IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-40337 _____________________

ROBERT FELLOWS,

Plaintiff-Appellant,

versus

KENNETH S. APFEL, Commissioner of Social Security Administration,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (C-97-CV-262) _________________________________________________________________ March 8, 2000 Before JOLLY and DENNIS, Circuit Judges, and DAVID D. DOWD,* District Judge.

PER CURIAM:** Robert Fellows has applied for disability benefits and

supplemental security income benefits. The Social Security

Administration administrative law judge (“ALJ”) denied benefits,

and both the administrative appeals council and the district court

affirmed. We affirm.

I

* District Judge of the Northern District of Ohio, sitting by designation.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. On September 30, 1994, Mr. Fellows, then 35, was hit by a car.

After the amputation of one leg below the knee and of his pinky

finger, the hospital discharged Mr. Fellows on October 4. The

medical records noted that he was progressing “nicely,” and that

“[a]fter [the prosthesis] fitting . . . it is expected that this

patient will be able to ambulate completely independently without

[an] assistive device.” The report concluded that “[t]he patient

is completely independent in all areas of activities of daily

living.” On October 11, 1994, Mr. Fellows told the examining

doctor that his appetite, energy level, and sleep patterns were

normal. Despite this, Mr. Fellows filed for disability benefits

under

(i), 423, and 1382 on November 11, 1994.

After another visit to the doctor, a new report on December 12

stated that Mr. Fellows was “ambulating with and without a cane

with a temporary prosthesis,” and that he would be re-evaluated in

a year for a permanent one. On February 3, 1995, Mr. Fellows told

the doctor that he was still able to enjoy lifting weights and

raising his dogs. On February 14, he was fitted for a permanent

prosthesis. On February 28, Mr. Fellows reported to the doctor

that his back was doing well. After that, he stopped going to the

doctor.

In January 1996, there was a hearing on whether Mr. Fellows

could obtain disability benefits. Both Mr. Fellows and a

vocational expert testified at the hearing. Afterwards, the ALJ

denied Mr. Fellows’s application for benefits, concluding that

2 there was a significant number of jobs that Mr. Fellows could

perform. Mr. Fellows appealed to the Appeals Council, which

affirmed the ALJ’s decision.

Mr. Fellows then sought judicial review in district court.

The magistrate judge recommended that the ALJ’s decision be

affirmed, and the district court adopted that recommendation. Mr.

Fellows then filed a motion for a new trial, which was denied.

Finally, he filed a notice of appeal and a motion to proceed in

forma pauperis on appeal. The district court granted his in forma

pauperis request.

II

This court reviews ALJ decisions to deny benefits by

determining whether the ALJ applied the correct legal standards,

and whether the decision is supported by substantial evidence.

Falco v. Shalala,

(5th Cir. 1994). Substantial

evidence is more than a scintilla and less than a preponderance.

It is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion. Richardson v. Perales,

,

,

(1976), quoting

Consolidated Edison Co. v. NLRB,

,

,

(1938). If supported by substantial evidence, the

Secretary's findings are conclusive. Id. at 390;

(g).

III

A

3 At the hearing, Mr. Fellows argued that excessive pain in his

back, amputated leg, and head rendered him disabled. The ALJ,

however, found that his alleged pain did not constitute a

disability. On appeal, Mr. Fellows argues that the ALJ improperly

relied on Mr. Fellows’s demeanor at the hearing and failed to

consider Mr. Fellows’s inability to afford prescription medication

in reaching its conclusion.1 We disagree.

The relevant statute defines disability as the “inability to

engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment . . . which

has lasted or can be expected to last for a continuous period of

not less than 12 months.”

(d)(1)(A). In evaluating

a disability claim, the Secretary follows a five-step sequential

process. The burden of establishing the first four elements is on

the claimant. First, the claimant must not be presently working.

(b). Second, the claimant must establish an

“impairment or combination of impairments which significantly

limits [his or her] physical or mental ability to do basic work

activities.”

at § 404.1520(c). If the claimant satisfies both

of these requirements, the third step consists of establishing that

1 Mr. Fellows also appears to argue that the ALJ’s determination with respect to his residual functional capacity to obtain alternative employment was faulty because the court improperly relied on its findings with respect to his poverty and continuing pain. Because we hold that those findings were proper, reliance on them was as well, and was simply part of the five-step sequential evaluation process.

4 the impairment falls within the definition of one of the enumerated

impairments in the appendix to the regulations. Id. at

§ 404.1520(d). If the claimant satisfies this third criterion,

then he or she is disabled per se, without regard to vocational

factors. If he or she fails to establish the third step, however,

vocational factors are considered during the fourth step. At that

stage, the claimant must establish that the impairment prevents him

or her from doing the same work he or she did in the past. Id. at

§ 404.1520(e). At that point, at the fifth step, the burden shifts

to the Secretary to prove that the claimant can perform relevant

work. If the Secretary meets this burden, the claimant must then

prove that he cannot in fact perform the work suggested. Id. at

§ 404.1520(f); see also Fraga, 810 F.2d at 1301-02.

B

Mr. Fellows fails to surmount the second step of this test,

establishing a satisfactory impairment. With respect to pain, an

ALJ must consider subjective complaints; however, it is within the

ALJ’s discretion to determine the debilitating effect of such

symptoms. Jones v. Bowen,

(5th Cir. 1987). The

ALJ is not required to credit subjective evidence, such as the

claimant’s testimony, over conflicting medical evidence. Anthony

v. Sullivan,

(5th Cir. 1992). In addition, the

ALJ may consider the claimant’s demeanor during the hearing, among

other factors, in evaluating the claimant’s credibility. Villa,

.

5 At the hearing, Mr. Fellows stated that his amputation caused

him pain at a severity level of “eight” on a scale of “one-to-ten”;

that the pain intensity during the hearing was “seven”; and that

periodic headaches reached “ten.”

As the ALJ noted, this testimony did not correspond with Mr.

Fellows’s medical reports. The last of these was from

February 1995. It stated that Mr. Fellows had mentioned pain in

his amputated leg, but that his back was doing well. Earlier

medical reports indicated that Mr. Fellows had experienced pain,

but that the pain was not severe. None of the reports mentioned a

prescription for pain medication.

In addition, the ALJ found Mr. Fellows’s demeanor at the

hearing consistent with the level of pain Mr. Fellows claimed to

suffer: “[he] appeared to be very comfortable at the hearing, and

in no pain whatsoever, though he did limp a little when entering

and leaving the hearing room.”

Based on the record before us, we conclude that there is

substantial evidence supporting the ALJ’s determination that Mr.

Fellows did not suffer from a disability due to pain. We reach

this conclusion, as the ALJ did, based on Mr. Fellows’s medical

records in addition to his demeanor during the hearing.

Mr. Fellows also argues that the ALJ did not properly consider

Mr. Fellows’s inability to afford pain medication in determining

that he was not impaired. It is true that if a claimant cannot

afford the prescribed treatment or medicine, a curable, temporary

6 disability is treated as a permanent one. Lovelace v. Bowen,

(5th Cir. 1987). But that presumes the existence of a

disabling condition. In this case, the ALJ properly found none, so

Mr. Fellows’s inability to afford prescription medicine is

irrelevant. See Villa v. Sullivan,

(5th Cir.

1990)(holding that the fact that a claimant cannot afford treatment

for a condition that is not disabling is inconsequential). Even if

the ALJ had found Mr. Fellows disabled due to excessive pain, there

is nothing on the record suggesting that Mr. Fellows ever obtained

any prescription, much less that it was too expensive for him to

afford.

We conclude, therefore, that Mr. Fellows cannot meet the

second step required for establishing a valid claim. Thus, this

claim must fail.2

IV

Mr. Fellows also contends that the hypothetical posed to the

vocational expert during the hearing was incomplete because it did

not mention Mr. Fellows’s headaches and loss of sleep. Thus, the

vocational expert’s conclusion about Mr. Fellows’s ability to find

alternate employment did not account for those factors.3

2 Because Mr. Fellows’s claim fails at the second step, we need not address his arguments with respect to the third step, whether he has a disability that qualifies under listing 1.10C(3) of 20 C.F.R. Pt. 404, Subpt. P. Appendix 1. 3 Mr. Apfel responds by arguing that Mr. Fellows failed to raise this issue before the magistrate judge. We conclude that he did so adequately in his summary judgment brief by asserting that

7 Again, we disagree. The ALJ concluded that the headaches were

not severe, and we have already affirmed that finding. There was,

therefore, no reason to pose that question to the vocational

expert. And even if the hypothetical had been incomplete, Mr.

Fellows’s lawyer specifically asked the vocational expert about the

effect headaches would have on Mr. Fellows’s vocational options.

Thus, the issue was before the ALJ.

V

For the reasons stated herein, the district court is

A F F I R M E D.

the ALJ had omitted from the hypothetical “any impairment of concentration due to pain.” Mr. Fellows’s list of symptoms causing “unremitting pain” resulting in an impairment to his concentration included headaches.

8