1

The Honorable Harold D. Vietor, United States District Judge

for the Southern District of Iowa.

___________

No. 95-2095

___________

John J. Pena, *

*

 Plaintiff - Appellant, * 

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Shirley S. Chater, Commissioner *

of the Social Security *

Administration, ** Defendant - Appellee. *

___________

 Submitted: November 15, 1995

 Filed: February 16, 1996 ___________

Before BEAM, JOHN R. GIBSON and MORRIS SHEPPARD ARNOLD, Circuit

Judges.

___________

JOHN R. GIBSON, Circuit Judge.

John J. Pena appeals the district court's1 order affirming the

Social Security Commissioner's denial of his application for

disability and supplemental security income benefits. Pena argues

that the administrative law judge erred by discounting the opinion

of his treating physician, discounting Pena's testimony regarding

pain and the severity of his restrictions, and failing to fully and

fairly develop the evidence concerning Pena's depression. We

affirm.
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Pena is thirty-eight years old with a tenth-grade education.

He has worked as a dump truck driver, construction laborer, selfservice station attendant, institutional janitor, and tractor

assembler. Pena claims he became disabled on May 10, 1991, due to

bulging discs in his lower back. He also claims that he suffers

from depression.

After a hearing, the administrative law judge concluded that

Pena has severe impairments involving lumbar strain and sprain, a

history of a bulging disc, and complaints of pain and obesity.

However, Pena did "not have an impairment or combination of

impairments" qualifying under the impairments listed in the

regulations. The judge found that Pena was unable to perform his

past relevant work, but held that "jobs still exist in significant

numbers in the national economy that he can perform." A vocational

expert testified that Pena could work as an electrical assembler,

small parts assembler, or parking booth cashier. The judge

concluded that the vocational expert's testimony was consistent

with Pena's "profile as to age, education, previous work

experience, and residual functional capacity," and found Pena's

testimony contradictory, lacking in credibility, and unsupported by

the record. The judge concluded that Pena was not disabled and was

not entitled to disability or supplemental security income

benefits. The Commissioner adopted the administrative law judge's

decision, and the district court affirmed. Pena appeals.

We affirm the decision of the administrative law judge if it

is supported by substantial evidence on the record as a whole.

Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995). "We may not

reverse merely because substantial evidence would have supported an

opposite decision." Id. (internal quotations omitted).

Pena argues that the administrative law judge failed to give

controlling weight to the opinion of Pena's treating physician, Dr.
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Schultes. Dr. Schultes opined that Pena could lift or carry only

five pounds, and could walk, stand, or sit less than one hour.

"A treating physician's opinion is generally entitled to

substantial weight; however, such an opinion is not conclusive in

determining disability status, and the opinion must be supported by

medically acceptable clinical or diagnostic data." Davis v.

Shalala, 31 F.3d 753, 756 (8th Cir. 1994). The administrative law

judge considered the medical evidence provided by each physician

that treated Pena, and concluded that Pena's medical records are

inconsistent with Dr. Schultes's opinion. For example, both Pena's

physical therapist and Dr. Sinning, who also treated Pena in 1992,

concluded that Pena was ready for a work hardening program.

Neurological findings and X-rays were also within normal limits.

Considering the substantial evidence present in Pena's medical

records, the administrative law judge did not err by discounting

Dr. Schultes's opinion.

Next, Pena argues that the administrative law judge erred by

discrediting Pena's testimony regarding pain and the severity of

his restrictions. During the hearing, Pena testified that he

suffered from severe pain, which made it difficult for him to sit,

stand, or walk.

Applying the five factors set out in Polaski v. Heckler, 751

F.2d 943, 948 (8th Cir. 1984), the administrative law judge

partially discounted Pena's subjective complaints of pain. The

judge found that Pena's testimony was "contradictory and not

supported by the entire record," and his sporadic work history

failed to support his credibility.

"Where there are inconsistencies in the evidence as a whole,

the [Commissioner] may discount subjective complaints." Stephens

v. Shalala, 46 F.3d 37, 39 (8th Cir. 1995) (per curiam).

Inconsistencies between subjective complaints of pain and daily
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living patterns may also diminish credibility. Shannon, 54 F.3d at

487. "We will not disturb the decision of an [administrative law

judge] who seriously considers, but for good reasons explicitly

discredits, a claimant's testimony of disabling pain." Browning v.

Sullivan, 958 F.2d 817, 821 (8th Cir. 1992). Substantial evidence

supports the administrative law judge's decision to discount Pena's

testimony. Pena testified that he was able to care for at least

one of his six children on a daily basis, drive a car when unable

to find a ride, and sometimes go to the grocery store. Thus, the

judge considered Pena's testimony and supported the decision to

discount his subjective complaints of pain. See Stephens, 46 F.3d

at 39. 

Finally, Pena argues that the administrative law judge erred

in failing to fully and fairly develop the evidence concerning

Pena's depression. However, Pena did not allege depression in his

disability application, and he did not mention the condition during

his testimony. The administrative law judge is under no

"obligation to investigate a claim not presented at the time of the

application for benefits and not offered at the hearing as a basis

for disability." Brockman v. Sullivan, 987 F.2d 1344, 1348 (8th

Cir. 1993).

The administrative law judge's determination that Pena was not

disabled is supported by substantial evidence on the record as a

whole. Accordingly, we affirm.

A true copy.

Attest:

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