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Thomas v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

June 7, 2019

TAMMY S. THOMAS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Deavers, Chief Magistrate Judge

          ORDER

          ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE

         This 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 analysis therein.

         I. BACKGROUND

         Plaintiff, 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.

         Plaintiff 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).

         First, 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.

         In the 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).

         At step 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. at 209).

         At step 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).

         The 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.

         On 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).

         Plaintiff 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 statements.

         II. ...


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