Among the questions considered was the propriety of using physicians' written reports generated from medical examinations of a disability claimant, and whether these could constitute "substantial evidence" supportive of finding nondisability under the Social Security Act.

Do written reports by physicians who have examined a claimant for disability benefits under the Social Security Act constitute “substantial evidence”?

Does the failure of the claimant to exercise subpoena power, and call hostile witnesses for cross examination at a hearing constitute a violation of due process requirements?

Are federal administrative law judges allowed to seek opinion evidence, or case advisement from neutral observers whom they hire, without the permission of the claimant?

Are Social Security disability benefits an entitlement subject to the due process protections of the Fourteenth Amendment of the United States Constitution, as delineated in Goldberg v. Kelly?

Written reports submitted by physicians in the treatment and evaluation of patients are admissible, and should be considered substantial evidence in disability hearings under the Social Security Act, even though by their nature, they are ‘hearsay.” 2.)

Social Security disability is different from welfare entitlements and does not require the same level of due process protections under the Fourteenth Amendment of the United States Constitution as the court delineated in Goldberg v. Kelly[2] 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.

The report set forth no physical findings or laboratory studies, but the doctor again gave as his diagnosis: "Back sprain - lumbo-sacral spine," this time "moderately severe," with "Ruptured disk not ruled out."

[13][14][15][16][17] The claimant then made a request for review by the Appeals Council and submitted as supplemental evidence a judgment dated June 2, 1967, in Perales' favor against an insurance company for workmen's compensation benefits.

[20] On rehearing, the Court of Appeals observed that it did not mean by its opinion that uncorroborated hearsay could never be substantial evidence supportive of a hearing examiner's decision adverse to a claimant.

We have, on the one hand, an absence of objective findings, an expressed suspicion of only functional complaints, of malingering, and of the patient's unwillingness to do anything about remedying an unprovable situation.

This, we think, is as it should be, for this administrative procedure, and these hearings, should be understandable to the layman claimant, should not necessarily be stiff and comfortable only for the trained attorney, and should [27] be liberal and not strict in tone and operation.

The National Labor Relations Act, 10 (e), in its original form, provided that the NLRB's findings of fact "if supported by evidence, shall be conclusive."

[29][30][31] It is acceptable that the propositions advanced by the claimant, some of them long established, that procedural due process is applicable to the adjudicative administrative proceeding involving "the differing rules of fair play, which through the years, have become associated with differing types of proceedings," [32] that "the `right' to Social Security benefits is in one sense `earned,'" [33] and that the "extent to which procedural due process must be afforded the recipient is influenced by the extent to [34] which he may be `condemned to suffer grievous loss' .

`consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.'"

[35] The question, then, is as to what procedural due process requires with respect to examining physicians' reports in a social security disability claim hearing.

We cannot, and do not, ascribe bias to the work of these independent physicians, or any interest on their part in the outcome of the administrative proceeding beyond the professional curiosity a dedicated medical man possesses.

Dr. Lampert, the neurologist, provided the history related to him by the patient, Perales' complaints, the physical examination and neurologic tests, and his professional impressions and recommendations.

A specialist in neurosurgery, one in neurology, one in psychiatry, one in orthopedics, and one in physical medicine and rehabilitation add up to definitive opinion in five medical specialties, all somewhat related, but different in their emphases.

Notable is Judge Parker's well-known ruling in the Warrisk Insurance case of Long v. United States[40] which deserves quotation here, but which, because of its length, we do not reproduce.

The courts have reviewed administrative determinations, and upheld many adverse ones, where the only supporting evidence has been reports of this kind, buttressed sometimes, but often not, by testimony of a medical adviser such as Dr. Leavitt.

This is what Chief Judge Brown has described as "[t]he sheer magnitude of that administrative burden," and the resulting necessity for written reports without "elaboration through the traditional facility of oral testimony."

Perales relies heavily on the Court's holding and statements in Goldberg v. Kelly, supra, particularly the comment that due process requires notice "and an effective opportunity to defend by confronting any adverse witnesses .

Although the reports are hearsay in the technical sense, because their content is not produced live before the hearing examiner, we feel that the claimant and the Court of Appeals read too much into the single sentence from Consolidated Edison.

He says that the hearing examiner has the responsibility for gathering the evidence and "to make the [402 U.S. 389, 409] Government's case as strong as possible"; that naturally he leans toward a decision in favor of the evidence he has gathered; that justice must satisfy the appearance of justice, citing Offutt v. United States [55] and In re Murchison:[56] and that an "independent hearing examiner such as in the" Longshoremen's and Harbor Workers' Compensation Act should be provided.

The 44.2% reversal rate for all federal disability hearings in cases where the state agency does not grant benefits [60] attests to the fairness of the system and refutes the implication of impropriety.

It is for the District Court now to determine whether the Secretary's findings, in the light of all material proffered and admissible, are supported by "substantial evidence" within the command of 205 (g).

Presiding officers will have to make the necessary initial determination whether the cross-examination is pressed to unreasonable lengths by a party or whether it is required for the `full and true disclosure of the facts' stated in the provision.

The hearsay nature of medical records does not preclude their use in determining the disability status of a claimant in a social security case.

The practice of hiring doctors by HEW and Social Security to render unfavorable opinions toward claimants, without ever examining them, was condemned by the Court.