Ackerman v. Social Security Administration

Filing 25

OPINION & ORDER by Judge Frank H. Seay denying 23 Motion to Alter Order/Judgment. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DINA F. ACKERMAN,
Plaintiff,
v.
CAROLYN W. COLVIN1, Commissioner
Social Security Administration
Defendant.

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No. CIV-14-22-FHS-KEW

OPINION AND ORDER

Before the court for its consideration is the Defendant’s
Motion to Alter or Amend Judgment Pursuant to Fed. R. Civ. P. 59
(E) (Doc. 23). In this motion, Defendant requests this court to
alter or

amend

proceedings.

its

judgment

remanding this

case

for

further

The court rules as follows on the motion.

On March 16, 2015, a United States Magistrate Judge for
this district issued a Report and Recommendation that the Acting
Commissioner’s final administrative decision that Plaintiff is
not disabled within the meaning of the Social Security Act be

1

The Court has been informed by Defendant that on February
14, 2013, Carolyn W. Colvin became the Acting Commissioner of
Social Security. Pursuant to Rule 25 (d) of the Federal Rules of
Civil Procedure, Carolyn W. Colvin is automatically substituted
for Michael J. Astrue as the defendant in this action. Thus,
this suit will proceed with this substitution in effect. See 42
U.S.C. Sec. 405 (g) (“Any action instituted in accordance with
this subsection shall survive notwithstanding any change in the
person occupying the office of Commissioner of Social Security or
any vacancy in such office.”)
1

affirmed.

On March 27, 2015, Plaintiff filed a timely objection

to this Report and Recommendation. On March 30, 2015, this Court
issued an order overruling the Report and Recommendation ordering
the case be reversed and remanded to the Commissioner.2

In the

order the court stated that it was remanding this case “for
proceedings regarding the issue of Plaintiff’s back pain being
identified as a severe impairment but not mentioned again after
Step 2.”

In the motion, Defendant argues this decision remanding this
case is premised on a clear error that should be corrected.
Defendant contends that “the Court should amend its order and
affirm

the

ALJ’s

reasonable

Plaintiff is not disabled.”

and

well-supported

decision

that

Defendant argues that the ALJ did

properly consider Plaintiff’s back pain at all stages of his
analysis.

Specifically, Defendant points out that the ALJ found

Plaintiff’s claims regarding limitations caused by her back pain
were not fully credible.

Also, Defendant notes that the ALJ

discussed Plaintiff’s back pain and found certain limitations.
As

a

result,

the

ALJ’s

decision

based

on

the

evidence

that

Plaintiff “was limited to medium exertional work as a result of
her medically determinable impairments (including back pain)” was
proper.

2

In the Motion to Alter or Amend Judgment the Defendant
notes that the Court’s entry of the March 30, 2015 order
remanding this case to the ALJ was premature. As a result,
Defendant did not have adequate time to respond to Plaintiff’s
Objection to the Report and Recommendations. However, by filling
this motion, Defendant has clearly stated its objection to the
arguments made by Plaintiff.

2

Plaintiff responds to the motion asking this court not to
alter or amend the judgment.

Plaintiff argues that a severe

impairment at step 2 cannot simply disappear at steps 4 and 5 of
the sequential evaluation process.

Plaintiff argues: that “there

was absolutely no limitation for stooping resulting from the
ALJ’s finding of low back pain being a severe impairment, and no
explanation for why a limitation in this area was not considered.
Neither the ALJ or the Magistrate Judge explains how a severe
impairment at Step 2 can result in no limitation at steps 4 and 5
of the sequential evaluation process.”

The court denies Defendant’s Motion to Alter or Amend
Judgment Pursuant to Federal Rule of Civil Procedure 59 (E) (Doc.
23).

The

court

remands

this

action

to

the

Defendant

to

specifically outline how a severe impairment such as back pain at
Step 2 can result in no limitations at Steps 4 and 5 of the
evaluation process. Specifically, the ALJ needs to address the
Plaintiff’s limitations.

It is so ordered this 19th day of May, 2015.

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