Kirk v. Secretary of Health and Human Services

• Decision Date: 22 December 1981
• Docket Number: 80-5295,80-5312 and 80-5340,Nos. 80-1535,s. 80-1535
• Citation: 667 F.2d 524
• Parties: Bobby H. KIRK, James C. Stallings, James Leonard, Herman Melvin, Plaintiffs-Appellants, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 524

667 F.2d 524

Bobby H. KIRK, James C. Stallings, James Leonard, Herman Melvin, Plaintiffs-Appellants, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

Nos. 80-1535, 80-5295, 80-5312 and 80-5340.

United States Court of Appeals Sixth Circuit.

Argued Oct. 6, 1981.

Decided Dec. 22, 1981.

Scott Daniel and D. C. Daniel, Jr., Murfreesboro, Tenn., Michael T. Tabor and Jane Jarvis, West Tenn. Legal Services, Jackson, Tenn., Donald A. Donati, Memphis Area Legal Services, Inc., Memphis, Tenn., for plaintiffs-appellants.

Hal D. Hardin, U. S. Atty., Margaret M. Huff, Asst. U. S. Atty., Nashville, Tenn., W. J. Michael Cody, U. S. Atty., Arthur S. Kahn, Asst. U. S. Atty., Memphis, Tenn., Anne Buxton Sobol, Paul Blankenstein, Robert S. Greenspan, Civ. Div., Appellate Staff, Dept. of Justice, Washington, D. C., for defendant-appellee.

Before KENNEDY and MARTIN, Circuit Judges, and COWEN, ^* Senior Judge, United States Court of Claims.

CORNELIA G. KENNEDY, Circuit Judge.

This consolidated appeal requires that we decide the constitutionality of the medical-vocational guidelines recently authorized by the Secretary of Health and Human Services for use in disability determinations. For the reasons stated herein, we find the guidelines constitutional and within the Secretary's statutory authority to promulgate regulations.

The medical-vocational guidelines at issue here, also known as the "grid," 20 C.F.R. § 1501 et seq. (1981) ¹ provide for an orderly sequence of adjudication for social security disability claims. They were issued in response to Congressional criticism surrounding disparate treatment of apparently similar disability claimants. In 1967, Congress had amended the definition of disability to require, for the first time, explicit consideration of vocational factors in the disability determination. Following these amendments the Secretary developed administrative materials for use by state agencies, but these guidelines were not always available and were irregularly applied. See Vega v. Harris, 636 F.2d 900, 903 (2d Cir. 1981). Congress then requested that the Secretary spell out disability standards better. In response, the guidelines at issue here were drafted. In March, 1978, the medical-vocational guidelines were published as a notice of proposed rule-making. Shortly thereafter, the House Subcommittee in charge of Social Security decided to forego legislative action redefining "disability" until the effect of the new guidelines could be determined. The final regulations became effective on February 26, 1979. 43 Fed.Reg. 55,349 (1978).

The regulations require that an initial determination be made as to whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is found "not disabled." Second, it is determined if the claimant has a severe impairment-one that significantly limits the ability to perform work-related functions; if not, then on the medical evidence alone the claimant is determined to be not disabled. Third, if a severe impairment is found, the impairment is compared against those listed in Appendix 1, 20 C.F.R. Subpart P, Appendix I (1981), to see if, on the medical evidence alone, the claimant can be found to be disabled. Assuming the claimant is not found to be disabled, the fourth step requires inquiry into whether the claimant can perform relevant past work; if so, then the claimant is not disabled. The last step in the sequence is the medical-vocational table challenged here. The ALJ is directed to consider the claimant's residual functional capacity, that is, the level of work the claimant is able to perform (sedentary, light or medium) and the claimant's vocational factors-age, education and prior work experience. See 20 C.F.R. § 404.1520 (1981). By this process it is determined whether the claimant is able to perform substantial gainful activity in the national economy. These are precisely the items which the Social Security Act mandates be taken into consideration. 42 U.S.C.A. § 423(d)(2)(A) (1970).

It is important to note that once these components which make up the guidelines are determined, the guidelines themselves direct a conclusion of disabled or not disabled; however, the claimant has the opportunity to present evidence and to rebut and challenge each and every component that makes up the grid before disability is decided.

Of equal significance are the built-in limitations of the grid. The regulations, 20 C.F.R. Subpart P, Appendix II, § 200.00(a) (1981), specifically provide that only when the findings of fact as to each of the relevant components of the grid "coincide" with the grid's definitions, do the guidelines direct a conclusion as to disability.

Where any one of the findings of fact does not coincide with the corresponding criterion of a rule, the rule does not apply in that particular case and, accordingly, does not direct a conclusion of disabled or not disabled. In any instance where a rule does not apply, full consideration must be given to all of the relevant facts of the case in accordance with the definitions and discussions of each factor in the appropriate sections of the regulations.

Thus, if the characteristics of the claimant do not identically match the description in the grid, the grid is only used as a guide to the disability determination. See, e.g., Moguez v. Harris, 512 F.Supp. 11, 14-15 (D.Colo.1980).

Moreover, the grid also specifically disclaims an ability to predict disability when nonexertional limitations are the focus of a claimant's impairment. 20 C.F.R. Subpart P, Appendix II, § 200.00(e) (1981) provides in pertinent part:

(W)here an individual has an impairment or combination of impairments resulting in both strength limitations and nonexertional limitations, (e.g., mental, sensory or skin impairments) the rules in this subpart are considered in determining first whether a finding of disabled may be possible based on the strength limitations alone and, if not, the rule(s) reflecting the individual's maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs that could be contraindicated by the nonexertional limitations.

Thus, if the nonexertional limitation restricts a claimant's performance of a full range of work at the appropriate residual functional capacity level, nonexertional limitations must be taken into account and a non-guideline determination made.

It must also be noted, in accord with the above, that the grid only applies if the individual is capable of performing a wide range of jobs at the designated level-i.e., sedentary, light or medium.

Finally, the Secretary, in finding that jobs are available in the national economy, has taken administrative notice of the same sources a vocational expert would utilize. See 20 C.F.R. Subpart P, Appendix II, § 200.00(b) (1981). Thus, in most cases, resort to a vocational expert would both be time-consuming and cost inefficient since the effort would only yield information already before the ALJ.

The appellants, Kirk, Stallings, Melvin and Leonard were all denied social security disability benefits by the Secretary after application of the guidelines. Upon their separate appeals to the District Courts (United States District Court for the Western District of Tennessee, Eastern Division; United States District Court for the Middle District of Tennessee, Nashville Division; United States District Court for the Western District of Tennessee, Western Division), the administrative decisions were affirmed. On appeal to this Court appellants raise two distinct questions. First, each alleges that the Secretary's original determination was unsupported by substantial evidence, and thus cannot stand. Secondly, they challenge the medical-vocational guidelines as a whole on a variety of constitutional and statutory grounds. ² We first examine the challenges to the guidelines as a whole, for a decision nullifying the regulations would require reversal and obviate the need to consider the evidentiary challenges.

A. Exceeding Statutory Authority

Appellants argue that the guidelines impermissibly amend the Social Security Act by both altering the judicially created burden of proof and limiting individualized adjudication.

Appellants first challenge is that in contravention of established precedent interpreting the Social Security Act the guidelines attempt to shift the burden of proof on disability. Once a claimant proved he could no longer perform past work, the burden of proof would shift to the Secretary to demonstrate that the claimant could perform other work in the national economy; failing proof of a particular suitable job, the claimant recovered. As noted in Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980):

The burden of proof in a claim for Social Security benefits is upon the claimant to show disability which prevents her from performing any substantial gainful employment for the statutory period. Once, however, a prima facie case that claimant cannot perform her usual work is made, the burden shifts to the Secretary to show that there is work in the national economy which she can perform.

See also Hephner v. Mathews, 574 F.2d 359, 361-62 (6th Cir. 1978). Appellants argue that the medical-vocational guidelines, by permitting the Secretary to meet his burden of proof without resort to testimony from a vocational expert as has been required, in effect shift the burden of proof.

To establish the availability of suitable alternative jobs, courts have traditionally preferred the procedure of calling a vocational expert to testify at the administrative hearing (citations omitted). However, judicial decisions have stopped short of establishing a per se rule requiring such testimony (citations omitted).

Decker v. Harris, 647 F.2d 291, 298 (2d Cir. 1981). See also O'Banner v....