Chico v. Schweiker
| Decision Date | 27 June 1983 |
| Docket Number | No. 1220,D,1220 |
| Citation | 710 F.2d 947 |
| Parties | Luis CHICO, Plaintiff-Appellant, v. Richard SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee. ocket 83-6020. |
| Court | U.S. Court of Appeals — Second Circuit |
Ruben Nazario, Brooklyn, N.Y. (John C. Gray, Jr., Jane Greengold Stevens, Brooklyn Legal Services Corp. B, Brooklyn, N.Y.), for plaintiff-appellant.
Charles S. Kleinberg, Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., Eastern District of New York, Miles M. Tepper, Asst. U.S. Atty.), Brooklyn, N.Y., for defendant-appellee.
Before FRIENDLY, KEARSE and WINTER, Circuit Judges.
Luis Chico appeals from an order of Judge Bramwell in the District Court for the Eastern District of New York, which granted a motion by the Secretary of Health and Human Services (the Secretary) under F.R.Civ.P. 12(c) to dismiss his action to set aside the Secretary's denial of his claims for the establishment of a period of disability, 42 U.S.C. Sec. 416(i), disability insurance benefits, 42 U.S.C. Sec. 423(a), and supplemental security income, 42 U.S.C. Sec. 1381a. Since the legal issue is the same with respect to all three claims and the supplemental security income regulations at 20 C.F.R. 416.920 et seq. mirror those at 20 C.F.R. 404.1520 et seq. for disability benefits, we shall generally refer to Chico's application as one for disability insurance benefits and will cite only the statutes and regulations pertaining to such benefits.
Chico, now 57 years old, was born in Puerto Rico and obtained a third grade education there. He does not understand enough English to carry on a conversation and cannot read or write it. 1 He worked for 20 years as a welding machine operator. His application for disability benefits was predicated on bronchial asthma, angina pectoris, and another undescribed heart ailment. A final decision of the Secretary denied Chico's application on the ground that his medical impairments were not "severe" in that they did not significantly limit his physical or mental ability to do basic work activities. In order to evaluate Chico's challenges to this determination it is necessary to set out the statutory and regulatory context in some detail.
For many years after the creation of the "disability freeze" by the Social Security Amendments of 1954, P.L. 83-761, and of the full-fledged disability insurance program by the Social Security Amendments of 1956, P.L. 84-880, the definition of disability was substantially what is now provided in 42 U.S.C. Sec. 423(d)(1)(A):
(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.
The judicial gloss on the statute imposed burdens on the Secretary, once a claimant had established an inability to return to prior work due to a medically determinable impairment, to show that work suitable for him existed in the geographical area where the claimant lived, see, e.g., Hodgson v. Celebrezze, 357 F.2d 750, 755 (3 Cir.1966), and that the claimant would stand a reasonable chance of getting hired for such work see, e.g., Gardner v. Smith, 368 F.2d 77, 85 (5 Cir.1966). The courts required disability benefits to be granted even to some claimants who had been able to find work of sorts. Thus, Leftwich v. Gardner, 377 F.2d 287, 291 (4 Cir.1967), held that a claimant who, despite a medically "disabling" affliction that prevented his continuing as a coal miner, continued to work four or five hours a day at a dishwashing job to support his family was entitled to benefits. See also, to much the same effect, Flemming v. Booker, 283 F.2d 321 (5 Cir.1960); Hanes v. Celebrezze, 337 F.2d 209 (4 Cir.1964). In 1967, after much debate, Congress disapproved the most extreme of what it regarded as judicial expansions of eligibility by adding what is now 42 U.S.C. Sec. 423(d)(2)(A), P.L. 90-248. 2 This provided, in relevant part:
(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.
The Secretary issued amended regulations to implement the new definition in 1968, 33 F.R. 16, 11749, the most pertinent section of which provided:
Whether or not an impairment in a particular case ... constitutes a disability ... is determined from all the facts of that case. Primary consideration is given to the severity of the individual's impairment. Consideration is also given to such other factors as the individual's age, education, and work experience. Medical considerations alone can justify a finding that the individual is not under a disability where the only impairment is a slight neurosis, slight impairment of sight or hearing, or other slight abnormality or a combination of slight abnormalities. On the other hand, medical considerations alone (including the physiological and psychological manifestations of aging) can, except where other evidence rebuts a finding of "disability," e.g. the individual is actually engaging in substantial gainful activity, justify a finding that the individual is under a disability where his impairment ... is listed in the appendix to this subpart or the Secretary determines his impairment (or combined impairments) to be medically the equivalent of a listed impairment.
20 C.F.R. Sec. 404.1502(a) (1968). Appendix 1 of the regulations, the "Listing of Impairments", was introduced in 1968 to describe in detailed diagnostic terms, quantified where possible, those impairments "which are of a level of severity deemed sufficient to preclude an individual from engaging in any gainful activity". Sec. 404.1506 (1968). A claimant suffering from a "listed impairment", if actually unemployed, was entitled to disability benefits without any need to consider the effect of his age, education, or work experience on his ability to do other work. Under the 1968 regulations, a claimant whose medical condition was neither so serious as the per se disabling "listed impairments" in Appendix 1 nor merely one of the "slight abnormalities" mentioned in Sec. 404.1520(a) (1968) would have his application considered on all the facts, including the degree to which his age, education, and work experience combined with his impairment to affect his ability to engage in substantial gainful activity.
In 1978, the Secretary issued new regulations, 43 F.R. 55349, 3 which were modified in 1980, 45 F.R. 55566. Promulgated to achieve "greater program efficiency" by "limiting the number of cases in which it would be necessary to follow the vocational evaluation sequence" in full, these regulations effected a streamlining of the decisional process. The sequence now followed in evaluating claims of disability is set forth in 20 C.F.R. Sec. 404.1520, which provides:
Sec. 404.1520. Evaluation of disability in general
(a) Steps in evaluating disability. We consider all material facts to determine whether you are disabled. If you are not doing substantial gainful activity, we will first consider your physical or mental impairment(s). Your impairment must be severe and meet the duration requirement before we can find you to be disabled. We follow a set order to determine whether you are disabled. We review any current work activity, the severity of your impairment(s), your residual functional capacity and your age, education, and work experience. If we can find that you are disabled or not disabled at any point in the review, we do not review further.
(b) If you are working. If you are working and the work you are doing is substantial gainful activity, we will find that you are not disabled regardless of your medical condition or your age, education, and work experience.
(c) 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. However, it is possible for you to have a period of disability for a time in the past even though you do not now have a severe impairment.
(d) When your impairment meets or equals a listed impairment in Appendix 1. If you have an impairment which meets the duration requirement and is listed in Appendix 1, or we determine that the impairment is equal to one of the listed impairments, we will find you disabled without considering your age, education, and work experience.
(e) Your impairment must prevent you from doing past relevant work. If we cannot make a decision based on your current work activity or on medical facts alone, and you have a severe impairment, we then review your residual functional capacity and the physical and mental demands of the work you have done in the past. If you can still do this kind of work, we will find that you are not disabled.
(f) Your impairment must prevent you from doing any other work. (1) If you cannot do any work you have done in the past because you have a severe impairment, we will consider your residual functional capacity and your age, education, and past work experience to see if you can do other work. If you cannot, we will find you disabled.
(2) If you have only a marginal education, and long work experience (i.e. 35...
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