RICHARD S. SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER V. JOHN BROZ, ET AL. No. 82-816 In the Supreme Court of the United States October Term, 1982 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 Eleventh Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit PARTIES TO THE PROCEEDINGS John Broz, Richard D. Holmes, Corinne Little, Thomas O. Jones, and Fred Soesbe were appellees in the court of appeals and are respondents in this Court. TABLE OF CONTENTS Opinions below Jurisdiction Statute and regulations involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-22a) is reported at 677 F.2d 1351. The judgments of the district court (App. B, infra, 23a, 39a, 53a, 68a, 84a) are unreported. The decisions of the Social Security Administration Appeals Council (App. C, infra, 101a-110a) and the Administrative Law Judges (App. D, infra, 111a-164a) are unreported. JURISDICTION The judgment of the court of appeals (App. E, infra, 165a-166a) was entered on June 7, 1982. A petition for rehearing was denied on August 16, 1982 (App. E, infra, 167a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE AND REGULATIONS INVOLVED The pertinent provisions of Title II of the Social Security Act (42 U.S.C. 405(a) and 42 U.S.C. (& Supp. IV) 423(d)) and the applicable regulations (20 C.F.R. 404.1545; 20 C.F.R. 404.1560 to 404.1569; and 20 C.F.R. Part 404, Subpart P, App. 2) are reproduced in Appendix F (81-1983 Pet. App. 34a-75a) to the petition for a writ of certiorari in Schweiker v. Campbell, cert. granted, No. 81-1983 (June 21, 1982). /1/ QUESTION PRESENTED Whether the Secretary of Health and Human Services may rely upon medical-vocational guidelines, rather than individualized proof, to determine the effect of age on claims for disability benefits under the Social Security Act. STATEMENT 1. This case concerns the validity of the age classifications made in the Social Security Administration's medical-vocational guidelines for determining entitlement to disability benefits. 20 C.F.R. Part 404, Subpart P, App. 2. A closely related question concerning the validity of the guidelines in now before this Court in Shcweiker v. Campbell, cert. granted, No. 81-1983 (June 21, 1982). The government's petition in Campbell describes the operation of the guidelines and the disability provisions of Title II of the Social Security Act in some detail (81-1983 Pet. 2-7). We limit our discussion here to a description of the age classifications invalidated by the court of appeals. Title II of the Social Security Act provides disability benefits to individuals who, because of a physical or mental impairment, are unable to do their previous work or to "engage in any * * * kind of substantial gainful work which exists in the national economy * * * ." 42 U.S.C. 423(d)(2)(A). /2/ In determining whether a claimant is disabled, the Act requires the Secretary of Health and Human Services to consider -- in addition to a claimant's physical and mental impairments -- his age, education, and work experience. Ibid. The medical-vocational guidelines were promulgated to govern the interplay of those factors in disability determinations. The effect that age should have on such cases was decided in a rulemaking proceeding on the basis of data dealing with the relationship of age and employment, and on the expertise the Social Security Administration had acquired from its operation of the disability programs. 43 Fed. Reg. 55353-55355 (1978). The inquiry that preceded promulgation of the regulations revealed that employment problems begin to develop at age 45 and intensify at age 55 (43 Fed. Reg. 55354 (1978)). Because the adverse effect of increasing age occurs gradually, the guidelines establish classifications in five-year intervals reflecting the increasing significance of age at 45, 50, 55, and 60. See 20 C.F.R. 404.1563. They provide, for example, that all claimants over 55 who are severely impaired, and have limited education and no work experience, are disabled regardless of their residual functional capacity. 20 C.F.R. Part 404, Subpart P, App. 2, Tables 1, 2, and 3, Rules 201.01, 202.01, 203.01. They also provide that all impaired claimants over 50 who are illiterate and unskilled are disabled, unless they have at least the residual functional capacity to do medium work. See Rules 201.09, 202.09, 203.18. The regulations specifically provide, however, that the age categories will not be applied "menchanically in a borderline situation." 20 C.F.R. 404.1563(a). 2. Respondents' claims for disability benefits were denied by the Social Security Administration initially and upon reconsideration. After hearings in each case, administrative law judges ("ALJs") concluded that respondents were not disabled. They found that while respondents were unable to do their past jobs, they were able to perform at one of the levels of restricted work encompassed by the guidelines and tables in Appendix 2. The ALJs made findings as to respondents' age, education, and work experience. On the basis of these findings, the ALJs applied rules in the tables in Appendix 2 which directed conclusions that respondents were not disabled (App. D, infra, 117a-118a, 132a, 142a, 154a, 163a-164a). The Appeals Council denied review (App. C, infra, 101a-110a). Respondents then sought judicial review in the United States District Court for the Southern District of Alabama. In each case, the court adopted the recommendation of a magistrate holding the guidelines invalid and remanding the claim to the agency (App. B, infra, 23a, 39a, 53a, 68a, 84a). According to the magistrate's recommendations, the administrative notice underlying the guidelines conflicts with 42 U.S.C. (Supp. IV) 405(b), which provides that eligibility determinations shall be based on evidence "adduced at the hearing," and with the Administrative Procedure Act, 5 U.S.C. 556(e), which provides that an agency basing its decision on adjudicative notice of facts not appearing in the record must permit parties an opportunity to respond to such facts (App. B, infra, 34a-36a, 49a-51a, 64a-66a, 80a-82a, 98a-99a). 3. Respondents' cases were consolidated on appeal (App. A, infra, 2a). Although the court of appeals relied on different grounds than the district court, it too invalidated in part the guidelines in Appendix 2. /3/ The court of appeals found that the portions of the regulations dealing with residual functional capacity, education, and work experience are valid, because they leave open for adjudication in each case the precise effect that an individual's physical and mental limitations and job skills have on his ability to do a job (App. A, infra, 11a-12a). The court held, however, that the regulations are invalid insofar as they make the claimant's entitlement to disability benefits turn on his chronological age. The court noted that underlying the regulations is the "premise that, at a certain point, age significantly restricts a worker's ability to adapt and adjust to a new job and a new working environment" (id. at 12a). But it would not always be true, the court said, that that ability would be more restricted for a person 50 years old than for one 49 years old. Because the impact of age may vary from one case to another, the court concluded, it is a matter of adjudicative fact, and not within the rule-making power given to the Secretary by 42 U.S.C. 405(a) and 42 U.S.C. (Supp. IV) 423(d)(5). App. A, infra, 13a-14a. Accordingly, the court remanded respondents' claims to the agency for individual consideration of the effect that each claimant's age had on his or her ability to adapt to new jobs (id. at 15a, 22a). /4/ REASONS FOR GRANTING THE PETITION The issue in this case, though distinct in some respects, is substantially similar to that presented in Schweiker v. Campbell, supra. In each case the court of appeals held the medical-vocational guidelines invalid for failure to permit individualized proof of an issue the guidelines were designed to remove from adjudication. Each decision rests on the erroneous premise that the Secretary, in promulgating the guidelines, exceeded the rulemaking authority conferred on him by Congress with regard to the disability program. /5/ 1. The statutory definition of "disability" requires that a claimant must have a physical or mental impairment so severe 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). In Schweiker v. Campbell, supra, the Second Circuit held that the Secretary, in determining whether there is "work which exists in the national economy" that a disability claimant can perform, is not entitled simply to rely on the tables in Appendix 2. Rather, the court held, the Secretary must "identify specific alternative occupations available in the national economy that would be suitable for the claimant'" and give for each "'a job description clarifying the nature of the job, (and) demonstrating that the job does not require' exertion or skills not possessed by the claimant" (81-1983 Pet. App. 9a, quoting Decker v. Harris, 647 F.2d 291, 298 (2d Cir. 1981)). The Secretary's brief in Campbell argues that the very purpose of the regulations is to determine conclusively the types and numbers of occupations available, and their suitability for claimants whose medical and vocational characteristics are described in the tables (81-1983 Pet. Br. 9). The court of appeals in this case held that the Secretary, in giving the "consider(ation)" to "age" that the statute requires, is not entitled simply to rely on the chronological divisions drawn by the tables in Appendix 2. Rather, the court held, age is "an adjudicative factor and therefore must be given individual consideration through adjudication rather than legislative resolution through rulemaking" (App. A, infra, 14a). Though the decision below focused on a different component of the statutory term "disability" than did the Second Circuit in Campbell, /6/ the decisions share the common conclusion that the Social Security Act somehow precludes the Secretary from declaring in regulations the effect that nonmedical factors should have on the evaluation of disability. There is no indication in either the language of the statute or its legislative history that the scope of rulemaking authority is more restricted in one case than in the other. Indeed, both Campbell and this case deal with disability requirements found in the same sentence of the statute (42 U.S.C. 423(d)(2)(A)), and implemented by the same guidelines (20 C.F.R. Part 404, Subpart P, App. 2); and in each case the Secretary's authority to make rules derives from the same statutory provisions (42 U.S.C. 405(a); 42 U.S.C. (Supp. IV) 423(d)(5)). Under these circumstances, a reversal in Campbell would cast serious doubt on the correctness of the decision in this case. 2. The decision below is clearly erroneous. Congress specifically stated in the Act that the Secretary should "consider() (a claimant's) age" in making disability determinations. 42 U.S.C. 423(d)(2)(A). Yet the court of appeals stated that the Secretary could not "determine that a person 49 years of age is able to adjust to a new unskilled sedentary occupation but that a person 50 years old is not(,) * * * (because) a person's ability to adapt or adjust is clearly a fact relating to the individual claimant" (App. A, infra, 13a). It is difficult to believe that when Congress used the word "age" in the statute it had in mind anything other than chronological age. However, the court of appeals' decision in effect requires the Secretary to base disability determinations not on chronological age, but on the unique effects that the passage of time had had on the individual claimant -- i.e., on his "physiological" age. It was plainly unwarranted for the court to invalidate the regulations insofar as they preclude an investigation into that question, given the "legislative effect" to which the regulations are entitled. Schweiker v. Gray Panthers, 453 U.S. 34, 44 (1981); Batterton v. Francis, 432 U.S. 416, 425-426 (1977). As the First Circuit held in Fogg v. Schweiker, No. 81-1232 (Oct. 13, 1981), slip op. 9 n.5: /7/ Had Congress purposely intended to refer to physiological age, it * * * would have signalled this departure from the expected by clearer language. Instead Congress simply noted that age was a relevant factor and accorded the Secretary broad powers to issue regulations which would take age into account as a part of disability. 42 U.S.C. Section 423(d)(2). We cannot find that the Secretary exceeded his powers by contravening Congressional intent. It is true that in drafting the guidelines dealing with age, the Secretary recognized that there were physical and mental consequences of senescence, and that those consequences made age significant, because they were likely to affect claimants' ability to adapt to new jobs. 43 Fed. Reg. 55359 (1978). The available data did not, however, "relate varying specific chronological ages to specific physiologically-based vocational limitations for performing jobs" (ibid.). As a result, the regulations rely on data dealing with, for example, the rate by age of participation in the labor force, the unemployment rate by age, the duration of unemployment by age, and the proportion of hires to applicants by age (id. at 55353-55354). The court of appeals concluded that the lack of scientific data on the relation between the physiological consequences of aging and job performance was itself an argument for case-by-case determination of the effect those facts had on disability (App. A, infra, 14a). But what it shows even more clearly is the wisdom of Congress in directing the Secretary to consider chronological age in making disability determinations. Any attempt to account in individual cases for the innumerable consequences of senescence and their bearing on a claimant's ability to undertake new work would inevitably produce the very unfairness and inconsistencies in disability cases that the guidelines were designed to eliminate. See 81-1983 Pet. Br. 28-37; Fogg v. Schweiker, supra, slip op. 10. It may be that the lines drawn in the guidelines will not produce a perfect separation of claimants according to their physiological and mental traits produced by the aging process. But such a separation is neither possible nor necessary. The regulations specifically state that they are not to be applied "mechanically in a borderline situation." 20 C.F.R. 404.1563(a). Moreover, the regulations provide a method for taking account of impairments that usually accompany age, even when they afflict a younger person. For example, arthritis or premature senility would be considered apart from the tables in Appendix 2. If they should strike a 40-year old, he may be entitled to a determination of disability made without exclusive reliance on the tables. See, e.g., 20 C.F.R. Part 404, Subpart P, App. 2, Section 200.00(e). When a regulation established by an agency is "judgmental or predictive," as is the case with the age classifications in the medical-vocational guidelines, "complete factual support in the record for the (agency's) judgment or prediction is not possible or required * * * ." FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 813-814 (1978). Fashioning a rule on the basis of expertise, in light of available if imperfect facts, is the traditional function of an administrative agency. "'Cumulative experience' begets understanding and insight by which judgments not objectively demonstrable are validated * * * . The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial procews." NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 349 (1953). 3. The court of appeals' strained reading of the statutory requirement that the Secretary consider age in making disability determinations resulted from its inverted approach to the grant of rulemaking authority in the Act. Rather than ask what Congress had instructed the Secretary to accomplish through regulations, the court began by asking in general terms what kind of issues were proper subjects for rulemaking (App. A, infra, 8a-11a). The court stated that "because both the broad hearing provision and the broad rulemaking provision in the statute must be given their intended play, they should operate in areas where they are best suited" (id. at 10a). Since age "looks to the individual characteristics of the claimant," the court concluded that it was "clearly adjudicative" (id. at 11a) and hence a factor whose effects were properly determined in individualized hearings. As the court recognized, however, the distinction between legislative and adjudicative facts is only "a principle to guide in the construction of th(e) statutory scheme" (App. A, infra, 8a). It should not be allowed to control the clear directions that Congress itself gave for the implementation of the Act. As the government's brief in Campbell emphasizes, Congress granted the Secretary broad and explicit authority to implement the disability provisions of the Act and expressed its hope that the resulting regulations would provide specific criteria to govern the effect that statutory factors such as age have on the evaluation of disability (81-1983 Pet. Br. 13-28). The medical-vocational regulations do make the claimant's chronological age an adjudicative fact. In most cases it will be undisputed; but where it is a matter of uncertainty, age must be determined individually at an administrative hearing. 20 C.F.R. 404.1563(e); 20 C.F.R. Part 404, Subpart P, App. 2, Section 200.00(a). On the other hand, the weight given to a claimant's age in determining disability is a proper issue for rulemaking. The guidelines eliminate the unfairness of treating claimants of the same age differently on the basis of unmeasurable facts about senescence. They do so on the basis of factual judgments about the types of jobs open to individuals of given age (with different education, skills, and impairments), and policy judgments about the levels of restrictions that satisfy the definition of "disability" paointed with a broad brush in the Act. CONCLUSION The petition for a writ of certiorari should be held pending the decision in Schweiker v. Campbell, supra, and should then be disposed of as appropriate in light of that decision. Respectfully submitted. REX E. LEE Solicitor General J. PAUL MCGRATH Assistant Attorney General KENNETH S. GELLER Deputy Solicitor GENERAL JOHN H. GARVEY Assistant to the Solicitor General ROBERT S. GREENSPAN ANNE BUXTON SOBOL Attorneys NOVEMBER 1982 /1/ Copies of the Secretary's petition and brief in Campbell have been sent to counsel for respondents. Although respondents Holmes (App. D, infra, 120a), Little (App. D, infra, 135a), and Soesbe (App. D, infra, 157a) filed claims for Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. (& Supp. IV) 1381 et seq., as well as claims for disability benefits under Title II (the Federal Old-Age, Survivors, and Disability Insurance Program), 42 U.S.C. (& Supp. IV) 401 et seq., the court of appeals did not discuss the regulations applicable under Title XVI. For that reason, we speak throughout this brief only of Title II and do not reproduce the corresponding provisions of Title XVI and its applicable regulations. We note, however, that any decision regarding Title II would apply perforce to Title XVI. The statutory provisions are parallel (compare 42 U.S.C. 1383(d)(1), (e)(1), with 42 U.S.C. 405(a) and 42 U.S.C. (Supp. IV) 423(d)(5)), the regulations are virtually identical (compare 20 C.F.R. 416.945, 416.960 to 416.969 with 20 C.F.R. 404.1545, 404.1560 to 404.1569), and the guidelines in 20 C.F.R. Part 404, Subpart P, App. 2 -- which are at issue in this case -- are incorporate by reference in 20 C.F.R. Part 416, Subpart I. See 20 CF.r. 416.969. /2/ The Act's definition of disability is the same for both Title II and Title XVI. Compare Section 223(d) of Title II, 42 U.S.C. (& Supp. IV) 423(d), with Section 1614(a)(3) of Title XVI, 42 U.S.C. (& Supp. IV) 1382c(a)(3). /3/ The court of appeals did not find that the guidelines furnished evidence in violation of 42 U.S.C. (Supp. IV) 405(b); rather, the court concluded that they established rules governing the ultimate conclusion in disability cases. It noted, moreover, that Section 556(e) of the Administrative Procedure Act -- relied upon by the district court -- applies to adjudication but not to rulemaking (App. A, infra, 15a-19a). /4/ Although it held that "the Secretary has exceeded the authority conferred by the statute because the regulations determine an adjudicative fact" (App. A, infra, 13a), the court concluded that it could "uphold the regulations as written" if "individual consideration (were given to) the age-adjustment factor" (id. at 15a). The court went on to suggest that the Secretary might consider age as a "nonexertional impairment that significantly limits basic work skills, (in which case) the grids are inapplicable" (ibid.). But since the very point of the guidelines is to make disability determinations more rational and consistent by use of "the grids," it is difficult to see how this proposal amounts to "uphold(ing) the regulations as written." It is true that an individual claimant afflicted prematurely with impairments usually associated with age (e.g., arthritis, or premature senility) could prove that he had nonexertional limitations, and thereby obtain a determination of disability to which his age would not otherwise entitle him. See pages 9-10, infra. But the court's suggestion appears to place upon the Secretary the obligation of proving in each case that the mental and physiological effects of senescence on the claimant do not entitle him to benefits. As the court noted, "(a) claimant must first show an impairment serious enough to prevent work in his * * * previous job. Here the burden of proof is on the claimant. * * * If this burden is met the burden shifts to the Secretary to prove that the claimant 'cannot, considering his age, * * * engage in any other kind of substantial gainful work'" (App. A, infra, 4a) (emphasis in original). Presumably, if age means physiological age, it is the effect of that condition on the claimant's work possibilities which the Secretary must prove. /5/ The issue of this case is also related to an issue presented in Kirk v. Schweiker, petition for cert. pending, No. 81-6754 (filed May 20, 1982). Petitioner in that case contends not that the Secretary lacks statutory authority under 42 U.S.C. 405(a) and 42 U.S.C. (& Supp. IV) 423(d) to promulgate the age guidelines, but that the age categories embodied in the guidelines are not supported by valid data correlating age with the ability to perform specific jobs (81-6754 Pet. 2-3 (Question IH), 19). The government has suggested that the Court dispose of the petition in Kirk as appropriate in light of its decision in Campbell. /6/ Indeed, the court of appeals expressly stated its disagreement with the Second Circuit's conclusion that the Secretary must identify "particular jobs that a claimant is capable of performing" (App. A, infra, 16a n.12.). /7/ We are lodging a copy of the First Circuit's opinion in Fogg with the Clerk of the Court and sending a copy to counsel for respondents. Appendix Omitted