[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-10850

Non-Argument Calendar

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D.C. Docket No. 1:14-cv-00053-MP-CAS

KATIE M. MOSLEY, 

 Plaintiff–Appellant,

 versus

ACTING COMMISSIONER OF SOCIAL 

SECURITY ADMINISTRATION, 

 Defendant–Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Florida

________________________

(December 8, 2015)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Appellant Katie Mosley appeals the district court’s order affirming the 

Administrative Law Judge’s (“ALJ”) denial of her application for supplemental 

security income and disability insurance benefits. Before the ALJ, Mosley had 

alleged only physical impairments in support of her claim for disability. The ALJ 

determined that she was not disabled based on these alleged physical impairments. 

Mosley does not challenge this determination by the ALJ. Instead, she argues that 

the ALJ failed to fully and fairly develop the record regarding a potential 

impairment that she never alleged: Mosley’s potential mental impairment

stemming from a low intelligence quotient (“I.Q.”). After careful review, we 

affirm. 

I. BACKGROUND

In April 2011, Mosley filed an application for disability insurance benefits 

and supplemental security income with the Social Security Administration. 

Alleging a disability onset date of April 15, 2009, Mosley represented that she was 

disabled and unable to work because she suffers from asthma, arthritis, diabetes, 

high blood pressure, and issues with her back, knees, and hands. She contended 

that these physical impairments prevented her from working because her knees 

ached all of the time and she was frequently out of a breath, which prevented her 

from being able to walk more than three blocks or climb more than two steps 

without resting. She further indicated that if she sat for too long, it hurt to stand up 

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and that she also had problems with her breathing when sitting. Mosley did not 

allege any mental impairments. 

The Commissioner of Social Security (the “Commissioner”) denied 

Mosley’s application for benefits. At a subsequent hearing before the ALJ in 

September 2012, the ALJ heard testimony from Mosley and a vocational expert. 

Mosley testified that she dropped out of school after finishing the eighth grade and 

had not participated in any additional training or achieved her GED. She had last 

worked as a hotel housekeeper but was fired after she was caught sitting and eating 

during her shift. She reads the Bible and other books and could write in paragraph

form. However, she has experienced trouble making change from a $20 bill. She 

has never obtained a driver’s license and uses public transportation to get around. 

Notably, Mosley’s counsel questioned her about her physical limitations, but asked 

no questions regarding any alleged mental limitations. 

Following the hearing, the ALJ issued a decision, concluding that Mosley 

was not disabled for purposes of eligibility for disability benefits or supplemental 

security income. Specifically, upon review of the record evidence, the ALJ found 

that Mosley suffered from diabetes, arthritis, hypertension, asthma, obesity, and 

disorders of the spine, hips, and knees, but determined that these impairments did 

not meet or equal any of the listed impairments in the Social Security 

Administration regulations. The ALJ further determined that Mosley could 

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perform light work with a sit/stand option and with restrictions on activities such as 

avoiding heights, the operation of heavy machinery, and the use of hand or foot 

controls on a sustained, regular basis. Based on this finding, coupled with the 

vocational expert’s opinion that a significant number of jobs accommodating 

Mosley’s limitations existed in the national economy, the ALJ concluded that 

Mosley was not disabled. The Appeals Counsel denied Mosley’s request for 

review. 

In April 2014, Mosley filed a complaint in the district court challenging the 

denial of disability benefits and supplemental security income. She requested a 

remand, arguing that the ALJ should have inquired into—and fully developed the 

record regarding—her I.Q., in light of record evidence showing that she failed to 

complete middle school, had not earned a GED, had never learned to drive, had 

never earned at a substantial gainful activity level, and was unable to make change

from a $20 bill. 

A magistrate judge issued a report and recommendation (“R&R”), 

recommending that the denial of disability benefits and supplemental security 

income should be affirmed. The magistrate judge noted that there was no evidence 

in the record showing that Mosley had been diagnosed with mental retardation or 

an intellectual disability nor had Mosley raised this issue before the ALJ. 

Moreover, the record did not contain any evidence that Mosley had a significantly 

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sub-average I.Q., or that her failure to finish school or obtain a driver’s license was 

the result of a mental impairment. Based on this record, the magistrate judge 

concluded that she could not demonstrate prejudice from the failure to develop the 

record on this claim and there was no need to remand for a determination of 

Mosley’s I.Q. Over Mosley’s objections, the district court adopted the R&R and 

affirmed the Commissioner’s decision denying benefits. This appeal followed. 

II. DISCUSSION

We review de novo the legal principles that underlie the Commissioner’s 

decision in Social Security cases, including a claim that the ALJ failed to fully and 

fairly develop the record. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 

2005); see Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); Brown v. 

Shalala, 44 F.3d 931, 934–36 (11th Cir. 1995). 

In determining whether a claimant has proven that she is disabled, the ALJ 

must complete a five-step sequential evaluation process. Jones v. Apfel, 190 F.3d 

1224, 1228 (11th Cir. 1999). The claimant has the burden to prove that (1) she 

“has not engaged in substantial gainful activity,” (2) she “has a severe impairment 

or combination of impairments,” and (3) her “impairment or combination of 

impairments meets or equals a listed impairment” such that she is entitled to an 

automatic finding of disability. Id. If the claimant is not able to meet or equal the 

criteria for a listed impairment, she must proceed to the fourth step, which requires 

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showing that she is unable to do her past relevant work. Id. “At the fifth step, the 

burden shifts to the Commissioner to determine if there is other work available in 

significant numbers in the national economy that the claimant is able to perform.” 

Id. If the Commissioner demonstrates that there are jobs that the claimant can 

perform, the claimant must show that she is unable to perform those jobs in order 

to establish that she is disabled. Id.

In completing this five-step process, the ALJ has a duty to develop a full and 

fair record, regardless of whether the claimant is represented by counsel. Cowart 

v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). If a claimant is not represented 

by counsel, the ALJ has a duty to “scrupulously and conscientiously probe into, 

inquire of, and explore for all the relevant facts.” Brown, 44 F.3d at 934–35

(quotations omitted). “Nevertheless, the claimant bears the burden of proving that 

[s]he is disabled, and, consequently, [s]he is responsible for producing evidence in 

support of [her] claim.” Ellison, 355 F.3d at 1276.

The ALJ’s failure to fulfill his duty to fully develop the record, however, 

only necessitates a remand if “the record reveals evidentiary gaps which result in 

unfairness or clear prejudice.” Brown, 44 F.3d at 935 (quotations omitted). In 

other words, “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 [ALJ] for further development of the record.” Id. 

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

Here, Mosley has not shown that the ALJ failed to fully and fairly develop 

the record as to whether she had a mental impairment. The record shows that the 

ALJ thoroughly inquired into the facts and circumstances related to the claims 

Mosley presented to him. Though represented by counsel throughout the 

proceedings, Mosley did not list any mental impairment or intellectual functioning 

issues in her applications for supplemental security income and disability insurance 

benefits. In fact, she stated in her disability report that she had not seen a doctor 

for any mental conditions, including learning or emotional issues. Finally, during 

her hearing testimony she asserted no intellectual or mental impairment that would 

prevent her from working. 

Likewise, the medical records considered by the ALJ neither identified any 

mental health diagnoses nor offered any suggestion that Mosley’s treating 

physicians believed she had limited intellectual functioning. In fact, Mosley

denied any impairments or barriers to learning on several intake forms. 

Furthermore, because Mosley was represented by counsel, the ALJ did not have a

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heightened duty to probe into all relevant facts surrounding her disability claim.

1

 

See Ellison, 355 F.3d at 1276; Brown, 44 F.3d at 934–35.

We are also not persuaded by Mosley’s argument that the ALJ should have 

engaged in additional inquiry regarding whether she had a mental impairment

given her educational history, lack of a driver’s license, and inability to work at a

substantial gainful activity level. Mosley’s school transcripts gave no indication 

that she attended special education classes, and she never indicated that she left 

school as a result of intellectual difficulties. She also testified that she read the 

Bible, could read other books, and could write in paragraph form. Her testimony 

did not provide any indication that her lack of a driver’s license was caused by a 

mental impairment or intellectual difficulties. Additionally, the ALJ implicitly 

found that Mosley had previously earned at the substantial gainful activity level by 

determining that her job as a hotel housekeeper was past relevant work, and 

Mosley does not challenge that finding on appeal. See 20 C.F.R. § 404.1560(b)(1) 

(“Past relevant work is work that you have done within the past 15 years, that was 

 1

 Citing the Supreme Court’s decision in Sims v. Apfel, 530 U.S. 103 (2000), Mosley argues that 

Sims expanded the ALJ’s duty to fully and fairly develop the record. We disagree. In Sims, the 

Supreme Court addressed the requirement of issue exhaustion in Social Security proceedings and 

ultimately concluded that a claimant did not waive an issue that he failed to specifically include 

in his request for review to the Appeals Council. 530 U.S. at 106, 112. In reaching this 

conclusion, the Supreme Court explained that Social Security proceedings were inquisitorial, 

rather than adversarial, and that the ALJ had a duty to investigate the facts and develop

arguments for and against granting benefits. Id. at 110-11 (citing Richardson v. Perales, 402 

U.S. 389, 400-01 (1971)). Albeit the Court restated the long-standing principle regarding the 

ALJ’s duty to fully develop the record, the extent of that duty was not an issue before the Court. 

Accordingly, Sims did not impose on an ALJ any heightened duty, as Mosley argues.

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substantial gainful activity . . . .”); see also Allstate Ins. Co. v. Swann, 27 F.3d 

1539, 1542 (11th Cir. 1994) (noting that issues not briefed on appeal are 

abandoned). Given that there was nothing in the record to alert the ALJ to the 

possibility that Mosley is mentally impaired, the ALJ did not fail to develop the 

record as it pertains to Mosley’s alleged mental impairments. Ellison, 355 F.3d at 

1276 (stating that the claimant bears the ultimate burden of establishing that she 

has a disability). 

In any event, even if we agreed that the ALJ had failed to fully develop the 

record regarding her alleged mental impairments, Mosley has not established clear 

prejudice that necessitates remand. See Brown, 44 F.3d at 935. Section 12.05(C) 

of the listing of impairments sets out the criteria for establishing an intellectual 

disability: (1) a “significantly subaverage general intellectual functioning with 

deficits in adaptive functioning” with an onset before age 22; (2) a “valid verbal, 

performance, or full scale IQ of 60 through 70”; and (3) “a physical or other 

mental impairment imposing an additional and significant work-related limitation 

of function.” See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05(C). 

Mosley suggests on appeal that the record evidence indicates that she has an 

intellectual disability because, if tested, her I.Q. is likely to be 70 or below and she 

has deficits in adaptive functioning. Yet, Mosley offers nothing other than her own 

speculation that her I.Q. might be below 70. Further, the record evidence relating 

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to Mosley’s daily activities and behavior does not suggest that she has the requisite

deficits in adaptive functioning.2

 Her testimony indicated that she was capable of 

taking care of herself (that is, dressing and bathing herself) and doing housework, 

including laundry, cooking, washing dishes, making beds, vacuuming, and taking 

out the trash. While Mosley did not have a driver’s license, she was able to use 

public transportation to go from place to place. As to her educational record, there 

was no indication that she attended special education classes or that she dropped 

out of school (in the eighth grade) because of intellectual difficulties. Finally, her 

intellectual capacity was sufficient to allow her to maintain employment as a hotel 

housekeeper for six years, only to be fired for sitting down and eating on the job. 

In short, the ALJ considered and assessed the record evidence presented to 

him, including Mosley’s testimony and medical records. See Kelley, 761 F.2d at 

1540. Mosley has failed to demonstrate any evidentiary gap in the record that 

resulted in clear prejudice sufficient to justify a remand. See Brown, 44 F.3d at 

935.

 2

 Although Social Security regulations do not define “deficits in adaptive functioning,” the 

Diagnostic and Statistical Manual of Mental Disorders states that adaptive functioning refers “to 

how well a person meets standards of personal independence and social responsibility, in 

comparison to others of similar age and sociocultural background. Adaptive functioning 

involves adaptive reasoning in three domains: conceptual, social, and practical.” AMERICAN 

PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 37

(5th ed. 2013). 

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III. CONCLUSION 

For all of the above reasons, we affirm the district court’s order affirming 

the Commissioner’s denial of Mosley’s application for disability insurance benefits 

and supplemental security income. 

AFFIRMED.

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