I-2-5-78.Use of Subpoenas - General
Last Update: 10/8/15 (Transmittal I-2-155)
When it is reasonably necessary for the full presentation of a case, an administrative law judge (ALJ) may issue a subpoena at the request of a claimant or appointed representative (if any), or on his or her own initiative. See 20 CFR 404.950(d), 405.332, and 416.1450(d). An ALJ may issue a subpoena for the appearance and testimony of a witness(es), and for the production of books, records, correspondence, papers, or other documents that are material to an issue at the hearing. For example, an ALJ may find a subpoena 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.
In the Fifth Circuit, if a claimant requests a subpoena for the purpose of cross-examining an examining physician, and the claimant makes the request prior to the closing of the record, the ALJ must issue the subpoena. See Acquiescence Ruling 91-1(5), Lidy v. Sullivan, 911 F.2d 1075 (5th Cir. 1990) – Right to Subpoena an Examining Physician for Cross-examination Purposes – Titles II and XVI of the Social Security Act.
B. Claimant Requests Subpoena
1. Receipt of Request
A claimant has a right to request that an ALJ issue a subpoena, but he or she must make the request in writing at least 5 days before the hearing date. See 20 CFR 404.950(d)(2) and 416.1450(d)(2). If the claimant does not submit the request at least 5 days before the hearing date, the ALJ may deny the request at his or her discretion.
In Region 1, a claimant must submit a subpoena request at least 10 days before the hearing date. See 20 CFR 405.332.
A claimant's request for a subpoena must:
Give the name(s) of the witness(es) or document(s) to be produced;
Describe the address or location of the witness(es) or document(s) with sufficient detail to find them;
State the important fact(s) that the witness(es) or document(s) is expected to prove; and
Indicate why the fact(s) could not be proven without issuing a subpoena.
2. Evaluating the Request
When all other means of obtaining the information or testimony have been exhausted (as described in the following paragraphs), an ALJ will issue a subpoena if:
The claimant or ALJ cannot obtain the information or testimony without the subpoena; and
The evidence or testimony is reasonably necessary for the full presentation of the case.
When evaluating a subpoena request, the ALJ or assisting staff will first review the claim(s) file to determine if the requested information or testimony is already a part of the record. If the requested information or testimony is already part of the record, the ALJ will deny the subpoena request. For denial procedures, see subsection D below. For example, if a claimant requests a subpoena to compel a person to testify at a supplemental hearing, and the record shows that the individual testified at the initial hearing and that the claimant or appointed representative (if any) had the opportunity to cross-examine the individual, the ALJ may deny the subpoena request.
In some cases, the requested information or testimony is not part of the record, but has already been requested or can be developed by hearing office staff. In these situations, the ALJ will delay ruling on the subpoena request until development is completed. If development is completed and it is clear that the usual procedures used to obtain the information or testimony have been unsuccessful, the ALJ will determine whether issuing a subpoena for the requested information or testimony is reasonably necessary for a full presentation of the case.
If the claimant is requesting a subpoena to obtain testimony from an author of a written report, the ALJ must carefully consider whether a cross-examination is required for a full presentation of the case.
C. Subpoena on ALJ's Initiative
Generally, an ALJ will only issue a subpoena on his or her own initiative when an individual has information or can offer testimony that the ALJ determines is reasonably necessary for the full presentation of the case and all other means of obtaining this information or testimony have been exhausted. (See generally the instructions in subsection B above).
Medical experts, vocational experts, and consultative examiners who will not appear voluntarily (i.e., as requested by an ALJ without a subpoena) may be subpoenaed to appear under the same standard applicable to other witnesses. However, an ALJ will usually attempt to obtain testimony from these individuals via video teleconferencing or by telephone.
D. Denying a Subpoena Request
If an ALJ denies a claimant's request for a subpoena, the ALJ must notify the claimant of the denial, either in writing or on the record at the hearing. In either situation, the ALJ will enter the request into the record as an exhibit. If the denial is in writing, the ALJ will also enter the denial notice into the record as an exhibit. Whether on the record or in writing, the ALJ will explain why the ALJ declined to issue a subpoena.