"non-combination" policy, Defendant is entitled to
judgment as a matter of law.
The parties' dispute focuses on the analytical methodology employed by
the Commissioner in the functional limitation phase of the disability
analysis (Plaintiffs do not challenge the Commissioner's methodology for
evaluating impairments in determining "listing" status or medical
equivalence). Defendant does not dispute Plaintiffs' contention that the
Commissioner employs the so-called "non-combination" policy — one
that, for functional capacity based disability determinations, precludes
combined consideration, across different "areas" of functioning, of
limitations that are less than "marked." The parties, moreover, agree
that the legislative history of the Act and pertinent regulations are
relevant to analyzing the lawfulness of the "non-combination" policy. The
disputes between the parties go to the degree of deference this Court
owes the Commissioner in reviewing that policy and whether, under the
appropriate standard of review, the Commissioner's policy can be found to
constitute a violation of the Act and regulations promulgated
Standard of Deference
The starting point for the Court's analysis is the degree of deference
the Court owes the Commissioner's interpretation of the Act. Under
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., a court
reviewing an agency's construction of the statute it administers must
ask, first, whether Congress has directly spoken to the precise question
at issue. Id., 467 U.S. 837, 842 (1984). If the intent of Congress is
clear, the inquiry ends, "for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress" Id. 467 U.S. at
843. If, however, "the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the agency's answer
is based on a permissible construction of the statute." Id. "[A] court
may not substitute its own construction of a statutory provision for a
reasonable interpretation made by the administrator of an agency." Id. at
844. "[L]egislative regulations are given controlling weight unless they
are arbitrary, capricious or manifestly contrary to the statute," and
considerable weight is afforded to an executive department's construction
of a statutory scheme it is entrusted to administer. Id.; Catskill
Mountains Chapter of Trout Unlimited., Inc. v. City of New York,
273 F.3d 481, 491 (2d Cir. 2001).
Plaintiffs assert that the Commissioner's "non-combination" policy is
not entitled to Chevron deference because it is an informal, internal,
covert, policy that was not subject to the rigors of formal rule-making.
Plaintiffs argue not only that Chevron-style deference should not apply
but further assert that, because the policy was kept from the public
(that is, not clearly stated in the 1997 interim final regulations and
mentioned only in introductory remarks to the 2001 final regulations*fn10),
it is not even entitled to the lower degree of respect accorded
interpretations found in
opinion letters, policy statements, agency
manuals, enforcement guidelines and the like. See, generally, Christenson
v. Harris County, 529 U.S. 576, 587 (2000) (interpretations contained in
formats such as opinion letters entitled to respect but only to extent
they have the power to persuade); Catskill Mountains, 273 F.3d at
490-91. Plaintiffs contend that the Commissioner's method of applying the
disability standard is not entitled to any deference because it was
covert and is not set forth in the regulations.
The 1996 PRWORA amended the Social Security Act to define "disabled,"
with respect to children, as follows:
(i) an individual under the age of 18 . . . be
considered disabled for the purposes of this title
if that individual has a medically determinable
physical or mental impairment, which results in
marked and severe functional limitations, and
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 12 months.
(ii) Notwithstanding clause (i), no individual under
the age of 18 who engages in substantial gainful
activity . . . maybe considered disabled.
PRWORA, Pub. L. 104-193, 110 Stat. 2105, § 211(a)(4) (Aug. 22,
1996), codified at 42 U.S.C.A § 1382c(a)(3)(C) (West 1992 & Supp.
2001). Congress directed the Commissioner to implement regulations to
implement the amendments. 42 U.S.C.A. § 1382 (West 1992 & Supp.
2001). In response, the Commissioner promulgated interim final rules in
February of 1997 which provided that, to be found disabled for purposes
of receiving benefits, a child must (1) not be working and performing
substantial gainful activity, (2) show that she or he has a "severe"
impairment or combination of impairments, and (3) show that such
impairment(s) meets, medically equals, or functionally equals the
severity of an impairment(s) in the listings. See 20 C.F.R. § 416.924,
416.924(b), 416.924(c), 416.924(d) (1998). Functional equivalence
could be found, among other means,
by evaluating the effects of [a child's] impairment(s)
in broad areas of development or functioning such as
social functioning, motor functioning or personal
function . . . and determin[ing] if [the] functional
limitations are equivalent in severity [to the
listings] . . . .
20 C.F.R. § 416.926a(b)(2) (1998). The regulation continued: "If [a
child has] extreme limitations in one area of functioning or marked
limitation in two areas of functioning, [the Commissioner] will find that
[a child's] impairment(s) is functionally equivalent in severity to a
listed impairment," thereby satisfying the new definition of childhood
disability Id. (emphasis added).