Rescinded 1982

SSR 73-59c: Sections 205(g), 216(i) and 223 (42 U.S.C. 405(g), 416(i) and 423.)—Disability Insurance Benefits—Ability to Engage in Substantial Gainful Activity—Use of Vocational Testimony

20 CFR 404.927 and 404.929

SSR 73-59c

James L. Peoples v. Richardson, 468 F.2d 601 (5th Cir., 1972)

Where claimant for disability insurance benefits seeks judicial review of an adverse determination and a court remands the claim for additional vocational testimony, directing that testimony of vocational expert be based on observation of claimant at hearing, on claimant's further testimony, if any, at hearing, and examination of exhibits and hearing record rather than upon hypothetical question posed by administrative law judge, and that expert's testimony be elicited free from any cross-examination by administrative law judge, held, such restrictions imposed by court are contrary to law; the court may not limit the Administration's authority under its regulations (pursuant to which a non-adversary procedure has been established), to examine witnesses, including the vocational expert, and/or to inquire fully into all aspects of his testimony.

Per CURIAM: In this action by claimant for Social Security disability benefits (under 42 U.S.C. 405(g)), the District Court reviewed a final decision of the Secretary of Health, Education and Welfare which denied the claim on the ground that claimant was not disabled. The Court concluded that the case should be remanded to the Secretary for further administrative procedures.

Trial Judge, however, prescribed the method by which additional vocational testimony on remand must be received. He directed that on remand the testimony of the vocational expert be based upon the expert's observation of the claimant at the hearing, on further testimony that the claimant may be called upon to give, and on examination of the exhibits and prior record in this case, "rather than upon a hypothetical question posted by the hearing examiner." The Trial Judge also directed that "the testimony of the vocational expert should be elicited free from any cross-examination on the part of the hearing examiner." The Secretary does not object to the remand of these proceedings but enters strenuous opposition to the restricted method of receiving the vocational expert's testimony, and asks that we nullify them by reversing the District Court's order.

We believe the Secretary's position to be correct and that the restrictions imposed by the District Court relative to the expert's testimony are contrary to law and must be set aside. We are familiar with the Secretary's method of utilizing vocational experts, see Gardner v. Gunter, 5 Cir., 1965, 354 F.2d 755; King v. Finch, 5 Cir., 1970, 428 F.2d 709, and we see no impropriety in the hearing examiner inquiring fully into the basis of the vocational expert's conclusions relative to employment available to the claimant. The District Court may not circumscribe the hearing examiner's authority to examine witnesses, including the vocational expert. See 42 U.S.C. 405(b). The regulations which the Secretary has adopted provided for the conduct of the hearing and examination of witnesses, see 20 C.F.R. 404.927 and 404.929, and these regulations are established under authority of the Social Security Act, 42 U.S.C. 405(a). Richardson v. Perales, 402 U.S. 389, 400, 91 S. Ct. 1420, 1426 (1971). The regulations do not contemplate the restrictions attempted to be imposed by the District Court.

Accordingly, we hold that the restriction imposed by the District Judge were improper and contrary to law and that his findings in this regard must be reversed so that the hearing examiner's role in these proceedings may not be impaired and the purposes of the Act be fully accomplished.


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