James Payne v. Shirley S. Chater ( 1996 )

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No. 95-1405
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James Payne, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Shirley S. Chater, Commissioner *
of Social Security, * [UNPUBLISHED]
*
Defendant - Appellee. *
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Submitted: November 17, 1995
Filed: January 10, 1996
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Before McMILLIAN and LOKEN, Circuit Judges, and BOGUE,* District
Judge.
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PER CURIAM.
James Payne appeals the district court's1 order affirming the
Commissioner of Social Security's denial of Payne's application for
Social Security disability benefits, see 42 U.S.C. §§ 401 et seq.
We affirm.
Payne, now deceased, claimed that he became disabled on
October 5, 1990, due primarily to chronic obstructive pulmonary
disease ("COPD"), and also to back pain, bursitis in his elbows,
*The HONORABLE ANDREW W. BOGUE, United States District Judge
for the District of South Dakota, sitting by designation.
1
The HONORABLE JOSEPH E. STEVENS, JR., Chief Judge of the
United States District Court for the Western District of
Missouri.
hiatal hernia, angina, spastic colon, and hearing loss. Following
a hearing, the Commissioner's Administrative Law Judge ("ALJ")
found that Payne's impairments were severe but do not meet or equal
any listed in 20 C.F.R. Part 404, App. 1, Subp. P, Reg No. 4; that
his subjective complaints of pain and fatigue were not credible;
that he could perform his past relevant work in insurance sales and
also other light, semi-skilled work; and therefore that Payne was
not disabled. The Appeals Council denied review, the district
court ruled that substantial evidence supports the Commissioner's
decision, and Payne appealed.
On appeal, Payne primarily argues that the ALJ improperly
discredited Payne's subjective complaints of disabling shortness of
breath and fatigue caused by his COPD. We disagree. The ALJ
pointed to medical evidence that Payne's COPD was stable through
1992 and would have been at least somewhat reversible had he
stopped smoking, which he refused to do until 1992 despite years of
admonitions from his doctors. The ALJ also observed that Payne
needed to lie down after outings primarily because he refused his
doctor's advice to take a portable oxygen unit with him. See Stout
v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993) (controllable
impairment not a disability); Johnson v. Bowen, 866 F.2d 274, 275
(8th Cir. 1989) (failure to follow course of treatment may be
considered). Having reviewing the entire record, we conclude that
the ALJ properly applied the criteria of Polaski v. Heckler, 739
F.2d 1320 (8th Cir. 1984) (pain), and Jackson v. Bowen, 873 F.2d
1111 (8th Cir. 1989) (fatigue), in partially discrediting Payne's
subjective complaints.
Payne further argues that the ALJ's hypotheticals to the
vocational expert witness did not accurately reflect Payne's
impairments. It is not clear that the vocational expert's
testimony is even relevant given the finding that Payne is able to
perform past relevant work. In any event, the ALJ properly
included in his hypotheticals those impairments and subjective
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complaints he found credible. See Haynes v. Shalala, 26 F.3d 812,
815 (8th Cir. 1994).
We agree with the district court that the ALJ's decision is
supported by substantial evidence on the record as a whole. House
v. Shalala, 34 F.3d 691, 694 (8th Cir. 1994); 42 U.S.C. § 405(g).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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