### The Honorable Thomas M. Reavley, United States Circuit * 

### Judge for the Fifth Circuit, sitting by designation. The Honorable Joseph E. Stevens, Jr., United States 1 

### District Judge for the Western District of Missouri. _____________ No. 95-2639

_____________ Junior Ray Shelton, * * Plaintiff - Appellant, * Appeal from the United States * District Court for the v. * Western District of Missouri. * Shirley S. Chater, Commissioner * of the Social Security * Administration, * * Defendant - Appellee. *

_____________ Submitted: January 12, 1996 Filed: July 1, 1996

_____________ Before LOKEN, REAVLEY, and HANSEN, Circuit Judges. *

_____________ HANSEN, Circuit Judge. Junior Ray Shelton appeals from the district court's order affirming 1 the decision of the Commissioner of Social Security to deny disabilit y insurance benefits (D IB) and supplemental security income benefits (SSI). Shelton challenges anadministrative law judge's (ALJ) determination that although Shelton could not return to his past wo rk, he did not qualify for benef its because he was capable of performing work that exists i n significant numbers in the national economy. We affirm.

### 2 I.

In July 1 992, Shelton filed applications seeking DIB under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. , and SSI based o n disabilityunder Title XVI of the Act, 42 U.S.C. § 1381 et seq. Shelton alleged t he onset of disability as of June 15, 1992, based on hear t problems and pain in his hip, back, and shoulder. Shelton had suffered a he art attack on June 27, 1992, after which he underwent coronar y angioplasty. At Shelton's follow-up appointment, his doctor had determine d Shelton h ad "a very good prognosis, as far as his heart condition [wa] s
concern ed." (J.A. at 170.) The doctor had also noted that Shelton ha d suffered recurring pains in his left shoulder, h ip, and lower back for the past twenty years, and that anti-inflammatory medications had not been ver y helpful. In addition , Shelton had suffered from polio as a child but had recovered without any permanent paralysis. From 1988 until the onset of his alleged disability, Shelton had worked as a self-employed carpenter, bidding jobs and performing general carpentry. Shelton's applications for benefits were denied initially and on reconsideration. Shelton sought a hearing before an ALJ, which was held on November 2, 1993.

Shelton was treated between July 199 2 and November 1993 for a number of ailments, including throat discomfort, a smal l hiatal hernia, digestive problem s, pain in the lower abdomen, back and hip pain, and nausea. O n February 2, 1993, Shelton's cardiac doctor stated that Shelton's activitie s need not be restricted from a cardiovascular perspective. His chiropracto r stated that, due to b ack pain, Shelton would be unable to return to work; however, Shelton's or thopedic doctor concluded on February 18, 1993, that Shelton could resume normal activities and recommended conservativ e treatment. The orthopedist stated that Shelton could occasionally lift or carry 50 pounds, frequently lift or carry 20 pounds, and

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sit for 4 hours per day and stand for 4 hours per day in full-tim e employment.

At the hearing, Shelton testified as follows: He is not able t o perform as his orthopedist had stated; he cannot sit for an hour, can stan d at mo st for about 30 minutes, can lift at most about 20 pounds, and ca n lift only 5 pounds on a frequent basis. He lies down two to three times daily and sometimes u ses heat to ease the pain. He does not do yard work or housework, but he does sometimes accompany hi s wife to do the shopping. Shelton is able to drive "to a certain extent." He watches television, bu t his other recreational activities have been limited or eliminated by his impairments. Shelton 's wife also testified about his discomfort, stating that he frequently changes positions, most of the time lying down o r sitting. A friend of the family testified accordingly.

The ALJ also heard testimony concerning Shelton's education an d literacy. Shelton st ated he had obtained an eighth grade diploma, but he had missed quite a few days of school in order to work for his father

. Shelton testified that he can write, although he has some problems wit h spelling. He also stated he can read "to a certain extent," unless the writing is "too compl icated." (J.A. at 41.) Shelton's wife indicated he can read and understand instructions on how to a ssemble something he might have bought at the store.
Applying the five-step sequential an alysis for evaluating disability claims, see 20 C.F.R. § 404.1520(b)-(f), the ALJ found first that Shelton was not currently working and next that Shelton had a severe impairment of
coro naryartery disease, status post-myocardial infarction with stabl e angina , a small hiatal hernia, gastritis and duodenitis, and post-poli o syndrome with low back and left leg discomfort. The ALJ then determined that Shelton's impairments, individually or in combination, were not liste d
or

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medically equal to any impairment listed in 20 C.F.R. § 404, Subpart P , App endix1. Fourth, the ALJ concluded that Shelton's impairments woul d preclude him from performing his former work. Upon that conclusion, the burden shifted to the Commissioner to demonstrate that Shelton possessed the residual functional capacity to perform jobs existing in significant numbers in the national economy.

Based on the medical evidence and the testimony presented, the AL J pose d hypothetical questions to a vocational expert (VE). The firs t question assumed a hy pothetical person of Shelton's age, with eight years of education and with Shelton's vocational experience. The hypothetical person could frequently lift approximately 10 pounds, and occasionally lif t 20 pounds. The person would need to change posi tions due to discomfort or pain after either sit ting for less than an hour or standing for less than 30 minutes. The person could sit and stand each for a total of about four hours a day. Based on these facts, the VE opined that the person could no t perf ormthe work Shelton had previously performed but was capable o f several light, unskilled jobs, which the VE identified at the hearing. Th e VE stated that if the person was functionally illiterate and could not rea d at all, however, he would not be capable of performing the jobs. I n addition, if the person was required to lie down due to pain and discomfor t two to three times da ily for periods of 30 minutes or more, the VE stated that the person would not be able to return to work.

Based on the VE's response to the first hypothetical question, th e ALJ found that Shelto n was capable of returning to work and therefore was not disabled as defined by the Social Security Act. The Appeals Council denied review initially and again after receivin g additional evidence from Shelton. As such, th e ALJ's decision stands as the final decision of the Commissioner. On appeal, the district court affirmed the Commissioner's decision. Shelton now appeals to this court.

### 5 II.

We must affirm the Commissioner's decision if substantial evidenc e exists to support the ALJ's determinations when the record is viewed as a whole. 42 U.S.C. § 405(g); Reynolds v. Chater , 82 F.3d 254, 257 (8th Cir. 1996). "Substantial evidence is less than a preponderance, but enough so that a reasonable min d might find it adequate to support the conclusion." Oberst v. Shalala , 2 F.3d 249, 250 (8th Cir. 1993). "We do not reweigh th e evidence or review the factual record de novo." Naber v. Shalala , 22 F.2d 186, 188 (8th Cir. 1994). If the record evidence could support tw o in consistent positions and one of them represents the Commissioner' s findings, we must aff irm the Commissioner's denial of benefits. Mapes v. Chater , 82 F.3d 259, 262 (8th Cir. 1996).

She lton contends that the ALJ erroneously concluded Shelton wa s literate and, relatedly, failed to adequately develop the record on this issue. W e disagree. The record indicates that the ALJ questioned bot h Shelton and Shelton's wife on this issue. Their testimony reveals tha t Shelton had completed the eighth grade and can read and write. Shelton ha d most recently worked as a self-employed carpenter (which is considered to be ski lled labor), bidding jobs and performing general carpentry work

. Considering this evidence, we believe the record as a whole supports the ALJ's finding that Shelton is literate with a limited education. See 20 C.F.R. § 404.1564(b)(3) ("Limited education means ability in reasoning , arith metic, and language skills, but not enough to allow a person wit h these educational qualifications to do most of t he more complex job duties needed in semi-skilled or skilled jobs. . . . [A] 7th grade through the 11th grade level of formal education is [generally considered to be] a limited education.").

Shelton also argues that the ALJ failed to use the proper standar d for reviewing subjective complaints of pain. In particular, Shelton argue s the ALJ failed to account for his pain,

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which suggests impairment beyond that demonstrated by the objective medica l evidence. See Polaski v. Heckler , 739 F.2d 1320 , 1321-22 (8th Cir. 1984). "Whe n an ALJ reviews a claimant's subjective allegations of pain an d det ermines whether the claimant and his testimony are credible, the AL J must examine the fact ors listed in Polaski and apply those factors to the individual ." Hall v. Chater , 62 F.3d 220, 223 (8th Cir. 1995). Th e Polaski factors include:

"(1) the claimant's daily activities, (2) the duration , frequency and intensity of the pain, (3) dosage, ef fectiveness, an d side effects of medication, (4) precipitating an d aggravating factors, and (5) functional restrictions."

Id. (quoting Clive v. Sullivan , 939 F.2d 560, 56 5 (8th Cir. 1991)). "When mak ing a determination based on these factors to reject an individual' s complaints, the ALJ must make an express credibility finding and give his reasons for discrediting the testimony." Id. The AL J in this case made an express credibility finding unde r Polaski and stated his reasons for that finding. The ALJ found that the eviden ce supports Shelton's statements concerning his pain as a genera l matter, but not to the severity and degree of which Shelton complains. Th e ALJ determined that the objective evidence in th e medical reports does not support the degree of pain of which Shelton complains. Furthermore, the opini ons of Shelton's treating physicians did not support Shelton' s allegations of pain t o a high degree. Shelton's cardiologist recommended no restrictions on ac tivities or work. Shelton's orthopedist recommended
co nservative treatment and had not prescribed significant amounts o f medication for pain. Shelton's gastric problems appeared to be controlled with medic ation. The ALJ also noted Shelton "retains the capacity t o attend church twice every week, drive as needed, shop as needed,

### Shelton takes issue with this list of activities. While we 2 

### agree with him that the evidence does not support a finding that he actually engages in all of these activities (e.g., reading for enjoyment), the record does support a finding that he is capable of participating in these activities. He can read; he watches television; he drives and shops to some extent and attends church twice each Sunday. We note that although Shelton cannot sit through an entire one-hour church service, the ALJ included this limitation in the relevant hypothetical question and thus incorporated it into the ultimate decision. We therefore cannot agree that the ALJ's decision is based on erroneous facts.
7 visit with others, and enjoy television and reading." (J.A. at 24.) I n 2 addition, the ALJ noted that Shelton does not us e a supportive device; nor does he complain of a ny adverse side effects from his medication. Based
on the Pol aski factors, the ALJ found that Shelton had overstated th e extent of his pain. The ALJ concluded that Shelton's limited activities
were t he result of lifestyle choices, not medically necessitate d limitations. After c areful review of the record as a whole, we find that substantial evidence supports the ALJ's ultimate determination regarding Shelton's credibility.
Finally, Shelton challenges the brev ity of the district court's onepage order, essentially arguing that the court f ailed to adequately review the Co mmissioner's decision and to consider Shelton's contentions. Th e distric t court set out the correct legal standards, noting the entir e record must be reviewed. "After reviewing the b riefs, the ALJ's decision, and th e hearing transcript," the court found the record containe d substantial evidence supporting the ALJ's decision. (Appellant's Adden. at A2.) We operate u nder a presumption that the district court conducted a proper review before rendering a decision. Cf

. United States v. Hamell , 931 F.2d 466, 468 (8t h Cir. 1991) (presuming the district court conducted de nov o review before adopting a magistrate judge's report an d recommendation). Nothing in this record gives us any reason to abando n this presumption and to

### 8

assume th e district judge failed to do what he explicitly stated he ha d done.
Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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