                                                          [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 10-11146                ELEVENTH CIRCUIT
                           Non-Argument Calendar              JANUARY 4, 2011
                         ________________________               JOHN LEY
                                                                 CLERK
                  D.C. Docket No. 3:09-cv-00068-MCR-EMT

FREDDIE MCCREA, JR.,

                                                             Plaintiff-Appellant,

                                    versus

MICHAEL J. ASTRUE,
Commissioner of Social Security,

                                                           Defendant-Appellee.

                         ________________________

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

                               (January 4, 2011)

Before EDMONDSON, HULL and PRYOR, Circuit Judges.

PER CURIAM:

      Freddie McCrea, Jr. appeals the district court’s order affirming the
Commissioner’s denial of his application for Supplemental Security Income (“SSI”)

benefits. After review, we reverse and remand for additional proceedings consistent

with this opinion.1

       A claimant for SSI benefits must prove he is disabled. 20 C.F.R. § 416.912.

The Social Security regulations provide a five-step evaluation process for determining

whether a claimant is disabled. 20 C.F.R. § 416.945(a). The Administrative Law

Judge (“ALJ”) must evaluate (1) whether the claimant engaged in substantial gainful

activity; (2) whether the claimant has a severe impairment; (3) whether the severe

impairment meets or equals an impairment in the Listing of Impairments; (4) whether

the claimant has the residual functional capacity (“RFC”) to perform his past relevant

work;2 and (5) whether, in light of the claimant’s RFC, age, education and work

experience, there are other jobs the claimant can perform. 20 C.F.R. § 416.920(a)(4);

see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004).

       Here, the ALJ determined at steps one through three that McCrea had not



       1
        We review the Commissioner’s decision to determine whether it is supported by
substantial evidence and applies the correct legal standards. Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1158 (11th Cir. 2004). “Substantial evidence is more than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id.
(quotation marks omitted). Determining whether a remand is necessary is a de novo proceeding.
Smith v. Bowen, 792 F.2d 1547, 1550 (11th Cir. 1986).
       2
        RFC is the most a claimant can do despite any physical or mental limitations caused by
the impairment and its related symptoms. 20 C.F.R. § 416.945(a)(1).

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engaged in substantial gainful activity since September 26, 2005, and had these

severe impairments that did not meet or equal a listed impairment: polysubstance

abuse; a history of bladder cancer–post resection with urostomy placement and

residual right testicular pain; hypertension; depressive disorder; and estimated

borderline intellectual functioning. At step four, the ALJ concluded that McCrea had

the RFC to perform his past relevant work as a janitor and, thus, was not disabled.

A.       Past Relevant Work

         On appeal, the Commissioner concedes that the ALJ’s finding that McCrea

could return to his past relevant work is not supported by substantial evidence.3 We

agree.

         At step four, a claimant will be found not disabled if he can return to his past

relevant work. 20 C.F.R. § 416.920(a)(4)(iv). Past relevant work is work: (1) that

the claimant performed within the last fifteen years, (2) that lasted long enough for

the claimant to learn how to do the work, and (3) that was performed at the level of

substantial gainful activity. 20 C.F.R. 416.965(a). Substantial gainful activity is

work that “involves doing significant physical or mental activities” that is done “for

pay or profit.” 20 C.F.R. § 416.972(a)-(b).


         3
        The Commissioner initially raised this issue in a motion to remand. This Court denied
the motion to remand so that McCrea’s claim that the ALJ showed bias, which we discuss infra,
could be addressed.

                                              3
      In evaluating whether the claimant’s past work is substantial gainful activity,

the ALJ’s “primary consideration will be the earnings [the claimant] derive[d] from

the work activity.” 20 C.F.R. § 416.974(a)(1). Under the regulations’ earnings

guidelines, a claimant’s earnings (in 2001 and each year thereafter) ordinarily will

show that he engaged in substantial gainful activity if the earnings were more than

the previous year or the average monthly earnings were more than $700, adjusted for

changes in the national average wage index. See 20 C.F.R. § 416.974(b)(2)(i)-(ii),

see also id. § 416.974a (explaining that to determine whether a claimant is doing

substantial gainful activity, the ALJ will average monthly earnings).

      Here, it is not clear from McCrea’s testimony or the disability reports how long

McCrea worked as a janitor between 1990 and 2005 (the fifteen-year period before

he filed his application) or how much he earned from this work. McCrea testified that

he (1) performed janitorial services “off and on since 1974”; (2) was incarcerated

from 1987 to 2003, during which time he built wheelchairs; and (3) worked as a

janitor in Pensacola in 2004. During the hearing, the ALJ did not question McCrea

to determine the exact nature of his janitorial work. Additionally, McCrea earned

approximately $5,000 ($416 per month) in 2004, less than the $700 average monthly

earnings needed to constitute substantial gainful activity for that year. Accordingly,

the ALJ did not have the information needed to determine whether McCrea’s prior

                                          4
work as a janitor qualified as substantial gainful activity and thus was past relevant

work that McCrea could perform.

       The ALJ has an obligation to develop a full and fair record. Graham v. Apfel,

129 F.3d 1420, 1422 (11th Cir. 1997). Remand for further development of the record

is appropriate when there are evidentiary gaps that result in prejudice. Brown v.

Shalala, 44 F.3d 931, 935 (11th Cir. 1995). Given that the record lacks substantial

evidence to support the ALJ’s finding that McCrea could perform past relevant work

as a janitor, remand is appropriate. See 42 U.S.C. § 405(g); Jackson v. Chater, 99

F.3d 1086, 1092 (11th Cir. 1996) (explaining that a “remand to develop a full and fair

record in accordance with law is a sentence-four remand”).

B.     McCrea’s Bias Allegations

       McCrea contends our remand should be with instructions to assign the case to

a different ALJ because the original ALJ allegedly demonstrated bias during the

hearing. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (explaining that

a claimant is entitled to an impartial ALJ); 20 C.F.R. § 404.940 (disqualifying an ALJ

who “is prejudiced or partial with respect to any party or has any interest in the matter

pending for decision”).4 As evidence of bias, McCrea points to statements the ALJ


       4
        The Commissioner argues that McCrea waived his bias claim by failing to object to the
magistrate judge’s report and recommendation (“R&R”) that concluded McCrea’s bias claim
lacked merit. Where, as here, the appellant failed to object to an R&R, we review the findings of

                                                5
made during the hearing as to the effect of drug use on a claimant’s eligibility for

benefits. Specifically, the ALJ noted that the treating physician’s notes indicated that

McCrea had tested positive for cocaine and marijuana. After McCrea admitted he had

used “dope” three weeks earlier to treat his pain, the ALJ stated that claimants who

use drugs are not eligible for benefits and that he would not consider McCrea’s

mental impairments because they were caused by drug use.

       The Commissioner concedes that the ALJ misstated the law as to the evaluation

of evidence of drug addiction. Under 42 U.S.C. § 423(d)(2)(C) and its implementing

regulations, only after the ALJ determines that a claimant is disabled and finds

medical evidence of drug addiction does the ALJ “‘determine whether . . . drug

addiction . . . is a contributing factor material to the determination of disability.’”

Doughty v. Apfel, 245 F.3d 1274, 1279 (11th Cir. 2001) (quoting 20 C.F.R.

§ 404.1535). The “key factor” in this “‘materiality determination’” is “whether the

claimant would still be found disabled if he stopped using drugs or alcohol.” Id.; see

also 20 C.F.R. § 404.1535(b)(1).

       However, the ALJ’s misstatements do not show that the ALJ was biased

against McCrea such that he did not receive a full and fair hearing. First, during the


fact only for plain error or manifest injustice, but still review the legal conclusions de novo. See
United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988); United States v. Warren, 687 F.2d
347, 348 (11th Cir. 1982).

                                                  6
hearing, despite these misstatements, the ALJ did not focus exclusively on McCrea’s

drug use and allowed McCrea to testify about his mental impairments, mainly his

depression, in addition to his physical impairments. Second, the ALJ did not repeat

these misstatements in his written opinion. Indeed, the ALJ’s written opinion

summarized the evidence of McCrea’s mental impairments, determined that McCrea’s

substance abuse, depression and borderline intellectual functioning were serious

impairments, gave substantial weight to a doctor’s mental residual functional capacity

assessment and included McCrea’s limitations due to his mental impairments in the

RFC finding. Finally, because the ALJ concluded, at step four, that McCrea was not

disabled, the ALJ did not reach the “materiality determination” of § 423(d)(2)(C),

which occurs only if the ALJ concludes a claimant is disabled. For this reason, the

ALJ’s written opinion had no reason to consider the effect of McCrea’s drug use on

his eligibility for benefits.

       Accordingly, we reverse the district court’s judgment and remand the case with

instructions that it be returned to the Commissioner for further development of the

record.

       REVERSED AND REMANDED.




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