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West's Social Security Reporting Service
1996
Commentary
*1003 SIGNIFICANT WORK RELATED LIMITATION OF FUNCTION UNDER § 12.05C [FNa]
Peter J. Lemoine [FNaa]
Copyright (c) 1996 by West Publishing Company; Peter J. Lemoine
§ 12.05C [FN1] of the adult impairment listings is satisfied where the evidence establishes that the claimant
has a significantly subaverage general intellect with deficiencies in adaptive behavior appearing prior to age 22,
documented by “[a] valid verbal, performance, or full scale I.Q. of 60 through 70 and a physical or other mental
impairment imposing additional and significant work-related limitation of function.” Because § 12.05C is one of
the most frequently considered listing sections in social security disability cases, it is a matter of much concern
to this writer that there exists a great deal of confusion at both the administrative and judicial levels of the
claims review process as to the level of functional impairment needed to establish a “significant work-related
limitation of function.” This article examines the Commissioner's (nee Secretary's) standard for determining
whether the claimant has satisfied this element of § 12.05C as well as the standards utilized by the courts to
make such determination. The article begins by discussing the Commissioner's position with respect to this
troublesome issue. Then, it discusses the standards adopted in those circuits that have addressed this question.
THE COMMISSIONER'S POSITION
The Commissioner does not offer any regulatory guidance as to the meaning of the term “significant workrelated limitation of function.” However, in affirming that Branham v. Heckler [FN2] and Flowers v. U.S. Dept.
of Health & Human Services [FN3] articulate the Fourth Circuit standard for determining whether this requirement of § 12.05C is satisfied, A.R. 92–3(4) [FN4] explains how the Fourth Circuit test differs from that of the
Commissioner:
What constitutes a significant work-related limitation of function is not defined in the Secretary's regulations. Agency policy is that the adjudicator in each case decides whether an impairment constitutes a
significant work-related limitation of function based on all evidence, including the requirements of a
claimant's past work. The fact that a claimant has an IQ between 60 and 69 and is unable to perform his or
her past relevant work may or may not mean that the claimant is disabled. It depends upon the facts of the
particular case. [FN5]
*1004 It should be noted that in 1993, the Commissioner promulgated A.R. 93–1(4) [FN6] to make several
technical corrections to A.R. 92–3(4). In this acquiescence ruling the Commissioner reaffirms her previously announced position regarding the significant work-related limitation of function element of § 12.05C. [FN7] In
practical effect, the Commissioner's flexible approach to this issue allows the adjudicator to fashion his or her
own standard in determining whether a “significant work-related limitation of function” exists under § 12.05C.
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This being the case, the level of disability required to satisfy this element of § 12.05C may vary from one adjudicator to the next. One cannot help but question the fundamental fairness of the Commissioner's decision to
vest adjudicators with such wide latitude. In so doing, the Commissioner has, in effect, granted to decisionmakers legislative as well as judicial authority and this, in the opinion of this writer, is an affront to the integrity
of the social security disability program. After all, entitlement to benefits under the Social Security Act and regulations must, in all cases, be judged under uniform, equitable standards and not according to the preferences
and personal agendas of decisionmakers. Moreover, appellate review is significantly hindered by the Commissioner's flexible approach as the disability claimant is precluded from urging on appeal the adjudicator's failure
to apply the appropriate standard for the significant work-related limitation of function requirement of § 12.05C.
In view of the above concerns, one can only hope that the Commissioner will reassess the currently announced
position on this issue and ultimately adopt by regulation or ruling a fixed, articulated standard for the second
prong of § 12.05C.
COURT ADOPTED STANDARDS
Given the Commissioner's failure to provide any meaningful guidance, it is not surprising that the courts
have struggled with the significant work-related limitation of function requirement of § 12:05C. What follows is
a circuit-by-circuit analysis of the jurisprudential treatment of this issue.
In Nieves v. Secretary of Health and Human Services, [FN8] the First Circuit concludes that the significant
work-related limitation of function requirement of § 12.05C is satisfied where the claimant's additional impairment has more than a slight or minimal effect on his or her ability to perform basic work activities. [FN9] In so
holding, the court adopts the test for determining whether a severe impairment has been established at step two
of the sequential evaluation process [FN10] approved in *1005 Brady v. Heckler [FN11] and cites
Mark Edwards v. Heckler [FN12] in support of its determination that “significant work-related limitation
of function” under § 12.05C is to be judged under the same standard. [FN13] While Nieves is the only reported
appellate court decision addressing this issue in the First Circuit, in Kelley v. Bowen, [FN14] a Massachusetts
district court, citing Nieves, has also endorsed the severe impairment standard for determining “significant workrelated limitation of function” under § 12.05C. [FN15]
Fourth Circuit jurisprudence has, for the most part, adhered to one standard in determining whether a
“significant work-related limitation of function” exists under § 12.05C. The first reported decision out of the
Fourth Circuit discussing this issue is Rainey v. Heckler. [FN16] Noting that the administrative law judge had
previously determined that the claimant's additional physical impairments rendered him incapable of performing
past relevant work, the court concluded that “ t his finding alone establishes the existence of an additional and
significant work-related limitation of function within the meaning of § 12.05C.” [FN17] Interestingly, the court
cites no regulations, rulings or jurisprudence in support of its holding. Also, bear in mind that Rainey simply
holds that an impairment that precludes the performance of past relevant work ipso facto satisfies the significant
work-related limitation of function requirement of § 12.05C. The case therefore should not be cited for the proposition that the ability to perform past relevant work is the sole criterion for determining whether the claimant
meets this element of the listing. In Branham v. Heckler, [FN18] the Fourth Circuit again concludes that the
claimant's inability to perform past relevant work (due to a back injury) established the existence of a
“significant work-related limitation of function” under § 12.05C, citing Rainey. [FN19] Again, the Fourth Circuit in Branham does not rule out the possibility that a significant work-related limitation of function may be established by other means.
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In Pullen v. Bowen, [FN20] the Fourth Circuit finds that the claimant's additional impairment results in a significant work-related limitation of function where the “effect on the claimant's ability to work is more than slight
or minimal.” [FN21] Curiously, the Fourth Circuit in Pullen does not refer to its prior decisions in Rainey and
Branham nor is the past relevant work standard endorsed in these cases discussed. In support of its determination, the Pullen court cites Nieves and Cook v. Bowen, [FN22] an Eighth Circuit decision. [FN23] In Turner v.
Bowen, [FN24] the Fourth Circuit again holds that the claimant's inability to perform past relevant work due to
additional physical impairments constitutes a “significant work-related limitation of function” under *1006 §
12.05C. [FN25] It is again interesting to note, however, that the court does not so much as mention the Pullen
decision or the more-than-slight-or-minimal standard adopted therein even though Pullen stood as the most recent Fourth Circuit pronouncement on this issue at the time Turner was decided. Nevertheless, in view of the
fact that, consistent with its prior holdings, the Fourth Circuit in Turner clearly stops short of holding that the inability to perform past relevant work is the only means by which a significant work-related limitation of function
may be established, Pullen's adoption of an alternative approach is neither expressly nor implicitly repudiated.
In Luckey v. Bowen, [FN26] the Fourth Circuit expressly recognizes for the first time that the claimant's ability
to perform past relevant work is not the only test for determining whether a “significant work-related limitation
of function” exists under § 12.05C:
Luckey's inability to perform his prior relevant work [due to exertional limitations] alone established
the significant work-related limitation of function requirement of § 12.05C. Further, the Secretary has
defined a severe impairment or combination of impairments as those which significantly limit an individual's physical or mental ability to do basic work activities. The Secretary's finding that Luckey suffers
from a severe combination of impairments also established the second prong of § 12.05C. [FN27]
(emphasis added) (citations omitted)
Finally, in Flowers v. U.S. Dept. of Health & Human Services, [FN28] the Fourth Circuit, relying on Branham, again finds that if the claimant's additional impairment renders him unable to perform past relevant work, a
“significant work-related limitation of function” exists under § 12.05C. [FN29] Consistent with its prior holdings, the Fourth Circuit in Flowers does not find that the past relevant test is the only standard for determining
whether this element of § 12.05C has been satisfied. Hence, the court's decisions in Pullen and Luckey are not
disturbed.
In A.R. 92–3(4), published on March 10, 1992, the Commissioner discusses the holdings of Branham and
Flowers and affirms that the claimant's inability to perform past relevant work as a result of additional physical
or mental impairments establishes a significant work-related limitation of function in the Fourth Circuit. [FN30]
The concern this writer has with A.R. 92–3(4) is that it fails to fully articulate the position of the Fourth Circuit
on this important issue as this circuit has also recognized in Luckey and Pullen that a significant work-related
limitation of function exists where the claimant is found to have an additional severe impairment or combination
of impairments. [FN31] The failure of A.R. 92–3(4) to comprehensively state the Fourth Circuit's position on
this issue is most unfortunate, particularly in view of the fact that adjudicators at the initial, reconsideration and
administrative law judge levels have little time for case research and analysis and therefore often rely on acquiescence rulings for a complete summary of the jurisprudence of their circuit with respect to the issue discussed
therein. This being the case, A.R. 92–3(4) will no doubt be construed by many as articulating the sole criterion
for determining significant work-related limitation of function in the Fourth Circuit. While one can only speculate as to the reasons behind the Commissioner's failure to discuss the *1007 Fourth Circuit's holdings in Luckey
and Pullen, in the opinion of this writer it was more than likely not by design but the result of simple inadvertence. This being the case, this writer suggests that the reader attach little or no significance to such omission.
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The Fifth Circuit has yet to address the significant work-related limitation of function requirement of §
12.05C. However, two district court decisions out of this circuit have addressed the issue and both are worthy of
discussion herein. In Romero v. Secretary of Health and Human Services, [FN32] the district court analyzed the
First Circuit's decision in Nieves and the Eighth Circuit's decision in Cook and found that under either test the
claimant had satisfied the significant work-related limitation of function element of § 12.05C:
Nieves holds that where a claimant's impairment is found to be ‘severe’ under step two of the Secretary's analysis, it automatically satisfies the ‘significant limitations' standard of § 12.05C. Cook holds that
an illness or injury imposes a significant limitation when its effect on the claimant's ability to work is
more than slight or minimal.
Under either Nieves or Cook, the evidence clearly shows that Romero has a significant limitation in
addition to his I.Q. scores. [FN33] (citations omitted)
Interestingly, in Estelle v. Secretary of Health and Human Services, [FN34] a Louisiana district court,
though not citing Romero, reaches the same findings in determining that the claimant had satisfied the requirements of the second prong of § 12.05C. [FN35] In fact, in Estelle, the district court quotes verbatim the language
of the first paragraph of Romero noted above without attributing it to its source. [FN36]
The reader will note that what Romero and Estelle failed to recognize is that the morethan-slight-or-minimal test adopted in Cook for the significant work-related limitation of function requirement
of § 12.05C is, in fact, the standard employed in the Fifth Circuit and elsewhere to determine whether or not the
claimant has established the existence of a severe impairment. [FN37] Thus, a severe impairment and an impairment having more than a slight or minimal effect on the claimant's ability to perform basic work are one and the
same.
Only one case arising out of the Sixth Circuit, Wright v. Schweiker, [FN38] has analyzed the significant
work-related limitation of function element of § 12.05C. Noting that the regulations governing disability entitlement fail to define such term, the court turned to 20 C.F.R. § 404.1521 for guidance:
Whether these impairments are in and of themselves disabling is not the question. Rather, applying §
12.05C, the ALJ should have determined solely whether these findings constitute ‘additional and significant work-related limitation of function.’ While the regulations do not further explain or define those
terms, the regulations do define an impairment as non-severe ‘if it does not significantly affect your physical or mental abilities to do basic work activities.’ Among the abilities and aptitudes listed as necessary
in basic work activities are physical functions such as sitting, pushing, and carrying, capacity for speaking, *1008 understanding and remembering simple instructions, use of judgment, and responding appropriately. [FN39] (citations omitted)
Thus, while not expressly adopting such approach, it is evident from the above-quoted language that the
Wright court endorses a severe impairment standard for the significant work-related limitation of function element of § 12.05C.
Magray v. Shalala [FN40] is the only reported decision out of the Seventh Circuit addressing the significant
work-related limitation of function issue. Here, the district court adopts the written findings of the magistrate
judge in addition to issuing a written opinion of its own. [FN41] The following excerpts from the incorporated
written opinion of the magistrate judge discuss the reasons behind the district court's decision to remand the case
to the Commissioner:
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In Nieves, the court held that, when an additional impairment is found to be ‘severe’, it necessarily
satisfies the second prong of Listing 12.05C of an ‘impairment imposing additional and significant workrelated limitation of function.’ However, in Fanning, the court emphasized that a finding of severity is not
required to satisfy the more-than-slight-or-minimal effect standard. See also, [David] Edwards,
(‘significant’ work-related limitation of function involves something more than ‘minimal’ but less than
‘severe’).
....
In this case, this court is unable to determine whether the ALJ erred as a matter of law in his application of Listing 12.05C. The ALJ did not render any express findings as to whether the plaintiff's personality disorder, with significant dependent features, had more than a slight or minimal effect upon the
plaintiff's ability to perform basic work activities....
....
... Based on the decision rendered in this case by the ALJ, this court cannot determine whether the
ALJ applied the proper legal standard in evaluating whether the plaintiff's mental impairments met Listing
12.05C. Consequently, this matter should be remanded to the Secretary for further proceedings. [FN42]
(citations omitted)
The district court goes to great lengths in its written opinion to reconcile the above-quoted findings of the
magistrate judge with the Commissioner's most recent pronouncement on this issue set forth in A.R. 93–1(4):
Third, the magistrate judge's recommendation does not contradict A.R. 93–1(4). A.R. 93–1(4) states:
‘Agency policy is that the adjudicator in each case decides whether an impairment constitutes a significant work-related limitation of function....’ Judge Gorence's recommendation does not prevent the adjudicator from deciding on a case-by-case basis whether an impairment constitutes a significant work-related
limitation. Judge Gorence's recommendation simply requires the ALJ to apply an articulated legal standard when making his case-by-case determination.
According to A.R. 93–1(4), such a requirement is not inappropriate. [FN43] (citations omitted)
A few observations regarding the court's findings in Magray. First, the magistrate judge's analysis of the significant work-related limitation of function issue is clearly *1009 but unfortunately tainted by her reliance on
Fanning v. Bowen [FN44] and David Edwards v. Heckler. [FN45] Like the Romero and Estelle decisions out of
the Fifth Circuit, both Fanning and David Edwards fail to recognize that the more-than-slight-or-minimal test
adopted for the significant work-related limitation of function element of § 12.05C is precisely the same standard endorsed by the jurisprudence for determining whether a severe impairment exists at step two of the sequential evaluation process. [FN46] Fanning and David Edwards are therefore clearly in error insofar as they hold
that a less than severe impairment may satisfy the more-than-slight-or-minimal test and hence, the second prong
of § 12.05C. [FN47] Secondly, the district court's interpretation of the magistrate judge's findings regarding the
appropriate standard for the significant work-related limitation of function requirement of § 12.05C is decidedly
erroneous. It is manifestly clear from the above-quoted portions of the magistrate judge's written opinion that the
magistrate judge recommends the adoption of a fixed, articulated standard for determining whether this requirement of § 12.05C is satisfied. In fact, the reason the magistrate judge recommended remand in this case is because it could not be determined from the record whether the administrative law judge had in fact applied the
more-than-slight-or-minimal standard approved by the magistrate judge. [FN48]
Finally, for the reasons previously set forth in this article, the district court's approval in Magray of the
Commissioner's flexible, case-by-case approach to interpreting the language of the second prong of § 12.05C is
indefensible and it is therefore hoped that this most recent judicial pronouncement on the significant work-re-
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lated limitation of function issue will not gain widespread acceptance.
Four Eighth Circuit decisions have considered the issue discussed herein. In Cook v. Bowen, [FN49] the
Eighth Circuit holds that a significant work-related limitation of function exists where the claimant's impairments have more than a slight or minimal effect on the ability to perform basic work, citing the Eleventh Circuit's decision in David Edwards and Nieves. [FN50] Relying once again on David Edwards, the Eighth Circuit
in Cook also finds that “the second part of § 12.05C is something less than severe as defined in § 404.1520(c).”
[FN51] Thus, Cook stands as yet another decision in which the court fails to recognize that an impairment having more than a slight or minimal effect on the ability to perform basic work activities cannot, under any circumstances, be less than severe given the fact that the jurisprudence has established the more-than-slight-or-minimal
test as the standard for determining whether a severe impairment exists at step two of the sequential evaluation
process. [FN52] In two subsequent decisions, Keller v. Shalala [FN53] and Box v. Shalala, [FN54] the Eighth
Circuit, citing Cook, holds once again that a significant work-related limitation of function exists where the
claimant's impairments have more than a slight or minimal effect on the ability to perform basic work. [FN55]
Unlike Cook, however, Keller and Box do not hold that a claimant's impairments need not be *1010 severe to
satisfy this element of § 12.05C. Finally, in Warren v. Shalala, [FN56] the Eighth Circuit again finds that the
more-than-slight-or-minimal test is the appropriate standard for determining whether a significant work-related
limitation of function under § 12.05C has been established [FN57] and, citing David Edwards, holds that a
claimant's impairments need not rise to the level of “severe” in order to satisfy this element of the listing.
[FN58] To conclude, the failure of Warren to discern the anomaly of the [David] Edwards determination that a
claimant's impairments must have more than a slight or minimal effect on the ability to perform basic work but
need not be severe under § 404.1520(c) is most unfortunate as it serves to perpetuate the Eighth Circuit's flawed
interpretation of the second prong of § 12.05C originating in the previously discussed Cook decision.
As noted in the discussion of the Magray decision out of the Seventh Circuit, the Ninth Circuit in Fanning v.
Bowen [FN59] holds that an impairment, though less than severe, satisfies the significant work-related limitation
of function element of § 12.05C if its effect on the claimant's ability to perform basic work activities is more
than slight or minimal. [FN60] In support of its determination, the court cites the Eleventh Circuit's decision in
David Edwards. [FN61] Fanning, therefore, is another example of a district or appellate court failing to discern
the internal inconsistency underlying the [David] Edwards approach to the significant work-related limitation of
function issue.
Perhaps no circuit has exhibited greater ambivalence with respect to the significant work-related limitation
of function issue than the Eleventh Circuit. In [Mark] Edwards v. Heckler, [FN62] the Eleventh Circuit applies
the more-than-slight-or-minimal test announced in Brady [FN63] in reversing the Commissioner's determination
that the evidence failed to demonstrate the existence of a severe impairment at step two of the sequential evaluation process. [FN64]
Turning its attention to the claimant's assertion that his impairments satisfied the requirements of § 12.05C,
the court next discussed the appropriate standard for determining whether a “significant work-related limitation
of function” exists under this listing section:
The definition of a severe impairment under § 404.1520(c) closely parallels that portion of § 12.05C
of Appendix 1 which requires a showing of a physical or other mental impairment imposing additional
and significant work-related limitation of function. The characteristics of a severe impairment
(significantly limiting his physical or mental ability to do basic work activities), thus, are almost identical
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to those characteristics of a disabling condition under § 12.05C (physical or other mental impairment imposing additional and significant work-related limitation of function). Although not identical for all intent
[sic] and purposes, for Edwards to satisfy the second-half requirement of § 12.05C, he must prove that he
suffers from a severe impairment. [FN65]
Finding the requisite I.Q. score had been demonstrated as well as “a severe impairment under §
404.1520(c),” the court concluded that Edwards was entitled to *1011 benefits under § 12.05C and accordingly
reversed the Commissioner's denial of his application for disability benefits. [FN66]
A year later, in [David] Edwards v. Heckler, [FN67] the Eleventh Circuit reaffirms its approval of the Brady
test for determining whether a severe impairment exists at step two of the sequential evaluation process but appears to depart from its previous determination that “significant work-related limitation of function” under §
12.05C is functionally equivalent to “severe” under § 404.1520(c):
The question under Listing 12.05C, however, is not whether the impairment is in and of itself disabling; thus, ‘significant’ requires something less than ‘severe’ within the meaning of § 404.1520(c). That
‘significant’ involves something more than ‘minimal’ but less than ‘severe’ follows from the regulations.
Once a claimant is found to have a ‘severe impairment’ within the meaning of § 404.1520(c), he is
deemed disabled (he must also meet the durational requirement), and the analysis comes to an end. It is
only when the impairment is not severe that the inquiry proceeds to determine whether the claimant is disabled under Appendix 1. A claimant is disabled under § 12.05C of the Appendix when the combination of
the impairments renders the claimant severely impaired; that is, disabled. Thus, the impairment referred to
in § 12.05C is something less than ‘severe’ as defined in § 404.1520(c). [FN68] (citations omitted)
Interestingly, the Eleventh Circuit in [David] Edwards stopped short of overruling [Mark] Edwards, explaining that while the latter decision is “somewhat ambiguous,” it was not inconsistent with the court's present
interpretation of the significant work-related limitation of function element of § 12.05C. [FN69] The court observed, in this regard, that Mark Edwards merely points out that the language of the second prong of § 12.05C is
similar to the regulatory definition of a severe impairment provided in § 404.1520(c) and that it “would be out of
step with the statutory scheme” to construe Mark Edwards “as requiring that the additional impairment itself be
severe.” [FN70] The court further noted that “ i t would make no sense that when a low I.Q. is present there
must be added to it a separate severe impairment” and thus, “ Mark Edwards could not have meant this.” [FN71]
A few observations regarding the Eleventh Circuit's decision in [David] Edwards. First, notwithstanding the
court's efforts to convince the reader otherwise, there is no question but that [Mark] Edwards holds that a significant work-related limitation of function can only exist where the claimant's additional impairment is found to
be severe under § 404.1520(c). [FN72] Secondly, the reader will note that David Edwards finds that a less than
severe impairment may satisfy the significant work-related limitation of function element of § 12.05C provided
its effect on the claimant's ability to perform basic work is more than slight or minimal. [FN73] Again, the point
that escapes the David Edwards court is the fact that an impairment satisfying the more-than-slight-or-minimal
test can be nothing less than a severe impairment, given the fact that the jurisprudence has adopted this same
standard for § 404.1520(c). [FN74] In fact, the Eleventh Circuit's decision in Brady is one of the first reported
cases adopting this standard for step two of the sequential evaluation *1012 process. The court's failure to discern this crucial point can be directly attributed to the fact that the Eleventh Circuit in David Edwards labors under the false assumption that proof of the existence of a severe impairment entitles the claimant to a finding of
disability. [FN75] The court reasoned that since the establishment of a severe impairment results in a finding of
disability and the first and second prongs of § 12.05C must both be present to produce such a finding, a significant work-related limitation of function must be “something less than ‘severe.’ ” [FN76] In Gant v. Sullivan,
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[FN77] a Florida district court holds that a significant work-related limitation of function is established where
the claimant's additional impairment has more than a slight or minimal effect on the ability to perform basic
work activities, citing the Eleventh Circuit's decision in Brady. [FN78] Additionally, the district court in Gant,
relying on Mark Edwards, finds that “ b ecause Plaintiff's impairments were found to be severe he therefore satisfies the significant limitations standard.” [FN79] Curiously, Gant does not discuss the subsequently decided
[David] Edwards decision or its determination that “significant work-related limitation of function” under §
12.05C is less than “severe” under § 404.1520(c).
In Lowery v. Sullivan, [FN80] the Eleventh Circuit holds once again that a “significant work-related limitation of function” under § 12.05C exists where the claimant's impairments have more than a minimal effect on his
or her ability to perform basic work activities. [FN81] While Lowery does not specifically hold that a claimant
may satisfy the requirements of the second prong of § 12.05C with a less than severe impairment, only one
case— David Edwards—is cited by the court in its discussion of the significant work-related limitation of function issue and it is therefore clear that Lowery does not suggest a departure from the David Edwards holding
with respect to this issue. Finally, in Davis v. Shalala, [FN82] the Eleventh Circuit reaffirms its approval of the
David Edwards standard, finding that the claimant's impairments satisfied the requirements of the second prong
of § 12.05C as they “imposed more than a slight or minimal even though less than a severe, limitation on her
functional abilities.” [FN83]
CONCLUSION
The Commissioner's failure to articulate by regulation or ruling a truly meaningful standard for the significant work-related limitation of function requirement of § 12.05C has left the courts with no alternative but to
fashion their own tests and three lines of jurisprudence have consequently emerged. The severe impairment test,
first adopted in the Wright case, finds support in the language of § 404.1520(c) which is similar, but not identical to, the wording of the second prong of § 12.05C. A second approach developed by the jurisprudence is the
past relevant work test. This test, recognized only in the Fourth Circuit, is in no way inconsistent with the severe
impairment standard discussed above in view of the fact that S.S.R. 86–8 provides that proof of the inability to
perform past relevant work ipso facto establishes a severe impairment within the meaning of § 404.1520(c).
[FN84] Nonetheless, this standard is not without its interpretive pitfalls as the Fourth Circuit has yet to *1013
address two crucial issues: First, is it necessary for the claimant to establish the inability to perform past relevant
work both as he or she performed it and as the work is generally performed in the national economy? [FN85]
Second, must the evidence demonstrate the inability to perform all jobs comprising the claimant's past relevant
work or any one of such jobs? [FN86] The third test endorsed by the jurisprudence for the significant work-related limitation of function element of § 12.05C can best be described as the morethan-slight-or-minimal-but-less-than-severe standard. [David] Edwards is the first reported decision recognizing
this approach and, as noted previously, it evolved from the court's erroneous assumption that proof of the existence of a severe impairment results in a finding of disability. Unfortunately, there has emerged in recent years a
long line of decisions adopting this standard.
Having reviewed the elements of each of the judicially established tests, this writer feels constrained to point
out that none of these standards is consistent with the Commissioner's regulations governing disability entitlement. The past relevant work test is wholly unacceptable because the level of disability required thereunder will
vary according to the exertional and nonexertional requirements of the claimant's past work and, if nothing else,
the language of the second prong of § 12.05C suggests an intent to implement a fixed, objective criteria for this
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element of the listing; that is to say, the term “significant” should have the same meaning in every case. The
[David] Edwards standard, referred to herein as the more-than-slight-or-minimal-but-less-than-severe test, is
tainted with internal inconsistency and based upon a misinterpretation of the Commissioner's regulations governing disability entitlement. Finally, both the test approved in [David] Edwards and the severe impairment
standard announced in Wright fail to establish for § 12.05C a level of functional severity that is commensurate
with that which is contemplated by 20 C.F.R. § 404.1525(a) (1996). This regulatory provision provides that
“[t]he Listing of Impairments describes, for each of the major body systems, impairments which are considered
severe enough to prevent a person from doing any gainful activity ” (emphasis added). Even in today's world of
work, it is beyond dispute that a claimant with an IQ of 70 and an additional impairment marginally satisfying a
more-than-slight-or-minimal standard is fully capable of engaging in a wide range of unskilled labor, regardless
of whether the “additional” impairment is of an exertional or nonexertional nature. Any competent vocational
expert will substantiate this position. It follows, then, that under each of the above-discussed standards, §
12.05C fails to rise to the level of disability mandated by § 404.1525(a) as entitlement to benefits may be established even where the claimant is not rendered incapable of “any gainful activity.”
To conclude, the failure of the courts to develop a uniform approach to § 12.05C's second prong that is consistent with the Commissioner's regulations governing disability entitlement further underscores the need for the
Commissioner to now establish by regulation or ruling a truly substantive, meaningful test for the significant
work-related limitation of function element of § 12.05C. Until this is accomplished, the courts will continue to
struggle with this troublesome issue and individuals fully capable of performing work existing in significant
numbers will continue to establish entitlement to ill-deserved disability benefits.
[FNa]. The views are those of the author and do not necessarily reflect the views of the publisher.
[FNaa]. Peter J. Lemoine is an Administrative Law Judge of the Social Security Administration in Alexandria,
Louisiana. He is also an adjunct professor at Northwestern State University, Natchitoches, LA.
[FN1]. 20 C.F.R. Part 404, Subpart P, Appendix 1 (1996).
[FN2]. 775 F.2d 1271 (4th Cir.1985).
[FN3]. 904 F.2d 211 (4th Cir.1990).
[FN4]. (Cum.Ed.1992). Social security rulings “represent precedent final opinions and orders and statements of
policy and interpretations that have been adopted by the Administration” and are binding on the Commissioner's
adjudicative components. 20 C.F.R. § 422.406(b)(1) (1996). Social security rulings are not binding on the
courts. Lauer v. Bowen, 818 F.2d 636, 640, n. 9 (7th Cir.1987) (per curiam). Social security acquiescence rulings, unlike other rulings, only have legal effect in the circuit of the appellate court decision to which the Commissioner acquiesces. 20 C.F.R. § 404.985(a) & (b) (1996).
[FN5]. A.R. 92–3(4), at 74.
[FN6]. 58 Fed.Reg. 25996 (1993). In 1993, the Commissioner discontinued the publication of social security rulings in annual cumulative editions. Hence, the appropriate citation to the Federal Register is provided.
[FN7]. Id. at 25998.
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[FN8]. 775 F.2d 12 (1st Cir.1985).
[FN9]. 775 F.2d at 14. 20 C.F.R. § 404.1521 (1996) defines basic work activities as “the abilities and aptitudes
necessary to do most jobs” and cites the following examples: walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, handling, seeing, hearing and speaking; understanding, remembering and carrying out simple
instructions; use of judgment or ability to make work-related decisions; responding appropriately to supervision,
co-workers and usual work situations; adapting to changes in the workplace.
[FN10]. 20 C.F.R. § 404.1520 (1996) establishes a five-step sequential evaluation process for evaluating adult
disability claims. At step two, the issue is whether or not the claimant has demonstrated the existence of a severe
impairment. § 404.1520(c) defines a severe impairment as “any impairment or combination of impairments
which significantly limits your physical or mental ability to do basic work activities.” If the claimant fails to establish the existence of a severe impairment, the sequential evaluation process ends at step two and the claim is
denied. If a severe impairment is established, the sequential evaluation process proceeds to step three and, if
need be, steps four and five. 20 C.F.R. § 404.1520(b)–(f) (1996); S.S.R. 86–8, at 80 (Cum.Ed.1986).
[FN11]. 724 F.2d 914, 920 (11th Cir.1984). It should also be noted that the more-than-slight-or-minimal test has
consistently been employed by the jurisprudence to determine whether a severe impairment exists under §
404.1520(c). Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir.1985); Farris v. Secretary of Health & Human Services, 773 F.2d 85, 89–90 (6th Cir.1985); Henderson v. Sullivan, 930 F.2d 19, 21 (8th Cir.1991).
[FN12]. 736 F.2d 625, 630–31 (11th Cir.1984). The first name of the plaintiff-appellant is included herein so
that this case will not be confused with a subsequent Eleventh Circuit decision bearing the same name to be
hereinafter discussed.
[FN13]. 775 F.2d at 14 & nn. 6–7.
[FN14]. 687 F.Supp. 704 (D.Mass.1988).
[FN15]. 687 F.Supp. at 706 (quoting Nieves, 775 F.2d at 14).
[FN16]. 770 F.2d 408 (4th Cir.1985).
[FN17]. 770 F.2d at 411.
[FN18]. 775 F.2d 1271 (4th Cir.1985).
[FN19]. 775 F.2d at 1273.
[FN20]. 820 F.2d 105 (4th Cir.1987).
[FN21]. 820 F.2d at 109.
[FN22]. 797 F.2d 687, 690 (8th Cir.1986).
[FN23]. 820 F.2d at 109.
[FN24]. 856 F.2d 695 (4th Cir.1988).
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[FN25]. 856 F.2d at 698–99 n. 9 (quoting Branham, 775 F.2d at 1273).
[FN26]. 890 F.2d 666 (4th Cir.1989).
[FN27]. 890 F.2d at 669.
[FN28]. 904 F.2d 211 (4th Cir.1990).
[FN29]. 904 F.2d at 214.
[FN30]. A.R. 92–3(4), at 74–75.
[FN31]. Luckey, 890 F.2d at 669; Pullen, 820 F.2d at 109. The more-than-slight-or-minimal test recognized in
Pullen is, as noted previously, the standard adopted by the jurisprudence for determining whether a severe
impairment exists at step two of the sequential evaluation process. Hence, Pullen, like Luckey, adopts a severe
impairment standard for the significant work-related limitation of function requirement of § 12.05C.
[FN32]. 707 F.Supp. 249 (W.D.La.1989).
[FN33]. 707 F.Supp. at 253–54.
[FN34]. 751 F.Supp. 110 (W.D.La.1989).
[FN35]. 751 F.Supp. at 115.
[FN36]. Id.
[FN37]. See supra n. 11.
[FN38]. 556 F.Supp. 468 (M.D.Tenn.1983). It should be noted that Wright is, in fact, the first reported district or
appellate court decision addressing this issue.
[FN39]. 556 F.Supp. at 476.
[FN40]. 880 F.Supp. 1278 (E.D.Wis.1995).
[FN41]. 880 F.Supp. at 1283.
[FN42]. 880 F.Supp. at 1287.
[FN43]. 880 F.Supp. at 1282.
[FN44]. 827 F.2d 631 (9th Cir.1987).
[FN45]. 755 F.2d 1513 (11th Cir.1985).
[FN46]. See supra n. 11.
[FN47]. Fanning, 827 F.2d at 633 & n. 3; [David] Edwards, 755 F.2d at 1515–16.
[FN48]. See supra text accompanying n. 40.
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[FN49]. 797 F.2d 687 (8th Cir.1986).
[FN50]. 797 F.2d at 690.
[FN51]. 797 F.2d at 691.
[FN52]. See supra n. 11.
[FN53]. 26 F.3d 856 (8th Cir.1994).
[FN54]. 52 F.3d 168 (8th Cir.1995).
[FN55]. Keller, 26 F.3d at 858; Box, 52 F.3d at 170.
[FN56]. 29 F.3d 1287 (8th Cir.1994).
[FN57]. 29 F.3d at 1291.
[FN58]. Id. (quoting [David] Edwards, 755 F.2d at 1515).
[FN59]. 827 F.2d 631 (9th Cir.1987).
[FN60]. 827 F.2d at 633 & n. 3.
[FN61]. Id.
[FN62]. 736 F.2d 625 (11th Cir.1984).
[FN63]. See supra n. 11 and accompanying text.
[FN64]. 736 F.2d at 630.
[FN65]. 736 F.2d at 629.
[FN66]. 736 F.2d at 629–31.
[FN67]. 755 F.2d 1513 (11th Cir.1985).
[FN68]. 755 F.2d at 1515.
[FN69]. Id.
[FN70]. Id.
[FN71]. 755 F.2d at 1516.
[FN72]. See supra text accompanying n. 63.
[FN73]. See supra text accompanying n. 66.
[FN74]. See supra n. 11.
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[FN75]. See supra text accompanying n. 66. As previously noted, proof of the existence of a severe impairment
does not entitle the claimant to a finding of disability. See supra n. 10.
[FN76]. See supra text accompanying n. 66.
[FN77]. 773 F.Supp. 376 (S.D.Fla.1991).
[FN78]. 773 F.Supp. at 382.
[FN79]. Id.
[FN80]. 979 F.2d 835 (11th Cir.1992).
[FN81]. 979 F.2d at 837.
[FN82]. 985 F.2d 528 (11th Cir.1993).
[FN83]. 985 F.2d at 534–35.
[FN84]. S.S.R. 86–8, at 80.
[FN85]. It should be noted that an application for benefits will be denied at step four of the sequential evaluation
process if the evidence demonstrates that the claimant is able to perform his or her past relevant work either as
he or she performed it or as the work is generally performed in the national economy. S.S.R. 82–61, at 429.
[FN86]. We have no way of knowing whether or not the Fourth Circuit's past relevant work standard is wholly
in accord with 20 C.F.R. § 404.1565(a) (1996). This regulatory provision provides that in determining the
claimant's ability to perform past relevant work at step four of the sequential evaluation process, all jobs performed within 15 years of the date of adjudication of the claim or, if earlier, the claimant's date last insured, are
to be considered.
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