Petition for Writ of Certiorari — Acosta v. Sullivan

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In The

Supreme Court of the United States

October Term, 1988

BETSY ACOSTA,

Petitioner,

VS.

DR. LOUIS SULLIVAN, SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

RAFAEL CARRERAS-VALLE

Attorney for Petitioner

P.O. Box 20399

Rio Piedras, Puerto Rico 00928

(809) 767-5665

QUESTIONS PRESINTID

1. Does the Federal Court of Appeals

err when they violate the due process of

law to the petitioner denying her oppor-

tunity to review decision she is entitled

to in the same manner as other Social

Security disability cases?

2. Does the Court below err by

holding that the Secretary's denial of

petitioner's Social Security Disability

Benefits is supported by substantial

evidence?

p74

)

he parties to the proceeding be

were the petitioner, Betsy Acosta, and

respondent, Secretary of Health and Human

Services, Dr. Louis Sullivan, represented

by Honorable William C. Bryson, Acting

Solicitor General, Department of Justice,

Washington, D.C. 20530. Pursuant to the

Social Security Act, he is responsible

for the determination of disability under

Title II disability programs, including

the promulgation of standards, determina-

tion of whether a claimant is disabled

within the meaning of the Social Security

Act, as amended.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ...

LIST OF PARTIES ..ccce

OPINION BELOW ........;

JURISDICTION .wcccccece

es2aiuarm INVOLVED 2.00.

STATEMENT OF THE CASE

e*eeeeeese#8?#88f¢ 8 @

#eeeegeeessese

REASONS FOR GRANTING THE WRIT ...

I.(a) Considering only that

the standard of review for sub-

jective allegation of pain in

light of Section 3(a)(

1) of the

Social Security Disability

Benefits—Reform Act of

Public Law No. 98-460,

1984,

dated

October 9, 1984, 98 STAT 1794 ...

II. Does the Court below err

by holding that the Secretary's

denial of petitioner's

Social

Security Disability Benefits is

supported by substantial evidence..

CONCLUSION eeeeeenee*eeseeeseeesee#eensese@*entseeee#eeee

APPENDICES .cccccccves

CERTIFICATE OF SERVICE

SG I

PAGES

10

12

19

1(a)=-35(a)

20

rental ni Betcis Sonica tonsiner osiamriiasctmanig ay saint lining ince ea ee CIS ee Re ek

ee ea SS a ee eae

TABLE OF AUTHORITIES

CASES PAGES

Bowen v City of New York, et al,

476 U.S. 467, 478, 106 S.Ct.

20ae, 20eo, 90 L.EA. 2a. 426,

C SORRY ww aa a ss ieee nwo enwes ees eK 12

Calero~Toledo v Pearson Yacht

Leasing Co., 416 U.S. 663,

668-6692, W5, (1974) eeeeeee eee ee @ 12

Caulder v Bowen, 791 F.2d. 1460,

1462,(C.A.11th., 1986) eeeeeeeseeee 10

Consolidated Edison Co. v.

N.L.R.B., 36 U.8.- 107, 229,

59 S.Ct. 206, 216, 83 L.Ed.

T2326, CIGOR) cco 6665 66S a VES OO ee ed 13

Mason v Bowen, 791 F.2d. 1460,

1462,(C.A.11, 1986) eeeeveeeveev eee e8e 10

Mathews v Eldridge, 424 U.S.319,

332, 96 S.Ct. 893, 47 L.Ed. 2d.

18, (1976) @eeeeeoe@ee@*ee*es#e?2e#2ctcest5@eeee#2ee#3$ees#s#e# 11

MNorgan v United States, 289 U.S.

468, (1936) *eeeeee#*s#seseeee#se#sesee#*1?ee#ees#288es#e#se?#e#*# 11

Richardson v Perales, 402 U.S.

399,401, 91 S.Ct. 1420, 1427,

fA Lu. Wes 26s GAR CISTY) wes dscees 13

Sherill v Secretary of H.H.S.,

757 F.2d.803, (C.A.6, 1985) eccccces 17

Webb v Weinberger, 371 F.Supp.793,

Piste Ind., 1974) eeeeeeseeeeee800 17

iv

Jessmnereenseappwin-opemes momen essere eset ls SSNS SSESSS Suess ol nS

CONSTITUTION OF THE UNITED STATES

PAGES

Amendment V .eccccccccccccccceces 11-12,19

Amendment XIV *eoseeee@e#*e¢escee#2e¢€e#ertceeese be

STATUTES

28 U.S.C.A. Sections 1254(1) .... re)

ZIGVM GS) cass 5

42 U.S.C.A. Sections 405(g)...... 4-6, 13

402(e)(4)... 5

423(d)(1)(A).. 6

423(d)(5)(A).. 10

FEDERAL RULES OF CIVIL PROCEDURE

Rule 79(a) eenseeteeeeeseeeeeeeeene7ece K

RULES OF APPELLATE PROCEDURE

Rule 40 eeeeeoeeseeeseeeeseseeseeeeenseeeee 2

TABLE OF AUTHORITIES (CONTINUED)

PAGES

REGULATIONS

Section of the Secretary's Regu-

lations, (20 CFR,404.(1988)

404 .335(¢)}( 1) «cs 15

404.969 e*evtpjseeee#e 15

404.971 @*eeee*#*ee#e#es 16

404.1578(a)(b)... 18

Appendix I, Subpart P, of 20 C.F.R.

i 404., et seq. eeeeseeees*ee#etee#e#es 2

MISCELLANEOUS

Social Security Disability Bene-

fits Reform Act of 1984, Pubdlic

Law No. 98-460, 98 STAT. 1794

(1984), Section 3(a)(1) ......2... 10

S. Rep. No. 466, 98th. Cong.,

2d Sess. 24 eeeeee0neoe@ee@e#peeeeeeseeee 10

vi

NO. 88-

IN THE

SUPREMI COURT OF THE UNITED STATES

OCTOBER TERM, 1988

BETSY ACOSTA,

Petitioner,

V.

DR. LOUIS SULLIVAN,

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT

The petitioner, Betsy Acosta, respect-

fully prays to this Court that a writ of

certiorari be issued to review the order

of the United States Court of Appeals for

the First Circuit catered in this case on

August 29, 1988. Petition for Rehearing

was denied on October 25, 1988. Motion

for Reconsideration for rehearing en banc

was denied on December 16, 1988.

OPINIONS BELOW

The Order of the Court of Appeals,

not for publication, Civil Action Number

88-1057, is reprinted in the Appendix

hereto, p. 1(a), 9 pages, infra.

The Order of the Petition for

Rehearing pursuant to Rule 40, Rules of

Appellate Procedure, is reprinted in the

Appendix hereto, p.10(a), 2 pages, infra.

The Order of the Motion for Reconsi-

deration for rehearing en banc, is

reprinted in the Appendix hereto, p.12(a),

1 page, infra.

On October 7, 1987 the United States

District Court of the District of Puerto

Rico rendered an Order affirming the

Secretary's decision denying petitioner

her Widow Disability Insurance Benefits.

Civil Action No. 87-0498(J.A.F.), is

reprinted in the Appendix hereto, p.13(a)-

14, 2 pages, infra.

Judgment entered same date, is reprinted

in the Appendix hereto, p. 15(a), 1 page,

infra. Federal Rules of Civil Procedure

79(a).

On October 8, 1986 the Administrative

Law Judge before whom a hearing was held

on October 3, 1986, rendered a notice of

decision-denial. He found that Mrs. Acosta

impairments do not meet or equal an impair-

ment listed in Appendix I, Subpart P,

Regulations No. 4, Secretary's Regula-

tions. It is reprinted in the Appendix

hereto, p. 16(a)-22, 7 pages, infra.

The Administrative Law Judge's denial

decision became the final decision of the

Secretary of Health and Human Services,

when the Appeals Council on February 24,

1987 sustained the denial decision of the

Administrative Law Judge. It is reprinted

in the Appendix hereto, p. 23(a)-25,

3 pages, infra.

JURISDICTION

Invoking federal jurisdiction under

42 U.S.C.A. Section 405(g), as amended,

the petitioner brought this appeal in

the United States District Court for the

District of Puerto Rico. On October 7,

1987 the Court denied the appeal.

(p. 13(a)-14, infra).

The petitioner appealed before the

United States Court of Appeals for the

First Circuit and on August 29, 1988 the

Court entered judgment affirming the

decision of the District Court. (p.9(a),

infra).

On October %5, 1988 petition for

rehearing was denied. (p.10(a)-11, infra).

On December 15, 1988 petitioner

filed a Notice of Appeal before this Court.

It is reprinted in the Appendix hereto,

p. 26(a)-27, 2 pages, infra.

On January 24, 1989, Honorable

William J. Brennan,Jr., Associate Justice

of the Supreme Court of the United States

ordered that the time for filling this

petition for writ of pietiodns be

extended to and including March 24, 1989.

(A-589), p. 28(a), infra.

The petitioner is including excerpt

from 42 U.S.C.A. Section 402(e)(4) for

consideration by this Court. It is re-

printed in 29(a)-30, 2 pages, infra.

This Court's jurisdiction is invoked

under 28 U.S.C.A. Section 1254(1), 2101(c)

and 42 U.S.C.A. Section 405(¢g).

CONSTITUTIONAL, STATUTORY AND

REGULATIONS PROVISIONS INVOLVED

The Constitutional, Statutory and

Regulations provisions which are relevant

to decision of this case are Amendments V,

which provides in part:

"No person shall..... Be deprived

of life, liberty or property, without due

POCHES OF 2M. ic ci sede ceewescscecece™

and Amendment XIV Section provides in

part:

",eee. Nor deny to any person within

its jurisdiction the equal protection of

EDO LOWE cece crores se essicsecanves”

Judicial review of cases arising

under Title II of the Social Security Act,

aS amended, is provided for in Section

205(g) of the Act, 42 U.S.C.A. Section

405(g), in pertinent part provides:

"(g) «2.6. The judgment of the Court

shall be final except that it shall be

subject to review in the same manner as a

judgment in other civil actions........"

Section 223(d)(1)(A) of the Social

Security Act, as amended, 42 U.S.C.A.

Section 423(d)(1)(A) provides in part:

(d)(1) The term "disability" means-

(A) Inability 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 12 months; or ..cccoeee”™

Congress authorizes the promulgation

of regulations to the Secretary of Health

and Human Services, who in turn delegates

the authority to the Social Security

Administration. The S.S.A. promulgates

regulations as part IV and published in

the Federal Register under 20 C.I.R.

Section 404, Subpart P, et. seq.

STATEMENT OF THE CASE

This petitioner seeks to review the

order of the Court of Appeals for the

First Circuit affirming the judgment of

the District Comet.”

On October 3, 1986 a hearing was held

before an Administrative Law Judge.

Dr. Victor M. Diaz-Bonet, Ophthalmologist,

testified as a medical advisor for the

Administrative Law Judge. He stated that

1/ The U.S. District Judge failed to

mention any law, Secretary's Regulations,

nor any jurisprudence. An error of law.

the petitioner did not suffer from any

impairment which met or equalled in

severity a listed impairment. That

petitioner is unable to work with small

things.

The Administrative Law Judge found

that petitioner met the age requirement

and was the surviving widow of the wage

earner who died fully insured on MNarch 17,

197G. The A.L.J. further sustained the

testimony from the medical advisor without

mention specifically the Section of the

Secretary's Regulations involved in the

case.

On August 26, 1986 Petitioner submitted

a medical report from Dr. Jose Luis Martinez,

Cardiologist, petitioner's treating physi-

Cian, who diagnosed:

1. Ventriculae arrythmia

2. Hyperlipidemia,

3. Probable coronary artery

disease

4. Visual defictis.

The Administrative Law Judge found

the report not pertinent for there is no

evidence of allegations other than visual

to be considered on or before October 1983.

During the hearing Petitioner testi-

fied that she felt very nervous, headaches

migraines and difficulty with her eye

Sight.

On Nay 3, 1985 Petitioner submitted

an ophthalmologist report from Dr. Bernardo

de Paz Reyes and his dhannvese:

"High hyperopic astigmatism right

eye ampliopia.

Left eye subnormal vision esotropia-

phoria alteranating migraine episodes

ocular".

On August 5, 1929 Petitioner was

born. Her husband died on March 17, 1976.

Petitioner was receiving mother's insurance

benefits in November 1976.

REASONS FOR GRANTING

THE WRIT OF CERTIORARI

I.(a) Considering only that the

standard of review for

subjective allegation of

pain in light of Section 3(a)

(1) of the Social Security

Disability Benefits Reform Act

of 1984, Public Law No. 98-460

dated October 9, 1984,

98 STAT. 1794.

"Congress in 1984 established a new

and temporary standard for evaluation of

subjective evidence of pain 42 U.S.C.A.

Section 423(d)(5)(A). This Circuit has

held that Congress intended the new standard

to apply to all cases then pending either

before the Secretary or the Courts. This

Court examined the relative legislation

history and determined the effect of this

change in the law......." (Quoting W. Rep.

No. 466, 98th.Cong., 2d. Sess. 24).

Mason v Bowen, 791 F.2d. 1460, 1462,(11th.

Cir., 1986); Caulder v Bowen, 791 F.2d.

872, 879, (11th. Cir., 1986).

10

This Court should consider whether

the Federal Court of Appeals err when they

violate the due process of law to the

petitioner denying her opportunity to

review decision when she is entitled to

in the same manner as other Social Secu-

rity disability cases. This case is a

Widow Disability Insurance Benefits that

should have been considered in the same

manner as any other disability cases.

Petitioner is entitled to the due

process requirements for a full and fair

review and the equal protection of law as

a right protected by the Fifth Amendment

of the Constitution of the United States.

Morgan v United States, 289 U.S. 468(1936).

"It is well settled that Disability

Insurance Benefits are subject to proce-

dural due process protections."

Mathews v Eldridge, 424 U.S. 319, 332,

96 S.Ct. 893, 47 L.Ed. 2d. 18 (1976).

17

"Puerto Rico is subject to the Due

Process Clause of either the Fifth or

Fourteenth Amendment."

Calero-Toledo v Pearson Yacht Leasing Co.,

416 U.S. 663, 668-669, N.5, (1974).

In this case Respondent applied

improper legal standards.

The Court below misapplied medical

vocational guidelines in determining that

petitioner, who is suffering from poor

vision, migraines, heart disease, was not

disabled.

Bowen v City of New York, et al, 476 U.S.

467, 478, 106 S.Ct. 2022, 2025, 90 L.Ed.

426, (1986).

II Does the Court below err by

holding that the Secretary's

denial of petitioner's Social

Security Disability Benefits

is supported by substantial

evidence.

12

The First Circuit in its denial

decision considered the case "De Novo"

and not in accordance with the Court's

standantd of review as to whether there

exists substantial evidence in the record

to support the Secretary's Findings.

(See 42 U.S.C.A. Section 405(g)). They

failed to consider that the U.S. District

Court failed to comment in its sketchy

decision. Under this standard, the

question is whether the record contains

"such relevant evidence as a reasonable

mind might accept as adequate to support

a conclusion".

Richardson v Perales, 402 U.S. 399, 401,

91 S.Ct. 1420, 1427; 28 L.Ed. 2d. 842,

(1971), quoting Consolidated Edison Co. v.

N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206,

216, 83 L.Ed. 126, (1938).

13

The Circuit Court cited that the

earlier period to be considered is

November 1983 according to 42 U.S.C.A.

Section 402(e).

The ruling in the present case direc-

tly conflicts with Section 402(e)(1)(B)(1),

in pertinent part provide:

"(4) The period referred to in

paragraph (1)(8)(i) in the case of anv

widow....... is the period beginning with

whichever of the following is the latest:

Pe eeadeneeene} or

(B) eoeeeeeees or

Pe? sntceedcest BF

and ending with the month before the month

in which she attains age 60, or, if earlier,

with the close of the eighty-fourth months

following the month with which such period

began." (Supp. 1988). (It is reprinted in

the Appendix hereto, p. 29(a)-30, 2 pages,

infra).

Petitioner attained age 50 on August

5, 1979 (date of entitlement to widow's

benefits), eight-four months following the

month with which such period began will be

in August 1986 and not October or November

1983, as stated by the Secretary

14

and the Court. The medical evidence

submitted by the petitioner should be

considered by the Secretary and the Courts

below. (Please see Section 404.335(c)(1)

of the Secretary's Regulations, 20 C.F.R.

Section 404.335(c)(1), (1988).

The Secretary as well as the Circuit

Court's denial of petitioner's Widow

Disability Benefits which was based on

finding that petitioner had not severe

impairment was not supported by substan-

tial evidence, in view of lack of any

explanation for review physician's

"not severe” conclusion.

The Appeals Council failed to consi-

der Section 404.969 of the Secretary's

Regulations, 20 C.F.R. Section 404.969,

(1988), in pertinent part provide:

",.ee.- Anytime within 60 days after

the date of the hearing decision or

dismissal, the Appeals Council itself may

decide to review the action was taken..."

15

On November 26, 1986 Petitioner

filed a Request for Review of Hearing

Decision/Order before the Appeals Council.

It was not wats February 24, 1987

(Ninety (90) days had elapsed), the

Appeals Council sustained the denial-

decision of the Administrative Law Judge.

| At the same token, Section 404.971

of the Secretary's Regulations, (20 C.F.R.

Section 404.971,(1988), in pertinent part

provide:

"The Appeals Council will dismiss

your request for review if you did not

file your request within the stated period

of time and the time for filing has not

been extended."2/

The Appeals Council's actions on

petition's review violated her right to

due process as well as applicable federal

regulations.

2/ The stated period of time is sixty,

(60) days.

16

Since the Appeals Council did not

address the onset of petitioner disabi-

lity in its order of February 24, 1987,

this Court should remands this matter to

the Appeals Council for the limited pur-

pose of deciding the issue raised by the

petitioner's appeal.

"It is not function of medical

advisor in Social Security Disability

cases to make decision as to existence

of claimed disability but rather to teach

or explain complex medical data to

layman examiner."

Webb v Weinberger, 371 F.Supp. 793,

(D.C., Be@s, W74).

The medical advisor failed to

explain the complex medical data to the

Administrative Law Judge.

"Testimony of a medical advisor is

entitled to less weight than the reports

of any other physician who examined the

Claimant for a period of time."

Sherill v Secretary of H.H.S., 757 F.2d.

803, (C.A.6, 1985).

17

Sections 404.1578(a) and (b) of

the Secretary's Regulations, (20 C.F.R.

404.1578(a) and (b),(1988), in pertinent

part provides:

How we determine disability for

WidOW. ccccece

"(a) we will find that you are

disabled and pay you widow's benefits as

a widow. eeesve if-

(1) your impairment(s) has specific

clinical findings that are the

same as those for any impairment

in the Listings of Impairments

in Appendix I or any medically

equivalent to those for any

impairment shown there;

(2) your impairment(s) meets the

duration requirement."' (Emphasis

added).

The Secretary and the Courts below

failed to consider then properly.

18

CORCLYS | OF

Petitioner respectfully prays to

this Court that she is entitled to the

equal protection of law as expressed by

the Fifth Amendment , pursuant to the

Social Security Disability Benefits

Reform Act.

RESPECTFULLY SUBMITTED,

4 9 Wa)

HAP Erm whl

7 T

RAFAEL CARRERAS-VALLE, ESQ.

COUNSEL FOR PETITIONER

P., O. BOX 20399

RIO PIEDRAS, P.R. 00928

PHONE (809) 767-5665

March , 1989

19

NO. 88-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

BETSY ACOSTA,

Petitioner,

Vs.

DR. LOUIS SULLIVAN,

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

. THE UNITED STATES COURT OF APPEALS FOR

' THE FIRST CIRCUIT

CERTIFICATE OF SERVICE

I, Rafael Carreras-Valle,Esquire, a

member of the Bar of this Court, hereby

certify that on this th. day of March,

1989, three copies of the petition for

writ of certiorari in the above-entitled

case was mailed, first class postage

prepaid to:

Hon. William C. Bryson

Acting Solicitor General

Department of Justice

Washington, D.C. 20530

Kad bree (eh

AD fae ARRERAS-VALLE, ESQ.

COUNSEL FOR PETITIONER

March , 1989

20

» 2° DBD FF & ES

Order of the U.S. Court of

Appeals for the First Circuit

dated August 29, 1988 @eeeeeeee#eee#e#e

Petition for Rehearing denied

Gated OClLCOGP Zo, THES se ececnsenes

Order of Court the Motion for

reconsideration or for rehearing

en banc is denied dated,

December

16, 1988 @#eeoeeoeoeee*ee#e#e?8eee#ee?#e#e#*e

Opinion and Order of the

District Court dated ,

October ¥¢ 1987 @eeoeeeee##e$#8cee#eee#e#e#e#e#e#@

Judgment entered on

October tT 1987 @eeeseeoeee*ee#ee#*e#e#€e@¢@e?2ee?2ee8eeeee

Notice of

Decision-—-Denial dated,

October 8, 1986 .ccccccccccccccecs

Appeals Council's decision

dated February 24, 1987,

sustaining the A.L.J.'s denial

decision

Notice of

eeeeeeeeeeteeseesmeneeeeeeeeee @

Appeal to the Supreme

Court of the United States, dated,

December 15, 1988 .ccccccccccvecces

Order Extending Time to Tile

Petition for Writ of Certiorari

dated January 24, 1989 ..cccceeces

Excerpt from 42 U.S.C.A. Section

402(e) (4)

PAGES

1(a)-9

10(a)-11

12(a)

13(€a)-14

15(a)

16(a)=25

26(a)-30

31(a)-32

33(a)-34

35(a)-36

(NOT FOR PUBLICATION)

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 88-1057

BETSY ACOSTA,

Plaintiff-Appellant,

Vv.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

(Hon. José A. Fuste, U.S. District Judge)

Before

Campbell, Chief Judge,

Coffin and Selya, Circuit Judges..,

Rafael Carreras-Valle on brief for

Appellant. Donna J. Fuchsluger, Office of

the General Counsel, Social Security Division,

Department of Health and IIuman Services,

Daniel F. Lopez Romo, United States Attorney,

Donald A. Gonya, Chief Counsel for Social

Security, Randolph W. Gaines, Deputy Chief

Counsel for Social Security Litigation, and

A. George Lowe, Chief, Disability Litigation

Branch, on brief for appellee.

AUGUST 29, 1988

1(a), 9 pages

Der Curiam. Claimant applied for widow's

benefits based on visual problems. The Secre-

tary denied benefits, and claimant sought

judicial review. ,

Claimant's main arguments seem to be that

the Secretary incorrectly computed her last

date of eligibility and placed too much or

improper reliance on the medical advisor's

testimony. We deal with these points.

1. Eligibility date. Claimant applied

for benefits in February 1986 claiming disa-

bility since April 30, 1985. Benefits were |

initially denied on the ground that under

the statute and regulations claimant's

condition had to be disabling on or before

March 17, 1983 in order to be eligible for

benefits. Claimant thereafter amended her

onset date to March 17, 1983. On further

administrative review, the administrative Law

Judge (ALJ) and the Appeals Council determined

that the correct date before which disability

1(a), page 2

had to be established was October or

November 1983, seven years after October

1975, the last month in which claimant was

entitled to mother's benefits. Claimant

argues that the correct date should be

August 1986, by which time, claimant says,

she had disc problems, coronary artery

disease, ventricular arrhythmia, and depres-

Sion in addition to her visual loss, ailments

which the Secretary did not consider.

Claimant's brief, however, contains no

comprenhensible argument explaining why

August 1986 should be the correct date.

The relevant regulation for calculating

the eligibility date is 20 C.F.R. S 404.335

(c)(1) which provides in material part as

follows:

You may be entitled to benefits

as the widow or widower of a

person who was fully insured when

he or she died. You are entitled

to these benefits if --

1(a), page 3

(c) You are... at least 50 years

Old and have a disability as

defined in S 404.1577 and --

(1) The disability started no

later than 7 years after the

insured died or 7 years after

you were last entitled to mother's

or father's benefits......."

Claimant's husband died March 17, 1976.

Seven years from then is March 17, 1983. A

form in the record (A=-58) gives November

1976 as the last month of entitlement to

mother's benefits. Seven years from then

is November 1983. Claimant does not explain

and we do not see how, claimant arrives at

an August 1986 date. On the present record,

we see no basis to question the Secretary's

1983 date, and as the only medical report

concerning the coronary and other problems

is dated August 27, 1986, the Secretary did

not err in limiting the disability conside-

ration to claimant's visual problems.

2. Reliance on medical advisor. The

medical evidence consisted basically of

reports from claimant's treating physicians,

1(a), page 4

Dr. Gorbea who first saw claimant in 1959,

and Dr. De Pax who first saw her in

March 1983. In 1959, right eye vision was

20/300, but the left eye, without correction

was 20/30 and 20/20 with correction.

Despite her vision problems, claimant appar-

ently was able to function fairly well,

for in 1977, shortly after her husband died,

she began working, first typing and then

later, when her sight worsened, filing and

as a receptionist. She continued working

until 1982 when the company went bankrupt.

Also, she held a driver's license from at

least February 1980 to February 1984. In

April 1985 when Dr. DePaz examined her,

right eye vision had deteriorated to 20/400

and the left eye was 20/60. Dr. De Paz

wrote “her condition disables her to do

work attieteneiy because of no Stereopis

and poor fixation causing double vision

when working in the near range." A year

1(a), page 5

later, in May 1986, claimant was reexa-

mined by both Dr. gorbea and Dr. De Paz.

Her right eye was 20/400 according to

Dr. Gorbea. Visual acuity in the left eye

with corrective lenses for distance viewing

was 20/25 according to Dr. Gorbea and 20/40

according to Dr. De Paz. Corrected left

eye near vision was 20/25 (Dr. Gorbea) or

20/40 (Dr. De Paz).

The medical advisor (MA), after viewing

the reports, explained as foliows. Claimant

had a refraction defect and, as a consequence

had probably been cross-eyed since birth.

Due to that condition, her right eye had not

developed properly and its vision was very

poor. Her left eye vision was subnormal --

20/50 he said -- which did not meet the

listings. As for how the vision problen

affected claimant functionally, the liA stated

the following: "I suspect by the manner in

which she managed _ movement looking for

her purse that (her vision) should be enough

1(a), page 6

in order that she could engage in routine

things, and it isn't sufficient if she

had to work with extremely small things,

which demand a lot of concentration." He

felt that from a visual point of view,

Claimant could hold an eight hour a day

job, five days per week, as long as the

work did not entail extreme concentration

on close work.

As we explained in Rodriguez v.

Secretary, 647 F.2d. 218, 220 (1st.Cir. 1981)

to be entitled to widow's benefits, the

widow must have either a listed impairment

or one medically equivalent to a listing.

The relevant listing in this case is

20 C.F.R. Part 404, Subpart P, App. 1,

S 2.02 which, in order to establish disabi-

lity, requires the "(r)emaining vision in

the better eye after best correction (to be)

20/200 or less." The Secretary concluded

Claimant's visual impairment did not meet

1(a), page 7

or equal any listing and hence denied

benefits.

Claimant complains that the ALJ did

not specify by number the listing he was

considering and, counsel argues, the

medical adivisor went beyond his proper

realm (which claimant would limit to |

explaining medical terms) when the TIA said

Claimant did not meet the listings.

A simple reading of the listings makes

obvious which listing is relevant, and

Claimant has not pointed to any listing

she claims to meet. Nor did the MA exceed

his proper role when, after examining the

treating doctors' reports, the NA explained,

in essence, that under said reports, no

listing was met. Rodriguez v Secretary,

647 F.2d. 218, 223-24 (1st.Cir.1981).

We find no error and conclude that the

1(a), page 8

Secretary's decision is supported by

substantial evidence on the record as a

whole. All of claimant's remaining

arguments have been considered, but do

not merit discussion.

Affirmed.

1(a), page 9

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 88-1057

BETTY ACOSTA,

Plaintiff-Appellant,

Vv.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendant-Appellee.

Before

Campbell, Chief Judge,

Coffin and Selya, Circuit Judges.

ORDER OF COURT

Entered October 25, 1988

The petition for rehearing is denied.

We read the last three lines of 42 U.S.C.A.

S 402(e)(4), particularly the words "if

earlier,”

to direct that the period before

which disability must be established will

end with the earlier of the following two

dates: 1) the month before the month in

10(a), 2 pages

which claimant attains age 60 or 2) 84 months

after the date arrived at from applying S

402(e)(4)(A), (B),-or (C).

Claimant's entitlement to mother's ben-

efits ended, according to the record, in

November 1976. Eighty-four months from then

was November 1983. As November 1983 is a

date earlier than the month before the month

in which claimant turned 60, November 1983

is therefore the date by which disability

had to be established.

By the Court:

(s): Francis P. Scigliano

Clerk.

(cc: Messers. Carreras-Valle and

Fuchsluger) (U.S. Attorney,

U.S. Dept. of Justice and

Romano)

10(a), page 2

UNITED STATES. COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 88-1057

BETSY ACOSTA,

Plaintiff-Appellant,

Vs.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendant-Appellee.

Before

Campbell, Chief Judge,

Coffin, Bowenes, Breyer, Torruella

and Selya, Circuit Judges.

ORDER OF COURT

Entered December 16, 1988

The motion for reconsideration or for

rehearing en banc is denied.

By the Court:

(s.t) FRANCIS P. SCIGLIANO

Clerk.

(cc: Mr. Carreras-Valle and

Ms. Fuchsluger)

12(a)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

BETSY ACOSTA, Widow, *

JOSE JAINE VALLES, WE *

*

Plaintiff, * Civil No.

*

v. 6 87-0498( JAF)

*

*

*

*

*

SECRETARY OF HEALTH

AND HUMAN SERVICES,

Defendant

OPINION AND ORDER

This is an action brought under section

205(g) of the Social Security Act, as

amended, 42 U.S.C.A. Sec. 405(g), to review

a final determination by the Secretary of

Health and Human Services ("Secretary")

denying plaintiff a period of disability

and disability insurance benefits.

After careful consideration of all the

evidence in this case, as well as the

Secretary's findings and the arguments

raised by both parties, this court holds

that the Secretary's decision is supported

13(a), 2 pages

by substantial evidence in the record as

a whole. Richardson v Perales, 402 U.S.

389, 401 (1971).

By virtue of this determination, and

in light of the Social Security Act and t

the applicable case law and regulations,

the Secretary's decision is hereby

AFFIRMED.

IT IS SO ORDERED.

San Juan, puerto Rico, this 7th. day

of October, 1987.

(s.) JOSE ANTONIO FUSTE

(s.t.) JOSE ANTONIO FUSTE

U.S. District Judge

13(a), page 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

BETSY ACOSTA, Widow .

JOSE JAIME VALLES,WE *

*

Plaintiff, * Civil No.

*

= * 87~-0498(JAP)

SECRETARY OF HEALTH ‘

AND HUMAN SERVICES *

Defendant. ;

JUDGMENT

Under the terms of an Opinion and

Order entered by this court today, and in

light of the Social Security Act and

applicable law and regulations, judgment

is hereby entered affirming the decision

by the Secretary of Health and Human

Services.

IT IS SO ORDERED.

San Juan, Puerto Rico, this 7th. day

of October, 1987.

(s.) JOSE ANTONIO FUSTL

(s.t.) JOSE ANTONIO FUSTE

U.S. District Judge

15(a)

DEPARTMENT OF

HEALTH AND HUMAN SERVICES

Social Security Administration

Office of Hearings and Appeals

DECISION

IN THE CASE OF CLAIM FOR:

Betsy Acosta de Widow's Insurance

Vailes AKA Benefits (Disability)

Elisa Isabel Acosta

(Claimant)

Jose J. Valles 581-09-7745

(Wage Earner) (Social Security No.

This case is before the Administrative Law

Judge on a request for hearing. The Admin-

istrative Law Judge has carefully considered

all the documents identified in the record

as exhibits, the testimony at the hearing

and the arguments presented.

ISSUES

The general issue before the Administrative

Law Judge is whether the claimant is entitled

to widow's insurance benefits (disability)

16(a), 10 pages

under sections 202(e) and 223 of the Social

Security Act, as amended. The Social Sec-

urity Act provides that a widow shall not

be determined to be under a disability un-

less her physical or mental impairment or

impairments are of a level of severity which

under regulations prescribed by the Secre-

tary is deemed to be sufficient to preclude

an individual from engaging in any gainful

activity.

The specific issues are whether the claim-

ant has attained age 50, whether she is un-

married and whether she is under a "disa-

bility" as defined in the Act; and if on,

when such "disability" commenced and the

duration thereof.

APPLICABLE REGULATIONS AND EVALUATION

OF THE EVIDENCE

Pursuant to the Act, the Secretary has es-

tablished Social Security Administration

Regulations No. 4. Section 404.1577 of the

16(a), page 2

i

regulations provides that for an individual

to be entitled to a widow's benefits as a

disabled widow, she must have a 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 12

months. The impairments must be of a level

of severity to prevent a person from doing

any gainful activity. Age, education, and

work experience are not considered in deter-

mining whether a widow is under a disability.

Section 404.1578 provides that a widow who

is not doing substantial gainful activity,

will be found disabled if--

(1) The impairment(s) has specific

clinical findings that are the

same as those for any impairment

in the Listing of Impairments in ,

Appendix 1 to Subpart P of Regula-

tions No. 4 or are medically equiv-

alent to those for any impairment

shown there;

16(a), page 3

(2) The impairment(s) meet(s)

the duration requirement.

In addition, section 404.335 provides, in

effect, that the disability must have started

not later than 7 years after the insured

died or 7 years after the claimant was last

entitled to "survivor's benefits, whichever

is later.

In applying the definition of disability

outlined above, the Administrative Law Judge

concludes that the claimant does not have

an impairment which is listed in Appendix

1 and that she does not have an impairment

or combination of impairments which is med-

ically equivalent to a listed impairment.

Accordingly, it must be found that the

claimant is not disabled within the mean-

ing of the Social Security Act.

The record shows that claimant was married

to the wage earner for over ten years. He

16{a), page 4

died on March 17, 1976, while fully insured.

The specified period-referred to in Sec-

tion 202(e) of the Social Security Act ex-

tends to October, 1983, seven years after she

stopped receiving mother's benefits. The

claimant has no prior work experience and

alleges disability since April, 1985 changed

to October, 1983, due to visual medical com-

plaints. Claimant was born on August 5,

1929, and is presently fifty-seven years of

age. Claimant stopped working in 1982 when

the business she worked for went bankrupt.

In order to qualify for benefits as disabled

widow under the Social Security Act, she

must establish that she is at least fifty

years of age but not sixty; that she is the

widow of a wage earner who died fully in-

sured, and, that she has physical or mental

impairments which, under the regulations

16(a), page 5

promulgated by the Secretary, are deemed to

be of such severity as to preclude her from

engaging in any gainful activity.

The claimant's impairments must be manifest

within a specified period which is seven

years from the month of the insured wage

earner's death, or from the month she stopped

receiving mother's benefits.

The test of disability for a widow was de-

liberately designed to be more strict than

the definition of disability which applies

to an insured worker. Section 223{d)(2) of

the Act specifically provides that a widow:

"shall not be determined to be under

a disability unless her physical or

mental impairment or impairments

are of a level of severity which

under regulations prescribed by the

Secretary is deemed to be suffi-

cient to preclude an individual from

engaging in any gainful activity."

Thus, a widow with an impairment or impair-

ments which are not listed in the Appendix

16(a), page 6

—— a

. ‘

1 to the Secretary's Regulations, or which

are not medically the equivalent in severity

to a listed impairment, cannot be found dis-

abled. A determination of "disability", and

a claim for Widow's Insurance Benefits based

thereon, unlike wage earner's cases, is made

without regard to non-medical factors such

as age, education, and prior vocational ex-

perience--the fact that a widow has never

worked or would be unable to hold productive

employment is not a matter of consideration.

In other words, the severity of the widow's

impairment must be evaluated on the basis

of medical consideration alone; impairments

which do not meet or equal the level of se-

verity in the Listing of Impairments may not

serve as a basis for a finding of "disabil-

ity" . 7

At the hearing on August 27, 1986 report

16(a), page 7

Peer eee eee ee ee a

(Exhibit 26) from Dr. J.L. Martinez was con-

sidered not pertinent for there is no evidence

whatsoever of any allegation other than vis-

ual to be considered on or before October,

1983. Disability must be found to have oc-

curred on or before that date.

Regarding the visual condition the medical

evidence reveals there is hyperopia, astig-

matism, estrabismus and amblyopia with best

correction of 20/50, 20/60 in the best eye

(Exhibits 24, 17, 16, 15, 14). This does

not meet or equal the Listings as per the

impartial medical advisor and reported find-

ings. Claimant, thus, cannot be considered

entitled to Disabled Widow's Insurance Ben-

efits because of a visual impairment.

FINDINGS

After careful consideration of the entire

record, the Administrative Law Judge makes

16(a), page 8

the following specific findings:

1. The claimant was born on August 5, 1929.

2. The claimant is the widow of the wage

earner, who died fully insured on March

17, 1976, and the claimant is not married.

3. The period during which the claimant

must establish that she is under a

disability extends through November,

1983.

4. The medical findings shown in the med-

ae

ical evidence of record establish the

existence of hyperopia, astigmatism,

amblyopia OD.

5. The medical evidence of record does

not establish that the claimant's

impairment(s) has specific clinical

findings that are the same as those

for any impairment in the Listing of

Impairments in Appendix 1 (20 CFR

404.1

Ww

25)

-

16(a), page 9

6. The medical evidence of record does not

establish that the claimant has any im-

pairment or combination of impairments

which is medically equivalent to an im-

pairment listed in Appendix 1 (20 CFR

404.1526).

7. The claimant was not under a "disabil-

ity, as defined in the Social Security

Act, at any time through the date of

this decision (20 CFR 404.1578).

DECISION

It is the decision of the Administrative Law

Judge that the claimant is not entitled to

widow's insurance benefits (disability) un-

der sections 202(e) and 223, respectively,

of the Social Security Act.

(s) RAMON E. QUINONES

(s.t.) | RAMON E. QUINONEZ

Administrative Law

Judge

October 8, 1986

Date

16(a), page 10

DEPARTMENT OF HEALTH SOCIAL SECURITY

AND HUMAN SERVICES ADMINISTRATION

February 24, 1987

Refer to: Office of Hearings

and Appeals

SGC PO Box 3200

581-009-7745 Arlington VA 22203

ACTION OF APPEALS COUNCIL ON REQUEST FOR REVIEW

Ms. Betsy Acosta

Genova A 4-4 Ext. Villa Caparra

Guaynabo, PR 00657

Dear Ms. Acosta:

The request for review of the Administrative

Law Judge's Decision in your case has been

considered.

Social Security Administration regulations

provides that the Appeals Council will grant

a request for review where: (1) there ap-

pears to be an abuse of discretion by the

Administrative Law Judge; (2) there is an

error of law; (3) the Administrative Law

Judge's action, findings, or conclusions

26(a), 5 pages

are not supported by substantial evidence;

or (4) there is a broad policy or procedural

issue which may affect the general public

interest. (These provisions are contained

in 20 CFR 404.970 for Social Security claims

under Title II of the Social Security ore

and in 20 CFR 416.1470 for supplemental se-

curity income claims under Title XVI of the

Act.)

The Appeals Council has concluded that there

is no basis under the above regulations .for

granting your request for review. According-

ly, your reguest is denied and the Adminis-

trative Law Judge's decision stands as the

final decision of the Secretary in your

case.

The Appeals Council notes that the speci-

fied period for establishing that your con-

dition was disabling ended on October 31,

1983, 7 years after October 1976, the last

month in which you were entitled to mother's

26(a), page 2

benefits.

If you desire a court review of the Admin-

istrative Law Judge's decision, you may com-

mence a civil action by filing a complaint

in the United States District Court for the

judicial district in which you reside within

sixty (60) days from the date of receipt of

this letter. It will be presumed that this

letter is received within five (5) days after

the date shown above unless a reasonable

showing to the contrary is made. The com-

plaint should name the Secretary of Health

and Human Services as the Defendant and

should include the Social Security number(s)

shown at the top of this notice. The right

to court review is provided for in Section

205(g) of the Social Security Act, as amend-

ed (42 U.S.C.A. 405(g) for claims under Title

II and in Section 1631(c)(3) of the Act

26(a), page 3

EE aaa

(42 U.S.C.A. 1383(c)(3) for claims under

Title XVI.

If a civil action is commenced, the Secret-

ary must be served by sending a copy of the

Summons and complaint by registered or cer-

tified mail to the General Counsel of the

Department of Health and Human Services at

200 Independence Avenue, S.W. Washington,

D.C. 20201. (See Rules 4(c)(2) and (d)(4)

and (5) of the Federal Rules of Civil Pro-

cedure and Part 45, Section 4.1 of the Code

of Federal Regulations.) In addition, you

must serve the United States Attorney for

the district in which you file your complaint

and the Attorney General of the United States,

as provided in the Federal Rules of Civil

Procedure.

Sincerely yours,

(s) William Raffel

26(a), page 4

(s.t.) William Raffel

Member, Appeals Council

CC.

Rafael Carreras-Valle

ty

W

QO

DO, Bayamon, PR

HO, Bayamon, PR (ALJ Quinones)

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NO. 88-1057

BETSY ACOSTA

SSN: 581-09-7745

Plaintiff-Appellant,

Vs.

SECRETARY OF HEALTH AND HUMAN SERVICES

Defendant-—Appellee

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF PUERTO RICO

NOTICE OF APPEAL TO THE SUPRENE COURT

OF THE UNITED STATES

Notice is hereby given that, BETSY ACOSTA,

the Plaintiff above named, hereby appeals

to the Supreme Court of the United States

from the final Order dismissing the Peti-

tion for Rehearing entered in action on

october 25, 1988.

This appeal is taken pursuan to

28 U.S.C.A. Section 2101{c).

31(a), 2 pages

At Rfo Piedras, Puerto Rico,

December 15, 1988.

(s) RAFAEL CARRERAS-VALLE

(s.t.) RAFAEL CARRERAS-VALLE, Esa.

Counsel for Plaintiff-

Appellant

P. O. Box 20399

Rio Piedras, P.R. 00928

PHONE (809) 767-5665

CERTIFICATE OF SERVICE BY MAIL

I HEREBY CERTIFY tha ton this same date,

a copy of this Notice of Appeal to the

Supreme Court of the United States was

mailed to: 7

Donna Fuchfluger, Esquire

Office of the General Counsel

Dept. of H.H.S.

Social Security Division

Room 639 Altmeyer Bldg.

6401 Security Boulevard

Baltimore, Maryland 21235

(s) RAFAEL CARRERAS-VALLE

(s,t.)RAFAEL CARRERAS—-VALLE, isq.

Plaintiff-Appellant's Councel

December 15, 1988

31(a), page 2

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

JOSEPH F. SPANIOL, JR. Area Code 202

Clerk of the Court 479-3011

January 24, 1989

Mr. Rafael Carreras-Valle

P.O. Box 20399

Rio Piedras, P.R. 00928

RE: Betsy Actosta v Secretary of Health

and Human Services A-589

Dear Mr. Carreras-Valle:

Your application for an extension of

time to file a petition for a writ of cer-

tiorari in the above-entitled case has been

presented to Justice Brennan, who on Janu-

ary 24, 1989, signed an order extending your

time to and including March 24, 1989.

A copy of the Justice's order is en-

closed.

Very truly yours,

(s.t.) JOSEPH F. SPANIOL, JR.

CLERK

33(a), 2 pages

By:

(s.) Francis J. Lorson

Francis J. Lorson

(s.t.) Chief Deputy Clerk

lg

CC: Solicitor General

Clerk, USCA 1st-Circuit

(No. 88-1057)

33(a), page 2

EXCERPT FROM 42 U.S.C.A. SECTION 402(e) (4)

(e) Widow's insurance benefits

(1) The widow (as defined in section

416(c) of this title) and every surviving

divorced wife (as defined in section 416(d)

of this title) of an individual who died a

fully insured individual, if such widow or

such surviving divorced wife--

(A) is not married,

(B)(i) has attained age 60 or (ii)

has attained age 50 but has not attained age

60 and is under a disability (as defined in

~*~ section 423(d) of this title) which began

before the end of the period specified in

paragraph (4),

(4) The period referred to in para-

graph (1)(B)(ii), in the case of any widow

or surviving divorced wife, is the period

35(a), 2 pages

ee EN ee NONE er a TO ne TN SE NSE LR aR en ee a EE ST

Re ae

beginning with whichever of the following is

the latest:

(A) the month in which occurred

the death of the fully insured individual

referred to in paragraph (1) on whose wages

and self-employment income her benefits are

or would be based or

(B) the last month for which she

was entitled to mother's insurance benefits

on the basis of the wages and self-employ-

ment income of such individual, or

(C) the month in which a previous

entitlement to widow's insurance benefits on

the basis of such wages and self-employment

income terminated because her disability had

ceased,

and ending with the month before the month in

which she attains age 60, or, if earlier, with

the close of the eighty-fourth month follor

2,

cand

|

QO

the month with which such period began.

35(a), page 2