Audon Vidal, Jr. v. Patricia R. Harris, Secretary of Health and Human Services

637 F.2d 710 Audon VIDAL, Jr., Plaintiff-Appellant, v. Patricia R. HARRIS, Secretary of Health and Human Services, Defendant-Appellee. No. 78-1547. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 13, 1980. Decided Jan. 26, 1981. Roy F. Malahowski, Bakersfield, Cal., for plaintiff-appellant. James E. White, Fresno, Cal., on brief; Dennis J. Mulshine, San Francisco, Cal., argued for defendant-appellee. Appeal from the United States District Court for the Eastern District of California. Before CHAMBERS and GOODWIN, Circuit Judges, and ORRICK, * District Judge. ORRICK, District Judge. The two major questions raised by appellant, Audon Vidal, Jr., in his appeal from the district court's judgment granting the motion for summary judgment of the Secretary of Health and Human Services 1 (the "Secretary"), denying him disability benefits, and denying his motion for summary judgment are: (1) that the findings of the Secretary that he is not disabled for purposes of receiving benefits is not supported by substantial evidence, and (2) that the case should be remanded for further hearing because he was not represented by counsel and because the administrative law judge…

concurring and dissenting:

I concur with the result herein, and agree that Cox v. Califano, 587 F.2d 988 (9th Cir. 1978), requires the case be remanded for proceedings with proper inquiry and exploration of all the relevant facts.

A new factual record will be developed upon remand. The conclusions of the administrative law judge will be measured against the new record. For this reason, I would not reach the question of “substantial evidence” from the administrative law judge’s conclusions below.

The two major questions raised by appellant, Audon Vidal, Jr., in his appeal from the district court’s judgment granting the motion for summary judgment of the Secretary of Health and Human Services 1 (the “Secretary”), denying him disability benefits, and denying his motion for summary judgment are: (1) that the findings of the Secretary that he is not disabled for purposes of receiving benefits is not supported by substantial evidence, and (2) that the case should be remanded for further hearing because he was not represented by counsel and because the administrative law judge did not adequately inform him of his right to an attorney and did not fairly conduct the hearing to protect his interest. We find that the administrative law judge failed to “scrupulously and conscientiously probe into, inquire of and explore for all relevant facts” in accordance with the very heavy burden we imposed upon him in Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978), when the plaintiff is not represented by counsel, and we, accordingly, reverse and remand the case to the court below to conduct further proceedings not inconsistent with this Opinion.

I

On October 22, 1975, Vidal applied for…