USCA11 Case: 20-14026 Date Filed: 07/27/2021 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-14026
Non-Argument Calendar
________________________
D.C. Docket No. 8:19-cv-00713-AEP
MARIA MENDEZ,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 27, 2021)
Before JILL PRYOR, LUCK and DUBINA, Circuit Judges.
PER CURIAM:
USCA11 Case: 20-14026 Date Filed: 07/27/2021 Page: 2 of 9
Appellant Maria Mendez appeals the district court’s affirmance of the
Commissioner of Social Security Administration’s (“SSA”) decision denying her
claim for a period of disability, disability insurance benefits (“DIB”), and
supplemental security income (“SSI”), pursuant to
42 U.S.C. §§ 405(g) and
1383(c)(3). Mendez argues that the administrative law judge (“ALJ”) violated the
law-of-the-case doctrine and the mandate rule in his 2017 decision by
reconsidering a prior finding of her residual functional capacity (“RFC”) after
remand from the district court in Mendez’s appeal from the denial of her claim by
another ALJ in 2013. She asserts that the remand order implicitly adopted the
findings from the prior 2013 decision and did not allow the ALJ to reconsider the
RFC finding. Based on our review of the record, and after reading the parties’
briefs, we affirm the district court’s order affirming the Commissioner’s ruling.
I.
In August 2011, Mendez applied for a period of disability, DIB, and SSI,
alleging that her disability began on December 31, 2007. After conducting a
hearing, the ALJ determined that Mendez was not disabled (“2013 decision”). The
Appeals Council denied review of the ALJ’s 2013 decision. In 2015, Mendez filed
another application for DIB and SSI, again alleging that her disability began on
December 31, 2007.
2
USCA11 Case: 20-14026 Date Filed: 07/27/2021 Page: 3 of 9
Mendez filed suit in federal district court, and in July 2016, a magistrate
judge reversed and remanded the Commissioner’s decision (the “remand order”).
The magistrate judge determined that the ALJ failed to account for all of Mendez’s
impairments when posing the hypothetical to the vocational expert (“VE”), which
required remand because the hypothetical was incomplete. In November 2016, the
Appeals Council issued an order vacating the final decision of the Commissioner
and remanding the case to the ALJ. The Appeals Council directed the ALJ to
consolidate Mendez’s 2011 claim and her 2015 claim and to issue a new decision
on the consolidated claims. It also directed the ALJ to offer Mendez the
opportunity for a hearing, to take any further action needed to complete the
administrative record, and to issue a new decision.
After a hearing, the ALJ issued a decision in September 2017 in which he
denied relief because he found that Mendez was not disabled. In relevant part, the
ALJ found that Mendez had a RFC that enabled her to perform the full range of
medium work. The ALJ found that Mendez was able to perform past relevant
work as a harvest worker, so she was not disabled and was ineligible for benefits.
The Appeals Council declined to review the 2017 decision. Mendez filed the
present complaint in federal court seeking review of the Commissioner’s decision
affirming the ALJ’s 2017 decision, specifically asserting that the ALJ violated the
law-of-the-case doctrine and the mandate rule by reconsidering the RFC finding.
3
USCA11 Case: 20-14026 Date Filed: 07/27/2021 Page: 4 of 9
The magistrate judge affirmed the Commissioner’s final decision, finding
particularly that in the previous appeal, the only issue presented to the district court
was whether the hypothetical to the VE was sufficient. As such, the magistrate
judge found that the remand order did not explicitly or implicitly make any
findings regarding Mendez’s RFC, so the ALJ did not violate the law of the case or
the mandate rule in the 2017 decision. In addition, the magistrate judge found that
the Appeals Council had vacated the 2013 decision and that the ALJ acted
consistently with the order from the Appeals Council. Finally, the magistrate
judge found that, to the extent that Mendez challenged the basis for the RFC
finding, substantial evidence supported the 2017 decision. Mendez timely
appealed.
II.
We review de novo the legal principles upon which the ALJ’s decision is
based, but the ALJ’s factual findings are conclusive if supported by substantial
evidence. Washington v. Comm’r of Soc. Sec.,
906 F.3d 1353, 1358 (11th Cir.
2018). We also review de novo whether the ALJ has complied with a remand
order, see Sullivan v. Hudson,
490 U.S. 877, 885-86,
109 S. Ct. 2248, 2254-55
(1989), the extent to which the law-of-the-case doctrine applies, Transamerica
Leasing, Inc. v. Inst. of London Underwriters,
430 F.3d 1326, 1331 (11th Cir.
2005), and whether a mandate has been complied with, Cambridge Univ. Press v.
4
USCA11 Case: 20-14026 Date Filed: 07/27/2021 Page: 5 of 9
Albert,
906 F.3d 1290, 1298 (11th Cir. 2018). We have applied the harmless error
standard to Social Security appeals. See Diorio v. Heckler,
721 F.2d 726, 728
(11th Cir. 1983).
Eligibility for DIB and SSI requires that the claimant be disabled.
42 U.S.C.
§§ 423(a)(1)(E), 1382(a)(1). A claimant is disabled if she is unable to engage in
substantial gainful activity by reason of a medically determinable impairment that
can be expected to result in death or which has lasted or can be expected to last for
a continuous period of at least 12 months.
42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). 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 requirement; (4) can
perform past relevant work, in light of her RFC; and (5) can make an adjustment to
other work, in light of her RFC, age, education, and work experience. See id.;
20 C.F.R. § 404.1520(a)(4).
At step four of the sequential evaluation, the ALJ assesses the applicant’s
RFC and past relevant work to determine whether the applicant can return to her
former work.
20 C.F.R. § 404.1520(a)(4)(iv). An RFC determination is an
5
USCA11 Case: 20-14026 Date Filed: 07/27/2021 Page: 6 of 9
assessment, based on all the relevant evidence, of a claimant’s remaining ability to
do work despite her impairments. Lewis v. Callahan,
125 F.3d 1436, 1440 (11th
Cir. 1997). This includes considering a claimant’s medically determinable
impairments, regardless of whether an impairment was found to be non-severe at
an earlier step.
20 C.F.R. § 404.1545(a)(1), (2). The Commissioner has a limited
burden at step five to show that a significant number of jobs exist that a claimant
can perform.
Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The Commissioner can
utilize the testimony of a VE to meet this burden of showing that the claimant can
perform other jobs. Id. § 416.966(e).
Following a federal court remand, the ALJ may consider any issues relating
to the claim, regardless of whether they were raised in earlier administrative
proceedings.
20 C.F.R. §§ 404.983, 416.1483. An ALJ may take any additional
action that is “not inconsistent” with the Appeals Council’s order implementing the
district court’s remand order. See
id. §§ 404.977(b), 416.1477(b). We have
determined that different ALJs may weigh the same evidence differently, and
“there is no inconsistency in finding that two successive ALJ decisions are
supported by substantial evidence even when those decisions reach opposing
conclusions.” Hunter v. Soc. Sec. Admin., Comm’r,
808 F.3d 818, 822 (11th Cir.
2015).
6
USCA11 Case: 20-14026 Date Filed: 07/27/2021 Page: 7 of 9
Under the law-of-the-case doctrine, an appellate court’s findings of fact and
conclusions of law are generally binding in all subsequent proceedings in the same
case in the trial court or on a later appeal. This That & the Other Gift & Tobacco,
Inc. v. Cobb Cnty.,
439 F.3d 1275, 1283 (11th Cir. 2006). The mandate rule,
which is a specific application of the law of the case, binds a lower court to execute
the mandate of the higher court without examination or variance. Cambridge
Univ. Press, 906 F.3d at 1299. A court “may not alter, amend, or examine the
mandate, or give any further relief or review, but must enter an order in strict
compliance with the mandate.” Piambino v. Bailey,
757 F.2d 1112, 1119 (11th
Cir. 1985). The law-of-the-case doctrine and the mandate rule do not extend to
issues that the appellate court did not explicitly or implicitly address.
Id. at 1120.
III.
Assuming without deciding that the law-of-the-case doctrine and the
mandate rule apply in the SSA context, see Maxwell v. Comm’r of Soc. Sec., 778 F.
App’x 800, 802 n.1 (11th Cir. 2019) (assuming that the doctrines apply but
determining that the ALJ did not exceed the scope of the remand order by
reconsidering a claimant’s manipulation abilities because the remand order did not
make an express or implied finding regarding those abilities), we conclude that the
ALJ did not err because there was no law of the case regarding Mendez’s RFC.
The record demonstrates that in her previous appeal, Mendez argued only that the
7
USCA11 Case: 20-14026 Date Filed: 07/27/2021 Page: 8 of 9
ALJ provided an incomplete hypothetical to the VE, which is part of step five, so
the remand order did not implicitly or explicitly adopt the prior RFC findings,
which is part of step four. Additionally, because the 2013 decision was vacated by
the Appeals Council, it no longer has any legal effect. See United States v. Sigma
Int’l, Inc.,
300 F.3d 1278, 1280 (11th Cir. 2002) (stating that vacated decisions
“are officially gone” and “have no legal effect whatever”). Thus, the previous
RFC finding did not bind the ALJ after remand.
In issuing the 2017 decision, the ALJ complied with the relevant regulations
regarding remand because the ALJ did not take any actions inconsistent with the
remand order or the Appeals Council’s order. The Appeals Council ordered the
ALJ to allow Mendez to have another hearing and submit new evidence, which the
ALJ did. Neither the remand order nor the Appeals Council’s order prohibited the
ALJ from revisiting the prior findings, so the fact that the ALJ did so is not
inconsistent with those orders.
Finally, even if the ALJ mischaracterized the remand order when he stated
that the remand order found that the 2013 decision lacked clarity as to Mendez’s
ability to stand, any error was harmless. In the 2017 decision, the ALJ did not state
that the remand order required him to reconsider Mendez’s ability to stand, and
there is no indication that this mischaracterization affected the RFC finding
because the ALJ cited record evidence in explaining his finding that Mendez had
8
USCA11 Case: 20-14026 Date Filed: 07/27/2021 Page: 9 of 9
no standing limitations. Accordingly, based on the aforementioned reasons, we
affirm the district court’s order affirming the Commissioner’s decision denying
Mendez’s claim for a period of disability, DIB, and SSI.
AFFIRMED.1
1
Mendez did not raise before the district court whether substantial evidence supports the
Commissioner’s decision, and on appeal, she makes at most only a passing reference to
substantial evidence. Thus, she has abandoned that claim. See Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1161 (11th Cir. 2004) (explaining that we need not address an issue the claimant
failed to raise in the district court); Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681
(11th Cir. 2014) (explaining that an appellant abandons an issue that she fails to raise in her
appellate brief, which can occur when she mentions the argument only through passing
reference).
9
