Heckler v. Campbell

PETITIONER:Heckler
RESPONDENT:Campbell
LOCATION:New Jersey General Assembly

DOCKET NO.: 81-1983
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 461 US 458 (1983)
ARGUED: Feb 28, 1983
DECIDED: May 16, 1983

ADVOCATES:
John H. Garvey – on behalf of the Petitioner
Ruben Nazario – on behalf of the Respondent

Facts of the case

Question

Audio Transcription for Oral Argument – February 28, 1983 in Heckler v. Campbell

Warren E. Burger:

We will hear argument first this morning in Schweiker against Campbell.

Mr. Garvey, you may proceed whenever you are ready.

John H. Garvey:

Mr. Chief Justice, may it please the Court, the issue in this case is the validity of regulations governing claims under the Social Security Act for disability in cases that can’t be decided on the basis of medical evidence alone.

In 1979, the respondent who was then 51 years old applied for disability benefits under Title II claiming a back problem and high blood pressure.

Warren E. Burger:

Total impairment?

John H. Garvey:

I believe so.

She had been born in Panama where she was educated through the sixth grade, and moved to the United States in 1964.

Between that time and the time of filing her claim, she had worked as a maid in a hotel and as a seamstress and had injured her back moving a laundry truck.

Her claim was denied initially and on reconsideration by the State agency, and she then requested a hearing before an Administrative Law Judge.

The Administrative Law Judge took evidence on her medical claims, on her back impairment and her other claims, and concluded that she was capable of doing light work as that term is defined in the regulations which are at issue in this case.

The Administrative Law Judge also took evidence on respondent’s age and education, and on her work experience and training, and after consulting the guidelines in Appendix 2 of the regulations, concluded that she was not disabled.

The respondent then sought review in the District Court which upheld the Secretary’s determinations and respondent then appealed to the Second Circuit which reversed.

The Second Circuit held that in cases which can’t be decided on the basis of medical evidence alone where the claimant is incapable of doing her prior work, the Secretary is required to show two things in order to find the claimant not disabled.

The first thing the court said the Secretary must demonstrate is what the claimant can do, that is to say, what kinds of physical activities like lifting and walking, and what sort of skills she may have acquired in her past work.

With respect to that issue, the Court of Appeals concluded that the Secretary’s determination that respondent was capable of doing light work was supported by substantial evidence.

The Court of Appeals said that the Secretary must also introduce evidence on a second question.

The Court said that the Secretary must show what kinds of jobs are available for a person who is capable of doing what the claimant is capable of doing.

Sandra Day O’Connor:

Mr. Garvey, do you interpret the Court of Appeals’ decision as perhaps being based on some kind of due process, lack of notice requirement?

John H. Garvey:

I find it difficult to understand the Court of Appeals as having said that, because it made no mention of the due process clause.

Respondent contends that the Court of Appeals was concerned about giving notice to claimants of the issues which are at stake in disability hearings.

The Secretary understands the Court of Appeals to have done something more radical than that.

Sandra Day O’Connor:

Short of a due process requirement of notice, what other requirement would there be?

John H. Garvey:

What other requirement might the Court–

Sandra Day O’Connor:

For notice.

John H. Garvey:

–There is also a statutory–

Sandra Day O’Connor:

–as far as this Court is concerned?

John H. Garvey:

–There is a statutory requirement of notice in Section 205(b) of the Social Security Act that provides that the Secretary must give notice and reasonable opportunity for a hearing, and the Secretary has in fact implemented that notice requirement by regulations, and there are a couple in particular.

In 20 CFR 404.938, the Secretary has provided that notice of a hearing will be mailed or served at least ten days before the hearing.

It will contain a statement of the specific issues to be decided and tell you that you may designate a person to represent you during the proceedings.

The regulations then go on to provide that once the hearing has begun, the Administrative Law Judge may consider a new issue at the hearing, that is to say, an issue not raised at the initial or reconsideration stage.

William H. Rehnquist:

Mr. Garvey, the Court of Appeals didn’t mention that section that you have just quoted at all.

John H. Garvey:

No, it did not.

William H. Rehnquist:

As I understand it, we have a statute here and we have regulations issued pursuant to the Secretary’s authority under 405(a), and the Court of Appeals could decide against the Secretary in this case only if it either decided that the regulation wasn’t authorized by the statute or that the statute had some sort of constitutional infirmity in it.

John H. Garvey:

That is the Secretary’s contention in this case, that is correct.

William H. Rehnquist:

What do you understand to have been the reasoning of the Court of Appeals, if it had any?

John H. Garvey:

As I understand the Court of Appeals, what it was concerned about was that, the Secretary had not complied with the procedures which the Courts had used to interpret the statutory term before these regulations had been passed.

Before the regulations were enacted, at disability hearings, the statute provided that where the case can’t be decided on the basis of medical evidence alone, the Secretary was required to consider, under Section 223, the claimant’s age, education, and work experience.

That job of considering those vocational factors, along with the claimant’s medical impairment, in order to decide what kinds of jobs are available for the claimant, had been performed largely with the assistance of vocational experts.

These were people who were rehabilitation counsellors or directors of employment agencies, and under contract with the Social Security Administration.

They would take the stand, after all of the evidence about the claimant’s medical factors and vocational characteristics had been taken, and would be asked hypothetical questions by the Administrative Law Judge about what sorts of jobs would be available for such a claimant if the Court determined that he was able of doing light work.

The Court of Appeals, as I understand it, said in this case that the Secretary was required to continue to do that in order to give the claimant an opportunity to dispute the suitability and the availability of the jobs that were noticed.

I think the Court’s decision is very much like, in fact I think it is identical to claims raised under 405(g) decided by the First, Third, Fifth, Seventh, and 11th Circuits.

In each of those cases, what the claimant contended was that the Secretary’s decision wasn’t supported by substantial evidence if the Secretary didn’t put on evidence about what kinds of jobs were out there that were suitable for a claimant of this sort.

Sandra Day O’Connor:

Is this a substantial evidence case for us, then?

Your cert petition treats it as though the Court had invalidated the grid system in some kind of regulations promulgated by the Secretary, and yet the Court didn’t expressly do that.

Are you telling us, then, that it really is a case of sufficiency of the evidence?

John H. Garvey:

No, it is not.

You will notice in the Court of Appeals’ opinion that at page 7-A it says, on the question of what this claimant can do, the record as a whole supports the Administrative Law Judge’s finding that Ms. Campbell had the residual functional capacity to perform light work.

Then the Court goes on to say that there is a second question which must be decided, that is to say, what kinds of jobs are out there and what their demands are.

With respect to that, the Court said the Secretary’s decision was not supported by substantial evidence because he had not introduced any evidence on that question.

But what the Secretary contends in this Court is that it is unnecessary for him to introduce any evidence on that question because the issue has already been resolved by the regulations.

Sandra Day O’Connor:

Maybe you are arguing that the grid system is evidence.

John H. Garvey:

But it is evidence only in the sense in which any kind of regulation is evidence.

What the tables and the guidelines actually do is to make unnecessary the introduction of evidence on what kinds of jobs.

William H. Rehnquist:

It really dispenses with the need for this sort of a proof that the Court of Appeals thought was required.

John H. Garvey:

That is correct.

What the Secretary concluded was that those issues are really legislative facts most appropriately determined in the course of rulemaking proceedings.

I might add that that conclusion corresponds to what this Court said in Matthews against Eldridge.

What the Court there said was, resolution of the inquiry as to the types of employment opportunities that exist in the national economy for a physically impaired worker with a particular set of skills would not necessarily be advanced by an evidentiary hearing.

Then the Court went on to quote a passage from Professor Davis’s treatise dealing with legislative facts.

John H. Garvey:

Then the Court concluded that the statistical information relevant to this judgment is more amenable to written than to oral presentation.

Warren E. Burger:

At the top of page 9-A of the opinion, is it possible that that material where the Court refers to the fact that before and after these guidelines that the Court of Appeals had had some pretty specific notions as to what the standard should be.

Does that suggest that they perhaps are not giving enough weight to the guidelines?

John H. Garvey:

I think that is exactly correct.

At the top of 9-A what the Court says is that in future cases, in past… before and after adoption of the guidelines, this Court has required the Secretary to identify specific alternative occupations, supported by 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.

The Court then goes on to say that in the past this has been done largely through the use of vocational testimony.

Then the Court says at the top of page 10-A that if the Secretary is going to dispense with the use of vocational experts, what he has got to do is provide a similar degree of specificity, and concludes

“the key consideration in the administrative proceeding must be that the claimant be given adequate opportunity to challenge the suitability or availability of the jobs noted. “

If the secretary is in fact required to do that, then the regulations are effectively useless.

Warren E. Burger:

Is there anything in the regulations that deals with the burden of proof and this possible shifting of the burden of proof here?

John H. Garvey:

What the regulations say is that in cases which are specifically described by the guidelines, by the tables in Appendix 2, that under those circumstances, if the findings of fact are the same as the rule, we use that rule to decide whether a person is disabled.

On the question of burden of proof, with respect to the suitability or availability of jobs for people who meet the requirements in the tables, the question of burden of proof is irrelevant for the same reason the substantial evidence question is irrelevant, because that issue about whether such jobs are available is no longer litigated in these proceedings, it has been decided by rulemaking.

I should add that with respect to all of the facts that are unique to any given claimant, with respect to that claimant’s medical condition, physical impairments, mental impairments, the claimant’s age, what kind of training the claimant has, what kind of education she has got, what work she has done in the past, on all of those questions, once the disability inquiry reaches the last stage, the Secretary still maintains or still shoulders the burden of proof showing that the claimant is capable of engaging in activity, all of that notwithstanding, and the regulations specifically provide that all of those issues are open to rebuttal at the hearing.

It might be useful for me just to describe briefly the reason for adopting these regulations and say a few words about the way they work, and then say a little bit more about what it was that the Secretary believes the Court of Appeals decided.

Until 1978, before these regulations were adopted, indeed today, most disability cases can be decided on the basis of medical evidence alone.

It will either show that the claimant is so impaired that she is unable to do any work regardless of what her vocational characteristics are, or it will show that the claimant’s impairment is not sufficiently severe to warrant further inquiry.

In cases which can’t be decided simply on the basis of medical evidence, the promulgation of the regulations was designed to displace the use of vocational experts at hearings in determining the question of what kinds of jobs were available and suitable for claimants who are described by the regulations.

The general theme of the regulations is this: For claimants whose impairments are not sufficiently severe to warrant the conclusion of the question right there, among people who have similar impairments, what the regulations do is to say that the older you are, the more likely it is that you will be impaired, that you will be disabled.

Or, the less education you have, or the less training you have, for people who have similar impairments, the ones who are less educated, less well-trained, have no skills, it is those people who have an easier time proving disability under the regulations which are at stake in this case.

What the tables… At the conclusion in Appendix 2, what those tables do is to classify jobs according to their gross physical demands.

For example, the table that deals with light work in this case assumes that people who are able to do light work are able to undertake such activities as carrying more than ten pounds frequently, and occasionally 20 pounds, that they are able to do a good deal of walking or standing or, if the job involves sitting, they are able to do such things as pushing or pulling of arm and leg controls.

For people whose impairment is only of that sort, only in the kinds of gross physical demands of which the tables take notice, the Secretary has said that for those who are capable of doing light work, that there are some 1600 jobs, different types of occupations in the national economy, which can be performed by people of that sort.

These are simple jobs that anybody can learn to do in less than 30 days.

They are jobs like–

William J. Brennan, Jr.:

Well, suppose one of the things that the tables say is that light work includes the ability to lift up to 20 pounds or 15, whatever it is, may the claimant dispute whether or not he or she in fact may lift up to 15 pounds?

John H. Garvey:

–Indeed.

In fact, the respondent in this case disputed that she was unable to lift 20 pounds on at least two occasions.

At her hearing, she introduced evidence from her doctor, Dr. Lowenthal, on a form which the Social Security Administration has designed to address just that question, the Joint Appendix on page 32.

William J. Brennan, Jr.:

Then what happens, Mr. Garvey?

She testifies,

William J. Brennan, Jr.:

“No, I can’t lift more than ten pounds. “

What then must the ALJ do when the table says that if you are capable of doing light work and must lift up to 15?

Does this necessarily require a determination that no, she can’t do light work?

John H. Garvey:

No, not necessarily.

What happens is what has always happened in these disability cases, the Administrative Law Judge considers her evidence along with the contrary evidence which is introduced–

William J. Brennan, Jr.:

And makes a finding.

John H. Garvey:

–and makes a finding with respect to how many pounds she is able to lift.

Had the Administrative Law Judge in this case concluded that she was not capable of lifting that weight, then he wouldn’t have been able to apply Table 2.

He would have been required, at a minimum, to apply Table 1 which would have determined that she was disabled in this case.

William J. Brennan, Jr.:

Of course, in advance of the hearing, does she get any kind of notice to indicate that one of the issues will be whether she can or cannot lift 15 pounds?

John H. Garvey:

The notice which she gets in advance of the hearing appears in the administrative record, and it says that

“the issues at your hearing will be how severe your impairment is. “

“The impairment must be so severe as to prevent you from not only not engaging in your usual work, but considering your age, education and work experience, prevent you from engaging in any other kind of substantial gainful work. “

William J. Brennan, Jr.:

Does she get a copy of the guidelines at all?

John H. Garvey:

She does not get a copy of the guidelines.

Claimants do get a copy–

William J. Brennan, Jr.:

Excuse me, Mr. Garvey.

If she doesn’t get a copy of the guidelines, how does she know the issue of whether she can lift 15 pounds or not will arise at the hearing?

John H. Garvey:

–She is told that the guidelines will apply.

William J. Brennan, Jr.:

How does she get access to the guidelines?

John H. Garvey:

The guidelines are available at Social Security Administration Branch offices.

She is also told at the beginning of the hearing, as she was in this case by the ALJ, that the issue will be how much… the issue will be your ability to stand, sit, lift, walk, carry, and similar facts of that sort.

On page 37 of the Joint Appendix, the Administrative Law Judge said:

“What we are interested in is your capacity to engage in sedentary light, medium, or heavy work. “

“What we’re taking into account is your ability to walk, stand, sit, lift, push, pull, carry– “

William J. Brennan, Jr.:

Now I gather she is entitled to assistance with a counsel, is she not, if she wants to bring someone?

John H. Garvey:

–Yes, she is.

William J. Brennan, Jr.:

But if she does not bring someone, none is provided for her?

John H. Garvey:

That’s correct, although it is important to emphasize that the Administrative Law Judge at these hearings does not represent the Secretary.

The Administrative Law Judge is charged under the regulations with fully bringing out both the claimant’s side of the case and the Secretary’s side of the case.

John H. Garvey:

We think that the transcript of the hearing in this case in fact demonstrates the Administrative Law Judge questioned the respondent on each of these characteristics which are made relevant by the tables.

Thurgood Marshall:

Mr. Garvey, I still am not certain.

When is she told about 15 pounds?

John H. Garvey:

She is not specifically told in any of the notices which are mailed to her that the question will be whether she can lift 15 pounds.

Thurgood Marshall:

My question is, when is she told, ever?

John H. Garvey:

She can be told at the hearing, in fact, it is quite proper–

Thurgood Marshall:

When was this particular party told that she is going to be measured by whether or not she can lift 15 pounds?

John H. Garvey:

–She was not told that she would be measured at any time.

Thurgood Marshall:

She was never told?

John H. Garvey:

No.

She was told that she would be measured by how much she could lift, whether she could lift weight, and she testified that she was unable to lift anything.

She introduced a form which her doctor had given her saying that she was unable to lift more than ten pounds.

So it is not a question of her having been unable to meet the evidence.

As you stress, it’s appropriate, in fact perhaps desirable, for the Administrative Law Judge to bring to the claimant’s attention that the question at disability hearings is what you can lift, what you can carry, how far you can walk, how long you can stand.

The Office of Hearings and Appeals has designed, in the training of Administrative Law Judges, and has circulated a kind of manual which tells them how they ought to conduct these hearings.

The statements that are made by the Administrative Law Judge at the beginning of this hearing on pages 36, 37, 38, and 39, are taken almost verbatim from those instructions to Administrative Law Judges about how to conduct the hearing, about what to tell the claimant.

The Administrative Law Judge in this case, as the manual provided, said that

“What we are concerned about is not only whether you can do your own job, but whether you can do other jobs. “

“In deciding that, what we want to know is what your age is, what education you have, what work experience you’ve got. “

He then goes to say, we are also going to ask whether you can do sedentary or light or medium work.

In deciding that question, what we want to know is your ability to walk, stand, sit, lift, push, pull or carry.

He told her all of those things at the beginning of her hearing.

John Paul Stevens:

May I ask you a question?

Maybe it is unrealistic with 1600 jobs that are available for this physical impairment, but supposing she was familiar with the regulation and she wanted to prove that all the jobs in the category required some skill, such as speaking English, or reading, or something that she did not have, and therefore, she couldn’t perform any of them.

Assume she was successful in that kind of proof for some reason other reason other than physical impairment, would she then prevail?

John H. Garvey:

What she would then have succeeded in proving was that that was the wrong table to apply to her, or that for some reason the tables didn’t apply.

In cases where the claimant is unable to perform these kinds of jobs because she can’t see or because she has difficulty hearing, or because she has some problem with fine motor skills, arthritis in the fingers, for example, or she’s got epilepsy, or she’s got an allergy to dust and is unable to work outdoors, in those kinds of cases the tables do not apply.

In those kinds of cases the regulations specifically say, if you look at Section 200(e) of Appendix 2 which appears on page 56-A, Section 200(e)(1) says, in the evaluation of disability, where the individual has solely a non-exertional type of impairment… that is sight, hearing, fine motor skills… the rules do not direct factual conclusions of disabled or not disabled.

So all of the evidence which you mention would be perfectly appropriate, and indeed that sort of question is asked by the Administrative Law Judge before first deciding whether the tables can be applied at all.

John Paul Stevens:

I am still not clear what happens if she proves that even though he has correctly described her physical condition, she can’t perform any of the 1600 jobs.

John Paul Stevens:

What happens in the proceeding?

Does she win?

John H. Garvey:

I would suppose so.

I presume that in that case what she would have proved is that the kinds of occupations of which the Secretary took notice in the rulemaking proceeding don’t in fact exist.

What she would have proved is that the regulations are arbitrary and capricious in that case, but there is no–

John Paul Stevens:

I wouldn’t necessarily think that they would be arbitrary and capricious in all cases, it is just that she has some particular incapacity for… Of course, I admit, it is a hard case to assume, with 1600 jobs, presumably she ought to be able to perform some of them.

But I suppose and the Second Circuit’s view is, they could forestall that by telling her… the ALJ merely has to tell her, here are 10 or 15 jobs that under the schedule you can perform, and give her a chance to prove otherwise.

John H. Garvey:

–I should emphasize again–

John Paul Stevens:

If I understand you view, there are cases in which the regulations, at least theoretically, might not be dispositive if she–

John H. Garvey:

–Absolutely, there are many such cases.

There are many such cases.

John Paul Stevens:

–So is it correct that one could interpret the Second Circuit as holding, as just imposing a requirement on the hearing officer to be sure that this isn’t one of those cases.

To give the claimant an opportunity to say,

“Well, here is a representative group of 1600 jobs. “

“Is there any reason why you can’t perform these jobs? “

Is that all that the Second Circuit requires?

John H. Garvey:

I don’t believe so, because the Second Circuit continually said that what the Secretary had failed to do was to introduce evidence about these kinds of jobs to show (a) that they were available and (b) that they were suitable for somebody who, the Second Circuit had already said, was capable of doing light work.

John Paul Stevens:

If one were to construe the Second Circuit opinion in the way I suggested it might be read, how big a problem would it be for the Secretary?

Are there many cases like this one in the Second Circuit?

John H. Garvey:

There are many cases in which the tables cannot be applied because the claimant has some other disability which doesn’t fit within the description of light work.

John Paul Stevens:

That is true regardless of whether you follow the Second Circuit or not.

John H. Garvey:

That is correct.

It doesn’t seem as though it would be a great burden, but the problem with construing it as simply a kind of notice as respondent was due in this case, is that it focuses on what is absolutely the most esoteric point about the whole disability determination process.

If you tell somebody, who has been a seamstress or a hotel maid most of her life, that she is capable of operating a pinking machine or cutting newspaper clippings for a business service, it really tells her very little that she is interested in knowing.

It tells her very little about the issues in the disability hearing.

John Paul Stevens:

But it does tell her more than handing her a card with 1600 jobs on it, doesn’t it?

John H. Garvey:

Certainly, although it tells them–

What the Secretary is really interested in in this case is not whether she is capable of operating a pinking machine, but whether she is capable of doing… what her impairments are.

How much is she capable of lifting, carrying, how far she can walk or stand, and whether she has any other kinds of physical impairments, what her age and education are.

With respect to those questions, the mere mention of jobs like operating a pinking machine tells you very little.

John H. Garvey:

If there are no further questions, I would like to reserve the remainder of my time for rebuttal.

Warren E. Burger:

Mr. Nazario, you may proceed whenever you are ready.

Ruben Nazario:

Mr. Chief Justice, and may it please the Court, the issue presented by this case is not whether the Secretary has the authority to promulgate regulations to determine disability.

The issue in this case is whether the Secretary’s failure to give an unrepresented and uneducated claimant notice of the medical and vocational factors which he has to determine prior to applying the grid violated the claimant’s procedural rights to a full and fair hearing.

William H. Rehnquist:

What is the source of those procedural rights, Mr. Nazario?

Ruben Nazario:

First of all, Your Honor, the claimant has the right under the regulations to present all the evidence relevant to her case.

The claimant has the right under the statute to present all her relevant evidence and the statute imposes on the Secretary the requirement that he base his decisions on evidence adduced at the hearing.

But more importantly, this right is premised on the Secretary’s own regulations which require the ALJ, especially where the claimant is not represented, to help the claimant present her case to–

William H. Rehnquist:

Did the Court of Appeals cite each of those regulations or statutory provisions that you have just mentioned?

Ruben Nazario:

–No, Your Honor.

The Court of Appeals just made reference to the… in general to the claimant’s right to present evidence at the hearing.

Precisely the holding of the Court of Appeals was that the claimant was not given the chance to present the relevant evidence in this case.

They did not cite the authority for the holding, but the holding is clearly that the claimant did not have the right to present her case because the Secretary failed to give her notice of the issues.

The Second Circuit clearly did not evaluate the medical and vocational regulations.

All the Circuit did was a factual determination that Mrs. Campbell did not have this fair opportunity to present this case which is given to her by the statute, and which the Secretary–

Sandra Day O’Connor:

Are the regulations which you’re relying on contained here in the petition or the appendix or something, and if so where?

Ruben Nazario:

–I believe the specific regulation is cited in our brief, and it is cited also in the Secretary’s brief.

It is the regulation which imposes on the Secretary, or rather on the ALJ the duty to look fully into all the matters at issue in order to take the testimony of the claimant, to make the relevant questions to the claimant.

This regulation has been interpreted by most Courts–

Sandra Day O’Connor:

Which regulation is it, and is it set forth any place in the papers that we have before us?

Ruben Nazario:

–Yes, Your Honor, it is.

0….

Sandra Day O’Connor:

Don’t let me interrupt your argument.

Ruben Nazario:

The regulation appears at 30 CFR 44.944.

William J. Brennan, Jr.:

Where are they in your briefs, what page?

Ruben Nazario:

We discuss that regulation on page 11 of our brief, the second paragraph there.

The case law, in fact, imposes on an ALJ a duty to go beyond the classic prehearing notice.

It imposes on the ALJ the duty to make sure that the claimant present all the relevant evidence in disability hearings.

It was precisely this opportunity which was denied to Mrs. Campbell.

The Secretary, through Mr. Garvey, has emphasized to this Court that the medical and vocational regulations should not come into play until the claimant has had a full opportunity to testify about the issues which they leave open for litigation.

William J. Brennan, Jr.:

May I ask, Mr. Nazario, are you making any constitutional argument, B of your brief suggests you may.

If you are making a constitutional argument, what is it?

Ruben Nazario:

I say–

William J. Brennan, Jr.:

You say the regulations entitle her to the kind of hearing you say she did not get.

Is your case then premised on a violation by the Secretary of his own regulation; is that it?

Ruben Nazario:

–Yes, Your Honor.

The case is premised on a violation of the Secretary’s regulation.

William J. Brennan, Jr.:

What constitutional violation?

Ruben Nazario:

The constitutional… The right of a claimant to testify at the hearing is premised not only in the Secretary’s regulation, but also in the Social Security statute which requires notice and the right–

William J. Brennan, Jr.:

So this is a statutory and under the regulations.

Ruben Nazario:

–The regulation, and also a constitutional claim because the claimant has a right under the Fifth Amendment, under the due process clause of the Fifth Amendment to introduce all the… to have a full and fair hearing in determining her entitlement to disability benefits.

William J. Brennan, Jr.:

Do we have to reach the constitutional claim, if you are right that the statute and regulations entitled her to something which she didn’t get?

Ruben Nazario:

That is not the issue in the case, Your Honor.

The issue is whether the Secretary complied with all the due process requirements of notice and of full and fair hearing to this specific claimant.

William J. Brennan, Jr.:

You mean due process requirements as expressed in the regulations and the statute?

Ruben Nazario:

Yes, Your Honor.

William H. Rehnquist:

Mr. Nazario, the Court of Appeals in its opinion, as I read it, made no mention of any constitutional claim that you asserted under the Federal Constitution.

Did you raise your constitutional claim before the Court of Appeals?

Ruben Nazario:

Well, Your Honor, the Court of Appeals assumed that Mrs. Campbell had had due process.

They didn’t–

William H. Rehnquist:

I asked you a question.

Did you raise your constitutional claim in your argument to the Court of Appeals?

Ruben Nazario:

–We argued before the Court of Appeals that Mrs. Campbell had not been given adequate notice and an adequate hearing and an adequate opportunity to present her evidence because the ALJ failed to inform her of the–

William H. Rehnquist:

Did you phrase that in terms of a constitutional violation in the Court of Appeals?

Ruben Nazario:

–No, Your Honor, we did not, and the Court of Appeals did not take it in terms of a constitutional violation.

It assumed, without discussion, that Mrs. Campbell was entitled to a hearing, to a full opportunity to present her evidence.

But there is no discussion of the statutory or constitutional basis for this requirement, maybe because it is so clear.

The facts in the record of Mrs. Campbell clearly demonstrate that she did not have the minimum pre-notice which is required by the law.

Mrs. Campbell, as has been stated, has only a sixth-grade education.

She has some difficulties expressing herself in English, and she was misled by the Secretary’s original denial of benefits.

Ruben Nazario:

The Secretary stated that she was not entitled to benefits because she could return to her usual occupation as a maid.

Mrs. Campbell came to the hearing prepared to discuss that issue, and as a matter of fact, she spent most of her efforts at her hearing testifying to why she could not perform the duties required by her former occupations.

At no time did the Secretary tell Mrs. Campbell that he was going to deny benefits based on the rule which required the finding that she could lift over 15 or over 20 pounds and that, therefore, she should address that issue at the hearing.

Mrs. Campbell presented the Secretary with several letters from her doctor which stated that she could not perform… that she could not lift any weight.

The Secretary or the ALJ never made any effort to ascertain what that said and meant by heavy work.

Of course, this finding about the specific number of pounds which Mrs. Campbell could lift was critical.

If she had been found unable to lift over ten pounds, she would have established that she was disabled under the Act.

She was never given the opportunity to present this evidence to the Secretary.

John Paul Stevens:

May I ask you a question here.

Do you read the Second Circuit opinion as holding that if the Administrative Law Judge had, just before he or she ruled, said: Now there are 15 jobs here on this list that people who are capable of doing light work can perform, and under the regulations you can perform these.

If he had just said that to her, so she could have put in evidence that she couldn’t perform those 15 jobs, would that have been all that the ALJ had to do?

Ruben Nazario:

In this particular case.

John Paul Stevens:

This particular case.

Ruben Nazario:

In Mrs. Campbell’s case, we believe so.

If the ALJ had told her examples of the jobs which she was assuming–

John Paul Stevens:

These ten or 15.

Ruben Nazario:

–Under this process, Mrs. Campbell would have probably been able to address the issue at the hearing.

John Paul Stevens:

Supposing that instead of doing that, the ALJ had said: The Secretary has a regulation that lists 1600 jobs that people who can do light work can do.

Here is a copy of that regulation.

Then he let her take an hour to look at it and then if she wanted to, try to prove she couldn’t perform any of those jobs.

Would that have satisfied your position?

Ruben Nazario:

In the case of some claimants it probably would have, but not in the case of this claimant.

John Paul Stevens:

In this case.

Ruben Nazario:

I don’t think that this claimant would have been able to understand the Secretary’s regulations.

Frankly, there is nothing in the record to indicate that Mrs. Campbell was told that she had the right, or that she had the obligation, or that she should–

John Paul Stevens:

What I am really trying to find out.

You seem to agree that if the ALJ had said: Here are 15 jobs that you should be able to perform, if instead of that he had listed or read all 1600–

Ruben Nazario:

–Your Honor, but the problem is that the regulations do not contain a list of the jobs, and that’s the problem.

In order to find out what jobs the Secretary is assuming that a claimant who fits a grid structure can perform, the claimant would have to go to other more difficult and less available sources, such as the Dictionary for Occupational Titles, and several publications of several agencies.

So even if the claimant is told that her claim will be decided under the medical and vocational regulations, and that she should read those regulations, assuming that the claimant can’t understand the regulations and can’t travel to the District Office, the claimant would not know what jobs the Secretary is assuming that she or he can perform.

Ruben Nazario:

Your Honor was absolutely right earlier in this argument when he said that the claimant should be given an opportunity to testify about those factors which limit the grid applicability, and the Secretary stated in his argument that grids come into play only where claimant has limitations in terms of his or her ability to meet strength requirements.

They do not come into play if the claimant has a significant non-exertional limitation.

If the claimant has significant visual or auditory problems, problems in terms of environmental conditions, if inability to tolerate gases, fumes, anything, any limitation that is not measured out in terms of strength would limit the application of the grid to that claimant.

In this case, Mrs. Campbell was not told that she had to testify about these types of limitations because they would be relevant in determining whether the grid was applicable to her.

So that this record, even less the evidence which was necessary for a determination of whether the grid was applicable at all, the determination by the Second Circuit that Mrs. Campbell did not have an meaningful chance to present her evidence because the Secretary had not given her notice, I think is entitled to affirmance.

It is a factual determination that is amply supported in the record of this case.

Warren E. Burger:

–What is the amount of benefit she receives?

Ruben Nazario:

She is currently receiving about only $250 a month.

Warren E. Burger:

Of course, the amount is not relevant to any of the legal issues here, but I was interested in terms of why she appeared at this hearing without any legal assistance.

Ruben Nazario:

I understand she tried to get legal assistance but she was unable to because the private attorneys which she contacted charged a sum which was too high for her means at that time, and she could not get the service of a free legal representative.

The Secretary–

Warren E. Burger:

She later did get services of the Legal Aid, did she not?

Ruben Nazario:

–No, Your Honor, not until she filed the case in the District Court.

William J. Brennan, Jr.:

Was it the Legal Aid who wanted to charge her $35?

Ruben Nazario:

No, Your Honor.

William J. Brennan, Jr.:

That was a private attorney?

Ruben Nazario:

That was a private attorney.

William J. Brennan, Jr.:

I see.

Ruben Nazario:

That is correct, it was a private attorney.

The Secretary argues in this case that Mrs. Campbell had notice because, first of all, the procedures for determining disability under the regulations are spelled out in the regulations, and he claims that this notice by regulation meets the requirements of adequate notice.

William J. Brennan, Jr.:

Is there any procedure under Social Security to which the claimant could go to get instruction on how to present a case like this?

Ruben Nazario:

Not to my knowledge, Your Honor.

The ALJ… The only recourse that the claimant would have is if the ALJ fulfills his duties under the regulations and makes all the relevant questions at the hearing, then the claimant would ideally be informed of what the issues are, but certainly that did not happen in this case.

Sandra Day O’Connor:

Is information available on the procedures and requirements and the regulation at the branch offices of the Social Security?

Ruben Nazario:

I believe that a copy of the CFR… a copy of the regulations would be made available to the claimant if the claimant goes to the office and inquires about it.

Sandra Day O’Connor:

Yes, and presumably there would be staff present to explain.

Ruben Nazario:

That I do not know, Your Honor.

That I do not know.

But nothing in the record of this case indicates that Mrs. Campbell was advised of the availability of those regulations, and nothing in this case indicates that all the claimants are advised of the availability and importance of those regulations.

William H. Rehnquist:

Isn’t she obligated to do a little something for herself, if she is depending on benefits, if she is trying to get benefits?

Ruben Nazario:

Well, Your Honor, in this case I think she did as much as she could, considering that she had a sixth grade education, that she was unrepresented at her hearing, and that she was misled by the Secretary’s initial denial of benefits.

William H. Rehnquist:

You don’t think she could have been expected to go to the district office?

Ruben Nazario:

She did went to the District Office, that’s where she filed the initial claim for benefits, that is where she filed the claim for reconsideration of the original denial, and that is where she filed the request for the hearing.

But when she filed the request for the hearing, she wasn’t informed of the availability of the regulations.

There is nothing in the record to indicate that.

William H. Rehnquist:

But they were available there?

Ruben Nazario:

Presumably they were available, but she was not informed of their availability.

Sandra Day O’Connor:

Mr. Nazario, there is some indication, is there not, that Congress has pressed the Secretary to promulgate a grid system or regulations such as those that are employed here, is there not?

Ruben Nazario:

Yes, Your Honor, there is.

Sandra Day O’Connor:

Basically, the Secretary in promulgating this system is carrying out the wishes of Congress; is that right?

Ruben Nazario:

Yes, Your Honor, that is right.

But what is at issue in this case, again, is not whether the Secretary has the authority to promulgate this regulation.

The issue in this case is whether the regulations were properly applied to Mrs. Campbell.

The issue in this case is whether the Secretary met the requirements in his own regulations, where the Secretary fulfilled his obligation to make sure that the claimant presented all the relevant evidence which is required prior to the application of the medical and vocational regulations.

Sandra Day O’Connor:

The Court of Appeals certainly did not state that the Secretary had failed to apply his own regulation, did it?

Ruben Nazario:

Well, the Court of Appeals did not state that in so many words, but the holding of the Court of Appeals is clear.

It remanded the case of Mrs. Campbell to the Secretary for consideration of her claim after she was adequately informed of what the issues of the hearing were.

The holding of the Court of Appeals is clear in requiring proper application of the medical and vocational regulations.

The Court of Appeals did not discuss at all the issue of the validity of the medical and vocational regulations.

It did not discuss any of the arguments which have been made against the validity of the medical and vocational regulations.

It limited its holding to a factual determination that Mrs. Campbell did not have notice and, therefore, she was unable to present the evidence which was required.

John Paul Stevens:

Mr. Nazario, may I ask another question.

On page 37 of the Joint Appendix there is a transcript of what the ALJ said to her at the beginning of the hearing.

He did say that the evidence about her ability to do other kinds of work, as well as her past work.

He asked about her ability to walk, stand, sit, lift, push, pull or carry.

Then he goes on and says:

“I will take evidence and consider any mental, skin, sensory or environmental impairment that might limit your capacity to work. “

Isn’t that pretty good notice of the fact that any other disability would also be considered?

Why isn’t that notice adequate under the regulations?

Ruben Nazario:

Well, Your Honor, if the ALJ had followed up on this statement, if the ALJ had made the statement while Mrs. Campbell was testifying, then probably Mrs. Campbell would have been able to present her relevant evidence.

Ruben Nazario:

But this statement was made by the ALJ at the beginning of the hearing when he was explaining to Mrs. Campbell all the relevant procedures… all the relevant Social Security procedures.

He explained her appeals right.

He explained her right to be represented.

He explained her right to object to the medical evidence which had been incorporated in the record.

He did not follow up on this statement at the stage of the hearing where Mrs. Campbell was testifying about her capacities.

In fact, if you look further down–

John Paul Stevens:

Are you saying that if he had repeated this statement while she was testifying, then you really wouldn’t have a case?

Ruben Nazario:

–If he had repeated this statement in terms of questions, and if Mrs. Campbell had been therefore able to put in evidence on each of these factors, then Mrs. Campbell would have established that she was disabled under the grid and, of course, she would have had no need to appeal on the Secretary’s decision.

If you look at the record of the transcript where Mrs. Campbell is in fact testifying about her capacities, that is only two pages in the transcript, it appears on page… basically on page 50 and the first half of page 51, she, for example, stated:

“I cannot sit too long. “

“I cannot stand too long. “

That is at the bottom of page 49.

Instead of the ALJ asking her, how long can you sit?

How many pounds can you lift?

because that was critical to the determination of her claim, the ALJ changed the line of her testimony by asking “Can you bend”?

“I cannot bend. “

“The doctor warned me not to lift weights. “

There the ALJ again changes the line of her testimony and says,

“I notice that you have stood up several times. “

Further down the page, she is again testifying about her limitations, and she is saying:

“I cannot raise. “

“I can’t do anything too much. “

The ALJ instead of trying to elicit her testimony with any specificity, which was required for application of the grid, the ALJ again changed around her testimony by asking about her medical treatment.

This record clearly establishes that Mrs. Campbell did not put into the record the evidence which was necessary for the determination of her claim under the grid, and that she did not present her evidence because the Secretary never informed her of what it was that she needed to prove.

I would like to clarify a statement by the Court of Appeals which has been relied on by the Secretary in his papers.

The Secretary says that the finding by the Court of Appeals that there was substantial evidence to support the finding that Mrs. Campbell could perform light work is very important, and in fact shows that Mrs. Campbell was in… that Mrs. Campbell’s ability to work was properly considered by the Secretary.

It should be pointed out that there are two different purposes for judicial review in disability determinations.

One is whether the Secretary’s determination is supported by substantial evidence.

The other one is whether the Secretary followed proper procedures in determining the claimant’s application for benefits.

By saying that considering whatever evidence was already in the record of Mrs. Campbell’s proceeding, the determination that she could perform light work may have found some support, the Secretary was not sanctioning the way in which the ALJ arrived at that determination.

Ruben Nazario:

On several occasions the Second Circuit has remanded cases to the Secretary despite finding the determinations, the specific determination supported by substantial evidence precisely because the claimant was not given an opportunity to introduce contrary evidence.

All that the Second Circuit did in this case was to determine factually that Mrs. Campbell did not have notice and did not have the opportunity to present evidence.

That determination is amply supported by the record of the case, and should be affirmed by this Court.

Furthermore, the determination… the direction to the Secretary that he has to give meaningful and informative knowledge to Mrs. Campbell on the remanded hearing is consistent with the Secretary’s own regulations, with the Secretary’s own argument, and should also be affirmed by this Court.

I thank you very much.

Warren E. Burger:

Do you have anything further, Mr. Garvey?

You have two minutes remaining.

John H. Garvey:

I have a couple of brief points.

The first is with respect to the contention that the respondent had no opportunity to put on evidence regarding her non-exertional impairments.

As Justice Stevens pointed out, at the beginning of the hearing, the ALJ informed respondent that any non-exertional impairments that she might have would be issues in the hearing.

In our reply brief, at pages 11 to 14, in the notes we indicate the passages at which each of those contentions was addressed.

I should add that in those kinds of cases where non-exertional impairments are present, then the question is what kind of work somebody can do.

The tables are not used, as I emphasized before.

What will happen in those kinds of cases most often is that the Secretary will call a vocational expert to see what kind of work is available for people who can do that.

With the respect to the question of her representation by counsel, I might just add a point which does not appear in our brief.

A Senate Finance Committee report, CP-9716, issued just in August of ’82, indicates that, contrary to what Professor Davis thinks, in disability cases, 71 percent of claimants are in fact represented by counsel.

I might add that for those claimants who are not represented by counsel, the notice which they receive in advance of hearing tells them, as they told respondent in this case, that

“The people at your local Social Security Office will continue to assist you in obtaining any evidence you may wish to submit. “

William J. Brennan, Jr.:

What does that mean, Mr. Garvey, as a practical matter?

John H. Garvey:

As a practical matter, what it means is that they may go to the Social Security Office and ask what kinds of evidence will help them to bolster their claim.

William J. Brennan, Jr.:

Are they told about the guidelines?

John H. Garvey:

They are told… If they went to the Social Security Office and inquired about the guidelines, they would be told about the guidelines.

The Secretary does not resist telling claimants about the guidelines.

The respondent in this case was informed by the ALJ that the regulations in Appendix 2 would be applied.

There is a notice… I am sorry, my time has run.

Warren E. Burger:

You may finish your response.

John H. Garvey:

If I may just finish that sentence.

The notice of hearing which appears at the end of the Secretary’s brief, this Form HA-4607, does not appear in respondent’s record as it does not appear in any records.

These kinds of forms which don’t pertain to individual claimants simply are not stuck into the record.

They are sent along with any mailings that the claimant gets, and it informs them that the regulations in Appendix 2 will be applied.

John H. Garvey:

You will notice that the notice of hearing respondent got indicates that there was an enclosure, and it is likely that form.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.