Amicus Curiae Brief — Sullivan v. Zebley

OF THE UNITED STATES,

NATIONAL ALLIANCE FOR THE MENTALLY ILL,

NATIONAL ASSOCIATION FOR RIGHTS

PROTECTION AND ADVOCACY,

NATIONAL ASSOCIATION OF PRIVATE

RESIDENTIAL RESOURCES, AND

NATIONAL MENTAL HEALTH ASSOCIATION

IN SUPPORT OF RESPONDENTS

LEONARD S. R.UBENSTEIN

Mental Health Law Project

2021 L Street, N.W., Suite 800

Washington, D.C. 20036

(202) 467-5730

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................ 2

Sy Gi MED ccccccceccocccessons 4

The SSI Program for Children ................. 6

The Disability Assessment Rules for Children with

DEE Sccescceccccecccessdesess 7

SUMMARY OF ARGUMENT ................... 10

GEIREEEEEE Se cccsecsstéccccctcccccessoceses 12

THE SECRETARY HAS VIOLATED THE SOCIAL

SECURITY ACT BY REFUSING TO ADHERE TO A

FUNCTIONAL TEST OF DISABILITY ........... 12

A. Functional Assessment Is the Cent.al Ingredient

in the Disability Determination.............. 13

i

TABLE OF AUTHORITIES

Cases: Page

Bowen ». City of New York, 476 US. 467 (1986)... 6) 7, 9, 12,

Bowen v. Yuckert, 482 US. 137 (1987) ............ ee

City of New York ». Heckler, S78 F. Supp. 1109 (E.D.NLY.

1984), aff'd, 742 F.2d 729 (2d Cir. 1985), aff'd sub

nom. Bowen o. City of New York, 476 US. 467

DE SeGGSeeee6e -ceoccececccoccccccces 8, 18

Heckler 0. Campbell, 461 US. 456 (1983) ........ 11, 13, 16

Hinckley o. Secretary, 742 F 2d 19 (ist Cir. 1984) ....... 15

Mental Health Assocation of Minnesota 0 Schweiker

554 F. Supp. 157, 162 (D. Minn. 1982), aff'd, 720

A A ea 18

Powell o. Sdueciker, 688 F 24 1357 (11th Cir 1982) ..... 15

Statutes and Regulations:

a ba 9

Dt pees seceeceooceccceccs ccc 7

42 US.C. § 421 note (Supp. [V 1986) ............10,W

42 USC. § 424M) (1982) ............. 27

es re ee Ov OCR pabeee 6

42 US.C. § 1382e ef seq. (1982) . . ee

50 Fed. Reg. 35038 (Aug, 28, 1985) ae eeu és 10

54 Fed. Reg 33238 (Aug 14,1989) .............. 9,,10

54 Fed. Reg 33241 (Aug 14,1999) ............. 11,15

54 Fed. Reg 33243 (Aug 14,1989) ............ 15

TABLE OF AUTHORITIES—Continued

Page

Other Authorities:

Anthony and Jansen, Predicting the Vocational Capacity

of the Chronically Mentally Ill: Research and Policy

Impli ations, 39 Am. Psychologist 537 (1984) ...... 18

Blackman & Levine, A Follow-up Study of Preschool

Children Evaluate? for Developmental and Behavioral

Problems, 26 Clinical Pediatrics 249 (May 1987) ... 26

Chess & Thomas, Origins and Evolution of Behavior Disor-

ders from Infancy to Early Adult Life (1984) ........ 22

Christian, Childhood Autism, in Developmental-Behavioral

Pediatrics 816 (M. Levine et al. eds. 1983) ..... 25, 26

Christian, Reaching Autistic Children: a

Parents and Helping Professionals, in Coping with

Crisis and Handicap (A. Milunsky ed. 1981) ..... 26

Crocker & Cullinane, The Function of Teams, in

RENAL. cde eedbdeerceececece: 22

Foster et al., Screening for Developmental Disabilities, 143

WJ. Med. 349 (Sept. 1985) ............... 22, 23

Fox & Greaney, Disabled Children’s Access to

ting RNR NNER

DEE SSeS Sbbee SbSSSbb cece edoccccccs: 6

F Infant and Preschool Developmental

in Behavioral Pediatrics

927 (M. Levine et al. eds. 1983) .............. 23

Goldman and Gattozzi, Balance of Powers: Social Security

and the Mentally Disabled, 1980-1985, 66 Milbank

Ge Bee ED Sacccccccccccscsses beeen ees 18

and Fine, eds. 1987) ............. 18

H.R. Rep. No. 619, 98th Cong., 2d Sess. at 15, 1984 U.S.

Code Cong. & Admin. News 3052 ........... 20

iv

TABLE OF AUTHORITIES—Continued

Page

Hamilton, Socul Security Disability Programs: How They

Work for the Mentally Impaired, in Psychiatric

Disability: Clinical, Legal and Administrative

Dimensions 417 (Meyerson and Fine, eds. 1987) .. 18

Healy, Screening for Disabilities, 143 W.J. Med. 379 (Sept.

GED ccc cc ctccbetscccesedistedccocccocs 22

House Committee on Ways and Means, Background

Material and Data on Programs within the

Jurisdiction of the Committee on Ways and Means,

10ist Cong., Ist Sess. 699-700 (1989). ........... 2

Koegel and Schreibman, How to Teach Autistic and Other

Severely Handicapped Children (1981)........... 26

Age

Liptak & Chamberlin, Clinical Assessment of Behavioral

Performance or Adjustment, in Developmental-

Behavioral Pediatrics 916 (M. Levine et al. eds.

WR ge ee a rer ere 23

Magrab & Lehr, Assessment Techniques in Pediatric

Psychology, in Handbook for the Practice of Pediatric

Psychology (J. Tuma ed. 1982) ............5.. 22

National Institute of Medicine, Research on Children

paper (Publication No. OTA-BP-H-33) (1986) ..... 4

Palfrey et al., The Identification of Children’s Special Needs:

A Study in Five Metropolitan Communities, 111 J.

Pediatrics 651 (Nov. 1987)...........000005- 24

V

TABLE OF AUTHORITIES—Continued

Puig-Antich & Rabinovich, Major Child and Adolescent

Psychiatric Disorders, in Developmental-Behaviora!

Pediatrics 865 (M. Levine et al. eds. 1983) ..... .

Rubenstein, Science, Law and Psychiatric Disability, 9

Psychosocial Rehabilitation J. 7 (1985) ........

Rymer & Adler, Children and Medicaid: The Experience

SUG CEE oc occccecoccosececees

United States Department of Health and Human

Services, Social Security Administration, Social

Security Bulletin, Annual Statistical Supplement,

Bey CE UE ce ecccercseccoseeseccees

IN THE

Supreme Court of the United States

OcTOBER TERM, 1988

No. 88-1377

Louts SULLIVAN, Secretary of the United States

Department cf Health and Human Services,

Petitioner,

Vv.

BRIAN ZEBLEY eft al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF OF AMICI CURIAE

AMERICAN ACADEMY OF CHILD AND

ADOLESCENT PSYCHIATRY,

AMERICAN PSYCHIATRIC ASSOCIATION,

ASSOCIATION FOR RETARDED CITIZENS

OF THE UNITED STATES,

NATIONAL ALLIANCE FOR THE MENTALLY ILL,

NATIONAL ASSOCIATION FOR RIGHTS

PROTECTION AND ADVOCACY,

NATIONAL ASSOCIATION OF PRIVATE

RESIDENTIAL RESOURCES, AND

NATIONAL MENTAL HEALTH ASSOCIATION

IN SUPPORT OF RESPONDENTS

Amici curiae, organizations of mental health and mental

retardation professionals, families and advocates with a

special concern for children, address a single question in this

brief: Whether the exclusive use of the Secretary’s "listings"

of impairment to assess eligibility for Supplemental Security

Income ("SSI") benefits for children with mental disabilities,

without a separate assessment of residual functional capacity,

violates the Social Security Act. Children with mental disabili-

ties represent half of all SSI disabled children.’ The methods

of assessment of disability among these children illustrate the

arbitrariness of the approach the Secretary uses for disability

evaluation in all children.

The parties have consented to the filing of this brief.

Letters of consent are attached.

INTEREST OF AMICI CURIAE

Amici are organizations that share a strong commitment

to meeting the needs of children with mental disabilities,

especially those who live in poor families. They all work to

assure that programs established by Congress are faithfully

carried out by those responsible for their administration.

The American Academy of Child and Adolescent Psychia-

try is a national professional association of more than 4,100

child and adolescent psychiatrists. Its members are physicians

who have completed a general psychiatry residency and two

years’ additional residency training in child and adoiescent

psychiatry. This medical discipline is concerned with the

prevention, diagnosis and treaunent of developmental and

psychiatric disorders in children, adolescents and families.

The American Psychiatric Association, founded in 1844, is

the nation’s largest organization of physicians who speciali

in psychiatry, with more than 35,000 members. The Associa-

tion and its members have been actively involved in the

process by which the Secretary of Health and Human

Services determines whether mentally ill persons are entitled

' House Committee on Ways and Means, Background Maternal and Data

on Programs within the Jurisdiction of the Committee on Ways and Means, 101st

Cong., Ist Sess. 699-700 (1989).

3

to Social Security and SSI disability benefits. It has advised

Congress and the Secretary concerning standards and

procedures that should be used in benefits determinations

and its individual members participate in the treatment and

evaluation of disability applicants.

The Association for Retarded Citizens of the United States,

with 160,000 members and 1,300 local chapters, is the largest

devoted to securing the rights of and

effective services for the 6 million adults and

children who are retarded. It participates actively in

formation of public citizens with mental

as fairly and fully re the interests of citizens with

Advocacy (NARPA) is the only national organization that

addresses both mental health and retardation issues and that

includes in its membership a broad spectrum of state depart-

mental administrators, specialists in treatment and habilita-

tion, professional advocates, and former and present recipi-

ents of mental health and retardation services. NARPA has

been invited to testify on several occasions before the United

|

retardation

these agencies serve need public support to obtain serv-ves

to help them become more independent.

The National

advocacy orgaruzation

illness and mental

NMHiA has worked w

persons with mental and

prevent mental illness. The NMHA’s 650 local chapters and

state divisions and its more than one million volunteers and

supporters work toward these goals through a wide range of

activities im social action, education, advocacy and public

|

STATEMENT OF THE CASE

considered severely disordered or handicapped by their

impairment.’ Among inner-city children, who are often

? Office of Techrology Assessment, Children’s Mental Health:

Problems and Services - A background paper (Publication No OTA-6P-

1-33) (1986)

i}:

bt

its

WF J

i

Bulletin Annual Statistical Supplement

potentially eligable tor S41 s net

‘a dren

number

slates

and

for

damatbbed

teom receipt of Aid to Pamiles with Oepervier’

, Children and Medicaid The Experience im Four

for

denves

cag Sere

States (1987).

Adrmurustraton Sonal

able 966 The

to seven Gme”

Med cand

Chakdren.

5 Unuted States Department of Health and Human Services, Smal

expenditures for chukdrer.

eligybility standards that would cover disabling impair

ments in children if they were of “comparable severity” to a

disabling impairment in an adult. The statute provides:

p8e2¢

considers disabling. Bowen v. City of New York, 476 U.S. 467,

470-71 (1986). Ondy if the child’s condition “meets” these

he or she considered disabled.” 20 CFR. § 416.924.

a)

tiltsty ih

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ta iT

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determination if all other criteria for the listing are not met jt App 81,

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was explicitly set forth in

City of New York, 476 US. at

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” The Secretary's use of the term ‘medical’ to exciude the assessmen'

of residual functional capacity, eg. Pet Br 38, & confusing and, in fact,

contrary to the defiruton of resadual functional capacity un the regulahons

D CER § 416.95)

The reguiatons state flatly “Residual functional capacity s 8 medical

i NTH ti

tH

* a severely hyperactive child with a secondary behav-

it tt iti ‘lt

ioral communication disorder, but who retains some

self-care skills.

new cules for evaluat-

33238 (Aug 14, 1989)

pa Rag

* On August 14, 1989, the Secretary

ing mental i_npaurment im children M4

10

. a child with an IQ between 60 an’ 69 who has severe

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(1982), a phrase construed by this Court to mean neither

11

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

461 U.S. 456, 466 (1983).

h is contradictory. He acknowl-

edges that severity of disability in children must be "mea-

sured according to functional limitations imposed" by an

54 Fed. Reg. 33241 (Aug. 14, 1989), see also Pet.

but nevertheless excludes from consideration "the

individual ch:ld’s ability to function as such.” Pet. Br. 42.

Indeed, he goes so far as to deny children even the opportu-

nity to show that their functioning is so impaired that they

should be considered disabled. The process ts to a

perverse game of chance, depending not on the of

disability, but on the presence or absence of certain or

symptoms or functional limitations that the Secretaty hap-

ahaha sngetimamtied sage

This inconsistency is not a product of a dispute céncern-

ing the meaning of “comparable severity,” but of the assess-

ment methods necessary to carry it out. For 15 years, the

Secretary has recognized~as recently as August, 1989, in

proposed new listings for mental impairments, 54 Fed. Reg.

33241 (Aug. 14, 1989)-that disability in children, like disability

in adults, must be defined in functional terms. Yet he insists

that he can somehow figure out the degree of the child’s

functional limitations even as he excludes individualized

evidence showing precisely what those limitations are.

The Secretary's refusal to perform a residual functional

capacity assessment stems from a theory of disability assess-

ment that has never been accepted by anyone in the field. It

has been found arbitrary by the courts, see Bowen v. City of

New York, 476 U.S. 467 ( 986), and has been condemned by

clinicians, researchers and the Congress. To be consistent

with the statutory definition, the Secretary must engage in

a residual functional capacity assessment for children. Indeed,

for children with mental disabilities, inaividual functicnal

assessment may be even more important than it is for adults.

12

That is because impairments have an enormously variable

functional impact on individual children. As a result, the

disability assessments used by professionals—but eschewed by

the Secretary—rely far more heavily on evaluations of

functioning than on signs, symptoms and laboratory findings.

The regulations, by excluding a residual functional capaci-

ty assessment for children, are therefore avbitrary and

capricious.

ARGUMENT

THE SECRETARY HAS VIOLATED THE SOCIAL

SECURITY ACT BY REFUSING TO ADHERE TO A

FUNCTIONAL TEST OF DISABILITY.

This case is a reprise of Bowen v. City of New York, 476

U.S. 467 (1986). In each case the issue concerns the Secre-

tary’s decision to forego the assessment of a person’s func-

- tioning that he recognizes as necessary to determine whether

that person is disabled. In City of New York, the Secretary's

error was to forego the functional assessment of mental

disability in adults mandated in his own regulations and to

substitute in its place a presumption that anyone whose

condition was not serious enough to meet the criteria stated

in the listing was not disabled. 476 U.S. at 473-75. Here, the

mistake is to preclude, by regulation, the functional assess-

ment that is essential under the Secretary's own definition of

disability.

A. Functional Assessment Is the Central Ingredient

in the Disability Determination.

The evaluation of a person’s functional restrictions is the

core of the evaluation of mental disability under the Social

Security Act. See Bowen v. Yuckert, 482 U.S. 137 (1987); Heckler

v. Campbell, 461 U.S. 456, 459-60 (1983). Rather than taking a

strictly diagnostic approach, the disability program focuses

on an assessment of the person’s actual capacity to perform

13

relevant functional tasks. Bowen v. City of New York, 476 U.S.

at 471. The Secretary's regulations recognize that "severity is

assessed in terms of the functional limitations imposed by

the impairment.” Jt. App. 182. For adults, this assessment is

contained not only in the listings, but in the fourth step of

disability adjudication process, the ‘residual functional

capacity” assessment, which “measures the claimant's capacity

to engage in basic work activities.” Id.’ This assessment, the

Secretary has acknowledged, is “crucial.” Jt. App. 181.

Functional criteria are equally critical for children. From

the start of the SSI children’s disability program, the Secre-

tary accepted that childhood disability must be defined by

reference to reduced levels of functioning. Accordingly, in

the first instructions issued in 1973 about the SSI children’s

disability program, the Secretary acknowledged that "disabili-

ty must be defined in terms of the primary activity in which

they engage, namely growth and development, the process

of maturation.” Jt. App. 90. The following year, the Secretary

issued more detailed guidelines on what he meant by “the

process of maturation” and its relationship to childhood

disability. He determined that he would focus on four

discrete areas, all of which require an evaluation of the

child’s functioning. These were:

1. growth-increase in size and maturation of physical

and functional characteristics;

2. learning;

3. mastering basic skills; and

4. emotional and social development.

Jt. App. 96. He added that the emphasis is on the "impact of

the impairment on the child’s life.” Jt. App. 96.

* The first three steps of “he evaluation are designed to identify those

who clearly are not entitled to benefits, those whose impairments are not

severe or who are working, and those who are obviously disabled and

entitled to benefits. City of New York, 476 U.S. at 471.

14

In 1977, when the children’s disability listings were

promulgated, the Secretary reiterated his commitment to a

functional definition of disability. He stated that, when

viewed as a whole, the standards for childhood disability

must fairly and reasonably be calculated to identify impair-

ments that “have a severe impact on a child’s development

in one form or another.” 42 Fed. Reg. 14705 (March 16, 1977).

The Secretary elaborated that the experts on whom he relied

“placed primary emphasis on the effects of physical and

mental impairments in children, the impact on the child’s

activities, and the restrictions on growth, learning and

development imposed on the child by the impairments." /d.

(emphasis added). This approach follows from the enormous

variability in the impact a particular impairment has from

one child to another.

The Secretary's own definition of comparable severity

follows from this approach. It holds that the impairment

must have an “impact on the child’s development to the

same extent that the adult criteria have on an adult's ability

to engage in substantial gainful activity.” id." The Secretary

has acknowledged that to be considered substantively

comparable" within the meaning of the statute, the stan-

dards applied to children with disabilities must be true to a

functional and developmental understanding of disability.

Preface to Children’s Listings, 42 Fed. Reg. 14705 (March 16,

1977). Thus, according to the Secretary, the rules for children,

like those for adults, must be premised on a medically and

'© Even the two lower court cases which the Secretary relies upon to

support his position here, far from permitting the Secretary to exclude

relevant functional and developmental criteria of disability, construed

childhood disability in functional terms. In Hinckley v. Secretary, 742 F.2d

19 (ist Cir. 1984), the court explicitly referred to the Secretary's intent to

examine the ‘effects’ the impairment has on the child. Id. at 23. Similarly,

in Powell v. Schweiker, 688 F.2d 1357 (11th Cir. 1982), the court referred to

mental impairments as among those the Secretary agreed must "be

evaluated in terms of the child’s ability te .unction,” 688 F.2d at 1360 and

n9.

15

scientifically respectable concept . the functional and

developmental nature of childhood disability.

Indeed, the Secretary concedes now that "comparable

is defined in terms of an impairment’s impact on a

child—that is, how it affects his ability to function. Pet. Brief

medically determinable unpairment.” 54 Fed. Reg. 33241 (Aug.

14, 1989) (emphasis added.)"' These are enormous conces-

sions, because the meaning of “comparable severity” is no

longer at issue. Accordingly, contrary to the Secretary's

position, deference to his interpretation of the statute in

defining “comparable severity” is no longer at issue.

What is at issue is the Secretary's method of assessing

functional loss, particularly his refusal to collect or, if he has

Instead, as he candidly states, <¢ relies exclusively on

what he terms "medical factors alo..e," Pet. Br. 38, by which

he means signs, symptoms, diagnoses and laboratory find-

ings from which he infers functional loss. There is “no

'" The contrast between the Secretary's position in the proposed new

data,” 54 Fed. Reg. 33243 (Aug. 14, 1989). His brief, however, says that

“special education” is “not considered as such." Pet. Br. 40.

16

individualized consideration” of reduced functioning. Pet. Br.

36. He excludes competent psychiatric, psychological, social

work, school and parental evidence "on the individual child's

ability to function as such.” Pet. Br. 42. There is therefore no

place in tne process even to receive evidence of the impact

of the impairment on the child beyond what is contained in

the listings. Unlike Heckler v. Campbell, 461 U.S. at 467, which

upheld decisional rules that gave the claimant "ample oppor-

tunity” to present evidence relating to his own abilities, the

rules here provide no opportunity at all for such a showing.

This approach is not only contradictory, but self-deieating.

It is like trying to figure out what is wrong with a car by

looking at its parts, but not listening to the owner describe

what the car is doing wrong. The Secretary's job is not to be

Sherlock Holmes, deducing from cryptic clues, but to design

and carry out assessments that illuminate the degree of a

child’s functional limitations. The impact of impairments can

only be determined by looking at an individual child's

functional abilities." The notion that listings alone can

substitute for an individualized functional assessment has

already been utterly repudiated by science, by courts and by

Congress.

B. The Medical and Scientific Assumptions Underlying

the Assessment Rules Are Baseless.

The contradiction between the functional definition of

disability and.the Secretary's virtually exclusive reliance on

non-functional criteria for evaluation is a product of serious

scientific and medical error as well as administrative irregu-

larity. The methodology the Secretary uses is based on the

erroneous assumption that functional deficits could be

inferred from what the Secretary calls “medical evidence”

alone- rom signs, symptoms and laboratory findings. This

2 Vocational factors, by contrast, are properly excluded from the

assessment of disability in children, who have no work history.

17

assumption was, even at the time the listings were adopted,

® It was finally abandoned by the Secretary

when he promulgated new regulations for the evaluation of

mental disability in adults in the face of judicial decisions,

medical and scientific outcry and congressional pressure. Yet

the repudiated approach remains embodied in the Secretary's

approach to disability assessment in children.

1. Medical Criteria Alone Cannot Assess Functional

Restrictions.

The theory that functional limitation can be inferred from

signs, symptoms and laboratory findings, making a determin-

ation of residual functional capacity unnecessary, while

Scientific research and clinical data in the fields

of psychiatry and rehabilitation psychology

demonstrate that the Listing of mental impair-

ments does not measure ability to work Neither

the symptoms contained in the A portion of the

Listing, nor the daily functional ability provi-

sions contained in the B portion of the Listing,

measures or predicts ability to work.

® See note 7, supra.

‘* Goldman and Manderscheid, The Epidemiology of Psychutric Disabili-

ty, in Psychiatric Disability: Clinical, Legal and Administrative Dimensions 14

(Meyerson. and Fine, eds. 1987). See also Hamilton, Social Security Disability

Programs. How They Work for the Mentally Impaired, in Psychiatric Disability,

supra, at 417 (Study and reseah in the area have not established such a

direct

18

Mental Health Association of Minnesota v. Schwetker

Supp. 157, 162 (D. Minn. 1982), afd, 720 F.2d

;

J

4

£

ote

1109 (E.D.NY. 1984), aff'd, 742 F.2d 729 (2d

sub nom Bowen » City of New York, 476

;

i:

4

|

if

SH

least demanding work.” 578 F. Supp. at 1124. As a result of

led

chaos. The district court in City of New York aptly described

the havoc that followed the substitution of the listings for

19

people were denied or terminated from benefits because of

this rule.

The courts found that the medical criteria in the listings

were an insufficient b--*« om which to render the assessment

me that the Social Security Act re

of a person's

functional

res*dual

claimant

rom Angee

made for each

quired. They ordered

capacity assessment be

el

Hy

tite :

i] Herat

Equally important, the rules emphasize that, in view of

the functional test of disability, no set of listings can capture

the variety in the possible functional deficits an impairment

can produce in an individual, nor can any set of listings

provide an adequate opportunity for the individual to sh »w

a particular set of listings, not at the absence of an individu-

alized functional assessment (Pet. Br. 42). Precisely because of

Ih

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of Pediatric Psychology (|. Tuma ed. 1982)

Frankenburg, Infant and Preschool Developmental Screening, in

Pediatrics 927, 930 (M. Levine et al. eds. 1983) Cf

Foster et al., supra note 17, at 355.

|

!

® The behaviors and capacities a child displays in the physician's

office may be q. different from chose he displays at home or at school

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2 Palfrey et al., The identification »f Children’s Special Needs: A Study in

Five Metropriitan Communities, 111 |. Pediatrics 651, 6° (Nov. 1987)

are a wide variety of symptoms characteristic of autism and it is unlikely

that @ child will have all of them Christian, supra note 24, at 816.

25

special abilities (like the "autistic savants" who have a partic-

ular area of competence or genius, despite overall disability).

Others have severe deficits and no special skills.” Clearly,

attention on the child or to argue about the

definitions of disabilities such as

autism.” In fact, rather than diagnosis is the

sis does not necessarily specify in great detail “the behavioral

excesses and deficits of the individual child,“" individualized

assessments must be made of the severity of the child’s

* id at 822

7 One of the hallmarks of autism is withdrawal from social relation-

ships and a lack of interest in events or people outside the self. Autistic

children often relate to other people much as they would to mere objects.

It is not unlikely, therefore, that an autistic child might experience marked

restriction in performance of daily age-appropriate activities, constriction of

age-appropriate interests, and impaired ability to relate to others, eve

though he might be able to care for himself in an age-appropriate manner.

* Christian, supra note 24, at 820, 821, 827. See also Introduction to

Major Handicapping Conditions, id. at 756.

® See Christian, Reaching Autistic Children: Strategies for Parents and

Helping in with Crisis and Handicap (A. Milunsky ed.

1981); and R_ Koegel and L. How to Teach Autistic and Other

Severely Handicapped Children (1981).

% Blackman & Levine, A Follow-up Study of Preschool Children Evaluated

for Developmental an.J Behavioral Problems, 2% Clinical Pediatrics 249 (May

1987).

* Christian, supra note 24, at 820.

26

illness, based upon examination of the child’s capacities in a

variety of settings. Attempts should be made to ascertain the

particular and weaknesses of the individual child

“and their relevance to his performance in life.“

We do not doubt the authority of the Secretary to vary

his procedures for assessment of claims tailored to the

characteristics and disabling effects of particular impairments.

But he must use that authority in a manner that still

re-

spects a common underlying standard of disability and

employs the

child relevant to that standard.” For children, the only

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27

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be affirmed.

Counsel for Amici Curiae