Smith v. Astrue

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION for 19 Report and Recommendation, Having conducted its de novo review of the Report and Recommendation, the Court finds no basis for remanding this matter to the Commissioner. To the extent the Report and Recommendation is consistent with the above, it is adopted. Judgment shall be entered for the Commissioner. Signed by Honorable David L. Russell on 1/7/14. (jw)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HAZEL ANNETTE SMITH,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY
ADMINISTRATION
Defendant.

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Case No. CIV-13-144-R

ORDER
Plaintiff filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of
a decision of the Commissioner denying her application for supplemental security income
benefits. Pursuant to 28 U.S.C. § 636(b)(1)(B), the matter was referred to United States
Magistrate Judge Gary M. Purcell for preliminary review. On December 18,. 2013, Judge
Purcell issued a Report and Recommendation wherein he recommended that the Court affirm
the Commissioner's decision. Plaintiff has filed a timely objection to the Report and
Recommendation, giving rise to the Court's obligation to conduct a de novo review of
Plaintiff's specific objections to the Report and Recommendation.
Plaintiff raises a single issue in this case, whether the administrative law judge erred
in failing to consider certain third-party opinions. Plaintiff argues that the administrative law
judge erred because he failed to indicate the weight allocated to the non-medical testimony
offered by Plaintiff's son and her friend. Citing to cases not included in the briefs filed before

the Magistrate Judge, Plaintiff contends that this case is governed by Blea v Barnhart, 466
F.3d 903, 915 (10th Cir. 2006). In Blea, the court considered the Commissioner's duty to
evaluate third-party opinion evidence, concluding that ?the [administrative law judge] is not
required to make specific written findings of credibility only if 'the written decision reflects
that the [administrative law judge] considered the testimony.'” 466 F.3d at 915 (quoting
Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996).
Contrary to Plaintiff's contention that Blea controls and mandates remand, the court
concludes that remand is not required in this case. First, although the administrative law
judge did not indicated that he specifically considered the opinion of either Plaintiff's son or
her friend, his decision states that he considered all of the record evidence. Tr. 19, 23.
Furthermore, the testimony offered by Plaintiff's son and the evidence submitted by her
friend was largely cumulative of Plaintiff's own testimony.
While the ALJ did not explicitly discuss the testimony of [claimant's wife], we
do not believe this omission is grounds for remand given the nature of
[claimant's wife's] testimony, which was largely cumulative of her husband's
testimony. Further, where, as here, the ALJ's decision states and demonstrates
that he considered all of the evidence, “our general practice, which we see no
reason to depart from here, is to take [the] lower tribunal at its word.” Hackett
v. Barnhart, 395 F.3d 1168, 1173 (10th Cir.2005); see also Clifton v. Chater,
79 F.3d 1007, 1009–10 (10th Cir.1996) (stating that an ALJ is not required to
discuss every piece of evidence so long as the record demonstrates that he
considered all of the evidence).
Davis v. Astrue, 237 Fed.Appx. 339, 342 (10th Cir. June 12, 2007). The Court finds Davis
wholly persuasive under the circumstances herein, and therefore rejects Plaintiff's objection
to the Report and Recommendation.

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Having conducted its de novo review of the Report and Recommendation, the Court
finds no basis for remanding this matter to the Commissioner. To the extent the Report and
Recommendation is consistent with the above, it is adopted. Judgment shall be entered for
the Commissioner.
IT IS SO ORDERED this 7th day of January, 2014.

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