Petition for Writ of Certiorari — Pastrana de Caraballo v. Heckler

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NO.

ALEXANDER \ STEVAS.

A=-289 CLERK

- Supreme Court, U.S.

FILED

OCT 17 1985

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

IRMA PASTRANA DE CARABALLO,

Petitioner,

Ve

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

December 28, 1984.

RAFAEL CARRERAS=-VALLE, Esq,»

COUNSEL FOR PETITIONER

P.O. BOX 20399

RIO PIEDRAS, P.eRe 00928

PHONE (809) 767-5605

Ape

YP

1. Did the Court below err when it

violate the due process of law to Petitio-

ner denying her opportunity to review deci-

sion she is entitled to in the same manner

as other civil action?

2- Did the Court below err by hold-

ing that the Secretary denial of Petitio-

ner's constitution of Social Security

Disability Insurance Benefits was

supported by substantial evidence?

TABLE OF CONTENTS

PAGES

QUESTION PRESENTED ceccccccccccccece 2

OPINION BELOW eseeeeeaeeevoe ee eae eecneaenee 8 2

JURISDICTION @eeeeeseeaea ea eee e eee ee eee @ 3

CONSTITUTIONAL, STATUTORY

AND REGULATIONS INVOLVED eccccee e 04—5

STATEMENT OF THE CASE eeoeeeeeee eee & CH m3

REASONS FOR GRANTING THE

WRIT OF CERTIORARI e@eeeoeeoseeeeeeF% © 8

l. THE DECISION BELOW

CONFLICTS WITli THE DECI-

SIONS OF OTHER COURTS OF

APPEALS AS TO THE PROPER

INTERPRETATIO?S OF TITLE

42 UeSeCeAe SECTION 405(g)e- 8

2 DID TIE COURT BELOW ERR

BY HOLDING THAT THE SECRE=

jierwi DENIAL OF PETITIONER'S

ONTINUATION OF SOCIAL

SECURITY DISADILITY BEiNE-

FITS WAS SUPPORTED BY

SUBSTANTIAL EVIDENCE weeecee Ll

CONCLUSION @eeeaeseeasoeoev eee eeceaeeeeaeee ed @ pH

CERTIFICATE OF SEXVICE eececeeventeeeeesn 16

APPESIDICES @eeeeeoeeee see eee eeeoeeee802808 Xl ts

?

Py

fru

PAGES

APPENDICHS

\

Ae Opinion of the Court below

Gated July 24, 1984 ceceeese Al

B. Petition for Rehearing denied

dated August 15,1984 ecccoceoe A=2

C. Order from U.S. District

Court for the District of

P.R. dated February 3,1984.. A-3

a oe

TABWE OF AUTHORITIES

CASES

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

613 F.2d. 139 e@eeeee4eee9e340ue@eseseeeeeeeeeee

Crosby v Schweiker, (5th.Cir.,1981),

650 F.2d. 777 ¢ 778 @eeeeeoeeseeeneenseeee

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

574 F.2d. 259 @eeeeeeeeeoeeeeeeeeeeee8@

Janka v Secretary of HeEeWe

(C.A-8, 1978),589 F.2d. 365 coccecces

Lewis v Weinberger, (dth.Cir.,1975),

515 F.2d. 584, 587 @eeeeeeeeeneenseseee

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

541 Fe2de 417, 420 @eeeeseeoeeeeaeeese2eeoe ee

Mathews v Eldriidge,424 U.S.319,

332, (1976) @eeeeeeeenseeeeeeeeeeeneeese

Morgan v United States, 289 U.S.

468, (1936) @eeeeoeeeeneeeeVea eeeensneneneneede

Rivas v Weinberger, (S5th.Cir.,1973),

475 Fe2de be 256 eeeseeeesecoeceooee

Se-E.C. v Chertery Corp. 318 U.S. 386,

943 63 S.C. 454, 4+62= 387 Leide626..

Simpson v Schweiker, (llth.Cir.19%2)

691 re2de Yoo, 96S @eeeeee0eee9ee1ee#se#e#@e2ee2eeece

-iii-

PAGE

12

ll

9

9

10

10

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19

CONSTITUTION OF THE UNITED STATES

PAGES

Fifth Amendment eoccccccccccccccccccce 4,140

Fourteent Amendment eoeeeccccecececsesecee 4,10

STATLIES

28 UsSeCoAde Section 1254(1) e@eeeeesee02 ese 3

42 U.S.CeA. Section 405(b) cecccccccee 9

405(g). 0000000400 03%Sé9

UMSTE wei ove’: F

423(d)(1)(A) cocee 5

REGULATIQI’AS

Section of the Secretary's Regulations

(20 C.F.R.)

Section 404.1505 et.seq.(1983)..... 6

HLSOCELLANEQUS

Public Law 98-460, (1984);

(Social Security Disability-

Reform Act of 1984) eeoececceccccecsececes ]2—]5

NO. A=289

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

IRMA PASTRANA DE CARABALLO,

Petitioner,

VSe

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, IR!A PASTRANA DE CANRA=

BALLO, respectfully prays to this !lonorable

Court that a Writ of Certiorari issue to

review the ORDER of the United States Court

of Appeals for the First Circuit entered in

this case on July 24, 1984. The petition

for rehearing is denied on August Lo, LS.

N iu

The ORDER of the Court of Appeals,

not for publication appears in the

Appendix hereto. No opinion was rendered,

(A-1). On August 15, 1984 the petition

for rehearing was denied. (A-2). On

February 03, 1984 the District Court for

the District of Puerto Rico rendered an

Opinion and Order affirming the Secretary's

decision denying Petitioner's continuation

of her Disability Insurance Benefits.

(A=3).

JURISDICTION

The ORDER of the Court of Appeals

for the First Circuit was entered on

July 24, 1984. (A=-1). A timely petition

for rehearing was denied on August 15, 1984.

An application for an extension of time

was granted by lion. William J. Bren-

nan, Jr. this Court, to include

January Ol, 1985. (A=-15). This Court's

jurisdiction is invoked under 28 .S.C.A.

Section 1254(1); and 42 U.S.C.eA. Section

405(g).

The Constitutional, Statutory and

Regulations provisions which are relevant

to decision of this case, are Amendments

V and XIV of the United States Constitu-

tion; Amendment V, provides in part:

"No person shall... be deprived of

life, liberty or property, without due

process Of lawW.se.e"

And Amendment XIV Section provides in

Parts:

"sees Wor deny to any person within

its juridiction the equal protection of

the LaWBccceccceo™

Judicial review of cases arising

“under title II of the Social Seeurity Act,

as amended, is provided for in sections

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

405(g) in peztinent part provides:

(g) eeeee 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, 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 ..."

Congress authorizes the promulgation

of regulations to the Secretary of Health

and Human Services, who in-turn delegates

the authority to the Social Security Ad-

ministration. The S.S.A. promulgates

regulations as part IV and publishec in

the Federal Register under 20 C.F.:i.

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.

Petitioner was entitled to Social

Security Disability Insurance Benefits

since April 24, 1969 due to a mental dis-

orders and on a later date developed pain

in the neck, low back syndrome and radi-

culopathy L5, bilaterally.

On April 26, 1982 the Secretary

oink2 letter to Petitioner informing her

that her disability under the Social Secu-

rity Act, as amended, Section 404.1505,

et. seq. of the Secretary's Regulations

(20 C.F.R.«Section 404.1505, et. seq.-

(1983), were ceased in March 1982 and her

entitlement to disability benefits were

terminated two months later, as of June,

1982.

On December 9, 1982 a hearing was

held before an Administrative Law Judge.

She testified aheut her pain and that she

was hospitalized several times at the

Hato Rey, Psychiatric Hospital, liato Rey,

Puerto Rico. Her treating Physician,

Dr. de Thomas, was her treating physi-

cian at the hospital. lie submitted seve-

ral reports.

Petitioner's husband testified and

corroborated her wife's testimony. Ile has

to do all the household chores.

During the hearing no vocational

expert nor a medical advisor testified.

After the hearing, on February 9, 1952

the Administrative Law Judge sent the

Petitioner for a consultative wsychiatric

evaluation by Dr. Leovoldo L. "rez,

Psychiatrist, who found her a normal person

even thoush his diagnostic lmeression vas:

"Tebressive Neurosis" Mo cseveritrv

shown.

The Lisauility betermination Progra:i,

Stute Agency, sent specizic questions to

tre Péres his psychiatric cvaluation.

On February 10, 1982 Petitioner was

sent for a conSultative ieuroloygical Evalua-

tion by cr. Angel L. Gonzdlez-Cotto, ‘ieuro-

logist, who found her a normal person, even

though he found a psychiatric condition.

On Ferruary 22, 1983 the Administra-

tive Law Judge issued a Notice of Decision-

Denial.

On June Ol, 1983 the Appeals Council

Sustained the Administrative Law Judge's

denial decision. Thus, her disability bene-

fits were terminated as of June, 1982.

REASC:.S FOR GRATING THE WRIT

OF CERTIORAR

1. THE DECISION RELOW CONFLICTS

WITH THE DECISIONS OF OTHET:

COURTS OF APPEALS AS TO THE

PROPER INTERPRETATION OF

TITLE +2 U.SeCeoAe SECTION

405(g).

Section 405(g) of title 28 provides

that a Federal Court shall have jurisdic-

tion of a final decision of the Secretary

made after a hearing to which he was a

party, irrespective of the amount in con-

troversy, may obtain a review of such

decision by a civil action.... The Judg-

ment of the Court shall be final except

that it shall be subject to review in pte

same manner as a judgment in other civil

actions.

The United States Court of Appeals

for the First Circuit rendered a decision

in conflict with tne decisions of the

Court of Appeals in the cases of liephner

Vv Mathews, (6th.Cir.,1978), 574 Fe2a.259;

Lewis v Ueinberger, (Sth.Cir.,1575),

SIS Pe2ce. 3544, 5273 Lewis v ivinberger,

(atheCire, L776) p5el Feltic ti 7—milziig anc

a2 WedeCere Section «05(b), in certinent

part provides:

"(i:) tne Secretary is directed to

ane £indinss of fact and decisionecce."

This tionurabvle Court should consic<der

whether the due process requirements of a

full and fair review was violated in this

case as protected by the Fifth and Four-

teenth Amendment of the Constitution of

the United States. Horgan v Unites States

289, UsSe 408 (1936).

"It is well settle that Disability

Insurance Benefits are subject to pro-

cedural due »rocess protections."

Mathews v Eldridge, «24 U.S. 319, 332,

(1976).

The case of S,E,C. v Chenerv Corp.

318 UeSe 80, 943 G3 SeCte 454, 462, B7—

LeEGe 626 the Court states:

"Courts cannot exercise their duty

of review unless they are advised of the

considerations underlying the action under

review... The orderly functioning of the

process of review requires that the grounds

upon which the Administrative Agency acted

py Clearly disclosed and adequately sus-

tained."

It is the contention of the

Petitioner that she was denied a full

and fair review of her disability case by

the Courts’ below.

2- DID THE COURTS BELOW ERR BY

HOLDING THAT THE SECRETARY

DENZAL OF PETITIONER'S CON-=

TINUATION OF SOCTAL SECURITY

DISABILITY INSURANCE BENEFITS

WAS SUPPORTED BY SUBSTANTIAL

EVIDENCE.

The Court below err when upon review

considéred only the consultative evaluations

of two physicians visa, vis, her treating

physician for more than twentv (20) years.

"Once disability and a period of disa-

bilitv has been established under the pro-

visions of 42 U.S.C.A. Section 416(1) and

423(d), there is a presumption that this

condition continues to exists until the

contrary is shown."

Rivas v Weinberger (5th.Cir.,1973),475

Fedde 259¢ 220)

Simpson v Schweixer,(lith.Cir.,1933),

091 F.2d. 966, SuU9.

"If the evidence is a contlnuation

casé€ ls substantially tne same as tie

evidence nad been in tne initial «isavi-

lity benefits request case, benclZits must

pe continued." Crosov v Scnwelicer,

a aa e797 =

(Stn-Cir.,1 551) ,655 <eaue lily litie

i£Se Coravallo was entitled to disa-

Sillity beneZits due to her severe mental

condition since the year 196%; which at

oresent still sne is umier treatments with

the same psychiatrist, Lr. Antonio ce Thomas,

who diagnosed:

"Schizophrenia Catatonic Type with

Frequent Episodes and Depression."

"It is well settled that conflicts in

evidence are to be resolved by the Secretary

as trier of fact. But the Secretary must

explain why he accorded some evidence great

weight and other evidence very little."

Janka v Secrv. of Hobeti.(C.A8,1973) ,559

F.2d. 365.

"Treating Physicians reports are to be

given great probative weight especially if

supported by objective findings."

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

The Courts below only gave credit to

consultative evaluations perform by physi-

cians without any reasons.

On October 9, 1984, President Reagan,

signed into law the Social Security Disabi-

lity Benefits Reform Act of 1984, Public

Law No. 98-460. The Act, among other things

provides new standards for determining whe-

ther disability benefits should be terminated.

Section 2(a),(b),(c). In essence, the Act

provides that, while there is no presumption

of continuing disability, medical improvement

will be considered in termination cases.

In addition, the Act provides that Courts

"shall remand" to the Secretary "all actions

relating to medical improvement d/ pending on

September 19, 1984. Section 2(a)(2)(C).

The Act further provides for optional in-

terim benefits for those persons whose cases

are remanded. Section 2(e).

)/ The Act defines the term "action relating to

medical improvement" as follows:

For nurposes of this subsection, the term .

"action relating to medical improvemert" inearms an

action raising the issue of whether an in-lividuel

who has fad Ais entitlarent to benefits under Title

II, or XVIII of the Social Security ict Lascaci or

disability terriimated (or periog of wisuiility

enced) should net have had such emtitlerent termi-

nates. (or cerio: of ciisaltility enuei) without ome

Sicieration of whether there has buen peuical

improvement in the concition of such. inuivicual(cc

ancther incivluual on wiose sisavility suc.

This is an action for judicial review

of a tersination of disabilitv benefits

that was rending on September 19, 1934.

Under the legislation, the action must be

remanded to the Secretary if it is an

"Action relating to medical inprovement"

within the meaning of the Act. Since it

is clear from the papers filed in this case

that “medical improvement" is an issue,

this action must be renanded to the Secre-

tary so that the new standard may be applied

to Petitioner, SS No. 502-60-1469.

Therefore; according to above new law;

all cases pending before the Courts he

remanded to the Secretary for further pro-

ceedings.

)/ entitlement is based) since the time of a prior

determination that the individual was under a disa-

vility. Section 2(d)(6)

en

SCQNECLYUSLIQN

For the reasons aforesaid, it is

respectfully prays that the Writ of Certio-

rari be granted pursuant to the Social

Security Disability Benefits Reform Act of

1984.

Respectfully Submitted,

COUNSEL FOR PETITIONER

P. O. BOX 20399

RIO PIEDRAS, PeR. 00928

PIIONE (809) 767-5665

December 28, 1984.

x

I

ip Pe a. Dd

*

"a

UNITED.:STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NOs 84-1279.

IRMA PASTRANA DE CARABALLO

Plaintiff, Appellant,

Ve

SECRETARY OF HEALTH AD HUMAN SERVICES,

Defendant, Appellee.

Before

Coffin, Bownes anc ireyer,

Circuit Judges

ORDER OF COURT

Entered July 24, 1954

The psychiatric evaluation of Dr. verez

and the medical report of Dr. Gonzdlez Cotto

provide substantial evicence supourting the

Secretary's decision tc terminete disability

benefits. The Judgment of the district Court

affirming the deciston of the Secretary is

affirmec,.

hy the Courts

{s)(td Francis 2. %lecjlssune

Clerlre

(ces Messrs. Carreras Valle and '.%. ‘.tey.)

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NO. 84-1279

IRMA PASTRAINA DE CARABALLO,

Plaintiff, Appellant,

Ve

SECRETARY OF HEALTH AND HUMAN SERVICES,

Defendant, Appellee.

CRDER OF COURT

Entered August 15, 1984

The petition for rehearing is denied.

By the Court,

(s)(t.) Francis ’. Scigliano

Clerk.

(cc: ‘tiessrs. Carreras Valle-:ana J.S. Atty.)

A\w2

IN THE UNITED STATES DISTRICT COURT

FO! THE DISTRICT OF PUERTO RICO

IRMA PASTRANA DE CARABALLC *

Plaintiff eR EVEL: IR

an | « 83-21683(JP)

SECRETARY OF HEALTIi :

AND HUTIAN SERVICES 4

Defendant *

*

OZD5R

The above captionea case cones before

this Court for review of a final decision

of the Secretary of tiealth and fiuman Ser-

vices (the Secretary), pursu7nt to «2 '.5.

Ce. Section 405(9), upon a denial of Plair-

tiff's claim for a period of disability

and disability insurance benefits.

The scope of judicial review cytthis

Court provides that tie findings of the

Secretary a5 to any fuct, if surcertec

Substantial evidence, shall ite conclusive.

Kichar ison V Perales, «O2 Use 3.% (1U72).

The Court tias Carefully ceviewe:: tie

transcript and the memorandum of law

submitted by both parties to this action

and hereby finds that the Secretarv's

decision weeeitbnn the plaintiff is

substantially supported by the evidence

as mandated in 42 U.S.C. 405(q). There-

fore, the decision of the Secretary is

hereby AFFIRHED.

IT IS SO ORDERED.

The Clerk snall act accorcinsgly.

In San Juan, Puerto Rico, this

3 day of February, 19384.

(s.) JAINE PIERAS, Je

(t.) JAINE PIERAS, JR.

.S. DISTKICT JMOGE