Petition for Writ of Certiorari — Wittner v. Barnhart

Supreme Court, U.S.

rIiLe oO

CASE NUMBOBA216NOV 5 2003

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

LAURA B. WITTNER

Petitioner

JO ANNE B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY

On Petition For Writ of Certiorari

To The Fifth Circuit Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Laura B. Wittner

Pro se

12118 Scottsdale Drive

Stafford, Texas 77477

(281) 879-0459

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CASES AND STATUTES

OPINIONS BELOW

JURISDICTION

_ CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF CASE

REASONS FOR GRANTING WRIT.

CONCLUSION

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

oe e668

QUESTIONS PRESENTED

1. THE CATEGORICAL REJECTION OF DISABILITY CLAIMS

IS CONTRARY TO AND INCONSISTENT WITH THE .

~ LANGUAGE, INTENT AND SCOPE OF THE SOCIAL

SECURITY ACT.

2. THE DECISIONS BELOW CONFLICT WITH DECISIONS

FROM THIS COURT, OTHER COURTS OF APPEAL AND

THE FIFTH CIRCUIT'S OWN DECISIONS RELATIVE TO

SIMILAR DISABILITY CLAIMS UNDER THE SOCIAL

SECURITY ACT.

3. THE PROCEDURES AND STANDARDS USED BY THE

COMMISSIONER, ADMINISTRATIVE LAW JUDGES AND

LOWER COURTS IN DECIDING DISABILITY CLAIMS

UNDER THE SOCIAL SECURITY ACT ARE LACKING IN

DUE PROCESS AND EQUAL PROTECTION RIGHTS

UNDER THE UNITED STATES CONSTITUTION.

TABLE OF CASES

Page

Barnhart v. Walton, 535 U.S. 212 , 122 S.Ct.1265 . 6

152 L.Ed.2d (2002)

Bowen v. Yuckert, 482 U.S..137, 107 S.Ct. 2287, 6

96 L.Ed.2d 119 (1987)

Bowling v. Shalala, 36 F.3d 431 (Sth Cir. 1994) 6

DePaepe v. Richardson, 464 F.2d 92 (5th. Cir. 1972) 6

Dixon v. Heckler, 811 F.2d 506 (10th Cir. 1987) 6

Faerga v. Richardson, 500 F.2d 309 (Sth Cir. 1974) 6

Flatford v. Chater, 93 F.3d 1296 (6th Cir. 1996),

cert. denied 420 U.S.931. 95 S.Ct. 1133, 43 L.Ed2d 403 (1973) 8

Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct.

1O11, 25 L.Ed2d 287 (1970) 8

Gunnels v. Bowen, 867 F.2d 1121 (8th Cir. 1989) 7

Heckler v. Campbell, 461 U.S. 458, 103 S.Ct.1952 6

Holland v. Heckler, 764 F.2d 1560 (11th Cir. 1985) 9

Likes v. Callahan, 112 F3d 189 (Sth Cir. 1997) 7

Loya v. Heckler, 707 F.2d 211 (Sth Cir. 1983) 7

MacGregor v. Bowen, 786 F.2d 1050 (11th Cir. 1986) ,

Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S.Ct.

1610, 64 L.Ed2d 182 (1980) 5

Mathews v. Eldridge, 424.U.S. 319, 96

S.Ct. 893, 47 L.Ed2d 19 (1976) 8

il

McCruter v. Bowen, 791 F.2d 1544 (11th Cir. 1986)

Owen v. Heckler, 770 F.2d 1276 (Sth Cir. 1985)

Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420,

28 L.Ed2d 842 (1971)

Scharlow v. Schweiker, 655 F.2d 645 (Sth Cir. 1981)

Scott v. Heckler, 770 F.2d 482 (Sth Cir. 1985)

Sullivan v. Zebely, 493 U.S. 521, 110 S.Ct. 885,

107 L.Ed2d 967 (1990)

Universal Camera Corp. v. National L.R. Bd., 340 U.S. 474,

71 S.Ct. 456, 95 L.Ed2d 456.

Valley v. Rapides Parish School Bd., 118 F.3d 1047

(Sth Cir. 1997)

Walton v. Apfel, 235 F.3d 184 (4th Cir.2000)

Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456,

43 L.Ed2d 712 (1975)

ili

28 U.S.C.A. Sec. 1254(1)

42 U.S.C.A. Sec. 421(k)

U.S.C.A. Const. Amend. 5

U.S.C.A. Const. Amend. 6

U.S.C.A. Const. Amend 14

STATUTES

1V

4b

4b

PETITION FOR WRIT OF CERTIORARI

Laura B. Wittner, pro se Petitioner, respectfully petitions for

a writ of certiorari to review the judgment of the United States

Court of Appeals Fifth Circuit denying her Social Security benefits

for disability.

OPINIONS BELOW

The decisions of the Court of Appeals are unreported. The

initial judgment was dated June 12, 2003 and the order denying a

rehearing dated August 8, 2003. See Appendix "A".

JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C.A. Sec.

1254(1).

Jurisdiction in the Court of Appeals was based on a de novo

review of the District Court judgment and Administrative Law

Judge denial of disability benefits under the Social Security Act.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The following constitutional and statutory provisions are

involved in this petition:

28 U.S.C.A. Sec 1254(1), 42 U.S.C.A. Sec 421(k), U.S.C.A.

Constitutional Amendments 5, 6 and 14.

STATEMENT OF THE CASE

~ This is an appeal from the denial of disability benefits under

the

Social Security Act at the administrative level. On appeal the

District Court granted summary judgment affirming the denial.

Appeal was taken to the Fifth Circuit Court of Appeals which

affirmed the lower court decision. A rehearing was sought and

denied. From these actions this petition for a writ of certiorari is

brought before this court.

The premise upon which the above rulings were made was

that Petitioner did not meet her burden of proof to show a severe

impairment during her insured status that prevented her from

continuing in her job.

The genesis of this case was in January 1980 when Petitioner

was, taken from her place of employment in an unconscious state to

a hospital. Subsequently she tried to continue in her job as

exchange accounting supervisor and department manager in an oil

company. Due to increasing severe health problems she was

compelled to 1ieave her employment. She returned briefly for one

month at the enticement of her employer only to leave permanently

in 1982. She has not worked a day since in any job and is now a

total care invalid due to an incapaciting stroke.

Beginning 1980 and extending through the end of her insured

status in December 1987 and beyond the Petitioner had the

following medical conditions: Continued syncope and near syncope

episodes, arrhythmia, high blood pressure, heart palpitations, chest

pounding, crushing chest pain, left arm and hand numbness, mitral

valve disease, ringing in ears, feeling tired and light headed,

shortness of breath, nausea, heart skipping and jumping, bad head

aches, pedal edema, finger swelling, resting ECG abnormality,

inability to complete stress testing for heart problems due to

dizziness, severe spinal pain due to degenerative disk disease,

increased difficulty walking and pain in her left surgically repaired

knee. The uncontroverted evidence of these conditions exist in the

medical records from two hospitals, statements Petitioner and her

2

husband gave to the Social Security Administration and their

respective testimony before the ALJ, who did not find any of such

evidence to not be credible. Doctors reviewing the medical records

for Commissioner found Petitioner to have palpitations, syncope

and arrhythmia. Petitioner also suffered from job stress.

Prior to leaving the work force in 1982 Petitioner was

advised by doctors that due to her heart and high blood pressure

conditions she should remove herself from stressful situations or

these conditions could cause a stroke, heart attack or death.

Petitioner maintained in the lower courts that the

uncontroverted and unrebutted medical evidence in the record as a

whole constituted substantial evidence of severe impairments,

which met or equaled the listings under the Act, and she was

therefore entitled to disability benefits. Petitioner had a 20 year

work history. It was only after her incapaciting stroke in 1997 did

she decide to file for disability. Petitioner's position was that simply

because she did not rush and file for disability at the earliest

possible time did not mean she did not have the medical

impairments she claims now nor should such delay be held against

her. The record reveals that it was her intention to try and reenter

the work force and even returned to school and took a college

course to upgrade her computer skills in 1992 and unsuccessfully

sought employment.

Neither the ALJ nor any court reviewing the record on

appeal gave any reason for disregarding the plethoric medical

evidence before them of severe disability and impairments but

simply concluded there was no severe condition. The record as a

whole shows substantial evidence of disability and there was nc

evidence, much less substantial evidence, to support their

contentions.

As set out in the filings in the lower courts Petitioner is

proceeding pro se not by choice but out of necessity and this issue

is discussed later herein.

This case in now five years old and Petitioner has been

a ey ee es a

without the disability benefits to which she was entitled and such

loss is a substantial loss to the prejudice of Petitioner.

It was, and is, Petitioner's position that the policies, practices,

procedures and standards applied in processing her claim and

appeals and arriving at the decisions made were improperly done.

REASONS FOR GRANTING THE WRIT

THE CATEGORICAL REJECTION OF

DISABILITY CLAIMS IS CONTRARY TO AND

INCONSISTENT WITH THE LANGUAGE,

INTENT AND SCOPE OF THE SOCIAL

SECURITY ACT AND DECIDED CASE LAW.

Social Security is a national program whereby enrolled wage

earners must pay, under penalty of law, into the system at a uniform

rate. Under the Social Security Act, 42 U.S.C.A. Section 421(k) it

is mandated that the Act be uniformly applied. Disability

determinations must therefore be uniform nation wide.

At the time Petitioner's claim was considered at the

administrative level in the Commissioner's Bellaire, Texas office

thousands of claimants were having extreme difficulty in obtaining

approval of their disability claims. Petitioner's claim was denied at

this office. |

The Court can take judicial notice of the fact that a series of

investigative articles appeared in the Houston Chronicle newspaper

in 2001 and 2002 regarding the problems with the claims process in

this office and elsewhere in Texas. Copies of some of such articles

were presented to the lower courts.

As a result of these articles a bipartisan group of area

Congressional leaders convened a public hearing attended by the

4

Commissioner, who later admitted publicly to problems in the

claims process and promised to take corrective action. It was

subsequently reported that there had been a dramatic increase in the

approval rate of such claims. Allegations were made in these

articles that the Administrative Law Judges were biased and

prejudiced against disability claimants.

A fair trial or hearing before a fair tribunal is a basic

requirement of due process. Withrow v. Larkin, 421 U.S. 35, 95

S.Ct. 1456, 43 L.Ed2d 712 (1975), Valley v. Rapides Parish School

Bd., 118 F.3d 1047(Sth Cir. 1997).

Wholesale denials of thousands of disability claims in one

office is some indication that the decision making process was

different from that in the rest of the country.

- If the policies, practices, procedures and standards used in

determining disability claims is not uniform it violates a claimant's

right to due process and equal protection under the law. Procedural

due process was discussed in this Court's opinion in Marshall v.

Jerrico, Inc., 446 U.S. 238, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980).

The manner and methods at which the decisions below were

reached at all levels were improper. The policies, practices,

procedures and standards applied were in violation of the Social

Security Act, statutes, decided case law and basic fairness. A policy

of nonacquiescence was followed at all levels. These actions caused

substantial harm to Petitioner, and other claimants at the time, by

resulting in a denial of disability claims and the benefits to which

they were entitled. It violated the due process and equal protection

rights of such claimants.

There were two standards at work. The one existing prior to

the corrective action taken by the Commissioner to curb the abuses

in the Bellaire office in deciding disability claims and the one

subsequently applied. The Commissioner took no action on or

reviewed those claims denied prior to her corrective action. Her

action overall resulted in a dual system of disability determination

prohibited under the Act.

ETERS TRL RRL TT LIE IES ELITE LS IO TELL ADEE LEE LI BIE IE IRE

THE DECISIONS BELOW CONFLICT WITH

DFCISIONS FROM THIS COURT, OTHER COURTS

OF APPEAL AND THE FIFTH CIRCUIT'S ON

DECISIONS RELATIVE TO DISABILITY CLAIMS

UNDER THE SOCIAL SECURITY ACT.

DISABILITY: Disability was recently defined by the Court

in Barnhart v. Walton, 535 U.S. 212, 122 S. Ct.1265, 152 if

L.Ed2d330 (2002), Walton v. Apfel, 235 F.3d 184 (4th Cir. 2000).

Record evidence shows Petitioner to have met this requirement.

SEVERITY REGULATION: This Court has addressed the

severity regulation and its application in Bowen v. Yuckert, 482

U.S. 137, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). Accordingly, if

the record evidence shows a severe medically determined

impairment(s) or combination thereof it is not proper to treat the

case as a "de minimis" case. "Severity" must be measured in terms

of its effect upon the ability to work and there are standards to be

followed in reaching a decision. McCruter v. Bowen, 791 F.2d

1544 (11th Cir. 1986). Cardiovascular problems which can cause

stroke, heart attack or death are more than a slight abnormality.

DUTY OF INQUIRY: An ALJ has an obligation to faithfully

perform his duty of inquiry. Heckler v. Campbell, 461 U.S.458,103

S.Ct.1952,76 L.Ed2d 66(1983). When a claimant is unrepresented

by counsel he has a duty to "scrupulously and conscientiously

probe into, inquire of, and explore all the relevant facts." Faerga v.

Richardson, 500 F.2d 309 (Sth Cir. 1974),cert. denied 420 U.S.

931, 95 S. Ct. 1133, 43 L. Ed.2d 403 (1973), Bowling v. Shalala,

36 F.3d 431 (Sth Cir. 1994). This duty of inquiry extends to the

District Court. Dixon v. Heckler, 811 F.2d 506 (10th Cir. 1987). :

BURDEN OF PROOF AND PRIMA FACIE CASE:

Elements of proof are (1) objective medical facts from hospital

records, (2) diagnoses and opinions of treating doctors, and (3)

claimants subjective evidence of impairments and pain. DePaepe v.

Richardson, 464 F.2d 92 (Sth Cir. 1972),Owen v. Heckler, 770 F.2d

1276 (Sth Cir. 1985).Petitioner met this burden of proof.

6

CREDIBILITY: Before an ALJ can disregard evidence

before him he must make a finding that such evidence is not

believable. Scharlow v. Schweiker, 655 F.2d 645 (5th Cir. 1981).

MEDICAL OPINIONS: Before disregarding uncontroverted

findings and opinions of treating doctors an ALJ must state good

cause for so doing and failure to properly refute such findings and ~

opinions results in them having to be accepted as a matter of law.

MacGregor v. Bowen, 786 F.2d 1050 (11th Cir. 1986), Loya v.

Heckler, 707 F.2d 211 (Sth Cir. 1983), Reddic v. Chater, 157 F.3d

715 (9th Cir. 1998).

RETROSPECTIVE MEDICAL RECORDS: ALJ must

properly consider and evaluate retrospective medical evidence as it

relates to impairments existing during the insured status. Likes v.

Callahan, 112 F3d 189 (Sth Cir. 1997).

COMBINATION OF IMPAIRMENTS: ALJ has a duty to

make explicit findings related to combined impairments and effect

on ability to work. Scott v. eckler, 770 F.2d 482 (Sth Cir. 1985).

LISTINGS FOR DISABILITY: Listings in the Social

Security Regulations contain only the most frequently diagnosed

impairments and are nor exhaustive. Sullivan v. Zebely, 493 U.S.

521, 110 S. Cr. 885, 107 L.Ed2d 967 (1990).

JOB STRESS: ALJ has a duty to fully develop the record as

it relates to a complaint of job stress, the effect it has on ability to

work and make findings. Gunnels v. Bowen, 867 F. 2d 1121 (8th

Cir. 1989).

In arriving at their respective decisions the ALJ and lower

courts disregarded the legal concepts stated in the above cases,

employed improper practices and standards in reaching their

decisions. Such action is a violation of due process and equal

protection-right based upon the manner in which the decisions were

made. There was a misapplication of the severity regulation

7

addressed above and the arbitrary stopping of the evaluation

process at step two when there is substantial medical evidence

before an ALJ conflicts with the duty of inquiry.

The Court now has an opportunity to resolve any conflicts in

the decisions from this Court, other Courts of Appeals and rules

and regulations under the Social Security Act and in a clear opinion

~ establish a true national policy to be applied in disability cases.

THE PROCEDURES AND STANDARDS USED BY

THE COMMISSIONER, ADMINISTRATIVE LAW

JUDGE AND LOWER COURTS IN DECIDING

DISABILITY CLAIMS UNDER THE SOCIAL

SECURITY ACT ARE LACKING IN DUE PROCESS

AND EQUAL PROTECTION GUARANTEED UNDER

THE UNITED STATES CONSTITUTION.

A claim for disability benefits triggers due process protection.

Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed2d 19

(1976).

Factors to consider relating to due process protection are set

forth in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed2d

287 (1970).

Substantial evidence is determined by reviewing the whole

record. Universal Camera Corp. v. National L.R. Bd., 340 U.S. 474,

71S. Ct. 456, 95 L.Ed. 456 (1951).

Due process requires that a social security hearing be "full

and fair." Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28

L.Ed2d 842(1971).

A claimant has a property right and interest in a disability

claim. Flatford v. Chater, 93 F.3d 1296 (6th Cir. 1996). It follows

therefore that such a claim gives rise to a colorable constitutional

claim.

Petitioner believes that the principles set forth in the above

decisions were breached in the processing of her claim in that the

policies, practices, procedures and standards applied at the

administrative and appeals level in deciding her disability claim

were improper, outside of the established case law and governing

statutes and constituted a violation of her due process and equal

protection rights. She had timely raised these constitutional

questions in the lower courts.

In addition to the administrative difficulties in the claims

process it is equally difficult to obtain a denial reversal in the

Southern District of Texas or Fifth Circuit. Record of these courts

are the best evidence of this fact. Due to these difficulties Petitioner

was unable, even with a lawyer husband, to engage competent

counsel to represent her in this matter and this inability to obtain

counsel was not due to a lack of merit of her claim but the external

factors stated. The statutory right to counsel under the Act means

nothing if a legal environment is created into which no competent

counsel desires te work.

The Supreme Court has not recognized a constitutional right

to counsel in a civil matter before an administrative agency. Lower

court authority states no such right exist. Holland v. Heckler, 764

F.2d 1560 (11th Cir. 1985). Petitioner challenges that holding and

maintains she has a right to counsel under the Fifth, Sixth, and

Fourteenth Amendments as do any other claimant for disability. If

the "state" action is such as to infringe on that right it is

unconstitutional as was the case in this instance. Due to the

difficulties discussed regarding obtaining counsel it is true

Petitioner waived her right at the hearing. Based on the facts what

occurred was a form of compulsion or coercion to proceed or not

have her claim considered. We now know from the record that this

substantially prejudiced Petitioner, and other claimants, who lost

their right to disability benefits. The ALJ did not discuss in detail,

as required, matters related to proceeding without counsel as the

opinion indicates he did.

CONCLUSION

This writ for certiorari should be granted so that this Court

can set out once and for all the appropriate standard to be applied in

deciding social security cases. This is of national importance with >

an aging population and more disabled citizens coming on line for

disability.

No further pleadings or briefs are necessary as the case was

well briefed by both sides below. Disposition therefore can be had

under Supreme Court Rule 16 and is hereby requested.

All parties entitled to notice of the filing of this writ have

been notified and evidenced by the separate filing of Proof of

Service.

Respectfully submitted,

Laura B. Wittner, Pro se

12118 Scottsdale Drive

Stafford, Texas 77477

(281) 879-0459

APPENDIX A

la

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

No. 02-21315 June 12, 2003

Charles R. Fulbruge III

Summary Calendar oooh

LAURA B. WITTNER, |

Plaintiff-Appellant,

versus 2

JO ANNE B. BARNHART,

COMMISSIONER OF SOCIAL SECURIT”,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

(H-01-CV-2746)

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges. PER

CURIAM:*

Plaintiff-Appellant Laura B. Wittner, pro se, appeals the district

court's judgment that affirmed the decision of the Commissioner of Social

Security ("Commissioner") denying disability benefits. In her unusually

able pro se brief, Wittner contends on appeal that the record evidence does

not support the decision of the Administrative Law Judge ("ALJ"). Wittner

asserts that the hearing testimony and medical records establish that she is

disabled, arguing that hypertension and pain are sufficiently disabling con-

ditions and that she meets the listing for hypertension.

Our review is limited to determining whether the Commissioner

applied the proper legal standards and whether the decision is supported by

substantial evidence on the record as a whole. Anthony v. Sullivan, 954 ‘

F.2d 289, 292 (Sth Cir. 1992). Substantial evidence is such relevant evi-

dence as a reasonable mind might accept as adequate to support a conclu-

sion. Villa v. Sullivan, 895 F.2d 1019, 1021-22 (Sth Cir. 1990). We may ?

not reweigh the evidence or try the issues de novo. Id. at 1022.

*Pursuant to STH CIR. R. 47.5, the court has determined that this

opinion should not be published and is not precedent except under the lim-

ited circumstances set forth in 5TH CIR. R. 47.5.4.

Ib

Wittner bears the burden of proving her disability by establishing

an impairment. See Wren v. Sullivan, 925 F.2d 123, 128 (Sth Cir. 1991).

Subjective complaints require corroboration by objective medical evidence.

Houston v. Sullivan, 895 F.2d 1012, 1016 (Sth Cir. 1989) . The disabling

nature of pain is an issue for the ALJ to decide, and the ALJ's determina-

tion is entitled to considerable deference. Chambliss v. Massanari, 269

F.3d 520, 522 (Sth Cir. 2001).

The instant record is devoid of evidence that Wittner suffered from

a disabling condition during the period of her insured status. See 42 U. S C.

§ 423 (d) (1) (A) . Wittner does not establish that she satisfied the require-

ments for a listed impairment, and the record contains no evidence that

Wittner met the listing for hypertension.

See 20 C.F.R. 404, Subpt. P, App. 1, § 4.0OA, § 4.00E2. The

AL] applied the proper legal standards, and the Commissioner's decision is

supported by substantial evidence. Anthony, 954 F.2d at 292.

The ALJ concluded that Wittner was not disabled at Step Two of

the analysis. This conclusion terminated the analysis, and the ALJ was not

required to evaluate Wittner's ability to work. Muse v. Sullivan, 925 F.2d

785, 789 (Sth Cir. 1991) ; Crouchet v. Sullivan, 885 F.2d 202, 204, 206

(Sth Cir. 1989).

Undeterred, Wittner contends that the ALJ demonstrated a predis-

position to rule against her, stating before the hearing was complete that he

would find it difficult to rule in her favor. Wittner insists that the ALJ vio-

lated her right to due process and held her to an improper standard by re-

quiring additional record evidence. She also asserts that she was denied the

right to counsel. These contentions are belied by the record.

The record shows that the ALJ explained the burden of proof that,

as the claimant, Wittner was required to bear if she was to show entitle-

ment to disability benefits. Wittner failed to produce objective medical evi-

dence for the period during which she was insured, as required to substanti-

ate her disability claims. Wittner was sufficiently informed of her right to

an attorney, after which she validly consented to proceed without represen-

tation. See Castillo v. Barnhart, 325 F.3d 550, 552 (Sth Cir. 2003). Fur-

thermore, Wittner has failed to identify any evidence that an attorney might

have adduced that would have been sufficient to change the result. See id.

The judgment of the district court is AFFIRMED.

Ic

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

~ U. S. COURT OF APPEALS

FILED

No. 02-21315 AUG 0 8 2003

CHARLES R. FULBRUGE II

CLERK \

LAURA B WITTNER |

Plaintiff - Appellant :

V.

JO ANNE B BARNHART,

COMMISSIONER OF SOCIAL SECURITY

Defendant - Appellee

Appeal from the United States District Court for the -

_ Southern District of Texas, Houston

ON PETITION FOR REHEARING

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit

Judges. PER CURIAM:

IT IS ORDERED that the petition for rehearing is DENIED.

ENTERED FOR THE COURT:

Unit Sfates a Judge

REHG-2

CLERK’S NOTE:

SEE FRAP AND LOCAL

RULES 41 FOR STAY OF

THE MANDATE

APPENDIX B

2a

28 § 1254. courts of appeals; certiorari; certified questions

Cases in the courts of appeals may be reviewed by the Supreme

Court by the following methods:

(1) By writ of certiorari granted upon the petition of any party

to any civil or criminal case, before or after rendition of

judgment or decree;

(2) By certification at any time by a court of appeals of any

: question of law in any civil or criminal case as to which

instructions are desired, and upon such certification the Su-

preme Court may give binding instructions or require the

entire record to be sent up for decision of the entire matter

in controversy.

(June 25, 1948, c. 646, 62 Stat. 928; June 27, 1988, Pub.L. 100-

352, § 2(a), (b), 102 Stat. 662.)

2b

APPENDIX C

3a

SOCIAL SECURITY 42 § 421

(k) Establishment of uniform standards for determination of

disability

(1) The Commissioner of Social Security shall establish by

regulation uniform standards which shall be applied at all

levels of determination, review, and adjudication in

determining whether individuals are under disabilities as

defined in section 416(i) or 423(d) of this title.

ee

APPENDIX D

4a

J erg ec le ec a la :

AMENDMENT V-GRAND JURY INDICTMENT FOR

CAPITAL CRIMES; DOUBLE JEOPARDY; SELF-

INCRIMINATION; DUE PROCESS OF LAW; JUST

COMPENSATION FOR PROPERTY

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand

Jury, except in cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or public danger; nor

shall any person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private property be

taken for public use, without just compensation.

AMENDMENT VI-JURY TRIAL FOR CRIMES, AND

PROCEDURAL RIGHTS

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall

have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel for his

defense.

AMENDMENT XIV-CITIZENSHIP; PRIVILEGES AMD

IMMUNITIES; DUE PROCESS; EQUAL PROTECTION;

APPORTIONMENT OF REPRESENTATION;

DISQUALIFICATION OF OFFICERS; PUBLIC DEBT;

ENFORCEMENT

Materials for the Citizenship and Privileges and Immunities

Clauses of Section 1 are set out in this volume. See the following

three volumes for materials pertaining to the Due Process and

Equal Protection Clauses of that section and Sections 2 to 5.

4b

pee 2 a a

Section 1. All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the United

“ States and of the State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the

several States according to their respective numbers, counting the

whole number of persons in each State, excluding Indians not

taxed. But when the right to vote at any election for the choice of

electors for President and Vice President of the United States,

Representatives in Congress, the Executive and Judicial officers of

a State, or the members of the Legislature thereof, is denied to any

of the male inhabitants of such State, being twenty-one years of

age, and citizens of the United States, or in any way abridged,

except for participation in rebellion, or other crime, the basis of

representation therein shall be reduced in the proportion which the |

number of such male citizens shall bear to the whole number of

male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in

Congress, or elector of President and Vice President, or hold any

office, civil or military, under the United States, or under any State,

who, having previously taken an oath, as a member of Congress, or

as an officer of the United States, or as a member of any State

legislature, or as an executive or judicial officer of any State, to

support the Constitution of the United States, shall have engaged in

insurrection or rebellion against the same, or given aid or comfort

to the enemies thereof. But Congress may by a vote of two-thirds of

each House, remove such disability.

Section 4. The validity of the public debt of the United States,

authorized by law, including debts incurred for payment of

pensions and bounties for services in suppressing insurrection or

rebellion, shall not be questioned. But neither the United States nor

any State shall assume or pay any debt or obligation incurred in aid

of insurrection or rebellion against the United States, or any claim

4c

es

for the loss or emancipation of any slave; but all such debts,

obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

4d

Appendix E

Sa

UNITED STATES COURTS

SOUTHERN DISTRICT OF TEXAS

ENTERED

SEP 182002

Michael N. Milby, Clerk of Court

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAURA B. WITTNER, §

Plaintiff, §

§

v. § CIVIL ACTION NO. H-O1-

2746

§

JO ANNE B. BARNHART, §

Commissioner of the Social §

Security Administration, | §

§

Defendant. §

MEMORANDUM & ORDER

Pending before the Court is the Motion of the Defendant, Jo Anne

B. Barnhart in her capacity as Commissioner of the Social Security

Administration (the "Commissioner"), for Summary Judgment

(Dkts. # 9, 11). The Court has considered the motions, all relevant

findings, the administrative record, and the applicable law.” For the

following reasons, the Court GRANTS summary judgment in favor

of the Commissioner.

Background

The Plaintiff, Laura B. Wittner ("Wittner"), filed this action

pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) for judicial review

of the Commissioner's unfavorable decision. Her claim for

disability insurance benefits is founded on Title II of the Social

Security Act ("the Act").

Sb

|

'Jo Anne B. Barnhart was appointed Commissioner of the Social

Security Administration on November 14, 2001. Pursuant to Rule 25(d)(1) of

the Federal Rules of Civil Procedure, Barnhart is hereby substituted in place of

the original defendant, Larry G. Massanari. Under the Social Security Act, no

further action is necessary to continue this suit. See 42 U.S.C. §

405(g).

As the Court has drafted its own Memorandum and Order, the

plaintiffs motion to strike the defendant's proposed order (Dkt. # 13)

is DENIED as moot.

Wittner was fifty-six years old on the date of the hearing

before the Administrative Law Judge of the Social Security

Administration ("ALJ").> She possessed an 11th grade education

and attended college courses to upgrade her computer skills‘

Wittner's past relevant work included work as a scheduler for an oil

company.’ She filed for disability on November 30, 1998, claiming

an inability to work as of March 1, 1982.° She claimed that her

inability to work is due to a stroke, heart valve problems, diabetes,

spinal arthritis, weakness, fainting, and elevated blood pressure due

to stress.’ After Wittner's applications were denied at the initial and

reconsideration levels, she requested a hearing before the ALJ.*

Wittner and her husband, Van E. Wittner, testified during

the hearing on December 15,1999.’ Wittner testified that she began

to suffer adverse physical symptoms after she suffered a "stroke" on

January 3, 1980.'° She was hospitalized for heart palpitations from

January 3 to January 6, 1980, which was followed by chest pain,

left arm numbness, nausea, and loss of consciousness.’’ An

echocardiogram, 24-Holter monitor, and glucose tolerance test were

each normal. '* During Wittner's

*Transcript of the Administrative Proceedings ("Tr."), Dkt. #

4,at 17, 34.

*Tr.at 11, 87.

-Tr.atll.

°Tr. at 53.

’Tr. at 10, 12, 86-87.

8Tr. at 34-45, 46.

? Tr. at 19-33.

Tr. at 23, 12.

'' Tr. at 101-03.

12 Id

brief hospital stay, she remained asymptomatic and was discharged

without any medications. '5 Her final diagnosis was heart

palpitations and syncope of undetermined origin.”

Wittner reported that she continued to experience episodes

of weakness and faintness from 1980 until 1982, and she took

aspirin to relieve these symptoms.’ She also claimed to have been

treated by John McHenry, M.D., ("Dr. McHenry") in 1982 for her

high blood pressure and back problems, and he allegedly prescribed

Parafon Forte to alleviate Wittner's impairments.'° However, the

medical records evidencing her visits to Dr. McHenry are

unavailable, and Dr. McHenry does not recall Wittner's visits.'’ As

evidence of her high blood pressure, Wittner testified that she was

not allowed to donate blood at work-sponsored blood drives

because of her high blood pressure.’

Wittner testified that she resigned from her job in March of

1982 because of the high levels of stress.'? She claimed that the

stress of work caused her blood pressure to elevate, which would

lead to heart problems.” After her resignation, Wittner asserted that

her blood pressure decreased

I31q

14 Tr. at 101.

'STr. at 12, 86-87.

© Tr at 12, 82.

'? Tr. at 12, 28. Dr. McHenry's office destroyed all medical files

that were inactive for ten years or more due to lack of space, which

included Wittner's medical records. See Tr. at 91-92.

''Tr. at 25. The ALJ dismissed this evidence because blood

drives usually do not result in documentation that would survive until

the present, and Wittner did not produce such evidence. /d.

Tr. at 22.

Tr. at 22-23.

and returned to normal.” However, Wittner could not produce any

medical evidence proving the decrease in her blood pressure.”

Furthermore, there is a total lack of medical records from March 1982,

the date she was last employed, to December 31, 1987, the date her

insured status expired.”

Van Wittner also testified as to Laura Wittner's physical

condition. He claimed that she suffered from instances of weakness

and dizziness subsequent to her stroke in 1980 and had to quit her job in

March of 1982 due to high blood pressure.” Van Wittner also alleged

that his wife's blood pressure improved and her heart valve problems

subsided after she resigned from her job.”

After hearing the testimony and reviewing the medical

record, the ALJ determined that Wittner was not disabled under the

Act because she did not provide any objective evidence to establish

the existence of a "severe" medically determinable impairment

prior to December 31, 1987.”° The Appeals Council approved the

ALJ's decision, thereby transforming it into the final decision of the

Commissioner.”’ Wittner then timely ed judicial review of the

decision by this Court.

Se

Standard of Review and Applicable Law

The Court's review of the Commissioner's final decision to

deny disability benefits is limited

21 Tr. at 23.

22 Tr. at 24.

3 Tr. at 27.

4 Tr. at 20-22. Van Witter gave an example of Laura

Wittner's faintness and dizziness when he testified that she passed out

in a restaurant one evening, and she was given aspirin to alleviate

these symptoms. /d.

al

5 Tr. at 32, 29.

26 Tr. at 12.

27 Tr. at 3-4.

to two issues: 1) whether substantial record evidence supports the

decision; and 2) whether proper legal standards were used to evaluate

the evidence. See Waters v. Barnhart, 276 F.3d 716, 718 (Sth Cir.

2002) (citing Estate of Morris v. Shalala, 207 F.3d 744, 745 (Sth

Cir. 2000)); Brown v. Apfel, 192 F.3d 492, 496 (Sth Cir. 1999)

(quoting McQueen v. Apfel, 168 F.3d 152, 157 n. 2 (Sth Cir.

1999))

To claim entitlement to disability benefits, a claimant must

show that she was disabled on or before the last day of her insured

status. Demandre v. Califano, 591 F.2d 1088 (Sth Cir. 1979). The

legal standard for determining disability under the Act is whether the

claimant is unable "to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment

Sf

which ... has lasted or can be expected to last for a continuous period of

not less than 12 months." 42 U.S.C. § 423(d)(1)(A). To determine

whether a claimant is capable of performing any "substantially gainful

activity," the regulations provide that the Commissioner should

evaluate disability claims according to the following sequential five-

step process:

(1) a claimant who is working, engaging in a substantially gainful

activity, will not be found to be disabled no matter what the

medical findings are;

(2) a claimant will not be found to be disabled unless he has a

"severe impairment;"

(3) a claimant whose impairment meets or is equivalent to an

impairment listed in [the Listings] will be considered disabled

without the need to consider vocational factors;

(4) aclaimant who is capable of performing work he has done in the

past must be found "not disabled;" and

(5) if the claimant is unable to perform his previous work as a

result of his impairment, then factors such as age, education,

past work experience, and residual functioning capacity

[("RFC")] must be considered to determine whether he can do

other work.

Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994).

To be entitled to benefits, a claimant bears the burden of

proving that she is unable to engage in substantial gainful activity within

the meaning of the Act. See Wren v. Sullivan, 925 F.2d 123, 125 (Sth

Cir. 1991) (citing Cook v. Heckler, 750 F.2d 39], 393 (Sth Cir.

1985)). By judicial practice, this translates into the claimant bearing

the burden of proof on the first four of the above steps and the

Commissioner bearing it on the fifth. See Brown, 192 F.3d at 498;

Greenspan v. Shalala, 38 F.3d 232, 236 (Sth Cir. 1994) (citing

Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987)). The analysis

stops at any point in the five step process upon a finding that the

claimant is or is not disabled. See Greenspan, 38 F.3d at 236.

Sg

Discussion

In this case, the ALJ determined that Wittner was not

entitled to a period of disability or disability insurance benefits under

the Act." The ALJ based his decision on a failure by Wittner to

provide substantial objective evidence of disability prior to

December 31, 1987, the date on which her insured status expired.

Consequently, the ALJ concluded, Winner was unable to demonstrate

that, since the alleged onset of her disability and prior to the expiration

of her insured status, she was unable to engage in substantial

gainful activity.’ Although the ALJ found that Witter has not

worked or engaged in substantial gainful activity since 1982, the

ALJ concluded that Wittner was unable to show that during the

period from January 1980 to December 1987 she suffered from a

8 Tr at 13.

29 Tr. at 12.

0 Tr at 13

"severe medically determinable impairment," which significantly

limited her ability to perform work.” Thus, Wittner's claim failed at

Step Two of the sequential evaluation process. Specifically, the ALJ

noted that "for the period prior to the claimant's date last insured,

December 31, 1987, there is a paucity of medical evidence.”

In his evaluation of the evidence, the ALJ found that Wittner

did provide medical evidence in the form of hospital records

showing that she suffered a debilitating stroke in January

1997.°> However, the stroke did not occur prior to the expiration of

Wittner's insured status. As the ALJ noted, the claimant must establish

that she was disabled on or before the last day of her insured status. See

Demandre, 591 F.2d at 1090. Additionally, Wittner was able to

present evidence of her hospitalization in January 1980, but she

could not show that her discharge diagnosis evidenced anything

more than “a slight abnormality having such minimal effect on [her]

that it would not be expected to interfere with the ability to

work.’** The ALJ noted that Wittner provided her own testimony and

Sh

the testimony of her husband to show that from 1980 until 1982 Wittner

continued to suffer from weakness and fainting. *° That testimony is

the sole evidence that Wittner sought treatment from John McHenry,

M. D. in 1982 for her high blood pressure and back pain, and that Dr.

McHenry prescribed her Parafan Forte for those impairments. The

ALJ noted the unfortunate

Tr. at 12.

32 Id

8 Id.

34 ld

° Id.

unavailability of Dr. McHenry's medical records.*°

Finally, the ALJ acknowledged Wittner's testimony that she

left her job in March 1982 due to job stress causing her high blood

pressure and that her blood pressure dropped after that date.*” The ALJ

found Wittner's testimony and the testimony of her husband to be

credible.** The ALJ correctly pointed out, however, that Wittner

provided no medical records to document her assertions and corroborate

her testimony. * The ALJ found that the subjective statements

regarding Wittner's medical condition from 1980 until 1987 were not

sufficient evidence to meet the burden of proving the existence of a

severe impairment.” The ALJ remarked that, aside from one

substantiated episode of heart palpitations suffered by Wittner, the

record is void of sufficient evidence to corroborate even credible

testimony of impairment. *'

In her Original Complaint, Wittner requests review of the ALJ's

decision on the basis that "there is no substantial evidence in the record

to support the decisions of the Administrative Law Judge or Appeals

51

Council."*” Wittner additionally filed an Amended Complaint,”

which reasserts her claim that she is entitled to disability

benefits and also alleges several violations of her Constitutional

rights. This Court finds that the Amended Complaint was improperly

filed without

** Id.

” td

i

wa

*9 Td.

*! Td.

2 Dkt. #1, § VI.

3 Dkt. #12.

prior request for leave to file.“ This error justifies striking the

Amended Complaint. However, the Court has given the Amended

Complaint a cursory review and has determined that Wittner's

allegations of Constitutional violations are without merit. Moreover,

the Amended Complaint provides no additional evidentiary support

to Wittner's claim that was not already included in Plaintiff's

Response to Defendant's Motion for Summary Judgment.

In support of her request for review of the ALJ's decision,

Wittner argues "that there was a lack of substantial evidence of record to

support the Commissioner's decision and that the decision does not

comport with relevant legal standards because there was credible

evidence to support Plaintiff's disability claim.*” Wittner claims

that in her hearing before the ALJ, she presented sufficient

objective and subjective evidence of her medical condition to

5

}

|

establish entitlement to disability benefits. The Commissioner asserts

that the ALJ correctly determined that Wittner did not suffer from a

severe impairment prior to the date on which she was last insured

for disability benefits, and that, consequently, she is not entitled to

disability benefits. The Court agrees.

In order for a claimant to be deemed disabled, she must

demonstrate that she suffered from a severe impairment prior to the date

on which her insured status expired. See Demandre, 59] F.2d at 1090.

As the ALJ noted, a medically determinable impairment is severe if

it significantly limits an individual's ability to do basic work

activities. 20 C.F.R. § 404.1521. The impairment must result

from abnormalities which can be shown by "medically acceptable

clinical and laboratory

“Under FED. R. Civ. P. 15(a), once more than 20 days have

passed after an original pleading has been filed, or after a responsive

pleading has been filed, "a party may amend the party's pleading only

by leave of court or by written consent of the adverse party." In this

case, Wittner filed her original complaint on August 14, 2001. The

Commissioner filed an answer on November 9, 2001. Wittner filed

her amended complaint on February 15, 2002, 14 days after she filed

her response to the Commissioner's motion for summary judgment.

© Dkt. #10, 4 3. 2

diagnostic techniques." 20 C.F.R. § 404.1508. This standard was

properly applied by the ALJ. Wittner contends that her testimony,

and the testimony of her husband, as to her medical condition between

1980 and 1987 establishes her severe impairment, so as to meet

her burden of proof. However, this Court finds that Wittner failed to

prove that she suffered from a severe impairment. The ALJ was

correct in determining that the lack of objective medical evidence in

this case dictates a finding that Wittner did not suffer from a severe

impairment prior to 1987. Even if, as the ALJ concluded, Wittner's

testimony and the testimony of her husband were credible, such

subjective statements are insufficient to meet the burden of proof. The

5k

Fifth Circuit case law makes clear that a claimant's subjective

testimony about her condition must be corroborated by objective

medical evidence. See Wren, 925 F.2d at 128-29. Wittner was able to

provide only scarce medical records documenting her condition from

1980 until 1987, primarily her patient record from a three-day stay at

Methodist Hospital in January 1980. Indeed, the record is devoid of

any documentation of Wittner's medical history from her discharge

from the hospital in 1980 until her stroke in 1997. Because Wittner

has not supported her testimony with sufficient medical evidence, she

has not met her burden of proof on the severe impairment question, Step

2 of the sequential process..

Wittner insists that the ALJ placed an improper burden on her to

produce medical records reflecting her alleged disability. This Court

finds that the ALJ properly placed the burden on Wittner to prove that

she suffered from a severe medical impairment. See Brown, 192

F.3d at 498. As discussed previously, such an impairment cannot

be established solely by a plaintiffs subjective opinions about her

condition, but must be corroborated by objective medical evidence. See

Wren, 925 F.2d at 128-29. Thus, it was proper for the ALJ to

demand that Wittner produce additional objective evidence of her

condition in the form of medical records.

Wittner also contends that because her alleged disability began

before the end of her insured status and continued beyond the date the

insured status ended, she is entitled to disability benefits. Wittner

argues that her "continuous and unbroken history of hypertension,

severe pain in her left knee and back and mitral valve problems"

establish an ongoing disability, which entitles her to benefits. =

That Wittner claims she has suffered continuously from 1980 until the

present does not avoid the evidentiary problem she faces. She is still

unable to provide sufficient medical evidence of a severe impairment

which occurred prior to 1987. Any evidence of an impairment

Wittner suffered after 1987 is irrelevant to this inquiry. It appears to

the Court that Wittner is attempting to use the medical evidence of her

stroke in 1997 to establish a severe impairment before 1987. While both

the ALJ and this Court acknowledge that Wittner's medical

evidence shows that Wittner suffered a stroke in January 1997, such

5]

evidence cannot counterbalance the obvious lack of medical evidence of

any disability during the period from 1980 to 1987.

Because Wittner was unable to establish that she suffered from

a severe impairment prior to the expiration of her insured status, the

disability inquiry ends. Accordingly, this Court upholds the

Commissioner's denial of disability benefits on the basis that the

decision is supported by evidence in the record and based upon the

application of proper legal standards to that evidence.

Conclusion

For the foregoing reasons, the Commissioner's Motion for

Summary Judgment is GRANTED. The Court will issue a final

judgment on even date herewith.

*° Dkt. #10, 45.

Signed this 17 day of September /S/ John D. Rainey 2002.

JOHN D. RAINEY

UNITED STATES DISTRICT JUDGE

5m

(ee ence re I SHORE ITAA ISI PEELE BPE a a

aay

UNITED STATES COURTS

SOUTHERN DISTRICT OF

TEXAS

ENTERED

SEP 182002

Michael N. Milby, Clerk of Court

UNITED STATES DISTRICT COURTS

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAURA B. WITTNER, §

Plaintiff, §

V. §

JO ANNE B. BARNHART, §

Commissioner of the Social §

CIVIL ACTION NO. H-O1-2746

Security Administration, §

Defendant. §

FINAL JUDGMENT

In accordance with the Court's Memorandum and Order

signed this date, the Court now believes that final judgment

should be entered. Therefore it is ORDERED that the decision of

the Commissioner of the Social Security Administration is

AFFIRMED in all respects.

This is a FINAL JUDGMENT.

Signed this 17 day of September, 2002.

/S/ John D. Rainey

JOHN D. RAINEY

UNITED STATES DISTRICT JUDGE

5n

UNITED STATES COURTS

SOUTHERN DISTRICT OF TEXAS

ENTERED

OCT 21 2002

Michael N. Milby, Clerk of Court

UNITED STATES DISTRICT COURTS

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAURA B. WITTNER, §

Plaintiff, §

Vv § CIVIL ACTION NO. H-O1-2746

a

JO ANNE B. BARNHART, §

Commissioner of the Social §

Security Administration, §

Defendant. §

ORDER

Pending before the Court is Plaintiff, Laura B. Wittner's,

Motion for Reconsideration (Dkt. #16). Plaintiff asks the Court to

reconsider its order and final judgment entered September 17,

2002, granting Defendant's motion for summary judgment.

Having reviewed Plaintiffs arguments, this Court is of the

opinion that Plaintiff has presented no new evidence that

would cause the Court to reconsider its decision.

Accordingly, Plaintiffs motion is DENIED.

Signed this 20 " day of October, 2002.

/S/ John D. Rainey

JOHN D. RAINEY

UNITED STATES DISTRICT JUDGE

So