Eric Winfield, a Minor, by and Through His Natural Guardian, Susan R. Winfield v. F. David Mathews, Secretary of Health, Education and Welfare ( 1978 )

OPINION OF THE COURT

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.¹ 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. Win-field 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).² 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).³ 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. Win-field’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. Win-field’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. Win-field 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, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (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. Win-field 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 testified that in her opinion Eric would not be able to accept many jobs because of the dangers of accidents and contamination. However, she expected to send Eric to school and hoped that as he grew older doctors could successfully construct a replacement for his missing tear duct.

Medical reports of a clinical and diagnostic nature were submitted by two attending ophthalmologists, including one doctor who supervised a surgical effort to repair Eric’s eye. These reports indicated that Eric’s major problems were excessive tearing and infection. For the latter, doctors prescribed a topical antibiotic. Surgery at Eric’s tender young age was inadvisable, although when he grew somewhat older the doctors expressed hope that an operation could regulate Eric’s eye’s tearing mechanism. In the shorter term, one doctor suggested a reduction in excessive tearing from autoregulation of tear function. The remainder of the doctors’ reports indicated a normal eye and normal vision. Eric’s visual acuity was good and funduscopic findings revealed no troublesome conditions, such as retinitis proliferans, exudates or hemorrhages and rubeosis iridis.

The medical adviser designated by the Social Security Administration to review Eric’s medical file did not personally examine Eric. Basing his conclusions solely on the medical data submitted to him, the medical adviser determined that Eric’s visual efficiency, even as a result of excessive tearing, was far higher than levels required for disability under the listed impairments in the regulations. He confirmed the likelihood of a reduction in excessive tearing due to autoregulation of the tear function. He also added that the risks of infection would diminish, as Eric’s eye would develop an immunity. No muscle balance or visual field problems were indicated. Eric’s right eye was apparently unaffected by the absence of the lacrimal puncta in the left eye and appeared normal in all respects.

Based on the foregoing evidence, the hearing examiner and the Appeals Council concluded that despite the congenital absence of the lacrimal puncta in one eye, Eric’s impairment was not of comparable severity to those listed impairments deemed disabling by regulation. This conclusion is supported by substantial medical evidence on the record as a whole. The medical records of the two attending physicians and the evaluation of the medical adviser confirm that Eric’s central visual acuity, field of vision, muscle function and visual efficiency were not as severely impaired as required by the categories of impairments described in the Appendix to the SSI disability regulations. 20 C.F.R. § 2 of Appendix 1 to §§ 416.901 et seq. (1977). Moreover, no medical expert averred that Eric’s missing tear duct constituted either a disability or a serious impairment impeding a young boy’s normal activities.

Mrs. Winfield suggests in her brief (pp. 16-17) that the hearing examiner should have alternatively considered Eric’s eye impairment as comparably severe as Meniere's Syndrome and Petit Mai Epilepsy.⁴ These latter illnesses impair other organs of the body, interfering with physical capacity to a far more substantial extent than does a tearing eye.⁵ Thus, we cannot conclude that the hearing examiner erred in failing to make a specific finding whether Eric’s susceptibility to blurred vision and infection was as severe as either Meniere’s Syndrome or Petit Mai Epilepsy.

It should be noted that this claimant’s case is not one where the only evidence supporting a denial of disability benefits is provided by the non-examining designated physician’s report. In fact, the medical adviser’s findings in this case corroborate, rather than contradict, the reports filed by the attending ophthalmologists who had previously treated Eric.⁶ Neither physician in this case expressed a conclusion that Eric’s eye impairment was comparably severe to the SSI regulation’s listed impairments, nor did either doctor suggest that Eric was physically disabled to an extent equivalent to an adult disabled from securing gainful employment. Thus, this case substantially differs on its facts from, those cases where other courts of appeals have reversed administrative denials of disability benefits because the sole evidence supporting such denials was from the non-examining medical adviser who contradicted attending physicians’ opinions as to the severity of disability.⁷ Compare Sullivan v. Weinberger, 493 F.2d 855 (5th Cir. 1974), cert. denied, 421 U.S. 967, 95 S.Ct. 1958, 44 L.Ed.2d 455 (1975) (Secretary’s reliance on medical adviser’s opinion upheld), and West v. Weinberger, No. 73-2522 (4th Cir., Dec. 5, 1974) (same), with Allen v. Weinberger, 552 F.2d 781 (7th Cir. 1977) (Secretary’s reliance on medical adviser’s report reversed); Martin v. Sec’y of Dep’t of HEW, 492 F.2d 905 (4th Cir. 1974) (same), and Landess v. Weinberger, 490 F.2d 1187 (8th Cir. 1974) (same).⁸ Cf. Richardson v. Perales, 402 U.S. 389, 408, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

For the foregoing reasons, the district court judgment will be affirmed, with each side to bear its own costs.

1 . We believe that the dissent overlooks the medical reports of the ophthalmologists who personally examined Eric Winfield and that were submitted in evidence. Dr. Robert Rupp submitted two reports which detailed the findings of his examination and treatment of Eric from April 2, 1973, to February 18, 1975. Claimant also introduced the medical reports of Dr. Paul Grant, who described the results of a surgical probe performed on October 29, 1973, to determine whether an operation could have been performed to repair Eric’s tear duct. The record also reveals medical reports from the staff of the Eye and Ear Hospital in Pittsburgh, Pennsylvania, where the. surgical probe was conducted. All of these reports were before the hearing examiner and the Appeals Council.

2 . The codified SSI disability regulations were formally adopted July 29, 1975, after the hearing examiner’s decision. However, perusal of the administrative transcript reveals that these same regulations were in force as Regulation No. 16 at the time of the hearing. See Tr. 118-123.

3 . It is of note that Mrs. Winfield was advised of the necessity of a medical adviser reviewing “every piece of pertinent medical evidence” in order to secure “his determination to find equivalence or not equivalence” (Tr. 123; see also Tr. 164-67).

4 . Meniere’s Syndrome, if severe, qualifies as a listed impairment in the SSI regulations, 20 C.F.R. § 2.07 of Appendix 1 to §§ 416.901 et seq. (1977). Petit Mai Epilepsy, if substantiated by EEG and if occurring more frequently than once weekly in spite of prescribed treatment, also qualifies as a listed impairment, id. § 11.03 of Appendix 1.

5 . Meniere’s Syndrome involves a disorder of the inner ear characterized by symptoms of severe vertigo or dizziness, ear noises, fluctuating hearing loss, nausea and vomiting. According to a medical encyclopedia excerpt submitted to this court for our information by Mrs. Winfield as an appendix to her brief. Meniere’s Syndrome may in some circumstances be so severe as to be disabling, as for example where attacks of vertigo persist for weeks, rendering even the simplest activities impossible. Clark & Cumley, The Book of Health — A Medical Encyclopedia for Everyone, 588, appellant’s Exhibit No. 1 attached to appellant’s brief. Petit Mai Epilepsy involves a neurological disorder characterized by recurrent and unpredictable seizures. Id. While symptoms vary in severity, the SSI regulations require that attacks recur frequently and that they be accompanied by alteration of awareness or loss of consciousness and antisocial behavior. Eric’s excessive tearing and occasional infections do not seem comparably severe.

6 . The Supreme Court, in Richardson v. Perales, 402 U.S. 389, 408, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), explicitly approved the general practice of hearing examiner’s reliance on the expert testimony of medical advisers who do not personally examine the claimant but, instead, interpret the existing medical records. The dissent reads Perales as requiring non-examining medical advisers to appear before the hearing examiner and be subject to cross-examination. We do not think Perales so sharply constrains the use of medical advisers. It is true that in that particular case the medical adviser was apparently used to explain the medical significance of evidence to the layman examiner. However, the Supreme Court did not restrict medical advisers to serving as translators of medical evidence into lay terms. Medical advisers in fact routinely perform, as evidenced in the instant case, a different function mandated by administrative regulations — determining whether a claimant’s condition was medically equivalent to listed impairments. The specific regulation in question, 20 C.F.R. § 416.905(b), does not require either that the medical adviser examine the claimant or that he personally appear at the hearing. The regulation requires only that the medical judgment be based on clinical evidence.

It should be noted that Perales confirmed the breadth of the congressionally delegated power to the Secretary to establish hearing procedures so long as they are “fundamentally fair.” 402 U.S. at 399-401, 91 S.Ct. 1420. The Fifth Circuit Court of Appeals in Sullivan v. Weinberger, 493 F.2d 855 (5th Cir. 1974), cert, denied, 421 U.S. 967, 95 S.Ct. 1958, 44 L.Ed.2d 455 (1975), similarly accorded great weight to the Secretary’s statutory authority to prescribe regulations, as it affirmed a decision denying disability benefits which was based on a report of a medical adviser who neither examined the claimant nor appeared to testify at the administrative hearing. Id. at 859-60. Thus, we believe that Perales does not forbid the administratively authorized practice of using an independent, non-examining medical adviser to review the reports of examining medical experts and furnish a medical judgment “relative to the question of medical equivalence.” See 20 C.F.R. § 416.905(b).

7 . A holding representative of judicial limitations of agency reliance on the medical adviser’s report is offered by Judge Winter in Martin v. Sec’y of Dep’t of HEW, 492 F.2d 905, 908 (4th Cir. 1974):

“A non-examining physician’s opinion cannot, by itself, serve as substantial evidence supporting a denial of disability benefits when it is contradicted by all of the other evidence in the record.”

The administrative record in the instant case presents quite a different picture of consistency of the medical evidence rather than wholesale contradiction.

8 . The dissent interprets the above-cited cases as standing for the proposition that reports of non-examining physicians cannot constitute substantial evidence unless the physician is available for cross-examination. However, in none of these cases was the presence or absence of the medical adviser for cross-examination decisive. Rather, the determinative factor was the strength of doctors’ opinions and findings which contradicted those offered by the medical advisers. In Allen v. Weinberger, supra, the appeals courts reversed a denial of disability benefits, according substantial weight to an opinion by the surgeon who operated on the claimant and monitored his post-operative recovery. In Martin v. Sec’y of Dep’t of HEW, supra, and Landess v. Weinberger, supra, private examining physicians testified that the claimants were disabled. In the instant case, no physician ever opined that Eric was disabled. Thus, we believe that the three cases relied on by the dissent are consistent with the result we reach in this case.