Petition — Green v. Schweiker

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ALEXANDER L. STEVAS,

CLERK

NO

\

SUPREME COURT OF THE UNITEB- STATES

October Term, 1980

ARTHUR K. GREEN, JR.

Petitioner

vs.

Richard S. Schweiker, Secretary of

Health and Human Services

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Barry L. Moon, Attorney

Barry L. Moon, P.C.

Counsel for Petitioner

14292 N. Fenton Road

Fenton, Michigan 48430

(313) 629-8801

Counsel of Record

Barry L. Moon, P.C.

QUESTION PRESENTED

WHAT IS THE EVIDENTIARY SIGNIFICANCE

IF ANY, OF A VETERAN'S ADMINISTRATION

FINDING OF 100% DISABILITY OF AN APPLI-

CANT, ON A SUBSEQUENT DEPARTMENT OF

HEALTH, EDUCATION AND WELFARE DETER-

MINATION OF DISABILITY OF THE SAME

APPLICANT UNDER THE SOCIAL SECURITY

ACT?

TABLE OF CONTENTS

page

Petition for Writ of

Certiorari

Decision Below

Outline of Case 1

Prayer for relief 4

Appendix 5

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner prays that this Court review

the judgment herein.

Decisions Below

No official citations. The appendix

contains the lower Court decisions.

Jurisdiction

The date of the order from which relief

is sought is November 24, 1980. No

rehearings were sought. No extensions

have been prayed for at any time.

The statutory provision believed to confer

jurisdiction-on this Court is 28 U.S.C.

§1254, §1331 and §1346

PETITION FOR WRIT OF CERTIORARI

Outline of Case

Petitioner moved the District Court for

remand because of the Secretary-Respondent's

disregard, in the analysis of a Social

Security disability claim, of the uncon-

troverted fact that the Veteran's Admin-

istration had made a prior determination

that the petitioner claimant was 100%

disabled under the same basic criteria

used by the Secretary-Respondent.

The Sixth Circuit Court of Appeals held

that;

"Plaintiff's reliance on the

Veteran's Administration's

determination of 100% disability

is insufficient to meet his burden

in light of the overwhelming

contrary evidence supporting the

Secretary."

WHAT IS THE EVIDENTIARY SIGNIFICANCE IF

ANY, OF A VETERAN'S ADMINISTRATION

1

FINDING OF 100% DISABILITY OF AN APPLICANT

ON A SUBSEQUENT DEPARTMENT OF HEALTH,

EDUCATION AND WELFARE DETERMINATION OF

DISABILITY OF THE SAME APPLICANT UNDER

THE SOCIAL SECURITY ACT?

This petitioner urges the position that

where the evidence before the Secretary

on the initial determination is that a

100% disabled, (Veteran's Administration

determination), Viet Nam Veteran is

totally and permanently disabled by

obesity, heart disease, hypertension and

that these disabilities are service

connected, then the Secretary cannot

disregard the Veteran's Administration

finding of disability and service connec-

tion.

In the case at bar the tenor of the

Secretary's and lower court findings was

that if the applicant would loose weight

he would not have high blood pressure

and that evidence of heart disease would

be minimal. These findings by innuendo

do not take into account any evidence

that the claimant is capable of controlled

weight loss. These findings were made in

the face of evidence, that was not

accepted into the consideration, that the

obesity and related diseases were pre-

cipitated by the effects of war and other

service activity.

Petitioner contends that the fair and

equal administration of this remedial

statute, 42 U.S.C.§ 423 (d) (1) (A)

requires a remand to the Secretary to

consider and compare the award of another

agency. Richardson vs. Richardson,

333 F.Supp. 890 (1971, D.C. VA).

The Court has jurisdiction to consider

this matter because there is no other

review provided for this question.

Therefore this court has jurisdiction

Hospital, Inc. vs Weinberger, 376 F. Supp

1099 (1974, D.C. Fla) rev'd on other

grounds, 517 F 2d 329 (5th Cir.) mod on

other grounds and reh den 522 F 2d 179

(5th Cir.) cert denied 425 U.S. 935.

For the reasons aforesaid, it is

respectfully prayed that a Writ of

Certiorari be granted.

Respe ully submitted,

Barry 9

Counsel of ‘Record

Barry L. Moon, P.C.

14292 North Fenton Road

Fenton, Michigan 48430

(313) 629-8801

>» we

“AAPPENODI &X

Page

JUDGMENT a.

MEMORANDUM OPINION AND

ORDER b.-d.

ORDER FROM THE UNITED STATES

COURT OF APPEALS e.-i.

PETITION FOR A WRIT OF CERTIORARI jj.

42 U.S.C. $& 423 (d) (1) (A) j.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ARTHUR K. GREEN, JR.

Vv.

JOSEPH A. CALIFANO, JR., Secretary of

Health, Education and Welfare,

JUDGMENT

This action came on for hearing before the

Court, Honorable James Harvey, District

Judge, presiding, and the issues having

been duly heard and a decision having been

rendered,

IT IS CRDERED AND ADJUDGED that the

plaintiff take nothing and that the action

be dismissed.

Dated: June 29, 1979 JOHN P. MAYER, CLERK

BY: Ruth A. Jozwiak,

Deputy Clerk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ARTHUR K. GREEN, JR.

Vv. CIVIL ACTION

NO: 77-40167

JOSEPH A. CALIFANO, JR.,

| SECRETARY OF HEALTH, EDUCATION,

AND WELFARE

MEMORANDUM OPINION AND ORDER

At a session of said Court, held in

the Federal Building, Flint, Michigan

on June 28, 1979

PRESENT: HONORABLE JAMES HARVEY

United States District Judge

This action is brought by plaintiff to

obtain judicial review of a final decision

of the Secretary of Health, Education and

Welfare denying his claim for disability

insurance benefits. The case is before

the Court on plaintiff's motion to remand

to the Secretary for further consideration.

In this connection, plaintiff claims that

the Secretary did not consider a report

b.

from the Veteran's Administration that the

Olaintiff was not employable. The report

is part of the administrative record certi-

fied to this Court by the defendant. The

record conclusively demonstrates that the

Veteran's Administration report in question

was considered by the Administrative Law

Judge, and by implication the Secretary as

well, in reaching the determination that the

plaintiff was not disabled within the

meaning of Social Security Act. The Court

believes, rather, that the instant motion

should be treated as a motion for summary

judgment on the grounds that the decision

of the Secretary was not supported by

substantial evidence, reflected in part by

the Veteran's Administration report in

question.

From the Court's review of the record,

the Court finds substantial clinical

evidence to support the finding of the

Secretary that plaintiff's impairments

Cc.

are not so severe as to preclude plaintiff

from performing substantial gainful activity.

Accordingly, pursuant to 42 USC 405(g),

plaintiff's motion for summary judgment is

DENIED, summary judgment for the defendant

is GRANTED, and judgment shall be entered

accordingly.

IT IS SO ORDERED.

JAMES HARVEY

United States District Judge

No. 79-1492

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ARTHUR GREEN, JR.

PATRICIA HARRIS, SECRETARY OF

HEALTH, EDUCATION AND WELFARE

Before: ENGEL, MERRITT and KENNEDY,

Circuit Judges

This appeal has been referred to a panel

of the court pursuant to Rule 9(a), Rules

of the Sixth Circuit. After examination

of the briefs and record, this panel

agrees unanimously that oral argument is not

needed. Rule 34(2), Federal Rules of

Appellate Procedure.

Plaintiff argues in his appeal from a

e.

judgment awarding summary judgment for the

defendant that the Secretary did not

seriously consider plaintiff's complaint

of pain and suffering, his obesity as a

cause of his hypertension and heart disease,

the Veteran's Administration determination

that he is 100% disabled, or the vocational

expert's testimony.

\

It is determined that the District Court

did not abuse its discretion in affirming

the Secretary's decision denying social

security disability benefits as it is

Supported by substantial evidence. See

Allen v. Califano, 613 F.2d 139, 145

(6th Cir. 1980); Beavers v. Secretary of

Health, Education and Welfare, 557 F.2d 383

(6th Cir. 1978); Hephner v. Mathews,

574 F.2d 359 (6th Cir. 1978).

Given the unanimity of the medical opinions

and plaintiff's own vague descriptions of

his disability, it is apparent that the

£.

Plaintiff, although suffering from certain

ailments and problems that accompany

obesity, has, nevertheless, failed to

establish that his ailments are totally

disabling within the meaning of the Social

Security Act. It is important to observe

that an ailment which may reasonably

be considered remediable, such as obesity,

cannot serve as a basis for a finding of

Gisability. Henry v. Gardner, 381 F.2d

191, 195 (6th Cir. 1967); Stillwell v.

Cohen, 411 F.2d 574 (th Cir. 1969);

Mayhue v Gardner, 294 F.Supp. 853

(D. Kansas 1968), aff'd., 416 F.2d 1257

(10th Cir. 1969). Plaintiff's reliance

on the Veterans Administration's deter-

mination of 100% disability is insufficient

to meet his burden in light of the over-

whelming contrary evidence supporting

the Secretary. Moreover, the vocational

expert established that there existed

substantial gainful employment which the

g.-

Plaintiff could perform. The vocational

witness was not required to prove that the

plaintiff would actually be hired for the

jobs as he so argues on appeal. See

20 C.F.R. § 404.1509 (b).

Finally, while the district court may have

granted the defendant summary judgment

without providing the parties with proper

notice that it intended to construe and

rule upon plaintiff's motion to remand as

a motion for summary judgment, it is

apparent that this procedure does not

constitute reversible error. There was no

apparent prejudice resulting therefrom.

Hoopes v. Equifax, Inc., 611 F.2d 134

(6th Cir. 1979); Management Investors v.

UMW, 610 F.2d 384 (6th Cir. 1979). In

addition, plaintiff has abandoned any

contention regarding the entry of the summary

judgment because he has not raised this

issue on appeal. McGraw v. United Ass'n

h.

of Journeymen and Apprentices, 341 F.2d

705, 710 (6th Cir. 1965); United States

- Of America v. Gooch, Jr., 603 F.2d 122,

126 (10th Cir. 1979); Spaulding v. Nielson,

599 F.2d 728, 730 (Sth Cir. 1979).

It is, accordingly, ORDERED that the

District Court's judgment be and hereby is

affirmed pursuant to Rule 9(d)3, Rules of

the Sixth Circuit, because the questions on

which the cause depends are so unsubstantial

as not to need further argument.

ENTERED BY ORDER OF THE COURT

JOHN P. HEHMAN, Clerk

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

Petitioner prays that a Writ of Certiorari

be issued to review the judgment herein

of the United States Court of Appeals for

the Sixth Circuit entered in the above

entitled case on November 24, 1980.

42 U.S.C. § 423 (d) (1) (A)

(a) Definition of Disability. (1) The

term "disability" means - (A) inability

to engage in any substantial gainful

activity by reason of any medically

determinable physical or mental impair-

ment 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: