[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-11238

Non-Argument Calendar

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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.

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Appeal from the United States District Court

for the Northern District of Florida

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(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 workrelated 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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