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PIERCE v. BARNHART

United States District Court, Northern District of California


August 15, 2003

ALLISON PIERCE, PLAINTIFF (S),
v.
JO ANNE B. BARNHART, DEFENDANT (S)

The opinion of the court was delivered by: Bernard Zimmerman, Magistrate Judge

ORDER OF REMAND

The principal issue before the court is whether substantial evidence supports the administrative law judge's finding that the onset of disability was September 1, 1999. In reaching her conclusion, the ALJ relied heavily on the opinion of Ms. Bruhn dated September 20, 1999. Administrative Record of the Proceedings ("AR") at 993. I find nothing in that letter, or in Ms. Bruhn's other reports (AR at 1011-1020), which refers to September 1, 1999 as the date of disability onset. Nor do any of the other medical reports which the ALJ cited, such as Dr. Harf's report dated November 19, 1998 (AR at 968), Ms. Bruhn's letter dated June 25, 2001 (AR at 836-37) or Dr. Kaur's opinion dated February 2000 (AR [ Page 2]

at 994-996) unambiguously point to a September 1, 1999 date. The onset date is further complicated by ALJ's determination, which is supported by substantial evidence, that the claimant contributed to her problems through abuse of drugs and alcohol. This required the ALJ to determine, in part, when claimant's drug and alcohol abuse had abated to the point where her disability was recognizable under Social Security law. See 20 C.F.R. § 416.935.

Faced with a voluminous record spanning many years which provides no clear answer to that question, the ALJ understandably tried to give claimant "the benefit of the doubt." AR at 23, 24, 26. However, the Ninth Circuit has repeatedly interpreted Social Security regulation 83-20 to require an administrative law judge, when faced with an ambiguous record, to call a medical advisor to assist in determining the date of onset. Armstrong v. Commissioner of the Social Security Administration, 160 F.3d 587, 590 (9th Cir. 1998) (quoting DeLorme v. Sullivan, 924 F.2d 841, 848 (9th Cir. 1991)) ("If the `medical evidence is not definite concerning the onset date and medical inferences need to be made, [Social Security Regulation] 83-20 requires the administrative law judge to call upon the services of a medical advisor and to obtain all evidence which is available to make the determination'"). Significantly, defendant did not discuss these cases in her opposition. IT IS THEREFORE ORDERED that this case be remanded to the ALJ with instruction to call a medical expert to determine when claimant became disabled. [ Page 3]

Plaintiff's charge of bias against the ALJ based on delay and on the ALJ's evaluation of the medical evidence lacks merit. An ALJ is presumed to be unbiased, a presumption that can be rebutted by the party asserting bias through "a showing of conflict of interest or some other specific reason for disqualification." Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999) (citing Schweiker v. McClure, 456 U.S. 188, 195-96 (1982)). Plaintiff failed to present any evidence of bias, aside from plaintiff's own assertions that the ALJ treated her unfairly and unduly delayed the proceedings. After reviewing those assertions and the record, I find them inadequate. If anything, the ALJ appears diligently to have approached a lengthy record presenting complex issues. Plaintiff has failed to meet her burden of rebutting the presumption.

Finally, plaintiff challenges the ALJ's decision not to reopen her three earlier applications for benefits made on May 30, 1990, October 24, 1994 and February 26, 1996, on the grounds that plaintiff, who was unrepresented at the time she made the earlier applications, was denied due process because she lacked the mental capacity to appropriately handle her earlier social security claims. See Udd v. Masanari, 245 F.3d 1096, 1099-1100 (9th Cir. 2001) (citing Califano v. Sanders, 430 U.S. 99, 107-09 (1977) (finding that a decision to reopen a prior final benefits decision is not ordinarily subject to judicial review, but that an exception lies where the denial of a petition to reopen is challenged on constitutional grounds, and an allegation that a claimant suffered from a [ Page 4]

mental impairment and was not represented by counsel at the time of the denial of benefits constitutes a colorable constitutional claim)). Without any explanation or showing that the ALJ considered the factors set forth in the regulations, including Social Security Regulation 91-5p to determine whether good cause exists for extending the time to request review, the ALJ twice found no basis under the regulations to reopen plaintiff's earlier applications. AR at 13, 663. Because the record does not reveal the ALJ's reasoning, and does not contain any evidence of plaintiff's mental condition from 1990 through 1996, I am unable to determine whether the ALJ's decision is supported by substantial evidence. Therefore, it is FURTHER ORDERED that the ALJ explain her reasons for her decision not to reopen plaintiff's earlier applications.

20030815

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