Amicus Curiae Brief — Sullivan v. Zebley

No. 88-1377

IN THE —_

———e———

(2

r

)

October Term, 1989

LOUIS W. SULLIVAN, Secretary of Health

and Human Services,

Petitioner

»

BRIAN ZEBLEY, et al.?

Respondents

On Writ of Certiorari to the Uvited States

Court of Appeals for the Third Circuit

BRIEF OF THE NATIONAL ORGANIZATION

OF SOCIAL SECURITY CLAIMANTS’

REPRESENTATIVES AS AMICUS CURIAE

IN SUPPORT OF THE RESPONDENTS

PROF. ROBERT E. RA'NS

The Dickinson School of Law

150 South College Street

Carlisle, Pennsylvania 17013

(717) 243-4611

Counsel of Record

NANCY G. SHOR

National Organization of

Social Security

Claimants’ Repcesentatives

19 East Central Avenue

Pearl River, New York 10965

PACTAAD PRESS / LEGAL DIVISION, 1617 LF. BOULEVARD, PHILA, PA 19103 (215) 563-9000

= \ v7

Page

TABLE OF AUTHORITIES .................... ii

INTEREST OF AMICUS CURIAE NOSSCR..... 1

SUMMARY OF ARGUMENT................... 2

eet atickcéuccéscbecsecooc< 5

'. THE SECRETARY'S SSI REGULATIONS

RESULT IN THE DENIAL OF SSI TO MANY

C. Leon Gable Dida cine ceniinadeee

. THE REASONS ASSERTED BY THE SEC-

RETARY FOR HIS DISPARATE TREAT-

MENT OF DISABLED CHILDREN ARE

NEITHER LAWFUL NOR RATIONAL NOR

MANDATED BY PRAGMATIC CONCERNS .

BOP By GOED ccccccccesesccccececs A-13

sion, August 3, 1989............. A-22

TABLE OF AUTHORITIES

CASES: Page

Atkins v. Rivera, 477 U.S. 154 (1986) ..........«.

Burnside on behalf of Burnside v. Bowen, 845 F.2d

587 (Sth Cir. 1988)... .....- 6 cece ne ce eeee 6

Ferguson v. Schweiker, 765 F.2d 31 (ord Cir.

BGG) . . ccccccccccccccccccccccscecesesecess 10

Foster v. Heckler, 780 F.2d 1125 (4th Cir. 1986).. 10

Gilliland v. Heckler, 786 F.2d 178 (3rd Cir. 1986). 11

Heckler v. Day, 467 U.S. 104 (1984)............- 12

Hidalgo v. Bowen, 822 F.2d 294 (2nd Cir. 1987).. 11

MacGregor v. Bowen, 786 F.2d 1050 (11th Cir.

SOGED . cccccccccceccccccesseceenesennnene il

Marcus v. Bowen, 696 F. Supp. 364 (N.D. Ii.

BODE) . co cccccccccccccccccccescocesesesceses 18

Polaski v. Heckler, 751 F.2d 943 (8th Cir. 1984).. 10

Richardson v. Perales, 402 U.S. 389 (1971) ...... 22

Wills v. Secretary of Health and Human Services,

686 F. Supp. 171 (W.D. Mich. 1987)......... 13

Zebley v. Heckler, 642 F. Supp. 220 (E.D. Pa.

BOBED . o ccccccccccccccecccccecesoccessess 21-22

STATUTES:

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

Tit. I, 42 U.S.C. §401 et seq. (1982 & Supp. IV

suse 42 U.S.C.§405(g) .....--- 6-06 + 22

§$223(d) (5) (A), 42 U S.C. $423(d) (S) (A). 9

Tit. XVI, 42 U.S.C. $1381 et seq. (1982 &

Supp. IV 19%6):

§§1601, 1602, 42 U.S.C. §§1381, 138lz.... 5

TABLE OF AUTHORITIES — (Continued)

STATUTES — (Continued): Page

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

(A)

EE SELES 5

$1614(a) (3) (G), 42 U.S.C. $1382c(a) (3)

EU iekececccccacéccccecece, 9

Tit. XIX, 42 U.S.C. $1396 et seq. (1982 &

Supp. IV (1986):

$1902, 42 U.S.C. $1396(a) (10) (A) 6

REGULATIONS AND RULINGS:

20 C.F.R., Part 404, Subpart P,

Ph eeSSsesccccecccccccceece passim

20 C.F.R. $404.350 ........................ 16

eS 7

20 C.F.R. §416.924 ............ 6, 11, 15, 16, 17

CC 11

SO CPR. G416.945 ............ 0.0555... 7

rg 6

20 C.F.R. $416.1148....................... 6

40 CPR. $416.1165 ....................... 6

20 CFR. $416.18S1 ........................ 6

20 C-F.R. $416.2001....................... 6

Social Security Ruling 83-19........... 8, 11, 18

PROPOSED RULE:

Federal Register, Vol. 54, No. 155, August 14,

1989, pp. 33238 ef seg. ................... 20

No. 88-1377

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

LOUIS W. SULLIVAN, Secretary of Health

and Human Services,

Petitioner

Vv.

BRIAN ZEBLEY, et al.,

Respondents

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF OF THE NATIONAL ORGANIZATION

OF SOCIAL SECURITY CLAIMANTS’

REPRESENTATIVES AS AMICUS CURIAE

IN SUPPORT OF THE RESPONDENTS

INTEREST OF AMICUS CURIAE NOSSCR

The National Organization of Social Security Clai-

mants’ Representatives (NOSSCR) is a non-profit cor-

poration. While most of our members are attorneys in

private practice, others work in programs which provide

free legal services to the poor. Our members regularly

represent people claiming disability benefits in adminis-

trative proceedings before the Social Security Adm.x‘s-

tration of the U.S. Department of Health and Human

Services (DHHS). Our members also file actions in

federal court against the Secretary of DHHS (“the

Secretary”) appealing the final administrative denial of

1

2

clients’ claims for such benefits. These disability bene-

fits have been provided by the Congress through two

separate but interrelated programs: Social Security Dis-

ability Insurance Benefits under Title II of the Social

Security Act and Supplemental Security Income (SSI)

under Title XVI of the Social Security Act. This case

involves a special sub-group of claimants for SSI: indi-

gent, disabled chi!4ren.

Unfortunately the complexities of the qualifications

for SSI, the labyrinthine nature of the administrative

and the frequent intransigence of DHHS —

all of which are vividly demonstrated in this case —

virtually require legal representation for these children.

Moreover, the parents of these claimants, themselves

indigent, are often ill-equipped from many standpoints

to pursue their children’s claims or even to aid their legai

representatives in a meaningful way.

This brief is filed in a representational capacity on

behalf of these special clients who, by virtue of their

minority, indigency and disability, cannot speak for

themselves. Our purpose is to draw to this Court's

attention our nationwide experience that, notwithstand-

ing its protestations, DHHS does not grant SSI benefits

to indigent children suffering from impairments of

“comparable severity” to those of adults who are granted

benefits, despite the clear statutory mandate that SSI

benefits be granted to such children. Further, this result

is compelled by the regulations before the Court which,

on their face, violate the Social Security Act.

SUMMARY OF ARGUMENT

Although the Congress has mandated that the De-

partment of Health and Human Services grant Supple-

mental Security Income to impoverished children with

impairments of comparable severity to those of adults

granted benefits, the Secretary of DHHS has adopted

regulations which compel a contrary result in many

-

3

instances. The child who is denied SSI often suffers the

further adverse consequence of ineligibility for Medical

Assistance even if such assistance would ameliorate the

grants them SSI as of their eighteenth (18th) birthday

4

pending. In many of these cases the Secretary grants

SSI benefits effective the day of the claimant's eigh-

teenth (18th) birthday. NOSSCR sets forth to this Court

three examples of this arbitrary result of the challenged

regulatory scheme. Younger children likewise suffer

from the Secretary’s illegally stricter treatment of them.

There is no justification for the Secrctary’s disparate

treatment of children. Ignoring overall functional limi-

tations of children who do not meet or equal a Listing

necessarily results in the denial of claims which would

be granted if the disabled individual were an adult. The

Listings are not, and cannot be, comprehensive. They

cannot determine the functional impaci on all children

of all disabling impairments. The Secretary argues that

because children do not normally work, he cannot

measure their functional capacity against any bench-

mark. Yet he acknowledges elsewhere that for children,

disability is the impact of impairments on physical,

mental and emotional growth and development. He is

not, as he suggests, unable to make this determination

for children on an individual basis. Indeed in one of the

cases NOSSCR cites to this Court, that of Leon Gable,

the Secretary determined a child to be functionally

disabled at age thirteen (13), but because he found that

child not to meet or equal a Listing, he refused to pay the

child SSI.

It is no answer to suggest, as the Secretary does,

that the courts should fill in any gaps in the Listings on

an ad hoc basis on judicial review, by judicially con-

structing new and better Listings. To effectuate the

Statutory mandate that children be treated in a manner

comparable to aduits, the Secretary must be ordered to

use comparable methodology in children’s cases as in

adults’ cases. Otherwise indigent and disabled children

will continue to be denied the SSI benefits created and

intended for them by Congress.

5

come (SSI) Program is arbitrary, capricious and

manifestly contrary to the enabling statute. In October

1972, Congress enacted Title XVI of the Social Security

Act “esta\’'shing a national program to provide supple-

and are determined . . . to be eligible on the basis of . . .

income and resources.” P.L. 92-603, $§ 1601, 1602, 42

U.S.C. §§ 1381, 1381a. The SSI program specifically

covers needy disabled children as well as adults:

An individual shall be considered to be disabled for

which has lasted or can be expected to last for a

continuous period of nor less than twelve months

(or, in the case of a child under the age of 18, if he

suffers from any medically determinabie physical or

mental impairment of comparable severity). (Em-

P.L. 92-603, § 1614(a) (3) (A), 42 U.S.C. § 1382c(a) (3)

(A). The grant of SSI benefits to a needy disabled person

in not only important for the limited federal

assistance! provided (currently $368.00/month maxi-

1. States may provide a supplement to the federal payment.

For example, Pennsylvania currently adds $32.40 per month for a

combined maximum total of $400.40 per month. In some cases

State supplements are mandatory, in other cases they are optional.

je yl 3

Ss tTh.

i

4

ae

i

NOTES (Continued)

See 20 C.F.R. § 416.2001.

2. There are complicated rules by which part of the parents’

imcome is “ucemed” to be a child's, resulting in a reduction or loss

416.1851. Hence SSI is only available to a disabled child whose

family is indigent.

3. Indeed, it has been held that SSI is not available to an

indigent child with pancreatic cystic fibrosis even though he needs

federal benefits for preventative medication and treatment, where

of SSI benefits. See 20 C.F.R. §§ 416.1147, 416.1148, 416.1165,

Cir. 1988).

7

fein ay

it Hi Hi ae

dig tatty (| lait

‘ali ia 14) i Hl i Hi (!

A aE

(Heleva) CURE YY

4. Appendix A to this brief is a Table provided by the Secretary

to the Congress setting forth this data.

unrelated impairments, the medical findings of the

combined impairments will be compared to the

findings of the listed impairment most similar to the

individual’s most severe impairment. The functional

consequences of the impairments (i.e, RFC), irre-

spective of their nature of extent, cannot justify a

determination of equivalence. (Emphasis in origi-

nal).

Social Security Ruling 83-19. Joint Appendix 236, 239-

240.

The Secretary argues that:

Nor can it credibly be maintained that the

Secretary's regulations are arbitrary and capricious.

pact.on ability to do age-appropriate activities where

those are gerrt.ane to particular impairments

In other the considerations that respondents

impairment on an adult's ability to work. (Emphasis

in original).

Brief for the Petitioner, p. 18. This is extremely mislead-

ing. It begs the question. Of course the Listings occa-

sionally mention the functional consequences of impair-

ments. But if an adult’s impairments do not meet or

equal one of the Listings, the Secretary then assesses his

overall residual functional capacity. For a child this

assessment is precluded by the Secretary's own inter-

pretation quoted above.

9

Furthermore, the courts have impused upon the Secre-

tary the duty in adult SSI cases to consider a variety of

factors not addressed by the Listing of Impairments.

Two examples are the evaluation of disabling effects of

pain and the “treating physician's rule.” Section 223(d)

(5) (A) of the Social Security Act provides, in relevant

part:

An individual's statement as to pain or other

symptoms shall not alone be conclusive evidence of

disability as defined in this section; there must be

SE aes oe ee ee

acceptable clinical or laboratory

stein Gath cae Ge ances a @ ented

i psychological

reasonably be expected to produce the pain or other

symptoms alleged and which, when considered with

all evidence required to be furnished under this

OR ne me ee pe eee

his physician as to the intensity and persistence of

such pain or other symptoms which may reasonably

be accepted as consistent with the medical signs

and findings), would lead to a conclusion that the

tissue) must be considered in reaching a conclusion

as to whether the individual is under a disability.‘

42 U.S.C. § 423 (d) (5S) (A). Nevertheless, the Adult

ae do not treat pain in any comprehensive

manner,® and the Childhood Listings do not specifically

5. This statutory provision is made applicable to SSI claims by

42 U.S.C. § 1382e(a) (3) (G).

6. Sections 1.05C and 7.16A of the Listings of Impairments for

adults contain pain as one elemen. of each Listing. There is nothing

comparable in the parallel Listing of Impairments for children.

10

address pain at all. In order to fill this gap for adults, the

courts have superimposed various rules regarding the

evaluation of pain to effect this statutory mandate. The

precedent in the Third Circuit is illustrative, requiring:

. (1) that subjective complaints of pain be

that subjective pain “may support a claim for dis-

ability benefits,” Birtel, 441 F.2d at 1195, and “may

contrary medical evidence. Green v. Schweiker, 749

F.2d 1066, 1070 (3d Cir. 1984); Smith, 637 F.2d at

Ferguson v. Schweiker, 765 F.2d 31,37 (3rd Cir. 1985).’

No comparable rules can be applied in claims for SSI for

children because under the Secretary's challenged reg-

ulations disabling pain is simply not relevant.

Likewise, in aduit disability claims, the courts have

long enunciated the “treating physician rule” to the

effect that:

. . « the expert opinion of a claimant's treating

physician regarding his “medical disability, i.e. di-

agnosis and nature and degree of impairment, is .. .

NOTES (Continued)

Compare Part A and Part B of 20 C.F.R. Part 404, Subpart P,

Appendix 1, set forth in the Joint Appendix pp. 115-235.

7. Accord Polaski v. Heckler 751 F.2d 943, 948-950 (8th Cir.

1984); Foster v. Heckler, 780 F.2d 1125, 1129 (4th Cir. 1986).

11

binding on the fact-finder unless controverted by

substantial evidence.” Schisler v. Heckler, 787 F.2d

76, 81 (2d Cir. 1986).

Hidalgo v. Bowen, 822 F.2d 294, 296-7 (2nd Cir. 1987).*

The circuit courts have further adopted a “corolla: y”

to the treating physician's rule, as follows:

A corollary to the treating physician rule is that ihe

opinion of a non-examining doctor by itself cannot

e~nstitute the contrary substantial evidence re-

quired to override the treating physician's diagnosis.

See Havas, 804 F.2d at 786; Strickland v. Harris,

615 F.2d 1103, 1109 (Sth Cir. 1980); coae e v.

Secretary of !lealth, Education and Welfare, 492

F.2d 905, 907-08 (4th Cir 1974): Landess v. Wein-

berger, 490 F.2d 1187, 1190 (8th Cir. 1974); Mefforz

v. Gardner, 383 F.2d 748, 759 (6th Cir. 1967).

Id. at 297. Largely because the Secretary's analysis of

SSI claims for children ends with the issue of whether a

child meets or equals a Listing, the Secretary applies the

converse of the “treating physician rule” in children’s

cases. 20 C.F.R. §416.926. As clearly set forth in Social

Security Ruling 83-19:

Decisions of equivalence are the responsibility of a

physician designated by the Secretary. In most

instances, the designated physician is a physician in

the State agency. A medical advisor at a hearing or a

member of the Appeals Council's (AC) medical

support staff (including inedical consultan‘s) may

also make the physician's decision in the determi-

nation of medical equivalence.

As with any other medical opinion concerning im-

pairment severity for titles II and XVI disability

8. Accord Gilliland v. Heckler, 786 F.2d 178, 184 (3rd Cir.

1986); MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986).

i2

purposes, judgments of the examining physician are

not controlling on the issue of equivalence. In every

instance, the decision as to equivalence is to be

made by a program physician based upon the indi-

vidual medical findings in the particular case.

In our practices, NOSSCR members repeatedly see

that the inevitable effect of the Secretary’s challenged

regulation is to deny indigent disabled children SSI —

disabilities are of “comparable severity” to those of adults

who would be granted benefits. This can best be seen in

those cases in which a child turns eighteen (18) years

13

A. Lisa Wills

One of the few reported court decisions involving

this scenario is that of Lisa Wills. In Wills v. Secretary of

Health and Human Services, the district court stated

that the issue presented was whether Lisa Wills, then

nineteen (19) years of age, suffered from problems

which “were sufficiently disabling to entitle Lisa to SSI

before her eighteenth birthday.” 686 F. Supp. 171, 172

(W.D. Mich. 1987). The court noted that:

Lisa became eighteen during the ac ninistrative

pendency of her SSI application. She | «s awarded

benefits as an adult commencing on her birthday.

That decision is not before the court.

Id. at 172, n.1. One unfamiliar with the Secretary's

regulations might wonder what had befallen Lisa on her

eighteenth birthday to render her condition so disabling

as to be recognized as such by the Secretary. The simple

answer is that all that befell Lisa was her eighteenth

birthday and the application of the more flexible adult

SSI regulations. In fact Lisa had suffered since infancy

from a rare genetic enzyme defect which had caused

mild retardation and central nervous system defect

contributing to learning and benavioral difficulties. Jd. at

172.

Lisa Wills was fortunate in that the reviewing court

found that there was no substantial evidence to support

the Secretary’s finding that she did not meet a Listing as

a child. The court therefore reversed the Secretary's

final administrative decision denying her berefits. Jd. at

176. Nevertheless her case demonstrates that, as the

Secretary interprets and enforces his regulations, a child

who is denied children’s SSI may have the exact impair-

ments which cause the Secretary to grant ber adult SSI

whea she reaches the age of eighteen (18).

Lisa Wills’ case is not an isolated example. Again

and again we see similar situations of disabled children

denied SSI benefits until their eighteenth birthday

14

(thereby frustrating the very purpose of the SSI chil-

dren’s program) and then granted SSI benefits as of

their eighteenth birthday with no change in their im-

pairments. Even for the few comparatively fortunate

children like Lisa Wilis who ultimately prevail in federal

court, the Secretary’s inflexible and arbitrary regulations

mean the denial of SSI benefits during the critical period

that they were intended to be received and often the

consequent denial of Medical Assistance during that

period.

B. Steven Martinez

Many disabled individuals 2nd their families give up

along the way, frustrated by the Secretary’s seemingly

interminable procedures and stymied by the double

standard which the Secretary denies to this Court that

be applies. The case of Steven D. Martinez exemplifies

the Secretary’s actual practice.'° Steven’s mother filed

an application for children’s SSI Lenefits for Steven in

early May 1985 alleging that he was disabled. Steven

was then seventeen (17) years old. He suffered from

severe bilateral sensorineural hearing loss and congen-

ital abnormality of the right hand with severe 'oss of grip

strength and absence of the right thumb and fourth and

fifth fingers. In addition, he had received a penetrating

injury to his rectum and bladder which necessitated

surgery and a temporary colostomy. Steveu’s claim was

denied initially and on reconsideration, and his mother

requested a hearing before an administrative law judge.

In June 1986, over thirteen (13) months after Steven’s

mother filed his claim, the administrative law judge

issued a decision denying it.

On appeal, the Secretary acting through the Appeals

Council remanded the case “for additional evaluation

because the claimant had attained age eighteen (18)

before the date of the decision.” In October 1987, almost

10. Appendix B to this brief is a reproduced copy of the final

“Favorable” decision in the Steven D. Martinez case.

15

two and a hali years after the initial filing, Steven’s claim

was again denied by an administrative law judge. On

appeal, the Secretary again remanded the case. A sup-

plemental hearing was held in late October 1988, some

three and a half years into the process. That hearing

resulted in a final “favorable” decisiou on December 27,

1988.

The “favorable” decision in Steven Martinez’ case

again illustrates the illegality of 20 C.F.R. § 415.924.

This final decision finds Steven to be disabled and

eligible for SSI as of April 15, 1986, the day he turned

eighteen (18), but not before.!! No intervening injury or

illness struck Steven on April 15, 1986. His impairments

of April 15, 1986, were clearly of “comparable severity”

to those he suffered in 1985 when he applied. Indeed if

anything, his condition had improved by 1986 because

he had had a longer recovezy time since his temporary

colostomy. When the Secretary’s administrative law

judge considered primarily the impact of his long-term

hearing loss and congenital hand deformity, he appro-

priately found Steven’s residual functional capacity to be

so diminished that he was disabled as an adult. How-

ever, since none of Steven’s impairments met a Listing,

20 C.F.R. § 416.924 barred him from receiving SSI as a

child.

C. Leon Gable

Leon Gable was born on November 28, 1969, and

suffers from defective intellectual development, the side

effects of seizure medication (sluggishness, blurred vi-

sion and uncontrolled bowel movements), limited social

ability and impaired ability to deal with stress. In De-

cember 1986, his mother filed an application for child’s

SSI benefits on his behalf. In July 1987, his mother also

filed an application for “disabled adult child’s” benefits

11. Steven took no further appeal of this partially favorable

decision rendered over three and a half years after his application

for benefits.

16

for Leon under ‘Nitle UI of the Social Security Act.'2 Both

claims were de initially and on reconsideration.

Leon’s mother sought and obtained a hearing before a

Social Security administrative law judge. Almost two

years after the child’s SSI claim was filed, the ALJ issued

a decision denying that claim, pursuant to 20 C.F.R.

§416.924, finding that, “the evidence fails to establish

conclusively a history of impaired intellectual functiori-

ing below that (I.Q. of 69 or less) prescribed by the

Listings.”

However, with regard to Leon’s claim for disabled

adult child’s benefits under Title II of the Social Security

Act, the ALJ reached a different result, because only

claimants for childhood SSI benefits are required to

meet or equal a Listing. The ALJ considered the testi-

mony of a “vocational expert” who had appeared at the

hearing. This vocational expert testified that Leon was

adversely affected by limited social awareness, limited

social ability, poor ability to deal with stress, a history of

seizures and impaired intellectual capacity. The voca-

tional expert opined that an individual with Leon’s

combination of impairments was unlikely to function in

any job. Using the standard for a disabled adult child, in

which residual functional capacity is assessed, the ALJ

found Leon to be under a disability since Sept. 1, 1983

(when he was 13 years of age). This entitled him to

disabled adult child benefits after age 18, but not to SSI

benefits as a child!

12. Ordinarily the child of a wage earner, who is entitled to old

age or disability benefits or who has died, may receive benefits on

that parent’s account only until age 18. 20 C.F.R. §404.350.

However, such a child may continue to receive Title II Social

Security benefits on the parent's account past age 18, if the child

has a disability that began before age 22. Jd. This is a “disabled adult

child.”

13. Appendix C to this brief is the administrative law judge's

decision of November 28, 1988, in the Leon Gable cas-.

17

On administrative appeal, the Secretary, acting

through the Appeals Council, affirmed the decision of

the administrative law judge, stating that he had cor-

rectly applied the law.'*

NOSSCR could multiply examples from around the

country of children who have been denied SSI benefits

by the Secretary until the date of their eighteenth (18)

birthday and granted benefits as of that birthday with no

change in the severity of their impairments. However,

we do not mean to suggest that 20 C.F.R. § 416.924 is

illegal only with regard to this subgroup of children’s SSI

claimants who turn eighteen (18) during the Secretary’s

extended administrative processes. It is also illegally

applied to young children who are denied children’s SSI

benefits who, we are confident, would have to be

awarded benefits if their residual functional capacity

were assessed in a manner comparable to that assess-

ment for adult claimants. We specifically bring to this

Court’s attention the arbitrary and irrational results in

the cases of children turning eighteen (18) because of

the Secretary’s own recognition of their disparate, non-

comparable treatment, and not in any way to sanction

the Secretary’s illegal treatment of younger claimants.

Ill. THE REASONS ASSERTED BY THE SECRETARY

FOR HIS DISPARATE TREATMENT OF DIS-

ABLED CHILDREN ARE NEITHER LAWFUL NOR

RATIONAL NOR MANDATED BY PRAGMATIC

CONCERNS.

The Secretary argues that “the concept of compara-

bility does not rigidly require uniformity insofar as the

subjects to be compared ‘are different in a fundamental

way.” Brief for the Petitioner, p. 24. But surely the

14. Appendix D to this brief constitutes the Appeals Council's

decision in the Leon Gable’s case. Counsel of Record is advised that

Leon Gable’s attorney intends to file an appe«i of the Secretary's

decision to federal court.

18

Statutory grant of benefits to children with impairments

of comparable severity requires like results where there

are identical impairments as in the cases cited above.

Denial of childhood benefits in situations of comparable

severity is the very essence of a regulatory framework

that is arbitrary, capricious and manifestly contrary to

the statute. Atkins v. Rivera, 477 U.S. 154, 162 (1986).

The Secretary further argues that the combined

effect of multiple impairments is considered throughout

the disability determination process. Brief for the Peti-

tioner, p. 28, n.19. However, for children this process

cnt eninadneatheGtemtantndbaiiatbaner antes

have a severe impairment that meets or equals a specific

listing. By the Secretary’s edict, these combined effects

will only be “compared to the findings of the listed

impairment most similar to the individual’s most severe

impairment. The functional consequences of the impair-

ments (i.e., a ee deci e aoe

cannot justify a determination of equivalence.”

83-19, P nmny Be map Racy or ay ~ellmr

regulations, Steven Martinez’ functional limitations did

not render him disabled for SSI purposes until he turned

eighteen (18), then rendered him disabled.

Of course no listing of afflictions can ever be com-

prehensive, nor do al! impairments necessarily impact

all individuals in the same way. Indeed, as the Listings

have been promulgated and revised, the Secretary pre-

viously acknowledged that they were not comprehensive

and were not intended to preclude assessment of func-

tional limitations in those cases where the Listings were

not equaled or met. See Marcus v. Bowen, 696 F. Supp.

364, 373-376 (N.D. Ill. 1988).

The Secretary asserts:

The regulations focus, however, not on the individ-

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

impact of the impairment on his physical, mental,

19

and emotional growth and development. An assess-

meut of functional abilities will normally be sub-

sumed in applying these standards.

Brief for the Petitioner, p. 42. This se’f-contradictory

language obfuscates rather than ciarifies. If disability is

not the impairment of function of an individual, what is

it? In some cases, the child’s impairment of physical,

mental and/or emotional growth will be demonstrated by

the child meeting or equaling a specific Listing. But

because the Listings cannot be comprehensive, and

because the overall functional consequences of impair-

ments irrespective of their mature or extent cannot

justify a determination of equivalence, the Secretary’s

The Secretary goes on to argue:

Simply put, an assessment of residual functional

capacity or functional impairment cannot exist in a

vacuum. The relevant question is, functional capac-

ity to do what? With respect to adults, the Secretary

is instructed to inquire into an individual’s func-

tional capacity to engage in “substantial gainful

activity,” i.e., to work. Ability to work thus provides

a single, objective benchmark against which a per-

son’s individual non-medical attributes—his age,

education, and previous work experience —can be

assessed. As the Secretary has recognized from the

outset of the program, however, the assessment of

disability in children “cannot properly be associated

with an inability to work, since children are not

ordinarily expected to engage in such activity.” J.A.

90. (Emphasis in original).

Brief for the Petitioner, p. 43. This is simply disingenu-

ous. Obviously assessment of residual functional capac-

ity or functional impairment cannot exist in a vacuum.

But there is no mystery as to against what it should be

assessed. The Secretary has acknowledged that the

and “function in the school sc ing.” Jd. at 33242.'* For

the severely impaired child who does not meet or equal

a Listing, an assessment of limitation of function in

these areas is essential to determine whether that child

or equal the Listings. Using this cr‘ >ria, the Secretary

found Leon to be disabled at age 13. [he Secretary is not

unable to apply comparable criteria, but rather is unwill-

ing to award SSI benefits to comparably impaired chil-

The Secretary opines:

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

there are any “gaps” in the Secretary's Part B Listing

(Br. in Opp. 2+) —that is, if experience reveals that

15. While these proposed regulations, if adopted, would cer-

tainly be an improvement over the current children’s mental

:

capacity

See ieliiaapincessanempeniow eat

that an appellant could challenge a particular Listing or

absence thereof on judicial review. Rather, it stated:

Plaintiffs’ argument may well be valid, in many

casec; but errors in applying the regulations in some

cases do not demonstrate invalidity of the regula-

ng Pty tra peye +

a den caeasnaenne a

interpreted, the remedy lies in the appeal process in

individual cases, not in a class-action decree.

22

Zebley v. Heckler, 642 F. Supp. 220, 222 (E.D. Pa.

1986).

The reality is that such an attack on the adequacy or

shall review only the question of conformity

such

Brief for the Petitioner, p. 21. A direct attack on a

specific Listing or lack thereof would implicate the

courts in what the claims is implicated here:

an attack has been mounted, much less one that has

been successful. One can imagine the Secretary's reac-

tion if, on judicial review, one were to ask a court, for

I -

who wouid be granted such benefits.

CONCLUSION

Congress has clearly and specifically mandated that

the Department of Health and Human Services grant

SSI benefits to children who suffer from any medically

determinable physical or mental impairment of compa-

rable severity to that of an adult who would be granted

such benefits. Instead the Secretary of DHHS holds

children to a more restrictive standard of disability than

result of this disparate treatment is to deny SSI and

Medical Assistance to many of the children whom

Congress intended to benefit from these programs. The

Secretary's arguments that children are treated in a

comparable manner to adults ignore the inevitable re-

sults of this regulatory framework and are belied by his

actions. The arbitrary and capricious results are not

150 S. College St.

Carlisle, PA 17013

(717) 243-4611

Counsel of Record

Nancy G. Shor, Esq.

Executive Director

National Organization of Social

Security Claimants’

Representatives

19 East Central Ave.

Pearl River, NY 10965

Bas

APPENDIX

APPENDIX

TABLE OF CONTENTS

Page

Appendix A: “Background Material and Data on

Programs Within the Jurisdiction of the Com-

mittee on Ways and Means,” 1989 Edition,

SIE oc cccccccesccccceccoceccccesccccces A-1

Appendix B: Steven D. Martinez, “Favorable” Ad-

ministrative Law Judge Decision, December

Be) EEE cccccccccccccescececeeeseceececces A-3

Appendix C: Leon C. Gable, “Favorable” Adminis-

trative Law Judge Decision, November 28,

Be o ccceccccccescocceccococeseesocecese A-13

Appendix D: Leon C. Gable, Appeals Council Deci-

sion, August 3, 1989 ....... 0... 6c e eee uee A-22

101st Congress WMCP:

pom } COMMITTEE PRINT {

101-4

teerneenentiinanaitieeee ee

COMMITTEE ON WAYS AND MEANS

U.S. HOUSE OF REPRESENTATIVES

BACKGROUND MATERIAL AND DATA

ON PROGRAMS WITHIN THE

JURISDICTION OF THE

COMMITTEE ON WAYS AND MEANS

1989 EDITION

MARCH 15, 1989

Prepared for the use of the Committee on Ways and Means by its staff

U.S. GOVERNMENT PRINTING OFFICE

92-695 WASHINGTON : 1989

—

‘

For sale by the Superintendent of Documents, Congressional Sales Office

U.S. Government Printing Office, Washington, D.C. 20402

A-1

A-2

TABLE 2.— BASIS FOR TITLE Il ALLOWANCES —

NATIONAL FIGURES: INITIAL

WORKER DETERMINATION,

FISCAL YEARS 1975-88

IN PERCENT

Equals na ey

Fiscal Year Meets listing

— =

WTB cccccccccccccccccscce 294 ~43.9 26.7

BF e ccccccccccccscccccesse 29.0 45.1 25.9

Pre peecceceeses 34.2 41.9 23.9

BG cccceccccccoccccceces 45.6 31.9 225

eee eeennseoesoecs 55.1 22.7 22.1

BR cccccccccscccoccesess $7.9 16.2 25.9

Pcccccccceccscesceccese 63.9 12.3 23.8

Bn oc ccccccccceccccccces 72.7 8.6 18.7

rrr 74.0 8.3 17.7

Bs ccccecescccescosccees 66.7 8.7 24.6

Be coccccccecccccccccese 62.7 9.2 28.1

Bs ccccccccccccscocceces 68.2 8.7 23.1

Pe cececesesecocsoceoses 66.0 10.2 23.8

BR cecccceccccccccccccce 64.3 11.0 24.7

Source: Office of Disability, Secial Security Admunistration.

\

\

\

\

\

\

\

en

A-3

DEPARTMENT OF

HEALTH AND HUMAN SERVICES

Social S tow Adunia .

OFFICE OF HEARINGS AND APPEALS

DECISION

IN THE CASE OF: CLAIM FOR:

Steven D. Martinez Supplemental Security Income

(Claimant)

OMITTED

(Social Security Number)

Section 1614 of the Social Security Act, 20 CFR

416.901-416.999, and Appendices 1-2, Subpart P, Reg-

ulations No.4 (Code of Federal Regulations) provide the

definition of “disability” that is being applied in this

administrative decision

The claiment in the instent case is 0 twenty yeor old

man who has a tenth grade education and no past

relevant work experience. His mother, Sylvia Martinez,

filed an application for Title XVI supplemental security

income on the claimant's behalf on May 3, 1985, and

alleged therein that he had been disabled since July

1980 because of a hearing impairment and a colostomy

(Exhibit 1). His claims were denied at both the initial

and reconsideration levels. Dissatisfied with those deter-

Luinations, the claimant filed a timely request for hear-

ing on December 5, 1985 (Exhibit 10). This request for

hearing resulted in a denial by an \ninistrative Law

Judge on June 25, 1986 (Exhibit 21). On appeal, the

Appeals Council remanded the case for additional eval-

uation because the claimant had attained age eighteen

before the date of the decision. This remand resu!ted in

another denial decision issued on October 26, 1987. The

EVALUATION OF THE EVIDENCE

sequential

activity, severity of impairments and vocational factors

are considered in that order. However, if a determination

can be made at any stage that an individual is, or is not,

“disabled”, evaluation under a subsequent step shall be

unnecessary. Section 416.923 of the pro-

vides that a child under age eighteen is disabled if he (a)

is not doing any substantial gainful activity; and (b) has

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to 20 CFR 416.920(f), the claimant is

“disabled” , as of the date he attained age cighteen,

Ap” 15, 1986, but nor prior thereto.

After careful consideration of the entire record, the

Administrative Law Judge makes the following findings:

1. The claimant has never engaged in substan-

ically equal to one listed in Appendix 1. Subpart P

A-11

hand; or working in environments with background

—— ee

7. The claimant has no past relevant work

experience.

8. The claimant's functional capacity for the

full range of light work is reduced by nonexertional

limitations (hearing impairment and deformity of

the right hand).

9. The claimant is twenty years old, which is

definec as a younger individual (20 CFR 416.963).

10. The claimant has a high school education

(20 CFR 416.964).

11. The claimant does not have any acquired

work skills which are transferrable [sic] to the

skilled or semi-skilled work activities of other work

(20 CFR 416.968).

12. Based on an exertional capacity for light

work, and the claimant’s age, ecucation, and lack of

work experience, Section 416.969 of Regulations

No. 16 and Rule 202.20, Table No. 2, Appendix 2,

Subpart P, Regulations No. 4 would direct a conclu-

sion of “not disabled”.

13. Considering the claimant's additional non-

exertional limitations within the framework of the

above-cited rule, he cannot be expected to make a

vocational adjustment to work which exists in sig-

nificant numbers in the national economy.

14. The claimant has been under a “disability”

as defined in the Social Security Act, since April 15,

1986, the date he attained age eighteen (20 CFR

416.920(f)).

A-12

DECISION

It is the decision of the Administrative Law Judge

that, as of the date the claimant attained age eighteen,

April 15, 1986, the claimant was “disabled” under Sec-

tion 1614(a)(3)(A) of the Social Security Act, and that

the claimant’s disability has continued through at least

the date of this decision.

The component of the Social Security Administra-

tion responsible for authorizing supplemental security

income payments will advise the claimant regarding the

non-disability requirements for these payments, and if

eligible, the amount and month(s) for which payment

will be made.

RICHARD B. PAYNTER

Administrative Law Judge

__ December 27, 1988

Date

A-13

DEPARTMENT OF

HEALTH AND HUMAN SERVICES

Social Security Administration

OFFICE OF HEARINGS AND APPEALS

DECISION

Child’s Insurance

Benefits (Disability and

Supplemental Security Income

Leon C. Gabel (Child) |

(Claimant)

OMITTED (Claimant)

Leon N. Gabel OMITTED (Wage Earner)

(Wage Earner) (Social Security Number)

PROCEDURAL HISTORY

The claimant’s mother, Monica Gabel, filed an ap-

plication for child’s supplemental security income ben-

efits on the claimant’s behalf. This claim was denied

through the hearing level. After a review by the Appeals

Council the prior denial was vacated and the under-

signed was instructed to issue a new decision.

Pursuant to the Appeal’s Council directive, a psy-

chological examination, psychiatric examination and

neurological examination were scheduled. The reports

of these examinations were proffered to the claimant’s

representative and entered into the record. Additionally,

a hearing was held at which time the undersigned

obtained testimony from Paul Salamone, an indepen-

dent vocational expert. Additional evidence was also

received from the claimant’s representative and entered

into the record.

The claimant’s mother also filed an application for

disabled adult child’s benefits on July 2, 1987. The

claimant attained the age of 18 on November 28, 1987.

A-14

This is escalated to the hearing level and I am issuing a

decision on both the application for child’s supplemental

security income and also the application for disabled

adult child’s benefits.

The issue before the Administrative Law Judge is

whether the claimant is disabled under Section

1614(a)(3)(A) of the Social Security Act. The Act defines

“disability” as the inability to engage in any substantial

gainful activity by reason of any medically determinable

physical or mental impairment(s) which can be ex-

pected to either result in death or last for a continuous

period of not less than 12 months or. in the case of a

child under the age of 18, if he or she suffers from any

medically determinable impairment of c»mparable se-

verity.

An additional issue is whether the claimant is enti-

tled to child’s insurance benefits (disability) under Sec-

tion 202(d) of the Social Security Act, as amended. The

specific issue is whether the claimant is under a “dis-

ability,” as defined in Section 223(d) of the Act, which

began prior to the date the claimant attained age 22.

APPLICABLE REGULATIONS AND EVALUATION OF

THE EVIDENCE

Pursuant to the Act, the Secretary has established

Social Security Administration Regulations No. 16. Sec-

tion 416.924 of the regulations provides that a child

under age 18 is disabled if he or she (a) is not doing any

substantial gainful activity; and (b) has medically deter-

minable physical or mental impairment(s) which com-

pare(s) 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

A-15

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

Regulations No. 4; or

(3) Is determined to be medically equal to an

impairment listed in Appendix 1 of Subpart P of

Regulations No. 4

The Listing of In\; «ments describes, for each of

Parts A and B. In evaluating disability for a person under

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

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

be used.

Pursuant to the Act, the Secretary has established

1. An individual who is working and engaging

in substantial gainful activity will not be found to be

“disabled” regardless of medical findings (20 CFR

404.1520(b));

2. An incividual who does not have a “severe

impairment” will not be found to be “disabled” (20

CFR 404.1520(c));

3. If an individual is not working and is suffer-

ing from a severe impairment which meets the

duration requirement and which “meets or equals a

listed impairment in Appendix 1,” Part A or Part B,

A-16

of Subpart P of Regulations No. 4, a finding of

“disabled” will be made without consideration of

vocational factors (20 CFR 404.1520(d));

4. If an individual has worked and is capable of

work he cr she has done in the past, a

of “not disabled” must be made (20 CFR

404.1520(e));

5. If an individual’s impairment is so severe as to

preclude the performance of past work, other factors

including age, «ducation, past work experience and

residual functional capacity must be considered to

determine if other work can be performed (20 CFR

404.1520(f)).

The rules set out in Appendix 2 of Subpart P of

No. 4 will be considered in determining

whether a claimant with exertional impairments is or is

not disabled. The regulations also provide that if an

individual suffers from a nonexertional impairment as

well as an exertional impairment, both are considered in

residual functional capacity (20 CFR

404.1545). The rules established in Appendix 2 are then

used as a framework in evaluating “disability,” if a

finding of disabled cannot be made based on strength

solely a nonexertional type of impairment, determination

as to whether disabiiity exists shall be based on the

principles in the appropriate sections of the regulations,

giving consideration to the rules for specific case situa-

tions in Appendix 2.

DECISION

The evidence of record fails to demonstrate that the

claimant’s impairments considered singly or in combi-

nation meet or equal the Listing of Impairments. There-

fore it is concluded that the claimant does not meet the

A-17

standards for eligibility for child’s supplemental security

income benefits. ;

The evidence demonstrates that there are no jobs

existing in significant numbers which the claimant can

perform. Therefore he is eligible for disabied adult

child’s benefits.

RATIONALE

In order for a child to be determined under a

disability under Title XVI, his impairment must be listed

in the Listing of Impairments of Appendix 1, Subpart P

of Regulations No. 4 or singly or in combination must be

the equivalent of a listed impairment. Generally speak-

ing, the Listing of Impairments is a detailed listing

divided by body systems into sections of specific diseases

and abnormalities in prescribing types of test results and

other data required to support a finding of “disability”.

Listing 112.05 requires that the claimant have an

1.Q. of 60 to 69 inclusive, and physical or other mental

impairment imposing additional and significent restric-

tion of function or development progression.

Psychological testing in September 1983 when the

claimant was 13 years old demonstrated a Verbal LQ.

score of 78, a Performance I1.Q. score of 71 and a

Full-Scale I.Q. score of ~2 (Exhibit 11).

Testing on June 2, 1986 when the claimant was 16

years of age, showed a Verbal 1.Q. score of 69, a

Performance I.Q. score of 78 and a Full-Scale LQ. score

of 72. He functioned in the voper area of the educable

mentally retarded range (Exhib't 11).

The psychological testing requested by the Appeals

Council directive was performed on August 9, 1988 by

psychologist Richard Pearson. This demonstrated a Ver-

bal I.Q. score of 76, a Performance I.Q. score of 81 and

a Full-Scale 1.Q. score of 77. His overall conclusion was

that the claimant would be a candidate for a carefully

A-18

managed work setting, appropriate to his limited intel-

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After careful consideration of the entire record, the

Administrative Law Judge makes the following findings:

1. The claimant is the child of the wage earner,

Leon C. [sic] Gabel.

2. The claimant was unmarried at the time that

bis application for disabled adult child's

benefits was filed and is still unmarried.

3. The claimant was dependent on the wage

4. The claimant attained the age of 18 on

November 28, 1987.

A-20

5. The claimant has never engaged in substan-

tial gainfui activity.

6. The claimant has the foliowing impairment:

borderline intellectual functioning, a seizure disor-

der (In control with medication).

7. The claimant has no past relevant work

experience.

8. The medical evidence establishes that the

claimant does not have 21n impairment Or combina-

tion of impairments listed in or medically equal to

one listed in Appendix 1, Subpart P, Regulations No.

4.

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

A-21

il

iH

Dated: November 28, 1988

(1) Meets the duration requirement; and

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

404; or

an

Part 404 (20 CFR 416.924).

The Administrative Law Judge in his decision found

cal or mental impairment(s) which can be expected to

result in death or which has lasted or can be expected to

last for a continous period of not less than 12 months (20

CFR 416.905). This is the same standard used by the

Tat

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A-25

It is the decision of the Appeals Council that, based

on the application filed on December 2, 1986, the

claimant is not eligible for chiid’s supplemental security

income benefits under sections 1602 and 1614(a)(2)(A)

of the Social Security Act.

It is the decision of the Appeals Council that, as of

November 28, 1987, the claimant has been disabled

under section 1614(a)(3)(A) of the Social Security Act.

The component of the Social Security Administra-

tion responsible for authorizing supplemental security-

income payments will advise the claimant regarding the

nondisability requirements and, if eligible, the amount

and the month(s) for which payment will be made.

APPEALS COUNCIL

Bernard A. Dowgiello, Member _

Larry K. Banks, Member

Date: August 3, 1989