[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 96-3449
Non-Argument Calendar
________________________
D. C. Docket No. 94-10093-MMP
TAMMY GRAHAM,
Plaintiff-Appellant,
versus
KENNETH APFEL, Commissioner
of Social Security Administration,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 16, 1997)
Before HATCHETT, Chief Judge, EDMONDSON and CARNES, Circuit Judges.
PER CURIAM:
Tammy Graham appeals the district court's order affirming the
Social Security Commissioner's denial of her application for
supplemental security income,
42 U.S.C. § 1383(c)(3).
I.
Graham applied for disability benefits alleging disability
beginning September 13, 1990, due to symptoms associated with
insertion of a pacemaker. She alleged chest pain and fatigue
associated with microcytic hypochromic anemia and congenital heart
block.* Her applications were denied both initially and on
reconsideration. On August 7, 1992, Graham requested a hearing
before an Administrative Law Judge ("ALJ").
Graham's attorney filed his notice of appearance as
representative for her on September 25, 1992. The hearing was
scheduled for June 15, 1993, and a notice of that hearing was
mailed to Graham at her residence; however, no evidence indicates
that any notice was ever mailed to her attorney. Graham appeared
at the administrative hearing without her attorney, and the ALJ
found that she waived her right to be represented by counsel. It
is unclear whether the ALJ was aware that Graham had retained
*
A microcyte is an abnormally small red blood cell.
Microcytic anemia is an anemia characterized by the presence of
microcytes in the blood. Hyperchromic anemia is an anemia with
increase of hemoglobin in individual red blood cells and reduction
in the number of red blood cells. Webster's Medical Desk
Dictionary, Merriam-Webster, Inc. (1986).
2
counsel. The ALJ did not note that she had retained an attorney,
that he had entered an appearance, or whether he had been notified
of the date of the hearing.
At the time of the hearing, Graham was a 19 year-old high-
school student with one year remaining before graduation. She had
no "past relevant work" within the meaning of the regulations. At
the time of the hearing, she received $241/month in AFDC benefits
and $202/month in food stamps, resided in subsidized housing, and
paid $17/month for rent and $22/month for electricity.
On September 13, 1990, Graham received a pacemaker for
correction of a "heart block" and microcytic hyperchromic anemia.
She was stable on discharge, with a diagnosis of symptomatic heart
block including Mobitz type I and third-degree AV block, and
microcytic hyperchromic anemia. She was instructed to abstain from
heavy lifting and upper body exercise for one month. In December
1990, Graham developed chest pain while marching in ROTC, and was
briefly readmitted to the hospital. Her doctors determined that
her symptoms were not cardiac but were chest-wall pain. By
December 4, 1990, her treating physician had lifted the
restrictions noting that she could "resume normal activity."
The medical records demonstrate that Graham has experienced
chest pains, but her doctors determined on October 8, 1991, that
the cause was costochondritis, inflammation of the ribs and
cartilage, which is not a cardiac impairment. In December 1991,
3
Graham underwent surgery to remove impacted teeth with no residual
effects. In addition, a preoperative medical evaluation showed
that she was an excellent candidate for the surgery, and no
complications were anticipated as a result of the pacemaker. She
was prescribed Naprosyn and Ibuprofen. In January 1992, Graham was
seen by a plastic surgeon due to development of a keloid scar,
which was causing some pain, at the incision site of her pacemaker.
She decided against an invasive treatment for the scar. Graham
sought treatment for chest pains in February 1992. Her discharge
summary advised that the pain probably emanated from her rib cage,
not from her lungs or heart. The causes could have been viral
infection of the rib cage, bruising, or a pulled muscle.
Graham testified at the hearing that she could sit for about
seven hours a day and stand for twenty minutes. She attended high
school full-time, participating in a special program where she
worked at her own pace. She also had an eight-month-old child who
weighed about 20 pounds at the time of the hearing, and whom she
left with her mother during the time she attended school. She
testified that she cooked meals for herself and her child, and
assumed full responsibility for the child's care. She further
stated that she would lift the child about three times a day, but
would not perform any other lifting. In addition, she testified
that she shopped for herself at a store two miles away, although
her brother drove her. Graham further testified she has been
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unable to work because of chest pain, dizziness, and fatigue
experienced since the insertion of the pacemaker.
The ALJ determined based on the medical evidence that Graham
had a severe history of pacemaker insertion, costochondritis,
microcytic hyperchromic anemia, development of keloid tissue over
her surgery incision, and history of impacted teeth, but that she
did not have an impairment or combination of impairments listed in,
or medically equal to one listed in Appendix 1, Subpart P,
Regulations No. 4. In addition, the ALJ found that Graham's
subjective symptoms of pain, dizziness, shortness of breath, and
severe fatigue were not credible, because the alleged severity of
the symptoms were inconsistent with the medical evidence, with her
usual activities, and with reports of relief from these symptoms
(with medications)from treating sources. Based on these findings,
the ALJ concluded that although Graham did have severe impairments,
she retained the maximum residual functional capacity to perform a
full range of light work. He concluded that based on an exertional
capacity for light work, and Graham's age, education, and work
experience, Graham was not disabled, as defined by § 416.969 of
Regulations No. 16 and Rule 202.17, Table No. 2, Appendix 2,
Subpart P, Regulations No. 4. The Appeals Council denied review
and the district court affirmed the Secretary's denial of benefits.
II.
5
Graham argues on appeal that failure to notify her counsel of
the hearing violates her constitutional due process and statutory
rights. She further argues that she did not knowingly and
intelligently waive her right to counsel, and that due to the
violation of her constitutional rights she need not prove that she
was prejudiced by the ALJ's failure to fully and fairly develop the
record.
The government acknowledges, as it should, that the SSA erred
by failing to give notice of the ALJ hearing to Graham's attorney
and that the ALJ perpetuated the Administration's error by failing
to discover that Graham had counsel. However, the government
argues that the deprivation of the right to counsel was a
statutory wrong, not a constitutional wrong. The government
contends that the claimant must demonstrate prejudice to establish
a remandable violation of due process, and that the ALJ conducted
a full and fair hearing so that the lack of attorney representation
did not prejudice Graham. We agree.
III.
The Social Security Act mandates that "findings of the
Secretary as to any act, if supported by substantial evidence,
shall be conclusive." 42 U.S.C. § 405(g). Substantial evidence is
described as more than a scintilla, and means such relevant
evidence as a reasonable mind might accept as adequate to support
6
a conclusion. See Richardson v. Perales,
402 U.S. 389, 401,
91
S.Ct. 1420, 1427,
28 L.Ed.2d 842 (1971). The Secretary's decision
is also reviewed to determine whether the correct legal standards
were applied. See Martin v. Sullivan,
894 F.2d 1520, 1529 (11th
Cir. 1990). Because a hearing before an ALJ is not an adversary
proceeding, the ALJ has a basic obligation to develop a full and
fair record. See Cowart v. Schweiker,
662 F.2d 731, 735 (11th Cir.
1981). A Social Security claimant has a statutory right, which may
be waived, to be represented by counsel at a hearing before an ALJ.
See Brown v. Shalala,
44 F.3d 931, 934 (11th Cir. 1995), citing
Smith v. Schweiker,
677 F.2d 826 (11th Cir. 1982) and
42 U.S.C. §
406. The deprivation of the statutory right to counsel at a Social
Security hearing is a statutory wrong, not a constitutional wrong.
See Holland v. Heckler,
764 F.2d 1560, 1563 (11th Cir. 1985).
However, where the right to representation has not been
waived, the hearing examiner's obligation to develop a full and
fair record rises to a special duty. See Brown,
44 F.3d at 934-
935, quoting Smith,
677 F.2d at 829. This special duty requires
the ALJ to 'scrupulously and conscientiously probe into, inquire
of, and explore for all the relevant facts' and to be 'especially
diligent in ensuring that favorable as well as unfavorable facts
and circumstances are elicited.' Cowart, 652 F.2d at 735
(citations omitted). It is not necessary to determine that the
presence of counsel would necessarily have resulted in any specific
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benefits. See Clark v. Schweiker,
652 F.2d 399, 404 (5th Cir. Unit
B July 1981). However, there must be a showing of prejudice before
it is found 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. See Brown,
44
F.3d at 934-935. The court should be guided by whether the record
reveals evidentiary gaps which result in unfairness or 'clear
prejudice.'"
Id.
This Court has previously examined cases where notice was
defective or the plaintiff's waiver of counsel was invalid. In
Brown, where the claimant had not made a knowing and intelligent
waiver of right to representation at the hearing, we stated that a
showing of prejudice was necessary for remand, and found prejudice
where the ALJ had failed to fully develop the record. See Brown,
44 F.3d at 934-35. We noted that the ALJ had failed to obtain
records of treatment about which claimant testified, that the ALJ
agreed to get a rehabilitation report, but failed to do so, and
that the ALJ had failed to question an available witness where the
claimant had "great difficulty" explaining how her ailments
prevented her from working. Brown,
44 F.3d at 936. In contrast,
in Kelley v. Heckler,
761 F.2d 1538 (11th Cir. 1985), where the
claimant claimed a due process violation due to lack of counsel at
the administrative hearing, we held that the claimant had shown no
unfairness or prejudice where he made no allegations that the
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record as a whole was incomplete or inadequate and the ALJ's
opinion was "quite thorough." Kelley,
761 F.2d at 1540.
Here, the record as a whole is neither incomplete nor
inadequate. (Id. at 121-77). Instead, the record was sufficient
for the ALJ to evaluate Graham's impairments and functional
ability, and does not show the kind of gaps in the evidence
necessary to demonstrate prejudice.
In addition, the ALJ's questioning brought out all aspects
of how Graham’s symptoms affected her. He questioned Graham about
whether she had additional medical evidence to include. He asked
her about her living arrangements and how she provided for herself
and her baby, as well as about her education and school
performance. He questioned her about her medical condition and
treatment, her symptoms and frequency, and the medication taken to
control them. He asked her how long she could sit and stand, how
far she could walk, and how much she could lift. He compared her
capabilities with the functional requirements for light work.
Furthermore, unlike the claimant in Brown, Graham was able to
explain to the ALJ how her impairment affected her abilities. The
ALJ's opinion also thoroughly evaluated Graham's medical history.
It detailed Graham's testimony and symptoms, described her
functional limitations and daily activities, and then compared
these with the functional requirements for light work.
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Finally, Graham has failed to point to anything in the record
which suggests that additional medical evidence specific to her
situation might be gathered, nor has she alleged undiscovered facts
or an undeveloped avenue of inquiry. Graham has failed to
demonstrate evidentiary gaps in the record which have resulted in
prejudice sufficient to justify a remand to the Secretary.
IV.
AFFIRMED.
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