John J. Callahan was named to serve as Acting Commissioner of Social Security 1

effective March 1, 1997. He has been substituted for Shirley S. Chater pursuant to Fed.

R. App. P. 43(c).

The HONORABLE ROBERT R. BEEZER, United States Circuit Judge for the 2

Ninth Circuit, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1036

___________

Donna J. Davis, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

John J. Callahan, Acting Commissioner *

1

of Social Security, *

*

Appellee. *

___________

Submitted: June 12, 1997

 Filed: September 24, 1997

___________

Before RICHARD S. ARNOLD, Chief Judge, BEEZER, and WOLLMAN, Circuit

2

Judges.

___________
Harrington rods are “a system of metal hooks and rods inserted surgically in the 3

posterior elements of the spine to provide distraction and compression in treatment of

scoliosis and other deformities.” The Sloan-Dorland Annotated Medical-Legal

Dictionary, p. 305 (1992 Supplement).

-2-

WOLLMAN, Circuit Judge.

Donna Davis appeals from the district court’s order affirming the

Commissioner’s denial of her application for Disability Insurance Benefits. We reverse

and remand.

I.

Davis was thirty-three years old at the time she applied for benefits. She has her

general equivalency degree and has employment experience as an order entry clerk,

secretary, cashier, and assembly line worker.

Davis filed for benefits on May 20, 1993, claiming that she became disabled as

the result of a fall at work on August 18, 1992, which exacerbated pain stemming from

the spinal fracture she had sustained in a car accident some fifteen years earlier. At the

hearing before the administrative law judge (ALJ), held on May 13, 1994, Davis

testified that soon after the fall she began experiencing severe pain in her neck and

upper back and continued to be in severe pain for the next few weeks. In addition to

the pain in her neck and back, Davis found it painful to breathe. Also, her leg shook,

making it difficult for her to control her walking. In an attempt to relieve her pain,

Davis underwent surgery to remove the Harrington rods that had been inserted into her 3

back to repair her spinal fracture. Davis testified that following that surgery the

pressure in her lower back worsened, her legs began to shake severely all the time, her

knees began to lock up, and her feet “quit working.” In addition, she testified that she

experiences severe migraine headaches and numbness in her legs.
-3-

The ALJ discredited Davis’s subjective complaints of disabling pain and found

that although Davis suffered from a severe impairment, the medical evidence did not

indicate an impairment of sufficient severity to meet a listed impairment. The ALJ

concluded that Davis was restricted in her ability to perform heavy manual labor or

work requiring frequent stooping or working in a bent-over position for prolonged

periods of time, restrictions which would not preclude her from performing her past

relevant work. 

On appeal, Davis argues that the Commissioner’s decision is not supported by

substantial evidence because it was based on the ALJ’s erroneous determination that

Davis’s subjective complaints were not credible. 

II.

We must affirm the Commissioner’s decision denying benefits if substantial

evidence on the record as a whole exists. See Lawrence v. Chater, 107 F.3d 674, 676

(8th Cir. 1997). “Substantial evidence is less than a preponderance, but enough so that

a reasonable mind might find it adequate to support the conclusion.” Id. (citations

omitted). In determining whether substantial evidence exists, “we must consider both

evidence that supports and evidence that detracts from the [Commissioner’s] decision,

but we may not reverse merely because substantial evidence exists for the opposite

decision.” Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997) (citation omitted).

“An ALJ may discount a claimant’s subjective complaints of pain only if there are

inconsistencies in the record as a whole.” Ostronski v. Chater, 94 F.3d 413, 418 (8th

Cir. 1996). The ALJ must consider the claimant’s prior work history; daily activities;

the duration, frequency, and intensity of pain; precipitating and aggravating factors;

dosage, effectiveness, and side effects of medication; and functional restrictions. See

id. (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). 
Clonus is “alternate muscular contraction and relaxation in rapid succession.” 4

The Sloan-Dorland Annotated Medical-Legal Dictionary, p. 149 (1987).

Baclofen (Lioresal) “is useful for the alleviation of signs and symptoms of

5

spasticity resulting from multiple sclerosis, particularly for the relief of flexor spasms

and concomitant pain, clonus, and muscular rigidity.” Physician’s Desk Reference, p.

829 (50th ed. 1996). A Baclofen pump is recommended for chronic use of Baclofen

injection, which “is indicated for use in the management of severe spasticity of spinal

cord origin.” Id. at 1596.

-4-

The ALJ discredited Davis’s subjective complaints of pain, finding them to be

contradicted by medical evidence. He found that Davis’s “pain has not caused her to

see a physician often and she has not been prescribed medication in such dosage or

quantity so as to indicate severe disabling pain. There is no indication that she does not

do her own household chores and other activities.”

The ALJ based his determination that medical evidence contradicted Davis’s

complaints in large part on the report of Dr. Leventhal, an orthopedic specialist. Dr.

Leventhal noted that he was at a loss to explain all of Davis’s complaints, concluded

that “her problem is complex and multifactorial,” and surmised that Davis had a

considerable amount of symptom magnification with functional overlay. There is

significant medical evidence, however, that supports Davis’s complaints of disabling

pain, including Dr. Leventhal’s own findings. Dr. Leventhal’s examination of Davis

revealed that Davis had marked limitation of forward bending and extension, restricted

right and left lateral bending, moderate spasticity of her lower extremities with

hyperreflexia in her knees and ankles, and sustained clonus of both lower extremities. 4

Dr. Leventhal noted that Davis walked with a spastic gait, had a difficult time walking

on her heels and toes, and that she complained bitterly of pain. He recommended a

check for infection, an MRI of her thoracic and lumbar spine, and consideration of a

Baclofen pump to help with her spasticity. He referred her to Dr. Feler, a

5

neurosurgeon, for consultation about an implantable Baclofen pump. Davis was

subsequently unable to complete the MRI due to extreme claustrophobia. 
"Dolobid is indicated for acute or long-term use for symptomatic treatment of 6

. . . [m]ild to moderate pain.” Id. at 1655. Parafon DSC is “indicated as an adjunct

to rest, physical therapy, and other measures for the relief of discomfort associated with

acute, painful musculoskeletal conditions.” Id. at 1581.

Darvocet N-100 is indicated for the relief of mild to moderate pain. Id. at 1434. 7

Percodan is indicated for the relief of moderate to moderately severe pain. Id. 8

at 939.

Clinoril is indicated for acute or long-term use in the relief of signs and

9

symptoms of a number of types of arthritis and acute painful shoulder injuries. Id. at

1619. 

-5-

The findings of several other physicians likewise rebut the ALJ’s conclusion that

the medical evidence contradicted Davis’s complaints of pain, and they also contradict

the ALJ’s finding that Davis sought medical attention infrequently and was not

prescribed medications in such dosage or quantity to support her allegations of pain.

Immediately following her fall, Davis went to her family physician, Dr. Mitchell, who

determined that Davis suffered muscle strain to her trapezius and mild contusion to her

left hand and prescribed Dolobid and Parafon DSC for pain. The following day Davis 6

saw an emergency room physician, Dr. Page, who also diagnosed trapezius strain and

prescribed Tylenol #3 for Davis’s pain and recommended that she not work the next

day. The following day, August 20, 1992, Davis returned to Dr. Mitchell, complaining

of pain in her neck and nausea and vomiting. Dr. Mitchell recommended that she not

work for another four days, continued her on the Parafon DSC, and prescribed

Darvocet N-100 for her pain. 7

On August 24, Davis saw Dr. Shedd, a physician whom she previously had seen

for back-related problems. Dr. Shedd prescribed Percodan, and instructed Davis not 8

to work for one week. On August 28, Davis returned to Dr. Mitchell, who continued

Davis on Parafon DSC and Darvocet N-100 and additionally prescribed Clinoril.9

Davis had a follow-up visit with Dr. Mitchell on September 3, and was continued on
-6-

the previously-prescribed medications and continued leave from work. Davis saw Dr.

Mitchell again on September 10 and September 17, and was referred to Dr. Thompson,

an orthopedic surgeon, whom she saw on September 18, for evaluation of the rods in

her back. Dr. Thompson found that Davis had full, albeit painful, motion of her

cervical spine, difficulty in toe and heel walking, and some atrophy of the left

quadricep, and that her reflexes were hyperactive with an unsustained clonus at both

ankles and several beats at the knees.

Upon referral by Dr. Thompson, Davis saw Dr. Gibson, a neurologist, on

November 3, 1992. Dr. Gibson noted tenderness over Davis’s left Harrington rod. In

addition, he found her gait and legs were spastic and that she had unsustained clonus

at the knees and ankles with crossed adductors. He also noted that she had decreased

pinprick sensation in the lateral aspect of the right leg and thigh. Dr. Gibson stated that

Davis had been developing increased spasticity since her fall and “there is certainly no

doubt that on examination today she is quite spastic with signs suggesting a problem

in the thoracic cord.” Dr. Gibson prescribed Lioresal (Baclofen) for the spasticity in

Davis’s legs and recommended either a CT scan or myelogram. 

Davis was next referred to Dr. Reding, a neurosurgeon, who upon examining

Davis was doubtful that she had suffered a significant additional neurologic injury but

who also recommended that Davis have a myelogram, which she subsequently

underwent on November 30. The myelogram revealed that Davis had a mild narrowing

of the anterior aspect of the canal at the T11-12 level secondary to posterior osteophyte

formation and evidence of a mild disc bulge, with small posterior osteophytes at the T5-

6 level. Based on these findings, Dr. Reding concluded that the neurologic findings

regarding Davis’s legs related to her previous injury and suspected that her leg

symptoms were associated with the pain in her spine. Dr. Reding then suggested that

Davis might want to proceed with removal of the Harrington rods in hopes of obtaining

some pain relief. A tomogram of T11-12 on January 7, 1993, showed minimal anterior

wedging of T12, associated with mild degenerative change at the T11-12 end plate. 
Babinski’s sign is “the extension of the great toe with fanning of the other

10

toes,” and “is of spinal origin and attests to an upper motor neuron lesion.” The Merck

Manual, p. 1384 (16th ed. 1992).

"Daypro is indicated for acute and long-term use in the management of the

11

signs and symptoms of osteoarthritis and rheumatoid arthritis.” Physician’s Desk

Reference at 2426. Tegretol is indicated for use as an anticonvulsant and in the

treatment of pain associated with trigeminal neuralgia (a disorder of the trigeminal

-7-

On February 5, 1993, Davis was admitted to the hospital for removal of the

Harrington rods. Dr. Thompson, who performed surgery to remove the rods, indicated

that prior to surgery Davis had weakness in her right quadricep, spasticity of both lower

extremities, unsustained prominence at the knees and ankles, extensive plantar response

bilaterally, and decreased sensation in the lateral aspect of her right leg. 

Davis was next seen by Dr. Shedd on May 4, 1993, and was again observed

having weak heel and toe walking, to the point that she had to hold on to the examining

table. In addition, Dr. Shedd noted that Davis walked with her knees locked and that

she had very hyperactive reflexes bilaterally, dyscoordination with the heel-knee-ankle

test, and unsustained myoclonus in both ankles. Dr. Shedd prescribed Lioresal and

referred her to Dr. Leventhal, the orthopedic specialist whose findings are set forth

above. 

On May 27, 1993, Davis again saw Dr. Shedd, who found she had paraspinuous

lumbar muscle spasm and was severely limited in movement in any direction, and

prescribed additional Baclofen. Davis was next seen by Dr. Feler on August 31, 1993.

Dr. Feler’s examination revealed cold allodynia and hyperthia, sustained clonus

bilaterally, bilateral Babinski’s signs, spasticity of her lower extremities, and

10

occasional spontaneous spasms, and noted that Davis had difficulty ambulating and that

the range of motion in her hips was mildly limited. Dr. Feler concluded that in addition

to her previous spinal cord injury, Davis had neural injury pain in the lower extremities,

facet syndrome and intractable spasticity and lower extremity spasm, and prescribed

Tegretol and Daypro, in addition to Baclofen. 11
nerve producing bouts of severe, lancinating pain lasting seconds to minutes in the

distribution of one or more of its sensory divisions, The Merck Manual at 1509).

Tegretol “should not be used for the relief of trivial aches and pains.” Physician’s Desk

Reference at 852.

-8-

Davis returned to Dr. Feler on October 5, 1993, complaining that the Tegretol

was making her feel “high.” Dr. Feler adjusted her prescription accordingly. On

November 16, 1993, Davis underwent a CAT scan of her lumbar spine, which revealed

mild bilateral foraminal narrowing secondary to hypertrophic changes, in addition to

degenerative changes in the facet joints. 

Davis testified that although at the time of her hearing she was taking six

prescription medications, they did not completely relieve her symptoms. She stated

that “it doesn’t take the pain away and it doesn’t take the shaking away. It takes the

edge off of it, to where I can actually deal with the pain . . . it helps me not be in so

much pain.”

The ALJ’s finding that Davis’s subjective complaints of pain were contradicted

by the level of her daily activities is likewise without support in the record. The ALJ

stated, “there is no indication that [Davis] does not do her own household chores and

other activities. She enjoys reading, watching television, needlepoint, and visiting. She

is able to drive.” Uncontroverted testimony reflects, however, that Davis is not able

to perform many of her daily activities, and the fact that Davis could perform a few

light household chores does not constitute substantial evidence that Davis possessed

the functional capacity to perform her past relevant work. See Baumgarten v. Chater,

75 F.3d 366, 369 (8th Cir. 1996) (“We have repeatedly held . . . 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.’”) (citation

omitted).
-9-

Davis testified that during a twenty-four hour period she has to lie down about

twelve hours. She stated that she has tried to do laundry and to vacuum her floor, but

that “it hurts so much that by the end of the day, I’m in so much pain that it’s not worth

it. So I either have to take more medication, to make it through it, or not do it.” She

also testified that someone else cooks the majority of her family’s meals and takes her

grocery shopping, and that she cannot clean the bathtub or mop floors. She stated that

she has tried to find things to do around the house, but hasn’t found a lot that she can

do, and can only do “just really the basic, the easiest things around the home.” In

addition, Davis testified that she occasionally drives twelve miles to take her husband

to work and home again, a total driving time of only some two hours per week.

Davis’s husband testified that Davis’s condition has been worsening since her

fall, that even when Davis does little things, she pays for it, and that it doesn’t take

much to make her sore. He also testified that he must often assist her in walking and

that Davis does not sleep well at night because of the spasms. A friend of Davis’s who

sees her nearly every day testified that since Davis’s injury and surgery to remove the

Harrington rods she has had a lot of pain in her back and bad headaches and that her

knees lock up, causing her to fall. This witness testified that Davis is very limited in

her activities and that she takes care of Davis and does most of Davis’s cooking. 

Another friend testified that she has noticed a “tremendous difference in [Davis]

and in the abilities that she had” since her fall and that she has seen a drastic difference

in Davis’s mobility since the removal of her Harrington rods. Hyde testified that it was

a major effort for Davis to climb the three steps to Hyde’s door, and for her to get up

out of a chair and walk the few steps to the door. Hyde also stated that she has heard

Davis “moan and groan” when moving around in a chair.

Although it was for the ALJ as trier of fact to give the testimony of family

members and friends such credence as he deemed warranted, he was not free to find
-10-

that Davis had offered no evidence in support of her allegations regarding her daily

activities.

Because we conclude that the ALJ failed to conduct such a review, we reverse

and remand for consideration of Davis’s subjective complaints of pain in accordance

with the factors set forth in Polaski v. Heckler in light of all of the evidence in the

record. See Ingram v. Chater, 107 F.3d 598, 605 (8th Cir. 1997).

The judgment is reversed, and the case is remanded to the district court with

directions to remand it to the Commissioner for further proceedings consistent with the

views set forth in this opinion.

BEEZER, Circuit Judge, dissenting.

I respectfully dissent.

Davis argues that the district court erred in affirming the Commissioner’s

decision to deny benefits. Davis maintains that substantial evidence does not support

the ALJ’s finding that her “allegations [of pain] are not credible to the extent alleged.”

A plethora of physicians have examined and treated Davis. These experts

reached conflicting conclusions regarding Davis’s pain, disability and residual

functioning capacity. One examining physician concluded that Davis was totally

disabled. On the other hand, Dr. Leventhal stated that Davis’s pain was “out of

proportion to all of her physical findings.”

Although unable to perform some work after her 1975 accident, Davis had been

employed in a number of different capacities prior to her 1992 fall. Three neurologists

that examined Davis determined that the injuries she sustained before the 1992 fall 
-11-

were the likely cause of her discomfort. They made no conclusions respecting whether

Davis was totally disabled.

The ALJ considered Davis’s testimony, testimony offered by Davis’s family and

friends, and the range of medical opinions introduced into evidence. “We therefore are

presented with the not uncommon situation of conflicting medical evidence. The trier

of fact has the duty to resolve that conflict.” Richardson v. Perales, 402 U.S. 389, 399

(1971). Although the ALJ acknowledged that Davis suffered pain, he found that

Davis’s allegations were not credible to the extent she alleged.

Substantial evidence supports the ALJ’s findings. I would affirm the decision

of the district court.

A true copy.

Attest:

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