TN 6 (06-23)

DI 33010.050 Subpoenas for Testimony and Other Documents

A. Policy on requesting a subpoena

1. Who can request a subpoena

A beneficiary (or recipient) or appointed representative may request that 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 for subpoena requests

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 the subpoena requestor could adequately show why the stated facts could not be proven without issuing a subpoena. Well-developed cases should contain sufficient evidence upon which to base a determination. If there is insufficient evidence, a better way to handle the situation is usually to request additional development.

3. Issuing subpoena

  1. a. 

    The regional commissioner (RC) or the RC's delegate must authorize the subpoena.

  2. b. 

    Issue a subpoena on Form SSA-1272 Subpoena-Disability Hearing. See DI 33095.060 for an exhibit of the form.

  3. c. 

    The disability hearing officer (DHO) is responsible for completing the identifying information on the SSA-1272.

  4. d. 

    The DHO and supervisory hearing officer (SHO) sign and date the SSA-1272.

  5. e. 

    Send the authorized subpoena by registered or certified mail with a return post office receipt request. 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 beneficiary (or recipient) or appointed representative wants to compel the attendance of an individual associated with the development of the case, e.g., disability determination services (DDS) physician, consultative examination (CE) physician, RO physician, etc. In these situations, use the alternative procedures in B.2 below.

B. Requesting the subpoena from the RO

1. When Form SSA-1272 is completed

Retain the DHU control copy of form SSA-1272 Subpoena- Disability Hearing.

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

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

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

2. Request involves persons who worked on case

  1. a. 

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

  2. b. 

    Decide if information can be obtained by written questions. If it can, request that the beneficiary (or recipient) or representative submit written questions.

  3. c. 

    Remove questions that are not relevant, e.g., asking whether the beneficiary (or recipient) is disabled under the Social Security Act.

  4. d. 

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

  5. e. 

    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 accommodate 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 a CE is warranted.

3. Subpoena denied

  1. a. 

    The person denying the subpoena request, i.e., the DHO, SHO, or the RC or their delegate, will explain the rationale for the denial.

  2. b. 

    The DHO will state a subpoena was requested and denied, and will include the rationale for the denial in their determination.

4. Subpoena issued-individual fails to comply

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

  1. a. 

    Refer the matter to the RO, who, in turn, will refer it to the regional attorney's office, and

  2. b. 

    Send a copy of the subpoena and a cover memorandum explaining the situation to the RO.

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DI 33010.050 - Subpoenas for Testimony and Other Documents - 06/06/2023
Batch run: 06/06/2023