                                                                      [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-12351         ELEVENTH CIRCUIT
                                   Non-Argument Calendar     DECEMBER 8, 2010
                                 ________________________        JOHN LEY
                                                                  CLERK
                              D.C. Docket No. 2:09-cv-01672-IPJ

L.R.M.,
by and through her mother and
next friend, Nettie McCracklin,

lllllllllllllllllllll                                             Plaintiff–Appellant,

                                            versus

SOCIAL SECURITY ADMINISTRATION,
COMMISSIONER,

                                                     llllllllllllllllllDefendant–Appellee.

                                 ________________________

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

                                      (December 8, 2010)

Before BLACK, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
      L.R.M., a young woman with borderline intellectual functioning, appeals

from an order affirming the Social Security Administration’s denial of her

application for supplemental social security income (SSI) benefits. L.R.M.’s

appeal raises three issues. First, whether substantial evidence supports the

administrative law judge’s (ALJ’s) decision to deny L.R.M. benefits. Second,

whether the ALJ failed to give appropriate consideration to an examining

psychologist’s opinion. And finally, whether the ALJ failed to fully and fairly

develop the administrative record.

                                          I.

      When L.R.M. applied for SSI benefits, she was 19 years old and lived at

home with her mother and three younger brothers. L.R.M. had an IQ of 65 and

had not completed high school. The only job she had ever held (putting tags on

clothes) lasted just three days. Because she believed that her daughter was

disabled, L.R.M.’s mother had her apply for SSI benefits.

      To establish that she has a disability that entitles her to SSI benefits, L.R.M.

has to show that she has an impairment that prevents her from performing

substantial gainful activity for 12 months or more. 42 U.S.C. § 1382c. The Social

Security Administration uses a five-step analysis to determine whether a claimant

is disabled. 20 C.F.R. § 416.920. The agency first considers the applicant’s work

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history. If the applicant is not gainfully employed, the agency determines the

severity of her impairment. If the impairment is severe, the agency determines

whether it also qualifies as an impairment listed in the social security regulations.

If it does, the agency considers the applicant’s “residual functioning capacity” and

whether she can still perform “past relevant work.” Id. Finally, if the applicant

cannot perform past relevant work, the agency considers whether she can adjust to

other work. To establish disability, the claimant must meet all of these criteria.

      Here, the ALJ found that L.R.M. did not have any past relevant work history

and that her borderline intellectual functioning qualified as a severe impairment.

But because L.R.M. did not establish that she had a listed impairment, the ALJ

determined she did not qualify for SSI benefits.

                                          II.

      We review an agency’s decision to determine whether it was supported by

substantial evidence. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).

Substantial evidence is that which a reasonable person would take as sufficient to

support a conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). It is

more than a scintilla but need not be a preponderance. Dyer, 395 F.3d at 1210.

      L.R.M. argues that the ALJ’s decision was not supported by substantial

evidence because her short-term-memory impairment satisfies the listing criteria.

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She also argues that she meets the listing criteria because she suffers from marked

restrictions in daily living, social functioning, and maintaining concentration,

persistence or pace. We disagree.

      Because L.R.M.’s IQ was above 59 but below 70, to have a listed

impairment she would need to have an additional limitation to qualify for SSI

benefits. One such limitation would be a physical or mental impairment that

imposed an additional and significant work-related limitation or function. 20

C.F.R. pt. 404, subpt. P, Appx. 1, § 12.05(c). Another would be marked

restrictions in at least two of the following areas: daily-living activities; social

functioning; maintaining concentration, persistence or pace. Id. § 12.05(d).

      First, although L.R.M. argues that her short-term-memory problem qualifies

as an additional mental impairment, the psychologist’s report indicates that her

memory problems are related to her borderline intellectual functioning. Because

the evidence suggests that her memory problems are not a discrete, additional

impairment, the ALJ’s finding that L.R.M. did not meet § 12.05(c)’s requirements

is supported by substantial evidence, and may not be disturbed.

      The ALJ’s finding that L.R.M. did not meet § 12.05(d)’s requirements is

likewise supported by substantial evidence. L.R.M.’s evaluation indicated that she

had only moderate restrictions in daily living, social functioning, and maintaining

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concentration, persistence or pace. Furthermore, at the hearing L.R.M. testified

that she can prepare sandwiches and that she dresses herself. And although she

testified that she does not have any friends, she did say that she spends time

socializing with family members and that she occasionally speaks with her sister

on the telephone. She also said that she enjoys braiding other people’s hair.

Additional evidence showed that she could follow her doctor’s orders and that she

sought medical care of her own accord. Her mother even testified that she could

follow simple, spoken instructions. This evidence is sufficient to support the

ALJ’s conclusion that L.R.M. had only moderate restrictions in daily living, social

functioning, and maintaining concentration, persistence or pace.1

       L.R.M. also argues that the ALJ erred by failing to give controlling weight

to the opinion of John Neville, the consultative psychologist who examined her.

But this argument is misplaced as the ALJ wrote in his report that he gave “great

weight to the opinion[] of Dr. Neville.” In any event, Neville’s opinion was that

L.R.M. did not have a listed impairment.

       Lastly, L.R.M. argues that the ALJ failed to fully and fairly develop the


       1
          Because the ALJ’s conclusion that L.R.M. did not have a listed impairment is
supported by substantial evidence, and L.R.M.’s failure to satisfy that criterion means she is not
entitled SSI benefits, we need not address L.R.M.’s argument that she was not allowed to pose a
fair hypothetical to the agency’s vocational expert. That issue would only be relevant had
L.R.M. met all of the other criteria necessary to qualify for SSI benefits.

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administrative record by not calling for further medical review. An ALJ has a

duty to ensure that a full and fair record is developed. Ellison v. Barnhart, 355

F.3d 1272, 1276 (11th Cir. 2003). To determine whether an ALJ has fulfilled this

duty, we look for evidentiary gaps in the record that result in unfairness or clear

prejudice. Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997).

      Here, we first note that L.R.M. underwent a consultative examination. The

conclusions from Neville’s examination are consistent with both L.R.M.’s and her

mother’s testimony, and L.R.M. does not elaborate on how the record was

insufficient without a second examination. And because L.R.M. did not allege a

physical impairment, and there is no evidence in the record that L.R.M. was

physically impaired, there was no need to order a physical examination. Given our

inability to identify any evidentiary gaps in the record, much less any gaps that

resulted in unfairness or clear prejudice, we cannot say that the ALJ did not

sufficiently develop the administrative record.

      The district court’s order is AFFIRMED.




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