Nancy E. CLARKE, Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Appellee , 843 F.2d 271 ( 1988 )

FAGG, Circuit Judge.

The Secretary of Health and Human Services denied Nancy E. Clarke's claim for supplemental security income benefits under the Social Security Act, 42 U.S.C. §§ 1381, 1381a. On review of the Secretary’s final decision, the district court affirmed. Clarke now appeals to this court and we also affirm.

Clarke is forty-four years old. She has completed the eleventh grade and functions in the low-normal range of intelligence. Clarke is obese, smokes cigarettes, and complains of various health problems, including difficulty with her balance and pain in the bottoms of both feet. In addition, Clarke maintains a hostile attitude that is unrelated to her claimed impairments. Despite these apparent long-standing problems, Clarke has worked on the cleaning staff of a motel and as a laborer in a greenhouse. In 1974 Clarke quit her greenhouse job for reasons unrelated to her current claim for benefits. She has been unemployed since that time.

The Secretary initially denied Clarke’s claim for benefits. Clarke then sought judicial review, and the district court remanded the case to the Secretary with instructions to conduct a supplemental hearing. After that hearing an administrative law judge (AU) entered a recommended decision. He found Clarke’s claim that she was physically unable to work inconsistent with the record. Nevertheless, the AU found Clarke incapable of returning to her past relevant work because of her problem with her feet. Clarke’s previous jobs constituted medium work, and the AU determined that Clarke was now capable of only sedentary work. After considering the testimony of a vocational expert about the availability of jobs at this level, the AU found Clarke disabled and thus entitled to benefits. In doing so, however, the AU noted that Clarke’s “overriding problem appears to be [her] hostile and belligerent attitude.”

The Appeals Council, acting on behalf of the Secretary, rendered a final agency decision in which the Council declined to adopt the AU’s disability determination. The Council did not challenge the AU’s credibility findings, but instead concluded that based on its analysis of the record Clarke was able to perform her past relevant work. Thus, Clarke failed to carry her burden of proof, see Conley v. Bowen, 781 F.2d 143, 146 (8th Cir.1986) (per curiam), and she was not entitled to benefits. The district court affirmed.

On review of the Secretary’s denial of benefits, we must determine whether that decision is supported by substantial evidence on the record as a whole. Steurer v. Bowen, 815 F.2d 1249, 1250 (8th Cir.1987); see 42 U.S.C. § 405(g). Because the Secretary acted here through the Appeals Council, we must defer to the Council’s decision, rather than the AU’s decision, “if substantial evidence exists to support it, whatever the result might have been if [we] were reviewing the ALJ’s decision directly.” Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.1984).

In assessing the substantiality of the evidence, we must consider evidence that detracts from the Council’s decision as well as evidence that supports it. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951). Here, the dissent’s approach is one-sided, that is, the dissent views the evidence only in the light most favorable to the claimant. Under the substantial evidence standard, however, we must view the entire record as a whole. See Steurer, 815 F.2d at 1250. Additionally, the substantial evidence standard “presupposes * * * a zone of choice within which the decisionmakers can go either way, without interference by the courts. An administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision.” Baker, 730 F.2d at 1150.

Here, the record contains, and the dissent fails to acknowledge, substantial evidence to support the Council’s decision. Despite her claimed limitations, Clarke’s daily activities are basically unrestricted. They include vacuuming, yard work, laundry, reading, watching television, and assisting Clarke’s mother with cleaning and cooking. Further, Clarke testified her foot problems existed before she began working at the greenhouse. Yet, Clarke did not seek any significant medical care for her feet until 1982. Medical notes made by Clarke’s podiatrist toward the end of her treatment reflect that “she was no longer having any complaints with respect to her feet.” Clarke’s complaints were resolved to a large extent by inserts in her shoes. In fact, Clarke testified that with inserts in her shoes she can stand for approximately four hours without difficulty.

In reaching its decision, the Council can weigh the evidence independently and make its own findings and conclusions. Oldham v. Secretary of Health & Human Serv., 718 F.2d 507, 510 (1st Cir.1983). Nevertheless, the Council’s decision must be subject to especially careful scrutiny if the Council rejects an ALJ’s credibility findings. Day v. Heckler, 781 F.2d 663, 665 (8th Cir.1986). That standard is inapplicable here, however, because the Council did not question the ALJ’s assessment of Clarke’s credibility. Rather, the Council accepted the ALJ’s determination that Clarke’s testimony was “generally credible” with regard to her “essentially unrestricted activities of daily living.” The Council also agreed with the AU when he found Clarke’s assertions that she was physically unable to work inconsistent with the record.

The Council did disagree with the AU’s finding that Clarke’s foot problems prevented her from performing her past relevant work. That finding, however, was not based on a credibility determination, but instead on a review of the underlying evidence. Thus, the Council viewed the record and interpreted the evidence differently. The Council was free to do so, see Razey v. Heckler, 785 F.2d 1426, 1431, amended, 794 F.2d 1348 (9th Cir.1986); Oldham, 718 F.2d at 510 n. 2, without triggering the especially careful scrutiny standard. In addition, the AU appeared to acknowlege there was room for disagreement when he stated that he had “given [Clarke] the benefit of absolutely every doubt whatsoever” and “that in all reality [Clarke’s] physical capabilities most likely far exceed work at [the sedentary] level of endeavor.”

Finally, counsel for Clarke on appeal, who was not counsel in the proceedings below, urges this court to consider an issue not raised before the district court. Clarke now contends the Appeals Council, in denying benefits, exceeded the scope of the district court’s prior remand order. We must reject counsel’s efforts to raise an issue for the first time on appeal as a basis for reversal. See Medtronic, Inc. v. Gibbons, 684 F.2d 565, 569 (8th Cir.1982); see also Waite v. Bowen, 819 F.2d 1356, 1360 n. 1 (7th Cir.1987).

As the dissent correctly observes, the district court remanded Clarke’s case to the Secretary “for further hearing and vocational expert testimony.” The decisions of the AU and Council that we have already discussed arose out of the remand proceedings. Significantly, when Clarke petitioned the district court to reopen her case, her request for judicial review was limited to the merits of the Council’s decision. Thus, on her return to the district court, Clarke knew the Council had decided she could perform her former work. Yet, Clarke failed to challenge the scope of the supplemental proceedings even though she knew the basis for the Council’s denial of benefits. Under these circumstances, we simply cannot agree with the dissent that the cards have been unfairly “reshuffled” against Clarke. The same district judge who entered the remand order also reviewed the supplemental proceedings and affirmed the Council’s decision. In doing so, the judge noted the Council “was not required to consider the vocational expert testimony” because the Council had found Clarke could perform her past relevant work. Although the Council’s decision was clear to all involved, adherence to the remand order was never questioned in the district court.

Based on a thorough review of the record, we conclude the Secretary’s decision denying benefits to Clarke is supported by substantial evidence on the record as a whole. Accordingly, we affirm the district court’s order upholding the Secretary’s decision.