Petition for Writ of Certiorari — Noel v. Bowen

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THs U:.ITED STATES

OCTOBER TERM, 1937

PETITIONER,

OTIS R. BOWE, SECRETARY OF HEALTH

AND HUMAN SERVICES,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

PAUL EMILE NOEL

PRO se

Mailing address:

646 HAST 4Oth Street

BROOKLYN, N.Y. 11203

By virtue of heart-murmur, abnormal

liver function tests, a chronic obstruc-

tive lung disease, shortness of breath,

tuber@ulasis and hepatitis, petitioner pro

se should be entitled for benefits from the

Social Security Administration and the Court

Of appeals for the Second Circuit disallowed

petitioner's brief upon technical grounds

that petitioner did not have an impairment

prescribed by the pertinent provisions of

the Social Security Act to establish a

period of disability insurance benefits and

supplemental security income benefits.

Whether petitioner pro se dies before

receiving his full rights, may the Supreme

Court of the United States direct appellate

review and due process by petitioner demands

that the decision of the appellate term for

the second circuit be vacated?

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APPENDIX

PROOF OF SERVICE

PAGES: i

ywuestion presented for

review

Prayer

Opinion below

Jurisdiction

Constitutional provisinn

involved

Statement of the case

Reason for granting the writ

Conelusion

TABLE OF AUTHORITIES

UeSe COnStitutional provisions:

U.S. Congress ( Statutes 42 U.

Sec 423 (d) (5) (A) (3B),

incorporated by 42 U.S.S. 1352c

(A) (3) (H).

Sehisler vs. Heckler, cea. 2

New york 1986, 787 2d. 76

IN THE

SUPREME COURT OF THE UNITED STATES

Petitioner,

VSe

Otis Re Bowen, Secretary of

Health and Human Services,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals for

the Second Circuit

PRAYER

The petitioner-pro se, Paul Emile Noel,

respectfully prays that a writ of certiorari

issue to review the judgment of the U.S.

Court of appeals for the second circuit

entered on December 1, 1937.

OPINION BELOW

The Court of appeals entered its

memorandum decision affirming the denial

of petitioner pro se's complaint to dismiss

on December 1, 1987 stated that the decision

of the district court's memorandum and

order dated May 19, 1987 which judgment

having been filed in the clerk's office on

May 22, and entered on May 28, 1987. A

copy of the order included the memorandun

and judgment from the U.S. District Court

is attached as appendiz 1a, 2a, 3a, +a, 5a, 6a,

and 7a. The court also denied petitioner's

petition for rehearing and suggestion for

rehearing en bane on January 14, 1988. A

copy of the order is attached as appendix 6a. —

JURISDICTION

On December 1, 1987, the court of appeals

entered judgment affirming the denial of

petitioner's complaint to dismiss his clains

(app. 1a-7a). The jurisdiction of this Court

is invoked pursuant to section 205(g) and/

=Qe

Or 1631 (c) (3) of the Social Security

Act as amended, 42 U.S.C. section +05(g)

and 1383(c) on the applications filed with

the Social Security Administration for

disability insurance and supplemental

security income benefits on August 2, 1953.

Applications were denied approximately

and on reconsideration, petitioner has

sOllicited a hearing's request to review

both applications (SSA and SSI). The

hearing has been held on November 19, 1954

before an administrative law judge with a

negative conclusion although the record

indicated that plaintiff is disabled and

unable to work. Evidence and decision in

the record which lead the administrative

law judge to consider the case de novo on

January 28, 1985 could not be acceptable

under sections 216(i) and 223, respect-

ively of the Social Security Act. Thnis

affirmation is submitted in opposition to

the decision of the administrative law :

judge when it became final and reviewed

also by the appeals Council on March 14,

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1985 which vacated its denial later on

because the decision of the judge seems to

be erroneous and was not supported by sub-

stantial evidence and it is contrary to the

lawe

CONSTITUTIONAL PROVISION INVOLVED

The congress of the United States

required the Secretary of Health &

Human Services to develop a complete

medical record and make every reasonable

effort to obtain all medical evidence

from the treating physician and puts

the burden upon a claimant to establish

entitlement to disability insurance

benefit and supplemental security

income by requiring that:" an individual

shall not be considered under a disability

unless he furnishes such medical and

other evidences of the existence thereof

as the Secretary may require"

(42 U.S.Ce. 423(d) (5) (A) (B), incorporated

by 42 U.S.C. 1382 ¢ (ay (3) (A).

STATEMENT OF THE CASE

A court's review of the administrative law

judge's decision has been requested by the

petitioner on March 21, 1985 and there, a civil

action is begining in the U.S. District Court

with hope that the judge wil! grant the plaintiff

upon evidence all benefits which he is entitled

a

because thre are some l@gical errors which

could affect the general interest of the

said proceeding under the provisions of 20

CFR4+O4.970 for Social Security Act and 20

CFR416.1470 for supplemental security income

claims under title XVI of the Act and the

right ot the U.S. District Court for Southern

of New York to enter an order of appeals

Council (app. 9a) in which the secretary of

HHS was preliminary enjoined from denying or

terminating Title II or XVI benefits on the

basis of a non-severe impairment.

By an amended memorendum and order of the

U.S. District Court judge dated July 7, 1980,

the Court remanded the case to the defendant

with hope that it may obtain a medical

assessment of the plaintiff's functional

capacity limitations from an examining

physician and determine whether plaintiff could

pertorm light and sedentary work and whether

he has any non-exertional impairment. To

comply with the demand of the U.S. district

judge, the appeals council remanded the case

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to the same administrative law judge for

further proceedings. An additional hearing

has been held on December 3, 1986 and the

administrative law judge adopted the same

previous decision with a negative conclusion

altnough the administrative record indicated

that petitioner met the special status earnings

requirements through December 31, 1986 (app. 10a)

which was issued on January 6, 1987 and, the

appeals couneil narrowly adopted the findings

and conclusions ofr tne saia administrative law

judge and this remains the final decision of the

secretary of HHS.

By letter to the court dated February 135,

1987, petitioner objected to the defrendant's

decision on remand and renewed his request for

the relier originally demanded and accordingly

derendant is directed by the court to move for

judgment on the pleadings on March 10, 1987.

This has been done by the defendant on March 29,

1987 and decision on the pleadings hag been

granted by district judge Nickerson.

Petitioner appeals from the de@@ision of the

pr

said district judge in U.S. Court of appeals

because he Was not satisfied with the

dismissal of his complaint and felt that he

is eligible for benefits at this time and

further clarification is also necessary on

tnis cause of action concerning incon-

sistencies in the medical report of Dr,

Asencio. ‘the record supports a finding that

petitioner is unable to work due to

disability begining May 1951 up today and

current functional assessment stated plain-

tiff tired easily and restricted from lifting

heavy objects, had difficulty in breathing

and restricted from excessive brisk walking

(app. 11a,12a,13a). Alternatively and under

this circumstance the court of appeals

supposed to consider the foregoing assessments

trom examining physicians and " treating

physician's rule" as set forth in SCHISLER vs.

HECKLER c.ae2 New york) 1986, 787 2de 76,

decided on April 2, 1986, which requires that

the treating physician's opinion on the subject

“90

a eee

_ Of medical disability is generally entitled

to mare weight than a doctor who has seen

the claimant once.

RKASON FOR GRANTING THE WRIT

WHERE PETITIONER PRO SE dies betore receiving

his tull rights to direct appellate review,

due process demands that the decision of the

circuit judges be vacated. A nearing on

appellant-appeilee briets filed with the clerk

ot appeals respectively on July 16 and August

24, 1987 which supposed to be held at stated

Term of the said court of appeals on November

25, 19387 has been adjourned and taken on

submission for the November 27 Term while we

were awaiting for the judgment of the panel

as constituted with Hons. William H. Timbers,

Ralph K,. Winter, and J. Daniel Mahoney, Circuit

judges. Unfortunately it has been held few

days later (copies of receipts of acknow-

ledgment on the hearing are attached as app. 14a,

15a, 16a) without an additional notice and there

appears to be a legical error which need to be

ror

corrected or redressed by the Court on the

failure of acknowledgment of the correct

date or the hearing by both parties and,

thereafter, petitioner pro se, requested a

new hearing in a petition ror rehearing filed

on December 5, 1967 because he is not satisfied

with the said judgment of the panel and frelt

that he is entitled to recover the said

proceeding and it seems also that the court of

appeals was not aware of the petitioner's

answer filed on October 20, 1987 as part of

the record on the brief for the panel to give

an appropriate judgment in this cause of action .

It would be inappropriate and inefficient use

of judicial resources to move to strike only

on the record from the Eastern District Office

of New york if the court ofr appeals could not

consider the appeal by the appellant pro se

on the merits with a complete set of relevant

paper before it. (A copy of it is attached as

app.17a). The medical report contained in the

appendix 17a was based only on the same record

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ae

On appeal although new chest X-ray # 34354

with Dr. Goodman II reveals: "increased

bronchovascular markings; there are dense

fibrotic lesions in the left apex and based

also on the review of all medical records

from 1981 up today, he found on February 12,

1987 that Petitioner-ts suffering from the

following internal medical condition: chronic

obstructive lung disease of 25% + a separate

tubercula@sis pulmonary disability ef 20% of

total and a chronic active hepatitis with

an internal medical disability of 20% of

total."

CONC UISION

For all the foregoing reasons, petitioner,

Paul E, Noel, respectfully requests that a

writ of certiorari issue to review the

judgment of the appellate term for the

second circuit and vacate it upon technical

grounds unrelated to merits by eliminating

all problems arising from distinctions

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a ie “

between the remedies in granting relief

where petitioner shows that he is

entitled to some forms of relief

Originally demanded for disability

insurance benefits and supplemental

security in come under the SOCIAL

SECURITY ACT.

DATED: Brooklyn, New york

April 26, 1986

A\

Respectfully tted,

me /

PAUL/EMILE NOEL

PETITIONER PRO se

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APPENDIX A

United States “ourt of Appeals

For the Second “ircuit

At a stated Term of the United States Court

of Appeals for the Second “ircuit, held at the

United States Courthouse in the City of New York

on the 1st day of december 1987

Present:

Honorables: William H. Timbers, Ralph K. Winter,

J. Daniel Mahoney, Circuit Judges.

Paul Emile Noel,

Plaintiff-Appellant, ORD: 87-6448

Ve RNY 5.cv.740a9

NICK@RSON

Otis R. Bowen, Secretary, Health &

Human services,

Defendant-Avpellee,.

Appeal from the United States District “ourt

for the Eastern District of New York,

This cause came on to be heard on the transcerint

of record from the United States District Court for

the Eastern District of New York, and was submitted.

On Consideration Whereof, it is now hereby ordere

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adjudged, and decreed that the judgment of

said District “ourt be and it hereby is

affirmed.

The decision of the district “ourt is

affirmed for substantially the reasons stated

in the district Court’s Memorandum and Order

dated May 19, 1987.

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PEE ees

United States District Court

Eastern District of New York

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Paul Emile Noel,

Plaintiff,

85 © 1992

MEMORANDIM AND ORN™R

against

Secretary of Health and 4Yuman Services

Defendant

Paul Emile Noel

Brooklyn, New York

plaintiff pro se

ANDR=W J. MALONEY, United States Attorney

(Jeffrey A. Coryell, Assistant: United

States Attorney, of Counsel)

Brooklyn, New York for the defendant

NICKERSON, District Judge

Plaintiff brought this action under 42 1.S.°.

4O5 (g) and 1383 (c) (3) to review a deternine-

tion of defendant that plaintiff is not entitled

to disabil«ty insurance benefits and Supplemental

Security Income benefits. The case is here for

the second time. By amended memorandum and oréer

dated July 7, 1986 this court remanded the case

so that defendant might obtain a medical assess-

ment of p’aintiff's functional limitations from

an examining physician and determine whether

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BEST AVAILABLE COPY

Plaintiff could perform light or sedentary

work and whether he has any nonexertional

impairments. Familiarity with that memo-

randum and order is assumed.

The matter was remanded to an Administrotiv

Law Judge for further proceedihgs, and he he'd

a supplemental hearing and thereafter issued a

recommended decision that plaintiff was not

under a disabi'ity. The anpeals “ouncil modifi

the decision but came to the same conclusion.

The appeals “Touncil made the fo’lowing form:

findings. Plaintiff has not engage@ in subatar

tial gainful activity since March 30, 1981. T™

medical evidence establishes he has of pu’mona:

tuberculosis, 2/6 ejection heart murmur, mild

restrictive lung disease secondary to congenit:

absence of the right pectoral muscles, and

history of minimal liver dysfunction. The

medical evidence also establishes that he does

not have an impairment or combination of im-

pairments listed in or medically eaual to one

listed in Appendix 1, subpart P, Regulations ~

4 is precluded from heavy lifting and extensiv

brisk walking and is unable to perform his pas

relevant medium to heavy work as a paver baler

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He has the residual functional eapacity to

perform the full range of light work. Yeis

36 years old, is 9 cpllege graduate, with

several published articles in both "nglish and

french. In view of his age and residual

functional capacity, the issue of transferabitityv

of work skill is not material. Under section

404.1569 of Regulations No. 4 and section 416.969

of Regulations No. 16, and Rules 202.0, 202.91 and

202.22 of Table No. 2 of Appendix, Subvart P,

, -Regulations No. 4, he is not disabled.

i . The Court has examined the record with care

and concludes that the seat ation of the Appeals

Council accurately summarizes the evidence of

record. In its decision the appeals council

found that plaintiff was able to perform light

work, which includes the abilitg to do sedentary

work. There were no nonexertional imvairments

Which would impose limitations.

While Dr. Marino Mesidor, of the “ast “New York

Neighborhood Family Care Center, stated in a

letter dated March 8, 1985 that plaintiff was”

‘ unable to work", Dr. Mesidor did not adhere to

that conclusion in a medical report dated

September 5, 1986. In his then " current

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functional assessment" Dr. Mesidor said that

plaintiff tired easily, was restricted from

lifting heavy objects, had difficulty in

breathing, and was restricted from excessive

brisk walking.

On November 7, 1986 Dr *liseo Asencio, of

Kingswood Medical Group, performed a consultetive

examination. His impression was that plaintiff

was well-develeped, well-nourished, status post

pulmonary tuberculosis, treated back in 1984-85,

with a history of heart murmur and abnormal live:

function tests. He found the physical examinati:

to be "complete normal”.

There is substantial evidence to supvort the

decision of the defendant, and defendant's motio:

for judgment on the pleadings is granted. The

complaint is dismissed. So ordered.

Dated: Brooklyn, New York

BEST AVAILABLE COPY

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF N&W YORK

Paul Emile Noel, JUDGMENT

Plaintiff, “V 85 1092 (FAN)

against

Secretary of Health and Yuman Services

Defendant.

—— on ee me ee ee ee Se ce ee me oe Fee eee eee 2e2ee=

A memorandum and order of Honorable "ugene

H. Nickerson, United States District Judge,

having been filed on May 22, +987, granting

the defendant's motion for judgment on the

pleadings; affirming the decision of the

Secretary of Health and Human Services, and

dismissing the complaint, it is

ORDERED “ND ADJUBDGED that the plaintiff take

nothing of the defendant; that the decision of

the Secretary of health and human services is

affirmed and the complaint is hereby dismissed.

ROREST SC, AST NaMANN

Clerk of Court

Dated: Brooklyn, New York

May 27, 1987

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UNITED STATES COURT OF APPFALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States “ourt

of Appeals for the Second “Circuit, held at the

United States Courthouse in the “ity of New York,

om 14th day of — 1988.

Present: Hon. William H. Timbers

Hon. Ralph K. Winter,

Hon. J. Daniel Mahoney.

CIRCVULT JUNGES

Paul Emile Noel,

Plaintiff-Appellant, |

eer ee it 87-6148

Otis R. Bowen, Secretary of HHS

Defendant-Appellee

A petition for rehearing having been filed

herein by Plaintiff-Appellant, Paul "mile Noel,

pro se, upon consideration thereof, it is ORN™Pe™

that said petition be and it hereby is DENTS,

BEST AVAILABLE COPY (iESsonanaias

DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATTON

OTFICE OF HEARINGS AND APPRALS

ORDER OF APPEALS COUNCIL

REMANDING CASE TO ADMININISTRATIVE TAW JUDG

of Claim for

a Period of disability,

PAUL NOEL, Claimant Disability Insurance

Benefits and Supple-

mental Security income

S.S. No. 086-50-2246

On July 25, 1984, the United States District Tourt

for the Southern District of “ew York entered an

order in which the Secretary of Health and Human

Services was preliminary enjoined from denying or

terminating title II or title XVI benefits on the

basis of a nonsevere impairment. The “ourt

certified a statewide class in the State of “ew Yor

in which the Secretary was directed to redetermine

entitlement to benefits for class members without

application of the nonsevere threshold.

This case is before the Appeals Council on a

request for review filed on July 5, 1984. The

Claim was denied on the basis that the Claimant

had a nonsevere impairment . Ry notice attached

hereto the claiment is advised of his standing as

—

&@ class member. Therefore, based on the order

of the court the claimant is entitled to another

hearing in his case,

Accordingly, this case is remanded to an

Administrative Law Judge to schedule a hearing

within 30 days from the date of this order,

unless the claimant's fully favorable entit’ emer

can be determined from the record. The Adminis-

trative Law Judge may take any action not in-

consistent with this order of remand.

APPEATS CONUN*IT

BURTON BERKL"®Y

DEPUTY CHAIRMAN

DATED: September 12, 198%

BEST AVAILABLE COPY

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FACT FINDINGS OF THE APPEALS COUNCIL

After careful consideration of the entire record

the appeals “ouncil issues the following findings:

1.

26

30

The Claimant met the special earnings

requirements of the Act on March 30, 1981,

the date the claimant stated he became unable

to work, and contirmed to meet them through

December 31, 1986.

The Claimant — engaged in substantia)

gainful activity since March 30, 19°14.

The medical evidence establishes that the

claimant has a nd story of pulmonary tuber-uldsis

2/6 ejection heart murqur, mild restrictive

lung disease secondary to congenital absence

of the right pectoral muscles, and hi story

of minimal liver dysfunction, but that he does

not have an impairment or combination of

impairments listed in, of medically ecual to

one listed in Appendix 1, Subpart P, Regu ations

“No. &,

a

The Claimant's subjective assertions of severe

functional restriction are inconsistent with

his testimony and the weight of the medica’

record.

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56

6.

9.

10.

™ 113

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The Claimant is precluded from heavy

lifting and extensive brisk walking.

The Claimant is unable to perform his past

relevant medium to heavy work as a paver

baler.

The Claimant has the residual functional

capacity to perform the full range of light

work (20 CFR 404.1567 and 416.967).

The Claimant is 36 years old, which is

defined as younger individual (90 “7 Lok,

1563 and 416,963). |

The Claimant is a college graduate, with

several published articles in both french

and english (20 CPR 404.1564 and 416,064),

In view of the claimant's age and residus’

functional capacity, the issue of transfer.

ability of work skills is not material.

Section 404, 1569 of Regulations No, & and

section 416.969 of regulations No. 16, and

Rules 202.20, 202.21 amd 202,22 of Table *

2 of Appendix 2, Subpart P, Regulations bal)

4, direct a conclusion that, considering t

claimant's residual functional capacity, °

education, and work experience, he is not

disabled.

~“—— (Suite)

UNITED STATES OF AMERICA

DEPARTMENT OF HEALTH AND HIMAN S¥RVICHS

SOCIAL SITURITY ADMINISTRATTON

OFFICE OF HEARINGS AND APPTATS

SUBPENA

IN THE CASE OF PAUL EB, NOR?

Claim For

Period of disability,

disability insurance PFene*its

and Supplemental Security

Income. S.S. No. 086-590-226 |

To: East New York Family “are Clinic

2094 Pitkin Aveme

Brooklyn, N.Y. 11207

You are hereby reauired to produce in the above

entitled case at a hearing to be conducted by:

I, Bradford Spielman, an Administrative ‘aw

Judge of the Office of Hearings and Appeals. The

hearing will be held on the 7th day of August 19°6

at 10.00 AM, Second Fleor of the Office of "esring

and appeal at 189 Montague Street, Rrooklyn, ™.Y.

Please Send medical records from Jamary 1981 -

To present.

Secretary of Health and Puman Servi

By: I Bradford Spielman

Administrative Law Judge

189 Montague Street

Brooklyn, N.Y. 11201

Dated: July 24, 19°6

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HHS, SSA

OFFICE OF HEARINGS AND APPEALS

189 Montague Street, 2d Flr.

Brooklyn, New York 11201 ©

PSYCHIATRIC MEDICAL R¥PORT

Claimant: Paul Emile Noel A/N 0286-50-27 36

D/O/B: 10-8-50 Mrst Seen: 8/8/84 Tast seen 2/27/

Please supply the following information from your

Records:

‘1. Dates of treatment: from 8/8/84 to 8/27/86,

frequency per 2 to 3 months. |

2. Presenting problems: ( Including history, finding

on initial comprehensive mental status examinatic

APA diagnosis. ):

Pulmonary tuberculosis with thoracic deformity

right side of chest, pulmonary function tests

done 2/7/85 indicate normal airway mechanics

and mild restrictive lung disease, Patient

complains of pain on deep inhalation.

Echocardiogram of 11/84 shows questionsble

fluttering of the mitral valve, grade 2/6

systolic murmur, palpable liver, liver scan:

12/85 shows mild diffuse patchy irregularity

of the hepatic uptake distribution. Secondary

to diffuse hepatocellular disease and dys-

function.

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3. Clinical course: (Including type of treat-

ment, names and dosage of all medications.

INH 300mg./ Parazydamide 2.5

4, Current functional assessment (Please descr

the following and give examples; a’ Persona

Habits:

- Patient tires easily

- Restricted from lifting heavy objects.

- Difficulty in breathing

- Excessive brisk walking restricted.

be Daily activity - WRITING

Ce Manner of relating to others - GOOD

5. Do you consider this claimant competent to

manage funds? - YES

Signature: Marino Mesidor Title: MD

Address: EAST NEW YORK NFCC Phones (718)-495~-7

2094 Pitkin Avenue

Brooklyn, N.Y. 11207

BEST AVAILABLE COPY

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;

gna mren Se

UNITED STATES COURT OF APPRAIS

SECOND CIRCUIT

UNITED STATES COURTHOUSE

FOLEY SQUARE

New York 106067

The Firm Date on which your appeal will be

heard is indicated below.

FIRM NOTICE Calendar No, 232

Date of Hearing: Wed. Nov. 25, 1°87

nee e Docket No, 87-A1L2

Calendar “alls: 9:20AM

RE: Paul Mmile Noel v. HHS

Oral argument time has been alloted as

follows: 5 minutes per side

Roost pt of date of argument is acknow!.edged.

Paul Emile Noel

Appellant/Counsel pro se

Mailing address: 648 East 40th Street

ae Brooklyn, N.Y 11203

representing: HIMSELF

Elaine B, Goldsmith

Clerk

- e«tha-

EOL, LLL TRL R LLL LL LTE LLL LE ALLO DAE EN TO nee

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

UNITED STATES COURTHOUSE

FOLEY SQUARE

NEW YORK 10007

The firm date on which your appeal will-be heard

is indicated below.

FIRM NOTICE *** REVISED ORAT, ARGUMENT TIME

Date of hearing: Nov. 25, 1897 -Calendar No. °32

RE: Paul Emile Noel v. AHS Doeket No, 87-6148

Calendar call: 9,7

Ore. argument time has been alloted as follows:

NOEL = On submission

HHS = 5 mimtes

Receipt of date of argument is acknowledged:

Paul Emile Noel, Appellant/pro se on

submission

Mailing address: 648 East 40th Street

Brooklyn, N.Y. 11203,

representing HIMSELF

Elaine B. Goldsmith

Clerk

BEST AVAILABLE COPY

<15a-

UMITED STATES COURT OF APPRATS

SMHOND CIROVIT

UNITED STATES COURTHOTS™

FOLEY SOUAR®

NEW YORK 10007

The firm date on which your appeal will be heard

is indicated below. .

FIRM NOTICE *** SECOND REVISED NOTICE

Date of hearing: Friday, Nov. 27, 1987

Calendar No. 232

RE: Noel v.

ro os Docket No, 87-6148

Calendar call: 10.90

This appeal will be taken on Submissian

Receipt of date of argument is acknowledged.

Paul Emile Noel, pro se, Appeal by both

parties will be taken on

| sumi ssion

Mailing address: 648 East 4Oth Street

Brooklyn, New York 11203,

representing HIMS"LF

Elaine B, Goldsmith

Clerk

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peepee ween

ROWLAND D GOODMAN, 2nd, MD; P.A.

201 So. LIVINGSTON AVENUE

LIVINSTON, NEW JERS"Y 07039

TELEPHONE 294-9295

REVIEW OF RECORDS, EXAMINATION TESTS, REPORT

RE: PAUL NOEL, 648 E. 4Oth St; Brooklyn, N.Y.

EXAMINATION DATE: 2/12/87 —

COMPLAINTS: Mr, NOEL is complaining of courhine

shortness of breath which is worse on exertion,

chest pain, wheezing and expectoration.

MEDICAL HISTORY: TB - 1981

INDUSTRIAT, HISTORY: The patient was employed as

Machine Operator for Heller and Usdan, Ine. for

8 years until 3/81. In his work he was exnosed

to dust, smoke, dirt, chemicals and noxious fume

No mask was worn. He eventually develoned TR, ¥e

is now unemployed.

m MEDICAL, RETORNS: Tiver function test dated 4/29.

© show abnormalities of the liver enzymes; a live:

Ee scan 12/28/85 showed mild diffuse henatorellul 2:

[)) disease and dysfunction. M&xtensive other meric:

es records are reviewed, none of these show that t

o) patient ever had a positive smerr or culture fo

73, but his x-rays did show cavitary lesions in

|) the left upper lobe. He was treated with INT 4

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1981; M. Krinsky, M.D., 8/25/85 confirming

above.

EXAMINATION: Physical Examination reveals the

following significant positive findings: age,

36; height, 71, weight, 193 lbs.3 BP, 166/88,

There is congenital flattening of the right

anterior chest wall. The lungs show generalized

prolongation of expiration. Pulmonary function

test were not done because of recent TB history.

Chest x-ray - #34354 - increased-bronchovascular

markings; there are dense.fibrotic lesions in

the left apex.

CONCLUSION: On the basis of a review of the above

it is my opinion that he is suffering from the

following internal medical condition: chronie

obstructive pulmonary disease. His pulmonary

disability is 25% of total.

Patient also has tuberculosis pulmonary moderately

advanced inactive, which he has a separate pulmon-

ary disability of 20% of total. In my opinien this

patient had pre-existing dormant TB which became

aggravated and accelerated as a result of the

exposure described above. This became active as

shown by x-ray although sputum tests were never

-t7a- (Suite)

———

sa

positive; he was treated however for this

condition.

He also has chronic active hepatitis with

an internal medical disability of 20% of

total; because of the long tite being delayed

between the receiving of the Isoniazid and

‘the manifestation of this condition, it is

Only a possibility that it may be related to

medication given for treatment for his work

related TB.

R.D. Goodman, M.D.

/oy

Schwartz -

Goldstein, Ballen, O'Rourke & Wildstein.

-17a- (Suite 2°)

IN THE

SUPREME COURT OF THE UNITED STATES

Paul Emile Noel,

Petitioner

VS.

Otis R. Bowen, Secretary of HHS

PROOF OF STRVTTCR

State of New York)

County of Kings ) S.S.:?

Petitioner, Paul Fmile Noel, after being duly

sworn, disposes and says that pursuant to Rule 2%.

4(a) of this Court he served the within petition

for writ of certiorari on counsel for resvonident

by enclosing as requested by the clerk three (3)

copies of the corrected petition and apvendices

thereof in an envelope, first class postage

prepaid, addressed to: Solicitor General of the

United States, Department of Justice, Washington,

D.C. 20530, and depositing same in the United

States mails at Brooklyn, N.Y. on

Subseribed and sworn to

Before me this 1 of M QR py

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LA |/ oe gant” 44

” Bey

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