FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 8, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-10147

Non-Argument Calendar

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D. C. Docket No. 08-80042-CV-FJL

ANTHONY GEORGE,

Plaintiff-Appellant,

versus

MICHAEL J. ASTRUE,

Commissioner, Social Security Administration,

U.S. ATTORNEY GENERAL,

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(July 8, 2009)

Before BIRCH, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Anthony George appeals from the district court’s order affirming the

administrative law judge’s (“ALJ”) denial of his application for disability
insurance benefits and supplemental security income (“SSI”) benefits, 42 U.S.C.

§§ 405(g) and 1383(c)(3). The ALJ who conducted George’s hearing went on

extended military leave, and a new ALJ issued an opinion in George’s case without

holding a new hearing. On appeal, George argues that: (1) the second ALJ did not

comply with the Hearings, Appeals, and Litigation Law Manual (“HALLEX”)

because he did not hold a new hearing and did not state whether he took the fact

that George’s credibility and demeanor could be a significant factor in deciding the

case into consideration before determining that a new hearing was unnecessary;

and (2) the ALJ did not develop a full and fair record because it did not request

records from Jackson Memorial Hospital or subpoena records from the Florida

Department of Corrections (“FL DOC”). After careful review, we affirm.

“Judicial review of the administrative decision [determining social security

benefits] is limited to a determination of whether the findings of the Secretary are

supported by substantial evidence.” Ford v. Secretary of Health and Human

Services, 659 F.2d 66, 68 (5th Cir. Unit B 1981). “However, the administrative

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decision is not supported by substantial evidence if the administrative law judge

does not have before him sufficient facts on which to make an informed decision.”

 See Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982) (adopting all post- 1

September 30, 1981 decisions of Unit B of the former Fifth Circuit as binding precedent in the

Eleventh Circuit).

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Id. at 69. Although we have not stated a precise standard of review for the ALJ’s

decision regarding holding a new hearing or developing a record, we need not

decide which standard of review to apply, as we discern no error here under even a

de novo standard of review. Cf. United States v. Arbolaez, 450 F.3d 1283, 1293

(11th Cir. 2006).

First, we reject George’s claim that the second ALJ did not comply with the

HALLEX. Under HALLEX, when an ALJ who conducted a hearing in a case

becomes unavailable, the ALJ to whom the case is reassigned reviews the record to

determine whether a new hearing is required. HALLEX § I-2-8-40. The new ALJ

reviews the entire record, including the audio recording of the hearing, and “[i]f the

ALJ is prepared to issue a fully favorable decision, another hearing would not be

necessary,” but “[i]f the ALJ is prepared to issue a less than fully favorable

decision, another hearing may be necessary. For example, another hearing would

be necessary if . . . the claimant alleges disabling pain, and the ALJ believes the

claimant’s credibility and demeanor could be a significant factor in deciding the

case.” Id. In Shave v. Apfel, 238 F.3d 592, 596-97 (5th Cir. 2001), the Fifth

Circuit addressed this specific HALLEX provision, and found that a second

hearing was not required in that case because the ALJ’s rejection of the claimant’s

credibility was based not on his demeanor or a factor that could be observed in a

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live hearing, but on a combination of medical evidence and the conflict between

his hearing testimony and his previous characterization of his condition.

Here, even if we assume that § I-2-8-40 of HALLEX carries the force of law

-- a very big assumption -- the ALJ did not violate it because the provision does

not mandate a new hearing any time the ALJ is not prepared to accept the

claimant’s allegations. See HALLEX § I-2-8-40 (“[i]f the ALJ is prepared to issue

a less than fully favorable decision, another hearing may be necessary” (emphasis

added)). Nor does the plain language of HALLEX § I-2-8-40 require that the ALJ

make a specific finding as to the claimant’s demeanor. See HALLEX § I-2-8-40.

In this case, the ALJ did not make any findings concerning George’s demeanor,

but rested the credibility determination on the fact that his statements concerning

the intensity, persistence, and limiting effects of such symptoms were not entirely

credible when compared with the objective medical evidence on the record. Thus,

the ALJ’s decision was based on evidence from the existing record and the

transcript from the hearing, and a second hearing would not have added in any

meaningful way to the record. Accordingly, the ALJ did not err by failing to hold

a new hearing. See Shave, 238 F.3d at 596-97.

We also find no merit in George’s claim that the ALJ did not develop a full

and fair record. We recognize that regardless of whether a claimant is represented

by counsel, the ALJ “has a duty to develop a full and fair record.” Brown v.

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Shalala, 44 F.3d 931, 934 (11th Cir. 1995). Nonetheless, we have indicated that

“there must be a showing of prejudice before we will find that the claimant’s right

to due process has been violated to such a degree that the case must be remanded to

the Secretary for further development of the record.” Id. at 935. Before ordering a

remand, we will review the administrative record as a whole to determine if it is

inadequate or incomplete or “show[s] the kind of gaps in the evidence necessary to

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

Even assuming that the ALJ erred by failing to obtain records from Jackson

Memorial Hospital or the FL DOC, George must show that he was prejudiced by

this failure. See Brown, 44 F.3d at 935. But George makes no allegation of

prejudice. He does not argue that the records from Jackson Memorial Hospital

contain any evidence that would have been pertinent to the ALJ’s decision, and he

specifically testified that since being incarcerated he had not received any medical

treatment except a physical. Accordingly, the ALJ did not err in basing his

decision on the original record in this case.

AFFIRMED.

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