                                                         [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 10-10390                ELEVENTH CIRCUIT
                          Non-Argument Calendar               JUNE 29, 2010
                        ________________________               JOHN LEY
                                                                CLERK
                    D.C. Docket No. 5:08-cv-00389-GRJ

MELISSA A. COVEN,

                                                          Plaintiff - Appellant,

                                   versus

COMMISSIONER OF SOCIAL SECURITY,

                                                         Defendant - Appellee.

                       ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                       ________________________

                               (June 29, 2010)

Before DUBINA, Chief Judge, HULL and FAY, Circuit Judges.

PER CURIAM:
      Appellant Melissa A. Coven appeals the district court’s order affirming the

Commissioner’s denial of her application for supplemental social security income

(“SSI”), 42 U.S.C. § 1383(c)(3), based on her alleged disability due to a back

problem, bladder and cervix problems, degeneration of her spine and narrowing of

the discs, high blood pressure, and asthma. On appeal, Coven argues that the

Administrative Law Judge (“ALJ”) reversibly erred in failing to elicit a knowing

and intelligent waiver of her right to representation. In addition, Coven argues

that the ALJ erred in failing to develop the administrative record adequately

because he did not obtain mental-health records related to her alleged suicide

attempt.

                                         I.

      Coven first argues that the ALJ committed reversible error by failing to

elicit from her a knowing and intelligent waiver of her right to representation.

Coven does not dispute, however, that she received three notices collectively

advising her that she had a right to representation, could obtain free representation,

and could not be assessed a fee for representation absent the Commissioner’s

approval. She also does not dispute that she executed a written waiver of her right

to representation during the administrative hearing after the ALJ reminded her that

she could obtain representation.

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      We review a Commissioner’s decision to determine whether “it is supported

by substantial evidence and based on proper legal standards.” Crawford v.

Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004).

      We have recognized that “[a] Social Security claimant has a statutory right,

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

Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Pursuant to 42 U.S.C.

§ 406, the Commissioner of Social Security is required to “notify each claimant in

writing, . . . of the options for obtaining [attorney representation] in presenting

their cases before the Commissioner of Social Security . . . [and] of the availability

to qualifying claimants of legal services organizations which provide legal

services free of charge.” 42 U.S.C. § 406(c); see 42 U.S.C. § 1383(d) (stating that

the provisions of § 406, which address old age, survivors and disability insurance,

also apply to SSI). Where a claimant has not been adequately informed of her

statutory right, however, her waiver is not “knowingly and intelligently” made.

Smith v. Schweiker, 677 F.2d 826, 828 (11th Cir.1982) (stating that “[a] claimant

cannot knowingly and intelligently waive [her] statutory right to counsel when

[she] is not adequately informed of it either in a prehearing notice or at [her]

hearing”). “The deprivation of the statutory right to counsel at a Social Security

hearing is a statutory wrong, not a constitutional wrong.” Graham, 129 F.3d

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at 1422.

         We conclude from the record that the ALJ did not err because the record

shows that Coven was advised of, and understood, her right to representation and

knowingly and voluntarily waived that right. Accordingly, we affirm as to this

issue.

                                          II.

         Coven next argues that the ALJ failed to satisfy his duty to “scrupulously

and conscientiously probe into” the relevant facts surrounding her alleged suicide

attempt. To this end, she states that she testified during the administrative hearing

on January 9, 2007, that in October 2006, she was taken to, and stayed for 12

hours at, a mental health center after her mother contacted the police and reported

that Coven had attempted to commit suicide.

         “Because a hearing before an ALJ is not an adversary proceeding, the ALJ

has a basic obligation to develop a full and fair record.” Graham, 129 F.3d

at 1422. However, if the right to counsel has not been waived, the ALJ is under a

“special duty” to develop a full and fair record by conscientiously probing into all

relevant facts. Brown v. Shalala, 44 F.3d 931, 934-35 (11th Cir. 1995). This

special duty “requires, essentially, a record which shows that the claimant was not

prejudiced by lack of counsel,” but not that “the presence of counsel would

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necessarily have resulted in any specific benefits in the handling of the case before

the ALJ.” Id. (internal quotation marks omitted). Regardless of whether the

claimant has waived her right to representation, “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.” Id.; see Kelley v. Heckler, 761 F.2d 1538,

1540 n.2 (11th Cir. 1985) (noting that “a more specific showing of prejudice” is

required when the right to counsel has not been waived).

      Prejudice “at least requires a showing that the ALJ did not have all of the

relevant evidence before him in the record . . . or that the ALJ did not consider all

of the evidence in the record in reaching his decision.” Kelley, 761 F.2d at 1540.

“The court should be guided by whether the record reveals evidentiary gaps which

result in unfairness or clear prejudice.” Graham, 129 F.3d at 1423 (internal

quotation marks omitted). “The lack of medical and vocational documentation

supporting an applicant’s allegations of disability is undoubtedly prejudicial to a

claim for benefits.” See Brown, 44 F.3d at 935-36 (holding that prejudice existed

when the ALJ failed to obtain treatment records about which the claimant testified,

agreed to get a rehabilitation report, but failed to do so, and failed to question an

available witness after the claimant had “great difficulty” explaining how her

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ailments prevented her from working); but see Kelley, 761 F.2d at 1540-41

(holding that the claimant failed to show prejudice where he made no allegations

that the record as a whole was incomplete or that additional favorable evidence

would have been offered and the ALJ’s opinion was “quite thorough”).

       We conclude from the record that the ALJ did not fail to develop the

administrative record adequately because the ALJ thoroughly inquired into the

circumstances surrounding Coven’s alleged suicide attempt, the incident was

unrelated to Coven’s claimed inability to work, and the record contained sufficient

information for the ALJ to make an informed decision. Accordingly, we affirm as

to this issue.

                                        III.

       For the aforementioned reasons, we affirm the district court’s order

affirming the Commissioner’s denial of Coven’s application for SSI benefits.

       AFFIRMED.




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