Warner v. Social Security Administration

Filing 30

OPINION AND ORDER by Judge John E Dowdell The Commissioner's Objection (Doc. 28) is overruled, the Report and Recommendation (Doc. 27) is hereby accepted, and the Commissioner's decision denying disability benefits to plaintiff is reversed and remanded in accordance with this Opinion and Order. ; remanding case (terminates case) ; accepting 27 Report and Recommendation (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
L. ANNETTE WARNER,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

Case No. 13-CV-277-JED-TLW

OPINION AND ORDER
Before the Court is the Report and Recommendation (“R&R”) of United States
Magistrate Judge T. Lane Wilson (Doc. 27) and the defendant’s Objection (Doc. 28) to the R&R.
In the R&R, Judge Wilson recommends that the decision of the Commissioner of the Social
Security Administration (“Commissioner”) denying disability benefits to plaintiff be reversed
and remanded for further proceedings.
The Court must determine de novo any part of the R&R that has been properly objected
to, and “may accept, reject, or modify the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). The Court
has conducted a de novo review, fully considered the limited issues raised in the Commissioner’s
Objection, and determined that the Objection should be denied and the R&R should be accepted
in full.
In the R&R, Judge Wilson recommended that the Commissioner’s decision be reversed
and remanded for further proceedings. (Doc. 27 at 12). In making that recommendation, Judge
Wilson noted that the Administrative Law Judge (ALJ) found that plaintiff had “medically
determinable mental impairments of bipolar disorder, panic disorder, and personality disorder

with histrionic personality traits,” but that those impairments were “nonsevere.” (Id. at 2, citing
Record at 21 [Doc. 13-2 at 22]). In determining that those impairments were nonsevere, the ALJ
relied on a report of a mental status examination by Dr. Dennis Rawlings, but the ALJ “never
mention[ed] Dr. Rawlings’ recommendation that plaintiff undergo further mental testing.” (Id. at
5-7; see Record at 478 [Doc. 13-7 at 224]).
Applying Hawkins v. Chater, 113 F.3d 1162 (10th Cir. 1997), Judge Wilson noted that an
ALJ has “broad latitude” in determining whether to order consultative examinations, but that a
consultative examination must be ordered “‘where there is a direct conflict in the medical
evidence requiring resolution,’ ‘where the medical evidence in the record is inconclusive,’ or
‘where additional tests are required to explain a diagnosis already contained in the record.’”
(Doc. 27 at 6, quoting Hawkins, 113 F.3d at 1166). The “starting place” is to ask whether there
is “some objective evidence in the record suggesting the existence of a condition which could
have a material impact on the disability decision requiring further investigation.” Hawkins, 113
F.3d at 1167. Where the record contains evidence that is “sufficient to suggest a reasonable
possibility that a severe impairment exists,” the ALJ must “order a consultative examination if
such an examination is necessary or helpful to resolve the issue of impairment.” Id.
In the Objection, the Commissioner argues that the ALJ had no duty to order additional
testing as recommended by Dr. Rawlings.

(Doc. 28 at 2-5).

Notwithstanding the

Commissioner’s arguments to the contrary, the Court agrees with Judge Wilson that the matter
should be reversed and remanded for further proceedings. The ALJ relied at least in part on Dr.
Rawlings’s opinion for the diagnoses of bipolar disorder, panic disorder, and personality disorder
with histrionic personality traits and relied significantly on Dr. Rawlings’s mental status exam in
determining that plaintiff’s impairments were “nonsevere,” but the ALJ either disregarded or

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rejected Dr. Rawlings’ recommendation for additional mental testing, specifically MMPI-2 and a
psychiatric evaluation. (Record at 478 [Doc. 13-7 at 224]). In light of these facts, the Court
agrees with Judge Wilson that Dr. Rawlings’s recommendation for further testing indicates that
“additional tests are required to explain a diagnosis already contained in the record.” (Doc. 27 at
9-10). Because the ALJ did not explain his reasons for failing to order the testing recommended
by Dr. Rawlings, the Court agrees that the case should “be remanded for the ALJ to explain the
reasons for failing to order the additional tests.” (Id.).
The Commissioner’s Objection does not address or even mention the requirements of
Hawkins or attempt to explain why Judge Wilson’s analysis of the record in light of Hawkins is
flawed. The Court has concluded that the record contains evidence that is “sufficient to suggest
a reasonable possibility that a severe impairment exists,” such that the ALJ must “order a
consultative examination if such an examination is necessary or helpful to resolve the issue of
impairment.” Hawkins, 113 F.3d at 1166-67. Because the ALJ was silent as to the reasons he
disregarded or rejected Dr. Rawlings’s recommendation for additional testing, while he
otherwise relied upon Dr. Rawlings’s report to support the ALJ’s finding of nonsevere
impairments, reversal and remand is appropriate. If the ALJ determines upon remand that
additional testing is necessary or helpful to the resolution of plaintiff’s claim, such testing shall
be ordered. Otherwise, the ALJ should explain his reasoning as to why he rejects Dr. Rawlings’s
recommendation.
IT IS THEREFORE ORDERED that the Commissioner’s Objection (Doc. 28) is
overruled, the Report and Recommendation (Doc. 27) is hereby accepted, and the
Commissioner’s decision denying disability benefits to plaintiff is reversed and remanded in
accordance with this Opinion and Order. A separate judgment will be entered forthwith.

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SO ORDERED this 9th day of September, 2014.

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