     Case: 17-41177   Document: 00514684108     Page: 1   Date Filed: 10/16/2018




                      REVISED October 16, 2018

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                 No. 17-41177                         FILED
                                                                October 12, 2018
                                                                 Lyle W. Cayce
JAMES BARRETT,                                                        Clerk

             Plaintiff - Appellant

v.

NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL
SECURITY,

             Defendant - Appellee


                Appeal from the United States District Court
                     for the Eastern District of Texas


Before SMITH, CLEMENT, and COSTA Circuit Judges.
GREGG COSTA, Circuit Judge:
      In deciding whether a claimant is eligible for Social Security disability
benefits, administrative law judges often consider the reports of medical
consultants. These doctors, who work for either Social Security or a state
agency, do not examine the claimant but review the medical files of those who
have and assess the claimant’s physical limitations. We decide whether a
claimant has an absolute right to question these consultants—a right we have
previously recognized when applied to examining physicians—or whether that
right should depend on a case-by-case assessment of the need for cross-
examination.
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                                        I.
      Over a decade ago, James Barrett filed the claim for disability benefits
that has now reached this court. Two examiners, an ALJ, and the Social
Security Administration’s Appeals Council initially denied his 2008
application. In a stroke of good fortune for Barrett, however, the Appeals
Council later remanded his claim to the ALJ because it could not locate the
record of his hearing.
      Back before the ALJ, Barrett for the first time took issue with a Residual
Functional Capacity (RFC) form signed in 2008 by Dr. Robin Rosenstock, a
state agency medical consultant who did not examine Barrett. The form says
Rosenstock reviewed Barrett’s medical records and determined that Barrett
could stand for six hours in an eight-hour workday, sit for the same,
occasionally lift 20 pounds but frequently lift 10, and frequently stoop, kneel,
crouch, and crawl. Another state medical consultant reviewed the form and
agreed with its conclusions.
      Before the hearing on remand, Barrett asked the ALJ to subpoena
Rosenstock so he could question her about the RFC form. As an alternative,
Barrett asked to submit written questions.        The ALJ neither issued the
subpoena nor sent the interrogatories. Noting Barrett’s objection, he admitted
the RFC form into evidence.
      The form affected the outcome. When questioning the vocational expert,
the ALJ asked about a hypothetical claimant who had limitations very similar
to those detailed in the RFC form except for being slightly more restricted in
his movement.     The vocational expert replied that several jobs would be
available to a person so limited—jobs like cleaner, assembler, and laundry




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                                     No. 17-41177
folder. In denying benefits for the period in question, 1 the ALJ determined
that Barrett’s physical capabilities were those of the hypothetical person he
had posed to the vocational expert. He gave the form “considerable weight”
because, although he slightly adjusted Rosenstock’s findings, 2 nothing in the
record refuted her opinion. Because the vocational expert had testified that a
person with the limitations the ALJ had described would be able to find work,
Barrett was not eligible for benefits.            Barrett once again appealed to the
Appeals Council, but it refused review.
      Barrett filed suit in the district court, arguing that the ALJ’s failure to
subpoena Rosenstock was reversible error. The district court disagreed.
                                            II.
                                            A.
      Barrett argues that because we have recognized an absolute right to
question examining physicians, Lidy v. Sullivan, 911 F.2d 1075, 1077 (5th Cir.
1990), he has a similar right to question medical consultants. We concluded
that the right to question examining physicians flowed from Richardson v.
Perales, 402 U.S. 389, 402 (1971). Perales addressed not a procedural question
of Social Security law but a substantive one: whether reports of examining
physicians, despite being hearsay, could constitute substantial evidence
supporting an ALJ’s disability determination. Id. In answering “yes,” the
Court included a caveat: a medical report could count as substantial evidence



      1  Because of a second application filed by Barrett and some other procedural quirks
that are irrelevant to our holding, the ALJ was asked to determine only whether Barrett was
disabled between June of 2008 and April of 2010. The second application was partially
granted, and Barrett was deemed disabled and eligible for benefits beginning in 2011.
       2 The ALJ rejected Rosenstock’s conclusions that Barrett did not have any

environmental limitations and that he was able to perform several postural functions
frequently. He found that Barrett should avoid extreme temperatures and could perform
postural functions no more than occasionally.

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                                       No. 17-41177
“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.” Id. Lidy understandably took this to mean that
an applicant must be provided an opportunity to subpoena and question an
examining physician who files a report. 3 Lidy, 911 F.2d at 1077.
       The Commissioner has never agreed with our reading of Perales, though
it has followed it in this circuit. See Acquiescence Ruling, SSR 91-1(5), 1991
WL 333940. Under Social Security regulations, an ALJ is required to summon
a physician to a hearing only when she determines it is “reasonably necessary
for the full presentation of a case.” 20 C.F.R. §§ 404.950(d)(1), 416.1450(d)(1). 4
All other circuits follow the regulation’s case-by-case approach rather than
giving claimants an automatic right to question examining physicians or
others who submit reports. See Passmore v. Astrue, 533 F.3d 658, 664–65 (8th
Cir. 2008); Yancey v. Apfel, 145 F.3d 106, 113 (2d Cir. 1998); Flatford v. Chater,
93 F.3d 1296, 1305 (6th Cir. 1996); Glenn v. Shalala, 21 F.3d 983, 988 (10th
Cir. 1994); Copeland v. Bowen, 861 F.2d 536, 539 (9th Cir. 1988); see also Torres
v. Barnhart, 139 F. App’x 411, 414 (3d Cir. 2005). 5
       So the question is whether we extend Lidy—an outlier even as to
examining physicians—to medical consultants. Lidy did not address such
sources, though we later suggested that its reach applied beyond examining
physicians. See Tanner v. Sec’y of Health & Human Servs., 932 F.2d 1110,



       3  That interpretation is not without its detractors. Some courts have noted that, while
the Perales Court used the term “right,” it did not clarify the nature of that right—qualified
or unqualified, constitutional or regulatory. See, e.g., Passmore v. Astrue, 533 F.3d 658, 661–
62 (8th Cir. 2008); Flatford v. Chater, 93 F.3d 1296, 1305 (6th Cir. 1996).
        4 The two regulations govern hearings for disability benefits and supplemental

security income respectively, but are otherwise identical.
        5 The Eleventh Circuit “assume[d] without deciding, that [an] ALJ has the discretion

to decide when cross-examination is warranted.” Demenech v. Sec’y of the Dep’t of Health and
Human Servs., 913 F.2d 882, 884 (11th Cir. 1990).
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                                 No. 17-41177
1112 (5th Cir. 1991). In Tanner, an ALJ submitted posthearing inquiries to a
vocational expert without giving the claimant an opportunity to question the
expert. Id. at 1111. We cited Lidy for the proposition that “claimants enjoy
due process guarantees, not the least of which is the right to question report
drafters such as” the vocational expert. Id. at 1112. But this remark was not
essential to our holding; the government did not contest whether the claimant
had an absolute right to subpoena the vocational expert, instead arguing
waiver of that right. Id.; see also United States v. Segura, 747 F.3d 323, 328
(5th Cir. 2014) (explaining that we are not bound by dicta). What is more,
there is a stronger interest in questioning the author of a posthearing
submission because there is otherwise no opportunity to rebut it in front of the
judge. See, e.g., Wallace v. Bowen, 869 F.2d 187, 194 (3d Cir. 1989).
      Because our caselaw has not answered the question, we consider the
usual due process factors in deciding whether there is an absolute right to
question medical consultants. Those factors are the importance of the private
interest at stake; the risk of erroneous deprivation of that interest and the
value of the requested additional procedure; and the government’s interest,
including the financial and administrative burdens the additional procedure
would create. See Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976).
      A desire to subpoena examining and nonexamining physicians
implicates the same private interest: a meaningful opportunity for the
claimant to present his best case and a fair determination of his eligibility.
Flatford, 93 F.3d at 1306.
      But the risk that mistakes in a medical consultant’s RFC form will
wrongly deprive the claimant of benefits is not as great as the risk posed by
inaccuracies in an applicant’s underlying medical records. The role of an
examining physician is twofold—their reports may contain ultimate opinions,
but they also contain important factual observations.      Those observations
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                                     No. 17-41177
about an applicant’s mental and physical condition are the first building block
in the disability determination. They are the primary source that medical
consultants and vocational experts use to form their opinions. Those opinions,
akin to secondary sources, are less critical than the underlying observations
because experienced ALJs can draw their own conclusions based on accurate
medical information. The ALJ in this case did just that, concluding Barrett
likely had greater limitations than the medical consultant suggested. Social
Security regulations recognize the foundational nature of the examining
physician’s observations: consistency with those observations is a factor in
determining the value of any doctor’s opinion. 20 C.F.R. §§ 404.1520c(c)(2),
416.920c(c)(2).     And when examining physicians do provide opinions,
regulations suggest that they will often be given greater weight because the
examining relationship provides them with a better understanding of an
applicant’s condition. 6 20 C.F.R. §§ 404.1520c(c)(3)(v), 416.920c(c)(3)(v).
      Nor will cross-examination always be necessary to expose errors in the
opinions of medical consultants. The nonadversarial nature of Social Security
hearings—the agency does not have a lawyer present—lessens the value of
cross-examination.       Flatford, 93 F.3d at 1306.          Unlike in a traditional
courtroom setting, Social Security ALJs play an active role in the full
development of the record. 20 C.F.R. §§ 404.944, 416.1444. They operate
under a “duty of inquiry”—they cannot leave it to the claimant and his
representative to thoroughly probe witness testimony, but must do so
independently. Campbell v. Heckler, 461 U.S. 458, 471 (1983) (Brennan, J.,




      6 Until recently, the Social Security Administration directed ALJs to discount RFC
forms that were inconsistent with the underlying factual record. SSR 96-6p, 1996 WL
374180. This ruling has since been rescinded and replaced, but was in effect at the time of
the ALJ’s decision in this case. See SSR 17-2p, 2017 WL 3928306.
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                                 No. 17-41177
concurring). That independent review may hurt the claimant’s case, or, as in
this case, may lead an ALJ to discredit, at least partially, adverse evidence.
      We do not mean to say that the opinions of medical consultants are
unimportant or error free. But granting an automatic right to subpoena them
is too strong a medicine.    We do not see why examination of a medical
consultant will always, or even usually, lead to meaningful impeachment.
That is especially true when, as in this case, the RFC form is reviewed by a
second medical consultant, lessening the risk of error. When a claimant has
legitimate concerns that an RFC form is inaccurate or misleading, existing
regulations provide the opportunity to question the drafter. Absent such cause,
allowing questioning may more often result in delay than the discovery of
useful evidence.
      That delay, along with the other costs of an absolute right to question
medical consultants, is the final due process consideration. The number of
Social Security disability claims is massive; in one recent year, they numbered
over 2 million.      SOC. SEC. ADMIN., SSA PUB. NO. 13-11826, ANNUAL
STATISTICAL REPORT ON THE SOCIAL SECURITY DISABILITY INSURANCE
PROGRAM,           2016         150         (2017),         available            at
https://www.ssa.gov/policy/docs/statcomps/di_asr/2016/di_asr16.pdf.     Slowing
the processing of that enormous caseload is not just a problem for the agency;
it delays assistance to eligible claimants as Barrett’s case illustrates. To be
sure, modern technology such as videoconferencing eases the burdens of
allowing cross-examination, but it does not eliminate it. See Social Security
Program Operations Manual Sys. (POMS), DI 33025.080, available at
https://secure.ssa.gov/poms.nsf/lnx/0433025080. The burdens of testifying are
significant enough that recipients of subpoenas from Social Security ALJs
often do not comply. That may result in exclusion of the report. See Victor G.
Rosenblum, The Right to Cross-Examine Physicians in Social Security
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                                  No. 17-41177
Disability Cases, 26 FLA. ST. U. L. REV. 1049, 1061 (1999) (recounting one
practitioner’s opinion that “the only effect of the subpoena, as a practical
matter, is to furnish the grounds for a motion to exclude the doctor’s report or
records”). That is another downside of granting an absolute right to question
medical consultants. It allows for abuse by claimants who have no legitimate
need to question the consultant, but instead merely want to swat away
inconvenient evidence.
      Balancing these factors leads us to conclude that disability claimants’
interest in accurate disability decisions is adequately protected by the qualified
right to question medical consultants they already enjoy. That type of case-by-
case assessment of need is common for procedural issues in disability cases.
See, e.g., Hardman v. Colvin, 820 F.3d 142, 148 (5th Cir. 2016) (giving ALJs
flexibility to order a consultative examination only when it would be necessary
to make a disability determination).
      Even if it were a close question whether due process requires extension
of the Lidy right to nonexamining physicians, not wanting to enlarge our
outlier status in this area would be the tiebreaker. “The interest in uniform
national application of the law is particularly strong in an area like Social
Security, where the number of cases is so high.” Copeland v. Colvin, 771 F.3d
920, 925 n.3 (5th Cir. 2014). Indeed, part of what Lidy relied on was a sense
that four circuits (the First, Second, Third, and Eighth) favored an absolute
right. Lidy, 911 F.2d at 1077. But three of those circuits have since rejected
Lidy’s conclusion and in the remaining one a district court doubted that the
circuit would recognize the unqualified right. See Passmore, 533 F.3d at 664;
Yancey, 145 F.3d at 113; Torres, 139 F. App’x. at 414; see also Morin v. Apfel,
1999 WL 33117165, at *5 n.6 (D. Maine). Nor have other circuits recognized
such a right. Flatford, 93 F.3d at 1305; Glenn, 21 F.3d at 988; Copeland, 861
F.2d at 539. The Seventh Circuit, the only one to consider the question in the
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                                   No. 17-41177
context of medical consultants, rejected an absolute right. Butera v. Apfel, 173
F.3d 1049, 1058 (7th Cir. 1999).
      We thus decline to extend a unique and inflexible rule to a different
context. This moves our law not just closer to that of other circuits, but closer
to the general principle that “[c]ross-examination is . . . not an absolute right
in administrative cases.” Cent. Freight Lines, Inc. v. United States, 669 F.2d
1063, 1068 (5th Cir. 1982); see also 5 U.S.C. § 556(d) (requiring under the
Administrative Procedure Act only “such cross-examination as may be
required for a full and true disclosure of the facts”). If anything, the need for
case-by-case flexibility is even greater for the Social Security Administration—
“the Mount Everest of bureaucratic structures,” Kane v. Heckler, 731 F.2d
1216, 1219 (5th Cir. 1984) (quoting Paul R. Verkuil, The Self-Legitimating
Bureaucracy, 93 YALE L.J. 780, 781 (1984))—than it is for most agencies.
                                        B.
      We now address whether Barrett showed that case-specific need to
question the medical consultant. We review for abuse of discretion an ALJ’s
determination whether the requested questioning was “reasonably necessary
for the full presentation of [the] case.”          20 C.F.R. §§ 404.950(d)(1),
416.1450(d)(1); see Flatford, 93 F.3d at 1307.
      Barrett hoped to find out whether Rosenstock adequately reviewed his
medical records and whether she actually completed the form or simply signed
the work of another. The ALJ determined that Barrett’s concerns were merely
speculative.   He also explained that he was familiar with the general
procedures used in completing these forms. Without some evidence that this
particular RFC form was defective, the ALJ concluded that additional
information about Rosenstock’s process was unwarranted.
      The ALJ did not abuse his discretion by refusing to issue the subpoena
or interrogatories. The request was made six years after Rosenstock filled out
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the form.   The likelihood that she would remember anything about the
circumstances surrounding this form was, by then, exceedingly low.         Her
opinion had been reviewed and affirmed by a second medical consultant. And
the ALJ did not fully accept her opinion. He engaged in an exhaustive review
of Barrett’s medical records and determined that Barrett was slightly more
restricted in his movements and should avoid extreme temperatures. Even if
an ALJ could have concluded otherwise, it was not an abuse of discretion to
deem the proposed questions unnecessary.
                                    ***
     The judgment is AFFIRMED.




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