Passmore v. Astrue

• Decision Date: 09 July 2008
• Docket Number: No. 07-3078.,07-3078.
• Citation: 533 F.3d 658
• Parties: Eric PASSMORE, Appellee, v. Michael J. ASTRUE, Commissioner of Social Security, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

533 F.3d 658

Eric PASSMORE, Appellee, v. Michael J. ASTRUE, Commissioner of Social Security, Appellant.

No. 07-3078.

United States Court of Appeals, Eighth Circuit.

Submitted: April 17, 2008.

Filed: July 9, 2008.

Robert D. Kamenshine, U.S. Dept. of Justice, Civil Div., Washington, DC, argued (Jeffrey S. Bucholtz, Acting Asst. Atty. Gen., William Kanter, U.S. Dept. of Justice, Civil Div., on the brief), for appellant; Kristi A. Schmidt, Acting Chief Counsel, Jennifer L. Mills, Asst. Regional Counsel, Region VII, Social Sec. Admin., Kansas City, MO, of counsel.

Jonathan B. Pitts, St. Louis, MO, argued (Larry J. Pitts, Springfield, MO, on the brief), for appellee.

Before GRUENDER, BRIGHT and BENTON, Circuit Judges.

GRUENDER, Circuit Judge.

The Commissioner of Social Security ("Commissioner") appeals the district court's order reversing the Commissioner's denial of social security disability benefits and supplemental security income to Eric Passmore. The Commissioner argues that due process does not afford social security claimants an absolute right to subpoena and cross-examine a reporting physician. Specifically, the Commissioner argues that the district court erred in holding that Passmore's due process rights were violated when the Administrative Law Judge ("ALJ") denied his subpoena request. Because we hold that due process does not afford social security claimants an absolute right to cross-examine and that the ALJ did not abuse his discretion by denying Passmore's subpoena request, we reverse and remand.

I. BACKGROUND

Passmore claims that he has been disabled since July 1998 when he slipped and injured himself while attempting to free a lawnmower from the mud. Passmore applied for social security disability benefits and supplemental security income in July 2001, alleging an inability to engage in substantial gainful employment due to a combination of impairments including back problems, obesity, gastroesophageal reflux disease, diabetes and anxiety.

The ALJ initially denied Passmore's application. On February 12, 2004, the Appeals Council remanded so the ALJ could obtain additional evidence, including a consultative orthopedic examination to evaluate Passmore's back impairment and the testimony of a qualified vocational expert.

At the ALJ's request, Dr. Charles Ash, M.D., provided the consultative orthopedic examination of Passmore. Passmore made no objection to Dr. Ash's objectivity. Dr. Ash submitted a report concluding that Passmore could occasionally lift or carry twenty pounds, frequently lift or carry ten pounds, and occasionally climb, balance, stoop, kneel, crouch, and bend. On March 29, 2005, Passmore requested that the ALJ subpoena Dr. Ash to make him available for cross-examination at an upcoming hearing. Passmore's request indicated that he wanted to question Dr. Ash regarding, "but not limited to," the following issues: the length of the examination, the medical records and film he reviewed, his financial relationship with the Social Security Administration ("SSA"), his hospital privileges, his current and past complaints to the Board of Healing Arts, his prior history of license revocation, the clarification of language used in the report, and the nature and scope of his current practice.

On May 18, 2005, the ALJ conducted a supplemental hearing. At the hearing, the ALJ denied Passmore's subpoena request. Instead, Dr. Malcolm Brahams, an orthopedic medical expert, testified at the hearing after having reviewed all of Passmore's medical records, including Dr. Ash's report. Dr. Brahams testified that no medical findings supported Passmore's subjective claims of pain and that Passmore could perform light work. In addition, a vocational expert testified that a hypothetical person with Passmore's impairments could not perform Passmore's past relevant work but could work in light, unskilled jobs that exist in significant numbers in the national economy.

Thereafter, the ALJ issued a decision finding that Passmore was not "disabled" under the Social Security Act. After the Appeals Council denied review, Passmore sought judicial review. On February 7, 2007, the district court reversed the ALJ's decision and remanded for further proceedings. The district court determined that our decision in Coffin v. Sullivan, 895 F.2d 1206, 1212 (8th Cir.1990), established that due process affords social security claimants an absolute right to cross-examine individuals who submit reports. Because the ALJ denied Passmore's subpoena request, the district court held that Passmore's due process rights were violated. On appeal, the Commissioner argues that Coffin does not provide an absolute right to cross-examine and that any suggestion otherwise in Coffin is dicta.

II. DISCUSSION

A. Precedent

"This panel is bound by Eighth Circuit precedent," John Morrell & Co. v. Local Union 304A of the United Food & Commercial Workers, 913 F.2d 544, 550 (8th Cir.1990), and cannot overrule an earlier decision by another panel, Jackson v. Ault, 452 F.3d 734, 736 (8th Cir.2006). However, when an issue is not squarely addressed in prior case law, we are not bound by precedent through stare decisis. Brecht v. Abrahamson, 507 U.S. 619, 630-31, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); see Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925) ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents."). In addition, "[w]e need not follow dicta." John Morrell, 913 F.2d at 550. Dicta is "[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential[.]" Black's Law Dictionary 1102 (8th ed.2004) (defining obiter dictum).

In Richardson v. Perales, the Supreme Court addressed whether procedural due process permits an examining physician's report to provide substantial evidence for a decision to deny benefits when the examining physician did not testify. 402 U.S. 389, 401-06, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). The Supreme Court stated:

We conclude that a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing, and despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, 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.

Id. at 402, 91 S.Ct. 1420 (emphasis added).

Although the Supreme Court recognized that the claimant had a right to subpoena and an opportunity to cross-examine the physician, it did not explicitly state whether this right comes from the Due Process Clause of the Fifth Amendment or from either a statute or regulation. The Court, however, did clarify that "[a]lthough the claimant complains of the lack of opportunity to cross-examine the reporting physicians, he did not take advantage of the opportunity afforded him under 20 C.F.R. § 404.926 to request subpoenas for the physicians.... [T]he claimant as a consequence is to be precluded from now complaining that he was denied the rights of confrontation and cross-examination." Id. at 404-05, 91 S.Ct. 1420. Thus, it appears that the right to subpoena and cross-examine discussed in Perales stems from the agency's regulations.

The Fifth Circuit has "read Perales as conferring an absolute right to subpoena a reporting physician." Lidy v. Sullivan, 911 F.2d 1075, 1077 (5th Cir.1990). However, the agency's regulations relevant in Perales provide:

When it is reasonably necessary for the full presentation of a case, an administrative law judge or a member of the Appeals Council may, on his or her own initiative or at the request of a party, issue subpoenas for the appearance and testimony of witnesses and for the production of books, records, correspondence, papers, or other documents that are material to an issue at the hearing.

20 C.F.R. §§ 404.950(d)(1), 416.1450(d)(1) (emphasis added).¹ Because the regulations provide the ALJ discretion to issue a subpoena when "reasonably necessary for the full presentation of a case," the regulatory right to cross-examine is qualified and not absolute. Therefore, we conclude that Perales does not afford social security claimants an absolute right to cross-examine. See Yancey v. Apfel, 145 F.3d 106, 112 (2d Cir.1998) ("Although the Court mentioned the `right to subpoena,' it never specifically addressed whether this `right' was limited or absolute. The Perales Court indirectly acknowledged the ALJ's discretion in these matters by noting that the admission of consultative physicians' reports did not threaten the integrity or fairness of the administrative proceedings in light of the fact that such reports are subject to `cross-examination as may be required for the full and true disclosure of the facts.'"); Flatford v. Chater, 93 F.3d 1296, 1305 (6th Cir.1996) ("Thus, Perales did not concern the issue of whether a social security benefit claimant who requests cross-examination of a witness must be allowed to conduct it. Although the Supreme Court used the phrase `right to subpoena,' the Court did not discuss whether this right was absolute or limited, or the nature of the right.").

In Coffin v. Sullivan, we discussed the due process requirements of social security disability hearings with respect to post-hearing interrogatories posed to a vocational expert. 895 F.2d at 1210-13. There, after the hearing, the ALJ determined it necessary to obtain evidence through written interrogatories from a vocational expert. Id. at 1209....