White v. Commissioner of Social Security

          ORDER ADOPTING 3/8/2019 REPORT AND RECOMMENDATION

          SEAN F. COX, UNITED STATES DISTRICT JUDGE

         Plaintiff filed this action seeking judicial review of Defendant Commissioner of Social Security's unfavorable decision denying his claim for Title II disability insurance benefits. The matter was referred to Magistrate Judge Patricia T. Morris for determination of all non-dispositive motions pursuant to 28 U.S.C. § 636(b)(1) and a Report and Recommendation pursuant to § 636(b)(1)(B) and (C). Thereafter, both parties moved for a remand, agreeing that the administrative law judge (“ALJ”) had failed to fully address Plaintiff's post-traumatic stress disorder (“PTSD”). The sole point of dispute between the parties' motions was whether a different ALJ should be assigned to the case on remand due to the present ALJ's alleged bias.

         On March 8, 2019, Judge Morris issued a Report and Recommendation (“R&R”) (ECF No. 14) wherein she recommends that the Court (1) grant Defendant's motion (and Plaintiff's motion to the extent it seeks remand rather than outright reversal and an award of benefits); (2) vacate the Commissioner's final decision denying benefits; and (3) remand the case to the Commissioner under “sentence four” of 42 U.S.C. § 405(g) without ordering that a new ALJ handle the case.

         Pursuant to Fed.R.Civ.P. 72(b), a party objecting to the recommended disposition of a matter by a Magistrate Judge must file objections to the R&R within fourteen (14) days after being served with a copy of the R&R. “The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made.” Id.

         On March 22, 2019, Plaintiff filed timely objections to the R&R. (ECF No. 15). Defendant filed a response to those objections on March 28, 2019. (ECF No. 16).

         Plaintiff's only objection is to Judge Morris's conclusion that the Court should not grant his request for a new ALJ. Plaintiff is a former Marine, who was present during the 1983 bombing of the Marines barracks in Beirut. During the hearing with the ALJ, the following exchange occurred, which forms the basis of the alleged bias:

ALJ You're diagnosed with PSTD [sic]. What are you PSTD [sic] symptoms?

Plaintiff Nigtmares, vision, reliving, regrets.

ALJ What are you reliving?

Plaintiff Well now that I've come to realize that these problems I had of these people that I lost, ultimately you have to relive this. You have to find some kind of solution, some kind of happy medium. Although I don't think you can ever resolve it, but I know when I lost 243 marines and service men [in Beirut], I felt shame and guilt. I could've done more. Why wasn't I doing more? I had friends even after the fact.

ALJ Were you in the dorm that was bombed?

Plaintiff No, Sir, I was guarding just past the dorm. We weren't even allowed to load our rifles when we were there, and if that's all the government felt about us, well I have trouble with that too and here it is 35 years later, no one even acknowledges Beirut. You don't hear nothing about it. There's nothing in the history books that documents - -

ALJ Well we got a lot of water under the dam ...