McDonald v. Heckler, Civ. A. No. 84-2190-G.

• Decision Date: 19 December 1985
• Docket Number: Civ. A. No. 84-2190-G.
• Parties: Claire McDONALD et al., Plaintiffs, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Massachusetts

624 F. Supp. 375

Claire McDONALD et al., Plaintiffs, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.

Civ. A. No. 84-2190-G.

United States District Court, D. Massachusetts.

December 19, 1985.

Sarah Anderson, Linda L. Landry, Neighborhood Legal Services, Lynn, Mass., Laura Rosenthal, Nancy Lorenz, Greater Boston Legal Services, Boston, Mass., and Alan S. Els, Cambridge & Somerville Legal Services, Inc., Cambridge, Mass., for plaintiffs.

Marianne Bowler, Asst. U.S. Atty., Boston, Mass., Edwin Meese, III, U.S. Atty. Gen., Washington, D.C., for defendant.

MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

GARRITY, District Judge.

Plaintiffs in the instant class action challenge the regulatory policies and procedures of the Social Security Administration which are used to deny disability benefits to claimants on the grounds that they do not have severe impairments. These policies are found in both the regulations and social security rulings. 20 C.F.R. §§ 404.1520(c); 404.1521; 416.920(c); 416.921; SSR 82-55; and SSR 82-56. Plaintiffs allege that these regulations¹ and rulings conflict with the definition of disability contained in the Social Security Act ("the Act"), 42 U.S.C. § 423(d)(1)(A) and thus are invalid both facially and as applied. Additionally, plaintiffs aver that such regulations and rulings violate their constitutional rights under the Fifth Amendment.

On June 27, 1985, the court granted plaintiffs' motion for class certification, finding that the requirements of Fed.R. Civ.P. 23 had been satisfied. The court entered an order defining the class as:

All persons residing in Massachusetts who have filed or will file applications for disability benefits under Title II or Title XVI of the Social Security Act, and whose benefits have been or will be denied on the grounds that they do not have a severe impairment, pursuant to the policies set forth in 20 C.F.R. §§ 404.1520(c), 404.1521, 404.1522, 416.920(c), 416.921 and 416.922, and Social Security Rulings cum. ed. 82-55 and 82-56 (1982).²

The court further requested the parties to submit a proposed briefing and hearing schedule for cross-motions for summary judgment by July 5, 1985. Cross-motions were filed and the court had a hearing on the motions on December 2, 1985. After hearing oral argument and considering the briefs and exhibits submitted by the parties, the court grants plaintiffs' motion for summary judgment on class issues and denies defendant's motion.³

I. The Secretary's Severity Policies

The Social Security Act defines the term "disability" as the "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." 42 U.S.C. § 423(d)(1)(A). Congress clarified this definition in 1967 with the addition of 42 U.S.C. § 423(d)(2)(A), which provides:

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.

In 1968, the Secretary issued a regulation which provided that "medical considerations alone can justify a finding that the individual is not under a disability when the only impairment is a slight neurosis, slight impairment of sight or hearing or other slight abnormality or combination of slight abnormalities." 20 C.F.R. § 404.1502(a) (1968). This regulation was replaced in 1978 with the current so-called severity test, which was incorporated as step two of the Secretary's five-step sequential analysis for evaluating disability claims. 20 C.F.R. § 404.1520. The severity test provides:

(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.

"Severe impairment" is defined in 20 C.F.R. § 404.1521, which is set out in the margin.⁴ If a claimant is determined not to have a severe impairment at step two, a finding of not disabled is made without further consideration under steps three through five. 20 C.F.R. § 404.1520(a). Step 3 lists various impairments which are considered per se disabling and a claimant with a listed impairment or its medical equivalent is determined disabled irrespective of age, education and work experience. § 404.1520(d). If a claimant has a severe impairment, but it does not meet or equal a listed impairment, his disability status is further evaluated under steps 4 and 5. Step 4 evaluates a claimant's residual functional capacity and ability to perform his previous work. § 404.1520(e). Step 5 applies if the claimant is found to be incapable of doing his past work. Under step 5, the Secretary determines whether the claimant, considering his age, education and work experience, can perform any other work, and if he can not, he is found disabled. § 404.1520(f). Additionally, on August 20, 1980, the Secretary promulgated a list of examples of impairments which were to be held not severe as a matter of law, regardless of whether they prevented the claimant's performance of his past work. SSR 82-55.

II. The Cross-Motions for Summary Judgment

This court is not the first, and will certainly not be the last, to address the question of whether the Secretary's step two severity test is consistent with the Act. Several courts of appeal have already found the step two regulation either invalid on its face or as applied by the Secretary. See, e.g., Johnson v. Heckler, 7th Cir.1985, 769 F.2d 1202; Yuckert v. Heckler, 9th Cir.1985, 774 F.2d 1365; Baeder v. Heckler, 3rd Cir.1985, 768 F.2d 547. Also, two other courts of appeal have cases similar to the one at bar pending before them. See, Smith v. Heckler, E.D.Cal.1984, 595 F.Supp. 1173; Dixon v. Heckler, S.D.N.Y. 1984, 589 F.Supp. 1494. In resolving the issues presented in the instant action, the court relies principally on the well-reasoned opinion of the 7th Circuit in Johnson v. Heckler, 7th Cir.1985, 769 F.2d 1202. The analysis is persuasive and, in our view, correct. It is thus somewhat disconcerting that the Secretary continues to enforce vigorously the step two regulation after its express invalidation by the Johnson court.

Turning to plaintiffs' motion for summary judgment, their first claim is that the step two regulation as written violates the definition of disability contained in the Act. 42 U.S.C. § 423(d)(1)(A) and (d)(2)(A). In plaintiffs' view, the statutory definition of disability expressly links the concept of severity to functional limitations and vocational considerations, not simply to medical diagnosis. In defense of the regulation, the Secretary contends that the legislative history and the language of the Act, particularly § 423(d)(2)(A), reflect the underlying premise of Congress that some impairments are so slight as to justify an immediate conclusion based on medical evidence alone that they could never prevent a claimant from working. The Secretary seeks to characterize the step two regulation not as an independent test of eligibility, but rather as a de minimis test for screening out frivolous claims.

Although questions of statutory interpretation are often close, the court is persuaded that the Secretary's interpretation of the statutory definition of disability is erroneous. Nothing in the language or legislative history of the Act or its subsequent amendments indicates that Congress intended for a finding of non-disability based on medical factors alone. The statutory language incorporates both medical and vocational factors and emphasizes the causal relationship between the two. In the court's view, Congress did not intend that the concept of severity be measured in a medical vacuum. Rather, Congress intended that the term "severity" represent the point at which a person's impairments, when coupled with his unique vocational limitations, make the prospect of gainful employment sufficiently remote that payment of benefits is warranted.

The court is cognizant of other courts' toleration of the regulation as a necessary de minimis screening test. However, there is nothing in the language of the regulation that compels a de minimis interpretation of the severity requirement. On the contrary, the very vagueness of the term "severity" permits covert manipulation of the severity threshold in response to budget constraints, administrative overburdening, or judicial scrutiny. Furthermore, under the court's construction of the statutory definition, even a de minimis medical threshold of eligibility is inconsistent with the statutory mandate that vocational considerations be factored into the disability equation.

In defense of the regulation, the Secretary maintains that the step two test does address vocational considerations because it calls for an assessment of the effect of an impairment on the claimant's ability to perform "basic work activities." 20 C.F.R. § 404.1521. In the court's opinion, Congress did not intend that a claimant's alleged disability be judged against some fictional average person's ability to perform what the Secretary deems "basic work activities." The Act speaks in terms of "his impairment," "his...