Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 87-00033
Opinion SUR PANEL REHEARING
The Secretary of the Department of Health and Human Services (HHS), after a hearing before an administrative law judge (ALJ) and review by the Appeals Council, found appellant John R. Wallace not disabled and therefore not entitled to social security disability insurance benefits or to supplemental security income benefits under 42 U.S.C. §§ 423, 1382, 1382c(a)(3)(A) (1982 & Supp. III 1985). Wallace sought review before the district court, which upheld the Secretary's decision and granted his motion for summary judgment.
Wallace appeals on two grounds. First, he argues that the ALJ's reliance upon medical expert reports obtained after the hearing without an opportunity for cross-examination by Wallace denied him both his statutory right to have a decision on his claim based on "evidence adduced at the hearing," 42 U.S.C. § 405(b)(1) (Supp. III 1985), and his due process rights under the Constitution. Second, he maintains that the ALJ's decision is not supported by substantial evidence.
Because we agree with Wallace that the ALJ's reliance upon post-hearing reports in the circumstances of this case without the opportunity for cross-examination denied him his statutory right to a decision based on "evidence adduced at the hearing," we will not consider Wallace's contention that the Secretary's decision is not supported by substantial evidence.
In February 1985, Wallace, while working as a steelworker, suffered a heart attack. One month later he suffered a stroke which may have caused a loss of vision in the right eye, eventually diagnosed as "homonymous hemianopsia" (defective vision in the right half of the visual field) with additional complications of "ring scotoma" (a circular area of decreased vision) and possible retinitis pigmentosa (a progressive disease affecting the retina). Later that year, Wallace underwent an operation to transfer a vein to improve blood flow in his leg.
In May 1985, Wallace applied for disability insurance benefits and supplemental security income on the ground of his heart condition and visual impairments. After his claims were denied, Wallace was granted a hearing before an administrative law judge pursuant to 42 U.S.C. § 405(b)(1). At that hearing, Wallace testified and introduced reports from his examining physicians detailing his cardiological and visual impairments. Following the hearing, Wallace submitted three additional physician's reports, including one from Dr. A. Barnett who concluded that the combination of Wallace's several eye diseases caused an impairment equal to that in the Listing of Impairments for homonymous hemianopsia.*fn1
Also after the hearing, the ALJ sent Wallace's medical records to two "consultative physicians," Dr. Oberhoff, a Board-certified opthamologist, and Dr. Shugoll, a Board-certified cardiologist, who were both under contract with the HHS to render their medical opinions when requested. Dr. Oberhoff was asked whether Wallace's "visual difficulties" met or equaled one of the Listings for visual impairments contained in 20 C.F.R. pt. 404, subpt. P, App. 1, §§ 2.03-.05. Dr. Shugoll was asked whether Wallace's "cardiovascular disease" met or equaled the Listing for "hypertensive vascular disease" in section 4.03 of the Listings. Id. § 4.03. Each physician concluded that the claimant's impairments did not meet the relevant listing.
The ALJ then sent copies of the reports from the consultative physicians together with what appears to be a standardized form letter to Wallace's counsel, advising him that these reports had been received and notifying him of the following procedures relating to the new evidence:
If you wish to submit (1) written comments concerning the evidence received, (2) a brief or written statement as to the facts and law in the case, or (3) additional evidence not previously supplied, I will carefully consider the material. Please send it to me at the above address within 10 days from ...