McClees v. Shalala

• Citation: 2 F.3d 301
• Decision Date: 23 August 1993
• Docket Number: No. 92-1382,92-1382
• Parties: , Unempl.Ins.Rep. CCH 17464A James McCLEES, Appellant, v. Donna E. SHALALA, 1 Secretary of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 301

2 F.3d 301

42 Soc.Sec.Rep.Ser. 37, Unempl.Ins.Rep. CCH 17464A

James McCLEES, Appellant, v. Donna E. SHALALA, ¹ Secretary of Health and Human

Services, Appellee.

No. 92-1382.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 13, 1992.

Decided Aug. 23, 1993.

Marti D. Nerenstone, Council Bluffs, IA, argued for appellant.

Janet Braggs, Kansas City, MO, argued for appellee.

Before RICHARD S. ARNOLD and LOKEN Circuit Judges, and ROSENBAUM, ^* District Judge.

ROSENBAUM, District Judge.

James McClees appeals from an order of the district court, ² affirming the Secretary's decision to deny him Social Security Disability Benefits under Title II of the Social Security Act. 42 U.S.C. Sec. 401, et seq. McClees argues that the district court erred in affirming the Secretary, based upon his assertion that the Administrative Law Judge's (ALJ) decision was not supported by substantial evidence on the record as a whole. We affirm.

This is McClees's second appeal to this Court. In McClees v. Sullivan, 879 F.2d 451 (8th Cir.1989) (McClees I ), we reversed the Secretary's decision denying appellant Supplemental Security Income and Social Security disability benefits, but we did not direct judgment in favor of McClees. Instead, we remanded for a de novo administrative hearing because the ALJ improperly considered a report which was tainted by unreliable hearsay in discrediting McClees's subjective complaints of pain and functional limitations. Id. at 454.

On remand, the ALJ awarded Title XVI disability benefits, retroactive to September 27, 1985, the date of appellant's original application. The ALJ, however, denied appellant's application for Title II benefits, finding that appellant was not under a "disability" at anytime when he met the earnings requirement. ³ McClees filed an appeal in federal district court. By order, dated December 17, 1991, the judge affirmed the Secretary's denial of benefits. Appellant seeks review of the denial of Title II benefits.

Because the appellant's medical history is set forth in detail in our previous opinion, see McClees I, supra at 451, we turn directly to a review of the Secretary's decision on remand. Our task is limited to a determination of whether the Secretary's decision is supported by substantial evidence in the record as a whole. Onstead v. Sullivan, 962 F.2d 803, 804 (8th Cir.1992). "Substantial evidence is that which a reasonable mind might accept as adequate to support the Secretary's conclusion." Id. (quoting Whitehouse v. Sullivan, 949 F.2d 1005, 1007 (8th Cir.1991)).

The claimant bears the burden of proving a medically determinable impairment or impairments which prevented him from performing his past relevant work. Pickner v. Sullivan, 985 F.2d 401, 403 (8th Cir.1993); 42 U.S.C. Sec. 423(d)(1). In this case, the Secretary concluded that appellant was not disabled because he was able to perform his past relevant work as a barber. Appellant contends that the ALJ improperly applied the Polaski factors in rejecting appellant's subjective complaints of pain and functional restrictions. In Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984), this Court held that a lack of objective medical evidence to support the claimant's subjective complaints is only one factor to be considered in evaluating the claimant's testimony. In addition,

The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as: (1) the claimant's daily activities; (2) the duration, frequency and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; (5) functional restrictions.

Id. at 1322. Appellant contends that the ALJ erred in rejecting his subjective complaints of pain. In his view, the ALJ improperly relied upon isolated statements from the medical evidence to discredit his testimony. We find that the Secretary's decision--that McClees is able to perform his past relevant work as a barber--is supported by substantial evidence.

The ALJ evaluated the limited medical evidence and appellant's subjective complaints. Using this information, the ALJ concluded that appellant's allegations regarding his inability to work prior to June 30, 1980, were not credible. The ALJ noted that the only pertinent medical evidence relating to the appellant's medical condition before June 30, 1980, was a discharge summary from the University of Nebraska Medical Center. This summary showed that the appellant had been treated for a skinned elbow. The report then noted the appellant's severe scoliosis and chest deformity, but indicated that McClees had been "fairly asymptomatic." The report indicated that upon physical examination, McClees's extremities revealed good strength and no evidence of motor dysfunction, muscle atrophy, muscle spasm, abnormal reflex changes, or sensory deficits.

The ALJ noted the inconsistency between this objective medical evidence and the appellant's testimony that he was in pain at that time. The ALJ noted a similar inconsistency between appellant's subjective complaints of intractable pain, and a medical report dated November 22, 1980. The appellant had been treated for a broken knee and, when the treating physician noted his chest deformity, McClees reported that he had been having "no problems with it."

The ALJ also noted the contrast between the appellant's failure to seek medical treatment or therapy, and his claims of intractable low back pain and shortness of breath. The ALJ properly considered claimant's failure to seek treatment in discrediting McClees's subjective complaints of pain. Walker v. Shalala, 993 F.2d 630, 631 (8th Cir.1993); Tsarelka v. Secretary of HHS, 842 F.2d 529, 534 (1st Cir.1988). Appellant's failure to seek treatment, in conjunction with the 1976 and 1980 medical evidence indicating that McClees...