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HUDSON v. SULLIVAN

May 31, 1989

MARIAN HUDSON, and All Persons Similarly Situated, Plaintiffs,
v.
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: ZIEGLER

 Marian Hudson filed a claim for disabled widow's benefits alleging that she is disabled due to cervical spondylosis, bursitis of the left shoulder, degenerative joint disease of the lower back and knees, hiatal hernia, anemia, migraine headaches, high blood pressure and recurrent urinary tract infections. The Secretary concluded that plaintiff was not disabled because her impairments did not meet or equal the requirements of a listed impairment and denied her benefits.

 Plaintiff is 63 years old and is the widow of a wage earner, who died fully insured on April 1, 1980. She has been receiving disabled worker's benefits "on her own earnings record" since February, 1975. R. at 256-59. On November 11, 1983, Dr. Lawrence Ellis, plaintiff's treating physician since October 22, 1975, reported the existence of anemia, cervical arthritis and spondylosis. R. at 367. Dr. Ellis opined that plaintiff's condition provided only a moderate limitation on bending, standing and lifting and a mild limitation on walking. R. at 369. On March 26, 1984, Dr. Ellis conducted a physical capacity evaluation of plaintiff and concluded that plaintiff could stand for two hours and sit for two hours in an eight hour day. R. at 371. No explanation for plaintiff's apparently deteriorating condition was provided.

 Dr. Michael Culbya examined plaintiff on August 26, 1983 and made a diagnosis of arthritis, frozen left shoulder, symptomatic hiatal hernia, cervical spondylosis and anemia. He noted a history of migraine headaches, essential hypertension (controlled) and urinary tract infections. R. at 349. According to Dr. Culbya, range of motion for all joints, with the exception of plaintiff's left shoulder, was normal. R. at 348. Dr. Culbya also reported that a carcinoma of the colon appeared to have been cured surgically and "no longer poses a problem." Id.

 Finally, Dr. John Yount examined plaintiff on February 21, 1985 and made a diagnosis of spondylosis of the cervical spine, bursitis of the left shoulder, trochanteric bursitis, degenerative joint disease of the lumbar spine and the knees, hiatal hernia and recurring cystitis and vitilgo. R. at 382. Dr. Yount concluded that plaintiff's "multiple joint problems cause her constant pain and disability and in my opinion preclude any type of full time work." R. at 384.

 The Administrative Law Judge (the ALJ) concluded that the medical evidence established the existence of cervical spondylosis and status post carcinoma of the rectum, but that it did not establish that any of plaintiff's impairments or combination of impairments meet or equal the requirements of a listed impairment. Thus, the ALJ determined that plaintiff "was not under a 'disability'". R. at 13. The Appeals Council denied plaintiff's request for review, and the decision of the ALJ became the final decision of the Secretary. R. at 3-4.

 On appeal, plaintiff raises the following issues: (1) whether the Secretary's failure to consider residual functional capacity and plaintiff's actual ability to work in determining plaintiff's disability violates the Social Security Act (the Act) and the Equal Protection Clause of the fifth amendment; (2) whether the Secretary's failure to consider the treating physician's opinions, plaintiff's complaints of pain and the combined effect of plaintiff's impairments in determining whether plaintiff can engage in any gainful activity violates Third Circuit case law; and (3) whether the Secretary's failure to define and explain why plaintiff's impairments do not equal the listed impairment violates the requirements of due process.

 Before we address the merits of plaintiff's claims, we will address the motion of plaintiff to vacate the order of this court denying her motion for class certification. Plaintiff purports to bring this action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure "on behalf of all widows denied Disability Benefits on the basis that his/her medical condition did not meet the exact requirements of the medical listing (20 C.F.R. 404.1560, 77, 78)." Third Amended Complaint at para. 18. We denied plaintiff's motion for class certification on the grounds that, (1) the innumberable medical facts and factual situations that would be presented by the class as defined by plaintiff render this action ill-suited for class treatment and (2) a class action is not necessary to achieve the result sought by plaintiff because the effect of the judgment will operate as a judgment with regard to the proposed class, if plaintiff is successful on the merits and on appeal.

 In her motion to vacate judgment, plaintiff asserts that she is not seeking individual determination of the class member's eligibility for widow's benefits; rather the class seeks a ruling that the Secretary's policy requiring a widow claimant to meet or equal the listings is inconsistent with the Act.

 Plaintiff's argument does not persuade us to alter our conclusion that class certification is inappropriate In Count II, plaintiff claims that the Secretary does not consider the treating physician's opinions, a claimant's complaints of pain and the combined effect of a claimant's impairments, even though the Act, regulations and Third Circuit case law all command the Secretary to consider these items. See 42 U.S.C § 423(d)(5)(B) and Gilliland v. Heckler, 786 F.2d 178 (3d Cir. 1986) (treating physician's opinions); 42 U.S.C. § 423(d)(5)(A), 20 C.F.R. § 404.1528 and Green v. Schweiker, 749 F.2d 1066 (3d Cir. 1984) (claimant's pain); 42 U.S.C. § 423(d)(2)(C), 20 C.F.R. §§ 404.1523-1526 and Smith v. Schweiker, 671 F.2d 789 (3d Cir. 1982) (consideration of effect of combined impairments). Plaintiff's specific allegations cannot be redressed in a class action suit, or even in an individual suit, in the manner in which plaintiff has sought to present them. The Secretary typically recites in his decision that he has considered the treating physician's opinion, a claimant's complaints of pain and the combined effect of a claimant's impairments, and in fact, in plaintiff's case, the Secretary did consider these items. R. at 10-13. In effect, plaintiff alleges that the Secretary disregards the Act, regulations and case law even though he recites that he has considered the appropriate items.

 Unfortunately for plaintiff, a court cannot determine whether the Secretary actually is disregarding the law when he states that he is following it. Generally, once the Secretary applies the correct legal framework, the only issue for a reviewing court to address is whether the Secretary's decision is supported by substantial evidence. See Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). If plaintiff believes that the Secretary did not consider the items which he said he considered, plaintiff's only recourse is to appeal the Secretary's decision to a district court alleging that the Secretary's decision is not supported by substantial evidence. Plaintiff's allegation can be handled only in this manner and can be handled only on an individual basis given the multitude of factual differences present in each case. This claim is not typical of the claims of the class, and therefore, class certification would be inappropriate.

 Moreover, plaintiff's allegations that the Secretary issues decisions that do not define or explain why a claimant's impairments do not equal the requirements of a listed impairment also cannot be addressed in a class action. The regulations and case law require the Secretary to make findings of fact and to give reasons for his decisions. 20 C.F.R. § 404.953; Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981). Further, unlike the last claim, plaintiff has raised an issue that can be answered directly; however, this issue cannot be answered with respect to the class as a whole. Whether the Secretary defines or explains why a claimant's impairments do not equal the requirements of a listed impairment can be answered only by examining each individual case. A class action resolution would not solve the problem that plaintiff contends exists in this case. Because plaintiff's claim by its nature would be different from the claims of other class members, we find that it is not typical of the claims of other class members. Thus, class certification is inappropriate, and we will deny the motion of plaintiff to vacate the order of this court.

 Addressing the merits of plaintiff's claims, we have already alluded to our response to the second and third issues set forth above. The record in the instant case establishes that the ALJ not only considered the treating physician's opinions, plaintiff's complaints of pain and the combined effect of plaintiff's impairments, but also adequately explained why plaintiff's impairments do not equal the requirements of a listed impairment.

 Plaintiff contends that her impairments meet the requirements of Listing 1.05 of the Listing of Impairments, Appendix 1, Subpart P, Regulations No. 4. This listing provides as follows:

 
C. Other Vertebrogenic disorders (e.g. herniated nucleus puplosus spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
 
1. Pain, muscle spasm, and significant limitation of motion in the spine; and
 
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory reflex loss.

 In concluding that plaintiff's impairments do not meet Listing 1.05, the ALJ noted that plaintiff suffers from muscle spasms, pain in her feet, shortness of breath and fatigue and summarized the physicians' reports, including the report of the treating physician. R. at 11-12. Nevertheless, the ALJ determined that there is no evidence of motor loss, sensory loss or significant limitation of range of motion of the spine. R. at 12. Further, the ALJ concluded that,

 
the medical evidence shows that the claimant's conditions are not attended by clinical findings that meet or equal in severity the requirements of the Listing of Impairments. . . . The combination of claimant's impairments were considered by physicians of the State Agency. They concluded that the combination of claimant's impairments did not meet or equal the level of severity described in the Listing of Impairments. Since claimant has failed to establish additional evidence which would cast doubt upon the determination of such equivalency the [ALJ] finds no cause to disregard such determination. Therefore, it is the finding of the [ALJ] that the claimant's impairments do not meet or equal in severity the Listing of Impairments.

 R. at 12-13.

 The record establishes that the ALJ considered Dr. Ellis' reports, plaintiff's complaints of pain and the combined effect of plaintiff's impairments. Consequently, we find plaintiff's contentions that the ALJ failed to consider these items to be without merit. We will not address the issue whether, in light of this evidence, the ALJ's decision to deny benefits is supported by substantial evidence because plaintiff has not raised this issue.

 As quoted above, the ALJ expressly stated the basis for his determination that plaintiff's impairments do not equal the requirements of a listed impairment. Plaintiff raises the issue concerning whether the ALJ's explanation ...


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