dissenting:
I respectfully dissent. It may be that the facts do not support the claims that Wendell Powell and Wanda Williams are entitled to Supplemental Security Income. However, the holding of the majority opinion in this class action denies benefits to all class members on the basis of a standard that is contrary to the intent of Congress. In reviewing agency action, we have the responsibility to ensure that an agency of the Executive Branch adheres to clear Congressional statutory directives. To do otherwise is to condone unelected agency appointees subverting the will of the people as expressed through the Congress. The result of the majority opinion is to deny a person under age 18 the equal right with an adult to prove his disability.
The statute involved, 42 U.S.C. § 1382c, states in pertinent part:
An individual shall be considered to be disabled for purposes of this subchapter 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)(A) (emphasis added). In regulations promulgated under this statute, an adult may establish his eligibility in any of three ways by demonstrating he has (1) a listed medical impairment, (2) the medical equivalent of a listed impairment, or (3) vocational factors that would prevent him from finding work in the national economy.
This first route available to both adult and under age 18 claimants is to prove that their impairments meet the criteria of “listed impairments.” 20 C.F.R. § 416.917. The listings are intended to summarize current medical knowledge concerning certain disabling conditions. The listings eliminate the need for further inquiry or evaluation where a condition is generally recognized as severe. These listings appear in Subpart I, Appendix 1, 20 C.F.R. Proof of a listed disease or impairment meeting the degree specified in the listing establishes proof of disability and eligibility for benefits. This evidentiary route to prove eligibility is available to both adults and children.
The second route is to prove the claimant’s impairment is “medically the equivalent” of impairments found in the listing of *1364impairments previously discussed. Such medical equivalents might be established by showing a combination of cardiac impairment, diabetes, and emphysema, which separately might not reach the severity required in the “listed impairments,” but in combination through evidence by one or more physicians establish disability and eligibility under this second category. Both adults and children under age 18 may establish eligibility through this form of proof.
The Secretary, and common knowledge, recognizes that a person may be disabled even though he cannot qualify under either the “listed impairments” or the “medical equivalents” criteria previously discussed. The Secretary has provided a third route for adult claimants to prove disability whereby an adult may establish through a combination of medical and/or vocational factors an inability to work. 20 C.F.R. § 416.902(b). Whether an individual has insufficient residual function and capacity to show unemployability is further discussed in 20 C.F.R. § 416.905. Regarding the establishment of disability, 20 C.F.R. § 416.902 states “[wjhether an impairment in a particular case constitutes a disability is determined from all the pertinent facts of that case.”
The appellants complain that the Secretary has refused to give claimants under the age 18 an opportunity to prove disability based upon consideration of “all the pertinent facts.” Under the Regulations, children may only prove disability by the first two routes, listed impairments or the medical equivalents of the listed impairments. Failing proof of one of these two, eligibility is denied. Thus, it is clear on its face that the Secretary has failed to provide a comparability standard as required by Congress. This is a denial of equal treatment to a particular age group.