Subpoena Denials

The law requires that a Social Security Disability claimant be able to cross-examine the author of an adverse report. Since the reports of the doctors who do the consultative examinations (“CE”) for Social Security almost invariably indicate the claimant can work, I always insist that the administrative law judge (“ALJ”) issue a subpoena for the CE doctor.

I have had cases reversed by the Appeals Council and federal courts recently because the ALJ failed to give a valid reason for refusing to issue subpoenas for CEs. When an ALJ denies a subpoena request, I always respond to protect the record for appeal. I did this Friday after ALJ Hazel Strauss refused to issue a subpoena.

The first reason for Strauss’ refusal was that the CE took place eight years ago. However, Strauss would not allow the passage of time to prevent her from giving any weight to the CE report, I stated that her precluding me from cross-examining the CE doctor is a denial of Due Process.

The second reason for Strauss’ refusal was her belief that “it is not likely [the CE doctor] would be able to testify to anything except what the report of the examination states, as consultants do not keep records beyond year of such examinations.” I noted that not only is her speculation as to what the CE doctor might remember irrelevant, but also my cross examination does not need to be limited to examination findings because his examination practices and procedures during the thousands of CEs he performed are proper subjects of cross examination because they could provide probative information.

Third reason for Strauss’ refusal was that CE records are disposed within a year. I replied that such a justification for rejecting a subpoena is absurd because it takes more than a year between the time the CE is performed and the hearing is scheduled. According to Strauss’ logic, no CE doctor would ever be subpoenaed.

The letter to ALJ Strauss provides the Appeals Council with a clear procedural Due Process violation for remanding a potential adverse decision. The subpoena denial is also a failure to develop the record that a U.S. Attorney can accept as an excuse for a voluntary remand.