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KULHAVICK v. MATHEWS

November 9, 1976

JOSEPH KULHAVICK
v.
DAVID MATHEWS, SECRETARY OF HEALTH, EDUCATION AND WELFARE



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, J.

 Before this Court are cross-motions for summary judgment filed by the plaintiff and defendant, respectively. Plaintiff instituted an action in this Court for benefits under the Federal Coal Mine Health & Safety Act, 30 U.S.C. ยง 901 et seq., after his claim was heard and denied by an administrative law judge (ALJ) and by the Appeals Council of the Social Security Administration.

 A careful review of the administrative record establishes that there was fundamental error requiring that the record be remanded.

 Firstly, counsel for the plaintiff objected to the rereading of X-rays already interpreted by a qualified radiologist or radiologists and particularly those X-rays already interpreted as positive (R. 127, 128). The ALJ overruled the objections without explaining the basis therefor. The Appeals Council affirmed without comment. We are not unfamiliar with the fact that in Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971), the Supreme Court held that written reports by physicians who had examined the claimant seeking disability benefits were admissible and could constitute substantial evidence supportive of an adverse finding. 402 U.S. at 402. The Court also found nothing unconstitutional or improper in permitting a medical adviser or witness who had not examined a claimant to appear and testify at an administrative hearing. 402 U.S. at 408. Here, counsel has raised the further question whether a form report, containing no narrative information or explanation, where certain blocks or blank spaces only are checked [], may be relied upon and afford the basis for decision as against the testimony and/or reports of examining physicians. In the preparation of a decision counsel is entitled to some explanation for the ALJ's decision. Moreover, the Court is entitled to be informed as to the reasoning and basis for the ruling in determining whether the report of such a non-examining, non-appearing physician constitutes "substantial evidence" supporting the ALJ's decision. Thus, in Donahue v. Weinberger, 414 F. Supp. 844 (E.D.Pa. 1976) the Court stated:

 
"Thus as Chief Judge Coffin stated in Browne v. Richardson, 468 F.2d 1003, 1006 (1st Cir. 1972) Dr. Learner's submitted report:
 
lacks the assurance of reliability that comes on the one hand from first-hand observation and professional examination, or, on the other from first-hand testimony subject to claimant's cross-examination. It is hearsay based on hearsay. Thus, although the report may be admissible in light of Perales, it cannot be the substantial evidence needed to support a finding. See also Webb v. Weinberger, 371 F. Supp. 793 (N.D.Ind. 1974); Collins v. Richardson, 334 F. Supp. 1333 (D.S.C. 1971).
 
"The acute dangers in relying too heavily on the written submission of a non-examining, non-testifying medical adviser are apparent in a case such as this * * *."

 Secondly, the ALJ has found that plaintiff had less than ten years' employment in the nation's coal mines (R. 17). In this connection he states:

 
"The claimant was given an opportunity post hearing to provide additional evidence of coal mine employment from 1913 until 1917. The only certification provided was Exhibit 42. It is further noted that all of Exhibits 1, 9 and 11 refer credibly to the claimant's working in the mines from 1917 through 1922. Exhibit 8 states that the claimant on March 2, 1973, changed his allegation of 4 years coal mine experience to 10 or 11 years coal mine experience. The statements by others (Exhibits 7, 9 and 42) does not refer to working with the claimant from 1913 until 1917 other than Exhibit 42. The Administrative Law Judge is confronted with less than optimum evidence to wit:
 
a. The claimant -- 1913 through 1922 -- 10 years.
 
b. Mr. Swirk -- 1913 through 1916 -- 4 years.
 
c. Mr. Gladski -- 1917 through 1922 -- 6 years.
 
d. Mr. Pelsinski -- 1717 through 1922 ...

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