Kenneth Gardner v. Kilolo Kijakazi

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH MARTIN GARDNER, No. 19-55044
Plaintiff-Appellant, D.C. No.
3:16-cv-02940-JAH-WVG
v.
KILOLO KIJAKAZI, Acting Commissioner MEMORANDUM*
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted May 12, 2022**
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and AMON,*** District
Judge
Kenneth Martin Gardner appeals pro se the district court’s affirmance of the
*
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 Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
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Commissioner of Social Security’s denial of his application for Disability
Insurance Benefits under Title II of the Social Security Act. We have jurisdiction
under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and we affirm.
1. The district court did not abuse its discretion by rejecting Gardner’s
argument that the ALJ was biased against him based on the statistics and
information provided on a third-party website. See Bunnell v. Barnhart, 336 F.3d
1112, 1114-15 (9th Cir. 2003) (setting forth the standard of review and explaining
that to disqualify an ALJ, a claimant must show actual bias); Verduzco v. Apfel,
188 F.3d 1087, 1089 (9th Cir. 1999) (noting that “ALJs . . . are presumed to be
unbiased,” and that the party asserting bias has the burden of rebutting this
presumption by showing some “specific reason for disqualification” (quoting
Schweiker v. McClure, 456 U.S. 188, 195 (1982))). Setting aside significant issues
with respect to the reliability and probative force of the information provided on
the website, the statistics Gardner relies on do not support his contention that the
ALJ’s denial rates in the year when Gardner’s case was decided were unreasonably
high as compared to the national average. Moreover, as the district court pointed
out, neither Gardner nor the website explained how the cases underlying the
statistics were selected, whether they concerned claimants with post-traumatic
stress disorder, or how many of the ALJ’s decisions were overturned. Gardner’s
claim of bias based on other claimants’ reviews of the ALJ posted on the website is
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also not persuasive. The website contains mixed reviews for the ALJ, with five
negative and four positive reviews. And even if the reviews were all negative, the
existence of negative reviews, purportedly left by rejected claimants, does not by
itself establish categorical bias against individuals with post-traumatic stress
disorder. Thus, the district court did not abuse its discretion by rejecting Gardner’s
claim of bias. See Bunnell, 336 F.3d at 1114-15; Verduzco, 188 F.3d at 1089.
2. Gardner’s second basis for contending that the ALJ was biased—the
ALJ’s negative comments at the hearing—is similarly meritless. To demonstrate
bias, a claimant must show that “the ALJ’s behavior, in the context of the whole
case, was ‘so extreme as to display clear inability to render fair judgment.’”
Rollins v. Massanari, 261 F.3d 853, 858 (9th Cir. 2001) (quoting Liteky v. United
States, 510 U.S. 540, 551 (1994)). The ALJ’s comments do not meet this standard,
and the district court did not abuse its discretion by rejecting Gardner’s bias
argument.
3. We also reject Gardner’s arguments that the ALJ erred in finding at Step
Five that Gardner could perform certain unskilled work. Gardner first argues that
it was not “reasonable” for the ALJ to find that Gardner, who had a prior career as
a salesperson, would be suitable as a cleaning person merely because that is “a job
that was substantially below [his] former salary level.” This argument is legally
incorrect. See 20 C.F.R. § 404.1505(a) (defining “disability” as not only the
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inability to perform “past relevant work,” but the inability to perform “any other
substantial gainful work that exists in the national economy”). Gardner also argues
that due to his limited ability to interact with coworkers and the public, he could
not perform the job of cleaner. This argument also fails. The ALJ’s reliance on
the Vocational Expert’s testimony was supported by substantial evidence, and the
ALJ found that the Vocational Expert’s testimony was consistent with the
information contained in the Dictionary of Occupational Titles (“DOT”). See
Pinto v. Massanari, 249 F.3d 840, 845-46 (9th Cir. 2001) (noting that the DOT is
usually the “the best source for how a job is generally performed”). Moreover,
Gardner does not challenge two additional occupations the Vocational Expert and
ALJ identified, and therefore, concedes the issue. See 20 C.F.R. § 404.1566(b)
(“Work exists in the national economy when there is a significant number of jobs
(in one or more occupations) having requirements which you are able to meet with
your physical or mental abilities and vocational qualifications.”)
4. Finally, the district court did not abuse its discretion by denying Gardner’s
request for oral argument. See Fed. R. Civ. P. 78(b) (“By rule or order, the court
may provide for submitting and determining motions on briefs, without oral
hearings.”); Morrow v. Topping, 437 F.2d 1155, 1156-57 (9th Cir. 1971) (per
curiam) (finding no due process violation where the district court dismissed the
plaintiff’s action without oral argument).
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AFFIRMED.