Vito A. Lonzollo v. Caspar W. Weinberger, in His Capacity as Secretary of the Department of Health, Education and Welfare

FAIRCHILD, Chief Judge.

This appeal presents the questions whether an applicant for Disability Insurance Benefits was denied his right to a hearing when the HEW Appeals Council, reversing on sua sponte review a decision of an Administrative Law Judge (ALJ) favorable to the applicant, considered evidence that was not presented at the hearing before the ALJ; and whether the applicant should be deemed to have waived an adequate opportunity to refute such evidence. The district court, affirming the decision of the Appeals Council, dismissed the complaint. We reverse.

On October 13, 1971 appellant…