Appendix — Richardson v. Perales

IN THE

Supreme Court of the United Staten

OCTOBER TERM, 1970

No. 108

ELLIOTT L. RICHARDSON, SECRETARY OF

HEALTH, EDUCATION AND WELFARE,

Petitioner,

em Yee

PEDRO PERALES

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

INDEX TO APPENDIX

Page

Judicial Proceedings:

Relevant Docket Entries 1

In the United States District Court for the Western District

of Texas:

Plaintiff’s Complaint

Defendant’s Answer

Defendant’s Motion for Summary Judgment

Plaintiff's Motion for Summary Judgment

Transcript of Hearing on Motions

Order Remanding Case

Memorandum Opinion

Opinion—United States Court of Appeals for the Fifth

Circuit

Opinion Denying 1 States Court of Appeals

for the Fifth Circuit

EF F BSE O ew

ii

INDEX (Continued)

Judgment—United States Court of Appeals for the Fifth

Circuit

Order of Supreme Court Granting Certiorari, filed April

20, 1970

Order of Supreme Court Granting Respondent’s Motion for

leave to proceed in forma pauperis

Record of Proceedings Before the Social Security Adminis-

tration, Department of Health, Education and Welfare:

Notice of Hearing —

“Transcript of Hearing January 12, 1967

“Transcript of Supplemental Hearing March 31, 1967 —

List of Exhibits

Exhibits Introduced at Hearings:

* The

Letter of June 16, 1966 denying claim

Notice of Reconsideration Determination, Oc-

tober 20, 1966

Nix Memorial Hospital Records, November 1965,

January 1966

Report of Max Morales, Jr., M.D., June 7, 1966 —

Santa Rosa Hospital and Medical Center Records,

April-May, 1966

Report of John H. Langston, M.D., May 81, 1966 _

Report of Max Morales, Jr., M. D., to State De-

partment of Public Welfare, July 23, 1968

Report of Max Morales, Jr., M.D., August 17,

1966

Report of James M. Bailey, M.D., August 30,

1966 ____

Case Development Sheet, by Howard Moses,

M.D., October 11, 1966

Report of John H. Langston, M.D., December

28, 1966

161

167

171

175

178

181

186

189

191

pages of the transcripts of the two hearings carry two

sets of numbers in the original—one set reflecting the internal

on of the transcripts and one set reflecting the pagination

of the transcripts within the entire administrative

portions of the transcripts which are reproduced in thi

contain a bracketed reference to the latter set of numbers.

record. Those

s Appendix

INDEX (Continued) ili

Page

Record of Proceedings Before the Social Security Adminis-

E Ce eee

—Continued

‘Exhibits Introduced at Hearings :—Continued

20. Report of Richard H. Mattson, M.D., December

17, 1966

21. Santa Rosa Medical Center X-Ray Report of

A. Thaggard, M.D., April 24, 198898

25. Reports of Ralph A. Munslow, M.D., March 9,

May 10, May 19, 1966

26. Report of Morris H. Lampert, M.D., May 8,

1966

27. — ee ee ees Leavitt,

D.

27a. Report of Ralph A. Munslow, M. D., February 1,

1966

28. Report of Ralph Munslow, M.D., January 3,

1966

29. Report of Ralph A. Munslow, M.D., November

22, 1965

30. Report of Ralph A. Munslow, M.D., November

12, 1965

Hearing Examiner’s Decision, May 12, 1967

Letter, with Enclosure, from Claimant’s Counsel to

Hearing Examiner, May 24, 1967

Ex. AC-1. Report of Coyle W. Williams, M.D., De-

cember 28, 1966

Letter, with Enclosures, from Claimant’s Counsel to

Appeals Council, June 16, 1967

Ex. AC-2. Judgment in State Court Workmen's

Compensation Case, June 2, 1967

Requested Changes in Transcript of Administrative

Hearing

Affidavit of Irene B. Greene

Order of Appeals Council

Action of Appeals Council on Request for Review, July

20, 1967

RELEVANT DOCKET ENTRIES

No. 67-77-SA in the United States District

Court for the Western District of Texas

Date Filings—Proceedings

1967

August 17 Complaint to Set Aside Decision Under

Social Security Act, filed

October 11 Answer, filed

October 11 Transcript of Record of Proceedings,

filed

December 21 Defendant's Motion for Summary

Judgment, filed

1968

January 15 Plaintiff’s Motion for Summary Judg-

ment and Answer to Defendant’s

Motion for Summary Judgment,

filed

February 18 Hearing on Motions for Summary

Judgment—Court ordered case be

sent back to a hearing examiner for

another hearing and decision—Mo-

tions for Summary Judgment denied

—decision of Sec. HEW reversed ...

February 13 Order of Court Remanding Case, filed.

March 13 Transcript of Hearing on Motions for

Summary Judgment 2-13-68, filed

April 8 Notice of Appeal to the Court of Ap-

peals for the Fifth Circuit, filed

August 13 Memorandum Opinion of Court, filed

No. 26238 in the United States Court of Wen

for the Fifth Circuit

Date Filings— Proceedings

1968

August 12 Appellee’s Motion to Dismiss Appeal

filed

August 26 Appellant’s Opposition to Motion to

Dismiss Appeal filed

August 27 Appellee’s Reply filed

September 16 Order of Court that Motion to Dismiss

Be Carried with the Case filed

1969

May 1 Opinion of the Court of Appeals

May 1 Judgment of the Court of Appeals

October 10 Opinion of the Court of Appeals Deny-

ing Rehearing

October 22 Judgment of the Court of Appeals

Issued as Mandate

No. 1302 in the United States Supreme Court

1969

December 30 Order extending time to file petition

for a writ of certiorari to March 9,

1970

1970

March 9 Petition filed

April 6 Brief in Opposition filed

April 20 Order of Supreme Court granting cer-

tiorari

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

Civil Action No, 67-77-SA

PEDRO PERALES

vs.

JOHN W. GARDNER, Secretary of

Health, Education and Welfare

COMPLAINT TO SET ASIDE DECISION

UNDER SociaL SEcuRITY AcT

TO THE HONORABLE JUDGE OF SAID COURT:.

COMES NOW the Plaintiff, PEDRO PERALES, and

respectfully represents to the Court as follows:

I,

Jurisdiction of this Court is sought under the provi-

sions of Title 42, Section 405(g), United States Code,

(42 U.S.C.A. Sec. 405(g)) and constitutes an appeal

from the decision of the Referee of the United States

Department of Health, Education and Welfare, Social

Security Administration, holding that Plaintiff is not

totally and permanently disabled within the provisions

of the Social Security Act.

-- II.

This action is commenced within sixty (60) days from

the date Plaintiff was notified by JOHN T. ALLEN, and

LUCILLE V. COVEY, Members of Appeals Council, in

the case of: PEDRO PERALES, Claimant, PEDRO

PERALES, Wage Earner, Social Security Account No.

465-38-6398, enclosing copy of Appeals Council’s denial

of his request for review of the Hearing Examiner’s de-

5

WHEREFORE, the Plaintiff prays that the Federal

Security Administrator, Defendant herein, may be re-

quired to answer this complaint and to file a certified

copy of the transcript of the record including the evi-

dence upon which the said findings and decision are based,

and that the said decision of the Appeals Council may

be reviewed, reversed and set aside and the claims of

the Plaintiff for primary insurance benefits be allowed

and the Bureau of Old-Age and Survivors Insurance and

the Federal Security Administrator ordered to make pay-

ment of the claim of the Plaintiff and that the Plaintiff

may have such other and further relief in the premises

as to the Court appear just and proper.

TINSMAN & CUNNINGHAM

1907 National Bank of

Commerce Bldg.

San Antonio, Texas 78205

By /s/ Richard Tinsman

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

(Title Omitted in Printing]

ANSWER

Now comes the defendant, acting by and through the

United States Attorney for the Western District of

Texas, and by way of answer to plaintiff’s complaint

would show the Court as follows:

L

The defendant admits the allegations contained in para-

graph I of plaintiff’s complaint.

II.

The defendant admits the allegations contained in para-

graph II of plaintiff's complaint.

III.

The defendant admits the allegations contained in para-

graph III of plaintiff's complaint.

IV.

The defendant admits the allegations contained in para-

graph IV of plaintiff's complaint, except to state that

the decision of the hearing examiner was rendered on

May 12, 1967.

V.

The defendant admits the allegations contained in para-

graph V of the plaintiff’s complaint.

VI.

The defendant denies the allegations contained in para-

graph VI of plaintiff’s complaint.

VII.

The defendant denies the allegations contained in para-

graph VII of plaintiff’s complaint.

VIII.

The defendant further states that the findings of fact

of the Secretary of Health, Education and Welfare are

supported by substantial evidence and are conclustive.

In accordance with the provisions of Section 205 (g)

of the Social Security Act, as amended (42 U. S. C.

405 (g)), defendant files herein as part of this answer

a certified copy of the transcript of the record including

the evidence upon which the findings and decisions com-

plained of are based.

WHEREFORE, defendant prays for judgment dismiss-

ing the complaint with costs and disbursements, and for

judgment in accordance with Section 205 (g) of the So-

cial Security Act, as amended (42 U. S. C. 405 (g))

affirming the decision complained of.

ERNEST MORGAN

United States Attorney

By: /s/ Andrew L. Jefferson, Jr.

Assistant U. S. Attorney

Post Office Box 1701

San Antonio, Texas 78206

[Certificate of Service Omitted in Printing]

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

[Title Omitted in Printing]

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Comes now John W. Gardner, Secretary of Health,

Education and Welfare, defendant herein, acting by and

through the United States Attorney for the Western

District of Texas, and moves this Honorable Court under

Rule 56, Federal Rules Of Civil Procedure, to enter

Summary Judgment in favor of the defendant herein on

the grounds that the pleadings and the attached Brief

show that the defendant is entitled to Summary Judg-

ment as a matter of law.

ERNEST MORGAN

United States Attorney

By: /s/ Ted Butler

Assistant U. S. Attorney

Post Office Box 1701

San Antonio, Texas 78206

[Certificate of Service Omitted in Printing]

PE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

{Title Omitted in Printing]

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND

ANSWER TO DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

Comes now PEDRO PERALES, Plaintiff herein, and

moves this Honorable Court under Rule 56, Federal Rules

of Civil Procedure, to enter Summary Judgment in favor

of the Plaintiff and to deny Defendant’s Motion for Sum-

mary Judgment on the grounds that the Secretary of

Health, Education and Welfare’s decision was not sup-

ported by substantial evidence when it failed to evaluate

new medical evidence of disability submitted by the

Claimant to the Appeals Council subsequent to the Hear-

ing Examiner’s decision; on the grounds that the Hear-

ing Examiner committed error in applying the wrong

legal standards to the facts in this case as to the burden

of proof; on the grounds that the Hearing Examiner

committed error in applying the wrong legal standards

as to type of evidence required to show disability, and

if they were supplied, that they were not supported by

substantial evidence; and in view of the evidence in this

case overwhelmingly showing that Plaintiff is disabled

within the meaning of the Act and the Secretary’s deci-

sion to the contrary is not supported by substantial evi-

dence, accordingly Plaintiff moves that his Motion for

Summary Judgment be granted and Defendant’s Motion

for Summary Judgment be denied, and that this case be

remanded to the Secretary with directions that the Plain-

tiff be granted a period of disability and disability in-

surance, and the Plaintiff’s attorneys be awarded attor-

ney’s fees commensurate with the time they have put into

10

this case in the Federal Court plus the time they have

put into this case before the Secretary.

ANTHONY J. FERRO

812 San Antonio Savings

Building

San Antonio, Texas 78205

TINSMAN & CUNNINGHAM

1907 National Bank of

Commerce Bldg.

San Antonio, Texas 78205

By /s/ Michael B. Hunter

Attorneys for Plaintiff

[Certificate of Service Omitted in Printing]

eS

11

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

[Title Omitted in Printing]

MOTIONS FOR SUMMARY JUDGMENT, 2-13-68

APPEARANCES:

Mr, MICHAEL HUNTER,

National Bank of Commerce Bldg.,

San Antonio, Texas,

Appearing for the Plaintiff;

MR. WARREN WEI,

United States Attorneys Office,

San Antonio, Texas,

Appearing for the Defendant.

BE IT REMEMBERED that, heretofore, to-wit: on

the 13th day of February, 1968, there came on for hear-

ing the above styled and numbered cause before The

Honorable Adrian A. Spears, Chief Judge, United States

District Court, Western District of Texas, at which time

the following proceedings were had:

THE COURT: Good morning, gentlemen, I will call

civil number 67-77-SA, Pedro Perales, plaintiff, vs. John

M. Gardner, Secretary of Health, Education, and Wel-

fare.

I can say to you gentlemen that I have read the briefs

and also read the record in the case. I would like to hear

from the Government counsel first on the basic proposi-

[fol. 2] tion of whether or not this man got a fair hear-

ing, not on any question of substantial evidence or lack

of it, but just on the basic, threshhold question as to

whether or not fundamental fair play was accorded, and

I think, in that connection, you might give me your reac-

tion to the position that this court has taken several

times, now, in these cases, particularly where some so-

called medical advisor is brought in and the hearing

examiner obviously defers to the medical examiner or

12

the medical advisor, and it is perfectly obvious in this

case that his findings parroted almost word for word

the conclusions reached by this medical advisor, who ad-

mittedly did not examine the plaintiff, had never seen

him professionally or at all before he went to the hear-

ing, and the reaction that I get from that sort of thing

is nausea, because, in the first place, I think that hear-

say evidence in the nature of ex parte statements of

doctors on the critical issue of a man’s present physical

condition is just a violation of the concept with which

I am familiar and which bears upon the issue of funda-

mental fair play in a hearing.

Then, when you pyramid hearsay from a so-called

medical advisor, who, himself, has never examined the

man who claims benefits, then you just compound it—

compound a situation that I simply cannot tolerate in

my own mind, and I can’t see why a hearing examiner

wants to abrogate his duty and his responsibility and

[fol. 3] turn it over to some medical advisor.

As I have said from the bench before in these cases,

I can listen to a doctor testify, and I think that I am

capable, after he has been fully examined, to determine

whether or not in my own mind I can give any weight

or great weight to this testimony. I think a jury can

do it and they do do it every day, but I think the person

to interpret is the doctor who made the examination,

who made the report, and not some stranger from Hous-

ton to come over and interpret what the San Antonio

doctors have to say.

Now, I think that if a doctor is going to testify, his

testimony is going to be relied upon by either side, and

if both sides don’t agree that his ex parte statement may

be received in evidence, then I think the duty devolves

upon which ever side wants him to get him there and

let him be subjected to cross examination, which, to me,

is the greatest single thing in the adversary procedure.

I have seen people on direct examination give testimony

that was unimpeachable, only to be shown up on cross-

examination as a virtual fraud. I am not suggesting that

any of these doctors are frauds. I know they are not.

I know all of the doctors are fine men and certainly are

—

13

respected in their profession, but I don't think —I think

a doctor would be the last one to contend that his science

is a certain one. Medical science is not definite and cer-

tain.

fol. 41 I am sure that this doctor who came over from

Houston is a very capable man and, no doubt, if he were

testifying in any court, considering his background, I

would give his views considerable credence, but I would

certainly want to have him examine the man. I would

not object to him considering what other doctors have

said, I would not object to him reading medical reports

from other doctors, but I would want to test his knowl-

edge on the basis, not of the medical reports he had read,

but of his own examination, his own conclusions which

are arrived at after he had made his own independent

judgment as to what had taken place.

Now, this concept is not new. This is not something

that I am imposing upon the Secretary of Health, Edu-

cation and Welfare. This has been a part of our system

and a part of our jurisprudence for many, many years.

It happens in many of these cases that informalities

are observed to the point where a lot of extraneous mat-

ter comes in without objection. Maybe both sides are

perfectly willing to do it. I know I never represented a

client that way. I had many of them before administra-

tive agencies. I never let everything plus the kitchen

sink come in unless it came in over my objection.

I noticed in this record that Mr. Tinsman, who repre-

sented this man, objected from the very beginning. He

objected and he told the hearing examiner that it was

[fol. 5] this Court’s attitude—and he used the name of

the court—that objections should be made, I think—al-

though I can’t assume this, but it seems to me apparent

from reading the record—that the hearing examiner was

perfectly well acquainted with this Court’s attitude, The

reason I think he must have been is not only because Mr.

Tinsman in effect told him, but also because, On De-

cember 14, 1966, which was about a month before this

hearing was conducted, in January, 1967, and certainly

a considerable time before the supplemental hearing was

conducted on March 31, 1967, this Court had entered an

14

order in Civil Number 3356 styled Joseph C. Grant vs

the Secretary of Health, Education, and Welfare, where

the matter was remanded to the Secretary for further

hearing because of the fact that a doctor Oates, who

had never examined the plaintiff in that case, was per-

mitted to interpret what other doctors had said in their

written reports.

Now, gentlemen, as I say, this is all so completely con-

trary to every concept that this Court has of a fair

hearing that I can’t possibly let a situation like this

stand without sending it back for a review or a new

hearing. I think the substantial evidence rule is a vicious

thing anyway. I am not prepared to say that it should

not be a part of our system; I have my doubts about it,

but whether I like it or not I have to recognize that it’s

the law and I am prepared to follow it, even though I

[fol. 6] may have reservations about it, and I feel that

it has the effect in many instances—well, in every in-

stance—of depriving an individual to a right to trial by

jury and all the other things that we recognize as safe-

guards in our system, but before I am going to apply

the substantial evidence rule to a case, I want to be sure

that the initial hearing has been conducted in an atmos-

phere of fairness to the point where I can say to myself,

in reviewing the matter, “Well, there is no question about

the fact that the petitioner or the plaintiff received a

fair hearing and the examiner arrived at this conclusion

and there is this evidence in the record to substantiate

his conclusion, even though I may not agree with his

conclusion.” I think that if he arrives at the conclusion

after he has conducted a fair hearing, then the court

is bound by his conclusion if it is reasonably supported

by substantial evidence and the Court cannot substitute

its judgment for that of the hearing examiner.

I recognize those basic provisions of our law; as I

say, whether I agree with it or not, I just have to follow

them, but I get back to the initial proposition: I think

a hearing which produces this substantial evidence should

be—even though informal—I am not suggesting that the

Secretary or his hearing examiners should conduct formal

trials, but I think even with the informality there are

15

certain basic concepts of fundamental fair play that have

[fol. 7] to be observed, otherwise our Government can

very easily fall into the pattern of government by men

rather than government by law, and I don’t think that

a hearing examiner ought to abrogate his authority and

his power.

It is not the duty of some medical advisor to come in

and interpret for him. He ought to be intelligent enough

to decide for himself after he has received the right kind

of interpretations from the people who made the reports,

and I have tried to make that clear that this is not un-

reasonable to expect them to do that.

Now, if he wants to call in medical advisors, he can

do it, but I think before this medical advisor should open

his mouth he should examine the man and arrive at his

own conclusion about what the condition of the man is,

and if the hearing examiner feels that this man is, that

his testimony is entitled to more credence than other

doctors in the case, I don’t know what the court can do

about it, or that the court would be inclined to do any-

thing about it.

I tell you, I think if the hearing examiner is going

to have a medical advisor, the Government can just save

money and just send the medical advisor and leave the

examiner at home, Then they don’t have to pay but one

of them to make a decision, but you can look at the tes-

timony of Dr. Leavitt and look at the findings made by

the hearing examiner and it is perfectly obvious that the

(fol. 8] man who made the findings in the case was Dr.

Leavitt.

All the hearing examiner did was sign his name to

it—I mean, as far as the man’s physical condition was

concerned.

Now, in this case, Dr. Morales, who was the plaintiff's

personal physician, is the only doctor who testified. Mr.

Tinsman objected to the ex parte statements from other

doctors in the case, some of whom gave opinions and

reports adverse to the plaintiff’s interest. The hearing

examiner indicated in one portion of the transcript, in

the early portion, that he was not going to—that some

of these things really were not of any consequence, had

16

no significance, but that is not the way he ended up,

because he ended up giving great significance—in fact,

almost exclusive significance—to the hearsay testimony

of Dr, Leavitt, which was, as I say, compounded hearsay

because it was hearsay on hearsay. I don’t know where

that could end. We'd probably have somebody coming in

and interpreting by hearsay what Dr. Leavitt testified

to on the basis of the ex parte reports he had read, and

maybe somebody else coming in and testifying what he

thinks about the testimony of the doctor who interpreted

Dr. Leavitt’s testimony on the basis of ex parte state-

ments made by the doctor. Where would it end? So it

is not my desire to keep sending these cases back to the

Secretary, and it may be that the plaintiff is not entitled

to anything—I don’t know—but I am just not prepared

to take the record of this kind and apply the substantial

[fol. 9] evidence rule to it, because I just don’t think

that Dr. Leavitt’s testimony is substantial in any sense

of the word. I don’t think the ex parte statements of

doctors which are objected to properly, timely, constitute

substantial evidence in any sense of the word, and, as

I say, I am not the only one that holds this view. This

view is supported by court of appeals’ opinions and by

other district courts all over the country.

If the practice in the past has been to do this, I think

it is time for them to sit back and take another look

because right is right, and I think that hearings ought

to be conducted properly.

A person who has a claim for benefits under the social

security act has just as valid a situation as anyone else

who claims rights under law, and while I would not want

to suggest, as I have said, and I repeat, I don’t want

to suggest that the Secretary or his examiners must

conduct hearings in court before juries, I do think that

they ought to observe what I have referred to as the

fundamental rules of fair play.

Now, this is the second one that you have had before

me, Mr. Weir, lately, were I have felt, upon reading the

record, that an argument on substantial evidence is just

not applicable yet. I realize I haven’t heard from you

this morning, but I think you know and understand the

17

position that I have taken in at least the prior case which

(fol. 10] you were in here on. Do you have any com-

ments you want to make? I know it might be anticlimac-

tic for you to make them, but—I don’t want to even try

to put you on the spot as to whether you think this was

the type of hearing that would satisfy your basic concept

of fair play, but if you have any statements, I’d be happy

to hear from you.

MR. WEIR: Well, I would say, first of all, your

Honor, that as directed during the motion for summary

judgment hearing on the Riley Case, I have informed

the Social Security Authorities, relevant authorities, as

much as possible, which I think was reflected in your

order on that case, your attitude under these circum-

stances.

There are two or three points I would like to advocate

with regard to the problem of fairness in this case, I

think the first point relates to the strength of the evi-

dence that we are talking about in this hearing, Dr.

Leavitt was a doctor who was rather well educated,

rather well experienced—

THE COURT: I don’t think there is any doubt about

that.

MR. WEIR: I feel that his testimony would be much

more valuable than my testimony or a medical student’s

testimony regarding his view of some reports, entitled

to a little more strength in this case or in any other case.

I also understand that more and more doctors consider

the history of a case and what other doctors have thought

(fol. 11] about it as very important. I think that was

brought out in this case.

After Dr. Morales testified regarding his feeling about

Mr. Perales’ condition and about his failure to really

put his finger on something—at one point he did begin

to suggest that perhaps there was objective evidence

available, that he himself had to go to the reports, the

hearsay reports of some of the other doctors which are

in the record—

THE COURT: I think that is all right. I think that

is permissible, but he was a man who had examined the

plaintiff and who was in a position to, shall I say, co-

18

ordinate the information that he received, or to reconcile,

is the word I want to use, to reconcile the information

he received from other doctors to see whether or not it

was in conformity with his own conclusions and if it

supported his conclusions, I think you can see there, if

you have an objection, the objection would go to the

weight rather than the admissibility.

You know, under our local court rules we provide for

the appointment of an impartial medical expert, and I

think that has a salutary effect. I think it is good. Of

course, if I hadn’t thought so I wouldn’t have wanted

it in our rules, but, basically, the impartial medical ex-

pert must still conduct his own examination and then he

can testify. But go ahead and develop your point.

MR. WEIR: I wondered to myself on this record—I

[fol. 12] can’t say that I am convinced that it is true

if Dr. Morales were here today and the last question had

been asked to him in this record: “Doctor, do you think

that an examination today would change your mind,

would give you more evidence,” I suggest that with his

emphasis upon his past dealings with the patient, upon

the past dealings of other doctors with this patient, that

what doctor Morales felt was most important in this

case was not how the plaintiff would appear today under

physical examination but how he had appeared in the

past to a number of doctors. It seems to me that the

evidence of an expert, be it Dr. Morales or Dr. Leavitt,

when they have had a lot of experience and when they,

themselves, contend that the medical history, whether ob-

served by them or others, might well be the most impor-

tant factor in the case, that this evidence is fairly strong

evidence, your HOnor.

THE COURT: Well, Mr. Weir, I agree that doctors

are becoming more and more conscious of past history

as a very important element in making any diagnosis.

No doubt about that. I think the Courts recognize that,

but no matter how important past history may be, they

still make their own examination to see whether or not

their own personal observation is in accord or in conflict

with what their past history may be. In other words,

I think for a doctor to form a meaningful opinion, he

19

[fol. 13] has to have the whole and not just a part, and

it seems to me that while the past history, as reflected

in reports of other doctors, may be important, I don’t

discount that it is equally important that the doctor

have his own examination so that he can come to his

own conclusion and make his own conclusions as to what

he has learned, not only from what other doctors have

said but on the basis of his own examination.

As I say, medicine is not an exact science; they recog-

nize that it isn’t, but when you have a doctor who testi-

fies as an expert and if you were sitting on that jury

over there and a doctor took this stand and began to

testify on the basis of ex parte statements made by other

doctors—in the first place, he wouldn’t be able to do it

because he wouldn’t get to first base in my court, but

let’s assume that the judge was asleep and the doctor

began to testify and you were sitting on that jury and

on cross-examination it developed that this doctor had

not been seeing the man before. I’ll ask you a rhetorical

question and I’ll answer it myself: How much weight

would you give to that doctor’s testimony? My answer

would be: very little, if any.

The only thing I say is that in order for an expert

to act as an expert, he ought to interpret what other

doctors have said in the light of his own experience. That

is the charge the jury is given when they are called upon

to make the decision. The courts say: you view this

(fol. 14] evidence and make your decision in the light of

your own experience.

Now, if the doctor who is an expert is going to make

an interpretation or render a decision in the light of his

own experience, as a part of that experience, in order

to qualify him as an expert, he has to know something

about the subject matter, and in order to do that, it

seems to me that it is basic that he has got to examine

this man.

If the doctor should take the stand and say: “Well, I

don’t know exactly what doctor so and so meant by this

expression he used; I can tell you what I think he means,

but I don’t know what he means. I didn’t make the

examination. I just have to accept this on the basis of

20

what I think the doctor meant,” I don’t think that would

the stand and he

examination: “Doctor, now,

what did you mean by that?“,

what he meant in lay language by this, then it is easy

for you, for the judge, and for the jury to know what

the doctor meant, but to have somebody else come and

testify that he thinks—and that is all he can do, because

he doesn’t know—this is what the doctor meant, or on

the basis of what the doctor said, his interpretation of

what he meant, he would come to this conclusion, I would

say it has absolutely no probative value at all. It may

be interesting to hear the doctor

ing these matters before the Secretary of Health, Edu-

cation and Welfare involving social security benefits, that

the critical issue is the present physical condition of the

claimant and since it is so critical and since his rights

are going to be adjudicated on the basis of medical testi-

mony, because the law also contemplates this, he must

have a fair hearing.

Now, if we are going to do that, then it just occurs

to me—and I am not going to say this officially—but it

just ought not to be necessary for an examiner to bring

‘a doctor from Houston here, all the way from Houston,

Texas, to San Antonio, Texas, to interpret what the doc-

tors in San Antonio say. I say all those doctors in San

Antonio could be brought over here to this building prob-

ably at less expense to the Government than bringing one

doctor all the way from Houston over here, but even

if they couldn’t be, they ought not to be niggardly in

providing a fair hearing, and a fair hearing seems to

me to contemplate that there be probative evidence from

the physicians involved.

I have seen situations like this where a party may

that a doctor’s statement can come in because he

reads the statement and the doctor doesn’t say anything

to hurt him or maybe he doesn’t say anything to help

him, just sort of a nebulous thing; on the other hand,

—

21

you find situations where a party—I am talking about

[fol. 16] a claimant who wants the doctor’s statement

in because it is very favorable to him. I think the saw

cuts both ways. I think the hearing examiner ought to

say to the claimaint: “Well, I can’t accept this state-

ment from the doctor ex parte, because I think the doctor

ought to be here to express himself and to be subjected

to cross-examination technique.”

The examiner talks very glibly to the claimant and

says: “Now, don’t worry about me asking questions and

sounding like I am not favorable to you. Don’t think

that if I ask a question favorable to you that that rep-

resents my thinking, because it doesn’t.” But you have

the examiner acting as a judge. He says he is not a

judge, but any time you make a decision in an adversary

proceeding, you are a judge. You can be a hearing exam-

iner or you can be a Corporation Court judge or you

can be a member of a commission in a condemnation

case. When ever you have the decision and the power,

as I see it you cre the judge. So he is the judge. He

also at once becomes an advocate because he has to in-

terrogate, and conceivably he could also be a prosecutor

and the one who is adverse and acting adverse to the

plaintiff.

I am sure that these hearing examiners are dedicated

men. I don’t attach any improper motives to them in

any way, shape or form, but I think that the fact that

he is wearing these various hats puts him in a rather

unfavorable position in trying to come to a conclusion

[fol. 17] that is impartial. I am sure they do the very

best they can under the circumstances, but when you

couple with that these other matters that I am talking

about, then I think you are depriving the individual

who is there of his right to a fundamental fair trial. If

we start out at the inception with a premise that is

wrong, and then you build on it, no matter how far you

go, you just keep repeating the same mistake, compound-

ing the same error.

As I say, I don’t think that is original with me at

all. I don’t think this represents any departure from

long standing concepts, and it is just the way that I feel

that it ought to be done. Until some appellate courts

tells me that I am wrong and I can’t do it—I say some

appellate court; I am talking about the Court of Appeals

for the Fifth Circuit and the Supreme Court of the

United States; those are the only two that can change

it—until they do it, I am going to insist that these hear-

ings be conducted in a proper Way. As long as they

keep sending them back until they do or until somebody

with a little more authority than I have tells me that

I am wrong.

Do you want to say anything else?

MR. WEIR: Just about two more sentences.

THE COURT: All right.

I know you weren’t there, Mr. Weir, and I know you

have to take these things as you find them, and somehow

[fol. 18] I feel that if you were sitting where I am,

you'd be feeling exactly the same way, but you go ahead.

MR. WEIR: I share a concern for the fairness in

jected to on the grounds that they were hearsay, and

I would be hard put to reverse the case or to send it

back because of the omission of that kind of hearsay,

because it was more or less of a historical nature and

did not bear directly upon what I consider to be and

what the courts apparently consider to be the real issue,

but I do think, as I say, I am not speaking alone; other

judges before me have said the same thing, and in the

order that I entered in the Grant case, I took verbatim

from one of the cases. I don’t have that file with me.

I just have a copy of the order. I took verbatim from

one of the cases the language that I used to the effect

ü—

that ex parte statements by doctors on this critical issue

[fol. 19] —I am paraphrasing now, because I don’t have

that before me, but that it has little or no probative

value.

MR. WEIR: Does that refer to a letter from a physi-

cian which can be produced without the physician?

THE COURT: Well, I think it would be beyond any

question unless the physician is there to support his letter

or unless the other sides doesn’t object.

I happened to be reading not long ago a case tried

before the Civil Service Commission, Fire and Police

Civil Service Commission, the City of San Antonio, and

in this letter was—not the Firemen and Police Civil

Service Commission; it was the Fire and Police Pension

Board, and on the very critical issue of the man’s physi-

cal condition, the attorney representing him let ex parte

letters from doctors go in without objection, and the

trial court here in San Antonio reversed it; the Court

of Civil Appeals reversed the trial court and affirmed

the decision of the Pension Board and I think properly

so, because the doctors whose letters went into evidence

just cut this man to ribbons on his physical condition,

but this was a case where a man was represented by

counsel and counsel let the letters go in evidence and

then the Pension Board took those letters and beat him

over the head with them, and in a situation like that,

I would have to say that the Court of Civil Appeals was

correct, and the Supreme Court refused writ of error; I

fol. 20] am talking about the Supreme Court of Texas.

But here we don’t have that situation. We have here

the attorney representing the claimant telling the exam-

iner at the very beginning: “Now, we are going to object

to any hearsay on this issue.” He objected to all hearsay,

but among his objections he stated that he was objecting

to the ex parte statements of the doctors, and he said:

“I am going to object to the testimony of Dr. Leavitt,”

and it is apparent that he hasn’t examined the plaintiff

and whatever he testified to was hearsay and unless you

asked him a hypothetical question—if you ask him a

hypothetical question to assume certain things to be true,

24

you can run him on the stand all day long. You see what

I am talking about?

MR. WEIR: Yes, sir.

THE COURT: If we asked Dr. Leavitt to assume

such and such to be true, “What would your conclusion

be”—but he would have to assume matters that had been

proved and he could not assume a matter that was an

ex parte statement because they would not have been

proved. If Dr. Leavitt were put on the stand after other

doctors had testified to such and such, even though he

had never seen the man, and they said to him: “Doctor,

assuming this and assuming that, and assuming that this

man can do this and assuming he can’t do this, and all

of these things, what would your opinion—do you have

an opinion as to whether or not he is physically dis-

[fol. 21] abled,” and then the doctor said “Yes,” he

would be permitted to express an opinion. Then the

trier of the facts could give his opinion as much weight

as the trier of facts thought he was entitled to receive,

but that wasn’t done. The attorney representing the

claimant objected:

“Unless the doctor examines the patient or unless you

ask him hypothetical questions, I am going to object,”

and when the examiner said: “Well, your objection is

noted but it is overruled.” Then Mr. Tinsman said:

“Well, I want the record to show that I have a running

objection to all of the statements.” So I think the record

is clear on the point.

MR. WEIR: It is my understanding that the hearing

is so geared that it is possible for a plaintiff, without

representation by attorney, without a doctor appearing

on his behalf, may bring in a letter from a doctor and

obtain the benefit of this, which he is entitled to. Appar-

ently there was some purpose to setting the hearing up

so they could do it that way.

THE COURT: I don’t think there is any question

about that. I think the overwhelming majority of these

cases are disposed of in that very simple way. I am not

so sure that every claimant’s rights are properly pro-

tected. The only cases that I have to review are those

where they either had a lawyer at the hearing or they

25

got one after they got an adverse decision. So what

(fol. 22] happens in the run of the mill case where a

claimant doesn’t have a lawyer? I don’t know. I would

hope that the examiners would give them the benefit of

any information that they might submit, but on the other

hand, let’s say that a claimant comes in one of those

hearings. He is ignorant, doesn’t know. We give a man

a lawyer in a criminal case and we say that no matter

what sort of crime he is charged with, he is entitled to

legal counsel, but if they go to have other rights adjudi-

cated, they don’t have lawyers, and if a fellow comes

up with a letter from a doctor—let’s say the examiner

brings in this medical advisor who is going to make his

decision for him. The medical advisor takes this letter

and maybe takes other letters and comes to the conclu-

sion and tells the examiner what his conclusion is and

the examiner, as was done in this case, just copies it

down almost verbatim and says: “These are my findings

of fact.” I wouldn’t be able to say that justice was done.

It may have been done, but the up shot is I don’t have

psychic powers. I am not a soothsayer. I just don’t

know. Just like in this case, maybe Dr. Leavitt would

have an entirely different concept if he had examined

this man, and say: Til tell you what they said, but

I just don’t agree with them.” But he is put in a posi-

tion of accepting as gospel whatever some other doctor

says and placing his interpretation upon what that doctor

meant and then expressing it and then having the exam-

iner make his findings almost verbatim, in the same

[fol. 23] language. That, to me, is wrong.

MR. WEIR: In this case if Mr. Perales had gone to

Dr. Morales and Dr. Morales said: “I don’t have time

to testify on your behalf, but I’ll give you a letter de-

tailing your condition of which I have personal knowl-

edge for as long a period of time as you want it,” would

it be appropriate for the hearing examiner to have ac-

cepted that at the first hearing on this case and to have

ruled for the plaintiff on the basis of that letter?

THE COURT: Well, I think that would be a deter-

mination that the hearing examiner would have to make,

but I would say this: that any lawyer who is represent-

ing Mr. Perales who undertook to rely upon a letter from

the doctor would, in my opinion, not be representing his

client well. I think that in order for him to—particularly

if he has reason to believe that there would be other

testimony given or other letters that would be adverse

—because I think that the only way that a doctor’s—

Listen, Mr. Weir. I have seen it happen too many times.

I have been at this business for 33 years, going on 34,

and I have heard lots of doctors testify and I have heard

their testimony when they have a letter that they had

written before them, and what it amounts to afterwards

—I am going to tell you: often times, and not just sel-

dom, but often times you can’t tell. Well, you know that

the statements made in the letter were probably hurriedly

[fol. 24] made or improvidently made, not based upon

proper reflection or without having taken other aspects

of the case into consideration at the time, and I mean

that is a human element that we have to contend with,

and I don’t think I can say in good conscience that I

have ever seen a doctor who I thought deliberately lied.

In fact, in the time I have been practicing law and been

on the bench I would have to stop and think of a medical

witness I think deliberately lied. I think some of them

have colored their imaginations a little bit from time to

time, and I think a doctor who examines a patient like

Mr. Perales, has known him for a long period of time,

is bound to be sympathetic with him; that is just human

nature, and I think those things have to be taken into

consideration by the triers of the facts. He has to know

what the situation is. I think a doctor who wasn’t inter-

ested in a patient would be inclined to become his advo-

cate in a sense; that is no reflection on the doctor, but

by the same token I think the doctor brought here from

Houston, Texas, at the behest of the examiner who is

handling the case for the Social Security Administration

might be inclined subconsciously or otherwise to testify

. little harshly and in favor of the side that employed

m.

Those are just comments that I think I have made

without any rancor or without any bitterness or without

any suggestion that this is done deliberately, that those

—— —

27

are things that are developed on eross- examination in a

(fol. 25] well- regulated trial which the trier of facts can

take into consideration. i

As long as you practice law you are going to be trying

to show what the bias and prejudice of a witness is, what

his interest is. You are going to argue that to a jury.

The reason I am spending so much time talking about

this is that I would hope that you or someone else with

the United States Attorney’s Office or representing the

Government would be able to get across to the hearing

examiner or to the Secretary of Health, Education, and

Welfare that there is a happy medium that should be

reached there some where and that doctors’ statements,

as fine as doctors are, they are just not gospel and they

are subject to all of the human frailties that all of the

rest of us are subject. The mere fact that they have a

degree doesn’t put a halo around their heads, and they

can make mistakes, and that this right to cross-examina-

tion—The longer I am in the law business, the more im-

portant I see how it is or that it is.

Here is a man who, all during the hearing, asked:

“Give me the right to cross examine. Let me look at

these doctors eyeball to eyeball. These doctors that have

made these reports and have sloughed it off and said

‘There is nothing to it’, let me look them squarely in the

eye.” This doctor who said that Mr. Perales was recalci-

trant, that he was a reluctant patient, that he had never

[fol. 26] seen a patient who was more reluctant to be

examined or more reluctant to cooperate may well be

tested by the skill of the cross examiner who might be

left with the same conclusion, but I think with testimony

of that kind it is going to go into the record and that

somebody representing this man ought to have the right

to ask this doctor some questions about his conclusion.

To me that was a very prejudicial statement made by

the doctor, and if this doctor testified and I heard him

and I were convinced after he testified and after he had

been thoroughly cross examined that his conclusion was

justified, I might take a dim view of Mr. Perales and

his claim, too. That goes into the record absolutely un-

challenged.

Well, do you have anything you want to say?

MR. HUNTER: No, sir.

THE COURT: You guess from what the judge said

it looked like the best thing to do was to keep quiet?

Gentlemen, I am going to send this back to the Secre-

tary. I am going to ask that a new hearing examiner

be supplied. I am going to provide that a new hearing

be conducted and that the medicai—that he be given a

current medical examination and that the doctors who

conduct these examinations be made available for testi-

mony and for cross-examination. However, the order is

going to provide, as others that I have entered in these

cases have provided, that the parties may agree on any

[fol. 27] evidence that was submitted in a prior hearing

and they may agree that this can be submitted on the

record, For instance, the testimony of Dr. Morales; the

testimony of this vocational expert. Maybe the parties

can agree that their testimony can be considered on the

basis of the record as made, but I am not suggesting

that they have to, or that the Secretary—the examiner

is obligated to do it at all. They can just start all over

or they can agree on which part will be received and

which part will not. That will be up to counsel, but I

think a new examiner is in order, because this examiner

was told ahead of time what this court’s attitude was

about it. He chose not to follow it. I think we ought

to get one that is going to follow the Court’s order. The

order that I enter in this case is going to be the law

of this case until some other court says it isn’t.

I have a duty to perform as well as they do. I am

going to do it to the best of my ability, and if, after

a hearing, they come to the same conclusion, then I will

be glad to hear you gentlemen on the substantial evi-

dence rule, but right now I just don’t think we have

got a hearing, got a record that we can either apply or

not apply the substantial rule to. As a matter of fact,

if I entered an order on the basis of this record I would

reverse the Secretary and order that the benefits be given

to the plaintiff, because, first, I would think the evidence

[fol.28] was not—of Dr. Leavitt—of any probative

value whatever, and the only evidence from the medical

expert in this record which follows the rules that I have

layed down in other cases, which this trial examiner was

well aware of or should have been—the only evidence is

from Dr. Morales.

If I were going to enter a judgment, I’d enter it on

the basis of his evidence, which I don’t think is contra-

verted by anything properly admitted in evidence or of

anything having any provative value. I would have to

use the subjective testimony of the plaintiff as to what

he can do and what he can’t do and I would say that his

testimony is completely consisten with Dr. Morales’ testi-

mony. It would be inconsistent with some of the other

statements made, but if I were to eliminate those state-

ments, I would find for the plaintiff, but I am not in-

terested in dealing in technicalities for either side.

I think justice is done when a full hearing in ‘this

case, when a fair hearing is held. That is all I want

to see done in this case.

Thank you very much, gentlemen. I will enter a judg-

ment. You needn’t worry about preparing one.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

Civil Action No. 67-77-SA

PEDRO PERALES

V.

JOHN W. GARDNER, Secretary of

Health, Education and Welfare

ORDER REMANDING CASE

On the 18th day of February 1968, came on to be

considered the motions for summary judgment filed by

plaintiff and defendant; and it appearing to the Court

that hearings were held on January 12, 1967 and March

31, 1967, but the only medical evidence presented, other

than certain ex parte statements, was the testimony of

Dr. Max Morales, Jr. and Dr. Lewis A. Leavitt. Dr.

Morales testified to the effect that plaintiff, in his pres-

ent condition, will not be able to continue gainful em-

ployment as a common laborer. Dr. Leavitt, who had

never examined the plaintiff, after having been permitted,

over objection, to interpret what other doctors had said

in their written reports, concluded that the plaintiff is

suffering from a low back syndrome of musculo-ligament-

ous origin, and of mild severity. Other evidence as to

the present degree of plaintiff’s physical disability was

supplied by the plaintiff himself. No doctor who had

personally examined plaintiff, and who had submitted a

report adverse to his interest, was called upon to testify

in person.

(1) Except in unusual circumstances, and none are

shown to exist in this case, the Court is reluctant

to accept as substantial evidence, over objection, the

opinion of a medical expert submitted in the form of

a written report, the admission of which would have

the effect of denying to the opposition an opportunity

for cross-examination.

(2) In the opinion of this Court, the Secretary of

Health, Education and Welfare should recognize the

invalidity of ex parte reports from doctors as evi-

$1

dence having real probative value in a case. Such

“evidence”, when stacked up against the oral testi-

mony of examining doctors could hardly constitute

substantial evidence as contemplated by law.

(3) The critical issue as to plaintiff’s present physi-

cal condition should be resolved only after current

medical examinations have been conducted, and all

of the examining doctors whose views are to be re-

lied upon, in whole or in part, have been made avail-

able at the hearing in person, if either side so de-

sires, in order that their opinions may be openly

expressed and both parties may have an opportunity

to question them all in a meaningful way. This does

not mean that the examining doctors should not have

access to medical records, as well as other doctors’

reports, in arriving at their independent judgment

concerning plaintiff’s present physical condition, but

it does mean that no medical evidence should be re-

ceived and considered, over objection, unless it is of

the nature and form indicated; provided, however,

the parties may by agreement incorporate into the

record for consideration the testimony given by any

witness, medical or lay, at either of the two prior

hearings.

(4) The testimony of Dr. Leavitt (called by the

examiner as his medical adviser), which undertakes

only to interpret what other doctors have said and

draw conclusions therefrom, is of little or no pro-

bative value (even though the doctor is no doubt

highly competent in his field), since it is apparent

that the witness was not testifying in response to

hypothetical questions, he had not personally exam-

ined the plaintiff, and he had made no independent

determination as to plaintiff’s present physical con-

dition. As a consequence, he could not speak from

personal knowledge. If an interpretation of any re-

port was called for, the proper one to perform this

function would be the doctor who submitted it. This

is particularly true when it is obvious that the hear-

ing examiner in his findings has relied heavily on

the opinion of the “medical adviser”, who made it

clear that he had never seen the plaintiff prior to

his appearance at the hearing, and candidly stated:

“All I can interpret is what the physicians who have

examined the man over a period of months have

stated”. Since the ex parte statements “interpreted”

by the medical adviser were hearsay, and the medi-

cal adviser’s testimony was hearsay, his testimony

amounted to pyramiding hearsay upon hearsay,

which violates the fundamental rule of fair play in

a “hearing”.

(5) The record in this case should contain all per-

tinent evidence developed in a proper manner, and

pursuant to the well-established rules of fairness.

Inasmuch as this has not been done, this Court is

of the opinion that in the interest of justice this

cause should be remanded to the Secretary with in-

structions to assign this cause to a different hearing

examiner to hear the entire matter anew. Either

party should be afforded full opportunity to present

competent evidence on pertinent issues, and findings

should be made solely on the basis of the record made

at the hearing before the new examiner, which rec-

ord may, as indicated, contain, by agreement only,

—4 testimony submitted at either of the prior hear-

It is, accordingly, ORDERED, ADJUDGED and DE-

CREED that the motions of plaintiff and defendant for

summary judgment be and they are hereby in all things,

DENIED, the decision of the Secretary of Health, Edu-

cation and Welfare denying the relief sought is RE-

VERSED, and this cause is remanded to the Secretary

for a full new hearing before a different examiner, at

the earliest practicable time.

Entered the 13th day of February, 1968.

/s/ Adrian A. Spears

ADRIAN A, SPEARS

United States District Judge

—

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

Civil Action No. 67-77-SA

PEDRO PERALES

v.

SECRETARY OF HEALTH, EDUCATION AND WELFARE

Counsel for Plaintiff:

RICHARD E. TINSMAN

Tinsman & Cunningham

1907 National Bank of Commerce Building

San Antonio, Texas 78205

ANTHONY J. FERRO

Attorney at Law

812 San Antonio Savings Building

San Antonio, Texas 78205

Counsel for Defendant:

WARREN N. WEIR

Assistant U. S. Attorney

Post Office Box 1701

San Antonio, Texas 78206

MEMORANDUM OPINION

This is an appeal brought under the provisions of 42

U.S. C. A. § 405 (g), from a decision of the Appeals Coun-

eil affirming the hearing examiner's holding that plaintiff

is not entitled to any disability benefits under the pro-

visions of the Social Security Act.

Hearings were held in San Antonio on January 12,

1967 and March 31, 1967. At the initial hearing the

only witnesses were the plaintiff and a physician whose

testimony was to the effect that plaintiff would ‘not be

able to continue gainful employment as a common laborer.

34

Other evidence consisted of certain unsworn medical re-

ports received, over objection, by the hearing examiner.

At the second hearing, although no examining physi-

cians appeared, and there was no showing that they were

unavailable, the hearing examiner heard testimony, over

objection, from a “medical adviser”, who had never ex-

amined the plaintiff, and did not testify in response to

hypothetical questions. Nevertheless, he was allowed to

interpret “what the physicians who had examined the

man over a period of months have stated”, and the hear-

ing examiner, in arriving at his findings, relied heavily

upon that interpretation.

Except in unusual circumstances, and none are shown

to exist in this case, this Court is reluctant to accept as

substantial evidence the opinions of medical experts sub-

mitted as original evidence in the form of unsworn writ-

ten reports, the admission of which would have the effect

of denying to the opposition an opportunity for cross-

examination.“ Ratliff v. Celebrezze, 338 F. 2d 978, 982

(6 Cir. 1964); Mullen v. Gardner, 256 F. Supp. 588

(E.D.N.Y. 1966).

Similarly, the opinion of a doctor who has never exam-

ined or treated a claimant, is entitled to little or no

probative value, especially when it is opposed by evidence

of a substantial nature, including the oral testimony of

an examining physician, See Hayes v. Gardner, 876 F.

2d 517 (4 Cir. 1967).

Certainly, therefore, in a situation where, as here,

unsworn medical reports of examining physicians are

received as original evidence on the critical issue of

plaintiff’s physical condition, a non-examining medical

expert is then allowed to “interpret” those ex parte re-

ports, and that “interpretation” forms the basis for the

decision by the hearing examiner, we have what amounts

to pyramiding hearsay upon hearsay, which, under the

circumstances of this case, violates the fundamental rule

of fair play and cannot be permitted to stand.

1 This is not to say that the examining doctors should not, under

proper circumstances, have access to medical records, as well as

other doctors’ reports, in arriving at their independent judgment

concerning a claimant’s physical condition.

Since it appears that the hearing examiner, having

been forewarned, deliberately ignored similar rulings

made by this Court in an earlier case, the interests of

justice will be better served by remanding this cause to

the Secretary for a new hearing before a different exam-

iner, at which hearing the interested parties will be af-

forded full opportunity to present competent evidence on

all pertinent issues. New findings should then be made

solely on the basis of the record made at the h

before the new examiner, which record may, however,

contain by agreement any evidence submitted at either

of the prior hearings.

It has been SO ORDERED.

Entered this 13th day of August 1968 at San Antonio,

Texas.

/s/ Adrian A. Spears

ADRIAN A, SPEARS

United States District Judge

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 26238

WILBuR J. COHEN, SECRETARY OF

HEALTH, EDUCATION, AND WELFARE, APPELLANT

versus

PEDRO PERALES, APPELLEE

Appeal From the United States District Court

for the Western District of Texas

(May 1, 1969)

Before COLEMAN and GOLDBERG, Circuit Judges, and

SKELTON, Judge of the Court of Claims*

SKELTON, Judge.

Pedro Perales, Appellee, hereinafter called claimant,

filed an application for social security benefits in April

1966, claiming that a back injury received by him on

September 29, 1965, had disabled him. This application

was filed with the Secretary of Health, Education and

Welfare, hereinafter called “the Secretary” or “HEW,”

under 42 U.S.C.A., Sections 416(i) (1) and 423 of the

Social Security Act. His application was disapproved,

and, thereafter, he requested and was granted a hearing

before an examiner. The hearing consisted of two ses-

sions, the first of which was held in San Antonio, Texas,

on January 12, 1967. The supplemental hearing was

held on March 31, 1967.

At the hearings, the examiner offered and introduced

into evidence, over the objection of claimant’s attorney,

a number of unsworn medical reports of doctors who

had examined the claimant but who were not present at

either hearing and did not testify. The claimant objected

to this evidence on the ground it was hearsay and its

* Sitting by designation as a member of this panel.

87

admission deprived him of the right to be confronted by

witnesses who were against him and of the right to cross-

examine them. The examiner overruled the objections

and received the reports into evidence.

The examiner also allowed a Dr. Lewis A. Leavitt to

testify over the objection of claimant. He had been flown

from Houston to San Antonio by HEW to testify as an

expert in the case. He had never examined the claimant

and his testimony consisted of his “interpretation” of

the medical reports of the absent doctors mentioned above.

The claimant objected to this testimony because it was

hearsay based on hearsay and because the witness’ an-

swers were not confined to hypothetical questions. Ac-

tually, he was not asked any hypothetical questions. The

examiner allowed this witness to “interpret” the reports

of the absent doctors in such a way as to indicate that

claimant was not disabled.

The only direct evidence from live witnesses bearing

on the physical condition of the claimant was that of

the claimant himself and one Dr. Max Morales, who had

examined and treated him. This evidence showed that

the claimant was disabled and supported his claim for

the social security benefits.

After the second hearing, the examiner determined,

on May 12, 1967, that the claimant was not entitled to

disability benefits. The claimant requested a review by

the Appeals Council on June 16, 1967, and on July 20,

1967, he was notified that the Appeals Council had ap-

proved the examiner’s denial of his claim and that its

affirmance of his decision constituted the final decision

of the Secretary in his case.

The claimant appealed his case to the United States

District Court for the Western District of Texas. After

HEW filed its answer, both parties filed motions for

summary judgment. The court heard the motions, and

on February 13, 1968, denied both motions and reversed

the decision of the Secretary denying the relief sought,

and remanded the cause to the Secretary for a full new

hearing before a different examiner. In addition to the

order of February 13, 1968, the court filed a memoran-

dum opinion in the case on August 13, 1968, which con-

tains basically the same recitations and orders that were

included in his order of remand of February 13, 1968.

The Secretary appealed the case to this court. The

claimant filed a motion here to dismiss the appeal on

the ground that the judgment of the trial court was in-

terlocutory and not appealable. We entered an order

carrying this motion along with the appeal.

The three basic questions to be decided here are: (1)

Was the decision of the trial court an appealable one?

(2) Is hearsay evidence, when objected to, admissible in

an administrative agency hearing such as the HEW hear-

ing in this case? (3) If hearsay evidence is admissible

over objection in an administrative agency hearing, such

as that of the HEW in this case, is such hearsay evi-

dence, standing alone and without more, substantial

evidence?

We will consider these questions in the order given.

It is our view that this case is an appealable one. We

think this question is governed by the provisions of 42

U.S.C. § 405 (g) which provides:

(g) The court shall have power to enter, upon

the pleadings and transcript of the record, a judg-

ment affirming, modifying, or reversing the decision

of the Secretary, with or without remanding the

cause for a rehearing. * * * The court shall, on mo-

tion of the Secretary made before he files his answer,

remand the case to the Secretary for further action

by the Secretary, and may, at any time, on good

cause shown, order additional evidence to be taken

before the Secretary * * *. The judgment of the

court shall be final except that it shall be subject to

review in the same manner as a judgment in other

civil actions.

It will be noted that this statute authorizes the court

to enter a judgment “affirming, modifying, or reversing

the decision of the Secretary, with or without remanding

the cause for a rehearing.” The statute also states that

such ju.ents “shall be final except that it shall be

subject to review in the same manner as a judgment in

39

other civil actions.” Of course, 28 U.S.C. 1291 gives the

courts of appeals jurisdiction to review appeals from all

final decisions of the district courts.

It appears clear to us that here where the district

court entered an order denying the motions for summary

judgment and reversing the decision of the Secretary and

remanding the case to the Secretary for a full new hear-

ing, in accordance with his order of remand, the case is

an appealable one. See Jamieson v. Folson, 7 Cir., 1963,

311 F. 2d 506, cert. denied, 374 U.S. 487, 83 S. Ct. 1868,

10 L. Ed. 2d 1043 (1963); Gardner v. Moon, 8 Cir.,

1966, 360 F. 2d 556, 558; and Celebrezze v. Lightsey, 5

Cir., 1964, 329 F. 2d 780.

Also we think the remand order is final within the

meaning of 28 U.S.C. 1291. The finality requirement of

this section has usually been given a practical rather

than a technical construction. Cohen v. Beneficial Loan

Corp., 387 U.S. 541, 546, 69 S. Ct. 1221, 93 L. Ed. 1528

(1949) ; Gillespie v. United States Steel Corp., 379 U.S.

148, 152, 85 S. Ct. 308, 18 L. Ed. 2d 199 (1964).

It should be noted that not all orders under 42 U.S.C.

§ 405 (g) are appealable. In situations where the Secre-

tary moves the court before he files an answer, or at

the request of either party, the court remands the case

for additional evidence, the order would not be appeal-

able, An order remanding the case for additional or sup-

plementary evidence, without a review by the court of

the administrative record nor a decision by it on the

substantial evidence question, is without doubt an inter-

locutory order and is not appealable. Likewise, an order

sua sponte by the court for the taking of additional evi-

dence is not appealable. Bohms v. Gardner, 8 Cir., 1967,

381 F. 2d 283, cert. denied, 390 U.S. 964 (1968).

In the case before us, the court not only denied the

motions for summary judgment and reversed the deci-

sion of the Secretary, but also established standards for

the admission of hearsay evidence and indicated that

hearsay evidence is not substantial evidence, Unless the

Secretary is allowed to appeal from this order, he will

never be able to reach the questions involved, because

on the next appeal, if there is one, the sole question may

40

be the substantiality of the evidence, and not its ad-

missibility. This seems to us to fit the rationale of the

decision in Cohen v. Beneficial Loan Corp., supra, where

the Court said:

This decision appears to fall in that small class

which finally determine claims of right separable

from, and collateral to, rights asserted in the action,

too important to be denied review and too independ-

ent of the cause itself to require that appellate con-

sideration be deferred until the whole case is adjudi-

cated. The Court has long given this provision of

the statute this practical rather than a technical

construction. * * *. Jd. at 546.

Accordingly, we conclude that the case is an appealable

one, and we deny the motion of appellee (claimant) to

dismiss the appeal.

We next consider the question of whether or not hear-

say evidence, when objected to, is admissible in an ad-

ministrative hearing, such as the hearing in this case.

The claimant contends that the admission of hearsay

evidence denies him the right to be confronted by his

adversary witnesses and the right of cross-examination.

We must look first to the statute enacted by Congress

governing this problem. We find that 42 U.S.C. § 405

(a) and (b) provides:

(a) The Secretary shall have full power and au-

thority to make rules and regulations and to estab-

lish procedures, not inconsistent with the provisions

of this subchapter, which are necessary or appropri-

ate to carry out such provisions, and shall adopt

reasonable and proper rules and regulations to regu-

late and provide for the nature and extent of the

proofs and evidence and the method of taking and

furnishing the same in order to establish the right

to benefits hereunder.

(b) Evidence may be received at any hearing be-

fore the Secretary even though inadmissible under

rules of evidence applicable to court procedure.

Also, it must be noted that in accordance with the stat-

ute quoted above, the Secretary has promulgated the fol-

41

lowing rules and regulations with respect to evidence

and procedures to be followed in hearing before him:

20 C.F.R. 404.926 provides, in pertinent part:

When reasonably necessary for the full presenta-

tion of a case, a hearing examiner or a member of

the Appeals Council, may, either upon his own mo-

tion or upon the request of a party, issue subpoenas

for the attendance and testimony of witnesses and

for the production of books, records, correspondence,

papers, or other documents which are relevant and

material to any matter in issue at the hearing.

Parties who desire the issuance of a subpoena shall,

not less than 5 days prior to the time fixed for the

hearing, file with the hearing examiner or at a dis-

trict office of the Administration a written request

therefor, designating the witnesses or documents to

be produced, and describing the address or location

thereof with sufficient particularity to permit such

witnesses or documents to be found. The request

for a subpoena shall state the pertinent facts which

the party expects to establish by such witness or

document and whether such facts could be established

by other evidence without the use of a subpoena. * * *

20 C.F.R. 404.927 provides, in pertinent part:

* * * The hearing examiner shall inquire fully

into the matters at issue and shall receive in evi-

dence the testimony of witnesses and any documents

which are relevant and material to such matters.

* * * The order in which evidence and allegations

shall be presented and the procedure at the hearing

generally, except as these regulations otherwise ex-

pressly provide, shall be in the discretion of the hear-

ing examiner and of such nature as to afford the

parties a reasonable opportunity for a fair hearing.

20 C.F.R. 404.928 provides, in pertinent part:

Evidence may be received at the hearing even

though inadmissible under rules of evidence appli-

cable to court procedure.

42

It will be observed that the above statute as well as

the regulation issued by the Secretary provide that:

Evidence may be received at any hearing before the

Secretary even though inadmissible under rules of

evidence applicable to court procedure.

This provision of the statute and regulation clearly

authorize the admission of hearsay evidence into the rec-

ord of an administrative hearing of the HEW such as

that involved here. The claimant and the Bexar County

Legal Aid Society, who appear here as an amicus curiae,

contend that the Administrative Procedure Act entitles

the claimant to the right of cross-examination and that

the admission of hearsay evidence denies him that right.

They cite the provision of the Act in 5 U.S.C. § 556(d)

which provides:

A party is entitled to present his case or

defense by oral or documentary evidence to submit

rebuttal evidence, and to conduct such cross-exam-

ination as may be required for a full and true dis-

closure of the facts.

However, the Administrative Procedure Act further

provides that its provisions:

[Do not supersede the conduct of specified

classes of proceedings, in whole or in part, by or

before boards or other employees specifically pro-

vided for by or designated under statute.’

We conclude that the Administrative Procedure Act

does not control the method of conducting hearings under

the Social Security Act, if in conflict therewith, and the

right of cross-examination provided for in the former

will not prevail over the procedures established by the

Secretary under the latter statute,

The claimant points to the case of Southern Stevedor-

ing Co. v. Voris, 5 Cir., 1951, 190 F. 2d 275, as author-

ity for the inadmissibility of hearsay medical reports.

We do not think that case is controlling here for several

15 U.S.C. § 556 (b).

48

reasons. In the first place, the provisions of the two laws

involved are different. In the next place, the inadmissi-

bility of the reports was being asserted there by a party

against whom a money judgment was sought. That is

quite a different situation to that existing in the case

at bar. Here, the claimant is claiming disability benefits

under a law of Congress. In such a case the Congress

has the right to establish procedures and regulations the

claimant must comply with before he is entitled to these

benefits, So long as these procedures are not unfair,

arbitrary, discriminatory, and do not deprive the claim-

ant of the opportunity to present his claim in an ade-

quate and comprehensive manner, he is required to com-

ply with them. Furthermore, in the Southern Stevedor-

ing Co. case, swpra, the court held that the provisions of

the Administrative Procedure Act as to cross-examina-

tion applied in that case. The court said:

* * * Moreover, sec. 7(c) of the Administrative

Procedure Act, 5 U.S. C. A. § 1006 (e), expressly pro-

vides that “Every party shall have the right * * *

to conduct such cross-examination as may be re-

quired for a full and true disclosure of the facts.

Id. at 277.

We have already pointed out that this section of the

Administrative Procedure Act does not apply to hearing

procedures under the Social Security Act which is in-

volved here.

The claimant complains of the admission of hearsay

evidence and the denial of confrontation of adverse wit-

nesses and the right of cross-examination as if they were

all one and the same. Actually, they are different and

must be treated separately. While it is true that the

admission of hearsay testimony denies the claimant the

right of cross-examination, at least temporarily, still, he

has his remedy under the regulations issued by the Sec-

retary. These regulations give the hearing examiner the

authority to subpoena witnesses on his own motion or

at the request of a party.? While it is true the regula-

220 C.F.R. 404.926, supra.

44

tions require a party to request subpoenas for witnesses

five days before the hearing, and a claimant might not

know at that time what witnesses he would need to sub-

poena in order to cross-examine the authors of hearsay

evidence to be introduced by the Secretary, still he could

ask for a postponement or a supplemental hearing in

order that he might have the witnesses present. If this

was refused, he would have a valid objection that could

be urged on appeal. But that is not the case here, Ac-

tually, there was a supplemental hearing in this case. The

claimant could have requested subpoenas for the absent

doctors requiring them to be present at the later hearing,

but he did not do so. The cases are clear that where a

party has the right to subpoena witnesses by requesting

the agency representative to issue them, and he does not

make the request, he cannot later complain of the fact

that he has been denied the right of confrontation of

adverse witnesses and the right of cross-examination.

See Williams v. Zuckert, 371 U.S. 531, 83 S. Ct. 403, 9

L. Ed. 2d 486 (1963) and 372 U.S. 765, 83 S. Ct. 1102

10 L. Ed. 2d 136 (1963); Begendorf v. United States,

169 Ct. Cl. 298, 340 F. 2d 362 (1965); McTiernan v.

Gronouski, 2 Cir., 1964, 337 F. 2d 31, 37.

However, as pointed out above, this is entirely differ-

ent to the objection of claimant to the admission of hear-

say evidence. The correct rule as to the admission of

hearsay evidence by an administrative agency was stated

by the court in Morelli v. United States, 177 Ct. Cl. 848,

853-54 (1966) as follows:

* * * [T]he hearsay rule is not applicable to ad-

ministrative hearings so long as the evidence upon

which a decision is ultimately based is both sub-

stantial and has probative value.

To the same effect is Montana Power Co. v. Federal

Power Commission, D.C. Cir., 1950, 185 F. 2d 491, 497,

cert. denied, 340 U.S. 947, 71 S. Ct. 531, 95 L. Ed. 683

(1951); and Willapoint Oysters, Inc. v. Ewing, 9 Cir.,

1949, 174 F. 2d 676, 690, cert. denied, 338 U.S. 860, 70

S. Ct. 101, 94 L. Ed. 527 (1949).

We conclude that the hearsay evidence in this case

was admissible under the Social Security Act. See Rocker

v. Celebrezze, 2 Cir., 1966, 358 F. 2d 119, 122. However,

this does not solve the entire problem in the case. The

overriding issue and the one that actually and properly

concerned the trial court was whether or not the hearsay

evidence received by the examiner was substantial evi-

dence on which he could base his decision. While the

trial court did not specifically decide this question, his

order of remand and memorandum opinion made refer-

ence to it, and for all practical purposes held the hearsay

evidence was not substantial evidence.* Since the problem

will arise in the next trial of the case, and is involved

in three other cases now held in suspense,‘ we will con-

sider it here for the benefit of the Secretary and the trial

court.

The memorandum opinion stated in part as follows:

Except in unusual circumstances, and none are shown to exist

in this case, this Court is reluctant to accept as substantial evi-

dence the opinions of medical experts submitted as original evi-

dence in the form of unsworn written reports, the admission

of which would have the effect of denying to the opposition an

opportunity for cross-examination. Ratliff v. Celebrezze, 388 F.

2d 987, 982 (6 Cir. 1964); Mullen v. Gardner, 256 F. Supp. 588

(E.D.N.Y. 1966).

Similarly, the opinion of a doctor who has never examined or

treated a claimant, is entitled to little or no probative value,

especially when it is opposed by evidence of a substantial nature,

including the oral testimony of an examining physician. See Hayes

v. Gardner, 876 F. 2d 517 (4 Cir. 1967).

Certainly, therefore, in a situation where, as here, unsworn

medical reports of examining physicians are received as original

evidence on the critical issue of plaintiff’s physical condition, a

non-examining medical expert is then allowed to “interpret” those

ez parte reports, and that “interpretation” forms the basis for the

decision by the hearing examiner, we have what amounts to

pyramiding hearsay upon hearsay, which, under the circum-

stances of this case, violates the fundamental rule of fair play

and cannot be permitted to stand. Id. at 1a(S) and 2a(S) of

Supplemental Record.

*The trial court is now holding in abeyance three other cases

involving the same issues as those involved here, awaiting the

outcome of this case. They are Baker v. Cohen, No. 26670; Cohen

v. Riley, No. 26247; and Cohen v. Hammonds, No. 26248.

46

This brings us to a consideration of the third question

mentioned above, namely, is the hearsay evidence in this

case, enn alone and without more, substantial evi-

dence

The Supreme Court defined substantial evidence in

NLRB v. Columbian Enameling & Stamping Co., 306

U.S, 292, 299-300, 59 S. Ct. 501, 83 L. Ed. 660 (1939)

as follows:

* * * (FJindings by administrative bodies, means

evidence which is substantial, that is, affording a

substantial basis of fact from which the fact in issue

can be reasonably inferred, Washington, V. & M.

Coach Co. v. National Labor Relations Board, 301

U.S. 142; Consolidated Edison Co. v. National Labor

Relations Board, 305 U.S. 197; Appalachian Electric

Power Co. v. National Labor Relations Board, 98

F. 2d 985, 989; National Labor Relations Board v.

Thompson Products Inc., 97 F. 2d 18; Ballston-Still-

water Knitting Co, v. National Labor Relations

Board, 98 F. 2d 758, 764. Substantial evidence is

more than a scintilla, and must do more than create

a suspicion of the existence of the fact to be estab-

lished, “It means such relevant evidence as a rea-

sonable mind might accept as adequate to support a

conclusion,” Consolidated Edison Co. v. National

Labor Relations Board, supra, p. 229, and it must

be enough to justify, if the trial were to a jury, a

refusal to direct a verdict when the conclusion sought

to be drawn from it is one of fact for the jury. See

Baltimore & Ohio R. Co. v. Groeger, 266 U.S. 521,

524; Gunning v. Cooley, 281 U.S. 90, 94; Appala-

chian Electric Power Co. v. National Labor Rela-

tions Board, supra, 989.5

s See also Consolo v. Federal Maritime Commission, 383 U.S.

607, 619-20, 86 S. Ct. 1018, 16 L. Ed. 2d 181 (1966); Coomes v.

Ribicoff, 209 F. Supp. 670, 671 (D. Kan. 1962); Sandusky v.

Celebrezze, 210 F. Supp. 219, 228 (W.D. Ark. 1962); Clifton v.

Celebrezze, 228 F. Supp. 251, 255 (N.D. Tex. 1964); Scott v.

Celebrezze, 241 F. Supp. 733, 736 (S.D.N.Y. 1965); Farnsworth

E Chambers Co. v. United States, 171 Ct. Cl. 80, 87-88, 845 F. 2d

—

47

The rule announced in the Morelli case supra, and the

other cases cited above, allow hearsay evidence to be

received by administrative agencies “so long as the evi-

dence upon which a decision is ultimately based is both

substantial and has probative value.” (Emphasis sup-

plied.) The Supreme Court held many years ago in the

case of Consolidated Edison Co, v. NLRB, 305 U.S. 197,

230, 59 8. Ct. 206, 83 L. Ed. 126 (1988):

* * * Mere uncorroborated hearsay or rumor does

not constitute substantial evidence.

In Willapoint Oysters, Inc. v. Ewing, supra the court

said:

* * * “S)ubstantial evidence” includes more than

“uncorroborated hearsay” * * *. Id. at 691.

In Hill v. Fleming, 169 F. Supp. 240 (W. D. Pa. 1958),

the court held:

In our opinion these hearsay statements, in the

light of the whole record, are not substantial evi-

dence * * . A finding of ultimate fact not reason-

ably supported by substantial evidence should be set

aside. Id. at 244.

Mere uncorroborated hearsay or rumor does not

constitute substantial evidence. Id. at 245.

In United States v. Krumsiek, 111 F. 2d 74, 78 (1st

Cir. 1940), the court stated:

Conclusion of facts must be supported by substan-

tial evidence. * * * “Substantial evidence is more

than a mere scintilla. * * * Mere uncorroborated

hearsay or rumor does not constitute substantial evi-

- dence.” Id. at 78.

In 82A C. J. S. Evidence § 1016 (1964), it is stated:

Mere uncorroborated hearsay or rumor does

not constitute substantial evidence, nor does inher-

577, 582 (1965); Loral Electronics Corp. v. United States, 181

Ct. Cl. 822, 832, 387 F. 2d 975, 980 (1967); Robert M. Viles,

The Social Security Administration Versus The Lawyers * * *

And Poor People Too, 40 Miss. L.J., 24, 86-52.

ently improbable testimony, a guess, or surmise, con-

jecture, or speculation. Id. at 631.

In Frank Camero v. United States, 170 Ct. Cl. 490,

493-94, 345 F. 2d 798, 800 (1965), the court held:

* * © The Supreme Court has construed “substan-

tial evidence” to be “* * more than a mere sein-

tilla. It means such relevant evidence as a reason-

able mind might accept as adequate to support a

conclusion.” Consolidated Edison Co. v. NLRB, 305

U.S. 197, 229 (1938). The Court added (at 230),

“Mere uncorroborated hearsay or rumor does not

constitute substantial evidence.“

The Consolidated Edison Co. case, supra, is unques-

tionably a correct statement of the law. See NLRB v.

Fansteel Metallurgical Corp., 806 U.S, 240, 257, 59 8.

Ct. 490, 88 L. Ed. 627 (1939); NLRB v. Columbian

Enameling & Stamping Co., supra; and Universal Camera

Corp. v. NLRB, 340 40 US. 474, 477, 71 S. Ct. 456, 95

L. Ed. 456 (1951).

In Willapoint Oysters, Inc. v. Ewing, supra, the court

held that hearsay evidence was admissible in an agency

hearing, saying:

* * * The receipt of irrelevant, immaterial and

hearsay evidence is no cause for reversal of an ad-

ministrative order though the validity of the order

* rest upon conjecture, guess or chance, Id.

at 690.

However, the court stated that the findings must be

in accord with substantial evidence, and could not be

based on hearsay alone, stating:

* * * However, since substantial evidence in-

cludes more than “uncorroborated hearsay” and

“more than a mere scintilla,” the findings, to be

valid, cannot be based upon hearsay alone, nor upon

hearsay corroborated by a mere scintilla. * * *

[Emphasis supplied.) Id. at 691.

49

We think the court correctly stated the law in NLRB

v. Amalgamated Meat Cutters, 9 Cir. 1958, 202 F. 2d

671, 673, when it said:

* * lAlgeney findings “cannot be based upon

hearsay alone“.

The testimony of the “expert” Dr. Leavitt, cannot

serve to corroborate the hearsay reports of the absent

doctors. His testimony was correctly described by the

trial court as “hearsay on hearsay.” Multiple hearsay

is no more competent than single hearsay. United States

v. Grayson, 2 Cir., 1948, 166 F. 2d 868, 869; United

States v. Bartholomew, 137 F. Supp. 700, 709 (W. D.

Ark. 1956).

Accordingly, we hold that mere uncorroborated hear-

say or rumor does not constitute substantial evidence.“

Furthermore, the agency must look at the record as a

whole and not just to the part of it that coincides with

its views. Universal Camera Corp. v. NLRB, supra;

Farnsworth & Chambers Co. v. United States, supra;

Loral Electronics Corp. v. United States, supra.

Applying these principles to the case before us, it is

clear that the hearsay reports of the absent doctors were

admissible in evidence before the hearing examiner. This

is also true with respect to the testimony of the so-called

“expert” Dr. Leavitt. However, this leaves the

with nothing but uncorroborated hearsay, which the

claimant has objected to, on which to base his decision.

Under the decisions, such evidence is not substantial evi-

dence, This is especially true in view of the fact that

on the other side of the case we have the live and direct

legal testimony of the claimant and his doctor which

supports his claim. The trial court was correct in his

remarks in the record that if he was called up o ren-

»The case here is to be distinguished from the case of James

Alvin Peters v. United States, —— Ct. Cl. [No. 426-66, March

14, 1969], in which the writer dissented, where the court held

that the alleged hearsay evidence was admissible as a declara-

tion against interest and as an exception to the hearsay rule.

See also Conn v. United States, 180 Ct. Cl. 120, 180, 876 F. 2d

878, 883 (1967).

50

der a final judgment in the case, he would render it for

the claimant and against the secretary, because the only

probative evidence in the case that was not hearsay and

that was substantial was in favor of the claimant. We

agree that he would have been justified in entering judg-

ment for the claimant for disability benefits in view of

the foregoing and based on the law announced by the

courts in other similar cases, a discussion of which fol-

lows:

The case of Mefford v. Gardner, 6 Cir., 1967, 383 F.

2d 748, 759-61, was very similar to the case before us.

The claimant and his doctors who had treated him testi-

fied he was disabled. The examiner had an “expert”

doctor (Dr. London) to examine the various medical re-

ports the examiner had introduced and then testify, with-

out ever having seen or treated the claimant, to the

effect the claimant was not disabled. This is exactly

what Dr. Leavitt did in the case here. The court in that

ease held that such testimony was not substantial evi-

denee, stating:

Such a statement as Dr. London’s cannot be con-

sidered substantial evidence in view of the fact that

he never saw or examined appellee, and in face of

the medical evidence of physicians who not only

treated him over a long period of time but also ex-

amined him and came to the determination that he

was totally and permanently disabled. Id. at 759.

The case of Hayes v. Gardner, 4 Cir., 1967, 376 F. 2d

517, is another instance where this same procedure was

followed. There a Social Security Administration doctor,

named Dr. Glendy, did not examine the claimant but

based his testimony that the claimant was not disabled

on an examination of the medical record. The claimant

and the doctor who had been treating her testified she

was disabled. The court held that Dr. Glendy’s testimony

was not substantial evidence. In this connection, the

court said:

s See pp. 36a and 37a of the Record.

51

* * * We reach the conclusion that, * * * the

opinion of a doctor who never examined or treated

the claimant cannot serve as substantial evidence to

support the Secretary’s finding. [Emphasis sup-

plied.] Id. at 520-21.

The courts reach the same decision even if the Secre-

tary’s expert doctor has examined the claimant (usually

one time) for the purpose of testifying. This occurred

in Sebby v. Flemming, 183 F. Supp. 450 (W.D. Ark.

1960). The testimony of the Secretary’s doctor that the

claimant was not disabled conflicted with that of the

claimant’s doctors who had been treating him. The court

said:

After reading and considering the whole of the

record, the court does not find that the Referee’s

conclusions are supported by substantial evidence.

The only evidence in support of the Referee’s find-

ings is the medical report of Dr. Hall, [the Secre-

tary’s doctor] based upon one examination of the

plaintiff. * * * Id. at 454.

In Colwell v. Gardner, 6 Cir., 1967, 386 F. 2d 56, the

Secretary’s doctor, after one examination of the claimant,

testified that he was not disabled. This conflicted with

the evidence of the doctor who had been treating the

claimant. The court held that the evidence of the Secre-

tary’s expert was not substantial evidence, and the deci-

sion of the examiner based upon it could not be sustained.

It appears from the facts in many of the foreging

cases, as well as in the one before us, and we assume in

those cases being held in abeyance by the trial court,

that there is a widespread practice by hearing examiners

of having testifying doctors accompany them, and, in a

manner of speaking, “ride the circuit” with them, for

the purpose of examining medical records and reports

of claimants and then testifying as experts, with or with-

out a cursory examination of the claimants, as to their

disability. This procedure should be frowned upon, if

not eliminated altogether. Such testimony is not sub-

stantial evidence, and, if objected to, will not, standing

alone, support a decision of the examiner adverse to the

claimant. This is especially true when such testimony

is in conflict with that of the claimant and his doctor

who has not only examined him but has also treated him

over a long period of time.

The claimant objected to the introduction into evidence

of the medical reports and records of the absent doctors

on the ground that they were hearsay and not substan-

tial evidence. We agree that they were hearsay, but, as

stated above, were admissible into evidence before the ex-

aminer. However, we conclude that they were not sub-

stantial evidence. The decision of the court in Hill v. Flem-

ing, supra, is a case in point. The facts in that case

are very similar to those in the instant case with respect

to the admission of medical records and reports of absent

doctors into evidence before a hearing examiner over the

objection of the claimant that they were hearsay. In that

case a librarian of a medical clinic was permitted by

the examiner to make a report of some of the contents

of the medical records of the clinic as to examinations

and treatment of the claimant that were adverse to him.

The court in that case held that the librarian’s report

jr hearsay and was not substantial evidence. The court

said:

In our opinion these hearsay statements, in the

light of the whole record, are not substantial evi-

dence to negative either the plaintiff’s disability or

his incapacity since prior to March 31, 1948 to en-

gage in any gainful occupation. The record as a

whole leaves the conclusion of the Council and Ref-

eree on the ultimate facts without reasonable foun-

dation. * * *

* a * *

In our opinion this secondhand hearsay evidence

submitted by the Librarian of Falk Clinic is too

remote and not at all probative of the ultimate facts

in issue and hence is not substantial evidence to

support the conclusions and decision of the Council.

Mere uncorroborated hearsay or rumor does not

constitute substantial evidence. Consolidated Edison

Co. of New York v. National Labor Relations Board,

1938, 305 U.S. 197, 59 S. Ct. 206, 83 L. Ed. 126;

National Labor Relations Board v. Amalgamated

Meat Cutters, 9 Cir., 1953, 202 F. 2d 671, 673.

The evidence on which the Council and Referee

purported to rely is not only of “small probative

value” but “in relation to the type of evidence rea-

sonably anticipated in the circumstances of the case,

that very slight proof must be characterized as un-

substantial.” At most it was “handpicked fragments

of evidence” merely enough to raise a “suspicion”.

In our opinion there was no substantial evidence

to contradict the medical opinions that plaintiff was

totally and permanently disabled; neither was there

any affirmative evidence that he had or could have,

in view of his limited education and physical condi-

tion, engaged in any substantial gainful employment.

Id. at 244-45.

As we have already pointed out, the trial judge could

have entered a judgment in favor of the claimant for

disability benefits, because the only substantial evidence

before him was in favor of the claimant. However, in

his commendable efforts to be fair to both parties, he

remanded the case to the Secretary for a full new hear-

ing. In view of the fact that not only the instant case,

but also the three cases being held in abeyance by the

trial court, will be disposed of in accordance with the

guidelines which we have laid down in this opinion, we

— 2 that the order of the trial court should be af-

rm

Accordingly, we deny the claimant’s motion to dismiss

the appeal and affirm the judgment of the trial court,

and remand the case to the Secretary for a full new

hearing before a different examiner as ordered by the

trial court and in accordance with this opinion.

AFFIRMED AND REMANDED.

54

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 26238

WILBUR J. COHEN, SECRETARY OF

HEALTH, EDUCATION, AND WELFARE, APPELLANT

versus

PEDRO PERALES, APPELLEE

Appeal From the United States District Court

for the Western District of Texas

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(October 10, 1969)

Before COLEMAN and GOLDBERG, Circuit Judges, and

SKELTON, Judge of the Court of Claims*

PER CURIAM.

Attorneys representing the administrative Law Section

of the American Bar Association have filed an Amicus

Curiae Brief in this case in which they urge the court

to modify its opinion so as to hold that the Administra-

tive Procedure Act applies to and governs hearings on

disability claims under social security legislation, and

especially with respect to the right to cross-examination.

We have carefully considered this brief, but have con-

cluded that our decision in our original opinion is correct

in this regard.

The Secretary of HEW has filed a Petition for Re-

hearing and a Suggestion of Rehearing En Banc. He

has apparently misconstrued our opinion because the main

thrust of his Petition for Rehearing is to the effect that

under our decision uncorroborated hearsay evidence could

* Sitting by designation as a member of this panel.

—

55

never be substantial evidence that would support a deci-

sion of a hearing examiner adverse to a claimant in a

social security disability case. Because of this erroneous

interpretation of our opinion, the Secretary raises the

spectre of a large increase in the number of cases of

this kind that would have to be litigated in Court be-

cause of our opinion. He intimates that our decision

would require medical witnesses of the HEW as well as

those of the claimant to always testify in person at the

hearing. All of these positions are unfounded.

Our opinion holds, and we reaffirm, that mere uncor-

roborated hearsay evidence as to the physical condition

of a claimant, standing alone and without more, in a

social security disability case tried before a hearing ex-

aminer, as in our case, is not substantial evidence that

will support a decision of the examiner adverse to the

claimant, if the claimant objects to the hearsay evidence

and if the hearsay evidence is directly contradicted by

the testimony of live medical witnesses and by the claim-

ant who testify in person before the examiner, as was

done in the case at bar. This is especially true if the

claimant requests that the absent medical witnesses of

the HEW who authored the hearsay evidence, be sub-

poenaed to testify at the hearing and the examiner fails

or refuses to summon them.

When these conditions are not present, there is nothing

to prevent an examiner from basing his decision, which

is adverse to the claimant, on hearsay medical evidence,

if such evidence has sufficient probative force to support

his decision.

We are not impressed with the Secretary’s argument

that our opinion will cause an increased number of social

security disability cases to be filed in court, as we do not

believe this will happen. But even if this should be the

result, it would not be persuasive. If it should become

necessary for the courts to try more of these cases in

order to dispose of all of them in accordance with law,

they will not shirk their responsibility in this regard.

We realize that the HEW is required to handle thousands

of these cases each year and is no doubt anxious to sim-

plify the procedure for disposing of them. However, each

56

case is different from the next one and must be tried

and decided on its particular facts and according to law.

It is not possible for a case of this kind to be decided

through a stereotyped procedure that resembles the work-

ing of a computer. A social security disability claimant

and his employer have paid for his coverage under the

social security law whether they wanted it or not. He

should not be denied the benefits of this law solely by

hearsay evidence under the conditions outlined in our

opinion.

The Secretary contends that if medical witnesses are

required to testify in person, this will increase the costs

of the hearings and many of them will refuse to serve.

If the costs are increased, they will be paid out of the

social security trust fund to which the claimant has con-

tributed. This is one of the purposes of the fund. If a

doctor refuses to serve, another can be obtained. Liti-

gants in other types of personal injury and disability

cases manage to acquire the evidence of medical wit-

nesses. There is no reason to excuse the HEW from this

requirement in a proper case. These arguments involve

details that have little if anything to do with the merits

of the case before us.

The Petition for Rehearing is Denied and no. member

of this panel nor Judge in regular active service on the

Court having requested that the court be polled on re-

hearing en banc, (Rule 35 Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 12) the Petition for

Rehearing En Banc is Denied.

57

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OcTOBER TERM, 1968

No. 26238

D.C. Docket No. Civ. 67-77-SA

WIBUR J. COHEN, SECRETARY OF

HEALTH, EDUCATION, AND WELFARE, APPELLANT

versus

PEDRO PERALES, APPELLEE

Appeal From the United States District Court

for the Western District of Texas

Before COLEMAN and GOLDBERG, Circuit Judges, and

SKELTON, Judge of the Court of Claims“

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Western District of Texas, and was argued by counsel;

On consideration Whereof, it is now here ordered and

adjudged by this court that the judgment of the said

District Court in this cause be, and the same is hereby,

affirmed and this cause be, and the same is hereby re-

manded to the Secretary for a full new hearing before

a different examiner as ordered by the trial court, and

in accordance with the opinion of this Court;

It is further ordered, that appellant pay to appellee,

the costs on appeal to be taxed by the Clerk of this Court.

May 1, 1969.

Issued as Mandate: October 22, 1969.

* Sitting by designation as a member of this panel.

58

SUPREME COURT OF THE UNITED STATES

No. 1302, October Term, 1969

RoBERT H. FINCH, Secretary of

Health, Education and Welfare, PETITIONER

V.

PEDRO PERALES

ORDER ALLOWING CERTIORARI—Filed April 20, 1970

ne 2 “nea aR

e

The petition herein for a writ of certiorari to the :

United States Court of Appeals for the Fifth Circuit is n

granted, and the case is placed on the summary calendar.

And it is further ordered that the duly certified copy

of the transcript of the proceedings below which accom-

panied the petition shall be treated as though filed in

response to such writ.

SUPREME COURT OF THE UNITED STATES

No. 1302, October Term, 1969

RoBerT H. FINCH, Secretary of

Health, Education and Welfare, PETITIONER

v.

PEDRO PERALES

ON CONSIDERATION of the motion of the respondent

for leave to proceed in forma pauperis,

IT IS ORDERED by this Court that the said motion

be, and the same is hereby, granted.

April 20, 1970

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

Social Security Administration

BUREAU OF HEARINGS AND APPEALS

NOTICE OF HEARING

In the case of

Pedro Perales

(Claimant—Wage Earner)

465-38-6398

(Social Security Account Number)

Claim for Period of Disability and Disability

Insurance Benefits

TO: Mr. Pedro Perales

618 Avenue A

San Antonio, Texas 78207

Pursuant to your written request and provisions of sec-

tion 205(b) of the Social Security Act, a hearing will be

held by the undersigned, a Hearing Examiner of the

Bureau of Hearings and Appeals on the 12th day of

January 1967 at 9:00 a.m. o’clock in Room 215 (Grand

Jury Room) of U.S. Post Office & Courthouse Building,

615 E. Houston, San Antonio, Texas

(Number and Street) (City) (State)

The general issues to be determined are whether you are

entitled to a period of disability under section 216(i)

and to disability insurance benefits under section 223 (a).

The specific issues to be decided are: (1) Whether you

have the required insured status under the law; and, if

so, as to what date(s); (2) The nature and extent of

your impairments; (3) Whether your impairment can

be expected to be of indefinite duration or to result in

death; (4) Your ability to engage in substantial gainful

activity since your impairment began; (5) When your

disability, if any, began, and how long it has or can be

expected to continue.

This hearing involves your application(s) filed on

April 20, 1966.

(Date)

You should be prepared to prove that you were under a

disability on or before date * — hearing.

ate)

It may be to your interest to have your physicians ap-

pear at the hearing at your own expense to testify on

your behalf. Be prepared to furnish: your entire work

history, including names of employers, dates of employ-

ment and a description of duties performed; schools and

training; names of physicians who have examined or

treated you; and periods of hospitalization with names

of hospitals.

READ THE OTHER SIDE OF THIS NOTICE FOR

IMPORTANT INFORMATION REGARDING HEAR-

ING

REMARKS:

IMPORTANT—Please sign and return at once the en-

closed postal card notifying me whether you will be pres-

2 the above time and place. No postage is required

on this card.

/s/ Frank J. Buldain P. O. Box 61529

(Hearing Examiner) (Mail Address)

January 2, 1967 Houston, Texas 77061

(Date)

ce: Representative

Richard Tinsman, Esq.

National Bank of Commerce

San Antonio, Texas

Telephone: CA. 8-0611, ext. 4357

(Name and Address)

Form HA—507.1la (Over)

(1-64)

HEARING FILE

— «~.

IMP! 61

Wha INFORMATION

An individual w “Den hilite,?

An aful activity 1b Oy “Dionbitity

cal or mental imble to engage in any substantial

for a long and i injury, illness, or other physi-

improvement, or, which is expected to continue

a “disability.” 2 time without any significant

tion of disabilit in death, may be found under

his impairment qual would not meet the defini-

foreseeable futu, reasonable effort and safety,

him from engagmedied or controlled within the

does not mean textent that it will not prevent

ever, the impaimstantial gainful activity. This

individual fromiividual must be helpless, How--

tion but in andt be so severe as to prevent the

ering his age, e

: The. not only in his usual occupa-

Ped be stapbstantial gainful work, consid-

should be oF previous training and work ex-

and extent of the impairment

medical evidence,

The date and

especially for yee at Hearing

reaso \

Even though tis hearing have been set aside

ay dispositifailure to appear without good

ee Borger of your Request for Hearing.

card stating tH reason, any postponement will

Examiner pro: case. If an emergency arises

the Hearing Ince after you mail the postal

he can reschec be present, notify the Hearing

give your reasons. Also advise

the earliest date after which

The law place! for hearing.

to support yo

your impairmou Should Do

necessary by» burden of submitting evidence

hearing all mou must show the severity of

ble medical evidence, and where

medical tests. Bring to the

ther evidence not already pre-

sented in your case: (1) A report from each doctor who

has examined or treated you; (2) The results of labora-

tory tests and clinical findings; (3) Copies of medical

evidence submitted to insurance companies, the State

Compensation Commission; (4) Hospital records, If you

find it impossible to obtain these latter records, notify

the Hearing Examiner promptly before the day of the

hearing. The Hearing Examiner may ask you to undergo

a medical examination which will be performed at no

expense to you.

The Hearing Examiner will question you about the types

and dates of your past employment, earnings, schools you

attended, special training and present daily activities.

You should be prepared to give such information at the

hearing.

Conduct of Hearing

You will have an opportunity to examine the documentary

evidence on the day of the hearing. If you wish to exam-

ine it before the day of the hearing you may do so at the

Hearing Examiner’s office.

At the hearing the Hearing Examiner will inquire fully

into the matters at issue. You may present evidence

either in the form of written documents or the testimony

of witnesses, or both. You may bring your own physi-

cians or other witnesses to testify on your behalf. If

necessary, the Hearing Examiner may ask the doctor

who examined you to appear, and may bring in a voca-

tional expert to testify. Your testimony and that of any

witnesses will be under oath or affirmation, and a ver-

batim record of the proceedings will be made. You may

suggest findings of fact or conclusions of law and present

arguments orally or in writing.

Representation

While it is not required, you may be represented at the

hearing by a lawyer or other qualified person of your

choice, if you desire assistance in presenting your case.

If your representative is not a lawyer, an appointment

— —

signed by you is required; a form for this purpose may

be obtained from any local distriet office or from the

Hearing Examiner at or before the hearing.

If you have a representative you are responsible for pay-

ing his fee. The regulation permits the lawyer to charge

a specified fee without approval. The Hearing Examin-

er’s authorization is required if the lawyer wishes to

— a larger fee, or a non-lawyer wishes to charge

any fee.

If you have any other questions, your local Social Secur-

ity district office will be glad to help you.

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

Social Security Administration

Bureau of Hearings and Appeals

In the case of: Claim for:

Pedro Perales, Jr. Period of Disability and

(Claimant) Disability Insurance Benefits

Pedro Perales, Jr. 465-38-6398

(Wage Earner) (Social Security Account Number)

HEARING HELD

in

Room 215, U. S. Post Office & Courthouse Bldg.

615 E. Houston Street, San Antonio, Texas

on

January 12, 1967

APPEARANCES:

PEDRO PERALES, JR., Claimant

MAX MORALES, JR., M.D., Witness

RICHARD TINSMAN, Attorney for Claimant

Hearing Examiner Hearing Assistant

FRANK J. BULDAIN IRENE B. GREENE

INDEX TO TRANSCRIPT OF HEARING

Pedro Perales, Jr., Claimant-Wage Earner

Social Security Account Number 465-38-6398

Attorney’s objections to exhibits pp. 2-6 [fol. 35- 39]

Testimony of Dr. Max Morales,

Jr., M. D555. — beginning p. 10-32 [fol. 43- 65]

1 p. 47-62 [fol. 80- 95]

Testimony of 1 Pedro

Perales, Ir sie 70 p. 32-46 [fol. 65- 79]

2 p. 63-70 [fol. 96-103]

——w

[fol. 84] (The following is a transcript of the hearing

held before Frank J. Buldain, a Hearing Examiner of

the Bureau of Hearings and Appeals, Social Security

Administration, Department of Health, Education, and

Welfare, on January 12, 1967, in San Antonio, Texas, in

the case of Pedro Perales, Jr., a elaimant for disability

insurance benefits based on his own earnings record, so-

cial security account number 465-38-6398. The claimant

was represented at the hearing by Richard Tinsman,

Attorney at Law.)

(The hearing commenced at 9:00 a.m., on January

12, 1967)

OPENING STATEMENT BY HEARING EXAMINER:

Examiner: The hearing will come to order. This is

an appeal by Pedro Perales, social security account num-

ber 465-38-6398, from a denial of his claim by the Bu-

reau of Disability Insurance of the Social Security Ad-

ministration, for a period of disability and for disability

insurance benefits. The claimant is represented by Mr.

Richard Tinsman, a licensed practicing attorney in the

State of Texas, and it is my understanding that you are

planning for Dr. Morales to appear?

Attorney: Yes, sir, I made arrangements for him to

appear.

Examiner: Well, we will go ahead with some of the

proceedings and see—he may show up in the meantime.

Let me make a few preliminary remarks about the pro-

cedure so that you won’t be completely in the dark. I

will ask you—have you ever appeared before a hearing

of this nature?

Mr. Tinsman: No, I have not but I have talked to

other lawyers that have.

[fol. 35] Examiner: Well, you probably learned it is

quite informal. The hearing examiner is not a judge—on

the other hand, he does have some authority. We have au-

thority to issue subpoenas; we try to give direction to the

hearing; witnesses are sworn—as you can tell, Mrs.

Greene is recording everything that is said, it will be

made a matter of record.

66

Under the administrative procedures, we are not bound

by the formal rules of evidence, we are not concerned

about the hearsay rule and many similar rules. Many of

these rules are questionable. Some of the rules in some

circumstances are absolutely worthless; some others were

corporated and tied in and quite valuable.

Examiner: I believe you’ve had an opportunity to

examine the list of exhibits?

Attorney: Yes, sir, I have.

Examiner: Do you have objection to the introduction

of any of them or parts of them?

Attorney: Yes, sir, I do. Let me say this in regard

to hearsay objections. Judge Spears and others have

wished the lawyers to object on any objections we may

have well knowing the hearing examiner may overrule.

Judge Spears says he may have a different ruling, and

probably I have numerous objections.

(The attorney takes the exhibits)

Attorney: Since Mr. Perales has filed the application

for disability benefits, we have no objection No. 1 or No.

2 which he signed. We do object to No. 3 on the grounds

that nowhere is this signed by Mr. Perales. It’s simply

a report of the examiner’s impressions of the disability

interview, and in no way gives any pretense to being a

complete interview and it is not signed by Mr. Perales.

So for that reason we feel the same is hearsay and in

[fol. 36] effect the examiner is acting as a judge in this

interview as to what to put down and what not to. We

have no objection to the earnings certification—exhibit 4

—except we will bring out that when Mr. Perales worked

for Jim Walters Corporation, that in addition to the

work he was doing as a laborer, he also sold houses for

him on the weekend and they credited the earnings to his

wife.

Examiner: That would have no bearing on the merits

of this case.

Attorney: I think it has merit on the question of the

amount of earnings this man was able to make before

and the fact that—whether or not he has, in truth, not

worked any since then.

— ——

67

Examiner: The purpose of this certification is purely

to establish whether or not he has insured status and

doesn’t relate to the matter of his condition.

Attorney: Yes, sir. No. 5 is simply a finding—we

object to any fact findings that are contained in there

but for the purpose of the records, is necessary. No. 6

is signed by Mr. Perales—we have no objection to that.

Exhibit No. 7 is an interviewer’s report. It does not

even say who made this, and we object on the grounds,

number 1, it’s hearsay—we don’t know who made the

report and it clearly shows on its face that it’s not a com-

plete resume of what went on but only the interviewer's

impressions. The interviewer could put in something he

feels is significant and could have wrote something else

he feels is not significant. Exhibit 8—we object to any

fact or conclusions found there and also a jurisdictional

tyne document at this hearing. I don’t understand

what No. 9 is—we object to it because it appears to be

simply a resume of other things contained in the folder,

and, as such, it doesn’t state who made this.

[fol. 37] Examiner: Let me make a remark or two at

this time. I think a number of your objections could be

quite valid from a point of law. I'd like to point this out.

The reports of contact which were unsigned there and

which could obviously be unfair were made by representa-

tives in the scope of their employment. They are there

to, along with other documents, they just sort of give the

hearing examiner a background of what has happened.

They are not really necessary proofs. I think you will find

as we proceed here that the really important things here

are the testimony of the claimant, testimony of doctors,

and when we don’t have a doctor—we don’t always call

the doctor in. The reports are made by the doctors and we

feel that their reports are pretty accurately and carefully

made. They may make mistakes, and where there is a

contest between doctors as to what has happened, we have

a full-blown hearing; we get into the evidence later—we

have a little contest here between Dr. Morales and the

other doctors. The statute to the Social Security Act,

section 216(i), requires that the inability to engage in

any substantial gainful activity be—and here I’m quot-

ing, “by reason of any medical determinable physical or

mental impairment.” In other words, that has been con-

strued to indicate that we have to have the medical

clinical findings—any temperature, blood pressure,

things like that, to show the impairment, and the con-

clusion that this man is sick without giving his back-

ground by the doctors who examined him is not sufficient.

Attorney: Well, actually all the disability here is

favorable to Mr. Perales but to be consistent in the objec-

tions, that’s why I objected to them.

[fol. 38] Examiner: I’m giving you this background

so that you won’t concern yourself. You mentioned

Judge Spears wants you to make every objection. Also,

if this goes to appeal, I want Judge Spears to know that

many of the things in there are really of no consequence

in this hearing. The salient feature is decided in the

decision and I don’t think it’s really too much to worry

about because we do follow the Administrative Pro-

cedures Act. I just want to allay your fears that we

are not going to grab up some statements from investiga-

tions made some five or six months ago, and make this

conclusion and hang our hat on it and that sort of thing

—I just want to allay your fears.

Attorney: For the record, I do want to make these

objections.

Examiner: All right, sir. Will you go ahead with

your objections?

Attorney: We object to any findings of fact on ex-

hibit No. 9, on the fact this is simply an award which

is being appealed which has no bearing on this appeal.

We object to exhibit No. 13a, b, and e, on the grounds

that the medical report by Dr. Langston is a hearsay re-

port. Dr. Langston is not here for cross-examination to

develop some of the things that he may have found and

to question him on some of his findings. We object to

exhibits 16e and 16d on the grounds that this is simply

a medical report by James M. Bailey, and Dr. Bailey will

not be here for cross examination. We further object

that there is no showing that either Dr. Langston or Dr.

Bailey is licensed to practice in the State of Texas, which

is necessary in order to give competent testimony. We

object to exhibit 17a and 17b which is a case development

sheet by Dr. Howard Moses for the reason that Dr.

Moses apparently has never seen the claimant and any-

[fol. 39] thing that Dr. Moses said actually is just based

on the evidence that he’s examined and that’s the func-

tion of the hearing examiner of the Social Security Ad-

ministration. We object to exhibits 18a, 18b, and 18c

on the grounds that this is hearsay information.

Examiner: Will you speak a little louder please?

Attorney: These are hearsay information and any

records that are here from the Baptist Memorial Hos-

pital have not been properly proved up under the Busi-

ness Records Act. I will further object to exhibit 18c

on the grounds that Dr. Langston did not conduct the

EMG examination, and it’s simply making an interpre-

tation from a hospital record, and the person making the

hospital record is not available for examination.

(Dr. Morales enters the hearing room at 9:25 a.m.)

Examiner: I have noted your objections and I will

overrule them, I will certainly bear in mind your ob-

jections during the course of development, and if there

appears some reason for striking any or all of these docu-

ments, I will certainly do so. The items identified as ex-

hibits number 1 throufh 19 are hereby admitted into

evidence.

Let me state briefly what appears to be the general and

special issues. The general issue is whether or not the

claimant is entitled to a period of disability under section

216(i) and to disability insurance benefits under section

223 (a) of the Act. Specifically we have to determine

whether he first had an insured status, and on that issue

I think we can dispose of it right quick. I think accord-

ing to the earnings certification he is covered through—

could I see the certification a minute—I think it’s July

30, 1970—it would be through September 30, 1970, he

weuld have insured status through that date. Secondly,

we want to determine the nature and severity of the im-

(fol. 40] pairments that he has because you realize that

there are many people who have physical impairments

that are still able to work. We have to take into account

many things such as their age, their education, training

70

they have received, even their personality enters into it

at times. There are just so many factors and you can’t

come up with a concrete rule and say this is the test.

You take all of these things, and the jobs that are avail-

able in and around the community where he lives, similar

to his training and education, that he can perform. As

I stated before, the severity of the impairment—we have

people with some ailments that are extremely impaired

that are ably engaged in gainful activity. I point out a

case we have. We have a vocational advisor sometimes

that appears to testify in Houston. He is a paraplegic

from the waist down but because of his training, and

so on, he is a vocational consultant; he works for Texas

Institute for Vocational Rehabilitation and he does a

wonderful job.

Attorney: I think this depends on the education the

man has. We have Mr. Perales with a third grade edu-

cation and he is not capable of doing that work.

Examiner: Third grade education, may I point out,

can also be very meaningless because a person can ac-

quire training later on, on the job. Sometimes a person

with a very small amount of formal education is very

well read and versed and extremely intelligent and prob-

ably have a let more sense than some college graduates

that I have met. So we take all of these things into ac-

count and sometimes it is a very difficult decision.

Next we have to determine the likely duration. In

this case, I believe the onset of disability was September

1965. So he would under the rule of the ’65 amendments

to the Act—in other words, can his disability be expected

to continue for a period of at least 12 months; before

[fol. 41] that it had to be of long-continued and indefinite

duration—now it’s at least 12 months.

Then we have to determine, as I have indicated before,

notwithstanding that he has an impairment, is he able

to work at some type of gainful activity. Also, we have

to establish when was the date of onset of this disability,

when did he first become incapacitated because a person

may have, for example, a slow development of a trial

heart condition but he works for years and there comes a

day when he can’t; sometimes it’s hard to establish the

71

date there. Those are the special issues which I would

like for you to keep in mind this morning.

I want to point out this; at the hearing today—we

have a right to hold supplemental hearings, we don’t like

to do it, sometimes it causes a hardship—Dr. Morales is

here today, I didn’t ask for a medical adviser to appear,

I am not so sure that I would have even had I known Dr.

Morales was going to be here, but depending on the de-

velopments today, I may want to take additional testi-

mony—I don’t know—and you will certainly have the op-

portunity to participate, if necessary. Sometimes if we

have to in matters where there are needed legal docu-

ments, then you don’t have to have a lawyer present—

there is no examination; on the other hand, there are

types of evidence where it is necessary that counsel be

present in the taking of the testimony.

We are very informal and we don’t throw the book at

people. I’ll try not to break in your train of thought;

from time to time I may step in if there is a particular

point I want to clarify. I will try to keep from it be-

cause I don’t want to break into your train of thought.

Also, please—particularly you, Mr. Perales—and doctor,

and you Mr. Tinsman, I may say some things, I may

ask a question—don’t draw a conclusion that I am taking

sides against you or that I’m taking sides for you. My

[fol.42] job is to develop the evidence regardless of

whether it’s helpful to the claimant or whether it’s help-

ful to the government. Sometimes in my questioning you

may think that maybe I am saying something favorable

to you but it may be developing a point which may be

unfavorable, so don’t draw any conclusion to my remarks

or from my questions. I’d like for it to be—for you to

be perfectly relaxed and informal—we’re just talking

across the table.

Attorney: I would like to put on—get the testimony

of Dr. Morales first so he gan get back to his patients,

even before we put on Mr. Perales, if that is satisfactory.

Examiner: It is satisfactory. I want to tell you this.

I may ask Mr. Perales a question and it might be advis-

able for your doctor to be here. I’m going to leave it up

to you; on the other hand, I may not have anything to

by reason of any medically

physical or mental impairment. Now the key word,

“medically determinable”, that’s been construed—we have

ta have clinical and pathological data on which you reach

a conclusion. In other words, to say a man is sick—if

doctor told you that you'd say, “well, how do you

[fol. 43] cific findings that support that conclusion. So

keep that in mind when you testify, please

INTERROGATION BY ATTORNEY: (Witness, Dr.

Max Morales, first duly sworn, testified :)

Q. Would you state your name, please?

A. Max Morales, Jr., M.D.

Q. Max Morales, are you a licensed physician in the

State of Texas?

A. I am.

Q. I aiid you give us a brief history of your medical

ert B. Green Hospital and Im in my fif year of prac

tice of medicine; I am a family physician and general

practitioner.

A Has Mr. Pedro Perales been a patient of your’s,

1157 127411

MA

42855 8 228733 12112255 g 2

H-. ö

he

he had had a diagnosis of a ruptured disc. Would you

tell us what this is, and how it effects the man?

Would you amplify your question so I can

Attorney: All right. Well, in the hospital report that

has been introduced as an exhibit here in this hearing—

Doctor: Which hospital are we talking about?

Attorney: This is Nix Hospital report, doctor.

Dr. Morales: It reads, going down in the middle of

Sits peragragh here on this report hy a Dr. Ralph Muns-

no evidence of an intradural mass. Likewise the anterior

aspect of the canal appears normal. Accordingly, the

procedure is discontinued after the closure of the muscles,

fascia, and the subcuticular layer being approximated

ted catgut and continuous dermos suture

close the skin. (Note for record: this is being

quoted from Nix Hospital report.)

Attorney: Can you just tell us in plain language

what that means, sir?

Examiner: Let me see if I can’t help you, Mr. Tins-

man. Let me gay I follow this, doctor, and that if I fol-

low this, that’s the description of the surgery as it is per-

formed, is it not?

Examiner: Where he describes the operative pro-

cedure?

Dr. Morales: That’s right.

(fol. 46] Examiner: What was the question you had

in mind?

Attorney: The question is, what was his condition

before this and generally what is this procedure? What

Berea ——̃ ͤ ͥ ͤ— —

is the attem)

procedure?

Examiner

* — an F 75

. Id

— of dure? Why do they do this

dicated by th

want to kno there are pauses in the rec-

—is that wr@d it up I might interject in

Attorney :° after, Mr. Tinsman, is the

sults are, wiition prior to surgery as in-

laminectomy Was — and you

con ition „ W. Co’ d be expected

found was know?

Dr. Morads, generally what the re-

apparently man is left in after a hemi-

truded intewhether or not Mr. Perales’

type of proith the—what Dr. Morales

one here, althis general condition.

there may I am interpreting here. He

brae and ttive diagnosis—probabl

wy close La man would operate this

with pressts reasons. The most logical

cedure he he used, is that he

ure on nerves which li

bone, or es 4}; “

(fol. 47] ig, ning with a protruded dise

tly h 1e got in and did his pro-

2 uality he had a nerve root

That’s h? rotruded intervertebral disc

Attorn e opinion, was sufficient

Dr. Mor happened to be in that area

lamina of from this report but ap-

they can 2 his opinion, was enough to

L-5, but yf the nerve in this region.

Attorne

us eondig hemi

condita hemi, meaning half

sistent wi the vertebral body mh

————— ——

76

Q. Now would you tell us, on your examination, after

you made the examination, what the diagnosis was that

you made on Mr. Perales—what tests you gave to con-

firm this diagnosis?

Examiner: This was on the 18th of April, 66 that

you are speaking about?

Attorney: Did you make the diagnosis on the first

visit or did you go ahead and have additional—

Dr. Morales: No, I didn’t make a diagnosis on the

first examination. Let me qualify something here—you

said this was going to be rather informal.

Examiner: Yes.

Dr. Morales: I’d like sort of to resound a discussion

of my thinking.

Attorney: Yes, go ahead—read from your notes.

Dr. Morales: I think it will give a clear picture of

what I think about this man. You take a man that

walks in and says he hurts; he says another doctor put

him in the hospital and made a lot of studies, operated on

him, did this and this, you can’t really jump to conclu-

[fol. 48] sions and say, oh, you got a strained disc or

ruptured disc”—you can’t make a supposition like that.

If you ever learn anything about the patient it’s because

you work him up and the information arrives to you in

a very slow, painstaking way. You go through the pro-

cedure of a routine physical examination, you try to get

hold of all reports and conversations with the doctors to

see what took place, you take x-rays, you may send him

down to physical therapy, you yourself may do some

treatments in your office in which you hope some of the

information will begin to make itself clear. This is dif-

ferent from the time you get a patient that nobody has

ever seen or laid his hands on them, but when you get

a patient that’s already been treated by another physi-

cian and had a lot of things done, series of studies made

on him, then you don’t just jump into and make a

diagnosis right there.

Examiner: In other words, you make your own de-

velopment?

Doctor: That’s right. In other words, over a period

of time, you feel like you know what this man’s got in

——

medcosonalator and some diathermy to the area where he

ol. 49] complained the most. The x-rays did not show

so I had to continue to see him over a good period of time.

During all this time that he kept coming in and I kept

treating him, he never changed his story one bit. I for-

got how many times I’ve seen him, some thirty times or

so—always the same complaint, low back pain, inability

to stand for long periods of time, unable to sit for pro-

longed periods of time, swelling of his feet, his complaint

of pain in the low back which radiated down to numbness

in the left buttocks, and then pain down the left ex-

tremity. My impression at this time was not the first

day but slowly over a period of time—my impression

began to center on the possibility that he had a severe

back sprain in the lumbo-sacral spine with possibly a

ruptured dise in this area. Now I know Dr. Munslow

had worked him up as he had entertained himself with

the possibility of a ruptured disc. We did an x-ray

which revealed some contrast material which was in-

stilled in the spinal cord which indicated a myelogram

had been taken somewhere in the past. It indicates some-

body else besides me had also entertained the thought of

ruptured disc.

78

Examiner: In the records you have seen, is there any

report of myelogram having been taken?

[fol. 50] A. I think Dr. Munslow said something there

about a myelograph. Now in my own x-ray which I took

the 24th of April by Dr. A. Thaggard, he says, the lumbo-

sacral spine examination 10 days ago, no appreciable

change. Again no definite well localized significant ap-

pearing bone or joint abnormality was found. However,

there are old laminectomy defects of L-4-5 and S-1 and

a moderate amount of opaque material remains in the

spinal canal from previous myelography. So from this

you have to assume from interpretation of the x-rays

that a myelograph had been done, and you don’t do it un-

less you very strongly suspect a ruptured disc. This is

not a procedure which is done lightly; it's a serious op-

erative procedure; it has consequences which sometimes

one doesn’t anticipate and there is no physician which

would undertake to do such an examination lightly.

Examiner: That’s why I’m asking you. I want to

find out if a myelogram was performed, I think it’s quite

important. Counsel, I think you are probably in the best

position to furnish that evidence, even though we don’t

have it here today I will certainly give you an opportu-

nity in the next two or three weeks—

Attorney: Here is a repeat myelogram, sir, so obvi-

ously it was the second one.

Examiner: Well—oh, this report—that’s exhibit 10d.

Dr. Morales: This is interpreted by Dr. O’Neill as a

repeat myelogram, and again it shows—demonstrates

most of the previousiy injected Pantopaque to be in the

subdural space in the lumbar region. So there is a defi-

nite indication that even prior to this one there had al-

ready been one.

[fol. 511 Examiner: What are the findings based on

that myelogram—are they stated?

Doctor: The irregularity in the contour of the opaque

media, have little or no significance because of the fact

most of this opaque media is in the subdural or epidural

—_ The possibility of arachnoiditis must be consid-

Examiner: What’s arachnoiditis?

79

A. The immediate covering of the spinal cord mem-

brane has a very fine mesh of blood vessels and capil-

laries which is called the arachnoid, and an inflammation

this fine cover which could be precipitated by either bac-

teria or a chemical irritation. Might have been a chemi-

cal irritation he’s talking about but at any rate, could I

continue—I think we're just wasting time discussing this,

here. I am a family physician and see somewhere be-

tween 800 or better than 800 patients per month. A

good number of these patients are laborers who have hurt

themselves or have genuine complaints and some are

phony complaints, and I am so busy that I can’t waste

my time on a malingerer or someone that’s just using me

for his own means, so, quickly, I try to discover if a man

is sincere and legitimate when he has a complaint of long

standing like this, and if I find that he’s just using me

and taking up my time, I try to get rid of him. Now

at no time have I been impressed that I did not have

genuine complaints here.

Now I’d like to add another thing as to how I arrive

at what I think I know about this man. It’s a matter

of professional judgment. After he has been in practice

for a good period of time he develops his judgment, and

this is the only thing he can rely on sometimes in mak-

ing a decision as to whether he should operate or not.

[fol. 52] Quite often all of the studies are negative, yet

the patient’s condition may be such that you've got to

operate no matter what the studies said because in your

judgment there is something exists there which you can-

not prove, and I have been in that position many times

in which none of the studies have helped me. As you

get more mature in this business you learn to depend

more on your judgment and less on what the studies tell

you.

Examiner: But as you operate, you become familiar

and you find the definite symptoms—the source of the

illness?

Doctor: That's correct. I want to give you one more

phase here as to why I go on judgment quite often—all

physicians go on judgment but you have more confidence

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[fol. 551 Doctor: At my insistence, in spite of the mis-

givings of the orthopedic men.

Examiner: In this case, do you think further surgery

is indicated either to explore or to implore remedies?

A. I think a further attempt by an orthopedic man

might prove beneficial but here’s the problem that you’ve

got—it’s always easier for somebody like me to make sug-

gestions but you’ve got a problem here. First, you’ve got

Dr. Munslow who did the original work; he has not seen

the patient in years or since he discharged him and saw

him last. It is difficult to feel that he would get himself so

enthusiastic over finding something that he hasn’t al-

ready found that he would want to do any further sur-

gery. So you say, all right, if he doesn’t want to go into

surgery what else do you suggest. Well, there’s too many

orthopedic men who would not want to do surgery when

the man who did the original surgery is still in town be-

cause this is not an area where you would want to get

into unless you absolutely have to, and if there is a prob-

lem that exists here, you prefer to send him back and see

the man who did the first surgery.

Examiner: In the case of your wife, you made some

studies where objective findings were not indicated for

further surgery. Now do you have any comparable

studies or indications in this case that would indicate

surgery might be beneficial?

Doctor: No, sir, I don’t have anything very specific.

There is further myelography could be done, perhaps a

discograph could be done that would be helpful. Then it,

like I said, again, is a hazardous procedure that has to be

justified in the mind of the man who does it.

[fol. 561 Examiner: I’m sure you are familiar with

testing provided by electromyography?

A. Yes.

Q. Have you seen the report of the electromyograph

this case?

Examiner: That’s exhibit 18a, b, and c—the report

of the electromyograph.

Dr. Morales: Mr. Buldain—

Examiner: Just a second, doctor, I want to get this

report of Dr. Richard H. Mattson. Apparently he per-

formed the electromyographic study and Dr. Langston

took the report and gave his interpretation. I see—Dr.

Mattson, his impression. I'd like to have a copy of Dr.

Mattson’s report in the record—do you have another

?

— No, that’s the only one I have.

Examiner: This will be exhibit No. 20. Doctor, would

you also not only look at Dr. Mattson’s but Dr. Lang-

ston’s?

Doctor: Yes. Dr. Langston is going on the interpre-

tation of the report given by Dr. Mattson but we can only

use Dr. Mattson’s report like we use a report of an x-ray

taken. Now because an x-ray doesn’t show something

doesn’t mean that absolutely there is nothing there—be-

cause electromyography here does not show a great deal

does not mean absolutely there is nothing there. We can-

not allow ourselves to be in the position that with those

60 minutes Dr. Mattson worked with the patient that he

is in a better position than we are to assume that there

is or is nothing wrong with the patient, from the results

of a study which can be interpreted and quite differently

by different interpreters.

(fol.57] Examiner: Well, you see, doctor, this is my

dilemma— follow your rationale and in many respects

it’s quite sensible. On the other hand, I’ve got the propo-

sition—the law states that there be a medically deter-

minable impairment. We have to have something on

which we come up with a conclusion this man is hurting.

Dr. Morales: Now the medically determinable, you

also have to include there the credibility of my conversa-

tion with you and you will have to weigh my judgment,

and you will have to say, well, either I impress you with

my judgment or I don’t.

Examiner: No, doctor, let me point this out. I don’t

believe it’s your credibility that’s an issue. We have the

— are passing on the credibility of the pa-

t.

Dr. Morales: What we are trying to determine here

is medically determinable. You cannot just rely on

studies that say—well, if you don’t have a piece of paper

1

ys,

prove it but I believe he’s

tion we would be bound to say the man is entitled to re-

lief, because I am sure many doctors feel there is some-

thing wrong with a patient but they just can’t determine

what it is. So this is the serious problem we have.

to find that his judgment was correct

58] vindicated by what he found once he

he just sat back and said, well, I’m sorry, you

truth of the matter lies in the judgment of the physician

regardless of what your law says. If you're going to

have to depend only on what your eyes can see, then you

are going to come many, many times with erroneous

conclusions beca would be in that position frequently

today, right now, the hospital, if I didn’t just follow

what I feel is diagnosis and your studies do

not always indicate everything. And then, too, here is

something I’d like to say, perhaps even off the record.

Examiner: No—

Attorney: No, keep it on the record.

Doctor: All right. Lay people quite often accept what

they understand about studies as absolute gospel—gospel

like infallible. Many people—like in x-rays, many people

feel x-rays are completely infallible and we know that’s

wrong. Many people feel a poor electrocardiographic

examination is absolutely—is absolutely diagnostic of

what the patient has and that’s erroneous. I have seen

innumerable qualified instructors in cardiology who dif-

fered in interpretations of the diagnosis interpreted off

of their electrocardiogram, so that in essence the weak-

ness of many of our studies is the misinterpretation that

you could have had from one particular individual, but

once it gets put on a piece of paper it becomes the abso-

lute truth.

: Well, doctor, in this ease we have had

motion studies, we have had myelograph, we've had

x-rays, we have electromyograph, and from my limited

observation this morning—this is not a conclusion be-

cause I’ll have to study the record—there is an indication

that all of these studies indicate negative findings.

{fol.59] Doctor: No.

Examiner: Will you correct me?

Dr. Morales: Well, no, because you have seen there

are some positive findings.

Examiner: Well, I mean to say significant findings—

= study, eto they are significant I under-

Dr. — I don’t know that you can take that

on.

Examiner: Will you state it as you see it, then?

Dr. Morales: Dr. Mattson states, for instance, poly-

phasic units seen in the distribution of L-4 and/or L-5

roots that suggest old or chronic disturbance. There is

no evidence of fibrillations or decreased number of units

that would suggest any active process affecting the

nerves at present. So right there you see the man says

there is something there. (Note: Dr. Morales was quot-

ing from exhibit 20). He does not elaborate because it

is not possible to elaborate, but he has been fair enough

to show that there is something there in the distribution

of L-4 and L-5 that does suggest an old and chronic dis-

turbance, meaning that this is not a new disturbance but

a disturbance that’s been there for a long time. Now

there are some disturbances that you recognize that

couldn’t possibly have been there for a long time—they

are brand new, they are acute, but he saw nothing that

was recent. He saw only the disturbances that were old

and chronic.

Examiner: Well, he said, suggest.

A. Suggest, that’s right.

Examiner: Well, you take that with the other tests—

[fol. 60] Dr. Morales: Then you have another test

86

that tells you the very fact that Dr. Munslow operated

and the very fact that he did a laminectomy.

Examiner: There’s no question but that he had nerve

root involvement at one time—there’s no question about

that. The problem is following that, and does he have a

medical condition which prevents him from engaging in

substantial gainful activity, and it’s these tests I’m talk-

ing about following the operation—I’d like to get your

interpretation, now.

A. My feeling is that he still has some nerve root com-

pression which was not corrected by surgery, and I feel

that at the present time his condition is a permanent con-

dition, and, in the absence of any further surgery—

Examiner: You think any—you think further sur-

gery is indicated in this case?

A. I do, yes.

Examiner: That’s one thing that is very important.

What would be the nature of the surgery?

Doctor: That's not up to me to determine.

Examiner: If you were to be asked, you’re the family

physician, you’ve seen him a long time, you’ve made your

examination, you’ve seen these other reports, you’ve

stated that you think further surgery is indicated, I’m

asking you if Mr. Perales should ask you now—and I say

I’m asking you for him, Doctor, what type of surgery

would you recommend in this case—

A. I would have to tell him this. I would have to say,

Pedro, I don’t know. I would have to send you back to

either Dr. Munslow or another neurosurgeon who would

do further examinations to further determine exactly

where the problem was and the nature of the problem,

but I do think the medication and the treatment such as

[fol. 61] we have given you is not sufficient to get you

well and I don’t know anything else that will get you

well short of surgery but I can’t tell you what type of

surgery; that would be up to a neurosurgeon to decide—

that’s my honest opinion.

Examiner: All right, that’s fair.

Attorney: I think there is a positive finding in that

x-ray report.

Dr. Morales: It says there is an old laminectomy de-

— °°

87

fect of LA L-5 and S-1 and a moderate amount of

opaque material remains in spinal canal from prior

myelogram. It just shows that surgery has been per-

formed in this region—the evidence is there. May I ask

you a question.

Examiner: Sure.

Dr. Morales: Your job is to determine whether or

not he has a compensable disability, is that it?

Examiner: Well, that’s the general issue. I have to

make specific findings. I know you've been studying the

records. I have to find out the particular diagnosis based

on the medical evidence—what is wrong; and the degree

of severity; I have to determine the medical evidence that

supports the diagnosis; I need clinical and pathological

objective findings of the physician to support the diag-

nosis of the impairment. There are other things that go

with it—the vocational ability which is not in your sphere,

I don’t need to necessarily trouble you with that. I might

like to say this, counsel. This problem of objective clini-

cal and pathological findings versus the honest opinion

of a family physician that can’t put his finger on a par-

ticular thing to support his diagnosis, but there is pain

in the area and inability to function there—this has been

[fol. 62] a matter of consideration by several district

courts. I would suggest that you research this problem

and submit a brief later, and you will find—I think you'll

find a general consensus that most courts agree although

there are some courts that take exception to the view that

Dr. Morales has expressed this morning. I’m going to

have to pass on it—I can’t escape it, and a brief as I just

suggested—your study would be of assistance, so I would

like to solicit your brief along these lines. Do you have

anything further you want to ask the doctor?

Attorney: Yes. Dr. Langston, on the basis of one re-

port, one examination, says—and it doesn’t say how long

the examination was, he was impressed by the obvious

attempt of the patient to exaggerate by just standing

there and not moving, not even the uninvolved upper ex-

tremities, he has a psychological overlay to this illness

and it is suggested that he be seen by a psychiatrist.

Based on the numerous times all told since April 13th,

88

that you have seen him, do you agree with Dr. Langston

or disagree, and could you tell us why?

A. I disagree with him completely.

Attorney: Could you tell us why?

A. You have to know the man.

Examiner: Let me say this, I think we can save a

little time. Following this, there was a psychiatric evalu-

ation and as far as I am concerned there is not sufficient

evidence in the record here to indicate a psychoneurotic

condition and we can disregard that. I know what Dr.

Morales is going to say.

Lfol. 631 Doctor: In my opinion, there is no psycho-

neurotic, neither is there any psychiatric—

Examiner: That is sufficient.

Attorney: In your opinion, in the time you saw Mr.

Perales, did he attempt to exaggerate his condition or

not?

A. No.

Q. Dr. Langston also says his reach and grasp are

very limited but intentionally so. Doctor, really is it

possible to tell?

A. I think that is a completely insignificant observa-

tion and has no bearing on the real problem.

Examiner: What was that the doctor said?

Attorney: The doctor stated his reach and grasp are

very limited but intentionally so.

Doctor: I think I have a little story that will be very

significant to you, Mr. Buldain.

Examiner: Just exactly why is that—his upper ex-

tremities though they are completely uninvolved by his

injury, he holds very rigidly?

(Note: Dr. Morales proceeded to read from report)

Examiner: I think we ought to read all the para-

graph and not just take one sentence out. So, doctor, I

think you better read the paragraph as a whole before

you come along to that one sentence. Start here with

the examination.

Doctor: Read it out loud?

Examiner: No, it’s not necessary.

-

(fol. 64] Dr. Morales: I found all of this to be true of

things he cannot do and the way he moves, too, but my

interpretation of them would not be the same as the in-

terpretation of Dr. Langston. For instance, one part—

his reach and grasp was intentionally limited—in other

words, taking Mr. Perales’ whole attitude and response,

I would like to tell you one story which I think will help

you interpret what some of these men have found, and

then I’m forced to use words here which I hate.

Examiner: That's all right, we're used to these

Dr. Morales: I hate to make a reference to a person

being Anglo or Latin but it clears the air and you know

what we’re talking about.

Examiner: Well, doctor, my father was a Basque,

and I will explain to the claimant in Spanish when the

doctor is finished as I speak Spanish so you go ahead and

speak freely.

Doctor: Pedro has an intense distrust of Anglos and

his whole attitude reflects it immediately. I pursued this

one day and I asked him one day about his childhood and

he told me a story that’s very significant. I’m sure he

won’t mind my relating it now, but at one time he was

asked by a bunch of Anglos close by what his religion

was. Well, he was limited in his vocabulary and he knew

the word he wanted to use but he was unsure about the

word, and in the confusion he used the wrong word, so

he blurted out “cadillac”, and everybody had a big laugh

and said, “No, stupid, the word is catholic, not cadillac.”

This hurt him deeply, you know, and ever since then he

has disliked the English language and he does not trust

Anglos too well. Besides, other things that have hap-

pened to him in the past; and in this person here you

have a problem which a great many of the economic in-

justices which he feels, and other things, have caused him

[fol. 65] to be extremely doubtful about Anglos that he

comes into contact with, especially as it relates to his ill-

ness and almost from the instant he walks in, he walks

in with the attitude that is bound to be misinterpreted

by the person who sees him.

Examiner: In other words, you think his behavior

90

and attitude when he talks to people, that his reaction

is such that they have misinterpreted?

A. Misinterpreted and I don’t know what value you

want to put on that, but I think he’s been evaluated prop-

erly. Probably even Munslow even rubbed him the wrong

way.

Examiner: Anything further?

Attorney: I have nothing further from the doctor.

Examiner: Well, doctor, I wish you could stay but

Tm not going to insist on it. I’m going to ask Pedro

some questions. It would be interesting to get your ob-

servation on some of these things that I might ask, but

I'll leave that up to you and counsel.

Dr. Morales: I'll stay another thrity minutes.

HEARING EXAMINER QUESTIONS THE CLAIM-

ANT: (Claimant first duly sworn, testified : )

Examiner: In view of Dr. Morales’ explanation of

the antipathy of the claimant towards the Angi people,

I want to make a few preliminary remarks in Spanish

so that he will understand that I understand his position

and I’m going to try to state for the record what I say.

Examiner: I tried to explain to the claimant that I

am familiar with the fact that at times the American or

the English speaking people have taken advantage of the

Mexicans, more often times referred to as Latin-Ameri-

can, and I am sympathetic with his position. I am going

[fol. 66] to ask him some questions and they will be com-

pletely in a friendly manner. I do not intend to hurt

him but there are some things I simply have to develop

that I will have to ask him. If I ask him a question that

appears to be hostile I hope he does not think that I am

being unfriendly or hostile. Is that generally correct,

doctor?

Dr. Morales: Yes.

Attorney: For the record, you might state for the

record that he originally went to a Spanish speaking law-

yer. I understood what you said. I’m not as fluent as

you are but he was referred to a Spanish speaking

lawyer.

Examiner: Mr. Perales, how old are you?

A. I'Il be 35 the 30th of this month. a

Q. You are still a young man, aren’t you? I’d like

to be that age. And you are married?

A. Yes, sir.

Q. Do you have any children?

A. Yes, sir

Q. What are their ages?

A. The oldest one is 13 this past year, the next one

is 12, and my daughter is 10.

Q. They are all in school now?

A. Yes, sir.

Q. You live in your own home?

A. No, sir.

Q. You are renting?

A. I am renting.

[fol. 67] Q. What size house do you live in?

A. It’s a small four room house.

Q. What’s your monthly rent?

A. It was 50 but they reduced it to $45.

Q. You still live as a family group—you and your

wife and three children in this four room house?

A. Yes, sir.

Q. Tell me what time do you get up in the morning,

what time do you usually wake up in the morning?

A. I generally fall asleep around 3:30 to 4:00, in the

morning, wake up about 30 minutes later and fall asleep

again.

Q. What happens at 3:30 in the morning?

A. I go to sleep at that time.

Q. You go to sleep at 3:30 in the morning?

A. Yes, sir, 3:00 to 3:30—I mean I’m in bed but J

can’t sleep at night.

Examiner: I want to start out from the time you

wake up, but you go to sleep about 3:30 in the morning

and how late do you sleep then?

A. I sleep about an hour or two hours and wake up.

Q. Around 4:30 or 5:30?

A. I’d say about 6:30.

Q. Between 3:30 and 6:30, do you sleep pretty well—

do you?

A. Well, I toss around.

Q. But you do get rest during those hours?

A. Yes, sir.

(fol. 68] Q. And you're able to dress yourself in the

morning?

A. Well, except for my shoes and socks. My kids have

to help me put my shoes and socks on.

Q. Who helps you?

A. My kids.

Q. Your children help you with your shoes and socks,

What time do you have breakfast, about?

I don’t have no breakfast—a cup of coffee.

Your wife fixes the coffee?

She gets up and fixes coffee.

Does your wife work?

Yes, sir.

Where does she work? ;

She works at—I don’t know how to pronounce it,

a Spanish name. It’s Siguera Drug Store.

Q. Does she ever fix you any toast or bread or any-

thing like that?

A. No, sir.

Q. You just have a cup of coffee?

A. I just have a cup of coffee.

Q. What time does she leave for work?

A.

Q.

POPOPOopP

it’

About 7:30.

What do you do after she leaves home?

A. I get up and sit around, smoke cigarettes, and go

back to bed a little while, about 30 minutes or an hour.

I sleep about 3 or 4 hours during the day.

Q. During the day—3 or 4 hours. What about

lunch?

[fol. 69 A. I don’t eat.

Q. You don’t eat anything at all?

A. I have to wait for my wife to come back.

Q. What time does she get home?

A. She gets off at 6:30 and gets home about seven.

Q. So except for a cup of coffee in the morning, you

have nothing to eat until your supper?

A. That’s right.

Q. What does your supper usually consist of?

A. Sometimes consist of a sandwich—cheese sandwich,

and maybe sometimes beans or eggs, something like that.

Q. How tall are you?

A. The last time I was measured was about 5 10”.

Q. You are fairly—you look fairly well proportioned,

physically. What do you weigh, about?

A. About 215 or 220.

Q. What do you do during the day while your wife is

gone? You mentioned you sleep three or four hours a

day. What else do you do?

A. I have to lay in bed most of the time because I

can’t sit for too long at home, I can’t sit in the chair too

long. I have to be in bed. In the mornings when she

goes to work I get out and walk. It’s a four block where

I live an

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