     Case: 12-60260        Document: 00512018488             Page: 1      Date Filed: 10/12/2012




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

                                                                                      FILED
                                                                                   October 12, 2012

                                         No. 12-60260                                Lyle W. Cayce
                                       Summary Calendar                                   Clerk



JANICE HUGHES, for T.H., a minor

                                                         Plaintiff-Appellant
v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY

                                                         Defendant-Appellee



                      Appeal from the United States District Court
                        for the Southern District of Mississippi
                                 USDC No. 10-CV-586


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
        Appellant Janice Hughes, on behalf of T.H., appeals from an order of the
district court affirming the decision of the Commissioner of Social Security to
deny her children’s Supplemental Security Income (SSI) benefits. Having
considered the complete administrative record, the administrative law judge’s
(ALJ’s) decision, and the thorough opinion of the district court, we agree with the
district court that the ALJ’s findings are supported by substantial evidence and
the district court’s order is affirmed.

        *
          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 R. 47.5, the court has determined that this opinion should not be published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. 12-60260

                                       I.
      Hughes filed an application on October 24, 2005 for SSI on behalf of T.H.,
her minor child, alleging disability based on seizure and attention deficit
hyperactivity disorders. T.H. was born on October 27, 1998, and was six years
old at the time the application was first filed. Hughes’s application was initially
denied and again denied on reconsideration. Hughes administratively appealed
and a hearing on the appeal was held on October 9, 2007 in which Hughes, on
behalf of T.H., represented herself.
      This appeal concerns the denial of SSI based on the determination that
T.H. was not disabled between October 24, 2005 and March 25, 2008. Hughes
thereafter filed a second application for benefits on behalf of T.H., this time
alleging a disability onset date of April 7, 2008. Hughes also submitted
additional evidence in support of her first application. With respect to her second
application, T.H. was determined disabled since April 7, 2008, and Hughes was
awarded benefits on T.H.’s behalf. With respect to her initial application, the
Appeals Council held that the new evidence did not provide a basis for altering
the ALJ’s decision that T.H. was not disabled prior to March 25, 2008. Hughes
now appeals the decision denying T.H.’s first application for benefits which
found no disability between October 24, 2005 and March 25, 2008. The Appeals
Council denied review, making the ALJ's determination the final decision of the
Commissioner. The appellant challenged the administrative denial of benefits
in the appeal to the district court. The district court in a thorough opinion
rejected the appeal and affirmed the denial of benefits.
      On appeal to this court, appellant contends: (1) the ALJ erred in allowing
Hughes to waive representation because she is mentally ill; (2) the ALJ failed to


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                                   No. 12-60260

fully develop the record; (3) the ALJ’s decision was not supported by substantial
evidence, failed to properly weigh evidence, failed to explain why the
impairments do not meet or equal a listing, and failed to explain credibility
findings; and (4) the Appeals Council erred in its “terse denial.”


                                       II.
      Our review is limited to “(1) whether there is substantial evidence in the
record to support the decision; and (2) whether the decision comports with
relevant legal standards.” Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996).
Evidence is substantial if it is “relevant and sufficient for a reasonable mind to
accept as adequate to support a conclusion.” Leggett v. Chater, 67 F.3d 558, 564
(5th Cir. 1995). This court “may not reweigh the evidence in the record, nor try
the issues de novo, nor substitute [the Court’s] judgment for the
[Commissioner’s],    even   if   the   evidence      preponderates    against    the
[Commissioner’s] decision.” Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994)
(first alteration in original) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th
Cir. 1988)).


                                       III.
      We have reviewed the briefs and the record on appeal and are not
persuaded by Hughes’s claims of error. The district court thoroughly addressed
the arguments Hughes raises on appeal, and we affirm for substantially the
reasons set forth in its opinion and order filed on March 12, 2012. The district
court made detailed findings after carefully examining the medical evidence in
the record and in concluding that the plaintiff failed to satisfy her burden of


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proof in establishing entitlement to benefits. See Hughes v. Astrue, No.
3:10–cv–586–WHB–LRA (S.D. Miss. Mar. 12, 2012).
      In summary, Hughes contends the ALJ erred in permitting her to
represent T.H. because Hughes herself is mentally ill. While a disability
claimant has a right to representation in Social Security proceedings, the right
to counsel may be waived when the claimant is given sufficient information to
enable her to decide intelligently whether to retain counsel or proceed pro se. See
Castillo v. Barnhart, 325 F.3d 550, 552 (5th Cir. 2003). The record reflects that
during the hearing the ALJ advised Hughes at length of T.H.’s right to be
represented at the hearing and Hughes expressly declined representation and
signed a waiver of representation.
      Hughes now argues that she is schizophrenic and should not have been
permitted to waive representation and points to a statement and records she
submitted to the Appeals Council in April 2010 in which she advised she suffers
from schizophrenia. Such evidence was not part of the record before the ALJ.
Further, there is no indication from the transcript of the hearing that Hughes
was affected by any impairment or was otherwise incapable of waiving
representation on behalf of T.H. Even assuming Hughes's waiver was ineffective,
a claimant must also show that she was prejudiced by a lack of representation,
and Hughes has not done so here. See id.
      Hughes alleges she suffered prejudice and that the ALJ failed to fully
develop the record because when Hughes did receive assistance of counsel and
additional evidence was made part of Hughes's second application for benefits,
such benefits were granted. However, as the district court noted, the additional
evidence made part of the record upon which the April 7, 2008 benefits decision


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largely relied were medical and educational reports dated November 2008, which
could not have been added to the record or reviewed by the ALJ prior to her
March 2008 decision. Further, there is no evidence that these additional records
“relate to the time period for which benefits were denied.” See Haywood v.
Sullivan, 888 F.2d 1463, 1471 (5th Cir. 1989) (quoting Johnson v. Heckler, 767
F.2d 180, 183 (5th Cir. 1985)). Thus Hughes has failed to establish that her
waiver of representation was ineffective and has failed to establish that she was
prejudiced by a lack of representation.
      As to appellant’s remaining arguments regarding the substantive issue of
T.H.’s disability, we find the ALJ’s decision finding no disability between October
24, 2005 and March 25, 2008 supported by substantial evidence in the record.
While Hughes argues T.H. met, medically equalled, or functionally equalled the
requirements for either Listing 112.11 for ADHD, Listing 111.02 A or B for
seizures, or Listing 112.05 C for mental retardation, the ALJ’s determination
that she did not meet, medically equal, or functionally equal any listing that
would warrant benefits is consistent with medical and educational evidence.
This includes the findings of Doctors Herzog, Hebert, and Brown.


                                       IV.
      Having carefully reviewed the record, we conclude that the order of the
ALJ, denying T.H. disability benefits, is supported by substantial evidence and
comports with relevant legal standards. Accordingly, the district court's Order
Affirming the Decision of the Commissioner is AFFIRMED.




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