### The Honorab le Charles R. Wolle, United States District Judge 1 

### for the Southern District of Iowa. ___________ No. 95-3334

___________ Ralph R. Cruze, * * Appellant, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Shirley S. Chater, Commissioner * of Social Security, * * Appellee. *

__________ Submitted: March 15, 1996 Filed: June 7, 1996

__________ Before MAGILL, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ MAGILL, Circuit Judge.

Ra lph Cruze appeals from the district court's order affirming th e 1 Secretary of Health and Human Services' denial of disability benefits unde r Title II of the Social Security Act, 42 U.S.C. §§ 401-433 (1994). I n denying benefits, the administrative law judge (ALJ) found that although Cr uze could not return to his past work, he could obtain gainfu l employment. Because this decision is supported by substantial evidence, we affirm.

### -2- I.

At the time he applied for disability benefits on March 29, 1993 , Cruze was fifty-one y ears old and had worked as a maintenance electrician at the Dial Corporation in Fort Madison, Iowa, f or the past fifteen years. In his application, Cruze stated that he was disabled due to hear t problems. In September 1992, Cruze had suffered a heart attack, for which he was hospitalized. A cardiac catheterization showed lesioning of severa l of the blood vessels surrounding Cruze's heart. Cruze was again admitted to t he hospital on January 25, 1993, this time for light-headedness

. Card iac testing revealed atrial tachyrhythmia, which responded well t o cardiac electrical stimulation. Finally, in March 1993, Cruze underwent
a qua druple coronary artery bypass operation to combat three-vesse l coronary artery disease.

Th e Secretary denied Cruze's application initially and o n
re consideration because Cruze's condition did not meet the statutor y definition for disability. Cruze sought a hearing before an ALJ, which wa s held on April 11, 1994. At the hearing, the ALJ heard medical evidenc e from Dr. Austin, Cruz e's treating physician, and from Dr. Nichols and Dr. Minks, consulting physicians. Cruze also testified as to his subjective accounts of pain and his daily living activities.

After the hearing, the ALJ evaluated Cruze's claim according to the fiv e-step analysis prescribed by Social Security Administratio n Regulations. See 20 C.F.R. § 404.1520(b)-(f) (1993). The ALJ found at th e first step that Cruze was not currently working, at the second step that Cruze had a severe impairment, at the third step that Cruze's impairment did not meet or equal a listed impairment presum ed to be disabling, and at the fourth step that Cruze's impairment prevented him from doing his past relevant work as a maintenance engineer.

### -3- After the claimant has shown that he is precluded from doing pas t releva nt work, at step five of the analysis the burden shifts to th e Sec retary to demonstrate that the claimant possesses the residua l fun ctional capacity to perform jobs that exist in the national economy

. See C line v. Sullivan , 939 F.2d 560, 564 (8th Cir. 1991). Based on th e medical testimony pre sented at the hearing, as well as Cruze's testimony, the ALJ concluded that Cruze possessed the residual functional capacity

to perform the physical exertional and nonexertiona l req uirements of work except for lifting and carrying of mor e than 20 pounds occasiona lly or 10 pounds frequently; more than occasional stooping, kneeling, crawling, crouching, climbing, or balancing; exposure t o concentrations of heat, humidity, or cold; or work which involves more than low to moderate levels of stress.
Decision at 13. The ALJ posed a hypothetical qu estion incorporating these limitations to Leona Martin, a vocational expert (VE), who replied that Cruze cou ld still perform work as a light cleaner, office helper o r messenger, or mail clerk. The VE further testified that these positions exist in significant numbers in the national economy.

Based on t he response given by the VE, the ALJ denied Cruze' s application for benefits. The denial was upheld by the district court, an d this appeal followed.

II.

We must affirm the decision of the ALJ if it is supported b y substantial evidence. 42 U.S.C. § 405(g). Substantial evidence "is less than a preponderance, but enough so that a reasonable mind might find it adequate to support the conclusion." Oberst v. Shalala , 2 F.3d 249, 250 (8th Ci r. 1993). Thus, "[w]e do not reweigh the evidence or review th e factual record de novo." Naber v. Shalala , 22 F.3d 186, 188 (8th Cir

. 1994). Rather, "if it is

### Although Cruze also suffered from rheumatoid arthritis an d 2 

### from a tear of the medial meni scus, the ALJ noted that no evidence was pres ented that the arthritis was in an active stage, and th e rec ord did not contain any evidence about persistent joint pain , swe lling, and tenderness of major joints. Further, Dr. Austin' s physical examination revealed only minor limitations in the range of motion of Cruze's knees and other joints. Because th e hypothetical question given to the VE incorporated limitations in stooping, crawling, and the like, and because Cruze has no t conten ded on appeal that the ALJ overlooked this evidence i n formulating the hypothetical, we will confine our discussion to the cardiac problems.
-4- possible to draw two inconsistent positions from the evidence and one of those positions represents the agency's findings, we must affirm th e decision." Oberst , 2 F.3d at 250 (quoting Robinson v. Sullivan , 956 F.2d 836, 838 (8th Cir. 1992)).
Testimony from a VE based on a properly phrased hypothetical qu estion constitutes substanti al evidence. See Miller v. Shalala , 8 F.3d 611, 613 (8th Cir. 1993) (per curiam); cf. Hinchey v. Shalala , 29 F.3d 428, 432 (8t h Cir. 1 994) (when hypothetical question does not encompass all relevan t impairments, VE's testimony does not constitute substantial evidence t o support the ALJ's decision). The ALJ's hypothetical question need "includ e only those impairments that the ALJ finds are substantially supported by the record as a whole." Id. (citing Stout v. Shalala , 988 F.2d 853, 855 (8th Cir. 1993)); see also Morse v. Shalala , 32 F.3d 1228, 1230 (8th Cir. 1994).
Cruze challenges the ALJ's determination that he does not suffe r from a walking or standing limitation. Cruze contend s that the evidence of his cardiac problems demonstrates that he does suffer from this limitation , 2 and thus the hypothetical was incomplete for not including this impairment

. Cru ze also challenges the ALJ's description of his lifting and carryin g limita tions. We conclude that the ALJ's impairment determination wa s supported by substantial evidence, and that the hypothetical

### Cruze underwent a fourth treadmill test, shortly after hi s 3 

### hospitalization in January 199 3, that was aborted upon development of pre mature ventricular contractions. However, after the test , Dr. Au stin noted that Cruze's heart rhythm was "stable . . . fo r norma l activities." At this time, there was no evidence of an y active cardiovascular or pulmonary disease.
-5- question was therefore accurate and complete.

A.

The evidence concerning whether Cruze suffered from a standing o r walking limitation can be broadly broken down into three categories: (1) testimony from Drs. Nichols and Minks, based on objective medical evidence , who concl uded that Cruze did not suffer from such a limitation; (2 ) evidence of Cruze's daily living activities, which likewise supports the ALJ's decision; and (3) evidence detracting from the ALJ's decision , including testimony from Dr. Austin and from Cruze.

1. Dr. Nichols' and Dr. Minks' Assessments

Dr. Nic hols and Dr. Minks concluded that Cruze did not suffer fro m
a walking or standing limitation. They based their assessments on a revie w of the objective medical findings of Dr. Austin.

Cruze underwent three successful treadmill tests, in November 1992 3 (exerc ise time of eleven minutes and twenty seconds), February 199 3 (exercise time of fourteen minutes and thirty-fo ur seconds), and July 1993 (exercise time of twelve minutes and seventeen seconds). Cruze reached hi s target heart rate on all three tests. After each test, Dr. Austi n concluded that Cruze tested negative for both chest pain and arrhythmia.

Evidence of ischemia, on the other hand, was mixed. The

### This conclu sion, if accepted by the ALJ, meets the threshold 4 

### for light work, which is defined as work that "requires a go od deal of walking or standing [or] in volves sitting most of the time with some pu shing or pulling of arm and leg controls." 20 C.F.R

. § 1567(b); see also Naber , 22 F.3d at 189. Dr. Minks did not assess Cruze's walking ability. 5


### -6- November and February tests were positive for ischemia (the November test only weakl y so). However, in February, despite the positive test fo r ischemia, Dr. Austin concluded that Cruze's achieved energy levels would qualify him to work, although the results were not sufficient enough for Cruze to return to his prior job.

Cruze demonstrated remarkable improvement on the July test. Whil e he had some postoperational pain, he experienced only mild to moderat e sh ortness of breath, no faint-headedness, and no leg cramps

. Significantly, the test was negative for ischemia as well as chest pain an d arrhythmia.

Dr. Nichols, after reviewing these objective medical findings , concluded that Cruze could walk or stand for approximately six hours out of an eight-hour day, and that Cruze could sit for at least six hours in
a da y. Dr. Nichols noted that while Cruze had small areas of ischemia ,

4 the July 1993 treadmill test was negative for ischemia at 8.6 METS, an d that in September, Cr uze's gait was normal. Thus, Dr. Nichols determined that Cruze's cardiac problems do not disable him; rather, they merely limi t him to light work.

Dr. Minks came to a conclusion similar to that of Dr. Nichols. After reviewing the file in July 1993, Dr. Minks noted that Cruze "has n o limitations in standi ng, sitting, pushing, pulling, or the use of hand or fo ot controls." Tr. at 276. Dr. Minks further noted that, as of Jul y 5 1993, Cruze was "really not disabled at present," id. ; however, he deferre d to Cru ze's treating physician's view that Cruze should restrict hi s activities.

### -7-

2. Cruze's Daily Activities
The diagnoses of Dr. Nichols and Dr. Minks are fully supported in the record by evidence of Cruze's therapy and daily activities. Before hi s operati on in March 1993, Cruze regularly drove a car, performed ligh t housework , and visited friends daily at a coffee shop. After the Marc h operation, Cruze participated in cardiac rehabil itation and education. At therapy, he was able to walk independently for 800 feet and climb thre e steps at a time. Therapy goals were noted to have been met.

Less than six months later, in August 1993, Cruze was engaged in an active lifestyle, including mowing his lawn; shopping in town, usually onc e
or twic e a week for two to three hours per trip; visiting with friends ; caring for a number of farm animals such as cows and chickens, whic h entailed lifting and carrying ten-pound feed buckets to the animals; and performing odd jobs such as building birdcages a nd welding for himself and for his neighbors. Such activities tend to prove that Cruze is able t o work. Naber , 22 F.3d at 188 (complainant's desire to work part-time on hi s brother's ranch or in a paintshop or woodshop "tends to prove" that th e complainant was able to work).

Third, Cruze himself admitted that he was not completely disabled

. In a March 1994 pain questionnaire, Cruze admitted that he could stand , walk, climb stairs, kneel, drive, lift and carry light things, reach and handle things, grip, bend over, and crawl. Alth ough Cruze imposed a halfhour limitation for t hese activities, we find such a limitation belied by his recreational activities, which often include d a three-hour walk around town with friends.
3. Evidence Demonstrating Disability

Cruze con tends that, despite all of the evidence demonstrating that he did not suffer from a walking or standing limitation, the

### -8-

ALJ erred in not crediting Dr. Austin's conclusion that any significan t degree of walking about, particularly if this involved stairs, would put Cruze's cardiac statu s at risk. Although "a treating physician's opinion is generally entitled to substantial weight," Davis v. Shalala , 31 F.3 d 753 , 756 (8th Cir. 1994), such opinion "does not automatically control , since the record must be evaluated as a whole," Bentley v. Shalala , 52 F.3 d 784, 786 (8th Cir. 1995). Further, where the treating physician's opinion s are themselves inconsistent, they should be acco rded less deference. Id. ; cf. Donaho v. FMC Corp. , 74 F.3d 894, 901 (8th Cir. 1996) (in ERIS A disability cases, whe n a doctor offers inconsistent opinions, less weight should be afforded that opinion).

Dr. Austin's opinions have largely been inconsistent and are no t fully supported by the objective medical evidence. After the Februar y tre admill test, which was positive for ischemia, Dr. Austin stated tha t Cruze could return to work, just not at his old job at Dial. After this positive evaluation, Cruze's condition improved further, as evidenced by the July tr eadmill exam. If (1) Cruze could return to some work i n Februa ry, despite the presence of ischemia, and (2) Cruze's conditio n improved t hroughout the year, then we find it difficult to accept Dr

. Austin's September decision that Cruze's cardiac status suddenly put him at risk to return to any work.

At a September 1993 disability hearing, Dr. Austin noted tha t "[s]tanding, moving about, walking and sitting i n an 8 hour work day would be difficul t to assess." Tr. at 281. He then reversed course and , disrega rding the results of the February and July treadmill tests, h e asserted that any significant amount of walking would put Cruze at risk. This o pinion is not supported by "medically acceptable clinical o r diagnostic data" and thus the ALJ was not bound by it. Davis , 31 F.3d at 756.
Cruze also points out that Dr. Austin twice concluded that,

### In an August 1993 pain questionnaire, Cruze stated that h e 6 

### could walk less than a full block before he became tired and needed to rest. Cruze's friend, Bett y Clementson, reiterated this at the hearing, noting that Cruze cou ld not walk for long periods of time bef ore becoming light-headed and needing rest. In a late r questionnaire, dated November 17, 1993, Cruze noted that whe n working on a project, he could only pound around three nails before needing to rest due to numbness in his hand.
-9- given Cruze's job requirements at Dial, Cruze qualified for disabilit y ben efits under Iowa law. The ALJ properly disregarded this conclusion

. First, whether or not Cruze was disabled under Iowa law is not binding on the Commissioner of Social Security. See 20 C.F.R. § 404.1504. Second, statements that a claimant could not be gainfully employed "are not medica l opinions but opinions on the application of the statute, a task assigned solely to the discret ion of the Secretary." Nelson v. Sullivan , 946 F.2d 1314, 1316 (8th Cir. 1991). Such statements sim ply "are not conclusive as to the ultimate question" of disability. Id. at 1316-17. To the extent that Dr. Austin's opi nion was a medical opinion, we note that whenever he labelled Cruze as disabled, it was in reference to Cruze's former job at Dial; Dr. Austin never stated that Cruze was prevented from carrying on al l labor. The statement s have little bearing on Cruze's residual functional capacity.

Cruze' s subjective complaints of pain and light-headedness whe n 6 walk ing and working were also properly disregarded by the ALJ. Whe n review ing subjective complaints of pain, an ALJ cannot disregard the m unless they are not supported by the record as a whole. See Naber , 22 F.3 d at 188. In this case, the ALJ disregarded the subjective complaints o f pain and light-headedness because they conflicted with the evidenc e concerning Cruze's daily activities, such as caring for a number of farm animals and weekly three-hour visits to town. Further, the medica l evidence belies Cruze's testimony--during the July treadmill exam, Cruze suffered only mild to moderate shortness of breath, no faint-headedness, and no leg cramps. We find no error here.

### -10- Under the substantial evidence standard, we cannot say that the ALJ erred in concluding that Cruze did not have a standing or walkin g limitation. This con clusion was supported by the medical opinions of two consulting physicians and by evidence of Cruze's daily activities. Agains t this, Cruze offers only the inconsistent statements of his treatin g physician and his own subjective assessments. I t was therefore proper for the ALJ to not include a standing or walking limitation in the hypothetica l question given to the VE.

B.

The ALJ's determination that Cruze c ould lift ten pounds frequently, and tw enty pounds on occasion, is likewise supported by substantia l evidence. Upon revie wing the record, Dr. Nichols concluded that this was the p roper lifting limit for Cruze. Dr. Austin's testimony that Cruz e could not "lift any m ore than 5 or 10 lbs. with any degree of frequency," Tr. at 281, is not to the contrary, because the ALJ determined that Cruze could lift more than ten pounds only "occasionally." Further, Dr. Minks concluded in July 1993 that by January 1994, Cruze "should be capable of at least 50 pounds occasionally, 25 pounds frequently." Tr. at 276.
Cruze himself admitted to carrying ten-pound feed buckets to hi s cows on a regular basis. He also noted, in an August 1993 pain questionnaire, that he could carry u p to fifty pounds (for a distance of four feet), but that his d octors had advised him to carry no greater than twenty-fiv e pounds. That Cruze's doctors limited him to carrying twenty-five pounds suggests that Cruze w ould be able to carry twenty pounds on an occasional basis.
We conclude that the lifting and car rying weight restrictions in the hypoth etical have substantial support in the record. Because th e hypothetical given to the VE corresponded to the impairments as determined by the ALJ, the hypothetical given to the

### -11-

VE was proper. The VE's response, that Cruze would be able to perform job s tha t existed in the national economy in significant numbers, amounts t o substantial evidence supporting the ALJ's decisi on. See Miller , 8 F.3d at 613.

III.

Based on the record as a whole, substantial evidence supports th e ALJ's decision denying benefits to Cruze. Accordingly, we affirm.
HEANEY, Circuit Judge, dissenting.

The recor d fully supports Cruze's contention that he is entitled to disab ility benefits as of January 1, 1993. Contrary to the majority' s chara cterization, the record provides ample evidence that Cruze ha s difficulty standing or walking for prolonged periods of time. Yet, the AL J ignored this evidence when he posed the hypothet ical of limitations to the vocational expert. The ALJ similarly erred in c oncluding that Cruze could performlight work. As defined by the regulations, light work "requires a good deal of walking or standing." 20 C.F.R. § 1567(b). As the evidence in the record demonstrates, Cruze is unable to perform light work on a full-time basis. Thus, I respectfully dissent f rom the majority and would reverse the ALJ's denial of disability benefits.
Dr. Austin, Cruze's treating physici an, personally examined Cruze on
severa l occasions and monitored his heart condition periodically. H e stated that any significant degree of standing or walking would put Cruze' s cardiac status at risk. Tr. at 280. This evide nce alone is sufficient to requ ire a finding of disability. The ALJ and the majority discredi t Austin's disability e valuation, however, largely because they consider it "incon sistent" with his earlier evaluations. The majority argues that , based on the results of the treadmill tests in February and

### -12-

July 1993, Austin had reported an improvement in Cruze's condition and tha t therefore his September disability evaluation is "difficult to accept."
Dr. Austin's opinions are consistent and the majority is grasping at straws to characterize them to the contrary. As evidenced by his quadrupl e
corona ry bypass operation in March of 1993, Cruze's cardiac conditio n clearly did not improve from February to March. Moreover, although th e July treadmill test was negative for ischemia, Dr. Austin noted tha t interpretation of ischemia on that test was difficult due to the changes
on Cruze's EKG. A subsequent Thallium report revealed that Cruze' s ischemia "worsened in appearance and increased i n size" since his February examination. Tr. at 220. It also stated that Cruze's defect in his left ventricle had increased in size since the earlie r examination. Id . Thus, Dr. Austin's opinion, consistent with his earlier evaluations, should be accorded the substantial weight to which a treating physician's opinions generally are entitle d. See Davis v. Shalala , 31 F.3d 753, 756 (8th Cir. 1994).

The ALJ also should not have summarily rejected Dr. Austin' s statement that Cruze is disabled under Iowa law. If Dr. Austin had been referring to a standard other than that appropriate in Social Securit y disability cases, the ALJ might have had a point . Dr. Austin's statement, howev er, was addressed to the Iowa state office that makes the initia l disa bility determinations for the Social Security Administration. Hi s reference to Iowa law was therefore appropriate and should be credite d accordingly.

Moreo ver, the majority's wholesale reliance on the assessments o f Drs. Minks and Nichols is misplaced. Neither doctor, retained by th e Social Security Administration as consulting physicians, has eve r per sonally examined Cruze. Both based their opinions solely on Cruze' s medical records. Dr. Nichols did not even go to the trouble of preparing a narrative report. He simply checked a

### -13-

num ber of blanks in a form provided to him by the Social Securit y Adminis tration. Dr. Minks expressed no opinion as to Cruze's walkin g limitations. Rather, he stated that Cruze has "no limitations in standing , sitting, pushing, pulling, or the use of hand or foot controls." Tr. at 276. No one disagrees with that assessment, but the relevant inquiry is whether Cruze is able to do the walking that is required for light work on a full-time basis. M ost importantly, it is the responsibility of the ALJ to fully develop the record. If he found that there were inconsistencies in the opinions of the treating physician and the consulting physicians, he should have made f urther inquiry at the hearing to resolve the matter.

Fi nally, the ALJ and the majority have exaggerated the extent o f Cruze's daily activities. According to the testimony of both Cruze and hi s housemate, Betty Clementson, Cruze's activity is quite limited. The ALJ found that Cruze "was mowing his lawn, shopping, and caring for a number of farm and domestic animals" and concluded, "[e]vidently, he can perform all activities necessary to maintain his nine-acre home place." Tr. at 23

- 24. Such findings disregard Cruze's testimony that the only mowing he doe s is on a rider mower a nd that it is limited to ten minutes at a time. Tr. at 47-48. He also te stified that Ms. Clementson does the majority of the household and farm chores and that his neighbor feeds his cattle for him
once a day . Tr. at 49, 52. The majority similarly distorts Cruze' s recreational activities, stating that they "often included a three-hou r walk around town with friends." Ms. Clementson testified that she an d Cruze s ometimes go shopping and out to eat on the weekends and that th e entire trip would last, at a maximum, three hour s. Tr. at 70. Nowhere in the record is there support for the view that Cr uze is able to walk around town for three hours. Rather, he testified that he experiences shortness of breath and dizziness after walking for even a short period of time. Tr

. at 43. C ruze's daily activities include only light farm chores an d housekeeping, occasional shopping and carpentry, and visiting

### -14-

with friends and neighbors.
Neither the medical opinions nor Cruze's daily activities suppo rt the ALJ's conclusion that Cruze is able to perform full-time work that require s significant walking or standing. See McCoy v. Schweiker , 683 F.2d 1138, 1147 (8th Cir. 1982) (claimant must be able to perform the work "day in an d day out, in the sometimes competitive and stressful conditions in whic h real people work in the real world.") (en banc). It is conceded that Cruz e was not able to retur n to his past work. Thus, the burden was clearly on the S ecretary to establish that Cruze could perform light work i n accordance with the requirements of McCoy . She failed to carry her burden

.

Cruze is entitled to disability benefits beginning January 1, 1993. In the alternative, the matter could be remanded to the ALJ to resolve the conflict between the treating physician and the consulting physicians and then to pose an appropriate hypothetical to the vocational expert. Th e majority, however, rejects even that approach. I therefore dissent.

A true copy.

Attest:

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