                Case: 15-11291       Date Filed: 05/02/2016      Page: 1 of 3


                                                                      [DO NOT PUBLISH]

                     IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT

                                  ________________________

                                        No. 15-11291
                                  ________________________

                             D.C. Docket No. 5:13-cv-00374-MTT

JOSEPH J. TOMASZEWSKI,

                                                                        Plaintiff-Appellant,

                                            versus

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL SECURITY,

                                                                     Defendant-Appellee.
                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Georgia
                            ________________________

                                       (May 2, 2016)

Before JORDAN and BLACK, Circuit Judges, and KALLON, ∗ District Judge.

PER CURIAM:




∗
  Honorable Abdul K. Kallon, United States District Judge for the Northern District of Alabama,
sitting by designation.
                 Case: 15-11291        Date Filed: 05/02/2016        Page: 2 of 3


       Joseph Tomaszewski appeals the district court’s order affirming the Social

Security Commissioner’s (“the Commissioner”) denial of his application for

Supplemental Security Income (“SSI”). 1 Specifically, Tomaszewski argues that

res judicata applied to his prior benefits award and the award should have

presumptively continued under Simpson v. Schweiker, 691 F.2d 966 (11th Cir.

1982).     Because Simpson only applies in benefits continuation cases and this

appeal stems from a new application Tomaszewski filed, we affirm the decision of

the district court.2

       An ALJ awarded Tomaszewski SSI benefits in 2004. Sometime thereafter,

Tomaszewski’s wife inherited a substantial amount of money, which resulted in

Tomaszewski having an annual household income that exceeded the level allowed

for SSI. 3 As a result, the Commissioner terminated Tomaszewski’s benefits due to

       1
           Tomaszewski challenges for the first time in his reply brief the Commissioner’s denial
of his disability insurance benefits (“DIB”). We decline to address this issue because “an
appellant may not raise an issue for the first time in a reply brief.” United States v. Magluta, 418
F.3d 1166, 1185 (11th Cir. 2005) (citations omitted). Moreover, Tomaszewski abandoned any
arguments related to the denial of his application for DIB by not challenging the decision before
the district court. See Tomaszewski v. Colvin, 2015 WL 893523 *1 n.3 (M.D. Ga. Mar. 2, 2015);
see also Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) (quoting
Stewart v. Dep’t of Health & Human Servs., 26 F.3d 115, 115-16 (11th Cir. 1994) (“As a general
principle, this Court will not address an argument that has not been raised in the district court.”)).
       2
         In light of our decision that Simpson does not apply here, the Court need not decide
whether Congress overruled the presumption of continuing disability for benefit continuation
cases when it enacted 42 U.S.C. §423(f).
       3
          SSI benefits are “intended to provide only a subsistence level [of] income” to eligible
disabled persons. See, e.g., Fair v. Shalala, 37 F.3d 1466, 1467 (11th Cir. 1994) (citing 42
U.S.C. §§1382, 1382a).


                                                  2
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excess resources. Rather than challenging the termination of his SSI, Tomaszewski

filed instead a new application for SSI in 2009. The ALJ’s denial of this 2009

application is the subject of this appeal.

       We disagree with Tomaszewski’s contention that our decision in Simpson

dictates the presumptive continuation of his prior disability determination and that

res judicata should have barred the re-litigation of his disability status.4 The

decision to file a new application in 2009 takes Tomaszewski out of the Simpson

benefits continuation heartland, and, as a result, his reliance on Simpson is

misplaced. See Simpson, 691 F.2d at 969. Moreover, we agree with the district

court that res judicata does not apply because Tomaszewski’s new SSI application

covers a different time period, and involves new evidence that is independent from

the prior application. See Luckey v. Astrue, 331 F. App’x. 634, 638 (11th Cir.

2009). We also agree with the district court that the Commissioner’s decision as a

whole is supported by substantial evidence. See Lewis v. Callahan, 125 F.3d 1436

(11th Cir. 1997). We, therefore, affirm.

AFFIRMED.




       4
           Tomaszewski also argues that he should have received expedited reinstatement of his
benefits. However, this issue is not properly before this Court because he did not raise it with the
Commissioner. See 42 U.S.C. §405(g) (judicial review is available only after the Commissioner
issues a final decision).


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