DON M. NEWMAN, ACTING SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER V. BRIAN ZEBLEY, ET AL. No. 88-1377 In the Supreme Court of the United States October Term, 1988 The Solicitor General, on behalf of the Acting Secretary of Health and Human Services, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit PARTIES TO THE PROCEEDING Petitoner is the Acting Secretary of Health and Human Services. The respondents are plaintiff Brian Zebley and intervenors Evelyn Raushi and Joseph Love, Jr., representing a class, certified by the district court, of "(a)ll persons who are now, or who in the future will be, entitled to an administrative determination (whether initially, on reconsideration or on reopening) as to whether supplemental security income benefits are payable on account of a child who is disabled" (App., infra, 6a). TABLE OF CONTENTS Question Presented Parties to the Proceeding Opinions below Jurisdiction Statutory and regulatory provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-20a) is reported at 855 F.2d 67. The memorandum and order of the district court (App., infra, 21a-24a) are reported at 642 F. Supp. 220. JURISDICTION The judgment of the court of appeals was entered on August 10, 10, 1988. A petition for rehearing with suggestion for rehearing en banc was denied on October 18, 1988. App., infra, 25a. On January 9, 1989, Justice Brennan extended the time for filing a petition for a writ of certiorari to and including February 15, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED 42 U.S.C. 1382c(a)(3)(A) provides in pertinent part: An individual shall be considered to be disabled * * * if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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 twelve months (or, in the case of a child under the age of 18, if he suffers from any medically determinable physical or mental impairment of comparable severity). 42 U.S.C. 1382c(a)(3)(B) provides in pertinent part: For purposes of subparagraph (A), an individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy * * *. 20 C.F.R. 416.924 provides: We will find that a child under age 18 is disabled if he or she -- (a) Is not doing any substantial gainful activity; and (b) Has a medically determinable physical or mental impairment(s) which compares in severity to any impairment(s) which would make an adult (a person age 18 or over) disabled. This requirement will be met when the impairment(s) -- (1) Meets the duration requirement; and (2) Is listed in Appendix 1 of Subpart P of Part 404 of this chapter; or (3) Is determined by us to be medically equal to an impairment listed in Appendix 1 of Subpart P of this chapter. QUESTION PRESENTED Whether Social Security disability regulations that base the determination whether a child is disabled exclusively on medical factors without also considering vocational factors used for adults are inconsistent with 42 U.S.C. 1382c(a)(3)(A), which provides that a child under the age of 18 shall be considered disabled if he suffers from "any medically determinable physical or mental impairment of comparable severity" to one that would entitle an adult to benefits. STATEMENT 1. Supplemental Security Income (SSI) is available to certain persons who are "disabled." An adult is disabled if he or she "is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. 1382c(a)(3)(A). A child under 18 is disabled "if he suffers from any medically determinable physical or mental impairment of comparable severity." Ibid. (emphasis added). The Secretary has developed a five-part test to determine whether an adult filing a claim for benefits is disabled. /1/ This test gives an adult three basic ways to show disability. First, if the claimant can show that he suffers from one of the "listed impairments" set forth in the regulations, with associated clinical symptoms and a specified degree of severity, he is presumed disabled. 20 C.F.R. 416.920(d), 416.925. /2/ Second, a claimant who can show the "medical equivalent" of a listed impairment also benefits from a presumption of disability. 20 C.F.. 416.920(d), 416.926. Finally, if the claimant has neither a listed impairment nor its medical equivalent, the Secretary will examine his "residual functional capacity" to determine if the claimant can perform his relevant past work or -- given the claimant's age, education and work experience -- whether he can perform other work in the national economy. 20 C.F.R. 416.920(e) & (f), 416.945. Children are evaluated on a slightly different standard. Like adults, children must not be engaged in substantial gainful activity and must suffer from an impairment likely to last at least 12 consecutive months. 20 C.F.R. 416.924. In addition, a child is presumed disabled if he suffers from one of the listed impairments used for adults, to the extent that "the disease processes have a similar effect on adults and younger persons." 20 C.F.R. 416.924(b)(2), 416.925(b). Children can also show the medical equivalent of one of the listed impairments. 20 C.F.R. 416.924(b)(2); 416.925(b). Unlike adults, however, children are not evaluated on the basis of their capacity to perform prior work or substantial gainful employment in the national economy. Instead, children are covered by an additional list of impairments beyond that provided for adults and may establish the existence of one of these impairments or its medical equivalent. Thus, the regulations provide a two-part list of impairments. Part A applies to adults and children alike, while Part B applies to children under 18 alone. 20 C.F.R. 416.925(b). 2. Brian Zebley suffers from congenital brain damage with spastic right hemiparesis, mental retardation, developmental delay, eye problems and musculoskeletal impairments on the right side (App., infra, 5a). He received SSI disability benefits from age two for a little over 28 months. In 1982, his benefits were terminated on the grounds that the then-current medical evidence demonstrated that he "no longer met or equaled the requirements of any section of the Listing of Impairments at Appendix 1" (ibid.). When administrative review failed to revive his benefits, Zebley initiated this combined individual/class action suit in the district court. On his own behalf, Zebley alleged that his benefits had been terminated without substantial evidence. Zebley also claimed, on behalf of the class, that "the Secretary's policy and regulations violated * * * 42 U.S.C. 1382c(a)(3)(A)" because the Secretary refused "to consider all pertinent facts and medical and vocational factors in determining children's eligibility for SSI disability payments" (App., infra, 6a). In January, 1984, the district court certified a class consisting of "(a)ll persons who are now, or who in the future will be, entitled to an administrative determination (whether initially, on reconsideration, or on reopening) as to whether supplemental security income benefits are payable on account of a child who is disabled, or as to whether such benefits have been improperly denied, or improperly terminated, or should be resumed" (App., infra, 6a). The district court granted Zebley's motion for partial summary judgment on his individual claim and remanded to the Secretary for calculation and award of benefits (App., infra, 6a). The district court also remanded the individual claims of two named intervenors to the Secretary for further review (ibid.). The district court then granted the Secretary's motion for partial summary judgment and dismissed the claims of the plaintiff class challenging the regulations. Relying principally on decisions from the First and Eleventh Circuits rejecting similar challenges to the same regulations, Hinckley v. Secretary of Health & Human Services, 742 F.2d 19 (1st Cir. 1984); Powell v. Schweiker, 688 F.2d 1357 (11th Cir. 1982), the district court concluded (App., infra, 24a) that "the Secretary's listings of impairments * * * (are) not facially invalid or incomplete, seems to provide the necessary flexibility, and, in my view, permits the award of benefits in conformity with the intent of Congress." "If these criteria are being misapplied or misinterpreted," the court noted (ibid.), "the remedy lies in the appeal process in individual cases, not in a class-action decree." 3. The Secretary did not appeal from that portion of the judgement disposing of the individual claims of Zebley and the named intervenors. Plaintiff appealed, however, from the judgement upholding the Secretary's regulations, and the court of appeals reversed and remanded the case to the district court, with directions to enter summary judgment in favor of the plaintiff class. The court stated (App., infra, 11a) that Congress "expressed unambiguously its intent that 'any' impairment which meets the statutory standard shall be found disabling." The court noted that children are limited to establishing a presumption of disability under the listed impairments, while the adult standard provides for "individualized assessment of the actual degree of functional impairment of adults whose medical findings do not entitle them to a presumption of disability by meeting or equaling the listings." App., infra, 12a (emphasis in original). Because the listed impairments had not been shown to be an exhaustive compilation of medical conditions that could satisfy the statute, the court held that the standard used for children violates the "clearly expressed" intent of Congress "that children be given the opportunity for individual evaluations comparable to the residual functional capacity assessment for adults" (App., infra, 17a). The court of appeals acknowledged (App., infra, 16a) that its decision "places us in the minority among courts which have considered the legality of these regulations." The court, however, found the decisions of these other courts unconvincing. Specifically, the court rejected (App., infra, 12a) the Eleventh Circuit's conclusion in Powell, 688 F.2d at 1360, that the listing of children's impairments in Part B established criteria sufficiently "comparable to vocational factors for adults" to satisfy Congress's "comparable severity" requirement. The court below concluded (App., infra, 13a) that not all impairments of "comparable severity" would be identified by the listings for children and that this shortfall was contrary to Congress's expressed intention that "'any' impairment which meets the statutory standard shall be found disabling." The court also rejected (App., infra, 13a) the First Circuit's conclusion in Hinckley, 742 F.2d at 23, that the Secretary's regulation "allows for an assessment of a child's mental or physical limitations on an individual basis by providing that a child may be found disabled if his impairment 'is determined by (the Secretary) to be medically equal to an impairment listed in (the Appendix).'" The court below noted (App., infra, 13a) that medical equivalence to a listed impairment was based only on medical findings whereas "it is functional impairment which is meant to be evidenced by the medical findings." An individualized determination of functional impairment is therefore "necessary in order to determine whether the degree of a claimant's impairment satisfies the statutory standard for disability" (ibid.). of the impairments, and these have been considered." Id. at 14,706. The Secretary provided for an individualized assessment of each child by allowing children to qualify for benefits by showing the medical equivalent of any of the Part B listings. See Hinckley, 742 F. 2d at 23. Furthermore, some of the Secretary's listings in Part B specifically call for a general assessment of a child's functional capacity. See, e.g., 101.03C ("(i)nability to perform age-related personal self-care activities involving feeding, dressing, and personal hygiene"); 111.06 ("Persistent disorganization or REASONS FOR GRANTING THE PETITION Congress has not specified how the Secretary is to determine whether a child has a disability of "comparable severity" to one that would entitle an adult to receive disability benefits. The circumstances of adults and children applying for disability benefits are obviously different, since it makes no sense to measure the ability of a two-year-old child to perform substantial gainful employment in the national economy. It is clear that Congress did not intend to mandate such an inquiry, but instead directed the Secretary to determine the best way to correlate children's disabilities with adult disabilities, taking into account the obvious differences between the two categories of claimants. The court of appeals has struck down a reasonable attempt by the Secretary to do just that. In the process, it has placed itself in direct conflict with two other courts of appeals that have upheld the regulations in question. Furthermore, since the district court certified a nationwide class of "all people who are now, or who will be" entitled to children's SSI benefits, the court of appeals has apparently taken upon itself to overrule those two circuits and to preempt other circuits in which the issue is currently pending. The result will be a substantial disruption of the SSI program, requiring readjudication of hundreds of thousands of cases in accordance with a yet unformulated and, it would appear, highly speculative standard. 1. The court of appeals stated (App., infra, 11a) that "Congress has expressed unambiguously its intent that 'any' impairment which meets the statutory standard shall be found disabling." That is true; but it begs the question at issue: What is the statutory standard applicable to children? Congress did not say when it first extended the disability program to children in 1972. See Social Security Amendments of 1972, Pub. L. No. 92-603, Section 301, 86 Stat. 1471. The crucial term, "comparable severity," is left undefined in the statute. Congress itself recognized this fact, and subsequently charged the Secretary with the responsibility to "publish criteria to be employed to determine disability (as defined in (42 U.S.C. 1382c(a)(3)(A)) of the Social Security Act) in the case of persons who have not attained the age of 18." Unemployment Compensation Amendments of 1976, Pub. L. No. 94-566, Section 501(b), 90 Stat. 2685. The Secretary has done so in a reasonable manner, and his regulations should have been upheld. a. Congress has provided that an otherwise eligible adult is entitled to disability benefits "if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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 twelve months" (42 U.S.C. 1382c(a)(3)(A)). Congress did not apply this same test to children for the obvious reason that most children, by simple reason of their age, are already unable to engage in "any substantial gainful activity." For an otherwise eligible child under 18, Congress provided instead that he is eligible for benefits "if he suffers from any medically determinable physical or mental impairment of comparable severity" to an impairment that would entitle an adult to benefits. But Congress nowhere defined "comparable severity." 42 U.S.C. 1382c(a)(3)(A). With respect to an adult, Congress quite clearly mandated an inquiry into whether "his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy" (42 U.S.C. 1382c(a)( 3)(B)). But Congress recognized, and the House Report accompanying this provision explicitly noted, that such an inquiry could not be applied to children: (a)n individual (other than a child under age 18), would be found disabled if his impairments are so severe that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work* * *. H.R. Rep. No. 231, 92d Cong., 1st Sess. 148 (1971) (emphasis added). Congress thus left to the Secretary the task of formulating criteria for measuring children's disabilities pursuant to the Secretary's general authority to "adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits" in disability cases. 42 U.S.C. 405( a), 1383(d)(1). See Bowen v. Yuckert, No. 85-1409 (June 8, 1987), slip op. 6-7; Heckler v. Campbell, 461 U.S. 458, 466 (1983). Congress made this delegation even more explicit in 1976, in Section 501(b) of the Unemployment Compensation Amendments of 1976, Pub. L. No. 94-566, 90 Stat. 2685. These amendments expressly required the Secretary to "publish criteria to be employed to determine disability (as defined in (42 U.S.C. 1382c(a)(3)(A)) of the Social Security Act) in the case of persons who have not attained the age of 18." /3/ b. Where Congress expressly delegates to an agency the authority to interpret and implement a specific provision of a statute, "(s)uch legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-844 (1984). "If the agency regulation is not in conflict with the plain language of the statute, a reviewing court must give deference to the agency's interpretation of the statute." K Mart Corp. v. Cartier, Inc., No. 86-495 (May 31, 1988), slip op. 8. See also Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981). The Secretary -- recognizing that children ordinarily do not work and therefore, unlike adults, cannot have their disabling impairments evaluated under an ability-to-work standard -- has attempted to meet the "comparable severity" requirement by issuing, in addition to the adult list, a special list of disabling impairments that concentrates on childhood afflictions. This is a reasonable approach that satisfies both the language and intent of the statute. Congress did not direct that the criteria for determining disability of adults and children be identical, only that they be "comparable." As the term is commonly used, "comparable" does not require complete similarity, but only "enough similar characteristics or qualities to make comparison appropriate." See Dawson v. Myers, 622 F.2d 1304, 1311 (9th Cir. 1980). As the Eleventh Circuit noted in Powell, 688 F.2d at 1360, the regulations provide for an identical standard as to three salient points: the "duration" requirement, the listings in Part A, and medical equivalence to the listings. Of the five-part test used for adults (20 C.F.R. 416.920), the Secretary's children's standard omits only the last two: ability to do past work and ability to work-related factors cannot sensibly be applied to children, it was entirely reasonable for the Secretary to conclude that the "residual functional capacity" assessment used in applying these factors was inappropriate for children. The Secretary took into account a child's functional limitations in a different way, by promulgating a separate set of listings in Part B applicable only to children. These listings reflect the Secretary's analysis of the functional limitations of children's impairments, as well as the Secretary's analysis of what impairments are "comparable" to those of adults. In promulgating the regulations, the Secretary stated: "Those impairments which were determined to impact on the child's development to the same extent that the adult criteria have on an adult's ability to engage in substantial gainful activity were deemed to be of 'comparable severity' to the adult listing." 42 Fed. Reg. 14,705 (1977). The Secretary went on to note that "(t)he medical criteria proposed * * * do result in functional limitations or restrictions, depending on the nature deficit of motor function * * * which * * * interferes with age-appropriate major daily activities * * *"); 112.03 (psychosis resulting in "marked restriction in the performance of daily age-appropriate activities * * * (and) deficiency of age-appropriate self care skills"). Thus, claimants are given an opportunity to establish a functional limitation within the framework of a listed impairment or its medical equivalent. c. The court of appeals assumed that the Secretary's listing of impairments was incomplete because the regulations governing adults "provid(e) for individualized assessment of the actual degree of functional impairment of adults whose medical findings do not entitle them to a presumption of disability by meeting or equaling the listings." App., infra, 12a (emphasis in original). But just because the adult's listings are not exhaustive, it does not follow that the child's listings are themselves incomplete so as to violate the statutory directive to identify children's disabilities of "comparable severity" to those that would entitle an adult to benefits. As noted, the Secretary has supplied a special listing of a child's disabilities that takes into account the child's functional capacity. A child may establish his eligibility either by showing that he has one of these disabilities or its medical equivalent. This scheme is sufficiently broad and flexible to satisfy the statute, and the court of appeals erred in substituting its own interpretation of the statutory language for that of the Secretary. The court of appeals would require (App., infra, 17a) the Secretary to make "individual evaluations comparable to the residual functional capacity assessment for adults." Yet the court of appeals offered no suggestion as to how this was to be done. A case-by-case evaluation of whether a child, if he were an adult, would be disabled is wholly unworkable. Adults are evaluated on the basis of their age, education and work experience. Yet in making an individualized assessment of whether a child, if he were an adult, could engage in substantial gainful work, how old, how educated, and how experienced should the "hypothetical" adult be? The court of appeals offered no guidance as to how the residual functional capacity assessment for adults translates to the different circumstances of childhood. More fundamentally, the court of appeals offered no justification for substituting its broader standard for the standard promulgated by the Secretary, which itself is plainly a "permissible construction" of the Social Security Act. Chevron, 467 U.S. at 843. The Secretary's interpretation of the statute fully accords with the different purposes behind the disability programs for adults and children. The purpose of disability benefits for adults is to ensure "the basic means of replacing earnings that have been lost as a result of * * * disability" for those who "are not able to support themselves through work * * *." H.R. Rep. No. 231, supra, at 146-147. As this Court has noted, "(t)he Social Security Act defines 'disability' in terms of the effect a physical or mental impairment has on a person's ability to function in the workplace." Heckler v. Campbell, 461 U.S. 458, 459-460 (1983) (interpreting identical definition of disability in 42 U.S.C. 423). In light of this purpose, it is wholly appropriate for adults to be evaluated upon consideration of their functional capacity to perform work. By contrast, Congress had a different set of considerations in mind in providing for children's SSI benefits. Recognizing that disabled children from low-income households are "among the most disadvantaged of all Americans," Congress thought that special disability benefits would be appropriate for such children "because their needs are often greater than those of nondisabled children." H.R. Rep. No. 231, supra, at 147-148. Thus, the aim of Congress in establishing children's disability was not to replace lost income, but to provide for the special health care needs of disabled children, such as home health care expenses arising out of a child's medical impairment. It is entirely consistent with this purpose to focus consideration on the severity of the child's medical impairment, without consideration of vocational factors that could be applied only speculatively to a child too young to work in any event. /4/ 2. As the court of appeals expressly acknowledged (App., infra, 16a), its decision "places (it) in a minority among courts which have considered the legality of these regulations." In Powell v. Schweiker, supra, a divided panel of the Eleventh Circuit rejected a challenge identical to the one in the case at bar. The court held (688 F.2d 1360) that the standards for children, while different, are not more restrictive than the adult standards and are in fact "comparable" to those for adults in the ordinary meaning of that term. Not only are the standards identical as to three salient points -- the listings in Part A, the medical equivalence rule, and the duration requirement -- but the standards for children also provide an additional set of listings applicable only to children, some of which take into account the child's functional ability. Id. The court accordingly concluded (id. at 1361) that the Secretary's regulations constitute a "reasonable interpretation" of the statute that is entitled to deference. In Hinckley, the First Circuit also held (742 F.2d at 23) that "the Secretary's regulations (regarding children's disability) constitute a reasonable interpretation and application of the statutory definition of 'disability'." The court in that case noted (id. at 22) that Congress had clearly recognized that vocational factors used to determine an adult's ability to engage in "substantial gainful employment" are inappropriate for children. The court acknowledged that the statute still requires the Secretary to take into account "not only the nature of the impairment, but also its particular effect on the functional capacity of children" (id. at 23). The court concluded (ibid.), however, that the Secretary's current regulations satisfy this standard. The regulations not only provide an additional list of impairments designed specifically for children, but also allow for "an assessment of a child's mental or physical limitations on an individual basis" by permitting the child to show the medical equivalent of a listed impairment. Ibid. The court also pointed out (id. at 23 n.2) that "(s)everal of the impairments in Part B are themselves evaluated in terms of the child's functional capacity." Finally, the Court noted (id. at 23) that the plaintiffs were themselves unable to provide an alternative standard for weighing a child's age, education, and functional capacity. Under these circumstances, the court found no basis for "strik(ing) down the reasonable standard promulgated by the Secretary * * *." Ibid. /5/ The court of appeals in this case expressly rejected both Powell and Hinckley, finding neither decision "persuasive" (App., infra, 12a). The court below, however, did not simply create a split in the circuits. By virtue of the district court's certification of what appears to be a nationwide class of children's disability claimants, /6/ the court of appeals has apparently overridden the prior contrary decisions of the First and Eleventh Circuits. The court has also preempted the further development of the law in other circuits on this issue. Under these circumstances, review by this Court is plainly warranted. 3. The issue in this case is of considerable practical importance. Because a nationwide class was certified, the court of appeals' ruling would require reevaluation of a substantial number of cases. This suit was filed in 1983. The Department of Health and Human Services estimates that over a quarter of a million cases have applied the existing regulations to deny children's benefits between 1983 and 1988. Even aside from any additional benefits that may have to be paid when a new standard is applied to these cases, HHS estimates that the mere readjudication of these cases would cost over $41 million. /7/ Finally, the development of an entirely new standard "comparable" to the vocational factors used for adults would itself entail a substantial administrative endeavor. The court of appeals' ruling (App., infra, 20a) that the Secretary must give children "an opportunity for individualized assessment of (the severity) of their functional limitations" does not explain how this is to be done. Thus, the Secretary presumably would need to convene a panel of experts from the health care profession to aid in formulating a new standard and develop procedures and training programs to implement the new standard. If such a standard requires the use of child guidance experts similar to the vocational experts used in adult cases, implementation could be even more costly and time consuming. CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General JOHN R. BOLTON Assistant Attorney General THOMAS W. MERRILL Deputy Solicitor General MICHAEL K. KELLOGG Assistant to the Solicitor General JOHN F. CORDES MATTHEW M. COLLETTE Attorneys FEBRUARY 1989 /1/ The five-step evaluation is set forth at 20 C.F.R. 416.920. See Bowen v. Yuckert, No. 85-1409 (June 8, 1987). Step one determines whether the claimant is engaged in "substantial gainful activity." If so, benefits are denied. If the claimant is not engaged in such activity, the decisionmaker goes to step two, which asks whether the claimant's impairment or combination of impairments is "severe." If not, benefits are denied. Step three requires a determination whether the impairment is the same as or equivalent to a listed impairment. If so, the claimant is presumed disabled. At step four, the inquiry is whether the impairment prevents the claimant from doing his relevant past work. If the claimant cannot perform his relevant past work, the evaluation proceeds to step five, which decides whether the claimant can perform other work in the national economy in light of his age, education and work experience. /2/ The listed impairments appear in Appendix 1 to 20 C.F.R. Part 404, subpart P. /3/ The Senate Finance Committee, which added this provision to the Act, stated that it was designed to "end the present uncertainty which the State agencies and others have with regard to what constitutes disability for children." S. Rep. No. 1265, 94th Cong., 2d Sess. 25 (1976). Senate Finance Committee Chairman Bentsen explained: The current situation is that the only definition of disability applied for purposes of SSI eligibility relates to employability * * * a concept obviously irrelevant to children. * * * Section 501 requires (the Secretary) to issue a definition of disability as it relates to children. 122 Cong. Rec. 33,301 (1976). /4/ Despite extensive and comprehensive Congressional oversight of the SSI program and the standards for determining disability, see, e. g., Schweiker v. Chilicky, No. 86-1781 (June 24, 1988), slip op. 12-13, Congress has never questioned or altered the child's regulatory standard in the more than ten years since its promulgation. /5/ The Fifth and Tenth Circuits have also upheld the regulations at issue here, though against less specific attacks. See Petreleoni v. Secretary of HHS, No. 87-2021 (10th Cir. Oct. 26, 1988); Burnside v. Bowen, 845 F.2d 587, 590-591 (5th Cir. 1988). The validity of the child's disability regulations is currently under consideration in the Ninth Circuit. Burt v. Bowen, No. 88-3990. There are district court cases going both ways on the issue (see App., infra, 16a-17a nn.4, 5). /6/ The Secretary has asked the district court to clarify the scope of the certified class and to exclude from its scope those jurisdictions in which the issue has already been decided or is currently pending. The district court has not yet ruled on this motion /7/ Plaintiffs have also asked the district court, as part of its summary judgment order, to toll the 60-day statute of limitations period contained in 42 U.S.C. 405(g), to include within the class persons who have failed to exhaust their administrative remedies, and to extend the starting date for the class back to July 29, 1975, when the Secretary's regulations relying on the Listing of Impairments to adjudicate children's claims was first published. See 40 Fed. Reg. 31,778, 31,783. Alternatively, plaintiffs have argued that the class should be extended back to March 16, 1977, the date the Part B children's listings were published. See 42 Fed. Reg. 14,705. The Secretary has opposed these requests, but the district court has yet to rule on them. Obviously, if the district court extends the size of the class in any of these ways, the practical consequences of the court of appeals' ruling would be proportionally increased. APPENDIX