                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                        June 28, 2007
                              FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                         Clerk of Court

    M ELISSA SIM IEN, M other and Next
    Friend to Jannai Simien, a minor child,

               Plaintiff-Appellant,
                                                           No. 06-5153
      v.                                            (D.C. No. 05-CV-15-FHM )
                                                           (N.D. Okla.)
    M ICH AEL J. ASTRU E, *
    Commissioner, Social Security
    Administration,

               Defendant-Appellee.



                              OR D ER AND JUDGM ENT **


Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.


           M elissa Simien seeks judicial review of the Commissioner’s determination

that her minor child, Jannai Simien, does not qualify for Supplemental Security




*
     Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this action.
**
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Income (SSI) disability. W e have jurisdiction under 42 U.S.C. § 405(g) and

28 U.S.C. § 1291, and we reverse and remand for further proceedings.

      Jannai was awarded SSI benefits as of M arch 1, 1995. Congress amended

the statutory standards for children seeking SSI benefits in 1996, and the

Commissioner found that under the new standards Jannai’s limitations no longer

met the definition of disability for children. After numerous delays, an

administrative law judge (ALJ) held a hearing on July 1, 2004. He determined

that Jannai did not have impairments that functionally equaled the listings under

20 C.F.R. § 416.926a. See Briggs ex rel. Briggs v. M assanari, 248 F.3d 1235,

1237 n.1 (10th Cir. 2001) (describing functional equivalency). Under that

section, an impairment “must result in ‘marked’ limitations in two domains of

functioning or an ‘extreme’ limitation in one domain.” 20 C.F.R. § 416.926a(a).

“These domains are broad areas of functioning intended to capture all of what a

child can or cannot do.” Id. § 416.926a(b)(1). They include: “(i) “Acquiring and

using information; (ii) Attending and completing tasks; (iii) Interacting and

relating with others; (iv) M oving about and manipulating objects; (v) Caring for

yourself; and, (vi) Health and physical well-being.” Id. The ALJ found that

Jannai had marked limitations in interacting and relating with others, less than

marked limitations in attending and completing tasks, and no limitations in the

other four domains. He concluded that Jannai was no longer under a disability at




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any time after July 1, 1997. The Appeals Council denied review and the district

court affirmed the Commissioner’s decision.

      W e review the district court’s decision de novo to determine whether the

agency’s decision is free of legal error and supported by substantial evidence.

See Briggs, 248 F.3d at 1237. M rs. Simien raises two issues on appeal: (1) that

the ALJ failed to consider all of the evidence; and (2) that the ALJ failed to

adequately develop the record and provide sufficient assistance to Jannai, who

was not represented by counsel. She first argues that the ALJ ignored the

evidence of Jannai’s diagnoses other than attention deficit hyperactivity disorder

(“ADHD”). 1 She points out that he was also diagnosed with oppositional defiant

disorder (“ODD”), see App., vol. 1 at 192; impulse control disorder, id. at 194,

200; and intermittent explosive disorder, see id. Jannai’s most recent medical

records also include provisional diagnoses of “Bipolar mixed, psychotic features”

and ODD, see id., vol. 2 at 331, and final diagnoses of mood disorder and conduct

disorder, see id. at 332.

1
       The Commissioner argues that M rs. Simien waived this argument by failing
to present it to the district court. See Crow v. Shalala, 40 F.3d 323, 324
(10th Cir. 1994). “How ever, we retain discretion to consider issues for the first
time on appeal based on the facts of the individual case.” Ross v. U.S. M arshal
for E. Dist. of Okla., 168 F.3d 1190, 1195 n.5 (10th Cir. 1999). W e note that
M rs. Simien first raised the issue of Jannai’s bipolar diagnosis in her request for
review by the Appeals Council. See App., vol. 1 at 7. M oreover, the district
court acknow ledged that Jannai alleged disability based on both ADHD and OD D ,
and that he had been diagnosed as being bipolar. See id., vol. 2 at 423. W hether
the ALJ adequately considered Jannai’s other diagnoses is a question of law, and
we exercise our discretion to consider it. See Ross, 168 F.3d at 1195 n.5.

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      The ALJ referenced the Commissioner’s previous determination of

disability based on Jannai’s diagnoses of ADHD and ODD, as well as evidence of

both of those disorders in 1995, prior to the Commissioner’s redetermination. See

id., vol. 1 at 11, 12. The Commissioner argues that these references to ODD, in

conjunction with the ALJ’s finding that Jannai had marked limitations in the

domain of interacting and relating with others, demonstrate that he adequately

considered all of Jannai’s various diagnoses. Although the ALJ must consider all

the evidence, he is not required to discuss every piece of evidence. See Clifton v.

Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). But “the A LJ . . . must discuss

the uncontroverted evidence he chooses not to rely upon, as well as significantly

probative evidence he rejects.” Id. at 1010. Jannai’s other diagnoses qualify as

significantly probative evidence because the ALJ must assess the combined effect

of all of a claimant’s medically determinable impairments. See Salazar v.

Barnhart, 468 F.3d 615, 621 (10th Cir. 2006) (reversing where ALJ failed to

consider claimant’s diagnosis of borderline personality disorder). Here, the ALJ

failed to even mention several of Jannai’s diagnoses. Therefore, we agree with

M rs. Simien that the record does not demonstrate that the ALJ considered all of

the evidence in this case. See Clifton, 79 F.3d at 1009.

      M rs. Simien also contends the ALJ ignored the evidence of Jannai’s Global

A ssessm ent of Functioning (“G AF”) ratings, which ranged from 30 to 50. A GA F

rating reflects a clinician’s judgment of the patient’s “overall level of

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functioning.” Am. Psychiatric Ass’n, Diagnostic and Statistical M anual of

M ental D isorders: D SM -IV -TR 32 (4th ed. Text Revision 2000). A GAF rating in

the range of 21 to 30 indicates that the patient’s

      [b]ehavior is considerably influenced by delusions or hallucinations
      OR serious impairment in communication or judgment (e.g.,
      sometimes incoherent, acts grossly inappropriately, suicidal
      preoccupation) O R inability to function in almost all areas (e.g.,
      stays in bed all day; no job, home, or friends).

Id. at 34. A patient whose GAF rating is in the range of 41 to 50 has “[s]erious

symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting)

OR any serious impairment in social, occupational, or school functioning (e.g., no

friends, unable to keep a job).” Id. The ALJ was tasked with determining the

level of Jannai’s functioning within the six domains, yet he made no mention of

Jannai’s GAF ratings. W e agree with M rs. Simien that he could not simply ignore

this evidence. See Clifton, 79 F.3d at 1010.

      M rs. Simien next argues that the ALJ failed to adequately develop the

record in this case or to provide adequate assistance to Jannai. An A LJ has a

heightened duty to develop the record when a claimant is not represented by

counsel. M usgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). “The duty

is one of inquiry, ensuring that the ALJ is informed about facts relevant to his

decision and learns the claimant’s own version of those facts.” Henrie v. U.S.

Dep’t of Health & Hum an Servs., 13 F.3d 359, 361 (10th Cir. 1993) (quotation

and brackets omitted). “The length, or brevity, of a benefits hearing is not

                                          -5-
dispositive of whether or not the ALJ met the heightened obligation to fully

develop the record in a case where the claimant is unrepresented.” M usgrave,

966 F.2d at 1374. Rather, the issue is whether the ALJ asked sufficient questions

in order to ascertain answers to the legally relevant questions. See id. at 1374-75.

      M rs. Simien contends the extremely brief hearing in this case was

insufficient to allow the ALJ to answer all of the inquiries required by the

regulations, namely:

             (i) W hat activities are you able to perform?

             (ii) W hat activities are you not able to perform?

             (iii) W hich of your activities are limited or restricted
             compared to other children your age who do not have
             impairments?

             (iv) W here do you have difficulty with your activities–at
             home, in childcare, at school, or in the community?

             (v) Do you have difficulty independently initiating,
             sustaining, or completing activities?

             (vi) What kind of help do you need to do your activities,
             how much help do you need, and how often do you need
             it?

20 C.F.R. § 416.926a(b)(2). The Commissioner maintains the hearing was

adequate because the written record is extensive and the ALJ gave both Jannai

and M rs. Simien an opportunity to describe the problems he was experiencing and

to produce any additional records. See Glass v. Shalala, 43 F.3d 1392, 1396

(10th Cir. 1994) (holding duty of inquiry satisfied in light of documentary record

                                          -6-
and claimant’s extensive testimony on nature of her impairments and their impact

on her physical abilities). In contrast to the hearing in Glass, the ALJ’s inquiries

regarding Jannai’s difficulties w ith relevant activities in and out of school were

extremely limited or nonexistent. Jannai’s and M rs. Simien’s combined testimony

spans less than five transcript pages. And, as M rs. Simien points out, Jannai is a

child with at least one severe mental impairment who cannot be expected to

advocate for himself. The record also reflects that M rs. Simien was not capable

on her own, without appropriate assistance from the ALJ, of articulating the

effects of Jannai’s medical problems. W e conclude that the hearing in this case

failed to sufficiently address all of the required inquiries, in light of the

limitations of Jannai and M rs. Simien, and we remand for a new hearing before

the ALJ. W e also note that there are no medical records from the period between

December 1999 and M ay 2004 in the administrative record and that it was during

this time Jannai was apparently diagnosed as bipolar. App., vol. 2 at 316; see

also id. at 396 (at short hearing in A ugust 2003 a different ALJ noted there were

medical records missing from the file); id. at 399 (the ALJ said “I don’t think w e

have everything we need.”). W e suggest that the Commissioner attempt to obtain

the missing records on remand.

      Finally, M rs. Simien contends the ALJ should have ordered a consultative

examination of Jannai or called a medical expert to testify. An ALJ “has broad

latitude in ordering consultative examinations,” Hawkins v. Chater, 113 F.3d

                                           -7-
1162, 1166 (10th Cir. 1997), and in seeking opinions of medical experts, see

20 C.F.R. 416.927(f)(2)(iii) (providing that ALJ may consider opinions from

medical experts on nature and severity of impairments). In light of our remand

for a new hearing, and to allow the ALJ to consider the evidence of Jannai’s other

diagnoses and his G AF ratings, we leave to the ALJ the determination whether to

order a consultative examination or to obtain evidence from a medical expert

witness regarding the nature and severity of Jannai’s impairments as they relate to

his ability to function in the six domains. 2

      W e REVERSE the judgment of the district court and REM AND this case to

the district court with directions to remand to the Commissioner for further

proceedings consistent with this order and judgment.



                                                     Entered for the Court



                                                     Stephanie K. Seymour
                                                     Circuit Judge




2
       W e note that in prior hearings scheduled by or held before other A LJs in
this case, medical experts were requested to testify. See, e.g., App., vol. 2 at 389
(medical expert testified at hearing in 2000 that “the information in the file is not
sufficient . . . to give an opinion at this time”); id. at 391 (ALJ reserves decision
pending psychiatrist evaluation of Jannai). That evaluation was apparently not
completed.

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