Cook v. Celebrezze

• Decision Date: 22 March 1963
• Docket Number: No. 1723.,1723.
• Citation: 217 F. Supp. 366
• Parties: William H. COOK, Plaintiff, v. Anthony J. CELEBREZZE, Secretary of Health, Education, and Welfare, Defendant.
• Court: U.S. District Court — Western District of Missouri

217 F. Supp. 366

William H. COOK, Plaintiff, v. Anthony J. CELEBREZZE, Secretary of Health, Education, and Welfare, Defendant.

No. 1723.

United States District Court W. D. Missouri, Southwestern Division.

March 22, 1963.

Rex Titus, Joplin, Mo., James M. Tatum, Pineville, Mo., for plaintiff.

F. Russell Millin, U. S. Atty., William A. Kitchen, Asst. U. S. Atty., Kansas City, Mo., for defendant.

BECKER, District Judge.

In this cause plaintiff, William H. Cook, seeks review of a final decision of the defendant denying his application to establish a period of disability and for disability insurance benefits. Jurisdiction to hear this action is provided by § 405(g), Title 42, U.S.C.A. The application denied by the defendant was for the disability insurance benefits provided by § 423, Title 42, U.S.C.A. The nature and extent of the disability required to be established to secure the benefits is defined in § 416(i) (1) and in § 423(c) (2), Title 42, U.S.C.A.

As one of the bases for his claim of disability, the plaintiff relied upon a condition described as epilepsy, petit mal. His claim in this regard was supported by the professional opinion of Dr. Walton Forest Dutton, M.D., who stated that the plaintiff had been on his service for three years, "suffering from Petit mal epilepsy," and further indicated that in his opinion this condition was totally disabling. Exhibit 21, transcript, page 88.

The hearing examiner made a finding contrary to this medical evidence, relying chiefly upon an electroencephalographic report from the Veterans Administration Hospital, Kansas City, Missouri, the significance of which was not evaluated by a qualified medical expert. Exhibit 5, transcript page 59, l. c. 61. The examiner stated:

"A normal encephalogram, the only specific laboratory evidence in the whole record, discounts and negates the existence of any cerebral lesion characteristic of any kind of epilepsy and the claimant's own testimony when questioned at the hearing to describe these so-called blackouts, i. e., that he gets dizzy, finds a dark place, passes out, vomits and has headaches, is entirely uncharacteristic of epilepsy in which there are varying kinds of momentary seizures and accompanying rigidity during which the sufferer is incapable of any conscious movement or arrangement with a total lack of awareness after the seizure has passed." Transcript page 14.

In this manner the hearing examiner, who is not shown to be a medical specialist, without the benefit of any opinion evidence from a qualified medical expert, has reached conclusions both with regard to the medical significance of a normal electroencephalographic report and the plaintiff's alleged symptoms, which no one but a qualified medical expert would be qualified to express. If the examiner's opinion is founded on special study, reading or consultation not shown in the record, the hearing examiner has made use of extra-record information, not a matter of common knowledge, from unspecified sources. The plaintiff has been given no opportunity to rebut this evidence. Administrative agents and agencies are not privileged to take judicial notice of evidentiary material which is not a matter of common knowledge. To do so denies to the affected party "the fundamentals of a trial," in the words of Mr. Justice Cardozo, speaking for a unanimous Court, in Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 784, 81 L.Ed. 1093, loc. cit. 1099. The practice of noticing evidentiary material after the case has been submitted amounts to a "pretext for dispensing with the trial." Ohio Bell Telephone Co., supra. Glendenning v. Ribicoff (W.D. Mo.) 213 F.Supp. 301.

In an administrative hearing where the facts, as in the case at bar, are (1) adjudicative, (2) disputed and (3) critical, nothing less than submission through evidence, subject to cross examination and rebuttal, will normally suffice. 2 Davis, Administrative Law Treatise § 15.10, p. 403.

Furthermore, the Administrative Procedure Act expressly provides the following:

"Where any agency decision rests on official notice of a material fact not appearing in the evidence in the record, any party shall on timely request be afforded an opportunity to show the contrary." § 1006(d), Title 5, U.S.C.A.

The practice of judicially noticing medical "facts" after the reception of evidence is closed is inconsistent with this provision of the statute.

If the hearing examiner did not base his finding upon extra-record information, his finding is without any substantial support in the record. In this connection it should be noted that in the record no medical authority concluded in a final diagnosis that the plaintiff was able to engage in substantially gainful employment or activity. This...