Allison v. Heckler, 82-2613

• Decision Date: 24 June 1983
• Docket Number: No. 82-2613,82-2613
• Citation: 711 F.2d 145
• Parties: Betty ALLISON, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Department of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 145

711 F.2d 145

2 Soc.Sec.Rep.Ser. 285

Betty ALLISON, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Department of Health and Human Services, Defendant-Appellee.

No. 82-2613.

United States Court of Appeals, Tenth Circuit.

June 24, 1983.

Frank W. Davis, Guthrie, Okl., for plaintiff-appellant.

William S. Price, U.S. Atty., and Richard W. Freeman, Jr., Asst. U.S. Atty., Oklahoma City, Okl., for defendant-appellee.

Before SETH, Chief Judge, and McWILLIAMS and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

Betty Allison brought this action pursuant to 42 U.S.C. § 405(g) (Supp. V 1981) ¹ after her application for disability benefits under the Social Security Act was denied. The district court determined that the administrative decision was supported by substantial evidence and dismissed the complaint. Allison appeals and we reverse.

I.

Allison, a sixty year old woman, has not worked since she had surgery for a double hernia in late December 1980. Within a few days of this surgery she developed nearly fatal multiple pulmonary emboli. From that time she has suffered from severe chest pain and shortness of breath, chronic phlebitis in her legs, and pain and swelling in her legs and feet. She is unable to stand or walk for any length of time and must frequently elevate her legs.

After Allison's original application for disability benefits was denied, she obtained a hearing before an administrative law judge (ALJ). Appearing without counsel, she testified to the medical history set forth above. Her daughter accompanied her and supported her testimony. Allison also offered her medical records and three letters from her treating physician, who stated that in his opinion Allison was totally disabled. Another letter from an examining internist described Allison's medical condition but did not offer an opinion on her disability. No evidence adduced at the hearing refuted Allison's claim of disability.

After the hearing, the ALJ took the matter under advisement and sent Allison's hearing record to a Dr. Harvey, who was under contract with the Department of Health and Human Services. Dr. Harvey reviewed Allison's records but did not examine her. He concluded that she was not disabled. The explanations in Dr. Harvey's report were adopted by the ALJ and were the basis for his decision that Allison was not disabled.

On appeal, Allison contends that the ALJ's reliance on a post-hearing report denied her due process because she had no notice of the report, no opportunity to cross-examine Dr. Harvey, and no opportunity to offer evidence in rebuttal. Allison also alleges that the ALJ improperly gave controlling weight to the opinion of a nonexamining physician, despite a treating physician's opinion to the contrary.

II.

The Social Security Act provides disability benefits to persons unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 423(d)(1)(A) (1976). A claimant whose application for such benefits is denied is entitled to "reasonable notice and opportunity for a hearing with respect to such decision." 42 U.S.C. § 405(b)(1) (Supp. V 1981). This hearing is subject to procedural due process considerations. Richardson v. Perales, 402 U.S. 389, 401-02, 91 S.Ct. 1420, 1427-1428, 28 L.Ed.2d 842 (1971).

An ALJ's use of a post-hearing medical report constitutes a denial of due process because the applicant is not given the opportunity to cross-examine the physician or to rebut the report. Cowart v. Schweiker, 662 F.2d 731, 737 (11th Cir.1981); Gullo v. Califano, 609 F.2d 649, 650 (2d Cir.1979); Lonzollo v. Weinberger, 534 F.2d 712, 714 (7th Cir.1976); see also Perales, 402 U.S. at 410, 91 S.Ct. at 1431-1432 (approving "the admission of consultants' reports subject as they are to being material and to the use of the subpoena and consequent cross-examination" (emphasis added)); Treadwell v. Schweiker, 698 F.2d 137, 144 (2d Cir.1983); Fernandez v. Schweiker, 650 F.2d 5, 8 (2d Cir.1981); Pidgeon v. Health & Human Services, 493 F.Supp. 1088, 1089 (E.D.Mich.1980). Moreover, such a practice exceeds the Secretary's statutory authority. The Secretary is clearly mandated by statute to determine a claimant's disability "on the basis of evidence adduced at the hearing." ² 42 U.S.C. § 405(b)(1).

Consequently, along with other courts that have considered this practice, "we view with some alarm the Secretary's confident assertion that 'it is not uncommon for the ALJ to receive reports subsequent to the administrative hearing' especially if such unchallenged submissions supply the basis for decision." Gullo, 609 F.2d at 650 (quoted in Cowart, 662 F.2d at 737). We conclude that the ALJ's reliance on Dr. Harvey's post-hearing report denied Allison a full and fair hearing. ³ Accordingly, the judgment is reversed and the case is remanded to the Secretary for further proceedings. Should the Secretary wish to reopen the hearing and properly admit Dr. Harvey's report, Allison must be provided the opportunity to subpoena and cross-examine Dr. Harvey, and to offer evidence in rebuttal.

Allison also contends that the ALJ should not have accorded controlling weight to the report of a nonexamining physician. The general rule is that "the written reports of medical advisors who have not personally examined the claimant 'deserve little weight in the overall evaluation of disability. The advisers' assessment of what other doctors find is hardly a basis for competent evaluation without a personal examination of the claimant.' " Woodard v. Schweiker, 668 F.2d 370, 374 (8th Cir.1981) (quoting Landess v. Weinberger, 490 F.2d 1187, 1190 (8th Cir.1974)); accord Hall v. Harris, 658 F.2d 260, 266 (4th Cir.1981); Carver v. Harris, 634 F.2d 363, 364 (7th Cir.1980). When the treating physician's opinion is supported by medical evidence and is not unacceptably brief and conclusory, it "is entitled to more weight on the question of disability than the opinion of a physician who has reviewed the medical evidence, but has never examined the patient." Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir.1982); see also Cavitt v. Schweiker, 704 F.2d 1193, 1195 n. 11 (10th Cir.1983). However, in view of our remand, we need not at this time consider the proper weight to...