I-2-5-78.Use of Subpoenas — General

Last Update: 9/28/05 (Transmittal I-2-68)

A claimant has a right to request issuance of a subpoena, but the regulations state that he or she must make the request at least 5 days before the hearing date. (20 CFR §§ 404.950(d)(2) and 416.1450(d)(2).)

The ALJ is authorized by law and regulation to issue subpoenas to require production of documentary evidence or testimony when reasonably necessary for the full presentation of the case. The issuance of a subpoena may be necessary when a person having knowledge of a material fact or possession of documentary evidence is reluctant or unwilling to testify or provide the evidence. The ALJ may issue a subpoena on his or her own motion or at the request of a claimant.

A. Issuing a Subpoena on Own Motion

The ALJ must issue a subpoena when an individual has evidence or can offer testimony that the ALJ determines is reasonably necessary for the full presentation of the case, and the ALJ has exhausted other means of obtaining this evidence or testimony. (See I-2-5-78 C., Evaluating Subpoena Requests.)

B. Issuing a Subpoena at the Request of a Claimant

The ALJ must issue a subpoena on a claimant's timely request if the claimant shows that an individual has evidence or can offer testimony that the claimant cannot obtain without the subpoena, the ALJ determines that the evidence or testimony is reasonably necessary for the full presentation of the case, and the ALJ has exhausted other means of obtaining this evidence or testimony. (See I-2-5-78 C., Evaluating Subpoena Requests.) The claimant seeking a subpoena must file a written request. The request must provide:

  • the names of the witnesses or documents to be provided;

  • the address or location of the witnesses or documents with sufficient detail to find them;

  • a statement of the important facts that the witness or document is expected to prove; and

  • the reason why these facts cannot be proven without issuing a subpoena.

NOTE:

MEs, VEs and CE physicians who will not appear voluntarily (i.e., as requested by an ALJ) may be subpoenaed to appear under the same standard applicable to any witness. Attempts should be made to obtain testimony from these individuals via videoconference or telephone conference.

C. Evaluating Subpoena Requests

ALJs must evaluate each subpoena request on its own merits to determine if issuance of a subpoena is reasonably necessary for the full presentation of the case. (Exception: In the Fifth Circuit, when a claimant requests, prior to the closing of the record, that a subpoena be issued for the purpose of cross-examining an examining physician, the ALJ must issue the subpoena. See AR 91-1(5), Lidy v. Sullivan.)

If a claimant requests an ALJ to issue a subpoena to compel a person to provide certain documentary evidence or to testify at a hearing or supplemental hearing, the ALJ or HO staff person the ALJ designates should review the ALJ (HO) file and the exhibit file to determine if they contain the documentary evidence or information the claimant wishes to provide.

  1. If the files contain the documentary evidence or information the claimant wishes to provide, the ALJ may deny the request to issue a subpoena. (See I-2-5-78 D., Denying a Subpoena Request.)

  2. If the files do not contain the documentary evidence or information the claimant wishes to provide, and development for it has not been completed (i.e., development has not been undertaken, or development has been undertaken but the evidence or information has not yet been received, or there are other means of obtaining the evidence or information which have not yet been tried), the ALJ should delay ruling on the subpoena request and undertake any necessary development.

  3. If the files do not contain the documentary evidence or information the claimant wishes to provide, and development for it has been completed (i.e., it is clear that requests previously made for the evidence or information will not provide it, and all other means of obtaining it have been exhausted), the ALJ should determine whether issuance of a subpoena to secure the requested document(s) or witness(es) is reasonably necessary for the full presentation of the case because the document(s) or witness(es) can be expected to prove important facts that cannot be proved without a subpoena. In assessing the importance of requested testimony by the author of a written report, the ALJ should consider whether use of the subpoena and consequent cross-examination are required for a full and true disclosure of the facts.

    • If the ALJ determines that the evidence or information is reasonably necessary for the full presentation of the case, and the requirements of I-2-5-78 B. are met, the ALJ should issue a subpoena in response to the claimant's request.

    • If the ALJ determines that the evidence or information is not reasonably necessary for the full presentation of the case, the ALJ may deny the subpoena request. (See I-2-5-78 D., below.)

NOTE:

The ALJ need not rule on a prehearing or posthearing subpoena request until development has been completed and the case is ready to be scheduled for hearing or supplemental hearing.

D. Denying a Subpoena Request

If an ALJ denies a claimant's request for a subpoena, the ALJ must provide the claimant with written notification of the denial of the request, and enter both the request and the denial notification into the record as exhibits. The denial notification must include rationale that explains why the ALJ declined to issue a subpoena to compel production of documentary evidence or appearance and testimony at a hearing or supplemental hearing.