# Prologue — Fink v. Barnhart

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1666%3A0

## Record

- **Collection:** Supreme Court brief
- **Document type:** Prologue
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1150

## Text

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,

Vil

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)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1666%3A0. Public record. Not legal advice.