McCoy v. Schweiker, s. 81-1629

Decision Date21 June 1982
Docket Number81-1667 and 81-1756,Nos. 81-1629,s. 81-1629
Citation683 F.2d 1138
PartiesLoyce McCOY, Appellee, v. Richard S. SCHWEIKER, Appellant. Clifford M. STACK, Appellee, v. Richard S. SCHWEIKER, Appellant. James D. DESEDARE, Appellee, v. Richard S. SCHWEIKER, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Donald W. Lingo, Lingo & Johnson, Texarkana, Ark., for appellee mCcoy.

J. L. Whaley, Legal Service of Eastern Missouri, Inc., St. Louis, Mo., amicus curiae.

J. Paul McGrath, Asst. Atty. Gen., Stuart E. Schiffer, Acting Asst. Atty. Gen., Robert S. Greenspan, Frederick Geilfuss, Attys., Civ. Div., Dept. of Justice, Washington, D. C., for appellant; Randolph W. Gaines, Chief of Litigation, Andrew E. Wakshul, Atty., Dept. of Health and Human Services, Baltimore, Md., of counsel.

Dan T. McGrevey, Fort Dodge, Iowa, for appellees.

Before LAY, Chief Judge, and HEANEY, BRIGHT, ROSS, STEPHENSON, * HENLEY, ** McMILLIAN and ARNOLD, Circuit Judges, en banc.

ARNOLD, Circuit Judge.

In each of these three social-security cases the Secretary of Health and Human Services found that the claimants were not currently engaged in substantial gainful activity, that they were suffering from a severe physical impairment significantly limiting their ability to carry out basic work activities, that the impairments involved were not among those specifically listed in Appendix 1 to Subpart P of Part 404, 20 C.F.R. §§ 404.1501 et seq. (1981), and that the claimants were unable to do the jobs they had had in the past. The Secretary then found, however, that each of the claimants retained the ability to do either light or sedentary work. He then considered each claimant's age, education, and work experience and consulted the tables contained in Appendix 2 to Subpart P of Part 404. On the basis of these tables, the Secretary concluded that there were jobs in the national economy that the claimants could perform, and held that a finding that the claimants were not disabled was therefore compelled by the Guidelines.

Suits were brought in the district courts to set aside these denials of benefits. The principal argument urged by the claimants was that the tables in Appendix 2, sometimes called the "grid," exceeded the authority of the Secretary to issue regulations, because they purported to eliminate the Secretary's duty to call a vocational expert as a witness to prove that a claimant who cannot return to his past work can nonetheless do other work that exists in the national economy. 1 The district courts, relying on the numerous strong precedents in this Circuit requiring the use of vocational experts, e.g., Zimiga v. Schweiker, 651 F.2d 611, 612-13 n.2 (8th Cir. 1981); Garrett v. Richardson, 471 F.2d 598 (8th Cir. 1972), agreed that the Guidelines were not an adequate substitute for the testimony of a vocational expert. Each case was remanded to the Secretary for further proceedings in accordance with the district court's opinion, 534 F.Supp. 21. These appeals by the Secretary followed. 2

We consolidated these cases and took the unusual step of directing that they be initially submitted to the Court en banc. The question presented involves an asserted conflict between the Secretary's Guidelines and previous decisions of this Court, and the Court en banc is equipped to address that kind of issue with greater freedom, perhaps, than a panel of three judges, even though the Secretary does not ask us to overrule previous decisions, but simply to evaluate them afresh in light of the new Medical-Vocational Guidelines. We have undertaken to do so, and to examine fully the decisions of other courts of appeals on the question of the Guidelines' validity-decisions most of which were handed down after the district courts decided these cases. After this examination, we are persuaded that the Guidelines, as limited by their own terms and as interpreted by this opinion, are, as against the challenges here asserted, within the power delegated by Congress to the Secretary. We therefore vacate the judgments of the district courts and remand these cases for further proceedings in accordance with this opinion-in particular, for an individual determination, on the facts of each record, whether the Guidelines were applicable and properly applied.

I.

We begin by summarizing briefly the new regulations, which first became effective on February 26, 1979, 43 Fed.Reg. 55,349 (1978). As revised on August 20, 1980, 45 Fed.Reg. 55,584 (1980), the regulations, which we refer to generally as Medical-Vocational Guidelines, are codified as Subpart P of Part 404 of Chapter III of Title 20 of the Code of Federal Regulations, 20 C.F.R. §§ 404.1501 et seq. (1981). These regulations apply to claims that workers insured by reason of earnings covered by social security have become disabled under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. 3

In an attempt to create an orderly and uniform framework for analysis and decision of disability claims, the Guidelines set out a fixed sequence of decision-making that Administrative Law Judges (ALJs) are required to follow. First, a determination is made whether a disability claimant is currently engaged in substantial gainful activity; if so, he must be found not disabled. If the claimant is not engaged in substantial gainful activity, the next question is whether he is suffering from a severe impairment, defined as one that significantly limits the ability to perform basic work-related functions. If a severe impairment is not found, the claimant must be found not disabled. If there is a severe impairment, and it is one listed in Appendix 1 to Subpart P, the claimant is found disabled on the medical evidence alone. If the impairment is not listed in Appendix 1, the next inquiry is whether the claimant can perform relevant past work. If he can, a finding of no disability is required. Finally, if the claimant cannot perform relevant past work, the question then becomes whether he can nevertheless do other jobs that exist in the national economy, despite his having a severe impairment that prevents return to his previous work. At this stage, the ALJ must determine the claimant's residual functional capacity (RFC), that is, what he can still do physically even with his impairment, and also the claimant's age, education, and relevant work experience-the latter three findings being referred to as vocational factors, as opposed to RFC, which is a medical factor. The criteria of age, education, and work experience are relevant because the statute specifies them in defining disability, 42 U.S.C. § 423(d)(2)(A). If the ALJ's findings as to RFC, age, education, and work experience fit any of the combinations of those criteria contained in the Tables in Appendix 2 to Part 404, then the ALJ must reach the conclusion (either "disabled" or "not disabled") directed by the relevant Rule or line of the applicable Table. There are three Tables contained in Appendix 2, which begins on p. 309 of 20 C.F.R. (1981). One Table applies to people whose RFC fits them to do only "sedentary work," Table 2 applies to those with an RFC for "light work," and Table 3 applies to those with an RFC for "medium work."

By way of illustration, the ALJ in Loyce McCoy's case found that Mr. McCoy was not engaged in substantial gainful activity, that he did have a severe medically determinable impairment, that the severe impairment was not listed in Appendix 1, and that the claimant could not return to his past work. The inquiry then became whether Mr. McCoy could do other work. The ALJ found, as a medical fact, that the claimant had the RFC to do light work. 4 Using this finding, together with claimant's age, education, and work experience, the ALJ consulted Rule 202.11 in Table 2 of Appendix 2, which provides:

The ALJ therefore was required to find, and did find, that Mr. McCoy was not disabled. He did not call a vocational expert to testify as to whether claimant could perform other jobs.

The attack on this use of the Tables, or "grids," raises the question whether they make impossible the kind of individualized determination of capacity for employment that the statute and the variousness of the human condition require. Claimants assert, and the district courts essentially agreed, that the grids are an impermissible attempt to fit people into predetermined holes or slots, and that they contravene the statute by forbidding the very kind of vocational testimony that this and other courts, in pre-Guidelines decisions, have traditionally required. To these arguments we now turn.

III.

Our inquiry begins, as it must, with the statute. Congress may of course define disability and prescribe how it must be proved. The Social Security Act, 42 U.S.C. § 423(d)(1), defines "disability" as follows:

(d)(1) The term "disability" means-

(A) inability 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;

(2) For purposes of paragraph (1)(A)-

(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, 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. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

Congre...

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