403 F2d 221 Hoss v. W Gardner

403 F.2d 221

Stella D. HOSS, Appellant,
John W. GARDNER, Secretary of Health, Education and Welfare, Appellee.

No. 12399.

United States Court of Appeals Fourth Circuit.

October 31, 1968.

David H. Frackelton, H. E. Widener, Jr., and Widener, Widener & Frackelton, Bristol, Va., on brief for appellant.

William C. Breckinridge, Asst. U. S. Atty., on brief for appellee.

Before HAYNSWORTH, Chief Judge, BRYAN, Circuit Judge and McMILLAN, District Judge.


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The Secretary of Health, Education and Welfare denied the application of Stella D. Hoss for the establishment of a period of disability under § 216(i) of the Social Security Act, 42 U.S.C. § 416(i), and for disability insurance benefits under § 223, 42 U.S.C. § 423. Thereupon she filed suit in the District Court for a review and reversal of this decision. The motion of the Secretary for summary judgment was granted. On this appeal, she assigns as error the action of the District Court in refusing to remand the case to the Secretary to take additional evidence.


Appellant asserts that "it is fair to presume" that there existed additional medical reports in an earlier but unsuccessful application by her for Social Security benefits, that these were relevant in her present proceeding yet they were not considered by the hearing examiner in denying her last application. She is unable to designate any particular reports, simply suggesting that such papers were adduced in the prior hearing. Here the Secretary has certified the record to us as complete; it does not include the reports which the applicant now thinks might have been at hand in the other case. She was represented by counsel in the instant hearing and no request was made for any papers not now in the record.


In these circumstances we see no justification for the desired remand. The District Judge reviewed the evidence before the Secretary, and in a written opinion accompanying the summary judgment, he points out that the Secretary's decision was supported by ample evidence. On our canvass of the record we see no basis for disturbing the decision of the District Court. The dismissal will be sustained.