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March 29, 2002


The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge


This lawsuit, plead in relevant part as a class action, challenges the method by which the Commissioner of Social Security ("Commissioner" or "Defendant") determines disability in children for the purpose of awarding benefits under the Supplemental Security Income ("SSI") program, which is administered by the federal Social Security Administration ("SSA"). On January 11, 2002, this Court issued an opinion and entered orders denying a motion for consolidation of this action with a second, individual, action in which the plaintiff sought review of the Commissioner's denial of SSI benefits, dismissing that second action as moot in light of the Commissioner's proffer of full relief to the plaintiff therein, and granting Plaintiffs' motion to file a second amended complaint in this action adding two new proposed class representatives.*fn1

This opinion addresses Plaintiffs' motion for class certification and Defendant's motion to dismiss the complaint and for judgment on the pleadings to dismiss Plaintiffs' First Claim set forth in the Second Amended Complaint,*fn2 both of which motions were argued in November 2001.*fn3 The Court has considered carefully all arguments made in connection with the pending motions. For the reasons discussed herein, Plaintiffs' motion for class certification will be denied and Defendant's motion for judgment on the pleadings will be granted.


The following factual recitation is taken from Plaintiffs' Second Amended Class Action Complaint.

The Supplemental Security Income ("SSI") program provides cash assistance to low income individuals who are aged, blind, or disabled, including disabled children. To be eligible for SSI benefits, a child must meet income and resource eligibility requirements and be under 18 and disabled. Prior to 1996, the Social Security Act (the "Act") defined disability for children in relation to its definition of disability for adults, finding disability in a child if he or she suffered from any medically determinable physical or mental impairment of "`comparable severity'" to an impairment that would render an adult disabled. (Compl. at ¶ 29 (quoting 42 U.S.C. § 1382c(a)(3)(A)).) From 1974-1990, pursuant to the Commissioner's regulations implementing the Act, SSI benefits were provided only for those children whose condition met or medically equaled one of the impairments enumerated in a "Listing of Impairments," published in the regulations (the "listings"). In February of 1990, however, the Supreme Court held that the regulations the Commissioner used to determine childhood disability failed to implement the comparable severity standard established by the Act because the "`listings-only'" approach was more restrictive than the statutory standard for adults and because it failed to provide an "`individualized, functional analysis'" (if the degree of disability. (Compl. at ¶ 31 (quoting Zebley v. Sullivan, 493 U.S. 521 (1990)).)

In response to the Zebley decision, the Commissioner promulgated new regulations regarding the comparable severity standard. Under the regulations, which went into effect in 1993, childhood disability determinations commenced, as before, with an examination of whether the child's impairments met or medically equaled a listing. If they did not, the Commissioner then conducted an "individualized functional assessment" ("IFA"), by which it was determined whether a child's impairment(s) in (depending on age) five or six developmental or functional "domains" rendered the child disabled. Limitations in each of the domains were labeled "mild," "moderate," or "marked." A child whose IFA showed a "marked" limitation in one domain and a "moderate" limitation in another domain, or "moderate" limitations in three domains, was to be considered disabled. The Commissioner had the flexibility to factor in mild limitations as well: the "`one marked plus one moderate'" or "`three moderate'" standards were "`only guidelines to illustrate severity.'" (Compl. at ¶ 33 (quoting 20 C.F.R. § 416.924e(a) (1993)).) Using those guidelines, the Commissioner decided disability claims on a case-by-case basis, by taking into account all relevant evidence in the record. (Compl. at ¶ 33 (citing 20 C.F.R. § 416.924e(a) (1993)).)

In 1996, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA"), which directed the Commissioner to discontinue use of the IFA and to apply a new disability standard in making new childhood disability determinations and in redetermining eligibility of children who had been found to be disabled under the earlier (1993) regulations. The PRWORA changed the Act's definition of a disabled child: "An individual under the age of 18 shall be considered disabled for purposes of this title if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations . . . ." (Compl. at ¶ 37 (quoting 42 U.S.C. § 1382c(a)(3)(C)).) In response to the PRWORA, the Commissioner established a new standard for determining childhood disability in regulations issued in 1997. As under the prior regulations, a child is eligible for disability benefits if his or her impairments meet or medically equal a listing, and age and income requirements are satisfied. If the impairments do not meet or medically equal a listing, the 1997 regulations require that the Commissioner determine whether the child has an impairment that "functionally equals" a listed impairment, rather than assessing functional impairment by conducting an IFA. (Compl. at ¶ 38 (citing 20 C.F.R. § 416.924 (d), 416.926a(a)).) A child satisfies this criterion if he or she has the requisite number and degree of limitations in one or more of certain "`broad areas of development or functioning.'" (Compl. at ¶ 38 (quoting 20 C.F.R. § 416.926a(b)(2)).) Instead of the "one marked plus one moderate," or three moderate" limitations required by the earlier regulations, the 1997 regulations require that a child demonstrate an "extreme" limitation in one broad area or "marked" limitations in any two of the identified areas of development or functioning to be eligible for disability benefits.*fn4

The Act requires that the Commissioner "`consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be [the basis of eligibility]'" in assessing both adult and child claimants. (Compl. at ¶ 25 (quoting 42 U.S.C. § 1382c(a)(3)(G)).) The House Conference Report accompanying passage of the PRWORA indicated that it was expected

that SSA will . . . ensure that the combined effects of all the physical or mental impairments of an individual under age 18 are taken into account in making a determination regarding eligibility under the definition of disability. The conferees note that the 1990 Supreme Court decision in Zebley established that SSA had previously been remiss in this regard. . . . The conferees do not intend to limit the use of functional information, if reflecting sufficient severity and is otherwise appropriate.

(See Compl. at ¶ 40 (quoting H.R. Conf. Rep. 104-725, 104th Cong., 2nd Sess. 1996 at 748-49, reprinted in 1996 U.S. Code Cong. & Ad. News 2649).) The 1997 regulations also indicate: that the combined effect of all impairments will be considered, regardless of whether any impairment would suffice if considered separately (Compl. at ¶ 43 (quoting 20 C.F.R. § 416.923)); that a child under age 18 will be considered disabled if he or she has a medically determinable physical or mental impairment or "`combination of impairments that causes marked and severe functional limitations, . . . .'" (Compl. at ¶ 44 (quoting 20 C.F.R. § 416.906) (modification from original not reprinted)); and that the combined effects upon overall health and functioning of all of a claimants's impairments will be considered (Compl. at ¶ 45 (quoting 20 C.F.R. § 416.924 (a)).

Adjudicators of childhood disability claims are instructed that there should be no adding or combining of less than "marked" functional limitations imposed by the child's impairment for a finding of disability under the 1997 regulations. (Compl. at ¶ 47 (citing Social Security Administration, Childhood Disability Training: Student Manual, Pub. No. 64-075 (Mar. 1997) (the "Manual"), at 15 (attached to Compl. as Ex. A)).)*fn5 Training materials relating to the administration of the 1997 regulations that were provided to adjudicators in March 1998 do not provide a method to evaluate the effects of less than "marked" limitations in combination with "marked" or other "moderate" or "mild" limitations. (Id. at ¶ 48.)

Plaintiffs' First Claim of the Second Amended Complaint contends that the Commissioner's "practice and policy, in making childhood disability determinations, of refusing to consider the effects of any impairments that impose less than marked limitations" violates the Act and the SSA regulations promulgated thereunder, and "deprives the named plaintiffs and members of the class of SSI benefits to which they are entitled."*fn6 (Compl. at ¶ 68.) Characterizing their challenge as one to the Commissioner's policy (or implementation of the statutory and regulatory standards) rather than to the text of the regulations, Plaintiffs argue that the "non-combination" policy is inconsistent both with the statute and with the regulations. In their Second Claim, Plaintiffs contend that the SSA's denials of disability benefits to the individual named claimants were infected by other errors of law.*fn7

Plaintiffs seek declaratory and injunctive relief, including the discontinuation of the Commissioner's "non-combination" policy and practice, the adoption of regulations ensuring full consideration of the combined effects of all impairments, the immediate review of all unfavorable determinations made pursuant to the PRWORA and 1997 regulations in which SSA adjudicators failed to consider the effects of impairments that imposed less than "marked" limitations of function, and the reinstatement of SSI disability benefits for all class members who received benefits prior to the enactment of the PRWORA and who were found no longer disabled under the PRWORA and 1997 regulations.



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