# Respondents Brief — Sullivan v. Zebley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0469%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1990 - **Citation:** 493 U.S. 521 ## Text ; 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0469%3A07. Public record. Not legal advice.