Sellars v. SECRETARY, DEPT. OF HEALTH, EDUCATION & WELF.

• Citation: 458 F.2d 984
• Decision Date: 17 April 1972
• Docket Number: No. 71-1535.,71-1535.
• Parties: Pansy SELLARS, Appellant, v. SECRETARY, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

458 F.2d 984 (1972)

Pansy SELLARS, Appellant, v. SECRETARY, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, Appellee.

No. 71-1535.

United States Court of Appeals, Eighth Circuit.

Submitted April 10, 1972.

Decided April 17, 1972.

John W. Reid, II, Fredericktown, Mo., for appellant.

Eloise E. Davies, Dept. of Justice, Washington, D. C., L. Patrick Gray, III, Asst. Atty. Gen., Daniel Bartlett, Jr., U. S. Atty., Kathryn H. Baldwin, Atty., Dept. of Justice, Washington, D. C., for appellee.

Before Mr. Justice CLARK,^* and VOGEL and LAY, Circuit Judges.

PER CURIAM.

This is an appeal by the claimant Pansy Sellars from a denial of a claim for disability insurance benefits under the provisions of Sections 216(i) and 223 of the Social Security Act as amended. 42 U.S.C. §§ 416(i) and 423. After the application was initially disallowed, a request for hearing was filed and testimony taken on February 11, 1970, at Poplar Bluff, Missouri. The hearing examiner found that the claimant's evidence failed to establish the existence of any disability that would prevent claimant from engaging in substantial gainful activity at her customary occupation for a continuous period of twelve months at any time in the period in question. It is undisputed that the claimant last met the special earnings requirement of the Social Security Act on September 30, 1967. The sole issue, as stated by the examiner, is whether or not the claimant was disabled under the Act prior to September 30, 1967. Claimant alleged that she had been unable to work since June 16, 1965, because of "scirrhous adenocarcinoma, mastectomy" (amputation of the right breast due to a hard malignant tumor).

Upon denial of benefits by the examiner and affirmance by the Appeals Council of the examiner's adverse decision, the claimant filed an action in the United States District Court for the Eastern District of Missouri. The district court, 331 F.Supp. 1103, held there existed substantial evidence on the record upon which the Secretary could reasonably find that the claimant had not sustained her burden of establishing that she was disabled before September 30, 1967. Judgment was entered against the claimant and this appeal followed. We reverse and remand with directions.

The Secretary of Health, Education and Welfare has adopted regulations governing procedures for holding hearings on a claim of disability:

"The hearing examiner shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. . . . The procedure at the hearing generally . . . shall be in the discretion of the hearing examiner and of such nature as to afford the parties a reasonable opportunity for a fair hearing." 20 CFR § 404.927. (Emphasis ours.)

The essence of the examiner's duty under the Act, as required by this regulation, is that he fully and fairly develop the facts. See Richardson v. Perales, 402 U.S. 389, 410, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

In the instant case claimant appeared without counsel, and although the hearing examiner was fully informed as to the issue before him, to-wit, that the evidence must establish that the claimant was under a disability (as defined in the Act) beginning on or before September 30, 1967, for entitlement of Social Security benefits, he failed to fully develop the facts concerning this issue. In conducting the examination of the claimant the examiner did not at any time inquire of the claimant as to her disability prior to September 30, 1967. His interrogation of the claimant centered around the following question: "Let me ask you this: Right now, what do you notice about yourself? What's bothering you?" Claimant was not questioned as to her condition during the period of coverage.

The evidence showed that the claimant's physician who treated her for the 1965 operation was deceased. The medical testimony the claimant offered related to two...