Pennington v. Commissioner of SSA

Filing 14

ENTRY AND ORDER OVERRULING PENNINGTON'S OBJECTIONS (Doc. 13 ) TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS; ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (Doc. 12 ) IN ITS ENTIRETY; AFFIRMING THE COMMISSIONER'S DECISION THAT PENNINGTON WAS NOT DISABLED AND TERMINATING THIS CASE. Signed by Judge Thomas M Rose on 12/17/09. (bac1)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION THOMAS E. PENNINGTON, Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ______________________________________________________________________________ ENTRY AND ORDER OVERRULING PENNINGTON'S OBJECTIONS (Doc. #13) TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS; ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (Doc. #12) IN ITS ENTIRETY; AFFIRMING THE COMMISSIONER'S DECISION THAT PENNINGTON WAS NOT DISABLED AND TERMINATING THIS CASE ______________________________________________________________________________ Plaintiff Thomas E. Pennington ("Pennington") seeks judicial review of the Commissioner of Social Security's (the "Commissioner's") final decision that he was not disabled. He seeks judicial review pursuant to 42 U.S.C. § 405(g). On November 4, 2009, United States Magistrate Judge Sharon L. Ovington filed a Report and Recommendations (doc. #12) recommending that the Commissioner's decision that Pennington was not disabled be affirmed. Pennington subsequently filed Objections (doc. #13) and the Commissioner has not responded to Pennington's Objections. Based upon the reasoning and citations of authority set forth in the Magistrate Judge's Report and Recommendations (doc. #12) and in Pennington's Objections (doc. #13), as well as upon a thorough de novo review of this Court's file, including the Administrative Transcript, and 1 Case No. 3:08-cv-343 Judge Thomas M. Rose Magistrate Judge Sharon L. Ovington

a thorough review of the applicable law, this Court adopts the aforesaid Report and Recommendations in its entirety and, in so doing, affirms the Commissioner's decision that Pennington is not disabled. Finally, Pennington's Objections to the Magistrate Judge's Report and Recommendations are overruled. This Court's function is to determine whether the record as a whole contains substantial evidence to support the Administrative Law Judge's ("ALJ's") decision. Bowen v. Commissioner of Social Security, 478 F.3d 742, 745-46 (6th Cir. 2007). This Court must also determine whether the ALJ applied the correct legal criteria. Id. Regarding the substantial evidence requirement, the Commissioner's findings must be affirmed if they are supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971)(citing Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)); Landsaw v. Secretary of Health and Human Services, 803 F.2d 211, 213 (6th Cir. 1986). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson, supra, at 401; Ellis v. Schweicker, 739 F.2d 245, 248 (6th Cir. 1984). Substantial evidence is more than a mere scintilla, but only so much as would be required to prevent a directed verdict (now judgment as a matter of law) against the Commissioner if this case were being tried to a jury. Foster v. Bowen, 853 F.2d 483, 486 (6th Cir. 1988); NLRB v. Columbian Enameling and Stamping Company, 306 U.S. 292, 300 (1939). The second judicial inquiry - reviewing the ALJ's legal criteria - may result in reversal even if the record contains substantial evidence supporting the ALJ's factual findings. See Bowen, 478 F.3d at 746. A reversal based on the ALJ's legal criteria may occur, for example,

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when the ALJ has failed to follow the Commissioner's "own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen, 478 F.3d at 746(citing in part Wilson v. Commissioner of Social Security, 378 F.3d 541, 546-47 (6th Cir. 2004)). In this case, the Commissioner has applied the correct legal criteria and the Commissioner's decision is supported by substantial evidence. WHEREFORE, based upon the aforesaid, Pennington's Objections to the Magistrate Judge's Report and Recommendations (doc. #13) are OVERRULED, and this Court adopts the Report and Recommendations of the United States Magistrate Judge (Doc. #12) in its entirety. The Commissioner's decision that Pennington was not disabled and therefore not entitled to Social Security disability benefits is AFFIRMED. The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton. DONE and ORDERED in Dayton, Ohio, this Seventeenth day of December, 2009. . s/Thomas M. Rose _____________________________________ JUDGE THOMAS M. ROSE UNITED STATES DISTRICT COURT

Copies furnished to: Counsel of Record

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