Amicus Curiae Brief — Richardson v. Perales

INDEX

Interest of the Bexar County Legal Aid

Association i a ae 1

tsuesand Relevance. ..-.--------- 8

Summary of Argument .....-------- 8

J ed ee eS

PointI. Social Security benefits are a valuable

right, protected by constitutional due

process, and subject to deprivation only

by an administrative adjudication based

upon substantial evidence conforming to

the fundamental concepts of due process 4

Point II. The decision of the Court below is

entirely in keeping with the fundamental

principles applicable to all determinations

by men which have evolved from centuries

of experience, and to reverse this decision

on the grounds urged by petitioner would

be an unwarranted and unprecedented

departure from well established concepts. . 10

—

7 ——

Point III. Uncorroborated, ex- parte statements

introduced over proper and timely

objeetion in an administrative hearing

leading to the adjudication of substantial

rights under the social security disability

law cannot, by themselves, amount to

substantial evidence sufficient to support

a determination, when such uncorroborated,

ex-parte statements have been contradicted

by direct, competent testimony presented

at such administrative hearing 18

Po ²˙¹ r ee ae

— .

ii

TABLE OF AUTHORITIES

Cases

Aaron v. Fleming,

168 F. Supp. 291 (D.C. Ala. 1959) .....

American University v. Prentiss,

113 F. Supp. 389 (D.C. D.C. 1953) af d 214

F. 2d 282, cert. den., Wrather v. American

University, 348 U.S. 898 (1954)

Armstrong v. Manzo,

,,

Baltimore & Ohio R. R. Co. v. Groeger,

,

Bridges v. Gardner,

368 F. 2d 86 (5th Cir. 1966). .......

Bridges v. Wizon,

h

Carter-Mallace, Inc. v. Gardner,

417 F. 2d 1086 (4th Cir. 196 9))9)990

Cohen v. Perales, 412 F. 2d 44

(5th Cir. 1969), reh. den. 416 F. 2d 1250 24

Combs v. Gardner,

382 F. 2d 949 (6th Cir.1967). ....... 19

Colwell v. Gardner,

886 F. 2d 56 (6th Cir. 1967). ....... 21, 22

Consolidated Edison Co. v. N.L.R.B.,

h 14, 18, 22

Dizum v. Alabama State Board of Education,

294 F. 2d 150 (5th Cir. 1961), cert. den.

ee ee 5

Dodsworth v. Celebrezze,

349 F. 2d 312 (5th Cir. 19860) 16, 22

-Druminski v. Ribicoff,

194 F. Supp. 798 (D.C. Alaska 1961) 23

Ellicott & Meredith v. Pearl,

10 Peters 413 (1636)... . ... 2-2 ee»

-

iii

Falsone v. U. S., 205 F. 2d 734 (5th Cir. 1953)

cert. den 346 U.S. 864 (19533 *

Federal Trade Commission v. Cement Institute,

// ͤ v

Fleming v. Nestor,

868 U.S. 608 (1980) 4, 6

Gardner v. Brian,

369 F. 2d 443 (10th Cir. 19866). 9

Glaros v. Immigration & Naturalization Service,

416 F. 2d 441 (5th Cir. 1969). ----:° 15

Goldberg v. Kelly, .

25 L. Ed. 2d 287 (March 23,1970). - - - 5, 6

Grannis v. Ordean,

284 US. 885 (191) 6

Greene v. McElroy,

360 U.S. 474 (1959) ũ ũ so 10

Gunning v. Cooley,

281 U.S.90 (1930 ct 19

Hayes v. Gardner,

376 F. 2d 517 (4th Cir. 1967) .--- °° 19, 24

Hannah v. Larch,

363 U.S. 420 (1960) Pↄ¶ 7 6

Helvering v. Davis,

301 U.S. 619 (1937)))7) 66 oa 6

Hornsby v. Allen,

326 F. 2d 605 (5th Cir. 1964) ee gee ee 5

I. C. C. v. Louisville & N. R. Co.,

227 U.S. 88 (191). 10, 16

Marion v. Gardner,

359 F. 2d 175 (Sth Cir. 196) 19

Mefford v. Gardner,

383 F. 2d 748 (6th Cir. hh 24, 25

Mima Queen v. Hepburn,

7 Cranch 295 ERR a ae ee daa 13, 14, 19

Miracle v. Celebrezze,

351 F. 2d 361 (6th Cir. 19650) 16, 17, 19, 20

Mullen v. Gardner,

Mullins v. Cohen,

312 U.S. 126 (1941)

Scott v. Celebrezze,

Sherbert v. Verner,

374 U.S. 398 (1963)

350 U.S. 551 (1956)

Smith v. Gardner,

United States v. Krumsiek,

United States v. Udy,

373 U.S. 96 (1963)

361 F. 2d 822 (6th Cir.

iv

256 F. Supp. 588 (D.C. N.Y. 1966)

408 F. 2d 39 (6th Cir. 1969)

National Trailer Convoy, Inc. v. United States,

293 F. Supp. 634 (D.C. Okla. 196889)

N.L.R.B. v. Amalgamated Meat Cutters,

202 F. 2d 671 (th Cir. 19538) .......

N.L.R.B. v. Columbian E. & S. Co.,

306 U.S. 292 (19389) . . .

or ok a, ee

Ohio Bell Telephone Co. v. Public Utilities

Commission of Ohio, 301 U.S. 292 (1937)

Opp Cotton Mills v. Administrator,

18

14, 15

241 F. Supp. 733 (D.C. N.Y. 1965)

Slochower v. Board of Education, ö

1966)

111 F. 2d 74 (Ist Cir. 1940) or

U.S. ex rel. Dong Wing Ott v. Shaughnessy,

116 F. Supp. 745 (D.C. N.Y. 1953)

381 F. 2d 455 (10th Cir. 1967) . .

Washington, Virginia & Maryland Coach Co. v.

N. L. R. B., 301 U.S. 142 (193) ......

Willapoint Oysters, Inc. v. Ewing, 174 F. 2d 676

(9th Cir. 1949) cert den. 338 U.S. 860 (1949)

Willner v. Committee on Character,

15, 22

Statutes :

5 U.S. C. A. Sec. 556 (d)

42 U.S. C. A. Sec. 4058

Rules and Regulations:

20 C. F. R. 404.926

20 C. F. R. 404.927

U.S. Supreme Court Rule 42 (2)

Other:

42 Am. Jur. 2d, Administrative Law, Sec. 382

The Demise of the Righi- Privilege Dinstinction

in Constitutional Law, 81 Harv. L. Rev.

1439 (1968) 2

Individual Rights and Social Welfare: The

Emerging Legal sendin 74 Yale L.J.

1245 (1965) wack

* * ad the Law we Evidence,

McCormick, Handbook = the Law * —

Sec. 225 es

The New Property, 73 Yale L. J. 733 n

The Social Security Administration Versus the

Lawyers... and Poor People too, 39 Miss.

L.J. 371 (Part I), and 40 Miss. L.J. 24

(Part II) :

Welfare and Due Process — the Need for

Change, 1 St. Mary’s Law J. 224 (1969) .

5 Wigmore, Evidence, Sec. 1360

5 Wigmore, Evidence, Sec. 1364

IN THE

Supreme Court of the United States

OCTOBER TERM, 1970

No. 108

ELLIOT L. RICHARDSON, Secretary of Health,

Education, and Welfare,

Petitioner

VS

PEDRO PERALES,

Respondent

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF AMICUS CURIAE ON BEHALF

OF RESPONDENT

INTEREST OF THE BEXAR COUNTY

LEGAL AID ASSOCIATION

The Bexar County Legal Aid Association wishing to

file an amicus curiae brief on behalf of Respondent in the

case at bar has obtained the written consent of both Peti-

tioner and Respondent to file an amicus curiae brief as

required by Supreme Court Rule 42 (2), such written con-

sents having been duly filed with the Clerk of this Court.

8

Copies of such written consents are set forth at pages 28

and 29 infra.

The Bexar County Legal Aid Association was estab.

lished in 1952 as a non-profit organization to furnish legal

services to those inhabitants of Bexar County, Texas, who

cannot afford the services of private attorneys. The legal

staff of the Association has training and practical experi-

ence in most areas of law of consequence to low income

persons, including Social Security and public assistance law,

Attorneys on the staff of the Association presently

represent clients in San Antonio, Texas, who have been

denied benefits under the Social Security disability benefits

program as well as clients who have been denied grants

under the Federal-State Public Assistance programs admin-

istered by the Texas Department of Public Welfare. The

procedures utilized at the administrative hearings provided

in the two programs are essentially similar especially with

regard to the use of uncorroborated, ez parte statements

over timely objection by counsel, and the reliance upon

such statements as being substantial evidence even in the

face of direct, competent testimony which is contrary.

The very essence of the legal services program is to

provide low income citizens with the ability to assert rights

and challange practices which were previously beyond their

financial means to assert and challange.

The Bexar County Legal Aid Association, on behalf of

its clients situated similarly to Respondent in the instant

case and on behalf of its other clients situated similarly in

other administrative hearings before state and federal

agencies, wishes to file this amicus curiae brief for the pur-

pose of supporting Respondent’s claim that uncorroborated,

ex parte statements introduced over proper and timely

objection in an administrative hearing leading to the adjudi-

_

niin

cation of substantial rights under the Social Security dis-

ability law cannot, by themselves, amount to “substantial

evidence” sufficient to support a determination, when such

uncorroborated, ex parte statements have been contradicted

by direct, competent testimony presented at such adminis-

trative hearing.

Issues and Relevance

The precise issue presented in the instant case is whether

the court should sustain a finding of the Social Security

Administration based solely on hearsay evidence which was

admitted over timely objection and controverted by direct,

competent testimony. This question, of course, has implica-

tions which go far beyond the particular claim of Pedro

Perales, Respondent. Indeed, it is entirely possible that the

Court’s decision in this case will have a profound effect

on the entire system of administrative procedure.

The Bexar County Legal Aid Association, as a non-

profit organization organized to provide legal services to

the poor, feels that the issue presented in the instant case

has great relevance for those who must look to govern-

mental agencies for various types of assistance. Since many

such individuals are numbered among the Association’s

clients, we are concerned as to the potential effect of the

Court’s decision, which might well apply to clients of the

Association. Further, this decision will be determinative of

the same issues in other United States courts, as well as

the courts of the State of Texas.

Summary of Argument

The Bexar County Legal Aid Association will argue

first that Social Security benefits are a valuable right, pro-

tected by Constitutional due process, and subject to depriva-

tion only by an administrative adjudication based upon

=

substantial evidence conforming to the fundamental con.

cepts of due process. The Association will further argue

that the decision of the Court below is entirely in keeping

with the fundamental principles applicable to all determina.

tions by men which have evolved from centuries of experi-

ence, and to reverse this decision on the grounds urged by

Petitioner would be an unwarranted and unprecedented

departure from well established concepts. Finally, the Asso-

ciation will argue that uncorroborated, ex parte statements

introduced over proper and timely objection in an adminis-

trative hearing leading to the adjudication of substantial

rights under the Social Security disability law cannot, by

themselves, amount to “substantial evidence” sufficient to

support a determination, when such uncorroborated, ez

parte statements have been contradicted by direct, com-

petent testimony presented at such administrative hearing.

ARGUMENT

Point I

Social Security benefits are a valuable right, protected

by constitutional due process, and subject to deprivation

only by an administrative adjudication based upon substan-

tial evidence conforming to the fundamental concepts of

due process.

Amicus Curiae on behalf of Respondent contends that

Social Security benefits are a valuable right. Generally,

courts have not classified these benefits as a “property

right” in the traditional sense because doing so “would

deprive it of the flexibility and boldness in adjustment to

ever-changing conditions which it demands.” Fleming v.

Nestor, 363 U. S. 603, 611 (1960). But regardless of the

nature of the “right” to Social Security benefits, like public

assistance benefits, few would deny that it is protected by

“ |

—

due process. As J ustice Brennan observed in Goldberg v.

Kelly, ——----—__-U.S._-____—_» 25 L. Ed. 2nd 287, n. &

(March 23, 1970) :

It may be realistic today to regard welfare entitle-

ments as more like “property” than a “gratuity.” Much

of the existing wealth in this country takes the form

of rights which do not fall within traditional common-

law concepts of property. It has been aptly noted that

“[S]ociety is built around entitlement. ... Many of the

most important of these entitlements now flow from

government: Social Security pensions for individ -

uals...” (emphasis added).

Although Social Security benefits might be properly

classified as an “entitlement” rather than a “property

right,” certainly concepts of procedural due process apply

as much to the deprivation of Social Security disability

benefits as to a discharge from public employment; Slo-

chower v. Board of Education, 350 U. S. 551 (1956); or to

a disqualification to unemployment compensation ; Sherbert

v. Verner, 374 U.S. 398 (1963) ; or the right to obtain a

retail liquor store license; Hornsby v. Allen, 326 F.2d 605

(5th Cir. 1964) ; or to attend public school; Dizon v. Ala-

bama State Board of Education, 294 F.2d 150 (5th Cir.

1961), cert. den. 368 U. S. 930 (1961); or to receive public

assistance (welfare) ; Goldberg v. Kelly, supra. In almost

every case where a government agency is expected to make

adjudicatory decisions affecting the interests of citizens the

safeguards of due process must be observed, and one of

1 As to the right-privilege dichotomy in public assistant benefits, see

Welfare and Due Process — The Need for Change, 1 St. Mary’s Law

J. 224, (1969); The Demise of the Right-Privilege Distinction in

Constitutional Law, 81 Harv. L. Rev. 1439 (1968); Individual

Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.

J. 1245 (1965); The New Property, 73 Yale L. J. 733 (1964).

88

the most fundamental of these safeguards is the right of

confrontation and eross- examination. Hannah v. Larch,

363 U. S. 420 (1960). Indeed as one judge so aptly put it,

the fundamental right of confrontation and cross-examina-

tion are the handmaidens of trustworthiness in the face of

a factual dispute. National Trailer Convoy, Inc. v. United

States, 293 F. Supp. 634 (D.C. Okla. 1968).

With regard to public assistance benefits, Justice Bren-

nan in Goldberg v. Kelly, supra stated:

“The fundamental requisite of due process of law

is the opportunity to be heard.” Grannis v. Ordean,

234 U. S. 385, 394, 58 L. Ed. 1363, 1369, 34 S. Ct. 779

(1914). The hearing must be “at a meaningful time

and in a meaningful manner.” Armstrong v. Manzo,

880 U. S. 545, 552, 14 L. Ed. 2d 62, 66, 85 S. Ct. 1187

(1965). In the present context these principles require

that a recipient have timely and adequate notice detail-

ing the reasons for a proposed termination, and an

effective opportunity to defend by confronting any

adverse witnesses and by presenting his own argu-

ments and evidence orally.

Surely a claimant for Social Security disability ‘benefits is

entitled to at least the same protections as a recipient of

public assistance. As the court below observed the claimant

and his employer paid for his coverage under the Social

Security law whether they wanted it or not. See also Helver-

ing v. Davis, 301 U. S. 619 (1937).

The “right” to Social Security benefits is in one sense

“earned,” for the entire scheme rests on the legislative

judgment that those who in their productive years

were functioning members of the economy may justly

call upon that economy, in their later years for protec-

tion from “the rigors of the poor house as well as

from the haunting fear that such a lot awaits them

when journey’s end near.” Fleming v. Nestor, supra

—

—

at 610.

Amicus Curiae on behalf of Respondent contended below

and now contends that Congress specificaily protected the

fundamental rights of confrontation and cross-examination

by enacting the Administrative Procedure Act. The Act

provides:

A party is entitled to present his case or defense by

oral or documentary evidence, to submit rebuttal evi-

dence and to conduct such cross-examination as may

be required for a full and true disclosure of the facts

. 5 U. S. C. A. 556 (d).

The court below rejected this contention and concluded that

the right of confrontation and cross-examination provided

for in the Administrative Procedure Act would not prevail

over the procedures established by the Secretary of Health,

Education and Welfare under the Social Security Act. How-

ever, Amicus Curiae on behalf of Respondent believes that

this is contrary to the intentions of Congress and that the

respective Acts are not in conflict. Nowhere in the Social

Security Act or regulations thereunder is the right of con-

frontation and cross-examination specifically withheld from

the claimant, and there is no reason to impute such an

intention to the Secretary. Nevertheless, even if the two

Acts are in conflict, the Administrative Procedure Act must

control. (See Brief Amicus Curiae of the American Bar

Association filed in the court below.)

Petitioner contends in his brief at page 35 that to allow

claimants their right of confrontation and cross-examina-

tion would “...threaten to disrupt the administration of

the entire program....” Even if there were any basis for

such a bold assertion, it is settled law that administrative

convenience or even necessity cannot override the Constitu-

tional requirements of due process. Ohio Bell Telephone

a

Co. v. Public Utilities Commission of Ohio, 301 U. S. 292,

304 (1937) ; United States v. Udy, 381 F. 2d 455, 458 (10th

Cir. 1967). Petitioner’s undue concern about the “disrup-

tion of the entire program” is due to a misconception of

the holding of the court below. Thus Petitioner on page 34

of his brief urges that under the holding below oral testi-

mony of Social Security’s reporting physicians would be

required in large numbers of cases without any showing

of need. The opinion of the court below makes it abunduntly

clear that only in certain limited circumstances would it be

necessary for the agency to produce their reporting doctors

as witnesses. Petitioner implies that the opinion of the court

below requires the exclusion of all hearsay from considera-

tion. This Amicus Curiae strongly disagrees and interprets

the opinion of the court below as requiring the agency to

bring forth as witnesses their reporting doctors only when

the following elements concur: (1) The evidence adverse

to the claimant is solely uncorroborated hearsay, (2) This

uncorroborated hearsay has been duly and timely objected

to, and (3) The claimant has made out a prima facie case

for disability benefits by direct, competent testimony which

contradicts the uncorroborated hearsay.

On pages 20 and 21 of his brief Petitioner states that

by failing to request the subpoena of the reporting physi-

cians, claimant is precluded from later complaining of the

denial of his right to confrontation and cross-examination

and also that his failure would tend to corroborate the “in-

herent probability” and “probative value” of the hearsay

medical reports. This argument rests on the assumption

that the claimant not only has the burden of proving his

own case, but must additionally discredit the government’s

hearsay by subpoenaing the government’s witnesses in

order to show that they could not negate the claimant’s

direct, competent testimony. This assumption is falacious.

—

*

Once the claimant establishes a prima facie case for dis-

ability benefits by presenting direct, competent medical

testimony which contradicts the government’s hearsay med-

ical reports, then the burden must shift to the government.

If at this point, the hearing officer is still not convinced as

to claimant’s disability, he has the right, indeed the duty,

to seek corroboration of the government’s hearsay medical

reports by subpoenaing the reporting doctors as witnesses.

It is clear that the hearing officer can adjourn the hearing

in order to procure additional evidence, and it is likewise

clear he can issue subpoenas on his own initiative. See 20

C.F.R. 404.927 and 404.926. This shifting of burden is

nothing new to the administration of the Social Security

Act. The burden of proof as to disability is analogous to

the burden of proof as to employability. Once the claimant

has shown that he is disabled to the extent that he cannot

do his former work, the burden then shifts to the govern-

ment to show that the claimant could engage in some other

kind of substantial gainful work. Mullins v. Cohen, 408

F. 2d 39 (6th Cir. 1969); Smith v. Gardner, 361 F. 2d 822

(6th Cir. 1966) ; Gardner v. Brian, 369 F.2d 443 (10th Cir.

1966). Surely it can not be said that claimant’s funda-

mental right to confrontation and cross-examination has

been abrogated because the claimant did not do that which

it was incumbent upon the hearing officer to do. Nor can

it be said that because the claimant failed to call the wit-

nesses necessary to prove the government's side of the case,

he should be penalized by an assumption that the govern-

ment’s uncorroborated hearsay becomes more credible.

Certainly, it is well established that an administra‘ive

decision that is not based on “substantial evidence” is of

an arbitrary and unreasonable nature and thus would not

satisfy the requisites of due process. The purpose of this

—

—

discussion, however, is to show that the issues involved

here transcend mere technical definitions of substantial

evidence,” and involve the very core of our concepts of due

process. In every setting where important decisions turn

on questions of fact, due process requires an opportunity

to confront and cross-examine adverse witnesses. Greene v.

McElroy, 360 U. S. 474, 496-497 (1959); I. C. C. v. Louis.

ville E N. R. Co., 227 U. S. 88, 93-94 (1913); Willner v.

Commitee on Character, 373 U. S. 96, 103-104 (1963). In

the Greene case as Chief Justice Warren so succinctly put

it:

Certain principles have remained relatively im-

mutable in our jurisprudence. One of these is where

governmental action seriously injuries an individual,

and the reasonableness of the action depends on fact

findings, the evidence used to prove the Government’s

case must be disclosed to the individual so that he has

an opportunity to show that it is untrue...We have

formalized these protections in the requirements of

confrontation and cross-examination. They have an-

cient roots. They find expression in the Sixth Amend-

ment... This court has been zealous to protect these

rights from erosion. It has spoken out not only in

criminal cases... but also in all types of cases where

administrative... actions were under scrutiny.

But the Petitioner has not considered these questions in

his brief. Rather, he attacks the decision of the court below

on the narrow argument that uncorroborated hearsay is

within the ambit of “substantial evidence.” Therefore it

would be fitting at this point to consider the nature of hear-

say and examine the reasons for its traditional exclusion.

por I

The decision of the Court below is entirely in keeping

with the fundamental principles applicable to all determina-

_—

|

tions by men which have evolved from centuries of experi-

ence, and to reverse this decision on the grounds urged by

petitioner would be an unwarranted and unprecedented

departure from well established concepts.

Ine Hearsay Rule is a concept of the law of evidence

which has been matured by the wisdom of ages, and revered

from its antiquity and the good sense in which it was

founded.

The Hearsay Rule is regarded by a leading commentator

to be analytic in nature, establishing the basis for attacking

hearsay evidence through means calculated to demonstrate

the weakness of this evidence, and thereby affording a

tribunal a standard for measuring its true value. There

appears to be no universal definition of the term “hearsay

evidence” susceptible to a concrete application in all in-

stances. Any definition of this term merely serves as 4

signpost along the path of analysis of the suspect evidence.

Another authority carefully proposes the following defini-

tion of hearsay evidence:

Hearsay evidence is testimony in court or written evi-

dence, of a statement made out of court, such state-

ment being offered as an assertion to show the truth of

matters asserted therein, and thus resting for its value

upon the credibility of the out-of-court asserter.*

To understand the importance of the hearsay rule in

the American system of jurisprudence, it becomes necessary

to refresh the memory by a brief review of its historical

development, and its impact upon the law of evidence as

it is understood and applied in contemporary judicial pro-

ceedings.

25 Wigmore, Evidence, §1360

3. McCormick, Handbook of the Law of Evidence, 5225, p. 460

7

The innovation of the hearsay rule concept, as under-

stood and applied today, is said to have been conceived in

the early part of the Eighteenth Century.* Prior to this

time, the hearsay rule may be characterized as having

undergone a period of gestation.

Trial procedure, circa fifteen hundreds, did not demand

that a witness be called before a jury to testify to his

knowledge. Contrary to modern procedure, the accepted

practice allowed jury members to obtain information, upon

their own volition, from persons not called into court.“

During this period, however, doubt began to permeate as

to the trustworthiness of extra-judicial assertions alone,

or in corroboration of other in- court testimony.’ As aptly

described :

8

There had hitherto been no prejudice against the jury’s

utilizing information from persons not produced. But

now that their verdict depended so much on what was

laid before them at the trial, and now that the suffi-

ciency of this evidence, in quantity and quality began

to be canvassed, it came to be asked whether a hearsay

thus laid before them would suffice.’ (author's empha-

sis)

It was not, however, until the post-Restoration period that

this adverse feeling to extra-judicial assertions began to

be applied positively and consistently in judicial proceed-

45 Wigmore, Evidence, §1364, p. 10

5 Ibid. at page 11

6 Ibid. at page 14; Wignore attributes this to : (1) a natural inquiry

by jurors who were becoming dependent on in-court evidence; (2)

an emerging concern with the quality and sufficiency of a witness’

testimony.

7 Ibid. at page 13

8 Ibid, at page 16

*

ings. Sometime between 1675 and 1690 the hearsay rule

was crystallized into a modified form.“ Hearsay evidence

was yet admitted for the limited purpose of confirmation

or corroboration of other testimony, but it was generally

regarded as insufficient as a sole foundation for a conclu-

sion and was therefore excluded.” By the mid-seventeen

hundreds the hearsay rule had become firmly established

and “henceforth the only question can be how far there

are to be specific objections to it.

Hearsay statements made under oath followed a similar

path of development as that of the hearsay rule. By the

mid-sixteen hundreds extra- judicial statements made under

oath were excluded where the deponent could appear per-

sonally in court. i By 1696 the concept that a deponent must

be subjected to cross-examination was considered settled

law. 8

It may therefore be asserted that the rational of the

hearsay rule, evolving from this English development, —

predicated upon a concept that precludes the use of testi-

monial assertions, offered to prove the truth of the matter

therein, which afford no opportunity of analysis vis a vis

cross-examination and confrontation.

In the United States the hearsay rule was given firm

footing by the United States Supreme Court in the decision

of Mima Queen v. Hepburn, 7 Cranch 295 (1818). The prin-

cipal issue centered upon the use of hearsay evidence to

establish the fact of petitioner’s freedom. Chief Justice

® McCormick, Handbook of the Law of Evidence, §223, p. 456.

et. 5 Wigmore, Evidence, 51364, p. 16.

10 [bid.

u Op. Cit. 5 Wigmore, Evidence, §1364, p. 18.

12 Ibid. at page 21

13 Ibid. at pages 24-25

N

Marshall, reasoning for the Court, established the follow.

ing rule:

*

Thlearsay evidence is incompetent to establish any

specific fact, which fact is in its nature susceptible of

being proved by witnesses who speak from their own

knowledge. Mima Queen v. Hepburn, supra. at 295.

The rationale emanating from the reasoning of the Chief

Justice is clearly indicative that the rule as established was

not to be circumscribed in its application. Mima Queen v.

Hepburn, supra. at 295. The Chief Justice also espoused

words of warning to those who would create exceptions to

the hearsay rule:

{i]f other cases standing on similar principals should

arise, it may well be doubted whether justice and gen-

eral policy of law would warrant the creation of new

exceptions. The danger of admitting hearsay evidence

is sufficient to admonish courts of justice against

lightly yielding to the introduction of fresh exceptions

to an old and well-established rule: the value of which

is felt and acknowledged by all. Mima Queen v. Hep-

burn, supra. at 296; See also Ellicott & Meredith v.

Pearl, 10 Peters 412 (1836).

With the advent of the administrative agency the appli-

cation of the hearsay rule in relation thereto has assumed

hybrid characteristics. Generally speaking the rules of evi-

dence as applied in civil and criminal proceedings (and

therefore the hearsay rule) are not equally applicable to

administrative determinations. Federal Trade Comm. v.

Cement Institute, 333 U.S. 683, 705, 706, (1948) ; Opp Cot-

ton Mills v. Administrator, 312 U.S. 126, 155 (1941);

Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229,

230 (1938) ; Falsone v. U.S., 205 F.2d 734 (5th Cir. 1953)

cert den. 346 U.S. 864 (1953) ; 42 Am. Jur. 2d, Administra-

tive Law, Sec. 382, p. 188. It may also be generally stated

—

that hearsay evidence is admissible in administrative pro-

ceedings. Carter- Wallace, Inc. v. Gardner, 417 F.2d 1086

(Ath Cir. 1969) ; Giaros v. Immigration and Naturalization

Service, 416 F.2d 441 (5th Cir. 1969) ; Willapoint Oysters,

Inc. v. Ewing, 174 F.2d 676 (9th Cir. 1949). This is true

when no objection to its admission has been asserted, there-

by allowing hearsay evidence to enter into the record as

evidence of probative value, U.S. v. Shaughnessy, 116 F.

Supp. 745 (D.C. S.D.N.Y. 1953) ; Opp Cotton Mills v. Ad-

ministrator, supra., or when the hearsay testimony is corro-

porated by other sufficient evidence, Glaros v. Immigration

and Naturalization Service, supra. These hybrid precepts

were not accomplished through the process of judicial devel-

opment, but were mainly the products of congressional legis-

lation. For example, the Administrative Procedure Act, 5

USCA 2556 (d), and the Social Security Act, 42 USCA

§4056, allow the admission of hearsay evidence over objec-

tion on the condition that such hearsay evidence be of pro-

bative value. Willapoint Oysters, Inc. v. Ewing, supra. What

has been accomplished has been the substitution of the con-

cept of probative value for the established safeguard of

judicial admissibility. The primary reason for this seem-

ingly backward step has been the avowed need for adminis-

trative expediency. However, even under the Administra-

tive Procedure Act and the Social Security Act, all cau-

tion has not been cast to the wind. As was stated in the

decision of American University v. Prentiss, 113 F.Supp.

389 (D.C. D.C. 1953), aff'd 214 F.2d 282, cert. den., Wrather

v. American University, 348 U.S. 898 (1954) :

It is well established that administrative agencies

are not required to apply the rules of law governing

admissibility of evidence, these rules are binding only

on judicial tribunals. Nevertheless, the probative

weight of evidence is the same, irrespective of where

*

the evidence is introduced, and must be tested by the

same standards whether it is tendered to a court or to

an administrative body. American University v. Pren.

tiss, supra. at 393.

Mr. Justice Douglas, speaking for the majority, in the case

of Bridges v. Wizon, 326 U.S. 185 (1945), stated:

It is true that the courts have been liberal in relax-

ing the ordinary rules of evidence in administrative

hearings. Yet as was aptly stated in Interstate Com-

merce Commission v. Louisville & N.R. Co., 227 US.

88, 98, 88 S.Ct. 185, 187, 57 L.Ed. 431, “But the more

liberal the practice in admitting testimony, the more

imperative the obligation to preserve the essential rules

of evidence by which rights are asserted, or defended.”

Bridges v. Wixon, supra. at 154.

A similar concern with preserving essential rules of evi-

dence in administrative proceedings was evident in the fol-

lowing language of the decision in Dodsworth v. Celebrezze,

349 F.2d 312 (5th Cir. 1965) :

As the fact findings of the adminstrator carry such

awesome weight, it is essential that the proper legal

standards be employed in the appraisal of the evidence.

Dodsworth v. Celebrezze, supra. at 315.

The “awesome weight” to which the court referred has

its expression in the “substantial evidence” rule. Under this

concept the court is not allowed to substitute its judgment

for that of the administrative agency, but only ascertain

whether the decision was based on “substantial evidence.”

The difficulty of this task was expressed by the Senior Cir-

cuit Judge of the Sixth Circuit in the case of Miracle v.

Celebrezze, 351 F. ad 361, (6th Cir. 1965) :

The review of cases for disability bemefits under the

Social Security Act is onerous from many aspects. The

1

=| =

case before the hearing examiner is heard informally.

This means that there is practically no examination

or cross-examination of any witnesses, except the

claimant himself, usually a man whose life has been

one of hard labor, and with little education; and, some-

times, a Vocational Counselor. The record, for the most

part, consists of letters and written statements regard-

ing the disability claimed, the extent of it, or the lack

of it. Many of these statements consist of official

printed forms of applications and reports filled in, in

the handwriting of various individuals; and their re-

production in the record often requires laborious

decipherment. Miracle v. Cblebrezze, supra. at 882.

In the instant case, the court below was called upon to

make the determination mentioned above. The court’s de-

cision was that uncorroborated hearsay in the circumstances

of the present case was not “substantial evidence.” This

holding is certainly in accord with the authorities previous-

ly discussed. The abandonment of the lessons learned from

centuries of experience does not commend itself to thinking

men as indeed it did not commend itself to the court. Under

the guise of the “substantial evidence” rule petitioner would

have this Court abandon the traditional concepts of the law

of evidence.

Amicus Curiae for the Respondent has found no case in

which a court has held that uncorroborated hearsay, ad-

mitted over timely objection and controverted by direct,

competent evidence was “substantial evidence” sufficient to

support an administrative determination of an individual’s

rights. Nor has the petitioner cited any case in support of

their contention that this has been done. Thus the authori-

ties previously discussed would seem to require affirmance

of the decision below rather than a decision which would

elevate hearsay to a level equal or greater than that of

direct, competent testimony.

*

Prior authorities notwithstanding, the petitioner has

urged this Court to reverse the decision of the Court below

on the ground that the hearsay in question is of such high

probative value as would constitute “substantial evidence.”

Thus, it is necessary to inquire into the nature of “substan-

tial evidence.”

POINT III

Uncorroborated, ex-parte statements introduced over

proper and timely objection in an administrative hearing

leading to the adjudication of substantial rights under the

social security disability law cannot, by themselves, amount

to substantial evidence sufficient to support a determination,

when such uncorroborated, ex-parte statements have been

contradicted by direct, competent testimony presented at

such administrative hearing. N

This court has defined “substantial evidence” in the fol-

lowing terms:

(Substantial evidence) ...means evidence which is

substantial, that is, affording a substantial basis of

fact from which the fact in issue can be reasonably

inferred... .. Substantial evidence is more than a sein-

tilla, and must do more than create a suspicion of the

existence of the fact to be established. “It means such

relevant evidence as a reasonable mind might accept

as adequate to support a conclusion,” . . . 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. National

Labor Relations Board v. Columbian E. & S. Co., 306

U.S. 292, 300 (1939).

See also Washington, Virgtnia & Maryland Coach Co. v.

N.L.R.B., 301 U.S. 142 (1937) ; Consolidated Edison Co. v.

—_—

*

N. L. R. B., supra; Baltimore & Ohio R. R. Co. v. Groeger, 266

U.S. 521 (1925) ; Gunning v. Cooley, 281 U.S. 90 (1930).

This definition of “substantial evidence” has been widely

accepted and is generally applied when determinations of

the Social Security Administration are reviewed by the

courts. See eg. Miracle v. Celebrezze, supra; Combs v. Gard-

ner, 382 F.2d 949, 956 (6th Cir. 1967) ; Marion v. Gardner

359 F.2d 175, 180 (8th Cir. 1966) ; Hayes v. Gardner, 376

F.2d 517, 520 (4th Cir. 1967 ); Bridges v. Gardner, 368 F.2d

86, 90 (5th Cir. 1966).

The question now presented for inquiry is whether un-

corroborated, hearsay evidence, without more, can be con-

sidered “substantial evidence” and if so, when? As Amicus

Curiae on behalf of Respondent has shown from the evolv-

ing development of the law of evidence, hearsay has tradi-

tionally been considered “... incompetent to establish any

specific fact which fact is in its nature susceptible of being

proved by witnesses who speak from their own knowledge.”

Mima Queen v. Hepburn, supra, at 295. Certainly, even

though hearsay has its proper place in an administrative

setting, along traditional lines it should be regarded as

“suspect” and of “less probative weight” where direct evi-

dence is available. Petitioner seems to imply that Respon-

dent’s position is one of advocating a total exclusion of all

hearsay. This Amicus Curiae believes nothing could be fur-

ther from the truth. Respondent’s position rather, appears

to be that hearsay evidence is admissible and can be con-

sidered by the agency, but in the instance where such hear-

say evidence is objected to and contradicted by direct, com-

petent testimony, then, if the hearsay remains uncorrobor-

ated, it cannot be “substantial evidence.” Petitioner’s impli-

cation is to place uncorroborated, hearsay evidence on an

equal footing with direct, competent testimony. The prac-

=

tical effect of such a contention is to do away with centuries

of judicial development, and to emasculate the claimant’s

traditional protection against arbitrariness by giving the

government carte blanch indiscriminate power.

Petitioner would have this Court believe that such a

novel departure from tradition is warranted because

the probative value and reliability of both hearsay and non-

hearsay evidence varies widely.“ !“ What Petitioner fails to

appreciate is the elementary principle that the distinguish-

ing factor between hearsay and non-hearsay evidence is the

fact that the latter can be subjected to the fundamental

safeguard of cross-examination thereby affording a basis

of analysis leading to the discovery of truth whereas the

former cannot. It is the contention of Petitioner that “the

inherent reliability and probative valve of written medical

reports brings them squarely within the standards of sub-

stantiality articulated by this Court.“ 1s This Amicus Curiae

believes that both experience and tradition show this state-

ment to be naive and unorthodox. As Judge McAllister,

citing Scott v. Celebrezze, 241 F. Supp. 733, 736 (D.C.

S.D.N.Y. 1965), points out with regard to the deficiency of

blindly relying on such reports:

... that in cases reported in volumes 227-236 of the

Federal Supplement the Secretary’s decision was up-

held only 27 times, but reversed or remanded 47 times,

and in this court, during the past five years, the Secre-

tary’s decision was upheld 5 times and reversed 12

times, which again shows how careful and searching

must be the review. Miracle v. Celebrezze, supra at 383.

7

14 Petitioner’s brief at page 11.

15 Ibid. at page 12.

|

2

Moreover, Petitioner’s evaluation of the inherent re-

liability” of the agency’s medical reports is based upon the

assumption that “the reports are prepared by independent

consultants who have no motive to be anything but im-

partial.“ As is aptly pointed out by Robert M. Viles in

The Social Security Administration Versus the Lawyers...

and Poor People too:

on the one hand, the state agency’s examining physi-

cians are encouraged or permitted to issue full detailed

reports of the medical condition of the examinee,

‘whom, however, they may only observe and test once.

This constitutes a substantial limitation on obtaining

an accurate evaluation, especially for certain u

and diseases. Notwithstanding their competence “7

experience for assessing the medical basis for disabil'ty

and the independence of their professional status, it

can be presumed that the same kind of relationship

may occasionally exist between themselves and the

contracting agency that is found in other, similar

human relationships, i. e., some disposition to respond

to the preferences of the employer.'®

The courts have also recognized the intrinsic weakness of

unsworn, uncorroborated, hearsay medical reports. In the

case of Colwell v. Gardner, 386 F.2d 56 (6th Cir. 1967),

the hearing examiner, disregarding the direct, competent

testimony of two doctors who had treated the claimant, and

relying solely on the uncorroborated, medical reports of the

agency’s examining doctor, denied claimant his disability

benefits. With respect to the credibility of the hearsay medi-

cal reports, the court said:

10 [bid.

n The Social Security Administration Versus the Lawyers...and

Poor People Too, 39 Miss. L. J. 371 (Part I) and 40 Miss. L. J. 24

(Part II): Mr. Viles has written a detailed treatise on Social Secur-

ity Administration and its contemporary application.

—

—2?—

The Hearing Examiner, if he considered any medi-

cal evidence as bearing upon disability, which is doubt-

ful — apparently relied upon the evidence of Dr. W. K.

Massie, an orthopedic surgeon. Dr. Massie was em-

ployed by the Social Security Administration, and was

solicited by it to give his views as to appellant’s dis-

ability. The foregoing is no reflection upon Dr. Massie

but, .. together with other factors, goes to the weight

to be given his statement, under the circumstances of

this case. Colwell v. Gardner, supra at 64.

As has been previously pointed out the awesome weight of

the hearing examiner’s decision demands that his appraisal

of the evidence be governed by the proper legal standards,

Dodsworth v. Celebrezze, supra.

Amicus Curiae on behalf of Respondent contends that

the inherent unreliability of uncorroborated, hearsay evi-

dence is precisely why it and it alone can not attain the

“standards of substantiality” referred to by Petitioner on

page 12 of his brief. This Amicus Curiae supports the well

established principle that uncorroborated, hearsay evidence,

without more, can not be “substantial evidence.” Consoli-

dated Edison Co. v. N.L.R.B., supra; Aaron v. Fleming, 168

F. Supp. 291 (D.C. Ala. 1959) ; Mullen v. Gardner, 256 F.

Supp. 588 (D.C. E.D.N.Y. 1966) ; Willapoint Oysters v. Ew-

ing, supra; Bridges v. Wixon, supra; U.S. ex rel. Don Wing

Ott v. Shaughnessy, supra; N.L.R.B. v. Amalgamated Meat

Cutters, 202 F. 2d 671 (th Cir. 1953); United States v.

Krumsiek, 111 F. 2d 74 (1st Cir. 1940). It is ironic that in

this case Petitioner argues for the substantiality of uncor-

roborated, hearsay evidence. He would have this Court

formulate a novel rule which places uncorroborated, hear-

say on par with direct, competent testimony which very

18 Ibid. 40 Miss. L. J. 24, 31-32.

— =

well might destroy claimant’s safeguard of cross-examina-

tion. However in the case of Druminski v. Ribicoff, 194 F.

Supp. 798 (D.C. Alaska 1961), where the shoe was on the

other foot, and it was claimant who had the hearsay medi-

cal statements on his side, the government exercised their

right to cross-examine claimant’s doctor. This case is illus-

trative of the fact that the government also follows the rule

of direct testimony over hearsay when it is to their advant-

age. This case also points out the inherent shortcomings

of written reports and how direct confrontation through

cross-examination is much more apt to discover truth. If

this is true for the government why not for claimant as

well?

Amicus Curiae on behalf Respondent heartedly agrees

with the court below in that uncorroborated, hearsay evi-

dence, without more, cannot be “substantial evidence” and

must yield to the more credible direct, competent testimony.

Anything contrary would cast out centuries of judicial wis-

dom and propriety and would be a serious affront to the

rights and safeguards of great numbers of individuals who

are affected by administrative agencies.

Petitioner, in his brief on page 36, concedes that if

uncorroborated hearsay, timely objected to and contradicted

by direct, expert testimony cannot be “substantial evidence,”

then “... (they) might agree... that the medical advisor’s

testimony, which is based on the medical evidence in the

case, could not furnish such corroboration.” (emphasis

added) This concession is well taken. As the court below

reasoned :

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

20

is no more competent than single hearsay. Cohen v.

Perales, 412 Fd 44, 53 (5th Cir. 1969).

This treatment of the nature and weight of the testimony

of Social Security’s “circuit riding” non-examining “ex.

perts” is certainly not novel. Rather the courts generally

recognize this principle as illustrated by the Court of

Appeals, Fourth Circuit:

We reach the conclusion that, in view of the opinion

evidence as to the existence of a disability, combined

with the overwhelming medical facts, the uncontra-

dicted subjective evidence, and claimant’s vocational

background, the opinion of a doctor who never exam-

ined or treated the claimant cannot serve as substan-

tial evidence to support the Secretary’s findings. Hayes

v. Gardner, supra, at 520-21.

In the case of Mefford v. Gardner, 383 F. 2d 748 (6th

Cir. 1967), the court had another occasion to review a

determination of the Secretary based on the opinion of a

non-examining medical expert. The court said:

But the remarkable value attached to Dr. London's

statement by the Hearing Examiner is the surprising

fact that, although the Hearing Examiner relied large-

ly upon this statement, it appears that Dr. London had

never examined, or had even seen, the appellee at any

time. What could be the explanation for any weight

given to such evidence? The opinion of the Hearing

Examiner supplies the answer. He states:

... “Nevertheless, the Examiner believes that the opin-

ions of medical authorities, though they have not exam-

ined an individual, are exceedingly helpful, particu-

larly where there is apparent confiict in the medical

evidence.”

Such a statement cannot be considered substantial

evidence in view of the fact that he never saw or exam-

—

ined appellee, and in face of the medical evidence of

physicians who not only treated him over a long period

of time but also examined him and came to the deter-

mination that he was totally and permanently disabled.

(emphasis by the court) 383 F.2d 748, 759.

on the basis of the foregoing authorities it may truly be

said that such testimony by non-examining physicians con-

stitutes pyramiding “hearsay on hearsay.”

Nor is there substance to the Petitioner’s contention

that the court below applied the so-called “residuum rule”

in reaching its decision, and in so doing, erred. Their argu-

ment, asserts that the residuum rule prevents the agency

from giving “legally incompetent” evidence its “natural

probative effect.” (Brief of the Petitioner, page 30). The

strongest reason against such a rule, petitioner argues, is

the lack of correlation between reliability of evidence and

the exclusionary rules of evidence. Undoubtedly there is

gome truth to this statement, as a general proposition. How-

ever, as has been previously discussed, hearsay has been

traditionally excluded for the very reason that it lacks

reliability. How can it be said, then, that there is no corre-

lation between the reliability of hearsay and the rules which

exclude it? Indeed, recogniziing the correlation between ex-

clusion and reliability, the courts have formulated numerous

exceptions to the hearsay rule to allow it in those circum-

stances when it is likely to be reliable and when better evi-

dence is not readily available.

Further, the very authorities which Petitioner quotes

in support of his argument are themselves zealous advocates

of the right of confrontation and cross-examination as tools

of seeking truth.

But regardless of the merits of the residuum rule, a

_correct analysis of the opinion of the court below reveals

=

that the rule was not applied by that court. A careful read.

ing of the court’s second opinion shows that their decision

did not rest on the fact that no residuum of legally com.

petent evidence was found in support of the agency’s deter.

mination. The court held only that the agency’s decision

was not supported by substantial evidence when hearsay

was not supported by competent evidence, was considered

over timely objection, and was controverted by direct, com-

petent testimony. The petitioner has interpreted the court’s

decision as a “blanket rejection” of administrative reliance

on anything that can technically be deemed “uncorroborated

hearsay.” (Brief for the Petitioner, p. 29). The Court's

opinion, especially the second opinion, simply does not hold

this. Indeed, the Petitioner has cited numerous cases in

which the courts have upheld determinations of the Secre-

tary in which the only supporting evidence was written

reports. (Brief for the Petitioner, p. 24). Likewise, the

court below held only that uncorroborated hearsay was not

substantial evidence in the limited circumstances outlined

‘above. Further, even in these limited circumstances, the

Secretary is not bound to rely on the claimant’s legal evi-

dence. If he is dissatisfied with such evidence, he is free to

subpoena the government’s reporting physicians and fur-

ther develop the evidence in the case. This does not seem

at all unreasonable, for surely our concept of due process

entitles the claimant to at least this much. The inherent

fairness of the decision under review is thus clearly seen

—and the Secretary’s only real complaint is that he has

been burdened and inconvenienced. This Amicus Curiae

believes that the Secretary’s additional inconvenience of

seeking corroboration of written medical reports, by the

live testimony of reporting doctors in the few instances

where this will be necessary will not “disrupt the adminis-

tration of the program.” Such a minor inconvenience is

*

put a small price to pay for the preservation of the cher-

ished safeguards of confrontation and eross- examination.

CONCLUSION

The decision of the United States Court of Appeals,

Fifth Circuit, holding that mere uncorroborated hearsay

evidence, standing alone and without more, is not substan-

tial evidence that will support a decision of the examiner

adverse to the claimant, if the claimant objects to the hear-

say evidence and if the hearsay evidence is directly con-

tradicted by the testimony of live medical witnesses, should

be affirmed.

Respectfully submitted,

FRANK P. CHRISTIAN

HARRY B. ADAMS, III

FRED J. DEYESO

MELVIN N. EICHELBAUM

203 West Nueva Street

San Antonio, Texas 78207

Attorneys for the Bexar

County Legal Aid Association

=

APPENDIX

Petitioner’s written consent for the Bexar County Legal

Aid Association’s filing of an Amicus Curiae brief on behalf

of respondent.

Office of the Solicitor General

Washington, D. C. 20530

July 14, 1970

AIR MAIL

Frank P. Christian, Esq.

Bexar County Legal Aid Association

203 West Neuva Street

San Antonio, Texas 78207

Re: Finch v. Perales, No. 108,

October Term, 1970

(No. 1802, October Term, 1969)

Dear Mr. Christian,

On behalf of the petitioner in this case, I consent to the

filing of a brief amicus curiae by the Bexar County Legal

Aid Association.

Very truly yours,

Erwin N. Griswold

Solicitor General

—29—

Respondent’s written consent for the Bexar County Legal

Aid Association’s filing of an amicus curiae brief on behalf

of respondent

Law Offices of

TINSMAN & CUNNINGHAM INC.

1907 National Bank of Commerce Building

San Antonio, Texas 78205

Area Code 512 225-3125

Richard Tinsman

James D. Cunningham

Michael B. Hunter

Robert D. Sohn

John F. Younger, Jr.

July 8, 1970

Mr. Frank P. Christian

Attorney at Law

Bexar County Legal Aid Association

208 West Nueva Street

San Antonio, Texas 78207

Re: No. 1302 in the Supreme Court of

the United States

Secretary of Health, Education and Welfare

v.

Pedro Perales

Our File No. 367-A

Dear Mr. Christian:

1 have received your letter of July 7, 1970, requesting per-

mission for Bexar County Legal Aid Association to file a

2

brief as amicus curiae in the above matter.

As counsel of record for Pedro Perales you have my written

consent evidenced by this letter to file your amicus curige

brief.

Very truly yours,

TINSMAN & CUNNINGHAM, INC.

Richard Tinsman

RT :af