           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                             May 1, 2009

                                     No. 08-30986                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



MORRIS C JOHNSON

                                                   Plaintiff - Appellant
v.

MICHAEL J ASTRUE, COMMISSIONER OF SOCIAL SECURITY

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:07-CV-601


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Morris Johnson appeals the district court’s affirmance of an administrative
decision that he was ineligible for Social Security disability benefits. Johnson
argues that his waiver of his right to counsel was invalid and that the
administrative law judge (“ALJ”) misapplied the five-step analysis that
determines whether a claimant is disabled. We REVERSE and REMAND.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-30986



                               I. BACKGROUND
      Johnson filed an application for Social Security disability benefits in
December 2005, alleging disability since May 2005 due to back and kidney
problems and to diabetes. After Johnson’s claims were denied, he requested a
hearing before an ALJ. Johnson had secured legal representation, but in August
2006, Johnson appeared without his attorney. The ALJ questioned Johnson on
whether he wanted to continue. After much equivocation, Johnson agreed to
proceed without his lawyer.
      The ALJ determined that Johnson was not disabled. Though Johnson
could not return to his past occupations, the ALJ found that jobs existed in
significant numbers in the national economy that Johnson could perform.
Johnson appealed the ALJ’s decision to the Appeals Council, which denied his
request for review and adopted the ALJ’s decision as the Commissioner’s.
      Johnson then appealed to the district court, which affirmed the ALJ’s
decision on recommendation from the magistrate judge. Johnson now appeals
here, arguing that (1) he did not validly waive his right to counsel and (2) the
ALJ improperly found that he was not disabled without testimony from a
vocational expert.
                                II. DISCUSSION
      On review of an order such as this, “we consider only whether the
Commissioner applied the proper legal standards and whether substantial
evidence in the record supports the decision to deny benefits.” Audler v. Astrue,
501 F.3d 446, 447 (5th Cir. 2007). If substantial evidence supports the findings
of fact, the findings are conclusive.        42 U.S.C. § 405(g).     “[N]o similar
presumption of validity attaches to the [Commissioner’s] conclusions of law . . . .”
Western v. Harris, 633 F.2d 1204, 1206 (5th Cir. Unit A Jan. 1981).



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      A claimant at a Social Security benefits hearing has a statutory right to
counsel. 42 U.S.C. § 406; Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir. Unit
B July 1981). The claimant must be notified of this right. Clark, 652 F.2d at
403. It is undisputed that Johnson was notified of his right, and he does not
challenge the adequacy of the pre-hearing notice. However, Johnson does argue
that his waiver of counsel was invalid because at the hearing the ALJ
improperly apprised him of how a lawyer could have assisted him at the hearing.
      Johnson’s colloquy with the ALJ certainly appears to have influenced his
decision to proceed without counsel. At the hearing, Johnson stated that he had
counsel who was not able to be present at the proceeding.          He expressed
uncertainty about proceeding without his lawyer. Just before Johnson decided
to proceed, the ALJ told him that the decision regarding benefits would be made
based on medical evidence and Johnson’s credibility. The ALJ stated, “[t]he best
lawyer in Louisiana can’t take a bad case and make a good one. The worst
lawyer in Louisiana can’t take a good case and make a bad one.” At that point,
Johnson decided to proceed without counsel. Johnson stated, after hearing the
ALJ’s implication that the case, not the counsel, would decide the issue of
benefits: “The lawyer wouldn’t make no difference. You just said the medical
records speaks for themselves . . . .”
      Johnson argues that his waiver was invalid because the ALJ misled him
regarding the role an attorney could play in assisting Johnson at the proceeding.
He primarily uses case law regarding adequacy of notice of the right to counsel
to make this point. It is true that some courts have found that proper notice of
the right to counsel must explain the manner in which an attorney can aid the
claimant in the proceedings before the ALJ. See, e.g., Thompson v. Sullivan, 933
F.2d 581, 584 (7th Cir. 1991) (citing a district court case that bases its holding
on Clark); Gullett v. Chater, 973 F. Supp. 614, 620 (E.D. Tex. 1997).



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      We do not address that reasoning, because we find the ALJ here to have
discussed the counsel’s function at a more fundamental level. Even though
Johnson received proper notice of his right to counsel, the ALJ effectively
discouraged him from exercising that right by clearly rejecting that counsel
would do anything beneficial at the hearing. What was offered through proper
notice was disparaged as largely being irrelevant at the hearing.          These
statements made the waiver of counsel invalid.
      Even though Johnson’s waiver was invalid, he still must show prejudice
by pointing “to evidence that would have been adduced and that could have
changed the result had [the claimant] been represented by counsel.” Brock v.
Chater, 84 F.3d 726, 729 n.1 (5th Cir. 1996). Johnson raises multiple potential
grounds for prejudice, but only one needs to be discussed.
      In holding that Johnson had the residual capacity to perform light work,
the ALJ found that Johnson’s “medically determinable impairments could
reasonably be expected to produce the alleged symptoms, but that [Johnson’s]
statements concerning the intensity, persistence and limiting effects of these
symptoms are partially credible.” The ALJ used testimony from Johnson and
from doctors to determine that, though Johnson did experience some pain or
discomfort, he had the ability to do some work. The ALJ declared that Johnson
was more interested in portraying himself as disabled than in giving truthful
information.
      Johnson argues that an attorney would have called Johnson’s friends and
family to give corroborating testimony regarding Johnson’s disability and the
severity of his symptoms. He argues that this would have potentially bolstered
his credibility and changed the ALJ’s decision. We have recognized the potential
prejudicial effect of not having a lawyer to call corroborating witnesses when the
claimant only provided self-serving testimony regarding a disability, which the
ALJ disregarded on credibility grounds. See Clark, 652 F.2d at 404-05.

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      Johnson only needs to show that counsel would have adduced evidence
that could have changed the result.            If counsel had called witnesses to
corroborate the severity of Johnson’s symptoms, this could have changed the
ALJ’s decision regarding Johnson’s credibility, which in turn could have
influenced      the   ALJ’s   decision   regarding   Johnson’s   disability   status.
Consequently, we find that Johnson was prejudiced by his invalid waiver of
counsel.
      The district court’s judgment is REVERSED, and the case is REMANDED
to the district court with instructions to vacate the Commissioner’s decision and
remand to the Social Security Administration for proceedings consistent with
this opinion.




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