Richardson v. Perales, No. 108

CourtUnited States Supreme Court
Writing for the CourtBLACKMUN
Citation28 L.Ed.2d 842,402 U.S. 389,91 S.Ct. 1420
PartiesElliott L. RICHARDSON, Secretary of Health, Education and Welfare, Petitioner, v. Pedro PERALES
Docket NumberNo. 108
Decision Date03 May 1971

Written reports by physicians who have examined claimant for disability insurance benefits under Social Security Act constitute 'substantial evidence' supporting a nondisability finding within the standard of § 205(g) of the Act, notwithstanding the reports' hearsay character, the absence of cross-examination (through claimant's failure to exercise his subpoena rights), and the directly 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 respondent.

Mr. Justice BLACKMUN delivered the opinion of the Court.

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 * * *.'1 Section 205(g), 42 U.S.C. § 405(g), relating to judicial review, states, 'The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *.'

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.


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. When this provided no relief, myelography was performed and surgery for a possible protruded intervertebral disc at L—5 was advised. The patient at first hesitated about surgery and appeared to improve. On recurrence of pain, however, he consented to the recommended procedure. Dr. Munslow operated on November 23. The surgical note is in the margin.2 No disc protrusion or other definitive pathology was identified at surgery. The post-operative diagnosis was: 'Nerve root compression syndrome, left.' The patient was discharged from Dr. Munslow's care on January 25, 1966, with a final diagnosis of 'Neuritis, lumbar, mild.'

Mr. Perales continued to complain, but Dr. Munslow and Dr. Morris H. Lampert, a neurologist called in consultation, were still unable to find any objective neurological explanation for his complaints. Dr. Munslow advised that he return to work.

In April 1966 Perales consulted Dr. Max Morales, Jr., a general practitioner of San Antonio. Dr. Morales hospitalized the patient from April 15 to May 2. his final discharge diagnosis was: 'Back sprain, lumbo-sacral spine.'

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—lumbosacral 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. The doctor referred to Perales' being 'on crutches or cane' since his injury. He noted a slightly edematous condition in the legs, attributed to 'inactivity and sitting around'; slight tenderness in some of the muscles of the dorsal spine, thought to be due to poor posture; and 'a very mild sprain (of those muscles) which would resolve were he actually to get a little exercise and move.' Apart from this, and from the residuals of the pantopaque myelography and hemilaminectomy, Dr. Langston found no abnormalities of the lumbar spine. Otherwise, he described Perales as a 'big physical healthy specimen * * * obviously holding back and limiting all of his motions, intentionally. * * * His upper extremities, though they are completely uninvolved by his injury, he holds very rigidly as though he were semi-paralyzed. His reach and grasp are very limited but intentionally so. * * * Neurological examination is entirely normal to detailed sensory examination with pinwheel, vibratory sensations, and light touch. Reflexes are very active and there is no atrophy anywhere.' The orthopedist's summarization, impression, and prognosis are in the margin.3

The state agency denied the claim. Perales requested reconsideration. Dr. Morales submitted a further report to the agency and an opinion to the claimant's attorney. This outlined the surgery and hospitalizations and his own conservative and continuing treatment of the patient, the medicines prescribed, the administration of ultrasound therapy, and the patient's constant complaints. The doctor concluded that the patient had not made a complete recovery from his surgery that he was not malingering, that his injury was permanent, and that he was totally and permanently disabled.4 He recommended against any further surgery.

The state agency then arranged for an examination by Dr. James M. Bailey, a board-certified psychiatrist with a sub-specialty in neurology. Dr. Bailey's report to the agency on August 30, 1966, concluded with the following diagnosis:

'Paranoid personality, manifested by hostility, feelings of persecution and long history of strained interpersonal relationships.

'I do not feel that this patient has a separate psychiatric illness at this time. It appears that his personality is conducive to anger, frustrations, etc.'

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. The agency then referred the claimant to Dr. Langston and to Dr. Richard H. Mattson for electromyography studies. Dr. Mattson's notes referred to 'some chronic or past disturbance of function in the nerve supply' to the left and right anterior tibialis muscles and right extensor digitorium brevis muscles that was 'strongly suggestive of lack of maximal effort' and was 'the kind of finding that is typically associated with a functional or psychogenic component to weakness.' There was no evidence of 'any active process effecting (sic) the nerves at present.' Dr. Langston advised the agency that Dr. Mattson's finding of 'very poor effort' verified what Dr. Langston had found on the earlier physical examination.

The requested hearing was set for January 12, 1967, in San Antonio. Written notice thereof was given 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.

The hearing took place at the time designated. A supplemental hearing was held March 31. The claimant appeared at the first hearing with his attorney and with Dr. Morales. The attorney formally objected to the introduction of the several reports of Drs. Langston, Bailey, Mattson, and Lampert, and of the hospital records. Various grounds of objection were asserted, including hearsay, absence of an opportunity for cross-examination, absence of proof the physicians were licensed to practice in Texas, failure to demonstrate that the hospital records were proved under the Business Records Act, and the conclusory nature of the reports. These objections were overruled and the reports and hospital records were introduced. The reports of Dr. Morales and of Dr. Munslow were then submitted by the claimant's counsel and admitted.

At the two hearings oral testimony was submitted by claimant Perales, by Dr. Morales, by a former fellow 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 University 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.

The hearing examiner, in reliance upon the several medical reports and the testimony of Dr. Leavitt, observed in his written decision, 'There is objective medical evidence of impairment which the heavy...

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