Waters v. Chater

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 94-20733
Summary Calendar

SANDRA G. WATERS,
Plaintiff-Appellant,

versus

SHIRLEY S. CHATER, Commissioner
of Social Security,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Texas
(CA H 93 0271)

(August 18, 1995)

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

The plaintiff appeals the judgment of the district court

upholding the final decision of the Commissioner1 denying a

period of disability, disability-insurance benefits, and

supplemental security income. On appeal, plaintiff argues that

* Local Rule 47.5 provides:
"The publication of opinions that have no precedential value and
merely decide particular cases on the basis of well-settled
principles of law imposes needless expense on the public and
burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.

1. Pursuant to P.L. No. 103-296, the Social Security
Independence and Program Improvements Act of 1994, the
Commissioner of Social Security has been substituted for the
Secretary of Health and Human Services in this action.
there was not substantial evidence to support the Commissioner's

decision, and that she was denied due process by the

administrative law judge's failure to subpoena witnesses on her

behalf. Finding no error, we affirm.

I. FACTS

Sandra G. Waters applied for a period of disability,

disability-insurance benefits, and supplemental security income.

beginning on September 20, 1989, for alleged head, neck, and back

injuries. Benefits were denied both initially and upon

reconsideration. In her request for reconsideration, Waters

mentioned, for the first time, that she suffered from depression.

Waters filed a timely request for a hearing, stating that the

doctors had not answered her questions about her "condition."

Waters indicated in the request that she was sending additional

information with the request, but the record does not reflect

anything other than the request.

The Secretary issued a notice of dismissal, stating that

Waters had raised, for the first time at the administrative law

judge (ALJ) hearing level, an issue of mental impairment. It is

unclear whether Waters appealed this notice of dismissal.

Several months later, the Secretary issued another notice,

stating that the decision that she was not disabled had again

been reviewed and that the her lack of disability had again been

confirmed. The notice also informed her of her right to appeal

the decision and request a hearing before the ALJ. Waters filed

2
another request for a hearing in which she stated that she had

medically determinable physical and mental impairments of

expected indefinite duration and that she had an inability to

engage in any substantial gainful employment. It does not appear

that the Secretary continued to contest whether Waters could

bring her issue of mental impairment.

Waters was granted a hearing, and the ALJ conducted both an

initial hearing and a supplemental hearing to consider additional

medical evidence submitted by Waters. At both hearings, Waters

appeared without counsel. After the hearings, Waters was again

denied a period of disability, disability insurance benefits, and

supplemental security income. The Appeals Council denied Waters'

request for review and affirmed the ALJ's decision as the final

decision of the Secretary.

Waters then filed a pro se, in forma pauperis complaint in

federal district court for review of the final decision of her

claims. The Secretary answered and filed a request for judgment

on the pleadings. Waters also filed a motion for summary

judgment or, in the alternative, for judgment on the pleadings.

Waters complained in her motion that the Secretary's denial

of her claim was not supported by substantial evidence and that

the only medical expert present was a psychiatrist whose opinion

was not supported by the evidence. The magistrate judge reported

that the objective medical facts did not support a substantial

portion of Waters' claims and that the ALJ's decision was

supported by substantial evidence and recommended that the

3
defendants' motion be granted and Waters' motion be denied. Over

Waters' objections, the district court adopted the magistrate

judge's report and recommendation, granted the defendants'

motion, and dismissed Waters' cause of action on the merits.

II. DISCUSSION

A.

Waters complains there is no substantial evidence to support

the Secretary's decision that she was not disabled. Waters

specifically contends that she meets the criteria for Part "B"

because the evidence, mainly in the form of testimony from her

husband, demonstrated that she had severe restrictions of her

daily activities and social functions, which, along with the

other requirements in Part "A" that she met, qualified her as

having an organic mental disorder impairment under 20 C.F.R. pt.

404, subpt. P, app. 1, § 12.02. Waters also contends that she

meets the criteria under 20 C.F.R. pt. 404, subpt. P, app. 1,

§ 1.07 for the physical condition of nerve root compression

syndrome.2 Waters argues that the combination of these mental

and physical conditions makes her disabled.

Waters' other complaints relating to whether there was

substantial evidence to support the ALJ's decision include:

2. The Court has found no regulation matching the one cited
by Waters for the alleged condition of nerve root compression
syndrome. However, 20 C.F.R. pt. 404, subpt. P, app. 1, § 11.08
(1989) describes as a neurological impairment spinal cord or
nerve root lesions, due to any cause, in combination with
disorganization of motor function. Therefore, we assume that
Waters meant to refer to this section in her argument.

4
1) the ALJ's failure to consider her husband's testimony

regarding her limited daily activities and social functions;

2) her chronic pain as disabling; and 3) the medical experts'

questionable testimony and qualifications.

This court's review is limited to determining whether the

record as a whole shows that the district court was correct in

concluding that substantial evidence supports the findings of the

Secretary and whether any errors of law were made. Fraga v.

Bowen, 810 F.2d 1296, 1302 (5th Cir. 1987). Substantial evidence

is that which is relevant and which is sufficient for a

reasonable mind to accept as adequate to support a conclusion.

It must be more than a mere scintilla, but it need not be a

preponderance. Id.3 This court may not reweigh the evidence or

try the issues de novo, as conflicts in the evidence are for the

Secretary and not for the courts to resolve. Selders v.

Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).

Waters has the burden of proving that she is disabled within

the meaning of the Social Security Act. Fraga, 810 F.2d at 1301.

The statute defines disability as the "inability to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which . . . has lasted

or can be expected to last for a continuous period of not less

3. "The elements of proof to be weighed in determining
whether substantial evidence exists include: 1) objective
medical facts; (2) diagnoses and opinions of treating and
examining physicians; (3) claimant's subjective evidence of pain;
(4) claimant's educational background, age and work history."
Owens v. Heckler, 770 F.2d 1276, 1279 (5th Cir. 1985).

5
than 12 months." 42 U.S.C. § 423(d)(1)(A). In evaluating a

claim of disability, the Secretary conducts a five-step

sequential analysis: 1) whether the claimant is presently

engaging in substantial gainful activity, 2) whether the claimant

has a severe impairment, 3) whether the impairment is listed, or

equivalent to an impairment listed, in Appendix 1 of the

Regulations, 4) whether the impairment prevents the claimant from

doing past relevant work, and 5) whether the impairment prevents

the claimant from doing any other substantial gainful activity.

20 C.F.R. §§ 404.1520, 416.920; Muse v. Sullivan, 925 F.2d 785,

789 (5th Cir. 1991).

In the first four steps, the burden is on the claimant. At

the fifth step the burden is initially on the Secretary to show

that the claimant can perform relevant work. If the Secretary

makes such a demonstration, the burden shifts to the claimant to

show that she cannot do the work suggested. Muse, 925 F.2d at

789. A finding that a claimant is disabled or not disabled at

any point generally terminates the sequential evaluation.

Crouchet v. Sullivan, 885 F.2d 202, 206 (5th Cir. 1989).

However, if the claimant is complaining of mental impairment and

the ALJ finds the impairment to be severe but does not meet or

equal the listings, the ALJ must then do a residual functional

assessment regarding the claimed mental impairment. 20 C.F.R.

§§ 404.1520a(c)(3); 416.920a(c)(3).

To meet the level of severity required for classifications

as mentally impaired from an organic mental disorder under the

6
regulations, an applicant must meet the criteria of both Parts

"A" and "B" of § 12.02. 20 C.F.R. pt. 404, subpt. P, app. 1,

§ 12.02 (1989). Part "B" determines the severity of the disorder

and states, inter alia, that the disorder must result in marked

restriction of daily activities or social functioning. Id. A

spinal cord or nerve root lesion, due to any cause, combined with

disorganization of motor functions, as described in another

section, can be a neurological physical impairment. 20 C.F.R.

pt. 404, subpt. P, app. 1, § 11.08 (1989).

The ALJ determined that Waters was not disabled at the third

step, as Waters' alleged physical and mental impairments did not

meet or equal an impairment listed in Appendix 1 of the

Regulations. However, the ALJ considered her conditions in

combination to be severe. The ALJ also determined that Waters

could not return to her past relevant work as a nurse, but that

Waters had the residual functional capacity for light work

activity, compromised only by her inability to deal with stress

situations in a work setting. The ALJ then determined that

Waters was capable of doing other substantial gainful activity.

EVIDENCE PRESENTED TO THE ALJ

On September 11, 1989, Waters was admitted to the Veterans'

Administration (VA) hospital in Houston, Texas, where she

reported that she had been in good health until May 27, 1989,

when she fell, hitting the back of her head, neck and back.

Waters reported that two weeks after the incident, she developed

muscle pain and stiffness in the neck, for which she was placed

7
on Motrin and Bactrim by the VA hospital and seen as an

outpatient. Waters reported that the night prior to her

admission to the VA hospital, she increased the dosage of her

medicine, drank a beer, and went to bed. She then reported that

she experienced a possible seizure or fainting spell. An

electroencephalogram (EEG) revealed cyclomotor variant, which

could be seen in normal people. A computed tomography (CT) scan

revealed the question of a lesion in the left temporal

subcortical area. The radiologist reviewed the CT scan but felt

that without a mass effect, the lesion was probably not an

abnormality or tumor and was probably a negative study. A CT

with contrast was recommended, but Waters left the hospital

without having the procedure performed. Waters was discontinued

off Bactrim and placed on 750 mg of Robaxin and continued on

Tylenol.

In October 1989, Waters was admitted to the VA hospital for

a myelogram because of complaints of constant cervical pain

beneath the skull radiating to both arms. The physical

examination revealed a "well-developed, well-nourished woman in

no distress." Waters' neck was supple without thyromegaly4 or

bruits5. Her cranial nerves II through XII were intact.

However, a sensory exam revealed decreased sensation to pain and

light touch in the lateral right side of the arm up to the elbow

4. Thyromegaly is the enlargement of the thyroid gland.
STEDMAN'S MEDICAL DICTIONARY 1600 (25th ed. 1990).

5. A bruit is a harsh or musical, intermittent auscultatory
sound, especially an abnormal one. Id. at 215.

8
and the lateral right leg up to the knee. Her chest x-ray and

EKG were unremarkable. A CT scan of the lumbar region was normal

except for some osteoporosis. An electromyography (EMG), which

could be performed only on the right side because Waters stopped

the test with complaints of nausea and pain, was normal. A

magnetic resonance imaging (MRI) showed a normal brain with no

sign of abnormalities in the basal ganglia where such

abnormalities had been seen on the CT. The abnormalities were

considered probable calcifications of the idiopathic6 type and

were insignificant. A lumbar and cervical myelogram showed that

there was no evidence of nerve root sleeve deformities or

extradural defects, although there was less filling in one

portion of the lumbar region on the right side. When Waters was

informed that her MRI results were normal, she stated she would

ask for a second opinion and that she did not want any

medication. Waters was discharged on no medication with a

follow-up appointment in the neurology clinic.

In December 1990, Waters underwent a psychiatric examination

performed by Dr. Mohsen Mirabi, at the request of the Texas

Rehabilitation Commission. Waters informed Dr. Mirabi that in

May 1989, she sustained a severe head injury after an altercation

with a Harris County Sheriff Deputy and thereafter developed

numbness in her upper extremities for which she had seen a

chiropractor and a neurologist. Waters also informed Dr. Mirabi

6. Idiopathic denotes a disease of unknown cause. Id. at
762.

9
that she was treated at the VA hospital where doctors discovered

a lesion at the bottom of her brain. She reported that at the

present time she was taking Tylenol, Robaxin, Indocin, Maalox,

and Elavil up to 250 mg per day. She further stated that she was

extremely distressed, upset, and frustrated as she had not been

able to work. She reported that she had gained over 40 pounds in

the past year and that this problem, in itself, appeared to be

stressful for her. Dr. Mirabi reported that Waters appeared to

have developed the signs and symptoms of depression and that she

felt very bitter towards the medical profession and the legal

system.

Dr. Mirabi also reported that Waters informed him that she

made every effort to do household chores, such as cooking,

washing, and cleaning. Waters informed Dr. Mirabi that her

social interactions were limited and that she had become

seclusive and her ability to undertake any specific tasks had

diminished. She also reported becoming hopeless and feeling

helpless. Dr. Mirabi reported that Waters was very cooperative

throughout the interview and that she was appropriately dressed

and neatly groomed. Her psychomotor activities were drastically

decreased and withdrawn. Waters' mood was anxious, depressed,

and tearful. Waters denied hallucination, and there was no

evidence of delusion. Dr. Mirabi also reported that her

orientation, sensory, memory, and ability to abstract appeared to

be intact and that there was no evidence of impaired judgment or

insight. Dr. Mirabi reported that Waters in general had become

10
extremely irritable and frustrated. After ruling out major

depressive disorder and posttrauma with depression, Dr. Mirabi

determined that Waters was suffering from an organic affective

disorder. Dr. Mirabi concluded that Waters' prognosis was fair

and that her ability to understand how to file for benefits and

to manage funds was not impaired.

In December 1990, Waters also saw Dr. Raymond Martin, a

neurologist. Waters informed Dr. Martin that the police attacked

her in her home when they were looking for her boyfriend. She

related that as a result of this attack she has experienced

chronic low back pain and intermittent paresthesia7 in her hands

and toes and had progressive difficulty emptying her bladder.

She also reported that in August 1989, she had an episode of lost

consciousness, preceded by a strange feeling. She reported that

when she awoke she felt generalized twitching, but that the

doctors at the VA hospital did not think her episode was a

seizure.

Dr. Martin found Waters' neurological exam to be essentially

normal except for a subjective stocking-and-glove sensory loss

that appeared to be more in the hands than in the feet. He also

reported that Waters had limitation of cervical motion in all

directions. Dr. Martin reported that Waters had an unusual

history and that he was not sure how the findings of his scans

related to her injury. He advised her not to drive and to avoid

7. Paresthesia is an abnormal sensation, such as burning,
pricking, tickling, or tingling. STEDMAN'S MEDICAL DICTIONARY
1140 (25th ed. 1990).

11
activities where a loss of consciousness could be a risk. An EEG

performed in February 1991 and a MRI examination of the cervical

spine performed in March 1991 were within normal limits.

In September 1991, Waters underwent a psychological

evaluation by Stephen Williams, a clinical psychologist and

neuropsychologist. Waters reported that she received a head

injury after she was tackled by a police officer during a police

call. She reported that the incident resulted in chronic pain

which prevented her from doing much lifting and that she had also

developed high eyeball fluid pressure, similar to glaucoma, for

which she was taking medication. On the Wechsler Adult

Intelligence Scale - Revised, Waters had a full-scale

intelligence quotient (IQ) of 102, which placed her in the

average range of intellectual functioning. Williams reported

that Waters' subtest scores suggested that at one time before her

accident she probably had a considerably higher IQ level, but

that the scores requiring more immediate memory skills appeared

to have been significantly disrupted due to the accident.

Williams also reported that an organic problem could have caused

the discrepancy between Waters verbal-scale score of 110 and her

performance-scale score of 95. Williams reported that Waters did

poorly on the Benton Visual Retention Test and that her

performance suggested that an organic nervous system injury was

present.

Williams reported that Waters was good humored but appeared

to be inwardly depressed about her physical and relational

12
changes due to weight gain and inactivity. Williams noted no

major depression, suicidal tendencies, severe elation, psychotic-

like preoccupations, or abnormalities of mental content. Her

memory and concentration were adequate although they lagged

behind her other mental traits. Williams considered her

intellectual ability to be above average and her judgment to be

excellent. Williams also considered her psychomotor behavior and

speech to be normal, but that her gait was a bit slow. Williams

noted that Waters was on 50 mg of Amitriptyline twice a day and

100 mg at night, Robaxin for muscle spasms, Tylenol for pain, and

Sinimet for arthritis.

Williams opined that Waters was capable of managing a

habitation, preparing meals, grooming, and dressing

appropriately. However, he also considered that because Waters

had difficulty with memory of information, lifting and turning

over people, and bending to make beds, that she would have

trouble returning to her work as a licensed vocational nurse.

Williams concluded that Waters suffered from an organic affective

disorder akin to dysthymia.8 He also concluded that Waters

appeared to have some memory problems, but that she would be able

to engage in low-stress occupations where she did not have large

amounts of physical or emotional demands.

HEARINGS BEFORE THE ALJ

8. Dysthymia is any disorder in mood. STEDMAN'S MEDICAL
DICTIONARY 480 (25th ed. 1990).

13
 At her initial hearing on February 26, 1992, Waters appeared

and waived her right to representation. Waters testified that

she was 38 years old and was working on her bachelor's degree in

nursing at the time of her injury. She stated that she could

barely lift her two-year-old granddaughter and that she could not

sit more than 15 minutes at a time without having to stand. She

testified that she was married and had three girls, but that none

of the girls were currently living with her. Waters also

testified that Dr. Martin had told her she could not drive

because of her "blank-outs," which Waters stated had something to

do with a psychomotor disturbance. The ALJ introduced vocational

expert Wayne Ray Alfred and Dr. King, an internist, both of whom

were expected to testify at the hearing.

Alfred testified that his assessment of Waters' vocational

profile was that Waters had been primarily employed in health

care services occupations and that this fact was the only thing

he could tell from the record. Alfred also testified that Waters

had not acquired any transferable skills. The ALJ asked Alfred

to assume that Waters was capable of performing light exertional

work, but that, nonexertionally, her psychiatric impairments in

the form of a depression and memory problems could lead to an

inability to deal with work stresses effectively, which would

limit her to engaging in low-stress occupations that did not have

large amounts of physical or emotional demands. The ALJ also

asked Alfred to assume that Waters would not be able effectively

to understand, remember, or carry out complex job instructions.

14
The ALJ then asked Alfred what jobs were available to a person

with these limitations.

Alfred opined that such job would be a repetitive job that

would require little or no latitude for judgment and would

involve low stress. Such jobs would be assembly-type jobs, such

as a nuts-and-bolts assembler, small-products assembler, eye-

glass assembler, eyeglass frame polisher. Alfred stated that, in

his opinion, well over 100,000 such jobs existed in the national

economy. The ALJ gave Waters the opportunity to cross-examine

Alfred as to his findings and opinions, but she declined.

Waters informed the ALJ that she had seen other doctors

including Dr. Martin, which were not reflected in the medical

records before the ALJ, and that she had submitted these

additional records to the Social Security Office. The ALJ stated

that he did not have the record, that he needed them, and stated

that he did not want to go any further until Waters had obtained

the records. The ALJ informed Waters that when he received the

records, he would convene another hearing.

On April 9, 1992, the ALJ convened a supplemental hearing

and stated that after reviewing the new evidence he deemed it

necessary to take additional evidence in the form of the

testimony of Dr. Milton Altschuler, a psychiatrist, and

vocational expert Ted Jolly, who were not present at the original

hearing. Waters appeared at the hearing and again waived her

right to representation. Waters stated that she did not have the

15
opportunity to ask the previous medical expert any questions, but

was reminded that the medical expert did not testify.

Dr. Altschuler testified that he received his medical degree

at the University of Texas Medical Branch in Galveston, Texas, in

1959, performed three years of psychiatric residency, later

became certified by the American Board of Psychiatry/Neurology,

and eventually was made a fellow of that same board. He also

stated that currently, he was a member of several national,

state, and city psychiatric associations and that he was a

clinical professor of psychiatry at Baylor College of Medicine.

He also stated that he was being paid by the Government for his

appearance and testimony in the Social Security Administration's

Disability Program, but that despite that fact, he was at the

hearing as an independent professional witness to give testimony

in the area of his expertise and not as a witness for the

Government to testify against Waters and her claim.

Altschuler testified that he had looked at all of the

records of the case and had never previously spoken to the ALJ

about the case. Altschuler testified that the records indicated

that Waters was a 39-year-old woman with a history of hitting the

floor during an altercation on May 27, 1989, who later complained

of cervical pain with radiation to both arms. Altschuler noted

that there was no evidence of a seizure disorder and that the

episode of syncope followed the taking of medication and alcohol.

Altschuler also testified that the records indicated a mild

organic affective disorder, although there was no other evidence

16
to indicate that there was an organic brain disorder. He further

testified that Waters met criteria A of 12.02, organic mental

disorder, but that she did not meet criteria B of that section.

Altschuler stated that he believed Waters had few limitations,

either physical or psychological, that would affect Waters'

ability to function in a day-to-day, 8-hour day, 40-hour-a-week

regimen. Dr. Altschuler also testified that there was no

evidence of anything more than a mild restriction of daily

activities, social functioning, and concentration. Altschuler

noted that Waters could have some sedation from the Amitriptyline

she was taking, but that such an effect was usually dependent

upon the dosage and was very idiosyncratic.

Upon cross-examination by Waters, Altschuler stated that he

had studied the medical records and noted that while the records

had noted a questionable lesion at the base of the brain, the

records also noted that the lesion was not significant.

Altschuler stated that he could not give an interpretation or an

independent evaluation of the CT scan, that it was not his

specialty, and that he could only review the medial records. He

also stated that he did not know if a physical lesion in the

brain would have any bearing on any physical or mental symptoms.

Altschuler testified that his testimony was that Waters met the

initial criteria of organic brain syndrome, dealing primarily

with a disturbance in mood and that she exhibited a relatively

chronic depressive mood. However, Altschuler also testified that

the records did not indicate any restriction of daily living, any

17
articular difficulty in maintaining social functioning, any

deficiency of concentration, persistence, or pace, and that there

was never an episode of deterioration or decompensation in a

work-like setting that was secondary to Waters' organic mood

disorder. Altschuler admitted that the records did not show an

abundant social life, but that there was no evidence of a severe

social disability. Altschuler also stated that he had taken into

consideration the fact that Waters had been chronically

depressed since November 1989.

Altschuler testified that he noticed only one episode of

syncope, and that in his opinion there was nothing from a

psychiatric perspective that would prevent Waters from returning

to the nursing profession. However, Altschuler added the caveat

that he doubted Waters could work around a lot of nursing peers

and demanding patients, such as infants, due to her mood

disorder.

Waters attempted to ask Altschuler about any tests that the

records indicated were ordered but were not performed. At this

point, the ALJ informed Waters that Altschuler was at the hearing

solely to give opinion evidence with respect to the evidence that

was in the record and not to speculate on anything that Waters'

treating physician did or did not do. Waters then testified and

complained to the ALJ that she did not believe the medical

records adequately reflected her mental and physical condition

and testified that a number of tests she requested to be done

when she was in the VA hospital were not performed.

18
 Vocational expert Jim Jolly testified that he also

participated in the Social Security Administration's Disability

Program, but that he understood that he was present to give his

independent, professional opinion and not to testify against

Waters or her claim. Before testifying to the ALJ's questions,

Jolly ascertained from Waters that she went to school to the

eleventh grade, obtained her GED, and graduated from a vo-

technical school with a nursing degree. He also determined that

Waters was licensed in Texas and had been a nurse for 14 years.

Jolly then testified that Waters had worked as a pediatrics

nurse, an emergency room nurse, and a cardiac nurse, which were

all skilled jobs. Jolly testified that Waters had transferable

skills from these jobs, such as knowledge of medical

nomenclature, clerical skills, computational skills, and an

ability to communicate with the public.

The ALJ asked Jolly to consider what jobs would be available

in significant numbers to an individual with Waters' age,

educational background, and training. The ALJ also asked Jolly

to consider that the individual had a nonexertional impairment in

the form of an organic affective syndrome that required the

person to work in as stressless an environment as possible.

Jolly testified that the stress element eliminated Waters'

previous work, but that such an individual could perform the

duties or a light sitter or companion if she could work with

people she did not have to handle. Jolly also testified that the

individual could perform the duties of mail clerk, leasing clerk,

19
light cashiering, and a variety of unskilled, light jobs, such as

customer service clerk or sales clerk. Jolly also testified that

inspection jobs and working on an assembly line would be

appropriate jobs. Jolly testified that these jobs did not

involve complex instructions and that the jobs existed in excess

of 10,000 to over 100,000 position per job in the national

economy and in excess of 1,000 to 5,000 per job in the local

economy.

Upon cross-examination, Jolly testified that Waters had

demonstrated her scholastic abilities by obtaining a nursing

degree, that she read and could spell beyond the twelfth-grade

level and computed mathematical problem at the eighth-grade level

and that these factors combined with her past work experience

demonstrated very good skills. Jolly also testified that the

jobs he mentioned were far below Waters' prior functioning level.

Jolly testified that there was no hazardous machinery in any of

these jobs and noted that none of these jobs involved driving a

vehicle, except for the leasing-clerk positions that involved

automobiles.

Upon examination by the ALJ, Waters testified that her

medication made her sleepy and that as a result she did not

follow a normal schedule, which meant going to sleep in the

mornings, being up for a few hours, and then going to sleep in

the afternoon after taking her second dose. Waters also

testified that she was supposed to take her medication every day

but that she did not do so on the day of the hearing so she could

20
be present. She also testified that her husband drove her to the

hearing.

When asked by the ALJ if she had anything else to offer,

Waters reiterated that there were omissions in her medical

records, which included things that should have been explored,

such as a hormone work-up and analysis of her pituitary gland and

optic nerve. Waters also stated that she had tried to go back to

nursing, which was the only thing for which she was trained, but

that no one would hire her. She specifically stated that if an

owner of a convenience store asked her to clerk and allowed her

to make her own schedule, she would not work as a cashier because

she would be afraid that her imperfect memory would cause her to

miscount the money. She also stated that such a job required her

to be friendly to customers and that she did not feel friendly

every day and could not put in 8 hours a day any more.

Michael Hudson, Waters' husband, testified at Waters'

request. Hudson testified that Waters did not sleep very well

and usually got up a lot during the night. He also testified

that he did most of the driving because on occasion when Waters

would drive to pick up Hudson from work she would forget where

she was going and go home. He testified that Waters became

uncomfortable sitting in the passenger seat after only a few

miles. Hudson also testified that Waters' medication

occasionally made her act like she was on "speed" and made her

forget things. He testified that they would periodically visit

his mother or a few of his friends would come to the house, but

21
that they rarely went would because Waters did not have a long

attention span, would get irritable, and that sometimes she would

get mad for no apparent reason.

FINDINGS BY ALJ

The ALJ ultimately concluded that the medical evidence

demonstrated Waters' impairments as cervical pain and organic

affective disorder, that these conditions in combination were

severe, and that the severity precluded Waters from returning to

her past relevant work. However, the ALJ also concluded that

there were other jobs existing in significant numbers in the

national economy that Waters could perform, and that therefore,

she was not disabled.

The ALJ specifically noted that the evidence demonstrated

that Waters did not meet or equal all of the requirements of

§ 12.02. The ALJ also stated that after considering Waters'

testimony, the objective clinical findings, and the testimony of

the medical expert, the ALJ determined that Waters' testimony as

to limitations was not credible and that Waters did not have any

limitations capable of producing the pain and functional

limitations of which Waters complained. The ALJ noted that

Waters was capable of performing routine household chores and

could lift her two-year-old granddaughter, which indicated an

ability to lift at least up to 20 pounds. The ALJ also noted

that Waters' pain medication of Motrin and Tylenol was consistent

with no more than a mild-to-moderate degree of pain. The ALJ

found that Waters had the exertional residual functional capacity

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for at least light work activity. The ALJ also found from the

evidence that her capacity for light work activity was

compromised only by her inability to deal with stress situations

in a work setting. The ALJ determined that Waters was not

disabled and could perform such jobs as sitter/companion, mail

clerk, ward clerk, cashier, customer service clerk, and sales

clerk.

SUBSTANTIAL EVIDENCE TO SUPPORT ALJ'S DECISION

Repeated CT scans, EEGs, and other tests demonstrated minor

problems with Waters' physical condition. Results from

neurological examinations were mainly normal. Further testing

demonstrated that the suspicious brain lesion found during

testing at the VA hospital was either non-existent or

inconsequential. A lumbar and cervical myelogram showed no

evidence of nerve root sleeve deformities or extradural defects.

Psychological testing demonstrated that an organic mental

disorder could be present, but that it did not impair Waters'

judgment, orientation, sensory functions, or her ability to

abstract. At most, Waters' memory was affected in a limited

capacity. Medical expert Altschuler did not find that Waters'

daily activities or social functions were so limited that she met

Part B of the criteria for having a severe organic mental

disorder. Altschuler stated that Waters records indicated only

one episode of syncope and that the records demonstrated few

limitations that would affect her ability to work an eight-hour

day and 40-hour week. Considering all of the above evidence, the

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ALJ's decision that Waters was not disabled was supported by

substantial evidence.

COMPLAINT THAT THE ALJ DID NOT CONSIDER HUDSON'S TESTIMONY

Waters insists that Hudson's testimony clearly demonstrated

her restricted daily activities and social functioning. As

stated earlier, Altschuler testified that the records indicated a

mild organic affective disorder, that Waters met criteria A of

12.02, organic mental disorder, but that she did not meet

criteria B of that section.

The ALJ has the sole responsibility to determine the

claimant's medical status, and, therefore, he "`is entitled to

determine the credibility of medical experts as well as lay

witnesses and to weigh their opinions and testimony

accordingly.'" Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir.

1990) (quoting Scott v. Heckler, 770 F.2d 482, 485 (5th Cir.

1985)). It is clear from the evidence presented above that the

ALJ considered Altschuler's testimony to be more credible than

that of Hudson in considering the limitations of Waters' daily

activities and social functioning. The ALJ was within its

authority to make this determination.

COMPLAINTS REGARDING THE MEDICAL EXPERTS

Waters also contends that the medical experts upon which the

ALJ relied never examined Waters. Waters also states that the

medical expert, Milton Altschuler, was not a medical doctor, was

not board certified in neurology, as represented by the ALJ, and,

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therefore, was not qualified to interpret Waters' residual

physical capacity for gainful employment.

The majority of Waters' complaints in this area are without

merit. In the first hearing, the medical expert was not used as

the ALJ stopped the hearing to allow Waters to complete the

medical records before the ALJ. Additionally, Altschuler's

testimony and professional qualifications submitted to the ALJ

demonstrated that he was a medical doctor, that his specialty was

psychiatry, and that he was board-certified in psychiatry and

neurology. Also, the ALJ specifically informed Waters that

Altschuler was at the hearing only to testify as to the evidence

in Waters' medical records and not independently to assess her

physical capabilities. The fact that Altschuler did not examine

Waters is immaterial. Consequently, Waters' complaints that she

was not examined by a testifying medical examiner and that

Altschuler lacked the necessary qualifications to assess her

residual physical capacity for gainful employment are meritless.

SUBJECTIVE COMPLAINTS OF PAIN

Waters also contends that her chronic pain is a disabling

condition and that objective medical evidence supported her

subjective complaints of pain. As stated earlier, the ALJ did

not fully credit Waters' reports of pain, noting that the Motrin

and Tylenol which Waters was taking did not signify disabling

pain.

Pain is a disabling condition under the Act only when it is

"constant, unremitting, and wholly unresponsive to therapeutic

25
treatment." Selders, 914 F.2d at 618-19 (citations and internal

quotations omitted). Subjective complaints of pain must be

corroborated by "objective medical evidence" which "demonstrate[]

the existence of a condition that could reasonably be expected to

produce the level of pain or other symptoms alleged. Anthony v.

Sullivan, 954 F.2d 289, 296 (5th Cir. 1992).

The above objective medical evidence supports the ALJ's

statement that Waters was taking Motrin and Tylenol for pain,

although the medication indicates that Waters' pain, though

possibly real, is not constant, unremitting, and unresponsive to

treatment. Additionally, no medical report indicated a finding

that Waters was in constant, unremitting pain. Therefore, the

ALJ's determination is supported by substantial evidence.

B.

Finally, Waters states that the hearing was constitutionally

deficient as an appellate process as she demanded that witnesses

be summoned on her behalf but was denied the presence of these

witnesses. When it is necessary for a full presentation of a

case, an ALJ may, either on his own initiative, or at the request

of a party, issue subpoenas for the appearance and testimony of

witnesses. 20 C.F.R. § 404.950(d)(1)(1989). Parties who wish to

subpoena witnesses must file a written request with the ALJ at

least five days before the hearing date. The written request

must give the names and addresses of the witnesses, and state the

important facts that the witnesses are expected to prove. Id. at

§ 404.950(d)(2).

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 In her request for a hearing, Waters wrote that she wanted

witnesses to be subpoenaed on her behalf, although she also

checked the box indicating that she had no additional evidence to

submit. She did not indicate who those witnesses were, where

they were located, or about what they would testify, but instead

she referred to an earlier letter she sent which allegedly

contained a list of her prospective witnesses. The letter is not

in the record.

Other than the reference to this letter, nothing in the

record or on appeal suggests that Waters complied with the

requirements of § 404.950(d)(2). The transcript of her first

hearing indicates that Waters did not mention her request to

subpoena witnesses, although she did inform the ALJ of her desire

to add additional documents to her medical evidence. At the

second hearing, Waters again did not mention her request to

subpoena witnesses when the ALJ asked her if she wanted to

present any further evidence before the hearing terminated.

Additionally, Waters has not given any indication, either in the

district court or on appeal, of the identity of the witnesses she

wanted to attend the hearing, their location, or the substance of

their expected testimony. Waters has failed to demonstrate that

she was denied due process in her hearing.

III. CONCLUSION

For the reasons discussed above, the judgment of the

district court is AFFIRMED.

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