Touching a Nerve?: 8th Circuit Finds ALJ’s Comment About Touching A Feminist’s Nerve Didn’t Constitute Reversible Bias

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[A]fter Perkins testified that her daily routine includes watching the Lifetime channel, the ALJ asked, “And what is the subject matter of that? That’s the girl channel.”…Perkins responded, “Women’s channel.”…The ALJ then stated, “All right. I’m glad our [vocational expert] is here by telephone. I didn’t see those dates, but I could have touched a feminist’s nerve there with the girl thing.”

This exchange occurred between Sherry Perkins and an Administrative Law Judge during the ALJ’s consideration of Perkins’ application for disability benefits based on fibromyalgia, hypertension, gastroesophageal reflux disease, chronic obstructive pulmonary disease, depression, and panic attacks. In rejecting Perkins’ appeal alleging that the ALJ’s comments demonstrated reversible bias, the Eighth Circuit in Perkins v. Astrue, 648 F.3d (8th Cir. 2011), concluded that

The ALJ’s statements do not demonstrate bias. Even if the statements were sarcastic, it is well established that “‘expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women sometimes display’ do not establish bias.”…”Rather, [Perkins] was required to 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.'”…Perkins has not made a showing that the ALJ’s statements rise to this level.

Do you agree? What if Perkins’ attorney presented evidence of the ALJ’s lower than average approval rating involving her clients, and especially those clients who are obese women with fibromyalgia and mental impairments?

-Colin Miller

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