United States District Court, S.D. Ohio, Eastern Division
TAMMY S. THOMAS, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
Deavers, Chief Magistrate Judge
ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Magistrate Judge's
February 15, 2019, Report and Recommendation
(ECF No. 14), which recommended that Plaintiff's
Statement of Errors (ECF No. 8) be OVERRULED
and that the Commissioner's decision be
AFFIRMED. This Court hereby
ADOPTS the Report and Recommendation in its
entirety based on an independent consideration of the
Tammy S. Thomas, filed an application for disability
insurance benefits on February 23, 2010, alleging the onset
of her disability as June 30, 2008. (R. at 157).
Plaintiff's application was denied and subsequently
denied upon reconsideration. Id. Then, Plaintiff
requested a de novo hearing before an administrative
law judge (“ALJ”). Id. Plaintiff,
represented by counsel, appeared and testified before ALJ
Foley at her hearing on June 18, 2012. (R. at 157, 169). ALJ
Foley found Plaintiff was not “disabled” within
the meaning of the Social Security Act. (R. at 157-69).
Plaintiff did not appeal this decision.
filed a second application for disability insurance benefits
in February 2014, alleging disability onset as August 29,
2012. (R. at 288-89). Plaintiff's application was denied
and subsequently denied upon reconsideration. (R. at
174-200). Plaintiff requested a de novo hearing
before an ALJ. (R. at 247-48). Plaintiff, represented by
counsel, appeared and testified before ALJ Earnhart at the
hearing on April 15, 2016. (R. at 121-53).
ALJ Earnhart discussed Drummond and its
applicability to Plaintiff's claim. Drummond
held that principles of res judicata require that
where a plaintiff brings a claim that arises under the same
title of the Social Security Act as a past claim on which
there was a final decision by an ALJ or the Appeals Council,
the Social Security Administration must adopt that previous
final decision. Drummond v. Comm'r of Soc. Sec.,
126 F.3d 837, 842 (6th Cir. 1997). The Social Security
Administration must also affirm findings of claimant's
residual functional capacity, the demands of a claimant's
past relevant work, and additional evidence required under
the sequential evaluation process for determining disability
established in the previous proceeding. But, where there are
changed circumstances from the first hearing, the
Drummond rule does not apply. See Id.
Reviewing Plaintiff's second application, ALJ Earnhart
noted that because there was new evidence of impairments that
were not included during the first hearing, the findings made
during the first hearing were not adopted as
Drummond precedent. Thus, ALJ Earnhart was not bound
by findings made by ALJ Foley in the first hearing.
ultimate decision denying disability benefits, ALJ Earnhart
followed the required five-step sequential analysis for
disability benefits claims. See 20 C.F.R. §
416.920(a)(4). At step one, ALJ Earnhart found Plaintiff met
the insured status requirements through June 30, 2014, and
Plaintiff did not engage in substantial gainful activity
since the alleged onset date. At step two, ALJ Earnhart
concluded Plaintiff had severe impairments including
fibromyalgia; obesity; degenerative joint disease of multiple
joints; degenerative disc disease of the lumbar spine with a
history of laminectomy and radiculopathy; migraine headaches;
chronic obstructive pulmonary disease; syncope; sleep apnea;
a depressive disorder; and an anxiety disorder (R. at 207).
three, ALJ Earnhart determined Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled one of the listed impairments described in
20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 14-17).
However, ALJ Earnhart concluded, inter alia, that
fibromyalgia can be identified as a medically determinable
impairment if the medical evidence shows: (1) a history of
widespread pain, (2) either at least 11 positive tender
points, and (3) evidence that other disorders that could
cause repeated manifestations of symptoms were excluded. (R.
four, ALJ Earnhart found claimant had the residual functional
capacity to perform light work with a few exceptions. (R. at
211-12). At the final step, ALJ Earnhart concluded although
claimant was unable to perform her past work-related
activities, Plaintiff is capable of performing other jobs
existing in significant numbers in the economy. (R. at
219-20). Ultimately, ALJ Earnhart found Plaintiff was not
“disabled” within the meaning of the Social
Security Act. (R. at 204-20).
Appeals Council approved Plaintiff's request to review
ALJ Earnhart's decision. (R. at 284-87). The Appeals
Council determined ALJ Earnhart used the wrong date of last
insured, and verified June 30, 2015 as the correct date last
insured, not June 30, 3014. However, the Appeals Council
concluded Plaintiff was not disabled even after reviewing
evidence during the unadjudicated period. (R. at 1-9).
Afterward, Plaintiff filed this suit in district court.
February 15, 2019, the Magistrate Judge issued a Report and
Recommendation recommending that this Court overrule
Plaintiff's Statement of Errors and affirm the decision
of the Commissioner of Social Security. (ECF No. 14).
objects to the Magistrate Judge's findings.
Plaintiff's objection hinges on an evaluation performed
by Dr. Chang. (R. at 118). This evaluation measured
Plaintiff's ability to engage in work related activities
on a day-to-day basis. Id. Plaintiff believes the
results of this evaluation provide further insight into her
abilities. (ECF No. 15). But these statements were signed
after the date last insured. (R. at 118-19). Therefore, the
Magistrate Judge did not consider Dr. Chang's statements
in evaluating Plaintiff's claim. (ECF No. 14). Plaintiff
argues the Magistrate Judge erred in finding the Appeals
Council were justified in failing to consider Dr. Chang's