1

The entry of judgment in this case was ordered by a United

States magistrate judge to whom the case was referred by consent

of the parties. See 28 U.S.C. § 636(c)(1). This appeal is taken

directly from the magistrate judge's order, as permitted by 28

U.S.C. § 636(c)(3). 

United States Court of Appeals,

Eleventh Circuit.

No. 93-8724.

Jimmie L. BROWN, Plaintiff-Appellant,

v.

Donna E. SHALALA, Secretary, Health and Human Services,

Defendant-Appellee.

Jan. 26, 1995.

Appeal from the United States District Court for the Middle

District of Georgia. (No. 5:91-00287-1-CV-MAC(DF)), Claude W.

Hicks, Jr., Magistrate.

Before EDMONDSON and CARNES, Circuit Judges, and HENDERSON, Senior

Circuit Judge.

PER CURIAM:

Jimmie L. Brown appeals from the judgment entered in the

United States District Court for the Middle District of Georgia 1

affirming the denial by the Secretary of Health & Human Services

("Secretary") of her application for disability insurance benefits

under Title II of the Social Security Act, 42 U.S.C. §§ 416(i),

423. For the reasons set forth below, we reverse and remand for

further proceedings.

I. BACKGROUND

Brown, born on July 6, 1930, has past relevant work experience

selling furniture and insurance, collecting premiums and has been

employed as a domestic, a medical file clerk and a record keeper.
 2

The administrative record also contains an application for

benefits dated March 10, 1986, which was denied upon initial

consideration by the Secretary on July 24, 1986. The record does

not reflect that Brown sought administrative or judicial review

of that denial. The only application relevant to this appeal is

the one filed on June 20, 1989. 

 3The regulations provide that a claimant may appoint as his

or her representative any person of good character and reputation

who is capable of providing valuable help in connection with the

claim and who is not otherwise disqualified or prohibited by law

from acting in that capacity. 20 C.F.R. § 404.1705(b). 

She applied for disability insurance benefits on June 20, 1989, 2

alleging that she became unable to work on March 9, 1989 due to

paralysis of unknown origin, which her doctor believed was "in

[her] mind." (Admin. tr. at 127). The application was denied and

she requested and received a hearing before an administrative law

judge ("ALJ"). Prior to the hearing, she was notified of her right

to be represented by an attorney or other qualified person of her

choice.3 She appeared pro se, however, and executed a form which

indicated that she was willing to proceed alone. After she signed

the waiver, the following colloquy between Brown and the ALJ took

place:

ALJ: Now, you have signed a waiver of your right to Counsel,

and you were informed when you received your notice of hearing

that you had the right to have—

CLMT: We—

ALJ:—a representative.

CLMT: We sent it in, but they just wouldn't, wouldn't, we

don't understand it. He even, my—

ALJ: Uh-huh.

CLMT:—counselor called and the lady said we got it, we got it,

it's been sent in. So,—

ALJ: Uh-huh.
CLMT:—when I got the letter to come over here, it, it wasn't,

his, they hadn't sent him a copy. So, I called him and he

came over to the house and he said, well I talked to him and

I did all I know to do. He said I just been rejected. He

said just go on without me.

ALJ: Okay. Now, is this Georgia Legal Service?

CLMT: No, sir. It was Quinto (Phonetic) Norris, I [sic] man

I worked under and worked with.

ALJ: Uh-huh.

CLMT: Until 1986.

ALJ: And, and what was he? Was he?

CLMT: He, he's, you know [a] supervisor to the Life of

Georgia Insurance Company.

ALJ: I see. And he, you asked him to represent you here

today?

CLMT: I asked him, because the last years that I really had

strength to work.

ALJ: Uh-huh.

CLMT: I was working side by side with him, every time he made

a step I made one.

ALJ: Okay. But, I mean this, you would ask him to represent

you, is that [what] you're talking about?

CLMT: Yes, sir.

ALJ: Okay. And he ... said no?

CLMT: He said, yes. He filed [sic] out the papers and—

ALJ: Uh-huh.

CLMT:—we mailed them back and everything. He was—

ALJ: Uh-huh.

CLMT:—calling them.

ALJ: Okay. Well, the main thing I want you to understand

here today, is though you do know you had a right to

representation?

CLMT: And we, we, we, we sent one in, but they just wouldn't.

I don't understand.
ALJ: Okay. Well, here's my thing Miss Brown. I'm, I'm, I

don't mean [to be] quick with you, so please don't think it's

that. But, you were informed in a notice of hearing, that you

have a right to have a representative. You have signed a

waiver saying that you understand that and you're ready to

proceed today without—

CLMT: Yes—

ALJ:—a representative.

CLMT:—I can go on without a representative.

ALJ: Yeah. Is that what you want to do?

CLMT: I can go on without it, sir, because I been signed up.

Rehabilitation is sending me to school, starting in two weeks.

ALJ: Uh-huh.

CLMT: Trying to get me to where I can do something—

ALJ: Okay. Well, I'm not, I don't want to get into that now.

I want to stick to the issues that we're addressing. And that

is you are ready to proceed without a representative here

today. That's what you desire to do, is that correct?

CLMT: Yes, sir.

(Id. at 46-48).

Following this exchange, the ALJ proceeded with the hearing.

Brown testified that she was seeking vocational training in

computer programming, but that she was precluded from working for

a number of reasons. Her symptoms included ambulatory

difficulties, pain, numbness and uncontrolled bowel movements. She

stated that she could stand for only five minutes and sit for only

fifteen minutes. She also claimed that she became ill after eating

a piece of cake allegedly poisoned with ground silver by her

coworkers at the furniture store and that her physician, Dr. D.

Robert Howard, confirmed during her last examination that she had

some type of toxin in her body.

Aside from Brown's testimony, the evidence admitted at the
 4

The medical reports submitted by Dr. Howard span the period

of time between August 3, 1989 and November 13, 1989. Brown

testified that she saw the doctor the day before the hearing,

which was held on June 20, 1990, and two weeks prior to the

hearing. (See Admin. tr. at 52-53). 

hearing included reports from various treating and consulting

physicians and psychologists. The record did not contain reports

concerning the last two visits Brown claimed she had with Dr.

Howard;4 nor did it contain any information from a state

rehabilitation center in Macon, Georgia, where Brown said she had

been undergoing therapy. The ALJ indicated that he would request

updated records from Dr. Howard as well as from the Macon facility,

but the documents are not part of the record.

After the hearing the ALJ did obtain a vocational evaluation

from Goodwill Industries, which advised that Brown was capable of

performing a variety of clerical and administrative jobs. He then

invited Brown to submit objections to this assessment. She replied

with a hand-written letter in which she reiterated many of her

complaints, including certain events surrounding the alleged

poisoning, and indicated that she lacked sufficient funds to

purchase her medication. In a postscript she stated that she

"[w]rote this letter 3 times trying to say what I wanted to say[.]

[M]y memoral [sic] is still not as good as it should be, but by the

help of God it is better[.]" (Id. at 283).

The ALJ found that Brown suffered from arthritis and dementia,

manifested by hysterical extremity paralysis and that she

experienced some discomfort caused by pain. He concluded,

nevertheless, that these impairments did not substantially

interfere with her ability to perform her past relevant work and
therefore denied benefits. Brown then filed a request for a review

by the Appeals Council. While the request was pending, she

retained an attorney, who sought to reopen the hearing alleging

that Brown's waiver of representation was invalid and that the ALJ

failed to fully develop the record. Counsel also submitted the

affidavit of Brown's husband, who stated, inter alia, that his wife

suffered from extreme nervousness, problems with concentration,

increasingly paranoid thoughts, rambling and confused speech and

mood swings, which ranged from explosive incidents to severe bouts

of depression. The Appeals Council found no basis for granting

review, however, and allowed the ALJ's decision to stand as the

final decision of the Secretary.

Brown then sought judicial review pursuant to 42 U.S.C. §

405(g). As noted earlier, by consent of the parties, the case was

assigned by the district court to a United States magistrate judge

for final disposition. As did the Appeals Council, the magistrate

judge rejected Brown's contentions with respect to her decision to

proceed pro se at the hearing and the development of the record.

He also found no merit in her claims that the ALJ failed to

properly evaluate the combined effect of all of her impairments and

her subjective complaints of pain. Concluding that substantial

evidence supported the Secretary's denial of benefits, the court

entered judgment in favor of the Secretary.

II. DISCUSSION

On appeal, Brown reasserts the arguments she raised before the

magistrate in the district court. In view of our conclusion that

Brown did not receive a full and fair hearing, we do not address
 5

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir.1981) (en banc), this court adopted as precedent all

decisions of the former United States Court of Appeals for the

Fifth Circuit rendered prior to October 1, 1981. 

whether the ALJ committed legal error in evaluating the evidence or

whether substantial evidence in the record as it now stands

supports the denial of benefits.

 A Social Security claimant has a statutory right, which may

be waived, to be represented by counsel at a hearing before an ALJ.

Smith v. Schweiker, 677 F.2d 826, 828 (11th Cir.1982); 42 U.S.C.

§ 406. Whether or not the applicant is represented, the ALJ still

has a duty to develop a full and fair record. Clark v. Schweiker,

652 F.2d 399, 404 (5th Cir.Unit B July 1981).5 When the right to

representation has not been waived, however,

the hearing examiner's obligation to develop a full and fair

record rises to a special duty. This special duty requires,

essentially, a record which shows that the claimant was not

prejudiced by lack of counsel. In carrying out this duty, the

ALJ must "scrupulously and conscientiously probe into, inquire

of, and explore for all the relevant facts."

Smith, 677 F.2d at 829 (citations omitted). "Under this standard,

we are not required to determine that the presence of counsel would

necessarily have resulted in any specific benefits in the handling

of the case before the ALJ." Clark, 652 F.2d at 404.

Nevertheless, 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. Kelley v. Heckler, 761 F.2d

1538, 1540 (11th Cir.1985).

 The portions of the hearing transcript quoted in Part I of

this opinion plainly reveal that Brown was confused by the ALJ's
 6

A notice sent to Brown prior to the hearing informed her

that a private attorney might be willing to take her case on an

contingent fee basis. It also listed the addresses and telephone

numbers for the Georgia Legal Services Program in her area and a

national referral organization as sources of possible free legal

assistance. Brown was not asked whether she sought help from any

of these or other related services, nor was any effort made to

determine whether she understood that she might obtain legal

representation in those ways. 

 7The magistrate judge erroneously treated Brown's waiver as

dispositive of the issue of whether she received a full and fair

hearing. 

questions concerning representation. Although she eventually

responded in the affirmative when asked whether she desired to

proceed alone, her earlier statements reflect that she wanted the

assistance of her former supervisor, who told her to go on without

him. Nothing in her testimony evinces an understanding that she

had other options which were either explored or rejected. 6 Cf.

Cowart v. Schweiker, 662 F.2d 731, 734-35 (11th Cir.1981)

(claimant's affirmative response when asked whether she wished to

proceed without counsel did not reflect a true desire to do so when

viewed in the context of other testimony that she had

unsuccessfully attempted to obtain free public assistance and was

unable to afford a private attorney). On this record, we cannot

concur with the magistrate judge that Brown knowingly and

voluntarily waived her right to be represented at the hearing.

 Even if we agreed that Brown did effectively renounce her

right to counsel, there remains the question of whether the ALJ

fulfilled his duty to develop the record.7

 We hold that he did not

and that Brown was prejudiced thereby. See Kelley, 761 F.2d at

1540 n. 2 (recognizing "a slightly different standard" for

evaluating whether an unrepresented claimant has received a full
 8

Brown testified that a counselor at the rehabilitation

center, named Mr. Crawford, had been working with her to

determine whether she could attend school to learn computer

programming and that they had discussed a plan for her to take

some "re-media [sic] courses in English." (Admin. tr. at 80). 

The ALJ stated that he would "send for records from him[,]" that

is, from Mr. Crawford, as well as a report from Goodwill

Industries, where Brown was referred by the center for a

vocational and psychological assessment. (Id. at 81). Perhaps

the ALJ believed that the latter report, which he did obtain,

constituted the extent of the outstanding documentation with

respect to the efforts made to evaluate Brown's ability to work. 

Her testimony, however, appears to indicate otherwise. 

and fair hearing depending upon whether there has been a valid

waiver and noting that, in any case, there must be a showing of

prejudice to trigger a remand to the Secretary for

reconsideration). As noted above, there is no indication that the

ALJ contacted Dr. Howard for up-to-date medical records even though

Brown testified that she was examined by him twice just prior to

the hearing. The most recent information submitted by his office

predates the hearing by more than six months. The ALJ also agreed

to procure a report from the center in Macon where Brown had

undergone rehabilitation therapy, but no such document was made a

part of the record.8

 In evaluating the necessity for a remand, we are guided by

"whether the record reveals evidentiary gaps which result in

unfairness or "clear prejudice.' " Smith, 677 F.2d at 830 (quoting

Ware v. Schweiker, 651 F.2d 408, 413 (5th Cir.Unit A July 1981),

cert. denied, 455 U.S. 912, 102 S.Ct. 1263, 71 L.Ed.2d 452 (1982)).

The lack of medical and vocational documentation supporting an

applicant's allegations of disability is undoubtedly prejudicial to

a claim for benefits. We have no way of knowing whether the

evidence missing from this case would sustain Brown's contentions
 9

We do not mean to suggest that a remand is warranted any

time a claimant alleges that the ALJ has neglected to complete

the record. The likelihood of unfair prejudice to a claimant may

arise, however, where as here, the evidentiary gap involves

recent medical treatment, which the claimant contends supports

her allegations of disability, or the receipt of vocational

services. 

 10Because Brown testified that her husband drove her to the

hearing, we presume he was an available witness. 

of her inability to work. In the absence of proof to the contrary,

however, we must assume that it does lend credence to her

allegations.9

We also observe that the ALJ did not question Brown's husband

concerning her complaints.10 In Cowart, this court held that the

ALJ failed to discharge his special duty to develop the facts where

he neglected to elicit such clearly relevant and readily available

testimony. See Cowart, 662 F.2d at 735. The transcript of the

hearing portrays a claimant who had great difficulty conveying with

any precision the manner in which her various subjective ailments

affected her ability to engage in substantial gainful activity.

"Any lawyer prepared for a hearing ... would realize that the

statement of such subjective matters by the claimant would be the

kind of evidence that most required supporting testimony by family

or friends." Clark, 652 F.2d at 404. Although the Appeals Council

was later able to consider Mr. Brown's affidavit, the value of live

testimony, where demeanor can be considered and credibility more

readily evaluated, cannot be discounted. An attorney would have

been able also to assist Brown in responding to the vocational

assessment prepared by Goodwill Industries.

III. CONCLUSION
In view of the evidentiary gaps in the record, we find that

Brown was not afforded a full and fair hearing and that she was

prejudiced thereby. The judgment is therefore REVERSED and the

case is REMANDED with instructions that it be returned to the

Secretary for further proceedings consistent with this opinion.