* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40318

Summary Calendar

JAMES R. CORNETT

Plaintiff-Appellant

v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY

Defendant-Appellee

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 1:05-cv-00656

Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

The Commissioner of Social Security denied James R. Cornett’s claim for

supplemental security income benefits. The district court affirmed. On appeal,

Cornett alleges various infirmities in the denial, including that the decision was

the result of such severe ineffectiveness on the part of his counsel as to deprive

Cornett of his constitutional rights. We find no merit to these appellate

United States Court of Appeals

Fifth Circuit

F I L E D

January 3, 2008

Charles R. Fulbruge III

Clerk
No. 07-40318

1 Cornett was represented by counsel in proceedings before the ALJ and his appeal to

the magistrate judge. However, his counsel withdrew after receipt of the magistrate judge’s

report and recommendation. Cornett filed his objections to the district court pro se and

continues to represent himself on appeal. 

2

arguments. Because the Commissioner’s decision is supported by substantial

evidence and comports with relevant legal standards, we affirm.

I. Procedural History

Cornett applied for supplemental security income (“SSI”) benefits,

claiming that physical and mental impairments rendered him disabled.

Specifically, Cornett alleged that he suffered from back problems, arm injuries,

obesity, hepatitis C, post-traumatic stress disorder, and depression. His

application was denied as was his petition for reconsideration. 

Cornett then requested a hearing before an Administrative Law Judge

(“ALJ”). At the hearing, the ALJ heard testimony from Cornett (who at that

time was represented by counsel, though he no longer has counsel on this

appeal1) and a vocational expert. The ALJ received into the record the reports

and diagnoses resulting from two physical examinations and one mental

examination, the report and diagnosis of Cornett’s “treating” physician, and an

evaluation by a non-examining psychologist. The ALJ determined that Cornett

suffered from some “severe”impairments as defined by the relevant regulations,

but those impairments did not render him incapable of performing jobs that

existed in significant numbers in the national economy. The ALJ offered the

jobs of usher, ticket taker, and cashier as examples of work that Cornett was

capable of performing.

The ALJ found that Cornett was not disabled and denied his claim for

benefits. The Appeals Council denied his request for review and the ALJ’s

decision became the final decision ofthe Commissioner. Cornett filed suit in the

district court, seeking review of the Commissioner’s decision. The magistrate
No. 07-40318

3

judge recommended that the denial of benefits be affirmed. The district court

adopted the report and entered an order dismissing Cornett’s suit.

II. Discussion

On his appeal here, Cornett identifies three issues. Two are phrased in

terms of violations of Cornett’s due process rights and a third contests the

adequacy of his counsel. Because Cornett is representing himself, we apply less

stringent standards in interpreting his arguments than we would in the case of

a counseled party. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). Applying

that relaxed standard, we interpret Cornett’s brief as attacking the district

court’s decision on these grounds: (A) the ALJ did not fully develop the record

before ruling on Cornett’s claim; (B) the ALJ gave insufficient weight to

Cornett’s subjective complaints of pain; (C) the ALJ failed to consider legal

impediments to Cornett’s ability to perform the jobs proposed by the vocational

expert; and (D) Cornett’s constitutional rights were violated by the ALJ.

In reviewing the Commissioner’s denial of SSI benefits, an appellate court

determines if there is substantial evidence in the record to support the decision,

and whether that decision fits within the relevant legal standards. Brock v.

Chater, 84 F.3d 726, 727-28 (5th Cir. 1996). “Substantial evidence” has been

defined as being relevant evidence that a reasonable mind might accept to

support a conclusion; quantitatively, it has been described as being more than

a scintilla butless than a preponderance. Ripley v. Chater, 67 F.3d 552, 555 (5th

Cir. 1995). We neither reweigh the evidence nor substitute our discretion for

that of the Commissioner. Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999).

Within the boundaries that these review standards establish, the judgment as

to whether benefits should be awarded is for the Commissioner to exercise.

A. The ALJ’s Duty to Develop the Record

Cornett first argues that the ALJ did not fully develop the record and

consider all of the relevant evidence before determining that he was not eligible
No. 07-40318

4

for SSI benefits. An ALJ has a duty to develop the facts fully and fairly relating

to an applicant’s claim for disability benefits. Ripley, 67 F.3d at 557. Reversal

is appropriate only if the applicant shows that he was prejudiced. Id. Prejudice

can be established by showing that, had the ALJ adequately performed his duty,

he “could and would have adduced evidence that might have altered the result.”

Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984). Discussed below is a

specific ALJ duty, which is detailed by regulation, to seek additional medical

evidence in certain circumstances. Though these evidentiary duties have been

imposed on the ALJ, the claimant continues to bear the burden of proving that

he suffers from a disability once an adequate evidentiary record exists. Perez v.

Barnhart, 415 F.3d 457, 461 (5th Cir. 2005).

Cornett suggests that the ALJ at the hearing failed to probe adequately

into the factual issue of the debilitating effects of his physical impairments.

However, Cornett was questioned about his impairments by both his counsel and

the ALJ at the hearing. Cornett testified regarding his arm and back injuries,

hepatitis C, and post-traumatic stress disorder. At the close of questioning, he

was invited to tell the ALJ about any physical or mental conditions that had not

been covered. He had the opportunity to give any testimony that he desired

regarding his obesity and depression. Notwithstanding Cornett’s silence at the

hearing, the ALJ’s decision explicitly considered the record evidence on these

latter two conditions. 

Cornett also suggests that the ALJ failed to consider the side effects of the

medications that he took to control pain. However, the ALJ’s decision notes that

Cornett did not mention any side effects. Cornett concedes that he did not

actually testify that he suffered from side effects, but argues thatthe ALJ should

have discerned from the nature of his testimony that he was suffering from such

effects. While Cornett’s testimony was somewhat unfocused, it was not
No. 07-40318

2 Cornett describes Dr. Walkes as his “treating” physician. The ALJ found no evidence

in the record that Dr. Walkes actually treated Cornett. However, even if we assume that Dr.

Walkes was Cornett’s treating physician, the ALJ was still entitled to give diminished weight

to his opinion so long as he offered valid reasons for doing so. See Greenspan, 38 F.3d at 237

(affirming ALJ’s decision to accord “no weight” to opinions of applicant’s treating physicians).

5

incoherent or unintelligible. The transcript demonstrates that Cornett was lucid

and capable of discussing his various impairments at the time of his hearing.

Cornett next argues that the ALJ should have given controlling weight to

the determination of Dr. A. C. Walkes, who rendered an opinion that Cornett

was temporarily unable to work for a period of one year. The ALJ accorded Dr.

Walkes’s opinion “no weight” because it was rendered in conjunction with

Cornett’s application for public benefits with “unknown standards for

establishing disability.” Cf. 20 C.F.R. § 416.904 (“[A] determination made by

another agency that you are disabled or blind is not binding on [the

Commissioner].”). In addition, there was little evidence that Dr. Walkes

provided any form of treatment for Cornett. The ALJ set forth valid reasons for

rejecting Dr. Walkes’s opinion and his decision is supported by substantial

evidence. See Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994) (“[W]hen

good cause is shown, less weight, little weight, or even no weight may be given

to the physician’s testimony.”).2

Finally, Cornett argues that the ALJ erred by failing to recontact Dr.

Walkes in order to obtain a definitive statement regarding the extent of

Cornett’s work-related limitations. The Commissioner is required to recontact

a medical source “[w]hen the evidence . . . from [the] treating physician or

psychologist or other medical source is inadequate for [the Commissioner] to

determine whether [the claimant is] disabled.” 20 C.F.R. § 416.912(e). In one

precedent, an ALJ’s decision to deny benefits was reversed when the record did

not clearly establish the effect of the claimant’s condition on his ability to work

and the ALJ had not made additional contact with the treating physician. See
No. 07-40318

6

Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000); see also Ripley, 67 F.3d at 557

(“The only evidence regarding Ripley’s ability to work came from Ripley’s own

testimony.”). However, the lack of a statement from Dr. Walkes as to what

Cornett could still do in spite of his impairments does not automatically render

his report incomplete. As already noted, the ALJ’s need to contact a medical

source arises only when the available evidence is inadequate to determine if

there is a disability. 20 C.F.R. § 416.912(e).

In this case, the ALJ considered over 500 pages of medical evidence before

rendering his decision. At least two physicians reported that Cornett’s

impairments do not preclude him from performing certain types of work; a

vocational expert testified to the same effect. It is difficult to characterize such

an extensive record as “inadequate.” Further, there is no basis for us to conclude

that recontacting Dr. Walkes would have overcome the substantial medical

evidence in the record and altered the ALJ’s decision. Because we cannot say

that Cornett was prejudiced by the ALJ’s decision not to recontact Dr. Walkes,

there is no basis for reversal. Ripley, 67 F.3d at 557. 

The ALJ fulfilled his duty to develop the record fully before ruling on

Cornett’s claim for SSI benefits. 

B. Cornett’s Subjective Complaints of Pain

Cornett also contends that the ALJ gave insufficient weight to his

subjective complaints of pain. The ALJ found that Cornett’s allegations

regarding his physical limitations were “not totally credible.” Cornett’s

challenge to the ALJ’s finding on credibility focuses on what he argues was the

ALJ’s improper use of an admission he made below. The admission was that

Cornett was convicted of possession of child pornography under federal law in

June 1992 and served a five year prison term for the crime. The ALJ’s decision

referred to Cornett’s statementthatthe crime was “victimless,” an assertion that

the ALJ described as “a gross misstatement” and a demonstration that Cornett
No. 07-40318

3 Cornett claims that he cannot afford additional medications or treatment and,

therefore, the ALJ’s consideration of these factors was improper. There is authority that even

when medical treatment would remedy a condition, a person unable to afford that treatment

may still be considered disabled. Lovelace v. Bowen, 813 F.2d 55, 59-60 (5th Cir. 1987). But

Lovelace is inapplicable because the record does not support that Cornett’s alleged disabilities

would be alleviated by regular medical treatment. The ALJ properly gave weight in the

credibility determination to Cornett’s minimal efforts to obtain treatment. See Villa v.

Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990) (ALJ was not precluded from relying on lack of

treatment as an indication that subjective complaints of pain were not credible where there

was no evidence that medical treatment would have alleviated alleged disability). 

7

had “a disregard for truth and a debased conscience.” Consequently, the ALJ

gave “less weight” to his testimony. Cornett refers to this conclusion as his sole

reason for arguing that the ALJ revealed an improper bias.

The ALJ’s reference to the child pornography matter is preceded by five

pages of detailed record analysis, comparing Cornett’s subjective complaints

with the diagnoses of medical professionals. The ALJ’s decision sets forth

several reasons for attaching diminished weight to Cornett’s assertions,

including: (1) Cornett took fewer medications than a person with his alleged

level of pain would be expected to take, (2) Cornett did not seek medical

treatment at the level one would expect for a person with his alleged symptoms,

and (3) inconsistencies between Cornett’s subjective complaints and the results

of clinical evaluations.3 Considering the decision in its entirety, it is clear that

the ALJ considered both the objective medical evidence and Cornett’s subjective

complaints of pain before making an eligibility determination. The decision to

credit the medical evidence to a greater extent than Cornett’s subjective

complaints was valid. See Loya v. Heckler, 707 F.2d 211, 214 (5th Cir. 1983).

Further, the ALJ did not totally reject Cornett’s subjective complaints; he

merely ascribed “less weight” to them. An ALJ’s failure to consider a claimant’s

subjective complaints of pain or failure to indicate the basis for his credibility

determinations is reversible error. See Scharlow v. Schweiker, 655 F.2d 645,

648-49 (5th Cir. 1981). Here, the ALJ referred to the complaints and gave them
No. 07-40318

8

some weight. Cornett’s argument that his subjective complaints were not given

enough weight is unavailing. See Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir.

1991). 

The ALJ’s credibility determination is supported by substantial evidence

and we will not reweigh that evidence on appeal. See Villa v. Sullivan, 895 F.2d

1019, 1024 (5th Cir. 1990) (“[A] factfinder’s evaluation of the credibility of

subjective complaints is entitled to judicial deference if supported by substantial

record evidence.”). Further, there is no basis in the record for Cornett’s claim

that the ALJ exhibited a “bias” against him. The ALJ’s remarks do not indicate

that he was predisposed to rule against Cornett because of his conviction for

possession of child pornography, nor do they reveal an excessive dislike of

Cornett. Instead, they disclose a reasoned judgment that Cornett’s claims

should be received with some skepticism. See Brown, 192 F.3d at 500

(“‘[J]udicial remarks during the course of a trial that are critical or disapproving

of, or even hostile to counsel,the parties, or their cases, ordinarily do not support

a bias or partiality challenge’ unless ‘they reveal such a high degree of favoritism

or antagonism as to make fair judgment impossible.’”) (alteration in original)

(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).

C. Legal Impediments Preclude Cornett from Working 

Cornett argues that the ALJ erred in finding that he was capable of

performing jobs that existed in significant numbers in the national economy. “If

the Secretary fulfills his burden of pointing out potential alternative

employment, the burden then shifts back to the claimant to prove that he is

unable to perform the alternate work.” Selders v. Sullivan, 914 F.2d 614, 618

(5th Cir. 1990) (citation omitted). This finding was vigorously disputed in

Cornett’s initial appeal to the magistrate judge. There, Cornett attacked the

vocational testimony offered in support of this finding as unreliable and
No. 07-40318

9

inadequately accounting for his mental limitations. Those arguments were

rejected by the magistrate judge.

Cornett did not pursue those arguments on appeal to the district court or

to this Court. Instead, he now argues that the ALJ failed to consider legal

impediments to his ability to perform the jobs of usher, ticket taker, or cashier.

He offers two alleged legal impediments to his performance of these jobs, one

based on his use of certain prescription medications, the other on his conviction:

(1) state and federal law prohibit a person from being under the influence of

drugs at the workplace and while driving a vehicle; and (2) Texas state law

prohibits sex offenders from working “anywhere children may go or congregate.”

Cornett did not present his legal impediments arguments to the

magistrate judge and, therefore, is not entitled to raise them on appeal. See

Cupit v. Whitney, 28 F.3d 532, 535 n.5 (5th Cir. 1994). Moreover, in making this

new argument on appeal, Cornett provided no citation to a particular statute,

regulation, ordinance or any other authority. Though we review the briefs of pro

se appellants with some relaxation of the usual demands on counseled parties,

we do not abandon the insistence that some minimal legal basis for arguments

must be offered. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Even a

pro se appellant must set forth “the reasons he deserves relief ‘with citation to

the authorities, statutes and parts of the record relied on.’” Weaver v. Puckett,

896 F.2d 126, 128 (5th Cir. 1990) (quoting Fed. R. App. P. 28(a)(4)). 

Finally, Cornett’s new argument about legal impediments reflects a

misunderstanding of the meaning of “disability.” Whether Cornett is capable of

performing work which exists in the national economy is determined by

reference to vocational factors (such as age, education, and work experience) and

his residual functional capacity. 20 C.F.R. §§ 416.920(a), (g); 416.960(c). A

regulation informs a claimant of what does not constitute sufficient proof:
No. 07-40318

10

(c) Inability to obtain work. We will determine that you are not

disabled if your residual functional capacity and vocational abilities

make it possible for you to do work which exists in the national

economy, but you remain unemployed because of –

(1) Your inability to get work;

. . . 

(3) The hiring practices of employers;

. . . 

(7) You would not actually be hired to do work you could otherwise

do.

. . .

20 C.F.R. §§ 416.966(c). We agree that the proper interpretation of these

exclusions is that a “claimant will also be considered not disabled ifthe claimant

is able to do work which exists in the national economy but remains unemployed

because of a criminal record.” 3 SOCIAL SECURITY LAW AND PRACTICE § 43:138

(Michael Flaherty and Wendy S. Sigillo eds.,West 2005) (citation omitted).

D. Cornett’s Constitutional claims 

Cornett asserts that the Commissioner violated his right to due process

and equal protection under theFifth and Fourteenth Amendments ofthe United

States Constitution. 

First, Cornett claims that he was denied a fair hearing. However, he took

full advantage ofthe administrative claims process, was provided with a hearing

before an ALJ, and exercised his right to appeal to the district court and this

Court. He has not identified any aspect of these proceedings that was

constitutionally deficient. Our review of the record reveals that Cornett has

been afforded a full and fair opportunity to present his case. His conclusory

allegations to the contrary are not availing. See Kinash v. Callahan, 129 F.3d

736, 738 (5th Cir. 1997).

Cornett next claims he was the victim of a “class based animus” exhibited

by the ALJ. But he has not offered any evidence that he was treated differently

than other Social Security claimants. Cf. Wheeler v. Miller, 168 F.3d 241, 252
No. 07-40318

11

(5th Cir. 1999) (“Generally, to establish an equal protection claim the plaintiff

must prove that similarly situated individuals were treated differently.”). 

Finally, Cornett argues that he was the victim of ineffective assistance of

counsel at his hearing before the ALJ. However, this claim does not rise to the

level of a constitutional violation. The Supreme Court has never recognized a

constitutional right to counsel in Social Security proceedings. Brandyburg v.

Sullivan, 959 F.2d 555, 562 (5th Cir. 1992).

Therefore, we reject Cornett’s claim that his due process and equal

protection rights were violated. We also reject his ineffective assistance of

counsel claim. 

In conclusion, the ALJ’s decision to deny Cornett’s claim for SSI benefits

is supported by substantial evidence and comports with relevant legal standards.

Accordingly, the order of the district court dismissing Cornett’s complaint is

AFFIRMED.