Hershel Jones, Jr. v. Shirley Chater

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-1112
___________
Hershel Jones, Jr., *
*
Appellant, * Appeal from the United States
* District Court for the Eastern
v. * District of Arkansas.
*
John J. Callahan1, Acting *
Commissioner of the Social *
Security Administration, *
*
Appellee.

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Submitted: June 13, 1997
Filed: September 9, 1997
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Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________

BOWMAN, Circuit Judge.

1
John J. Callahan was appointed to serve as the Acting Commissioner of the
Social Security Administration effective March 1, 1997. He has been substituted as the
appellee in place of former Commissioner, Shirley S. Chater, pursuant to Fed. R. App.
P. 43(c)(1).
 Hershel Jones Jr. filed applications for social security disability
insurance benefits and supplemental security income (SSI) benefits under
Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-
1383d (1994) in June 1993, alleging disability due to psychological
problems and back pain. The Social Security Administration denied his
applications initially and on reconsideration. Jones then sought a hearing
before an administrative law judge (ALJ) which was held on July 11, 1994.

At the time of the administrative hearing, Jones was thirty-eight
years old, had a ninth-grade education, and had past relevant work
experience as a construction worker and bricklayer. Jones testified at the
hearing that he injured his back attempting to lift a large rock with a co-
worker; he experienced severe lower back pain with strenuous activity; he
ranked his nonexertional pain a "three" on a scale of one to ten; and that
he has been prescribed medication that is somewhat effective in alleviating
his pain. Jones further testified that he lives with his wife, who does
the cooking and most household chores; he drives to the grocery store, to
doctor's appointments, and to visit family; he attempts to help with chores
around the house; he is able to watch television while alternating between
lying on the couch and sitting upright in a chair; he is able to walk a few
blocks without sitting down and resting; he is able to bend over slowly;
he is able to sit in a chair for an hour or two before he must lie down;
and that he is able to sleep soundly for three or four hours at night.
Jones also testified that his inability to work is "very depressing" and
has affected his "nerves" and his "whole daily program." Tr. of Admin.
Hr'g at 17.

The ALJ determined that Jones was not disabled under the relevant
provisions of the Social Security Act and denied his applications for
benefits. The ALJ found that while the medical evidence established that
Jones had severe back problems, his subjective complaints of pain were not
fully credible and he did not suffer from a listed physical or severe mental
impairment. See 20 C.F.R. pt. 404 subpt. P app. 1 (1997). Although Jones
was found to have significant limitations in his capacity for heavy

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lifting and carrying and for excessive bending or stooping such that he is
unable to perform his past relevant work, he retains the residual functional
capacity to perform a full range of light work. Using the Medical
Vocational Guidelines, the ALJ concluded that Jones was not disabled.

Following the ALJ's adverse decision, Jones requested review by the
Appeals Council. The Appeals Council declined review, effectively adopting
the ALJ's determination as the Commissioner's final decision and prompting
Jones to seek judicial review in district court. The District Court2
granted the Commissioner's motion for summary judgment, finding that the
Commissioner's decision denying Jones benefits was supported by substantial
evidence. On appeal, Jones argues that the record as a whole does not
support the ALJ's finding that his subjective complaints of pain are not
fully credible; that the ALJ did not properly take into account his
psychological impairments; and that the District Court erred in refusing to
remand his case for consideration of additional psychiatric evidence.

I.

We must affirm the District Court's decision if there is "substantial
evidence on the record as a whole" to support the ALJ's determinations.
Keller v. Shalala, 26 F.3d 856, 858 (8th Cir. 1994). "Substantial evidence
is relevant evidence that a reasonable person might accept as adequate to
support a conclusion." Hutsell v. Sullivan, 892 F.2d 747, 749 (8th Cir.
1989). We must do more than merely search the record for evidence
supporting the ALJ's decision; we must also take into account "whatever in
the record fairly detracts from [the] weight" of the evidence supporting
that decision. Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). The
decision will be affirmed,

2
The Honorable H. David Young, United States Magistrate Judge for the Eastern
District of Arkansas, to whom the case was referred for final disposition by consent of
the parties pursuant to 28 U.S.C. § 636(c) (1994).

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however, "where the evidence as a whole can support either outcome."
Chamberlain v. Shalala, 47 F.3d 1489, 1493 (8th Cir. 1995).

The Social Security Act defines "disability" as the inability "to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment" lasting for at least twelve
months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (1994). The burden of
showing a medically determinable impairment is on the claimant. See §
423(d)(5)(A) ("An individual shall not be considered to be under a
disability unless he furnishes such medical and other evidence of the
existence thereof as the Commissioner . . . may require.").

We first consider Jones's argument that the ALJ improperly discredited
his subjective complaints of pain. When an individual's subjective
complaints of pain are not fully supported by the medical evidence in the
record, the ALJ may not, based solely on his personal observations, reject
the complaints as incredible. See, e.g., Sullins v. Shalala, 25 F.3d 601,
603 (8th Cir. 1994), cert. denied, 513 U.S. 1076 (1995). Rather, the ALJ
must consider all the evidence relating to the claimant's subjective
complaints, including his previous work record, and observations by third
parties and treating and examining physicians relating to his daily
activities; the duration, frequency and intensity of his pain; precipitating
and aggravating factors; dosage, effectiveness and side effects of
medication; and functional restrictions. See Polaski v. Heckler, 751 F.2d
943, 948-50 (8th Cir. 1984) (Polaski I).3 "[S]uch complaints may be
discounted if there are inconsistencies in the evidence as a whole."
Sullins, 25 F.3d at 603. If, based on the Polaski I factors, the ALJ
determines that the

3
The United States Supreme Court vacated the decision in Polaski I and
remanded for reconsideration in light of Bowen v. City of New York, 476 U.S. 467
(1986). See Bowen v. Polaski, 476 U.S. 1167 (1986). On remand, this Court held that
amendment of the original decision was not required, see Polaski v. Heckler, 804 F.2d
456, 457 (8th Cir. 1986) (Polaski II), effectively reinstating Polaski I.

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claimant's subjective complaints are not fully credible, he must make an
express credibility finding and give his reasons for discrediting the
claimant's testimony. See Hall v. Chater, 62 F.3d 220, 223 (8th Cir. 1995);
Chamberlain, 47 F.3d at 1494 ("Where conflicting allegations and claims
exist, credibility findings are for the ALJ to make."). "We will not
disturb the decision of an ALJ who seriously considers, but for good reasons
explicitly discredits, a claimant's testimony of disabling pain." Browning
v. Sullivan, 958 F.2d 817, 821 (8th Cir. 1992).

The District Court concluded that the evidence as a whole supported
the ALJ's finding that Jones's subjective complaints were not fully
credible. We agree. Although an ALJ may not disregard a claimant's
subjective complaints of pain merely because the medical evidence is
inconsistent with the claimant's description of the extent and severity of
his pain, the ALJ may discount these complaints if there are inconsistencies
in the evidence as a whole. Applying the Polaski I criteria, the ALJ
concluded that the objective medical evidence of Jones's physiological
impairments, coupled with evidence that Jones exaggerated the severity of
his symptoms, dictated a finding that Jones's testimony was not fully
credible. See Jenkins v. Bowen, 861 F.2d 1083, 1086 (8th Cir. 1988) (noting
that exaggeration of symptoms is a factor to be weighed in evaluating
subjective complaints of pain). We find no error in this assessment. Jones
was prescribed a conservative course of treatment, including a limited
dosage of medication which Jones testified provided some relief from pain.
Jones's treating physician indicated that he would be capable of resuming
work, with some limitations, in December 1993. At Jones's request, a
psychiatric consultation was conducted in March 1994. After one interview,
the evaluating psychiatrist concluded that Jones suffered from dysthymia,
somatoform pain disorder,4 passive aggressive personality disorder, and
failed chronic low back syndrome with chronic pain; recommended a

4
A somatoform disorder involves "[p]hysical symptoms for which there are no
demonstrable organic findings or known physiological mechanisms." 20 C.F.R. pt. 404
subpt. P app. 1 pt. A § 12.07 (1997).

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battery of psychological tests and "[r]eferral for psychological treatment
for a brief period of time;" and commented that he did not feel Jones was
capable of regular work. Admin. Tr. at 199. Jones did not submit
documentation at the administrative hearing that these recommended sessions
actually occurred or that long-term psychiatric treatment was prescribed.
Jones's treating physician reported in June 1994, however, that despite the
psychiatric diagnosis,

I have difficulty in giving restrictions on Mr. Jones because of
the discrepancies in his appearance in the examining room and
those outside when he did not know that he was observed. He
does have restrictions but I don't think his restrictions are as
great as he is trying to make us believe.

Id. at 196. The ALJ, faced with this inconsistent evidence of the extent
and severity of Jones's pain, found his complaints not fully credible. This
finding is supported by the record as a whole, particularly in light of the
fact that the ALJ apparently credited Jones's treating physician, who is
presumably more familiar with Jones's medical history, rather than an
evaluating physician who saw Jones for only one interview. See Henderson
v. Sullivan, 930 F.2d 19, 21 (8th Cir. 1991) ("[T]he report of a consulting
physician who examined the claimant only once does not constitute
'substantial evidence' upon the record as a whole, especially when
contradicted by the claimant's treating physician."). The ALJ properly
applied the Polaski I factors in reaching his conclusion that Jones's
subjective complaints of pain were not fully credible.

Jones attributes the discrepancies between the objective medical
evidence and his alleged impairments to a somatoform disorder, a "mental
disturbance [that] causes [him] to believe that [his] physical ailments are
more serious than the clinical data would suggest." Easter v. Bowen, 867
F.2d 1128, 1129 (8th Cir. 1989). In cases involving somatoform disorder,
an ALJ may not dismiss a claimant's subjective experiences without an
express finding on the record that his testimony is not credible.

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See id. at 1131; Metz v. Shalala, 49 F.3d 374, 377 (8th Cir. 1995). Here,
however, the ALJ made a specific finding that Jones's testimony was not
fully credible owing not only to the absence of objective medical evidence
to support Jones's allegations of disabling pain, but also owing to the
absence of medically ordered restrictions on Jones's activity commensurate
with his complaints of pain, and the incidents of exaggeration reported by
Jones's treating physician. The ALJ concluded that "the symptomatology
suffered by the claimant is not of a duration, frequency or intensity as to
be disabling nor would it preclude the performance of a full range of light
work." Decision of ALJ at 5 (Feb. 4, 1995). We agree with the District
Court that this conclusion is supported by substantial evidence on the
record as a whole, and we will not reverse the ALJ "simply because some
evidence may support the opposite conclusion." Mitchell v. Shalala, 25 F.3d
712, 714 (8th Cir. 1994).

II.

We next address Jones's contention that the ALJ did not properly
consider his psychological impairments. This argument is belied by the
record. The ALJ complied with the process for evaluating mental impairments
as described in the applicable regulations, see 20 C.F.R. § 404.1520a
(1997);5 concluded that Jones did not have a

5
The ALJ must first record pertinent signs, symptoms, and findings to determine
if a mental impairment exists. See 20 C.F.R. § 404.1520a(b)(1). This data is gleaned
from a mental status exam or a psychiatric history, and must be established by medical
evidence. Id. If a mental impairment is found, the ALJ must analyze whether certain
medical findings relevant to a claimant's ability to work are present or absent. See id.
§ 404.1520a(b)(2). The ALJ must then rate the degree of functional loss resulting from
the impairment in four areas deemed essential to work: activities of daily living; social
functioning; concentration, persistence or pace; and deterioration or decompensation
in work or work-like settings. See id. § 404.1520a(b)(3). The degree of functional loss
is rated and, if the mental impairment is severe, the ALJ must determine whether it
meets or equals a listed mental disorder. See id. § 404.1520a(c)(2). If the claimant has
a severe impairment, but the impairment neither meets or equals the listing, then the
ALJ must conduct a residual functional capacity assessment. See id.
§ 404.1520a(c)(3). The regulations also require that the ALJ complete and attach to
his decision a document outlining compliance with the above steps, see id.
§ 404.1520a(d), a procedure which was followed in this case. See Decision of ALJ
("Psychiatric Technique Review Form" attached).

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severe mental impairment; and found that Jones retained the residual
functional capacity to perform the full range of light work.

In addition to Jones's testimony, the ALJ was presented with medical
records compiled by Jones's treating physician and with a consulting
physician's psychiatric evaluation and diagnosis. The ALJ noted that the
evidence as a whole failed to establish that Jones's daily activities were
restricted due to emotional causes, or that there was a significant deficit
in Jones's ability to function socially. Moreover, the ALJ found that Jones
was not undergoing any regular treatment by a mental health professional nor
was he regularly taking medication for emotional symptoms. As required by
the relevant regulations, the ALJ, after acknowledging that some evidence
of a mental impairment was presented, specifically noted the absence of
substantial evidence showing "any significant level of deficiencies of
concentration, persistence or pace; or any actual episodes of deterioration
or decompensation in work settings." Decision of ALJ at 3. The ALJ
concluded that "[t]he chief manifestation of his emotional condition appears
to be his attempt to exaggerate his symptoms for secondary gain purposes."
Id. Specifically noting that Jones "does not have any emotional or mental
disorder which would significantly affect his ability to work," the ALJ
ultimately concluded that Jones does not have a severe mental impairment
within the regulations and that Jones retains the residual functional
capacity for a full range of light work. Decision of ALJ at 3. While Jones
may experience some difficulties associated with his mental or emotional
health, the ALJ, after considering all relevant evidence, properly concluded
that these difficulties do not rise to the level of a severe mental
impairment as defined by the pertinent regulations. We agree with the
District

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Court that the ALJ's conclusion is supported by substantial evidence on the
record as a whole.

Upon review of the record as a whole, we conclude that substantial
evidence supports the Commissioner's decision to deny Jones Social Security
and SSI benefits. The ALJ found that Jones's subjective complaints of pain
were not credible and that Jones did not suffer from a severe mental
impairment, findings that are supported by the record. In addition to the
medical evidence presented, Jones also provided subjective testimony as to
how his impairments affected his daily routine. The ALJ, making a
credibility determination that he was entitled to make, found Jones's
testimony not fully credible. See Benskin v. Bowen, 830 F.2d 878, 882 (8th
Cir. 1987). The ALJ did not dispute that Jones was in some pain, but the
question is not whether Jones suffers any pain; it is whether he is fully
credible when he claims that his back hurts so much that it prevents him
from engaging in gainful activity. See id. at 883. We are satisfied that
the ALJ's determination that Jones's complaints of pain were not fully
credible and that Jones does not suffer from a severe mental impairment are
supported by substantial evidence on the record as a whole.

III.

Finally, we consider Jones's contention that the District Court erred
in refusing to remand his case to the ALJ for consideration of additional
medical evidence pursuant to 42 U.S.C. § 405(g) (1994). Section 405(g)
generally precludes consideration on review of evidence outside the record
before the Commissioner during the administrative proceedings. See Delrosa
v. Sullivan, 922 F.2d 480, 483 (8th Cir. 1991). Remand is appropriate only
upon a showing by the claimant "that there is new evidence which is material
and that there is good cause for the failure to incorporate such evidence
into the record in a prior proceeding." 42 U.S.C. § 405(g); see also
Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991). To be considered
material, the new evidence must be "non-cumulative, relevant, and probative
of the claimant's

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condition for the time period for which benefits were denied." See Woolf
v. Shalala, 3 F.3d 1210, 1215 (8th Cir. 1993). Furthermore, it must be
reasonably likely that the Commissioner's consideration of this new evidence
would have resulted in an award of benefits. See id.

An implicit requirement is that the new evidence pertain to the time
period for which benefits are sought, and that it not concern later-acquired
disabilities or subsequent deterioration of a previously non-disabling
condition. See Goad v. Shalala, 7 F.3d 1397, 1398 (8th Cir. 1993) (per
curiam); Thomas v. Sullivan, 928 F.2d at 260-61. Additional evidence
showing a deterioration in a claimant's condition significantly after the
date of the Commissioner's final decision is not a material basis for
remand, although it may be grounds for a new application for benefits.
Here, Jones sought remand to the ALJ for consideration of a psychiatric
report dated August 5, 1996, eight months after the Appeals Council adopted
the ALJ's decision as its final determination. The District Court, in
denying Jones's request for remand, found that the evidence is not material,
noting that it "deals with a single incident occurring some time after the
Commissioner's decision" and that it "adds little to the record." Jones v.
Chater, No. J-C-96-14, order at 1-2 (E.D. Ark. Oct. 24, 1996). We agree
with the District Court that the new evidence Jones sought to introduce on
remand is not material because it does not relate to the time period for
which benefits were denied.

IV.

For the foregoing reasons, the judgment of the District Court is
affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT

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