### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-30184 Summary Calendar

JOSEPH S. JOLIVETTE, Plaintiff–Appellant,
v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant–Appellee.

A ppeal 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

. J o l i vette appeals the judgment o f the District Court for the Western District of Louisiana affirming the decision of the Commissioner of the Social Security Administration denying J olivette’s appli c ation for Supplemental Se c u r ity Income (SSI) benefits under Title XVI of t he Social Security Act. Because the Commissioner committed no reversible error, we affirm. U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Septem ber 5, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 13-30184 Document: 00512364039 Page: 1 Date Filed: 09/05/2013No. 13-30184

Jolivette filed an application for SSI on A pril 28, 2009, alleging t h a t he

was unable t o work due to impulse control and a ntisocial personality disorders. The application was denied on June 1 1 , 2 0 0 9. Through his representative, Jolivette sought a h e aring before a federal administrative law j udge (ALJ). Prior to the hearing, J olivette received information about the procedures and purpose of the hearing, including t he i s s u e s t o be considered and the process b y which the ALJ would d etermine them, the r ight to r e view the administrative file and submit more evidence, the right to have the ALJ issue subpoenas for documents and witnesses, and the r ole of the vocational expert and Jolivette’s ability to interact with the expert. The hearing before the ALJ occurred o n May 24, 2010. Jolivette a ppeared unrepresented b ecause his representative had previously withdrawn. The ALJ informed Jolivette that he had a right to an attorney, that most attorneys work

on a contingency f

ee basis, that Jolivette could probably retain an attorney even if h e did not think he could afford one, and that t he ALJ would reschedule the hearing if Jolivette would like time to look for an attorney. J olivette waived his

r i g h t to c ounsel orally and i n writing, a nd elected t o proceed with the heari n g unrepresented. Prior to Jolivette’s waiver of counsel, t h e ALJ explained that a vocational expert was present to “give us an o pinion rega rding your work history,” and that “he’s n ot going to make any d e cision in your case; he’s just here to offer an opinion.” The ALJ determined that Jolivette was not disabled within the m eaning of the Social Security Act because he was capable of performing jobs that exist in s i gnificant n umbers in the national economy, and t hus 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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Jolivette does not challenge t h e m e r i t s of the ALJ’s decision. H is lone argument is that his waiver of the right t o counsel at the hearing was not valid and that he was prejudiced thereby. Jolivette contends that th e w a i v e r was invalid because the A LJ’s explanation at t he hearing concerning the r o le of the

v o c a t i o nal expert w as “unfair, incomplete, misleading, based upon a [wrong] legal s tandard, and

. . . ‘infl u e n c ed’ Jolivette’s decision to proceed without counsel.” Notably, he does not contest the adequacy of the multiple prehearing notices h e received apprising him of his r i g h t t o counsel or the n otice given by the ALJ at the hearing. Instead, he asserts that the proper notice was “recast and invalidated by t he ALJ’s explanation” of the role of the v o ca t i o nal expert. Our precedent does not support the premise that otherwise adequate notice m ay be invalidated by a claimant’s mis u nderstanding of procedural aspects of the hearing process unrelated to obtaining a n attorney. 1 Accord i n gly, Jolivette’s argument fails. Jolivette cites Johnson v. Astrue 2 as su p p o r t for his position. 3 H owever, in Johnson , we concluded t h at the claimant’s waiver o f his right to counsel was invalid because the misleading statements of the ALJ concerned the role of an

1 See, e. g. , H

erri dge v
. Ri cha rdson , 464 F. 2 d 1 9 8 , 200 ( 5th Cir. 1972) ( valid w aiver of right to couns el, d es p ite claim ant’s unaw arenes s of right to s ubp oena w itnes s es and neces s ity of d oing s o) ; cf

. Pep p ers v
. Schw ei ker , 654 F. 2d 369, 371 ( 5th Cir. 1981) ( inad equate p rehearing notice not cured by ALJ at hearing b ecaus e claim ant continued und er the ap p arent
m is ap p rehens ion that he could not obtain rep res entation if he could not af f ord an attorney) ; Cl a rk v
. Schw ei ker , 652 F

. 2d 399, 403- 04 (5th Cir. 1981) ( s am e)

.

2 326 F. Ap p ’x 737 ( 5th Cir. 2009)

.
3 Jolivette als o cites G ul l ett v
. Cha ter , 973 F. Sup p
. 614 ( E

. D

. Tex. 1997) and M onta l v o v
. Ba rnha rt , 239 F. Sup p
. 2d 130 ( D

. M as s
. 2003)

. Gul l ett involved a lack of p rehearing notice and f ailure by the ALJ to cure the d ef ect w ith ad equate notice at the hearing of the right to couns el. Gul l et , 973 F

. Sup p
. at 621. Thus , lik e this court’s decis ions in Pep p ers and Cl a rk , G ul l et is d is tinguis hable f rom this cas e. In Monta l v o , the court conclud ed that rem and w as ap p rop riate not becaus e the plaintif f ’s w aiver of his right to couns el was invalid but becaus e the hearing w as “m ark ed by s uf ficient unf

airnes s d ue to lack of couns el, ” bas ed on s tand ard s es tablis hed by the Firs t Circuit. M onta l v o , 239 F. Sup p
. 2d at 137- 38. Thus , Monta l v o als o is not ap plicable to the p res ent cas e. 3 Case: 13-30184 Document: 00512364039 Page: 3 Date Filed: 09/05/2013No. 13-30184

attorney and “effectively discouraged [ the claimant] from exercising that right [ t o c o u nsel].” 4 Here, the ALJ’s statement was r e lated not to t he role of a n attorney or the benefits of having one but to the purpose o f the vocational expert. Additional l y , n o t hing in the A LJ’s b r ief explanation of the vocational expert’s role c ould be interpreted as discouraging Jolivette f rom r etaining an attorney. 5 Jolivette essentially asks this court to h old t hat the multiple prehearing notices adequately informing him of his right to counsel were i nvalidated by t he ALJ’s one-sentence comment o n t h e role of the v ocational expert, despite the ALJ’s subsequent thorough explanation of Jolivette’s right to counsel. W e decline to adopt such a sweeping rule. Accordingly, we h old that Jolivette validly waived his right to counsel at his administrative hearing. Because w e conclude that Jolivette’s waiver of t h e r i g h t t o counsel was valid, we do not reach the issue of whether he was prejudiced. * * * AFFIRMED.

4 Johnson , 326 F. Ap p’x at 739.

5 Cf

. i d. ( “The A L J s t a t e d , ‘[ t] he bes t law yer in L ouis iana can’t tak e a bad cas e and
m ak e a good one. The w ors t law yer in Louis iana can’t tak e a good cas e and m ak e a bad one. ’”) ( alteration in original)

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