IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

ROBERT WAINSCOTT, §

§

 Plaintiff, §

§

v. § Civil Action No. 7:04-CV-0176-BH

§

COMMISSIONER OF SOCIAL §

SECURITY, §

§

Defendant. § Consent Case

MEMORANDUM OPINION AND ORDER

Pursuant to the District Court’s Order, filed February 10, 2005, and the consent of the

parties, this matter has been transferred to the undersigned United States Magistrate Judge for the

conduct of all further proceedings and the entry of judgment in accordance with 28 U.S.C. § 636(c).

Before the Court are Brief for Plaintiff, filed January 5, 2005, and Defendant’s Motion for Summary

Judgment and Brief in Support of Motion for Summary Judgment, both filed February 22, 2005.

Plaintiff did not file a reply. Having reviewed the evidence of the parties in connection with the

pleadings, the undersigned is of the opinion that the final decision of the Commissioner should be

AFFIRMED.

I. BACKGROUND

A. Procedural History

Robert S. Wainscott (“Plaintiff”) seeks judicial review of a final decision by the

Commissioner of Social Security (“Commissioner”) denying his claim for disability benefits under

Titles II and XVI of the Social Security Act. On July 25, 2001, Plaintiff filed an application for

disability benefits. (Tr. at 71-73.) Plaintiff claimed he was disabled due to diabetes and neuropathy,

specifically stating that he could not walk without a cane, lift more than 10 pounds, or stand, and

 

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that his impairments caused him pain. (Tr. at 81.) Plaintiff's application was denied initially and

upon reconsideration. (Tr. at 44-45.) Plaintiff timely requested a hearing before an Administrative

Law Judge (“ALJ”). (Tr. at 60.) A hearing, at which Plaintiff personally appeared and testified, was

held on October 23, 2003. (Tr. at 165-193.) On December 8, 2003, the ALJ issued his decision

finding Plaintiff was not disabled. (Tr. at 34-41.) The Appeals Council denied Plaintiff’s request

for review, concluding that the contentions raised in Plaintiff’s request for review did not provide

a basis for changing the ALJ’s decision. (Tr. 3-5.) Thus, the ALJ’s decision became the final

decision of the Commissioner. (Tr. at 3.) Plaintiff timely appealed the Commissioner’s decision

to the United States District Court pursuant to 42 U.S.C. S 405(g) on September 29, 2004.

B. Factual History

1. Age, Education, and Work Experience

Plaintiff was born on March 11, 1965. (Tr. at 168.) At the time of the hearing before the

ALJ, he was 38 years old. (Tr. at 169.) He graduated from high school, attended a few years of

college without receiving a degree, and possessed a Texas real estate license. Id. His past relevant

work experience included working in production and as a laundry manager. (Tr. at 170-71.)

Plaintiff’s last known job was sometime in the calendar year prior to the hearing in 2003, but no

dates were given. (Tr. at 102, 173.)

2. Medical Evidence

Plaintiff’s alleged onset of disability is on November 21, 1999. (Tr. at 90.) The medical

evidence in the record begins two years later, on May 24, 2001. (Tr. at 135.) Plaintiff visited Dr.

Karina Urquia (“Dr. Urquia”) and complained of numbness in both of his feet and weakness in both

of his lower extremities which he first noticed about March 26, 2001. (Tr. at 134-35.) Dr. Urquia

described Plaintiff as having insulin-dependent diabetes mellitus for the past nine years, which was

 

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 There are no medical records provided from Dr. Alturi.

2

 Files from Dr. Harbor were not included in the record.

3

 A drop foot or “footdrop” is a dropping of the foot from a peroneal or tibial nerve lesion that causes paralysis of the

anterior muscles of the leg. Dorland’s Illustrated Medical Dictionary, 648, W.B. Saunders Company (28th ed.

1994). The effect can be a “steppage gait” in which the advancing leg is lifted high in order that the toes may clear

the ground. Id. at 671.

3

being treated by Dr. Atluri.1

 (Tr. at 135.) Dr. Urquia noted that Plaintiff had begun using

crutches in the four weeks prior to that visit. Id. Plaintiff told Dr. Urquia that he visited another

physician, Dr. Harbor, and had been prescribed some medication which did not improve his

symptoms, including Amitriptyline and NPH insulin at bedtime as well as Humalog.2 Id. Dr.

Urquia recommended continue on NPH insulin and Amitriptyline. (Tr. at 134.) Dr. Urquia noted

that Plaintiff's average blood sugar was about 379 and his medical history included surgery on his

right ankle. Id. The examination of Plaintiff showed difficulty in ambulation secondary to

weakness of his lower extremities. Id. No edema was noted in the extremities, but strength in the

lower extremities was listed as 3/5. Id. Plaintiff showed normal sensation to hot, cold, soft, and

painful stimuli as well as normal reflexes. Id. Dr. Urquia noted weakness in dorsiflexion and

plantar flexion, more so on the left than the right. Id. Additionally, when asked to ambulate,

Plaintiff exhibited a drop foot on the left.3

 Id.

On July 18, 2001, Plaintiff visited Dr. Urquia again, who noted that he seemed to be walking

better but still exhibited drop foot on the left. (Tr. at 133.) Dr. Urquia prescribed Neurontin to help

with neuropathy symptoms. (Tr. at 132.) Dr. Urquia also referred Plaintiff to Dr. Jaime C. Lim, for

evaluation of leg weakness and foot drop. Id. 

Dr. Lim examined Plaintiff on July 19, 2001, and took note of bilateral foot drop but

otherwise normal strength. (Tr. at 109.) He also noted that Plaintiff’s walking was somewhat

unsteady, but that he was able to walk without assistive devices. Id. On a separate visit on August

3, 2001, Dr. Lim noted degenerative disc disease. (Tr. at 105.)

 

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On August 13, 2001, Plaintiff received treatment from Dr. Urquia, who reported that Plaintiff

had become increasingly anxious and depressed and unable to follow his insulin regimen. (Tr. at

131.) Dr. Urquia was trying to get Plaintiff an appointment with Dr. Shaffer, a pain management

specialist, but had not yet been successful. Id.

Plaintiff met with Dr. Sundaresan, a neurosurgeon, on September 4, 2001. (Tr. at 110.) Dr.

Sundaresan reported that Plaintiff was neurologically intact and that although he had a displaced and

degenerative disc in his back, he was asymptomatic to the disc at this point. Id. Dr. Sundaresan

added that if the disc were to become symptomatic, the Plaintiff would become a candidate for

surgery. Id. On September 5, 2001, Dr. Urquia reported that Dr. Sundaresan did not want to operate

on Plaintiff because he felt that Plaintiff’s back was not the problem, but that ineffective blood-sugar

management was the problem. (Tr. at 129.) Dr. Urquia referred Plaintiff to a diabetes education

clinic to discuss insulin pumps. (Tr. at 128.)

On October 5, 2001, Plaintiff reported to Dr. Urquia that he could not tolerate his blood

sugar level falling below 200 without feeling hypoglycemic. (Tr. at 127.) Also, Plaintiff’s phone

had been disconnected, so he was experiencing difficulty in scheduling appointments with the

diabetes education center to which he had been referred. Id. Plaintiff was continuing physical

therapy at home and noticed significantly improved strength in his lower extremities. Id. Dr.

Urquia noted improved strength as 4/5 in lower extremities, and that Plaintiff’s left foot was weak

but showed no signs of drop foot as before. Id.

 The only evidence of Plaintiff seeking treatment for his depression in the record is from a

visit to Dr. Harvey C. Martin, M.D. (Tr. at 104.) In what was listed as a fifteen minute appointment

on March 15, 2000, Dr. Martin concluded that Plaintiff was subdued and depressed but remained

resistant to the idea of taking antidepressant medication. Id. Although Dr. Martin mentioned that

 

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 Page 175 of the ALJ hearing transcript is missing from the record. Lisa T. Attleson, Plaintiff's attorney, included

portions of the hearing transcribed in her correspondence to the Appeals Council on June 22, 2004. Any pertinent

information from page 175 was reconstructed from the transcription of the tapes of the hearing included with Ms.

Attleson’s correspondence.

5

they were to meet again in two months time, there are no records to show any subsequent visits. Id.

Dr. Urquia remarked that Plaintiff had been having difficulty at home and in his living situation

with his violent alcoholic brother from August to October of 2001. (Tr. at 127-31.) 

 On June 21, 2002, Plaintiff called Dr. Urquia’s office for a refill of a prescription. (Tr. at

142.) However, because Plaintiff had not been in the office in more than six months, the

prescription could not be refilled until Dr. Urquia saw him again. Id.

On September 8, 2003, Plaintiff visited Hillside Family Health Clinic for another

prescription refill. (Tr. at 139-141.) Plaintiff complained of leg pain, but a musculoskeletal exam

was within normal limits, with no difficulties in gait noted. (Tr. at 140.) He was diagnosed with

insulin dependant diabetes mellitus, diabetic neuropathy and Hepatitis C. (Tr. at 140.) 

3. Hearing Testimony

A hearing was held before the ALJ on October 23, 2003. (Tr. at 165.) Plaintiff appeared

personally and was represented by an attorney. (Tr. at 166.) Plaintiff testified that he was 38 years

old, had graduated from high school, and had attended some college. (Tr. at 169.) Plaintiff stated

that his last job was sometime prior to the hearing in 2003, and that he had to stop working because

he could not receive adequate accommodations for his strength and abilities. (Tr. at 173 & 17.)4

Plaintiff claimed that he could not lift more than 10 pounds and that he could not stand for extended

periods of time. Id. Plaintiff testified that although he had discussed getting an insulin pump, it was

not a viable option for him because he required much more insulin than the pump could handle

properly. (Tr. at 178.) Plaintiff claimed to be following his diet but still had problems controlling

his blood sugar, saying that he rarely was able to get it below 210. (Tr. at 178-179.) 

 

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Plaintiff testified that his diabetes made him lethargic and caused him blurry vision. (Tr. at

179.) He also stated that his doctor diagnosed him with peripheral neuropathy in his legs. Id. He

said that his right leg was worse than the left due to a previous surgery. (Tr. at 179.)

Plaintiff stated that he had trouble walking and had drop foot in both of his feet. (Tr. at

180.) He explained that was he was unbalanced walking on uneven ground, causing him to trip and

fall over, and that he could not stand in one place without shuffling or leaning on something. Id.

He said that although he did not always need the assistance of a cane, he used one when he was not

certain that the ground was level. Id.

Plaintiff explained that he felt only pain from the knees down, which made him feel as

though he was walking on stilts. (Tr. at 181.) He reported taking pain medications regularly, but

that these medications knocked him out and made him feel like he was hung-over when he

awakened. Id. Because of this, he could not drive or operate heavy machinery. Id.

Plaintiff stated that he took Neurontin which helped with symptoms for a time, but he could

not afford it and had to stop taking it. (Tr. at 181-82.) He said that he was unable to visit Dr.

Shaffer, the pain management specialist, first due to a heavy snow and second due to a long lapse

of time, making the recommendation unusable. (Tr. at 182.) Plaintiff said that his diabetes had

begun affecting his arms and kidneys, and that he had open sores on his arms and face. Id. Because

of this, he reported that he could not work in any food service business. Id. Plaintiff claimed he had

trouble sleeping due to leg cramps and spasms. (Tr. at 183-84.) He said he could not stand for

longer than 30 minutes and could not walk for more than 30 minutes without taking an hour and a

half to elevate his feet above his heart to reduce swelling in his calves. (Tr. at 184.) Plaintiff also

reported that he could not lift more than 10 pounds without losing his balance. (Tr. at 185.) 

Plaintiff stated that he was not in counseling and that he did not have a mental or emotional

 

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problem that needed to be dealt with by a professional. (Tr. at 190.)

 C. ALJ’s Findings

The ALJ issued his decision denying benefits on December 8, 2003. (Tr. at 34-41.) In his

findings, he determined that Plaintiff had not engaged in substantial gainful employment since the

alleged onset date of disability. (Tr. at 36.) The ALJ determined that Plaintiff’s diabetes mellitus

and degenerative disc disease were severe impairments but that there was insufficient evidence to

indicate that Plaintiff’s depression was a severe impairment within the meaning of the regulations.

(Tr. at 36, 37.) However, the ALJ concluded that Plaintiff’s impairments were not severe enough

to meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations

No. 4. (Tr. at 37.) In considering whether Plaintiff’s diabetes mellitus met Listing 9.08, the ALJ

noted that the impairment was reported as poorly controlled due to non-compliance and that it

improved with adequate treatment. Id. In addition, the ALJ noted that while Plaintiff did have

peripheral neuropathy, his left foot drop improved with physical therapy. Id.

In determining Plaintiff’s RFC, the ALJ found that Plaintiff’s “allegations of disabling pain

and discomfort are not supported by credible facts and findings from which it can be concluded that

he had an impairment that could reasonably be expected to cause the degree of pain and discomfort

which he alleged.” (Tr. at 38.) The ALJ noted Plaintiff’s relatively infrequent trips to the doctor;

Plaintiff had received no treatment for a year and a half and ran out of medication one month prior

to the hearing. Id. This occurred despite the fact that he was advised in October 2001, to get on his

insulin regimen to better control his diabetes. Id. Further, Plaintiff had been referred for a

consultative exam at agency expense but failed to keep the appointment. Id. The ALJ also

mentioned the fact that no treating doctors gave Plaintiff any restrictions on activity. Id.

The ALJ concluded that Plaintiff retained the RFC to perform a limited range of light work

 

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and a full range of sedentary work. (Tr. at 38.) He noted that Plaintiff’s

diabetic neuropathy affects his feet and causes some pain and weakness. Taking this into

consideration, the undersigned finds the claimant retains the residual functional capacity for

a limited range of light work due to his inability to stand and/or walk more than four hours

in an eight-hour workday.

Id. The ALJ found that Plaintiff was unable to perform his past relevant work. (Tr. at 39.) Because

the ALJ found Plaintiff to have no nonexertional limitations, the ALJ applied the MedicalVocational Guidelines (“Grids”) of Appendix 2, Subpart P of the Regulations and determined that

they directed a finding of “not disabled.” Id. Thus, the ALJ concluded that Plaintiff was not

disabled within the meaning of the Social Security Act. Id.

II. ANALYSIS

A. Legal Standards

1. Standard of Review

Judicial review of the Commissioner’s denial of benefits is limited to whether the

Commissioner’s position is supported by substantial evidence and whether the Commissioner

applied proper legal standards in evaluating the evidence. 42 U.S.C. §§ 405(g), 1383(c)(3);

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). Substantial evidence is defined as more

than a scintilla, less than a preponderance, and as being such relevant and sufficient evidence as a

reasonable mind might accept as adequate to support a conclusion. Leggett v. Chater, 67 F.3d 558,

564 (5th Cir. 1995). In applying the substantial evidence standard, the reviewing court does not

reweigh the evidence, retry the issues, or substitute its own judgment, but rather, scrutinizes the

record to determine whether substantial evidence is present. Greenspan, 38 F.3d at 236. A finding

of no substantial evidence is appropriate only if there is a conspicuous absence of credible

evidentiary choices or contrary medical findings to support the Commissioner’s decision. Johnson

 

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v. Bowen, 864 F.2d 340, 343-344 (5th Cir. 1988).

2. Disability Determination

To be entitled to social security benefits, a claimant must prove that he or she is disabled as

defined by the Social Security Act. Leggett, 67 F.3d at 563–64; Abshire v. Bowen, 848 F.2d 638,

640 (5th Cir. 1988). The definition of disability under the Social Security Act is “the inability to

engage in any substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); Anthony v.

Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).

The Commissioner utilizes a sequential five-step analysis to determine whether a claimant

is disabled: 

1. An individual who is working and engaging in substantial gainful activity

will not be found disabled regardless of medical findings.

2. An individual who does not have a “severe impairment” will not be found to

be disabled.

3. An individual who “meets or equals a listed impairment in Appendix 1” of

the regulations will be considered disabled without consideration of

vocational factors.

4. If an individual is capable of performing the work he has done in the past, a

finding of “not disabled” must be made.

5. If an individual’s impairment precludes him from performing his past work,

other factors including age, education, past work experience, and residual

functional capacity must be considered to determine if work can be

performed.

Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (summarizing 20 C.F.R. § 404.1520(b)-(f)).

Under the first four steps of the analysis, the burden lies with the claimant to prove disability. 

Leggett, 67 F.3d at 564. The analysis terminates if the Commissioner determines at any point during

 

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 Although this issue was not expressly listed as a basis for reversal, it was raised and briefed in the discussion of

Issue One in Plaintiff’s Brief. See Pl.’s Br. at 15. The Court therefore addresses it. 6

 This issue also was not expressly listed as a basis for reversal but was raised and briefed in Plaintiff’s discussion of

Issue One. See Pl.’s Br. at 14-15. The Court therefore addresses this issue as well.

10

the first four steps that the claimant is disabled or is not disabled. Id. Once the claimant satisfies

his or her burden under the first four steps, the burden shifts to the Commissioner at step five to

show that claimant is capable of performing other gainful employment available in the national

economy. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). This burden may be satisfied

either by reference to the Medical-Vocational Guidelines of the regulations or by expert vocational

testimony or other similar evidence. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). A

finding that a claimant is not disabled at any point in the five-step review is conclusive and

terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).

B. Issues for Review

Plaintiff presents the following issues for review:

(1) Whether the Plaintiff’s diabetes mellitus meets the listing in 9.08A;

(1.1) Whether the ALJ’s RFC finding equals the listing;5

(1.2) Whether the ALJ erred as to the credibility finding due to the failure to seek

treatment;6 and

(2) Whether the ALJ erred by failing to consider the effects of Plaintiff’s medication

in determining his RFC.

C. Issue One: Whether Plaintiff’s diabetes mellitus meets the listing in 9.08A.

Plaintiff claims that the ALJ’s finding that Plaintiff had no impairments which met a listing

was not supported by substantial evidence, and that the evidence in the record supports a finding that

his diabetes mellitus meets Listing 9.08A. (Pl.’s Br. at 10.)

The Listings “are descriptions of various physical and mental illnesses . . . most of which are

categorized by the body system they affect.” Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990).

 

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“Each impairment is defined in terms of several specific medical signs, symptoms, or laboratory test

results.” Id. at 530. “For a claimant to show that his impairment matches a listing, it must meet all

of the specified medical criteria.” Id. (emphasis in original). “An impairment that manifests only

some of those criteria, no matter how severely, does not qualify.” Id. (citing SSR 83-19). The

criteria in the Listings are designed to be “demanding and stringent.” Falco v. Shalala, 27 F.3d 160,

162 (5th Cir. 1994). This is because the Listings “were designed to operate as a presumption of

disability that makes further inquiry unnecessary.” Zebley, 493 U.S. at 532.

The claimant bears the burden of proving that his impairments meet or equal impairments

found within the Listings. Henson v. Barnhart, 373 F. Supp. 2d. 674, 685 (E.D. Tex. 2005)

(citing McCuller v. Barnhart, 72 Fed. Appx. 155, 158 (5th Cir. 2003); Selders v. Sullivan, 914

F.2d 614, 619 (5th Cir. 1990); 20 C.F.R. § 404.1526(a)). If a claimant fails to meet this burden,

the court must find that substantial evidence supports the ALJ’s finding. Henson, 2005 WL

1391161, at *7 (citing Selders, 914 F.2d at 620). However, “[w]here the claimant’s symptoms,

as described by the medical evidence, appear to match those described in the Listings, the ALJ

must provide an explanation as to why the claimant failed to meet or equal the Listings.” 

Kuleszo v. Barnhart, 232 F.Supp.2d 44, 51 -52 (W.D.N.Y. 2002) (citing Costanzo v. Apfel, 2000

WL 575660 at *3 (W.D.N.Y. Feb. 8, 2000)). 

The ALJ found that Plaintiff had diabetes mellitus and peripheral neuropathy. (Tr. at 37.)

However, the ALJ concluded that Plaintiff’s diabetes mellitus did not meet Listing 9.08. (Tr. at 37.)

In order to meet the Listing for diabetes under § 9.08A, a claimant must demonstrate neuropathy

evidenced by significant and persistent disorganization of motor function in two extremities

resulting in sustained disturbance of gross and dexterous movements, or gait and station. 20 C.F.R.,

Part 404, Subpart P, Appendix 1, § 9.08A. Section 11.00C notes that the assessment of a claimant’s

 

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motor function impairment “depends on the degree of interference with locomotion and/or

interference with the use of fingers, hands, and arms.” 20 C.F.R., Part 404, Subpart P, Appendix

1, § 11.00C. The ALJ concluded that Plaintiff’s diabetes mellitus did not meet 9.08A because it was

poorly controlled due to non-compliance but improved with adequate treatment, and because while

Plaintiff did have peripheral neuropathy, his left foot drop improved with physical therapy. (Tr. at

37.) 

Plaintiff is correct that there is evidence in the record demonstrating that he had neuropathy

in both lower extremities due to diabetes mellitus. (Tr. at 133-35, 127.) However, the record also

reflects that although plaintiff showed bilateral foot drop, strength was otherwise normal and

improved significantly after therapy, and he was able to walk without assistive devices despite his

complaints of pain and difficulty walking. (Tr. at 109, 127, 140, 180.) This evidence supports the

ALJ’s implicit finding that Plaintiff did not have “significant and persistent disorganization of motor

function in two extremities resulting in sustained disturbance of gross and dexterous movements,

or gait and station.” See 20 C.F.R., Part 404, Subpart P, Appendix 1, § 9.08A. Having carefully

reviewed the record, the Court finds there is substantial evidence to support the ALJ’s finding that

Plaintiff’s diabetes mellitus did not meet Listing 9.08A.

D. Issue 1.1: Does the ALJ’s RFC finding equal the listing in 9.08A?

Plaintiff argues that the ALJ’s finding as to Plaintiff’s RFC contradicts his conclusion that

Listing 9.08A was not met. (Pl.’s Br. at 15-16.) 

In setting forth Plaintiff’s RFC, the ALJ stated that Plaintiff’s

diabetic neuropathy affects his feet and causes some pain and weakness. Taking this into

consideration, the undersigned finds the claimant retains the residual functional capacity for

a limited range of light work due to his inability to stand and/or walk more than four hours

in an eight-hour workday.

 

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(Tr. at 38.) Plaintiff claims that the limitation on walking and/or standing “is consistent with the

presence of precisely the ‘sustained disturbance of gait and station’ called for by Sec. 9.08A.” (Pl.’s

Br. at 16.) 

While Plaintiff is correct in stating that the Listings do not require a total inability to walk

or stand, neither do they require a finding of disability when the impact of a claimant’s neuropathy

is less than disabling. While there is no doubt that Plaintiff does suffer from diabetic neuropathy

which negatively impacts his ability to stand and walk for long periods, the criteria in the Listings,

which create a presumption of disability, are designed to be demanding and stringent. See Falco,

27 F.3d at 162. The fact that Plaintiff has some difficulty standing and/or walking for more than

four hours in an eight-hour day does not equate to the severity required by Listing 9.08A. For this

reason, the Court finds that substantial evidence supports the conclusion that the ALJ’s RFC finding

did not meet Listing 9.08A.

E. Issue 1.2: Did the ALJ err as to credibility finding due to failure to seek treatment?

Plaintiff asserts that the ALJ erred in finding his testimony not credible. (Pl.’s Br. At 14-15.)

Specifically, Plaintiff states that the ALJ erred in relying on his lack of medical treatment and failure

to attend a consultative examination. Id.

 “Credibility determinations are generally the province of the ALJ and are entitled to

deference.” Lam v. Apfel, 2000 WL 354393, *4 (N.D. Tex. Apr. 5, 2000). Therefore, courts will

reverse an ALJ’s credibility determination only if it is “patently wrong.” Jens v. Barnhart, 347

F.3d 209, 213 (7th Cir. 2003). Social Security regulations instruct ALJs to conduct a sevenfactor analysis when determining the credibility of a claimant’s subjective complaints of pain. 

20 C.F.R. § 404.1529(c)(3). The ALJ’s “determination or decision must contain specific reasons

for the finding on credibility, supported by the evidence in the case record, and must be

 

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sufficiently specific to make clear to the individual and to any subsequent reviewers the weight

the adjudicator gave to the individual’s statements and the reasons for that weight.” SSR 96-7p. 

“If on [42 U.S.C.] § 405(g) review the court finds that the ALJ followed the proper procedures

and considered the relevant factors, the ALJ’s determination is ordinarily conclusive.” Lechner

v. Barnhart, 321 F. Supp. 2d 1015, 1027 (E.D. Wis. 2004). However, “since substantive

regulations have the force and effect of law, failure to employ the seven-factor analysis when

assessing credibility of subjective complaints constitutes legal error.” Parker v. Barnhart, 431 F.

Supp. 2d 665, 672 (E.D. Tex. 2006). “Such an error warrants a reversal unless harmless error

analysis indicates that ‘remand would be an idle and useless formality.’” Id. (quoting NLRB v.

Wyman-Gordon Co., 394 U.S. 759, 766 n. 6 (1969)).

In this case, the ALJ provided specific reasons for his credibility determination. At issue

then, is whether there is substantial evidence to support the bases upon which the ALJ relied in

making the determination. The ALJ found that Plaintiff’s “allegations of disabling pain and

discomfort are not supported by credible facts and findings from which it can be concluded that he

had an impairment that could reasonably be expected to cause the degree of pain and discomfort

which he alleged.” (Tr. at 38.) The ALJ noted Plaintiff’s relatively infrequent trips to the doctor,

including the fact that Plaintiff received no treatment for a year and a half and ran out of medication

one month prior to the hearing. Id. Plaintiff was referred for a consultative exam at agency expense,

but failed to keep the appointment. Id. The ALJ also mentioned the fact that no treating doctors

gave Plaintiff any restrictions on activity. Id. 

 Plaintiff does not argue with the facts as set forth by the ALJ. Rather, Plaintiff notes that

he provided an explanation at the hearing for his failure to see a pain management specialist and that

the ALJ did not inquire as to why Plaintiff missed the appointment with the consultative examiner.

 

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(Pl.’s Br. at 15.) He states that his testimony showed that during the period in which he was not

receiving treatment he was incarcerated three times, could no longer afford his prescription for

Neurontin, and had extremely limited financial resources. Id. However, Plaintiff does not allege

that he had no access to basic medical care. Although Plaintiff was unable to afford to see a pain

specialist, he does not explain his failure to continue basic treatment for his diabetes. Additionally,

the record supports the ALJ’s finding that Plaintiff’s treating physicians did not place any

restrictions on his activities. Because of the deference to be accorded to the ALJ’s credibility

determination, and because the ALJ did specify the reasons for his finding, the Court concludes that

substantial evidence supports the ALJ’s credibility determination.

F. Issue Two: Did the ALJ err by failing to consider the effects of Plaintiff’s medications in

determining his RFC?

Plaintiff claims that the ALJ’s RFC finding is not supported by substantial evidence because

he did not consider the side effects of Plaintiff’s medications on his capacity to work. (Pl.’s Br. at

17.) 

An individual’s RFC is the most he or she can still do despite recognized limitations. 20

C.F.R. § 404.1545. “RFC is an assessment of an individual’s ability to do sustained work-related

physical and mental activities in a work setting on a regular and continuing basis.” SSR 96-8p. An

ALJ may consider an individual to have no limitation or restriction with respect to a functional

capacity when there is no allegation of a physical or mental limitation or restriction of a specific

functional capacity, and no information in the case record that there is such a limitation or

restriction. Id. An individual’s RFC should be based on all of the relevant evidence in the case

record, including opinions submitted by treating physicians or other acceptable medical sources.

Id. Substantial evidence does not support an ALJ’s assessment of an individual’s RFC when the

 

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RFC does not incorporate nonexertional impairments supported by evidence in the record. Robinson

v. Barnhart, 248 F. Supp. 2d 607, 623 (S.D. Tex. 2003). Furthermore, an ALJ errs by failing to

evaluate medication side-effects and any impact on Plaintiff’s RFC when Plaintiff complains of drug

side effects. Brown v. Barnhart, 285 F. Supp. 2d 919, 935 (S.D. Tex. 2003) (finding reversible error

when the record documented several occasions where the plaintiff complained of side effects to his

medical providers and the ALJ failed to address the effects of treatment on the plaintiff’s RFC).

Plaintiff testified at the hearing that his medications made him sleep for twelve to fourteen

hours and then gave him a hangover and dry mouth. (Tr. at 181) However, there is no indication

in the record that Plaintiff addressed this with any of his physicians or that they felt that Plaintiff’s

medications negatively impacted his ability to go about his daily activities. (Tr. at 104-142.) A

plaintiff’s subjective complaints must be corroborated at least in part by objective medical

testimony. Houston v. Sullivan, 895 F.2d 1012, 1016 (5th Cir. 1989). The ALJ in the present case

had no objective medical evidence to support Plaintiff’s subjective testimony. Additionally, if a

claimant alleges that an ALJ erred in failing to consider the side effects of his medication, he must

show some evidence that these side effects contributed to his inability to work. Brumbelow v.

Apfel, 2001 WL 1543852, *11 (N.D. Tex. 2001). Because neither the objective medical evidence

nor Plaintiff’s testimony demonstrate that the side effects of Plaintiff’s medication contributed to

his inability to work, the Court concludes that substantial evidence supports the ALJ’s implicit

finding that the side effects of Plaintiff’s medication did not provide a substantial negative impact

on his RFC.

III.CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment, filed February 22,

2005, is hereby GRANTED and the final decision of the Commissioner is AFFIRMED. 

 

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SO ORDERED, on this 13th day of September, 2006.

 

___________________________________

IRMA CARRILLO RAMIREZ

UNITED STATES MAGISTRATE JUDGE

 

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