                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 07-3078
                                 ________________

Eric Passmore,                             *
                                           *
             Appellee,                     *
                                           *       Appeal from the United States
      v.                                   *       District Court for the
                                           *       Western District of Missouri.
Michael J. Astrue, Commissioner            *
of Social Security,                        *
                                           *
             Appellant.                    *

                                 ________________

                             Submitted: April 17, 2008
                                 Filed: July 9, 2008 (Corrected: 08/04/2008)
                                ________________

Before GRUENDER, BRIGHT and BENTON, Circuit Judges.
                       ________________

GRUENDER, Circuit Judge.

       The Commissioner of Social Security (“Commissioner”) appeals the district
court’s order reversing the Commissioner’s denial of social security disability benefits
and supplemental security income to Eric Passmore. The Commissioner argues that
due process does not afford social security claimants an absolute right to subpoena
and cross-examine a reporting physician. Specifically, the Commissioner argues that
the district court erred in holding that Passmore’s due process rights were violated
when the Administrative Law Judge (“ALJ”) denied his subpoena request. Because
we hold that due process does not afford social security claimants an absolute right to
cross-examine and that the ALJ did not abuse his discretion by denying Passmore’s
subpoena request, we reverse and remand.

I.    BACKGROUND

       Passmore claims that he has been disabled since July 1998 when he slipped and
injured himself while attempting to free a lawnmower from the mud. Passmore
applied for social security disability benefits and supplemental security income in July
2001, alleging an inability to engage in substantial gainful employment due to a
combination of impairments including back problems, obesity, gastroesophageal
reflux disease, diabetes and anxiety.

      The ALJ initially denied Passmore’s application. On February 12, 2004, the
Appeals Council remanded so the ALJ could obtain additional evidence, including a
consultative orthopedic examination to evaluate Passmore’s back impairment and the
testimony of a qualified vocational expert.

         At the ALJ’s request, Dr. Charles Ash, M.D., provided the consultative
orthopedic examination of Passmore. Passmore made no objection to Dr. Ash’s
objectivity. Dr. Ash submitted a report concluding that Passmore could occasionally
lift or carry twenty pounds, frequently lift or carry ten pounds, and occasionally climb,
balance, stoop, kneel, crouch, and bend. On March 29, 2005, Passmore requested that
the ALJ subpoena Dr. Ash to make him available for cross-examination at an
upcoming hearing. Passmore’s request indicated that he wanted to question Dr. Ash
regarding, “but not limited to,” the following issues: the length of the examination, the
medical records and film he reviewed, his financial relationship with the Social
Security Administration (“SSA”), his hospital privileges, his current and past
complaints to the Board of Healing Arts, his prior history of license revocation, the
clarification of language used in the report, and the nature and scope of his current
practice.

                                          -2-
      On May 18, 2005, the ALJ conducted a supplemental hearing. At the hearing,
the ALJ denied Passmore’s subpoena request. Instead, Dr. Malcolm Brahams, an
orthopedic medical expert, testified at the hearing after having reviewed all of
Passmore’s medical records, including Dr. Ash’s report. Dr. Brahams testified that
no medical findings supported Passmore’s subjective claims of pain and that Passmore
could perform light work. In addition, a vocational expert testified that a hypothetical
person with Passmore’s impairments could not perform Passmore’s past relevant work
but could work in light, unskilled jobs that exist in significant numbers in the national
economy.

      Thereafter, the ALJ issued a decision finding that Passmore was not “disabled”
under the Social Security Act. After the Appeals Council denied review, Passmore
sought judicial review. On February 7, 2007, the district court reversed the ALJ’s
decision and remanded for further proceedings. The district court determined that our
decision in Coffin v. Sullivan, 895 F.2d 1206, 1212 (8th Cir. 1990), established that
due process affords social security claimants an absolute right to cross-examine
individuals who submit reports. Because the ALJ denied Passmore’s subpoena
request, the district court held that Passmore’s due process rights were violated. On
appeal, the Commissioner argues that Coffin does not provide an absolute right to
cross-examine and that any suggestion otherwise in Coffin is dicta.

II.   DISCUSSION

      A.     Precedent

       “This panel is bound by Eighth Circuit precedent,” John Morrell & Co. v.
Local Union 304A of the United Food & Commercial Workers, 913 F.2d 544, 550
(8th Cir. 1990), and cannot overrule an earlier decision by another panel, Jackson v.
Ault, 452 F.3d 734, 736 (8th Cir. 2006). However, when an issue is not squarely
addressed in prior case law, we are not bound by precedent through stare decisis.

                                          -3-
Brecht v. Abrahamson, 507 U.S. 619, 630-31 (1993); see Webster v. Fall, 266 U.S.
507, 511 (1925) (“Questions which merely lurk in the record, neither brought to the
attention of the court nor ruled upon, are not to be considered as having been so
decided as to constitute precedents.”). In addition, “[w]e need not follow dicta.” John
Morrell, 913 F.2d at 550. Dicta is “[a] judicial comment made while delivering a
judicial opinion, but one that is unnecessary to the decision in the case and therefore
not precedential[.]” Black’s Law Dictionary 1102 (8th ed. 2004) (defining obiter
dictum).

      In Richardson v. Perales, the Supreme Court addressed whether procedural due
process permits an examining physician’s report to provide substantial evidence for
a decision to deny benefits when the examining physician did not testify. 402 U.S.
389, 401-06 (1971). The Supreme Court stated:

      We conclude that a written report by a licensed physician who has
      examined the claimant and who sets forth in his report his medical
      findings in his area of competence may be received as evidence in a
      disability hearing, and despite its hearsay character and an absence of
      cross-examination, and despite the presence of opposing direct medical
      testimony and testimony by the claimant himself, may constitute
      substantial evidence supportive of a finding by the hearing examiner
      adverse to the claimant, 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. at 402 (emphasis added).

       Although the Supreme Court recognized that the claimant had a right to
subpoena and an opportunity to cross-examine the physician, it did not explicitly state
whether this right comes from the Due Process Clause of the Fifth Amendment or
from either a statute or regulation. The Court, however, did clarify that “[a]lthough
the claimant complains of the lack of opportunity to cross-examine the reporting

                                         -4-
physicians, he did not take advantage of the opportunity afforded him under 20 C.F.R.
§ 404.926 to request subpoenas for the physicians. . . . [T]he claimant as a
consequence is to be precluded from now complaining that he was denied the rights
of confrontation and cross-examination.” Id. at 404-05. Thus, it appears that the right
to subpoena and cross-examine discussed in Perales stems from the agency’s
regulations.

      The Fifth Circuit has “read Perales as conferring an absolute right to subpoena
a reporting physician.” Lidy v. Sullivan, 911 F.2d 1075, 1077 (5th Cir. 1990).
However, the agency’s regulations relevant in Perales provide:

      When it is reasonably necessary for the full presentation of a case, an
      administrative law judge or a member of the Appeals Council may, on
      his or her own initiative or at the request of a party, issue subpoenas for
      the appearance and testimony of witnesses and for the production of
      books, records, correspondence, papers, or other documents that are
      material to an issue at the hearing.

20 C.F.R. §§ 404.950(d)(1), 416.1450(d)(1) (emphasis added).1 Because the
regulations provide the ALJ discretion to issue a subpoena when “reasonably
necessary for the full presentation of a case,” the regulatory right to cross-examine is
qualified and not absolute. Therefore, we conclude that Perales does not afford social
security claimants an absolute right to cross-examine. See Yancey v. Apfel, 145 F.3d

      1
       Although Perales cites 20 C.F.R. § 404.926, this regulation was altered in
1980, and the language from the regulation was moved to 20 C.F.R. §§ 404.950(d)(1)
and 416.1450(d)(1). See Federal Old-Age, Survivors, and Disability Insurance and
Supplemental Security Income for the Aged, Blind, and Disabled, 45 Fed. Reg. 52078
(Aug. 5, 1980) (reorganizing the Code of Federal Regulations). Section 404.950
addresses the presentation of evidence at a hearing for disability insurance benefits
under Title II of the Social Security Act, and § 416.1450 addresses the presentation
of evidence at a hearing for supplemental security income benefits based on disability
under Title XVI of the Social Security Act. Both are relevant in this case.

                                          -5-
106, 112 (2d Cir. 1998) (“Although the Court mentioned the ‘right to subpoena,’ it
never specifically addressed whether this ‘right’ was limited or absolute. The Perales
Court indirectly acknowledged the ALJ’s discretion in these matters by noting that the
admission of consultative physicians’ reports did not threaten the integrity or fairness
of the administrative proceedings in light of the fact that such reports are subject to
‘cross-examination as may be required for the full and true disclosure of the facts.’”);
Flatford v. Chater, 93 F.3d 1296, 1305 (6th Cir. 1996) (“Thus, Perales did not
concern the issue of whether a social security benefit claimant who requests cross-
examination of a witness must be allowed to conduct it. Although the Supreme Court
used the phrase ‘right to subpoena,’ the Court did not discuss whether this right was
absolute or limited, or the nature of the right.”).

       In Coffin v. Sullivan, we discussed the due process requirements of social
security disability hearings with respect to post-hearing interrogatories posed to a
vocational expert. 895 F.2d at 1210-13. There, after the hearing, the ALJ determined
it necessary to obtain evidence through written interrogatories from a vocational
expert. Id. at 1209. The ALJ sent Coffin’s attorney a copy of the proposed
interrogatories and a letter indicating that Coffin could object to any of the
interrogatories or propose his own interrogatories. Id. The letter also stated that
Coffin had ten days to respond; otherwise, the ALJ would assume that Coffin had no
objections to the proposed interrogatories. After Coffin’s attorney did not respond,
the ALJ sent the vocational expert the proposed interrogatories. Coffin’s attorney also
received the vocational expert’s responses and another letter providing Coffin an
opportunity to comment on these responses. Again, Coffin’s attorney failed to
respond. Id. at 1210-11.

       We held that these letters satisfied due process and that Coffin waived his right
to cross-examine the vocational expert because his attorney had failed to object to the
interrogatories when the opportunity arose. Id. at 1212. However, in determining
whether the post-hearing interrogatories satisfied due process, the court said “[d]ue

                                          -6-
process requires that a claimant be given the opportunity to cross-examine and
subpoena the individuals who submit reports.” Id. (citing Perales, 402 U.S. at 402;
McClees v. Sullivan, 879 F.2d 451, 452 (8th Cir. 1989)). The district court interpreted
this statement as our circuit’s adoption of an absolute right to cross-examine
individuals who submit reports.2

        The Commissioner argues that this statement does not establish an absolute
right to cross-examine and that, to the extent that Coffin does support such an absolute
right, the language was dicta because it was not necessary to the decision in the case.
Passmore conceded that this statement was dicta in his appellate brief and during oral
argument, arguing that the language was persuasive but not binding. Nonetheless,
Passmore contends that the clear direction of Coffin indicates that due process requires
an absolute right to cross-examine. We agree with the Commissioner.

       First, Coffin does not mandate “an absolute right to cross-examine” but simply
refers to an “opportunity to cross-examine.” The phrase “opportunity to cross-
examine” could mean that the claimant is entitled to cross-examine individuals who
submit reports when a subpoena has been sought, or it could mean that the ALJ may
permit the claimant to cross-examine individuals who submit reports if, in the ALJ’s
discretion, the cross-examination is necessary to a full presentation of a case. See
Flatford, 93 F.3d at 1305 n.9 (asserting that our circuit had understood “opportunity
to cross-examine” as providing an absolute right). It is not clear which interpretation
of “opportunity to cross-examine” Coffin intended. However, Coffin cited Perales,
which, as explained above, addressed a qualified right to subpoena and cross-examine




      2
       The Second, Fifth and Sixth Circuits have also interpreted Coffin as adopting
an absolute right to cross-examine. Yancey, 145 F.3d at 112; Lidy, 911 F.2d at 1077;
Flatford, 93 F.3d at 1300.

                                          -7-
pursuant to the SSA’s regulations.3 Therefore, we do not believe that Coffin squarely
addressed and established an absolute right to cross-examine.

       Second, even if Coffin could be read to establish such an absolute right, it would
be dicta. The issue in Coffin was whether the interrogatories submitted by the ALJ to
the vocational expert violated due process. We held that the interrogatories did not
violate due process because Coffin’s attorney had failed to object to the interrogatories
when the opportunity arose, thereby waiving Coffin’s right to cross-examine the
vocational expert. Any judicial comment with respect to an absolute or qualified right
to cross-examine was unnecessary to the decision that the interrogatories did not
violate the Due Process Clause. In fact, the parties here agree that even if Coffin could
be read to articulate an absolute right to cross-examine, such a statement would be
dicta. Therefore, we are not bound by any Eighth Circuit precedent that due process
affords social security claimants an absolute right to subpoena and cross-examine. We
must now determine, for the first time, whether due process affords such an absolute
right.

      B.     Due Process

       “We review a challenge to the procedures of a social security disability hearing
de novo.” Hepp v. Astrue, 511 F.3d 798, 804 (8th Cir. 2008). Procedural due process
under the Fifth Amendment requires that disability claimants be provided a “full and
fair hearing.”4 Id. “Social security disability hearings are non-adversarial proceedings

      3
        Coffin also cited McClees, which questioned the reliability of post-hearing
reports when “it was not possible to either subpoena or cross-examine the interviewer
because his identity was unknown.” McClees, 879 F.2d at 452. McClees did not
address whether the right to cross-examine is qualified or absolute.
      4
       The first question in a procedural due process claim is whether the claimant has
been deprived of a protected liberty or property interest. Senty-Haugen v. Goodno,
462 F.3d 876, 886 (8th Cir. 2006). Although the Supreme Court has held that a

                                          -8-
and therefore do not require full courtroom procedures.” Id. However, to determine
whether the process afforded is sufficient under the due process clause, courts must
balance




Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

       The Fifth Circuit determined that social security claimants have an absolute
right to cross-examine a reporting physician. Lidy, 911 F.2d at 1077. However, the
Fifth Circuit did not use the Eldridge balancing test but instead relied on Perales,
stating that the Supreme Court’s reference to the “right to subpoena” and not the
“right to request a subpoena” implied an absolute right to cross-examine. Id. We
disagree with the Fifth Circuit’s conclusion because, as stated earlier, we conclude


person receiving benefits has a property interest in the continued receipt of benefits,
Mathews v. Eldridge, 424 U.S. 319, 332 (1976), neither the Supreme Court nor our
court has addressed whether a social security disability applicant has a protected
property interest in benefits he or she hopes to receive, see Walters v. Nat’l Ass’n of
Radiation Survivors, 473 U.S. 305, 320 n.8 (1985); Gipson v. Harris, 633 F.2d 120,
122 (8th Cir. 1980); but see Koch v. Sec’y of the Dep’t of Health, Educ., & Welfare,
590 F.2d 260, 263 (8th Cir. 1978) (“The Supreme Court has acknowledged, however,
that there is still a sufficient property interest in social security benefits to fall within
the protection against arbitrary government action afforded by the Due Process
Clause.”). In Perales, the Supreme Court assumed that due process applied to social
security disability hearings without determining whether Perales had a property
interest. 404 U.S. at 401-02. We did the same in Hepp. See Hepp, 511 F.3d at 804
n.5. As was done in Perales and Hepp, we will assume that due process applies
without determining whether Passmore had a property interest in the benefits.

                                            -9-
that Perales did not address an absolute, due process right to cross-examine but
instead addressed a qualified, regulatory right to subpoena and cross-examine.

       The Sixth Circuit, on the other hand, has determined that due process does not
afford a social security claimant an absolute right to cross-examine. Flatford, 93 F.3d
at 1306-07. In Flatford, because no cardiologist in the Knoxville, Tennessee area
would serve as a medical advisor to the SSA, the ALJ submitted interrogatories to Dr.
Donald Saunders, Jr., a cardiologist from Columbia, South Carolina. Id. at 1297-98.
After Dr. Saunders’s responses were submitted as evidence, Flatford sought to
subpoena and cross-examine him. Id. at 1298. The ALJ agreed to submit further
interrogatories but denied Flatford’s request to subpoena Dr. Saunders. Flatford
appealed, arguing that the right to cross-examine was absolute. To determine whether
due process affords an absolute right to cross-examine, the Sixth Circuit applied the
Eldridge balancing test, stating:

      The private interest involved here is Flatford’s interest in a fair
      determination of his qualification (or lack thereof) for social security
      disability benefits and a meaningful opportunity to present his case. A
      disability determination is based on a number of factors, including the
      objective medical evidence in the case. Because of the nonadversary
      nature of social security adjudications, the need to cross-examine every
      reporting physician is less crucial to the fairness and accuracy of the
      administrative law judge’s decision than it would be in an adversarial
      context. We are unpersuaded that interrogatories may not provide a
      meaningful opportunity for a disability claimant to confront the evidence
      he believes to be adverse to his claim.

      As illustrated by this case, the practice of using interrogatories to
      question medical witnesses appears to work well for discerning an
      applicant’s medical condition. While almost every claimant in every case
      would like to cross-examine the witnesses, we do not believe that the
      danger of inaccurate medical information or biased opinions is
      sufficiently great to cause us to believe that a claimant might erroneously
      be denied benefits without cross-examination upon demand.

                                         -10-
      Lastly, the burden on the administrative system of an absolute right to
      subpoena would be significant. Aside from the cost to the social security
      trust fund of paying for the travel expenses and fee of Dr. Saunders if he
      were subpoenaed, the number of physicians willing to provide medical
      advice to the administrative law judge would drop. The protection of the
      administrative law judge’s discretion to issue a subpoena would reduce
      the inconvenience to reporting physicians of having to be cross-
      examined by those claimants who, for whatever reason, believe that
      more objective medical information would be obtained by asking
      questions in person rather than submitting them in writing.

      A determination of Flatford’s claim requires that he have the opportunity
      to present all of his evidence and to confront the evidence against him.
      This opportunity, we believe, is present where cross-examination is
      available where reasonably necessary to the full development of the case.
      We agree . . . that an absolute right to cross-examination is not required
      in the social security disability benefits cases for the development of a
      complete record.

Id. at 1306-07. The Second Circuit agreed with the Sixth Circuit’s application of
Eldridge and likewise determined that the right to cross-examine was qualified.
Yancey, 145 F.3d at 112-13. Like the Second Circuit, we also agree that the Sixth
Circuit’s application of Eldridge is legally sound and persuasive.

      However, we must analyze independently the second prong of the Eldridge
balancing test because the ALJ in Flatford employed a different procedure than the
ALJ here. Specifically, the ALJ in Flatford submitted interrogatories to Dr. Saunders.
Here, Dr. Brahams testified in the place of Dr. Ash. Like Dr. Ash, Dr. Brahams was
an orthopedic medical expert. He had reviewed all of Passmore’s medical records,
including Dr. Ash’s report. At the supplemental hearing, Dr. Brahams discussed Dr.
Ash’s report along with the other medical records, and Passmore was given the
opportunity to cross-examine Dr. Brahams.



                                        -11-
       In analyzing the second prong, we do not think the different procedure in this
case alters the Eldridge analysis as conducted in Flatford, i.e., that Dr. Brahams’s
testimony created a greater risk of an erroneous deprivation of Passmore’s interest
than the use of interrogatories did in Flatford. Dr. Brahams was qualified and capable
of fully explaining the medical findings, including those contained in Dr. Ash’s report.
Passmore thus had an opportunity to confront the evidence he believed was adverse
to his claim. Additionally, if Passmore or the ALJ had found Dr. Brahams’s
explanations insufficient, then Passmore could have requested or the ALJ could have
obtained further clarification from Dr. Ash. Passmore, however, did not make such
a request after Dr. Brahams’s testimony. Therefore, based on the Eldridge balancing
test, we conclude that due process does not afford social security claimants an
absolute right to cross-examine individuals who submit a report. We must now decide
whether the ALJ abused his discretion under the SSA’s regulations when he denied
Passmore’s request to subpoena Dr. Ash.

      C.     Abuse of Discretion

      Because the agency’s regulations provide the ALJ discretion in the issuance of
a subpoena, see 20 C.F.R. §§ 404.950(d)(1), 416.1450(d)(1), “[w]e must decide
whether the [ALJ] abused his discretion in this case,” Flatford, 93 F.3d at 1307;
accord Yancy, 145 F.3d at 113.

       Passmore sought to subpoena Dr. Ash to question him regarding, “but not
limited to,” the length of the examination, the medical records and film he reviewed,
his financial relationship with the SSA, his hospital privileges, his current and past
complaints to the Board of Healing Arts, his prior history of license revocation, the
clarification of language used in the report, and the nature and scope of his current
practice. The ALJ denied the subpoena request, claiming that Passmore failed to
“state the important facts that the witness or document is expected to prove; and



                                         -12-
indicate why these facts could not be proved without issuing a subpoena.” See 20
C.F.R. §§ 404.950(d)(2), 416.1450(d)(2).

       We do not think that the ALJ abused his discretion because Passmore failed to
identify, as required by regulation, the important facts that Dr. Ash was expected to
prove or any explanation why these facts could not be proved without a subpoena and
cross-examination. See 20 C.F.R. §§ 404.950(d)(2), 416.1450(d)(2). For example,
Passmore could have testified as to the length of the examination and could have
asked Dr. Brahams to clarify the language used in Dr. Ash’s report. Passmore also
never indicated why the information he sought could not have been obtained through
interrogatories. Additionally, the bulk of the issues that Passmore identified as
subjects of his desired cross-examination are relevant only to a claim that Dr. Ash
lacked objectivity. However, Passmore failed to explain why he did not object to any
lack of objectivity of Dr. Ash prior to the examination pursuant to 20 C.F.R. §
404.1519j. Cf. Hepp, 511 F.3d at 805 (holding that due process is not violated when
a disability claimant is denied an opportunity to cross-examine an examining
physician for a lack of objectivity because the claimant failed to raise that the
examining physician lacked objectivity when an opportunity to make such a challenge
was provided pursuant to § 404.1519j). Because Passmore failed to establish that his
cross-examination of Dr. Ash was reasonably necessary for the full presentation of his
case, we conclude that the ALJ did not abuse his discretion by denying Passmore’s
request to subpoena and cross-examine Dr. Ash.

III.   CONCLUSION

      We conclude that the ALJ neither violated Passmore’s due process rights nor
abused his discretion when he refused to subpoena Dr. Ash. Accordingly, we reverse
and remand to allow the district court to determine if substantial evidence supports the




                                         -13-
ALJ’s decision to deny social security disability benefits and supplemental security
income to Passmore.5
                      ______________________________




      5
       Passmore argues that we should determine that substantial evidence supports
a finding that Passmore is disabled. We decline to address the merits of the
underlying case in the first instance.

                                       -14-
