855 F.2d 67 (3rd Cir. 1988), 87-1692, Zebley by Zebley v. Bowen

Docket Nº:87-1692.
Citation:855 F.2d 67
Party Name:Unempl.Ins.Rep. CCH 14105A ZEBLEY, Brian, by his parent and natural guardian, ZEBLEY, John, on behalf of himself and on behalf of a class of all others similarly situated Intervenor: Raushi, Evelyn, by her parent and natural guardian, Raushi, Mary Intervenor: Love, Joseph, Jr., by his parent and natural guardian, Margarite Love, Appellants, v. Otis
Case Date:August 10, 1988
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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855 F.2d 67 (3rd Cir. 1988)

Unempl.Ins.Rep. CCH 14105A

ZEBLEY, Brian, by his parent and natural guardian, ZEBLEY,

John, on behalf of himself and on behalf of a

class of all others similarly situated


Raushi, Evelyn, by her parent and natural guardian, Raushi, Mary


Love, Joseph, Jr., by his parent and natural guardian,

Margarite Love, Appellants,


Otis R. BOWEN, M.D., Secretary of Health and Human Services.

No. 87-1692.

United States Court of Appeals, Third Circuit

August 10, 1988

Argued May 3, 1988.

Rehearing and Rehearing En Banc Denied Oct. 18, 1988.

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Mark Kauffman, Delaware County Legal Assistance, Chester, Pa., Jonathan M. Stein (argued), Richard P. Weishaupt, Sheila Zakre, Community Legal Services, Philadelphia, Pa., for appellants.

Barbara Koppa Gerolamo, Asst. U.S. Atty., Philadelphia, Pa., Peter S. Krynski (argued), Office of the General Counsel,

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Social Sec. Div., Dept. of Health and Human Services, Baltimore, Md., Dorothea Lundelius, DHHS/OGC/Region 111, Philadelphia, Pa., for appellees.

Ilene W. Shane, Disabilities Law Project, Philadelphia, Pa., amicus curiae, Pennsylvania Protection and Advocacy, Inc., et al.--on side of appellants.

Leonard S. Rubenstein, Mental Health Law Project, Washington, D.C., amicus curiae, The American Academy of Child and Adolescent Psychiatry, et al.--on side of appellants.

Marilyn Holle, Protection and Advocacy, Inc., Los Angeles, Cal., Elizabeth Jameson, Youth Law Center, Alice Bussiere, Nat. Center for Youth Law, San Francisco, Cal., Grace Galligher, Dir. Atty., Coalition of California Welfare Rights Organizations, Sacramento, Cal., amicus curiae, Spina Bifida Ass'n of Greater Los Angeles, Welfare Recipients League and Russell Champaign--on side of appellants.

Before GIBBONS, Chief Judge, and MANSMANN and COWEN, Circuit Judges.


MANSMANN, Circuit Judge:

This appeal requires us to examine the policies and procedures used by the Secretary of Health and Human Services in determining whether a child is "disabled," so as to be eligible for Supplemental Security benefits. A child is defined by statute to be disabled by "any medically determinable physical or mental impairment of comparable severity " to one which would enable an adult to qualify for disability benefits. 42 U.S.C. Sec. 1382c(a)(3)(A) (emphasis added). The Secretary's regulatory scheme confines eligibility for benefits to children who can demonstrate an impairment with medical findings that meet or equal those of one of the specific impairments listed in an Appendix to the regulations. 20 C.F.R. Sec. 416.924.

The Appendix has not been shown to provide an exhaustive catalog of medical findings which could, singly or in combination, describe, "any" impairment which might satisfy the statutory standard of "comparable severity." Therefore, we hold that the Secretary's regulatory scheme is too restrictive to be consistent with the statute. The statutory standard requires that children, like adults, be given an opportunity for individualized assessment of the severity of their functional limitations.

Accordingly, we will vacate the order of the district court, 642 F.Supp. 220, with respect to the claim of the plaintiff class that the procedure set forth in 20 C.F.R. Sec. 416.924 is inconsistent with the statutory mandate of 42 U.S.C. Sec. 1382c(a)(3)(A), and we will remand the case for the entry of summary judgment for the class with respect to that claim. We will, however, affirm the order of the district court with respect to the additional claim of the plaintiff class that the regulations are inconsistent with the Social Security Disability Benefits Reform Act of 1984, 42 U.S.C. Sec. 1381 et seq.


In 1974, to complement the existing contributory social insurance program, Congress established the Supplemental Security Income program to assist "individuals who have attained age 65 or are blind or disabled." 42 U.S.C. Sec. 1381. Although welfare benefits are available under a separate program for needy families with children, Congress included disabled children under the somewhat more generous Supplemental Security Income program in the "belief that disabled children who live in low-income households are certainly among the most disadvantaged of all Americans and that they are deserving of special assistance in order to help them become self-supporting members of our society." H.R.Rep. No. 231, 92nd Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Admin.News 4989, 5133.

The precise statute provides that:

An individual shall be considered to be disabled for purposes of this subchapter if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental

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impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months (or, in the case of a child under the age of 18, if he suffers from any medically determinable physical or mental impairment of comparable severity ).

42 U.S.C. Sec. 1382c(a)(3)(A) (emphasis added).

The Secretary has promulgated regulations setting forth the procedure to be followed in determining whether a claimant meets the statutory definition of disability. Under the regulations, an adult or a child who is not performing any substantial gainful activity, and who has an impairment which meets the duration requirement and has medical findings which meet or equal the findings associated with a listing of specific impairments set forth in Appendix 1 to the regulations, will be found disabled under the regulations without considering any evidence except the medical findings. 28 C.F.R. Sec. 416.920(d); Sec. 416.924(b). Medical equivalence to a listed impairment must be based on medical findings. 20 C.F.R. Sec. 416.926(b). The functional consequences of combined impairments, "irrespective of their nature, cannot justify a determination of equivalence with a listed impairment." Soc.Sec.Rul. 83-19 (emphasis in original).

Part A of the Appendix sets forth medical criteria for evaluating impairments in adults and, where appropriate, in children as well. 20 C.F.R. Chapter III, Part 404, Subpart P, Appendix I. Part B of the Appendix lists additional medical criteria applicable to children only. Id. Part B is to be used first in evaluating disability for a person under age 18. 20 C.F.R. Sec. 416.925(b)(2).

If an adult's medical findings do not meet or equal the listings, the regulations provide for an individualized assessment of the actual degree of functional impairment. 20 C.F.R. Sec. 416.920(e) & (f). 1

No such individual assessment is provided for children in the Secretary's regulations. If a child's medical findings do not meet or equal the listings, the child may not be found to be disabled regardless of the severity of the actual impairment. 2


Brian Zebley was born July 13, 1978 and received Supplemental Security Income (SSI) disability benefits as a disabled child from September 12, 1980 until January 26, 1983. An Administrative Law Judge (ALJ) for the Social Security Administration, Department of Health and Human Services, determined later that the medical evidence of congenital brain damage with spastic right hemiparesis, mental retardation, development delay, eye problems and musculoskeletal

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impairments on the right side no longer met or equaled the requirements of any section of the Listing of Impairments at Appendix 1. Therefore, the Administration found that Brian's childhood disability ceased as of June, 1982 and that his eligibility for SSI terminated August 31, 1982. The Appeals Council denied review and, on July 1, 1983, Zebley filed a class action complaint against the Secretary in the district court.

Zebley asserted as an individual that the decision to terminate his benefits was not supported by substantial evidence. On behalf of the class, he asserted that the Secretary's policy and regulations violated the Social Security Act, specifically 42 U.S.C. Sec. 1382(a)(3)(A), by the Secretary refusing to consider all pertinent facts and medical and vocational factors in determining children's eligibility for SSI disability payments.

Joseph Love, Jr., whose claim for SSI benefits was denied, and Evelyn Raushi, whose benefits were terminated, filed petitions to intervene on September 2, 1983 and November 1, 1983 respectively. On January 10, 1984, the district judge certified a class of

"[a]ll persons who are now, or who in the future will be, entitled to an administrative determination (whether initially, on reconsideration, or on reopening) as to whether supplemental security income benefits are payable on account of a child who is disabled, or as to whether such benefits have been improperly denied, or improperly terminated, or should be resumed."

On October 12, 1984, the district court granted Zebley's motion for partial summary judgment. The court reversed the Secretary's decision on Zebley's individual claim and remanded it to the Secretary for calculation and award of benefits.

On March 13, 1985, upon the Secretary's uncontested motion, the district court remanded Evelyn Raushi's claim to the Secretary for review in accordance with the Social Security...

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