filed as amended april 5 1978.: February 16, 1978.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 75-1390).
Rosenn and Van Dusen, Circuit Judges, and Stern, District Judge.*fn* Stern,*a District Judge (Dissenting).
VAN DUSEN, Circuit Judge.
Susan Winfield, acting on behalf of her five-year old son Eric, appeals a district court decision affirming a final determination by the Secretary of Health, Education and Welfare, denying Eric's claim for disability benefits under the Supplemental Security Income Program for the Aged, Blind and Disabled (SSI), 42 U.S.C. §§ 1381 et seq. (Supp. V 1975). Eric was 16 months old and suffered from a congenital eye defect, the absence of the lacrimal puncta, i.e., tear duct, from his left eye, when his mother initially filed for SSI disability benefits on November 27, 1973. Eric's claim was denied on two occasions by the Social Security Administration. Mrs. Winfield then requested a hearing on September 23, 1974. A hearing examiner conducted an evidentiary hearing on February 19, 1975, at which Mrs. Winfield and Eric appeared personally, unrepresented by counsel. In addition to the testimony of Mrs. Winfield and his personal observation of Eric, the hearing examiner had before him medical reports submitted by physicians who had previously treated Eric.*fn1 After the hearing, the hearing examiner forwarded Eric's medical file to a medical adviser designated by the Social Security Administration to offer an opinion whether the claimant's impairment was comparably severe to other impairments qualifying for disability benefits. After considering all the evidence, the hearing examiner denied Eric's claim on April 3, 1975, finding that he did not suffer from a medically determinable physical impairment qualifying for disability benefits under the governing SSI statutory and regulatory provisions (Tr. 10-22).
At Mrs. Winfield's behest, the Appeals Council reviewed the claimant's case, including additional non- medical evidence submitted by Mrs. Winfield after the hearing examiner had filed his opinion, and affirmed the hearing examiner's decision as the final decision of the Secretary. Mrs. Winfield, then with the assistance of counsel, sought judicial review of the Secretary's decision pursuant to 42 U.S.C. § 1383(c)(3) (Supp. V 1975). On cross motions for summary judgment, the district court found that substantial evidence supported the Secretary's determination that Eric Winfield's eye impairment did not qualify as a disability within the meaning of 42 U.S.C. § 1382c(a)(3)(A) (Supp. V 1975). Mrs. Winfield, proceeding pro se, appeals the district court's decision, challenging an aspect of the administrative proceedings as well as the judicial finding of substantial evidence supporting the denial of disability benefits. After considering the complete administrative record, we find no reversible procedural infirmities and affirm the district court's finding of substantial evidence underpinning the Secretary's denial of disability benefits.
Mrs. Winfield's primary objection to the conduct of the administrative hearing is that she was effectively denied an opportunity to comment on the designated medical adviser's report prior to the hearing examiner's rendering of his decision. During the February 19, 1975, evidentiary hearing, the hearing examiner explained to Mrs. Winfield that all the medical reports submitted in evidence would be forwarded to a physician designated by the Social Security Administration who would be asked to determine whether, in his or her opinion, Eric's eye impairment was equivalent in severity to those listed in the regulations now adopted as 20 C.F.R. Appendix 1 to §§ 416.90 et seq. (1977).*fn2 Mrs. Winfield was informed that the medical adviser's report would be sent to her in the mail and that she would have an opportunity to comment on it or to request reopening of the hearing (Tr. 164).*fn3 The medical adviser's report was received by the hearing examiner on March 10, 1975 (Exhibit 29, Tr. 220-21) and was forwarded to Mrs. Winfield in a letter from the hearing examiner dated March 13, 1975 (Exhibit 31, Tr. 223). The letter asked for the claimant's comments to be submitted in ten days, or by March 23, 1975.
From this point on, Mrs. Winfield's account of her communications with the hearing examiner is not entirely a matter of record, although the Government in its brief does not dispute her account. Mrs. Winfield asserts that she was out of state attending a funeral until March 25, 1977. On returning she received the medical adviser's report and claims to have sought and obtained assurances from an administrative assistant to the hearing examiner that she could have an extension until April 4 to collect additional evidence and to comment on the medical adviser's report (appellant's brief at 20-21). Apparently, the hearing examiner was not informed of Mrs. Winfield's extension of time for comments and thus he proceeded to file his decision on April 3, 1975. The next day Mrs. Winfield appeared at the hearing examiner's office with a two-page reply to the medical adviser's report that she had prepared herself without assistance of medical experts (Tr. 229-31). She also appended three statements of personal observations from family and friends who had recently spent time with Eric (Tr. 225-28). At no point did Mrs. Winfield request in writing either that the hearing be reopened or that she have a further opportunity to obtain a medical expert's evaluation of the medical adviser's report. The hearing examiner did not withdraw his decision or reopen the proceedings. However, he forwarded Mrs. Winfield's statements to the Appeals Council. The Council reviewed this supplementary evidence in conjunction with the record relied upon by the hearing examiner and affirmed the denial of disability benefits (Tr. 4).
Accepting arguendo Mrs. Winfield's account of her communications with the hearing examiner's office, we discern no procedural defect or resulting prejudice which would require reversal of either the hearing examiner's or the Secretary's decision. Given the non-clinical nature of the exclusively lay rebuttal evidence submitted by Mrs. Winfield, it was not error for the hearing examiner to fail to reconsider his decision. The medical adviser's report was required to comment on "medical evidence demonstrated by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. § 416.905(b) (1977). Mrs. Winfield's supplemental submissions did not furnish comparable rebuttal medical evidence. In light of the fact that the claimant never secured a medical expert's response to the medical adviser's report, the hearing examiner's decision did not prejudicially ignore relevant evidence. Moreover, the Appeals Council considered in full all of the claimant's post-hearing submissions in addition to the record relied upon by the hearing examiner. The fact that the supplemental submissions were not part of the hearing examiner's record did not prejudice in any way claimant's case when reviewed by the Appeals Council. In sum, while the hearing examiner perhaps should have been more accommodating to a claimant's efforts to rebut an unfavorable medical adviser's report, we cannot conclude that Mrs. Winfield was denied a fair hearing prior to the Secretary's final determination denying disability benefits.
The claimant also challenges the correctness of the Secretary's determination that Eric's eye impairment was not a disability entitling him to Supplemental Security Income benefits. 42 U.S.C. § 1382c(a)(3)(A) (Supp. V 1975) prescribes the governing disability standard:
"An individual shall be considered to be disabled . . . if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months (or, in the case of a child under the age of 18, if he suffers from any medically determinable physical or mental impairment of comparable severity)."
The Social Security Administration has promulgated regulations which enumerate specific physical and mental impairments which qualify for disability benefits. 20 C.F.R. Appendix 1 to §§ 416.901 et seq. (1977). For children under the age of 18, their impairments, if not listed in the Appendix, must be "medically the equivalent of a listed impairment." 20 C.F.R. § 416.904 (1977). Decisions as to the equivalence of a claimant's particular impairment with the impairments listed in the regulations "shall be based on medical evidence demonstrated by medically acceptable clinical and laboratory diagnostic techniques, including a medical judgment furnished by one or more physicians designated by the Social Security Administration, relative to the question of medical equivalence." Id. § 416.905(b).
The claimant challenges neither the validity nor the general applicability of the above-cited regulations. Mrs. Winfield does, however, contend that the Secretary erred in finding Eric's disability not as comparably severe as those listed in the relevant regulations. In reviewing Social Security and Supplemental Security Income disability determinations, our scope of review is statutorily circumscribed: "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . .." 42 U.S.C. § 405(g), incorporated by reference in 42 U.S.C. § 1383(c)(3) (Supp. V 1975). A reviewing court must accept the Secretary's findings if supported by evidence of "more than a mere scintilla" which "a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938). See also Hess v. Sec'y of HEW, 497 F.2d 837, 838 (3d Cir. 1974).
The hearing examiner's decision extensively summarizes the testimony offered by Mrs. Winfield and the medical reports from two physicians who had previously examined and attempted to treat Eric's eye impairment (Tr. 10-22). In briefer summary, Mrs. Winfield testified to the physical difficulties encountered by her young son. Eric's missing tear duct caused his left eye occasionally to produce tears uncontrollably, blurring his vision and interfering with his physical mobility. Eric tended to stumble into objects as a learning walker, but never broke any bones or otherwise injured himself seriously. More persistent was a problem of exposure to infections to which Eric's eye was especially prone. Doctors prescribed topical antibiotics, which appeared successful in minimizing the incidence of infection. Nevertheless, Mrs. Winfield felt compelled to closely watch Eric's play activities to ensure that foreign objects were kept from his eye. Mrs. Winfield also feared that as Eric matured he would develop hereditary allergies which would aggravate the problems of tearing and infection. Mrs. Winfield also ...