*Effective March 31, 1995, the functions of the Secretary of

Health and Human Services in social security cases were transferred

to the Commissioner of Social Security. P.L. No. 103-296.

Pursuant to Fed. R. App. P. 43(c), Shirley S. Chater, Commissioner

of Social Security, is substituted as the appellee in this action.

___________

No. 95-1279

___________

Ruth A. Baumgarten, *

*

Appellant, * Appeal from the United States

* District Court for the

v. * District of North Dakota.

*

Shirley S. Chater, Commissioner *

of Social Security,* *

*

Appellee. *

___________

 Submitted: October 18, 1995

 Filed: January 30, 1996

___________

Before BOWMAN, FLOYD R. GIBSON, and WOLLMAN, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

Ruth Baumgarten filed an application for Title II disability

insurance benefits on October 30, 1992, which was denied, both in

November 1992, and upon reconsideration in January 1993.

Subsequently, a hearing was held before an administrative law judge

(ALJ) who found that Baumgarten was not disabled within the meaning

of the Social Security Act. The Appeals Council denied review and

the district court granted summary judgment affirming the denial of

benefits. Because we find that the ALJ's decision discounting

Baumgarten's pain was based on an inaccurate reading of the record,

we reverse and remand for further proceedings.
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I.

Ruth Baumgarten is a fifty-three-year-old woman who has an

eighth-grade education and has completed her GED. She has worked

as a waitress, but her most recent employment, from 1980 until May

1991, was with Farmer's Union Oil. She began working at Farmer's

Union as a bookkeeper, but because of her lack of education she was

moved into retail sales, with additional duties stocking shelves

and pumping gas. While moving a cart of oil cans in 1989,

Baumgarten fell and injured her back. She sought treatment for

back pain, leg pain, and headaches resulting from her injury. She

continued working until May 1991 when, according to her testimony,

she quit because she could no longer manage the heavy lifting

involved in her job.

At the hearing before the ALJ, Baumgarten testified that on a

good day her pain is at a level six or seven on a scale of one to

ten, and on a bad day her pain is at a level nine. She estimated

that she has four to five good days per month. Baumgarten's

husband testified that Baumgarten's pain appeared to be severe and

that her disposition had changed since her pain began. According

to Baumgarten's testimony, weekly chiropractic treatments afford

partial, temporary relief, and in addition Baumgarten takes twelve

to twenty-four Tylenol per day and soaks in a hot bath two or three

times a week to relieve her pain.

The ALJ, following the five-step analysis set out in 20 C.F.R.

§§ 404.1520 and 416.920, concluded that Baumgarten's impairments

did not rise to the level of severity required to meet disability

status under the Act, but that her pain did prevent her from

returning to her past relevant work. Moreover, the ALJ conceded

that if Baumgarten's pain were as severe as she claimed, she could

not perform any work. After discounting her pain, however, the ALJ

determined that Baumgarten is capable of light work and that there

are significant numbers of jobs in the national economy that she
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can perform, such as general office clerk, hotel desk clerk and

cashier. 

Baumgarten claims that the ALJ improperly discounted her

subjective claims of pain and did not properly shift the burden to

the Commissioner to prove that there are jobs that Baumgarten is

capable of performing.

II.

A social-security claimant bears the burden of proving

disability. Clark v. Shalala, 28 F.3d 828, 830 (8th Cir. 1994).

If, however, a claimant demonstrates that she is unable to return

to her past work, the burden shifts to the Commissioner to show

that work exists in the national economy that the claimant can

perform. Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992).

We must affirm the district court's judgment if there exists

substantial evidence on the record as a whole supporting the ALJ's

determinations. Metz v. Shalala, 49 F.3d 374, 376 (8th Cir. 1995).

Substantial evidence is "such relevant evidence as a reasonable

mind might find adequate to support a conclusion." Smith v.

Shalala, 31 F.3d 715, 717 (8th Cir. 1994). After reviewing the

Commissioner's decision under this standard, we must remand for a

re-evaluation of the record and further proceedings consistent

therewith.

First, we consider Baumgarten's argument that the ALJ

improperly discredited her subjective complaints of pain. Using

the guidelines set forth in Polaski v. Heckler, 739 F.2d 1320, 1322

(8th Cir. 1984), the ALJ determined that Baumgarten's pain was less

severe than she claimed. Polaski requires the ALJ to consider:

(1) the claimant's daily activities; (2) the duration, frequency

and intensity of the pain; (3) dosage, effectiveness, and side

effects of medication; (4) precipitating and aggravating factors;

and (5) functional restrictions. Hall v. Chater, 62 F.3d 220, 223
-4-

(8th Cir. 1995). 

Applying these factors, the ALJ pointed to inconsistencies in

the record that detract from the credibility of Baumgarten's

complaints of pain. After a careful examination of the record, we

find the ALJ's rationale to be partially flawed. Several of the

alleged inconsistencies relied on by the ALJ are not supported by

the record. These discrepancies undermine the ALJ's ultimate

conclusion that Baumgarten's pain is less severe than she claims.

First, the ALJ asserted that Baumgarten's alleged swelling of

her fingers was not supported by medical evidence and was never

presented to any examining physician. The record is to the

contrary. In reports dated April 24, 1991 and February 12, 1992,

Dr. Martire, one of Baumgarten's physicians, noted the problem of

her swollen fingers.

The ALJ next stated that upon examination by Dr. Martire,

Baumgarten reported no difficulty staying asleep, although at other

points in the record she claims disturbed sleep. In contrast, we

find the record to show that Baumgarten consistently complained to

Dr. Martire as well as to other medical personnel that she had

difficulty sleeping. For example, on January 28, 1992, Dr. Martire

noted that Baumgarten "can't sleep" and on February 25, 1992, that

she had trouble falling asleep because of the pain and that she

awoke because of the pain. In addition, a physical therapist noted

that Baumgarten "reports maximum 5-6 hours of sleep per night."

Dr. Martire prescribed Elavil, not only to relieve pain but for its

"sleep effect." Although the fact that Baumgarten ceased taking

Elavil, a medication prescribed in part to help her sleep, may

provide some evidence that Baumgarten's difficulty sleeping had

either lessened or was not as severe as she claimed, the record

does not support the ALJ's conclusion that Baumgarten's testimony

concerning difficulty sleeping is inconsistent with her past

medical complaints.
-5-

The ALJ discredited Baumgarten's testimony that she suffered

from "constant" headaches by stating that she never sought

treatment specifically for headaches and that a progress note of

June 1992 shows no headache complaints, and one dated October 1992

specifically notes that she denied headaches. The record belies

the statement that Baumgarten never sought treatment for headaches.

Dr. Martire noted headaches as one of Baumgarten's complaints

throughout his records. Moreover, although the statements denying

headaches are in the record, we note that the doctor's reports

referred to are those of her oncologist, who was examining

Baumgarten to determine whether her breast cancer had recurred.

Baumgarten's claim that she recognized that the oncologist was not

the proper physician to treat headaches that she knew to be related

to her back injury is plausible. The ALJ's misstatements and his

failure to distinguish between complaints made to an oncologist and

those made to the physicians specifically treating Baumgarten's

back injury undermine his conclusion that Baumgarten's complaints

were not credible. 

For further support of his decision to discount Baumgarten's

pain, the ALJ pointed to the fact that Baumgarten had discontinued

use of her prescribed pain medications, Elavil and Orudis. We have

held that a claimant's failure to take substantial pain medication

is "inconsistent with subjective complaints of disabling pain."

Haynes v. Shalala, 26 F.3d 812, 814 (8th Cir. 1994). The ALJ's

analysis, however, does not stop at this point. Rather, he goes on

to make the inaccurate assertion that "there is no reasonable

explanation as to why she quit taking prescribed medication." To

the contrary, Baumgarten did explain that she ceased taking

prescription drugs because they afforded no more pain relief than

Tylenol. Again, the ALJ's erroneous assertion casts doubt on his

ultimate conclusion.

 

In discrediting Baumgarten's pain, the ALJ also pointed to her

daily activities: making her bed, preparing food, performing light
-6-

housecleaning, grocery shopping, knitting, crocheting, and visiting

friends. The ALJ asserts that these activities "demonstrate an

ability to meet the physical demands of work which does not involve

prolonged sitting or standing." We have repeatedly held, however,

that "the ability to do activities such as light housework and

visiting with friends provides little or no support for the finding

that a claimant can perform full-time competitive work." Hogg v.

Shalala, 45 F.3d 276, 278 (8th Cir. 1995) (citing Harris v.

Secretary, 959 F.2d 723, 726 (8th Cir. 1992) and Thomas v.

Sullivan, 876 F.2d 666, 669 (8th Cir. 1989)). To establish

disability, Baumgarten need not prove that her pain precludes all

productive activity and confines her to life in front of the

television. See Thomas v. Sullivan, 876 F. 2d 666, 669 (8th Cir.

1989). 

 

In addition to Baumgarten's regular daily activities, the ALJ

referred to several specific activities that appear inconsistent

with her described limitations and pain. Specifically, the ALJ

mentioned that in July 1991 Baumgarten pulled weeds for two hours;

in September 1991 she painted a ceiling; in November 1991 she

shoveled snow; in June 1992 she mowed her lawn; and in September

1992 she again pulled weeds. Because several months separated each

attempt at these strenuous activities, and after each activity

Baumgarten went to the doctor complaining of pain, these isolated

attempts shed more light on Baumgarten's perseverance than on the

credibility of her complaints of pain. 

The ALJ's findings are not without some support in the record.

When seen by Dr. Martire in February 1992, Baumgarten described her

back pain as "moderate," and she acknowledged that she could have

continued working as a sales person and pumping gas had it not been

for the fact that she was required to lift fifty pounds. Assuming

that as of February 1992 Baumgarten could have continued working at

a job that did not require heavy lifting, then it is likely that

she could have engaged in that work at the time of her application
-7-

for benefits, given the lack of evidence that her pain worsened

after she stopped working. Several reports, in fact, indicate that

her condition improved somewhat after that time. For example, on

July 23, 1992, the doctor noted her condition as "pretty good." On

October 8, 1992, she is reportedly "better." When viewed in the

light of several inconsistencies in the ALJ's reading of the

record, however, this evidence is insufficient to support the ALJ's

decision to discount Baumgarten's subjective complaints of pain.

Because the ALJ concedes that if Baumgarten's pain is as severe as

she claims, she is incapable of working, we must remand for

reconsideration of Baumgarten's credibility in light of the abovenoted clarifications of the record. 

III.

Because the Commissioner concedes that Baumgarten cannot

return to her past work, she bears the burden of showing that there

are other jobs Baumgarten can perform. Montgomery v. Chater, 69

F.3d 273, 275 (8th Cir. 1995). The vocational expert who testified

at the hearing was asked to determine the job possibilities of an

individual with Baumgarten's vocational profile. Because the

hypothetical question posed to the vocational expert was

inextricably intertwined with the ALJ's credibility findings,

perforce there must be posed to a vocational expert hypothetical

questions based on findings entered after a consideration of the

evidence that the ALJ failed to take into account. See Teague v.

Railroad Retirement Bd., 982 F.2d 303, 304 (8th Cir. 1992). 

The judgment is reversed, and the case is remanded to the

Commissioner for a new hearing.

A true copy.

Attest:

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