author: JUNE L. GREEN, District Judge.

text:
    UNITED CHURCH BOARD FOR WORLD MINISTRIES, et al., Plaintiffs, v. SECURITIES AND EXCHANGE COMMISSION, Defendant.
    Civ. A. No. 84-3273.
    United States District Court, District of Columbia.
    Sept. 16, 1985.
    Cornish F. Hitchcock, Alan B. Morrison, Public Citizen Litigation Group, Washington, D.C., Paul M. Neuhauser, Iowa City, Iowa, for plaintiffs.
    Ronald Massumi, Ruth Eisenberg, Office of Gen. Counsel, S.E.C., Washington, D.C., for defendant.
   OPINION

JUNE L. GREEN, District Judge.

This matter is before the Court on plaintiffs’ motion for summary judgment, defendant’s opposition thereto and cross-motion for summary judgment, plaintiffs’ reply and opposition to the cross-motion, and the entire record herein. For the reasons stated below, the Court grants plaintiffs’ motion for summary judgment and denies the cross-motion of defendant.

Statement of Facts

Plaintiff filed the instant action for declaratory and injunctive relief, challenging the procedures used by defendant Securities and Exchange Commission (“SEC”) in revising its Rule 14a-8. Plaintiffs alleged that a specific amendment to Rule 14a-8 was adopted without adequate notice, without adequate explanation or analysis of public comments, and without adequate support in the record. Complaint ¶ 1.

In general, Rule 14a-8 regulates the inclusion of shareholder proposals in proxy materials. 17 C.F.R. § 240.14a-8. The amendment in question involves Rule 14a-8(c)(12), which allows issuers to omit a shareholder proposal from their proxy materials in certain circumstances. Prior to the SEC’s revision, Rule 14a-8(c)(12) read as follows:

If substantially the same proposal has previously been submitted to security holders in the issuer’s proxy statement and form of proxy relating to any annual or special meeting of security holders held within the preceding 5 calendar years, it may be omitted from the issuer’s proxy materials relating to any meeting of security holders held within 3 calendar years after the latest such previous submission:
Provided, That — (i) If the proposal was submitted at only one meeting during such preceding period, it received less than 3 percent of the total number of votes cast in regard thereto; or
(ii) If the proposal was submitted at only two meetings during such preceding period, it received at the time of its second submission less than 6 percent of the total number of votes cast in regard thereto; or
(iii) If the proposal was submitted at three or more meetings during such preceding period, it received at the time of its latest submission less than 10 percent of the total number of votes cast in regard thereto____

17 C.F.R. § 240.14a-8(c)(12).

In October 1982, the SEC published a notice of proposed rulemaking that proposed amendments to, or the abolition of, Rule 14a-8. 47 Fed.Reg. 47,420 (1982) (proposed Oct. 26, 1982). In response to the overall notice, the SEC received 397 comments. SEC Division of Corporate Finance, Summary of Comments: Shareholder Proposal Release at 1.

Thereafter, the SEC issued a final rule on August 16, 1983, amending Rule 14a-8. The final rule adopted two specific amendments to subsection (c)(12). First, the opening phrase was changed to read, “If the proposal deals with substantially the same subject matter as a prior proposal”. Second, the final rule raised two of the three threshold percentages which must be obtained for a shareholder proposal to be published in subsequent years. The three-percent threshold required of a first-time proposal was raised to five percent and the six-percent threshold required for a second-time proposal was raised to eight percent. The ten percent threshold required for a third-time proposal was retained. 48 Fed. Reg. 38,218, 38,223 (1983).

In the statement accompanying the final rule, the SEC explained that the percentage thresholds were raised because of “the increased voting activities of institutional investors with respect to security holder proposals and the greater potential support for such proposals.” Id. at 38,221.

The new rule applied to shareholder proposals submitted for inclusion in proxy materials that were filed preliminarily with the SEC on or after January 1,1984. Id. at 38,183.

In their motion for summary judgment, plaintiffs state that but for the revision in the threshold percentages, their individual proposals would have garnered enough votes to permit resubmission of a new vote the following year. Under the new rule, plaintiffs must wait at least three years before resubmitting their proposals.

Plaintiffs request that the Court vacate the revision of the threshold percentages because plaintiffs were denied administrative due process as required under the Administrative Procedure Act (“APA”), 5 U.S.C. § 553 (1977). Specifically, plaintiffs contend that the percentages in Rule 14a-8(c)(12) were revised without (1) adequate notice of the proposed change, (2) adequate explanation of the SEC’s basis and reasons or adequate support in the record, and (3) provision for prospective application only.

Conclusions of Law

The APA requires a notice of proposed rulemaking to contain “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” 5 U.S.C. § 553(b)(3).

Whether notice is adequate depends on the particular circumstances of each case. “[T]he answer ... must turn on how well the notice that the agency gave serves the policies underlying the notice requirement.” Small Refiner Lead Phase-Down Task Force v. Environmental Protection Agency, 705 F.2d 506, 547 (D.C.Cir.1983).

The Court of Appeals for the District of Columbia Circuit has interpreted the APA notice requirements to serve three basic purposes. First, the notice-and-comment procedure improves the quality of agency rulemaking by testing proposed rules through exposure to public comments. Second, the notice requirements provide an opportunity to be heard, which is basic to fundamental fairness. Third, notice and comments allow affected parties to develop a record of objections for judicial review. Id.

Notice in the instant case consisted entirely of a two-sentence request for comments on “appropriate levels” for the percentage thresholds. Specifically, the SEC stated: “From time to time, the Commission has received suggestions from proponents and issuers alike that the percentage tests reflected in Rule 14a-8(c)(12) should be revised. The Commission is requesting comment on the question of the appropriate levels for the percentage tests.” 47 Fed. Reg. at 47,430.

Adequate notice must reveal the agency’s views “ ‘in a concrete and focused form so as to make criticism or formulation of alternatives possible.’ ” Small Refiner Lead Phase-Down Task Force v. Environmental Protection Agency, 705 F.2d at 548 (quoting Home Box Office, Inc. v. Federal Communications Commission, 567 F.2d 9, 36 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977)). As stated previously, an important reason for adequate notice is to ensure informed agency decision making. Therefore, “[ajgency notice must describe the range of alternatives being considered with reasonable specificity. Otherwise, interested parties will not know what to comment on, and notice will not lead to better-informed agency decisionmaking.” Id. at 549.

The notice of proposed rulemaking in the instant action was not “ ‘sufficiently descriptive of the ‘subjects and issues involved’ so that interested parties may offer informed criticism and comments.’ ” Simmons v. Interstate Commerce Commission, 757 F.2d 296, 300 (D.C.Cir.1985) (quoting Ethyl Corporation v. Environmental Protection Agency, 541 F.2d 1, 48 (D.C.Cir.), cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976)). The notice did not propose new percentage thresholds. Nor did it reveal the theories that prompted the SEC to propose a change. The agency revealed nothing specific to which the public could comment. The notice merely requested suggestions on appropriate percentage tests. Not even a clue was given as to whether the agency proposed the percentages to be raised, lowered, or maintained.

The comments themselves evidence the vagueness of the notice. Many of the commentators, while proposing specific increases in the percentage thresholds, failed to give any reason for doing so. Those who did explain, limited their reasoning for raising the percentages to the time and expense of publishing shareholder proposals. Nowhere in the comments did anyone suggest that the percentages be raised because of increased voting activities of institutional shareholders. Indeed, information on institutional investors was mentioned only by one commentator who proposed lowering the percentages. The basis of the SEC’s decision, therefore, was not prompted by the comments received. Even someone monitoring the comments could not have responded to the agency’s theory.

In its motion for summary judgment, the SEC argues the soundness of its decision and cites several outside sources, all of which apparently were available to the SEC before the published notice of proposed rulemaking. See Memorandum of Points and Authorities in Support of Defendant’s Motion for Summary Judgment and in Opposition to Plaintiffs’ Motion for Summary Judgment (“Defendant’s Motion”) at 5-6, 28-34. This leads the Court to believe that the SEC’s decision to raise the percentage thresholds was based on previously formed assumptions without revealing those assumptions for public scrutiny.

Failure to make known agency views at the time of publication of notice circumvents the purpose of the APA notice requirements. Proposed rule changes cannot be “tested” when the public is unaware of both the proposed revision and the theory under which the agency makes its proposal.

A general request for comments is not adequate notice of a proposed rule change. Interested parties are unable to participate meaningfully in the rulemaking process without some notice of the direction in which the agency proposes to go. See Forester v. Consumer Product Safety Commission, 559 F.2d 774, 787 (D.C.Cir. 1977) (Notice must afford “interested parties a reasonable opportunity to participate in the rulemaking process.”).

The SEC argues that its direction was unknown at the time of publication of notice and that the wording of the notice encouraged comments from all sides of the issue, which would develop a complete record for informed decision making. Defendant’s Motion at 19 n. 11. The Court’s decision should not discourage agencies from developing a complete record before issuing a final rule change. The manner of compiling that record, however, must allow for concrete criticism and comments.

If the SEC’s direction was unknown, the agency was unprepared to propose a revision, let alone issue a final rule change. After receiving general comments, the SEC should have invited comment on a specific revision of the percentage thresholds and the agency’s theory for the proposal. Such action would have tested properly the agency’s decision. Any objections to the specific proposal then could have been raised and the percentages adjusted accordingly.

The Court also finds the notice of proposed rulemaking ambiguous. The SEC allegedly proposed two changes to Rule 14a-8(c)(12): a change in the introductory phrase and a change in the percentage thresholds. The former proposed change was explained under a subheading entitled “Rule Changes Under Consideration.” 47 Fed.Reg. at 47,429-30. The latter change, however, was listed under a different subheading entitled “Other Issues.” Id. at 47,430.

The SEC argues that the latter subheading reasonably should be interpreted as meaning “Other Issues Under Consideration.” The Court disagrees.

Not only did the SEC separate the two notices, the agency also published a draft text that included the proposed revision of the introductory phrase of subsection (c)(12) but not any change in the percentage thresholds. Id. at 47,432. The SEC argues that it clearly stated in the background section of the notice of proposed rulemaking that all proposed changes would not be in the draft text. See id. at 47,421. The introduction of the draft text, however, states that “[i]n accordance with the foregoing, Title 17, Chapter II of the Code of Federal Regulations is proposed to be amended as follows”. Id. at 47,430. No amendment to the percentages followed. In addition, several pages earlier, in the section discussing changes to Rule 14a-8(c), the agency mentioned that changes to subsection (c) “under consideration by the Commission are reflected in [the draft text].” The SEC’s intent to specifically revise the percentage thresholds, therefore, was unclear. See American Federation of Labor and Congress of Industrial Organizations v. Donovan, 757 F.2d 330, 339 (D.C.Cir.1985).

The comments again evidence the ambiguousness of the notice. While the SEC received 66 comments on the percentage thresholds, 43 letters, or 65 percent, were from issuers. New comments were received from institutional shareholders, or shareholders in general, who would be most affected by a revision. If notice were given of an increase in the percentage thresholds, more shareholders likely would have responded. See Chocolate Manufacturers Association v. Block, 755 F.2d 1098, 1105 (4th Cir.1985). The SEC would have received more comments from those likely to oppose the proposal, rather than simply favorable comments from issuers.

Furthermore, none of the commentators presented any data to support their suggestions on the appropriate percentage levels. New gave any reasons at all.

The general nature of the comments and the absence of greater shareholder response implies fairly that interested parties thought a future proposal was forthcoming and that the present notice and comments would be used to determine if any revision were necessary. See Mobil Oil Corporation v. Federal Power Commission, 483 F.2d 1238, 1244 (D.C.Cir.1973). When interested parties are unaware that the present rulemaking procedures will result in specific regulations, the purposes of the APA notice requirements cannot be served.

The Court therefore grants plaintiffs’ motion for summary judgment based on inadequate notice of proposed rulemaking. The Court need not consider plaintiffs’ other arguments. An appropriate order to this effect was filed on September 13,1985.

      . Plaintiffs The American Baptist Home Mission Society; General Synod of the Reformed Church in America; Sisters of St. Dominic of Blauvelt, New York; and Oregon Province of the Society of Jesus submitted a proposal in the spring of 1983 to American Telephone & Telegraph Company. The proposal received 4.08 percent of the shareholder votes cast on its first submission. Plaintiffs’ Statement of Material Facts as to Which There is No Genuine Issue, ¶¶ 17-20.
      Plaintiff General Synod of the Reformed Church in America submitted a proposal at the annual meetings of Perkin-Elmer Corporation in November 1982 and November 1983. The proposal received 7.1 percent of the votes cast on its second submission. Id. at ¶¶ 21-22.
      Plaintiff United Church Board for World Ministries submitted a proposal at the annual meeting of International Business Machines Corporation in the spring of 1984. The proposal received 3.34 percent of the votes cast on its first submission. Id. at ¶¶ 23-24.
      Plaintiffs United Church Board for World Ministries and The American Baptist Home Mission Society submitted a proposal in the spring of 1984 to Chevron Corporation shareholders. The proposal received 4.11 percent of the votes cast on its first submission. Id. at ¶¶ 25-26.

      . The sources included Schwartz & Weiss, An Assessment of the SEC Shareholder Proposed Rule, 65 Geo.LJ. 635 (1977); Investor Responsibility Research Center, Inc., How Institutions Voted on Shareholder Resolutions in the 1982 Proxy Season (1982); and Staff Report on Corporate Accountability (1980).


source: Caselaw Access Project

author: SPELLMAN, District Judge.

license: Public Domain

text:
    Major P. MITCHELL, Plaintiff, v. Margaret M. HECKLER, Defendant.
    No. 84-0142-CIV.
    United States District Court, S.D. Florida, Miami Division.
    Sept. 16, 1985.

      Joel Lumer, Miami, Fla., for plaintiff.
    Barry Seltzer, Asst. U.S. Atty., Miami, Fla., for defendant.
   ORDER COMPELLING SECRETARY TO HOLD HEARING IN ACCORDANCE WITH THIS COURT’S ORDER OF SEPTEMBER 6, 1984

SPELLMAN, District Judge.

This cause was originally before the Court to review the final decision of the Secretary of Health and Human Services (“HHS”), terminating disability benefits previously awarded to the plaintiff, pursuant to 42 U.S.C. §§ 416(i) and 423. On September 6, 1984, 592 F.Supp. 618, this Court reversed the decision of the Secretary and remanded the case so that an Administrative Law Judge (“AU”) could rehear the case and apply the correct legal standards. No appeal was taken by the Secretary. Rather, it appears that the Secretary merely neglected to provide Mitchell with a hearing date. Subsequently, Mitchell moved to compel the Secretary to conduct a hearing before an AU on May 15, 1985. The Secretary’s response, filed on June 4, 1985, contained the Secretary’s opinion that the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460 (“Reform Act”), precluded the plaintiff from securing a hearing before an AU. Instead, so the Secretary contends, Mitchell is obligated to return to square one, and begin his quest for disability benefits in the forum of a state agency. The Secretary further maintains that a hearing by an AU at this point would be premature, because the state agency may find that Mitchell has no valid claim. For the reasons set forth below, the Court finds that the Secretary’s position is untenable and unpersuasive.

I.

Section 2(d)(2) of the Reform Act provides in pertinent part:

(2) The amendments made by this section shall apply to—
(A) determinations made by the Secretary on or after the date of the enactment of this Act;
(B) determinations with respect to which a final decision of the Secretary has not yet been made as of the date of the enactment of this Act.
(C) determinations with respect to which a request for judicial review was pending on September 19, 1984.
(D) determinations with respect to which a timely request for judicial review is or has been made.

Social Security Disability Benefits Reform Act, Pub.L. No. 98-460.

The Court believes that, from the clear language of the section cited above, the amendments do not apply to the case at issue. Still, this case, and probably many that will follow, present a dilemma for the Court. Would it be in the best interests of the claimant to have his or her case presented under the new standards required by the amendments; or, would that merely harm the claimant by subjecting him or. her to the delays apparently inherent in the process?

It cannot be disputed that no judicial review was pending on September 19, 1984 since the order remanding the cause was issued September 6, 1984. Further, the Secretary had entered her final decision well before that date, thereby causing Mitchell to initiate his appeal. Thus, this action does not fall within the time frames contemplated by the amendments.

There exists an even more compelling reason to invalidate the Secretary’s position, and that reason involves the purposes and spirit behind the amendments held so imperative by the Secretary. The legislative history of the Reform act states:

[T]he bill is intended to provide a more human and understandable application and appeal process for disability applicants and beneficiaries appealing termination of their benefits.

H.R.Rep. No. 98-618, 98th Cong., 2d Sess., reprinted in 1984 U.S.Code Cong. & Ad. News 3038, 3039. This Court will fulfill its responsibilities and provide Mitchell with as human and understandable procedures as possible. In furtherance of this goal, the Court finds that it is most appropriate to compel the Secretary to require an AU to conduct a hearing. The importance and application of equitable principles are nothing new in cases such as the one before the Court. In Claassen v. Heckler, 600 F.Supp. 1507 (D.Kan.1985), the Court stated in reference to the Reform Act:

This new law sets forth a standard that is more beneficial to the Plaintiff than the previous standard applied by the Secretary despite universal rejection by the Courts. This Court has ruled that Plaintiff is entitled to benefits under the law as it existed prior to the passage of the Reform Act, which in effect requires the Secretary to follow the law that had already been established in the federal courts. No useful purpose could be served by remanding for the Secretary to consider Plaintiffs claim again under the more liberal standard.

Id. at 1513. Although this cause has been remanded to the Secretary, it has been done with the understanding that the AU would apply the proper legal standards as outlined in the Court’s Order. There is no reason, certainly no justifiable reason, why the Plaintiff should be forced to start from scratch again. All the AU needs to do is hear the case and apply the proper legal standards as they apply to Mitchell’s case.

In light of the discussion set forth above, the Court is ordering further that the Office of Hearings and Appeals schedule a hearing for Mitchell within one hundred and twenty (120) days from the date of this Order. The Court is well aware of the Supreme Court’s prohibition against a lower court mandating time limitations with respect to the adjudication of disability claims. Heckler v. Day, 467 U.S. 104, 104 S.Ct. 2249, 81 L.Ed.2d 88 (1984). Nonetheless, a thorough reading of the case suggests that, on a case by case basis, a federal court may correct what it deems to be violations of the Act. Id. 104 S.Ct. at 2258 n. 33.

Accordingly, it is the opinion of this Court that the Secretary shall require an AU to conduct a hearing, to be scheduled by the Office of Hearings and Appeals within one hundred and twenty days from the date of this Order, at which the AU shall apply the proper legal standards so stated by this Court in its Order of September 6, 1985 and the law of this Circuit.

      . Portions of this subsection deemed irrelevant to the discussion at hand have been deleted.


author: SWEET, District Judge.

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. COLGATE-PALMOLIVE COMPANY, Defendant.
    No. 81 Civ. 8145 (RWS).
    United States District Court, S.D. New York.
    Sept. 16, 1985.
   ORDER

SWEET, District Judge.

Pursuant to the jury verdicts and the opinion rendered in this action on June 26, 1985, the Equal Employment Opportunity Commission (“EEOC”) received a partial judgment against the Colgate-Palmolive Company (“Colgate”). Before entering judgment, the parties have requested this court to determine which party is entitled to court costs pursuant to Fed.R.Civ.P. 54(d).

While Rule 54(d) allows costs to be received by the prevailing party as a matter of course, an issue is presented by the present case as to which party prevailed. Here, the EEOC brought an age discrimination action on behalf of ten individuals alleging forty-eight instances of discriminatory hiring practices and obtained verdicts in favor of two employees involving four of the forty-eight allegedly discriminatory acts. In addition, the EEOC obtained limited injunctive relief prohibiting Colgate from future violations of the Age Discrimination in Employment Act for a period of three years.

Where a plaintiff has brought an action based on several theories of recovery and prevails on only one theory, courts have found that the plaintiff was the prevailing party entitled to costs. See United States v. Mitchell, 580 F.2d 789, 793 (5th Cir. 1978); Berg v. Wall Street Traders, Inc., 46 F.R.D. 47 (S.D.N.Y.1968). On the other hand, where an action is based upon multiple individual claims or is brought by several plaintiffs, courts have recognized that it is inappropriate to award full costs when plaintiffs have prevailed on only a small portion of those claims. See e.g., Croker v. Boeing Co., 444 F.Supp. 890, 895 (E.D.Pa. 1977), remanded for determination concerning which plaintiffs would bear defendants’ costs, 662 F.2d 975, 998-99 (3d Cir.1981) (en banc).

Since Rule 54(d) allows a court to exercise its discretion in awarding costs, that discretion will be exercised to avoid a rigid, merely arithmetic determination. See Simmons v. American Export Lines, 26 F.R.D. 111 (S.D.N.Y.1960); 6 J. Moore, Moore’s Federal Practice, II 54.70[4] (2d ed. 1985). Given the fact that this was an action based on numerous discrete claims and that plaintiff prevailed on only a small number of those claims, the costs in this action should be allocated between the two parties. The EEOC brought this action on behalf of ten individual employees. Viewing the allegations brought on behalf of each employee as a discrete claim, the EEOC prevailed on two claims, Colgate prevailed on seven claims, and the jury was unable to return a verdict on one employee’s claim. In addition, the EEOC obtained a very limited injunction against Colgate’s future employment practices.

In light of these circumstances, EEOC will be allowed to recover one-third of its costs and Colgate will be allowed to recover two-thirds of its costs.

Submit judgment on notice.

IT IS SO ORDERED.


text:
    Clarence Duke McGANN, a/k/a John French, a/k/a Jesse J. Jenkins, Plaintiff, v. Peter S. BARANOWICZ, Criminal Law Investigator, in the Office of Mario Merola, District Attorney, Bronx County, New York, Defendant.
    No. 84 Civ. 2316 (RWS).
    United States District Court, S.D. New York.
    Sept. 16, 1985.
    Clarence Duke McGann, pro se.
    Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City, for defendant; Linda Genero Sklaren, Asst. Corp. Counsel, New York City, of counsel.
   OPINION

SWEET, District Judge.

Plaintiff Clarence McGann (“McGann”) filed this pro se action pursuant to 42 U.S.C. § 1983, alleging that Peter S. Baranowicz (“Baranowicz”), a Criminal Law Investigator in the Bronx County District Attorney’s office, violated his constitutional rights. McGann specifically complains of the defamatory character of a statement made by Baranowicz in an affidavit submitted to a New York Supreme Court in opposition to McGann’s motion to vacate his New York state conviction and to set aside his sentence. Defendant moves for summary judgment pursuant to Fed.R.Civ. Pro. 56(b) on the ground that the absence of any issue of material fact warrants dismissal as a matter of law. For the reasons set forth below, the motion for summary judgment is granted and the complaint against Baranowicz is dismissed with costs.

Pleadings

Since this is a motion for summary judgment brought by Baranowicz, all reasonable inferences must be drawn in favor of McGann. Patrick v. LeFevre, 745 F.2d 153, 158 (2d Cir.1984). The essential facts giving rise to the complaint are not in dispute. In opposition to McGann’s motion to vacate his conviction, Baranowicz submitted an affidavit which stated that “after a panel of prospective jurors had been empaneled and later dismissed, appellant fled the jurisdiction and was tried in absentia.” McGann alleges that this statement was false as to both the empaneling of a jury and the absence of McGann from the jurisdiction of the state criminal court and that Baranowicz knew his statement was false.

At the same time McGann recognizes the position of Baranowicz within the office of the District Attorney in Bronx County as a Criminal Law Investigator, a position which allowed him to perform all of the duties of a district attorney while awaiting admission to the bar and formal appointment to the position of district attorney. An order of the Appellate Division of the Supreme Court of the State of New York, dated July 12, 1971, permits criminal law investigators to submit briefs, memoranda and other documents to the state courts under the supervision of an assistant district attorney. McGann concedes that Baranowicz filed his affidavit under the supervision of an assistant district attorney.

Conclusions

Section 1983 imposes civil liability on “[ejvery person” who acts under color of state law to deprive another of a constitutional right. The liability created, however, is qualified in certain instances by common law immunities. See Scheuer v. Rhodes, 416 U.S. 232, 239-41, 94 S.Ct. 1683, 1687-88, 40 L.Ed.2d 90 (1974). In enacting § 1983, Congress did not abrogate legislative immunities “well grounded in history and reason.” Imbler v. Pachtman, 424 U.S. 409, 418, 96 S.Ct. 984, 989, 47 L.Ed.2d 128 (1975) (quoting Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951)). Similarly, the principle of absolute judicial immunity from civil damage actions has not been diminished by § 1983, as recognized in Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646 (1872), and reaffirmed nearly a century later in Pierson v. Ray, 386 U.S. 547, 554-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967).

The present case concerns the common law immunity accorded to a prosecutor acting within the scope of his duties. Imbler, supra, 424 U.S. at 423 & n. 20, 96 S.Ct. at 991 & n. 20. Unqualified prosecutorial immunity enables a state’s attorney to act zealously as the people’s advocate. Id. In preempting a conscientious prosecutor’s vulnerability to civil suit, absolute immunity eliminates fear of harassment for errors committed in the scope of discharging his duties. Pierson, supra, 386 U.S. at 554, 87 S.Ct. at 1217. For these reasons, the Supreme Court has upheld the validity of absolute prosecutorial immunity in section 1983 actions, choosing to leave an individual “without civil redress against a prosecutor whose malicious or dishonest action deprives him” of his rights. Id. 424 U.S. at 427, 96 S.Ct. at 993. Although imperfect, this system has been found the only effective way to assuage a public prosecutor’s “constant dread of retaliation.” Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949).

With regard to certain official acts of a public prosecutor, the immunity conferred is not absolute but qualified. Scheuer, supra, 416 U.S. at 242-45, 94 S.Ct. at 1689-91. This species of immunity extends to a prosecutor when he performs his duties in other than a quasi-judicial capacity. See Butz v. Economou, 438 U.S. 478, 508-12, 98 S.Ct. 2894, 2911-13, 57 L.Ed.2d 895 (1978). The degree of immunity to which a prosecutor is entitled depends on the role he plays as a participant in the criminal justice process. The gravamen of the test to determine whether absolute immunity attaches is not centered on the “identity or title of the officer responsible ...,” Lee v. Willins, 617 F.2d 320 (2d Cir.1980) (quoting Briggs v. Goodwin, 569 F.2d 10, 21 (D.C.Cir.1977), but rather the functional nature of his conduct qua prosecutor. Imbler, 424 U.S. at 430, 96 S.Ct. at 994; Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir.1981). Should a prosecutor act “fairly within his function as an advocate” during the pre-trial or trial stages of a criminal proceeding, immunity fully insulates him from civil liability. Imbler, supra, 424 U.S. at 430 n. 32, 96 S.Ct. at 995 n. 32; Taylor, supra, at 452. Excluded from this realm of absolute protection are duties of a strictly administrative or investigative type. Imbler, supra, 424 U.S. at 430-31, 96 S.Ct. at 995.

The approach endorsed by the Second Circuit to differentiate absolute from qualified immunity involves an examination of the interplay between the injury allegedly sustained and its source. Powers v. Coe, 728 F.2d 97, 103 (2d Cir.1984). Where the alleged harm stems from initiation or presentation of a state’s case resulting in a defendant’s “being compelled to stand trial or to suffer imprisonment,” the prosecuting attorney is not subject to liability for his actions. Lee, supra, at 322. See also Betts v. Richard, 726 F.2d 79, 81 (2d Cir. 1984) (upholding absolute immunity for state’s attorney obtaining capias to secure presence of witness at criminal trial). But cf. Hampton v. Hanrahan, 600 F.2d 600 (7th Cir.1979), rev’d in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) (per curiam) (immunity does not shield state official from liability caused by illegal search and seizure).

The Second Circuit has recently refined the doctrine of absolute immunity for state officials, other than state attorneys, who are nevertheless engaged in quasi-prosecutorial function. In Walden v. Wishengrad, 745 F.2d 149 (2d Cir.1984), the Court of Appeals found the duties of an attorney employed by a county department of social services to be the functional analog of those performed by a prosecutor. Id. at 152. The Walden court reasoned that the initiation and prosecution of child protective orders in family court was sufficiently similar to criminal prosecutorial functions to cloak the social services lawyer with the absolute immunity conferred by Imbler. Id. The Court also took into account the importance of the department’s activities, and public policy underlying litigation conducted by the department. Id. See also Schiavone v. Montuoro, 587 F.Supp. 66 (S.D.N.Y.1984) (defamation claim against United States’ attorneys dismissed on ground of absolute immunity).

Applying these principles to the instant case, Baranowicz is entitled to absolute immunity in connection with statements made in his affidavit before the New York Supreme Court. The fact that Baranowicz had not yet been admitted to the State Bar is of no legal consequence, since under the circumstances his actions as a Criminal Law Investigator were the functional equivalent of a state prosecutor. As the defendant’s statements were intimately related to presenting the state’s case in an ongoing criminal prosecution, he is absolutely immune from suit.

Since the instant claim is barred absolutely by prosecutorial immunity, it is unnecessary to inquire whether the content of the affidavit was defamatory. Defendant’s motion for summary judgment is granted and the complaint is dismissed with costs.

IT IS SO ORDERED.


text:
    NYSA-ILA GAI FUND, NYSA-ILA Vacation and Holiday Fund and NYSA-ILA Container Royalty Fund, Plaintiffs, v. Joseph M. POGGI, Defendant.
    No. 85 Civ. 2249 (RWS).
    United States District Court, S.D. New York.
    Sept. 16, 1985.

      Lambos, Flynn, Nyland & Giardino, Thomas W. Gleason, New York City, for plaintiffs; William M. Spelman, Charles Goldburg, New York City, of counsel.
    Edward J. Quinlan, New York City, for defendant.
   OPINION

SWEET, District Judge.

In response to the motion of plaintiffs NYSA-ILA GAI Fund, the NYSA-ILA Vacation and Holiday Fund and the NYSAILA Container Royalty Fund (the “Funds”) to amend their complaint, defendant Joseph M. Poggi (“Poggi”) has brought a cross-motion to dismiss the complaint on the basis that the court lacks subject matter jurisdiction over the case. Poggi’s motion will be granted with leave to amend.

Pleadings

The Funds have been established pursuant to the collective bargaining agreements between New York Shipping Association, Inc. and the International Longshoremen’s Association. They seek damages due to Poggi’s alleged wrongful acceptance of fund benefits between 1972 and 1984 and now request leave to amend the complaint to include two additional causes of action based on fraud and violations of the Employee Retirement Income Security Act (“ERISA”). Federal jurisdiction has been invoked pursuant to three alternative grounds: (1) Section 301 of the Labor Management Relations Act of 1947 (the “LMRA”), 29 U.S.C. § 185; (2) Section 502 of the Employee Retirement Security Act, 29 U.S.C. § 1132; and (3) 28 U.S.C. § 1332.

Discussion

1. Federal question jurisdiction

Section 502 of ERISA, 29 U.S.C. § 1132(f), provides that the district courts shall have jurisdiction over any civil action brought by a pension plan fiduciary to obtain relief for a violation of fiduciary duty, § 1132(a)(2); to enjoin any act or practice which violates the pension plan or ERISA, § 1132(a)(3)(A); or to obtain other appropriate equitable relief, § 1132(a)(3)(B). The same section allows a pension plan participant or beneficiary to bring a civil action to recover benefits due under the plan or to clarify rights to future benefits.

The language of this section indicates that federal jurisdiction only attaches to those actions brought by fiduciaries to ensure continuing compliance with either the pension plan itself or the broader requirements of ERISA. There is no indication from the statute, nor have the Funds cited any relevant case law, which supports their argument that a pension plan fiduciary may bring a federal action under this section to recover for past damages based on breach of contractual obligations under a pension plan. Therefore, while a pension plan beneficiary clearly does have the right to bring an action in federal court to recover benefits past due, there is no symmetrical grant of jurisdiction over actions by pension plans to recover benefits wrongfully paid out.

As a separate basis for the court’s jurisdiction, the Funds assert that their action is a suit “for violation of contracts between an employer and a labor organization representing employees” and therefore may be brought in federal district court under § 301 of the LMRA. It is accepted that the contracts encompassed by section 301 include not only the collective bargaining agreements between employers and labor organizations, but also pension plan agreements which are required by the collective bargaining agreement. See Alvares v. Erickson, 514 F.2d 156, 161 (9th Cir.), cert. denied, 423 U.S. 874, 96 S.Ct. 143, 46 L.Ed.2d 106 (1975); Whelan v. Colgan, 602 F.2d 1060 (2d Cir.1979). Nevertheless, the Second Circuit has had a restrictive view of federal court jurisdiction over pension plan disputes. With regard to disputes arising prior to the effective date of ERISA, this Circuit frequently refused to allow federal courts to assume a “roving jurisdiction” to examine the propriety of a trustee’s denial of an individual pension, Riley v. MEBA Pension Trust, 570 F.2d 406, 412 (2d Cir. 1977); Cuff v. Gleason, 515 F.2d 127 (2d Cir.1975); Beam v. International Organization of Masters, 511 F.2d 975, 978 (2d Cir.1975) and has refused to find that federal jurisdiction extended to actions brought by pension plan beneficiaries asserting individual claims of wrongful denial of benefits. Of course, following the enactment and effective date of ERISA, Congress explicitly provided a right of action in federal courts to all beneficiaries where the courts had refused to imply one.

In ERISA, Congress provided a federal right of action only for individual claims raised by plan beneficiaries themselves. This limitation in the statutory jurisdictional grant that specifically addresses suits to enforce ERISA pension plan agreements makes it inappropriate to imply a jurisdictional grant in section 301 of the LMRA.

2. Diversity jurisdiction

The Funds seek to establish diversity jurisdiction based on each Fund’s principal place of business in New York and Poggi’s New Jersey residence. However, the Funds themselves are not the proper parties to prosecute this action, despite the provisions of 29 U.S.C. § 1132(d)(1) which allow that an “employee benefit plan may sue or be sued under this subchapter as an entity.” Since this action does not arise under ERISA, however, it is necessary to examine more general principles regarding civil actions brought on behalf of trust funds.

Rule 17(a) of the Federal Rules of Civil Procedure provides that a trustee of an express trust is a real party in interest which may file suit. This standard also guides the determination of which persons’ citizenship must be considered in evaluating whether diversity jurisdiction exists. See Navarro Savings Ass’n v. Lee, 446 U.S. 458, 462 n. 9, 100 S.Ct. 1779, 1782 n. 9, 64 L.Ed.2d 425 (1980). As the Navarro case explains, “a trustee is a real party to the controversy for purposes of diversity jurisdiction when he possesses certain customary powers to hold, manage, and dispose of assets for the benefit of others.” Id. at 464, 100 S.Ct. at 1783. This standard controls the present case and therefore, the trustees of the Funds are both the proper plaintiffs in this action and the persons whose citizenship will be determinative of whether federal jurisdiction attaches to this case. See also Carpenters & Millwrights Health Benefit Trust Fund v. Domestic Insulation Co., 387 F.Supp. 144, 147 (D.Colo.1975); J. Moore & J. Lucas, Moore’s Federal Practice 1117.04 (2d ed. 1985). Without pleadings which set forth the citizenship of all the trustees to the Funds, it is impossible to assert jurisdiction on the basis of diversity.

Conclusion

For the foregoing reasons, defendants’ motion is granted and the complaint will be dismissed. Judgment will be stayed for twenty (20) days to allow plaintiffs to re-plead their complaint.

IT IS SO ORDERED.


author: YOUNG, District Judge.

text:
    Polly BULPETT, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 84-2551-Y.
    United States District Court, D. Massachusetts.
    Sept. 17, 1985.

      Linda L. Landry, Neighborhood Legal Services, Inc., Lynn, Mass., for plaintiff.
    Jeffrey Martin, Asst. U.S. Atty., Boston, Mass., for defendant.
   MEMORANDUM AND ORDER

YOUNG, District Judge.

The plaintiff Polly Bulpett (“Bulpett”) brought this action to obtain judicial review of a final decision of the Secretary of Health and Human Services (“the Secretary”) denying Bulpett’s application for Social Security disability benefits. The Secretary found that Bulpett suffered from physical impairments associated with gastrointestinal problems, arthritis, and hypertension, but that these impairments were not disabling. Bulpett argues that this determination is not supported by substantial evidence and is based on several erroneous conclusions of law.

I.

Bulpett is a 51 year old woman, with a high school education, who has worked as a payroll clerk, waitress, and dental assistant. In 1966, Bulpett developed severe gastrointestinal problems and stopped working. She initially applied for disability benefits on December 22, 1969, alleging disability due to ulcerative colitis (Tr. 96), and was awarded benefits for a period beginning in November 1966. According to the disability determination by the Department of Health, Education and Welfare, medical evidence showed that Bulpett suffered a combination of impairments including “inflammatory disease of terminal ileum and possibly colon, probable regional ileitis plus erythema nodosum.” Clinical findings included “spiking fevers, bloody stools, cramps, and recurring, severe fatigue” and x-rays were “consistent with regional enteritis.” (Tr. 28)

Bulpett continued to receive disability benefits from November 1966 until March 1981, when it was determined upon review of the medical evidence that her disability had ceased in January 1981. That decision was upheld by an Administrative Law Judge on September 30, 1981, and later affirmed by the Appeals Council.

On May 17, 1983, Bulpett reapplied for disability benefits, alleging disability due to gastrointestinal disorders, gallstones, hypertension, back problems, and a low potassium level. (Tr. 146-49) Her application was denied initially and again upon reconsideration. Bulpett requested a hearing on her claim, and one was held before an Administrative Law Judge on January 20, 1984. The Administrative Law Judge found that Bulpett was not disabled and denied her application on January 31, 1984. On June 20, 1984, the Appeals Council denied Bulpett’s request to reopen the case, and thus the decision of the Administrative Law Judge became the final decision of the Secretary.

II.

A district court reviewing a decision of the Secretary must determine whether the decision is supported by substantial evidence and conforms to statutory requirements. Geoffroy v. Secretary of HHS, 663 F.2d 315, 319 (1st Cir.1981). The relevant statute defines a disabled individual as one who is unable:

to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months____

42 U.S.C. § 423(d)(1)(A) (1982). Section 423 (d)(2)(A) further provides that an individual:

shall be determined to be under a disability 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____

Id. § 423(d)(2)(A).

The Secretary has promulgated regulations that employ a series of tests to determine whether a claimant is disabled. 20 C.F.R. § 404.1520 (1985). See Goodermote v. Secretary of HHS, 690 F.2d 5, 6 (1st Cir.1982). In particular, the Social Security Administration asks five questions in the following order:

First, is the claimant currently employed? If so, the claimant is automatically considered not disabled.

Second, does the claimant have a severe impairment? A “severe impairment” means an impairment which “significantly limits his or her physical or mental capacity to perform basic work-related functions.” 20 C.F.R. § 404.1521 (1985). If the claimant does not have a severe impairment, the claimant is automatically considered not disabled.

Third, does the claimant have an impairment equivalent to one specifically listed in the regulations’ Appendix 1? If so, the claimant is automatically considered disabled.

These first three tests are threshold “medical” tests. If the claimant is found to have a severe impairment (test 2) but that impairment is not equivalent to one listed in Appendix 1 (test 3), the agency goes on to the fourth and fifth questions, which apply “vocational” tests:

Fourth, does- the claimant’s impairment prevent him from performing work of the sort he has done in the past? If not, he is not disabled. If so, the agency asks the fifth question.

Fifth, does the claimant’s impairment prevent him from performing other work of the sort found in the economy? If so, he is disabled; if not, he is not disabled. Goodermote v. Secretary of HHS, 690 F.2d at 6-7.

In applying these last two “vocational” tests, the claimant has the burden of proving that he is disabled under the fourth test; that is, he must prove that his disability is serious enough to prevent him from working at his former jobs. However, the Secretary bears the burden of showing that the claimant has not satisfied the fifth test; that is, the Secretary must show the existence of other jobs in the national economy that the claimant can perform. Id. at 7.

III.

In this appeal, Bulpett argues that the Administrative Law Judge “concluded that [Bulpett] did not have a severe impairment,” thereby suggesting that the Court’s inquiry should focus on the second test stated above — that is, does the claimant have a “severe impairment?” Although the decision of the Administrative Law Judge is not a model of clarity, a close examination of the decision indicates that, in fact, the Administrative Law Judge went beyond the three threshold tests, having found that “the claimant’s impairments are severe [but] do not meet or equal the criteria of the Listings found in Appendix 1.” (Tr. 70) The Administrative Law Judge thus moved on to the “vocational” tests. Although the Administrative Law Judge made no specific finding under the fourth test, he concluded, presumably under the fifth test, that Bulpett retained the functional capacity to perform a light level of work and could perform a variety of jobs found in the economy.

The Secretary has promulgated a set of medical-vocational guidelines known as “the Grid” to simplify the application of the fifth test. 20 C.F.R. Part 404, Subpart P, Appendix 2 (1985). The Grid has been upheld as a legitimate exercise of the general rulemaking authority granted to the Secretary. Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983); Torres v. Secretary of HHS, 677 F.2d 167, 169 (1st Cir.1982). The Grid is basically a matrix, including different combinations of the four essential factors set out in the statute (physical ability, age, education, and work experience) and stating, as to each combination, whether a claimant with those characteristics is “disabled” or “not disabled.” It consists of three separate tables, one for those who retain the residual exertional capacity to perform “sedentary” work, one for those with the residual capacity to perform “light” work, and one for those with the residual capacity to perform “medium” work. The Administrative Law Judge simply selects the proper table and row based on the characteristics he finds the claimant to possess and reads the conclusion — “disabled” or “not disabled”— from the last column on the table. Sherwin v. Secretary of HHS, 685 F.2d 1, 2 (1st Cir.1982).

When application of the Grid directs a finding that an individual claimant is “not disabled,” the Administrative Law Judge is not required to name specific jobs that the claimant could perform. The Grid is designed to “make application of the statutory definition of disability more uniform and more fair, by eliminating the need to rely upon an individual vocational expert’s knowledge in many relatively uncomplicated situations.” Torres v. Secretary of HHS, 677 F.2d at 169. If the facts of a particular case do not fit squarely within one of the rules included in the Grid because they reveal a borderline case or a case lying between the two rules, those rules still “provide guidance;” they are to be given “consideration,” and they “provide an overall structure for evaluation.” 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(d). If instead the facts do not fit squarely within a rule because the claimant has a combination of impairments — particularly if the claimant has a nonexertional impairment — the rules require still more individualized consideration. Id. at § 200.-00(e); Sherwin v. Secretary of HHS, 685 F.2d at 3.

Whether or not the Grid directs a conclusion in a particular case, the Administrative Law Judge nevertheless must analyze each claimant’s physical ability, age, education, and work experience, and must also determine whether the claimant suffers from nonexertional impairments. Each of these findings is subject to judicial review. Torres v. Secretary of HHS, 677 F.2d at 170.

Judicial review of Social Security disability determinations is limited, and the Court must affirm the Secretary’s decision if it is supported by substantial evidence. The resolution of conflicts in the evidence and the determination of the ultimate question of disability is for the Secretary. Therefore, this Court must uphold the Secretary’s findings in this case if a reasonable mind, reviewing the entire record as a whole, could accept it as adequate to support the Secretary’s conclusions. Rodriguez v. Secretary of HHS, 647 F.2d 218, 222 (1st Cir.1981).

IY.

In this case, the Administrative Law Judge relied primarily on the Grid in reaching his conclusion that Bulpett was not disabled. He also entertained brief testimony from a vocational expert. For purposes of applying the Grid, the Administrative Law Judge placed Bulpett in the following categories: (1) capable of performing light work; (2) closely approaching advanced age; (3) high school education; and (4) unskilled work background. (Tr. 69) The Administrative Law Judge then applied Rule 202.13, which directs a conclusion of “not disabled” for a person with those four characteristics.

It is undisputed that the Administrative Law Judge properly characterized Bulpett’s age, education, and work experience. However, Bulpett argues that the Administrative Law Judge improperly concluded that she was capable of performing “a light level of work.” Placing Bulpett in the “light work” category is particularly important for purposes of using the Grid— for example, if the Administrative Law Judge had concluded instead that Bulpett was capable of performing only “sedentary” work, the Grid would have directed a finding of “disabled.” 20 C.F.R. Part 404, Subpart P, Appendix 2, § 201.12. Bulpett also argues that the Administrative Law Judge failed to consider the cumulative effect of her various impairments. As noted above, if a claimant has a combination of impairments or a nonexertional impairment, an Administrative Law Judge must perform a more individualized analysis than simply a mechanical application of the Grid. Sherwin v. Secretary of HHS, 685 F.2d at 3.

The initial question is thus whether there is substantial evidence to support the conclusion of the Administrative Law Judge that Bulpett retains the functional capacity to perform a “light” level of work. “Light work” is defined 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 or 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.

20 C.F.R. § 404.1567(b).

The Administrative Law Judge made no specific findings regarding Bulpett’s ability or inability to perform according to this definition. He reached several conclusions about her medical conditions and commented briefly on some of her daily activities, but made no effort to apply those conclusions to an assessment of her capacity to perform work.

Bulpett presented competent medical evidence that she suffers from gastrointestinal problems, arthritis, and hypertension. The Administrative Law Judge agreed that she suffered from all three impairments, but concluded that they were not severe enough to render Bulpett disabled. The Administrative Law Judge relied on three medical sources to reach this conclusion: a report from an unidentified medical examiner (Tr. 179); a report from Dr. John Eliapoulas (Tr. 180); and a report from consulting physician Dr. Gerald Aronson (Tr. 182-84).

Bulpett argues that the Administrative Law Judge mischaracterized certain key portions of the medical evidence. This Court agrees. A close review of the medical reports shows that the Administrative Law Judge selectively summarized them in a way that supported his conclusion of “no severe pathology.” See Anderson v. Secretary of HHS, No. 80-2159-T, slip op. at 16 (D.Mass. Jan. 16, 1984) (“It is not reasonable to rely arbitrarily on portions of a medical report while simultaneously ignoring the spirt of the report.”) For example, in summarizing the unidentified examiner’s report, the Administrative Law Judge omitted several key entries: the diagnosis is one of degenerative osteoarthritis, the disease is “still active in spite of therapy,” and the plaintiff’s therapy includes gentle stretching exercises and external immobilization of lower lumber spine by means of a back brace. (Tr. 179)

With respect to the report of Dr. Eliapoulas, the Administrative Law Judge stated simply: “In September 1979 the claimant underwent an exploratory laparotomy. Dr. John Eliapoulas in his report of May 26, 1983 stated that the claimant had not been seen for his [sic] regional enteritis problem for over four years.” (Tr. 68) In fact, Dr. Eliapoulas’ report is much more illuminating — it describes the surgery performed (including a “resection of terminal ileum” and “partial right colectomy”) and indicates that Dr. Eliapoulas last examined the plaintiff in December of 1981. (Tr. 180) The fact that Dr. Eliapoulas himself has not seen Bulpett in several years does not indicate, as the Administrative Law Judge suggests, that Bulpett has recovered from her regional enteritis; other physicians have commented on her “Crohn’s disease” since Dr. Eliapoulas’ last examination. (Tr. 179, 191)

The summary of Dr. Aronson’s report by the Administrative Law Judge is even more troublesome. For example, with respect to Bulpett’s osteoarthritis and hypertension, the Administrative Law Judge states: “Despite her apparent osteoarthritis of the lumbosacral spine, [Dr. Aronson] found no evidence of nerve or disc disease. Her hypertension disclosed no end organ damange [sic] or severe symptomatology.” (Tr. 68) In fact, Dr. Aronson’s report states the following:

She has significant osteoarthritis involving the lumbosacral spine and apparently this is symptomatically important. There is no evidence of nerve root or disc disease, however. She also has hypertension which at the time of this one examination did not appear to be well controlled.

(Tr. 183-84)

As for Bulpett’s gastrointestinal problems, Dr. Aronson concluded, “At the present time I would assume for the most part her small bowel problem appears to be alleviated or at least controlled without any specific therapy other than the surgical procedure she underwent several years ago.” (Tr. 183) The tentative nature of this remark appears to have resulted from the fact that Dr. Aronson conducted a onetime consultative physical examination which did not include a detailed examination of Bulpett’s bowel problems.

The Administrative Law Judge went on to conclude that Bulpett’s colitis condition is adequately controlled through a “low salt diet.” (Tr. 69) There is no support whatsoever for this conclusion. In fact, the evidence suggests that Bulpett is on a low salt diet for her hypertension and that the diet sometimes exacerbates her colitis condition. (Tr. 83)

Even if the analysis of Bulpett’s physical condition is restricted solely to a review of the reports of the unidentified examiner, Dr. Eliapoulas, and Dr. Aronson, those reports do not provide substantial support for a conclusion that Bulpett is capable of performing “light work.” None of those reports offers any conclusions regarding Bulpett’s exertional limitations or the effects of her medical problems on her capacity to perform work. The Administrative Law Judge disregarded in its entirety the only medical report which focused on this question — that of Bulpett’s treating physician, Dr. Jack Skowronski, who apparently has been seeing Bulpett quarterly since 1981. (Tr. 83, 168)

In his report, dated January 18,1984, Dr. Skowronski offered the following opinions based on his examinations of Bulpett: she does not have the physical capacity to sit or stand longer than lh hour; she does not have the physical capacity to do frequent bending; she does not have the physical capacity to lift frequently any weight during six hours of an 8-hour interval; those limitations have lasted, or can reasonably be expected to last, for 12 months or longer. Dr. Skowronski went on to state that Bulpett’s allegations of pain are consistent with the following “clinical and/or objective findings”:

Dx: (1) Arthritis of the spine. (2) Crohn’s disease.
Has marked limitation of activity such as in bending, walking and prolonged sitting secondary to her arthritis. Various arthritic medications have not helped or were not tolerated secondary to gastrointestinal symptoms.
She also has Crohn’s Disease of the bowel with chronic diarrhea which is disabling.

(Tr. 191)

Although the opinions and diagnosis of a treating physician are not necessarily entitled to more weight than those of other medical consultants, Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir.1982), such opinions should be considered carefully in the absence of grounds to question their reliability. See Smith v. Schweiker, 646 F.2d 1075, 1081 (5th Cir.1981). The Administrative Law Judge disregarded Dr. Skowronski’s report in its entirety, purportedly on the ground that it was “conclusory in nature and not supported by objective findings.” (Tr. 68) This outright rejection of the report is particularly startling given the willingness of the Administrative Law Judge to rely on one-page checklist forms (supplied by the state agency) completed by Dr. Eliapoulas and by an examiner whose identity is unknown.

Taken as a whole, the medical records do not support the conclusion of the Administrative Law Judge that Bulpett is capable of performing light work. This result is not affected by the testimony offered by the vocational expert. At the hearing, the Administrative Law Judge asked four relevant questions of vocational expert O’Shea:

Q. However, she is plagued with her bowel disease, her arthritis, her hypertension, and particularly her bowel problem requiring frequent trips to the bathroom. In view of her age, her education, assume I find that the evidence substantiates her constellation of complaints, what jobs do you think she could do?
A. With that assumption, Your Hon- or, it would be my opinion that she would not be able to undergo or take any kind of substantial gainful activity.
Q. Assume I find that the evidence doesn’t (INAUDIBLE), then what light jobs could she perform?
A. In my opinion under that assumption, Your Honor, that she would be able to work as a packer in light industry, as a food counter worker, as an assembler, again as an inspector, again in light industry. These would be representative of the kind of jobs seeing she has no transferable skills (INAUDIBLE) regulations.
Q. Now, what these jobs either assembly or all four of them allow for her to frequent the Ladies Room?
A. Well, if she had to go frequently it would seem to me it would interfere with her performance (INAUDIBLE).
Q. But again that would depend on—
A. It depends on the frequency and severity, the severity of the situation, exactly.

(Tr. 91-92) It is clear that the vocational expert’s opinion regarding specific jobs in the economy is irrelevant unless the Administrative Law Judge could properly conclude, based on substantial evidence, that Bulpett was capable of “light work.”

Bulpett raises two additional issues on this appeal. She argues that the Administrative Law Judge failed to give proper weight to her allegations of pain and that the Administrative Law Judge failed to consider the cumulative effect of all of her impairments. Because the Court finds considerable merit in these arguments, they will be addressed briefly.

In his decision, the Administrative Law Judge conceded that Bulpett “does feel some discomfort from her back condition.” (Tr. 69) However, he clearly discounted Bulpett’s testimony regarding the severity of this pain:

[Assessments based upon available objective data present this condition as being one of mild degenerative change. No deformity, fracture, nerve root impingement or disc lesion has been found. The lack of significant pathology affects the credibility of the claimant’s symptoms as to severity.

(Tr. 69) Even assuming the Administrative Law Judge is accurate in his characterization of Bulpett’s degenerative disease as “mild,” that does not necessarily mean Bulpett is not in severe pain. Bulpett presented competent evidence, through both her hearing testimony and Dr. Skowronski’s report, that her pain is severe.

In considering a complaint of pain, there must be some objective medical evidence of a cause of pain. Miranda v. Secretary of HEW, 514 F.2d 996, 999-1000 (1st Cir.1975). However, once pain is properly at issue, as it is here, the Administrative Law Judge must evaluate its severity by considering all of the evidence, both objective and subjective. Horne v. Heckler, No. 83-2837-Z, slip op. at 4 (D.Mass. April 25, 1985). Thus, to the extent the Administrative Law Judge thought the severity of Bulpett’s pain must be shown by objective medical evidence, he was in error. The Administrative Law Judge is entitled, of course, to weigh the credibility of such evidence. Id.

To fairly determine Bulpett’s application, the Administrative Law Judge was required to consider the cumulative effect of Bulpett’s impairments. Although the Administrative Law Judge separately considered Bulpett’s three major impairments, i.e. regional enteritis, arthritis, and hypertension, he made little effort to assess the combined effects of these physical problems on her ability to perform gainful work. It is inappropriate to view several disabilities as isolated from one another. Landess v. Weinberger, 490 F.2d 1187, 1190 (8th Cir.1974). As the court in Landess observed:

Each illness standing alone, measured in the abstract, may not be disabling. But disability claimants are not to be evaluated as having several hypothetical and isolated illnesses. These claimants are real people and entitled to have their disabilities measured in terms of their total physiological well-being.

Id.

Bulpett has identified several physical impairments which may limit her ability to meet the strength or exertional requirements of certain jobs. In addition, she presented evidence of significant nonexertional limitations. For example, she testified that she has little control over her bowel movements and has chronic diarrhea due to her Crohn’s disease and the surgical removal of part of her terminal ileum. (Tr. 29) Even if such problems did not relate directly to her ability to lift, bend, or stand, they clearly have an impact on her ability to perform certain work. This is substantiated by the vocational expert who testified at the hearing that if Bulpett had to frequently use the bathroom, “it would interfere with her performance.” (Tr. 92)

Such nonexertional factors are particularly important in this case because of the Administrative Law Judge’s primary reliance on the Grid to determine that Bulpett was not disabled. Although the Grid is appropriately used for guidance in a case involving nonexertional or multiple impairments, the Administrative Law Judge must go further. “It is axiomatic that where there are nonexertional factors or impairments which limit the range of activity a claimant might perform at a given exertional level, the rules of the [Grid] are not conclusive as to disability.” Rosa v. Secretary of HHS, 547 F.Supp. 712, 717 (D.Mass.1982). Although certain of these nonexertional factors were mentioned at the hearing, that hearing lasted only fifteen minutes and represented only a cursory examination of a complicated case. Neither the hearing transcript nor the decision of the Administrative Law Judge suggest that the nonexertional impairments were properly considered in conjunction with Bulpett's other impairments. Thus, the conclusion of no disability, based as it is primarily on a mechanical application of the Grid, is not supported by substantial evidence.

V.

Accordingly, the decision of the Secretary is reversed, and the case is remanded for further hearing and decision consistent with this opinion. In particular, the Secretary must re-evaluate the medical evidence in the record and consider any additional medical evidence necessary to reach a fair conclusion as the nature of Bulpett’s impairments and how those impairments relate to her ability to perform work. Properly admitted evidence from Bulpett’s treating physician ought be considered, as well as subjective evidence relating to the level of Bulpett’s pain. Finally, the Secretary must evaluate the cumulative effect of all of Bulpett’s ailments, including nonexertional impairments, and must avoid a mechanical application of the Grid in determining whether Bulpett is disabled.

It is so ordered. Reversed and remanded to the Secretary for further action in accordance with this opinion.

      . Bulpett argues on appeal that the Administrative Law Judge failed to adequately develop the record and that such failure is cause for remand. The First Circuit has recognized the Secretary has a duty to develop evidence in certain circumstances, particularly where the claimant is not represented by counsel or is obviously mentally impaired. Deblois v. Secretary of HHS, 686 F.2d 76, 80-81 (1st Cir.1982). Although Bulpett’s argument is not so compelling here since she was represented by counsel at the hearing, the Secretary should be careful on reconsideration to ensure that she is afforded a meaningful hearing. See Roy v. Secretary of HHS, 512 F.Supp. 1245, 1252 (C.D.Ill.1981) (“Even if the claimant is represented by counsel, the duty remains on the AU to develop the facts fully and fairly.”)