The Right to Cross-Examine Physicians in Social Security Disability Cases

Authors

Victor G. Rosenblum

Abstract

This Article examines the alternative readings and rationales of Richardson v. Perales regarding the cross-examination of reporting physicians in social security disability claim hearings. First, Part II compares the Sixth and Second Circuit's interpretation of the Perales rule, which supports the SSA's regulation and interpretation, to the Fifth Circuit's interpretation, which explicitly proclaims cross-examination, once duly requested, to be an absolute right. Part III questions whether the Perales Court's declaration that the SSA is “an [impartial] adjudicator and not . . . an advocate or adversary” remains empirically valid. Part IV discusses the SSA's recent assertions of management prerogatives that constrict the decisional independence of the SSA's Administrative Law Judges (ALJs). Part V questions the Sixth and Second Circuit's draconian predictions that physicians will be unwilling to participate in social security proceedings if they are required to submit to cross-examination. Currently, this prediction is conjectural and unaccompanied by authoritative data. Finally, Part VI concludes that cross-examination of reporting physicians in SSA hearings is an absolute right. I would not object, however, to a reformulation of the SSA's regulation that would make granting claimants' requests for cross-examination of physicians mandatory, unless the ALJ finds that such cross-examination would be superfluous or dysfunctional.

Recommended Citation

Victor G. Rosenblum, The Right to Cross-Examine Physicians in Social Security Disability Cases, 20 J. Nat’l Ass’n Admin. L. Judges. (2000)
available at https://digitalcommons.pepperdine.edu/naalj/vol20/iss2/5