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Alazawy v. Colvin

United States District Court, D. Maine

December 26, 2016

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


          John H. Rich, III United States Magistrate Judge.

         This Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the administrative law judge demonstrated improper bias against her because of her religious practices, cultural customs, and role as a mother, improperly substituted her own views for expert medical opinion, and erroneously refused to reopen a previous SSI application. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 13) at 3-14. I find no error and, accordingly, affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 416.920; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff had severe impairments of post-traumatic stress disorder (“PTSD”) and depression, Finding 2, Record at 18; that she did not have an impairment or combination of impairments that met or medically equaled the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the “Listings”), Finding 3, id. at 19; that she had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, with the following nonexertional limitations: she could understand, remember, and carry out simple, repetitive instructions and persist at that level of complexity for eight hours a day, five days a week consistently, she would need to avoid work with the public, but could interact with co-workers and supervisors appropriately, and she could adapt to routine changes in the work setting, Finding 5, id. at 20-21; that, considering her age (27 years old, defined as a younger individual, on September 5, 2012, the date her application was filed), education (illiterate and able [sic] to communicate in English), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 6-9, id. at 24; and that she, therefore, had not been disabled since September 5, 2012, Finding 10, id. at 25.[2] The Appeals Council declined to review the decision, id. at 1-4, making the decision the final determination of the commissioner, 20 C.F.R. § 416.1481; Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

         The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. § 1383(c)(3); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

         The administrative law judge reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than her past relevant work. 20 C.F.R. § 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         The statement of errors also implicates Step 3 of the sequential evaluation process, at which step a claimant bears the burden of proving that her impairment or combination of impairments meets or equals a listing. 20 C.F.R. § 416.920(d); Dudley v. Secretary of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant's impairment(s) must satisfy all criteria of that listing, including required objective medical findings. 20 C.F.R. § 416.925(c)(3). To equal a listing, the claimant's impairment(s) must be “at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 416.926(a).

         I. Discussion

         A. Bias

         The plaintiff first contends that the administrative law judge made multiple inappropriate references to her religious and cultural practices and the fact that she was a homemaker and mother, generally evidencing bias and undermining her specific findings that (i) the opinions of treating physician Rana Dagher, M.D., were entitled to little weight, (ii) the plaintiff's condition did not meet or medically equal the criteria of Listings 12.04 (affective disorders) or 12.06 (anxiety-related disorders), and (iii) the plaintiff's allegations were not entirely credible. See Statement of Errors at 3-13. She fails to make a persuasive case for remand on this basis.

         1. Generally

         As the plaintiff asserts, “[a] claimant in a Social Security disability proceeding is entitled to a fair, unbiased and impartial hearing, presided over by an unbiased non-partisan trier of fact.” Id. at 5 (quoting Hendricks v. Sullivan, No. 90-0709-CV-W-3, 1992 WL 120383, at *8 (W.D. Mo. Feb. 12, 1992) (citing Local No. 3, United Packinghouse Workers of Am. v. NLRB, 210 F.2d 325, 330 (8th Cir. 1954)). She notes that this is of particular importance in an administrative setting and that, once bias appears, fairness demands a remand, even when there is evidence to support the tainted judgment:

[A] fair trial by an unbiased and non-partisan trier of the facts is of the essence of the adjudicatory process as well when the judging is done in an administrative proceeding by an administrative functionary as when it is done in a court by a judge. Indeed, if there is any difference, the rigidity of the requirement that the trier be impartial and unconcerned in the result applies more strictly to an administrative adjudication where many of the safeguards which have been thrown around court proceedings have, in the interest of expedition and a supposed administrative efficiency been relaxed. Nor will the fact that an examination of the record shows that there was evidence which would support the judgment, at all save a trial from the charge of unfairness, for when the fault of bias and prejudice in a judge first rears its ugly head, its effect remains throughout the whole proceeding. Once partiality appears, and particularly when, though challenged, it is unrelieved against, it taints and vitiates all of the proceedings, and no judgement based upon them may stand.

Id. (quoting Hendricks, 1992 WL 120383, at *9) (quoting United Packinghouse, 210 F.2d at 330).

         However, administrative law judges are presumed to act impartially - a presumption that “can be overcome only with convincing evidence that a risk of actual bias or prejudgment is present.” Bickford v. Barnhart, No. 05-236-P-S, 2006 WL 2822391, at *5 (D. Me. Sept. 29, 2006) (rec. dec., aff'd Oct. 20, 2006). The plaintiff falls short of meeting this standard.

         The plaintiff analogizes this case to Hamilton v. Colvin, No. CV 13-08528 SS, 2015 WL 162984 (C.D. Calif. Jan. 13, 2015), in which the United States District Court for the Central District of California found bias sufficient to warrant assigning a case to a different administrative law judge on remand when an administrative law judge “made four direct references to [a claimant's] ethnicity, none of which were necessary to resolve any of the issues presented[.]” Statement of Errors at 5-6 (quoting Hamilton, 2015 WL 162984, at *11) (emphasis in original)).

         However, here, for the reasons discussed below, none of the assertedly objectionable references to the plaintiff's religion or culture or her status as a parent and homemaker is inappropriate in the context in which it was considered. As a result, as counsel for the commissioner contended at oral argument, the plaintiff fails to demonstrate “that the ALJ's [administrative law judge's] behavior, in the context of the whole case, was so extreme as to display clear inability to render fair judgment.” Hamilton, 2015 WL 162984, at *9 (citation and internal quotation marks omitted).

         2. Handling of Treating Physician's Opinions

         The plaintiff, an Iraqi refugee, “came to this country in 2009 suffering anxiety problems because of being alone as her husband was in prison.” Record at 702. In a treatment note dated May 6, 2010, Jennifer A. Zeliger, M.D., the plaintiff's obstetrician-gynecologist, stated that she was “very concerned for [the plaintiff's] mental health[.]” Id. at 349. She noted that the plaintiff told her that, following the birth of her second child in mid-February 2010, she had “had difficulty sleeping, poor appetite, spends much of her time tearful, no energy and while she can functionally take care of her children, she recognizes she is not engaging with them as she should.” Id. at 348. She also noted that the plaintiff's husband had indicated that his wife had been “fine until after her recent delivery” but now “misse[d] her family very much” and “bec[a]me[] terrified wheneve[r] she s[aw] a policeman on the street.” Id. She added that the plaintiff's husband reported that the couple had had “a traumatic history in Iraq” and that he previously had been “a political prisoner at one point.” Id. (internal quotation marks omitted).

         Dr. Zeliger assessed the plaintiff with “likely postpartum depression, possible PTSD, and some suicidal ideation[.]” Id. at 349. She noted that she had started the plaintiff on Prozac two weeks prior to that time, with no improvement, and that she planned to continue efforts to obtain an appointment for her with a psychiatrist. See id. at 348-49.

         The plaintiff began treatment with a counselor, Rose A. Bradshaw, L.C.S.W., on May 14, 2010, see id. at 886, and with a psychiatrist, Michael Garnett, M.D., on December 23, 2010, see id. at 607. Dr. Garnett diagnosed her with major depression, single episode, moderate, and PTSD. See id. at 609. Dr. Dagher, of the same practice group, became the plaintiff's psychiatrist on November 5, 2012. See id. at 706. Dr. Dagher submitted two opinion letters in support of the plaintiff's SSI application, dated April 2, 2013, and November 10, 2014, see id. at 706-07, 1229-30, and a Medical Source Statement of Ability To Do Work-Related Activities (Mental) (“Mental RFC Opinion”) dated November 10, 2014, see id. at 1226-28.

         In her 2013 letter, Dr. Dagher stated, in relevant part:

[The plaintiff's] psychiatric illness has been particularly resistant to treatment. [She] has failed trials of Paxil, Lexapro, and Remeron. On her current dose of Effexor XR (300 mg per day) her depressive symptoms are still fluctuating between being moderate to severe. She struggles with death wishes and fleeting suicidal thoughts. Her insomnia is particularly debilitating and [the plaintiff] has failed trials of zolpidem, trazodone, Seroquel, diazepam, and olanzapine. With using Seroquel and olanzapine for insomnia, my approach was unconventional, but I was desperate to control [her] extreme hyper-vigilance and insomnia at night, to no avail. The [plaintiff] is still sleeping at night anywhere between 2 and 4 hours, and sleep is interrupted by nightmares. She also experiences auditory hallucinations when she is awake. The auditory hallucinations (like hearing knocks on the door) have not responded to Seroquel and then olanzapine. [She] is constantly worried and hyper-vigilant. She has intrusive memories of war trauma, when she was held at gunpoint (while 5 months pregnant) and her husband dragged out of the house and then he was detained and tortured for 11 months. At times [she] is not able to achieve basic tasks of cooking; the dish will drop out of her hand; or she will inadvertently cut herself while using the knife, due to her lack of focus. A long time ago she gave up on helping with mail and different paperwork, due to her short-term memory deficits.
[The plaintiff] is disabled due to her psychiatric illness. She is not able to retain any new information. She is not capable of holding a job due to her poor energy level, poor concentration, ongoing hyper-vigilance and anxiety. To her credit, she has always been compliant with appointments and medications and oftentimes she has tolerated various side effects (dizziness, headaches) in order to give the medication a chance to start working.

Id. at 706-07.

         In her 2014 letter, Dr. Dagher stated that the plaintiff had “on-going symptoms of Depression, and PTSD, in the context of resettling in the US, adjusting to a new lifestyle and grieving the loss of a happy life she was leading before all this happened.” Id. at 1229. She noted:

Most importantly, insomnia has been resistant to all kinds of medications. It appears as if [the plaintiff] is in a permanent state of hyper arousal and hyper vigilance, whereby she cannot relax enough to let go and sleep at night. This state of hyper arousal and chronic sleep deprivation has taken a toll on her mental capabilities: [her] ability to sustain attention and to retain even simple instructions or information is extremely limited.

Id. Dr. Dagher noted, for example, that the plaintiff misplaced items, dropped dishes, burned her hands on the oven, and many times could not provide names, approximate locations, or dates in response to Dr. Dagher's questions. See id. at 1229-30. She again stated that, in her opinion, the plaintiff was “not capable of sustained gainful employment or work, performed five days a week, 8 hours a day” or, for that matter, “any amount of hours of employment.” Id. at 1230.

         In her Mental RFC Opinion, Dr. Dagher indicated that the plaintiff had (i) marked limitations in understanding, remembering, and carrying out simple instructions and extreme limitations in understanding, remembering, and carrying out complex instructions, and (ii) marked limitations in interacting appropriately with the public, co-workers, and supervisors and extreme limitations in responding appropriately to usual work situations and to ...

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