Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Representing children in SSI claims can be frustrating on a number of levels.  One recurring theme might be the case where a child has number of “moderate” limitations in several domains.  It may be apparent to the advocate that those moderate limitations are equivalent to the two “marked” or one “extreme” limitations necessary to be found functionally equivalent to a listed impairment under the Commissioner’s regulations.  But this concept of “adding up” or combining moderate limitations to make a “marked” is not permitted under the current childhood SSI regulations. This policy was challenged as a violation of the Social Security Act’s mandate that SSA consider the combined effects of child’s impairments “throughout the disability determination process.” 42 U.S.C. §1382c(a)(3)(G).  It was, however, upheld in Encarnacion ex rel. George v. Barnhart, 331 F.3d 78 (2d Cir. 2003) (“Encarnacion I ”).

In Encarnacion I, the Court of Appeals “left open, however, the possibility of a later suit alleging that: (1) the Commissioner did not, in fact, permit the SSA to “adjust the level of a claimant’s limitation within one or two domains to ‘look comprehensively’ at the claimant and account for the ‘interactive and cumulative effects’ of limitations in other domains,” or (2) the domains insufficiently account for significant aspects of childhood functioning.  See Encarnacion I 331 F. 3d at 89 & n. 7 (citations omitted).

Plaintiffs took up that challenge and in 2003 filed Encarnacion II, alleging that the Commissioner’s policy prevents SSA from adding together less-than-marked limitations from separate domains and prohibits SSA from adjusting the level of limitation in one domain to reflect the impact of limitations in other domains.  Despite the Second Circuit’s invitation to bring this challenge, it recently upheld the District Court’s denial of the claims.  In Encarnacion ex rel. George v. Astrue, 568 F.3d 72 (2d Cir. 2009) (“Encarnacion II”), the Court deferred to the Commissioner’s interpretation of focusing on combined impairments within each domain rather than across domains.  It held that the Commissioner’s interpretation satisfies the test that each of a claimant’s impairments be given at least some effect during each step of the disability determination process because SSA considers all impairments within each domain.

Despite this disappointing ruling in Encarnacion II, advocates should keep in mind that the new Social Security Rulings governing the evaluation of functional equivalency in children may prove helpful in convincing adjudicators to pay more attention to the combined effect of a child’s impairments and limitations.  The 2009 SSRs, which are reviewed in the March 2009 edition of the Disability Law News, emphasize among other things that adjudicators should consider the extent to which one impairment can cause limitations in several domains. According to the SSRs, this “whole child” approach would not be considered “double-weighting.”  The 2009 SSRs are available at www.ssa.gov.