Mays v. Social Security Administration, No. 4:2010cv00506 - Document 20 (N.D. Okla. 2011)
Court Description: OPINION AND ORDER by Magistrate Judge Frank H McCarthy ( Social Security Opening Brief due by 4/15/2011, Social Security Response Brief due by 6/15/2011, Social Security Reply Brief due by 6/29/2011); setting/resetting social security case deadline(s): ; denying 17 Motion to Remand (jcm, Dpty Clk)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA REBECCA L. MAYS, Plaintiff, vs. Case No. 10-CV-506-FHM MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant. OPINION AND ORDER Plaintiff seeks an order remanding this case for a de novo administrative proceeding to correct the record. Plaintiff asserts that the first page of Exhibit 8F in the administrative record is incorrect. At the administrative hearing counsel advised the Administrative Law Judge (ALJ) that Dr. Chorley, the author of Exhibit 8F, had changed the information on the first page. The ALJ agreed to allow Plaintiff to submit the amended page. However, the amended page is not contained in the record before the court. Exhibit 8F is an assessment of Plaintiff s residual functional capacity to do workrelated activities. The amended page shows far greater restrictions than the page presently in the record. Plaintiff argues that the amended page is material because it creates a reasonable probability of a different decision by the Commissioner. [Dkt. 17, p. 2]. Regardless of the level of restriction indicated on the first page of the exhibit, in the narrative portion of the exhibit that is contained in the record Dr. Chorley stated that Plaintiff is unable to maintain a position of comfort for more than 10 minutes, and he expects her to be 100% disabled until definitive surgical intervention. [Dkt. 10-8, p. 33]. The ALJ rejected Dr. Chorley s opinion on the basis that the opinion is not consistent with the objective medical evidence of record. [Dkt. 10-2, p. 17]. Since the ALJ rejected as unsupported by medical evidence Dr. Chorley s opinion which shows Plaintiff is less limited than the amended page shows, the court finds that the amended page is not material and would not have a reasonable likelihood of changing the ALJ s decision. Therefore there is no basis for granting Plaintiff s request for a remand under sentence four of 42 U.S.C. ยง 405(g). Plaintiff s Motion to Remand [Dkt. 17] is DENIED. The parties shall adhere to the following schedule. Plaintiff s opening brief is due on or before April 15, 2011. Defendant shall file his response brief on or before June 15, 2011. Plaintiff may file a reply brief on or before June 29, 2011. SO ORDERED this 24th day of March, 2011. 2
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