Ash v. Commissioner of Social Security

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATION 23 of Magistrate Judge Gary M. Purcell...the court affirms the decision of the Commissioner. Signed by Honorable Joe Heaton on 7/22/2016. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

JAMIE L. ASH,
Plaintiff,
NO. CIV-15-1114-HE

vs.

CAROLYN W. COLVIN,
Acting Commissioner of Social
Security Administration,
Defendant.
ORDER

Plaintiff Jamie L. Ash filed this action seeking judicial review of the final decision

ofdefendant Acting Commissioner ofthe Social Security Administration ("Commissioner"),
denying her application for disability insurance and supplemental security income benefits.
Consistent with 28 U.S.C. § 636(b)(1)(B), the case was referred to Magistrate Judge Gary
M. Purcell, who recommends that the Commissioner's decision be affirmed.

Plaintiff filed her application for disability benefits in January 2013, alleging she
became disabled on August 18, 2010. After an Administrative Law Judge ("ALJ") found

that plaintiff was not disabled, the Appeals Council denied plaintiffs request for review.
The ALJ's decision then became the final decision of the Commissioner.

Plaintiff reurges in her objection all the claimed errors she raised in her appeal.
Initially she challenges the magistrate judge's conclusion that the ALJ fixlfilledhis obligation

to develop the record. At the hearing held by the ALJ, plaintiffs attorney stated during his
closing argument that, when he was reviewing the administrative record (the"CD"), he did

not see plaintiffs high school records which his computer indicated he had filed.
Administrative Record ("TR") at 73. The ALJ confirmed the documents were not in the
record and asked counsel if he wanted to add them. When he stated he did, the ALJ said he

would be willing to consider the documents and would leave the record open for a week.
TR. at 74-75. Counsel then stated the missing records showed that plaintiff had an IQ score
of69in2001. Id. at 75.

Plaintiffclaims the magistrate judge erred by concluding that the "ALJ took adequate

steps to develop the record by allowing Plaintiffs counsel to submit further evidence
following the hearing." Doc. #23, p. 8. The court agrees with the magistrate judge that, in
these circumstances, based on the verbal assurance of plaintiffs attorney that plaintiffs
school records would be submitted after the hearing, the ALJ could properly rely on

plaintiffs attorney to submit any additional evidence plaintiff wanted the ALJ to consider
in support of her application.

The court also agrees with the magistrate judge's analysis ofthe other errors plaintiff
asserts the ALJ made.

The ALJ did not err by failing to refer in his decision to the

observations of the agency employee who interviewed plaintiff in January 2013, in his

analysis of Dr. Morgan's medical opinion,' or by determining at step five that plaintiffwas
not disabled.

^Plaintiffstates that, while the magistratejudge referred to Doval v. Barnhart. 331F. 3d 758
(10th Cir. 2003), he "cited an incorrect legal standard. " Doc. #24, p. 6. Plaintiffmisread the
Report and Recommendation. See Doc. #23, p. 11.

Accordingly, having conducted a de novo review, the court adopts Magistrate Judge
Purcell's Report and Recommendation. The Commissioner's decision is AFFIRMED.
IT IS SO ORDERED.
Dated this

3l3i^day of *50^
day of

,2016.

lEATON

U. S. DISTRICT JUDGE