1

On February 12, 2007, Michael J. Astrue was sworn in as the Commissioner of Social Security. Pursuant to Rule 25(d)(1) of

the Federal Rules of Civil Procedure, Mr. Astrue is substituted as the defendant in this suit.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

MICHELLE NEMOEDE, as next friend of §

Deryn Tuz and Madison Tuz, and §

ATOYIA CLARK, as next fried of §

Randall Tuz and Damian Horn, as §

Substitute parties for §

DARREN JASON TUZ, Deceased §

§

Plaintiffs, §

§

v. § 2:05-CV-0129

§

MICHAEL J. ASTRUE, §

Commissioner of Social Security, §

§

Defendant.1 §

REPORT AND RECOMMENDATION

TO REVERSE THE COMMISSIONER’S DECISION

AND REMAND FOR FURTHER ADMINISTRATIVE ACTION

Plaintiffs MICHELLE NEMOEDE and ATOYIA CLARK bring this cause of action

pursuant to 42 U.S.C. § 405(g), seeking review of a final decision of defendant MICHAEL J.

ASTRUE, Commissioner of Social Security (Commissioner), denying DARREN JASON TUZ’s

(plaintiffs’ decedent) application for disability benefits. Both parties have filed briefs in this

cause. For the reasons hereinafter expressed, the undersigned United States Magistrate Judge

recommends the Commissioner’s decision finding plaintiff not disabled and not entitled to

benefits be REVERSED and the case REMANDED for proceedings consistent with this opinion.

 

 

FILED

SEPTEMBER 8, 2008

 

 

 

 

 

 KAREN S. MITCHELL

CLERK, U.S. DISTRICT COURT 
 2

McArdle’s syndrome (also known as McArdle’s disease or phosphorylase deficiency) is a genetic disorder affecting the way

muscles process glycogen. When individuals with McArdle’s exercise or otherwise engage in strenuous activity, they experience

muscle cramps, pain, and fatigue due to the breakdown of muscle cells. Resting helps to alleviate the symptoms. When severe

exacerbations occur, Mc

Ardle’s patients may experience acute renal failure. (Tr. 297); (Plaintiff’s Brief app. 1).

SS\R&R\NEMOEDE-129.STEP5:3 2

I.

THE RECORD

Plaintiffs’ decedent (claimant) applied for disability insurance benefits and supplemental

security income benefits under Titles II and XVI of the Social Security Act on September 11,

2002, with a protective filing date of September 9, 2002. (Transcript [hereinafter Tr.] 52, 322). 

By his application, claimant alleged an onset date of August 9, 2002, and listed his impairments

as severe seizures, Mc

Ardle’s syndrome,2 rhabdomyolysis, anxiety disorder, and liver problems. 

(Tr. 52). The Social Security Administration denied benefits initially and upon reconsideration.

 An administrative hearing was held before Administrative Law Judge (ALJ) Gary L.

Vanderhoof on October 21, 2003. (Tr. 361-377). At the time of the hearing, claimant was 31

years old with a ninth grade education and past work experience as a disc jockey, a shirt presser,

and a cook. (Tr. 18). On January 13, 2004, the ALJ rendered an unfavorable decision, finding

claimant not disabled and not entitled to benefits at any time relevant to the decision. (Tr. 17-

24). The ALJ found that claimant had not engaged in substantial gainful activity since

claimant’s alleged onset date. (Tr. 18, 22, Finding No. 2). The ALJ further found claimant

suffered from a seizure disorder, anxiety disorder, and Mc

Ardle’s syndrome, all of which were

severe impairments, but not severe enough to meet or medically equal one of the listed

impairments in Appendix 1, Subpart P, Regulations No. 4. (Tr. 19, 23, Finding Nos. 3 and 4). 

The ALJ assessed claimant as having a residual functional capacity (RFC) for a limited range of
 3

In his findings, the ALJ stated, “[C]laimant has the following functional capacity: to perform light work that allows for a

sit/stand option and does not require working around unprotected heights or moving machinery. [C]laimant cannot perform work

requiring driving, balancing or climbing of ladders, ropes or scaffolds and he is limited to moderate paced work.” (Tr. 23,

Finding No. 6).

SS\R&R\NEMOEDE-129.STEP5:3 3

light work.3 (Tr. 20). Although the ALJ found that claimant could not perform any of his past

work, he ultimately found, based upon vocational expert testimony, that claimant retained the

ability to make a successful adjustment to other work existing in significant numbers in the

national economy. (Tr. 21-22). Therefore, the ALJ found that claimant was not disabled. (Tr.

23, Finding No. 13).

Upon the Appeals Council’s denial of claimant’s request for review on March 10, 2004,

the ALJ’s determination that claimant was not under a disability became the final decision of the

Commissioner. (Tr. 5-8). On March 14, 2004, claimant died at the age of 31 as a result of

cardiomegaly, with seizures and McArdle’s Syndrome listed as contributory factors. (Tr. 339). 

Plaintiffs now seek judicial review of the denial of benefits pursuant to 42 U.S.C. § 405(g) on

behalf of claimant’s minor children.

II.

STANDARD OF REVIEW

In reviewing disability determinations by the Commissioner, this Court’s role is limited

to determining whether substantial evidence exists in the record, considered as a whole, to

support the Commissioner’s factual findings and whether any errors of law were made. 

Anderson v. Sullivan, 887 F.2d 630, 633 (5th Cir. 1989). Substantial evidence is “such relevant

evidence as a responsible mind might accept to support a conclusion. It is more than a mere

scintilla and less than a preponderance.” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). To

determine whether substantial evidence of disability exists, four elements of proof must be
SS\R&R\NEMOEDE-129.STEP5:3 4

weighed: (1) objective medical facts; (2) diagnoses and opinions of treating and examining

physicians; (3) claimant’s subjective evidence of pain and disability; and (4) claimant’s age,

education, and work history. Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (citing

DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972)).

If the Commissioner's findings are supported by substantial evidence, they are

conclusive, and the reviewing court may not substitute its own judgment for that of the

Commissioner, even if the court determines the evidence preponderates toward a different

finding. Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980). Conflicts in the evidence are

to be resolved by the Commissioner, not the courts, Laffoon v. Califano, 558 F.2d 253, 254 (5th

Cir. 1977), and only a "conspicuous absence of credible choices" or "no contrary medical

evidence" will produce a finding of no substantial evidence. Hames v. Heckler, 707 F.2d 162,

164 (5th Cir. 1983). Stated differently, the level of review is not de novo. The fact that the ALJ

could have found plaintiff to be disabled is not the issue. The ALJ did not do this, and the case

comes to federal court with the issue being limited to whether there was substantial evidence to

support the ALJ’s decision.

III.

ISSUES

The primary issue before the Court is whether the Commissioner’s decision that claimant

was not disabled is supported by substantial evidence. Plaintiffs also present the following

subordinate issues:

1. The ALJ failed to fully and fairly develop the evidence by failing to adequately

consider whether claimant’s impairments equaled a listing;

2. The ALJ erred in failing to give proper weight to the opinion of claimant’s

treating physician that claimant was disabled;
SS\R&R\NEMOEDE-129.STEP5:3 5

3. The ALJ erred in determining that claimant’s testimony and reports of pain and

functional limitations lacked credibility; and,

4. The Commissioner erred in failing to give consideration to medical evidence

submitted after the ALJ’s decision.

IV.

MERITS

A.

Medical Equivalence

In their first point of error, plaintiffs allege the ALJ erred by failing to fairly and fully

develop the record in regard to whether claimant’s impairments equaled a listing at Step 3 of the

five-step sequential analysis. Specifically, plaintiffs argue that while the ALJ considered

whether claimant met any of a number of listings, he did not consider whether claimant equaled

any of the listings. (Plaintiff’s Brief at 12). Furthermore, plaintiffs argue that the ALJ erred by

not obtaining a medical opinion in making the equivalence determination. (Plaintiff’s Brief at

14).

Title 20 C.F.R. § 404.1526(a) states:

We will decide that your impairment(s) is medically equivalent to a

listed impairment in appendix 1 if the medical findings are at least

equal in severity and duration to the listed findings. We will compare

the symptoms, signs, and laboratory findings about your

impairment(s), as shown in the medical evidence we have about your

claim, with the listed impairment. If your impairment is not listed,

we will consider the listed impairment most like your impairment to

decide whether your impairment is medically equal. If you have

more than one impairment, and none of them meets or equals a listed

impairment, we will review the symptoms, signs, and laboratory

findings about your impairments to determine whether the

combination of your impairments is medically equal to any listed

impairment.

The Commissioner will consider an impairment as equaling a listed impairment only if all of the
SS\R&R\NEMOEDE-129.STEP5:3 6

criterion for a listed impairment are satisfied. Sullivan v. Zebley, 493 U.S. 521, 531, 110 S.Ct.

885, 892, 107 L.Ed.2d 967 (1990). “A claimant cannot qualify for benefits under the

‘equivalence’ step by showing that the overall functional impact of his unlisted impairment or

combination of impairments is as severe as that of a listed impairment.” Id. at 531, 110 S.Ct. at

891. In Zebley, the Supreme Court recognized that the regulations created more restrictions at

Step 3 than those created by statute. Id. at 533, 110 S.Ct. at 893. The listings exclude certain

individuals, such as those “whose impairment would not prevent any and all persons from doing

any kind of work, but which actually precludes the particular claimant from working, given its

actual effects on him . . . [or] who have unlisted impairments, or combinations of impairments,

that do not fulfill all the criteria for any one listed impairment.” Id. at 534, 110 S.Ct. at 893

(emphasis added). However, individuals who fail to meet or equal a listing may still be found

disabled at either Step 4 or Step 5. Id.

In his decision, the ALJ discussed several listed impairments, comparing those listings to

claimant’s severe impairments. The ALJ reviewed Listings 11.02 (convulsive epilepsy), 11.03

(nonconvulsive epilepsy), 11.04 (central nervous system vascular accident), 11.13 (muscular

dystrophy), and 12.06 (anxiety related disorders). Because the record contained no EEG study

or detailed description of a seizure pattern, the ALJ found that the evidence did not support a

finding of equivalence with Listings 11.02, 11.03, or 11.04. Furthermore, the ALJ found that

claimant’s impairments did not equal Listing 11.13 because claimant did not experience

persistent disorganization of motor function. Finally, the ALJ found that claimant’s impairments

did not equal Listing 12.06 because claimant did not experience marked limitation of function in
 4

The ALJ found that claimant had only mild limitations in his activities of daily living, in social functioning, and in

maintaining concentration, persistence, and pace, and that claimant had never experienced any periods of decompensation. (Tr.

19).

SS\R&R\NEMOEDE-129.STEP5:3 7

two or more areas, as required by that listing.4 (Tr. 19). 

Although the difference between meeting a listing and equaling a listing seems to be little

more than one of semantics, the Commissioner has acted within his authority in creating strict

regulations for a presumptive finding of disability, and the courts have upheld those regulations. 

The ALJ did not err in following the law in finding claimant’s impairments did not equal a

listing, and no abuse of discretion was committed.

Furthermore, the ALJ did not err by failing to obtain a medical opinion as to whether any

or all of claimant’s impairments in combination equaled a listing. Only those medical opinions

made by a designated medical consultant—usually a state agency consulting physician—must be

considered. 20 C.F.R. § 404.1526(b). Although (according to Social Security Ruling (SSR) 96-

6p), the ALJ does have the discretion to obtain an additional medical opinion, i.e., an opinion in

addition to that of the state agency medical examiners, under certain circumstances, the ALJ is

not required to do so. Under SSR 96-6p, an ALJ may rely on the signature of a state agency

physician on the Disability Determination and Transmittal Form in lieu of obtaining testimony

regarding whether a claimant’s impairments are equivalent to a listing. Such signature acts as an

assurance that a medical professional has considered all of the evidence of record and has

determined that the claimant’s impairments do not meet or equal a listing. The only situations

requiring an ALJ to obtain an updated expert opinion is when the signs, symptoms, and

laboratory tests in the case record suggest to the ALJ that a finding of medical equivalence may

be reasonable, despite the state agency’s findings, or when additional medical evidence is

submitted after the agency’s determination that the ALJ believes could change the equivalency
SS\R&R\NEMOEDE-129.STEP5:3 8

determination. SSR 96-6p, 1996 WL 374180, at *4.

In this case, the record contains Disability Determination and Transmittal forms at both

the initial and reconsideration levels, both of which bear signatures of Texas Department of

Disability Services (DDS) physicians. The ALJ could rely on those signatures as a

determination by medical experts that claimant’s impairments did not equal a listing. 

Determining that no additional medical opinion was necessary was completely within the

discretion of the ALJ. Claimant submitted no new evidence between the time DDS rendered its

decisions and the ALJ hearing, and, apparently, the ALJ did not believe the medical records

indicated it would be reasonable to find claimant’s impairments equal to a listing. Hence, the

ALJ was free to rely on the DDS determination and did not err by failing to obtain testimony

from a medical expert on whether claimant’s impairments equaled a listing.

B.

Treating Specialist’s Opinion

In their second point of error, plaintiffs allege the ALJ erred by failing to give proper

weight to the opinion of claimant’s treating specialist, Dr. Douglas Lewis, D.O. Normally, a

treating physician’s opinion regarding the nature and severity of a claimant’s impairments and

limitations should be accorded great, if not controlling, weight. Newton v. Apfel, 209 F.3d 448,

455 (5th Cir. 2000). The treating physician’s opinion should be given controlling weight if it is

well-supported by objective medical evidence, such as diagnostic tests, and it is not inconsistent

with other substantial medical evidence in the record. Id. Additionally, “a specialist’s opinion is

to be accorded greater weight than a non-specialist’s opinion.” Moore v. Sullivan, 919 F.2d 901

(5th Cir. 1990). However, a treating physician’s opinion as to whether a claimant is disabled is

not considered a medical opinion, and, therefore, is not entitled to controlling weight. 20 C.F.R.
SS\R&R\NEMOEDE-129.STEP5:3 9

§§ 404.1527(e), 416.927(e). The ultimate determination of disability is reserved to the

Commissioner, although the Commissioner must still give deference to the opinion of a treating

physician, even if such opinion is not entitled to controlling weight. Newton, 209 F.3d at 456.

The ALJ may reject the medical opinion of a treating physician only if medical evidence

exists supporting a contrary conclusion. Id. at 455. When good cause is shown, an ALJ may

give little or no weight to the opinion of a treating physician; good cause to discount a treating

physician’s opinion relative to other medical opinions may exist “where the treating physician’s

evidence is conclusory, is unsupported by medically acceptable clinical, laboratory, or diagnostic

techniques, or is otherwise unsupported by the evidence.” Id. at 455-456. Before declining to

give a treating physician’s opinion controlling weight, the ALJ must first consider the following

factors:

(1) the physician’s length of treatment of the claimant,

(2) the physician’s frequency of examination,

(3) the nature and extent of the treatment relationship,

(4) the support of the physician’s opinion afforded by the

medical evidence of record,

(5) the consistency of the opinion with the record as a whole,

and

(6) the specialization of the treating physician.

Id. at 456.

In his decision, the ALJ made the following determination:

The opinion of Dr. Lewis is only partially supported by the objective

medical evidence and is contrary to the other medical opinions in the

record. More recent medical records from another treating physician,

Benjamin Glover, M.D., indicate that the claimant’s medical

condition is currently stable. . . .

Thus, while I am considering the opinion of Dr. Lewis, I give greater

weight and credibility to the other medical opinions in the record and

they are more consistent with the objective medical findings.
 5

In his letter of April 3, 2003, Dr. Lewis stated he had been treating claimant, primarily for his epilepsy, since April 1997. 

(Tr. 239). The medical records indicate that Dr. Glover had a treatment relationship with claimant for approximately one year.

SS\R&R\NEMOEDE-129.STEP5:3 10

The ALJ erred in finding Dr. Lewis’ opinion inconsistent with other medical opinions and the

record as a whole. The opinion of Dr. Glover, upon which the ALJ relies, is nothing more than a

simple chart notation regarding a single visit on June 10, 2003. (Tr. 247). In comparison with

the depth and length of Dr. Lewis’ treatment relationship,5

 as well as Dr. Lewis’ specialization in

neurology, Dr. Glover’s opinion is not an opinion entitled to greater weight than Dr. Lewis’

opinion. Further, Dr. Glover’s opinion is not inconsistent with Dr. Lewis’ opinion. Given the

intermittent nature of McArdle’s syndrome and claimant’s seizure disorder, the fact that claimant

may have been stable at a certain point in time does not contradict a finding that, overall,

claimant’s condition was severe. Likewise, “stable” indicates no change in a condition, and does

not mean an improvement in that condition. Dorland’s Medical Dictionary 1567 (28th ed.

1997). Therefore, a notation that claimant’s McArdle’s was stable does not contradict any of Dr.

Lewis’ medical opinions.

Moreover, Dr. Glover was mistaken in his belief that claimant had suffered no seizures

after July 2002: the medical records from Hereford Regional Medical Center, as well as from Dr.

Lewis’ office, reflect claimant suffered a seizure on September 24, 2002. (Tr. 221-225, 242-

243). Thus, the ALJ was mistaken in relying on a single statement by Dr. Glover, which itself

was based on mistaken facts, over the opinion of Dr. Lewis.

Although the ALJ did not err by failing to give controlling weight to Dr. Lewis’ opinion

that claimant was completely disabled, he did err in failing to give proper weight to Dr. Lewis’

medical opinion as to the impact claimant’s impairments had upon his day-to-day functioning. 

No contradictory medical opinion existed in the evidence. Therefore, Dr. Lewis’ opinion as to
 6

In a form for the Texas Department of Human Services, Dr. Lewis stated, in regard to claimant’s prognosis, “No cure for

muscle disease. The seizure disorder can continue to have breakthrough seizures which may trigger acute exacerbation of

muscle disease risking renal failure each time. [I]n addition, exacerbations are unpredictable and potentially fatal depending on

[the] situation.” (Tr. 241). Dr. Lewis’ opinion is supported by the record, which reflects claimant suffered seizures resulting in

acute renal failure, despite being on seizure medication. (Tr. 160, 195).

 7The ALJ failed to incorporate the intermittent nature and unpredictable exacerbation of claimant’s impairments in his

disability determination, which further undermines the ALJ’s decision. When presented with a condition that by its very nature

is intermittent, the ALJ must take such a factor into consideration in determining whether a claimant can not only obtain, but also

maintain, employment. Watson v. Barnhart, 288 F.3d 212, 217-218 (5th Cir. 2002). By erring in failing to properly credit Dr.

Lewis’ opinion and incorporate such into his decision, the ALJ committed further error because he made no finding as to

claimant’s ability to maintain employment. Moreover, the ALJ erred by not addressing claimant’s ability to maintain

employment in light of the vocational expert (VE) testimony. The ALJ posed a hypothetical to the VE regarding the ability of

someone with an RFC for light work in an unskilled position to maintain employment if he had to miss work several days a

month; the VE indicated that such a person could not maintain work. (Tr. 375-376).

SS\R&R\NEMOEDE-129.STEP5:3 11

the nature and severity of claimant’s impairments and limitations was entitled to controlling

weight.6 Dr. Lewis’ opinion was not, as the ALJ alleged, inconsistent with claimant’s daily

functioning. As discussed below, the ALJ misinterpreted evidence in the record, misreading

claimant’s daily activity questionnaires to establish a greater level of functioning than actually

existed or was supported by the record. The ALJ did incorporate, somewhat, Dr. Lewis’ opinion

as to functional limitations in the ALJ’s RFC determination.7 (Tr. 23, Finding No. 6, 239).

However, because no contradictory medical evidence existed in the record and because the ALJ

did not show good cause for failing to give Dr. Lewis’ medical opinion controlling weight, he

committed error.

C.

Claimant’s Credibility

In their fourth point of error, plaintiffs allege the ALJ erred in finding claimant lacked

credibility. In evaluating the credibility of a claimant’s alleged symptoms, including pain, the

ALJ must consider seven factors in addition to objective medical evidence. Those factors are:

(1) The individual’s daily activities;

(2) The location, duration, frequency, and intensity of the

individual’s pain or other symptoms;

(3) Factors that precipitate and aggravate the symptoms;

(4) The type, dosage, effectiveness, and side effects of any

medication the individual takes or has taken to alleviate pain
SS\R&R\NEMOEDE-129.STEP5:3 12

or other symptoms;

(5) treatment, other than medication, the individual receives or

has received for relief of pain or other symptoms;

(6) Any measures other than treatment the individual uses or has

used to relieve pain or other symptoms; and

(7) Any other factors concerning the individual’s functional

limitations and restrictions due to pain or other symptoms.

SSR 96-7p, 1996 WL 374186 (citing 20 C.F.R. §§ 404.1529(c), 416.929(c)). “Pain alone can be

disabling, even when its existence is unsupported by objective medical evidence if linked to a

medically determinable impairment.” Scharlow v. Schweiker, 655 F.2d 645, 648 (5th Cir. Unit

A 1981) (citations omitted). Thus, “the ALJ must consider subjective evidence of pain and

disability as testified to by the claimant; failure to give consideration to the subjective evidence

of pain and disability as testified to by the [claimant] is reversible error.” Id.

While the Commissioner’s interpretive rulings do not carry “the force and effect of law,

when an agency violates its own rules and prejudice results, the proceedings are tainted and any

actions resulting from the proceeding cannot stand.” Prince v. Barnhart, 418 F.Supp.2d 863,

870 (E.D. Tex. 2005) (citing Hall v. Schweiker, 660 F.2d 116, 119 (5th Cir. 1981)).

 The ALJ made the following finding as to claimant’s credibility:

The claimant’s testimony and reports of pain and functional

limitations was not supported by the medical evidence overall and

therefore, lacked credibility.

Specifically, while the claimant alleges severe disabling muscle pain,

the objective medical records indicate that his muscle pain is directly

related to his seizures and resolves after a few days. As long as his

seizures are controlled the claimant does well. The claimant

experiences occasional exacerbations of his condition when he has

seizures. The exacerbations are so severe that he must be

hospitalized for several days to control his symptoms. He also

experiences kidney failure on these occasions.

(Tr. 20). The ALJ apparently failed to evaluate claimant’s credibility using SSR 96-7p and did
 8

The closest the ALJ came to discussing specifics about claimant’s testimony was in his discussion of whether or not

claimant’s anxiety disorder met or equaled a listing. (Tr. 19). However, even there, it is clear the ALJ failed to closely consider

the record. The ALJ did not mention claimant’s statements that he required frequent rest after even a few minutes of any of the

activities listed in the decision. (See Tr. 89-97A).

 9Even then, however, the ALJ acknowledges medical evidence that supports claimant’s allegations, i.e., recounting the severe

exacerbations requiring hospitalization for extended periods.

SS\R&R\NEMOEDE-129.STEP5:3 13

not mention any specifics regarding claimant’s hearing testimony.8 There is not even a mention

of SSR 96-7p or the relevant regulations to show the ALJ considered either in rendering his

decision. Nothing in his decision provides an indication the ALJ properly evaluated claimant’s

credibility, even if he simply failed to articulate such evaluation. The ALJ merely states that

claimant’s allegations are not credible in light of the medical evidence.9

Although in the overwhelming majority of cases the ALJ’s credibility determination

would be supported by substantial evidence and thus, would be immune from reversal and

remand on the issue of credibility, that is not the case here. The ALJ only analyzed claimant’s

complaints of pain in light of the objective medical evidence, failing to evaluate claimant’s

credibility based on the criteria set out in the regulations. This is unlike cases where the ALJ

evaluated the subjective allegations, i.e., discussed claimant’s testimony, and gave some

indication that he considered the record as a whole, but ultimately decided the allegations were

not credible in light of the medical evidence. Thus, the ALJ could not merely state the medical

evidence did not support claimant without analyzing the subjective evidence.

Claimant testified to his limitations at the hearing. Claimant was consistent in his

statements regarding his need for frequent rest when his muscles locked up. (Tr. 89-97A). His

girlfriend provided a letter with examples of the impact of claimant’s impairments. (Tr. 103-

106). Dr. Lewis stated several times that claimant’s ability to work was dubious in light of his
 10For example, after an appointment on October 10, 2002, Dr. Lewis noted, “It has been relatively amazing thus far, that

[claimant] has been able to work as long as he has. The unpredictability of the seizure disorder, as well as the McArdle’s

syndrome would leave him as a somewhat unreliable employee.” (Tr. 243).

SS\R&R\NEMOEDE-129.STEP5:3 14

impairments.10 (Tr. 239-243). Yet, the ALJ failed to discuss, or apparently, even consider, any

of this information of record in rendering his credibility determination. The Fifth Circuit does

not require formalistic compliance with rules to uphold an ALJ’s opinion. Falco v. Shalala, 27

F.3d 160, 164 (5th Cir. 1994). However, some indication must exist, be it even a mere mention 

of the relevant regulations or ruling, that the ALJ complied with the rules and considered all of

the evidence. There is no such indication here.

In light of the record as a whole, the consistency of claimant’s allegations, the lack of

contradictory medical evidence, and Dr. Lewis’ statements regarding claimant’s limitations, the

ALJ did not commit harmless error in failing to properly evaluate claimant’s subjective

complaints. Therefore, this case must be remanded for a proper evaluation of the credibility of

claimant’s alleged pain and other symptoms.

D.

Post-Decision Medical Records

In their final point of error, plaintiffs allege the Commissioner erred in failing to consider

medical records sent to the Appeals Council before the filing of the instant suit. This allegation

is without merit. The records plaintiffs allege the Commissioner failed to consider relate to

claimant’s death on March 14, 2004, four days after the Appeals Council denied review of the

ALJ’s decision. Furthermore, the records were not mailed to the Appeals Council until July 2,

2004, almost four months after the Appeals Council denied review. (Tr. 336). The Appeals

Council must consider additional evidence submitted while a request for review is pending under

certain circumstances. See 20 C.F.R. § 404.970(b). Likewise, records submitted for the first
SS\R&R\NEMOEDE-129.STEP5:3 15

time to the Appeals Council while a request for review is pending become a part of the record for

purposes of appeal. Higginbotham v. Barnhart, 405 F.3d 332, 337 (5th Cir. 2005). However, in

this case, the records were not submitted until several months after the Appeals Council rendered

its decision. Therefore, the Commissioner did not err by failing to consider these records.

V.

RECOMMENDATION

THEREFORE, for all of the reasons set forth above, it is the opinion and

recommendation of the undersigned to the United States District Judge that the decision of the

defendant Commissioner finding plaintiff not disabled and not entitled to a period of disability

benefits be REVERSED and the case be REMANDED for further administrative proceedings.

VI.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Report and

Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 8th day of September 2008.

_____________________________________

CLINTON E. AVERITTE

UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the

event a party wishes to object, they are hereby NOTIFIED that the deadline for filing objections is

eleven (11) days from the date of filing as indicated by the “entered” date directly above the

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(B), or transmission by
SS\R&R\NEMOEDE-129.STEP5:3 16

electronic means, Fed. R. Civ. P. 5(b)(2)(D). When service is made by mail or electronic means,

three (3) days are added after the prescribed period. Fed. R. Civ. P. 6(e). Therefore, any objections

must be filed on or before the fourteenth (14th) day after this recommendation is filed as

indicated by the “entered” date. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of

Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States

District Courts for the Northern District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the Report

and Recommendation.” Objecting parties shall file the written objections with the United States

District Clerk and serve a copy of such objections on all other parties. A party’s failure to timely

file written objections to the proposed findings, conclusions, and recommendation contained in this

report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the

unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the

Magistrate Judge in this report and accepted by the district court. See Douglass v. United Services

Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988).