Prologue — Fink v. Barnhart

sear iy Court, U.S.

Gy. ILED

05- 5 8 JUL 5 - 2005

{ “tm

No. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

MAXANN C. FINK,

Petitioner

v.

JO ANN B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY

Respondent

c/w

IDA J. ROCHESTER,

Petitioner

v.

JO ANN B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY

Respondent

On Petition For Writ of Certiorari

To the Fifth Circuit Court of Appeals

PETITION FOR WRIT OF CERTIORARI

PAUL BRIAN SPURLOCK

Counsel for Petitioners

DISABILITY LAW CENTER, INC.

500 HAGAN AVENUE

New ORLEANS, LA 70119

TELEPHONE:(504) 822-2224

il

QUESTIONS PRESENTED

1. Whether the court of appeals erred in holding that, in

Social Security Disability claims, failure of the Social Security

Administration to comply with 20 C.F.R. 404.1527(d)(2) and

implementing regulations, which require that the Commissioner

“make every reasonable effort to obtain from the individual's

treating physician...all medical evidence, including diagnostic

tests, necessary in order to properly make such determination,”

constitutes harmless error.

2. Whether the court of appeals erred in holding that

this obligation can be shifted to Social Security Disability

claimants.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

1V

TABLE OF CONTENTS

| Page

SE ENN 5 oni Sh hice oe ed Va wasaee aes awe reas I

ae epee POUT Se NPE eT PEEL PPT Nay ee ree ]

Constitutional and Statutory Provisions Involved........ 2

Pee Per Tere eed Ce re TR ee 3

Reasons for Granting the Petition..................... 4

SEER ee ee ToT ee eet Stan rere 27

INDEX TO APPENDICES

APPENDIX A. ALJ Decision Denying Benefits to

Petitioner Maxann Fink.............. l

APPENDIX B. Appeals Council Decision, Fink... .... 17

APPENDIX C. USDC - Magistrate’s Report &

Recommendation, Fink v. Barnhart..... 20

APPENDIX D. USDC- Order, Fink v. Barnhart........ 49

APPENDIX E. USDC- Judgment, Fink v. Barnhart. .. 50

APPENDIX F. ALJ Decision Denying Benefits to

Petitioner Ida Rochester.............. 51

APPENDIX G. Appeals Council Decision, Barnhart... 59

APPENDIX H. USDC - Magistrate’s Report & Recom-

mendation, Rochester v. Barnhart ...... 62

APPENDIX I: USDC - Judgment, Rochester......... 80

APPENDIX J:

APPENDIX K:

APPENDIX L:

2

5" Circuit Court of Appeals, Decision,

Fink c/w Rochester v. Barnhart........ 8]

5" Circuit Court of Appeals, Denial of

Petition for Rehearing En Banc........ 84

Senator Levin’s Remarks,

senate, May 22, 1904 «oo. a oie cies 85

vi

TABLE OF AUTHORITIES CITED

CASES | Pages

Anderson v. Sullivan, 887 F. 2d 630 (5" Cir. 1989)....... 17

Black & Decker v. Nord, 538 U.S. 822 (2003)........... 4

Bowman v. Barnhart, 310 F. 3d. 1080 (8" Cir. 2002)... .7,13

Clark v. Commissioner of Social Security, 143 F.3d

Sa Ba BOND cyan ab Scab kieedeess 7

Pe os Sa rer rr ees eee 19

Frank v. Barnhart, 326 F. 3d. 1086 (5" Cir. 2003) ....... 17

Goatcher v. U.S. Department of Health & Human

Servs., 52 F.3d 288, 290 (10th Cir. 1995).......... 7

Goodley v. Harris, 608 F. 2d. 234 (5" Cir. 1979) ........ 16

Lewis v. Chater, 1996 WL 43111 (E.D. La. July 31, 1996)

ek PND Ce tb icsweknsdean fee ein ws 13

Lidy v. Sullivan, 911 F. 2d. 1075 (5™ Cir. 1990) ......... 27

Morris v. Bowen, 864 F. 2d. 333 (5" Cir. 1988) ......... 17

Newton v. Apfel, 209 F. 3d 448 (5" Cir. 2000) ...... 13,20,21

O'Donnell v. Barnhart, 318 F. 3d. 811 (8" Cir. 2003)... 7,13

Passare v. Barnhart, E.D.LA. No.04-1300............ 14

Robinson v. Barnhart, 366 F.3d 1078

ST a scant cu aeatasaes 7,8,13,20,25

Schisler v. Bowen, 851 F.2d 43 (2™ Cir. 1988) ........... 11

Schisler v. Heckler, 787 F.2d 76 (2™ Cir. 1986)......... 11

White v. Massanari, 287 F.3d. 903 (10" Cir. 2001). . 7, 8,13,26

Wilson v. Commissioner of Social Sec., 378 F.3d 541

Pr ME os Gu ay can taledik hb Guano eat 7,21,25

STATUTES AND REGULATIONS

42 U.S.C. 423(d)(S)(B) . . .2, 5, 7, 10,11,13,14,15,16,18,25,28

Social Security Disability Benefits Reform Act

ME its eeu husk oR adh Ne wew eRe eee es 5

IS boa peas Ga op 4 bce eae eeee 9,11,

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CRs PED cies ox acs aaa os be Saban sd aoe 9

GG SRO oo rk has eiee cn elke. er Pes 12,19

Be GE os co dw aed ret edasaeet haem 12

20 C.F.R. 404.1512feK 1)... 2... eee 6,13,14,16,19,25

BG EE bw yus ae pies bean nt ees 12,14,16

a en Fob bao baie asisonenboenn, 5,14,16

es TE 56-8 hc ve bee whe ead 6,28

EEG oss 5 8S on ts a Bh ae eee beans 4,19

PO CPR ROO TSE Ia) 5 oc cvcccdess 4,7,8,12,16,20,21

56 Fed. Reg. 36950-1 (August 1, 1999)................ 19

SOCIAL SECURITY RULINGS & HALLEX

HALLEX 1-5-310, Attachment IV .............is..:.. 18

SECONDARY MATERIALS

Travers, Timothy E., ed., Social Security Law and

Practice, Clark, Boardman, Callaghan (Deerfield,

| Pe ye rc res y Speer Py err re ee 6

Hearing before the Committee of Finance |

of the U.S. Senate, 97" Congress,

2” Sadie, Pape TR FO, ok oes oss bois poe at 9

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully pray that a writ of certiorari issue to

review the judgment below:

OPINIONS BELOW

The opinion of the United States court of appeals appears at

Appendix J to the petition and has been designated as

unpublished, but may be found at 123 Fed.Appx. 146, 2005 WL

196726 (5" Dir.(LA)).

JURISDICTION

The date on which the United States Court of Appeals decided

our case was January 31, 2005.

A timely petition for rehearing en banc was denied by the

United States Court of Appeals on the following date: April 6,

2005, and a copy of the order denying rehearing appears at

Appendix K.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

42 USC 423(d)(5)\(B)

(B) In making any determination with respect to whether an

individua! is under a disability or continues to be under a

disability, the Commissioner of Social Security shall consider

all evidence available in such individual's case record, and shall

develop a complete medical history of at least the preceding

twelve months for any case in which a determination is made

that the individual is not under a disability. In making any

determination the Commissioner of Social Security shall make

every reasonable effort to obtain from the individual's treating

physician (or other treating health care provider) all medical

evidence, including diagnostic tests, necessary in order to

properly make such determination, prior to evaluating medical

evidence obtained from any other source on a consultative

basis.

3

STATEMENT OF THE CASE

Petitioner Maxann Fink filed an application for

disability insurance benefits on July 22, 1998, alleging

disability since June 30, 1986. She was denied initially and on

reconsideration and had a hearing before an Administrative Law

Judge, who issued a decision on September 25, 2000. That

decision rejected the findings of the treating physicians in favor

of the findings of a non-treating consultant and denied

Petitioner benefits, stating that there was other work Petitioner

could perform, so that she was not disabled. Petitioner

requested review by the Appeals Councii, but the decision was

affirmed on June 7, 2002. Petitioner then appealed to the

United St. es District Court, where the matter was referred to

a Magistrate. The Magistrate, on August 11, 2003,

recommended that there be judgment denying plaintiffs motion

for summary judgment and granting defendant’s motion for

summary judgment. Plaintiff then filed an objection to the

Magistrate’s report and recommendation and a motion to stay

proceedings, both of which were denied. Plaintiff then

appealed to the Fifth Circuit Court of Appeals.

Petitioner Ida Rochester filed an application for

disability insurance benefits on June 23, 1998, alleging

disability since November |, 1997. She was denied initially

and on reconsideration and had a hearing before Administrative

Law Judge E. Wilson Crump, I], who issued a decision on

August 23, 2000. That decision rejected the findings of the

treating physicians in favor of the findings of a non-treating

consultant and denied petitioner benefits, stating that, as there

was a substantial number of jobs petitioner could perform, she

was not disabled. Petitioner requested review by the Appeals

Council, but the decision was affirmed on October 17, 2002.

Petitioner then appealed to the United States District Court.

The Court below referred the matter to a Magistrate, who

recommended that plaintiff's complaint be dismissed. Plaintiff

4

objected to the magistrate’s report and recommendation, but the

court accepted the findings and recommendation of the

magistrate. Plaintiff Rochester then appealed to the Fifth

Circuit Court of Appeals.

The two cases were consolidated, and, on January 31,

2005, the Fifth Circuit panel affirmed the decisions of the lower

courts. Plaintiffs requested en banc rehearing, but that request

was denied on April 6, 2005.

The basis for federal jurisdiction in the courts of first

instance was 42 U.S.C. §401, et. seq.

For simplicity, petitioners will concisely state that the

findings of their treating physicians, if accepted by respondent,

would have resulted in a finding of disability for each. Instead,

respondent sent petitioners to consultative examinations

without soliciting the treating physicians to perform them,

accepted the findings of a single non-treating examiner, and

rejected the findings of both treating physicians in Fink and

both treating psychiatrists (and a consulting psychiatrist) in

Rochester without recontacting the treating physicians to

attempt to resolve perceived inconsistencies or addressing the

factors of 20 C.F.R. 404.1527(d)(2).

REASONS FOR GRANTING THE PETITION

Two years ago, in Black & Decker Disability Plan v.

Nord, 538 U.S. 822 (2003), this Court compared the “treating

physician rule” in ERISA cases to that of a portion (20 C.F.R.

404.1527) of the “treating physician rule” in Social Security

disability cases. But 20 C.F.R. 404.1527 is but one of several

regulations’ implementing 42 USC 423(d)(5)(B), which was

20 CFR 404.1500 et. seg. and 20 CFR 416.900 e7. seg. For facility,

only those regulations regarding Title II benefits, 20 CFR 404.1500 ez.

seq. will be addressed, though those regulations addressing Title X V1

(SSI) are identical.

5

added to the Social Security Act as part of the Social Security

Disability Benefits Reform Act of 1984’,. These regulations,

and 42 USC 423(d)(5)(B), have not yet been addressed by this

Court, and there exists a division between the circuits regarding

the enforcement of some.

In practice, 42 USC 423(d)(5)(B) and the regulations are

uniformly ignored by the Social Security Administration (SSA)

unless and until remedied by the Appeals Council on a case by

case basis. For example, 42 USC 423(d)(5)(B) provides, in

pertinent part:

In making any determination the Commissioner of

Social Security shall make every reasonable effort to

obtain from the individual's treating physician (or other

treating health care provider) all medical evidence,

including diagnostic tests, necessary in order to properly

make such determination, prior to evaluating medical

evidence obtained from any other source on a

consultative basis.

Accordingly, pursuant to instructions le the Second

Circuit, 20 C.F.R. 404.1519h was enacted to provide:

When in our judgment your treating physician or

psychologist is qualified, equipped, and willing to

perform the additional examination or tests for the fee

schedule payment, and generally furnishes complete and

timely reports, your treating physician or psychologist

will be the preferred source to do the purchased

examination. Even if only a supplemental test is

required, your treating physician or psychologist is

ordinarily the preferred source.

But, in practice, petitioner urges that the treating

physician 1s effectively solicited to perform the consultative

examination in fewer than 5% of the cases. The number might

very well be fewer than 1%, and counsel for petitioners

2

Pub. L. No. 98-460, 98 Stat. 1794 (1984)