* Pursuant to Fed. R. App. P. 43(c), John J. Callahan , Acting Commissioner

of Social Security, is substituted for Shirley S. C hater, Commissioner of Social Security, as the defendant in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 1 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

USHA KATARIA,

Plaintiff-Appellant,

v. JOHN J. CALLAHAN, Acting Commissioner, Social Security Administration, *

Defendant-Appellee. No. 97-5050 (D.C. No. 95-CV-730) (N.D. Okla.)

ORDER AND JUDGMENT **
Before ANDERSON, BARRETT, and MURPHY, Circuit Judge s. After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Claimant Usha Kataria appeals from an order of the district court affirming the final decision of the Commissioner of Social Se curity denying her application for supplemental security income benefits. We revi ew the Commissioner's decision to determine whether it is supported by su bstantial evidence and whether the correct legal standards were applied. See Washington v. Shalala , 37 F.3d 1437, 1439 (10th Cir. 1994). The Commissioner’s fa ctual findings are conclusive when supported by substantial evidence, see 42 U.S.C. § 405(g), which is adequate relevant evidence that a reasonable mind m ight accept to support a conclusion, see Richardson v. Perales , 402 U.S. 389, 401 (1971). In her application for benefits filed in March 1993 , claimant contended that she was disabled due to a variety of ailments inclu ding bone spurs in her heels, goiter, hypertension and ulcer disease. Subsequent ly she was diagnosed as having diabetes. Relying on the opinion of a medical expe rt who had reviewed claimant’s medical records, the administrative law judge (ALJ) concluded that the goiter, hypertension, ulcer disease and diabetes we re adequately controlled through medication and thus were not severe impairm ents. He found her bone spurs to be severe impairments, but also found theydid not prevent her from performing the full range of sedentary work. Becau se claimant had no past relevant work, the case proceeded to step five of t he five-part sequential process for determining disability. See 20 C.F.R. § 416.920. Relying on the Medical--3-

Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2, the ALJ determined that claimant was not disabled and denied her appli cation for benefits. The Appeals Council denied review, making the ALJ’s det ermination the final decision of the Commissioner. On appeal, claimant contends that the ALJ’s finding that her goiter, hypertension, ulcer disease, and diabetes were not severe impairments because they were well controlled with medication is not supported by substantial evidence because the ALJ failed to consider the fac t that claimant could not afford and therefore was not taking the medication necessary to control these ailments. She further contends that because this c ase reached step five, the burden was on the Commissioner to show that the imp airments were adequately controlled. Ordinarily, a claimant cannot be found disabled whe n her impairment can be controlled through medical treatment and she unj ustifiably refuses to undergo that treatment. See 20 C.F.R. § 416.930; Teter v. Heckler , 775 F.2d 1104, 1107 (10th Cir. 1985). Claimant does not question the A LJ’s conclusion that her impairments can be readily controlled through use o f prescribed medications. She contends instead that (1) she did not take the medi cations, and (2) the reason she did not take them was because she could not afford them, which may be a justifiable excuse, see id.-4-

There is evidence in the record that claimant was at least delayed in obtaining, and maybe never did obtain, certain medi cal procedures , such as X-rays and a thyroid scan that apparently were not availab le from free clinics. However, there is no medical evidence that she could not or did not obtain prescribed medications or that her condition deteriorated or was not controlled because of a failure to take prescribed medications. It is clea r that at least until October 1993, nine months prior to her hearing before the ALJ, sh e was taking her prescribed medications. See Appellant’s App. Vol. II at 129 (claimant’s statem ent listing medications she was then taking, including zantac f or her ulcer, hyydrochlorathizide for hypertension, and synthroidfor her goiter). She apparently obtained these medications from the Mort on Clinic, which claimant describes as a clinic for the homeless that apparently provides, at no cost, medications and certain medical services. See, e.g , Appellant’s Br. at 4-5 (describing numerous doctor visits to Morton and Ne ighbor for Neighbor clinics and noting that “Ms. Kataria returned each month [t o the Morton Clinic] for her medication”). There is some evidence indicating that at some poin t claimant may have been unable to obtain her medications and was not t aking them. At her hearing before the ALJ on July 1, 1994, claimant stated that the doctor had given her medicine for her thyroid problem, but that it did n ot help much. Appellant’s App.-5-

Vol. II at 40. Later, in response to a question fr om her representative concerning why she needed benefits, she stated: I don’t have money to pay the bills. I don’t have any doctor. My sickness, my disease, this thyroid problem, knee pa in, I just need some medicine, some medication, some treatment. I can not go to any doctor, they always refuse to do my treatment. Id. at 56-57. There were no followup questions or oth er discussion at the hearing concerning claimant’s failure to take and/or inabil ity to obtain her prescribed medications. The only other indication in the reco rd that she might not be taking her medications is a January 1995 notation in the r ecords from the Neighbor for Neighbor Clinic, where claimant went for treatment for her diabetes, stating that the University of Oklahoma Adult Medicine Clinic “turned pt over to collections-- so pt. discontinued treatment & has not been going any where for care since then.” Id. at 236. However, claimant apparently obtained med ication for her diabetes from the Neighbor for Neighbor Clinic “to last until Morton appt.” Id. at 235. The ALJ found that [t]he claimant has medically-determinable impairmen ts of hypothyroidism and goiter, hypertension, ulcer dise ase, and diabetes, but the medical evidence shows that these condition s are well controlled with medication. The Administrative LawJudge finds that these impairments are not severe and would no more than minimally affect her ability to engage in substantial gainful activity.-6-

Id. at 14. The ALJ did not address whether claimant w as continuing to take her medications, nor whether she failed to take them be cause she could not afford them. The evidence is at best inconclusive whether claima nt in fact failed to take her prescribed medications, and whether if she did not take them, it was because she could not afford them, particularly in light of their apparent availability from free clinics. We disagree with claimant’s contenti on that the absence of evidence from October 1993 to January 1995 showing that she did take her medications necessarily means that she did not take them, that the reason she did not take them was because of her poverty, or even that she contin ued to experience symptoms. Moreover, her contention that the lack of treatmentfor her thyroid disorder caused her diabetes is not supported by any medical evidence. We conclude that the ALJ did not commit reversible error in finding that claimant’s goiter, hypertension, ulcer disease and diabetes were well controlled by medications. AFFIRMED.

Entered for the Court Michael R. Murphy Circuit Judge