Judge Declines Request for New ALJ

March 1, 2008

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Ann Biddle, Esq., Paul M. Ryther, Esq.

What does it take to convince a U.S. District Court judge to order Social Security to reassign a claim to a different Administrative Law Judge (ALJ) on remand?  Clearly more than what was presented to Judge Charles Siragusa of the Western District of New York in a recent case in which he refused to issue such an order.
 
In Smith v. Astrue, 2009 WL 185990 (W.D.N.Y. January 26, 2009), both parties agreed that remand for further proceedings was appropriate.  The plaintiff, however, argued that based on the errors in the ALJ’s decision, the ALJ might not apply the appropriate legal standards on remand.  Plaintiff’s counsel also alleged that the ALJ had upset the claimant at the hearing.
 
The Court found that there was no clear indication that the ALJ would not apply the appropriate standards on remand, and presumed that she would.  He noted that the plaintiff did not allege that the ALJ harbored any personal hostility toward her.  He also found, upon reviewing the transcript of the hearing, that the ALJ was courteous and patient toward the plaintiff, whose unreasonable outbursts may have been attributable to cognitive or psychological problems.
 
The good news?  The court acknowledged that it is undisputed that a court can direct a case be reassigned in certain circumstances.  It cited Sutherland v. Barnhart, 322 F.Supp.2d 282, 292 (E.D.N.Y. 2004) for the factors to be considered: (1) a clear indication that the ALJ will not apply the appropriate legal standard on remand; (2) a clearly manifested bias or inappropriate hostility toward any party; (3) a clearly apparent refusal to consider portions of the testimony or evidence favorable to a party, due to apparent hostility to that party; (4) a refusal to weigh or consider evidence with impartiality, due to apparent hostility to any party.  In Sutherland, the Court did find that the ALJ’s behavior, including his refusal to allow the plaintiff’s attorney to question the medical expert and his apparent sarcasm in the decision, warranted a new ALJ.
 
The plaintiff was represented by Charles Binder and Jeannine LaPlace of Binder & Binder.