Marcus v. Sullivan, 89-2717

• Decision Date: 21 February 1991
• Docket Number: No. 89-2717,89-2717
• Citation: 926 F.2d 604
• Parties: , Unempl.Ins.Rep. CCH 15908A Esther MARCUS, et al., Plaintiffs-Appellees, v. Louis V. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 604

926 F.2d 604

32 Soc.Sec.Rep.Ser. 494, Unempl.Ins.Rep. CCH 15908A

Esther MARCUS, et al., Plaintiffs-Appellees, v. Louis V. SULLIVAN, M.D., Secretary of Health and Human

Services, Defendant-Appellant.

No. 89-2717.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 19, 1990.

Decided Feb. 21, 1991.

Steven Coursey, John M. Bouman, Mary E. Kopko, Martha Tonn, David Yen, Legal Assistance Foundation of Chicago, Chicago, Ill., for plaintiffs-appellees.

Mary S. Rigdon, Nancy K. Needles, Asst. U.S. Attys., Civ. Div., Appellate Section, Chicago, Ill., John F. Cordes, Jr., Matthew M. Collette, Dept. of Justice, Civ. Div., Appellate Section, Washington, D.C., for defendant-appellant.

Before CUMMINGS, CUDAHY and COFFEY, Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiffs-appellees represent a class of widows, widowers and surviving divorced spouses ("spouses") who claim disability benefits under 42 U.S.C. Sec. 402 of Title II of the Social Security Act ("Act") and children who claim disability benefits under the Supplemental Security Income ("SSI") program of Title XVI of the Act. These claimants argued below that the Secretary of Health and Human Services ("Secretary") violates the Act by denying disability benefits without first assessing each claimant's individual functional capacities. "Functional capacity" is most succinctly defined as what one can do despite one's physical and mental limitations. On plaintiffs' motion for summary judgment, the district court invalidated the Secretary's practice of denying benefits to children and spouses solely upon a finding that his or her impairments do not meet the Secretary's listing of about 120 per se disabling impairments. The Supreme Court subsequently invalidated the Secretary's methodology with respect to children in Sullivan v. Zebley, 493 U.S. 521, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990), resolving the precise issue raised by child claimants in this case. Remaining for this Court to consider is the validity of the Secretary's practice with respect to spouses. Also, certain class composition issues which are relevant to both spouses and children in the suit are still at issue.

We affirm the district court's final judgment order in all respects.

I. The Regulatory Framework for Spouses' Benefits

Title II of the Social Security Act, 42 U.S.C. Sec. 401 et seq., provides social security insurance benefits to disabled wage earners and disabled widows, widowers and surviving divorced spouses. When Congress first made spouses eligible to receive benefits through 1967 Amendments to the Act, it set a stricter definition of "disability" for spouses than for wage earners. A wage earner can qualify for benefits by demonstrating that he or she (hereinafter "he" for simplicity) is unable to participate in "any substantial gainful work," 42 U.S.C. Sec. 423(d)(2)(A). A spouse must show that he cannot engage in "any gainful activity." 42 U.S.C. Sec. 423(d)(2)(B).

Because the test of disability is more restrictive for spouses, the process by which the Secretary evaluates spouses differs from that used to evaluate wage earners. Wage earners are put through a five-step sequential inquiry. 20 CFR Secs. 404.1520, 416.920 (1990). Step one eliminates those who are still in the workforce. 20 CFR Secs. 404.1520(b), 416.920(b). Step two disqualifies claimants who do not have a "severe" impairment. Secs. 404.1520(c), 416.920(c). In the third step, the impairments of the claimant are compared to a listing ("Listing") of about 120 medical conditions which the Secretary concedes are severe enough to prevent a person from engaging in any gainful activity. Secs. 404.1520(d), 416.920(d), 416.925(a). If the wage earner's impairments meet or equal a listed impairment, the wage earner is conclusively determined to be disabled. Secs. 404.1520(d), 416.920(d). If the wage earner fails to establish equivalence, however, the inquiry is not over. In step four, the Secretary considers whether the impairment prevents the claimant from performing work he has performed in the past. If the claimant can, he is disqualified. Secs. 404.1520(e), 416.920(e). Finally, in step five the Secretary asks whether the claimant is able to perform other work in the national economy in view of his age, education and work experience. The claimant is entitled to benefits only if he cannot perform other work. Secs. 404.1520(f), 416.920(f).

For spouses of wage earners, step three is the final step of the sequential analysis. Because the Listing correlates to the "any gainful activity" standard of disability set for spouses, a spouse must meet the Listing to qualify for benefits. The Senate report accompanying the bill extending benefits to spouses specified that "individuals whose impairments do not meet th[e] level of severity [represented by the Listing] may not in any case be found disabled." S.Rep. No. 90-744, 90th Cong. 49-50, 1st Sess. reprinted in 1967 U.S.Code Cong. & Admin.News 2834, 2883 [hereinafter Senate Report]. Congress envisioned that determinations of eligibility for spouses would be "made without regard to nonmedical factors such as age, education and work experience, which are considered in disabled worker cases" in steps four and five of the sequential analysis. Id.

The question presented is whether the methodology used by the Secretary at step three to determine if a spouse meets the Listing adequately gives effect to the Act's statutory mandate. The Act states that disabled spouses will be separated from non-disabled spouses by the following standard:

A widow, surviving divorced wife, widower, or surviving divorced husband shall not be determined to be under a disability * * * unless his or her physical or mental impairment or impairments are of a level of severity which under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity. 42 U.S.C. Sec. 423(d)(2)(B).

The statute clearly grants the Secretary the right to promulgate the contents of the Listing and thus to determine the level of severity which presumptively renders a spouse disabled. Put another way, the Secretary can set some objective level of impairment which can be "deemed" to preclude some average individual from any gainful activity. The parties agree on this point. Less clear is the extent of the Secretary's responsibility to determine the claimant's individual level of impairment before comparing that claimant's impairments with the Listing. The parties dispute the quality of the comparison needed to support any determination that the claimant is precluded from "any substantial activity."

The regulations and rulings promulgated by the Secretary to govern the comparison of an individual's impairments with the Listing take a restrictive view of the need to assess the individual's condition. The Secretary takes the medical findings presented by the claimant, his signs, symptoms and laboratory findings, and tries to match them to the medical findings of each of the impairments contained in the limited Listing. 20 CFR Sec. 404.1526(c). He only finds a claimant eligible for benefits if his impairment "has specific clinical findings that are the same as those for any impairment in the Listing * * * or are medically equivalent to those for any impairment shown there." 20 CFR Sec. 404.1578(a)(1) (emphasis supplied). "Medical equivalence" is defined narrowly:

An impairment "meets" a listed condition * * * only when it manifests the specific findings described in the set of medical criteria for that listed impairment * * *. The level of severity in any particular listing section is depicted by the given set of findings and not by the degree of severity of any single medical finding--no matter to what extent that finding may exceed the listed value.

Social Security Ruling 83-19 (emphasis in original).

As the district court observed, SSR 83-19 ¹ establishes a "pigeonholing" process in which only a claimant's medical findings are matched. Functional factors which might indicate the severity of the claimant's impairment or combination of impairments are not evaluated. A claimant with a listed impairment who manifests only some findings cannot qualify for benefits, even if impairment is severe as a result of one symptom, for example. "[I]ntensity of a symptom cannot be substituted, no matter how severe * * * to elevate impairment severity to equivalency." SSR 88-13. When a claimant's impairment is unlisted, his medical findings must meet all of the findings for the closest listed ailment in order to "meet" the listing. SSR 83-19. If the claimant has a combination of impairments none of which meet a listed impairment, the medical findings of the combined impairments are compared to the findings of the listed impairment most similar to the individual's most severe impairment. 20 CFR Sec. 404.1526(a). In either a case of single or combined impairments, a claimant cannot show medical equivalence by showing the overall functional impact of his unlisted impairment or combination of impairments. "The functional consequences of the impairments * * * irrespective of their nature or extent, cannot justify a determination of equivalence." SSR 83-19 (emphasis in original).

The Secretary concedes that his insistence on an equivalence of medical findings results in the denial of benefits to any spouse whose laboratory findings or symptoms would not disable the "typical" person, even if the individual claimant might in fact be disabled by his impairment. (Br. 25.) He argues that some level of "arbitrariness" is sanctioned by the language of Section 423(d)(2)(B).

The plaintiff class attacks the objective approach taken by the Secretary, feeling that the statute requires an individualized functional assessment of each claimant's impairments. Residual functional capacity ("RFC") is defined by the Secretary as a:

medical assessment of what an individual can do in a work...