Thomas-Joseph v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JOEANNE M THOMAS-JOSEPH,

Plaintiff,

v. Case No.: 2:19-cv-681-FtM-MRM

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

/

OPINION AND ORDER

Plaintiff Joeanne M. Thomas-Joseph, proceeding pro se, filed a Complaint on

September 17, 2019. (Doc. 1). Plaintiff seeks judicial review of the final decision of

the Commissioner of the Social Security Administration (“SSA”) denying her claim

for a period of disability and disability insurance benefits (“DIB”). The

Commissioner filed the transcript of the administrative proceedings (hereinafter

referred to as “Tr.” followed by the appropriate page number), and the parties filed

separate memoranda detailing their respective positions. (Docs. 17; 18; 19).1 The

parties consented to proceed before a United States Magistrate Judge for all

purposes. (Docs. 20, 22).

1 Plaintiff initially filed an unsigned memorandum on April 30, 2020. (Doc. 17).

On May 26, 2020, Plaintiff submitted a signed memorandum. (Doc. 19). The Court

considers the May 26, 2020 memorandum the operative document.

Based on the parties’ memoranda, the Court ordered supplemental briefing on

whether Plaintiff has administratively exhausted her remedies regarding her non-

medical supplemental security income (“SSI”) eligibility and whether substantial

evidence supports the SSA’s decision to provide Plaintiff a monthly SSI award of

$0.00. (Doc. 23). In response to the Court’s Order, Defendant filed Defendant’s

Response to this Court’s Order and Motion to Dismiss Allegations in Plaintiff’s

Complaint, arguing that this Court does not have subject matter jurisdiction over the

issue of Plaintiff’s non-medical SSI eligibility. (Doc. 24). Plaintiff filed two

responses in opposition. (Docs. 26, 27).

The Court will consider Defendant’s motion and Plaintiff’s appeal in turn

below, beginning by summarizing the pertinent background relating to both issues.

The Court considers Defendant’s motion to dismiss first because it relates to the

Court’s jurisdiction over allegations in Plaintiff’s Complaint and memorandum. For

the reasons set forth herein, Defendant’s Response to this Court’s Order and Motion

to Dismiss Allegations in Plaintiff’s Complaint (Doc. 24) is GRANTED and the

decision of the Commissioner is AFFIRMED pursuant to § 205(g) of the Social

Security Act, 42 U.S.C. § 405(g).

I. Background

A. Social Security Act Eligibility

The law defines disability as the inability to do any substantial gainful activity

by reason of any medically determinable physical or mental impairment that can be

expected to result in death or that has lasted or can be expected to last for a

continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A),

1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The impairment must be severe,

making the claimant unable to do her previous work or any other substantial gainful

activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3); 20

C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of

persuasion through step four, while the burden shifts to the Commissioner at step

five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

B. Procedural History

Plaintiff filed an application for DIB and SSI on March 12, 2018, alleging a

disability onset date of September 25, 2008. (Tr. at 107). That claim was denied

initially on September 25, 2018, and upon reconsideration on July 2, 2018. (Id. at

208; 218). Thereafter, Plaintiff requested a hearing before an Administrative Law

Judge (“ALJ”) and ALJ Eric Anschuetz held that hearing on April 18, 2019. (Id. at

123-71). ALJ Anschuetz issued a partially favorable decision on May 21, 2019. (Id.

at 104). The Appeals Council denied Plaintiff’s request for review on August 22,

2019. (Id. at 1-5). Plaintiff then filed her Complaint with this Court on September

17, 2019. (Doc. 1).

C. Summary of the Administrative Law Judge’s Decision

An ALJ must follow a five-step sequential evaluation process to determine if a

claimant has proven that she is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x

890, 891 (11th Cir. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)).

An ALJ must determine whether the claimant: (1) is performing substantial gainful

activity; (2) has a severe impairment; (3) has a severe impairment that meets or

equals an impairment specifically listed in 20 C.F.R. Part 404, Subpart P, Appendix

1; (4) can perform her past relevant work; and (5) can perform other work of the sort

found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th

Cir. 2004). The claimant has the burden of proof through step four and then the

burden shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511

F. App’x 913, 915 n.2 (11th Cir. 2013).

The ALJ determined that Plaintiff met the insured status requirements of the

Social Security Act through December 31, 2009. (Tr. at 109). At step one of the

sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial

gainful activity since September 25, 2008, the alleged onset date. (Id.). At step two,

the ALJ determined that “[p]rior to March 12, 2018, the date the claimant became

disabled, there were no medical signs or laboratory findings to substantiate the

existence of a medically determinable impairment (20 [C.F.R. §§] 404.1520(c) and

416.920(c)).” (Id.). Nevertheless, beginning March 12, 2018, the ALJ found that

Plaintiff had the following severe impairments: “uncontrolled type 2 diabetes

mellitus; schizophrenia, paranoid type and posttraumatic stress disorder (PTSD) (20

[C.F.R. §§] 404.1520(c) and 416.920(c)).” (Id. at 110).

At step three, the ALJ determined that since March 12, 2018, Plaintiff did not

have “an impairment or combination of impairments that meet or medically equal

the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P,

Appendix 1 (20 [C.F.R. §§] 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925

and 416.926).” (Id.).

At step four, the ALJ found that since March 12, 2018, Plaintiff has the

residual functional capacity (“RFC”):

[T]o perform light work as defined in 20 [C.F.R. §§]

404.1567(b) and 416.967(b) except she can lift and carry 20

pounds occasionally and 10 pounds frequently; stand

and/or walk for 6 hours out of an 8 hour workday; sit for 6

hours out of an 8 hour workday; never climb ladders, ropes

or scaffolding; frequently climb ramps and stairs; frequently

balance, stoop, kneel, crouch and crawl; must avoid work

place hazards, such as unprotected heights and unshielded

rotating machinery; limited to simple, routine, repetitive

tasks; and have occasionally [sic] interaction with

supervisors coworkers and the public.

(Id. at 111). The ALJ also determined that since March 12, 2018, Plaintiff “has been

unable to perform any past relevant work (20 [C.F.R. §§] 404.1565 and 416.965).”

(Id. at 113). At step five, the ALJ found that “[s]ince March 12, 2018, considering

[Plaintiff’s] age, education, work experience, and [RFC], there are no jobs that exist

in significant numbers in the national economy that the claimant can perform (20

[C.F.R. §§] 404.1560(c), 404.1566, 416.960(c), and 416.966).” (Id.).

For these reasons, the ALJ ultimately determined that Plaintiff “was not

disabled prior to March 12, 2018, (20 [C.F.R. §§] 404.1520(c) and 416.920(c)) but

became disabled on that date and has continued to be disabled through the date of

this decision (20 [C.F.R. §§] 404.1520(g) and 416.920(g))” and that she was,

therefore, “not under a disability within the meaning of the Social Security Act at

any time through December 31, 2009, the date last insured (20 [C.F.R. §§] 404.315(a)

and 404.3 20(b)).” (Id. at 114). Accordingly, for the purposes of DIB, the ALJ found

that Plaintiff was not disabled, but for the purposes of SSI, the ALJ found she was

disabled beginning March 12, 2018. (Id.).

D. Plaintiff’s SSI Award

Following the determination that Plaintiff was medically eligible for SSI, the

SSA sent a Notice of Award letter dated June 7, 2019. (Doc. 24-2). Specifically, the

Notice of Award letter states that on May 16, 2019, the SSA found that Plaintiff met

the medical requirements to receive SSI and that it now finds Plaintiff meets the non-

medical requirements. (Id. at 1). The letter notes that Plaintiff is, therefore, entitled

to SSI. (Id.). The letter notes, however, that Plaintiff will receive $0.00 until “there

is a change in the information [the SSA] use[s] to determine [Plaintiff’s] SSI

eligibility and payment amount.” (Id.).

II. Defendant’s Response to this Court’s Order and Motion to Dismiss

Allegations in Plaintiff’s Complaint

A. The Parties’ Arguments

In her Complaint and memoranda on appeal, Plaintiff challenges the amount

of her monthly SSI award. Specifically, Plaintiff appears to argue that in

determining her award, the SSA relied on her ex-husband’s income but due to their

divorce, his income should not impact Plaintiff’s non-medical eligibility. (See Doc.

19 at 3).

In the motion to dismiss, Defendant begins by summarizing the pertinent

procedural history. (Doc. 24 at 2-3). Defendant notes that the ALJ’s decision

explicitly stated that “[a]nother office will process [his] decision and decide if

[Plaintiff] meet[s] the non-disability requirements for [SSI] payments” (Id. (final

alteration in original) (quoting Tr. at 104)). Defendant notes that the ALJ reiterated

this sentiment at the end of his decision by stating: “The component of the [agency]

responsible for authorizing [SSI] will advise [Plaintiff] regarding the nondisability

[sic] requirements for these payments, and if eligible, the amount and the months for

which payment will be made.” (Id. at 3 (alterations in original) (quoting Tr. at 114)).

Defendant continues that Plaintiff completed a “Preeffecuation [sic]” and was found

to be eligible for one month of SSI but, due to her spouse’s income, she was not

eligible for any additional payments. (Id. (citing Doc. 24-1 at 2; Doc. 24-2 at 2)).

Defendant also maintains that Plaintiff’s June 7, 2019 Notice of Award letter, as

described above, “advised Plaintiff that if she disagreed with the determination, she

could file a request for reconsideration.” (Id. (citing Doc. 24-1 at 2; Doc. 24-2 at 2)).

Defendant notes that Plaintiff filed her Request for Reconsideration on June 14,

2019, but that the request remains pending before the SSA. (Id. (citing Doc. 24-1 at

1)).

Defendant asserts that Plaintiff failed to show that the Court has subject

matter jurisdiction over the allegations relating to her non-medical SSI eligibility

because she has not exhausted her administrative remedies. (Id.). In support,

Defendant essentially contends that the exclusive jurisdictional basis for judicial

review of cases arising under the Social Security act is 42 U.S.C. § 405(g), which

grants the Court jurisdiction over “final decision[s] of the Commissioner of Social

Security made after a hearing.” (See id. at 5-6 (citations omitted)). Moreover,

Defendant maintains that to constitute a final order, a claimant usually must have

received “an initial determination, a reconsideration determination, a hearing

decision by an ALJ, and discretionary review by the Appeals Council.” (Id. at 7

(citing 20 C.F.R. § 416.1400(a)(1)-(5))). Given these regulations, Defendant argues

that Plaintiff cannot establish subject matter jurisdiction because her request for

reconsideration is still pending. (Id. at 8). Defendant clarifies that “[a]lthough

Plaintiff exhausted her administrative remedies with regard to her disability status

(the ALJ found that Plaintiff was disabled for purposes of SSI, but not for purposes

of DIB), the regulations require her to follow the administrative appeals process with

regard to the June 7, 2019 initial determination on SSI income issues.” (Id. (citing 20

C.F.R. § 416.1402(a), (i))).

Moreover, Defendant maintains that the judicial review of an agency action

involving an individual’s eligibility for SSI is not permitted “absent administrative

exhaustion, even if the individual challenges the agency’s denial on ‘evidentiary, rule

related, statutory, constitutional, or other legal grounds.’” (Id. at 9 (quoting Shalala

v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 10 (2000); citing 42 U.S.C. §

405(g), (h); Weinberger v. Salfi, 422 U.S. 749, 762 (1975); Cochran v. U.S. Health Care

Fin. Admin., 291 F.3d 775, 779-80 (11th Cir. 2002))). Nevertheless, Defendant

concedes that “Courts may excuse exhaustion of administrative remedies if a

plaintiff raises a colorable constitutional claim” or in other special cases, “such as

where the claimant raises a challenge wholly collateral to h[er] claim for benefits and

makes a colorable showing that her injury could not be remedied by the retroactive

payment of benefits after exhaustion.” (Id. at 9-10 (citing Heckler v. Ringer, 466 U.S.

602, 618 (1984); Califano v. Sanders, 430 U.S. 99, 109 (1977))). Defendant maintains,

however, that Plaintiff did not raise a colorable constitutional claim or otherwise

allege a basis for this Court to excuse her failure to exhaust her administrative

remedies. (Id. at 10). Thus, Defendant argues that the Court should dismiss the

allegations in Plaintiff’s Complaint relating to her non-medical SSI eligibility. (Id.).

In response, Plaintiff requests that the Court make a “compassionate

allowance due to the escalation of needing medical, personal, psychological services

and resources to make the necessary lifestyle changes to reduce and maintain a

controllable level of care.” (Doc. 27 at 1 (emphasis omitted)). Plaintiff appears to

argue that she raised a colorable constitutional claim because of the injuries she

endured and sustained. (See id.). Additionally, Plaintiff argues that had Defendant

applied due process, she would not be totally and permanently disabled. (Id. at 2-3).

As a result, Plaintiff requests that the Court order retroactive compensation and other

damages. (Id. at 2).2

2 Plaintiff also requests “$9,999,999.99 or an amount the [C]ourt deem fair and just

in damages.” (Doc. 27 at 2). Because this relief is inappropriate in an action seeking

judicial review of a Social Security determination, the Court declines to address or to

grant this request.

Further, Plaintiff appears to argue that she has provided exhibits that show the

Court has subject matter jurisdiction over the issue. (See id. at 2-4 (citing Docs. 27-1

through 27-50)). Additionally, Plaintiff essentially concedes that the request for

reconsideration is still pending but takes issue with the fact that it has been pending

since June 2019. (See id. at 2-3).

Ultimately, Plaintiff objects to the various arguments Defendant made in the

motion to dismiss and provides supplemental materials in an attempt to show that

the Court has jurisdiction over the SSI issue. (See id. at 3-8). As far as the Court can

decipher, Plaintiff concedes the Request for Reconsideration is pending, but argues

that due process has not been followed because she has attempted but been unable to

update her filings and her case review has not occurred. (See id. at 6-7).

Additionally, Plaintiff maintains that she complied with any protocols necessary to

give the Court subject matter jurisdiction over the SSI issue. (Id. at 6-8). Finally, in a

supplemental filing – filed without leave of the Court – Plaintiff argues that the Court

should find in Plaintiff’s favor because Defendant put the wrong case number on his

Motion. (Doc. 28 at 1).

B. Applicable Legal Standards

Federal courts are courts of limited jurisdiction. “[B]ecause a federal court is

powerless to act beyond its statutory grant of subject matter jurisdiction, a court must

zealously insure that jurisdiction exists over a case, and should itself raise the

question of subject matter jurisdiction at any point in the litigation where a doubt

about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001).

The burden of establishing the existence of federal subject matter jurisdiction lies

with the party that brings the claim. Sweet Pea Marine, Ltd. V. APJ Marine, Inc., 411

F.3d 1242, 1248 n.2 (11th Cir. 2005).

A motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ.

P. 12(b)(1) can be based upon either a facial or factual challenge to the complaint.

McElmurray v. Consol. Gov’t of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir.

2007); Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981). A facial attack on a

complaint “require[s] the court merely to look and see if [the] plaintiff has

sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his

complaint are taken as true for the purposes of the motion.” McElmurray, 501 F.3d

at 1251 (alterations in original) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529

(11th Cir. 1990)). In that situation, “the plaintiff is left with safeguards similar to

those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is

raised,” and the Court must consider the allegations in the plaintiff’s complaint as

true. Id. (citing Williamson, 645 F.2d at 412).

If Defendant’s attack on a complaint challenges subject matter jurisdiction in

fact, the Court may consider facts outside the pleadings and is “free to weigh the

evidence and satisfy itself as to the existence of its power to hear the case.” Lawrence,

919 F.2d at 1529 (quoting Williamson, 645 F.2d at 412). Here, Defendant appears to

challenge the subject matter jurisdiction in fact, and the Court, therefore, weighs the

evidence to determine whether it has power to hear the allegations relating to

Plaintiff’s non-medical SSI eligibility. See id.

C. Analysis

The United States “‘is immune from suit save as it consents to be sued,’ and

Congress alone determines how and when the United States may be sued for judicial

review of administrative orders and judgments.” Jackson v. Astrue, 506 F.3d 1349,

1352-53 (11th Cir. 2007) (quoting Lehman v. Nakshian, 453 U.S. 156, 160 (1981)).

Pursuant to 42 U.S.C. § 405(g), Congress waived sovereign immunity and gave

courts the authority to review, modify, or reverse the Commissioner’s decisions. Id.

at 1353. The remedies enumerated in the statute are the sole source of federal

jurisdiction in social security disability cases. Id. (citing 42 U.S.C. § 405(h) (“No

findings of fact or decision of the Commissioner of Social Security shall be reviewed

by any person, tribunal, or governmental agency except as herein provided.”)).

Section 405(g) provides in pertinent part as follows:

Any individual, after any final decision of the

Commissioner of Social Security made after a hearing to

which he was a party, irrespective of the amount in

controversy, may obtain a review of such decision by a civil

action commenced within sixty days after the mailing to

him of notice of such decision or within such further time

as the Commissioner of Social Security may allow.

42 U.S.C. § 405(g). Thus, judicial review is limited to review of a final decision made

by the Commissioner after a hearing. See Bello v. Comm’r of Soc. Sec., 460 F. App’x

837, 839 (11th Cir. 2012) (citing 42 U.S. C. § 405(g)). “On its face [§] 405(g) thus

bars judicial review of any denial of a claim of disability benefits until after a ‘final

decision’ by the Secretary after a ‘hearing.’” Mathews v. Eldridge, 424 U.S. 319, 328

(1976). Implicit in this requirement is:

the principle that this condition consists of two elements,

only one of which is purely “jurisdictional” in the sense that

it cannot be “waived” by the Secretary in a particular case.

The waivable element is the requirement that the

administrative remedies prescribed by the Secretary be

exhausted. The nonwaivable element is the requirement

that a claim for benefits shall have been presented to the

Secretary. Absent such a claim there can be no “decision”

of any type. And some decision by the Secretary is clearly

required by the statute.

Id. If the non-waivable element is satisfied, then the Court must consider whether a

claimant received a “sufficiently” “final” decision with respect to her “constitutional

claim to satisfy the statutory exhaustion.” Id. at 330. Thus, the Commissioner may

waive the exhaustion requirements “if he satisfies himself, at any stage of the

administrative process, that no further review is warranted either because the internal

needs of the agency are fulfilled or because the relief that is sought is beyond his

power to confer.” Id.; see also Counts v. Comm’r of Soc. Sec., No. 6:09-CV-2157-ORL,

2010 WL 5174498, at *5 (M.D. Fla. Dec. 15, 2010).

The Social Security Act does not define “final decision,” “instead leaving it to

the Commissioner to give meaning to that term through regulations.” Bello, 460 F.

App’x at 839 (citing Sims v. Apfel, 530 U.S. 103, 106 (2000)). Under the

Commissioner’s regulations, to satisfy the requirements of finality of an SSI claim, a

claimant must pursue all of the four-step administrative review processing including:

(1) an initial determination; (2) a reconsideration determination; (3) a hearing

decision by an ALJ; and (4) a discretionary review by the Appeals Council. Morrison

v. Astrue, No. 8:11-CV-1147-T-17TBM, 2012 WL 3668070, at *3 (M.D. Fla. June 9,

2012), report and recommendation adopted, No. 8:11-CV-1147-T-TBM, 2012 WL

3655346 (M.D. Fla. Aug. 24, 2012) (citing 20 C.F.R. § 416.400). Nevertheless, a

court may still have jurisdiction over a decision without a final decision after a

hearing if Plaintiff raises a colorable constitutional claim; and the decision is

reconsidered to any extent at an administrative level. Loudermilk v. Barnhart, 290

F.3d 1265, 1268 (11th Cir. 2002); Califano v. Sanders, 430 U.S. 99, 109 (1977); Sherrod

v. Chater, 74 F.3d 243, 245 (11th Cir. 1996).

It is clear to the Court that the SSA has not made a final determination on

Plaintiff’s non-medical SSI eligibility. Plaintiff received her Notice of Award letter

on June 7, 2019. (Doc. 24-2 at 1). Plaintiff filed a Request for Reconsideration of

the issue on June 14, 2019. (Doc. 27-46 at 1). Plaintiff has provided no

documentation that the SSA has made a decision at the reconsideration level. (See

Doc. 27). In contrast, Defendant provided a signed declaration from Shaun Bass,

Policy Analyst Specialist on the SSI Program Team in the SSA’s Center for

Disability and Programs Support for the Atlanta Region, in which he states that he

has become familiar with Plaintiff’s case. (Doc. 24-1). Mr. Bass avers that Plaintiff’s

non-medical SSI eligibility is still pending at the reconsideration level. (Id. at 3).

Furthermore, Plaintiff filed her request for the Appeals Council review the

ALJ’s decision on or around June 18, 2019. (Tr. at 292).3 Considering Plaintiff’s

3 Although the Court cannot decipher the date Plaintiff signed the Request for

Review of Hearing Decision/Order, the document indicates that it was received on

June 18, 2019. (Tr. at 292).

initial determination of her non-medical SSI eligibility was not made until June 7,

2019, it could not practicably have been ripe for the Appeals Council’s discretionary

review fewer than eleven days later. (Compare Doc. 24-2 with Tr. at 292).4

Because Plaintiff has otherwise provided no documentation that a final

decision has been made on her non-medical SSI eligibility, the Court finds that

Plaintiff has not met her burden to prove that she has exhausted her administrative

remedies such that the Court has subject matter jurisdiction under 42 U.S.C. §

405(g). See Sweet Pea Marine, Ltd., 411 F.3d at 1248 n.2.

Plaintiff also argues, however, that she has raised a colorable constitutional

claim based on the alleged due process violations. (See Doc. 27 at 1, 7). It appears

that Plaintiff contends that her due process rights were violated because there has

been a substantial passage of time since she filed her Request for Reconsideration or

because the SSA has otherwise failed to follow their own rules and regulations. (See

id.). Notably, Plaintiff cites no case law in support of her position, (see id. at 1-10),

and the Court otherwise finds her argument lacks merit. Although the Court notes

that it seems that the SSA has taken an unusually long time to render a

determination on the reconsideration level, this does not amount to a violation of

Plaintiff’s due process rights. If and when Plaintiff’s monthly SSI award is found to

4 Plaintiff notes she originally faxed the request on June 3, 2019, which was before

she had received the June 7, 2019 Notice of Award Letter. (Doc. 27-41 at 1). She

asserts that she also requested a “Case Review,” which the Court understands to be

the Case Review of the non-medical SSI eligibility. Any such request, however, was

premature as she had not yet received the Notice of Award letter.

be $0.00 at the reconsideration level, Plaintiff can seek a hearing before an ALJ; if

the ALJ again determines that Plaintiff’s monthly allowance is $0.00, Plaintiff will be

able to request the that Appeals Council review the determination. See 20 C.F.R. §

416.1400 (a)(1)-(5). Thus, although Plaintiff seems to question the time frame of the

determination, the Court cannot conclude that the SSA following their own statutory

procedure violates Plaintiff’s due process rights. Accordingly, Plaintiff has not

shown that she has a colorable constitutional claim such that the Court can find that

it has subject matter jurisdiction despite Plaintiff’s failure to exhaust her

administrative remedies.

In sum, the Court finds that Plaintiff has not met her burden to prove that the

Court has subject matter jurisdiction over the allegations in her Complaint related to

her non-medical SSI eligibility. Accordingly, the Court finds that Defendant’s

Response to this Court’s Order and Motion to Dismiss Allegations in Plaintiff’s

Complaint (Doc. 24) is due to be granted.

III. Plaintiff’s Appeal of the Commissioner’s Decision

In light of the foregoing, the only issue properly before this Court is whether

substantial evidence supports the ALJ’s determination that Plaintiff was not under a

disability before the date last insured, and the Court, therefore, considers only

Plaintiff’s appeal of that issue.

A. Standard of Review

The scope of this Court’s review is limited to determining whether the ALJ

applied the correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.

1988), and whether the findings are supported by substantial evidence, Richardson v.

Perales, 402 U.S. 389, 390 (1971). The Commissioner’s findings of fact are

conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial

evidence is more than a scintilla—i.e., the evidence must do more than merely create

a suspicion of the existence of a fact, and must include such relevant evidence as a

reasonable person would accept as adequate to support the conclusion. Foote v.

Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,

838 (11th Cir. 1982); Richardson, 402 U.S. at 401).

Where the Commissioner’s decision is supported by substantial evidence, the

district court will affirm, even if the reviewer would have reached a contrary result as

finder of fact, and even if the reviewer finds that “the evidence preponderates

against” the Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3

(11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district

court must view the evidence as a whole, taking into account evidence favorable as

well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord Lowery v. Sullivan,

979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to

determine reasonableness of factual findings).

B. Analysis

Having already determined that Plaintiff’s non-medical SSI eligibility is not

properly before this Court, there is only one issue on appeal: whether “substantial

evidence supports the ALJ’s decision that Plaintiff was not disabled prior to

December 31, 2009.” (See Doc. at 18 at 4). The Court addresses the issue below by

first summarizing the parties’ arguments, then reciting the applicable legal standards,

before addressing the ALJ’s opinion.

Plaintiff appears to argue that the ALJ issued a fully favorable decision at the

hearing, but that the letter detailing the decision was not fully favorable. (See Doc.

19 at 2). Plaintiff contends that she questioned the discrepancy and was told the ALJ

was mistaken. (Id.).

In response, Defendant argues that although “Plaintiff allege[s] that she could

not perform any substantial gainful activity beginning on September 25, 2008,” she

has not met her burden of proof. (Doc. 18 at 4). In support, Defendant maintains

that there is only one medical examination from the time between September 25,

2008 – the alleged onset date – and December 31, 2009 – the date last insured. (Id. at

5). Specifically, Defendant notes that on July 21, 2009, Dr. Sherif Hassan examined

Plaintiff and diagnosed her with obesity, hyperlipidemia, possible irritable bowel

syndrome, and vaginosis but that the record shows that Plaintiff had not sought

treatment for these conditions for the years preceding and following the July 2009

examination. (Id. at 5, 6 (citing Tr. at 513-14)). Additionally, Defendant notes that

three separate individuals – a non-medical source, a State agency psychologist, and a

State agency physician – determined that there was insufficient evidence to support a

claim of disability prior to the date last insured. (Id. at 5 (citing Tr. at 173-76, 186-

94)). Finally, Defendant argues that the medical evidence dated several years after

December 31, 2009, is not relevant to her DIB application. (Id. at 6). Thus,

Defendant maintains that the ALJ’s decision is supported by substantial evidence

and should be affirmed. (Id. at 7).

“For DIB claims, a claimant is eligible for benefits where she demonstrates

disability on or before the last date for which she [was] insured.” Moore v. Barnhart,

405 F.3d 1208, 1211 (11th Cir. 2005) (citing 42 U.S.C. § 423(a)(1)(A)). Thus, “[a]

claimant that becomes disabled after he loses insured status must be denied [DIB]

despite his disability.” Douglas v. Comm’r of Soc. Sec., 486 F. App’x 72, 75 (11th Cir.

2012) (citing Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir. 1979)).

Nevertheless, an ALJ may consider evidence before and after the relevant time

period to the extent the evidence has a bearing on the claimant’s disability during the

relevant time. Id.

As to the relevant time period, the ALJ found that “[t]he record contains

limited medical evidence relative to the claimant’s alleged onset date of disability.”

(Tr. at 110). In support, the ALJ summarized the records according to their time

period:

Exhibit lF [Tr. at 470-97] contains outpatient records

covering the period March 2000 through September 2002,

which is irrelevant to the period at issue. On July 21, 2009,

the claimant was evaluated at Maryland Urgent Care, for a

full physical. Records reflect a BMI of 33.48. Sherif

Hassan, M.D., examined the claimant and found

hyperlipidemia; abdominal pain probably due to irritable

bowel syndrome and bacterial vaginosis ([Tr. at 513]).

There is no additional evidence in the record dated prior to

May 10, 2018.

(Id.). Thus, the ALJ concluded that “there were no medical signs or laboratory

findings to substantiate the existence of a medically determinable impairment prior

to the established onset date of disability,” that is March 12, 2018. (Id.).

The ALJ also addressed the insufficiency of the record during the relevant

time period at the hearing. Specifically, Plaintiff clarified that the ALJ was “going to

award [disability] based on when [she] applied.” (Id. at 168). The ALJ confirmed

Plaintiff’s understanding, stating that she would be found disabled beginning March

12, 2018, because the ALJ did not “have medical documentation of [a disability]

before 2009.” (Id.).

The Court finds that substantial evidence supports the ALJ’s determination.

Specifically, the record is insufficient to find Plaintiff under a disability before

December 31, 2009. The record contains Dr. Hassan’s notation that he performed a

full physical and determined that Plaintiff suffered from obesity, hyperlipidemia,

abdominal pain – likely due to irritable bowel syndrome – and bacterial vaginosis.

(Id. at 513). Additionally, it appears that Plaintiff visited the emergency room on

February 19, 2009, and saw Dr. Jeffrey G. Laoang. (See, e.g., id. at 557). The

hospital notes indicate that on February 19, 2009, Plaintiff was diagnosed with or

treated for a migraine, a headache, sinusitis, “other diseases of nasal cavity and

sinuses,” tubal ligation status, allergies, and symptoms from long-term use of

medication. (Id. at 596). Finally, the medical records suggest that Plaintiff had a

bilateral breast sonogram on February 13, 2009, which was compared against her

ultrasound-guided right breast biopsy in 2018, (id. at 790), but the February 2009

sonogram is not part of the record and the record does not suggest she was diagnosed

with or treated for anything based on the sonogram. There are no records to suggest

Plaintiff sought continual treatment for any of the above-listed ailments. Thus, even

if the ALJ erred by omitting any reference to the February 2009 records, any error

would be harmless because it does not appear that Plaintiff sought additional

treatment. See Denomme v. Comm’r, Soc. Sec. Admin., 518 F. App’x 875, 877 (11th Cir.

2013) (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) and concluding that

an error is harmless if a correct application of the regulations would not contradict

the ALJ’s ultimate findings).

Moreover, because the medical evidence of record is so far removed from the

relevant time period, the Court finds that the ALJ did not err in discrediting it. As

the ALJ noted, prior to February 2009, there are records from March 2000 through

September 2002. (Id. at 470-97). After July 2009, the earliest records begin May 10,

2018. (Tr. at 499-506). Thus, it appears that for the six years before the disability

onset date and nine years after the date last insured, Plaintiff sought no medical

treatment for any disease. Accordingly, the Court is hard-pressed to find that the

medical records are relevant to a disability during the relevant time period. The

Court finds, therefore, that the ALJ did not err in declining to consider the evidence.

See Douglas, 486 F. App’x at 75.

As a final matter, at the hearing, the ALJ clarified that he would find her

disabled “as of last year.” (Tr. at 169-70). Thus, to the extent Plaintiff may take

issue with the discrepancy between the ALJ’s statements on the record and the

ultimate decision, the Court finds this argument lacks mertt.

Accordingly, upon consideration of the parties’ submissions and the

administrative record, the Court finds that substantial evidence supports the ALJ’s

decision.

IV. Conclusion

In sum, the Court finds that Defendant’s motion is due to bb GRANTED and

that the ALJ’s decision is due to be AFFIRMED. Accordingly, the Court ORDERS

that:

1. Defendant’s Response to this Court’s Order and Motion to Dismiss

Allegations in Plaintiff's Complaint (Doc. 24) is GRANTED.

2. The decision of the Commissioner is AFFIRMED pursuant to sentence

four of 42 U.S.C. § 405(g).

3. The Clerk of Court is directed to enter judgment accordingly, to

terminate any pending motions and deadlines, and to close the case.

DONE AND ORDERED in Fort Myers, Florida on March 16, 2021.

Mac R. MA

United States Magistrate Judge

Copies furnished to:

Counsel of Record

Unrepresented Parties