The Honorable Patrick A. Comny, United States District Court 1

Judge for the District of North Dakota.

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No. 95-2022 

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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. *

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 Submitted: November 17, 1995

 Filed: December 27, 1995

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

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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) is supported by substantial

evidence, we affirm.

This action has a long procedural history which need not be fully

recounted here. Henry Novotny filed for disability benefits under Title

II of the Social Security Act. The ALJ denied Novotny's claim and the

Appeals Council denied his request for review. Novotny appealed the denial

of benefits to the district court. The district court granted the

Commissioner's motion for summary judgment, holding that evidence in the

record as a whole
 He also alleged pain in his dominant (right) hand and hearing 2

loss in one ear.

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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, which

included loading and maintaining the truck. Novotny received his General

Equivalency Diploma (GED) in the early 1960s. He alleged total incapacity

for all substantial gainful employment as of November 2, 1989, due to pain

in his shoulders, neck, back, hips, and knees.2

On appeal, Novotny first argues that the district court erred in

disposing of this action through summary judgment. Because Novotny raises

this argument for the first time on appeal, we need not consider it. See

Ownbey v. Shalala, 5 F.3d 342, 345 (8th Cir. 1993) (per curiam).

Nevertheless, we conclude that the district court engaged in a proper

review of the ALJ's decision and did not err in treating the motion for

summary judgment as a motion to affirm the denial 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 not

disabled. Although Novotny advances several arguments, he essentially

asserts that the evidence in the record is sufficient to establish that he

is disabled. Specifically, Novotny argues that he has shown that he

suffers from sufficient subjective pain to justify an award of benefits.

We review the denial of social security benefits to determine whether

substantial evidence in the record as a whole supports the ALJ's decision.

42 U.S.C. § 405(g); e.g., Rappoport v. Sullivan,
 The ALJ considered the testimony of Novotny's wife and

3

discounted it based on her financial interest in the case. See,

e.g., Ownbey, 5 F.3d at 345.

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942 F.2d 1320, 1322 (8th Cir. 1991). Substantial evidence is "`such

relevant evidence as a reasonable mind might accept as adequate to support

a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The ALJ

followed the five-step sequential analysis proscribed in the regulations.

See 20 C.F.R. § 404.1520(a)-(f); see also 20 C.F.R. § 416.920. The ALJ

concluded that Novotny had not engaged in substantial gainful employment

since November 2, 1989, and that he suffered from severe physical

impairments. The ALJ determined, however, that while Novotny is unable to

perform his past relevant 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,

based on the testimony of a vocational expert, Novotny is capable of

performing unskilled, light exertional jobs. The ALJ, therefore, concluded

that Novotny was not disabled.

Novotny argues that the ALJ, and the district court, erred in failing

to consider testimony by himself and his wife that he is unable to work due

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 "make

an express credibility determination explaining his reasons for

discrediting the complaints." Ghant v. Bowen, 930 F.2d 633, 637 (8th Cir.

1991).

In the present case, the ALJ found that Novotny's testimony as to his

extreme pain lacked credibility, as did the testimony of his wife. The

3

evidence demonstrated that Novotny had not sought any regular or sustained

medical treatment, even though he described his pain on a scale of one to

ten as a level of "ten." Moreover,
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Novotny acknowledged that he was not using any prescription pain medication

at the time of the hearing. The ALJ also found that Novotny's daily

activities--e.g., carrying out the garbage, carrying grocery bags, driving

his wife to and from work--were inconsistent with his allegation of

extreme, persistent, and disabling pain. We conclude, therefore, that

substantial evidence supports the ALJ's determination that Novotny's pain

did not rise to the level 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

subjective complaints of pain, found them unpersuasive, and set forth

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 by

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.