Carter v. Astrue

Filing 16

OPINION AND ORDER that the Court OVERRULES 14 Plaintiff's objections, adopts Report and Recommendations re 13 Report and Recommendations; denies 8 Plaintiff's Motion for Summary Judgment; grants 10 Defendant's Motion for Summary Judgment. Signed by District Judge Henry C. Morgan, Jr and filed on 3/19/2013. (rsim, )

FILED

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Norfolk Division

MAR 1 9 2013

BRENDA CARTER,
CLERK. U.S. DISTRICT COURT
NORFOLK. VA

Plaintiff,

v.

Civil Action No.: 2:llcv665

MICHAEL J. ASTRUE

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

OPINION AND ORDER

This matter comes before the Court on Plaintiff Brenda Carter's ("Plaintiff' or "Carter")

Objections to the Report and Recommendation of the Magistrate Judge. Doc. 14. For the

reasons explained below, the Court OVERRULES Carter's objections and ADOPTS the
Magistrate Judge's Report & Recommendation ("R&R"). Doc. 13.
I.

BACKGROUND

Plaintiff does not object to the recitation of the procedural background of this case

contained in the R&R, which sets forth, inter alia, the following facts.
A.

Procedural History

Plaintiff filed an application for disability insurance benefits ("DIB") with the Social

Security Administration ("SSA") on May 14,2008, alleging a disability onset date of July 31,

2006. R&R at 1. The application alleged that Plaintiff suffered from chronic lower back pain
and a recurrence of petit mal seizures associated with epilepsy. Id at 2. Plaintiffs application

was denied initially, as well as upon reconsideration.' R&R at 1. Carter then requested an
1Carter's initial application was denied onAugust 8, 2008. Certified Administrative Record ("R") at25-27.
Carter's request for reconsideration was filed on October 22,2008 and denied on March 11,2009. Id at 29-31.
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administrative hearing, which was conducted via video conference on May 19, 2010. Id at 1;
see also R. at 13. Following the hearing, Administrative Law Judge ("ALJ") Barbara Powell
concluded that Carterwas not disabled within the meaning of the Social Security Act, and denied

Plaintiffs claim for disability benefits. R. at 10-22. The Appeals Council denied review of the

ALJ's decision on the merits.2 R. at 5-8. On December 19, 2011, pursuant to 42 U.S.C. §
405(g), Plaintiff filed the instant action, seeking judicial review ofthe Commissioner's final
decision. The parties filed cross motions for summary judgment, which were addressed by the
R&R, filed on October 16, 2012. Doc. 13. Plaintiff filed its Objections to the R&R on October

25, 2012. Doc. 14. Defendant filed its Response on November 6, 2012. Doc. 15. This case is
now before the Court for disposition of the R& R.
B. Factual Background

Plaintiff objects to the recitation of the factual background set forth in the R&R;

consequently, the Court has reviewed the Certified Administrative Record and summarized the
relevant facts below.3
Plaintiff Carter is a middle-aged woman that was employed as a patient escort from 2004
until 2006. R. at 60,100, 307, 84. This position involved transporting patients on stretchers or

in wheelchairs, as well as assisting patients to and from their beds. R. at 85. In July 2006, an

850-pound patient fell on Carter and injured her. R. at 307-08. Since the accident, Carter alleges
that she suffers from chronic lower back pain and a reoccurrence of petit mal seizures. R. at 309.

She subsequently submitted an application to the SSA seeking disability benefits for these
injuries, but was denied initially and upon reconsideration. R&R at 1. Carter then requested an
administrative hearing, which was held on May 19, 2010. R. at 13.

2This meant thatthe Commissioner adopted the ALJ's decision as its final decision.
3Plaintiffs specific factual objections are briefly addressed in the analysis portion of thisOrder.

i. The Administrative Hearing

Plaintiffs objections to the R&R rely on comments made by the ALJ during the May 19,

2010hearing that were related to previous postponements of Carter's hearing date. The hearing
was initially scheduled for October 28,2009 in Newcastle, Delaware, but was rescheduled
because the hearing was mistakenly scheduled at the incorrect location. R. at 40,299. The
second hearing, set for November 25,2009, was cancelled because the ALJ was unavailable. Id

The hearing was rescheduled a thirdtime for February 8,2010, but was postponed because of
inclement weather. Id The ALJ's comments at the May 19,2010 hearing, however, suggest

that she was unaware of this history and that she attributed the delays to Carter and her counsel.
R. at 316-18.

Halfway throughthe hearing, while examining Carter, the ALJ brought up the delays in
Carter's case. R. at 316. In a comment unrelated to the subject of her inquiry, the ALJ noted the

several delays and referredto Carter as "something of a record-setter." R. at 317. The ALJ then

inquired about the cause of the postponements, to which Carter responded that she had no idea,
but alluded to the weather as a cause. Id The ALJ replied,"[n]ow don't tell me you don't have

any idea," and "[t]he weather? Oh, Ms. Carter." Id The ALJ continued, noting the expense and
time associated with re-scheduling a hearing. Id

At this point, Carter's counsel attempted to interject, but the ALJ responded that she was
typing and would get back with him. Id Carter then attempted to speak, but the ALJ cut her off
and stated, "[n]ow, now please - now whoa, whoa, Ms. Carter." Id The ALJ continued, "I'm

being very generous in, in letting you talk, but usually I ask the question and you're ~ please, if

you've ever been to court before, give me the same courtesy you would give to a federal judge ..
. and wait to ask if you can speak." R. at 318. The ALJ then went on a brieftangent, noting that

there are more than 750,000 people waiting for hearings, and that she is under a lot of pressure
from administrators to hear and decide these cases quickly. Id To this point, the ALJ declared,

"I get nasty notices from the administrators about: why are you holding that case up? And then I
getto write a novel on why I'm not holding the case up." Id
The hearing then proceeded normally with Carter's counsel examining Carter. R. at 31922. The Vocational Expert testified next, and the ALJ presented her with three hypotheticals. R.
at 323-26. Carter's counsel also examined the Vocational Expert and presented a hypothetical

that appeared to be the same asthe ALJ'sthird hypothetical. R. at325-26, 329-30. When the
ALJ brought this to counsel's attention, he stated that he was trying to emphasize the RFC
limitations found by Dr. King, a treating physician. R. at 330. He also acknowledged that the

ALJ's last hypothetical hadalso encompassed Dr. King's findings. Id
The ALJ then observed, ifthere was nothing further, she would close the hearing because

she was already behind schedule. Id In concluding, the ALJ stated that she found the hearing to

be meaningful and "really appreciate^] everybody's cooperation and candor in the hearing." Id
She then informed Plaintiffthat at this point she planned to go through Plaintiffs file for a final
review. Id She disclosed, "I do not know how I'm going to decide the case," but promised that

she would be review the file very closely. R. at 330-31. The ALJ thanked Carter for coming in,

stating it hadbeen a pleasure to meet her. R. at 331. Then, after she thanked counsel for doing
an excellent job, counsel attempted to readdress the ALJ's apparent misunderstanding concerning

the delay issue. Id The ALJ replied, "I don't see what that could possibly have to do with the
determination of the case." Id She again reiterated that she is under pressure to hear cases

quickly. Id

Carter's counsel again attempted to speak, at whichpoint the ALJ cut him off and
instructed him on the concerns of rescheduling hearings due to the costs and number of

applicants waiting. R. at 331 -32. As a part of this discourse, the ALJ made a seemingly
unrelated reference that a representative does the client no favor by asking for a continuance. R.

at 332-33. She went on, apparently referring to another matterentirely, "she was really out of
line to have asked for such a thing, and she did not get a postponement. The way I was brought

up, the law school I wentto, a court hearing date, you knowthat's prettycritical. As you feel the
same way." R. at 333. After a brief acknowledgment by counsel that he felt the same, the ALJ
noted she had been hearing cases all day and needed to move on to the next hearing. Id
The next day, Carter's counsel wrote a letter to the ALJ objecting to the conduct of the

hearing. R. at 138-39. There is no evidence that the ALJ responded to the letter, and she issued
her decision approximately three weeks later on June 25, 2010. R. at 10-22. Carterappealed the
ALJ's decision to the Appeals Council, contending that the conduct of the hearing denied her due

process. R. at 296-302. The Appeals Council referred someof Carter's allegations for a separate
review, but affirmed the ALJ's decision on the merits. R. at 6.
II.

STANDARD OF REVIEW

Pursuant to the Federal Rules of Civil Procedure, the Court reviews de novo any part of a

Magistrate Judge's recommendation to which a party has properly objected. Fed. R. Civ. P.

72(b)(3). The Court may then "accept, reject, or modifythe recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions." Id

In exercising de novo review, the Court analyzes the Commissioner's final decision using
the same standard as that used by the Magistrate Judge. Specifically, the Court's review of the
Commissioner's decision is limited to determining whether that decision was supported by

substantial evidence on the record, and whether the proper legal standard was applied in

evaluating the evidence. 42 U.S.C. § 405(g); Johnson v. Barnhart 434 F.3d 650, 653 (4th Cir.

2005) (per curiam). Substantial evidence is defined as "suchrelevant evidence as a reasonable
mind might acceptto support a conclusion." Id. (quoting Craig v. Chater. 76 F.3d 585, 589 (4th
Cir. 1996))(internal quotation mark omitted). Courts have further explained that substantial
evidence is less than a preponderance of evidence, but more than a mere scintilla of evidence.
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). Importantly, in reviewing the ALJ's

decision the Court does not "reweigh conflicting evidence, make credibility determinations, or
substitute [its] judgment for that of the [ALJ]." Id (quoting Craig. 76 F.3d at 589) (internal

quotation mark omitted) (final alteration in original). Thus, if the Court finds that there was
substantial evidence to support the ALJ's factual findings, even if there was also evidence to
support contrary findings, the ALJ's factual findings must be upheld.
III.

ANALYSIS

Carter disagrees with the ALJ's conclusion that she is not eligible for Social Security
Disability Benefits, because Carter has the residual functional capacity ("RFC") to perform
medium work (albeit not her past relevant work) with specified limitations to avoid dangerous

height and machinery, ladders, ropes, scaffolds, concentrated exposure to heat, humidity
changes, gases, fumes, and vibrations. R&R at 16; see also R. at 15-21. In her motion for

summary judgment, Carter argues primarily that the hearing before the ALJ violated her due
process rights, as the ALJ's bias deprived her of a full and fair hearing. Carter also argues that
the ALJ erred in determining her RFC by: (1) failing to give proper weight to the opinion of one
of Carter's treating physicians, Dr. King; and (2) not supporting with substantial evidence the

ALJ's finding that Carter's testimony was"not credible." Doc. 9 at 16-18; Doc. 12 at 10-12;
R&R at 17.

In the R&R, the Magistrate Judge rejects Carter's arguments andrecommends thatthe
ALJ's decision be affirmed, first, because Carter failed to establish that the ALJ's conduct at the

hearing, while intemperate, evidenced any impartiality orbias against Carter. Second, the
Magistrate Judge found that the ALJ's conclusions as to the weight of Dr. King's opinion were

supported by substantial evidence, and thus, must be upheld. R&R at 20. Finally, the Magistrate
upheld the ALJ's evaluation of Carter's credibility, after finding thatthe ALJ had performed the
required analysis, and had articulated numerousreasons for not fully crediting Carter's
statements. R&R at 23.

In her objectionsto the R&R, Carter requests that the R&R not be adopted, and that the
Commissioner's denial be reversed or remanded for the following reasons: (1) because the

Magistrate Judge's findings regarding the conduct of Carter's hearing by the ALJ are not fairly

supported by the factual record; and (2) becausethe ALJ's conduct in Carter's hearing violated
Carter's right to due process. Doc. 14 at 1, 7.
A.

The Magistrate Judge's Factual Recitation ofthe ALJ's Conduct ofthe Hearing is Consistent
with the Record

As noted above, Plaintiff takes issue with the Magistrate Judge's characterization of the

facts surrounding the conduct of the administrative hearing. Doc. 14 at 1. Specifically, Plaintiff
objects to: (1) the description of the ALJ's comments regarding delay as "excerpts" of the
hearing; (2) the Magistrate Judge's statement that the ALJ may have misunderstood the cause of
the delays; and (3) the description of the ALJ's statements to Carter regarding the delay as

"casual." Id at 1-6. In general, Plaintiff believes the Magistrate Judge understates the
significance of Carter's interaction with the ALJ regarding the postponed hearings, which

Plaintiff alleges caused the Magistrate to misunderstand the extentto whichthe interaction
compromised the ALJ's ability to be impartial.
First, Plaintiff contends that the ALJ's comments regarding postponed hearings and delay

were not excerpts, as they constituted twenty (20) percent ofthe hearing record.4 Id at 1-2.
Plaintiffasserts thatthis percentage suggests that the delay became a focus of the hearing. Id at
2. However, Plaintiffs argument is not supported by the Record. Review of the Record reveals
that the ALJ's focus on Carter's delayed hearings is limited to four pages of the transcript,

approximately thirteen (13) percent of the record. See R. at 316-18, 331-32. Indeed, the ALJ's
last statements about delayed hearings were made in response to Plaintiffs counsel, who

attempted to return the ALJ's focus to the issue. Moreover, these statementsappear to be
complaints aboutanother case entirely. R. at 332-33. In fact, the majority of the hearing was

spent developing the record regarding Carter's disability. See R. 305-16, 319-30, 332-34.
Finally, the Record indicates that the hearing was significantly longer than thosetypically held
by the ALJ. R. at 330 ("I normally hear cases in 40 minutes. Somehow a numberof people got
an hour and a half out of me."). Thus, this Court finds that the Magistrate Judge accurately
characterized the discussion of delay as excerpts of the record.
Plaintiffs second and third arguments fail for the same reason — because Plaintiffs

objections are about semantics, rather than content. Plaintiff argues that rather than merely
misunderstanding the cause of delays, the ALJ was "operating under a totally erroneous and
incorrect understanding as to why the claimant's hearing had been postponed." Doc. 14 at 2.
Plaintiff also contends that the R&R's description of as the ALJ's comments as "casual" is

incorrect, because the ALJ's behavior suggested that the ALJ viewed the postponements as
4Plaintiffarrives at thisnumber by counting eachpage of the hearing transcript where anymention of delaying a
hearing is made. By Plaintiffs count, six (6) pages of a thirty-one (31) page transcript contain a tangential
discussion about delayed hearings. Doc. 14 at 1-2.
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"quite a serious matter." Id. at3. Here, Plaintiffs arguments are focused on word choice rather
than content. While the R&R may use language that in Plaintiffs view diminishes the import of
the ALJ's comments, the R&R accurately relays the ALJ's comments regarding delays of
Plaintiffs SSI hearing. R&R at 3-4. To allay Plaintiffs concerns, however, this Court has

reviewed the transcript of the proceeding, and has crafted a summary of the factual
circumstances surrounding the hearing. See supra part IB.
Because Plaintiffs objections to the factual background of the R&R lack merit, we move
to Plaintiffs substantive claim.

B.

The ALJ's Conduct ofthe Hearing Did Not Violate Carter's Due Process Rights

The right to procedural due process applies to administrative hearings as it does in
judicial proceedings. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Gibson v. Berrvhill.
411 U.S. 564, 572 (1973). "[A] 'fair trial in a fair tribunal is a basic requirement of due

process.'" Withrow v. Larkin. 421 U.S. 35,46 (1975) (quoting In re Murchison. 349 U.S. 133,
136 (1955)). "An impartial decision maker is an essential element of due process." Bowens v.
N.C. Dent, of Human Res.. 710 F.2d 1015,1020 (4th Cir. 1983) (quoting Goldberg v. Kellv. 397
U.S. 254,271 (1970)).

Judicial review of a claim of bias is appropriate in a Section 405(g) proceeding. Ventura
v. Shalala. 55 F.3d 900, 901 (3d Cir. 1995). Indeed, because the ALJ plays a particularlyactive

role in social security cases, the need for impartiality is particularly important; "ALJs have a duty
to develop a full and fair record in social security cases." Id at 902. "An administrative law

judge shall not conduct a hearing if he or she is prejudiced or partial with respect to any party or
has any interest in the matter pending for decision." 20 C.F.R. § 404.940.

Because administrative decisionmakers are entitled to the same "presumption of honesty
and integrity" as judicial decisionmakers, however, an ALJ will not be disqualified for bias

"absent a showing of bias stemming from an extrajudicial source." Morris v. City of Danville.
Va.. 744 F.2d 1041,1044-45 (4th Cir. 1984) (quoting Withrow. 421 U.S. at 47); see also
Bowens. 710 F.2d at 20 ("To be disqualifying, personal bias must stem from a source otherthan

knowledge a decision maker acquires from participating in a case."). Moreover, "actual bias or a

high probability of bias must be present before due process concerns are raised[.]" Simpson v.
Macon County. N.C.. 132 F. Supp. 2d 407,411 (W.D.N.C. 2001) (quoting Marshall v. Cuomo.
192 F.3d 473,484 (4th Cir.1999)). The plaintiff bears the "heavy burden" of proving bias or a
high risk of bias. Simpson. 132 F. Supp. 2d at 411.

Here, Plaintiff argues that the ALJ's bias towards Plaintiff and Plaintiffs Counsel was
verbalized on the record, during the ALJ's comments about delayed and postponed social

security hearings. To make this argument, Plaintiff relies upon the R&R's description of the
ALJ's comments during the hearing as "intemperate," "rude," "impolite," and "unwarranted,"
and contrasts these comments to Third Circuit authority stating:

[applicants for social security disability payments, most of whom
are truly ill or disabled, are entitled to be treated with respect and
dignity no matter what the merits of their respective claims. . . .
Notwithstanding and recognizing the time pressures imposed upon
those hearing the huge volume of such claims, rudeness,
impatience, or outright bias cannot be tolerated.
Ventura. 55 F.3d at 901. In Plaintiffs view, the ALJ's comments in this case are analogous to
the circumstances in Ventura, supporting Plaintiffs argument for relief.

However, Plaintiffs cited authority is distinguishable from Plaintiffs particular
circumstances. In Ventura, the Third Circuit described the ALJ's conduct during a social
security hearing as "coercive and intimidating," and "disinterested." Id at 903. There, the ALJ

hastily concluded that the plaintiff's back pain was caused by a mental impairment. Id When
the plaintiffs representative attempted to redirect the ALJ's attention to evidence concerning the
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physical causes of the plaintiffs pain, the ALJ threatened to throw out the witness, and

reprimanded the representative when he attempted to questionthe medical expert. Id. at 903-904
(quoting the ALJ as making statements such as "[wjhat's the matterwith you," "you're not doing
one damn thing to help him," and "wake up and smell the roses on this case."). The ALJ

repeatedly indicated that she believed the plaintiffs reports of pain were emotional or

psychological, and refused to hear evidence to the contrary. See Id at 904 ("[h]is problem lies in
the emotional area..."). The court held that the ALJ's "continuous interference with the
representative's introduction of evidence of the physical causes of plaintiffs back pain violated

the ALJ's duty to develop the record fully and fairly" and remanded the case for review by
another ALJ. Id at 904-05.

In the instant action, by contrast, the ALJ's line of questioning regarding the delay
comprised a small portion of the hearing record, four pages by this Court's count. While the
ALJ's comments were indeed rude and intemperate, they did not demonstrate the level of

hostility that was shown the plaintiff in Ventura. If anything, the ALJ's comments were an
inappropriate expression of frustration about trial delays and the pressure she felt to promptly
hear and decide cases. R. at 318. While the ALJ's comments suggest that the ALJ did not

believe Carter's explanation for the delayed hearings, at no point did the ALJ indicate that she
had arrived at a conclusion regarding the credibility of Carter's testimony or any other evidence
presented at the hearing. R. at 317. Rather, at the close of the hearing the ALJ informed
Plaintiff that she intended to conduct a final review of the Plaintiffs file and stated that she did

not know how she was going to decide the case. R. at 330. She also explicitly indicated that the
discussion regarding the delays had nothing to do with the determination of the case. R. at 331.

Finally, unlike the ALJ in Ventura, the ALJ's conduct did not prevent the Plaintiff from getting

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evidence of the cause of Carter's pain on the record; it was only Plaintiffs counsel's efforts to

explain the delay that were thwarted. Ventura. 55 F.3d at 904-05.
Plaintiff also argues that the ALJ's line of questioning regarding the delay revealed that
the ALJ believed Carter was a liar, and thus could not be relied upon to impartially evaluate the

credibility of the evidence presented in the hearing. In support of this argument, Plaintiff relies
on a quote from a Seventh Circuit case, "[m]any people are ... reluctant to undergo arduous
administrative proceedings in which they are called liars ...." Sarchet v. Chater. 78 F.3d 305,
308 (7th Cir. 1996).
Here, as above, Plaintiff relies upon precedent that is factually distinguishable. In

Sarchet. the Seventh Circuit relied upon the ALJ's serious mistakes, omissions, and the clear

sociocultural bias evidenced in the record and the ALJ's opinion. Id at 308. The court also
found that the statement of reasons for denying benefits contained in the ALJ's opinion did not

logically connect with the facts on the record. Id. at 307.
While the statements made by the ALJ in the instant action may have been erroneous,

they were not related to a material issue, an admission made by the ALJ. R. at 331 ("I don't see
what that could possibly have to do with the determination of the case."). Unlike the ALJ in

Sarchet. ALJ Powell's reasons for denying Plaintiffs claim were logically connected to the
evidence. 78 F.3d at 307. For example, ALJ Powell questioned the inconsistency between Dr.

King's 2009 report and prior reports from Dr. King and Carter's other treating physicians. R. at

19-20. Indeed, the ALJ's opinion demonstrates that she sought to understand every nuance of
the relevant facts of the case, and explained her reasons logically and impartially.

In short, Plaintiff has failed to meet the heavy burden of overcoming the presumption of
honesty and integrity afforded to administrative decisionmakers. First, Plaintiff does not alleged

12

that ALJ's alleged bias stems from information gained outside the case orhearing. See Bowens,
710 F.2d at 20. Second, while the ALJ's statements during Plaintiffshearing were impolite and

intemperate, they did not prevent Plaintifffrom fully developing the factual record. Finally,
because the ALJ's stated reasons for denying Plaintiffs claim are logically connected to the

evidence placed on the record and this Court will not "reweigh conflicting evidence, make
credibility determinations, or substitute [its] judgment for that of the [ALJ]," Plaintiff cannot
meet the heavy burden of demonstrating bias. Celebrezze. 368F.2d at 642. Consequently,

Plaintiffs objection thatherdue process rights were violated must fail.
IV. CONCLUSION

For the reasons discussed above, the Court concludes that the ALJ's RFC assessment was

fair and based upon an impartial evaluation of all of the relevant evidence, including the
objective medical records and the State Agency findings. Accordingly, the Court
OVERRULES Plaintiffs objections, Doc. 14,and ADOPTS, in its entirety, the Magistrate

Judge's Report and Recommendation, Doc. 13. The Court DENIES Plaintiffs Motion for

Summary Judgment, GRANTS Defendant's Motion for Summary Judgment, andAFFIRMS the
Recommendation of the Magistrate Judge that the final decision of the Commissioner be upheld.
The Clerk is REQUESTED to send a copy of this order to all counsel of record.
It is so ORDERED.

.

/s/

Henry Coke Morgan, Jr.

Senior United States District Judj
HENRY COKE MORGAN, JR.
SENIOR UNITED STATES DISTRICT JUDGE

Norfolk, Virginia^

Date: March J9 ,2013
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