     Case: 11-60326    Document: 00511797176         Page: 1    Date Filed: 03/22/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                          FILED
                                                                        March 22, 2012

                                    No. 11-60326                         Lyle W. Cayce
                                  Summary Calendar                            Clerk



CHARLES L STRINGER,

                                                 Plaintiff - Appellant
v.

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY

                                                 Defendant - Appellee



                  Appeal from the United States District Court
                    for the Southern District of Mississippi
                            USDC No. 3:08-CV-730


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Charles Stringer appeals the denial of his application to the
Commissioner of Social Security for disability benefits. Upon review of the
Commissioner’s final decision, the district court entered judgment in the
Commissioner’s favor. We AFFIRM the district court’s judgment.
                                   BACKGROUND



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
   Case: 11-60326    Document: 00511797176      Page: 2   Date Filed: 03/22/2012



                                  No. 11-60326

      Stringer filed his initial application for disability benefits, pursuant to
20 C.F.R. § 404.350(a). An applicant is eligible for such benefits, called
“child’s benefits,” which the parties refer to as “disabled adult child’s
benefits,” if several criteria are met. Id. § 404.350(a)(1)-(5). As relevant here,
if the applicant is over 18, the applicant must “have a disability that began
before [he] became 22 years old.” Id. § 404.350(a)(5).
      20 C.F.R. § 404.1520(a)(4) lays out the Social Security Administration’s
(SSA) “five-step sequential evaluation process” for determining whether an
individual is disabled. The first three steps involve evaluating: (1) whether
the claimant is engaging in work that constitutes substantial gainful activity;
(2) the severity of the claimant’s impairment; (3) and whether the impairment
meets or equals an impairment listed impairment in Appendix 1, Subpart P
of 20 C.F.R. § 404. 20 C.F.R. § 404.1520(a)(4)(i)-(iii). Only if a claimant’s
impairment does not meet or equal a listed impairment does the SSA move on
to steps four and five. Id. § 404.1520(e). Those steps involve evaluating: (4)
whether the impairment prevents the claimant from returning to past
relevant work; and (5) whether the claimant is able to perform other work.
Id. § 404.1520(a)(4)(iv)-(v).
      Stringer’s application was rejected on the ground that his disability did
not begin before April 1, 1985, the date on which Stringer turned 22 years old.
Stringer was granted a hearing before an Administrative Law Judge (ALJ) on
the issue. Subsequently, the ALJ issued a decision concluding that Stringer
was not disabled before the age of 22. In support of that decision, the ALJ
made several findings regarding Stringer’s impairments and ability to work:
(1) that prior to the age of 22, Stringer had engaged in work constituting
substantial gainful activity in 1981, 1982, and 1985; (2) that Stringer suffered
from some severe impairments prior to the age of 22: a learning disorder,
conduct disorder, and depressive symptoms; (3) but that whether considered

                                        2
   Case: 11-60326       Document: 00511797176         Page: 3     Date Filed: 03/22/2012



                                       No. 11-60326

individually or together, Stringer’s impairments met or equaled the listed
impairments; (3) that Stringer was able to perform semi-skilled work activity
and physical activity at all levels of exertion prior to the age of 22; and (4)
that Stringer was not prevented by his impairments from working at his past
relevant work as a utility handler in manufacturing. Stringer subsequently
submitted a request for review to the Appeals Council, which was denied.
       Stringer then filed a petition for judicial review in district court.1
Stringer filed a motion for summary judgment, and the Commissioner filed a
motion to affirm the decision below. The district court referred these motions
to a magistrate, who issued a report and recommendation. The magistrate’s
report recommended denying Stringer’s motion, granting the Commissioner’s,
dismissing Stringer’s complaint, and entering judgment in the
Commissioner’s favor. The district court adopted the magistrate judge’s
report and recommendation over Stringer’s objections, and entered judgment
in the Commissioner’s favor. Stringer then submitted a motion to alter or
amend the judgment, which was denied. Stringer timely appealed.
                              STANDARD OF REVIEW
       In an appeal from a decision by the Commissioner, “this court reviews
the record under the same standard as the district court.” Dominigue v.
Barnhart, 388 F.3d 462, 463 (5th Cir. 2004). In Social Security disability
cases, “appellate review is limited to (1) whether the Commissioner applied
the proper legal standard; and (2) whether the Commissioner’s decision is
supported by substantial evidence.” Waters v. Barnhart, 276 F.3d 716, 718
(5th Cir. 2002). “‘Substantial evidence is such relevant evidence as a
responsible mind might accept to support a conclusion. It is more than a
mere scintilla and less than a preponderance. A finding of no substantial

       1
      42 U.S.C. § 405(g) permits claimants to obtain judicial review of final decisions by the
Commissioner, issued after a hearing in which they took part.

                                              3
   Case: 11-60326    Document: 00511797176     Page: 4    Date Filed: 03/22/2012



                                  No. 11-60326

evidence is appropriate only if no credible evidentiary choices or medical
findings support the decision. In applying this standard, we may not
re-weigh the evidence or substitute our judgment for that of the
Commissioner.’” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001) (quoting
Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000)).
                                  ANALYSIS
      Stringer raises eight arguments on appeal. He claims that: (1) the
district court erred in allowing a magistrate judge to rule on his motion for
summary judgment; (2) the district court erred in not addressing his 42
U.S.C. § 1983 claim; (3) if Stringer was found disabled for the purposes of
receiving Supplemental Security Income (SSI) benefits, then he should also
have been found to be disabled for the purposes of receiving child’s benefits;
(4) the ALJ erred in failing to find that the onset of his bipolar disease or
manic depression occurred before he turned 22; (5) the district court erred by
not ruling on his motions to correct the record and transcript as well as to
supplement the record; (6) the district court erred in dismissing Stringer’s
complaint with prejudice; (7) the magistrate judge should have recused
herself from Stringer’s case; and (8) the district court judge should have
recused himself from Stringer’s case. We address each argument in turn.
                                        A.
      First, Stringer argues that the district court erred in allowing a
magistrate judge to decide his motion for summary judgment. But the
magistrate judge did not decide the motion. Rather, she prepared a report
and recommendation, which the district court adopted in its decision to deny
Stringer’s motion. The magistrate judge and district court judge proceeded in
accordance with 28 U.S.C. § 636(b)(3), which “allows a district judge to
delegate discrete tasks to a magistrate judge, but retain the last word
through deciding whether to accept the resulting magistrate judge’s report

                                        4
   Case: 11-60326       Document: 00511797176          Page: 5    Date Filed: 03/22/2012


                                       No. 11-60326

and recommendation.” United States v. Underwood, 597 F.3d 661, 669 (5th
Cir. 2010). Stringer had the opportunity to submit objections to the
magistrate judge’s report, which he did. The district court considered those
objections and rejected them. Accordingly, Stringer’s argument that the
district court should not have permitted the magistrate judge to decide his
motion for summary judgment is unavailing.
                                              B.
       Second, Stringer contends that the district court erred by not
addressing his 42 U.S.C. § 1983 claim. Stringer argues that he has suffered a
violation of his civil rights, and offers in support a claim that he can produce
a witness who has “not work[ed] as much as” Stringer and yet received Social
Security benefits. We find this argument to be unpersuasive. In his
appellate brief, Stringer cites no evidence regarding this witness, or any
relevant authority supporting his argument. See Fed. R. App. P. 28(a)(9)(A)
(appellate briefs must contain “contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant
relies”); Rui Yang v. Holder, 664 F.3d 580, 589 (5th Cir. 2011) (“While we
‘liberally construe briefs of pro se litigants and apply less stringent standards
to parties proceeding pro se than to parties represented by counsel, pro se
parties must still brief the issues and reasonably comply with the standards
of Rule 28.’” (quoting Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995)
(citation omitted)).2
                                              C.



       2
        Stringer also claims for the first time on appeal that employees of the Social Security
Administration hindered him in applying for benefits because they knew that he had
previously been incarcerated. However, “arguments not raised before the district court are
waived and cannot be raised for the first time on appeal.” Martco Ltd. P’ship v. Wellons, Inc.,
588 F.3d 864, 877 (5th Cir. 2009). Moreover, Stringer cites no evidentiary support for his
claim.

                                              5
   Case: 11-60326      Document: 00511797176         Page: 6     Date Filed: 03/22/2012


                                      No. 11-60326

       Third, Stringer claims that, because he was found disabled for the
purposes of receiving SSI benefits in October 1997, he should also have been
found disabled for the purposes of receiving disabled adult child’s benefits.
However, the relevant date for determining whether a claimant is disabled,
and thus eligible to receive SSI benefits, is the filing date of his application.
See Social Security Ruling 83-20, 1983 WL 31249, at *7 (explaining that for
successful SSI benefits claimants, “[o]nset will be established as of the date of
filing provided the individual was disabled on that date”).3 Accordingly, a
finding that Stringer was disabled in October 1997 does not indicate that he
was disabled before April 1, 1985, the date on which he turned 22.
                                             D.
       Stringer’s fourth argument is that the ALJ erred in finding that his
bipolar disorder/manic depression did not onset before he turned 22. Because
the ALJ found that, before the age of 22, Stringer had severe impairments
consisting of a learning disorder, conduct disorder, and depressive symptoms,
Stringer contends that the ALJ should also have concluded that these were
symptoms of bipolar disorder. However, Stringer cites no evidence or
authority for this assertion. Moreover, as Stringer himself admits, although
he turned 22 in 1985, he was not diagnosed with bipolar disorder until 1997.
       Even if Stringer had bipolar disorder before the age of 22, he has not
shown that the ALJ should thus have concluded that he was disabled. The
ALJ’s finding that Stringer performed work before the age of 22 that
constituted substantial gainful activity was sufficient to conclude that he was
not disabled. See 20 C.F.R. § 404.1520(a)(4)(i) (“If . . . the work you are doing
is substantial gainful activity, we will find that you are not disabled . . . .”).


       3
         There are certain limited instances in which the Commissioner may look before the
date of filing: applications involving “certain aliens” or applications “where duration is at
issue.” See id. at *8. Stringer does not contend that either of these instances applies here.

                                             6
   Case: 11-60326       Document: 00511797176          Page: 7     Date Filed: 03/22/2012


                                       No. 11-60326

Stringer asserts that prior to the age of 22, he was not able to obtain
promotions at work and was twice fired from his job. But this does not mean
that he was not able to engage in substantial gainful activity. The record
shows that Stringer obtained his general equivalency diploma (GED) by the
age of 19. Additionally, Stringer testified before the ALJ that between the
ages of 18 and 21, he worked at a plastics company two times: the first time
he worked there for approximately a year and a half, and the second time he
worked there for approximately a year. Nor does Stringer dispute the ALJ’s
finding that his earnings records for 1981, 1982, and 1985 were “at or above
the substantial gainful activity level.” Thus, there is substantial evidence
supporting the ALJ’s conclusion that Stringer engaged in substantial gainful
activity before the age of 22.
                                              E.
       Fifth, Stringer argues that the district court erred by not ruling on his
motions to correct the sealed court transcript, correct sealed court records,
and to supplement court records. But, as shown on the docket sheet, the
magistrate judge did rule on Stringer’s motions, as she was permitted to do.
See 28 U.S.C. § 636(b)(1)(A) (stating that “a judge may designate a magistrate
judge to hear and determine any pretrial matter pending before the court,”
with certain exceptions that are inapplicable here). Stringer also alleges that
the magistrate judge altered the docket sheet to make it appear that she
ruled on his motions before the district court adopted her report and
recommendation. Stringer cites no evidence to support this allegation, and
we find it to be without merit. Stringer also argues that because the
Commissioner never filed a response to these motions, the records should not
be taken as true and correct; he cites no authority for this proposition.4

       4
        Stringer appears to dispute the merits of the rulings on his motions in his reply brief.
Insofar as he has raised such an argument, “[w]e need not address [it], as it is raised for the

                                               7
   Case: 11-60326       Document: 00511797176         Page: 8     Date Filed: 03/22/2012


                                       No. 11-60326

                                             F.
       Stringer’s sixth argument is that the district court erred in dismissing
his case with prejudice, instead of without prejudice. Stringer cites Thomas
v. Phillips, 83 F. App’x 661 (5th Cir. 2003) (unpublished), but that case is
inapposite. The plaintiff in Thomas filed a voluntary petition for dismissal
under Federal Rule of Civil Procedure 41, and the defendant had not filed an
answer to the plaintiff’s complaint. Id. at 661-62. Rule 41 is not at issue in
this case; thus, the district court did not err in dismissing Stringer’s
complaint with prejudice.
                                             G.
       Seventh, Stringer claims that the magistrate judge should have recused
herself from the instant case because she is a former United States Attorney
and such attorneys are currently representing the Commissioner. Relatedly,
he also refers to and critiques her past employment as a district attorney.
While a judge should recuse herself if “[s]he has served in governmental
employment and in such capacity participated as counsel, adviser, or material
witness concerning the proceeding or expressed an opinion concerning the
merits of the particular case in controversy,” 28 U.S.C. § 455(b)(3), that is not
the case here. There is no evidence that the magistrate judge has done any of
the above. Therefore, Stringer’s claim that the magistrate judge should have
recused herself from his case lacks merit.
                                             H.
       Finally, Stringer contends that the district court judge should have
recused himself from Stringer’s case as well. In support of this argument,
Stringer claims that the district judge “dressed as a woman” so he could pose
as a clerk of the court in order to “sabotage” Stringer’s case; was biased


first time in a reply brief.” Medina Cnty Env’tl Action Ass’n v. Surface Transp. Bd., 602 F.3d
687, 702 (5th Cir. 2010).

                                              8
   Case: 11-60326   Document: 00511797176     Page: 9   Date Filed: 03/22/2012


                                 No. 11-60326

because he agreed with the recommendation of the magistrate judge; and has
used his positions as a judge and as a district attorney for “personal [and]
financial gain.” And, as with the magistrate judge, Stringer critiques the
district court judge’s past employment as a district attorney. Stringer cites
no evidence to support his allegations. Thus, he has not shown that the
district court judge should have recused himself from the instant case. See 28
U.S.C. § 455(a)-(b) (listing circumstances under which judges should recuse
themselves from proceedings).
                                CONCLUSION
      For the above reasons, we AFFIRM the district court’s judgment.




                                       9
