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McQueary v. Colvin

United States District Court, W.D. Kentucky, Louisville Division

January 4, 2017



          Colin Lindsay, Magistrate Judge

         Before the Court is a Motion to Dismiss (DN 13) filed by defendant Commissioner of Social Security (“Commissioner”). Commissioner seeks to dismiss the complaint of plaintiff Timothy E. McQueary (“McQueary”) pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the grounds that the Court lacks subject matter jurisdiction. McQueary filed a response. (DN 15). Therefore, this matter is ripe for review.

         The parties have consented to the jurisdiction of a magistrate judge to enter judgment in this case with direct review by the Sixth Circuit Court of Appeals in the event an appeal is filed. (See DN 17). For the reasons below, the Court will grant the motion to dismiss.

         I. BACKGROUND

         On July 15, 2002, Plaintiff Timothy E. McQueary filed an application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”). On September 18, 2002, the Social Security Administration (“SSA”) denied that application based on medical grounds. (DN 13, p.1). McQueary did not seek further review of that denial. Due to McQueary's failure to seek further review, the September 18, 2002 initial determination became binding. Id.

         On July 20, 2009, McQueary filed an application for DIB stating that he became “unable to work because of [his] disabling condition on January 1, 2008.” (DN 9-5, p.2). The SSA sent a notice to McQueary on August 4, 2009 that he did not qualify for disability due to the fact that he lacked the sufficient work credits under Title II of the Act. (DN 9-4, p.2). Although McQueary failed to qualify for DIB under Title II of the Act, SSA sent a Notice of Award on January 22, 2010 informing him that he was eligible to receive Supplemental Security Income (“SSI”) payments under Title DIB of the Act. (Id. at 23). The notice explains that McQueary was eligible for SSI beginning on July 23, 2009, and that he was entitled to back payments from August 2009 through January 2010. (Id. at 24). McQueary is currently receiving those benefits.

         On September 30, 2011, McQueary filed another application for DIB, this time claiming that he had been disabled since July 30, 2000. (DN 9-5, p. 4). The SSA notified McQueary on December 29, 2011 that he did not qualify for disability benefits because he was not disabled under their rules. (DN 9-4, p. 6). After this notice denying him benefits, McQueary submitted a Request for Reconsideration on February 14, 2012. (Id. at 10). McQueary stated that he disagreed with the determination made on his claim because he “had enough work credits in 2002 and should have been approved.” Id. On February 20, 2012, SSA notified McQueary that his request for reconsideration had been denied. (Id. at 11). SSA explained that in order for McQueary to qualify for DIB, the evidence must show that his disability began on or before June 30, 2003, which was the day that he last met the earnings requirement for Social Security Disability Insurance Benefits. Id. SSA cited evidence from the Veterans Administration Hospital showing that McQueary claimed that he became disabled on July 30, 2000 due to PTSD, emotional problems, and a crushed and amputated left foot. Id. However, SSA disagreed with McQueary's claim and indicated that the medical evidence in McQueary's file was insufficient to establish the presence of any condition which would have kept him from working on or before July 30, 2003. Id.

         After his request for reconsideration was denied, McQueary submitted a Request for a Hearing by an Administrative Law Judge (“ALJ”) on March 5, 2012, stating that he disagreed with the SSA's determination and that he believed that his work credits “were in effect until June 30, 2003.” (Id. at 14). A Hearing Notice sent to McQueary in February provided that his hearing before the ALJ would be held on March 21, 2013. (DN 9-2, p. 27). The notice stated that during the hearing, the ALJ would consider whether McQueary was “disabled” under the provisions of the Act, and whether he had enough earnings to be insured for DIB. (Id. at 29). The notice also stated that SSA records indicated McQueary's “date last insured” to be June 30, 2003, and that the ALJ would have to find McQueary to be disabled on or before that date. Id. McQueary failed to appear at the March 21, 2013 hearing, due to the Hearing Notice being sent to the wrong address. (DN 9-4, p. 59; DN 9-4, p. 61). McQueary was then notified at the proper address that the hearing would be rescheduled to August 5, 2013. (DN 9-2, p. 16). The notice contained the same information as the notice for the prior hearing.

         On August 5, 2013, McQueary, appeared pro se at the hearing in front of the ALJ . (DN 9-2, p.28). The ALJ outlined that he would have to come to the determination that McQueary had been “disabled” under the Act on or before July 30, 2003. (Id. at 40). During the hearing, McQueary indicated that he had been disabled since July 30, 2000 and referenced an application from the year 2000; although it is likely that he was actually referring to his 2002 DIB application. (Id. at 41). The ALJ acknowledged that he had information that McQueary had applied for DIB in 2009, clarified that July 30, 2000 was the “alleged onset date” of last insured, and restated that the purpose of the hearing was for McQueary to prove that he was disabled on or before July 30, 2003 in order to receive insured benefits. (Id. at 41-42).

         On August 27, 2013, the ALJ issued his decision finding that McQueary was disabled based on his current application which was originally filed in 2011. (Id. at 9). Furthermore, the ALJ found that McQueary's earnings record showed that he had acquired sufficient quarters of coverage to remain insured through July 30, 2003, the alleged onset date. Id. Although the ALJ found McQueary to be disabled from July 30, 2000 through the date of his decision, he expressly found no “basis for reopening claimant's prior Title II application.” Id. (citing 20 C.F.R. §404.988).

         On September 19, 2013, McQueary submitted a Request for Review of Hearing Decision/Order requesting “a reopening of the prior title 2 application from 08/07/2002 with a protective filing of 07/23/2002.” (DN 9-2, p.5). The request states that “[McQueary] was told he was not able to appeal the decision because he was not insured for Title [II] benefits.” Id. On December 24, 2014, SSA Appeals Council notified McQueary that his request for review of the ALJ's August 2013 decision was denied, thus rendering the ALJ's decision the final decision of the Commissioner. (Id. at 2).

         On January 15, 2015, McQueary filed a complaint (DN 1), which is entitled “COMPLAINT FOR JUDICIAL REVIEW OF A DECISION OF THE COMMISSIONER OF SOCIAL SECURITY.” McQueary's allegations in the complaint are not entirely clear. McQueary indicates that his claim is for “Disability 2002.” (DN 1). McQueary also alleges that the “final decision of the Commissioner was erroneous, not supported by substantial evidence in the record, and/or contrary to the law.” (Id. at 2). On April 15, 2015, Commissioner filed a Motion for More Definite Statement, asking McQueary to clarify his claim. (DN 9). McQueary responded on April 23, 2015 stating “in [A]rticle 7 it states, it finds the claimant did not have insured status, but earnings were credited to his earnings record to correct errors apparent on the face of earnings record.” (DN 15).

         The best the Court can tell, McQueary requests back payment from his 2002 DIB application. He argues that although the SSA indicated that he did not have enough work credits as the reason for the denial of his application and his attempt to appeal, he actually did satisfy the work credits requirement because the earnings were later credited to his earnings record. McQueary did not submit any other documents in his complaint. He did include the Appeals Council's December 2014 Denial in his Response to Motion for More Definite Statement. (DN 15, p. 2). Commissioner submitted McQueary's “Administrative Record, ” consisting of numerous documents and exhibits which include: (1) August 5, 2013 Transcript of Oral Hearing (DN 9-2, p. 38); (2) August 27, 2013 ALJ Hearing Decision (DN 9-2, p. 6); (3) September 19, 2013 Request for Review of Hearing Decision/Order (HA 520) (DN 9-2, p. 5); (4) December 14, 2014 Appeals Council Denial (DN 9-2, p. 2); July 30, 2009 Application for Disability Insurance Benefits (DN 9-5, p. 2); and September 30, 2011 Application for Disability Insurance Benefits (DN 9-5, p.4).

         II. ...

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