20 CFR 404.1501-404.1598

SSR 82-47c

Taylor v. Schweiker, USDC, Middle District, N.C., Greensboro Division, Civ. No. C-80-705-G (9/24/81)

When the claimant applied for disability insurance benefits, the Social Security Administration (SSA) found that the claimant could not do his former job, but that he could do sedentary work. SSA determined, under its Medical-Vocational Guidelines in Appendix 2, Subpart P of Regulations No. 4, that the claimant was not disabled and denied his application. The claimant appealed, objecting to the use of the Medical-Vocational Guidelines to dictate a finding of not disabled in his case. He argued that a vocational expert is required in all but exceptional cases and that the Medical-Vocational Guidelines unconstitutionally deprive him of his due process rights. The court held that the Medical-Vocational Guidelines, in using the same kind of information which is available to a vocational expert, yield a uniform set of the same findings as would such an expert. The court further held that the Medical-Vocational Guidelines plainly appear to be a reasonable proxy for the expense and inconsistency associated with live testimony from a vocational expert in each hearing. The court further held that the Medical-Vocational Guidelines are rationally related to the achievement of two goals, economy and consistency, which are undeniably legitimate governmental objectives.

GORDON, District Judge:

The plaintiff seeks judicial review, pursuant to §205(g) of the Social Security Act, as amended, 42 U.S.C. §405(g), of the final decision of the Secretary of Health and Human Services, denying him the establishment of a period of disability and for disability insurance benefits.

The plaintiff first field his application on December 5, 1979, alleging that he became unable to work at 27 years of age because of joints leg, back and side pain and swelling. The application was denied initially and upon reconsideration. Plaintiff thereafter requested a hearing. The requested hearing was held on June 25, 1980 before Administrative Law Judge Rufus K. Hayworth. On July 18, 1980, the Administrative Law Judge rendered his decision, find that plaintiff was not entitled to a period of disability or to disability insurance benefits. The Appeals Council thereafter denied plaintiff's request for review. This action was timely instituted on December 31, 1980.

The entire administrative record has now been certified to the Court, and the parties have cross-moved for summary judgment. These motions will be deemed to have been made pursuant to Rule 7(b)(1), Federal Rules of Civil Procedure, seeking a judgment of the Court affirming or reversing the decision of the Secretary. (See Torphy v. Weinberger, 384 F. Supp. 1117, 1119 (E.D. Wis. 1974.)

The Administrative Law Judge found that plaintiff was unable to perform his past relevant work and yet retained the residual functional capacity for sedentary work. He also found that plaintiff was twenty-eight years old at the time of the hearing, that he had limited education and unskilled work experience. (Record, p. 19.) Plaintiff does not dispute any of these findings of fact.

After making his findings of fact, the Administrative Law Judge applied the "Medical-Vocational Guidelines" found in 20 C.F.R., Subpart A, App. 2. Given the set of facts he had found about plaintiff, the Administrative Law Judge found that "Rule 201.18 of Table No. 1. Appendix 2, Subpart P, of Regulations No. 4 and . . . No. 16, direct a finding of not disabled."[1] (Record, p. 19.) Because the regulations take administrative notice of the existence of jobs in the national economy for persons with plaintiff's age, education, work experience and residual capacity, the Administrative Law Judge found that they showed plaintiff's continuing ability to engage in gainful work. See Stallings v. Harris, 493 F.Supp. 956, 959 (W.D.Tenn. 1980); Boyce v. Harris, 492 F.Supp. 751, 752 (D.S.C. 1980).

Plaintiff's single objection to the ruling of the Secretary is the use of the "Medical-Vocational Guidelines" to dictate a finding of not disabled in his case. He argues that: "I. A vocational expert is required in all but exceptional cases." and "II. The grid regulations deny claimant's due process rights by imposing an irrebuttable presumption."

In its first argument, plaintiff's well-written brief relies in large part on case law within and without this circuit which antedates Frady v. Harris, 646 F.2d 143 (4th Cir. 1981), the Court of Appeals' most recent decision in this area. Thus, with all due respect to Judge McMillan's decision in Williams v. Harris, 500 F. Supp. 214 (W.D.N.C. 1980) and to the reasoning in cases outside this circuit, such as Santise v. Harris, 501 F.Supp. 274 (D.N.J. 1980), the court is required to follow the apparent holding of Frady v. Harris, supra, insofar as it controls this case. In that case, the Court of Appeals specifically affirmed a decision holding Frady ineligible for benefits, based on his ability to perform sedentary work and the application of the regulatory grid to his situation. The Court held that the Secretary could properly apply "broadly based regulatory 'medical vocational guidelines' dealing with what constitutes capacity to perform and with the availability of particular types of employment." Id. at 145.

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Plaintiff's second contention, that use of the regulations is an unconstitutional deprivation of property without due process of law, was not addressed by the Court of Appeals in Frady v. Harris; therefore, it will require this Court's special attention. Plaintiff's main claim of unconstitutionality rests on the "irrebuttable presumption" line of Supreme Court cases which begins (or so it is thought) with Heiner v. Donnan, 285 U.S. 312 (1932). The first case to use the terminology of "irrebuttable presumption" was Vlandis v. Kline, 412 U.S. 441 (1973). In striking down a Connecticut rule which declared all university students nonresidents of the state whose addresses at enrollment were outside Connecticut, the Court said:

In sum, since Connecticut purports to be concerned with residency in allocating the rates for tuition and fees in its university system, it is forbidden by the Due Process Clause to deny an individual the resident rates on the basis of a permanent and irrebuttable presumption of non-residence, when that presumption is not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination. Rather, standards of due process require that the State allow such an individual the opportunity to present evidence showing that he is a bona fide resident entitled to the in-state rates.

Id. at 452.

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In more recent years, the opponents of the "irrebuttable presumption" doctrine seem to have the upper hand. A hard blow fell in Weinberger v. Salfi, 422 U.S. 749 (1975). There the Court upheld a social security regulation which defined "widow" and "child" so as to exclude persons who held the described relationships to a deceased wage earner for less than nine months. Although a three-judge district court has struck down the definition as an "irrebuttable presumption," the Court, per Justice Rehnquist, held that the definition simply states a requirement for the receipt of benefits: widows and stepchildren must have been related to the deceased wage earner for more than nine months in order to qualify for benefits as his survivors. Id at 772. Therefore, the Court held, the standard which the classification must pass is that of rationality.

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Justice Rehnquist distinguished two predecessor irrebuttable presumption cases, Stanley v. Illinois, 405 U.S. 645 (1972), and Cleveland Board of Education v. LeFleur, supra, as concerned with specially protected individual freedoms. He did not discuss Bell v. Burson, supra, or United States Department of Agriculture v. Murry, supra. The former dealt with a Georgia provision which automatically suspended the drivers' license of an uninsured driver involved in an accident, regardless of fault. The latter dealt with a food stamp regulation barring from participation any member of a family 18 years old or older who was simultaneously claimed as a dependent by a non-eligible taxpayer. Justice Rehnquist attempted to distinguish Vlandis v. Kline, supra, but few commentators have regarded that effort as successful:

In Vlandis, students were irrebuttably presumed to retain the same residency throughout their careers in Connecticut institutions of higher learning; in Salfi, certain marriages of brief duration were irrebuttable presumed to be sham arrangements. It may be, therefore, that the Court now wishes to restrict application of a strict irrebuttable presumptions approach largely to those classifications which affect recognized constitutional rights, but does not, given the case's recent vintage, wish to overrule Vlandis outright.

Yarbrough, The Burger Court and Unspecified Rights: On Protecting Fundamental and Not-so-fundamental "Rights" or "Interests" through a Flexible Conception of Equal Protection, 1977 Duke L.J. 143, 158.

The strong language of Weinberger v. Salfi, supra, the weakness of Justice Rehnquist's effort to distinguish and preserve Vlandis v. Kline, supra, and the speculations of commentators like Professor Yarbrough cause courts to wonder whether the "irrebuttable presumption" doctrine has any vitality at all in current constitutional jurisprudence. The Second Circuit held that after the former Weinberger v. Salfi, the "irrebuttable presumption" rule has merged into a simple rule of rationality which, under the Equal Protection Clause, governs all legislative classifications. Johnson v. Lefkowitz, 566 F.2d 866, 869 (2nd Cir. 1977); Clayborne v. Califano, 603 F.2d 372, 380 (2nd Cir. 1979) ("Whatever viability the above-mentioned cases retain in their respective contexts, the Supreme Court has all but ruled them inapplicable to social welfare legislation.") The Seventh Circuit has ruled that after Weinberger v. Salfi, the Supreme Court has tacitly abandoned the doctrine altogether. See Trafelet v. Thompson, 594 F.2d 623, 629-30 (7th Cir.), cert. denied. 444 U.S. 906 (1979). Therefore, plaintiff's argument confronts an initial difficulty in asserting the validity of the "irrebuttable presumptions" doctrine, especially in the light of recent cases which seem to discount that doctrine. See, e.g., Usery v. Turner Elkhorn Mining Co., 429 U.S. 1, 22-23 (1976).

Nonetheless, if this Court assumes, as it will, that the "irrebuttable presumptions" doctrine is yet potent, the question remains: What standard of review does this strand of Due Process employ? The Court of Appeals for the Third Circuit has analyzed the irrebuttable presumptions cases in two classes, and that analysis seems applicable here. In Malmed v. Thornburgh, 621 F.2d 565 (3rd Cir. 1980), the Court reasoned that cases like Stanley v. Illinois, supra, applied an exacting standard of review to presumptions which impinged on specially protected rights. Id. at 575. Those cases have no bearing here, where plaintiff is not claiming any infringement on his constitutional liberties. But the other category of cases, typified by Vlandis v. Kline, supra, are cases which "invalidated a classification adopted as an administrative device to serve as evidence of another classification." Id. at 574. Those cases, the Court said:

should not be expanded beyond their context. They involved administrative short-cuts by which individuals were determined to be ineligible for benefits. The ultimate criteria for eligibility were unchallenged in all three cases; the challenges were to the use of proxies to prove the ultimate criterion. In each case, the Court struck down the procedure because the proxy was not reasonably related to the ultimate criterion.

Id. at 575. Therefore, the proper question for this Court as drawn from a somewhat cloudy set of Supreme Court cases, is whether the "Medical-Vocational Guidelines" employed by the Secretary offer a reasonable proxy for the testimony of a vocational expert.

As noted above, the "Medical-Vocational Guidelines" are intended to serve as administrative notice of the availability of jobs within the national economy for persons of certain age, education, work experience, and residual work capacity. The introduction to the guidelines explains how the tables are derived:

[I]n promulgating the rules, administrative notice has been taken of the numbers of unskilled jobs that exist throughout the national economy at the various functional levels (sedentary, light, medium, heavy and very heavy) as supported by the "Dictionary of Occupational Titles" and the "Occupational Outlook Handbook," published by the Department of Labor; the "County Business Patterns" and "Census Surveys" published by the Bureau of the Census; and occupational surveys of light and sedentary jobs prepared for the Social Security Administration by various State employment agencies.

20 C.F.R., Subpart P, App. 2, § 200.00(b). In other words, the grid, using the same kind of information which is available to a vocational expert, yields a uniform set of the same findings as would such an expert, although in a tabular form. This scheme plainly appears to be a reasonable proxy for the expense and inconsistency associated with live testimony from such an expert in each hearing.

But plaintiff does not contest the manner in which the grid was designed or even its accuracy in reporting the availability of jobs for certain classes of people. He does argue that it is unreasonable to presume that a claimant is not disabled "without considering the claimant's individual characteristics." He poses the apparently hypothetical possibility of a claimant who is physically able to do sedentary work, but whose emotional or other non-exertional problems render him unemployable. The problem with this argument is that the regulations attached to the grid specifically provide that no individual with non-exertional impairments shall be presumed not disabled on the basis of the grid, but that that person's individual situation must be weighed -- most usually through the aid of vocational testimony. See Id., § 200.00(e); 20 C.F.R. § 404.1513; Phillips v. Harris, 488 F.Supp. 1161, 1166 (W.D.Va. 1980). Therefore, this argument on plaintiff's behalf cannot stand.

Plaintiff also argues that the regulations are unreasonable because in one case "a single year's age difference may mean the difference between the claimant being 'disabled' or 'not disabled.'" He urges the Court to note the difference in result between Rules 201.17 and 201.23 of 20 C.F.R., Subpart P, App. 2. The former rule requires that a 45-year-old person who is illiterate with unskilled work experience and able to do sedentary work be found disabled. Under the latter rule, the same individual, at age 44, must be found not disabled. This difference in result, plaintiff asserts, is"arbitrary."

Two problems doom plaintiff's argument. First, this particular plaintiff has no standing to challenge this particular asserted irrationality. To have standing to challenge a regulation such as this, a plaintiff must allege that the specific irrational rule has actually injured him " and that he personal would benefit in a tangible way from the court's intervention" Warth v. Seldin, 422 U.S. 490, 508 (1975). Since plaintiff is not a 44-year-old man who is presumed not disabled by the allegedly irrational rule, he cannot raise that particular irregularity as a claim in his suit.

But more directly responsive to plaintiff's argument is the reality that whether a line is drawn in the mind of a vocational expert or through the regulatory grid, lines must be drawn to separate eligible claimants from the ineligible. The fact that plaintiff's hypothetical illiterate, inexperienced middle-aged sedentary work crosses the line with his 45th birthday is no more irrational than the fact that a child of 17 years and 11 months may not vote in a national election. If the lines which are drawn to define eligibility are reasonable, then the hypothetical" closet possible case" avails naught in an attempt to declare the rules unreasonable. To put it another way, "almost" only courts in horseshoes, not in constitutional jurisprudence. See Weinberger v. Salfi, supra at 772-777; Malmed v. Thornburg, supra at 577, n.18, 578 (upholding mandatory retirement for state judges at age 70). The rationale behind this regulation is clear: younger people are more hirable than older people; therefore, based on the sources noted in § 200.00(b) of 20 C.F.R., Subpart P, App.2, the regulations draw an eligibility line at age 45 for the described individual. That is reasonable.

Plaintiff's final attack on the regulations is the claim that the grid is not rationally related to achievement of legitimate governmental goals. The government has two obvious goals in use of the grid: economy and consistency. The two goals are undeniably legitimate governmental objectives. The best argument that plaintiff can muster against them is that the use of this grid does not achieve the same degree of economy achieved by the regulation upheld in Weinberger v Salfi, supra, and that consistency might be equal if the use of the grid were restricted to non-hearing determinations. Neither argument denies that use of the grid promotes these legitimate objectives; therefore, this last argument against the regulations must also fall.

In summary, the Court concludes that defendant has acted within its statutory authority and has promulgated reasonable and rational regulations designed to meet Congress' desire for a more orderly, comprehensible, and uniform disability program. Plaintiff's challenge to the regulations must therefore be rejected.

Stallings v. Harris, supra at 961.

The factual conclusions of the Administrative Law Judge leading to the application of the administrative standards are not contested, and the use of the "Medical-Vocational Guidelines" was legally sound.

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It is therefore ordered and adjudged that the decision of the Secretary be and is hereby affirmed and the action dismissed with costs addressed to the plaintiff.

[1] The regulation cited by the Administrative Law Judge does not fit plaintiff's case. It requires a finding of not disabled for individuals otherwise like plaintiff, but aged 45-49. The regulation properly applied to plaintiff is Rule 201.24, which also requires a finding of not disabled. Since the Court believes this mistake to be a clerical error on the part of the Administrative Law Judge, and since correction of the error does not change the issues of this case, plaintiff will be deem to have been disqualified by Rule 201.24. See Eaton v. Capps, 348 F. Supp. 237, 240 (M.D.Ala. 1972).

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