Moore v. Heckler, Civ. No. 83-0046-B.

• Decision Date: 17 November 1983
• Docket Number: Civ. No. 83-0046-B.
• Citation: 575 F. Supp. 180
• Parties: David MOORE, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Maine

575 F. Supp. 180

David MOORE, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.

Civ. No. 83-0046-B.

United States District Court, D. Maine.

November 17, 1983.

Richard A. Estabrook, Downeast Law Offices, Bangor, Me., for plaintiff.

Paula D. Silsby, Asst. U.S. Atty., Portland, Me., for defendant.

ORDER AFFIRMING THE DECISION OF THE SECRETARY

CYR, District Judge.

This action is brought under section 205(g) of the Social Security Act, as amended Act, 42 U.S.C. § 405(g), for review of the final decision of the Secretary of Health and Human Services Secretary affirming the termination of plaintiff's period of disability and disability insurance benefits.

On April 5, 1971 plaintiff was found to be disabled as of October 15, 1970 Tr. 86-87, as a result of injuries to his eye (and resulting poor vision) apparently sustained in an automobile accident. On February 1, 1982, plaintiff's benefits were terminated administratively Tr. 98-99. The Social Security Administration administrative law judge ALJ, before whom plaintiff, his wife, his attorney, a psychologist, and a medical adviser appeared, determined de novo that plaintiff was not disabled within the meaning of section 223(d) of the Act, 42 U.S.C. § 423(d). The ALJ found that although the plaintiff has a variety of "impairments,"¹ those impairments do not significantly limit plaintiff's ability to do basic work activities and thus are not severe, 20 C.F.R. § 404.1521 (1983), as required by 20 C.F.R. § 404.1520(c). Plaintiff has exhausted his administrative remedies.

Both parties move for summary judgment. Plaintiff challenges the regulation requiring claimants to establish a severe impairment, and contends that the record evidence does not adequately support the finding of nonseverity.

In order to receive disability insurance benefits a claimant must be disabled. "Disability" is defined as

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ... lasting at least a year and of such severity that the claimant ... 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 such work.

42 U.S.C. § 423(d). In 1978, the Secretary prescribed five sequential tests for determining whether a claimant is disabled. See 43 Fed.Reg. 55349 (1978), codified as amended, 20 C.F.R. § 404.1520. See also Goodermote v. Secretary of Health and Human Services, 690 F.2d 5, 6-7 (1st Cir. 1982). The second sequential test requires that a claimant have a severe impairment, that is, an impairment which "significantly limits his physical or mental ability to do basic work activities," 20 C.F.R. § 1520(c). Basic work activities are the abilities and aptitudes necessary to do most jobs, including:

(1) the physical ability to walk, stand, sit, lift, push, pull, reach, carry or handle;

(2) the ability to see, hear and speak;

(3) the mental ability to understand, remember and follow simple instructions;

(4) the ability to make judgments;

(5) the ability to respond appropriately to supervisors, co-workers and usual work situations; and

(6) the ability to deal with changes in a routine work setting.

Id. § 404.1521(b). The second test thus focuses on "medical" considerations, without considering "vocational factors."² 20 C.F.R. § 404.1520(c) (1982). See Goodermote v. Secretary of Health and Human Services, 690 F.2d at 7.

Plaintiff contends that by overemphasizing "medical" concerns this second test "disrupts the vocational focus of the disability determination process which is mandated by the statute and the courts." Plaintiff's Memorandum at 6.³

The Social Security Act directs the Secretary to `adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same' in disability cases. 42 U.S.C. § 405(a). As we previously have recognized, Congress has `conferred on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the ... Act.' Schweiker v. Gray Panthers, 453 U.S. 34, 43, 101 S.Ct. 2633, 2639, 69 L.Ed.2d 460 (1981); see Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977). Where, as here, the statute expressly entrusts the Secretary with the responsibility for implementing a provision by regulation, our review is limited to determining whether the regulations promulgated exeeded (sic) the Secretary's statutory authority and whether they are arbitrary and capricious. Herweg v. Ray, 455 U.S. 265, 275, 102 S.Ct. 1059, 1066, 71 L.Ed.2d 137 (1982); Schweiker v. Gray Panthers, supra, 453 U.S. at 44, 101 S.Ct. at 2640.

Heckler v. Campbell, ___ U.S. ___, ___, 103 S.Ct. 1952, 1957, 76 L.Ed.2d 66 (1983) footnote omitted.

Although "vocational" factors are relevant to some disability determinations, the statute and its history demonstrate the primary importance of medical considerations. The definition of "disability" requires that a claimant suffer an impairment "of such severity that he is ... unable to do his previous work or in view of `vocational' factors other ... work...." Assuredly, the ambiguous reference to "severity" may have been included for grammatical reasons, rather than to introduce an independent "severity" requirement. But this pithy definition contains other partially veiled "tests." For example, the introduction in 1968 of the correlative conjunctions, "not only" and "but also," P.L. 90-248 § 158, 81 Stat. 821, 867-68, apparently embraced the judicially established rule, e.g., Torres v. Celebrezze, 349 F.2d 342, 345 (1st Cir.1965), that the burden shifts to the Secretary once the claimant shows that a severe impairment prevents the claimant from performing past work. See Small v. Califano, 565 F.2d 797, 800-01 (1st Cir.1977). The requirement that the impairment result from abnormalities "which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques," 42 U.S.C. § 423(d)(3), and the requirement that the claimant furnish "such medical and other evidence of his disability as the Secretary may require," id. § 423(d)(5), further evidence the importance Congress has attached to "medical" factors.

A 1954 amendment introduced the concept of "disability" to the Act by preserving the insurance rights of individuals totally disabled prior to retirement. Disability was defined in pertinent part 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 to be of long-continued and indefinite duration." P.L. 761 § 106(d), 68 Stat. 1052, 1080. Two years later Congress enacted disability insurance coverage, incorporating the 1954 definition of disability, P.L. 84-880 § 103(a), 70 Stat. 807, 815. The "vocational" factors, which plaintiff claims are at the heart of the congressional mandate, were not introduced into the statute, until Congress, following the Secretary's lead,⁴ incorporated them into the 1968 amendments, which adopted the current definition of "disability." But the Senate Report accompanying the 1968 amendments makes clear that, in response to overly generous judicial interpretations of the earlier definition of disability, the amendment was enacted to "provide guidelines to reemphasize the predominant importance of medical factors in the disability determination." (1967) U.S.Code, Cong. & Admin.News 2834, 2882.

Indeed, the Senate Report accompanying the 1968 amendments indicates that Congress intended to establish a separate severity test.

The bill would provide that a worker would be disabled only if it is shown that he has a severe medically determinable physical or mental impairment or impairments; that if, despite his impairment or impairments, an individual still can do his previous work, he is not under a disability; and that if, considering the severity of his impairment together with his age, education, and experience, he has the ability to engage in some other type of substantial gainful work that exists in the national economy even though he can no longer do his previous work, he also is not under a disability....

Id. emphasis added. Therefore, the regulations, which incorporate and explicate the severity test, do not exceed the Secretary's statutory authority.⁵ In light of the regulations' long history, see note 4 supra, and since they link "severity" to the effects of the impairment upon the work abilities of the claimant, they are neither capricious nor arbitrary.

The Court therefore must determine whether the ALJ's finding that plaintiff's impairments are not severe is supported by substantial evidence, 42 U.S.C. § 405(g), that is, such evidence as a reasonable mind viewing the entire record could accept as adequate to support the conclusion drawn, Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222 (1st Cir. 1981).

Under the regulations an impairment is severe if it significantly limits a claimant's physical or mental ability to do basic work activities. "The term significant means inter alia `having a meaning,' `deserving to be considered,' and `having or likely to have an influence or effect,' as opposed to `meaningless.'" Shaw v. Heckler, No. 83-0045-B, at 7 (D.Me. October 7, 1983) unpublished Order, quoting Webster's Third New International Dictionary (Merriam Co.1976) (unabridged).

The history of the regulation indicates that the Secretary intended a broad reading of "significant." The "not severe"...