Bunny v. Commissioner of Social Security

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION for 13 Report and Recommendation, as more fully set out. Signed by Honorable David L. Russell on 5/26/15. (jw)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TIMOTHY M. BUNNEY,
Plaintiff,
v.
CAROLYN W. COLVIN, acting
Commissioner Social Security
Administration,
Defendant.

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CIV-14-820-R

ORDER
Plaintiff filed this action seeking review of the decision of the Commissioner denying
his application for disability insurance benefits. Pursuant to 28 U.S.C. § 636(b)(1)(B), the
matter was referred to United States Magistrate Judge Suzanne Mitchell for preliminary
review. On May 1, 2015, Judge Mitchell issued a Report and Recommendation
recommending that the decision of the Commissioner be affirmed. The matter is currently
before the Court on Plaintiff's timely objection to the Report and Recommendation, which
gives rise to the Court's obligation to conduct a de novo review of those portions of the
Report and Recommendation to which Plaintiff has made specific objection. The Court has
conducted its review, and finds as follows.
Plaintiff presents two arguments in support of his objection. He first argues that the
Commissioner erred because not all of the evidence was considered by the administrative law
judge. Specifically, Plaintiff agues that because he submitted a statement from his treating
physician that was not received by the administrative law judge until after the March 22,

2013 unfavorable decision, that remand is required.1 The Appeals Council noted that it had
considered the additional evidence. A.R. p. 1. The Council found that the information
provided by Plaintiff provided no basis for changing the administrative law judge's decision.
A.R. p. 2. Plaintiff argues that the case should be remanded solely because the administrative
law judge did not have the opportunity to consider the March 19, 2013 statement completed
by his treating physician. This, however, is not the requirement. Rather, as noted by Judge
Mitchell, once the evidence is accepted by the Appeals Council it becomes part of the
administrative record. The Appeals Council is not required to provide an extensive analysis
of new evidence submitted by a claimant; it is sufficient for the Appeals Council to generally
state that the new evidence does not warrant further review of the claim. Martinez v.
Barnhart, 444 F.3d 1201, 1207–08 (10th Cir.2006). As such, Plaintiff's argument, which the
Court interprets as arguing solely that remand is required because there was new evidence
not seen by the administrative law judge, lacks merit. Accordingly, the Report and
Recommendation is adopted with regard to Plaintiff's contention that remand is required

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Neither the Commissioner nor the Magistrate Judge read the Plaintiff's Opening Brief as including
an argument that the Commissioner's decisions was not supported by substantial evidence because the new
evidence was accepted by the Appeals Council but not discussed. Rather, both interpreted Plaintiff as arguing
that remand was automatically required by the acceptance of new evidence. "As the ALJ did not review the
Treating Physician's medical source statement remand is required to give Mr. Bunney an opportunity to have
his full medical record reviewed by the fact finder as this probative evidence proves the underlying fact
concerning his disability." Plaintiff's Opening Brief, p. 8. "In this case, due to the fact that the medical source
statement was not seen by the ALJ the proper procedure was not followed." Plaintiff's Opening Brief, p. 10.
Plaintiff did not file a reply brief to clarify his argument, even when faced with the argument by Defendant
that he had "waived the argument that Dr. Hubbard's opinion would have changed the ALJ's decision." Doc.
10, p. 9. The Court similarly does not interpret his objection as extending beyond the argument as framed by
the Defendant and the Magistrate Judge.

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solely because the administrative law judge did not have access to the March 2013 treating
physician evidence.
Plaintiff's second objection to the Report and Recommendation focuses on the
administrative law judge's assessment of his residual functional capacity, specifically as it
relates to Plaintiff's credibility that he cannot work due to pain. The Court has reviewed the
Report and Recommendation and Plaintiff's filings and finds no basis therein for rejecting
the well-reasoned decision of the Magistrate Judge. As such, the Report and
Recommendation is hereby ADOPTED in its entirety, and judgment shall be entered in favor
of the Commissioner.
IT IS SO ORDERED this 26th day of May, 2015.

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