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Cotter v. Harris

April 29, 1981

DANIEL P. COTTER, APPELLANT
v.
PATRICIA ROBERTS HARRIS, SECRETARY OF HEALTH AND HUMAN SERVICES (D.C. CIVIL NO. 80-27)



SUR PETITION FOR REHEARING SUR PETITION FOR REHEARING BEFORE PANEL

Before Adams, Garth and Sloviter, Circuit Judges.

Author: Sloviter

SUR PETITION FOR REHEARING

The petition for rehearing filed by Appellee, Patricia Roberts Harris, Secretary of Health and Human Services, in the above entitled case having been submitted to the judges who participated in the decision of this court and no judge who concurred in the decision having asked for rehearing, the petition for rehearing is denied. 642 F.2d 700.

Judge Garth would grant the petition for rehearing for the reasons expressed in his separate opinion filed at the time of the majority opinion and for the additional reasons expressed in his opinion Sur Denial of Petition for Panel Rehearing.

SUR PETITION FOR REHEARING BEFORE PANEL

Opinion OF THE COURT

The usual, and we believe preferred, practice where the opinions of the panel have already been expressed in majority and dissenting opinions is to rule without opinion on a motion for panel rehearing. It is only because of Judge Garth's action in issuing an opinion sur the denial of rehearing in this case in which he has already authored a dissenting opinion that I am prompted to issue this opinion in response, notwithstanding my extreme regret for this proliferation of opinions.

The Secretary has filed a petition for rehearing which argues that the opinion of the court imposes "an unwarranted administrative burden" on Administrative Law Judges.*fn1 The petition also refers to facts and predictions of caseloads and procedures which are not in the record, all of which Judge Garth repeats verbatim in his opinion as if they were properly before us.

The opinion of the court does not, as Judge Garth suggests, place an onerous burden on the ALJ called upon to decide whether a claimant is entitled to social security disability benefits. The opinion simply requires that the ALJ indicate that s/he has considered all the evidence, both for and against the claim, and provide some explanation of why s/he has rejected probative evidence which would have suggested a contrary disposition. As the opinion for the court makes clear, the ALJ is not required to supply a comprehensive explanation for the rejection of evidence; in most cases, a sentence or short paragraph would probably suffice.

Nor should this "requirement" disrupt the processing of disability claims. Judge Garth relies on additional statistics which have not even been proffered by the Secretary in the Petition for Rehearing. Even if they are correct, then approximately 50% of the applications handled by ALJs receive opinions; in cases which are appealed to the courts, the percentage no doubt is much higher. Especially when the ALJ has decided to write an opinion, it is difficult to credit the assertion that insistence on a concise explanation for the rejection of probative evidence will further delay adjudication of disability claims. The court's opinion does not require the ALJ to undertake any additional inquiry, but merely to explain the basis for the decision to reject evidence which s/he has already made.

If anything, this court, by specifying the information it needs to conduct meaningful judicial review, contributes to enhanced understanding between the ALJs and the court and thereby facilitates the final resolution of applications for disability benefits.*fn2 When the court articulates the prerequisites for review, it can subsequently expect the ALJs to furnish explanations adequate for the court to exercise its review function. This should reduce the time required for the court to review the record and obviate the need for remands to develop a more adequate record. In this way, the court's decision in this case promises to expedite, rather than to obstruct, ultimate disposition of social security cases.

GARTH, Circuit Judge, dissenting from order denying panel rehearing.

Judge Sloviter, in her opinion Sur Petition for Rehearing Before Panel, states: "The usual, and we believe preferred, practice where the opinions of the panel have already been expressed in majority and dissenting opinions is to rule without opinion on a motion for panel rehearing." She also expresses regret for "this proliferation of opinions." I do not, however, know of any such "usual" and "preferred" practice. To the contrary, I have always believed that when vital information such as that now furnished by the Secretary is made available to us in a filed petition, a judge of this court has an obligation and a duty to express himself with respect to such information, particularly when the rule which the majority seeks to impose can have the effects which the Secretary foresees. Thus, I am not troubled by any alleged "preferred" practice nor by the majority's concern with a proliferation of opinions. I observe that it is not unusual for multiple opinions to be filed whenever standards mandated by Congress are sought to be modified by the court. See, e. g., NLRB v. Pincus ...


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