Willeford v. Secretary of Health and Human Services, 86-6594

• Decision Date: 11 August 1987
• Docket Number: No. 86-6594,86-6594
• Citation: 824 F.2d 771
• Parties: , Unempl.Ins.Rep. CCH 17,505 Joan W. WILLEFORD, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 771

824 F.2d 771

18 Soc.Sec.Rep.Ser. 509, Unempl.Ins.Rep. CCH 17,505

Joan W. WILLEFORD, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 86-6594.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 3, 1987.

Decided Aug. 11, 1987.

Steven Whiteside, Santa Barbara, Cal., for plaintiff-appellant.

Michael R. Power, San Francisco, Cal., for defendant-appellee.

Before KENNEDY and PREGERSON, Circuit Judges, and McKIBBEN, District Judge. ^*

Appeal from the United States District Court for the Central District of California.

KENNEDY, Circuit Judge:

Joan Willeford appeals a denial of widow's disability benefits, challenging the standard used to evaluate her claim. We affirm.

Mrs. Willeford applied for disability benefits under sections 202(e) and 223(d) of the Social Security Act, 42 U.S.C. Secs. 402(e), 423(d). After administrative proceedings, the Secretary of Health and Human Services denied her application. On a magistrate's recommendation, the district court upheld the Secretary's decision. Mrs. Willeford now appeals.

The administrative law judge responsible for the case found that Mrs. Willeford suffered from a variety of ailments, including musculoligamentous lower back strain and chronic disc degeneration, duodenal ulcer disease, migraine headaches, lower extremity claudication, atherosclerosis, and thoracic outlet syndrome. Nevertheless, he denied the application because the clinical findings submitted were not the same as, or equal in severity to, the findings for any impairment in the Secretary's Listing of Impairments, 20 C.F.R. part 404, subpt. p, app.1 (1986).

Mrs. Willeford does not challenge the administrative law judge's view of the clinical findings. That is, she does not claim to possess an impairment the same as, or equal in severity to, any listed impairment. She does, however, question the administrative law judge's use of the listing. In her view, the regulations do not require her to relate her condition to a listed impairment, but permit her to show, without any reference to the listing, that her condition precludes gainful activity. Though her position is not without some merit, we think the regulations point in a different direction.

Under the regulations, a widow is considered disabled if her impairment or combination of impairments has "specific clinical findings that are the same as those for any impairment in the Listing of Impairments ... or are medically equivalent to those for any impairment shown there." 20 C.F.R. Sec. 404.1578(a)(1) (1986). The language of the regulation suggests that reference to the listing is required in widow's disability determinations.

The same is true of the language in the medical equivalency regulation. It provides that

[The Social Security Administration] will decide that your impairment[ ] is medically equivalent to a listed impairment ... if the medical findings are at least equal in severity and duration to the listed findings.... If your impairment is not listed, [the Social Security Administration] will consider the listed impairment most like your impairment to decide whether your impairment is medically equal. If you have more than one impairment, and none of them meets or equals a listed impairment [the Social Security Administration] will review the symptoms, signs, and laboratory findings about your impairments to determine whether the combination of your impairments is medically equal to any listed impairment.

20 C.F.R. Sec. 404.1526(a) (1986). It is difficult to deny that this language conceives of a process in which disability is determined through comparison with listed impairments. At least one circuit has so held. Dorton v. Heckler, 789 F.2d 363, 366-67 (6th Cir.1986) (per curiam).

Turning from the regulations to the underlying statute, we find little support for Mrs. Willeford's position. The Social Security Act provides that a surviving spouse will be found disabled only if 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). A wage earner, in contrast, will be found disabled if his 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 work...." 42 U.S.C. Sec. 423(d)(2)(A).

A surviving spouse must satisfy a stricter disability standard than a wage earner. Sprague v. Bowen, 812 F.2d 1226, 1229 (9th Cir.1987). The standard is stricter not only because it requires a survivor to prove he or she is incapable of any gainful activity, substantial or not, without reference to age, education, or work experience, but also because it requires him or her to prove disability under regulations prescribed by the Secretary, rather than under a criterion specified in the statute. To permit Mrs. Willeford to disregard the Secretary's regulations would run counter to the language of the statute and the distinctions it draws between surviving spouses and wage earners. No question is raised as to the constitutional validity of these distinctions. See Sims v. Harris, 607 F.2d 1253, 1254-55 (9th Cir.1979).

The legislative history reinforces the statute's language. In explaining the widow's disability provisions, the Senate report states that

the Secretary ... [will] by regulation...