United States District Court, Northern District of Illinois, E.D
December 11, 1974
VITO A. LONZOLLO, PLAINTIFF,
CASPER WEINBERGER, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, DEFENDANT.
The opinion of the court was delivered by: McMILLEN, District Judge.
This case comes on to be heard on the Report and
Recommendation filed by Magistrate James T. Balog, and the
plaintiff's exceptions to that report. The case originated
with the plaintiff's complaint seeking a review and reversal
of a decision. Jurisdiction of this court is founded on
42 U.S.C. § 405(g). The case was originally assigned to the
Magistrate pursuant to local rule.
Our function is to determine whether the decision of the
Appeals Council dated October 1, 1973 is supported by
substantial evidence and, in this particular case, to
determine whether the recommendation of the Magistrate is
correct in recommending dismissal of the complaint. His
report in itself will be given no independent force or
The decision of the Appeals Council reversed the decision
of an administrative law judge who had decided on January
26, 1973 that the plaintiff was disabled due to a bad right
kidney and severe leg pains, which prevented him from
standing. The Appeals Council reviewed the administrative
law judge's decision on its own motion and considered an
additional medical report from Dr. James W. Erlenborn dated
June 4, 1973. The Appeals Council notified the plaintiff by
letter that it had received this additional information and
intended to consider it, specifically giving the plaintiff
"the opportunity to comment upon it if you wish".
The plaintiff did comment by a letter dated July 8, 1973
but did not submit any additional medical evidence. He now
contends that he was deprived of the right to be confronted
by Dr. Erlenborn and to cross-examine him, and was not
adequately informed of his right to obtain counsel or to
file legal briefs. He also contends that he was deprived of
due process because the hearing was held 1,000 miles away
from his home and that the Appeals Council did not accept
three affidavits which would have allegedly contradicted Dr.
Erlenborn's report. Finally, he contends that the Appeals
Council's finding is not supported by substantial evidence
and is contrary to the law.
The lack of representation by counsel for an
administrative proceeding is not grounds for setting aside
the decision of the Appeals Council, since no prejudice is
shown. Sykes v. Finch, 443 F.2d 192 (7th Cir. 1971).
Furthermore the plaintiff was given written notice of the
Appeals Council's decision to review the matter by its
letter dated March 22, 1973 which explicitly offered him the
opportunity to engage counsel, to appear in person, and to
submit any further
written evidence or statement. The Federal defendant is not
compelled to provide counsel for a claimant. Jeralds v.
Richardson, 445 F.2d 36 (7th Cir. 1971); 42 U.S.C. § 406.
The plaintiff did have the right to subpoena and
cross-examine Dr. Erlenborn. 20 C.F.R. § 404.926. He did not
avail himself of this opportunity nor did he file a brief as he
was entitled to do under 20 C.F.R. § 404.948. So long as the
Secretary of Health, Education and Welfare establishes
reasonable and fair rules of procedure, he satisfies the
requirements of due process, Richardson v. Perales,
402 U.S. 389 at 400-401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).
The plaintiff submitted three affidavits to the Appeals
Council before he was notified of Dr. Erlenborn's report,
but they were rejected. These affidavits were apparently
from physicians who had treated the plaintiff when he was in
the Army prior to 1953, but they are not in the certified
record. The Appeals Council already had medical reports from
the Army at the time of the plaintiff's discharge in 1953
and had three more recent reports concerning his foot
problems. Therefore we find and conclude that the refusal to
accept the additional but ancient medical evidence tendered
by the plaintiff was not an abuse of discretion, and that
reliance on the written medical reports in the record can
constitute substantial evidence. Richardson v. Perales,
supra, p. 894.
Nor was the fact that the hearing was held in Arlington,
Virginia rather than in Chicago, Illinois a violation of the
plaintiff's constitutional rights. The Social Security
Administration cannot be expected to hold hearings in every
city, town or cross-road where a dissatisfied claimant
happens to live. The plaintiff had the right to engage a
representative in Arlington, Virginia, and also had the
right to file any relevant documents for consideration by
the Appeals Council. As a practical matter, this seems to us
to be a reasonable requirement and well within the holding
of Richardson v. Perales, supra, p. 894. No doubt it would
have been more convenient for the plaintiff to have a
hearing in Chicago, and he did obtain his review here, with
the assistance of competent counsel.
The remainder of the plaintiff's claim relates to the
substantiality of the evidence supporting the decision of
the Appeals Council. Although the Council reached a
conclusion different from that of the administrative law
judge, it does not follow from this that its decision is not
properly supported by the evidence. It is not our function
to decide which of the two administrative tribunals (now
joined by a third in the person of the Magistrate) was
correct in its decision but merely whether the decision is
supported in accordance with the law. We have examined the
recommendations of the Magistrate on this point, beginning
on p. 5 of his Report dated August 19, 1974 and find that
they are correct, if Dr. Erlenborn's report was properly
received and if the plaintiff's three affidavits were
properly rejected. Since we have found against the plaintiff
on both of these latter points, we also find and conclude
that the Report of the Appeals Council was supported by
substantial evidence and is in accordance with the law. The
plaintiff did not carry his burden of showing that he is
unable to do "substantial gainful work which exists in the
national economy." Workman v. Celebrezze, 360 F.2d 877 (7th
Cir. 1966); 42 U.S.C. § 423(d)(2)(A).
It is therefore ordered, adjudged and decreed that the
decision of the Appeals Council of the Social Security
Administration is affirmed and the complaint is dismissed.
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