Joseph McCavitt v. Kilolo Kijakazi

In the

United States Court of Appeals For the Seventh Circuit ____________________

No. 20-2727 JOSEPH MCCAVITT, on behalf of N.A.M., a minor, Plaintiff-Appellant,

v.

KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee. ____________________

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:19cv00539 — Robert L. Miller, Jr., Judge. ____________________

ARGUED APRIL 27, 2021 — DECIDED JULY 21, 2021 ____________________

Before SYKES, Chief Judge, and EASTERBROOK and SCUDDER, Circuit Judges. EASTERBROOK, Circuit Judge. Disabled children are entitled to benefits from the Social Security Administration, see 42 U.S.C. §1382c(a)(3)(C), but the determination of disability cannot follow the model used for adult applicants. Benefits for an adult depend on a work history plus current inability to perform a job. A child, by contrast, is unlikely to have a work history, and neither the statute nor the regulations asks

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whether the child can do an adult job. Instead administrative officials ask whether the child’s limitations meet one of the many listed categories of disability or are functionally equiv- alent to one of them. See Sullivan v. Zebley, 493 U.S. 521 (1990). (The language from which Zebley drew the “functional equiv- alence” standard has been deleted by an amendment to §1382c(a)(3)(C)(i), but it remains in a regulation, 20 C.F.R. §416.924.) When determining whether a child’s impairment is functionally equivalent to a listing, the Administration asks whether it produces a marked limitation in at least two—or an extreme limitation in one—of six “domains of function- ing”. 20 C.F.R. §416.926a(a). L.D.R. v. Berryhill, 920 F.3d 1146 (7th Cir. 2019); Hopgood v. Astrue, 578 F.3d 696, 699 (7th Cir. 2009); and Keys v. Barnhart, 347 F.3d 990 (7th Cir. 2003), pro- vide additional details about the operation of this program. Joseph McCavic contends that his son N.A.M. is disabled by acention deficit hyperactivity disorder (ADHD), intellec- tual limitations (an IQ near 70), oppositional defiant disorder, and nocturnal enuresis. He maintains that these conditions meet, or are functionally equivalent to, Listings 112.05, 112.08, and 112.11. 20 C.F.R. Part 404, Subpt. P, App. 1, Pt. B. After receiving evidence from several of N.A.M.’s teachers and medical care providers, an ALJ rejected that contention and found that N.A.M. did not meet any of the Listings and has a marked limitation in only one functional category—“acquir- ing and using information”, 20 C.F.R. §416.926a(b)(1). A dis- trict judge found that decision supported by substantial evi- dence, as do we. An example suffices. A general-education teacher opined that N.A.M.’s skills are “extremely low,” from which McCavic argues that N.A.M. must be “extremely lim- ited” in the domain of acquiring and using information, but his special-education teacher called his skills “average” when

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he was taking his medications. The ALJ was entitled to credit the views of the special-education teacher, who knew N.A.M. well and had a good grasp of gradations among children with intellectual shortcomings. Recognizing how difficult it would be to show that the ALJ’s decision is unsupported by substantial evidence, McCa- vic asks us to use an older version of Listing 112.05, which was amended effective January 2017—after McCavic filed his application but before the ALJ rendered his decision. To sim- plify analysis we assume, as McCavic contends, that N.A.M. met the standards of the old version but not the new one. McCavic contends that N.A.M. acquired rights under the old regulation from his birth through the amendment’s effective date. But the ALJ applied the amendment to the entire claim, because that’s what the amendment itself instructs. The order promulgating this change provides that it applies “to claims that are pending on or after the effective date.” 81 Fed. Reg. 66138 (Sept. 26, 2016). Regulatory changes presumptively apply prospectively, but that presumption can be negated by clear language in a statute or regulation. Bowen v. Georgetown University Hospital, 488 U.S. 204, 208 (1988). Rights under a statute may be said to vest on the date of a judicial decision, for neither Congress nor an agency can alter a judgment once one has been rendered. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). But until then claims that rest on statutes or regulations are contingent, and the rules may change. McCavic does not contend that the change to Listing 112.05 affects any primary conduct. Cf. Riv- ers v. Roadway Express, Inc., 511 U.S. 298, 303–04 (1994). Disa- bility benefits are not designed to encourage people to acquire disabilities or reward them for doing so; limits on a federal

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subsidy differ from penalties. It is therefore unsurprising that we have held that amendments to changes in the rules for dis- ability benefits may be applied to pending cases. See Keys, 347 F.3d at 992–94. As far as we can see, every other circuit that has consid- ered the issue has come to the same conclusion. See, e.g., Combs v. Commissioner, 459 F.3d 640 (6th Cir. 2006) (en banc); cf. Gonzalez v. Cuccinelli, 985 F.3d 357, 372–74 (4th Cir. 2021) (applying Combs to a benefit under immigration law). At oral argument counsel for McCavic asked us to follow the dissent of Judge Clay in Combs, 459 F.3d at 661–76, but the majority’s analysis is more persuasive. McCavic’s brief, which does not cite Combs, had asked us to apply the old rule to time before the amendment and the new rule thereafter. That’s not what Judge Clay proposed. It is what Judge Griffin suggested in a concurring opinion, see id. at 657–61, but it would be impos- sible to reconcile with the agency’s decision, when amending the Listing, to apply the change to all open claims. Neither the Constitution nor any statute denies that option to the agency. AFFIRMED