Dixon v. Heckler

• Decision Date: 22 June 1984
• Docket Number: 83 Civ. 8264 (MEL),83 Civ. 8609 (MEL) and 84 Civ. 110 (MEL).,No. 83 Civ. 7001 (MEL),83 Civ. 7001 (MEL)
• Citation: 589 F. Supp. 1494
• Parties: David DIXON, Ricardo Ramirez, Ophelia Casey, Dominga Carrasquillo, Joanne Lockett, individually and on behalf of all others similarly situated, Plaintiff, v. Margaret M. HECKLER, as Secretary of the Department of Health and Human Services, Defendant. Eulalia TEREZ, individually and on behalf of all others similarly situated, Plaintiff, v. Margaret M. HECKLER, as Secretary of the Department of Health and Human Services, Defendant. Carmen FELICIANO, individually and on behalf of all others similarly situated, Plaintiff, v. Margaret M. HECKLER, as Secretary of the Department of Health and Human Services, Defendant. Tomasina GONZALEZ, Plaintiff, v. Margaret M. HECKLER, as Secretary of the Department of Health and Human Services, Defendant.
• Court: U.S. District Court — Southern District of New York

589 F. Supp. 1494

David DIXON, Ricardo Ramirez, Ophelia Casey, Dominga Carrasquillo, Joanne Lockett, individually and on behalf of all others similarly situated, Plaintiff, v. Margaret M. HECKLER, as Secretary of the Department of Health and Human Services, Defendant.

Eulalia TEREZ, individually and on behalf of all others similarly situated, Plaintiff, v. Margaret M. HECKLER, as Secretary of the Department of Health and Human Services, Defendant.

Carmen FELICIANO, individually and on behalf of all others similarly situated, Plaintiff, v. Margaret M. HECKLER, as Secretary of the Department of Health and Human Services, Defendant.

Tomasina GONZALEZ, Plaintiff, v. Margaret M. HECKLER, as Secretary of the Department of Health and Human Services, Defendant.

Nos. 83 Civ. 7001 (MEL), 83 Civ. 8264 (MEL), 83 Civ. 8609 (MEL) and 84 Civ. 110 (MEL).

United States District Court, S.D. New York.

June 22, 1984.

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Conrad A. Johnson, David Goldfarb, John E. Kirklin, Director of Litigation, Civ. Appeals and Law Reform Unit, Arthur J. Fried, Supervising Atty., Administrative Law Unit, The Legal Aid Soc., New York City, for plaintiffs; Jon C. Dubin, Ian Feldman, Stephen J. Loffredo, Bronx Neighborhood Office, Nancy Morawetz, The Legal Aid Soc., Civ. Appeals and Law Reform Unit, New York City, of counsel.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendant; Susan E. Harkins, Asst. U.S. Atty., New York City, Tamar Klein, Asst. Regional Atty., Dept. of Health and Human Services, Brooklyn, N.Y., of counsel.

LASKER, District Judge.

I.

These cases present a question whose determination has twice been reserved by the Court of Appeals for this Circuit:¹ whether the denial of federal disability claims under the so-called "severity regulation" adopted by the Secretary of Health and Human Services (the "Secretary") violates the Social Security Act (the "Act") because the regulation conflicts with the definition of "disability" contained in the Act. Under the regulation,² claims for disability benefits under the Supplemental Security Income ("SSI") or Old Age Survivors and Disability Insurance ("OASDI") programs are denied without regard to the claimant's age, education, employment experience, ability to return to prior work, or other vocational factors, if the claimant's impairment is judged to be "not severe" based on medical criteria alone. In recent weeks, two judges of this Court, ruling on individual Social Security appeals, have reversed the Secretary's denial of benefits under the severity regulation, holding that the severity regulation conflicts with the statutory definition of disability and is invalid.³ In the instant cases, the individual plaintiffs, on behalf of themselves and all other similarly situated, together with the State of New York and the Commissioner of the New York State Department of Social Services, seek declaratory and injunctive relief against the Secretary's use of the severity regulation in evaluating disability claims, and against her policy of refusing to consider the combined effects of impairments found to be "non-severe."⁴

Jurisdiction is alleged under 42 U.S.C. §§ 405(g) and 1383(c)(3), which provide for judicial review of the Secretary's decisions as to disability benefits; 28 U.S.C. § 1331 (federal question jurisdiction), and 28 U.S.C. § 1361 (mandamus jurisdiction).⁵ This memorandum addresses plaintiffs' motion for class certification and for a preliminary injunction. In a separate memorandum issued this date, motions to intervene by the State of New York, the Commissioner of the New York State Department of Social Services, and claimants Ricardo Ramirez, Ophelia Casey, Dominga Carrasquillo, and Joanne Lockett have been granted.

A. Statutory and Regulatory Background

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..."⁶

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, 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...."⁷

The Secretary is authorized to establish rules and regulations, consistent with the Act, governing the determination of disability claims.⁸

Before 1978, the Secretary's regulations⁹ set forth a general discussion of the factors to be applied in evaluating disability claims. In pertinent part, it was stated that disability

"is determined from all the facts of the 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 ... can, except where other evidence rebuts a finding of `disability'... justify a finding that the individual is under a disability where his impairment ... is listed in the appendix to the subpart...."¹⁰

In 1978 the Secretary revised the regulations, establishing a five-step sequential procedure for determining whether a claimant is disabled.¹¹ These regulations were modified again in 1980, primarily to make their language clearer.

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. As the first step, the Secretary ascertains whether the claimant is working; if so, a finding of "not disabled" follows. Next (step 2), 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." The regulation specifically provides that at this step the Secretary "will not consider your age, education, and work experience."¹² 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 step 2, is not a "listed" impairment under step 3. In such cases, the Secretary determines whether, despite the claimant's impairment, he is able to perform his past work. If not, 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.¹³ In addition to these regulations, the Secretary issued a Social Security Ruling in 1982 (SSR 82-55) which instructs Social Security administrators not to consider the combined effects of impairments which do not individually meet the Secretary's "severity" standard. Accordingly, someone who suffers several impairments deemed non-severe will be denied benefits regardless of their combined effect. SSR 82-55 also lists 20 specific impairments which the Secretary has determined are non-severe per se. Moreover, the ruling is binding on all Social Security Administration personnel, including administrative law judges and the Appeals Council, and was made effective retroactively to August 20, 1980.

B.

The named plaintiffs were found "not disabled" under the severity regulation (the second step of the Secretary's sequential evaluation), and thus were denied benefits on the grounds that the medical evidence alone failed to establish the existence of an impairment which significantly limited their ability to perform basic work activities. A description of the cases of some of the named plaintiffs illustrates the operation of the Secretary's policies.

David Dixon suffers pain in his right hip from a serious fracture which he sustained in an automobile accident in 1969, and attends the Harlem Rehabilitation Center as an outpatient for six hours a day, five days a week. He is blind in one eye, (also as a result of the automobile accident) suffers from a personality disorder, and has a verbal I.Q. of 68. The Administrative Law Judge ("ALJ") found each of Dixon's impairments to be non-severe under the second step of the five-step disability analysis. As to the hip fracture, The ALJ found that if Dixon underwent "intensive therapy" he would "possibly enhance sic his current disability." Dixon's blindness in one eye was found not to be a severe impairment because he retained essentially normal sight in his other eye. As to Dixon's mental capacity and psychological problems, the ALJ stated that there was "a good possibility" that these problems would not prevent Dixon from working if he obtained "retraining and some program to help him with his motivation." Because the ALJ considered each impairment not to be severe based on the medical evidence, he did not consider (and, under the regulation, was not free to consider) whether...