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.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Louisiana (99-CV-420) - - - - - - - - - - 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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,

(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

(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.

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