Marcus v. Bowen, 85 C 453.

• Citation: 696 F. Supp. 364
• Decision Date: 22 September 1988
• Docket Number: No. 85 C 453.,85 C 453.
• Parties: Esther MARCUS, Michele W., by her next friend Marie W., Larry Rhyne, Consuelo Allen, on behalf of themselves and all others similarly situated, Plaintiffs, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant.
• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)

696 F. Supp. 364

Esther MARCUS, Michele W., by her next friend Marie W., Larry Rhyne, Consuelo Allen, on behalf of themselves and all others similarly situated, Plaintiffs, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant.

No. 85 C 453.

United States District Court, N.D. Illinois, E.D.

September 22, 1988.

COPYRIGHT MATERIAL OMITTED

Joseph A. Antolin, John M. Bouman, Hellen Cropper, Mary Elizabeth Kopko, Martha Tonn, Legal Assistance Foundation of Chicago, Chicago, Ill., for plaintiffs.

Anton R. Valukas, U.S. Atty., Mary S. Rigdon, Asst. U.S. Atty., Donna Morros Weinstein, Chief Counsel, Region V, U.S. Dept. of Health and Human Services, Thomas W. Crawley, Deputy Chief Counsel, Steven J. Plotkin, Jeffrey M. Teske, Donald T. McDougall, Michel T. Lamb, Asst. Regional Counsels, Chicago, Ill., for defendant.

MEMORANDUM AND ORDER

MORAN, District Judge.

Plaintiffs were denied disability benefits under the Social Security Act (the "Act"), 42 U.S.C. §§ 401 et seq., Old Age, Survivors, and Disability Insurance ("OASDI"), and 1381 et seq., Supplemental Security Income ("SSI"), following a determination by the Secretary of Health and Human Services ("Secretary") that they did not meet the Listed medical criteria for impairments (the "Listings"), 20 C.F.R. Part 404, Subpart P, Appendix 1, which the Secretary considers to be so severe as to preclude gainful activity. Plaintiffs challenge the Secretary's determinations on behalf of themselves and all similarly situated individuals, claiming that the refusal to evaluate the severity of their impairment in the context of their functional capacities violates the terms of the Act and deprives them of their constitutional right to due process. A class was certified in October 1985, Marcus v. Heckler, 620 F.Supp. 1218 (N.D.Ill.1985), and plaintiff class now moves for summary judgment.¹

Plaintiffs' claim that they were unlawfully denied disability benefits raises two fundamental statutory questions: first, does the statute require the Secretary to determine individually the level of severity of each claimant's impairment or combination of impairments; and, second, if so, can such a requirement be reasonably met by comparing the clinical and laboratory evidence in a claimant's medical history to the medical criteria of specific Listings. The answer to the first question is unequivocally yes. The terms of the Act, as well as numerous court decisions, indicate that if the Secretary fulfills any adjudicatory role at all it is in determining the severity level of the impairments of individual claimants. Further, after a comprehensive review of the legislative and regulatory history, this court concludes that the denial of benefits to class members following comparison of medical indicia of impairment to specific Listings, without reference to the claimant's functional capacities, violates congressional intent.

The statutory and regulatory history of the Social Security disability program spans three decades of bureaucratic entanglement among Congress, administrative agencies, the federal courts and the millions of individuals who have sought entitlement. Amidst this administrative thicket is a constant tension between the need for uniform efficient management practices and just adjudication of individual entitlements. To accommodate this tension Congress has provided specific standards to be employed in an established administrative process and an elaborate system of administrative and judicial review.

This case is, primarily, about methodology for determining disability in three programs with somewhat different statutory mandates.² For a wage earner,³ the Secretary must determine whether he or she (hereafter, for simplicity, "he") has impairments of such severity that, considering his age, education and work experience ("vocational factors"), he is unable to do either his previous work or any other substantial gainful work which exists in the national economy. For a child, the Secretary must determine whether his impairment is of comparable severity, but without consideration of vocational factors. For a widow, widower, or divorced spouse (hereinafter, for simplicity, "spouse"), the Secretary, without consideration of vocational factors, must determine whether he has impairments at a "level of severity which under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity." (We hereafter refer to both "substantial gainful work" and "any gainful activity" as "gainful activity," since the distinction between them is irrelevant to the issues hereinafter discussed.)

Plaintiffs contend that the statutory scheme requires the Secretary to make an individualized determination of a claimant's ability to engage in gainful activity, and that requires an individualized assessment of functional impairment as it relates to that ability. The Secretary contends that he does so with respect to wage earners and that he has established a rational methodology which results in an approximation of the functional limitations of children and spouses, and that is all the statute requires him to do.

The contentions (which, as we shall see, are here presented in an overly simplified fashion) arise in the context of a massive social welfare program. The Secretary, quite properly, argues that Congress granted him broad authority to administer that program and that courts must necessarily defer to his judgment in constructing a methodology to determine disability. Plaintiffs agree with that concept; they insist, however, that the methodology adopted does not follow a statutory mandate to evaluate the individual claimant's ability to engage in gainful activity. We turn then to an overview of that methodology.

That methodology is a sequential screen or sieve. The first sieve screens out those who are still in the work force. The second screens out those who do not have a severe impairment. It is the third sieve which is critical here. The Secretary has established criteria in approximately 120 listings. Each listing sets forth standards for measuring a different medical condition. If a claimant meets a listed impairment standard he is presumed to be disabled. The Secretary does not attempt to determine whether an individual, despite even greater limitations, is a Readers Digest unforgettable character who, triumphing over all adversity, can be a productive member of the work force despite those limitations. He has decided that the effort to accomplish that individualized result would be excessive and he accepts the presumptive disability arising from meeting a listed impairment. Plaintiffs, of course, and as they must (since it is, to that point, a clearly rational process), do not contest that methodology.

It is not necessary, moreover, that the claimant meet a listed impairment. It is enough that his condition be medically equivalent to a listed impairment. Plaintiffs argue, with some force, that the meaning of medical equivalence is somewhat obscure and is poorly understood. That does not lead, however, to the conclusion that the concept is for that reason a violation of the statutory mandate. It does mean that a court should pay careful attention to what the methodology at that point really means.

The Listings specify medical criteria: breath capacity, joint motion, hearing ability and the like. They do not, in and of themselves, measure functional ability to stand, sit, follow instructions, lift or accomplish other of the tasks which may be necessary to engage in gainful activity. Plaintiffs contend that, for that reason, they are deficient to determine whether a person is disabled, and that determination is what is required by statute. The Secretary's response is twofold. The first is that medical equivalence, and the Listings themselves, are pregnant with the concept of functional limitation. Indeed, there are special listings for children precisely because the disabilities for children can be special. The medical equivalence concept permits an evaluation of impairments which do not meet the Listings but which are equally disabling. It is a rational system devised by the Secretary to determine child and spousal disability, and the preference of plaintiffs, or a court for that matter, for another methodology is not enough to invalidate the system the Secretary has chosen. Second, for wage earners, for whom the entitlement is less restricted, step three is not the last sieve. If a wage earner's impairments do not meet or are not medically equivalent to a listing, the Secretary determines what this claimant's residual functional capacity ("RFC") may be and whether, in light of that capacity and his vocational factors, the claimant is disabled.

The role of RFC has figured prominently in the voluminous submissions to this court, and the arguments concerning it have somewhat skewed the debate. It is a term of art which the Secretary has adopted to carry out his statutory mandate; it is not a creature of statute. Plaintiffs argue that RFC is different from functional limitation and that, in practice, its usefulness in assessing a wage earner's functional limitations is tainted by the simultaneous consideration of vocational factors. They contend that a wage earner with positive vocational factors is inevitably denied benefits despite his impairments, if those impairments do not meet or are not equivalent to a specified listing. The Secretary denies that is so and contends that plaintiffs' assumed restrictions on the use of RFC in the evaluation process arises from a misunderstanding of the Secretary's procedures. He insists that RFC is used to measure functional limitations (although not to measure medical equivalence) and, for wage earners, RFC plays a major role in conjunction with vocational factors to determine wage earner disability. At the same time he contends that RFC is somehow more than and...