Stone v. Heckler, 84-1100

• Decision Date: 15 February 1985
• Docket Number: No. 84-1100,84-1100
• Citation: 752 F.2d 1099
• Parties: , Unempl.Ins.Rep. CCH 15,880 William W. STONE, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health & Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1099

752 F.2d 1099

8 Soc.Sec.Rep.Ser. 223, Unempl.Ins.Rep. CCH 15,880

William W. STONE, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health & Human Services Defendant-Appellee.

No. 84-1100.

United States Court of Appeals Fifth Circuit.

Feb. 15, 1985.

Nancy Taylor Lynn, Euless, Tex., for plaintiff-appellant.

James A. Rolfe, U.S. Atty., Wayne Hughes, Asst. U.S. Atty., Fort Worth, Tex., Thomas Stanton, Mary K. Biester, Asst. Reg. Attys., Karen J. Behner, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before REAVLEY, TATE and HILL, Circuit Judges.

REAVLEY, Circuit Judge:

William W. Stone appeals the district court's order dismissing his claim for Social Security disability insurance benefits. ¹ Because the administrative law judge (ALJ) applied the wrong legal standard in determining that Stone's impairment was not severe, we vacate the order of the district court and order a remand to the Secretary for reconsideration consistent with this opinion.

I.

A 62-year-old man with a fourth-grade education, Stone worked at odd jobs as a trash collector, and as a ranch hand until August 1, 1980. He claimed in his application for disability benefits in 1980 that he could no longer work because of injuries to his chest and shoulder when a horse fell on him. The ALJ rejected his claim, finding on the basis of the medical evidence alone that Stone did not have a severe impairment as defined in 20 C.F.R. Secs. 404.1520(c), 416.920(c) (1984).

II.

Disability claims under the Social Security Act (the "Act") are evaluated by a sequential process set forth in the regulations promulgated by the Secretary. See 20 C.F.R. Secs. 404.1520, 416.920 (1984). ² If a claimant is found not to be disabled at any step in this sequential evaluation, the remaining steps are not considered. 20 C.F.R. Sec. 404.1520(a) (1984).

The first step involves the determination whether the claimant is involved in substantial gainful activity. 20 C.F.R. Sec. 404.1520(b) (1984). The second step, which is here challenged, requires the factfinder to decide whether a claimant's impairment is severe, irrespective of age, education, or work experience. 20 C.F.R. Sec. 404.1520(c) (1984). ³ If the claimant is found to have a severe impairment, it is compared against a list of impairments found in Appendix 1 of the regulations. 20 C.F.R. Sec. 404.1520(d) (1984). If the claimant's impairment is listed, the individual is considered disabled. Id. If it is not listed, the next step must be considered. At that point, the factfinder must decide whether the claimant can do past relevant work. 20 C.F.R. Sec. 404.1520(e) (1984). The final question is whether the claimant can perform any other work. Only at this stage are a claimant's residual functional capacity, age, education, and past work experience considered. 20 C.F.R. Sec. 1520(f) (1984).

This court has had a number of cases in recent months in which the administrative determination was made against disability at step two on grounds of nonseverity. In Estran v. Heckler, 745 F.2d 340 (5th Cir.1984), we stated that the current definition of a non-severe impairment

must be read in light of the earlier regulations defining severe impairment adopted in 1968, for, as explained by the Secretary in the Federal Register, the new terminology was intended solely to clarify, not to change, the definition of "severe impairment." The change in language was not accompanied by "an intention to alter the levels of severity for a finding of disabled or not disabled." 32 Fed.Reg. 55357-55358. In the 1968 regulations, non-severe impairment is described as, "... a slight neurosis, slight impairment of sight or hearing, or other slight abnormality or combination of abnormalities." 20 C.F.R. Sec. 404.1502(a) (1968).

Id. at 745 F.2d 340-41. We therefore construed the current regulation as setting the following standard in determining whether a claimant's impairment is severe: "[A]n impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience." Id. at 341 (quoting Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.1984)); see Martin v. Heckler, 748 F.2d 1027, 1032 (5th Cir.1984); Davis v. Heckler, 748 F.2d 293, 296 (5th Cir.1984).

This construction of the nonseverity regulation is consistent with the view of the other circuits. ⁴ It is also in harmony with the most recent expression by Congress, which amended the Act in 1984 to add a new provision regarding the termination of disability benefits. H.R. 3755, 98th Cong., 2d Sess., 130 Cong.Rec. 9821-39 (1984). The Conference Report discussed the sequential method currently used:

Under current policies, if a determination is made that a claimant's impairment is not severe, the consideration of the claim ends at that point.... [I]n the interests of reasonable administrative flexibility and efficiency, a determination that an individual is not disabled may be based on a judgment that an individual has no impairment, or that the medical severity of his impairment or combination of impairments is slight enough to warrant a presumption, even without a full evaluation of vocational factors, that the individual's ability to perform [substantial gainful activity] is not seriously affected. The current "sequential evaluation process" allows such a determination and the conferees do not intend to either eliminate or [to] impair the use of that process. The conferees note that the Secretary has stated that it is her plan to reevaluate the current criteria for nonsevere impairments and expect that the Secretary will report to the Committees on the results of this evaluation.

Id. at 9829. The prevailing idea, then, among the courts and Congress, is that some impairments are so slight that the ability of the claimant to work can be decided without a full evaluation of vocational factors. The factfinder is entitled to follow a sequential process that disposes of those cases at that early stage. But it is impermissible to make that disposition on the basis of a standard of severity that denies disability benefits to claimants who are in fact unable to perform substantial gainful activity.

III.

A. The Secretary's Contention

The frequency of the administrative determinations this court has found it necessary to reject, and the argument for the Secretary in the instant appeal, demonstrate the deeper problem. The Department of Health and Human Services disagrees with our construction of its regulations, and the administrative findings are not being made under the standard of non-severity stated in Estran, Davis, and Martin.

If the Secretary, the administrative law judges, and appeals council regard the severity of impairment requirement as a matter for administrative definition and decision apart from the ability or inability of a particular claimant to engage in substantial gainful activity, their disability decisions will not comport with the law as we recognize it. If they allow the factfinding to rest alone upon a marshaling of medical proof under an administrative standard of medical severity that disregards the ability of any or all claimants to work, the administrative findings will not be acceptable to us; and it will be inappropriate for courts to review these administrative decisions by affirming upon substantial evidence of the claimants' inability to do past work, or engage in work available in the national economy. See Martin v. Heckler, 748 F.2d 1027, 1031, 1034 (5th Cir.1984).

The Secretary insists, however, that we have misconstrued the regulation and that it is proper to make the determination of severe or nonsevere on the basis of the medical evidence alone, regardless of whether that evidence necessarily determines the individual's ability to work. That view is applied in the procedures currently used by the Social Security Administration. Soc.Sec. Rul. 82-55 (1976) lists twenty impairments illustrative of nonsevere impairments. The ALJ automatically considers a person with an impairment in this list as not being disabled. The Secretary contends that the Act allows her to impose "additional requirements" to the inability to work when deciding disability for purposes of entitlement to social security and insurance benefits. The supplemental brief, subscribed by an Assistant Attorney General, the United States Attorney for the Western District of Texas, and the Office of the General Counsel of the Department of Health and Human Services, states:

[L]iterally read, sections 223(d)(2)(A) and 1614(a)(3)(B) do not specifically require that a finding of disability ... be made where the individual's impairment(s) prevents the performance of previous work and, when considered together with vocational factors, any other kind of substantial gainful work. Rather, these sections merely provide that an individual shall be determined to be under a disability "only if" these requirements are met, thus indicating the presence of additional requirements under the basic definition of disability in sections 223(d)(1)(A) and 1614(a)(3)(A).

B. The Statute

Section 423(d) states in part:

(1) The term "disability" means--

(A) 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;

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(2) For purposes of paragraph (1)(A)--

(A) an individual (except a widow, surviving divorced wife, widower, or surviving divorced husband for purposes of section 402(e) or (f) of this title) shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he ...