Lidy v. Sullivan, 90-1158
| Decision Date | 17 September 1990 |
| Docket Number | No. 90-1158,90-1158 |
| Citation | 911 F.2d 1075 |
| Parties | , Medicare&Medicaid Gu 39,536, Unempl.Ins.Rep. CCH 15680A Nelley LIDY, Jr., Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert E. Barfield, Amarillo, Tex., for plaintiff-appellant.
Joseph B. Liken and Karen J. Sharp, H & HS/OGC, Dallas, Tex., for plaintiff-appellant.
Appeal from the United States District Court for the Northern District of Texas.
Before GEE, SMITH, and WIENER, Circuit Judges.
I.
The plaintiff, Nelley Lidy, Jr., appeals the district court's grant of summary judgment upholding the denial by the Secretary of Health and Human Services of Lidy's application for disability insurance benefits. The factual issue regarding Lidy's entitlement to benefits is whether he suffers disabling pain. On this point, the following witnesses testified: Lidy, his wife, Dr. Berg, Dr. Morgan, and Dr. Finney. The reports of Dr. Finney, to whom Lidy's worker's compensation insurer referred him, formed the basis of the administrative law judge's (ALJ's) finding of no disability.
In order to challenge Dr. Finney's report, Lidy sought to subpoena him for cross-examination. The ALJ refused Lidy's request but did permit him to submit a set of written interrogatories to Dr. Finney. Finding the doctor's answers to be vague and evasive, Lidy sought to submit a second set of interrogatories and to reurge his request for live cross-examination. The ALJ denied Lidy's request, stating that additional interrogatories would not be helpful.
In the district court, the magistrate recommended granting Lidy's motion for summary judgment on the ground that the ALJ's refusal to permit Lidy to cross-examine Dr. Finney constituted a denial of due process. The district court, however, sustained the Secretary's objections to that finding and held that the ALJ acted within his discretion; the court accordingly granted summary judgment in favor of the Secretary.
II.
In concluding that Lidy has a right to cross-examine Dr. Finney, the magistrate relied upon Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 1428, 28 L.Ed.2d 842 (1971):
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. [Emphasis added.]
Lidy maintains that this holding recognizes an absolute right to cross-examine such a physician when a subpoena has been sought.
The Secretary argues, first, that Perales addresses the scenario of a nonexamining physician, whereas here Dr. Finney in fact had examined Lidy. However, the passage from Perales that we have quoted, supra, plainly refers to examining physicians. Hence, this argument by the Secretary is without merit. 1
Second, the Secretary observes that, in what he acknowledges is dictum, the Court in Perales referred to "the cost of providing live medical testimony ... where need has not been demonstrated by a request for a subpoena." Id. at 406, 91 S.Ct. at 1430. It is not pellucid from this passage, standing alone, whether the Court meant that the request must contain...
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Flatford v. Chater
...to cross-examination exists in the context of a social security hearing. In support of his position, Flatford cites 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), Coffin v. Sullivan, 895 F.2d 1206 (8th Cir.1990), Dem......
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Gambill v. Shinseki
...v. Chater, 73 F.3d 87 (6th Cir.1996); Demenech v. Sec'y of Dep't of Health & Human Servs., 913 F.2d 882 (11th Cir.1990); Lidy v. Sullivan, 911 F.2d 1075 (5th Cir. 1990); Solis v. Schweiker, 719 F.2d 301 (9th Cir.1983); Cowart v. Schweiker, 662 F.2d 731 (11th Cir.1981). Those cases can be fa......
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Weyerhaeuser v. Pierce County
...of Dep't of Health & Human Servs., 913 F.2d 882 (11th Cir.1990); Wallace v. Bowen, 869 F.2d 187 (3d Cir.1989); but see Lidy v. Sullivan, 911 F.2d 1075 (5th Cir.1990), cert. denied, 500 U.S. 959, 111 S.Ct. 2274, 114 L.Ed.2d 725 (1991); Coffin v. Sullivan, 895 F.2d 1206 (8th Cir.1990). 2 In a......
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Bush v. Apfel, 97-CV-538-EA.
...have held that claimants have an absolute right to subpoena witnesses for cross-examination in social security hearings. Lidy v. Sullivan, 911 F.2d 1075 (5th Cir.1990), cert. denied, 500 U.S. 959, 111 S.Ct. 2274, 114 L.Ed.2d 725 (1991); Coffin v. Sullivan, 895 F.2d 1206 (8th Cir.1990); Lonz......
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The Hearing
...physician report, on the other hand, are not always denied. See §§223 and 284. In the Fifth Circuit, pursuant to Lidy v. Sullivan , 911 F.2d 1075 (5th Cir. 1990) (adopted as an acquiescence ruling, AR 91-1(5)), claimants have an absolute right to subpoena and cross-examine an 587 the hearIn......
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SSR 96-1p: Application by the Social Security Administration (SSA) of Federal Circuit Court and District Court Decisions
...1169 (5th Cir. 1981)—Interpretation of the Deemed Marriage Provision—Title II of the Social Security Act AR 91-1(5): Lidy v. Sullivan , 911 F.2d 1075 (5th Cir. 1990)—Right to Subpoena an Examining Physician for Cross- examination Purposes—Titles II and XVI of the Social Security Act AR 99-3......
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SSR 96-1p: Application by the Social Security Administration (SSA) of Federal Circuit Court and District Court Decisions
...1169 (5th Cir. 1981)—Interpretation of the Deemed Marriage Provision—Title II of the Social Security Act AR 91-1(5): Lidy v. Sullivan , 911 F.2d 1075 (5th Cir. 1990)—Right to Subpoena an Examining Physician for Cross- examination Purposes—Titles II and XVI of the Social Security Act AR 99-3......
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The Hearing
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