Case: 16-11238      Date Filed: 12/16/2016   Page: 1 of 5


                                                             [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-11238
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 1:14-cv-00243-MP-GRJ



SHEILA COOLEY,
o.b.o. Royce Cooley, Deceased,

                                                                Plaintiff-Appellant,

                                       versus



COMMISSIONER OF SOCIAL SECURITY,
Acting Commissioner of the Social Security Administration,

                                                               Defendant-Appellee.

                         ________________________

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

                              (December 16, 2016)
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Before MARCUS, WILLIAM PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Sheila Cooley, on behalf of her deceased husband, Royce Cooley, appeals an

order that affirmed the denial of Royce’s application for disability insurance

benefits. See 42 U.S.C. § 405(g). Cooley argues that Royce qualified as

intellectually disabled under Listing 12.05. See 20 C.F.R. pt. 404, app. 1, § 12.05.

The Commissioner of Social Security argues that Cooley waived her argument by

failing to object to the magistrate judge’s report and recommendation. We affirm.

      In July 2010, an administrative law judge denied Royce’s third application

for benefits. Although Royce died before the Appeals Council denied his request

for review, his widow, Cooley, filed a complaint against the agency. The parties

consented to have the action decided by a magistrate judge, and Cooley succeeded

in having the decision of the agency reversed and the case remanded to evaluate

whether Royce qualified for benefits under Listing 12.05.

      On remand, the administrative law judge again denied Royce benefits. The

administrative law judge ruled that Royce did not qualify as intellectually disabled

because he did not have a listed impairment nor any “deficits in adaptive

functioning,” see id., and, in the alternative, because he did not have “a physical or

other mental impairment imposing an additional and significant work-related

limitation of function” in addition to his verbal intelligence quotient test score of


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69, see id. § 12.05(C). The administrative law judge found that Royce had

performed semi-skilled work for about two decades without accommodation; he

was able to follow directions; and he continued to cook, shop, ride his bike, drive,

wash clothes, maintain his personal hygiene, and support himself by working odd

jobs. Cooley did not request review by the Appeals Council and filed another

complaint against the agency.

      The district court affirmed the ruling of the agency based on the magistrate

judge’s recommendation. The magistrate judge determined that Royce had failed to

qualify as intellectually disabled under Listing 12.05. That Royce did not have

deficits in adaptive functioning, the magistrate judge determined, was supported by

substantial evidence of his employment history, his testimony regarding his

ongoing personal activities, and the reports of examining physician Lance Chodosh

that Royce functioned independently and of psychologist Carmen Tozzo-Julian

that Royce was a good candidate for vocational counseling. The magistrate judge

rejected the argument that Royce was entitled to a conclusive presumption of

disability because he did not have a listed impairment like the applicant in Ambers

v. Heckler, 736 F.2d 1467, 1470 (11th Cir. 1984), and because there was

substantial evidence that he did not have deficits in adaptive functioning. And the

magistrate judge stated that Cooley “had not challenged” the “ALJ’s alternate

[ruling], that even if [Royce] did exhibit deficits in adaptive functioning, [he] did


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not meet the ‘paragraph C’ criteria of listing 12.05 because [he] did not have a

physical or other mental impairment imposing an additional and significant work-

related limitation of function.”

      Cooley argues on appeal that Royce qualified for disability benefits under

paragraph C of Listing 12.05, but she has waived that argument. The magistrate

judge warned the parties that, unless they filed “[o]bjections to the[] proposed

findings and recommendations . . . within fourteen (14) days after being served a

copy,” they “waive[d] the right to challenge on appeal the district court’s order

based on the unobjected-to factual and legal conclusions.” Cooley disregarded that

warning. Because Cooley “fail[ed] to [file an] object[ion,] . . . [she] waive[d] the

right to challenge on appeal the district court’s order” that adopted the report and

recommendation. See 11th Cir. R. 3-1; see also Advanced Estimating Sys., Inc. v.

Riney, 130 F.3d 996, 998 (11th Cir. 1997) (“attorney error based on a

misunderstanding of the law [is] an insufficient basis for excusing a failure to

comply with” a procedural rule). Cooley failed to object to the magistrate judge’s

determination that she “had not challenged” the ruling of the agency that Royce did

not satisfy the criteria in Listing 12.05(C) and that she had failed to request review

of that ruling by the Appeals Council. As a general rule, we do not consider

arguments that have not been fairly presented to a respective agency or to the

district court. See Kelley v. Apfel, 185 F.3d 1211, 1215 (11th Cir. 1999) (treating as


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waived a challenge to the administrative law judge’s reliance on the testimony of a

vocational expert that was “not raise[d] . . . before the administrative agency or the

district court”). We deem waived Cooley’s argument that her deceased husband

qualified for benefits under Listing 12.05(C).

      We AFFIRM the denial of Cooley’s application for benefits.




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