Social Security Appeal Reversal
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Josephine GULLO, Plaintiff-Appellant,
v.
Joseph CALIFANO, Secretary of Health, Education and
Welfare,
Defendant-Appellee.
No. 184, Docket 79-6107.
United States Court of Appeals,
Second Circuit.
Argued Oct. 16, 1979.
Decided Nov. 7, 1979.
Kalman Finkel, The Legal Aid Society, Civil Division, New York City
(David Goldfarb, The Legal Aid Society, Bronx, New York City, of
counsel), for plaintiff-appellant.
Rodger C. Field, Asst. U. S. Atty., Eastern District of New York,
Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., and Harvey M. Stone,
Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y., of
counsel), for defendant-appellee.
Before KAUFMAN, Chief Judge, and FEINBERG and SMITH, Circuit
Judges.
PER CURIAM:
In December 1976, Josephine Gullo, then a 59 year-old garment worker,
sustained a fracture of a bone in her left foot. She filed for Disability Insurance
and Supplemental Security Income benefits under the Social Security Act, 42
U.S.C. 416(c), 423 & 1381a, and after denial of her request, her applications
were reviewed by an Administrative Law Judge. Physicians' reports introduced
in evidence noted a continuous improvement in Mrs. Gullo's condition,
although all agreed that she could not return to work.
The Administrative Law Judge reserved decision and ordered Mrs. Gullo to
submit to an examination by an orthopedist, Dr. Irwin Miller. After Dr. Miller
submitted a report concluding that Mrs. Gullo was capable of limited work
activity, the Judge denied her claim, finding her not "disabled" within the
meaning of 42 U.S.C. 423(d) or 1382c. The claimant was never given an
opportunity to examine or challenge Dr. Miller's report prior to the decision
denying her claim. Both the HEW Appeals Council and the District Court
below affirmed the Administrative Law Judge's decision.
3
Social Security claimants must receive "a reasonable opportunity for a fair
hearing," 20 C.F.R. 416.1441, and, if a hearing is held, the Secretary's
decision must be based upon evidence adduced at the hearing, 42 U.S.C. 405.
Nonetheless, physician's reports despite their hearsay character are generally
admissible if submitted prior to the administrative hearing, Richardson v.
Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). The Secretary's
reliance upon such reports, however, has been held to invalidate a decision
denying benefits where the claimant was afforded no opportunity to subpoena
and cross-examine the declarant. Lonzollo v. Weinberger, 534 F.2d 712 (7th
Cir. 1976); See 20 C.F.R. 404.926. The procedures utilized in the case at bar
denied the claimant any opportunity to rebut Dr. Miller's report, and, since the
hearing judge's substantial reliance upon the Miller report is clear, due process
has been denied. Consequently, we view with some alarm the Secretary's
confident assertion that "it is not uncommon for the ALJ to receive reports
subsequent to the administrative hearing," especially if such unchallenged
submissions supply the basis for decision.1
Accordingly, the judgment of the district court is reversed and the case
remanded to the Secretary for further proceedings consistent with this opinion.
Mrs. Gullo's claim that she had a right to a homebound hearing before the
Administrative Law Judge is premature since she failed to make a timely
request that the Secretary provide such a hearing. See 20 C.F.R. 404.923
