Powell v. Schweiker

• Decision Date: 14 May 1981
• Docket Number: No. 80-465-Civ-J-B.,80-465-Civ-J-B.
• Parties: Wendell POWELL, by and through Sylvia Powell, his mother and next friend, and Wanda Williams, by and through Gloria Williams, her mother and next friend, individually and on behalf of all others similarly situated, Plaintiffs, v. Richard S. SCHWEIKER, as Secretary of the Department of Health and Human Services of the United States, Defendant.
• Court: U.S. District Court — Middle District of Florida

514 F. Supp. 439

Wendell POWELL, by and through Sylvia Powell, his mother and next friend, and Wanda Williams, by and through Gloria Williams, her mother and next friend, individually and on behalf of all others similarly situated, Plaintiffs, v. Richard S. SCHWEIKER, as Secretary of the Department of Health and Human Services of the United States, Defendant.

No. 80-465-Civ-J-B.

United States District Court, M. D. Florida, Jacksonville Division.

May 14, 1981.

COPYRIGHT MATERIAL OMITTED

Amy E. Hirsch, Anne Swerlick, Jacksonville Area Legal Aid, Inc., Jacksonville, Fla., for plaintiffs.

Alan M. Grochal, Ralph W. Gaines, Chief of Litigation, Social Security Div., Dept. of Health and Human Services, Baltimore, Md., Ernst D. Mueller, Asst. U. S. Atty., Jacksonville, Fla., for defendant.

OPINION AND ORDER

SUSAN H. BLACK, District Judge.

This cause is before the Court on defendant's Motion for Summary Judgment, filed herein on August 28, 1980, and on plaintiff's Motion for Class Certification, filed herein on August 18, 1980, and for Summary Judgment, filed herein on December 23, 1980. The Court heard oral argument on January 27, 1981.

Plaintiff filed this suit as a class action on behalf of all minor children denied Supplemental Security Income (SSI) disability benefits pursuant to regulations promulgated by defendant. He seeks declaratory and injunctive relief invalidating the regulations as inconsistent with both the regulatory scheme and the enabling statute, and asks the Court to remand his case to defendant for further consideration. Because the Court finds that the regulation in question is not inconsistent with either the regulatory scheme or the underlying statute, and because defendant's denial of disability benefits is supported by substantial evidence, the Court does not reach the class action question in affirming defendant's decision and granting his Motion for Summary Judgment.

I. The Facts

This Court has jurisdiction to review a final administrative decision by the Secretary of Health and Human Services pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g) (1976). The decision must be upheld if supported by substantial evidence. "Substantial evidence" is such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

Plaintiff Wendell Powell was born November 23, 1962. Through his mother he applied for and was granted SSI disability benefits for mental retardation effective December 30, 1976. The examining physician at the time rated his full-scale IQ as 53, noting that he exhibited no other obvious physical or emotional problems and would probably be capable of performing "simple routine repetitive work" on completion of whatever education he sought. Tr. 114-16.

Subsequent reexamination in April, 1979, indicated that plaintiff had improved his full-scale IQ score to 72. The examining physician classified him in the range of mild to borderline retardation. Plaintiff was found capable of following one and two step instructions and performing "routine and repetitive tasks with reliability." Affect, demeanor and self-care ability were found to be good. Again, no emotional or psychiatric disabilities aside from retardation were noted. Tr. 119-20.

Based on these findings, defendant informed plaintiff that his disability benefits were to be terminated after June, 1979, since his mental impairment was no longer considered severe. (See infra, Part V). Plaintiff sought review of this decision, and a hearing was held before an administrative law judge (ALJ) on October 31, 1979. The ALJ heard the testimony of plaintiff, his mother and the Director of the Clay County Association for the Retarded. On November 29, 1979, after reviewing the medical evidence, he upheld the termination decision. The Appeals Council declined to disturb the ALJ's determination, and thereafter it became defendant's final decision.

The ALJ's ruling was based on plaintiff's failure to exhibit an impairment as severe as, or medically the equivalent of, any of the impairments listed in Appendix 1, Subpart I, following 20 C.F.R. § 416.985 (1978).¹ Prior to April, 1979, plaintiff had met the standard listed in § 112.05(B), Part B, Appendix 1, which specifies mental retardation of IQ 59 or less as presumptively disabling. He now challenges the Secretary's failure to use a third basis for finding disability — the "all pertinent facts" test, or consideration of all circumstances in the case — apart from the listed impairments or their medical equivalent.²

II. The Statute and Regulations

The Secretary's rule-making power extends to the promulgation of rules and regulations "not inconsistent with the provisions of this title." 42 U.S.C. §§ 405(a) and 1383(d)(1). The statutory standard of disability is contained in 42 U.S.C. § 1382c(a)(3)(A) and (B):

(3)(A) An individual shall be considered to be disabled for purposes of this subchapter 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 (or, in the case of a child under the age of 18, if he suffers from any medically determinable physical or mental impairment of comparable severity).

(B) For purposes of subparagraph (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. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. (emphasis added).

Pursuant to this mandate, defendant promulgated regulations by which disability determinations might be made on a more-or-less routine basis. The basic definition of disability closely follows the statute's:

§ 416.901 Disability and blindness; general.

(b) Disability defined. An individual is disabled for purposes of this part if:

(1) 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 12 months (or, in the case of a child under the age of 18, if he suffers from any medically determinable physical or mental impairment of comparable severity);

....

(c) Physical or mental impairment defined. A physical or mental impairment is an impairment which results from anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. Statements of the applicant, including his own description of his impairment (symptoms) are, alone, insufficient to establish the presence of a physical or mental impairment.

20 C.F.R. § 416.901(b)(1) and (c).

For adults age 18 or older, § 416.902 provides that "all the pertinent facts" of the case shall be used to determine whether an impairment constitutes a disability. Medical considerations alone can justify a finding of disability, or they may be supplemented by such vocational factors as an individual's "residual functional capacity" and age, education and work experience. § 416.902(a), (b). If an individual's impairment(s) meets or equals one of those listed in Part A of Appendix 1 to Subpart I, however, no further factors need be considered for a disability finding to be made. § 416.904(a)(2). In any event, any medically determinable impairments may justify a finding of disability if the impairments are severe and prevent an individual from engaging in substantial gainful activity. § 416.904(b).

Children's disabilities are judged under a different and, according to plaintiff, more restrictive scheme. Section 416.915, the regulation in question in this lawsuit, provides:

§ 416.915 Evaluation of disability of a child under age 18.

A child under age 18 will be found to be disabled as defined in § 416.901(b)(1) if he has a medically determinable physical or mental impairment of comparable severity to that which qualifies an individual age 18 or over. Disability shall be deemed to be of comparable severity and to exist under § 416.901(b)(1) if the child is not engaging in substantial gainful activity, and if:

(a) His impairment or impairments meet the durational requirements in § 416.901(b)(1), and are listed in Appendix 1 to this Subpart I; or

(b) His impairment or impairments are not listed in Appendix 1 to this Subpart I but singly or in combination meet the durational requirements in § 416.901(b)(1) and are determined by the Social Security Administration, with appropriate consideration of the particular effect of disease processes in childhood, to be medically the equivalent of a listed impairment (see § 416.905).³

Section 416.916 provides that an individual's impairment(s) shall be considered medically the equivalent of a listed impairment "only if the medical findings with respect thereto are at least equivalent in severity and duration," as shown by medical evidence "demonstrated by medically acceptable clinical and laboratory diagnostic techniques, including a medical judgment furnished by one or more physicians designated by the Social Security Administration, relative to the question of medical equivalence." § 416.916(b). The "all...