Opinion

JUSTICE O'CONNOR, with whom JUSTICE STEVENS joins, concurring.

The Court is, I believe, entirely correct to find that the "step two" regulation is not facially inconsistent with the Social Security Act's definition of disability. Title 42 U.S.C. § 423(d)(2)(A) (1982 ed. and Supp. III) provides:

[A]n 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.

Step two, on its face, requires only that the claimant show that he or she suffers from

an impairment or combination of impairments... [that] significantly limit[s]... physical or mental ability to do basic work activities.

20 CFR § 404.1521(a) (1986). "Basic work activities," the regulation says, include

walking, standing, sitting, lifting, pulling, reaching, carrying, or handling[,]... seeing, hearing, and speaking,... [u]nderstanding, carrying out, and remembering simple instructions[,]... [u]se of judgment[,]... [r]esponding appropriately to supervision, coworkers and usual work situations[,]... [d]ealing with changes in a routine work setting.

§404.1521(b)(1)-(6). I do not see how a claimant unable to show a significant limitation in any of these areas can possibly meet the statutory definition of disability. For the reasons set out by the Court in Part III of its opinion, I have no doubt that the Act authorizes the Secretary to weed out at an early stage of the administrative process those individuals who cannot possibly meet the statutory definition of disability. Accordingly, I concur in the Court's opinion and judgment that the regulation is not facially invalid, and that the case must be remanded so that the lower courts may determine whether or not the Secretary's conclusion that Janet Yuckert is not suffering from a sufficiently severe impairment is supported by substantial evidence.

I write separately, however, to discuss the contention of respondent and various amici (including 29 States and 5 major cities) that this facially valid regulation has been applied systematically to deny benefits to claimants who do meet the statutory definition of disability. Respondent directs our attention to the chorus of judicial criticism concerning the step two regulation, as well as to substantially unrefuted statistical evidence. Despite the heavy deference ordinarily paid to the Secretary's promulgation and application of his regulations, Schweiker v. Gray Panthers, 453 U. S. 34, 453 U. S. 43 (1981), all 11 regional Federal Courts of Appeals have either enjoined the Secretary's use of the step two regulation [ Footnote 2/1 ] or imposed a narrowing construction upon it. [ Footnote 2/2 ] The frustration expressed by these courts in dealing with the Secretary's application of step two in particular cases is substantial, and no doubt in part accounts for the Court of Appeals' decision in this case to simply enjoin the regulation's further use.

Empirical evidence cited by respondent and the amici further supports the inference that the regulation has been used in a manner inconsistent with the statutory definition of disability. Before the step two regulations were promulgated, approximately 8% of all claimants were denied benefits at the "not severe" stage of the administrative process; afterwards, approximately 40% of all claims were denied at this stage. See Baeder v. Heckler, 768 F.2d 547, 552 (CA3 1985). As the lower federal courts have enjoined use of step two and imposed narrowing constructions, the step two denial rate has fallen to about 25%. House Committee on Ways and Means, Background Material and Data on Programs Within the Jurisdiction of the Committee on Ways and Means, 99th Cong., 2d Sess., 114 (Comm. Print 1986). Allowance rates in Social Security disability cases have increased substantially when federal courts have demanded that the step two regulation not be used to disqualify those who are statutorily eligible. For example, in Illinois, after entry of the injunction in Johnson v. Heckler, 769 F.2d 1202 (CA7 1985), cert. pending sub nom. Bowen v. Johnson, No. 85-1442, the approval rate for claims climbed from 34.3% to 52% at the initial screening level, and from 14.8% to 34.1% at the reconsideration level. See Brief for Alabama et al. as Amici Curiae 22.

To be sure, the Secretary faces an administrative task of staggering proportions in applying the disability benefits provisions of the Social Security Act. Perfection in processing millions of such claims annually is impossible. But respondent's evidence suggests that step two has been applied systematically in a manner inconsistent with the statute. Indeed, the Secretary himself has recently acknowledged a need to "clarify" step two in light of this criticism, and has attempted to do so by issuing new interpretative guidelines. See Social Security Ruling 85-28, App. to Pet. for Cert. 37a.

In my view, step two may not be used to disqualify those who meet the statutory definition of disability. The statute does not permit the Secretary to deny benefits to a claimant who may fit within the statutory definition without determining whether the impairment prevents the claimant from engaging in either his prior work or substantial gainful employment that, in light of the claimant's age, education, and experience, is available to him in the national economy. Only those claimants with slight abnormalities that do not significantly limit any "basic work activity" can be denied benefits without undertaking this vocational analysis. See Evans v. Heckler, 734 F.2d 1012, 1014 (CA4 1984); Estran v. Heckler, 745 F.2d 340, 341 (CA5 1984) (per curiam); Brady v. Heckler, 724 F.2d 914, 920 (CA11 1984). As the Secretary has recently admonished in his new guideline:

Great care should be exercised in applying the not severe impairment concept. If an adjudicator is unable to determine clearly the effect of an impairment or combination of impairments on the individual's ability to do basic work activities, the sequential evaluation process should not end with the not severe evaluation step. Rather, it should be continued. In such a circumstance, if the impairment does not meet or equal the severity level of the relevant medical listing, sequential evaluation requires that the adjudicator evaluate the individual's ability to do past work, or to do other work based on the consideration of age, education, and prior work experience.

Social Security Ruling 85-28, App. to Pet. for Cert. 44a. Applied in this manner, step two, I believe, can produce results consistent with the statute in the vast majority of cases and still facilitate the expeditious and just settlement of claims.

Notes

[ Footnote 2/1 ]

Dixon v. Heckler, 785 F.2d 1102 (CA2 1986) (preliminary injunction), cert. pending, No. 86-2; Wilson v. Secretary of Health and Human Services, 796 F.2d 36 (CA3 1986); Baeder v. Heckler, 768 F.2d 547 (CA3 1985); Johnson v. Heckler, 769 F.2d 1202 (CA7 1985), cert. pending sub nom. Bowen v. Johnson, No. 85-1442; Brown v. Heckler, 786 F.2d 870 (CA8 1986); Yuckert v. Heckler, 774 F.2d 1365 (CA9 1985) (case below); Hansen v. Heckler, 783 F.2d 170 (CA10 1986).

[ Footnote 2/2 ]

McDonald v. Secretary of Health and Human Services, 795 F.2d 1118 (CA1 1986) (relying upon Social Security Ruling 85-28); Evans v. Heckler, 734 F.2d 1012 (CA4 1984); Stone v. Heckler, 752 F.2d 1099 (CA5 1985); Estran v. Heckler, 745 F.2d 340 (CA5 1984); Farris v. Secretary of Health and Human Services, 773 F.2d 85 (CA6 1985); Salmi v. Secretary of Health and Human Services, 774 F.2d 685 (CA6 1985); McCruter v. Bowen, 791 F.2d 1544 (CA11 1986); Brady v. Heckler, 724 F.2d 914 (CA11 1984).