Southerland v. Commissioner of Social Security et al

Filing 22

ORDER ADOPTING the REPORT AND RECOMMENDATION 19 in that the decision of the Commissioner is AFFIRMED. Signed by Judge Gregory L Frost on 9/9/09. (sem1, )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION Kathy M. Southerland, Plaintiff, v. : : : Case No. 2:08-cv-0440 JUDGE FROST

Michael J. Astrue, : Commissioner of Social Security, : Defendant. ORDER

This matter is before the Court to consider de novo the plaintiff's objections to a Report and Recommendation of the Magistrate Judge recommending that judgment be entered in favor of the Commissioner. For the following reasons, those objections will be overruled and judgment will be entered for the defendant. Plaintiff raises two objections to the Report and Recommendation. First, he asserts that the Magistrate Judge erred by affirming the Commissioner's decision to rely on the opinion of Dr. Lewis concerning the extent to which plaintiff was impaired by psychological conditions without regard to alcohol abuse. Second, plaintiff asserts the Magistrate Judge erroneously upheld the Administrative Law Judge's residual functional capacity finding even though it was not based on the opinions of Drs. Davis and Garling and was, according to plaintiff, the result of the ALJ's substitution of his own medical judgment for that of the experts. As the Report and Recommendation notes, the record supports the Commissioner's finding that plaintiff understated or concealed the extent of her alcohol abuse to every examining mental health professional but Dr. Lewis. Therefore, the Court agrees that it was reasonable for the Commissioner to rely on his

evaluation of plaintiff's mental impairment more heavily than on the more pessimistic evaluations of others. first objection is without merit. As far as the Commissioner's evaluation of plaintiff's physical residual functional capacity is concerned, the Commissioner had to balance Dr. Garling's opinion that the record showed no severe physical impairment at all with Dr. Davis' opinion that plaintiff could not perform even sedentary work. Dr. Garling gave sound reasons for concluding that plaintiff's physical impairment was not severe. Although the ALJ did not fully credit that opinion, the ALJ did use it, as well as plaintiff's own description of her physical activities, as a basis for concluding that even though plaintiff's lifting capabilities might be limited to the sedentary work range, as opined by Dr. Davis, she could sit long enough during a work day to do sedentary work. On this record, that was not error, and did not represent the ALJ's having improperly supplanted the role of the medical experts. For these reasons, the plaintiff's objections to the Report and Recommendation of the Magistrate Judge are OVERRULED, and the Report and Recommendation is ADOPTED. The plaintiff's statement of errors is OVERRULED, the decision of the Commissioner is AFFIRMED, and the Clerk is directed to enter judgment in favor of the defendant Commissioner. Thus, plaintiff's

___ /s/ Gregory L. Frost GREGORY L. FROST UNITED STATES DISTRICT JUDGE

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