     Case: 12-10588       Document: 00512119940         Page: 1     Date Filed: 01/22/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         January 22, 2013

                                     No. 12-10588                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



HEATHER R. DASHTI,

                                                  Plaintiff-Appellant
v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:11-CV-196


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       On October 26, 2007, Heather R. Dashti applied for disability insurance
benefits. The state disability determination service denied benefits, finding that
Dashti was not disabled before her Title II insured status lapsed.                        An
Administrative Law Judge (“ALJ”) also denied benefits after a hearing. Dashti
sought review of the ALJ’s decision by the Appeals Council, which denied her
request for review. Dashti filed suit against the Commissioner of the Social


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                            No. 12-10588

Security Administration (“SSA”) under 42 U.S.C. § 405(g). The district court
upheld the denial of benefits. We AFFIRM.
                                 FACTUAL BACKGROUND
       On October 26, 2007, Dashti filed applications for disability insurance
benefits and Supplemental Social Security benefits due to her bipolar disorder
and manic depression. Dashti’s application for Supplemental Social Security
benefits was initially denied. On reconsideration, the disability determination
service found that she was disabled as of October 26, 2007, which was the
protective filing date of her application.1 Although Dashti was found to be
disabled as of October 26, 2007, and eligible for Supplemental Social Security
benefits, she was nonetheless denied disability insurance benefits because it was
determined that she was not disabled as of December 31, 2006, the date her Title
II insured status expired.2
       Dashti has a general equivalence degree. She has been employed as a
retail sales clerk and a telephone operator. She has been unemployed since
2001, which is also when she alleges that she became disabled and unable to
work due to bipolar disorder and manic depression. Dashti has a history of


       1
           The protective filing date is:

       [T]he date a written statement, such as a letter, an SSA questionnaire or some
       other writing, is received at a social security office, at another Federal or State
       office designated by [the SSA], or by a person [the SSA] ha[s] authorized to
       receive applications for [it] as the filing date of an application for benefits.

20 C.F.R. § 416.340. The SSA will use this date rather than the date of the official signed
application for benefits “if the use of that date will result in [a claimant’s] eligibility for
additional benefits.” Id.
       2
         While eligibility for Supplemental Social Security income and disability insurance
benefits turns on a finding of disability, the critical time period under each program differs.
As the ALJ noted, Dashti must prove the onset of her disability prior to the expiration of her
insured status, which occurred on December 31, 2006. See Owens v. Heckler, 770 F.2d 1276,
1280 (5th Cir. 1985). A determination that Dashti was entitled to Supplemental Social
Security benefits did not mean she was also entitled to disability insurance benefits.

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                                   No. 12-10588

depression dating back to her youth.
      The earliest relevant medical record, a 2004 psychiatric nursing report,
reveals that Dashti was an established patient at the John Peter Smith Hospital
in Fort Worth, Texas. Although Dashti indicated that she sought to reestablish
care at the facility during the 2004 visit, there is no indication that she received
any psychiatric care at that time. On April 11, 2005, Dashti returned to Smith
Hospital on referral by her primary physician for a psychiatric evaluation.
Dashti had given birth to twins on December 16, 2004, and was experiencing
symptoms of postpartum depression. Dr. Elma Granado evaluated Dashti and
noted that while her mood was depressed, she denied any thoughts of harming
herself or others.   Dr. Granado found Dashti to be alert and cooperative,
although she was slow to respond to questioning. Dr. Granado diagnosed Dashti
with a depressive disorder and advised her to continue taking the anti-
depressant, Zoloft, as prescribed by her primary physician.
       On June 16, 2005, Dashti returned to Smith Hospital for her first follow-
up visit. Dashti reported frequent crying spells, mood swings, insomnia, and
occasional difficulty breathing.    The doctor who evaluated her noted that
Dashti’s mood was depressed and that she was slow to respond to questioning.
Nonetheless, the doctor indicated that Dashti was cooperative, alert, and
exhibited no defects in her intellectual faculties. An anti-psychotic, Risperdal,
was added to Dashti’s medication regimen.
      Dashti returned to Smith Hospital on July 7, 2005. Dashti reported that
her depression and insomnia had worsened. She also stated she did not want to
continue taking Risperdal, so the doctor discontinued the medication and added
a second anti-depressant, Remeron.
      Dashti continued regular follow-up visits with Smith Hospital until the
expiration of her Title II insured status on December 31, 2006. During that
time, she reported no more than moderate problems performing daily activities

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                                      No. 12-10588

and functioning socially.3 She consistently denied suicidal thoughts, delusions,
or hallucinations.
       Dashti also alleged that she suffered from a disabling knee injury. On
November 1, 2007, Dashti was examined by Dr. Johnny Gibbs, due to pain in her
right knee. Dashti reported that she fell in her kitchen in October 2006. Dashti
had an MRI in September 2007, which revealed a torn meniscus. Dr. Gibbs’s
report states that palpation of Dashti’s knee revealed no significant findings.
Dashti retained full range of motion, but she complained of pain when she fully
extended her knee. Dr. Gibbs recommended a home exercise program and
prescribed Aleve for pain.
                                     DISCUSSION
       Dashti is proceeding pro se in her appeal.                She argues that the
Commissioner erred in determining that she was not disabled prior to the
expiration of her Title II insured status which made her ineligible for disability
benefits.4 This court’s review of the Commissioner’s eligibility determination is
limited to “whether the Commissioner applied the proper legal standards and
whether substantial evidence in the record supports his decision.” Jones v.
Astrue, 691 F.3d 730, 733 (5th Cir. 2012). Substantial evidence is defined as
“such relevant evidence as a reasonable mind might accept to support a
conclusion. It is more than a mere scintilla and less than a preponderance.”
Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). “If the Commissioner’s
findings are supported by substantial evidence, they must be affirmed.” Id.

       3
         At each Smith Hospital visit, Dashti was asked to rate her problems in these areas
on a scale of 1 to 7, with 1 signifying no problems, 4 signifying moderate problems, and 7
signifying extreme problems.
       4
         Dashti also argues that the SSA incorrectly assessed against her an overpayment of
Supplemental Social Security benefits.       Dashti has not shown she exhausted her
administrative remedies with respect to this issue. It is therefore not properly before this
court for review. See 42 U.S.C. § 405(g) (requiring a “final decision of the Commissioner of
Social Security made after a hearing” before judicial review).

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      In considering Dashti’s claim of disability, the ALJ employed the five-step
sequential evaluation process established by the SSA. The evaluation process
calls for consideration of whether (1) the claimant is engaged in substantial
gainful activity; (2) the claimant has a severe, medically determinable mental
or physical impairment; (3) the impairment meets or equals a listed impairment
in Appendix 1 of the regulations; (4) the impairment prevents the claimant from
doing past relevant work; and (5) the impairment prevents the claimant from
doing any other work. Id. at 453; 20 C.F.R. § 404.1520(a)(4)(i)-(v).
      The ALJ found that Dashti had not engaged in substantial gainful activity
since November 1, 2001. The ALJ also found that Dashti suffered from severe
impairments as a result of her depression and her knee injury. The ALJ
concluded, however, that she did not have an impairment or combination of
impairments that met or equaled the severity of any listed impairment for which
she would be found presumptively disabled.
      While the ALJ determined that Dashti’s mental and physical impairments
were not incapacitating, he found that they did impose work-related limitations
on Dashti. Specifically, the ALJ found that Dashti’s manic depression affected
her ability to concentrate, limiting her to jobs that required only non-complex
work instructions. The ALJ also found that despite Dashti’s knee injury, she
continued to perform a wide range of daily activities, including caring for her
three young children, cleaning the house, washing the dishes, doing laundry, and
cooking for her family. Accordingly, the ALJ concluded that Dashti retained the
capacity to perform light-work duties.
      Given Dashti’s mental and physical limitations, the ALJ concluded that
she did not retain the residual functional capacity to perform her past relevant
work. The ALJ concluded, however, that there were jobs in significant numbers
in the national economy that Dashti could have performed. A vocational expert
testified at the administrative hearing before the ALJ that an individual with

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Dashti’s vocational characteristics and work-related mental and physical
limitations was suited for alternate jobs such as a hand packer, an assembler,
and an inspector. The vocational expert testified that these are unskilled, non-
complex jobs that require only light exertion. Additionally, these jobs existed in
significant numbers in the state and national economies.
      The ALJ’s finding that Dashti was not disabled prior to the expiration of
her Title II insured status is supported by substantial evidence. None of the
medical evidence in the record indicates that Dashti could not perform non-
complex, light-duty work. Dashti reported that she was able to care for her three
young children and perform a variety of household tasks despite her alleged
mental and physical disability. Furthermore, Dashti’s medical records reflect
that she consistently reported that her depression only moderately impaired her
daily activities, relationships, and social functioning.
      Because there is substantial evidence in the record to support the
Commissioner’s determination that Dashti was not disabled during the relevant
period, the district court’s denial of disability benefits is AFFIRMED.




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