The Secretary contends that the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, and its relevant legislative history implicitly ratified her use of the non-severe step of the sequential analysis and her method of doing so, and should be taken as indication that she has, in fact, been comporting with Congress' intentions. The 1984 Reform Act included a number of changes (foremost among them being the requirement that the Secretary consider all of an individual's impairments, whether related or not) but the Secretary argues that Congress' failure to find fault with the severity regulation in other respects warrants the conclusion that Congress regarded it as otherwise consistent with the Act.
The majority of the courts having considered the significance to be given the 1984 legislation, however, have held that the Reform Act did not alter the prevailing law by which disability is to be determined, and, at most, indicated approval only of a true de minimis threshold requirement. See, e.g., Stone, 752 F.2d at 1101-02; Smith v. Heckler, 595 F. Supp. at 1178; Johnson, 593 F. Supp. at 379. But see Hall, 602 F. Supp. at 1174-76. Since the records in these cases contain no evidence with respect to the work the Secretary believes these plaintiffs remain able to perform, that issue, too, must be addressed upon remand.
Finally, plaintiffs take issue with the Secretary's failure to consider the combined effects of their several ostensibly non-severe impairments. Until amended effective March 5, 1985, the regulation stated: "we will consider the combined effects of unrelated impairments only if all are severe . . . ." 20 C.F.R. §§ 404.1522, 416.922 (1984). Again the Secretary argues that prior to the effective date of the Reform Act, she was not required by statute to consider the cumulative impact of non-severe impairments.
She quotes the Conference Committee report accompanying the Reform Act as representing Congress' recognition that "there is no statutory provision concerning the consideration of the combined effects of a number of different impairments." 130 Cong. Rec. H 9821, 9829 (daily ed. Sept. 19, 1984). Had Congress believed the regulation was inconsistent with the Act before, she reiterates, it would at least have provided for retroactive application for the new provision by means of a mandatory remand.
Despite the Conference Committee's apparent - if ambiguous - concession that no statutory provision expressly directed consideration of multiple impairments before 1984, the Court concludes that Congress' original use of the plural "impairments,"
in conjunction with the clear weight of judicial authority antedating the 1984 legislation, requires an interpretation of the Act as mandating consideration of combined effects prior to 1984, and, thus, should have been so interpreted in consideration of these plaintiffs' cases. As one court noted, a regulation which fails to do so is not only inconsistent with the Act but with common sense as well. Burnam v. Schweiker, 682 F.2d 456, 458 (3d Cir. 1982). Accord, Dixon, 589 F. Supp. at 1508; Johnson, 593 F. Supp. at 381. See also Narrol v. Heckler, 234 U.S. App. D.C. 204, 727 F.2d 1303, 1307 (D.C. Cir. 1984); Wallace v. HHS, 722 F.2d 1150, 1155 (3d Cir. 1983); Ferguson v. Schweiker, 641 F.2d 243, 250 & n.9 (5th Cir. 1981); Barney v. HHS, 743 F.2d 448, 453 (6th Cir. 1984); Camp v. Schweiker, 643 F.2d 1325, 1333 (8th Cir. 1981); Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984).
Plaintiff Weathers seeks to maintain her suit as a class action on behalf of herself and a class defined as all other similarly situated residents of the District of Columbia who have been or will be denied SSI or OASDI benefits, or have had or will have such benefits terminated, on grounds that they do not have a severe impairment within the meaning of the Secretary's regulations, rules and policies as she has applied them to her. To qualify as a class representative plaintiff has the burden of showing that
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). If she meets all of these four basic prerequisites, she must, in addition, show that the case satisfies one or more of the conditions set forth in Fed.R.Civ.P. 23(b), the most apposite for present purposes being subparagraph (2), viz., "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole."
Plaintiff estimates that the proposed class contains in excess of 7,400 persons. The Secretary does not dispute the plaintiff's arithmetic; she does, however, contend that the proposed class contains an unknown, but potentially substantial, number of individuals over whom the Court would have no jurisdiction in the first place, because they have either failed to exhaust their administrative remedies under the Act or failed to present a claim for benefits at all. Thus, she argues, plaintiff cannot show that the class of those who, without more, may now be entitled to benefits is so numerous that joinder is impracticable.
The jurisdictional impediments to reviews of benefit denials, however, are inapplicable in the context of this proceeding. The Secretary misapprehends the nature of the class relief sought, which will not result in the payment of benefits to all or any class members, but only in a change in the Secretary's policies and procedures by which claims for them will henceforth be considered. See Johnson v. Heckler, 100 F.R.D. 70, 74 (N.D. Ill. 1983); Smith, 595 F. Supp. at 1175. Once again other courts having preceded this Court to the issue have specifically certified such classes under facts identical to those before this Court. See, e.g., Smith, 595 F. Supp. at 1175; Dixon, 589 F. Supp. at 1511-12.
There can be no doubt that these cases present common questions of law, appropriately handled in the context of a class action. As noted above, plaintiff Weathers does not request an adjudication of individual class members' entitlement to benefits. Rather, she seeks only a determination of the validity of certain administrative regulations and policies which themselves determine eligibility when applied to specific cases. As a result, factual variations are of minimal importance, the class claim being controlled solely by common questions of law. See, e.g., Johnson, 100 F.R.D. at 74. Similarly, it cannot be disputed that, based as they are on the same legal theory, the named plaintiff's claims are typical of those asserted on behalf of the class. Id.
Lastly, the Court finds that the record fully supports plaintiffs' assertions that the Secretary has "acted or refused to act" on grounds applicable to the class as a whole, i.e., she has applied her regulations evenhandedly, albeit erroneously, to all who have applied for benefits and will presumably continue to do so until told she may not. In such circumstances, the rights of others of whom plaintiff Weathers is typical are particularly appropriate for advance determination by way of the declaratory and injunctive relief sought here.
For the reasons set forth, it is, therefore, this 10th day of March, 1986,
ORDERED, that defendant's motion for partial summary judgment is denied; and it is
FURTHER ORDERED, that plaintiff's motion for reconsideration in Pratt v. Heckler, 629 F. Supp. 1496, Civil Action No. 83-3508, is granted; and it is
FURTHER ORDERED, that plaintiffs' motions for partial summary judgment are granted; and it is
FURTHER ORDERED, that plaintiffs' motion for class certification in Weathers v. Heckler, 629 F. Supp. 1496, Civil Action No. 84-3035, is granted in part, and that, for purposes of relief under this Order, the plaintiff class shall include all similarly situated residents of the District of Columbia who, between 1978 and the date hereof, have been denied SSI or OASDI benefits, or have had such benefits terminated, on the ground that they do not have a severe impairment within the meaning of the Secretary's rules, regulations and policies in the particulars found invalid hereby; and it is
FURTHER ORDERED, that these cases are remanded to the Secretary; and it is
FURTHER ORDERED, that plaintiff's motion for declaratory and injunctive relief in Weathers v. Heckler, 629 F. Supp. 1496, Civil Action No. 84-3035, is granted, and it is ADJUDGED AND DECLARED: (1) that defendant's determination of disability claims at the second step of the sequential procedure on the basis of inability to do basic work activities, as opposed to inability to do previous work, and 20 C.F.R. §§ 404.1520(c), 416.920(c), and SSR 82-56, insofar as each establishes and requires this policy, violates 42 U.S.C. §§ 423(d) and 1382c(a)(3)(A), (B), (C), and are null and void, and (2) that defendant's policy of refusing to combine nonsevere impairments, and 20 C.F.R. §§ 404.1522, 416.922, and SSR 82-55, insofar as each establishes and requires this policy, violates 42 U.S.C. §§ 423(d) and 1382c(a)(3)(A), (B), (C), and are null and void; and it is
FURTHER ORDERED, that defendant Margaret M. Heckler, her successors, and her officers, agents, servants, employees, and attorneys, and other persons in active concert or participation with her, are permanently enjoined from enforcement thereof, except in accordance herewith; and it is
FURTHER ORDERED, that the Secretary: (1) hold new disability hearings for plaintiffs, and all members of the plaintiff class who are otherwise eligible therefor and request rehearing; (2) reinstate OASDI and/or SSI benefits pending SSA hearing determinations for class members whose benefits had been terminated as a result of the defendant's policies determined unlawful by this Court and for whom new disability hearings are requested; and (3) grant retroactive benefits to plaintiffs and class members who, after a new hearing, are found in accordance herewith to be disabled within the meaning of the Act.
Thomas Penfield Jackson, U.S. District Judge