United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE JUDGE
THE COURT is the Report and Recommendation of the
Magistrate Judge (Dkt. 20), recommending that the decision of
the Commissioner denying Plaintiffs claim for social security
benefits be affirmed. Plaintiff objected (Dkt, 21), to which
the Commissioner responded (Dkt. 23).
district court may accept, reject, or modify a magistrate
judge's report and recommendation. 28 U.S.C. §
636(b)(1). Those portions of the report and recommendation to
which objection is made are accorded de novo review.
28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).
de novo review of the findings to which objections
are made, and a review of the findings to which objection is
not made for plain error, I agree with the Magistrate Judge
that the Appeals Council did not err by denying Plaintiffs
request for review. Accordingly, the objections are
overruled, the Report and Recommendation is adopted, and the
Commissioner's decision is affirmed.
rather than objecting to specific findings or conclusions in
the Report and Recommendation, argues that "[d]ue
process, in its fundamental fairness aspect, requires a
remand for payment, under these circumstances." (Dkt. 21
at 3). Plaintiff was 46 years old on the alleged disability
onset date. At the time the ALJ issued a decision on January
26, 2016, Plaintiff was 49 years old. At the time the Appeals
Council issued its decision denying review, on December 21,
2016, Plaintiff was 6 days shy of his 50th birthday.
Plaintiff contends that if the Appeals Council considered his
age at the time of its decision, he would have been found
disabled under the Medical Vocational Guidelines. And, he
argues that requiring him to reapply for benefits, rather
than remanding for payment beginning on his 50th birthday
"would be a waste of time and money." (Dkt. 21 at
decision of the ALJ is reviewed to determine whether the
correct legal standards were applied, Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997), and if the
"ALJ's conclusion as a whole was supported by
substantial evidence in the record." Dyer v.
Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (citation
omitted). Substantial evidence is "more than a scintilla
and is such relevant evidence as a reasonable person would
accept as adequate to support a conclusion."
Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011)(citation and internal quotation
omitted). The reviewing court '"may not decide the
facts anew, reweigh the evidence, or substitute [its]
judgment for that of the Commissioner.'"
Mitchell v. Comm'r, Soc. Sec.., 771 F.3d 780,
782 (11th Cir. 2014) (quoting Winschel, 631 F.3d at
1178). Legal conclusions, however, are reviewed de novo.
Ingram v. Comm'r of Soc. Sec, 496 F.3d 1253, 1260
(11th Cir. 2007). When the Appeals Council denies review of
the ALJ's decision, "the decision of the ALJ becomes
the final decision of the Secretary." Falge v.
Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998).
does not object to the Magistrate Judge's findings
regarding the Appeals Council's denial of review.
Instead, he raises a new due process argument contending that
there may be a 2 year delay in approval of benefits if he
reapplies. And, he contends that "[d]ue process, in its
fundamental fairness aspect, requires a remand for payment,
under these circumstances." (Dkt. 21 at 3).
process requires only an opportunity to be heard 'at a
meaningful time and in a meaningful manner.'"
Cherry v. Heckler, 760 F.2d 1186, 1190 (11th Cir.
1985) (quoting Mathews v. Eldridge, 424 U.S. 319,
333 (1976)). A claimant who seeks to reopen a decision is
afforded due process where he "was represented by
counsel at an administrative hearing and had the opportunity
to present all information relevant to the reopening
decision, as well as the right to appeal."
Cherry, 760 F.2d at 1190-91; see Costigan v.
Comm'r, Soc. Sec. Admin., 603 Fed.Appx. 783, 788
(11th Cir. 2015) (claimant, who was represented by counsel
and took advantage of appeals process, did not have due
process rights violated even though "she was found to be
not disabled as of August 3, 2009 in an order by the ALJ
dated July 26, 2011, but a later decision by the Commissioner
found that she was disabled as of July 27, 2011").
has not shown that he was deprived of an opportunity to be
heard at a meaningful time and in a meaningful manner.
See Mathews, 424 U.S. at 333; Cherry, 760
F.2d at 1190-91; Costigan, 603 Fed.Appx. at 788,
And, to the extent he is raising a due process claim for a
future event, he fails to provide authority to support his
contention that his due process rights can be violated for a
claim he has not made.
Objections are OVERRULED. The Report and
Recommendation (Dkt. 20) is APPROVED and
ADOPTED for all purposes, including
appellate review. The decision of the Commissioner is
AFFIRMED. The Clerk is directed to
ENTER JUDGMENT in ...