Petitioners Brief — Sullivan v. Zebley

Supreme Court brief1990

Ask Donna

What actually matters in this document.

Text

OCTOBER TERM, 1989

Louis W. SULLIVAN, SECRETARY OF HEALTH

AND HUMAN SERVICES, PETITIONER

BRIAN ZEBLEY, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE PETITIONER

KENNETH W. STARR

Solicitor General

Stuart E. SCHIFFER

Acting Assistant Attorney General

THOMAS W. MERRILL

Deputy Solicitor General

EpwWIN S. KNEEDLER

Assistant to the Solicitor General

JohN F. CorDESs

MATTHEW M. COLLETTE

Attorneys

Department of Justice

Washington, D.C. 20520

(202) 633-2217

nable physical or mental impairment of com-

parable severity” to one that would lead to a determina-

tion that an adult is disabled (42 U.S.C. 18820 (40 (3)

(1)

Jr., who

Love,

court, of [all

the future will be, en-

Joseph

district

(whether ini-

and

the

Secretary of Health and Human

are plaintiff Brian Zebley and

PARTIES TO THE PROCEEDING

lial

TABLE OF CONTENTS

Page

r ̃ ... ͤ RTE 1

Z a ee te

Statutory and regulatory provisions involved 2

Statement:

A. The statutory and regulatory schenmne 2

B. The proceedings in this case 2

Introduction and summary of argument 14

Argument:

tion of SSI child’s disability claims are fully con-

sistent with the statutory requirement that a child's

impairment be of “comparable severity” to an im-

pairment that would render an adult disabled 19

A. The Secretary has broad authority to issue leg-

islative regulations to implement the statutory

standards of disability 19

B. Congress has not addressed the question of what

regulatory method should be used in determin-

ing whether children suffer from an impairment

of “comparable severity” to one that would be

disabling for an adult 23

C. The child’s disability regulations are based on a

contemporaneous and longstanding interpreta-

tion of the statutory standard that is both rea-

sonable and fully consistent with the purposes

ge ee 35

1. The Secretary’s regulations reflect a long-

standing and contemporaneous construction

of the Act that has been consistently main-

tained for over fifteen ears 35

(u)

2. The Secretary’s methodology for adjudicat-

ing child’s disability cases is reasonable and

consistent with Congress’s purposes in ex-

tending SSI disability benefits to children 41

a 46

APPONdix. .................-0.20---c-eceneceneeeseees- la

TABLE OF AUTHORITIES

Cases:

Aluminum Co. of America v. Central Lincoln Peo-

_ple’s Utility District, 467 U.S. 380 (1984) 35

Atkins v. Rivera, 477 U.S. 154 (1986) 23, 24-25, 27, 41

Batterton v. Francis, 432 U.S. 416 (19777 22

Block v. Community Nutrition Institute, 467 U.S.

340 (1984) ...................-.- 29

Bowen v. City of New York, 476 U.S. 467 (1986) .. 5, 6, 7,

Bowen v. Galbreath, 108 S. Ct. 892 (1988) 2

Bowen v. Yuckert, 482 U.S. 137 (1987) passim

Burnside v. Bowen, 845 F.2d 587 (5th Cir. 1988) .. 18

CBS, Inc. v. FCC, 453 U.S. 367 (19817 30

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) 16, 21, 22, 33

DeJesus v. Perales, 770 F.2d 316 (2d Cir. 1985),

cert. denied, 478 U.S. 1007 (1986) 24

FEC v. Democratic Senatorial Campaign Comm.,

IIe 35

Heckler v. Campbell, 461 U.S. 458 (1983) 4, 19, 20-21, 23,

24, 44, 45

Heckler v. Day, 467 U.S. 104 (1984) 85

Heckler v. Kuehner, 469 U.S. 977 (198) 10

Heckler v. Lopez, 469 U.S. 1082 (1984) eel 10

Hinckley v. Secretary of HHS, 742 F.2d 19 (ist

— 11, 13, 17-18, 42

INS v. Cardozo-Fonseca, 480 U.S. 421 (1987) 22

Kuzmin v. Schweiker, 714 F.2d 1233 (3d Cir.

— ́⁵ 1m * 10

NLRB v. United Food & Commercial Workers

Union, Local 28, 108 S. Ct. 413 (19877 22

Cases—Continued : Page

North Haven Board of Education v. Bell, 456 U.S.

512 (1982) 80

Petreleoni v. Secretary of HHS, No. 87-2021 (10th

Cir. Oct. 26, 1988) 18

Powell v. Schweiker, 688 F.2d 1357 (Iith Cir.

1982) 11, 12, 18

Public Citizen v. Department of Justice, No. 88

429 (June 21, 19899 35

Schweiker v. Chilicky, 108 S. Ct. 2460 (1988) 34-35

Schweiker v. Gray Panthers, 458 U.S. 34 (1981). 2, 21

Schweiker v. Hogan, 457 U.S. 569 (1982) 2

Schweiker v. Wilson, 450 U.S. 221 (1981)............ 2,3

Udall v. Taliman, 380 U.S. 1 (1966) 35

United States v. Erika, Inc., 456 U.S. 201 (1982) 29

United States v. Fausto, 108 S. Ct. 668 (1988) 29

United States v. Morton, 467 U.S. 822 (1984) 23

United States v. Rutherford, 442 U.S. 544 (1979).. 17, 30

Weinberger v. Salfi, 422 U.S. 749 (1975) .............. 19

Wilkinson v. Bowen, 847 F.2d 660 (11th Cir.

1987) " 18

Williams v. Bowen, 859 F.2d 255 (2d Cir. 1988) 18

Young v. Community Nutrition Institute, 476 U. 8.

974 (1986) ...................... soon * 22

Statutes and regulations:

Social Security Act, 42 U.S.C. 301 et seq.:

Tit. II. 42 U.S.C. 401 et seg. (1982 & Supp. IV

— 2, 5, 36, 37

§ 205 (a), 42 U.S.C. 405 (a2 12, 21, 24, 36

§ 205 (8), 42 U.S.C. 405 (g) 9

9223 (d) (1) (A), 42 U.S.C. 423 (d) (1)

6 — 3

5228 (d) (2) (A), 42 U.S.C. 428 (d) (2)

—v— — 4. 28, 45

8223 (d) (5) (B), 42 U.S.C. 423 (d) (5)

(B) (Supp. IV 1986)... 27

8223 (f), 42 U.S.C. 423 (f) (Supp. IV

1 ——— 10

Tit. ITV, 42 U.S.C. 601 et seg. (1982 & Supp.

fe hE A BE. 2

Statutes and regulations Continued: Page

Tit. XVI, 42 U.S.C. 1881 et seg. (1982 4

Supp. IV 1986) . 2,5, 14

§1611(a), 42 U.S.C. 1882 (a) (1982 4 |

Supp. IV 1986) 3 |

§ 1612, 42 U.S.C. 1882 (1982 & Supp. .

„ AE ee 3

§ 1618, 42 U.S.C. 1382 (1982 & Supp.

IV 1986) .. 3

§ 1614(a) (3) (A), 42 U.S.C. 1382 (a) .

(8) (A) ...... passim, la

§ 1614(a) (8) (B), 42 U.S.C. 1382 (a)

900 ———— 2. 4, 6, 7, 16, 28, 29, la

§ 1614(a) (8) (C), 42 U.S.C. 1382 (a) (8)

61614 (a) (8) (F), 42 U.S.C. 1382c(a)

(8) (F) (Supp. IV 1986) 3, 13, 26, 27

§ 1631 (e) (8), 42 U.S.C. 1383 (e) (8 9

§ 1681(d)(1), 42 U.S.C. 1383 (d) (1)

(1982 & Supp. IV 1986) ......_.... 12, 21, 24, 36

§ 1902(a) (10), 42 U.S.C. 1896a(a) (10)

(1982 & Supp. IV 198 27

Social Security Amendments of 1972, Pub. L. No.

92-608, §§ 301-306, 86 Stat. 1465-1488 2

Social Security Disability Benefits Reform Act of

1984, Pub. L. No. 98-460, 98 Stat. 1794:

§ 2, 98 Stat. 1794 = 10

§ 4, 98 Stat. 1800 SEES a 8,18

§ 4(a) (1), 98 Stat. 1800 * 25-26

§ 4(b), 98 Stat. 18oh)on:) 25-26, 27

TCT 11,14

§9(b) (1), 98 Stat. 1805... 27

Unemployment Compensation Amendments of

1976, Pub. L. No. 94-566, §501(b), 90 Stat.

— 2, 21, 24, 32, 33, 34, la-2a

Pt. 404:

EE a ee Se ä m. ⁵ꝶgqßpßp̃ SO ermLUmU Cr . — * r / = . Se

VII

Regulations—Continued : Page

rr 2, 5

1 2, 5, 8, 14, 15, 16, 17, 38

Pt. B passim

1 ð a ee 5

Section 416.904 (1976) 000 38

Section 416.904 3 31

i 4,6

Section 416.920(b) 0 5

Section 416.920(¢) 000 5

Section 416.920 (dp )))) 5, 6

Section 416.920(e)..0 „%„% 6

Section 416.920 (f)) 6

ä 28

Section 416.924 ( a)h 7, 2a

Section 416.924 (b) (ij 5, 7-8, 2a

Section 416.924 (b) ( 8, 2a

Section 418.924 (b) („ 8, 2a

Sections 416.924-416.9 2e 2, 2a-5a

ä 5, Za-4a

Section 416.925 (a 5-6, 2a

Section 416.925 (b) ()))) 8, 2a

Section 416.925 (b) (2) 8, 3a

Section 416.925 (e)) 5-6, 3a

Ee 5, 6, 4a-5a

Section 416.926 (a) . . 28, 4a

. a 7

Section 416.945 (a)... 7

..... 6

r 6

Sections 416.962-416.969 t 6

Miscellaneous:

122 Cong. Rec. 27,858 (1976) 34

39 Fed. Reg. (1974) :

. 31

40 Fed. Reg. (1975) :

REE ET RY 31

1 r 31

41 Fed. Reg. 53,042 (1976)

42 Fed. Reg. (1977) :

9 EEE

pp. 14,707-14,708

p. 14,708

pp. 14,708 et Se.

50 Fed. Reg. 35,069 (1985)

H.R. Rep. No. 231, 92d Cong., Ist Sess. (1971) 29.30, 45

Appeals (1978) 20

Oversight of the Supplemental Security Income

Program: Hearings Before the Subcomm. on

Oversight of the House Comm. on Ways and

Means, 94th Cong., 2d Sess. (1976) * 32

S. Rep. No. 744, 90th Cong., Ist Sess. (1987) 26, 28

S. Rep. No. 1230, 92d Cong., 2d Sess. (1972) 3

S. Rep. No. 1265, 94th Cong., 2d Sess. (1976) 32, 33

Social Security Ruling (SSR) 18-19, West. Soc.

Sec. Rep. Serv. 90 (1988 Supp.) -................. 13

Staff of Senate Comm. on Finance, Report on Is-

sues Related to Social Security Act Disability

ings Before the Subcomm. on Public Assistance

of the House Comm. on Ways and Means, 94th

I ee 32

Webster's Third New International —

(1976) — — -_ 24

In the Supreme Court of the Anited States

OcTOBER TERM, 1989

No. 88-1377

Louts W. SULLIVAN, SECRETARY OF HEALTH

AND HUMAN SERVICES, PE TITIONER

BRIAN ZEBLEY, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-29a)

is reported at 855 F.2d 67. The memorandum and order

of the district court (Pet. App. 2la-24a) are reported at

JURISDICTION

The judgment of the court of appeals was entered on

August 10, 1988, and a pe“ ion for rehearing was de-

nied on October 18, 1988 et. App. 25a). On January

9, 1989, Justice Brennan extended the time within which

to file a petition for a writ of certiorari to and including

February 15, 1989. The petition was filed on that date

and was granted on May 15, 1989 (J.A. 260). The juris-

diction of this Court is invoked under 28 U.S.C. 12541

(1)

STATUTORY AND

REGULATORY PROVISIONS INVOLVED

Section 1614(a) (3) (A) and (B) of the Social Security

Act, 42 U.S.C. 1382e(a) (3) (A) and B; Section 501/b)

of the Unemployment Compensation Amendments of 1976,

Pub. L. No. 94-566, 90 Stat. 2685; and 20 C.F.R.

416.924-416.926, are reproduced at App., infra, la-5a.

Parts A and B of the Listing of Impairments in 20

C.F.R. Pt. 404, Subpt. P, Appendix 1, are reproduced at

J. A. 115-235.

STATEMENT

A. The Statutory and Regulatory Scheme

1. The Supplemental Security Inceme (SSI) program

established by Title XVI of the Social Secwrity Act, 42

U.S.C. 1381 et seg. (1982 & Supp. IV 1986), provides

for the payment of benefits to financially needy individ-

uals who are aged, blir 1, or disabled. Unlike Title II

of the Act, 42 U.S.C. 401 et seg. (1982 & Supp. IV 1986),

which is an insurance program, Title XVI furnishes

benefits without regard to insured status and is in the

nature of a welfare program. Bowen v. Galbreath, 108

S. Ct. 892, 893 (1988).

The SSI program was enacted in 1972 and went into

effect on January 1, 1974.' It replaced three of the four

categorical assistance programs that previously had been

funded under the Social Security Act, leaving in place

only the Aid to Families with Dependent Children pro-

gram under Title IV of the Act, 42 U.S.C. 601 et seq.

(1982 & Supp. IV 1986). Schweiker v. Gray Panthers,

453 U.S. 34, 37-39 K n.1 (1981); Schweiker v. Hogan,

457 U.S. 569, 581-582 (1982). The SSI program was

principally intended t lo assist those who cannot work

because of age, blindness, or disability,’ Fy ‘set([ting) a

1 Social Security Amendments ot 1972, Pub. L. No. 92-603, §§ 301-

306, 86 Stat. 1465-1485; Schweiker v. Wilson, 45% U.S. 221, 223

(1981).

Federal guaranteed minimum income level for aged,

blind, and disabled persons.’” Schweiker v. Wilson, 450

U.S. 221, 223 (1981), quoting S. Rep. No. 1230, 92d

Cong., 2d Sess. 4, 12 (1972).? However, it also provides

for the payment of benefits to children under age 18 who

are considered to be disabled. 42 U.S.C. 13820 (a) (3)

(A). This case concerns the standards utilized by the

Secretary of Health and Human Services to determine

whether a ehild is disabled for purposes of the SSI pro-

gram.

2. The Social Security Act provides that “{a]n in-

dividual shall be considered to be disabled” for purposes

of the SSI program if he is unable “to engage in any

substantial gainful activity by reasor of any medically

determinable physical or mental impairment which can

be expected to last for a continuous per. od of not

less than twelve months” (42 U.S.C. 1382 ( (3) (A)).*

This definition is identical to and was patterned after the

definition in 42 U.S.C. 423(d) (1) (A), which is used in

evaluating adult claimants under the Title II insurance

program. See Bowen v. Yuckert, 482 U.S. 137, 140

(1987); S. Rep. No. 1230, supra, at 384. Because this

voeationally oriented standard could not sensibly be ap-

plied to children (see pages 29-30, 36-37, infra), Con-

gress further provided in Section 1382 (4 (3 (A) that

To be eligible for SSI benefit«, an individual’s income and re-

sources must be below the levels specified in 42 U.S.C. 1882 (4)

(1982 & Supp. IV 1986). Schweiker v. Wilson, 450 U.S. at 223 n.2.

See also 42 U.S.C. 1382a (definition of and exclusions from income),

1582b (1982 & Supp. IV 1986) (exclusions from resources).

Section 4 of the Social Security Disability Benefite Reform Act

of 1984 (1984 Act), Pub. L. No. 98-460, 98 Stat. 1800, which be-

came effective on December 1, 1984, requires that the combined

effect of multivle impairments be considered througl.out the die-

ability determination process. See 42 U.S.C. 1882c(a) (3) (F)

(Supp. IV 1986); Bowen v. Yuckert, 482 U.S. 137, 150-151 (1987).

For convenience, however, we shall use the singular term “impair-

ment” in this brief.

an individual under the age of 18 shall be considered to

be disabled “if he suffers from any medically determin-

able physical or mental impairment of comparable sever-

ity” (emphasis added

The basic definition of disability in paragraph (A)

of 42 U.S.C. 1382c(a) (3) is supplemented by paragraph

(B), which provides that “an individual shall be deter-

mined to be under a disability only if his physical or

mental impairment or impairments are of such severity

that he is not only unable to do his previous work but

cannot, considering his age, education, and work experi-

ence, engage in any other kind of cubstantial gainful

work which exists in the national economy.” This provi-

sion, which also is drawn directly from the Title II pro-

gram (see 42 U.S.C. 423(d) (2) (Al was originally en-

acted in 1967 in order to further describe the circum-

stances under which benefits may be awarded to adult

claimants under Title II. Yuckert, 482 U.S. at 147-148.

From the outset of the SSI program, the Secretary has

interpreted the corresponding language in Section 1382c

(a)(3)(B) that provides for consideration of non-

medical factors—the claimant’s “age, education and work

experience —to be inapplicable to children, because the

statutory text contemplates that those factors will be

taken into account only where it is appropriate to assess

a claimant’s ability to work. See pages 36-39, infra.

3 In 1978, the Secretary formally established a five-step

sequential evaluation process for determining whether an

adult is disabled for purposes of *he SSI program. 20

C. F. R. 416.920; see Heckler v. © pbell, 461 U.S. 458,

460 (1983).* Although that process is not fully utilized

in reviewing claims for child’s disability benefits, an

understanding of its operation will serve to illuminate

the issues in this case.

The sequential evaluation process under Title XVI is essentially

the same as that under Title II. See 20 C. F. R. 404.1520; Yuckert,

482 U.S. at 140-142.

At step one of the sequential evaluation process, if an

adult claimant is found to be engaged in substantial

gainful activity, he is denied benefits. 20 C.F.R. 416.920

(b). At step two, the claimant likewise is denied bene-

fits if he fails to demonstrate that he has a “severe” im-

pairment—i.e., one that significantly limits his physical

or mental ability to do basic work activities. 20 C. F. R.

416.920 (e).“

If the claimant does have a “severe” impairment, the

decision-maker then must determine at step three whether

that impairment is included in the Listing of Impair-

ments in Appendix 1 to the regulations (Pt. 404; Subpt.

P) or is equal in severity to a listed impairment, 20

C. F. R. 416.920(d); see also 20 C. F. R. 416.925, 416.926.

If the impairment is listed, or is medically equivalent to

a listed impairment, then it is “acknowledged by the

Secretary to be of sufficient severity to preclude gainful

employment.” Bowen v. City of New York, 476 U.S. 467,

470-471 (1986); see also Yuckert, 482 U.S. at 141.°

Part A of the Listing is applicable to adults aged 18 and

over, 20 C. F. R. 416.925(b)(1)). Part A is subdivided

into categories of impairments affecting each principal

body system, and it specifies in detail the medical “cri-

teria” for each impairment—.e., the medical signs, find-

ings, and symptoms and the requisite level of severity—

that, if met, are considered sufficient in themselves to

preclude gainful employment and therefore to result in

a finding of disability on medica! grounds alone. 20

5 The step two severity regulation was sustained by this Court

in Yuckert.

* We have reproduced the Listing at J.A. 115-235. The Listing

appears as Appendix 1 to 20 C.F.R. Part 404, Subpart P, which

governs disability determinations under the Title II program; it is

not duplicated in Part 416 of 20 C.F.R., which governs Title XVI.

The medical criteria in the adult portion of the Listing in Part A

of Appendix 1 are applicable to both Title II and Title XVI. The

additional medical criteria in the children’s section of the Listing

in Part B are applicable only to individuals under age 18.

C. F. R. 416.925(2) and (e. In addition, if the claim-

ant’s impairment is not included in the Listing, but the

signs, findings and symptoms associated with it are medi-

cally equivalent to a listed impairment, he will be con-

sidered to be disable on medical grounds alone. 20

C. F. R. 416.926. Accordingly, the regulations inform the

claimant that if his impairment either meets or equals

a listed impairment, “we will find you disabled without

considering your age, education, and work experience.”

20 C. F. R. 416.920(d).

If the adult claimant’s impairment does not meet or

equal a listed impairment, vocational considerations are

then taken into account (together with medical factors)

at steps four and five. See 20 C.F.R. 416.960. At step

four, the decision-maker must determine whether the

claimant is able to do his own relevant past work, de-

spite his impairment; if so, he is considered not to be

disabled. 20 C. F. R. 416.920(e), 416.961. But if the

claimant cannot do his past work, the decision-maker

then must determine at step five whether, considering

the claimant’s age, education and work experience, he can

do other work that exists in the national economy; if so,

he is considered not to be disabled. 20 C. F. R. 416.920 (f

416.962-416.969; see Yuckert, 482 U.S. at 141-142; City

of New York, 476 U.S. at 471. Thus, the non-medical

(or vocational“ factors of age, education and work ex-

perience—those specifically mentioned in 42 U.S.C. 1382c

(a) (3) (B)—are taken into account at step five only if

the decision-maker cannot determine at steps two and

three that an a cult claimant either is or is not disabled

based on medical evidence alone and cannot determine at

step four that the claimant is unable to perform his own

past relevant work. 20 C. F. R. 416.920, 416.960.

In order to determine at steps four and five whether

the claimant is able to do his own past work or other

work in the national economy, the regulations provide

for the decision-maker to assess the claimant’s “residual

functional capacity” (RFC). The RFC “is what [the

claimant] can still do despite [his] impairment” (20

C.F.R. 416.945) ; it “measures the claimant’s capacity to

engage in basic work activities.” City of New York,

476 U.S. at 471. Thus, the RFC assessment is an evalua-

tive device used to assist the decision-maker in making

the determination that is expressly provided for by 42

U.S.C. 1382c(a)(3)(B) in the case of adults: whether

abling, nevertheless is disabled because he is unable

perform his own past work (when the demands of that

job are together with his .

ed agp other work that exists in na-

tional economy (when his age, education and work expe-

rience are considered together with his RFC). 20 C

416.945 (a)."

4. As noted above, although the basic definition of dis-

ability in 42 U.S.C. 13820 fa (3 (A) provides that

adult claimant will be found disabled if he

engage in any substantial gainful activity

his impairment, a parenthetical clause at the end

paragraph (A) separately provides that an in li

under age 18 will be considered disabled if he suffers

from an impairment of “comparable severity.” To give

content to the standard of “comparable severity,” the

Secretary has promulgated regulations that provide for

the evaluation of children seeking SSI disability benefits

in a manner that is identical to that for adults in some

respects but different (although parallel) in others.

Like adult claimants, children seeking disability bene-

fits must not be engaged in substantial gainful activity

and must suffer from an impairment that is likely to last

at least twelve consecutive months. 20 C. F. R. 416.924(a)

Section 416.945(a) of the regulations informs the claimant

that this assessment of your remaining capacity for work is not

a decision on whether you are disabled, but is used as the basis for

determining the particular types of work you may be able to do

despite your impairment.”

and (b (1). In addition, a child will be found disabled if

his impairment meets o. equals one of the impairments

contained in the Part A Listing utilized for adults—if,

for the particular impairment in the Part A Listing,

“the disease processes have a similar effect on adults and

younger persons.” 20 C.F.R. 416.925 (b) (1); see 20

C. F. R. 416.9245 (2) and (3).

Vocational considerations, however, have little rele-

vance in the evaluation of individuals under age 18,

because children rarely have any significant history of

past employment and generally are not expected to engage

in substantial gainful activity. Consequently, under the

Secretary’s regulations, a child whose impairment does.

not meet or equal an impairment in the adult Part A

Listing is not then evaluated on the basis of his capacity

to perform prior work or other work in the national

economy (in light of his RFC, age, education, and work

experience). Instead, an individual under age 18 is

evaluated under a special Listing of Impairments in Part

B of Appendix 1 containing additional medicai criteria

that are deemed sufficiently severe in children to be dis-

abling. 20 C. F. R. 416.924(b) (2) and (3), 416.925

(b) (2).* The Secretary explained when he formally pub-

lished the Part B Listing in 1977 that the physicians and

other experts who assisted in developing it “placed pri-

mary emphasis on the effects of physical and mental im-

pairments in children, the impact of the impairment on

the child’s activities, and the restrictions on growth,

learning, and development imposed on the child by the

impairments.” 42 Fed. Reg. 14,705 (1977). “Those im-

pairments which were determined to impact on the child’s

The regulations explain that this additional Listing in Part B

is included because [certain criteria in Part A do not give ap-

propriate consideration to the particular effects of the disease

processes in children; i.e., when the disease process is generally

found only in children or when the disease process differs in its

effect on childhood than on adults.” 20 C. F. R. 416.925 (b) (2).

development to the same extent that the adult criteria

have on an adult’s ability to engage in substantial gain-

ful activity were deemed to be of ‘comparable severity’ to

the adult listing.” Ibid.

B. The proceedings in this case

1. This action was filed by respondent Brian Zebley in

the United States District Court for the Eastern District

of Pennsylvania on July 12, 1983 (Pet. App. 5a; J.A.

1, 16-25). Zebley had been granted child’s disability

benefits in September 1980, when he was two years old,

on the basis of congenital brain damage with spastic

right hemiparesis (a weakness affecting the muscles)

and mental retardation (J.A. 20-21, 28). After a

scheduled periodic review of his eligibility, Zebley

was found no longer to be disabled as of June 1982,

on the ground that the then-current medical evidence

demonstrated that his impairments no longer met

or equaled the criteria in the Listings of Impair-

ments. The ALJ agreed that Zebley was no longer dis-

abled (J.A. 40-47), and the Appeals Council denied

review (J. A. 38-39). In his individual action for

judicial review under 42 U.S.C. 405(g) and 1383(c) (3),

Zebley contended that the decision terminating his bene-

fits was not supported by substantial evidence (Pet. App.

5a-6a; see J. A. 23).

Zebley also sought to represent a class of applicants for

and recipients of child’s disability benefits. On behalf of

the class, he alleged that the Secretary’s policies and

regulations for evaluating child’s disability claims violate

42 U.S.C. 1382 (a (3) (A), because they do not provide

for ind idgalized consideration of pertinent facts such

as capavity to undertake basic activities, learning, growth.

development, academic attainment, school performance

and capacities and functional limitations imposed by

physical or mental impairments” (J. A. 22; see Pet. App.

6a). Zebley contended that such an assessment is re-

* * ———

quired for children because the Secretary considers both

medical and vocational factors in evaluating adults and

because 42 U.S.C. 1382c(a) (3) (A) provides that a child

shall be considered to be disabled if he suffers from an

impairment of “comparable severity” (J.A. 21-23).°

On January 10, 1984, the district court certified a

class consisting of “[{a]ll persons who are now, or who

in the future will be, entitled to an administrative de-

termination (whether initially, on reconsideration, or

on reopening) as to whether [SSI] benefits are payable

on account of a child who is disabled, or as to whether

such benefits have been improperly denied, or improp-

erly terminated, or should be resumed” (Pet. App. 6a;

J.A. 26-27). Thereafter, on October 12, 1984, the court

granted Zebley’s motion for partial summary judgment

on his individua] claim. It held that the Secretary’s de-

cision terminating Zebley’s benefits was not supported by

substantial evidence that his medical condition had im-

proved, as was then required in disability cessation cases

by the Third Circuit’s decision in Kuzmin v. Schweiker,

714 F.2d 1233, 1237 (1983). Pet. App. 6a; see J.A.

28-35."

With respect to the class claim, however, the district ~

court, in a decision dated July 16, 1986, granted the

Secretary’s motion for summary judgment (Pet. Anp.

In the fall of 1983, the district court granted motions to inter-

vene filed by Joseph Love, Jr., whose claim for SSI child's dis-

ability benefits had been denied (J.A. 48-58), and Evelyn Raushi,

whose SSI child’s disability benefits had been terminated (J.A. 59-

66). Pet. App. 6a.

10 Similarly, on March 13, 1985, the court granted the Secre-

tary’s uncontested motion to remand intervenor Raushi's claim tu

the Secretary for redetermination under the new statutory medi-

cal improvement” standard in Section 2 of the 1984 Act, 98 Stat.

1794, 42 U.S.C. 423(f) (Supp. IV 1986) (J.A. 36). Compare

Heckler v. Kuehner, 469 U.S. 977 (1984); Heckler v. Lopez, 469

U.S. 1082 (1984).

2la-24a). It rejected respondents’ contention that the

regulations are invalid on their face because “a child

claimant should have the same opportunity to prove in-

ability to function adequately in a child’s environment

as that which is provided the adult claimant under the

‘residual functional capacity’ rubric” (id. at 23a). Re-

lying on decisions of the First and Eleventh Circuits

rejecting “(s]trikingly similar challenges” (ibid., citing

Hinckley v. Secretary of HHS, 742 F.2d 19 (1st Cir.

1984), and Powell v. Schweiker, 688 F.2d 1357 (11th

Cir. 1982)), the court concluded that “the Secretary’s

listing[] of impairments * is not facially invalid or

incomplete, seems to provide the necessary flexibility, and

* * * permits the award of benefits in conformity with

the intent of Congress” (Pet. App. 23a, 24a). “If these

criteria are being misapplied or misinterpreted,” the

court noted, “the remedy lies in the appeal process in

individual cases, not in a class-action decree” (id. at

24a).™

2. The court of appeals reversed and remanded the

case to the distri¢t court with directions to enter sum-

mary judgment in favor of the plaintiff class (Pet. App.

11 After disposing of the class claim, the court, on April 23, 1987,

granted the stipulated motion by the Secretary and the remaining

named plaintiff, intervenor Love, to remand his claim to the Secre-

tary to be reevaluated under the revised criteria in the listing of

mental impairments that were issued by the Secretary pursuant to

Section 5(a) of the 1984 Act, 98 Stat. 1801 (J.A. 37). See 50 Fed.

Reg. 56,069 (1985); City of New York, 476 U.S. at 486 n.14. In

a decision dated July 29, 1988, the Appeals Council held, on the

basis of the ALJ’s extensive review of the evidence, that Love did

not have an impairment that met or equaled a listed ii, pairment

prior to November 15, 1985, but that he did have a mental impair-

ment (a personality disorder) that equaled the criteria in Section

12.08 of both the adult and child’s Listings after that date. On

December 15, 1988, Love filed a motion in the instant case to

remand his claim back to the Secretary for reevaluation of his

eligibility for the period prior to November 13, 1985, in light of

the Third Circuit’s holding in this case that the Secretary may not

rely solely on the Listings in child’s disability cases.

_ ill i i el i i! ie * le „* 2 — — —

la-20a). The court acknowledged that the SSI statute

grants the Secretary “ ‘full power and authority to make

rules and regulations and to establish procedures’” to

implement the SSI program, as long as they are “ ‘not

inconsistent' with the statute (id. at 9a, quoting

42 U.S.C. 405 (a); see 42 U.S.C. 1383 (d) (1) (1982

& Supp. IV 1986)); and it further acknowledged

that “Congress did not describe explicitly a method

for determining whether a claimant is disabled” (Pet.

App. 9a (emphasis in original)). Nevertheless, the

court invalidated the child’s disability regulations to the

extent they provide that a claimant is disabled only if

he has an impairment that meets or equals a listed im-

pairment and do not provide for an individualized assess-

ment of a claimant’s functional limitations in the same

manner that the Secretary makes an assessment of an

adult claimant’s RFC (id. at 9a-17a, 20a).

The court of appeals rested its conclusion principally

on the language in 42 U.S.C. 1882c(a) (3) (A) stating

that a claimant shall be considered disabled if he suffers

from “any” impairment that is of comparable severity.

See Pet. App. 7a, lla, 12a, 18a, 17a. In the court’s view,

because the regulations provide for “individualized assess-

ment of the actual degree of functional impairment of

adults whose medical findings do not entitle them to a

presumption of disability by meeting or equaling the list-

ings,” children “[must] be given the opportunity to show

that they suffer from ‘any’ impairment of ‘comparable

severity’ to one which would actually, even if not pre-

sumptively, disable an adult” (Pet. App. lla-12a (em-

phasis in original) ).

The court of appeals acknowledged that it was “in the

minority among courts which have considered the legality

of these regulations” (Pet. App. 16a), but it declined to

follow the decisions of other courts sustaining the

Secretary’s approach. The court specifically rejected the

Eleventh Circuit’s conclusion in Powell, 688 F.2d at 1360,

that the Listing of children’s impairments in Part B sat-

isfies the statutory “comparable severity” requirement

because the severity of some impairments is evaluated in

terms of a child’s ability to perform age-appropriate ac-

tivities, which is sufficiently “comparable to [considera-

tion of] vocational factors for adults” (Pet. App. 13a).

In its view, this parallel for some impairments did not

satisfy the statutory language that a child’s disability

may be based on “any” cep me hg — .

ity. The court also rejected the First Circuit’s conclusion

in Hinckley, 742 F.2d at 23, that the Secretary’s regula-

tions “allow[] for an assessment of a child’s mental or

physical limitations on an individual basis by providing

that a child may be found disabled if his impairment ‘is

determined by [the Secretary] to be medically equal to an

impairment listed in [the appendix].’” The court rec-

ognized that medical equivalence to a listed impairment

must be based on medical findings, that “it is functional

impairment which is meant to be evidenced by the med-

ical findings,” and that [ilt is only impaired ability to

function which results in disability” (Pet. App. 13a

(emphasis in original)). But, relying on a statement in

Social Security Ruling (SSR) 83-19 (see J.A. 236-243)

that RFC is not considered in determining medical equiv-

alence (J.A. 240), the court held that “something more is

necessary in order to determine whether the degree of a

claimant’s impairment satisfies the statutory standard

for disability” (Pet. App. 13a).

Although the court of appeals invalidated the child’s

disability regulations to the extent they require a claim-

ant’s impairment to meet or equal the Listing, it rejected

respondents’ contention that those regulations are in-

consistent with the requirement in Section 4 of the Social

Security Disabiliiy Benefits Reform Act of 1984 that

the Secretary consider the combined effect of several im-

pairments. See 42 U.S.C. 1882c(a)(3)(F) (Supp. IV

1986); Yuckert, 482 U.S. at 150-152. The court ex-

plained that the regulations incorporate the statutory

mandate “by providing expressly that multiple impair-

ments will be considered in assessing medical equivalence,

—_ 7 E ˙

20 C. F. R. § 416.926, and by providing generally that the

combined effect of all of a claimant’s impairments will be

considered throughout the disability determination proc-

ess. 20 C. F. R. § 416.923.” Pet. App. 18a."

INTRODUCTION AND SUMMARY OF ARGUMENT

The court of appeals in this nationwide class action

invalidated the regulations that have been utilized by the

Secretary of Health and Human Services for over fifteen

years to adjudicate claims for child’s disability benefits

under the Supplementa! Security Income (SSI) program

established by Title XVI of the Social Security Act, 42

U.S.C. 1381 et seg. Those regulations are designed to

give specific content to the statutory definition of “dis-

ability” as applied to individuals under age 18, which

provides that such an individual shall be considered to be

disabled if he suffers from an impairment that is of

“comparable severity” to an impairment that would

render an adult disabled. 42 U.S.C. 1382c(a) (3) (A).

To implement that most general of statutory standards,

the regulations at issue supplement the Listing of Impair-

ments that the Secretary has found to be sufficiently

severe for adults to preclude work activity (irrespective

of vocational factors) with a special Listing of Impair-

ments that applies only to individuals under age 18. This

special supplementary Listing takes into account the par-

12 The court of appeals also rejected respondents’ contention that

the Secretary did not fully comply with the requirements of Sec-

tion 5(a) of the 1984 Act (see note 11, supra), because he revised

the mental impairment criteria in the Part A Listing for adults

but not in the Part B Listing for children. The court noted that

there was no express reference in Section 5(a) to the Part B

mental impairment criteria for children and that the purpose of

the statutorily mandated revision, as set forth in Section 50a)

itself, was to assure that the “criteria and listings” “realistically

evaluate the ability of a mentally impaired individual to engage in

substantial gainful activity in a competitive workplace environ-

ment” (98 Stat. 1801)—a purpose that does not apply to children

(Pet. App. 18a-19a).

ticular effects of disease processes in children and is de-

signed to identify impairments that have an impact on

a child’s development that is comparable to the impact of

impairments that would prevent an adult from engaging

in substantial gainful activity.

This case involves a challenge to the facial validity of

the Secretary’s child disability regulations. Respondents

contend, and the court of appeals held, that the Secretary

may not rely on the Listing as the objective and uniform

measure of the level of medical severity that children’s

impairments must meet or equal in order for them to

be found disabled. Instead, they maintain, in every case

case-by-case assessment of each child’s residual abilities

and unspecified non-medical factors that would be analog-

ous to an adult claimant’s vocational factors of age, edu-

cation and work experience. This would occur despite

the fact that the Secretary has already determined that

the child does not have an —— — or a combination

of impairments that would affect the child’s development

in a manner comparable to the effect

on an adult’s ability to work.

Since the only question before the Court concerns the

facial validity of the Secretary’s regulatory methodology,

no question is presented concerning the adequacy of either

Part A or Part B of the Listing of Impairments or the

application of the Listing in particular cases. As the dis-

trict court observed, [if these criteria are being mis-

applied or misinterpreted, the remedy lies in the appeal

process in individual cases, not in a class-action decree”

(Pet. App. 24a). Nor is there any question before this

Court as to whether particular amendments to the Part

B Listing should be considered in the future (as they

have been in the past) to take account of any additional

impairments that may be shown by experience or medical

advances to have the requisite impact on development in

children. The sole question to be decided is whether, no

matter how exhaustive the Part A and Part B Listings

of Impairments and their medical equivalents might be,

the Secretary must nevertheless undertake an indivicual-

ized assessment of a child’s non-medical factors and re-

sidual funetional capacity in order to satisfy the “com-

parable severity” standard of the statute.

The initial inquiry in answering this question, as the

court of appeals recognized Pet. App. lla), is “whether

Congress has directly spoken on the precise question at

issue.” See Chevron U.S.A. Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 837 (1984). The court of

appeals concluded that Congress had in fact addressed

this precise issue: if the Secretary undertakes an indi-

vidualized assessment of vocational factors and residual

functional capacity in cases invalving adults, the court

reasoned, then che Secretary must also undertake such

an inquiry in cases involving children; otherwise, the

Secretary will not be awarding benefits to children in ali

cases involving impairments of “comparable severity.”

This superficial analysis, however, overlooks a number

of key features of the statutory language.

On the one hand, where Congress spoke of child's dis-

ability benefits—in the parenthetical clause at the end

of paragraph A of 42 U.S.C. 13820 (a (3)—it referred

only te impairments of comparable severity, not identical

severity. The use of the word “comparable” suggests a

fairly wide range of latitude. Congress in this brief

clause also spoke in terms of the degree of severity of the

physical or mental impairment itself, not in terms of

the regulatory method for ascertaining the existence of

euch an impairment. Thus, paragraph A cannot be

read as an express mandate that the Secretary follow

the same five-part sequential evaluation process with

children as with adults. On the other hand, paragraph

B of the statutory definition of disability, 42 U.S.C.

1382c(a) (3) (B)—which is the provision that mandates

a case-specific inquiry into non-medical factors and re-

sidual functional capacity with respect to adults—makes

no mentior of children ard includes no parenthetical

comparabili,, clause. This silence is significant, for if

Congress had directly spoken to the issue, the most logical

way to do so would be to include such a “comparability”

clause in paragraph (B) analogous to the parenthetical

clause that appears in paragraph (A).

It is also significant that the principle on which the

Secretary's regulations are based—that a child will be

found to be disabled only if his impairment meets or

equals a listed impairment, taking into account special

impacts of impairments on children—was embodied in

the regulations promulgated by the Secretary at the out-

set of the SSI program in January 1974. Congress was

apprised of this approa- in 1976, and yet it adopted

legislation directing the Se Stary to publish the criteria

for children that he had developed to implement that ap-

proach and that became Part B of the Listing of Impair-

ments. This Court has observed that where Congress

has been apprised of an agency's interpretation of a stat-

ute, and amends the statute in other respects, “then pre-

sumably the legislative intent has been correctly dis-

cerned.” United States v. Rutherford, 442 U.S. 544, 554

n.10 (1979). That presumption of correctness applies

a fortiori where, as here, Congress not only declines to

overturn the agency’s interpretation, but affirmatively

directs the agency to take action that implements its

interpretation.

Not only does the methodology embodied in the regula-

tions represent a contemporaneous construction of the

statute by the agency charged with implementing it, the

Secretary has also consistently adhered to that approach

in the adjudication of thousands of child’s disability

claims each year. Contemporaneous, longstanding and

consistently maintained regulations are entitled to great

deference. Indeed, other courts of appeals have sus-

tained the Secretary’s approach as a reasonable im-

plementation of the statutory standard. See Hinckley v.

Secretary of HHS, 742 F.2d 19 (Ist Cir. 1984); Powell

v. Schweiker, 688 F.2d 1357 (11th Cir. 1982); Wilkin-

son v. Bowen, 847 F.2d 660, 661 (11th Cir. 1987);

Petreleoni v. Secretary of HHS, No. 87-2021 (10th Cir.

Oct. 26, 1988) (unpublished); ef. Williams v. Bowen, 859

F.2d 255, 260 (2d Cir. 1988); Burnside v. Bowen, 845

F.2d 587, 590-591 (5th Cir. 1988)."" The court below

erred in holding that regulations so firmly grounded in

statutory text and congressional intent and in the long-

standing administration of the SSI program are wholly

beyond the Secretary’s authority.

Nor ean it credibly be maintained that the Secretary's

regulations are arbitrary and capricious. The criteria

in the special Part B Listing for children in fact do

take into account functional and developmental conse-

quences of impairments and their impact on ability to do

age-appropriate activities where those factors are ger-

mane to particular impairments. In other words, the

considerations that respondents would require the Sec-

retary to consider on an individualized basis were taken

into account in the formuletion of the Part B Listing in

the first place. As a result, the criteria in the Listing

already embody the level of impairment severity that, in

the Secretary's judgment, has an impact on development

in a child comparable to the impact of an impairment on

an adult's ability to work.

Moreover, if the decision-makers in the state agencies

and SSA were required to depart from the Listing for

children on an individualized basis, their inquiry in

thousands of cases annually would not be anchored in any

objective benchmark for determining when a child’s func-

tional impairment is sufficiently severe that he should be

The question of the regulations’ validity is also pending before

the Eighth Cireuit in Nash v. Bowen, No. 88-2542, in which oral

argument was held on May 9, 1989, and before the Ninth Circuit

in Burt v. Bowen, No. 88-5990, which has not yet been scheduled

for oral argument. There are district court cases going both ways

on the issue. Pet. App. 16a-17a nn.4, 5; Reply Br. 6 n.4.

considered disabled. For adults, the non-medical factors

of age, education and work experience, which are specified

in the Act itself, can be readily ascertained and quanti-

fied in each case, and the purpose of the inquiry—

determining the claimant’s ability to work—is objectively

anchored. But children do not generally work, and are

not ordinarily expected to work. Neither respondents nor

the court of appeals have offered any analogue to work

that could be applied to all children in an administra-

tively feasible manner; certainly, no special benchmark

for measuring the residual functional capacity of children

has been specified by Congress. The difficulties and po-

tential for disuniformity resulting from the uncharted

inquiry mandated by the court of appeals would impose

an unreasonable burden on the agency—a burden that

cannot be justified on the basis of the slender statutory

reed of the word “any” contained in Section 13820 % (3)

(A).

ARGUMENT

THE SECRETARY'S REGULATIONS GOVERNING

THE EVALUATION OF SSI CHILD'S DISABILITY

CLAIMS ARE FULLY CONSISTENT WITH THE

STATUTORY REQUIREMENT THAT A CHILD'S IM-

PAIRMENT BE OF “COMPARABLE SEVERITY” TO

AN IMPAIRMENT THAT WOULD RENDER AN

ADULT DISABLED

A. The Secretary Has Broad Authority to Issue Legisla-

tive Regulations to Implement the Statutory Stand-

ards of Disability

Like Heckler v. Campbell, 461 U.S. 458 (1983), and

Bowen v. Yuckert, 482 U.S. 137 (1987), this case in-

volves a facial challenge to regulations issued by the Sec-

retary of Health and Human Services to implement the

hasic statutory definition of “disability” under the Social

Security Act. Congress drafted the definition of disability

in very general terms, and entrusted the Secretary to

use his accumulated “experience and expertise” ein-

berger v. Salfi, 422 U.S. 749, 765 (1975)) to give it

particularized content. The regulations promulgated by

the Secretary to implement these general guidelines play

a critical role in the administration of what by all ac-

counts is a massive program. The Social Security Ad-

ministration (SSA) is “‘probably the largest adjudica-

tive agency in the western wor! .““ Together with

adjudicators in the state agencies, SSA must review more

‘han 2 million claims for various categories of disability

benefits annually under the Social Security Act. Yuckert,

482 U.S. at 153.“ In a program this vast and multi-

faceted, detailed implementing standards are essential to

ensure uniformity and fairness of administration.

In developing and revising these implementing regu-

lations, the Secretary relies upon his Department's ex-

tensive experience gained in administering the disability

and related social welfare programs. In particular, the

Secretary draws upon the advice of physicians and other

- experts, the insights gained by the state disability agen-

cies and his own ALJs and Appeals Council in their ad-

judication of thousands of claims raising similar issues,

and the intimate familiarity of his Department with the

constant evolution of the programs through a process of

legislative and administrative oversight and amendment.

The regulations at issue here are the considered product

of that elaborate process. See pages 36-39, infra.

As the Court has recognized in rejecting facial chal-

lenges to other provisions of the Secretary's disability

regulations. Congress has “conferred on the Secretary

exceptionally broad authority to prescribe standards for

applying certain sections of the Act.“ (Bowen v. Yuck-

ert, 482 U.S. at 145, quoting Heckler v. Campbell, 461

™ Heckler v. Campbell, 461 U.S. at 461 n.2, quoting J. Mashaw,

et. Social Security Hearings and Appeals at xi (1978).

" The SSI children's disability program is itself of substantial

proportions. We have been informed by SSA that as of March,

1989, there were 294,190 children receiving disability benefits under

the program, and that approximately 40,000-45,000 children become

newly eligible for child’s disability benefits each year.

U.S. at 466. aad Schweiker v. Gray Panthers, 453 U.S.

34, 43 (1981)). The Secretary’s authority in this case,

as in Yuckert and Campbell, derives in the first instance

from 42 U.S.C. 405(a), as made applicable to the SSI

program by 42 U.S.C. 1383(d)(1) (1982 & Supp. IV

1986). Section 405(a) provides that the Secretary “shall

have full power and authority to make rules and regula-

tions and to establish procedures, not inconsistent with

the provisions of [the Act], which are necessary or ap-

propriate to carry out such provisions,” and that he

“shall adopt reasonable and proper rules and regulations

to regulate and provide for the nature and extent of the

proofs and evidence and the method of taking and fur-

nishing the same in order to establish the right to bene-

fits hereunder.”

Congress made the delegation of authority to the See-

retary even more explicit with respect to the very sub-

ject at issue here when it enacted Section 501 b. of

the Unemployment Compensation Amendments of 1976

(1976 Act), Pub. L. No. 94-566, 90 Stat. 2685. Section

501(b) directed the Secretary, within 120 days after

enactment of the 1976 Act, to “publish criteria to be

employed to determine disability (as defined in 42 USC.

1382c(3) (A)! of the Social Security Act in the case

of persons who have not attained the age of 18” (90

Stat. 2685). The regulations challenged by respondents,

and invalidated by the court of appeals, were promulgated

pursuant to this express directive in 1977. See pages

32-33, 38, infra.

This Court has repeatedly stressed that such regula-

tions are subject to only a very narrow scope of review.

Where, as here, an agency’s regulations are challenged

on the ground that they are inconsistent with the statute

they implement, this Court's decision in Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467 US.

837 (1984). establishes a general two-part framework

for analysis. “First, always, is the question whether

Congress has directly spoken to the precise question at

issue.” Jd. at 842. This question must be answered by

“employing traditional tools of statutory construction”

(id, at 842 n.9), and, in particular, by examining “!t} he

words, structure, and history” of the statutory provi-

sion in question. NLRB v. United Food & Commercial

Workers Union, Local 23, 108 S. Ct. 413, 421 (1987);

see also INS v. Cardozo-Fonseca, 480 U.S. 421, 446-

_ 449 (1987); Young v. Community Nutrition Insti-

tute, 476 U.S. 974, 980-981 (1986). If, however, the

reviewing court determines that “Congress has not di-

rectly addressed the precise question at issue, the court

does not simply impose its own construction on the stat-

ute, as would be necessary in the absence of an admin-

istrative interpretation. Rather, if the statute is silent

or ambiguous with respect to the specific issue, the ques-

tion for the court is whether the agency's answer is

based on a permissible construction of the statute.” 467

U.S. at 843 (footnotes omitted

The deference to agency views reflected in this frame-

work applies with special force where, as in this case,

Congress has explicitly delegated authority to an admin-

istrative agency to implement a general statutory man-

date with specific regulatory standards. Indeed, when

Congress has delegated legislative authority to an agency,

step one of the Chevron inquiry is quickly answered:

Congress could not harbor a specific intention on the

precise question at issue and yet at the same time direct

an agency to develop an answer to that auestion. As this

Court has observed. in a situation of this kind, Con-

gress entrusts to the Secretary. rather than to the courts.

the primary responsibility for interpreting the statutory

term.” Batterton v. Francis, 42 U.S. 416, 425 (1977).

This Court has accordingly indicated that the standards

adopted by an agency pursuant to an express grant of

rulemaking power are entitled to “legislative effect.” and

they are given controlling weight ‘unless they are]

arbitrary, capricious, or manifestly contrary to the stat-

ute. Atkins v. Rivera, 477 U.S. 154, 162 1986 quot-

ing Chevron, 467 U.S. at 844.“

As we shall now show, neither the court of appeals

nor respondents have shown that the method adopted by

the Secretary for determining whether children suffer

from medical impairments of “comparable severity” to

those which are disabling for adults is manifestly con-

trary to the statute. Nor have they shown in any way

that the methodology embodied in the regulations at issue

here is arbitrary or capricious. To the contrary, the reg-

ulations are based on a reasonable, contemporaneous, and

longstanding interpretation and implementation of the

statutory standard of “comparable severity.”

B. Congress Has Not Addressed the Question of What

Regulatory Method Should Be Used in Determining

Whether Children Suffer from an Impairment of “Com-

parable Severity” to One That Would Be Considered

Disabling for an Adult

1. The general definition of disability set forth in the

Social Security Act provides that an otherwise eligible

adult is entitled to SSI disability benefits “if he is unable

to engage in any substantial gainful activity by reason

of any medically determinable physical or mental im-

pairment which can be expected to result in death or

which has lasted or can be expected to last for a continu-

ous period of not less than twelve months” (42 U.S.C.

1382c'a'(3)‘A)). Congress did not apply this same test

„ Accord Yuckert, 482 U.S. at 145, quoting Campbell, 461 U.S.

at 466 (“ “Where, as here, the statute expressly entrusts the Secre-

tary with the responsibility for implementing a provision by regula-

tion, [a court's] review is limited to determining whether the regu-

lations promulgated exceeded the Secretary's statutory authority

and whether they are arbitrary and capricious. : United States

v. Morton, 467 U.S. 822, 834 (1984) (“Because Congress explicitly

delegated authority to construe the statute by regulation, in this

case we must give the regulations legislative and hence controlling

weight unless they are arbitrary, capricious, or plainly contrary to

the statute.”").

to claimants under age 18, however, for the obvious

reason that most children, simply by reason of their

youth, are unable to engage in “any substantial gainful

activity.” Instead, Congress inserted at the end of the

general definition of disability in paragraph (A) the

following clause: “(or, in the case of a child under the

age of 18, if he suffers from any medically determinable

physical or mental impairment of comparable severity).”

Congress did not, however, define the critical term “com-

parable severity.” The Act therefore leaves it to the

Secretary to give content to that term pursuant to his

“exceptionally broad authority” under 42 U.S.C. 405%

and 1883(d) (1) (1982 & Supp. IV 1986) (see Yuckert,

482 U.S. at 145, quoting Campbell, 461 US. at 466), as

augmented by the specific directive to the Secretary in

Section 501(b) of the 1976 Act to “publish criteria to

be employed to determine disability * * iy the case

of persons who have not attained the age of 18.”

Several features of the statutory language support the

conclusion that Congress did not intend to require the

Secretary to follow the same methodology for determin-

ing disability in children as is used with adults. First,

Congress did not direct that the severity of impairments

for adults and children be identical, only that they be

“eomparable.” As the term is commonly used, “com-

parable” does not require complete similarity. Rather,

the term connotes circumstances “permitting or inviting

comparison l.] often in one or two salient points only”

(Webster's Third New Internationa: Dictionary 461

(1976)). Comparison “invites en examination of differ-

ences as well as resemblances.” DeJesus v. Perales, 770

F.2d 316. 324 (2d Cir. 1985), cert. denied, 478 U.S.

1007 (1986). And the concept of comparability does not

rigidly require uniformity insofar as the subjects to be

compared “are different in a fundamental way.” Atkins

v. Rivera, 477 US. at 164 n.8. Accordingly, the central

statutory term“ comparable severity”—is mast reason-

ably interpreted as contemplating that the Secretary will

take account of the differences as well as the similarities

in children and adults. The Secretary has done exactly

that, by following an essentially identical procedure for

adults and children, except for an individualized con-

sideration of non-medical factors and residual functional

capacity which the Secretary has determined cannot be

applied to children in a meaningful or administratively

feasible manner.

Second, although the text of paragraph (A) prescribes

a test for adults that focuses on the consequences of the

impairment, i. e., whether the claimant is unable to en-

gage in substantial gainful activity “by reason of” the

impairment, the parenthetical reference to children does

not expressly mention or even allude to consequences.

By its terms, the statute’s reference to children focuses

exclusively on the existence of a “medically determinable

physical or mental impairment” of the requisite degree

of severity (“comparable”), not on whether the child

personally retains the residual ability, despite the im-

pairment, to perform “substantial gainful activity” or

some other “activity” that is appropriate for children in

general or children of the claimant’s age in particular.

Third, the pivotal term “severity” has been used by

the Secretary and Congress under the Social Security dis-

ability programs to refer to a medically severe impair-

ment, the degree of which is based on medical evidence

alone. This Court recognized as much in Yuckert, where

it sustained the Secretary’s regulation requiring an adult

claimant to show at step two of the sequential evalua-

tion process that his impairment satisfies a threshold

level of “severity.” The majority in Yuckert srecifically

rejected the dissent’s proposal to “make the severity of

the claimant’s medica! impairment turn on nonmedical

factors such as education and experience” (482 U.S. at

149 n.7 ‘emphasis in original)). That usage is also

reflected in Section 4/a)‘1) and (b of the Social Secu-

rity Disability Benefits Reform Act of 1984, 98 Stat.

1800, which ratifies the severity regulation by referring

to the threshold test of whether the claimant’s impair-

ment is of sufficient “medical severity” (42 U.S.C.

1882c(a)(3)(F) (Supp. IV 1986) quoted in Yuckert,

482 U.S. at 150). See also 482 U.S. at 151-152 (dis-

cussing legislative history of 1984 Act referring to deter-

minations of severity based on medical evidence alone,

without consideration of age, education, and work ex-

porience . The Secretary’s regulations for determining

child’s disability define “comparable severity” in a sim-

ilar manner: they provide that the “severity” of a child's

impairment is to be based on medical factors and evi-

dence alone, without individualized consideration of voca-

tional or similar non-medical factors (or, therefore. of

the claimant’s RFC)." The regulations under challenge

are therefore supported by Congress’s use of the term

“severity” in 42 U.S.C. 1382e(a) (3) (F) (Supp. IV 1986)

and elsewhere in the Social Security Act.

Fourth. none of the language in paragraph A of

Section 13820 (a0 (3) suggests that because the Secretary

chooses to adopt a particular method for determining dis-

ability in adults based on a sequential evaluation process,

he must do so for children, and in the process incorporate

a consideration of factors akin to an adult’s age, educa-

tion, work experience and RFC. Specifically, Section

1382c(a)(3)(A) does not require the Secretary to use

the “same methodology” for both children and adults.

17 See also 482 U.S. at 148, quoting S. Rep. 744, 90th Cong., Ist

Sess. 48-49 (1967) (claimant is disabled “ ‘only if it is shown that

he has a severe medically determinable physical or mental impair-

ment or impairments’ ”).

1 Ot course, the determination of what kinds of physical or

mental impairments will be regarded as severe is based on the

impact of the impairment on development in children, just as the

regulation at issue in Yuckert measured the severity of an impair-

ment in terms of whether it substantially limits the claimart’s

ability to do basic work-related activities. See 482 U.S. at 141, 146.

Compare 42 U.S.C. 1396a(a)(10) (1982 & Supp. IV

1986), discussed in Atkins v. Rivera, 477 U.S. at 158.

It requires only that a child’s impairment be of “com-

parable severity” to that which would cause an adult to

be considered disabled.

Finally, the fact that the parenthetical reference to

„Mildren in 42 U.S.C. 13820 % (3/ (A speaks of “any”

physical or mental impairment does not detract from the

diseret ion conferred by the general term “comparable

severity.” The court of appeals seized on Congress’s use

of the word “any,” observing that “Congress has ex-

pressed unambiguously its intent that ‘any’ impairment

which meets the statutory standard shall be found dis-

abling“ Pet. App. lla). That is true; but it begs the

question at issue: What is the statutory standard ap-

plicable to children? Congress simply did not say. It

chose, rather, to leave the term, “comparable severity,”

undefined. Of course, within the regulatory framework

established by the Secretary, “any” impairment that

satisfies the prescribed standards—i.e., any impairment

that meets or equals an impairment in the adult Listing

or the special children’s Listing—renders a child eligible

for benefits. That result fully satisfies the statutory lan-

guage upon which the court of appeals relied.”

% Respondents argue (Br. in Opp. 20-22) that the Secretary's

regulations are inconsistent with Sections 4(b) and 9(b)(1) of the

Social Security Disability Benefits Reform Act of 1984, 42 U.S.C.

1382c(a)(3)(F) and 423(d)(5)(B) (Supp. IV 1986). The latter

requires the Secretary to consider all evidence in the claimant's

case record, and the former requires the Secretary to consider the

combined effect of several impairments at each step of the sequen-

tial evaluation process. See Yuckert, 482 U.S. at 149-152. Respond-

ents’ reliance on the 1984 Act is misplaced. Section 9b) (1 does

not modify any substantive standards of disability; it is concerned

only with the evidence on which a decision under those standards

must be made. As the court of appeals recognized (Pet. App. 17a-

18a), Section 4(b) likewise lends no support to respondents’ posi-

tion. Even before the 1984 Act was passed, Social Security Ruling

2. The conclusions drawn from consideration of the

language of paragraph (A) of 42 U.S.C. 13820 (3)—

that Congress left the method of determining comparable

severity to the Secretary and that the method chosen by

the Secretary is fully consistent with the statute—finds

further support in paragraph (B of that provision.

Paragraph B contemplates, in the case of an adult

claimant, that the Secretary will engage in an individ-

ualized inquiry into whether “his physical or mental im-

pairment or impairments are of such severity that he is

not only unable to do his previous work but cannot, con-

sidering his »ge, education, and work experience, engage

in any other kind of substantial gainful work which

exists in the national economy” (42 U.S.C. 13820 ͥiͤ (3)

(B)).2 But paragraph B does not identify any non-

medical factors that must be considered on an individual-

(SSR) 83-19 provided that the combined impact of several impair-

ments could be considered in determining whether a claimant's im-

pairments equalled the listings. See J.A. 239. That requirement is

carried forward under current regulations. See 20 C. F. R. 416.923

(stating that fhe combined effect of multiple impairments will be

considered “throughout the disability determination process”); 20

C.F.R. 416.926(a) ‘explaining the method for determining whether

a claimant's “impairment(s) is medically equal to a listed impair-

ment”). In light of these regulatory provisions and SSR 83-19,

respondents err in contending (Br. in Opp. 8, 21) that the Listings

do not allow for consideration of the combined effect of multiple

impairments. The 1984 Act therefore casts no doubt on the Secre-

tary’s longstanding approach to evaluating claims for child's dis-

ability benefits, and respondents in fact point to no evidence of con-

gressional intent in 1984 to mandate a change in that approach.

nis inquiry is required only if the claimant’s impairment

satisfies the threshold level of severity that is applied at step two

of the sequential evaluation process for adults. See Yuckert, 482

U.S. at 148-149. Even so, 42 U.S.C. 423(d)(2)(A), after which

42 U.S.C. 1282c(a)(3)(B) was patterned, was enacted in 1967 as

part of amendments designed to reempha ize the predominant

importance of medical factors in the disability determination.”

Yuckert, 482 U.S. at 148, quoting 8. Rep. No. 744, 90th Cong.

‘ Is&\Sess. 48 (1967).

ized basis in children in the same manner that an adult

claimant’s age, education, and work experience are taken

into account. Nor does paragraph B direct that the

functional abilities of the child (notwithstanding the im-

pairment be considered on an individualized basis in

children in a manner that is analogous to the individ-

ualized consideration (by use of the RFC assessment)

with respect to an adult claimant’s ability to work. It

does not, for example, require an individualized inquiry

into whether the child retains the residual ability to per-

form “age-appropriate” activities, as respondent suggests

(Br. in Opp. 28).

Perhaps most significantly, paragraph B of Section

13820 %a (3), unlike paragraph (A), has no parentheti-

cal “comparability” clause. The presence in paragraph

B of suca a clause providing for comparable“ treat-

ment) might have been understood to require the sort of

parallel that respondents and the court below urge be-

tween the disability determination process for children

and the individualized assessment of an adult claimant's

vocational factors and residual ability to work. The ab-

sence of such a clause, by contrast, substantially under-

cuts that position, for “ijn the context of the statute's

precisely drawn provisions, this omission provides persua-

sive evidence that Congress deliberately intended” not to

require a “comparabl[y]” individualized consideration of

residual abilities and non-medical factors. United States

v. Erika, Inc., 456 U.S. 201, 208 (1982); see also United

States v. Fausto, 108 S. Ct. 668, 673 (1988); Block v.

Community Nutrition Institute, 467 U.S. 340, 347

(1984).

The legislative history likewise suggests the deliberate

nature of paragraph Bs omission of any reference to

children. In describing this provision, the House Report

explicitly noted that the inquiry into the claimant’s abil-

ity to work—and therefore into the effect that his age,

education and work experience might have on his ability

to work should not be conducted in the case of children.

The House Report explained:

respect to children.

3. We also think it significant that Congress was

made aware of the Secretary's general approach to chi'd’s

always be realistic to infer approval of a judicial or

administrative interpretation from congressiona! silence

alone. * * * But once an agency's statutory construc-

tion has been fully brought to the attention of the public

and the Congress,’ and the latter has not sought to alter

that interpretation although it has amended the statute

in other respects, then presumably the legislative intent

has been correctly discerned.” United States v. Ruther-

ford, 442 U.S. 544, 554 n.10 (1979) (citations omitted

See also North Haven Board of Education v. Bell, 456

U.S. 512, 535 (1982); CBS, Inc. v. FCC, 453 US. 367,

382 (1981).

As discussed more fully below (see pages 36-38

infra), the Secretary’s method of adjudicating child’s

disability claims without any individualized considera-

tion of vocational or other nen-medicai factors was fully

formed in 1974. On January 11, 1974, the Secretary

published for comment the proposed regulations govern-

ing determinations of disability under the SSI program,

which had just gone into effect on January 1, 1974. See

39 Fed. Reg. 1624 (1974). Those regulations provided

that disability “shall be deemed to exist for a child under

age 18” if (1) he is not engaged in substantial gainful

activity, (2) his impairment meets the durational limita-

tions for adults, and (3) his impairment is included in

the Listing in Appendix 1, or, if not listed, “is deter-

mined by the Social Securi ] Administration, with ap-

propriate consideration of the particular effect of disease

processes in childhood, to be medically the equivalent of

a listed impairment” 39 Fed. Reg. 1626 (1974). adding

20 C. F. R. 416.904). After receiving and reviewing pub-

lie comments, the Secretary published the regulations in

fina! form on July 29, 1975. 40 Fed. Reg. 31,778, 31,783

(1975).

Contemporaneously with the publication of the proposed

regulations, SSA sent Supplement 1 to Disability Insur-

ance Letter III-11 to the state agencies on January 9,

1974, in a:. effort to elaborate on the guidance necessary

for them to begin the adjudication of claims. See J.A.

94-114. The supplementary letter noted that the proposed

regulations “specifically require] that a child’s impair-

ment or impairments must either meet or equal the list-

ing of impairments which will be published in an appen-

dix” (J. A. 95 emphasis in original It accordingly

furnished materials to assist the recipient agencies in

determining which criteria in the adult Listing could be

used in evaluating children J. A. 101-103), as well as a

list of “childhood impairment guides” to assist in de-

termining whether a chiid’s impairment was equivalent

in severity to a listed impairment, taking into account

special considerations in children (J. A. 104-114). Those

informal “guides” described impairments “the impact of

which will interfere with the child’s major activities

(le., growth and development) to the same extent as

the impact of the impairments listed in the «adult cri-

teria interfere with the adult’s ability to engage in sub-

stantial gainful activity” (J.A. 97). It was expected

that after sufficient experience had been gained in apply-

ing the guides and supplemental criteria were developed,

they would be published in the regulations themselves as

part of a separate Listing applicable to children (J.A.

95).

After some delay in developing published criteria, sev-

eral state agencies and other interested groups expressed

concern to Congress during its oversight of the com-

mencement of the SSI program that SSA had not issued

more specific or definitive guidelines to implement the

general principles embodied in the regulations. See S.

Rep. No. 1265, 94th Cong., 2d Sess, 24-25 (1976)." In

the legislative deliberations that followed, and ultimately

resulted in the enactment of Section 501(b) of the Un-

employment Compensation Amendments of 1976, there

can be no doubt that Congress was fully apprised of

the Secretary’s methodology.” As the Senate Report on

the 1976 Act recognized, quoting the central regulatory

provision, “(t]he regulations which have been issued

21 See also Supplemental Security Income Program: Hearings

Before the Subcomm. on Public Assistance of the House Comm. on

Ways and Means, 94th Cong., Ist Sess. 329, 349, 354, 363-364, 520,

535, 538, 541, 548, 781-782 (1975) (hereinafter 1975 Hearings}.

22 During oversight hearings on the SSI program in 1976, the

Commissioner of Social Security summarized the use of the in-

formal guides and evaluation concep.s to adapt the adult Listing to

children, and noted that he had sent a letter to the House Sub-

committee on Public Assistance in July 1975 explaining SSA's

approach. Oversight of the Supplemental Security Income Program:

Hearings Before the Subcomm. ov Oversight of the House Comm.

on Ways and Means, 94th Cong., 2d Sess. 21-22 (1976); see also

1975 Hearings at 781-782.

with regard to disability for children state that if a

child’s impairments are not those listed, eligibility may

still be met if the impairments ‘singly or in combination

are determined by the Social Security Administra-

tion, with appropriate consideration of the particular

effect of the disease processes in childhood, to be medi-

cally the equivalent of a listed impairment.’” 8. Rep.

No. 1265, supra, at 24. Section 501/b) of the 1976

Act did not question that basic approach. To the

contrary, it was intended to ensure that the Secretary

adopt without further delay more specific or definitive

guidelines to implement the general principle of medi-

cal equivalence embodied in the regulations. S. Rep.

No. 1265, supra, at 24-25. The Senate Report recognized

the difficulty of developing “objective criteria” for de-

termining how to apply the disability definition to chil-

dren; but the Committee perceived a need for uniform

guidance, and it noted that “SSA ha[d] been circulating

draft regulations with criteria for child disability for

some time” (id. at 25). The Senate Report also stated

that the legislation was designed to “end the present un-

certainty which the State agencies and others have with

regard to what constitutes disability in a child.” Jbid.

The Secretary published for comment SSA’s draft regula-

tions and implementing criteria only three months after

the 1976 Act was passed (41 Fed. Reg. 53,042 (1976)),

and published them in final form two months later (42

Fed. Reg. 14,705 1977

This history cannot be squared with the court of ap-

peals’ conclusion that the Listing approach embodied in

the regulations published both before and after the 1976

Act was passed is “manifestly contrary” to the Act

(Chevron, 467 U.S. at 844) and that Congress specifically

intended to require the Secretary to engage in an in-

dividualized consideration of vocational factors or other

non-medical factors and RFC in determining a claim-

ant’s eligibility for child’s disability benefits. To the con-

trary, the ad hoe approach respondents advocate would,

if anything, be contrary to the 1976 Act's purpose of re-

quiring the Secretary to furnish the States with objective

standards to assure uniform administration.”

Moreover, Congress has never expressed disagreement

with the manner in which the Secretary has implemented

the child’s disability program. Without suggesting any

authoritative dimension to these materials, we note that

in a report on the SSI program published soon after the

regulations were promulgated in 1977, the Senate Fi-

nance Committee Staff noted the publication of the regu-

lations without questioning their validity, observing that

the nonmedical vocational factors were not applied

to the children for basically the same reasons they had

not been applied to disabled widows in earlier legislation,

i. e., that as a group they had not had enough attachment

to the labor force to make application of the factors

feasibie.” Staff of Senate Comm. on Finance, Report on

SSI Program, 95th Cong., Ist Sess. 125 (Comm. Print

1977). Again in 1979, the Senate Finance Committee

Staff noted that the child’s disability regulations pub-

_ lished in March 1977 “were those needed to implement

the childhood disability provisions of the SSI program.”

Staff of Senate Comm. on Finance, Report on Issues Re-

lated to Social Security Act Disability Programs, 96th

Cong., Ist Sess. 20 (Comm. Print 1979). Our point is

this: the manner in which the Secretary has imple-

mented the “comparable severity” standard in 42 U.S.C.

13820 % s A has been brought to Congress's atten-

tion on a number of occasions. But despite comprehen-

sive congressional oversight of the SSI program and the

standards for determining disability (see, e. g., Schweiker

2° The House passed a bill in 1976 that likewise would have

mandated the adoption of regulatory criteria for children, but

would have expressly required the regulations to include “medical,

social, personal, educational, and other criteria.” 122 Cong. Rec.

27,853 (1976). Significantly, the provision Congress enacted as

Section 501(b) of the 1976 Act did not include the quoted

language.

v. Chilicky, 108 8. Ct. 2460, 2469 (1988); Heckler v.

Day, 467 U.S. 104, 111-118 (1984 including the ex-

tensive amendments made by the Social Security Dis-

ability Benefits Reform Act of 1984, Congress has never

drawn into question, much less altered, the Secretary’s

regulatory approach.

C. The Child’s Disability Regulations Are Based on a

Contemporaneous and Longstanding Interpretation of

te Statutory Standard That Is Both Reasonable and

Fully Consistent with the Purposes of the Act

1. The Secretary's Regulations Reflect a Longstanding

and Contemporaneous Construction of the Act

That Has Been Consistently Maintained for Over

Fifteen Years

This Court has emphasized on many occasions that ad-

ministrative regulations are entitled to special deference

where they represent a contemporaneous construc-

tion of a statute by the men charged with the responsi-

bility of setting its machinery in motion, of making the

parts work efficiently and smoothly while they are yet

untried and new.“ Aluminum Co. of America v. Cen-

tral Lincoln People’s Utility District, 467 U.S. 380, 390

‘1984), quoting Udall v. Tallman, 380 U.S. 1, 16 (1965).

\. ~pare Public Citizen v. Department of Justice, No.

88-429 (June 21, 1989), slip op. 23 n.12. The Court has

also held on many occasions that “longstanding” regula-

tions that have been consistently maintained are entitled

to comparatively greater deference than regulations that

are relatively recent or have frequently been changed.

See, e.g. FEC v. Democratic Senotorial Campaign

Comm., 454 U.S. 27, 32-38 (1981); Udall v. Tallman,

380 U.S. at 16-17. Each of these descriptions applies

with full force to the regulations at issue here: they

were adopted contemporaneously with the implementa-

tion of the child’s disability program; they have been ir.

effect in their present form for over fifteen years: and

they have been consistently maintained in that form

throughout this lengthy period.

;

gram, under the statutory grants of authority in 42

US.C. 405(a) and 1383(d)i1). It

partment’s extensive experience in making disability de-

in SSA Disability Insurance Letter No. III-11 J. A. 89-

93). DIL III-II was sent to state agencies responsible

for disability determinations on September 7, 1973,

January 1, 1974.“ The Letter explained the basic ra-

tionale for the approach SSA planned to pursue (and has

pursued ever since J. A. 90-91 emphasis in original

Historically, the term disability“ has, under title

II. been associated exclusively with an inability to

5 fF

110

He 4

are not ordinarily expected to engage in such activ-

ity. Accordingly, disability in children must be de-

fined in terms of the primary activity in which they

engage, namely growth and development, the process

of maturation. Additionally, * * * the impact of the

disease may be quite different [in children.

These factors make it impossible to compare directly

the severity of the child’s impairment with that of

an impairment which would prevent an adult from

engaging in SGA [substantial gainfu! activity];

means that the severity of the impact the child’s

impairment(s) must be “comparable” to the severity

of the impact of an impairment(s) which would

prevent an adult from engaging in any substantial

gainful activity. In applying this concept to adjudi-

cation, childhood disability will be determined solely

in consideration of medical factors.

DIL III II further explained that vocational factors

will not be considered in the evaluation of childhood dis-

ability,” because t he application of such factors would

be inappropriate since the primary activities of children

are not generally measured in vocational terms” (J.A. 91

(emphasis in original“

In addition, the state agencies were informed that the

Listing of Impairments (used to evaluate adult dis-

ability claims under Title II solely on the basis of medi-

cal factors) would be utilized to the extent feasible to

evaluate SSI child’s claims ss well. However, SSA recog-

nized that some of those listings would be inappropriate

to use in evaluating children, and it stated that supple-

mentary guides would be issued to explain how the Title

II Listing for adults, including the concept of medical

equivalence, would be adapted to the special circumstances

of the child’s disability program. SSA also stated that

after it carefully analyzed the adjudicative experience

with these guides, “[p]ermanent evaluation criteria will

be formally issued at a later date” (J.A. 92).

Thus, the basie contours of the approach to evaluating

claims for child’s disability benefits were in place before

the SSI program even went into effect on January 1,

1974. That approach embodied the essential elements of

the child’s disability program as it exists today: deter-

minations based on medical factors alone, measuring the

severity and impact of the impairment itself; use of

the Listing for that purpose; identification of criteria

under the Listing on the basis of a legislative-type assess-

ment of each listed impairment’s impact on a child’s de-

velopment; and no individualized consideration of voca-

tional or other non-medical factors (or, therefore, of

RFC).

As the Secretary contemplated in 1974 (and as Con-

gress specifically directed in 1976), the special medical

criteria against which a child’s impairments are to be

measured were subsequently elevated to the form of a

supplemental Listing. The Listing also incorporated ad-

ditional and more detailed criteria based on the accumu-

lated experience gained during the first several years of

the SSI child’s disability program. The regulations were

proposed on December 3, 1976 (41 Fed. Reg. 53,042) and

were formally adopted on March 16, 1977 (42 Fed. Reg.

14,705).

Those regulations retained the general standards of

disability for children that were contained in 20 C. F. R.

416.904 (1976), including the general requirement that

a child’s impairment must meet a listed impairment or

be “determined by the Social Security Administration,

with appropriate consideration of the particular effect

of disease processes in childhood, to be medically the

equivalent of a listed impairment” (42 Fed. Reg. 14,707-

14,708 (1977)). But in order to furnish more specific

guidance, the regulations added a new Part B to the Ap-

pendix of listed impairments (42 Fed. Reg. 14,708 et seq.

(1977) ), which contained a] dditional medical criteria”

for the evaluation of children where the criteria in Part

A do not give appropriate consideration to the “particular

390

disease process in children“ (id. at 14, 708). The Seeretary

made clear in the preamble to chese regulations, however,

that the special criteria in the Part B Listing did not con-

tain new substantive standards, but rather were intended

to “clarify existing adjudicative guides” (those previously

furnished by SSA in DIL III-11 and supplements

thereto) and to “facilitate the decision making process”

by furnishing specific criteria directly applicable to

children. Id. at 14,705. As a result, the Secretary

stressed, “determinations of disability of children * * *

have been made and will continue to be made under the

authority provided in [20 C. F. R.] 416.904 and in con-

sideration of the basic requirements stated therein“

(ibid.), which include the requirement that the impair-

ment meet or equal the Listing.

The preamble to the final regulations explained that the

special medical criteria for children “were developed and

formulated over a 2-year period by the Social Security

Administration Medical Consultant Staff together with

practicing physicians, and other professionals, such as

psychologists, who are experts in various specialties, pri-

marily pediatrics,” and that “[s]everal groups in the

medical community were requested to comment on those

medical criteria as they were being formulated” (42 Fed.

Reg. 14,705 (1977)). The preamble further explained

that in identifying impairments and the level of severity

that would establish disability, “these professionals placed

primary emphasis on the effects of physical and mental

impairments in children, the impact of the impairment

on the child’s activities, and the restrictions on growth,

learning, and development imposed on the child by the

impairments. Those impairments which were determined

to impact on the child’s development to the same extent

that the adult criteria have on an adult’s ability to en-

gage in substantial gainful activity were deemed to be of

‘comparable severity’ to the adult listing.” All the listed

impairments have a disabling impact on the child’s devel-

opment in one form or another—physical, mental, emo-

tional, or social. Id. at 14,705-14,706.

In response to comments, the preamble to the final

regulations also specifically addressed several of the con-

siderations respondents now raise. First, in response to

a comment that SSA “interprets severity [of an impair-

ment} in medical rather than functional terms,” the

Secretary explained that that interpretation was necessi-

tated by 42 U.S.C. 13836 (a) (3) (C, which specifies that

a physical or mental impairment be one that is “demon-

strable by medically acceptable clinical and laboratory

diagnostic techniques.” At the same time, the Secretary

noted that the new medical criteria in the regulations “do

result in functional limitations or restrictions, depending

on the nature of the impairments, and these have been

considered.” 42 Fed. Reg. 14,706 (1977).

Second, the Secretary pointed out that the approach

for evaluating children is flexible, explaining that the

listed impairments “provide a means to efficiently and

equitably evaluate the more common impairments” and

also allow a claimant to establish eligibility by showing

that he has an impairment or combination of impair-

ments that are medically equivalent to a listed impair-

ment. 42 Fed. Reg. 14,706 (1977).

Third, in response to comments that the regulations

should be broadened to include developmental needs, the

Secretary noted that the medical criteria in the Listing

“do consider developmental levels“ and that Imlany of

the criteria were established by considering disability in

terms of departures from developmental norms at various

levels.” 42 Fed. Reg. 14,706 (1977). These criteria take

into account physical, mental, and emotional development,

and incorporate developmental milestones where they ap-

ply. Ibid. By the same token, the Secretary explained

that developmental needs—e.g., counseling, special edu-

cation, training, rehabilitation, and guidance—are not

considered as such, “because they are not within the

scope of the law.” Ibid.

Fourth, the Secretary rejected the proposition that a

child be denied benefits if he actuaily performs age-

appropriate activities, just as an adult is denied benefits

if he is actually engaged in substantial gainful activity.

He explained that such a standard for all impairments

would be “unduly restrictive and not within the intent

of the law.” 42 Fed. Reg. 14,706 (1977).

As the foregoing discussion makes clear, the Secretary's

construction of the “comparable severity” standard in 42

U.S.C, 13820 %% (3 (A to permit the regulatory ap-

proach that the court of appeals invalidated on its face

was adopted at the very outset of the SSI program and

reaffirmed in greater detail in light of initial experience

under the programs (and consideration of issues very

similar to those now raised by respondents). This long-

standing and consistently maintained interpretation of

the statute is entitled to great deference.

2. The Secretary's Methodology for Adjudicating

Child’s Disability Cases Is Reasonable and ( onsist-

ent with Congress's Purposes In Extending SSI

Désability Benefits to Children

For the reasons given by the Secretary both in adopt-

ing his regulatory approach to children’s disability bene-

fits in 1973 and in reaffirming that approach when formal

regulations augmenting the Listing were promulgated

in 1977, it can scarcely be maintained that the method-

ology chosen to implement the statutory directive is “ar-

bitrary, capricious, or manifestly contrary to the statute.”

Atkins v. Rivera, 477 U.S. at 162; see Yuckert, 482 U.S.

at 145.

The court of appeals faulted the Secretary’s regulations

as “too restrictive” because they did not afford children

“the opportunity for individual evaluations comparable

to the residual functional capacity assessment for adults.”

Pet. App. 16a, 17a. This concern is misguided. The

regulations do require that each child who applies for

benefits be evaluated on an individualized basis. The

regulations provide for an individualized assessment by

allowing each child to establish the severity of his own

impairment and to qualify for benefits by showing that

his impairment meets or exceeds any impairment listed

in either Part A or Part B of the Listing or is the med-

ical equivalent of any such impairment. See Hinckley,

742 F.2d at 23.

Nor is it true, as the court below surmised, that the

child’s disability regulations are divorced from func-

tional considerations. To the contrary, some of the

criteria in Part B explicitly call for an assessment of-a

child’s functional capacity where such an assessment is

relevant in measuring the severity of the impairment.

See, ¢.g., 101.03(C) (“[i)nability to perform age-related

personal self-care activities involving feeding, dressing,

and personal hygiene”); 111.06 (“Persistent disorganiza-

tion or deficit of motor function * * * which * inter-

feres with age-appropriate major daily activities”);

112.03 (psychosis resulting in “marked restriction in the

performance of daily age-appropriate activities

and] deficiency of age-appropriate self-care skills”).

The regulations focus, however, not on the individual

child’s ability to function as such, but on the impact of

the impairment on his physical, mental, and emotional

growth and development. An assessment of functional

abilities will normally be subsumed in applying these

standards. Moreover, as noted above, if, as respondents

allege, there are any “gaps” in the Secretary’s Part B

Listing Br. in Opp. 24)—that is, if experience reveals

that the Listing overlooks certain impairments that have

a severe impact on childhood growth and develepment.

or inadequately gauges the impact of a specific impair-

ment on childhood development—the solution is net to

jettison the entire regulatory framework. Rather, as

the district court observed. the proper remedy is to

challenge particular Part B listings ‘or the absence of

such listings) on judicial review of the denial of dis-

ability benefits.

The Secretary's decision not to provide for an indi-

vidualized assessment of a child’s residual functional

capacity is also supported by powerful practical consider-

ations. Simply put, an assessment of residual functional

capacity or functional impairment cannot exist in a

vacuum. The relevant question is, functional capacity to

do what? With respect to adults, the Secretary is in-

structed to inquire into an individual’s functional capac-

ity to engage in “substantial gainful activity,” i. e., to

work. Ability to work thus provides a single, objective

benchmark against which a person’s individual non-

medical attributes—his age, education, and previous work

experience—can be assessed. As the Secretary has recog-

nized from the outset of the program, however, the as-

sessment of disability in children “cannot properly be

associated with an inability to work, since children are

not ordinarily expected to engage in such activity.”

J.A. 90.

Although the court of appeals would require the Sec-

retary to make “individua! evaluations comparable to the

residual functional capacity assessment for adults“ Pet.

App. 17a}, it offered no suggestion as to how this was

to be done. A case-by-case evaluation of whether a child,

if he were an adult, would be disabled, would be wholly

unworkable. Adults are evaluated on the basis of their

age, education and work experience. If this process were

extended to children. how old, how educated, and how

experienced should the “hypothetical” adult be? It is

also significant that if an adult is considered disabled

only because one or more of these vocational factors is

adverse i. e., the claimant is of or approaching ad-

vanced age, is relatively lacking in education, or does not

have work experience that is readily transferable to other

jobs—the basis of his disability is not the “severity” of

the impairment standing alone, but the impairment plus

one or more other factors that are irrelevant for children.

Put another way, the impairment of such an adult is not

one that would in itself render all adults disabled. and it

therefore is not one that attains the level of severity to

which the impairments in all children can meaningfully

be compared.

If, as the Secretary firmly believes, the ability-to-work

criterion specified by Congress for use with adults cannot

be applied directly to children, there is no analogous

benchmark that can feasibly te adopted for use with

children. Virtually any substitute formulation, for ex-

ample, ability to engage in “age-appropriate activities”

(Br. in Opp. 28), would be so amorphous that it would

provide, at best, a fertile field for disagreement among

experts. It would manifestly not provide a workable

standard suitable for application in thousands of indi-

vidual disability adjudications.“ Moreover, any such sub-

stitute formulation would ve no foundation in the text

of the statute. If Congress intended to require an indi-

vidualized assessm ut of functional capacity in children's

disability cases and for the reasons discussed above, we

1271

;

8 7

sional guidance on this question strongly supports the

Secretary’s decision to forgo any such inquiry.

More generally, the Secretary’s regulatory approach

accords with the different purposes underlying the dis-

ability programs for adults and children. The purpose

of disability benefits for adults is to ensure “the basic

means of replacing earnings that have been lost as a

result of * * * disability” for those who “are not able

to support themselves through work H.R. Rep.

No. 231, supra, at 146-147. For this reason, insofar as

adults are concerned. the Social Security Act defines

‘disability’ in terms of the effect a physical or mental

impairment has on a person's ability to function in the

workplace.” Heckler v. Campbell, 461 U.S. at 459-460

interpreti. g identical definition of disability in 42 U.S. C.

423(d)(2)(A)). In light of this purpose, it is appro-

priate for adults to be evaluated not only in terms of the

severity of their impairment but also in terms of their

residual functional capacity to perform work.

By contrast, Congress had a different set of considera-

tions in mind in providing for children’s SSI benefits.

Recognizing that disabled children from low-income house-

holds are “among the most disadvantaged of all Amer-

icans,” Congress thought that special disability benefits

would be appropriate for such children “because their

needs are often greater than those of nondisabled chil-

dren.” H.R. Rep. No. 231, supra, at 147-148. In other

words, the aim of Congress in establishing children’s

disability was not to replace lost income, but to provide

for the special health care needs of disabled children,

such as home health care expenses arising out of a

child’s medical impairment. It is entirely consistent with

this quite distinet purpose to focus consideration on the

severity of the child’s impairment from a medical per-

spective alone, without individualized consideration of

vocational or similar factors or the claimant’s reeidual

functional capacity. A child’s special needs will of neces-

sity be determined by the nature and severity of his im-

pairment, not by his ability to contribute to the family’s

income.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney General

THOMAS W. MERRILL

Deputy Solicitor General

EpwWINn S. KNEEDLER

Assistant to the Solicitor General

JOHN F. Cordes

MATTHEW M. COLLeTTE

Attorneys

JULY 1989

APPENDIX

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

1. Section 1614(a) (3) (A) of the Social Security Act,

as codified at 42 U.S.C. 1382e(a) (3) (A), provides:

An individual shall be considered to be disa 1

if he is unable to engage in any substantial gainful

activity by reason of any medically determinable

physical or mental impairment which can be expected

to result in death or which has lasted or can be ex-

pected to last for a continuous period of not less

than twelve months (or, in the case of a child under

tho age of 18, if he suffers from any medically de-

terminable physical or mental impairment of com-

parable severity ).

2. Section 1614½% (3)(B) of the Social Security Act,

as cod at 42 U.S.C, 13820 (a (30 (B), provides in

pertinent part:

For purposes of subparagraph (A), an individual

shall be determined to be under a disability only if

his physical or mental impairment or impairments

are of such severity that he is not only unable to

do his previous work but cannot, considering his

age, education, and work experience, engage in any

other kind of substantial gainful work which exists

in the national economy .

3. Section 501(b) of the Unemployment Compensa-

tion Amendments of 1976, Pub. L. No. 94-566, 90 Stat.

2685, provides:

Publication of Criteria.—The Secretary shall, within

120 days after the enactment of this subsection, pub-

lish ecriteris. to be employed to determine disability

(as defined in section 1614(a) (3) of the Social Se-

curity Act) in the case of persons who have not at-

tained the age of 18.

20 C.F.R. 416.924 provides:

We will find that a child under age 18 is dis-

abled if he or she—

(a) Is not doing any substantial gainful activity;

and

b) Has a medically determinable physical or

mental impairments) which compares in severity to

any impairment(s) which would make an adult a

person age 18 or over) disabled. This requirement

will be met when the impairment (s

(1) Meets the duration requirement; and

(2) Is listed in Appendix 1 of Subpart P of Part

404 of this chapter; or

(3) Is determined by us to be medically equal to

an impairment listed in Appendix 1 of Subpart P

of this chapter.

20 C. F. R. 416.925 provides:

n Purpose of the Listing of Impairments. The

Listing of Impairments describes, for each of the

major body systems, impairments which are consid-

ered severe enough to prevent a person from doing

any gainful activity. Most of the listed impa ments

are permanent or expected to result in death, or a

specific statement of duration is made. For all

others, the evidence must show that the impairment

has lasted or is expected to last for a continuous

period of at least 12 months.

b Adult and childhood diseases. The Listing of

Impairments consists of two parts:

(1) Part A contains medical criteria that apply to

adult persons age 18 and over. The medical criteria

in Part A may also be applied in evaluating im-

pairments in persons under age 18 if the disease

processes have a similar effect on adults and younger

persons.

(2) Part B contains additional medical criteria

that apply only to the evaluation of impairments of

persons under age 18. Certain criteria in Part A

do not give appropriate consideration to the par-

ticular effects of the disease processes in childhood ;

i.e., when the disease process is generally found only

in children or when the disease process differs ir its

effect on children than on adults. Additional criteria

are included in Part B, and the impairment cate-

gories are, to the extent possible, numbered to main-

tain a relationship with their counterparts in Part

A. In evaluating disability for a person under age

18, Part B will be used first. If the medical criteria

in Part B do not apply, then the medical criteria in

Part A will be used.

(ce) How to use the Listing of Impairments. Each

section of the Listing of Impairments has a general

introduction containing definitions of key concepts

used in that section.- Certain specifie medical find-

ings, some of which are required in establishing a

diagnosis or in confirming the existence of an im-

pairment for the purpose of this Listing, are also

given in the narrative introduction. If the medical

findings needed to support a diagnosis are not given

in the introduction or elsewhere in the listing, the

diagnosis must still be established on the basis of

medically acceptable clinical and laboratory diag-

ie techniques. Following the introduction in each

section, the required level of severity of impairment

is shown under “Category of Impairments” by one

or more sets of medical findings. The medical find-

ings consist of symptoms, signs, and laboratory find-

ings.

(d) Diagnoses of impairments. We will not con-

sider your impairment to be one listed in Appendix

1 of Subpart P of Part 404 of this chapter solely

because it has the diagnosis of a listed impairment.

Tt must also have the findings shown in the Listing

for that impairment.

„e Addiction to alcohol or drugs. ——

condition diagnosed as addiction to alcohol or drugs,

this will not, by itself, be a basis for determining

whether you are, or are not, disabled. As with any

other medical condition, we will decide whether you

are disabled based on symptoms, signs, and laboratory

findings.

6. 20 C. F. R. 416.926 provides:

(a) How medical equivalence is determined. We

will decide that your impairment s is medically

equivalent to a listed impairment in Appendix 1 of

Subpart P of Part 404 of this chapter if the medical

findings are at least equal in severity and duration

to the listed findings. We will compare the symp-

toms, signs, and laboratory findings about your im-

pairment s, as shown in the medical evidence we

have about your claim, with the medical criteria

shown with the listed impairment. If your impair-

ment is not listed, we will consider the listed im-

pairment 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, we wil] review

the symptoms, signs, and laboratory findings about

your impairments to determine whether the combi-

nation of your impairments is medically equal to

any listed impairment.

(b) Medical equivalence must be based on medical

findings. We will always base our decision about

whether your impairment s is medically equal to

a listed impairment on medical evidence only. Any

medical findings in the evidence must be supported

by medically acceptable clinical and laboratory diag-

nostic techniques. We will also consider the medical

opinion given by one or more medical or psychologica!

consultants designated by the Secretary in deciding

medical equivalence. (See § 416.1016.)

(e Who is a designated medical or psychological

consultant. A medical or phychological consultant

designated by the Secretary includes any medical or

psychological consultant employed or engaged to

make medical judgments by tre Social Security Ad-

ministration, the Railroad Retirement Board, or a

State agency authorized to make disability deter-

minations. A medical consultant must be a physi-

cian. A psychological consultant used in cases where

there is evidence of a mental impairment must be a

qualified psychologist. See § 416.1016 for the quali-

fications we consider necessary for a psychologist to

be a consultant.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.