Sanders v. Apfel ( 1998 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-60323
(Summary Calendar)
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BELINDA SANDERS,
Plaintiff - Appellant,
versus
KENNETH S APFEL,
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
For the Southern District of Mississippi
(4:96-CV-34-LS)
January 8, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Belinda Sanders appeals from the district court’s judgment
affirming the denial of her application for disability insurance
benefits. She argues that: (1) since she could not afford
evaluation and treatment, the Commissioner’s finding that she was
not disabled violates the rule in Lovelace v. Bowen, 813 F.2d 55,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
59 (5th Cir. 1987) (holding that Commissioner cannot “ignore[]
economic reality” when claimant is unable to afford treatment); (2)
the Administrative Law Judge ignored the testimony of the
vocational expert; (3) the correct legal standards were not used;
and (4) substantial evidence does not support the Commissioner’s
decision that she was not disabled.
In Lovelace, we held that if “the claimant cannot afford the
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.’” Id. at 59 (quoting Taylor v. Bowen, 782 F.2d 1294, 1298
(5th Cir. 1986)); see also Dover v. Bowen, 784 F.2d 335, 337 (8th
Cir. 1986) (holding that ALJ “must consider a claimant’s allegation
that he has not sought medical treatment or used medications
because of a lack of finances”). In the case at hand, although
Sanders’ presented unrefuted testimony that she was unable to
afford additional doctor visits, the magistrate judge used Sanders’
failure to seek additional treatment as evidence that she was not
disabled. The magistrate’s failure to consider the claimant’s
poverty violated the principle we set out in Lovelace. See
Lovelace, 813 F.2d at 59; Dover, 784 F.2d at 337.
Sanders’ inability to “afford the prescribed treatment”))here,
a referral to an orthopedic surgeon and follow-up doctor
visits))should not be used to show she is not disabled. See
Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986) (“[I]t is
as erroneous to consider the claimant’s failure to seek treatment
as a factor in the determination that her impairment is not severe
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as it would be to reach the ultimate conclusion that the claimant
is not disabled because she failed to follow prescribed treatment
when that failure is justified by lack of funds.”).
Notwithstanding this error, the ALJ’s credibility determination and
the evidence from Sanders’ other doctor visits substantiates the
the ALJ’s decision. We have reviewed the record and find that the
Commissioner’s determination, as rendered by the ALJ, is supported
by substantial evidence. See Leggett v. Chater, 67 F.3d 558, 564
(5th Cir. 1995). Accordingly, the judgment is AFFIRMED.
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