## Facts

- James Barrett sought Social Security disability benefits based on alleged disability beginning in 2008.
- After initial administrative denial and an Appeals Council remand due to a missing hearing record, an ALJ reconsidered the claim.
- The ALJ admitted a 2008 residual functional capacity (RFC) assessment by Dr. Robin Rosenstock, a nonexamining state agency medical consultant who reviewed the file.
- The RFC assessment found Barrett could sit and stand for six hours each in an eight-hour workday, lift 20 pounds occasionally and 10 pounds frequently, and frequently perform certain postural activities; a second state consultant agreed.
- Barrett requested that the ALJ subpoena Rosenstock for questioning or, alternatively, require her to answer written interrogatories; the ALJ declined both requests but noted Barrett’s objection.
- Using limitations generally consistent with the RFC (and slightly more restrictive in some respects), the ALJ posed a hypothetical to a vocational expert, who identified available jobs including cleaner, assembler, and laundry folder.
- The ALJ issued a partially favorable decision, denying benefits for June 2008 to April 2010 while granting benefits for a later period.
- The district court affirmed, and Barrett appealed, arguing the refusal to permit questioning of Rosenstock required reversal.

## Issues

1. Whether a Social Security disability claimant has an absolute right to question or cross-examine a nonexamining medical consultant whose report the ALJ considers.
2. Whether the ALJ abused discretion or violated due process or SSA regulations by refusing to subpoena the consultant or transmit written interrogatories in this case.

## Decision

- The Fifth Circuit affirmed the district court’s judgment upholding the Commissioner’s decision.
- The court held there is no absolute right to question nonexamining medical consultants in Social Security disability proceedings.
- Any right to question such consultants is qualified and depends on a case-specific showing that the requested questioning is necessary or materially useful.
- The ALJ did not abuse discretion in denying a subpoena or interrogatories because Barrett did not identify a concrete, non-speculative need for questioning, and the record otherwise permitted challenges to the consultant’s conclusions.

## Legal Principles

- Social Security disability hearings are nonadversarial; the ALJ has responsibility to develop the record, which affects what process is due.
- A claimant’s entitlement to question medical sources differs between examining physicians and nonexamining file reviewers; automatic questioning is not required for nonexamining consultants.
- Due process in this setting is evaluated using Mathews v. Eldridge factors, weighing the claimant’s interest, the risk of error and value of additional procedures, and administrative burdens.
- SSA subpoena procedures are discretionary and generally require a showing of necessity and materiality; denial is reviewed for abuse of discretion.
- General dissatisfaction with a nonexamining opinion, without specific identified conflicts or errors that questioning would likely resolve, is insufficient to compel a subpoena or interrogatories.

## Conclusion

The Fifth Circuit ruled that disability claimants do not have an automatic right to question nonexamining state agency medical consultants, and it upheld the ALJ’s refusal to subpoena the consultant or send interrogatories where the claimant failed to show a specific need for that additional procedure.


Barrett v. Berryhill, 906 F.3d 340 (5th Cir. 2018)