           Case: 14-11191   Date Filed: 01/07/2015   Page: 1 of 13


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11191
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:09-cv-00249-MP-GRJ



PAMELA ATKINS,

                                                            Plaintiff-Appellant,

                                   versus

COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,

                                                          Defendant-Appellee.

                       ________________________

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

                             (January 7, 2015)

Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 14-11191    Date Filed: 01/07/2015   Page: 2 of 13


        Pamela Atkins appeals the district court’s order affirming the

Commissioner’s denial of her applications for disability insurance benefits and

supplemental security income. Unlike most claimants appealing to this Court,

Atkins does not raise the issue of whether substantial evidence supports the

Commissioner’s decision. Instead, she contends that the district court erred in

applying our decision in Kennedy v. Bowen, 814 F.2d 1523 (11th Cir. 1987), and

in determining that the doctrine of administrative res judicata does not apply in her

case.

                                           I.

        In May 2005, Atkins applied for disability insurance benefits and

supplemental security income. The Social Security Administration found that

Atkins was not disabled and denied her applications. Upon Atkins’ request, the

Social Security Administration reconsidered her applications but again denied

them. Atkins then requested and received a hearing before an administrative law

judge (ALJ). In August 2007, the ALJ issued a partially favorable decision

determining that Atkins was disabled from December 31, 2003 until June 2, 2006.

Atkins asked the Appeals Council to review the ALJ’s finding that her disability

ceased on June 2, 2006, and the Appeals Council denied that request in October

2009.




                                           2
               Case: 14-11191        Date Filed: 01/07/2015      Page: 3 of 13


       In December 2009, Atkins filed a complaint in the district court. She sought

review of the ALJ’s finding that her disability ceased on June 2, 2006, and

requested that any remand from the district court “specifically limit the ALJ’s

decision to the time period on appeal” (namely, the time period beginning on June

3, 2006). In response, the Commissioner moved to remand the action “for a de

novo hearing” under sentence six of 42 U.S.C. § 405(g) because significant

portions of the recording of the hearing could not be transcribed. 1 Atkins did not

oppose the Commissioner’s motion. In March 2010, the district court remanded

Atkins’ case “under sentence six for further proceedings by the Appeals Council.”

       In May 2010, the Appeals Council vacated the Commissioner’s final

decision and remanded the case to the ALJ. Consistent with the district court’s

remand order, the Appeals Council directed the ALJ to “take any further action

needed to complete the administrative record and issue a new decision.” 2 After

conducting a new administrative hearing, the ALJ issued a decision in December

2010 determining that Atkins was not disabled for any period of time.


       1
          Sentence six of § 405(g) gives a federal court the power to remand an application for
benefits to the Commissioner for the taking of additional evidence upon a showing “that there is
new evidence which is material and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding.”
       2
          Under 20 C.F.R. § 404.983, when a district court remands a claimant’s case to the
Commissioner, the Appeals Council may make a decision, or it may remand the case to an ALJ
with instructions either to take action and issue a decision or to return the case to the Appeals
Council with a recommended decision.


                                               3
                Case: 14-11191          Date Filed: 01/07/2015   Page: 4 of 13


      Atkins filed exceptions to the ALJ’s December 2010 decision. 3 The Appeals

Council remanded the case on the grounds that the unfavorable December 2010

decision did not address the partially favorable August 2007 decision or explain

why a different outcome was justified on the same record. The Appeals Council

ordered the case to be assigned to a different ALJ for a third administrative

hearing, during which Atkins would be able to submit additional or updated

evidence for the ALJ’s consideration. In July 2012, a different ALJ issued a

decision concluding that Atkins was not disabled for any period of time. Atkins

filed exceptions to the ALJ’s July 2012 decision, to no avail.

      Atkins then appealed to the district court, arguing that the Appeals Council

had denied her procedural due process by impermissibly directing reexamination

of an issue she did not raise — namely, whether she was disabled from December

31, 2003 until June 2, 2006 — without first giving her notice. Atkins also argued

that the doctrine of administrative res judicata barred the Appeals Council from

permitting an ALJ to review the August 2007 finding that she was disabled from

December 31, 2003 until June 2, 2006. A magistrate judge issued a report and

recommendation rejecting Atkins’ arguments and recommending that the

Commissioner’s decision be affirmed. Atkins did not object to the magistrate




      3
          See 20 C.F.R. § 404.984(b).
                                                 4
              Case: 14-11191      Date Filed: 01/07/2015    Page: 5 of 13


judge’s report and recommendation, and the district court adopted it and affirmed

the Commissioner’s decision. This is Atkins’ appeal.

                                           II.

      Whether the Appeals Council denied Atkins procedural due process and

whether administrative res judicata applies in Atkins’ case are questions of law that

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

2000). The fact that Atkins did not object to the magistrate judge’s report and

recommendation does not bar her from challenging the magistrate judge’s legal

conclusions, nor does it limit the scope of our review of those conclusions. See

Dupree v. Warden, 715 F.3d 1295, 1299–1300 (11th Cir. 2013).

      Atkins argues that the Appeals Council’s May 2010 remand order violated

her procedural due process rights by directing reexamination of an issue she did

not raise without providing the notice required under our decision in Kennedy v.

Bowen, 814 F.2d 1523 (11th Cir. 1987). Kennedy held that, where a claimant

seeks review of a limited issue (in that case, the date of onset of disability), the

Appeals Council may not on its own initiative expand the scope of its review

beyond that limited issue without first giving the claimant notice of its intent to do

so. Id. at 1527. But Kennedy and its progeny are grounded in the specific notice

requirement of 20 C.F.R. § 404.973, which applies when the Appeals Council itself

is reviewing the claimant’s case. See id. at 1526–28 (explaining that “the notice


                                           5
              Case: 14-11191     Date Filed: 01/07/2015    Page: 6 of 13


requirement must stem from the Social Security Administration’s regulations” and

that 20 C.F.R. § 404.973 establishes the notice requirement for when the Appeals

Council decides to review a case in a claimant-initiated appeal); Bivines v. Bowen,

833 F.2d 293, 295–97 (11th Cir. 1987) (confirming that “a notice requirement . . .

must have its genesis in the regulations of the Social Security Administration”);

see also Baker v. Sullivan, 880 F.2d 319, 320–21 (11th Cir. 1989) (holding that

Kennedy’s notice requirement applies when the Appeals Council reviews a case on

remand from the district court). That regulation provides that, “[w]hen the

Appeals Council decides to review a case, it shall mail a notice to all parties at

their last known address stating the reasons for the review and the issues to be

considered.” 20 C.F.R. § 404.973. Its specific notice requirement does not apply

in a case like this one, where the Appeals Council complies with the district court’s

remand order and remands the case to the ALJ for a de novo hearing. Instead, this

case is governed by 20 C.F.R. § 404.983, which provides that, “[i]f the case is

remanded by the Appeals Council” to the ALJ, “[a]ny issues relating to [the

claimant’s] claim may be considered by the administrative law judge whether or

not they were raised in the administrative proceedings leading to the final decision

in [the claimant’s] case.” (Emphasis added.) The district court correctly

concluded that Kennedy’s notice requirement does not apply here.




                                           6
               Case: 14-11191     Date Filed: 01/07/2015   Page: 7 of 13


        In any event, Atkins’ lack-of-notice argument fails in light of the record,

which establishes that she did have notice. In March 2010, the Commissioner

moved to remand Atkins’ case for a de novo hearing under sentence six of 42

U.S.C. § 405(g). Atkins did not oppose the Commissioner’s motion or request (as

she had done in her complaint) that the district court’s remand order specifically

limit the ALJ’s decision to the time period beginning on June 3, 2006. Based on

the Commissioner’s unopposed motion, the district court remanded Atkins’ case

“for further proceedings by the Appeals Council” and in no way limited the scope

of the remand. Because Atkins consented to the Commissioner’s motion to

remand the case for a de novo hearing, she was on notice that she would get a de

novo hearing. Similarly, in its second remand order, the Appeals Council

specifically provided that Atkins would be able to submit additional or updated

evidence for the ALJ’s consideration. In light of that remand order, Atkins cannot

claim that the Appeals Council caught her “off-guard and unprepared,” or that the

second ALJ determined that she was not disabled for any period of time without

considering “all the relevant evidence and legal arguments.” Kennedy, 814 F.2d at

1526.

        Atkins’ administrative res judicata argument also fails. Administrative res

judicata applies 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


                                           7
                 Case: 14-11191       Date Filed: 01/07/2015        Page: 8 of 13


issues, and [that] previous determination or decision [has] become final by either

administrative or judicial action.” 20 C.F.R. § 404.957(c)(1); see Cash v. Barnhart,

327 F.3d 1252, 1254–55 (11th Cir. 2003). Although Atkins did not challenge the

first ALJ’s determination that she was disabled from December 31, 2003 until June

2, 2006, the ALJ’s decision never became final because the Appeals Council

vacated it in May 2010. Cf. Quarles v. Sager, 687 F.2d 344, 346 (11th Cir. 1982)

(“Claim preclusion does not apply in this case. The judgment of the district court

was vacated; thus, no final judgment on the merits exists.”); United States v.

Lacey, 982 F.2d 410, 412 (10th Cir. 1992) (“A judgment that has been vacated,

reversed, or set aside on appeal is thereby deprived of all conclusive effect, both as

res judicata and as collateral estoppel. The same is true, of course, of a judgment

vacated by a trial court.”) (quotation marks omitted); Social Security Admin.,

Program Operations Manual System (POMS), GN 03106.036 Court Remand

Orders, https://secure.ssa.gov/poms.nsf/lnx/0203106036 (last visited November 3,

2014) (“[A district] court order vacating the [Commissioner’s] prior decision and

remanding the case to the Commissioner voids the prior decision . . . and thus

returns the case to the status of a claim ‘pending’ before the [Social Security

Administration].”). 4 The ALJs properly declined to give res judicata effect to the

August 2007 decision during later hearings.


      4
          We attach a copy of the internet material cited as an appendix to this opinion.
                                                 8
    Case: 14-11191   Date Filed: 01/07/2015   Page: 9 of 13


AFFIRMED.




                              9
Case: 14-11191   Date Filed: 01/07/2015   Page: 10 of 13
Case: 14-11191   Date Filed: 01/07/2015   Page: 11 of 13
Case: 14-11191   Date Filed: 01/07/2015   Page: 12 of 13
Case: 14-11191   Date Filed: 01/07/2015   Page: 13 of 13
