UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBIN GODDARD,

Plaintiff,

Civil Action 2:11-cv-00809

vs. Judge Michael H. Watson

Magistrate Judge Elizabeth P. Deavers

COMMISSIONER OF SOCIAL 

SECURITY,

Defendant.

REPORT AND RECOMMENDATION

I. INTRODUCTION

Plaintiff, Robin Goddard, filed this action seeking review pursuant to 42 U.S.C.

§§ 405(g) and 1383(c)(3) of a final decision of the Commissioner of Social Security 

(“Commissioner”) denying her application for supplemental security income. In her application,

which she filed on April 10, 2008, Plaintiff alleges disability since January 9, 2008, due to a

variety of conditions including shoulder and lower back injuries, diabetes, and hypertension.1

(R. at 72–74, 125.)

After initial administrative denials of Plaintiff’s claim, Administrative Law Judge

(“ALJ”) Carol K. Bown held a hearing on October 25, 2010 at which a vocational expert

testified. (R. at 292–309.) Although counsel represented her at the hearing, Plaintiff failed to

personally appear and testify. (Id.) On November 29, 2010, the ALJ issued an unfavorable

decision denying benefits. (R. at 11-27.) This decision became the final decision of the

1

 Plaintiff was forty-six years old when she filed her April 2008 applications. (R. at 70.)

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Commissioner when the Appeals Council denied review on July 8, 2011. (R. at 4.)

Plaintiff thereafter timely commenced this civil action. In her Statement of Errors,

Plaintiff contends that the ALJ erred in adopting the residual functional capacity of a prior 2007

ALJ decision, pursuant to the holding of Drummond v. Comm’r of Soc. Sec., 126 F.3d 837 (6th

Cir. 1997), because her circumstances changed following the previous administrative decision. 

Following the Commissioner’s Memorandum in Opposition and Plaintiff’s Reply, the matter is

now ripe for decision. For the reasons that follow, it is RECOMMENDED that the Court

REMAND this case for further consideration.

II. PRIOR ADMINISTRATIVE DECISION

Prior to filing her current claim, Plaintiff filed applications for disability insurance

benefits and supplemental social security income in June 2004. (R. at 29.) On October 25,

2007, ALJ Thaddeus J. Armstead Sr. issued an unfavorable decision finding that Plaintiff was

not disabled within the meaning of the Social Security Act. 

Applying the five-step sequential evaluation process,2

 the ALJ first found that Plaintiff

2

 Social Security Regulations require ALJs to resolve a disability claim through a

five-step sequential evaluation of the evidence. See 20 C.F.R. §416.920(a)(4). Although a

dispositive finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d

727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and answers five

questions:

1. Is the claimant engaged in substantial gainful activity?

2. Does the claimant suffer from one or more severe impairments?

3. Do the claimant’s severe impairments, alone or in combination, meet or equal

the criteria of an impairment set forth in the Commissioner’s Listing of

Impairments, 20 C.F.R. Subpart P, Appendix 1?

4. Considering the claimant’s residual functional capacity, can the claimant

perform his or her past relevant work?

5. Considering the claimant’s age, education, past work experience, and

residual functional capacity, can the claimant perform other work available

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had not engaged in substantial gainful activity since May 28, 2004. (R. at 31.) Next, the ALJ

found that Plaintiff’s severe impairments included peripheral vascular disease; diabetes mellitus,

under adequate control; degenerative changes of the right ankle and left shoulder; and a lumbar

vertebrogenic disorder. (Id.) The ALJ concluded, however, that Plaintiff had failed to produce

sufficient evidence to demonstrate a severe mental impairment. (R. at 33–35.) At the third step,

the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that

met or equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P,

Appendix 1. (R. at 35.)

At step four of the sequential process, the ALJ evaluated Plaintiff’s residual functional

capacity (“RFC”). ALJ Armstead found Plaintiff was capable of work at the light exertional

level with the following restrictions:

[A]t all relevant times through December 31, 2005, . . . [Plaintiff] was limited to

standing 6 hours during an 8-hour workday with normal breaks, with no continuous

walking of more than 5 minutes followed by 5 minutes cessation each time;

unlimited pushing and pulling with the upper extremities, but only occasionally with

the lower extremities; no climbing of ladders, ropes or scaffolds, but occasionally

climbing ramps and stairs; frequent kneeling, crouching, and stooping, but occasional

balancing and crawling; no exposure to extremes of cold or working on uneven or

slippery surfaces; and she is limited to simple, repetitive, i.e., unskilled, work tasks. 

Beginning January 1, 2006, the claimant is additionally limited to sitting a total of

6 hours and standing/walking a total of 2 hours during an 8-hour workday, with the

aforementioned limitation to 5 minutes of walking followed by a cessation of 5

minutes each time, and she cannot perform overhead reaching bilaterally.

(R. at 35–36.) In reviewing the objective medical evidence to support his findings, the ALJ

recognized that Plaintiff suffered from mild degenerative disc disease of the lumbar spine, and

in the national economy?

See 20 C.F.R. §416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).

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that a May 9, 2007 MRI had shown grade 2 spondylolisthesis. (R. at 32, 37.) The ALJ noted,

however, that the medical evidence did “not document the presence of nerve root compression or

radiculopathy, such as reflex, sensory, or motor strength deficits.” (R. at 37.) The ALJ

considered Plaintiff’s diabetes in considering her RFC, but emphasized that it appeared

adequately controlled from the treatment records. (Id.)

Based on the above RFC, ALJ Armstead ultimately concluded Plaintiff was not disabled

under the Social Security Act.

III. MEDICAL RECORDS3

On May 9, 2007, Plaintiff underwent testing due to complaints of chronic low back pain. 

(R. at 147, 156.) Testing revealed “[b]ilateral par defects at L5 with grade 2 spondylolisthesis at

L5 S1 causing severe narrowing of both neuroforamina.” (Id.) 

Plaintiff began treating with primary care physician Saleem Khan, M.D., at least as early

as March 17, 2008. (R. at 153.) Upon initial examination, Plaintiff was 5'4" tall and weighed

196 pounds. (Id.) Plaintiff complained of various conditions including chronic low back pain

radiating to her right leg. (Id.) Dr. Khan’s diagnoses included diabetes mellitus, uncontrolled,

and lumbar spondylolisthesis with lumbar radiculopathy. (Id.) Additionally, testing at this time

suggested that Plaintiff had a ventilatory disorder with a risk of chronic obstructive pulmonary

disease (“COPD”) of greater than twenty-one percent. (R. at 160.) Plaintiff’s “estimated lung

age” at this time was ninety-three years. (R. at 160.) Later in March 2008, Dr. Khan requested

3

 In the November 2010 administrative decision, ALJ Brown found that Plaintiff had

severe mental impairments and assigned corresponding functional limitations. Plaintiff does not

appear to challenge these conclusions. Accordingly, the undersigned’s review of the medical

record will focus on Plaintiff’s physical impairments. 

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that Plaintiff undergo a consultation for lumbar radiculopathy. (R. at 145.) Treatment notes

from April 11, 2008 reflect that Plaintiff experienced some improvement on medication, but

demonstrated tenderness upon palpation. (R. at 152.)

On April 2, 2008, Plaintiff saw Arthur Neil Cole, M.D., with complaints of back and

right leg pain. (R. at 143.) Plaintiff indicated at this time that her back pain radiated into both

lower extremities and noted that standing aggravated her pain. (Id.) Plaintiff reported that she

smoked a half pack of cigarettes each day. (Id.) Plaintiff further indicated that injections had

not improved her symptoms. (Id.) Upon examination, Plaintiff was mildly tender to palpitation,

had a positive right straight leg test at thirty degrees, and had decreased sensory. (Id.) Dr.

Cole’s findings, however, also included that Plaintiff had full motor strength, no spasms, and a

normal gait. (Id.) Dr. Cole recommended x-rays. (R. at 144.) April 14, 2008, x-rays

demonstrated “[l]isthesis of L5 . . . [and] some mild degree of instability.” (R. at 146.) Dr. Cole

recommended that Plaintiff undergo a laminectomy and a posterolateral fusion. (R. at 141.)

Spirometric testing from July 2008 suggested that Plaintiff was still suffering from

ventilatory disorder with a risk of COPD at greater than twenty-one percent. (R. at 269.) 

Plaintiff’s estimated lung age at this time was 107 years. (Id.) On July 18, 2008, treatment

records from Dr. Khan’s office reflect that he diagnosed Plaintiff with COPD. (R. at 251.) 

In August 2008, Plaintiff went to the hospital complaining of abdominal pain. (R. at 186,

188.) She was diagnosed with pancreatitis. (Id.) Testing revealed “[n]o acute intra-abdominal

or cardiopulmonary process.” (R. at 191.)

On August 14, 2008, Dr. Khan’s notes reflect that Plaintiff’s lungs were clear, but he

continued to diagnose Plaintiff with COPD. (R. at 249.) In September 2008, Dr. Khan discussed

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the risk of continuing to smoke with Plaintiff. (R. at 288.) Treatment notes from October 10,

2008, reflect that Plaintiff refused any further consultation for surgery and wanted to be treated

with medication for her back pain. (R. at 245.) Plaintiff denied shortness of breath or chest pain

at this time, and examination revealed that her lungs were clear. (Id.) 

State agency physician Leslie Green, M.D., evaluated Plaintiff’s physical RFC in

October 2008 based on her review of the record. (R. at 214–21.) Dr. Green opined that Plaintiff

was capable of lifting twenty pounds occasionally and ten pounds frequently; standing and/or

walking for two hours in an eight-hour workday; and sitting for six hours in an eight-hour

workday. (R. at 215.) Dr. Green indicated that Plaintiff could never climb ladders, ropes, or

scaffolds; could occasionally climb stairs, balance, or crawl; and could frequently stoop, kneel,

or crouch. (R. at 216.) Dr. Green indicated that her RFC assessment adopted ALJ Armstead’s

October 25, 2007 determination pursuant to Drummond. (R. at 215.) She provided no further

analysis justifying her decision. On February 27, 2009, state agency physician Leigh Thomas,

M.D., affirmed Dr. Green’s decision. (R. at 240.) 

Plaintiff received regular treatment from Dr. Khan and his staff from November 2008

through at least February 2010. (R. at 273–86.) Plaintiff routinely denied shortness of breath

and chest pain, and Dr. Khan and his staff frequently found that Plaintiff’s lungs were clear. 

(Id.). Plaintiff, however, also received frequent diagnoses of COPD during this period. (Id.) In

May 2009, treatment records reflect that Plaintiff’s diabetes was uncontrolled and that Plaintiff

was non-compliant with her diet. (R. at 280.) Plaintiff received diabetic education. (Id.) On

September 16, 2009, Plaintiff underwent an electromyographic (“EMG”) examination for

evaluation of her low back and leg pain as well as her foot paresthesias. (R. at 272.) The EMG

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revealed radiculopathy and mild diabetic neuropathy. (Id.) In December 2009, Dr. Khan

diagnosed peripheral neuropathy. (R. at 275.) 

IV. EXPERT TESTIMONY

Vanessa Harris testified as a vocational expert at the October 2010 administrative

hearing. Ms. Harris identified Plaintiff’s past work as laundry operator, which she classified as

medium semi-skilled work, and molding machine tender, which she classified as light unskilled

work. (R. at 296–97.)

The ALJ then asked Ms. Harris to consider a hypothetical person who could perform a

reduced range of light work. (R. at 297.) The ALJ specifically limited such a person to standing

for two hours in a workday; sitting six hours in a workday; no continuous walking for more than

five minutes; unlimited pushing and pulling with upper extremities, but only occasional pushing

and pulling with lower extremities; no climbing ropes or scaffolds; occasional climbing of ramps

and stairs; frequent kneeling, crouching, and stooping; and occasional balancing and crawling. 

(Id.) The ALJ also limited this hypothetical person to no exposure to extremes of cold or work

on uneven or slippery surfaces. (Id.) Finally, the ALJ restricted this person to simple routine

repetitive tasks, superficial interaction with others, and no more than occasional changes in work

setting. (Id.)

Ms. Harris testified that such a person would not be able to perform Plaintiff’s past work. 

(Id.) Nevertheless, Ms. Harris found such a person capable of various light unskilled jobs. (R. at

298.) Ms. Harris also found such a person capable of some sedentary unskilled work including

paper inserter. (Id.) Ms. Harris further concluded that the additional limitation of no crawling,

and only occasional stooping, kneeling, or crouching would not affect her testimony. (Id.) 

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Precluding the hypothetical worker from hazardous machinery or unprotected heights also did

not affect Ms. Harris’ determinations. (Id.)

Plaintiff’s counsel questioned Ms. Harris about various sedentary jobs she identified. (R.

at 299–308.) Ms. Harris’ testimony included that a paper inserter is an individual who stuffs

envelopes. (R. at 307.)

V. ADMINISTRATIVE DECISION

On November 29, 2010, ALJ Bowen issued her decision.4

 (R. at 11–27.) The ALJ first

found that Plaintiff had not engaged in substantially gainful activity since April 7, 2008. (R. at

13.) The ALJ concluded, referencing the prior October 2007 decision, that Plaintiff has the

severe impairments of peripheral vascular disease; diabetes mellitus, under adequate control;

degenerative changes of the right ankle; and a lumbar vertebrogenic disorder. (R. at 13.) The

ALJ also added the severe impairments of moderate obesity; mood disorder; learning disorder;

and borderline intellectual functioning. (R. at 13.) The ALJ then determined that Plaintiff did

not have an impairment or combination of impairments that met or equaled one of the listed

impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 17.)

At step four of the sequential evaluation process, the ALJ concluded that Plaintiff could

perform a reduced range of light work. The ALJ specifically provided:

From the prior decision at all relevant times through December 31, 2005, . . .

[Plaintiff] was limited to standing 6 hours during an 8-hour workday with normal

breaks, with no continuous walking of more than 5 minutes followed by 5 minutes

cessation each time; unlimited pushing and pulling with the upper extremities, but

4

 In evaluating Plaintiff’s application for supplemental security income, the ALJ

considered the period from April 2008, the date of Plaintiff’s application, to September 2009,

when Plaintiff’s husband began receiving Veterans Administration benefits. (R. at 11.) Plaintiff

does not challenge the application of this time period.

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only occasionally with the lower extremities; no climbing of ladders, ropes or

scaffolds, but occasionally climbing ramps and stairs; frequent kneeling, crouching,

and stooping, but occasional balancing and crawling; no exposure to extremes of

cold or working on uneven or slippery surfaces; and she is limited to simple,

repetitive, i.e., unskilled, work tasks. Beginning January 1, 2006, the claimant is

additionally limited to sitting a total of 6 hours and standing/walking a total of 2

hours during an 8-hour workday, with the aforementioned limitation to 5 minutes of

walking followed by a cessation of 5 minutes each time, and she cannot perform

overhead reaching bilaterally.

With these modifications and clarifications from the current application: no operation

of foot controls; occasional stooping, kneeling, crouching, and crawling; no exposure

to hazardous machinery or unprotected heights; simple routine, repetitive tasks with

no more than occasional changes in the work setting; no time or production demands;

and only superficial interaction with others.

(R. at 20.) The ALJ suggested that she found the RFC determination of the prior administrative

decision to be binding as to Plaintiff’s RFC. (R. at 11.) The ALJ further stated that she gave the

opinions of Drs. Green and Thomas, who adopted the previous ALJ’s physical RFC pursuant to

Drummond, great weight regarding Plaintiff’s functional capacity. (R. at 11,14.) Furthermore,

in reaching her RFC determination, the ALJ acknowledged that a 2009 EMG had displayed

evidence of radiculopathy and peripheral neuropathy, but felt that the RFC she assigned fully

accommodated these conditions. (R. at 21.) The ALJ also noted that while Plaintiff’s diabetes

was at times uncontrolled, Dr. Khan’s notes reflected that Plaintiff was not compliant with her

diabetic diet. (Id.)

Applying the above RFC, the ALJ found that Plaintiff was not capable of performing her

past relevant work. The ALJ concluded, however, based on Ms. Harris’ testimony, that Plaintiff

could perform a significant number of jobs in the national economy and was, therefore, not

disabled. 

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VI. STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §

405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.

1994)).

Although the substantial evidence standard is deferential, it is not trivial. The Court must

“‘take into account whatever in the record fairly detracts from [the] weight’” of the

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial

evidence supports the [Commissioner’s] decision, this Court defers to that finding ‘even if there

is substantial evidence in the record that would have supported an opposite conclusion.’” Blakley

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.

1997)). Finally, even if the Commissioner’s decision meets the substantial evidence standard,

“‘a decision of the Commissioner will not be upheld where the SSA fails to follow its own

regulations and where that error prejudices a claimant on the merits or deprives the claimant of a

substantial right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d

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742, 746 (6th Cir. 2007)).

VII. LEGAL ANALYSIS

In her Statement of Errors, Plaintiff contends that ALJ Bowen erred in concluding that

she was bound by ALJ Armstead’s prior RFC determination. Plaintiff stresses that the record

contains significant new evidence that demonstrates changed circumstances. Upon review, the

undersigned agrees that, under the circumstances of this case, ALJ Bowen erred in finding that

she was bound by ALJ Armstead’s previous RFC determination.5

In Drummond, the United States Court of Appeals for the Sixth Circuit held that

principles of res judicata apply to both claimants and the Commissioner in Social Security cases. 

126 F.3d at 841–42. The Drummond Court specifically held that absent evidence of “changed

circumstances” relating to a claimant’s condition, “a subsequent ALJ is bound by the findings of

a previous ALJ.” Id. at 842. Accordingly, the Sixth Circuit reasoned that when an ALJ seeks to

deviate from a prior ALJ’s decision, “[t]he burden is on the Commissioner to prove changed

circumstances and therefore escape the principles of res judicata.” Id. at 843. Applying this

approach, the Drummond Court concluded that an ALJ was bound by a previous ALJ’s

determination that the claimant retained the RFC to perform sedentary work because the

evidence did not indicate that the claimant’s condition had improved. Id. at 843.

Following Drummond, both the Sixth Circuit and this Court have indicated that when a

claimant seeks to avoid application of a prior ALJ’s finding, he or she must produce evidence

demonstrating that his or her condition has worsened since the time of the prior determination. 

5

 Plaintiff also briefly challenges certain representations of the vocational expert. 

Because the undersigned concludes that the ALJ was not justified in applying Drummond, it is

unnecessary to reach this issue.

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See, e.g., Caudill v. Comm’r of Soc. Sec., 424 F. App’x 510, 515 (6th Cir. 2011) (holding that an

ALJ was justified, under Drummond, in adopting a previous ALJ’s finding that the claimant had

a “limited education” because the claimant “introduced no new or additional evidence with

respect to illiteracy versus limited education”) (internal quotations omitted); Holt v. Astrue, No.

1:10–cv–439, 2011 WL 3861891, at *7 (S.D. Ohio July 6, 2011) (“[B]ecause Plaintiff failed to

present any new and/or material evidence in the record that showed Plaintiff’s condition had

worsened since [the] previous unfavorable decision, [the ALJ] acted properly by following

Drummond and . . . adopting said decision.”) (Report and Recommendation later adopted); cf.

also Salsgiver v. Comm’r of Soc. Sec. Admin., No. 1:11–CV–351, 2012 WL 2344095, at *12

(N.D. Ohio June 20, 2012) (“It is the claimant’s burden to present evidence showing that her

symptoms have changed since the time of the Commissioner’s prior determination obviating the

application of the ruling in Drummond.”).

Additionally, the Social Security Administration issued an Acquiescence Ruling

following Drummond. Specifically, in light of Drummond, Social Security Acquiescence Ruling

98–4(6) mandates as follows:

When adjudicating a subsequent disability claim with an unadjudicated period

arising under the same title of the Act as the prior claim, adjudicators must adopt

such a finding from the final decision by an ALJ or the Appeals Council on the prior

claim in determining whether the claimant is disabled with respect to the

unadjudicated period unless there is new and material evidence relating to such a

finding or there has been a change in the law, regulations or rulings affecting the

finding or the method for arriving at the finding.

AR 98–4(6), 1998 WL 283902, at *3 (June 1, 1998). Within the Social Security context,

evidence is generally considered to be material if there is a reasonable probability that the

Commissioner would have reached a different decision if he or she had considered the new

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evidence. Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 276 (6th Cir. 2010).

In this case, ALJ Bowen applied Drummond and concluded that she was bound by ALJ

Armstead’s physical RFC determination that Plaintiff could perform a reduced range of light

work. (See R. at 11, 20.) In addition to explicitly finding that the Dummond holding applied,

she gave great weight to the state agency reviewing physician opinions of Drs. Green and

Thomas, who evaluated Plaintiff’s physical functional capacity and adopted ALJ Armstead’s

physical RFC finding pursuant to Drummond. (R. at 14.) 

The undersigned finds that ALJ Bowen erred in applying Drummond under the

circumstances of this case. Viewing the medical records as a whole, and comparing this

evidence to ALJ Armstead’s prior written decision and findings, significant new evidence

suggests that Plaintiff’s impairments worsened since the prior RFC determination. 

First, the record contains at least some evidence of new impairments that the previous

decision did not consider. Specifically, on two occasions, spirometric testing suggested that

Plaintiff had a ventilatory disorder and an estimated lung age well in excess of her actual age. 

(R. at 160, 269.) Dr. Khan and his staff diagnosed Plaintiff with COPD on multiple occasions. 

(See, e.g., R. at 279, 282, 284.) There is no indication from the October 2007 decision, however,

that ALJ Armstead accounted for this condition. Although the evidence may not ultimately

reflect that Plaintiff’s lung condition is severe, as the Commissioner contends, the ALJ was still

required to account for all of Plaintiff’s impairments, both severe and non-severe, in assessing

her RFC. See Simpson v. Comm’r of Soc. Sec., 344 F. App’x 181, 190 (6th Cir. 2009) (holding

that once a claimant establishes a severe impairment, an ALJ must “consider both the severe and

non-severe impairments in the remaining steps”). Furthermore, the ALJ herself recognized that

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Plaintiff had an additional severe impairment that the previous decision did not consider,

moderate obesity. (R. at 13.) The fact that ALJ Bowen found a new severe impairment implies

that Plaintiff’s condition had deteriorated on some level. See Salsgiver, 2012 WL 2344095, at

*13 (holding, in considering the application of Drummond, that “the ALJ’s recognition of . . .

additional severe impairments suggests that Plaintiff’s overall condition had further deteriorated

to some degree since the prior ALJ’s ruling”).

Perhaps most importantly, the medical evidence indicates that Plaintiff’s diabetes and

back impairments worsened after the first ALJ issued his decision. Within the prior decision,

ALJ Armstead emphasized that Plaintiff’s diabetes was under adequate control. Although ALJ

Armstead recognized that testing showed spondylolisthesis, in assigning an RFC he stressed that

there was no evidence of nerve root compression or radiculopathy. New evidence within the

current record conflicts with these findings. In particular, a September 2009 EMG revealed

diabetic peripheral neuropathy, a condition ALJ Armstead did not consider in determining that

Plaintiff’s diabetes was adequately controlled. (R. at 272.) Additionally, on at least two

occasions, Dr. Khan’s treatment notes reflect that Plaintiff’s diabetes was uncontrolled. (R. at

153, 280.) In addition to diabetic neuropathy, the September 2009 EMG revealed radiculopathy,

a condition which ALJ Armstead explicitly indicated was not present in the prior record. (R. at

272.) Dr. Khan also diagnosed lumbar radiculopathy on at least one occasion. (R. at 153.) 

Accordingly, especially in light of the September 2009 EMG, ALJ Bowen was not justified in

concluding that Plaintiff’s conditions had not significantly changed. See Ray v. Astrue, No.

1:11–cv–194, 2012 WL 2160826, at *3–5 (S.D. Ohio June 13, 2012) (holding that an ALJ erred

in applying Drummond when he failed to account for MRI results from after the prior

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administrative decision) (Report & Recommendation later adopted).

Furthermore, the state agency physician opinions, at least in their current form, do not

provide adequate support for ALJ Bowen’s determination that she was bound by the prior RFC

determination. As detailed above, in October 2008 Dr. Green opined that the prior October 2007

physical RFC should apply pursuant to Drummond. (R. at 215.) Dr. Thomas affirmed this

decision in February 2009. (R. at 240.) The Court recognizes that whether new medical

evidence demonstrates significantly changed circumstances ultimately involves a medical

judgment. Accordingly, a medical expert opinion that a prior RFC determination should be

adopted would likely be strong evidence if that expert considered all of the new evidence a

claimant offered. Here, however, the opinions of Drs. Green and Thomas are both highly

conclusory. It is unclear what portions of the current medical record these physicians actually

considered in applying the prior RFC determination. At the very least, it is clear that these

physicians did not consider the September 2009 EMG results. Under these circumstances, these

opinions did not provide adequate grounds for applying Drummond to Plaintiff’s physical RFC.

Nor was the ALJ entitled to rely on her own medical opinion to account for the new

evidence. Although ALJ Bowen explicitly stated that she was applying Drummond, she also

summarized much of the new evidence in the record and assigned a few additional functional

limitations to Plaintiff’s RFC. The ALJ explicitly referenced the 2009 EMG findings of

radiculopathy and neuropathy, but concluded that the new evidence was not significant enough

to alter her RFC determination. (R. at 21.) The ALJ further recognized that Plaintiff’s diabetes

was at times uncontrolled, but opined that the effects of Plaintiff’s diabetes would “be reduced if

she lost weight and brought her sugar levels under control.” (Id.) The ALJ did not cite any

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supporting medical opinion evidence for these conclusions. Instead, these determinations appear

to be based on her own interpretation of the evidence. 

Regardless of whether the ALJ made the above observations to support her application of

Drummond or as an independent basis for her RFC findings, substantial evidence does not

support her conclusions. In considering medical evidence, “‘ALJs must not succumb to the

temptation to play doctor and make their own independent medical findings.’” Simpson v.

Comm’r of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 F.3d

966, 970 (7th Cir. 1996)); see also Isaacs v. Astrue, No. 1:08–CV–00828, 2009 WL 3672060, at

*10 (S.D. Ohio Nov. 4, 2009) (holding that an “ALJ may not interpret raw medical data in

functional terms”) (internal quotations omitted). Here, the ALJ was not entitled to rely on her

own lay opinion to interpret new medical evidence—including the September 2009 EMG

results—and conclude that the RFC she assigned accounted for any new or worsened

impairments. Although the ALJ may ultimately be correct that her RFC assignment accounts for

the new medical evidence, the current record does not provide adequate support for this

determination. Cf. Brewer v. Astrue, No. 1:10–cv–01224, 2011 WL 2461341, at *6 (N.D. Ohio

June 17, 2011) (“Although the ALJ's assumption appears reasonable to a lay person and might

ultimately be correct, he has no special expertise to make such an assumption.”).

VIII. CONCLUSION

For the foregoing reasons, it is RECOMMENDED that the Court REMAND this case

for further consideration.

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IX. NOTICE

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation

omitted)).

Date: August 10, 2012 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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