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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GREGORY L. DANIELS, *

 * 

Plaintiff, *

*

vs. * CIVIL ACTION 08-00399-CG-B

*

MICHAEL J. ASTRUE, *

Commissioner of *

Social Security, *

*

Defendant. *

REPORT AND RECOMMENDATION

Plaintiff Gregory L. Daniels (“Plaintiff”) brings this action

seeking judicial review of a final decision of the Commissioner of Social

Security denying his claim for period of disability and disability

income benefits under Title II of the Social Security Act (“Act”),

42 U.S.C. § 416 et seq. This action was referred to the

undersigned for report and recommendation pursuant to 28 U.S.C. §

636(b)(1)(B). Upon consideration of the administrative record and

memoranda of the parties, it is it is RECOMMENDED that the decision

of the Commissioner be AFFIRMED.

I. Procedural History

Plaintiff filed his current application for disability

benefits on April 3, 2004, alleging disability since March 31, 1992

due to post traumatic stress disorder (“PTSD”), diabetes,

hypertension and depression. (Tr. 25, 44-46). Plaintiff’s

earnings record shows that he has sufficient quarters of coverage

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to remain insured through March 31, 1992 (his “date last insured”),

and that he was insured through that date. (Tr. 49). His

application was initially denied on July 2, 2004, and he filed a

request for a hearing before an Administrative Law Judge (“ALJ”)

(Tr. 24-25, 31). On January 4, 2006, ALJ James D. Smith (“ALJ

Smith”) held an administrative hearing which was attended by the

Plaintiff. (Tr. 476-483). On June 7, 2006, ALJ Smith issued an

unfavorable decision. (Tr. 10-19). Plaintiff appealed the

decision, and on May 14, 2008, the Appeals Counsel (“AC”) denied

Plaintiff’s request for review. Thus, the ALJ’s decision became

final (Tr. 4-6). Plaintiff then filed the instant action which the

parties agree is now ripe for judicial review and is properly

before this Court pursuant to 42 U.S.C. § 405(g). 

Plaintiff initiated this action by filing a Veterans

Administration (hereinafter “VA”) Rating Decision dated February

25, 2002, and a letter from the VA dated March 8, 2002. (Doc. 1)

The VA Rating Decision reflects that as a result of an appeal of a

prior Rating Decision, Plaintiff was assigned a 10% rating for

diabetes mellitus with an effective date of March 26, 2001, and was

assigned a 100% rating for PTSD with an effective date of December

13, 1993. The March 8, 2002 letter discussed the benefits that

Plaintiff would receive as a result of the decision. (Doc. 1). 

On August 14, 2008, the undersigned issued an order requiring

Plaintiff to file a complaint that complied with Rule 8(a) of the

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Federal Rules of Civil Procedure. (Doc. 3). On August 27, 2008,

Plaintiff filed an amended complaint (Doc. 4). As best the

undersigned can discern, Plaintiff appears to assert that he was

previously denied social security disability benefits based on an

erroneous VA ruling, that the VA had subsequently changed its

ruling, and that Social Security should do likewise. (Doc. 4).

Plaintiff also filed a Fact Sheet, another copy of his amended

complaint, a VA letter dated September 6, 2001, a portion of a VA

Rating Decision, dated August 22, 2001, and six pages of earnings

records. (Docs. 9, 17).

II. Issues on Appeal

A. Whether the ALJ’s finding that a prior ALJ

decision was not re-opened is subject to judicial

review. 

B. Whether substantial evidence supports the ALJ’s

decision denying benefits. 

III. Background Facts

Plaintiff was born on July 18, 1948 and was 58 years old at

the time of the administrative hearing (Tr. 24, 44, 479). He

testified that he has received a VA pension of $2,250 since 1994

for a mental condition, and has been classified as 100 percent

disabled since that time. (Tr. 479-480). He further testified

that he was hospitalized at the VA hospital in 1995 and 1996 for

a mental condition. (Tr. 481). According to Plaintiff, he left

the military in 1966, and “got into a lot of negative activities.”

(Tr. 481). He stated that he then found out there were clinics

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This Court’s review of the Commissioner’s application of

legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999

(11th Cir. 1987).

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that could help him, and that he started taking medication that

calmed him down. (Tr. 480). 

IV. Analysis

A. Standard of Review

In reviewing claims brought under the Act, this Court’s role

is a limited one. This Court’s review is limited to determining

1) whether the decision of the Secretary is supported by

substantial evidence and 2) whether the correct legal standards

were applied. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.

1990).1

 A court may not decide the facts anew, reweigh the

evidence, or substitute its judgment for that of the Commissioner.

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The

Commissioner’s findings of fact must be affirmed if they are based

upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235

(11th Cir. 1991); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

Cir. 1983) (finding that substantial evidence is defined as “more

than a scintilla but less than a preponderance,” and consists of

“such relevant evidence as a reasonable person would accept as

adequate to support a conclusion[]”). In determining whether

substantial evidence exists, a court must view the record as a

whole, taking into account evidence favorable as well as

unfavorable to the Commissioner’s decision. Chester v. Bowen, 792

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The claimant must first prove that he or she has not

engaged in substantial gainful activity. The second step

requires the claimant to prove that he or she has a severe

impairment or combination of impairments. If, at the third step,

the claimant proves that the impairment or combination of

impairments meets or equals a listed impairment, then the

claimant is automatically found disabled regardless of age,

education, or work experience. If the claimant cannot prevail at

the third step, he or she must proceed to the fourth step where

the claimant must prove an inability to perform their past

relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.

1986). In evaluating whether the claimant has met this burden,

the examiner must consider the following four factors: (1)

objective medical facts and clinical findings; (2) diagnoses of

examining physicians; (3) evidence of pain; (4) the claimant’s

age, education and work history. Id. at 1005. Once a claimant

meets this burden, it becomes the Commissioner’s burden to prove

at the fifth step that the claimant is capable of engaging in

another kind of substantial gainful employment which exists in

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F.2d 129, 131 (11th Cir. 1986); Short v. Apfel, 1999 U.S. DIST.

LEXIS 10163 (S.D. Ala. June 14, 1999).

B. Discussion

An individual who applies for Social Security disability

benefits must prove his disability. 20 C.F.R. §§ 404.1512,

416.912. Disability is defined as the “inability to do 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)(1)(A), 404.1505(a), 416.905(a). The Social

Security regulations provide a five-step sequential evaluation

process for determining if a claimant has proven his disability.

20 C.F.R. §§ 404.1520, 416.920.2

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significant numbers in the national economy, given the claimant’s

residual functional capacity, age, education, and work history. 

Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the

Commissioner can demonstrate that there are such jobs the

claimant can perform, the claimant must prove inability to

perform those jobs in order to be found disabled. Jones v.

Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.

Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.

Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)). 

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In the case sub judice, the ALJ observed that Plaintiff

previously filed, on August 31, 1994, an application for

disability benefits which was denied by ALJ Ragland in a decision

dated March 1, 1996, and that Plaintiff did not appeal that

denial. ALJ Smith further noted that Plaintiff filed two more

applications, in November 2001 and November 2002, which were

denied by the Social Security Administration, based on the

doctrine of res judicata. ALJ Smith determined that since

Plaintiff submitted new evidence from the VA regarding his

service-connected disability, and since the regulations regarding

mental impairments had changed since ALJ Ragland’s decision dated

March 1, 1996, Plaintiff’s current application was not barred

by res judicata. (Tr. 17). ALJ Smith also determined that

Plaintiff last met the non-disability requirements for a period

of disability and disability insurance benefits, and was last

insured for benefits on March 31, 1992. (Tr. 15). ALJ Smith

concluded that given that Plaintiff’s date last insured was March

31, 1992, and that 20 C.F.R. 404.987 through 404.989 set time

limits for reopening applications, ALJ Ragland’s decision dated

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March 1, 1996 was not subject to reopening because Plaintiff’s

current application was clearly outside the time limits set for

reopening. (Tr. 18)

 In the alternative, ALJ Smith concluded that although

Plaintiff had the medically determinable impairments of PTSD, type

II diabetes secondary to herbicide exposure and obesity on March

31, 1992, his date last insured, there is no evidence in the

record that establishes the presence of an impairment or

combination of impairments that significantly limited his ability

to perform basic work-related activities for 12 consecutive

months. Thus, he found that Plaintiff did not have a severe

impairment or combination of impairments through March 31, 1992,

his date last insured, and as a result, was not under a disability

as defined in the Social Security Act at any time through his date

last insured. (Tr. 19).

The record consists of various documents from the VA which

detail Plaintiff’s medical treatment over a lengthy period.

However, none of the documents pertain to the period in question.

The earliest documents included in the record are from January

1994, some 8 months after March 31,1992, Plaintiff’s date last

insured and alleged onset date. 

A review of those documents from 1994 shows that Plaintiff

was treated at Mobile’s VA Outpatient Clinic at least twelve times

during 1994, and that several of those visits were at the Mental

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Health Center. (Tr. 159-160, 324, 463). Also included in the

records are the results of a knee x-ray on July 5, 1994, which

showed moderate degenerative changes bilaterally, slightly greater

on the right than the left, and joint effusion bilaterally. (Tr.

269). Additionally, the documents reflect that a chest x-ray on

January 24, 1994 was normal. (Tr. 269-270). 

The record also contains a VA Rating Decision dated February

25, 2002, and a letter from the VA dated March 8, 2002. 

According to the VA Rating Decision, Plaintiff has a 10 percent

service-connected disability, based on diabetes mellitus, type 2,

effective March 26, 2001, and a 100 percent disabled serviceconnected disability, based on PTSD, effective December 13, 1993.

In the statement of facts in this determination, the VA refers to

VA mental status examinations on March 23, 1994 and August 25,

1997, and to Plaintiff’s hospitalization from February 3, 1998 to

April 10, 1998 for treatment of PTSD. Also included in the

statement is the report of a VA examination on June 27, 2001,

which states that Plaintiff reported that he was divorced from his

wife because of his PTSD, and that Plaintiff had not provided that

information to the VA. The VA Rating Decision states that based

on this evidence, Plaintiff’s effective date for Plaintiff’s PTSD

was amended from an effective date of October 8, 1999 to an

effective date of December 13, 1993, the date his initial claim

was received by the VA. The March 2002 letter merely sets forth

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the amount of benefits he can expect to receive. (Tr. 69-75).

1. Whether the ALJ’s finding that a prior ALJ

decision was not re-opened is subject to

judicial review.

While not specifically raised by Plaintiff, Defendant addresses the

issue of whether Plaintiff’s current application effectively reopens a

final unfavorable decision by ALJ Ragland in March 1996, which was not

appealed. According to Defendant, Plaintiff does not meet any of the

criteria that would compel the agency to reopen his claim at this time.

In determining that ALJ Ragland’s March 1996 decision is not

reopened by the current application, ALJ Smith stated as follows:

Sections 404.987 through 404.989 provide, in part, that

a decision or determination which has become final and

binding may be reopened under the following

circumstances:

1. Within 12 months of the date of the notice of

the initial determination for any reason;

2. Within four years of the date of the notice of

the initial determination if good cause is

found;

or

3. At any time if fraud or similar fault is

involved or any other specific condition set

forth in 20 CFR 404.988( c) is met. 

The regulations provide that good cause will be found

where (1) new and material evidence is furnished; (2)

there is a clerical error in the computation or

recomputation of benefits; or (3) there is error on the

face of the evidence on which such determination or

decision was based. 

The claimant is clearly outside the time limits for

reopening as described above. I find no evidence that

establishes the presence of fraud, similar fault or other

conditions specified in 20 CFR 404-988( c). Given the

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A claim may be reopened at any time for one of eleven

fact-specific reasons that do not apply to this case. 20 C.F.R. §

404.988(c)(1)-(11).

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near 10-year gap between the claimant’s initial denial in

1994 and his current application, his March 31, 1992 date

last insured and the administrative law judge decision

published on March 1, 1996, I conclude that there is no

regulatory basis to reopen Judge Ragland’s decision. As

such, I find that Judge Ragland’s decision is the

Commissioner’s final and binding decision on all matters

related to the claimant’s alleged disability through

March 1, 1996, and the decision is not subject to

reopening or revision.

(Tr. 17-18). 

The Commissioner can reopen and revise a final determination

on his own initiative. 20 C.F.R. § 404.987(b). He may do so within

a year for any reason, within four years for good cause, and at any

time for certain enumerated reasons3. 20 C.F.R. § 404.988; see also

20 C.F.R. § 404.989(a) (defining good cause as new and material

evidence, clerical error in benefit computation, or clear error on

the face of the decision).

The Court's jurisdiction over the present action is governed

by 42 U.S.C. § 405(g), which provides for judicial review only of

"any final decision of the Commissioner of Social Security made

after a hearing." 42 U.S.C. § 405(g). As a general matter, district

courts do not have jurisdiction over the [Commissioner's] refusal

to reopen a claim since such a decision is not a "final decision"

within the meaning of 42 U.S.C. § 405(g). Califano v. Sanders, 430

U.S. 99, 107-108, 97 S.Ct. 980, 985-86, 51 L. Ed. 2d 192 (1977);

Case 1:08-cv-00399-CG-B Document 19 Filed 02/04/10 Page 10 of 16
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Sherrod v. Chater, 74 F.3d 243, 245 (11th Cir. 1996); Stone v.

Heckler, 778 F.2d 645, 646-647 (11th Cir. 1985). However, there is

jurisdiction where a plaintiff challenges the Commissioner's

decision on constitutional grounds. Califano, supra, 430 U.S. at

109. Additionally, the Eleventh Circuit has noted that the "law is

well established that judicial review under § 405(g) is available

when a social security claim is in fact reopened and reconsidered

on the merits to any extent at any administrative level." Macon v.

Sullivan, 929 F.2d 1524, 1529 (11th Cir. 1991).

In the case sub judice, the ALJ held that res judicata did not

apply to the denial of Plaintiff’s prior applications, and that

given the ten year gap between Plaintiff’s initial denial in 1994

and his current application, the fact that he was last insured on

March 31, 1992, and ALJ Ragland’s decision dated March 1, 1996,

there was no regulatory basis to reopen ALJ Ragland’s decision.

The ALJ then went on to consider the merits of Plaintiff’s claims,

which alleged a disability dating back to March 31, 1992, and held

that there was no medical evidence in the record to establish the

presence of a “severe” impairment or combination of impairments on

or before March 31, 1992, Plaintiff’s date last insured. 

Upon consideration of the record evidence, the undersigned

finds that assuming arguendo that a de facto reopening occurred

based on the ALJ’s alternative findings, his decision that

Plaintiff was not under a disability as defined by the Social

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Security Act at any time through March 31, 1992 is supported by

substantial evidence. As noted supra, in Plaintiff’s Amended

Complaint, he essentially argues that he is entitled to disability

benefits because he was previously denied benefits based on a VA

determination that was later revised to grant him 100 percent VA

disability. According to Plaintiff, based on that VA revision, the

SSA should find him disabled. (Doc. 4 at 1).

Defendant responds that the only evidence presented by

Plaintiff in support of his claim for disability benefits postdates

his date last insured by nearly two years. He further argues that

the VA decision, which is relied upon by Plaintiff, is dated six

years after Plaintiff’s date last insured, and that the VA decision

that found Plaintiff disabled as of December 1998, is dated

eighteen months after his date last insured. According to

Defendant, Plaintiff has not carried his burden of proving he was

disabled prior to his date last insured. 

In finding that Plaintiff did not meet his burden of showing

that he was disabled during the period of consideration, ALJ Smith

stated the following:

[I] also find that there is simply no medical evidence

that confirms the existence of an impairment, or

combination of impairments, that resulted in more than

minimal functional limitations prior to March 31, 1992.

Such an impairment or combination of impairments must be

either expected to result in death or “it must have

lasted or must be expected to last for a continuous

period of at least twelve months.”. . . The statement of

a claimant is not sufficient to establish the existence

of an impairment . . . . There must be an abnormality

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shown by medically acceptable clinical and laboratory

techniques.

. . . . . . . . . . . . . . . . . . . . . . . . . . . .

There is a glaring absence of radiographic studies,

laboratory analyses and physical/mental evaluations on or

before March 31, 1992 establishing any significant

disease process that could reasonably be expected to

inhibit the claimant’s functional capacity. 

 

(Tr. 18). 

To qualify for a period of disability and disability insurance

benefits, a Plaintiff must prove that he has a medically

determinable impairment or impairments that are severe enough to be

disabling, and that the impairment became disabling while he was

insured for disability purposes. Benjamin v. Apfel, 2000 U.S. Dist.

LEXIS 13752, at *9 (S.D. Ala., Aug. 2, 2000). Additionally, the

mere onset or diagnosis of a disease does not establish that it

became disabling prior to the expiration of a Plaintiff’s insured

status. Natale, v, Commissioner of Social Security, 2008 U.S.

Dist. LEXIS 5717, *13, (M.D. Fla. Jan. 25, 2008). 

In this case, the date Plaintiff was last insured is March 31,

1992. (Tr. 49). Plaintiff relies on VA Rating Decisions dated

August 22, 2001 (Doc. 9 at 5), September 6, 2001 (Doc. 9 at 3-4),

February 25, 2002 (Doc. 1 at 1-3), and March 8, 2002 (Doc. 1 at 5-

8) as supporting his claim; however, those documents relate to the

VA’s findings of 100 percent disability, effective December 13,

1993, some twenty months after the expiration of Plaintiff’s

insured status. There is no evidence that Plaintiff experienced

Case 1:08-cv-00399-CG-B Document 19 Filed 02/04/10 Page 13 of 16
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any functional limitations of any sort prior to his date last

insured. Accordingly, substantial evidence supports the ALJ

determination that Plaintiff failed to meet his burden of showing

that he had a severe medically determinable impairment or

impairments that were disabling while he was insured for disability

purposes. 

V. Conclusion

For the reasons set forth, and upon consideration of the

administrative record and memoranda of the parties, it is

RECOMMENDED that the decision of the Commissioner of Social

Security, denying Plaintiff’s claim for period of disability and

disability income benefits be AFFIRMED.

The attached sheet contains important information regarding

objections to this Report and Recommendation.

DONE this 4th day of February, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:08-cv-00399-CG-B Document 19 Filed 02/04/10 Page 14 of 16
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The Court’s Local rules are being amended to reflect the

new computations of time as set out in the amendments to the

Federal Rules of Practice and Procedure, effective December 1,

2009.

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen (14) days of the date of

service of this document, file specific written objections with the

clerk of court. Failure to do so will bar a de novo determination

by the district judge of anything in the recommendation and will

bar an attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)©; Lewis v. Smith, 855 F.2d 736,

738 (11th Cir. 1988). The procedure for challenging the findings

and recommendations of the magistrate judge is set out in more

detail in SD ALA LR 72.4 (June 1, 1997), which provides, in part,

that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a

“Statement of Objection to Magistrate Judge’s

Recommendation” within ten days4 after being served with

a copy of the recommendation, unless a different time is

established by order. The statement of objection shall

specify those portions of the recommendation to which

objection is made and the basis for the objection. The

objecting party shall submit to the district judge, at

the time of filing the objection, a brief setting forth

the party’s arguments that the magistrate judge’s

recommendation should be reviewed de novo and a different

disposition made. It is insufficient to submit only a

copy of the original brief submitted to the magistrate

judge, although a copy of the original brief may be

submitted or referred to and incorporated into the brief

in support of the objection. Failure to submit a brief

in support of the objection may be deemed an abandonment

of the objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Opposing party’s response to the objection. Any opposing

party may submit a brief opposing the objection within fourteen

Case 1:08-cv-00399-CG-B Document 19 Filed 02/04/10 Page 15 of 16
(14) days of being served with a copy of the statement of

objection. Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedings tape recorded).

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate

judge finds that the tapes and original records in this action are

adequate for purposes of review. Any party planning to object to

this recommendation, but unable to pay the fee for a transcript, is

advised that a judicial determination that transcription is

necessary is required before the United States will pay the cost of

the transcript.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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