# Amicus Curiae Brief — Sullivan v. Zebley

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0469%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 521

## Text

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

ue

iL ae 3 £3
2

it beelp itt

s He

HG i ial inl

ca ER
il # Halli
iat
HH a aittatis preted:
dt eA a i
H | Herat Hill!

PATRI
Ee Hl
tH av
ROH cata tae

Ga

eta

A-8

ine
An

Hl Hf Ha tr

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-

a

$2

i A

int HE Ht

a it

nae HTH Hil

fut

1

i
i
it:

Hi H ian

i

Lil

HL

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
iil |

i liadtg i

if

i

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0469%3A15. Public record. Not legal advice.