decided: April 8, 1982.
CATHERINE SANTISE, APPELLEE IN 81-1904 & 81-2026; MICHAEL STETSKO, APPELLEE IN 81-1905 & 81-2027; SALVATORE ALTOMONTE, APPELLEE IN 81-1906 & 81-2028; OLIVER MCCAULEY, APPELLEE IN 81-1907 & 81-2029; ELFRIEDE F. SIMMONS, APPELLEE IN 81-1908 & 81-2030; JOAN M. FINUCANE, APPELLEE IN 81-1909 & 81-2031; JOSEPH MUSCOVITCH, APPELLEE IN 81-1910 & 81-2032; GERALDINE G. ROCHE, APPELLEE IN 81-2722; FARIES L. THOMAS, APPELLEE IN 81-2725
RICHARD S. SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES, APPELLANT
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before Adams, Gibbons and Garth, Circuit Judges.
Opinion OF THE COURT
We are asked in this appeal to decide whether certain medical-vocational regulations promulgated by the Department of Health and Human Services ("HHS" or "Department") satisfy the requirements of the Social Security Act. The district court concluded that the regulations-which take the form of a "grid" and are used in determining eligibility for disability benefits-are at variance with both the Act and previous decisions of this Court. We disagree, and therefore will reverse.
For more than a quarter-century, disabled workers and their dependents have been provided monetary benefits under the Social Security Act. Originally, the Social Security Act defined a disabled worker, or disability, in purely medical terms, without reference to vocational factors.*fn1 In 1967, however, Congress amended the statute to require explicitly that a decision as to an individual's disability take into account that person's potential for employment.*fn2 According to the amended Act, which remains in force today, a claimant is to be adjudged disabled
only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.
42 U.S.C. § 423(d)(2)(A). The statute proceeds to explain that "work which exists in the national economy" means "work which exists in significant numbers either in the region where such individual lives or in several regions of the country"; in this connection, it is irrelevant whether "such work exists in the immediate area in which (an individual) lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." Id.
In 1978, after giving interested parties an opportunity for notice and comment, HHS promulgated rules intended to implement the 1967 vocational amendment to the Act.*fn3 These rules establish a sequential decision-making process to be followed by an administrative law judge (ALJ) in a disability case. See 20 C.F.R. § 404.1520. First, the ALJ ascertains whether the applicant currently is working; if so, the claim is denied. Id. at § 404.1520(b). Second, the ALJ determines, solely on the basis of medical evidence, see id. at § 404.1526, whether the claimed impairment is "severe," that is, of a magnitude sufficient to limit significantly the individual's "physical or mental ability to do basic work activities"; if it is not, the claim is denied. Id. at § 404.1520(c). Third, the ALJ decides, again using only medical evidence, whether the impairment equals or exceeds in severity certain impairments described in Appendix 1 of the regulations; if it does, the claimant automatically is awarded disability benefits. Id. at § 404.1520(d). Fourth, the ALJ considers whether the applicant has sufficient "residual functional capacity"-defined as what an individual "can still do despite (his) limitations"-to perform his past work; if so, the claim is denied. Id. at § 404.1520(e); see id. at § 404.1545(a). Finally, the ALJ adjudicates, on the basis of the claimant's age, education, work experience, and residual functional capacity, whether the applicant can perform any other gainful and substantial work within the economy. Id. at § 404.1520(f). It is only during this final stage of the decisionmaking process that the ALJ is authorized to make use of the "grid"-i.e., the medical-vocational tables set out in Appendix 2 of the regulations-which is at issue in this proceeding.
Before employing the medical-vocational tables, however, an ALJ is obligated to make a number of factual findings about the applicant in question. Specifically, the claimant must be classified according to his or her age,*fn4 education,*fn5 prior work experience,*fn6 and residual functional capacity.*fn7 With regard to each of these factors, moreover, the claimant is permitted to introduce evidence and to rebut any evidence proffered by the Secretary. Id. at Appendix 2, § 200.00(a). It is only after this detailed inquiry as to an applicant's medical and vocational characteristics, therefore, that the regulatory tables invalidated by the district judge come into play.
The tables themselves are relatively straightforward in nature. In brief, they contain all possible combinations of the four relevant vocational factors-age, education, work experience, and residual functional capacity. With respect to each combination, the guidelines reveal whether an individual described by those particular characteristics is "disabled" or "not disabled"-that is, able or not able to engage in any other significant, gainful employment that exists in the national economy. In determining whether a claimant is eligible for disability benefits, therefore, an ALJ simply plots the applicant's "vocational profile" on an appropriate grid and arrives at the result indicated by the regulations for that specific combination of traits. For example, a person "closely approaching advanced age," with a "limited" educational background, no previous work experience, and the ability to perform light work would be classified as "not disabled" under the regulations. Id. at Appendix 2, Rule 202.10. By contrast, an individual of identical age, work experience, and residual functional capacity, who is "illiterate or unable to communicate in English" would be adjudged "disabled." Id. at Rule 202.09.*fn8 If a claimant's characteristics do not fit neatly into one of the many categories defined by the tables,*fn9 the ALJ is permitted to arrive at a conclusion as to disability independent of, but consonant with, the regulations.*fn10 If, however, an individual's medical-vocational status in fact is described by the grid, the regulations require that a particular decision be reached. Id. at § 404.1569 & Appendix 2.
According to HHS, underlying the regulations is the Secretary's determination, arrived at by taking administrative notice of relevant information,*fn11 "that a given number of unskilled jobs exist in the national economy that can be performed by persons with each level of residual functional capacity." Brief for Appellant at 14. For example, the Department has concluded that approximately 200 unskilled sedentary positions are available throughout the country, with each position representing "numerous jobs." See 20 C.F.R. part 404, Appendix 2, § 201.00(a). Similarly, the Department has identified 1600 unskilled positions for persons able to perform light work, and 2500 unskilled positions for those individuals with a maximum sustained work capability limited to medium work. Id. at Appendix 2, §§ 202.00(a) & 203.00(a). With respect to each table entry, or "rule," the Secretary has ascertained, by combining this administrative notice with expertise derived from previous experience in administering the disability program, the degree to which an individual's vocational factors will affect his chances of obtaining one of these many existing jobs. The regulations are accompanied by a detailed textual statement that explains and justifies each of the Department's medical-vocational rules.
Nine cases have been consolidated for review on this appeal. In each instance, an ALJ determined, relying on the medical-vocational regulations described previously, that a particular claimant was not disabled. In each instance, upon appeal pursuant to 42 U.S.C. § 405(g), the district judge assumed, without deciding, that "substantial evidence" existed in the record to support the factual determinations reached by the ALJ-namely, that the claimant was a certain age, possessed a certain educational level and residual functional capacity, and had certain previous work experience. Santise v. Harris, 501 F. Supp. 274, 275 (D.N.J.1980). The district judge instead criticized, for two reasons, the grid system employed by HHS in disability cases.
First, the district court concluded that the medical-vocational regulations were "inconsistent with" and "contradictory to" the "plain language and meaning" of the Social Security Act. The Department, declared the court, was "clearly" obligated by 42 U.S.C. § 423(d)(2)(A) in each instance to "determine as a matter of fact whether a claimant is capable of retaining "substantial gainful work.' " HHS' regulatory arrangement, however, merely required an ALJ to identify four vocational characteristics about a particular applicant-and, having done so, the ALJ's task was "finished," since "the grid decides the "fact' of whether the claimant is capable of retaining "substantial gainful work.' " Such a result, the district judge believed, could not be squared with the mandates of the Act:
Simply put, the human function of judging cannot be replaced by a robotized resort to a grid. It is my conclusion that the Act requires that when a claimant is denied disability benefits that denial must be the product of individualized fact finding based on substantial evidence in the record. (HHS') new grid system is inconsistent with that principle.
Santise v. Harris, 501 F. Supp. at 277.
Second, the district court contended that the medical-vocational regulations could not be reconciled with previous decisions of this Court, namely, Livingston v. Califano, 614 F.2d 342 (3d Cir. 1980), Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979), and Rossi v. Califano, 602 F.2d 55 (3d Cir. 1979). According to the district judge, those decisions establish that, once a claimant makes a prima facie showing of disability, the burden shifts to the Secretary to "come forward with evidence relating to the individual claimant and that claimant's ability to work." In most, although not necessarily all instances, such evidence would take the form of testimony by a vocational expert as to the work-related capabilities of the applicant. But regardless of whether such an expert participated in every disability proceeding, the crucial point made by the district court was that
(HHS') reliance on a grid, drawn in advance to cover a wide variety of individual cases, does not satisfy its obligation of basing its conclusion on substantial evidence. An abstract chart in a reference book, keyed to only four factors, does not provide the claimant with the individualized consideration of the facts of her own particular case that she is entitled to under the Act. Nor can a chart be cross-examined, nor can the claimant do anything to rebut it.
The trial court concluded, therefore, that "the newly promulgated regulations are at odds with the established judicial interpretation of the Act, which requires individualized treatment of each claim." Santise v. Harris, 501 F. Supp. at 276-77.
For these two reasons, the district judge held that HHS could not employ the medical-vocational regulations in making administrative determinations of disability.*fn12 The Department filed a timely appeal.*fn13
HHS' disability hearing system is "probably the largest adjudicative agency in the western world." J. Mashaw, C. Goetz, F. Goodman, W. Schwartz, P. Verkuil & M. Carrow, Social Security Hearings and Appeals: A Study of the Social Security Administration Hearing System xi (1978) (hereinafter cited as J. Mashaw). In fiscal 1976, for example, the agency's ALJs disposed of 180,000 cases; by contrast, during that same time period, only 130,000 civil and criminal matters were terminated by the entire Article III court system. Id. Approximately 8000 appeals were brought in 1978 from agency disability-related determinations to the federal district courts; this litigation "constitute(d) the largest portion of the workload of the federal judiciary from federal agencies." Dobrowolsky, supra, 606 F.2d at 409 n.18.
An agency that makes thousands upon thousands of individualized determinations as to disability each year will inevitably at times treat similarly situated persons differently. It is not surprising, therefore, that HHS was subjected to considerable criticism with respect to what some perceived to be the agency's failure to "produce predictable and consistent results." Mashaw, Conflict and Compromise Among Models of Administrative Justice, 1981 Duke L.J. 181, 182 & n.4 (collecting congressional and executive critiques of the disability-hearing process). One academic study concluded, for example, that "(t)he inconsistency of the disability process is patent. Indeed, it is widely believed that the outcome of cases depends more on who decides the case than on what the facts are." J. Mashaw, supra, at xxi. Such a state of affairs, of course, is difficult to accept:
Perhaps no characteristic of a procedural system is so uniformly denounced as a tendency to produce inconsistent results. When disposition depends more on which judge is assigned to the case than on the facts or the legal rules, the tendency is to describe the system as lawless, arbitrary, or the like, even though the case assignment is random.
Id. at 19.*fn14
The medical-vocational regulations at issue on this appeal were designed by HHS in large part to remedy the problem created by the disparity of rulings on the part of ALJs. The Department has attempted to derive detailed standards, covering a host of situations, and has mandated that individual cases be decided in accordance with those promulgated standards. The regulations are intended to ensure that "the claims of all individuals similarly situated are handled in a fair and consistent manner" and that "determinations made by one set of adjudicators on the basis of the same facts will be handled the same way by another group of adjudicators, wherever in the country they are located." 43 Fed.Reg. 55,349, 55,362 (1978). According to HHS, the regulations will "promote more equitable, consistent and understandable decisions." Id. at 55,355. See also Goldhammer, The Effect of New Vocational Regulations on Social Security and Supplemental Security Income Disability Claims, 32 Ad.L.Rev. 501, 504-05 (1980).
There are, however, obvious risks associated with such an approach: the more precisely the disability standards are formulated, the greater is the possibility that ALJ adjudications will not be "individualized."*fn15 Indeed, many of the statements received by the Department from members of the public during the notice and comment period reflected just such a concern. It was feared that the agency, particularly by issuing the medical-vocational tables in Appendix 2, was attempting to abandon its long-standing commitment to "individualized adjudication" and to adopt in its stead an "average man" approach. See 43 Fed.Reg. 55,349, 55,355-56 (1978). In this regard, it should be recalled that the district court invalidated the regulations precisely because of their alleged failure to provide for "individualized consideration" of all relevant facts about a claimant. Santise v. Harris, 501 F. Supp. at 276. The appellees, of course, press similar arguments upon this Court.
The underlying issue involved in this appeal can be stated simply: whether HHS has the authority, both under the Act and under previous judicial decisions, to pursue the goal of greater uniformity by issuing regulations that may result, at least to some extent, in a lesser degree of individualized consideration of claimants' characteristics. For the reasons that follow, we answer this inquiry in the affirmative.
While the question of the conformity of HHS' medical-vocational regulations with the Social Security Act is a matter of first impression in this Circuit, we note that many other federal courts previously have passed on, either directly or indirectly, the validity of the grid system challenged here. Although some of these decisions contain expressions of disquietude over the impact and application of the regulations,*fn16 and although in a number of instances determinations made in accordance with the regulations have been voided, in whole or in part, by judicial decree,*fn17 in the majority of the cases, the Department's disability guidelines have received either explicit*fn18 or implicit*fn19 endorsement by the courts. After careful consideration of the appellees' arguments, we join this majority.
Little need be said, as an initial matter, about HHS' authority to promulgate legislative regulations designed to implement the Social Security Act. By statute, Congress has vested in the Secretary of HHS the power to issue rules "not inconsistent with the provisions of this title (and) necessary or appropriate to carry out (its) provisions." 42 U.S.C. § 405(a).*fn20 More specifically, the Secretary is authorized to establish regulations governing determinations of disability; that is, to "adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits (under Title II of the Act)." Id.
The claimants insist that what would appear to be a sweeping statutory grant should be interpreted so as to prohibit the Department from adopting anything other than "procedural" regulations, however they might be defined. We find no support for such a proposition. By its very terms, section 405(a) is conjunctive in nature: the Secretary is accorded "full power and authority to make rules and regulations and to establish procedures" in order to administer the Act. It is well established, moreover, that Congress may "delegate ( ) broad powers to executives to determine (through implementing regulations) the details of any legislative scheme." United States v. Rock Royal Co-operative Inc., 307 U.S. 533, 574, 59 S. Ct. 993, 1013, 83 L. Ed. 1446 (1939). From our vantage point, section 405(a) appears to contain precisely such an explicit delegation of legislative authority: Congress has charged the Department with the responsibility of adopting statutory-type rules in order to give practical effect to the disability insurance program established by the Act.
Two recent Supreme Court decisions, both of which rejected various challenges to legislative regulations promulgated by HHS, are instructive as to the appropriate standard of judicial review to be applied in a case such as the present one. In Batterton v. Francis, 432 U.S. 416, 97 S. Ct. 2399, 53 L. Ed. 2d 448 (1977), in the course of upholding a regulatory definition of "unemployment" issued in connection with Title IV of the Social Security Act, the Court stressed that Congress had "expressly delegated " to the Department the power to prescribe standards defining "unemployment" for Title IV purposes. In such a situation,
Congress entrusts to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory term. In exercising that responsibility, the Secretary adopts regulations with legislative effect. A reviewing court is not free to set aside those regulations simply because it would have interpreted the statute in a different manner.... (T)he regulation at issue in this case is therefore entitled to more than mere deference or weight. It can be set aside only if the Secretary exceeded his statutory authority or if the regulation is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
Id. at 425-26, 97 S. Ct. at 2405-06 (citations and footnotes omitted). Subsequently, in connection with regulations implementing provisions of Title XIX of the Act, the Court reiterated this "limited" standard of review. Schweiker v. Gray Panthers, 453 U.S. 34, 101 S. Ct. 2633, 69 L. Ed. 2d 460 (1981). After taking note of the "byzantine construction" of the statutory scheme, the Justices observed that Congress, "perhaps appreciating the complexity of what it had wrought" conferred on the Secretary "exceptionally broad authority to prescribe standards for applying certain sections of the Act." Accordingly, an HHS regulation establishing criteria for Medicaid eligibility was entitled to "legislative effect," and a reviewing court's only obligations were to ensure that "the Secretary did not "exceed his statutory authority' and that the regulation is not arbitrary or capricious." Id. at 43-44, 101 S. Ct. at 2640.*fn21 See also Buczynski v. General Motors Corp., 616 F.2d 1238, 1242-43 (3d Cir. 1980), aff'd sub nom. Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 101 S. Ct. 1895, 68 L. Ed. 2d 402 (1981); Baker v. Otis Elevator Co., 609 F.2d 686, 691 (3d Cir. 1979).
Applying the standard of review enunciated in Batterton and Gray Panthers, we conclude that, in promulgating the medical-vocational regulations before us today, the Department did not exceed its statutory authority, act arbitrarily or capriciously, or in any way abuse its discretion. On the contrary, we are of the opinion that the regulations are " "reasonably related to the purposes of the enabling legislation,' " Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S. Ct. 1652, 1660, 36 L. Ed. 2d 318 (1973) (quoting Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 280-81, 89 S. Ct. 518, 525, 21 L. Ed. 2d 474 (1969)), and consequently should be upheld as "a legitimate, reasonable, and direct adjunct to the power expressly conferred," Stallings v. Harris, 493 F. Supp. 956, 958 (W.D.Tenn.1980).
In this connection, we cannot accept the district court's contention that HHS' use of the vocational grids is "contradictory to the plain language and meaning" of 42 U.S.C. § 423(d)(2)(A). Santise v. Harris, 501 F. Supp. at 277. While certain court decisions-handed down, it should be noted, before these regulations took effect-stand for the proposition that an ALJ must identify specific jobs capable of being filled by a claimant, see, e.g., Bastien v. Califano, 572 F.2d 908, 912-13 (2d Cir. 1978), or for the proposition that a vocational expert's testimony is, if not always necessary, at least highly desirable, see, e.g., Garrett v. Richardson, 471 F.2d 598, 603-04 (8th Cir. 1972), the statute by its terms does not require as much. What the statute does demand is that the denial of disability benefits be the product of individualized fact finding, i.e., that disability claims be evaluated on a case-by-case method, taking into account each applicant's peculiar vocational, medical, chronological, and educational characteristics. And under the new regulations, this remains very much the central concern of the disability proceeding.
Under the regulations themselves, before the medical-vocational guidelines contained in Table 2 can be applied, complete consideration of all of an applicant's relevant characteristics is required. Before resorting to the grid, an ALJ must investigate, and make specific findings about, a claimant's residual functional capacity, age, education, and work experience. Each of these findings must be supported in the record by substantial evidence. 42 U.S.C. § 405(g). With respect to each such finding, moreover, the applicant is given an opportunity both to introduce evidence of his own and to contest any evidence proffered by representatives of the Secretary. See 20 C.F.R. part 404, Appendix 2, § 200.00(a).*fn22 It is only after the person seeking benefits has been thoroughly evaluated in light of the factors specifically delineated by Congress in section 423(d)(2)(A) that the decisionmaking process can be termed, in any meaningful sense, "mechanical"; only at this point does the ALJ consult the grid to determine whether any job exists in the national economy that can be performed by an individual with such characteristics.
Moreover, it must be kept in mind that the grids do not govern-and indeed were not intended to govern-all disability cases. For example, the regulations specifically dictate that "a conclusion of disabled or not disabled is not directed" if an individual's vocational profile is not precisely contained in Appendix 2. 20 C.F.R. § 404.1569 & Appendix 2, § 200.00(d); see Thomas v. Schweiker, 666 F.2d 999, 1004 (5th Cir. 1982) ("use of the Guidelines is inappropriate where their evidentiary underpinnings do not coincide exactly with the evidence of disability appearing on the record" (emphasis added)). Similarly, the rules "may not be fully applicable" where a claimant suffers from non-exertional, instead of or in addition to exertional, impairments. 20 C.F.R., part 404, Appendix 2, § 200.00(e); see Walker v. Harris, 504 F. Supp. 806, 811 (D.Kan.1980) (holding that testimony from a vocational expert is necessary where the applicant possesses non-exertional problems). Then, too, the regulations themselves provide that they are to be of only limited help when it is established that a claimant is unable either to perform a full range of work at a certain level of functional capacity, or to perform such work on a sustained basis. 20 C.F.R. part 404, Appendix 2, §§ 200.00(c) & (d); see Proctor v. Schweiker, 526 F. Supp. 70, 75-76 (D.Md.1981). The caselaw to date indicates that courts have been quite vigilant in policing these as well as other boundaries contained in HHS' regulatory scheme. See note 19 supra (collecting cases).
Even when focusing on the grids alone, however, we are unpersuaded that their use inhibits any purpose meant to be realized by the Act. Thus, it is quite possible "that claimants will be found disabled under the new regulations who would not have been found disabled under previous adjudicatory practices." Goldhammer, supra, at 506 (emphasis added); see Frady v. Harris, 646 F.2d 143, 145 (4th Cir. 1981) ("the regulations may ... in many cases enhance the likelihood of qualification by applicants for benefits"); see also cases cited at note 12 supra.*fn23 More to the point, the Secretary must be able somehow to demonstrate that an individual with certain characteristics who claims to be disabled in fact is capable of performing certain tasks. The Secretary must persuade an ALJ-and ultimately, in most cases, a court-that jobs exist in the national economy that the claimant is able to fill. One possible method of satisfying this burden, of course, might be to introduce testimony from a vocational expert as to which, if any, positions can be performed by a person possessing the applicant's particular skills; courts have long found such a process to be consonant with the requirements of the Act. See, e.g., Dobrowolsky, supra, 606 F.2d at 409-10 & n.20. It is difficult to understand, however, why a similar function cannot be served by the medical-vocational tables, which, after all, are based on "the same sources (e.g., Department of Labor studies) which a vocational expert would consult in determining whether a particular claimant's abilities matches a job's requirements." Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 530 (6th Cir. 1981). Indeed, if anything, the new regulations are likely to increase the accuracy of determinations involving the availability vel non of certain unskilled jobs in the economy, inasmuch as "the ad hoc judgments of administrative law judges based on the testimony of vocational experts and other witnesses and on their own limited and variable knowledge of the labor market," derived from identified and public documents, and "supplement(ed) and draw(n) upon ... in a rulemaking proceeding," Cummins v. Schweiker, 670 F.2d 81, 83 (7th Cir. 1982).
In sum, we believe that the degree of individualized consideration afforded to applicants for disability benefits is not significantly lessened by the Department's medical-vocational guidelines. Even were we persuaded, however, that the disability regulations, in practice, do lead to a somewhat more "mechanical" review process, we find nothing in either the Social Security Act or its legislative history*fn24 that would prohibit the Department from acting in such a manner to obtain more uniform results with respect to claimants with similar degrees of disability. We conclude, therefore, that the district court erred in holding that the medical-vocational guidelines are "inconsistent with" and "contradictory to" the requirements of the Act.
The district court also determined that the medical-vocational regulations could not be harmonized with previous decisions of this Circuit, specifically, Rossi v. Califano, 602 F.2d 55 (3d Cir. 1979), Livingston v. Califano, 614 F.2d 342 (3d Cir. 1980), and Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979). In Rossi, for example, our Court declared that once an applicant has demonstrated an inability to perform his or her prior job, "the burden of proof shifts to the Secretary to show that the claimant, given her age, education and work experience, has the capacity to perform specific jobs that exist in the national economy." 602 F.2d at 57 (emphasis added). Similarly, in Livingston, we observed that "the Secretary must establish that the claimant has the ability to engage in alternative substantial gainful employment activity." 614 F.2d at 345. And in Dobrowolsky, after noting that " "due regard for the beneficent purposes of the legislation' " required that "leniency be shown in establishing the claimant's disability, and that the Secretary's responsibility to rebut it be strictly construed," 606 F.2d at 407 (quoting Hess v. Secretary of HEW, 497 F.2d 837, 840 (3d Cir. 1974)), we stressed that, in order for an administrative determination of non-disability to be supported by substantial evidence,
"(i)t is not enough for (an ALJ, relying on the testimony of a vocational expert,) to point vaguely to a narrow area of possible employment and assert that such work is suitable.... (Rather, it) must be shown by competent medical testimony that the claimant is capable of performing the physical activities that the jobs available to him require."
606 F.2d at 410 (quoting DeMandre v. Weinberger, 414 F. Supp. 784, 787 (E.D.La.1976)). After examining these three cases, the district judge asserted that "(i)t is easily seen" that the analysis employed by an ALJ under the new regulations "differs from the analysis required by decisions of the Third Circuit which explicate (HHS') obligations under the Act." Santise v. Harris, 501 F. Supp. at 276.*fn25
Were we convinced that the district court had correctly interpreted the thrust of our disability-related caselaw, we would be required to ascertain whether HHS, in effect, could "overrule" precedents of this Court by promulgating administrative regulations at odds with those decisions. It is unnecessary to consider or resolve this question, however, for we believe that the Department's new guidelines may be synchronized with our opinions.
In fact, if the situations involved in Rossi, Livingston, and Dobrowolsky were to occur again under the regulations, we believe that the outcome, in each instance, would be the same. In Rossi, a determination of non-disability was reversed because there was neither a finding by the ALJ nor any evidence in the record bearing on the possibility of alternative employment for the claimant. 602 F.2d at 57. In a properly conducted hearing under the medical-vocational regulations, however, similar defects should not arise: before an ALJ can pronounce an applicant "not disabled," he specifically must consider that person's vocational characteristics, and chart those characteristics with precision on an elaborate grid designed to reveal whether alternative employment is available for such an individual. In Livingston, the ALJ failed adequately to develop the record; he rejected an applicant's request for disability benefits without considering whether the applicant was disabled per se (by reason of possessing an impairment listed in Appendix 1 of the regulations, see 20 C.F.R. § 404.1520(d)) and without considering his age, education, and work experience. 614 F.2d at 346. If, under the Department's new guidelines, an ALJ fails to consider such matters, his decision also would be subject to reversal under Livingston. Finally, in Dobrowolsky, the primary concern of the Court was that a vocational expert had arrived at a legal conclusion-namely, that the applicant was not disabled-solely by making "conclusory statements" about certain medical evidence. 606 F.2d at 409. In particular, we objected to the fact that, "although the ALJ asked the expert to take into consideration Dobrowolsky's age, education, and work experience in considering what jobs were available, there is no evidence that these factors were given the careful consideration they deserve." Id. at 409 n.19. Under the new regulations, a similar finding of non-disability would not be sustained, for the same reasons this Court identified in Dobrowolsky.*fn26
What this discussion should make clear is that the regulations challenged here do not shift, or attempt to shift, the Secretary's burden of proof in disability matters. It remains true, even under the regulations, that once the claimant has "carr(ied) the initial burden of demonstrating by medical evidence that he is unable to return to his former occupation," Dobrowolsky, 606 F.2d at 406, the Secretary must establish-with "substantial evidence," 42 U.S.C. § 405(g)-that the applicant, in view of his age, education, work experience, and degree of impairment, "has the ability to engage in alternative substantial gainful employment activity," Livingston, 614 F.2d at 345. To be sure, the regulations set forth a new means of meeting that burden-the taking of administrative notice of the general availability of jobs, as opposed to reliance on the identification of specific tasks by a vocational expert-but the Secretary's ultimate responsibility for rebutting a claimant's prima facie showing of disability remains unchanged. And we have no doubt that, under the new regulations, the Secretary's responsibility will continue to be "strictly construed," Dobrowolsky, 606 F.2d at 407.
As for the "requirement," first articulated in Rossi, that the Secretary identify specific jobs capable of being performed by a disability claimant, we stress that the Social Security Act, by its terms, does not place such an obligation upon the Department. Rather, this "judicially imposed standard (was) designed to ensure that each claimant's own particular characteristics ... are given full consideration" by an ALJ and a reviewing court, Leonard v. Harris, No. 79-2645, slip op. at 4 (W.D.Tenn.1980). And we are persuaded that this same objective can be realized if administrative notice is substituted for statements that would have been made by vocational experts. While determinations of non-disability under the new regulations will no longer be accompanied by a listing of specific jobs that a claimant can perform, it would appear sufficient, for purposes of the substantial evidence test, for the Secretary to demonstrate, to the satisfaction of a reviewing court, that there exist many jobs capable of being filled by an individual with the claimant's characteristics.*fn27 Putting the same point somewhat differently, we see no reason for the Secretary to isolate and describe specific jobs when the regulations themselves stand for the proposition that there exist 200 sedentary unskilled jobs (or 1600 unskilled light jobs, or 2500 unskilled medium-level jobs) available in the economy and capable of being filled by the individual under evaluation.
In this regard, we follow the approach adopted recently by the Sixth Circuit in Kirk v. Secretary of Health and Human Services, 667 F.2d 524 (6th Cir. 1981). That court previously had held that HHS was required to identify "specific types of jobs" suitable for an individual deemed "not disabled" by an ALJ. Hephner v. Mathews, 574 F.2d 359, 363 (6th Cir. 1978). In the course of upholding the validity of the same medical-vocational regulations at issue here, however, the court concluded that it was not constrained, in any meaningful way, by the Hephner specificity requirement. The court's extended discussion on this point is instructive:
Hephner, decided before the grid at issue here became the applicable law, does not require rejection of the grid. Hephner's interpretation and rationale is still applicable and its demands are satisfied by use of the grid. The grid too requires that a claimant's particular characteristics be evaluated before a disability determination is reached; the grid merely identifies the weight to be given each characteristic found. The grid has displaced the Secretary's burden of demonstrating which particular jobs the claimant can perform. But, that does not render the regulations invalid. The grid itself takes into account the same sources which a vocational expert would consult in determining whether a particular claimant's abilities matches a job's requirements, yet provides greater uniformity with fewer administrative costs. We find that, even though expert vocational testimony is no longer necessary, use of the grid substantially comports with prior case law interpreting the Social Security Act.
667 F.2d at 530. Like the Sixth Circuit, and for many of the same reasons, we believe that HHS' disability regulations are not at variance with established caselaw. Accordingly, we hold that the district court erred in concluding that the guidelines could not be reconciled with the relevant precedents of this Circuit.
The decision of the district court will be reversed, and these cases will be remanded to that court for further proceedings consistent with this opinion.