There but for the grace of God go I: the right of cross-examination in social security disability hearings.

• Author: Dixon, Bradley S.

Passmore v. Astrue (1)

1. INTRODUCTION

   The need for due process and the desire to achieve efficiency is an ever-persistent tension in administrative law. With the amazing growth of the administrative state, striking the right balance has proven difficult. (2) The Supreme Court's jurisprudence in this area has attempted to guarantee due process while taking into consideration the practical difficulties of maintaining an administrative state. (3)

   The right to cross-examine witnesses at trial is an embedded principle in Anglo-American law. (4) Along with this right come practical difficulties, such as the costs and inconvenience of requiring the witness to be present at trial. In the administrative context, the question of whether social security claimants have the absolute right to cross-examine reporting physicians has been a matter of severe disagreement in the past thirty years and has resulted in circuits that are split over the question.

   The Eighth Circuit directly addressed this issue in Passmore v. Astrue and joined the group of circuits that follow the "qualified right" approach, which maintains that a social security claimant does not have an absolute right to cross-examine reporting physicians. (5) In doing so, however, the Eighth Circuit relied on long-held assumptions, and its judgment may warrant re-evaluation to ensure that the rights of social security claimants are best protected. The circuit split on this issue is reflective of competing values that are practically inevitable in light of the tension between efficiency and justice, and both approaches will be evaluated in terms of judicial reasoning and policy. The rise of the administrative state presents daunting challenges in terms of cost and administration, but this should not deter the courts from stepping in to ensure that the rights of citizens are protected. The growth, overwhelming complexity, and extensive reach of the administrative state should not deter scrutiny but provide all the more reason to fiercely scrutinize its procedures in light of the guarantees of the Due Process Clause of the Constitution. (6)

2. FACTS AND HOLDING

   Eric Passmore slipped and fell in 1998, causing him multiple injuries, (7) which he claimed resulted in an inability to engage in substantial gainful employment. (8) This prompted him to apply for social security disability benefits and supplementary security income in July 2001. (9) The Administrative Law Judge (ALJ) initially denied Passmore's application, and, upon appeal, the Appeals Council remanded so that the ALJ could obtain additional evidence regarding, inter alia, a consultative orthopedic examination of Passmore's back and the testimony of a qualified expert. (10)

   Dr. Charles Ash, M.D., conducted an orthopedic examination of Passmore and submitted a report to the ALJ regarding Passmore's back impairment. (11) Passmore requested that the ALJ subpoena Dr. Ash for crossexamination at an upcoming hearing. (12) At the supplemental hearing, the ALJ denied the subpoena request for Dr. Ash, but instead offered Dr. Malcom Brahams, an orthopedic medical expert who had reviewed all of Passmore's medical records, including Dr. Ash's report, for cross-examination. (13) Dr. Brahams testified that no medical findings supported Passmore's claims and that Passmore was able to perform light work. (14) The ALJ then issued his finding that Passmore was not "disabled" under the Social Security Act. (15) After the Appeals Council denied review, Passmore sought judicial review in the United States District Court for the Western District of Missouri. (16)

   Passmore argued that the Eighth Circuit, in Coffin v. Sullivan, (17) had affirmed that the Supreme Court established, in Richardson v. Perales (18) that due process affords social security claimants an absolute right to cross-examine individuals who submit reports. (19) The district court agreed and held that the denial of Passmore's subpoena request constituted a violation of due process. (20) On appeal to the Eighth Circuit, the Commissioner of Social Security (Commissioner) countered that neither Perales nor Coffin provided that due process required an absolute right to cross-examine in the social security administrative context. (21)

   The Eighth Circuit held that the Supreme Court's decision in Perales, referring to the right to subpoena a reporting physician for cross-examination, was not based on the Due Process Clause of the Fifth Amendment but instead stemmed from discretionary statutory regulations. (22) Since the Supreme Court had not issued an opinion on the nature of the right in question, the Eighth Circuit concluded that due process does not afford social security claimants an absolute right to cross-examine individuals who submit a report. (23)

3. LEGAL BACKGROUND

   The Supreme Court's view on the demands of procedural due process, in relation to administrative law, has been in a state of flux as reach of the administrative state has expanded. The Court has recognized that to attempt to deracinate the administrative state from the lives of Americans would not only be catastrophic but also perhaps beyond the legitimate bounds of judicial behavior. In its attempt to analyze procedural due process in the administrative context, the Supreme Court has enunciated several criteria that should be considered. (24) However, before addressing these criteria, it is first necessary to consider whether the Supreme Court has answered the specific question directly in Richardson v. Perales: (25) do social security claimants have an absolute right to cross-examine reporting physicians in a social security disability hearing?

   1. The Supreme Court and Richardson v. Perales

      In Richardson v. Perales, the Supreme Court of the United States indirectly addressed the nature of the right to subpoena and cross-examine a witness in a social security disability hearing. (26) In doing so, the Court's decision was nebulous as to whether the right to subpoena and cross-examine reporting physicians in the social security administrative context was derived from the Due Process Clause of the Fifth Amendment or rather was statutory in nature. (27)

      The case arose when Perales filed for disability benefits under the Social Security Act, claiming that he became disabled as a result of a back injury he received at work. (28) His claim was originally denied by the state social security agency, but Perales was able to submit additional medical reports and obtained a hearing before the medical examiner. (29) Perales formally objected to the introduction of several reports by state medical examiners on various grounds, including the absence of an opportunity for cross-examination. (30) The objections were overruled, and the ALJ determined that Perales was not entitled to disability insurance benefits because he did not qualify as "disabled" under the Social Security Act. (31)

      Upon an adverse ruling by the Appeals Council, Perales initiated an action in the United States District Court for the Western District of Texas, which remanded for a new hearing before a new examiner due to the court's reluctance to accept unsworn written reports by medical experts as substantial evidence. (32) on appeal from the district court, the Fifth Circuit noted that, since the claimant did not request subpoenas from the hearing examiner to cross-examine the reporting physicians, he was not in a position to complain that he had been denied his rights of confrontation and cross-examination. (33)

      The Supreme Court essentially agreed with this portion of the Fifth Circuit's analysis, (34) but in its holding, and throughout its opinion, the Court left opaque the nature of the right that Mr. Perales had waived by failing to request a subpoena of his reporting physicians. (35) In a complex holding that one scholar has referred to as "a triumph of verbosity over clarity," (36) the Court held that the evidence presented by Perales' medical examiner could constitute substantial evidence sufficient to deny disability, "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." (37)

      Following Perales, the federal circuit courts of appeal that addressed this question split into two distinct camps, with one claiming the right to cross-examine as an absolute right stemming from the Due Process Clause and the other maintaining the right was statutory and qualified.

   2. The Eighth Circuit

      The Eighth Circuit seemed to have addressed the nature of the right to cross-examination in administrative hearings in Coffin v. Sullivan. (38) Coffin's attorney argued that the ALJ's use of post-hearing reports violated the claimant's due process rights. (39) The ALJ had sent letters to Coffin's attorney, giving him the opportunity to object or propose his own questions in an interrogatory to the medical examiner, but Coffin's attorney failed to respond and was subsequently sent a copy of the responses to the interrogatory and the opportunity to comment. (40) In addressing whether due process was satisfied, the court stated, "Due process requires that a claimant be given the opportunity to cross-examine and subpoena the individuals who submit reports." (41) The court held that the procedures followed, namely, the opportunity to object to interrogatories, comment on the evidence, and submit additional evidence, did satisfy due process requirements. (42) Because of Coffin's inaction, he had essentially waived any right to cross-examine the reporting physician. (43)

      In light of its language, several circuits interpreted Coffin's holding as supporting the proposition that the right to cross-examine reporting physicians was an absolute right compelled by due process guaranteed by the Fifth Amendment. (44) As it stood, the Eighth Circuit appeared to have adopted an approach that gave claimants an absolute right to cross-examine...