ok mr kelly it please the court the issue today is what right does a claimant in a disability claim to cross examine a not examining state agency physician upon who failed a relies to deny their of or not the extension but already encompasses the right to to have the cross examination of a non examining expert and that there is no basis under the law to fashion a rule based upon examining relationship alone examining physicians was their first position and that you know as you pointed out in the decision to smith was that that was in examining physician but also that there was a further distinction that they tried to allege that there was a distinction between and a treating physician who examined the at the claimant versus a state versus a consultative examiner order by the order by the administration which you also said was not the distinguishing factor or anything mentioned in richardson versus paralysis the court actually enriches some vs paralysis when it talked about the cross examination and everybody refers to the actual at which they discuss the that it was a hearing examiner but the court goes on to state that the fairness you know it in the you know in the integrity of the admission of the consultative report which would otherwise be hearsay is they are still subject to being material and the use of subpoena and the consequent cross examination and i think that's where that's where we got to the point of time to cross examine the state agency passed since that form and been filled out what would you have gleaned from any cross examination that would have changed the outcome in terms of the overall impact in  terms of the cross examination is that the administration is part of their process has has put in that these individuals are highly qualified and in in  the disability review process and so in terms of attempting to glean additional information out of that it would go to the impact of the extent of the individual's time  reviewing the file who prepared this it goes all the way to it goes down to the credibility and reliability of the particular opinion in this case i think it's doubtful they remember from that a form years before i mean maybe we ask about their particular procedure their general procedures not in general procedures but but more so in terms of the you know who prepared it their understanding of agency positions and agency process one of the things that has occurred more recently is the d d s administration refer doesn't necessarily handle all the files in texas they refer them to other jurisdiction for example arkansas in the eighth circuit those doctors may not have an understanding of the act of the uplink ability of stone versus heckler where you know in terms of the minimal applications they could obit impairments that would otherwise be considered minimally severe under the fifth circuit standard so the doctors would need the doctors indeed in texas d d s would be or louisiana or mississippi would be trained in terms of the severity standard versus the significantly impaired standard that is used say in the eighth circuit so it goes down to the policies in the procedures that the individuals particularly trained for to determine whether or not the opinion is supported at that point but more importantly in this case dr rosen snacks opinion was the key opinion relied upon by the administrative law judge that even even if that we're not suggest i guess that the point  is that by denying the cross examination or even the submission minimally of the in a raga tori's is that we were denied the opportunity to make any type of offer of proof we're looking to make a record that in know in a regular trial did you have any any inkling that there was actual evidence out there or that there was information that would help your position our that the reporting provision didn't know what he was doing the only information that we really been able to gather is been what has been able to gather through others you know in terms of transparency websites and different things to the state of texas and but again the information is not well for example in terms of how much money dr rosenstock receives from the d d s of a yearly basis but in terms of that that really goes more to weight but but for example dr rosenstock is paid over two hundred thousand dollars a year to review these types of files and then through other information we have discovered that they are basically paid seventeen dollars a file to review these cases so if you divide seventeen by two hundred thousand dollars a year it works out that these that the doctors have maybe eight minutes to review every single file and that they're relying extensively on disability examiners who we have no idea what their training is in these cases you know that some of the payment was and how it catered to the doctor when he had to give a deposition or we had here in court you're just presuming of us all reviewing time right there's nothing to suggest that they're doing and that they are making any appearances for any other type of deposition activity or whether or not they have their own practices and that's part of what we're saying is that we're looking to establish that information because at this point the you know the judges are the gatekeepers on these cases and we're limited by what we one of the reasons that that was one of the things that we have pointed out was that no one has that the magistrate judge did not address the in iraq at tory's that were submitted along with to the request as an alternative means in terms of trying to  basic or starting information from the from the state agency for physicians to begin with before we ever started getting into the inquiry of whether or not they needed to actually appear and testify at the hearing itself no other circuit follows the lity decision on an absolute right to a subpoena so why shouldn't we limit it to its facts which are is for examining physicians well all the other cases that are out there that distinguish themselves from uses the result that occurred in some of those files would not of occur so for example particularly like with the flat for versus tater case out of the six circuit that involved the post hearing case  hearing information because of the whole of the schweiker morgan and newton rule they have to follow the hallux procedures in those cases and so they the responses in those particular situations would be proffered by the judge and under the proffer rules of how likes you wind up they must offer the opportunity for a supplemental hearing in the appearance of the attorney so that they can be reconciled factually because most of the time with our with our strict with our strict application of the internal rules of social security would have avoided the the consequence of much of almost all the other cases that you know that distinguish those decisions like butera in the seventh circuit i mean there's there's a right now many more than that across the country she isn't uniformity particularly important but uniformity isn't horton but the but the but the facts of the situations of a lot of these cases have been changed by their own regulatory changes and how they are conducting their hearings at this point anyway four four nine thirty six has been amended one time already to provide that medical experts and vocational experts can appear by telephone that was one of the things that was pointed out in the passport case was that they were concerned about bringing a doctor in from south carolina tech to tennessee to testify now because of d t c hearings and because of telephone opportunities we have vocational experts and medical experts appearing in cases in texas from california all the way to florida on a regular basis the d d s officials or city d d s doctors are sitting down and in austin it simply a matter of hooking up a telephone for them to appear and testify and fact is nine thirty six has been sent back again for another revision that appearance by telephone fee but it varies from state to state in each case texas has a opted to take a piecemeal approach that they are paid on a per file basis other states have the doctors on staff and  a particular salary so presumably they would be available to him to testify in in each situation depending upon you know i mean it would be the be an additional fee or it would just simply be part of their returning back though to the point of the in for the type of information that could be obtained in these particular cases and that's that's the reason that we have submitted the additional case of good night versus chaytor where the doctor actually testified when they were able we were when they were able to cross examine individuals that they would that they in fact did sign off on r f c opinions and different  aspects without ever reviewing the file at all and that they were totally dependent upon d e c disability examiner fired me for those individuals and they did not know the qualifications of the individual who put in the information and so this is going to be important more so important going forward in these cases this is yes this is a rule for the law as it existed here but in terms of going forward on the in the law there is not a situation or the they have changed the rules with regards to treating source treating sources and there is no longer a deference to  or a preference for treating source opinions and that the doctors and the ale days are going to be relying upon testimony or opinion evidence from individuals that we will have no access to in you know going forward it's just as we pointed out that other agencies are now starting to be called into question over their positions where they are basically tilting the table in their favor to manufacture a widget by precluding the ability to have access to these doctors and that's where we are on this case has that we attempted to comply i mean even if you take the fact of terms of the that it is a qualified right we still put insufficient information and put into the record you know the request itself identifying the stuff as a bar by four forty nine fifty and were denied the opportunity of even having the  right to cross examine the report of an examining physician should be extended and of course our position is that it should not be and our position is that it is not justified by the  which was based upon paralysis was explicitly about the report of an examining physician and did not address non examining physicians and in a broader sense was about  applying more conventional or court rules of evidence or procedure to the administrative context and back in one nine hundred seventy one when paralysis was decided as pows it was still a fresh issue before the court but now it is well settled that the federal rules of procedure cannot apply in the administrative context and that we will generally need to have a less formalized process when we deal with the huge amount of evidence that has to be and we are not advocating that either lardy or tanner be overturned we can simply note that light in tanner as they currently stand are kind of out on an island as noted in counsel's opposing counsel's argument  to depose our at least ask questions to the reporting physician isn't that what town are involved your honor it was a believe in tanner it was a vocational expert it was a report it was a report draft or after the fact and while tanner be examining then i said true but as a law i would say that tanner as it applies to a vocational expert or a vocational expert is as a matter of course available for cross examination in our disability hearing process and we consider that to be a fundamental part of the process relevant to this case i would say i would submit that is not your honor it because it is deals with  what is essentially a routine medical opinion document produced in the context of the earlier consideration of the case so what assuming y d's i mean we have to it's it's on the books you can't get rid of it what's the basis for distinguishing between subpoenas of examining physician and someone here just reviews the records and makes an opinion especially given i think the secretary's argument in that case was that if anything there was more of a right to subpoena for the caves we're dealing with now well you're when it comes down to it and that's what my last point in dressing kind of light is history is that this is this represents a departure from the proper standard which is to allow the l j the discretion to conduct the hearing as your she sees fit and when you when you grant this absolute right your course you're taking away discretion from the l j and that while i did that in the context of example of an examining source it was limited to that examining source in a non examining source simply doesn't have the same evidentiary weight and also it's not going to have the same context i believe it as noted in opposing counsel's argument we're dealing with a doctor who is not necessarily going to remember it i believe in one of the one of the additional legal authorities that t player presented that talked about v a hearings at the value of subpoenaing a v a report grafter who is going to as a necessity refer back to his report to refresh his memory on something that happened two years ago five years level we have we have physicians on staff under contract to the state agencies who review the medical evidence as it stands at the time and offer their medical opinion on the physical or mental capabilities of the individual in question that extending lidy would be would be easy and without a new real consequence to the agency we we respectfully disagree lighty has not had i don't think a huge impact in my experience have been with the agency many years subpoenas do happen they're not necessarily disruptive but part of that is because they're not commonly requested most of the time the examining source is the plaintiff's own physicians and when we send somebody out to cause a tentative examination it's not common even then to have that examining source subpoenaed for cross examination during the hearing however we're dealing with an entirely different class of evidence here we have counsel we have state agency medical consultants who offer opinions in every last case these individuals are a bottleneck there they're often retired physicians who are doing this are contract basis after they're done with their practices there's a license physicians they're still experts for our purposes but they are a bottleneck in the system and for us to randomly remove them from their jobs to have them testify even if it is telephonically it is going to have an impact on our ability to process cases and arguably an impact on our ability to get physicians who are willing to do this work there are and i would not also know that in many cases we have multiple state agency medical consultants in the case we'll have a physical opinion will have a mental opinion if there is and then we'll have two more physicians offer opinions on reconsideration so that's a possibility of four for a routine case and in an odd case like mr barrett's where it has multiple levels and multiple applications it's got a complex procedural history where we had multiple applications and consolidations and whatnot we've had several over over time and as a matter of fact they were subpoenas for three physicians in this case two of whom ended up being mooted due to the coverage of another decision that covered a period of time but you're into the question of who would pay i mean normally in a civil lawsuit the party issues the subpoena would have to pay for travel costs and everything else you are my understanding is that the agency would be wholly responsible for that we're responsible for providing our employees for examination in any court context  part of their normal salary or would there be an additional fee charge in the event or travel there might be additional compensation but in the event of telephonic testimony i think it would and they may have to travel i don't know if there is a video conferencing set up in every jurisdiction or every place where there are available there might be minor travel it might be within a certain commuting area i would not anticipate that it would be a huge expense in that respect your honor right and yet my final point was simply that that testimony is going to have a questionable use simply because of the age of the decision and the inability of these professionals given their workload to distinguish between one particular claimant that they dealt with many years ago many months ago and the ability to provide a great deal of context beyond what's already in the report itself a far as the circumstances in this particular case are owners we would submit that this is not a good case for a due process challenge this is a case where the plaintiffs presented three identical form letters and we respectfully disagree with posing counsel that that these letters stated information that did satisfy our requirements for the issuance of a subpoena under four hundred five nine fifty two they needed to state and in particular what we need to have is a reason why this testimony is necessary for the decision in this case and i think is opposing counsel acknowledged his concerns weren't about this particular case necessarily they were about the program in general and his suspicions as to what may or may not be happening in a in a regional or national context and that was the specific reason the ael jay declined to order the subpoenas in this case and he italic sized it in his decision is that it was not necessary for this particular demonstration that additional information is necessary for a full presentation of italics this particular case the underside is not inclined to burden the state agency and that was a specific reason and that is entirely consistent with our our agency's rules and policies because it wasn't raising a question of that that would lead to prohibit evidence as to when whether mr barrett was or was not disabled and another fundamental premise that i'm have to respectfully disagree with is that this particular opinion formed the basis of the jays assessment and did not dale did not adopt this is says meant he found a more restricted residual functional capacity than this this particular state agency medical consultant assessed which is what they all james do they do they might use it as a starting place but they're going to make their own assessment that's going to be based on the testimony that they hear that's going to be based on the evidence that's received into evidence after these physicians may offer their reports and in many cases there are even more exhibits that are exhibit that are submitted after the state agency medical consultants offer their opinions then there were when the state agency medical consultant gave it in the first place you can have it's very common to see four or five exhibits in the file at the time this state agency medical consultant offers the opinion and maybe a dozen more later it's entirely common for that to happen and as a matter of fact our rules specify that we should only give the state agency medical consultants opinions credit to the extent they are consistent with the evidence that is received after their opinion was  all right i've got a short list of what the what we would submit the case is not about i would submit the case is not about shielding state agency medical consultants from having to testify we believe the existing rules are adequate to let our ale days decide on a case by case basis whether it is reasonably necessary for this individual to testify we are absolutely not taking the position that these individuals are immune to being subpoenaed if this is not about compliance with agency policy it is our position that agency policy was properly followed in this case this is not about a claim that that the l j was of the position that the state agency medical ball we would point you to the part in the decision where the l j specifically cited the appropriate standard under the regulations he's not trying to shield anything or hide something he's simply saying the case wasn't made in this particular case paralysis this is not about paralysis because paralysis was explicitly restricted and only considered examining sources not not examining sources this is not about the need for a specific ruling about state agency medical consultants we are not of the position there are not no i'm repeating myself a little bit but we're not of the position that this state agency medical cult sultans are immune to in any way well in example and it would be appropriate to subpoena ah i would i don't want to do his homework for him but i would say for example in the context of a decision that is so divergent from the medical evidence of record i could anticipate a subpoena request that says i would be interested in knowing how this consultant came to the conclusion based on the physician opinions a record that this individual for example  needed a came to walk and yet this state is a medical consultant opined that this individual could do medium work which involves standing all day care in lifting and carrying out jacks weighing up to fifty pounds if there's a if there's a huge diversion if there's no no connection between the evidence and the opinion being offered i think that would either be a valid basis for cross examining the state agency medical consultant or what i think is probably the more common approach would be to say look at this state agency medical consult opinion it has nothing to do with it in your honor you shouldn't give it any credit and that is the usual context in which this is going to be addressed and finally i'd say this is not about the characterizations of players making it is briefs about the l j having petty reasons for for dismissing a subpoena request this was in a fit of pique this wasn't because the l j was insulted if you take a look at the request your honor if you intend to rely on doctors this doctor's opinion you should have more information about the process of disability determination service they've gotten too much difference i'm summarizing here yours and they're saying that it's typically cursory typically not consistent with the evidence and perhaps maybe they did get did get a little prickly at the at the suggestion that he didn't know what his agency was up to and as a judge lik noted in the decision he has personally visited the d d s is the deficit in knowledge that was suggested in mr burke halters letter simply wasn't there now he didn't exactly go to investigate the sources simply is very technically oriented individual and the fact that he italic size a specific reason which correlates to the regulation in question i think is suggestive of why he made that ruling and my final you don't find in the plaintiff's favor on that and i would suggest that you know that that's not consistent with the general principles of view that even if i lose i win it doesn't work that way your honour's and that him requesting an absolute right to cross examine we are not infringing on the judge's discretion on how they manage their files for example in this case the judge excluded two of the opinions because they were conducted at after the point at which mr baird had been granted benefits the other aspect of this is that he could have also agreed that in terms of the mental impairment diena guy had him head opined that he was limited to essentially unskilled work because mr barrett was over fifty at the time frame involved then that would mean that if there's if he's limited unskilled work there would be no issue of transfer ability the judge could simply inquire are you in are you engaging that the individual is disabled by the mental impairment or does the mental impairment eliminate an issue that i have to decide at the time  the fact that the judge made a more restrictive r f c is not what's important it's the primary factor is a good is because mr barrett was over fifty if he was limited to sedentary unskilled work the  would direct a finding of disabled so in terms of the finding in terms of the opinion that he had up to be a doctor that he could be on his feet for six hours and an eight hour workday stand at bar and then lifting carry twenty pounds occasionally in ten pounds frequently the evidence and the file the information in the file was at the time doctors the road the original consultant examiner performed his exam there was little or no limitation but by the time you get to january of two thousand you know a later time frame three years up in the hospital would sink a peak in january we're exhibits more weakness on the left side and then by the time we finally get to june of two thousand  limping and unable to move about there was a progression of symptoms here and so by bates starting with the foundational prospect which is what the opposing counsel was is the judge rather than conducting a  was going to start from the position of the state agency with doctor's opinion and see if anything had changed but that's not so what we're trying to get access to is trying to determine in terms of the questions is did they have sufficient information when it comes to the legal error as this core pointed out in in the in the more recent cases in terms of the mirrors neal and if the decision or how the judge reached the r f c omits certain important information like additional cross examine of the state agency doctor then the ultimate conclusion is not based upon the substantial evidence and it must be remain in terms of the type of information that we're getting to and whether or not it's important the commissioner has recently amended the rules and regulations and i'm here for all four seventeen forty now requires representatives to disclose in writing at the time of the medical are ok to pin it it's submitted that whether or not the representatives employees or any individual upon tracking with the representative drafted prepared or if you the medical or vocational appoint opinion sauce for the good to be sauce for the game here if we have to disclose this information we should be able to inquire into that type of information from the state agency medical sources and also when it comes down to it opinion evidence as pointed out by the by richardson versus paralysis is nurse they are they are using these medical advisors to help them with complex matter but ultimately they start and end with medical opinions either from a state agency from a consultative examiner or a treating physician there are five people who we can contact in these particular cases examining physicians we have an absolute right same with treating physicians we have an absolute right if a medical advisor shows up at the hearing we have the right to cross examine that medical advisor if a medical adviser gives testimony through iraq or tory's after the hearing under the hallux rules of proffer and supplemental hearing we have the right to talk to that doctor five doctors there's one that's still minute from that and that is the one doctor that the judges and almost exclusively rely upon to deny the claims when it comes down to it