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Encarnacion ex rel George v. Astrue

June 4, 2009

ELISA ENCARNACION, ON BEHALF OF ARLENE GEORGE, ANA LORA, ON BEHALF OF MICHELLE TAVARES, HORTENSIA LACAYO, MATTHEW LACAYO, AND ROSA VELOZ, ON BEHALF OF BEN-HAMIR COLLADO, PLAINTIFFS-APPELLANTS,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT-APPELLEE.



SYLLABUS BY THE COURT

The U.S. District Court for the Southern District of New York (Swain, J.) granted summary judgment to the Commissioner of Social Security, upholding the Commissioner's implementation of the Social Security Act's provisions for determining children's eligibility for Supplemental Security Income Benefits. The plaintiffs appealed. Pursuant to Skidmore v. Swift & Co., 323 U.S. 134 (1944), we hold that the agency's interpretation of the Act is persuasive and therefore should be upheld.

AFFIRMED.

The opinion of the court was delivered by: McLAUGHLIN, Circuit Judge

Argued: December 11, 2008;

Last Submission: February 24, 2009

Before: McLAUGHLIN, WESLEY, and HALL, Circuit Judges.

The plaintiffs represent a putative class of children whose parents claim that the Commissioner of Social Security (the "Commissioner") has implemented a policy (the "Policy") that excludes some children from eligibility for Supplemental Security Income Benefits ("SSI Benefits") in a manner that violates the Social Security Act (the "Act") and the Commissioner's own regulations. Pursuant to those regulations, childhood disability is determined by evaluating applicants within six domains of functioning, such as the child's ability to acquire and use information. Children are eligible for benefits if they have at least two "marked" limitations on their functioning within these domains or at least one "extreme" limitation. Under the Policy, the combined effect of a child's multiple mental or physical impairments may be deemed a marked or extreme limitation if the limitation occurs within a single domain. But the Policy prohibits the Social Security Administration (the "SSA") from considering the combined effects of limitations in different domains. Thus, the SSA will not adjust a less-than-marked limitation in one domain based on limitations in other domains.

The plaintiffs maintain that the Policy violates the Act's command that the SSA consider the combined effects of a child's impairments "throughout the disability determination process."

42 U.S.C. § 1382c(a)(3)(G). They also claim that the Policy violates a nearly identical provision in the Commissioner's regulations. The district court disagreed and granted summary judgment to the Commissioner. We AFFIRM.

BACKGROUND

This is the second time we have addressed the plaintiffs' claims. We provide an abbreviated version of the extensive background, including the relevant statutory and regulatory history, recounted in our prior decision, Encarnacion ex rel. George v. Barnhart, 331 F.3d 78, 80-86 (2d Cir. 2003) ("Encarnacion I").

The Act provides for SSI Benefits to disabled children as well as adults. See Pub. L. No. 92-603, § 301, 86 Stat. 1329, 1471, 1473 (1972). The Commissioner has authority to promulgate regulations to determine eligibility for SSI Benefits. See 42 U.S.C. § 405(a). In 1984, Congress added to the Act a provision that applies to all disability determinations (whether for children or adults), which instructs:

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 [for SSI Benefits], the [Commissioner] shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity. If the [Commissioner] does find a medically severe combination of impairments, the combined impact of the impairments shall be considered throughout the disability determination process.

Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 98-460, § 4, 98 Stat. 1794, 1800 (codified at 42 U.S.C. § 1382c(a)(3)(G)). In 1985, the SSA adopted a regulation that repeats this statute nearly verbatim. See Disability Insurance and Supplemental Security Income; Determining Disability and Blindness; Multiple Impairments, 50 Fed. Reg. 8,726, 8,729 (Mar. 5, 1985)(codified at 20 C.F.R. § 416.923). These two provisions are central to the plaintiffs' claims in this case.

The Commissioner's regulations for determining a child's eligibility for SSI Benefits have undergone many amendments. One important change came as a result of the Supreme Court's decision in Sullivan v. Zebley, 493 U.S. 521 (1990). There, the Supreme Court held that the SSA regulations for determining whether a child is disabled, which permitted benefits to children only if their impairments matched or medically equaled specific impairments listed in an appendix to the SSA's regulations, were an impermissible implementation of the Act. See id. at 526, 541. The regulations did not permit a child claimant to ...


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