dissenting:

Without his costly medication and special vegetarian diet, E.T. IV will suffer progressive brain damage and other complications of his inherited disease, isovaleric acidemia, that will lead to his death. The majority would discontinue E.T. IV’s SSI benefits without considering whether his mother, the Plaintiff, can independently afford his life-saving medication.

The Plaintiff contends, and there are no facts in the record to refute her claim, that she cannot afford her son’s treatment without the assistance of his SSI benefits. For nearly six years, the Plaintiff received SSI benefits on behalf of E.T. IV because her income was consistently below the level necessary to qualify her for government assistance. See 20 C.F.R. § 416.202 (to qualify for SSI benefits, claimant must not have more income or resources than are permitted). At the time of the administrative hearing, neither the Plaintiff nor E.T. IV’s father had health insurance that would cover E.T. IV. While the majority suggests that the Plaintiff will be able to secure state assistance to pay for her son’s treatment, maj. op. at 1006-07, the Plaintiff contends that under-funding of the Oregon state health plan will leave her son without the treatment he needs. Based on the Plaintiffs established income qualification for SSI, and the lack of facts refuting that qualification, we can only conclude that the Plaintiff cannot independently afford her son’s expensive medication and diet. Therefore, to deny E.T. IV his SSI benefits is to deny him his life-saving treatment.

I cannot condone permitting a nine-year old boy to suffer brain damage and death. For this reason, I dissent.

The law of this Circuit does not compel the majority’s conclusion that this Court should uphold the discontinuance of E.T. *1008 IV’s SSI benefits. Indeed, firmly-established precedent requires the SSA to take a claimant’s ability to afford necessary treatment into account when making an initial determination regarding whether the claimant is disabled, and therefore entitled to SSI benefits. See, e.g., Gamble v. Chater, 68 F.3d 319, 321 (9th Cir.1995). This principle can and should be extended to ALJ decisions made in the context of continuing disability reviews.

In reaching its conclusion, the majority relies on the proposition that “[ijmpair-ments that can be controlled effectively with medication are not disabling for the purpose of eligibility for SSI benefits.” Maj. op. at 1006. This statement is only partially correct. Impairments that can be controlled effectively with medication are not disabling for the purpose of SSI eligibility if the claimant can obtain the medication, but chooses not to without good reason. See Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir.2004) (“Failure to follow a prescribed course of remedial treatment without good reason is grounds for denying an application for benefits.” (internal quotation marks omitted)). Claimants who cannot afford necessary medication or treatment, however, cannot be denied benefits on the basis that they have not undergone such treatment. See, e.g., Gamble, 68 F.3d at 321 (holding that “[disability benefits may not be denied because of the claimant’s failure to obtain treatment he cannot obtain for lack of funds”); Brown, 390 F.3d at 540 (recognizing 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 [with prescribed treatment]’ ” (quoting Tome v. Schweiker, 724 F.2d 711, 714 (8th Cir., 1984))); Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir.1987) (holding that if “the claimant cannot afford the prescribed treatment or medicine, and can find no way to obtain it, the condition that is disabling in fact continues to be disabling in law.” (internal quotation marks and citation omitted)). Indeed, “[m]edicine or treatment an indigent person cannot afford is no more a cure for his condition than if it had never been discovered.” Lovelace, 813 F.2d at 59 .

This well-settled exception exists because the primary purpose of the Social Security Act is “to give financial assistance to disabled persons because they are without the ability to sustain themselves.” Gamble, 68 F.3d at 322 . To deny benefits to a person because his disability could be prevented by medication that he cannot afford “directly contravene[s]” this purpose. Id. Furthermore, “disabled children who live in low-income households are certainly among the most disadvantaged of all Americans and ... are deserving of special assistance in order to help them become self-supporting members of our society.” H.R.Rep. No. 92-231, at 147-48 (1971), as reprinted in 1972 U.S.C.C.A.N. 4989, 5133-34.

The case law that requires a claimant’s financial situation to be taken into account in an initial SSI disability determination also counsels that such financial considerations be factored into continuing disability reviews in order to fulfill the purposes of the Social Security Act.

The majority justifies its decision to disregard E.T. IV’s financial situation, and thereby deny him benefits, by citing a Fifth Circuit case for the proposition that granting benefits to a claimant “when the claimant’s impairment is not presently disabling, but when the claimant instead seeks SSI benefits as a means of affording medication to prevent his impairment from becoming disabling at an unknown time in the future, could ‘open the door to virtually unlimited claims for preventative benefits.’ ” Maj. op. at 1007 (quoting Burnside v. Bowen, 845 F.2d 587, 592 (5th Cir.1988), abrogated on other grounds by Sullivan v. *1009 Zebley, 493 U.S. 521 , 527 n. 5, 110 S.Ct. 885 , 107 L.Ed.2d 967 (1990)). But Burnside’s basic assumption regarding future “unlimited claims” is flawed.

The Plaintiff is not only seeking benefits to prevent her son’s disability, she is seeking them to prevent his death. If the Plaintiff cannot afford her son’s medication and special diet, then it is not only “conceivable,” Burnside, 845 F.2d at 592 , but certain that E.T. IV’s condition will deteriorate, resulting in his death if treatment is not resumed. Both Dr. Koeller, an associate professor of pediatrics, and Dr. Gross-man, the testifying medical expert, agree that, if untreated, a child with isovaleric acidemia “suffers irreversible and progressive brain damage as well as seizures, acidosis, hyperammonemia, pancytopenia and/or thrombocytopenia, encephalopathy, hypocalcemia, and death.” No evidence in the record refutes this dire conclusion.

Therefore, a holding in favor of the Plaintiff would establish a rule that a child with a chronic illness, who was previously approved for SSI benefits, and whose condition improved because of treatment paid for by those benefits, cannot be denied continuing benefits because of that improvement if denial of benefits would result in cessation of treatment and put the child at high risk of brain damage and death. This is not a rule that will give rise to “unlimited claims for preventative benefits.” Maj. op. at 1007 (citation omitted). To the contrary, it will fulfill the purpose of SSI by helping a child from a low-income household survive a life-threatening illness.

To prevent E.T. IV from suffering brain damage and death, we should reverse the District Court’s decision and remand for reinstatement of E.T. TV’s SSI benefits.