Cohen v. Perales, No. 26238.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtCOLEMAN and GOLDBERG, Circuit , and SKELTON, of the Court of Claims
Citation412 F.2d 44
Decision Date01 May 1969
Docket NumberNo. 26238.
PartiesWilbur J. COHEN, Secretary of Health, Education and Welfare, Appellant, v. Pedro PERALES, Appellee.

412 F.2d 44 (1969)

Wilbur J. COHEN, Secretary of Health, Education and Welfare, Appellant,
v.
Pedro PERALES, Appellee.

No. 26238.

United States Court of Appeals Fifth Circuit.

May 1, 1969.


412 F.2d 45
COPYRIGHT MATERIAL OMITTED
412 F.2d 46
Ted Butler, Asst. U. S. Atty., Ernest Morgan, U. S. Atty., San Antonio, Tex., Michael C. Farrar, Kathryn H. Baldwin, Attys., Dept. of Justice, Washington, D. C., Edwin L. Weisl, Jr., Asst. Atty. Gen., for appellant

Michael B. Hunter, Richard Tinsman, Anthony J. Ferro, San Antonio, Tex., for appellee.

Lonnie W. Duke, Arthur L. Schiff, San Antonio, Tex., for amicus curiae.

Before COLEMAN and GOLDBERG, Circuit Judges, and SKELTON, Judge of the Court of Claims.*

412 F.2d 47

SKELTON, Judge:

Pedro Perales, Appellee, hereinafter called claimant, filed an application for social security benefits in April 1966, claiming that a back injury received by him on September 29, 1965, had disabled him. This application was filed with the Secretary of Health, Education and Welfare, hereinafter called "the Secretary" or "HEW," under 42 U.S.C.A. Sections 416(i) (1) and 423 of the Social Security Act. His application was disapproved, and, thereafter, he requested and was granted a hearing before an examiner. The hearing consisted of two sessions, the first of which was held in San Antonio, Texas, on January 12, 1967. The supplemental hearing was held on March 31, 1967.

At the hearings, the examiner offered and introduced into evidence, over the objection of claimant's attorney, a number of unsworn medical reports of doctors who had examined the claimant but who were not present at either hearing and did not testify. The claimant objected to this evidence on the ground it was hearsay and its admission deprived him of the right to be confronted by witnesses who were against him and of the right to cross-examine them. The examiner overruled the objections and received the reports into evidence.

The examiner also allowed a Dr. Lewis A. Leavitt to testify over the objection of claimant. He had been flown from Houston to San Antonio by HEW to testify as an expert in the case. He had never examined the claimant and his testimony consisted of his "interpretation" of the medical reports of the absent doctors mentioned above. The claimant objected to this testimony because it was hearsay based on hearsay and because the witness' answers were not confined to hypothetical questions. Actually, he was not asked any hypothetical questions. The examiner allowed this witness to "interpret" the reports of the absent doctors in such a way as to indicate that claimant was not disabled.

The only direct evidence from live witnesses bearing on the physical condition of the claimant was that of the claimant himself and one Dr. Max Morales, who had examined and treated him. This evidence showed that the claimant was disabled and supported his claim for the social security benefits.

After the second hearing, the examiner determined, on May 12, 1967, that the claimant was not entitled to disability benefits. The claimant requested a review by the Appeals Council on June 16, 1967, and on July 20, 1967, he was notified that the Appeals Council had approved the examiner's denial of his claim and that its affirmance of his decision constituted the final decision of the Secretary in his case.

The claimant appealed his case to the United States District Court for the Western District of Texas. After HEW filed its answer, both parties filed motions for summary judgment. The court heard the motions, and on February 13, 1968, denied both motions and reversed the decision of the Secretary denying the relief sought, and remanded the cause to the Secretary for a full new hearing before a different examiner. In addition to the order of February 13, 1968, the court filed a memorandum opinion in the case on August 13, 1968, which contains basically the same recitations and orders that were included in his order of remand of February 13, 1968.

The Secretary appealed the case to this court. The claimant filed a motion here to dismiss the appeal on the ground that the judgment of the trial court was interlocutory and not appealable. We entered an order carrying this motion along with the appeal.

The three basic questions to be decided here are: (1) Was the decision of the trial court an appealable one? (2) Is hearsay evidence, when objected to, admissible in an administrative agency hearing such as the HEW hearing in this case? (3) If hearsay evidence is admissible over objection in an administrative agency hearing, such as that of the HEW in this case, is such hearsay evidence, standing alone and without more, substantial evidence?

412 F.2d 48

We will consider these questions in the order given. It is our view that this case is an appealable one. We think this question is governed by the provisions of 42 U.S.C. § 405(g) which provides:

* * * * * *
(g) The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. * * * The court shall, on motion of the Secretary made before he files his answer, remand the case to the Secretary for further action by the Secretary, and may, at any time, on good cause shown, order additional evidence to be taken before the Secretary * * *. The judgment of the court shall be final except that it shall be subject to review in the same maner as a judgment in other civil actions.

It will be noted that this statute authorizes the court to enter a judgment "affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." The statute also states that such judgments "shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions." Of course, 28 U.S.C. § 1291 gives the courts of appeals jurisdiction to review appeals from all final decisions of the district courts.

It appears clear to us that here where the district court entered an order denying the motions for summary judgment and reversing the decision of the Secretary and remanding the case to the Secretary for a full new hearing, in accordance with his order of remand, the case is an appealable one. See Jamieson v. Folsom, 7 Cir., 1963, 311 F.2d 506, cert. denied, 374 U.S. 487, 83 S.Ct. 1868, 10 L.Ed.2d 1043 (1963); Gardner v. Moon, 8 Cir., 1966, 360 F.2d 556, 558, and Celebrezze v. Lightsey, 5 Cir., 1964, 329 F.2d 780.

Also, we think the remand order is final within the meaning of 28 U.S.C. § 1291. The finality requirement of this section has usually been given a practical rather than a technical construction. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964).

It should be noted that not all orders under 42 U.S.C. § 405(g) are appealable. In situations where the Secretary moves the court before he files an answer, or at the request of either party, the court remands the case for additional evidence, the order would not be appealable. An order remanding the case for additional or supplementary evidence, without a review by the court of the administrative record nor a decision by it on the substantial evidence question, is without doubt an interlocutory order and is not appealable. Likewise, an order sua sponte by the court for the taking of additional evidence is not appealable. Bohms v. Gardner, 8 Cir., 1967, 381 F.2d 283, cert. denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164 (1968).

In the case before us, the court not only denied the motions for summary judgment and reversed the decision of the Secretary, but also established standards for the admission of hearsay evidence and indicated that hearsay evidence is not substantial evidence. Unless the Secretary is allowed to appeal from this order, he will never be able to reach the questions involved, because on the next appeal, if there is one, the sole question may be the substantiality of the evidence, and not its admissibility. This seems to us to fit the rationale of the decision in Cohen v. Beneficial Industrial Loan Corp., supra, where the court said:

This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole
412 F.2d 49
case is adjudicated. The Court has long given this provision of the statute this practical rather than a technical construction. * * *. Id. at 546, 69 S.Ct. at 1225.

Accordingly, we conclude that the case is an appealable one, and we deny the motion of appellee (claimant) to dismiss the appeal.

We next consider the question of whether or not hearsay evidence, when objected to, is admissible in an administrative hearing, such as the hearing in this case. The claimant contends that the admission of hearsay evidence denies him the right to be confronted by his adversary witnesses and the right of cross-examination. We must look first to the statute enacted by Congress governing this problem. We find that 42 U.S.C. § 405(a) and (b) provides:

(a) The Secretary shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations 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 hereunder.
(b) Evidence may be received at any hearing before the Secretary even though inadmissible under rules of evidence
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68 practice notes
  • Myers v. Sullivan, Nos. 89-3533
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 6, 1990
    ...1376, 1378 (5th Cir.1973) (using this justification to allow interlocutory appeal of district court's remand order); Cohen v. Perales, 412 F.2d 44 (5th Cir.1969), rev'd on other grounds sub nom., Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) The power of the sugg......
  • Bachowski v. Usery, No. 76-1802
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 3, 1976
    ...Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); In re Grand Jury Proceedings, 525 F.2d 151, 155 (3d Cir. 1975). 16 412 F.2d 44 (5th Cir. 1969), rev'd on other grounds sub nom., Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). See also Wells v. S......
  • U.S. v. Alcon Laboratories, Nos. 80-1188
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 24, 1981
    ...prove availability of reasonable job opportunities by testimony of vocational expert who had not interviewed claimant); Cohen v. Perales, 412 F.2d 44 (5th Cir. Page 885 1969), rev'd on other grounds sub nom. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (allowing......
  • Richardson v. Perales, No. 108
    • United States
    • United States Supreme Court
    • May 3, 1971
    ...opposing testimony by the claimant and his medical witness; and procedure followed under Act does not violate due process requirements. 412 F.2d 44 and 416 F.2d 1250, reversed and remanded. Daniel M. Friedman, Washington, D.C., for petitioner. Richard Tinsman, San Antonio, Tex., for respond......
  • Request a trial to view additional results
68 cases
  • Myers v. Sullivan, Nos. 89-3533
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 6, 1990
    ...1376, 1378 (5th Cir.1973) (using this justification to allow interlocutory appeal of district court's remand order); Cohen v. Perales, 412 F.2d 44 (5th Cir.1969), rev'd on other grounds sub nom., Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) The power of the sugg......
  • Bachowski v. Usery, No. 76-1802
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 3, 1976
    ...Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); In re Grand Jury Proceedings, 525 F.2d 151, 155 (3d Cir. 1975). 16 412 F.2d 44 (5th Cir. 1969), rev'd on other grounds sub nom., Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). See also Wells v. S......
  • U.S. v. Alcon Laboratories, Nos. 80-1188
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 24, 1981
    ...prove availability of reasonable job opportunities by testimony of vocational expert who had not interviewed claimant); Cohen v. Perales, 412 F.2d 44 (5th Cir. Page 885 1969), rev'd on other grounds sub nom. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (allowing......
  • Richardson v. Perales, No. 108
    • United States
    • United States Supreme Court
    • May 3, 1971
    ...opposing testimony by the claimant and his medical witness; and procedure followed under Act does not violate due process requirements. 412 F.2d 44 and 416 F.2d 1250, reversed and remanded. Daniel M. Friedman, Washington, D.C., for petitioner. Richard Tinsman, San Antonio, Tex., for respond......
  • Request a trial to view additional results

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