PRESESENTING DISABLED WIDOWS AND WIDOWERS

THELMA S. COHEN
BERTRAM L. POTTER

Potter & Cohen
3852 E. Colorado Blvd.
Pasadena, California 91107
(818) 795-0681

ROBERT S. RAINS

Professor of Law
Dickinson School of Law
150 S. College Street
Carlisle, Pennsylvania 17013
(717) 243-4611

Prepared for

National Organization of Social Security Claimants' Representatives
Social Security Law: Expanding Your Horizons & Your Practice
October 24-26, 1990
Omni Hotel
San Diego, California

PROVING DISABILITY FOR
WIDOW(S)
AND SURVIVING DIVORCED SPOUSES

A distinct statutory scheme exists for disabled widows, widowers, and surviving divorced spouses. A qualifying widow(er) may receive benefits from Social Security on the account of the deceased spouse, with benefits computed on a sliding on the deceased's Primary Insurance Amount. To qualify the widow(er) must be between the ages of 50 and 60, and must have become disabled within seven years of the spouse's death or within seven years of receipt of last payments on deceased's account for mother's or father's benefits. 42 U.S.C. 402(e)(1)(4).

To qualify medically, the widow(er) must prove that"his or her physical or metal impairment or impairments are of a level of severity which under the regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity." [Emphasis added]. 42 U.8.C. 423(d)(2)(B) This statue has triggered a split in the Circuits as will be seen below. This is a stricter standard of proof than that required for wage-earners (i.e., inability to perform "substantial gainful activity"), and this distinction has been upheld on the grounds that the widow(er) is not applying on his/her own account. Sullivan v. Weinberger, 493 F.2d 855 (5th Cir. 1974). Sims v. Harris, 607 F.2d 1253 (9th Cir. 1979) upheld different treatment for primary and secondary beneficiaries.

The widow(er) must prove inability to do any gainful activity based only on physical and mental impairments. Age, education and prior work history are not considered. 20 Code of Federal Regulations section 404.1577. The Regulations further state that she or he will qualify if impairments meet or equal the Listings of Impairments. 20 Code of Federal Regulations Section 404.1578.

The Listings consist of defined medical criteria for different medical conditions, and are set out in Appendix 1 to Subpart P. Part 404 Title 20 of the Federal Regulations. 20 Code of Federal Regulations Section 404.1525. If the medical findings do not fit exactly within the criteria set out in the Listings, or if the condition is not a listed one, or the claimant has a combination of impairments none of which meet a listing, he or she will qualify if the impairments "equal" a listed impairment. In order to "equal", the medical findings must be equal in severity and duration to the findings for a listed impairment 20 Code of Federal Regulations Section 404.1526. The Secretary does not permit this "severity" to be established by reference to residual functional capacity: "[w]e will always base our decision on medical evidence only." 20 Code of Federal Regulations Section 404.1526 (b). As will be seen some Circuits disagree.

Although some Circuits require compliance with Regulations 20 Code of Federal Regulations Section 1577. 1578, which require a meeting or squalling of the listings (see attached), other Circuits have held the operative language is not "under the regulations" but simply inability to do "any gainful activity", and that the Regulations may not impose a more stringent standard than required by the language of Act. Reference is made to the case summaries provided by Professor Rains.

"Meeting" the Listings usually entails exclusively objective criteria, perhaps not always so, particularly as to the Mental Listings 12.00 and following. Meeting a Listing conclusively presumes that listed impairment renders the individual impaired to a degree that will "prevent any gainful activity." 20 Code of Federal Regulations Section 404.1525(a). Nevertheless, we are unaware of any case in which actually meeting a listing has been shown by functional proof rather than compliance with the technicalities of Appendix I.

The more challenging area for the practitioner is that of equalling the listings. The Ninth, First and Second Circuits have recently explicated an enlightened approach which is that in determining whether an impairment is severe enough to equal a Listing, functional capacity must be considered. Cassas v. Secretary, 893 F.2d 454, (1st Cir. 1990) Ruff vs. Secretary, (No. 89-35042, filed July 7, 1990, 9th Circuit), Kier v. Sullivan, 888 F.2d 244 (2nd Cir. 1989). See also, Robinson v. Sullivan, 733 F.Supp. 989 (E.D.Pa. 1990), where the District Court within the Third Circuit followed the precedents of the First and Second Circuits.

The Third Circuit has been ordered by the Supreme Court to consider head-on the validity of the Secretary's meeting or equalling standard in Finkelstein v. Bowen, 50 CCH S.Ct Bull. P.33571 (June 18, 1990). Cassas, et al., go on to hold that inability to perform any gainful activity constitutes an equalling. The Second and the Eighth Circuit do not go through the intermediatestep of requiring a meeting or equalling, however defined, but hold that inability to perform any gainful work in itself qualifies the claimant for benefits. See case list attached.

In Zebley v. Sullivan, a childhood Supplemental Security Income case, the Supreme Court invalidated the requirement that the child meet or equal a Listing. Prior to Zebley the Secretary set forth in Social Securitv Rulings 83-19 the criteria for determining equalling. After Zebley, 83-19 was withdrawn and has not been replaced; however, an interim standard was promulgated for childhood supplemental Security Income claimants, and that Interim Standard calls for a functional approach. For widow(er)s there is no Social Security Ruling. All that is left are the Regulations Sections 1526, 1577 and 1578 which merely require equalling by medical equivalency.

Notice that Code of Federal Regulations Section 404.1526 requires equalling to be established by "medical evidence only," which in effect prohibits consideration of residual functional capacity. The Secretary relied on Social Security Ruling 83-19 to spell it out and that has been withdrawn. As a matter of fact, the Courts for some time have been chipping away at the standards to make them less stringent. For example, the Ninth Circuit in Sprague vs. Bowen, 812 F.2d 1226 (9th Cir. 1987), held that in a widow's claims, lay witness testimony must be considered, and deference to the treating physician's opinion extends to his opinion on to meeting or equalling the listings.

Willeford vs. Secretary, 824 F.2d 771, 774 (9th Cir. 1987) cites Sprague and while confirming that a widow's claim must be determined with reference to the Listings, noted that, "There is merit to her suggestion that the ability to engage in gainful activity is the 'core' of the medical equivalence test. See Paris vs. Schweker, 674 F.2d 707, 710 (8th Cir. 1982). And it is distinctly possible that there will be cases where the absence of that ability is demonstrated in such a compelling fashion that the listing becomes a mechanical and unrealistic bar to a just determination."

Sullivan vs. Zebley, llo S.Ct. 885 (logo), abandoned the requirement of meeting or equalling for children and adopted a standard requiring individualized assessment of functional capacity. While meeting or equalling obviously terminates the sequential analysis of 20 Code of Federal Regulation Section 1520, Zebley presages an evolving functional capacity standard for widows and widowers as well. The real question is not whether Zebley will be applied to widows, but whether artificial requirements of meeting or equalling the Listings will be consigned to the trash heap.

In Cassas v. Secretary 893 F.2d 454 (1st Cir. 1990), in direct contravention to the clear language of 20 Code of Federal Regulations Section 404.1526, the Court held that although a widow(er) must still prove meeting or equalling, the residual functional capacity must be considered in determining equivalence. If residual functional capacity must be considered then meeting or equalling is no more than the third step of the sequential analysis of 20 Code of Federal Regulations Section 404.1520, and failure to meet or equal does not terminate the inquiry. While this appears to be in derogation of 20 Code of Federal Regulations Section 404.1526, it is congruent with the plain language of 42 U.S.C.

The language of the Courts may give lip service to meeting or equally, but equating inability to perform any work to equalling is a needless exercise in legalisms, exalting form over function and shadow over substance. More honest is the position of Second Circuit holding that inability to perform any gainful activity in itself satisfies the statutory requirement. Tolany v.Heckle 756 F.2d 268 (2nd Cir. 1985) Kier v. Sullivan, 888 F.2d 244 (2nd Cir. 1989).

The Ninth Circuit in Ruff v. Sullivan 90 Daily Journal D.A.R. 7723 7/9/90,follows Cassas, but does not abandon the meeting or equalling requirement. In practice that may be sound, but the exercise in sophistry might well be abandoned.

DATED: August 31, 1990

THELMA S. COHEN BERTRAM L. POTTER