UNIT ED S TAT ES COU RT OF A PP EALS F OR THE S ECOND C IRCU IT

_______________ August Term, 2002 Argued: February

26, 2003 Decided: May 28 , 2003 Errata Filed: June 10, 2003 Docket No. 02-6192

_______________

E LI SA E NCARNACI ON o/b/o Arlene George, a minor; A NA F ELIP E o/b/o Victoria Felipe, M ARGARI TA G UZMAN o/b/o Eric Garcia, and S ANDRA P EREZ o/b/o Maurice Perez, on behalf of

themselves and all other persons similarly situated , Plaintiffs-

Appellant s ,

—v.— J O ANNE B. B ARNHART , C OMM ISSIONER OF S OCIAL S ECUR ITY , Defendant-Appellee,

_______________ Before: S TRAUB , K ATZMANN , AND RAGGI , Circuit Judges

.

_______________

Plaintiffs appeal from a judgment of the United States District Court for the Southern District of New York (La ura Tay lor Swain, J. ) granting the motion to dismiss of Defendant, the2

Commissioner of Social Security. Plaintiffs assert that the Commissioner’s alleg ed practice of discounti ng the e ffects o f less tha

n “marke d” limitati ons in appr aising w hether a child is el igible for Supplemental Security I ncome Disability benef

its is an unreasonable interpretation of the Social Security Disability Benefits Reform Act of 1984, Pub. L . No. 98-460, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, and implementing regulations. Affirmed.

J EFF REY S. T RACHTMAN , Kramer Levin Na ftalis & Frankel L

LP, New York, NY; (James

M. Bake r, Christo per J. Bow es, Miche lle R. Dur an, Kenneth Rosenfeld, Center for Disability Advocacy

Rights, Inc, New Yor

k, NY; Matthew J. Chachere, Northern Manhattan I mprovement Corp. Lega

l Services, New York, NY, on the brief) for Plaintif fs-Appel lants Elisa Encarnacion o/b/o Arlene George; Ana Felipe o/b/o Victoria Felipe; Margarita

Guzman o/b

/o Eric Ga rcia; San dra Pere z o/b/o Mau rice Per

ez; and all others similarly situated

. S USAN D. B AIRD , Assistant United States Attorney (James B. Comey , United States Attorney for the

Southern District of New York, Gideon A. Schor, Assistant United States Attorney, on the brief ) for Defendant-Appellee Jo Anne B. B arnhart, Co mmissione r of Social

Security

. Richard P. Weishaupt, Jonathan M. Stein, Robert Lukens, Community L egal Service s, Inc., Philad

elphia, PA ; Ira

Burnim, Je

nnifer M athis, Judg e David L. Bazelon Center for Me ntal Health Law, Washington, D.C., for Amici Curiae Ame

rican Psy chiatric A ssociation

, National M

ental Hea lth Association, National Alliance for the Mentally Ill, American Orthopsy chiatric A ssociation

, Children’

s Defense Fund, Child

ren’s Rig hts Inc., & New York State

Associati on of Scho ol Psycho logists.

_______________3

K ATZMANN , Circuit Judge :

The Plaint

iffs are parents , appea

ring on b ehalf of

their own

minor chil dren as w ell as a proposed class of similarly situated c

hildren, all of who m have sou ght and were de nied bene fits under the federal Supplemental Security Income for the Ag ed, Blind, and Disabled program, 42 U.S.C. §§ 1381–1383f (2000) (“SSI”). The Social Sec urity Administration (“SSA”) administers the SSI program and issues re gulations setting out guidelines for determining eligible claimants. SSA’s regulations currently provide that claimants under the age of 18 shall be a nalyzed accord ing to how

well the c

hild is cap able of p erformi ng, re lative to o ther chi ldren of compara ble age, in six distinct “domains” of functioning. Only claimants who exhibit “marked” limitations in two domains, or an “extreme” limitation in a single domain, may be found eligible. The parties a gree t hat SSA has

an infor mal policy

, essenti ally

an inter pretation of its own

regula tions, under which multiple limitations, each of which are less severe than “ marked,” cannot be added together across domains to serve as the e quivalent of a single “marked” or “ extreme” limitation. The complaint below alleged that, as a result of this policy , SSA failed to find that the plaintiffs suffered from two marked or one extreme limitation. The plaintiffs alleg e further that the SSA’s interpretation is an unreasonable reading of the statute; specifically , that it is contrary to a statutory provision

directin g that “ the combi ned impact of [all of

the claimants’s] imp airments shall be considered throughout the disability determination process.” 42 U.S.C. § 1382c(a)(3)(G). We agr

ee with the plaintiffs that the SSA’s policy would be c ontrary to the statute if the SSA gave no weight to some of a claimant’s impairme nts in appraising the4

claimant’s level of disability. B ecause, however, we deter mine that the regulations provide sufficient consideration of “the combined impact” of multiple impairments within individual domains, w e affir

m. BACKGROUND The Statute and Regulations Prior to 1996 Congre ss’s 1972 overhaul of the Soc ial Secur

ity Act produc ed the Sup

plementa l Security Income (“SSI ”) program, an ambitious network of transfe r payments to nee dy individuals who, for various reasons, were unable to work. Pub L . No. 92-603, § 301, 86 Stat. 1329, 1465 (1972) (“the Ac t”). Although the

predominant focu s of the le gislation was benefits for adults, Con

gress included a provision making disabled children eligible for SSI pay ments, as well. Id. , 86 Stat. at 1471. The 1972 s tatute de fined “d isability ” slight ly d iffere ntly for child ren and a dults. An a

dult would be “considered to be disabled for the purposes of [SSI ] if he is unable to engage in any substantial gainful activity by reason of any

medically deter

minable physical or menta l impairme nt which c an be expe cted to r esult in de ath or wh

ich has la sted or c an be expe cted to last for a continuous period of not less than twelve months.” Id. (codified as amended at 42 U.S.C. § 1382c(a)(3)(A)). A child under 18 would be c onsidered disabled, however, “if he

su ff er s f ro m a ny m ed ic al ly d et er mi na bl e p hys ic al or me nt al im pa ir me nt of co mp ar ab le se ve ri ty” to that which would disable an adult. Id. The Social Security Administration, which wa s charged with administering SSI , designed a multi-stage process for determining whether an adult was disabled under the statute. See5

Bowen v. Yuc

kert , 482 U.S. 137, 140 (1987). In gene ral, the Commissioner first asked whether the applicant was engage d in any substantial ga inful activity. Id. If so the applicant was statutorily ineligible for be nefits. The Commissioner then attempted to determine whether the claimant’s disability was “be low a threshold level of medical severity ,” id. at 149 n.3 , such tha t it could not plausibly leave an a pplicant unable to engage in g ainful activity. Id. at 141, 153. The Supreme C ourt desc

ribed the remainin g stag es of the

process : If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. I f the impairment is severe, the evaluation proceeds to the third step, which determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so seve re as to preclude substantial gainfu l activity . [20 C.F.R. §§ 404.152 0(d), 416 .920(d) ( 1986)]. I f the impa irment me ets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is conclusively presumed to be disabling, the evaluat ion proce eds to the

fourth ste

p, which d

etermine s whethe

r the impa

irment pr events the claimant from p erformi ng work he has pe rformed in the pas t. If

the claim ant is able to perform his previous work, he is not disabled. [ Id . §§ 404.1520(e), 416.920(e)]. If the claimant cannot perform this work, the fifth and final step of the proc ess determines whether he is able to perform other work in the national e conomy in view of his ag e, education, and work experience. The claimant is entitled to disability benefits only if he is not able

to perform other work. [ Id . §§ 40 4.152 0(f) , 416. 920( f)]. Yuckert , 482 U.S. at 141–42. After a delay of sever al years, SSA

at leng th issued r

egulat ions for id

entify ing disa bility in children. See Sullivan v. Zebley , 493 U.S. 5 21, 537 n.1 9 (1990); see also S. Rep. No. 94-1265, at 24–25, reprinted in 1976 U.S.C.C.A.N. 5997, 6018–19 (discussing SSA’s failure to issue meaningful regulations for childhood disability ). Its formulation was “an a bbreviated version of the adult test.” Zebley , 493 U.S. at 526. After screening for g ainful activity and non-se vere impairme nt, the SSA a sked only

whether the child ’s impair

ments “ma

tche[d] or m edically equal[ed]” its listing of impairments that would presumptively disable a c hild. Id. (citing 201 SSA’s child disability assessment did not include a “severity ” step until 1991. See Supp lemen tal S ecurit y Income; Det ermin ing Di sabil ity for a C hild Under A ge 18, 5 6 Fed. R eg. 5534, at 5538 (Feb. 11, 1991) (codified at 20 C.F.R. § 416.924). 6 C.F.R. §§ 416.924(b)(2), (3) (1989)). I f a child did not qualify under those listings, he or she was denied benefits. Id. SSA’s disability-determination process for children underwent a pair of significa nt changes prior to 1996. The first arose out of Cong ress’s response to SSA’s policy towa rds individuals suffering from multiple impairments. In a r egulation enacted in 1982, the Secretar y

announc ed that where a c laimant ha d multiple i

mpairmen

ts, SSA would

consider whether those impairments in combination prevented the claimant from working only if each one of the impairments individually was above the “ severe” threshold. See Kolodnay v. Schweiker , 680 F.2d 878, 880 (2d Cir . 1982) (c iting 20 C. F.R. § 416 .922 (198 2)). At th e same time, the SSA ruled tha t it would no t find that

a claima nt was “se

verely ” disable d unless he

or she ha d at leas t one impairment that in itself was severe. 1 See Dixon v. Heckler , 589 F. Supp. 1494, 1508 (S.D.N.Y . 1984) (c iting Soc . Sec. Ruli ng 82-5 5). The e ffect o f the two d ecisions was that SS A gave no conside

ration to i ndividual impairme

nts that we

re less than “seve

re.” Con gress ultimately

rejecte d both reg

ulations, finding

that “[SSA’ s] policy

may preclud e realis tic

assessme nt of those

cases in volving i ndividual s who have

severa l impairme

nts which i

n combination may be disabling .” H.R. Conf. Rep. 98-1039, at 30, reprinted in 1984 U.S.C.C.A. N. 3080, 3 087–88. I t theref ore ena cted a ne w provision, providi

ng that: In determining whe

ther an individual’s physica l or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under this section, the Commissioner of Social Security shall consider the7

combined effect of all of the individual’s impairments without rega rd to whether such impairment, if considered separately, would be of such severity . . . . [T]he combined impact of the impairments shall be considered throughout the disability determination process . 42 U.S.C. § 1382c(a)(3)(G) (2000). SSA’s second major revision followed the Supreme Court’s decision in Zebley , in which the Court held that SSA’s child disability regulations fa iled to “carry

out the statutory requirement that SSI benefits . . . be provide d to children with ‘any . . . impairme nt of comparable severity ’ to an impairment that would make an adult ‘unable to engag e in any substantial gainful activity.’ ” 493 U.S. at 541 (quoting 42 U.S.C. § 1382c(a)(3)(A) (1988)). T he Court observed that, although the adult evaluation process included a n individualized functional analysis of ea

ch claimant, children were limited to demonstrating that their impairments wer e medically equivale

nt to one of the Secretary ’s finite set of presumptively disabling impairments. Id. at 526. An adult claimant could prevail at the individualized functional analysis stage by showing that his or her impairments prevented him or her from e ngaging in substantial ga

inful activity. Id. at 534–35. By c ontrast, the Secretary ’s listings of presumptively disabling childhood disabilitie s were c omprised of impair ments that

would pre

vent any gainful activity

. Thus, the practic al effe ct of hold

ing chil dren only

to the listin

gs was t hat they were re quired to show that they wer

e more disabled than an eligible adult. Id . at 535–36. The listings also were not comprehensive, so that many unlisted impairments or combinations of impairments were not recognized as disabling, even when it wa s “obvious” that the claimant should have been eligible. Id. at 533–34. Indeed, the Court sug gested that the absence of a f unctional assessment step would often frustrate the purpose of the 1984 amendment re quiring the Secretary to consider the8

combined effect of all of the claimant’s disabilities. Id. at 535 & n.16. As a result, many children with disabilities of “comparable severity ” to those that would disable adults were ruled ineligible. Id. at 537–38. In response, SSA amended its child disability regulations to ensure that children would be better able to demonstrate that they were entitled to benefits under the statute. See Supplemental Security I ncome; Determining Disability for a Child Under Age 18, 56 Fed. Reg . 5534 (Feb. 11, 1991) (c odified a

t 20 C.F.R. §§ 416.924 , 416.926) . Beca use most children d

o not work , SSA could not s imply

install a new step in

its proce ss asking

whether the child ’s impair

ments prevented the child from engaging in substantial gainful activity

. Id. at 5535. I nstead, SS A attempted to determine whether the child’s impairments “so limit[] his or her phy sical or mental abilities to function independently, appropr iately, and ef

fectively in an a

ge-appropriate manner that the limitations are comparable in severity to those which would disable an adult.” Id. at 5538. In order to assist its examiners in making that judgment, SSA implemented a ne w procedure, the “individualized functional assessment,” or “I FA.” Id. ; see generally Hickman v. Apfel , 187 F.3d

683, 687–8 8 (7th

Cir. 1999)(descr

ibing fo ur-step process for ana lyzin g child disability prior to 1 996 amend

ments). T

he hallma rk of the IFA was that i

t identifi ed six (or in the case of infants and toddlers, five) cate gories of childhood activity , which the regulations called “domains” of functioning. See 20 C.F.R. § 416.924c (1992). The regulations established non-binding guidelines for using the domains to find functional disability . In most cases, the regulations said, a child is disabled if he or she suffers from “marked” limitations in his or her2 The new regulations thus also introduced a new se t of terminology, w

hich it will be useful f or the re ader to d

istinguish throug

hout the r emainde r of this op inion. An “ impairme nt” is the physical ailment af

flicting the applicant. See 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.921–23. A “limitation” is the functional consequence of an impairment or combination of impairments. See 42 U.S.C. § 1382c(a)(3)(C)(i); 20 C.F.R. § 416.924. 9 ability to carr y ou t the functions desc

ribed in one of the

domains, p lus “mode

rate” li mitations in his or her functioning in any other domain. 2 See Quinones v. Chater , 117 F.3d 29, 34 (2d Cir. 1997) (citing 20 C.F.R. §§ 416.924d(c), (h), 416.924e(c) (2)(i), (ii) (1996)). Alternately, three moderate limitations could also constitute disability. Id. There w as a hier archy of limitati ons, with “extreme” being almost totally non-functioning, “marked” somewhat more f unctional than that, continuing to “moderate,” from there to “se vere,” which is defined as “more than minimal,”

see 20 C.F.R. § 416.924(c) (2002), and down to unnamed limitations less disabling than “severe.” The 1996 Amendments Congress revisited the subject of SSI be nefits for children in 1996 with the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104- 193, §§ 211 to 212, 110 Stat. 2105, 2188–94 (1996) (the “Welfare Reform Act”). The Welfa re Reform Act’s new definition provides that a child under eig hteen yea rs of age is “disabled” if the child “has a medically

determinable physic al or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or whic h has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i) (2000). The thrust of the le gislation was most certainly to tighten eligibility. See H.R. Conf. Rep. No. 104-725, at 261, reprinted in 1996 U.S.C.C.A.N. 2649, 2649 (noting10

that the Welfare Reform Act aimed to “reform[] the [SSI] disability program to strengthen eligibil ity r

equirem ents . . . f

or . . . ch ildren” ). A House

Budge t Committee

Report on

an earl y draft of the 1996 legislation indicated that “the committee expects no less than marke d limitations in no fewer than two domains or extreme limitations in at least one domain as the standard of qualification.” H.R. Rep. No. 104-651, at 1385 (1996). After some revisions to the pertinent statutory lang

uage, the Conference Repor t accompany

ing the new legislation noted that “[i]n those areas . . . that involve domains of functioning, the conferees e xpect no less than two marked limitations as the standard for qualification.” H.R. Conf. Rep. No. 104-725, at 328, reprinted in 1996 U.S.C.C.A.N. at 2716. Moreover, the Conference Report explained that the statutory term “seve

re” was intended “in its common sense meaning” r ather than in the technical sense SSA applied in its regulations. Id. Additionally, Congress dire cted SSA to discontinue the IFA proce dure, see Pub. L. No. 104-193 § 211(b)(2), 110 Stat. at 2189, but noted in the Conference Report that it did “not intend to limit the u se of fun

ctional in formation, if ref lecting sufficie nt sever ity a nd . . . othe

rwise appropriate.” H.R. Conf. Rep. No. 104-725, at 328, reprinted in 199 6 U. S. C. C. A.N . at 271 6. In emphasizing their expectation that SSA would “ensure that the combined effects of a ll the physical or mental impairments of a n individual under age 18 are taken into ac count,” the conferees observed that “the 1990 Supreme Court decision in Zebley established that SSA had been previously r

emiss in this regard.” Id. In response to the leg islation, SSA issued a new set of regulations reconstituting the procedures for determining childhood disability

. See Supplemental Security I ncome;3 SSA amende d its reg ulations a gain, e ffectiv e January

2, 2001, to

essentia lly e liminate medical equivalence proceeding s and to analyze all childre n under a functional equivalence rubric. See Supplemental Security I ncome; Determining Disability for a Child Under Age 18, 65 Fed. Reg. 54,747, 54,755 (Sept. 11, 2000) (codified at 20 C.F.R. Part 416). T he definitions and testing results for marked and extreme disabilities, however, have not changed. See id. at 54,756. Most importantly for our purposes, the Commissioner has not cha nged her interpretation of the functional limitation regulations, which are the subject of the Plaintiff’s cha llenge. 11 Determining Disability f

or a Child Under Age 18, 62 Fed. Reg . 6408 (Feb. 11, 1997) (codified at 20 C.F.R. Parts 404 and 416). SSA’s new rules set up a three-step proce ss, under which the administrative law judge (“AL J”) or other examiner must determine (1) that the child is not engaged in substantial ga inful activity; (2) that the child has an impairment or combination of impairments that is severe; and (3) that the child's impairment meets or equa ls an impairment listed in Appendix 1, Subpart P of 20 C.F.R. § 404. In making the third deter

mination—whether a child's impairment meets or equals a listed impairme nt—the AL

J must conside

r whethe r the impa

irment, a lone or in combinat ion with another impairment, “medically equals, or functionally e quals the listings.” 3 Functional equivalency

means that the impairment is of “listing-level severity ; i.e., it must result in ‘marked’ limitations in two domains of functioning or an ‘extreme’ limitation in one domain . . . .” 20 C.F.R . § 416 .926a (a). A m arked l imit ation is on e that inter feres s eriou sly with the ch ild's “ability to independently

initiate, sustain, or complete activities.” Id. § 416.926a(e)(2)(i). The ALJ considers how a child functions in his activities “in terms of six domains”: “(i) Acquiring and using informat ion; (ii) A ttending and compl eting ta sks; (iii) I nterac ting and

relating with4 The 2001 r egulat ions made

two chan ges to th e list of f

unctiona l domains. They

first added the last cate gory, “healt

h and phy sical we ll-being .” Secon

d, they chang ed two old categories, “cog

nition” and “communication,” distributing communications deficits among eac h of the other categories, and re naming cognition as “acquiring and using information.” See 65 Fed. Reg. at 54,755. 12 others; (iv) Moving about and manipulating objects; (v) Caring for yourse lf; and, (vi) Health and physical well-be ing.” Id. § 416.926a(b)(1). 4 The regulations provide that a child must be found to be disabled if he or she has an impairment or impairments of “listing-le vel severity,” that is, an “extreme” limitation in one of these domains, or “marked” limitations in two or more domains. 20 C.F.R. § 416.926a(a). The Commissioner’s Interpretation The Plaint

iffs’ challeng e in this ca se focus es not on th e regu lations the

mselves b ut a particular interpretation of the reg ulations issued by the Commissioner. The Report of the Committee on Conference accompany ing the Welfare Reform Act, as we noted, indica ted that Congre ss expecte d “no less than two ma

rked limit ations as the stand ard for qualific ation.” H .R. Conf. Rep. No. 104-725, at 328, reprinte d in 1996 U.S.C. C.A.N. at 2716. On it s face, this language appea

rs to leave open the possibility that limitations of differing degrees might be substitutable for one another at some rate of exchang e, so that more than two less-than-marked limitations might nonetheless be the equal of two marked. I ndeed, the SSA apparently adopted a similar log

ic in conc luding th at a sing le “extre me” limita

tion, 20 C.F .R. 416.92 6a(a), is “no les s than two marked,” H.R. Conf. Rep. No. 104-725, at 328, reprinte d in 1996 U.S.C.C.A.N. at 2716. According to the Commissioner, however, two or more modera te limitations in different doma ins of func tioni ng c anno t be tr

eate d as the equ

ivale nt of, or “a

dded up to e qual [,] a13

‘marked’ limitation.” Social Security Administration, Childhood Disability Training: Student Manual, Pub. No. 64-075, at Tab F p. 15. The Commissioner reasoned that “to revise the disability standard to include children w ith impairments of less than listing-level severity (e.g., one marked and one moderate limitation or three modera te limitations in ‘crucial’ areas) would, in essence, result in the same level of severity we used when we performed an I FA under the prior law.” See Supp lemen tal S ecurit y Income; Det ermin ing Di sabil ity for a C hild Under A ge 18, 65 Fed. Reg. 54,747, 54,763 (Sept. 11, 2000) (codified at 20 C.F.R. Part 416). I n effect, once the examine

r has ass essed the

level of limitation i

n each o f the cla

imant’s do mains, mod

erate limitations drop out of the equation, and the number of marked or extreme limitations is counted to determine whether the claimant is eligible. Parties and Procedural History The lead named Pla

intiff, A rlene Ge orge, applied f

or and wa s denied SS I disa bility benefits. On September 1, 2000, she filed suit (through her mother, Elisa Enc arnacion) in the United States District Court for the Southern District of New York (L aura Tay lor Swain, J

.) to challen ge the a dverse d etermina tion of the

SSA. Enca

rnacion then file d an Amen

ded Compla

int, joining a new Plaintiff, Victoria Felipe (by her mother, Ana Felipe). The Amende d Complaint allege d both indiv

idual fa ctual an d proced ural def iciencie s in the SSA’ s ruling s on both Plaintiff s’ claims , as well a s a putativ ely class-w ide claim that the SSA

was impro

perly administering the statute and regulations. Encar nacion and Felipe moved for class cer tification. Felipe t hen rec eived a f

avorabl e deter

mination f

rom the SSA

Appeals Council, and the District Court dismissed her individual claim as moot, but allowed her to remain as a class representa tive.14

In a ddition, th e Plaintif

fs filed a Second Amended Com

plaint, a dding tw o more na

med plain tiffs, Eric Ga rcia (via Marg arita Gu

zman) and

Maurice Perez (th rough Sa ndra Per ez). The S SA agree d to gra

nt benef its to Gar cia and Pe

rez, so tha

t the Distr

ict Court a

gain dis missed the ir individua l claims, b

ut retained both as

class re present atives. Ultimately, the District Court rejecte d the Plaintiffs’ substantive class-wide claims. Ruling on the Defendant’s Motion for Judgment on the Pleadings, the District Court held that the Commissioner’s interpretation was entitled to Chevron deference. See Enc arnacion v . Barnhart

, 191 F. Supp. 2d 463, 472–75 (S.D.N.Y. 2002). Although the court acknowledg ed that the regulations do not expressly c ontain the non-combination policy, it found that such a r eading was a “reasonable, obvious construction of the lang uage of the regula

tion.” Id. at 47 2. Al te rn at iv el y, it noted tha

t even if the reg ulation we

re not a “ legisla

tive” ru le, it woul d still be e

ntitled to deference under Christense n v. Harri s County , 529 U.S. 576 (2000). Encarnacion , 191 F. Supp. 2d at 475. In addition, the District Court denied the Plaintiffs’ motion for class ce rtification, essentia lly r uling tha t it would de fer con siderati on of that question p ending

the resu lt of this appeal. Id. at 469. This appeal followed. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1361. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 . DISCUSSION I. A.5 We review de novo the distri ct court ’s decis ion to dismis s pursuan t to Fed. R . Civ. P. 12(c). See, e.g., Patel v. Searles , 305 F.3d 130, 134–35 (2d Cir. 2002). 15 The scope of our review in this case is limited by the allegations of the complaint below. The Plaintiffs’ principal argument is that the Commissioner’s interpretation, which forbids adding “modera te” limita tions acr oss domain s to equal

a “mark ed” or “ extreme”

limitation, is contrary to the Act because it prevents AL Js from “consider[ing] the combined effects of all of the individual’s impairments,” 42 U.S.C. § 1382c(a)(3)(G), as the statute now re quires. The Commissioner argues, and we agre e, that her interpretation is not contrary to law if there are other reasonable methods of giving e ffect to the “combined impact” mandate other than by adding limitations across domains. Because we re ad the regulations, and the Commissioner’s accompany

ing interpretation, to leave open such other routes, a nd because the Complaint does not allege that these alternatives are ineffective either on their face or as applied, we are compelle d to affir

m the distr

ict cour t’s decis ion to dismis s the comp laint. 5 To begi n with, we

recog nize that a

n agency ’s interpretation

of its own r

egulat ions is entitled t o conside rable de ferenc e, irre spective of the formality

of the pr ocedure s used in formulating the interpretation. See Taylor v. Vt. Dep’t of Educ. , 313 F.3d 768, 779–80 (2d Cir. 2002) (citi ng Auer v. Robbins , 519 U.S. 4 52, 461 (1 997)); LaFleur v. Whitman , 300 F.3d 256, 277 (2d Cir. 2002). We defer to an agency ’s interpretation of its own regulations because we “presume that the

power a uthoritat ively to interpr et [the ag ency ’s] own re gulations is a component of the agency ’s delegated lawmaking powe rs.” Martin v. Occupational Safety & Health Rev. Comm’n , 499 U.S. 1 44, 151 (1 991). Be cause it would mak

e no sense

to presum e16

that Congress had the genera l intent to delegate to an agency the power to contradict Congress’s clearly expresse d specif

ic intent i n some othe

r matter , we will not defer when an i

nterpre tation is clearly c ontrary to any

statute. See N.Y. Curre

ncy Res earch Cor

p. v. CFTC

, 180 F.3d 83, 87, 92 (2d Cir. 1999). Therefore, as a reviewing court, we are not free to substitute our policy judgment for that of Congress or of an age

ncy. Even if w e were to prefer the plaintiffs’ methodolog y, we ar e without authority to decree it if the Commissioner’s interpretation is not “plainly errone ous.” Taylor , 313 F.3d at 780. In this case, wecannot conclude that SSA’s use of functional domainbased an aly sis and its f

ocus on the

combined

effec ts of impai

rments wi thin func tional doma

ins is inconsiste nt with Cong

ress’s in tent to re strict el igibility . We defe r to the Se cretar

y’ s view tha

t it is not required in a mechanical way to add impairments across domains, largely because we read SSA regulations and policy to envision that limitations in domains less than marked will be “considered throughout the disability determination process,” 42 U.S.C. § 1382c(a)(3)(G). The Plaintiffs argue that the Commissioner’s interpretation is not entitled to deferenc e because it contra dicts the s tatutory

mandate that the “ combined

impact of

[all the cl aimant’s ] impairments shall be considered throughout the disability determination process.” 42 U.S.C. § 1382c (a)(3) (G). Th e plai n langu age of th is pro visi on, t hey argue, i ndica tes th at it is no t enou gh that SSA merely acknowle dge the existence of, or appraise the sig nificance of, an impairment that produces only a

moderate limitation. Rather, SSA must give the impairment meaningful effect throughout the disability assessment process, including those portions of the process that follow SSA’ s conclus ion that the impairme

nt results only in a moder

ate limita tion in a do main17

that does not overl ap with an

y ot her impa irment. B ecause

SSA refus es to add t

ogethe r modera te impairments in different domains, the Plaintiffs say , it follows that they have fa iled to “consider the combined impact” of the moderate impairments that are not adde d. The Commissioner disputes the premise of the Plaintiffs’ argument, averring that she would mee

t the term s of the “ combined impact” p

rovision s imply

by r ecogn izing tha t a claimants’ level of limitation within any g iven domain might arise out of more than one impairment. In a sense, then, SSA “combines” limitations, albeit only within domains. She argue s that an im

pairmen t that prod

uces only moderat e limitations, wher

e the mode

rate limitations

cannot be

combined

with those

resulting from ano ther impa

irment, a re still “considered,” because they have the potential to be combined with other limitations. An example may help to clarif y the parties’ r

espective positions. Suppose a claimant who suffers from three potentially disabling impairments, say, A , B, and C. Impairment A produc es moderate limitations in domains one and two; B results in moderate limitations in domains two and thre e, and C c auses a moderate limitation i

n domain f

our. The effec t of A and

B toge ther is to create a marked limitation in domain two. If SSA makes no further adjustments to the level of limitation in each domain, the claimant is not eligible for benefits, because she ha s only one marked limitation and three moderate limitations. The Plaintiffs argue that SSA has not “consider[ed]” the combined effect of impairment C, because it was, literally, never

combined. Furthermore, they

claim, when SSA reaches the end of its process and counts up how ma ny limitations

there a re of ea ch ty pe, they complete ly ig

nore the effec ts of C, bec ause it fa iled to result, either singly

or in intra-domain combination, in a marked impairment. SSA, on the other18

hand, maintains that it “considered the impact” of C, because it attempted to dete rmine whether C resulted in a marked limitation. This discussion illustrates that the crux of the Plaintiffs’ argument rests on the assumption that after adding together limitations within domains, SSA makes no further adjustmen

ts to the le

vel of limi

tation in e ach doma

in. Under the Plainti ffs’ re asoning , the SSA unlawfully neglects the impact of impairments, such as impairment C in our example, that produce less then marked limitations in domains not affected by any other impairme

nt. If, however , the Commis sioner g ives weig ht to such i

mpairmen

ts throug hout the di sability determination pro cess in a way other tha n by “adding ” acros s domains, it would be very difficul t for the Plaintiffs to maintain that the Commissioner has given the impairments no meaningful effec t. In t

hat case , the Commis sioner’ s decisio n to exclude moderat e limitations would sim

ply be one of many

reasonable interpretations of the statute and her ow n regulations. As we indicated at the outset, we read the Commissioner’s reg ulations and policy to give some eff ect to ea ch of a c laimants’ impairme nts throug

hout the di sability

determination pro cess. The reg ulations o n their fa

ce instru ct the AL J to “look co mprehen sively at the co mbined ef

fects of [a claimant’s] impairments on [the claimant’s] day-to-day functioning instead of considering the limitations resulting from each impairment separately .” 20 C.F.R. § 416.924a(a)(4) (2002). That is, in determining a child’s functional abilities, the agenc y will consider a single impairment in every domain it af

fects, no matter the degree. F urther, it will assess the cumulative impact of all impairments relevant to a particular domain in assessing a c hild’s cumulative functional limitation i

n that doma

in. The re gulations indica te that, a lthough S SA ultimate ly d oes not pe

rmit6 Although the Welfare Reform Act directed SSA to discontinue the I ndividualized Functional Assessment, see Pub. L. No. 104-193 § 211(b), 110 Stat. 2105, 2189 (1996), we ag ree with SSA that Congress did not also intend to put an end to functional equivalence analy sis of child claimants. Indeed, the Confer ence Committee report explicitly stated that “w here appropriate, the conferees re mind SSA of the importance of the use of functional equivalence disability determination procedur es,” H.R. Conf. Rep. No. 104-725, at 328, reprinted in 1996 U.S.C.C.A.N. 2649, 2716. Nor do we think SSA’s reading leaves the statutory clause deleting the IFA purposeless. The elimination of the IFA indicated that, in Cong ress’s view, the Act ought not require that an individualized functional assessment be carrie d out in every ca se. But Congress clearly

expected that functional equivalence, or something like it, would still be utilized where appropriate. See id. (“[T]he conferees do not intend to suggest by this definition of childhood disability that every child need be especially

evaluated for functional limitations . . . . Nonetheless, the conferees do not intend to limit the use of functional information, if ref lecting 19 moderate limitations to give rise to a finding of eligibility, the existence of sub-marked limitations in other domains may influence the leve l of impairment SSA finds in any one given domain. See 20 C.F.R. § 416.926a(a) (2002) (“When we make a f inding regarding func

tional equivalence, we will assess the interactive and c umulative effects of all of the impairments for which we have evidence, including any impairme

nts y ou have that are not ‘seve re.’”) ; id. § 416.926a(e)(1)(i) (“When we dec ide whether y ou have a ‘marked’ or an ‘extreme’ limitation, we will consi der y

our functional limit

ations re sulting f

rom all of you r impairm ents, inc luding th eir interactive and c

umulative effec ts.”). Th

us, it appe ars that t

he reg ulations p ermit SSA to

increa se

a non-ma rked limit ation up to

marked t o refle ct the impa

ct that other non-marked im pairmen ts may have on the cl aiman t’s ov erall level of fun ction ing. SSA’s rema

rks acc ompany

ing its iss uance o f the new

regula tions in 199 7 also suggest strongly that it believe s the new regulations preserve the f lexibility it enjoye d prior to the Welfare Reform Act. In a pre amble to the Interim Final Rules, SSA stated that “we a re retaining our prior policies on determining functional equivalence.” 6 Supplemental Security I ncome; Determiningsufficient severity and i[f] otherwise appropriate.”) 20 Disability for a Child Under Ag e 18, 62 Fed. Reg. 6408, 6413 (Feb. 11, 1997). U nder the “prior policies,” as we have mentioned, the Commissioner used the degr ee of impairment in the functional domains only as a g uideline. See Quinones v. Chater , 117 F.3d 29, 34 (2d Cir. 1997). The reg ulations e mphasized

that the a pplicant was to be

viewed a s a whole , and that “[e]ach c ase must be evaluated on its own merits using the principles and guidelines of a ll the regulations addressing childhood disability.” Id. (quoting 20 C.F.R. § 416.924e (c)(2)(1993)) ; see also id. at 37 (remanding to ALJ for consider ation whether “[applicant’s] impairments, taken together, amount to a qualifying

disability”). There fore, we think that when SSA announced it was “retai ning [ its] prior poli cies, ” it i ndica ted th at it would have t he sam e flex ibil ity in de termi ning a claimant’s overall level of disability , although with a somewhat more demanding minimum threshold for disability. Thus, we conc lude that under current SSA regulations AL Js retain the power to account for the existence of non-marked limitations in the disability determination process, notwithstanding the formal bar on combining non-ma rked impairments. At oral a rgumen t, the Plain

tiffs con tended vi gorous ly that the que stion of wh ether SSA actually exercise s this powe

r in a mea ningful way is a fac t question

not suitab le for re solution in a motion under Fed. R. Civ. P. 12(c). We agree, of c ourse, that we must treat all of the allegations of the Complaint as true. See, e.g., Patel v. Searles , 305 F.3d 130, 134–35 (2d Cir. 2002). We have sea

rched th e Complain

t in vain, however , for an a llegat ion that SSA

does not, i

n fact, adjust the level of a claimant’s limitation within one or two domains to “look comprehensively

” at the claimant, 20 C.F.R. § 416.924a(a)(4) (2002), a nd account for the7 Nothing we say in this opinion is intended to foreclose Plaintiffs from raising a future challenge to SSA’s practices in these reg ards. 21 “interactive and cumulative effects” of limitations in other domains, id. § 416.926a (e). No r is there an allegation that the domains themselves are designed in a way

that would frustrate the SSA’s ability to “consider” the “ combined impact” of all of a claimant’s impairments—as might be the ca se, for e

xample, if p laintiff

s could de

monstrate that the d

efined d omains omit

ted some significant aspect of pertinent juvenile functioning , and that there was no flexibility to acc ount for the o mission with

in other d omains. 7 We conclude that, although SSA may choose not to add together moderate limitations across domains to create the equivalent of a mar ked limitation, it does not necessarily follow that those impairments underlying the omitted moderate limitations are not “considered throughout the disab ility

determination pro cess.” U nder our understa nding, n othing w ould prec lude SSA from adju sting an

otherwis e modera

te, but ne arly

marked, limitation i

n domain A

up to fully marked to account for the effec t of a limitation in domain B. B. We pause t

o note tha t the flexib ility

to accou nt for cu mulative e ffects w e have ju st described is likely esse

ntial to a permissible implementation of the Act. As we explained earlier, the Supre me Court’ s opinion in

Sullivan v. Zebley , 493 U.S. 521 (1990) invalidated the SSA’s then-existing procedure for assessing c hild disability. Id. at 541. Th e Court’s main obje ction to SSA’s scheme was that, by limiting c hildren to demonstrating that their impairments were the medical equivalent of one of a finite list of presumptively disabling ailments, the regulations22

elevated the level of severity needed, and failed to recog nize the great variability

among individuals. Id. at 534–35, 539. The Court also noted that exclusive use of medical equivalence failed to “fulfill the statutory manda te” of the “combined impact” provision, as well. Id. at 535 n.16. That is, the regulations did allow the list of sy mptoms that would establish medical equivalence to a single listing to be drawn f rom more than one impairment. But, again, the listings d id not acc ount for a

ll possible

combinat ions of impa

irments. T

herefore, although SSA “considered” combined effects, in the sense that it analyzed the ef fects of more than one impairment to determine whether they together resulted in medical equivalence , that consideration was not “of value . . . to children,” beca use the practical result was that “within the confines of the equivalence determination” the c ombined effect was usually zero. Id. The Court applied t he same l ogic in a

related observa tion, notin

g that “ [t]he fact

that some of the listed impairments are defined in terms of functional criteria is small comfor t to child claimants who do not have one of those impairments and who fail to qualify for benefits.” Id. at 540 n.21 (emphasis added). In short, Zebley held that SSA does not sufficiently “consider the combined effect” of an impairment when it merely looks to see whether the impairment contributes an item in the medical e quivalen

ce chec klist, and , if not, gives the im pairmen t no effe ct at all. Thus, as w ith the medical equivalence test in Zebley , we cannot accept an interpreta tion of “consider the combined effect” where the impairme nt is assigned zero weight in the ultimate decision whether or not to award benefits. Nor can this approach be reconciled with the statutory requirement that23

the Commissi oner con sider “the combine d impact o f [all of th e claima int’s] impai

rments throughout

the disability determination process.” 42 U.S.C. § 1382c(a)(3)(G) (emphasis added). Accordingly , we conclude that the Act appears to requir e that each of a claimant’s impairments be given at least some effect during each step of the disability de termination process . A contr

ary interpre tation of e ither the

statue or the implem enting r

egulat ions which

fails to provide

for the me aningf

ul assess ment of mul

tiple impa

irments ma

y no t be due th e same deference we acc ord to the SSA in this case. We emphasize, however, that the SSA has considerable flexibility in determining how best to “consider the impact” of a given impairment in assessing eligibility. F or the reasons already stated, we are satisfied that the age ncy’s policy

of considering the combined impact of an impairment within every affected domain but not adding across domains is not a plainly er roneous procedure for identify ing children who suffer from the sort of “marked and severe functional limitations” that rende r them disabled, 42 U.S.C. § 1382c(a)(3)(C)(i), particularly since SSA regulations are flexible enough to allow AL Js to “look comprehensively

at the combined effects of [a claimant’s] impairments,” 20 C.F.R. § 416.924a(a)(4) (2002). C. Finally, we must ac count for the Plaintiffs’ contention that the Commissioner’s interpretation is contrary

not only to the “combined impact” pr ovision, but also to the very purposes of the SSI statute. I n other words, Plaintiffs ask that we construe the 1996 statute that sought to tighten eligibility standards in the context of the general purposes of the SSI program. In the past, we and other c ourts have rejected as arbitrary and capricious some of the SSA’s8 This gap, we respectfully suggest, may

explain much of the SSA’s long history of struggle with the definition of childhood disability . Better guidance might do much to re duce public, judicial, and administrative confusion over the proper direction for the regulations. 24 choices regar ding how best to ap

praise the combine d effect of multiple impairme

nts, larg ely because the SSA’s view was inconsistent with the statutory purpose of identifying

and compensating adults who could not work. See Johnson v. Sullivan , 922 F.2d 346, 352 ( 7th

Cir. 1991) (e n banc); McDonald v. Sec’y of Health & Human Servs ., 795 F.2 d 1118, 112 7 (1st Cir. 1986); Cutler v. Weinberger , 516 F.2d 1282, 1285 (2d Cir. 19 75); Landess v. Weinberger , 490 F.2d 1187 , 1190 (8th

Cir. 1974) ; Colwell v. Gardner , 386 F.2d 56, 74 (6th

Cir. 1967) ; Dillon v. Celebrez ze , 345 F.2d

753, 757 (4th Cir. 196 5); Farley v . Celebre zze , 315 F.2d 704, 707–08 (3d Cir. 1963) ; Dixon v. Heckler , 589 F. Supp. 1494, 1508 (S.D.N.Y. 1984), aff’d , 785 F.2d 1102 (2d Cir. 1986), rev’d on other grounds sub nom

. Bowen v. Dixon , 482 U.S. 9 22 (1987) ; Champion v. Califano , 440 F. Supp. 1014, 1017–18 (D.D.C. 1977). Our ana lys is in this re gard is

complica ted by the fac t that Cong

ress has never c learly established the precise purposes of SSI f or children. 8 The official legislative history of the 1972 Act state s: [D]isabled c

hildren w ho live in low-income

household s are ce

rtainly among th e most disadvantaged of all Americans and . . . the y are de serving of special assistance in order to help them become self-supporting members of our socie ty. Making it possible for disabled children to get benefits under this progr am, if it is to their advantage, rather than under the programs for families with children, would be appropriate because their needs are often greater

than those of nondisabled children. The bill, accordingly , would include disabled children under the new progra m. Parents’ income and resources would be taken into account . . . .25

H.R. Rep. No. 92-231, at 147–48, reprinted in 1972 U.S.C. C.A.N. 498 9, 5133–34 . Some hig hly respec table au

thorities have und erstood t his passa ge to ind icate tha t Congre ss simply

wanted to pay for the

“special health care expenses . . . arising out of the child’s medical disability.” Zebley , 493 U.S. at 546 (White, J., dissenting). We think that several other possibilities are equally plausible . For the

reasons that follow, howev er, we n eed not now determ ine the pr ecise objectives of the Act. The Plaintiffs’ argument appears to be that unde r any plausible purpose , the Commissioner must “give each claimant a personalized appraisal, a ccounting for the totality

of his or her symptoms.” Thus, this a rgumen t procee ds, just as

it might de fy

“common s ense” to ignore the combined effects of two impairme nts in determining whether an adult can car ry out substantial gainful activity, Johnson , 922 F.2d at 352, it might defy common sense not to look at the whole child in assessing the costs of his or her care , or the likelihood that the child will ever be able t o be ga infully employ ed in the f uture. Th is argu ment must g o the way

of the pla

intiffs’ first: To the extent that SSA’s procedures do already allow consideration of all of the factors that are relevant to the statutory purposes, the plaintiffs have no cause for complaint. And, as we have already

held, there is no allegation that SSA under its regulations cannot, or in a ctual cases does not, do so. Nor do the Plaintiffs allege that, in appraising the e xtent of a child’s limitation, SSA improperly considers fa ctors that would frustrate the statutory purpose. Therefore, because we

conclude that SSA’s interpretation of the statute is permissible, and because Plaintiffs did not challenge the SSA’s actua l implementation of its regulations, we26

need not determine whether the methods utilized by SSA in assessing childhood disability are contrary to the purposes of the Act. II. In su

m, we hold

that eac h of a chi ld SSI c laimant’ s impairme nts must be t

aken into account in SSA’s bottom-line assessment of the child’s disability. B ecause SSA’s current regulations are open to a rea ding in which examiners are in fact free to account for the “interactive and cumulative” effec ts of all of the claimant’s impairments, and the Plaintiffs have not alleged otherwise, we ag ree with the District Court that the Plaintiffs have failed to state a claim upon which relief can be gra nted. Accordingly , the decision of the District Court is hereby Affirmed.