Austin v. Apfel ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30087
Summary Calendar
LARRY AUSTIN,
Plaintiff-Appellant,
versus
KENNETH S. APFEL, Commissioner
of Social Security,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 98-CV-160
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December 23, 1999
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Larry Austin appeals the district court’s dismissal of his
complaint challenging the Social Security Commissioner’s denial
of Title XVI Supplemental Security Income benefits. Austin
argues that (1) the ALJ’s decision was not supported by
substantial evidence, (2) the ALJ failed to credit Austin’s
subjective complaints of pain, and (3) the supplemental evidence
submitted after his hearing compelled a finding of disability.
We find, for substantially the same reasons adopted by the
district court, that the ALJ’s findings were supported by
*
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that this opinion should not be published and is not precedent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.
No. 99-30087
-2-
substantial evidence of record. See Austin v. Apfel, 98-CV-160
(W.D. LA. Dec. 23, 1998).
The ALJ did not err in failing to credit Austin’s subjective
complaints of pain as those complaints were contradicted by
medical reports and by Austin’s decision to forego pain
medications, corrective surgery, and ongoing treatment. Griego
v. Sullivan, 940 F.2d 942, 945 (5th Cir. 1991). Austin’s
conclusional allegations that his decision to forego treatment
was the result of his financial inability to pay are contradicted
by the fact that he underwent treatment for other medical
problems during the same time period and by the fact that he
later underwent corrective surgery for the condition of which he
complained without explaining what change in his financial
condition or benefit status made such surgery possible. See
Lovelace v. Bowen, 813 F.2d 55 (5th Cir. 1987); S.S.R. 82-59.
The Appeals Council did not err in failing to grant review
based upon post-hearing evidence submitted by Austin; the Appeals
Council adequately explained why the evidence did not change the
ALJ’s decision. See Epps v. Harris, 624 F.2d 1267, 1273 (5th
Cir. 1980)(error to adopt ALJ’s decision without addressing
post-hearing evidence).
AFFIRMED.