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

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URL: https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_71_53c

## Section

- **Citation:** SSR 71-53c
- **Heading:** SSR 71-53c: SECTION 205(g). -- DISABILITY INSURANCE BENEFITS -- HEARSAY MEDICAL EVIDENCE AS "SUBSTANTIAL EVIDENCE" -- USE OF MEDICAL ADVISERS
- **Jurisdiction:** Federal
- **Kind:** Rulings
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Social Security Rulings / OASI / Evidence, Procedure, and Certification for Payment / SSR 71-53c

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_71_53c. Check the current official text before relying on it. Not legal advice.