8th U.S. Circuit Court of Appeals rules right to cross-examine

Social Security claimants do not have a constitutional right to subpoena or cross-examine the doctors consulted by administrative law judges in disability hearings, the 8th U.S. Circuit Court of Appeals said.

Wednesday's decision, by a unanimous panel, rejects dicta in an 18-year-old 8th Circuit decision that said due process gives Social Security claimants an absolute right to cross-examine the reporting doctors.

Three other circuits have interpreted the 8th Circuit's 1990 Coffin v. Sullivan decision as adopting an absolute right to cross- examine a doctor, but two of those same circuits rejected the argument that such a right exists.

Charles Miller, a spokesman for the Department of Justice, said the department is pleased "because the ruling by the 8th Circuit upheld the constitutionality of the current Social Security regulations."

The regulations do not confer upon the claimants a right to subpoena a reporting physician, although they do allow an administrative law judge or a member of the Appeals Council to issue a subpoena when "it is reasonably necessary for the full presentation of a case."

The claimant, Eric Passmore, didn't lose outright. The 8th Circuit remanded his case to the U.S. District Court in Springfield to determine whether the administrative law judge's decision to deny benefits is supported by substantial evidence. It'll be up to Passmore and his lawyer, Jonathan Pitts, of Archer Lassa & McHugh in St. Louis, to prove that it wasn't.

Explaining its refusal to follow the precedent set in Coffin, the 8th Circuit panel said the earlier decision did not specifically establish an absolute right to cross-examination. Coffin, instead, referred to an "opportunity to cross-examine," the 8th Circuit said. That phrase could mean that claimants have the right to cross- examine reporting physicians when they've been subpoenaed or that claimants have the right of cross-examination if the administrative law judge deems it necessary, the court said.

Even if Coffin established an absolute right, it's merely dicta and need not be followed, the court said.

The 5th Circuit, which holds there is an absolute right to subpoena reporting physicians, based its decision on Richardson v. Perales, a 1971 U.S. Supreme Court decision. The Perales court said decisions adverse to claimants may be based on written medical reports by examining physicians "when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician."

But the Supreme Court didn't say whether this right came out of the Due Process Clause of the Fifth Amendment or out of statute or regulation, the 8th Circuit said Wednesday. The appellate court reasoned a reference to the Social Security regulations in the Perales decision means the right to subpoena and cross-examine doctors derives from the Social Security Administration's regulations.

Pitts admitted the government had a persuasive argument when it said the standards in place for issuing subpoenas would not have been abrogated by the Supreme Court's Perales decision. On the other hand, he said, "the plain language of Perales ... presumes that the cross-examination would take place because that's the best method to test the opinions of the doctors."

The administrative law judge admitted at a hearing that certain doctors have biases, Pitts said.

Without a transcript of cross-examination, Pitts said, "my point to the judges at the oral argument was, by the time a case gets up to federal court, there's no way for a judge to know of the reputation of a doctor in Springfield."

The appellate courts that found due process doesn't give claimants the absolute right of cross-examination relied not on Perales but on Mathews v. Eldridge, a 1976 U.S. Supreme Court decision that set out a balancing test to determine whether the process given claimants is sufficient under the Due Process Clause.

The balancing test requires courts to weigh a claimant's private interest and the risk of the erroneous deprivation of that interest against the government's interest, which includes the fiscal and administrative burdens that would be incurred, the court said.

The 8th Circuit accepted the reasoning of the 6th Circuit's 1996 Flatford v. Chater decision. The 6th Circuit said the need to cross- examine reporting physicians isn't as important at Social Security hearings, which are nonadversarial proceedings, than it would be in adversarial proceedings. The 6th Circuit also said there isn't a great "danger of inaccurate medical information or biased opinions" warranting "cross-examination upon demand."

And the burden on the Social Security Administration would be significant, the Flatford court said. That burden includes costs associated with travel expenses and witness fees, and it takes into account the prospect that fewer doctors would be willing to advise administrative law judges if they were subject to subpoena.