Petition for Writ of Certiorari — Caratine v. Bowen

86-1809 t=

In The

Supreme Court of the Hrited. States —

SS TSE ke ee aS 6 J

October Term, 1986

AUREA APONTE CARATINI,

Petitioner,

VS.

DR. OTIS R. BOWEN, SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

PETITION FOR A 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

§221

tz * NJ (201) 257 645041800) 3 APPEAL*NY (212) 340 4640°MA (6 l7) S42 L114

»peilate

4 priaters.ine. DC (202) 783-7288 ePA (215) 925-o5000¢USA (SO) 5 APPEAL

eee ee ere eee

omer Bee

eee mnand cased

THE FOLLOWING PAGES WERE POOR

HARD COPY AT THE TIME OF FILMING.

IF AND WHEN A BETTER COPY CAN Be

OBTAINED, A NEW FICHE WILL BE

ISSUED.

nc tee Sl oven nett sa Aad antares

QUESTIONS PRESENTED

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 hold-

ing that the secretary's denial of peti-

tioner's Social Security disability bene-

fits is supported by substantial evidence?

LIST OF PARTIES

The parties to the proceeding below

were the petitioner, Aurea Aponte Caratini,

and respondent, Secretary of Health and

Human Services, Dr. Otis R. Bowen, repre-

sented by Honorable Charles Fried, Solic-

itor General, Department of Justice, Wash-

ington, D.C. 20530. Pursuant to the Soc-

ial Security Act, he is responsible for

the determination of disabiiity under

Title II disability programs, including

the promulgation of standards, regulations

and guidelines for the determination of

whether a claimant is disabled within the

meaning of the Social Security Act.

il

TABLE OF CONTENTS

QGUBSTION PRESENTED .cccccccccccccece

DC SPR ocavccvceecsocscsenea

PE MEME 2eeececvceseccenseseces

PIMEREERUEEGT Sesacreresceccceccssseoes

MEME UE BVOUVED cece Gbbecccccscesas

I.(a) Considering only that

the mental impairment is covered

by the Social Security Disability

Benefits Reform Act of 1984, Pub-

lic Law No. 98-460, dated October

9, 1984, 98 STAT 1794, (1984) and

(b) conflicts with decision of

this Court and other Circuits ....

II. The decision below of

the secretary's denial of peti-

tioner's disability benefits is

not supported by substantial evi-

dence raises important and unre-

ee OE. nu eee aecccceccac

Mas < 66 46a 65s 6806600 & do

OPER Sesececcsccecces 1(a) thru

lii

10

27(a)

TABLE OF AUTHORITIES

CASES PAGES

Allen v. Califano, (C.A.6, 1980),

Sts Pim Lae 606 60ebs Keeanee ewes 18

Aubeuf v. Schweiker, (2nd Cir. 1981),

|. Foe fe) Pam ere eer err ere 19

Calero-Toledo v. Pearson Yacht Leas-

ing Co., 416 U.S. 663, 668-669,

N.5, (1974) eeeeoeo¢eese eoeenereneeeeeeeeeee 13

Carroll v. Secretary of H.H.S. (2nd

Ciz. 1963), 70S FP.2@ GIG ccccscnces 18

Caulder v. Bowen, (11th Cir. 1986),

rh ime oe OM ys ae yp, eee rere 432

City of New York, et al v. Secretary

of &.8.6. (3.C.8.0. 1965), 378 Ff:

Supp. 1109 (2nd Cir. 1985), 742 F.

SG TED ce cescaecsssesacesscees errr 10

Consolidated Edison Co. v. N.L.R.B.,

305 U.S. 197, 229, 59 S.Ct. 206,

rot ie ee OR a: eee 15

Examining Board v. Flores de Otero,

426 U.S. 572, 599-601 (1976) cece 14

Fowler v. Califano (C.A.3, 1979), 596

Vame GOO susadenscectiececdauss came 17

Gagnon v. Secretary of H.E.W. (1st

Cir. 1981), 66 F.2d 662, 665 ...... 16

Hassler v. Weinberger, (7th Cir.1974)

fe ee a > Fe Sa Al Oe ae reese ae ee 19

lv

CASES PAGES

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

S74 F208 299 cececenseecsesececetss 13

Lewis v. Weinberger, (5th Cir. 1975),

$78 £.238 SO64, SBT wcccccesssedavee 13

Lewis v. Weinberger, (4th Cir. 1976),

S41 F.2G 417, 420 ccsccssncseosses 13

Livington v. Califano, (C.A.3, 1980),

614 F.2d 342 cccccccccccesee hence 18

Lund v. Weinberger, (8th Cir. 1975),

$20 £.26 782, 7OS sccocccvecvissses 19

Mason v. Bowen, (C.A. 11,1986), 741

MP. 26 1466, F468 cs seveocenéensseces 10

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

332, 96 S.Ct. 893, 47 L.Ed.2d 18

(1976) wccces orn ys ere rrTerrerc Tr 12

McCann v. Califano, (C.A.6, 1980),

G21 Fial. GSP 22 bb 0ws0e ees enna pow 17

Morgan v. United States, 289 U.S. 468

(1936) ccveccecsceccoeseseccsesaser 12

Padilla v. Heckler, (S.D.N.Y. 1986),

643 F.Supp. SET, 466 cecssvcscessse 21

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

401, 91 $.Ct. +420;°1427, 28 L.Ed.

BG O48 CUSFID ceodacecasacscoess heees 15

S.E.C. v. Chenery Corp., 318 U.S. 80,

94, 63 8.Ct. 454, 462, 87 LU... 626. F2

CONSTITUTION OF THE UNITED STATES

PAGES

Fifth Amendment..........- eeccceces 5, 20

Fourteenth Amendment .......-++++e<: Be td

STATUTES

8 U.S.C.A. Section 1402 ........-.--. 13

28 U.S.C.A. Section 1254(1) .......- 5

42 U.S.C.A. Sections 405(b) ...... ° 13

40S(g) ceccces 5-6, 14

423(da)(1)(A).. 6

423(d)(5)(A).. 11

Federal Rules of Civil Procedure,

Rule 79(a) wcccccccccccsccccccces 2

REGULATIONS

Section of the Secretary's Regu-

lations, [20 C.F.R. 404 (1986)]..

iD eb) eee 19

404.1520(a)(f) 15

404.1545(c),

and (d) ..... 16

vi

TABLE OF AUTHORITIES (CONTINUED)

PAGES

Appendix I, Subpart P, of 20

SeFeMe PE. GG, GE BOGe ccccoccece 3

MISCELLANEOUS

Social Security Disability Bene-

fits Reform Act of 1984, Public

Law No. 98-460, 98 STAT 1794

(USGS) ccccsccescccsccosee Bf 10, 119, 12

S. Rep. No. 466, 98th Cong., 2d

BOSS. Sh ccdccececéecc TYeTTTTTrrTe 11

Workmens' Compensation Act, State

Insurance Fund, San Juan, P.R. .. 7

Vii

NO. 86-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

AUREA APONTE CARATINI,

Petitioner,

V.

DR. OTIS R. BOWEN,

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, Aurea Aponte Caratini,

respectfully prays to this Honorable Court

that a writ of certiorari be issued to re-

view the order of the United States Court

of Appeals for the First Circuit entered

in this case on September 15, 1986. No

petition for rehearing was filed.

OPINIONS BELOW

The order of the Court of Appeals,

not for publication, Civil Action Number

85-1925, is reprinted in the Appendix

hereto, p. 1(a), 13 pages, infra.

No petition for rehearing was sought.

On September 17, 1985 the District

Court for the District of Puerto Rico

rendered an order affirming the Secretary's

decision denying petitioner her disability

insurance benefits. Civil Action No. 84-

2056 (R.L.A.), is reprinted in the Appendix

hereto, p. 14(a), 3 pages, infra. Judg-

ment entered same date is reprinted, p.

17(a), infra. Federal Rules of Civil Pro-

cedure 79(a).

1. After one year of the decision of the

District Court.

On February 24, 1984 the Administra-

tive Law Judge before whom a hearing was

held on seaciandi 6, 1984, rendered a notice

of decision-denial. She found that Mrs.

Aponte suffers from a combination of exer-

' tional and non-exertional impairments which

do not meet, or equal an impairment listed

in Appendix I, Subpart P, Regulations No. 4,

Secretary's Regulations; but which preclude

Mrs. Aponte from returning to her past

semi-skilled relevant work. It is reprint-

ed in the Appendix hereto, p. 18(a), 4

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 May 18, 1984 sus-

tained the denial decision of the Adminis-

trative Law Judge. It is reprinted in the

Appendix hereto, p. 22(a), 1 page.

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 September 17, 1985 the

Court denied the appeal (p.3, 14(a), infra).

The petitioner appealed before the

United States Court of Appeals for the

First Circuit and on September 15, 1986 the

court entered judgment affirming the de-

cision of the District Court (p. 1, 13(a),

infra).

On November 21, 1986 petitioner filed

a notice of appeal before this Honorable

Court. It is reprinted in 23(a), 3 pages.

On 2nd day of December 1986, Honorable

William J. Brennan, Jr. Associate Justice

of the Supreme Court of the United States

ordered that the time for filing this peti-

tion for writ of certiorari be extended to

and including February 12, 1987 (A418, p.

26a, infra).

This Court's jurisdiction is invoked

under 28 U.S.C.A. Section 1254(1) and 42 U.S.

C.A. Section 405(g).

CONSTITUTIONAL, STATUTORY AND

REGULATIONS PROVISIONS INVOLVED

The Constitutional, Statutory and Reg-

ulations 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 pro-

cess of law..." and Amendment XIV Section

provides in part:

-.-.-Nor deny to any person within

its jurisdiction the equal protection of

che 160Bs«scee”

Judicial review of cases arising under

Title II of the Social Security Act, as

amended, is provided for in Sections 205(g)

of the Act, 42 U.S.C.A. Section 405(g) in

pertinent part provides:

"(g) ... The judgment of the Court

shall be final except that it shall be sub-

ject to review in the same manner as a

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

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

Security Act, 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 sub-

stantial 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 ex-

pected to last for a continuous period of

not less than 12 months; or ..."

Congress authorizes the promulgation

of regulations to the Secretary of Health

and Human Services, who in turn delegates

the authority to the Social Security Admin-

istration. The S.S.A. promulgates regula-

tions as part IV and published in the Fed-

eral Register under 20 C.F.R. Sections 404

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 Dis-

trict Court.

On February 6, 1984 a hearing was held

before an Administrative Law Judge. No med-

ical advisor nor a vocational expert tes-

tified. Petitioner testified about her low

back pain, emotional condition and poor

vision. She spent her time at her mother's

house. She quit working due to a work re-

lated accident covered by the Workmens'

Compensation Act, State Insurance Fund,

San Juan, Puerto Rico. She felt that her

nerves were bad because everything bothered

her, when people look at her, bothers her,

she is unable to sleep. She fights with

her husband, daughters, has a lot of night-

mares. She is unable to speak to anyone.

She is unable to cook.

Mrs. Aurea Caratini de Aponte, peti-

tioner's mtoher, testified during the hear-

ing held on February 6, 1984. She stated

A.L.J. Is there anything that you

want to clarify as to what she

said? Is there anything that

is not correct about anything

that she said?

A. Everything she's said has been

correct. I have to give her

her meals because since she

(INAUDIBLE).

A.L.J. Yes,I know that you feel bad

but try to control yourself,

you know.

A. Well, her nerves are bad. She

is very ill...she can't cook,

she can't...because she burns

herself ali the time she hurts

herself.

I notice that the pain that she

complains a lot of...her brain,

that -- it is like as if ---

A. Yes, because she doesn't coord-

inate anymore. Talking. She for-

gets things. And she is a very

brilliant girl.

A girl who studied--at age

15 she had already graduated

from 12th grade of High

School--and the truth is

that instead of getting bet-

ter every day, she gets

worse---huh?

Yes, and she couldn't work

anymore....."

Her testimony was not evaluated or dis-

cussed by the Administrative Law Judge nor

the Appeals Council.

On July 9, 1984 petitioner filed a com-

plaint before the U.S. District Court for

the District of Puerto Rico. Docket fee was

paid. Civil Action Number 85-2056.

On November 21, 1984 respondent filed

an answer to the complaint.

On October 9, 1984 Congress approved

the Social Security Disability Benefits Re-

form Act of 1984,Public Law No. 98-460, 98

STAT 1794 (1984).

Petitioner's mental condition was not

evaluated according to the new law.

REASONS FOR GRANTING THE WRIT OF CERTIORARI

I(a) Considering only that the mental

impairment is covered by the

Social Security Disability Bene-

fits Reform Act of 1984, Public

Law No. 98-460 dated October 9,

1984, 98 STAT 1794 (1984).

"Congress took a different approach in

cases involving individuals who have mental

impairments. It provided that any person

who had sought benefits based on a mental

impairment and who was found to be not dis-

abled on or after March 1, 1981, could re-

apply to the Secretary and be reevaluated

under these standards."

City of New York, et al v. Secretary of

Health and Human Services, (D.C.E.D. 1985),

578 F.Supp. 1109 (2nd Cir. 1985), 742 F.2d

729, 106 S.Ct. 2022, 2025.

The case of Mason v. Bowen, (C.A. 11,

1986) 791 F. 2d 1460, 1462 the Court stated

at page 1462:

10

-.---In 1984 Congress established a new

and temporary standard for evaluation sub-

jective 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 deter-

mined the effect of this change in the law

-.-" (quoting W. Rep. No. 466, 98th Cong.,

2d Sess. 24).

Case of Caulder v. Bowen, (1lith Cir.

1986), 791 F. 2d 872, 879. The court stated

at page 879:

"This Court recently has restated the

standard of review for subjective allega-

tions 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. The

Secretary as well as the District Court are,

of course, bound to apply the standard

articulated in the new legislation."

Above cases are applicable to this case

at bar.

This Honorable Court should consider

whether the due process requirements for a

full and fair review and the equal protec-

tion of law were violated in this case,

11

rights protected by the Fifth Amendment of

the Constitution of the United States. Mor-

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

"Tt is well settled that Disability

Insurance Benefits are subject to procedural

due process protections”.

Mathews v. Eldridge, 424 U.S. 319, 332, 96

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

In the case of S.E.C. v. Chenery Corp.

318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.

Ed. 626, the court stated:

"Courts cannot exercise their duty of

review unless they are advised of the con-

sideration underlying the action under re-

view... The orderly functioning of the pro-

cess of review requires that the grounds

upon which the Administrative Agency acted

be clearly disclosed and adequately sus-

tained."

In this case respondent applied improper

legal standards when they failed to consider

the Social Security Disability Benefits Re-

form Act that became effective during the

pendency of the case.

12

(b) The United States Court of Appeals

for the First Circuit rendered a decision

in conflict with the decisions of other

circuits in the cases of: Caulder v. Bowen,

Supra; Lewis v. Weinberger, (4th Cir. 1976),

541 F.2d 417-420; Lewis v. Weinberger, (5th

Cir. 1975), 515 F.2d 584, 587; Hephner v.

Mathews, (6th Cir. 1978), 574 F. 2d 259;

and 42 U.S.C.A. Section 405(b), in pertin-

ent part provides:

"(b) The Secretary is directed to make

findings of fact and decision...."

Puerto Ricans are United States citi-

zens (see, 8 U.S.C.A. Section 1402).

“Puerto Rico is subject to the Due

Process Clause of either the Fifth or

Fourteenth Amendment."

Calero-Toledo v. Pearson Yacht Leasing i. «

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

13

“Puerto Rico is subject to the equal

protection guarantee of either the Fifth

or the Fourteenth Amendment."

Examining Board v. Flores de Otero, 426 U.S.

$72, 599-601 (1976).

II. Does the court below err by hold-

ing that the Secretary's denial

of petitioner's Social Security

Disability Benefits is supported

by substantial evidence.

The First Circuit in its denial decis-

ion considered the case "DE NOVO" and not

in accordance with the court's standard of

review as to whether there exists substan-

tial evidence in the record to support the

Secretary's findings [see 42 U.S.C.A. Sec-

tion 405(g)]. Under this standard, the

question is whether the record contains

"such relevant evidence as a reasonable

mind might accept as adequate to support

14

a conclusion.” Richardson v. Perales, 402

U.S. 399, 401, 91 S.Ct. 1420, 1427; 28 L.

Ed.2d 842 (1971), quoting Consolidated Edi-

son Co. v. N.L.R.B., 305 U.S. 197, 229, 59

S.Ct. 206, 216, 83 L.Ed. 126 (1938).

The court below misapplied medical-

vocational guidelines in determining that

petitioner, who is suffering from an emo-

tional condition, poor vision and low back

pain, was able to perform work which exist-

ed in the national economy where there was

no finding as to whether or how much peti-

tioner work capability was further dimin-

ished in terms of any type of job that

would be contraindicated by nonexertional

injuries in light of medical evidence in

the record... Sections 404.1520(a) thru (f) of

the Secretary's Regulations (20 C.F.R.Sec-

tions 404.1520(a) thru (f) 1986). Bowen Vv.

City of New York et al, supra, at page 2025.

15

Exertional impairments are impairments

which limit physical activities.

Nonexertional impairments, however,

includes mental disorders, dermatological

disorders and sensory disorders. According-

ly, nonexertional impairments, can include

such things as dizziness, blurred vision,

defective hearing, inability to use the

hands and inability to bend, stand, twist,

reach and climb, inability to get along with

fellow workers and supervisors, inability

to sustain attention, inability to under-

stand and retain instructions, inability to

exercise acceptable judgment, and inability

to independently perform routine repetitive

tasks. (Emphasis added). Gagnon v.Secretary

of H.E.W. (ist Cir.1981) 666 F.2d 662, 665.

(See Sections 404.1545(c) and (d) of the

Secretary's Regulations, 20 C.F.R. Sections

404.1545(c) and (d)].

On April 10, 1984 the State Insurance

Fund, San Juan, Puerto Rico, issued a de-

cision:

Diagnosis:

"Dysthymic disorder, moderately

severe type in a hysterical personality,

related." It is reprinted at p. 27(a) infra.

"The finding »f another agency regard-

ing disability is not binding upon the Sec-

retary, but that decision must be considered.’

McCann v. Califano, (C.A. 6, 1980), 621 F.

2d 829.

"The failure of the Administrative Law

Judge to consider the disability findings

of another agency is improper. The A.L.J.

is not required to accept other determin-

ation, but must consider it.”

Fowler v. Califano, (C.A.3, 1979) 596 F.2d

600.

Dr.Fausto Jimenez Blazquez is petition-

er's treating psychiatrist since the year

1979. His diagnosis:

ee,

"Anxiety disorder with depressive com-

ponent, moderate severe and hysterical per-

sonality."

These psychiatric reports were not re-

butted nor discredited by respondent.

The Administrative Law Judge in her

findings riumber 11, stated:

"(11) The claimant is unable to per-

form her past semi-skilled relevant work

as laboratory helper."

"Once the claimant has established a

prima facie case by showing that her im-

pairments prevent her return to her prior

employment, the burden shifts to the Sec-

retary, who must produce evidence to show

the existence of alternative employment

which the claimant could perform consid-

ering not only his physical capability,

but as well his age, education, work ex-

perience, and training."

Carroll v. Secretary of H.H.S. (2nd Cir.

1983), 705 F.2d 638; Livington v. Calif-

ano, (C.A.3, 1980), 614 F.2d 342; Allen v.

Califano, (C.A. 6, 1980) 613 F.2d 139.

18

The respondent failed to submit evi-

dence, such as the testimony of a vocational

expert or medical advisor. Section 404.1517

of the Secretary's regulations [20 C.F.R.

Section 404.1517 (1986)].

“Administrative Law Judges are not med-

ical experts, their functions are to gather

and weigh evidence not to make diagnoses."

Aubeuf v. Schweiker, (2nd Cir. 1981), 649

F.2d 107, 113; Hassler v. Weinberger, (7th

Cir. 1974) 502 F.2d 172, 178; Lund v. Wein-

burger, (8th Cir. 1975), 520 F.2d 782, 785.

During the hearing no medical advisor

testified.

Section 2(a), Section 223(f) of the So-

cial Security Act is amended to read as

follows:

"(d)(1) The amendments made by this

Section shall apply only as provided in this

subsection."

19

(2) The amendments made by this Sec-

tion shall apply to

(C) determinations with respect to

which a request for judicial review was

pending on September 14, 1984 and which in-

volve an individual litigant....."

Petitioner meets above determination.

COL . Os i OF

Petitioner respectfully prays to this

Honorable 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.

The Act requires remand of her mental im-

20

pairment claim for redetermination in ac-

cordance with the revised procedures for

evaluating such claims. Padilla v. Heckler,

(S.D.N.Y., 1986), 643 F. Supp. 481, 486.

RESPECTFULLY SUBMITTED,

s/ Rafael Carreras-Valle

RAFAEL CARRERAS-VALLE, ESQ.

COUNSEL FOR PETITIONER

P.O. BOX 20399

RIO PIEDRAS, P.R. 00928

PHONE (809) 767-5665

February 6, 1987

21

NO. 86-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

AUREA APONTE CARATINI,

| Petitioner,

Ve

DR. OTIS R. BOWEN,

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 Carrerds-Valle, Esquire, 2

member of the Bar of this Court, hereby

certify that on this 6th day of February,

| 1987, three copies of the petition for writ

of certiorari in the above-entitled case

was mailed, first class postage prepaid to:

Hon. Charles Fried

U.S. Solicitor General

Department of Justice

Washinaton, D.C. 20530

s/ Rafael Carreras-Valle

RAFAEL CARRERAS-VALLE, ESQ.

COUNSEL FOR PETITIONER

22

ae Fr Ee Bt =

Ae

De

Ee

Ge

He

Order of the U.S. Court of

Appeals for the First Circuit

dated September 254 1966 ccocceseceorse

Order of the District Court

dateda September 17, 1985 ceeccccccces

Judgment enterea on Sept.17,1955 ee.

Notice of Decision=-Denial dated

February 24, 1984 from the ALD .eece.

Appeals Council's deciston dated

May 18, 1984 sustaining the

AL’ *s denial decision cecccccccccces

Notice of Appeal to tne Supreme

Court of the United States, dated

November 21, 1966 cseevcecesoooeseoscee

Order Extending Time to file

Petition for Writ of Certiorari

dated December Ze 1986 eeeeerereeceece

Decision from the State Insurance

Fund, San Juan, Puerto Rico,

dated April 10, 1984 @e@ee¢geee*ee*es#+re*eeo@eeee

PAGES

23-25

27

(NOT FOR PUBLICATION)

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NOs 85-1925

AUREA APONTE CARATINI,

Plaintiff, Appellant,

Ve

SECRETARY OF HEALTH AND HUMAN SERVICES

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

(Hone Raymond Le Acosta, US. District Judge)

Befove

Campbell, ; Judge,

Breyer and Torruella, Circuit Judges.

Rafael Carreras-Valle on brief for

Appellant. ae Office of the

General Counsel, Soctal Security Division,

Department of Health and Human Services,

AS te United States Attorney,

Wanda Rubianes-Collazo a United

States Attorney, Randolph W - Gaines, Deputy

Ch4ef Counsel for Social Security Litiga-

tton, and A, George Lowe, Chief, Disability

Littgatfon Branch, on brief for appellee.

September 15, 1986

l(a), 13 pages

Per Curiame Claimant Aurea Aponte

Caratini filed an application for Social

Security disability benefits alleging neck

and back problems, pain, visual impairment,

and a nervous condition. After a hearing,

the ALJJ found claimant not disabled. The

ALJ conceded that claimant had a severe

impairment or impairments that precluded

her return to her former work, but found

that claimant retained the residual funct-

ional capacity to perform sedentary work.

Accordingly, the ALJ applied Rule 201.21

of the Medical-Vocational Guidelines,

20 CeFeRe Part 404, Subpart P. Appensix 2

("the grid") to reach a finding of not

disabled. The ALJ evaluated claimant's

several nonexertional impairments (pain,

vision, anxiety) and found that they did

not significantly affect her ability to

perform the full range of jobs requirina

l(a),page 2

sedentary work. After the Appeals Council

denied claimant's request for review of

the ALJ's decision, claimant appealed to

the district court, which affirmea the

Secretary. On appeal to this court,

Claimant contends that the Secretary mis-

applied the grid and that the Secretary's

decision is not supported by substantial

evidence. We affirm.

In Gagnon v Secretary of liealth and

Human Services, 66 Fe2d. 662, (lste Cir.,

1981), and again in Perez Lugo v Secretary

of Health and liuman Services, 794 Fe2de 14

(lst.Cir.,1986), this court approved the

procedure set out by section 200.00(e)(2)

of Appendix 2 to Subpart P, 20 C.F.R.

Part 404, to be followed in applying the

grid when both exertional and non-exertio-

mal impairments are alleged. The recula-

tions state,

l(a), page 3

“However, where an individual has

an impairment or combination of im-

pairments resulting in both strencath

limitations and nonexertional limi-

tations, the rules in this subpart

are considered in determining first

whether a finding of disabled may

be possible based on the strength

limitations alone and, if not,

the rule(s) reflecting the indivi-

dual's maximum residual strength

Capabilities, age, education, and

work experience provide a frame-

work for consideration of now much

the individual's work capability

is further diminished in terms of

any types of jobs that would be

ontraindicated bv the nonexertional

limitations."

The Secretary properly followed this

analysis in that he applied the grid only

after determining that Claimant's non-=

exertional impairments did not significantly

affect claimant's ability to perform the

full range of jobs requiring sedentary work.

see Perez Lugo, supra, 794 Fe2d. at 17;

Borrero Lebron v Secretary of Health anc

Human Services, 747 F.2d. 818 (lst.Cir.19S4).

We find, furthermore, that this deter-

mination was amply supported by substantial

l(a), page 4

evidence of record. The ALJ found that

Claimant's complaints of neck, back, and

arm pain “are credible to tne point where

the pain is a cause of discomfort for hnere.e.

(but the pain cannct be considered as

severe or disabling in nature." ‘ve agree

that the record contains substantial

evidence to support a finding that clairzant's

back problems, while a source of some pain,

do not significantly affect her ability tc

perform the full range of jobs requiring

sedentary work. Medical rerorts found mild

cervical fibromyositis and a congenital

fusion of vertebral bodies, but found "no

motor, senrory or reflexes abnormalities",

no motor weakness or atrophy , and no limi-

tation of movement. Physicians noted

"tenderness to palpation to both trapezius",

but made no findings of severe or disablins

pain. Claimant stated in April 2, 1982 and

February 8, 1983 disability reports that she

l(a), page 5

Shares housework with her daughter, takes

care of her personal needs ard of house

plants, visits relatives, and uses pubdlic

transportation. As the AL’ noted, one

medical report stated that claimant was not

receiving treatment for her alleged pain.

Thus, both objective medical findings and

evidence as to claimant's daily activities

and medical treatment support the ALJ's

finding. “Generally, when an individual

has suffered severe pain for a lons time,

there are observable signs such as drawn

features, and atrophy due to disuse for the

purpose of avoiding discomfort, as well as

a medical history replete with efforts to

alleviate pain." Thompson v Califano,556

Fe2d. 616,617 (lste Cire. 1977). ,

Nor can we quarrel with the Secretary's

treatment of claimant's alleged vision pro-

blem. While claimant apparently has been

legally blind in her right eve since birth,

l(a), page 6

medical reports state that her vision is

2% 20 in her left eye, even without

correction, and that her left eve is

“normal". There can be no doubt that this

meical evidence adequately supports the

Secretary's finding that claimant's vision

problem does not prevent her from performing

the full range of sedentary work.

Claimant's mental impairment, too, does

not appear substantial according to the

evidence of record. Ina June l4, 1983

report, her treating esychiatrist found

her coherent, in contact with reality, ori-

ented as to person, place and time, with

mormal course and content of thought, and

with immediate memory not affected. He

found her intellectual functions "(n)ot

affected, but she has less power of concen-

tration." He concluded that she suffered

an "“(a)nxiety disorder with depressive

1.Certainly claimant did not, as agg now contends,

establish blindness umder 20 C.F.R. S 404.1581, which

def ines piinceees 2 as “central visual acuity of 2% 200

or less in the better eye.’

l(a), page 7

component." Again, claimant herself stated

in disability reports that she shares

housework with her daughter, takes care

of her personal needs and of house plants,

maintains social contacts, and uses public

transportation. Accordingly, the Secretary

had substantial evidence to support the

conclusion that claimant's mental condition

did not significantly affect her ability

to perform the full range of sedentary work.

See Borrero Lebron v Secretary of Health anc

2

Human Services, 747 Fe2d. 818 (lst-eCir.1984)-

Given the above-quoted psychiatric report,

the Secretary was not bound to accept the

later conclusion of the same psychiatrist---

set forth in a letter written "at the request

of the patient" shortly before the AL’

rendered his decision -- that claimant "is

not able at this time to do substantial or

lucvative work."

2 For the same reason, the Secretary was justified

in finding that claimant's mental impairment was not

a listed impairment under S 12.04 of 20 C.F.R. Part 404,

Subpart P, Appendix l.

l(a), page 8

For the reasons stated above, we further

conclude that the record contains substantial

evidence that all of claimant's non-

exertional impairments, considered in

combination, do not significantly affect

her ability to perform the full range of

sedentary work.

The Secretary, having found claimant's

non-exertional impairments not significant,

correctly applied the grid to assess her

exertional impairment (neck and back pro-

blems) and reach a finding of not disabled.

We find no lack of substantial evidence for

the Secretary's finding that claimant can

perform sedentary work despite her exertional

impairment. The Secretary's Regulations

define sedentary work as follows:

“Sedentary work involves lifting no

more than 10 pounds at a time and occasional-

ly lifting or carrying articles like docket

files, ledgers, and small tools. Although

a sedentary job is defined as one which in-

volves sitting, a certain amount of walking

l(a), page 9

and standing is often necessary in

carrying out job duties. Jobs are seden-

tary if walking and standing are required

occasionally and other sedentary criteria

are met."

20 CeFeRe S 404.1567(a). A residual func-

tional capacity assessment submitted by an

examining physician stated that claimant

could stand, walk, and sit eight hours, but

omitted any finding as to claimant's

ability to lrft and carrye Even without

‘these findings, however, there is substan-

tial evidence in the record that claimant

retains the strength to meet the minimal

lifting and carrying requirements of

S 404.-1567(a), Since medical reports stated

that claimant exhibited no motor weakness

Or atrophy, no muscle spasm in the back,

normal range of motion in the neck anc

back, and "no motor, sensory or reflexes

abnormalities. "3

3° This medical evidence supports the Secretary's

——— that Claimant's back and neck problems do

not constitute a listed impairment under S l. OS of

20 C.F.Re Part 404, Subpart , Appendix i.

l(a), page 10

Claimant further asserts that the

Secretary erred in applying S 201.21 of the

grid to find her not disabled, since

S 201.21 governs the 45-49 age group ane

Claimant was 43 years old at the beginning

of the claimed period of dcisability.

However, any error was harmless since

application of S 201.28 of the grid,

governing the 18-44 age group, also results

in a finding of not disabled.

Finally, claimant contends that the

Secretary erred in failing to consider two

decisions of the State Insurance Fund of

the Puerto Rico Department of Labor--one

issued before the AL’'s decision herein,

the other issued shortly after it--that

she wac entitled to workmen's compensation

for her mental condition. In surport she

cites Fowler v Califano, 596 F.2d.600,

(3d. Cir.1979), which holds that an AL)

l(a), page ll

must give consideration to state findings

of disability. Although it is true that

the ALJ's decision made no exppress mention

of any State Insurance Fund award, the ALJ

gave full consideration to the saine claimed

impairment -= anxiety and depression --

relied on by the State Insurance Fund.

Furthermore, neither State Insurance Fund

deciston contained any articulation of

reasons for an award of benefits that, if

given fuller consideration, could have

influenced the Secretarv's determination.

Instead, both state decisions announced an

award in conclusory fashion, with minimal

findings. It is well-settled, also, that

determinations made by other agencies are

not controlling on the Secretary. 20 C.F.R.

S 404.1504; Small v Califano, 565 F.2¢a.797,

799 (1lst.Cir.1977). Under all the circums-

tances, therefore, and given the manifest

l(a), page 12

adequacy of the record support for the

Secretary's conclusions, we conclude that

we need not remand to the Secretary for

fuller consideration of the State Insurance

Fund decisions.

We have considered claimant's other

contentions and find them meritless.

The judgment of the district court

is affirmed.

l(a), page 13

IN THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

AUREA APONTE,

Plaintiff

Ve

SECRETARY OF HEALTH

AND HUMAN SERVICES,

Defencant.

CIVIL NO. 84—2056( PLA)

After a thorough consideration of all

the evidence in this case, as well as tne

secretary's findings, and the issues ore-

sented by this appeal, this Court concluces

that the Secretary's determination is

Supported by substantial evidence in this

record.

The Secretary found that plaintiff coulda

not return to her past work, but that she

could perform light to sedentary work where

she could alternate positions; primarily,

deal with objects and peform simple, routine,

repetitive and unskilled tasks. Apelying

14(a), 3 pages

the table for sedentary work of the

Medical-Vocational Guidelines, the Secre-

tary concluded that plaintiff is not

disabled. While the Secretary has further

diminished plaintiff's capacity to vcerform

the full range of light to sedentary work

in which case is better to stay away from

the Grid, the Secretary has played safe by

applying the table for sedentary work. It

has been recognized that the "Grid does not

assume that a ‘not disabled’ claimant is

equally Suited to perform any and all jobs

thought to exist in tne national economy

for the set of claimants with similar ace,

education, experience and residual capacity

characteristics. It assumes merely tnat

enough jobs are available for such claimants

that, tn all likelihood, there will be at

least some jobs that each such claimant

can perform." Sherwin v Secretary of Health

l4(a), page 2

and Human Services, 685 F.2de 1 (lst.Cir.

1982).

Wherefore, in light of the applicable

law and jurisprudence, the Secretary's

decision is hereby affirmed. Judgment shall

be entered accordingly.

IT IS SO ORDERED.

San Juan, Puerto Rico, this 17th. day

of September 1985.

(s) RAYMOND L. ACOSTA

(Sete) RAYMOND Le ACOSTA

United States District Judce

14(a), page 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

AUREA APONTE,

Plaintiff,

Ve

SECRETARY OF HEALTH

AND HUMAN SERVICES

Defendant.

CIVIL NO. 84=—2050( RLA)

LURSGNENT

The Court having found that the decision

of the Secretary of Health and Human services

is supported by substantial evidence in the

record, and the Court having affirmed its

decision,

It is ORDERED and ADTUDGED tha the atove-

captioned action be and the same is hereby

dismissed.

IT IS SO ORDERED.

San Juan, Puerto Rico, this 17th day of

September 1985.

(s) RAYMOND L. ACOSTA

(Sete) RAYMOND Le ACOSTA

United States District Judge

17(a), page l

a

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Social Security Adminis-

tration, Office of }

Hearings and Appeals

Name and Address of

Claimant:

MrSe Aurea Aponte

Calle Duchesne 618

Villa Prades

Rio Piedras, P.R. 00924

NOTICE OF DECISION=}{DENIAL

PLEASE READ CAREFULLY

This notice and enclosed

copy of hearing decision

mailed:

February 24, 1984

Form HA=L5023=U6 (10<82)

18(a), 4 pages

DEPARTMENT OF

HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

OFFICE OF HEARINGS AND APPEALS

DECISION

IN _ THE CASE OF: CLAI™ FOR:

Period of Disability

cepapesaapente and Disability Insu-

rance Benefits

580-68-7389 |

(Social Security Number)

This case is before the Administrative Law

Judge upon a timely request for hearing.

The Administrative Law Judge has carefully

considered all the documents identified on

the record as exhibits, the testimony at the

hearing and arguments presented. After

proper notice a hearing was held at Hato Rav,

San Juan, Puerto Rico on February 6, 1984.

The claimant was present and testified. The

Claimant was represented by attorney Rafael

Carreras Valle. Also present was Aurea

Caratini de Aponte, claimant's mother who

testified as witness.

18(a), page 2

~The claimant filed an application on

February 8, 1983 alleging inability to work

on December 15, 1981 brecause of visicn,

back condition, nerves.

The application was originally denied on

April 4, 1983 and after reconsideration

on July 26, 1983.

On September 15, 1983 the claimant timely

filed a request for hearing.

The claimant has not worked since at least

alleged onset date.

The claimant met the special disability

insured status requirements ‘of the Act on

the alleged onset date and continues to meet

them through at least up to December 31,184.

18(a), page 3

Upon examining the entire medical evidence

now of record, the Administrative Law Judge

finds that claimant suffers from a combin-

ation of exertional and non-exertional

impairments which do not meet or equel an

impairment listed in Appendix 1, Subpart »,

Regulations No. 4, but which preclude

Claimant from returning to her past semi-

skilled relevant worke

DECISION

It is the decision of the Administrative

Law Judge that, based on the application

filed on February 8,1983, the claimant is

not entitled to a period of disability ocr

disability insurance benefits under sec-

tions 216(i) and 223, respectively, of he

Social Security Act.

(s) LUZ Me TORO SOLIS

(sete) LUZ Me TORO SOLIS

inistrative Law Judge

February 24, 108+

Date

18(a), page 4

Refer to: Office of Hearings

SGC and Appeals

550-68-7389 P.O. Box 3200

Arlington, Va. 22203

May 18,1984

ACTION OF APPEALS COUNCIL ON REQUEST FOR

REVIEW

Mrse Aurea Aponte

Calle Duchesne 618

Villa Prades

RIO PIEDRAS, PUERTO RICO 00924

Dear Mrs. Aponte:

The Appeals Council has concluced that there

is no basis for granting the request for

review. Accordingly, the hearing decision

stands as the final decision of the Secretary

in your case.

If a civil action is commenced, vour complaint

should name the Secretary of Heaalth and

Human Services as the defendant and shoulda

include the Social Security Number(s) shown

at the top of this notice.

Sincerely vours,

(sete) JOHN We CHAMBERS

Member, Appeals Counc:l

cc:

Rafael Carreras,Esq.e

HO, HATO REY,PR (ALT Toro Solis)

22(a), page 1

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 85-1925

AUREA APONTE CARATINI,

Plaintiff,Appellant

VSe

SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendant,Appvellee

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given tnat, AUREA

APONTE CARAT NI, the Plaintiff abeve nameéd,.

hereby appeals to the Supreme Court of tno

United States from the final order aismiss-

ing the Petition for Appeal entered in

action on September 15, 1986.

This appeal is taken pursuant to

28 UeSeCeAe Section 2101(c).

23(a), 3 pages

At Rfo Piedras, Puerto Rico,

November 2l, 1986.

(sete) RAFAEL CARRERAS}=VALLE

Counsel fro App2lliant

P. O. Bax 20399

Pfo Piedras, PeR. 00928

PHONE (809) 767=5605

CERTIFICATE OF SERVICE BY “AIL

I HEREBY CERTIFY that on this same date

a copy of this Notice cf Appeal to the

Supreme Court was mailec to:

Debra Le ticllis, Esq.

Office of the General

. Counsel, SS Divisicn

050 Altmever blas.

6401 Security Youlevar:

Baltimore, Ma. 21235

RAFAEL CARRERAS=VALLS, sc:

Counsel for Appellant

23(a), page 2

Office of the Clerk

UNITED STATES COURT OF APPEALS

For the First Circuit

Francis Pe Scigliano

Clerk

December ll, 1986

Rafael Carreras-Valle,Esq.

Pe O. Box 20399 3

Rito Piedras, P.Re 00928

NOs 85-1925 Aurea Aponte Caratini v.

SeH.H.S.

Dear Sir:

Your notice of appeal to the Supreme

Court has been received and filed.

Pursuant to a directive from the Office

of the Clerk of the Supreme Court, rather

than sending a copy to the Suprame Court

Clerk's Office, I return to you a copy of

your notice of appeal showing the aate filed

in this office. I am adised that you should

include this copy of your notice of anpeal in

the appendix to your jurisdictional statement

when you file that document with tne Clerk of

that Court. sil

Sincerely vours,

(s) FRANCIS P. SCICLIANO

2 Clerk

23(a), Page 3

SUPREME COURT OF THE UNITED STATES

Noe A=-41 8

AUREA APONTE CARATINI,

Applicant

Ve

SECRETARY OF HEALTH AND HUMAN SERVICES

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

UPON CONSIDERATION of th2 application

of counsel for petitioner,

IT IS ORDERED that the tire for fil-

ling a petition for writ of certiorari in

the above-entitled cause be, and the sane

is hereby, extended to and including

February 12, 1987-.

4 si William 7, 2rennan, éor.

Associat?2 Justice of che

Supreme Court cf the

United States

Dated this 2nd day of December 1985

26(a), pace 1

D=-18

Claimant: Aurea Aponte Caratini

ssan: 580-608-7389

translation .

Commonwealth of Puerto Ricc

STATE INSURANCE FUND

PUERTO RICO

Case Number: 72 95 Eo 600-3

Name and Address:

Aurea Aponte Caratini

Calle Casimira Duchesne 618

Villa Prades, Rio Piedras, PR 00928

Name and Address:

Medical Center of Puerto Rico

Barrio Monacillos

Rfio Piedras, Puerto Rico

Accident date: Daily wage: Days wer week:

12-20-71 12.00 b

Injury suffered:

Dysthymic disorder, moderatelv-sev

type in a hysterical personality,

it &

iD ts

it)

FINAL DISCHARGE Date: REPORTING

12620083 PHYSICIAN(s):

Dee FeRs Guillen

and Ge Malaret

In accordance with the record, the

injured party is to be paid a compensation

computed on the above-mentioned weekly wace

for a period of 153 weeks, which amounts to

$6,855.00,

27(a), page l