Joeanne M. Thomas-Joseph v. Commissioner of Social Security

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11020
Non-Argument Calendar
____________________
JOEANNE M. THOMAS-JOSEPH,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:19-cv-00681-MRM
____________________
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2 Opinion of the Court 21-11020
Before JORDAN, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
JoeAnne Thomas-Joseph appeals the district court’s order af-
firming the Commissioner of Social Security’s denial of her appli-
cation for a period of disability and disability insurance benefits
(“DIB”). She argues that substantial evidence does not support the
disability onset date the Administrative Law Judge (“ALJ”) chose
and that she did not knowingly and intelligently waive her right to
counsel.
I.
We review the Commissioner’s conclusions of law and the
district court’s judgment de novo. See Washington v. Comm’r of
Soc. Sec., 906 F.3d 1353, 1358 (11th Cir. 2018). The Commis-
sioner’s factual findings are conclusive if they are supported by sub-
stantial evidence. See id. Substantial evidence is relevant evidence,
greater than a scintilla, that a reasonable person would accept as
adequate to support the agency’s conclusion. See id. Even where
the evidence preponderates against the Commissioner’s factual
findings, we must affirm if the decision is supported by substantial
evidence. See Parks ex rel. D.P. v. Comm’r, Soc. Sec. Admin., 783
F.3d 847, 850 (11th Cir. 2015). Under this standard of review, we
will not decide the facts anew, make credibility determinations, or
re-weigh the evidence. See Winschel v. Comm’r of Soc. Sec., 631
F.3d 1176, 1178 (11th Cir. 2011).
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21-11020 Opinion of the Court 3
Arguments not raised before the administrative agency or
the district court are forfeited and will not generally be considered
on appeal. See Kelley v. Apfel, 185 F.3d 1211, 1215 (11th Cir. 1999).
Forfeited issues will not be addressed absent extraordinary circum-
stances. See United States v. Campbell, 26 F.4th 860, 871-72 (11th
Cir. 2022) (en banc).
II.
A disability is defined as an “inability to engage in any sub-
stantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continu-
ous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The mere diagnosis of a medical impairment is insufficient, as it
does not reveal the extent to which the impairment limits the
claimant’s ability to work. See Moore v. Barnhart, 405 F.3d 1208,
1213 n.6 (11th Cir. 2005).
In making a claim for disability benefits, a claimant bears the
initial burden of establishing the existence of a disability, and, there-
fore, is responsible for producing evidence in support of her claim.
See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). A
claimant must have insured status based on employment earnings
in order to qualify for disability and DIB. See Moore v. Barnhart,
405 F.3d 1208, 1211 (11th Cir. 2005). A claimant who becomes dis-
abled after she loses insured status must be denied disability insur-
ance benefits despite her disability. See Demandre v. Califano, 591
F.2d 1088, 1090 (5th Cir.1979).
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4 Opinion of the Court 21-11020
According to Social Security Administration regulations,
when an ALJ evaluates claims of disability, there must be “objec-
tive medical evidence from an acceptable medical source” that
shows that the applicant has a medical impairment “which could
reasonably be expected to produce the pain or other symptoms al-
leged.” 20 C.F.R. § 404.1529(a). “Objective medical evidence is
evidence obtained from the application of medically acceptable
clinical and laboratory diagnostic techniques.” § 404.1529(c)(2).
SSA Guidance documents clarify that the agency “will not find an
individual disabled based on alleged symptoms alone.” Soc. Sec.
Ruling, SSR 16-3p; Titles II & XVI: Evaluation of Symptoms in Dis-
ability Claims, SSR 16-3P (S.S.A. Oct. 25, 2017).
To establish the disability onset date, an ALJ looks at the ear-
liest date the individual would be eligible for benefits and evaluates
whether the individual met the statutory definition of disability on
that date. See Soc. Sec. Ruling, SSR 18-01p; Titles II & XVI: Deter-
mining the Established Onset Date (EOD) in Disability Claims, SSR
18-01P (S.S.A. Oct. 2, 2018). A disability must be supported by spe-
cific medical evidence, and “[t]he Act also precludes [the SSA] from
finding that an individual is disabled unless he or she submits such
evidence.” Id.
Ms. Thomas-Joseph did not argue that substantial evidence
did not support the ALJ’s determination of her onset date before
either the appeals council or the district court. She has therefore
forfeited that claim. Even if Ms. Thomas-Joseph had not forfeited
the claim, substantial evidence supports the ALJ’s determination
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21-11020 Opinion of the Court 5
that she was not disabled prior to December 31, 2009. Simply
stated, there was no medical evidence that she suffered from dia-
betes, post-traumatic stress disorder, or schizophrenia prior to that
date.
III.
A Social Security claimant has a statutory right to be repre-
sented by counsel at a hearing before an ALJ, but that right may be
waived. See Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995).
The deprivation of the right to counsel at a Social Security hearing
is a statutory wrong, not a constitutional wrong. See Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). To demonstrate re-
versible error, the claimant must show that she was prejudiced by
the lack of counsel. See id. at 1423.
The Commissioner has an obligation to notify the claimant
of her right to counsel. See Holland v. Heckler, 764 F.2d 1560, 1563
(11th Cir. 1985). A claimant may waive her right to counsel pro-
vided the waiver is made knowingly and intelligently. See Brown,
44 F.3d at 935. In order for a waiver to be effective, the claimant
must be properly apprised of her options concerning representa-
tion. See id. The notice must inform the claimant of both the pos-
sibility of free counsel and the limitation on the recovery of attor-
ney’s fees. See Smith v. Schweiker, 677 F.2d 826, 829 (11th Cir.
1982).
Because a hearing before an ALJ in a Social Security matter
is not an adversary proceeding, the ALJ has a basic obligation to
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6 Opinion of the Court 21-11020
develop a full and fair record. See Ingram v. Comm’r of Soc. Sec.
Admin., 496 F.3d 1253, 1269 (11th Cir. 2007). This requires that the
ALJ develop the claimant’s medical history for at least the 12
months preceding the application unless there is a reason to believe
that development of an earlier period is necessary or unless the
claimant says that the disability began less than 12 months before
the claimant filed the application. See 20 C.F.R. § 416.912(b)(1).
This duty applies regardless of whether the claimant is represented.
See Brown, 44 F.3d at 934-35. When representation has not been
waived but the claimant represents herself pro se, the ALJ’s basic
obligation rises to a special duty to “scrupulously and conscien-
tiously probe into . . . the relevant facts.” Id. (quotation marks
omitted).
Should the ALJ fail to meet its duty to develop the record,
remand is only necessary if the record reveals evidentiary gaps
which result in unfairness or clear prejudice. See Id. at 935. Preju-
dice requires a showing that the ALJ did not have all of the relevant
evidence before it in the record or that the ALJ did not consider all
of the evidence in the record in reaching its decision. See Kelley v.
Heckler, 761 F.2d 1538, 1540 (11th Cir.1985).
Ms. Thomas-Joseph did not raise her right-to-counsel argu-
ment before the appeals council or the district court. She thus has
forfeited it.
Even if Ms. Thomas-Joseph had not forfeited the argument,
there is no reversible error. The ALJ advised her about the right to
counsel and she signed a waiver of that right. The ALJ also offered
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21-11020 Opinion of the Court 7
to delay the hearing if she wished to have counsel. Moreover, there
is no showing of prejudice. Ms. Thomas-Joseph has not shown that
there was any evidence that counsel would have obtained and pre-
sented on her behalf to establish an onset date prior to December
31, 2009, or that the ALJ should have obtained under his special
duty to develop the record if her waiver of her right to representa-
tion was proper.
IV.
We affirm the district court's judgment.
AFFIRMED.