Cross-Examination on Everest

Originally published by David Coale.

Even in the complex world of the modern administrative state, the Social Security Administration stands alone as “the Mount Everest of bureaucratic structures.” Barrett v. Berryhill, No. 17-41177 (revised Oct. 16, 2018) (citation omitted). Surveying that landscape, the Fifth Circuit concluded that a person claiming disability benefits did not have an automatic right to cross-examine a “medical consultant,” a doctor who reviews records without examining the claimant: “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 [relevant] form is reviewed by a second medical consultant, lessening the risk of error. When a claimant has legitimate concerns that a[] . . . form is inaccurate or misleading, existing regulations provide the opportunity to question the drafter.” (emphasis in original).

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