Gerhard v. Commissioner of Social Security

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION 20 of Magistrate Judge Shon Erwin and reverses the final decision of the Commissioner and remands this case for further proceedings consistent with the attached Report and Recommendation. Signed by Honorable Joe Heaton on 01/29/2015. (Attachments: # 1 Attachment Report and Recommendation)(lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
THELMA K. GERHARD,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of the Social,
Security Administration
Defendant.

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NO. CIV-14-188-HE

ORDER
Plaintiff Thelma K. Gerhard filed this action seeking judicial review of the final
decision of the Commissioner of the Social Security Administration denying her applications
for disability insurance benefits and supplemental security income benefits. Consistent with
28 U.S.C. § 636(b), the case was referred to Magistrate Judge Shon T. Erwin, who
recommends that the Commissioner’s decision be reversed and the matter remanded for
further proceedings. The magistrate judge concluded the Administrative Law Judge (“ALJ”)
erred by failing to make specific findings as to the physical and mental demands of plaintiff’s
past relevant work. Because the ALJ did not make an alternative finding at step five that
plaintiff could adjust to other work, the magistrate judge determined the error was not
harmless and required that the Commissioner’s decision be reversed.
The Commissioner filed a brief objection to the Report and Recommendation. She
does not contest the magistrate judge’s conclusion that the ALJ erred or that the decision fails
to contain the alternative step-five findings that would render the error harmless. What she
claims is that she asserted another basis for concluding the error was harmless which the

magistrate judge did not consider. What the Commissioner suggested to the magistrate
judge and now asks the court to do is to “supply the missing dispositive finding and find the
ALR’s error harmless.” Doc. #21, p. 2.
The court agrees with the Commissioner that there is evidence in the record
supporting the ALJ’s finding that plaintiff previously worked as a housekeeper, Transcript
(“TR.”) pp. 52, 54, and some evidence regarding the demands of that job, including a
description of that work by plaintiff herself. See id. at pp. 52, 54, 184. However, the court
does not agree that it can supply the missing dispositive finding, “i.e., that Plaintiff’s past
work required light exertion.” Doc. #21, p. 3. Plaintiff’s former position as a housekeeper
was not even discussed at the hearing before the ALJ. The only jobs briefly mentioned were
her former jobs of switchboard operator, rehabilitation specialist and cashier. Tr. 45. To do
what the Commissioner asks “would be an improper exercise in judicial factfinding rather
than a proper application of harmless-error principles.” Allen v. Barnhart, 357 F.3d 1140,
1145 (10th Cir. 2004). As the Tenth Circuit made clear in Winfrey v. Chater, 92 F.3d 1017,
1025 (10th Cir. 1996) and repeatedly since then, “the ALJ himself must make the required
findings on the record, including his own evaluation of the claimant’s ability to perform [her]
past relevant work.”
Accordingly, the court adopts Magistrate Judge Erwin’s Report and Recommendation,
REVERSES the final decision of the Commissioner and REMANDS the case for further
proceedings consistent with the Report and Recommendation, a copy of which is attached
to this order. This decision does not suggest or imply any view as to whether plaintiff is or
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is not disabled, or what result should be reached on remand.
IT IS SO ORDERED.
Dated this 29th day of January, 2015.

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