* 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that this opinion should not be published and is not precedent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

FILED

July 16, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-21028

Summary Calendar

 

CAROLYN A. ONISHEA,

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-01-CV-1829

Before JOLLY, JONES and CLEMENT, Circuit Judges.

PER CURIAM:*

Carolyn A. Onishea appeals the district court’s judgment

affirming the Commissioner’s denial of her application for

Supplemental Security Income benefits. This court’s review of the

Commissioner’s decision is limited to determining whether the

Commissioner used proper legal standards to evaluate the evidence

and whether the decision is supported by substantial evidence. See

Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
2

Onishea argues that the administrative law judge (ALJ)

failed to comply with Social Security Ruling (SSR) 96-7p, which

required specific reasons for his determination regarding Onishea’s

credibility. She argues specifically about her subjective

complaints of her leg pain, weakness, and numbness, and about the

side effects of her medications. The ALJ found Onishea’s

subjective complaints to be generally credible but not to the

extent she alleged that she is completely unable to perform any

work activity. The ALJ’s reasons are sufficiently articulated in

his decision to comply with SSR 96-7p. Moreover, the ALJ’s

credibility determination is supported by substantial evidence in

the record as a whole.

Onishea argues that the ALJ failed to assess her residual

functional capacity (RFC) in accordance with Myers v. Apfel, 238

F.3d 617 (5th Cir. 2001), and SSR 96-8p, which require the ALJ to

make a function-by-function analysis of a claimant’s ability to do

work-related activities. The ALJ based his assessment of Onishea’s

RFC, in part, on the state examiner’s function-by-function analysis

of her exertional limitations. Thus, the ALJ employed the legal

standard set forth in Myers and SSR 96-8p in determining Onishea’s

RFC.

Onishea also argues that the ALJ erred in failing to

consider all of her impairments and subjective complaints in

determining her RFC, specifically regarding her obesity, leg

numbness and pain, and medication side effects. This argument is
3

unsupported by the record, which shows that the ALJ considered all

of Onishea’s severe medical impairments, including her obesity, and

her subjective complaints of leg pain and numbness and medication

side effects in determining her RFC.

Onishea argues that the ALJ should have assessed the

number of times she requires the use of a restroom in determining

her RFC. The ALJ found that Onishea had the RFC to perform light

work with the need, inter alia, for restroom access. Onishea did

not present any evidence regarding the specific number of times she

needs to use the restroom. She points to no authority requiring

the ALJ to assess sua sponte the frequency of restroom use when

there is no evidence of this in the record.

For the first time on appeal, Onishea argues that the ALJ

was precluded by the doctrine of res judicata from finding that she

could return to her past relevant work as a security guard. Even if

it is assumed that the doctrine applies because the ALJ found that

Onishea could return to her past work as a cashier, Onishea has not

shown that any error affected her substantial rights. Thus, she

has not shown plain error. See United States v. Calverley, 37 F.3d

160, 162-64 (5th Cir. 1994)(en banc).

AFFIRMED.