                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           OCT 1 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    USHA KATARIA,

                Plaintiff-Appellant,

    v.                                                   No. 97-5050
                                                     (D.C. No. 95-CV-730)
    JOHN J. CALLAHAN, Acting                             (N.D. Okla.)
    Commissioner, Social Security
    Administration, *

                Defendant-Appellee.


                             ORDER AND JUDGMENT **


Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.


         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.


*
      Pursuant to Fed. R. App. P. 43(c), John J. Callahan, Acting Commissioner
of Social Security, is substituted for Shirley S. Chater, Commissioner of Social
Security, as the defendant in this action.
**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Claimant Usha Kataria appeals from an order of the district court affirming

the final decision of the Commissioner of Social Security denying her application

for supplemental security income benefits. We review the Commissioner's

decision to determine whether it is supported by substantial evidence and whether

the correct legal standards were applied. See Washington v. Shalala, 37 F.3d

1437, 1439 (10th Cir. 1994). The Commissioner’s factual findings are conclusive

when supported by substantial evidence, see 42 U.S.C. § 405(g), which is

adequate relevant evidence that a reasonable mind might 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 including bone spurs in her heels,

goiter, hypertension and ulcer disease. Subsequently she was diagnosed as having

diabetes. Relying on the opinion of a medical expert who had reviewed

claimant’s medical records, the administrative law judge (ALJ) concluded that the

goiter, hypertension, ulcer disease and diabetes were adequately controlled

through medication and thus were not severe impairments. He found her bone

spurs to be severe impairments, but also found they did not prevent her from

performing the full range of sedentary work. Because claimant had no past

relevant work, the case proceeded to step five of the five-part sequential process

for determining disability. See 20 C.F.R. § 416.920. Relying on the Medical-


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Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2, the ALJ determined

that claimant was not disabled and denied her application for benefits. The

Appeals Council denied review, making the ALJ’s determination 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 fact that claimant could not

afford and therefore was not taking the medication necessary to control these

ailments. She further contends that because this case reached step five, the

burden was on the Commissioner to show that the impairments were adequately

controlled.

      Ordinarily, a claimant cannot be found disabled when her impairment can

be controlled through medical treatment and she unjustifiably 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 ALJ’s conclusion that her

impairments can be readily controlled through use of prescribed medications. She

contends instead that (1) she did not take the medications, and (2) the reason she

did not take them was because she could not afford them, which may be a

justifiable excuse, see id.


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      There is evidence in the record that claimant was at least delayed in

obtaining, and maybe never did obtain, certain medical procedures, such as X-rays

and a thyroid scan that apparently were not available 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 clear that at least until October 1993,

nine months prior to her hearing before the ALJ, she was taking her prescribed

medications. See Appellant’s App. Vol. II at 129 (claimant’s statement listing

medications she was then taking, including zantac for her ulcer,

hyydrochlorathizide for hypertension, and synthroid for her goiter). She

apparently obtained these medications from the Morton 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 Neighbor for Neighbor clinics

and noting that “Ms. Kataria returned each month [to the Morton Clinic] for her

medication”).

      There is some evidence indicating that at some point claimant may have

been unable to obtain her medications and was not taking 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 not help much. Appellant’s App.


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Vol. II at 40. Later, in response to a question from 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 pain, 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 other discussion at the hearing

concerning claimant’s failure to take and/or inability to obtain her prescribed

medications. The only other indication in the record that she might not be taking

her medications is a January 1995 notation in the records 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 medication 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 impairments of
       hypothyroidism and goiter, hypertension, ulcer disease, and diabetes,
       but the medical evidence shows that these conditions are well
       controlled with medication. The Administrative Law Judge finds that
       these impairments are not severe and would no more than minimally
       affect her ability to engage in substantial gainful activity.




                                         -5-
Id. at 14. The ALJ did not address whether claimant was continuing to take her

medications, nor whether she failed to take them because she could not afford

them.

        The evidence is at best inconclusive whether claimant 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 contention 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 continued to experience symptoms.

Moreover, her contention that the lack of treatment for 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




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