Keller v. Commissioner of the Social Security Administration

Filing 24

ORDER granting 21 Defendant's Motion to Dismiss and denying as moot 11 Plaintiff's Request for Emergency Injunctive Relief, by Judge John L. Kane on 3/23/12.(gmssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 11-cv-2907-AP
DONA KELLER,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.

ORDER
Kane, J.
This matter is currently before me on Defendant’s Motion to Dismiss (doc. 21) and
Plaintiff’s Request for Emergency Injunctive Relief (doc. 11). Because Plaintiff fails to state a
claim upon which relief can be granted, Defendant’s Motion to Dismiss is GRANTED and
Plaintiff’s Request for Emergency Injunctive Relief is DENIED AS MOOT.
Background1
On August 12, 2008, Plaintiff Dona Keller filed applications for supplemental security
income and for Medicare coverage based on her government employment. Ms. Keller alleged
disability beginning on May 29, 2002, but she was only eligible for benefits from January 4,
2005 onward because she had not successfully appealed a January 4, 2005 decision denying an
earlier application for disability insurance benefits. After her 2008 applications were denied, she
successfully appealed those denials to an ALJ who found that she was disabled within the

1

These facts are taken from the August 19, 2010 decision of the Office of Disability
Adjudication and Review (doc. 22-2), at 12-17.

meaning of § 1614(a)(3)(A) of the Social Security Act effective December 6, 2005. He denied
benefits for the period from January 4, 2005 to December 6, 2005, finding Ms. Keller had failed
to provide any medical evidence of a disability during that period.
On October 10, 2010, Ms. Keller requested a review of the ALJ’s decision. Specifically,
she contested the ALJ’s finding that she was ineligible for benefits for the period pre-dating
December 6, 2005. After the Social Security Appeals Council denied her request for review, Ms.
Keller filed the instant action. Ms. Keller renews her challenge to the ALJ’s decision denying
her disability coverage for the period pre-dating December 6, 2005.2 She also seeks an order
directing Defendant to provide her with an orthopedic examination of her knees, left hip, and left
ankle. I address each of these issues in turn.
Discussion
Denial of Benefits for Period Pre-Dating December 6, 2005
Ms. Keller argues that the ALJ erred in denying her benefits for the period pre-dating
December 6, 2005. She alleges that, contrary to the ALJ’s finding, she appealed the 2005
decision denying her social security benefits. Although incorrect, the import of face correct, the
import of the ALJ’s finding is accurate.
Ms. Keller’s appeal of the 2005 decision was dismissed without prejudice for failure to
comply with the pleading requirements of Fed. R. Civ. P. 8(a). See Order and Judgment of
Dismissal (doc. 30), Keller v. Commissioner of Social Security, No. 05-cv-00809 (D. Colo.
July 29, 2005). Ms. Keller failed to re-file her appeal, and she is barred from appealing the
earlier denial of benefits. Accordingly, the ALJ properly concluded that she was ineligible for

2

Ms. Keller’s complaint is not a model of clarity. Because she appears pro se in this matter,
however, I liberally construe her pleadings.

benefits for the period pre-dating January 4, 2005.
Furthermore, Ms. Keller is ineligible to receive any benefits under either Social Security
or Medicare for the period from January 4, 2005 through December 5, 2005. Ms. Keller filed
her application for benefits on August 12, 2008. Thus, she became eligible for Social Security
benefits on September 12, 2008 and Medicare benefits on August 21, 2007. See 20 C.F.R.
§416.335 (social security benefits are only available to claimants starting one month after the
date the application for benefits was filed); 42 C.F.R. § 406.15(e) (“not more than 12 months
before the month of the application may be counted towards the 25-month qualifying period” for
medicare benefits). Even if she were to succeed on her appeal, she could not receive any
meaningful relief. Accordingly, her argument is properly dismissed for failure to state a claim
upon which relief can be granted.
Request for a New Medical Exam
Ms. Keller also claims that her injuries are more serious than previously determined. She
requests an order directing Defendant to provide an orthopedic doctor to evaluate her knees, left
hip, and left ankle. Although Ms. Keller seeks an injunction ordering orthopedic exams, I am
unable to grant such relief because it is beyond my jurisdiction.
Pursuant to section 42 U.S.C. 405(g), “[a]ny individual, after any final decision of the
Commissioner of Social Security made after a hearing to which he was a party, . . . may obtain a
review of such decision by a civil action” in federal district court. Although the Social Security
Act does not define “final decision,” at a minimum a party must request review from the Social
Security Appeals Council.
Ms. Keller has failed to exhaust her remedies with respect to her request for a
consultative orthopedic evaluation. The only decision at issue in this case, the ALJ’s decision

finding her disabled as of December 6, 2005, addressed only her disability claims. Thus, I lack
subject matter jurisdiction over this claim and it must be dismissed.
Furthermore, even if Ms. Keller had exhausted all administrative remedies, I am without
power to grant the relief she seeks. Although I am empowered to review final decisions of the
Commissioner, my review is limited to the record before the Commissioner at the time of his
decision. I am not empowered to order the creation of evidence.
Conclusion
Based on the foregoing discussion, Defendant’s Motion to Dismiss is GRANTED and
Plaintiff’s Request for Emergency Injunctive Relief is DENIED AS MOOT.

Dated: March 23, 2012

BY THE COURT:
/s/ John L. Kane
Senior U.S. District Judge