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Solis v. Schweiker

United States Court of Appeals, Ninth Circuit
Oct 24, 1983
719 F.2d 301 (9th Cir. 1983)

Summary

holding that claimant is entitled to cross-examination where physician is a "crucial witness whose findings substantially contradict the other medical testimony"

Summary of this case from David P. v. Saul

Opinion

No. 82-5457.

Argued and Submitted September 8, 1983.

Decided October 24, 1983.

James A. Jensen, Long Beach, Cal., for plaintiff-appellant.

Dennis J. Mulshine, San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before HUG and NELSON, Circuit Judges, and EAST, District Judge.

Hon. William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.


The issue in this case is the extent to which a disability claimant is entitled to cross-examine a physician whose written report of medical findings supports a finding of nondisability. We hold that where the physician is a crucial witness whose findings substantially contradict the other medical testimony, and when as in this case interrogatories are an inadequate substitute for cross-examination, the claimant has been denied procedural due process if his request to subpoena the physician is not granted.

Appellant Solis' application for disability insurance and supplemental security income benefits based on a chronic back injury was denied. In reaching his ultimate finding of nondisability, the administrative law judge ["ALJ"] initially considered five medical opinions. Three orthopedic surgeons and a neurologist found that Solis was temporarily totally disabled, but disagreed as to how long the disability would continue. Solis' treating physician, an orthopedic surgeon, considered Solis permanently disabled — unable then or in the future to return to any kind of gainful employment.

Apparently to resolve an open question in his mind, the ALJ sought an additional medical report from a Dr. Starr. Starr's examination was paid for by the Social Security Administration. After examining Solis and his medical records, Starr concluded that the claimant had the residual functional capacity to sit, stand, or walk for an eight-hour work day. The ALJ denied Solis his request to cross-examine Dr. Starr for possible bias, allowing him to submit interrogatories instead. The ALJ ruled, based on Starr's testimony, that Solis was capable of sedentary work and thus ineligible for benefits. The district court summarily affirmed.

A claimant in a disability hearing is not entitled to unlimited cross-examination, but rather "such cross-examination as may be required for a full and true disclosure of the facts." 5 U.S.C. § 556(d). The ALJ, therefore, has discretion to decide when cross-examination is warranted.

The government argues that the ALJ did not abuse his discretion in denying Solis' request to cross-examine Starr. It relies on Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), in which the Supreme Court found that, even in the absence of cross-examination, an adverse medical report may constitute substantial evidence of nondisability.

In Perales, however, the claimant failed to request cross-examination. In the absence of any request for cross-examination, the Court would not presume that an independent doctor working for the Social Security Administration was biased. Here Solis requested cross-examination, but that request was denied. Perales, therefore, does not govern this case directly.

Perales is, however, instructive on the issue before us. In deciding that it would not infer bias, The Court stressed that the procedure of relying on isolated medical reports to find nondisability is fair precisely because the claimant has the opportunity to cross-examine the physician. Id., at 402, 404, 407, 410, 91 S.Ct. at 1427, 1428, 1430, 1432. Because Solis availed himself of the right to request cross-examination, and because the report was so crucial to the ALJ's decision, we find that the denial of Solis' request was an abuse of discretion.

Having concluded that Solis was entitled to some type of cross-examination, we now turn to the question whether the interrogatories were an adequate substitute for cross-examination in this case. We find that they were not. Although interrogatories can adequately replace in-court testimony where factual questions such as foundation or expertise are at issue, we agree with appellant that bias is better elicited through rigorous in-court scrutiny. The general difficulty of demonstrating bias through written interrogatories was compounded in this case by Starr's cursory and unilluminating responses.

We therefore REVERSE and REMAND.


Summaries of

Solis v. Schweiker

United States Court of Appeals, Ninth Circuit
Oct 24, 1983
719 F.2d 301 (9th Cir. 1983)

holding that claimant is entitled to cross-examination where physician is a "crucial witness whose findings substantially contradict the other medical testimony"

Summary of this case from David P. v. Saul

finding that denying a claimant's request to subpoena and cross-examine a physician was an abuse of discretion where the physician's report was "crucial to the ALJ's decision" and that interrogatories were not an adequate substitute where bias, rather than "factual questions such as foundation or expertise," was at issue

Summary of this case from Carolyn M. v. Saul

finding abuse of discretion when denying a claimant the opportunity to cross-examine a medical expert "where the physician is a crucial witness whose findings substantially contradict the other medical testimony"

Summary of this case from Doan v. Berryhill

finding that it was an abuse of discretion to deny the claimant's request to cross-examine a state agency physician who rendered an adverse medical opinion where the physician's report was crucial to the ALJ's decision

Summary of this case from Anderson v. Colvin

noting that " claimant in a disability hearing is not entitled to unlimited cross-examination" and that an ALJ "has discretion to decide when cross-examination is warranted"

Summary of this case from Carolyn M. v. Saul

In Solis and Bello, the claimant's treating physician offered an opinion that substantially contradicted the agency physician's opinion.

Summary of this case from Baker v. Comm'r of Soc. Sec. Admin.

In Solis v. Schweiker, 719 F.2d 301 (9th Cir. 1983), the Ninth Circuit held that it was an abuse of discretion to deny a claimant the opportunity to cross-examine a medical expert—even with written interrogatories as a substitute—"where the physician is a crucial witness whose findings substantially contradict the other medical testimony[.

Summary of this case from Minh Trieu Doan v. Berryhill

In Solis, the claimant submitted written questions, but was not allowed to cross-examine, whereas Doan was permitted no interrogatories and only the most cursory cross-examination: one question and answer.

Summary of this case from Minh Trieu Doan v. Berryhill

In Solis, the Court examined "the extent to which a disability claimant is entitled to cross-examine a physician whose written report of medical findings supports a finding of nondisability."

Summary of this case from Boober v. Colvin

In Solis, an ALJ initially considered the opinions from five physicians, including the opinion of claimant's treating physician finding that claimant was permanently disabled.

Summary of this case from Mowery v. Comm'r of the Soc. Sec. Admin.

In Solis, the additional doctor's opinion was crucial to the ALJ's decision because the ALJ solely relied on the opinion in finding the claimant not disabled.

Summary of this case from Mowery v. Comm'r of the Soc. Sec. Admin.

In Solis, the Ninth Circuit, citing to Perales, held that where a physician "is a crucial witness whose findings substantially contradict the other medical testimony, and when... interrogatories are an inadequate substitute for cross-examination," a claimant is "denied procedural due process if his request to subpoena the physician is not granted."

Summary of this case from Berry v. Astrue
Case details for

Solis v. Schweiker

Case Details

Full title:ARNOLD N. SOLIS, PLAINTIFF-APPELLANT, v. RICHARD S. SCHWEIKER, SECRETARY…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 24, 1983

Citations

719 F.2d 301 (9th Cir. 1983)

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