     Case: 13-30184       Document: 00512364039         Page: 1     Date Filed: 09/05/2013




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

                                                                            FILED
                                                                        September 5, 2013

                                     No. 13-30184                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



JOSEPH S. JOLIVETTE,

                                                  Plaintiff–Appellant,
v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,

                                                  Defendant–Appellee.



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:11-CV-1348


Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
       Joseph S. Jolivette appeals the judgment of the District Court for the
Western District of Louisiana affirming the decision of the Commissioner of the
Social Security Administration denying Jolivette’s application for Supplemental
Security Income (SSI) benefits under Title XVI of the Social Security Act.
Because the Commissioner committed no reversible error, we affirm.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 13-30184

      Jolivette filed an application for SSI on April 28, 2009, alleging that he
was unable to work due to impulse control and antisocial personality disorders.
The application was denied on June 11, 2009. Through his representative,
Jolivette sought a hearing before a federal administrative law judge (ALJ). Prior
to the hearing, Jolivette received information about the procedures and purpose
of the hearing, including the issues to be considered and the process by which
the ALJ would determine them, the right to review the administrative file and
submit more evidence, the right to have the ALJ issue subpoenas for documents
and witnesses, and the role of the vocational expert and Jolivette’s ability to
interact with the expert.
      The hearing before the ALJ occurred on May 24, 2010. Jolivette appeared
unrepresented because his representative had previously withdrawn. The ALJ
informed Jolivette that he had a right to an attorney, that most attorneys work
on a contingency fee basis, that Jolivette could probably retain an attorney even
if he did not think he could afford one, and that the ALJ would reschedule the
hearing if Jolivette would like time to look for an attorney. Jolivette waived his
right to counsel orally and in writing, and elected to proceed with the hearing
unrepresented. Prior to Jolivette’s waiver of counsel, the ALJ explained that a
vocational expert was present to “give us an opinion regarding your work
history,” and that “he’s not going to make any decision in your case; he’s just
here to offer an opinion.”
      The ALJ determined that Jolivette was not disabled within the meaning
of the Social Security Act because he was capable of performing jobs that exist
in significant numbers in the national economy, and thus was not entitled to SSI
benefits. Jolivette sought review of the ALJ’s decision before the Social Security
Administration Appeals Council, which denied the request. Jolivette then
brought this action in the district court, which affirmed. This appeal followed.



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                                         No. 13-30184

       Jolivette does not challenge the merits of the ALJ’s decision. His lone
argument is that his waiver of the right to counsel at the hearing was not valid
and that he was prejudiced thereby. Jolivette contends that the waiver was
invalid because the ALJ’s explanation at the hearing concerning the role of the
vocational expert was “unfair, incomplete, misleading, based upon a [wrong]
legal standard, and . . . ‘influenced’ Jolivette’s decision to proceed without
counsel.” Notably, he does not contest the adequacy of the multiple prehearing
notices he received apprising him of his right to counsel or the notice given by
the ALJ at the hearing. Instead, he asserts that the proper notice was “recast
and invalidated by the ALJ’s explanation” of the role of the vocational expert.
Our precedent does not support the premise that otherwise adequate notice may
be invalidated by a claimant’s misunderstanding of procedural aspects of the
hearing process unrelated to obtaining an attorney.1 Accordingly, Jolivette’s
argument fails.
       Jolivette cites Johnson v. Astrue2 as support for his position.3 However,
in Johnson, we concluded that the claimant’s waiver of his right to counsel was
invalid because the misleading statements of the ALJ concerned the role of an

       1
          See, e.g., Herridge v. Richardson, 464 F.2d 198, 200 (5th Cir. 1972) (valid waiver of
right to counsel, despite claimant’s unawareness of right to subpoena witnesses and necessity
of doing so); cf. Peppers v. Schweiker, 654 F.2d 369, 371 (5th Cir. 1981) (inadequate prehearing
notice not cured by ALJ at hearing because claimant continued under the apparent
misapprehension that he could not obtain representation if he could not afford an attorney);
Clark v. Schweiker, 652 F.2d 399, 403-04 (5th Cir. 1981) (same).
       2
           326 F. App’x 737 (5th Cir. 2009).
       3
         Jolivette also cites Gullett v. Chater, 973 F. Supp. 614 (E.D. Tex. 1997) and Montalvo
v. Barnhart, 239 F. Supp. 2d 130 (D. Mass. 2003). Gullett involved a lack of prehearing notice
and failure by the ALJ to cure the defect with adequate notice at the hearing of the right to
counsel. Gullet, 973 F. Supp. at 621. Thus, like this court’s decisions in Peppers and Clark,
Gullet is distinguishable from this case. In Montalvo, the court concluded that remand was
appropriate not because the plaintiff’s waiver of his right to counsel was invalid but because
the hearing was “marked by sufficient unfairness due to lack of counsel,” based on standards
established by the First Circuit. Montalvo, 239 F. Supp. 2d at 137-38. Thus, Montalvo also
is not applicable to the present case.

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                                           No. 13-30184

attorney and “effectively discouraged [the claimant] from exercising that right
[to counsel].”4 Here, the ALJ’s statement was related not to the role of an
attorney or the benefits of having one but to the purpose of the vocational expert.
Additionally, nothing in the ALJ’s brief explanation of the vocational expert’s
role could be interpreted as discouraging Jolivette from retaining an attorney.5
Jolivette essentially asks this court to hold that the multiple prehearing notices
adequately informing him of his right to counsel were invalidated by the ALJ’s
one-sentence comment on the role of the vocational expert, despite the ALJ’s
subsequent thorough explanation of Jolivette’s right to counsel. We decline to
adopt such a sweeping rule. Accordingly, we hold that Jolivette validly waived
his right to counsel at his administrative hearing.
       Because we conclude that Jolivette’s waiver of the right to counsel was
valid, we do not reach the issue of whether he was prejudiced.
                                      *         *         *
       AFFIRMED.




       4
           Johnson, 326 F. App’x at 739.
       5
         Cf. id. (“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.’”)
(alteration in original).

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