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

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. §§ 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 *773 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.l (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…

dissenting.

I do not disagree with Judge Kennedy’s statements that “[tjhere is some merit to [appellant s] suggestion that the ability to engage in gainful activity is the ‘core’ of the medical equivalence test” and that “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.” Majority Opinion at 774.

I must dissent in this case because Mrs. Willeford has demonstrated in “a compelling fashion” that she is unable to engage in any gainful activity. Because demonstrating inability to engage in gainful activity is the core of the Department of Health and Human Services medical equivalence test, denying Mrs. Willeford widow’s benefits solely on the basis of that test creates “a mechanical and unrealistic bar to a just determination.”

Under the rationale adopted by the Eighth Circuit in Paris v. Schweiker, 674 F.2d 707, 710 (8th Cir.1982), and the Second Circuit in Tolany v. Heckler, 756 F.2d 268, 271 (2d Cir.1985), I would reverse the district court’s order and award Mrs. Wille-ford the widow’s benefit to which she is entitled.

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: 1 Joan Willeford appeals a denial of widow's disability benefits, challenging the standard used to evaluate her claim. We affirm. 2 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. 3 The administrative law judge responsible for the case found that Mrs. Willeford suffered from a variety of…