The regulations provide that, to obtain Social Security disability benefits, a claimant must follow prescribed treatment if the treatment would restore the claimant’s ability to work. Although the regulations do not list “inability to pay” as a justifiable excuse for failing to follow prescribed treatment, applicable rulings and disability law case precedents establish that the inability to pay is a valid excuse. The court decisions, however, are varied regarding the level of effort a claimant must exert in attempting to obtain such treatment.
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Regulations
20 C.F.R. §§ 404.1530, 416.930
These regulations provide that, to obtain disability benefits, a claimant must follow treatment prescribed by his or her physician if the treatment would restore the claimant’s ability to work. If the claimant does not follow prescribed treatment without a good reason, the claimant will not be found disabled, or if already receiving benefits, the claimant will no longer be entitled to receive benefits. The SSA will consider a claimant’s physical, mental, educational, and linguistic limitations (including any lack of facility with the English language) when determining if the claimant has an acceptable reason for failing to follow prescribed treatment. The regulations do not list financial inability to pay for treatment as an acceptable excuse for failing to follow prescribed treatment.
Rulings
Social Security Ruling 82-59
SSR 82-59 provides that an individual’s failure to follow prescribed treatment will be generally accepted as “justifiable” and would not preclude a finding of “disability” if the individual is unable to afford prescribed treatment which he or she is willing to accept, but for which free or subsidized community resources are not reasonably available in the local community. Before determining that a claimant does not have a good reason for failing to follow prescribed treatment which could be expected to restore the ability to engage in gainful activity, the claimant must be informed of this fact and of its effect on his or her eligibility for benefits. The claimant must also be afforded an opportunity to undergo the prescribed treatment or to show justifiable cause for failing to do so.
Social Security Ruling 96-7p
Social Security Ruling 96-7p provides that the adjudicator must not draw any inferences about a claimant’s symptoms and his functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the claimant may provide, or other information in the record, that may explain the infrequent or irregular medical visits or failure to seek medical treatment. The adjudicator may need to re-contact the claimant or question the claimant at the hearing in order to determine whether there are good reasons the claimant does not seek medical treatment or does not pursue treatment in a consistent manner. The Ruling further provides that the explanations offered may provide insight into the claimant’s credibility and then lists various factors that may provide an explanation for the limited treatment. This list includes the need to consider the fact that the claimant “may be unable to afford treatment and may not have access to free or low-cost medical services.”
Acquiescence Ruling 97-2(9)
In response to Gamble, decided by the Ninth Circuit (discussed below), the SSA stated that a claimant whose lower extremity is amputated at or above the tarsal region and is unable to use any prosthesis that is reasonably available to him will be considered to have satisfied the requirements of Listing 1.10C, 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 1.10C. When determining the reasonable availability of a prosthetic device, the SSA stated that adjudicators must consider evidence of the inability to afford the cost of the prosthesis. Adjudicators must evaluate all such evidence and consider the claimant’s economic circumstances in determining whether the claimant can afford the prosthesis. The Ruling applies only where the claimant resides in Alaska, Arizona, California, Guam, Hawaii (including American Samoa),Idaho, Montana, Nevada, Northern Mariana Islands, Oregon or Washington at the time of the determination or decision at any administrative level, i.e., initial, reconsideration, ALJ hearing or Appeals Council.
Case Law
First Circuit
While “poverty excuses noncompliance” with prescribed treatment, the court held that the record contained evidence that prescribed treatment may have been available to the claimant at little or no cost. Zeitz v. Secretary of Health and Human Servs., 726 F. Supp. 343, 350 n.3 (D. Mass. 1989).
Second Circuit
In Shaw v. Apfel, 221 F.3d 126 (2d Cir. 2000), the district court rejected the treating physician’s opinion of disability, in part because of the fact that the claimant did not receive medical treatment for a period of three years, which undermined the claimant’s contention of disability. Id. at 133. The Second Circuit found this logic “troubling,” stating that this “time lapse” did not negate the “compelling evidence” that the claimant was completely disabled. Id.The court noted that prior to the lapse in treatment, the claimant was treated on multiple occasions, but his condition did not improve. Thus:
it was not unreasonable for him to discontinue those treatments, particularly in light of his testimony that he could not afford further medical care . . . It would fly in the face of the plain purposes of the Social Security Act to deny claimant benefits because he is too poor to obtain additional treatment that had proved unhelpful . . .
Just because plaintiff’s disability went untreated does not mean he was not disabled. The fact that his condition did not improve, and that there was no suitable treatment other than physical therapy, bolsters the argument that plaintiff’s impairments were permanent and that he was unlikely to recover from them.
Id.,citing Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995); Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984).
Third Circuit
In Newell v. Commissioner, 347 F.3d 541 (3d Cir. 2003), the ALJ denied a widow’s disability benefits claim based on a finding that prior to August 31, 1997 (which was seven years after her husband’s death), she did not have a severe impairment meeting the durational requirement as the record lacked evidence of treatment for liver disease, diabetes, or neuropathy prior to that date. Id.at 547. The Third Circuit noted that SSR 96-7p provides that:
[T]he adjudicator 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, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment.
Id. The court found that the claimant’s explanation for her failure to seek treatment prior to August 31, 1997, was adequate and supported her claim that she could not afford treatment until her father gave her money in June 1998. Accordingly, the court disagreed with the ALJ’s statement that “‘[i]t is reasonable to assume that if [Newell] was experiencing the degree of pain and functional limitation which she has alleged that she would have sought medical treatment.’” Id.
In Bennett, the court agreed that the ALJ’s finding that the claimant’s depression, alcohol abuse, and personality disorder were not severe was marred by legal error and otherwise unsupported by substantial evidence. Bennett v. Barnhart, 264 F. Supp.2d 238, 256 (W.D. Pa. 2003). In discounting the claimant’s mental impairments, the ALJ relied in part on the fact that, when hospitalized and/or under treatment for his depression, the claimant’s GAF was generally between 55 and 60 and that his depression appeared to be well controlled by medication and infrequent therapy. Id.at 255. The court commented:
While these observations may be generally accurate, a claimant’s ability to function within a structured hospital or treatment setting is not necessarily indicative of his ability to carry out basic work activities in a job setting on a regular and continuing basis.
Id.
Fourth Circuit
In 1994, the Fourth Circuit held that, while a claimant’s failure to obtain medical treatment due to the lack of financial resources did not justify an inference that her condition was not as serious as alleged, inconsistencies between the severity of her condition and related treatment were probative of the claimant’s credibility. Mickles v. Shalala, 29 F.3d 918, 930 (4th Cir. 1994).
The Fourth Circuit held that due to the Appeals Council’s improper reliance on the claimant’s failure to seek treatment, the Appeals Council’s decision that the claimant’s complaints of severe disabling pain were not credible did not withstand substantial evidence review. Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986).
The Fourth Circuit held that the case should be remanded with instructions that the claimant be given the opportunity to show good cause for his failure to obtain treatment due to his lack of financial resources. Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984).
Although the ALJ’s opinion apparently placed considerable weight on the fact that a medical provider had recommended therapy, and that the claimant allegedly failed to obtain or do any therapy, there was no information in the record that indicated what this therapy should comprise, what its anticipated outcome is, other than improved range of motion to an unspecified degree, or most importantly, how it might affect the claimant’s functional abilities. Fleming v. Barnhart, 284 F. Supp.2d 256, 274 (D. Md. 2003). Therefore, particularly under the heightened standard applicable to this case, the ALJ should have developed the record by re-contacting the provider to determine what the recommended therapy comprised and what outcome might be anticipated. Id.
Where the claimant claimed that he was financially unable to afford blood monitoring strips, which would cost approximately $84.00 per month, the court cited SSR 82-59 for the proposition that noncompliance may be justified if the claimant “is unable to afford prescribed treatment which he or she is willing to accept, but for which free community resources are unavailable.” Nunley v. Barnhart, 296 F. Supp.2d 702 n.3 (W.D. Va. 2003).
The court found that without affording the claimant the opportunity to document her financial condition, the ALJ erred in finding that the claimant’s testimony was totally discredited by her failure to seek medical treatment. Futrell v. Shalala, 852 F. Supp. 437, 441 (E.D.N.C. 1994).
Fifth Circuit
The court rejected the claimant’s argument that the ALJ was precluded from relying upon the lack of treatment as an indication of nondisability. Villa v. Sullivan, 895 F.2d 1019, 1024 (5thCir. 1990). The court found that the “failure to follow prescribed treatment” cases were not controlling because there was no record evidence, besides the claimant’s testimony, that he would be disabled with or without regular medical treatment.Id.at 1024.
If a claimant cannot afford prescribed treatment or medicine, and can find no way to obtain it, the condition that was “disabling in fact continues to be disabling in law.” Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987).
The Fifth Circuit concluded that because the claimant was “unable sooner to obtain remedial treatment” due to financial causes, the claimant’s foot condition was an impairment that in fact caused his disability to last more than 12 months. Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986).
Sixth Circuit
The Commissioner must first determine whether the claimant’s conditions are disabling in the absence of treatment. McKnight v. Sullivan, 927 F.2d 241, 242 (6th Cir. 1990). If so, then the Commissioner must determine if there is an available affordable treatment that would prevent the disability from being a severe impairment under the statute and regulations. Id.
Seventh Circuit
In Brennan-Kenyon, the ALJ had found that the claimant was not credible because she did not receive medical treatment and was not taking medication for her impairments between 1996 and 1999. Brennan-Kenyon v. Barnhart, 252 F. Supp.2d 681, 696 (N.D. Ill. 2003). The ALJ also discredited the claimant because she claimed “incapacitating orthopedic pain” yet “she seeks no relief from it in analgesic medication.” Id. at 696-97. The court noted that SSR 96-7p provides, in pertinent part, that:
the adjudicator 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, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment. The adjudicator may need to re-contact the individual or question the individual at the administrative hearing in order to determine whether there are good reasons the individual does not seek medical treatment or does not pursue treatment in a consistent manner. The explanations provided by the individual may provide insight into the individual’s credibility.
Moreover, SSR 96-7p sets forth examples for why a claimant may chose not to seek medical treatment; such as, ‘the individual’s daily activities may be structured so as to minimize symptoms to a tolerable level or eliminate them entirely, avoiding physical or mental stressors that would exacerbate the symptoms . . . [or that] the individual may be unable to afford treatment and may not have access to free or low-cost medical services.’
Id. at 697. The court found that the ALJ failed to question the claimant at the hearing or at a later time regarding the fact that she had not sought medical treatment on a regular basis for her impairments. Further, the claimant testified that she had a very high health insurance deductible of $5,000 which may have precluded her from seeking regular medical treatment. Accordingly, the court held that as there was insufficient evidence in the record regarding the claimant’s reason(s) for not seeking medical treatment (other than the fact that the very high health insurance deductible), “the ALJ should have sought out additional information and developed the record in this area in order to properly assess Plaintiff’s credibility.” Id.
In Windus v. Barnhart, 345 F. Supp.2d 928 (E.D. Wis. 2004), the court held that the ALJ’s credibility determination could not stand, in part, because the ALJ failed to account for the fact that the claimant was to begin interferon treatment, but her insurance would not cover the expense. Id. at 949, citing SSR 96-7p (stating that the “adjudicator 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, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment”).
In Brown v. Barnhart, 298 F. Supp.2d 773 (E.D. Wis. 2004), one reason cited by the ALJ for rejecting the claimant’s testimony was that the claimant had “not received recent treatment for carpal tunnel syndrome, calling into question the extent this condition troubles the claimant.” Id.at 797-98. While it was reasonable for the ALJ to consider conservative treatment in assessing the severity of this condition, the observation lended little or nothing to the ALJ’s ultimate conclusion that the claimant’s complaints were not credible. Id. at 797. The ALJ failed to mention the claimant’s testimony about her pain in her neck, back and head, as well as her hands and failed to cite any medical evidence concerning what sort of treatment the claimant should have been pursuing. Finally, the ALJ failed to consider any reasons for the claimant’s lack of treatment. Id.
An Indiana district court found that “the ALJ did not err by citing [the claimant’s] lack of treatment as undermining her claim that her impairment is automatically disabling under Listing 3.07,” noting that the listing specifically requires intervention by health care providers. Caviness v. Apfel, 4 F. Supp.2d 813, 819 (S.D. Ind.1998). In Caviness, the court stated that it knew of no other cases that held that the ALJ could not consider lack of treatment for any reason at step three when the relevant listing precisely requires medical intervention. Id. However, the court noted that the ALJ relied heavily on the claimant’s failure to seek “regular, direct, in-person care by a physician” in finding that her subjective complaints were not credible. Id. at 821. However, “many courts, including the Seventh Circuit, have questioned the relevance of a claimant’s failure to seek medical treatment, especially when he or she is unable to afford it.” At the hearing, the claimant testified extensively concerning her financial situation, but the ALJ did not even mention her financial situation, much less its effect on her ability to pursue regular medical treatment. Id.
In Wiggins v. Apfel, 29 F. Supp.2d 486, 494 (N.D. Ill. 1998), the court acknowledged that poverty excuses a claimant’s failure to correct a treatable impairment. Id.494. However, it held that the claimant failed to meet his burden of proof that his poverty was so severe as to preclude obtaining a “simple” pair of eyeglasses, or that his visual impairment was such that the cost of correcting it would be prohibitive. Id., citing DeFrancesco v. Bowen, 867 F.2d 1040, 1044 (7th Cir. 1989); Dawkins v. Bowen, 848 F.2d 1211, 1213-14 (11th Cir. 1988).
Eighth Circuit
The Eighth Circuit held that the claimant’s inability to afford medication or the TENS unit could not be used as a basis for denying benefits. Tang v. Apfel, 205 F.3d 1084, 1086 (8th Cir. 2000), citingRicketts v. Secretary of Health & Human Servs., 902 F.2d 661, 663-64 (8th Cir. 1990).
In view of the claimant’s limited financial resources, the Eighth Circuit held that the claimant’s failure to take prescription pain medication was not inconsistent with his subjective complaints. Ricketts v. Secretary of Health and Human Servs., 902 F.2d 661, 663 (8th Cir. 1990).
The Eighth Circuit rejected the claimant’s argument that he failed to follow prescribed treatment due to his lack of financial resources based on the lack of factual evidence in the record supporting his allegation. Johnson v. Bowen, 866 F.2d 274, 275 (8th Cir. 1989).
Although it is permissible in assessing the severity of pain for an ALJ to consider a claimant’s medical treatment and medications, the ALJ must consider a claimant’s allegation that he has not sought medical treatment or used medications because of a lack of finances. Dover v. Bowen, 784 F.2d 335, 337 (8th Cir. 1986).
The Eighth Circuit held that a lack of sufficient financial resources to follow prescribed treatment to remedy a disabling impairment may be an independent basis for finding justifiable cause for noncompliance. Tome v. Schweiker, 724 F.2d 711, 714 (8th Cir. 1984).
In Osborne, the claimant argued that the ALJ erred in relying on the failure to seek mental health treatment as a basis for concluding that she was not depressed. Osborne v. Barnhart, 316 F.3d 809, 812 (8th Cir. 2003) The court noted that although the claimant’s mother cited “lack of insurance” as a reason for not pursuing mental health treatment for her daughter, there was no evidence that either the claimant or her mother attempted to obtain treatment, and were denied such treatment because of insufficient funds or insurance. Id.
The Eighth Circuit affirmed the ALJ’s credibility finding in which the ALJ discredited the claimant, in part, based on his admission that he had not taken prescription pain medication for years. Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999). While the claimant asserted that could not afford such medication, “there is no evidence to suggest that he sought any treatment offered to indigents or chose to forgo smoking three packs of cigarettes a day to help finance pain medication.” Id.
The Eighth Circuit rejected a claimant’s argument that her financial hardship justified her failure not to pursue additional treatment. Murphy v. Sullivan, 953 F.2d 383, 386-87 (8thCir. 1992). According to the court, if the claimant was unable to follow a prescribed regimen of medication and therapy to combat her disabilities because of financial hardship, that hardship may be taken into consideration when determining whether to award benefits. Id., citing Tome v. Schweiker, 724 F.2d 711, 714 (8th Cir. 1984). While these hardships can be considered in determining whether to award a claimant benefits, however, the fact that a claimant is under financial strain is not determinative. Id., citing Benskin v. Bowen, 830 F.2d 878, 884 (8th Cir. 1987). In the present case, the ALJ’s determination that the claimant’s financial difficulties were not severe was supported by the evidence, including her inability to qualify for a Medicaid card, the lack of evidence that the claimant sought to obtain any low-cost medical treatment from her doctor or from clinics and hospitals, and the lack of evidence that the claimant was denied medical care because of her financial condition. Id.
Due to the claimant’s failure to seek less expensive or readily available professional relief for her pain, the court concluded that the Commissioner could properly consider her failure to seek such relief as inconsistent with her account of its severity. Benskin v. Bowen, 830 F.2d 878, 884 (8th Cir. 1987).
Since the claimant was not disabled even without medication, the court found that there was no need to determine whether her financial situation provided a sufficient rationale for her failure to follow her prescribed treatment. Brown v. Heckler, 767 F.2d 451, 453 (8th Cir. 1985).
In Hutsell v. Sullivan, 892 F.2d 747 (8th Cir. 1989), the Eighth Circuit noted that the “lack of means to pay for medical services does not ipso facto preclude the Secretary from considering the failure to seek medical attention in credibility determinations.” Id. at 750 n. 2 See also Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992) (rejecting claim of financial hardship where there was no evidence that claimant attempted to obtain low cost medical treatment or that claimant had been denied care because of her poverty).
In remanding a case, a Missouri district court noted that the ALJ’s credibility analysis contained obvious flaws. Miller v. Barnhart, 265 F. Supp.2d 1087, 1097 (W.D. Mo. 2003). For example, in finding that the claimant’s lack of medical records from 2001 to 2002 showed that he was not disabled, the ALJ ignored the claimant’s testimony that he lost his insurance in January 2001 and was unable to afford medical bills. The ALJ also ignored the fact that when the claimant’s mother paid for him to see a doctor in 2002, the doctor found that the claimant’s condition had not improved since he last obtained medical treatment in late 2000. The ALJ also found that as the claimant was not taking prescription medications, he was precluded from being found. Id.
In Sailors v. Barnhart, 292 F. Supp.2d 1190 (D. Neb. 2003), the court held that the evidence as a whole (both medical and otherwise) supported the ALJ’s adverse credibility assessment which was based, in part, on the claimant’s failure to seek Interferon treatment claiming lack of funds, while the clamant was able to afford to drink alcohol. Id. at 1197. The court rejected the claimant’s argument that the cost of that medication far exceeded the cost of alcohol and he would not have been able to afford the treatment even if he quit drinking. Id. The court stated that the ALJ’s point was not that alcohol and Interferon cost the same, but rather was that the claimant was at least partly disingenuous when he solely attributed his inability to afford treatment to the cost of this medication. Id. The court noted that the record was replete with evidence that the claimant was helped by a friend with the cost of his medications and various health care professionals provided him with drug samples and medical treatment without regard to his finances. Id. at 1197-98.
In Norman v. Apfel, 48 F. Supp.2d 905 (W.D. Mo. 1999), the court rejected the claimant’s argument that the ALJ should have considered her financial constraints when he evaluated her failure to seek treatment for her mental disorder and for her smoking habit. Id. at 909. The court relied on Eighth Circuit case law that specifically holds that the claimant’s lack of financial resources does not excuse her failure to seek medical treatment absent evidence that she sought low or no-cost treatment or that any provider denied her treatment because of her financial situation. Id., citing Clark v. Shalala, 28 F.3d 828, 831 n. 4 (8th Cir. 1994); Johnson v. Bowen, 866 F.2d 274, 275 (8th Cir. 1989); Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992).
A Missouridistrict court noted that the ALJ properly considered the fact that the claimant did not take regular prescription pain medication, or over-the-counter preparations for her alleged disabling pain. Hamilton v. Barnhart, 355 F. Supp.2d 991, 1003 (E.D. Mo. 2005). While the claimant reported that she could not afford such medications because she had limited financial resources, no health insurance since being unemployed, and that pain medications do not work well, the record showed that the claimant was taking pain medication prior to, and after her surgery, to control pain and there was no indication that pain medication was ineffective at that time. “Moreover, there is no evidence in the record to suggest plaintiff attempted to obtain low-cost pain medication or assistance, or was prevented from obtaining medication or care due to a lack of insurance or finances” and the claimant was able to afford at least a pack a day tobacco habit. Id.
In Shimkus v. Apfel, 72 F. Supp.2d 1056 (S.D. Iowa 1999), the court held that the ALJ appropriately discounted a 5-pound lifting limitation attributed by a physician to the claimant’s hernia, as the claimant did not have surgery on his right hernia after he received an inheritance. Id.at 1060. The court noted that “choosing to spend one’s money in alternative ways” was not an acceptable reason for failing to follow the prescribed treatment. Even though surgery had not been expressly prescribed for his right hernia, based on the claimant’s and his wife’s hearing testimony and the fact that he had successful surgery on a left inguinal hernia in the past, the court stated it was “confident plaintiff was aware of his options.” Id.In any event, even if 20 C.F.R. § 404.1530 was inapplicable, the court added that “the fact plaintiff voluntarily chose to live with his hernia, while maintaining a relatively active lifestyle, is substantial evidence that the pain is not truly disabling.” Id.
In Craig v. Chater, 943 F. Supp. 1184 (W.D. Mo. 1996), the district court rejected the claimant’s argument that he could not afford medical treatment or medication. Id. at 1190. The court stated that financial problems are not always an excuse for failing to follow a treatment plan. Id., citing Brown v. Heckler, 767 F.2d 451, 453 n.2 (8th Cir. 1985). Since the record did not indicate that the claimant attempted to secure low-cost medical care or discussed alternative methods of payment with his physician, the court found that the claimant’s alleged financial problems were not an acceptable reason for his refusal to seek medical assistance. Id.
Ninth Circuit
In Regennitter v. Commissioner of Soc. Sec. Admin., 166 F.3d 1294 (9th Cir. 1999), the ALJ rejected the claimant’s complaints of pain, in part, because they were inconsistent with the lack of treatment he had received. Id. at 1296. However, the Ninth Circuit noted that the claimant received regular treatment until his insurance coverage ran out, and he still saw treating doctors five times and examining doctors four times in the following two years. The Ninth Circuit also held that the record corroborated the claimant’s “uncontested explanation for not seeking more treatment: he could not afford it.” Id. The court reiterated that it has “proscribed the rejection of a claimant’s complaints for lack of treatment when the record establishes that the claimant could not afford it.” Id., citing Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)
In 1995, the Ninth Circuit held that a disabled claimant cannot be denied benefits for failing to obtain medical treatment that would ameliorate his condition if he cannot afford that treatment. Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995).
An Oregon district court noted that the “Ninth Circuit proscribes the rejection of a claimant’s pain testimony for lack of treatment when the record establishes that claimant cannot afford it.” Jerry v. Commissioner of the Soc. Sec. Admin., 97 F. Supp.2d 1219, 1225 (D. Or. 2000), citing Regennitter v. Commissioner of the Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999). In Jerry, the ALJ relied, in part, on the fact that the claimant did not use any strong pain medication as a basis to find that her complaints were exaggerated and that she was not credible. Id. The court noted that the claimant testified that her pain frequently ranked an 8 or 9 on a scale of 1 to 10 without pain medication, that she took coated aspirin and three Extra Strength Tylenol for pain, and attempted to explain “how lack of money limits her access to prescription medication but the ALJ cut her off.” Id.The court also noted that the fact that the claimant took “only” three Extra Strength Tylenol did not tend to show that she exaggerated her pain. The court concluded that the ALJ’s finding that the claimant did not rely on strong pain medication was not supported by substantial evidence. Id.
In Ibarra v. Commissioner of the Social Security Administration, 92 F. Supp.2d 1084 (D. Or. 2000), the ALJ noted that at the time of the hearing, the claimant was not following any medication regimen for her bi-polar condition, and further that “[a]dherence to such an appropriate medication regiment would likely substantially improve her overall functioning.” Id.at 1087. The court determined that this finding, as well as the ALJ’s ultimate finding of nondisability “rest, in significant part, on his expressed perception that her failure to follow a prescribed treatment caused her condition to be worse than it might otherwise be.” Id. The court concluded that the ALJ erred in his “apparent finding” that the claimant failed to follow a prescribed treatment. The court further determined that SSR 82-59 required remand for an immediate payment of benefits and for proper development of the issue of the claimant’s failure to follow prescribed treatment or the availability of a treatment program. Id. at 1088.
Tenth Circuit
The Tenth Circuit observed that the “lack of evidence of medical treatment does not constitute objective medical evidence of improvement,” noting that “a decrease in the medical severity of an impairment sufficient to constitute medical improvement must be substantiated by changes in signs, symptoms, or laboratory findings.” Threet v. Barnhart, 353 F.3d 1185, 1190 n.7 (10th Cir. 2003), citing Shepherd v. Apfel, 184 F.3d 1196, 1200-01 (10th Cir. 1999). In Threet, the claimant testified that all she could afford was over-the-counter Tylenol. Id.Yet, instead of acknowledging that the claimant’s “inability to pay may provide a justification for a claimant’s failure to seek treatment,” the ALJ concluded this evidence meant that the claimant’s pain was amenable to control, while the record appeared to indicate otherwise. Id.
Although the claimant was initially opposed to surgery, he subsequently became receptive, but by the time of the hearing could not afford the cost of the surgery. Teter v. Heckler, 775 F.2d 1104, 1107 (10th Cir. 1985). Thus, the Tenth Circuit held that the claimant’s failure to undergo surgery did not constitute an unjustified refusal. Id.
In Brown, the court stated that the ALJ failed to consider the evidence that the claimant had trouble affording to go to the doctor’s office.Brown v. Barnhart. 362 F. Supp.2d 1254, 1262 (D. Kan. 2005). While the inability to pay for services does not automatically weigh in favor of the claimant, it is a factor that should have been discussed by the ALJ. Id.
The fact that an individual may not seek medical treatment may be due to a lack of financial resources, and may not be an indication that the claimant’s testimony regarding the extent of his disability is not credible. Walker v. Callahan, 990 F. Supp. 1283, 1287 (D. Kan. 1997). See also Crawford v. Chater, 997 F. Supp. 1387, 1396 (D. Colo. 1998) (holding that the claimant’s failure to seek medical treatment was justifiable in that she and her husband lived on his Social Security benefits resulting in lack of finances for her to see a doctor and afford her own medications, causing her to use her husband’s medications); Eason v. Chater, 951 F. Supp. 1556, 1562 (D.N.M. 1996) (noting that if the claimant’s failure to keep an appointment with a psychiatrist was justified due to the lack of economic resources, the claimant should not be penalized).
The claimant could not be expected to seek medical attention for seizures occurring up to several times a week when he had few resources to pay for treatment and the care provided differed little from what he received at home.Gomez v. Sullivan, 761 F. Supp. 746, 753 (D. Colo. 1991).
A district court held that when the claimant’s failure to seek medical treatment can be attributed to the inability to pay for such treatment, “evidence of nontreatment is of little weight.” Hockenhull v. Bowen, 723 F. Supp. 555, 557 (D. Colo. 1989).
A Kansasdistrict court upheld that the ALJ’s credibility finding which was based, in part, on the fact that the claimant failed to seek medical treatment for long periods of time, which the court noted was “significant.” Hill v. Barnhart, 250 F. Supp.2d 1286, 1289-90 (D. Kan. 2003), citing Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988). The court noted that the fact that the claimant spent money on his cigarette habit suggests that he may have been able to afford medical care if it was necessary. Id.at 1290.
In Nichols v. Commissioner of Social Sec. Admin., 260 F. Supp.2d 1057 (D. Kan. 2003), the court held that the ALJ properly evaluated the claimant’s credibility, noting that the ALJ relied, in part, on the claimant’s treatment record. Id.at 1073. Specifically, the ALJ observed that although the claimant stated that her disability began in December 1989, she did not pursue any type of psychological treatment until October 1995 — more than six years later. While the ALJ noted that she claimed that she was unable to afford psychotherapy, “he found nothing in the record to indicate that she had pursued or applied for any type of indigent program for psychotherapy or counseling.” Id.
Eleventh Circuit
In Ellison v. Barnhart, 355 F.3d 1272 (11th Cir. 2003), the Eleventh Circuit held that the ALJ’s failure to consider the claimant’s ability to afford his seizure medication was not reversible error as the ALJ did not significantly base his decision that the claimant was not disabled on a finding of non-compliance. Id. at 1275. The court also held that the fact that the claimant had worked for several years in spite of his seizure disorder, along with the opinions of several doctors that the claimant’s seizure disorder did not prevent him from meeting the demands of unskilled work, constituted substantial evidence which supported the ALJ’s decision to discredit the opinion of an examining physician that the claimant was totally disabled. Id. at 1275-76.
The Eleventh Circuit reversed and remanded a case, in part, because the ALJ failed to consider whether the claimant’s poverty excused her noncompliance with prescribed treatment. Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988). Several Alabama courts have relied on Dawkins in reversing the Commissioner’s decision. See, Cronon v. Barnhart, 244 F. Supp. 2d 1286, 1292 n.16 (N.D. Ala. 2003) (noting that the ALJ placed heavy emphasis on the fact that the claimant did not have an MRI or additional testing performed, yet the claimant testified that she did not have funds for these expensive tests and poverty excuses noncompliance with treatment); White v. Barnhart, 336 F. Supp.2d 1183, 1186 n. 9 (N.D. Ala. 2004) (noting that the claimant’s lack of funds has prevented her from having more recent testing procedures and the same reasoning of Dawkins is applicable to the claimant’s inability to have more recent expensive testing procedures, noting that “[w]hen you cannot afford it, you cannot afford it”); Lacy v. Barnhart, 309 F. Supp.2d 1345, 1351 & 1351 n.19 (N.D. Ala. 2004) (holding that the ALJ improperly ignored a treating physician’s opinion, in part, due to the lack of recent treatment, yet the record documented that finances played a limiting role in receipt of treatment).
A Floridadistrict court held that the ALJ’s finding that the claimant’s complaints were not totally credible because she was noncompliant with medication and treatment was on “equally shaky ground.” Zeigler v. Barnhart, 310 F. Supp.2d 1221, 1225-26 (M.D. Fla. 2004). This is because one of her treating physicians agreed with discontinuation and changes in her medication. Id. at 1226. Additionally, the claimant testified that she was at times not financially able to pay for medication and treatment and “[p]overty excuses noncompliance with treatment.” Id., citing Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988).
In Burroughs, the court noted that the lack of treatment is “not surprising or indicative of an absence of significant illness in light of the consulting psychologist’s finding that plaintiff has poor insight into her mental condition,” and the fact that her “failure to obtain additional treatment could also be due to her obviously low economic status.” Burroughs v. Massanari, 156 F. Supp.2d 1350, 1364 (N.D. Ga. 2001).
D.C. Circuit
Where the claimant testified that she had not sought medical treatment due to her indigency, and there was nothing in the record to contradict her testimony, the court stated that it was impermissible for the ALJ to find that she was not disabled due to the absence of medical data. Hayes v. Bowen, 643 F. Supp. 770, 773 (D.D.C. 1986).