Sullvian v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 12/18/2015. (KAM, )

FILED
2015 Dec-18 AM 09:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
CHARLES HENRY SULLIVAN IV,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No. 5:14-cv-02218-JEO

MEMORANDUM OPINION
Plaintiff Charles Henry Sullivan IV brings this action pursuant to 42 U.S.C.
§ 405(g), seeking review of the final decision of the Acting Commissioner of
Social Security (“Commissioner”) denying his applications for disability insurance
benefits and Supplemental Security Income (“SSI”). (Doc. 1).1 The case has been
assigned to the undersigned United States Magistrate Judge pursuant to this
court’s general order of reference. The parties have consented to the jurisdiction
of this court for disposition of the matter. (Doc. 9). See 28 U.S.C. § 636(c), FED.
R. CIV. P. 73(a). Upon review of the record and the relevant law, the undersigned
finds that the Commissioner’s decision is due to be reversed and remanded.
1

References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of
the Court to the pleadings, motions, and other materials in the court file, as reflected on the
docket sheet in the court’s Case Management/Electronic Case Files (CM/ECF) system.

I. PROCEDURAL HISTORY
In May 2013, Sullivan filed applications for disability insurance benefits
and SSI, alleging disability beginning June 1, 2005. (R. 135-51).2 His
applications were denied by the State Agency. (R. 53-54). He then requested a
hearing before an Administrative Law Judge (“ALJ”), which was held on March
18, 2014. (R. 35-52). Sullivan, his counsel, and a vocational expert attended the
hearing. (R. 35). The ALJ issued a decision on May 14, 2014, finding that
Sullivan was not disabled. (R. 18-34).
Sullivan requested the Appeals Council review the ALJ’s decision. (R. 12).
The Appeals Council denied Sullivan’s request for review on September 19, 2014.
(R. 1-5). On that date, the ALJ’s decision became the final decision of the
Commissioner. Sullivan then filed this action for judicial review under 42 U.S.C.
§ 405(g). (Doc. 1).
II. STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly
circumscribed. The function of the court is to determine whether the decision of
the Commissioner is supported by substantial evidence and whether proper legal

2

References herein to “R.__” are to the page number of the administrative record, which
is encompassed within Docs. 4-1 through 4-11.
2

standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct. 1420,
1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This
court must “scrutinize the record as a whole to determine if the decision reached is
reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is “such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Id. It
is “more than a scintilla, but less than a preponderance.” Id.
The court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If
the court finds an error in the ALJ’s application of the law, or if the ALJ fails to
provide the court with sufficient reasoning for determining that the proper legal
analysis has been conducted, it must reverse the ALJ’s decision. See Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
III. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and SSI under the Social Security Act, a
claimant must show the inability to engage in “any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be
3

expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 42
U.S.C. § 1382c(a)(3)(A). A physical or mental impairment is “an impairment that
results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 423(d)(3); 42 U.S.C. § 1382c(a)(3)(D).
Determination of disability under the Social Security Act requires a five
step analysis. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). Specifically, the
Commissioner must determine in sequence:
whether the claimant: (1) is unable to engage in substantial gainful
activity; (2) has a severe medically determinable physical or mental
impairment; (3) has such an impairment that meets or equals a Listing
and meets the duration requirements; (4) can perform his past relevant
work, in light of his residual functional capacity; and (5) can make an
adjustment to other work, in light of his residual functional capacity,
age, education, and work experience.
Evans v. Comm’r of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014)3 (citing 20
C.F.R. § 404.1520(a)(4)). “An affirmative answer to any of the above questions
leads either to the next question, or, on steps three and five, to a finding of
disability. A negative answer to any question, other than step three, leads to a

3

Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered
binding precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
4

determination of ‘not disabled.’” McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th
Cir. 1986). “Once a finding is made that a claimant cannot return to prior work
the burden shifts to the [Commissioner] to show other work the claimant can do.”
Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted). The
Commissioner must further show that such work exists in the national economy in
significant numbers. Id.; Evans, 551 F. App’x at 524.
IV. FINDINGS OF THE ALJ
Sullivan was 28 years old on his alleged onset date and 37 years old at the
time of his hearing before the ALJ. (R. 135). He has a high school equivalency
degree and served in the military. (R. 193). He has past relevant work experience
as a delicatessen stocker, restaurant floater, and wire system installer. (R. 46-47).
He alleges that he has been unable to work since June 1, 2005, due to posttraumatic stress disorder (“PTSD”), depression, anxiety, heart attacks, and high
blood pressure. (R. 135, 143, 192).
The ALJ found that Sullivan had severe impairments of ischemic heart
disease, hypertension, anxiety disorder, and affective disorder, but that his
impairments, alone and in combination, did not meet or medically equal the
severity of one of the listed impairments in the Listings.4 (R. 20, 24).

4

The Listings are located at 20 C.F.R. pt. 404, subpt. P, app. 1.
5

The ALJ then found that Sullivan had the residual functional capacity5
(“RFC”) to perform medium work, subject to the following limitations: he can
frequently climb ramps and stairs, but never climb ropes, ladders, or scaffolds; he
should avoid concentrated exposure to extreme heat and cold; he should avoid all
exposure to unprotected heights and dangerous, moving, and unguarded
machinery; he should avoid concentrated exposure to dust, fumes, gases, and poor
ventilation; and he should have casual and non-intensive interaction with coworkers and the general public. (R. 26). The ALJ further found that Sullivan is
able to understand, remember, and carry out complex tasks if they are broken
down. (Id.)
The ALJ determined that Sullivan could not perform his past relevant work
as a delicatessen stocker, restaurant floater, and wire system installer, because the
RFC for that work exceeded his current RFC. (R. 29). However, based on the
testimony of the vocational expert, the ALJ found that there are other jobs in the
national economy that Sullivan is capable of performing, including packager,
bander, and general helper in manufacturing. (R. 30, 48-49). The ALJ thus
concluded that Sullivan was not disabled. (R. 30-31).

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Residual functional capacity is the most a claimant can do despite his or her
impairment(s). See 20 C.F.R. §404.1545(a)(1).
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V. DISCUSSION
Sullivan argues that the Commissioner’s decision should be reversed for
two reasons. First, Sullivan argues that the ALJ did not present a proper
hypothetical question to the vocational expert based on the medical evidence in
the record. (Doc. 10 at 10-18). Second, Sullivan argues that the ALJ was biased
against him. (Doc. 10 at 18-28). The Commissioner responds that the ALJ
properly evaluated the medical evidence in the record and properly assessed
Sullivan’s RFC, and that Sullivan has failed to show any bias on the part of the
ALJ. (Doc. 11 at 5-19).
A.

The ALJ’s Hypothetical Questions to the ALJ
As noted above, once a finding is made that a claimant cannot perform his

past work, the burden shifts to the Commissioner to show that there is other work
in the national economy that the claimant is capable of performing. Foote, 67 F.3d
at 1559. “The ALJ must articulate specific jobs that the claimant is able to
perform, and this finding must be supported by substantial evidence, not mere
intuition or conjecture.” Wilson, 284 F.3d at 1227. One method of determining
whether the claimant is able to perform other work is through the testimony of a
vocational expert. Id.; Phillips v. Barnhart, 357 F.3d 1232, 1440 (11th Cir. 2004).
“In order for a vocational expert’s testimony to constitute substantial evidence, the
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ALJ must pose a hypothetical question which comprises all of the claimant’s
impairments.” Wilson, 284 F.3d at 1227; Winschel v. Comm’r of Soc. Sec., 631
F.3d 1176, 1180 (11th Cir. 2011) (quoting Wilson).
Here, the ALJ asked the vocational expert the following hypothetical
questions (among others) at the hearing:
Q. ... Let’s assume we have a hypothetical individual with the
claimant’s education, training, and work experience, who would be –
Mr. Alpha, who would be limited to a maximum of a medium range
of work as that term is defined under the regulations, would be
limited to occupations that do not require the climbing of ropes,
ladders, or scaffolds, and frequent climbing of ramps or stairs, would
need to avoid dangerous moving, unguarded machinery or
unprotected machinery or unprotected heights, would be able to
understand, remember, and carry out complex tasks if broken out into
smaller, simpler sections to be completed, would be able to – limited
to casual, non-intensive interaction with coworkers or the general
public. Would Mr. Alpha be able to perform any of the past relevant
work?
A. Kitchen helper, your honor.
...
Q. Let’s assume we have a second hypothetical individual with the
claimant’s education, training, and work experience. He’ll be Mr.
Beta. He has the same limitations as Mr. Alpha, except that he would
need to avoid concentrated hot or cold temperature extremes, and
would need to avoid concentrated dusts, odors, fumes, gases, or poor
ventilation. Would Mr. Beta be able to perform any of the past work?
A. No, your honor.
Q. Are there other jobs in the national or regional economies that a
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person with those limitations could perform?
A. And we’re still staying at the medium level, am I correct?
Q. That’s correct.
A. Okay. A packager, hand, DOT 920.587-018, exertional level
medium and an SVP of 2, unskilled. ... Second, a bander, DOT
762.687-010, exertional level medium and an SVP of 2, unskilled. ...
And third, a general helper, manufacturing, DOT 809.687-014,
exertional level medium and an SVP of 2, unskilled.
(R. 48-49). The second hypothetical question (regarding “Mr. Beta”) tracked the
RFC finding in the ALJ’s decision. (See R. 26).
Sullivan argues that the ALJ’s hypothetical questions to the vocational
expert did not account for all of his limitations and restrictions. Specifically, he
argues that the ALJ’s questions did not include “several of the significant
limitations that were given by Dr. [Robert] Estock,” a State Agency consulting
psychologist who reviewed Sullivan’s records and completed a mental RFC
assessment of Sullivan. (Doc. 10 at 14).
The ALJ afforded “significant weight” to Dr. Estock’s opinion, which she
noted was “consistent with the evidence of record.” (R. 29). Dr. Estock
determined that Sullivan has “sustained concentration and persistence limitations,”
including moderate limitations in his ability to “carry out detailed instructions,” to
“work in coordination with or in close proximity to others without being
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distracted,” to “complete a normal workday and workweek without interruptions
from psychologically based symptoms,” and to “perform at a consistent pace
without an unreasonable number and length of rest periods.” (R. 67). He opined
that Sullivan”will be able to complete more complex tasks if they are broken down
in smaller, simpler sections”; that Sullivan “will benefit from written instructions
because of limited ability to concentrate and remember spoken instructions”; and
that Sullivan “needs a well-spaced work environment” and “may sometimes react
to stress with anger or panic.” (R. 68).
Dr. Estock also determined that Sullivan has “social interaction” limitations,
finding that Sullivan is moderately limited in his ability to “interact appropriately
with the general public,” to “accept instructions and respond appropriately to
criticism from supervisors,” and to “get along with coworkers or peers without
distracting them or exhibiting behavioral extremes.” (Id.) He opined that
Sullivan’s “ability to interact with the general public will be inconsistent”; that
“[s]upervision and criticism should be given in a manner that is supportive and
nonthreatening”; and that Sullivan “can tolerate casual, non-intensive interaction
with coworkers but may at times display anger or anxiety under stress.” (Id.)
At Step Two of the evaluation process, the ALJ found that Sullivan had
severe impairments of anxiety and affective disorder. (R. 19). Consistent with Dr.
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Estock’s RFC assessment, the ALJ then found at Step Three that Sullivan has
moderate restrictions in social functioning and in maintaining concentration,
persistence, or pace.6 (R. 25). Sullivan argues that the ALJ’s hypothetical
questions to the vocational expert failed to account for all of the limitations
identified by Dr. Estock in both of these areas.
With respect to social functioning, the ALJ’s hypothetical questions to the
vocational expert included the limitation of “casual, non-intensive interaction with
coworkers or the general public,” a limitation identified by Dr. Estock. (Compare
R. 47 with R. 68). However, as Sullivan notes in his brief, the ALJ’s hypothetical
questions did not include Dr. Estock’s assessment that he is “moderately limited”
in his ability to “accept instructions and respond appropriately to criticism from
supervisors” and did not include Dr. Estock’s express limitation that
“[s]upervision and criticism should be given in a manner that is supportive and
nonthreatening.”7 (R. 68). In other words, the ALJ’s hypothetical questions only
partially addressed Sullivan’s social functioning limitations. The questions she
posed to the vocational expert accounted for Sullivan’s limitations in interacting

6

The ALJ also found that Sullivan has moderate restrictions in his activities of daily
living. (R. 25).
7

In her written decision, the ALJ expressly noted Dr. Estock’s determination that
supervision and criticism should be given to Sullivan in a manner that is supportive and
nonthreatening. (R. 24).
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with coworkers and the general public, but did not account for his limitations in
responding to criticism and supervision. Therefore, the vocational expert’s
testimony does not constitute substantial evidence and is insufficient to support
the ALJ’s determination that Sullivan can perform the jobs identified by the
vocational expert. See Winschel, 631 F.3d at 1181 (“Because the ALJ asked the
vocational expert a hypothetical question that failed to include or otherwise
implicitly account for all of Winschel’s impairments, the vocational expert’s
testimony is not ‘substantial evidence’ and cannot support the ALJ’s conclusion
that Winschel could perform significant numbers of jobs in the national
economy.”); Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985) (“[W]e
cannot assume that the vocational expert would have answered [the ALJ’s
hypothetical question] in a similar manner had the ALJ instructed him to consider
all of the appellant’s severe impairments. Thus, we must conclude that the
Secretary failed to meet its burden of showing that the appellant could perform
other gainful employment in the economy.”).
A case from the Southern District of Alabama is instructive. In Salter v.
Colvin, 2014 WL 1315645 (S.D. Ala. Mar. 31, 2014), a consulting doctor (Dr.
Eno) opined that the claimant had moderate limitations in concentration,
persistence, and pace and could “understand, remember, and carry out very short
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simple instructions and attend for two hour periods.” Id. at **5, 8. The ALJ gave
“significant weight” to Dr. Eno’s opinion, noting that it was “the most consistent
with the medical evidence.” Id. at *6. At the administrative hearing, the ALJ
asked the vocational expert hypothetical questions that included the limitation of
“no complex or detailed job instructions,” but did not include any limitation
regarding the claimant’s ability to concentrate for two-hour periods. Id. at *10.
The court held that the ALJ’s hypothetical questions did not fully account for the
claimant’s moderate limitations in concentration, persistence, and pace, finding
that the ALJ “should have included in the hypothetical question[s] posed to the VE
... [the] more ‘directed’ moderate limitation (i.e., the ability to concentrate or
attend for 2-hour periods) in concentration, persistence and pace ....” Id. The
court thus concluded that the vocational expert’s testimony was not “substantial
evidence” and could not support the ALJ’s conclusion that the claimant could
perform the jobs identified by the vocational expert, warranting a remand. Id. at
*11.
Here, similarly, the ALJ placed significant weight on the opinion of Dr.
Estock, who determined that Sullivan had moderate limitations in his ability to
interact with coworkers and the general public and in his ability to accept
instructions and respond appropriately to criticism from his supervisors. The
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ALJ’s hypothetical questions to the vocational expert included the first limitation
assessed by Dr. Estock (“casual, non-intensive interaction with coworkers or the
general public”) but did not include the second (“[s]upervision and criticism
should be given in a manner that is supportive and nonthreatening”). Because the
ALJ’s hypothetical questions did not explicitly or implicitly account for Sullivan’s
limitation in responding appropriately to supervision and criticism, the vocational
expert’s testimony is not substantial evidence and the case is due to be remanded.
The Commissioner argues that “Dr. Estock, as a State agency nonexamining consultant, was not a treating physician, and he would not be due the
same special consideration that a treating physician would be due.” (Doc. 11 at 8).
This argument overlooks the obvious: regardless of whether Dr. Estock was due
the same consideration as a treating physician, the ALJ determined that his
opinion was consistent with the evidence of record and gave the opinion
“significant weight.” (R. 29). And nowhere in the ALJ’s decision did she state
that she was rejecting any portion of Dr. Estock’s opinion.
The Commissioner also argues that “the ALJ’s limitation to casual and nonintensive interaction with coworkers and the general public accommodated Dr.
Estock’s opinion that ‘[Sullivan] can tolerate casual, non-intensive interaction
with coworkers but may at times display anger or anxiety under stress.’” (Doc. 11
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at 9). The court agrees. However, as discussed above, that limitation does not
accommodate Dr. Estock’s additional assessment that Sullivan is moderately
limited in his ability to accept instructions and respond appropriately to criticism
from supervisors and that supervision and criticism should be given in a
supportive and nonthreatening manner. (R. 68). Again, the ALJ’s questions only
partially–and inadequately–accounted for Sullivan’s limitations in social
functioning.
With respect to Sullivan’s moderate restrictions in maintaining
concentration, persistence, or pace, the ALJ asked the vocational expert to assume
that the hypothetical individual could “carry out complex tasks if broken out into
smaller, simpler sections to be completed,” which tracked Dr. Estock’s opinion.
(Compare R. 47 with R. 68). The ALJ did not include the other limitations
assessed by Dr. Estock in this area of functioning, including his assessment that
Sullivan “will benefit from written instructions because of limited ability to
concentrate and remember spoken directions” and that Sullivan “needs a wellspaced work setting” and “may sometimes react to stress with anger or panic.” (R.
68). Sullivan argues that the ALJ’s hypothetical questions were improper because
they did not include these additional limitations.
Although it is a close question, the court is satisfied that the ALJ’s
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hypothetical questions adequately accounted for Sullivan’s moderate restrictions
in maintaining concentration, persistence, and pace. The Eleventh Circuit has
noted that “when medical evidence demonstrates that a claimant can engage in
simple, routine tasks or unskilled work despite limitations in concentration,
persistence, and pace, courts have concluded that limiting the hypothetical to
include only unskilled work sufficiently accounts for such limitations. ...
Additionally, other circuits have held that hypothetical questions adequately
account for a claimant’s limitations in concentration, persistence and pace when
the questions otherwise implicitly account for these limitations.” Winschel, 631
F.2d at 1180 (citations omitted); see Szilvasi v. Soc. Sec. Admin., 555 F. App’x
898, 902 (11th Cir. 2014) (concluding that the ALJ properly accounted for the
claimant’s limitations in concentration, persistence, or pace when it posed
hypothetical questions limiting the claimant to “simple repetitive tasks, with
superficial interactions with others” and the medical evidence demonstrated that
the claimant could perform such work); Rosario v. Comm’r of Soc. Sec., 490 F.
App’x 192, 195 (11th Cir. 2012) (“[T]he ALJ found that the medical evidence
demonstrated Rosario’s ability, despite her limitations, to perform simple, routine,
and repetitive tasks in an environment with only brief interactions with co-workers
and the public. ... The hypothetical the ALJ posed to the vocational expert
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restricted Rosario to the same type of tasks and thereby sufficiently accounted for
Rosario’s limitations in concentration, persistence, and pace.”).
Here, although the ALJ did not expressly limit her hypothetical questions to
include only simple tasks or unskilled work, she implicitly did so by limiting the
hypotheticals to “complex tasks if broken down into simpler, smaller sections to
be completed.” The medical evidence supports Sullivan’s ability to perform such
tasks, as Dr. Estock expressly opined that he could do so. In addition, the
vocational expert apparently understood the hypotheticals to encompass only
unskilled work, because the jobs she identified were all unskilled. (R. 48-49).
Accordingly, the ALJ’s hypothetical questions adequately accounted for
Sullivan’s restrictions in maintaining concentration, persistence, and pace.
Citing Dr. Estock’s opinion, Sullivan argues in his brief that the ALJ’s
“failure to include the restrictions of limitations on concentration and spoken
instructions which required written instructions was improper.” (Doc. 10 at 15).
Dr. Estock, however, did not require that Sullivan be given only written
instructions; he merely stated that Sullivan would “benefit from” written
instructions. (R. 68). Nowhere in his report did he state that Sullivan’s limitations
precluded spoken instructions and required that all of his instructions be in
writing.
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Sullivan also argues that the ALJ’s hypotheticals were inadequate because
they did not incorporate Dr. Estock’s opinion that he needs a “well-spaced work
setting” and “may sometimes react to stress with anger or panic.” Sullivan
acknowledges that the ALJ included a restriction of “casual or non-intensive
interaction with co-workers,” but argues that this restriction does not
accommodate his need for a well-spaced work setting. (Doc. 10 at 15). The court
disagrees. The court is satisfied that restricting the hypotheticals to “casual or
non-intensive interaction with co-workers” adequately accounted for Dr. Estock’s
assessment that Sullivan needs a well-spaced work setting and sufficiently
addressed his stress-related behavior.
In sum, the court concludes that the ALJ’s hypothetical questions did not
fully account for Sullivan’s moderate restrictions in social functioning,
specifically his limitation in responding appropriately to supervision and criticism,
which could impact the vocational expert’s testimony regarding the availability of
jobs Sullivan is capable of performing. Accordingly, the case is due to be
remanded for submission of a more complete hypothetical question to the
vocational expert that fully accounts for Sullivan’s restrictions in social
functioning. The court also concludes that the ALJ’s hypothetical questions
adequately accounted for Sullivan’s moderate restrictions in maintaining
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concentration, persistence, and pace. Nonetheless, because the case is otherwise
due to be remanded, on remand the ALJ may want to consider whether the
hypothetical question to the vocational expert should include any further
restrictions related to Sullivan’s limitations in this area of functioning, such as that
he would benefit from written instructions.
B.

The ALJ’s Alleged Bias
Sullivan also alleges that the ALJ was biased against him. The court notes

that Sullivan raised an allegation of bias when he requested review of the ALJ’s
decision by the Appeals Council. In his request for review, he alleged that “the
opinion of the ALJ is based on possibilities not evidence and illustrates a bias
against claimants and this claimant.” (R. 12). Sullivan makes the same allegation
here, along with other allegations of bias by the ALJ.
Social Security Ruling 13-1p, 2013 WL 633939 (Jan. 29, 2013), discusses
the Social Security Administration’s procedures for addressing complaints of
“unfairness, prejudice, partiality, bias, misconduct, or discrimination” by
administrative law judges. In pertinent part, SSR 13-1p states:
If, in conjunction with request for review, the Appeals Council
receives an allegation of ALJ unfairness, prejudice, partiality, or bias,
the Appeals Council will review the claimant’s allegations and
hearing decision under the abuse of discretion standard. ...
...
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In considering allegations of unfairness, prejudice, partiality, or bias
by the ALJ, the Appeals Council reviews information in the
claimant’s administrative record to determine whether to consider the
alleged actions an abuse of discretion. The Appeals Council relies
solely on information in the administrative record in determining this
issue. ...
After reviewing the administrative record to evaluate the allegations
of unfairness, prejudice, partiality, or bias by the ALJ under the abuse
of discretion standard, the Appeals Council will send the claimant a
notice, order, or decision explaining that it has considered the
allegation under the abuse of discretion standard and stating whether
it found an abuse of discretion. ...
SSR 13-1p, 2013 WL 633939 at **3-4.
Here, the Appeals Council did not follow the procedures in SSR 13-1p for
reviewing allegations of ALJ bias. Indeed, it does not appear that the Appeals
Council reviewed Sullivan’s allegation of bias at all, much less that it reviewed the
allegation under an abuse of discretion standard. The Appeals Council’s decision
denying Sullivan’s request for review of the ALJ’s decision does not mention
Sullivan’s allegation of bias, and there is no separate “notice, order, or decision”
in the record explaining that the Appeals Council considered the allegation under
the abuse of discretion standard and stating whether it found an abuse of
discretion. The Appeals Council either ignored or overlooked the allegation of
ALJ bias.
Accordingly, because the Appeals Council did not review Sullivan’s
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allegation of ALJ bias, and because this case is otherwise due to be remanded, the
court will not address the allegation here. On remand, the Appeals Council should
review the allegation of bias under the abuse of discretion standard and state
whether it finds an abuse of discretion.
VI. CONCLUSION
For the reasons set forth above, the undersigned concludes that the
Commissioner’s decision is due to be reversed and remanded for further
proceedings consistent with this opinion. An appropriate order will be entered
separately.
DONE, this the 18th day of December, 2015.
______________________________
JOHN E. OTT
Chief United States Magistrate Judge

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