Oudinot-Robertson v. Commissioner Social Security Administration
OPINION AND ORDER: Adopting Findings and Recommendation 20 . Signed on 9/21/2017 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 1: 16-cv-00882-JR
OPINION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
On August 7, 2017, Magistrate Judge Russo filed her Findings and Recommendation
("F &R") (doc. 20), recommending this Court reverse and remand for further proceedings in this
Social Security disability appeal. The F&R is now before me pursuant to 28 U.S.C. § 636(b) and
Fed. R. Civ. P. 72. I review de nova those p01iions of the F&R to which objection is made. 28
U.S.C. § 636(b)(l)(C); accord Fed. R. Civ. P. 72(b)(3); Holder v. Holder, 392 F.3d 1009, 1022
(9th Cir. 2004).
Judge Russo concluded the ALJ erred at step two when he determined plaintiffs
fibromyalgia was not a medically determinable impairment. The Commissioner argues any error
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at step two was harmless because the ALJ took fibromyalgia symptoms such as pain and fatigue
into consideration when foimulating the RFC.
The Commissioner faults Judge Russo for
adopting a "per se hamrful enor rule." Obj. F&R 3. To the contrary, Judge Russo correctly
applied the harmless enor rule, which requires remand unless the record clearly shows the ALJ
considered, at step four and/or five, limitations posed by the impairment excluded at step two.
See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Judge Russo carefully parsed the ALJ's
decision and found evidence the ALJ had deliberately excluded fibromyalgia symptoms from
consideration at steps four and five. In her objections, the Commissioner cites other portions of
the ALJ' s decision that purportedly show the ALJ did, in fact, consider those symptoms in
f01mulating the RFC.
Even assuming the Commissioner's inte1pretation of the evidence is
conect, conflicting evidence renders the decision ambiguous. That ambiguity prevents me from
finding the error at step two harmless.
Having perfo1med an independent review of the record, I agree that the ALJ harmfully
eiTed at step two. I ADOPT Judge Russo's F&R (doc. 20). This case is REVERSED AND
REMANDED for further proceedings.
IT IS SO ORDERED.
United States District Judge
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