Williams v. Astrue

Filing 31

ORDER on Remand. re: 29 Plaintiff's Motion to Assign the Case Upon Remand to an ALJ Who Did Not Previously Hear the Case. The ALJ's determination that Plaintiff is not disabled is reversed and matter is remanded for further proceedings. Court recommends that the Commissioner assign this matter to a new ALJ on remand, by Judge William J. Martinez on 5/24/11.(gmssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 09-cv-02101-WJM
LANNIE WILLIAMS,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.

ORDER ON REMAND

This matter is before the Court on Plaintiff’s Motion to Assign the Case Upon
Remand to an ALJ Who Did Not Previously Hear the Case, ECF No. 29, filed May 20,
2011. For the following reasons, the Court recommends that this matter be reviewed by
a new Administrative Law Judge (“ALJ”) on remand.
BACKGROUND
On May 4, 2011, the Court heard oral argument in this case regarding Plaintiff’s
appeal of a denied application for a period of disability, social security disability benefits,
and supplemental security income. (ECF No. 25.) Following oral argument, the Court
reversed the ALJ’s decision to deny benefits to Plaintiff and remanded the matter to the
ALJ for further proceedings. (Id.) Citing potential bias, Plaintiff then requested that the
matter be reassigned to a new ALJ on remand. (Id. at 2; ECF No. 29.) This issue is
now before the Court.

DISCUSSION
Agency procedures provide that a remanded case will be assigned “to the ALJ
who issued the hearing decision unless . . . (t)he court or Appeals Council directed that
the case be assigned to a different ALJ. . . .” HALLEX 1-2-8-18 (B)(4), 1993 WL
643058 (June 16, 2006). “To whom a case should be remanded is generally within the
province of the [Commissioner’s] responsibility.” Travis v. Sullivan, 985 F.2d 919, 924
(7th Cir. 1993). “Selecting a new ALJ is a decision for the [Commissioner] to make
when there has been no proof of bias or partiality by the original ALJ of the case.” Id.
“The right to an unbiased ALJ is particularly important because of the active role played
by ALJs in social security cases.” Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995).
Where the ALJ’s treatment of a claimant is “unacceptable and violated claimant’s right
to a full and fair hearing,” id., “then the transfer of the case to a different administrative
law judge is an automatic consequence of reversal.” Sarchet v. Chater, 78 F.3d 305,
309 (7th Cir. 1996). However, where the tone of the ALJ’s decision suggests bias but it
is not overt, reversal to a new ALJ is not automatic. Id..
Here, in ALJ William Musseman’s February 27, 2007 decision, the ALJ
contrasted testimony from a hearing before him with evidence on the record and
determined that “the claimant’s statements concerning the intensity, persistence and
limiting effects of [Plaintiff’s ailments] are not credible.” (Admin. Record “R” at 21.)
Plaintiff’s medical record is replete with diagnoses of irritable bowel syndrome (“IBS”),
chronic back pain, shortness of breath, poor physical stamina, anxiety disorder, among
others. (R. at 402, 159-60, 162.) Yet the ALJ concluded Plaintiff’s “testimony is
inconsistent with the treatment record.” (Id. at 22.) Plaintiff argues that the ALJ’s initial
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determination that Plaintiff’s testimony is not credible shows bias and should therefore
cause the Court to remand the matter to a new ALJ. (Pl.’s Mot. at 3.)
The Court agrees that the tone of the ALJ’s opinion suggests he may have
formed an opinion of Plaintiff that will prevail on remand. Further, the Court notes ALJ
Musseman has only a 16.7 percent favorable/partially favorable approval rate of cases
after remand.1 (Id. at 7 n.7.) Based on the record before it, the Court finds there is
insufficient evidence to establish sufficient overt bias on the part of ALJ Musseman to
require an automatic remand to a different ALJ. The Court does find, however, that the
record contains evidence that ALJ Musseman may harbor some bias against Plaintiff,
such that the likelihood Plaintiff will receive a fair and impartial hearing on remand may
reasonably be called into question. The Court therefore recommends that on remand
the Commissioner assign this case to a different ALJ. Sarchet, 78 F.3d at 309 (“If there
is sufficient evidence of bias to entitle the claimant to review by a different administrative
law judge, . . . then the transfer of the case to a different administrative law judge is an
automatic consequence of reversal. But we do not think that that point was reached
here, and we therefore do not order, but merely recommend, that the case be
transferred.”)
CONCLUSION
Based on the foregoing, the Court Orders as follows:
1)

The ALJ’s determination that Plaintiff is not disabled is REVERSED, and
this matter is REMANDED for further proceedings consistent with the

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The Court is relying on the accuracy of the information provided to it by Plaintiff.

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Court’s May 4, 2011 oral ruling; and
2)

The Court recommends that the Commissioner assign this matter to a new
ALJ on remand.

Dated this 24th day of May, 2011.
BY THE COURT:

William J. Martínez
United States District Judge

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