Petition for Writ of Certiorari — Rita Arguijo Garcia, Petitioner v. Frank Bisignano, Commissioner of Social Security

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[DO NOT PUBLISH}

In the

United States Court of Appeals

Hor the Eleventh Circuit

No, 23-14073

Non-Argument Calendar

RITA ARGUIJJO GARCIA,

Plaintiff-Appellant,

VETSUSL

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:22-cv-02175-AEBP

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2 Opinion of the Court 23-14073

Before JORDAN, ROSENBAUM, and ABUDU, Circuit Judges.

PER CURIAM:

Rita Arguijo Garcia appeals the district court’s order affirming the decision of the Commissioner of the Social Security Administration denying her claim for benefits. Ms. Arguijo Garcia appeared before an administrative law judge who denied her application after finding that she was not disabled. She then filed a request

for review with the Appeals Council, which denied her request and

did not provide for a protective filing date relating back to her original application for benefits. On appeal, Ms. Arguijo Garcia argues

that Social Security Ruling 11-1p, one of the SSA’s regulations, is

unconstitutional because it denies claimants equal protection under the law as guaranteed by the Fifth Amendment. The problem,

she says, is that Ruling 11-1p provides for a protective filing date to

some claimants but not others. Because Ruling 11-1p has a rational

basis, we affirm.

I

Ms. Arguijo Garcia applied for a period of disability, disabil-

ity insurance benefits, and supplemental security income on December 31, 2019, alleging disabling conditions that made her unable to work. As part of her application, she stated that her date of

birth was May 31, 1967. The SSA denied her application both on

initial review and following a request for review.

On October 7, 2021, an administrative law judge held a hearing cn Ms. Arguijo Garcia’s application. ‘The ALJ issued his

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23-14073 Opinion of the Court 3

decision on November 12, 2021, and found that Ms. Arguijo Garcia

was not disabled under the Medical-Vocational Rules, which made

her ineligible for the benefits she had requested. Ms. Arguijo Garcia then requested review of the ALJ’s decision before the Appeals

Council. She attached a letter from her attorney stating that she

would turn 55-years-old in a few months and be deemed disabled.

The Appeals Council denied Ms. Arguijo Garcia’s request for review, finding no grounds that would warrant a departure from the

ALJ's decision.

Ms. Arguijo Garcia filed a complaint in district court seeking

review of the Commissioner’s decision. She asserted that the Appeals Council erred in determining that she was not entitled to a

protective filing date relating back to the date of her initial application. Ms. Arguijo Garcia alleged that Social Security Ruling 11-1p,

which sets out procedures and requirements when a request for

review is filed before the Appeals Council, violates her right to

equal protection because it denies claimants who do not possess

new and irrelevant evidence to obtain a protective filing date while

allowing claimants to receive a protective filing date if they submit

new but irrelevant evidence. The district court affirmed the SSA’s

decision, concluding that Ms. Arguijo Garcia was not entitled to a

protective filing date and her equal protection challenge lacked

merit Ms. Arguijo Garcia now appeals.

II

This appeal involves a challenge to SSA Ruling 11-1p, so we

begin by discussing its history. In 2011, the SSA revised its

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4 Opinion of the Court 23-14073

procedure for processing subsequent disability claims. See Procedures for Handling Requests to File Subsequent Applications for

Disability Benefits, SSR 11-1p, 76 Fed. Reg. 45,309-03, 45,310 (July

28, 2011). From 1999 to 2011, claimants were permitted to file a

subsequent disability claim while a prior disability claim was pending review by the Appeals Council, such that two applications for

disability benefits could be pending at the same time. See id. The

SSA observed that the ability for simultaneous review, paired with

an increasing number of subsequent disability claims, could lead to

conflicting and potentially irreconcilable decisions on claims for

benefits. See id. The SSA also noted that subsequent claims could

result in improper payments, increased administrative costs, and

unnecessary workloads because of duplicated efforts. Due to those

concerns, the SSA implemented the new procedures adopted in

Ruling 11-1p. See id.

Ruling 11-1p provides that a claimant is generally not allowed to have two claims for the same type of benefits pending at

the same time. See id. Claimants with a new disability claim can

either pursue an appeal or start a new application but are no longer

allowed to do both simultaneously. See id. A claimant is not precluded, however, from reporting new medical conditions or a

worsening in her existing medical conditions, and she may submit

any information or evidence that she feels is helpful to her pending

disability claim. See id.; Washington v. Soc. Sec. Admin., Comm’r, 806

F.3d 1317, 1320 (11th Cir. 2015),

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23-14073 Opinion of the Court | 5

Upon receipt of new information, the Appeals Council evaluates the following: (1) whether the evidence submitted by the

claimant relates to the period before or after the date of the AL]’s

decision, see SSR li-lp, 76 Fed. Reg. at 45,310; 20 C.F.R.

§$ 404.970(a)(5), 416.1470(a)(5); and (2) whether the evidence is

new and material, and relates to the date before the AL] decision,

see SSR 11-1p, 76 Fed. Reg. at 45,311; 20 C.F.R. §§ 404.970(c),

416.1470(c). If the evidence relates to the period on or before the

date of the ALJ's decision and is new and material, then it will be

considered with the record previously provided for adjudication by

the Appeals Council. If the new and material evidence relates to

the period after the ALJ decision, however, the evidence will be

returned to the claimant with a notice explaining why it was rejected. When the evidence is returned to the claimant, the SSA will

also provide a protective filing date that establishes the date of the

claimant’s request for review as the filing date for her new claim.

See SSR 11-1p, 76 Fed. Reg. at 45,311; 20 C.F.R. $8 404.970(c),

416.1470(c).!

Hi

We review de novo the application of legal principles by the

ALJ and the district court, but with respect to facts we only review

' The SSA defines “protective filing date” as the date the claimant first contacts

the agency about filing for benefits and indicates that such date may be used

to establish an earlier application date than when the SSA receives the claimant’s signed application. See Glossary of Soc. Sec. Terms, Soc. Sec. Admin.,

https://www.ssa.gov/agency/ glossary (last visited Mar. 31, 2025).

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whether the ALJ’s resulting decision is supported by substantial evidence. See Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1266-67

(11th Cir. 2015). We also review de novo a constitutional challenge

to an administrative rule or regulation. See Crayton v. Callahan, 120

F.3d 1217, 1220 (11th Cir. 1997).

IV

Ms. Arguijo Garcia contends that Ruling 11-1p violates the

Fifth Amendment’s guarantee to equal protection. She argues that

Ruling 11-1p treats claimants more favorably when they submit additional evidence that is ultimately deemed chronologically irrelevant as compared to those who do not possess such evidence to

submit along with a request for review before the Appeals Council.

The Fifth Amendment provides that no one shall be “deprived of life, liberty, or property, without due process of law.”

U.S. Const. amend. V. The Supreme Court has interpreted the

Fifth Amendment's due process guarantee to include preventing

the federal government from denying individuals equal protection

under the laws. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2

(1975) (citing cases). Equal protection claims under the Fifth

Amendment are analyzed under the same standards established for

equal protection claims under the Fourteenth Amendment. See id.;

Sessions v, Morales-Santana, 582 U.S. 47, 52 n.1 (2017). Asa result,

the federal government must treat “similarly situated persons in a

similar manner.” Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558

F.3d 1301, 1306 (11th Cir. 2009),

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23-14073. Opinion of the Court 7

Should a statute or regulation “classiffy] persons in such a

way that they receive different treatment under the law, the degree

of scrutiny the court applies depends upon the basis of the classification.” Morales-Santana, 582 U.S. at 52 n.1 (internal quotation

marks omitted). Unless the classification is made on the basis of

race, another suspect classification, or impinges on a fundamental

right, ic “need only have a rational basis” to comply with the Fifth

Amendment guarantee to equal protection. Id. In such a case we

review whether the statute or regulation is “rationally related to a

legitimate government purpose.” Id.

Another panel of this court has assessed whether Ruling 11-

lp violates equal protection principles under rational basis review

in Williams v. Commissioner of Social Security, No. 21-10920, 2022 WL

791711 (11th Cir. Mar. 16, 2022). Though Williams does not bind

us, we find its reasoning persuasive because it thoroughly addressed the same constitutional question under near identical

facts.2

In Williams, the claimant similarly applied for Social Security

benefits and included her date of birth on her application, which

established she was 52 years old. See id. at *3. After a hearing, the

ALJ found she was not disabled, in part considering her age as “an

* Asin Williams, Ms. Arguijo Garcia submitted a letter from her attorney along

with her request for review before the Appeals Council explaining that her age

would be used to deem her disabled, And, as in Williams, Ms. Arguijo Garcia’s

date of birth was already submitted with her application for benefits prior to

the date of the AL]’s decision.

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individual closely approaching advanced age{.]” Id. The claimant

then appealed and included a letter from her attorney stating that

she would turn 55-years-old in three months, which would qualify

her as disabled. See id. at *4. The Appeals Council denied her request for review and did not provide a protective filing date. See id.

The claimant subsequently filed suit, arguing that SSR 11-1p is unconstitutional based on the difference in how “the SSA treated

claimants who submitted additional evidence to the Appeals Council that was deemed to be not chronologically relevant to those

claimasts who submitted no additional evidence.” Id.

Applying rational basis review, the Williams panel found “a

rational relationship between this disparate treatment and a legitimate government purpose.” Id. at *8. It reasoned that while a

claimant may sometimes know that additional evidence relates

only to the period following the date of the ALJ's decision and

would not be considered by the Appeals Council, at other times it

may not be apparent to a claimant whether the evidence is in fact

chronologically relevant such that the Appeals Council would need

to determine its relevance. See id. In such cases, the panel explained. that it would be reasonable for the SSA to allow those

claimants “to have the benefit of a protective filing date.” Id.

We are persuaded by the panel’s reasoning in Williams and

adopt its analysis as we evaluate Ruling 11-1p under rational basis

review in this appeal. Because there is a rational relationship between the disparate treatment of these claimants—individuals who

submit additional evidence that may not be chronologically

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relevant and individuals who do not possess chronologically irrelevant evidence to submit as additional evidence with a request for

review before the Appeals Council—and the SSA’s administration

of its government benefits program, there is a rational basis for Ruling I1-ip.

_ Ms. Arguijo Garcia has failed to carry her burden “to negate

every conceivable basis” that might support Ruling 11-1p. Leib, 558

F.3d at 1306. Ruling 11-1p therefore does not violate the Fifth

Amencment’s guarantee to equal protection. See Eknes-Tucker v.

Governuy of Ala., 80 F.4th 1203, 1220 (11th Cir. 2023) (en banc), cert.

dismissed sub nom. United States v. Att’y Gen. of Ala., No. 24-582, 2025

WL, 559729 (U.S. Feb. 19, 2025) (explaining that rational basis re-

view is highly deferential to government action).

IV

' For the reasons discussed above, we affirm the judgment of

the district court.

AFFIRMED.

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UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

David J. Smith For rules and forms visit

Clerk of Court ywayw,cal i uscourts.gov

April 14, 2025

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 73-/4073-HH

Case Style: Rita Arguijo Garcia v. Commissioner of Social Security

District Court Docket No: 8:22-cv-02175-AEP

Opinion Issued

Enclosed is a copy of the Court's decision issued today in this case. Judgment has been entered

today pursuant to RAP 36. The Court's mandate will issue at a later date pursuant to FRAP

41(b).

Petitions for Rehearing

The time for filing a petition for panel rehearing or rehearing en banc is governed by | ith Cir.

R. 40-2, Please see FRAP 40 and the accompanying circuit rules for information concerning

petitions for rehearing. Among other things, a petition for rehearing must include a

Certificate of Interested Persons. See 11th Cir. R. 40-3.

Costs

No costs are taxed.

Bill of Costs

If costs are taxed, please use the most recent version of the Bill of Costs form available on the

Court's website at www.cal | uscourts.gov. For more information regarding costs, see FRAP 39

and 11th Cir. R. 39-1.

Attorney's Fees

The time to file and required documentation for an application for attorney's fees and any

objection to the application are governed by 11th Cir. R. 39-2 and 39-3.

Appointed Counsel

Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming

compensation via the eVoucher system no later than 45 days after issuance of the mandate or

the filing of a petition for writ of certiorari. Please contact the CJA Team at (404) 335-6167 or

cja_evoucher@cai | .uscourts.gov for questions regarding CJA vouchers or the eVoucher

system.

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Clerk's Office Phone Numbers

General Information: 404-335-6100

Case Administration: 404-335-6135

CM/ECF Help Desk: 404-335-6125

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Attorney Admissions: 404-335-6122

Capital Cases: 404-335-6200

Cases Set for Oral Argument: 404-335-6141

OPIN-1 Ntc of Issuance of Opinion

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RITA ARGUIJO GARCIA,

Plaintiff,

V. Case No. 8:22-cv-2175-AEP

KILOLO KIJAKAZI,

Acting Commissioner of Social Security,

Defendant.

/

ORDER

Plaintiff seeks judicial review of the denial of her claim for a period of

disability, disability insurance benefits (“DIB”), and Supplemental Security Income

(“SSI”). As the Administrative Law Judge’s (“ALJ”) decision was based on

substantial evidence and employed proper legal standards, the Commissioner’s

decision is affirmed.

A. Procedural Background

Plaintiff filed an application for a period of disability, DIB, and SSI (Tr. 306-

12, 313-20). The Social Security Administration (“SSA”) denied Plaintiffs claims

both initially and upon reconsideration (Tr. 57-71, 72-86, 91-111, 112-32). Plaintiff

then requested an administrative hearing (Tr. 196-97). Per PlaintifPs request, the

ALJ held a hearing at which Plaintiff appeared and testified (Tr. 37-56). Following

the hearing, the ALJ issued an unfavorable decision finding Plaintiff not disabled

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and accordingly denied Plaintiff's claims for benefits (Tr. 13-26). Subsequently,

Plaintiff requested review from the Appeals Council, which the Appeals Council

denied (Tr. 1-8). Plaintiff then timely filed a complaint with this Court (Doc. 1). The

case is now ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3).

B. Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1967, claimed disability beginning on December

31, 2019 (Tr. 57, 72, 87-88). Plaintiff has at least an eleventh-grade education (Tr.

349), Plain iff has past work experience making deliveries and being a “trash picker”

in the construction industry and also working as a sandwich maker in the fast-food

industry (Tr. 349). Plaintiff alleged disability due to sciatica, sleep apnea, asthma,

high blood pressure, cholesterol, muscular pain, memory problems, depression,

migraines, stomach problems, vertigo, and arm problems (Tr. 348).

In rendering the administrative decision, the ALJ concluded that Plaintiff

met the insured status requirements through December 31, 2024 and had not

engaged in substantial gainful activity since December 31, 2019, the alleged onset

date (Tr. 21). After conducting a hearing and reviewing the evidence of record, the

ALJ determined Plaintiff had the following severe impairments: degenerative disc

disease of the lumbar spine, lumbar radiculopathy, degenerative disc disease of the

cervical spine, cervical radiculopathy, osteoarthritis of the left acromioclavicular

joint, left rotator cuff tear, status post decompression and repair, adhesive capsulitis

of the left shoulder, history of right rotator cuff tear, status post repair, asthma,

migraine, and obesity (Tr. 22). Notwithstanding the noted impairments, the ALJ

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determined. Plaintiff did not have an impairment or combination of impairments

that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404,

Subpart P, Appendix 1 (Tr. 23). The ALJ then concluded that Plaintiff retained a

residual functional capacity (“RFC”) to perform light work as defined in 20 CFR

404.1567(b) and 416.967(b) except the claimant can stand/walk 6 total hours in an

8-hour workday; sit 6 total hours; never climb ladders, ropes, or scaffolds,

occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl:

occasionally reach overhead bilaterally; must avoid concentrated exposure to

extreme cold, extreme heat, wetness, humidity, vibration, hazards, and fumes,

odors, dusts, gases, and other pulmonary irritants; and can have no exposure to loud

or very loud noise (Tr. 24). In formulating Plaintiffs RFC, the ALJ considered

Plaintiffs subjective complaints and determined that, although the evidence

established the presence of underlying impairments that reasonably could be

expected to produce the symptoms alleged, Plaintiffs statements as to the intensity,

persistence, and limiting effects of her symptoms were not entirely consistent with

the medical evidence and other evidence (Tr. 25).

Given Plaintiff's background, RFC, and the assessment of a vocational expert

(“VE”), the ALJ determined that Plaintiff can perform her past relevant work as a

fast-food worker as generally performed (Tr. 27-28). Additionally, based on the

VE’s testimony, the ALJ found that there are other jobs which exist in significant

numbers in:the national economy that Plaintiff can perform, such as mail sorter,

router, ano: cashier II (Tr. 28). Accordingly, based on Plaintiff's age, education,

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work experience, RFC, and the VE’s testimony, the ALJ found Plaintiff not

disabled (Tr. 29).

II.

To be entitled to benefits, a claimant must be disabled, meaning he or she

must be unable to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to

result in death or which has lasted or can be expected to last for a continuous period

of not less than twelve months. 42 U.S.C. §§ 423(d)C1 A), 1382c(a)(3)(A). A

“physical cr mental impairment” is an impairment that results from anatomical,

physiological, or psychological abnormalities, which are demonstrable by medically

acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3),

1382c(a)(3){D).

To regularize the adjudicative process, the SSA promulgated the detailed

regulations currently in effect. These regulations establish a “sequential evaluation

process” tc determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520,

416.920. If an individual is found disabled at any point in the sequential review,

further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this

process, the ALJ must determine, in sequence, the following: (1) whether the

claimant is currently engaged in substantial gainful activity; (2) whether the

claimant has a severe impairment, ie, one that significantly limits the ability to

perform work-related functions; (3) whether the severe impairment meets or equals

the medicai criteria of 20 C.F.R. Part 404 Subpart P, Appendix 1; and (4) whether

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the claimant can perform his or her past relevant work. 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4). If the claimant cannot perform the tasks required of his or her prior

work, step five of the evaluation requires the ALJ to decide if the claimant can do

other work in the national economy in view of his or her age, education, and work

experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). A claimant is entitled

to benefits only if unable to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140-

42 (1987); 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

The ALJ , in part, decides Plaintiff's claim pursuant to regulations designed

to incorporate vocational factors into the consideration of disability claims. See 20

C.F.R. §§ 404.1501, et seg. These regulations apply in cases where an individual’s

medical condition is severe enough to prevent him from returning to his former

employment but may not be severe enough to prevent him from engaging in other

substantial gainful activity. In such cases, the Regulations direct that an individual’s

residual functional capacity, age, education, and work experience be considered in

determining whether the claimant is disabled. These factors are codified in tables of

rules that are appended to the regulations and are commonly referred to as “the

grids.” 20 C.F.R. Part 404, Subpart P, App. 2. If an individual’s situation coincides

with the criteria listed in a rule, that rule directs a conclusion as to whether the

individual is disabied. 20 C.F.R. §§ 404.1569, 416.969. If an individual’s situation

varies from the criteria listed in a rule, the rule is not conclusive as to an individual’s

disability but is advisory only. 20 C.F.R. §§ 404.1569a, 416.969a.

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A determination by the ALJ that a claimant is not disabled must be upheld if

it is supported by substantial evidence and comports with applicable legal standards.

See 42 U.S.C. §§ 405(g), 1383(c)(3). “Substantial evidence is more than a scintilla

and is such relevant evidence as a reasonable person would accept as adequate to

support a conclusion.” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th

Cir. 2011) (citation and internal quotation marks omitted). While the court reviews

the Commissioner’s decision with deference to the factual findings, no such

deference is given to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496 F.3d

1253, 1260 11th Cir. 2007) (citations omitted),

In reviewing the ALJ’s decision, the court may not reweigh the evidence or

substitute its own judgment for that of the ALJ, even if it finds that the evidence

preponderates against the ALJ’s decision. Winschel, 631 F.3d at 1178 (citations

omitted); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The ALJ’s

failure to apply the correct law, or to give the reviewing court sufficient reasoning

for determining that he or she has conducted the proper legal analysis, mandates

reversal. Ingram, 496 F.3d at 1260 (citation omitted). The scope of review is thus

limited to determining whether the findings of the ALJ are supported by substantial

evidence and whether the correct legal standards were applied. 42 U.S.C. § 405(g);

Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002) (per curiam) (citations

omitted).

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II.

Plaintiff argues that the ALJ erred by finding that Plaintiff could perform her

past relevant work as a fast-food worker because her past work more accurately

corresponds with the job of “fast-food cook.” Additionally, Plaintiff argues that the

Appeals Council erred by failing to find that she was entitled to a protective filing

date as of the date she submitted her request for review and challenges the

constitutionality of Social Security Ruling 11-1p and 20 C.F.R. § 416.1470(©). For

the followirg reasons, the ALJ applied the correct legal standards, and the Appeals

Council’s decision was consistent with the relevant SSA regulation, which has a

rational basis.

A. Past Relevant Work as a Fast-Food Worker

Plaintiff argues that the DOT occupation, fast-food worker, which was cited

by the VE and the ALJ does not encompass the work she performed and contends

that her past work more properly comports with work as a fast-food cook.

According to Plaintiff, if her past work was classified as a fast-food cook rather than

as a fast-food worker, Plaintiff could not perform such work as it is generally

performed or as she actually performed the work.

At step four of the sequential evaluation process, the ALJ assesses the

claimant’s RFC and ability to perform past relevant work. See 20 C.F.R. §§

404.1520(a)(4)Gv), 404.1545, 416.920(a)(4)(iv), 416.945. Past relevant work

consists of work a claimant performed “within the last 15 years, lasted long enough

for [the clarmant] to learn to do it, and was substantial gainful activity.” 20 C.F.R.

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§§ 404. 1565(a), 416.965(a). The claimant bears the burden of proving that his or her

impairments prevent the performance of past relevant work. Doughty v. Apfel, 245

F.3d 1274, 1278 (11th Cir. 2001); of Moore v. Barnhart, 405 F.3d 1208, 1211 (11th

Cir. 2005) (noting that the regulations ‘‘place a very heavy burden on the claimant

to demonstrate both a qualifying disability and an inability to perform past relevant

work”) (citation omitted). Additionally, the claimant bears the burden of

demonstrating that his or her past work experience does not constitute past relevant

work. Waldrop v. Comm’r of Soc. Sec., 379 F. App’x 948, 953 (11th Cir. 2010) (citing

Barnes v. Sitllivan, 932 F.3d 1356, 1359 (Lith Cir. 1991)).! In considering past

relevant work, a finding of “not disabled” is warranted where a claimant retains the

RFC to perform (1) the actual functional demands and job duties of a particular past

relevant job; or (2) the functional demands and job duties of the occupation as

generally required by employers throughout the national economy. Social Security

Ruling 82-62 (“SSR 82-62”), 1982 WL 31387, at *2 (Jan. 1, 1982). Stated differently,

“{a] claimaat is not disabled if she is able to perform her past work either as she

actually performed it or as it is generally performed in the national economy.” Fries

v. Comm’r of Soc. Sec. Admin., 196 F. App’x 827, 832 (11th Cir. 2006) (citation

omitted). “The regulations require that the claimant not be able to perform his past

kind of work, not that he merely be unable to perform a specific job he held in the

past.” Jackson v. Bowen, 801 F.2d 1291, 1293 (11th Cir. 1986) (emphasis in original;

' Unpublished opinions are not considered binding precedent but may be cited as

persuasive authority. 11th Cir. R. 36-2.

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citations ornitted). Accordingly, a claimant needs to demonstrate that he or she

cannot retuin to his or her former type of work rather than to a specific prior job. Id.

(citations omitted). The regulations anticipate the ALJ’s reliance on the VE for his

or her knowledge and expertise and explicitly state a “vocational expert or specialist

may offer relevant evidence within his or her expertise or knowledge concerning the

physical and mental demands of a claimant’s past relevant work, either as the

claimant actuaily performed it or as generally performed in the national economy.”

20 C.E.R. §§ 404.1560(b)(2), 416.960(b)(2).

Ther2 are several issues with PlaintifPs argument. First, Plaintiff did not

challenge the VE’s alleged misclassification of her part work as a fast-food worker.

A number of courts have found that a claimant’s failure to raise an argument before

the ALI relative to her past relevant work forecloses such a contention on appeal.

See é.f., Vickery v. Comm ’r of Soe. Sec., No. 5:21-CV-122-PRL, 2022 WL 16555990,

at *3 (M.D. Fla. Sept. 23, 2022) (finding that the ALJ was not obligated to further

investigate whether the plaintiffs job as a real estate agent was past relevant work

because the: plaintiff did not object or otherwise raise the issue to the ALJ at the

hearing); New v. Comm’r of Soc. Sec., No. 5:12-CV-211-OC-18PRL, 2013 WL

3804846, at.*3 (M.D. Fla. July 8, 2013) (“As an initial matter, the Commissioner

correctly notes that the Plaintiff did not raise this issue to the ALJ, nor did her

attorney object to the VE’s testimony identifying Plaintiffs prior work as a

housekeeper as past relevant work. Unfortunately for Plaintiff, because she failed to

raise this issue to the ALJ or even object to the VE’s testimony, the ALJ was not

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2la

obligated to specifically address the concerns—or rather, arguments—that Plaintiff

now raises.’); Whittemore v. Comm’r of Soc. Sec., No. 3:09-CV-1242-J-MCR, 2011

WL 722966, at *5 (M.D. Fla. Feb. 23, 2011) (finding that where the plaintiff did not

raise the issue to the ALJ as to whether her prior job as a real estate agent qualified

as substantial gainful activity and did not object to the VE’s “past relevant work

3

summary,” which included the job of real estate agent, that the ALJ was not

required to specifically discuss his reasons for concluding that the plaintiffs past

work as a real estate agent qualified as substantial gainful activity). Here, Plaintiff,

who was represented by counsel at the hearing, failed to ask any questions of the

VE when given the opportunity and did not raise any concerns to the ALJ regarding

the classification of her past work (see Tr. 51-56).

The second issue with Plaintiff's argument is that the record reflects that there

was sufficient information about the demands of Plaintiffs past work for the ALJ

to determine that Plaintiff could perform her past work as a fast-food worker.

The DOT describes the position of a fast-food worker as follows:

Serves customer of fast food restaurant: Requests customer order and

depresses keys of multicounting machine to simultaneously record

ordey and compute bill. Selects requested food items from serving or

storage areas and assembles items on serving tray or in takeout bag.

Nottiies kitchen personnel of shortages or special orders, Serves cold

drinks, using drink-dispensing machine, or frozen milk drinks or

desserts, using milkshake or frozen custard machine. Makes and serves

hot beverages, using automatic water heater or coffeemaker. Presses

lids onto beverages and places beverages on serving tray or in takeout

container. Receives payment. May cook or apportion french fries or

perform other minor duties to prepare food, serve customers, or

maintain orderly eating or serving areas.

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DOT § 311.472-010, 1991 WL 672682. The fast-food worker position is rated as

light work, occasionally exerting up to twenty pounds and frequently exerting up to

ten pounds to move objects. 7d. “Even though the weight lifted may be only a

negligible amount, a job should be rated Light Work... when it requires walking

or standing to a significant degree.” Id. The DOT describes the position of fast-food

cook as follows:

Prepares and cooks to order foods requiring short preparation time:

Reads food order slip or receives verbal instructions as to food required

by pitron, and prepares and cooks food according to instructions.

Prepires sandwiches [SANDWICH MAKER (hotel & rest.) 317.664-

O10]. Prepares salads and slices meats and cheese, using slicing

machine, [PANTRY GOODS MAKER (hotel & rest.) 317.684-014].

Cleans work area and food preparation equipment. May prepare

beverages [COFFEE MAKER (hotel & rest.) 317.684-010]. May serve

meals to patrons over counter.

DOT § 313.374-010, 1991 WL 672716. The fast-food cook position is rated as

medium work, occasionally exerting twenty to fifty pounds, and frequently exerting

ten to twenty-five pounds to move objects. Id.

Based upon Plaintiff's work history report and the DOT, the ALJ properly

determined that Plaintiffs past relevant work was that of a fast-food worker. The

ALJ considered Plaintif?'s work history report, Plaintiff's testimony regarding her

past work, and the VE’s assessment of the past work. In her work history report,

Plaintiff noted that she worked in food prep at McDonalds (Tr. 391). When asked

to describe her job, she wrote “I was making the food prep. I would stock when

running low of supply” (Tr. 391). Plaintiff also noted that she did not use machines,

tools, or equipment, or use any technical knowledge or skills (Tr. 391). Moreover,

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Plaintiff reported standing six hours in a workday and having to handle, grab, or

grasp large objects for six hours in a workday (Tr. 391). Plaintiff also noted that she

lifted and carried boxes from the freezer every couple of days and the heaviest

weight she lifted was twenty pounds and the weight she frequently lifted was ten

pounds (Tr. | 391). At the hearing, when the ALJ asked her if she was mostly doing

food prep, Plaintiff agreed (Tr. 42). Plaintiff testified that that she would go in the

stock room and get new supplies if food was running low, including going into the

freezer to bing out boxes of potatoes (Tr. 42). The VE testified that Plaintiff's past

work classified as fast-food worker which was light work as described and as

performed (Tr. 51). Given Plaintiffs lifting, walking, and standing patterns, in

addition to her responsibilities, the job of fast-food worker adequately reflects the

nature of Plaintiff's occupation. See McCook v. Aetna Life Ins, Co., No. 3:17-CV-823,

2018 WL 6983618 at *19 (M.D. Fla. Nov. 14, 2018) (citation and quotation marks

omitted) (“A DOT occupation is appropriately analogous if it involves duties that

are comparable to those of the claimant’s occupation, but not necessarily every

duty.”)

Plaintiff makes no showing, however, that the ALJ did not develop the record

as to the physical requirements, demands, and duties of the Plaintiff's former job as

she actually performed it. See Waldrop, 379 F. App’x at 953. Plaintiff also fails to

demonstrate that the ALJ’s characterization of Plaintiff's past work based upon her

administrative filings, her hearing testimony, and the VE’s assessment is

unsupported by substantial evidence. Rather, she asserts that there is a different

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classification that better describes her role. As a result, the Court is unpersuaded by

Plaintiffs contention that the ALJ (or the VE) misclassified the Plaintiff's past work

in the fast-food industry. It is, after all, not the function of this Court to reweigh the

evidence upon review. See Winschel, 631 F.3d at 1178.

Plaintiff also argues that if the ALJ had classified her past work as a fast-food

cook and found that she was unable to perform that work, and because she was only

a few months short of her 55" birthday, there is a reasonable possibility that the ALJ

would have declined to mechanically apply the Grids and treat Plaintiff as if she

was already 55 years old and approve her claim. Plaintiffs argument is filled with

assumption this Court cannot make.

As previously stated, at step four of the sequential evaluation process, the

ALJ assesses the claimant’s RFC and ability to perform past relevant work. See 20

C.FLR. §§ 404.1520(a)(A)iv), 404.1545, 416.920(a)(4)iv), 416.945. If the claimant

can return.to her past relevant work, the ALJ will conclude that the claimant is not

disabled. 20 C.F.R. § 404,1520(a)(4)(iv) & (f), 416.920(a)(4)Civ) & (f). At this step,

the claimant bears the burden of proving that his or her impairments prevent him

or her from performing past relevant work. Doughty, 245 F.3d at 1278. If the

claimant cannot perform her past relevant work, the ALJ moves on to step five of

the evaluation, which requires the ALJ to decide if the claimant can do other work

in the national economy in view of her age, education, and work experience. 20

C.E.R. § 404.1520(a)(4)(v), 416.920(a)(4)(v).

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Here, not only did the ALJ conclude that Plaintiff was able to perform her

past relevant work as a fast-food worker, but the ALJ made an alternate fining at

step five that Plaintiff could perform work as a mail sorter, router, and cashier (Tr.

28). Plaintiff does not challenge the ALJ’s alternate finding. See Frizzio v. Astrueas,

No. 6:1 1-cv-1318-Orl-31TEM, 2012 WL 3668049 (M.D. Fla. Aug. 7, 2012) (“When

an ALJ has committed error at step four, it may be harmless error if her alternative

finding at step five is correct.”).

Moreover, Plaintiff argues that if the ALJ would have found that she could

not perform her past relevant work and treated her as if she was already 55, the

Grids would direct a finding of disabled. However, the ALJ could not have relied

exclusively on the Grids at step five to find her disabled. At step five, the ALJ must

consider the assessment of the RFC combined with the claimant’s age, education,

and work experience to determine whether the claimant can make an adjustment to

other work. Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004); 20 C.F.R. §§

404,1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can make an adjustment to other

work, a finding of not disabled is warranted. Phillips, 357 F.3d at 1239. Conversely,

if the claimant cannot make an adjustment to other work, a finding of disabled is

warranted. /d. At this step, the burden temporarily shifts to the Commissioner to

show other jobs exist in significant numbers in the national economy which, given

the claimant’s impairments, the claimant can perform. See Washington v. Comm’r of

Soc. Sec, 906 F.3d 1353, 1359 (11th Cir. 2018); Foote v. Chater, 67 F.3d 1553, 1559

(ilth Cir. 1995).; 20 C_F.R. § 404.1520(a)(4)(v). “The ALJ must articulate specific

14

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jobs that the claimant is able to perform, and this finding must be supported by

substantial evidence, not mere intuition or conjecture.” Wilson, 284 F.3d at 1227

(citation omitted). There are two avenues by which an ALJ may determine a

claimant’s ability to adjust to other work in the national economy: namely, by

applying the Grids and by using a VE. Phillips, 357 F.3d at 1239-40. Typically,

where the claimant cannot perform a full range of work at a given level of exertion

or where the claimant has non-exertional impairments that significantly limit basic

work skills, the ALJ must consult a VE. Id. at 1242; see also Walker v. Bowen, 826

F.2d 996, 1902-03 (11th Cir. 1987) (quotation omitted) (“Exclusive reliance on the

grids is not appropriate either when [a] claimant is unable to perform a full range of

work at a given functional level or when a claimant has non-exertional impairments

that significantly limit basic work skills.”). However, when both exertional and nonexertional impairments exist, the Grids may still be applicable. Sryock v. Heckler, 764

F.2d 834, 836 (11th Cir. 1985) (per curiam), Where the ALJ considers the nonexertional limitations, the ALJ need only determine whether the non-exertional

limitations significantly limit the claimant’s basic work skills, meaning that the

claimant has limitations that prohibit him or her from performing “a wide range”

of work at a given level. Phillips, 357 F.3d at 1243 (emphasis in original); see also

Sryock, 764 F.2d at 836 (citations and quotation marks omitted) (“[N]on-exertional

limitations can cause the grid to be inapplicable only when the limitations are severe

enough to prevent a wide range of gainful employment at the designated level.”). If

the ALJ determines that a claimant’s non-exertional limitations do not significantly

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limit his or her basic work skills at a specific work level, the ALJ may rely on the

Grids in determining whether the claimant is disabled. Phillips, 357 F.3d at 1243;

In the instant case, the ALJ noted that if Plaintiff had the RFC to perform

the full range of light work, a finding of “not disabled” would be directed by Grid

rule 202.10 (Tr. 28). However, the ALJ specifically found that Plaintiffs ability to

perform all or substantially all of the requirements of this level of work has been

impeded by additional limitations (Tr. 28). “To determine the extent to which these

limitations erode the unskilled light occupational base,” the ALJ asked the VE

whether jobs exist in the national economy for an individual with Plaintiffs age,

education, work experience, and RFC (Tr. 28). The VE testified that Plaintiff was

abie to perform the work of a mail sorter, router, and cashier (Tr. 28). The ALJ

concluded that considering the Plaintiffs age, education, work experience, and

RFC, the claimant was capable of making a successful adjustment to other work

that exists 1n significant numbers in the national economy (Tr. 29).

The ALJ correctly applied the law. At step five of the sequential evaluation

process, the ALJ determined that, although the Grids would ordinarily support a

finding of “not disabled” in Plaintiffs case, the ALJ needed to utilize the VE’s

testimony to establish whether a significant number of jobs existed for Plaintiff in

the national economy because Plaintiff's ability to perform all or substantially all of

the requirements of light work was impeded by her limitations. Plaintiff does not

chalienge the ALJ’s factual findings with regard to her RFC or the conclusion that

she could not perform a full range of light work, or argue that she is unable to

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perform her past relevant work as a fast-food worker. Given the VE’s testimony that

there existed three types of jobs in significant numbers in the national economy that

a person with Plaintiffs RFC could perform, substantial evidence supports the

ALJ’s conclusion that, because the Commissioner met its burden at step five,

Plaintiff did not demonstrate that she was disabled.

B. SSR 11-1P

Plaintiff argues that Social Security Ruling 11-1p violates the equal protection

clause to the United States Constitution, and that the Appeals Council should have

included in their decision an order that if Plaintiff made a new application for SSI

within 60 days, the date of the Request for Review would be deemed a protective

filing date for a new application.

The Equal Protection Clause directs that no state will “deny to any person

within its jurisdiction the equal protection of the laws.” U.S. Const., Amdt. 14 § 1.

Plaintiff concedes that because she does not claim to be a member of a suspect class

or allege a burden on one of her fundamental rights, the constitutional inquiry falls

within rational-basis review. See Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558

F.3d 1301, 1306 (11th Cir. 2009). Under rational-basis review, a statute or

regulation that classifies persons in such a way that they receive different treatment

under the law is permitted so long as there is a “rational relationship between the

disparity of treatment and some legitimate governmental purpose.” Heller v. Doe ex

rel, Doe, 509 U.S. 312, 320 (1993); see also City of Cleburne, Tex., v. Cleburne Living Ctr.,

473 U.S. 452, 440 (1985), superseded by statute on other grounds, (“The general rule is

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that legislation is presumed to be valid and will be sustained if the classification

drawn by the statute is rationally related to a legitimate state interest.”). In an equalprotection challenge, “the burden is on the one attacking the law to negate every

conceivable basis that might support it, even if that basis has no foundation in the

record.” Leib, 558 F.3d at 1306. If “any reasonably conceivable state of facts...

could provide a rational basis for the classification,” the classification must be

upheld. Helfer, 509 U.S. at 320 (citation and quotation marks omitted),

In Williams v. Comm’r of Soc. Sec., the Eleventh Circuit Court of Appeals

described the regulatory scheme behind SSR 11-Ip, which this Court adopts below:

For the period from 1999 through 2011, the SSA’s procedures

permitted a claimant to have two applications for the same type of

disability benefits pending at the same time. See Procedures for

Handling Requests to File Subsequent Applications for Disability

Benefits, SSR 11-lp, 76 Fed. Reg. 45,309, 45,310 (July 28, 2011)

(“SSR i1-lp” or the “ruling”). Under these procedures, if an ALJ

denied a claimant’s application for disability benefits and she sought

review of that decision from the Appeals Council, she also could file a

new application with the SSA under the same title seeking the same

type of benefits. Jd, The agency would process the claimant’s second

disability claim while she continued to pursue administrative review

of her initial claim. Jd.

Over time, the SSA saw an increase in the number of claimants

who both sought Appeals Council review and filed subsequent

disability claims. Jd. When a claimant had two applications seeking

benefits under the same title and type pending at the same time, there

was a risk of conflicting agency decisions, which the SSA then had to

reconcile. fd. The SSA found that allowing claimants to have two

applications pending at the same time resulted in “improper payments,

increased administrative costs, and unnecessary workloads stemming

from duplication.” /d.

To address these problems, the agency issued SSR 11-ip, a

Social Security Ruling, which revised the procedures for handling

subsequent applications for disability claims of the same title and type.

Id. Under SSR 11-lp, a claimant generally may not have two

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applications for the same type of benefits pending at the same time. Jd.

When a claimant has a request for review pending before the Appeals

Couricil, the agency will not accept a subsequent application from the

claimant seeking the same type of benefits. 7d. The revised procedures

effectively required a claimant to choose between pursuing

administrative review of her initial application and filing a new one.

Td.

Even though the SSA will not accept a new application from a

claimant while she pursues. Appeals Council review, she may submit

additional evidence to the Appeals Council relevant to her initial

application. Jd, at 45,110-11; see Washington v. Soc. Sec, Admin.,

Comnt’y, 806 F.3d 1317, 1320 (lth Cir. 2015) (explaining that a

claimant is permitted to present new evidence at each stage of the

administrative process, including before the Appeals Council, and that

the Appeals Council is obligated to consider such evidence).

The SSA’s regulations have long addressed when the Appeals

Council may consider additional evidence submitted by a claimant.

See 20 C.F.R. § 416.1470(c) (the “regulation”), In the 1980s, the SSA

proposed a regulation that would have barred the Appeals Council

from considering additional evidence from a claimant in any

circumstances. Limit on Future Effect of Applications and Related

Charges in Appeals Council Procedures, 52 Fed. Reg. 4,001, 4,001-

02 (Feb. 9, 1987). But the SSA ultimately did not implement this broad

ban on the Appeals Council’s consideration of additional evidence. Id.

at 4,002. Instead, the agency limited the Appeals Council to

considering evidence relating to the period on or before the date of the

ALJ’s decision. /d. At the same time, the SSA added a provision to its

regulations specifying that if a claimant submitted additional evidence

that *he Appeals Council found related to the period after the date of

the ALJ’s decision, the Appeals Council would return the evidence to

the claimant. Jd. It also would advise the claimant that if she filed a

subsequent application for benefits, the date of her request for review

would be used as the protective filing date for the application. See id.;

see 20 C.F.R. § 416.1470(c).

In 2011, when the SSA issued SSR 11-1p, it essentially repeated

the regulation’s language related to protective filing dates. Compare 20

C.F.R. § 416.1470(c) (providing that if the Appeals Council returns

additional evidence and the claimant timely files a new application,

the SSA “will use the date [the claimant] requested Appeals Council

review as the filing date for [a] new application”) with SSR 11-1p, 76

Fed. Reg. at 45,311 (providing that if the Appeals Council returns

additional evidence and the claimant timely files a new application,

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