Thompson v. Astrue

Filing 24

MEMORANDUM OPINION; that this case be reversed and remanded to the Commissioner for further proceedings consistent with this opinion. A separate order shall accompany this opinion. Signed by Honorable Charles S. Coody on 9/28/2010. (jg, ) Copies mailed to SSA Chief Judge and Social Security Administrator (jg, ).

T h o m pson v. Astrue(CONSENT)

Do c. 24

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION M A R Y D. THOMPSON, P l a in tif f , v. M IC H A E L J. ASTRUE, C O M M IS S IO N E R OF S O C IA L SECURITY, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) )

C I V IL ACTION NO. 1:09cv402-CSC (W O )

M E M O R A N D U M OPINION I . Introduction T h e plaintiff, Mary D. Thompson ("Thompson"), filed this lawsuit challenging a final ju d g m e n t by Defendant Michael J. Astrue, Commissioner of Social Security, in which he d e te rm in e d that she is not "disabled" and, therefore, not entitled to child disability or s u p p le m e n t a l security income benefits.1 In 1992, when Thompson was five years old, she was awarded supplemental social s e c u rity income benefits based on "evidence in the file reveal[ing] a severe speech problem a n d mental deficiency" and a primary diagnosis of autistic disorder and other pervasive d e v e lo p m e n tal disorder. (R. 50.) Upon reconsideration of Thompson's benefits in

S e p tem b e r 1998, the Commissioner determined that the claimant's benefits should

Thompson was a child when her mother initially submitted an application on her behalf ; however, Thompson turned 18 years old on December 6, 2005, during the pendency of her application. The ALJ discussed Thompson's application as an adult in his analysis.

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c o n tin u e based on a primary diagnosis of mental retardation. (R. 56.) In January 2002, the C o m m is s io n e r reconsidered the case and again determined that Thompson should continue to receive supplemental security income benefits due to her disability. (R. 117.) After Thompson's father passed away, Thompson's mother filed on behalf of T h o m p s o n an application for child's disability insurance benefits as a survivor on December 1 , 2005. (R. 302.) Five days later, on December 6, 2005, Thompson turned eighteen years o f age. Shortly thereafter, the Commissioner reconsidered its previous findings of disability, s p e c if ic a lly determining whether Thomspon was entitled to child disability benefits and s u p p le m e n ta l security income.2 (R. 22, 26, 282.) Thompson's application was denied at the in itia l administrative level. Thompson then requested and received a hearing before an A d m in is tra tiv e Law Judge ("ALJ"). Following the hearing, the ALJ also denied the claim. T h e Appeals Council rejected a subsequent request for review. The ALJ's decision

c o n se q u e n tly became the final decision of the Commissioner of Social Security ("C o m m iss io n er" ).3 See Chester v. Bowen, 792 F.2d 129, 131 (11 th Cir. 1986). T h e case is now before the court for review pursuant to 42 U.S.C. § 405 (g) and § 1 6 3 1 (c )(3 ). Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have c o n se n te d to entry of final judgment by the United States Magistrate Judge. Based on the
Because Thompson turned 18 years old in December 2005, the ALJ treated her application for survivor benefits as an application for both child disability benefits and supplemental security income based on her disability. (R. 22.) Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.
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c o u rt's review of the record in this case and the briefs of the parties, the court concludes that th e decision of the Commissioner should be reversed and this case remanded to the C o m m is s io n e r for further proceedings. I I . Standard of Review U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period o f not less than 12 months. . . . To make this determination,4 the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. § 404.1520, §416.920. (1 ) Is the person presently unemployed? (2 ) Is the person's impairment severe? (3 ) Does the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? (4 ) Is the person unable to perform his or her former occupation? (5 ) Is the person unable to perform any other work within the economy? A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11 th Cir. 1986).5

A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological a b n o rm a litie s which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. McDaniel v. Bowen, 800 F.2d 1026 (11 th Cir. 1986), is a supplemental security income case (SSI). T h e same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited a s authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5 th Cir. 1981) (Unit A).
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T h e standard of review of the Commissioner's decision is a limited one. This court m u s t find the Commissioner's decision conclusive if it is supported by substantial evidence. 4 2 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11 th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e r a le s, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11 th Cir. 1986). [ T h e court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11 th Cir. 1987). I I I . Administrative Proceedings T h o m p s o n was 19 years old at the time of the hearing before the ALJ. (R. 275.) She c o m p le te d the tenth grade. (R. 277-78, 367.) Thompson has no prior work experience. She a lle g e s that she became disabled due to mental retardation and a seizure disorder. Following th e hearing, the ALJ concluded that Thompson's seizure disorder is a severe impairment. ( R . 26.) Next, the ALJ determined that Thompson has the residual functional capacity to p e r f o r m a full range of work at all exertional levels but with the usual seizure precautions.

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(R . 28.) Relying on the Medical-Vocational Guidelines, the ALJ concluded that there were s ig n if ic a n t jobs in the national economy that Thompson could perform. A c c o rd in g ly, the ALJ concluded that the plaintiff was not disabled. (Id.) I V . The Plaintiff's Claims T h o m p s o n asserts the following claims: (1 ) D e sp ite Thompson's pro se status, the Commissioner failed to c o m p ly with his heightened duty to develop the record despite T h o m p s o n 's prior award of benefits based on mental retardation. S p e cifica lly, Thompson contends that her waiver was ineffective a n d she was prejudiced by the ALJ's failure to develop a full a n d fair record. T h e Commissioner erred in failing to find that Thompson met or e q u a le d the requirements of Listing 12.05C despite her previous r e c e i p t of child benefits based on mental retardation and m u ltip le consistent IQ tests indicating a full scale IQ in the low 6 0 's . T h e Commissioner erred in failing to articulate any reasons for n o t crediting multiple psychologist's opinions. (R. 32.)

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(D o c . No. 19.) V . Discussion T h o m p so n raises several issues and arguments related to this court's ultimate inquiry o f whether the Commissioner's disability decision is supported by the proper legal standards a n d by substantial evidence. See Bridges v. Bowen, 815 F.2d 622 (11 th Cir. 1987). However, the court pretermits discussion of Thompson's specific arguments because the court c o n c lu d e s that the ALJ erred as a matter of law.

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T h o m p so n was unrepresented by counsel at the hearing. A claimant has a statutory rig h t, which may be waived, to be represented by counsel at a hearing before an ALJ. Brown v . Shalala, 44 F.3d 931, 934 (11 th Cir. 1995) (citing Smith v. Schweiker, 677 F.2d 826 (11 th C ir. 1982) and 42 U.S.C. § 406). The deprivation of the statutory right to counsel at a Social S e c u rity hearing is a statutory wrong and not a constitutional wrong. Graham v. Apfel, 129 F .3 d 1420, 1422 (11 th Cir. 1997) (citing Holland v. Heckler, 764 F.2d 1560, 1563 (11 th Cir. 1 9 8 5 )). Any waiver of that right must be knowingly and intelligently made. However, in o rd e r for a waiver to be effective, the claimant must be "properly apprized of [her] options c o n c ern in g representation." Smith v. Schweiker, 677 F.2d 826, 828 (11 th Cir. 1982). W h e re the right to representation has not been waived, the ALJ's obligation to d e v e lo p a full and fair record rises to a special duty. See Graham, 129 F.3d at 1422-23 (c itin g Brown, 44 F.3d at 934-35). See also Smith v. Schweiker, 677 F.2d 826, 829 (11 th Cir. 1 9 8 2 ) (When a disability claimant is unrepresented by an attorney, the duty of an ALJ to d e v e lo p a full and fair record rises to a special level). The ALJ must conscientiously probe in to , inquire of, and explore all relevant facts to elicit both favorable and unfavorable facts f o r review. Cowart v. Schweiker, 662 F.2d 731, 735 (11 th Cir. 1981). This duty is further h e ig h te n e d when the claimant suffers from a mental impairment. See Hodes v. Apfel, 61 F. S u p p . 2d 798, 811 (N.D. Ill. 1999); Fogarty v. Secretary of Health and Human Services, 690 F . Supp. 166, 169 (W.D.N.Y. 1988) (mental retardation). A serious deprivation of the right to counsel can mature into a violation of due

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process. It is not necessary to determine that the presence of counsel w o u ld necessarily have resulted in any specific benefits. See C la r k v. Schweiker, 652 F.2d 399, 404 (5 th Cir. Unit B July 1 9 8 1 ). However, there must be a showing of prejudice before it is found that the claimant's right to due process has been v io la te d to such a degree that the case must be remanded to the S e c re ta ry for further development of the record. See Brown, 44 F .3 d at 934-35. The court should be guided by whether the re c o rd reveals evidentiary gaps which result in unfairness or " c le a r prejudice." Id. G r a h a m , 129 F.3d at 1423. D u rin g the hearing before the ALJ, Thompson was obviously confused by the ALJ's q u e stio n s and relied on her mother for assistance.6 At the beginning of the hearing, the f o llo w in g discussion occurred: A L J: . . . So I'm going to tell you again, you've got the rig h t to be represented here by a lawyer or a nonl a w ye r who's familiar with our practices and p ro c e d u re s if that's what you choose. If you want m o re time to get a lawyer or non-lawyer who's f a m ilia r with our procedures, I'll give you up to 6 0 calendar days from and after today to find yo u rs e lf such a person. When that person agrees to take your case they'll call my office, we'll put yo u r case back on the docket, and then we'll have a hearing. O n the other hand, you can waive, and by waive I mean give up your right to be represented by a la w ye r or non-lawyer who's familiar with our p ra c tic e s and procedures. If you waive that right
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The court notes that Thompson's mother quit school in the eighth grade and may also suffer from a disability. (R. 250, 277.)

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w e 'll have the hearing today, but that's a decision yo u have to make. I can't make it for you. What w o u ld you like to do? [ M o th e r]: A L J: [ M o th e r]: A L J: [M o ther]: A L J: H a v e the procedure today. P a rd o n me? I would like to have the procedures today. Y o u want the hearing today? Y es, sir. Is there a reason why your daughter can't answer? S h e 's over 18 years old, why can't she answer for h e rs e lf . S h e may not understand some of the things you s a yin g . That's why I, I was her representative w h e n she was on Disability. So answer, please, M a r y.

[ M o th e r]:

[ T h o m p s o n ]: I would like to have it today. (R . 272-73.)7

Thompson became easily confused throughout the hearing. For example, when the ALJ asked Thompson about documents in her file, the following discussion occurred: ALJ: . . . Do you have any problem with me deciding your case based upon the documents in the file, together with what we talk about today? He asked you a question, Mary. What did he ask?

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[Mother]: [Thompson]:

(R. 274.) In addition, when the ALJ asked Thompson whether she completed the tenth grade, the following discussion occurred: ALJ: The file tells me you completed the tenth grade in school.

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D u rin g the proceeding, Thompson did not specifically waive her right to counsel.

Did you finish the tenth grade? [Thompson]: ALJ: [Thompson]: [Mother]: [ALJ]: [Thompson]: [ALJ]: [Thompson]: [ALJ]: No. Did you finish the ninth grade? I went to the 12th grade. You didn't complete the 12th. The 12th grade. I went to the 12th. I see. Did you graduate? No, I didn't. Did you get a certificate from being in Special Education classes? No, I didn't. Did you complete the 12th grade? No. No, sir. Did you complete the 11th grade? No, sir. Did you complete the tenth grade? No, sir. Well, I'm sorry. I'm not understanding you. If you didn't complete these grades how did you come to go to the 12th grade? They skipped me to the 12th grade.

[Thompson]: [ALJ]: [Thompson]: [Mother]: [ALJ]: [Thompson]: [ALJ]: [Thompson]: [ALJ]:

[Thompson]: (R. 277-78.)

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T h o m p so n 's statement that she "wished to have a hearing that day" is ambiguous, at best. A t no point did she indicate that she wished to proceed without counsel. Moreover, the re c o rd indicates that the Commissioner previously found that Thompson was disabled due to a "mental deficiency" or "mental retardation" on three prior occasions. Although the ALJ h a d knowledge of the Commissioner's previous findings of disability based on mental re ta rd a tio n and Thompson's mother advised him that her daughter may not have understood h is explanation, the ALJ did not ensure that Thompson's waiver was knowingly and intelligen tly made. Nothing in Thompson's testimony demonstrated Thompson's

u n d e rs ta n d in g of the consequences of waiving counsel. On this record, the court cannot c o n c lu d e that Thompson knowingly and voluntarily waived her right to be represented at the h e a ri n g . Thompson argues that this case should be remanded because the ALJ did not fulfill h is duty to fully develop the record, particularly in light of her pro se status. However, as a lre a d y explained a remand to the Commissioner is not warranted unless the plaintiff shows p re ju d ic e . Kelley v. Heckler, 761 F.2d 1538 (11 th Cir. 1985). T h i s at least requires a showing that the ALJ did not have all of the relevant e v id e n c e before him in the record (which would include relevant testimony f ro m claimant), or that the ALJ did not consider all of the evidence in the re c o rd in reaching his decision. See Smith, 677 F.2d at 830 (relevant inquiry is whether the record reveals evidentiary gaps which result in unfairness or clea r prejudice). Id . at 1540. T h e court concludes that Thompson was prejudiced because the ALJ either failed to 10

co n side r all of the evidence in the record or did not have all of the relevant evidence before h im when reaching his decision. In his brief, the Commissioner admits that "it is unclear w h e th e r the ALJ actually considered the evidence from the Plaintiff's earlier application." (D o c. No. 20, p. 14.) Thompson initially filed an application for supplemental security income benefits u n d e r Title XVI as a child and was found disabled on December 17, 1992, with an onset date o f September 1, 1992. (R. 50.) The Commissioner specifically found that Thompson met L is tin g 112.10A2 based on a primary diagnosis of autistic disorder and other pervasive d e v e lo p m e n ta l disorder and "evidence in the file reveal[ing] severe speech problem and m e n ta l deficiency." (Id.) Upon subsequent periodic review of her medical condition in 1992, 1 9 9 8 , and 2002, the Commissioner determined that Thompson's benefits should continue due to a primary diagnosis of mental retardation. (R. 56, 117.) T h o m p s o n turned 18 years old on December 6, 2005. Shortly thereafter, the

C o m m iss io n e r reconsidered whether Thompson was entitled to disability benefits. A state a g e n cy disability officer determined that Thompson was no longer disabled as of March 1, 2 0 0 6 based on a redetermination of disability "under the rules for adults who file new a p p lic a tio n s ." 8 (R. 26.) After conducting a hearing, the ALJ also determined that Thompson w a s no longer entitled to disability insurance benefits pursuant to Title II of the Social S e c u rity Act, 42 U.S.C. § 401 et seq. as of December 1, 2005. (R. 32.) In addition, the ALJ

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See 20 C.F.R § 416.987.

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c o n c l u d e d that, with respect to Thompson's request for supplemental insurance benefits, T h o m p s o n 's disability ended on March 1, 2006. (Id.) The medical records indicate that, on November 6, 1992, Dr. Don Crook, Jr., a p syc h o lo g ist, conducted testing and an examination and concluded that the "evaluation is s u g g e s tin g of an individual functioning within the range of mild mental retardation." (R. 2 2 8 .) The doctor specifically noted that Thompson "can be expected to have significant d if f ic u lty with understanding, memory, concentration and persistence at tasks." (Id.) On May 18, 1998, Dr. Robert J. Nolan, a consultative psychologist, conducted an e v a lu a tio n , including administration of the Wechsler Intelligence Scale for Children. (R. 2 3 2 .) Thompson's scores indicated a verbal IQ of 62, a performance IQ of 64, and a full s c a le IQ of 60. (R. 232.) Dr. Nolan's diagnostic impression was that Thompson suffered fro m mild mental retardation. (R. 233.) On November 28, 2001, Dr. J. Walter Jacobs, a consultative psychologist, interviewed T h o m p s o n and conducted additional testing. (R. 250-253.) On the WISC-III, Thompson rec eive d a verbal IQ of 63, a performance IQ of 66, and a full scale IQ of 62. (R. 252.) Dr. J a c o b s also noted that Thompson performed poorly on tests of abstract reasoning, both verbal a n d visual. (Id.) Dr. Jacobs concluded that the intellectual assessment indicated Thompson w a s functioning in the lower reaches of the mild range of mental retardation and that her a b ility to function in an age appropriate manner, cognitively, communicatively, socially, ad ap tiv ely, and behaviorally were significantly impaired. (R. 253.) When determining that Thompson's intellectual functioning is not disabling, the ALJ 12

re lie d on an evaluation conducted by Dr. Stephen D. Bailey, a consultative psychologist, on Ja n u a ry 26, 2006. Dr. Bailey noted that Thompson's concentration was poor and that, a lth o u g h "she appeared to be attending to all questions and seemed bright enough to answer th e questions offered, she simply shrugged her shoulders and gave no answer. She did a p p e a r to be attentive to the examiner; eye contact suggested that she was cognizant of all q u estio n s. Many of the questions offered by the examiner were either unanswered or were s im p ly answered with an `I don't know'. . . ." (R. 368.) The psychologist further determined th a t Thompson's fund of information and abstractions seemed poor and that her judgment a n d insight were questionable. (Id.) Although testing indicated Thompson has a verbal IQ o f 65, a performance IQ of 63, and a full scale IQ of 61, Dr. Bailey determined: M a ry Denise Thompson's current cognitive functioning as defined in th e WAIS-III administration fall within a range which is considered that of M ild Mental Retardation. However, as noted above, the examiner does not b e lie v e that Ms. Thompson gave her best or fullest efforts to the examination p r o c e d u re . (R . 368-69.) Dr. Bailey also noted that he was "uncertain as to the correct measure or status o f [] Thompson's intelligence." (R. 368.) Thus, the court is left to guess whether

T h o m p so n ' s intellectual functioning is disabling. This court cannot conclude that the ALJ's reliance on Dr. Bailey's "uncertainty" about Thompson's intelligence level when determining th a t Thompson is not disabled is supported by substantial evidence. M o reo v er, the medical records indicate that Dr. Bailey was not provided Thompson's p rio r psychological evaluations or school records prior to the evaluation in January 2006.

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(R . 371.) Although the Commissioner argues that the prior IQ results and evaluations are s ta le , "[m]ental retardation is not normally a condition that improves as an affected person a g e s. . . . Rather a person's IQ is presumed to remain stable over time in the absence of any e v id e n c e of a change in a claimant's intellectual functioning.'" Hodges v. Barnhart, 276 F .3 d 1265, 1268-69 (11 th Cir. 2001) (quoting Muncy v. Apfel, 247 F.3d 728, 734 (8 th Cir. 2 0 0 1 )). Given that Thompson's IQ scores as a child and teenager were similar to her scores in January 2006, it is possible that information concerning the claimant's prior diagnoses of a n autistic disorder and mental retardation, other test results, and documentation indicating T h o m p s o n attended special education classes throughout most of her schooling would have a ss is te d Dr. Bailey when assessing Thompson's intelligence level. Because Thompson was p r e v io u s ly found to suffer from mental retardation and represented herself pro se, the circu m stan ce s of this case demand that the ALJ take additional steps to see that the record is fully developed.9 It is error for the ALJ to fail to obtain additional testing or otherwise d e v e lo p the evidence, if that information is necessary to make an informed decision. See H o lla d a y v. Bowen, 848 F.2d 1206, 1209 (11 th Cir. 1988). On remand, the Commissioner m u s t insure that a consultative psychologist or psychiatrist is provided all relevant evidence, in c lu d in g prior test results and school records, before making a determination as to

The court recognizes that age-18 re-determinations are treated as new applications and, therefore, the ALJ is not required to presume disability pursuant to the rules in 20 C.F.R. § 416.994.

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T h o m p s o n 's intellectual functioning.1 0 T h e court likewise cannot conclude that the ALJ's finding that Thompson was a sen ior in high school with average grades is supported by substantial evidence. Although Dr. W illia m Grant Watson, Jr., a neurologist treating Thompson's seizure disorder, noted that T h o m p s o n was "a senior in high school making average grades" (R. 366), substantial e v id e n c e in the record indicates that Thompson received special education services th ro u g h o u t most of her schooling and completed the tenth grade before dropping out of s c h o o l.1 1 (R. 58, 141, 145-146, 173, 182, 192, 195, & 367.) Thus, the ALJ's determination that Thompson's intellectual functioning is not disabling because Thompson attended twelfth g ra d e with average grades is based on incorrect information and is not supported by s u b s ta n tia l evidence. The ALJ also failed to specify the weight afforded to Dr. Crook's, Dr. Nolan's, and D r . Jacobs' opinions. In assessing the medical evidence in a Social Security case, the ALJ is "required to state with particularity the weight he gave the different medical opinions and th e reasons therefor." Shafarz v. Bowen, 825 F.2d 278, 279 (11 th Cir. 1987). However, the w e ig h t afforded to a physician's conclusory statements depends upon the extent to which th e y are supported by clinical or laboratory findings and are consistent with other evidence

In addition, the Commissioner on remand should consider how the side effects of Thompson's seizure medication together with her other impairments would affect Thompson's intellectual functioning. The court notes that a teacher questionnaire completed in October 2001 indicates that, although Thompson went to a "regular classroom," she received special education services in high school. (R. 182192.)
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o f the claimant's impairment. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11 th Cir. 1986). T h e ALJ may "reject the opinion of any physician when the evidence supports a contrary c o n c lu s io n ." Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11 th Cir. 1983). See also S h a f a r z, supra. When summarizing the medical records, the ALJ accepted Dr. Bailey's a ss e ss m e n t that Thompson was malingering during the evaluation and ignored medical re c o rd s from other consultative physicians indicating that the claimant suffers from mental re ta rd a tio n . The ALJ did not state with particularity the weight he gave to any of the other c o n su ltativ e physicians' medical opinions or provide specific reasons for rejecting their o p in io n s . The ALJ is not free to simply ignore medical evidence, nor may he pick and c h o o se between the records selecting those portions which support his ultimate conclusion. B e c au s e the ALJ failed to assign weight to the other consultative physician's opinions or c o n sid e r prior medical evidence establishing that Thompson suffered from mental re ta rd a tio n , this court is unable to determine whether the ALJ's decision is supported by s u b s ta n tia l evidence. B e c au s e the ALJ failed to consider prior medical records indicating Thompson su ff ere d from mental retardation, failed to specify his reasons for rejecting Dr. Crook's, Dr. N o lan 's, and Dr. Jacobs' opinions, and failed to fully develop the record with respect to T h o m p s o n 's intellectual functioning, the court concludes that Thompson's "right to due p roc ess has been violated to such a degree that the case must be remanded to the Secretary f o r further development of the record." Brown, 44 F.3d at 935.

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C o n s e q u e n tly, on remand, the Commissioner should: 1. C o n s id e r whether Thompson should be provided counsel th r o u g h o u t the proceedings. F u r th e r develop the record and clarify inconsistencies between th e consultative examiners' opinions in 1992, 1998, and 2002 a n d Dr. Bailey's opinion in 2006 by providing all relevant m e d ic a l records to a consultative psychologist or other mental h e a lth expert and/or conducting additional testing. C o n s id e r and specify his reasons, if any, for discounting the o p in io n s of Dr. Crook, Dr. Jacobs, and Dr. Bailey. C o n s id e r how the side effects of Thompson's seizure medication to g e th e r with her other impairments would affect Thompson's in te lle c tu a l functioning

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V . Conclusion A c c o rd in g ly, the court concludes that this case be reversed and remanded to the C o m m is s io n e r for further proceedings consistent with this opinion. A separate order shall accompany this opinion. D o n e this 28 th day of September, 2010.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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