                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                    F I L E D
                  IN THE UNITED STATES COURT OF APPEALS             June 16, 2004
                          FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                                                                       Clerk

                               No. 03-21117
                             Summary Calendar



     LINDA MCKINNEY,

                                               Plaintiff-Appellant,

            versus


     JO ANNE B. BARNHART,
     COMMISSIONER OF SOCIAL SECURITY,

                                               Defendant-Appellee.




            Appeal from the United States District Court
                 for the Southern District of Texas
                        USDC No. H-02-CV-1614



Before GARWOOD, DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Linda McKinney appeals the district court’s summary judgment

affirming   the    denial   of   her   application   for   Social   Security

disability benefits.



     McKinney, represented by counsel before the district court and


     *
      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opinion should not be published and is not precedent except under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.
on this appeal, argues that she did not knowingly and intelligently

waive her right to be represented by counsel at her administrative

hearing; that she was prejudiced by the lack of counsel at her

hearing; that the administrative law judge’s (ALJ) determination of

her mental impairments was not supported by substantial evidence;

and that the ALJ failed to consider the side effects of her

medication, Xanax.

     This court reviews the Social Security Commissioner’s decision

to determine whether it is supported by substantial evidence and

whether the proper legal standards were applied.   Harris v. Apfel,

209 F.3d 413, 417 (5th Cir. 2000).

     Even assuming, arguendo only, McKinney did not knowingly and

intelligently waive her right to be represented by counsel at her

administrative hearing, she has not shown that she was prejudiced

by her lack of counsel.1   See Castillo v. Barnhart, 325 F.3d 550,

552 (5th Cir. 2003); Clark v. Schweiker, 652 F.2d 399, 404 (5th

Cir. 1981).   Specifically, she has not pointed to or adduced

evidence that would have been adduced by counsel and that could

have changed the outcome of her hearing.   Id.

     McKinney is incorrect that the ALJ’s determination of her



     1
      The magistrate judge, whose report and recommendation the
district court adopted, determined that McKinney had been
adequately advised of her right to counsel at the hearing before
the ALJ and had knowingly and intelligently waived that right, and
that even if she had not so waived it she had failed to show any
prejudice from the absence of counsel.

                                 2
limitations on her ability to work were not based on clinical

findings as he stated his determination of her residual functioning

capacity was based upon, inter alia, the reports of Dr. Larson and,

to a lesser extent, Dr. Lehman.

     In addition, contrary to McKinney’s assertions, the record

does not indicate that the ALJ failed to fully develop the record

with respect to the side effects of her taking Xanax or in

developing    the   hypothetical   questions     regarding    her   residual

functional capacity to the vocational expert. See Brock v. Chater,

84 F.3d 726, 728 (5th Cir. 1996).              McKinney’s own testimony

established that she did not take Xanax during the day and that she

did not nap during the day.        Moreover, after hearing the ALJ’s

hypothetical concerning residual functional capacity for McKinney,

which included the limitations, among others, that her employment

not involve work around unprotected heights or moving or dangerous

machinery or with unplanned or unscheduled events or more than

occasional relation to the public, the vocational expert stated

that McKinney could perform certain light or sedentary jobs, which

included the stated limitation.

     Finally, McKinney argues that the ALJ’s determination of her

mental impairments is not supported by substantial evidence because

he failed to consider under 20 C.F.R. § 404.1545(c) whether a

limited ability to carry out certain mental activities, such as

limitations    in   understanding,       remembering,   and   carrying   out


                                     3
instructions, and in responding appropriately to supervision, co-

workers, and work pressures in a work setting, might reduce her

ability to do past work and other work.                The ALJ, however,

specifically stated that his determination of McKinney’s RFC was

based in part on the report of Dr. Larson, which addressed these

potential limitations.

     As McKinney has failed to show that the ALJ’s decision was not

based on the proper legal standards or that it was not supported by

substantial   evidence,   Harris   v.   Apfel,   209   F.3d   at   417,   the

district court’s judgment is

                               AFFIRMED.




                                    4
