Richardson V. Perales - Concurring and Dissenting Opinion

Concurring and Dissenting Opinion

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. JUSTICE BRENNAN concur, dissenting. This claimant for social security disability benefits 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 the claimant did not testify and 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 (d) (1964 ed., Supp. V)) provides that "ny 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 " party is entitled . . . to conduct such cross-examination as may be required for a full and true disclosure of the facts."

As a consequence the Court of Appeals said: "Our opinion holds, and we reaffirm, that mere uncorroborated hearsay evidence as to the physical condition of a claimant, standing alone and without more, in a social security disability case tried before a hearing examiner, as in our case, is not substantial evidence that will support a decision of the examiner adverse to the claimant, if the claimant objects to the hearsay evidence and if the hearsay evidence is directly contradicted by the testimony of live medical witnesses and by the claimant who in person before the examiner, as was done in the case at bar." 416 F.2d 1250, 1251.

Cross-examination of doctors in these physical injury cases is essential to a full and fair disclosure of the facts.

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 Act that "vidence may be received at any hearing before the Secretary even though inadmissible under rules of evidence applicable to court procedure," Congress also provided that findings of the Secretary were to be conclusive only "if supported by substantial evidence." Uncorroborated hearsay untested by cross-examination does not by itself constitute "substantial evidence." 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.

One doctor whose word cast this claimant into limbo never saw him, never examined him, never took his vital statistics or saw him try to walk or bend or lift weights.

He was a "medical adviser" to HEW. The use of circuit-riding doctors who never see or 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 company to defeat respondent's claim.

Judge Spears who first heard this case said that the way hearing officers parrot "almost word for word the conclusions" of the "medical adviser" produced "nausea" in him. Judge Spears added: "earsay evidence in the nature of ex parte statements of doctors on the critical issue of a man's present physical condition is just a violation of the concept with which I am familiar and which bears upon the issue of fundamental fair play in a hearing. "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.

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 the 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.

"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 on 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.'. . . 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. . . ." While the Administrative Procedure Act allows statutory exceptions of procedures different from those in the Act there is no explicit ban in the Social Security Act against the right of cross-examination. And the Regulations of the Secretary provide that there must be "a reasonable opportunity for a fair hearing."

Reversed and remanded.