           Case: 17-11496   Date Filed: 05/16/2018   Page: 1 of 7


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-11496
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 5:15-cv-00534-WTH-PRL



DEBRA E. MILAM,

                                                     Plaintiff - Appellant,

                                  versus


COMMISSIONER OF SOCIAL SECURITY,

                                                     Defendant - Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                             (May 16, 2018)

Before JILL PRYOR, NEWSOM and ANDERSON, Circuit Judges.

PER CURIAM:
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      Debra Milam appeals the district court’s order affirming the Commissioner

of Social Security’s decision denying her applications for disability insurance

benefits (“DIB”) and supplemental security income (“SSI”). Milam contends that

the administrative law judge (“ALJ”) was precluded from finding an onset date

that was later than the date it had found previously, and that the ALJ’s doing so

violated her procedural due process rights. After careful consideration, we

disagree and affirm the district court’s order in favor of the Commissioner.

                                       I.

      In June 2006, Milam filed applications for DIB and SSI, alleging a disability

that had commenced on February 1, 2006. Her applications were denied. Milam

requested a hearing before an ALJ. Following the hearing, the ALJ found that

Milam was not disabled. Milam sought review by the Appeals Council, and the

Appeals Council denied her request. Milam filed a complaint against the

Commissioner in federal district court. The Commissioner moved to remand the

case to the ALJ for further proceedings because the recording of Milam’s

administrative hearing was inaudible. The district court granted the motion.

      The ALJ held a second hearing in September 2011, after which it again

found that Milam was not disabled. Milam sought review by the Appeals Council.

This time, the Appeals Council remanded Milam’s case to the ALJ for further

consideration of the evidence and another hearing. Following a third hearing,


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which was held in January 2013, an ALJ concluded that Milam was disabled

beginning on July 2, 2010.

       Milam filed a complaint against the Commissioner in federal district court,

arguing that the ALJ erred in determining that her onset date was July 2, 2010,

rather than an earlier date. 1 A magistrate determined that the ALJ had failed to

discuss relevant medical evidence pre-dating July 2, 2010. Accordingly, the

magistrate recommended remanding the case to the ALJ with instructions to

“[r]eevaluate the evidence of record, especially evidence pre-dating July 2, 2010,

and reconsider whether [Milam] became disabled on that date or on some other

date.” Doc. 18-22 at 46.2 Milam did not object. The district court adopted the

magistrate’s recommendation and remanded the case for administrative

proceedings consistent with the magistrate’s recommendation. Based on the

district court’s order, the Appeals Council vacated the previous decision of the

Commissioner and remanded to an ALJ for further proceedings “consistent with

the order of the court.” Id. at 49.

       A fourth hearing was held. Following the hearing, the ALJ determined that

Milam was disabled beginning on March 26, 2014—nearly four years later than the

onset date the ALJ had found previously. The Appeals Council declined to review


       1
         Milam did not seek review by the Appeals Council, but the Commissioner reopened the
case pursuant to an unopposed motion.
       2
           Citations to “Doc. #” refer to the numbered entries on the district court docket.
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the ALJ’s determination. Milam filed a complaint in federal district court. The

magistrate determined that the ALJ had committed no error. The district court

adopted the magistrate’s recommendation over Milam’s objections. This is

Milam’s appeal.

                                         II.

      Whether res judicata barred the ALJ’s onset date finding and whether

Milam’s procedural due process rights were violated are questions of law we

review de novo. See Crawford & Co. v. Apfel, 235 F.3d 1298, 1302 (11th Cir.

2000). As we explain below, neither of Milam’s arguments has merit.

      Milam argues that res judicata barred the ALJ from finding that her onset

date was March 26, 2014, because the ALJ had previously determined Milam’s

onset date was July 2, 2010. We disagree. Res judicata applies to an agency order

when the agency has “made a previous determination or decision . . . about [a

claimant’s] rights on the same facts and on the same issue or issues, and [that]

previous determination or decision has become final by either administrative or

judicial action.” 20 C.F.R. § 404.957(c)(1) (2017). An order that has been

vacated, however, does not have preclusive effect. Cf. Quarles v. Sager, 687 F.2d

344, 346 (11th Cir. 1982) (“The judgment of the district court was vacated; thus,

no final judgment on the merits exists.”).




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      Here, res judicata does not apply because the Appeals Council vacated the

ALJ’s order containing the July 2, 2010 onset date. And, contrary to Milam’s

argument, the district court did not direct the Appeals Council to remand the case

to the ALJ for a limited purpose. Further, when the Appeals Council vacated the

ALJ’s order, it did not preserve any portion of the ALJ’s findings. The ALJ,

therefore, was not precluded from reconsidering Milam’s onset date.

      Milam also argues that due process and fundamental fairness prevented the

ALJ from finding an onset date later than it had found previously. Again, we

disagree. In Kennedy v. Bowen, we held that where a claimant seeks review of a

limited issue, the Appeals Council may not expand the scope of review beyond that

issue without providing the claimant notice. 814 F.2d 1523, 1524-25 (11th Cir.

1987). In that case, the ALJ granted Kennedy benefits as of a particular onset date.

Id. at 1525. “Content with the finding of disability but dissatisfied as to its date of

onset,” Kennedy sought the review of the Appeals Council to show that his

disability had begun on an earlier date. Id. Without providing notice to Kennedy,

the Appeals Council sua sponte decided to revisit whether Kennedy was disabled.

The Appeals Council then remanded the case to an ALJ, who denied benefits. We

concluded that “the [Social Security] regulations and . . . the dictates of due

process and fundamental fairness” required notice to the claimant before the




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Appeals Council could “expand the scope of review and upset a claimant’s

partially favorable decision by raising an issue that was not appealed.” Id.

      Kennedy does not help Milam, however, because the regulation that we held

required notice in that case, 20 C.F.R. § 404.973, does not apply here. Cases in

which the Appeals Council remands a case to an ALJ for a de novo hearing in

compliance with a federal court order—like this one—are governed by 20 C.F.R.

§ 404.983. That regulation provides:

      When a Federal court remands a case to the Commissioner for further
      consideration, the Appeals Council, acting on behalf of the
      Commissioner . . . may remand the case to an [ALJ]. . . . If the case is
      remanded by the Appeals Council, [a]ny issues relating to [the] claim
      may be considered by the [ALJ] whether or not they were raised in the
      administrative proceedings.

20 C.F.R. § 404.983 (2015). This provision does not contain the notice

requirement we interpreted in Kennedy. See 814 F.2d at 1527-28.

      To the extent Milam argues that procedural due process otherwise required

the Appeals Council to give her notice that onset dates prior to July 2, 2010 would

be considered, we disagree. Milam had notice that her onset date would be

considered because she specifically filed a complaint in federal court requesting

review of that date. And, contrary to Milam’s argument, the district court did not

limit the scope of the Commissioner’s review on remand. Although it instructed

the ALJ to “[r]eevaluate the evidence of record, especially evidence pre-dating

July 2, 2010,” it also stated that the Commissioner should “reconsider whether
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[Milam] became disabled on that date or on some other date.” Doc. 18-22 at 46.

Having specifically sought review of her onset date, Milam cannot now argue that

she lacked notice such review would take place. We thus reject Milam’s argument

that her procedural due process rights were violated.3


                                            III.

       For the reasons set forth above, we affirm the district court’s order and the

Commissioner’s decision.

       AFFIRMED.




       3
          To the extent Milam also challenges whether the March 26, 2014 date was supported by
substantial evidence, that issue is waived because Milam fails to address it adequately in her
brief. See N.L.R.B. v. McClain of Ga., Inc., 138 F.3d 1418, 1422 (11th Cir.1998) (“Issues raised
in a perfunctory manner, without supporting arguments and citation to authorities, are generally
deemed to be waived.”).
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