# Petition for Writ of Certiorari — Noel v. Bowen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1753%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 487 U.S. 1207 ## Text 7 775 —s ~~ Ar i. an | % A icv FOURL Ok 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? PREFIX PAGES: PREFIX - . ~« 1-2 Q—+ - — Leth me 3-70 - 10-11 = 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, -3- 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 -5- iain 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 -9- 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 -10< 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 @11< 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 -1a- 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. -TAa< PEE ees United States District Court Eastern District of New York — -— ow ew ow «woe oe oe oe oe © we oe ow ee ee ee oe ee or oe ow os oe oe 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 -3a- 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 -a- eee 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 -Sa- 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 -6a= —————————— 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 -74< 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 -Ja- (Suite) 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. —— 56 6. 9. 10. ™ 113 _ Clee —