1 The following background comes from the transcript of the administrative proceedings, which is

designated as “Tr.”

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

THELMA L. LASSETER, §

 §

Plaintiff, §

 §

v. § Civil Action No. 7:06-CV-14-BH

 §

COMMISSIONER OF SOCIAL §

SECURITY ADMINISTRATION, §

 §

Defendant. § Consent Case

MEMORANDUM OPINION AND ORDER

Pursuant to the provisions of Title 28, United States Code, Section 636(c), and an Order of

the Court dated April 25, 2006, in implementation thereof, subject cause has been transferred to the

undersigned United States Magistrate Judge. Before the Court are Brief for Plaintiff, filed August

19, 2006, and Defendant’s Brief in Response to Plaintiff’s Brief, filed October 17, 2006. Plaintiff

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

the Court finds that the final decision of the Commissioner should be AFFIRMED. 

I. BACKGROUND1

A. Procedural History

Thelma Lasseter (“Plaintiff”) seeks judicial review of a final decision by the Commissioner

of Social Security (“Commissioner”) denying her claim for supplemental security income. Plaintiff

filed an application for Supplemental Security Income under Title XVI of the Social Security Act

on March 28, 2003. (Tr. at 54-56). Plaintiff claimed she was disabled due to degenerative disc
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disease with spinal fusion. (Tr. at 75). Plaintiff’s application was denied initially and upon

reconsideration. (Tr. at 27-32, 35-37). Plaintiff timely requested a hearing before an Administrative

Law Judge (“ALJ”). (Tr. at 38.) A hearing, at which Plaintiff personally appeared and testified, was

held on March 2, 2005. (Tr. at 185-220). On April 7, 2005, the ALJ issued his decision finding

Plaintiff not disabled. (Tr. at 12-20). 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. at 4-6). Thus, the ALJ’s decision became the final decision of

the Commissioner. (Tr. at 4). Plaintiff timely appealed the Commissioner’s decision to the United

States District Court pursuant to 42 U.S.C. § 405(g) on January 23, 2006.

B. Factual History

1. Age, Education, and Work Experience 

Plaintiff was born on June 3, 1960. (Tr. at 54). She earned a high school equivalency degree

(“GED”) and attended college for one year. (Tr. at 81, 190). She previously worked as a hostess

at a restaurant, a cashier at several grocery stores and McDonald’s, and as a maid. (Tr. at 66).

2. Medical Evidence

Plaintiff has a history of cervical and lumbar disc disease. (See e.g., 139-84). On December

27, 2002, Dr. Sanjoy Sundaresan, M.D., a neurologist, ordered an MRI of Plaintiff’s lumbar spine.

(Tr. at 120; see Tr. at 126). Dr. Paul Renton, M.D., a radiologist, interpreted the MRI to show “(1)

[s]mall, right lateral disc bulge at the L5-S1 level. If clinically relevant, symptoms should be

referable to the right L5-S1 nerve root distribution. (2) Otherwise, negative MRI of the lumbar

spine.” (Tr. 120). On December 30, 2002, Dr. Terry R. Seegers, M.D., a radiologist, performed an

MRI of Plaintiff’s cervical spine that was requested by Dr. Sundaresan. (Tr. at 118). The MRI of
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the cervical spine showed “(1) [p]ost surgical changes at C5-C6 with fusion of the disc space at that

level. (2) Disc bulges are present at C4-C5 and C6-C7, causing spinal canal stenosis.” (Tr. 118).

Also on December 30, 2002, Dr. Seegers performed an MRI of Plaintiff’s thoracic spine that showed

“(1) Small, right lateral HNP [herniated nucleus pulposus] at T10-T11.” (Tr. at 119). He also

remarked that “[t]here is some mild neural foraminal stenosis on the right at this level. Images of

spondylosis are seen with disc space narrowing at multiple levels.” Id. 

On February 6, 2003, Dr. Sundaresan entered a note regarding a recent examination of

Plaintiff. (Tr. at 117). He wrote that Plaintiff continued to have severe radiating pain in her neck

and lower back and that MRIs showed disc bulges at the C4-5, C6-7, and L5-S1 levels. Id. He also

noted that numerous conservative treatments had failed. Id. 

On May 16, 2003, Dr. Casner, a non-examining State Agency Medical Consultant (“SAMC”)

reviewed Plaintiff’s available medical records. (Tr. at 106-113). Dr. Casner noted Plaintiff’s C4-5,

C6-7, and L5-S1 disc bulges and that Plaintiff could walk without assistance. (Tr. at 107-08). He

determined that Plaintiff’s allegations of disability were only partially supported by the medical

evidence and that they did not rise to the level of a listed disability. (Tr. at 111). 

On June 12, 2003, Kimberly Havins, R.N., C-F.N.P., examined Plaintiff during her visit to

the office of Dr. Danny Bartel, M.D., a neurologist. (Tr. at 104). Plaintiff reported that she

continued to have “neck pain and lower back pain” and that she was currently seeing Dr. Sundaresan

who recommended surgery. Id. Plaintiff took Lortab and Soma for her pain, and she stated the

medications were effective. Id. On examination, Nurse Havins noted “some decreased range of

motion in her cervical spine in either direction with paraspinal muscle tenderness that extends into

her trapezius muscles and scapular areas.” Id. Plaintiff also had paraspinal muscle tenderness in
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her lumbar spine that extended into her iliac crest areas. Id. Plaintiff had a straight leg raising at

60 degrees on the right. Id. Her reflex and sensory tests were unremarkable, and Plaintiff walked

“with a wide based gait without assistance.” Id. Nurse Havins diagnosed Plaintiff with (1) cervical

disc disease; and (2) lumbar disc disease. Id. Nurse Havins prescribed Celebrex “as adjunct

treatment to her pain medicine” and requested to see Plaintiff again in two to three months. Id. 

On July 10, 2003, Plaintiff saw Jimmy Whetsell, P.A.-C, at Dr. Sundaresan’s clinic. (Tr. at

116). Plaintiff reported that her neck and lower back pain were severe and getting progressively

worse. Id. On examination, Mr. Whetsell noted that Plaintiff ambulated without assistance and was

“grossly neurologically stable.” (Tr. 116).

On July 23, 2003, Dr. Sundaresan performed a thoracolumbar discogram that showed

“[a]nnular tear/internal disk disruption [at] L4-5 with moderate concordant pain.” (Tr. 115). Dr.

Sundaresan performed a cervical discogram on August 6, 2003, that showed “[a]nnular tear/internal

disk disruption [at] C45, 6-7 with moderate concordant pain.” (Tr. 114). 

On September 12, 2003, Plaintiff returned to Dr. Bartel’s clinic for a follow-up exam with

Nurse Havins. (Tr. at 135). Plaintiff reported radiating neck and lower back pain and told Nurse

Havins that Medicaid would not pay her for scheduled surgery with Dr. Sundaresan. Id. On

examination, Nurse Havins noted paraspinal muscle tenderness in her cervical and lumbar spine.

Id. Plaintiff had straight leg raising at 60 degrees bilaterally and intact ankle and knee jerks. Id.

Her strength was 4/5 and symmetric, and she walked with a wide base gait without assistance. Id.

Nurse Havins diagnosed Plaintiff with cervical and lumbar disc disease and added Mobic to her pain

management medication. (Tr. at 136). Nurse Havins also referred Plaintiff to the Community

Healthcare Clinic and requested a follow-up examination in two months. Id. 
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Plaintiff returned to Dr. Bartel’s clinic on February 10, 2004, and saw Nurse Havins again.

(Tr. at 134). Nurse Havins noted that Plaintiff “tried to be seen at the Community Healthcare Clinic

for her general health care needs, however, she was unable to afford the appointment.” Id.

Plaintiff’s physical examination was the same as September 12, 2003 visit, and Plaintiff reported

that the Lortab and Soma helped with her back pain. Id. Nurse Havins referred Plaintiff to the

Wichita Falls Residency Program indigent care clinic for her general health needs and requested a

follow-up visit in two months. Id. 

Nurse Havins examined Plaintiff again on May 4, 2004. (Tr. at 133). Nurse Havins noted

that Plaintiff did not follow-up on her referral to the indigent care clinic. Id. The physical

examination was the same as it was before, and Plaintiff was again referred to the indigent care

clinic. Id. Nurse Havins reiterated the importance of her following up with the indigent care clinic

to establish treatment, and Plaintiff’s daughter was present during the conversation. Id

On February 28, 2005, Dr. Bartel completed a questionnaire entitled “Medical Assessment

of Ability to Do Work-Related Activities (Physical).” (Tr. at 137-38). The questionnaire noted that

Plaintiff could occasionally and frequently lift, carry, or both 20 pounds and that she could stand or

walk 15 minutes without interruption for a total of two hours. (Tr. at 137). Plaintiff could sit

without interruption for 1-2 hours for a total of two hours. Id. Dr. Bartel also checked that Plaintiff

could “never” climb, balance, stoop, crouch, kneel, or crawl; that her abilities to reach, handle,

push/pull, and feel were affected, but her abilities to see, hear and speak were not; and that she was

restricted as to heights, moving machinery, temperature extremes. (Tr. at 138). 

3. Hearing Testimony 

A hearing was held before the ALJ on March 2, 2005. (Tr. at 185). Plaintiff appeared
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personally and was represented by an attorney. Id. A witness also testified. 

a. Plaintiff’s Testimony

Plaintiff testified that she was born on June 3, 1960, and that she was 45 years old on the date

of the hearing. (Tr. at 190). She earned her GED and attended college for one year. Id. She had

been married three times, was currently engaged and resided with her fiancé. (Tr. at 191-92).

Plaintiff testified that she was 5'6" tall and weighed 115 pounds. (Tr. at 192). She last

worked in April of 2001 as a grocery clerk but had to quit because she “just couldn’t do the work.

It hurt [her] too bad.” (Tr. 193). Plaintiff alleged she was disabled because she needed stronger

bones and had four ruptured discs. (Tr. at 194). She had an operation in 1999 to fuse her cervical

spine at C5 and C6. (Tr. at 195-96). Plaintiff testified that although the surgery was successful, she

began to have problems with her other discs. (Tr. at 196). She testified that she was scheduled to

have further surgery to fuse more vertebrae “as soon as [she] g[o]t the money for it”; she had no

income or insurance. (Tr. at 196-97). She took Lortab and Soma for her pain and experienced

occasional drowsiness from the medication; however she had not been taking them because of

financial constraints. (Tr. at 200, 210). 

Plaintiff testified that Dr. Bartel last examined her in May of 2004. (Tr. at 197). When the

ALJ asked Plaintiff about the February 28, 2005 residual functional capacity (“RFC”) assessment,

Plaintiff said that Dr. Bartel reviewed her file and completed her form but did not examine her

because she did not have the money. (Tr. at 197-98). 

The ALJ then asked Plaintiff to describe her daily activities. Plaintiff testified that she

usually got out of bed around 10 AM. (Tr. at 198). She could take care of her personal hygiene,

except that she could not wash her hair by herself. (Tr. at 199). She said that she could “do dishes
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for about two seconds” before pain radiated up her arms and into her back. Id. She prepared

breakfast for herself but did not do the laundry because her back hurt when she bent or stooped. (Tr.

at 200). She was able to do light housework. Id. Plaintiff had bad days approximately four days

out of a week and spent those days in bed. (Tr. at 201). On better days, she liked to draw and paint.

(Tr. at 203). Plaintiff did not drive because her license expired. (Tr. at 202-03). She spent most of

her time at home, never shopped, and occasionally visited her mother, who lived 45 minutes away.

(Tr. at 204). 

Under examination by her attorney, Plaintiff testified that her conditioned worsened in the

intervening months between her last examination by Dr. Bartel and the date of the RFC assessment.

(Tr. at 204-05). She also testified that she experienced migraine headaches, could use her hands for

15-20 minutes before they became numb, and frequently dropped things. (Tr. at 205-08). 

b. Witness Testimony

Mark Bull, Plaintiff’s fiance, testified that Plaintiff’s activities around the house were very

limited and that he performed most of the housework. (Tr. at 213-14). His opinion was that there

was “no way” Plaintiff could work at an eight-to-five job. (Tr. at 214). 

c. Vocational Expert’s Testimony

Clifton King, a vocational expert (“VE”) testified that Plaintiff’s past relevant work

experience included (1) manager fast food (light, SVP of 5, semi-skilled, unskilled, lower-level

skilled), and (2) cashier checker (light, SVP of 2, unskilled). (Tr. at 217). Plaintiff’s past

employment as a maid was of insufficient duration to constitute relevant past work experience. Id.

The ALJ presented a hypothetical individual with the same educational background and work

experience as Plaintiff. The hypothetical person had the following exertional limitations:
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occasionally lift or carry no more than 20 pounds; frequently lift of carry 10 pounds; stand and/or

walk six hours in a normal work day; sit for a total of six hours in a normal work day; occasionally

balance, stoop, kneel, crouch, and crawl; and mild fatigue, anxiety, and discomfort affecting her

ability to work in a competitive environment. (Tr. at 218). The VE testified that such limitations

did not preclude the hypothetical person from performing any of Plaintiff’s previous jobs. Id. 

Plaintiff’s counsel asked the VE whether the hypothetical person could perform Plaintiff’s

past jobs if she were unable to sit for more than an hour and a half during an eight-hour work day

or stand and walk for more than two hours in an eight-hour work day. Id. The VE testified that such

a person would not be able to maintain either Plaintiff’s previous employment or any other

employment. Id. 

C. ALJ’s Findings

The ALJ issued his decision denying benefits on April 7, 2005. (Tr. at 12-20). In his

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

alleged onset date of disability, October 23, 1997. (Tr. at 16; Tr. at 20, ¶1). The ALJ determined

that Plaintiff’s degenerative disc disease, cervical fusion, and headaches were severe impairments

within the meaning of 20 C.F.R. § 416.920(c), but not severe enough to meet or medically equal one

of the impairments listed in Appendix 1, Subpart B, Regulation number 4. (Tr. at 17-18; Tr. at 20,

¶¶2, 3). 

In determining Plaintiff’s RFC, the ALJ found that Plaintiff’s allegations regarding her

limitations were not supported by credible facts and findings. (Tr. at 18; Tr. at 20, ¶4). The ALJ

noted that Plaintiff’s pain was relieved by pain medication but that she was not currently taking the

pain medication due to lack of funds. (Tr. at 18-19). The ALJ also noted that Dr. Bartel last
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examined Plaintiff in May of 2004 and that Dr. Bartel’s medical assessment of Plaintiff’s RFC dated

from March of 2005. (Tr. at 19). The ALJ further noted that Plaintiff did not follow up on her

referrals to the indigent care clinic for help with her medical needs. Id. The ALJ then determined

that Plaintiff retained the RFC to perform light work activity. (Tr. at 19; Tr. at 20, ¶5). Specifically,

the ALJ found that Plaintiff could perform all postural activities occasionally and had a mild level

of anxiety, discomfort, and fatigue. Id. The ALJ concluded that Plaintiff’s medically determinable

impairments did not preclude her from returning to her past relevant work as a cafeteria manager,

cashier checker, and fast food worker. (Tr. at 19; Tr. at 20, ¶¶6, 7). As a result, the ALJ determined

that Plaintiff was not disabled within the meaning of the Social Security Act at any time through the

date of his decision. (Tr. at 19; Tr. at 20, ¶8). 

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. Greenspan v. Shalala, 38 F.3d 232, 236

(5th Cir. 1994); 42 U.S.C. § 405(g), 1383(C)(3). Substantial evidence is defined as more than a

scintilla, but 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
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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

v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).

The scope of judicial review of a decision under the supplemental security income program

is identical to that of a decision under the social security disability program. Davis v. Heckler, 759

F.2d 432, 435 (5th Cir. 1985). Moreover, the relevant law and regulations governing the

determination of disability under a claim for disability insurance benefits are identical to those

governing the determination under a claim for supplemental security income. See id. Thus, the

Court may rely on decisions in both areas without distinction in reviewing an ALJ’s decision. See

id. 

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 inquiry 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
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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 inquiry, the burden lies with the claimant to prove disability. 

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

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 there is other gainful employment available in the national economy that the claimant is

capable of performing. Greenspan, 38 F.3d at 236. 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. Issue for Review: Residual Functional Capacity

Plaintiff presents a single issue for review: “[w]hether the ALJ’s finding as to Plaintiff’s

residual functional capacity, and his resulting finding of non-disability, is supported by substantial

evidence.” (Pl. Br. at 1). Plaintiff contends that the ALJ should have (1) given controlling weight

to the medical assessment questionnaire completed by Dr. Bartel, her treating physician, and (2)
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considered Plaintiff’s inability to pay for medical treatment as an explanation for her infrequent

medical examinations. (Pl. Br. at 9-12). 

1. Treating Physician’s Opinion

The Court first considers the ALJ’s decision to accord little weight to Dr. Bartel’s February

28, 2005 medical assessment questionnaire. In the Fifth Circuit, “[a] treating physician’s opinion

on the nature and severity of a patient’s impairment will be given controlling weight if it is

‘well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with...other substantial evidence.’” Martinez v. Chater, 64 F.3d 172, 176 (5th Cir.

1995) (citing 20 C.F.R. § 404.1527(d)(2)). “Even though the opinion and diagnosis of a treating

physician should be afforded considerable weight in determining disability, ‘the ALJ has sole

responsibility for determining a claimant’s disability status.’” Martinez, 64 F.3d at 176 (quoting

Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990)). “[T]he ALJ is free to reject the opinion of

any physician when the evidence supports a contrary conclusion.” Martinez, 64 F.3d at 176 (quoting

Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987)). If good cause exists, an ALJ may give a

treating physician’s opinion little or no weight. Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000).

“Good cause may permit an ALJ to discount the weight of a treating physician relative to other

experts 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 456.

In the instant case, the ALJ discounted the weight given to Dr. Bartel’s medical assessment

questionnaire because it was based upon a review of Plaintiff’s medical files and not upon an

examination. (Tr. at 19, 197-98). Dr. Bartel’s most recent examination of Plaintiff took place more
2

Although not stated in his findings, the ALJ discerned at the administrative hearing that Dr. Bartel

prepared the questionnaire the day before the hearing and that Dr. Bartel was aware the hearing pertained to

Plaintiff’s application for SSI benefits. (Tr. at 198). In evaluating medical evidence, the ALJ has the discretion to

reject statements prepared in anticipation of litigation. Harrell v. Bowen, 862 F.2d 471, 482 (5th Cir. 1988).

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than eight months before he completed the questionnaire. Id. At the administrative hearing, the ALJ

stated that Dr. Bartel’s completion of the questionnaire without an examination was an “unusual

practice.” (Tr. at 198). He also stated that the lack of accompanying treatment notes from the

intervening eight months detracted from the weight he normally would assign to the document. Id.

These two reasons provided by the ALJ show that the medical assessment questionnaire was not

well supported by medically acceptable clinical and laboratory diagnostic techniques.2

 See SSR 96-

2p, 1996 WL 374188, *4 (S.S.A. July 2, 996). Additionally, Plaintiff does not cite, nor has the

Court found, any restrictions by Plaintiff’s treating physicians on her physical activities. (See Tr.

at 104-136). Dr. Bartel’s imposition of physical restrictions in the medical assessment questionnaire

contradicts the absence of such restrictions in the medical treatment notes. SSR 96-2p, 1996 WL

374188, at *4. To the extent that the medical assessment questionnaire contradicts other relevant

medical evidence, conflicts in the evidence are for the ALJ to resolve, not the court. Selders v.

Sullivan, 914 F.2d 614, 617 (5th Cir. 1990) (citing Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir.

1983)). 

Plaintiff contends that per Newton, the ALJ was required to perform a six-factor analysis

before deciding not to give any weight to Dr. Bartel’s opinion. (Pl. Br. at 10-11). However, the

detailed six-factor analysis established in Newton does not apply because “Newton is limited to

circumstances where the administrative law judge summarily rejects the opinions of a claimant’s

treating physician, based only on the testimony of a non-specialty medical expert who had not

examined the claimant.” Contreras v. Massanari, 2001 WL 520815, at *4 (N.D. Tex. May 14,
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2001); see also Newton, 209 F.3d at 458; Pedraza v. Barnhart, 2003 WL 22231292, at *5 (W.D.

Tex. Sept. 15, 2003). Here, the ALJ did not summarily reject Dr. Bartel’s opinion; he only rejected

the medical assessment questionnaire that was based upon a review of Plaintiff’s medical files and

her own statements and not upon an examination. In fact, the findings show that the ALJ relied

upon Dr. Bartel’s treatment records to assess the severity of Plaintiff’s alleged impairments as well

as her RFC. (See Tr. at 17-19). 

Plaintiff also contends that the ALJ’s proffered explanation for why he discounted the weight

of the medical assessment questionnaire was “woefully inadequate.” (Pl. Br. at 11-12) (citing SSR

96-8p and Southard v. Barnhart, 72 Fed. Appx. 781, 784-85 (10th Cir. 2003) (finding that the ALJ

ignored letters from the treating physician and did not perform the required analysis outlined in 20

C.F.R. § 404.1527(d)). However, SSR 96-8p does not apply because, as explained previously, the

medical assessment questionnaire is neither well-supported by medically acceptable clinical and

laboratory diagnostic techniques nor is it consistent with Dr. Bartel’s treatment notes. See SSR 96-

8p, 1996 WL 374184, *7 (S.S.A. July 2, 1996). For this same reason, and because the transcript

testimony showed that the ALJ did not ignore the medical assessment questionnaire, Southard is

inapposite. See Southard, 72 Fed. Appx. at 785. 

For the foregoing reasons, the Court finds that the ALJ had good cause not to give

controlling weight to Dr. Bartel’s medical assessment questionnaire when he determined Plaintiff’s

RFC. Newton, 209 F.3d at 456; Martinez, 64 F.3d at 176. 

2. Inability to Pay

As part of her argument that the ALJ’s RFC finding is unsupported by substantial evidence,

Plaintiff contends that the ALJ improperly considered Plaintiff’s failure to seek treatment as an
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indication of non-disability. (Pl. Br. at 12-13). Specifically, Plaintiff asserts that it was improper

for the ALJ to reject her testimony that she was unable to afford treatment as an explanation for why

she did not have more frequent medical examinations. (Pl. Br. at 12-13; Tr. at 19). In support of

this assertion, Plaintiff cites to SSR 96-7p, which states, in relevant part, that the ALJ “must not

draw any inferences about an individual’s symptoms and their functional effects from a failure to

seek or pursue regular medical treatment without first considering any explanations that the

individual may provide...For example...The individual may be unable to afford treatment and may

not have access to free or low-cost medical services.” SSR 96-7p, 1996 WL 374186, *7-8 (S.S.A.

July 2, 2006). If a “claimant cannot afford prescribed treatment or medicine, and can find no way

to obtain it, ‘the condition that is disabling in fact continues to be disabling in law.’” Lovelace, 813

F.2d at 59 (5th Cir. 1987) (citing Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986)). 

In the instant case, Nurse Havins referred Plaintiff to two different free or low-cost medical

care facilities in the Wichita Falls area. (Tr. at 133, 134, 136). When Plaintiff reported that she was

unable to afford the appointment at the first referral, the Community Healthcare Clinic, Nurse

Havins referred Plaintiff to the indigent care clinic at the Wichita Falls Residency Program. (Tr. at

134). Plaintiff did not follow-up on this second referral despite Nurse Havins’ reiteration on May

4, 2004, of the importance of doing so. (Tr. at 133). In the documents submitted to the ALJ and in

her hearing testimony, Plaintiff provided no explanation for why she did not seek treatment for her

alleged impairments from free or low-cost alternatives. Thus, the requirement that the ALJ consider

Plaintiff’s inability to pay for medical treatment does not apply because Plaintiff has not shown that
3

Plaintiff cites to Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 547 (3d Cir. 2003), for the proposition that

Plaintiff’s explanation that she could not afford medical care deprives the ALJ of substantial evidence for his RFC

finding. (Pl. Br. at 13). Newell is inapposite because Plaintiff has not shown that she did not exhaust free or lowcost alternatives. Additionally, the Court notes that Newell relates to a Step 2 finding of a severe impairment, not a

Step 4 finding of ability to perform past relevant work as is the situation in the instant case. Newell, 347 F.3d at 547.

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she did not have access to free or low-cost medical services.3

 See SSR 96-7p, 1996 WL 374186, at

*8; see Lovelace, 813 F.2d at 59. The ALJ therefore properly considered Plaintiff’s failure to seek

treatment as an indication of non-disability when he assessed her RFC. 

3. Substantial Evidence

Having found that the ALJ had good cause to reject Dr. Bartel’s medical assessment

questionnaire and that Plaintiff’s inability to pay for medical treatment was not a valid explanation

for her failure to seek more frequent medical examinations, the Court now considers whether

substantial evidence supports the ALJ’s determination of Plaintiff’s RFC. When assessing a

claimant’s physical abilities, the ALJ first assesses the nature and extent of the physical limitations

and then determines the RFC. 20 C.F.R. § 404.1545(b). “Ordinarily, 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. A ‘regular and continuing basis’ means 8 hours a day, for 5 days a

week, or an equivalent work schedule.” SSR 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996).

“The RFC assessment considers only functional limitations and restrictions that result from an

individual’s medically determinable impairment or combination of impairments, including the

impact of any related symptoms.” Id. “RFC is the individual’s maximum remaining ability to do

sustained work activities in an ordinary work setting.” Id. at *2 (emphasis in the original). The RFC

is a combined “medical assessment of an applicant’s impairments with descriptions by physicians,

the applicant, or others of any limitations on the applicant’s ability to work.” Hollis v. Bowen, 837
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F.2d 1378, 1386-87 (5th Cir. 1988).

In the instant case, Plaintiff’s treating physicians diagnosed her with cervical and lumbar disc

disease. (Tr. at 104). On May 4, 2004, the date of her last examination before her March 2, 2005

administrative hearing, Plaintiff had muscle tenderness in her cervical spine and a decreased motion.

(Tr. at 133). However, her arm strength was 4/5 on the left and 4+/5 on the right, she was not in

acute distress, and she ambulated without assistance. Id. The May 4, 2004 physical assessment was

similar to Plaintiff’s previous examinations. (See e.g., Tr. at 104-05, 134-36). Although there is no

question that Plaintiff suffered from some impairment, Plaintiff has not shown how these limitations

prevented her from performing her past relevant work. Hames v. Heckler, 707 F.2d 162, 165 (5th

Cir. 1983) (noting that the mere presence of some impairment is not disabling per se). Plaintiff also

reported that her pain symptoms were controlled with medication. (Tr. at 104, 134). A medical

impairment that can reasonably be controlled by medication, surgery, or treatment is not disabling.

Lovelace, 813 F.2d at 59. Although Plaintiff indicated that she was not always able to afford her

medication, Plaintiff has not shown that she exhausted free or low-cost medical care alternatives.

(See Part II.B.2, supra). Additionally, during the administrative hearing, the ALJ questioned

Plaintiff about her daily activities. Leggett, 67 F.3d at 565, n. 12 (daily activities are appropriately

considered in evaluating a claimant’s disability status). Plaintiff reported that she takes care of her

personal hygiene and is able to do light housework. (Tr. at 199-200). She also takes occasional trips

to visit her mother, who lives 45 minutes away. (Tr. at 204). Based on this testimony regarding

Plaintiff’s daily activities, the ALJ found that “[t]here is no indication that her daily activities were

curtailed to an extent that would suggest an inability to engage in all work activity.” (Tr. at 18). 

Based on a review of the administrative record, the Court finds that substantial evidence
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supports the ALJ’s finding that Plaintiff retained the RFC to perform light work activity. Leggett,

67 F.3d at 564. Accordingly, Plaintiff has not met her burden to show that she was incapable of

performing her past relevant work, and thus disabled within the meaning of the Social Security Act,

at any time through the date of the ALJ’s decision. Id. 

III. CONCLUSION

For the foregoing reasons, the final decision of the Commissioner is AFFIRMED.

SO ORDERED, on this 30th day of October, 2007.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE