do not combine "nonsevere" impairments. Before
proceeding to consider the validity of these regulations, an
overview of the regulations and the Act is helpful.
The OASDI and SSI programs provide for the payment of
benefits to disabled persons. Under both programs, a person is
considered disabled if he or she 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
12 months . . .
42 U.S.C. § 423(d)(1)(A) & 1382c(a)(3)(A). The Act provides
that "for purposes of" applying this definition, 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. . . .
42 U.S.C. § 423(d)(2)(A) & 1382c(a)(3)(B).
The Secretary is authorized to establish rules and
regulations, consistent with the Act, governing the
determination of disability claims. 42 U.S.C. § 405(a) &
Pursuant to this authority, the Secretary established a
five-step sequential procedure for determining whether a
claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920 (1983).
Under the existing regulations, if the claimant is found not to
be disabled under any one of the sequential tests, the analysis
ends and the remaining steps of the analysis are not completed.
See §§ 404.1520(a), 416.920(a). As the first step, the
Secretary ascertains whether the claimant is working; if so, a
finding of "not disabled" follows. In the second step, the
Secretary determines, solely on the basis of medical factors,
whether the claimant has a "severe" impairment which
"significantly limits [his] physical or mental ability to do
basic work activities." §§ 404.1520(c), 416.920(c). The
regulation specifically provides that at this second step the
Secretary "will not consider your age, education, and work
experience." Plaintiff's first ground relates to this refusal
to consider vocational factors in the second step and the
resulting possibility that vocational factors will be
foreclosed if the inquiry stops after the second step.
If the claimant is determined to have a "severe" impairment
under this definition, the Secretary next considers (Step 3)
whether the impairment is one which is listed in Appendix 1 of
the regulations; if so, the claimant is found to be disabled
without requirement of further proof that the impairment
prevents him from working. The fourth step comes into play if
the claimant's impairment, though deemed "severe" under the
second step, is not a "listed" impairment under the third
step. In cases, the Secretary determines (Step 5) whether,
considering the claimant's age, education, and work
experience, his impairment
prevents him from doing any other work available in the
national economy. If the claimant cannot, he is found to be
disabled and his claim is approved. See Canon v. Harris,
651 F.2d 513, 517 (7th Cir. 1981).
The Secretary acknowledges that the effect of the sequential
procedure is that denials of claims at the second step occur
"on the basis of medical considerations alone." SSR 82-56
(cum. ed. 1982). To implement this policy, SSR 82-55 lists 20
impairments which are nonsevere per se on the basis of medical
evidence alone. SSR 82-55 is binding on all SSA personnel,
including administrative law judges and the Appeals Council.
The challenged regulations, 20 C.F.R. §§ 404.1522 and 416.922
(1983) provide: "We will consider the combined effects of
unrelated impairments only if all are severe." In addition to
these regulations, SSR 82-55 instructs Social Security
administrators not to consider the combined effects of
nonsevere impairments because inasmuch "as a nonsevere
impairment is one which does not significantly limit basic
work-related functions, neither will a combination of two or
more such impairments significantly restrict the basic
work-related functions needed to do most jobs."
II. CHALLENGED REGULATIONS APPLIED TO THE NAMED PLAINTIFFS
The named plaintiffs were found "not disabled" under the
severity regulation (the second step of the sequential
procedure), and thus were denied benefits on the grounds that
the medical evidence alone failed to establish the existence
of a "severe" impairment — one which significantly limited
their ability to perform basic work activities. The application
and effect of the challenged regulations is illustrated by the
cases of the named plaintiffs.
Plaintiff Edna Johnson was denied SSI disability benefits.
Examining the Administrative Record in the light most
favorable to the Secretary, "the claimant has the following
impairment(s): diabetes, lumbago, anxiety, neurosis and
chronic duodenal ulcer." (J. 15). While the Administrative Law
Judge ("ALJ") acknowledged and examined each of these
impairments, it appears from the record that he held each
impairment separately did not significantly limit the ability
to perform basic work-related functions (J. 14). The ALJ did
not expressly consider the combined effect of her impairments.
The ALJ never considered the severity of Johnson's impairments
in light of her vocational factors. The ALJ concluded that her
claim is being denied on medical considerations alone without
consideration of vocational factors. (J. 15). For support, the
ALJ cited § 416.920(c).
Plaintiff Jerome Montgomery was denied continued OASDI
disability benefits. Examining the record in the light most
favorable to the Secretary, the "claimant has the following
impairments: atypical chest pain, hypertension, diabetes
mellitus, and status post fractures of the left hip, leg and
foot" (M. 10). The Appeals Council ("AC") held each impairment
to be nonsevere per se according to SSR 82-55 (M. 9). Even
though the AC concluded that the claimant's impairments "did
not constitute a severe impairment . . . either singly or in
combination" (M. 9), the record reveals that the AC held each
impairment to be nonsevere without considering the combined
effects of the nonsevere impairments. In addition, the AC did
not consider the severity of Montgomery's impairments in light
of his vocational factors (M. 8).
The plaintiff class, as defined, includes Title II and Title
XVI claimants who, like the named plaintiffs, were and are
denied benefits as a result of the application of the
challenged regulations to them at the second step.
See Order of December 7, 1983. 100 F.R.D. 70.
III. THE SEVERITY REGULATION
The challenged policies of refusing to consider vocational
factors of age, education and work experience, and refusing to
combine the effects of nonsevere impairments are embodied in
the second step of
the sequential procedure. The second step has been called the
severity regulation since it determines whether a claimant's
impairment is severe so as to continue to the next steps in
the procedure. While the Seventh Circuit Court of Appeals has
never addressed the validity of the severity regulation, other
Circuit Courts acknowledge the conflict between the severity
regulation and the letter of §§ 423(d)(2)(A) & 1382c(a)(3)(B).
Delgado v. Heckler, 722 F.2d 570, 574 (9th Cir. 1983); Chico v.
Schweiker, 710 F.2d 947, 953 (2d Cir. 1983). In Chico, Judge
the close question of the validity of the
`severity' regulation, involving as it does a
seeming conflict between the letter of §
423(d)(2)(A), on the one hand, and, on the other,
the Secretary's understandable desire to
supply . . . some threshold that a claimant must
pass before the Social Security Administration is
required either to apply the Appendix 2 guidelines
or to call vocational experts. . . .
710 F.2d at 953.
In view of the Secretary's authority under § 405(a) to
establish regulations implementing the disability provisions of
the Act, our review "is limited to determining whether the
regulations promulgated exceeded the Secretary's statutory
authority and whether they are arbitrary and capricious."
Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d
66 (1983). However, it is clear that "regulations, in order to
be valid must be consistent with the statute under which they
are promulgated," United States v. Larionoff, 431 U.S. 864,
873, 97 S.Ct. 2150, 2156, 53 L.Ed.2d 48 (1977), and the
agency's "interpretation of the statute cannot supercede the
language chosen by Congress." Monhasco Corp. v. Silver,
447 U.S. 807, 825, 100 S.Ct. 2486, 2497, 65 L.Ed.2d 532 (1980).
The starting point for this analysis, as Chico points out, is
the language of the statutory definition of "disability." 710
F.2d at 953. The statutes, §§ 423(d)(2)(A) & 1382c(a)(3)(B)
speak of an impairment (or impairments) which is "of such
severity that" the claimant "is not only unable to do his
previous work but cannot, considering his age, education and
work experience," perform any substantial gainful work.
According to the plaintiffs' interpretation of the statute,
vocational factors of age, education and work experience
should be considered twice in a disability evaluation. In the
second step, these factors are considered along with medical
factors to determine the claimant's ability to do his previous
work in light of his impairments. In the fifth step, the
vocational factors relate to the Secretary's burden to show
that the claimant can still perform some type of substantial
gainful activity existing in the national economy.
By contrast, the plaintiffs point out that the severity
regulation in the second step restricts to medical factors
alone the claimant's attempt to establish that his impairment
is severe, i.e., that it significantly limits his ability to
perform "basic work-related activities." The regulation states
that the SSA "will not consider your age, education, and work
experience" at the second step. Plaintiffs conclude that the
severity regulation is facially inconsistent with the statute's
mandate to the Secretary to consider vocational factors of age,
education, and work experience and residual functional
capacity. Dixon, et al. v. Heckler, 589 F. Supp. 1494 (S.D.N Y
1984); Smith, et al. v. Heckler, Civ. No. S-83-1609 (E.D.Cal.
June 6, 1984). Dixon and Smith are both class action
cases in which the courts found the severity regulation to be
inconsistent with the statute since it wrongfully precludes a
finding as to whether the claimant is able to do his past
relevant work or whether, considering vocational factors,
claimant can do other work.
The Court disagrees that the statute mandates consideration
of vocational factors and residual functional capacity at the
second step. However, the severity regulation is invalid since
it impermissibly increases the claimant's burden of proof as
defined in the statute. Hundrieser v. Heckler, 582 F. Supp. 1231
at 1240 (N.D.Ill. 1984).
By substituting "basic work activities" in the second step
for "previous work," the severity regulation increases the
showing which a claimant must make in order to establish a
prima facie case of disability. The Secretary in SSR 82-56
acknowledges that an impairment which does-not prevent basic
work activities may prevent past work. Under the severity
regulation, the Secretary states: "When there is no significant
limitation in the ability to perform these types of basic
work-related functions, an impairment will not be considered to
be severe even though it may prevent the individual from doing
work that the individual has done in the past." Thus, while an
impairment may not affect basic work activities, it may still
prevent the claimant from doing his previous work. Scruggs v.
Schweiker, 559 F. Supp. 100, 103 (M.D.Tenn. 1982). In Scruggs,
the court confronted the problem of a second step conclusion
that an impairment is nonsevere in light of basic work
activities, and concluded that:
. . this inference in all cases may be unfair.
For example, a less than severe hearing loss to
an individual may prevent that individual from
continuing in his present occupation requiring
better hearing than the individual retains. In
another example, an individual who has worked at
heavy work may be restricted from continuing in
heavy lifting by a less than severe muscular
strain, or by some other nonsevere health
559 F. Supp. at 103.
In contrast to the severity regulation, the statute plainly
states that a claimant need only show that an impairment
prevents him from doing his previous work in order to make out
a prima facie case of disability. This interpretation of the
claimant's burden of proof under the statute is
well-established. Jones v. Heckle, 702 F.2d 616, 620 (5th Cir.
1983); Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir. 1982);
Kirk v. Secretary of Health and Human Services, 667 F.2d 524,
529 (6th Cir. 1981); Hall v. Secretary of HEW, 602 F.2d 1372,
1375 (9th Cir. 1979); Small v. Califano, 565 F.2d 797, 800 (1st
Cir. 1977). In Whitney, the Seventh Circuit Court of Appeals
interpreted the statute to require that the claimant prove "an
impairment of sufficient severity . . . which precludes the
type of work previously engaged in. . . ." 695 F.2d at 786.
Since the severity regulation increases the claimant's burden
of proof as defined by the statute, the regulation is
inconsistent with the Act and is therefore beyond the scope of
the Secretary's statutory authority. § 405(a) (The Secretary is
empowered to promulgate rules "not inconsistent with the
provisions of this subchapter, which are necessary and
appropriate to carry out such provisions.")
Two recent cases involving individual claims have followed
a similar interpretation of the Act to either ignore or
narrowly construe the severity regulation. In Hundrieser v.
Heckler, supra, J. Moran narrowly construed the severity
regulation in the same manner as this Court. He concluded that
"by making out a prima facie case of disability through showing
an inability to do past work due to `an impairment' the
claimant necessarily satisfies the severity regulation."
582 F. Supp. 1231 at 1242-1243 (N.D.Ill. 1984). J. Moran also noted,
as this Court did, that this narrow construction protects
"claimants from a statutorily unwarranted increase in the
burden of making a prima facie case of disability." Id.
In Lucena v. Secretary of Health and Human Services,
572 F. Supp. 130 (D.P.R. 1983), the Court ignored the severity
regulation's focus on basic work activities and concluded that
the claimant had established a prima facie case of disability
"where the medical evidence establishes that Plaintiff is
unable to perform past work. . . ." 572 F. Supp. at 133. See
Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983). The
Court recognized, as did this Court, that a prima facie
severe impairment should be measured against the claimant's
ability to do his past work, and not against his ability to do
most jobs or basic work activities. Rather, it is the
Secretary's burden to rebut the claimant's prima facie case by
showing his ability to do most jobs or other work in the
These two cases reaffirm this Court's reading of the
statutory definition of severity. However, this Court
disagrees with the court in Hundrieser that the conflict
between the statutory definition and the severity regulation
stems from an over-broad interpretation of the regulation by
the Secretary. Hundrieser, supra at 25. The conflict stems from
the regulation itself and its reference to basic work
activities, instead of "previous work" as contained in the
statute. Therefore, this Court believes that the plaintiffs
have presented a strong case of inconsistency between the Act
and the Secretary's severity regulation. McCoy v. Schweiker,
683 F.2d 1138, 1143-1144 (8th Cir. 1982) (en banc).
IV. THE REFUSAL TO COMBINE NONSEVERE IMPAIRMENTS
Plaintiffs present an even stronger case of inconsistency
when they attack the validity of the regulations which refuse
to combine the effects of nonsevere impairments. Both
regulations, §§ 404.1522 and 416.922, state: "We will consider
the combined effects of unrelated impairments only if all are
severe and expected to last 12 months." In addition, SSR 82-55
sets forth the dubious logic upon which the regulations rest:
"Inasmuch as a nonsevere impairment is one which does not
significantly limit basic work-related functions, neither will
a combination of two or more such impairments significantly
restrict the basic work-related functions to do most jobs."
The statutory definition of disability refers to "impairment
or impairments" which are so severe that they prevent claimant
from doing past work or other work in the national economy.
This statutory language has been construed to require
consideration of the combined effect of all of the claimant's
impairments, whether severe or nonsevere. Bittel v. Richardson,
441 F.2d 1193, 1195 (3rd Cir. 1971); Griggs v. Schweiker,
545 F. Supp. 475, 477 (S.D.W. Va. 1982); Rodriguez v. Schweiker,
523 F. Supp. 1240, 1246 (E.D.Pa. 1981). In Griggs, the court set
forth the proper interpretation of the statute:
In evaluating effects of various impairments upon
a disability benefit claimant, the Secretary may
not fragmentize them, but must treat them in
combination. Hicks v. Gardner, 393 F.2d 299 (4th
Cir. 1968). Disability may result from a number of
impairments which, taken separately, might not be
disabling, but whose total effect, taken together,
is to render claimant unable to engage in
substantial gainful activity. Bass v. Celebrezze,
238 F. Supp. 355 (D.C.S.C. 1965).
545 F. Supp. at 477.
Since this Court finds no Seventh Circuit case on this
point, it adopts the plain meaning of the statute as construed
in the above cases: the statute requires the Secretary to
consider the combined effect of all of the claimant's
impairments. Therefore, §§ 404.1522, 416.922, and SSR 82-55 are
invalid as beyond the Secretary's statutory authority because
they are inconsistent with §§ 423(d)(2)(A) and 1382c(a)(3)(B)
of the Act.
The motion of plaintiff class for summary judgment on the
issue of the validity of the challenged regulations is
granted. The Secretary's cross-motion for summary judgment is
denied. Since it finds that the challenged regulations violate
the Act, the Court declines to reach the constitutional issue
raised by the plaintiffs since it is not necessary or
essential to a decision in the case.
Accordingly, the Court declares that:
(1) defendant's denial of disability claims at the second
step of the sequential procedure on the basis of inability to
do basic work activities, as opposed to inability to do
previous work, and 20 C.F.R. §§ 404.-1520(c) and 416.920(c)
(1982), and SSR 82-56, insofar as each establishes and requires
this policy, violates 42 U.S.C. § 423(d) and 1382c(a)(3)(A),
(2) defendant's policy of refusing to combine nonsevere
impairments, and 20 C.F.R. §§ 404.1522, 416.922 (1982) and SSR
82-55 (1982) insofar as each establishes and requires this
policy, violates 42 U.S.C. § 423(d) and 1382c(a)(3)(A), (B),
This Court enters an injunction enjoining defendants from
enforcing 20 C.F.R. §§ 404.1520(a)-.1522 and 416.920(c)-.922
and SSRs 82-55 and 82-56 insofar as they require application of
either of the above policies. Injunctive and declaratory relief
with respect to the class as a whole is appropriate where, as
in this case, the Secretary's policies are generally applicable
to the class. See Order of December 7, 1983.
The Court also enters preliminary and permanent injunctions
(1) to hold new disability hearings for class members; and
(2) to reinstate OASDI and/or SSI benefits pending SSA
hearing determinations for class members whose benefits had
been terminated as a result of the defendant's policies
determined unlawful by this Court and for whom new disability
hearings are to be held; and
(3) grant retroactive benefits to class members who, after
a new hearing, are found to be disabled.
In addition, pursuant to 42 U.S.C. § 405(g), the Court
reverses the Secretary's decision in the cases of Edna Johnson
and Jerome Montgomery and remands them for determination of
their entitlement to disability benefits without application
of the challenged policies.
IT IS SO ORDERED.
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