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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11787
Non-Argument Calendar
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D.C. Docket No. 3:17-cv-00976-MCR-MJF
RUTH ELLEN REEVES,
Plaintiff–Appellant,
versus
SOCIAL SECURITY COMMISSIONER,
Defendant–Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(November 19, 2019)
Before WILLIAM PRYOR, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
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Ruth Ellen Reeves, pro se, appeals the district court’s order affirming the
decision of the Social Security Commissioner (“Commissioner”) to deny her
application for disability insurance benefits (“DIB”). We affirm.
I. BACKGROUND
On March 4, 2015, Reeves applied for a period of disability and DIB,
alleging disability beginning on March 1, 2014. In her disability report, Reeves
indicated that she had stopped working because she had suffered from: ruptured
discs in her neck and back; back problems; a triple discectomy with fusion related
to a neck break on three levels; continued migraines following months of migraine
attacks; controlled diabetes; and arthritis in many parts of her body stemming from
injuries. Reeves previously had worked as a cashier, sales attendant, and
customer-service representative. Her application was initially denied in March
2015, after which she filed a written request for an administrative hearing before
an administrative law judge (“ALJ”). While the hearing was scheduled for
February 2017, it actually occurred in May 2017.
At the May 2017 hearing, the ALJ added to the record all of the evidence
that previously had been submitted, as well as the evidence submitted during the
hearing. The ALJ heard testimony from Reeves; Reeves’s daughter; and Rick
Freeman, a vocational expert (“VE”). According to Reeves’s testimony, she had
not worked full time since 2006. She had stopped working because her neck had
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been “severely broken on three levels,” she had been diagnosed with a severe case
of degenerative disc disease, and her liver was “real bad.” Reeves’s daughter
testified regarding a car accident in April 2014 in which Reeves broke her neck for
a second time. She also testified that Reeves was incapable of doing most of her
daily activities because she was extremely limited by her pain and migraines.
The VE testified that Reeves’s past work as a cashier and sales attendant had
involved light and unskilled work, while her work as a customer service
representative had involved light and semi-skilled work. The ALJ asked the VE
whether a hypothetical person could perform Reeves’s past work, where that
person: had the same educational and vocational history; could perform the full
range of medium work with occasional postural and manipulative limitations; had
environmental limitations regarding vibrations, hazardous machines, heights, and
respiration; and had no mental limitations. The VE responded that someone with
those limitations could perform Reeves’s past work. The VE then offered the
positions of information clerk, mail clerk or mail sorter, parking lot attendant, and
office helper as jobs available in the national economy that someone with those
limitations could perform.
The record also included the medical opinions of Dr. Efren Baltazar and Dr.
Stephen Schwartz. Dr. Baltazar, who opined on Reeves’s residual functional
capacity (“RFC”) in May 2015, found that, notwithstanding her bulging discs and
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slight neural foraminal encroachment, Reeves could: occasionally lift and/or carry
50 pounds; frequently lift and/or carry 25 pounds; sit, stand and/or walk for 6 hours
in an 8-hour workday; and push and/or pull in accordance with her lifting
restrictions. However, Dr. Baltazar stated that Reeves should avoid concentrated
exposure to extreme heat, noise, and vibrations due to her migraines. Dr. Stephen
Schwartz, who had performed a consultative RFC medical examination of Reeves
in March 2017, noted that Reeves complained of back pain starting in 2014, neck
pain starting in 2000, liver disease, heart disease, degenerative disc disease in her
back and neck, arthritis, migraines, and severe back pain. Based on a physical
evaluation, neuropsychological examination, and range-of-motion report, Dr.
Schwartz opined that Reeves could: lift and/or carry 21 to 25 pounds frequently; sit
for 6 hours out of an 8-hour workday; stand and/or walk for 3 hours out of an 8-
hour workday; use her hands and feet without limitation; climb stairs, ramps,
ladders, and scaffolds frequently; and balance, stoop, kneel, crouch, and crawl
continuously. Dr. Schwartz also opined that Reeves could frequently tolerate
exposure to unprotected heights, extreme cold and heat, vibrations, and moderate
noise, and was not prevented from engaging in normal daily activities.
The ALJ denied Reeves’s claim, concluding that she had not been under a
disability since she filed her application within the meaning of the Social Security
Act and for the purposes of obtaining DIB. The ALJ applied the five-step analysis
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used to determine if an individual is disabled. At step two, the ALJ found that
Reeves had three substantial impairments: cervical/lumbar degenerative disc
disease; a triple discectomy with fusion in 2007 and cervical reinjury in April
2014; and arthritis. At step three, the ALJ found that Reeves’s degenerative disc
disease did not constitute an impairment or combination of impairments that met or
was medically equal to the severity of one of the impairments listed in the 20
C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”). The ALJ found that
Reeves was capable of performing past relevant work as a cashier, sales attendant,
and customer-service representative, as the VE had testified that those jobs were at
the light exertional level and involved only unskilled or semi-skilled work.
Additionally, the ALJ noted that jobs existed in the national economy in significant
numbers that Reeves could perform given her RFC, including informational clerk,
mail clerk, parking lot attendant, and office helper. Given the availability of work
that Reeves could perform, the ALJ concluded found that she was not disabled for
the purposes of the Social Security Act.
The Appeals Council denied Reeves’s request for review. Reeves then filed
a complaint in the district court seeking review of the Commissioner’s denial of
her application for DIB. A magistrate judge issued a report and recommendation
(“R&R”) recommending that the district court affirm the Commissioner’s decision.
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The district court reviewed the record de novo, adopted the R&R over Reeves’s
objections, and affirmed the Commissioner’s decision.
II. DISCUSSION
A. Whether the ALJ Committed Reversible Procedural Errors
As an initial matter, Reeves questions our jurisdiction to review her claims
because the total amount of disability benefits due to her exceeds our “limitations,”
and the record upon which we would issue an opinion is “purposely incomplete
and illegally obtained.” Reeves then argues that the ALJ committed reversible
error by failing to bring to the hearing any of the evidence that she previously had
submitted. She also argues that the ALJ violated Article III of the U.S.
Constitution by stopping the initial hearing and requiring her to get examined by a
doctor and an unnamed chiropractor before the hearing was resumed, even though
she had two letters from the Social Security Administration (“SSA”) that indicated
that no such examination was necessary. In addition, she contends that the ALJ
ignored the medical evidence that she had submitted, relying instead on evidence
that Reeves had informed him was “fruit of the poisonous tree, illegally obtained
with a disregard to Social Security’s own laws.” She further argues that the SSA’s
medical examiners were either provided incomplete medical records or ignored
those records, in violation of her right to equal protection. Finally, she contends
that the ALJ and VE made biased statements during the hearing that do not appear
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in the certified transcript. Specifically, she asserts that, in response to her question
about whether someone with her medical impairments could perform the duties of
the jobs offered by the VE, the VE responded, “If it is YOU! Yes!” after which the
ALJ rephrased the question by asking if the same would hold true for “a NORMAL
person.”
Following the issuance of the Commissioner’s final decision, “irrespective
of the amount in controversy,” a party may seek review of that decision in the
district court.
42 U.S.C. § 405(g). We, in turn, have jurisdiction over all final
decisions of the district court.
28 U.S.C. § 1291. We will not consider on appeal
an issue that a party has waived by not first raising that issue before the district
court. Chandler v. Sec’y of Fla. Dep’t of Transp.,
695 F.3d 1194, 1198 n.2 (11th
Cir. 2012). Where a party was informed of the time period for objecting to a
magistrate judge’s R&R and the consequences for failing to do so, we will review
only for plain error the district court’s order, to the extent that it is based on the
R&R’s unobjected-to factual and legal conclusions. 11th Cir. R. 3-1.
We review the Commissioner’s conclusions of law and the district court’s
judgment de novo. Parks ex rel. D.P. v. Comm’r, Soc. Sec. Admin.,
783 F.3d 847,
850 (11th Cir. 2015). The Commissioner’s factual findings are conclusive if they
are supported by substantial evidence, which is relevant evidence that a reasonable
person would accept as adequate to support a conclusion.
Id.
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Generally, an applicant for DIB bears the burden of proving that they are
disabled and must submit evidence in support of her claim.
20 C.F.R.
§ 416.912(a)(1). The SSA may ask an applicant to attend one or more consultative
examinations from a qualified medical examiner, though such a request generally
will not be made until the SSA has made every reasonable effort to obtain evidence
from the applicant’s medical sources.
Id. § 416.912(b)(2). A consultative
examination may be requested to try to resolve inconsistencies in the evidence, or
when the evidence as a whole is insufficient to support a determination on an
applicant’s claim. Id. § 416.919a(b). The SSA will provide the medical examiner
any necessary background information about the applicant’s condition. Id.
§ 416.917. A medical examiner is “qualified” if he or she is licensed in the state
where the examination will take place and has the experience and training to
perform the requested examinations or tests. Id. § 416.919g(b).
The ALJ must base his decision on the preponderance of the evidence
offered at the hearing or otherwise included in the record. Id. § 416.1453. The
ALJ will consider all evidence in the record when making a disability
determination. Id. § 416.920. All hearings are recorded, and a typed copy of that
recording will be prepared if, among other things, the applicant seeks review of her
case in the district court. Id. § 416.1451(a)(2). The official record contains all of
the evidence upon which the ALJ relied in making a determination, including
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“applications, written statements, certificates, reports, affidavits, medical records,
and other documents that were used in making the decision under review and any
additional evidence or written statements that the administrative law judge admits
into the record.” Id. § 416.1451(b).
A presumption exists that judicial and quasi-judicial officers such as ALJs
are unbiased. Schweiker v. McClure,
456 U.S. 188, 195,
102 S. Ct. 1665, 1670
(1982). That presumption can be rebutted by showing a conflict of interest or
some other specific reason warranting the ALJ’s disqualification.
Id.,
102 S. Ct. at
1670. The party asserting a disqualifying interest bears the burden of establishing
its existence.
Id. at 196,
102 S. Ct. at 1670. Bias is shown where an objective,
fully-informed lay person would have significant doubt about a judge’s
impartiality. In re Walker,
532 F.3d 1304, 1310 (11th Cir. 2008). Generally, bias
sufficient to disqualify a judge must stem from an extrajudicial source, except
where a judge’s remarks in a judicial context show such pervasive bias and
prejudice that it constitutes bias against a party.
Id. at 1310-11.
As an initial matter, we have jurisdiction to review Reeves’s claims because
she was permitted to seek review of the denial of her claim for DIB in the district
court “irrespective of the amount in controversy,” and we have jurisdiction over
the district court’s affirmance of the Commissioner’s decision.
42 U.S.C. §
405(g);
28 U.S.C. § 1291. As for her claim that we lack jurisdiction over her case
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because any decision would be “poisoned” to the extent it would be based on a
“purposefully incomplete and illegally obtained” record, she conflates the issue of
whether we have the authority to decide a given case with the issue of whether that
decision would be factually and legally correct based on the record before us.
Because our ability to review her case is not dependent on the accuracy of the
record on appeal, but rather, the statutorily invested authority to review final orders
of the Commissioner following review by the district court, we have jurisdiction
over Reeves’s appeal.
The record does not support Reeves’s claim that the ALJ was biased or
prejudiced against her. First, the hearing transcript contained in the official record
does not contain the alleged biased statements that Reeves asserts the ALJ and VE
made, and the ALJ is presumed to have acted honestly and with integrity in
compiling the record. See McClure,
456 U.S. at 195,
102 S. Ct. at 1670. Second,
there is no evidence supporting her claim that those comments were purposefully
withheld from inclusion in the official record, nor has she demonstrated a conflict
of interest or extra-judicial source of bias or prejudice that would cause an ordinary
person to question the ALJ’s impartiality in compiling the record. Third, the
statements allegedly made by the ALJ and VE during the hearing would not
warrant remand because, even if they did make those statements, they do not
demonstrate bias or prejudice that call into question the ALJ’s impartiality. See In
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re Walker,
532 F.3d at 1310. Finally, the alleged statements are not so extreme as
to suggest that the ALJ or VE harbored any malice or ill-will towards Reeves that
might indicate that they were biased against her.
While Reeves argues that the ALJ committed reversible error by failing to
bring to the initial February 2017 hearing any of the evidence that she previously
had submitted, this argument is without merit. Reeves made this argument below
in her initial filings with the district court; however, she failed to object to the
R&R’s conclusion that she had not shown that she was prejudiced by the ALJ’s
alleged failure to come to her initial hearing with all of the record evidence, and
she was informed of the time frame for objecting to the R&R’s factual and legal
conclusions and the consequences for failing to do so. Thus, we review Reeves’s
claim only for plain error. 11th Cir. R. 3-1. The record does not show that the ALJ
erred, much less plainly so, by arriving at the initial hearing unprepared. The
record does not contain a transcript of a February 2017 hearing; thus, there is no
evidentiary support for Reeves’s claim that the ALJ was unprepared for that
hearing. While the regulations governing the issuance of the ALJ’s decision
require that he consider all of the record evidence in making that determination,
those regulations are silent on the issue of whether the ALJ must have the record at
the hearing that precedes that determination. See
20 C.F.R. § 416.920. The record
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also indicates that a full hearing occurred in May 2017, and the record shows that
all of the evidence submitted prior to that hearing was added into the record.
Similarly without merit is Reeves’s claim that the ALJ violated Article III by
requiring her to undergo consultative examinations by Dr. Schwartz and an
unnamed chiropractor. Reeves has waived that claim by failing to first present it to
the district court in any of her filings below, even when those filings are liberally
construed. See Chandler, 695 F.3d at 1198 n.2; Timson v. Sampson,
518 F.3d 870,
874 (11th Cir. 2008) (noting that we liberally construe pro se filings). Further, the
SSA is an executive-branch agency; thus, its actions, proper or not, cannot violate
Article III. See U.S. Const. art. III, § 1 (vesting the judicial power of the United
States in the U.S. Supreme Court and inferior courts established by Congress);
42
U.S.C. § 901(a) (establishing the SSA as an independent agency within the
executive branch). Even if Reeves’s claim is construed as asserting that the ALJ
erroneously referred her to Dr. Schwartz and a chiropractor for consultative
examinations, the ALJ was authorized to make those referrals,
20 C.F.R. §
416.912(b)(2). Also, nothing in the record suggests, nor has Reeves asserted, that
Dr. Schwartz and the unnamed chiropractor were unqualified within the meaning
of the regulations governing consultative examination.
Id. § 416.919g(b). Lastly,
although Reeves claims to have submitted two letters indicating that the
consultative medical examinations were unnecessary, she has not indicated the
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source or contents of those letters, nor has she shown that those letters would have
precluded the ordering of the examinations where the ALJ felt that they were
necessary to make a determination on her DIB claim. Id. § 416.919a(b).
The ALJ also did not err by failing to provide Dr. Schwartz with Reeves’s
complete medical records because the ALJ was only required to provide Dr.
Schwartz with the background information necessary to conduct the RFC exam for
which he was consulted. The record shows that Dr. Schwartz was tasked with
performing an RFC examination, which focuses on an applicant’s current physical
capabilities, rather than an applicant’s history of impairments. Because Dr.
Schwartz did not require Reeves’s full medical history to establish her RFC at the
time of the examination, the ALJ was not required to provide Dr. Schwartz with
her complete medical records.
20 C.F.R. § 416.917. To the extent that Reeves’s
claim is construed as asserting that the ALJ failed to provide Dr. Baltazar with her
medical records, that claim is not supported by the record, since Dr. Baltazar’s
May 2015 RFC assessment references multiple pieces of medical evidence in the
record.
Finally, Reeves has waived her claim that the ALJ improperly relied on
evidence that was “fruit of the poisonous tree, illegally obtained with a disregard to
Social Security’s own laws,” rather than the evidence that she submitted. Reeves
has not indicated what that allegedly improper evidence was, she has failed to
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indicate what laws the ALJ violated in relying on that evidence, and her single
reference to that “poisonous” evidence is insufficient to preserve it for review. See
Timson,
518 F.3d at 874; Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681
(11th Cir. 2014) (recognizing that a party can abandon a claim or issue when they
only make “passing references to it” in the “statement of the case”’ or “summary
of the argument”). 1
B. Whether the ALJ Failed to Consider All of Reeves’s Physical Impairments
Reeves also argues that the ALJ disregarded most of her physical conditions
when he did not find that she suffered from multiple impairments within the
meaning of
20 C.F.R. § 404.1523. An individual claiming Social Security
disability benefits must prove that she is disabled. See Moore v. Barnhart,
405
F.3d 1208, 1211 (11th Cir. 2005). The ALJ uses a five-step, sequential evaluation
process to determine whether a claimant is disabled. Winschel v. Comm’r of Soc.
Sec.,
631 F.3d 1176, 1178 (11th Cir. 2011). This process includes an analysis of
whether the claimant: (1) is unable to engage in substantial gainful activity; (2) has
a severe and medically-determinable impairment; (3) has an impairment, or
combination thereof, that meets or equals a Listing, and meets the duration
1
We note that Reeves also makes cursory and unsupported claims that the district court failed to
grant her motion for an expedited judgment, improperly disregarded the medical opinion that had
been submitted to the court, and relied on an illegal and incomplete record. However, because
she has failed to support these assertions with citations to legal authority or evidence in the
record, her passing statements to those issues amounts to a waiver of those claims. See Sapuppo,
739 F.3d at 682; Timson,
518 F.3d at 874.
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requirement; (4) can perform past relevant work, in light of his RFC; and (5) can
make an adjustment to other work, in light of his RFC, age, education, and work
experience. See id.;
20 C.F.R. § 404.1520(a)(4). If an ALJ finds a claimant
disabled or not disabled at any given step, the ALJ does not proceed to the next
step.
20 C.F.R. § 404.1520(a)(4).
At step three, the ALJ must determine whether any of the applicant’s
impairments meets or equals an impairment contained in the Listings, or, if none of
the applicant’s individual impairments constitutes a listed impairment, whether the
combination of the applicant’s impairments is medically equal to a listed
impairment. Wilson v. Barnhart,
284 F.3d 1219, 1224 (11th Cir. 2002). The
ALJ’s statement that an applicant’s impairments or combination thereof do not
meet or equal a listed impairment constitutes evidence that the ALJ considered the
combined effect of the applicant’s impairments.
Id.
Here, the ALJ did not fail to consider whether Reeves’s impairments met or
equaled a listed impairment because the ALJ’s decision shows that he considered
the combined effect of her impairments. First, the ALJ’s decision noted that he
was required to consider whether any one of her severe impairments or
combination thereof met or medically equaled one of the impairments contained in
the Listings, which is evidence that he considered the cumulative effect of
Reeves’s impairments.
Id. Further, in assessing Reeves’s RFC, the ALJ indicated
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that he had “considered all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence and other
evidence,” which shows that he considered all of Reeves’s impairments relative to
the medical record. Finally, Reeves points to no evidence that suggests that the
ALJ failed to fulfill his obligations at step three.
AFFIRMED.
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