Belinda A. Garrett v. Commissioner, Social Security Administration

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11749
Non-Argument Calendar
____________________
BELINDA A. GARRETT,
Plaintiff-Appellant,
versus
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-05076-WMR
____________________
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2 Opinion of the Court 21-11749
Before J ILL PRYOR , LAGOA , and BRASHER , Circuit Judges.
PER CURIAM:
Belinda Garrett appeals the district court’s order affirming
the Commissioner of the Social Security Administration’s (“SSA”)
denial of Disability Insurance Benefits (“DIB”). On appeal, Garrett
argues first that the administrative law judge (“ALJ”) did not re-
view the substantial medical documentation that she submitted, as
well as the large number of her conditions. Second, she argues that
the ALJ exhibited implied and racial bias against her. For the rea-
sons stated below, we affirm.
I.
On October 15, 2013, Garrett filed an application for DIB,
stating that her disability began on March 15, 2011. In a disability
report submitted with her application, Garrett explained that her
disabilities consisted of the following: a torn rotator cuff, diabetes,
high blood pressure, asthma (chronic), a back injury (chronic
pain/edema legs & feet), carpal tunnel syndrome (both
hands/swelling/weakness), degenerative arthritis/bulging disc
(walk with cane), peripheral neuropathy, kidney disease, heart
murmur (chronic fatigue syndrome), and diabetic background neu-
ropathy (blurred vision).
On March 7, 2014, Garrett’s application for DIB was denied,
and on October 17, 2014, it was again denied after she moved for
reconsideration of the initial denial. Garrett requested a hearing
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21-11749 Opinion of the Court 3
before an ALJ, who held a hearing on May 16, 2016. Before Garrett
and a vocational expert, Allan Billehus, testified, the ALJ accepted
into evidence, without objection from Garrett, the entire adminis-
trative record until then and Garrett’s medical records. Garrett
also waived her right to be represented by counsel and proceeded
pro se. Following the introduction of the record evidence, Garrett
testified about her employment and education history, her living
situation, her medical issues, and gave examples of how normal ac-
tivities were difficult due to her conditions. Billehus, the vocational
expert, testified that, under various hypotheticals, someone in Gar-
rett’s position could work in the national economy.
On September 30, 2016, the ALJ found that Garrett was not
disabled. On October 2, 2017, the Appeals Council (“AC”) granted
Garret’s request for review and remanded the case to the ALJ be-
cause the ALJ’s decision failed to sufficiently address the issue of
transferability of skills and failed to obtain testimony from the vo-
cational expert as to whether any vocational adjustment would be
required for Garrett to perform the specific jobs identified in the
decision.
The ALJ then held a second hearing on March 1, 2018, at
which Garrett again waived her right to counsel and proceeded
pro
se. Before taking testimony, the ALJ noted that the entire admin-
istrative record until then and Garrett’s medical records were part
of the evidentiary record. Garrett reiterated her prior testimony
and testified that, since the previous hearing, she had received
treatment for depression, treatment for her leg and was diagnosed
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4 Opinion of the Court 21-11749
with abdominal wall cellulitis. Another vocational expert, Valerie
Allen, testified that Garrett could perform her past work of being
an administrative assistant and that Garrett could perform this job
with the use of a cane and without needing to drive at night. The
expert also testified that the administrative assistant position would
not be available if Garrett could not read small print, no job in the
national economy would be available if Garrett needed to elevate
her legs above her waist for 15% of the day, and no job would be
available if Garrett needed multiple fifteen-minute breaks through-
out the workday to use a breathing machine due to asthma.
Following the second hearing, the ALJ denied Garrett’s re-
quest for DIB. In doing so, the ALJ conducted the five-step analysis
in determining whether Garrett was disabled. At step one, the ALJ
found that Garrett had not been engaged in substantial gainful ac-
tivity since her alleged onset date of March 15, 2011, through her
date last insured of December 31, 2017. At step two, the ALJ found
that Garrett had severe impairments that significantly limited her
ability to perform basic work activities consisting of: osteoarthritis
of the bilateral knees, obesity, adhesive capsulitis of the right shoul-
der, bilateral carpal tunnel syndrome, diabetes mellitus, diabetic
macular edema, asthma, degenerative joint disease of the lumbar
spine, peripheral neuropathy, and cataracts. The ALJ noted that
she considered the medical documentation submitted on Garrett’s
claim of congestive heart failure, including the opinion of Garrett’s
general physician, Dr. Faye Riley, but the ALJ found that the sup-
porting evidence did not show it as a severe impairment and noted
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21-11749 Opinion of the Court 5
that Dr. Riley was not a cardiologist nor a specialist. At step three,
the ALJ found that Garrett’s impairments did not meet or medi-
cally equal the severity requirements of the relevant regulations.
At step four, the ALJ, stating that she had considered the en-
tire record, found that Garrett’s residual functional capacity
(“RFC”) was to perform sedentary work as defined in 20 CFR
§ 404.1567(a), except that: (1) she could not climb ladders, ropes, or
scaffolds, but was able to sometimes climb ramps and stairs; (2) she
could not crawl, but was able to sometimes balance, stoop, kneel,
and crouch; (3) she was limited to frequent handling and fingering
bilaterally; (4) she was limited to frequent pushing and pulling with
the lower extremities; (5) she should avoid concentrated exposure
to dust, fumes, and pulmonary irritants, as well as extreme temper-
atures, humidity, and hazards such as moving machinery and un-
protected heights; (6) she should not engage in tasks requiring
night driving as part of the job duties; and (7) she required a cane
for ambulation. In her analysis, the ALJ noted that Garrett failed
to provide evidence to support the severity of most of her claimed
impairments and that the evidence was inconsistent with some of
her claims. At the final step, the ALJ found that Garrett would be
able to perform her past work as an administrative assistant be-
cause that work did not require the performance of work-related
activities precluded by the RFC. Accordingly, the ALJ found that
Garrett was not disabled.
Garrett subsequently appealed the denial of DIB to the AC.
The AC denied her request for review.
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6 Opinion of the Court 21-11749
Garrett then filed a complaint in the district court, request-
ing that the court review the Commissioner’s denial of DIB. The
Commissioner filed an answer denying liability and asserting vari-
ous defenses.
Garrett then filed a memorandum in support of disability.
Garrett claimed that the ALJ denied her application for DIB based
on personal bias, listing various examples of the ALJ’s alleged bias
against her. Garrett also listed and described each of her many
claimed impairments, listed the medications she was taking, and
provided examples of how her impairments impacted her everyday
life. She claimed that the ALJ misrepresented the facts about her
depression and erred in discounting the diagnosis from Dr. Riley
concerning her congestive heart failure. And she asked the district
court to grant a favorable decision in the form of DIB, as well as
additional pain and suffering damages because she would have
been able to receive specialized care had her application for DIB
been granted earlier. Garrett attached over 140 pages of medical
records to her memorandum, some of which were not in the rec-
ord; the Commissioner later moved to strike the supplementation
of these new records.
The Commissioner responded in opposition, arguing that
Garrett’s allegations of the ALJ’s bias lacked foundation in the rec-
ord and were not the type of conduct that showed bias. The Com-
missioner also argued that Garrett failed to demonstrate any error
with respect to the ALJ’s treatment of the vocational expert’s testi-
mony and that substantial evidence supported the ALJ’s evaluation
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21-11749 Opinion of the Court 7
of the evidence regarding her various conditions. And the Com-
missioner argued that Garrett failed to show disability beyond all
doubt, so if the district court did find that the ALJ’s decision was
not supported by substantial evidence or that the ALJ did not fol-
low the applicable legal standards, it should reverse and remand
instead of granting DIB.
A magistrate judge issued a report and recommendation
(“R&R”) recommending affirmance of the Commissioner’s deci-
sion. The magistrate judge noted that Garrett failed to comply
with his scheduling order and that her brief failed to se forth spe-
cific claims of error or citations to the record. Nonetheless, the
magistrate judge liberally construed her brief and considered the
arguments he could discern from the brief. The magistrate judge
rejected her arguments that the ALJ had not properly determined
all of her severe impairments and did not consider her impairments
in combination. The magistrate judge noted that the ALJ had
found for Garrett at step two, that substantial evidence supported
the ALJ’s finding that Garrett’s alleged depression was not a severe,
medically determinable impairment, and that the ALJ’s decision
demonstrated that she considered Garrett’s impairments in combi-
nation. The magistrate judge found that substantial evidence sup-
ported the ALJ’s RFC assessment, including her consideration of
Dr. Riley’s opinion, and the ALJ’s evaluation of Garrett’s subjective
complaints. The magistrate judge also found that the ALJ properly
relied on the vocational expert’s testimony. And the magistrate
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8 Opinion of the Court 21-11749
judge recommended rejecting Garrett’s arguments that the ALJ
and Commissioner were biased against her.
The district court then issued an order adopting the R&R
after a de novo review of the record, denying the Commissioner’s
motion to strike, and affirming the Commissioner’s denial of DIB.
This timely appeal ensued.
II.
“In Social Security appeals, we review de novo the legal prin-
ciples upon which the Commissioner's decision is based. How-
ever, we review the resulting decision only to determine whether
it is supported by substantial evidence.”
Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir. 2005). “Substantial evidence is less than
a preponderance, but rather such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.”
Id. In
doing so, we do not reweigh the evidence, decide facts anew, or
make credibility findings.
Winschel v. Comm’r of Soc. Sec., 631
F.3d 1176, 1178 (11th Cir. 2011).
We generally will not consider on appeal arguments not
raised before the administrative agency or the district court.
Kelley
v. Apfel, 185 F.3d 1211, 1215 (11th Cir. 1999). “Issues raised in a
perfunctory manner, without supporting arguments and citation
to authorities, are generally deemed to be waived.”
NLRB v.
McClain of Ga., Inc., 138 F.3d 1418, 1422 (11th Cir. 1998).
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21-11749 Opinion of the Court 9
III.
On appeal, Garrett argues that the decision to deny her
claim for DIB should be reevaluated because the ALJ did not re-
view the substantial medical documentation of her conditions nor
consider the “overwhelming number of conditions” she suffers.
She also argues that the ALJ who reviewed her case evaluated her
claim with implied and racial bias. In response, the Commissioner
argues that: (1) Garrett’s argument as to the number of conditions
she has was not raised in the district court below, nor adequately
briefed to us in her brief to this Court, and is waived; (2) her argu-
ment that the documentation in the record proved her impair-
ments caused her limitations that resulted in an inability to work
was waived because she failed to adequately brief the issue; and (3)
she failed to prove that the ALJ and Commissioner were biased
against her.
As an initial matter, we conclude that Garrett has waived her
arguments that the ALJ did not review the medical documentation
she submitted nor the number of conditions she suffers. Garrett
failed to make these arguments below,
Kelley, 185 F.3d at 1215, and
only raised them in a perfunctory manner on appeal, without sup-
porting authorities, arguments, and record citations,
McClain, 138
F.3d at 1422.
We now turn to Garrett’s bias-related argument. “The ALJ
plays a crucial role in the disability review process,” and “[t]he im-
partiality of the ALJ is thus integral to the integrity of the system.”
Miles v. Chater, 84 F.3d 1397, 1401 (11th Cir. 1996). A presumption
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10 Opinion of the Court 21-11749
exists that judicial and quasi-judicial officers, such as ALJs, are un-
biased.
See Schweiker v. McClure, 456 U.S. 188, 195 (1982). The
claimant may rebut this presumption by a showing of conflict of
interest or some other specific reason for disqualification, but gen-
eralized assumptions are insufficient.
Id. at 195–96. The party as-
serting a disqualifying interest bears the ultimate burden of estab-
lishing that interest.
Id. at 196. To be disqualifying, the alleged bias
must stem from extrajudicial sources, and the opinion on the mer-
its must be based on something other than what was learned from
the case.
United States v. Grinnell Corp., 384 U.S. 563, 583 (1966).
We conclude that Garrett failed to show that the ALJ or
Commissioner was biased in handling her case. Indeed, Garrett, in
her brief, only offers bare assertions that the ALJ was implicitly and
racially biased against her without pointing to any specific instances
of bias in her case. And below, the magistrate judge found that
Garrett had failed to provided any record evidence to support her
allegations of bias by the ALJ. Therefore, Garrett’s argument fails.
* * * *
Accordingly, we affirm the district court’s order.
AFFIRMED.
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