Haseltine v. Astrue, No. 3:2008cv05782 - Document 42 (N.D. Cal. 2009)
Court Description: ORDER DENYING PLAINTIFF'S MOTION TO COMPEL. Signed by Magistrate Judge Bernard Zimmerman on 10/30/2009. (bzsec, COURT STAFF) (Filed on 10/29/2009)
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Haseltine v. Astrue Doc. 42 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 JO ANNE E. HASELTINE, 11 12 13 14 Plaintiff, v. MICHAEL J. ASTRUE, Defendant. ) ) ) ) ) ) ) ) ) ) No. C 08-5782 BZ ORDER DENYING PLAINTIFF’S MOTION TO COMPEL 15 16 Before me is plaintiff’s motion to compel the production 17 “of the complete transcript” of the administrative record. 18 While so styled, what plaintiff actually seeks is: (1) 19 production of any analysis or report with respect to his claim 20 of bias raised below and (2) discovery of voluminous extra- 21 record documents such as the records of 200 of Administrative 22 Law Judge (“ALJ”) Lazuran’s cases. 23 all of these documents to prove that ALJs below were biased. 24 Plaintiff claims to seek This case has been through numerous proceedings since the 25 first disability determination hearing in 2002. After several 26 appeals and remands, plaintiff filed a civil action in this 27 court, and subsequently, moved for summary judgment. 28 December 10, 2007, I granted summary judgment in part, finding On 1 Dockets.Justia.com 1 that there was substantial evidence to support a finding that 2 plaintiff was disabled. 3 to fully develop the record and determine the onset date of 4 plaintiff’s disability. I remanded the matter for defendant (Administrative Transcript “AT” 926.) 5 On February 8, 2008, plaintiff sent a letter to the 6 Appeals Council alleging bias on the part of ALJs Lazuran and 7 Reite and requested an “analyst’s analysis.”1 8 Appeals Council vacated ALJ Lazuran’s decision on the onset 9 date pursuant to the court order. (AT 972.) (AT 932.) The The Appeals 10 Council found the allegations of bias to be unsupported by the 11 record, but nevertheless granted plaintiff a new hearing in 12 front of a different ALJ. (AT 972.) Plaintiff filed the present action on December 30, 2008. 13 14 Plaintiff asserts that the administrative record is missing 15 the “analyst’s analysis” of the allegations of bias on the 16 part of ALJs Lazuran and Reite. 17 Administration’s Hearings, Appeals and Litigation Law Manual 18 (“HALLEX”) section I-3-1-25 requires that “an agency shall 19 make its determination on the allegation [of bias] a part of 20 the administrative record and decision in the case.” The Social Security In Administrative Appeals Judge (“AAJ”) Goldberg’s order 21 22 dated March 28, 2008, AAJ Goldberg stated that plaintiff’s 23 request for the analyst’s report has been forwarded to the 24 Freedom of Information Act (“FOIA”) staff for consideration. 25 (AT 973.) Plaintiff incorrectly interprets this statement as 26 1 27 28 The “analyst’s analysis” that plaintiff refers to is a statement issued by a Social Security Administration analyst determining the validity of any allegations of bias after examining the record and auditing the hearing recording. 2 1 the Appeals Council’s admission that an “analyst’s analysis” 2 exists. 3 unclear although there is not one in the record. 4 duty to review the administrative record and ensure that 5 plaintiff has had a fair hearing. 6 by the analyst should have been included in the administrative 7 record. Whether an analyst’s report was ever created is I have the Any notes or reports made 8 On the other hand, extra-record discovery is not 9 appropriate when the court’s jurisdiction is to review the 10 administrative record only. McCarty v. Barnhart, No. C04-5060 11 MHP (N.D. Cal. May 5, 2005) (order striking discovery). 12 there is no authority in this Circuit for allowing discovery 13 in a civil action under § 405(g), the Third Circuit has 14 allowed discovery in very limited circumstances when there are 15 allegations of bias. 16 occur in the district court when: (1) the alleged bias of the 17 ALJ was discovered post-decision and (2) arose from an 18 extrajudicial source which required further investigation.2 19 Hummel v. Heckler, 736 F.2d 91 (3d Cir. 1984); See also 20 Ventura v. Shalala, 55 F.3d 900, 904 (3d Cir. 1995). 21 a case, discovery in the district court would be proper to 22 allow the plaintiff an opportunity to convince the district 23 court that a remand for the taking of new evidence on bias 24 would be appropriate. While In the Third Circuit, discovery may In such Grant v. Shalala, 989 F.2d 1332, 1338 25 26 27 28 2 Extrajudicial bias refers to a bias that is not derived from the evidence or conduct of the parties during the proceedings. Johnson v. Trueblood, 629 F.2d 287, 291 (3d Cir. 1980). In Hummel, the allegations of bias were based on an extrajudicial source, namely the “Bellmon Reviews.” 3 1 (3d Cir. 1993) (citing Hummel, 736 F.2d at 95). 2 however, is not necessary when the ALJ’s conduct can be 3 evaluated from the hearing transcript or the record. 4 55 F.3d at 904. 5 Discovery, Ventura, Plaintiff has not established she is entitled to the 6 discovery she seeks. Assuming arguendo that Third Circuit law 7 controls, plaintiff has not shown that (1) the basis of her 8 claims of bias against ALJs Lazuran, Reite, and Teilens was 9 discovered after defendant’s decision was made and (2) that 10 the basis stems from an extrajudicial source as in Hummel. 11 the contrary, plaintiff knew the basis for her claims of 12 alleged bias at the agency level, and asserted them to the 13 Appeals Council, which ultimately found the claims 14 unsupported. (AT 591, 972.) 15 plaintiff’s claims appear to be all interjudicial in nature. 16 Accordingly, plaintiff has not satisfied the requirements of 17 Hummel. 18 To Further, the basis for ALJs and other similar quasi-judicial administrative Verduzco v. Apfel, 188 19 officers are presumed to be unbiased. 20 F.3d 1087, 1089 (9th Cir. 1999). 21 presumption by showing a conflict of interest or some other 22 specific reason for disqualification. 23 alone almost never constitute evidence of bias. 24 United States, 510 U.S. 540, 555 (1994). 25 unfavorable rulings are proper grounds for appeal, not 26 allegations of bias. 27 express “impatience, dissatisfaction, annoyance and even 28 anger,” do not amount to a finding of bias. Id. Plaintiff must rebut this Id. Judicial rulings Liteky v. Almost invariably, Judicial remarks, even those that 4 Id. Plaintiff 1 must show that the ALJ’s actions were “so extreme as to 2 display clear inability to render fair judgment.” 3 Massanari, 261 F.3d 853, 858 (9th Cir. 2001). 4 Rollins v. Even if discovery was available in an administrative 5 appeal in this Circuit, plaintiff has not made an adequate 6 showing of bias.3 7 decisions of the ALJs below. 8 makes several allegations of bias against ALJs Lazuran, Reite, 9 and Tielens.4 Instead, plaintiff merely disagrees with In plaintiff’s reply brief, she Plaintiff claims that ALJ Lazuran is biased 10 because she proffered a stipulation to a later disability 11 onset date and later refused to hold another hearing on the 12 issue. 13 error ALJ Lazuran may have committed in failing fully to 14 develop the record or in refusing to hold a hearing does not 15 by itself constitute bias in and of itself. 16 alleges bias on the grounds that ALJ Lazuran failed to provide 17 a speedy decision in two other cases. 18 Lazuran, C02-2139 WHA (Doc. No. 1); Pierce v. Barnhardt, C00- 19 0742 BZ. 20 an untimely hearing in this case or cited any regulations 21 requiring an ALJ to issue a decision within a certain amount On remand the onset date was found to be valid. Any Plaintiff also See Haseltine v. Plaintiff, however, has not made any allegations of 22 3 23 In Coleman v. Barnhart, C06-1912 SI (Doc. No. 28), plaintiff’s counsel made a similar request for extra-record discovery that was denied. 24 4 25 26 27 28 Nowhere is there any explanation as to why this information was not filed in support of plaintiff’s motion so that defendant would have had an opportunity to respond. Raising new factual material in the reply is disfavored and I have attached less weight to it. See Lujan v. National Wildlife Federation, 497 U.S. 871, 894-95 (1990); Judge William W. Schwarzer, et al., Federal Civil Procedure Before Trial, § 12:107 (Rutter Group 2004). 5 1 2 of time. See Coleman v. Barnhart, C06-1912 SI (Doc. No. 28). Plaintiff also claims that ALJs Reite and Tielens are 3 biased because they denied plaintiff’s request for testimony 4 from Malcolm Brodzinzky. 5 Council, Brodzinsky’s testimony was off point and irrelevant. 6 Plaintiff claims that ALJ Reite is biased because he did not 7 respond to plaintiff’s letters and referred to plaintiff’s 8 representative as incompetent. 9 is not evidence of bias. As already addressed by the Appeals Failure to respond to a letter The reference to plaintiff’s 10 representative as inexperienced was in response to the 11 representative’s own assertion that his acceptance of the 12 stipulated onset date was a mistake because he was incompetent 13 and lacked experience at the time the stipulation was entered. 14 Finally, plaintiff claims that ALJ Tielens is biased 15 because he placed plaintiff’s representative under oath and 16 thus, deprived plaintiff of adequate representation. 17 Plaintiff’s representative was placed under oath because he 18 was testifying about material facts at a prior hearing. 19 Plaintiff also had her attorney present. 20 For the foregoing reasons, IT IS HEREBY ORDERED that 21 plaintiff’s motion to compel extra-record discovery is DENIED. 22 IT IS FURTHER ORDERED that by November 20, 2009 defendant 23 shall file a certification stating whether any analyst’s 24 report was ever created. 25 produce it by December 1, 2009. 26 Dated: 27 28 If one does exist, defendant shall October 29, 2009 Bernard Zimmerman United States Magistrate Judge G:\BZALL\-BZCASES\HASELTINE v. ASTRUE\ORDER DENYING P'S MOTION TO COMPEL.wpd 6
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