Davidson v. Secretary of Health and Human Services, 88-1472

• Decision Date: 29 August 1990
• Docket Number: No. 88-1472,88-1472
• Citation: 912 F.2d 1246
• Parties: , Unempl.Ins.Rep. CCH 15666A Jeannette DAVIDSON, Plaintiff-Appellee, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1246

912 F.2d 1246

31 Soc.Sec.Rep.Ser. 70, Unempl.Ins.Rep. CCH 15666A

Jeannette DAVIDSON, Plaintiff-Appellee, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellant.

No. 88-1472.

United States Court of Appeals, Tenth Circuit.

Aug. 29, 1990.

Marguerite G. Lokey, Asst. Regional Counsel, Office of Gen. Counsel, U.S. Dept. of Health and Human Services, Dallas, Tex. (William L. Lutz, U.S. Atty., Gayla Fuller, Chief Counsel, Region VI, Karen J. Sharp, Principal Regional Counsel, Social Security Disability Litigation Branch, with her on the brief), for defendant-appellant.

Daniel M. Taubman, Colorado Coalition of Legal Services Programs, Denver, Colo. (Gary J. Martone, Albuquerque, N.M., on the brief), for plaintiff-appellee.

Before BRORBY and EBEL, Circuit Judges, and JOHNSON, District Judge. ^*

PER CURIAM.

This appeal presents the issue of whether the regulations established by the Secretary for the federal Department of Health and Human Services (Secretary) to guide evaluation of claims for social security widow's disability benefits are invalid because they do not implement the unambiguous language of the statute that they purport to administer. ¹ The Secretary denied Mrs. Jeannette Davidson's claim for widow's disability benefits, and an administrative law judge concurred in that decision. The district court reversed and remanded to the Secretary, holding that the Secretary must consider Mrs. Davidson's residual functional capacity for any gainful activity without limiting its inquiry to whether her impairments fit within the "listings" of severe impairments set forth in the regulations. The Secretary appealed to this court. We affirm.

On April 30, 1984, Mrs. Davidson applied concurrently for both worker's disability benefits and widow's disability benefits. Mrs. Davidson's claim was denied by the Secretary on the grounds that, as to her worker's disability claim, she was able to return to her former work as a bookkeeper, and, as to her widow's disability claim, she did not meet the special, stricter disability requirements for the widow's disability program. R.Vol. II at 89. On Mrs. Davidson's application to the Secretary for reconsideration, this decision was affirmed. Id. at 95-97. Mrs. Davidson then requested and received a hearing before an administrative law judge (ALJ), held November 15, 1984. To support her applications, she submitted the opinion of her treating physician, describing her condition and concluding that she was "unable to work." Id. at 250. Her application was also supported by objective medical test findings of mild left pedal edema, diagnosed as probable left lower extremity ischemic neuropathy resolved, with diabetes mellitus. Id. at 18. In addition, at the ALJ hearing Mrs. Davidson testified that she could not sit for more than forty-five minutes, stand for more than thirty minutes, bend, squat, or lift more than eight pounds. Id. at 32-33, 36-37, 42-43. She related that she had constant pain in both legs and had to lie down two to four times each day for at least one-half hour each time. Id. at 31-33, 39-41. She stated that she had to get up from sleeping every hour or hour and a half most nights to relieve her leg cramps. Id. at 37.

In response to Mrs. Davidson's claim for widow's disability benefits, the Secretary countered that none of Mrs. Davidson's impairments, taken individually or in combination, met or were the equivalent of an impairment in the Listings of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1 (Part A) (hereafter referred to as the listings).

In his written order denying Mrs. Davidson's widow's disability benefits claim, issued January 10, 1985, the ALJ set forth a summary of all the evidence submitted by both Mrs. Davidson and the Secretary. He then made seven findings:

1. The claimant was born on February 12, 1926.

2. The claimant is the widow of the wage earner, who died fully insured on January 27, 1971, and the claimant is not married.

3. The period during which the claimant must establish that she was under a disability extended through June 30, 1984, but not thereafter.

4. The medical findings shown in the medical evidence of record establish the existence of residuals of vascular lower extremity bypass grafts due to severe atherosclerotic peripheral vascular disease, osteoporosis, and controlled diabetes mellitus with no significant end organ changes on or before June 30, 1984.

5. The medical evidence of record does not establish that on or before June 30, 1984, or in fact through the date of this decision, the claimant's impairments had specific clinical findings, which lasted or were expected to last for a period of at least 12 continuous months, which are the same as those for any impairment in the Listing of Impairments in Appendix 1 (20 CFR 404.1525).

6. The medical evidence of record does not establish that the claimant, on or before June 30, 1984, or in fact through the date of this decision, had any impairment or combination of impairments, which lasted or was expected to last for a period of at least 12 continuous months, which is medically equivalent to an impairment listed in Appendix 1 (20 CFR 404.1526).

7. The claimant was not under a "disability," as defined in the Social Security Act, on or before June 30, 1984, or in fact through the date of this decision (20 CFR 404.1578).

Id. at 18-19. He concluded that:

Based on the medical evidence of record, it is found that the claimant's impairments, residuals of vascular lower extremity bypass grafts due to severe atherosclerotic peripheral vascular disease osteoporosis, and controlled diabetes mellitus with no significant end organ changes, have not met or equalled any section or sections in the Listing of Impairments, Appendix 1, Subpart P, Social Security Regulations No. 4, for a continuous period of at least 12 months and that she therefore has not been "disabled," as defined in Sections 404.1577 and 404.1578 of the Social Security Act at any time through the date of this decision.

Id. at 18. On February 22, 1985, the appeals council declined Mrs. Davidson's request for review of the ALJ decision. Id. at 3. Mrs. Davidson appealed to the federal district court.

The district court reversed and remanded denial of Mrs. Davidson's worker's disability benefits claim because neither the Secretary nor the ALJ had sufficiently evaluated Mrs. Davidson's pain based on the record as a whole, as required by Luna v. Bowen, 834 F.2d 161 (10th Cir.1987), and Nieto v. Heckler, 750 F.2d 59 (10th Cir.1984). Davidson v. Secretary of Health & Human Servs., No. 85-0420-SC, slip op. at 5-6 (D.N.M. Jan. 25, 1988). The district court also reversed and remanded the Secretary's denial of Mrs. Davidson's widow's disability benefits claim, holding that the Secretary must consider Mrs. Davidson's residual functional capacity to perform any gainful activity. Id. at 10. The Secretary did not contest the district court decision concerning Mrs. Davidson's worker's disability benefits claim. However, the Secretary did appeal the district court's ruling concerning the standard for evaluation of a widow's disability benefits claim. Thus, we consider only Mrs. Davidson's widow's disability benefits claim.

The Social Security Act expressly grants the Secretary rulemaking power. Sullivan v. Zebley, --- U.S. ----, 110 S.Ct. 885, 890, 107 L.Ed.2d 967 (1990); see 42 U.S.C. Sec. 405(a)(1982). "[O]ur review [of the Secretary's regulations] is limited to determining whether the regulations promulgated exceeded the Secretary's statutory authority and whether they are arbitrary and capricious." Zebley, 110 S.Ct. at 890 (quoting Bowen v. Yuckert, 482 U.S. 137, 145, 107 S.Ct. 2287, 2293, 96 L.Ed.2d 119, 129 (1987), and Heckler v. Campbell, 461 U.S. 458, 466, 103 S.Ct. 1952, 1957, 76 L.Ed.2d 66, 74 (1983)). See also Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694, 703 (1984) ("If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.").

Widow's ² disability benefits are provided as part of Title II of the Social Security Act. 42 U.S.C. Sec. 402(e) (1982 & Supp. V 1987). In enacting the statute, the intent expressed by Congress was that the definition of "disability" applied to a widow's disability claim should be stricter than that applied to the claims of disabled wage earners. While the disability benefits program for wage earners requires that the claimant only show that he is unable to participate in "any substantial gainful work," id. Sec. 423(d)(2)(A) (emphasis added), the disabled widow's benefits provision requires that the claimant show that she cannot engage in "any gainful activity." Id. Sec. 423(d)(2)(B) (emphasis added). ³ This unambiguous language forms the nucleus of our analysis of the standard which the Secretary must use to determine whether a widow is sufficiently disabled to qualify for benefits.

A commentator has succinctly described the history of worker's disability insurance. Smith, Developments in Social Security Law, 21 Ind.L.Rev. 367 (1988) [hereinafter Developments ]. Drawing on this article, we note that when Congress first passed the Social Security Act (the Act) in 1935, it contained no disability insurance program. Id. at 367. In 1954, Congress passed a disability "age freeze" program, which allowed a wage-earner who was unable to work because of a disability to continue to be insured under the Act for up to one year. In this version of the statute, "disability" was defined in purely medical terms, without reference to vocational factors. Id. at 368. In 1956, Congress added a monthly benefit to the age freeze if the wage earner was fifty...