The Social Security regulations, and HALLEX rules for Administrative Law Judges (“ALJs”), allow claimants to request subpoenas for the appearance of witnesses or documents. New York courts have repeatedly recognized the right of a claimant to subpoena and cross-examine witnesses who submit reports adverse to the disability claim, especially when ALJs substantially rely on the report.
The courts have held that an ALJ abuses his discretion, and cannot rely upon the opinion of a consultative examiner (“CE”) if it was unclear if a CE reviewed the treating doctor’s reports, or if the reliability of the CE’s report is sufficiently controversial to merit cross-examination. I recently invoked a claimant’s right to subpoena a CE for cross examination because her opinion was contradicted by six other doctors, and the reliability of the CE’s aberrant and vague report was questionable, especially in light of her medical license revocation and incarceration for felonious fraud. The CE needed to be cross examined about her review of the treating doctor reports, and her qualifications for evaluating them.
The ALJ issued a fully favorable decision today, which failed to address the subpoena. Had the ALJ denied the claimant’s disability application, then the failure to issue the subpoena, let alone address the subpoena request, would have provided automatic grounds for a remand.