Kathleen Whalen v. Nancy Berryhill ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHLEEN M. WHALEN, No. 16-35736
Plaintiff-Appellant, D.C. No. 2:15-cv-01963-RSM
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief Judge, Presiding
Submitted May 15, 2018**
Seattle, Washington
Before: BERZON, THACKER,*** and HURWITZ, Circuit Judges.
After her application for social security disability insurance benefits was
denied, Kathleen Whalen appealed the Commissioner of Social Security’s decision
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Stephanie Dawn Thacker, United States Circuit Judge
for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.
to the district court. The Commissioner then requested the district court remand for
further proceedings before an administrative law judge (“ALJ”). Whalen did not
oppose the remand, but asked that the district court direct a remand to an ALJ other
than the one who had originally denied her application. The district court denied
that request; Whalen’s appeal to this Court challenges only that denial. We have
jurisdiction under 28 U.S.C. § 1291,1 and affirm.
1. “[A]ctual bias must be shown to disqualify an administrative law judge.”
Bunnell v. Barnhart, 336 F.3d 1112, 1115 (9th Cir. 2003).2 The ALJ’s failure to
subpoena witnesses and documents that Whalen requested, even if error, does not
demonstrate actual bias. See Liteky v. United States, 510 U.S. 540, 555 (1994)
(holding that judicial rulings are “[a]lmost invariably . . . proper grounds for appeal,
not for recusal”); Brisbon v. Corkill, 151 F. App’x 576, 577–78 (9th Cir. 2005)
(finding no bias merely because party “received unfavorable rulings” from judge).3
Nor does the ALJ’s consideration of the Cooperative Disability Investigations Unit
1
The clerk’s order to show cause, Dkt. 3, as to our appellate jurisdiction is
discharged.
2
Contrary to Whalen’s contention, Social Security Ruling 13-1p does not
mandate disqualification for “appearance of impropriety,” but rather “explains the .
. . vehicles . . . for addressing complaints of unfairness, prejudice, partiality, bias,
misconduct, or discrimination by an administrative law judge.” Id.
3
Whalen also asks us to overrule Bunnell, but “[a] three judge panel of this
court cannot overrule a prior decision of this court.” In re Complaint of Ross Island
Sand & Gravel, 226 F.3d 1015, 1018 (9th Cir. 2000) (per curiam).
2
(“CDIU”) report show actual bias. As Whalen concedes, “[t]he CDIU report was
certainly admissible.” See 42 U.S.C. § 405(b)(1).
2. Whalen also argues that remand to a different ALJ is warranted because the
original ALJ “suggested that he already made up his mind” and “affirmatively
misrepresented the record.” See Reed v. Massanari, 270 F.3d 838, 845 (9th Cir.
2001) (remanding to a new ALJ absent a showing of actual bias). But, although the
ALJ initially stated that he “would find that the claimant has no credibility” after
viewing a surveillance video, he later made clear that he was open to changing his
mind, “depending on the evidence that’s developed.” Indeed, the ALJ eventually
found Whalen disabled (albeit with a different disability onset date than she alleged).
The error in the ALJ’s decision, which inaccurately stated that Whalen’s request for
“a subpoena of the investigator, records, tapes, and other evidence related to the CDI
report” had been granted, does not demonstrate that Whalen will not receive a fair
hearing on remand.
AFFIRMED.4
4
Whalen’s motions for judicial notice, Dkt. 42, and to file a late brief, Dkt. 46,
are GRANTED.
3