RICHARD S. SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER v. CARMEN CAMPBELL No. 81-1983 In the Supreme Court of the United States October Term, 1981 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 Second Circuit in this case. Petition for a writ of Certiorari to the United States Court of Appeals for the Second Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutes and regulations involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-11a) is reported at 665 F.2d 48. The opinion of the district court (App. B, infra, 12a-14a) is unreported. The decisions of the Social Security Administration Appeals Council (App. C, infra, 16a-19a) and the Administrative Law Judge (App. D, infra, 20a-29a) are unreported. JURISDICTION The judgment of the court of appeals (App. E, infra, 32a-33a) was entered on November 30, 1981. A petition for rehearing was denied on February 11, 1982 (App. E, infra, 30a-31a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES AND REGULATIONS INVOLVED The pertinent provisions of Sections 205(a) and 223(d) of the Social Security Act, 42 U.S.C. 405(a) and 423(d); 20 C.F.R. 404.1545; 20 C.F.R. 404.1560 to 404.1569; and 20 C.F.R. Part 404, Subpart P, Appendix 2, are reproduced in Appendix F, infra, 34a-75a. QUESTION PRESENTED Whether the Secretary of Health and Human Services may in appropriate cases rely upon published medical-vocational guidelines, rather than individualized proof, to determine whether a claimant for disability benefits under the Social Security Act is able to perform substantial gainful work in the national economy. STATEMENT 1. Titles II and XVI of the Social Security Act provide disability benefits to insured 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), 1382c(a)(3)(B). 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 or mental impairment, the vocational factors of age, education, and work experience. Ibid. Since the enactment of the disability program in the 1950's Congress, and in particular the congressional committees with oversight responsibility for the social security programs, have sought promulgation of regulations making more specific the criteria to be used for disability determinations. See Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 527 (6th Cir. 1981); Santise v. Schweiker, Nos. 81-1904 et al. (3d Cir. Apr. 8, 1982), slip op. 24-25 n.24. Before adopting the regulations at issue here, the Social Security Administration over a period of years had developed administrative materials to be used by state agencies in making initial and reconsideration determinations on disability. See 43 Fed. Reg. 55349, 55350-55351 (1978). /1/ These materials were not published as regulations and were not binding on or generally available to administrative law judges or the federal courts. In 1978, after years of study and consultation with Congress, and after giving interested parties an opportunity for comment, the Secretary promulgated regulations designed to implement the disability provisions of the Act. 43 Fed. Reg. 9284 (1978). These medical-vocational regulations, which became effective on February 26, 1979 (id. at 55349), /2/ govern the decisional sequence for disability claims. /3/ Before the guidelines may be consulted, the claimant must demonstrate that he is not currently working. If he is, the claim will be denied. 20 C.F.R. 404.1520(b). Second, the claimant must show, on the basis of medical evidence alone, that his impairment is "severe," i.e., that it "significantly limits (his) physical or mental ability to do basic work activities." If it does not, the claim again will be denied. 20 C.F.R. 404.1520(c). Third, if the impairment is as severe as those listed in Appendix 1 of the regulations, 20 C.F.R. Part 404, Subpart P, the claimant will receive benefits without regard to his vocational characteristics. 20 C.F.R. 404.1520(d). Fourth, if the impairment is less severe than those listed in Appendix 1, the claimant must show that, because of his impairment, he can no longer perform work he has done in the past. If he can still do such work, his claim will be denied. 20 C.F.R. 404.1520(e). If he cannot do such work, there must be further factual determinations about each of the variables made relevant by the Act and the regulations: the claimant's "residual functional capacity" (i.e., the level of work he can perform, based upon medical evidence, despite his impairment), age, education, and prior work experience. 42 U.S.C. 423(d)(2)(A); 20 C.F.R. 404.1545, 404.1560 to 404.1568. With regard to each of these factors, the claimant may introduce evidence and rebut the case made by the Secretary. 20 C.F.R. Part 404, Subpart P, Appendix 2, Section 200.00(a). It is only after this detailed inquiry into a claimant's medical and vocational characteristics that the guidelines come into play. The tables set out in Appendix 2 of the regulations are consulted to determine one question: whether this exist jobs in the national economy that can be performed by a person of the claimant's residual functional capacity, age, education, and prior work experience. The tables do not purport to answer that question for all claimants who have reached the last stage in the decisional sequence. For example, the tables consider only a claimant's strength in their division according to "residual functional capacity." Thus, for one whose impairment results from mental or sensory limitations, a more individualized determination of available work must be made. 20 C.F.R. Part 404, Subpart P, Appendix 2, Section 200.00(e). For those cases in which use of the tables is appropriate, the Secretary has taken administrative notice of jobs that are available in the national economy. For example, underlying the table for sedentary work -- the most restricted category encompassed by the tables -- are approximately 200 unskilled occupations, each representing numerous jobs, that can be performed by claimants with the exertional capacity for a full range of sedentary work. 20 C.F.R. Part 404, Subpart P, Appendix 2, Section 201.00(a). See also Sections 202.00(a) (1600 occupations for those able to do light work); 203.00(a) (2500 occupations for those able to do medium work). The weight given to the combinations of age, education, and work experience in each table is based on further administrative notice of the significance of those factors for the claimant's ability to adapt to new work situations. 43 Fed. Reg. 55353-55355 (1978). The sources of data on the numbers of unskilled jobs and the vocational significance of age, education, and work experience are set forth in the preamble to the regulations, 43 Fed. Reg. 55352-55355 (1978), and in the text of the regulations, 20 C.F.R. 404.1566(d) (job data); Appendix 2, Section 200.00(b) (job data). /4/ The regulations are accompanied by a detailed textual statement that explains and justifies each of the medical-vocational rules (App. F, infra, 52a-75a). This method of determining whether "substantial gainful work * * * exists in the national economy," 42 U.S.C. 423(d)(2)(A), is essentially nothing more than a perfection of the procedure that was employed before the guidelines were adopted. In most preregulation cases that issue was determined through the use of testimony by vocational experts knowledgeable about the existence and requirements of jobs in the national economy. See Hephner v. Mathews, 574 F.2d 359, 362-363 (6th Cir. 1978). /5/ Such experts would rely, as a basis for their information, on the kinds of sources that are the foundation for the guidelines in Appendix 2. The tables simply afford the added benefit of the knowledge the agency has gathered in more than two decades of administering the disability provisions of the Act, and most importantly, assure consistent determinations across the multitude of cases. 2. Respondent filed a claim for disability benefits in October 1979, alleging disability due to a back problem and high blood pressure (App. A, infra, 2a). Her claim was denied initially, and upon reconsideration (ibid.). On September 26, 1980, an administrative law judge concluded after a hearing that respondent was not disabled. He found that while respondent was unable to perform her past work, she retained the residual functional capacity for light work (App. D, infra, 22a-27a). The ALJ found that respondent was then 52 years old, "closely approaching advanced age," had a marginal education but was able to communicate in English, and had unskilled work experience (id. at 28a-29a). On the basis of these findings, the ALJ applied Rule 202.10 in Table 2 of Appendix 2, which directed a conclusion that respondent was not disabled (see App. F, infra, 69a). The decision of nondisability in respondent's case was based on administrative notice that there are some 1,600 unskilled occupations that can be performed by persons with the exertional capacity for a full range of light work, and on administrative notice of expert sources on the vocational significance of respondent's age, education, and work experience (id. at 65a-67a). In December 1980, the Social Security Administration Appeals Council adopted the decision of the administrative law judge (App. C, infra, 16a-19a). Respondent then sought judicial review in the United States District Court for the Eastern District of New York. On April 29, 1981, the district court concluded that there was substantial evidence to support the Secretary's decision and dismissed the complaint (App. B, infra, 15a). 3. The court of appeals remanded to the Secretary for further evidentiary proceedings (App. A, infra, 1a-11a). The court agreed that there was substantial evidence in the administrative record to support the finding that respondent had the residual functional capacity to perform a wide range of light work (id. at 7a). It also did not dispute the appropriate classification of respondent's age, education, and work experience. The court nevertheless held that the Secretary, in determining whether there was "work * * * in the national economy" (see 42 U.S.C. 423(d)(2)(A)) that respondent could perform, was not entitled to take administrative notice of the jobs on which the tables in Appendix 2 are predicated. 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.'" (App. A, infra, 9a, quoting Decker v. Harris, 647 F.2d 291, 298 (2d Cir. 1981)). Without such specificity, the court believed, "the claimant is deprived of any real chance to present evidence showing that she cannot in fact perform the types of jobs that are administratively noticed by the guidelines" (App. A, infra, 10a). /6/ REASONS FOR GRANTING THE PETITION This case involves a question of substantial importance for the operation of the Social Security Administration's disability programs. The medical-vocational regulations set forth criteria intended to ensure rationality and consistency in the adjudication of hundreds of thousands of claims for disability benefits each year. By invalidating these regulations and instead requiring individualized proof in each case about the existence of jobs open to the claimant in the national economy, the court of appeals has required the replication on an enormous scale of a task already adequately performed at the rulemaking stage. This decision ignores the Secretary's broad statutory authority to adopt rules and regulations "necessary or appropriate to carry out" the provisions of the Act (42 U.S.C. 405(a)) and conflicts with the decision of every other court of appeals that has considered the issue. Review by this Court is plainly warranted. 1. The disability hearing system managed by the Department of Health and Human Services pursuant to the Social Security Act is "probably the largest adjudicative agency in the western world." Santise v. Schweiker, supra, slip op. 12, quoting J. Mashaw et al., Social Security Hearings and Appeals: A Study of the Social Security Administration Hearing System xi (1978). Approximately 2.4 million claims for Title II disability insurance benefits and Title XVI disability benefits were filed by workers in fiscal year 1980. Department of Health and Human Services, Social Security Annual Report to the Congress for Fiscal Year 1980, at 23, 25 (1981). More than a quarter of a million claimants in fiscal year 1980 pursued their claims to the point of requesting a hearing before an administrative law judge. Id. at 28. In turn, nearly 8000 claimants found not disabled by the Secretary filed suit in federal court seeking review of the adverse administrative decision. Id. at 30. With respect to a large number of those claims, the ultimate question was whether the claimant, considering his impairment, age, education, and work experience, should be considered disabled because he could not perform "substantial gainful work which exists in the national economy." 42 U.S.C. 423(d)(2)(A). The decision in this case renders useless the guidelines for making that determination which the Secretary adopted in 1979, after long and elaborate preparation. /7/ 2.a. The Social Security Act does not compel these unpalatable consequences. The court of appeals' decision in this case ignores the broad statutory grant of authority to the Secretary to adopt the guidelines in Appendix 2. Section 205(a) of the Act, 42 U.S.C. 405(a), states: The Secretary shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits (under Title II). See also 42 U.S.C. 423(d)(5). This Court has recently reaffirmed that regulations adopted by the Secretary pursuant to an express delegation of substantive authority are entitled to "legislative effect" and must be upheld unless they are arbitrary or capricious. Schweiker v. Gray Panthers, No. 80-756 (June 25, 1981), slip op. 9; see also Batterton v. Francis, 432 U.S. 416, 425-426 (1977). The medical-vocational regulations plainly satisfy that test. They require a specific, individualized factual determination of each one of the particular characteristics that the Act makes relevant to a claimant's ability to engage in substantial gainful work: the nature of his impairment and his residual functional capacity, his age, his education, and his prior work experience. The only issue on which the regulations do not require individualized proof in every case is the nature of the job market itself. That is a matter that is more apt for decision by rulemaking rather than by adjudication -- whether jobs exist in the national economy for those classes of people whose medical and vocational characteristics match one of the descriptions in the tables. Such a set of rules unquestionably regulates "the nature and extent of the proofs and evidence" in disability cases, and is both "necessary (and) appropriate to carry out (the disability) provisions." See Cummins v. Schweiker, 670 F.2d 81, 83 (7th Cir. 1982); Kirk v. Secretary of Health and Human Services, supra, 667 F.2d at 530. Part of the impetus behind promulgation of the regulations and the accompanying guidelines was the widely recognized tendency of the disability process to reach inconsistent reasults in similar cases. Santise v. Schweiker, supra, slip op. 12-14. In 1976, for example, the Comptroller General reported that a study of ten state agencies showed complete agreement on the proper disposition of only 22% of a test group of disability claims. Comptroller General of the United States, The Social Security Administration Should Provide More Management and Leadership In Determining Who Is Eligible For Disability Benefits 6-10 (1976). The apparent arbitrariness of such an adjudicatory system resulted in part from the occasional failure to consider all the vocational factors Congress considered relevant, in part from the assignment of inconsistent weight to those factors, and in part from the necessarily ad hoc judgments made by agencies and administrative law judges, "based on the testimony of vocational experts * * * and on their own limited and variable knowledge of the labor market," about what kinds of jobs exist. Cummins v. Schweiker, supra, 670 F.2d at 83. The medical-vocational regulations and the guidelines in Appendix 2 respond to those concerns by focusing the attention of the factfinder on all of the relevant vocational criteria, by considering the weight those factors are given in the labor market, and by taking administrative notice -- after thorough investigation and the opportunity for public comment -- of the occupations available in the national economy. The result is that "the claims of all individuals similarly situated are handled in a fair and consistent manner" and that "determinations made by one set of adjudicators on the basis of the same facts will be handled the same way by another group of adjudicators, wherever in the country they are located." 43 Fed. Reg. 55362 (1978). b. The court of appeals stated its opposition to the medical-vocational regulations in these terms (App. A, infra, 10a): (O)ur major concern is that the claimant be given adequate notice of the nature and demands of the types of jobs allegedly available. Absent sufficient notice, the claimant is deprived of any real chance to present evidence showing that she cannot in fact perform the types of jobs that are administratively noticed by the guidelines. The court's perception was quite accurate: the very purpose of the guidelines is to make a conclusive determination "of the availability of jobs * * * for claimants whose abilities are accurately described by the grid." Kirk v. Secretary of Health and Human Services, supra, 667 F.2d at 531. But the court offered no reason why the achievement of that purpose should render the guidelines invalid. It is important, in the first place, to make clear the limited nature of the determination embodied in the tables. They are consulted only after the decision-maker has considered, and the claimant has had a chance to rebut, all relevant evidence bearing on the claimant's physical and mental impairments, prior work experience, education, and age, and only after it has been determined that the claimant's medical and vocational characteristics are accurately described by some category in the tables. The regulations specifically dictate that "a conclusion of disabled or not disabled is not directed" if a claimant's vocational profile is not precisely contained in Appendix 2. 20 C.F.R. 404.1569 and Appendix 2, Section 200.00(d). For example, if the claimant has an impairment unrelated to physical strength, the tables cannot be used to deny benefits. 20 C.F.R. Part 404, Subpart P, Appendix 2, Section 200.00(e). Similarly, if his impairment is exertional, but falls between the ranges indicated in the tables, the rules only offer guidance, not a fixed result. Section 200.00(e). /8/ Moreover, the regulations expressly state that age categories will not be applied "mechanically in a borderline situation." 20 C.F.R. 404.1563(a). It is also important to emphasize that a claimant does have explicit notice of the relevant requirements for performing all the unskilled jobs of which the tables in Appendix 2 take administrative cognizance. For example, the unskilled jobs involving light work (Table 2) -- the category of work the court of appeals acknowledged respondent could perform -- are described in the regulations as follows: Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. 404.1567(b). Those individuals whose abilities are accurately described in the tables, however, may not require the Secretary to repeat in each case the process that resulted in promulgation of the regulations. Here, for example, the Secretary found that respondent had the "residual functional capacity" to perform "light work," and the court of appeals, upheld that finding as supported by the record (App. A, infra, 7a). An additional requirement that respondent be notified about, and be given an opportunity to rebut, the approximately 1600 specific types of unskilled "light work" existing in the national economy would be superfluous. The existence of such jobs has already been determined after careful study and after public notice and comment, based on the same data that "a vocational expert would consult in determining whether a particular claimant's abilities matches (sic) a job's requirements." Kirk v. Secretary of Health and Human Services, supra, 667 F.2d at 530. Nothing in the Act precludes the Secretary from determining those issues by a general rule, rather than by case-by-case adjudication. /9/ See Schweiker v. Gray Panthers, supra, slip op. 13. As the Seventh Circuit recently remarked (Cummins v. Schweiker, supra, 670 F.2d at 83) If the statutory term "disability" described a historical fact best or only ascertainable on a case-by-case basis, binding criteria might be a problem; but it does not; it is a judgment that a person's health makes it exceedingly unlikley that he could find a job even if he looked hard for one everywhere in the United States. Such a judgment, to be well informed, requires a broad knowledge of the labor market. The Department of Health and Human Services has this knowledge and can both supplement and draw upon it in a rulemaking proceeding. It was entitled to substitute an institutional judgment for the ad hoc judgments of administrative law judges based on the testimony of vocational experts and other witnesses and on their own limited and variable knowledge of the labor market. 3. The Second Circuit's decision in this case conflicts with decisions of the First, Third, Fourth, Fifth, Sixth, and Seventh Circuits upholding use of the guidelines in Appendix 2 to determine disability. In Santise v. Schweiker, supra, slip op. 29-30 (emphasis in original; citation & footnote omitted), the Third Circuit rejected the precise argument relied on by the Second Circuit in this case: As for the "requirement" * * * that the Secretary identify specific jobs capable of being performed by a disability claimant, we stress that the Social Security Act, by its terms, does not place such an obligation upon the Department. Rather, this "judicially imposed standard (was) designed to ensure that each claimant's own particular characteristics . . . are given full consideration" by an ALJ and a reviewing court. And we are persuaded that this same objective can be realized if administrative notice is substituted for statements that would have been made by vocational experts. * * * (I)t would appear sufficient, for purposes of the substantial evidence test, for the Secretary to demonstrate, to the satisfaction of a reviewing court, that there exist many jobs capable of being filled by an individual with the claimant's characteristics. In Kirk v. Secretary of Health and Human Services, supra, 667 F.2d at 530 (emphasis in original), the Sixth Circuit reached precisely the same conclusion: The grid has displaced the Secretary's burden of demonstrating which particular jobs the claimant can perform. But, that does not render the regulations invalid. The grid itself takes into account the same sources which a vocational expert would consult in determining whether a particular claimant's abilities matches (sic) a job's requirements, yet provides greater uniformity with fewer administrative costs. To the same effect are cases in the First, Fourth, Fifth and Seventh Circuits. Rodriguez v. Secretary of Health and Human Services, No. 81-1610 (1st Cir. Apr. 2, 1982); see Geoffroy v. Secretary of Health and Human Services, 663 F.2d 315, 318-319 (1st Cir. 1981); Frady v. Harris, 646 F.2d 143, 144-145 (4th Cir. 1981); /10/ Salinas v. Schweiker, 662 F.2d 345, 347-349 (5th Cir. 1981); Cummins v. Schweiker, supra, 670 F.2d at 83. The issue is also under consideration in every other court of appeals except the District of Columbia Circuit. McCoy v. Schweiker, appeal pending, Nos. 81-1629 et al. (8th Cir.) (en banc); Stone v. Schweiker, appeal pending, No. 82-3017 (9th Cir.); Blanchette v. Schweiker, appeal pending, No. 81-2468 (10th Cir.); /11/Broz v. Schweiker, appeal pending, Nos. 81-7140 & 81-9558 et al. (11th Cir.). /12/ Numerous other cases raising the same question have been stayed in various circuits pending decision of the lead cases cited above. The Second Circuit's ruling is thus out of step with the holdings of at least six other courts of appeals on an issue of substantial practical importance. Regardless of the outcome of pending appeals, the conflict among the circuits will continue to exist, and the Secretary will be precluded from utilizing the medical-vocational regulations, on a nationwide basis, if the result is to deny disability benefits. This Court should resolve the conflict. CONCLUSION The petition for a writ of certiorari should be granted. 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 APRIL 1982 /1/ There are four levels of administrative consideration for disability claims. The first two -- the initial and reconsideration determinations -- are made for the Social Security Administration by state agencies. 42 U.S.C. 421(a). The third level is a hearing before an administrative law judge in the Social Security Administration. 42 U.S.C. 405(b). The fourth level is review by the Appeals Council of the Social Security Administration. Judicial review of the final administrative decision is authorized by 42 U.S.C. 405(g). See Califano v. Sanders, 430 U.S. 99, 101-102 (1977). /2/ The agency later rewrote the regulations to make them clearer and easier to use. 45 Fed. Reg. 55566 (1980). /3/ The Act's definition of disability is the same for both the Federal Old-Age, Survivors, and Disability Insurance program (Title II) and the Supplemental Security Income ("SSI") program (Title XVI). Compare Section 223(d) of Title II, 42 U.S.C. 423(d), with Section 1614(a)(3) of Title XVI, 42 U.S.C. 1382c(a)(3). The medical-vocational regulations apply to disability determinations under both programs; 20 C.F.R. Part 404, Subpart P, governs Title II claims; 20 C.F.R. Part 416, Subpart I, which is virtually identical to Subpart P, applies to SSI claims. Respondent claimed benefits only under Title II. /4/ For example, the determinations about unskilled jobs at various levels are "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. Part 404, Subpart P, Appendix 2, Section 200.00(b). Similar sources bolster the Secretary's recognition of the effect that the several vocational characteristics have on the ability to adapt to work other than past work. Concerning the effect of education the regulations rely, in addition to the sources listed above and to statistics compiled by the Department, on such materials as "The Long Term Unemployed, Educational Attainment (October 1964) published by the Manpower Administration of the Department of Labor in cooperation with the Oklahoma Employment Security Commissioner (pages vi and 18); Monthly Labor Review of January 1974, an article entitled 'Educational Attainment of Workers, March 1973' (pages 58-81); Automation Manpower Services Program Report by the New Jersey State Employment Service entitled 'The "Mack" Worker, The Impact of His Job Loss 2 1/2 Years Later' (December 1965) (pages 14 and 15); A Survey of the Employment of Older Workers (1965) by the State of California Department of Employment and Citizens' Advisory Committee on Aging; The Impact of Technological Change in the Meatpacking Industry, published by the Division of Employment, Department of Labor, in March 1966 (page 16)." 43 Fed. Reg. 55354 (1978). /5/ The Secretary was, however, permitted to have a determination of nondisability on administrative notice where it was established that a claimant could do a full range of work at some particular exertional level and that his vocational characteristics were not particularly adverse. See, e.g., Parker v. Harris, 626 F.2d 225, 233 (2d Cir. 1980); White v. Harris, 605 F.2d 867, 868-869 (5th Cir. 1979). /6/ The court did not explain why notice of specific occupational possibilities should be required if the guidelines, which render superfluous a hearing on that question, are valid. It can only be presumed that the court found the guidelines in some way to have exceeded the Secretary's authority to enforce the Act by promulgating regulations. But see 42 U.S.C. 405(a). In any event, the effect of the court's decision is to preclude the use of the textual and tabular guidelines in 20 C.F.R. Part 404, Subpart P, Appendix 2, in all stages of the disability decisionmaking process. And since the regulations in Subpart P, 404.1501 to 404.1598, are in many ways keyed to the ultimate determination made in Appendix 2, they too are pro tanto invalid. This is particularly true of 20 C.F.R. 404.1560 to 404.1569. /7/ The requirement that the Secretary prove the availability of work through the testimony of vocational experts or similar means would entail particular hardships for the disability hearing system in the Second Circuit, because that court has imposed limits on the time within which hearings must be held and determinations made in Title II and Title XVI cases. Sharpe v. Harris, 621 F.2d 530 (2d Cir. 1980); Barnett v. Califano, 580 F.2d 28 (2d Cir. 1978); White v. Mathews, 559 F.2d 852 (2d Cir. 1977), cert. denied, 435 U.S. 908 (1978). /8/ Appendix 2, Section 201.00(h) gives the following example: Example 1: An individual under age 45 with a high school education can no longer do past work and is restricted to unskilled sedentary jobs because of a severe medically determinable cardiovascular impairment (which does not meet or equal the listings in Appendix 1). A permanent injury of the right hand limits the individual to sedentary jobs which do not require bilateral manual dexterity. None of the rules in Appendix 2 are applicable to this particular set of facts, because this individual cannot perform the full range of work defined as sedentary. Since the inability to perform jobs requiring bilateral manual dexterity significantly compromises the only range of work for which the individual is otherwise qualified (i.e., sedentary), a finding of disabled would be appropriate. /9/ The court below did not suggest that the general rule applicable to respondent's case is unreasonable or unsupported by the occupational data consulted during the administrative process. /10/ In Frady, the Fourth Circuit upheld the use of the tables. In Hall v. Harris, 658 F.2d 260, 267-268 (4th Cir. 1981), another panel of the Fourth Circuit questioned their validity in dictum. In Epsilantis v. Schweiker, No. 80-1600 (Apr. 13, 1982), the court appointed counsel for a pro se claimant, heard initial argument en banc to resolve the tension between Frady and Hall, and upheld the rule in Frady by an equally divided court. /11/ The Tenth Circuit has already signalled its approval of the tables in dictum. See Hilton v. Schweiker, No. 81-1139 (10th Cir. Feb. 26, 1982), slip op. 9-10; Chapman v. Schweiker, No. 81-1025 (10th Cir. Feb. 26, 1982), slip op. 9. /12/ The Eleventh Circuit, in contrast to the Tenth, has in dictum expressed "serious doubts" about determinations based solely on the tables in Appendix 2. See Cowart v. Schweiker, 662 F.2d 731, 736 n.1 (11th Cir. 1981). Appendix Omitted