IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30373
(Summary Calendar)
GERALD DAVIS,
Plaintiff-Appellant,
versus
KENNETH S. APFEL,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
(99-CV-420)
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October 3, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Gerald Davis appeals from the district
court’s order remanding the case to the Commissioner for failure to
develop the record regarding Davis’s mental retardation fully and
fairly. Davis argues that the district court abused its discretion
in failing to reverse the Commissioner’s decision and order an
award of benefits. Davis also argues that the administrative law
judge (ALJ) was biased, requesting that the case be remanded to a
different ALJ if the district court’s remand order is affirmed.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Contrary to the Commissioner’s argument, Davis may appeal the
district court’s remand order because Davis sought reversal as well
as remand. See Forney v. Apfel, 524 U.S. 266, 269 (1998). We have
reviewed the record and hold that the district court did not abuse
its discretion in ordering the remand pursuant to the fourth
sentence of 42 U.S.C. § 405(g). Under the standard of abuse of
discretion that we apply when reviewing the district court’s
refusal to order that, on remand, this case be heard by a different
ALJ, we refuse to disturb that ruling. Davis has failed to
demonstrate the required high degree of antagonism toward his
representative on the part of the ALJ to make impossible the ALJ’s
rendering of a fair judgment. Accordingly, the judgment of the
district court is in all respects
AFFIRMED.
2