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Eighth Circuit: Don?t Save Claims of Physician-Examiner Bias for Trial

By E.L. Lipman

In an interesting opinion issued yesterday, a panel of the U.S. Court of Appeals for the Eighth Circuit denied the appeal of the widow of one Cloyd Hepp, from the earlier denial of Social Security disability benefits to Mr. Hepp. Mrs. Hepp sought to set aside the decision of the Social Security Administration, in part, because at the hearing below, the Administrative Law Judge refused to permit cross-examination of the agency?s physician examiner as to other cases in which the physician had rendered an opinion that was unfavorable to the claimant. Mrs. Hepp argued that this evidence would have shown that the physician was ?biased against disability claimants? and that he has ?consistently found ?no restrictions? for a substantial number of claimants referred to him for consultative examinations.?

Holding that such inquiries were not required, the panel detailed:

[D]ue process is not violated in social security disability hearings when the claimant fails to exercise the procedural safeguards that would have addressed his concerns. Because Hepp did not exercise his procedural right to object to Dr. Blankenship?s lack of objectivity under § 404.1519j, the ALJ did not violate Hepp?s due process rights by denying such a challenge on cross-examination. In addition, to permit Hepp the right to submit evidence from other claimants? cases to challenge the consultative examiner?s lack of objectivity would substantially burden the social security disability hearings process because it would almost certainly result in mini-trials of unrelated and irrelevant claims. Furthermore, such a procedure would raise considerable privacy concerns as each patient?s medical records were necessarily scrutinized. These reasons, in combination with the procedural safeguards already available under § 404.1519j, outweigh Hepp?s private interest in obtaining benefits ....

The panel?s complete analysis is accessible here.

Full post as published by Within the Scope on January 08, 2008 (boomark / email).