RICHARD S. SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES,
PETITIONER v. CARMEN CAMPBELL

   No. 81-1983

   In the Supreme Court of the United States

   October Term, 1981

   The Solicitor General, on behalf of the Secretary of Health and
Human Services, petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Second Circuit
in this case.

   Petition for a writ of Certiorari to the United States Court of
Appeals for the Second Circuit

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutes and regulations involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D
   Appendix E
   Appendix F

                            OPINIONS BELOW

   The opinion of the court of appeals (App. A, infra, 1a-11a) is
reported at 665 F.2d 48.  The opinion of the district court (App. B,
infra, 12a-14a) is unreported.  The decisions of the Social Security
Administration Appeals Council (App. C, infra, 16a-19a) and the
Administrative Law Judge (App. D, infra, 20a-29a) are unreported.

                             JURISDICTION

   The judgment of the court of appeals (App. E, infra, 32a-33a) was
entered on November 30, 1981.  A petition for rehearing was denied on
February 11, 1982 (App. E, infra, 30a-31a).  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

                   STATUTES AND REGULATIONS INVOLVED

   The pertinent provisions of Sections 205(a) and 223(d) of the
Social Security Act, 42 U.S.C. 405(a) and 423(d);  20 C.F.R. 404.1545;
 20 C.F.R. 404.1560 to 404.1569;  and 20 C.F.R. Part 404, Subpart P,
Appendix 2, are reproduced in Appendix F, infra, 34a-75a.

                          QUESTION PRESENTED

   Whether the Secretary of Health and Human Services may in
appropriate cases rely upon published medical-vocational guidelines,
rather than individualized proof, to determine whether a claimant for
disability benefits under the Social Security Act is able to perform
substantial gainful work in the national economy.

                               STATEMENT

   1. Titles II and XVI of the Social Security Act provide disability
benefits to insured individuals who, because of a physical or mental
impairment, are unable to do their previous work or to "engage in any
* * * kind of substantial gainful work which exists in the national
economy * * * ." 42 U.S.C. 423(d)(2)(A), 1382c(a)(3)(B).  In
determining whether a claimant is disabled, the Act requires the
Secretary of Health and Human Services to consider, in addition to a
claimant's physical or mental impairment, the vocational factors of
age, education, and work experience.  Ibid.

   Since the enactment of the disability program in the 1950's
Congress, and in particular the congressional committees with
oversight responsibility for the social security programs, have sought
promulgation of regulations making more specific the criteria to be
used for disability determinations.  See Kirk v. Secretary of Health
and Human Services, 667 F.2d 524, 527 (6th Cir. 1981);  Santise v.
Schweiker, Nos. 81-1904 et al. (3d Cir. Apr. 8, 1982), slip op. 24-25
n.24.  Before adopting the regulations at issue here, the Social
Security Administration over a period of years had developed
administrative materials to be used by state agencies in making
initial and reconsideration determinations on disability.  See 43 Fed.
Reg. 55349, 55350-55351 (1978).  /1/ These materials were not
published as regulations and were not binding on or generally
available to administrative law judges or the federal courts.

   In 1978, after years of study and consultation with Congress, and
after giving interested parties an opportunity for comment, the
Secretary promulgated regulations designed to implement the disability
provisions of the Act. 43 Fed. Reg. 9284 (1978).  These
medical-vocational regulations, which became effective on February 26,
1979 (id. at 55349), /2/ govern the decisional sequence for disability
claims.  /3/ Before the guidelines may be consulted, the claimant must
demonstrate that he is not currently working.  If he is, the claim
will be denied.  20 C.F.R. 404.1520(b).  Second, the claimant must
show, on the basis of medical evidence alone, that his impairment is
"severe," i.e., that it "significantly limits (his) physical or mental
ability to do basic work activities." If it does not, the claim again
will be denied.  20 C.F.R. 404.1520(c).  Third, if the impairment is
as severe as those listed in Appendix 1 of the regulations, 20 C.F.R.
Part 404, Subpart P, the claimant will receive benefits without regard
to his vocational characteristics.  20 C.F.R. 404.1520(d).  Fourth, if
the impairment is less severe than those listed in Appendix 1, the
claimant must show that, because of his impairment, he can no longer
perform work he has done in the past.  If he can still do such work,
his claim will be denied.  20 C.F.R. 404.1520(e).  If he cannot do
such work, there must be further factual determinations about each of
the variables made relevant by the Act and the regulations:  the
claimant's "residual functional capacity" (i.e., the level of work he
can perform, based upon medical evidence, despite his impairment),
age, education, and prior work experience.  42 U.S.C. 423(d)(2)(A);
20 C.F.R. 404.1545, 404.1560 to 404.1568.  With regard to each of
these factors, the claimant may introduce evidence and rebut the case
made by the Secretary.  20 C.F.R. Part 404, Subpart P, Appendix 2,
Section 200.00(a).

   It is only after this detailed inquiry into a claimant's medical
and vocational characteristics that the guidelines come into play.
The tables set out in Appendix 2 of the regulations are consulted to
determine one question:  whether this exist jobs in the national
economy that can be performed by a person of the claimant's residual
functional capacity, age, education, and prior work experience.  The
tables do not purport to answer that question for all claimants who
have reached the last stage in the decisional sequence.  For example,
the tables consider only a claimant's strength in their division
according to "residual functional capacity." Thus, for one whose
impairment results from mental or sensory limitations, a more
individualized determination of available work must be made.  20
C.F.R. Part 404, Subpart P, Appendix 2, Section 200.00(e).

   For those cases in which use of the tables is appropriate, the
Secretary has taken administrative notice of jobs that are available
in the national economy.  For example, underlying the table for
sedentary work -- the most restricted category encompassed by the
tables -- are approximately 200 unskilled occupations, each
representing numerous jobs, that can be performed by claimants with
the exertional capacity for a full range of sedentary work.  20 C.F.R.
Part 404, Subpart P, Appendix 2, Section 201.00(a).  See also Sections
202.00(a) (1600 occupations for those able to do light work);
203.00(a) (2500 occupations for those able to do medium work).  The
weight given to the combinations of age, education, and work
experience in each table is based on further administrative notice of
the significance of those factors for the claimant's ability to adapt
to new work situations.  43 Fed. Reg. 55353-55355 (1978).  The sources
of data on the numbers of unskilled jobs and the vocational
significance of age, education, and work experience are set forth in
the preamble to the regulations, 43 Fed. Reg. 55352-55355 (1978), and
in the text of the regulations, 20 C.F.R. 404.1566(d) (job data);
Appendix 2, Section 200.00(b) (job data).  /4/ The regulations are
accompanied by a detailed textual statement that explains and
justifies each of the medical-vocational rules (App. F, infra,
52a-75a).

   This method of determining whether "substantial gainful work * * *
exists in the national economy," 42 U.S.C. 423(d)(2)(A), is
essentially nothing more than a perfection of the procedure that was
employed before the guidelines were adopted.  In most preregulation
cases that issue was determined through the use of testimony by
vocational experts knowledgeable about the existence and requirements
of jobs in the national economy.  See Hephner v. Mathews, 574 F.2d
359, 362-363 (6th Cir. 1978).  /5/ Such experts would rely, as a basis
for their information, on the kinds of sources that are the foundation
for the guidelines in Appendix 2.  The tables simply afford the added
benefit of the knowledge the agency has gathered in more than two
decades of administering the disability provisions of the Act, and
most importantly, assure consistent determinations across the
multitude of cases.

   2. Respondent filed a claim for disability benefits in October
1979, alleging disability due to a back problem and high blood
pressure (App. A, infra, 2a).  Her claim was denied initially, and
upon reconsideration (ibid.).  On September 26, 1980, an
administrative law judge concluded after a hearing that respondent was
not disabled.  He found that while respondent was unable to perform
her past work, she retained the residual functional capacity for light
work (App. D, infra, 22a-27a).  The ALJ found that respondent was then
52 years old, "closely approaching advanced age," had a marginal
education but was able to communicate in English, and had unskilled
work experience (id. at 28a-29a).  On the basis of these findings, the
ALJ applied Rule 202.10 in Table 2 of Appendix 2, which directed a
conclusion that respondent was not disabled (see App. F, infra, 69a).
The decision of nondisability in respondent's case was based on
administrative notice that there are some 1,600 unskilled occupations
that can be performed by persons with the exertional capacity for a
full range of light work, and on administrative notice of expert
sources on the vocational significance of respondent's age, education,
and work experience (id. at 65a-67a).

   In December 1980, the Social Security Administration Appeals
Council adopted the decision of the administrative law judge (App. C,
infra, 16a-19a).  Respondent then sought judicial review in the United
States District Court for the Eastern District of New York.  On April
29, 1981, the district court concluded that there was substantial
evidence to support the Secretary's decision and dismissed the
complaint (App. B, infra, 15a).

   3. The court of appeals remanded to the Secretary for further
evidentiary proceedings (App. A, infra, 1a-11a).  The court agreed
that there was substantial evidence in the administrative record to
support the finding that respondent had the residual functional
capacity to perform a wide range of light work (id. at 7a).  It also
did not dispute the appropriate classification of respondent's age,
education, and work experience.  The court nevertheless held that the
Secretary, in determining whether there was "work * * * in the
national economy" (see 42 U.S.C. 423(d)(2)(A)) that respondent could
perform, was not entitled to take administrative notice of the jobs on
which the tables in Appendix 2 are predicated.  Rather, the court
held, the Secretary must "'identify specific alternative occupations
available in the national economy that would be suitable for the
claimant'" and give for each "'"a job description clarifying the
nature of the job, (and) demonstrating that the job does not require"
exertion or skills not possessed by the claimant.'" (App. A, infra,
9a, quoting Decker v. Harris, 647 F.2d 291, 298 (2d Cir. 1981)).
Without such specificity, the court believed, "the claimant is
deprived of any real chance to present evidence showing that she
cannot in fact perform the types of jobs that are administratively
noticed by the guidelines" (App. A, infra, 10a).  /6/

                   REASONS FOR GRANTING THE PETITION

   This case involves a question of substantial importance for the
operation of the Social Security Administration's disability programs.
 The medical-vocational regulations set forth criteria intended to
ensure rationality and consistency in the adjudication of hundreds of
thousands of claims for disability benefits each year.  By
invalidating these regulations and instead requiring individualized
proof in each case about the existence of jobs open to the claimant in
the national economy, the court of appeals has required the
replication on an enormous scale of a task already adequately
performed at the rulemaking stage.  This decision ignores the
Secretary's broad statutory authority to adopt rules and regulations
"necessary or appropriate to carry out" the provisions of the Act (42
U.S.C. 405(a)) and conflicts with the decision of every other court of
appeals that has considered the issue.  Review by this Court is
plainly warranted.

   1. The disability hearing system managed by the Department of
Health and Human Services pursuant to the Social Security Act is
"probably the largest adjudicative agency in the western world."
Santise v. Schweiker, supra, slip op. 12, quoting J. Mashaw et al.,
Social Security Hearings and Appeals:  A Study of the Social Security
Administration Hearing System xi (1978).  Approximately 2.4 million
claims for Title II disability insurance benefits and Title XVI
disability benefits were filed by workers in fiscal year 1980.
Department of Health and Human Services, Social Security Annual Report
to the Congress for Fiscal Year 1980, at 23, 25 (1981).  More than a
quarter of a million claimants in fiscal year 1980 pursued their
claims to the point of requesting a hearing before an administrative
law judge.  Id. at 28.  In turn, nearly 8000 claimants found not
disabled by the Secretary filed suit in federal court seeking review
of the adverse administrative decision.  Id. at 30.  With respect to a
large number of those claims, the ultimate question was whether the
claimant, considering his impairment, age, education, and work
experience, should be considered disabled because he could not perform
"substantial gainful work which exists in the national economy." 42
U.S.C. 423(d)(2)(A).  The decision in this case renders useless the
guidelines for making that determination which the Secretary adopted
in 1979, after long and elaborate preparation.  /7/

   2.a. The Social Security Act does not compel these unpalatable
consequences.  The court of appeals' decision in this case ignores the
broad statutory grant of authority to the Secretary to adopt the
guidelines in Appendix 2.  Section 205(a) of the Act, 42 U.S.C.
405(a), states:

         The Secretary shall have full power and authority to make
      rules and regulations and to establish procedures, not
      inconsistent with the provisions of this subchapter, which are
      necessary or appropriate to carry out such provisions, and shall
      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).

   See also 42 U.S.C. 423(d)(5).  This Court has recently reaffirmed
that regulations adopted by the Secretary pursuant to an express
delegation of substantive authority are entitled to "legislative
effect" and must be upheld unless they are arbitrary or capricious.
Schweiker v. Gray Panthers, No. 80-756 (June 25, 1981), slip op. 9;
see also Batterton v. Francis, 432 U.S. 416, 425-426 (1977).

   The medical-vocational regulations plainly satisfy that test.  They
require a specific, individualized factual determination of each one
of the particular characteristics that the Act makes relevant to a
claimant's ability to engage in substantial gainful work:  the nature
of his impairment and his residual functional capacity, his age, his
education, and his prior work experience.  The only issue on which the
regulations do not require individualized proof in every case is the
nature of the job market itself.  That is a matter that is more apt
for decision by rulemaking rather than by adjudication -- whether jobs
exist in the national economy for those classes of people whose
medical and vocational characteristics match one of the descriptions
in the tables.  Such a set of rules unquestionably regulates "the
nature and extent of the proofs and evidence" in disability cases, and
is both "necessary (and) appropriate to carry out (the disability)
provisions." See Cummins v. Schweiker, 670 F.2d 81, 83 (7th Cir.
1982);  Kirk v. Secretary of Health and Human Services, supra, 667
F.2d at 530.

   Part of the impetus behind promulgation of the regulations and the
accompanying guidelines was the widely recognized tendency of the
disability process to reach inconsistent reasults in similar cases.
Santise v. Schweiker, supra, slip op. 12-14.  In 1976, for example,
the Comptroller General reported that a study of ten state agencies
showed complete agreement on the proper disposition of only 22% of a
test group of disability claims.  Comptroller General of the United
States, The Social Security Administration Should Provide More
Management and Leadership In Determining Who Is Eligible For
Disability Benefits 6-10 (1976).  The apparent arbitrariness of such
an adjudicatory system resulted in part from the occasional failure to
consider all the vocational factors Congress considered relevant, in
part from the assignment of inconsistent weight to those factors, and
in part from the necessarily ad hoc judgments made by agencies and
administrative law judges, "based on the testimony of vocational
experts * * * and on their own limited and variable knowledge of the
labor market," about what kinds of jobs exist.  Cummins v. Schweiker,
supra, 670 F.2d at 83.  The medical-vocational regulations and the
guidelines in Appendix 2 respond to those concerns by focusing the
attention of the factfinder on all of the relevant vocational
criteria, by considering the weight those factors are given in the
labor market, and by taking administrative notice -- after thorough
investigation and the opportunity for public comment -- of the
occupations available in the national economy.  The result is 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. 55362 (1978).

   b. The court of appeals stated its opposition to the
medical-vocational regulations in these terms (App. A, infra, 10a):

      (O)ur major concern is that the claimant be given adequate
      notice of the nature and demands of the types of jobs allegedly
      available.  Absent sufficient notice, the claimant is deprived
      of any real chance to present evidence showing that she cannot
      in fact perform the types of jobs that are administratively
      noticed by the guidelines.

   The court's perception was quite accurate:  the very purpose of the
guidelines is to make a conclusive determination "of the availability
of jobs * * * for claimants whose abilities are accurately described
by the grid." Kirk v. Secretary of Health and Human Services, supra,
667 F.2d at 531.  But the court offered no reason why the achievement
of that purpose should render the guidelines invalid.

   It is important, in the first place, to make clear the limited
nature of the determination embodied in the tables.  They are
consulted only after the decision-maker has considered, and the
claimant has had a chance to rebut, all relevant evidence bearing on
the claimant's physical and mental impairments, prior work experience,
education, and age, and only after it has been determined that the
claimant's medical and vocational characteristics are accurately
described by some category in the tables.  The regulations
specifically dictate that "a conclusion of disabled or not disabled is
not directed" if a claimant's vocational profile is not precisely
contained in Appendix 2.  20 C.F.R. 404.1569 and Appendix 2, Section
200.00(d).  For example, if the claimant has an impairment unrelated
to physical strength, the tables cannot be used to deny benefits.  20
C.F.R. Part 404, Subpart P, Appendix 2, Section 200.00(e).  Similarly,
if his impairment is exertional, but falls between the ranges
indicated in the tables, the rules only offer guidance, not a fixed
result.  Section 200.00(e).  /8/ Moreover, the regulations expressly
state that age categories will not be applied "mechanically in a
borderline situation." 20 C.F.R. 404.1563(a).

   It is also important to emphasize that a claimant does have
explicit notice of the relevant requirements for performing all the
unskilled jobs of which the tables in Appendix 2 take administrative
cognizance.  For example, the unskilled jobs involving light work
(Table 2) -- the category of work the court of appeals acknowledged
respondent could perform -- are described in the regulations as
follows:

      Light work involves lifting no more than 20 pounds at a time
      with frequent lifting or carrying of objects weighing up to 10
      pounds.  Even though the weight lifted may be very little, a job
      is in this category when it requires a good deal of walking or
      standing, or when it involves sitting most of the time with some
      pushing and pulling of arm or leg controls.  To be considered
      capable of performing a full or wide range of light work, you
      must have the ability to do substantially all of these
      activities.  If someone can do light work, we determine that he
      or she can also do sedentary work, unless there are additional
      limiting factors such as loss of fine dexterity or inability to
      sit for long periods of time.

   20 C.F.R. 404.1567(b).

   Those individuals whose abilities are accurately described in the
tables, however, may not require the Secretary to repeat in each case
the process that resulted in promulgation of the regulations.  Here,
for example, the Secretary found that respondent had the "residual
functional capacity" to perform "light work," and the court of
appeals, upheld that finding as supported by the record (App. A,
infra, 7a).  An additional requirement that respondent be notified
about, and be given an opportunity to rebut, the approximately 1600
specific types of unskilled "light work" existing in the national
economy would be superfluous.  The existence of such jobs has already
been determined after careful study and after public notice and
comment, based on the same data that "a vocational expert would
consult in determining whether a particular claimant's abilities
matches (sic) a job's requirements." Kirk v. Secretary of Health and
Human Services, supra, 667 F.2d at 530.  Nothing in the Act precludes
the Secretary from determining those issues by a general rule, rather
than by case-by-case adjudication.  /9/ See Schweiker v. Gray
Panthers, supra, slip op. 13.  As the Seventh Circuit recently
remarked (Cummins v. Schweiker, supra, 670 F.2d at 83)

      If the statutory term "disability" described a historical fact
      best or only ascertainable on a case-by-case basis, binding
      criteria might be a problem;  but it does not;  it is a judgment
      that a person's health makes it exceedingly unlikley that he
      could find a job even if he looked hard for one everywhere in
      the United States.  Such a judgment, to be well informed,
      requires a broad knowledge of the labor market.  The Department
      of Health and Human Services has this knowledge and can both
      supplement and draw upon it in a rulemaking proceeding.  It was
      entitled to substitute an institutional judgment for 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.

   3. The Second Circuit's decision in this case conflicts with
decisions of the First, Third, Fourth, Fifth, Sixth, and Seventh
Circuits upholding use of the guidelines in Appendix 2 to determine
disability.  In Santise v. Schweiker, supra, slip op. 29-30 (emphasis
in original;  citation & footnote omitted), the Third Circuit rejected
the precise argument relied on by the Second Circuit in this case:

         As for the "requirement" * * * 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.  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.  * * * (I)t 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.

   In Kirk v. Secretary of Health and Human Services, supra, 667 F.2d
at 530 (emphasis in original), the Sixth Circuit reached precisely the
same conclusion:

      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
      (sic) a job's requirements, yet provides greater uniformity with
      fewer administrative costs.

   To the same effect are cases in the First, Fourth, Fifth and
Seventh Circuits.  Rodriguez v. Secretary of Health and Human
Services, No. 81-1610 (1st Cir. Apr. 2, 1982);  see Geoffroy v.
Secretary of Health and Human Services, 663 F.2d 315, 318-319 (1st
Cir. 1981);  Frady v. Harris, 646 F.2d 143, 144-145 (4th Cir. 1981);
/10/ Salinas v. Schweiker, 662 F.2d 345, 347-349 (5th Cir. 1981);
Cummins v. Schweiker, supra, 670 F.2d at 83.

   The issue is also under consideration in every other court of
appeals except the District of Columbia Circuit.  McCoy v. Schweiker,
appeal pending, Nos. 81-1629 et al. (8th Cir.) (en banc);  Stone v.
Schweiker, appeal pending, No. 82-3017 (9th Cir.);  Blanchette v.
Schweiker, appeal pending, No. 81-2468 (10th Cir.);  /11/Broz v.
Schweiker, appeal pending, Nos. 81-7140 & 81-9558 et al. (11th Cir.).
/12/ Numerous other cases raising the same question have been stayed
in various circuits pending decision of the lead cases cited above.

   The Second Circuit's ruling is thus out of step with the holdings
of at least six other courts of appeals on an issue of substantial
practical importance.  Regardless of the outcome of pending appeals,
the conflict among the circuits will continue to exist, and the
Secretary will be precluded from utilizing the medical-vocational
regulations, on a nationwide basis, if the result is to deny
disability benefits.  This Court should resolve the conflict.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   J. PAUL McGRATH

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   JOHN H. GARVEY

      Assistant to the Solicitor General

   ROBERT S. GREENSPAN

   ANNE BUXTON SOBOL

      Attorneys

   APRIL 1982

   /1/ There are four levels of administrative consideration for
disability claims.  The first two -- the initial and reconsideration
determinations -- are made for the Social Security Administration by
state agencies.  42 U.S.C. 421(a).  The third level is a hearing
before an administrative law judge in the Social Security
Administration.  42 U.S.C. 405(b).  The fourth level is review by the
Appeals Council of the Social Security Administration.  Judicial
review of the final administrative decision is authorized by 42 U.S.C.
405(g).  See Califano v. Sanders, 430 U.S. 99, 101-102 (1977).

   /2/ The agency later rewrote the regulations to make them clearer
and easier to use.  45 Fed. Reg. 55566 (1980).

   /3/ The Act's definition of disability is the same for both the
Federal Old-Age, Survivors, and Disability Insurance program (Title
II) and the Supplemental Security Income ("SSI") program (Title XVI).
Compare Section 223(d) of Title II, 42 U.S.C. 423(d), with Section
1614(a)(3) of Title XVI, 42 U.S.C. 1382c(a)(3).  The
medical-vocational regulations apply to disability determinations
under both programs;  20 C.F.R. Part 404, Subpart P, governs Title II
claims;  20 C.F.R. Part 416, Subpart I, which is virtually identical
to Subpart P, applies to SSI claims.  Respondent claimed benefits only
under Title II.

   /4/ For example, the determinations about unskilled jobs at various
levels are "supported by the 'Dictionary of Occupational Titles' and
the 'Occupational Outlook Handbook,' published by the Department of
Labor;  the 'County Business Patterns' and 'Census Surveys' published
by the Bureau of the Census;  and occupational surveys of light and
sedentary jobs prepared for the Social Security Administration by
various State employment agencies." 20 C.F.R. Part 404, Subpart P,
Appendix 2, Section 200.00(b).

   Similar sources bolster the Secretary's recognition of the effect
that the several vocational characteristics have on the ability to
adapt to work other than past work.  Concerning the effect of
education the regulations rely, in addition to the sources listed
above and to statistics compiled by the Department, on such materials
as "The Long Term Unemployed, Educational Attainment (October 1964)
published by the Manpower Administration of the Department of Labor in
cooperation with the Oklahoma Employment Security Commissioner (pages
vi and 18);  Monthly Labor Review of January 1974, an article entitled
'Educational Attainment of Workers, March 1973' (pages 58-81);
Automation Manpower Services Program Report by the New Jersey State
Employment Service entitled 'The "Mack" Worker, The Impact of His Job
Loss 2 1/2 Years Later' (December 1965) (pages 14 and 15);  A Survey
of the Employment of Older Workers (1965) by the State of California
Department of Employment and Citizens' Advisory Committee on Aging;
The Impact of Technological Change in the Meatpacking Industry,
published by the Division of Employment, Department of Labor, in March
1966 (page 16)." 43 Fed. Reg. 55354 (1978).

   /5/ The Secretary was, however, permitted to have a determination
of nondisability on administrative notice where it was established
that a claimant could do a full range of work at some particular
exertional level and that his vocational characteristics were not
particularly adverse.  See, e.g., Parker v. Harris, 626 F.2d 225, 233
(2d Cir. 1980);  White v. Harris, 605 F.2d 867, 868-869 (5th Cir.
1979).

   /6/ The court did not explain why notice of specific occupational
possibilities should be required if the guidelines, which render
superfluous a hearing on that question, are valid.  It can only be
presumed that the court found the guidelines in some way to have
exceeded the Secretary's authority to enforce the Act by promulgating
regulations.  But see 42 U.S.C. 405(a).  In any event, the effect of
the court's decision is to preclude the use of the textual and tabular
guidelines in 20 C.F.R. Part 404, Subpart P, Appendix 2, in all stages
of the disability decisionmaking process.  And since the regulations
in Subpart P, 404.1501 to 404.1598, are in many ways keyed to the
ultimate determination made in Appendix 2, they too are pro tanto
invalid.  This is particularly true of 20 C.F.R. 404.1560 to 404.1569.

   /7/ The requirement that the Secretary prove the availability of
work through the testimony of vocational experts or similar means
would entail particular hardships for the disability hearing system in
the Second Circuit, because that court has imposed limits on the time
within which hearings must be held and determinations made in Title II
and Title XVI cases.  Sharpe v. Harris, 621 F.2d 530 (2d Cir. 1980);
Barnett v. Califano, 580 F.2d 28 (2d Cir. 1978);  White v. Mathews,
559 F.2d 852 (2d Cir. 1977), cert. denied, 435 U.S. 908 (1978).

   /8/ Appendix 2, Section 201.00(h) gives the following example:

      Example 1:  An individual under age 45 with a high school
      education can no longer do past work and is restricted to
      unskilled sedentary jobs because of a severe medically
      determinable cardiovascular impairment (which does not meet or
      equal the listings in Appendix 1).  A permanent injury of the
      right hand limits the individual to sedentary jobs which do not
      require bilateral manual dexterity.  None of the rules in
      Appendix 2 are applicable to this particular set of facts,
      because this individual cannot perform the full range of work
      defined as sedentary.  Since the inability to perform jobs
      requiring bilateral manual dexterity significantly compromises
      the only range of work for which the individual is otherwise
      qualified (i.e., sedentary), a finding of disabled would be
      appropriate.

   /9/ The court below did not suggest that the general rule
applicable to respondent's case is unreasonable or unsupported by the
occupational data consulted during the administrative process.

   /10/ In Frady, the Fourth Circuit upheld the use of the tables.  In
Hall v. Harris, 658 F.2d 260, 267-268 (4th Cir. 1981), another panel
of the Fourth Circuit questioned their validity in dictum.  In
Epsilantis v. Schweiker, No. 80-1600 (Apr. 13, 1982), the court
appointed counsel for a pro se claimant, heard initial argument en
banc to resolve the tension between Frady and Hall, and upheld the
rule in Frady by an equally divided court.

   /11/ The Tenth Circuit has already signalled its approval of the
tables in dictum.  See Hilton v. Schweiker, No. 81-1139 (10th Cir.
Feb. 26, 1982), slip op. 9-10;  Chapman v. Schweiker, No. 81-1025
(10th Cir. Feb. 26, 1982), slip op. 9.

   /12/ The Eleventh Circuit, in contrast to the Tenth, has in dictum
expressed "serious doubts" about determinations based solely on the
tables in Appendix 2.  See Cowart v. Schweiker, 662 F.2d 731, 736 n.1
(11th Cir. 1981).

   Appendix Omitted