The Honorable Beverly R. Stites, United States Magistrate

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Judge for the Western District of Arkansas, to whom the case was

referred for final disposition by consent of the parties pursuant

to 28 U.S.C. § 636(c).

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No. 95-3592

___________

Phillis Shepherd, *

 *

Appellant, *

 *

v. * Appeal from the United States

 * District Court for the

Shirley S. Chater, Commissioner * Western District of Arkansas.

Social Security Administration, *

 * [UNPUBLISHED]

Appellee. *

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 Submitted: April 18, 1996

 Filed: May 6, 1996

___________

Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.

___________

PER CURIAM.

Phyllis Shepherd appeals from the final order entered in the district

court affirming the decision of the Commissioner of Social Security to

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deny Shepherd's application for disability insurance benefits. For the

reasons set forth below, we affirm.

Shepherd was born in 1943, and had worked as, among other things, a

stock clerk. In September 1992, she applied for benefits, alleging that

lumbar and cervical degenerative disc disease, arthritis, and pain in her

neck, shoulder, arms, hands, hips, and lower back, rendered her disabled

as of May 22, 1992. 
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Shepherd's application was denied initially and on reconsideration, and she

requested a hearing before an Administrative Law Judge (ALJ), which was

held in September 1993. Shepherd expressly waived her right to

representation; Shepherd, her husband, and a vocational expert testified.

After analyzing Shepherd's subjective complaints of pain under the

criteria set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.

1984), the ALJ found her complaints not fully credible. The ALJ determined

that Shepherd's exertional and non-exertional impairments did not meet or

equal any listed impairment, and that--based on the vocational expert's

response to a hypothetical question--Shepherd had the residual functional

capacity to perform her past relevant work as a stock clerk. Thus, the ALJ

concluded that Shepherd was not disabled and denied her benefits. After

considering new evidence, the Appeals Council denied further review. The

district court concluded there was substantial evidence to support the

Commissioner's decision and granted the Commissioner's motion for summary

judgment.

On appeal, Shepherd first argues that she did not knowingly and

intelligently waive representation. We conclude this argument is

meritless, because prior to the administrative hearing, Shepherd received

no fewer than four notices from the Commissioner, written in

straightforward, simple terms, informing her of her right to

representation. See Wingert v. Bowen, 894 F.2d 296, 298 (8th Cir. 1990)

(claimant properly notified of right to representation when notices clearly

explain claimant's right to counsel).

Second, Shepherd argues the ALJ failed to develop a reasonably

complete record. Because Shepherd was unrepresented, the ALJ had a duty

to "develop a reasonably complete record," but not to act as substitute

counsel. See Clark v. Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994); see

also Highfill v. Bowen, 832 F.2d 112, 115 (8th Cir. 1987) (claimant's lack

of counsel enhances "ALJ's duty to bring out
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the relevant facts"). We conclude the ALJ properly performed this task

because he questioned Shepherd about her impairments and her residual

functional capacity, and offered her an opportunity to add any additional

information she felt was relevant to her claim. See Wingert, 894 F.2d at

298 (ALJ adequately developed record regarding claimant's issue on appeal

when ALJ "conscientiously elicited the facts" and asked if claimant wanted

to add any other information addressing issue). Moreover, Shepherd failed

to assert how any of the alleged deficiencies in the record prejudiced her.

See Highfill, 832 F.2d at 115 (claimant must show prejudice or unfairness

resulting from an incomplete record).

Third, Shepherd argues the ALJ improperly discounted her subjective

complaints of pain. To determine whether the ALJ properly applied the

Polaski factors, this court must consider whether the ALJ took into account

all the relevant evidence, and whether that evidence contradicted the

claimant's own testimony so that the ALJ could discount the testimony for

lack of credibility. Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987).

After reviewing the ALJ's decision and the record, we conclude the ALJ

considered all the relevant evidence before him and properly discredited

Shepherd's testimony regarding her subjective complaints. See Woolf v.

Shalala, 3 F.3d 1210, 1214 (8th Cir. 1993) (subjective complaints of pain

may be discounted if there are inconsistencies in the evidence as a whole).

Here, the objective medical evidence failed to support the severity of

Shepherd's complaints and it contradicted her subjective assessment of her

functional capacities. See Barrett v. Shalala, 38 F.3d 1019, 1022 (8th

Cir. 1994) (absence of objective medical evidence supporting claimant's

subjective complaints of pain is proper factor for ALJ to consider).

Moreover, Shepherd's usual use of only Tylenol to control her pain, and her

failure to seek aggressive treatment are inconsistent with a finding of

disabling pain. See Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988)

("failure to seek aggressive treatment is not suggestive of disabling back

pain");
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cf. House v. Shalala, 34 F.3d 691, 694 (8th Cir. 1994) (pain controlled by

Tylenol, minimal medical treatment, and ability to perform variety of daily

activities inconsistent with complaints of disabling pain).

We reject Shepherd's other claims as meritless. The hypothetical

question the ALJ posed to the VE was proper because it set forth all the

limitations which the ALJ accepted as true and were supported by the

record. See Haynes v. Shalala, 26 F.3d 812, 815 (8th Cir. 1994) (court

addressed challenge to hypothetical question despite ALJ's finding that

claimant could perform past relevant work). Finally, a review of the

record shows that the ALJ considered all the relevant evidence and did not

over-emphasize one physician's report over that of Shepherd's treating

physician; that after determining Shepherd's exertional and non-exertional

impairments, the ALJ specifically considered the effects of each,

singularly and in combination; and that even considering the new evidence

submitted to the Appeals Council, substantial evidence supports the ALJ's

decision to deny Shepherd benefits. See Riley v. Shalala, 18 F.3d 619, 623

(8th Cir. 1995) (standard of review).

Accordingly, the judgment is affirmed.

A true copy.

Attest:

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