Whalen v. Colvin

Filing 16

ORDER ON SOCIAL SECURITY DISABILITY by Judge Ricardo S Martinez. (AD)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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KATHLEEN M. WHALEN,

Case No. C15-1963RSM

Plaintiff,
ORDER ON SOCIAL SECURITY
DISABILITY

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v.
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CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.

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I.

INTRODUCTION

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Plaintiff, Kathleen Whalen, brings this action pursuant to 42 U.S.C. §§ 405(g), and

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1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security

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denying her application for Disability Insurance Benefits under Title II of the Social Security

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Act. This matter has been fully briefed and, after reviewing the record in its entirety, the Court

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REVERSES and REMANDS the Commissioner’s decision for further proceedings.
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II.

BACKGROUND

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Plaintiff filed concurrent applications for Social Security Disability Insurance (SSDI)

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and Supplemental Security Income (“SSI”) disability benefits on October 3, 2011. Tr. 397 and

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401. She reapplied for Title XVI benefits on March 21, 2012 and Title II benefits on March 26,
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2012. Tr. 410-411. Ms. Whalen alleged severe limitations from her dystonia which results in
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ORDER ON SOCIAL SECURITY DISABILITY, PAGE - 1

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unpredictable, involuntary jerking and twisting movements, since January 8, 2010, her

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amended onset date. Tr. 56. A hearing was held before Administrative Law Judge M.J. Adams

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on June 4, 2013, and supplemental hearings took place on February 19, 2014 and June 24,

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2014. Tr. 53, 83 and 112. ALJ Adams ultimately issued a partially favorable decision dated

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July 24, 2014, granting Plaintiff her SSI benefits. Tr. 8-33. Ms. Whalen sought review of the
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denial of her SSDI benefits, which the Appeals Council denied. Tr. 1. Accordingly, the ALJ’s

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decision became the Commissioner’s final decision subject to review. Ms. Whalen then filed a

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timely appeal to this Court.

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The parties now agree that this case should be remanded for further proceedings, to

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include reconsideration of medical evidence and new vocational expert testimony. Dkt. #13.
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However, the parties have not been able to agree on the scope of the remand.

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III.

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JURISDICTION

Jurisdiction to review the Commissioner’s decision exists pursuant to 42 U.S.C. §§

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405(g) and 1383(c)(3).
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IV.

DISCUSSION

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In the instant matter, Plaintiff has asked the Court to remand this matter for a new

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hearing before a different ALJ to assess her disability from her alleged onset date through

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November 1, 2013. Dkt. #9 at 1 2 and 18. She requests a new ALJ on the basis that:

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the ALJ failed to fully and fairly develop the record and that she had been
denied due process by the admission of a highly prejudicial investigative
report, which she maintains was obtained in violation of her constitutional
rights. [Dkt. #9, 16-17] During the course of the administrative
proceedings, Plaintiff requested on numerous occasions – and in accordance
with and the Commissioner’s rules – that the ALJ subpoena both the
investigator and all of his notes in order to appeal the Commissioner’s
adverse determinations. [AR. 12, 18, 24, 44, 57, 101,109, 549, 1102] As
indicated in Plaintiff’s Opening Brief, the ALJ failed to do so; and Plaintiff
was never made aware of the full extent of the officer’s investigation.

ORDER ON SOCIAL SECURITY DISABILITY, PAGE - 2

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Furthermore, Whalen specifically asked for the relief sought in this motion.
[Dkt. #9, 1-2] Finally, ALJ Adams is identified as a potential witness in the
civil rights case brought against the detective in this action; [Ex. A,
Counsel’s Decl] having him serve as the ALJ in the case on remand and a
potential witness in her civil rights action raises a perception of bias which
could readily be dispelled by assigning the case to another ALJ.

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Dkt. #14 at 2-3. Plaintiff also argues that it is not necessary to reopen the decision as to her SSI

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benefits. It appears that the parties cannot agree whether the Court should reopen Plaintiff’s

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entire case, including her SSI claim, and whether the Court should direct that the matter be held

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before a different ALJ.
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As an initial matter, the Court agrees with Plaintiff that the favorable determination on

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Plaintiff’s SSI application should not be reopened. It does not appear that Plaintiff appealed

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that portion of her decision to this Court, and the Commissioner provides no legal argument as

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to why that portion of the decision must be reopened. See Dkts. #13 and #14 at 1.

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However, the Court disagrees with Plaintiff that this matter should be reassigned to a
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new ALJ on remand. The Ninth Circuit has held that “actual bias must be shown to disqualify

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an administrative law judge.” Bunnell v. Barnhart, 336 F.3d 1112, 1115 (9th Cir. 2003).

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Plaintiff has failed to demonstrate actual bias on the record before this Court. While Plaintiff

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presents the Court with several cases from other District Courts in this Circuit where a new
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ALJ was directed despite a lack of showing actual bias, those cases are distinguishable. Those

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cases involved situations where the prior ALJs had failed to follow orders from the court, failed

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to examine the matter in any timely matter, or had stated on the record that they would not

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accept the opinions of the only medical witnesses available. See e.g., Reed v. Massanari, 270

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F.3d 838, 845 (9th Cir. 2001); Baldree v. Colvin, C.D. Cal. No. SACV 15-00011-KLS, (Sept.
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21, 2015), Campbell v. Astrue, No. CV 08-7059-PLA, 2009 WL 3244745, *10, n.11 (C.D. Cal.

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Oct. 7, 2009). As for the case before Judge Pechman, that matter is in its infancy, and there is

ORDER ON SOCIAL SECURITY DISABILITY, PAGE - 3

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no way of knowing if and when ALJ Adams will ever be used as a witness in that case.
Accordingly, the Court finds that Plaintiff fails to demonstrate the necessity for a new ALJ.
V.

CONCLUSION

For the foregoing reasons, the Commissioner’s decision is REVERSED and the case is

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REMANDED for further administrative proceedings on her SSDI claim.

The ALJ shall

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reevaluate the medical and other opinion evidence, Ms. Whalen’s RFC, her credibility and, if

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necessary, steps two, three, four and five of the five step sequential evaluation. The ALJ shall

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not reopen the prior decision on Plaintiff’s SSI claim.

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Plaintiff may choose to re-contact the treating and examining sources for updated

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records and other medical source statements and obtain additional medical and vocational
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expert testimony to present at the hearing.
DATED this 12th day of July, 2016.

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A

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER ON SOCIAL SECURITY DISABILITY, PAGE - 4