Petition for Writ of Certiorari — Garrett v. Shalala

Fives |

32-1218 [FR

1\ DEC 3

| orrce OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER, 1992 TERM

Freddie D. Garrett, Plaintiff-Appellant

vs.

LOUIS W. SULLIVAN, SECRETARY

OF Health and Human Services

Defendant-Appellee

PETITION FOR WRIT OF CERTIORARI

PRO SE

TO THE SUPREME COURT OF THE

UNITED STATES

ty

PETITION FOR WRIT OF CERTI

Freddie D. Garrett

P.O. Box 982

Bristol, Virginia 24201

(703) 669-5453

PRO Se

QUESTIONS PRESENTED

i. Why was the appellant denied a rehearing

on the new evidence?

2. Why are my entitlements being denied?

THE PARTIES

The parties are the lower courts decisions

and there are no other parties involved.

TABLE OF CONTENTS

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Constitutional Provisions Involved.......... 1

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Opinions and Orders Below. .........scccee6. 2

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Appendix A: Opinion and Order of

me es MBER eOG COURT. «oan nsee pf

Appendix B: Opinion and Order of

4th Circuit of Appeals....... Po

Appendix C: Opinion and Order of

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4th Circuit of Appeals.......

- iii -

TABLE OF AUTHORITIES

This does not apply due to the fact I did

not use refferal to statues and cases. What is

in this book was referred to by the courts.

CONSTITUTIONAL PROVISIONS INVOLVED

AMENDMENT V. U.S. CONSTITUTION

No person shall be denied his Civil Constitu-

tional and Entitlement rights.

STATUTES INVOLVED

This does not apply, for I did not use

refferal statutes and cases, since this is pro

se.

OPINIONS AND ORDERS BELOW

A copy of the opinion for the 4TH CIRCUIT

IN RICHMOND DENYING GARRETT'S APAPEAL BASED ON

NEW EVIDENCE. ALSO INCLUDED IS THE TWO DOCTOR'S

LETTERS.

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 91-2273

CA-89-3-B

FREDDIE D. GARRETT

Plaintiff - Appellant

Vv.

LOUIS W. SULLIVAN, SECRETARY OF HEALTH AND HUMAN

SERVICES

Defendant - Appellee

The appellant has filed a petition for rehearing.

The Court denies the petition for rehearing.

For the Court,

isi Bert M. Montague

Clerk

DRS. GREEN P.C.

3-A Doctors Building

BRISTOL, TENNESSEE 37620

WAVERLY GREEN, JR., M.D.

THOMAS W. GREEN, JR., M.D.

JOHN A. GREEN, M.D.

DOUGLAS W. GREEN, M.D.

November 17, 1991

RE: Freddie Garrett

SSN: 229-40-0712

To Whom It May Concern:

Upon review of the records from Dr. Fred Vance on

Freddie Garrett it is clear that he had chest pain,

severe hypertension and hypertensive cardiovas-

cular disease dating back to at least January

1980. Dr. Vance's discharge diagnosis on 1-17-

80 was "Hypertensive Cardiovascular Disease". I

do not understand how the ruling judge can state

on page 6 of his opinions dates 9-27-90 that "a

heart condition was not diagnosed nor was any

treatment prescribed for his heart. This is

simply incorrect.

Dr. Vance prescribed Inderal to control Mr.

Garret's blood pressure and to protect his heart

from the damage already shown on his EKG in

January 1980. He also prescribed "Nitrostat 1/

150q 15 min. prn chest discomfort" at his office

visit on 12-9-80 after Mr. Garrett complained of

an “aching in his upper chest". Dr. Vance noted

again that day that the EKG was "quite abnormal

with severe ischemic changes." Ischemic changes

mean heart disease - period.

In summary the medical records clearly show Mr.

Garrett had a serious heart condition in 1980 and

the statements by Judge Williams are incorrect

concerning the heart condition and the chest pain.

Respectfully submitted,

Thomas W. Green, Jr., MC

TWG:do

COPIED FROM ORIGINAL

October 6, 1992

RE: Freddie Garrett

SSN: 229-40-0712

To Whom It May Concern:

I would like to verify the medical findings

of my brief professional contacts with Mr. Garrett

from January 1980 to January 1982. I have reviewed

my records and also have an unusually good memory

recall of his situation because of its life-

threatening implications.

He entered by care via our emergency room on

January 14, 1980 on referral from Dr. Sidney Wike

whom he consulted because of visual difficulty.

Dr. Wike found a severe elevation of his blood

pressure as well as thrombosis and blocking of the

right retinal artery as well as some small

hemorrhages and exudate, all indicative of severe

hypertensive disease. Additional findings during

his hospital stay of three days were a blood

pressure of 220/124 and an EKG showing a marked

abnormality consistent with left ventricular

hypertrophy off the heart at the upper limits of

normal size. His discharge diagnosis was

“hypertensive cardiovascular disease, probably

malignant." This indicates a severe high blood

pressure disease involving the heart and the blood

vessels of the body.

At an office visit on December 9, 1980 he

complained of anterior chest and arm pain upon

lying down at night as well as with exertion over

the preceding 2-3 weeks. His EKG was unchanged

but clinically I felt he was having angina and

added a long acting Nitroglycerine compound totry

to increase the circulation in his coronary

arteries. In addition, I have him Nitroglycerine

tablets to use beneath his tongue whenever he had

chest pain. The chest pain had lessened at the

time of his next office visit on December 31, 1980.

He was worked into the office quickly on his

last office visit on January 27, 1982 with another

bout of chest pain that sounded muscular rather

than cardiac in origin. By percussion I felt his

heart had enlarged somewhat and his blood pressure

was 180/100 sitting and 184/104 standing.

Unquestionably Mr. Garrett had definite

evidence of cardiac and vascular disease objec-

tively and clinically in 1980.

Sincerely,

Fred V. Vance, Jr., M.D.

FVV:JR/jf

COPIED FROM ORIGINAL

JURISDICTION

The decision from U. S. District Court was

issued September 27, 1991. A Petition. for

rehearing was filled July 13, 1992 and denied

August 7, 1992.

STATEMENT OF THE CASE

A copy of the U. S. District Court

dismissing the appleants case is attached as

Appendix A.

A copy of the U. S. Court of Appeals

upholding the U. S. District Court is attached

to Appendix B.

A copy of the U. S. Court of Appeals for the

Fourth Circuit dening the appealant a rehearing

is attached as Appendix C.

ARGUMENT

This case raises an important question as

to why I have had such a hard time trying to get

my entitlements, which I was forced into paying

and thinking someday I'll need this if anything

sould happen that I could no longer do gainful

employment. Its taken over six years to get this

far, due to the fact that the attorney failed to

get the necessary information, that was needed.

I didn't know this until he had returned all

papers and I went through them and discovcered

that there was information missing. So it took

me sometime to obtain this information due to the

fact that the Doctor had retired.

The 4th Circuit of Appeals would not take

this into consideration, knowing how importatnt

it meant, or if I had had this information, I'm

sure Judge Williams would have not denied me my

benefits. I applied for benefits December 12,

1986.

12

CONCLUSION

For the above reasons the Court should

grant and take the new evidence and or should

refer this back to the U. S. District Court and

get a rehearing.

Respectfully submitted,

Freddie D. Garrett

P. O. Box 982

Bristol, VA 24203

(703) 669-5453

Pro SE

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

BIG STONE GAP DIVISION

FREDDIE GARRETT CIVIL ACTION NO. 89-0003-B

SSN: 229-40-0712

Plaintiff

Vv. MEMORANDUM OPINION

LOUIS W. SULLIVAN

Secretary of Health

and Human Services BY: Glen M. Williams

Senior United States

Defendant District Judge

Plantiff has filed this action challenging

the final decision of the Secretary of Health and

Human Services denying plaintiff's claim for a

period of disability and disability insurance

benefits under the Social Security Act, as

amended, 42 U.S.C. § 416 (i) and 423. Jurisdic-

tion of this court is pursuant to § 205 (g) of the

Act, 42 U.S.C. § 405 (g).

This court's review is limited to a determination

as whether there is substantial evidence to

support the Secretary's conclusion that plaintiff

failed to meet the requirements for entitlement

to benefits under the Act. If such substantial

evidence exists, the final decision of the

Secretary must be affirmed. Laws v. Celebreeze,

368 F. 640 (4th Cir. 1966). Stated briefly,

substantial evidence has been defined as such

relevant evidence, considering the record as a

whole, as might be found adequate to support a

conclusion by a reasonable mind. Richardson v.

Perales, 402 U.S. 389, 400 (1971).

In an opinion which now stands as the final

decision of the Secretary, the Social Security

Administration's Appeals Council found that

plaintiff was not under such a disability as to

establish entitlement to benefits under the Act.

While the appeals Council found that plaintiff

suffered from several impairments, it concluded

that the conditions were not so severe, either

Singly or in combination, as to constitute a

disability within the meaning of the Act, 42

U.S.C. § 423, at any time prior to the termination

« 98 «=

of insured status.

This case is before the court for the second

time. Upon the Secretary's motion, the court

remanded this case in an order dated August 17,

1989. Thereafter the Appeals Council remanded the

case to the ALJ and directed the ALJ to credit

plaintiff with additional quarters of coverage,

plaintiff's insured status continued until Sep-

tember 30, 1984 rather than December 31, 1979.

Thus there was an unadjudicated period from

January 1, 1980 to September 30, 1984. After the

second administrative hearing, the ALJ issued a

recommended decision favorable to the Secretary.

The Appeals Council, however, assumed jurisdic-

tion, issued a decision which became the final

decision of the Secretary and denied plaintiff's

claim for a period of disability and disability

insurance benefits.

Plaintiff was born on May 1, 1935 and

completed the eighth grade. His past relevant

work was in electronic sales and services. As

already mentioned, plaintiff's insured status for

disability insurance benefits expired on

September 30, 1984. Therefore, the issue before

the court is whether plaintiff was disabled under

the Act on or before this date. 20 C.F.R. §

404.130 et seg.

The medical advisor who testified at the

second administrative hearing gave the following

summary of plaintiff's medical condition on or

before September 30, 1984:

There's, there's not much in this record prior to

1984. There is some material from Dr. Smit back

in 1972 at which time he saw this man for an acute

arthritic problem and suspicions of rheumatoid

arthritis and there were even some x-rays

suggesting rheumatoid arthritis. At that time

there was an old, there was an history obtained

indicating severe injuries in 1950 from which the

patient has apparently well recovered, but the

findings by Dr. Smit included a number of painful

joints, a urinary tract infection, some obesity

and the diagnosis as to the arthritis was not

clear and remained unclear from this record as far

as I can tell. There's nothing else then in the

record until an episode in 1980 at which time the

patient had an admission to Bristol Memorial

Hospital because of a referral from an ophthal-

mologist. He had been seen with severe visual

disturbance in the right eye, of one week duration

and was found to have a retinal artery thrombosis

(phonetic). He was also found to have severely

elevated blood pressure. This was treated by Dr.

Fred Vance and improved. He was given a number

off quite potent medications for his blood

pressure, which apparently did control it ad-

equately and he was discharged on good control.

There is no more visual evaluation and no more

evaluation of any that I can tell until 1987, after

that or well, 1986, when he had a heart attack.

This, so taking that comes into not priorto 1984,

the patient was known to have severe hypertensive

cardiovascular disease with the complication of

a thrombosis of the retinal artery, which is a

severe complication and presumably related to his

vascular disease, but that must have partially

resolved at least because there's, there's not

much mention later of any problem with vision of

Bsignificance. He did have at the time a history

of kidney stones and renal cysts which may have

been contributory to the hypertension. If he, if

he did indeed have polycycstic renal disease, that

would contribute certainly, but that's not

clearly further developed in this record. There

is no mention that he had chest pains in 1980. In

the limited records here to including two

admissions, there is no mention at all that he's

had any, that he had any chest pain. If he, if

he had complained of angina, he did have some EKG

changes that were, chat are right severe, but

they're, they are also probably and possibly due

to what's called left ventricular hypertrophy

(phonetic) rather than coronary artery

insufficiency ... .

(Record at 230-232). Because of the left

ventricular hypertrophy, EKG changes and retinal

thrombosis, the medical advisor opined that

plaintiff had had a severe vascular disease for

a long time. However, he indicated that the only

end organ damage before 1984 was the LVH and

retinal artery was that the visual damage must not

have been very severe because Dr. Wike only noted

ee aaa aia

that "some visual defects were present." (Record

at 232).

In addition to these medical problems,

plaintiff was examined by Dr. James’ Eden,

psychiatrist, on October 22, 1987. He diagnosed

a Dysthymic Disorder, but other than plaintiff's

own statement that he thought that his illness

dated back to 1982 when he stopped working as an

installer for the electronics business, Dr. Eden

did not indicate that plaintiff's mental impair-

ment existed as far back as September 30, 1984.

In psychological testing, plaintiff obtained a

verbal I.Q. of 77, a performance I.Q. of 82 and

a full scale I.Q. of 79. The Secretary correctly

accepted this borderline intellectual function-

ing as being life-long condition under Branham

v. Heckler, 775 F.2d 1271 (4th Cir. 1985), but

concluded that plaintiff did not have any other

mental impairment on or before the expiration of

his insured status.

After reviewing the medical evidence, the

medical advisor testified that prior to September

30, 1984, plaintiff could not have performed work

requiring him to lift more than 20 pounds, to work

around dangerous machinery or unprotected heights

and to perform fine manipulation. Using these

limitations, the vocational expert identified

jobs in the economy that plaintiff could have

performed on or before September 30, 1984 such as

a salesclerk, cashier and product packager.

Plaintiff's condition obviously worsened

when he suffered two myocardial infarctions in

1986 and underwent bypass surgery in 1987.

However, the court finds substantial evidence

supporting the Secretary's final decision that he

was not disabled on or before September 30, 1984.

Despite plaintiff's argument that the damage to

his eye resulting from hypertension met the

Listing of Impairments, 20 C.F.R. Part 404,

Subpt. P, App. 1 § 4.00 (C), the court does not

find severe damage as required. After the initial

problem in 1980, there is no other evidence of any

complications with his eyes or treatment for them.

Plaintiff also argued that the ALJ did not

properly evaluate his pain under the appropriate

Fourth Circuit standards because of use of

SSR-13. Recognizing that the court in Hyatt v.

Sullivan, 889 F.2d 329 (4th Cir. 1990), found this

ruling defective, the Appeals Council considered

plaintiff's allegations of pain under SSR 90-1p

and concluded that the ALJ had properly evaluated

the pain issue under the Fourth Circuit standards.

The court finds substantial evidence supporting

this conclusion also. As already noted, the

severeness of plaintiff's current condition

primarily resulted from his two heart attacks.

Prior to the expiration of his insured status, he

had not made any complaints of chest pain. While

some abnormal results were found on an EKG and x-

ray, a heart condition was not diagnosed nor was

any treatment prescribed for his heart.

For these reasons the court finds substan-

tial evidence supporting the final decision of the

Secretary. Accordingly, the Secretary's final

decision must be affirmed. Laws v lebreeze,

supra. An appropriate judgement and order will

be entered this day.

The Clerk is directed to send certified

copies of opinion to all counsel of record.

DATED: This 27 day of September, 1991.

Glen M. Williams

Senior United States District Judge

APPENDIX B

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FREDDIE D. GARRETT,

Plaintiff-Appellant,

Vv. No. 91-2273

LOUIS W. SULLIVAN, SECRETARY OF

HEALTH AND HUMAN SERVICES,

Defendant-Appellee.

Appeal from the United States District Court

for the Westera District of Virginia, at Big

Stone Gap.

Glen M. Williams, Senior District Judge

(CA-89-3-B)

Submitted: July 13, 1992

Decided: August 7, 1992

Before HALL, MURNAGHAN, and HAMILTON, Circuit Judges

Affirmed by unpublished per curiam opinion.

COUNSEL

Freddie D. Garrett, Appellant Pro Se. Jean Martel

Barrett, OFFICE OF THE UNITED STATES ATTORNEY,

Roanoke, Virginia; William Brian Reeser, UNITED

STATES DEPARTMENT OF HEALTH & HUMAN SERVICES,

Philadelphia, Pennsylvania, for Appellee.

Unpublished opinions are not binding precedent in

this circuit. See I.0.P. 36.5 and 36.6

OPINION

PER CURIAM:

Freddie D. Garrett appeals from an order of

the district court granting summary judgement in

favor of the Secretary of Health and Human

Services (Secretary). The Secretary denied

social security disability benefits to Garrett in

administrative proceedings. Finding no new,

material evidence presented on appeal and the

Secretary's decision supported by substantial

evidence, we affirm.’

* Because this case was decided in the normal course of appeal,

Garrett's motion to expedite is hereby denied.

« $6 «

The Secretary, through an Appeals Council deci-

sion upholding the ruling of an administrative law

judge (ALJ), decided that Garrett's disability

occurred after the termination of his social

security disability insurance.* Such decisions

may be appealed to the district court for

determination of whether the decision was sup-

ported by substantial evidence, with the district

court's decision subject to review by this Court.

42 U.S.C.A. § 405 (g) (West 1991). On appeal, this

Court does not find facts or retry the case, King

v. Califano, 599 F.2d 597 (4th Cir. 1979), and will

not upset the decision if it is supported by

substantial evidence. Wilkinsv. Secretary, Health & Human

Servs., 953 F.2d 93 (4th Cir. 1991).

ae

Garrett's first, and main, argument is that

the Secretary's decision is not supported by

substantial evidence. However, the ALJ, whose

initial ruling provides the record evidence for

7 The termination date of Garrett's disability insurance was

determined to be September 30, 1984. This is uncontested on appeal.

a: 2 ie

appeal, heard sufficient facts to reasonably

conclude that Garrett was not disabled as of

September 30, 1984. The evidence produced at the

hearing before the ALJ included, inter alia: (1)

Expert testimony that Garrett could perform light

work during the period from 1980-1984; (2) expert

testimony that such work was available in

Garrett's economic region during that period; (3)

evidence that Garrett sought almost no medical

treatment during that same period; and (4)

evidence of Garrett's myocardial infarctions in

1986. Garrett's present disability is uncontested;

however, the evidence could lead a reasonable

trier of fact to conclude that Garrett did not

become disabled until 1986, almost two years after

the termination of Garrett's disability insur-

ance. The ALJ's ruling on ineligibility, upon

which the Secretary's decision to deny benefits

was ultimately based, is supported by substantial

evidence. The district court did not err in so

finding.

te a

Garrett's second argument is that, even if

substantial evidence did exist, remand is proper

under 42 U.S.C.A. § 405 (g). This section allows

courts to remand to the Secretary where new,

material evidence is presented on appeal. "Evi-

dence is new...if it is not duplicative or

cumulative." Wilkins, 953 F.2d at 96. "Evidence is

material if there is a reasonable possibility that

the new evidence would have changed the outcome."

Id. During his appeal Garrett has produced: (1)

a letter from his current physician criticizing

the ALJ's findings; and (2) undated EKG's.

The latter evidence is unhelpful. The lack

of dates or other descriptive information on the

bare EKG's renders them non-material. There is

no reasonable probability that the outcome would

be different on remand with this evidence.

The physician's letter does not merit a

remand either. Because it merely points to

information already before the ALJ,’ it is not

“new. " Additionally, there is no reason to

believe that the Secretary would alter the outcome

*The ALJ noted in his written decision that Garrett had the

cardiovascular condition mentioned in the letter. He took the

condition into consideration, weighing it with the expert testimony

and other evidence.

- 26 =

of the claim on remand based on the critique of

the ALJ's findings by Garrett's physical. Thus,

the letter is not material.

Pee

Because the decision of the Secretary, based

on the findings and ruling of the ALJ, is supported

by substantial evidence; and because no new,

material evidence has been brought forth on

appeal, the district court's grant of summary

judgement for the Secretary is affirmed. We

dispense with oral argument because the facts and

legal contentions are adequately presented in the

materials before the Court and argument would not

aid the decisional process.

AFFIRMED

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 91-2273

CA-89-3-B

FREDDIE D. GARRETT

Plaintiff - Appellant

w «

LOUIS W. SULLIVAN, SECRETARY OF HEALTH AND HUMAN

SERVICES

Defendant - Appellee

ORDER

The appellant has filed a petition for rehearing.

The Court denies the petition for rehearing.

For the Court,

i/s/_ Bert M. Montague

Clerk