Hoyle, James L.

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Journal of the National Association of Administrative LawJudiciaryVolume 16 | Issue 2 Article 910-15-1996Note: Flatford v. Chater: No Absolute Due ProcessRight to Subpoena a Physician Providing Post-Hearing Evidence at a Social Security DisabilityHearingJames L. HoyleFollow this and additional works at: http://digitalcommons.pepperdine.edu/naaljPart of the Administrative Law Commons, Disability Law Commons, and the Social Welfare LawCommonsThis Note is brought to you for free and open access by the School of Law at Pepperdine Digital Commons. It has been accepted for inclusion in Journalof the National Association of Administrative Law Judiciary by an authorized administrator of Pepperdine Digital Commons. For more information,please contact Kevin.Miller3@pepperdine.edu.Recommended CitationJames L. Hoyle, Note: Flatford v. Chater: No Absolute Due Process Right to Subpoena a Physician Providing Post-Hearing Evidence at aSocial Security Disability Hearing, 16 J. Nat’l Ass’n Admin. L. Judges. (1996)available at http://digitalcommons.pepperdine.edu/naalj/vol16/iss2/9NOTE: FLATFORD V. CHATER:NO ABSOLUTE DUE PROCESS RIGHT TO SUBPOENA APHYSICIAN PROVIDING POST-HEARING EVIDENCE ATA SOCIAL SECURITY DISABILITY HEARINGJames L. Hoyle*I. IntroductionThis decision of the United States Court of Appeals for theSixth Circuit concerns the discretion to deny a due process entitlementto a disability claimant seeking a subpoena for a physician providingpost-hearing evidence expands upon its previous decision in Calvin v.Chater' where the court determined an absolute right did not exist toa subpoena in order to conduct an oral examination of the claimant'streating physician at the hearing.2 This line of decisions continues toconflict with other circuits,3 and the Supreme Court needs to resolvethis issue.The United States Court of Appeals, Sixth Circuit, in Flatfordv. Chater4 affirmed the district court's decision to dismiss the casebased upon the magistrate's recommendation, and concluded that theadministrative law judge had not abused his discretion in refusing toissue a subpoena of a physician. The Sixth Circuit held: (1) theCommissioner of Social Security can base his decision on the evidencein the record and is not limited to the evidence obtained in the hearing,and, (2) the administrative law judge did not abuse his discretion by*The author is an administrative law judge with the Department of AdministrativeHearings, Office of the Illinois Secretary of State and a student at Loyola UniversityChicago School of Law.173 F.3d 87 (6th Cir. 1996). See, Oppenheim, Note, Calvin v. Chater, 15J.N.A.A.L.J. 143 (1996).2Id. at 93.3The Circuits in the following cases have relied upon Richardson v. Perales andconcluded that social security claimants have an absolute right to subpoena personsproviding evidence: Lidy v. Sullivan, 911 F.2d 1075, 1077 (5th Cir. Tex. 1990), Coffin v.Sullivan, 895 F.2d 1206 (8th Cir. Iowa 1990), Townsley v. Heckler, 748 F.2d 109 (2d Cir.N.Y. 1984), Demenech v. Secretary of HHS, 913 F.2d 882,884 (11th Cir. 1990), Wallace v.Bowen, 869 F.2d 187, 193 (3rd Cir. 1988) and Lonzollo v. Weinberger, 534 F.2d 712 (7thCir. 1976),93 F.3d 1296 (6th Cir. 1996).Winter 1996 Due Process Right To Subpoena A Physician 311denying the claimant's request to subpoena and cross-examine areporting physician questioned by the judge after the hearing.' ThisNote examines this second holding.6II. BackgroundMr. Flatford, who suffered from coronary artery disease, appliedfor Social Security disability benefits and supplemental income benefitson March 7, 19837 Flatford's claim was denied and he reapplied onOctober 2, 1987.8 In a decision issued July 24 1989, Flatford wasdetermined to be disabled as of December 1, 1987.1On September 1, 1990, the Social Security Administrationreopened Flatford's 1983 application pursuant to his request followingthe decision in Samuels v. Heckler. " Prior to reopening the Hearing,the AU submitted interrogatories to a cardiologist and offeredFlatford's attorney the opportunity to submit his own interrogatories. "Flatford's attorney did not submit any questions at that time, but herequested a copy of the responses and reserved the right to cross-examine the physician after obtaining the responses. "A hearing was held on May 6, 1991, and the AU submitted asan exhibit the responses made by the physician. 3 Flatford's attorney5Flatford 93 F.3d at 1307.6Id. at 1302, citing Lawson v. Secretary of HUS, 688 F.2d 436 (6th cir. 1982). Thecourt held that post hearing evidence was permitted under the Secretary's statutoryauthority to conduct additional proceedings under 42 U.S.C. § 405(a) and (b).7Id. at 1297.81d.91d.10668 F. Supp. 656 (W.D.Tenn. 1986). In Samuels, a class of claimants excludedfrom disability and supplemental security income benefits on a basic of an unlawful policystatement and ruling, were entitled to a redetermination of their cases under new standardsrequiring consideration of the degree that their impairment interfered with ability to work.These claimants received notification by certified mail that they had a right to aredetermination and the instructions on the procedures to be used.1 2Flatford, 93 F.3d at 1298.21d. at 1298.131d. at 1298. Pursuant to the open file policy of Social Security these shouldhave been available earlier to the attorney.XVI Journal of the National Association of Administrative Law Judges 312had not received a copy of the responses prior to the hearing so the ALJagreed to submit further interrogatories to the physician subsequent tothe hearing.' 4Flatford's attorney submitted two requests for a supplementalhearing to cross-examine the physician. The AU denied the requestedhearings but permitted Flatford to submit additional interrogatories. 5The AU based his denial upon his interpretation of Social SecurityRegulation 20 C.F.R. § 404.950(d)(1) and (d)(2) which provides theAU with the discretion to issue a subpoena where reasonably necessaryfor the full presentation of a case and upon a showing by the claimantthat the specified facts could not be proven without issuing asubpoena.'6 The AU determined that Flatford's attorney failed to makea showing as to why the facts regarding Flatford's health could not beobtained through interrogatories. "Flatford submitted additional interrogatories on September 17,1991, however, he again requested cross-examination because the AUedited and drdeted some of the questions submitted and some answerswere unresponsive."8The AL did not respond to the renewed request for a subpoena,but he denied Flatford's claim 9 on December 21, 1991. Flatfordappealed the denial and the Appeals Council remanded the case becausethe AU failed to respond to Flatford's renewed request for asubpoena.2" The Appeals Council instructed the AU to permitadditional interrogatories or to explain why they were not warranted.2'Flatford submitted additional interrogatories and again renewed hisrequest for cross-examination. The AU submitted the interrogatories141d151d.'61d. Flatford's attorney indicated his reasons for needing cross-examinationwere that the answers provided by the doctor during direct cross examination would directhis next question and that he was not furnished with Dr. Saunders' responses until the dayof the May 6 hearing despite his efforts to contact the Office of Health Administration tosee if the responses had been received.71Id.19Id. at 1299.201d.Winter 1996 Due Process Right To Subpoena A Physician 313but instructed the physician to disregard two questions.22On February 1, 1993, after receiving the physician's latestresponse, Flatford once again requested a supplemental hearing and anopportunity to cross-,:xamine the reporting physician. 23 The ALJdenied Flatford's request because he believed the renewed request didnot seek material facts which have not already been proved in previousinterrogatories 4On June 22, 1993, The ALJ once again denied the claim afterfinding that Flatford had the capacity to perform sedentary work andthat he was not disabled. The Appeals Council denied review onOctober 26, 1993, and the decision became final.25Flatford filed suit in federal court on December 27, 1993. OnFebruary 2, 1995, a magistrate recommended that the Commissioner'sdecision be affirmed because of the discretion granted to the ALJ under20 C.F.R. § 404.950(d)(1). 26  The district court accepted therecommendation of the Magistrate and determined the ALJ had notabused his discretion.27 Flatford appealed.III. Discussion and AnalysisA. Issue Raised on AppealThe issue raised on appeal was whether a social securitydisability claimant has an absolute right under due process to subpoenaand cross-examine a medical advisor who provides a post-hearingreport.28 Impliedly raised, as well, was the scope of discretion to refuseissuance of a subpoena.Flatford argued that the discretion granted to the ALJ pursuant22 Id.2 3 1d.2 41d.251Id.26/d The district court's decision is unpublished.2 71d.28 d.XVI Journal of the National Association of Administrative Law Judges 314to 20 C.F.R. § 404.950(d) violated his right to procedural due process,because there is an absolute right to cross-examination in a socialsecurity hearing. To support his contention Flatford cited Richardsonv. Perales"9 and decisions of six other Circuits of the United StatesCourt of Appeals.3"The Commissioner argued that the appellate court should followits decision in Calvin v. Chater," where the court determined that anAL's discretion to issue subpoenas under 20 C.F.R. § 416.1450(d)(1) 32did not violate the procedural due process rights of a claimant ofsupplemental security income seeking a, subpoena for a physician whosubmitted a prehearing report.3B. The Appellate Court's Decision on Due Process. 4I. Due Process Requirements Met When Cross-Examination Available Where ReasonablyNecessary.The Sixth Circuit relied on Richardson v. Perales"5 and assumedthat Flatford has a property interest in the benefits he claims. 3629402 U.S. 389, 410, 91 S.Ct. 1420, 1431-32, 28 L.Ed.2d 842 (1971).30Supra Note 3.3173 F.3d 87 (6th Cir. 1996.)32This regulation involves the procedures for obtaining a subpoena by a claimantseeking supplemental security income and is identical to the procedures for issuingsubpoenas under 20 C.F.R § 404.950(d)(1) to claimants seeking disability benefits. Itstates in relevant part: "When reasonably necessary for the full presentation of a case, anadministrative law judge...may, on his or her own initiative or at the request of a party,issue subpoenas."33Flatford, 93 F.3d at 1301, citing Calvin, 73 F.3d at 92-93.34Before addressing the due process issue, the appellate court addressed whetherthe Commissioner can make a decision based upon the evidence in the record, rather thanonly on the evidence "adduced at the hearing"under 42 U.S.C. § 405(b)(1). The appellatecourt determined the Commissioner's broad interpretation of 42 U.S.C. § 405(b) was notarbitrary and capricious because the commissioner was also given broad regulatoryauthority and the authority to conduct other hearings and investigation under 42 U.S.C. §405(a) and (b).35Perales, 402 U.S. 389, 91 S.Ct. 1420.36Flatford, 93 F.3d at 1305.Winter '996 Due Process Right To Subpoena A Physician 315Furthermore, the court agreed with Perales that "due process requiresthat a social security hearing be 'full and fair."' 37The Sixth Circuit considered several factors related to having anabsolute right to subpoena and cross-examine every witness. Thecourt weighed the burdens an absolute right to subpoena anid cross-examine would have on the witnesses and the administrative systemagainst the unlikely danger of inaccurate medical information andbiased opinions that would result in a claimant being wrongly deniedbenefits.38 The court reasoned that the nonadversarial nature of socialsecurity adjudications makes the need to cross-examine every reportingphysician unnecessary and that the use of interrogatories provided ameaningful opportunity to Flatford to present all of his evidence and toconfront any contrary evidence.39 The court concluded that by havingcross-examination available where reasonably necessary to the fulldevelopment of ihe case, the due process requirements are met.4011. Discretion: A Close Call!While the Sixth Circuit concluded the ALJ had not abused hisdiscretion by denying the subpoena to Flatford, it noted that itsconclusion was a close call. 4' The court acknowledged that there is a37 Id., citing Perales, 402 U.S. at 401-02, 9i S.Ct. at 1427. While the SixthCircuit agreed with Perales that the hearing must be "full and fair," the Sixth Circuitbelieved that Perales failed to provide the complete answer regarding whether the claimantmust have cross-cxamination in order for the hearing to be "full and fair."38Id. at 1306.391d411Id at 1307.41The Sixth Circuit made its conclusion despite contrary case law. WilliamAllen, Flatford's attorney, provided various examples of cases concluding that an ALJabused his discretion by denying a subpoena. Those cases are: Cowart v. Schweiker, 662F.2d 731 (1! th Cir. 1981 )(ALJ's decision based upon post-hearing reports invalidatedwhere claimant not afforded an opportunity to cross-examine.), Demenech v. Sec. of theDept. of Health and Human Services, 913 F.2d 882 (11 th Cir. 1990)(cross-examination isof extraordinary utility where the ALJ substantially relies upon post-hearing medicalreport.), Solis v. Schweiker, 719 F.2d 301 (9th Cir. 1983)(to show bias, interrogatories arean inadequate substitute for cross-examination.) Souch v. Califano, 599 F.2d 577 (4th Cir,1979)(denial of request for subpoena for reporting physicians violates due process whenXVI Journal of the National Association of Administrative Law Judgesdanger that the claimant may not have the opportunity to cross-examinea physician when the AU obtains post-hearing evidence." The courtconsidered three factors that may prevent the claimant from having theopportunity to ross-examrine. The first factor was whether the claimantmay be discouraged from seeking a supplemental hearing because ofthe additional expense, inconvenience and delayed decision.43Secondly, the court considered the number of questions not answeredby the physician combined with the interrogatories that were withheldby the AL." The final factor was whether the AU abandoned his roleas an impartial decision maker or failed to aid the claimant in the fulldevelopment of the record. 5Upon considering these factors, the Sixth Circuit concluded thatFlatford's attorney was very successful in gathering information fromthe physician with the interrogatories and that more precisely draftedinterrogatories may have solved the problem.46 Finally, the courtconcluded that the record did not reflect that the AU had abandonedhis role as an impwstial decision maker or failed in his duty to aid theALJ substantially relies on those physicians' reports.). Telephone interview with WilliamAllen, Rural Legal Services of Tennessee. (November 6, 1996.) (hereafter "AllenInterview").431d. It should be noted the claimant was being represented by William Allen,Rural Legal Services of Tennessee.44d. The majority of the questions originally excluded by the AL weresubsecuently sent to the physician. Some of these questions related to the instructionsprovided by Social Security to the physician explaining how to answer the interrogatories.Furthermore, the issue remains regarding the non-responsive answers by the physician tointerrogatories. For exaniple, the physician responded initially that he had reviewed thewhole record. However, when responding to subsequent questions relating to reports onclaimants with similar symptomatology, he indicated he could not answer these questionsbecause the reports were not in the record, when in fact they were. Cross-examination mayhave proved very helpful under such circumstances to discre lit the physician ordemonstrate bias. Indeed, the substance of the unanswered questions should have beengiven more consideration by the Sixth Circuit rather than the number left unanswered.Allen Interview, supra note 41.45Id,4 6Id. at 1307. While the court noted that more precisely drafted interrogatoriesmay have solved the problem, Mr. Allen advises that an opportunity to provide additionalinterrogatories has not been provided. Allen Interview, supra note 41.316Winter 1996 Due Process Right To Subpoena A Physicia.9 317claimant in the full deveiopment of the record.47IV. ConclusionWhile the conclusion made by the Sixth Circuit is the minorityopinion, it is a sound sohttion co this issue and a logical extensioc, tothe decision rendered by the Sixth Circuit in Calvin v. Chater Asdecided in Flatford v. Chater, there is no absolute right to subpoena aphysician providing post-hearing evidence, whereas in Calvin there isno absolute right to subpoena in order to conduct an oral examinationof the treating physician at the hearing Both decisions affirm an AL'sdiscretion under similar regulations to issue subpoenas when it isreasonably necessary for the full presentation of a case.However, as noted by the Sixth Circuit in the instant case, it wasa close call whether the ALJ abused his discretion in the case at bar.While the Sixth Circuit's conclusion that an ALJ has the discretion toissue subpoenas where reasonable, its conclusion regarding abuse ofdiscretion in the instant case is far less supportable.. An opportunityt j cross-examine the reporting physician should have been grantedconsidering the significance of the interrogatories left unanswered andbecause the reporting physician's credibility was seriously at issue.Indeed, the most serious credibility problem for an expert winess whogives an opinion regarding a set of documents, concerns that expert'sfarniliarity with important information in the documents. Since thepiysician demonstrated a lack of knowledge of contents of the file,cross examination to determine the impact, or not, of the overlookeddata on his conclusions appears critical. Anything less appears a denialof due process.Many questions remain, aot only because there exists a splitamong the circuits, but also because it remains unclear how muchdiscretion an ALJ should be allowed. The Supreme Court shouldaffirm the AL's discretion to issue subpoenas where reasonablynecessary, however, while considering this close call on discretion, itXVI Journal of the National Association of Administrative Law Judges 318should establish the standards for the AL's discretion, particularlywhen guidance exists to impeach the reliability of expert medicalopinion.

Note: Flatford v. Chater: No Absolute Due Process Right to Subpoena a Physician Providing Post-Hearing Evidence at a Social Security Disability Hearing

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Note: Flatford v. Chater: No Absolute Due Process Right to Subpoena a Physician Providing Post-Hearing Evidence at a Social Security Disability Hearing

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