RICHARD S. SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES,
PETITIONER V. JOHN BROZ, ET AL.

   No. 82-816

   In the Supreme Court of the United States

   October Term, 1982

   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 Eleventh
Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eleventh Circuit

                      PARTIES TO THE PROCEEDINGS

   John Broz, Richard D. Holmes, Corinne Little, Thomas O. Jones, and
Fred Soesbe were appellees in the court of appeals and are respondents
in this Court.

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

                            OPINIONS BELOW

   The opinion of the court of appeals (App. A, infra, 1a-22a) is
reported at 677 F.2d 1351.  The judgments of the district court (App.
B, infra, 23a, 39a, 53a, 68a, 84a) are unreported.  The decisions of
the Social Security Administration Appeals Council (App. C, infra,
101a-110a) and the Administrative Law Judges (App. D, infra,
111a-164a) are unreported.

                             JURISDICTION

   The judgment of the court of appeals (App. E, infra, 165a-166a) was
entered on June 7, 1982.  A petition for rehearing was denied on
August 16, 1982 (App. E, infra, 167a).  The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).

                   STATUTE AND REGULATIONS INVOLVED

   The pertinent provisions of Title II of the Social Security Act (42
U.S.C. 405(a) and 42 U.S.C. (& Supp. IV) 423(d)) and the applicable
regulations (20 C.F.R. 404.1545;  20 C.F.R. 404.1560 to 404.1569;  and
20 C.F.R. Part 404, Subpart P, App. 2) are reproduced in Appendix F
(81-1983 Pet. App. 34a-75a) to the petition for a writ of certiorari
in Schweiker v. Campbell, cert. granted, No. 81-1983 (June 21, 1982).
/1/

                          QUESTION PRESENTED

   Whether the Secretary of Health and Human Services may rely upon
medical-vocational guidelines, rather than individualized proof, to
determine the effect of age on claims for disability benefits under
the Social Security Act.

                               STATEMENT

   1. This case concerns the validity of the age classifications made
in the Social Security Administration's medical-vocational guidelines
for determining entitlement to disability benefits.  20 C.F.R. Part
404, Subpart P, App. 2.  A closely related question concerning the
validity of the guidelines in now before this Court in Shcweiker v.
Campbell, cert. granted, No. 81-1983 (June 21, 1982).  The
government's petition in Campbell describes the operation of the
guidelines and the disability provisions of Title II of the Social
Security Act in some detail (81-1983 Pet. 2-7).  We limit our
discussion here to a description of the age classifications
invalidated by the court of appeals.

   Title II of the Social Security Act provides disability benefits to
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).  /2/ 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 and mental
impairments -- his age, education, and work experience.  Ibid.  The
medical-vocational guidelines were promulgated to govern the interplay
of those factors in disability determinations.  The effect that age
should have on such cases was decided in a rulemaking proceeding on
the basis of data dealing with the relationship of age and employment,
and on the expertise the Social Security Administration had acquired
from its operation of the disability programs.  43 Fed. Reg.
55353-55355 (1978).

   The inquiry that preceded promulgation of the regulations revealed
that employment problems begin to develop at age 45 and intensify at
age 55 (43 Fed. Reg. 55354 (1978)).  Because the adverse effect of
increasing age occurs gradually, the guidelines establish
classifications in five-year intervals reflecting the increasing
significance of age at 45, 50, 55, and 60.  See 20 C.F.R. 404.1563.
They provide, for example, that all claimants over 55 who are severely
impaired, and have limited education and no work experience, are
disabled regardless of their residual functional capacity.  20 C.F.R.
Part 404, Subpart P, App. 2, Tables 1, 2, and 3, Rules 201.01, 202.01,
203.01.  They also provide that all impaired claimants over 50 who are
illiterate and unskilled are disabled, unless they have at least the
residual functional capacity to do medium work.  See Rules 201.09,
202.09, 203.18.  The regulations specifically provide, however, that
the age categories will not be applied "menchanically in a borderline
situation." 20 C.F.R. 404.1563(a).

   2. Respondents' claims for disability benefits were denied by the
Social Security Administration initially and upon reconsideration.
After hearings in each case, administrative law judges ("ALJs")
concluded that respondents were not disabled.  They found that while
respondents were unable to do their past jobs, they were able to
perform at one of the levels of restricted work encompassed by the
guidelines and tables in Appendix 2.  The ALJs made findings as to
respondents' age, education, and work experience.  On the basis of
these findings, the ALJs applied rules in the tables in Appendix 2
which directed conclusions that respondents were not disabled (App. D,
infra, 117a-118a, 132a, 142a, 154a, 163a-164a).  The Appeals Council
denied review (App. C, infra, 101a-110a).

   Respondents then sought judicial review in the United States
District Court for the Southern District of Alabama.  In each case,
the court adopted the recommendation of a magistrate holding the
guidelines invalid and remanding the claim to the agency (App. B,
infra, 23a, 39a, 53a, 68a, 84a).  According to the magistrate's
recommendations, the administrative notice underlying the guidelines
conflicts with 42 U.S.C. (Supp. IV) 405(b), which provides that
eligibility determinations shall be based on evidence "adduced at the
hearing," and with the Administrative Procedure Act, 5 U.S.C. 556(e),
which provides that an agency basing its decision on adjudicative
notice of facts not appearing in the record must permit parties an
opportunity to respond to such facts (App. B, infra, 34a-36a, 49a-51a,
64a-66a, 80a-82a, 98a-99a).

   3. Respondents' cases were consolidated on appeal (App. A, infra,
2a).  Although the court of appeals relied on different grounds than
the district court, it too invalidated in part the guidelines in
Appendix 2.  /3/ The court of appeals found that the portions of the
regulations dealing with residual functional capacity, education, and
work experience are valid, because they leave open for adjudication in
each case the precise effect that an individual's physical and mental
limitations and job skills have on his ability to do a job (App. A,
infra, 11a-12a).  The court held, however, that the regulations are
invalid insofar as they make the claimant's entitlement to disability
benefits turn on his chronological age.  The court noted that
underlying the regulations is the "premise that, at a certain point,
age significantly restricts a worker's ability to adapt and adjust to
a new job and a new working environment" (id. at 12a).  But it would
not always be true, the court said, that that ability would be more
restricted for a person 50 years old than for one 49 years old.
Because the impact of age may vary from one case to another, the court
concluded, it is a matter of adjudicative fact, and not within the
rule-making power given to the Secretary by 42 U.S.C. 405(a) and 42
U.S.C. (Supp. IV) 423(d)(5).  App. A, infra, 13a-14a.  Accordingly,
the court remanded respondents' claims to the agency for individual
consideration of the effect that each claimant's age had on his or her
ability to adapt to new jobs (id. at 15a, 22a).  /4/

                   REASONS FOR GRANTING THE PETITION

   The issue in this case, though distinct in some respects, is
substantially similar to that presented in Schweiker v. Campbell,
supra.  In each case the court of appeals held the medical-vocational
guidelines invalid for failure to permit individualized proof of an
issue the guidelines were designed to remove from adjudication.  Each
decision rests on the erroneous premise that the Secretary, in
promulgating the guidelines, exceeded the rulemaking authority
conferred on him by Congress with regard to the disability program.
/5/

   1. The statutory definition of "disability" requires that a
claimant must have a physical or mental impairment so severe

      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).  In Schweiker v. Campbell, supra, the
Second Circuit held that the Secretary, in determining whether there
is "work which exists in the national economy" that a disability
claimant can perform, is not entitled simply to rely on the tables in
Appendix 2.  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" (81-1983 Pet. App. 9a, quoting Decker v. Harris, 647 F.2d
291, 298 (2d Cir. 1981)).  The Secretary's brief in Campbell argues
that the very purpose of the regulations is to determine conclusively
the types and numbers of occupations available, and their suitability
for claimants whose medical and vocational characteristics are
described in the tables (81-1983 Pet. Br. 9).

   The court of appeals in this case held that the Secretary, in
giving the "consider(ation)" to "age" that the statute requires, is
not entitled simply to rely on the chronological divisions drawn by
the tables in Appendix 2.  Rather, the court held, age is "an
adjudicative factor and therefore must be given individual
consideration through adjudication rather than legislative resolution
through rulemaking" (App. A, infra, 14a).  Though the decision below
focused on a different component of the statutory term "disability"
than did the Second Circuit in Campbell, /6/ the decisions share the
common conclusion that the Social Security Act somehow precludes the
Secretary from declaring in regulations the effect that nonmedical
factors should have on the evaluation of disability.  There is no
indication in either the language of the statute or its legislative
history that the scope of rulemaking authority is more restricted in
one case than in the other.  Indeed, both Campbell and this case deal
with disability requirements found in the same sentence of the statute
(42 U.S.C. 423(d)(2)(A)), and implemented by the same guidelines (20
C.F.R. Part 404, Subpart P, App. 2);  and in each case the Secretary's
authority to make rules derives from the same statutory provisions (42
U.S.C. 405(a);  42 U.S.C. (Supp. IV) 423(d)(5)).  Under these
circumstances, a reversal in Campbell would cast serious doubt on the
correctness of the decision in this case.

   2. The decision below is clearly erroneous.  Congress specifically
stated in the Act that the Secretary should "consider() (a claimant's)
age" in making disability determinations.  42 U.S.C. 423(d)(2)(A).
Yet the court of appeals stated that the Secretary could not
"determine that a person 49 years of age is able to adjust to a new
unskilled sedentary occupation but that a person 50 years old is
not(,) * * * (because) a person's ability to adapt or adjust is
clearly a fact relating to the individual claimant" (App. A, infra,
13a).  It is difficult to believe that when Congress used the word
"age" in the statute it had in mind anything other than chronological
age.  However, the court of appeals' decision in effect requires the
Secretary to base disability determinations not on chronological age,
but on the unique effects that the passage of time had had on the
individual claimant -- i.e., on his "physiological" age.

   It was plainly unwarranted for the court to invalidate the
regulations insofar as they preclude an investigation into that
question, given the "legislative effect" to which the regulations are
entitled.  Schweiker v. Gray Panthers, 453 U.S. 34, 44 (1981);
Batterton v. Francis, 432 U.S. 416, 425-426 (1977).  As the First
Circuit held in Fogg v. Schweiker, No. 81-1232 (Oct. 13, 1981), slip
op. 9 n.5:  /7/

      Had Congress purposely intended to refer to physiological age,
      it * * * would have signalled this departure from the expected
      by clearer language.  Instead Congress simply noted that age was
      a relevant factor and accorded the Secretary broad powers to
      issue regulations which would take age into account as a part of
      disability.  42 U.S.C. Section 423(d)(2).  We cannot find that
      the Secretary exceeded his powers by contravening Congressional
      intent.

   It is true that in drafting the guidelines dealing with age, the
Secretary recognized that there were physical and mental consequences
of senescence, and that those consequences made age significant,
because they were likely to affect claimants' ability to adapt to new
jobs.  43 Fed. Reg. 55359 (1978).  The available data did not,
however, "relate varying specific chronological ages to specific
physiologically-based vocational limitations for performing jobs"
(ibid.).  As a result, the regulations rely on data dealing with, for
example, the rate by age of participation in the labor force, the
unemployment rate by age, the duration of unemployment by age, and the
proportion of hires to applicants by age (id. at 55353-55354).  The
court of appeals concluded that the lack of scientific data on the
relation between the physiological consequences of aging and job
performance was itself an argument for case-by-case determination of
the effect those facts had on disability (App. A, infra, 14a).  But
what it shows even more clearly is the wisdom of Congress in directing
the Secretary to consider chronological age in making disability
determinations.  Any attempt to account in individual cases for the
innumerable consequences of senescence and their bearing on a
claimant's ability to undertake new work would inevitably produce the
very unfairness and inconsistencies in disability cases that the
guidelines were designed to eliminate.  See 81-1983 Pet. Br. 28-37;
Fogg v. Schweiker, supra, slip op. 10.

   It may be that the lines drawn in the guidelines will not produce a
perfect separation of claimants according to their physiological and
mental traits produced by the aging process.  But such a separation is
neither possible nor necessary.  The regulations specifically state
that they are not to be applied "mechanically in a borderline
situation." 20 C.F.R. 404.1563(a).  Moreover, the regulations provide
a method for taking account of impairments that usually accompany age,
even when they afflict a younger person.  For example, arthritis or
premature senility would be considered apart from the tables in
Appendix 2.  If they should strike a 40-year old, he may be entitled
to a determination of disability made without exclusive reliance on
the tables.  See, e.g., 20 C.F.R. Part 404, Subpart P, App. 2, Section
200.00(e).

   When a regulation established by an agency is "judgmental or
predictive," as is the case with the age classifications in the
medical-vocational guidelines, "complete factual support in the record
for the (agency's) judgment or prediction is not possible or required
* * * ." FCC v. National Citizens Committee for Broadcasting, 436 U.S.
775, 813-814 (1978).  Fashioning a rule on the basis of expertise, in
light of available if imperfect facts, is the traditional function of
an administrative agency.  "'Cumulative experience' begets
understanding and insight by which judgments not objectively
demonstrable are validated * * * .  The constant process of trial and
error, on a wider and fuller scale than a single adversary litigation
permits, differentiates perhaps more than anything else the
administrative from the judicial procews." NLRB v. Seven-Up Bottling
Co., 344 U.S. 344, 349 (1953).

   3. The court of appeals' strained reading of the statutory
requirement that the Secretary consider age in making disability
determinations resulted from its inverted approach to the grant of
rulemaking authority in the Act.  Rather than ask what Congress had
instructed the Secretary to accomplish through regulations, the court
began by asking in general terms what kind of issues were proper
subjects for rulemaking (App. A, infra, 8a-11a).  The court stated
that "because both the broad hearing provision and the broad
rulemaking provision in the statute must be given their intended play,
they should operate in areas where they are best suited" (id. at 10a).
 Since age "looks to the individual characteristics of the claimant,"
the court concluded that it was "clearly adjudicative" (id. at 11a)
and hence a factor whose effects were properly determined in
individualized hearings.

   As the court recognized, however, the distinction between
legislative and adjudicative facts is only "a principle to guide in
the construction of th(e) statutory scheme" (App. A, infra, 8a).  It
should not be allowed to control the clear directions that Congress
itself gave for the implementation of the Act.  As the government's
brief in Campbell emphasizes, Congress granted the Secretary broad and
explicit authority to implement the disability provisions of the Act
and expressed its hope that the resulting regulations would provide
specific criteria to govern the effect that statutory factors such as
age have on the evaluation of disability (81-1983 Pet. Br. 13-28).

   The medical-vocational regulations do make the claimant's
chronological age an adjudicative fact.  In most cases it will be
undisputed;  but where it is a matter of uncertainty, age must be
determined individually at an administrative hearing.  20 C.F.R.
404.1563(e);  20 C.F.R. Part 404, Subpart P, App. 2, Section
200.00(a).  On the other hand, the weight given to a claimant's age in
determining disability is a proper issue for rulemaking.  The
guidelines eliminate the unfairness of treating claimants of the same
age differently on the basis of unmeasurable facts about senescence.
They do so on the basis of factual judgments about the types of jobs
open to individuals of given age (with different education, skills,
and impairments), and policy judgments about the levels of
restrictions that satisfy the definition of "disability" paointed with
a broad brush in the Act.

                              CONCLUSION

   The petition for a writ of certiorari should be held pending the
decision in Schweiker v. Campbell, supra, and should then be disposed
of as appropriate in light of that decision.

   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

   NOVEMBER 1982

   /1/ Copies of the Secretary's petition and brief in Campbell have
been sent to counsel for respondents.

   Although respondents Holmes (App. D, infra, 120a), Little (App. D,
infra, 135a), and Soesbe (App. D, infra, 157a) filed claims for
Supplemental Security Income ("SSI") under Title XVI of the Act, 42
U.S.C. (& Supp. IV) 1381 et seq., as well as claims for disability
benefits under Title II (the Federal Old-Age, Survivors, and
Disability Insurance Program), 42 U.S.C. (& Supp. IV) 401 et seq., the
court of appeals did not discuss the regulations applicable under
Title XVI.  For that reason, we speak throughout this brief only of
Title II and do not reproduce the corresponding provisions of Title
XVI and its applicable regulations.  We note, however, that any
decision regarding Title II would apply perforce to Title XVI.  The
statutory provisions are parallel (compare 42 U.S.C. 1383(d)(1),
(e)(1), with 42 U.S.C. 405(a) and 42 U.S.C. (Supp. IV) 423(d)(5)), the
regulations are virtually identical (compare 20 C.F.R. 416.945,
416.960 to 416.969 with 20 C.F.R. 404.1545, 404.1560 to 404.1569), and
the guidelines in 20 C.F.R. Part 404, Subpart P, App. 2 -- which are
at issue in this case -- are incorporate by reference in 20 C.F.R.
Part 416, Subpart I.  See 20 CF.r. 416.969.

   /2/ The Act's definition of disability is the same for both Title
II and Title XVI.  Compare Section 223(d) of Title II, 42 U.S.C. (&
Supp. IV) 423(d), with Section 1614(a)(3) of Title XVI, 42 U.S.C. (&
Supp. IV) 1382c(a)(3).

   /3/ The court of appeals did not find that the guidelines furnished
evidence in violation of 42 U.S.C. (Supp. IV) 405(b);  rather, the
court concluded that they established rules governing the ultimate
conclusion in disability cases.  It noted, moreover, that Section
556(e) of the Administrative Procedure Act -- relied upon by the
district court -- applies to adjudication but not to rulemaking (App.
A, infra, 15a-19a).

   /4/ Although it held that "the Secretary has exceeded the authority
conferred by the statute because the regulations determine an
adjudicative fact" (App. A, infra, 13a), the court concluded that it
could "uphold the regulations as written" if "individual consideration
(were given to) the age-adjustment factor" (id. at 15a).  The court
went on to suggest that the Secretary might consider age as a
"nonexertional impairment that significantly limits basic work skills,
(in which case) the grids are inapplicable" (ibid.).  But since the
very point of the guidelines is to make disability determinations more
rational and consistent by use of "the grids," it is difficult to see
how this proposal amounts to "uphold(ing) the regulations as written."
It is true that an individual claimant afflicted prematurely with
impairments usually associated with age (e.g., arthritis, or premature
senility) could prove that he had nonexertional limitations, and
thereby obtain a determination of disability to which his age would
not otherwise entitle him.  See pages 9-10, infra.  But the court's
suggestion appears to place upon the Secretary the obligation of
proving in each case that the mental and physiological effects of
senescence on the claimant do not entitle him to benefits.  As the
court noted, "(a) claimant must first show an impairment serious
enough to prevent work in his * * * previous job.  Here the burden of
proof is on the claimant.  * * * If this burden is met the burden
shifts to the Secretary to prove that the claimant 'cannot,
considering his age, * * * engage in any other kind of substantial
gainful work'" (App. A, infra, 4a) (emphasis in original).
Presumably, if age means physiological age, it is the effect of that
condition on the claimant's work possibilities which the Secretary
must prove.

   /5/ The issue of this case is also related to an issue presented in
Kirk v. Schweiker, petition for cert. pending, No. 81-6754 (filed May
20, 1982).  Petitioner in that case contends not that the Secretary
lacks statutory authority under 42 U.S.C. 405(a) and 42 U.S.C. (&
Supp. IV) 423(d) to promulgate the age guidelines, but that the age
categories embodied in the guidelines are not supported by valid data
correlating age with the ability to perform specific jobs (81-6754
Pet. 2-3 (Question IH), 19).  The government has suggested that the
Court dispose of the petition in Kirk as appropriate in light of its
decision in Campbell.

   /6/ Indeed, the court of appeals expressly stated its disagreement
with the Second Circuit's conclusion that the Secretary must identify
"particular jobs that a claimant is capable of performing" (App. A,
infra, 16a n.12.).

   /7/ We are lodging a copy of the First Circuit's opinion in Fogg
with the Clerk of the Court and sending a copy to counsel for
respondents.

   Appendix Omitted