___________

No. 95-2470

___________

Virgil Clark, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the

Shirley S. Chater, Commissioner * Western District of Missouri

of the Social Security *

Administration, * [TO BE PUBLISHED]

*

Appellee. *

___________

 Submitted: January 5, 1996

 Filed: April 24, 1996

___________

Before McMILLIAN, WOLLMAN, and HANSEN, Circuit Judges.

___________

PER CURIAM.

Virgil Clark appeals from the district court's order affirming the

decision of the Commissioner of the Social Security Administration to deny

Clark disability insurance benefits. We affirm.

Clark was born March 9, 1948, has an eighth-grade education, and

worked as a salvage yard foreman at a metal plating company. In August

1990, Clark applied for disability insurance benefits, claiming disability

due to diabetes and a back injury. His application was denied initially

and upon reconsideration. At Clark's request, an Administrative Law Judge

(ALJ) conducted a hearing, at which Clark was represented by counsel. The

Appeals Council later remanded the case for a second hearing. 
-2-

Clark testified that he last worked in December 1987. He stated he

experienced moderate chest pains; constant severe pain in his left

shoulder, arms, and legs, which was exacerbated by prolonged standing or

walking; and pain when he moved his neck. He occasionally had memory and

concentration problems. Clark stated he could not bend or squat completely

to the floor; during an eight-hour work day he would need to lie down about

six times for ten to thirty minutes; he could sit for only thirty-five

minutes at a time, and could stand for about one hour. He had trouble

focusing his eyes, which his doctors said was related to his high

cholesterol and diabetes. Contrary to his testimony at the first hearing,

Clark stated at his second hearing that he drank alcohol whenever he could.

A consultative neurologist testified that Clark's medical records

indicated his blood lipids were markedly elevated and he was diabetic;

neurologically, there was no evidence of objective neurological

abnormalities, and some evidence of back and neck movement limitations.

The neurologist disputed Clark's treating physician's opinion that there

was a relationship between Clark's hyperlipidemia (high elevation of

cholesterol and fatty acids in the blood) and his subjective complaints of

pain. Another consultative neurologist testified that test results did not

support the severity of Clark's complaints. A vocational expert testified

that Clark had not acquired transferrable skills from his past relevant

work, but that there were unskilled entry-level sedentary jobs in the

national economy which Clark could perform. 

The ALJ ordered an orthopedic consultation with x-rays of the

shoulders and knees to be performed by Clark's treating orthopedist, Harry

Miller. Dr. Miller noted Clark was unable to flex or extend his neck

muscles more than twenty degrees, had extremely poor range of shoulder

motion (although he noted only minor spurring on the shoulder x-ray), had

a decreased left hand grasp, and was unable to heel walk on his left side;

Clark's
-3-

thoracic spine was unremarkable but his lumbar spine had "rather severe

muscle spasm . . . with extreme loss of range of motion." Dr. Miller had

previously diagnosed a 1987 rotator cuff tear in the right shoulder,

hyperlipidemia, and diabetes mellitus; described Clark's limited range of

motion; and opined that Clark's pain, possible diabetic neuropathy, and

lack of education precluded him from gainful employment. Dr. Miller

suggested that Clark's metabolic disease could produce neuritis or muscle

and joint pain. 

The ALJ concluded that the severity of Clark's pain was

disproportionate to and not supported by the objective medical evidence;

the EMG, x-ray, and neurological examinations were essentially normal; the

minor degenerative joint changes and light defects of the cervical and

lumbar spine did not explain Clark's allegations of severe pain; his

treatment history was sporadic; and his earnings had been low since 1984

and thus he had little incentive to work. The ALJ noted little treatment

for alcohol abuse, and concluded the evidence did not show Clark had lost

voluntary control of his consumption of alcohol. 

The ALJ discounted Dr. Miller's opinion that Clark was disabled

because his conclusions were "based on a complete acceptance of [Clark's]

subjective complaints." The ALJ credited the opinion of the neurological

consultant who had stated that the medical findings and treatment history

did not support the severity of Clark's complaints. The ALJ discounted as

outside his realm of expertise Dr. Miller's opinion that Clark's lack of

education would prevent him from gainful employment. The ALJ also noted

that treating physicians were under considerable pressure to support

patients in their quest for disability income, and that Clark's wife was

employed at Dr. Miller's clinic. The ALJ rejected Clark's testimony

concerning his drinking habits and his need to lie down six times during

an eight-hour day for pain relief. Given the fact that Clark admitted at

the second hearing that he had not told the truth while under oath at his

first hearing, the ALJ's conclusion
-4-

that Clark's testimony was not credible finds substantial support in the

record.

The ALJ concluded Clark could not return to his past relevant work.

Shifting the burden to the Commissioner, the ALJ concluded that, based on

the vocational expert's testimony, there were other jobs which Clark could

perform which existed in significant numbers in the national and local

economies. Thus, Clark was not entitled to disability insurance benefits.

The Appeals Council denied further review. Clark sought judicial review,

and the district court granted the Commissioner summary judgment. 

Upon our careful review, we agree with the district court that the

record as a whole reflects substantial evidence to support the

Commissioner's decision. We conclude that the ALJ properly discounted the

opinion of Clark's treating physician, in that his opinion was not

consistent with the objective evidence in the record, and that the ALJ

properly considered the factors set forth in Polaski v. Heckler, 739 F.2d

1320, 1322 (8th Cir. 1984), in discounting Clark's subjective complaints

of pain.

In addition, Clark has not demonstrated by his testimony or by the

medical evidence that he has lost voluntary control of his alcohol

consumption. See Metcalf v. Heckler, 800 F.2d 793, 796 (8th Cir. 1986).

Thus, the ALJ did not err in excluding Clark's alleged uncontrolled use of

alcohol from the hypothetical posed to the vocational expert. We also

reject Clark's argument that the district court's issuance of a form denial

is grounds for reversal. The district court expressly stated it had

reviewed all the evidence in the record. 

Accordingly, we affirm the judgment of the district court.
-5-

McMILLIAN, Circuit Judge, dissenting.

I would reverse and remand this case for further proceedings for two

reasons. First, I believe the ALJ erred in discrediting Dr. Miller's

opinion while accepting that of a consulting physician who did not examine

Clark. We have held that "[t]he opinion of a treating physician is

entitled to great weight `unless it is unsupported by medically acceptable

clinical or diagnostic data.'" Ghant v. Bowen 930 F.2d 633, 639 (8th Cir.

1991) (quoting Kirby v. Sullivan 923 F.2d 1323, 1328 (8th Cir. 1991)). 

After the first hearing, the ALJ ordered a consultative examination,

including x-rays, to be performed by Dr. Miller. Dr. Miller reported that

Clark had difficulty walking, sitting, or standing for longer than thirty

minutes; had limited range of motion in his neck, shoulder, and lumbar

spine; and had severe pain limiting his ability to do much of anything.

The ALJ, however, discounted Dr. Miller's opinions for the very reason we

ordinarily accord the treating physician's opinion greater weight than the

opinions of other doctors in the case: Dr. Miller knew the patient. See

Thomas v. Sullivan, 928 F.2d 255, 259 & n.3 (8th Cir. 1991) (quoting

Schisler v. Heckler, 787 F.2d 76, 81 (2d Cir. 1986) ("the treating

physician is usually more familiar with a claimant's medical condition than

are other physicians")). I fail to understand why the ALJ ordered Dr.

Miller to perform the examination and then discounted his findings because

he was "under pressure to support patients in their quest" for benefits.

Moreover, Dr. Miller did not rely only on subjective complaints in reaching

his conclusions. The question is whether the medically acceptable clinical

data contradicts Dr. Miller's opinions. None of the consultative

physicians thought Clark was a malingerer; some suggested Clark's symptoms

could represent early-stage peripheral neuropathy. 
-6-

Second, because the standing/walking/movement restrictions which Dr.

Miller found following his consultative examination were not considered in

the hypothetical question, I believe the hypothetical did not precisely

describe Clark's impairments. See Whitmore v. Bowen, 785 F.2d 262, 263

(8th Cir. 1986) (for vocational expert's opinion to qualify as substantial

evidence, hypothetical question must precisely describe claimant's

impairments). 

Accordingly, I dissent.

A true copy.

Attest:

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