              Case: 13-14020   Date Filed: 02/07/2014   Page: 1 of 8


                                                            [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-14020
                            Non-Argument Calendar
                          ________________________

                       D.C. Docket No. 1:12-cv-00195-GRJ



ALFRED TOWNSEND,

Plaintiff-Appellant,

                                      versus

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

                          ________________________

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

                               (February 7, 2014)

Before WILSON, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
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      Alfred Townsend appeals the magistrate judge’s order affirming the Social

Security Administration’s denial of disability benefits. On appeal, Townsend

claims (1) that the Administrative Law Judge (ALJ) insufficiently developed the

record to determine whether Townsend could perform his past relevant work by

failing to ask enough questions related to his residual functional capacity (RFC)

and (2) that the ALJ’s failure to sufficiently inquire into Townsend’s physical

limitations was “overtly prejudicial.” After careful review, we reject both claims

and affirm.

      Prior to filing for disability benefits, Townsend had been hospitalized

several times in a nearly two year period for a severe injury to his right eye, for

pain and infections in his right foot, and for pain in his back and knee. Multiple

physicians completed RFC evaluations of Townsend, and the physicians’

conclusions varied to some extent. The most favorable portions of each report,

from Townsend’s perspective, indicate that he could at least: frequently lift ten

pounds and occasionally lift twenty pounds; sit and stand for six hours in an eight

hour work day; frequently climb, kneel, crouch, and crawl; and occasionally stoop

and balance. They further found that he had no manipulative, communicative, or

environmental limitations except that he should avoid concentrated exposure to

hazards such as working at significant heights. Finally, the physicians concluded

that he had severely limited vision in his right eye and hypertension and diabetes.


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      At the administrative hearing before the ALJ, Townsend confirmed that he

could lift twenty pounds, but not often. Townsend also stated that his vision was

poor, that he had pain in his mouth stemming from the same incident that injured

his eye, tendinitis in his knee, and chronic back pain. When the ALJ followed up

by asking what treatment he received for this pain, Townsend’s non-attorney

representative who had been questioning Townsend stated: “Your Honor, I’m—

I’m not sure if the—if the Claimant would be able to offer any additional helpful

testimony.” Townsend and his representative stated that he was disabled based on

the loss of vision in his right eye, the above-described physical impairments, and

chronic pain.

      At the time of his hearing before the ALJ, Townsend was in his mid-fifties

and had most recently worked at a carwash where he answered the phone and

washed cars. The vocational expert at the hearing classified this job as medium

work, which someone with Townsend’s limitations, as described in multiple RFC

evaluations, could perform. Townsend offered no evidence to contradict the RFC

evaluations performed by the physicians but merely claimed that he was disabled

based on the limitations described above. Faced with conflicting conclusions

about Townsend’s ability to perform past relevant work, the ALJ found the

physicians’ RFC evaluations to be more credible than Townsend’s self-assessment.

In particular, the ALJ placed significant weight on: (1) objective medical evidence


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that Townsend was able to perform medium work; (2) physicians’ reports of

callousing on Townsend’s extremities, which were inconsistent with the

disabilities he alleged but consistent with the ability to perform medium work; and

(3) Townsend’s poor work history, which weakened his credibility.

      Ultimately, the ALJ concluded that although Townsend suffered from

several severe impairments, his RFC permitted him to perform medium work,

including his past relevant work at the carwash. In any event, Townsend had

certainly not met his burden of proving the contrary. Accordingly, the ALJ denied

benefits. Townsend challenges this finding because the ALJ did not ask enough

questions about Townsend’s impairments to fully and fairly develop the record.

Specifically, Townsend complains that the ALJ only asked about his ability to lift

but not his ability to sit, stand, or walk—all of which would be necessary to

perform his previous work. This, Townsend claims, was overtly prejudicial.

      We have held that the ALJ has the “duty to develop the record fully and

fairly.” Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999) (per curiam).

Claimants have a statutory right to counsel at hearings before an ALJ, and where

the right has not been waived, the ALJ’s “obligation to develop a full and fair

record rises to a special duty.” Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.

1997) (per curiam). But even in cases involving this special duty, “a showing of

prejudice must be made before we will find that a hearing violated claimant’s


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rights of due process and requires a remand to the Secretary for reconsideration.”

Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985) (per curiam).

      Prejudice “at least requires a showing that the ALJ did not have all of the

relevant evidence before him in the record (which would include relevant

testimony from claimant), or that the ALJ did not consider all of the evidence in

the record in reaching his decision.” Id. at 1540. In determining whether sufficient

prejudice exists to warrant remand, “[t]he court should be guided by whether the

record reveals evidentiary gaps which result in unfairness or ‘clear prejudice.’”

Graham, 129 F.3d at 1423.

      In Brown v. Shalala, we found prejudice based on the ALJ’s failure to obtain

records which were the subject of testimony, to acquire a report which he stated he

would review, and to question an available witness when the claimant herself was

unable to explain how her disabilities prevented her from working. 44 F.3d 931,

935–36 (11th Cir. 1995) (per curiam). By contrast, in Kelley, we held that no

prejudice resulted when there was no suggestion that the record was incomplete or

inadequate and claimant’s assertion that he would have benefitted from a more

extensive hearing was speculative. 761 F.2d at 1540–41. Similarly, in Graham,

“the record as a whole [was] neither incomplete nor inadequate. Instead, the

record was sufficient for the ALJ to evaluate Graham’s impairments and functional

ability, and [did] not show the kind of gaps in the evidence necessary to


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demonstrate prejudice.” 129 F.3d at 1423. The ALJ extensively questioned

Graham, Graham was able to offer helpful explanations, the ALJ thoroughly

examined Graham’s medical history, and the ALJ’s opinion thoroughly compared

symptoms and limitations with functional requirements for previous work. Id.

      Here, Townsend has not demonstrated that the record is insufficient. In

Wilson, the record, “which included the opinions of several physicians . . . , was

sufficient for a decision and additional expert testimony was unnecessary.” 179

F.3d 1276, 1278. The record here also includes the opinions of several physicians,

and in Wilson, we found that even additional expert testimony was unnecessary.

Townsend claims the ALJ should have questioned him further. But if additional

expert testimony is unnecessary in the face of multiple physicians’ opinions,

additional lay testimony from a witness the ALJ has already concluded lacks

credibility would be even less necessary.

      Even if we assume the record was insufficient, however, Townsend has not

shown prejudice from the ALJ’s decision not to ask Townsend about his ability to

sit, stand, and walk. To the extent that Townsend is basing his “overt prejudice”

claim on Graham, which recognized that extensive questioning undermines a claim

of prejudice, Townsend misunderstands that case. In Graham, the ALJ found

questioning to be helpful, as claimant was able to provide useful information.

Here, by contrast, Townsend presumably would have asserted a more limited


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ability to work than the physicians’ RFC reports—though he does not even assert

this point on appeal. But the ALJ clearly found Townsend’s bare assertions of his

disability to be less credible than multiple physicians’ reports. Therefore, to the

extent questioning was less extensive than in Graham, it was brief because it

would not have been helpful or credible, and even now, Townsend has not

suggested what more the ALJ might have learned from further questioning. In

fact, Townsend’s representative stated that he had no further helpful testimony.

      Not only was further testimony from Townsend unlikely to help his cause,

but unlike in Brown, there is no suggestion that other available witnesses would

have helped Townsend’s case. In fact, the opposite is true, as the physicians would

have provided evidence undermining Townsend’s claim, had they been called to

testify. It was unnecessary to call them because their reports were available to the

ALJ. Therefore, the ALJ had all the relevant evidence before him such that there

were no evidentiary gaps when he made his decision. And while the ALJ did not

extensively question Townsend, Townsend had nothing else to offer. Just as in

Graham and Kelley, we find no prejudice here because the ALJ reviewed the

relevant medical information and prepared a thorough opinion explaining how

Townsend could perform his past relevant work despite his symptoms.

      In short, the record was sufficiently developed, and even if it was not, no

prejudice resulted from any deficiencies that may have existed.


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AFFIRMED.




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