Respondents Brief — Sullivan v. Zebley

; Nn

—- —r ee ee

BEST AVAILABLE COPY

QUESTION PRESENTED

Are children seeking Supplemental Security Income dis-

ability benefits entitled to an individualized determination of

all their impairments and functional limitations based upon the

requirement of 42 U.S.C. § 1382c(a)(3)(A) that they be found

disabled if they have “any” mental or physical impairments of

“comparable severity” to those which would cause an adult to

be found disabled?

STATEMENT OF THE CAGE ....... 26. ----eceeeeccnees

Tue Secretary Viocates THE “ComPaARABLE

Severity” Stanparp Or Tue Act By Denyinc

DtsaBLeED CHILDREN INDIVIDUALIZED ASSESS-

ments Or THerr FUNCTIONAL LIMITATIONS ...

A. The Statute Envisions An Individu-

alized, Functional For Children ........

B. The Childhood Method Does Not

The Functional Approach To Dis-

sbility Evaluation Required The Statute .

C. The Secretary's Listings-Only Approach

Imposes A Standard Stricter Than For

GEED ccccccccccccecccccccccccccess

Tue Secretary's Pouticy Or Denyine INDIVID-

UALIZED FUNCTIONAL ASSESSMENTS For

ImparReD CHILDREN Has Not Been ConsiIsTENT

Or ConTemporaNneous, Nor Has It BEEN

Arprrovenp By Conomess .........-..---..-5:-

A. The Secretary Has Been Inconsistent In His

Interpretation Of The Statute .............

1. Inconsistency On The Need For A Work-

ing Definition Of “Comparable Severity”

3. Inconsistency On The Nature Of The RFC

ee ened seeeenes

Contents Continued

4. Inconsistent Interpretation Of “Equiv-

alence”

ee ee eeeeeeeeeeeeeeeee eee eee e

ee eee eeeeeeeeeeeeeeeeeeee

C. Congress Has N Seed Sp Searsteay’

Gontbvastion Rather ts Action Suggests Dis-

1. The 1976 UCA Did Not Ratify The Secre-

tary’ Currert Policy .................

2. Has Not Approved The Secre-

Current Interpretation Through

DT Useebbheubentendeesececees<

Ill. Tae Secretary ALREADY Has DEVELOPED

WorRKABLE STANDARDs To INstTITUTE INDIviIDU-

ALIZED FUNCTIONAL ASSESSMENTS OF CHIL-

en, | nn cauenccececcues

Page

32

iv

TABLE OF AUTHORITIES

Cases Page

Aaron v. SEC, 446 U.S. 680 (1980). ... 2... 6... eee ee 43

Allegra v. Bowen, 670 F. Supp. 465 (E.D.N.Y. 1987)... 44

American Mining Congress v. EPA, 824 F.2d 1177 (D. C.

St Ee ocevcocccnncnseasassesescsncacecues 33, 34

Atkins v. Rivera, 477 U.S. 154 (1986) ... 2... 6... a 18

Barnett v. Weinberger, 818 F.2d 953 (D.C. Cir. 1987)... 34

Bethesda Hospital Ass'n v. Bowen, 485 U.S. 399 (1988). 15

Blanchard v. Bergeron, __. U.S. ——, 109 S. Ct. 939

Pt snduaneadecdenvhsanssivbasedsekesesaneds 41

Bob Jones University v. United States, 461 U.S. 574

ee 41, 42

Bowen v. American Hospital Ass'n, 476 U.S. 610

Pb nuedecsosdscckenenskdceadeunssenseeéee 33, 35

Bowen v. City of New Yurk, 476 U.S. 467 (1986) 3, 4, 14, 16, 31

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

Dillon v. Celebrezze, 345 F.2d 753 (4th Cir. 1965) ...... 16

Drombetta v. Sec’y of HHS, 845 F.2d 607 (6th Cir. 1987) = 5

EEOC vy. Associated Dry Goods Corp., 449 U.S. 590

SEED obcnveccceccnddancocsbauecseseeuacceoase 34

Fed. Elec. Comm'n v. Democratic Senatorial Campaign

Comm., 454 U.S. 27 (1981)... 2... cc cee cece eeeees

Franklin v. Sec’y of HEW, 393 F.2d 640 (2d Cir. 1968).. 16

General Electric Co. v. Gilbert, 429 U.S. 125 (1976).... 38

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

Heckler v. Day, 467 U.S. 104 (1984)... 2... 6. eee 43

Heckler v. Edwards, 465 U.S. 870 (1984) ............. 4

Hinckley v. Sec’y of HHS, 742 F.2d 19 (1st Cir. 1984)... 11

1.N.S. v. Cardoza-Fonseca, 480 U.S. 421

Dh cnnekentiandnuendunnebessene 15, 38, 34, 35, 36

Jefferson County Pharmaceutical Ass'n, Inc. v. Abbott

Laboratories, 460 U.S. 150 (1983)... 2.6... eee 36

Marcus v. Bowen, 696 F. Supp. 364 (N.D. Ill. 1988) 11, 21, 22

Morton v. Ruiz, 415 U.S. 199 (1974). ............4.. 34, 35

Nash v. Bowen, No. 88-2542 (8th Cir. Aug. 10, 1989)... 12

Powell v. Schweiker, 688 F.2d 1357 (11th Cir. 1982)... 11, 20

Schweiker v. Chilicky, __ U.S. —_, 108 S. Ct. 2460

ana a mmm aa Re RSA em aepse 42

Schweiker v. Hogan, 457 U.S. 569 (1982)... .......... 18, 26

SEC v. Sloan, 436 U.S. 108 (1978). ..............4.. 36, 41

Vv

Table of Authorities Continued

Southeastern Community College v. Davis, 442 U.S. 397

RA dedi ednineda ene nnadnessanedsne 33, 34, 35

Tolany v. Heckler, 756 F.2d 268 (2d Cir. 1985) ......... 25

TVA v. Hill, 487 U.S. 153 (1978)... 2... cen 36

United States v. Rutherford, 442 U.S. 544 (1979) ...... 41

Watt v. Alaska, 451 U.S. 259 (1981) ..... 20... 00000... 33

Wheeler v. Barrera, 417 U.S. 402 (1974)............. 18, 19

Wilkinson v. Bowen, 847 F.2d 660 (11th Cir. 1987) ..... 20

Zebley v. Bowen, 855 F.2d 67 (3d Cir. 1988).... 8, 11, 12, 23

Zuber v. Allen, 396 U.S. 168 (1969) .. 0.00.0. 41

STATUTES

Social Security Disability Benefits Reform Act of 1984, 98

Stat. 1794 eeeedeuneceetsceséed beseneas 10, 16, 24, 45

Unem t Compensation Amendments of 1976,

§$501(b), 90 Stat. 2667...........000..... 26, 36, 37, 41

SB U.S.C. SOGBIOME) .. cece cccccccccccccccccccces 16

42 U.S.C.:

§ 402(d) (1982 & Supp. IV (1986)... 2.0.0.0. 0000005. 44

EE 1,17

§ 402(d)( 1G) (Supp. IV 1986)... 0... eee, 44

DA heneeeknueedceeneeesesssecceséceusccce 15

§ 421(a) (1982 & Supp. IV 1986)............0...0.00.. 5

Ee ee a ee i ic 1,17

i oi 25

$ 423(f(Supp. IV 1986)... 00... e eee 10, 45

§ 1381, et seq. (1982 & Supp. IV 1986) .............. l

EE OS ae 36

ee passim

a 4,17

a 32

§ 1382c(aX3F) (Supp. [IV 1986)................ 1, 32, la

§ 1382¢(a(3G) (Supp. IV 1986)................ 5, 16, 24

§ 1383(d)(1) (1982 and Supp. IV 1986)............... 15

§ 1396a(a)(10)(amended 1981)............00000000... 18

Pe nciwesecccsnctacdedesecceccenccccsans 18

vi

Table of Authorities Continued

Page

LEGISLATIVE MATERIALS

Administration of Social Security Disability Insurance

phy ay > 1959: Hearings the Subcommittee

on the Administration of the Social Security Laws of

the House Comm. on Ways and Means, 86th Cong.

Bee Einncdesdecesdccueccesesecdosenesse 21, 22, 24

mn. open 101st Cong., lst Sess., Back-

ground Material and on Pro ms Within the

Jurisdiction of the Committee on Ways and Means,

Sec. II, Table 2 (Comm. Print 1989).............. 32

ey SE EE ccccccccccocccceccccsces 38

122 Cong. Rec. 27866 (1976)... . 0.6... cece cece ee eeees 39

Be , Bs SD GEE ccc cccccccccccccsecscece 40)

122 Come. Rec. S086 (1976)... 0... cece ccccccccesess 39

H.R. 8911, 94th Cong., 2d Sess., 122 Cong. Rec. 27853

Dl Pitedorigdnssbesnsecssedhbabessennneenees 39

Ph cbbddeesenccecesenssscesseseneeeaescéecse 25

H.R. Conf. No. 1745, 94th Cong. , 2d Sess..; inted

in 1976 U.S. Code, Cong. Admin. News 6032 ..... 40

H.R. Rep. No. 231, 92d Cong., Ist Sess., inted in

1972 U.S. Code, Cong. in. News 4989....... 1,17

Oversight of the yey ny Security Income Pro-

m: Hearings the Subcomm. on ight

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

cd ocdncnnckduccheonsoeeces 37

S. a No. 1265, 94th Cong., 2d Sess., inted in 1976

8. Code, Cong. Admin. News 5997............. 40

S. No. 2133, 84th Cong., 2d Sess., inted in 1956

8. Code, Cong. Admin. News 3877............. 45

Supplemental Security Income Program: ee

Before the Subcomm. on Public Assistance of

House Comm. on Ways and Means, 94th Cong., Ist

i ik a aol Biel a ee ate —

Ruves, REGULATIONS AND OTHER ADMINISTRATIVE

MATERIALS

20 C.F.R.:

EAT ge ee ee ee ee eee 44

DIED «ocndccoccecoosceesocecéeetstsente a |

§ 416.920a(c)(3)

EE 1, 7, la-2a

Dist heeshadaekdeseusecdsectetsacteuidann 7

i hl ie 1, 3, 2a

a a ee Ee 3

Di dadinecasteaseddansendeetseeieeue 27

ee i ie ee 1, 4, 5, 31, 2a

i i 4

Ce 5, 2a-3a

i n1é 66s neeecucadenasecececeiaannil 4

i inion ne te eeeenencncenncseidanns 43, 45

EE RS ee ee a ae MR eT ee 1, 45

Dt téihevacadbsasebnbséboesadeatedecseceauc 4

20 C.F.R. Part 404, Subpt. P, App. 1

Dt) (itheeuseaabenhuandensnéecsedédocdusaus 46

iat ais cote Ee a ace 28

i scsncedehacddadnsbhedsdasaéoneusanione 28

Di iiede nik shuadbban eaddadeadeuneiaadene 28

Ee ae ee nae ane 28

ob dcudduwinduedesdésaksetebhdeséoebestaiie 28

ee ieee ce ee eet keeueeesensasanunaeied 28

EE ene ne See 10

Di idithiieedcceedeeducuecenncsnaadtendendal 9

Di nddebnatddundugcessabescosadenisndiik 4

Att ne tacn bee secnuecnnéud de iedneks 8, 20

ea a i 10

33 Fed. Reg. 11741 (1968)....0..... 0... cece cece. . 2

42 Fed. Reg.:

DTU Unens cabddncnccnseseoddbbsecensbescucc 28

Table of Authorities Continued _

i iietesesconeeesddede lobes 7, 23, 29, 30, 31

43 Fed. Reg.:

Dt tiesesengeendndsodsédavaedstedsasonnee 16

DT bbccesesvesesscesstconeceeatedoteses 32

44 Fed. Reg.:

jc bdneecenceaksoonedseneensneennell 3

lh nt oceecencuasennceresesonedsaaeadeet 22

pct ccespecustesdasedeunneseasenneees 22

45 Fed. Reg.:

Dt léedeccanseceseooucseosesossnesetoor 32

DT dicuceudunganabenenesandasdeasanes 22

50 Fed. Reg.:

nn ctn dd cesses cebeeensensesennebuin 6,7

i ticndansiedidsgeddbeddéaneameeesnene 7, 22

Nk code cbeocddvenedubaadanedee 6

lcci tvdcecuceséausecsusdaassetunaades 6

ntl is ti contedadsdhbiuandeuadueaees 6

Tt. c i ekcceeeceeiccudbonguveaeuneaete 3

Dl idiscecuvseadéatedteneusdonieonnseses 25

ins cdadbdddndesskedtudddadseneanekes 25

54 Fed. Reg.:

tt dtccctesehbebdussdeaseeseunbbecbnes 3, 45

eee 46

id tc cenadeeunduderseseoerenarets 31, 45

EE Lee 46

SSA Insurance Letters:

No. III-11 (September 7, 1973) .................. passim

No. III-11 Supplement 1 (January 9, 1974)........ passim

Social Security Administration, Program Operations

Manual System:

Adan cand cc ideeeudemsonnsteees 1, 31-4a

ne eet ied eeeaniins 25

a 0 ot hte cee teenkeenien 9

I a a eee 6

inc i pcdbacdcededdeddabescstneunes 5

a a a 5

Social Security Rulings

Table of Authorities Continued

Page

Pe codeushbaddssiidtdiadéal deme eee 6

OTHER AUTHORITIES

H. Fox & A. , Disabled Chiidren’s Access to SS!

ond Medicaid Bonofts RRS 23, 24

the National Commission on n Diseases

MOS 1909) anon on ae enneeR 23

STATUTORY AND REGULATORY PROVISIONS INVOLVED

Section 1614(aX(3)A) and (F) of the Social Security Act, 42

U.S.C. § 1382e(aX@MA) and (F) (1982 & Supp. IV 1986); 20

C.F.R. $§ 416.920a(e)(3), .924, .925(a), .945(a), .994(c); and

SSA, Program Operations Manual System, DI 00401.335, are

reproduced at Appendix, infra.

STATEMENT OF THE CASE

A. Statutory Framework

To complement the Social Security insurance programs,

Congress in 1972 established the Supplemental Security

'ncome (“SSI”) program for indigent people who are 65 or over,

blind or disabled. 42 U.S.C. § 1381, et seq. (1982 & Supp. IV

1986). Congress, in recognition of the extraordinary living

expenses of disabled children, extended SSI in the “belief that

disabled children who live in low-income households are cer-

tainly among the most disadvantaged of all Americans and that

they are deserving of special assistance in order to help them

become self-supporting members of our society.” H.R. Rep.

No. 231, 92d Cong., Ist Sess. 147-48 (1971), reprinted in 1972

U.S. Code, Cong. Admin. News 4989, 5133-34.

An adult is disabled under SSI if he or she “is unable to

engage in any substantial gainful activity (“SGA”) by reason of

any medically determinable physical or mental impairment

which can be expected . . . to last for a continuous period of not

less than twelve months.” 42 U.S.C. § 1382e¢ (aX(3)A).' This

same provision also states that a child under 18 years of age is

disabled, “if he (or shej suffers from any medically determina:

ble physical or mental impairment of comparable seterity.”

‘emphasis added).

' This is the same disability test that Congress had legislated

earlier for disabled adults, and adults claiming to have had a disability

in childhood, in the Title I] Social Security Disability Insurance

program. See 42 U.S.C. § 423(d)(1)A) (general definition for “dis-

ability” for disability insurance benefits); § 492(d)(1C) (incorporat-

ing general definition for Child Disability insurance benefit).

2

Congress, by adopting the same disability test from Title II,

and by invoking the “comparable severity” standard for SSI

children claimants, required near identity of treatment

between disabled children and adults claiming SSI benefits.

Nonetheless, the Secretary established two markedly dif-

forent regulatory methods and tests to measure the disabling

severity of the medical impairments of adult and child claim-

ants. This disparate treatment denies children the realistic,

individualized assessment of their functional limitations which

adults receive. The result is that a disability claimant under 18

is denied SSI benefits where a claimant over 18 with the

identical functional limitations would be granted such benefits.

The dispute here is whether Congress intended disabled chil-

dren to have such dissimilar, and inferior, evaluation of their

claims.

B. Regulatory Scheme—Adult Disability Evaluations

Under the SSI program, adults are evaluated using the same

five-step sequential evaluation process as is used in the Title I

adult and child disability insurance programs. See Bowen v.

Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. §$§ 416.920,

404.1520. At step one, it is determined whether the claimant is

engaging in “substantial gainful activity” (“SGA”); if so, the

claim is denied. 20 C.F.R. § 416.920 (b). If the applicant is not

working, the decision-maker determines, at the second step, if

there is a “severe impairment” which “significantly limits . . .

physical or mental ability to do basic work activities. . . .” 20

C.F.R. §416.920(c). The claim is denied if there is no “severe

impairment,” which screens out obviously ineligible claimants.

Yuckert, 482 U.S. at 141.

If the impairment is “severe,” the evaluation proceeds to the

third step to determine whether the impairment(s) “is listed in

Appendix 1 (of 20C.F.R. pt. 404, subpt. P] or is equal toa listed

impairment(s) .. . .” 20 C.F.R. §416.920(d). Such “listed”

impairments are considered by the Secretary “severe enough

to prevent a person from doing any gainful activity,” not

3

merely “substantial gainful activity.” 20 C.F.R. §416.925(a)

(emphasis added).?

This third step was intended to “streamline” the decision-

making process by identifying claimants with the most severe

medical impairments, Yuckert, 482 U.S. at 153, granting bene-

fits “without further inquiry” into the complete impact of the

claimant’ disabling impairments, Heckler v. Campbell, 461

U.S. 458, 460-61 (1983). The listings embody very high levels of

severity so that a qualifying claimant may be “conclusively

presumed to be disabled and entitled to benefits.” Bowen v.

City of New York, 476 U.S. 467, 471 (1986). Further, the Secre-

tary has repeatedly stated that the listings, whether adult or

childhood, do not attempt to include all impairments that may

be disabling, but rather include only the more “commonly” or

“frequently” diagnosed conditions.*

Claimants who do not satisfy the precise requirements of a

listed impairment also can be found disabled at step three if

their impairments are considered “medically equal” to a listed

impairment. 20 C.F.R. $§416.920(d), 416.926. What con-

stitutes “medically equal” has been the subject of conflicting

nositions by the Secretary. Since at least 1980 the Secretary

has prohibited consideration of the functional consequences of

? The listings severity level is thus set at a threshold considerably

higher than that of the statute. See 42 U.S.C. § 1382e(a)(3) A)

(“unable to engage in any substantial gainful activity”).

® See, e.g., 0 Fed. Reg. 50068, 50069 (1985) (list contains cnly most

“frequently diagnosed” impairments); 44 Fed. Reg. 18170, 18175

(1979) (“The Listings criteria are intended tc identify the more com-

monly occurring impairments . . .”). The Secretary acknowledges

that experience may reveal that he “overlooks certain i

(Pet. Br. 42). Such “oversights” miss entire categories of childhood

impairments, such as Down and Tourette Syndrome. No usable list

can ever encompass all potentially disabling impairments. Thus,

while we welcome the Secretary's recent proposal to update the

childhood listings for mental impairments, 54 Fed. Reg. 33238 (1989),

they too can never hope to encompass every disabling condition.

At the final two steps of the five-step process, the Secretary

“must assess each claimant's individuai abilities.” Campbell,

461 U.S. at 467 (emphasis added). He determines whether the

claimant can pursue former work (step four) or any other work

in the national economy (step five), given his or her “residual

functional capacity” (“RFC”). RFC is, in turn, based upon all

medical and functional factors. The RFC evaluation of “individ-

ual abilities” is made by a reviewing physician. City of New

York, 476 U.S. at 471 n.1. It is separate from the purely

vocational assessment, based on the statutory factors of “age,

education and work experience,” 42 U.S.C. § 1382e(aX3)B),

used to determine whether jobs exist which the claimant could

perform. 20 C.F.R. §§416.920(e) & (f), 416.960-.969. See

Campbell, 461 U.S. at 467.

RFC is a “medical assessment” of what the claimant “can

still do despite {his or her] limitations,” 20 C.F.R. § 416.945(a)

(emphasis added), and broadly encompasses basic physical

abilities (e.g., “walking, standing, lifting, carrying, pushing

.”), $416.945(b), and mental functioning (e¢.g., “ability to

understand, to carry out and remember instructions . . .”),

*Social Security Rulings are statements of policy that lack the

force and effect of law but are binding on all Social Security

adjudicators. 20 C.F.R. § 422.408; see Heckler v. Edwards, 465 U.S.

870, 873 n.3 (1984).

® The failure of the Joint Appendix to emphasize the word “overall”

is a typographical error.

§ 416.945(c).® See also SSA, Program Operations Manual Sys-

tem (“POMS”), DI 24510.001 (Residual Functional Capacity).

(J.A. 244).7 According to the POMS, RFC includes not only

formal medical evaluation but “descriptions and observations of

the claimant's restrictions by both medical and non-medical

sources.” (J.A. 245). When multiple physical and/or mental

impairments are present, “the RFC is derived from an assess-

rent of the remaining functional capacity after consideration of

all impairments.” /d.

The inquiry at steps four and five is also the point at which

the Secretary considers pain, nausea, dizziness, side effects of

medication, and other symptoms which “may include descrip-

tions (even your own) of limitations that go beyond the symp-

toms that are important in the diagnosis and treatment of your

medical condition.” 20 C.F.R. §416.945(a); see also 42 U.S.C.

§ 1382c(aX3G)Supp. ['V 1986). The Secretary recognizes that

where “the listed impairment criteria are not met or equaled,

but one or more of the impairments are severe, . . . [ijn assess-

ing symptoms such as pain, as a factor of RFC, the functionally

limiting effects of the symptom can play a significant role.”

SSA, POMS DI 24510.030 (J.A. 256) (emphasis added).*

® The Secretary's brief obfuscates the nature of the RFC assess-

ment, by characterizing it as an assessment of “non-medical” factors.

(Pet. Br. 16, 18, 26, 38). He draws an artificial distinction between

evaluation of a child's “medical factors and evidence alone,” and

“individualized consideration of vocational or similar non-medical

factors (or, therefore of the claimant's RFC)” (Pet. Br. 26) (emphasis

added), erroneously suggesting that RFC is not a medical determina-

tion.

* The Program Operations Manual System is a set of guidelines,

Drombetta v. Sec'y of HHS, 845 F.2d 607, 609 (6th Cir. 1987), for the

state agencies that adjudicate all SSI claims. 42 U.S.C. § 421(a) (1982)

& Supp. [V 1986).

* The breadth and focus on the individual in the RFC analysis here

is critical because, despite the obvious relevance of an impairment's

symptoms, such as pain, unless the exact clinical signs and laboratory

Because of the breadth of the RFC assessment, for whole

classes of impairments, such as mental disorders, the RFC

evaluation is the primary method for assessing disability. See

SSR 85-16.°

Thus it is apparent that, for adults, the individualized RFC

assessment, by realistically accounting for “each claimant's

individual abilities,” Campbell, 461 U.S. at 467, allows for an

appropriately flexible approach for situations that defy “formal

codification” (J.A. 97) or “cookbook adjudication.” It allows for

decisions to be made for claimants with multiple, combined

impairments; claimants with unlisted impairments; and claim-

does not match all of the elements or required proofs of a

findings are present, “the symptom cannot be persuasive (at the third

step) that the Listing is met or equalled.” SSA, POMS DI

24505.01K(D) (J.A. 255):

Id. (emphasis in original).

* SSR 85-16, which excludes “children under 18,” emphasizes the

“importance” and flexibility offered by an RFC assessment of an

adult's mental disorder (West's Soc. Sec. Rpting. Serv. 424-28 (Rul-

ings Supp. 1989). See also 20 C_F_R. § 416.920a(cX3) (RFC evaluation

of mental impairments “unless you are claiming benefits as a disabled

child”). Other regulatory statements show how the RFC inquiry

provides an individualized assessment. especially for mental disor-

ders. See, ¢.g., 3 Fed. Reg. 35038, 35046 (1985) (all limitations

including the side effects of medication must be considered in assess-

ing RFC); id. at 35051 (“Individuals with personality disorders which

_ do not meet or equal the listings would still have a detailed RFC

completed which would lead to a finding of disability in appropriate

cases.”), id. at 35050 (“[Djisability for individuals with [Q's in the

range of 70-79 is more appropriately determined when the individ-

ual's RFC and vocational factors are considered.”).

7

particular listing. It also allows proper recognition of pain, side

effects of medication, or other limitations. As the Secretary

himself has concluded, “the determination of RFC is crucial if

the person does not meet or equal the Listings.” 50 Fed. Reg.

35038, 35042 (1985).

C. Regulatory Scheme—Childhood Disability Evaluations

Instead of the five-step sequential evaluation process, dis-

abled child claimants receive only a three step evaluation. The

RFC evaluation is never done for children, although it is for

adults. (J.A. 74, 86-87). Children can be found eligible only if

they meet or equal the listings of impairments. 20 C.F_R.

$§ 416.924, 416.925. The child listings use the same medical

assumptions and level of severity as the adult listings. 42 Fed.

Reg. 14706 (1977).

The Secretary recognized in his initial promulgation of the

child listings that there would be “children who have an impair-

ment that is not included in the [listing] Appendix,” 42 Fed.

Reg. at 14706 (1977), and that the listings embody only the

most “frequently diagnosed” impairments. /d.; see note 3,

supra, and note 19, infra. Neither the 120-odd adult listings or

the 57 children’s listings can cover the hundreds of discrete

disorders or the almost infinite combinations of impairments

afflicting children.

This listings-only approach, coupled with the exclusion of

functional assessment, was a significant departure from the

early regulatory history of the SSI child disability program, as

embodied in two Disability Insurance Letters issued by SSA

(J.A. 89, 94). See pp. 27-33, infra. The Secretary's current

position constitutes a more restrictive policy concerning “com-

parable severity,” equivale.ce and the relevance of functional

limitations than was adopted at the outset of the SSI program.

See id.

D. Named Plainti‘‘s And Class Members

Brian Zebley initiated this action on July 12, 1983 and was

joined by two intervenors, Joseph Love, Jr. and Evelyn Raushi.

8

Together they represent a certified class of denied child appli-

cants and terminated child beneficiaries. (J.A. 27). The briefs of

the amicus parties—a majority of states and over two dozen

professional medical, disability, and children’s organizations—

further establish that severely disabled children, including

those with impairments such as spina bifida, cystic fibrosis,

Down Syndrome, and muscular dystrophy, have been routinely

rejected for SSI under the listings criteria and denied individu-

alized assessments of functional limitation.

Brian Zebley

Like many children brain damaged at birth, Brian has

always suffered from multiple impairments: congenital brain

damage with spastic right hemiparesis, mental retardation,

developmental delay, eye problems and musculoskeletal

impairments. Zebley, 855 F.2d at 70-71. Although Brian was

initially awarded SSI at age two upon a finding that he met the

mental retardation listing, he was terminated less than two

years later on the grounds that he “no longer met or equaled

the requirements of any section of the Listings of Impairments

at Appendix 1.” Jd. at 71. (See J.A. 41-45).

The Secretary concluded that “Brian Zebley has significant

limitations compared with other children of his age,” including,

at four years of age, the gross motor skills of a 16-19 month old,

spasticity and uncoordination; misjudging of distances and fre-

quent falling; and self-help and perceptual/fine motor skills at

or below 50% of those of a normal child. (J.A. 43-44). Despite

these developmental impairments which, “adjusting for age,

{left} Brian . . . no better off now [at age four] than he was

when benefits were initially awarded in 1980” (J.A. 29), the

Secretary determined that Brian no longer met the childhood

mental retardation listing and terminated his benefits. !°

'” The childhood mental retardation listing requires a delay in a//

developmental skills of “more than one half of the child's chronological

age.” 20 C.F_R. Pt. 404, Subpt. P., App. 1, § 112.05(A). (J.A. 233). At

48 months of age, although Brian showed delay in gross motor and

self-help skills of more than one-half his age, his non-motor skills, like

cognition and language, were in the 36-42 month range. (J.A. 31, 43).

9

The “degree of severity” of impairment of Brian's motor

coordination, that of a one to one-and-a-half year old when he

was four years of age, is deemed irrelevant under the Secre-

tary’s listings-only policy. (J.A. 255). An “assessment of overall

functional impairment” is also explicitly prohibited by the Sec-

retary in multiple impairment cases. SSR 83-19 (J.A. 239);

SSA, POMS DI 24505.015(C) (WJ.A. 251). The district court

found that the Secretary's decision was not supported by sub-

stantial evidence of improvement, but_noted that he could

revisit the case again. (J.A. 34).

Joseph Love, Jr.

Joseph Love, Jr. was ten years old in 1983 when he was

denied SSI benefits despite organic brain syndrome man-

ifested by a psychiatric impairment (a severe adjustment disor-

der with mixed emotional and behavioral disturbances), a

neurological impairment (severe hyperkinesis), and involun-

tary movements with visual/motor misperception. (J.A. 52-53,

56).'! Joseph not only failed first grade three times but also

could not adapt to special education classes, necessitating

home-bound instruction. (J.A. 50). At the time of the ALJ

hearing, he was functioning on a kindergarten level although

he had been in school for four years. These educational failures

had caused him “severe emotional stress.” (J.A. 54).

Because Joseph could undertake some “self-care” activities

(“he help{ed] with the dishes occasionally”) (J. A. 51), he did not

meet all four of the listed criteria for chithood psychosis or

non-psychotie disorders, §§ 112.03, 112.04 WA. 232-33). He

also did not have a complete arrest in development (as opposed

to impaired development) as required by the chronic brain

'! Joseph also was diagnosed as suffering from an attention deficit

disorder and described “as being very impulsive, apprehensive and a

poor learner. He was unable to relate with his peers, control his

aggressions easily or learn.” (J.A. 53). He went to sleep at 2:00 a.m.,

woke at 6:00 a.m., was unable to sit still, and was constantly climbing

on top of things, sliding across the floor, running up and down steps,

getting upset easily, and becoming depressed. (J.A. 50-51).

10

syndrome listing. § 112.02 (J.A. 232). On further appeal, the

district court remanded the case to the Secretary for a new

determination. (J.A. 37).

A psychiatric consultant in the Secretary's national Office of

Disability admitted that Joseph's precise symptoms appear

“fairly often” in both children and adults. (J.A. 85-86). While he

acknowledged that an adult with such symptoms could be

found disabled by an individualized RFC assessment, a child

with the “identical functional symptomatology” would never be

found disabled. (J.A. 86-87).

Evelyn Raushi

Evelyn Raushi was born prematurely in 1974, and was deter-

mined disabled in 1979 based upon a 62 IQ. (J.A. 61). Her

benefits were subsequently terminated as of October, 1981. /d.

Further tests showed Evelyn had a developmental delay of two

years manifested by “emotional immaturity and intellectual

and social impoverishment consistent with [her] development

delay”; “significant latent anxiety”; and, in addition to mental

retardation, diagnoses of “developmental learning disorder”

and “minimal brain dysfunction.” (J.A. 63). Although the Sec-

retary determined that Evelyn was retarded, he found that she

did not suffer from another significant impairment, as required

by listing § 112.05(C). (J.A. 64, 233).

Evelyn's case, however, was remanded to the Secretary for a

new determination as to whether she showed “medical

improvement” (J.A. 36) pursuant to Section 2 of the Social

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

§ 423(f) (Supp. IV 1986), and she was thereafter reinstated.

E. Court Of Appeals Decision

A unanimous Third Circuit panel found the Secretary's

approach to be “inconsistent with the statute in precluding a

\2 Joseph was subsequently found disabled, but only for the penod

after Nov. 15, 1985. That decision is still in litigation.

ll

finding that a child is disabled unless his impairment meets or

equals a listed one.” 855 F.2d at 73-74. The court determined

that “Congress has expressed unambiguously its intent that

‘any’ impairment which meets the statutory standard shall be

qualifying impairment.” /d. at 73. The court reasoned that the

listings, designed to identify only the most severely disabled

claimants for quick, presumptive awards, “do not purport to be

an exhaustive compilation of medical conditions which could

impair functioning to the extent necessary to satisfy the stat-

utory standard for disability,” yet only adults are given the

further opportunity to establish eligibility through an “individ-

ualized assessment of the actwal degree of functional impair-

ments ... .” Jd. (emphasis in original). Because it was the

expressed intention of Congress to allow children to show that

they suffered from “any” impairment of “comparable severity”

to one “which would actually, even if not presumptively, disable

an adult,” the Secretary's regulatory method identifying “only

some comparable impairments” was held to be inadequate. /d.

at 73-74 (emphasis in original).

The court specifically rejected t!ie reasoning in Hinckley v.

Sec’y of HHS, 742 F.2d 19 (1st Cir. 1984), and Powell v. Sch-

weiker, 688 F.2d 1357 (11th Cir. 1982). Powell mistakenly

characterized child claimants as arguing that comparability

required the Secretary to make up childhood analogues for the

adult vocational factors of age, education and work experience.

The real question at issue, however, is whether children are

entitled to an individualized functional assessment of the

impact of their impairments, notwithstanding the inap-

plicability of vocational factors. 855 F.2d at 74. The Third

Circuit also criticized Hinckley’s mistaken reliance upon equiv-

alence as affording functional assessment, noting that the Sec-

retary has stated that the functional consequences of

impairments cannot justify a determination of equivalence.

SSR 83-19. Since the Third Circuit decision, the Secretary's

equivalence regulation has been struck down in Marcus v.

12

Bowen, 696 F. Supp. 364 (N.D. Ill. 1988), appeal pending, No.

89-2717 (7th Cir.), which contains a thorough discussion of the

regulatory history of the Secretary's listings-only policy and

particularly the shortcomings of his equivalence policy. * ;

Rather than “jettison(ing] the entire regulatory frame-

work,” as the Secretary characterizes the decision (Pet. Br.

42), the Court of Appeals retained the regulatory scheme,

remedying only the absence of an assessment of the impact of

functional limitations. In holding that the Secretary must eval-

uate the impact of the child’s impairment and make individual

assessments of the possible disabling effects, the court did not

encroach upon the Secretary's prerogative to devise a standard

against which to assess a child’s residual function capacity. As

Judge Mansmann wrote, “We see no necessity for such an

intrusion upon the Secretary's authority.” 855 F.2d at 75. The

Court of Appeals left the Secretary considerable latitude to

augment his approach to children’s disability to make it truly

comparable to that afforded adults.

SUMMARY OF ARGUMENT

Realistic assessment of functional limitations is the guiding

principle in all disability determinations. The Secretary's

inferior program for evaluating children’s SSI claims is con-

trary to the plain meaning of the SSI statute which commands

that a child be found disabled if he or she suffers from any

impairment of comparable severity to that which would render

an adult disabled. Since adults are individually assessed to

determine their actual residual functional capacity, if they do

not meet one of the specific listings set at high levels of pre-

sumptive disability, it violates this “comparabie severity” stan-

‘3 The Eighth Circuit has ruled in favor of the Secretary, albeit on

the limited ground that the particular listing in question apparently

allowed inquiry into function so as to obviate the need to hold the

Secretary's overall approach to be unlawful. Nash v. Bowen, No.

' 88-2542 (August 10, 1989).

13

dard to stop the inquiry for children once it is determined that

they do not meet one of these listings. The Secretary has

recognized that the listings are designed to screen for common

impairments that can be presumed disabling, and has repeat-

assessing actual functional loss.

The Secretary has explicitly recognized that, by limiting

children to a listings-only test, he is using the “any gainful

activity” test of the widow's disability program, instead of the

“substantial gainful activity” test of the adult disability pro-

gram. Because Congress chose to make children subject to the

more liberal test of the adult program, however, the exclusive

use of the listings for children imposes a level of severity that

exceeds the statutory standard.

The Secretary's current interpretation is not due any special

deference because it was not developed contemporaneously

because the Secretary's current interpretation was never made

known to Congress, it did not give, and could not have given, its

approval to that interpretation through its passage of related

legislation or otherwise. Indeed, the legislative history of the

related legislation relied upon by the Secretary shows that

Congress was dissatisfied with his inaction in implementing the

SSI children’s program, and suggests that Congress endorsed

a more flexible approach that went beyond the listings.

The Secretary's argument that there are no feasible

benchmarks for individually assessing children’s functional

limitations is belied by his own policies and regulations, which

specifically endorse assessment of “age-appropriate activities”

as such a workable standard, as well as by the accepted diag-

nostic and treatment practices of the medical community.

Indeed, both in assessing medical improvement in disabled

children and in determining entitlement to Title II disability

benefits for disabled adults who became disabled when they

were children, the Secretary already explicitly analogizes abil-

l4

ity to work with ability to perform age-appropriate activities

and other “work-like” activities performed by children.

ARGUMENT

I. THE SECRETARY VIOLATES THE “COMPARABLE

SEVERITY” STANDARD OF THE ACT BY DENYING DIS-

ABLED CHILDREN INDIVIDUALIZED ASSESSMENTS

OF THEIR FUNCTIONAL LIMITATIONS.

The holdings of this Court in Campbell, Yuckert and City of

New York make it clear that assessment of functional limita-

tions is to be the guiding theme governing all disability

adjudications. While the Secretary may take steps to ease his

workload by developing methods to deal with certain repetitive

employment questions not unique to the individual, Campbell.

or to weed out cases where the claimant has only a slight

impairment, Yuckert, he has never been permitted to give less

than a full assessment of the difficult question of whether

disability exists. Never has it been suggested that convenience

may outweigh individualized decision-making. Although

may be medically catalogued, “disabilities” can

only be adjudged by examining how a medical condition actu-

ally affects an individual.

While asserting that the listings take into account the

impairment's “impact on development” (Pet. Br. 38), the Secre-

tary nevertheless admits that “regulations focus . . . not on the

individual child’s ability to func*ion as such” (id. 42). He also

admits that, in nis asserted consideration of “impact,” he gives

“no individualized consideration” to RFC or functional limita-

tions but instead makes a “legislative-type assessment” of

impact. (/d. 38). Insofar as impact is considered, then, it is on

the basis of predicting average functional loss from diagnostic

findings.

The reality for disabled children is that the Secretary's pol-

icles have established a listings-only methodology for evaluat-

ing childhood disabilities that, on its face, precludes any fair

ana realistic assessment of the functional impact of childhood

a,

15

impairments on the individual child. As such, this methodology

may not be used to disqualify those who meet the statutory

definition of disability. See Yuckert, 482 U.S. at 158 (O’Conncr,

J., concurring).

A. The Statute Plainiy Envisions An Individualized, Func-

tional Test For Children.

The search for the proper method of evaluating the impair-

ments of children begins with the meaning of § 1614(a)(3)( A) of

the Social Security Act. The same statutory authorization that

gives the Secretary rulemaking authority circumscribes this

authority to prescribing procedures “not inconsistent with the

provisions of this title.” 42 U.S.C. § 405(a), made applicable to

the SSI program by 42 U.S.C. § 1383(d)(1) (1982 and Supp. IV

1986), see Campbell, 461 U.S. at 466. At issue here is a “pure

question of statutory construction for the courts to decide.”

1.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987). The

judiciary is the final authority on issues of statutory con-

struction and must reject administrative constructions which

are contrary to clear Congressional intent. 480 U.S. at 447-4"

In discerning the plzin meaning of this statute, the court mu

look to the “express language” of the statute at issue as well as

to the “language and desig. ot the statute as a whole.” Beth-

esda Hospital Ass'n v. Bowen, 485 U.S. 399, __., 108 S.Ct.

1255, 1258 (1988) (Kennedy, J.) (rejecting “strained interpreta-

tion [of the Social Security Act] offered by the Secretary”).

“The Social Security Act defines ‘disability in terms of tne

effect a physical or mental impairment has on a person's ability

to function . . . .” Campbell, 461 U.S. at 459-60. Functional

loss is the talisman of our ‘ ‘isability law. By looking tc the

ability to perform substantial gainful activity, given the-per-

son's “medically determinable physical or mental impa..ment,”

42 U.S.C. §1382e(a)(3)(A), the law takes a “functional

approach to determining the effects of medical impairments.”

Yuckert, 482 U.S. at 146, 482 U.S. at '56 (Blackmun, J.,

dissenting). Instead of an approach baseu upon a finite number

of diagnostic categories, and the average functional loss

16

thereby created, the disability program is meant to provide a

“realistic, individual assessment of each claimant's ability to

engage in substantial gainful activity.” City of New York, 476

U.S. at 474,"

The evaluation of the actual performance abilities of adult

disability claimants (the RFC assessment) is undertaken at the

fourth and fifth steps of the sequential evaluation process, after

it has been determined inappropriate to award benefits based

solely on the listings. /d. at 471. This focus upon functional

capacity was recently reinforced by § 4 of the Social Security

Disability Benefits Reform Act of 1984, which requires that

“the combined effect of the impairments shall be considered

throughout the disability determination process.” 42 U.S.C. —

§ 1382c(aX(3XG) (Supp. IV 1986) (emphasis added).

In Campbell, this Cc urt interpreted the statute as “specify-

ing consideration of each individual's condition,” with the stat-

utory scheme as a whole anticipating “individualized

determinations” for each claimant. 461 U.S. at 458. As Camp-

bell makes clear, the point at which the Secretary “must assess

each claimant's individual abilities [i.e., RFC]” comes after the

lie*ngs evaluation. /d. at 467. There is simply no authority for

tve position of the Secretary that an inquiry as to whether a

person meets or equals a listed impairment satisfies the stat-

ute’ »all for individualized assessment. (Pet. Br. 41-42). To the

contrary, the outcome of City of New York, 476 U.S. at 474-75

n.5, refutes the Secretary's attempt to cast the listings stage as

In contrast, Congress adopted the “average man” standard for

veterans d.sability benefits. 38 U.S.C. § 502 (a1) (impairment “suf-

ficient to render it impossible for the average person to follow a

substantially gainful occupation”). The “average man” standard has

never been applied under the Social Security Act, as courts have

uniformly held that each claim requires individualized adjudication.

See, e.g., Franklin v. Sec’y of Health, Education and Welfare, 393

F.2d 640, 642 (2d Cir. 1968); Dillon v. Celebrezze, 345 F.2d 755, 757

(4th Cir. 1965). The Secretary has fully subscribed to the principle of

individualized adjudication. E.g., 43 Fed. Reg. 9291 (1978).

a

17

his vehicle for rendering individualized assessments of func-

tional limitations.

When Congress recognized the extraordinary needs of poor,

disabled children by including them in the new SSI disability

law, it provided for the same individualized, functional assess-

ments to apply to children as were applied to adults. No sepa-

rate program or alternative methods were legislated for

disabled children. Rather, the same approach was provided by

the express linking of children to the definition of disability for

adults in the new SSI law, 42 U.S.C. § 1382e(a)(3)(A), a defini-

tion also employed in the pre-existing Title I] program for

disabled adult workers, and for adult children of deceased,

disabled or retired workers, claiming a childhood onset of

disability. 42 U.S.C. §§ 423(d)(1)(A), 402(d)(1)(C) (1982). © See

Yuckert, 482 U.S. at 140.

When Congress enacted a “comparable severity” standard

for children in § 1382c(a)(3)(A), the use of the term “severity”

referred to the elaboration of the disability definition found in

subsection (B), namely, impairments of such “severity” that

they preclude “previous work” and “any other kind of substan-

tial gainful activity.” 42 U.S.C. § 1382¢c(aX(3\B). That is the

“severity” to which Congress intended children’s impairments

to be comparable. Therefore, the Secretary's suggestion (Pet.

Br. 29) that subsection (B) does not apply to children, and

purposely excludes them, is contrary to the plain meaning of

the statute. ~

Congress, by utilizing a term (“comparable”) that it had

employed in similar benefit programs to establish near-identi-

cal treatment, insured both equity and uniformity of process

‘5 Congress stated that the “definition of disability . . . used in the

disability insurance program established under Title II of the Social

Security Act would be generally applicable to disabled . . . people

under age 65” in the SSI program. H.R. Rep. No. 231, 92d Sess. Ist

Sess., reprinted in 1972 U.S. Code, Cong. Admin. News 4989, 5233.

18

for children. The term “comparable” has been discussed by this

Court on at least three occasions.

Title XIX of the Social Security Act (Medicaid) has required

that the medically needy be treated in a manner “comparable”

to the categorically needy. 42 U.S.C. § 1396a(a)(10) (amended

1981), and (a)(17). See Atkins v. Rivera, 477 U.S. 154 (1986);

Schweiker v. Hogan, 457 U.S. 569 (1982). In both cases, the

Court recognized that Congress’ requirement of comparability

mandated near identity of treatment. While two groups may be

situated in such a way that exactly congruent treatment may be

afforded be as close to identical as possible. Thus, the Court in

Schweiker v. Hogan speaks of the comparability clause of 42

U.S.C. § 1396a(a)(17) as requiring identical treatment for the

aged, blind, disabled and dependent. 457 U.S. at 573 n.6. The

Court cited with approval four court of appeals decisions, all of

which interpreted “comparable” to require that the identical

rule of eligibility be applied to the categorically needy. /d. at

587 n.28.

This notion of near-identical treatment already was a conce,‘t

that Congress found useful in mandating equal treatment for

groups that, by their very nature, have certain features that

defy exactly the same treatment. Thus, when Congress

instructed the Secretary in 1972 to evaluate the severity of the

impairments of children in a manner comparable to adults, it is

reasonable to assume that it had in mind the same kind of near-

identical treatment that it had established seven years earlier

in a different title of the same Act.

Similarly, in Wheeler v. Barrera, 417 U.S. 402 (1974), the

Court construed a regulation requiring “comparable treat-

ment” for special education children in public and private

schools. Justice Blackmun there observed that, at the very

least, “comparability” could not countenance a clearly “inferior

program.” /d. at 422 n.17. He added that, to achieve “com-

parability” among the two classes of beneficiary children, a

program would have “to equalize the level and quality of ser-

vices offered.” Jd. at 425.'*

Finally, by adding for children the modifier “an:” before

“medically determinable physical or mental impairment of

comparable severity,” Congress has expressed unambiguously

its intent that “any” impairment which meets the statutory

standard shal! be found disabling. The Secretary's method of

identifying only some comparable impairments does not sat-

that children be afforded the opportunity to demonstrate they

suffer from “any” impairment of “comparable severity” to one

which would actually, even if not presumptively, disable an

adult, the regulatory method for children must include the

method offered to adults, i.e., an opportunity for assessing

actual degree of functional impairment.

B. The Childhood Listings-Only Method Does Not Embody

The Functional Approach To Disability Evaluation

Required By The Statute.

As the sole means of evaluating disability, the listings have

ish ings." First, any set of listings ie

to be complete given the complexities of the human organism,

the ever changing nature of modern society and the imprac-

ticality of listing rare disorders. For example, AIDS and new-

born drug addiction were virtually unknown 15 years ago; now

'® The Secretary would define “comparable” to mean “‘permitting

or inviting comparison(,} often in ore or two salient points only.’”

(Pet. Br. 24). But individualized assessment is the salient feature of

the program. Respondents do not assert that absolutely identical

treatment must be afforded. However, given the “crucial” and deter-

minative role that the Secretary has acknowledged the RFC has in

adult adjudications, its exclusion for children belies the rhetoric that

'? This is not to say that we reject their utility as a streamlining

device; rather, we object to their use as the sole determinant of

lisability.

A graphic example of the limitations of the listings in evaluat-

ing rare childhood afflictions is seen in Wilkinson v. Bowen, 847

F.2d 660 (11th Cir. 1987) (per curiam), following Powell v.

approach in Wilkinson and similar cases “as a reasonable

implementation of the statutory standard” (Pet. Br. 17-18) is

contrary to the remedial purpose of the Act.

o a

i i aM

21

The Secretary has himself repeatedly acknowledged the

serious limitations of the listings-only approach, as well as the

need to go beyond the listings to provide realistic functional

assessments. The regulatory history of the listings establishes

their intrinsic limitations with regard to individual assessment

of ft nctional restrictions.

As originally published, the listings were thought to be

“medical guides” intended to “facilitate identification of clear-

cut cases,” leaving “[cjonditions that fall short of the severity of

those described in the guides [to be] evaluated in terms of

whether in fact they prevent the applicant from engaging in

any substantial gainful activity.” Administration of Social

Security Disability insurance Program, 1959: Hearings

Before the Subcommittee on the Administration of the Social

Security Laws of the House Comm. on Ways and Means, 86th

Cong., Ist Sess. 334 (1959) (hereinafter, “1959 Disability

Insurance Hearings”).

In 1959, Dr. William Roemmich of SSA stated:

I would like to emphasize that the guides are not now,

and were at no time in the operation, - ~ “ahi

all applicants into allowances and denials. .

snl the! specific medical listings and guides i operat

ng anal ___ te diner coos, rather than

in

the more common conditions. They do not show

pale ding son or So hey mc

Id. at 342.'* The drafters of the listings never intended them to

establish “cookbook adjudication” for claimants. /d. at 85. Mar-

cus, 696 F. Supp. at 375.

'® Associate Director Arthur E. Hess also testified that the listings

were set at a higher level of severity than ultimately called for by the

Act, in order to make presumptive allowances. Failure to meet the

listings was not to lead to disallowance. /d. at 350.

22

From the point when the medical guides were published as

the listings, 33 Fed. Reg. 11741 (1968), to the present, the

limited screening role they were intended to have and their

high level of severity has not changed. See Marcus, 696 F.Supp.

at 375 & n.11. Indeed, the Secretary has repeatedly declared

his own belief that the listings are not mechanisms to decide

whether a person is disabled, and has assumed that only when

one goes beyond the listings to an RFC assessment will a

realistic determination of disability be obtained. Jd. at 375-76

(citing such repeated regulatory statements). '* The Secretary

thus has adopted respondents position by declaring that “the

determination of RFC is crucial if the person does not meet or

equal the Listings.” 50 Fed. Reg. at 35042 (1985).

When the Secretary belatedly promulgated his Part B child

listings, he placed them in the conceptual framework of the

adult listings established almost two decades earlier. Just as

Congress was assured in 1959 that the adult listings for dis-

ability insurance described only “the more common disabling

conditions” and did “not show all possible disabling conditions

.. . the combining effect of different impairments,” 1959

Disability Insurance Hearings 342, the Secretary in 1977

acknowledged the limitations of the new childhood listings, by

19 See, e.g., 44 Fed. Reg. 18178 (1979) (listings but “one element” in

the determination process); 45 Fed. Reg. 55576 (1980) (response to

comments that medical equivalence standards were too restrictive).

In response to a criticism in 1979 of the narrow multiple sclerosis

listing for failing to consider overall impact, the Secretary acknowl-

edged:

(Mlultiple sclerosis, a disease with variable and multiple man-

ifestations, TALIA a ab _& com-

inthe evaluation proces, he erate cate mats he

impairment under other rules. . . .

44 Fed. Reg. 18176.

23

admitting that they only “evaluate the more common impair-

ments” and acknowledging the existence of “children who have

an impairment that is not included in the Appendix.” 42 Fed.

Reg. at 14706.2°

The limited, “screening” role of the listings and their facial

inadequacy in addressing all possible impairments would not

be objectionable if, like adults, children received the RFC

assessment of “each claimant's individual abilities,” Campbell,

461 U.S. at 467, or even if the listings stage could somehow

fully take into account all the functional limitations of “any”

impairment “which would actually, even if not presumptively,

disable an adult.” Zebley, 855 F.2d at 73. The Secretary's pol-

icies, however, foreclose both. He precludes an RFC assess-

ment on the mistaken assumption that this can only be relevant

and workable for those in the labor market, see Section III,

infra. He admits that his listings “focus . . . not on the individ-

ual child’s ability to function as such .. . ,” and for the most

part oer “no individualized consideration” of functional limita-

tions. (Pet. Br. 38, 42). See also 42 Fed. Reg. 14706 (listings

interpret “severity [of disability] in medical rather than func-

tional terms”).2! The Secretary can make no claim greater than

2° Not only do children with “uncommon” impairments find their

way to benefits blocked, Report of the National Commission on

Orphan Diseases, xiii (DHHS 1989) (surveying 5,000 rare diseases),

but, indeed, even those with relatively common childhood impair-

ments such as Down Syndrome, Tourette Syndrome, and autism do

not have their impairments listed. H. Fox & A. Gearney, Disabled

Children’s Access to SSI and Medicaid Benefits 55 (1988) (here-

inafter, “Fox Report”) (“More often than not. . . the disability criteria

exclude young children or simply ignore them.”). The Fox Report and

the National Commission Report, both funded by the Secretary, have

been lodged with the Clerk of the Court.

“1 A more detailed picture of the Secretary's shortcomings in eval-

uating functional limitations is provided in the Fox Report 58-59 (“The

disability criteria do not consider a child's functional limitations, such

as limitations in the ability to perform age-appropriate daily

activities like school and play . . . . The listing. . . does not address

the functional limitations caused by an impairment in any uniform

and consistent manner. . . .”).

24

that “some of the criteria in Part B” assess functional capacity

where “relevant.” (Pet. Br. 42) (emphasis added).™

At least initially there was a possibility that, under a broad

reading of the “equals” to the Listings concept, functional

limitations could be assessed. See 1974 DIL (J.A. 97). However,

even this avenue was later foreclosed by SSR 83-19. Contrary

to the assertion of flexibility (Pet. Br. 40), since that Ruling was

adopted it has been “incorrect to consider whether the listing is

equaled on the basis of an assessment of overall functional

impairment . . . . The functional consequences of the impair-

ments (i.e. RFC), irrespective of their nature or extent, cannot

justify a determination of equivalence.” SSR 83-19 (J.A.

239-40) (emphasis in original).23

22 The Secretary thus implies that all other functional incapacity is

irrelevant in assessing “severity.” This position is unfounded since the

RFC assessment is applied to all adults who do not satisfy the

listings. The Secretary's contention that he considers functional inca-

pacity in the childhood listings wherever relevant also ignores the

near-total absence of any reference to pain (which frequently results

in functional limitations) in the listed criteria, despite the command of

Section 3(a)(1) of the Social Security Disability Benefits Reform Act

of 1984, 42 U.S.C. § 1382c(a(3)(G) (Supp. IV 1986), to consider pain.

23 When this restrictive equivalence policy is joined to a listings

system which includes only discrete disorders, the result for children

is:

(t]he failure of the disability determination system to take into

account the severel disabling impect of multiple impairments

.. . . [E]}ven some fairly common m iple i ts, such as

ven developmental delays, had not been

addressed uately. The significance of this problem was

underscored by unpublished data from. . . the American Acad-

emy of Pediatrics Committee on Children with Disabilities

showing] that increasing numbers of children are py with

omnlaal Eniialaamaiiiine Ged euny taudbee ap coon as ve or

more di diagnoses.

Fox Report 54, 66 (disability criteria restrict access [to SSI] of chil-

dren with multiple impairments). This inherent deficiency of the

listings was acknowledged at the 1959 Disability Insurance Hear-

ings 342.

25

C. The Secretary's Listings-Only Approach Imposes A Stan-

dard Stricter Than Called For By Congress.

Had Congress intended to make children subject to a more

stringent standard it easily could have done so. The Title II

program for Disabled Widows and Widowers is just such a

strict eligibility program, awarding benefits only to those who

are precluded from performing “any gainful activity.” 42

U.S.C. §423(d)(2)(B). See H.R. Conf. Rep. No. 1030, 90th

Cong., lst Sess., reprinted in 1967 U.S. Code, Cong. Admin.

News 3179, 3197 (“more restrictive definition of disability”).

The Secretary has long had regulations that require widows

and widowers to meet or equal the listings if they are to be

considered disabled. 20 C.F.R. § 404.1526; see also Yiickert,

482 U.S. at 164 n.3 (Blackmun, J., dissenting). ;

The Secretary has explicitly recognized that by limiting both

widows and children to a listings-only test, he imipes#s the “any

— activity” threshold of severity:

The level of severity of an impairment which a title II

widow(er) or a title XVI child must meet or equal to be

determined to be under a disability is that which is consid-

ered under the regulations to be sufficient to preclude

the Liatings), oo diatinguished (i.e., must meet or equal

Seeinfal searvite distinguished SGA A. The concept of

=, however, is used only in setting the

reuse level of severity of the iapaivenant in the Listing

of Impairments and not otherwise.

SSA, POMS DI 00401.336 (J.A. 259) (emphasis in original).2*

There can be no doubt that the listings embody a level of

severity that precludes “any gainful activity” and not just

“substantial gainful activity.” Campbell, 461 U.S. at 460;

Tolany v. Heckler, 756 F.2d 268, 270-71 (2d Cir. 1985). The

exclusive use of the listings, then, not only denies functional

24 See also 50 Fed. Reg. 50118, 50120 (1985), contrasting general

termination of benefits standard—ability “to engage in SGA”—with

that of widow(er)s and SSI disabled chi! iren, where SSA “need only

show the capacity to engage in gainful activity.”

26

assessments but requires a level of severity higher than that

legislated by Congress. Had Congress intended for children to

meet such a standard, it could have required children to

be found disabled only if they had impairments of “comparable

severity to a disabled widow.” Although Congress set a stan-

dard that compares children’s impairments to those of disabled

adults, and not disabled widows, the Secretary has distorted

this congressional language to make children conform to the

much stricter standard. However, the Secretary is not free to

substitute his own judgment for that of Congress. Congress

made a deliberate choice and must be presumed to have known

what it was doing. Schweiker v. Hogan, 457 U.S. at 587.

In sum, the Secretary's listings-only approach for determin-

ing disability fails to meet the express intention of Congress

that children be given the opportunity to show that they suffer

from “any” impairment of “comparable severity” to one which

would actually, even if not presumptively, disable an adult.

li. THE SECRETARY'S POLICY OF DENYING INDIVIDU-

ALIZED FUNCTIONAL ASSESSMENTS FOR IMPAIRED

CHILDREN HAS NOT BEEN CONSISTENT OR CONTEM-

PORANEOUS, NOR HAS IT BEEN APPROVED BY CON-

GRESS.

The Secretary has argued that his implementation of

§ 1614(a\(3) has been consistent and clear from the earliest

days of the SSI program. From this assertion, he makes two

interrelated arguments. First, he argues that his interpreta-

tion was contemporaneous and has been consistent, and there-

fore it is entitled to considerable deference. Second, he argues

that Congress knw of and approved his interpretation either

(1) when it enacted § 501 of the Unemployment Compensation

Amendments of 1976, Pub.L. No. 94-566, 90 Stat. 2667, 2685,

which ordered the Secretary, inter alia, to promulgate long-

delayed criteria for adjudicating the disability of children or, in

the alternative, (2) through its silence. These arguments are

baseless; the Secretary's position has been anything but consis-

tent and, under established principles of statutory con-

27

tent and, under established principles of statutory con-

struction, it is not entitled to special deference. Further, given

these inconsistencies, Congress could not have been aware of.

let alone approved, the rigid listings-only policy that ev: ntually

evolved. Indeed, much of the policy was either nonexis ent or

not available to Congress, making it impossible for Congress to

have known that it was approving the Secretary's policies as

they have now come to exist.

A. The Secretary Has Been Inconsistent In His Interpreta-

tion Of The Statute

There are at least four major areas where the Secretary Nas

changed his policy or taken an inconsistent position. First, and

perhaps most importantly, the Secretary at first adopted, and

then rejected, the need for a working definition of the “com-

parable severity” standard. Second, the Secretary has taken

an ambiguous and shifting position on the need to evaluate

functional limitations for children. Third, the Secretary has

taken the position, most fully articulated in this litigation, that

adults, is not a medical determination, thereby contradicting

his own regulation (20 C.F.R. § 416.945). Fourth, the Secretary

has reversed himself on the importance of the role of equiv-

alence in the disability adjudication process, stripping it of the

flexibility it once had, as applied to both child and adult claim-

ants.

l. Inconsistency On The Need For A Working Defini-

tion Of “Comparable Severity”

At the inception of the SSI program, the Secretary issued

the two policy statements (“Disability Insurance Letters” or

“DILs”) that were to be the basis for deciding childhood dis-

ability claims. (J.A. 89, 94). The first DIL stated that “disability

in children must be defined in terms of the primary activity in

which they engage, namely growth and development, the pro-

cess of maturation.” (J.A. 90).

ments and also promised a regulatory definition of the phrase

“impairment cf comparable severity” (J.A. 95), noting that

“(n Jot all children’s impairments will lend themselves to formal

codification.” (J.A. 97). His reeognition of the need for a work-

By 1977, however, when he promulgated the long-awaited

final regulations, the Secretary had reversed himself. One

searches the regulations in vain ‘or any workable definition of

comparable severity. The only mention of comparability comes

not in the regulations themselves but in the preamble, where

the Secretary explained that he had tried to equalize the aver-

age level of severity in the adult listings and the child listings.”

42 Fed. Reg. 14705 (1977). Howeve:, far from putting children

on an equal footing with adult claimants, such equalization

simply prevented “transitional problems,” i.e., a child wo met

Id. Totally abandoned was the notion that children would be

adjudicated using a standard comparable to that by which an

adult is adjudicated.

2. Inconsistency On The Relevance Of Functional Evi-

dence

The Secretary has exhibited an ambiguous and contradic-

tery approach toward the evaluation of functional lin.itation in

children. However, the question of whether an impairment is

25 Indeed, several of the 57 child listings were taken verbatim from

the adult listing, or were modified oniy by a word or two. E.g.,

$§ 102.02, 102.08, 107.5, 107.11, 111.02 and 111.065.

disabling is a question of functional limitation.2° Consistent

with this overriding principle, the Secretary's initial policy, as

embodied in the 1974 DIL, emphasized the need to seek out

“adverse factors of learning and behavior” to see whether there

developmental progression (i.e., impairments which did not

“lend themselves to formal codification”) in addition to those

contained in the listings. (J.A. 97-98). It also directed

adjudicators to look to “growth—increase in size and matura-

tion of physieal and functional characteristics, learning, mas-

__ tering basic skills and emotional and social development” (J. A.

96), all measures of functional limitation. These instructions

clearly acknowledged the need to ascertain how the ability to

function in primary activities for adults and children could be

determined so that comparisons could be made. The overall

goal, then, was to compare the impact of the impairment on the

child’s life with that of the impact of a sim/lar impairment upon

an adult’s life. (J.A. 96). This was clearly a functional approach.

But by 1977, the Secretary had retreated from his earlier

position. The preamble to the final regulations asserts that

severity must be assessed in “medical rather than functional

terms” and that consideration of “[djevelopmenta! needs .

such as counseling, special education, trairing, rehabilitation,

guidance, etc. are not within the scope of the law.” 42 Fed. Reg.

at 14706.

The Secretary sounds a similar note in his brief, imposing an

explicit methodology that relies on “medical factors alone”

26 Medical professionals can diagnose the impairment and even

predict some of the kinds of likely limitations. However, human

experience is varied. A medical condition that ‘vould leave one person

confined to a wheelchair aid unable to work might not lead to any

discernible functiona! limitation in the case of President Roosevelt.

Thus, “[t}he Social Security Act defines ‘disability’ in terms of the

effect a physical or mental impairment has on a person’s ability to

function. . . .” Campbell, 461 U.S. at 459-60. Only impaired ability

to function results in disability.

30

(Pet. Br. 38), precluding evidence “on the individual child's

ability to function as such” (id. 42), and denying the workability

and even the legality of evaluating children in terms of “age

activities.” (Jd. 44). Having abandoned a broad

approach that sought to gather as much evidence of functional

limitation as practically possible, since 1977 the Secretary has

adhered to a policy that considers functional limitation only

where explicitly allowed by a handful of individual tistings and

ther only in the crabbed terms allowed by the particular list-

ing. (/d. 42).

3. Inconsistency On The Nature Of The RFC Assess-

ment

A related inconsistency has been the Secretary's artificial

distinction between “medical” and functional evidence and his

denial that his inquiry into an adult's residual functional capac-

ity is a medical determination, in order to support his conten-

tion that such an inquiry is inappropriate for children.*’ Such a

distinction was also made in the Secretary's 1977 rulemaking,

where he attempted to justify his listings-only approach on the

grounds that he was obligated to look only at medical factors,

which he equated with the listings, as if no other medical

evidence weve relevant. 42 Fed. Reg. at 14706. Such a position

is markedly different from that taken in the earlier Disability

Insurance Letters, which called for a full development of evi-

dence beyond the listings.

Cast aside in the Secretary's later policies were + very first

instructions of September 1973 emphasizing that “abnor-

malities” in function cannot always be fully demonstrated by

clinical and laboratory diagnostic techniques (J. A. 97-98), thus

necessitating inclusion of “adverse factors of learning and

27 The Secretary attempts to distinguish what he terms the “medi-

eal” evidence called for in the listings and all other evidence of

disability, which is usually referred to in pejorative terms, ¢.9.,

“amorphous . . . unspecified non-medical factors.” (Pet. Br. 15).

31

behavior.” (/d.). In the 1973 DIL, the Secretary defined medi-

cal factors broadly to include “a child's activities, behavioral

ustment, and school achievement.” (J.A. 91). See also 1974

DIL W.A. 97-98). In 1977, the Secretary reversed himself,

excluding functional impact indicators such as the need for

special education as “not within the scope of the law.” 42 Fed.

Reg. 14706. Thus, Joseph Love, a maladjusted ten year old

with organic brain syndrome, who failed first grade three

times and was removed from a special education class (J.A. 50),

would, under the earlier policies, have had his educational

failures and need for special education assessed; however,

under the later listings-only policy he could not have his need

and evidence of behavioral disorders taken into account.”

By imputing a skewed, overly restrictive meaning to the

term “medical,” contrary to established medical thought and

practice, see Am. Br. of A.M.A. and Amer. Acad. of Pediatrics

et al., as well as his own original interpretation of the term, the

Secretary has foreclosed realistic assessments of children. His

methodology has guaranteed that, however dysfunctional a

child was, such dysfunction could not be taken into account,

while similar dysfunction would be taken into account in adult

disability determinations at the RFC stage. City of New York,

476 U.S. at 471.

The Secretary's litigation position on the nature of the adult

RFC assessment is even inconsistent with his own regulations,

which state that “(rjesidual functional capacity is a medical

assessment,” 20 C.F.R. §416.945(a), that also allows the con-

sideration of testimony regarding symptoms beyond those nec-

essary for diagnosis. Although limitations such as pain and

28 Since his brief to this Court was written, the Secretary has again

changed his position on the relevance of the need for “special educa-

tion.” Now, in his proposed rulemaking, the Secretary has endorsed

inquiry into this need and declared “special education” evidence to be

“medical evidence” rather than “supplemental data.” 54 Fed. Reg.

33242 (1989).

other subjective complaints are not part of the listings, they

are decidedly part of the overail medical assessment of dis-

ability. 42 U.S.C. § 1382c(aX3)(F) (Supp. IV 1986). Indeed, if

they were not so assessable, it is difficult to see how the Secretary

could take them into account, given the statutory mandate for

medical determinations, 42 U.S.C. § 1382e(aX(3C).

The Secretary's third inconsistency, then, is in considering

such limitations for adults in the admittedly “medical” deter-

mination of RFC, while asserting that he is legally precluded

from doing so for children on the grounds that such determina-

tions are, for them, “non-medical.” (Pet. Br. 15, 28, 33, 38); see

also 43 Fed. Reg. 55349 (1978) (“medical considerations alone”

used for SSI child claimants); 45 Fed. Reg. 55570-71 (1980)

(children “to be assessed only in medical terms’).

4. Inconsistent Interpretation Of “Equivalence”

The final inconsistency that precludes deference to the Sec-

retary’s listings-only approach is the dramatic change in the

role of equivalence in childhood disability determinations.

impairment was to be taken ‘nto account to determine whether

the combination of impairments equalled a listed impairment.

(Id.).

"ss flexible approach was later jettisoned when the Secre-

tary adopted SSR 83-19.2% That Ruling rejected the earlier

2° Beginning almost immediately, “equivalence” findings began to

drop precipitously, to the extent that such a finding became an

anomaly. Comm. on Ways and Means, 10 1st Cong., !st Sess., Back.

ground Material and Data on Programs Within the Jursdiction of

the Committee on Ways and Means, Sec. II, Table 2 (Comm. Print

1989).

formulations, stating that “it is incorrect to consider whether

the listing is equalled on the basis of an assessment of overall

extent, cannot justify a determination of equivalence.” SSR

83-19 (J.A. 239-40) (emphasis in original). Thus, there can

never be an “equals” decision based on an individualized assess-

ment of functional limitations, however “severe” the limita-

tions, for either an unlisted impairment or a combination of

B. The Secretary's Current Interpretation Is Not Due Any

Special Deference Because Of His Inconsistencies.

Because the Secretary's interpretation of the statutory

provision at issue has changed over the years, his construction

loses the deference to which it would otherwise be entitled as

an agency's interpretation of legislation it is charged with

implementing. /.N.S. v. Cardoza-Fonseca, 480 U.S. at 446

n.30; Watt v. Alaska, 451 U.S. 259, 272-73 (1981); General

Electric Co. v. Gilbert, 4229 U.S. 125, 143 (1976). The Court has

on more than one occasion declined to grant any special defe r-

ence to the HHS (or HEW) Secretary's interpretation of a

statute he was chargea with implementing, precisely because

his interpretation had “evolved” over time. See Bowen v. Amer-

icam Hospital Ass'n, 476 U.S. 610, 645-46 & n.34, (1986)

(“AHA”) (plurality opinion); Southeastern Community Col-

lege v. Davis, 442 ').S. 397, 411 n.11 (1979)

An agency’s current interpretation of a statute need not be

directly contrary to its prior construction to deprive the later

construction of the deference normally afforded. Admin-

istrative interpretations which have “evolved” over time also

lose the deference to which they would otherwise be entitled.

See, e.g., AHA, 476 U.S. at 645-46; American Mining Con-

gress v. EPA, 824 F.2d 1177, 1179 (D.C. Cir. 1987).

An agency which has taken a “somewhat inconsistent pos-

ture” will not be given any special deference with respect to its

_—————————

ot

current interpretation of a statute. See Morton v. Ruiz, 415

U.S. 199, 237 (1974). This includes situations where the

agency's interpretation of a given statutory provision changed

from a broad one to a more narrow one, see, ¢.g., American

Mining Congress, 824 F.2d at 1181-82, or has changed from a

narrow one to a broader one, see, e.g., Barnett v. Weinberger,

818 F.2d 953, 960-61 (D.C. Cir. 1987). It also includes situations

where the agency's interpretation has been “erratic.” See Car-

doza-Fonseca, 480 U.S. at 447 n.30.

Ultimately, the question be asked is not whether there has

been a total reversal in administrative construction, which is

in regulations or in its litigation posture, constitutes a “signifi-

cant change” from that taken by the agency previously. Com-

pare Fed. Elec. Comm'n v. Democratic Senatorial Campaign

Comm., 454 U.S. 27, 38 (1981), and EEOC v. Associated Dry

Goods Corp., 449 U.S. 590, 600 n.17 (1981), with Barnett v.

Weinberger, 818 F.2d at 961-62 (administrative interpretation

of statutory term “custodial care” was changed “in a significant

way,” and therefore did “not merit a substantial degree of

respect”).

Under these standards, the inconsistency in the Secretary's

various positions deprives his current position of any special

deference that it would otherwise be due. These inconsisten-

cies are at least as significant as the inconsistencies which this

Court has noted in refusing to grant special deference to vari-

ous agencies’ later statutory constructions. For example, in

Southeastern Community College, the Court refused to give

any special deference to the Secretary's construction of § 504 of

the Rehabilitation Act of 1973 as authorizing him to promulgate

regulations requiring recipients of federal funds to undertake

because for the first three years after the statute was enacted,

“HEW [now HHS] maintained the position that Congress had

not intended any regulations to be issued.” 442 U.S. at 412

n. 11. ‘The Secretary had never issued regulations contradicting

35

the regulations at issue, but had simply taken the position,

earlier on, that no regulations were authorized.

In this case, the Secretary originally saw the statute as

requiring something beyond a listings-only approach (J.A. 95,

97) and, as we shall see, infra, pp. 37-38, even “led Congress to

believe” that this was his interpretation, Morton v. Ruiz, 415

U.S. at 237. After Congress ordered him to publish some

standards for assessing children’s SSI disability claims, the

Secretary responded only with the listings, asserting that this

was all that was required. This hardly constitutes the “consis-

tent” approach from “the outset of the SSI program” suggested

by the Secretary in his brief. (Pet. Br. 17). Rather, as in

Southeastern Community College, the fact that the agency has

“altered its stand. . . . substantially diminishes the deference

to be given to [its] present interpretation of the statute.” 442

U.S. at 412 n.11.

In AHA, 476 U.S. at 645-46, a plurality of the Court found

inappropriate the granting of any special deference to regula-

tions designed to insure hospitals’ provision of medical care to

severely handicapped newborns, because the Secretary's reg-

ulations, while not directly inconsistent with previous con-

structions, had “evolved” over a two year period. Similarly, in

his 1974 DIL WJ.A. 94), the Secretary recognized that the

provisions for children’s disability “will require not only the

development of additional more specific criteria, but also a

definition of the phrase ‘impairment of comparable severity,’”

thus clearly implying that “comparable severity” could not be

fully addressed by the listings alone. Nevertheless, in his

subsequent promulgation of “criteria” for assessing childhood

disability claims, he adopted a listings-only approach, thereby

rejecting by omission the need for any definition of “impair-

ment of comparable severity” going beyond the listings. As in

AHA, 476 U.S. at 646, such inconsistency deprives the Secre-

tary’s current position of any special deference.

Finally, in Cardoza-Fonseca, this Court rejected the Gov-

ernment’s position that two different statutory standards,

36

applicable to aliens’ requests for relief from deportation on the

basis of threatened persecution, were identical. In so doing,

the Court rejected the Government's contention that its posi-

tion was entitled to heightened deference as an administrative

construction, because of the “inconsistency of the positions the

BIA (Board of Immigration Appeais} has taken through the

years,” noting that “(t]he BIA has answered the question... .

in at least three ways.” 480 U.S. at 446-47 n.30. Asin Cardoza-

Fonseca, the Secretary's construction of the “comparable

severity” provision “has not consistently agreed with” his cur-

rent litigation position.

C. Congress Has Not Approved The Secretary's Con-

struction: Rather Its Action Suggests Disapproval.

The Secretary argues that Congress has expressed its

“approval” of his current interpretation of the statute by the

requirement, in § 501(b) of the Unemployment Compensation

Amendments of 1976, that the Secretary promulgate criteria to

be employed in determining disability under 42 U.S.C.

§ 1382c(a)(3). However, this Court has specifically noted that

“‘the views of a subsequent Congress form a hazardous basis

for inferring the intent of an earlier one.’” Jefferson County

Pharmaceutical Ass’n, Inc. v. Abbott Laboratories, 460 U.S.

150, 165 n.27 (1983). For the Court to find congressional

approval, there must be full knowledge by the entire Congress

of the administrative construction of the earlier statute at the

time the second act was passed, and there must have been some

affirmative indication of approval by the subsequent Congress.

TVA v. Hill, 437 U.S. 153, 192 (1978). No such approval has

ever been given by Congress to the narrow listings-only inter-

pretation, nor was Congress aware of the Secretary's inter-

pretation at any time that it was considering making, or in fact

made, amendments to the original legislation. Under these

circumstances, congressional inaction is of little if any signifi-

cance as a factor supporting the Secretary's interpretation. See

SEC v. Sloan, 436 U.S. 103, 120-21 (1978).

37

1. The 1976 UCA Did Not Ratify The Secretary's Cur-

rent Policy.

Far from constituting “express approval” of existing SSA

policy, the legislative history of the Unemployment Compensa-

tion Amendments of 1976 shows that Congress was extremely

dissatisfied with the Secretary's approach to the SSI children’s

disability program, and with his inaction. Contrary to the

Secretary's representations (Pet. Br. 30), both Congress and

SSA recognized that the situation was chaotic because the

Secretary had failed to publish any detailed guidelines for the

adjudication of childhood disability. A blue ribbon “Study

Group” recommended legislation to create “a more specific

definition for disability of a child,” that would take into account

the developmental nature of many childhood impairments.

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. 21 (1976)

(hereinafter, “1976 Hearings”). Commissioner Cardwell told

Congress that it was important to remedy the difficulty and

inequity that had been experienced by children. /d.

Ultimately, the Secretary told Congress that he agreed with

the Study Group’s concern, but denied the need for legislation.

The two DILs (J.A. 89, 94), the Secretary claimed to Congress,

formed the basis tor clearing up the difficulty and unfairness

that had arisen from the lack of coordination. 1976 Hearings at

22. Congress relied upon these two policy statements in pass-

ing the UCA. See Supplemental Security Income Program:

Hearings Before the Subcomm. on Public Assistance of the

House Comm. on Ways and Means, 94th Cong., Ist Sess.

781-82 (1975).

The two DILs called for a review that was much closer to the

individualized determination enjoyed by adults. The Sep-

tember 1973 DIL, which drew on the experience gained in the

Title II Child Disability program (J.A. 89), stated that “dis-

ability in children must be defined in terms of the primary

activity in which they engage, namely growth and develop-

38

_ ment, the process of maturation” (J.A. 90), and therefore called

for the gathering of evidence of functional limitations. (J.A. 91).

As noted above the 1974 DIL also promised a definition of

comparability. (J.A. 95).

The Secretary argued in 1976 that legislation was unneces-

sary, but Congress, surveying the SSI program, was not

pleased. Two years after the program began, Listings of

Impairments for children had not yet even been published, nor

had any work been done to further define “comparable sever-

ity” or to explain how an equivalence determination was to be

made.

Utilizing the language of the DILs, Representative Mikva of

the Ways and Means Committee proposed an amendment to

H.R. 8911 to mandate publication of criteria for determining

disability:

The amendment mandates that this criteria take into

account not only the medical development of the child but

also the child’s social, educational, and personal develop-

ment... .

(T]he assessment should refer to the impact of the child's

handicap on his ability to function successfully within age-

appropriate expectations. The child’s functional capacity

within the areas of learning, language, self-help skills,

mobility, and social skills are decidedly more meaningful in

determining both the severity of his impairment and his

developmental potential.

In addition to the development of specific and standard-

ized disability criteria for children, guidelines should be

established in order to obtain the existent information,

such as school records and developmental assessments,

required to evaluate eff>ctively a child's functional capac-

ity.

39

122 Cong. Rec. 27855 (1976). The amendment passed easily

and went to the Senate.

In the same session, Senator Hathaway, a member of the

Senate Finance Committee, described the similar Senate

amendment that eventually was adopted, using language very

similar to the DILs:

This test of comparable severity for a child’s disability is

required in current law. Like the test for determining the

disability of an adult, a disability is not determined solely

on medical grounds but also i an evaluation of the

impact of the disability on the person's abilities . . . . The

assessment, rather, should refer to the impact of the child's

icap on his ability to function successfully within age

capacity

within the areas of apy Bern ma self-help skills,

y more meaningful in

122 Cong. Rec. 34026 (1976). Further, Senator Hathaway

viewed medical criteria expansively:

Medical criteria used in the broad sense of the total

health development of the child could indeed provide the

basis for determining the comparable severity of a child's

disability. Medical criteria which are restrictively drawn

... are not going to provide a definition of disability

relevant to the person under the ge of 18. A test of

com severity is needed and is : 2quired in the pres-

ent definition of disability for such persons. .. .

® The provision in H.R. 8911 stated:

(e) The Secretary shall, within 120 days after the enactment of

this subsection, pe & nee criteria (including

medical, social, personal ional, and other criteria) for the

determination of ¢ disability in the case of persons who have not

attained the age of 18. .

94th Cong., 2d Sess., 122 Cong. Rec. 27853 (1976).

40

Id. Senator Hathaway certainly did not endorse a listings-only

approach. Senator Bentsen, also a member of the Finance

Committee, criticized the Secretary's failure even to notice the

SSI children’s program. 122 Cong. Rec. 33301 (1976). The

Senate version of the bill was enacted.*!

The basis of the Secretary's argument for congressional

approval ignores this legislative history and focuses on the

Senate report accompanying the UCA. S. Rep. No.-1265, 94th

Cong., 2d Sess. 24, reprinted in 1976 U.S. Code, Cong. Admin.

News 5997, 6018. That report did indeed note that the Secre-

tary had a regulation that called for children to meet a listing or

satisfy a broad equivalency test. Jd. The report, however, was

critical of the Secretary, calling his existing guidelines inade-

quate. Id. The report's observation that, while SSA had issued

several statements on the program, no specific guidelines had

been sent out for the state agencies to follow, id., is a strong

indication that the Senate expected more than a listings-only

program, as the 1974 DIL already contained listings adapted

for children. (J.A. 104-14). Rather than approving the Secre-

tary’s regulation, the Senate report focused on the Secretary's

tion. Promised but undelivered policies on the definition

comparable severity (J.A. 95), and the “compilation of data on

‘developmental milestones’” (J.A. 98), were what Congress

wanted.

At a minimum, in order to support a conclusion that Con-

gress has approved an administrative construction of a statute,

31 Senator Bentsen assured his coileagues that the House saw no

functional difference between the two provisions, 122 Cong. Rec.

33301-02, the House Conference Committee did not think the two

versions dissimilar enough to warrant comment. H.R. Conf. Rep.

* No. 1745, 94th Cong., 2d Sess. 22, reprinted in 1976 U.S. Code,

Cong. Admin. News 6032, 6046. Thus, Congress was of one mind that

the Secretary's performance was deficient and that individualized

determinations based on the impact of impairments were appropriate

under the existing comparable severity standard. i

41

the entire Congress must have been made fully aware of that

construction and of the issue of its possible inconsistency with

the statutory provision, when it was making other amend-

ments. Zuber v. Allen, 396 U.S. 168, 185 n.21, 193 (1969); Bod

Jones University v. United States, 461 U.S. 574, 599-601

(1983); United States v. Rutherford, 442 U.S. 544, 554 n.10

(1979). The Senate report cited by the Secretary did not men-

tion whether the Secretary's regulations could be construed as

limiting children to an evaluation under the listings, or the

issue of whether, if they could be so construed, they might be

inconsistent with the statute; nor did it express any opinion

whatsoever on the wisdom of those regulations. From this one

report, no general congressional awareness of the Secretary's

restrictive construction can be inferred. See Sloan, 436 U.S. at

120-21. See also Blanchard v. Bergeron, _ — U.S. ——, 109

S.Ct. 939, 947 (1989) (Sealia, J., concurring).

A more fundamental problem with the Secretary's conten-

tion of “general congressional awareness” of his construction of

the statute lies in its evolution over time. In 1976, the Secre-

tary’s only published statement on this issue, as paraphrased in

the Senate Finance Committee report, was 20 C.F.R. § 416.904

(1975), which referred to satisfaction of the listings or medical

equivalence to a listed impairment. However, as noted above,

the DILs clearly stated that more than just a listings approach

32 Furthermore, even if the Senate Finance Committee report

could be said to provide some evidence of limited congressional

awareness in 1976 of the Secretary's developing construction of the

statute, it is impermissible co infer from this one report that the

entire Congress was aware of this construction and .ts possible incon-

sistency with the statute. As explained in Sloan:

et te that the Committee Report did ize and

Commission's practice, rensny ¢ sort of

ad coal edad tute.

436 U.S. at 121. Compare Yuckert, 482 U.S. At 151-52 (explicit

endorsement in all three legislative reports).

42

would be utilized and that equivalence would be applied fiex-

bly.

the UCA in 1976, it could not have been aware of the

Secretary's later snift in policy that precluded equivalency

based on functional limitations.

dren receive realistic determinations and wanted the Secretary

to end the confusion by promulgating reguiations that made

good on his promises and assurances. The language used by the

provision’s prime sponsors, Representative Mikva and Sen-

ators Bentsen and Hathaway, goes well beyond a listings-only

approach, as did SSA's early policy.

2. Congress Has Not Approved The Secretary +

Current Interpretation Through Inaction.

sity, 461 U.S. at 600-01. However, at a minimum, it must be

shown that Congress, although repeatedly having been

43

informed of the agency's construction and having taken no

action thereon, at least considered the propriety of the specific

administrative sory construr*ion at issue.“

Whatever “oversight” can be said generally to have existed

over the Social Security Administration's programs, Congress

as a whole has not addressed itself to the particular interpreta-

tion at issue. Indeed, the children’s SSI disability program has

been marked by relative invisibility to a Congress that has

been primarily concerned with the much larger, and more

controversial, adult Social Security programs.

Ill. THE SECRETARY ALREADY HAS DEVELOPED

WORKABLE STANDARDS TO INSTITUTE INDIVIDU-

ALIZEL FUNCTIONAL ASSESSMENTS OF CHIL-

DREN.

The Secretary repeatediy asse \s that a functional assess-

ment of impairments comparable to the RFC evaluation given

adults is impossible because children are too young to be com-

pared to those in the work force. He argues, in particular, that

“there is no analogous benchmark (to the ability-to-work crite-

rion] that can feasibly be adopted for use with children” such as

“ability to engage in age-appropriate activities.” (Pet. Br. 44).

However, his past policy pronouncements, his policy of per-

forming RFC assessments in the Title II Child Disability insur-

ance program, his critena for determining when to terminate

SSI benefits for children, 20 C.F.R. § 416.994, and his recent

revisions to the children’s mental impairment listings all belie

that contention.

33 Such was clearly the case in Day, where the Court noted that

1973 DIL WA. 90). Thus the Secretary recognized the rele-

vance, indeed the necessity, of a functional test geared to the

Second, although the Secretary argues strenuously that

RFC determinations for children are impossible, since 1956 he

has administered the Title II Child Disability insurance benefit

under which benefits are paid to children of dead,

disabled or retired workers, who become disabled in chiidhood.

42 U.S.C. § 402(d) (1982 & Supp. I'V 1986); 20C.F.R. § 404.350.

This program evaluates disability in the childhood years using

the same definition of disability and five-step sequential evalua-

tion process as that used for disabled adult workers. 42 U.S.C.

§ 402(d1G) (Supp. IV 1986); 20 C.F.R. § 404.151 1(a). See

also Allegra v. Bowen, 670 F. Supp. 405, 467 (E.D.N.Y. 1987)

(the “Secretary uses a five-step sequence to evaluate (such)

disability claims”). This broad functional assessment comports

with Congress’ anticipation that such functional indicators as

“school and other records” of children would be utilized in these

45

evaluations. S. Rep. No. 2133, 84th Cong., 2d Sess., reprinted

in 1956 U.S. Code, Cong. Admin. News 3877, 3882.

and with “no foundation in the . _ statute” (Pet. Br. 44), his

own SSI regulations expressly employ this term as the child's

equivalent of an adult's “ability to work.” In regulations pro-

mulgated pursuant to § 2 of the Social Security Disability Bene-

fits Reform Act of 1984, 42 U.S.C. § 423(f), the Secretary sets

out his standard for determining whether a beneficiary has

ceased to be disabled. 20 C.F.R. § 416.994. In the subsection

governing SSI children’s cases, the Secretary states that he

first determines whether “medical improvement” exists and, if

so, whether this “is related to your ability to work (i.e., your

ability to perform age-appropriate activities).” § 416.994(c)

(emphasis added). The regulation further provides that, when

medical improvement occurs, and the severity of the prior

impairment(s) no longer meets or equals the listings, “we wil!

find that the medical improvement was related to your ability to

work (i.e., your ability to perform age-appropriate activities ).”

§ 416.994(c)(1\ii). In short, the Secretary explicitly recognizes

that his review policies for SSI child beneficiaries assess the

equivalent of “work” abilities, specifically equating them to

“age-appropriate activities”; yet he argues vociferously that

such formulations are totally inappropriate, unworkable and

with “no foundation in the . . . statute.” (Pet. Br. 44).

In addition, the newly proposed “Mental Disorders in Chil-

dren” listings, 54 Fe? Reg. 33238 (1989), further undercut the

argument that it is not “feasible” to use age-appropriate

activity as a viable “benchmark.” (Pet. Br. 43-44). In this

proposal, the Secretary specifically accepts the ability to

engage in age-appropriate activity as one of the primary deter.

minants of disability. 54 Fed. Reg. at 34242.

Further, in his newly proposed listings the Secretary has

taken a much more functional approach. As part of that ap-

proach, the Secretary plans to use deficiencies in concentra-

tion, persistence or pace resulting in “frequent failure to com-

plete work-like tasks in a timely manner” as one of four indicia

of functional impairment. See proposed § 112.02(B\(2)(d), 54

Fed. Reg. at 33244. In addition, the Secretary has decided that

because Personality Disorders “do not usually manifest them-

selves until later in childhood,” 54 Fed. weg. at 33240, all such

children should be evaluated under the adult listing, § 12.08.

One ‘the four frnctional indicia in that listing is “deterioration

or decompensation in work or work-like settings.” § 12.08

(B\(4). The Secretary obviously intends, then, to examine a

child's performance in a “work-like setting.” Thus, the new

proposed regulations are patently inconsistent with the Secre-

“ary's position that children are so divorced from the work force

that he cannot make RFC determinations for children or draw

any useful analogies between children and disabled adults.

(Pet. Br. 44).

Finally, functional assessments have long been part of the

accepted diagnostic and treatment procedures in the medical

community. Because functional assessments of the impact of a

child's developmental, medical and behavior problems upon

day-to-day activities are so critical to treatment, the medical

community has made them an essential and “workable” part of

medical practice. See Am. Br. of Amer. Acad. of Child &

Adolescent Psychiatry, Amer. Psychiatric Ass'n et al.; Am. Br.

of A.M.A., Amer. Acad. of Pediatrics et al.

The Secretary has at his disposal not only the practices of his

own agency, but also the expertise of the established medical

community. Thus the purported lack of available “benchmarks”

APPENDIX

—<_

Dt i i Rll

i eee ek

1.

APPENDIX

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

oo lage § 13882c(aX(3 XA) ides in per-

at ne me pt mo a Me

is unable substantial activity y

sity determinable or mental

which can be expected to result in death or

expected to last for a continu-

Peet te fea be

of a child under the age of 18, if he suffers from an

determinable

shguiani or tnantel tmpairment

2. Section 1614(aX(3)(F) of the Social Security Act

codified at 42 U.S.C. § 1382c(aX3F) (Supp. IV 1986)

provides:

Ind whether an individual's physical or men-

or

be the of under this section, the Secre-

severe com combination of impairments, the combined

mae Bad of jap ———— oe. shall ‘be considerec

determination process.

3. 20 aaa pain provides:

tiow we determine disability for a child under age 18.

We will find that a child under age 18 is disabled if he or

(a) Isnot _~ any substantial gainful activity; and

(b) Hasa me yin ae

ocean Se whic 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

2a

i SO

(3) In determined by us to be medically

ee

4. 20C.F.R. §416.920a(c)\(3) provides:

Bratustion of mentel impatemente.

5. 20C.F.R. 416.925(a) provides in part:

Purpose of the Listing of Impairments.

The Listing of Impairments describes, for each of the

body , impairments which are considered

severe to prevent a person from doing any gain-

ful activity.

6. 20C.F.R. §416.945(a) provides in part:

Your residual functional capacity.

7. 20C.F.R. §416.994(c) provides:

Disabled persons under age 18 (children).

medical improvement is related to your ability to

work (i.e., your ability to perform age-appropriate

activities) . If medical improvement related to your

ability to work has not occurred and no exception

your benefits will continue. Even where medi-

improvement related to ability to work has

occurred or an exception appiies (see (c)(4) of

this section for most cases we can

find that you are no disabled, we must also show,

based on current evidence, that you no

To Engage In Gainful Activity: Title I

Whdoe Wideus ae Survicins Diverced Sppase/Title

XVI Child Under Age 18

of a level of severity to

an individual from in any

activity. An for title II disabled , wid-

ower's, or spouse's benefits or title

As in the case of a title Il worker or CDB [Child

i Benefits] i or a title XVI claimant

18 or older, a title II widow(er), or title XVI child

work demonstrates ability to in SGA is

not under a The level of severity of an impair

mert which a title II widow(er) or a title XVI child must

meet or equal to be determined to be under a disability

ale