Petition for Writ of Certiorari — Dowell v. Bowen

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IN THE ————

SUPREME COURT OF THE UNITED STATES

APRIL TERM, 1987

GLADYS M. DOWELL for

DYER P. DOWELL, deceased

PI? INTIFF-APPELLANT.

Ve

OTIS R. BOWMAN, M.D.

SECRETARY HEALTH AND

HUMAN SERVICES

Defendant-Appellee.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS, SIXTH CIRCUIT, OHIO; ON

WRIT OF CERTIORARI TO THE SUPREME

COURT OF THE UNITED STATES

BRIEF FROM RESPONDENT

PETITIONER PRO-SE

MRS. GLADYS M. DOWELL

6200 TAYWOOD, APT. H

ENGLEWOOD, OHIO 45322

JUNE 15, 1987

QUESTIONS PRESENTED

(1) Is our Judicial System adequately

prepared to judge ali Social Security

disability cases that go before a district

court for judgement?

(2) What iS more important: justice,

or the rule used to determine what it must

be?

(3) If there is a need for justice and

the law used is inadequate to supply the

need, would not the law dictate an

injustice to be made?

(4) Does the rule 42 U.S.C. 405(g) give

the Secretary full authority to choose the

lesser important disability evidence to

make a decision on, when the evidence

eliminated can prove disability?

(5) Shouldn't we consider, what must

stand in any case is justice if it is to

prevail, regardless of court proceedings,

requirements and rules set forth by law to

determine a case.

(6) Did the need for Justice come

Siret?

(7) Does law provide Social Security

with rules that permit them to violate a

citizen's Signature rights, without

informing them so they can protect

themselves against such action?

(8) Does law consider the effects this

action would have on a citizen's family,

in the event of their death?

(9) Does law give Social Security full

authority to decide for any applicant what

claim of a disability they can make and

cannot consider any other, before the

claim is examined?

(10) Can Social Security now decide to

take the word of an applicant, even though

believed, over his en's word if doubt

is apparent at the time the application is

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filed?

(11) Can the effects of such a decision

by Social Cecurity, if legal, justify

denying disability benefits because of a

citizen's death, and not because of

failure to be informed properly to resolve

a Situation satisfactorily while they are

living?

(12) Shouldn't my husband, by the

Secretary, been considered an exception to

the rule, rather than an example of it,

since his rights were denied him before

the Secretary received this case?

(13) Wouldn't this consideration given

my husband a chance to have his disability

considered on it's own merit, rather than

by the ruling on Judicial review?

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TABLE OF CONTENTS

Questions presented

Authority

Opinion below

Subject application

Argument

U.S. Constitution

Article of Amendment

14th Amendment

Conclusion

Content's application

Certificate of service

Representing Council

Appendix

Page

16

A-1 to A-23

AUTHORITY

U.S.A. Constitution

Articles of Amendment

14th Amendment

IN THE SUPREME COURT OF THE UNITED STATES

APRIL TERM 1987

GLADYS M. DOWELL for

DYER P. DOWELL (deceased)

PLAINTIFF - APPELLANT,

V.

OTIS R. BOWMAN, M.D.

Secretary of Health and

Human Services

Defendant - Appellee.

APPEAL FROM THE UNITED STATES COURT OF

APPEALS, SIXTH CIRCUIT, OHIO; ON WRIT OF

CERTIORARI TO THE SUPREME COURT OF THE

UNITED STATES.

OPINION BELOW

The United States Court of Appeals

did not make a decision on the application

my husband filed with Social Security on

his disability, October 2, 1979.

The Sixth Circuit Court issued their

decision April 14, 1987 denying disability

benefits. Case Docket No. 86-3254.

My appeal to the Supreme Court is to

review the record and determine if the

action Social Security took on his

application denied him his’ rights under

the law and within the Constitution of the

United States, and in so doing, denied him

his Social Security disability benefits.

Even though substantial evidence

support the Secretary's decision, in this

case, it cannot be considered evidence

that lawfully should be supported.

The record shows all medical and

disability evidence fully Support my

husband as being disabled and fuliy

support his doctor's statement he was

totally disabled during the time he

treated him, September 1977 to November

1978.

The only evidence that supports the

Secretary's position, which denies

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benefits is; his doctor could not make a

medical report on his iliness after his

death.

He diagnosed an abdominal aneurysm

by x-ray, while hospitalized September 14,

Loi i. He needed further x-rays to

substantiate his diagnosis.

This situation could have been

resolved by his doctors while he was

living. I asked Social Security to call

his doctors, they failed to do so.

From the time he filed his

application to the day of his death was

about four months.

SUBJECT APPLICATION

My husband filed an application

October 2, 1979. He was age 60. He

claimed a disability August 19, 1979 and

signed his application.

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Before anything was determined I

asked the information go to an Examiner's

office for the purpose of calling his

doctor who treated him for an earlier

illness. My husband did not oppose me in

my decision.

When we left the Social Security

office all that was on his application was

the claim and his signature.

The Examiner called, I asked that she

call his doctor, she led me to believe she

would.

At an Administrative hearing November

26, 1980, the application came into

question. It was the first time I knew

it's contents. A statement had been added

into a question on the application (page

14).

It was clear why his doctor had not

been called.

My husband's rights were denied him

in the filing and determining of his

Gisability without just cause or reason.

Once a person has’7 signed a document

and anything is adidas thereafter without

the Knowledge or consent of the signer to

what has been added, the signer cannot be

held responsible for what has been added

even though it was signed.

He did not give Social Security

instructions to put the statement on his

application, which he had signed. He was

not informed legal action was taken

against him and had the right to decide

anything concerning these benefits in the

event of his death.

If Social Security had the legal

right to addto what he had signed they

also had the responsibility to inform they

were taking legal action so he could

oppose them in it.

The Examiner had the same

responsibility to inform him. It would be

evident in the event of his death these

benefits would not be payable before the

August 1979 onset date.

ARGUMENT

In the United States Court of Appeals

decision it explains: APPENDIX A-18.

The Secretary afforded me opportunity

to claim and prove an earlier onset date,

other than the onset date on my husband's

application.

At the first hearing, I could not

prove or claim an earlier onset date. I

testified, it was my husband who was

denied his right to claim and prove an

earlier onset date during the time he was

living.

At the second hearing held April 25,

1984, disability was claimed and proven.

He was found to be disabled before August

19, 1979. The ALJ approved benefits 13

months.

His decision, based on age,

education, and work experience, was

rejected by the Appeals Council and

Supported by the Secretary.

On Judicial Review the case was

limited to 42 U.S.C-405(g).

Obviously in reviewing the record the

Secretary's decision would stand. Medical

and disability evidence at the first

hearing alone, would not show a severe

impairment, all evidence evaluated by the

second ALJ, fully supported the evidence

at the first hearing as disabling.

U.S.A. CONSTITUTION

ARTICLES OF AMENDMENT

14TH AMENDMENT

"All persons born or naturalized in

the United States and subject to_ the

jurisdiction thereof, are citizens of the

United States and of the States wherein

they reside."

My husband waS a citizen of the

United States, an individual having

"Certain unalienable rights."

One of which was, to decide, without

any interference from Social Security

rule, what he would consider doing with

his property, possessions, ete., oF

anything he was entitled to after his

death, which would include Social Security

benefits on his disability.

He worked 30 years for Frigidaire

Division, General Motors, Dayton, Ohio.

He was entitled to claim and prove an

earlier onset date of disability, at the

time his application was filed.

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(1) It's evident, if his doctor had been

called, a medical report would have been

made. A solution to his problems at that

time would have been resolved.

(2) It's evident the medical term for

his condition wowld have been known and

understood by both.

(3) It's evident, his doctor diagnosed

an abdominal aneurysm September 1977. The

work activity on his job before retirement

would not have permitted him to work.

(4) It's evident with this knowledge the

autopsy would have been performed on the

abdominal area had his death occurred.

The autopsy was only performed on the

chest area because of circumstances

involving his illness.

(5) It's evident by the record Doctor

Williams, Radiologist, at the Cookeville

General Hospital, Cookeville, Tennessee

was called on April 7, 1982.

We discussed the x-ray taken in

September 1977, those things that occurred

to my husband at death, the autopsy

report, and the catheterization taken at

the Vanderbilt Hospital December 1977.

After medically considering all that

was discussed, he wrote a letter giving me

a detailed description of the x-ray and

stated, I had indicated to him my husband

had died of a ruptured aortic abdominal

aneurysm.

It's therefore evident, the only time

a claim could be made and proven on his

disability at an earlier onset date, would

have had to be at the time he filed his

application and before his death.

He filed his application October 2,

1979.

He received his Award Certificate

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determined on the August onset date

December 14, 1979.

The remaining month and a nalf was

occupied with tests on his arteries and

open heart surgery at a hospital 140 miles

to and from home. He died at home January

27, 1980.

The record is indication of proof, he

was disabled from September 1977 to

January 27, 1980.

When I filed for a reconsideration on

my husband's disability February 1980,

shortly after his death, I expected his

disability to be determined on it's own

merit.

When he filed his application the

claim on it was not decided upon. He was

to decide on an earlier claim before his

disability would be determined. He was

denied this right because of the action

taken against him on his application.

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The action was supported by the first

ALJ. His decision denied all benefits

before August 19, 1979.

On Judicial Review the ¥.8.

Magistrate noted the second ALJ's decision

was not supported by substantial evidence.

His conclusion supported Social Security

as taken lawful action on October 2, 1979

(date application was filed).

The U.S. District Court adopted the

U.S. Magistrate's recommended decision in

it's entirety and closed the docket file

on the Case No. C-3-82-0105.

In the U.S. Court of Appeals I

appealed as a witness on the application.

The court states: This court cannot

base it's decision ona Single piece cf

evidence; the record must be evaluated as

a whole.

Consequently the application has

never had a Judicial judgement made on it

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that would determine if my husband's

rights as a citizen of the United States

were lawfully denied him.

Social Security brought the action

against him, which in turn denied him

disability benefits.

Because of this situation I _ find

there is not a United States Court I can

appeal this case to for justice if not the

Supreme Court of the United States.

I would therefore respectfully

request of the Supreme Court that

restitution be made.

Respectfully submitted

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Pius Leste Ma Mout

MRS. GLADYS M. DOWELL

6200 TAYWOOD, APT. H

ENGLEWOOD, OHIO 45322

CONTENTS OF APPLICATION

Question:

What iilness are you filing your

disability on?

Answer:

I had a serious heart attack on

August 19th.

Question:

When did you become disabled?

Answer:

He made a statement his illness did

not disable him before August 19th.

Signature

My husband's name

and middle initial.

EDITOR'S NOTE

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.

CERTIFICATE OF SERVICE

I hereby certify that on this

day of July 1987, I caused to be served

required copies of this petition by

mailing them postage prepaid to:

United States Court of Appeals

Sixth Circuit

U.S. Post Office and Courthouse Bldg.

Cincinnati, Ohio 45202

Anthony W. Nyktas

United States Attorney

Southern District of Ohio

220 U.S. Post Office and Courthouse Bldg.

100 East Fifth Street

Cincinnati, Ohio 45202

Donna Morros Weinstein

Chief Council for Region V

United States Department of Health

and Human Services

300 Wacker Drive - 18th Floor

Chicago, Illinois 60606

The Solicitor General's Office

Department of Justice

Washington D.C. 20543

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Council who represented me on this

Attorney:

Gary M. Blumthal

Lang Hornstein

1401 Talbott Tower

Dayton, Ohio 45402

Attorney:

Jonathan A. Horwitz

131 N. Ludlow Street

Talbott Tower

Dayton, Ohio 45402

Case:

APPENDIX

No. 86-3254

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GLADYS DOWELL for

DYER P. DOWELL, deceased,

Plaintiff-Appellant,

Vv.

OTIS R. BOWEN, M.D.,

Secretary of Health and

Human Services,

Defendant-Appellee.

On Appeal From The United States

District Court for the Southern

District of Ohio, Eastern Division

Decided and Filed

Before: KEITH, Circuit Judge; WEICK and

CONTIE, Senior Circuit Judges.

PER CURIAM. Gladys Dowell appeals from

the judgment of the district court

affirming the Secretary's denial of social

security benefits. For the reasons that

follow, we affirm.

Dyer Dowell filed an application for

disability insurance ! benefits on October

2, 1979, claiming inability to work as of

August 19, 1979, due to heart trouble. On

December 15, 1979, the Social Security

Administration awarded benefits as of the

alleged onset date. However, Mr. Dowell

Gied on January 27, 1980, in the fifth

month of his statutory waiting period;

therefore, the Secretary determined that

benefits were not payabie pursuant to 42

U.S.C. 4230C) (2). Mrs. Dowell filed a

request for reconsideration on February

15, 1980, stating that she was entitled to

benefits because her husband had lived

into the fifth month of his waiting

period. On reconsideration, an

independent review affirmed the previous

ruling denying payment of benefits. Mrs.

Dowell then requested an administrative

hearing because she disagreed with the

Secretary's determination of her husband's

disability onset date. An administrative

hearing was held on November 26, 1980.

Mrs. Dowell was represented by

counsel at this hearing. At this time,

her counsel argued that the disability

onset date was September 14, 1977, and not

August 19, 1979. However, the ALJ issued

an opinion on January 22, 1981, upholding

the onset date of Augiuir 19, 1979. The

Appeals Council denied Mrs. Dowell's

request for review of the ALJ's decision

on June 3, 1981.

Mrs. Dowell sent letter

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additional medical evidence to the Appeals

Council after it had denied her request

for review. However, after considering

this additional material, the Appeals

Council concluded that the ALJ's decision

would stand as the final decision of the

Secretary.

Mrs. Dowell then filed an action

with the district court. The Appeals

Council was unable to locate Mr. Dowell's

Claim file and the case was remanded, at

the Secretary's request, to locate and

reconstruct the file. After locating the

file and receiving additional medical

reports that had not been considered by

the ALJ, the Appeals council vacated the

decision of the ALJ and remanded the case

to a second ALJ for further proceedings.

A second hearing was held on April 25,

1984. Mrs. Dowell was represented by

counsel at this hearing.

Mrs. Dowell testified at the

hearings as to Mr. Dowell's personal

history, his work history and his

ailments. Mr. Dowell was born on November

4. 1918. He had an eighth grade

education and had worked as a machinist

and a welder for General Motors-

Fridgidaire Division over the past 30

years. He retired on September 27, 1974.

After his retirement, Mr. Dowell and

his wife purchased and lived on a small

farm of approximately 13 acres. Mrs.

Dowell stated that her husband had been

very active on this farm during the first

year of his retirement taking care of

cattle, a horse and the land. She stated

that Mr. Dowell began to reduce his

activities in 1976 because he could not

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physically continue to do all that he had

been doing. He began selling the land at

that time. She testified that by 1977,

Mr. Dowell was not active at all. By this

time, the only animals remaining on the

farm were Mr. Dowell's two hunting dogs.

She further testified that Mr.

Dowell began experiencing left leg pain in

1976. In 1977, he also began experiencing

pain in his lower back and left hip. In

1978, both legs began to bother him. Mrs.

Dowell stated that her husband last used

his tractor in 1978. Mr. Dowell usually

went bird hunting when the season opened.

He discontinued this activity in November

1978, due to pain in his legs and

shortness of breath. This condition

steadily became worse until the day of his

death. Mrs. Dowell further testified that

in the spring and early summer of 1979,

Mr. Dowell suffered blackout spells. In

August, 1979, he began experiencing chest

pain. He had not experienced chest pain

prior to that time. Mrs. Dowell stated

that Mr. Dowell was able to walk only

short distances without having to stop and

Sit down.

The following medical evidence is

contained in the record. On September 14,

1977, Mr. Dowell was hospitalized

complaining of severe low back pain and

pain in the left hip with radiation down

to his lower right extremity. He was

discharged as improved seven days later

with diagnoses of mechanical low back

syndrome with degenerative disc disease in

the lower lumbar region; abdominal

aneurysm at the level of L4;

diverticulosis of the sigmoid colon;

diabetes mellitus, mild to moderate; and

exogenous obesity.

Mr. Dowell was hospitalized a second

time on August 9, 1979, complaining of

chest pain that began occurring about

three days prior to admission. He

reported that he was able to walk without

difficulty and that he had been

experiencing intermittent aching pain in

his left buttocks area which was brought

on by exercise and relieved by rest. This

condition was noted as being classic

intermittent claudication of the left hip.

An EKG failed to reveal evidence of a

myocardial infarction. He was discharged

on August 13, 1979, with a diagnosis of

arteriosclerotic heart disease and

peripheral vascular disease with

intermittent claudication.

On August 19, 1979, Mr. Dowell was

readmitted tc the hospital complaining of

severe substernal chest pain, nausea and

diaphoresis. He was placed in the

coronary care unit. EKGs were consistent

with acute anterior wall myocardial

infarction. He was discharged as improved

on August 28, 1979. The final diagnosis

was atherosclerotic heart disease with an

anatomy of acute anterior infarction and a

chvsiolosy of coronary insufficiency and

mild congestive failure, compensated. He

was given various medications and advised

to rest at home, to do normal physical

activities around the house and to avoid

any strenuous activity.

Following this hospitalization, a

September 11, 1979 medical progress note

indicated that Mr. Dowell had experienced

no further chest pain or _ shortness of

breath since his discharge. An October 2,

1979 progress note indicated that Mr.

Dowell was almost back to full regular

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activities and that his main limiting

factor was claudication in his left leg.

He had suffered two very mild episodes of

angina which responded quickly to

nitroglycerin. A November 20, 1979

progress note indicated that Mr. Dowell

was having problems with exertional chest

pain and continued severe claudication in

the left leg. Arrangements were made for

angiographic studies of his heart and

lower extremities with possible surgical

intervention.

Mr. Dowell was admitted to

Vanderbilt University Hospital on December

6, 1979, for a cardiac catheterization

with coronary arteriograms. The

Catheterization revealed moderately

reduced left ventricular function and

severe three vessel disease with an

occluded left anterior descending artery.

in wa | aia oe —— - + FF we 7

Coronary bypass surgery was recommended.

The final diagnosiS waS coronary artery

disease; intermittent left lower detiveud Gy

Claudication; elevated triglyceride and

cholesterol; and mild adult onset diabetes

mellitus.

Mr. Dowell was readmitted to

Vanderbilt University Hospital on January

6, 1980, for coronary artery bypass

surgery. This surgery was performed and

he was discharged on January 17, i980,

with a final diagnosis of ischemic heart

disease.

Mr. Dowell died on January 27, 1980.

The immediate cause of death was pulmonary

embolism due to, or as a result of,

atherosclerotic heart disease. The

interval between the onset of the

pulmonary embolism and death was immediate

and the interval between the onset of the

A-12

atherosclerotic heart disease and death

was four months.

In a letter dated October 19, 1979,

Dr. Vossel, a treating physician, reported

that Mr. Dowell suffered from coronary

artery disease and peripheral vascular

disease which permitted Mr. Dowell to walk

only a short distance before experiencing

claudication. In a physical capacities

evaluation, he reported that Mr. Dowell

could lift 10 pounds’ or less frequently,

stand or walk one hour per day and could

not sit and work for six out of eight

hours. Ina letter dated April 14, 1981,

Dr. Vossel stated that Mr. Dowell had a

very severe, diffuse atherosclerotic

disease that obviously had been going on

for many years.

In a letter dated March 10, 1981,

Dr. Jones, another treating physician,

stated that he had treated Mr. Dowell from

April, 1977 to November, 1978, for

mechanical back syndrome, diabetes

mellitus and abdominal aneurysm. He

opined that Mr. Dowell was totally and

permanently disabled during that time.

In a letter dated June 4, 1981, Dr.

Perry, another treating physician, stated

that he first saw Mr. Dowell on December

6, 1979. He stated that Mr. Dowell's

claudication was of Significant and

limiting proportions at that time and that

Mr. Dowell's coronary disease waS an even

greater limiting factor. However, Dr.

Perry stated that he did not know when Mr.

Dowell's arterial insufficiency of the

left leg had reached Significantly

disabling proportions, although he

suspected that Mr. Dowell's problems were

of disabling proportions before August,

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1979.

On December 13, 1979, Dr. Rayburn, a

consulting physician, opined that Mr.

Dowell met the impairment requirements of

20 C.F BR. pt. 804, Gubet. Ff, @QGhp. i,

4.04Bl. This opinion was based on an

August 22, 1979 EKG of Mr. Dowell.

After considering the documents in

the record and the hearing testimony, the

ALJ issued a decision on May 18, 1984,

finding that Mr. Dowell had become

disabled as defined in the Social Security

Act, commencing November 25, 1978.

However, the Appeals Council did not adopt

the ALJ's decision. The Council opined

that the medical evidence of the record

failed to establish a severe impairment

prior to August 19, 1979, the date upon

which mr. Dowell had originally claimed

disability.

The Appeals Council noted that there

was little history of medical treatment

from September, 1977, until August, 1979,

when Mr. Dowell had a myocardial

infarction. Additionally, the Appeals

Council noted that Mr. Dowell's = own

statements did not support his widow's

contention that he was disabled prior to

August 19, 1979. Mr. Dowell had stated in

his disability application that his

lilness did not disable him until August

19, 1979, and his January, 1980 hospital

report showed that he indicated that he

had always been healthy until August,

1979. After making this determination,

the Appeals Council went on to deny

disability benefits because Mr. Dowell

died prior to the expiration of the

statutory five-month period.

Mrs. Dowell timely filed the instant

action with the district court pursuant to

42 U.S.C. 405(g). The Magistrate issued

his Report and Recommendation on September

12, 1985, granting judgment to the

Secretary. The district court adopted the

Magistrate's Report and Recommendation on

December 18, 1985, thereby affirming the

Secretary's decision to deny benefits.

This pro se appeal followed.

Pursuant to 42 U.S.C. 405(g), the

Secretary's findings are conclusive if

supported by substantial evidence. For

there to be substantial evidence there

must be "more than amere 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, 401 (1971) (quoting

Consolidated Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)). This court cannot base

its decision entirely upon a single piece

of evidence; the record must be evaluated

as a whole. Hephner v. Mathews, 574 F.2d

359, 362 (6th Cir. 1978).

This deferential standard of review

applies only to resolving issues of fact

and credibility. Wiggins v. Schweiker,

679 F.2d 1387 (llth Cir. 1978). Even if

the reviewing court wouid resolve the

factual issues differently, the

Secretary's determination must stand if it

is supported by substantial evidence.

Kinsella v. Schweiker, 708 F.2d 1058 (6th

Cir. 1983).

In the memorandum attached to her

Notice of Appeal, Mrs. Dowell argues that

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there is not substantial evidence in the

record to Support the Secretary's

determination of the onset date of her

husband's disability. In addition to this

argument, she also contends that her

husband was prevented "from making a

decision to seek an earlier date of

disability than he had claimed at the time

he filed his application." Although Mrs.

Dowell may believe this contention, the

record cleariy shows that the Secretary

afforded Mrs. Dowell the opportunity to

claim and prove an earlier onset date.

After receiving her first request for an

administrative hearing, in which she

stated that she disagreed with the

Secretary's determination of the onset

date, the Secretary granted a hearing

solely for that purpose. Additionally,

the Appeals Council considered

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supplemental evidence offered by Mrs.

Dowell regarding her contention that her

husband was disabied on an earlier date.

Moreover, at the second hearing, the

record clearly reveals that Mrs. Dowell

once again was afforded the opportunity to

present evidence of an earlier onset date.

In sum, the Secretary did not preclude

Mrs. Dowell from seeking a disability

onset date which was earlier in time than

the date claimed on Mr. Dowell's

application.

In support of her argument that the

Secretary's decision is erroneous, Mrs.

Dowell relies on the medical evidence of

record and contends that it shows that her

husband was disabled prior to August,

1979. Our review of the medical evidence

reveals that the reports of Drs. Jones and

Perry are supportive of this contention.

However, we do not believe that the

Secretary abused his discretion in

according little weight to these reports.

Dr. Jones' March 10, 1981 report stated

that Mr. Dowell was permanently and

totally disabled due to mechanical back

syndrome, diabetes mellitus and an

abdominal aneurysm from April, 1977, to

November, 1978. However, as noted by the

Appeals Council, this conclusory opinion

was in conflict with the medical evidence

as a whole as it related to the pertinent

period and lacked findings indicative of

an impairment of such severity as _ to be

consistent with his conclusion. Although

this Circuit has consistently held that a

treating physician's diagnosis is to be

accorded substantial deference, this is

only appropriate if the treating physician

supplies sufficient data to substantiate

his diagnosis. See Harris v. Heckler, 756

F.2d 431, 435 (6th Cir. 1985). In the

instant case, Mr. Dowell was hospitalized

in September, 1977, for his back pain;

however, the records indicate that he

improved during the course of his hospital

Stay and was discharged after a one-week

Stay. Subsequent to this hospitalization,

the record is devoid of any further

medical evidence until Mr. Dowell was

hospitalized for chest pains in August,

1979. Therefore, we believe that the

Secretary waS correct in discounting Dr.

Jones' report.

Dr. Perry's report contains

extensive medical data; however, Dr. Perry

stated that he could not fix a firm date

as to when Mr. Dowell's arterial

insufficiency reached Significant

disabling proportions. He further stated

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that he was certain that Mr. Dowell's

condition was of disabling proportions for

several months prior to December, 1979;

however, he was only "suspect" that it was

to such a degree prior to August, 1979.

Ultimately, the claimant has the

burden of establishing that he became

unable to engage in substantial gainful

activity by reason of physical or mental

impairments, the existence of which is

demonstrated by medically acceptable

Clinical and laboratory diagnostic

findings. Allen _v. Califano, 613 F.2d

139, 145 (6th Cir. 1980). In the instant

case, Mrs. Dowell did not meet this burden

in her effort to establish a disability

onset date prior to August, 1979, because

the medical evidénce of record fails to

establish a disability prior to August 19,

1979. Subsequent to this date, there is

substantial evidence to support the

»

!

23

Secretary's determination of an August 19,

1979 onset date.

Having concluded that substantial

evidence supports the Secretary's decision

to deny disability benefits, we

accordingly AFFIRM the judgment of the

district court.

ve

cad

Supplemental Appendix

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

GLADYS DOWELL, {f{»:

DYER P. DOWELL, Deceased

SSN: 410-18-7371

Plaintiff,

MARGARET M. HECKLER,

SECRETARY OF HEALTH

AND HUMAN SERVICES,

Defendant. : NOTICE AND ORDER

Attached is the Report and Recommenda-

tions of the under-signed, filed on Sept. 12,

1985. Any party may object within thirty(30)

days of service of the Report and Recommenda-

tions by filing with the Clerk of Court, and

serving on all other parties, the Judge and

the Magistrate, specific written objections

which shall identify the portions of the pro-

posed findings, recommendations or report to

which objection is made, along with a memoran-

dum of law setting forth the basis for such

objection. (If the objections are based on

matters of record at an oral hearing, the

objecting party or parties shall cause to be

ns thereof as the parties may agree

Magistrate deems sufficient, unless the

‘+t Judge otherwise directs.)

In the event a party files objections to

the Report and Recommendation, all other

parties shall respond to said objections

within twenty (20) days after being served a

copy of the objections. The objecting party

will then be permitted ten (10) days to file a

reply memorandum after being served with a

copy of the response.

Failure to make objections in accordance

with this procedure may forfeit rights on

appeal, see United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

MICHAEL R. MERZ

UNITED STATES MAGISTRATE

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

GLADYS DOWELL, for

DYER P. DOWELL, Deceased

SSN 410-118-7371

Plaintiff, : (Magistrate Merz)

SECRETARY OF HEALTH

AND HUMAN SERVICES,

Defendant.

REPORT AND RECOMMENDATIONS

OF UNITED STATES MAGISTRATE

Plaintiff brought this action pursuant

to <2 U.S.C. 8 405(g) for judicial review of

the final decision of the Defendant Secretary

of Health and Human Services ("Secretary")

denying Plaintiff's application for Disability

Insurance Benefits. This matter is before the

Court for decision after oral arguments of the

parties directed to the record as a whole.

APPLICABLE LAW

Judicial review of the Secretary's

determination is limited in scope by 42 U.S.C.

8 405(g). The Court's sole function is to

determine whether the record as a whole

contains substantial evidence to support the

Secretary's decision. The Secretary's

findings stand if they are supported by "such

relevant evidence as a reasonable mind might

accept as adequate to support a conclusion."

Richardson v. Perales, 402 U.S. 389, 401

(1971) (citing Consolidated Edison Co. v.

N.L.R.B., 305 U.S. i897, 2249 (1938)). In

deciding whether the Secretary's findings are

supported by substantial evidence, the Court

must consider the record as a whole. Hephner

v. Mathews, 574 F.2d 359 (6th Cir. 1978);

Houston v. Secretary of H.H.S., 736 F.2d 365

(6th Cir. 1984); Garner v. Heckler, 745 F.2d

383 (6th Cir. 1984).

To qualify for disability insurance

benefits, Plaintiff must meet certain insured

status requirements, be under age 65, file an

application for such benefits and be under a

disability as defined by the Social Security

Act, 42 U.S.C. $8 416(i), 423. Establishment

of a disability is contingent upon two

findings. First, Plaintiff must suffer froma

medically determinable physical or mental

impairment that can be expected to result in

death or has lasted or can be expected to last

for a continuous period of not less than 12

months. 42 U.S.C. § 423(d)(I)(A). Second,

the impairments must render Plaintiff unable

to engage in his previous work or in any other

substantial gainful employment that exists in

the national economy. 42 U.S.C. § 423(d)(2).

OPINION

Claimant filed an application for a pe-

riod of disability and disability insurance

benefits on October 2, i979. (Tr. 133-36).

Claimant was awarded benefits as of his

alleged onset date, but he died on January 27,

1980, in the fifth month of his waiting period

and benefits were not payable. Claimant's

widow, Plaintiff in this case, appealed

arguing that claimant's impairment had been

iisabling since September, 19/77. Plaintiff's

appeal was denied at the hearing level on

January 22, 1981, and that decision was af-

firmed by the Appeals Council on June 3, 1981.

(Tr. 59-66; 56-57). Plaintiff instituted a

civil action in this Court and on July 22,

1982, this Court granted Defendant-Secretary's

Motion to Remand. (Doc. 10). In a decision

dated April 28, 1983, the Appeals Council

vacated its denial of Plaintiff's request for

review and the decision of the ALJ and re-

manded the case to an ALJ for further pro-

ceedings. (Tr. 27-28). The ALJ found that

prior to November 25, 1978, the claimant had

the residual functional capacity to perform

the full range of light work and after Novem-

ber 25, 1978, the claimant had the residual

functional capacity to perform the full range

of sedentary work. (Tr. 18, finding 7). The

ALJ then relied on Section 202.03 of the Grid

and determined that the claimant was not

sabled

finding 11). ‘The ALJ also relied on Section

Section 202.02 of the Grid and found that

claimant was disabled commencing November 25,

1978. (Tr. 18 finding 12). The Appeals

Council did not adopt the findings of the ALJ.

(Tr. 11). The Council opined that the medical

evidence failed to establish a severe impair-

ment prior to August 19, 1979, the date the

claimant originally alleged his disability

began. (tr. iG). The Council found that

Plaintiff had not met her burden to show an

earlier onset date by a preponderance of the

credible evidence and that the ciaimant was

not disabled at any time prior to August 19,

1979. (Tr. 10, findings 4 and 5). The

Appeals Counci! determined that, based on the

application filed on October 2, 1979, there

was no entitlement to a period of disability

or disability insurance benefits, since the

claimant, who became disabled on August 19,

1979, died prior to the expiration of the

Lt). The Secretary denied disability

insurance benefits based on the Appeals

Council's findings.

The record ghows that claimant was

hospitalized in September, 1977, with the

diagnoses of mechanical low back syndrome with

degenerative disc disease in the lower lumbar

region, abdominal aneurysm at about the level

of L-4, diverticulosis of the sivymoid colon,

diabetes mellitus, and exogenous obesity.

(FE. #20}. Claimant responded to treatment

and was discharged in an improved condition.

‘ee. wear

Claimant was hospitalized in August,

1979, with the diagnoses of arteriosclierotic

heart disease with acute anterior wall myocar-

dial infarction and peripheral vascular dis-

ease. (Tr. 177). Claimant's condition was

improved on discharge. (Tr. 178).

Following claimant's August, 1979,

He was’ found to be disabled before August

19, 1979. The ALJ approved benefits 13

months.

His decision, based on age,

education, and work experience, was

rejected by the Appeals Council and

Supported by the Secretary.

On Judicial Review the case was

limited to 42 U.S.C-405(g).

Obviously in reviewing the record the

Secretary's decision would stand. Medical

and disability evidence at the first

hearing alone, would not show a severe

impairment, all evidence evaluated by the

second ALJ, fully supported the evidence

at the first hearing as disabling.

U.S.A. CONSTITUTION

ARTICLES OF AMENDMENT

14TH AMENDMENT

"All persons born or naturalized in

the United States and subject to_ the

jurisdiction thereof, are citizens of the

United States and of the States wherein

they reside."

My husband waS a citizen of the

United States, an individual having

"certain unalienable rights."

One of which was, to decide, without

any interference from Social Security

rule, what he would consider doing with

his property, possessions, ete., OF

anything- he was entitled to after his

death, which would include Social Security

benefits on his disability.

He worked 30 years for Frigidaire

Division, General Motors, Dayton, Ohio.

He was entitled to claim and prove an

earlier onset date of disability, at the

time his application was filed.

CONCLUSION

(1) It's evident, if his doctor had been

called, a medical report would have been

made. A solution to his problems at that

time would have been resolved.

(2) It's evident the medical term for

his condition would have been known and

understood by both.

(3) It's evident, his doctor diagnosed

an abdominal aneurysm September 1977. The

work activity on his job before retirement

would not have permitted him to work.

(4) It's evident with this knowledge the

autopsy would have been performed on the

abdominal area had his death occurred.

The autopsy was only performed on the

chest area because of circumstances

involving his illness.

(5) It's evident by the record Doctor

Williams, Radiologist, at the Cookeville

10

General Hospital, Cookeville, Tennessee

was called on April 7, 1982.

We discussed the x-ray taken in

September 1977, those things that occurred

to my husband at death, the autopsy

report, and the catheterization taken at

the Vanderbilt Hospital December 1977.

After medically considering all that

was discussed, he wrote a letter giving me

a detailed description of the x-ray and

stated, I had indicated to him my husband

had died of a ruptured aortic abdominal

aneurysm.

It's therefore evident, the only time

a claim could be made and proven on his

disability at an earlier onset date, would

have had to be at the time he _ filed his

application and before his death.

He filed his application October 2,

1979.

He received his Award Certificate

determined on the August onset date

December 14, 1979.

The remaining month and a half was

occupied with tests on his arteries and

open heart surgery at a hospital 140 miles

to and from home. He died at home January

27, 1980.

The record is indication of proof, he

was disabled from September 1977 to

January 27, 1980.

When I filed for a reconsideration on

my husband's disability February 1980,

shortly after his death, I expected his

disability to be determined on it's own

merit.

When he filed his application the

claim on it was not decided upon. He was

to decide on an earlier claim before his

disability would be determined. He was

denied this right because of the action

taken against him on his application.

12

The action was supported by the first

ALJ. His decision denied all benefits

before August 19, 1979.

On Judicial Review the U.8.

Magistrate noted the second ALJ's decision

was not supported by substantial evidence.

His conclusion supported Social Security

as taken lawful action on October 2, 1979

(date application was filed).

The U.S. District Court adopted the

U.S. Magistrate's recommended decision in

it's entirety and closed the docket file

on the Case No. C-3-82-0105.

In the U.S. Court of Appeals I

appealed as a witness on the application.

The court states: This court cannot

base it's decision ona single piece of

evidence; the record must be evaluated as

a whole.

Consequently the application has

never had a Judicial judgement made on it

13

that would determine if my husband's

rights as a citizen of the United States

were lawfully denied him.

Social Security brought the action

against him, which in turn denied him

disability benefits.

Because of this situation I find

there is not a United States Court I can

appeal this case to for justice if not the

Supreme Court of the United States.

I would therefore respectfully

request of the Supreme Court that

restitution be made.

Respectfully submitted

, Oo.

Pre Mato Le Lilt

P 7

MRS. GLADYS M. DOWELL

6200 TAYWOOD, APT. H

ENGLEWOOD, OHIO 45322

14

CONTENTS OF APPLICATION

Question:

What lilness are you filing your

disability on?

Answer:

I had a serious heart attack on

August 19th.

Question:

When did you become disabled?

Answer:

He made a statement his illness did

not disable him before August 19th.

Signature

My husband's name

and middle initial.

-15-

Copy mailed to:

Gary M. Blumenthal

Attorney for Plaintiff

1401 Talbott Tower

Dayton, Ohio 45402

Joseph E. Kane

Assistnat U. S. Attorney

John R. Fisher

Assistant U. S. Attorney

85 Marconi Blvd.

Columbus, Ohio 43215

IN THE UNITED STATED DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

FOR WESTERN DIVISION

GLADYS DOWELL, FOR

DYER P. DOWELL, DECEASED

SSN: 276-48-1714

Plaintiff,

Vs. : Case No. C-3-82-

0105

SECRETARY OF HEALTH

AND HUMAN SERVICES,

Defendant,

DECISION AND ENTRY ADOPTING REPORT

AND RECOMMENDATION OF THE UNITED

STATES MAGISTRATE IN ITS ENTIRETY;

JUDGMENT TO BE ENTERED IN FAVOR OF

DEFENDANT-SECRETARY AFFIRMING HER

DECISION THAT PLAINTIFF'S DECEDENT

WAS NOT DISABLED PRIOR TO AUGUST 19,

1979; TERMINATION ENTRY

The captioned cause came on to. be heard

upon the objections of the Plaintiff to the

Report and Recommendation of the United States

Magistrate, filed September 12, 1985 (Doc.

#11), recommending that judgment be entered in

favor of the Defendant-Secretary and affirming

her decision that Plaintiff was not disabled.

In reviewing the Secretary's decision,

-2?-

the Magistrate's task is to determine if that

decision is supported by "Substantial

evidence." 42 U.S.C. 3 405 (g). Under 28

U.S.C. $ 636 (b)(1)(C), this Court, upon

objections being made to the Magistrate's

Report, is required to make a de novo review

of those recommendations of the Report to

which objection is made. This de novo review,

in turn, requires this Court to re-examine all

the relevant evidence, previously reviewed by

the Magistrate, to determine whether the find-

ings by the Secretary are supported by

"Substantial evidence." Lashley v. Secretary

of Health and Human Services, 708 F.2d 1048,

1053 (6th Cir. 1983); Gibson v. Secretary of

Health, Ed. and Welfare, 678 F.2d 653, 654

(6th Cir. 1962).

Based upon a thorough review of the

transcript of the administrative proceedings,

the reasoning and citations of authority set

forth in the Report and Recommendation of the

United States Magistrate to which objections

-3-

have been lodged by the Plaintiff, the

reasoning and citations of authority set forth

in the Plaintiff's objections to said Report

and, finally, the arguments contained in the

memorandum filed by the Defendant in opposi-

tion to the Plaintiff's objections, it is the

opinion cf this Court that the decision of the

Secretary that Plaintiff's decedent was not

disabled prior to August 19, 1979, is sup-

ported by substantial evidence and, accord-

dingly, the Report and Recommendation of the

United States Magistrate is sustained in its

entirety. Plaintiff's decedent, himself, did

not claim a disability prior to that date

which rendered him unable to work. ‘Z.. 8;

A393, 330-°35, 211).

The only evidence which might arguably

support a finding that Plaintiff was disabled

prior to August, 1979, is the testimony of

treating physicians Drs. Perry and Jones.

However, aS pointed out by the Appeals Coun-

cil, Dr. Perry testified that he could not fix

-4-

a firm date as to when the claimant's arterial

insufficiency of his left leg reached

disabling proportions. Dr. Perry could only

"Suspect" that it was of disabling proportions

before August, 1979. The Appeals Council also

noted that although Dr. Jones testified that

the claimant was totally disabled in

September, i977; his conclusion was not

supported by the medical evidence and that Dr.

Jones' own report lacked findings indicative

of an impairment of such severity as _ to be

consistent with his conclusion.

Accordingly, based upon the aforesaid,

this Court adopts the Report and Recommenda-

tion of the United States Magistrate in its

entirety, and, in so doing, orders the Clerk

of Courts to enter judgment for the Defendant-

Secretary affirming her decision that

Plaintiff was not disabled.

The captioned cause is hereby ordered

terminated upon the docket records of the

-5-

United States District Court for the Southern

District of Ohio, Western Division, at Dayton.

WALTER H. RICE

UNITED STATES DISTRICT JUDGE

JUDGMENT IN A CIVIL CASE

SOUTHERN DISTRICT OF OHIO

UNITED STATES DISTRICT COURT

GLADYS DOWELL, FOR

DYER P. DOWELL, DECEASED

SSN: 276-48-1714

Plaintiff

vs. : Case #C-3-82-0105

SECRETARY OF HEALTH

AND HUMAN SERVICES

Defendant

JUDGE WALTER H. RICE

DECISION BY COURT

This action came to trial or hearing

before the Court with the judge (magistrate)

named above presiding. The issues have been

tried or heard and a decision has been

rendered.

IT IS ORDERED AND ADJUDGED

That the decision and entry adopting the

report and recommendation of the United Stat

Magistrate in its entirety: That the Plain-

tiff take nothing; that the judgment is enter-

ed in favor of defendant-Secretary affirming

her decision that .aintiff's decedent was not

disabled prior to August 19, 1979.

Clerk

Kenneth J. Murphy

(By) Deputy Clerk

Mary Kay Budge

Date:

12-18-85

Copies mailed to:

Gary M. Blumenthal

Attorney at Law

1401 Talbott Tower

131 North Ludlow Street

Dayton, Ohio 45402

(Counsel for Plaintiff)

Joseph E. Kane

Assistant U. S. Attorney

200 U. S. Courthouse

85 Marconi Boulevard

Columbus, Ohio 43215

(Counsel for Defendant)

CERTIFICATE OF SERVICE

I hereby certify that on this

day of July 1987, I caused to be served

required copies of this petition by

mailing them postage prepaid to:

United States Court of Appeals

Sixth Circuit

J.S. Post Office and Courthouse Bldg.

Cincinnati, Ohio 45202

Anthony W. Nyktas

United States Attorney

Southern District of Ohio

220 U.S. Post Office and Courthouse Bldg.

100 East Fifth Street

Cincinnati, Ohio 45202

Donna Morros Weinstein

Chief Council for Region V

United States Department of Health

and Human Services

300 Wacker Drive - 18th Floor

Chicago, Illinois 60606

The Solicitor General's Office

Department of Justice

Washington D.C. 20543