Way v. Commissioner of Social Security
Filing
11
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 10 Report and Recommendation. The Court AFFIRMS the decision of the Commissioner, denying Plaintiff's application for SSI. This matter is dismissed from the Court's docket. Signed by Judge S Arthur Spiegel on 8/24/2011. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
PEGGY WAY,
Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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NO. 1:10-CV-535
OPINION AND ORDER
This matter is before the Court on the Magistrate Judge’s
Report and Recommendation (doc. 10), to which there were no
objections. For the reasons indicated herein, the Court ADOPTS and
AFFIRMS the Magistrate Judge’s Report and Recommendation.
Plaintiff filed an application for Supplemental Security
Income (SSI) in May, 2004, alleging a disability onset date of
January 27, 2002 (doc. 10).
The application was initially denied
in August 2004 and upon reconsideration on January 21, 2005 (Id.).
Plaintiff requested and was granted a de novo hearing before
administrative law judge (ALJ) Samuel A. Rodner on September 1,
2006 (Id.).
ALJ Rodner denied Plaintiff’s SSI application on the
ground that Plaintiff had not been under a disability as defined in
the Social Security Act since October 28, 2003, the date the
application was protectively filed (Id.).
Plaintiff filed another
application on February 23, 2007, which was denied both initially
and upon reconsideration (Id.).
Plaintiff requested and was
granted a de novo hearing before ALJ Deborah Smith on June 30, 2009
(Id.).
During the hearing, Plaintiff amended the alleged onset
date of disability to February 23, 2007, the protective filing date
of the application (Id.).
ALJ Smith denied Plaintiff’s SSI
application on July 22, 2009, determining that Plaintiff retained
the residual functional capacity (RFC) to perform light work as
defined
in
20
C.F.R.
§
404.1567(b)
with
additional
postural
limitations (Id.).
In her Report and Recommendation, the Magistrate Judge
stated that Plaintiff’s argument is two-fold (Id.).
First, that
ALJ Rodner erroneously relied on vocational expert (VE) testimony
which did not accurately reflect her RFC (Id.).
And second, that
ALJ Smith erred by failing to consider new and material evidence
showing her condition had worsened since ALJ Rodner issued his
decision, and by failing to elicit new VE testimony which took the
functional limitations imposed by her worsened condition into
account (Id.).
The Magistrate Judge rejected the first prong of
Plaintiff’s argument, stating that Plaintiff cannot challenge ALJ
Rodner’s findings at this point because she did not appeal within
60 days of the Appeals Council’s notice of its decision to deny
review (Id.).
The Magistrate Judge also rejected the second prong
of Plaintiff’s argument, finding that ALJ Smith’s decision that
there is no new and material evidence showing Plaintiff’s condition
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had worsened was supported by substantial evidence (Id.).
As the
Magistrate Judge found that ALJ Smith thoroughly reviewed the
medical
evidence
decision,
and
for
the
evidence
period
lacked
subsequent
that
to
Plaintiff’s
ALJ
Rodner’s
condition
had
worsened, the Magistrate Judge found ALJ Smith was bound by ALJ
Rodner’s findings (Id.).
Accordingly, the Magistrate Judge found
ALJ Smith’s decision that Plaintiff has not been under disability
at any time since February 23, 2007 supported by substantial
evidence, and that such decision should be affirmed (Id.).
Having reviewed this matter, noting no objections, the
Court finds the Magistrate Judge’s analysis complete, thorough, and
well-reasoned.
Accordingly, the Court ADOPTS and AFFIRMS the
Magistrate Judge’s Report and Recommendation (doc. 10) and AFFIRMS
the decision of the Commissioner, denying Plaintiff’s application
for SSI.
This matter is dismissed from the Court’s docket.
SO ORDERED.
DATED: August 24, 2011
s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
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