United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
BRIAN A. TSUCHIDA, Magistrate Judge.
Plaintiff Carol Geschke seeks review of the Commissioner's decision that she was not entitled to expedited reinstatement of her Disability Insurance Benefits before March 2002. She claims the ALJ should have found her eligible to file for expedited reinstatement of benefits in 1998 and should have extended the time for filing for these benefits until March 2003. Dkt. 1 at 61-64. As discussed below, the Court recommends the Commissioner's decision be AFFIRMED and the case DISMISSED with prejudice.
A. Procedural history
This matter has a lengthy procedural history at both the administrative and federal court levels. For a full discussion of this history, see the Court's previous Report and Recommendation in this case (Dkt. 18) and the previous decision in Geschke v. Astrue, No. C08-323-MAT, Dkt. 39 (W.D. Wash. Sept. 18, 2008). Briefly, the facts most relevant to the issue at hand are as follows:
Ms. Geschke began receiving disability benefits in 1994. From 1995 through 2001, she engaged in substantial gainful activity. She continued to receive disability benefits during this time. In March 2007, the ALJ issued a decision that Ms. Geschke was ineligible for disability benefits from December 1998 through August 2003. The Appeals Council denied review of that decision, and this Court and the Ninth Circuit affirmed. That decision did not address the issue of overpayment.
In January 2011, the ALJ issued a decision finding that Ms. Geschke was not entitled to disability benefits for the period from March 1996 through February 2002; she was overpaid $72, 759.38 during that period of time; the ALJ did not have jurisdiction over the question of waiver of recoupment of the overpayment because there was no initial determination by the Social Security Administration; and the SSA correctly concluded she was entitled to expedited reinstatement of her disability benefits effective in March 2002, but not before that date. Tr. 27-44. The Appeals Council denied Ms. Geschke's request for review and request for a hearing regarding waiver of recoupment of the overpayment. Tr. 7-8. The ALJ's January 2011 decision therefore became the Commissioner's final decision.
Ms. Geschke filed this case, appealing the January 2011 decision and alleging a number of other claims. Dkt. 1 (Complaint). The Commissioner filed a motion to dismiss and for a more definite statement. Dkt. 11. The undersigned Magistrate Judge issued a Report and Recommendation recommending dismissing most claims and specifying which claims and allegations should survive. Dkt. 18. The Court adopted the R&R and referred the matter back to the undersigned for resolution of the remaining claims. Dkt. 19.
While the resolution of the motion to dismiss was pending, Ms. Geschke's counsel was suspended from the practice of law before this Court. Dkt. 13. As Ms. Geschke did not retain new counsel, she is now proceeding pro se in this matter. The Court issued a scheduling order, permitting Ms. Geschke to file an opening brief discussing her remaining claims and directing the Commissioner to file a responsive brief even if Ms. Geschke did not file an opening brief. Dkt. 21. Ms. Geschke did not file an opening brief. The Commissioner filed a responsive brief. Dkt. 23. The remaining claims are now ready for review.
B. The remaining allegations 
Ms. Geschke alleges that she was found to be disabled in 1995 and that her disability continues to the present date. Dkt. 1 ¶ 2.1-2.2. She alleges that she was found to be entitled to disability benefits and started receiving those benefits. Id. ¶ 2.4. She alleges that she returned to work in 1996, although she remained disabled and unable to fulfill the conditions of her employment. Id. ¶ 2.5. She alleges that in 2001, she was fired from her employer due to her disability, and she has not worked since that time, also due to her disability. Id. ¶ 2.9.
She alleges that in 2003, the SSA issued a notice that her benefits would be terminated retroactively, to 1998 or 1996, and Ms. Geschke timely appealed and filed for reinstatement of benefits. Id. ¶ 2.11. She alleges that her request for reinstatement was granted, but only as of the date for her request for reinstatement, not going back to 1998. Id. ¶ 2.12. She alleges that she should be granted reinstatement of benefits back to 1998, since it was impossible for her to have requested expedited reinstatement of benefits prior to the 2003 notice. Id. ¶ 2.13. She alleges that the SSA has never analyzed the issue of whether the expedited reinstatement application should have been considered to have been filed at an earlier date, and that SSA has taken the position that since the 2003 request for expedited reinstatement was timely and was granted, there is no need to consider whether an earlier filing date should be assumed as a matter of equity. Id. ¶ 2.14-2.15.
She alleges that in 2003 the SSA issued a notice that Ms. Geschke's benefits would be terminated retroactively, to 1998 or 1996, and issued an overpayment notice, which Ms. Geschke appealed. Id. ¶ 2.16. She alleges that she received a first notice in late February 2003 that her disability as of 1995 was in question and that she timely responded, requesting the basis for the SSA's decision and requesting reconsideration. Id. ¶ 2.18-2.19. She alleges that after receiving the February 2003 notice, she applied for redetermination of her eligibility for disability benefits, and a continuing disability review completed in March 2004 found her medically eligible for reinstatement of her benefits. Id. ¶ 2.20. She alleges that if she "had received timely notice from SSA, at any time in 1996, 1997, 1998, 1999, 2000, or 2001, she could have obtained the same Continuing Disability Review ...