# Petition for Writ of Certiorari — Sullivan v. Finkelstein

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 496 U.S. 617

## Text

‘at Supreme Court, U.S,
BS 04 TD
i SEP 21 1989
om
in the doupceme Court of the Ginited.etates- “7
as ‘i OcTosBer TERM, 1989

Louis W. SULLIVAN, SECRETARY
OF HEALTH AND HUMAN SERVICES, PETITIONER

v.

MARILYN FINKELSTEIN

it PETITION FOR A WRIT OF CERTIORARI
ee | TO THE UNITED STATES COURT OF APPEALS

4°. FOR THE THIRD CIRCUIT
,

oh.

ie | KENNETH W. STARR
, | Solicitor Genera:
ie STUART E. SCHIFFER

R i Acting Assistant Attorney General

sas ml THOMAS W. MERRILL

“Ry he Tia Deputy Solicitor General

TS a EDWIN S. KNEEDLER

, g’ Assistant to the Solicitor General

ee & ROBERT M. LOEB
Meir’ Attorney

aPC Deparimeni of Justice
Pog Al 8 Wi ton, D.C. 20530
aan (202) 633-2217

QUESTION PRESENTED

Whether, in an action under 42 U.S.C. 405(g) for
judicial review of the final decision of the Secretary of
Health and Human Services denying a claim for Social
Security disability benefits, the Secretary may appeal an
order of the district court that rejects the Secretary’s legal
basis for the denial of benefits and remands the cause to
the Secretary for a rehearing under a different legal stand-
ard.

(1)

TABLE OF CONTENTS

Page
EEE RE GL SSS c0ccccceccccccesss l
eaten cecdccccccccccsceccces 2
Statutory provisions involved ...................... 2
Statement ........... (PSN Saacsncceccrcsescccscess 4
Reasons for granting the petition ................... 10
EE LES EEE TEE 26
EG Eee hese cecssevisccccscecces la
eee cscs ecceccccceccscccess 3a
ee Cec au neecesseccesecccecss 19a
EEE Bees ce ecceesscccceccccss 2la
Nee ec ec cccccceescecccsss 25a
TABLE OF AUTHORITIES
Cases:

Avery v. Secretary of HHS, 762 F.2d 158 (1st Cir.
Eee eee kadeccscsccccccccces 18
Bachowski v. Usery, 545 F.2d 363 (3d Cir. 1976) .. 8,
10, 24

Baltimore Contractors, Inc. v. Bodinger, 348 U.S.
Eee a eka cccccccscccasces: 19
Beach v. Bowen, 788 F.2d 1399 (8th Cir. 1986) .... 22
Bender v. Clark, 744 F.2d 1424 (10th Cir. 1984)... 24, 25
Biddle v. Heckler, 721 F.2d 1321 (11th Cir. 1983) .. 25
Bohms v. Gardner, 391 F.2d 283 (8th Cir. 1967),

cert. denied, 390 U.S. 964 (1968) .............. 22
Bonner v. City of Prichard, 661 F.2d 1206 (lith

SSS EEE OE 24-25
Bowen v. City of New York, 476 U.S. 467 (1986) .. 7
Bowen v. Yuckert, 482 U.S. 137 (1987) .......... 6
Carson v. American Brands, Inc., 450 U.S. 79

EE SEITE 19
Catlin v. United States, 324 U.S. 229 (1945) ...... 12

(111)

IV
Cases — Continued: Page
Cohen v. Beneficial Industrial Loan Corp., 337

kG 5 Peer TT 12, 13, 21
Cohen v. Board of Trustees of University of Medi-

cine, 867 F.2d 1455 (3d Cir. 1989) ............. 19
Cohen v. Perales, 412 F.2d 44 (Sth Cir. 1969),

oe ee ER ee ee 19, 20,

21, 22, 23
Colon v. Secretary of HHS, 877 F.2d 148 (Ast Cir.

BED bss c cccdeedseonseeseeséusueanaienn 23
Coopers & Lybrand v. Livesay, 437 U.S. 463

GDUED vkVédetdewssennseccucciasesseeeennn 13, 16
Dalto v. Richardson, 434 F.2d 1018 (2d Cir. 1970),

cert. denied, 401 U.S. 979 (1971) .............. 22
Daviess County Hospital v. Bowen, 811 F.2d 338

CRB Ge, GHD 6 oe ccecasviccanesunesacanessas 16, 23
Edgewater Hospital, Inc. v. Bowen, 857 F.2d 1123

Cri Ge. GED Under the Social Security Act, a wage earner’s disability is de-
fined, in relevant part, as “inability to engage in any substantial gain-
ful activity by reason of any medically determinable physical or men.
tal impairment.” 42 U.S.C.A. § 42344) 1A) (West Supp. 1988). The
process for determining a wage earner’s disability includes inquiries in-
to whether the wage earner is engaged in substantial gainful activity,
has a severe impairment, and whether this impairment meets or equals
any in the regulatory listing. However, if a wage earner’s impairment
does not meet or equal any in the listing, the inquiry continues for the
purpose of determining whether his residual functional capacity
allows him to do past work and, finally, whether his residual func.
tional capacity, along with vocational factors like age, education, and
past work experience, allows him to do any other work. 20 CFR
§ 404.1520 (1987).

* The regulations expressly state that age, education, and past work
experience are ignored when evaluating a widow's disability 20
C.F.R. § 404.1577 (1987). On the merits, the issue is whether a widow

ta

impairment is not equivalent to one listed in the regula-
tions.

At the threshold, we are faced with the question of ap-
pellate jurisdiction. Both parties initially asserted’ that we
have jurisdiction under 28 U.S.C.A. § 1291 (West Supp.
1988). That section gives us the authority to review “final
orders” of the federal district courts. We have said that
“remands to administrative agencies are not ordinarily ap-
pealable under section 1291.” United Steelworkers of
America Local 1913 v. Union R.R., 648 F.2d 905, 909 (3d
Cir. 1981). Such a remand is typically an interlocutory step
in the adjudicative process and, therefore, not a final
order. Jd. Therefore, we can exercise appellate jurisdiction
over this case only if it comes within an exception to the
ordinary rule.

Case law does provide examples of a narrow exception

to the normal rule of non-appealability. Application of
this exception is limited to cases in which an important

whose impairment does not meet or equal any in the listing is entitled
to have her residual functicnal capacity considered. Because we lack
appellate jurisdiction over the district court's interlocutory order
remanding the case to the Secretary, we express no opinion on that
issue. We have held, however, that a stricter standard does apply in
widow's disability cases. See, e.g., Smith v. Schweiker, 671 F.2d 789,
790 (3d Cir. 1982) (“the test for establishing entitlement to disability
benefits is more stringent for widows”).

* At oral argument on September 8, 1988, we requested letter
memoranda on this question of appellate jurisdiction. By her letter
memorandum dated September 21, 1988, Mrs. Finkelstein now con-
tends that the district court's order is not appealable and that we lack
jurisdiction. The Secretary contends the district court's order is ap-
pealable. The parties’ positions on jurisdiction are, of course, not con-
trolling.

Sa

legal issue is finally resolved and review of that issue
would be foreclosed “as a practical matter” if an im-
mediate appeal were unavailable. See, e.g., AJA Assocs.
v. Army Corps of Eng’rs, 817 F.2d 1070, 1073 (3d Cir.
1987). Whether applying the normal rule or the exception,
our inquiry focuses on “the particular order brought to
this court.” Bachowski v. Usery, 545 F.2d 363, 372 (3d
Cir. 1976); see also United Steelworkers, 648 F.2d at 909
(“To assess these contentions, we must consider the nature
of the district court’s order.”).

After examining the circumstances of the cases applying
the normal rule of non-appealability and those holding
that appellate jurisdiction over particular remand orders is
available, we have concluded that the exception to the nor-
mal rule does not apply. Therefore, we lack appellate
jurisdiction.

A.

We turn first to cases in which we applied the normal
rule and held district court remand orders interlocutory
rather than final. In Marshall v. Celebrezze, 351 F.2d 467
(3d Cir. 1965) (per curiam), a Social Security disability
case, the Secretary asked the district court to remand so he
could take additional evidence. The district court granted
the motion and the applicant appealed. We dismissed the
appeal as interlocutory. See also Mayersky v. Celebrezze,
353 F.2d 89 (3d Cir. 1965) (district court remand to obtain
additional evidence in Social Security disability case not
final).

Our decision in Bachowski is particularly relevant.
Alleging violations of the Labor-Management Reporting
and Disclosure Act and other irregularities, Bachowski
sought to overturn the results of a union officer election.
The Secretary of Labor refused to file suit to set aside the

6a

election, but gave no reasons. Bachowski filed an action
against the Secretary, in district court, seeking an order
compelling him to file suit. The district court dismissed the
case for lack of subject matter jurisdiction. On appeal, we
held that the district court did have subject matter jurisdic-
tion and that the scope of judicial review extended to the
factual basis for the Secretary's decision not to file suit as
well as the factors on which he relied in reaching it.
Bachowski v. Brennan, 502 F.2d 79, 90 (3d Cir. 1974). On
certiorari, the Supreme Court agreed that the district court
had subject matter jurisdiction and that the Secretary was
required to provide “a statement of reasons supporting his
determination.” Dunlop v. Bachowski, 421 U.S. 560, 571
(1975). It held, however, that judicial review “should be
confined to examination of the ‘reasons’ statement, and
the determination whether the statement, without more,
evinces that the Secretary’s decision is so irrational as to
constitute the decision arbitrary and capricious.” Jd. at
572-73. On remand, the district court ordered the
Secretary to submit a supplemental reasons statement
after finding the initial statement inadequate. Bachowski
v. Brennan, 405 F. Supp. 1227, 1234 (W.D.Pa. 1975).
Upon examining the supplemental statement, the district
court held that the method the Secretary used to determine
whether the alleged violations affected the outcome of the
election and, therefore, whether to bring suit, was irra-
tional. It remanded for a recount with directions as to the
proper counting method. Bachowski v. Brennan, 413 F.
Supp. 147, 151 (W.D.Pa. 1976).

On appeal, we held this remand was interlocutory.
Bachowski, 543 F.2d at 372. Ultimately, the complaint
sought an order directing the Secretary to file suit. The
district court remanded only for further proceedings. We
distinguished “the ultimate substantive issue presented by
[the] appeals” from “the final question posed by Mr.

7a

Bachowski’s complaint.” Jd. at 372 n.58. “It is the answer
to the latter, not the former inquiry that constitutes a final
judgment under the traditional test of finality.” Jd. We
also said that the issue of the proper method for counting
votes might not escape later review. “By way of illustra-
tion, if the Secretary, after remand, would continue in his
refusal to bring suit, and the district court ordered him to
do so, the viability of the mode of review employed by [the
court] would be before us on review.” /d.

This case does not present circumstances analogous to
the cases in which we held there was appellate jurisdiction.
United Steelworkers is an example of such a case. We ex-
pressly based our holding on the peculiar circumstances of
the case. There, the district court's order set aside the deci-
sion of a public law board, directed that on remand one
member of the board be removed, and further directed the
board to remand the case to the railroad for a de novo in-
vestigative hearing into the termination of one of its
employees. United Steelworkers, 648 F.2d at 909. In
analyzing the order to decide if it was “final” and therefore
appealable for purposes of § 1291, we held that it had “the
practical effect of dismissing the present litigation”
because it “permanently disposed of all findings and
orders of the Board.” /d. at 909, 910. We also concluded
that, due to the very limited scope of judicial review over
board findings under the Railway Labor Act, the railroad
would probably not be able to appeal the Board's order
after a remand, thereby precluding any future opportunity
to challenge the district court’s order. /d. at 910.
Therefore, “because of the unusual circumstances of [the]
case,” we found the order final. /d. at 911.

8a

Horizons Int'l, Inc. v. Baldrige, 811 F.2d 154 (3d Cir.
1987), is another example illustrating the exception to the
normal rule of non-appealability. It involved the issuance
of a certificate of review*® by the Secretary of Commerce
for a proposed joint venture in the export sale of caustic
soda and chlorine. Horizons challenged the issuance of the
certificate and moved to limit discovery to the ad-
ministrative record. The government moved for summary
judgment. The district court remanded the case to the
Secretary and the Attorney General to consider five
specific questions “which raise genuine issues of material
fact concerning whether the grant of a certificate of review
.. . Was arbitrary, capricious, and an abuse of discretion.”
/d. at 158. The five questions necessarily involved material
outside of the administrative record. We held this order
was final on two grounds. As in United Steelworkers, it
acted both as a final disposition of the issues on appeal
and an effective preclusion of future review. We reasoned
that a remand would require further proceedings based on
evidence outside of the agency record, thereby mooting
the agency’s contention that the present record was ade-
quate to support its action. Jd. at 160. We distinguished
this order from an order postponing final disposition
where the plaintiff did not yet have a vested interest in ob-
taining the relief he sought. See e.g., Bachowski, 545 F.2d
at 363.

In AJA Associates, the Army Corps of Engineers
(Corps) had denied AJA’s application for a dredge-and-fill
permit in connection with property it owned in Florida.
AJA filed suit to set aside the denial and the Corps moved
for summary judgment. The district court held that AJA

* A certificate of review provides limited antitrust immunity and
must be approved by both the Secretary of Commerce and the At-
torney General. See Horizons International, 811 F.2d at 157.

9a

was entitled to appear at an “ ‘informal oral hearing
before a proper agency officer’ ” to respond to the Corps’
reasons for denying the permit. AJA Associates, 817 F.2d
at 1072 (quoting district court order). We said this order
was final because the district court's decision “opens up
for all applicants the argument, raised after permit denial,
that due process requires a hearing in their particular
cases.” Jd. at 1073. If the Corps conducted a hearing and
either denied or granted a permit, the right-to-hearing
issue would have been moot on appeal. /d. “[W)hen a
district court finally resolves an important legal issue in
reviewing an administrative agency action and denial of
appellate review before remand to the agency would
foreclose appellate review as a practical matter, the re-
mand order is immediately appealable.” /d.

Likewise, in United States v. Spears, 859 F.2d 284 (3d
Cir. 1988), we held that a district court order directing a
federal agency to comply with a Pennsylvania statute re-
quiring notice before foreclosure proceedings was final.
As in AJA Associates, the issue would have become moot
and escaped review whether or not, on remand, the agency
complied and gave the notice. Spears, 859 F.2d at 287.

The Secretary argues that he will be unable to raise the
issue of whether a widow's residual functional capacity is
relevant to her claim for widow's disability benefits later if
we do not exercise appellate jurisdiction over this par-
ticular remand order. We rejected the same argument by
the Secretary of Labor in Bachowski and by Conrail! in
Brotherhood of Maintenance of Way Employees v. Con-
solidated Rail Corp., 864 F.2d 283 (3d Cir. 1988). As in
Bachowski, “it is not inexorably so” that consideration of
this issue will escape review.

Bachowski is similar in its procedural posture to this
case. If the Secretary, after consideration of Mrs. Finkel-

10a

stein’s residual functional capacity on remand, persists in
refusing benefits and the district court orders that they be
granted, the issue of whether residual functional capacity
is relevant would be subject to our review. The possibility
that it would be unreviewable if the Secretary awards
benefits is no different than the possibility in Bachowski
that the district court's order directing certain vote count-
ing procedures would be unreviewable if the Secretary
decided to file suit to set aside the election after utilizing
those procedures. Review may become unavailable, but it
is not necessarily unavailable, as in AJA Associates.
Recently we held that a district court order remanding a
railroad employees’ discipline case to the National
Railroad Adjustment Board “to ‘hear evidence as to
whether [the employees] were sufficiently responsible for
the accidents in question to warrant their dismissal’ ” was
interlocutory. Brotherhood of Maintenance of Way
Employees, id. at 285 (quoting district court order).
Although Brotherhood is distinguishable on the ground
that the Adjustment Board, there the agency, was not a
party, we nevertheless relied on the general principle “that
district court orders remanding cases to administrative
agencies are not final and appealable.” Jd. at 285-286. We
did so despite expressing concern over the district court's
apparent interference with the arbitration board’s power.
Id. at 289. We distinguished United Steelworkers because
there the order “ ‘had the practical effect of dismissing the
present litigation and review of the legal questions raised
by this appeal will be foreclosed if not permitted now.” ”
Id. at 286 (quoting United Steelworkers, 648 F.2d at 909).
in discussing Bachowski, Judge Sloviter went on to say:
The Secretary and the union appealed the district
court's remand order to this court arguing, as Conrail
argues here, that if this court did not accept jurisdic-

tion the Secretary “may very well [be] deprive[d] . . .
of any opportunity to test the correctness of the scope
of review employed by [the district court].” /d. at 372.
We rejected this argument on the ground that the
mode of review used by the district court would be
reviewable if the district court later ordered the
Secretary to file suit, an issue that remained unde-
cided.
Id. Despite the fact that the agency was not a party,
Brotherhood points up how strongly the finality principle
of avoiding piecemeal review pulls in favor of permitting
even a decision interfering with other important policies to
stand.’

Here, too, the ultimate question of whether the district
court correctly ordered the Secretary to consider Mrs.
Finkelstein’s residual functional capacity would become
reviewable if the district court orders the Secretary to
grant benefits because she is so lacking in residual func-
tional capacity that she cannot engage in any gainful ac-
tivity. Although the Secretary may be denied review if he
orders benefits to be paid upon consideration of Mrs.
Finkelstein’s residual functional capacity, that possibility
is of no more significance than the possible unavailability
of review was to Conrail in Brotherhood of Maintenance
of Way Employees. Of course, if benefits are denied, Mrs.
Finkelstein may obtain review.

The principle of finality serves important inceetions!
functions. In serving them, issues which seem burning to
the litigants in the course of an individual dispute often
disappear, become subsumed in the final decision, and
escape review in a particular case. When they involve ques-

tions of general significance they are likely to recur in

’ We recognize the importance of the distinction between our case
of Bachowski on the one hand and Brotherhood on the other. We do
not therefore believe Brotherhood is controlling, but instead look to
Bachowski, which we believe does control.

12a

future cases in a posture which does present them for ap-
pellate review. Such is this case. It deals with an issue like-
ly to recur in future cases and arises in an administrative
procedure strongly analogous to common law adjudica-
tion of individual disputes.

The particular district order here at issue is in-
terlocutory, not final. The district court remanded Mrs.
Finkelstein’s case to the Secretary “for further pro-
ceedings.” It ordered the Secretary to consider her residual
functional capacity before deciding the question of
eligibility. This remand concerned the factors for con-
sideration in the adjudicatory process and not, as in AJA
Associates, supra, only the form that process must take.

Here, as in Bachowski, the district court remanded for
further consideration according to its guidelines. In
Bachowski, the guidelines related to the method of vote
counting; here, they relate to consideration of residual
functional capacity. Unlike the appellant in Horizons In-
ternational, Mrs. Finkelstein has no vested right in
anything; the court did not take away something. which she
had already been given, but postponed final disposition in
her case until the Secretary had considered an additional
factor. Unlike AJA Associates, the district court did not
order a hearing when the issue was whether the statute or
the regulations required a hearing; instead, it ordered con-
sideration of an additional factor before final administra-
tive adjudication of the benefit issue.

The institutional concerns precluding appellate review
of non-final orders prevail and deprive this Court of ap-
pellate jurisdiction over the district court’s order remand-
ing this case to the agency for consideration of residual
functional capacity. The district court’s order remanding
Mrs. Finkelstein’s case to the Secretary for consideration
of her residual functional capacity in determining her
eligibility for widow’s disability benefits is interlocutory,
not final. Accordingly, we will dismiss this appeal for lack
of appellate jurisdiction.

l3a

APPENDIX B

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CIVIL NO. 85-345 (GEB)
MARILYN FINKELSTEIN, PLAINTIFF
Vv.

Oris R. Bowen, M.D., SECRETARY OF HEALTH AND
HUMAN SERVICES, DEFENDANT

[Filed Feb. 18, 1988]
OPINION

Brown, District Judge

Plaintiff, Marilyn Finkelstein, seeks review under
§ 205(g) of the Social Security Act, as amended, 42 U.S.C.
§ 405(b), to review a final determination of the Secretary
of Health and Human Services (Secretary) which denied
plaintiff's application for widow’s disability insurance
benefits under sections 202(e) and 223 of the Social
Security Act, as amended.

Standard of Review

A decision of the Administrative Law Judge (ALJ)
concerning disability benefits must be upheld by the Court
if after review of the record, there is substantial evidence
supporting the decision. 42 U.S.C. § 405(g). Substantial
evidence has been defined as “more than a mere scintilla.
It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”

l4a

Richardson v. Perales, 402 U.S. 389, 409 (1971) (citations
omitted). This Court is to look at the record as a whole
and then determine whether or not there is substantial
evidence to support the decision. Taybron v. Harris, 667
F.2d 412, 413 (3d Cir. 1981) (quoting Hess v. Secretary of
Health, Education and Welfare, 497 F.2d 837, 841 (3d
Cir. 1974)).

Prior Proceedings

Plaintiff initially filed an application for widow’s in-
surance benefits on November 25, 1983. The application
was denied on February 3, 1983 and again upon recon-
sideration on March 28, 1984. On September 12, 1984, a
hearing was held before an Administrative Law Judge
(ALJ) to review plaintiff's application. The ALJ’s decision
of September 28, 1984 found the plaintiff to be not a
“disabled widow within the meaning of the Social Security
Act.” This decision became the final decision of the
Secretary when the Appeals Council denied plaintiff's re-
quest for review on December 11, 1984. The plaintiff then
filed a complaint in this Court appealing the ALJ’s deci-
sion.

Evidence Presented

Plaintiff was born on August 11, 1930. She is the widow
of a wage earner who died fully insured on August 27,
1980. Plaintiff's physician, Dr. Su, submitted his analysis
wherein he states that plaintiff suffers form [sic] frequent
chest pain and has a strong family history of coronary
heart disease. (Tr. 144-45). Also, he states that plaintiff
“has always had an abnormal cardiogram, namely, left
ventricular hypertrophy with ST depression of ischemia.
Examination revealed hoio systolic murmur at apex sug-
gestive of mitral regurgitation.” (/Jd.) The physician con-

1Sa

cludes that plaintiff suffers from “1) Arteriosclerotic cor-
onary heart disease with coronary insufficiency with recur-
rent angina, class III B. 2) Mitral valve prolapse syndrome
with frequent palpitations.” (/d.) In a letter dated June 27,
1984, Dr. Su also maintains that “[t}here is no doubt in my
mind that Mrs. Finkelstein is totally disabled physically
and also requires medical supervision regularly.” (Tr.
146-47).

Also before the ALJ were the interrogatories pro-
pounded by the ALJ on Dr. Arthur Bauman. Dr. Bauman
answered “no” to the following: “In your opinion, does the
claimant suffer from an illness or impairment which meets
the specific criteria in the Listing of Impairments.” In
response to the question of whether plaintiff suffers from
“an impairment or illness, or combination of impairments
or illnesses which is the equivalent of a listed impairment,”
Dr. Bauman states “possibly but hard data—stress test
+/or coronary arteriography absolutely vital. Her
treating physician recommended a stress test, but she has
thus far refused.” (Tr. 161-62).

Discussion

A widow may obtain disability benefits if she has a
physical or mental impairment that is “of a level of sever-
ity which under the regulations prescribed by the Secretary
is deemed to be sufficient to preclude an individual from
engaging in any gainful activity.” 42 U.S.C. § 423(d)(2)(B)
(emphasis supplied). “To qualify for widow’s disability in-
surance benefits, [plaintiff] must meet a more stringent
standard than that applicable to wage-earner claimants: ‘a
widow's disability must be sufficiently severe to preclude
an individual from engaging in any gainful activity,
whereas a wage earner’s disability need be sufficient to
preclude an individual from engaging in any substantial

16a

gainful activity.’ Gallagher v. Schweiker, 697 F.2d 82, 84
n.2 (2d Cir. 1983). Compare 42 U.S.C. § 423(d)(2)A)
with id. 423(d)(2)(B).” Tolany v. Heckler, 756 F.2d 268,
269-70 (2d Cir. 1985). “Disability will be found if a
widow’s impairments have specific clinical findings that
are ‘the same as those for any impairment’ on the listing of
impairments in Appendix | [20 C.F.R. Part 404, Subpart
P, appendix 1] or are ‘medically equivalent’ to those for
any listed impairment.” /d. at 271.

Plaintiff argues in her brief that, given the two expert
medical opinions of Dr. Su and Dr. Bauman, “the ALJ
who heard this matter erred in finding that plaintiff did
not suffer from an impairment or combination of im-
pairments which was the equivalent of a Listed impair-
ment. It is on this basis that plaintiff submits that the Final
Decision of the Secretary is without substantial evidence.”

This Court disagrees. As required by Brewster v.
Heckler, 786 F.2d 581, 585 (3d Cir. 1986), the ALJ made
clear on the record his reasons for rejecting the opinion of
the treating physician. The ALJ held that:

Dr. Su’s statement that the claimant’s heart condition
is “equal to Ischemic Heart Disease as stated in 4.04
of appendix one [sic]” is conclusory in nature and is
unsubstantiated by references to the specific medical
signs and findings required by regulation (20 C.F.R.
404.1527-1529). As noted in Social Security Ruling
83-19, an impairment may be judged to be equivalent
to a listed impairment only if the medical findings
(defined as a set of symptoms, signs, and laboratory
findings) are at least equivalent in severity to the set
of medical findings for a listed impairment. In no in-
stance will symptoms alone justify a finding of
equivalency. Consequently, Dr. Su’s statement, stand-
ing alone, does not establish equivalency. [Tr. 12].

17a

However, a review of the record under the standards
discussed supra however indicates that the case must be
remanded to the Secretary for reasons other than those
cited by plaintiff. The record is devoid of any findings
regarding the functional impact of plaintiff's ailment.

The ALJ found that the “medical findings shown in the
medical evidence of record establish the existence of mitral
valve prolapse” (Tr: 13); as such, plaintiff may not be able
to engage in any activity. As the Second Circuit recently
held,

The procedure for widows explains that disability wi//
be found if the claimant has a listed impairment or
the equivalent; it does not state that such an impair-
ment is the only basis for meeting the statutory stand-
ard. If a claimant has an impairment that is not listed
and is not the medical equivalent of a listed impair-
ment, but the claimant nevertheless is unable to
engage in any gainful activity, it is difficult to see how
that person may be denied benefits. It would seem
anomalous if an impairment that is only presumed to
be disabling because it is listed results in allowance of
benefits, yet an impairment that in fact leaves the
claimant without the residual functional capacity to
engage in any gainful activity is insufficient to war-
rant benefits.
Tolany v. Heckler, 756 F.2d 268, 271 (2d Cir. 1985) (first
emphasis in original, second emphasis supplied). See also
Carathers v. Bowen, No. 85 C-6560, June 17, 1987,
Northern District of Illinois (available on Lexis) (“If in
fact the ALJ finds that [plaintiff] cannot work, it follows
that the combination of her impairments must equal the
severity of a listed impairment and that she therefore
should receive benefits.”); Williams v. Bowen, 636 F.
Supp. 699, 702-03 (N.D. Ill. (1986) (In reviewing demial! of

benefits, Court held, inter alia, “plaintiff correctly argues
that the ALJ did not consider the functional impact of her
hearing loss, i.e., the medically verified limitations on her
ability to hear in a normal work environment. Such a con-
sideration is required for the regulatory scheme to have
real world meaning.”)

As the ALJ made no findings in this regard, the Court
remands for further proceedings. The Secretary is directed
to inquire whether plaintiff may or may not engage in any
gainful activity, as contemplated by the Act.

19a
APPENDIX C

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 88-5318
MARILYN FINKELSTEIN
Vv.

Ottis R. Bowen, M.D., SECRETARY OF HEALTH AND
HUMAN SERVICES, APPELLANT

(D.C. Civil No. 85-0345)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

[Entered Mar. 3, 1989]

JUDGMENT

Present: BECKER, HUTCHINSON and Scirica, Circuit
Judges

This cause came on to be heard on the record from the
United States District Court for the District of New Jersey
and was argued by counsel September 8, 1988.

On consideration of the within appeal from the
judgment of the said District Court entered February 19,
1988, it is now here ordered and adjudged by this Court
that the appeal is dismissed for lack of appellate

20a 2la

jurisdiction. Costs taxed against the appellant. All of the
above in accordance with the opinion of this Court.

APPENDIX D

UNITED STATES COURT OF APPEALS

ATTEST: FOR THE THIRD CIRCUIT

/s/ Sally Mrvos
Clerk

No. 88-5318

MARILYN FINKELSTEIN, APPELLEE
Certified as a true copy and issued in
lieu of a formal mandate on June |,
1989

Test: /s/ M. Elizabeth Ferguson

Chief Deputy Clerk, United States
Court of Appeals for the Third Circuit

v.

Otis R. Bowen, M.D., Secretary oF HEALTH AND
HUMAN SERVICES, APPELLANT

(D.C. Civil Action No. 85-0345)

[Filed May 24, 1989)
SUR PETITION FOR REHEARING

Present: Seitz, HiIGGINBOTHAM, SLOviTer, Becker,
STAPLETON, MANSMANN, GREENBERG, HUTCHINSON,
Scirica, COWEN and NYGAArp, Circuit Judges

The petition for rehearing filed by appellant in the
above captioned matter having been submitied to the
who participated in the decision of this court and to
circuit judges of the circuit in

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Judge Becker would grant in banc rehearing for the
reasons set forth in his attached Statement Sur Denial of
Rehearing In Banc.

Judge Sloviter would grant in banc rehearing and joins
in Judge Becker's attached Statement.

By the Court,

/s/ William D Hutchinson _
Circuit Judge
DATED: May 24, 1989

.
r

23a

STATEMENT SUR DENIAL OF REHEARING IN BANC
Becker, Circuit Judge.

I joined in the panel opinion, because | felt bound by
our decision in Bachowski v. Usery, 545 F.2d 363 (3d Cir.
1976), even though that opinion seems inconsistent at least
with the spirit of our later jurisprudence. See United States
v. Spears, 859 F.2d 284 (3d Cir. 1988); AJA Associates v.
Army Corps of Engineers, 817 F.2d 1070 (3d Cir. 1987);
Horizons International, Inc. v. Baldridge, 811 F.2d 154
(3d Cir. 1987). | would hear this case in benc and hold that
we have appellate jurisdiction, following the rule adopted
by the D.C. Circuit in the case of Occidental Petroleum
Corp. v. Securities and Exchange Commission, No.
87-5279, slip. op. at 2-11 (D.C. Cir. April 21, 1989) (D.
Ginsburg, J.).

In that case, Judge Ginsburg, speaking for the court, ex-
pressed the view that Congress did not intend that the final
order rule place an agency in a position of dependence
upon the self-interest of others in order to get review of a
legal decision that dictates the standards and procedures to
be applied by the agency in making its decisions. Here, as
in Occidental, the Secretary is between the proverbial rock
and a hard place. If the Secretary, bound by the district
court’s opinion, grants benefits on remand to Mrs.
he appeal. If the Secretary does not

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| believe that the D.C. Circuit rule is a sensible applica-
thon of our existing jurisprudence, which provides a nar-
row exception to the normal rule of non-appealability in
cases in which an important legal issue is finally resolved
and review of that issue would be foreclosed “as a practical
matter” if an immediate appeal were unavailable. See
AJA, 817 F.2d at 1073. Unfortunately, I read Bachowski
as foreclosing our applying that rule to this fact pattern,
hence my vote for rehearing.

Judge Sloviter and Judge Stapleton agree with this state-
ment.

25a
APPENDIX E

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARILYN FINKELSTEIN, PLAINTIFF
Vv.

Otis R. Bowen, M.D., SECRETARY OF HEALTH AND
HUMAN SERVICES, DEFENDANT

Civil No. 85-345 (GEB)

This matter having come before the Court on appeal of
plaintiff pursuant to 42 U.S.C. §§ 405(g) and the Court

~ having considered the record below and the submissions of

both parties and for good cause shown
It is on this 16th day of February, 1988
ORDERED that the matter be remanded to the

Secretary for further proceedings in accordance with this
Court’s opinion filed even date herewith.

/s/ Garrett E. Brown, Jr.
GARRETT E. Brown, Jr., U.S.D.J.

US GOVERNMENT PRINTING OFFICE 1969— 24) 699/0050'

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0677%3A2. Public record. Not legal advice.