UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

NATALIE SUE WECKBACHER,

Plaintiff,

Civil Action 2:11-cv-00659

v. Judge Algenon L. Marbley

Magistrate Judge Elizabeth P. Deavers

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

OPINION AND ORDER

This matter is before the Court for consideration of the July 10, 2012 Report and

Recommendation of the Magistrate Judge. (ECF No. 16.) The Magistrate Judge recommended

that the Court affirm the decision of the Commissioner of Social Security (“Commissioner”). On

July 2, 2012, Plaintiff filed her Objections to the Report and Recommendation. (ECF No. 17.) 

For the following reasons, Plaintiff's Objections are OVERRULED and the Report and

Recommendation is ADOPTED. Accordingly, the decision of the Commissioner is

AFFIRMED.

Plaintiff filed applications for disability alleging that she became disabled on April 5,

1997 due to a variety of conditions including mental impairments.1 On July 20, 2010, an

Administrative Law Judge (“ALJ”) issued a decision finding that Plaintiff was not disabled. The

ALJ specifically found that Plaintiff did not have a severe impairment or combination of

impairments. In reaching this determination, the ALJ relied on the opinion of state agency

1

 The Report and Recommendation contains a detailed summary of the administrative

testimony and medical evidence in this case. (See Report & Recommendation 2-10, ECF No.

16.) 

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physician Dr. Joan Williams who opined that Plaintiff did not have a severe mental impairment. 

The ALJ rejected the opinions of Dr. Gary Sarver and psychologist John Atkinson, Jr. 

On July 10, 2012, the Magistrate Judge recommended that the Court affirm the decision

of the Commissioner. The Magistrate Judge found that Plaintiff had waived any argument that

her physical conditions amounted to a severe impairment. Although the Magistrate Judge

observed that the Court would also be justified in finding waiver with regard to Plaintiff’s mental

impairments, the Magistrate Judge went on to evaluate the ALJ’s determination that Plaintiff did

not have a severe mental impairment. The Magistrate Judge ultimately concluded that

substantial evidence supported the ALJ’s determination. Plaintiff maintains that the Magistrate

Judge erred in finding that she had waived her severe impairment argument. Additionally,

Plaintiff appears to contend that substantial evidence does not support the ALJ’s severe

impairment decision. 

If a party objects within the allotted time to a report and recommendation, the Court

“shall make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed.

R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The

Court’s review “is limited to determining whether the Commissioner’s decision ‘is supported by

substantial evidence and was made pursuant to proper legal standards.’” Ealy v. Comm'r of Soc.

Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234,

241 (6th Cir. 2007)); see also, 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”).

Following de novo review, the Court agrees with the determinations of the Magistrate

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Judge. First, reviewing Plaintiff's Statement of Errors, it is clear that Plaintiff waived any

argument that her physical impairments were severe due to a lack of development. As the

Magistrate Judge provided:

In this case, despite the extensive nature of the record, Plaintiff offers minimal

development of the severe impairment issue. Within her Statement of Errors,

Plaintiff offers less than two pages of briefing on the issue. This briefing consists of

a general description of severe impairment law, a brief summary of the ALJ’s

decision, and a paragraph of case specific analysis. Within the analysis, Plaintiff

fails to cite to any specific medical evidence within the record and instead relies on

a few references to Plaintiff’s testimony. 

Under these circumstances, the undersigned finds that Plaintiff has waived any

argument that Plaintiff’s physical impairments, alone or in combination, amount to

a severe impairment. With regards to her physical condition, Plaintiff only offers the

cursory contention that the record is replete with physical treatment. She offers no

guidance to the Court, however, as to which of her physical conditions, and what

medical evidence, supports a severe impairment finding.

(Report & Recommendation 16, ECF No. 16.)

Second, the Court finds that substantial evidence supports that ALJ’s finding that Plaintiff

did not have severe mental impairment, or combination of impairments. Even disregarding gaps

within Plaintiff's treatment history, which Plaintiff stresses were due to her incarcerations, a

variety of other reasons support the ALJ’s severe impairment determination. Once again, the

Magistrate Judge’s analysis is persuasive:

Substantial evidence supports the ALJ’s conclusion that Plaintiff's mental

impairments were not severe. Despite her alleged onset date in April 1997, Plaintiff

was able to graduate from high school in 2001 and then complete three years of

college. Furthermore, the record evidence suggests that Plaintiff engages in relatively

extensive daily activities. For example, on July 20, 2007, Plaintiff self-reported

cooking, cleaning, doing laundry, shopping, and socializing with friends and family. 

(R. at 330–32.) Similarly, in August 2007, Plaintiff informed Dr. Sarver that she

participated in various “day-to-day demands including shopping, bill paying, and

household management.” (R. at 1373.) The record reflects that Plaintiff has worked

during various portions of her alleged disability period including a sixth month period

as a waitress and a five month period as a telemarketer. (R. at 1373, 1540.) At the

time of the administrative hearing, Plaintiff had begun another waitress position and

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was expecting to work twenty to thirty hours per week. (R. at 1533–34.) Although

Plaintiff suggests that she is unable to hold onto positions due to her mental

limitations, as the ALJ noted, the record suggests other possible reasons for Plaintiff's

sporadic work history. In August 2007, for example, it appears Plaintiff herself

indicated that she could do more work, and receive better positions, if it was not for

her criminal record. (R. at 1390.) 

Much of the medical record also supports the ALJ’s conclusion with regard to a lack

of any severe impairments. Most directly, in September 2007, Dr. Williams opined

that Plaintiff did not have a severe mental impairment. She further opined that

Plaintiff had no more than mild limitations in activities of daily living, social

functioning, and concentration, with no episodes of decompensation. See 20 C.F.R.

§§ 404.1520a(d)(1), 416.920a(d)(1) (indicating that if limitations in these areas are

mild or none, a finding of no severe impairments generally follows). Dr. Williams

stressed that these findings were consistent with Plaintiff’s ability to perform the

challenging role of a public waitress. Dr. Chambly affirmed this opinion in March

2008. Given the relatively extensive nature of Plaintiff's activities, the functional

opinions of these reviewing physicians appear consistent with the record. 

Furthermore, in 2008, when Plaintiff’s substance abuse was in early remission,

Plaintiff was assigned a GAF of 70, placing her at the high end of a score range

suggesting only mild symptoms. 

(Report & Recommendation 18–19, ECF No. 16.)

For the above reasons, as well as the reasoning outlined by the Magistrate Judge in her

Report and Recommendation, Plaintiff’s Objections (ECF No. 17) are OVERRULED and the

Report and Recommendation is ADOPTED (ECF No. 16). The decision of the Commissioner is

therefore AFFIRMED.

IT IS SO ORDERED.

 s/Algenon L. Marbley 

 ALGENON L. MARBLEY

 UNITED STATES DISTRICT COURT

DATED: September 24, 2012

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