McKenzie v. Heckler

• Citation: 589 F. Supp. 1152
• Decision Date: 10 August 1984
• Docket Number: No. 83 C 4878.,83 C 4878.
• Court: U.S. District Court — Northern District of Illinois
• Parties: Florinor McKENZIE, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.

589 F. Supp. 1152

Florinor McKENZIE, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.

No. 83 C 4878.

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

May 22, 1984.

Report and Recommendations May 1, 1984.

On Application For Attorney Fees August 10, 1984.

COPYRIGHT MATERIAL OMITTED

Thomas Grippand, Chicago, Ill., for plaintiff.

Dan K. Webb, U.S. Atty., James J. Kubik, Asst. U.S. Atty., Donna M. Weinstein, HEW Regional Attorney, Chicago, Ill., for defendant.

MEMORANDUM ORDER

SHADUR, District Judge.

On May 1, 1984 Magistrate Olga Jurco issued her thoughtful report and recommendations (the "Report," copy attached) in this Social Security disability action. During the intervening three-week period:

1. Both plaintiff Florinor McKenzie ("McKenzie") and defendant Margaret Heckler (the "Secretary") have permitted the ten days provided under 28 U.S.C. § 636(b)(1)(B) and (C) to elapse, without either having filed any written objections to Magistrate Jurco's proposed findings and recommendations. Government counsel has apprised this Court's law clerk no objections in fact exist to the Report.¹

2. This Court has reviewed both the administrative record and the Report.

Magistrate Jurco has dealt with all the issues in a careful way. In part the Report rests on a treatment of the "severity" component of disability wholly consistent with this Court's recent opinion in McCullough v. Heckler, 583 F.Supp. 934 (1984). This Court therefore adopts the Report as its own (while making it clear no opinion whatever is expressed on the constitutional issue posed but not resolved at Report 13-15).²

Accordingly this Court determines there is no genuine issue of material fact, and McKenzie is entitled to a judgment as a matter of law. This Court reverses the Secretary's decision and remands this matter to the Secretary for the sole purpose of determining the onset of McKenzie's date of disability. It is ordered that the Secretary make that determination within 63 days from the date of this decision.

REPORT AND RECOMMENDATIONS OF MAGISTRATE OLGA JURCO

On September 21, 1981 claimant Florinor McKenzie filed applications for supplemental security income (SSI) and disabled widows benefits under 42 U.S.C. §§ 1381a and 402(e), alleging disability as of 1975 from diabetes, high blood pressure and arthritis (R. 64-73, 77-82). The Secretary denied both applications initially and on reconsideration after a review by a physician and disability examiner in the State agency (R. 83-84, 86-90). A hearing was held before an administrative law judge (ALJ) before whom claimant, represented by counsel, testified (R. 24-63). On April 4, 1983 the ALJ found claimant had physical impairments of hypertension, diabetes, and minimal arthritis of the cervical spine. He found further that:

"3. None of these impairments meets or equals Appendix 1 to 20 C.F.R. Part 404, Subpart P (1981).

"4. The evidence contradicts claimant's testimony that she is severely limited in her ability to sit, stand, walk, and lift, and this testimony is not credible.

"5. Because the claimant has no impairment that meets or equals the Listing of Impairments in Appendix 1, 20 C.F.R. Section 404.1578 (1981) directs a finding that she is not disabled for the purposes of widow's benefits.

"6. Because the claimant has no severe impairment, 20 C.F.R. Section 416.920(c) (1981) directs a finding that she is not disabled for the purposes of supplemental security income benefits. (R. 5).

This decision became the final decision of the Secretary when the Appeals Council denied claimant's request for review on June 20, 1983 (R. 2-3).

Claimant abandoned her claim for widow's benefits and seeks judicial review of the Secretary's finding that she was not disabled because she has no severe impairment. Claimant also challenges the validity of the applicable regulations 416.920, 416.921 and 416.922 as violative of the Social Security Act and the equal protection component of the Due Process Clause of the Fifth amendment because they foreclose consideration of vocational factors in determining whether an impairment is severe and foreclose combination of non-severe impairments.

Before proceeding to consider the validity of these regulations, it is appropriate to initially review the administrative record and Secretary's findings and determination that the claimant's impairments were "non-severe."

In this context, an overview of applicable regulations implementing the Act will be helpful. To qualify for SSI benefits on the basis of disability, an individual must be disabled as defined in 42 U.S.C. § 1382c.

"(3)(A) An individual shall be considered to be disabled for purposes of this title if he 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 twelve months....

"(B) ... 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....

"(C) ... a physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques."

In 1978, Regulations implementing the definition were promulgated and as amended appear in 20 C.F.R. pts. 404 & 416, subpts. P & I. Disability regulations with regard to Title II benefits and Title VI SSI are virtually identical. Part 404 of the Regulations apply to the SSI claim herein.

Regulation 416.920, 20 C.F.R. delineates five sequential tests for disability determination: (1) if a claimant is gainfully employed, he cannot be considered disabled; (2) if not gainfully employed, a claimant must have "severe" physical or mental impairments, if not, the claimant is not disabled; (3) if impairments are severe and medical evidence shows they meet the standards of a listed impairment in Appendix 1, 20 C.F.R. pt. 404, subpt. P, app. 1, a finding of disability will be made on the medical evidence alone; (4) if the impairments are severe, but are not equivalent to a listed impairment, then the claimant's residual functional capacity is determined; (5) if he can perform his past work, he is not disabled; if he cannot perform his past work, but can perform other work, taking into consideration the residual functional capacity, age, experience and education, he is not disabled.

Regulation § 416.921, 20 C.F.R., defines a non-severe impairment as an impairment which "does not significantly limit ... physical or mental abilities to do basic work activities." In addition, because a non-severe impairment does not significantly limit basic work related function, Regulation 416.22, 20 C.F.R. states "neither will a combination of two or more non-severe impairments significantly restrict the basic work-related functions needed to do most jobs." Therefore non-severe impairments cannot be combined to establish a severe impairment.

Basic work activities referred to are explained in Regulation 416.920 as the abilities and aptitudes necessary to do most jobs. Examples of these include —

"(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;

"(2) Capacities for seeing, hearing, and speaking;

"(3) Understanding, carrying out, and remembering simple instructions;

"(4) Use of judgment;

"(5) Responding appropriately to supervision, co-workers and usual work situations; and

"(6) Dealing with changes in a routine work setting."

The first three steps of the sequential evaluation in Reg. 416.920 were "intended as a consolidation and elaboration of long-standing medical-vocational evaluation policies" which were "not to increase nor decrease the allowance/denial ratio," but were to improve efficiency by limiting the number of cases in which it would be necessary to apply the fourth and fifth vocational evaluations sequence. Hundrieser v. Heckler, 582 F.Supp. 1231, 1238 (N.D.Ill. 1984). Explanation of the instances where medical considerations alone would lead to a conclusion of disabled or not disabled is provided in 43 Fed.Reg. at 9296:

"There are, of course, various levels of impairment severity. On the basis of the statutory provisions, existing regulations provide that medical considerations alone can justify a finding of disabled (absent rebutting evidence) where the requisite duration requirement is met and the impairment is listed in the appendix to the regulations or is medically the equivalent of the listed impairment. This, in effect, represents the upper range of impairment severity. Conversely, there is a point in the range of impairment severity below which the effects of the impairment have such a minimal effect on the individual that they would not be expected to interfere with his or her ability to work irrespective of his or her age, education and work experience." (Emphasis added)

A severe impairment is described as one which "significantly" limits the claimant's ability to do basic work activities. 20 C.F.R. §§ 416.920(c), 416.921(a). The regulations do not define "significant." Courts have applied the ordinary usage of the word as "having a meaning," "deserving to be considered" and "having or likely to have an influence or effect;" or conversely, the opposite as "meaningless." Hundrieser, at 1241. Trafton v. Heckler, 575 F.Supp. 742 (D.Me.1983); Jones v. Schweiker, 551 F.Supp. 205, 208 (D.M...