The showing of a violation of a claimant's statutory right
to counsel is not, by itself, cause for remand unless
prejudice or unfairness to the claimant can also be shown.
Smith v. Secretary of HEW, 587 F.2d at 860; Sykes v. Finch,
443 F.2d 192, 194 (7th Cir. 1971). Prejudice to the claimant may be
demonstrated by showing that the ALJ did not fulfill his or her
obligation to develop a full and fair hearing. Smith v.
Secretary of HEW, 587 F.2d at 860. The ALJ has a duty in all
cases to develop a full and fair record but, where the right to
counsel has not been effectively waived, the ALJ's obligation
is heightened. Smith v. Schweiker, 677 F.2d at 829; Cowart v.
Schweiker, 662 F.2d 731, 735 (11th Cir. 1981); Clark v.
Schweiker, 652 F.2d 399, 404 (5th Cir. 1981); Cannon v. Harris,
651 F.2d 513, 519 (7th Cir. 1981); Smith v. Secretary of HEW,
587 F.2d at 860. This heightened duty requires the ALJ "to
scrupulously probe into, inquire of and explore for all of the
relevant facts." Cannon v. Harris, 651 F.2d at 519; Smith v.
Secretary of HEW, 587 F.2d at 860; Gold v. Secretary of HEW,
463 F.2d 38, 43 (4th Cir. 1972). The ALJ must be "especially
diligent in ensuring that favorable as well as unfavorable
facts and circumstances are elicited." Thompson v. Schweiker,
665 F.2d 936, 941 (9th Cir. 1982) (quoting Rosa v. Weinberger,
381 F. Supp. 377, 381 (E.D.N.Y. 1974)). "[T]he ALJ's failure to
pursue relevant avenues of inquiry, or to assist the claimant,
who appeared pro se, deprive[s] [the claimant] of his right to
an impartial decision based on an inadequate record." Thompson,
665 F.2d at 939. Therefore, a showing that the ALJ failed to
fully develop the record by not eliciting all of the relevant
information is a showing of prejudice to the claimant and a
cause for remand.
In this case, the ALJ did not stress the function and
importance of having counsel to plaintiff, nor did he inform
plaintiff that there was a possibility of obtaining free
counsel or that there are limitations on attorneys' fees to 25
percent of any eventual award. The information regarding the
cost of any attorney is particularly relevant in disability
cases where shortage of funds is likely to be an issue for the
claimants. Therefore, in light of plaintiff's limited
education and the ALJ's discouraging statements regarding
plaintiff's right to an attorney, this Court finds that
plaintiff did not knowingly and intelligently waive his right
to counsel at the hearing.
As stated previously, however, the showing of a violation of
claimant's statutory right to counsel is not, by itself,
sufficient to cause the ALJ's decision to be prejudicial to
plaintiff. The next issue in this case then is whether the ALJ
fulfilled his duty to develop a full and fair record and to
"scrupulously probe into, inquire of and explore for all
relevant facts." See Gold v. Secretary of HEW, 463 F.2d 38 (2nd
In this case, the ALJ failed to explore or probe for all
relevant facts. Although the ALJ was informed by plaintiff
that plaintiff was currently under the care of Dr. Yasher, the
ALJ made no attempt to obtain current medical reports from Dr.
Yasher. Instead, the ALJ disregarded the conclusions of two
other treating physicians, and instead relied upon a
consulting physician's report. Although a claimant's own
personal physician's testimony or records are not necessarily
the definitive word on the claimant's medical status, those
records should be given greater weight than other consulting
physicians' recommendations. Bowman v. Heckler, 706 F.2d 564,
568 (5th Cir. 1983).
Without considering the above, and perhaps other, relevant
evidence, the ALJ found that plaintiff was not under a
disability as that term is defined under the Social Security
Act and therefore not entitled to disability benefits. In
doing so, the ALJ failed to meet the heightened duty of
developing a full and fair record which he incurs when the
claimant is unrepresented by counsel. Since plaintiff was not
given enough information regarding the right to have an
attorney present at his hearing to ensure a knowing and
intelligent waiver of this right, and the ALJ did not meet his
obligation to assist plaintiff in developing the record, it is
clear that plaintiff was prejudiced due to his lack of
counsel. This is sufficient cause for remanding this case to
the Secretary for a new hearing. Smith v. Secretary of HEW, 587
F.2d at 860; Jeralds v. Richardson, 445 F.2d 36, 39 (7th Cir.
Accordingly, cross-motions for summary judgment are denied.
This case is remanded to the Secretary for further proceedings
consistent with this opinion.
IT IS SO ORDERED.
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