EFFECTIVE/PUBLICATION DATE: 12/31/91
ACQUIESCENCE RULING 91-1(5)
Whether a claimant for disability insurance benefits and/or supplemental security income payments based on disability has an absolute right, upon request, to have the Secretary issue a subpoena in order that the claimant may cross- examine an examining physician.
Section 205 of the Social Security Act (42 U.S.C. 405), 20 CFR 404.916(b), 404.950(d), 416.1416(b), 416.1450(d), SSR 71-53c.
Fifth (Louisiana, Mississippi, and Texas)
Lidy v. Sullivan, 911 F.2d 1075 (5th Cir. 1990)
This Ruling applies to claims at the disability hearing, Administrative Law Judge and Appeals Council levels.
The plaintiff, Mr. Lidy, filed an application for disability insurance benefits. The report of Dr. Finney, who examined plaintiff following a referral by his worker's compensation insurer, formed the basis of the Administrative Law Judge's finding of no disability.
In order to challenge Dr. Finney's report, the plaintiff sought to subpoena him for cross-examination. The Administrative Law Judge refused the plaintiff's request, but did permit him to submit a set of written interrogatories. The plaintiff then sought to submit a second set of interrogatories to clarify some of Dr. Finney's responses and urged the Administrative Law Judge to require live cross-examination. These requests were denied and the plaintiff's application for benefits was denied. The Administrative Law Judge's decision became the final decision of the Secretary.
The plaintiff filed a civil action in district court. A magistrate recommended that the court grant the plaintiff's motion for summary judgment on the ground that the refusal to permit cross-examination of Dr. Finney constituted a denial of due process. The district court disagreed with the magistrate and found that the Administrative Law Judge had acted within his discretion in denying cross-examination. The plaintiff then appealed the decision to the United States Court of Appeals for the Fifth Circuit.
The Fifth Circuit Court of Appeals interpreted the Supreme Court's holding in Richardson v. Perales, 402 U.S. 389 (1971) to mean that, under section 205(d) of the Social Security Act, entitlement to a subpoena for cross- examination purposes is automatic. Therefore, the court held that once a claimant has requested a subpoena for the purpose of cross-examining an examining physician, the request must be granted.
SSA has interpreted Richardson v. Perales to mandate the issuance of a subpoena only when it is shown that the testimony sought is "reasonably necessary for the full presentation of a case." Therefore, SSA's policy is that a claimant's right to a subpoena is qualified.
Social Security Administration Regulations at 20 CFR 404.950(d) and 416.1450(d) state that when the claimant requests a subpoena, he or she must "state the important facts that the witness or document is expected to prove; and indicate why these facts could not be proven without issuing a subpoena." These sections also state that the Administrative Law Judge may issue a subpoena, "[w]hen it is reasonably necessary for the full presentation of a case."
Current instructions provide that an Administrative Law Judge "may deny the claimant's request to subpoena an individual if the claimant fails to show that the evidence or testimony he or she wishes to obtain from the individual is essential, or that the evidence or testimony cannot be obtained in any other way." An exception to this policy is made when securing expert medical opinion after a hearing. These instructions state that if the claimant objects to the use of interrogatories and requests a supplemental hearing, the Administrative Law Judge must grant the request in such event.
As indicated above, the Fifth Circuit has held that in the Social Security hearings process the right to a subpoena for the purposes of cross-examining an examining physician is absolute.
This Ruling applies only to cases involving claimant for disability insurance benefits and/or supplemental security income payments based on disability who reside in Louisiana, Mississippi, or Texas at the time of the proceedings at the disability hearing, Administrative Law Judge, or Appeals Council levels. In such cases, 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 adjudicator must issue the subpoena.
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