The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge
OPINION AND ORDER ON MOTION TO DISMISS AND FOR JUDGMENT ON THE
PLEADINGS AND ON MOTION FOR CLASS CERTIFICATION
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
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)).
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.