Flatford v. Chater

• Decision Date: 28 August 1996
• Docket Number: No. 95-5455,95-5455
• Parties: , Unempl.Ins.Rep. (CCH) P 15603B Clifford FLATFORD, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1296

93 F.3d 1296

51 Soc.Sec.Rep.Ser. 537, Unempl.Ins.Rep. (CCH) P 15603B

Clifford FLATFORD, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security,

Defendant-Appellee.

No. 95-5455.

United States Court of Appeals, Sixth Circuit.

Argued March 7, 1996.

Decided Aug. 28, 1996.

William Allen (argued and briefed), Rural Legal Services of Tennessee, Oak Ridge, TN, for Plaintiff-Appellant.

Paige Auer Winck, Asst. U.S. Attorney, Office of the U.S. Attorney, Knoxville, TN, Mack A. Davis, Laurie G. Remter (argued and briefed), Mary Ann Sloan, Holly A. Grimes, Social Security Administration, Office of General Counsel, Atlanta, GA, for Defendant-Appellee.

Before: MARTIN and BATCHELDER, Circuit Judges, and OLIVER, ^* District Judge.

BOYCE F. MARTIN, JR., Circuit Judge.

Clifford Flatford was born on August 27, 1939, and has a fifth or sixth grade education. He has worked as a truck driver, maintenance worker, high lift driver, and assembly worker. Flatford underwent open heart surgery in August 1981 for coronary artery disease. In July 1982, Flatford had a heart catheterization which revealed a further narrowing of the coronary arteries but normal left ventricular functioning and grafts that were functioning well. Flatford last worked on March 3, 1983, due to his heart disease. Before and after his surgery, Flatford was treated by or consulted various physicians concerning his complaints of continued angina, symptoms in his leg, nervousness and depression.

Flatford applied for Social Security disability benefits and supplemental income benefits on March 7, 1983. His claim for these benefits was denied and Flatford reapplied for disability benefits on October 2, 1987. He was determined to be disabled beginning December 1, 1987, in a decision dated July 24, 1989.

On September 1, 1990, the Social Security Administration reopened Flatford's 1983 application pursuant to Flatford's request after the decision in Samuels v. Heckler, 668 F.Supp. 656 (W.D.Tenn.1986). Prior to a hearing on Flatford's reopened claim, the administrative law judge submitted interrogatories to Dr. Donald Saunders, Jr., a cardiologist in Columbia, South Carolina, and invited Flatford's attorney to submit interrogatories of his own. The administrative law judge submitted interrogatories to a Dr. Saunders because no cardiologist in the Knoxville area would serve as a medical adviser to the Social Security Administration. Flatford's attorney did not have any questions at that time but requested a copy of Dr. Saunders' responses and reserved the right to cross-examine Dr. Saunders after reviewing his responses.

On May 6, 1991, an administrative hearing was held and the administrative law judge introduced an exhibit with Dr. Saunders' responses. The exhibit, however, was not provided to Flatford until the hearing. The administrative law judge agreed to submit further interrogatories to Dr. Saunders after the hearing. In two letters dated May 22 and June 25, 1991, Flatford's attorney requested a supplemental hearing to cross-examine Dr. Saunders. In his May 22 letter, Flatford's attorney stated that a cross-examination was needed because "whatever [Dr. Saunders'] answer to the interrogatory may be will direct the next question that I might ask. The only way to adequately examine a witness such as Dr. Saunders is through direct cross examination." In his letter of June 25, Flatford's attorney gave as his reason for requesting a subpoena the fact that he was not furnished with Dr. Saunders' responses until the day of the May 6 hearing despite his efforts to contact the Office of Health Administration to see if the responses had been received. On August 21, 1991, the administrative law judge rejected Flatford's request to cross-examine Dr. Saunders, but permitted Flatford to submit additional interrogatories. In denying Flatford's request for a subpoena to cross-examine Dr. Saunders, the administrative law judge reasoned that Social Security regulation 20 C.F.R. 404.950(d) gave the administrative law judge the discretion to issue a subpoena, and compelled the issuance of a subpoena only where "necessary for fundamental fairness and to obtain evidence that could not be obtained by other means, such as interrogatories." 20 C.F.R. § 404.950 provides in pertinent part:

(d) Subpoenas

(1) 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.

(2) Parties to a hearing who wish to subpoena documents or witnesses must file a written request for the issuance of a subpoena with the administrative law judge or at one of our offices at least 5 days before the hearing date. The written request must give the names of the witnesses or documents to be produced; describe the address or location of the witnesses or documents with sufficient detail to find them; 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.

The administrative law judge concluded that Flatford's attorney had not made a showing as to why the substance and basis of Dr. Saunders' opinion regarding Flatford's health could not be proven through interrogatories.

Flatford submitted further interrogatories for Dr. Saunders on September 17, 1991. According to Flatford's attorney, however, the administrative law judge left seven of the interrogatories out of the copy sent to Dr. Saunders and made changes in the form of the question on five others. Flatford received the responses on October 10, 1991. One question deleted by the administrative law judge concerned Dr. Saunders' use of the "medical expert handbook" he received from the Social Security Administration. On October 18, 1991, Flatford's attorney wrote a letter to the administrative law judge objecting to the introduction of Dr. Saunders' responses because of the administrative law judge's editing of the interrogatories and also because some of Dr. Saunders' answers were not responsive. Flatford's attorney again requested cross-examination because "[t]hese deletions and changes emphasize the need for person-to-person cross examination of this medical advisor." Flatford's attorney continued, "I am especially concerned about your refusal to include my questions requesting copies of the medical expert handbook and other materials Dr. Saunders may have received from the Social Security Administration." The administrative law judge did not respond to Flatford's renewed request for a subpoena.

On December 21, 1991, the administrative law judge denied Flatford's claim and Flatford appealed. The Appeals Council remanded the case because the administrative law judge had failed to respond to the Flatford's October 1991 objection to the admission of Dr. Saunders' responses. The Appeals Council instructed the administrative law judge to permit Flatford to submit further interrogatories to Dr. Saunders or to explain why interrogatories were not warranted. Flatford submitted further interrogatories and again requested an opportunity to cross-examine Dr. Saunders. The administrative law judge submitted the interrogatories, but instructed Dr. Saunders to disregard Question 2 (requesting a copy of the "Medical Expert Handbook") because it was available to Flatford elsewhere, and to disregard Question 3 (requesting copies of "other training materials or instructions you have received from the Social Security Administration") because it was unduly burdensome.

On February 1, 1993, after receiving Dr. Saunders' responses to this latest set of interrogatories, Flatford again requested a supplemental hearing and opportunity to cross-examine Dr. Saunders. Flatford believed that Dr. Saunders' answers to Questions 7 and 8 were unresponsive, and that Dr. Saunders' unresponsive reply to Question 10 was based on Dr. Saunders' incorrect belief that he had not been furnished with a report from a Dr. Henderson (the record contained two reports from Dr. Henderson). The administrative law judge denied Flatford's renewed request, concluding that "[t]here are not material facts that are sought to be proved which have not already been sufficiently addressed in interrogatories or by follow-up interrogatories." After finding that Flatford retained the residual functional capacity to perform a full range of sedentary work, the administrative law judge concluded that Flatford was not disabled and denied Flatford's claim for disability benefits on June 22, 1993. The Appeals Council denied review on October 26, 1993, and the administrative law judge's determination became the final decision of the Commissioner. ¹ 42 U.S.C. § 405(g).

Flatford filed suit in federal court on December 27, 1993. On February 2, 1995, a magistrate recommended that the Commissioner's decision be affirmed. Based on this Court's decision in Berger v. Secretary of HHS, 835 F.2d 635, 640 (6th Cir.1987), the magistrate reasoned that 20 C.F.R. § 404.950(d)(1) gave the administrative law judge discretion to issue subpoenas. Flatford filed objections to the magistrate's report. On February 21, 1995, the district court accepted the magistrate's recommendation and determined that the administrative law judge had not abused his discretion in refusing to issue the subpoena. The district court dismissed Flatford's case and this timely appeal followed.

Flatford raises one issue on appeal: Whether a social security disability benefits claimant has an absolute due process right to subpoena and cross-examine a medical adviser who provides a "post-hearing report." ² Flatford argues that regulations giving the administrative law judge discretion to determine whether...