Maria Mendez v. Commissioner of Social Security

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 27, 2021
• Docket: 20-14026
• Status: Unpublished

Opinion

USCA11 Case: 20-14026 Date Filed: 07/27/2021 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-14026 Non-Argument Calendar ________________________

D.C. Docket No. 8:19-cv-00713-AEP

MARIA MENDEZ,

Plaintiff-Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

________________________

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

(July 27, 2021)

Before JILL PRYOR, LUCK and DUBINA, Circuit Judges.

PER CURIAM: USCA11 Case: 20-14026 Date Filed: 07/27/2021 Page: 2 of 9

Appellant Maria Mendez appeals the district court’s affirmance of the

Commissioner of Social Security Administration’s (“SSA”) decision denying her

claim for a period of disability, disability insurance benefits (“DIB”), and

supplemental security income (“SSI”), pursuant to 42 U.S.C. §§ 405(g) and

1383(c)(3). Mendez argues that the administrative law judge (“ALJ”) violated the

law-of-the-case doctrine and the mandate rule in his 2017 decision by

reconsidering a prior finding of her residual functional capacity (“RFC”) after

remand from the district court in Mendez’s appeal from the denial of her claim by

another ALJ in 2013. She asserts that the remand order implicitly adopted the

findings from the prior 2013 decision and did not allow the ALJ to reconsider the

RFC finding. Based on our review of the record, and after reading the parties’

briefs, we affirm the district court’s order affirming the Commissioner’s ruling.

I.

In August 2011, Mendez applied for a period of disability, DIB, and SSI,

alleging that her disability began on December 31, 2007. After conducting a

hearing, the ALJ determined that Mendez was not disabled (“2013 decision”). The

Appeals Council denied review of the ALJ’s 2013 decision. In 2015, Mendez filed

another application for DIB and SSI, again alleging that her disability began on

December 31, 2007.

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Mendez filed suit in federal district court, and in July 2016, a magistrate

judge reversed and remanded the Commissioner’s decision (the “remand order”).

The magistrate judge determined that the ALJ failed to account for all of Mendez’s

impairments when posing the hypothetical to the vocational expert (“VE”), which

required remand because the hypothetical was incomplete. In November 2016, the

Appeals Council issued an order vacating the final decision of the Commissioner

and remanding the case to the ALJ. The Appeals Council directed the ALJ to

consolidate Mendez’s 2011 claim and her 2015 claim and to issue a new decision

on the consolidated claims. It also directed the ALJ to offer Mendez the

opportunity for a hearing, to take any further action needed to complete the

administrative record, and to issue a new decision.

After a hearing, the ALJ issued a decision in September 2017 in which he

denied relief because he found that Mendez was not disabled. In relevant part, the

ALJ found that Mendez had a RFC that enabled her to perform the full range of

medium work. The ALJ found that Mendez was able to perform past relevant

work as a harvest worker, so she was not disabled and was ineligible for benefits.

The Appeals Council declined to review the 2017 decision. Mendez filed the

present complaint in federal court seeking review of the Commissioner’s decision

affirming the ALJ’s 2017 decision, specifically asserting that the ALJ violated the

law-of-the-case doctrine and the mandate rule by reconsidering the RFC finding.

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The magistrate judge affirmed the Commissioner’s final decision, finding

particularly that in the previous appeal, the only issue presented to the district court

was whether the hypothetical to the VE was sufficient. As such, the magistrate

judge found that the remand order did not explicitly or implicitly make any

findings regarding Mendez’s RFC, so the ALJ did not violate the law of the case or

the mandate rule in the 2017 decision. In addition, the magistrate judge found that

the Appeals Council had vacated the 2013 decision and that the ALJ acted

consistently with the order from the Appeals Council. Finally, the magistrate

judge found that, to the extent that Mendez challenged the basis for the RFC

finding, substantial evidence supported the 2017 decision. Mendez timely

appealed.

II.

We review de novo the legal principles upon which the ALJ’s decision is

based, but the ALJ’s factual findings are conclusive if supported by substantial

evidence. Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1358 (11th Cir.

2018). We also review de novo whether the ALJ has complied with a remand

order, see Sullivan v. Hudson, 490 U.S. 877, 885-86, 109 S. Ct. 2248, 2254-55

(1989), the extent to which the law-of-the-case doctrine applies, Transamerica

Leasing, Inc. v. Inst. of London Underwriters, 430 F.3d 1326, 1331 (11th Cir.

2005), and whether a mandate has been complied with, Cambridge Univ. Press v.

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Albert, 906 F.3d 1290, 1298 (11th Cir. 2018). We have applied the harmless error

standard to Social Security appeals. See Diorio v. Heckler, 721 F.2d 726, 728

(11th Cir. 1983).

Eligibility for DIB and SSI requires that the claimant be disabled. 42 U.S.C.

§§ 423(a)(1)(E), 1382(a)(1). A claimant is disabled if she is unable to engage in

substantial gainful activity by reason of a medically determinable impairment that

can be expected to result in death or which has lasted or can be expected to last for

a continuous period of at least 12 months. 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A). 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 requirement; (4) can

perform past relevant work, in light of her RFC; and (5) can make an adjustment to

other work, in light of her RFC, age, education, and work experience. See id.;

20 C.F.R. § 404.1520(a)(4).

At step four of the sequential evaluation, the ALJ assesses the applicant’s

RFC and past relevant work to determine whether the applicant can return to her

former work. 20 C.F.R. § 404.1520(a)(4)(iv). An RFC determination is an

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assessment, based on all the relevant evidence, of a claimant’s remaining ability to

do work despite her impairments. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th

Cir. 1997). This includes considering a claimant’s medically determinable

impairments, regardless of whether an impairment was found to be non-severe at

an earlier step. 20 C.F.R. § 404.1545(a)(1), (2). The Commissioner has a limited

burden at step five to show that a significant number of jobs exist that a claimant

can perform. Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The Commissioner can

utilize the testimony of a VE to meet this burden of showing that the claimant can

perform other jobs. Id. § 416.966(e).

Following a federal court remand, the ALJ may consider any issues relating

to the claim, regardless of whether they were raised in earlier administrative

proceedings. 20 C.F.R. §§ 404.983, 416.1483. An ALJ may take any additional

action that is “not inconsistent” with the Appeals Council’s order implementing the

district court’s remand order. See id. §§ 404.977(b), 416.1477(b). We have

determined that different ALJs may weigh the same evidence differently, and

“there is no inconsistency in finding that two successive ALJ decisions are

supported by substantial evidence even when those decisions reach opposing

conclusions.” Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 822 (11th Cir.

2015).

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Under the law-of-the-case doctrine, an appellate court’s findings of fact and

conclusions of law are generally binding in all subsequent proceedings in the same

case in the trial court or on a later appeal. This That & the Other Gift & Tobacco,

Inc. v. Cobb Cnty., 439 F.3d 1275, 1283 (11th Cir. 2006). The mandate rule,

which is a specific application of the law of the case, binds a lower court to execute

the mandate of the higher court without examination or variance. Cambridge

Univ. Press, 906 F.3d at 1299. A court “may not alter, amend, or examine the

mandate, or give any further relief or review, but must enter an order in strict

compliance with the mandate.” Piambino v. Bailey, 757 F.2d 1112, 1119 (11th

Cir. 1985). The law-of-the-case doctrine and the mandate rule do not extend to

issues that the appellate court did not explicitly or implicitly address. Id. at 1120.

III.

Assuming without deciding that the law-of-the-case doctrine and the

mandate rule apply in the SSA context, see Maxwell v. Comm’r of Soc. Sec., 778 F.

App’x 800, 802 n.1 (11th Cir. 2019) (assuming that the doctrines apply but

determining that the ALJ did not exceed the scope of the remand order by

reconsidering a claimant’s manipulation abilities because the remand order did not

make an express or implied finding regarding those abilities), we conclude that the

ALJ did not err because there was no law of the case regarding Mendez’s RFC.

The record demonstrates that in her previous appeal, Mendez argued only that the

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ALJ provided an incomplete hypothetical to the VE, which is part of step five, so

the remand order did not implicitly or explicitly adopt the prior RFC findings,

which is part of step four. Additionally, because the 2013 decision was vacated by

the Appeals Council, it no longer has any legal effect. See United States v. Sigma

Int’l, Inc., 300 F.3d 1278, 1280 (11th Cir. 2002) (stating that vacated decisions

“are officially gone” and “have no legal effect whatever”). Thus, the previous

RFC finding did not bind the ALJ after remand.

In issuing the 2017 decision, the ALJ complied with the relevant regulations

regarding remand because the ALJ did not take any actions inconsistent with the

remand order or the Appeals Council’s order. The Appeals Council ordered the

ALJ to allow Mendez to have another hearing and submit new evidence, which the

ALJ did. Neither the remand order nor the Appeals Council’s order prohibited the

ALJ from revisiting the prior findings, so the fact that the ALJ did so is not

inconsistent with those orders.

Finally, even if the ALJ mischaracterized the remand order when he stated

that the remand order found that the 2013 decision lacked clarity as to Mendez’s

ability to stand, any error was harmless. In the 2017 decision, the ALJ did not state

that the remand order required him to reconsider Mendez’s ability to stand, and

there is no indication that this mischaracterization affected the RFC finding

because the ALJ cited record evidence in explaining his finding that Mendez had

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no standing limitations. Accordingly, based on the aforementioned reasons, we

affirm the district court’s order affirming the Commissioner’s decision denying

Mendez’s claim for a period of disability, DIB, and SSI.

AFFIRMED.1

1 Mendez did not raise before the district court whether substantial evidence supports the Commissioner’s decision, and on appeal, she makes at most only a passing reference to substantial evidence. Thus, she has abandoned that claim. See Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) (explaining that we need not address an issue the claimant failed to raise in the district court); Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (explaining that an appellant abandons an issue that she fails to raise in her appellate brief, which can occur when she mentions the argument only through passing reference).