Encarnacion ex rel. George v. Barnhart, Docket No. 02-6192.

• Decision Date: 28 May 2003
• Docket Number: Docket No. 02-6192.
• Citation: 331 F.3d 78
• Parties: Elisa ENCARNACION o/b/o Arlene GEORGE, a minor; Ana Felipe o/b/o Victoria Felipe, Margarita Guzman o/b/o Eric Garcia, and Sandra Perez o/b/o Maurice Perez, on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellants, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee,
• Court: U.S. Court of Appeals — Second Circuit

331 F.3d 78

Elisa ENCARNACION o/b/o Arlene GEORGE, a minor; Ana Felipe o/b/o Victoria Felipe, Margarita Guzman o/b/o Eric Garcia, and Sandra Perez o/b/o Maurice Perez, on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellants, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee,

Docket No. 02-6192.

United States Court of Appeals, Second Circuit.

Argued: February 26, 2003.

Decided: May 28, 2003.

Jeffrey S. Trachtman, Kramer Levin Naftalis & Frankel LLP, New York, NY; (James M. Baker, Christoper J. Bowes, Michelle R. Duran, Kenneth Rosenfeld, Center for Disability Advocacy Rights, Inc, New York, NY; Matthew J. Chachere, Northern Manhattan Improvement Corp. Legal Services, New York, NY, on the brief) for Plaintiffs-Appellants Elisa Encarnacion o/b/o Arlene George; Ana Felipe o/b/o Victoria Felipe; Margarita Guzman o/b/o Eric Garcia; Sandra Perez o/b/o Maurice Perez; and all others similarly situated.

Susan D. Baird, Assistant United States Attorney (James B. Comey, United States Attorney for the Southern District of New York, Gideon A. Schor, Assistant United States Attorney, on the brief) for Defendant-Appellee Jo Anne B. Barnhart, Commissioner of Social Security.

Richard P. Weishaupt, Jonathan M. Stein, Robert Lukens, Community Legal Services, Inc., Philadelphia, PA; Ira Burnim, Jennifer Mathis, Judge David L. Bazelon Center for Mental Health Law, Washington, D.C., for Amici Curiae American Psychiatric Association, National Mental Health Association, National Alliance for the Mentally Ill, American Orthopsychiatric Association, Children's Defense

Fund, Children's Rights Inc., & New York State Association of School Psychologists.

Before: STRAUB, KATZMANN, and RAGGI, Circuit Judges.

Circuit Judge RAGGI concurs in a separate opinion.

KATZMANN, Circuit Judge.

The Plaintiffs are parents, appearing on behalf of their own minor children as well as a proposed class of similarly situated children, all of whom have sought and were denied benefits under the federal Supplemental Security Income for the Aged, Blind, and Disabled program, 42 U.S.C. §§ 1381-1383f (2000) ("SSI"). The Social Security Administration ("SSA") administers the SSI program and issues regulations setting out guidelines for determining eligible claimants. SSA's regulations currently provide that claimants under the age of 18 shall be analyzed according to how well the child is capable of performing, relative to other children of comparable age, in six distinct "domains" of functioning. Only claimants who exhibit "marked" limitations in two domains, or an "extreme" limitation in a single domain, may be found eligible. The parties agree that SSA has an informal policy, essentially an interpretation of its own regulations, under which multiple limitations, each of which are less severe than "marked," cannot be added together across domains to serve as the equivalent of a single "marked" or "extreme" limitation. The complaint below alleged that, as a result of this policy, SSA failed to find that the plaintiffs suffered from two marked or one extreme limitation. The plaintiffs allege further that the SSA's interpretation is an unreasonable reading of the statute; specifically, that it is contrary to a statutory provision directing that "the combined impact of [all of the claimants's] impairments shall be considered throughout the disability determination process." 42 U.S.C. § 1382c(a)(3)(G). We agree with the plaintiffs that the SSA's policy would be contrary to the statute if the SSA gave no weight to some of a claimant's impairments in appraising the claimant's level of disability. Because, however, we determine that the regulations provide sufficient consideration of "the combined impact" of multiple impairments within individual domains, we affirm.

BACKGROUND

The Statute and Regulations Prior to 1996

Congress's 1972 overhaul of the Social Security Act produced the Supplemental Security Income ("SSI") program, an ambitious network of transfer payments to needy individuals who, for various reasons, were unable to work. Pub L. No. 92-603, § 301, 86 Stat. 1329, 1465 (1972) ("the Act"). Although the predominant focus of the legislation was benefits for adults, Congress included a provision making disabled children eligible for SSI payments, as well. Id., 86 Stat. at 1471.

The 1972 statute defined "disability" slightly differently for children and adults. An adult would be "considered to be disabled for the purposes of [SSI] if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental 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." Id. (codified as amended at 42 U.S.C. § 1382c(a)(3)(A)). A child under 18 would be considered disabled, however, "if he suffers from any medically determinable physical or mental impairment of comparable severity" to that which would disable an adult. Id.

The Social Security Administration, which was charged with administering SSI, designed a multi-stage process for determining whether an adult was disabled under the statute. See Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). In general, the Commissioner first asked whether the applicant was engaged in any substantial gainful activity. Id. If so the applicant was statutorily ineligible for benefits. The Commissioner then attempted to determine whether the claimant's disability was "below a threshold level of medical severity," id. at 149 n. 3, 107 S.Ct. 2287, such that it could not plausibly leave an applicant unable to engage in gainful activity. Id. at 141, 153, 107 S.Ct. 2287. The Supreme Court described the remaining stages of the process:

If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity. [20 C.F.R. §§ 404.1520(d), 416.920(d) (1986)]. If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents the claimant from performing work he has performed in the past. If the claimant is able to perform his previous work, he is not disabled. [Id. §§ 404.1520(e), 416.920(e)]. If the claimant cannot perform this work, the fifth and final step of the process determines whether he is able to perform other work in the national economy in view of his age, education, and work experience. The claimant is entitled to disability benefits only if he is not able to perform other work. [Id. §§ 404.1520(f), 416.920(f)].

Yuckert, 482 U.S. at 141-42, 107 S.Ct. 2287.

After a delay of several years, SSA at length issued regulations for identifying disability in children. See Sullivan v. Zebley, 493 U.S. 521, 537 n. 19, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990); see also S.Rep. No. 94-1265, at 24-25, reprinted in 1976 U.S.C.C.A.N. 5997, 6018-19 (discussing SSA's failure to issue meaningful regulations for childhood disability). Its formulation was "an abbreviated version of the adult test." Zebley, 493 U.S. at 526, 110 S.Ct. 885. After screening for gainful activity and non-severe impairment, the SSA asked only whether the child's impairments "matche[d] or medically equal[ed]" its listing of impairments that would presumptively disable a child. Id. (citing 20 C.F.R. §§ 416.924(b)(2), (3) (1989)). If a child did not qualify under those listings, he or she was denied benefits. Id.

SSA's disability-determination process for children underwent a pair of significant changes prior to 1996. The first arose out of Congress's response to SSA's policy towards individuals suffering from multiple impairments. In a regulation enacted in 1982, the Secretary announced that where a claimant had multiple impairments, SSA would consider whether those impairments in combination prevented the claimant from working only if each one of the impairments individually was above the "severe" threshold. See Kolodnay v. Schweiker, 680 F.2d 878, 880 (2d Cir.1982) (citing 20 C.F.R. § 416.922 (1982)). At the same time, the SSA ruled that it would not find that a claimant was "severely" disabled unless he or she had at least one impairment that in itself was severe.¹ See Dixon v. Heckler, 589 F.Supp. 1494, 1508 (S.D.N.Y.1984) (citing Soc. Sec. Ruling 82-55). The effect of the two decisions was that SSA gave no consideration to individual impairments that were less than "severe." Congress ultimately rejected both regulations, finding that "[SSA's] policy may preclude realistic assessment of those cases involving individuals who have several impairments which in combination may be disabling." H.R. Conf. Rep. 98-1039, at 30, reprinted in 1984 U.S.C.C.A.N. 3080, 3087-88. It therefore enacted a new provision, providing that:

In determining whether an individual's physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under this section, the Commissioner of Social Security shall consider the combined effect of all of the individual's impairments without regard to whether such impairment, if considered separately, would be of such severity.... [T]he combined impact of the impairments shall be considered throughout the disability determination process.

42 U.S.C. § 1382c(a)(3)(G) (2000).

SSA's second major revision followed the Supreme Court's decision in Zebley, in which the Court held that SSA's child disability regulations failed to "carry out...