1 The parties have consented to the exercise of jurisdiction by the undersigned, pursuant

to 28 U.S.C. § 636(c), for all proceedings in this Court, including disposition of this motion. (Doc. 19

(“In accordance with provisions of 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties in this case

consent to have a United States magistrate judge conduct any and all proceedings in this case . . . and

order the entry of a final judgment, and conduct all post-judgment proceedings.”))

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROBERT KEVIN LEE, :

Plaintiff, :

vs. CA 04-0765-C1

:

JO ANNE B. BARNHART,

Commissioner of Social Security, :

Defendant.

MEMORANDUM OPINION AND ORDER

The Commissioner of Social Security has moved for entry of judgment

under sentence four of 42 U.S.C. § 405(g) with remand of this cause for further

administrative proceedings. (Doc. 22)

On remand by the Court, the Appeals Council will vacate the

August 2003, administrative decision and direct the ALJ to

conduct a hearing in accordance with 20 C.F.R. §§ 404.944,

416.1429 (2005), in which Plaintiff has the opportunity to

testify. The ALJ will further evaluate the issue of Plaintiff’s

performance of substantial gainful activity after May 2001, as

well as continue the sequential evaluation process beyond step

one for the period beginning with the cessation of substantial

gainful activity.

Case 1:04-cv-00765-C Document 24 Filed 09/26/05 Page 1 of 7
2 Therefore, plaintiff too desires a remand but requests that this Court, when ordering

remand, instruct the Appeals Council to assign the case to a different ALJ. (See id. at 2)

2

(Id. at 1)

The motion to remand reveals that counsel for the defendant, Patricia N.

Beyer, Esquire, notified plaintiff’s counsel, G. Wayne Ashbee, Esquire, of the

contents of the motion and was advised by plaintiff’s counsel that the plaintiff

would “consent to this motion only if the case could be reassigned to a different

ALJ.” (Id. at 2) The defendant follows-up this comment with the statement that

“it is agency policy that upon remand that the case be assigned to the same ALJ.”

(Id.) Plaintiff filed a response to the defendant’s motion on September 21,

2005, and therein states the following: “Robert Kevin Lee[] asserts that he does

not believe that he can receive an unbiased and impartial hearing before the same

Administrative Law Judge that previously heard his claim in this matter. The

basis for this request is set forth in Plaintiff’s Proposed Report and

Recommendation which details the ALJ’s refusal to go beyond step one of the

sequential evaluation process.” (Doc. 23, at 1)2

There can be no doubt but that, under appropriate circumstances, in

remanding a case, this Court can order that the new hearing be held before a

different ALJ. Miles v. Chater, 84 F.3d 1397, 1401 (11th Cir. 1996) (“We []

hold that Miles is entitled to an unbiased reconsideration of her application for

Case 1:04-cv-00765-C Document 24 Filed 09/26/05 Page 2 of 7
3

benefits before a different ALJ. . . . [W]e REVERSE the judgment of the district

court and REMAND the case to that court with instructions to order a new

hearing before another ALJ.”); see also Cooper v. Barnhart, 345 F.Supp.2d

1309, 1311 (S.D.Ala. 2004) (This court finds that upon remand, plaintiff is

entitled to an unbiased reconsideration of his claim for benefits before a

different ALJ. Accordingly . . . this action be and is hereby REMANDED

pursuant to sentence four of 42 U.S.C. § 405(g), to the Social Security

Administration for further proceedings consistent with the Commissioner’s

Motion to Remand and the opinion of this court, with instructions to the Appeals

Council to reassign this case to a different ALJ.”). In Miles, the Eleventh Circuit

ordered a new hearing before another ALJ against an administrative backdrop in

which plaintiff’s attorney, in appealing the ALJ’s adverse decision to the Appeals

Council, asserted an obvious bias demonstrated by the ALJ. 84 F.3d at 1400-

1401.

The regulations governing Title II dictate that “[a]n administrative

law judge shall not conduct a hearing if he or she is prejudiced or

partial with respect to any party or has any interest in the matter

pending for decision.” 20 C.F.R. § 404.940.

When a claimant objects to the assignment of a particular

ALJ to his or her case, he or she must notify the ALJ at the

earliest opportunity. Id. If the ALJ withdraws, the Associate

Commissioner for Hearings and Appeals or his delegate will

appoint another ALJ to conduct the hearing. Id. If the ALJ

declines to recuse himself, the claimant may seek

Case 1:04-cv-00765-C Document 24 Filed 09/26/05 Page 3 of 7
4

reconsideration after the hearing by raising the issue before the

Appeals Council. Id.

In the present case, the objectionable comments of the

ALJ were made in the opinion issued after the hearing.

Consequently, Miles’ earliest opportunity to object was before

the Appeals Council. In the brief she submitted to the Appeals

Council, she asserted that the ALJ’s statements demonstrated “an

obvious bias either against the claimant’s evidence, the claimant

herself, or the claimant’s attorney.” (Administrative Record at 9).

The Appeals Council failed to address this charge in denying her

request for review.

Id. Similarly, in Cooper, supra, one of the senior district judges from this

Court ordered reconsideration of the plaintiff’s claim for benefits by a different

ALJ upon noting that plaintiff’s counsel placed the Appeals Council on notice

that “‘[t]here was a pattern of hostile, antagonistic questioning of Mr. Cooper by

the ALJ,’” and upon confirming counsel’s comments to the Appeals Council, by

reviewing the hearing transcript, and finding “the ALJ’s demeanor toward

plaintiff unnecessarily offensive and biased.” 345 F.Supp.2d at 1311.

The record in this case contains no complaints of bias by plaintiff’s

counsel to the Appeals Council nor can this Court read any obvious bias into the

ALJ’s action in cutting short the March 20, 2002 hearing on the basis that an

onset date of disability was not apparent on the record (see Tr. 467-471; id. at

470-471 (“We haven’t established an onset, yet. I have doctor’s notes in here

that refute the testimony that’s before me. And it’s in evidence. I have two

Case 1:04-cv-00765-C Document 24 Filed 09/26/05 Page 4 of 7
3

In addition, plaintiff’s proposed report and recommendation contains no bias charge.

(See Doc. 21) The perceived bias charge comes only now in plaintiff’s response to the motion to

remand. (Doc. 23)

5

pieces of evidence and I have one person testifying, under oath, that he doesn’t

have a recollection. I’m not satisfied. This matter will be continued. The hearing

is closed.”)). To be sure, the record contains no supplemental hearing by the

ALJ, though one was scheduled for January 8, 2003 (Tr. 48-51). However, the

record is silent about why supplemental hearing testimony was not taken,

particularly since it appears that counsel was present for the hearing. (See Tr.

329, 340 & 342 (SSA notations that exhibits 24F-26F were received into

evidence during the hearing)) Nevertheless, the reason no supplemental hearing

testimony was taken on January 8, 2003 matters not for purposes of the present

motion to remand since plaintiff’s counsel made no argument to the Appeals

Council that the ALJ’s conduct during the administrative hearing that was held

reflects bias or that the ALJ did not take supplemental testimony on January 8,

2003 because of obvious bias. (See Tr. 13) In fact, plaintiff’s counsel only

stated the following on appeal to the Appeals Council: “On behalf of my client

we respectfully disagree with the action taken by the Administrative Law Judge

on the above claim and request a review of such action by the Appeals Council

of the Office of Hearings and Appeals.” (Id.)3 Accordingly, the Court finds the

Case 1:04-cv-00765-C Document 24 Filed 09/26/05 Page 5 of 7
4 Plaintiff has simply offered nothing at this stage in the proceedings to overcome the

general presumption that an ALJ is unbiased. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.

2001) (citation omitted); see also Chamberlain v. Barnhart, 2002 WL 32341771, *3 (E.D.Pa.

2002) (“Generally, an ALJ is presumed to be unbiased, but this presumption can be rebutted by a

specific showing of cause for disqualification.”). Plaintiff, however, is free on remand to present a

reassignment request to the ALJ, as well as with the Appeals Council after the hearing should the ALJ

deny the request. See 20 C.F.R. § 404.940 (“If you object to the administrative law judge who will

conduct the hearing, you must notify the administrative law judge at your earliest opportunity. The

administrative law judge shall consider your objections and shall decide whether to proceed with the

hearing or withdraw. . . . If the administrative law judge does not withdraw, you may, after the hearing,

present your objections to the Appeals Council as reasons why the hearing decision should be revised

or a new hearing held before another administrative law judge.”).

5 There is no question but that in this case a remand for further proceedings is the only

possible favorable disposition for the plaintiff. In other words, this case is not one in which this Court

could order the award of benefits on remand.

6

circumstances in this case distinguishable from both Miles and Cooper and will

not order that the remand proceedings in this case be conducted before another

ALJ.4

The plain language of sentence four of 42 U.S.C. § 405(g) empowers this

Court “to enter, upon the pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the Commissioner of Social

Security, with or without remanding the cause for a rehearing.” It is clear to the

Court that this case need be reversed and remanded to the Commissioner of

Social Security for further proceedings in accordance with the motion to

remand filed by the defendant5and, therefore, the Court reverses and remands

this case for further proceedings pursuant to sentence four of § 405(g). See

Case 1:04-cv-00765-C Document 24 Filed 09/26/05 Page 6 of 7
6 Oral argument in this case, presently scheduled for September 27, 2005 (Doc. 17), is

CANCELED.

7

Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991).

The remand pursuant to sentence four of § 405(g) makes the plaintiff a

prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. §

2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239

(1993), and terminates this Court’s jurisdiction over this matter.6

DONE this the 23rd day of September, 2005.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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