Cooley Ex Rel. Cooley v. Commissioner of Social Security

Case: 16-11238 Date Filed: 12/16/2016 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11238
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-00243-MP-GRJ
SHEILA COOLEY,
o.b.o. Royce Cooley, Deceased,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Acting Commissioner of the Social Security Administration,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(December 16, 2016)
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Before MARCUS, WILLIAM PRYOR and FAY, Circuit Judges.
PER CURIAM:
Sheila Cooley, on behalf of her deceased husband, Royce Cooley, appeals an
order that affirmed the denial of Royce’s application for disability insurance
benefits. See 42 U.S.C. § 405(g). Cooley argues that Royce qualified as
intellectually disabled under Listing 12.05. See 20 C.F.R. pt. 404, app. 1, § 12.05.
The Commissioner of Social Security argues that Cooley waived her argument by
failing to object to the magistrate judge’s report and recommendation. We affirm.
In July 2010, an administrative law judge denied Royce’s third application
for benefits. Although Royce died before the Appeals Council denied his request
for review, his widow, Cooley, filed a complaint against the agency. The parties
consented to have the action decided by a magistrate judge, and Cooley succeeded
in having the decision of the agency reversed and the case remanded to evaluate
whether Royce qualified for benefits under Listing 12.05.
On remand, the administrative law judge again denied Royce benefits. The
administrative law judge ruled that Royce did not qualify as intellectually disabled
because he did not have a listed impairment nor any “deficits in adaptive
functioning,” see id., and, in the alternative, because he did not have “a physical or
other mental impairment imposing an additional and significant work-related
limitation of function” in addition to his verbal intelligence quotient test score of
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69, see id. § 12.05(C). The administrative law judge found that Royce had
performed semi-skilled work for about two decades without accommodation; he
was able to follow directions; and he continued to cook, shop, ride his bike, drive,
wash clothes, maintain his personal hygiene, and support himself by working odd
jobs. Cooley did not request review by the Appeals Council and filed another
complaint against the agency.
The district court affirmed the ruling of the agency based on the magistrate
judge’s recommendation. The magistrate judge determined that Royce had failed to
qualify as intellectually disabled under Listing 12.05. That Royce did not have
deficits in adaptive functioning, the magistrate judge determined, was supported by
substantial evidence of his employment history, his testimony regarding his
ongoing personal activities, and the reports of examining physician Lance Chodosh
that Royce functioned independently and of psychologist Carmen Tozzo-Julian
that Royce was a good candidate for vocational counseling. The magistrate judge
rejected the argument that Royce was entitled to a conclusive presumption of
disability because he did not have a listed impairment like the applicant in Ambers
v. Heckler, 736 F.2d 1467, 1470 (11th Cir. 1984), and because there was
substantial evidence that he did not have deficits in adaptive functioning. And the
magistrate judge stated that Cooley “had not challenged” the “ALJ’s alternate
[ruling], that even if [Royce] did exhibit deficits in adaptive functioning, [he] did
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not meet the ‘paragraph C’ criteria of listing 12.05 because [he] did not have a
physical or other mental impairment imposing an additional and significant work-
related limitation of function.”
Cooley argues on appeal that Royce qualified for disability benefits under
paragraph C of Listing 12.05, but she has waived that argument. The magistrate
judge warned the parties that, unless they filed “[o]bjections to the[] proposed
findings and recommendations . . . within fourteen (14) days after being served a
copy,” they “waive[d] the right to challenge on appeal the district court’s order
based on the unobjected-to factual and legal conclusions.” Cooley disregarded that
warning. Because Cooley “fail[ed] to [file an] object[ion,] . . . [she] waive[d] the
right to challenge on appeal the district court’s order” that adopted the report and
recommendation. See 11th Cir. R. 3-1; see also Advanced Estimating Sys., Inc. v.
Riney, 130 F.3d 996, 998 (11th Cir. 1997) (“attorney error based on a
misunderstanding of the law [is] an insufficient basis for excusing a failure to
comply with” a procedural rule). Cooley failed to object to the magistrate judge’s
determination that she “had not challenged” the ruling of the agency that Royce did
not satisfy the criteria in Listing 12.05(C) and that she had failed to request review
of that ruling by the Appeals Council. As a general rule, we do not consider
arguments that have not been fairly presented to a respective agency or to the
district court. See Kelley v. Apfel, 185 F.3d 1211, 1215 (11th Cir. 1999) (treating as
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waived a challenge to the administrative law judge’s reliance on the testimony of a
vocational expert that was “not raise[d] . . . before the administrative agency or the
district court”). We deem waived Cooley’s argument that her deceased husband
qualified for benefits under Listing 12.05(C).
We AFFIRM the denial of Cooley’s application for benefits.
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