Berry v. Commissioner of Social Security

Filing 24

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 13 Report and Recommendation in its entirety. The Court AFFIRMS the decision of the ALJ and DISMISSES this case from the docket. Signed by Judge S Arthur Spiegel on 11/1/2011. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KATHY L. BERRY,

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Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,

NO. 1:10-CV-00435

OPINION AND ORDER

Defendant.
This matter is before the Court on the Magistrate Judge’s
Report and Recommendation, (doc. 13), Plaintiff’s Objections (doc.
16), Defendant’s Response (doc. 17), Plaintiff’s Reply (doc. 22),
and

Defendant’s

Response

(doc.

23).

In

her

Report

and

Recommendation, the Magistrate Judge recommended that the decision
of

the

Administrative

Law

Judge

Disability Insurance Benefits (“DBI”)

(“ALJ”)

denying

Plaintiff

be affirmed and this case

be dismissed from the docket of the Court (Id.).

For the reasons

indicated herein, the Court ADOPTS the Magistrate Judge’s Report
and Recommendation in its entirety.
Plaintiff filed an application for DIB on August 29,
2002, alleging a disability onset date of March 1, 2002, due to
knee, hip, and left arm pain, which Defendant denied initially and
subsequently upon reconsideration (Id.).

Plaintiff subsequently

requested a hearing before an ALJ, which she obtained, and at which

she was represented by counsel (Id.).

The ALJ denied Plaintiff’s

application on June 2, 2005, following which Plaintiff requested
review by the Appeals Council (Id.).

The Appeals Council remanded

the matter in part to the ALJ because it found Plaintiff’s date
last insured had changed from March 31, 2004 to September 30, 2005,
resulting in an unadjudicated period of time (Id.).

The Appeals

Council further directed the ALJ to further evaluate Plaintiff’s
functional capacity and opinion evidence (Id.).
second

evidentiary

hearing,

after

Plaintiff’s DIB application (Id.).

which

she

The ALJ held a
again

denied

Although the ALJ found that

Plaintiff had severe impairments of degenerative disc disease of
the lumbar spine, history of right knee replacement, generalized
anxiety disorder, and a history of substance abuse, she concluded
Plaintiff nonetheless had the residual functional capacity to
perform simple, routine, repetitive sedentary work allowing her to
alternative positions every half hour (Id.).

Accordingly, the ALJ

determined that Plaintiff was not under disability and was not
entitled to DIB (Id.).

The Appeals Council denied Plaintiff’s

second request for review, thus making the ALJ’s second decision
the final determination of the Commissioner (Id.).
On appeal to this Court, Plaintiff contends the nondisability determination should be reversed for three reasons
(Id.).

First, she argues the ALJ failed to consider the relevant

evidence after September 20, 2005 (Id.).

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Next, she contends the

ALJ improperly evaluated medical opinions that were focused on
Plaintiff’s worker’s compensation claim (Id.). Finally, she argues
the ALJ improperly assessed her credibility (Id.).
Plaintiff reiterates her arguments in her Objections
(docs. 16, 22), which Defendant contests (docs. 17, 23). Defendant
specifically attacks Plaintiff’s assertion that the ALJ “draws a
line in the sand and says that evidence after September 20, 2005
will not be considered” (doc. 23).

In Defendant’s view, any

evidence generated after such date must relate to Plaintiff’s
residual functional capacity (“RFC”) before October 1, 2005, for it
to be relevant to Plaintiff’s claims (Id.).

Defendant contends

later generated records were not probative of Plaintiff’s RFC
during the time period at issue (Id.).

Because September 30, 2005

is Plaintiff’s last date insured under the Act, Defendant argues
she had to establish disability prior to such date, which she has
not done (Id.).
Defendant further argues that Plaintiff’s contentions
regarding

the

ALJ’s

consideration

opinions should be rejected (Id.).

of

various

medical

source

Plaintiff claims the ALJ did

not understand the specialized purpose of several examinations and
that the ALJ therefore misinterpreted the meaning of the medical
reports (doc. 22).

However, Defendant indicates that Plaintiff

points to no language in the ALJ’s decision demonstrating an
explicit misinterpretation or misunderstanding of the purpose of

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such reports (doc. 23).

Specifically, Defendant contends the mere

fact that Dr. Fisher’s report was for purposes of a worker’s
compensation claim in no way means such information is not relevant
to Plaintiff’s RFC (Id.).

Finally, Defendant argues Plaintiff’s

attack on the ALJ’s credibility finding should be rejected, because
she cites to nothing in the record to back up her accusations
(Id.).

Defendant contends the ALJ properly considered Plaintiff’s

lying about alcohol use, her noncompliance, her daily activities,
part-time employment and exaggerated self-reporting of symptoms in
assessing the credibility of Plaintiff’s subjective complaints
(Id.). For all of these reasons, Defendant argues the Court should
conclude that the Magistrate Judge’s decision was supported by
substantial

evidence

and

adopt

and

affirm

the

Report

and

Recommendation (Id.).
The Court, having reviewed this matter de novo pursuant
to 28 U.S.C. §636(b) finds the Magistrate Judge’s Report and
Recommendation well-reasoned, thorough, and correct.

The Court

finds the ALJ’s decision supported by substantial evidence.

The

Court agrees with Defendant that Plaintiff’s proffered claims of
error are lacking in merit.
The

Parties

were

served

with

the

Report

and

Recommendation and were therefore afforded proper notice of the
Magistrate Judge’s Report and Recommendation required by 28 U.S.C.
§ 636(b)(1)(C), including that failure to file timely objections to

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the Report and Recommendation would result in a waiver of further
appeal.

See United States v. Walters, 638 F.2d 947, 949-50 (6th

Cir. 1981).
Accordingly, having reviewed this matter de novo pursuant
to 28 U.S.C. §636(b), the Court ADOPTS the Magistrate Judge’s
Report and Recommendation in its entirety (doc. 13), AFFIRMS the
decision of the ALJ, and DISMISSES this case from the docket.

SO ORDERED.

Dated: November 1, 2011

/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

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