¹ 42 U.S.C. § 423(d)(2)(A) (1976).

² A claimant may be adjudged disabled “only if his physical or mental… 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 … .” Id.

³ As used in this Comment, “suitability” is a determination dependent upon the claimant's individual characteristics. A job is suitable when the claimant's characteristics permit performance.

⁴ See infra note 38 and accompanying text.

⁵ 20 C.F.R. §§ 404.1501-.1599 and apps. 1 & 2 (1983).

⁶ Through the use of a matrix incorporating the variables used in the statute, the grid determines conclusively whether a claimant is disabled within the meaning of the Social Security Act. 20 C.F.R. § 404 app. 2 § 200.00(a). See generally R., CASS & C., DIVER ADMINISTRATIVE LAW: CASES AND MATERIALS 292–301 (1982).Google Scholar

⁷ 20 C.F.R. § 404 app. 2 § 200.00(a). The Act does not recognize degrees of disability. It requires a conclusion of either disabled or not disabled. See 42 U.S.C. § 423(d) (1976).

⁸ See Broz v. Schweiker, 677 F.2d 1351, 1355 (11th Cir. 1982); Santise v. Schweiker, 676 F.2d 925, 930 n.14 (3d Cir. 1982).

⁹ See infra notes 31-47 and accompanying text.

¹⁰ 665 F.2d 48 (2d Cir. 1981), rev'd and remanded sub nom. Heckler v. Campbell, 103 S. Ct. 1952 (1983).

¹¹ Campbell, 665 F.2d at 53.

¹² 103 S. Ct. 1952 (1983).

¹³ Capowski, Accuracy and Consistency in Categorical Decisionmaking: A Study of Social Security's Medical-Vocational Guidelines, 42 MD. L. REV. 329, 334-35 (1983).Google Scholar

¹⁴ Id. at 331.

¹⁵ Id. at 335.

¹⁶ Id. at 343. The absence of objective external standards renders the concepts of accuracy and consistency elusive.

¹⁷ See J., MASHAW BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY DISABILITY CLAIMS 120 (1983)Google Scholar (“To instruct thousands of deciders to decide millions of claims on the basis of a value matrix with unspecified weights is simply not to be serious about systemic rationality.“).

¹⁸ See Capowski, supra note 13, at 343; R. CASS & C. DIVER, supra note 6, at 291; Bloomfield, Disability Claims Under the Social Security Act: A Practitioner's Guide to Administrative Procedures, 6 CAP. U.L. REV. 371, 387-89 (1977).Google Scholar

¹⁹ See, e.g., SENATE SPECIAL COMM. ON AGING, 97TH CONG., 2D SESS., SOCIAL SECURITY DISABILITY: PAST, PRESENT AND FUTURE 19 (Comm. Print 1982); Capowski, supra note 13, at 343-44; Chassman, & Rolston, Social Security Disability Hearings: A Case Study in Quality Assurance and Due Process, 65 CORNELL L. REV. 801, 806-08 (1980).Google Scholar

²⁰ HOUSE WAYS AND MEANS COMM., SUBCOMM. ON SOCIAL SECURITY, 94TH CONG., 2D SESS., REPORTS OF CONSULTANTS ON ACTUARIAL AND DEFINITIONAL ASPECTS OF SOCIAL SECURITY DISABILITY INSURANCE 5 (Comm. Print 1976) (“More [accurate and consistent] determinations [of disability] could be made by abandoning the pretense of deciding whether each particular individual is able to engage in substantial gainful activity and instead establishing classifications which would describe the situations where there usually would be inability to engage in such activities.“). The grid tracks the language of the Social Security Act, taking into account only the four disability variables identified in the Act. Compare 20 C.F.R. § 404 app. 2 (1983) with 42 U.S.C. § 423(d)(2)(A) (1976).

²¹ For age, for example, the guidelines define three categories: younger person (under age 50), person approaching advanced age (ages 50 through 54), and person of advanced age (age 55 or over). 20 C.F.R. § 404.1563 (1983). For education, five categories are given: illiterate, marginal (6th grade or less), limited (7th grade through 1 lth grade), high school and above, and unable to communicate in English. Id. at § 404.1564. Three values are defined for work experience, and they apply only to significant jobs held within the past 15 years: unskilled, semiskilled, and skilled. Transferability of work skills is also taken into account. Id. at § 404.1568. Residual functional capacity (RFC) is defined as “the maximum degree to which the individual retains the capacity for sustained performance of the physical-mental requirements of jobs.” 20 C.F.R. § 404 app. 2 § 200.00(c) (1983). For residual functional capacity (RFC), the guidelines define four values in terms of maximum sustained work capacity: sedentary work (lifting 10 pounds, carrying light objects), light work (lifting 20 pounds, carrying 10 pounds), medium work (lifting 50 pounds, carrying 25 pounds), and heavy work (lifting 100 pounds, carrying 50 pounds). Id. at §404.1567.

²² As used in this Comment, the term “administrative notice” refers to the process by which an agency, such as the Social Security Administration, makes a single factual determination that is applied to many cases. This “centralized fact-finding” is inappropriate for determining factors unique to individual cases, such as a claimant's characteristics. It is, however, a fair way to streamline the decision-making process where the facts involve broad, national issues such as the availability of jobs suitable to a claimant with given characteristics. See generally K., DAVIS ADMINISTRATIVE LAW TREATISE §§ 15:1-15:18 (2d ed. 1978)Google Scholar.

²³ See 43 Fed. Reg. 55,349, 55,351-52 (1978) (Notice of Proposed Rulemaking).

²⁴ See K. DAVIS, supra note 22, at §§ 15:1, 15:18. The Notice of Proposed Rulemaking made it clear that administrative notice was being taken of the nature and requirements of jobs that exist in the national economy. 43 Fed. Reg. 55,349, 55,352 (1978). Administrative efficiency was an important, albeit implicit, goal of the grid. Capowski, supra note 13, at 347.

²⁵ See 20 C.F.R. § 404.1520(a)-(f) (1983).

²⁶ R., CASS & C., Diver supra note 6, at 297.Google Scholar

²⁷ 20 C.F.R. § 404 app. 2 § 200.00(a) (1983). For example, where a claimant with a fifth grade education was incapable of performing even simple arithmetic, the grid could not be applied because neither the “illiterate” nor the “marginal education” category perfectly matched his characteristics. Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 539-40 (6th Cir. 1982). See also Vega v. Harris, 636 F.2d 900 (2d Cir. 1981) (where claimant could not speak English, ALJ's findings with respect to education held insufficient to support use of the grid).

²⁸ The grid is comprised of 82 rules, arranged in three tables corresponding to three categories of residual functional capacity (sedentary work, light work and medium work). Each rule directs a conclusion of “disabled” or “not disabled” for a unique combination of age, education, work experience and RFC. See 20 C.F.R. § 404 app. 2 §§ 201.00-203.31 (1983). A portion of the grid is reproduced below:

TABLE NO. 2 - RESIDUAL FUNCTIONAL CAPACITY: MAXIMUM SUSTAINED WORK CAPABILITY LIMITED TO LIGHT WORK AS A RESULT OF SEVERE MEDICALLY DETERMINABLE IMPAIRMENT(S).

²⁹ Exertional impairments “manifest [themselves] by limitations in meeting the strength requirements of jobs….” 20 C.F.R. § 404 app. 2 § 200.00(e) (1983). Nonexertional impairments include mental, sensory and skin disorders, postural and manipulative limitations and environmental restrictions. Id. See, e.g., Roberts v. Schweiker, 667 F.2d 1143 (4th Cir. 1981) (dust allergies are nonexertional impairments).

³⁰ See Burnam v. Schweiker, 682 F.2d 456, 457 (3d Cir. 1982) (ALJ erred in using the grid to reach a decision of not disabled without considering the effect of claimant's hearing and visual impairments on the suitability of existing jobs).

³¹ See, e.g., Sherwin v. Secretary of Health & Human Servs., 685 F.2d 1 (1st Cir. 1982) (grid held not arbitrary or capricious with respect to age of data administratively noticed); Santise v. Schweiker, 676 F.2d 925 (3d Cir. 1982) (promulgation of grid did not exceed authority granted Secretary under Social Security Act); Rivers v. Schweiker, 684 F.2d 1144 (5th Cir. 1982) (grid held not to violate due process clause of fifth amendment or opportunity to rebut certain administratively noticed facts guaranteed by Administrative Procedure Act); Kirk v. Secretary of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981) (grid does not create constitutionally impermissible irrebuttable presumptions).

³² Legislative facts, or facts outside the record, may be used by a tribunal when it is engaged in the development of law or policy. Legislative facts are not specific to the immediate parties. Adjudicative facts are unique to the immediate parties; they are those facts to which the law is applied. K., DAVIS supra note 22, at § 15:5.Google Scholar

³³ 670 F.2d 81 (7th Cir. 1982).

³⁴ Id. at 84. Had the claimant in Cummins been one year older, he would have been disabled under Rule 201.09 of the grid, a circumstance dismissed by the court as “to some extent arbitrary but … in the nature of line-drawing.” Id. at 83.

³⁵ Id. at 83.

³⁶ Cf. Frady v. Harris, 646 F.2d 143, 144-45 (4th Cir. 1981) (the grid's administrative notice of suitable jobs limited the scope of the court's review).

³⁷ 677 F.2d 1351 (1 l th Cir. 1982),vacated and remanded sub nom. Heckler v. Broz, 103 S. Ct. 2421 (1983).

³⁸ Id. at 1359-60. The court drew heavily on t he theory of adjudicative fact-finding which distinguishes legislative facts from adjudicative facts by function. See supra note 32. According to the Broz court, determining whether a claimant can perform substantial gainful employment involves two elements: First, it is necessary to decide what capabilities and qualifications the claimant has, namely, residual functional capacity, age, experience, and education. Second, it is necessary to determine whether there are a substantial number of jobs in the national economy that a person with these characteristics can perform. Generally speaking, the first element is a matter of adjudicative fact; the second is not. The first looks to the individual characteristics of the claimant. This is clearly adjudicative. The second element looks to conditions of the national job market. It is concerned with broad sociological data that is not related to the individual parties. It therefore concerns nonadjudicative matters. Broz, 677 F.2d at 1359.

³⁹ Broz, 677 F.2d at 1360.

⁴⁰ Id.; see also 42 Fed. Reg. 55,349, 55,359 (1978).

⁴¹ Broz, 677 F.2d at 1363.

⁴² Cf. Geoffroy v. Secretary of Health & Human Servs., 663 F.2d 315, 319 (1st Cir. 1981) (“had this case presented a more complex medical-vocational record or less specific factual findings, the ALJ's failure to list specific types of jobs might perhaps have led to a different result“).

⁴³ Parker v. Harris, 626 F.2d 225, 233-34 (2d Cir. 1980).

⁴⁴ 647 F.2d 291 (2d Cir. 1981).

⁴⁵ Id. at 297.

⁴⁶ Id. at 299. Decker concerned the Secretary's reliance on job descriptions in the 1965 edition of the Dictionary of Occupational Titles to satisfy her burden.

⁴⁷ Id. at 298.

⁴⁸ Babitsky, The Vocational Expert in Social Security Disability Cases, 15 TRIAL, Jan. 1979, at 44Google Scholar, 45 (quoting Dept. of H.E.W. Soc. Security Admin. Bureau of Hearings and Appeals Form HA-L8 (11/76)).

⁴⁹ See supra notes 37-41 and accompanying text.

⁵⁰ 647 F.2d at 297-98.

⁵¹ 665 F.2d 48 (2d Cir. 1981), rev'd and remanded sub nom. Heckler v. Campbell, 103 S. Ct. 1952 (1983).

⁵² 665 F.2d at 49-50.

⁵³ Id. at 50.

⁵⁴ Id.

⁵⁵ Campbell was not represented by counsel at her hearing before the ALJ. Campbell, 103 S. Ct. at 1961 (Marshall, J., concurring in part and dissenting in part).

⁵⁶ According to Rule 202.10 of the grid, 20 C.F.R. § 404 app. 2 (1983), a claimant is not disabled if capable of light work, closely approaching advanced age (50 through 54), unskilled, and at least literate and able to communicate in English. See supra note 28.

⁵⁷ 665 F.2d at 52-53.

⁵⁸ Campbell v. Secretary of Health & Human Servs., No. CV-81-155 (E.D.N.Y. July 28, 1981), reprinted m Petition for Writ of Certiorari, app. B, Heckler v. Campbell, 103 S. Ct. 1952 (1983).

⁵⁹ Campbell, 665 F.2d at 53.

⁶⁰ Under the Act, the claimant has the initial burden of proving inability to return to past work. The burden then shifts to the Secretary. Campbell had met her initial burden. Id. at 51.

⁶¹ Id.

⁶² Id. “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b) (1983). Campbell's age, education and work experience were not in dispute.

⁶³ Campbell, 665 F.2d at 51-53. See supra notes 43-47 and accompanying text. 64 Campbell, 665 F.2d at 53.

⁶⁵ Schweiker v. Campbell, 457 U.S. 1131 (1982). Several courts had read the Second Circuit's opinion in Campbell as implicitly invalidating the guidelines. See infra note 84 and accompanying text.

⁶⁶ Campbell, 103 S. Ct. at 1953.

⁶⁷ Chief Justice Burger and Justices Brennan, White, Blackmun, Rehnquist, Stevens and O'Connor joined in the opinion. Justice Brennan also filed a concurring opinion. See infra notes 78-79 and accompanying text. Justice Marshall filed an opinion concurring in part and dissenting in part. See infra notes 80-82 and accompanying text.

⁶⁸ Campbell, 103 S. Ct. at 1958.

⁶⁹ Id. at 1956.

⁷⁰ Id. at 1957.

⁷¹ Id.

⁷² Id. at 1957-58. See supra note 22 and accompanying text.

⁷³ Campbell, 103 S. Ct. at 1958 (“The second inquiry requires the Secretary to determine an issue … not unique to each claimant —the types and numbers [sic] of jobs that exist in the national economy. This type of general factual issue may be resolved as fairly through rulemaking as by introducing … testimony … at each disability hearing.“).

⁷⁴ Campbell, 103 S. Ct. at 1958. Although the Second Circuit had not discussed the fifth amendment or the Social Security regulations in this context, Campbell identified these as underlying the specificity requirement. Brief for Respondent at 10-13, Heckler v. Campbell, 103 S. Ct. 1952 (1983).

⁷⁵ Campbell, 103 S. Ct. at 1956.

⁷⁶ The Court's approach to the notice issue raised in Campbell is similar to that of the First Circuit in Torres v. Secretary of Health & Human Servs., 667 F.2d 167 (1st Cir. 1982). See infra note 84

⁷⁷ Campbell, 103 S. Ct. at 1957-58.

⁷⁸ Id. at 1959 (Brennan, J., concurring).

⁷⁹ Id. at 1960.

⁸⁰ Id. at 1960-61 (Marshall, J., concurring in part and dissenting in part).

⁸¹ Id. at 1962.

⁸² For example, Marshall suggested that questions regarding the claimant's ability to function in her daily activities would be essential to resolving the issue of her RFC. Id. at 1961. Brennan criticized the ALJ's inquiry into Campbell's physical limitations. Id. at 1960 n.2 (Brennan, J., concurring) (“At no point did the Administrative Law Judge so much as ask respondent how she did her shopping, or any other question that might have elicited information on the crucial question of how much she could regularly lift.“).

⁸³ Petition for Writ of Certiorari at I, Heckler v. Campbell, 103 S. Ct. 1952 (1983) (“May the Secretary … rely upon published medical-vocational guidelines, rather than individualized proof, to determine whether claimant for disability benefits … is able to perform substantial gainful work?“). The purpose of the grid is to establish the existence of certain types of jobs through rulemaking rather than on a case-by-case basis. This purpose would have been clearer had the question presented not treated the grid as an alternative to individualized fact-finding.

⁸⁴ See supra notes 74-76 and accompanying text. The Court relied upon circuit court decisions which treated the Second Circuit's decision in Campbell similarly. See Campbell, 103 S. Ct. at 1956 n.9. Arguably, these cases misconstrue Campbell. For example, in Torres v. Secretary of Health & Human Servs., 677 F.2d 167, 169 (1st Cir. 1982), the First Circuit suggests that Campbell “emphasizes the value of ‘notice’ in an inappropriate context.” This would be so if the “notice” at issue in Campbell related to legislative facts of which the grid takes notice. If the concern in Campbell was that the claimant have adequate “notice” of adjudicative facts to be determined, then the analysis in Torres is inapposite.

⁸⁵ Campbell, 103 S. Ct. at 1960 (Brennan, J., concurring).

⁸⁶ Id. at 1961 (Marshall, J., concurring in part and dissenting in part).

⁸⁷ Campbell, 665 F.2d at 53.

⁸⁸ See supra text accompanying notes 22-24.

⁸⁹ Campbell, 665 F.2d at 54. See supra notes 63-64 and accompanying text.

⁹⁰ Campbell, 665 F.2d at 53.

⁹¹ The grid had been widely accepted among the circuits. See supra note 31. Questions that persisted related not to the validity of the grid, but to the procedural requirements that could be imposed in cases relying upon it. See supra notes 33-47 and accompanying text.

⁹² Campbell, 665 F.2d at 53.

⁹³ Brief for Respondent at 8.

⁹⁴ Campbell, 665 F.2d at 54.

⁹⁵ See supra note 20 and accompanying text. The impact of the grid cannot be ascertained, because of a number of externalities such as administration of the early stages of the claims process by state agencies. See, e.g., SENATE SPECIAL COMM. ON AGING, supra note 19, at 7-12.

⁹⁶ J. MASHAW, supra note 17, at 18.

⁹⁷ See Capowski, supra note 13, at 358 (“Consistency can be hampered further by factfinders who disagree with the disability determinations required by the varying vocational factors found in the ‘grid’ and manipulate the functional capacity findings to achieve results with which they agree.“). Ms. Campbell's case illustrates this danger. On remand, a second ALJ found her to be “ ‘an obese, sad individual, who had marked difficulties in sitting, standing, and walking,’ and he found that her back disorder was ‘complicated by a severe emotional overlay.'” Campbell, 103 S. Ct. at 1960 n.3 (Brennan, J., concurring) (quoting Brief for Respondent, app. at 3a). This ALJ found Campbell disabled. Brief for Respondent at 39.

⁹⁸ See supra note 21.

⁹⁹ Experts disagree as to whether use of the grid results in any time savings. See, e.g., Capowski, supra note 13, at 332-33 n.12.

¹⁰⁰ Id. at 347.

¹⁰¹ Campbell, 665 F.2d at 54.

¹⁰² See J., MASHAW supra note 17, at 81–88Google Scholar; Commentary, Adjudication Process Under U.S. Social Security Disability Law: Observations and Recommendations, 32 AD. L. REV. 555, 559-66 (1980).Google Scholar