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Smith v. Schweiker

decided: March 5, 1982.



Before Hunter and Higginbotham, Circuit Judges, and Ackerman,*fn* District Judge.

Author: Hunter


1. Rose Mary Smith, a widow, applied for disability benefits pursuant to 42 U.S.C. § 402(e)(1)(B)(ii) (1976). The only issue concerning her entitlement to disability benefits is whether her medical condition constitutes a disability within the meaning of the Social Security Act, 42 U.S.C. §§ 423(d)(1)(A), (d) (2)(B) (1976) (the "Act"). The Secretary of the Department of Health and Human Services ("Secretary") found that it did not. His determination was affirmed by a United States Magistrate and by the district court.

2. The question on appeal is whether there exists in the record, taken as a whole, substantial evidence to support the Secretary's findings. For the reasons discussed below we conclude that there is not. We will vacate the judgment of the district court, therefore, and remand this case to the Secretary for further proceedings consistent with our opinion.

I. Applicable Law

3. Under section 423 of the Social Security Act the test for establishing entitlement to disability benefits is more stringent for widows, widowers and divorcees than for the other class of beneficiaries, wage earners.*fn1 To be "disabled" under the Act, a widow must be incapable of performing any gainful employment. 42 U.S.C. § 423(d)(2)(B) (emphasis added). Furthermore, her inability to work must be based solely upon medical considerations. 20 C.F.R. § 404.1577 (1981).*fn2 A wage earner, by comparison, need only show that his impairment prevents him from performing any substantial gainful activity, which can be established based upon such non-medical factors as age, education and work experience. 42 U.S.C. § 423(d)(2)(A) (1976) (emphasis added). See Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218 (1st Cir. 1981); Grimes v. Secretary of HEW, 433 F. Supp. 1063 (E.D.Pa.1977), aff'd without opinion, 577 F.2d 726 (3d Cir. 1978).

4. For a widow to prove that she is unable to perform any gainful activity, her impairment must be one of those set forth in the Listing of Impairments, 20 C.F.R., Subpart P, Appendix 1, or it must be the medical equivalent of a listed impairment. 20 C.F.R. § 404.1578(a)(1). See also 20 C.F.R. § 404.1525(a). Medical equivalence is determined by comparing the symptoms, signs and laboratory findings about the claimant's condition with the medical criteria of the listed impairments. 20 C.F.R. § 404.1526(a). If the claimant's impairment is not listed in the Appendix, medical equivalence is determined by comparing the claimant's impairment with the listed impairment most like it. Id. A claimant's impairments, each of which, treated individually, would not constitute a disability, may also be considered in combination to determine whether, taken together, they do constitute a disability. Id.

II. The Evidence Before the ALJ

5. The medical evidence Mrs. Smith introduced at the hearing before the ALJ established that during the past decade she has been beset by several painful, chronic illnesses. These illnesses include: degenerative disc disease of the cervical spine, degenerative arthritis, osteoarthritis of the lumbosacral spine, peptic ulcer disease, a comminuted fracture of the left humerus and osteoporosis.*fn3 Her arthritis and degenerative disc disease restrict movement in her neck and lower back. She underwent a laminectomy and surgical removal of a ruptured disc to treat these conditions, but she still experiences neck and back pain. Her arthritis continues to worsen; she has recently developed a spur on her right foot. Her doctor advises against surgery, because it would only have to be repeated at a later time.

6. Mrs. Smith underwent a surgical vagotomy and a pyloroplasty in 1978 to treat her peptic ulcer disease. Her ulcer, however, continues to cause her difficulty, preventing her from taking her arthritis and pain medication.

7. In 1979, Mrs. Smith broke her left arm in seven places and exacerbated her back condition when she fell through a garage roof. Her arm was in a cast for over four months. She continues to wear an arm brace at night.

8. According to her testimony at the hearing, Mrs. Smith's impairments are the source of continual pain and severely restrict her activity. She testified that the pain in her head, neck, back, hands and ankles prevents her from sleeping at night, or from washing or combing her hair. She is unable to sew or crochet. She can no longer do any gardening, cooking or housekeeping. Because her neck movement is restricted, her doctor has advised her not to drive.

9. Mrs. Smith's testimony was corroborated by her daughter, who lives with her. The disabling nature of Mrs. Smith's impairments was also attested to by her attending physicians, including her family physician, who was of the opinion that she was totally disabled.*fn4 However, a medical consultant, Dr. Gillis, who was appointed by the Secretary, was of the opinion that none of Mrs. Smith's illnesses taken alone constituted a disability as defined by the Listing of Impairments. As is permitted by ...

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