OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER V. JANET J. YUCKERT No. 85-1409 In the Supreme Court of the United States October Term, 1985 Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit The Solicitor General, on behalf of the Secretary of Health and Human Services, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. TABLE OF CONTENTS Opinions below Jurisdiction Statutory and regulatory provisions involved Question presented Statement A. The statutory and regulatory framework B. The proceedings in this case Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix H Appendix I OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-12a) is reported at 774 F.2d 1365. The order of the district court (App., infra, 14a) and the recommendation of the magistrate (App., infra, 15a-19a) are unreported. JURISDICTION The judgment of the court of appeals was entered on October 24, 1985. By order dated January 14, 1986, Justice Rehnquist extended the time within which to file a petition for a writ of certiorari to and including February 21, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED Sections 223(d)(1)(A) and (2)(A), 1614(a)(3)(A) and (B) of the Social Security Act, as codified at 42 U.S.C. 423(d)(1)(A) and (2)(A), 1382c(a)(3)(A) and (B); Sections 223(d)(2)(C), 1614(a)(3)(G) of the Social Security Act, as added by Section 4 of the Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 98-460, 98 Stat. 1800-1801 (to be codified at 42 U.S.C. 423(d)(2)(C), 1382c(a)(3)(G)); and 20 C.F.R. 404.1520, 404.1521, 416.920, 416.921 are reproduced at App., infra, 30a-36a. QUESTION PRESENTED Whether the court of appeals correctly invalidated a regulation promulgated by the Secretary of Health and Human Services, 20 C.F.R. 404.1520(c), which provides that a person seeking Social Security disability benefits will be found not to be disabled if he does not have a medically "severe" impairment that significantly limits his ability to do basic work activities. STATEMENT The court of appeals in this case invalidated a regulation that is an integral part of the sequential evaluation process established by the Secretary of Health and Human Services for determining whether a person seeking Social Security disability benefits is disabled. The regulation provides that if the claimant does not have a medically "severe" impairment -- defined to mean an impairment that significantly limits a person's mental or physical ability to do the basic work activities that are necessary for most jobs -- the claimant will be found not to be disabled. A. THE STATUTORY AND REGULATORY FRAMEWORK Title II of the Social Security Act provides, inter alia, for the payment of insurance benefits to a person who is "under a disability." 42 U.S.C. 423(a)(1)(D). Disability benefits also are provided under the Supplemental Security Income (SSI) program established by Title XVI of the Act. 42 U.S.C. 1382(a). The term "disability" is defined to mean 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(.) 42 U.S.C. 423(d)(1)(A); see also 42 U.S.C. 1382c(a)(3)(A). The Act further provides in relevant part that 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. 42 U.S.C. 423(d)(2)(A), 1382c(a)(3)(B). To implement these statutory definitions, the Secretary has by regulation established a five-step "sequential evaluation" process to be followed in determining whether a claimant is disabled. 20 C.F.R. 404.1520, 416.920. See Heckler v. Campbell, 461 U.S. 458, 460 (1983). At step 1, the decision-maker (either the state agency or the administrative law judge (ALJ)) determines whether the individual is engaged in work that constitutes substantial gainful activity. If so, he is found not to be disabled. 20 C.F.R. 404.1520(b), 416.920(b). If the claimant is not engaged in substantial gainful activity, the sequential evaluation process continues to step 2, which is at issue in this case. At step 2, the decision-maker determines whether the individual has demonstrated the existence of a medically "severe" impairment or combination of impairments. 20 C.F.R. 404.1520(c), 416.920(c). An impairment is not "severe" if it does not "significantly limit (the claimant's) physical or mental ability to do basic work activities" (20 C.F.R. 404.1521(a), 416.921(a)). The regulations in turn define the term "basic work activities" to mean "the abilities and aptitudes necessary to do most jobs" (20 C.F.R. 404.1521(b), 416.921(b)), which are identified as: (1) "(p)hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling"; (2) "(c)apacities for seeing, hearing, and speaking"; (3) "(u)nderstanding, carrying out, and remembering simple instructions"; (4) "(u)se of judgment"; (5) "(r)esponding appropriately to supervision, co-workers and usual work situations"; and (6) "(d)ealing with changes in a routine work setting" (20 C.F.R. 404.1521(b), 416.921(b)). If the claimant does not have an impairment that significantly limits his ability to do these basic work activities, he will be found not to be disabled at step 2, without specific consideration of his age, education, and work experience. 20 C.F.R. 404.1520(c), 416.920(c). If the claimant is found to have a "severe" impairment, the decision-maker then must determine at step 3 of the sequential evaluation process whether the impairment is so serious as to be equal in severity to one of the listed impairments that are deemed to be disabling on medical grounds alone, without specific consideration of the claimant's age, education, and work experience. 20 C.F.R. 404.1520(d), 416.920(d); 20 C.F.R. Pt. 404, Subpt. P. App. 1. If the individual's impairment is not one that is automatically deemed disabling at step 3, the decision-maker then must determine at step 4 whether the impairment prevents the individual from performing his own past work. If the claimant is still able to do his past work, he is found not to be disabled. 20 C.F.R. 404.1520(e), 416.920(e). But if the claimant cannot do his past work, the decision-maker must determine at step 5 whether, in light of the claimant's age, education, and work experience, he nevertheless can perform other work that exists in the national economy. At this final step, the Secretary ordinarily applies the medical-vocational guidelines that were sustained by this Court in Heckler v. Campbell, supra. /1/ B. THE PROCEEDINGS IN THIS CASE 1. Respondent applied for Social Security disability benefits and SSI benefits in Octiber 1980 (R. 82, 86). /2/ After her claim was denied by the state agency, respondent requested a hearing before an ALJ. Respondent alleged that she was disabled on the basis of labyrinthe (inner ear) dysfunction with occasional episodes of dizziness, loss of visual focus, and flat feet (App., infra, 15a, 26a). Following the hearing, the ALJ concluded that respondent's impairments were not severe and denied her claim (App., infra, 24a-27a). The record showed that respondent was 45 years old and had a high school education, two years of business college, and real estate training (id. at 26a). From 1963 to 1977, she had been employed as a travel agent (id. at 15a, 26a; R. 52). From September 1978 through September 1979, with interruptions due to illness, respondent worked in real estate sales (App., infra, 15a); she testified that "the market kind of just fell because of the high interest rates and so I left that job in September of 1979" (R. 52). The ALJ found that "(m)ultiple tests given (to respondent) failed to divulge objective clinical findings of abnormalities that support (respondent's) severity of the stated impairments" (App., infra, 27a), observing that respondent was successfully pursuing a "relatively difficult" two-year community college training plan for computer programming (id. at 27a-28a). In the ALJ's view, although the evidence revealed that respondent was not "free from episodes of dizziness, or vision problems," her scholastic success, "coupled with generally negative clinical findings" and her ability to perform various activities, such as driving her car 80 to 90 miles a week, demonstrated that her problems did not significantly limit her ability to perform basic work activities (id. at 28a). /3/ Accordingly, the ALJ concluded that respondent had not demonstrated the existence of a severe impairment within the meaning of 20 C.F.R. 404.1520(c), 416.920(c), and therefore was not disabled (App., infra, at 28a-29a). The Appeals Council denied respondent's request for review (App., infra, 21a-22a), explaining that additional psychological testing data submitted to the Appeals Council by respondent's representative did not undermine the ALJ's decision (id. at 22a): The over-all results of the testing indicated an average range of intellectual abilities, with no profound irregularities and the majority of skills still fully intact. Only the finger dexterity test administered showed a degree of difficulty. The Appeals Council notes in that regard that the limitations potentially imposed by the difficulty you might experience in small detailed parts dexterity does not indicate an inability to perform any substantial gainful activity. The weight of the entire evidence of record in your case, including the new evidence, supports the administrative law judge's finding that you do not have any significant impairment of work-related abilities. 2. Respondent then sought judicial review in the United States District Court for the Western District of Washington pursuant to 42 U.S.C. 405(g). The case was referred to a magistrate, who recommended that the district court affirm the Secretary's decision that respondent had not established that she had a severe impairment (App., infra, 15a-19a). The magistrate noted the testimony by respondent's vocational expert and treating physician that her impairments were disabling, but found that respondent's success in the community college program "is substantial evidence of her ability to perform basic work activities" (id. at 17a-19a). The magistrate also observed that this course had been sponsored by the state Department of Vocational Rehabilitation and that respondent's counsellor at that agency had expressed the view that respondent would have little problem in obtaining employment when she completed that training (id. at 18a). The district court adopted the magistrate's report and affirmed the Secretary's decision denying respondent's claim (id. at 14a, 20a). 3. The court of appeals reversed (App., infra, 1a-12a). The court of appeals did not reach the question whether there was substantial evidence to support the Secretary's decision that respondent had not demonstrated the existence of a severe impairment that significantly limited her ability to do basic work activities. Instead, the court held that the regulation that permits the Secretary to deny benefits at step 2 of the sequential evaluation process because of the absence of a severe impairment is invalid. /4/ The court therefore remanded the case to the Secretary to be reconsidered without reliance on the severity regulation. a. The court of appeals recognized that under 42 U.S.C. 405(a), "Congress has delegated to the Secretary broad power 'to prescribe standards for applying certain sections of the (Social Security) Act'" (App., infra, 8a, quoting Schweiker v. Gray Panthers, 453 U.S. 34, 40 (1981)). However, the court held that the severity regulation is inconsistent with 42 U.S.C. 423(d)(2)(A), which provides that a claimant may be found to be disabled only if his impairments "are of such severity that he is not only unable to do his previous work but cannot, consideri,ng his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." The court interpreted this provision to require the Secretary "to consider factors such as (the claimant's) age, education, work experience, and ability to do past work" in every individual disability determination, irrespective of whether the claimant has demonstrated that his impairment satisfies a threshold level of severity. App., infra, 5a, 9a. The court also held that the regulation is contrary to judicial decisions that it construed to mandate a two-step process, "with the claimant first showing an inability to perform (his) past relevant work, and the Secretary then showing that the claimant nevertheless retains the ability to do other work" (id. at 10a). Finally, the court of appeals rejected the Secretary's contention that the Social Security Disability Benefits Reform Act of 1984 (1984 Act), supports the sequential evaluation process (App., infra, 8a-9a). The court conceded that Congress considered the severity regulation when it enacted the 1984 Act and failed to eliminate the requirement that the claimant demonstrate a severe impairment. However, relying on the fact that Congress had urged the Secretary to revise the severity criteria in order "'to reflect the real impact of impairments on the ability to work'" (id. at 10a, quoting H.R. Rep. 98-618, 98th Cong., 2d Sess. 8 (1984)), the court believed that the legislative history did not suggest a congressional intent to permit a finding of nondisability based on medical factors alone (App., infra, 10a). b. The court of appeals acknowledged in a footnote (App., infra, 9a n.6) that the Secretary had adopted a new Social Security Ruling, SSR 85-28 (App., infra, 37a-44a), which reflected both the Secretary's ongoing reevaluation of step 2 and the Secretary's response to concerns expressed by several courts of appeals. In SSR 85-28, the Secretary explained that the severity regulation, which was promulgated in 1978 /5/ and revised somewhat in 1980, /6/ had not been intended to alter the threshold level of impairment severity that had been in effect prior to 1978. Under the pre-1978 standard, a claimant could be found not to be disabled on medical grounds alone (i.e., without consideration of his age, education, and work experience) if his impairment was "a slight neurosis, slight impairment of signt or hearing, or other slight abnormality or a combination of slight abnormalities." 20 C.F.R. 404.1502(a) (1977). Thus, the Secretary emphasized in SSR 85-28 that benefits are to be denied at step 2 only when an individual's impairments "would have no more than a minimal effect on (his) ability to work even if the individual's age, education, or work experience were specifically considered" (App., infra, 41a). The court of appeals recognized that SSR 85-28 interpreted the severity regulation in the same manner as that approved by five other circuit courts. Id. at 8a-9a n.6. /7/ However, the court expressed no view on the validity of the new ruling because it had not then been formally published and because the court in any event held that "the regulation it interprets is inconsistent with the Social Security Act" (ibid.). REASONS FOR GRANTING THE PETITION The court of appeals has invalidated a regulation that is an integral part of the five-step sequential evaluation process established by the Secretary of Health and Human Services to facilitate the fair, efficient, and uniform adjudication of the more than two million claims for disability benefits that are filed each year under the Social Security Act. The severity regulation serves an important screening function that makes it unnecessary to engage in a particularized vocational evaluation where a medical assessment establishes that the claimant's impairment is sufficiently insubstantial that it could not reasonably be expected to preclude all substantial gainful activity irrespective of the claimant's age, education, and work experience. The principle reflected in this regulation -- that a person may be denied disability benefits on the basis of medical factors alone -- has been a feature of the disability program since its inception in 1954, and it has been endorsed by Congress on several occasions since that time. The court of appeals completely disregarded the compelling legal support and practical justifications for the regulation it invalidated. Although several other courts of appeals also have invalidated the severity regulation, it has been sustained by still other courts of appeals as an appropriate screening mechanism for claimants who have relatively minimal impairments. This circuit conflict warrants resolution by this Court, especially in light of the widespread class action litigation on this issue in the lower courts. It is essential that the Secretary and the state agencies know whether the severity regulation may be applied to the scores of thousands of disability claims that are filed each month. 1. As this Court observed with respect to another provision of the sequential evaluation regulations (the medical-vocational guidelines), "Congress has 'conferred on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the (Social Security) Act'" (Heckler v. Campbell, 461 U.S. at 466, quoting Schweiker v. Gray Panthers, 453 U.S. at 43). Congress has conferred that authority in 42 U.S.C. 405(a), which authorizes the Secretary to adopt reasonable regulations to "provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same" in disability cases. "Where, as here, the statute expressly entrusts the Secretary with the responsibility for implementing a provision by regulation," a court's review "is limited to determining whether the regulations promulgated exceeded the Secretary's statutory authority and whether they are arbitrary and capricious." Heckler v. Campbell, 461 U.S. at 466. The severity regulation plainly suffers from neither defect. To the contrary, the support for the regulation in the legislative evoluation of the relevant statutory provisions is overwhelming. a. The basic definition of the term "disability," enacted by Congress in Section 106(d) of the Social Security Amendments of 1954, ch. 1206, 68 Stat. 1080, is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment * * * ." /8/ The Senate and House Reports explain this definition in identical language: There are two aspects of disability evaluation: (1) There must be a medically determinable impairment of serious proportions which is expected to be of long-continued and indefinite duration or to result in death, and (2) there must be a present inability to engage in substantial gainful work by reason of such impairment * * * . The physical or mental impairment must be of a nature and degree of severity sufficient to justify its consideration as the cause of failure to obtain any substantial gainful work. H.R. Rep. 1698, 83d Cong., 2d Sess. 23 (1954); S. Rep. 1987, 83d Cong., 2d Sess. 21 (1954) (emphasis added). The first of the two "aspects" of the disability evaluation articulated by the congressional reports strongly supports the Secretary's adoption of an independent threshold requirement that the impairment be of "serious proportions" from a medical perspective alone. Only if that condition is met is it necessary for the decision-maker to consider the second aspect: whether the claimant is unable to work by reason of "such impairment." The second sentence quoted from the committee reports likewise makes clear Congress's intent that the impairment must rise to a certain threshold level of severity before it may even be considered as the cause of the claimant's alleged inability to work. This congressional intent was implemented in the regulations issued by the Secretary in 1960 to give content to the statutory terms. As promulgated in 1960 (25 Fed. Reg. 8100), the applicable regulation provided in pertinent part (20 C.F.R. 404.1502(a) (1961) (emphasis added)): Whether or not an impairment in a particular case constitutes a disability * * * is determined from all the facts of that case. Primary consideration is given to the severity of the individual's impairment. Consideration is also given to such other factors as the individual's age, education, training and work experience. However, medical considerations alone may justify a finding that the individual is not under a disability where the only impairment is a slight neurosis, slight impairment of sight or hearing, or similar abnormality or combination of slight abnormalities. The language of the regulation remained in effect in essentially identical form until 1978, when the sequential evaluation regulations were formally adopted. See pages 3-5, supra, and pages 20-21, infra. The interpretation of the Act reflected in the severity regulation therefore is a consistent and longstanding one, and it accordingly is entitled to particular deference by the courts. Pattern Makers v. NLRB, No. 83-1894 (June 27, 1985), slip op. 19-20. b. In 1967, Congress reexamined the operation of the disability program and added 42 U.S.C. 423(d)(2)(A). Pub. L. No. 90-248, Section 158(b), 81 Stat. 868. The court of appeals interpreted Section 423(d)(2)(A) to prohibit the denial of benefits based on medical factors alone, without consideration of the vocational factors of the claimant's age, education, and work experience. App., infra, 5a, 9a. There is no support for this proposition. To the contrary, the legislative history of the 1967 amendments demonstrates that Congress was attempting to establish more stringent requirements for determining disability, and that history in fact lends additional support to the validity of the severity regulation. The 1967 amendments were enacted against the background of the regulations promulgated by the Secretary in 1960 to implement the basic definition of the term "disability" in 42 U.S.C. 423(a)(1)(A). As we have explained, those regulations expressly provided that medical considerations alone would support a finding of no disability. 20 C.F.R. 404.1502(a) (1967). Congress in 1967 did not amend 42 U.S.C. 423(a)(1)(A) or otherwise express its disapproval of this formal and settled administrative construction of the term "disability." When Congress thoroughly reexamines a statutory program and receives that program in certain respects, this Court has understood Congress to have approved those aspects of the program that it left unaltered. See Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 381-382 (1982). That conclusion is particularly compelling here. In enacting the new 42 U.S.C. 423(d)(2)(A), Congress added an additional conditon of eligibility: Not only is the claimant required to establish a mental or physical impairment of "serious proportions" and of "a nature and degree of severity" sufficient to justify its consideration as the cause of an inability to perform any work, as Congress intended when it enacted 42 U.S.C. 423(d)(1)(A) (see page 12, supra); under Section 423(d)(2)(A), a claimant who meets that requirement also must demonstrate that his "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." 42 U.S.C. 423(d)(2)(A) (emphasis added)). Nothing in this additional requirement undermines the validity of the threshold requirement that the claimant's impairment be severe. The legislative history confirms that Congress intended no such departure from settled practice. The House and Senate Reports explain the method for determining disability that Congress contemplated when it enacted the new statutory requirement in 42 U.S.C. 423(d)(2)(A): The bill would provide that such an individual 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 * * * . S. Rep. 744, 90th Cong., 1st Sess. 48-49 (1967 (emphasis added); H.R. Rep. 544, 90th Cong., 1st Sess. 30 (1967). This description is a blueprint for the sequential evaluation process subsequently adopted by the Secretary in 1978, and the emphasized passage plainly supports the requirement that a claimant make a threshold showing that his impairment is "severe" before it is necessary for the Secretary to consider his age, education, and work experience. /9/ Consistent with this view, when the Secretary in 1968 promulgated comprehensive disability regulations to take account of the 1967 amendments, he carried forward the pre-existing authorization in 20 C.F.R. 404.1502(a) (1967) for the denial of benefits based on medical grounds alone. 33 Fed. Reg. 11749, 11750 (1968). /10/ At the very least, the Secretary's retention of this regulation was based on a permissible construction of the 1967 amendments and their legislative history. Chevron U.S.A. Inc. v. NRDC, Inc., No. 82-1005 (June 25, 1984), slip op. 4-7. c. In 1978, the Secretary promulgated the first version of regulations that formally established the sequential evaluation process for adjudicating disability claims. See 43 Fed. Reg. 55349; Heckler v. Campbell, 461 U.S. at 460. Those regulations required the decision-maker to determine at step 2 whether the claimant's impairment was "severe," and they explained that "(a) medically determinable impairment is not severe if it does not significantly limit an individual's physical or mental capacity to perform basic work-related functions." 43 Fed. Reg. 55363 (1978), adding 20 C.F.R. 404.1504(a)(1). The Secretary stressed that this definition was intended to be only a "clarification" of the prior regulation, which allowed a claim to be denied where the claimant's impairment was "slight" (43 Fed. Reg. 58353 (1978)); that "there is no intention to alter the levels of severity for a finding of * * * not disabled on the basis of medical considerations alone" (ibid.; see also id. at 9297); and that the regulation addresses impairments that "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" (id. at 9296). The same severity concept was carried forward again in 1980 when the Secretary thoroughly revised the disability regulations. See 45 Fed. Reg. 55574 (1980), adding 20 C.F.R. 404.1520, 404.1521. The Secretary explained that the more detailed provisions were expected to result in "greater program efficiency" by limiting the number of cases in which it would be necessary to follow the full vocational evaluation procedures in 20 C.F.R. 404.1545-404.1568, 416.945-416.968. See 45 Fed. Reg. 55574 (1980). d. It was against this background that Congress thoroughly studied the Social Security disability programs in the early 1980's and enacted the Social Security Disability Benefits Reform Act of 1984. Although Congress specifically considered the severity regulation and mandated one change in its application that is not at issue here, Congress otherwise expressed its approval of the severity step. In Section 4 of the 1984 Act, Congress added a new paragraph (C) to 42 U.S.C. 423(d)(2) and a new paragraph (G) to 1382c(a)(3). These new paragraphs now require consideration of the combined effect of multiple impairments. 98 Stat. 1800-1801. The statutory language Congress employed expressly refers to the severity determination at step 2 (emphasis added)): In determining whether an individual's physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under this section, the Secretary shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity. If the Secretary does find a medically severe combination of impairments, the combined impact of the impairments shall be considered throughout the disability determination process. The first sentence of this new paragraph on its face plainly contemplates a threshold determination of "medical severity," and the second sentence contemplates that the subsequent steps of the "disability determination process" (which include the steps at which the claimant's age, education, and work experience are considered) will be reached only "(i)f the Secretary does find a medically severe combination of impairments." If there could be any remaining doubt about Congress's intent in 1984 to preserve the severity step of the sequential evaluation process, it is dispelled by the legislative history of Section 4 of the 1984 Act. The Senate Report states: (T)he Committee wishes to emphasize that the new rule (requiring the consideration of multiple impairments) is to be applied in accordance with the existing sequential evaluation process and is not to be interpreted as authorizing a departure from that process. As the Committee stated in its report on the 1967 amendments, an individual is to be considered eligible "only if it is shown that he has a severe medically determinable physical or mental impairment or impairments." /11/ The amendment requires the Secretary to determine first, on a strictly medical basis and without regard to vocational factors, whether the individual's impairments, considered in combination, are medically severe. S. Rep. 98-466, 98th Cong., 2d Sess. 22 (1984 (emphasis added). See also H.R. Rep. 98-618, 98th Cong., 2d Sess. 6-8, 14 (1984). The Conference Report also recognizes that "(u)nder current policies, if a determination is made that a claimant's impairment is not severe, the consideration of the claim ends at that point" (H.R. Conf. Rep. 98-1039, 98th Cong., 2d Sess. 30 (1984)). The Conference Report then continues (ibid. (emphasis added)): The conferees also believe that in 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 SGA is not seriously affected. The current "sequential evaluation process" allows such a determination and the conferees do not intend to either eliminate or 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 the results of this evaluation. Contrary to the court of appeals' view (App., infra, 8a-9a), it is difficult to see how Congress could more clearly have expressed its intent in 1984 to permit continued use of the severity step, and not to require the decision-maker to consider the vocational factors of age, education, and work experience at that step. /12/ The fact that Congress recognized that the Secretary intended to reevaluate the criteria for determining what impairments are severe under the regulation does not authorize a court to invalidate the regulation altogether, as the court of appeals seemed to believe (App., infra, 10a). /13/ Consistent with the text and legislative history of Section 4 of the 1984 Act, the Secretary, in March 1985, promulgated revised versions of 20 C.F.R. 404.1520, 404.1521, 416.920, 416.921. The revised regulations take into account the combined effect of multiple impairments, but otherwise leave in place the step 2 requirement that the claimant demonstrate a medically severe impairment or combination of impairments that significantly limits his ability to perform basic work functions. 50 Fed. Reg. 8727-8728 (1985). The Secretary concluded in promulgating the regulations that Congress intended when it passed the 1984 Act to permit a finding of no disability to be based solely on medical considerations. See 50 Fed. Reg. 8726 (1985). That manifestly is a permissible interpretation of Congress's action. The severity regulation should have been sustained by the court of appeals on this ground alone. Chevron U.S.A. Inc. v. NRDC, Inc., slip op. 5. But when Congress's most recent affirmation of the severity regulation is considered in light of the firmly entrenched nature of the provision in the administration of the disability program and the solid basis for the regulation in the legislative history of the 1954 and 1967 amendments, the support for the regulation is overwhelming. The court of appeals therefore clearly erred in invalidating the regulation on its face. 2. Despite the compelling support for the validity of the severity regulation, the Ninth Circuit is not alone in invalidating it. /14/ The Seventh Circuit also invalidated the regulation, at least as applied to certain claimants, in an Illinois-wide class action. Johnson v. Heckler, 769 F.2d 1202 (7th Cir. 1985). Compare Bunch v. Heckler, No. 1202 (7th Cir. Dec. 5, 1985), slip op. 5-6 n.4. The Secretary's petition for rehearing en banc in Johnson was denied by an equally divided vote (776 F.2d 166 (1985)), and the Solicitor General has determined that a petition for a writ of certiorari will be filed to seek review of the Seventh Circuit's decision. The Third Circuit, in Baeder v. Heckler, 768 F.2d 547 (1985), likewise held that the regulation is invalid in its current application, although the precise scope of the holding is unclear. /15/ See also Hansen v. Heckler, No. 84-2366 (10th Cir. Feb. 5, 1986), slip op. 9-13. By contrast, the Sixth Circuit has expressly sustained the regulation, correctly construing it to provide for the denial of benefits to claimants who have "slight" or "minimal" impairments. See Salmi v. Secretary of Health & Human Services, 774 F.2d 685, 689-692 (1985); Farris v. Secretary of Health & Human Services, 773 F.2d 85, 89-90 (1985); Gist v. Secretary of Health & Human Services, 736 F.2d 352, 357-358 (1984). Other courts of appeals also have recognized the validity of the regulation when construed in this manner. See Garza v. Heckler, 771 F.2d 871-873 (5th Cir. 1985); Stone v. Heckler, 752 F.2d 1099, 1101-1103, 1106 (5th Cir. 1985); Estran v. Heckler, 745 F.2d 340, 341-342 (5th Cir. 1984); Flynn v. Heckler, 768 F.2d 1273, 1274-1275 (11th Cir. 1985); Brady v. Heckler, 724 F.2d 914, 918-920 (11th Cir. 1984). See also Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984). This circuit conflict warrants resolution by this Court. /16/ The widespread litigation on the validity of the severity regulation has caused substantial disruption in the administration of the Social Security disability program, and it threatens even greater disruption in light of orders in a number of class actions requiring the reopening of past claims that were denied in reliance on the regulation. See notes 15 & 16, supra. The question of the validity of the severity regulation is of broad practical significance in another respect as well. As we have explained (see pages 17, 19, supra), the Secretary and Congress have concluded that requirements of administrative flexibility and efficiency justify a preliminary screening of claimants at step 2 of the sequential evaluation process in order to determine whether their impairments are sufficiently minimal to render it unnecessary for the state agency or the ALJ to undertake a full vocational evaluation of the claimant, including a specific consideration of his age, education, and work experience. Such administrative measures are essential in a benefits program of this magnitude, and Congress has expressly vested the Secretary with authority to implement them. See 42 U.S.C. 405(a); Heckler v. Campbell, 461 U.S. at 461 n.2 ("The need for efficiency is self-evident."). Moreover, the procedure for assessing the severity of impairments is not entirely divorced from vocational considerations, as the court of appeals seemed to believe (App., infra, 9a), because the severity of an impairment must be gauged in terms of its impact on the claimant's ability to perform basic work-related functions. Nor is the procedure unfair to the claimant. Step 2 is designed to screen out those claimants whose impairment reasonably may be presumed not to preclude substantial gainful activity irrespective of their age, education, and work experience, and who therefore would be found not to be disabled at subsequent steps of the sequential evaluation process in any event. The court of appeals failed to appreciate these considerations. Its decision, which invalidates a regulation that is applied on a nationwide basis to scores of thousands of disability claims each month, plainly warrants review by this Court. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General KENNETH S. GELLER Seputy Solicitor General EDWIN S. KNEEDLER Assistant to the Solicitor General ROBERT S. GREENSPAN MARK B. STERN Attorneys FEBRUARY 1986 /1/ The sequence in which the severity of an impairment is considered is somewhat different under the recently promulgated regulations governing the evaluation of claimants who already are receiving disability benefits. See 50 Fed. Reg. 50135-50136, 50142-50143 (1985), adding 20 C.F.R. 404.1594(f), 416.994(b)(5). The different sequence was adopted in order to take account of the new medical improvement standard enacted in Section 2 of the Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 98-460, 98 Stat. 1794-1799. This case involves a new applicant for benefits, not a current recipient, and it therefore is governed by the regulations discussed in the text. /2/ "R." refers to the transcript of the administrative record that was certified to the district court pursuant to 42 U.S.C. 405(g). /3/ The ALJ noted that Janet Mott, a vocational expert called by respondent, had testified that respondent's medical condition would preclude her from working competitively, but the ALJ concluded that the objective clinical diagnostic findings in the record did not support the existence of an impairment of that severity and that respondent "is exaggerating the effects of her impairments" (App., infra, 27a, 28a). /4/ The court of appeals acknowledged that respondent had not challenged the regulation in district court, but it chose to consider the issue because it is "purely one of law" and "a significant question of general impact" (App., infra, 4a-5a). /5/ 43 Fed. Reg. 55363, 55371 (1978), adding 20 C.F.R. 404.1503(c), 404.1504(a)(1), 416.903(c), 416.904(a)(1). /6/ 45 Fed. Reg. 55588, 55624-55625 (1980), adding 20 C.F.R. 404.1520(c), 404.1521, 416.920(c), 416.921. /7/ Citing Farris v. Secretary of Health & Human Services, 773 F.2d 85, 89-90 (6th Cir. 1985); Estran v. Heckler, 745 F.2d 340, 341 (5th Cir. 1984); Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984); Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); Chico v. Schweiker, 710 F.2d 947, 954-955 & n.10 (2d Cir. 1983). /8/ In the 1954 amendments, Congress provided for the preservation of the right to old age and survivor's insurance during a period of extended disability; Congress did not then provide for the payment of benefits to a person because of his disability. See H.R. Rep. 1698, 83d Cong., 2d Sess. 22-24 (1954); S. Rep. 1987, 83d Cong., 2d Sess. 20-22 (1954). The definition of the term "disability" for purposes of the 1954 amendments is contained in Section 216(i) of the Act, 42 U.S.C. 416(i). That definition was carried forward verbatim in 42 U.S.C. 423(d)(1)(A), at issue here, when Congress enacted the Title II disability benefits program in 1956. See Social Security Amendments of 1956, ch. 836, Section 103, 70 Stat. 815. /9/ In enacting the further restriction in 42 U.S.C. 423(d)(2)(A), Congress responded to administrative and judicial developments that suggested that the standard of eligibility had become too relaxed, and it "reemphasize(d) the predominant importance of medical factors in the disability determination." S. Rep. 744, 90th Cong., 1st Sess. 48 (1967). This background obviously does not support the court of appeals' view (App., infra, 5a, 9a) that the enactment of Section 423(d)(2)(A) was intended to prohibit the pre-existing policy of denying benefits on the basis of medical factors alone in appropriate circumstances. /10/ When Congress enacted the SSI program in 1972 (Pub. L. No. 92-603, Section 301, 86, Stat. 1465), it incorporated into 42 U.S.C. 1382c(a)(3)(A) and (B) the definition of the term "disability" in 42 U.S.C. 423(a)(1)(A) and (2)(A) (see 86, Stat. 1471-1472), without expressing any disapproval of the longstanding interpretation of those provisions contained in the Secretary's regulations. See S. Rep. 92-1230, 92d Cong., 2d Sess. 384 (1972). When Congress incorproates statutory provisions from one program into another in this manner, it is presumed to be aware of the interpretation of those provisions and to intend that interpretation to be applied under the second program. Lorillard v. Pons, 434 U.S. 575, 580-581 (1978). See also Lindahl v. OPM, No. 83-5954 (Mar. 20, 1985), slip op. 12 & n.15; Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. at 381-382. Congress's action in 1972 thus lends further support to the validity of the severity regulation. /11/ See S. Rep. 744, supra, at 48, quoted at page 15, supra. /12/ See also 130 Cong. Rec. S11458 (daily ed. Sept. 19, 1984) (remarks of Sen. Long): (The Conference Committee's) language clearly indicates that Congress envisions a sequential approach to evaluating disability. The individual must first demonstrate the existence of an impairment or combination of impairments which are sufficiently severe from a medical standpoint as to meet the Secretary's criteria as to what could potentially be a disabling condition. If, and only if, the individual meets this test, there would be further evaluation as to whether that condition or combination of conditions does in fact preclude him from engaging in substantial work activity in the light of his age, education and work experience. /13/ The Secretary has taken several steps in furtherance of the reevaluation to which the Conference Committee referred. First, in April 1985, the Secretary rescinded SSR 82-55, which had provided a list of illustrative examples of impairments generally considered to be nonsevere. See SSR 85-III-22, at 47 (Apr. 1985). The court of appeals cited this ruling (App., infra, 10a-11a n.8), but without noting that it had been rescinded. Second, in November 1985, the Secretary issued SSR 85-28, discussed at pages 9-10, supra. SSR 85-28 emphasizes that a finding of "not severe" is made at step 2 when "medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work even if the individual's age, education, or work experience were specifically considered" (App., infra, 41a). In addition, the Secretary made clear to adjudicators resolving disability claims at the administrative level that "(g)reat care" should be used in applying the nonsevere concept (id. at 44a) and that denials at step 2 are appropriate only when the medical evidence "clearly establishe(s)" that the impact of medical impairments is minimal or slight (id. at 42a). By these instructions, the Secretary sought to address concerns expressed by several courts of appeals that the severity regulation had been applied in a manner that departed from the "slight impairment" standard (id. at 37a). See, e.g., Stone v. Heckler, 752 F.2d 1099, 1102, 1106 (5th Cir. 1985); Baeder v. Heckler, 768 F.2d 547, 553 (3d Cir. 1985). /14/ A district court, in a Ninth Circuit-wide class action, previoulsy had held the regulation invalid and enjoined its enforcement. Smith v. Heckler, 595 F. Supp. 1173 (E.D. Cal. 1984), appeal pending, No. 85-2178 (9th Cir.). The appeal in Smith is currently under submission to a different panel of the Ninth Circuit, which previously had expressed its intent to defer its decision pending the panel's decision in this case. /15/ District courts in two class actions in the Third Circuit have read Baeder broadly to bar the use of any severity step, even when it is limited to the denial of claims of individuals who have only minimal impairments. Wilson v. Heckler, No. 83-3771 (D.N.J. Oct. 9, Nov. 14, 1985), appeal pending, No. 85-5814 (3d Cir.); Bailey v. Heckler, No. 83-1797 (M.D. Pa. Dec. 3, 1985), appeal pending, No. 86-5038 (3d Cir.). /16/ The First Circuit recently heard oral argument is a case brought by an individual claimant that presents the question of the validity of the severity regulation. Munoz v. Secretary of HHS, No. 85-1728 (argued Feb. 6, 1986). The question of the validity of the regulation also is pending before the First, Second and Eight Circuits on appeals from district court decisions invalidating the regulation in state-wide class actions. See McDonald v. Heckler, No. 84-2190-G (D. Mass. Dec. 19, 1985), appeal pending (1st Cir.); Dixon v. Heckler, 589 F. Supp. 1494 (S.D.N.Y. 1984), appeal pending, No. 84-6288 (2d Cir.); Campbell v. Heckler, No. C-84-2085 (N.D. Iowa Oct. 21, Nov. 27, 1985), appeal pending, No. 86-1090N1 (8th Cir.). APPENDIX