Petition for Writ of Certiorari — Robinson v. Barnhart

Supreme Gwurt, U.S. ~

FILED \

WY)

02178 6FEB 2 0 2003

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

ELAINE RUTH ROBINSON-PETITIONER

Vs.

JO ANNE B.BARNHART-RESPONDENT

Commissioner, Social Security administration

ON PETITION FOR A WRIT OF CERTIORARI

TO

UNITED STATES COURT OF APPEALS

FOR THE NINTH DISTRICT

PETITION FOR WRIT OF CERTIORARI

ELAINE RUTH ROBINSON, PRO SE

SIGNED. & fey sac. Ara fpbsstra DATE.» 102 02

6540 WEST HIGHLAND AVENUE

PHOENIX , AZ 85033-1615

623-846-4266

Sines wa townucie a

QUESTIONS

1. How can the ALJ and the Commissioner of the

Social Security Administration insist on two (2) onset

dates for my suffering of over forty years of Multiple

Sclerosis debilitating disease?

2. How can the ALJ in his findings from the

hearingclaim I have no listed impairments in

appendix 1, Subpart P, Regulation No. 4,. Dealling

specifically with Multiple Sclerosis?

3. How could the Disability Examiner from the

disability determination service administration

determined that I did meet the above criteria from

an examination of 7 hours- almost two years before

the ALJ refuted this document and proof thereof?

4 Why did the ALJ “accorded no weight” to this

vocational assessment and claimed my Multiple

sclerosis Physician of 120 Miles would have more

relevance-in my being able to work

6. Why would the commisioner agree with the

disability examiner and backdate my benefits from

accepting the findings of the vocational assesment,

and disability examiner but the ALJ still determined I

could not be disabled from the second onset date?

7. How could the ALJ state that I could return to my

previous employment ?

8. Why would the “legal” system treat me as if I have

a curable disease?

LIST OF PARTIES

DEFENDANT/APPELLEE

PAUL K. CHARLTON

United States Attomey

District of Anzona

MICHAEL R. ARKFELD

Assistant U.S. Attorney

Attomeys for Defendant/Appellee

Two Renaissance Square

40 N. Central Ave., Suite 1200

Phoenix, Arizona 85004-4408

Telephone: (602) 514-7566

DEANA R. ERTL-LOMBARDI

Regional Chief Counsel, Region VIII

CYNTHIA R. S. GROVER

Assistant Regional Counsel

Social Security Administration

Office of the General Counsel

1961 Stout Street, Suite 120

Denver, Colorado 80294

TABLE OF CONTENTS

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STATEMENT OF THE CASE..................00. 3

REASONS FOR GRANTING THE PETITION........ 4

APPENDIX A Decision of United States Court

of Appeals For The Ninth District........... 56,7

APPENDIX B Decision of United States Court

apemtmaet OF ARIZONA, .. wwe eee eee 8-27

APPENDIX C Verbatim 20 C.F.R.,Subpart P

of Part 404-App 1.MS

impairments-Neurological........... siete ee 29-31

APPENDIX D Indisputable Medical/

eae oa bog Gn sw bv o 0.0 0s 32-37

ee Fe UPL TT eerer eee 38

TABLE OF AUTHORITIES CITED

FEDERAL CASE

Parish v. Califano, 642 F.2d 188-193

i _) Saree a arene ae ee 3,4,32,33

SOCIAL SECURITY REGULATIONS

20 C.F.R. Subpart P, Appendix 1

(This regulation is paraphrased below and

Verbatim in Appendix C)

LD. In conditions which are episodic in character

such as multiple sclerosis...

E. Multiple sclerosis. The major criteria for

evaluating impairment caused by multiple

sclerosis are discussed in listing 11.09.

Paragraph A. provides criteria for evaluating...

11.09 Multiple sclerosis. With:

A. Disorganization of motor function as described

in 11.04B: (or)11.09 B*

11.04

B.Significant and persistent disorganization of

Motor function... (See 11.00 C)

11.00

C. Persistent disorganization of motor function...

11.09

*B. Visual or mental impairment as described

Under the criteria in 2.02, 2.03, 2.04, or,

12.02: or

C. Significant, reproducible fatigue...

iv

OPINIONS

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari

issue to review the judgment below.

The opinion of the UNITED STATES COURT OF

APPEALS FOR THE NINTH DISTRICT appears at

Appendix A to the petition and is unpublished.

The opinion of the UNITED STATES DISTRICT

COURT DISTRICT OF ARIZONA Appears at

Appendix B to the Petition and is unpublished.

ry

JURISDICTION

The date on which the United States Court of

Appeals decided my case was November 22, 2002.

The jurisdiction of this Court is invoked under 28

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

STATEMENT OF THE CASE

I have to answer to the many citations and or

cases brought up by the defendant , when there was

none referring to someone with my disabling

disease. I used Patricia Parrish, Parish v. Califano, 642

F. 2d 188 (6 Cir. 1981), we suffer. Well over fifty years

ago I was a legal secretary to the office of

investigations and audits for the Chicago Board of

Trade. How would I tell these attomeys how I was

treated? Tobe compared to a migrant farm worker

who did not speak English or Spanish a drunk and

substance abuser. I ama citizen of the United States

of America, was born in Chicago, Illinois and have

- always used English as my spoken and written

language. I am a female ; I never have smoked and

was never drunk nor have a substance abuse.

The defendant never once responded to my

queries, but instead made me appear like a person

who would rather fabricate stories of myself than to

speak the truth. Why does the Defendant insist on

changing my onset date for Multiple Sclerosis, when

it appears and is documented and already accepted

as having the onset date as January , 1963.

Once you are diagnosed as having Multiple

Sclerosis, YOU HAVE IT FOR LIFE. THERE IS NO

CURE, only remissions and exacerbations I know-!

HAVE LIVED WITH IT AND RECEIVED

TREATMENTS FOR THE EXACERBATIONS EVER

SINCE 1/63. My doctor at that time said that I would

just have to tell everyone that I needed help from

time to time. My family of three adult children and

my husband of 48 years have all helped me The

children have all earned their college degrees

without any help from their parents. Our oldest is a

facial plastics’ reconstructive head and neck

surgeon. 3

REASONS FOR GRANTING THE PETITION

In Parish v. Califiano F 2d 188-193 (6™ Cir. 1981) The

Honorable Judge Cormelia Kennedy very clearly ruled

on how a claimant such as Patricia Parish could be

misdiagnosed and mistreated with the mysteries of

the Multiple Sclerosis Syndrome. Judge Kennedy on

page 193 elicited how the ALJ erred in that case by

not using 20 C.F.R. Subpart P. Appendix 1,11.09A 461

462.

I had hope in the Supreme Court Of the United ©

States it would adjudicate and rule that Multiple

Sclerosis is not the same as any other medical

disability. You try harder to work even though you

will never be able to reach the levels that were

apparent prior to the disease.

I suffer from a disease which is consistently

inconsistent. We always look so good-but now you

know that is just the surface of waxing and waning

of this mystery disease.

Please do not let other be treated the way I

have been -just because I wanted to work...

a NS TE Re,

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

NOV 22 2002 -

CATHY A CATTERSON

CLERK , U.S.COURT OF

ELAINE RUTH ROBINSON APPEALS

Plaintiff-Appellant,

V.

JOANNE B. BARNHART, Commissioner,

Social Security Administration,

Defendant, Appellee,

Appeal from the United States District Court

For the District of Arizona

James A. Teilborg, District Judge, Presiding

Submitted November 18, 2002***

Before: REINHARDT, RYMER, AND SILVERMAN,

Circuit Judges.

Elaine Ruth Robirson appeals pro se the district

court’s summary judgment

* Jo Anne B. Barnhart is substituted for Kenneth S. Apfel

as commissioner of Social Security Administration, pursuant

to Fed. R. App. P. 43(c)(2).

** This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as

may be provided by 9* Cir. R. 36-3

*** The panel unanimously finds this case suitable

for decision without oral argument. See Fed. R. App,P.

34(a)(2).

APPENDIX A 5

For the Commissioner of Social Security

(“Commissioner”) on Robinson's claim that the

Administrative Law Judge (“ALJ") improperly

determined the onset date of her disability as

December 1, 1996, and not November 30, 1992. We

have jurisdiction under 28 U.S.C. Sec. 1291. We

Affirm.

We review de novo the district court order affirming

the Commissioner's denial of social security benefits.

Armstrong v. Commissioner of the Soc. Sec. Admin.,

160 F.3d 587, 589 (9 Cir. 1998). If the Commissioner

applied the correct legal standards and substantial

evidence supports the Commissioner's decision, it

must be affirmed. Id.

None of Robinson's examining and treating

physicians opined that Robinson's multiple sclerosis

was disabling prior to December, 20, 1996. The

medical reports and the testimony of the vocational

expert constitute substantial evidence supporting the

ALJ's conclusion that Robinson was capable of

performing her past relevant work as a

secretary/clerk until December I, 1996. See Villa v.

Heckler, 797 F. 2d 794, 796 (9 Cir. L996) (stating that

while the Secretary could have chosen an earlier

onset date the question we face is whether the

chosen onset date is supported by substantial

evidence, not whether an earlier date could have

been supported).

The May 1992 report of Robinson's treating

physician Dr. Sibley, that Robinson had never been

disabled for purposes of full time employment,

provided clear and convincing reasons for finding

Robinson's testimony not credible. See Johnson v.

Shalala, 60 F.3d 1428, 1433-34 (9thCir.1955) (finding

clear and convincing reasons based on contradictions

6

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between claimant's testimony and the relevant

medical evidence). Furthermore, the ALJ properly

rejected the opinion of vocational consultant Richard

W. Vandenberg because it was based on a one-time

evaluation, and conflicted with both Robinson's

testimony and Dr. Sibley’s reports. See Magallanes v.

Bowen, 881 F. 2d 747,751 (9 Cir. 1989).

AFFIRMED.

7 |

Fs

;

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

X FILED LODGED

JUDGMENT IN A CIVIL CASE _RECEIVED_COPY

DEC 3 2001

CLERK U S$ DISTRICT COURT

DISTRICT OF ARIZONA

BY_JH___ DEPUTY

CIV 00-2042 PHX-JAT

Elaine Ruth Robinson,

)

)

)

)

Plaintiff( (s) , )

)

Vv. )

)

Commissioner, Social Security )

Administration, )

Defendant (s) , )

Jury Verdict. This action came before the

court for atrial by jury. The issues have been

tried and the jury has rendered its verdict.

XX Decision by Court. This action came for

consideration before the Court. The Issues

have been considered and a decision has been

rendered.

IT IS ORDERED AND ADJUDGED per the Court's

order of December 3, 2001 granting Defendant's

motion for summary judgment, this case is closed.

Plaintiff to take nothing.

December 3, 2001 RICHARD H. WEARE

Date District Court

Executive/Clerk

“s/ J hyatt”.

(By) Deputy Clerk

Cc: (all counsel)

APPENDIX B

_X FILED _ LODGED

___RECEIVED _ COPY

DEC 3 2001

CLERK U S DISTRICT COURT

DISTRICT OF ARIZONA

BY JH DEPUTY

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Elaine Ruth Robinson ) No.CIV-00-2042-PHX-JAT

)

Plaintiff, ) ORDER

Vs.

Commissioner, Social

Security Administration

Defendant.

Nee eee eee Se”

Pending before this Court is plaintiff's appeal from

a decision of the Commissioner of Social Security

establishing the disability onset date for purposes of

disability benefits under Title II of the Security Act

(“SSA”), 42 U.S.C.(double section) 401-433. Plaintiff

has filed a Motion for Summary Judgment (Doc. #21).

Defendant has filed a Cross-Motion for Summary

Judgment (Doc. #22). After reviewing the

submissions on file, the Court has determined that

the decision of the Commissioner should be affirmed.

9

I. Procedural History

In April 1997. Plaintiff tiled an application for Social

Security disability insurance benetits under Title II,

alleging disability due to multiple sclerosis (“MS”)

and a degenerative disk since November 30, 1992.

(“Transcript.”79). Upon reviewing plaintiff's

application, the Regional Commissioner determined

that the medical evidence did not establish Plaintiff's

condition until her examination in July 1997. Based on

the severity of plaintiff's condition and the agency's

prior experience with like conditions the

Commissioner set the onset date of Plaintiff's

disability at December 1, 1996. (Tr.60-61). This

decision was affirmed on reconsideration. (Tr. 59) On

January 8,, 1999, the administrative law judge

(“ALJ”) held a hearing on plaintiff's application. By

decision dated April 29, 1999, the ALJ determined the

claimant was not entitled to a disability onset date

earlier than December, 1996. (Tr. 22).

Plaintiff requested review of the ALJ's decision by

the Appeals Council. By action statement filed

August 23, 2000, the Appeals Council denied

Plaintiff's request for review. (Tr. 7-8). Having

exhausted her administrative review process, Plaintiff

appealed the final determination to this Court

pursuant to 42 U.S.C.Sec. 405(g).

On August 1, 2001, Plaintiff moved for summary

judgment or remand of her claim. (Doc. #21). On

September 4, 2001, Defendant filed a Cross-Motion for

Summary Judgment. (Doc.#22). Both motions are now

before this Court.

Il. Standard of Review

The commissioner's decision to deny benefits will

10

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be overtumed “only if it is not supported by

substantial evidence or is based on legal error.”

Magallanes v. Bowen,881 F.2d 747, 750 (9thCir. 1989).

Particularly, when reviewing a determination of a

disability onset date, this Court must resolve

‘"whether the chosen onset date is supported by

substantial evidence, not whether an earlier date

could have been supported’” Villa v. Heckler, 7977 F.2d

794, 79'7(9""°Cir.1986) (quoting Swanson v. Secretary of

Health & Human Servs.,763 F.2d 1061, 1065 (9thCir.

1985)). Substantial evidence is more than a mere

scintilla, but less than a preponderance. Reddick v.

Charter, 157 F.3d 715,720 (9 Cir. 1998).It is such

relevant evidence as a reasonable mind might accept

as adequate to support a conclusion. Id.

In determining whether there is substantial

evidence to support a decision, this Court considers

the record as a whole, weighing both the evidence

that supports the administrative law judge's

conclusions and the evidence that detracts from the

administrative law judge’s conclusions. Id. If there is

sufficient evidence to support the Commissioner's

determination, the Court cannot substitute its own

determination. See Young v. Sullivan. 911 F.2d 180,

184 (9 Cir. 1990). Additionally, the administrative

law judge is responsible for resolving conflicts in

medical testimony, determining credibility, and

resolving ambiguities. See Andrews v. Shalala, 53

F.3d 1035, 1039 (9 Cir.1995). Thus, if on the whole

record before this Court, substantial evidence

supports the Commissioner's decision, this Court

must affirm it. See Hammock v. Bowen, 879 F,2d 498,

501 (9thCir.1989); see also 42 U.S.C. Sec. 405(g).

Under the Social Security Act, a “disability” is

defined as an “inability to engage in any substantial

11

gainful activity by reason of any medically

determinable physical or mental impairment which

can be expected to result in death or which has

lasted or can be expected to last for a continuous

period of not less than 12 months.” 42 U.S.C. Sec. 423

(d)(1)(A). An individual is determined to be under a

disability if,” ...his physical or mental impairment or

impairments are of such severity that he is not only

unable to do his previous work but cannot,

considering his age, education, and work experience,

engage in any other kind of substantial gainful work

which exists in the national economy... " 42 U.S.C.

Sec. 423 (d)(2)(A); Reddick, 157 F.3d at 721. If the

claimant shows that he or she is unable to perform

past relevant work, the burden shifts to the

Commissioner to show that the claimant “...can

perform other substantial gainful work that exists in

the national economy.” Reddick, 157 F.3d at 721.

The ALJ determines an applicant's eligibility for

benefits by deciding the applicant's status with

respect to each of the following:

1. is the applicant currently engaged in

“substantial gainful activity”;

2. does the applicant have a “medically severe

impairment or combination of impairments";

3. does the applicant's impairment equal one of a

number of listed impairments that the

’ Commissioner acknowledged as so severe as to

preclude the applicant from engaging in

substantial gainful activity;

4. if the applicant’s impairment does not equal

12

one of the “listed impairments,” is the applicant

capable of performing his or her past relevant

work;

5. Ifthe applicant is not capable of performing his

or her past relevant work, is the applicant able

to perform other work in the national economy

considering his or her age, education, and work

expenence.

See Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987)

(citing 20 C.F.R. Sec 2 404.1520(b)-(f)). As noted

above, in analyzing step five, the burden shifts to the

Commissioner.

Ill. The Commissioner’s Findings

Plaintiff was born on August 4, 1934. She was

diagnosed with MS in 1963. (Tr. 31). She has a twelfth

grade education with prior work experience as a

secretary, office clerk, and most recently, as a clerk/

typist. (Tr. 127) Plaintiff worked and eamed

substantial wages from 1980 through 1992. (Tr. 86).

She alleges that her MS became disabling on

November 30, 1992, thus qualifying her for Social

Security disability benefits for a period commencing

on that date. (Tr. 79, 102).

A. Medical Evidence

During the years 1992 through 1996 plainfiff was

seen by several physicians for treatment. In January

1992, Dr. M.S. MacCollum, III, M.D., examined plaintiff

for back pain. Dr. MacCollum diagnosed Plaintiff as

having a mild lubosacral strain, but did not order any

change in Plaintiff's work status. (Tr. 164). By

February 5, 1992, Plaintiff's strain had improved and

Plaintiff had an “excellent range of motion.”(Tr. 163).

On March 13,1992, Plaintiff sought emergency

*

treatment because her stomach was “churning.” (Tr.

145). Based on Plaintiff's comments, the emergency

room physician determined that her condition was

the result of stress caused by work-place relations.

(Tr. 145). Ten days later on March 23, 1992, Dr.

Deborah Villa, M. D., Plaintiff's treating physician,

examined Plaintiff and diagnosed plaintiff's stress as

“situational”. prescribed medication and released

Plaintiff to return to work. (Tr.228). Dr. Villa also noted

Plaintiff was experiencing elbow pain due to a prior

injury. On March 30, 1992, Dr. W.A. Sibley, M.D. a

neurologist treating Plaintiff's MS since 1985,

examined Plaintiff. Dr. Sibley noted Plaintiff suffered

frequent incontinence and double vision on extreme

right lateral gaze. (Tr.150).Dr. Sibley'’s record also

states that at this time Plaintiff was not medically

disabled for work, had demonstrated an “above

average mental ability,” was not on any medications

and had not experienced any new attacks of Ms

within the past two years. (Tr. 150).

Subsequently, in April 1992 Plaintiff was again

examined by Dr. MacCollum. At this time Dr.

MacCollum noted that Plaintiff's back pain was

“completely resolved” and discharged Plaintiff from

further care relating to this condition. (Tr. 165). Dr.

MacCollum noted, however, that Plaintiff suffered

from right elbow pain due to a March 1991 injury.

(Tr. 169). In the same month, Dr. Jeffrey L. Comelia,

M_LD., Plaintiff's gynecologist, examined Plaintiff and

prescribed medication for her mild incontinence. (Tr.

191). Later on May 12, 1992, at Plaintiff's request, Dr.

Sibley wrote a letter to her employer expressly

stating that aside from short periods of exacerbation

and a few mild handicaps due to her condition,

14

Plaintiff “[h]as never been disabled for work.” (Tr.

149). On May 15, 1992, Plaintiff was examined by Dr.

Villa for stress and anxiety. Dr. Villa found no “clear

cut symptoms” and described the exam as

“unremarkable.” (Tr. 227). Plaintiff subsequently

underwent upper GI tests for a possible peptic ulcer

disease diagnosis. Plaintiff tested negative for peptic

ulcer disease diagnosis (Tr. 227). Plaintiff tested

negative for peptic ulcer disease, but was diagnosed

with a sliding hiatal hernia. (Tr.235). In August 1992,

Dr. Sibley assessed Plaintiff's gait, coordination,

sensory examination and mental state as “normal”,

her reflexes as “active” and stated that Plaintiff was

“la]symtomatic from a neurological standpoint.” (Tr.

148). Finally, in November 1992, Plaintiff returned to

Dr. MacCollum due to elbow limitations while

performing heavier activities. (Tr. 162).Dr.MacCollum

diagnosed with a “very mild permanent limitation,"

but noted Plaintiff was “capable of carrying out

lighter type office work which does not involve

repetitive lifting of objects greater than 10-15

pounds.” (Tr. 162).

Plaintiff's next medical exam occurred in May 1993,

when Plaintiff saw Dr. MacCollum for a knee abrasion

and elbow pain. (Tr. 161). Dr. MacCollum found that

Plaintiff did have tendemess over the medial

epicondoyle, but retained and excellent range of

motion. (Tr. 161). Additionally, although Plaintiff's

elbow had improved since her last visit, Dr.

MacCollum ordered some activity restrictions. (Tr.

161).

Later, on February 1, 1994, Dr. Sibley examined

Plaintiff after complaints of “zings”in her right arm.

(Tr. 147). In response, Dr. Sibley prescribed tegretol

15

For the the pain. (Tr.147). Dr.Sibley also noted that

plaintiff continued to suffer diplopia on extreme right

lateral gaze. (Tr. 147). Overall, Dr. Sibley

characterized the examination as “virtually normai”

and Plaintiff's MS as “static except for recurrent

paroxysmal phenomena.” (Tr.147).. In the same

month, Plaintiff suffered and injury to her left calf by a

grocery cart. (Tr.160). Plaintiff's injury healed with

minor residual tendemess. (Tr. 158). Plaintiff

S last visit with Dr. Sibley appearing in the record

was on August 30, 1994. Here, Dr. Sibley stated that

Plaintiff's MS was “in remission” and assessed he

gait, motor power and rapid succession movements

as “normal”. (Tr. 146). Dr. Sibley Stated, however,

that Plaintiff still experienced such symptoms as

occasional “zings” in her right arm, “mild medial

rectus weakness on left” and diplopia. (146-148).

In June 1995, Plaintiff was examined by Dr. Richard

C. Christensen, M.D. for lower back pain. (Tr. 157).

Dr. Christensen diagnosed a lumbar strain,

prescribed anti-inflammatory medication and

physical therapy. (Tr. 156, 157). In September 1995,

Plaintiff underwent her annual examination with

Dr.Comella reported that Plaintiff “has experienced

some MS symptoms in the right upper extremity, from

her description and has some difficulty bending

over.” (Tr. 198). Additionally, Dr. Comella noted that

Plaintiff suffered from urinary incontinence. (Tr. 198).

In May 1996, Plaintiff visited Dr. W.C. Brainard,

M.D., complaining of back pain, Dr. Brainard

diagnosed the pain as a recurrent back strain and

prescribed hot packs, anti-inflammatory medication

and physical therapy. (Tr.154)., Later in September

1996, Plaintiff returned to Dr. Comella for her annual

16

examination. (Tr.199, 217). At this time, Dr. Cornella

Observed that Plaintiff was “doing well,” had “no

particular complaints” and had “done very well in the

last year with multiple sclerosis.” (Tr. 199). Dr.

Comella also noted that Plaintiff “s urinary incon-

tinence was “stable” and that she “does very well

during the day in terms of her incontinence.” (Tr.

199). On December 20, 1996, Plaintiff was examined by

Dr. Villa for MS and heartburn. (Tr. 219). Dr. Villa

documented that Plaintiff's MS “isn’t giving her any

problems this year.” (Tr. 219).

B. Workshop Evaluation

On July 18, 1997, Plaintiff underwent a workshop

Evaluation by Richard W. Vandenberg. at the request

of the Disability Determination Service Adminis-

tration. for the State of Arizona. (Tr. 237-246). In his

report dated July 25, 1997, Mr. Vandenberg noted

that Plaintiff's performance was affected by such

factors as uninary incontinence, a “stumbling,

weaving, gait,” difficulty with reading

comprehension, compromised dexterities, problems

with communication and progressive fatigue. (Tr.

239). Mr. Vandenberg recorded that plaintiff

performed activities requiring hand-eye coordination

at a slow pace and could only type 27 words per

minute. (Tr. 239). Based upon her performance, Mr.

Vandenberg concluded Plaintiff was currently unable

to sustain employment. (Tr. 242-243). Additionally,

Mr. Vandenberg opined that Plaintiff had not been

able to sustain competitive employment since 1959.

(Tr. 242, 243)

The ALJ expressly rejected Mr. Vandenberg’s

opinion regarding Plaintiff's inability to work since

1959. The ALJ reasoned that the vocational

17

consultant's opinion was based on a one-time

evaluation of the claimant and conflicted with the

greater weight of the medical evidence, specifically

citing the medical records from Dr. Sibley. The ALJ

may give great deference to the opinion of a treating

physician because “he is employed to cure and has a

greater opportunity to know and observe the patient

as an individual.” See Morgan v. Commissioner of

Social security, 169 F. 3d 595, 600 (9" Cir. 1999)

(quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9*

Cir.1987).Thus, because Dr. Sibley had been Plaintiff's

treating physician for MS since 1985 and Mr.

Vandenberg’s opinion was conclusory, rather than

based on actual medical evidence of disability in 1959,

_ it was within the discretion of the ALJ to reject Mr.

Vandenberg’s testimony on this subject.

C. Plaintiff's Testimony

At the January 1999 hearing before the ALJ,

Plaintiff testified that she had been unable to work

5 since November 30, 1992 due to her MS. (Tr.30). Prior

to this date, Plaintiff confirmed that she worked for

Phoenix Union High School

District since 1980 and that her earnings her last year

of employment, 1992, totaled $17,000. She stated

that during the period in controversy her MS

exacerbations were manifested as pain in her right

arm and diplopia and that she was also on

medication for her MS. Additionally, Plaintiff reported

during 1992-1996 she had numbness in her fingertips

and had difficulty walking and lifting objects, and

experienced “zings” down her spine when she would

bow. Plaintiff stated that she did not have any trouble

sitting during the same period, nor did she have

18

problems cooking, bathing, dressing, sleeping or

completing household chores.

In deciding whether to accept subjective

complaints, the ALJ must perform the analysis

adopted in Cotton v. Bowen, 799 F.2d 1403 (9thCir.

1986), as a threshold matter. Smolen v. Chater, 80 F.3d

1273, 1281 (9thCir.1996). If the claimant produces

evidence to satisfy the Cotton test, the ALJ can reject

the claimant’s testimony on severity of symptoms

only by giving “specific, clear and convincing reasons

for doing so.” Id. Under Cotton, the claimant who

bases disability on subjective complaints must

produce objective medical evidence of an underlying

impairment (but not of the pain or fatigue) and must

show that the impairment or combination of

impairments reasonably could “produce some degree

of symptom.” Id. at 1281-82. The latter prong of the

test does not require evidence of a causal

relationship between the medically determinable

impairment and the alleged symptom or that the

impairment could reasonably be expected to produce

the severity of symptom alleged. Id. at 1282.

If the claimant meets the Cotton test, and no

evidence shows malingering, in order to reject her

testimony regarding the severity of symptoms, the

ALJ must specifically state clear and convincing

reasons and specify which symptom testimony is not

credible and what facts support the conclusion. Id. at

1284. In doing so, the ALJ may consider the

claimant’s reputation for truthfulness or

untruthfulness; any prior inconsistent or less than

candid statements; unexplained or inadequately

explained failure to seek or follow a course of

treatment; and claimant's daily activities. Id. The ALJ

19

must also consider the claimant’s work record;

observations regarding the nature, onset duration

and frequency of symptoms by treating and

examining physicians; triggering and aggravating

factors; and functional restrictions and symptoms. Id.

Here, the P'aintiff testified that her MS-related

conditions were so severe that she was precluded

from working by November 30, 1992. Plaintiff also

produced objective medical evidence of her diagnosis

of MS, which could reasonably produce such

symptoms. Based on the foregoing, Plaintiff satisfied

both prongs of the Cotton test. Thus to reject

Plaintiff's testimony that the exacerbations of MS

inhibited her continued employment, the ALJ was

required to state clear and convincing reasons

supported by specific facts. Reviewing the

administrative record, the Court finds the the this

requirement. The requirement. The ALJ made

express findings that the medical reports of Dr.

Sibley, written near the time of plaintiff's termination

of employment, rebutted Plaintiffs testimony

concerning the severity of her symptoms. Specifically,

the ALJ offered a detailed review of the letter Dr.

Sibley authored in May 1992 stating that Plaintiff's

employer had attempted to terminate her for poor job

performance and tried to induce her to take early

medical retirement. The ALJ notes, however, that Dr.

Sibley clearly stated in the letter that he was

convinced Plaintiff was not disabled. The ALJ also

cites Dr. Sibley’s examination on August 24, 1992,

which stated that Plaintiff was “asymptomatic from a

neurological standpoint” and exhibited “a normal

gait, coordination, and sensory reception.” (Tr. 21).

Thus, based on this evidence, the ALJ concluded that

20

plaintiffs cessation of work did not result from MS,

but” employment difficulties at a specific job location

and it would not necessarily be indicative of the

claimant's ability to perform the same type of job at

another location.” (Tr. 21). The ALJ therefore supplied

clear and convincing evidence supporting his

decision to disregard Plaintiff's testimony.

D. Testimony of the Vocational Expert

Additionally, Mark Kelman, a vocational expert,

testified at the hearing that Plaintiff's former position

as a clerk-typist was semi-skilled and of a sedentary

exertional level. Subsequently, the ALJ proposed

several hypotheticals describing an individual with

conditions similar to those of Plaintiff, but in varying

degrees. The ALJ relied on Mr. Kelman's opinion that

exacerbations in Plaintiff's MS would cause her to

occasionally miss work, but would not preclude her

from performing her past work as a clerk typist. (Tr.

49)..Mr.Kelman also stated, however, that an

individual with conditions consistent with those

testified to by Plaintiff would not be able to perform

her past relevant work as a clerk-typist, testimony

which the ALJ rejected. (Tr. 55).

E. The ALJ’s Decision

The ALJ issued a decision affirming the December

1, 1996 disability onset date. The ALJ found from the

entire record that (1) Plaintiff met the disability

insured status requirements of the Act on November

30, 1992 and continued to meet them through

December 31, 1997; (2) that Plaintiff had not engaged

in “substantial gainful activity” since November 30,

1992; (3) medical evidence established severe MS,

21

but not an impairment or combination of impairments

listed or medically equal to one listed in the

Regulations; (4) Plaintiff's allegations of a disabling

condition prior to December 1, 1996 were not

supported by the greater weight the medical

evidence; (5) Plaintiff has the residual functional

capacity to perform work related activities except for

work involving activities that exceed a sedentary

exertional level; (6) Plaintiff's past relevant work as a

clerk typist did not require the performance of work

related activities precluded by such limitation(s); (7)

Plaintiff's impairment did not prevent her from

performing her past relevant work prior to December

1, 1996; and (8) Plaintiff was not under a “disability”

as defined in the SSA, at any time through the date of

the decision. (Tr. 23). Not withstanding the finding

that plaintiff was not under a disability through the

date of his decision, the ALJ nevertheless sustained

the December 1, 1996, disability onset date. Although

the ALJ’s findings deem inconsistent this Court has

not been called upon to determine whether Plaintiff

was disabled at the time of the administrative

hearing in January 1999. Thus, this Court’s inquiry is

limited to whether Plaintiff was disabled prior to

December 1, 1996.

IV. Discussion

A. Disability Onset Date

The central issue before this Court is whether the

December 1, 1996, disability onset date is supported

by substantial evidence. As articulated above, the

Court's focus is limited to whether the onset date

actually chosen is supported by substantial evidence

and not whether an earlier date could nave been

22

supported. Villa v. Heckler, aat 797. Accordingly

reviewing the record in toto, the Court finds that

there is substantial evidence to sustain the December

1, 1996 as the onset date of plaintiff's disability.

First, surveying Plaintiff's medical records from

1992 to 1997, there is no indication that any physical

or mental impairment rendered Plaintiff disabled.

Throughout this period, Plaintiff sought the treatment

of multiple physicians specializing in various fields of

medicine, including neurology, gynecology and

orthopedic medicine. Yet, while the records clearly

demonstrate that Plaintiff suffered from consistent

physical ailments, both related and unrelated to MS,

plaintiffs condition was never diagnosed as

disabling. Particularly, in 992, the year Plaintiff

alleges disability, Dr. Sibley explicitly stated that

despite minor handicaps, Plaintiff was not disabled

nor unable to sustain full-time employment. Likewise,

The exam reports of Plaintiff's primary care physician

and gynecologist, Dr. Villa and Dr. Comella,

respectively, buttress this favorable characterization

of Plaintiff's annual examination in 1996, Dr. Cornella

recorded that Plaintiff “had no particular complaints”

and was doing “very well” with her MS. Similarly, as

late as December 1996, Dr. Villa noted that Plaintiff's

MS had not been a problem during the preceding

year. Altogether, the medical records are devoid of

evidence indicating that Plaintiff's MS had reached a

disabling level.

To be sure, the records clearly demonstrate that

Plaintiff did suffer from recurrent medical problems

during this period. Specifically, it is well documented

that Plaintiff suffered from MS-related conditions

such as “zings” of pain in her right arm, urinary

23

incontinence, and double vision, as well as non-MS

related problems, such as anxiety attacks, back

strains and elbow injuries. These conditions,

however, were not permanent nor at a level of

severity rendering Plaintiff disabled under Social

Security regulations. Thus, the medical evidence

compels the Court to conclude that Plaintiff was not

Disabled prior to 1996.

The first indication in the record of an onset of dis-

ability from MS is found in the workshop evaluation

administered in July 1997 by Mr. Vandenberg. After

an extensive battery of cognitive and skill tests. Mr.

Vandenberg concluded that Plaintiff's impaired motor

and communication abilities, coupled with fatigue

and incontinence, precluded her from engaging in

gainful employment at this time. (Tr. 242). This

evaluation provides the first clear evidence that

Plaintiff's MS had exacerbated to a disabling level.

Thus the medical records and vocational evaluation

narrow the period during which disability occurred

considerably, namely between December 1996 and

July 1997. Based on the July 1997 report, the

Commissioner adjudged Plaintiff disabled and

retroactively set the onset date of disability at

December 1, 1996 to account for the severity of

Plaintiff's symptoms. This date was subsequently

affirmed by the ALJ. After an appraisal of the entire

record, this Court finds that the medical evidence and

1997 vocational report reasonably lead to the selection

of December 1, 1966, as the disability onset date. As

stated above, the onset date must be supported by

substantial evidence, which is moye than a scintilla

but less than a preponderance of the evidence.

Applying this standard and reviewing the Record as

24

a whole, the Court find that the ALJ's selection of

December 1, 1966, as the onset date for Plaintiff's

disability was based on substantial evidence and will

therefore be sustained by this Court.

B. Plaintiff's Other Objections

In her motion for Summary Judgment, Plaintiff also

raises a series of objections to the Commissioner's

position, as set forth in the ALJ's report. Plaintiff first

objects to the ALJ's Stage Three findings that the

Plaintiff did not have an impairment equal to one that

the Commissioner acknowledges as so severe as to

automatically preclude Plaintiff from engaging in

substantial gainful activity. In her response brief,

Plaintiff specifically argues that she was conclusively

disabled under 20 a C.F.R. Sec 404.1520 (d) and listing

1109(c) of Appendix 1 of the regulations.(Doc. #22, 5-

6).

Section 404. 1520(d) provides that an individual

with an impairment that “meets or equals a listed

impairment in Appendix 1” is disabled. Listing 11.09

of Appendix 1 covers “Multiple Sclerosis.” Under

listing 11.09(c), MS constitutes an automatic disability

If it is accompanied with “[s]Jignificant,reproducible

Fatigue of motor function with substantial muscle

weakness on repetitive activity, demonstrated on

physical examination, resulting from neurological

dysfunction in areas of the central nervous system

known to be pathologically involved by the multiple

Sclerosis process.”

Examining the record, the Social Security

Administration found Plaintiff disabled under the

criteria set forth in listing 11.09(a),MS qualifies as

disabling when it includes “[d]Jisorganization of motor

25

function as described in 11.04B.” After concluding

that Plaintiff qualified as disabled under 11.09(a), the

Commissioner provided an allowance of seven

months to account for the severity of Plaintiff's

symptoms, effectively setting the onset date at *

December 1, 1966. Thus even if the Commissioner

would have found Plaintiff disabled under Listing

11.09(c), because this determination would be

- founded on the same piece of evidence, the disability

‘~ onset date would not be affected. Plaintiff's argument

therefore does not undermine the current disability

onset date of December 1, 1966.

Plaintiff also argues that the ALJ's decision was

erroneous because the judge failed to consider her

letter dated August 20, 1999. The ALJ's ‘lecision

issued April 29, 1999, however, predated the

Plaintiff's letter by four months. Thus the ALJ could

not have considered Plaintiff's statements in the

August 20" correspondence.

Next, Plaintiff disputes the ALJ’s determination

that she retained residual functional capacity to

perform work a sedentary exertional level pursuant

To 20 C.F.R.404.1545. Specifically, Plaintiff argues

that her “sensory requirements were put to the test”

after a photocopying machine was installed in her

office. (Doc.#21,6). Plaintiff alleges that the speed,

noise and heat of the copier aggravated her MS and

Made it impossible to carry out job duties, including

manning telephone calls and providing assistance to

others. (Doc. #21,7). Section 404.1545 provides the

1 The AlJ, however, found that Plaintiff

retained residual functional capacity to engage in

sedentary work and was therefore not disabled

26

q ner a

through the date of the decision. Despite this

conclusion, the ALJ sustained the disability onset

date established by SSA.

Criteria for assessing a claimant's residual funtiional

Capacity. Residual functional capacity is defined as

the activities a claimant can still perform despite her

Limitations. At the administrative hearing, Mr.

Kelman testified that despite Plaintiff's occasional

unsteady gait, exacerbations of MS in her right arm,

Incontinence and occasional absenteeism due to

such conditions, she would still be able to engage in

her past work. (TR. 49-50). In addition, Mr. Kelman

stated that despite Plaintiff's inability to work in

close proximity to heat-producing office equipment,

there would still be thousands of secretarial-type

jobs within Arizona where Plaintiff could be

employed. (Tr. 51-52). Thus based on the vocation

Expert's opinion, the AlJ reasonably concluded that

Plaintiff retained the residual functional capacity to

perform her past work prior to December 1, 1996.

Finally, Plaintiff objects to the ALJ’s classification

of her occupation as that of a “clerk-typist.” Instead,

Plaintiff asserts that based on the duties she

performed, the proper classification should have been

that of “administrative assistant.” The record

indicates that Mr.Kelman classified Plaintiff's former

occupation after a thorough review of Plaintiff's

vocational history. Mr. Kelman determined that

Plaintiff performed clerical work in various secretarial

capacities, including positions titled secretary I,

secretary II and clerk/typist. Despite the differing job

titles, Mr. Kelman stated that the Department of

27

Labor classifies both the secretary position and the

position as clerk typist as sedentary in exerational

demand. In his findings, the ALJ concluded that

Plaintiff retained residual functional capacity to

perform work related activities up to December, 1,

1996, provided that such activities do not exceed a

Sedentary exertional level. (Tr. 23). Thus the AlJ’s

Decision would not be altered had Plaintiff’ been

classified as a secretary; rather than a clerk typist.

V. Conclusion

Because the findings of the administrative law

judge are supported by substantial evidence, the

decision of the administrative law judge will be

affirmed. Accordingly, ‘°

IT IS ORDERED that Plaintiff's Motion for

Summary Judgment (Doc. #21) is denied;

IT IS FURTHER ORDERED that Defendant;s

Cross-Motion for Summary Judgment (Doc. #39) is

granted.

DATED this 30 day of November, 2001

“s/ “

James A. Teilborg

United States District Judge

28

APPENDIX C

20 C.F.R. , Subpart P of Part 404-Appendix | Listing

Of Impairments

Neurological (11..00)

C. Persistent disorganization of motor function in the

form of paresis or paralysis, tremor or other

involuntary movements, ataxia and sensory

disturbances (any or all of which may be due to

cerebral cerbellar, brain stem, spinal cord, or

peripheral nerve dysfunction which occur singly or in

various combination, frequently provides the sole or

partial basis for decision in case of neurological

impairment. The assessment of impairment depends

on the degree of interference with locomotion and/or

interference with the use of fingers, hands, and arms

D. In conditions which are episodic in character, such

as multiple sclerosis or myasthenia gravis

consideration should be given to frequency and

duration of exacerbations, length of remissions, and

permanent residuals.

E. Multiple sclerosis, The major criteria for evaluating

impairment caused by multiple sclerosis are

discussed in listing 11.09. Paragraph A provides

criteria for evaluating disorganization of motor

function and gives reference to 11.04B (1104B then

refers to 11.0C). Paragraph B provides references to

other listings for evaluating visual or mental

impairments caused by multiple sclerosis. Paragraph

C provides criteria for evaluating activity as a result

of fatigue. .

Use of criteria 1in 11.09C is dependent upon (1)

29

documenting a diagnosis of multiple sclerosis, (2) - -»

obtaining a description of fatigue considered to be

characteristic of multiple sclerosis, and (3) obtaining

evidence that the system has actually become

fatigued. The evaluation of the magnitude of the

impairment must consider the degree of exercise

and the severity of the resulting muscle weakness.

The criteria in 11.09C deals with motor abnormalities

which occur on activity. If the disorganization of

motor function is present at rest, paragraph A must

be used, taking into account any further increase in

muscle weakness r2esting from activity. The

Sensory abnormalities may occur. particularly

involving central visual acuity. The decrasse in... we

visual acuity may occur after brief attempts at

decrease in visual acuity may occur after brief

attempts at activity involving near vision such as

reading. This decrease in visual acuity may not with

rest, but is predictably reproduced with resumption

of the activity. The impairment of central visual acuity

in these cases should be evaluated under the criteria

in listing 2.0 taking into account the fact that the

decrease in visual acuity will wax and wane.

Clarification of the evidence regarding central

nervous system dysfunction responsible for the

symptoms may require supporting technical evidence

of functional impairment such as evoked response

tests during exercise.

11.01 Category of impairments,

Neurological...

11.09 Multiple sclerosis. With:

A. Disorganization of Motor function as described in

11.04B; or (11.09 B. cont’d below)

11.04 B. Significant and persistent disorganization of

30

motor function in two extremities resulting in sustained

disturbance of gross and dexterous movements, or gait

and station (see 11.00C).

11.00

C. Persistent disorganization of motor function in

the form of paresis or paralysis, tremor or other

involuntary movements, ataxia and sensory

disturbances (any or all of which may be due to

cerebral cerebellar, brain stem, spinal cord, or

peripheral nerve dysfunction) which occur singly or in

various combination, frequently provides the sole or

partial basis for decision in cases of neurological

impairment. The assessment of impairment depends

on the degree of interference with locomotion and/or

interference with the use of fingers. Hands, and arms.

11.09 (B) (cont'd)

B. Visual or mental impairment as described under

the criteria in 2.02, 2.03, 2.04, or 12.02; or

C. Significant, reproducible fatigue or motor

function with substantial muscle weakness on

3repetitive activity, demonstrated on physical

examination resulting from neurological dysfunction

in areas of the central nervous system known to be

pathologically involved by the multiple sclerosis

process.

31

In Parish v. Califano F 2d 188-193 (6™ Cir. 1981)

Honorable Judge Comelia Kennedy very clearly ruled

on how aclaimant such as Patricia Parish could be

grossly misdiagnosed with the mysteries of the

Multiple Sclerosis Syndrome by the legal, medical,

employment, and personal. Such has happened to

me.

In accord with Rule Number 10,Supreme Court of

The United States The United States Court Of

Appeals For The Ninth Circuit has entered a decision

in conflict with a decision with The United States

Court of Appeals for the 6th Circuit Of Appeals, I too

was misunderstood with the same medical pattern

as with Patricia Parish.in that important question(s)

beg a decision from this Court. The ALJ in my case

was similar to Parish refusing and rejecting Subpart

P, as produced in Appendix C. The ALJ and the

Commissioner and her legal staff refuse to recognize

what Judge Comelia Kennedy ruled about multiple

sclerosis patients. If it so please this honorable court

to not allow a “legal” description and other medical

terms and cases which are not relevant to the

multiple sclerosis syndrome.. Even the medical field

cannot understand multiple sclerosis and have a

definitive explanation to explain multiple sclerosis

impairments. Therefore neurological diagnoses

already codified by the SSA, should be at least the

basis for determining multiple sclerosis disability

recipients, not rules and procedures used for curable

medical modalities. As depicted above-I have

completely produced in it s entirety in APPENDIX C

for ease of your perusal.

If it please the Court I would like to enter some

additional data already found ir the record but not

APPENDIX D 32

clarified verbatim. Please help by listening to the

outright terrorizing experience I underwent working

for the school district and trying to educate those who

are ignorant of this mystery disease.

. The employer is not a “social worker” they require

performance-multiple sclerosis cannot have a time

stamp placed on consistent performance edicts.

Judge Kennedy depicted what the AlJ not only erred

in Parish but, also the ALJ in my case approached

my case like a claimant who has a “curable“ disease.

Parish v. Califano F .2d 19.5 (6 Cir. 1981.);

...In conditions which are episodic in character,

such as multiple sclerosis. or myasthenia gravis

consideration should be given to frequency and

duration of exacerbations, length of remissions and

permanent residuals...

In accord with Rule 14(g) (i) (vi) other materiel I

believe essential to understand the total facts in the

hearing follows.

On my hearing of January 8, 1999, the ALJ reported

only one instance of my being able to return to my

previous employment per vocational expert Mark

Kellman: (TR. 1/9/99)

*Hypothetical #1 VE-Could not return to work

(TR.47,48)

*Hypothetical #2 VE-Could return to work

(TR. 48, 49,

*Hypothetical #3 VE-Could not return to work

(TR. 50)

33

Hypothetical question # 2 was not all inclusive of

my ability to return to work.

Final Question on whether I was able to return to my

former employment-the truth: (Tr. 55.,56):

CLMT: My doctor wouldn't hire me he said

because, “I expect you to work eight hours period.”

Eight hours.

ALJ: So -- well let him (Mark Kellman Voc. Ex.)

answer the question that --

CLMT: So what's the question

ALJ: -- I think it was a good question that you

tried to -- I tried to rephrase for you which I thought

was a good question. I, I, l would have let him answer

it. Based on the way the claimant testified today of

her limitations with regard to her abilities to perform

daily activities and her- - and what she was able to

do as to activities such as sit stand, walk, and bend,

stoop etc. Would such an -- would an individual such

as the claimant be able to perform her past relevant

work from what you've heard today?

VE: No

ALJ: Okay. I think that’s the question you

wanted to ask.

CLMT: You answered it. Yes I think that’s what

it was.

ALJ: Okay Is there anything else? Don’t worry

about the water.

CLMT: Weill, it’s coming on to my paper.

ALJ: Oh, okay. .

CLMT: I worry about that.

ALJ: Anything else?

CLMT: I think we've pretty well covered it.

ALJ: Okay Why don't you -- okay. I think you --

okay. Anything else you want to tell me that you

haven't covered so far? I think I understand your

34

Situation.

CLMT: I think, I think we understand the

situation. All of us... (END OF HEARING)

Three out of four “NO's are not a preponderance of

evidence that I could return to my former employment

for “four years”(December 1992 thru December 1996.)

At the conclusion of the hearing I was able to ask the

right question that was directly related to my work

responsibilities: We all agreed I could not return to

my former employment!

In January of 1991 the school principal “terrorized”

me with incessantly saying he was going to

“terminate me.” These verbal threats and being

demoted and changed in employment from a

secretary II to “clerk typist.” In hearing with the ALJ

the vocational expert stated that I was a clerk typlist

in “87-88” (TR 46,47) I was demoted and placed from

a 10 month contract to a 12 month contract with less

income at was a demotion.

These medical facts are quoted verbatim from

PLAINTIFF'S REPLY MEMORANDUM TO

DEFENDANT'S CROSS-MOTION FOR SUMMARY

JUDGMENT; (P. 2 L 31-35):

“I too was in an exacerbation prior to 1-30-90 (TR

150) and I was in remission from 1-30-90 (“no MS

attacks in past 2 years”) Dr. Sibley present session

3/30/92...“ while she has some medical handicaps

from MS:; frequent incontinence making it necessary

for her to wear adult diapers, and mild left medial

rectus weakness with tendency to double vision

extreme right lateral gaze...she needs help from her

(P. 3L. 1-4

35

union and possibly an attorney to investigate

whether she is being discriminated against because

of her age (57) and medical handicaps...I too wanted

to work like Parish and Wilcox. Also my multiple

sclerosis was progressively worsening because of the

Phoenix Union High School System aggravating my

medical condition...

(L 16-25)

...”In November 30, 1992 the Phoenix Union High

School Board terminated me. I was threatened with

termination in January of 1991 by the principal. In

March 22, 1991 after I tripped over a telephone in the

admissions office, and broke my right elbow (my MS

chronic sharp pains elbow., (Industrial Cl Nr. 92-0357,

State Compensation Fund.) On 1-10-92 I injured my

cback trying to move some files into a cabinet

(Industrial cl Nr. 92-03509 State Compensation Fund),

I still tried to work. Tr. 165 Dr. Mac Collum III MD.

Orthopaedic Surgeon 4-1-92 ...Ms. Robinson is having

persistent problems about the elbow in two areas she

is still having her medial epicondylar pain but now is

having more pain over the flexor wad and anterior

radiual humneral joint...Ms. Robinson is having

persistent problems which-

(P, 3. L. 1-4)

union and possibly an attorney to investigate

whether she is being discriminated against because

of her age (57) and medical handicaps,,,I too wanted

to work like Parish and Wilcox. Also my multiple

sclerosis was progressively worsening because of the

Phoenix Union High School System aggravating my

medical condition...

36

I followed their advice and did seek and paid for

legal council from an attorney, but, was to no

avail.

With over 250 charges against me I had no choice but

to retire early and as always with multiple

sclerosis with greatly reduced benefits. My whole

termination was sealed and not to be discussed or to

be opened-per school district’s counsel.

During my attempts to work as efficiently as

possible, I sought the support of Dr. Sibley on my

limited career, especially when the principal would

constantly threaten me with “termination ." As the

victim of a progressive debilitating disease that was

very depressing his abject behavior to my person. Of

my medical reports from November 1992 thru

December of 1996 of course would improve- I was

unable to work and did not work, gone were the

irritants of work that were aggravating my medical

condition-I remained in my home and still required

medical care and assistance-again I was not cured of

multiple sclerosis.

37

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Elaine Ruth Robinson

Date:fumo Za0b9

38