Laura Henderson v. Commissioner of Social Security

                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            Nov. 18, 2009
                             No. 09-12457                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 07-00614-CV-J-25-TEM

LAURA HENDERSON,


                                                           Plaintiff-Appellant,

                                  versus

COMMISSIONER OF SOCIAL SECURITY,

                                                          Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                           (November 18, 2009)

Before BLACK, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
       Laura Henderson, through counsel, appeals the magistrate judge’s decision 1

affirming the Social Security Commissioner’s denial of her application for social

security income. Henderson asserts the Administrative Law Judge (ALJ) erred by

(1) concluding her post-traumatic stress disorder (PTSD) was not a severe mental

impairment, and (2) failing to develop a full and fair record. We address each

issue in turn, and affirm.2

                                              I.

       Henderson contends the ALJ erred by not finding her PTSD to be a severe

mental impairment. We decline to address this argument on appeal because

Henderson failed to raise it before the district court, instead asserting the ALJ erred

by not finding her depression–a distinct mental illness–to be a severe impairment.

See Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004); Jones

v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).

                                              II.

           Henderson argues the ALJ failed to develop a full and fair record.

Specifically, she asserts the ALJ’s failure to request and obtain an updated mental


       1
         The parties consented to the magistrate conducting the proceedings and issuing a final
judgment, pursuant to 28 U.S.C. § 636(c).
       2
         “We review the Commissioner’s decision to determine if it is supported by substantial
evidence and based on proper legal standards.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1158 (11th Cir. 2004).

                                              2
residual functional capacity (RFC) assessment from Dr. Andres Nazario constitutes

reversible error.

      “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). “Nevertheless, there must be a showing of

prejudice before we will . . . remand[] to the [Commissioner] for further

development of the record.” Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995).

      In this case, Henderson does not explain how the absence of a mental RFC

assessment from the record precluded the ALJ from making an informed disability

determination. Nor does she explain how such an assessment would have affected

the ALJ’s overall disability determination. Because Henderson has not shown the

requisite prejudice, we affirm.

      AFFIRMED.




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