Cohen v. Perales

Decision Date10 October 1969
Docket NumberNo. 26238.,26238.
Citation416 F.2d 1250
PartiesWilbur J. COHEN, Secretary of Health, Education and Welfare, Appellant, v. Pedro PERALES, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

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., 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.*



Attorneys representing the administrative Law Section of the American Bar Association have filed an Amicus Curiae Brief in this case in which they urge the court to modify its opinion so as to hold that the Administrative Procedure Act applies to and governs hearings on disability claims under social security legislation, and especially with respect to the right to cross-examination.1 We have carefully considered this brief, but have concluded that our decision in our original opinion is correct in this regard.

The Secretary of HEW has filed a Petition for Rehearing and a Suggestion of Rehearing En Banc. He has apparently misconstrued our opinion because the main thrust of his Petition for Rehearing is to the effect that under our decision uncorroborated hearsay evidence could never be substantial evidence that would support a decision of a hearing examiner adverse to a claimant in a social security disability case. Because of this erroneous interpretation of our opinion, the Secretary raises the spectre of a large increase in the number of cases of this kind that would have to be litigated in Court because of our opinion. He intimates that our decision would require medical witnesses of the HEW as well as those of the claimant to always testify in person at the hearing. All of these positions are unfounded.

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 testify in person before the examiner, as was done in the case at bar. This is especially true if the claimant requests that the absent medical witnesses of the HEW who authored the hearsay evidence, be subpoenaed to testify at the hearing and the examiner fails or refuses to summon them.

When these conditions are not present, there is nothing to prevent an examiner from basing his...

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17 cases
  • Richardson v. Perales
    • United States
    • U.S. Supreme Court
    • 3 Mayo 1971 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 Daniel M. Friedman, Washington, D.C., for petitioner. Richard Tinsman, San Antonio, Tex., for respondent. Mr. Justice BLACKMUN del......
  • Brands v. Sheldon Community School
    • United States
    • U.S. District Court — Northern District of Iowa
    • 18 Febrero 1987
    ...(5th Cir.1976). Absent direct contradictory evidence, hearsay could be relied upon. Broward County, 525 F.2d at 907; Cohen v. Perales, 416 F.2d 1250, 1251 (5th Cir.1969), rev'd on other grounds, Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). These standards apply......
  • Daviess County Hosp. v. Bowen
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 20 Enero 1987
    ...Corp., 337 U.S. 541, 547, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949). See also Cohen v. Perales, 412 F.2d 44, 48-49, on rehearing, 416 F.2d 1250 (5th Cir.1969), rev'd on other grounds, Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). As the Supreme Court observed in......
  • Jacobowitz v. United States
    • United States
    • U.S. Claims Court
    • 15 Julio 1970
    ... ... Fleming, 169 F.Supp. 240 (W.D.Pa.1958); United States v. Krumsiek, 111 F.2d 74, 78 (1st Cir. 1940); Cohen v. Perales, 412 F.2d 44, rehearing denied, 416 F.2d 1250 (5 Cir. 1969); 32A C.J.S. Evidence § 1016 (1964); NLRB v. Amalgamated Meat Cutters, 202 ... ...
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