BASIC (03-01)

A. Policy

1. General

A claimant/representative may request a subpoena be issued for either the appearance of a witness or the production of documents.

Acquiescence Ruling 91-1(5), Lidy v. Sullivan, Right to Subpoena an Examining Physician for Cross-examination Purposes — Titles II and XVI of the Social Security Act, applies to claimants who reside in Louisiana, Mississippi, or Texas at the time of the disability hearing.

2. Requirements

A request for a subpoena must:

• be in writing;

• be made at least 5 days before the hearing;

• identify the witness or document to be produced;

• describe the address or location of the witness or document with sufficient detail to find them;

• state the important facts expected to be proved; and

• indicate why the stated facts could not be proven without issuing a subpoena.

  NOTE: In disability hearing cases it is unlikely that one could adequately show why the stated facts could not be proven without issuing a subpoena. Well-developed cases will contain sufficient evidence upon which to base a determination. If there is insufficient evidence, a better way to handle the situation is to request additional development.

3. Issuing subpoena

Form SSA-1272-U4 is used to issue a subpoena. (See DI 33095.060 for an exhibit of the form.)

The DHO is responsible for completing the identifying information on the SSA-1272-U4.

The form will be signed and dated by the DHO and SHO; however, the subpoena mustbe authorized by the Regional Commissioner or his/her delegate.

Once the subpoena is authorized, it is sent by registered or certified mail with a return post office receipt requested. When the return receipt is received in the RO, the claims folder copy of the subpoena is sent to the DHU.

NOTE: Special procedures are followed in situations where a claimant /representative wants to compel the attendance of an individual associated with the development of the case, e.g., DDS physician, consultative examination (CE)physician, RO physician, etc. In this context, the alternative procedures in B.2 below are used.

B. Procedure

1. When Form SSA-1272-U4 completed

Retain the DHU Control Copy of Form SSA-1272-U4.

Request the subpoena via memorandum with the SSA-1272-U4 attached.

NOTE: If a hearing has been scheduled, it may be necessary for the request to be made by phone or for the hearing to be rescheduled to allow time for the subpoena to be issued.

Place the claims folder copy of the SSA-1272-U4 returned by the RO in the claims folder.

2. Request involves persons who worked on case

1. Be sure the requirements in A.2 above have been met.

2. Decide if information can be obtained by written questions. If it can, request the claimant/representative to submit same.

3. Rule out questions which are not relevant, e.g., asking whether the claimant is disabled under the Social Security Act.

4. Submit the questions to the DDS with a covering memorandum explaining the situation and with copies of the documents in question to refresh the memory of the individual to whom the questions are posed.

5. If written questions are not sufficient to prove the facts in question:

   • send a written memorandum to the DDS or RO requesting the presence of the involved individual,

   • make all efforts to accomodate the schedule of the individual, and

   • give the document in question appropriate weight in consideration of all the evidence of record if the individual refuses to appear. Also consider whether an additional CE is needed.

3. Subpoena denied

Explain why a subpoena was denied. (This explanation is provided by the person denying the request, i.e., DHO, SHO, or Regional Commissioner or his/her delegate.)

Include the fact that a subpoena was requested and the rationale for the denial in the DHO's decision.

4. Subpoena issued-individual fails to comply

If a subpoena was issued and the individual fails to comply:

• refer the matter to the RO, who, in turn, will refer it to the Regional Attorney's office, and

• send a copy of the subpoena and a covering memorandum explaining the situation to the RO.