# Petition for Writ of Certiorari — Robinson v. Barnhart

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 821

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1676%3A1. Public record. Not legal advice.