Petition for Writ of Certiorari — Suarez v. Heckler
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Office-Supreme Court, U.S.
FILED
S5- 48 JUN 8 1985
No. 84- | ALEXANDER L. STEVAS,
oe
IN THE
Supreme Court of the Qnited States
OCTOBER TERM, 1984
CARMEN M. SUAREZ,
Petitioner,
V.
MARGARET M. HECKLER,
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
RAFAEL CARRERAS-VALLE, Esq.
COUNSEL FOR PETITIONER
P.O. Box 20399
Rio Piedras, P.R. 00928
Phone (809) 767-5665
May 31, 1985
OM ARE RRR 5 TRACI RT TA RR AE SE SEIN PEE
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203
QUESTION PRESENTED
1. Whether the U.S. District Court for the District of
Puerto Rico properly held that Petitioner, who was disabled
by the same impairment as of date of her application as that
which previously caused her to be under a disability prior to
her attainment of age 22, was entitled to Child Insurance
Benefits?
2. Whether the Secretary of Health and Human Serv-
ices, Respondent, erred in concluding that a person seeking
Adult Child Insurance Benefits must suffer from a disability
which began prior to her 22nd birthday and continued unin-
terrupted until she applied for benefits?
3. Whether the Court below should have rendered a
decision clarifying Adult Child Insurance Benefits?
4. Whether an employee of the Social Security Admin-
istration should be allowed to represent the Secretary of
Health and Human Services signing appeals without due
appointment as counselor?
il
TABLE OF CONTENTS
Page
ENTOOM PURGENTED oo. ince ete ee ee eens i
CPE I in hen tkeae eee 2
POE og Shin dvi nk xdew hae ee 2
CONSTITUTIONAL, STATUTORY AND REGULATIONS IN-
WE oi kv 6K a eh ooo nies bee eee eee 2
STATEMENT OF THE GAGS . «kien ackaene cand eceenees 4
REASONS FOR GRANTING THE WRIT OF CERTIORARI 7
1. Whether the U.S. District Court * r the District of
Puerto Rico properly held that Petitioner, who was
disabled by the same impairment as of date of her
application as that which previously caused her to be
under a disability prior to her attainment of age 22,
was entitled to Child Insurance Benefits? .......
2. Whether the Secretary of Health and Human Serv-
ices, Respondent, erred in concluding that a person
seeking Adult Child Insurance Benefits must suffer
from a disability which began prior to her 22nd
birthday and continued uninterrupted until she ap-
nee Tr OUTED. 6 ik.g sc caput doce ce reecabeses 8
3. Whether the Court below should have rendered a
decision clarifying Adult Child Insurance Benefits? 8
4. Whether an employee of the Social Security Admin-
istration should be allowed to represent the Secre-
tary of Health and Human Services signing appeals
“I
without due appointment as Counselor? ......... 4
CORCIIIIN sh decreed eee eee 13
CERTIFICATE OF GRAVE. 66 ccikcaceseickei es 14
APPENDICES
A. Letter dated April 16, 1985 ................. A-1
B. Notice of Appeal, dated Apri! 10,
i Perret Tre errr rer ry oe A-2, page 1
C. Judgment, U.S. First Circuit dated February 25,
ee rr a rata A-3
D. Order, dated February 25,
SOD 4c bisa eeseeeees base eee eee A-4, page 1
ill
E. Petition for Rehearing denied dated April 3,
SECC vee ehhh sch dh wea vale A-5
F. Motion to Stay of Mandate dated April 8, 1985 A-6
G. Express Mai! Form dated April 8,
PC vc cin aa kaibacensshecccerecd A-6(A)
H. Denied of Motion to Stay of Mandate dated April
EES OES ee i'n 150 Os wis ka 4k 0c aka A-7
I. Judgment, U.S. District Court for the District of
P.R. dated December 19, 1983 ............... A-8
J. Opinion.and Order, dated December 15, 1983... A-9
K. Counsels Authorized by the Office of the General
Counsel Dept. of H.H.S. ................... A-19
|
iv
TABLE OF AUTHORITIES
CASES: Page
Axe v. Harris (E.D.Pa.,1980), 503 F. Supp. 1049 ..... 7
Baerga v. Richardson (C.A.5,1974), 500 F.2d. 309, Cert
Gemied 460 U.S. GEL CITE) 2 nnn cc cnsssnncceseces 9
Batterton v. Francis, 423 U.S. 416, 425-26, 97 S.Ct. 2399,
2405-06, 53 L. Ed. 2d. 448 (1977) ............... 10
Baerga v. United States, 255 U.S. 22, 35-36, 41 S.Ct. 230,
e oe ek ft) eer Tre re reer 9
Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed. 228
gf SPE RO er eee me ee WN uy ny yt ener gere 6
Caraballo v. Secretary of H.H.S. No. 80-1696 (1st.
EE CUES Eau Nas euncadenul cs Waal eties eeu’ 10
In Re Murchison, 349 U.S. 133, 136-37, 75 S. Ct. 623,
GiS-Gas, OO L. Ed. SEE (ISG) . ww. ce esc ceue: 10
Johnson v. Secretary of H.H.S. (6th. Cir. ,1982),679 F.2d.
WRG eek as ba eee ce aa eee eran caaes 8
Mathews v. De Castro, 429 «.S. 181, 185-186; 97 S.Ct.
431, 434-435; 60 L.Ed. Yd. 389 ...............6.. 6
Reading v. Mathews (7th. Cir. ,1976), 542 F.2d. 993 .... 8
Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420; 28
eR SR: | eee Ter Terre ree 11
Salinas v. Schweiker (5th. Cir. ,1981) 662 F.2d. 345 .... 11
Schweiker v. Gray Panthers, 453 U.S. 34, 43; 101 S. Ct.
2635, 2640, 69 L.Ed. 2d. 460 (1982) ............. 10
Thorne v. Weinberger, (C.A.4,1976) 530 F.2d. 580..... 9
CONSTITUTION OF THE UNITED STATES
BE re a ee re 2
a Nk oS e a wl Ue cade ses wen 2
STATUTES
ee Ur CUD RIED oon 6s cas cccccccseneks 2
Bik Soe et eer reer re errr 7
NIE, cep nouns kdh skeeevaneau ens 6
heey nas os x5 beaks nea k eR eS 6
SINE oi y.4 55 pon dks ch den dead dewnnesaees 6
fatness
Table of Authorities Continued
Page
ME ole oc ee ecs cos Leathe Oceee est cece 6
PT GHUL UKE CAN Ch da CARER EER ORGS tweaks 7
I ee ne es Be ee eee 3
I a or ia A eee 3, 8
Ce aie ile ed ek eee oe cs Set 3
Appendix I, Part IV, Subpart P, (20 C.F.R. Part 404)
fT ere IR area seiner Perea Pa arpa Ss” AP IP 9
REGULATIONS
Section 404.350(e) (20 C.F.R. Section 404.350(e)(1983) . 3, 4
Se NPE kee ec ku bak acdsee euenuk 9
RULES OF APPELLATE PROCEDURE
a re ae a ee 12
NER ire peggy ae lc FR eNO one oh 11
RULES OF THE FIRST CIRCUIT
os 3 ao co cae ee ae ae Ser ee 12
RULES OF THE U.S. SUPREME COURT
I Giese ore hae he ee oe eee 2
MISCELLANEOUS
ee EE Bc g eer ot i cue ke oe 6
Public Law 92-608, 86 Stat. 1329 (1972) .............. 6
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1984
No. 84-
CARMEN M. SUAREZ,
Petitioner,
V.
MARGARET M. HECKLER
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, CARMEN M. SUAREZ, respectfully prays
to this Honorable Court that a Writ of Certiorari be granted to
review the ORDER of the United States Court of Appeals for
the First Circuit entered in this case on February 25, 1985. The
Petition for Rehearing is denied on April 3, 1985. She was
disabled before age 22 in the account of her father, wage earner,
José A. Suarez, Social Security Number 581-03-0194A, who
was receiving Social Security Benefits for Old-Age Retirement
Insurance Benefits until December 22, 1981, when he died.
Respondent, Secretary of Health and Human Services, Mar-
garet M. Heckler, determined that Petitioner is not disabled
within the meaning of the Act and that her disability did not
exist continuously from before she attained age twenty-two
a
through the date of her application. The U.S. District Court for
the District of Puerto Rico reversed the Secretary’s final
decision.
OPINION BELOW
The ORDER of the Court of Appeals, net yet published
appears in the Appendix hereto. (A-4, 12 pages). On April 03,
1985 the Petition for Rehearing was dewid. (A-5). On De-
cember 15, 1983 the U.S. District Court for the District of
Puerto Rico rendered an Opinion and Order reversing the
Secretary’s decision. (A-9, 7 pages).
JURISDICTION
The ORDER of the Court of Appeals for the First Circuit
was entered on February 25, 1985. (A-4, 13 pages). A timely
Petition for Rehearing was denied on April 03, 1985. This
court's jurisdiction is invoked under 28 U.S.C.A. Section
1254(1); 42 U.S.C.A. Section 405(g), (1983) and Local Rule 23.
CONSTITUTIONAL, STATUTORY AND REGULATIONS
PROVISIONS INVOLVED
The Constitutional, Statutory and Regulations provision
which are relevant to the decision of this case; are Amendments
V. and XIV of the United States Constitution; Amendment V,
provide in part:
“No person shall. . . be deprived of life, liberty or property,
without due process of law. . . .
And Amendment XIV, provide in part:
“
.... Nor deny to any person within its jurisdiction the
equal protection of the laws. . .’
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)(1983) in pertinent part
provide:
ee.
“(g) . . . . The judgment of the Courts shall be final except
that it shall be subject to review in the same manner as a
judgment in other civil actions. . . .”
Section 202(d)(1) of the Social Security Act, as amended, 42
U.S.C.A. 402(d)(1),(1983) in pertinent part provide:
“(d) Child Insurance Benefits
(1) Every Child (as defined in Section 416(e) of this title) of an
individual entitled to old-age or disability insurance benefits,
or of an individual who dies a fully currently insured individual,
if such child -
(A) has filed application for Child’s Insurance Benefits
(B) at the time such application was filed was
unmarried. .. .
(C) was dependent upon such individual. . .
ae
(G). . . . ifsuch child was under a disability (as so defined)
at the time she attained the age of 18,. . . . or prior to the time
she attained (or would attain) the age of 22, or, subject to
Section 423(e) of this title.
Section 216(e) of the Social Security Act, 42 U.S.C.A. Sec-
tion 416(e)(1983) in pertinent part provide:
“(e) Child
“The term ‘Child’ means (1) the child or adopted child of an
individual, (2) a stepchild who has been such stepchild for not
less than one year immediately preceeding the day on which
application for child’s insurance benefits is filed or. . . .
Section 223(d)(1)(A) of the Social Security Act, 42 U.S.C.A.
Section 423(d)(1)(A)(1983), provide in part:
“(d)(i) The term ‘disability’ means -
‘(A) Inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental im-
pairment 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, dele-
gates the authority to the Department of the Social Security
Administration. The Social Security Administration promul-
gates regulations as part IV and publishes in the Federal
Register under 20 C.F.R. Sections 404, et seq.; which are not
inconsistent with the Act.
Section 404.350 of the Secretary’s Regulations (20 C.F.R.
Section 404.350,(1983), which in pertinent part provide:
Who is entitled to Child’s Benefits.
“You are entitled to child’s benefits on the earnings record of
an ins” “ed person who is entitled to old-age or disability bene-
fits or who has died if -
(a) you are the insured person’s child... . .;
(b) you are dependent on the insured... .;
(c) you apply;
(d) you are unmarried; said
(e) you are under age 18, you are 18 years old or older and
have a disability that began before you became 22 years old,
ee
STATEMENT OF THE CASE
This Petitioner seeks to review the ORDER of the Court of
Appeals for the First Circuit reve*sing the Decision from the
U.S. District Court for the District of Puerto Rico.
On July 30, 1926 Petitioner was born.
On April 28, 1981 Petitioner, Carmen M. Suarez, filed an
application for Social Security Disability Insurance Benefits as
an Adult Disabled Child based on the account of her father, José
A. Suarez, who was receiving Social Security Benefits, for Old
' Age Insurance Benefits, until December 22, 1981, when he
died.
At the Administrative level the claim was denied.
On December 15, 1983 the U.S. District Court for the Dis-
trict of Puerto Rico entered OPINION AND ORDER that it is
clear that the same disability was present in the claimant prior
to attaining age 22, as on April 1981, when she applied for the
benefits.
(A-9, 7 pages).
Miss Suarez suffered her first serious depressive episode at
around age twelve. Two additional depressive episodes, at
around age eighteen, culminated in claimant’s hospitalization in
September of 1944 at the Ontario Hospital (now London Psy-
chiatric Hospital) in C: 1ada, where the disorder was diag-
nosed as manic depressive psychosis. Miss Suarez underwent
electroshock and insulin treatments while at Ontario and some
improvement. She was transferred on January 1, 1945 to the
Institute of Living in Hartford, Connecticut, where she also
received shock treatments and was institutionalized for a full
year until January of 1946.
(A-4, p. 2, 3).
When Miss Suarez returned to Puerto Rico, she was under
psychiatrist treatment by Dr. Luis M. Morales Garcia, a well
known psychiatrist in Puerto Rico, since she was twelve (12)
years old. He died in the year 1970. Unable to obtain such
medical evidence in the year 1982.
On July 27, 1972 Miss Suarez was hospitalized at the Hato
Rey Psychiatric Hospital, Hato Rey, Puerto Rico. She was
discharged on September 23, 1972. Diagnosis:
“Schizophrenia, Schizo-affective type, chronic.”
Congressional policy in amending the Social Security Act,
Title II, is to give protection and looks for the welfare of the
wage earner’s family. Mathews v De Castro 429 U.S. 181,
185-186; 97 S. Ct. 4311, 434-435; 50 L.ED. 2nd. 389.
On August 01, 1956, Congress enlarged the class of persons
entitled to a Child Disability Insurance Benefits to include
those, who were under a disability which began before age 18.
For such a person the benefits continued beyond the age of 18,
but terminated upon marriage.
In October 1958 Congress adopted the amendment that
provide that marriage would not terminate a child’s disability
benefits if the child married a person who was also entitled to
benefits under the Act. 72 Stat. 1030-1031. Califano v Jobst,
434 U.S. 47, 98 S.Ct. 95, 54 L.Ed. 2d. 228, (1977).
On October 30, 1972, Congress enacted Public Law 92-603
liberalizing the Adult Disabled Child provision by amending
Sections 202(d)(1)(B), 202(d)(1), 202(d)(6) and 202(S), 42
U.S.C.A. Sections 402(d)(1)(B), 402(d)(1), 402(d)(6) and 402(S)
of the Social Security Act (1983) thereby extending Childhood
Disability Benefits to the Disabled Adult Child of an insured
deceased parent or a parent eligible for Old-Age or Disability
Insurance Benefits if the son or daughter became totally dis-
abled after age 18 but before age 22. For application for benefits
filed after September 30, 1972, the effective date of this amend-
ment was January 1973.
Section 108, 86 Stat. 1329 (1972).
At the time of above amendment Petitioner's father was still
working and not receiving any benefits from the Social Se-
curity Administration.
It is not until April 28, 1981 that the Petitioner complied with
the Social Security Act by filing her application for Disabled
Adult Child’s Insurance Benefits. Section 202(d)(1)(A), 42
U.S.C.A. Section 402(d)(1)(A), (1983).
There is no time limitation in establishing disability for the
adult disabled child. Entitlement commences at the time the
parent files for benefits. Normal retroactivity; of 12 months
prior to filing the application.
There is no waiting period for adult disabled children’s bene-
fits. The child can become entitled to monthly benefits upon
meeting the age and disability requirements. 42 U.S.C.A.
Section 402(d)(1).
REASONS FOR GRANTING THE WRIT OF CERTIORARI
1. WHETHER THE U.S. DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO PROPERLY HELD
THAT PETITIONER, WHO WAS DISABLED BY
THE SAME IMPAIRMENT AS OF DATE OF HER
. APPLICATION AS THAT WHICH PREVIOUSLY
CAUSED HER TO BE UNDER A DISABILITY PRI-
OR TO HER ATTAINMENT OF AGE 22, WAS EN-
TITLED TO ADULT DISABLED CHILD INSUR-
ANCE BENEFITS?
This is an action brought under 42 U.S.C.A., Section 405(g)
for review of the final decision of the Secretary of Health and
Human Services which affirmed the denial of disability benefits
by the Administrative Law Judge and the Appeals Council.
The District Court accepted that the Administrative Law
Judge erred in requiring a period of continuous disability from
the time when the Plaintiff first became disabled to the date
when she filed for benefits.
The Administrative law Judge found that the evidence of
record failed to “prove that at least on July 1948 and thereafter
she was suffering from a severe impairment.”
The Court cited the case of Ave v Harris (E.D. Pa. 1980), 503
F. Supp. 1049, the Court stated:
“Under subsection (d) of Section 42 U.S.C.A. Section 402(d),
there is no requirement that claimant’s disability, which had to
have begun before age 22 and be present at time application
was filed, be continuous from age 22 until time application for
benefits was filed.” Reading v Mathews, (C.A.7th., 1976), 542
* F.2d. 993.
2. WHETHER SECRETARY OF HEALTH AND
HUMAN SERVICES, RESPONDENT, ERRED IN
CONCLUDING THAT A PERSON SEEKING ADULT
CHILD INSURANCE BENEFITS MUST SUFFER
FROM A DISABILITY WHICH BEGAN PRIOR TO
HER 22ND BIRTHDAY AND CONTINUED UNIN-
TERRUPTED UNTIL SHE APPLIED FOR
BENEFITS?
The case of Johnson v Secretary of H.H.S. (6th. Cir. , 1982),
679 F.2d. 605, the Court stated:
“Where Child Insurance Benefits claimant was unmarried
child of deceased wage earner, had to establish that he was
under disability which began before his 22nd. birthday and that
such disability lasted or was expected to last for continuous 12 -
month period.”
42 U.S.C.A. Sections 402(d)(1) and 423(d)(1)(A).
Above case is applicable to the instant case.
3. WHETHER THE LOWER COURT SHOULD HAVE
RENDERED A DECISION CLARIFYING ADULT
CHILD DISABILITY BENEFITS?
The Court below stated:
“....the A.L.J. did not know, for example, that claimant’s
sister had lived under the same roof with claimant for most of
her life. As for counsel's performance, or lack of it, we have
already noted our dissatisfaction. . . we admonished the same
attorney to desist from bringing frivolous appeals. . .” (A-4,
page 12).
The testimony of the claimant’s sister, Yolanda, was not
obtained because it was accumulative. She was present at the
hearing held on March 8, 1982.
pvnaiOnbne ns
After the case was denied by the Administrative Law
Judge we obtained an affidavit from Yolanda and from a neigh-
bor, an ex-District Judge, Rolando Martinez. Also include a
letter from claimant’s father dated May 15, 1981, before he
died. Such documents were treated as lay evidence pursuant to
Section 12:00(B)(4), Mental Disorders, Appendix 1, Subpart P,
Section IV of the Secretary’s Regulations (1983), in pertinent
part provide:
“(4). . . . reports from educational institutions and informa-
tion furnished by public welfare agencies or other reliable,
objective sources should be considered as additional evidence.”
Lay evidence is considered to be any evidence from a non-
medical source. Testimony of friends, neighbors statements.
Thorne v Weinberger, (C.A.4, 1976), 530 F.2d.580; Baerga v
Richardson (C.A.5,1974), 500 F.2d. 309, Cert. denied 420 U.S.
931 (1975).
The Court below failed to consider Sections
404.1525(a),(b)(1) of the Secretary's Regulations (20 C.F.R.
Sections 404.1525(A),(B)(1),(1983), which in pertinent part
provide:
“(a) Purpose of the Listing of Impairments. The Listing of
Impairments describes. . . for all others, the evidence must
show that the impairment has lasted or is expected to last fora
continuous period of at least i2 months.
“(b) Adults and Childhood diseases. The Listing of Impair-
ments consist of two parts:
(1) Part A contains medical criteria that apply, to adult
persons age 18 and over... .
(2) Part B contains additional medical criteria that apply
only to the evaluation of impairments of person under age
Pica:
Thus, the continuous period should be twelve (12) months
and not 300 months as stated at footnote No. 3 of the Court
below.
LE
10
(A-4, page 9).
According to the Social Security Act, the retroactive period
of benefits are of twelve (12) months at time of filing of applica-
tion not to 300 months as stated by the Court below.
“Congress conferred on the Secretary exceptionally broad
authority to prescribe standards for applying certain section of
the Act. The Secretary's definition of a term is ‘entitled to more
than mere deference or weight’, and is instead entitled to
‘legislative effect’ because Congress entrust to the Secretary
rather than the Courts the primary responsibility for inter-
preting the statutory term.”
Batterton v Francis, 432 U.S. 416, 425-26, 97S. Ct. 2399, 2405-
06, 538 L.Ed. 2d. 448, (1977).
Schweiker v Gray Panthers, 453 U.S. 34, 48, 101 S. Ct. 2633,
2640, 69 L.Ed. 2d. 460, (1982).
This case was not appealed by the undersigned counsel; but
by the Secretary three (3) days before the time-limit of sixty
(60) days to appeal. The U.S. District Court reversed the
Secretary’s denial decision.
The case cited by the Court below, Caraballo v Secretary of
H.H.S., (1st.Cir.,1981) No. 80-1696 is misplaced. (A-4, page
12).
“As a party to the litigation, Miss Suarez and her legal
representative were entitled to due process clause as protected
by the Fifth and Fourteenth Amendments of the Constitution
of the United States, the essence of which is a fair review before
a tribunal free from bias or prejudice.”
In Re Murchison, 349 U.S. 133, 136-37, 75 S.Ct. 623, 625-26,
99 L.Ed. 942 (1955).
The record is clear that, at the time the Court issued the
reprimand, the Court had decided the merits of the case, even
though there had been no trial.
ye ee See ee Te ee som
aA ORE ihn Od Ag
11
“Tribunals of the Country shall not only be impartial in the
controversies submitted to them but shall give assurance that
they are impartial. .. . Baerga v United States 255 U.S. 22,
35-36, 41 S.Ct. 230, 234, 65 L.Ed. 481, (1921).
This Honorable Court should determine if the Secretary’s
determination was supported by substantial evidence.
Richardson v Perales 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.
842 (1971).
“The Court below may not reweigh the evidence or sub-
stitute its own judgment for that of the Secretary.”
Salinas v Schweiker (5th. Cir. ,1981), 662 F.2d. 345.
If this case is frivolous, why the Court below took from
September 1984 to February 25, 1985 to decide it?
The Great Architect of the Universe knows that all appeals
before the Court below are filed in good faith.
On April 08, 1985 we filed a Motion to Stay Mandate within 7
days time limitations from the denial of the Rehearing dated
April 3, 1985, pursuant to Rule 41(a) Rules of Appellate Pro-
cedure. (A-6). We sent it by Express Mail. (A-6(A)).
On April 09, 1985 the Court below denied above motion.
(A-7)).
We are of the opinion that the Court below abused of its
discretion.
4. WHETHER AN EMPLOYEE OF THE SOCIAL SE-
CURITY ADMINISTRATION SHOULD BE AL-
LOWED TO REPRESENT THE SECRETARY OF
HEALTH AND HUMAN SERVICES SIGNING AP-
PEALS WITHOUT DUE APPOINTMENT AS
COUNSELOR?
On March 29, 1984 Ms. Lillie Price, Attorney, Office of the
General Counsel, Social Security Division, Department of
Health and Human Services, Room 635 Altmeyer Building,
6401 Security Boulevard, Baltimore, Maryland 21235 submit-
12
ted the statement of issue on appeal pursuant to F.R.A.P. Rule
30(b).
On April 11, 1984 Mr. John M. Sacchetti Chief, Retirement
and Survivor Insurance Litigation Branch, Office of the Gener-
al counsel, Social Security Division, Department of Health and
Human Services, 6401 Security Boulevard, Baltimore, Mary-
land 21235, filed Brief and Appendix to Brief of Defendant-
Appeliant.
On April 18, 1984 Mr. John M. Sacchetti signed Motion for
leave to Amend Designation of Appendix on Appeal.
Much of the Defendant-Secretary’s argument as to the stan-
dard utilized in the First Circuit relies on some unpublished
decisions of various Federal District Courts which he has at-
tached to her brief. The First Circuit rules are explicit in
stating that unpublished memoranda and opinions of any court
“are never to be cited in unrelated cases, unless they are in the
process of being published.” Ist. Cir., Rule 14.
Mr. John M. Sacchetti, according to our best knowledge and
belief, is not a member as a counselor of the Office of the
General Counsel, Social Security Division, Department of
Health and Human Services.
Only Counsel of record shall enter an appearance.
Ms. Lillie Price, Attorney, is the only counselor of record
according to the entry of March 29, 1984.
We have never received any communication from Mr. Sac-
chetti that he is the Counsel of record.
Therefore, all documents signed by him should not be taken
into consideration.
13
CONCLUSION
For the reasons aforesaid, it is respectfully prays that the
Writ of Certiorari be granted and the judgment from the U.S.
Court of Appeals for the First Circuit be vacated and that the
OPINION and ORDER from the U.S. District Court for the
District of Puerto Rico reversing the case to the Secretary of
Health and Human Services be sustained.
Respectfully submitted,
RAFAEL CARRERAS-VALLE, Esq.
Counsel for Petitioner
P.O. Box 20399
Rio Piedras, Puerto Rico 00928
Phone (809) 767-5665
May 31, 1985.
14
IN THE
Supreme Court of the Gnited States -
OCTOBER TERM, 1984
CARMEN M. SUAREZ,
Petitioner
V.
MARGARET M. HECKLER,
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 BY MAIL
I HEREBY CERTIFY that on this same date a copy of this
Writ of Certiorari was mailed to:
Hon. Rex E. Lee
U.S. Solicitor General
Department of Justice
Washington, D.C. 20530
Hon. Daniel F. Lopez Romo
U.S. District Attorney
Federal Office Building
Room 101
Carlos Chardon Avenue
Hato Rey, Puerto Rico 00918
RAFAEL CARRERAS-VALLE, Esquire
Counsel for Petitioner
APPENDICES
A-1
APPENDIX A
OFFICE OF THE CLERK
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Francis P. Scigliano 1606 John W. McCormack
Clerk Post Office & Courthouse
Boston, Mass. 02109
(617) 223-2888
April 16, 1985.
Rafael Carreras-Valle, Esquire
P.O. Box 20399
Rio Piedras, PR 00928
Re: No. 84-1143. Carmen M. Suarez v. Secretary of Health and
Human Services.
Dear Sir:
Your notice of appeal to the Supreme Court has been re-
ceived and filed.
Pursuant to a directive from the Office of the Clerk of the
Supreme Court, rather than sending a copy to the Supreme
Court Clerk’s Office, I return to you a copy of your notice of
appeal showing the date filed in this office. I am advised that
you should include this copy of your notice of appeal in the
appendix to your jurisdictional statement when you file that
document with the Clerk of that Court.
By the Court:
(s) Francis P. Scigliano
Clerk.
FPS/ljr
Enclosure
A-2, Page 1
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 84-1143
CARMEN M. SUAREZ,
Plaintiff, Appellant,
V.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee
NOTICE OF APPEAL TO THE SUPREME COURT
OF THE UNITED STATES
Notice is hereby given that CARMEN M. SUAREZ, the
Plaintiff above-named, hereby appeals to the Supreme Court of
the United States from the final order dismissing the Com-
plaint entered in this action on February 25, 1985; Petition for
Rehearing was denied on April 03, 1985.
This appeal is taken pursuant to 28 U.S.C.A. Section
1254(1).
At Rio Piedras, Puerto Rico, April 10, 1985.
RAFAEL CARRERAS-VALLE, Esq.
Counsel for Plaintiff-Appellant
P.O. Box 20399
Rio Piedras, P.R. 00928
PHONE (809) 767-5665
A-2, Page 2
CERTIFICATE OF SERVICE BY MAIL
I HEREBY CERTIFY that on this same date, a copy of this
NOTICE, was mailed to:
Hon. Rex E. Lee
Solicitor General
Department of Justice
Washington, D.C. 20530
Hon. Daniel Lopez Romo
U.S. District Attorney
Federal Office Bldg.
Room 101
Carlos Chardon Avenue
Hato Rey, P.R. 00918
(s.t.) RAFAEL CARRERAS-VALLE, Esq.
Counsel for Plaintiff-
Appellant
A-3
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 84-1143
CARMEN M. SUAREZ,
Plaintiff, Appellees,
V.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellant.
JUDGMENT
Entered: February 25, 1985
This cause came on to be heard on appeal from the United
States District Court for the District of Puerto Rico and was
argued by Counsel.
Upon consideration whereof, It is now here ordered, ad-
judged and decreed as follows: The judgment of the district
court is reversed.
By the Court:
(s) FRANCIS P. SCIGLIANO
Clerk.
(ec: Messrs. Sanchetti, Carreras-Valle, Coleman and Suarez)
A-4, Page 1
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 84-1143
CARMEN M. SUAREZ,
Plaintiff, Appellee,
VS.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE DISTRICT OF PUERTO RICO
(Hon. Juan M. Perez-Gimenez, U.S. District Judge)
Before
Campbell, Chief Judge,
Coffin and Bownes, Circuit Judges.
John M. Sacchetti, Chief, Retirement and Survivors Insur-
ance Litigation Branch, Lillie Price, Office of the General
Counsel, Richard K. Willard, Acting Assistant Attorney Gen-
eral, Daniel F. Lopez Romo, United States Attorney, F'ran-
cisco A. Besosa, Assistant United States Attorney, and Ran-
dolph W. Gaines, Deputy Assistant General Counsel for
Litigation, on brief for appellant.
Rafael Carreras-Valle on brief for appellee.
A-4, Page 2
February 25, 1985
Per Curiam. The Secretary of Health and Human Services
appeals the district court judgment reversing the Secretary's
denial to appellee Carmen Suarez of benefits under the child
disability provisions of the Social Security Act.
Appellee, born on July 30, 1926, fifty-five years old at the
date of the hearing in 1982 before the Administrative Law
Judge, Claims disability from manic depressive psychosis and
neurosis since age 12. The record! reveals that she suffered her
first serious depressive episode at around age twelve. Two
additional depressive episodes, at around age eighteen, culmi-
nated in claimant’s hospitalization in September of 1944 at the
Ontario Hospital (now London Psychiatric Hospital) in Canada
where the disorder was diagnosed as manic depressive psycho-
sis. Ms. Suarez underwent electroshock and insulin treatments
while at Ontario and after some improvement was transferred
on January 1, 1945 to the Institute of Living in Hartford,
Connecticut, where she also received shock treatments and
was institutionalized for a full year until January of 1946. On
discharge, she was reported as having been “stabilized” for
three to four months and her prognosis appeared “fairly good.”
On returning to Puerto Rico she returned to the care of the
doctor who had treated her in the past. After many years died
and his record were destroyed. There was thus no medical
evidence from 1946 until claimant was again hospitalized in
1972 and in 1973 in the Hato Rey Psychiatric Hospital in Puerto
Rico, with a diagnosis of “Schizophrenia, Schizo-affective
type, chronic.” The only testimony before the A.L.J. was that
'The record of hospitalizations between 1944 and 1946, and in 1972 and
1973, reflects the painstaking efforts of the local social security officials
charged with accumulating as much of a record as possibie for making
disability determinations.
A-4, Page 3
of claimant, although claimant’s sister, who had always lived
with her except during claimant’s time in Canada and
Hartford, accompanied her to the hearing. She told of her
hospitalization and shock treatments in Canada, her year in
Hartford, and of the 26 intervening years before her 1972
hospitalization. She spoke without reference to specific years,
describing bouts of depression and spells of euphoria, suicide
attempts, and medications taken. Her testimony occupied one
half hour and 20 pages of transcript.
On the basis of this evidence, the A.L.J. denied claimant’s
application for child’s disability insurance benefits. The A.L.J.
_ held that Ms. Suarez was not disabled within the meaning of
Section 202(d)(1) of the Act, 42 U.S.C.S. 402(d)(1), because,
although her condition between 1944 and 1946 (prior to her
twenty-second birthday on July 30, 1948) was “severe”, she
failed to prove the condition subsisted continuously thereafter.
The A.L.J. further held that Suarez could not recover benefits
exclusively for a “closed period of disability for her severe
condition” in 1944-46 because of the amount of time which had
elapsed between 1946 and 1981, when she filed her application
for benefits.
Subsequently claimant requested review by the Appeals
Council. In support counsel forwarded three substantive docu-
ments. The first was a September 1981 report from claimant’s
current psychiatrist, Dr. Nieves, describing the early hospi-
talizations and giving his opinion that she “had never get (sic) a
complete recovery since initial appearance of symptoms” and
that “(her behavior . . . had always prevailed the primary
symptoms of psychopatology (sic).” The second was an affidavit
of a former judge and neighbor of claimant to the effect that on
several occasions since 1941 he had heard her screaming, and
that he understood from claimant’s parents that she refused to
leave her room and was in deep depression for long periods of
time.
The third and most relevant document was a written state-
ment from claimant’s sister who had been silent at the hearing
A-4, Page 4
before the A.L.J. Her statement gave the only significantly
corroborative information about claimant’s condition from 1946
until 1972. The gist of it was that claimant, on returning to
Puerto Rico began a two year secretarial course. Because of
her varying “highs and lows,” she would secure very good
grades at times and would fail courses at other times. It took
her four to five years to complete the course. Subsequently she
held jobs for only brief periods. “(f)rom then on, she spent most
of her life locked up in the house... .
....” The Appeals Council coneluded that neither the sis-
ter’s statement nor those of the neighbor and Dr. Nieves would
alter the A.L.J’s decision and denied the request for review.
The district court, relying on Ave v. Harris, 503, F. Supp.
1049 (E.D. Pa. 1980), after remand, Axe v. Department of
Health and Human Services, 564 F. Supp. 789 (E.D. Pa. 1983),
rejected the Secretarys—and the A.L.J’s—view that to be
entitled to child’s disability insurance benefits claimant must
have suffered from a disability continuously from before age 22
until the time benefits were sought. It was enough that claim-
ant was disabled prior to reaching age 22 and that she suffered
the same disability when she applied for benefits. The Court
accordingly reversed the Secretary's decision.
We find ourselves in the uncomfortable position of concluding
that the Secretary committed no error of law or abuse of
discretion while at the same time harboring the haunting suspi-
cion that claimant’s case was not fully and fairly presented.
We begin by making clear that claimant’s mental condition
from 1944 to 1946 is relevant only in relation to the question of
whether her disability commenced prior to her twenty-second
birthday and thus to her right to recover benefits for any
disability subsequent to whenever her father’s insured status
came within the provisions of the Act. The A..J’s charac-
terization of Ms. Suarez’s condition during that time as “se-
vere” and the fact that the A.L.J. considered the possibility of
granting her benefits for a closed period between 1944 and
A-4, Page 5
1946, leaves no doubt that claimant was disabled within the
meaning of the Act before age 22.
Next, we consider the nature of the child’s benefits provi-
sions of the Social Security Act. They were enacted to protect
any child financially dependent on an insured wage earner in
the event that wage earner becomes unable to continue provid-
ing for the child’s support. See Adams v. Weinberger, 521 F.2d.
656, 659 (2nd. Cir. 1975). Thus, under certain statutorily de-
fined circumstances, the law grants benefits to “(e)very child
. . . of an individual entitled to old-age or disability insurance
benefits, or of an individual who dies a fully or currently
insured individual,” 42 U.S.C. § 402(d)(1).* To be eligible for
benefits the child must file an application, be unmarried, be
dependent on the wage earner, and be either less than eighteen
years old, less than nineteen years old and a full-time student,
or be “under a disability (as defined in section 444(d) of this
title) which began before he attained .1e age of 22... .” Jd.
The regulation implementing this part of the statute contains
identical requirements. See 20 C.F.R. § 404.350.
The question is whether this Section of the Act requires a
claimant to prove a continuous, uninterrupted disability after
age twenty-two. The legislative history of this provision lends
support to the Secretary’s stance. Senate Report No. 2133
mentions recognition of “the situation faced by people who have
the care of a child who because of mental deficiency never grows
up, or who because of a physical impairment requires constant
care throughout his life.” 84th Cong., 2d. Sess. 2, reprinted in
1956 U.S. Cong. & Ad. News 3881 (emphasis added). Likewise,
after discussing ways in which childhood disability could be
established, the Report concludes that “the difficulty involved
in determining that he was totally disabled before age 18 (now
22) and has remained so will not be substantial.” Id. at 3882
“This threshold requirement is obviously satisfied in this case. Although
we have no information as to when claimant's father became eligible for such
benefits, claimant testified that her insured father died some two months
before her hearing.
A-4, Page 6
(emphasis added). The Report thereafter refers to the child as
being “permanently and totally disabled since before he
reached” the critical age, now 22. /d. at 3877; so also does the
House Report. H.R. Rep. No. 1189, 84th Cong., 2d Sess. 2, at
8, 24-25.
In light of this history and the wording of the statute we
cannot say that the Secretary's interpretation is plainly wrong
or patently inconsistent with the controlling statute. Lybarger
v. Cardwell, 577 F. 2d 764, 766 (1st.Cir. 1978). We note also that
the only circuit court opinions which have been called to our
attention have registered similar views. Reading v. Mathews,
542 F. 2d 993, 997 (7th. Cir. 1976); Futernick v. Richardson, 484
F. 2d. 647, 648 (6th Cir. 1973); Reyes v. Secretary of Health,
Education and Welfare, 476 F. 2d. 910, 914 (D.C. Cir. 1973).°
We therefore hold that the A.L.J. was guided by the proper
standard in looking for evidence of claimant’s continuing total
disability after 1946. We also hold that the evidence before the
A.L.J. supported her conclusion that such disability had not
been shown. Filling in the long hiatus between 1946 (the
Hartford institutionalization) and 1972 (the first Hato Rey
hospitalization) were only claimant’s brief, general, and some-
what disjointed comments made without reference to specific
periods. Nor can we hold that the Appeals Council abused its
discretion in denying claimant’s request for review and in con-
‘We view the reasoning from Awe v. Harris, 503 F. Supp. 1049 (E.D. Pa.
1980), relied on by the district court, as being fatally flawed, not only in
disregarding all but one of the cases cited in the text and the legislative
history, but in seeking support in a reentitlement regulation, 20 C.F.R.
§ 404.351. The most favorable part of this regulation allows a child who has
been granted benefits but whose entitlement has terminated to become
reentitled if his disability recurs within 84 months of the prior cessation of
disability. But in the case of claimant, more than 300 months elapsed between
January, 1946, when she was released from the Hartford institution and July,
1972, when she was hospitalized at Hato Rey. If, therefore, claimant were to
prevail, she, a new claimant, would receive more favorable treatments than
the law accords to one who ence was fully entitled and seeks to become
reentitled. Such a result would indeed be perverse.
a a lio ta tattle
A-4, Page 7
cluding that the several statements submitted would not have
altered the A.L.J.’s recommendation.
This brings us to our strong feeling that the assistance
claimant received from her counsel was too little, too late, or
both. As we have noted, the only helpful medical reports were
obtained by the social security officials. Counsel’s contribution
to the presentation of the case was not apparent from the
hearing. It is inconceivable to us why claimant’s sister, who had
lived with her for most of their joint lives, was not asked to
testify oraily—and in much greater detail—to what she later
subscribed to in writing before the Appea!s Council.‘ If in fact
claimant had continuously been totally disabled since her re-
turn to Puerto Rico in 1946, some corroborative evidence from
neighbors and other family members might be thought to have
been available. School and employment records would also
have been helpful. And, with fairly detailed medical observa-
tions recorded during 1944 and 1945, supplemented by lay
testimony of claimant's conduct thereafter, a psychiatric expert
might have been able to give a credible opinion of the nature
and probable degree of claimant’s continuing manic-depressive
disability. :
As it happened, the A.L.J. had nothing before her but the
hospital reports, with a 26 year gap between them, and a
psychotic claimant’s general responses to the A.L.J’s ques-
tions. In a belated effort to supply something more, claimant's
counsel sent the several general statements we have described
to the Appeals Council. While not compelling, they suggest
that an opportunity to elicit valuable testimony had been al-
lowed to slip by.
We do not suggest that the A.L.J. failed in her responsibility
to develop the facts. Richardson v. Perales, 402 U.S. 389, 410
‘While such evidence may lack the strength of medical reports, it must be
considered and may be useful if it is consistent with past and present medical
diagnoses. Basinger v. Heckler, 725 F. 2d. 1166 (Sth. Cir., 184); Tieniber v.
Heckler, 720 F. 2d. 1251 (11th Cir. 1983); Kelly v. Matthews, 420 F. Supp. 359
(W.D. N.C.-1976).
A-4, Page 8
(1971). The claim involved an illness dating back almost four
decades; it may thus not have been surprising that no cor-
roborative testimony was forthcoming, particularly since
claimant was represented by counsel. The A.L.J. did not know,
for example, that claimant's sister had lived under the same
roof with claimant for most of her life. As for counsel's perfor-
mance, or lack of it, we have already noted our dissatisfaction.
We add one further fact. In May of 1981, in a per curiam
opinion in another social security appeal, Caraballo v. Secre-
tary of Health and Human Services, No. 80-1696
(1st.Cir.,1981), we admonished the same attorney to desist
from bringing frivolous appeals which “amounted to little more
than pleas that we retry the administrative case.” Our problem
here is that the appeal, while perhaps not legally frivolous, is
clearly vulnerable because of the absence of any discernible
efforts by counsel to flesh out the record at the administrative
level.
We therefore suggest that the interest of justice may well be
served in this case if the Secretary would accord to another
attorney, if requested, the privilege of attempting to supple-
ment the record by detailed submissions to the Appeals Coun-
cil, with the possibility of a reopened hearing before an A. L..J.
The judgment is reversed; a copy of this opinion to be sent to
the General Counsel, Department of Health and Human Serv-
ices. The Clerk is directed to mail a copy of this opinion to
claimant.
A-5
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 84-1143
CARMEN M. SUAREZ,
Plaintiff, Appellees,
V.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellant.
Before
Campbell, Chief Judge
Coffin and Bownes, Circuit Judges.
ORDER OF COURT
Entered April 3, 1985
The petition for rehearing is denied.
By the Court,
(s) FRANCIS P. SCIGLIANO
Clerk.
(ec: Messrs. Besosa, Sacchetti and Carreras- Valle)
A-6
APPENDIX F
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 84-1143
CARMEN M. SUAREZ
Plaintiff, Appellee,
VS.
SECRETARY OF HEALTH AND HUMAN SERVICES
Defendant, Appellant.
MOTION TO STAY OF MANDATE
APPELLEE MOVES this Honorable Court to enter an
ORDER for staying the issuance of its Mandate in appeal to the
U.S. District Court for the District of Puerto Rico for a period
of thirty (30) days after April 03, 1985, or until further Order of
this Court, or until Order of the United States Supreme Court
on Appellee’s Petition for Writ of Certiorari from Order of this
Court, dated April 03, 1985. Rule 41(b), Rules of Appellate
Procedure.
At Rio Piedras, Puerto Rico, April 8, 1985.
(s.t.) RAFAEL CARRERAS-VALLE
Counsel for Plaintiff-
Appellee
P.O. Box 20399
Rio Piedras, P.R. 00928
TEL. (809) 767-5665
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CERTIFICATE OF SERVICE BY MAIL
I HEREBY CERTIFY that on this same date a copy of this
Motion, was mailed to:
(s.t.)
LILLIE PRICE
Attorney
Office of the General Counsel
Social Security Division
Dept. of H.H.S.
6401 Security Blvd. Rm 622
Baltimore, Maryland 21235
Hon. Daniel Lopez Romo
US. District Attorney
Federal Office Bldg. Room 101
Carlos Chardon Avenue
Hato Rey, Puerto Rico 00918
<AFAEL CARRERAS-VALLE, Esquire
Counsel for Plaintiff, Appellee
A-7
APPENDIX H
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 84-1143
CARMEN M. SUAREZ,
Plaintiff, Appellees,
V.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellant.
ORDER OF COURT
Entered: April 9, 1985
Upon consideration of Appellee’s “Motion to Stay of
Mandate”.
It is ordered that said motion be and the same hereby is
denied.
By the Court,
(s) FRANCIS P. SCIGLIANO
Clerk.
(ee: Messrs. Sacchetti and Carreras- Valle)
A-8
APPENDIX I
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
581-05-0194
CARMEN M. SUAREZ,
Plaintiff,
VS. Civil No. 82-2246( PG)
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Defendant.
JUDGMENT
The Court through the Hon. Juan M. Perez-Giménez, has
entered an Order on December 16, 1983 reversing the decision
of the Secretary of Health and Human Services,
WHEREFORE, IT ISORDERED AND ADJUDGED that
the decision of the Secretary be and it is hereby reversed.
SO ORDERED.
In San Juan, Puerto Rico, this 19th day of December, 1983.
RAMON A. ALFARO
Clerk of the Court
(s.t.) IRMA R. VALLDEJULI
Deputy Clerk
A-9, Page 1
APPENDIX J
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
CARMEN M. SUAREZ,
Plaintiff,
V. Civil No. 82-2246(PG)
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Defendant.
OPINION AND ORDER
Plaintiff, Carmen M. Suarez, filed this action under 42
U.S.C. 405(g) seeking judicial review of the adverse decision
rendered by the Secretary of Health and Human Services (the
Secretary) on her claim for Child’s Disability Insurance Bene-
fits. The findings of the Secretary are conclusive only if sup-
ported by substantial evidence. Pellevia v. Celebrezze, 226 F.
Supp. 176 (D.C.La. 1964). Substantial evidence “is more thana
mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389 (1971), quoting from Con-
solidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
After careful and independent review of the record and the
memorandum filed in support thereof this Court holds that the
Administrative Law Judge (ALJ) erred in requiring a period of
continuous disability from the time when the plaintiff first
became disabled to the date when she filed for benefits.
An individual is entitled to Child’s insurance benefits if he:
she:
1. Has filed an application for child’s insurance benefits.
2. was the child of a person insured under the Act
3. was dependent on the insured person
A-9, Page 2
4. was unmarried at the time the application was filed, and
5. at the time the application was filed the Claimant was
suffering from a disability that began before age 22.
42 U.S.C. 402(d)(1), 20 C.FL.R. 404.350.
A disability must be such as to render the Claimant unable to
“engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. 423(d)(1). Carmen M. Suarez filed an ap-
plication at the Social Security Administration on April 28,
1981 for child’s disability benefits under her father’s account
alleging disability since age twelve due to manic depressive
neurosis and psychosis. The application was denied initially on
August 1981 and on reconsideration on October 1981. The
applicant filed a timely request for a hearing, which was held
before an ALJ on March 8, 1982.
The medical reports and testimony of the applicant reveal
the facts that follow. Carmen M. Suarez was born on July 30,
1926, in Puerto Rico, where she lived with her family. At age
18, in 1944, she became psychotic and was hospitalized at the
London Psychiatric Hospital in Ontario, Canada. She was sub-
sequently transferred on January 1, 1945, to the Institute of
Living, in Connecticut, where she was diagnosed as manic
depressive psychotic. After one year and four months of hospi-
talization abroad, she returned to Puerto Rico and to treat-
ment with her former psychiatrist, Dr. Morales Garcia. While
she was being treated by Dr. Morales Garcia she spent the
majority of her life in isolation, mostly inside the home. After
Dr. Morales passed away the claimant was institutionalized in
July 1972 and again in 1973, at the Hato Rey Psychiatric
Hospital, in Puerto Rico.
The ALJ found that the evidence of record failed to “prove
that at least on July 1948 and thereafter she was suffering from
a severe impairment”. Furthermore, according to the ALJ a
A-9, Page 3
closed period of disability for her severe condition in 1944
through 1946 is not in order as more than 34 years elapsed from
1946 to the date of the filing for the benefits.
A recent decision, A.re v. Harris, 503 F.Supp. 1049 (E.D.Pa.
1980) has held that in a case of child’s disability benefits nothing
in the Social Security Act (the Act) requires that the disability
be continuous from the time the claimant first becomes dis-
abled to the time he files for benefits. A.e explained that
Section 404.351 of the Code of Federal Regulations “clearly
contemplates through the use of the word ‘reentitlement’ that a
claimant may, at times, not be disabled after a period of dis-
ability and then, once again, become unable to engage in sub-
stantial gainful employment.” A.re, supra, at 1051.
Section 404.351 of C.F.R. even provides benefits for chil?’s
insurance claimants in that type of situation:
“If your entitlement to childs benefits has ended you may
be reentitled to the same earnings record if you have not
married and if you apply for reentitlement. Your reen-
titlement may begin with
, >
“(b) the first month in which you are disabled if your
disability began before you became 22 years old; or
| ng
A requirement that a period of disability be uninterrupted
prior to age 22 until the time that the application is filed would
be to negate the meaning of the Act. 42 U.S.C. 405(g) and
404.350 of C.F.R. Awe v. Harris, supra; cf. Reading v. Mat-
thews, 542 F.2d 993 (7th Cir. 1976).
The overwhelming weight of medical evidence demonstrates
that the plaintiff has fulfilled the necessary requirements to
obtain child’s benefits as she was statutorily disabled prior to
age 22 and again when she applied for the benefits on April
1981. Clinical notes drafted at the Institute of Living, in Con-
necticut, disclose a weekly account of the severity of plaintiffs
A-9, Page 4
illness during her stay at that hospital in 1945, when she was
18. During that time Ms. Suarez was in a state of constant
depression, was seclusive and apathetic, had suicidal tenden-
cies, and had to be continually observed. The treatment at this
institute consisted of two weekly electroshocks and medica-
tion. Upon her discharge in 1946 it was reported that her
prognosis appeared “fairly good”. She came back home to
Puerto Rico and continued to be treated by Dr. Morales until
his death. She went to the University of Puerto Rico in hope of
completing a two-year secretarial degree. Because of her emo-
tional imbalance it took her five years to finish school. The
plaintiff held a few jobs which she was unable to keep except for
very short periods of time. The record indicates she lived in
isolation and spent most of her life confined to the home. Dr.
Pedro Nieves diagnosed her case as “chronic schizophrenia”. In
the psychiatric report dated September 9, 1981, Dr. Nieves
opined that the claimant was circumscribed to her specific
needs and did not tolerate stressful situations. He concluded
that the patient's “possibilities of work (were) nil” and that she
would need indefinite psychiatric treatment with the aid of
medication. It is clear that the same disability was present in
the claimant prior to attaining age 22, as on April 1981, when
she applied for the benefits.
Accordingly, this case is REVERSED to the Secretary.
IT IS SO ORDERED.
San Juan, Puerto Rico, December 15, 1983.
(s.t.)) JUAN M. PEREZ-GIMENEZ
U.S. District Judge
affirmed.
A-10
APPENDIX K
below. Accordingly, the decision of the district court should be
(s.t.)
DANIEL F. LOPEZ ROMO
United States Attorney
RANDOLPH W. GAINES
DEPUTY ASSISTANT GENERAL
COUNSEL FOR LITIGATION
OFFICE OF GENERAL COUNSEL
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
A. GEORGE LOWE
Chief, Disability Litigation
Branch
Mary BETH MCNAMARA
Attorney
Office of General Counsel
Social Security Division
Department of Health and
Human Services
Room 650 Altmeyer Building
6401 Security Boulevard |
Baltimore, Maryland 21235
Telephone: (301) 597-1088
(FTS) 987-1088
Attorneys for Appellee
Counsels authorized by the Office
of General Counsel,
Department of Health and
Human Services.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.