Appeal from an order of the District Court for the Eastern District of New York, Henry Bramwell, Judge, granting a motion by the Secretary of Health and Human Services for judgment dismissing plaintiff's action to set aside a decision of the Secretary denying his application for a period of disability, disability insurance benefits, and supplemental security income benefits. Reversed and remanded.
FRIENDLY, KEARSE and WINTER, Circuit Judges.
Luis Chico appeals from an order of Judge Bramwell in the District Court for the Eastern District of New York, which granted a motion by the Secretary of Health and Human Services (the Secretary) under F.R.Civ.P. 12(c) to dismiss his action to set aside the Secretary's denial of his claims for the establishment of a period of disability, 42 U.S.C. § 416(i), disability insurance benefits, 42 U.S.C. § 423(a), and supplemental security income, 42 U.S.C. § 1381a. Since the legal issue is the same with respect to all three claims and the supplemental security income regulations at 20 C.F.R. 416.920 et seq. mirror those at 20 C.F.R. 404.1520 et seq. for disability benefits, we shall generally refer to Chico's application as one for disability insurance benefits and will cite only the statutes and regulations pertaining to such benefits.
Chico, now 57 years old, was born in Puerto Rico and obtained a third grade education there. He does not understand enough English to carry on a conversation and cannot read or write it.*fn1 He worked for 20 years as a welding machine operator. His application for disability benefits was predicated on bronchial asthma, angina pectoris, and another undescribed heart ailment. A final decision of the Secretary denied Chico's application on the ground that his medical impairments were not "severe" in that they did not significantly limit his physical or mental ability to do basic work activities. In order to evaluate Chico's challenges to this determination it is necessary to set out the statutory and regulatory context in some detail.
For many years after the creation of the "disability freeze" by the Social Security Amendments of 1954, P.L. 83-761, and of the full-fledged disability insurance program by the Social Security Amendments of 1956, P.L. 84-880, the definition of disability was substantially what is now provided in 42 U.S.C. § 423(d)(1)(A):
(d)(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.
The judicial gloss on the statute imposed burdens on the Secretary, once a claimant had established an inability to return to prior work due to a medically determinable impairment, to show that work suitable for him existed in the geographical area where the claimant lived, see, e.g., Hodgson v. Celebrezze, 357 F.2d 750, 755 (3 Cir. 1966), and that the claimant would stand a reasonable chance of getting hired for such work, see, e.g., Gardner v. Smith, 368 F.2d 77, 85 (5 Cir. 1966). The courts required disability benefits to be granted even to some claimants who had been able to find work of sorts. Thus, Leftwich v. Gardner, 377 F.2d 287, 291 (4 Cir. 1967), held that a claimant who, despite a medically "disabling" affliction that prevented his continuing as a coal miner, continued to work four or five hours a day at a dishwashing job to support his famiy was entitled to benefits. See also, to much the same effect, Flemming v. Booker, 283 F.2d 321 (5 Cir. 1960); Hanes v. Celebrezze, 337 F.2d 209 (4 Cir. 1964). In 1967, after much debate, Congress disapproved the most extreme of what is regarded as judicial expansions of eligibility by adding what is now 42 U.S.C. § 423(d)(2)(A), P.L. 90-248.*fn2 This provided, in relevant part:
(2) For purposes of paragraph (1)(A) --
(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.
The Secretary issued amended regulations to implement the new definition in 1968, 33 F.R. 16, 11749, the most pertinent section of which provided:
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, and work experience. Medical considerations alone can justify a finding that the individual is not under a disability where the only impairment is a slight neurosis, slight impairment or sight or hearing, or other slight abnormality or a combination of slight abnormalities. On the other hand, medical considerations alone (including the physiological and psychological manifestations of aging) can, except where other evidence rebuts a finding of "disability," e.g. the individual is actually engaging in substantial gainful activity, justify a finding that the individual is under a disability where his impairment . . . is listed in the appendix to this subpart or the Secretary determines his impairment (or combined impairments) to be medically the equivalent of a listed impairment.
20 C.F.R. § 404.1502(a)(1968). Appendix 1 of the regulations, the "Listing of Impairments", was introduced in 1968 to describe in detailed diagnostic terms, quantified where possible, those impairments "which are of a level of severity deemed sufficient to preclude an individual from engaging in any gainful activity". § 404.156 (1968). A claimant suffering from a "listed impairment", if actually unemployed, was entitled to disability benefits without any need to consider the effect of his age, education, or work experience or his ability to do other work. Under the 1968 regulations, a claimant whose medical condition was neither so serious as the per se disabling "listed impairments" in Appendix 1 nor merely one of the "slight abnormalities" mentioned in § 404.1520(a) (1968) would have his ...