Ellen J. RUFF, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary, HHS, Defendant-Appellee

907 F.2d 915 30 Soc.Sec.Rep.Ser. 455, Unempl.Ins.Rep. CCH 15561A Ellen J. RUFF, Plaintiff-Appellant, v. Louis W. SULLIVAN, Secretary, HHS, Defendant-Appellee. No. 89-35042. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 9, 1990. Decided July 9, 1990. Avelin P. Tacon, III, Connolly, Holm, Tacon, McPhee and Meserve, Olympia, Washington, for plaintiff-appellant. Richard H. Wetmore, Asst. Regional Counsel, Dept. of Health and Human Services, Seattle, Washington, for defendant-appellee. Appeal from the United States District Court for the Western District of Washington (Tacoma). Before BROWNING, ALARCON and RYMER, Circuit Judges. ALARCON, Circuit Judge: 1 Ellen J. Ruff appeals from the denial by the Secretary of Health and Human Services (Secretary) of surviving spouse's benefits. She argues that the Secretary erred in failing to consider her residual functional capacity in determining whether her disability was equivalent to the impairments listed in the Secretary's regulations. Relying on dictum in Willeford v. Secretary of Health & Human Services, 824 F.2d 771, 774 (9th Cir.1987), she also argues that her "inability to engage in any gainful activity is…

Ellen J. Ruff appeals from the denial by the Secretary of Health and Human Services (Secretary) of surviving spouse’s benefits. She argues that the Secretary erred in failing to consider her residual functional capacity in determining whether her disability was equivalent to the impairments listed in the Secretary’s regulations. Relying on dictum in Willeford v. Secretary of Health & Human Services, 824 F.2d 771, 774 (9th Cir.1987), she also argues that her “inability to engage in any gainful activity is compelling to a degree that the listing becomes a mechanical and unrealistic bar to a just determination” of her claim. Appellant’s Brief, at 5. Mrs. Ruff also asserts that a denial of benefits would deprive her of equal protection.

We reverse because we conclude that the Secretary is required to consider residual functional capacity in determining whether a wage earner’s surviving spouse’s disability is medically equivalent to a listed impairment.

I

Mrs. Ruff began receiving disability insurance benefits in November 1979 after the Secretary concluded that she was unable to do past relevant work as a sorter and trimmer in the fruit packing industry due to severe degenerative…

dissenting:

I dissent because I believe Willeford v. Secretary of Health & Human Services, 824 F.2d 771 (9th Cir.1987), should be followed in this case. In Willeford , the widow argued that the regulations permitted her to show, without any reference to the listing, that her condition precludes gainful activity. However we held that the regulations, statutory scheme and legislative history point in the other direction, requiring a widow to relate her condition to a listed impairment, at least in default of a compelling demonstration of the absence of ability to engage in gainful activity.

Ruff has not shown in such a compelling fashion that the listing is a “mechanical and unrealistic bar to a just determination,” id. at 773 , nor is her condition comparable to the claimants’ condition in Tolany v. Heckler, 756 F.2d 268 (2d Cir.1985) (urinary stress, incontinence, and hypothyroidism, causing urination five to ten times per hour) or Paris v. Schweiker, 674 F.2d 707 (8th Cir.1982) (aggregate of impairments from Crohn’s disease, ulcerative colitis, hernia, gallstones, diabetes, and leg ulcers precluded any gainful activity), cited by Willeford as examples of that kind of case.…