            Case: 13-15169   Date Filed: 09/09/2014   Page: 1 of 10


                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-15169
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 4:12-cv-01957-LSC

LARA POLK,

                                                             Plaintiff-Appellant,

                                   versus

SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,

                                                            Defendant-Appellee.

                        ________________________

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

                             (September 9, 2014)

Before PRYOR, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

     Lara Polk, through counsel, appeals the district court’s affirmance of the

Social Security Administration Commissioner’s (“Commissioner”) denial of her
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application for disability insurance benefits and supplemental security income

(collectively, “disability benefits” or “benefits”), as well as the denial of her post-

judgment motions, filed pursuant to Rules 59(e) and 60(b), Fed. R. Civ. P. We

lack jurisdiction to review the underlying denial of benefits, and, after careful

review, we affirm the denial of the post-judgment motions.

                                          I.

      Polk, a 43-year-old female, applied for disability benefits in December 2009.

She claimed to suffer from, among other things, severe panic attacks, fibromyalgia,

irritable bowel syndrome, endometriosis, asthma, and a history of cervical cancer,

and she alleged a disability-onset date of August 1, 2008. The Commissioner

initially denied her application. In April 2011, Polk appeared without counsel at a

hearing before an Administrative Law Judge (“ALJ”).

      In addition to two physical evaluations, the ALJ had Polk undergo two

psychological evaluations before issuing a written decision. In the first evaluation,

performed by Dr. Robert Storjohann before the ALJ hearing, Dr. Storjohann

diagnosed Polk with generalized anxiety disorder that was unlikely to improve in

the near future, and concluded that she had moderate deficits in her ability to

understand, carry out, and remember instructions, and marked deficits in her ability

to respond appropriately to co-workers, supervisors, and other work pressures.

      After the hearing, the ALJ referred Polk to Dr. Dana Davis for a second


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psychological evaluation, completed in July 2011. In contrast to Dr. Storjohann,

Dr. Davis diagnosed Polk as having somatization disorder, which according to her

is characterized by vague medical issues—such as pain, gastric distress, and other

physical symptoms—that increase with stress.             Dr. Davis explained that

individuals with a similar diagnostic profile often “make excessive use of denial,

projection, and rationalization, and they prefer medical explanations for their

symptoms.”

      Months after the hearing, the ALJ issued a written decision concluding that

Polk was not disabled and, therefore, did not qualify for benefits. In reaching this

conclusion, the ALJ considered the somewhat conflicting psychological

evaluations of Dr. Storjohann and Dr. Davis, but accorded greater weight to Dr.

Davis’s evaluation because it was, in the ALJ’s opinion, more consistent with

Polk’s self-described activities and treatment records. The Appeals Council denied

Polk’s request for administrative review in May 2012.

                                        II.

      Polk filed a counseled complaint in the district court challenging the ALJ’s

decision as unsupported by substantial evidence. With the assistance of counsel,

Polk obtained a new psychological evaluation in June 2012 from Dr. David

Wilson, who concluded that Polk “would have difficulty maintaining any type of

job” because she suffered from, among other things, panic and depressive


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disorders, low-average intelligence, fibromyalgia, irritable bowel syndrome, and

arthritis. Based on Dr. Wilson’s evaluation, which generally was consistent with

Dr. Storjohann’s evaluation, Polk moved to remand her claim to the Commissioner

pursuant to “sentence six” of 42 U.S.C. § 405(g).1

       On August 9, 2013, the district court affirmed the Commissioner’s decision

and denied Polk’s motion for remand. More than 28 days later, on September 9,

2013, Polk filed a Rule 59(e) motion to alter the court’s order, in which she

(a) complained that she was denied the right to representation before the ALJ, and

(b) renewed her request for a remand based on Dr. Wilson’s evaluation. The

Commissioner objected to the Rule 59(e) motion on the basis that it was untimely,

but also addressed the merits of the motion. Polk later acknowledged that the Rule

59(e) motion was untimely and asked the court to construe the motion as

alternatively filed pursuant to Rule 60.

       Several days after the Rule 59(e) motion, Polk filed a Rule 60(b) motion for

relief, once again urging the district court to reconsider its final order and remand

her claim to the Commissioner. This time, however, she relied on a second report

prepared by Dr. Wilson in September 2013, which purported to resolve the conflict

between Dr. Storjohann’s and Dr. Davis’s evaluations. In this report, Dr. Wilson

       1
           A “sentence-six” remand allows a federal court to remand an application to the
Commissioner when the claimant submits evidence for the first time to the court that might have
changed the outcome of the administrative proceeding. See 42 U.S.C. § 405(g); Shalala v.
Schaefer, 509 U.S. 292, 297 n.2, 113 S. Ct 2625 (1993).
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concluded that Dr. Storjohann’s report was “more accurate and comprehensive.”

      The district court denied both of Polk’s post-judgment motions in a single

order entered on October 28, 2013. First, the court denied her Rule 59(e) motion

as time-barred. Alternatively, the court found that the motion failed on the merits

because her ineffective-waiver-of-representation claim was improperly raised for

the first time in a post-judgment motion, was belied by the record, and failed to

include a showing of prejudice. Moreover, the court found that Dr. Wilson’s June

2012 evaluation was not “material,” and therefore did not merit a sentence-six

remand. Second, the court denied Polk’s Rule 60(b) motion because she had not

exercised due diligence in obtaining Dr. Wilson’s September 2013 report. This

appeal followed.

                                        III.

      We first address our jurisdiction over this appeal. A motions panel of this

Court dismissed this appeal in part for lack of jurisdiction to review the underlying

judgment affirming the Commissioner’s denial of benefits and denying Polk’s

motion for a remand based on Dr. Wilson’s June 2012 evaluation. We see no

reason to disturb this ruling. Polk’s Rule 59(e) motion was not filed within 28

days of the judgment, and so did not postpone the time to appeal, and Polk did not

timely file a notice of appeal within 60 days of the judgment. See Green v. Drug

Enforcement Admin., 606 F.3d 1296, 1300-02 (11th Cir. 2010) (untimely motions


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under Rules 59(e) and 60 do not toll the appeal period); Fed. R. App. P. 4(a)(1)(B),

(4). Accordingly, we lack jurisdiction to review the district court’s August 9, 2013

judgment.

      Nevertheless, we retain limited jurisdiction under 28 U.S.C. § 1291 to

review the denial of Polk’s post-judgment motions, which we address below. See

Thomas v. Blue Cross & Blue Shield Ass’n, 594 F.3d 823, 829 (11th Cir. 2010).

                                        IV.

      Polk argues that the district court erred in denying her Rule 59(e) motion

because she was denied the statutory right to counsel at her administrative hearing.

In addition, she asserts, the district court should have remanded her benefits claim

based on Dr. Wilson’s June 2012 evaluation. Polk also contends that the district

court abused its discretion in denying her Rule 60(b) motion based on Dr. Wilson’s

September 2013 report.

      We review the denial of a post-judgment motion under Rules 59(e) or 60(b)

for an abuse of discretion. Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d

1299, 1318 (11th Cir. 2013) (Rule 59(e)); Am. Bankers Ins. Co. v. Nw. Nat’l Ins.

Co., 198 F.3d 1332, 1338 (11th Cir. 1999) (Rule 60(b)).

                                        A.

      Notably, Polk does not dispute the district court’s alternative denial of her

Rule 59(e) motion as time-barred. See Fed. R. Civ. P. 59(e) (Rule 59(e) motion


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must be filed within 28 days of judgment). To obtain reversal of a district court

order that is based on multiple, independent grounds—as was the case here—an

appellant “must convince us that every stated ground for the judgment against him

is incorrect.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.

2014) (emphasis added). Accordingly, if one of the independent grounds is not

challenged, “it follows that the judgment is due to be affirmed.” Id. Because Polk

does not challenge the court’s timeliness finding, the order denying her Rule 59(e)

motion is due to be affirmed. Moreover, Polk does not challenge the finding that

her ineffective-waiver argument was not properly raised for the first time in a Rule

59(e) motion. See Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (Rule

59(e) motion cannot be used to raise an argument that could have been raised

before entry of judgment).

       In any case, we discern no abuse of discretion in the district court’s denial of

the motion on the merits. 2 First, the court properly found that Polk had effectively

waived her right to counsel. A Social Security claimant has a statutory right to be

represented at a hearing before an ALJ. 42 U.S.C. § 406; Graham v. Apfel, 129

F.3d 1420, 1422 (11th Cir. 1997). The right of representation may be waived,


       2
         Arguably the district court lacked authority to address the merits of the motion under
Rule 59(e), given that the Commissioner objected to the timeliness of the motion. See Advanced
Bodycare Solutions, LLC v. Thione Int’l, Inc., 615 F.3d 1352, 1359 n.15 (11th Cir. 2010).
Nevertheless, the Commissioner also addressed the merits of the motion, and untimely Rule
59(e) motions may be construed as motions for relief under Rule 60(b). Mahone v. Ray, 326
F.3d 1176, 1177 n.1 (11th Cir. 2003).
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provided that the claimant is “properly apprised” of her representation options,

including the possibility of free counsel and limitations on attorney’s fees to

twenty-five percent of any eventual award. Smith v. Schweiker, 677 F.2d 826, 828

(11th Cir. 1982).     The ALJ in this case explained to Polk her right to be

represented at the hearing, the possibility of free counsel, and the applicable

limitations on attorney’s fees, and Polk confirmed that she understood her right and

wished to continue with the hearing. Our review of the record does not show that

Polk failed to understand the nature of her right or the effect of continuing without

representation, notwithstanding that she suffered from anxiety at the time.

      Second, even assuming Polk did not effectively waive her right to counsel,

we agree with the district court that Polk has not shown “clear prejudice” or

“unfairness,” such that the lack of counsel led to a denial of a full and fair hearing.

See Graham, 129 F.3d at 1422-23; Smith, 677 F.2d at 829. When a claimant has

not waived the right to counsel, the ALJ has a heightened duty to develop the

record fully and fairly. Id. In this case, Polk underwent two physical evaluations

and two psychological evaluations at the ALJ’s request, and the ALJ solicited

testimony from Polk on her ailments at the hearing. The only deficiency Polk has

identified is that Dr. Wilson’s June 2012 psychological evaluation was not before




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the ALJ or the Appeals Council.3              However, Polk admits that Dr. Wilson’s

evaluation only substantiated Dr. Storjohann’s evaluation, and therefore it did not

fill an evidentiary gap so much as bolster the credibility of evidence already in the

record. See Smith, 677 F.2d at 830 (relevant inquiry is “whether the record reveals

evidentiary gaps which result in unfairness or ‘clear prejudice’”).                      Polk’s

subjective expectation that she “had every reason to believe she would be awarded

disability benefits without the need of an attorney representative,” without more, is

speculative and insufficient to show prejudice.

       Finally, because we lack jurisdiction to review the district court’s underlying

order denying Polk’s motion for a sentence-six remand based on Dr. Wilson’s

evaluation, Polk cannot obtain review of that same issue through an appeal from

the denial of a post-judgment motion. See Am. Bankers Ins. Co., 198 F.3d at 1338.

                                               B.

       Rule 60(b) permits relief from a final judgment based on, among other

things, “newly discovered evidence.” See Fed. R. Civ. P. 60(b)(2). To obtain

relief based on newly discovered evidence, a movant must show, among other

things, that she exercised due diligence to discover the new evidence. Waddell v.

Hendry Cnty. Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003).


       3
          We decline to consider Polk’s argument that the ALJ should not have ordered the
second evaluation from Dr. Davis because Polk raised the argument for the first time in her reply
brief. Sapuppo, 739 F.3d at 682-83.
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      We agree with the district court that Polk did not establish that she exercised

due diligence in securing Dr. Wilson’s September 2013 report.            See id.   Dr.

Wilson’s first evaluation was prepared in June 2012, before the district court issued

its final order. Yet, Polk offered no good reason in her Rule 60(b) motion—and

does not do so now—why Dr. Wilson was not able to review and comment on Dr.

Davis’s July 2011 evaluation at an earlier time. The purported need for Dr.

Wilson’s commentary arose well before the district court entered judgment in this

case. Consequently, the district court did not abuse its discretion in denying her

Rule 60(b) motion. See id.

                                         V.

      In sum, we lack jurisdiction to review the underlying judgment affirming the

denial of disability benefits and denying Polk’s motion for a sentence-six remand,

and we affirm the district court’s denial of Polk’s post-judgment motions.

      AFFIRMED.




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