Calvin v. Chater, s. 95-5372

• Decision Date: 16 February 1996
• Docket Number: 95-5438,Nos. 95-5372,s. 95-5372
• Citation: 73 F.3d 87
• Parties: , Unempl.Ins.Rep. (CCH) P 15064B Jessie CALVIN, Plaintiff-Appellee, v. Shirley S. CHATER, Commissioner of Social Security, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 87

73 F.3d 87

49 Soc.Sec.Rep.Ser. 727, Unempl.Ins.Rep. (CCH) P 15064B

Jessie CALVIN, Plaintiff-Appellee, v. Shirley S. CHATER, Commissioner of Social Security Defendant-Appellant.

Nos. 95-5372, 95-5438.

United States Court of Appeals Sixth Circuit.

Argued Nov. 16, 1995.

Decided Jan. 9, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 16, 1996.

Eugene C. Gaerig (argued and briefed), Hartsfield & Gaerig, Memphis, TN, for Jessie Calvin.

Robert S. Greenspan, U.S. Dept. of Justice, Appellate Staff, Civil Div., Mark C. Niles (briefed), U.S. Dept. of Justice, Appellate Staff, Civil Div., John C. Dwyer (argued), U.S. Dept. of Justice, Office of the Associate Atty. Gen., Washington, DC, for Commissioner of Social Security.

Before: LIVELY, NELSON, and SUHRHEINRICH, Circuit Judges.

DAVID A. NELSON, Circuit Judge.

Where a person asserting a claim for Supplemental Security Income benefits asks that a reporting physician be subpoenaed to testify on cross-examination at the claimant's hearing before an administrative law judge, must the request for a subpoena be honored even if the claimant has failed to justify the request in the manner prescribed by the applicable social security regulations? Concluding that the right to subpoena a reporting physician is "absolute," the district court answered this question in the affirmative and remanded the case at bar to the Secretary of Health and Human Services so that the physician could be subpoenaed for cross-examination. ¹

We do not believe that a claimant is entitled to ignore the requirements of the regulations, as clearly happened here. It follows that the ALJ did not abuse his discretion in denying the request for issuance of a subpoena. We shall reverse the remand order and instruct the district court to decide the merits of the case on the basis of the record as it now stands.

I

Asserting that he had become disabled in May of 1986, following a hospitalization for acute kidney failure and other problems resulting from excessive dosages of the blood thinner Coumadin, the claimant, Jessie Calvin, applied for Supplemental Security Income benefits in June of that year. The claim was denied administratively, and Mr. Calvin did not appeal. Some three years later, however, he was notified that he was entitled to a review of his claim as a member of the class designated in Samuels v. Heckler, 668 F.Supp. 656 (W.D.Tenn.1986). The Secretary undertook to determine whether Mr. Calvin had been disabled between June 13, 1986 (the date he filed his claim), and July 29, 1986 (the date of the administrative denial of the claim). Mr. Calvin was invited to file a new claim if he had evidence of a health problem subsequent to July 29, 1986, but no such claim was filed. At some point, however, Mr. Calvin did file an undated "petition to reopen case," asking for SSI benefits from May 1, 1986, forward.

The agency referred Mr. Calvin to Dr. Thomas Rawlinson for a medical assessment. Dr. Rawlinson conducted an examination on December 15, 1989, and prepared a report indicating that there had been a complete resolution of all medical problems resulting from the Coumadin toxicity in 1986. The report was accompanied by a two-page medical assessment form. Although Dr. Rawlinson left the form largely blank, he checked a box on it indicating that "[t]he patient has no impairment-related physical limitations."

Dr. Rawlinson's report was consistent with an earlier report prepared by Dr. Keith Menees, who examined Mr. Calvin at the request of the latter's lawyer on May 29, 1986. Dr. Menees found that Mr. Calvin's kidney function was within normal limits. The doctor went on to opine, subject to what an abdominal CT might show, that there was probably no permanent damage from the Coumadin episode.

Unlike Dr. Rawlinson, Dr. Menees had a policy of not completing social security medical assessment forms. He never filled out such a form for Mr. Calvin, and his failure to do so appears to have been the reason for the referral to Dr. Rawlinson.

Following a new administrative denial of Mr. Calvin's claim, a hearing was scheduled for October 30, 1990, before an administrative law judge. Eight days before the hearing the claimant's lawyer sent the ALJ a letter taking exception to Dr. Rawlinson's report and the accompanying medical assessment form. "Under the United States Constitution, the Social Security Administration Act, [and] the Administrative Procedures [sic] Act," said the letter, "I respectfully ask this Honorable Court to subpoena ... the consulting doctor, Dr. Thomas Rawlinson for cross-examination. Otherwise, I respectfully pray that the Court disallow Dr. Rawlinson's [report and medical assessment]."

The pertinent regulation, 20 C.F.R. Sec. 416.1450(d), authorizes an ALJ to issue a subpoena ad testificandum "[w]hen it is reasonably necessary for the full presentation of a case...." Sec. 416.1450(d)(1). The regulation goes on to provide as follows:

"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 ... 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." 20 C.F.R. Sec. 416.1450(d)(2).

The subpoena request in question here did not suggest that Dr. Rawlinson was biased in any way. It referred to no "important facts" expected to be developed through cross-examination. Neither did the request indicate why any such facts could not be proved through written interrogatories or other means not involving the issuance of a subpoena. ² 2] The ALJ denied the request by letter dated October 25, 1990, and Dr. Rawlinson's report was among the exhibits admitted at the hearing.

After the hearing the ALJ issued a decision denying the claim for benefits. In a portion of the decision captioned "Procedural History," the ALJ gave the following explanation of his reasons for denying the request for a subpoena:

"Although the Social Security Regulations allow a party to request that the Administrative Law Judgeissue a subpoena for the appearance and testimony of witnesses when it is 'reasonably necessary for the full presentation of a case,' this is a discretionary privilege and has certain prerequisites (20 CFR 416.1450(d)(1)(2)). Parties to a hearing who wish to subpoena witnesses must file a written request giving the names and addresses of the witnesses; stating the important facts that the witness is expected to prove; and indicating why these facts could not be proven without issuing a subpoena. This Administrative Law Judge notes that Counsel for the claimant did not take actions to satisfy the prerequisites of 20 CFR 416.1450(d)(2). Moreover, this Administrative Law Judge finds that it would serve no useful purpose to subpoena Dr. Rawlinson since interrogatories could serve the same purpose. Berger v. Secretary, 835 F.2d 635 (6th Cir.1987) ('denial of Mrs. Berger's subpoena request did not prevent her from receiving a fair and full hearing before the Administrative Law Judge')."

Mr. Calvin took an appeal to the Appeals Council, arguing among other things that the ALJ had erred in refusing to subpoena Dr. Rawlinson. The Appeals Council remanded the case to the ALJ on other grounds, without addressing the subpoena issue.

A new hearing was held before the ALJ on April 30, 1992, at which time Mr. Calvin's counsel renewed his objection to Dr. Rawlinson's report and medical assessment. The ALJ nonetheless gave consideration to these documents, together with all other documents identified as exhibits in the record. In a decision issued on June 18, 1992, the ALJ again denied the claim for benefits.

Again Mr. Calvin sought review by the Appeals Council. The Appeals Council denied review, allowing the ALJ's June 18 decision to stand as the final decision of the Secretary.

Mr. Calvin then sought judicial review in the United States District Court for the Western District of Tennessee. Citing Lidy v. Sullivan, 911 F.2d 1075, 1077 (5th Cir.1990), cert. denied, 500 U.S. 959, 111 S.Ct. 2274, 114 L.Ed.2d 725 (1991), and Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), the district court held that Mr. Calvin had an absolute right, based on due process considerations, to conduct a live cross-examination of the examining physician. The case was remanded to the Secretary to permit such a cross-examination. In response to a motion to alter or amend the remand order, the district court later made a change not pertinent to this appeal; the court reaffirmed its decision on the subpoena issue. The Commissioner then perfected a timely appeal to this court.

II

In Sec. 205(a) of the Social Security Act, 42 U.S.C. Sec. 405(a), Congress gave the Secretary "full" rule-making power. The Secretary was directed to "adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same...." Id.

Pursuant to this statutory authorization, the Secretary promulgated the regulation codified at 20 C.F.R. Sec. 416.1450(d). As we have seen, the regulation authorizes the issuance of subpoenas when "reasonably necessary for the full presentation of a case," Sec. 416.1450(d)(1), and requires the party desiring a subpoena to file a written request indicating why a subpoena is necessary and stating the "important facts" that the subpoenaed witness or document is expected to prove. Section 416.1450(d)(2). We presume that the regulation is valid--see Marshall v. Whirlpool Corp., 593 F.2d 715, 721-22 (6th Cir.1979), aff'd, 445 U.S. 1, 100 S.Ct. 883, 63 L.Ed.2d 154 ...