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Henry v. Berryhill

United States District Court, W.D. Washington, Tacoma

June 13, 2018

REBECCA P HENRY, Plaintiff,
v.
NANCY A BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

          DAVID W. CHRISTEL UNITED STATES MAGISTRATE JUDGE

         Plaintiff Rebecca P. Henry, proceeding pro se, filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of her application for supplemental security income (“SSI”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 8.

         After considering the record, the Court concludes Plaintiff has failed to show the Administrative Law Judge (“ALJ”) was biased or erred in her consideration of Ms. Catherine Phillips's opinion. However, the ALJ failed to properly consider the medical opinion of Dr. Kathleen Andersen. Had the ALJ properly considered Dr. Andersen's opinion, she may have included additional limitations in the residual functional capacity (“RFC”). The ALJ's error is therefore not harmless, and this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Deputy Commissioner of Social Security for Operations (“Commissioner”) for further proceedings consistent with this Order.

         FACTUAL AND PROCEDURAL HISTORY

         On May 20, 2013, Plaintiff filed an application for SSI, alleging disability as of June 9, 2009. See Dkt. 9, Administrative Record (“AR”) 16. The application was denied on initial administrative review and on reconsideration. See AR 16. A hearing was held before ALJ Mary Gallagher Dilley on August 12, 2015. See AR 38-66. In a decision dated July 27, 2016, the ALJ determined Plaintiff to be not disabled. AR 16-27. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council, making the ALJ's decision the final decision of the Commissioner. See AR 1-5, 20 C.F.R. § 404.981, § 416.1481.

         In the Opening Brief, Plaintiff asserts the ALJ: (1) is biased; (2) failed to properly consider the opinions of Dr. Kathleen Andersen, M.D. and Ms. Catherine Phillips, LICSW; (3) failed to properly consider Plaintiff's subjective symptom testimony; and (4) failed to properly consider the vocational expert's testimony. Dkt. 11.

         STANDARD OF REVIEW

         Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

         DISCUSSION

         I. Whether the ALJ was biased.

         In the Opening Brief, Plaintiff contends the ALJ was biased because the ALJ interrupted Plaintiff during the hearing and misinterpreted the evidence. Dkt. 11; see also Dkt. 15.

         ALJs who decide social security claims are presumed to be unbiased. Schweiker v. McClure, 456 U.S. 188, 195 (1982). This presumption “can be rebutted by a showing of conflict of interest or some other specific reason for disqualification.” Id. Moreover, although ALJs occasionally can reveal irritation or anger, “‘expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women … sometimes display, ' do not establish bias.” Rollins v. Massanari, 261 F.3d 853, 858 (9th Cir. 2001) (quoting Liteky v. United States, 510 U.S. 540, 555-56 (1994)). Instead, a claimant asserting bias must “show that the ALJ's behavior, in the context of the whole case, was ‘so extreme as to display clear inability to render fair judgment.'” Rollins, 261 F.3d at 858 (quoting Liteky, 510 U.S. at 551). Further, “actual bias, ” rather than the “mere appearance of impropriety, ” must be shown in order to disqualify an ALJ. Bunnell v. Barnhart, 336 F.3d 1112, 1115 (9th Cir. 2003).

         Here, Plaintiff contends the ALJ was biased because the ALJ interrupted Plaintiff during the hearing and did not properly consider the evidence. Dkt. 11, 15. During the ALJ hearing, it appears both Plaintiff and the ALJ occasionally spoke over one another. See AR 40-61. However, there is no indication the ALJ was biased or even impatient, dissatisfied, or annoyed with Plaintiff. For example, at one point, the ALJ instructed Plaintiff to take her time when she could not remember something. See AR 49-50. Further, while Plaintiff asserts the ALJ is biased because she misinterpreted and misconstrued the evidence, Plaintiff has provided only conclusory allegations that any alleged error was because of the ALJ's bias. For these reasons, the Court finds Plaintiff has not shown the ALJ was biased in this case.

         II. Whether the ALJ failed to properly consider medical opinion evidence.

         Plaintiff argues the ALJ erred by failing to properly consider the medical opinion evidence of Dr. Kathleen Andersen ...


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