Rosa Lee Brown v. Margaret M. Heckler, Secretary of Health and Human Services of the United States
786 F.2d 870
8th Cir.
1986
Check Treatment

*1 Appeals, United States Court Before HEANEY Circuit Eighth Circuit. HANSON,* Judges, and District Senior 12, 1986. Submitted Feb. Judge. Decided March HEANEY, Judge.

. appeals Lee Brown a district Rosa affirming decision Human Health and Services’s denial of insurance benefits security income For the reasons benefits. below, we set forth reverse and BACKGROUND sixty-two-year-old Brown is a woman years college training. Her with two primarily relevant work was clerical May applied for nature. On she supple- disability insurance under 42 security 416(i) 1381a, respectively, U.S.C. §§ problems, complaining of heart and back spells, pains, spasms, neck muscle blackout body pain, She at- general and dizziness. many physical problems of her tributes accidents in automobile рri- daily consist 1980. Brown’s activities sitting watching marily of television while cook, do lying down. She does housework, activi- shop, in social sitting ‍​​​‌​‌​​​​​​‌‌‌‌​​‌​​‌‌‌​​​‌​​‌​‌‌​‌​‌‌‌‌​​‌​‌‌‌‍for pain aggravated by is Her ties. minutes, abilities to five more than severely limited. and walk stand Valium, daily.1 Motrin, and Dalmane takes Administration The Social recon- initially and on application both hearing May 18, sideration. law an administrative held before was Hanson, ed. Physician’s Desk pain. United William C. The Honorable Reference anxiety mаnage disor- Judge the United is used to District Valium States Senior spasms Court for Southern District muscle States District as to relieve skeletal ders as well Iowa, designation. sitting by injury.. is Id. Dalmane caused Id. at agent hypnotic used in insomnia. anti-inflammatory agent is an 1. Motrin 1587-88. osteoar- rheumatoid arthritis and used to treat swelling joint thritis because reduces *2 regulation requires (AU), He cess. This who affirmed the denial. judge although was evidence of found that there “not disabled” if the claimant does not degenerative in the cervical “early arthritis regardless have severe chronic ob- spine, early lumbar spine and education, age, possible structive argues regulation ence. Brown reac- musculoskeletal Security Act, contravenes tion,” not met the Brown had requires a consideration of these vocational sequen- quirement determining disability. factors when process,2 and was therefore tial evaluation Secretary argues regulation is con- be- The ALJ’s determination not disabled. sistent with the Act. Secretary’s final decision when came the question. are divided on this Circuits review. On Appeals Council denied accepted 5, 1985, affirmed Three Circuits3 have Brown’s ar the district court April Secretary’s provision. decision. gument and have invalidated the Heckler, See Hansen v. 783 F.2d 170 argues step two appeal, Brown Heckler, Cir.1986); Baeder v. ap- as Heckler, Cir.1985); Yuckert v. (3d Secretary, the So- plied by the contravenes (9th Cir.1985). (Act). These also states Cir Security Act cial necessary remand would be even that a reasoned that on cuits have valid, Secretary’s since the step two were They point face conflicts with thе ‍​​​‌​‌​​​​​​‌‌‌‌​​‌​​‌‌‌​​​‌​​‌​‌‌​‌​‌‌‌‌​​‌​‌‌‌‍Act. sup- was not of no provision explicitly out that while the re by evidence. For ported quires the the claim below, we reverse reasons discussed education, age, ant’s and work expressly requires those factors to thе Act DISCUSSION determining taken into account when 174; disability.4 validity of the sec- questions the 551; Yuckert, Baeder, pro- 768 F.2d at 416.920, your virtually current a decision based on work make activity 404.1520 and §§ 2. 20 C.F.R. alone, you five-step on medical facts provisions, outlinе the se- or identical quential impairment(s), process the Secre- we then review used have a severe determining disability capacity tary your and the residual functional you se- and mental demands of the work They provide: yоu curity do this income benefits. If can still have done in you are not working will find that (b) working. you kind of we you are If are If doing disabled. you is substantial work are and the you (f) prevent you impairments) activity, Your will find that are not we (1) you doing cannot work. If regardless your condition other disabled from past you experience. done in the work your and work or impairment(s) (c) impairment. you we If have a severe have a severe cause You must capaci- your functional any impairment combina- residual you or will consider do not have ty your limits impairments which tion your physical you experience can do other work. do basic to see if or cannot, you you you will find disabled. If we we will find that are, thеrefore, impairment and have a held that the Circuit has 3. The Seventh your will not consider disabled. We not education, invalid, insofar as the at least However, experience. and work deny who are applies to claimants it to period you of disabili- possible to have a is ty previous work. See perform their unable though you even for a time in Bunch impairment. have a severe F.2d 1202 Johnson (d) impairments) your meets When Appendix If I. equals a listed impairment(s) meets the you have an 423(d)(2)(A) provides that U.S.C. 4. 42 Appen- requirement and is listed duration * * determined to shall be impairment(s), an individual equal to a listed 1 or is dix only physical men- if his considering under you without find disabled will your impairments of such impairment or tаl severity only his to do unable he is you (e) prevent impairments) must Your cannot, considering his previous but doing If we cannot past relevant work. screening deny device a claimant with The five other Circuits that question they refused to so minimаl that could considered have inter no circumstances have a serious minimis, require work,” Hansen, threshold preted it as a on the pact Stone ment. See the Secretary has not done Baeder, (“a Salmi full so. See *3 Serviсes, 774 tary Health percent disability applicants forty (6th Cir.1985); 685, v. 691 Evans any benefits without evaluation of 1012, 1014 education their relevant work Brady v. Hansen, 175- experience”); Schweiker, Chico The facts in this case illustrate the (2d Cir.1983). the Under Secretary actually ap- in the manner which approach, impairment can de minimis “[a]n The plies Secretary the standard. only if it is a as not be considered severe that did not have a severe found abnormality a mini- slight which has such the impairment it would on the individual that mal effect step, despite that Brown suf- the indi- expected not to interfere with arthritis, early degenerative ear- fers work, ability irrespective to vidual’s pulmonary ly chronic obstructive experience.” Brady, impairments. and ‍​​​‌​‌​​​​​​‌‌‌‌​​‌​​‌‌‌​​​‌​​‌​‌‌​‌​‌‌‌‌​​‌​‌‌‌‍(quoting Appeals Council Therefore, only practical way the to ensure Ex- Sequential Evaluation Under Review Secretary require- the follows the Regulations (1980)). panded Vocational Act is mеnts of the to invalidate the second step.5 the Regardless of whether step accept a de minimis it as the fact In view of that this case necessary; requirement, remand a would be for a consideration of Brown’s remanded clearly that Brown’s the record shows ability of her vocational to work least, very meet a pairments, at the would impairments, as well as her characteristics though we requirement. de Even minimis following the additional observa- we make importance question, its could avoid duty develop has a to tions. recurring nature us that convince record, regardless fair of wheth- a full and appropriate.

prompt settlement represented by not the сlaimant is er or which counsel. See Brissette believe those Circuits We (8th Cir.1984). In this a the the F.2d invalidated fully complete record discuss argument. Although the second would stronger relationship history, the the Act if the Brown’s work step might be consistent with automobile accidents and her applied preliminary tween her “as a lip pay dard, de minimis stan- mere service to the forcing pursue to a other kind thus a claimant ** economy *. in the national judicial appeal whiсh exists to a determi- obtain applicable properly the made under nation arguments point Circuit's on this 5. The Tenth imposes unnecessary We believe this law. persuasive: particularly were claimants, judicial hardship on wаstes re- best to reme- therefore consider how We must sources, injustice on a serious works Secretary’s apparent continuing dy intent legitimate claims to whose those severity regulation a apply two improperly denied administra- benefits are the Act and that conflicts with manner appeal. tively who controlling to follow case law. We decline (citations omitted). regula- which construed those courts additionally interpreting the sec- nоte that We embody standard and minimis tion to arguably requirement as a de minimis deter- and remanded have reversed worthless, hard accept would be clearly as it renders it which minations apply slight Unfortunately, is so this construction. of an conceive history disregarding those Secretary controlling has not affect a claimant’s it would rulings with which she circumstances. Secretary displays agrees. intent an] [The disabilities, step really says is that if the her blackouts. particulаrly regard record in also limit his or her to do basic work Engebret- Bery of Dr. then the claimant is not disabled. sen, physician, as being merely I do not read this as a de Brissette, F.2d at quired by requirement, minimis nor do I believe it is Schweiker,

Lewis with the conflict Aсt. apparent: this is The need for Rather, being entirely I see it as consistent reported that Brown although Engebretsen purpose with is to degenerative arthritis” and “severe had persons compensate who cannot ‍​​​‌​‌​​​​​​‌‌‌‌​​‌​​‌‌‌​​​‌​​‌​‌‌​‌​‌‌‌‌​​‌​‌‌‌‍diseаse',” “chronic obstructive denying the while Act to no Secretary found that Brown had claimants who can. The factors remand, the Sec- give considera retary should also careful account, appropriately enсe are taken into complaints. *4 subjective See tion to Brown’s me, in the fifth it seems Heckler, 751 F.2d e.g., Polaski v. sequential evaluation which comes (8th Layton play into once has deter- Ragsdale mined that because of or mental Health, Department Education tary, problems the claimant cannot do Welfare, 623 F.2d Cir. work he or she has done in the In- Secretary may Before the deed, step, if invalidate the then evidence, she must subjective Brown’s logically should we also invalidate the third credibility findings. Ba express See make (subsection (c)), ante at 2-3 n. see singer v. like the second excludes considera- Cir.1984). Finally, age, edu- tion of the factors of disabling any psycho- effect cоnsider cation, may impairments that Brown physiological case, it, as I see problem this Weinberger, 514 F.2d Klug have.6 See analysis, sequential not the but the Secre- adequate an record tary’s failure to summary, we hold that In all the evidence that should and to consider process is sequential proper step two determi- be considered a to re- and remand to invalid the claimant has a se- nation of whether in ac- consider According- made. impаirment is to be vere this cord with ly, I in the decision to remand concur case, respectfully I dissent from the physical and mental holding that the second Court’s un- process is invalid Judge, concurring in Security Act. der part. dissenting in part and Secrеtary has not devel- agree I record in this

oped a full and fair

therefore, set particular reasons for ‍​​​‌​‌​​​​​​‌‌‌‌​​‌​​‌‌‌​​​‌​​‌​‌‌​‌​‌‌‌‌​​‌​‌‌‌‍the Court, join I ante at by the

forth remanding to the Sec- the case

the decision no rea- I see

retary for reconsideration.

son, however, step to hold the second All process invalid. sufficiently impairment, if may 404.1520. Such Psychophysiologicаl § them- severe, may claimant to entitle a disabled under the render a claimant selves of vocational consideration "disability” disabled without which defines P, App. Subpart mental, 20 C.F.R. Part impair- See physical, factors. as well as terms 423(d)(1); 12.04. § C.F.R. 42 U.S.C. ments.