U.S. Court of Appeals for the Eleventh Circuit, 2023

Sheila Diane Isbell v. Social Security Administration, Commissioner

U.S. Court of Appeals for the Eleventh Circuit · Decided March 23, 2023

Opinion

USCA11 Case: 22-10938 Document: 29-1 Date Filed: 03/23/2023 Page: 1 of 4

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-10938 Non-Argument Calendar ____________________ SHEILA DIANE ISBELL, Plaintiff-Appellant, versus SOCIAL SECURITY ADMINISTRATION, COMMISSIONER, Defendant-Appellee.

____________________ Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 4:20-cv-01379-SGC ____________________ USCA11 Case: 22-10938 Document: 29-1 Date Filed: 03/23/2023 Page: 2 of 4

2 Opinion of the Court 22-10938 Before JORDAN, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM: Sheila Isbell appeals from the district court’s order affirming the Social Security Commissioner’s denial of her application for a period of disability and disability insurance benefits. She argues that the ALJ failed to (1) properly consider her Department of Vet- erans Affairs disability rating and (2) properly determine her date of disability.

I In Social Security appeals, we ask whether the Commis- sioner’s decision is supported by substantial evidence. See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). We review de novo the legal principles upon which the Commissioner bases the decision. See id. Because the Appeals Council declined to review the ALJ’s decision, we review it as the Commissioner’s final deci- sion. See Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).

A decision by another government agency that a claimant is disabled or entitled to benefits is not binding on the SSA and is nei- ther valuable nor persuasive. See 20 C.F.R. §§ 404.1504, 404.1520b(c)(1), 416.920b(c)(1). Therefore, when considering claims filed on or after March 27, 2017, the SSA will not provide any analysis in its decisions about a determination made by another agency. See 20 C.F.R. § 404.1504. The SSA, however, will consider all supporting evidence underlying the other agency’s decision.

See id. USCA11 Case: 22-10938 Document: 29-1 Date Filed: 03/23/2023 Page: 3 of 4

22-10938 Opinion of the Court 3 II We first address whether the ALJ failed to properly consider Ms. Isbell’s VA disability rating. Ms. Isbell filed her application for disability on August 28, 2017, after the March 27, 2017, effective date of the SSA’s new regulations concerning the weight afforded other agencies’ disability determinations. See 20 C.F.R. § 404.1504.

The ALJ was therefore not required to (and did not) give weight to the VA’s disability determination in ruling on Ms. Isbell’s applica- tion. And because prior versions of § 404.1504 are irrelevant to Ms. Isbell’s claims, so too are our decisions interpreting that provision.

See, e.g., Noble v. Comm’r of Soc. Sec., 963 F.3d 1317 (11th Cir. 2020) (discussing § 404.1504 (2016)). Additionally, to the extent that Ms. Isbell argues that the ALJ failed to consider the evidence underlying the VA’s disability determination, she waived any such argument by raising it for the first time in her reply brief. See Ac- cess Now, Inc. v. S.W. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). Nevertheless, our review shows that the ALJ did consider the underlying evidence, including the VA’s medical records.

We next consider whether the ALJ erred by failing to seek medical advice concerning the onset date of Ms. Isbell’s disability under SSR 83-20. In relevant part, SSR 83-20 states that: “In addi- tion to determining that an individual is disabled, the deci- sionmaker must also establish the onset date of disability.” SSR 83- USCA11 Case: 22-10938 Document: 29-1 Date Filed: 03/23/2023 Page: 4 of 4

4 Opinion of the Court 22-10938 20, 1983-1991 Soc. Sec. Rep. Serv. 49 (Jan. 1, 1983). The onset date of disability is “the first day an individual is disabled.” Id. 1 Accordingly, the ALJ must necessarily determine whether an applicant is disabled before determining the onset date of disa- bility. Here, the ALJ found that Ms. Isbell was not disabled and therefore was not required to determine the onset date of disabil- ity. Accordingly, because she cannot show that the ALJ erred, there was no error by the Commissioner. See Doughty, 245 F.3d at 1278. 2 III The Commissioner did not err in denying Ms. Isbell’s appli- cation for a period disability and disability insurance benefits. The district court’s decision is affirmed.

AFFIRMED.

1 “Social Security Rulings are agency rulings ‘published under the authority of the Commissioner of Social Security and are binding on all components of the Administration.’” Sullivan v. Zebley, 493 U.S. 521, 530 n.9 (1990) (citation omitted).

2 As of October 2, 2018, SSR 18-01p replaced SSR 83-20. See Titles II and XVI: Determining the Established Onset Date (EOD) in Disability Claims, 83 Fed. Reg. 49613 (Oct. 2., 2018) (rescinding and replacing SSR 83-20). Under SSR 18- 01p, which came into effect while Ms. Isbell’s application was pending, the ALJ generally has discretion to determine whether to consult a medical expert to determine the EOD. See id. Assuming that SSR 18-01p governed her applica- tion, the ALJ was no longer required to consult a medical expert concerning her EOD. Compare SSR 83-20, with SSR 81-01p.

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