RICHARDSON v. PERALES

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Argument of Friedman

Chief Justice Warren E. Burger: We’ll hear arguments next in Number 108, Richardson against Perales.

Mr . Friedman.

Mr. Friedman: Mr. Chief Justice and may it please the Court.

This case here on the writ of certiorari to the Fifth Circuit presents an important question as to the evidence that maybe utilized by the Secretary of Health Education and Welfare in disability proceedings under the Social Security Act.

Specifically, the question is the correctness of a ruling by the Court of Appeals that written reports made by doctors found the examination of the patient which reflect the results of the examination and the doctor’s analysis and conclusions based upon that examination cannot constitute substantial evidence to support a determination of disability if, one, at the hearing before the social security authorities, the claimant objects to the introduction of this evidence.

And two, if these written doctor’s reports are contradicted by oral testimony given at the hearing by the claimant and the claimant’s doctor.

The Government has brought this case to this Court because of the serious adverse impact, it believes this rule announced by the Court of Appeals will have upon the operation of the entire social security disability program.

There's a tremendous number of these administrative hearings conducted each year in disability cases.

Last year, our figure showed that 27,000 of these hearings were held.

The hearings are conducted quite informally, they are not adversary in characters, we know the term and the examiner who presides is not an advocate of one position or the other.

He attempts to develop all the facts, both those indicating disability and both -- and those questioning disability.

Now, for as long as this program has been in effect for at least 15-years, traditionally these cases have been determined on the basis of medical reports, written reports --

Justice Potter Stewart: Mr. Friedman, how does it all start?

Someone has claimed disability?

Mr. Friedman: Yes, let me just --

Justice Potter Stewart: What's the disability?

Mr. Friedman: Well let me start by explaining what happened perhaps in this case.

This man filed a claim for disability in April 1966, in which he claimed that he had become disabled in September of 1965 as a result of a back injury.

Before he had actually filed his claim, he had undergone some treatment which had been unsuccessful.

And when he flied his claim, under the procedures of statutory procedures, the claim was referred by the social security agency to the state agency that handles disability problems.

In this case the Texas Agency and under the statute, the statute authorizes the secretary to enter into agreements with state agencies to handle, to process these claims originally.

The state agency then --

Justice Potter Stewart: And in the procedures by which they’re handled differed depending upon the state?

Mr. Friedman: Well, they may vary some but the basic procedure I think is the same which is the state agency makes whatever examinations are necessary at -- the Federal Government pays for these but it sends the man out for medical examinations.

In this case, there were a series of examinations by four different doctors.

First, they sent the man to an orthopedic surgeon who conducted various tests.

Then they sent him to a neurologist, following that they also had -- I might mention before this.

They also attached to his applications were various reports from his doctors who had indicated the problems they saw.

And at an early stage -- at an earlier stage before he filed his claim, he had undergone surgery, something called a laminectomy for this pain he had at his lower back.

Justice Harry A. Blackmun: Would you explain there a little bit, he did have surgery?

Mr. Friedman: Yes, may I give the chronology of what happened to him?

Justice Harry A. Blackmun: And was he -- was there any curative effect as a result of the laminectomy?

Mr. Friedman: Apparently not, apparently not.

He was twice hospitalized by the orthopedic surgeon then the laminectomy was performed and following this, he went from seeing the orthopedic surgeon he consulted.

His family -- a family doctor, Dr. Morales who undertook the treatment.

Justice Harry A. Blackmun: Do you know whether the surgery was performed by an orthopedist or a neurosurgeon or by both?

Does the record show this, I --

Mr. Friedman: I believe he was a neurosurgeon.

It's a doctor --

Justice Harry A. Blackmun: And I take if they found pathology but no -- no relief?

Mr. Friedman: Well they didn’t find much they thought, and this is one of the points.

They found some pressure and they did prescribed certain procedures but they did not find any specific neurological involvement of the kind that they believe would cause this pain.

Before the operation, before the operation the neurologist Dr. Munslow believed there was some problem with the disc but apparently the laminectomy did not disclose that fact.

Justice Harry A. Blackmun: Well did the preoperative diagnosis (Inaudible)?

Mr. Friedman: Well there was enough there apparently to suggest that they performed two myelograms before the surgery and the first one is not on the record.

The second one suggested some disc involvement but apparently after the surgery was performed, they did not find anything which indicated the disc involvement.

And after that, the man put himself under the care of Dr. Morales.

A family doctor who treated him more conservatively with such things as he gave him some x-ray, not x-ray DP therapy.

He gave him drugs, he gave him pain killers, some minor, slight exercise and so but none of these conditions.

These treatment apparently alleviated his pain.

So, if I may just go back a minute to what happened in the case after the state agency has examined the man.

The state agency then initially at least decided that he was not disabled.

And subsequent to that, he then said he wished to appeal this to the social security administration after the state agency makes the initial determination which they’re permitted to do under the stature of the cases.

Then goes back to the bureau of old age and disability insurance of the social security administration which makes this --

Justice Harry A. Blackmun: What would’ve stopped him if the state agency found that indeed he was disabled, would that be the end of the case so far as so is this?

Mr. Friedman: Probably, probably and mostly I think in almost every instance where the state agency finds the man is disabled social security administration --

Justice Harry A. Blackmun: I view, they found he was not.

Mr. Friedman: He was not.

Justice Harry A. Blackmun: Then what's the procedure after that?

Mr. Friedman: Well then at this point he then goes to the social security administration and they wrote him a letter which is pretty much a form letter saying that the examination has been conducted and you’re found not disabled.

And then I said you have certain period within which to apply for reconsideration and he applied for reconsideration.

And after he’d applied for reconsideration --

Justice Harry A. Blackmun: Reconsideration by whom?

Mr. Friedman: By the social security administration by the Bureau of Disability and --

Justice Harry A. Blackmun: The state agency is now out?

Mr. Friedman: The state agency is out.

But following that, following that and before --well and then what happened is reconsideration was denied and then he was totally had the right to request a hearing and he requested a hearing.

Now between that period and before the hearing, he underwent a further examination.

This was something called an electromyographic study which is the counterpart of the electrocardiogram.

Justice Harry A. Blackmun: Done at whose instance?

Mr. Friedman: Pardon?

Justice Harry A. Blackmun: Done at whose instance?

Mr. Friedman: This was done at the instance of the social security people and probably, this examination was conduced and then he had a hearing as he had requested.

Now at the hearing he was represented by counsel and over his objection there were admitted the six doctors reports which reflected the tests that had been made by these doctors during the series of examination.

Justice Harry A. Blackmun: Both the state agency and whoever it was that made this last --

Mr. Friedman: Well the examinations were made not by -- let me make this clear.

They were not made by the state agency; they were all made by independent consultants and specialists --

Justice Harry A. Blackmun: Retained by whom, that’s what I'm asking.

Mr. Friedman: Well they were referred by the state agency.

They were referred by the state agency except I believe for the electromyographic study but paid for by the Federal Government.

Now at the hearing, testimony was presented by the respondent Mr. Perales by Mr. Perales’s family doctor, Dr. Morales who had conducted this conservative treatment over a period of seven months by a fellow employee of his, by a vocational advisor who testified as to what jobs he could perform and by a man that the examiner had called who was known as the medical adviser.

Now, the practice in these cases is that where you get a difficult case, where the examiner feels that the case presents medical problems that are somewhat beyond his comprehension, he has the discretion to call a medical adviser to advise him.

It's up to the examiner to decide whether or not to call the medical adviser and medical advisers are called in roughly one out of seven cases.

The medical adviser in this case was called by the examiner at the second session of the hearing.

First session was held, he had the reports, heard the testimony and decided he needed some assistance.

The medical adviser was a Dr. Leavitt who was the chairman of the Department of Physical Medicine at Baylor University Medical School who was also the chief of staff at several hospitals and a consultant to the VA.

And Dr. Leavitt was sworn as a witness, Dr. Leavitt was cross examined by respondent’s counsel and Dr. Leavitt explained to the examiner what these various reports were, what the tests were in one case and explaining the consequences of the electromyographic study.

He used the blackboard and drew the different lines and graphs to show precisely what the effect is.

Justice Harry A. Blackmun: Was he the proponent of any position?

Mr. Friedman: No he is not the proponent of anyone, he is an object -- he tries to give objective.

He gives objective testimony, he interprets, and he interprets for the record, for the examiner what the medical evidence is.

Justice Potter Stewart: He’s paid -- He’s paid by the Government?

Mr. Friedman: He is paid by the government or rather --

Justice Potter Stewart: Get it per dime or --

Mr. Friedman: No it's a rather I think for a qualified medical -- he gets a $125.00 for appearing as the medical expert.

That includes studying the papers before the hearing and testifying for as long as he has to testify.

Justice Potter Stewart: For $25.00 a day --

Mr. Friedman: $125.00 for the case, that’s all --

Justice Potter Stewart: As long as the case goes on.

Mr. Friedman: Cases ordinarily do not go -- this case of course there were two days of hearings but he only attend one.

Normally these hearings just take up a couple of hours, a few hours at most.

Justice Potter Stewart: And he’s a member of a panel that has been sort of volunteers in response to request for volunteers?

Mr. Friedman: That is correct, they have in each city, panels of different experts and in this case the record shows that the examiner did not select the particular expert.

The examiner asked his assistance, someone called a hearing assistant to select a doctor from a doctor from a panel in this area to appear some medical advice.

They obviously got some in familiar with physical problems in orthopedic.

Justice Potter Stewart: How often would anyone medical advisor do this job over the course of the year?

Mr. Friedman: It varies, again it depends on -- might several times a year, it might be just once or twice.

Again it would depend on I presume on how many cases involving the particulate type of condition arose in the --

Justice Potter Stewart: In which he is a specialist.

Mr. Friedman: In which she is a specialist arose in the particular locality and also depending on the examiner.

Some examiners might feel the particular medical problems presented a case that they could handle without a medical adviser.

Others might not feel that confident and might want the medical adviser.

Justice Potter Stewart: Was this particular doctor a specialist or a generalist?

Mr. Friedman: No, this doctor was a specialist in something called physical medicine and rehabilitation.

Justice Potter Stewart: That’s -- that’s not neurosurgery or neurology or orthopedics.

Mr. Friedman: That is right, but he said that he had --

Unknown Speaker: Does the record show he’s board certified in physical medicine?

Mr. Friedman: Oh yes, yes, yes it does and he just advised basically advised the examiner as to what the report showed and what the significance was.

Now, he concluded what he told -- the examiner’s conclusion was that these reports that had been presented and the evidence adduced at the hearing indicated that Mr. Perales had a low back syndrome of mild significance -- mild severance, excuse me, that’s what he said.

The examiner denied the claim, he said that on all the evidence, he concluded that that was basically what the man had was this low back syndrome of mild significance and also relying on certain statements made by the psychiatrist and neurologist that there was an emotional overlay to this illness and that neither of these factors individually are in combination constituted disability.

Then under the practice, Perales brought a suit in the District Court to set aside the determination.

I might say that those are further steps in the interim proceedings.

He sought review of the examiner’s decision by something called the appeals counsel and the appeals counsel upheld the examiner’s decision and under the statute, that then became the final decision of the statute.

Unknown Speaker: It appears counsel hear argument or it they hear the appeal on the record?

Mr. Friedman: In this case, they didn’t hear argument, there on occasions, they do hear argument but in most instances that it’s done on the record however briefs are sometimes filed.

I don’t believe that briefs were filed in this case.

The District Court said that the statements and the written reports of the medical advisers were not substantial evidence and that the testimony of the medical adviser was of little or no probative value.

And therefore the District Court remanded the case to the secretary to hold a new hearing before a different examiner.

He said that this examiner was out because -- the District Judge a month before this hearing had condemned the use of these medical reports and despite that this examiner had admitted them.

And so he said there had to be before a new hearing and the indication clearly was at the new hearing, only the doctor's testimony would be permitted, not the reports unless the parties agreed to it.

Now, the Fifth Circuit affirmed and what the Fifth Circuit said basically, I think four things.

First, the Fifth Circuit said that in view of a provision in the statute that the rules of evidence shall not be binding upon the secretary in these proceedings.

That the medical reports although hearsay were admissible.

That was the first thing the Court of Appeals said.

Secondly the Court of Appeals said that since under the regulations, a claimant has the right to request to subpoena witnesses and since Perales had never sought to subpoena the doctors, he could not complain that he was denied the right to cross examine the doctors because he hadn’t sought to attempt to do so.

Justice Potter Stewart: Is there an absolute right to subpoena Mr. Friedman?

Mr. Friedman: No it’s not an absolute right, the -- in effect you had to show good cause and the practice is that if a man can show some reason why it is necessary to call the doctor to the stand.

For example, he would say that you just can't tell on the basis of these tests alone what his condition is.

That the significance of the test depends upon the circumstances under which they were done, how long you lapsed etcetera.

But they will not permit, they will not permit into subpoena a doctor merely because he says he wants to cross examine them.

Justice Potter Stewart: But certainly, it's point was that he hadn't even tried.

Mr. Friedman: He hadn’t even tried and then they went on however and said that despite that, nevertheless because the doctor’s statements were uncorroborated hearsay, that could not constitute substantial evidence, where the claimant objected to the introduction of the reports and the reports were contradicted by the claimant’s testimony and by the doctor’s testimony.

The Court also said that it agreed that the medical adviser had properly been permitted to testify that once again, his testimony was properly admitted even though he said it was hearsay because it was built and turned on the reports.

But the Court then went on and criticized what it said was in view as the widespread practice of these medical advisers that called writing the circuit with the examiners for the purpose of reporting on the condition on the basis of the reports and so on.

And what the Court said is that this procedure should be frowned upon if not eliminated entirely.

Now, and that therefore affirmed the Districts Court’s decision.

I want to stress on that before getting into the discussion of the merits of the case.

That neither Court in this case has yet passed upon the question whether or not the secretary correctly held that Perales was not disabled.

All they have said was the evidence upon which the secretary based its decision was not substantial evidence.

We don’t know in this case, we don’t know in this case what the ultimate outcome will be and if the Court agrees with the Government.

That the Court of Appeals applied the wrong stand, all that we ask is the case be sent back to the District Court for the District Court now to review the substantiality of the evidence upon which the secretary based his determination.

I make this point because some of the amici in their briefs are complaining that this man wasn’t disabled and that on this evidence you have to conclude that he was not disabled because this test were basically unreliable.

That is an issue that has not been passed upon by either of the two lower courts.

Now I would like if I may just briefly to indicate the importance of the issue before coming to the discussion as to the question on the substantial evidence.

As I'd indicated earlier in my argument there are about 20,000 -- 27,000 last year of these hearings held annually and since the program has been in effect, they have always relied on these reports.

Now, the doctors have been very cooperative in these cases, they have been quite willing to examine the people.

Presumably knowing that it's only going to be in the unusual case when they will be asked to testify and the secretary has some information which we have set forth in our brief that if this rule obtains and if as the necessary result, there going to be have to be a great deal more testifying by the doctors and that a lot of doctors who have headed to, been willing to conduct these examinations are going to be very, very reluctant to do so because they know they examine a man and spend an hour or two making tests on him.

And so the end result of this maybe that several months later they will find themselves forced to attend a hearing at some distant place.

Perhaps have to sit for a whole day giving -- listening to the testimony, then giving their testimony.

Now not only will this make and this reluctance on the part of doctors to conduct these examinations would have two unfortunate consequences.

First, you make it more difficult for the secretary to determine this vast number of claims and secondly in the long run we think it would re-down to the detriment of the claimants themselves because the majority of these cases in which claims are made following these examinations, the claim is allowed and figures out roughly two thirds of all claims are allowed without ever going to hearing.

So that the claimants themselves might be handicapped if the doctors would generally unwilling and reluctant to conduct these examinations and finally we read in the papers all the time about the critical shortage of physicians in this country today.

I think 50,000 more are needed.

We have doctors working 50 and 60 hours a week.

They don’t have enough time to see patients and as I will now develop, I think -- we think these reports are thoroughly reliable and that really it would not be in the public interest that the doctors should spend a substantial portion of their time particularly, the specialist who are I presume, even in more critical short supply testifying at these hearings.

Now in the Social Security Act, Congress has provided a very flexible procedure for for the conduct of these things.

I might just mention one further point in passing, now that flexibility which has characterized these proceedings for many years would be substantially weakened we think, if everything had to be this formal.

If you had to have every time a doctor’s report was to be offered in evidence.

If he had to be called as a witness, whenever the claimant and the claimant’s doctor appeared and then normally of course, in every case, the claimant appears and I would assume this got to be the rule.

The normal practice would be that the claimant would always have his physician who would testify and then it would be necessary to call all of these doctors.

The statute gives the secretary authority to provide for the nature in extent of the proofs and evidence and the method for taking and furnishing such proof and evidence in disability cases.

And the secretary in turn of his regulations leave it to the examiner generally to determine the procedure at the hearings provided that the procedure will afford the parties a reasonable opportunity for a fair hearing.

And as I've indicated, the statute expressly says evidence maybe received even though inadmissible in the Court of law under traditional rules of evidence.

And of course finally, the secretary’s findings if they are supported by substantial evidence are stated by the statute to be conclusive.

Now, substantial evidence as this Court has said on many occasions that it's sufficient to support an administrative determination is evidence from which a reasonable mind might accept as adequate to support a conclusion.

Evidence as it stated otherwise, it has rational probative force.

And we think under this standard, these reports are sufficient to constitute substantial evidence and of course I won’t debate at the point but the nature of this statute, the kind of determination that the secretary makes means that it's to the secretary to decide these questions to evaluate the evidence to draw inferences.

These reports, it seems to us are the kind of thing that whether you characterize in this hearsay or non hearsay are of the highest probative value.

Let for a moment, let’s just look and see what these reports are.

The reports are made by highly skilled professionals in the performance of their usual duties.

This is what a doctor usually does, he examines patients.

This is the form in which normally a doctor reports the results of his examination and the results of his diagnosis.

He files a written report.

The reports reflect the standardized type of examination and medical tests that doctors traditionally employ in dealing with this kind of a problem.

Chief Justice Warren E. Burger: Would you say Mr. Friedman that they have the same hallmarks of reliability that the day-to-day recording and recordings by doctors and medical records have in hospital procedure which are admissible under the conventional rules?

Mr. Friedman: I would think so Mr. Chief Justice, I think, what I would say is that these technically, probably do not come within the business records exception because they are made in response to an individual request for consultation but they do have it seems to me, that’s the basic thing.

It's that kind of reliability and we've quoted in our brief a fine opinion by Judge Parker written almost 40 years ago in which he develops in considerable detail why report of this type is thoroughly reliable.

Justice Potter Stewart: May I ask Mr. Friedman, this number a year I suppose it's hard to answer this but do not those reports then really determine the basic issue of disability.

What purpose does the hearing serve?

Mr. Friedman: Well the hearings -- the hearing serve a number of purposes --

Justice Potter Stewart: Well let me put it this way, are there instances in which notwithstanding reports is unfavorable to the disability claim as these were as interpreted by the medical adviser?

How many cases nevertheless result the findings of disability?

Mr. Friedman: Oh we do find, we do have -- the statistic shows that roughly one third of all the cases that go to hearing result in findings of non disability.

We have a statistic in our brief for about two years ago there are roughly 20,000 hearings in that year and I think 6,900 of the cases resulted in awards to the claimant so that in one thirds of the cases --

Justice Potter Stewart: Not withstanding medical --

Mr. Friedman: Not withstanding because --

Justice Potter Stewart: Like this. --

Mr. Friedman: Like this, that’s a --

Justice Potter Stewart: Not unfavorable to the claim as he is apparently were?

Mr. Friedman: Well I don’t -- I can't say that there will be unfavorable reports because if on the basis of the reports, it was decided that the man was disabled that wouldn’t be a hearing.

The hearing is only held where there’s been an initial rejection, so in one third of the cases -- and the evidence for example, you may have situations in which the man brings in his own experts who explain and throw some doubt about these things.

Justice Potter Stewart: Like in this case?

Mr. Friedman: In this case the man, Mr. Justice was his family doctor and all that the family doctor said was that while he couldn’t disagree with basically with the reports that there seemed to be the something to matter with this man which in his view indicated he couldn’t work.

Now the examiner rejected that contention.

Justice Potter Stewart: Well I gather no matter how many experts he may bring in, who would testify that indeed there is disability.

Nevertheless, the Government’s position would be if the examiner finds there's not, these reports constitute substantial evidence.

Mr. Friedman: That is correct because we think under the statute, Congress is basically committed to the discretion of the secretary and to the examiner and the appeals counsel to evaluate the evidence to weigh it and to compare it.

Unknown Speaker: Just as though those doctors who wrote the report had come to testify it personally.

Mr. Friedman: Well, that’s right, that is correct Mr. Justice because we think that in the majority of cases.

The doctors if they had appeared would nearly in effect repeat what they had stated in their records.

And I think that is the point that Judge Parker made so effectively in his opinion.

Justice Potter Stewart: Well it’s a physical case where it goes to hearing where there’s been medical reports adverse to the claimant and yet an award of disability has been made, it must because the evidence that the plaintiff presents at the hearing.

Mr. Friedman: That is correct.

The claimant may -- if I'm --

Justice Potter Stewart: Which serves to override his reports.

Mr. Friedman: Yes.

If I may with the Court's permission, I just -- in preparation for this case attended the disability hearing last week and I just like to explain what happened at this hearing because I think this will illustrate it.

This was a man who had some pulmonary difficulties and the question was whether he in fact had tuberculosis and when he came to the hearing, he was very short of breath.

And this was noticed by the medical examiner and by the hearing examiner and they asked them about this and they asked him whether he walked up to the second floor or taken the elevator and how he had gotten there.

And during the medical adviser’s testimony, the medical adviser suggested to the examiner that in view of this shortness of breathe which apparently had not been reflected in the previous reports.

That he suggested appropriateness of performing some additional tests which the examiner indicated he would have the man undergo.

Now this it seems to me is the kind of thing that can be brought out at the hearing which may serve to overcome the doctor’s reports.

But as I -- and I say in roughly 1/3 of the cases this happens.

But our basic position is that if the triar of the fact is not convinced by this evidence.

If the triar of the fact just concludes on balance, the record is enough to warn a conclusion of non-disability.

He can make that determination even though the basis upon which he makes that determination, are these reports made by the doctors.

That’s our basic submission.

Justice Potter Stewart: And I suppose arguably that if the Government called doctors, their own doctors who would make these reports on every hearing it might be pure award of disability.

Mr. Friedman: There might -- there might be, well it's hard to say.

Justice Potter Stewart: Or there would be then personal confrontation between doctors I suppose?

Mr. Friedman: Which I think would be unfortunate certainly and -- but I also suggest that there might be fewer awards of disability for another reason Mr. Justice is the difficulty of getting the doctors to make the examinations.

Chief Justice Warren E. Burger: Now Mr. Friedman, you mentioned that there were 20,000 hearings last year and 6,900 favorable to the claimant after hearing.

Do you have any figure in this record as to how many grants in favor of the claimant were made without going to hearing?

Mr. Friedman: Yes, we have a figure on that.

It's rather rough, it's about 540 or 560,000, it's roughly two-thirds of all applications.

I can give you the figure in a moment, yes it's at note seven pages 18 of our brief and there were in the fiscal year 1968 515,000 disability cases were processed and of the 515,000 343,000 were allowed prior to hearings.

Then, out of the remaining 160,000 that were initially disallowed only 20,000 went to hearing.

The remaining 140,000 apparently the claimant didn’t wish to pursue it further then out of the 20,000 roughly one-third of those, that went to hearing resulted in awards to the claimants.

Chief Justice Warren E. Burger: These are the figures are all in one place on page 18, is that right, concentrated there?

Mr. Friedman: That’s right and these are all, I should say -- have to say that these are figures which have been supplied to us by the Department of Health Education whether they’re not shown by the record in this case.

Chief Justice Warren E. Burger: They’re public records?

Mr. Friedman: Pardon?

Chief Justice Warren E. Burger: They’re public records?

Mr. Friedman: Well, they are public records but they may have involved some calculations.

I'm sure they’re available.

I don’t know exactly where they are.

Justice Hugo L. Black: Do you have any idea, how those figures compare with the figures that would apply to private insurance companies, you have brought into court?

Mr. Friedman: No I don’t, I'm sorry.

Justice Potter Stewart: Mr. Friedman how often do you know that -- do you know does a claimant attempt to call the witness.

One of the doctors who has filed an adverse report, I take it that he has the right to call him, doesn’t he?

Mr. Friedman: He has the right to request that a subpoena be issued before him.

Unknown Speaker: And if he is still has to pay --

Mr. Friedman: The Government would pay whatever the usual witness needs are.

Unknown Speaker: And are doctors often called by the --

Mr. Friedman: I'm told that it's relatively rare.

The doctors generally are not called, I'm also told that what frequently happens as I've indicated, the procedures are quite informal.

And what sometimes happen is if the claimant indicates he would like to have a doctor and gives the reasons for it, without a formal subpoena being issued, the examiner has someone get in touch with the doctor and arranges for the doctor to appear.

Unknown Speaker: I think this claimant had the choice of either being faced with the written reports or calling the doctor himself.

Mr. Friedman: That’s right, he made no attempt to subpoena the doctor and under the regulations he can see, he can see the reports, -- at the hearing if no request is made, customarily these reports are all shown to the claimant in advance of the hearing or alternatively, he can examine the reports at the hearing examiners office.

Unknown Speaker: Mr. Friedman, I noticed that, I gather out of that 515,000 disability claim that 320,164 consultant examinations is that right?

Footnote 8 page 18.

Mr. Friedman: Well, the examinations -- that’s right.

There were that number of examinations, but of course that doesn’t mean that almost one for one comparison because you might have some claimants --

Unknown Speaker: No, it would appear that great many disability claims are allowed without a consultant.

Mr. Friedman: A substantial number are because you may have a case in which the man’s doctor just brings an evidence, the man is bedridden and has been bedridden for six months.

I mean that they wouldn’t press that anymore but --

Unknown Speaker: May I ask you one more question, is that if the claimant calls the doctor, is the Government required or is it likely to call the doctor to give testimony, if he’s there at hearing rather than to present his report?

Mr. Friedman: If the claimant wants the doctor?

Unknown Speaker: Yes, the claimant asks for a subpoena, the doctor is there at the hearing.

Mr. Friedman: Oh!

The doctor is subpoenaed you mean?

Unknown Speaker: Yes.

Mr. Friedman: Well I would assume that would they first present the report and then the doctor would testify about his report.

Unknown Speaker: The Government wouldn’t put him on.

Mr. Friedman: Well, the hearing examiner would call and when you say the Government would put him on, I mean I don’t want to – but any favor comes --

Unknown Speaker: This does not mean an adversary hearing.

Mr. Friedman: This is not precisely Mr. Justice.

This is not an adversary hearing, but it's not on the one side of the Government and on the other side, the claimant.

Thus the examiner presides informally, people sit around the table.

Chief Justice Warren E. Burger: Thank you Mr. Friedman.

Mr. Tinsman.

Argument of Richard Tinsman

Mr. Richard Tinsman: Mr. Chief Justice and may it please the Court.

The primary issue to be decided here is this limited one, where each side has directly contrary evidence on the crucial issue to be decided in this particular case.

Disability of the claimant and it's directly in conflict what procedure should be involved?

The one that the Fifth Circuit has mandated where the Government must bring in their doctors, their evidence or the one that has been followed in the past.

Now Mr. Justice Brennan indicated this is not an adversary procedure.

This is the position that has been taken by the Government but of it's very nature this is an adversary procedure because the Government on one hand has reports that say this man is not disabled.

The man says those reports are wrong, I am disabled and my doctor says I am disabled, so we really can't characterize this as not an adversary proceeding of its very nature.

It must be, because it is a disability hearing where there are two doctors, who are directly in conflict.

And the problem in social security hearings is there must be total and complete disability.

Not as in some programs as in veterans programs where there might be partial disability.

Now, we start out with a basic proposition that has been enunciated by this Court in numerous decisions that say they’re all cited by the Fifth Circuit.

One of them is Consolidated Edison versus to National Labor Relations Board that says uncorroborated hearsay does not constitute substantial evidence.

And then this Court has in many cases brought forward the proposition that the right of confrontation and cross examination even in administrative hearings is a basic right that a person has.

Justice Hugo L. Black: Is that the gist of your complaints about the hearsay?

Mr. Richard Tinsman: We actually have three points that I’d like to bring out Mr. Justice Black.

First is that -- and the most primary one which as the Fifth Circuit decided on is that these hearsay reports are not substantial evidence and they should not be allowed to be so.

The second point that we will make in the argument is this medical adviser situation where the man has never examined the man is improper.

And the third point that we will make and have made in our brief is that the whole procedure that is presently followed by social security violates due process and that the hearing examiner is both the Government’s attorney and then he becomes the judge and he is not an impartial fact finder as has been required by the Court in past situations.

I would like to first --

Justice Hugo L. Black: Could you argue that in suits again when the Government is consented to be sued?

Mr. Richard Tinsman: No, because, generally in the suits where the Government consented to be sued, we have an impartial fact finder and that’s the federal district judge.

Justice Hugo L. Black: That’s what this is.

Mr. Richard Tinsman: No sir Your Honor in the suits of Federal Court --

Justice Hugo L. Black: In to the suit against the Government?

Mr. Richard Tinsman: Yes sir but the hearing examiner must be the Government’s lawyer as well as the judge.

He first puts on the Government lawyer hat and then after he introduces the Government’s evidence, he rules on objections of the claimant’s attorney or the claimant, then he puts on his judge hat.

And it's difficult to determine where he stops being the Government’s lawyer who must assimilate all of this evidence and becomes the impartial fact finder.

In a federal tort claim case, of course, the judge does not assimilate the evidence.

Justice Hugo L. Black: Can you subject the Government to the same kind of constitution or rule where it can be consent to be a sued or not as it seems here, as you are a private company?

Mr. Richard Tinsman: Well Your Honor, all we are saying here is that we are entitled.

If we are entitled to make a claim as the Congress has held we are.

That we are entitled to have this before an impartial decision maker and this Court has previously held in immigration cases that we cite in our brief, that a man who garners all of the evidence for the Government and then comes in and says now that I've gathered the evidence, I'm now going to hear the evidence that I've gathered and decide whether you should be deported that this man is not an impartial fact finder.

Justice Hugo L. Black: What kind of suit was that?

Mr. Richard Tinsman: That suit was a deportation proceeding, this was the last point that I was going to cover in my brief but it's on 24, it's Wong Yang Sung versus McGrath and virtually the identical procedure was followed in that case, as is followed in social security hearings where the Government hearing officer gathers the evidence for the Government and then listens to the evidence he gathers and listens to the immigrant in that case and then decides whether or not he should be deported.

Here, the hearing examiner gathers the evidence for the Government.

Arranges for which witnesses he will call and then he simple decides whether or not he is going to believe the evidence that he has gathered or he is going to believe the evidence that the claimant puts on.

And the problem is particularly pointed in this -- like cases such as this where -- and the evidence is directly conflicting and much of the evidence relied on by the hearing examiner in this case was by evidence from insurance company doctor.

This man had insurance company claim and the insurance company doctor who did the initial examination.

Although, he said they were only state doctors.

Dr. Munslow as the evidence will show in the reports in the record was the insurance company doctor.

Dr. Munslow was the doctor he relied on as well as the hearing adviser, the medical adviser who had never examined the man.

What we are saying basically here is that this Court in a number of cases has said that where Government action direct or Governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals.

It is imperative that those agencies use the procedures that have been traditionally associated with the judicial process, that was --

Justice Thurgood Marshall: Was your first point really the same as a charge that the Government hadn’t provided hearings but they have hearsay hearings, would you say that’s unconstitutional?

Mr. Richard Tinsman: We say Your Honor when that it is basically unfair and that this Court has held it in cases where there is direct conflicts on the crucial issue to be decided and it is an issue which gives rights or denies rights to the individual.

That he is entitled under the constitution to a fair hearing and this Court has held that a fair hearing requires confrontation and cross examination.

Justice Thurgood Marshall: Do you mean by that, in this instance, I gather you did.

Mr. Richard Tinsman: Yes sir we definitely did.

Justice Thurgood Marshall: You say evidence could not be used.

Mr. Richard Tinsman: We mean that it cannot be considered by the decision maker in rendering a decision.

Justice Thurgood Marshall: Well that would be no good.

Mr. Richard Tinsman: That’s right, in fact Mr. Justice --

Justice Thurgood Marshall: What would it do to the subpoena to the doctors, if this man has a lawyer here?

Mr. Richard Tinsman: Yes sir, I was his lawyer at the hearing.

Let me say this is one of the crucial points.

Justice Thurgood Marshall: Just for a moment, if you subpoenaed the doctor, do you think that you would be able to shake him down and make them change that interest?

Mr. Richard Tinsman: Well let me say this Mr. Justice Marshall.

Yes sir in the workmans compensation proceeding where these doctors were called the man was granted total permanent benefits, which is a perfect example.

Justice Thurgood Marshall: Well all I'm trying to say is are you offering experts?

Mr. Richard Tinsman: Yes, we offered one doctor.

Justice Thurgood Marshall: My question was did you offer any expert?

Mr. Richard Tinsman: Well, I consider that the doctor was an expert witness by that --

Justice Thurgood Marshall: Expert in what?

Mr. Richard Tinsman: In medicine Your Honor, in other words are you saying did I offer any specialist?

Justice Thurgood Marshall: Yes.

Mr. Richard Tinsman: No, I did not Your Honor.

Justice Thurgood Marshall: Were you prevented from doing it?

Mr. Richard Tinsman: No sir and it is our position in response to this.

Justice Thurgood Marshall: Would it be the proper way to contradict a medical testimony by your cross examination that could be done by contrary affidavits?

Mr. Richard Tinsman: Your Honor I would say this to you, it has been my experience and I am a trial lawyer who is a plaintiff’s lawyer that in many cases.

One is this example that when the doctors have to come testifying not only sometimes it isn’t the question of shaking their testimony but showing their bias and making their position look ridiculous.

For example the medical adviser in this particular case Dr. Levin testified on the record that he would consider no person in this country disabled even a quadrant amputee if they were given proper treatment.

Justice Thurgood Marshall: Do you testify to that?

Mr. Richard Tinsman: Yes sir on page 150 of the record.

Justice Thurgood Marshall: Is that on the record?

Mr. Richard Tinsman: Yes sir.

Unknown Speaker: What page is that?

Mr. Richard Tinsman: 150 in the record Your Honor and it's down right at the bottom, the reporter has got quadrant amputees spelled wrong but it's right at the bottom.

Justice Potter Stewart: If he is given proper treatment.

Mr. Richard Tinsman: If he is given proper care he says there is no person who is disabled in the country.

Even one with all of his arms and legs off, I don’t think this was the intent of Congress that no person could be disabled.

Justice Hugo L. Black: It may have been the intent of the doctor to testify.

Justice Potter Stewart: But he was there for cross examination, was he?

Mr. Richard Tinsman: That’s right but he had never examined the man and this is the significant thing, is he comes along and says even though, I have never examined this particular individual, I've looked at the doctor’s reports and I have looked at the transcript to Dr. Morales’s testimony and I think these doctor’s reports are wrong and this doctor is right.

Well, we don’t feel that that is absolutely necessary in any event.

Justice Potter Stewart: Well, is the administrative determination subject to judicial review?

Mr. Richard Tinsman: Yes sir, it is but only under the substantial evidence rule and I think this is another significant thing is 32% of the awards which have been appealed under the substantial evidence rule have been sent back which means that the Courts found there was no evidence.

Justice Potter Stewart: Well not necessarily, they are sent back for reevaluation many times and referred for further hearing, this doesn’t follow what you said.

Now, let me ask you this, why did you not call a specialist?

Mr. Richard Tinsman: It is our opinion -- it was our judgment at least that once we make our case, it is not our burden to disprove the Government’s case in effect that’s what we are being asked to do?

Justice Potter Stewart: You feel you have made your case with the general practitioner's testimony on as elusive a subject as back injury?

Mr. Richard Tinsman: Yes sir.

Justice Potter Stewart: How was the injury incurred in this case?

Mr. Richard Tinsman: This man was picking up a bundle of shingles Your Honor and he was truck driver and unloading some shingles, he picked up a bundle and injured his back.

Justice Potter Stewart: And has he worked at all since then?

Mr. Richard Tinsman: No he has not and in fact it shows in the record only in his application to proceed in forma pauperis, one year after this hearing, this man had a back effusion which means all of these doctors who said there was nothing wrong with him were found to be wrong.

And the general practitioner who testified that he was disabled and there was something there even though he had no objective evidence was subsequently proven correct.

Justice Potter Stewart: Don’t you think the -- let me track you down on that.

There was something wrong with him because he had efeffusion?

Is that what you’re saying?

Mr. Richard Tinsman: In other word the doctor would not have done effusion unless he found that there was some problem in his back that requires this effusion.

Justice Potter Stewart: Well, he might have felt, it might help this man in some way knowing he had effusion.

Mr. Richard Tinsman: Well, the doctor obviously would not have done effusion if he felt the man did not need it Your Honor.

Justice Potter Stewart: Well he was in there, he was in the back.

Mr. Richard Tinsman: Yes sir.

Justice Potter Stewart: And many times did they not make effusion anyway?

Mr. Richard Tinsman: No it's been my experience at least in the trial practice and I've tried many back cases that effusion is only done as a last resort when you cannot eliminate the pain by any other method.

Justice Potter Stewart: Did it eliminate his pain?

Mr. Richard Tinsman: This man has had less pain but he is still a man with a third grade education and he is not been able to go back to work.

This accident happened in 1965.

Justice Potter Stewart: What does the third grade education have to do with his pain?

Mr. Richard Tinsman: Well, many people can, for example, a lawyer can work with pain or an accountant can, even though if he has back pain can perform labor but a laboring man whose really only asset is his back, is one who if he has a great deal of pain in his back cannot continue to earn a living.

Chief Justice Warren E. Burger: You seem to be saying that when a back effusion is done, the spinal effusion is done that proves that it should have been done.

Mr. Richard Tinsman: No sir, we’re not -- we’re saying that there was something wrong with this man’s back at the time that all of the specialists said this was just of mild severity and that he could go to work.

Justice Potter Stewart: Well this isn’t in the record anyway?

Mr. Richard Tinsman: This is not in the record and we simply mention it because these questions were brought up.

The --

Justice Hugo L. Black: In your judgment, does the trouble he had to have been medically made?

Mr. Richard Tinsman: Well the doctors that we had said it were a back sprain.

Now I have not gone in and because actually, after the workmans compensation proceeding that was tried where he was granted total disability, I have not gone in and followed the medical records that closely because that would have to be reserved for another hearing.

But at the time of the hearing he was held to have a back sprain.

His own doctor said that the pain so severe that he could not work.

The insurance company doctor and as well as the doctor from the state agency said he had something wrong with his back but they felt that he could work based on this.

Justice Hugo L. Black: What was that you say caused the sprain?

Mr. Richard Tinsman: His lifting a bundle of shingles Your Honor when he was unloading a truck.

Chief Justice Warren E. Burger: You made the point that there should be an independent hearing examiner for each one of these --

Mr. Richard Tinsman: Yes sir.

Chief Justice Warren E. Burger: Does this record contain any estimate as to how many hearing examiners it would take to handle the 20,000 hearings?

Mr. Richard Tinsman: In an article cited in the amicus brief in the Mississippi law journal, it states that at in the present time, there are approximately 200 examiners in the United States, each of whom here in average of eight to ten cases per month.

Chief Justice Warren E. Burger: So, are you suggesting that we apply to figure out how many hearing examiners we need to hear these 20,000 cases each year?

Mr. Richard Tinsman: Well, those hearing examiners now hear these 20,000 cases Your Honor.

All we are saying is that we should make these hearing examiners independent and do just like it’s done in the Long Sherman’s case and make the Government attorney come in and present the Government evidence.

Chief Justice Warren E. Burger: Then it doesn’t make any difference.

You got to get some more people to take the place of those bodies.

You’d have to get some lawyers to do what the hearing examiner now does for the Social Security Department, wouldn’t it.

Mr. Richard Tinsman: Yes sir, that is correct.

Chief Justice Warren E. Burger: But if they stayed on as lawyers is there any figure as to how many examiners you would need?

Mr. Richard Tinsman: No sir but in other words, we don’t see that they would need any more examiners.

They would just need about -- they could use members from the U.S. attorney’s office but with only 200 examiners, this would not be an extensive available use of manpower.

I mean, if you say that a lawyer can be basically fair in this context, you could say well the plaintiff’s lawyer should be the hearing examiner.

He’s a lawyer; he’s gathered the evidence for his claimant.

He can listen to the Government’s evidence but that’s ridiculous.

And we all agree with that but it's really not anymore ridiculous than allowing the government’s lawyer who has gathered the Government’s evidence to be the hearing examiner and the independent man in --

Justice Thurgood Marshall: I assume that when put on Government lawyer at least on one of those hearings then the next question would be that each one of the applicants that have lawyers to represent them paid for by the Government.

Mr. Richard Tinsman: Not necessarily Your Honor.

Justice Thurgood Marshall: Why not?

Mr. Richard Tinsman: Well, the reason is that this is not such a -- in other words the right granted by the social security are not such a fundamental rights that you are required to have counsel although HEW has pilot programs around the country where they are providing attorneys for all social security claimants.

They have done this on their own.

Justice Thurgood Marshall: What I mean with that, there would be a bigger requirement out of this.

If you raise that on the state then you have to have an formal fact finder presenting the evidence and gets pretty formal.

Mr. Richard Tinsman: Well there's been no --

Justice Thurgood Marshall: Then we have an adversary proceeding.

Mr. Richard Tinsman: Yes sir but there's been no requirement in civil cases that you are required to have a lawyer --

Justice Thurgood Marshall: Well why do you have to prove that you object.

Mr. Richard Tinsman: Pardon sir?

Justice Thurgood Marshall: What does the examiner do, is he gets the medical reports right?

Mr. Richard Tinsman: Yes sir he does.

Justice Thurgood Marshall: He takes them, he reads them, and puts it in evidence.

Mr. Richard Tinsman: Yes sir.

Justice Thurgood Marshall: What else does he do up in the hearing?

Mr. Richard Tinsman: Well he cross examines the claimant.

Justice Thurgood Marshall: Does he cross examine or does he examine?

Mr. Richard Tinsman: Well I think if you’ll look at the record in this case Your Honor, you will find that really he cross examined the claimant and almost took an adversary attitude.

Justice Thurgood Marshall: Well, I suppose I find that he did cross examine --

Mr. Richard Tinsman: Well our position would be --

Justice Thurgood Marshall: What's so evil about it?

Mr. Richard Tinsman: Well as we’ve cited in our brief this mere appearance of evil, you may have a man who is completely fair as a district attorney and who could get up and judge exactly the cases that he puts on.

Justice Thurgood Marshall: Well in this case, we have a lawyer, who is at the hearsay testimony --

Mr. Richard Tinsman: I would be here on the point of hearsay testimony, yes sir I would.

Justice Thurgood Marshall: I’m just trying to find how we can get out of this, particularly what you said in this argument --

Mr. Richard Tinsman: What we ask is, we ask that there be an impartial fact finder which Mr. Justice Brennan said has to be essential in Goldberg.

Justice Thurgood Marshall: (Inaudible)

Mr. Richard Tinsman: No sir, a hearing examiner can be an impartial fact finder but not one who is required to gather all of the Government’s evidence.

He is --

Justice Thurgood Marshall: (Inaudible) 55 26 gets to the reports of these doctors, is that all of it?

Mr. Richard Tinsman: No, he can gather other evidence such as evidence --

Justice Thurgood Marshall: How about this case?

Mr. Richard Tinsman: In this case, he went out and subpoenaed in the evidence of fellow employees, he brought in the medical advisor and this is all that he did in this case.

Justice Thurgood Marshall: Right.

Mr. Richard Tinsman: What we’re asking for is a hearing --

Justice Thurgood Marshall: Well in this case is a medical adviser?

Mr. Richard Tinsman: That’s correct.

Justice Thurgood Marshall: And he says you’ve looked over this with your expertise and give me your impression on it which I can take or lead.

Is that right?

Mr. Richard Tinsman: That is correct, that is correct Your Honor.

Justice Thurgood Marshall: Now how do you extend all of that (Inaudible) the evidence.

All he did was pick up what was mailed to him.

Mr. Richard Tinsman: Not necessarily Your Honor, he had --

Justice Thurgood Marshall: Well in this case --

Mr. Richard Tinsman: He went out and secured the insurance company, all of the records of the insurance company doctors as well.

Justice Thurgood Marshall: Did he get out to gather?

Mr. Richard Tinsman: Well he had -- he had some members of his staff to go and obtain them, yes sir.

Justice Thurgood Marshall: So it wasn’t him?

Mr. Richard Tinsman: Well, his staff was acting under his direction I assume.

Actually the type of hearing, we’re asking for has been provided under the Long Sherman’s Act for a number of years where there is an independent fact finder.

The Government lawyer presents evidence or the insurance company lawyer depending on whether they’re insured or not.

And the claimant’s lawyer presents evidence.

Justice Potter Stewart: Is it more that constitutional or is it done that way anywhere else?

Mr. Richard Tinsman: Pardon sir?

No, I'm not saying that just because the Long Sherman’s Act does it that way it's constitutional but --

Chief Justice Warren E. Burger: Your reference to the Goldberg case confuses me a little bit.

Mr. Justice Brennan’s opinion on the Goldberg case didn’t prescribe the kind of examiner you are talking about.

He merely said, as I recall it, that once the benefits have been declined by one member of the staff of the agency, then the review of that must be by a different member of the staff.

Now that’s not the kind of an independent examiner you’re talking about.

Mr. Richard Tinsman: Well Mr. Chief Justice he stated in the opinion, of course an impartial decision maker is essential and then cited two cases, In re Murchison and the Wong Yang Sung versus McGrath.

Chief Justice Warren E. Burger: That has to relate that to what was decided by the Court in the case.

It merely said a different member of the staff.

Mr. Richard Tinsman: Yes sir, the actual decision was that this but the dicta was in the opinion that this impartial decision maker is essential and cited these two cases.

One of which had almost the identical type of hearing examiner that we have here and this Court held that it was a denial of due process.

Justice Potter Stewart: But is this procedure subject to the Administrative Procedure Act?

Mr. Richard Tinsman: Well this has been raised, we took the position that it was.

The Fifth Circuit took the position that it was not.

The American Bar Association has filed a brief here saying that it was.

Actually, in the facts of this case, it doesn’t make any difference but --

Justice Potter Stewart: One of the cases that Mr. Justice Brennan decided was the Wang Yang case?

Mr. Richard Tinsman: That case held that the Administrative Procedure Act actually required this --

Justice Potter Stewart: Wasn’t it constitutional holding though?

Mr. Richard Tinsman: No sir.

Justice Potter Stewart: When you say required this, you mean what?

Mr. Richard Tinsman: Required an impartial hearing examiner who does not marshal the evidence for the Government.

Justice Potter Stewart: But that wasn’t a constitutional decision, the Wang Yang.

Mr. Richard Tinsman: No it was an Administrative Procedure Act decision but there have been a number of -- in other words the decisions of this Court have indicated that a impartial decision maker is something that is implicit in a fair trial.

Justice Hugo L. Black: From your brief, whether you believe that the ABA applies or should be barred on.

Mr. Richard Tinsman: Well in the facts of this particular case, it makes no difference.

I would agree with the American Bar Association that the Administrative Procedure Act does apply.

In our brief, in the Fifth Circuit, we took this position but the Fifth Circuit, although they held for is inferentially held that the Administrative Procedure Act doe not apply but both of these Acts --

Justice Hugo L. Black: Well I suppose you are free here to defend the judgment you want below on the ground which they didn’t decide in your favor if you want to, right.

Do you want to take the position with us that the Administrative Procedure Act does apply?

Mr. Richard Tinsman: Well, under the facts of this case Your Honor it doesn’t make any difference.

Justice Hugo L. Black: Alright.

Why do you say that because it applies, here hearsay would be admissible but it's subject to cross examination?

Mr. Richard Tinsman: No sir, the Administrative Procedure Act says in the discretion of the hearing examiner, the procedure of the hearing -- in the discretion of the hearing examiner of such a nature to afford the parties a reasonable opportunity for fair hearing.

That’s all the Administrative Procedure Act holds and the Social Security Act basically holds the same thing but the Social security administration has taken the position in the past that even when there is a direct conflict, a fair hearing does not require the right of confrontation and cross examination of the people on the crucial issue to be decided.

Now, this super hearsay that they say should rule that should be adapted.

They don’t say whether it applies to engineers or architects or dentists or accountants or lawyers or any other professionals.

They are trying to restrict this hearsay rule that we don’t have to apply the normal rules of hearsay only to doctors and they’re trying to apply this on the basis --

Chief Justice Warren E. Burger: You left five minutes after lunch, if you find that our questioning has discommoded your argument we might add a little bit to that if you need it.

Mr. Richard Tinsman: Thank you sir.

Chief Justice Warren E. Burger: Do you think you will need any more than the five minutes you have remaining?

Mr. Richard Tinsman: I may need an extra five minutes Your Honor.

Chief Justice Warren E. Burger: Well, we’ll give you three.

Mr. Richard Tinsman: Alright, Mr. Chief Justice may it please --

Justice Potter Stewart: You said as we left that you were not relying upon the APA?

Mr. Richard Tinsman: Yes sir, we are -- it is our position that we relying on the APA.

Justice Potter Stewart: There is the provision and I asked you about the cross examination and you said that was not provided.

Mr. Richard Tinsman: The Administrative Procedure Act Your Honor provides that cross examination --

Justice Potter Stewart: Section 7 (d) is the one that I was referring.

Mr. Richard Tinsman: Yes sir and if party is entitled to conduct --

Justice Potter Stewart: I know what it says but you were -- you said you were not relying upon that?

Mr. Richard Tinsman: Yes sir, we are but it has been interpreted because it says --

Justice Potter Stewart: You said it’s the same as in the Social Security Act, I don’t find it in the Social Security Act.

Mr. Richard Tinsman: Well it's in the social security regulations Your Honor which are in the record and it's -- I don’t have it right here but social security regulations in effect say that you are entitled to it but the Administrative Procedure Act, I agree spells it out clearly -- more clearly, when it says that a party is entitled to conduct such cross examination as maybe required for a full and true disclosure of the facts.

It's just that the HEW has interpreted that there is never a requirement for cross examination of medical doctors for a full and true disclosure of the facts.

Justice Hugo L. Black: Well that doesn’t include you relying on up here.

Mr. Richard Tinsman: No sir it doesn’t.

Justice Hugo L. Black: (Inaudible)

Mr. Richard Tinsman: No sir it does not.

Justice Hugo L. Black: I suggest to you again that it's a very good point that you’re defending a judgment below you have now the opinion other than the(Inaudible)

Mr. Richard Tinsman: Yes sir, in other words -- thank you sir.

Justice Potter Stewart: You can even defend on the ground that it's right.

Mr. Richard Tinsman: [Laughter] Well, what we are taking the position is that regardless of whether or not the Administrative Procedure Act said this or not that due process requires this and Mr. Justice Brennan in Goldberg said in almost every setting where important decisions turn on questions of fact, Due Process requires an opportunity to confront and cross examine adverse witnesses.

Chief Justice Warren E. Burger: Notice, he said almost.

Mr. Richard Tinsman: Yes sir.

Chief Justice Warren E. Burger: Not in every situation and you have to read that in the light of what was decided there.

Mr. Richard Tinsman: Yes sir.

Chief Justice Warren E. Burger: Namely that the hearing officers were not totally independent.

It wasn’t the total adversary due process.

Mr. Richard Tinsman: Well, Your Honor what the Government is saying, when it comes to other cases where the poor people are involved really doesn’t rely on this concept of inherent rightness of the doctor’s reports.

In cases involving the revocation of a pilots license for example where a $40,000.00 or $50,000.00 job maybe at stake.

The FAA does not simply allow introduction of reports but they go ahead and allow the pilot to put on his doctor.

The FAA puts on their doctor and then the hearing examiner after evaluating that testimony, not the reports, goes ahead and makes a decision.

And so the Government is seeming to take the position when there are a lot of cases and where poor people are involved, we have one standard and where there are few cases and more affluent people involved, we have a different stand.

Basically, the Solicitor General took the position that it really doesn’t make any difference that the doctor is just going to get up and read his report and that’s all there is to it.

Well, as a member of the trial bar, who has tried a number of cases, I will say to you that in my opinion this is the real key.

This makes a tremendous difference as to whether you can win or lose your case as to whether you can cross examine the doctors who are relied upon by the Government.

Many doctors, for example, we see everyday --

Justice Potter Stewart: Well if that’s much difference why didn’t you call a doctor?

Mr. Richard Tinsman: Because it's our position, first the practical matter.

You recall the Government doctors get paid a $125.00, if we subpoena them they get paid the witness fee of $20.00.

In our area, it is unethical with agreement with the medical associations to subpoena a doctor without paying him his reasonable fee as set up between the bar.

Justice Potter Stewart: I thought the Government would pay him?

Mr. Richard Tinsman: They pay him the $20.00 witness fee Your Honor and nothing more.

Not any stipend like they pay their own doctor and so what we are faced with if we have to call their doctors, is we have to pay his fee for coming and attempting to disprove the Government’s case which is a practical matter.

Justice Potter Stewart: Do social security taxes support disability?

Mr. Richard Tinsman: Yes sir, they do.

Justice Potter Stewart: In other words, your client has been making contributions toward disability as well as the other benefits.

Mr. Richard Tinsman: Yes sir he has.

Justice Byron R. White: Well, would you have any real objection here if the Government said to you “look, we give you your choice.

You can either get a subpoena out to the doctor or not.”

Now you have got your choice of either we are going to use either the report or the doctor which every one you say.

Now we are going to -- I mean that happens to be the rule and you just don’t have to call the doctor at that time --

Mr. Richard Tinsman: Well I think what you’re basically saying if you take that position Mr. Justice White is that we are not only having to prove our case but then once the Government simply puts in a report, we have to go forward and disprove the Government’s case.

Justice Byron R. White: Well that’s a different point but on the point you were making, would have any real complain as the Government says?

You just tell us what you want, the report or the doctor?

Mr. Richard Tinsman: Well we -- In other words we would always say we want you to bring the doctor here and you pay them, yes sir.

Justice Byron R. White: You would always say that.

Mr. Richard Tinsman: Yes sir.

Justice Byron R. White: Even though you’ve got an expert that your going to call?

Mr. Richard Tinsman: Yes sir because we are found -- Mr. Justice White it's been my experience that we have found that many of these doctors in their reports will say this man has a 20% disability which means of course, he doesn’t have a total disability but this same doctor will testify when he comes to a hearing that the only way he will give a man a 100% disability, if he is paralyzed from the neck down.

And unless he is bedridden he gives -- it doesn’t give people a 100% disability and the further thing that is shown here in this very case where in the workmans compensation proceedings, the doctors had to be called and had to testify, that fact finder found that he was totally and permanently disabled.

Justice Hugo L. Black: What does he do now?

Mr. Richard Tinsman: He does not do anything sir.

I think if really -- if the Government really believed that these doctors reports were so inherently -- such inherent probative value, why wouldn’t they just simply take the claimants doctor’s report and dispense with all these independent doctors.

Chief Justice Warren E. Burger: Was it his own physician indicated that there was some psychosomatic involvement here?

Mr. Richard Tinsman: His own physician indicated that there was an emotional overlay and this together that these two factors that prior to the injury he was able to go out and earn a living even with the pre-existing emotional overlay.

But with the back condition that he had and emotional overlay that he had partly brought about on by his destitute circumstances.

In social security cases, you cannot even apply until you have been unemployed for six months.

And in this case, the hearing wasn’t held until he had been out of work for over a year-and-a-half.

So, generally these people are pretty destitute by the time, they get to a hearing examiner and anyone who’s been out for a year and a half is going to have some emotional overlay.

Chief Justice Warren E. Burger: Mr. Tinsman, what would you say if instead of calling these -- using these panels of doctors, specialists if these matters were referred to the panel of specialists to act as triers and let make them make the decision, you wouldn’t expect that you could cross examine a hearing officer would you?

Mr. Richard Tinsman: No sir but in effect what your saying is allow the medical adviser to be the hearing officer as to medical disability, is that correct?

Chief Justice Warren E. Burger: Would you think that was unconstitutional or otherwise --

Mr. Richard Tinsman: Well, I would say this Mr. Chief Justice that unless at the hearing before the hearing officer that you allowed the man to have the cross examination of the doctors who opposed the contention of his doctor that this would be a denial of due process.

Now, if you allowed a doctor to be a hearing examiner that would be fine.

Chief Justice Warren E. Burger: Perhaps that’s -- you see no objection in the statute of the constitution to having filed in a situation like this referred to the doctors and let their decision be made as the determiners and triers of the issue.

Mr. Richard Tinsman: Well, it depends on how -- I don’t agree that just the file should be referred to them Your Honor.

Maybe the testimony as taken down and if you make them the final arbitrar on all medical questions.

This would be -- in other words you would be making them the independent fact finder and this would be constitutionally permissible.

But one of the problems is who do you accept as a doctor?

The state agencies many times select doctors who because they are attempting to hold down the cost of their own disability programs are generally very conservative and are hesitant to find disability in a man particularly where it means that money will be paid out of the public treasury.

And this is the type of doctor generally that is selected by the state agencies and example is Dr. Levitt here who would find no one disabled unless they were -- even if they had both arms and both legs off.

Chief Justice Warren E. Burger: He didn’t quite put it that way did he?

Mr. Richard Tinsman: No he didn’t quite put it that way but I think it indicates his thinking.

Unknown Speaker: Mr. Tinsman, let me bring you back to the merits.

How many specialists had reports in this man's file on him?

Mr. Richard Tinsman: This man has been seen by Dr. Munslow who was a doctor of the --

Unknown Speaker: How many, how many?

Mr. Richard Tinsman: As I recall there were four Your Honor.

Unknown Speaker: Four.

Mr. Richard Tinsman: And then there was an additional one we submitted to the appeals counsel, so five.

Justice Byron R. White: What would you do as an attorney?

Would you demand all five physicians show up at this hearing?

Mr. Richard Tinsman: No sir I do not say that.

Justice Byron R. White: What would you do -- what would you do?

Mr. Richard Tinsman: In other words, I would say that the Government has to have at least one doctor.

Specialist or non specialist.

In other words, they have to have some substantial evidence.

Justice Byron R. White: Well, suppose one showed up, would you object to his reference to the reports of the other four?

Mr. Richard Tinsman: It depends on what the other four found, if the other four were finding subjective things such as non cooperation and things of that.

I would object to that.

If they were simply referring to actual positive tests like a reading of an x-ray or reading of a --

Justice Byron R. White: Suppose they contained what they usually contain, the diagnosis, would you object that?

Mr. Richard Tinsman: Yes, I would object to them referring to another doctor’s diagnosis, I would say you have to testify from what you found just as in this --

Justice Byron R. White: So you want -- in this case you would insist on five physicians being subpoenaed?

Mr. Richard Tinsman: No sir I would not.

Justice Byron R. White: To be in present.

Mr. Richard Tinsman: No sir, I would not.

I would insist on only one being present and if the Government had one present and he testified, then this would be for the hearing examiner to evaluate.

Not all five present and I would say this.

There was one specialist who we found out later because normally reports to the state welfare agency are not open to the claimant.

We found that a specialist in the same office as of Dr. Langston who was relied on by the Government who is a partner of his had found does man did have a post operative herniated disc but we couldn’t find that out until later because this report was not made available to us.

Justice Byron R. White: Why still -- I don’t understand why the Government has in effect said to you look Mr. claimant, do you know we were going to rely on reports of that of doctors but all you have to do is tell us and we will have the doctors there by subpoena, do you want them?

Why isn’t that the practical situation?

Mr. Richard Tinsman: The practical situation is not there Your Honor because number one; they don’t have the subpoena that you request and secondly even if they do --

Justice Byron R. White: But you didn’t even ask them.

Mr. Richard Tinsman: That’s right because we take the position that what in effect then you are requiring us to do is not only prove our case but we have to come in -- if we put the witnesses on and disprove the Government’s case and what if these witnesses testify adversely?

Justice Potter Stewart: What would happen to these doctors, the Government might well putting on in the case or there is any formality at all, the Government might prefer that have relied testimony of the doctor if he was there.

Mr. Richard Tinsman: Well, they had a second hearing Your Honor in this case, the Government did not choose to call their doctors and the second hearing that brought in --

Unknown Speaker: You didn’t choose to ask them to be there either.

All you had to do is say so and they would have been there.

Mr. Richard Tinsman: Well, from the reports they certainly wouldn’t have helped us and so it was our position --

Unknown Speaker: Exactly, and you had -- you tell me that you would always have the doctor there, if you thought that doctor is going to hurt you, you would not have him there, because he’s going to help you, you would have him there.

Mr. Richard Tinsman: If I was calling him directly.

Unknown Speaker: All you had to do is ask as far as we know the Government would have had the doctor there and you did not ask.

Mr. Richard Tinsman: But if I had to have a choice between the report being relied on by the hearing examiner or the doctor’s personal testimony being relied on by the hearing examiner, even though I knew both were adverse to me, I would rather ask the doctors there.

Unknown Speaker: Well then why didn’t you ask the doctor to be there?

Mr. Richard Tinsman: Well, it was a decision that we made that we felt that if we had asked the doctor to be there in effect number one; we would be vouching for the doctor, number two we would have had to pay for the doctor --

Unknown Speaker: Well I don’t know how you stick with the Government with some agreement by your local bar association that you pay doctors.

And if you issue subpoena for the doctor, he’s going to show up.

Mr. Richard Tinsman: Yes Sir but I have to continue to practice law in that community and if you do this as a practical matter, there are going to be some doctors that will always give your clients --

Unknown Speaker: But there is due process claim on that.

Mr. Richard Tinsman: No, we’re not building -- in other words what we’re saying is that we just don’t have this obligation to an effect disprove the Government’s reports.

In effect, this would mean that in any administrative hearing if the Government put on the report of a lawyer or an engineer or anything else --

Unknown Speaker: Did they tell you in advance, we are going to rely on the written reports unless you want the live testimony there.

Now if you want the doctors there you just tell us we’ll have him there even before the hearing even starts.

Mr. Richard Tinsman: Let me say this as a practical matter Mr. Justice White, they don’t tell you that.

They say the reports were going to rely on can be examined you on the morning of the hearing or in the examiners office and he is in Houston and it's not feasible to go 200 miles to look at the reports that happen to be in his office, we have written --

Unknown Speaker: Are you suggesting you didn’t know you have the right to subpoena the doctor?

Mr. Richard Tinsman: Oh we knew that we had the right to subpoena the doctor.

Unknown Speaker: You know choice you had?

Mr. Richard Tinsman: We did not know all of the reports that he had in his file, some of the reports Your Honor, in fact all social security reports that are made are not released to the claimant.

It's against social security -- we have attempted to get them in other cases in the Federal District Court and the social security administrations has come in and said this are not to be released to the claimant the man that was examined.

Because under the federal regulations they’re absolutely privileged so the only time you can see them is when the hearing examiner's file is open to you which means either going to Houston to look at them or on the morning of the hearing.

Justice Thurgood Marshall: Mr. Tinsman, suppose the examiner says that I'm going to appoint a medical advisor and I've instructed not only to look at the reports but to personally examine the man.

And that doctor testified is that --

Mr. Richard Tinsman: In other words --

Justice Thurgood Marshall: Would that satisfy you?

Mr. Richard Tinsman: Yes sir that would satisfy me.

Justice Thurgood Marshall: So the only difference is that the medical advisor didn’t personally examine the man.

Mr. Richard Tinsman: That is correct Your Honor and it's our position that --

Justice Thurgood Marshall: That’s your only point?

Mr. Richard Tinsman: No, no, no that’s our point on the medical advisor.

Our point is that the Government’s evidence as to no disability was only reports.

Justice Thurgood Marshall: Except that my report was based on the reports of the other doctors plus my personal examination of the man.

Mr. Richard Tinsman: I would object to that, I would say his opinion could be only on his examination of the man.

In other --

Justice Thurgood Marshall: Well suppose that happens to agree with the reports --

Mr. Richard Tinsman: Well that’s another matter.

Justice Thurgood Marshall: You mean, you don't want to read the reports?

Mr. Richard Tinsman: I think, he can read the reports but he must form his own independent evaluation.

In other words he can say, I read this reports and I disagree with them.

Justice Thurgood Marshall: That would satisfy you?

Mr. Richard Tinsman: Yes sir that would satisfy me.

Justice Thurgood Marshall: That’s all you want?

Mr. Richard Tinsman: What we want is a man that’s examined him to testify in the hearing, yes sir and our position on this medical advisor thing is if they really believe in these doctors whose reports they say are inherently right, why don’t they just bring one of those doctors to be the medical advisor rather than bringing in a man who has never examined the man.

Justice Hugo L. Black: By the way who has got the burden of proof, the claimant?

Mr. Richard Tinsman: The claimant has the burden of proof Your Honor and he has the burden of proof and --

Justice Hugo L. Black: So had the Government asking you to prove your case is that really turning things around?

Mr. Richard Tinsman: Well, when we bring our doctor who testifies that this man is totally disabled, Your Honor we feel that we have met our burden of proof and then the burden of -- if the Government wishes to contest this, then they must come in with proof that says no, your doctor is wrong, he is not disabled.

Justice Hugo L. Black: What if Congress has passed a law and allowed these people to sue in Court but provided in the law hearsay evidence would be admissible.

Mr. Richard Tinsman: Well, I think Your Honor that if we really feel that what Mr. Justice Brennan said in Goldberg is that in almost every setting where important decisions turn on questions of fact due process requires an opportunity to confront and cross examine adverse witnesses that this would be highly suspect as a violation of due process.

That Congress cannot provide this.

Now the Court said that almost every situation is for this Court to determine which are the exemptions.

Chief Justice Warren E. Burger: Thank you Mr. Tinsman.

Mr. Friedman we've gone considerably over, if you have some more observations we’ll give you some additional time here.

Rebuttal of Friedman

Mr. Friedman: Thank you Mr.--

Chief Justice Warren E. Burger: How much do you think would --

Mr. Friedman: Oh I think another five minutes would certainly be plenty.

I would like at the outset just make three little factual points.

First, in the previous discussion over the role of the examiner in this case I want to make it clear these examiners are appointed under the Administrative Procedure Act.

They are the typical APA examiners who presided normal agency hearings.

They are not under the control of the sector of health, education and welfare.

They are independent examiners.

Now another point was made and I've been advised by the social security people that if a witness is subpoenaed at the request of the claimant.

The Government will pay with a reasonable fee for his appearance.

I'm also told that if a request is made to examine the file prior to the hearing and if the hearing examiner's office is 200 to 250 miles away, arrangements can be made to temporarily send a file to a local place where the man is, so that the claimant or his attorney can examine it.

Now finally, I think it is important and on the two aspects of the case.

First, on the medical examiner's testimony, it seems to me that basically what the medical examiner is doing in this case is pretty much the same thing --

Justice Hugo L. Black: Medical adviser you mean?

Mr. Friedman: The medical adviser, I'm sorry if I misspoke myself.

The medical adviser is doing this case with any expert witness is doing.

The only difference is in the case of the traditional expert witness in Court he gives his opinion in response to a hypothetical question.

A whole string of hypothesis have put together and I take it if in his case the examiner had attempted to summarize the medical reports that have bee presented and then to summarize what had been testified to at the hearing, there will no objection to the adviser giving his expert judgment on that basis.

Now certainly, in this kind of an informal procedure that we have in these hearings, I don’t think, there's any need to resort to such formalism.

The examiner made it very clear in his questions put to the medical examiner that he was asking the medical examiner to give his opinion on the basis of the material included in the reports on the basis of the testimony.

And to whatever extent there might be any infirmities in the reports, to whatever extent there might be reasons that the report should not be accepted, that was clear on the record.

This is not a case of a jury having to have medical expert opinion solicited on the basis of hypothetical questions because otherwise they might assume facts that had been proven.

This is an informal administrative proceeding.

Now, the charge has been made here that the examiner is unfair, that this whole proceeding is unfair and it references to the statement of the need for cross examination and so on.

Justice Hugo L. Black: Now does the statute use the word unfair?

Mr. Friedman: No, no the statute Mr. Justice says that the secretary shall -- it says the secretary shall have full power to make rules and regulations and shall adapt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and the evidence and the method of taking and furnishing to say.

And then under that statute, the secretary has adopted regulations which give the examiner broad authority to conduct the hearings as he sees fit.

And he says that it's within the discretion of the examiner to determine the procedure or hearings generally provided that such nature is for the parties a reasonable opportunity for a fair hearing.

We think that has been given and we think the fairness of this is demonstrated by the fact that in at least a third of these cases, the claimant prevails after the hearing.

And I suppose, in many instances it maybe that when the examiner sees the claimant before him, he gets a different view that the examiner's judgment as to what the report show and what their significance is.

Justice Byron R. White: Mr. Friedman is the hearing of this kind of case a full time job for this presenter?

Mr. Friedman: Yes.

This is --

Justice Byron R. White: That’s all they do?

Mr. Friedman: This is all they do and I might say that these examiners prior to the time they start on the job, they get some kind of a course in which they get some basic medical information, like a six or eight week course in which they are instructed, I understand by various specialists in the field.

And certainly when -- as I said the proceeding is not an adversary one and the failure of the claimant in this case even to request that these witnesses be made available, he is never subpoenaed, I mean the Court of Appeals, he doesn’t (Inaudible).

The Court of Appeals itself in this case recognized that his failure to call the witnesses precluded him from complaining at the fact they weren’t there for cross examination.

Justice Hugo L. Black: What if the congress had passed a law providing cases against private insurance companies could be tried under the same statute and then the finding of the secretary would be final?

What would you say about that?

Mr. Friedman: Well in effect, I would think, it would again depend on what kind of case it was.

There might be some problems with the Seventh Amendment on the right to a jury trial but we do have --

Justice Hugo L. Black: It would be wouldn’t it?

Mr. Friedman: Yes but we do have a similar kind of proceeding Mr. Justice under the Harbor Workmans Compensation statute which traditionally you have it held before a deputy commissioner and that is there are two parties -- there's usually the claimant on the one hand and the --

Justice Hugo L. Black: That’s against the Government, that’s the difference.

Mr. Friedman: That is a Government case, yes.

Justice Hugo L. Black: There's a difference in both these cases.

Mr. Friedman: That is correct, that is right this is the Government and the Government I think, can in dealing with these many problems resort to these more informal procedures that have been developed in recent years.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Freedman, thank you Mr. Tinsman.

Mr. Tinsman, you acted at the Courts request and our appointment.

Rebuttal of Richard Tinsman

Mr. Richard Tinsman: Yes sir.

Chief Justice Warren E. Burger: We thank you for your assistance to -- not only the petitioner here but your assistance to the Court.

Mr. Richard Tinsman: Thank you very much.