SSR 71-53c: SECTION 205(g). -- DISABILITY INSURANCE BENEFITS -- HEARSAY MEDICAL EVIDENCE AS "SUBSTANTIAL EVIDENCE" -- USE OF MEDICAL ADVISERS

SSR 71-53c

Richardson v. Perales , 402 U.S., 389 (Supreme Court of the

United States, May 3, 1971)

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

In 1966 Pedro Perales, a San Antonio truck driver, then age 34, height

5'11", weight about 220 pounds, filed a claim for disability insurance

benefits under the Social Security Act. Sections 216(i)(1) and 223(d)(1)

of that Act, 42 U.S.C. §§ 416(i)(1) and 423(d)(1), both provide that the

term "disability" means "inability to engage in any substantial gainful

activity by reason of medically determinable physical or mental impairment

which . . ." [1] Section 205(g),

42 U.S.C. § 405(g), relating to judicial review, states, "The findings of

the Secretary as to any fact, if supported by substantial evidence, shall

be conclusive. . . ."

The issue here is whether physicians' written reports of medical

examinations they have made of a disability claimant may constitute

"substantial evidence" supportive of a finding of nondisability, within

the § 205(g) standard, when the claimant objects to the admissibility of

those reports and when the only live testimony is presented by his side

and is contrary to the reports.

I

In his claim Perales asserted that on September 29, 1965, he became

disabled as a result of an injury to his back sustained in lifting an

object at work. He was seen by a neurosurgeon, Dr. Ralph A. Munslow, who

first recommended conservative treatment. When this provided no relief,

myelography was performed and surgery for a possible protruded

intervertebral disc at L-5 was advised. The patient at first hesitated

about surgery and appeared to improve. On recurrence of pain, however, he

consented to the recommended procedure. Dr. Munslow operated on November

23. The surgical note is in the

margin. [2] No disc protrusion or

other definitive pathology was identified at surgery. The post-operative

diagnosis was "Nerve root compression syndrome, left." The patient was

discharged from Dr

hesitated

about surgery and appeared to improve. On recurrence of pain, however, he

consented to the recommended procedure. Dr. Munslow operated on November

23. The surgical note is in the

margin. [2] No disc protrusion or

other definitive pathology was identified at surgery. The post-operative

diagnosis was "Nerve root compression syndrome, left." The patient was

discharged from Dr. Munslow's care on January 25, 1966, with a final

diagnosis of "neuritis, lumbar, mild."

Mr. Perales continued to complain, but Dr. Munslow and Dr. Morris H.

Lambert, a neurologist called in consultation, were still unable to find

any objective neurological explanation for his complaints. Dr. Munslow

advised that he return to work.

In April 1966 Perales consulted Dr. Max Morales, Jr., a general

practitioner of San Antonio. Dr. Morales hospitalized the patient from

April 15 to May 2. His final discharge diagnosis was "Back sprain,

lumbo-sacral spine."

Perales then filed his claim. As required by § 221 of the Act, 42 U.S.C.

§ 421, the claim was referred to the state agency for determination. The

agency obtained the hospital records and a report from Dr. Morales. The

report set forth no physical findings or laboratory studies, but the

doctor again gave as his diagnosis "Back sprain -- lumbo-sacral spine,"

this time "moderately severe," with "Ruptured disk not ruled out." The

agency arranged for a medical examination, at no cost to the patient, by

Dr. John H. Langston, an orthopedic surgeon. This was done May 25.

rds and a report from Dr. Morales. The

report set forth no physical findings or laboratory studies, but the

doctor again gave as his diagnosis "Back sprain -- lumbo-sacral spine,"

this time "moderately severe," with "Ruptured disk not ruled out." The

agency arranged for a medical examination, at no cost to the patient, by

Dr. John H. Langston, an orthopedic surgeon. This was done May 25.

Dr. Langston's ensuing report to the Division of Disability Determination

was devastating from the claimant's standpoint. The doctor referred to

Perales' being "on crutches or cane" since his injury. He noted a slightly

edematous condition in the legs, attributed to "inactivity and sitting

around"; slight tenderness in some of thee muscles of the dorsal spine,

thought to be due to poor posture; and "a very mild sprain of those

muscles which would resolve were he actually to get a little exercise and

move." Apart from this, and form the residuals of the pantopaque

myelography and hemilaminectomy, Dr. Langston fond no abnormalities of the

lumbar spine. Otherwise, he described Perales as a "big physically healthy

specimen . . . obviously holding back and limiting all of his motions

intentionally. . . . His upper extremities, though they are completely

uninvolved by his injury, he holds very rigidly as though he were

semiparalyzed. His reach and grasp are very limited but intentionally so.

. . . Neurological examination is entirely normal to detailed sensory

examination with pinwheel vibratory sensations, and light touch. Reflexes

are very active and there is no atrophy anywhere." The orthopedist's

summarization, impression, and prognosis are in the

margin. [3]

holds very rigidly as though he were

semiparalyzed. His reach and grasp are very limited but intentionally so.

. . . Neurological examination is entirely normal to detailed sensory

examination with pinwheel vibratory sensations, and light touch. Reflexes

are very active and there is no atrophy anywhere." The orthopedist's

summarization, impression, and prognosis are in the

margin. [3]

The state agency denied the claim. Perales requested reconsideration. Dr.

Morales submitted a further report to the agency and an opinion to the

claimant's attorney. This outlined the surgery and hospitalizations and

his own conservative and continuing treatment of the patient, the

medicines prescribed, the administration of ultrasound therapy, and the

patient's constant complaints. The doctor concluded that the patient had

not made a complete recovery from his surgery, that he was not

malingering, that his injury was permanent and that he was totally and

permanently disabled. [4] He

recommended against any further surgery.

The state agency then arranged for an examination by Dr. James M. Bailey,

a board-certified psychiatrist with a subspecialty in neurology. Dr.

Bailey's report to the agency on August 30, 1966, concluded with the

following diagnosis:

The agency again reviewed the file. The Bureau of Disability Insurance of

the Social Security Administration made its independent review. The report

and opinion of Dr. Morales, as the claimant's attending physician, was

considered, as were those of the other examining physicians. The claim was

again denied.

report to the agency on August 30, 1966, concluded with the

following diagnosis:

The agency again reviewed the file. The Bureau of Disability Insurance of

the Social Security Administration made its independent review. The report

and opinion of Dr. Morales, as the claimant's attending physician, was

considered, as were those of the other examining physicians. The claim was

again denied.

Perales requested a hearing examiner. The agency then referred the

claimant to Dr. Langston and to Dr. Richard H. Mattson for

electromyography studies. Dr. Mattson's notes referred to "some chronic or

past disturbance of function in the nerve supply" to the left and right

anterior tibialis muscles and right extensor digitorium brevis muscles

that was "strongly suggestive of lack of maximal effort" and was "the kind

of finding that is typically associated with a functional or psychogenic

component to weakness." There was no evidence of "any active process

effecting [ sic ] the nerves at present." Dr. Langston advised the

agency that Dr. Mattson's finding of "very poor effort" verified what Dr.

Langston had found on the earlier physical examination.

The requested hearing was set for January 12, 1967, in San Antonio.

Written notice thereof was given the claimant with a copy to his attorney.

The notice contained a definition of disability, advised the claimant that

he should bring all medical and other evidence not already presented,

afforded him an opportunity to examine all documentary evidence on file

prior to the hearing, and told him that he might bring his own physician

or other witnesses and be represented at the hearing by a lawyer.

imant with a copy to his attorney.

The notice contained a definition of disability, advised the claimant that

he should bring all medical and other evidence not already presented,

afforded him an opportunity to examine all documentary evidence on file

prior to the hearing, and told him that he might bring his own physician

or other witnesses and be represented at the hearing by a lawyer.

The hearing took place at the time designated. A supplemental hearing was

held March 31. The claimant appeared at the first hearing with his

attorney and with Dr. Morales. The attorney formally objected to the

introduction of the several reports Drs. Langston, Bailey, Mattson, and

Lambert, and of the hospital records. Various grounds of objection were

asserted, including hearsay, absence of an opportunity for

cross-examination, absence of proof the physicians were licensed to

practice in Texas, failure to demonstrate that the hospital records were

proved under the Business Records Act, and the conclusory nature of the

reports. These objections were overruled and the reports and hospital

records were introduced. The reports of Dr. Morales and Dr. Munslow were

then submitted by the claimant's counsel and admitted.

At the two hearings oral testimony was submitted by claimant Perales, by

Dr. Morales, by a former fellow employee of the claimant, by a vocational

expert, and by Dr. Lewis A. Leavitt, a physician board-certified in

physical medicine and rehabilitation, and chief of, and professor in, the

Department of Physical Medicine at Baylor University College of Medicine.

Dr. Leavitt was called by the hearing examiner as an independent "medical

adviser," that is, as an expert who does not examine the claimant but who

bears and reviews the medical evidence and who may offer an opinion. The

adviser is paid a fee by the government. The claimant, through his

counsel, objected to any testimony by Dr. Leavitt not based upon

examination or upon a hypothetical. Dr

r. Leavitt was called by the hearing examiner as an independent "medical

adviser," that is, as an expert who does not examine the claimant but who

bears and reviews the medical evidence and who may offer an opinion. The

adviser is paid a fee by the government. The claimant, through his

counsel, objected to any testimony by Dr. Leavitt not based upon

examination or upon a hypothetical. Dr. Leavitt testified over this

objection and was cross-examined by the claimant's attorney. He stated

that the consensus of the various medical reports was that Perales had a

mild low-back syndrome of musculo-ligamentous origin.

The hearing examiner, in reliance upon the several medical reports and

the testimony of Dr. Leavitt, observed in his written decision, "There is

objective medical evidence of impairment which the heavy preponderance of

the evidence indicates to be of mild severity. . . . Taken altogether, the

Hearing Examiner is of the conclusion that the claimant has not met the

burden of proof." He specifically found that the claimant "is suffering

from a low back syndrome of musculo-ligamentous origin, and of mild

severity"; that while he "has an emotional overlay to his medical

impairment, it does not require psychiatric treatment and is of minimal

contribution, if any, to his medical impairment or to his general ability

to engage in substantial gainful activity"; that "neither his medical

impairment nor his emotional overlay,m singly or in combination,

constitute a disability as defined" in the act; and that the claimant is

capable of engaging as a salesman in work in which he had previously

engaged, of working as a watchman or guard where strenuous activity is not

required, or as a ticket-taker or janitor. The hearing examiner's

decision, then, was that the claimant was not entitled to a period of

disability or to disability insurance benefits.

a disability as defined" in the act; and that the claimant is

capable of engaging as a salesman in work in which he had previously

engaged, of working as a watchman or guard where strenuous activity is not

required, or as a ticket-taker or janitor. The hearing examiner's

decision, then, was that the claimant was not entitled to a period of

disability or to disability insurance benefits.

It is to be noted at this point that § 205(d) of the Act, 42 U.S.C. §

405(d), provides that the Secretary has power to issue subpoenas requiring

the attendance and testimony of witnesses and the production of evidence

and that the Secretary's regulations, authorized by § 205(a), 42 U.S.C. §

405(a), provide that a claimant may request the issuance of subpoenas, 20

CFR § 404.926. Perales, however, who was represented by counsel, did not

request subpoenas for either of the two hearings.

The claimant then made a request for review by the Appeals Council and

submitted as supplemental evidence a judgement dated June 2, 1967, in

Perales' favor against the insurance company for workmen's compensation

benefits aggregating $11,665.84, plus medical and related expenses, and a

medical report letter dated December 28, 1966, by Dr. Coyle W. Williams,

apparently written in support of a welfare claim made by Perales. In his

letter the doctor noted an essentially negative neurological and physical

examination except for tenderness in the lumbar area and limited straight

leg raising. He observed, "I cannot explain all his symptoms on a physical

basis. I would recommend he would re-condition himself and return to work.

My estimation, he has a 15% permanent partial disability of the body as a

whole." The Appeals Council ruled that the decision of the hearing

examiner was correct.

l

examination except for tenderness in the lumbar area and limited straight

leg raising. He observed, "I cannot explain all his symptoms on a physical

basis. I would recommend he would re-condition himself and return to work.

My estimation, he has a 15% permanent partial disability of the body as a

whole." The Appeals Council ruled that the decision of the hearing

examiner was correct.

Upon this adverse ruling the claimant instituted the present action for

review pursuant to § 205(g). Each side moved for summary judgment on the

administrative transcript. The District Court stated that it was reluctant

to accept as substantial evidence the opinions of medical experts

submitted in the form of unsworn written reports, the admission of which

would have the effect of denying the opposition an opportunity for

cross-examination; that the opinion of a doctor who had never examined the

claimant is entitled to little or no probative value, especially when

opposed by substantial evidence including the oral testimony of an

examining physician; and that what was before the court amounted to

hearsay upon hearsay. The case was remanded for a new hearing before a

different examiner. Perales v. Secretary , 288 F.Supp. 313

(WD Tex. 1968). On appeal the Fifth Circuit noted the absence of any

request by the claimant for subpoenas and held that, having this right and

not exercising it, he was not in a position to complain that he had been

denied the rights of confrontation and of cross-examination. It held that

the hearsay evidence in the case was admissible under the act; that,

specifically, the written reports of the physicians were admissible in the

administrative hearing; that Dr. Leavitt's testimony also was admissible;

but that all this evidence together did not constitute substantial

evidence when it was objected to and when it was contradicted by evidence

from the only live witnesses. Cohen v. Perales , 412 F.2d 44

(CA5 1969).

ible under the act; that,

specifically, the written reports of the physicians were admissible in the

administrative hearing; that Dr. Leavitt's testimony also was admissible;

but that all this evidence together did not constitute substantial

evidence when it was objected to and when it was contradicted by evidence

from the only live witnesses. Cohen v. Perales , 412 F.2d 44

(CA5 1969).

On rehearing, the Court of Appeals observed that it did not mean by its

opinion that uncorroborated hearsay could never be substantial evidence

supportive of a hearing examiner's decision adverse to a claimant. It

emphasized that its ruling that uncorroborated hearsay could not

constitute substantial evidence was applicable only when the claimant had

objected and when the hearsay was directly contradicted by the testimony

of live medical witnesses and by the claimant in person. Cohen v. Perales , 416 F.2d 1250 (CA5 1969). Certiorari was granted in order

to review and resolve this important procedural due process issue. 397

U.S. 1035 (1970).

II

We therefore are presented with the not uncommon situation of conflicting

medical evidence. The trier of fact has the duty to resolve that conflict.

We have, on the one hand, an absence of objective findings, an expressed

suspicion of only functional complaints, of malingering, and of the

patient's unwillingness to do anything about remedying an unprovable

situation. We have, on the other hand, the claimant's and his personal

physician's earnest pleas that significant and disabling residuals from

the mishap of September 1965 are indeed present.

The issue resolves, however, around a system which produces a mass of

medical evidence in report form. May material of that kind ever be

"substantial evidence" when it stands alone and is opposed by live medical

evidence and the client's own contrary personal testimony? The courts

below have held that it may not.

III

bling residuals from

the mishap of September 1965 are indeed present.

The issue resolves, however, around a system which produces a mass of

medical evidence in report form. May material of that kind ever be

"substantial evidence" when it stands alone and is opposed by live medical

evidence and the client's own contrary personal testimony? The courts

below have held that it may not.

III

The Social Security Act has been with us since 1935. Act of August 14,

1935, 49 Stat. 620. It affects nearly all of us. The system's

administrative structure and procedures, with essential determinations

numbering into the millions, are of a size and extent difficult to

comprehend. But, as the Government's brief here accurately pronounces,

"Such a system must be fair -- and it must

work." [5]

Congress has provided that the Secretary:

Section 205(b) directs the Secretary to make findings and decisions; on

request to give reasonable notice and opportunity for a hearing; and in

the course of any hearing to receive evidence. It then provides:

In carrying out these statutory duties the Secretary has adopted

regulations that state, among other things:

From this is apparent that (a) the Congress granted the Secretary the

power by regulation to establish hearing procedures; (b) strict rules of

evidence, applicable in the courtroom, are not to operate at social

security hearings so as to bar the admission of evidence otherwise

pertinent; and (c) the conduct of the hearing rests generally in the

examiner's discretion. There emerges an emphasis upon the informal rather

than the formal. This, we think, is as it should be, for this

administrative procedure, and these hearings, should be understandable to

the layman claimant, should not necessarily be stiff and comfortable only

for the trained attorney, and should be liberal and not strict in tone and

operation. This is the obvious intent of Congress so long as the

procedures are fundamentally fair.

IV

than the formal. This, we think, is as it should be, for this

administrative procedure, and these hearings, should be understandable to

the layman claimant, should not necessarily be stiff and comfortable only

for the trained attorney, and should be liberal and not strict in tone and

operation. This is the obvious intent of Congress so long as the

procedures are fundamentally fair.

IV

With this background and this atmosphere in mind, we turn to the

statutory standard of "substantial evidence" prescribed by § 205(g). The

Court has considered this very concept in other, yet similar, contexts.

The National Labor Relations Act, § 10(e), in its original form, provided

that the NLRB's findings of fact "if supported by evidence, shall be

conclusive." 49 Stat. 449, 454. The Court said this meant "supported by

substantial evidence" and that this was

The Court has adhered to that definition in varying statutory situations.

See NLRB v. Columbian Enameling & Stamping Co ., 306 U.S.

292, 300 (1939); Universal Cameron Corp . v. NLRB , 340 U.S.

474, 477-487 (1951); Consol v. Federal Maritime Commission ,

383 U.S. 607, 619-620 (1966).

V

We may accept the propositions advanced by the claimant, some of them

long-established, that procedural due process is applicable to the

adjudicative administrative proceeding involving "the different rules of

fair play, which, through the years, have become associated with differing

types of proceedings," Hannah v. Larche , 363 U.S. 420, 442

mission ,

383 U.S. 607, 619-620 (1966).

V

We may accept the propositions advanced by the claimant, some of them

long-established, that procedural due process is applicable to the

adjudicative administrative proceeding involving "the different rules of

fair play, which, through the years, have become associated with differing

types of proceedings," Hannah v. Larche , 363 U.S. 420, 442

(1960); that "the 'right' to Social Security benefits is in one sense

'earned.'" Flemming v. Nestor , 363 U.S. 603, 610 (1960); and

that the

The question, then, is as to what procedural due process requires with

respect to examining physicians' reports in a social security disability

claim hearing.

We conclude that a written report by a licensed physician who has

examined the claimant and who sets forth in his report his medical

findings in his area of competence may be received as evidence in a

disability hearing and, despite its hearsay character and an absence of

cross-examination, and despite the presence of opposing direct medical

testimony and testimony by the claimant himself, may constitute

substantial evidence supportive of a finding by the hearing examiner

adverse to the claimant, when the claimant has not exercised his right to

subpoena the reporting physician and there by provide himself with the

opportunity for cross-examination of the physician.

We are prompted to this conclusion by a number of factors that, we feel,

assure underlying reliability and probative value:

substantial evidence supportive of a finding by the hearing examiner

adverse to the claimant, when the claimant has not exercised his right to

subpoena the reporting physician and there by provide himself with the

opportunity for cross-examination of the physician.

We are prompted to this conclusion by a number of factors that, we feel,

assure underlying reliability and probative value:

1. The identity of the five reporting physicians is significant. Each

report presented here was prepared by a practicing physician who had

examined the claimant. [6] A

majority (Drs. Langston, Bailey, and Mattson) were called into the case by

the state agency. Although each received a fee, that fee is recompense for

his time and talent otherwise devoted to private practice or other

professional assignment. We cannot, and do not, ascribe bias to the work

of these independent physicians, or any interest on their part in the

outcome of the administrative proceeding beyond the professional curiosity

a dedicated medical man possesses.

2. The vast workings of the social security administrative system make

for reliability and impartiality in the consultant reports. We bear in

mind that the agency operates essentially, and is intended so to do, as an

adjudicator and not as an advocate or adversary. This is the congressional

plan. We do not presume on this record to say that it works

unfairly. [7]

medical man possesses.

2. The vast workings of the social security administrative system make

for reliability and impartiality in the consultant reports. We bear in

mind that the agency operates essentially, and is intended so to do, as an

adjudicator and not as an advocate or adversary. This is the congressional

plan. We do not presume on this record to say that it works

unfairly. [7]

3. One familiar with medical reports and the routine of the medical

examination, general or specific, will recognize their elements of detail

and of value. The particular reports of the physicians who examined

claimant Perales were based on personal consultation and personal

examination and rested on accepted medical procedures and tests. The

operating neurosurgeon, Dr. Munslow, provided his preoperative

observations and diagnosis, his findings at surgery, his post-operative

observations and diagnosis, and his post-operative observations. Dr.

Lambert, the neurologist, provided the history related to him by the

patient, Perales' complaints, the physical examination and neurologic

tests, and his professional impressions and recommendations. Dr Langston,

the orthopedist, did the same post-operatively, and described the

orthopedic tests and neurologic examination be performed, the results and

his impressions and prognosis. Dr. Mattson, who did the post-operative

electromyelography, described the results of that test, and his

impressions. And Dr. Bailey, the psychiatrist, related the history, the

patient's complaints, and the psychiatric diagnosis that emerged from the

typical psychiatric examination.

These are routine, standard, and unbiased medical reports by physician

specialists concerning a subject whom they had see. That the reports were

adverse to Perales' claim is not in itself bias or an indication of

nonprobative character.

y, the psychiatrist, related the history, the

patient's complaints, and the psychiatric diagnosis that emerged from the

typical psychiatric examination.

These are routine, standard, and unbiased medical reports by physician

specialists concerning a subject whom they had see. That the reports were

adverse to Perales' claim is not in itself bias or an indication of

nonprobative character.

4. The reports present the impressive range of examination to which

Perales was subjected. A specialist in neurosurgery, one in neurology, one

in psychiatry, one in orthopedics, and one in physical medicine and

rehabilitation add up to definitive opinion in five medical specialties,

all somewhat related, but different in their emphases. It is fair to say

that the claimant received professional examination and opinion on a scale

beyond the reach of most persons and that this case reveals a patient and

careful endeavor by the state agency and the examiner to ascertain the

truth.

5. So far as we can detect, there is no inconsistency whatsoever in the

reports of the five specialists. Yet each result was reached by

independent examination in the writer's field of specialized training.

6. Although the claimant complains of the lack of opportunity to

cross-examine the reporting physicians, he did not take advantage of the

opportunity afforded him under 20 CFR § 404.926 to request subpoenas for

the physicians. The five-day period specified by the regulation for the

issuance of the subpoenas surely afforded no real obstacle to this, for he

was notified that the documentary evidence on file was available for

examination before the hearing and, further, a supplemental hearing could

be requested. In fact, in this very case there was a supplemental hearing

more than two and a half months after the initial hearings

iod specified by the regulation for the

issuance of the subpoenas surely afforded no real obstacle to this, for he

was notified that the documentary evidence on file was available for

examination before the hearing and, further, a supplemental hearing could

be requested. In fact, in this very case there was a supplemental hearing

more than two and a half months after the initial hearings. This inaction

on the claimant's part supports the Court of Appeals' view, 412 F.2d, at

50-51, that the claimant as a consequence is to be precluded from now

complaining that he was denied the rights of confrontation and

cross-examination.

7. Courts have recognized the reliability and probative worth of written

medical reports even in formal trials and, while acknowledging their

hearsay character, have admitted them as an exception to the hearsay rule.

Notable is Judge Parker's well-known ruling in the war risk insurance case

of Long v. United States , 59 F.2d 602, 603-604 (CA4 1932),

which deserves quotation here, but which, because of its length, we do not

reproduce. The Second Circuit has made a like ruling in White v. Zutell , 263 F.2d 613, 615 (1959), and in so doing, relied on the

Business Records Act, 28 U.S.C. § 1732.

8. Past treatment by reviewing courts of written medical reports in

social security disability cases is revealing. Until the decision in this

case, the courts of appeals, including the Fifth Circuit, with only an

occasional criticism of the medical report

practice, [8] uniformly

recognized reliability and probative value in such reports. The courts

have reviewed administrative determinations and upheld many adverse ones,

where the only supporting evidence has been reports of this kind,

buttressed sometimes, but often not, by testimony of a medical adviser

such as Dr. Leavitt

uit, with only an

occasional criticism of the medical report

practice, [8] uniformly

recognized reliability and probative value in such reports. The courts

have reviewed administrative determinations and upheld many adverse ones,

where the only supporting evidence has been reports of this kind,

buttressed sometimes, but often not, by testimony of a medical adviser

such as Dr. Leavitt. [9] In these

cases admissibility was not contested, but the decisions do demonstrate

traditional and ready acceptance of the written medical report in social

security disability cases.

9 There is an additional and pragmatic factor which, although not

controlling, deserves mention. This is what Chief Judge Brown has

described as "the sheer magnitude of that administrative burden," and the

resulting necessity for written reports without "elaboration through the

traditional facility of oral testimony." Page v. Celebrezze ,

311 F.2d 757, 760 (CA5, 1963). With over 20,000 disability claim hearings

annually, the cost of providing live medical testimony at those hearings,

where need has not been demonstrated by a request for a subpoena, over and

above the cost of the examinations requested by hearing examiners, would

be a substantial drain on the trust fund and on the energy of physicians

already in short supply.

VI

1. Perales relies heavily on the Court's holding and statements in Goldberg v. Kelly, supra , particularly the comment that due

process requires notice "and an effective opportunity to defend by

confronting any adverse witness. . . . "397 U.S., at 267-268. Kelly , however, had to do with termination of AFDC benefits without

prior notice. It also concerned a situation, the Court said, "where

credibility and veracity are at issue, as they must be in many termination

proceedings." 397 U.S., at 269.

comment that due

process requires notice "and an effective opportunity to defend by

confronting any adverse witness. . . . "397 U.S., at 267-268. Kelly , however, had to do with termination of AFDC benefits without

prior notice. It also concerned a situation, the Court said, "where

credibility and veracity are at issue, as they must be in many termination

proceedings." 397 U.S., at 269.

The Perales proceeding is not the same. We are not concerned with

termination of disability benefits once granted. Neither are we concerned

with a change of status without notice. Notice was given to claimant

Perales. The physicians' reports were on file and available for inspection

by the claimant and his counsel. And the authors of those reports were

known and were subject to subpoena and to the very cross-examination which

the claimant asserts he has not enjoyed. Further, the spectre of

questionable credibility an veracity is not present; there is professional

disagreement with the medical conclusions, to be sure, but there is no

attack here upon the doctors' credibility or veracity. Kelly affords little comfort to the claimant.

2. Perales also, as did the Court of Appeals, 412 F.2d, at 53, 416 F.2d,

at 1251, would describe the medical reports in question as "mere

uncorroborated hearsay" and would relate this to Mr. Chief Justice Hughes'

sentence in Consolidated Edison co v. NLRB, supra , 305 U.S., at

230: "Mere uncorroborated hearsay or rumor does not constitute substantial

evidence."

comfort to the claimant.

2. Perales also, as did the Court of Appeals, 412 F.2d, at 53, 416 F.2d,

at 1251, would describe the medical reports in question as "mere

uncorroborated hearsay" and would relate this to Mr. Chief Justice Hughes'

sentence in Consolidated Edison co v. NLRB, supra , 305 U.S., at

230: "Mere uncorroborated hearsay or rumor does not constitute substantial

evidence."

Although the reports are hearsay in the technical sense, because their

content is not produced live before the hearing examiner, we feel that the

claimant and the Court of Appeals read too much into the single sentence

from Consolidated Edison . The contrast the Chief Justice was

drawing, at the very page cited, was not with material that would be

deemed formally inadmissible in judicial proceedings but with material

"without a basis in evidence having rational probative force." This was

not a blanket rejection by the Court of administrative reliance on hearsay

irrespective of reliability and probative value. The opposite was the

case.

3. The claimant, the District Court and the Court of Appeals also

criticize the use of Dr. Leavitt as a medical adviser, 288 F.Supp., at

314, 4 12 F.2d, at 43-54. See also Melford v. Gardner , 383

F.2d 748, 759-761 (CA6 1967). Inasmuch as medical advisers are used in

approximately 13% of disability claim hearings, comment as to this

practice is indicated. We see nothing "reprehensible" in the practice, as

the claimant would describe it. The trial examiner is a layman; the

medical adviser is a board-certified specialist. He is used primarily in

complex cases for explanation of medical problems in terms understandable

to the layman-examiner. He is a neutral adviser. This particular record

discloses that Dr. Leavitt explained the technique and significance of

electromyography. He did offer his own opinion on the claimant's

condition. That opinion, however, did not differ from the medical reports.

Dr

ist. He is used primarily in

complex cases for explanation of medical problems in terms understandable

to the layman-examiner. He is a neutral adviser. This particular record

discloses that Dr. Leavitt explained the technique and significance of

electromyography. He did offer his own opinion on the claimant's

condition. That opinion, however, did not differ from the medical reports.

Dr. Leavitt did not vouch for the accuracy of the fact assumed in the

reports. No one understood otherwise. See Doe v. Department of

Transportation , 412 F.2d 674, 678-680 (CA8 1969). We see nothing

unconstitutional or improper in the medical adviser concept and in the

presence of Dr. Leavitt in this administrative hearing.

4. Finally, the claimant complains of the system of processing disability

claims. He suggests, and is joined in this by the briefs of amici ,

that the Administrative Procedure Act, rather than the Social Security

Act, governs the processing of claims and specifically provides for

cross-examination. 5 U.S.C. § 556(d). The claimant goes on to assert that

in any event the hearing procedure is invalid on due process grounds. He

says that the hearing examiner has the responsibility for gathering the

evidence and "to make the government's case as strong as possible"; that

naturally he leans toward a decision in favor of the evidence he has

gathered; that justice must satisfy the appearance of justice, citing Offutt v. United States , 348 U.S. 11, 14 (1954), and In

re Murchison , 349 U.S. 133, 136 (1955); and that an "independent

hearing examiner, such as in the" Longshoremen's and Harbor Workers'

Compensation Act should be provided.

ong as possible"; that

naturally he leans toward a decision in favor of the evidence he has

gathered; that justice must satisfy the appearance of justice, citing Offutt v. United States , 348 U.S. 11, 14 (1954), and In

re Murchison , 349 U.S. 133, 136 (1955); and that an "independent

hearing examiner, such as in the" Longshoremen's and Harbor Workers'

Compensation Act should be provided.

We need not decide whether the APA has general application to social

security disability claims, for the social security administrative

procedure does not vary from that prescribed by the APA. Indeed, the

latter is modeled upon the Social Security Act. See Final Report of the

Attorney General's Committee on Administrative Procedure, contained in

Administrative Procedures in Government Agencies, S. Doc. 8, 77th Cong.,

1st Sess. (1941), at 157; see also, the remarks of Senator McCarran,

chairman of the Judiciary Committee of the Senate, 92 Cong. Rec. 2155

(1946). The cited § 556(d) provides that any documentary evidence "may be

received" subject to the exclusion of the irrelevant, the immaterial, and

the unduly repetitious. It further provides that a "party is entitled to

present his case or defense by oral or documentary evidence . . . and to

conduct such cross-examination as may be required for a full and true

disclosure of the facts" and in "determining claims for money or benefits

an agency may, where a party will not be prejudiced thereby, adopt

procedures for the submission of all or part of the evidence in written

form."

t a "party is entitled to

present his case or defense by oral or documentary evidence . . . and to

conduct such cross-examination as may be required for a full and true

disclosure of the facts" and in "determining claims for money or benefits

an agency may, where a party will not be prejudiced thereby, adopt

procedures for the submission of all or part of the evidence in written

form."

These provisions conform, and are consistent with, rather than differ

from or supersede, the authority given the Secretary by the Social

Security Act's § 205(a) and (b) "to establish procedures," and "to

regulate and provide for the nature and extent of the proofs and evidence

and the method of taking and furnishing the same in order to establish the

right to benefits," and to receive evidence "even though inadmissible

under rules of evidence applicable to court procedure." Hearsay, under

either Act, is thus admissible up to the point of relevancy.

The matter comes down to the question of the procedure's integrity and

fundamental fairness. We see nothing that works in derogation of that

integrity and that fairness in the admission of consultants' reports,

subject as they are to being material and to the use of the subpoena and

consequent cross-examination. This precisely fits the statutorily

prescribed "cross-examination as may be required for a full and true

disclosure of the facts." That is the standard. It is clear and workable

and does not fall short of procedural due process.

nd that fairness in the admission of consultants' reports,

subject as they are to being material and to the use of the subpoena and

consequent cross-examination. This precisely fits the statutorily

prescribed "cross-examination as may be required for a full and true

disclosure of the facts." That is the standard. It is clear and workable

and does not fall short of procedural due process.

Neither are we persuaded by the advocate judge-multiple-hat suggestion.

It assumes too much and would bring down too many procedures designed, and

working well, for a governmental structure of great and growing

complexity. The social security hearing examiner, furthermore, does not

act as counsel. He acts as an examiner charged with developing the facts.

The 44.2% reversal rate for all federal disability hearings in cases where

the state agency does not grant benefits, M. Rock, An Evaluation of the

SSA Appeals Process, U.S. Department of HEW, Report No. 7 (1970), at p. 9,

attests to the fairness of the system and refutes the implication of

impropriety.

We therefore reverse and remand for further proceedings. We intimate no

view as to the merits. It is for the district court now to determine

whether the Secretary's findings, in the light of all material proffered

and admissible, are supported by "substantial evidence" within the command

of § 205(g).

It is so ordered .

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. JUSTICE BRENNAN

concur, dissenting.

remand for further proceedings. We intimate no

view as to the merits. It is for the district court now to determine

whether the Secretary's findings, in the light of all material proffered

and admissible, are supported by "substantial evidence" within the command

of § 205(g).

It is so ordered .

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. JUSTICE BRENNAN

concur, dissenting.

This claimant for social security disability benefit had a serious back

injury. The doctor who examined him testified that he was permanently

disabled. His case is defeated, however, by hearsay evidence of doctors

and their medical reports about this claimant. Only one doctor who

examined him testified at the hearing. Five other doctors who had once

examined and the claimant did not testify an were not subject to

cross-examination. But their reports were admitted in evidence. Still

another doctor testified on the hearsay in the documents of the other

doctors. all of this hearsay may be received, as the Administrative

Procedure Act (5 U.S.C. § 556) provides that "any oral or documentary

evidence may be received." But this hearsay evidence cannot by itself be

the basis for an adverse ruling. The same section of the Act states that

"a party is entitled . . . to conduct such cross-examination as may be

required for a full and true disclosure of the

fact." [10]

As a consequence the Court of Appeals said:

Cross-examination of doctors in the physical injury cases is, I think,

essential to a full and fair disclosure of the

facts. [11]

itself be

the basis for an adverse ruling. The same section of the Act states that

"a party is entitled . . . to conduct such cross-examination as may be

required for a full and true disclosure of the

fact." [10]

As a consequence the Court of Appeals said:

Cross-examination of doctors in the physical injury cases is, I think,

essential to a full and fair disclosure of the

facts. [11]

The conclusion reached by the Court of Appeals that hearsay evidence

alone is not "substantial" enough to sustain a judgment adverse to the

claimant is supported not only by the Administrative Procedure Act but

also by the Social Security Act itself. Although Congress provided in the

Social Security At that "[e]vidence may be received at any hearing before

the Secretary even though inadmissible under rules of evidence applicable

to court procedure," see 42 U.S.C. § 405(b) (1964). Congress also provided

that finding[s] of the Secretary were to be conclusive only " if

supported by substantial evidence ." 42 U.S.C. § 405(g). Uncorroborated

hearsay untested by cross-examination does not by itself constitute

"substantial evidence." See Consolidated Edison Co . v. NLRB ,

305 U.S. 197, 230 (1938). Particularly where, as in this case, a

disability claimant appears and testifies as to the nature and extent of

his injury and his family doctor testifies in his behalf supporting the

fact of his disability, the Secretary should not be able to support an

adverse determination on the basis of medical reports from doctors who did

not testify or the testimony of an HEW employee who never even examined

the claimant as a patient.

This case is minuscule in relation to the staggering problems of the

Nation. But when a grave injustice is wreaked on an individual by the

presently powerful bureaucracy, it is a matter of concern to everyone, for

these days the average man can say "There but for the grace of God go

I."

not testify or the testimony of an HEW employee who never even examined

the claimant as a patient.

This case is minuscule in relation to the staggering problems of the

Nation. But when a grave injustice is wreaked on an individual by the

presently powerful bureaucracy, it is a matter of concern to everyone, for

these days the average man can say "There but for the grace of God go

I."

One doctor whose word cast his claimant into the limbo never saw him,

never examined him, never took his vital statistics nor saw him try to

walk or bend or lift weights.

He was a "medical advisor" to HEW. The use of circuit riding doctors who

never see nor examine claimants to defeat their claims should be beneath

the dignity of a great nation. Three other doctors who were not subject to

cross-examination were experts retained and paid by the Government. Some,

we are told, who were subject to no cross-examination were employed by the

Workmen's Compensation Insurance Co. to defeat respondent's claim.

Judge Spears who first heard this case said that the way hearing officers

parot "almost word for word the conclusion" of the "medical advisor"

produce "nausea" in him. Judge Spears added:

Then, when you pyramid hearsay from a so-called medical advisor, who,

himself, has never examined the man who claims benefits, then you just

compound it -- compound a situation that I simply cannot tolerate in my

own mind, and I can't see why a hearing examiner wants to abrogate his

duty and his responsibility and turn it over to some medical advisor.

Review of the evidence is of no value to us. The vice is in the procedure

which allows it in without testing it by cross-examination. Those

defending a claim look to defense-minded experts for their salvation.

Those who press for recognition of a claim look to other experts. The

problem of the law is to give advantage to neither, but to let trial by

ordeal of cross-examination distill the truth.

f the evidence is of no value to us. The vice is in the procedure

which allows it in without testing it by cross-examination. Those

defending a claim look to defense-minded experts for their salvation.

Those who press for recognition of a claim look to other experts. The

problem of the law is to give advantage to neither, but to let trial by

ordeal of cross-examination distill the truth.

The use by HEW of its stable of defense doctors without submitting them

to cross-examination is the cutting of corners -- a practice in which

certainly government should not indulge. The practice is barred by the

rules which Congress has provided; and we should enforce them in the

spirit in which they were written.

I would affirm this judgment.

[1] Not pertinent here are the

durational aspects of disability specified in the statutes definition.

[2] ". . . Midline incision is

made in upper border of the spine of L4 downward in the midline to the

upper sacrum. Dissection is carried down and in the subperiosteal space

exposing the interspaces at L4-5 and L5 S1. At each interspace, partial

laminectomy is carried out on the left and [end] of the bone adjacent to

the interspace followed by resection of the intervening ligament in order

that the interspace could be thoroughly explored both by inspection as

well as by palpation. In each instance, there was no protrusion of the

disc identified. Further resection downward over the sacrum is carries out

in order that we do not overlook the fragment of disc that may have

extruded extradurally in this space but more is found.

by resection of the intervening ligament in order

that the interspace could be thoroughly explored both by inspection as

well as by palpation. In each instance, there was no protrusion of the

disc identified. Further resection downward over the sacrum is carries out

in order that we do not overlook the fragment of disc that may have

extruded extradurally in this space but more is found.

"There seems to be more tightness of structures particularly of the roots

in the dural sac and the lumbar area than one usually encountered. It is

felt that this is the situation representing the root compression

syndrome, the exact mechanics of which is not apparent. It is felt that

for this reason that hemilaminectomy of the left L-5 would afford the

patient additional decompression and this is carried out. After this had

been done the dural sac bulges upward in a more normal position. Repeat

inspection through the intact dura reveals no evidence of an intradural

mass. Likewise the anterior aspect of the canal appears normal. . . ."

[3] "IMPRESSION: He may have a

very mild chronic back sprain associated with the congenital anomalies as

seen on x-ray, but it has been a long time since I have been so impressed

with the obvious attempt of a patient to exaggerate his difficulties by

simply just standing there and not moving -- not even the uninvolved upper

extremities. Thus, he has a tremendous psychological overlay to this

illness, and I sincerely suggest that he be seen by a psychiatrist.

"PROGNOSIS: He should have intensive physio-therapy in the form of active

exercise, including walking, bicycling, and an all out attempt at

conservative rehabilitation. Were he to follow this program, and were it

to be effective, I would estimate the time necessary at about three to six

months. This is also considering that he does not have any serious

psychiatric disease, though he obviously does have a tremendous

psychological overlay to his illness."

tive

exercise, including walking, bicycling, and an all out attempt at

conservative rehabilitation. Were he to follow this program, and were it

to be effective, I would estimate the time necessary at about three to six

months. This is also considering that he does not have any serious

psychiatric disease, though he obviously does have a tremendous

psychological overlay to his illness."

[4] "Diagnosis in this case

should be considered as crush injury to disc in the lumbo-sacral region of

the spine resulting in either a ruptured disc or a slipped disc which was

subsequently operated on by Dr. Ralph Munslow. Since the operation, thee

patient has not made a complete recovery; on the contrary, the patient

continues to complain as bitterly now as he did prior to surgery.

"Since I started seeing this patient on April 13, I have had occasion to

see and talk with him over 30 times. During this period and with this

number of visits, I have become thoroughly convinced that this man is not

malingering. I am completely convinced of his sincerity and of the genuine

and truthful nature of his complaints. From my own observations and from

physical examination considered opinion that this patient has indeed an

injury to he lumbo-sacral region of the spine which has not been corrected

by surgery. My opinion is that the injury sustained is of a permanent

nature and that as things presently stand, the patient is totally,

completely, and permanently disabled. It is my considered opinion that

this patient in the condition in which he finds himself at this time would

not be able to continue gainful employment as a common laborer. Inasmuch

as this patient has had previous surgery to the affected area, I do not

know that further surgery would have anything to offer him, and have told

him that about the most I could offer him would e a support belt to help

relieve the symptoms, by the use of a walking cane, and analgesics for

relief of the symptoms."

[5] Brief 4.

to continue gainful employment as a common laborer. Inasmuch

as this patient has had previous surgery to the affected area, I do not

know that further surgery would have anything to offer him, and have told

him that about the most I could offer him would e a support belt to help

relieve the symptoms, by the use of a walking cane, and analgesics for

relief of the symptoms."

[5] Brief 4.

[6] Although, as noted above,

one stated ground of objection was the absence of proof of the physicians'

Texas licensure, we do not understand that there is any serious issue as

to the possession of Texas licenses by Drs. Munslow, Lambert, Langston,

Bailey, and Mattson.

[7] We are advised by the

Government's brief, page 18, notes 7 and 8, that in fiscal 1968 515,938

disability claims were processed; that, of these, 343,628 (66 601%) were

allowed prior to the hearing stage; that approximately one-third of the

claims that went to hearing were allowed; and that 320,164 consultant

examinations were obtained.

[8] Ratliff v. Celebrezze , 338 F.2d 978, 982 (CA6 1964); but see Miracle v. Celebrezze , 351 F.2d 361, 365, 382-383 (CA6 1965).

[9] Ber v. Celebrezze , 332 F.2d 293, 296-298 (CA2 1964); Stancavage v. Celebrezze , 323 F.2d 373, 374 (CA 3 1963); Dupkunis v. Celebrezze , 323 F.2d 380, 383 (CA3 1963); Cochran v. Celebrezze , 325 F.2d 136, 138 (CA4 1963), Cuthrell v. Celebrezze , 380 F.2d 48, 50-51 (CA4 1964); Aldridge v. Celebrezze , 339 F.2d 190, 191 (CA5 1964); Dodsworth v. Celebrezze , 349 F.2d 312, 313-314 (CA5 1965); Bridges v. Gardner , 368 F.2d 86, 89 (CA5 1966); Green v. Gardner , 391 F.2d 606 (CA5 1968); Martin v. Finch ,

415 F.2d 793, 794 (CA5 1969); Breaux v. Finche , 421 F.2d

687, 689 (CA5 1970); Phillips v. Celebrezze , 330 F.2d 687,

689 (CA6 1964); Justice v. Gardner , 360 F.wd 998, 1000-1001

(CA 1966); Moon v. Celebrezze , 340 F.2d 926, 928 (CA7 1965); Pierce v. Gardner , 388 F.2d 846, 847 (CA7 1967), cert.

denied 393 U.S. 885; Celebrezze v

een v. Gardner , 391 F.2d 606 (CA5 1968); Martin v. Finch ,

415 F.2d 793, 794 (CA5 1969); Breaux v. Finche , 421 F.2d

687, 689 (CA5 1970); Phillips v. Celebrezze , 330 F.2d 687,

689 (CA6 1964); Justice v. Gardner , 360 F.wd 998, 1000-1001

(CA 1966); Moon v. Celebrezze , 340 F.2d 926, 928 (CA7 1965); Pierce v. Gardner , 388 F.2d 846, 847 (CA7 1967), cert.

denied 393 U.S. 885; Celebrezze v. Sutton , 3238 F.2d 417,

419-420 (CA8 1964); Brasher v. Celebrezze , 240 F.2d 413, 414

(CA8 1965); McMullen v. Celebrezze , 335 F.2d 811, 815 (CA9

1964), cert. denied 382 U.S. 854; Flake v. Gardner , 399 F.2d

532, 534 (CA9 1968); Celebrezze v. Warren , 339 F.2d 833, 836

(CA10 1964); McMillin v. Gardner , 384 F.2d 596, 597 (CA10

1967).

[10] S.Rep. No. 752, 79th

Cong., 1st Sess., pp. 22-23.

"The right of cross-examination extends, in a proper case, to written

evidence submitted pursuant to the last sentence of the subsection as well

as to cases in which oral or documentary evidence is received in open

hearing. . . . To the extent that cross-examination is necessary to bring

out the truth, the party should have it. . . ."

The House Judiciary Committee expressed a like view.

"The provision of its face does not confer a right of so-called

'unlimited' cross-examination. Presiding officers will have to make the

necessary initial determination whether the cross-examination is pressed

to unreasonable lengths by a party or whether it is required for the 'full

and true disclosure of the facts' stated in the provision. Nor is it the

intention to eliminate the authority of agencies to confer sound

discretion upon presiding officers in the matter of its extent. The test

is -- as the section states -- whether it is required 'for a full and true

disclosure of the facts. .

to unreasonable lengths by a party or whether it is required for the 'full

and true disclosure of the facts' stated in the provision. Nor is it the

intention to eliminate the authority of agencies to confer sound

discretion upon presiding officers in the matter of its extent. The test

is -- as the section states -- whether it is required 'for a full and true

disclosure of the facts. . . .' The right of cross-examination extends, in

a proper case, to written evidence submitted pursuant to the last sentence

of the section as well as to cases in which oral or documentary evidence

is received in open hearing. . . . To the extent that cross-examination is

necessary to bring out the truth, the party must have it. . . ." H.Rep.

NO. 1980, 79th Cong., 2d Sess., p. 37.

[11] While the Administrative

Procedure Act allows statutory exceptions of procedures different from

those in the Act, 5 U.S.C. § 556, there is no explicit ban in the Social

Security Act (42 U.S.C. § 405) of the right of cross-examination. And the

Regulations of the Secretary provide that there must be "a reasonable

opportunity for a fair hearing." 20 CFR § 404.927.