United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
W. CHRISTEL UNITED STATES MAGISTRATE JUDGE
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.
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.
AND PROCEDURAL HISTORY
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.
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.
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
Whether the ALJ was biased.
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.
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).
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
Whether the ALJ failed to properly consider medical opinion
argues the ALJ erred by failing to properly consider the
medical opinion evidence of Dr. Kathleen Andersen ...