Harman v. Colvin

Filing 23

ORDER; re 20 REPORT AND RECOMMENDATION re 1 Complaint Social Security filed by Tonda L Harman. Court declines to adopt the Report and Recommendation and orders that this matter be re-referred to the Commissioner for additional proceedings. Signed by Honorable David L. Russell on 1/28/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TONDA L. HARMAN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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CIV-15-202-R

ORDER
Plaintiff Tonda Harman brings this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of the Social Security Administration
(“SSA”) denying her application for Supplemental Security Income (“SSI”) under Title XVI
of the Social Security Act, 42 U.S.C. §§ 1381–1383f. Pursuant to 28 U.S.C. § 636(b)(1)(B),
the matter was referred to United States Magistrate Judge Suzanne Mitchell for preliminary
review. On November 5, 2015, Judge Mitchell issued a Report and Recommendation,
wherein she recommended that the decision of the Commissioner be affirmed. The matter is
currently before the Court on Plaintiff's timely objection to the Report and Recommendation,
which gives rise to the Court's obligation to conduct a de novo review of those portions of
the Report and Recommendation to which Plaintiff makes specific objection. Having
completed this review, the Court finds as follows.
As noted by Judge Mitchell the Commissioner relies on a five-step sequential analysis
in assessing eligibility for disability benefits. At step one the administrative law judge

concluded Plaintiff had not engaged in substantial gainful activity since March 14, 2013, the
date of her application. At step two the administrative law judge concluded she had the
severe impairment of chronic back pain with associated numbness and the non-severe
impairments of asthma, affective disorder and generalized anxiety disorder. At step three he
concluded that Plaintiff's impairments did not meet any of the listings that would have
resulted in a finding that she was presumptively disabled. The administrative law judge
assessed Plaintiff's residual functional capacity and concluded that she retained the capacity
for the full range of light work. As a result he concluded that she could perform her past
relevant work and his assessment terminated at step four of the sequential analysis.
Plaintiff's first challenge to the administrative law judge's decision addresses his
credibility analysis. Plaintiff acknowledged in her opening brief that credibility is the
province of the administrative law judge, but argues that deference is warranted only in the
event the administrative law judge conducts the proper analysis and documents such in his
decision. She contends his analysis was conclusory, that he failed to consider her efforts to
obtain treatment and pain relief, and further that there is substantial evidence contrary to his
credibility finding.
As noted above, the administrative law judge concluded that Plaintiff suffered from
the severe impairment of chronic back pain with associated numbness. After concluding she
could perform the full range of light work, the administrative law judge summarized
Plaintiff's hearing testimony and thereafter stated:
After careful consideration of the evidence, the undersigned finds that the
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claimant's medically determinable impairments could reasonably be expected
to cause the alleged symptoms; however, the claimant's statements concerning
the intensity, persistence and limiting effects of these symptoms are not
entirely clear for the reasons explained in this decision.
Tr. 24. Thereafter the administrative law judge summarized the findings by Ryan Trojah,
M.D., who conducted a consultative examination. At the end of the summary the
administrative law judge wrote:
The claimant was assessed with chronic back pain with reported numbness of
the right leg and left arm with increased use. Dr. Torjah reiterated that the
claimant had sensation in the upper and lower extremities bilaterally. The
claimant exhibited no loss of strength in either the upper or lower extremities.
The claimant was also assessed with asthma, it is noted the only sign of asthma
was mild expiratory wheezing (Exhibit 2F). This evidence does not support the
alleged severity of the claimant's impairments. While the claimant was
assessed with asthma in light of mild expiratory wheezes, there was no
indication of functional limitation relating to the wheezing. Additionally, the
claimant's complaints of pain were not substantiated by limitations on
examination, only subjective complaints of pain. The evidence does not
contradict the above residual functional capacity.
Tr. 24. Accordingly, it appears to the undersigned that the administrative law judge
discredited Plaintiff's complaints of pain solely because of a lack of objective substantiation.
The administrative law judge did not make reference to any attempts to find relief,
willingness to try treatment, Plaintiff's activities of daily living1, any medication Plaintiff was
taking.2 Furthermore, the Court agrees with Plaintiff that the administrative law judge's
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The administrative law judge recited Plaintiff's testimony regarding her activities of daily living's
but made no finding that her activities were inconsistent with her reported level of pain.
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The medical evidence in this case was limited by Plaintiff's apparent financial inability to seek
treatment during the twelve months prior to the filing of the application and during its pendency. The
administrative law judge, however, made no reference to most of the factors set forth in Luna v. Bowen, 834
F.2d 161 (10th Cir. 1987), despite finding that Plaintiff suffered from the severe impairment of chronic back
(continued...)

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discussion regarding the Outpatient Request for Prior Authorization, completed on
September 11, 2013, is a statement in support of rejecting the GAF of 38 assigned therein,
not a statement regarding Plaintiff's credibility.
In short, the Court disagrees with the Magistrate Judge that the administrative law
judge's credibility analysis was sufficient to comport with the requirements of 20 C.F.R. §
416.929 and SSR 96-7p. Although there is certainly evidence contained within the record and
summarized by the administrative law judge that could have permitted him to conclude that
Plaintiff's allegations were not credible, with the one insufficient example set forth above,
the administrative law judge did not connect the dots in conducting his credibility analysis.
As such, the Court declines to adopt the Report and Recommendation and orders that this
matter be re-referred to the Commissioner for additional proceedings.
IT IS SO ORDERED this 28th day of January, 2016.

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pain, so as to permit the Court to conclude that he considered the factors.

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