                                                                                United States Court of Appeals
                                                                                         Fifth Circuit
                                                                                       F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                      September 29, 2003
                                FOR THE FIFTH CIRCUIT
                                                                                   Charles R. Fulbruge III
                                  _________________________                                Clerk
                                        No. 02 – 60610
                                    SUMMARY CALENDAR
                                  _________________________

JASON A. NORDEN

                       Plaintiff - Appellant

   v.

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY

                       Defendant - Appellee

______________________________________________________________________________

                     Appeal from the United States District Court
                        for the Northern District of Mississippi
                                  (01-CV-113-EM)
______________________________________________________________________________

Before REYNALDO G. GARZA, DeMOSS, and CLEMENT, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

        In this appeal we review the magistrate judge's decision denying Jason Norden’s

(hereinafter, “Norden”) application for Social Security disability benefits. For the following

reasons, we affirm the magistrate judge’s decision.

                                                 I.

                       FACTUAL AND PROCEDURAL BACKGROUND


        1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.

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       After Norden’s initial application for disability benefits was denied, Norden petitioned for

reconsideration. When he was again denied, Norden asked for a hearing before an administrative

law judge (hereinafter, “ALJ”). Norden claims that the ALJ violated his due process rights by not

advising him of his right to counsel and by letting Norden’s grandmother represent him at the

hearing. Norden further argues that the ALJ failed to fully develop the record at the hearing by

failing to order physical or mental examinations of Norden. Finally, Norden argues that the

decision denying him disabled status is not supported by substantial evidence. Both the Social

Security Appeals Council and the magistrate judge upheld the ALJ’s decision. Norden then filed

a complaint in the district court and both parties consented to proceed before a magistrate. The

magistrate affirmed the Social Security Commissioner’s decision. This appeal followed.

                                                 II.

                             DUE PROCESS RIGHT TO COUNSEL

       A claimant has a statutory right to counsel at a Social Security hearing. 42 U.S.C. § 406.

The claimant may, however, waive this right if given sufficient information to enable him to decide

intelligently whether to retain counsel or proceed pro se. Clark v. Schweiker, 652 F.2d 399, 403-

404 (5th Cir. 1981). “Sufficient information” includes explanations of the possibility of free

counsel, a contingency agreement, and the limitation on attorney’s fees to 25% of past due

benefits awarded. Id.

       Norden received written notices of his right to representation prior to the hearing. At the

hearing, the ALJ again informed Norden of his right to representation. Norden knowingly and

voluntarily waived his right to representation and he requested that his grandmother represent him

at the hearing.


                                                 -2-
       Norden’s argument that the ALJ should not have let his grandmother represent him is

without support. The record indicates that Norden’s grandmother understood the nature of the

proceedings and the questions asked her. Thus, Norden has failed to prove that the ALJ denied

his due process right to counsel.

                                                III.

               DUE PROCESS RIGHT TO DEVELOPMENT OF THE RECORD

       As a claimant, Norden had the burden in establishing a disability. Anderson v. Sullivan,

887 F.2d 630, 634 (5th Cir. 1989). Where a claimant is unrepresented at the hearing, it is the

ALJ’s duty to develop a full and fair record of all relevant facts. Kane v. Heckler, 731 F.2d 1216,

1219-20 (5th Cir. 1984). The decision to require a consultative exam is within the discretion of

the ALJ. Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 1991). An examination is only required

when the ALJ cannot otherwise make a disability determination. Anderson, 887 F.2d at 634.

       If the ALJ is guilty of failing to develop the record, the claimant must still show prejudice

in the form of evidence before the district court that would have altered the outcome. Kane, 731

F.2d at 1219-20. Norden has provided insufficient evidence that further development of the

record by the ALJ would have led to a different decision. His isolated comments about mental

impairment did not raise a suspicion of a mental impairment that would require the ALJ to order a

consultative mental examination. Leggett v. Charter, 67 F.3d 558, 566 (5th Cir. 1995).

                                                IV.

                                    EVIDENCE OF DISABILITY

       Our review of the decision denying Norden disability benefits is limited to a determination

of whether the decision is supported by substantial evidence and whether the proper legal


                                                -3-
standards were used in evaluating the evidence. Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.

1990); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). This court may neither reweigh the

evidence nor substitute its judgment for that of the Social Security commissioner or the ALJ.

Villa, 895 F.2d at 1022.

       To determine whether a disability exists for the purposes of the Social Security Act, the

ALJ must weigh the following elements of proof: 1) objective medical facts; 2) diagnoses and

opinions of treating and examining physicians; 3) the claimant’s subjective evidence of pain and

disability; and 4) the claimant’s age, education, and work history. Wren v. Sullivan, 926 F.2d

123, 126 (5th Cir. 1991). The ALJ’s evaluation of the credibility of the claimant’s subjective

complaints is entitled to judicial deference if it is supported by substantial evidence. Villa, 895

F.2d at 1024.

       After weighing all of the evidence, the ALJ determined that Norden’s testimony

concerning his impairments and their impact on his ability to work was only partially credible in

light of Norden’s daily activities and his medical history. The objective medical evidence in the

record was not consistent with Norden’s complaints of pain and physical limitations. The ALJ’s

decision was based upon the proper legal standard and supported by substantial evidence. Ripley,

67 F.3d at 555.

                                                  V.

                                           CONCLUSION

       For the foregoing reasons, we affirm the magistrate judge’s decision.




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