[DO NOT PUBLISH]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 Com missioner of the Social Security Administration, Defendant

- Appellee.

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

________________________ ( December 16, 2016 ) Case: 16-11238 Date Filed: 12/16/2016 Page: 1 of 52 Before MARCUS , WILLIAM PRYOR and FAY , Circuit Judges.
PER CURIAM: Sheila Cooley, on behalf of her deceased husband , Royce Cooley, appeals an order that affirm ed the de nial of Royce’s application for disability insuran ce 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 argue s that Cooley waived her argument by failing to object to the magistrate judge’s report and recommendation. W e 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 r eversed 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 , ” s ee id. , and , in the alternative, because h e 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

Case: 16-11238 Date Filed: 12/16/2016 Page: 2 of 53 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 wo rking odd jobs

. Cooley did not request review by the Appeals Council and file d a nother complaint against the agency . The district court affirmed the ruling of the agency based on the magistrate judge’s recommendation

. The magistra te judge determined that Royce had failed to qualify as intellectually disabled under Listing 12.05. T hat Royce did not have deficits in adaptive functioning , the magistrate judge determined, was supported by substantial evidence o f hi s employment history , his testimony regarding his ongoing personal activities , a nd 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 magist rate 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 , 7 3 6 F.2d 1467 , 1470 (11 th Cir. 1984), and because there was substantial evidence that he did not have deficits in adaptive functioning. And t he magistrate judge stat ed that Cooley “had not challenged” the “ ALJ’s alternate [ruling], that even if [ Royce ] did exhibit deficits in adaptive functioning, [ he ] did

Case: 16-11238 Date Filed: 12/16/2016 Page: 3 of 54 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 f or disability benefits under paragraph C of Listing 12.05 , but she has waived th at argument

. The magistrate judge warn ed 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 11 th Cir. R. 3

- 1 ; see also Advanced Estimating Sys., Inc. v. Riney , 130 F.3d 996, 998 (11th Cir. 1997) (“a ttorney error based on a misunderstanding of the law [is] an ins ufficient 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” t he 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. S ee Kelley v. Apfel , 185 F.3d 1211, 1215 ( 11th Cir. 1999) (treating as

Case: 16-11238 Date Filed: 12/16/2016 Page: 4 of 55 waived a challenge to the administrative law judge’s reliance on the testimony of a vocational expert th at was “not raise [d] . . . before the administrative agency or the
district court ” ). We deem waived Cooley’s argument that her deceased husband qualifi ed for benefits under Listing 12.05(C).
We AFFIRM the denial of Cooley’s application for benefits. Case: 16-11238 Date Filed: 12/16/2016 Page: 5 of 5