           Case: 19-11787   Date Filed: 11/19/2019   Page: 1 of 16


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-11787
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:17-cv-00976-MCR-MJF



RUTH ELLEN REEVES,

                                                            Plaintiff–Appellant,

                                   versus

SOCIAL SECURITY COMMISSIONER,

                                                          Defendant–Appellee.

                       ________________________

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

                            (November 19, 2019)

Before WILLIAM PRYOR, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM:
             Case: 19-11787     Date Filed: 11/19/2019   Page: 2 of 16


      Ruth Ellen Reeves, pro se, appeals the district court’s order affirming the

decision of the Social Security Commissioner (“Commissioner”) to deny her

application for disability insurance benefits (“DIB”). We affirm.

                                I. BACKGROUND

      On March 4, 2015, Reeves applied for a period of disability and DIB,

alleging disability beginning on March 1, 2014. In her disability report, Reeves

indicated that she had stopped working because she had suffered from: ruptured

discs in her neck and back; back problems; a triple discectomy with fusion related

to a neck break on three levels; continued migraines following months of migraine

attacks; controlled diabetes; and arthritis in many parts of her body stemming from

injuries. Reeves previously had worked as a cashier, sales attendant, and

customer-service representative. Her application was initially denied in March

2015, after which she filed a written request for an administrative hearing before

an administrative law judge (“ALJ”). While the hearing was scheduled for

February 2017, it actually occurred in May 2017.

      At the May 2017 hearing, the ALJ added to the record all of the evidence

that previously had been submitted, as well as the evidence submitted during the

hearing. The ALJ heard testimony from Reeves; Reeves’s daughter; and Rick

Freeman, a vocational expert (“VE”). According to Reeves’s testimony, she had

not worked full time since 2006. She had stopped working because her neck had


                                         2
              Case: 19-11787     Date Filed: 11/19/2019   Page: 3 of 16


been “severely broken on three levels,” she had been diagnosed with a severe case

of degenerative disc disease, and her liver was “real bad.” Reeves’s daughter

testified regarding a car accident in April 2014 in which Reeves broke her neck for

a second time. She also testified that Reeves was incapable of doing most of her

daily activities because she was extremely limited by her pain and migraines.

      The VE testified that Reeves’s past work as a cashier and sales attendant had

involved light and unskilled work, while her work as a customer service

representative had involved light and semi-skilled work. The ALJ asked the VE

whether a hypothetical person could perform Reeves’s past work, where that

person: had the same educational and vocational history; could perform the full

range of medium work with occasional postural and manipulative limitations; had

environmental limitations regarding vibrations, hazardous machines, heights, and

respiration; and had no mental limitations. The VE responded that someone with

those limitations could perform Reeves’s past work. The VE then offered the

positions of information clerk, mail clerk or mail sorter, parking lot attendant, and

office helper as jobs available in the national economy that someone with those

limitations could perform.

      The record also included the medical opinions of Dr. Efren Baltazar and Dr.

Stephen Schwartz. Dr. Baltazar, who opined on Reeves’s residual functional

capacity (“RFC”) in May 2015, found that, notwithstanding her bulging discs and


                                          3
              Case: 19-11787     Date Filed: 11/19/2019    Page: 4 of 16


slight neural foraminal encroachment, Reeves could: occasionally lift and/or carry

50 pounds; frequently lift and/or carry 25 pounds; sit, stand and/or walk for 6 hours

in an 8-hour workday; and push and/or pull in accordance with her lifting

restrictions. However, Dr. Baltazar stated that Reeves should avoid concentrated

exposure to extreme heat, noise, and vibrations due to her migraines. Dr. Stephen

Schwartz, who had performed a consultative RFC medical examination of Reeves

in March 2017, noted that Reeves complained of back pain starting in 2014, neck

pain starting in 2000, liver disease, heart disease, degenerative disc disease in her

back and neck, arthritis, migraines, and severe back pain. Based on a physical

evaluation, neuropsychological examination, and range-of-motion report, Dr.

Schwartz opined that Reeves could: lift and/or carry 21 to 25 pounds frequently; sit

for 6 hours out of an 8-hour workday; stand and/or walk for 3 hours out of an 8-

hour workday; use her hands and feet without limitation; climb stairs, ramps,

ladders, and scaffolds frequently; and balance, stoop, kneel, crouch, and crawl

continuously. Dr. Schwartz also opined that Reeves could frequently tolerate

exposure to unprotected heights, extreme cold and heat, vibrations, and moderate

noise, and was not prevented from engaging in normal daily activities.

      The ALJ denied Reeves’s claim, concluding that she had not been under a

disability since she filed her application within the meaning of the Social Security

Act and for the purposes of obtaining DIB. The ALJ applied the five-step analysis


                                           4
              Case: 19-11787    Date Filed: 11/19/2019   Page: 5 of 16


used to determine if an individual is disabled. At step two, the ALJ found that

Reeves had three substantial impairments: cervical/lumbar degenerative disc

disease; a triple discectomy with fusion in 2007 and cervical reinjury in April

2014; and arthritis. At step three, the ALJ found that Reeves’s degenerative disc

disease did not constitute an impairment or combination of impairments that met or

was medically equal to the severity of one of the impairments listed in the 20

C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”). The ALJ found that

Reeves was capable of performing past relevant work as a cashier, sales attendant,

and customer-service representative, as the VE had testified that those jobs were at

the light exertional level and involved only unskilled or semi-skilled work.

Additionally, the ALJ noted that jobs existed in the national economy in significant

numbers that Reeves could perform given her RFC, including informational clerk,

mail clerk, parking lot attendant, and office helper. Given the availability of work

that Reeves could perform, the ALJ concluded found that she was not disabled for

the purposes of the Social Security Act.

      The Appeals Council denied Reeves’s request for review. Reeves then filed

a complaint in the district court seeking review of the Commissioner’s denial of

her application for DIB. A magistrate judge issued a report and recommendation

(“R&R”) recommending that the district court affirm the Commissioner’s decision.




                                           5
              Case: 19-11787    Date Filed: 11/19/2019    Page: 6 of 16


The district court reviewed the record de novo, adopted the R&R over Reeves’s

objections, and affirmed the Commissioner’s decision.

                                 II. DISCUSSION

A. Whether the ALJ Committed Reversible Procedural Errors

      As an initial matter, Reeves questions our jurisdiction to review her claims

because the total amount of disability benefits due to her exceeds our “limitations,”

and the record upon which we would issue an opinion is “purposely incomplete

and illegally obtained.” Reeves then argues that the ALJ committed reversible

error by failing to bring to the hearing any of the evidence that she previously had

submitted. She also argues that the ALJ violated Article III of the U.S.

Constitution by stopping the initial hearing and requiring her to get examined by a

doctor and an unnamed chiropractor before the hearing was resumed, even though

she had two letters from the Social Security Administration (“SSA”) that indicated

that no such examination was necessary. In addition, she contends that the ALJ

ignored the medical evidence that she had submitted, relying instead on evidence

that Reeves had informed him was “fruit of the poisonous tree, illegally obtained

with a disregard to Social Security’s own laws.” She further argues that the SSA’s

medical examiners were either provided incomplete medical records or ignored

those records, in violation of her right to equal protection. Finally, she contends

that the ALJ and VE made biased statements during the hearing that do not appear


                                          6
              Case: 19-11787      Date Filed: 11/19/2019     Page: 7 of 16


in the certified transcript. Specifically, she asserts that, in response to her question

about whether someone with her medical impairments could perform the duties of

the jobs offered by the VE, the VE responded, “If it is YOU! Yes!” after which the

ALJ rephrased the question by asking if the same would hold true for “a NORMAL

person.”

      Following the issuance of the Commissioner’s final decision, “irrespective

of the amount in controversy,” a party may seek review of that decision in the

district court. 42 U.S.C. § 405(g). We, in turn, have jurisdiction over all final

decisions of the district court. 28 U.S.C. § 1291. We will not consider on appeal

an issue that a party has waived by not first raising that issue before the district

court. Chandler v. Sec’y of Fla. Dep’t of Transp., 695 F.3d 1194, 1198 n.2 (11th

Cir. 2012). Where a party was informed of the time period for objecting to a

magistrate judge’s R&R and the consequences for failing to do so, we will review

only for plain error the district court’s order, to the extent that it is based on the

R&R’s unobjected-to factual and legal conclusions. 11th Cir. R. 3-1.

      We review the Commissioner’s conclusions of law and the district court’s

judgment de novo. Parks ex rel. D.P. v. Comm’r, Soc. Sec. Admin., 783 F.3d 847,

850 (11th Cir. 2015). The Commissioner’s factual findings are conclusive if they

are supported by substantial evidence, which is relevant evidence that a reasonable

person would accept as adequate to support a conclusion. Id.


                                            7
              Case: 19-11787     Date Filed: 11/19/2019    Page: 8 of 16


      Generally, an applicant for DIB bears the burden of proving that they are

disabled and must submit evidence in support of her claim. 20 C.F.R.

§ 416.912(a)(1). The SSA may ask an applicant to attend one or more consultative

examinations from a qualified medical examiner, though such a request generally

will not be made until the SSA has made every reasonable effort to obtain evidence

from the applicant’s medical sources. Id. § 416.912(b)(2). A consultative

examination may be requested to try to resolve inconsistencies in the evidence, or

when the evidence as a whole is insufficient to support a determination on an

applicant’s claim. Id. § 416.919a(b). The SSA will provide the medical examiner

any necessary background information about the applicant’s condition. Id.

§ 416.917. A medical examiner is “qualified” if he or she is licensed in the state

where the examination will take place and has the experience and training to

perform the requested examinations or tests. Id. § 416.919g(b).

      The ALJ must base his decision on the preponderance of the evidence

offered at the hearing or otherwise included in the record. Id. § 416.1453. The

ALJ will consider all evidence in the record when making a disability

determination. Id. § 416.920. All hearings are recorded, and a typed copy of that

recording will be prepared if, among other things, the applicant seeks review of her

case in the district court. Id. § 416.1451(a)(2). The official record contains all of

the evidence upon which the ALJ relied in making a determination, including


                                           8
              Case: 19-11787     Date Filed: 11/19/2019    Page: 9 of 16


“applications, written statements, certificates, reports, affidavits, medical records,

and other documents that were used in making the decision under review and any

additional evidence or written statements that the administrative law judge admits

into the record.” Id. § 416.1451(b).

      A presumption exists that judicial and quasi-judicial officers such as ALJs

are unbiased. Schweiker v. McClure, 456 U.S. 188, 195, 102 S. Ct. 1665, 1670

(1982). That presumption can be rebutted by showing a conflict of interest or

some other specific reason warranting the ALJ’s disqualification. Id., 102 S. Ct. at

1670. The party asserting a disqualifying interest bears the burden of establishing

its existence. Id. at 196, 102 S. Ct. at 1670. Bias is shown where an objective,

fully-informed lay person would have significant doubt about a judge’s

impartiality. In re Walker, 532 F.3d 1304, 1310 (11th Cir. 2008). Generally, bias

sufficient to disqualify a judge must stem from an extrajudicial source, except

where a judge’s remarks in a judicial context show such pervasive bias and

prejudice that it constitutes bias against a party. Id. at 1310-11.

      As an initial matter, we have jurisdiction to review Reeves’s claims because

she was permitted to seek review of the denial of her claim for DIB in the district

court “irrespective of the amount in controversy,” and we have jurisdiction over

the district court’s affirmance of the Commissioner’s decision. 42 U.S.C. §

405(g); 28 U.S.C. § 1291. As for her claim that we lack jurisdiction over her case


                                           9
             Case: 19-11787     Date Filed: 11/19/2019    Page: 10 of 16


because any decision would be “poisoned” to the extent it would be based on a

“purposefully incomplete and illegally obtained” record, she conflates the issue of

whether we have the authority to decide a given case with the issue of whether that

decision would be factually and legally correct based on the record before us.

Because our ability to review her case is not dependent on the accuracy of the

record on appeal, but rather, the statutorily invested authority to review final orders

of the Commissioner following review by the district court, we have jurisdiction

over Reeves’s appeal.

      The record does not support Reeves’s claim that the ALJ was biased or

prejudiced against her. First, the hearing transcript contained in the official record

does not contain the alleged biased statements that Reeves asserts the ALJ and VE

made, and the ALJ is presumed to have acted honestly and with integrity in

compiling the record. See McClure, 456 U.S. at 195, 102 S. Ct. at 1670. Second,

there is no evidence supporting her claim that those comments were purposefully

withheld from inclusion in the official record, nor has she demonstrated a conflict

of interest or extra-judicial source of bias or prejudice that would cause an ordinary

person to question the ALJ’s impartiality in compiling the record. Third, the

statements allegedly made by the ALJ and VE during the hearing would not

warrant remand because, even if they did make those statements, they do not

demonstrate bias or prejudice that call into question the ALJ’s impartiality. See In


                                          10
              Case: 19-11787     Date Filed: 11/19/2019     Page: 11 of 16


re Walker, 532 F.3d at 1310. Finally, the alleged statements are not so extreme as

to suggest that the ALJ or VE harbored any malice or ill-will towards Reeves that

might indicate that they were biased against her.

      While Reeves argues that the ALJ committed reversible error by failing to

bring to the initial February 2017 hearing any of the evidence that she previously

had submitted, this argument is without merit. Reeves made this argument below

in her initial filings with the district court; however, she failed to object to the

R&R’s conclusion that she had not shown that she was prejudiced by the ALJ’s

alleged failure to come to her initial hearing with all of the record evidence, and

she was informed of the time frame for objecting to the R&R’s factual and legal

conclusions and the consequences for failing to do so. Thus, we review Reeves’s

claim only for plain error. 11th Cir. R. 3-1. The record does not show that the ALJ

erred, much less plainly so, by arriving at the initial hearing unprepared. The

record does not contain a transcript of a February 2017 hearing; thus, there is no

evidentiary support for Reeves’s claim that the ALJ was unprepared for that

hearing. While the regulations governing the issuance of the ALJ’s decision

require that he consider all of the record evidence in making that determination,

those regulations are silent on the issue of whether the ALJ must have the record at

the hearing that precedes that determination. See 20 C.F.R. § 416.920. The record




                                            11
             Case: 19-11787     Date Filed: 11/19/2019    Page: 12 of 16


also indicates that a full hearing occurred in May 2017, and the record shows that

all of the evidence submitted prior to that hearing was added into the record.

      Similarly without merit is Reeves’s claim that the ALJ violated Article III by

requiring her to undergo consultative examinations by Dr. Schwartz and an

unnamed chiropractor. Reeves has waived that claim by failing to first present it to

the district court in any of her filings below, even when those filings are liberally

construed. See Chandler, 695 F.3d at 1198 n.2; Timson v. Sampson, 518 F.3d 870,

874 (11th Cir. 2008) (noting that we liberally construe pro se filings). Further, the

SSA is an executive-branch agency; thus, its actions, proper or not, cannot violate

Article III. See U.S. Const. art. III, § 1 (vesting the judicial power of the United

States in the U.S. Supreme Court and inferior courts established by Congress); 42

U.S.C. § 901(a) (establishing the SSA as an independent agency within the

executive branch). Even if Reeves’s claim is construed as asserting that the ALJ

erroneously referred her to Dr. Schwartz and a chiropractor for consultative

examinations, the ALJ was authorized to make those referrals, 20 C.F.R. §

416.912(b)(2). Also, nothing in the record suggests, nor has Reeves asserted, that

Dr. Schwartz and the unnamed chiropractor were unqualified within the meaning

of the regulations governing consultative examination. Id. § 416.919g(b). Lastly,

although Reeves claims to have submitted two letters indicating that the

consultative medical examinations were unnecessary, she has not indicated the


                                          12
             Case: 19-11787     Date Filed: 11/19/2019   Page: 13 of 16


source or contents of those letters, nor has she shown that those letters would have

precluded the ordering of the examinations where the ALJ felt that they were

necessary to make a determination on her DIB claim. Id. § 416.919a(b).

      The ALJ also did not err by failing to provide Dr. Schwartz with Reeves’s

complete medical records because the ALJ was only required to provide Dr.

Schwartz with the background information necessary to conduct the RFC exam for

which he was consulted. The record shows that Dr. Schwartz was tasked with

performing an RFC examination, which focuses on an applicant’s current physical

capabilities, rather than an applicant’s history of impairments. Because Dr.

Schwartz did not require Reeves’s full medical history to establish her RFC at the

time of the examination, the ALJ was not required to provide Dr. Schwartz with

her complete medical records. 20 C.F.R. § 416.917. To the extent that Reeves’s

claim is construed as asserting that the ALJ failed to provide Dr. Baltazar with her

medical records, that claim is not supported by the record, since Dr. Baltazar’s

May 2015 RFC assessment references multiple pieces of medical evidence in the

record.

      Finally, Reeves has waived her claim that the ALJ improperly relied on

evidence that was “fruit of the poisonous tree, illegally obtained with a disregard to

Social Security’s own laws,” rather than the evidence that she submitted. Reeves

has not indicated what that allegedly improper evidence was, she has failed to


                                          13
               Case: 19-11787       Date Filed: 11/19/2019       Page: 14 of 16


indicate what laws the ALJ violated in relying on that evidence, and her single

reference to that “poisonous” evidence is insufficient to preserve it for review. See

Timson, 518 F.3d at 874; Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681

(11th Cir. 2014) (recognizing that a party can abandon a claim or issue when they

only make “passing references to it” in the “statement of the case”’ or “summary

of the argument”). 1

B. Whether the ALJ Failed to Consider All of Reeves’s Physical Impairments

       Reeves also argues that the ALJ disregarded most of her physical conditions

when he did not find that she suffered from multiple impairments within the

meaning of 20 C.F.R. § 404.1523. An individual claiming Social Security

disability benefits must prove that she is disabled. See Moore v. Barnhart, 405

F.3d 1208, 1211 (11th Cir. 2005). The ALJ uses a five-step, sequential evaluation

process to determine whether a claimant is disabled. Winschel v. Comm’r of Soc.

Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). This process includes an analysis of

whether the claimant: (1) is unable to engage in substantial gainful activity; (2) has

a severe and medically-determinable impairment; (3) has an impairment, or

combination thereof, that meets or equals a Listing, and meets the duration


1
  We note that Reeves also makes cursory and unsupported claims that the district court failed to
grant her motion for an expedited judgment, improperly disregarded the medical opinion that had
been submitted to the court, and relied on an illegal and incomplete record. However, because
she has failed to support these assertions with citations to legal authority or evidence in the
record, her passing statements to those issues amounts to a waiver of those claims. See Sapuppo,
739 F.3d at 682; Timson, 518 F.3d at 874.
                                               14
             Case: 19-11787    Date Filed: 11/19/2019   Page: 15 of 16


requirement; (4) can perform past relevant work, in light of his RFC; and (5) can

make an adjustment to other work, in light of his RFC, age, education, and work

experience. See id.; 20 C.F.R. § 404.1520(a)(4). If an ALJ finds a claimant

disabled or not disabled at any given step, the ALJ does not proceed to the next

step. 20 C.F.R. § 404.1520(a)(4).

      At step three, the ALJ must determine whether any of the applicant’s

impairments meets or equals an impairment contained in the Listings, or, if none of

the applicant’s individual impairments constitutes a listed impairment, whether the

combination of the applicant’s impairments is medically equal to a listed

impairment. Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002). The

ALJ’s statement that an applicant’s impairments or combination thereof do not

meet or equal a listed impairment constitutes evidence that the ALJ considered the

combined effect of the applicant’s impairments. Id.

      Here, the ALJ did not fail to consider whether Reeves’s impairments met or

equaled a listed impairment because the ALJ’s decision shows that he considered

the combined effect of her impairments. First, the ALJ’s decision noted that he

was required to consider whether any one of her severe impairments or

combination thereof met or medically equaled one of the impairments contained in

the Listings, which is evidence that he considered the cumulative effect of

Reeves’s impairments. Id. Further, in assessing Reeves’s RFC, the ALJ indicated


                                         15
              Case: 19-11787     Date Filed: 11/19/2019   Page: 16 of 16


that he had “considered all symptoms and the extent to which these symptoms can

reasonably be accepted as consistent with the objective medical evidence and other

evidence,” which shows that he considered all of Reeves’s impairments relative to

the medical record. Finally, Reeves points to no evidence that suggests that the

ALJ failed to fulfill his obligations at step three.

      AFFIRMED.




                                           16
