Gregory J. Rosenow v. Kenneth S. Apfel ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-1504
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Gregory J. Rosenow, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Kenneth S. Apfel, Commissioner of the *
Social Security Administration, * [UNPUBLISHED]
*
Appellee. *
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Submitted: May 6, 1999
Filed: May 12, 1999
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Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
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PER CURIAM.
Gregory J. Rosenow appeals from the district court&s1 grant of summary
judgment in favor of the Social Security Commissioner, upholding the decision to deny
Rosenow&s application for disability insurance benefits. Rosenow had alleged he could
not work primarily because of back, neck, shoulder, leg, and groin pain, numbness in
his fingers, headaches, and depression. For reversal, he challenges the credibility
1
The HONORABLE RICHARD H. KYLE, United States District Judge for the
District of Minnesota, adopting the report and recommendations of the HONORABLE
ARTHUR J. BOYLAN, United States Magistrate Judge for the District of Minnesota.
findings and residual functional capacity assessment made by the administrative law
judge (ALJ) after the original and supplemental hearings. Rosenow also argues the
Commissioner did not meet his burden of identifying a significant number of jobs
Rosenow could perform.
Having carefully reviewed the record, taking into consideration evidence in the
record that supports as well as detracts from the Commissioner’s final decision, we
conclude the district court properly granted summary judgment in favor of the
Commissioner. See Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992) (standard
of review). “[I]t is the statutory duty of the ALJ, in the first instance, to assess the
credibility of the claimant,” Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992), and
we believe the ALJ’s findings were in conformity with Polaski v. Heckler, 739 F.2d
1320, 1322 (8th Cir. 1984). In addition, the ALJ properly concluded that, to the extent
Rosenow’s back pain, headaches, and depression were controlled by medication, those
impairments were not disabling, see Stout v. Shalala, 988 F.2d 853, 855 (8th Cir.
1993); and even if the evidence would support a contrary conclusion, that does not
establish a basis for reversal, see Robinson, 956 F.2d at 838 (appellate court must
affirm if it is possible to draw two inconsistent positions from evidence and one of
those positions represents agency’s findings).
We also conclude that the record supports the ALJ’s assessment of Rosenow’s
residual functional capacity, that the hypothetical question posed to the vocational
expert at the supplemental hearing fairly encompassed Rosenow’s limitations, and that
the ALJ could therefore rely on the vocational expert’s testimony in concluding
Rosenow was capable of gainful employment. See Roe v. Chater, 92 F.3d 672, 675
(8th Cir. 1996) (vocational expert&s testimony based on properly phrased hypothetical
question constitutes substantial evidence); Davis v. Shalala, 31 F.3d 753, 755 (8th Cir.
1994) (hypothetical question is sufficient if it sets forth impairments ALJ accepted as
true).
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Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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