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October 18, 1967

Frances C. STASKEL, Plaintiff,
John GARDNER, Secretary of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: MASTERSON

 This is an action pursuant to 42 U.S.C.A. § 405(g) to review a final decision of the Secretary of Health, Education and Welfare disallowing a claim for disability insurance benefits. The final decision in this case was rendered by the Agency's Appeals Council on July 29, 1966.

 Plaintiff requests a rehearing on the question of whether she sustained a "disability" as defined by 42 U.S.C.A. §§ 416(i) and 423 of the Social Security Act as amended by § 303(a) of Public Law 89-97, July 30, 1965, 79 Stat. 286. Under § 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), this court has the power "to enter * * * a judgment * * * with or without remanding the cause for rehearing. * * *" This section further provides that review of the Secretary's decision shall be limited to whether the decisions were based on substantial evidence. *fn1"

 After consideration of the entire record, including the transcript of the proceedings before the hearing examiner, the court has concluded that the decision denying the claimant disability benefits was not based on substantial evidence and that the case should be remanded for further proceedings not inconsistent with this opinion.

 The hearing examiner's finding that claimant was not "disabled" as of September 30, 1956 is based upon the conclusion that the medical evidence shows that the claimant was suffering from only one "grand mal" epileptic seizure a month during 1956. The evidence on this point is conflicting and inconclusive. For example, the hearing examiner cites one report *fn2" of Dr. Joseph Tomlin dated August 15, 1960, in which Dr. Tomlin states claimant was suffering from five spells a year but apparently gives no weight to a later report from the same doctor dated July 25, 1961, in which he states claimant has "tonic and clonic convulsions - (lasting) 10 (Minutes) - occurring (at a rate of) 2 and 1 (per) day." *fn3" In this latter report, Dr. Tomlin gives a history of "grand mal" dating from 1934. He noted that the claimant had not been able to work since 1953 because her "spells" became too frequent at that time. It is significant that in this report the blank relating to the history of the illness was filled in by Dr. Tomlin whereas in the earlier report he did not supply this information.

 The hearing examiner also relied heavily upon a report of Dr. Moll who recited that the claimant suffered on the average of one attack a month over the last thirty years. (Exhibit 21). It is significant to note that in Dr. Moll's history he reports the claimant as having stated to him that she had to stop work in 1953 because of her health.

 The plaintiff attended school only to the fifth or eighth grade and her ability to express herself clearly about crucial facts pertaining to her condition is severely limited. Yet the hearing examiner chose to reject her testimony under oath in favor of hearsay statements appearing in the medical reports of Doctors Tomlin and Moll. As was stated above, Dr. Tomlin noted that the claimant had only five spells a year. (Exhibit 19). The claimant specifically denied this at the hearing and stated that as of that time she had spells as frequently as two or three times a week. (Tr. pp. 20, 21). Dr. Moll noted that the claimant had seizures once a month for a period of twenty years. Again the claimant specifically denied the accuracy of this statement. (Tr. p. 14)

 It would thus appear that the entire factual basis of the examiner's finding against the claimant consists of statements attributed to the claimant in medical reports of doctors who did not testify. These statements were not only specifically denied by the claimant's sworn testimony but, in one case at least, the statement relied upon by the examiner was inconsistent with a statement appearing in a later report of the same doctor. It is well known that the trial examiner may consider hearsay evidence in coming to his decision. *fn4" Where, however, the central issue is the date of onset of claimant's disabling symptoms, a finding based upon fragmentary, cryptic and inconsistent reports of the history of the illness appearing in medical records can hardly be said to be based upon "substantial evidece." *fn5"

 The court is also of the opinion that the claimant was not given a full hearing as required by Rule 20 C.F.R. 404.927. *fn6" In this case the trial examiner called only one witness in the plaintiff's behalf, her brother-in-law. It is quite apparent that the examiner gave this uneducated witness only the most cursory examination. (Tr. pp. 18-19). The trial examiner called no medical witnesses to analyze in depth the controversy created by the various medical reports. What might have been resolved in a full hearing was left to guesswork at a later time. Finally, no witnesses were called to describe the plaintiff's condition while at work. A single knowledgeable witness as to why the claimant stopped working at Spoont's Dress Factory in 1953 might well be worth all of the medical reports in the case.

 Plaintiff in this case was not represented by counsel at the administrative proceeding. The authorities are not clear as to whether or not counsel should be required in a case involving a claimant with limited education and mental capacity. *fn7" However this issue is ultimately resolved, it is clear that there is a justification for different treatment of a case in which the claimant was represented by counsel than one in which the plaintiff was not. In the former, the Court and the hearing examiner can presume that counsel will be fully aware of the technical requirements of carrying the burden of proof and will exhaust all appropriate possibilities so that if the record as a whole leaves the reviewer uncertain as to the facts, the Court can conclude that the claimant was simply unable to carry the burden. Where the claimant is unrepresented and is unschooled, however, there is less justification in permitting technical considerations of burden of proof to defeat what may well be a bona fide claim.

 The Secretary raises the defense that the doctrine of res judicata bars the present action. Plaintiff earlier made applications on the same facts in 1960 and 1961. Pursuant to 42 U.S.C.A. § 405(a) *fn8" the Secretary established rule 404.937:

"The hearing examiner may, on his own motion, dismiss a hearing request, * * * under any of the following circumstances. * * * (a) Res judicata. Where there has been a previous determination * * * by the Secretary * * * on the same facts pertinent to the same issue or issues which has become final * * * upon the claimant's failure timely to request reconsideration."

 This Court finds that since the hearing examiner did not dismiss the hearing request, the right to assert the defense of res judicata has been waived.

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