### The Honorab le Patrick A. Comny, United States District Court 1 

### Judge for the District of North Dakota. ___________ No. 95-2022

___________ Henry Novotny, * * Appellant, * * Appeal from the United States v. * District Court for the * District of North Dakota. Shirley S. Chater, * Commissioner of Social * [PUBLISHED] Security Administration, * * Appellee. *

___________ Submitted: November 17, 1995 Filed: December 27, 1995

___________ Before BOWMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ PER CURIAM.

The claimant, Henry Novotny, appeals the district court's judgment 1 affirming the denial of Social Security disability benefits. Because the decision of the administrative law judge (ALJ) i s supported by substantial evidence, we affirm.

This action has a long procedural history which need not be full y recounted here. Henry Novotny filed for disability benefits under Title II of th e Social Security Act. The ALJ denied Novotny's claim and th e Appeals Council denied his request for review. Novotny appealed the denia l of benefits to the district court. The district court granted th e Commissioner's motion for summary judgment, holding that evidence in the record as a whole

### He also alleged pain in his dominant (rig ht) hand and hearing 2 

### loss in one ear. -2- supported the ALJ's decision to deny benefits. After review of the record , we find no error and affirm the district court.
At the time of the hearing in this case, Novotny was fifty-four years old and unemployed. He had previously worked as a truck driver, whic h included loading and maintaining the truck. Novotny received his General Equivalency Diploma (GED) in the early 1960s. H e alleged total incapacity for all substantial gainful employment as of Nov ember 2, 1989, due to pain in his shoulders, neck, back, hips, and knees. 2

On appeal, Novotny first argues that the district court erred i n disposing of this action through summary judgmen t. Because Novotny raises this argument for the first time on appeal, we need not consider it. See Ow nbey v. Shalala , 5 F.3d 342, 345 (8th Cir. 1993) (per curiam)

. Neverth eless, we conclude that the district court engaged in a prope r review of the ALJ's decision and did not err in treating the motion fo r summary judgment as a motion to affirm the denia l of benefits. See , e.g. , Browning v. Sullivan , 958 F.2d 817, 820 (8th Cir. 1992); Sykes v. Bowen , 854 F.2d 284, 285 (8th Cir. 1988) (per curiam).

Novotny also contends the ALJ erred in determining that he was no t disa bled. Although Novotny advances several arguments, he essentiall y asserts that the evidence in the record is suffi cient to establish that he is d isabled. Specifically, Novotny argues that he has shown that h e suffers from sufficient subjective pain to justify an award of benefits.
We review the denial of social security benefits to determine w hether substantial evidence in the record as a whole su pports the ALJ's decision. 42 U.S.C. § 405(g); e.g. , Rappoport v. Sullivan ,

### The ALJ considered the testimony of Novotny's wife an d 3 

### discount ed it based on her financial interest in the case. See , e.g. , Ownbey , 5 F.3d at 345. -3- 942 F.2d 1320, 1322 (8th Cir. 1991). Substantial evidence is "`suc h relevant evidence as a reasonable mind might acc ept as adequate to support a conclusion.'" Rich ardson v. Perales , 402 U.S. 389, 401 (1971) (quoting Consol idated Edison Co. v. NLRB , 305 U.S. 197, 229 (1938)). The AL J followed the five-ste p sequential analysis proscribed in the regulations. See 20 C.F.R. § 404.1520(a)-(f); see also 20 C.F.R. § 416.920. The AL J concluded that Novotny had not engaged in substantial gainful employment since November 2, 1989, and that he suffered from severe physica l impairments. The ALJ determined, however, that while Novotny is unable to perform his past rele vant work as a truck driver/payload operator, he has the residual functional capacity to perform the full range of light work and a restricted range of medium work. Finally, the ALJ concluded that, base d on the testimony of a vocational expert, Novotny is capable o f performing unskilled, light exertional jobs. The ALJ, therefore, conclude d that Novotny was not disabled.
Novotny argues that the ALJ, and the district court, erred in f ailing to consider testimony by himself and his wife that he is unable to work du e to extreme pain. We have recognized on numerous occasions that an ALJ may reject the claimant's subjective complaints of pain, but the ALJ must "mak e an e xpress credibility determination explaining his reasons fo r discrediting the complaints." Ghant v. Bowen , 9 30 F.2d 633, 637 (8th Cir. 1991).
In the present case, the ALJ found that Novotny's testimony as to his extre me pain lacked credibility, as did the testimony of his wife. Th e 3 evidence demonstrated that Novotny had not sough t any regular or sustained medical treatment, ev en though he described his pain on a scale of one to ten as a level of "ten." Moreover,

### -4-

Novotny acknowledged that he was not using any prescription pain medicatio n at the tim e of the hearing. The ALJ also found that Novotny's dail y activities--e.g., carrying out the garbage, carr ying grocery bags, driving his wife to and from work--were inconsistent with his allegation o f extrem e, persistent, and disabling pain. We conclude, therefore, tha t substantial evidence supports the ALJ's determination that Novotny's pain did not rise to the l evel of disabling. See Thomas v. Sullivan , 928 F.2d 255, 259 (8th Cir. 1991) (stating that "the real issue is how severe the pain is" not merely the presence of pain). The ALJ considered Novotny's subjec tive complaints of pain, found them unpersuasive, and set fort h sufficient reasons for discrediting those complaints. Thus, "we have no basis in the record for rejecting the ALJ's analysis." Besler v. Sullivan , 963 F.2d 176, 178 (8th Cir. 1992) (citation omitted).

We conclude that the ALJ's denial of benefits is supported b y substantial evidence and that the district court committed no error in its review of that decision. Accordingly, we affirm.

A true copy.

Attest:

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