# Amicus Curiae Brief — Richardson v. Perales > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0280%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1971 - **Citation:** 402 U.S. 389 ## Text STATEMENT OF INTEREST ....................05. SUMMARY OF ARGUMENT ...............-..--05- ARGUMENT: I. Written medical reports cannot, in the context of a disability determination, be said to be so reliable and probative as to constitute substantial evidence | without requested cross-examination ............. A. Written medical reports reflecting “objective” testing procedures are not by themselves relia- PT Eee ey Ce Ore Tree 1. The results of objective tests are necessarily subject to various interpretations, both as to their meaning and as to the significance of their meaning in terms of the physical or mental impairment the disability benefit claimant contends precludes him from em- EE 55 Sid hao ee ee alee es oe 8b os 2. The reasons for the limited reliability of the particular testing procedures and the rela- tionship of those reasons to the circum- stances of the claimant must be established . . . . 3. No matter how significant and reliable ob- jective findings may be, the findings are only part of the entire process of medical reason- ing, and objective findings must be inter- preted in light of the entire reasoning process . . B. Medical reports prepared for disability evalua- tion purposes, rather than for treatment, require close scrutiny because they may be based up- on subjective judgments outside the expertise of the physician preparing the reports ........ Il. The Government seeks in this case to establish an “objective evidence” standard that is statutorily un- authorized, impractical and harsh ............... 10 (ii) A. The Government seeks to establish a standard OF GRCNS CUGIRD 6 occ ic coassnveeves 13 B. The Social Security Act prescribes a functional test, considering all the evidence, for disability Co ee ie ee ee ee ey 17 C. Considerations of logic and fairness weigh against an “objective evidence” standard........ 21 EE ccna ta wh diene the 6 bees hhas bee ake 25 CITATIONS Cases: : Ber. v. Celebrezze, 332 F.2d 293 (2nd Cir. 1964).......... 2 Celebrezze v. Walter, 346 F.2d 156 (Sth Cir. 1965) ........ 4,20 Combs v. Gardner, 382 F.2d 949 (6th Cir. 1967) ......... 4, 20 Dillon v. Celebrezze, 345 F.2d 753 (4th Cir. 1965) ........ 20 Flake v. Gardner, 399 F.2d 532 (9th Cir. 1968) .......... 19, 20 Hayes v. Gardner, 376 F.2d 517 (4th Cir. 1967) .......... 4, 20 Heslep v. Celebrezze, 356 F.2d 891 (4th Cir. 1966) ........ 4, 20 Lackey v. Celebrezze, 349 F.2d 76 (4th Cir. 1965) ........ 20 Marion v. Gardner, 359 F.2d 175 (8th Cir. 1966) ......... 20 Mark v. Celebrezze, 348 F.2d 289 (9th Cir. 1965) ......... 19, 20 Page v. Celebrezze, 311 F.2d 757 (Sth Cir. 1963) ......... 20 Ryan v, Secretary, 393 F.2d 340 (9th Cir. 1968).......... 19 Santagate v. Gardner, 293 F.Supp. 1284 (D.Mass. 1968)... .. 20 Skeens v. Gardner, C.C.H. Unempl. Ins. Rep., para. 14,782 CE divers ee eteveee haves knees 20 Stokes v. Finch, C.C.H. Unempl. Ins. Rep., para. 15,671 ns a SU cbch kee bed arene ves ones 20 (iii) Page Underwood v. Ribicoff, 298 F.2d 850 (4th Cir. 1962) ...+-- 20 whitt v. Gardner, 389 F.2d 906 (6th Cir. 1968) ...------- 19 Statutes: Social Security Act, as amended, 42 U.S.C. 401 et seq.: BUC. COG). 6. ooo rccr nc cvesnrercrrnsens 18 MEE ANE cot ence ec es csededeonersen ruses» 14 42 USC. 423 (d) .--- eee eee rrr eett 2, 3, 18, 19, 20 Regulations: Code of Federal Regulations: 90 CF.R. 404.1502 ...--- eee eererrereerr streets 16, 17 90 CBR 404.1523 ..------eeerrrerrrrrrrrere® 17 Medical Literature: Conn, Rex B., “Interpretation of Laboratory Values,” in 2 Current Diagnosis 3 (H. Conn and R. Conn, eds.) SD ch ov chic ena HORN ers Sore AR ETERS © o> 6, 10 Crue, Pudenz and Shelden, “Observation on the Value of Clinical Electromyography,” 39-A Journal of Bone and Joint Surgery 492 (No. 3, June IOST) on cccccvccceses 6,9 Frankel, “Low Back Injuries—The Ruptured Disc Syndrome,” 11 South Carolina Law Review 171 (1958)... 10 Gelfand, Magna and Merliss, The Low Back § 24.00 (1970)... 5 Goodgold, 51-A Journal of Bone and Joint Surgery 1451 (No. 7, October 1969) (letter to Sy ee 8 Haas, “Relationship of Trauma to Injury and Disease: The Pathologist’s Approach,” 31 Texas Law Review 747 OER, isso buncats Ce wusesewesentenerssess o> 10 Kambin, Smith and Hoerner, “Myelography and Myo- graphy in Diagnosis of Herniated Intervetebral Disc,” 181 Journal of American Medical Association 472 (No. 6, August 11, 1962)....----+- eee e rer rreeee 6, 8,9 MacCarthy and Lane, “Pitfalls in Myelography,” 65 Radi- ology 663 (November 1955) ....-----++e reece rrrrre 8 Mayo Clinic, Clinical Examinations in Neurology, Ch. 17 SS *) ee 8 (iv) Mendelsohn and Sola, “Electromyography in Herniated Lumbar Discs,” 79 A.M.A. Archives of Neurology and Psychiatry 142 (February 1958). ...........-.00005. 8 Walter, “Electroencephalography and Electromyography,” PF fy. Se |. PPrerererrerrreerre 6,9, 11 Wiltberger, “The Medico-Legal Aspect of Low Back Pain,” 15 Ohio State Law Journal 437 (1954) .......20e020005. ll Miscellaneous: Brehm, “The Disabled on Public Assistance,” U.S. Depart- ment of Health, Education and Welfare, Table 4 (June ee PP py en enero ene eae yy OMe meee o2 Rock, “An Evaluation of the S.S.A. Appeals Process,” U.S. Department of Health, Education and Welfare, ee 2B Social Security Administration, U.S. Department of Health, Education and Welfare, “Social Security Disability Applicant Statistics 1966,” Pub. 70-11 (2-7), Tables 2, 14 (November 1969). ............... 22 ——— | Supreme Court of the United States OCTOBER TERM, 1970 No. 108 ELLIOT L. RICHARDSON, Secretary of Health, Education and Welfare, y, Petitioner, PEDRO PERALES Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF OF AMICI CURIAE ON BEHALF OF RESPONDENT STATEMENT OF INTEREST Appalachian Research & Defense Fund, Legal Research for Appalachian Elderly, and the Center on Social Welfare Policy and Law have obtained the written consent of both Petitioner and Respondent to file an amici curiae brief as required by Supreme Court Rule 42(2), such written consents having been duly filed with the Clerk of Court. Legal Research For Appalachian Elderly and the Legal Services for the Elderly Poor Project of the Center on So- cial Welfare Policy and Law are legal services programs funded by the Office of Economic Opportunity and spon- sored by the National Council of Senior Citizens. The pur- pose of these programs is to develop and advance ways for our legal system to respond to the needs of the low in- come elderly. Appalachian Research & Defense Fund is also a legal services program funded by the Office of Eco- nomic Opportunity. 2 Appalachian Research & Defense Fund and Legal Re. search For Appalachian Elderly are located in the coal min. ing regions of eastern Kentucky and southern West Virginia and represent persons who have become disabled as the re. sult of industrial accidents and disease. Both projects are especially concerned with the stringent medical evidence re. quirements imposed in the administration of the Disability Insurance Benefits program. The Center on Social Welfare Policy and Law is a specialized law reform unit of the Legal Services program of the Office of Economic Opportunity. Affiliated with the Columbia University School of Law, the Center’s Legal Services for the Elderly Poor undertakes re- search pertaining to the legal rights of the elderly poor. Because of the impact on the elderly poor of the Disability Insurance Benefits program, the Elderly program has a vital interest in presenting to this court the full range of issues raised by this case. SUMMARY OF ARGUMENT Numerous persons in Appalachia and other regions who can no longer work are denied Disability Insurance Bene- fits for failure to satisfy the burden of proving they are “totally disabled” due to any ‘‘medically determinable phy- sical or mental impairment.”” 42 U.S.C. 423(d)(1). In the instant case Pedro Perales was denied disability benefits because, among other things, there was “no objec- tive neurological evidence” that he was suffering from a herniated disc, diagnosed by his family doctor, which caused the pain and limitation of motion he claimed was keeping him from resuming his employment. Accordingly, whatever impairment he had could not be proved to be of the required severity by “objective” neurological evidence. It is the position of amici that there is adequate evidence to prove that Respondent’s disc problem is “medically de- terminable,” and that “medically determinable” does not mean that disability can only be proven by “objective evi- a dence”; rather, this language requires that there be medical verification of the fact that the claimant is suffering from a condition (or conditions) recognized by the healing art, whether that condition be proven by the most “objective” testing procedure known to medicine or by the most sub- jective but clinically recognized symptoms uttered by the patient. The procedure followed by the Secretary in the regula- tions and in this case is representative of the practice of the Secretary to rely, contrary to 42 U.S.C. § 423(d)(1), al- most exclusively on written medical evidence (especially “objective” reports of laboratory or medical tests or spe- cialists’ examinations) and to give little or no consideration to reports or testimony by the claimant’s own treating doc- tor or to the claimant’s own account of his functional loss. The immediate issue in this case is whether written medi- cal reports are inherently reliable and probative so that they may constitute substantial evidence without requested cross examination. In this case, the “objective” reports of myelographic and electromyographic examinations, which were the basis of the denial of claim for benefits, demand explanation, particularly in light of Respondent’s family doctor’s insistence on the bona fides and objective basis of Respondent’s complaint. Cross-examination of the authors of the objected-to reports is necessary to establish among other things: the manner of interpretation applied by each to the objective test results; the reliability and significance of the test results; and the weight to be given the test re- sults in relation to testimony of the claimant’s treating phy- sician. 3 By urging the inherent reliability and probative value of written “objective” reports, the Government seeks to gain approval of its requirement of “objective” medical evidence for disability determinations. Such a requirement of “‘ob- jective” evidence is improper for three reasons. It is not statutorily authorized. The significance and weight of med- ical reports reflecting objective testing procedure are not 4 constant or apparent on the face of the reports but must be determined in each case. Finally, the “objective evi- dence”’ standard emphasizes the kind of evidence most dif- ficult for the claimant to obtain, analyze and rebut, and thereby imposes an undue burden of proof upon the claim- ant. ARGUMENT I. WRITTEN MEDICAL REPORTS CANNOT, IN THE CONTEXT OF A DISABILITY DETERMINATION, BE SAID TO BE SO RELIABLE AND PROBATIVE AS TO CONSTITUTE SUBSTANTIAL EVIDENCE WITH- OUT REQUESTED CROSS-EXAMINATION. A. Written medical reports reflecting “objective” testing procedures are not by themselves reliable and probative.' The Government contends that written medical reports, especially those containing the results of objective tests, are inherently reliable and probative. The Government argues further that such objective findings, although submitted in written form without the opportunity for cross-examination, are sufficient proof on the ultimate issue of disability. Cross-examination of the specialists in the present case who performed objective tests was needed to establish the limited independent value of such tests, to explore the re- sults of the tests in light of the diagnosis of claimant’s treat- ing physician, and to establish that a treating physician who has had the opportunity to see the patient over a long pe- riod of time is in a superior position to make judgments re- garding the patient’s condition.” 1The valuable assistance of John Betinis, M.D., as medical consul- tant for this portion of the brief is gratefully acknowledged. 2Combs v. Gardner, 382 F.2d 949, 956 (6th Cir. 1967); Helsep v. Celebrezze, 356 F.2d 891, 894 (4th Cir. 1966); Celebrezze v. Wal- ter, 346 F.2d 156 (Sth Cir. 1965); and Hayes v. Gardner, 376 F.2d 517, 521 (4th Cir. 1967). w—“ 5 1. The results of objective tests are necessarily sub- ject to various interpretations, both as to their meaning and as to the significance of their mean- ing in terms of the physical or mental impair- ment the disability benefit claimant contends precludes him from employment. Two objective tests, a myelogram and an electromyo- gram (EMG), were performed on the claimant in the present case. Both tests were authorized by the Administration in an attempt to substantiate Dr. Morales’ general diagnosis of slipped disc and determine objectively the basis for claim- ant’s complaints of pain and limitation of motion. The re- sults of both tests were relied on heavily by the hearing ex- aminer. The results of these laboratory tests, by themselves, are not meaningful in determining “the question of impairment or to the ultimate question of inability to engage in substantial gainful activity. A myelogram reveals only ir- regularities in the shape and symmetry of the space sur- rounding the spinal cord, and the readings of an electro- myelogram merely describe the irregularity or regularity of electrical activity in muscles tested during rest and exer- tion.”? These readings, insofar as they are merely recorded, IThe intervertebral disc itself is soft tissue and accordingly will not show up on an x-ray, so the disc itself cannot be x-rayed. However, any irregularity that the protruding disc may cause in the shape of the fluid sac (subarachnoid space) surrounding the spinal cord or ir- regularities in the slight bulges in the fluid sac caused by the nerves leaving the sac (nerve sleeves) may be visualized on x-ray film if the shape of the sac can be visualized. The fluid sac is also soft tissue which will not show up on x-ray, but, it can be filled with radio opaque fluid injected into the fluid sac and on x-ray the radio opaque fluid will outline the shape of the fluid sac. Gelfand, Magna, Mer- liss, The Low Back, sec. 24.00 (1970). The EMG measures electrical activity produced by individual con- tracting muscle fibers. One motor nerve supplies each motor unit, and each motor unit in turn supplies a number of muscle fibers. Each muscle is controlled by several motor units, with the larger muscles such as were being tested in Mr. Perales being controlled by 6 are “‘objective.”* But once they are necessarily interpreted, the readings lose their “‘objectivity.”* Cross-examination of the doctors who performed the ob- jective tests is necessary, in this case, to establish exactly what the myelogram® and electromyogram readings were and the significance of these findings on the question of several hundred or thousand motor units. The EMG tests the work- ings of individual motor units by taking readings of the electrical ac- tivity of muscles on voluntary contraction by the insertion of an electrode needle into the muscle and a ground to the body. Normal readings of muscle activity will show if the muscle and nerve are working properly. If the muscle is receiving no signals from the nerve (is denervated), the muscle will make twitches (called fibrilla- tions) not visible to the eye upon insertion of 2 needle. Fibrillations will show up on an EMG reading and indicate denervation. The EMG will also detect the electrical activity of visible twitches called fascisculations. Kambin, Smith, and Hoerner, “Myelography and Myo- graphy in Diagnosis of Herniated Intervertebral Disc,” 181 Journal of the American Medical Association 472, 473-75 (No. 6, August 11, 1962). Crue, Prudenz. Shelden. “Observation on the Value of Clin- ical Electromyography,” 39-A Journal of Bone and Joint Surgery 492, 492-94 (No. 3, June 1957). 4All information obtained from the clinical laboratory, as well as from radiographic studies and physical examinations, is of the ob- jective type.” On the other hand, “subjective information is that which can be supplied only by the patient himself, for example the feeling of pain or discomfort.” Rex B. Conn, M.D. “Interpretation of Laboratory Values,” in 2 Current Diagnosis No. 3, edited by H. Conn and R. Conn (Saunders, 1968). 5“The feeling is that these marvelous, complex machines (electro and encephalogram (EEG) and electromyogram (EMG)) in this elec- tronic age, must really produce “objective” data. True, the ma- chines themselves taithfully record squiggles and jogs without error, but objectivity is lost in the process of translation by the interpreter.” Richard D. Walter, M.D., “Electroencephalography and Electromy- ography” 1 Trauma 25, 44 (No. 1, June 1959) ®There are apparently two myelograms in this case. A report of the first myelogram is not contained in the record but there is ref- erence to it in the second myelogram report entitled, “Repeat Mye- logram.” (App. 164) whether or not the Respondent was suffering from a her- niated disc, or pain, or both.’ The results of the repeat myelogram were inconclusive, as contrasted to the hearing examiner’s repeated characteri- zation of the tests as negative. (App. 85, 216-17, 224) Such testimony would have indicated that the repeat my- elogram was without value as to the question of whether or not the claimant was suffering from a slipped disc or other disabling condition.* The significance of the findings themselves, what they mean, may also be unsettled within the medical art. For example, as to the electromyogram, there are differing opinions as to the meaning of particular readings. The “impartial” medical advisor did not point out (App. 220-221) that one type of reading, called a polypha- sic potential, which appears on the oscilloscope of the electro- 7 slipped or herniated disc may cause an indentation in the fluid sac (subarachnoid space) or it may cause a slight irregularity in the shape of the bulge in the fluid sac where each nerve passes through the sac (the nerve root sleeve) and such an indentation or irregularity would be shown by the myelogram. An electromyogram may indi- cate that a claimant has a slipped or herniated disc by showing some alteration in the function of the muscles which are controlled by the nerve cords passing through the portion of the spinal cavity in which the disc is supposed to be protruding. Changes in a nerve leading to a muscle may under many circumstances result in changes in the electrical properties of that muscle. In the case of the electromyogram, the readings reflect only the electric potentials of muscles during exercise, and in a myelogram, the readings reflect only shadows of irregularities in the membrane composing the spine. The limited findings described above must be subjected to many levels of interpretation and usage to achieve any diagnostic purpose. Contrary to the finding of the hearing examiner that the myelo- grams suggest “no impairment . . . [or] only mild involvement,” (App. 224) the findings of the second myelogram are inconclusive. The repeat myelogram indicates that the radio opaque material was in the “subdural space of the lumbar region . . . mass of the opaque media is in the subdural or epidural space.” In other words, the fluid was not restricted to the subarachnoid space and no reading could be taken. The repeat myelogram does not comment on the integrity 8 myogram, is considered by some doctors to be a positive indication of nerve root involvement.? The absence of a fibrillation potential, which was deemed by Dr. Leavitt (App. 220-221) to indicate the lack of compression, while other doctors maintain that the absence of fibrillation po- tentials are not critical to diagnosis of nerve compression, as most compressions do not cause denervation. '° 2. The reasons for the limited reliability of the particular testing procedures and the relation- ship of those reasons to the circumstances of the claimant must be established. The EMG is generally regarded as being about 75-80% re- liable.'! The reliability of the EMG findings is affected in part by several factors which may produce “false-negative readings” (an incorrect finding of the lack of any abnor- or shape of the subarachnoid space because the dye was mistakenly injected in the subdural space. The original myelogram which per- haps showed the surgeon, Dr. Munslow, something to cause him to write a pre-operative diagnosis of “probable protruded interverterable disc” is missing from the record. Subdural injections of the opaque material is one of the more common technical complications of mye- lography. When this occurs it is best to remove as much of the dye as possible, and repeat the myelogram at a later date. Such a result is “non-contributory,” rather than negative. MacCarty and Lane, “Pit- falls in Myelography,” 65 Radiology 663, 666-667 (November 1955). *Mendelsohn and Sola, “Electromyelography in Herniated Lumbar Discs,” 79 A.M.A. Archives of Neurology and Psychiatry 142, 143 (February 1958). ©Goodgold, letter to editor, 51-A Journal of Bone and Joint Sur. gery 1451 (No. 7, October 1969); The lack of fibrillation after the pas- sage of time could be just as consistent with nerve damage as with the lack of nerve damage. Fibrillation potentials may be difficult to detect after one year. Mayo Clinic, Clinical Examinations in Neurology Ch. 17 (2d. ed., 1963) Dy. Leavitt’s testimony, App. 136; Kambin, Jarvis and Hoerner, “Myelography and Myography in Diagnosis of Herniated Intervete- bral Disc,” 181 Journal of American Medical Association, 472, 474 (No. 6, August 11, 1962). ——a mality when an abnormality in fact exists). In the first ce, “a small herniation may compress only the posterior sensory nerve. This patient may have some pain without any electromyographic findings because the motor nerve is not involved.”!? A second important factor affecting the reliability of the EMG is that false negative readings can be caused by the fact that within any given muscle there are several motor units.'3 And it is possible with a less than complete procedure to test a particular muscle and fail to detect one or more denervated motor units within that muscle. '* The attitude of the person being tested can affect EMG readings. “It is. . . necessary to have a co-operative patient as the electrical events during muscle relaxation need to be studied in particular.”'S The fact that Mr. Perales, whose fluency in English was acknowledged as restricted, was dis- trustful of “Anglo” doctors and was uncomfortable in their presence may have contributed to a false EMG reading. (App. 89). The claimant’s discomfort may have been heightened by the painful testing procedures used to ob- tain EMG readings.'© Cross examination is needed to es- tablish the importance of these variables, how they affect 12Kambrin, supra, n. 11, at p. 474. See also Crue, Prudenz, Shel- don, “Observations on the Value of Clinical Electromyography,” 39-A Journal of Bone and Joint Surgery, 492, 494 (No. 3, June 1957). The authors state a large disc protrusion could spare the anterior mo- tor root. The EML only tests the “motor” nerves which control the mus- cles: the EML does not test the “sensory” nerves and pain could be -sused by compression of a sensory nerve. See also, n. 3, supra. “Crue, supra, n. 12, at p. 493. 'SRichard D. Walter, M.D., “Electroencephalography and Electro- myography,” 1 Trauma 25, 41 (No. 1, June 1959). The introduction of the needle to the skin causes the most dis- comfort. At least forty different areas of a muscle must be tested be- fore results may be considered as negative. Crue, supra, n. 12 at p. 493; Kambin, supra, n. 11, at p. 474. . 10 the reliability of the objective test, and their significance to the testing doctor. 3. No matter how significant and reliable objec- tive findings may be, the findings are only part of the entire process of medical reasoning, and objective findings must be interpreted in light of the entire reasoning process. Perhaps the most important function of cross-examina- tion of the doctors who report objective findings would be to explore the relationship of laboratory tests to the over- all process of medical reasoning used to reach a diagnosis. Laboratory results are not the exclusive basis upon which a diagnosis is made but are only a means “to extend the physician’s power of observation to include quantities not visible, palpable or audible.””!” The normal process of diagnosis begins with the physician taking a history of the patient’s medical problems, record- ing the symptoms of his present complaint, and then con- ducting a thorough physical examination. At this point the physician may request laboratory work and perhaps the consultation of specialists. “It is then up to the clinician to evaluate all data and opinions and, together with appro- priate consultants, make a final diagnosis, institute treat- ment, and formulate a tentative prognosis in the light of the diagnosis and probable effectiveness of treatment”.'® This procedure is utilized in the diagnosis and treatment of rup- tured or slipped discs.'® Conn, Rex B., M.D., “Interpretation of Laboratory Values,” in 2 Current Diagnosis 3, Eds. Conn & Conn (Saunders, 1968). '8Haas, M.D., “Relationship of Trauma to Injury and Disease: The Pathologist’s Approach,” 31 Texas Law Review, 747, 758 (1953). '9 Frankel, M.D., LL.B., “Low Back Injuries-The Ruptured Disc Syndrome,” 11 South Carolina Law Review 171, 174-178 (1958). The value of objective tests therefore inheres in their proper integration with the patient’s history and the results of a complete physical examination. See, Mayo Clinic, Clin- ical Examinations in Neurology, Ch. 17 (2nd ed. 1963). The subjective judgments of the examining physicial are crucial, both in interpreting the objective tests and in inte- grating his interpretations with all factors present.?° The reasoning process of physicians is rarely disclosed in the written reports they submit for disability determina- tions. Subjective medical conclusions abound. Yet there is no way, without the benefits of cross examination, that one may reliably determine the role played by each of the various factors disclosed during the examination in the con- clusions, and the reasoning process used to reach these con- clusions. B. Medical Reports Prepared for Disability Evalua- tion Purposes, Rather Than for Treatment, Re- quire Close Scrutiny as They May be Based Upon Subjective Judgments Outside the Expertise of the Physician Preparing the Reports. The reports of consultant physicians also lack reliability and probative value as medical evidence because they are prepared specifically for use in disability determinations. In the case at point, the reports of Drs. Langston, Bailey and Mattson were prepared by them as consultants and Dr. Munslow’s reports were prepared for private insurance pur- poses. 20«“The EEG and EMG examinations are quite similar, in terms of objectivity, to the examination of x-ray films. The importance of the training and experience of the electroencephalographer and elec- tromyographer becomes obvious when complexity of the date is ap- preciated. The greatest danger to the patient in both EEG and EMG are that the results of the examination will not be considered in the light of all other clinical information.” Walter, supra, at n. 15, at p. 44. (Emphasis supplied) See also, Wiltberger, M.D., “The Medico Legal Aspect of Low Back Pain,” 15 Ohio State Law Journal 437, 443 (1954). 12 The reports are therefore not written as objective medical reports, as those used in the normal practice of physicians, but are conceived and written for the purpose of determ- ing disability. As such they are written as substitutes for the testimony which their authors would give before a disa- bility examiner or hearing examiner. As with other testimony a claimant should have the right to cross-examine its creator. The reports may also have been written with a particular legal standard in mind, since the consultants were aware that objective medical evidence dominates disability deter- minations. The written medical reports should also not be admitted at hearings as medical evidence because they are used dur- ing the hearing to prove matters other than the medical elements of disability. Dr. Langston reported that Perales was “obviously holding back and limiting all of his mo- tions, intentionally,” and that there was an “obvious at- tempt of a patient to exaggerate his difficulties by simply just standing there and not moving...” (App. 175 and 177.) The Hearing Examiner used this entirely subjective judgment of Dr. Langston to find that Perales had no med- ically determinable impairment and also to assess the cred- ibility of Perales as a witness. His decision reads: The willful resistence to motion of limb by the claimant on occasion, as indicated in the electro- myographic examination, and supported by a prior neurological examination on the part of one of the doctors who examined him is in itself significant. (App. 224.) Dr. Langston’s subjective judgment was therefore used to support a denial of benefits on medical grounds. It was also used in assessing Perales’ credibility to diminish the weight given the “subjective recitation of the complaint of the claimant” because “there are inconsistencies” in his testi- mony “which have not been explained.” (App. 224). Thus, purely subjective statements of a doctor describing the state of mind of the claimant, submitted in evidence solely in 13 written form as opposed to medical conclusions, were ¢rongly relied upon as medically “significant” and used to discount the direct testimony, under oath, of the claimant. Il. THE GOVERNMENT SEEKS IN THIS CASE TO ES- TABLISH AN “OBJECTIVE EVIDENCE” STANDARD THAT IS STATUTORILY UNAUTHORIZED, IMPRAC- TICAL AND HARSH. The Government contends that in proceedings on claims for Disability Insurance benefits written reports of “‘ob- jective” tests and examinations should be considered in- herently reliable and probative evidence on the issue of disability. This contention arises from the strong emphasis on purely medical evidence in general and so-called “‘objec- tive” medical evidence in particular throughout the Social Security Administration’s consideration of Disability In- surance claims. In this case, the Social Security Adminis- tration applied standards requiring “‘objective” evidence of both the existence and the severity of the impairment. This standard is an improper basis of decision: it conflicts | with the statutorily-prescribed functional test of disability and in practical effect places an onerous burden on Disa- | bility Insurance claimants. Yet the Government defends the “objective evidence” standard here by urging the inhe- rent reliability and probative value of “‘objective”’ medical test reports as substantial evidence. A. The Government Seeks to Establish a Standard of Objective Evidence. The procedure followed by the Secretary under the reg- ulations and in this case unduly emphasizes medical and “objective” evidence. The acceptance of written reports of such “objective” evidence at face value, as the Govern- ment urges, would lend approval to a substantive “‘objec- tive” evidence test for disability claims. 14 The determination of non-disability made in the present case by the State agency?’ and hearing examiner illustrates the restrictive and burdensome effect of the application of the “objective” medical evidence test of disability. The Reconsideration Determination made by the State agency upon request of the claimant states that the medical eyi- dence failed to “reveal any nerve or bone impairment” and that Mr. Perales’ “ability to sit, stand and walk” was not seriously impaired. (App. 159) The Determination’s con- clusionary statement to the effect that the medical evidence fails to demonstrate a loss of function directly contradicts Dr. Morales’ findings that the claimant was unable to stoop, or, on beinding [sic] over, was un- able to bring his outstretched hands closer than about one foot from the floor. Patient was unable to hyperextend or flex the trunk to either side with- out a subjective complaint of pain. (App. 182). The requirement of “objective evidence” also entails that the results of only certain “‘objective” tests are considered by the State agency. Here Dr. Morales’ clinical findings of “muscle spasm in lumbo-sacro region of the spine” and “spasm .. . in the region of both sacro-iliac joints” were not considered by the State agency as objective evidence of an impairment (App. 182). The Determination con- cludes by stating that while Dr. Morales’ opinion as to the claimant’s inability to work has been considered, “‘in a case like this where judgments of physicians differ as to the ef- fects of impairments, the decision must be based on the objective evidence presented” (App. 159) (Emphasis added). The Agency’s emphasis on “‘objective evidence” to the exclusion of other medical evidence, the opinion of treat- ing doctors and claimant’s own statements of limitation of function and pain, appears in an evaluation report written by Dr. Howard Moses. Dr. Moses reviewed the medical evi- dence for the State agency on Reconsideration and con- cluded: - 21The Secretary contracts with State agencies, as authorized by 42 U.S.C. § 421, to make initial determinations of disability. 15 [A]lthough the claimant has complained of low back pain since an injury in 9-65 and he had surgery per- formed for reasons not quite apparent from the medical evidence, he has no objective evidence of severe othopedic or neurological impairment (App. 190) (Emphasis added.) The transcript of the hearing and the decision of the hear- ing examiner in the present case show that he erroneously placed undue weight on “objective”’ medical evidence. The examiner’s analysis of the medical evidence and his ques- tioning of Dr. Morales were directed to establishing the ex- istence of an impairment solely on the basis of “objective” medical evidence. The examiner’s concern with objective medical findings is demonstrated by the following statement made during the hearing: I have to find out the particular diagnosis based on the medical evidence—what is wrong; and the de- gree of severity; 1 have to determine the medical evidence that supports the diagnosis; / need clinical and pathological objective findings of the physician to support the diagnosis of the impairment (App. 87]. [Emphasis supplied. ] The application of the objective standard is further illus- trated by the fact that during the first hearing the examiner was of the opinion that there was no “objective” medical evidence verifying the existence of claimants’ alleged im- pairment. At one point in the hearing he directed claim- ant’s counsel to furnish a brief on the problem of “objec- tive clinical and pathological findings versus the honest opinion of a family physician that can’t put his finger on a particular thing to support his diagnosis . . .” (App. 87). At the second hearing the Medical Advisor reviewed the same evidence that Dr. Morales had analyzed in the first hearing and concluded that the “objective evidence”’ indi- cated a back impairment of mild severity (App. 142). The expert’s opinion of the severity of claimant’s condition was based exclusively on the results of certain objective tests. His opinion was adopted by the hearing examiner and made part of his findings (App. 225). 16 In his decision the Hearing Examiner considers separately the “subjective . . . evidence” and the “objective” evidence. The Hearing Examiner considered Respondent’s description of his functional limitations and his pain to be only “sub. jective” evidence relevant to “the low back syndrome, with its overlay of emotional involvement.” (App. 224) The Hearing Examiner apparently gave very little weight to this evidence because of unexplained “inconsistencies” in the testimony. (App. 224) The Hearing Examiner summarized the “objective” evi- dence as: two separate myelograms, an operation in which the surgeon was able to visually examine the patholo- gical condition, and a subsequent electromyographic examination. [App. 224] The Hearing Examiner characterized this evidence as indi- cating either “no impairment” or “only a mild involve- ment.” (App. 224) Contrary to these findings, however, the record includes the report of only one myelogram (en- titled “‘Repeat Myelogram,” App. 163). This report itself "expresses no conclusion, either positive or negative, as to pathology. See pp. 6-8, supra. The fallibility and complexity of these tests, see pp 4-13, supra, show the impermissibility, absent cross-examination, of attributing special weight to their interpretation on the basis of their “‘objectivity.”” The Hearing Examiner dis- counted the claimant’s testimony as to his pain and func- tional limitations apparently on the basis of doctor’s re- ports of poor effort or cooperation in the tests. (App. 224) The Secretary’s regulations evidence the same insistence on objective medical evidence. The regulations contemplate the award of disability benefits either on the basis of the exis- tence of an impairment alone or on the basis of a func- tional evaluation. The regulations spell out the impair- ments recognized by the Secretary as medically establishing disability per se. 20 C.F.R. 404.1502(a). In the nature of 17 these impairments, such as the loss of several limbs or ter- minal cancer, they are susceptible of verification by objec- tive diagnosis. Absent such objective evidence, the claim- ant must show an impairment entailing such limitation of his ability to perform significant functions that he is unable to do his previous work or, considering his age, education and work experience, any kind of substantial gainful work in the national economy. 20 C.F.R. 404.1502(b). In such cases, assuming impairments diagnosed as less severe than those listed by the Secretary, the regulations require the claimant to furnish evidence as to his education, work ex- perience, daily activities before and after onset of disability, and other pertinent facts demonstrating the functional ef- fect of his impairment. 20 C.F.R. 404.1523. This evidence is collected in very summary form in the claimant’s appli- cation for benefits (Exhibit No. 3), but the regulations pro- vide no guide for its evaluation. Therefore determinations must rely primarily on the medical evidence. The Government urges approval of this process and a stand- ard of “objective” evidence through a holding that the medi- cal evidence is of inherent reliability and probative value. That principle would authorize the acceptance of all reports of purportedly objective examinations or tests at face value. Such acceptance would allow reports showing negative re- sults to be considered substantial evidence sustaining the denial of claims. The Secretary would thereby gain autho- rity to deny claims merely on the basis of his inferences from—or the lack of—“‘objective”’ medical evidence. B. The Social Security Act Prescribes a Func- tional Test, Considering All the Evidence, for Disability Determinations. In 1956 Congress amended the Social Security Act to ex- tend Title II insurance benefits to persons afflicted with disabilities of sufficient severity to prevent their return to gainful employment. 42 USC 401 et seq. Through the — Disability Insurance program Congress sought to protect 18 workers against loss of wages, medical expenses and pain, and distress and deformity occasioned by a disabling im- pairment. The statutory standard for award of benefits requires that the claimant be physically or mentally impaired and that the impairment vitiate his employability. The impairment must be an impairment of extended duration: that results from anatomical, physiological, or psy. chological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnos. tic techniques. [42 USC § 423 (d) (3)] The claimant’s unemployability exists when: he is not only unable to do his previous work but cannot, considering his age, education, and work ex- perience, engage in any other kind of substantial gainful work which exists in the national economy .... [42 USC § 423(d) (2) (A)). The determination of disability involves consideration of the existence and severity of the claimant’s impairment and his ability in fact to function in a real job situation. The statute requires that the claimant furnish “such med- ical and other evidence as the Secretary may require”, 42 USC 8 423 (d) (5), and evidence received is to be considered “even though inadmissible under rules of evidence applica- ble to court procedure.” 42 USC § 405 (a). Under the statute, therefore, the determination of disability requires the sensitive evaluation of lay and technical evidence. The determination must seek a thorough and concrete resolu- tion of the claimant’s functional limitations and the de- mands of particular employment. The denial of a claim may not ordinarily rest on the monistic application of med- ical expertise. Disability may not properly be administra- tively simplified by abstraction blurring the concrete features of a claimant’s case, or by reduction of the deter- mination to quantitative measurement of localized impair- ment. 19 Reviewing courts have consistently held that Section 173(d(3) of the Act, 42 USC 8 423(d) (3), establishes the relevance and value of all medical evidence on the issue of impairment and does not require “objective” medical evi- dence. In Flake v. Gardner, 399 F.2d 532 (9th Cir. 1968), the court stated: [W]e doubt that [the amendment] was designed to restrict the medical evidence to “objective” or “‘phy- sical” symptoms. We used the word “objective” in discussing section 223(d) in Ryan v. Secretary, 9 Cir., 1968, 393 F.2d 340. But the statute does not use it. ... The statute refers to “medically acceptable clinical * * * diagnostic techniques.” Stedman’s Medical Dictionary, 20th Ed. defines “‘clinical”’ as: “2. Denoting the symptoms and course of a di- sease as distinguished from the laboratory find- ings of anatomical changes.” We venture to suggest that there may be people who are really disabled, and can be found so by medi- cally acceptable clinical diagnostic techniques, even though laboratory techniques do not support the diagnosis. [399 F.2d at 540.] See Mark v. Celebrezze, 348 F.2d 289, 292-293 (9th Cir. 1965). A number of appellate courts have held that reversible error is committed if the hearing examiner interprets the Act as requiring the claimant to establish a medical impair- ment by means of “objective” medical evidence. The Sixth Circuit in Whitt v. Gardner, 389 F.2d 906 (1968), held that Section 223(d) (3) does not require the medical evidence to be “objective’’: The Act nowhere states a requirement that a claim- ant establish his disability by “‘objective’’ medical evidence. In a case such as the present one, much of the evidence was subjective in nature. Appel- lant’s primary complaint being that of incapacita- tion because of extreme pain. This Court, as well as Others, has considered the infection of an exa- 20 miner’s findings by such an erroneous legal stand- ard to be reversible error, no matter what our view be as to the correctness of his ultimate conclusion, (Emphasis added.) [389 F.2d at 909]. Accord, Marion v. Gardner, 359 F.2d 175 (8th Cir. 1966), Page v. Celebrezze, 311 F.2d 757 (Sth Cir. 1963); Ber y, Celebrezze, 332 F.2d 293 (2nd. Cir. 1964). The posture of the courts on this issue arises from a rec- ognition of (1) the limited value of objective medical evi- dence on the question of a man’s ability to work and (2) the fact that disability is not exclusively a medical issue under the Act. 42 USC 423 (d) (2). Reviewing courts have frequently observed that “medicine is a notoriously inexact science” and, therefore, “objective” test results are not necessarily dispositive of the claimant’s disability. Dillon v. Celebrezze, 345 F.2d 753, 755 (4th Cir. 1965); Lackey v. Celebrezze, 349 F.2d 76, 78-79 (4th Cir. 1965); Stokes v. Finch, C.C.H. Unempl. Ins. Rep. para. 15,671 (D.S.C., December 3, 1969); Mark v. Celebrezze, supra; Combs v. Gardner, 382 F.2d 949, 956 (6th Cir. 1967); Santagate v. Gardner, 293 F. Supp. 1284, 1292 (D. Mass. 1968). The cases considering the factor of pain illustrate the limited value of “‘objective”’ tests. Reviewing courts have consistently acknowledged that pain is outside the scope of objective scientific measurement but is nonetheless a cru- cial factor in a disability determination. See e.g.. Flake v. Gardner, supra; Skeens v. Gardner, C.C.H. Unempl. Ins. Rep., para. 14,782 (4th Cir., May 12, 1967); Underwood v. Ribcoff, 298 F.2d 850 (4th Cir. 1962). Reviewing courts have additionally held that while the clinical opinion of the claimant’s treating physician as to the severity of an impair- ment and its effect on the claimant’s ability to function is not conclusive on the issue of disability, it must be accorded substantial weight. Combs v. Gardner, supra; Heslep v. Cele- brezze, 356 F.2d 891, 894 (4th Cir. 1966); Celebrezze v. Walter, 346 F.2d 156 (Sth Cir. 1965); Hayes v. Gardner, 376 F.2d 517 (4th Cir. 1967). 21 C. Considerations of Logic and Fairness Weigh Against an “Objective Evidence” Standard. The requirement of “objective” evidence in support of disability claims is supported by neither logic nor fairness to the claimant. The “objective evidence” standard greatly increases the burden of proof on the claimant. The evi- dence thus required is not reasonably necessary to the de- termination to be made. The value of written reports of “objective” tests or ex- aminations is severely limited by their complexity and fal- libility and by the narrow significance of the results. This brief elsewhere discusses the defects of the tests-the myel- ogram and electromyogram-performed on Respondent. Given such complexity and fallibility in execution, the rel- evance and weight of the evidence in determining the exist- ence and severity of the impairment must be determined in each case. See pp. 4-13, supra. Medical reports of objective tests or examinations pro- vide only some evidence on or partial answers to the ultimate question of disability. Such reports should not by any rule of evidence be invested with more value in a substantive decision than what they reasonably may be taken to show about impairment. What they show is a matter of interpre- tation, relying in turn on judgments of accuracy, and must be determined in each case. The present practice of relying on objective medical evi- dence results in placing an unwarranted burden of proof and hardship on disability claimants. Objective medical evi- dence necessitates costly examination and testing by specia- lists, the expense of obtaining extensive written reports from specialists, and the need to supply repetitive objective substantiation of the existence of impairments. Congress never intended for claimants to have these expenses in es- tablishing disability. Claimants usually have difficulty obtaining the extensive objective medical evidence now required to meet their bur- den of showing disability. Most claimants have few medical 22 sources, and a substantial number must rely exclusively on their family doctor to furnish medical evidence. Most diso- bility claimants are financially unable to arrange for speciaj examinations by specialists for the sole purpose of furnish. ing evidence of disability. And even if a claimant has been examined by a specialist in conjunction with his disability, it is frequently difficult and costly to persuade the physi- cian to develop his notes into a comprehensive medical re- port. : State agencies are not obligated to supplement the medi- cal evidence furnished by a claimant. Consultative examina. tions at government expense are discretionary and the large number of examinations arranged by the agency in the pres. ent case is unusual. The claimant has no power to compel the state agency to have him examined at government ex- pense. Once a state agency determines that an individual is not disabled, it does not authorize additional examina- tions simply because the claimant is dissatisfied with the determination. Disability recipients, as well as claimants, are poor.” Obviously if recipients are poor, claimants are poorer and lack the financial means to supply the evidence presently required to establish disability. Furthermore, they are likely to be uneducated and elderly. In 1966, 49.3 percent of the workers granted disability benefits had eight years or less of formal education,?* and 72 percent of them were over age 50.2* Pedro Perales is poor and has only a third grade education. 2 Brehm, Henry P., “The Disabled on Public Assistance,” U.S. De- partment of Health, Education and Welfare, Table 4 (June 1970). The median annual income, in 1966, of the 849,000 disabled worker beneficiaries, was $2,836; 34.7 percent were below the poverty level. Social Security Administration, U.S. Department of Health, Edu- cation and Welfare, Social Security Disability Applicant Statistics 1966, Pub. 70-11 (2-7), Table 14, p. 41. (November 1969). *Ibid., Table 2, p. 12. wa Consequently, disability claimants face the expense of establishing disability ill-prepared financially and educa- tionally to comply with their heavy burden of supplying objective medical evidence. Moreover, claimants are rarely represented at pre-hearing stages or at hearings by legal counsel or other qualified rep- resentatives. Only 18.9 percent of claimants are represented by attorneys at Social Security Administration hearings while an additional 7.6 percent are represented by persons other than attorneys.?> The appearance of an attorney or other representative at disability hearings has a marked ef- fect on the claimant’s success at the hearing. Reversal rates at hearings where claimants are represented by attorneys are 12 percent higher than at hearings where attorneys are not present.2° In absolute terms, the reversal rateg at all fed- eral disability hearings, for the period July 1965 to Septem- ber 1969, was 44.2 percent.?” But, when a claimant ap- peared alone the reversal rate was 38.8 percent, as contrasted to a 54.0 percent reversal rate when an attorney appeared 23 Statistics supplied to counsel by the Social Security Administra- tion’s Bureau of Hearings and Appeals. Figures for representation by attorneys and others at Social Security Administration Hearings are for fiscal years 1965 to 1970, the only years for which such figures ae available. Figures are for all Social Security Administration pro- gams, and are not available for individual programs. Even so, in fiscal year 1969 there were 27,948 requests for disability hearings as compared to 3,210 requests for retirement hearings, so that the fig- ures are clearly indicative of the result that would obtain if disability hearings were isolated. Rock, Michael H., “An Evaluation of the SSA Appeals Process,” US. Department of Health, Education and Welfare, Report No. 7, p.4 (April 1970). Interestingly, the reversal rate for non-attorney representatives is 10 percent higher than hearings where the claimant is represented by neither an attorney nor a non-attorney representa- tive. These rates are for hearings at which attorneys and non-attorney representatives appeared with claimants along with various combina- tions of other persons. "Ibid. p. 9. ay 24 along with a claimant.”® Not only does the presence of an attorney at a hearing greatly improve a claimant’s chances of success at the hearing, but it also increases the chance that an unfavorable hearing decision will be appealed.?9 Therefore, although representation at a hearing, and pre- sumably prior to the hearing stage, greatly increases a claim- ant’s success in establishing disability, more than0 percent of claimants are not represented by attorneys at hearings. Most claimants go without help in dealing with the intricate process of accumulating objective medical evidence, and in understanding the technical aspects of hearing procedures, The construction now placed on the Act’s requirements for qualifying for disability, with the dominance of “‘objective” medical evidence, has distorted the originally intended focus of the disability inquiry. The effect of reducing disability to a purely medical issue, because it is the least complicated method of determining disability, substantially increases a claimant’s burden in supplying the proof necessary to dem- onstrate disability. The result is a procedure which is ex- tremely burdensome to the vast majority of claimants. They are unable to accumulate or present objective medical find- ings, or to ensure the presence at hearings of doctors re- sponsible for these findings. 2 Ibid., p. 10. The 54.0 percent reversal rate is for hearings where only a claimant arid his attorney appeared. Ibid., p. 9. n. 4. 59 percent of the denied hearing cases involv- ing attorneys were appealed to the Appeals Council, as compared to 47 percent of the denials not involving lawyers. 25 CONCLUSION For the foregoing reasons, the judgment of the court of appeals should be affirmed. Respectfully submitted, HOWARD THORKELSON THOMAS PLACE Appalachian Research and Defense Fund 10 College Lane Prestonsburg, Kentucky 41653 JAMES M. HAVILAND DAVID E. SULLIVAN Legal Research for Appalachian Elderly 308 Coal & Coke Building Bluefield, West Virginia 24701 JONATHAN WEISS JAMES KRAUS Center on Social Welfare Policy and Law 401 West 117th Street New York, New York 10027 Counsel for Amici Curiae --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0280%3A05. Public record. Not legal advice.