McKinney v. Barnhart

*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opinion should not be published and is not precedent except under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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 16, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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

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1The 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
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

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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

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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.

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