Ham v. Social Security Administration

Filing 16

ORDER by Judge Ronald A. White : Affirming and adopting 14 the Report and Recommendation which reverses and remands the decision of the ALJ. (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
CHERYL ALICE HAM,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Administration,
Defendant.

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) Case No. CIV-15-023-RAW-KEW
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ORDER REMANDING CASE FOR FURTHER PROCEEDINGS
On March 8, 2016, Magistrate Judge West entered a Report and Recommendation in
the above-referenced case, recommending that this court reverse the Commissioner’s
decision upholding on appeal the findings of the Administrative Law Judge (“ALJ”), denying
benefits to plaintiff. Defendant has filed an objection to the Report and Recommendation,
which the court has considered.
Claimant has several “severe impairments” at step two of the evaluation process,* and
the ALJ found that claimant’s fibromyalgia was one of those. The Magistrate Judge,
however, found that the ALJ should have addressed fibromyalgia as a separate condition at
step five in evaluating claimant’s functional limitations.

Defendant argues this is

unnecessary. Fibromyalgia is something of a “wild card” in these cases. For one thing, it is
not diagnosed through objective findings. See Gilbert v. Astrue, 231 Fed.Appx. 778, 782-85

*

See Report and Recommendation (#14) at 2 & n.1.

(10th Cir.2007). It therefore “presents a conundrum for insurers and courts evaluating
disability claims.” Welch v. UNUM Life Ins. Co. of Am., 382 F.3d 1078, 1087 (10 th
Cir.2004). This court will affirm the Magistrate Judge’s resolution. See also Boston v.
Astrue, 2011 WL 4914759 at *9 (S.D.Ohio 2011)(“[I]t was erroneous for the ALJ to
determine fibromyalgia is a severe impairment which significantly limits Plaintiff’s ability
to perform basic work activities and then fail to evaluate or consider any functional
limitations associated with fibromyalgia.”).
Upon full consideration of the entire record and the issues herein, this court finds that
the Magistrate Judge’s findings are supported by substantial evidence and the prevailing legal
authority. Accordingly, the Report and Recommendation of the United States Magistrate
Judge is hereby AFFIRMED and ADOPTED as this court’s Findings and Order. The
decision of the Secretary is reversed and this case is remanded to Defendant pursuant to the
fourth sentence of 42 U.S.C. §405(g) for further administrative proceedings.
ORDERED THIS 30th DAY OF MARCH, 2016.

Dated this 30th day of March, 2016.

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