MELINDA LYONS DUFFIELD, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
NO. CV 12-10642-VAP (AS)
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
DATED: February 19, 2014
MELINDA LYONS DUFFIELD, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
NO. CV 12-10642-VAP (AS)
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
DATED: February 19, 2014
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGEPursuant to 28 U.S.C. section 636(b)(1)(B), the Court has reviewed the complaint, the records on file, and the attached Report and Recommendation of United States Magistrate Judge. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge. However, the Court addresses certain arguments raised in the Objections below.
Defendant contends that the Magistrate Judge erred by failing to consider whether substantial evidence supported the decision of the Administrative Law Judge ("ALJ") to deny benefits and by
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considering arguments that Plaintiff had not presented, ie the duty to develop the record. (Defendant's Objections, "Objections, " at 2-3). Defendant also contends that the record was fully developed, pointing out that the ALJ was not required to consult a medical expert because Plaintiff requested a decision on the evidence in the record. (Id. at 4). Plaintiff concedes that, while the ALJ did not have a duty to consult a medical expert or a vocational expert, once the ALJ acknowledged the need for a medical expert, he was required to do so in order to fully develop the record. (Id. at 3-4).
The Court finds that the ALJ did not adequately develop the record in this case by failing to consult a medical expert regarding the effect of Plaintiff's infection on her claimed disability. Although the regulations do not require the ALJ to obtain medical expert testimony, here the ALJ stated, at the conclusion of the administrative hearing, that he would be propounding interrogatories to an immunologist in order to determine whether Plaintiff's condition was equivalent to a listing (A. R. 69). This indicates that the ALJ did not consider the record fully developed on this issue. The ALJ subsequently issued interrogatories to a medical doctor but failed to follow-up when that doctor did not respond to the interrogatories. Thus, the ALJ did not fully develop the record in this case and the Court finds that remand is appropriate for further consideration of this issue.
Defendant contends that the ALJ was not required to consider the lay witness testimony of Plaintiff's husband because he was not
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an "acceptable medical source" under the regulations and that his testimony could therefore be disregarded for germane reasons. Defendant claims that the ALJ gave germane reasons for discrediting the testimony of Plaintiff's husband based upon its inconsistency with the medical evidence and for the same reasons that the ALJ rejected the Plaintiff's own testimony. (Objection at 7-11).
Under 20 C. F. R. § 404. 1513(d)(4), evidence from non-medical sources such as spouses can be considered to show the severity of a claimant's alleged impairments and the effect of the impairments on a claimant's ability to work. Here, the ALJ discredited the statements of Plaintiff's husband because the statements were unsworn and because of his "implied bias toward the claimant given his interest in the outcome of the case. " (A. R. 33). As set forth in the Magistrate Judge's Report and Recommendation, (1) the ALJ erred in disregarding the testimony on these grounds; and (2) to the extent the ALJ determined that the lay witness testimony was "not fully consistent with the medical opinions and other evidence, " (A. R. 33), this finding is insufficiently specific to support the ALJ's decision to disregard the testimony. See Bruce v. Astrue 557 F. 3d 1113, 1115 (9th Cir. 2009).
The Court has reviewed and considered Defendant's remaining Objections to the Report and Recommendation which are without merit and do not cause the Court to reconsider its decision to accept the Magistrate Judge's conclusions and recommendations.
Finally, Plaintiff's request that the case be assigned to a
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different ALJ is meritless. (Response at 7-8). Plaintiff has not carried her considerable burden of demonstrating judicial bias. See Liteky v. United States 510 U.S. 540 555 (1994) ("judicial rulings alone almost never constitute a valid basis for a bias or partiality motion . . . judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge"); see also Verduzco v. Apfel 188 F. 3d 1087, 1089-90 (9th Cir. 1999) ("ALJs and other similar quasi-judicial administrative officers are presumed to be unbiased").
IT IS ORDERED that: (1) the Report and Recommendation is accepted and adopted as the Findings of Fact and Conclusions of Law herein; (2) the decision of the Administrative Law Judge is vacated; and (3) the matter is remanded to the Social Security Administration for further administrative action consistent with the Report and Recommendation.
IT IS FURTHER ORDERED that the Clerk shall serve forthwith a copy of this Order, the Magistrate Judge's Report and Recommendation and the Judgment on counsel for Plaintiff and on the United States Attorney for the Central District of California.
__________________________ VIRGINIA A. PHILLIPS UNITED STATES DISTRICT JUDGE
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