Kenneth Gardner v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 17, 2022
• Docket: 19-55044
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KENNETH MARTIN GARDNER, No. 19-55044

Plaintiff-Appellant, D.C. No. 3:16-cv-02940-JAH-WVG v.

KILOLO KIJAKAZI, Acting Commissioner MEMORANDUM* of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding

Submitted May 12, 2022** Pasadena, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and AMON,*** District Judge

Kenneth Martin Gardner appeals pro se the district court’s affirmance of the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Carol Bagley Amon, United States District Judge for the Eastern District of New York, sitting by designation. Page 2 of 5

Commissioner of Social Security’s denial of his application for Disability

Insurance Benefits under Title II of the Social Security Act. We have jurisdiction

under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and we affirm.

1. The district court did not abuse its discretion by rejecting Gardner’s

argument that the ALJ was biased against him based on the statistics and

information provided on a third-party website. See Bunnell v. Barnhart, 336 F.3d

1112, 1114-15 (9th Cir. 2003) (setting forth the standard of review and explaining

that to disqualify an ALJ, a claimant must show actual bias); Verduzco v. Apfel,

188 F.3d 1087, 1089 (9th Cir. 1999) (noting that “ALJs . . . are presumed to be

unbiased,” and that the party asserting bias has the burden of rebutting this

presumption by showing some “specific reason for disqualification” (quoting

Schweiker v. McClure, 456 U.S. 188, 195 (1982))). Setting aside significant issues

with respect to the reliability and probative force of the information provided on

the website, the statistics Gardner relies on do not support his contention that the

ALJ’s denial rates in the year when Gardner’s case was decided were unreasonably

high as compared to the national average. Moreover, as the district court pointed

out, neither Gardner nor the website explained how the cases underlying the

statistics were selected, whether they concerned claimants with post-traumatic

stress disorder, or how many of the ALJ’s decisions were overturned. Gardner’s

claim of bias based on other claimants’ reviews of the ALJ posted on the website is Page 3 of 5

also not persuasive. The website contains mixed reviews for the ALJ, with five

negative and four positive reviews. And even if the reviews were all negative, the

existence of negative reviews, purportedly left by rejected claimants, does not by

itself establish categorical bias against individuals with post-traumatic stress

disorder. Thus, the district court did not abuse its discretion by rejecting Gardner’s

claim of bias. See Bunnell, 336 F.3d at 1114-15; Verduzco, 188 F.3d at 1089.

2. Gardner’s second basis for contending that the ALJ was biased—the

ALJ’s negative comments at the hearing—is similarly meritless. To demonstrate

bias, a claimant must show that “the ALJ’s behavior, in the context of the whole

case, was ‘so extreme as to display clear inability to render fair judgment.’”

Rollins v. Massanari, 261 F.3d 853, 858 (9th Cir. 2001) (quoting Liteky v. United

States, 510 U.S. 540, 551 (1994)). The ALJ’s comments do not meet this standard,

and the district court did not abuse its discretion by rejecting Gardner’s bias

argument.

3. We also reject Gardner’s arguments that the ALJ erred in finding at Step

Five that Gardner could perform certain unskilled work. Gardner first argues that

it was not “reasonable” for the ALJ to find that Gardner, who had a prior career as

a salesperson, would be suitable as a cleaning person merely because that is “a job

that was substantially below [his] former salary level.” This argument is legally

incorrect. See 20 C.F.R. § 404.1505(a) (defining “disability” as not only the Page 4 of 5

inability to perform “past relevant work,” but the inability to perform “any other

substantial gainful work that exists in the national economy”). Gardner also argues

that due to his limited ability to interact with coworkers and the public, he could

not perform the job of cleaner. This argument also fails. The ALJ’s reliance on

the Vocational Expert’s testimony was supported by substantial evidence, and the

ALJ found that the Vocational Expert’s testimony was consistent with the

information contained in the Dictionary of Occupational Titles (“DOT”). See

Pinto v. Massanari, 249 F.3d 840, 845-46 (9th Cir. 2001) (noting that the DOT is

usually the “the best source for how a job is generally performed”). Moreover,

Gardner does not challenge two additional occupations the Vocational Expert and

ALJ identified, and therefore, concedes the issue. See 20 C.F.R. § 404.1566(b)

(“Work exists in the national economy when there is a significant number of jobs

(in one or more occupations) having requirements which you are able to meet with

your physical or mental abilities and vocational qualifications.”)

4. Finally, the district court did not abuse its discretion by denying Gardner’s

request for oral argument. See Fed. R. Civ. P. 78(b) (“By rule or order, the court

may provide for submitting and determining motions on briefs, without oral

hearings.”); Morrow v. Topping, 437 F.2d 1155, 1156-57 (9th Cir. 1971) (per

curiam) (finding no due process violation where the district court dismissed the

plaintiff’s action without oral argument). Page 5 of 5

AFFIRMED.