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Mays v. Colvin

United States Court of Appeals, Tenth Circuit

January 8, 2014

Rebecca L. MAYS, Plaintiff-Appellant,
v.
Carolyn W. COLVIN, Acting Commissioner, Social Security Administration, Defendant-Appellee.

Page 570

[Copyrighted Material Omitted]

Page 571

Submitted on the briefs: [*]

Richmond J. Brownson, Timothy M. White, Tulsa, OK, for Plaintiff-Appellant.

Danny C. Williams, Sr., United States Attorney, Cathryn D. McClanahan, Assistant United States Attorney, Michael McGaughran, Regional Chief Counsel, Region VI, Dianne Mullins Pryor, Special Assistant United States Attorney, Social Security Administration, Office of General Counsel, Region VI, Dallas, TX, for Defendant-Appellee.

Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and BACHARACH, Circuit Judge.

BACHARACH, Circuit Judge.

Ms. Rebecca L. Mays appeals from a district court order affirming the Social Security Administration's denial of her application for disability benefits. We affirm.

I. Background

Ms. Mays applied for benefits, alleging a disability beginning in May 2004.

The assessment began at step one, with the administrative law judge finding that Ms. Mays had not engaged in substantial gainful activity from the alleged onset date to the date that her insurance coverage ended.

At step two of the sequential evaluation process, the administrative law judge found a severe impairment of low back pain.

At step three, the ALJ found that the impairments did not meet or medically equal the regulatory " listings," whether alone or in combination.

In assessing the residual functional capacity at step four, the ALJ found a residual functional capacity that allowed Ms. Mays to perform a full range of sedentary work. In making this finding, the ALJ found that the opinion of Ms. Mays' treating physician, Dr. Chorley, was not consistent with the objective medical evidence. The ALJ also found at step four that Ms. Mays could not perform her past relevant work.

But the judge determined at step five that jobs existed in the national economy that Ms. Mays could perform. Thus, the ALJ found that Ms. Mays was not disabled.

The Appeals Council denied her request for review, and the district court affirmed the Social Security Administration's decision.

II. The Claims

Ms. Mays raises two issues on appeal. First, she claims that the Social Security Administration failed to provide a complete administrative record. Second, she contends that the ALJ failed to properly analyze the medical source evidence.

III. The Standard of Review

"We review the Commissioner's decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied."

Page 572

Robinson v. Barnhart, 366 F.3d 1078, 1080 (10th Cir.2004) (internal quotation marks omitted).

IV. Claims Regarding the Incomplete Administrative Record

Ms. Mays' first claim relates to Dr. Chorley's assessment of residual functional capacity. Dr. Chorley changed this assessment, but the new version was mistakenly omitted in the eventual administrative record. Ms. Mays contends that the omission entailed a denial of due process and left the eventual findings without substantial evidence. We reject these contentions.

A. The Error in the Administrative Record

During the hearing, Ms. Mays asked if she could submit a new version of the doctor's written report. Ms. Mays represented that the two reports were identical with one exception. In the amended report, Dr. Chorley downgraded Ms. Mays' ability to sit, stand, and walk.

On page 1 of his original report, Dr. Chorley had opined that Ms. Mays could:

• sit for 3 hours, stand for 2 hours, and walk for 1 hour at a time,
• sit or stand for a total of 3 hours, and
• walk for a total of 2 hours during an 8-hour work day.

In the amended report, Dr. Chorley stated that Ms. Mays could stand and walk for 10 to 30 minutes at a time; sit and stand for a total of 2 hours in an 8-hour work day; and walk for a total of 1 hour.

The ALJ stated that page 1 of Dr. Chorley's original report was withdrawn and the amended page 1 was substituted in its place. The amended report was handed to the vocational expert, who was asked to assume the limitations stated there. The vocational expert testified that according to the amended report, Ms. Mays could stand and walk for 10 to 30 minutes at a time; sit and stand for a total of 2 hours in an 8-hour work day; and walk for a total of 1 hour. The expert added that there would be no competitive work available to a person with the physical abilities stated in Dr. Chorley's amended report.

The amended page 1 of the report was not ultimately incorporated into the administrative record. Thus, the record contains only the original version of Dr. Chorley's report.

B. The Due-Process Claim

Ms. Mays contends that the error in the administrative record resulted in a deprivation of due process because the ALJ and the Appeals Council could not review an exhibit missing from the record. Without the new page, the ALJ and Appeals Council could review only the version of Dr. Chorley's report that had been ...


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