Joan W. WILLEFORD, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
No. 86-6594.
United States Court of Appeals, Ninth Circuit.
August 11, 1987.
824 F.2d 771
Argued and Submitted June 3, 1987.
B. Exclusion of Expert Testimony.
Robotics asserts that the trial court abused its discretion in excluding proffered expert testimony as to reasonable finder‘s fees.
The district court found Robotics’ three witnesses unqualified after conducting extensive voir dire. During voir dire, one witness demonstrated that the majority of his experience with finder fees occurred after the Apple-Robotics contract was consummated and that he had paid a finder‘s fee only once prior to the Apple-Robotics contract. The second witness had virtually no experience with small computer companies like Robotics and lacked substantial personal knowledge of finder‘s fees. The third witness had knowledge of only one finder‘s fee payment. Thus, the record amply demonstrates that Robotics laid an insufficient foundation for these witnesses and that the trial court did not abuse its discretion in excluding them.
C. Bad Faith Termination.
Robotics’ final contention on appeal is that LuMetta was a finder rather than a broker, and thus cannot recover damages without establishing bad faith termination. However, there is substantial evidence LuMetta acted as a broker, rather than as a finder. He provided a test modem to Apple, arranged for its repair when trouble occurred, and generally remained in contact with Apple. See Tyrone v. Kelley, 9 Cal.3d 1, 9, 507 P.2d 65, 70, 106 Cal.Rptr. 761, 766 (1973) (finder distinguished from broker by the lack of any role beyond the introduction of the principals). Moreover, the fact that Robotics terminated LuMetta immediately before the $14.5 million dollar sale to Apple was consummated would allow a reasonable jury to infer the termination was made in bad faith. See Rose v. Hunter, 155 Cal.App.2d 319, 324-25, 317 P.2d 1027, 1031 (1957) (where negotiations have commenced and an agreement is near, a broker is entitled to the agreed-upon commission if he is terminated in bad faith before the agreement is consummated). Thus, LuMetta was entitled to damages.
AFFIRMED.
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.*
KENNEDY, Circuit Judge:
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
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
Under the regulations, a widow is considered disabled if her impairment or combination of impairments has “specific clinical findings that are the same as those for any impairment in the Listing of Impairments . . . or are medically equivalent to those for any impairment shown there.”
The same is true of the language in the medical equivalency regulation. It provides that
[The Social Security Administration] will decide that your impairment[] is medically equivalent to a listed impairment . . . if the medical findings are at least equal in severity and duration to the listed findings. . . . If your impairment is not listed, [the Social Security Administration] will consider the listed impairment most like your impairment to decide whether your impairment is medically equal. If you have more than one impairment, and none of them meets or equals a listed impairment [the Social Security Administration] will review the symptoms, signs, and laboratory findings about your impairments to determine whether the combination of your impairments is medically equal to any listed impairment.
Turning from the regulations to the underlying statute, we find little support for Mrs. Willeford‘s position. The Social Security Act provides that a surviving spouse will be found disabled only if his or her “physical or mental impairment or impairments are of a level of severity which under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity.”
A surviving spouse must satisfy a stricter disability standard than a wage earner. Sprague v. Bowen, 812 F.2d 1226, 1229 (9th Cir.1987). The standard is stricter not only because it requires a survivor to prove he or she is incapable of any gainful activity, substantial or not, without reference to age, education, or work experience, but also because it requires him or her to prove disability under regulations prescribed by the Secretary, rather than under a criterion specified in the statute. To permit Mrs. Willeford to disregard the Secretary‘s regulations would run counter to the language of the statute and the distinctions it draws between surviving spouses and wage earners. No question is raised as to the constitutional validity of these distinctions. See Sims v. Harris, 607 F.2d 1253, 1254-55 (9th Cir.1979).
The legislative history reinforces the statute‘s language. In explaining the widow‘s disability provisions, the Senate report states that
the Secretary . . . [will] by regulation establish the severity of impairment which may be deemed to preclude an individual
from engaging in any ‘substantial gainful activity.’1 An individual whose impairments meet the level of severity established by the Secretary would generally be found to be disabled . . .; and individuals whose impairments do not meet this level of severity may not in any case be found disabled.
S.Rep. No. 744, 90th Cong., 1st Sess. 49-50, reprinted in 1967 U.S.Code Cong. & Ad. News 2834, 2883. Thus it appears that the drafters of the statute, as well as the framers of the regulations, believed that a widow‘s disability would be determined by reference to the Listing of Impairments.
None of this indicates that Mrs. Willeford‘s position lacks substance. There is merit to her suggestion that the ability to engage in gainful activity is the “core” of the medical equivalence test. See Paris v. Schweiker, 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. Indeed, the cases on which she relies, Tolany v. Heckler, 756 F.2d 268 (2d Cir.1985) and Paris, supra, present situations of that sort.
The case before us is a different matter. The medical evidence is far more ambiguous, and might well support a denial of benefits under the standard for which Mrs. Willeford contends. Moreover, in the proceedings below Mrs. Willeford did not attempt to show that her impairments were the same as, or medically equivalent, to a listed impairment. She did not make any effort to comply with the analytic steps the regulations require. In such a case, we are reluctant to depart from the analysis outlined earlier. Accordingly, the district court‘s denial of widow‘s disability benefits is AFFIRMED.
PREGERSON, dissenting.
I do not disagree with Judge Kennedy‘s statements that “[t]here 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. Willeford the widow‘s benefit to which she is entitled.