set out preconditions which a beneficiary must meet before the Secretary is required to make a section 301 likelihood determination. Defendants argue that because plaintiff was expected to improve medically at the time she began her vocational rehabilitation program, as evidenced by her placement in the diary system, she did not meet the fourth precondition. Accordingly, defendants' view is that plaintiff was not entitled to a determination of whether continuation of benefits would significantly increase the likelihood that she would not return to the disability rolls.
In response, plaintiff challenges that legitimacy of the Secretary's regulation on the ground that it adds significant criteria on top of that provided by the statute, specifically the requirement that in order to qualify for coverage under the statute, one must be found to be someone who is not expected to recover medically. Faced with this challenge, the issue which the Court must address is whether the eligibility requirements for section 301 benefits dictated by 20 C.F.R. § 416.1338 are inconsistent with the plain words and meaning of the statute. The Court finds that they are and consequently holds that the regulation is invalid.
Congress, in its wisdom, explicitly delegated to the Secretary broad authority to promulgate regulations necessary or appropriate to carry out the provisions of the Social Security Act. 42 U.S.C. § 405(a). While this delegated power to issue regulations has long been recognized and sanctioned as lawful, necessary, and beneficial, it is, however, not without limits. The determination of the validity of regulations is ultimately reserved for the Courts. See Batterton v. Francis, 432 U.S. 416, 53 L. Ed. 2d 448, 97 S. Ct. 2399 (1977). Upon such judicial review, administrative interpretations of statutory terms are given important but not necessarily controlling significance. Id. at 424. Absent an express congressional delegation of power to prescribe particular standards, the Secretary may not go beyond the boundaries of administrative routine on the one hand and the statutory limits on the other in promulgating regulations. Social Security Board v. Nierotko, 327 U.S. 358, 369, 90 L. Ed. 718, 66 S. Ct. 637 (1946). In the present case the Court finds that there was no express delegation of legislative power to the Secretary with respect to interpreting and implementing section 301, and that portion of the regulation at issue materially cuts short the statutory coverage provided by the words of the statute itself. It is for this reason that the Court concludes that the regulation is invalid.
As noted above, 42 U.S.C. § 1383(a)(6) provides that even if a disability beneficiary's impairment has ceased, that individual shall not be terminated if he or she is participating in an approved vocational rehabilitation program and "the Commissioner of Social Security determines that the completion of such program . . . will increase the likelihood that such individual may (following his participation in such program) be permanently removed from the disability benefit rolls." Id. The language of this statute is clear on its face. In plain and unmistakable words, free of ambiguity or qualification, it states that persons in vocational rehabilitation programs (which includes the plaintiff) are entitled to a "likelihood" determination before their benefits are terminated. Plaintiff fits the definition foursquare. She was entitled to a determination before her benefits were terminated. She was denied what Congress gave her by the application of an agency regulation that Congress never sanctioned.
Defendants direct the Court's attention to a conference agreement between the House and the Senate which states that Congress intended to confine application of section 301 to a limited number of beneficiaries. This contemplated class of beneficiaries included only those cases where the disabled beneficiary was not expected at the beginning of the program to recover medically before the end of the program, but then, he or she does recover and is no longer considered disabled, although some residual functional limitation still remains. H. Conf. Rep. No. 96-944, 96th Cong., 2nd Sess. 52, reprinted in  U.S. Code Cong. & Admin. News, p. 1400. In appropriate cases, Congressional reports such as this one are given consideration in determining the meaning of a statute, but only where the meaning is in doubt. Legislative history cannot be used to construe a statute contrary to the plain meaning of its terms. If the language is clear, it is conclusive. United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 83, 77 L. Ed. 175, 53 S. Ct. 42 (1932).
The Secretary's comments preceding the text of the regulations indicate that she perceived an ambiguity in the meaning of the word "likelihood" as used in the statute. 47 Fed. Reg. 31540-41 (1982). It was because of this alleged ambiguity that the Secretary claims she looked to the legislative history for guidance in applying the statute. Id. Despite this explanation the regulation does not make the statutory language any clearer because it uses the same word ("likelihood") in the same context as the statute. The regulation's subparagraph 6, 20 C.F.R. § 416.1338(a)(6), merely restates the wording of the statute with the addition of the word "significantly." Under the regulation, even assuming a beneficiary has met the preconditions set out in subparagraphs 1-5, the Commissioner still must determine under subparagraph 6 "that your completion of the program, or your continuation in the program for a specified period of time, will significantly increase the likelihood that you will not have to return to the disability rolls. 20 C.F.R. § 416.1338(a)(6) (emphasis added). It therefore cannot be said that subparagraphs 4 or 5, which add qualification criteria not included in the statute, clear up any ambiguity as to the meaning of the word "likelihood" or give guidance to application of the statute. To the contrary, these subparagraphs create ambiguity by placing additional subjective conditions on the recipient's entitlement to statutory protection. Further, in so doing, the regulation has effectively excluded certain vocational rehabilitation participants from the statute's coverage altogether. This is impermissible in the face of clear statutory language which mandates that the statute shall apply to any disabled participant enrolled in a vocational rehabilitation program. By promulgating this regulation the Secretary clearly has entered into the legislative realm and beyond the limit of administrative need. In view of the above, the Court is convinced, and so holds, that the regulation at issue is invalid.
B. The Class Action Issue
In her original complaint, plaintiff moved for class certification under Fed.R.Civ.P. 23(b)(2) defining the purported class as follows: all individuals who reside in Pennsylvania whose Social Security and SSI benefits the Social Security Administration has considered, or is presently considering, or will consider terminating while he or she was enrolled, is enrolled or will be enrolled in a vocational Rehabilitation program. Before a suit may be maintained as a class action the four prerequisites set out in Rule 23(a) must be met. Plaintiff bears the burden of proof on this issue. See Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3d Cir.), cert. denied, 421 U.S. 1011, 44 L. Ed. 2d 679, 95 S. Ct. 2415 (1975).
In the present case and on the present record it is clear that plaintiff cannot meet the first Rule 23(a) requirement of numerosity. Without any form of supporting documentation plaintiff merely states that "on information and belief, plaintiff can reasonably aver that the vocational rehabilitation services offered throughout Pennsylvania serve thousands of disabled persons [and] . . . it is also reasonable to presume that many are recipients of Social Security and SSI disability benefits . . . ." Plaintiff's Memorandum in Support of Motion for Certification of a Class, p. 6. This statement, which amounts to mere speculation, fails to convince the Court that the class action vehicle should be set in motion. The criteria set out in Rule 23(a) are designed to safeguard against the indiscriminate use of class action suits and the Court is obligated to carefully scrutinize plaintiff's evidence on the question. Allegations alone, that the numerosity requirement has been met, are not sufficient to satisfy plaintiff's burden. In re Fine Paper Antitrust Litigation, 82 F.R.D. 143, 149 (E.D. Pa. 1979); Peterson v. Lehigh Valley Dist. Council, United Brotherhood of Carpenters and Joiners, 83 F.R.D. 474 (E.D. Pa. 1979). The Court has a strong interest in ensuring that the class action device is not improperly engaged. Certifications which are improvidently granted are not easily undone. In view of the record before it, the Court finds that the numerosity requirement has not been met. Accordingly, class action certification must be and has been denied.
Upon careful consideration of the statutory language and pertinent authority, the Court holds that promulgation of 20 C.F.R. § 416.1338 was not within the authority delegated to the Secretary and is inconsistent with the clear language of the statute. Accordingly, the regulation is invalid.
Class action certification has been denied for the reasons stated.
An Order in accordance with this Memorandum has already been entered.