SSR 73-59c: Rescinded 1982

20 CFR 404.927 and 404.929

SSR 73-59c

James L. Peoples v. Richardson , 468 F.2d 601 (5th Cir., 1972)

Where claimant for disability insurance benefits seeks judicial review of

an adverse determination and a court remands the claim for additional

vocational testimony, directing that testimony of vocational expert be

based on observation of claimant at hearing, on claimant's further

testimony, if any, at hearing, and examination of exhibits and hearing

record rather than upon hypothetical question posed by administrative law

judge, and that expert's testimony be elicited free from any

cross-examination by administrative law judge, held , such

restrictions imposed by court are contrary to law; the court may not limit

the Administration's authority under its regulations (pursuant to which a

non-adversary procedure has been established), to examine witnesses,

including the vocational expert, and/or to inquire fully into all aspects

of his testimony.

Per CURIAM: In this action by claimant for Social Security disability

benefits (under 42 U.S.C. 405(g)), the District Court reviewed a final

decision of the Secretary of Health, Education and Welfare which denied

the claim on the ground that claimant was not disabled. The Court

concluded that the case should be remanded to the Secretary for further

administrative procedures.

Trial Judge, however, prescribed the method by which additional vocational

testimony on remand must be received

g)), the District Court reviewed a final

decision of the Secretary of Health, Education and Welfare which denied

the claim on the ground that claimant was not disabled. The Court

concluded that the case should be remanded to the Secretary for further

administrative procedures.

Trial Judge, however, prescribed the method by which additional vocational

testimony on remand must be received. He directed that on remand the

testimony of the vocational expert be based upon the expert's observation

of the claimant at the hearing, on further testimony that the claimant may

be called upon to give, and on examination of the exhibits and prior

record in this case, "rather than upon a hypothetical question posted by

the hearing examiner." The Trial Judge also directed that "the testimony

of the vocational expert should be elicited free from any

cross-examination on the part of the hearing examiner." The Secretary does

not object to the remand of these proceedings but enters strenuous

opposition to the restricted method of receiving the vocational expert's

testimony, and asks that we nullify them by reversing the District Court's

order.

We believe the Secretary's position to be correct and that the

restrictions imposed by the District Court relative to the expert's

testimony are contrary to law and must be set aside. We are familiar with

the Secretary's method of utilizing vocational experts, see Gardner v.

Gunter , 5 Cir., 1965, 354 F.2d 755; King v. Finch , 5 Cir.,

1970, 428 F.2d 709, and we see no impropriety in the hearing examiner

inquiring fully into the basis of the vocational expert's conclusions

relative to employment available to the claimant. The District Court may

not circumscribe the hearing examiner's authority to examine witnesses,

including the vocational expert. See 42 U.S.C. 405(b). The regulations

which the Secretary has adopted provided for the conduct of the hearing

and examination of witnesses, see 20 C.F.R

fully into the basis of the vocational expert's conclusions

relative to employment available to the claimant. The District Court may

not circumscribe the hearing examiner's authority to examine witnesses,

including the vocational expert. See 42 U.S.C. 405(b). The regulations

which the Secretary has adopted provided for the conduct of the hearing

and examination of witnesses, see 20 C.F.R. 404.927 and 404.929, and these

regulations are established under authority of the Social Security Act, 42

U.S.C. 405(a). Richardson v. Perales , 402 U.S. 389, 400, 91 S. Ct.

1420, 1426 (1971). The regulations do not contemplate the restrictions

attempted to be imposed by the District Court.

Accordingly, we hold that the restriction imposed by the District Judge

were improper and contrary to law and that his findings in this regard

must be reversed so that the hearing examiner's role in these proceedings

may not be impaired and the purposes of the Act be fully accomplished.

Reversed .