Pidgeon v. Health and Human Services, Civ. A. No. 78-71520.

• Citation: 493 F. Supp. 1088
• Decision Date: 07 August 1980
• Docket Number: Civ. A. No. 78-71520.
• Parties: Mary PIDGEON, Plaintiff, v. HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — Western District of Michigan

493 F. Supp. 1088

Mary PIDGEON, Plaintiff, v. HEALTH AND HUMAN SERVICES, Defendant.

Civ. A. No. 78-71520.

United States District Court, E. D. Michigan, S. D.

August 7, 1980.

Robert W. Howes, Kelman, Loria, Downing, Schneider & Simpson, Detroit, Mich., for plaintiff.

Hayward L. Draper, Asst. U. S. Atty., Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

JOINER, District Judge.

This is an action for judicial review of a final decision of Health and Human Services denying the plaintiff's application for the establishment of a period of disability and for disability insurance benefits under the Social Security Act.

On March 2, 1976, the plaintiff filed an application for a period of disability and for disability insurance benefits alleging that as of December 31, 1973, at the age of 51, she was no longer able to work. The application was initially denied, and the plaintiff then appeared before an administrative law judge who considered the case de novo. On January 24, 1978, he decided that the plaintiff was not under a disability. On May 5, 1978, with the approval of the Appeals Council, it became the final decision of the Secretary of Health and Human Services.

The plaintiff subsequently filed a civil action. This court remanded the case to the Secretary for further proceedings in order to acquire consultative orthopedic and psychiatric examinations, as well as vocational testimony with respect to the plaintiff's residual capacities. The matter was heard before an administrative law judge who again denied the plaintiff's claim. On January 31, 1980, when the Appeals Council also denied the claim, it became the final decision of the Secretary. The matter is presently before this court on cross motions for summary judgment.

At issue in this case is the plaintiff's claim that the administrative law judge denied her due process by refusing to issue a subpoena to enable the plaintiff to cross examine a psychiatrist whose opinion was relied upon by both the administrative law judge and the Appeals Council.

Initially, this court finds that both the administrative law judge and the Appeals Council did in fact rely upon the opinion of Dr. Forrer. The administrative law judge stated:

In particular, the administrative law judge notes that Dr. Everett found no orthopedic impairment and Dr. Forrer found no psychiatric impairment (besides moderate trait anxiety) on examination of the claimant. In fact, their assessments of the claimant's residual functional capacity fully supports a finding that the claimant has the physical and mental capacity to presently do her former work.

This fundamental reliance upon Dr. Forrer's report is shown further on in the opinion when the administrative law judge said:

Rather, the administrative law judge must conclude the claimant is exaggerating her complaints for a myriad of reasons as indicated in Dr. Forrer's report.

As noted by the administrative law judge, counsel objected to the use of Dr. Forrer's opinion and requested that a subpoena be issued permitting him to cross examine Dr. Forrer or in the alternative that a deposition taken of Dr. Forrer in an unrelated case be submitted as an exhibit to indicate the conservative psychiatric philosophy of the doctor. In this manner, he hoped to undermine the testimony of the doctor in this case. The administrative law judge refused to issue the subpoena and refused to receive the exhibit. In the process, he attempted to distinguish the case of Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), stating:

As I understand the ruling in the Perales case, counsel has the right to request the presence of a

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