                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    _____________

                                     No. 98-2217
                                    _____________

Elvie L. Riggins,                     *
                                      *
             Appellant,               *
                                      * Appeal from the United States
      v.                              * District Court for the Eastern
                                      * District of Arkansas.
Kenneth S. Apfel, Commissioner,       *
Social Security Administration,       *
                                      *
             Appellee.                *
                                _____________

                                  Submitted: December 17, 1998
                                      Filed: May 24, 1999
                                   _____________

Before BEAM, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
                          _____________

FLOYD R. GIBSON, Circuit Judge.

        Elvie L. Riggins appeals the district court's1 judgment which affirmed the denial
of his application for social security disability benefits, see 42 U.S.C. § 423 (1994), and
supplemental security income, see 42 U.S.C. § 1381(a) (1994). We affirm.

I.    BACKGROUND

      1
        The HONORABLE JERRY W. CAVANEAU, United States Magistrate Judge
for the Eastern District of Arkansas, to whom this case was referred by consent of the
parties pursuant to 28 U.S.C. § 636(c) (1994).
        Riggins, who was thirty-three years old at the time that he claims he became
disabled, has a ninth grade education. Riggins's past relevant work includes experience
as a food delivery person and driver. In January 1993, Riggins injured his back lifting
a fifty-five gallon drum of liquid while working at a chemical company. On September
1, 1993, Riggins filed applications for disability insurance benefits and supplemental
security income, alleging a disability onset date of January 23, 1993. He claimed to be
disabled and unable to work because of degenerative changes of the lumbar spine and
right knee.

       The Social Security Administration (Commissioner) denied Riggins's
applications initially2 and again on reconsideration. On November 25, 1996 following
a supplemental hearing, the ALJ found, first, that Riggins had not engaged in
substantial gainful activity since January 23, 1993. Second, the ALJ found that
Riggins's severe impairments consisted of a history of degenerative changes of the
lumbar spine and right knee. Third, the ALJ nonetheless concluded that Riggins did
not have an impairment or combination of impairments that met or equaled the criteria
found in the Listing of Impairments. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 (1998).
Fourth, the ALJ found that Riggins was unable to perform his past relevant work. Fifth,
the ALJ determined that he had the residual functional capacity to perform light work
with sitting and standing/walking limited to one hour without interruption, with
additional restrictions against climbing ladders, kneeling, crawling, or more than
occasional balancing, stooping, crouching, and pushing/pulling. The ALJ found that


      2
        Following a hearing, an administrative law judge (ALJ) denied Riggins's claims
on June 24, 1994, finding that Riggins had the residual functional capacity to perform
sedentary work. The Appeals Council declined to review the ALJ's decision on
October 17, 1994. Riggins then sought judicial review of this decision in the United
States District Court for Eastern District of Arkansas; however, upon motion of the
Commissioner, the district court remanded the case for further proceedings because a
report from Ramon Lopez, M.D. had been omitted from the record and had not been
considered by the ALJ.

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the Commissioner met his burden to show a significant number of jobs within the
national economy that Riggins could perform, given his residual functional capacity,
age, education, and past work. These jobs included positions as an assembler, machine
operator, and a hand packer. Accordingly, the ALJ concluded that the Listing of
Medical-Vocational Guidelines3 directed a finding that Riggins was not disabled. See
Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the five-step analysis).
In addition, the ALJ discredited Riggins's subjective complaints of disabling pain after
applying the factors set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984) (subsequent history omitted).

       On January 17, 1997, the Appeals Council denied Riggins's request for further
review, and the ALJ's decision thereby became the final decision of the Commissioner.
Subsequently, Riggins appealed to the district court pursuant to 42 U.S.C. § 405(g)
(1994). On April 27, 1998, the district court granted the Commissioner's motion for
summary judgment, finding that substantial evidence supported the Commissioner's
decision to deny Riggins disability insurance benefits and supplemental security
income. On appeal, Riggins argues that (1) the Commissioner's decision that he is not
disabled is not supported by substantial evidence because the ALJ improperly
discredited his subjective complaints of disabling pain and (2) the ALJ's conclusion,
that a significant number of jobs in the national economy exist that Riggins can
perform, is not supported by substantial evidence because the ALJ posed a defective
hypothetical question to the vocational expert. Riggins claims that this hypothetical
question was defective because it did not clearly state that Riggins cannot sit for more
than one hour without interruption and further failed to include Riggins's pain
complaints.

II.   DISCUSSION


      3
          See 20 C.F.R. § 404.1569, § 416.969, and Pt. 404, Subpt P, App. 2, Table No.
2.

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      We review the Commissioner's findings to determine whether they are supported
by substantial evidence in the record as a whole. See Clark v. Apfel, 141 F.3d 1253,
1255 (8th Cir. 1998). Substantial evidence is defined as relevant evidence which a
reasonable mind would accept as adequate to support the Commissioner's conclusion.
See id. In our review, we must consider evidence that detracts from the
Commissioner's decision as well as evidence that supports it. See id. We may not
reverse the Commissioner's decision merely because substantial evidence exists in the
record to support a contrary outcome. See id.

       We first address Riggins's argument that the ALJ improperly discredited his
subjective complaints of pain. "As is true in many disability cases, there is no doubt
that the claimant is experiencing pain; the real issue is how severe that pain is."
Spradling v. Chater, 126 F.3d 1072, 1074 (8th Cir. 1997) (internal quotation and
citation omitted). An ALJ must consider the following factors when analyzing a
claimant's subjective complaints of pain: (1) the claimant's daily activities; (2) the
duration, frequency and intensity of the pain; (3) dosage, effectiveness, and side effects
of medication; (4) precipitating and aggravating factors; and (5) functional restrictions.
See Polaski, 739 F.2d at 1322. Other appropriate factors include the claimant's relevant
work history and the absence of objective medical evidence to support the complaints.
See id. "An ALJ may discount a claimant's subjective complaints only if there are
inconsistencies in the record as a whole." Jackson v. Apfel, 162 F.3d 533, 538 (8th
Cir. 1998) (internal quotation and citation omitted).

       Applying the foregoing factors, the ALJ concluded that Riggins's complaints of
disabling pain lacked credibility. We agree because substantial evidence of
inconsistencies exist between Riggins's allegations of disabling pain and the other
evidence of record in this case. Despite Riggins's complaints of disabling pain, there
was a substantial lack of medical evidence to support Riggins's allegations. Dr. Boyd,
Riggins's treating physician, concluded that the best thing for Riggins would be to "get
back into some kind of work," Tr. at 152, and released Riggins to return to work

                                           -4-
subject to a one-month, twenty-five pound weight restriction on August 30, 1993. We
accord substantial weight to the opinion of a treating physician. See Onstead v.
Sullivan, 962 F.2d 803, 805 (8th Cir. 1992). Dr. Boyd also determined that surgery
was not needed for Riggins's lower back condition. Similarly, Dr. Lindy, an examining
orthopedist, concluded that Riggins could lift up to thirty pounds and could stand, walk,
or sit for six hours and for only one hour continuously in an eight hour work day.

       The ALJ noted Riggins's daily activities were inconsistent with his complaints
of disabling pain. These daily activities included: driving his children to work, driving
his wife to school, shopping, visiting his mother, taking a break with his wife between
her classes, watching television, and playing cards. See Haynes v. Shalala, 26 F.3d
812, 814-15 (8th Cir. 1994) (ALJ may consider daily activities inconsistent with
complaints of disabling pain). The ALJ also considered Riggins's admission that he had
not taken prescription pain medication for years. Although Riggins claims he could not
afford such medication, there is no evidence to suggest that he sought any treatment
offered to indigents or chose to forgo smoking three packs of cigarettes a day to help
finance pain medication. See Nelson v. Sullivan, 966 F.2d 363, 367 (8th Cir. 1992)
(the mere use of nonprescription pain medication is inconsistent with complaints of
disabling pain); and Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992) (it is
inconsistent with the degree of pain and disability asserted where no evidence exists
that claimant attempted to find any low cost or no cost medical treatment for alleged
pain and disability). Therefore, we find that the evidence as a whole supports the ALJ's
conclusion that Riggins's complaints of disabling pain were not credible.

      We next turn to Riggins's second argument. Riggins contends that the ALJ's
conclusion, that a significant number of jobs in the national economy exist that Riggins
can perform, is not supported by substantial evidence because the ALJ posed an




                                          -5-
ambiguous hypothetical4 to the vocational expert. Riggins claims that this hypothetical
was defective because it did not clearly state that Riggins cannot sit for more than one
hour without interruption. Riggins also argues that the hypothetical was defective
because it did not include Riggins's complaints of disabling pain.

        The Commissioner points out that Riggins did not raise the issue of the clarity
of the ALJ's hypothetical question at the administrative level or to the district court. At
the administrative hearing, Riggins's attorney was present and had the opportunity to
request that the ALJ restate the hypothetical more specifically. Such a failure to raise
the argument at the agency level "ordinarily prevent[s] [a party] from raising it in
judicial proceedings." Weikert v. Sullivan, 977 F.2d 1249, 1254 (8th Cir. 1992)
(citation omitted). Additionally, in the district court, Riggins's only reference to the
defective hypothetical concerned the alleged failure to include Riggins's subjective
complaints of disabling pain. Accordingly, we do not believe that Riggins adequately
raised the argument regarding the hypothetical's clarity below, and we decline to review
this question. See id. (citation omitted). Even if we were to consider this argument,
we would find that the hypothetical adequately expresses a one-hour limitation on
continuous sitting.

       Next, we consider Riggins's contention that the ALJ erroneously omitted
Riggins's complaints of disabling pain from the hypothetical. We previously concluded
that substantial evidence supported the ALJ's decision not to credit Riggins's subjective
complaints of disabling pain. Accordingly, the ALJ properly did not include Riggins's
complaints of disabling pain in the hypothetical question. See Hinchey v. Shalala, 29
F.3d 428, 432 (8th Cir. 1994) (ALJ's hypothetical question need not include claimant's
subjective complaints if they are not supported by the record as a whole).


      4
       The alleged ambiguity in the hypothetical concerns the following language:
"This individual can sit up to six hours, stand and walk up to six hours, one hour
without interruptions." Tr. at 223.

                                           -6-
III.   CONCLUSION

       In summary, we hold that substantial evidence supports the ALJ's determination
that Riggins is not disabled. We further hold that the ALJ's hypothetical question was
not defective, and, thus, substantial evidence supported the finding that there is a
significant number of jobs in the national economy that Riggins can perform. The
judgment of the district court is affirmed.

       A true copy.

             Attest:



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




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