author: BAKER, Chief Judge.

text:
    UNITED STATES ex rel. Frank BRADLEY, Petitioner, v. Neil F. HARTIGAN and Michael P. Lane, Respondent.
    No. 85-2128.
    United States District Court, C.D. Illinois, Danville Division.
    June 24, 1985.

      Carey J. Luckman, Pontiac, 111., for petitioner.
    Mark Rotert and Jill Wine-Banks, Asst. Attys. Gen., Chicago, III, for respondent.

      . On March 28, 1985, a hearing was held on Bradley's habeas corpus petition. Arguments were heard and summary judgment was entered in favor of the respondents and against the petitioner. The writ of habeas corpus was denied and the court's order of February 27, 1985, enlarging the petitioner on bail pending the disposition of the petition was vacated and set aside. The court stated that a written order was to be entered. This is that written order.

   FINAL ORDER

BAKER, Chief Judge.

I. FACTUAL BACKGROUND AND PRIOR PROCEEDINGS

Following a criminal jury trial, the petitioner Frank Bradley was convicted of indecent liberties with a child and sentenced to four years imprisonment. On direct appeal the Illinois Appellate Court affirmed the conviction. See People v. Bradley, 113 Ill.App.3d 1172, 75 Ill.Dec. 384, 457 N.E.2d 174 (4th Dist.1983). The only claim raised by Bradley in his appeal from conviction was that he should have been granted a new sentencing hearing because the trial court had failed to consider the alternative of periodic imprisonment. His petition for leave to appeal to the Illinois Supreme Court was denied.

After his denial of leave to appeal to the Illinois Supreme Court, Bradley filed a petition for relief under the Illinois Post-Conviction Hearing Act. Ill.Rev.Stat. ch. 38, Para. 122-1 et seq. (1983). The petition alleged that the statute under which Bradley was convicted was unconstitutionally vague; that the trial court lacked jurisdiction because the information charging him was defective; that he was denied a preliminary hearing and probable cause determination on the charge for which he was convicted; that his constitutional guarantee against being placed in jeopardy twice for the same offense was violated; that the admission of a caseworker’s testimony violated his constitutional right against self-inerimination and his right to assistance of counsel; that errors occurring at trial denied him due process of law and deprived him of a fair trial; and that the cumulative effect of the alleged errors deprived him of a fair trial. Bradley further argued that all of the above errors demonstrated that he was denied effective assistance of counsel at trial and on direct appeal of his conviction.

The Circuit Court of livings ton County, Judge Caisley presiding, held that Bradley had failed to raise any issues of constitutional magnitude and that Bradley had, in any case, waived the alleged errors by failing to object at trial or to raise them on direct appeal. The Circuit Court additionally found that neither Bradley’s trial counsel nor appellate counsel were incompetent. See Docket Order of Circuit Court, Judge Caisley (Livingston County, Jan. 4, 1984).

In his appeal from the Circuit Court’s dismissal of his post-conviction petition, Bradley argued that the appellate court should consider all of the issues raised in his petition for post-conviction relief because fundamental fairness required the doctrine of waiver not be applied to the substantive violations of his constitutional rights.

The appellate court stated that when “an appeal is taken from a conviction, the judgment of the reviewing court is res judicata as to all issues decided by the court and all issues which could have been presented are deemed waived.” People v. Bradley, 128 Ill.App.3d 372, 377, 83 Ill.Dec. 701, 470 N.E.2d 1121 (4th Dist.1984) (citing People v. Brown, 52 Ill.2d 227, 287 N.E.2d 663 (1972)). A waiver would not be invoked in post-conviction proceedings, however, where the “application of the waiver doctrine would be manifestly inconsistent with fundamental fairness”. Bradley, 28 Ill.App.3d at 377, 83 Ill.Dec. 701, 470 N.E.2d 1121 (citing People v. Adams, 52 Ill.2d 224, 287 N.E.2d 695 (1972) and People v. Hanby, 32 Ill.2d 291, 205 N.E.2d 456 (1965)). The appellate court stated that the issue to be determined was whether Bradley’s post-conviction petition presented a substantial showing of a denial of constitutional rights, which may not be deemed to have been waived by failure to have presented the issue of denial of a constitutional right to the appellate court upon appeal of conviction. Bradley, 28 Ill.App.3d at 377, 83 Ill.Dec. 701, 470 N.E.2d 1121.

The appellate court found that Bradley’s post-conviction petition presented no substantial showing of a denial of constitutional rights in that all of Bradley’s claimed errors were without merit. Thus, the court ruled, the claimed errors must be deemed waived. See id. at 383, 83 Ill.Dec. 701, 470 N.E.2d 1121. The court additionally concluded that Bradley received competent representation based upon his trial counsel’s performance throughout the proceedings, and that Bradley also received competent representation by counsel on appeal. Id. The Supreme Court of Illinois denied Bradley’s petition for leave to appeal the decision of the appellate court of Illinois affirming the trial court dismissal of his petition for post-conviction relief.

On February 27, 1985, Bradley petitioned this court for writ of habeas corpus stating that he was in immediate risk of being required to surrender to the Livingston County Sheriff for transfer to the Illinois Department of Corrections to begin serving his four year term of imprisonment. The petitioner’s motion to be enlarged on bail pending disposition of the habeas petition was allowed. On February 28, 1985, the court ordered the respondents to show cause within twenty (20) days why a writ of habeas corpus should not issue. See Order of February 28, 1985. On March 6, 1985, the cause was allotted for hearing on March 18, 1985, on objections of the respondents to the enlargement of Bradley on bail. Due to a conflict in the court’s calendar, the hearing set for March 18, 1985, was held on March 22, 1985. The hearing was held on the respondents’ objections to Bradley’s enlargement on bail, the respondent moving the court to reconsider the setting of bond. The motion for reconsideration of the court's order setting bond was denied, and the cause was allotted for hearing on the merits of the petition on March 28, 1985, at 1:30 p.m. On March 27, 1985, respondents moved for summary judgment against the petitioner.

II. REVIEWABILITY OF CLAIMS

The petitioner Bradley was charged by information by the State of Illinois for two counts of indecent liberties with a child,

pursuant to Ill.Rev.Stat. ch. 38, §§ 11-4(a)(1) and (3). In information No. 81-CF-220, petitioner was accused of having sexual intercourse with his fourteen-year-old daughter (Count 1) and of engaging in lewd fondling of his daughter (Count 2) on November 2, 1981. In information No. 81-CF-234, petitioner was charged with the lewd fondling of his fourteen-year-old daughter on November 3, 1981. Prior to trial by jury, information No. 81-CF-234 was dismissed, with prejudice, by the court on the motion of the state to nolle proseque that charge. The petitioner was tried on the counts in information No. 81-CF-220; the petitioner was acquitted on Count 1 alleging sexual intercourse, but was convicted on Count 2 alleging lewd fondling. The petitioner was thereafter sentenced to four years imprisonment.

The petitioner seeks a writ of habeas corpus from this court to prevent his incarceration on the state court conviction. Petitioner raises ten claims for habeas relief, the same ten claims which were raised before the circuit court at his post-conviction proceeding. The petitioner has exhausted his available state remedies as required by 28 U.S.C. § 2254 and Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

Where a defendant has failed to abide by a state procedural rule and is thereby barred from litigation of a constitutional claim in the state courts, the state prisoner may not obtain federal habeas corpus relief absent a showing of “cause and prejudice”. Reed v. Ross, — U.S. -, -, 104 S.Ct. 2901, 2906, 82 L.Ed.2d 1 (1984); Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977); Weber v. Israel, 730 F.2d 499, 502 (7th Cir.1984). In the case at bar, the Circuit Court of Livingston County, on his post-conviction petition, found that Bradley had waived his right to attack his conviction with these constitutional claims because he had failed to raise these claims at the appeal of his state court criminal conviction and he was now procedurally barred from doing so under state law.

The state appellate court, affirming the circuit court’s denial of Bradley’s post-conviction petition, stated that “[o]nly where application of the waiver doctrine would be manifestly inconsistent with fundamental theories will waiver not be invoked in post-conviction proceedings”. People v. Bradley, 128 Ill.App.3d at 377, 83 Ill.Dec. 701, 470 N.E.2d 1121 (citations omitted). The Court found that the only issue to be determined was whether Bradley’s post-conviction petition presented a “substantial showing of a denial of constitutional rights, which may not been deemed to have been waived”. Id. The Court went on to hold that Bradley’s petition for post-conviction relief presented no substantial showing of any violation of its constitutional rights. Id. at 384, 83 Ill.Dec. 701, 470 N.E.2d 1121.

If a state appellate court rules on the merits of a constitutional claim, but not on the state procedural question, federal habeas corpus review is available. See Farmer v. Prast, 721 F.2d 602, 605 n. 5 (7th Cir.1983); United States ex rel. Williams v. Franzen, 687 F.2d 944, 951 (7th Cir.1982); Brownstein v. Director of Illinois Department of Corrections, 594 F.Supp. 494, 500 (N.D.Ill.1984) affd 760 F.2d 836 (7th Cir.1985). Federal habeas corpus relief is precluded, however, where the state appellate court affirms a trial court decision on the twin grounds of lack of merit in a constitutional claim and the appellant’s failure without justification to comply with the state’s procedural rules. Farmer, 721 F.2d at 605. See Jentges v. Milwaukee County Circuit Court, 733 F.2d 1238, 1243 n. 1 (7th Cir.1984); United States ex rel. Veal v. DeRobertis, 693 F.2d 642, 650 (7th Cir.1982).

In the case at bar, the state appellate court reached the merits of Bradley’s claim in order to determine if Bradley had waived his rights under state law to bring the constitutional claims in the post-conviction proceedings. Thus, the state appellate court reached the twin grounds of lack of merit .in a constitutional claim and the failure to comply with state procedural rules resulting in a waiver of the claims in the state courts. Under Farmer, therefore, Bradley may not obtain federal habeas relief absent a showing of “cause and actual prejudice”. See Engle, 456 U.S. at 129, 102 S.Ct. at 1572.

As Bradley may be deemed to have waived his claims by failing to present them to the Illinois appellate court after his state court criminal conviction, the petitioner maintains that his trial and appellate counsel’s ineffective assistance constitutes “cause” for Bradley’s procedural default and that therefore habeas corpus relief is not barred. In United States ex rel. Spurlark v. Wolf, 699 F.2d 354 (7th Cir.1983), a majority of the Court held that failure to raise a claim on direct appeal from a state court conviction barred federal habeas corpus relief unless the petitioner showed cause for and prejudice from the procedural default. Id. at 357-61. Ineffective assistance of counsel, however, may provide sufficient cause for a procedural default. See Clay v. Director, Juvenile Division, Department of Corrections, 749 F.2d 427, 430 (7th Cir.1984) and authorities cited. The term “cause” has been given a flexible definition that may change depending on the degree of prejudice shown. This is because cause is viewed “in terms of the nature of the procedural waiver and with an eye to the possible resulting prejudice.” Id. at 434 quoting Huffman v. Wainwright, 651 F.2d 347, 351 (5th Cir.1981). “Cause” is thus defined in sufficient terms “to excuse a procedural default in light of the determination to avoid ‘a miscarriage of justice’.” Clay, 749 F.2d at 434 (quoting Huffman, 651 F.2d at 351). If prejudice is high, therefore, cause will be more easily found; conversely, where it appears that justice has been done, the requirement for showing both cause and prejudice will be strictly enforced. Clay, 749 F.2d at 434.

The question, therefore, for this court to examine is whether Bradley’s counsel, both trial and appellate, were so ineffective as to create cause for exception to the federal habeas waiver rule.

Beyond the issue as to whether or not Bradley’s trial and appellate counsel were so ineffective as to constitute cause for precluding the application of the waiver doctrine, is the separate question as to whether the assistance of counsel rendered by Bradley’s trial and appellate counsel was so ineffective as to render it in and of itself a violation of the Sixth Amendment. Under Illinois law, an ineffective assistance of counsel claim not raised on appeal may still be raised in a post-conviction proceeding under some circumstances. See United States of America, ex rel. Devine v. DeRobertis, 754 F.2d 764, 766 (7th Cir.1985); Perry v. Fairman, 702 F.2d 119, 122 (7th Cir.1983). In the case at bar, Bradley at his post-conviction proceeding raised issues of incompetency of trial and appellate counsel at his post-conviction proceeding. The circuit court at the post-conviction proceeding held that Bradley’s trial and appellate counsels’ performance did not constitute incompetence of counsel; on appeal from the circuit court’s decision in the post-conviction proceeding, the state appellate court concluded that Bradley received competent representation both in his trial counsel’s performance throughout the proceedings and his counsel’s performance on appeal. The state court, therefore, reached the merits of Bradley’s ineffective assistance of counsel claim and that claim is now ripe for this court to review.

The court will first proceed to examine the petitioner’s arguments for precluding the application of the waiver doctrine to those claims not raised at the direct appeal of his state conviction.

III. DISCUSSION

A. Waiver Doctrine Preclusion

1. Vague Statute Claim

Bradley argues that his trial counsel should have raised a attack on § ll-4(a)(3) of the Criminal Code of 1961, under which he was convicted for committing indecent liberties with his daughter, as unconstitutionally vague. See Ill.Rev.Stat. ch. 38, Para. ll-4(a)(3) (1983).

The Illinois appellate court specifically upheld the constitutionality of § lidia) in People v. Polk, 10 Ill.App.3d 408, 294 N.E.2d 113 (2nd Dist.1973). The court in Polk held that the statute provides fair notice of what conduct is prescribed. Id. at 412, 294 N.E.2d 113. A penal statute is unconstitutionally vague when it fails to “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited [and] in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) quoted in United States v. Rodgers, 755 F.2d 533, 543-44 (7th Cir.1985). The requirement that criminal statutes must give fair warning of the conduct prescribed implicates due process and is a fundamental right. See United States of America ex rel. Reed v. Lane, 759 F.2d 618, 622 (7th Cir.1985) (citations omitted). The petitioner was convicted under § ll-4(a)(3) of the Illinois Criminal Code which provides:

(a) if any person of the age of seventeen years and upwards commits indecent liberties with a child when he or she performs or submits to any of the following acts with a child under the age of sixteen: ... (3) any lewd fondling of either the child or the person done or submitted to with the intent to arouse and to satisfy sexual desires of either the child or the person or both.

Ill.Rev.Stat. ch. 38, § ll-4(a)(3).

The court does not find the statute so vague as to create any meaningful danger of arbitrary law enforcement; in any case, any problem with the notice that the statute does provide is alleviated by the intent requirement present therein. See Rodgers, 755 F.2d at 544. See also Village of Hoffman Estates, 455 U.S. 489, 499, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982) (intent requirement mitigating a law’s vagueness, especially with respect to the adequacy of notice at the specific conduct is prohibited). A person of “ordinary” intelligence would understand that the acts with which the petitioner was charged were in violation of the statute at issue. Because this claim is without constitutional merit, the failure of counsel to pursue such a claim in either the trial court or on appeal does not constitute cause for precluding the application of the waiver doctrine.

2. Insufficient Information Claim Bradley argues that his trial counsel’s failure to move to dismiss the charges contained in information No. 81-CF-220 constitutes cause for precluding the application of the waiver doctrine. Bradley states that the information charging him with performing a lewd fondling did not allege specific facts constituting the offense and thus was not sufficient to inform him of the charge so that he could prepare his defense or to prevent his being subjected to another prosecution for the same offense. Tracking the language of the statute, the information charged that Bradley had committed the offense of indecent liberties with a child in that he, “a person of the age of seventeen years and upwards, performed a lewd fondling on Vicki Bradley, a child under the age of sixteen years, to-wit: fourteen years of age, done with the intent to arouse or to satisfy sexual desires of either Vicki Bradley or himself.” Tr. 31.

An information which alleges an offense in the language of the statute defining that offense is constitutionally sufficient if it (1) contains all the necessary elements of the offense, (2) informs the defendant of what he must be prepared to meet, and (3) enables him to plead conviction or acquittal as a bar to subsequent prosecution. See Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-1047, 8 L.Ed.2d 240 (1962) cited in United States ex rel. Ballard v. Bengston, 702 F.2d 656, 660 (7th Cir.1983). The information in the case at bar contained all the necessary elements of the offense charged and informed the petitioner of the time and place of the offense and the persons involved.

Bradley additionally argues that the information was void because it uses the disjunctive conjunction “or,” thereby making it uncertain whether he was charged with committing the act with the intent to satisfy the desires of the victim or the desires of himself. Bradley, however, was charged at trial with but one act of lewd fondling. The use of the disjunctive conjunction “or” in setting apart the differing mental states did not render the charge uncertain in the indictment. As the information charged only one physical act, the petitioner’s conviction serves as a double jeopardy bar despite the disjunctive pleading of the mental state element.

As the information charging Bradley with lewd fondling was sufficient to inform him of the charge, to allow him to prepare his defense, and to prevent him from being subjected to another prosecution for the same offense, it was constitutionally sufficient. The failure of petitioner’s trial and appellate counsel to raise this claim in the state courts, therefore, did not constitute “cause” for precluding application of the waiver doctrine.

3. Inadmissible Testimony Claim

Bradley claims that the trial court erred in admitting into evidence certain incriminating statements made by the petitioner to a case worker, Gloria Bickley. The case worker testified at trial that Bradley voluntarily related to her an incident concerning his attempt to demonstrate to his daughter Vicki why he objected to her dating boys, where the petitioner had instructed his daughter to put her arms around him and kiss him upon which he then fondled her breasts. Tr. 67-70. Bradley told the case worker of the incident when she was visiting the Bradley home on November 16, 1981, to follow up on the Illinois Department of Children and Family Services investigation. Tr. 64.

Bradley argues that the admission of the case worker’s testimony violated his constitutional right against self-incrimination under the Fifth Amendment and his right to assistance of counsel under the Sixth Amendment.

Bradley’s claim that his right to counsel was denied by the admission of Bickley’s testimony is without merit. The Sixth Amendment right to counsel attaches at the time adversary judicial proceedings are initiated against a person. See United States ex rel. Johnson v. Lane, 573 F.Supp. 967, 970 (N.D.Ill.1983) (citing Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977)). As formal charges had been filed against the petitioner prior to his interview by Bickley, the petitioner’s right to assistance of counsel under the Sixth and Fourteenth Amendments had attached at the time he was interviewed. See United States ex rel. Johnson, 573 F.Supp. at 970. See also People v. McDonald, 23 Ill.App.3d 86, 90, 318 N.E.2d 489 (2nd Dist.1974) aff'd 62 Ill.2d 448, 343 N.E.2d 489 (1976) (once a defendant is charged either by information, complaint, or indictment in an adversary proceeding, then under Illinois law the defendant is entitled to counsel). The thrust of the petitioner’s claim is that incriminating statements were deliberately elicited from him after the right to counsel had attached in the absence of counsel.

In Messiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), such statements would not be admissible unless petitioner had waived his right to counsel. In Messiah, the Supreme Court stated that it was a violation of the Sixth Amendment right to counsel where a defendant’s own incriminating statements were used against him at his trial, statements which had deliberately been elicited from him after he had been indicted and in the absence of his counsel. See id. at 206, 84 S.Ct. at 1203. The - rule is that once adversary proceedings have commenced against an individual the defendant has the right to legal representation when the government interrogates that defendant. See Brewer, 430 U.S. at 400, 97 S.Ct. at 1240. Where a defendant has been formally charged and the government deliberately elicits incriminating statements from the defendant, such statements are inadmissible at the defendant’s trial because they were obtained in violation of the defendant’s right to counsel. See United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 2188, 65 L.Ed.2d 115 (1980); Messiah, 377 U.S. at 206, 84 S.Ct. at 1203; United States v. Malik, 680 F.2d 1162, 1164 (7th Cir.1982).

The question then is whether the government deliberately elicited incriminating statements from petitioner. Without addressing the question as to whether Bickley was acting as an agent for the state in interviewing the petitioner at his home, the court finds that there was no deliberate elicitation of incriminating information from the petitioner by Bickley. The record demonstrates that the petitioner freely relayed the information to Bickley. The petitioner, while not disputing that the statements were voluntarily made to Bickley, claims that the statements were made in the belief that such statements would be held in confidence and were for the sole purpose of family counselling to effect the return of the petitioner’s children to his home. The petitioner claims that this reliance was based upon representations made by Bickley at the outset of their conversation. See Habeas Petition at 5F. Under Illinois law, however, a social worker is under an affirmative duty to report incidents of child abuse and no right of privileged communication exists as to any conversations between the social worker and the alleged child abuser. See People v. McKean, 94 Ill.App.3d 502, 505, 50 Ill.Dec. 136, 418 N.E.2d 1130 (2nd Dist.1981). This court finds that the information testified to at trial by Bickley was freely relayed by the petitioner to her and was not obtained as a result of deliberate elicitation by Bickley. Therefore, Bradley’s right to counsel was not violated when he made the statements to the case worker Bickley without his counsel being present.

The petitioner also claims that the admission of the case worker’s testimony violated his constitutional rights under the Fifth Amendment against self-incrimination. This claim is also without merit. A voluntary statement by a defendant not in response to interrogation is admissible at trial and not in violation of the defendant’s Fifth Amendment rights against self-incrimination. See Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694 (1966). Protections afforded by Miranda are applicable to questions or interrogation initiated by a law enforcement officer after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Id. at 444, 86 S.Ct. at 1612. See United States v. Stephens, 543 F.Supp. 929, 940 (N.D.Ill.1982). The Fifth Amendment privilege protects against compelled self-incrimination; before a Fifth Amendment violation can be found, there must be some element of compulsion. Where there is no government authority present there can be no compulsion which Miranda rules shield against. See United States v. Burton, 724 F.2d 1283, 1288 (7th Cir.1984). There is a question here as to whether or not Bickley may be considered a “governmental authority.” The court, however, does not need to reach that issue because it finds that the statements made by the petitioner were volunteered and were therefore admissible under Miranda. See Miranda, 384 U.S. at 478, 86 S.Ct. at 1629. Where the governmental authority “made no effort, overt or subtle, to interrogate [the defendant] or to elicit from him in any .way any incriminating statements,” the defendant’s statements were admissible. See United States v. Stephens, 543 F.Supp. at 944 (quoting United States v. Timpani, 665 F.2d 1, 3 (1st Cir.1981)).

In addition, the court finds that the petitioner was not “in custody” at the time of the interview with Bickley. The interview took place in the petitioner’s house. The petitioner could have left or required the interviewer to leave at any time, and the petitioner’s freedom was not restricted in any significant way. The petitioner’s claim that Bickley’s testimony violated his constitutional right against self-incrimination is without merit.

As the petitioner’s claims concerning the admissibility of Bickley’s testimony at his criminal trial are without merit, the failure of his counsel to raise the issue in the state courts is not cause for precluding the application of the waiver doctrine to these claims.

4. Prosecutorial Misconduct Claim

The petitioner alleges that certain remarks made by the state in closing argument at his trial deprived him of a fair trial. Specifically, Bradley complains of the state’s opening remark in rebuttal argument advising the jury that the state considered its ensuing argument to be a statement of fact was improper and not accurate. The petitioner also claims that he was prejudiced by the state’s remark that the testimony of the case worker and Bradley’s son evidenced their belief that the alleged acts had occurred. Bradley also states that the state’s comment that the only defense was that Bradley’s daughter fabricated the incident impermissibly drew attention to Bradley’s failure to testify.

In order to constitute a direct violation of the Fourteenth Amendment, the prosecutor’s comment must have been misconduct so egregious that it deprived the defendant of a fair trial, thus making the resulting conviction a denial of due process. Donnelly v. DeChristophoro, 416 U.S. 637, 643, 647, 94 S.Ct. 1868, 1871, 1873, 40 L.Ed.2d 431 (1974); see United States ex rel. Shaw v. DeRobertis, 755 F.2d 1279, 1281 (7th Cir.1985). The petitioner, therefore, must show that the alleged misconduct made his entire trial unfair; to show this, the petitioner must demonstrate that “it is at least likely that the misconduct complained of affected the outcome of his trial—i.e. caused the jury to reach a verdict of guilty when otherwise it might have reached a verdict of not guilty.” Shaw, 755 F.2d at 1281 n. 1. If the petitioner fails to show a likelihood that the misconduct affected the outcome, the court must deny relief. See id.

In the rebuttal closing argument, the prosecutor stated: “You know this is called closing arguments but I don’t really consider this an argument. I consider it a statement of fact.” Tr. 117. The prosecutor further stated:

Vicki said she had intercourse with her father; sporadic memory? Yes, she had it. The question comes down to; did she make it up or did she have a lapse of memory. That is up to you. That is a question of fact. But I tell you that I find it unbelievable that not only could she make up such a story but get someone else to believe it, not only one person but two.

Tr. 118.

While the state’s assertion that its closing argument was “a statement of fact” was improper, it was not unconstitutionally improper, particularly in light of the trial court’s instructions to the jury that closing arguments were made by the attorneys to discuss the facts and circumstances in the case and were not evidence in the case, and that any statement or argument made by the attorneys which was not based on the evidence should be disregarded by the jury. Tr. 89. Any harm caused by the prosecutor’s statement was corrected by these instructions.

Bradley also argues that when the prosecutor stated that the jurors were to believe the alleged victim because a case worker and the alleged victim’s brother believed her, this amounted to a misrepresentation of the testimony of the witnesses ’ and a plea to the jury that they consider the testimony given for an improper purpose. Specifically, the prosecutor stated

You are being asked to believe by the defense this is the most amazing fourteen-year-old you have ever met. Not only can she make up a story like this, she can con a DCFS worker to believe her. She can con her brother who was obviously not here particularly willing into believing that she said what she said and coming into court and testifying about it. I find that absolutely amazing.

Tr. 117-18. The court does not find that this amounted to such improper conduct that Bradley was deprived of a fair trial.

This is not a case where the prosecutor has attempted to bring into the closing argument facts not in evidence. See Phelps v. Duckworth, 757 F.2d 811, 823 (7th Cir.1985); United States v. Harris, 542 F.2d 1283, 1308-09 (7th Cir.1976); United States v. Fearns, 501 F.2d 486, 489 (7th Cir.1974). The court in the case at bar instructed the jury that any argument made by the attorneys which was not based on the evidence should be disregarded; thus, any misrepresentation made concerning the testimony of the witnesses was cured. As to the charge that the state attempted to get the jury to consider the testimony given for an improper purpose, it is without merit. The prosecution stated that they sought the admission of the testimony in order to corroborate the victim’s testimony and show the relationship of the parties. Tr. 66. The trial court ruled the testimony admissible. Id. Any subsequent characterization of the testimony by the prosecution which went outside this purpose was corrected through the court’s instructions to the jury.

The petitioner also charges that the prosecutor’s remarks in closing rebuttal improperly referred to the petitioner’s failure to testify in his own behalf at the trial. The prosecutor stated: “We have here a case where the only defense is Hey, she made it up. Well, is that good enough in Livingston?” Tr. 118. Direct reference by a prosecutor to a defendant’s decision not to testify at trial is always a violation of the defendant’s Fifth Amendment right against self-incrimination. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965); United States of America ex rel. Burke v. Greer, 756 F.2d 1295, 1300 (7th Cir.1985); United States v. Rodriguez, 627 F.2d 110, 111 (7th Cir.1980). It is also constitutionally impermissible for the prosecutor to indirectly refer to the defendant’s failure to testify if “the language used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be a comment on the defendant’s failure to testify.” Burke, 756 F.2d at 1300 (quoting United States v. Lyon, 397 F.2d 505, 509 (7th Cir.), cert. denied, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117 (1968) citing United States v. Wright, 309 F.2d 735 (7th Cir.1962), cert. denied 372 U.S. 929, 83 S.Ct. 873, 9 L.Ed.2d 733 (1963)).

Where the prosecution has made arguments that government testimony was “undenied” and “uncontradicted,” the Seventh Circuit has found that the remarks were improper and were indirect references to the defendant’s failure to testify, violating the defendant’s Fifth Amendment rights. See Burke, 756 F.2d at 1302. See also United States v. Beuge, 578 F.2d 187, 189 (7th Cir.) cert. denied 439 U.S. 871, 99 S.Ct. 203, 58 L.Ed.2d 183 (1978) (prosecutorial misconduct found where prosecutor repeatedly depicted testimony as “uncontradieted” where it was highly unlikely that at least a portion of the testimony could have been contradicted by anyone other than the defendant); United States v. Fearns, 501 F.2d at 490 (prosecutorial references to “undisputed testimony” were indirect references to the defendants’ failure to testify where there were no persons other than the defendants who could have disputed the prosecution witness’ testimony apart from alibi witnesses); United States v. Handman, 447 F.2d 853, 855 (7th Cir.1971) (prosecutor’s statement that government testimony was “intact, unchallenged and uncontradicted” constituted an indirect reference to the defendant’s failure to testify); United States v. Rodriguez, 627 F.2d at 112 (prosecutorial misconduct required reversal of conviction where prosecutor drew attention to fact that defendant has been silent throughout trial).

The question, therefore, is whether the prosecutor, through her statement, drew attention, even subtle attention, to the failure of the defendant to testify. The court finds that she did not. The prosecutor did not state that the state’s evidence was “undisputed” or “uncontradicted” or remark as to the defendant’s “silence.” The prosecutor was, instead, characterizing the nature of Bradley’s defense, that of attempting to refute the credibility of the testimony of the victim of the crimes with which he was charged. The language used by the prosecutor was not “of such a character that the jury would naturally and necessarily take it to be a comment on the defendant’s failure to testify.” See Burke, 756 F.2d at 1300. The prosecutor’s argument, therefore, did not violate the petitioner’s Fifth Amendment rights.

As there is no merit to the claim of prosecutorial misconduct, trial and appellate counsel’s failure to raise the issue in the state courts does not constitute “cause” for precluding the application of the waiver doctrine to this claim.

5. Trial Judge Questioning Claim

The petitioner argues that the trial court’s questioning of his daughter after her examination by the parties deprived him of a fair trial in that the trial judge assumed a prosecutorial role.'

A trial judge may take an active part in the examination of witnesses during a jury trial. United States v. Baron, 602 F.2d 1248, 1249 (7th Cir.1979) cert. denied 444 U.S. 967, 100 S.Ct. 456, 62 L.Ed.2d 380 (1979); United States v. Kidding, 560 F.2d 1303, 1314 (7th Cir.1977) cert. denied 434 U.S. 872, 98 S.Ct. 217 (1977). The judge, however, may not conduct such questioning in a way as to give the appearance of partiality to the jury, thereby prejudicing the defendant. See Baron, 602 F.2d at 1249; Kidding, 560 F.2d at 1314; United States v. Tobin, 426 F.2d 1279, 1282 (7th Cir.1970); United States v. Hill, 332 F.2d 105, 106 (7th Cir.1964).

The petitioner specifically alleges that during the state’s presentation of its case, following the direct examination, cross-examination, and redirect examination of the state’s witness Vicki Bradley, the trial judge asked a series of questions to the witness, in which he assumed the role of prosecutor.

At the close of the state’s redirect examination, the court questioned Vicki Bradley as follows:

THE COURT: Did your parents bedroom have a door on it leading into the living-room?
THE WITNESS: Yes.
THE COURT: Was there another way to get in and out of their bedroom?
THE WITNESS: No.
THE COURT: Can you remember whether the door was open or closed?
THE WITNESS: Could you please restate that?
THE COURT: Can you remember whether the door was open or closed at the time of the things that you have testified to here?
THE WITNESS: Closed.
THE COURT: Did the door lock?
THE WITNESS: Yes.
THE COURT: How did you go about locking it?
THE WITNESS: I did not.
THE COURT: Who did?
THE WITNESS: I am not for sure if it was locked or not.
THE COURT: How would you go about locking it, if you were to wish to have it locked?
THE WITNESS: You would pull it shut and then with one of them little hooks, you would hook it.
THE COURT: There was a hook and an eye?
THE WITNESS: Yes.
THE COURT: How many beds were in the bedroom?
THE WITNESS: One.
THE COURT: And how large a bed was it?
THE WITNESS: It was big enough for two people.
THE COURT: Was there other furniture in the bedroom too?
THE WITNESS: Yes.
THE COURT: What was it?
THE WITNESS: There was two dressers and like a dresser with a closet on it.
THE COURT: A chair?
THE WITNESS: No.
THE COURT: Where did these activities take place in the bedroom?
THE WITNESS: On the bed.
THE COURT: I have no further question.

You may step down, and thank you. Tr. 60-62.

Having examined the trial court’s .questioning of the witness in the context of -the entire examination of the witness -by .all the parties, this court concludes that questions asked were not designed to and did not in fact prejudice the defendant. The trial court was merely attempting to clarify several points raised in direct and cross-examination by the parties in the case, namely, questions concerning if there was a lock on the parent’s bedroom door, whether the door was locked during the alleged activities, and what furniture was in the bedroom. The questions posed in no way communicated the judge’s beliefs to the jury concerning the defendant’s guilt. Unlike the Tobin and Hill cases, where the judge interrogated the defendant himself, here the objection by the petitioner is to questions posed by the trial judge to a government witness which the petitioner claims undercut his cross-examination of the witness establishing her lack of credibility through demonstrating her lack of recollection of details of the events alleged.

This court finds that the trial judge’s questioning was not so intrusive or prejudicial as to make the petitioner’s trial fundamentally unfair. The petitioner’s trial counsel’s failure to challenge this questioning at trial or his appellate counsel’s failure to raise the issue on appeal did not constitute “cause” for precluding waiver of this claim in this court.

6. Double Jeopardy Claim

The petitioner was initially charged with committing indecent liberties with his daughter through sexual intercourse and lewd fondling on November 2, 1981, in information No. 81-CF-220. Prior to trial, the additional charge of having committed indecent liberties with his daughter through lewd fondling on November 3, 1981, in information No. 81-CF-234, was added. Information No. 81-CF-234 was dismissed with prejudice by the trial court on the state’s nolle proseque motion, after the jury was impaneled. The petitioner was subsequently convicted of the lewd fondling of his daughter on November 2, 1981. The petitioner asserts that “cause” is established because his trial counsel failed to. raise a double jeopardy claim at trial, and his appellate counsel failed to raise the claim on appeal.

The Fifth Amendment Double Jeopardy Clause protects a criminal defendant from repeated prosecutions for the same offense. United States ex rel. Clauser v. McCevers, 731 F.2d 423, 425 (7th Cir.1984) (citing United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1078, 47 L.Ed.2d 267 (1976)); see United States ex rel. Woollums v. Greer, 728 F.2d 918, 920 (7th Cir.1984). Specific to the facts in the case at bar, double jeopardy prevents a second prosecution for the same offense after acquittal. See Woollums, 728 F.2d at 920. The petitioner argues that since jeopardy attaches when the jury is impaneled and sworn, Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), he could not be prosecuted by the state for any lewd fondling taking place on November 3, 1981, as the charge in the information relating to events on that date was dismissed with prejudice. Bradley contends that the jury in his criminal trial in fact convicted him for acts occurring on November 3, 1981, rather than on November 2, 1981. The petitioner points to three events which lead to this conclusion. In its opening statement, the prosecutor referred to the act of lewd fondling as occurring on November 3, 1981. Tr. 38. Also, during the cross-examination of Vicki Bradley, the witness referred to the incident of lewd fondling as occurring on November 3, 1981. Tr. 51. In addition, the petitioner notes that the jury was instructed that if they found that Bradley committed the offense charged, they need not find that it was committed on the particular date charged, November 2, 1981. Tr. 93.

It is apparent from the record that there was sufficient evidence before the jury which demonstrated that the petitioner was convicted for events that occurred on November 2, 1981, not November 3, 1981. The witness Vicki Bradley in several instances specifically testified that the events in question occurred November 2, 1981. Tr. 45, 52. Any conflicting testimony given by the witness reflected upon her credibility, a question for the jury’s consideration.

While it is true that the prosecutor in her opening comments did refer to the charged offense as having occurred November 3, 1981, this reference was to what Vicki Bradley would testify to at trial. Vicki Bradley, in fact, testified to events she stated occurred on November 2, 1981. In any event, the opening remarks by the prosecutor were not evidence, and the jury was so charged. Tr. 89. The single reference by the prosecutor in opening statements does not lead to the conclusion that the jury convicted the petitioner for the events alleged to have occurred on November 3, 1981.

The petitioner also claims that the trial court improperly charged the jury that if they found that Bradley had committed the offense, the prosecutor did not need to prove that the events occurred on the date charged, that is, November 2, 1981. Tr. 93. “[Njormally time is not a material element of a criminal offense unless made so by the statute creating the offense ... and that the ‘on or about’ instruction is normally proper.” United States v. King, 703 F.2d 119, 123 (5th Cir.1983) cert. denied 104 S.Ct. 127 (citations omitted). The petitioner asserts, however, that the instruction given to the jury resulted in his being convicted of the November 3, 1981, charge, and that the instruction should have specified that the state had to prove that the events charged at trial in fact occurred on November 2, 1981.

The court finds that instruction given was proper and the petitioner’s double jeopardy rights were not violated. The instruction given by the trial court was proper, as time was not a material element of the charged criminal offense. Nor was the petitioner prejudiced by the given instruction. The petitioner was allowed to cross-examine the state’s key witness, Vicki Bradley, at length and attack her credibility; in addition, the trial court instructed the jury that it was sufficient if they found that the offense charged occurred, and the government was not required to prove the offense occurred on the particular day charged. Cf. King, 703 F.2d at 124 (citing United States v. Arteaga-Limones, 529 F.2d 1183, 1194 (5th Cir.) cert. denied 429 U.S. 920, 97 S.Ct. 315, 50 L.Ed.2d 286 (1976)).

The fact that the petitioner had been originally charged with the lewd fondling of Vicki Bradley on November 3, 1981, before that charge was dismissed, did not lead to confusion among members of the jury resulting in the conviction of the petitioner for events occurring on November 3, 1981. At the beginning of the trial, the indictment was read to the jury, and it specified the date of the charged offense as November 2, 1981. This date was referred to during the trial and the jury instructions referred to the indictment in defining the offense as lewd fondling having occurred on November 2, 1981. Since this court finds that no confusion was caused, the trial court did not err in stating that the government was not required to prove that the charged offense occurred on the particular date charged, November 2, 1981. See United States v. Underwood, 588 F.2d 1073, 1077 (5th Cir.1979) re’hrg denied 591 F.2d 102 (1979).

Having carefully reviewed both the record and the jury charge, the court concludes that the petitioner was not subjected to double jeopardy by his conviction. The petitioner was not subject to a second prosecution for the charge against him concerning events occurring on November 3, 1981, the charge that was dismissed with prejudice subsequent to the impaneling of the jury. As the double jeopardy claim was without merit, the failure of petitioner’s trial counsel and appellate counsel to raise the claim does not constitute “cause” for precluding application of the waiver doctrine as to this claim.

7. Denial of Prompt Preliminary Hearing Claim

The petitioner asserts that he was denied a prompt preliminary hearing and probable cause determination prior to being held for trial.

The information charging the petitioner was filed on November 6, 1981; Bradley’s preliminary hearing was set for November 23, 1981. At the scheduled hearing, the state moved for a continuance because it had summoned the wrong case worker as a witness. The trial court rescheduled the hearing for December 8, 1981. The petitioner claims that the delay in having this preliminary hearing denied him of his rights to due process. The court concludes, however, that under the facts of the case, the delay resulting from the granting of the continuance did not deprive the petitioner of a fundamentally fair trial.

The petitioner also states that there was never any probable cause determination at the time of the December 8, 1981, preliminary hearing as to the charge of lewd fondling.

At the preliminary hearing and arraignment of the petitioner on information No. 81-CF-220, charging Bradley with two counts of indecent liberties with a child, the trial court, after a full adversarial hearing, including the examination of witnesses, found that based on the evidence in the hearing, there was probable cause to believe that an offense had been committed by the petitioner for which he should be held to answer. Tr. 16. The preliminary hearing concerned both counts under information No. 81-CF-220, the charge of sexual intercourse and the charge of lewd fondling. Based on the evidence before the trial court, a probable cause determination as to both counts was made and was proper.

As there is no merit to the claim, “cause” did not exist which would preclude waiver of the claim before this court because of trial and appellate counsel’s failure to raise the claim before the state courts.

8. Prosecutorial Bad Faith Claim

The petitioner claims that his constitutional rights were violated by the action of the prosecutor in the nolle prosequi of information No. 81-CF-234 after the jury had been sworn, in that it suggested the petitioner’s guilt as to charges which were not to be tried.

In its opening comments to the jury venire, the trial judge discussed the charges being brought against the petitioner, including at that time, the charges under case 81-CF-234. Tr. 31-32. After a jury panel was selected, the prosecutor moved to dismiss the charges brought under information No. 81-CF-234. Without objection from the petitioner’s counsel, the motion was granted, and the jury was instructed that the case 81-CF-234 had been dismissed on motion of the prosecutor. Tr. 34-36.

This court finds no resulted prejudice to the petitioner from the dismissal with prejudice of case 81-CF-234. This court likewise finds no evidence of bad faith on the part of the prosecutor in withdrawing the charge from the trial. Therefore, petitioner’s trial and appellate counsel’s failure to raise the claim in the state courts did not constitute “cause” precluding application of the waiver doctrine.

9. Evidence of Other Crimes Claim

The petitioner alleges that the state introduced into evidence other uncharged acts of indecent liberties by petitioner upon Vicki Bradley in violation of petitioner’s Fifth, Sixth, and Fourteenth Amendment rights. The petitioner further alleges that the trial judge’s instructions the jury permitted the jury to find the petitioner guilty of such uncharged acts.

The court has examined the record at length and finds no error of constitutional significance. Under Illinois law, in prosecution of a defendant for indecent liberties with his minor daughter, it is not error to admit evidence of prior sexual acts between the defendant and his daughter. People v. McMillan, 86 Ill.App.3d 208, 211, 41 Ill.Dec. 15, 407 N.E.2d 207 (2nd Dist.1980). Such testimony is deemed proper to show the relationship and familiarity of parties notwithstanding the argument that the testimony should have been confined to the particular charged offense and claim that the court might have found the defendant guilty on the basis of prior acts. See People v. Cleveland, 83 Ill.App.3d 675, 682, 39 Ill.Dec. 285, 404 N.E.2d 876 (1st Dist.1980); People v. Wendt, 104 Ill.App.2d 192, 205-06, 244 N.E.2d 384 (1st Dist1968). The admission of Vicki Bradley’s testimony as to other indecent liberties encounters between herself and the petitioner were proper under Illinois law. The court finds that the admission of the testimony did not amount to any violation of the petitioner’s constitutional rights. Failure of appellate counsel to raise the claim on direct appeal is not “cause” for precluding application of the waiver doctrine as to this claim.

10. Summary

The court, after an exhaustive discussion of the petitioner’s claims, concludes that the petitioner has failed to demonstrate “cause” for the failure of his trial and appellate counsel to raise these claims before the state courts. Under Reed v. Ross and Engle v. Isaac, therefore, this court must find that the petitioner has “waived” his right to bring these constitutional claims before this court and is precluded from habeas corpus relief as to them.

B. Ineffective Assistance of Counsel

As a separate claim, the petitioner seeks habeas relief on the ground that the performance of his trial and appellate counsel was so ineffective as to be an independent violation of the petitioner’s Sixth Amendment rights. As discussed previously, this claim was not waived, and will be decided by this court on its merits.

The proper standard for attorney performance is that of “reasonably effective assistance.” See Strickland v. Washington, 466 U.S. 668, -, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). Therefore, “[w]hen a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. Where a convicted defendant claims that counsel’s assistance was so defective as to require reversal of a conviction, in addition to showing that counsel’s performance was deficient, the deficient performance must have prejudiced the defense so as to deprive the defendant of a fair trial. Id. 104 S.Ct. at 2065. The Due Process Clause of the Fourteenth Amendment also guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. Evitts v. Lucey, — U.S.-,-, 105 S.Ct. 830, 835, 83 L.Ed.2d 821 (1985).

The court finds that the petitioner’s trial and appellate counsel both gave “reasonably effective assistance” to the petitioner and, therefore, his Sixth and Fourteenth Amendment rights were not violated. The petitioner’s trial counsel objected to matters raised at trial, cross-examined state witnesses, moved for a directed verdict at the close of the state’s case, and gave an effective closing statement challenging the credibility of the state’s witnesses and its failure to prove its case against the petitioner. In addition, the petitioner’s trial counsel moved for a new trial, and called witnesses to testify at the sentencing hearing. Considering all the circumstances, the trial counsel’s representation did not fall below an objective standard of reasonableness, and no prejudice resulted to the petitioner which adversely affected the outcome of his trial.

Nor was the petitioner’s appellate counsel so incompetent as to violate the petitioner’s due process rights under the Fourteenth Amendment. A criminal defendant is guaranteed effective assistance of counsel on his first appeal as of right, see Evitts, — U.S. at -, 105 S.Ct. at 835; in the case at bar, the petitioner’s appellate counsel gave reasonably effective assistance. Although the appellate counsel only raised one ground for relief on direct appeal, namely, the propriety of the sentence given the petitioner, this was a tactical decision by the attorney to focus on one central issue; under the circumstances of the case, the decision by the appellate counsel was reasonable. See Jones v. Barnes, 463 U.S. 745, 748-57, 103 S.Ct. 3308, 3311-15, 77 L.Ed.2d 987 (1983). Moreover, no prejudice resulted from the appellate counsel’s representation which adversely affected the outcome of the petitioner’s case. As discussed previously in this opinion, the claims waived by the appellate counsel in not bringing them before the state appellate court were without merit, and thus would not have affected the disposition of the petitioner’s case.

The court finds that the petitioner was not unconstitutionally deprived of his right to reasonably effective trial and appellate counsel.

IV. CONCLUSION

The court concludes that the constitutional claims concerning petitioner’s trial raised before this court were waived by the failure to present them to the state courts. The court also concludes that there was no denial of effective assistance of trial and appellate counsel. Therefore, the court hereby enters summary judgment in favor of the respondents. The petition for writ of habeas corpus is denied. IT IS SO ORDERED.

      . Most courts that have addressed the issue have held that habeas petitioners are not necessarily required to establish a violation of their Sixth Amendment right to effective assistance of counsel to satisfy cause for a procedural default under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The courts generally have drawn a distinction between counsel’s tactical decisions and ignorance or oversight. If the failure to object or appeal was a tactical decision by counsel, the petitioner is required to prove that the counsel’s representation violated the sixth amendment. If the failure was due to counsel’s ignorance or oversight, a lesser showing of incompetency is required.

        Clay, 749 F.2d at 433 n. 4 (citations omitted).

      . If a prosecutor is found to have improperly drawn attention to the failure of the defendant to testify, the next question is whether the defendant was prejudiced, since "[a]n arguably improper remark will require determination of its probable effect on the jury in combination with all the evidence presented. If the evidence of guilt is sufficient to find beyond a reasonable doubt that the error was harmless, reversal may not be required.” United States v. Buege, 578 F.2d 187, 189 (7th Cir.1978).

      . The Supreme Court stated that it expressed no opinion as to the content of appropriate standards for judging claims of ineffective assistance of appellate counsel. Evitts, - U.S. at -n. 8, 105 S.Ct. at 436 n. 8. This court will apply, in the absence of other guidelines, the "reasonably effective assistance” standard to appellate counsel's performance.


source: Caselaw Access Project

license: Public Domain

text:
    Robert MOODY, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    No. 84-2320.
    United States District Court, C.D. Illinois, Danville Division.
    June 24, 1985.

      Diane M. Sauer, Land of Lincoln Legal Assistance Foundation, Champaign, 111., for plaintiff.
    Paul L. Kanter, Asst. U.S. Atty., Dan-ville, 111., for defendant.
   ORDER

BAKER, Chief Judge.

The plaintiff, Robert Moody, submitted this action pursuant to 42 U.S.C. § 1383(c)(3) seeking judicial review of the final decision of the Secretary of Health and Human Services (Secretary) denying his application for Supplemental Security Income benefits. The Secretary has filed a cross motion for an order affirming her final decision.

I.

The plaintiff submitted an application for Supplemental Security Income benefits on April 12, 1982, in which he alleged “mental problems” as his disabling impairment. (Transcript 144-153.) His initial application was denied on July 8, 1982. (Tr. 164-66.) The plaintiffs request for reconsideration (tr. 167) was denied on October 15, 1982. (Tr. 168-169.) The plaintiff then requested a hearing before an Administrative Law Judge (ALJ). (Tr. 226.) A hearing was held on July 29, 1983 (tr. 89-143), and the AU subsequently ruled on November 7,1983, that the plaintiff was not under a disability within the scope of the Social Security Act. (Tr. 75-82.) On April 23, 1984, the Appeals Council denied the plaintiffs request for review of the AU’s decision. (Tr. 66-67.) The plaintiff then filed a request to reopen the decision for the consideration of further evidence. (Tr. 5-65.) Upon consideration of the additional evidence, the Appeals Council again affirmed the AU’s decision. (Tr. 4.) The plaintiff subsequently filed this action on August 15, 1984, seeking judicial review of the Secretary’s final decision.

The plaintiff raises three grounds in support of his motion for reversal of the Secretary’s final decision. First, the plaintiff claims that the Secretary’s use of 20 C.F.R. § 416.920(c), the “severity step”, was improper because it increases the initial burden on disability claimants in a manner inconsistent with the Social Security Act (the Act). Second, the plaintiff claims that the Secretary’s use of 20 C.F.R. § 416.922 conflicted with the Act’s requirement that the combined effects of all of a claimant’s impairments be considered in a disability determination. Third, the plaintiff claims that the Secretary’s conclusion that the plaintiff is not disabled is not supported by substantial evidence.

II.

First, the plaintiff challenges the validity of 20 C.F.R. § 416.920(c) as violative of the Social Security Act in that the regulation does not provide for the consideration of vocational factors, i.e., age, education, and work experience. Instead, the regulation requires a claimant to establish that an impairment is “severe,” i.e. that it significantly limits the ability to perform “basic work activities.” As a result, the plaintiff claims that the “severity step” impermissibly increases the initial burden of establishing a prima facie case of disability.

The regulations in Part 416 of Title 20 of the Code of Federal Regulations govern disability claims by uninsured applicants and are very similar to the regulations in Part 404 governing disability claims by applicants insured under the Social Security system. The statutory requirements for establishing disability are similar in both Title II (insured applicants) and Title XVI (uninsured applicants) of the Act. 42 U.S.C. §§ 423(d) and 1382c(a)(3). The defendant Secretary administers the Supplemental Security Income (SSI) program and promulgates regulations and rulings interpreting the Social Security Act.

A.

Prior to full consideration of the plaintiffs claims, a trip into the “byzantine labyrinth” of the Social Security Act and regulations is warranted. See Wallschlaeger v. Schweiker, 705 F.2d 191, 194 (7th Cir.1983). Under the SSI program, a claimant is considered disabled if he or she 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 twelve months____

42 U.S.C. § 1382c(a)(3)(A). The Act further provides that “for purposes of” applying this definition, 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....

42 U.S.C. § 1382c(a)(3)(B). The Secretary is authorized to establish rules and regulations, consistent with the Act, governing the determination of disability claims. 42 U.S.C. §§ 405(a) and 1383(d)(1).

Pursuant to this regulatory authority, the Secretary established a five-step sequential test for determining whether a claimant is disabled. 20 C.F.R. § 416.920. A finding that a claimant is disabled or not disabled at any point of the review process is conclusive and terminates the analysis. 20 C.F.R. § 416.920(a). First, an applicant who is currently working is presumptively not disabled. 20 C.F.R. § 416.920(b). Second, the Secretary determines, solely on the basis of medical factors, whether the claimant has a “severe” impairment which significantly limits his or her physical or mental ability to do basic work activities. 20 C.F.R. § 416.920(c). Subsection (c), the “severity step,” specifically provides that the Secretary will not consider age, education, or work experience at this second step. The plaintiffs first ground for reversal concerns an alleged increase in the burden of proof on disability claimants in this second step which is inconsistent with the Act.

Third, if an applicant is found to have a “severe” impairment within the scope of the second step, the Secretary considers whether the impairment is one which is listed in Appendix 1 of the Regulations or is equal to a specific listing. 20 C.F.R. § 416.920(d). If a claimant satisfies this third step, he or she is presumptively disabled. The fourth step is considered if a claimant’s impairment, though deemed “severe” under the second step, is not a “listed” impairment. A claimant is not disabled under the fourth step if his or her “residual functional capacity” permits the performance of his or her past work. 20 C.F.R. § 416.920(e). Fifth, a claimant with a “severe” but not a “listed” impairment who is unable to do his or her past work is disabled if he or she cannot do other work in light of his or her age, education, and past work experience. 20 C.F.R. § 416.920(f)(1). See also Cannon v. Harris, 651 F.2d 513, 517 (7th Cir.1981). To calculate a claimant’s ability to do past work, the Secretary generally uses a system of medical-vocational guidelines set forth in Subpart P, Appendix 2 of the Regulations.

The plaintiff was found to be not disabled at the second step of the sequential process when the AU found that he does not suffer from a “severe” impairment which would impair his ability to perform “basic work activity.” (Tr. 77, 82.) The Regulations explicitly define what the Secretary means by a non-severe impairment:

(a) Non-Severe Impairment. An impairment is not severe if it does not significantly limit your physical or mental abilities to do basic work activities.
(b) Basic Work Activities. When we talk about basic work activities, we mean the abilities and aptitude necessary to do most jobs. Examples of these include—
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;
(2) capacities for seeing, hearing, and speaking;
(3) understanding, carrying out, and remembering simple instructions;
(4) use of judgment;
(5) responding appropriately to supervision, co-workers, and usual work situations; and
(6) dealing with changes in a routine work setting.

20 C.F.R. § 416.921. Following the sequential evaluation process, the AU concluded, on medical factors alone, that the plaintiff does not suffer from a “severe” impairment which limits his ability to perform basic work functions.

B.

The plaintiff claims that a fatal inconsistency exists between the “severity” requirement of 20 C.F.R. § 416.920(c) and the definition of disability in the Social Security Act. Specifically, the plaintiff argues that the use of medical factors alone to find that impairments which prevent a claimant from doing past work are not “severe,” and thus not disabling, contravenes the Congressional intent that the Secretary consider age, education, and work experience during the disability determination process. Accordingly, the plaintiff claims that the “severity step” impermissibly increases a claimant’s initial burden of proof. The AU found that the plaintiff was not disabled on medical factors alone without considering the severity of the plaintiff’s impairments in light of his vocational characteristics. (Tr. 77, 82.)

In Johnson v. Heckler, 593 F.Supp. 375 (N.D.Ill.1984), the court determined that the “severity step” embodied in 20 C.F.R. § 416.920(c) impermissibly increases the claimant’s statutory burden of proof. The court in Johnson found that, by substituting “basic work activity” in the second step for “previous work,” the “severity step” increases the showing which a claimant must make in order to establish a prima facie case of disability. Id. at 380. For. the following reasons, the court concurs with the result reached by the Northern District of Illinois in Johnson.

1.

The basic statutory definition of disability provides that:

An individual shall be considered to be disabled for purposes of this subchapter if he 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 twelve months.

42 U.S.C. § 1382c(a)(3)(A). This definition requires consideration of both the medical condition and functional capabilities of a claimant. A claimant’s inability to engage in any substantial gainful activity is established by reference to the claimant’s age, education, and work experience. See 42 U.S.C. § 1382e(a)(3)(B); 20 C.F.R. § 416.-971. The language “by reason of any medically determinable physical or mental impairment” is a clause limiting entitlement to claimants who can demonstrate a medically determinable basis for their inability to work.

Congress, however, did not merely provide a statutory definition of disability. It also required the Secretary to adopt appropriate regulations. 42 U.S.C. § 405(a) provides:

(a) The Secretary shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.

See also 42 U.S.C. § 1383(d)(1). Pursuant to this section, the Secretary is empowered to make affirmative rules and regulations to carry out the Act’s mandate. These regulations, however, may not be “inconsistent with the provisions of” the Act.

Because the Social Security Act expressly entrusts the Secretary with implementing its disability provisions by regulation, judicial review is limited to a determination of whether the regulations exceed the Secretary’s statutory authority and whether they are arbitrary and capricious. Heckler v. Campbell, 461 U.S. 458, 466, 103 S.Ct. 1952, 1957, 76 L.Ed.2d 66 (1983); Herweg v. Ray, 455 U.S. 265, 275, 102 S.Ct. 1059, 1066, 71 L.Ed.2d 137 (1982); Schweiker v. Gray Panthers, 453 U.S. 34, 44, 101 S.Ct. 2633, 2640, 69 L.Ed.2d 460 (1981). Implicit in such review is the rule that “regulations, in order to be valid, must be consistent with the statute under which they are promulgated.” Johnson v. Heckler, 593 F.Supp. 375, 379 (N.D.Ill.1984), citing United States v. Larionoff, 431 U.S. 864, 873, 97 S.Ct. 2150, 2156, 53 L.Ed.2d 48 (1977). An agency’s interpretation of the statute cannot supercede the statutory language. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-16, 91 S.Ct. 814, 822-823, 28 L.Ed.2d 136 (1971). Because of the statutory authorization of the Secretary’s regulatory power, a claimant attacking the regulations “must make a strong case of inconsistency with the statute” if he or she is to succeed. See McCoy v. Schweiker, 683 F.2d 1138, 1144 (8th Cir.1982) (en banc).

2.

The basic statutory definition of disability does not require that a claimant prove that he or she suffers from a “severe” impairment in order to establish a prima facie case of disability. 42 U.S.C. § 1382c(a)(3)(A) broadly refers to “any” impairment. Accordingly, a regulation requiring a claimant to show that he or she suffers from a medically determinable impairment would be logically consistent with the scope of the Social Security Act. A regulation, however, enabling the Secretary to deny disability benefits to a claimant whose ability to work is markedly restricted due to diagnosed physical or mental impairments because these impairments are not deemed “severe” runs counter to the language and scope of 42 U.S.C. § 1382c(a)(3)(A). In addition, 42 U.S.C. § 1382c(a)(3)(B) refers to an impairment which is “of such severity that” a claimant “is not only unable to do his previous work but cannot, considering his age, education, and work experience,” perform any substantial gainful work.

While § 1382c(a)(3)(B) refers to the “severity” of a claimant’s impairments, it clearly defines the requisite level of severity by reference to a claimant’s present ability to work. Nothing in the statutory definition of disability suggests that the severity of an impairment is an independent variable that alone can serve as a basis for a finding that a claimant is not disabled. See Smith v. Heckler, 595 F.Supp. 1173, 1178 (E.D.Cal.1984). Similarly, no mention of severity is made in the definition of “impairment” in 42 U.S.C. § 1382c(a)(3)(C) (abnormalities demonstrable by clinical and laboratory diagnostic techniques). The Act does not suggest that claimants with medically determinable abnormalities who are unable to do their past relevant work can be found not disabled prior to consideration of age, education, and work experience because their impairments do not meet a particular level of severity. Indeed, the Social Security Act provides that impairments are to be established as disabling by reference to a claimant’s present ability to work in light of his or her medical condition and vocational characteristics. See generally Hundrieser v. Heckler, 582 F.Supp. 1231, 1236-37 (N.D.Ill.1984). If the “severity” concept were applied in a manner consistent with the Act, a finding that a claimant’s impairment is not “severe” would subsume a finding that it does not prevent him from performing his past work. See McCullough v. Heckler, 583 F.Supp. 934, 939 (N.D.Ill.1984). Accordingly, the statutory language is fundamentally incompatible with that of the “severity step” in 20 C.F.R. § 416.920(e). The “severity step” permits the Secretary to deny benefits on medical factors alone after a claimant establishes his or her inability to perform past relevant work. On its face, the Social Security Act does not appear to require consideration of vocational factors and residual functional capacity at the second step of the sequential process. The court finds, however, that the “severity step” is invalid because it improperly increases a claimant’s burden of establishing a prima facie case of disability as defined in the Social Security Act. See Johnson v. Heckler, 593 F.Supp. 375, 379 (N.D.Ill.1984); see also Hundrieser v. Heckler, 582 F.Supp. 1231, 1240 (N.D.Ill.1984).

A disability claimant carries the ultimate burden of persuasion, as well as the initial burden of going forward with the evidence. A claimant satisfies the burden of going forward and makes a prima facie case of disability upon a demonstration that certain impairments prevent the claimant from doing his or her past work. At that point, the burden of going forward shifts to the Secretary to establish the availability of another form of substantial gainful activity which the claimant could perform. See generally Stark v. Weinberger, 497 F.2d 1092, 1097-98 (7th Cir.1974).

No change has been made in the statutory definition of disability to support a substantial increase in the burden which a claimant must meet in order to make out a prima facie case of disability. The inclusion of the phrase “basic work activities” in the “severity step”, however, increases the showing which a claimant must make in order to establish a prima facie case of disability. While an impairment may not affect “basic work activities,” it may still prevent a claimant from doing his or her previous work. See Scruggs v. Schweiker, 559 F.Supp. 100, 103 (M.D.Tenn.1982). The “severity step” has served to “short circuit” the disability analysis by a summary conclusion of non-disability without allowance for the specific findings concerning past work and vocational factors that are mandated by the statute. Smith v. Heckler, 595 F.Supp. 1173, 1179 (E.D.Cal.1984).

In contrast to the “severity step”, the Social Security Act plainly states that a claimant need only show that an impairment prevents him from doing his previous work in order to make out a prima facie case of disability. See Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir.1982). In this case, the AU concluded that “a decision on whether the claimant is disabled cannot be based on work activity.” (Tr. 77). The AU considered only medical factors in concluding that the plaintiff has no significant limitation of his ability to perform “basic work activity.” (Tr. 77, 82.) Accordingly, the plaintiff was prevented from establishing a prima facie case under the existing burden of proof rules by showing that his impairments prevent him from performing his past relevant work. By finding that the plaintiff’s impairment was not “severe,” and thus not disabling, the Secretary in effect imposed a substantial additional requirement, i.e. proof of impairment severity, which the plaintiff must meet in order to make out a prima facie case of disability.

By requiring disability claimants unable to do their past work due to an impairment to also prove that their impairment is severe has the effect of significantly restricting entitlement. See Hundrieser, 582 F.Supp. at 1240. While substantial deference must be given to the Secretary in her administrative capacity, a significant change in the standards of entitlement is not permissible administrative action, absent some expression of Congressional assent. Accordingly, since the “severity step” increases a claimant’s burden of proof as defined by the Social Security Act, the regulation is inconsistent with the Act and is beyond the scope of the Secretary’s statutory authority. 42 U.S.C. §§ 405(a) and 1383(d)(1). See also McCoy v. Schweiker, 683 F.2d 1138, 1143-44 (8th Cir.1982) (en banc).

3.

The five-step sequential processes in Parts 404 and 416 of the Regulations were intended to be a “consolidation and elaboration of longstanding medical-vocational evaluation policies.” See 43 Fed.Reg. 9284, 9295 (March 7, 1978). The purpose of the sequential tests was “not to increase or decrease the allowance/denial ratio ...,” id., but to improve “program efficiency ... by limiting the number of cases in which it would be necessary to follow the vocational evaluations sequence ____” See 45 Fed. Reg. 55574 (Aug. 20, 1980). The “severity step” apparently was meant to be used to support a finding of “not disabled” only in those instances where an impairment is presumptively not disabling, i.e. when no person suffering from that impairment would be found disabled. See 42 Fed.Reg. 9284, 9296 (March 7, 1978); see also Hundrieser v. Heckler, 582 F.Supp. 1231, 1239 (N.D.Ill.1984). Accordingly, the administrative history of the “severity step” indicates that it was intended to be no more than a restatement of existing regulations and was meant to apply only to the narrow eases where impairments are so minor that no person with such impairments could be found to be disabled. See Hundrieser, 582 F.Supp. at 1239 and the authorities cited. The “severity step” then is meant to be a short-cut procedure designed to save the administrative effort needed to process claims which supposedly are predictably groundless. See Boeder v. Heckler, 592 F.Supp. 1489, 1496 (D.N.J.1984); McCullough v. Heckler, 583 F.Supp. 934, 937 (N.D.Ill.1984). Courts, however, have recognized that the Secretary’s decisions are often “result oriented,” despite the minor role originally contemplated for the concept of severity. See Boeder, 592 F.Supp. at 1501; McCullough, 583 F.Supp. at 938. The efficiency rationale underlying the “severity step,” i.e. to limit the number of cases in which vocational factors would be considered, apparently can be accomplished by increasing the number of claims denied on medical grounds alone.

Several courts have viewed the conflict between the statutory definition of severity and the “severity step” as resulting from an overbroad interpretation of the regulation by the Secretary. See e.g. Hundrieser, 582 F.Supp. at 1241. See also Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.1984) (per curiam); Oster v. Heckler, 594 F.Supp. 523, 526 (D.N.D.1984); Trafton v. Heckler, 575 F.Supp. 742, 745 (D.Me.1983). These decisions recognize the “severity step” to be an initial de minimus requirement and that the bulk of disability terminations would be accomplished through reference to a claimant’s work experience, age, and education, in combination with his impairments. The regulation, however, does not use language applicable to a de minimus threshold standard. The “severity step” does not describe non-severe impairments as those with such a minimal effect that they would not interfere with a claimant’s ability to work regardless of age, education, and work experience. Instead, the regulation requires proof by medical factors of a “severe” impairment which limits basic work abilities without consideration of age, education, and work experience.

The basic conflict, however, arises from the regulation’s reference to “basic work activities” instead of the statutory reference to “previous work.” See Johnson v. Heckler, 593 F.Supp. 375, 381 (N.D.Ill.1984). While not expressly invalidating the “severity step,” the Middle District of Tennessee ruled that where the Secretary ends the evaluation process with the “severity step” the court would assume on review that the AU would have found a plaintiff able to return to his or her past work had the evaluation continued. Scruggs v. Schweiker, 559 F.Supp. 100, 103 (M.D. Tenn.1982). The court in Scruggs criticized the “severity step” for failing to provide for consideration of clinically established impairments in relation to a claimant’s vocational characteristics. Id. See also Smith v. Heckler, 595 F.Supp. 1173, 1179-80 (E.D.Cal.1984); Dixon v. Heckler, 589 F.Supp. 1494, 1502-10 (S.D.N.Y.1984) (courts preliminarily enjoin use of severity step).

The District of New Jersey has recognized that a generalized or implicit vocational component, i.e. basic work activities, included in the “severity step” is “a demonstrably false assumption which can result in the denial of benefits to whole groups of persons who clearly meet the legislative definition of disability.” Baeder v. Heckler, 592 F.Supp. 1489, 1500 (D.N.J.1984). The Court in Baeder recognized that, without such a vocational assumption, the Secretary could not determine whether a claimant’s impairment would lead to an eventual finding of disability/non-disability without actually proceeding through the remaining steps in the sequential evaluation process. Id. Accordingly, the Court in Baeder found that the “severity step” is not rationally related to the statute and, therefore, is invalid. Id. Similarly, the regulation’s reference to “basic work activities” is inconsistent with the Act’s reference to “previous work.” Consequently, the application of the “basic work activities” standard impermissibly increases the burden on the claimant in establishing a prima facie case of disability. Such a prima facie case is established simply by a showing that an impairment prevents a claimant from performing his or her relevant previous work. Stark v. Weinberger, 497 F.2d 1092, 1097-98 (7th Cir.1974).

The invalidation of 20 C.F.R. § 416.920(c) is not as disruptive to the administrative procedures of the agency as first might be suspected. Since the sequential evaluation process was not intended to increase or decrease the allowance/denial ratio, but was meant to improve administrative efficiency, the effect of § 416.920(c) to deny benefits to those who make a preliminary showing of inability to perform past work is contrary to the Secretary’s own intentions. See Baeder, 592 F.Supp. at 1501. The function of the “severity step” also would be subsumed in steps four and five, under subsections (e) and (f). The vocational evaluation guides can operate as efficiently as the “severity step” in cases involving an impairment which is not severe. See Lofton v. Schweiker, 653 F.2d 215, 217-18, n. 1 (5th Cir.1981), cert. denied 454 U.S. 1089, 102 S.Ct. 651, 70 L.Ed.2d 626. The Secretary also will be able to make disability determinations on a more individualized basis, a result that the Act encourages. See 42 U.S.C. § 1382c(a)(3)(B). See also Heckler v. Campbell, 461 U.S. 458, 468, 103 S.Ct. 1952, 1958, 76 L.Ed.2d 66 (1983).

Even giving the “severity step” a narrow construction, the basic conflict between the regulatory and statutory language would remain. The plaintiff has shown a fatal inconsistency between the Act and the “severity step.” See McCoy v. Schweiker, 683 F.2d 1138, 1143-44 (8th Cir.1982) (en banc). The Secretary’s use of the “severity step” constitutes a substantive rewriting of the Act. The regulation cannot be reconciled with the statutory language and the existing burden of proof rules. Accordingly, the court finds 20 C.F.R. § 415.920(c), the “severity step,” to be invalid, as it impermissibly increases a claimant’s burden of establishing a prima facie case of disability-

ill.

An alternative ground for remand is the absence of support for the Secretary’s conclusion that the plaintiff does not suffer from a “severe” impairment, even under the “severity step.” In determining whether the Administrative Law Judge’s findings are supported by substantial evidence, the court must decide whether the record contains such relevant evidence as a reasonable person might accept as adequate to support the findings. See Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). It is not the function of the court on review to try the case de novo or to supplant the Administrative Law Judge’s findings with the court’s own assessment of the evidence. This court can only determine whether the Administrative Law Judge’s findings were supported by substantial evidence. See Cummins v. Schweiker, 670 F.2d 81, 83 (7th Cir.1982).

A.

The plaintiff is fifty-two years of age, and his formal education ended after the eighth grade. His employment history consists of bartending and trade work. (Tr. 96, 118.) He last worked in the summer of 1980. (Tr. 96-98.) Since that time, the plaintiff has lived, for the most part, in nursing homes, alcohol treatment centers, and a state mental health center. He has lived with his family for only a short period. (Tr. 199-202, 231-35, 263, 270, 276-290, 311-312.)

The record reveals that the plaintiff suffers from several impairments, including cardiovascular and respiratory problems. (Tr. 209, 235-39, 264). Records state that the plaintiff suffers from personality disorders. The diagnoses have ranged from jpassive-aggressive to inadequacy. (Tr. 248, 279.) The plaintiff also has suffered from differing levels of depression. (Tr. 238, 323.) The plaintiff's behavioral history has been that of hostility and abusiveness. (Tr. 203, 286, 330-36.) On several occasions, police officers were called to the plaintiff’s hospitals and nursing homes to restrain the plaintiff. (Tr. 260, 299, 334-35.) In November, 1983, the plaintiff was admitted to a state mental health center with a diagnosis of “explosive personality” and paranoia. (Tr. 322.) Throughout his hospitalization, the plaintiff continued to have problems controlling his aggressiveness. (Tr. 30-40.)

The plaintiff also has a history of alcoholism and has been admitted to several treatment programs. (Tr. 199-201, 312.) Physicians have diagnosed the plaintiff as a alcoholic. (Tr. 105, 209, 231.) Several incidents at the nursing homes were the result of the plaintiff’s alcohol consumption. (Tr. 259-62.)

B.

The record reveals that the plaintiff’s cardiovascular impairments alone significantly limit his ability to perform basic work activities. The ALJ found that no residual effects exist which would indicate any prior heart attacks. (Tr. 81.) A report from W.C. Piotrowski, M.D., an examining physician, however, revealed that the plaintiff suffers from heart disease with a possible infarct of undetermined age. (Tr. 264.) Indeed, an agency examiner reported abnormal electrocardiogram results on May 22, 1982. (Tr. 220.)

The AU also did not credit the plaintiff’s testimony regarding chest pains. (Tr. 82.) The plaintiff’s chest pains, however, have been found to be consistent with angina. (Tr. 49, 208, 266, 270.) Indeed, Dr. Radecki diagnosed the plaintiff as suffering from chronic obstructive pulmonary disease. (Tr. 230, 237.) The plaintiff also has worn a nitroglycerin patch for some time. (Tr. 77, 114, 329.)

The ALJ also considered the plaintiffs respiratory problems to be presumptively not severe. (Tr. 81-82.) Examining and treating physicians, however, have noted the plaintiff’s respiratory disorders. (Tr. 13, 236-40, 247.) Norma Mason, M.D., the plaintiff’s treating physician at the Adolf Meyer Mental Health Center, found that minimal exertions dramatically increased the plaintiff’s respirations and pulse. (Tr. 13.) Dr. Mason opined that employment would only exacerbate the plaintiff’s cardiovascular problems. (Tr. 13.) Dr. Radecki also noted that the plaintiff’s heart disease would prevent any gainful employment. (Tr. 240.) Accordingly, the court finds that the Secretary’s finding that the plaintiff’s cardiovascular disease would not hinder basic work activities is not supported by substantial evidence.

The ALJ also found the plaintiff’s testimony regarding his leg pains not to be credible. (Tr. 82.) Physicians, however, have noted intermittent claudication when the plaintiff walks even short distances. (Tr. 237, 266.) Paul Yardy, M.D., also diagnosed the plaintiff as suffering from degenerative joint disease. (Tr. 45.) His reports are consistent with the plaintiff’s complaints of pain while walking. (Tr.Ill.) Accordingly, the plaintiff’s subjective complaints of leg pain and immobility deserved greater consideration. See Szulyk v. Heckler, 575 F.Supp. 1266, 1268 (N.D.Ill.1984).

Finally, the plaintiff’s personality disorders also would significantly limit his ability to perform basic work activities. The plaintiff has a long history of bizarre and assaultive behavior. Examining physicians have noticed his belligerent, hostile attitude. (Tr. 203, 286, 330-34.) Indeed, the plaintiff struck and verbally abused other nursing home residents. (Tr. 129-31, 330-36.) These incidents often were a result of the plaintiff’s alcoholism, but also have been linked to a generally explosive personality. Dr. Mason noted that the plaintiff’s abusive nature would prevent him from working with others, particularly in responding to directions. (Tr. 9.) A vocational expert also testified before the ALJ that the plaintiff’s belligerent personality would hinder his work abilities. (Tr. 141-42.) Generally, the plaintiff is hostile to persons in positions of authority. (Tr. 9, 130-31.) These personality disorders appear to limit the plaintiff’s ability to perform basic work activities. See 20 C.F.R. § 416.921.

IV.

The plaintiff also claims that the Secretary’s use of 20 C.F.R. § 416.922 conflicted with the Act’s requirement that the combined effect of all impairments be considered. Section 416.922 provides that the Secretary “will consider the combined effects of unrelated impairments only if all are severe and expected to last twelve months.” (Emphasis added.) See also Social Security Rulings 82-55 and 82-56.

The statutory definition of disability 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 or she is unable to perform previous work or any other kind of substantial gainful work. 42 U.S.C. § 1382c(a)(3)(B) (emphasis added). The statute defines “impairment” as resulting from clinically diagnosed abnormalities. 42 U.S.C. § 1382c(a)(3)(C). The plain meaning of the statutory provision provides that evidence of abnormalities must be considered in combination to determine whether a condition meets the requisite level of severity, when considered with vocational factors, to satisfy the Act’s disability requirements. The provision in § 416.922 that unrelated impairments would be considered in combination only if each abnormality is severe is contrary to the plain meaning of the statute.

On March 4, 1985, the Social Security Administration promulgated interim regulations implementing the 1984 Social Security Benefits Reform Act requirement that the combined effects of impairments must be considered even when the impairments evaluated singly might be found not severe. 50 Fed.Reg. 8726 (March 4, 1985). Accordingly, 20 C.F.R. § 416.922 was amended to comply with the Reform Act. The Secretary claims that no requirement existed prior to the 1984 amendments that the Secretary was to have considered the combined effect of allegedly non-severe impairments and that the 1984 amendments cannot be given retroactive effect.

The courts have long recognized, however, that the Secretary must evaluate the effect of several concurrent impairments in the disability determination process. See e.g. Cutler v. Weinberger, 516 F.2d 1282, 1285 (2nd Cir.1975); Bittel v. Richardson, 441 F.2d 1193, 1195 (3rd Cir.1971). See also Bledsoe v. Richardson, 469 F.2d 1288, 1290-92 (7th Cir.1972) (physician’s evaluation of claimant’s impairments in combination valid). The Secretary may not fragmentize a claimant’s various impairments. See Johnson v. Hecker, 593 F.Supp. 375, 381 (N.D.Ill.1984); Michel v. Califano, 480 F.Supp. 195, 197 (M.D.La.1979). The Secretary must view a claimant as a whole in evaluating whether that person is capable of engaging in gainful activity. See Landess v. Weinberger, 490 F.2d 1187, 1190 (8th Cir.1974). Disability may result from a number of impairments, which alone may not be disabling, but which together may render a claimant unable to perform substantial gainful activity. See Ramirez v. Schweiker, 554 F.Supp. 1022, 1025 (S.D.N.Y.1983); Griggs v. Schweiker, 545 F.Supp. 475, 477 (S.D.W.Va.1982). Accordingly, the plaintiff’s impairments merited consideration in combination.

Alternatively, the Secretary claims that the AU actually considered the plaintiff’s impairments in combination. In his findings, the AU stated that the plaintiff “does not have any impairment or impairments which significantly limit his ability to perform basic work related function.” (Tr. 82, emphasis added.) The AU also made a listing of the plaintiff’s impairments. (Tr. 8.) In this list, however, the AU appears to have considered the effect of each separate impairment, e.g. alcohol addiction without evidence of significant end organ damage. In addition, the AU listed several impairments which are considered not to be disabling when considered separately under Social Security Ruling 82-55. (Tr. 81.) Accordingly, the court finds that the AU failed to consider the combined effects of the plaintiff’s impairments. The plain meaning of the statutory disability provisions requires consideration of the plaintiffs concurrent abnormalities, even if each impairment would be considered non-severe if standing alone.

The Secretary’s application of § 416.922 in this case failed to consider the plaintiff’s impairments in combination, and was inconsistent with the plain meaning of the statutory disability provisions and with judicial interpretation of the Act and Regulations. Accordingly, on remand, the Secretary must consider the plaintiff’s impairments in combination.

V.

In sum, the cause must be remanded for determination of the plaintiff’s entitlement to disability benefits without the application of 20 C.F.R. § 416.920(c). The “severity step” impermissibly increases the burden of establishing a prima facie case of disability by substituting “basic work activities” for “previous work.” Accordingly, § 416.920(e) is violative of 42 U.S.C. § 1382c(a)(3)(A-C).

The evidence in the administrative record requires a finding that the Secretary’s decision is not supported by substantial evidence, particularly since the AU based his conclusions solely upon medical factors. (Tr. 77.) On remand, the Secretary must consider the combined effects of the plaintiff’s impairments and the plaintiff’s vocational characteristics. The Secretary then must proceed to the next steps in the sequential evaluation process. See 20 C.F.R. § 416.920(d-f).

IT IS THEREFORE ORDERED that the final decision of the Secretary be, and hereby is, reversed and remanded to the Secretary for determination of the plaintiff’s entitlement to disability benefits without the application of the severity regulation, 20 C.F.R. § 416.920(c).

IT IS FURTHER ORDERED that the cause be, and hereby is, reversed as unsupported by substantial evidence.

IT IS FURTHER ORDERED that the cause be, and hereby is, remanded for the consideration of the combined effect of the plaintiff’s impairments.

      . The Seventh and Fifth Circuits have assumed the validity of the "severity step” without detailed examination. Wallschlaeger v. Schweiker, 705 F.2d 191 (7th Cir.1983); Lofton v. Schweiker, 653 F.2d 215 (5th Cir.1981) cert. denied 454 U.S. 1089, 102 S.Ct. 651, 70 L.Ed.2d 626. Other courts have noted the conflict between the "severity step” and the statutory definition of disability, but have declined to rule on the issue. Keith v. Heckler, 732 F.2d 1089 (2nd Cir.1984); Delgado v. Heckler, 722 F.2d 570 (9th Cir.1983); Chico v. Schweiker, 710 F.2d 947 (2nd Cir.1983). See also Goodermote v. Secretary of Health and Human Services, 690 F.2d 5 (1st Cir.1982) (claimant did not challenge validity of severity step). Indeed, several courts have upheld the validity of the severity step as consistent with the Act. Gist v. Secretary of Health and Human Services, 736 F.2d 352, 357 (6th Cir.1984); Moore v. Heckler, 575 F.Supp. 180, 182-83 (D.Me.1983). See also Hilton v. Schweiker, No. 81-1139, slip op. (10th Cir. February 26, 1982); Chapman v. Schweiker, No. 81-1025, slip op. (10th Cir. February 26, 1982).