[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 20-11557

Non-Argument Calendar

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D.C. Docket No. 8:18-cv-02964-MSS-CPT

STEVEN R. THOMAS, II, 

 Plaintiff-Appellant,

 versus

COMMISSIONER OF SOCIAL SECURITY,

 Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(December 29, 2020)

Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM: 

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In October 2005, Steven Thomas applied for disability insurance benefits 

and supplemental security income, and the Social Security Administration issued a 

disability determination in December of that year. But disabilities can cease, and 

the SSA found that Thomas’s ended by December 2014. Because Thomas 

disagrees with the finding of the ALJ and the district court’s affirmation of the 

Commissioner’s decision, he now appears before us, arguing that how the ALJ 

reached his decision was flawed. And because Thomas has not shown that he was 

prejudiced by any alleged flaws, we affirm. 

I.

Though Thomas alleged that his disabling condition rendered him unable to 

work in 2003, it was not until 2005 when he submitted an application for disability 

insurance benefits (DIB) and supplemental security income (SSI). His application 

was received favorably, and before 2005 ended the SSA released a determination 

that Thomas was disabled, and that his disability started in October of 2005. 

Thomas received a primary diagnosis of “organic mental disorder,” and a 

secondary diagnosis of “personality disorder.” His disability was found to be 

effective as of October 2005, and he received benefits as a result.

But a finding of a disability is not permanent. Rather, under 20 C.F.R. 

§§ 404.1594 and 416.994, “continued entitlement to [disability] benefits must be 

reviewed periodically.” That review is conducted in steps, outlined in the agency’s 

regulations, and following those steps leads to a finding that the disability is 

continuing or that the disability has ceased. For purposes of Thomas’s appeal, we 

are only concerned with the step where a claimant’s characteristics are considered 

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in determining whether he can perform work other than what he did in the past. 20 

C.F.R. §§ 404.1594(f)(8), 416.994(b)(5)(vii). If he can, he is no longer disabled; if 

he cannot, his disability continues. 

The first periodic review of Thomas’s disability was in 2011, and there he 

was found to still be disabled. Not so in 2015; the SSA found that his disability 

had ceased as of December 2014. That prompted his request for a hearing by an 

ALJ. But when Thomas appeared before the ALJ at the disability hearing, he was 

unrepresented; the ALJ offered a postponement of the hearing so that Thomas 

could find representation, and Thomas accepted. 

Finally, in April 2017, the hearing resumed before a different ALJ. But 

Thomas still did not have a representative; in Thomas’s words, it was because

“they wanted like a cut, like a back payment cut.” During the lengthy back-andforth, when the ALJ asked if Thomas wanted to proceed with the hearing anyway, 

the response was “I guess so.” The ALJ ended up stating, “I’ll find the claimant 

elects to proceed at this time without representation.” At some point that same 

day, Thomas signed a waiver of his right to representation. 

And the crucial part of the hearing came at the end. After verifying with the 

vocational expert that the expert’s resume in the file was accurate and that he 

understood his role as an impartial witness, the ALJ proffered to the vocational 

expert a hypothetical claimant with Thomas’s characteristics. The vocational 

expert responded with three possible jobs for such a hypothetical claimant: a job as 

a parts inspector, for which there were over 135,000 jobs; a job as a hand sander, 

for which there were over 3,500 jobs; and a job as a shipping and weighing 

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receiver, for which there were over 29,000 jobs. The hearing concluded shortly 

thereafter, without Thomas cross-examining the vocational expert. Based on the 

expert’s testimony, the ALJ issued his decision, in which he found that Thomas’s

disability ended in December 2014. 

Thomas requested that the Appeals Council review the ALJ’s decision, but 

the Council “found no reason” under its rules to do so. So Thomas went to court, 

and filed his complaint in the United States District Court for the Middle District 

of Florida. Before the district court, Thomas alleged that the ALJ failed to develop 

an adequate record. More specifically, he argued that the ALJ had a “special duty” 

to develop a record because Thomas was unrepresented, that the ALJ did not 

properly question the vocational expert, and that the ALJ did not give Thomas an 

opportunity to cross-examine the vocational expert himself. Thomas requested 

either reversal of the decision below or, in the alternative, a remand for a new 

hearing. 

The report and recommendation from the magistrate judge disagreed. As an 

initial matter, the magistrate judge found that Thomas was not owed a special duty 

to develop the record. Next, the magistrate judge found unconvincing any of 

Thomas’s arguments that the testimony elicited from the vocational expert was 

insufficient. And finally, the magistrate judge found that, in any event, Thomas 

failed to show prejudice from any of the ALJ’s alleged failings. After reviewing 

Thomas’s objections, the report and recommendation was adopted by the district 

court. Thomas now appeals that decision.

II.

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Our review of the legal principles on which the ALJ relied is de novo, but 

“we are limited to assessing whether the ALJ’s resulting decision is supported by 

substantial evidence.” Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1266–67 

(11th Cir. 2015). “In social security cases where the ALJ denies benefits and the 

Appeals Council denies review, we review the ALJ’s decision as the 

Commissioner’s final decision.” Id. at 1267 (internal quotation marks omitted) 

(punctuation altered). And finally, our review “is the same as that of the district 

court, meaning we neither defer to nor consider any errors in the district court’s 

opinion.” Id. (citations and internal quotation marks omitted). 

III.

“Because a hearing before an ALJ is not an adversary proceeding, the ALJ 

has a basic obligation to develop a full and fair record.” Cowart v. Schweiker, 662 

F.2d 731, 735 (11th Cir. 1981). And this obligation is not extinguished by the 

presence or waiver of counsel on the part of the claimant. Id. Still, a lack of 

representation where the claimant did not waive counsel gives rise to a “special 

duty” to develop the record. Smith v. Schweiker, 677 F.2d 826, 829 (11th Cir. 

1982). Even so, “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.” Brown 

v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995).

In his briefs before us, Thomas makes a variety of assertions. He suggests 

that he did not actually waive his right to counsel. He claims that, even if he 

waived that right, the fact that he was unrepresented meant that the ALJ had a 

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“special duty” to develop the record with regard to the vocational expert, 

regardless of whether his lack of representation was voluntary. And he urges us to 

find that the ALJ failed in that duty when he did not inquire into the vocational 

expert’s methods or data, and did not give Thomas an opportunity to crossexamine the expert. All this, Thomas argues, shows that the ALJ failed to 

adequately develop the record, and therefore remand is appropriate. 

The exact contours of the duty owed by an ALJ to an unrepresented claimant

constitute an interesting, even important, issue. But this is not the case to consider 

it, because none of the claims that Thomas properly raises before us is the reason 

his action fails. Whether or not Thomas waived his right to counsel, and whether 

or not he was owed a “special” or basic duty to develop the record, he has not 

shown that any of these failures have prejudiced him. 

And showing prejudice is no trivial matter. In deciding whether a remand is 

justified, we “are guided by whether the record reveals evidentiary gaps which 

result in unfairness or clear prejudice.” Brown, 44 F.3d at 935. Thomas has made 

no such showing. His argument that he has suffered prejudice consists of his claim 

that, had the vocational expert “been properly questioned, the national [job] 

numbers finding in all likelihood would have proved defective and unreliable.” 

And he argues that, had the vocational expert been “properly questioned and the 

methodology proved defective and the numbers unreliable, the Commissioner

would have failed to meet its” burden. But that is conclusory. In Smith v. 

Schweiker, a social security claimant attempted to prove that his lack of counsel 

prejudiced him. 677 F.2d at 830. We rejected his argument when we found that 

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his “proffer of prejudice” amounted “to no more than speculations on ways in 

which an attorney could have bolstered his credibility before the ALJ.” Id. 

Thomas has given us no reason to find that we should treat his own conclusory 

speculations any differently.1

And to the extent that Thomas raises a claim that the ALJ’s findings are 

simply not supported by substantial evidence, we reject his argument as well. The 

substantial evidence standard is a deferential one—after all, “[s]ubstantial evidence 

is more than a scintilla, but less than a preponderance.” Miles v. Chater, 84 F.3d 

1397, 1400 (11th Cir. 1996) (quotation omitted). Here, Thomas challenges the 

ALJ’s use of a vocational expert. “In order for a vocational expert’s testimony to 

constitute substantial evidence, the ALJ must pose a hypothetical question which 

comprises all of the claimant’s impairments.” Wilson v. Barnhart, 284 F.3d 1219, 

1227 (11th Cir. 2002).

Thomas gives us no reason to think that the vocational expert’s testimony 

amounts to merely a scintilla. The only controlling case he brings to our attention 

in this regard is the Supreme Court’s recent decision in Biestek v. Berryhill, 139 S. 

Ct. 1148 (2019). It does not support his argument. In Biestek, the Court held that a 

vocational expert’s refusal of a request for underlying data was not categorically 

sufficient to bar that expert’s testimony from qualifying as substantial evidence. 

1 To the extent we read Thomas’s brief to raise our holding in Cowart v. Schweiker in connection 

with his assertion that he was prejudiced, we note that, there, invalidation of the ALJ’s decision 

was justified when there was no opportunity to examine or challenge reports submitted posthearing, or to cross-examine the physicians who submitted those reports. 662 F.2d 731, 737 

(11th Cir. 1981). Thomas has made no specific argument for why Cowart, with those facts, 

should control here. 

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Id. at 1157. In other words, the Court did not find that the vocational expert’s 

testimony was inadequate, and it does not support us making that sort of a finding 

here. 

IV.

To support remand, it is not enough to say that, had the ALJ asked certain 

questions, the result could have been different. Thomas had to make an adequate 

showing of prejudice, and because he did not do so, we AFFIRM the district 

court’s decision.

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