Richardson v. Perales, 402 U.S. 389 (1971), was a case heard by the United States Supreme Court to determine and delineate several questions concerning administrative procedure in Social Security disability cases. Among the questions considered was the propriety of using physicians' written reports generated from medical examinations of a disability claimant, and whether these could constitute "substantial evidence" supportive of finding nondisability under the Social Security Act..
Issues
1.) Do written reports by physicians who have examined a claimant for disability benefits under the Social Security Act constitute “substantial evidence”?
2.) Are such reports allowable to support a finding of non-disability?
3.) Are such reports hearsay under the rules of evidence in administrative law hearings?
4.) Is cross-examination of the authors of such reports allowable under the subpoena rules of administrative law?
5.) Does the failure of the claimant to exercise subpoena power, and call hostile witnesses for cross examination at a hearing constitute a violation of due process requirements?
6.) Are federal administrative law judges allowed to seek opinion evidence, or case advisement from neutral observers whom they hire, without the permission of the claimant?
7.) What is the status of “stacked hearsay,” where opinion reports are created based on other opinions about the claimant, but without examining the claimant?
8.) Is the Social Security Act to be interpreted liberally in matters of disability determination?
9.) Are Social Security disability benefits an entitlement subject to the due process protections of the Fourteenth Amendment of the United States Constitution, as delineated in Goldberg v. Kelly? 397 U.S. 254 (1970)
Holdings
1.) Written reports submitted by physicians in the treatment and evaluation of patients are admissible, and should be considered substantial evidence in disability hearings under the Social Security Act, even though by their nature, they are ‘hearsay.”
2.) Hearsay evidence is admissible up to the point of relevancy in such hearings.
3.) Subpoena of witnesses is within the jurisdiction and allowable under the rules of procedure in Social Security disability hearings.
4.) Reliance on “stacked hearsay” - where written records are reviewed by others who have not examined the patient, but issue reports based on their review, which then are followed by more generation of reports by individuals who have reviewed the record should be discouraged.
5.) It is within the jurisdiction of administrative law judges to hire outside case consultants or advisors to review the issues of the case and offer reports and testimony in the furtherance of resolution. This is a practice that is advisable, in particular in those cases where the medical records and testimony are conflicting, or the medical issues are not clear.
6.) The Social Security Act is to be interpreted liberally in favor of the claimant.
7.) Social Security disability is different from welfare entitlements and does not require the same level of due process protections under the Fourteenth Amendment of the United States Constitution as the court delineated in Goldberg v. Kelly
Facts and background In 1966 Pedro Perales, a San Antonio truck driver, then aged 34, height 5' 11", weight about 220 pounds, filed a claim for disability insurance benefits under the Social Security Act.Sections 216 (i) (1), 68 Stat. 1080, and 223 (d) (1), 81 Stat. 868, of that Act, 42 U.S.C. 416 (i) (1) and 42 U.S.C. 423 (d) (1) (1964 ed., Supp. V), both provide that the term "disability" means "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . ."Section 205 (g), 42 U.S.C. 405 (g) Judicial review, as noted in the statute relates, "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . ."
Pedro Perales had claimed he had received a back injury by lifting an object at work. Some of his doctors were unable to find an objective neurological explanation for his continuing pain. His doctors' medical reports were submitted to the state Division of Disability Determination, which ordered a consultative examination, which was unfavorable to him.See 402 U.S. at 392 At an agency hearing, the division had called an independent "medical advisor", Dr. Leavitt to assess the medical reports from Mr. Perales' doctors. Dr. Leavitt did not examine Perales but stated that the consensus of the medical reports was that Perales had suffered an impairment of only mild severity. The division denied Perales' claim for disability benefits.
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. Perales injured his back and subsequently had lumbar spinal surgery. He was deemed to have had a successful result by his physician and others who reviewed his case. Perales contended the surgery had been unsuccessful, in that he was unable to return to work. He presented an opinion from a physician confirming the belief that he was unemployable. Despite this, the administrative hearing found that he was not eligible for Social Security Disability. Perales did not subpoena the doctors who had written unfavorable reports and cross examine them in the course of his hearing, despite having the opportunity to do so. Later, he claimed this failure, on his part had denied him of a fair hearing, and hence claimed a violation of his constitutional right to due process.
Majority Opinion by Mr. Justice Blackmun
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and HARLAN, STEWART, WHITE, and MARSHALL, JJ., joined. DOUGLAS, J., filed a dissenting opinion, in which BLACK and BRENNAN, JJ., joined.
Part 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. Surgery to the lumbar spine was performed, but without relief. The patient was dismissed from the practice of Dr. Munslow on January 25, 1966, with a final diagnosis of "Neuritis, lumbar, mild."[402 U.S. 389, 391]
Mr. Perales continued to complain, but examining physicians were unable to find any objective neurologic explanations for his complaints. He was advised to return to work.[402 U.S. 389, 392] 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.
Dr. Langston's ensuing report to the Division of Disability Determination was devastating from the claimant's standpoint. There was little evidence of any pathology which would render the claimant disabled.[402 U.S. 389, 393]
The state agency denied the claim. Perales requested reconsideration. Other physicians were unable to establish a diagnosis consistent with disability. A psychological assessment opined he had a hostile personality [402 U.S. 389, 394]
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, were considered, as were those of the other examining physicians. The claim was again denied.
Perales requested a hearing before a hearing examiner.[402 U.S. 389, 395] The requested hearing was set for January 12, 1967, in San Antonio. Written notice thereof was given to 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.
Two hearings were held on January 12 and March 31, 1967. The claimant appeared at the first hearing with his attorney and with Dr. Morales. The attorney formally objected to the introduction of the several unfriendly reports of examining physicians. Counsel asserted, among other things, the reports were hearsay.
At the two hearings oral testimony was submitted by claimant Perales, by Dr. Morales, by a former fellow [402 U.S. 389, 396] 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 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 hears 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.[402 U.S. 389, 397]205 (d) of the Act, 42 U.S.C. 405 (d), provides that the Secretary has power to issue subpoenas (subpoena ad testificandum;subpoena duces tecum) 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 404.926Perales, 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 judgment dated June 2, 1967, in Perales' favor against an insurance company for workmen's compensation benefits. 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).[402 U.S. 389, 398] 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 (1969)