Cope v. Colvin

Filing 40

ORDER re 1 Complaint, filed by Richard Cope - by Judge J Richard Creatura. The Court ORDERS that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration consistent with this order. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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RICHARD COPE,

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Plaintiff,

CASE NO. 2:15-cv-01744 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

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Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and

18 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
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Magistrate Judge and Consent Form, Dkt. 3; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 4). This matter has been fully briefed (see Dkts. 22, 27, 31, 33, 37,

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38). Defendant also filed a Notice of Supplemental Support for Defendant’s Brief
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pursuant to Local Court Rule 7(n) on October 20, 2016 (see Dkt. 39).
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ORDER ON PLAINTIFF’S COMPLAINT - 1

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After considering and reviewing the record, the Court concludes that the ALJ

2 erred in evaluating the medical evidence. Had the ALJ properly considered the medical
3 evidence, the residual functional capacity (“RFC”) may have included additional
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limitations. Because the ALJ committed harmful errors, this matter is reversed pursuant
to sentence four of 42 U.S.C. § 405(g) and remanded to the Acting Commissioner for

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further consideration consistent with this order.
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However, the Court finds that plaintiff has failed to meet his burden of
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establishing that the ALJ demonstrates a generalized pattern of bias against claimants like
plaintiff. Accordingly, the Court declines to direct the Commissioner to reassign the case

11 upon remand. Nonetheless, nothing in this Opinion prohibits the Commissioner from
12 reassigning the case to a different ALJ upon remand.

BACKGROUND

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Plaintiff, RICHARD COPE, was born in 1955 and was 52 years old on the alleged

15 date of disability onset of October 1, 2008 (see AR. 216-17, 218-23). Plaintiff completed
16 the 11th grade in high school and has not obtained his GED (AR. 18). Plaintiff completed
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a printing course and a home inspection course (id.). Plaintiff has work experience in
construction, in the printing industry, as a home inspector, and forklift operator (AR. 257-

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63).
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According to the ALJ, plaintiff has at least the severe impairments of “chronic
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obstructive pulmonary disease (COPD) and depression (20 CFR 404.1520(c) and
416.920(c))” (AR. 116).

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ORDER ON PLAINTIFF’S COMPLAINT - 2

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At the time of the hearing, plaintiff was living in a shelter where he had been

2 living for 3 to 4 years (AR. 22-23).
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PROCEDURAL HISTORY
Plaintiff’s applications for disability insurance benefits (“DIB”) pursuant to 42
U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42

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U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and
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following reconsideration (see AR. 59-69, 70-80, 83-95, 96-108). Plaintiff’s requested
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hearing was held before Administrative Law Judge Larry Kennedy (“the ALJ”) on
September 12, 2013 (see AR. 4-56). On September 27, 2013, the ALJ issued a written

11 decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social
12 Security Act (see AR. 109-33).
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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) The ALJ’s

14 decision and findings regarding plaintiff’s COPD were not based on substantial evidence,
15 misread the medical evidence, improperly excluded relevant evidence, and denied
16 requested subpoenas; (2) The ALJ improperly rejected the opinions from every one of
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plaintiff’s examining or treating doctors; (3) The ALJ’s findings regarding plaintiff’s
credibility are not specific enough to permit judicial review, and contain numerous

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misstatements of the record; (4) The ALJ improperly failed to consider the fact that
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plaintiff had been determined to be disabled for purposes of DSHS; and (5) The transcript
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shows a pattern of bias or prejudice by this ALJ regarding persons such as plaintiff who
are on DSHS and have a psychological illness (see Dkt. 22, p. 6).

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ORDER ON PLAINTIFF’S COMPLAINT - 3

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STANDARD OF REVIEW

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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s

3 denial of social security benefits if the ALJ’s findings are based on legal error or not
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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.

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1999)).
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DISCUSSION
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(1)

Whether the ALJ properly weighed the medical evidence.

Plaintiff argues that the ALJ erred in his treatment of the medical opinions of Drs.

11 Sanchez, Dolan, Burdge, Basinski, and Chwastiak (Dkt. 22, pp. 9-14).
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The ALJ must provide “clear and convincing” reasons for rejecting the

13 uncontradicted opinion of either a treating or examining physician or psychologist.
14 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citing Embrey v. Bowen, 849 F.2d
15 418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)). But when
16 a treating or examining physician’s opinion is contradicted, that opinion can be rejected
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“for specific and legitimate reasons that are supported by substantial evidence in the
record.” Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th

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Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can
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accomplish this by “setting out a detailed and thorough summary of the facts and
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conflicting clinical evidence, stating his interpretation thereof, and making findings.”
Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881

24 F.2d 747, 751 (9th Cir. 1989)). The ALJ may not reject a brief, conclusory opinion from

ORDER ON PLAINTIFF’S COMPLAINT - 4

1 a treating physician if the opinion is consistent with the claimant’s testimony and with the
2 doctor’s treatment notes. See Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014).
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A. Phyllis Sanchez, Ph.D.

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Dr. Sanchez conducted a Psychological/Psychiatric Evaluation on December 10,
2012 (AR. 2346-52). Dr. Sanchez charted plaintiff’s self-reported symptoms and

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conducted a mental status examination and clinical interview (see id.). During Dr.
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Sanchez’s interview, plaintiff admitted using methamphetamine in his youth (AR. 2346).
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He reported that his depression increased when his wife had a stroke in 2009 (AR. 2346).
As a result of his depression, plaintiff reports waking “up in a cold sweat, dwells on the

11 past, misses his wife, feels depressed for weeks to months at a time, has no energy, no
12 motivation, no hope, and gives up easily” (AR. 2347). Plaintiff reported suicidal ideation
13 “[a]ll the time” but noted he is “not to the point where he has any intent” and “no plans
14 either” (AR. 2347). On mental status examination, Dr. Sanchez observed that plaintiff
15 was depressed and tearful at times (AR. 2349). Plaintiff was not within normal limits on
16 memory, fund of knowledge, and concentration (AR. 2349). On abstract thinking,
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plaintiff “did OK on the proverb, but only got a one point answer on the similarity” (AR.
2349).

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Dr. Sanchez diagnosed plaintiff with Major Depression and opined that plaintiff
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would have moderate difficulties in a number of areas, including: (1) performing
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activities within a schedule, maintaining attendance, and being punctual without special
supervision; (2) performing routine tasks without supervision; (3) adapting to changes in

24 a routine setting; (4) being aware of normal hazards and taking appropriate cautions;

ORDER ON PLAINTIFF’S COMPLAINT - 5

1 (5) asking simple questions and for assistance; (6) communicating and performing
2 effectively in a work setting; (7) maintaining appropriate behavior at work;
3 (8) completing a normal work day or week without interruptions from psychological
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symptoms; and (9) setting realistic goals and plan independently (AR. 2348).
The ALJ noted that Dr. Sanchez “completed a check-box form in December 2012”

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opining that plaintiff has moderate limitations in most functional areas (AR. 126). The
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ALJ also observed that Dr. Sanchez “did not provide a narrative explanation” (id.). The
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ALJ gave Dr. Sanchez’s opinion “some weight” and found that plaintiff’s “reports to her
appear exaggerated” (AR. 126). As an example, the ALJ noted that although plaintiff told

11 Dr. Sanchez he “had suicidal ideation ‘all the time’”, plaintiff “usually denied suicidal
12 ideation with his treatment providers” (AR. 126). The ALJ also found that plaintiff
13 “misrepresented his meth use, telling her the last time he used was in the mid-90s” (AR.
14 126). Finally, the ALJ discounted Dr. Sanchez’s opinion “[t]o the extent she relied on his
15 subjective complaints” (AR. 126).
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First, the ALJ suggests that Dr. Sanchez’s opinion is inadequate or should be
discounted because she used a check-box form (AR. 126). Discrediting a doctor’s opinion
simply because she used a check-box form is not valid unless that opinion is inconsistent

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with the underlying clinical records. See Garrison v. Colvin, 759 F.3d 995, 1014 n.17
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(9th Cir. 2014) (noting that “the ALJ was [not] entitled to reject [medical] opinions on the
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ground that they were reflected in mere check-box forms” where the “check-box forms
did not stand alone” but instead “reflected and were entirely consistent with the hundreds

24 of pages of treatment notes”); see also Neff v. Colvin, 639 F. App’x 459 (9th Cir. 2016)

ORDER ON PLAINTIFF’S COMPLAINT - 6

1 (unpublished); Esparza v. Colvin, 631 F. App’x 460, 462 (9th Cir. 2015) (unpublished).
2 Thus, the ALJ committed legal error to the extent he discounted Dr. Sanchez’s opinion
3 because she used a check-box form, particularly where, as here, Dr. Sanchez’s opinion
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was accompanied by a clinical interview and mental status examination.
Second, the ALJ discounted Dr. Sanchez’s opinion “[t]o the extent she relied upon

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[plaintiff’s] subjective complaints” (AR. 126). According to the Ninth Circuit, “[an] ALJ
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may reject a treating physician’s opinion if it is based ‘to a large extent’ on a claimant’s
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self-reports that have been properly discounted as incredible.” Tommasetti v. Astrue, 533
F.3d 1035, 1041 (9th Cir. 2008) (quoting Morgan v. Comm’r. Soc. Sec. Admin., 169 F.3d

11 595, 602 (9th Cir. 1999) (citing Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989))).
12 However, “when an opinion is not more heavily based on a patient’s self-reports than on
13 clinical observations, there is no evidentiary basis for rejecting the opinion.” Ghanim v.
14 Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (emphasis added) (citing Ryan v. Comm’r of
15 Soc. Sec., 528 F.3d 1194, 1199-1200 (9th Cir. 2008).
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Here, substantial evidence does not support the ALJ’s conclusion that Dr.
Sanchez’s opinion should be discounted because she relied upon plaintiff’s subjective
complaints. The evidence of record shows that Dr. Sanchez conducted a mental status

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examination and clinical interview. The Court notes that “experienced clinicians attend to
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detail and subtlety in behavior, such as the affect accompanying thought or ideas, the
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significance of gesture or mannerism, and the unspoken message of conversation. The
Mental Status Examination allows the organization, completion and communication of

24 these observations.” Paula T. Trzepacz and Robert W. Baker, The Psychiatric Mental

ORDER ON PLAINTIFF’S COMPLAINT - 7

1 Status Examination 3 (Oxford University Press 1993). “Like the physical examination,
2 the Mental Status Examination is termed the objective portion of the patient evaluation.”
3 Id. at 4 (emphasis in original).The Mental Status Examination generally is conducted by
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medical professionals skilled and experienced in psychology and mental health. Although
“anyone can have a conversation with a patient, [] appropriate knowledge, vocabulary

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and skills can elevate the clinician’s ‘conversation’ to a ‘mental status examination.’”
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Trzepacz and Baker, The Psychiatric Mental Status Examination 3. A mental health
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professional is trained to observe patients for signs of their mental health not rendered
obvious by the patient’s subjective reports, in part because the patient’s self-reported

11 history is “biased by their understanding, experiences, intellect and personality” (id. at 4),
12 and, in part, because it is not uncommon for a person suffering from a mental illness to be
13 unaware that her “condition reflects a potentially serious mental illness.” Van Nguyen v.
14 Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (citation omitted). The record demonstrates
15 that Dr. Sanchez did not base her medical assessment more heavily on self-reported
16 symptoms. Rather, Dr. Sanchez provided a medical source statement based on her
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observations, the objective results of mental status examinations, and plaintiff’s selfreported symptoms. Thus, the ALJ’s decision discounting Dr. Sanchez’s assessment to

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the extent it was based upon plaintiff’s subjective complaints is not supported by the
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record as a whole given that Dr. Sanchez conducted objective testing.
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Third, the ALJ discounted Dr. Sanchez’s opinion because he found that plaintiff
“exaggerated” his reports to her (AR. 126). As an initial matter, the ALJ does not provide

24 citations to the record and instead only notes that plaintiff usually reported no suicidal

ORDER ON PLAINTIFF’S COMPLAINT - 8

1 ideation to treatment providers (AR. 126). The ALJ’s lack of citation to the record lacks
2 the level of specificity required by the Court. See Embrey, 849 F.2d at 421-22; McAllister
3 v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (the ALJ’s rejection of a physician’s
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opinion on the ground that it was contrary to clinical findings in the record was “broad
and vague, failing to specify why the ALJ felt the treating physician’s opinion was

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flawed”).
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Regardless, the ALJ’s determination is not supported by substantial evidence.
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Defendant cites to a number of treatment records wherein plaintiff reported no suicidal
ideation to support the ALJ’s determination that plaintiff exaggerated (see Dkt. 27, p. 7

11 citing AR. 2110, 2118, 2376, 2382, 2385, 2404, 2408, 2417). However, the ALJ did not
12 cite to these treatment notes (see AR. 126). Moreover, the ALJ does not explain how
13 plaintiff’s reports of suicidal ideation or lack thereof at other medical appointments
14 undermines the fact that plaintiff was experiencing suicidal ideation during his
15 appointment with Dr. Sanchez. Indeed, plaintiff had a prior suicide attempt and reported
16 experiencing suicidal ideation at other appointments (see, e.g., AR. 2258 (noting that
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plaintiff previously attempted suicide and plaintiff “thinks about suicide a lot now”)).
Fourth, the ALJ discounted Dr. Sanchez’s opinion because he determined that

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plaintiff misrepresented his prior methamphetamine use (AR. 126). As an initial matter,
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the Court finds that to the extent the ALJ relied upon any of plaintiff’s self-reports to Dr.
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Sanchez to discount her opinion—including self-reports the ALJ determined were
misrepresentations—the ALJ erred. As noted above, “when an opinion is not more

24 heavily based on a patient’s self-reports than on clinical observations, there is no

ORDER ON PLAINTIFF’S COMPLAINT - 9

1 evidentiary basis for rejecting the opinion.” Ghanim, 763 F.3d at 1162 (emphasis added).
2 As previously discussed, Dr. Sanchez’s opinion was not more heavily based on plaintiff’s
3 self-reports—including self-reports regarding prior drug use—than on Dr. Sanchez’s
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clinical observations and examination. And, in light of the additional clinical
observations by Dr. Sanchez, the ALJ’s decision to discount Dr. Sanchez’s opinion

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because plaintiff misrepresented the timing of his sobriety is not supported by substantial
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evidence. Moreover, the ALJ provided only a conclusory statement indicating plaintiff
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misrepresented his prior drug use (see AR. 126). Without further explanation or citation
to the record, the ALJ’s blanket statement is insufficient to reject Dr. Sanchez’s findings.

11 See Embrey, 849 F.2d at 421-22.
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Finally, an ALJ may consider inconsistent statements about a claimant’s drug use

13 to discount his credibility. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir.
14 2002); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). However, the ALJ does
15 not explain why reports of prior substance use in 2009 (see AR. 2116), and Dr. Sanchez’s
16 apparent lack of knowledge regarding that drug use, undermines Dr. Sanchez’s opinion
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regarding plaintiff’s mental impairments in 2012. The Court finds that discounting Dr.
Sanchez’s opinion on this basis does not amount to a specific and legitimate reason

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supported by substantial evidence. This is particularly the case where Dr. Sanchez
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checked a box indicating that plaintiff’s “current impairments [are not] primarily the
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result of alcohol or drug use within the past 60 days” (AR. 2348). That answer would not
have changed even if Dr. Sanchez was aware that plaintiff had potentially used

24 methamphetamine three years prior to the examination. Accordingly, none of the reasons

ORDER ON PLAINTIFF’S COMPLAINT - 10

1 offered by the ALJ to discount Dr. Sanchez’s opinion is specific and legitimate or
2 supported by substantial evidence.
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The Court also concludes that the error in the evaluation of Dr. Sanchez’s opinion
is not harmless. The Ninth Circuit has “recognized that harmless error principles apply in
the Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2011)

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(citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)
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(collecting cases)). Recently the Ninth Circuit reaffirmed the explanation in Stout that
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“ALJ errors in social security are harmless if they are ‘inconsequential to the ultimate
nondisability determination’ and that ‘a reviewing court cannot consider [an] error

11 harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting
12 the testimony, could have reached a different disability determination.’” Marsh v. Colvin,
13 792 F.3d 1170, 1173 (9th Cir. 2015) (citing Stout, 454 F.3d at 1055-56). In Marsh, even
14 though “the district court gave persuasive reasons to determine harmlessness,” the Ninth
15 Circuit reversed and remanded for further administrative proceedings, noting that “the
16 decision on disability rests with the ALJ and the Commissioner of the Social Security
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Administration in the first instance, not with a district court.” Id. (citing 20 C.F.R. §
404.1527(d)(1)-(3)). Here, because the ALJ improperly disregarded the opinion of Dr.

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Sanchez in forming the RFC and plaintiff was found to be capable of performing past
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relevant work based on that RFC, the error affected the ultimate disability determination
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and is not harmless.

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ORDER ON PLAINTIFF’S COMPLAINT - 11

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B. Drs. Dolan, Burdge, Basinski, and Chwastiak

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Plaintiff also contends that the ALJ erred in his treatment of the medical opinions

3 of Drs. Dolan, Burdge, Basinski, and Chwastiak (Dkt. 22, pp. 9-14). Dr. Burdge
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conducted a nonexamining psychological evaluation of plaintiff and as part of his
evaluation reviewed Dr. Sanchez’s examination and clinical findings (see AR. 2353). The

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Court has already concluded that the ALJ erred by failing to evaluate the medical opinion
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of Dr. Sanchez, see supra. Therefore, because Dr. Burdge’s opinion relies in part on a
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review of Dr. Sanchez’s medical opinion, the ALJ should reevaluate Dr. Burdge’s
opinion anew following remand. In addition, based on the record as a whole, the ALJ

11 should reevaluate all of the medical opinion evidence anew following remand of this
12 matter.
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(2)

Whether the ALJ erred in evaluating plaintiff’s testimony and
statements regarding his alleged impairments and symptoms.

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The Court already has concluded that the ALJ erred in reviewing the medical
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evidence and that this matter should be reversed and remanded for further consideration,
see supra, section 1. In addition, the evaluation of a claimant’s statements regarding

18 limitations relies in part on the assessment of the medical evidence. See 20 C.F.R. §
19 404.1529(c); SSR 16-3p, 2016 SSR LEXIS 4. Therefore, plaintiff’s testimony and
20 statements should be assessed anew following remand of this matter.
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(3)

Whether the ALJ erred in failing to consider Plaintiff’s DSHS
disability determination.

Plaintiff also argues that the ALJ erred in failing to consider the DSHS disability

24 determination (Dkt. 22, pp. 16-17). Plaintiff cites to a Washington State Department of

ORDER ON PLAINTIFF’S COMPLAINT - 12

1 Social & Health Services “Interim Assistance Reimbursement Authorization” (hereinafter
2 “DSHS Authorization”) (AR. 224). As noted by defendant, the DSHS Authorization is
3 not an official notification of disability, but rather a notice of interim assistance (AR.
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224). The DSHS Authorization indicates that plaintiff is agreeing to allow DSHS to
recover some money from the SSA should he be determined disabled (see id.). However,

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the DSHS Authorization does not describe whether plaintiff was determined disabled by
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DSHS, nor does the DSHS Authorization explain how the agency determines whether
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claimants are disabled (see id.). Absent additional evidence demonstrating that the ALJ
ignored significant probative evidence of another agency’s disability determination, the

11 ALJ did not err. See, e.g., LeDoux v. Astrue, No. 3:10-CV-05858-KLS, 2011 WL
12 5023393, at *14 (W.D. Wash. Oct. 18, 2011) (finding the ALJ did not err in failing to
13 consider DSHS disability determination because there was no indication “that DSHS
14 employs either the same or substantially similar standards for evaluating medical
15 evidence, assessing credibility or determining a claimant’s residual functional capacity or
16 ability to perform his or her past work or other jobs existing in significant numbers in the
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national economy”). Nevertheless, as this matter is already remanded for further
consideration, plaintiff or the ALJ may further develop the record related to any DSHS

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disability determination and findings related thereto.
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ORDER ON PLAINTIFF’S COMPLAINT - 13

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(4)

Whether the ALJ improperly denied plaintiff’s requested subpoenas
and improperly refused to admit secondary source material.

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A. Subpoena Requests
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Plaintiff avers that the ALJ abused his discretion by refusing to subpoena Drs.

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Stevik and Platter, while admitting their medical opinions as evidence (Dkt. 22, pp. 7-9).

6 Plaintiff does not challenge the ALJ’s refusal to subpoena Drs. Brown and Robinson (see
7 id.).
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When “necessary for the full presentation of a case,” an ALJ may either sua

9 sponte or at the request of a party issue subpoenas for the appearance and testimony of
10 witnesses and/or the production of documents. 20 C.F.R. §§ 404.950(d)(1) &
11 416.1450(d)(1). An ALJ has discretion to decide when a subpoena and related cross12
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examination is warranted. Solis v. Schweiker, 719 F.2d 301, 302 (9th Cir. 1983); see also
Tarter v. Astrue, 2012 WL 1631968 at *3 (W.D. Wash. Apr. 17, 2012) (report and

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recommendation to reverse and remand), adopted 2012 WL 1631887 (W.D. Wash. May
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9, 2012). An ALJ abuses such discretion, and violates the claimant’s procedural due
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process rights, if he or she does not subpoena or permit cross-examination of an
examining physician who is a “crucial witness” and “whose findings substantially

19 contradict the other medical testimony.” Solis, 719 F.2d at 301.
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The ALJ declined to subpoena Drs. Stevik and Platter, finding that the request did

21 not meet the regulatory requirements and that plaintiff “has not asserted facts that are in
22 question” (AR. 112-13). Rather, the ALJ determined that plaintiff’s request to subpoena
23 the doctors addressed “the weight that should be given” to the doctors (AR. 113). Further,
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ORDER ON PLAINTIFF’S COMPLAINT - 14

1 the ALJ determined that plaintiff did not persuasively explain why interrogatories were
2 inadequate to address his concerns (id.). Given that this matter is already reversed and
3 remanded to reevaluate the medical opinion evidence, the Court finds that plaintiff’s
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assignment of error—and defendant’s argument that plaintiff did not follow proper
regulations in requesting the subpoenas—is moot.

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Nevertheless, the Court notes that Drs. Stevik and Platter’s opinions appear to
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constitute the primary basis for the ALJ’s denial of benefits based upon plaintiff’s
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physical impairments and the ALJ’s determination that plaintiff can walk and/or stand for
6 hours in an 8 hour work day (see AR. 122, 125). Accordingly, upon remand, should

11 plaintiff follow proper regulatory guidelines and establish that the reports are crucial to
12 the ALJ’s decision, denial of the subpoenas may be deemed error. See Solis, 719 F.3d at
13 302 (“Because Solis availed himself of the right to request cross-examination, and
14 because the report was so crucial to the ALJ’s decision, we find that the denial of Solis’
15 request was an abuse of discretion.”). This is particularly true if plaintiff presents
16 evidence that a treating provider offered an opinion regarding functional physical
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limitations that contradict Drs. Stevik and Platter.
B. Denial to Admit Additional Evidence

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Plaintiff also maintains that the ALJ erred by refusing to admit additional
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secondary source materials, including (1) excerpts of the American Medical Association
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(“AMA”) Guidelines regarding respiratory diseases, including COPD; and (2) “other
documents referenced” (See Dkt. 22, pp. 6-7, 8-9).

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ORDER ON PLAINTIFF’S COMPLAINT - 15

1

In his decision, the ALJ noted that plaintiff “requested admission of five

2 documents that were electronically submitted but not exhibited” (AR. 113). The ALJ
3 described the documents including: (1) “a 1988 report on nicotine addiction”; (2) a
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chapter on respiratory system”; (3) an AMA guide to evaluation of respiratory
impairments”; (4) “letters addressed to [plaintiff’s counsel] dated August 20, 2013, and

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August 28, 2013, from James Czysz, PsyD, and Keith Sonnanburg, PhD, respectively”
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whom the ALJ noted had not treated plaintiff nor reviewed his records (AR. 113). The
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ALJ determined that the records were “not relevant to the claimant and are not ‘evidence’
as defined by” the regulations, which the ALJ determined relates to “information specific

11 to the individual claiming benefits” (AR. 113).
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An ALJ “may receive any evidence at the hearing that he or she believes relates to

13 your claim.” 20 C.F.R. § 405.350(b). In addition, ALJs may consider “evidence from
14 other sources to show the severity of your impairment(s) and how it affects your ability to
15 work.” 20 C.F.R. § 404.1513(d). The regulations include a non-exhaustive list of samples
16 of “other sources”, including other medical sources such as nurse practitioners,
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educational personnel, agency personnel, and lay witnesses. Id.
The Court does not have the benefit of reviewing the secondary source material

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plaintiff alleges was improperly excluded—only a description of the evidence. Without
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adequate information, the Court cannot determine whether exclusion of the evidence was
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legal error. In addition, the Court is not aware of any authority, and plaintiff has cited
none, establishing that the ALJ erred by excluding this secondary source material from

24 the administrative record in this case. Nevertheless, the Court need not address plaintiff’s

ORDER ON PLAINTIFF’S COMPLAINT - 16

1 contention because the Court has already determined that the ALJ erred and that this
2 matter should be remanded for further consideration.
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(5)

Whether the ALJ erred in considering plaintiff’s COPD.

Plaintiff also generally alleges that the ALJ erred in considering his COPD (see
Dkt. 22, pp. 6-7). Plaintiff’s argument here is not fully developed, particularly because

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the ALJ determined that plaintiff’s COPD is a severe impairment (see AR. 116). The
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Court “cannot manufacture arguments” for plaintiff, and can only review issues argued
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with specificity in plaintiff’s opening brief. Indep. Towers of Washington v. Washington,
350 F.3d 925, 929 (9th Cir. 2003) (citation and quotation omitted); see also Carmickle v.

11 Comm’r of Social Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (“We do not
12 address this finding because Carmickle failed to argue this issue with any specificity in
13 his briefing.”); Volkle v. Astrue, No. C11-1881-MJP-JPD, 2012 WL 2576335, at *3 n.2
14 (W.D. Wash. June 14, 2012), report and recommendation adopted, No. C11-1881-MJP,
15 2012 WL 2573065 (W.D. Wash. July 2, 2012) (same). Nonetheless, to the extent plaintiff
16 is arguing that the ALJ erred in assessing the medical opinion evidence and resulting
17
18

functional limitations related to his COPD, the Court has already determined that the ALJ
should reevaluate the medical opinion evidence upon remand. See Section 1, supra. So,

19

presumably, that will include a review of plaintiff’s functional limitations related to his
20

COPD.
21
22
23
24

ORDER ON PLAINTIFF’S COMPLAINT - 17

1

(6)

Whether plaintiff has established that ALJ Kennedy is biased against
claimants like plaintiff.

2
3
4

Finally, plaintiff argues that ALJ Kennedy is biased against plaintiff and claimants
like him (Dkt. 22, pp. 12-18). This Court has paid particular attention to this argument as

5 it is being used in several other cases in this district. See, e.g., Smith v. Colvin, No. C146 1530 TSZ, 2016 WL _________, at *6 n.4, *6-7 n.5 (W.D. Wash. Oct. 14, 2016);
7 Wrightman v. Colvin, No. C15-01557 BHS, 2016 WL 4425318, at *1 (W.D. Wash. Aug.
8 22, 2016); Yost v. Colvin, No. C15-1279 TSZ, 2016 WL 2989957, at *11 (W.D. Wash.
9 May 24, 2016). While this Court has already ruled that ALJ Kennedy committed
10
11
12

reversible error in this case, it is a far more serious allegation that he is somehow
disqualified from hearing future cases involving this plaintiff and potentially other
plaintiffs because of an inherent bias. While the Court recognizes that there may come a

13

time when this Court or some other court may need to intervene to address a claim of
14

inherent bias, plaintiff has failed to meet the heavy burden of proving such a claim here.
15
16
17

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

18 conflict of interest or some other specific reason for disqualification.” Id. Moreover,
19 although ALJs occasionally can reveal irritation or anger, “‘expressions of impatience,
20 dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect
21 men and women … sometimes display,’ do not establish bias.” Rollins v. Massanari, 246
22 F.3d 853, 858 (9th Cir. 2001) (quoting Liteky v. United States, 510 U.S. 540, 555–56
23

(1994)). Instead, a claimant asserting bias must “show that the ALJ’s behavior, in the

24

ORDER ON PLAINTIFF’S COMPLAINT - 18

1 context of the whole case, was ‘so extreme as to display clear inability to render fair
2 judgment.’” Rollins, 261 F.3d at 858 (quoting Liteky, 510 U.S. at 551).The burden of
3 establishing a disqualifying interest “rests on the party making the assertion.” Id. at 196.
4
5

That party must show “the ALJ’s behavior, in the context of the whole case, was ‘so
extreme as to display clear inability to render fair judgment.’” Further, “actual bias,”

6

rather than the “mere appearance of impropriety,” must be shown in order to disqualify
7

an ALJ. Bunnell v. Barnhart, 336 F.3d 1112, 1115 (9th Cir. 2003).
8
9
10

Plaintiff argues that ALJ Kennedy is biased against claimants like plaintiff (see
Dkt. 22, pp. 12-18). Specifically, plaintiff argues that ALJ Kennedy “is biased or

11 prejudiced against him and other claimants who (a) raise claims of disability based on
12 mental impairments for which Global Assessment of Function (“GAF”) is a common part
13 of diagnosis or evaluation and/or (b) who have received financial benefits from the
14 Washington State Department of Social and Health Services (“DSHS”)” (id. pp. 12-13).
15 To support his position, plaintiff submitted: (1) decisions by ALJ Kennedy and medical
16 records in 54 other claimants’ applications for disability benefits cases decided by ALJ
17
18

Kennedy; (2) declarations from five attorneys who assert that ALJ Kennedy is biased
against claimants like plaintiff; and (3) “additional evidence” including declarations from

19

other claimants who assert that ALJ Kennedy was biased against them and other
20

documents such as medical records for other claimants (see AR. 2457-4121). In addition,
21
22
23

in his supplemental brief, plaintiff compares ALJ Kennedy’s allowance rate with his
peers and argues that the negative results indicate that ALJ Kennedy is biased (see Dkt.

24 33, pp. 3-4).

ORDER ON PLAINTIFF’S COMPLAINT - 19

1

Although not clearly stated, it appears that plaintiff is claiming that ALJ is

2 regularly denying benefits to those persons with claimed mental disabilities who have
3 been found disabled by the Washington State Department of Social and Health Services
4
5

(see Dkt. 22, pages 12-13). But, it is unclear why ALJ Kennedy would be doing this, and
this Court declines to speculate what would motivate an ALJ to have such an implied

6

bias. In any event, plaintiff claims that this bias should disqualify ALJ Kennedy from re7

hearing plaintiff’s claim on remand.
8
9
10

A. Statistical Comparison Among 54 Prior Decisions
Plaintiff argues that certain terms in ALJ Kennedy’s decisions—“DSHS” and/or

11 “GAF” scores—correlate with particular results among the 54 decisions at issue (see Dkt.
12 22, pp. 17-18). Plaintiff maintains that the statistical evidence is significant and
13 demonstrates:
14
15
16
17
18
19
20
21
22
23
24

• 20 of the claimants included in the sample were DSHS recipients and had
mental illnesses with GAF scores. Of those 20, only 1 (or 5%) received a
favorable decision from ALJ Kennedy.
• Of the 19 decisions denied by the ALJ, plaintiff maintains the ALJ based
his decision to deny benefits on “unsupportable legal analysis of conflating
the DSHS forms those doctors filled out” with a different form used by
defendant.
• Of the 19 decisions denied by ALJ Kennedy, plaintiff argues that the ALJ
improperly denied benefits to DSHS/GAF claimants based on an erroneous
factual assessment that the claimant could perform work in the past and
therefore can perform work since the alleged onset date.
• Of the 54 decisions in the sample size, 26 opinions contained opinions by
37 doctors affiliated with a request for review by DSHS. Of those 37
doctors, the ALJ afforded “little” or “no” weight to 29 decisions, or 78%,
while six opinions (or 15.5%) were given “some” weight” and only two
opinions were given “significant” or “great” weight. In contrast, in those

ORDER ON PLAINTIFF’S COMPLAINT - 20

1

same 26 opinions, plaintiff argues that the ALJ gave significant or great
weight to 65% of opinions issued by DDS doctors.

2

• Of the 54 decisions in the sample, 30 (or 55%) referenced GAF scores. Of
those 30 decisions, the ALJ gave little to no weight to GAF scores in 24
decisions, and only three decisions were favorable to the claimant.

3
4
5

(Dkt. 22, pp. 12-18).
The Court has carefully reviewed the statistics presented by plaintiff, and finds

6

7 that plaintiff has not met his burden of establishing ALJ bias.

Initially, the Court notes that several courts have held that ALJ bias cannot be

8

9 proven by statistical analysis, but rather any ALJ’s alleged bias must be judged on a case
10 by case basis. See, e.g., Johnson v. Comm’r of Soc. Sec., No. 08–4901, 2009 WL
11
12

4666933, at *4 (D.N.J. Dec. 3, 2009) (noting that an ALJ’s impartiality should not be
judged by statistics of how that judge has previously ruled); Smith v. Astrue, No. H–07–

13

2229, 2008 WL 4200694, at *5–6 (S.D.Tex. Sept. 9, 2008) (finding that an ALJ’s
14

approval rate of only 7.19 percent was troubling, but insufficient, in and of itself, to show
15

bias).
16
17
18

But, even assuming that statistical evidence is at all relevant to the issue of ALJ
bias, it is clear that plaintiff has not demonstrated that his sample is random, unbiased and

19 statistically significant. See, e.g., Yost, 2016 WL 2989957, at *11 (finding plaintiff erred
20 in alleging ALJ bias by failing to demonstrate that samples in sample were randomly
21 selected and statistically sound); Smith, No. C14-1530 TSZ, 2016 WL _________, at *6
22 n.4, *6-7 n.5 (finding the same); Perkins v. Astrue, 648 F.3d 892, 903 (8th Cir. 2011)
23 (collecting cases, including: Doan v. Astrue, 04CV2309 DMS (RBB), 2010 WL 1031591,
24

ORDER ON PLAINTIFF’S COMPLAINT - 21

1 at *15 (S.D.Cal. March 19, 2010) (finding statistical evidence that ALJ had high rate of
2 denial during a particular time period was insufficient to establish bias without other
3 evidence such as the ALJ’s routine misapplication of the law, problematic credibility
4

determinations, or statistics regarding reversal rates).

5

Instead, plaintiff states that his sample is “likely” random, and represents about

6

14% of ALJ Kennedy’s decisions over an approximately nine month period (Dkt. 22, p.
7

18 n.21 citing AR. 367-68). In his briefing to the Appeals Council—to which defendant
8
9
10

had an opportunity to respond in supplemental briefing (see Dkts. 32, 33, 37, 38)—
plaintiff suggests that the 54 cases are statistically random because cases are randomly

11 assigned to ALJ Kennedy (AR. 367-68). However, the more relevant question is whether
12 the 54 cases analyzed represent a random selection of the cases that have actually been
13 assigned to ALJ Kennedy. After all, the alleged bias is against this particular ALJ, not the
14 entire panel of ALJs. In his supplemental brief, plaintiff argues that the “17% sample
15 provides fair representation” of the “289 decision ‘universe’” of ALJ Kennedy’s
16 decisions during the 9 month period in the first three quarters of fiscal year 2013 (see
17
18

Dkt. 33, pp. 3-4). No attempt was made to demonstrate that these 54 cases (or 50 cases
depending upon who is counting) are a fair and unbiased sampling of this “universe” of

19

cases.
20

And there is reason to suggest that it isn’t fair and unbiased. The 54 (or 50)
21
22
23

additional decisions at issue involve claimants represented by a relatively small number
of law firms, including Schroeter, Goldmark & Bender, plaintiff’s attorney’s law firm

24 (see AR. 2457-4121). None of the decisions involve claimants who appeared pro se,

ORDER ON PLAINTIFF’S COMPLAINT - 22

1 representing a potential sampling bias (see id.). Plaintiff has not described how the
2 demographics or case history of claimants represented by the law firms in question
3 compare with the demographics or case history of other claimants who appeared before
4
5

ALJ Kennedy. Nor has plaintiff identified how the other nine law firms involved were
selected. See Perkins, 648 F.3d at 903 (rejecting evidence of 57 other claimant’s selected

6

by plaintiff’s counsel). Also, the statistical evidence provided by plaintiff has little, if
7

any, probative value “because it is not moored to reversal rates or any other objective
8
9
10
11

standard that properly would allow a trier of fact to draw an inference of bias.” See Doan,
2010 WL 1031591, at *15.
Importantly, as applied to this case, plaintiff has failed to demonstrate that the

12 ALJ’s alleged bias affected this particular decision. An ALJ’s objectivity should not be
13 judged based solely on whether or not he or she deviates from the mean. Rather, an ALJ’s
14 bias, if any, must be demonstrated in the “context of the whole case,” and plaintiff must
15 demonstrate that as to this case in particular, the ALJ’s bias “was ‘so extreme as to
16 display clear inability to render fair judgment.’” Bunnell, 336 F.3d at 1115. In short,
17
18

plaintiff has failed to demonstrate that the data provided were random, unbiased and/or
statistically significant. Or as now-retired sportscaster Vin Scully once said, “statistics are

19

used much like a drunk uses a lamp post: for support, not illumination.”
20

B. Declaration of Attorneys
21
22
23

Plaintiff also directs the Court’s attention to five declarations from attorneys who
have appeared before ALJ Kennedy (see Dkt. 22, pp. 22-23 citing AR. 2459-80). Plaintiff

24

ORDER ON PLAINTIFF’S COMPLAINT - 23

1 argues the declarations support plaintiff’s claim that ALJ Kennedy is biased against
2 claimants like him (see id.).
3
4
5

The declarations offer accounts of their interactions with ALJ Kennedy. Without
repeating the various comments and opinions of these declarants, suffice it to say, they
make it clear that they do not believe that ALJ Kennedy demonstrated the kind of judicial

6

temperament that we would expect. See, e.g., AR. 2461, AR. 2464, AR. 2469, AR. 2473.
7

A judge should always demonstrate courtesy and respect for the litigants and their
8
9
10

counsel. Indeed, all persons involved in our system of justice should do the same. While
the proffered declarations are certainly troubling, the evidence falls short of supporting

11 plaintiff’s allegations of bias. There is not a single example cited to indicate that any the
12 ALJ’s errant comments resulted in a biased decision. Rather, the statements attributed to
13 him amount to “expressions of impatience, dissatisfaction, annoyance, and even anger,
14 that are within the bounds of what imperfect men and women … sometimes display [and]
15 do not establish bias.” Rollins, 246 F.3d at 858. Furthermore, plaintiff has presented no
16 evidence that with regard to this plaintiff in this case, that ALJ Kennedy demonstrated
17
18

any particular bias.
Therefore, while the Court understands that ALJ Kennedy is not without his

19

detractors, these statements do not provide a basis to conclude that he is incapable of
20

performing his duties in this case.
21
22
23
24

ORDER ON PLAINTIFF’S COMPLAINT - 24

1

C. Comparison to Peers

2

In his supplemental brief, plaintiff compares ALJ Kennedy’s allowance rate with

3 his peers and argues that the negative results for the 19 filtered “DSHS/GAF” claimants
4
5

indicates that ALJ Kennedy is biased (see Dkt. 33, pp. 3-4).
This Court is hesitant to conclude that a disparity between ALJ Kennedy’s and his

6

colleagues’ statistics would provide any support for plaintiff’s argument of ALJ bias. See
7

Yost, 2016 WL 2989957, at *3. As noted by another Court in this district, “[p]laintiff's
8
9
10

contention that [ALJ Kennedy’s] below-median rate of favorable decisions somehow
shows ‘bias’ ignores the fact that ALJs hear a matter only after benefits have already

11 been denied on initial determination and after reconsideration.” Id. (citing 20 C.F.R. §§
12 404.900(a) & 416.1400(a)). Moreover, ALJ Kennedy’s “lower rate of favorable decisions
13 (or reversals) might simply reflect that determinations made initially and/or on
14 reconsideration in this region are of higher quality than elsewhere in the nation, and thus,
15 does not itself substantiate any parsimony or ‘bias’ on the part of” ALJ Kennedy. Id.
16
17
18

This Court would be more concerned if ALJ Kennedy had an eye on his statistical
averages when rendering a decision rather than the merits of the particular case before
him. We would be remiss if we were to conclude that every judge must fall within some

19

statistical “average” in order to demonstrate his or her dispassionate allegiance to justice.
20

D. Additional Materials
21
22
23

Finally, plaintiff directs the Court to “additional medical and other information”
allegedly supporting the existence of a pattern of bias against DSHS recipients with GAF

24 scores (see Dkt. 22, p 23). Plaintiff makes no argument in support of this additional

ORDER ON PLAINTIFF’S COMPLAINT - 25

1 evidence, and instead invites the Court to review an additional 382 pages of the record
2 which plaintiff suggests “further demonstrates the ALJ’s pattern of routine misapplication
3 of law and problematic credibility determinations” (see id.). This Court declines the
4
5

invitation to seek out gremlins of alleged bias in the attached records and must rely on the
arguments presented, not the arguments plaintiff has not presented. See Carmickle, 533

6

F.3d at 1161 n.2.
7

Based on the forgoing, the Court finds that plaintiff has failed to meet his burden
8
9
10

of demonstrating that ALJ Kennedy is biased against him and claimants like him. Thus,
the Court will not direct the Commissioner to reassign this case upon remand.

11 Nonetheless, nothing in this Order prevents the Commissioner from reassigning this
12 matter to a different ALJ upon remand.
13

CONCLUSION

14

Based on these reasons and the relevant record, the Court ORDERS that this

15 matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §
16 405(g) to the Acting Commissioner for further consideration consistent with this order.
17
18

JUDGMENT should be for Plaintiff and the case should be closed.
Dated this 1st day of November, 2016.

19

A

20

J. Richard Creatura
United States Magistrate Judge

21
22
23
24

ORDER ON PLAINTIFF’S COMPLAINT - 26