Illiteracy and Social Security Disability

The Social Security Administration’s (SSA) Medical-Vocational Guidelines (Grids) provide that the literacy or illiteracy of certain categories of claimants can either result in a finding of “disabled” or “not disabled.” See 20 C.F.R. Pt. 404, Subpt. P, App. 2. Consequently, if a claimant appears to have trouble reading or writing in English, the Grids should be closely reviewed to determine whether the claimant’s other vocationally-relevant characteristics would direct a finding of disabled if the claimant was illiterate.

As described below, many courts have issued decisions ruling that administrative law judges improperly determined that claimants were literate and, therefore, applied the incorrect Grid Rule. [Where the claimant is both illiterate and unable to communicate in English, please see Inability to Speak English.]

Tip

Illiteracy can be established by the results of a Wide Range Achievement Test (WRAT), Wechsler Individual Achievement Test (WIAT), or the Woodcock-Johnson Psychoeducational Battery–Revised: Tests of Achievement (WJ-R ACH).

Regulations

20 C.F.R. §§ 404.1564, 416.964

20 C.F.R. §§ 404.1564(a), 416.964(a) states that past work experience and the kinds of responsibilities the claimant had when working may show intellectual abilities, although the claimant may have little formal education. The regulations also stated that formal education that was completed many years before the claimant’s impairment began, or unused skills and knowledge that were a part of a claimant’s formal education, may no longer be useful or meaningful in terms of a claimant’s ability to work. 20 C.F.R. §§ 404.1564(b), 416.964(b). The regulations define illiteracy as “the inability to read or write.” 20 C.F.R. §§ 404.1564(b)(1), 416.964(b)(1). The SSA considers someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists, even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling. Id. The regulations specifically require that SSA ask how long the claimant attended school and whether s/he is able to speak, understand, read and write in English and do at least simple calculations in arithmetic. 20 C.F.R. §§ 404.1564(b)(6), 416.964(b)(6).

20 C.F.R. Pt. 404, Subpt. P, App. 2 (Grids), § 201.00(h)

For claimants (1) who are at least 45 years of age; (2) who are restricted to sedentary work; (3) who are unskilled or have no transferable skills; (4) who have no relevant past work or who can no longer perform vocationally relevant past work; and (5) who are either illiterate or unable to communicate in the English language, a finding of disabled is warranted. On the other hand, if the claimant is under age 45, age is usually not a significant factor in limiting the individual’s ability to make a vocational adjustment, even an adjustment to unskilled sedentary work, and even where the individual is illiterate or unable to communicate in English.

20 C.F.R. Pt. 404, Subpt. P, App. 2 (Grids), § 201.00(h)(1)

While illiteracy or the inability to communicate in English may significantly limit an individual’s vocational profile, the primary work functions in the bulk of unskilled work relate to working with things (rather than with data or people), and in these work functions at the unskilled level the ability to communicate in English has the least significance. The functional capability for a full range of sedentary work represents sufficient numbers of jobs to indicate substantial vocational scope for those individuals age 18-44, even if they are illiterate or unable to communicate in English.

20 C.F.R. Pt. 404, Subpt. P, App. 2 (Grids), §§ 202.00(c) and (d)

A finding of disabled is warranted for individuals (1) who are at least closely approaching advanced age (ages 50 to 54); (2) who can no longer perform their past work; (3) who have a history of unskilled work experience, or who have only skills that are not readily transferable to a significant range of semi-skilled or skilled work that is within the individual’s functional capacity, or who have no work experience; and (4) who are illiterate or unable to communicate in English.

Rulings

Acquiescence Ruling 86-3(5) (“AR 86-3(5)”)

Issued in response to Martinez v. Heckler, 735 F.2d 795 (5th Cir. 1984), AR 86-3(5) provides that when illiteracy and the inability to communicate in English are both alleged or appear to be in question, the ALJ must make findings with respect to both issues. Where individuals ages 18 to 44 are limited to sedentary work, are unskilled or have no work history, and are found to be both illiterate and unable to communicate in English, the lowest category of the Grid regulations that might be applied, namely Grid Rule 201.23, cannot be mechanically applied. In addition, Grid Rule 202.16 cannot be mechanically applied to individuals who are both illiterate and unable to communicate in English.

This ruling applies only to cases in which the individual resides in Texas,Mississippi or Louisiana at the time of the determination or decision at any level of administrative review, i.e., initial, reconsideration, ALJ hearing or Appeals Council review.

Resources

HALLEX I-5-3-12, Evaluation of Illiteracy (June 1994)

The adjudicator is required to determine educational abilities based on the claimant’s numerical grade of education completed, unless there is contradictory evidence. Contradictory evidence that could indicate possible illiteracy may be found in medical reports, reports of field office personnel, work history reports, etc. HALLEX I-5-3-12(A)

HALLEX I-5-3-12(B) provides that adjudicators should be aware that claimants who may not recognize the relevance of their illiteracy may attempt to hide it. If an ALJ has reason to believe that an individual may be illiterate, but the evidentiary record does not clearly show literacy or illiteracy, the ALJ may want to ask the individual at the administrative hearing to read and write a simple message, in addition to eliciting testimony on the issue. Any writing obtained from the individual at the hearing should be entered as an exhibit. It is also appropriate to obtain any available school records or any other evidence that would bear on the issue.

Development of illiteracy may be especially important to the case when the issue has a direct bearing on which Grid Rule applies. Specifically, Grid Rules 201.17 and 202.09 direct a conclusion of disability when a claimant is illiterate and the other medical and vocational factors are identical to the cited rule. However, the same claimant who is at least literate and able to communicate in English would be found not disabled under Grid Rules 201.18 and 202.10. The ALJ should give careful consideration to the need to develop possible illiteracy when considering whether Rule 201.18 or 202.10 applies to direct a conclusion.

Case Law

Second Circuit

The ALJ improperly considered the prospects for sedentary job employment in light of the claimant’s inability to speak English and his possession of only a fifth grade education. Minuto v. Secretary of Health and Human Servs., 525 F. Supp. 261, 265 (S.D.N.Y. 1981).

Third Circuit

Where the claimant’s past work necessarily involved comprehension and evaluation of written documents, and the claimant admitted to having completed the seventh grade, the court found that the ALJ properly concluded that the claimant was literate. Tavoletti v. Sullivan, 732 F. Supp. 578, 581-82 (W.D. Pa. 1989).

Fourth Circuit

The district court found that the ALJ’s finding that a claimant had a limited education was not supported by substantial evidence when the claimant had attended school through the sixth grade but the transcript reflected evidence of his functional illiteracy and his limited ability to do simple arithmetic or to count. Freeman v. Harris, 509 F. Supp. 96, 101 (D.S.C. 1981).

Fifth Circuit

In Martinez v. Heckler, 735 F.2d 795 (5th Cir. 1984), the Fifth Circuit held that in cases where a “claimant is both illiterate and unable to communicate in English, he does not fall within the criteria set out in Rule 201.23.” Id. at 797. This Rule is applicable in those cases where a claimant can perform sedentary work, is illiterate or unable to communicate in English, is 18 to 44 years old and has an unskilled work history or no work history. Id. at 796. Thus, the court remanded to determine whether or not the claimant was unable to communicate in English. Id. at 797.

The Fifth Circuit found that the ALJ erroneously determined that the claimant was literate (despite evidence that the claimant could not read or write) and, therefore, applied an incorrect Grid Rule. Albritton v. Sullivan, 889 F.2d 640, 643 (5th Cir. 1989).

A Texas district court noted that as a consequence of Martinez v. Heckler, 735 F.2d 795 (5th Cir. 1984), “ALJs in this circuit are instructed that, ‘when illiteracy and inability to communicate in English are alleged or appear to be in question, findings with respect to both issues must be made.’”Delgado v. Barnhart, 305 F. Supp.2d 704, 715 (S.D. Tex. 2004), citing AR 86-3(5)). As an accurate assessment of the claimant’s literacy and ability to communicate in English were deemed critical to a proper assessment of the claimant’s educational level, and since the ALJ failed to employ the appropriate legal and procedural standards in assessing his educational level, substantial evidence did not support the ALJ’s finding that the claimant had a limited education. Id. at 718.

The sole issue before the court in Jimmerson was whether the claimant was illiterate. Jimmerson v. Apfel, 111 F. Supp.2d 846, 849 (E.D. Tex. 2000). In Jimmerson, the claimant presented abundant testimony regarding his illiteracy, including a witness who had known the claimant for ten years offered corroborating testimony that he had personal knowledge of the claimant’s inability to read and write. The ALJ rejected this uncontradicted evidence of illiteracy, in part, based on the fact that since the claimant attended high school through the tenth grade, it was “highly unlikely” that he “could proceed to that level of education and be illiterate.” Id. However, the court stated that it was “clear” that the claimant’s past level of education was not dispositive of the issue of his alleged illiteracy. Id. The court concluded that the record revealed that whatever schooling the claimant may have received was “no longer meaningful and did not represent his educational abilities in the face of uncontradicted evidence that he was functionally illiterate.” Id., citing Albritton v. Sullivan, 889 F.2d 640, 643 (5th Cir. 1989). See also Bridges v. Commissioner of Social Sec. Admin. 278 F. Supp.2d 797, 806-807 (N.D. Tex. 2003) (holding that the ALJ’s omission of illiteracy from the hypothetical question, “although not obviously defective at the time of the hearing, rendered his hypothetical questions defective upon the Appeals Council’s receipt of evidence of Plaintiff’s illiteracy”).

Sixth Circuit

The claimant was determined to be functionally illiterate, despite the fact that he had a sixth grade education. Conn v. Secretary of Health and Human Servs., 51 F.3d 607, 609 (6th Cir. 1995).

Despite “overwhelming evidence” of the claimant’s illiteracy, the ALJ erroneously concluded that the claimant possessed a marginal education and was not disabled. Skinner v. Secretary of Health & Human Servs., 902 F.2d 447, 450 (6th Cir. 1990). Had the ALJ properly found the claimant illiterate, the Grids would have directed the ALJ to award the claimant benefits. Id.

Even though the claimant had a seventh grade education, a Michigan district court concluded that substantial evidence did not support the ALJ’s conclusion that the claimant had a limited education, as the evidence strongly supported the conclusion that the claimant was illiterate. Boone v. Sec’y of Health & Human Servs., 595 F. Supp. 758, 759-760 (E.D. Mich. 1984). In so holding, the court cited to the claimant’s testimony that he could not read or write, could not write a letter or a note, could not read the newspaper, and that his daughter had to read a letter for him. Id. at 760. The court also found that “this evidence of illiteracy is further buttressed by the record which is replete with references indicating that plaintiff’s forms and applications were completed by others and that plaintiff needs his daughter’s assistance in processing his claim.” Id. See also Young v. Comm’r of Soc. Sec., 351 F. Supp.2d 644, 648 (E.D. Mich. 2004) (noting that the claimant was functionally illiterate, given his testimony that while he could make out a grocery list, he was unable to obtain a driver’s license in Iowa because he could not take the written test).

A Tennessee district court remanded for reevaluation based on the correct educational level where the ALJ erroneously found that the claimant had a high school education, when in fact, the claimant only had a tenth grade education with reading and arithmetic abilities at the third grade level. Field v. Apfel, 34 F. Supp.2d 1081, 1091-92 (W.D. Tenn. 1998).

“Illiteracy” was intended to be included in the education component of Grid Rule 201.19. Welchance v. Bowen, 731 F. Supp. 806, 811 (M.D. Tenn. 1989). If such had not been the intent, the drafters would have used the same language they used in Rule 201.18. Id.

Seventh Circuit

The Seventh Circuit determined that the ALJ properly found that the claimant was literate, as described in the regulations. Glenn v. Secretary of Health & Human Servs., 814 F.2d 387, 391 (7th Cir. 1987).

In Yourek v. Barnhart, 334 F. Supp.2d 1090 (N.D. Ill. 2004), the court held that the ALJ had an obligation to develop a complete record once the claimant had raised the issue of his potential illiteracy. Id. at 1093. The court noted that neither the ALJ nor the claimant’s counsel “made any attempt to ascertain Mr. Yourek’s literacy level by asking him to perform such tasks as reading a brief article or writing a note.” Id. As the ALJ’s determination regarding the claimant’s literacy level was not supported by substantial evidence, and as the literacy issue was crucial to the disability determination, the court remanded for re-evaluation of the claimant’s literacy level. Id. at 1093-94.

An Illinois district court held that there was substantial evidence in the record that the claimant was not illiterate. Briscoe ex rel. Taylor v. Barnhart, 309 F. Supp.2d 1025, 1041-42 (N.D. Ill. 2004). In so holding, the court noted that even though the claimant testified that he could not read or write well, and that he could not understand a lot of words when attempting to read a newspaper, “[a]n inability to read or write well, or an inability to understand words in a newspaper, does not necessitate a finding that Plaintiff was unable to perform minimal literary endeavors similar to writing simple messages such as instructions or inventory lists.” Id., citing 20 C.F.R. § 404.1564. Additionally, the court cited to the claimant’s testimony that he can read and write a “little bit, and when he does read, he likes to read the newspaper.” Id. Thus, the ALJ was not required to find the claimant disabled under Rule 202.09 of the Grids. Id. at 1041-42.

Eighth Circuit

In Wilcutts v. Apfel, 143 F.3d 1134, 1137 (8th Cir. 1998), the second ALJ in the case determined the claimant was not illiterate partly because he achieved an IQ score of 86, finding that, “[t]his performance is impossible for an illiterate person.” The Eighth Circuit held that the ALJ mistakenly viewed the WAIS-R as a test of a person’s ability to read and write. The court also emphasized several factors that supported the finding that the claimant was illiterate: (1) the claimant had testified at the first hearing that he could not read or write; (2) his doctor and the SSA worker observed that the claimant could not read; (3) the claimant’s wife corroborated his testimony that he could not read; and (4) the VE testified that illiteracy would have a significant impact on the claimant’s ability to work. Id. The court remanded the case to the Commissioner for further testing to settle the question of the claimant’s literacy, stating:

Tests such as the Wechsler Individual Achievement Test (WIAT), the Wide Range Achievement Test 3 (WRAT3), or the Woodcock-Johnson Psychoeducational Battery–Revised: Tests of Achievement (WJ-R ACH), are designed to measure people’s ability to, among other things, read and write.

Id. at 1138, citing Otfried Spreen & Esther Strauss, A Compendium of Neuropsychological Tests, Administration, Norms, and Commentary 161 (2d ed. 1998).

In Holz, the Eighth Circuit directed the Commissioner to consider, on remand, whether the Medical-Vocational Guidelines, “to the extent they are instructive, direct or suggest a finding of disability in the particular circumstances of this case.” Holz v. Apfel, 191 F.3d 945, 947 (8th Cir. 1999). The court noted that the claimant was between the ages of 47 to 49 during the relevant period, could not perform his past relevant work, had no transferrable skills, was physically limited to sedentary work, and had an IQ of 76 and a limited ability to read and write and may be illiterate or “nearly so.” Id. See also Muncy v. Apfel, 247 F.3d 728, 735 (8th Cir. 2001) (directing the Commissioner to consider, on remand, whether the Medical-Vocational Guidelines “suggest a finding of disability in the particular circumstances of this case,” noting that the claimant was illiterate, could not write or manage his own finances, could not perform his past relevant work, has no relevant skills, and is physically limited to light work).

In Howard, the claimant argued that she was illiterate, which the court noted would support a finding of disabled even if the claimant could perform light work. Howard v. Massanari, 255 F.3d 577, 584 (8th Cir. 2001), citing 20 C.F.R. Part 404, Subpt. P, App. 2, § 201.09. The court determined that as the “literacy question [was] crucial, the ALJ should have developed a stronger record on this point.” Id., citing Wilcutts v. Apfel, 143 F.3d 1134, 1137-38 (8th Cir. 1998). However, the Eighth Circuit held that “[i]n the final analysis,” the fact that the ALJ failed to develop “more robust proof of literacy (or illiteracy)” was not “fatal” to the Commissioner’s decision since the record included evidence that the claimant had the ability to read, and, “given our deferential standard of review,” the evidence was sufficient to support the ALJ’s conclusion that the claimant was functionally literate. Id. at 584-85.

The Eighth Circuit commented that a finding that a claimant has the ability to read and write only very simple messages could preclude an award of disability benefits. Mitchell v. Shalala, 48 F.3d 1039, 1042 (8th Cir. 1995), citing Starks v. Bowen, 873 F.2d 187, 190 (8th Cir. 1989) (concluding that although the claimant could only read and write “poorly,” substantial evidence supported the Commissioner’s finding that he was literate). See also Foreman v. Callahan, 122 F.3d 24, 27 (8th Cir. 1997) (remanding for further proceedings where a claimant suffered from borderline intellectual functioning, a learning disability which required special instruction, and “very limited” ability to read and write).

Limited education, generally considered to have ended at 7th grade through 11th grade, is defined as the ability to perform “reasoning, arithmetic, and language skills, but not enough to allow a person with these educational qualifications to do most of the more complex job skills needed in semi-skilled or skilled jobs . . . .” Shelton v. Chater, 87 F.3d 992, 995 (8th Cir. 1996). In Shelton, the Eighth Circuit found that the ALJ properly developed the record regarding literacy, and affirmed the ALJ’s finding that the claimant was literate with a limited education. Id. See also Loving v. Dep’t of Health & Human Servs., 16 F.3d 967, 971 (8th Cir. 1994) (rejecting a psychologist’s conclusion that the claimant was functionally illiterate where the conclusion of functional illiteracy was contradicted by the claimant’s own testimony about his reading activities).

In Hensley v. Barnhart, 352 F.3d 353 (8th Cir. 2003), the court held that although there might not be substantial evidence in the record to support the ALJ’s finding that the claimant has at least an eighth-grade education and was not illiterate, any resulting error was harmless. Id. at 357.

A Missouri district court reversed and remanded for further examination and expansion of the record because the ALJ made inconsistent findings regarding literacy evidence without explanation. King v. Apfel, 991 F. Supp. 1101, 1104 (E.D. Mo. 1997).The court noted that the claimant’s disability claim was based in part on his illiteracy, and that his application form indicated he needed assistance because he could not read or write. Id. Additionally, since the claimant testified that he knew only “little words,” and could write “a few” of them, and that he could not complete a job application, there was at least some “evidence to contradict” the presumption of language skills high enough to be associated with a marginal education.Accordingly, it was not permissible to base the claimant’s education entirely on his grade level, as the ALJ apparently did. Id. at 1105, citing Smith v. Shalala, 46 F.3d 45, 46 (8th Cir. 1995); Walston v. Sullivan, 956 F.2d 768, 771-72 (8th Cir. 1992). The court concluded that there was no evidence the claimant could write a simple message, and that the record “simply does not provide enough evidence to allow the court to determine on what basis the ALJ discredited plaintiff’s claims, and whether substantial evidence supports the finding.” Id. at 1106.

In Anderson v. Callahan, 981 F. Supp. 1258 (E.D. Mo. 1997), the court questioned the claimant’s alleged illiteracy because: (1) he was not observed to have problems reading and writing at his initial disability interview; (2) he had obtained jobs and a driver’s license; (3) he did not allege that difficulty reading and writing caused him to lose any of his jobs; and (4) he did not allege illiteracy as a disabling condition in either his application for disability benefits or his request for reconsideration. Id. at 1268-69.

Ninth Circuit

In Pinto v. Massanari, 249 F.3d 840 (9th Cir. 2001), the court noted that the ALJ’s failure to clarify how the claimant’s language and literacy abilities factored into his analysis that she could perform her past relevant work, “given that the Dictionary of Occupational Titles description required language ability above that possessed by Pinto.” Id. at 846. As the Ninth Circuit explained:

Illiteracy seriously impacts an individual’s ability to perform work-related functions such as understanding and following instructions, communicating in the workplace, and responding appropriately to supervision. These are all factors that Social Security Ruling No. 96-8p requires an ALJ to consider when determining whether a claimant has the residual functional capacity to perform past relevant work. Here the ALJ, although noting Pinto’s limitation in both his findings of fact and hypothetical to the vocational expert, failed to explain how this limitation related to his finding that Pinto could perform her past relevant work as generally performed. See SSR 82-62.

We do not suggest that applicants who are illiterate are entitled to a finding in step four of the disability proceeding that they are disabled. A claimant is not per se disabled if he or she is illiterate. We merely hold that in order for an ALJ to rely on a job description in the Dictionary of Occupational Titles that fails to comport with a claimant’s noted limitations, the ALJ must definitively explain this deviation. Neither the ALJ nor the vocational expert addressed the impact of Pinto’s illiteracy on her ability to find and perform a similar job.

Id. at 846-847 (citation omitted). The court also noted that a claimant who can only speak Spanish is considered illiterate. Id. at 846 n. 4. The court observed that “[i]lliteracy seriously impacts an individual’s ability to perform work-related functions such as understanding and following instructions, communicating in the workplace, and responding appropriately to supervision” and these are all factors that SSR 96-8p “requires an ALJ to consider when determining whether a claimant has the residual functional capacity to perform past relevant work.” Id.

The Ninth Circuit noted in Silveira v. Apfel, 204 F.3d 1257 (9th Cir. 2000) that the Commissioner bears the burden of establishing that the claimant is literate. Id. at 1261. In Silveira, the court remanded the case for further proceedings, finding that the ALJ made no express finding that the claimant was literate in English, and the record lacked sufficient evidence to determine this issue. Id. at 1261-62.

In 1996, the Ninth Circuit held that the word “or” in Grid Rule 201.23 should be interpreted as conjunctive and applied to claimants who are unable to communicate in English and/or are illiterate. Chavez v. Department of Health & Human Servs., 103 F.3d 849, 852 (9th Cir. 1996).In such a case, a claimant who was both illiterate and unable to communicate in English, and had the RFC for sedentary work, would be subject to Grid Rule 201.23, providing that a claimant who is illiterate or unable to communicate in English is not disabled. Id.

Tenth Circuit

The Tenth Circuit held that the ALJ’s determination that the claimant was literate was not based on substantial evidence, and was based solely on the ALJ’s unsubstantiated inference derived from the claimant’s previous employment that the claimant could read and write. Eggleston v. Bowen, 851 F.2d 1244, 1248 (10th Cir. 1988).

Because the Commissioner’s determination was based on an unsupported finding and the applicable Grid factors did not coincide with a particular rule, the Tenth Circuit remanded the case to determine whether there were jobs in the national economy that the claimant could perform taking into account his illiteracy. Id.

The Tenth Circuit found a claimant to be illiterate where he had completed eight years of formal schooling and could sign his name, but where the record contained “absolutely no evidence” of literacy. Dollar v. Bowen, 821 F.2d 530, 535 (10th Cir. 1987).

The ALJ’s determination that the claimant was literate was not based on substantial evidence where the record contained evidence that the claimant could not write, even though she could read (minimally). Dixon v. Heckler, 811 F.2d 506, 510 (10th Cir. 1987).

In Espinosa v. Sec’y of Health & Human Servs., 565 F. Supp. 810 (D. Kan. 1983), the court held that there was “not a scintilla of evidence, much less substantial evidence” for the ALJ’s finding that the claimant was “not illiterate.” Id. at 815. The court noted that the record was “replete with evidence of plaintiff’s difficulty with spoken, much less written, evidence,” including the fact that the claimant testified that he could not read English; his education was limited to the second grade in Mexico; and there was “no evidence of record that he could read English at all.” Id.

A Kansas district court rejected a claimant’s contention that he was functionally illiterate, noting that he was able to read a booklet to obtain his driver’s license, was able to work as a security guard, had completed several hours of vocational education, had spent time in the military, and had some college credits. Ross v. Chater, 930 F. Supp. 1452, 1455 (D. Kan. 1996).

Eleventh Circuit

In Wolfe v. Chater, 86 F.3d 1072 (11th Cir. 1996), the Eleventh Circuit held that substantial evidence did not support the ALJ’s finding that the claimant possessed marginal education and had a reading and spelling level just below the third grade level or in the second grade level of functioning. Id. at 1076. The court looked to other circuits for guidance on this issue, noting that: (1) the Eighth Circuit has held that being able to sign one’s name does not make one literate and that one can be illiterate even if one had a significant amount of formal schooling; (2) the Sixth Circuit has held that a person who reads and writes at the third grade level is functionally illiterate; and (3) the Tenth Circuit has held that, especially in cases where many years have passed since the completion of formal education, the numerical grade level completed in school may not be representative of actual educational abilities. Id. at 1076-77, citing Glenn v. Sec’y of Health & Human Servs., 814 F.2d 387, 390 (7th Cir. 1987); Skinner v. Sec’y of Health & Human Servs., 902 F.2d 447, 449 (6th Cir. 1990); Dixon v. Heckler, 811 F.2d 506, 509-10 (10th Cir. 1987).Because the determination of illiteracy affected the application of the Grids, the Eleventh Circuit remanded the matter for additional evaluation as to whether the claimant was illiterate or marginally educated. Id. at 1079-80 n.7.

An Alabama district court held that the ALJ properly found that the claimant was not illiterate, despite his testimony that he had failed the fifth and sixth grades and completed the seventh grade and testified that he could not read or write. McCray v. Massanari, 175 F. Supp.2d 1329, 1333 (M.D. Ala. 2001). The court noted that the ALJ considered other evidence, including the claimant’s “previous work at a semi-skilled level requiring technical knowledge or skills and supervisory responsibility.” Id., citing 20 C.F.R. § 404.1564(a).

In Lipson v. Barnhart 347 F. Supp.2d 1182 (M.D. Ala. 2004), the claimant argued that remand was required in light of a conflict regarding her education, citing in part, the findings of a psychologist who stated that his assessment revealed that she was illiterate. Id. at 1186. The court noted that this psychologist’s results were contradictory because he also found that the claimant could read, “albeit at less than the third grade level.” Id.at 1187. Furthermore, by the claimant’s own account, she can read, and she can also write, as she “completed a great portion of the materials in her application and supplements that are part of this record.” Id. Furthermore, the psychologist’s assessment made no findings regarding “the impact of Lipson’s reading skills and intellectual functioning upon her ability to perform vocational tasks.” Id. Thus, the court affirmed the ALJ’s finding that the claimant completed the tenth grade. Id. at 1188.

Inability to Afford Treatment and Social Security Disability

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 case law 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.

Tip

If you lack the financial resources to pay for prescribed treatment, document your financial circumstances and your attempts to obtain the required treatment.

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 (5th Cir. 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 (8th Cir. 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, 244F. 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).