                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-1544
                                  ___________

Angeline Curran-Kicksey,              *
also known as Angeline Curran,        *
                                      *
            Appellant,                *
                                      * Appeal from the United States
     v.                               * District Court for the Southern
                                      * District of Iowa.
Jo Anne B. Barnhart,                  *
Commissioner of Social Security,      *
                                      *
            Appellee.                 *
                                 ___________

                             Submitted: October 9, 2002

                                 Filed: January 10, 2003
                                  ___________

Before HANSEN, Chief Judge, HEANEY, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                             ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Angeline Curran-Kicksey applied for disability insurance benefits and
supplemental security income based on a back injury that she allegedly suffered in a
1994 automobile accident. The Social Security Administration (SSA) denied her
application initially and on reconsideration. After a hearing, an administrative law
judge ruled that Ms. Curran-Kicksey was not disabled. Ms. Curran-Kicksey appealed
to the district court, which remanded the case to the ALJ with instructions for an
additional hearing. Following the second hearing, the ALJ discounted Ms. Curran-
Kicksey's subjective complaints of pain and ruled that she was not disabled within the
meaning of the Social Security Act because she retained the residual functional
capacity to perform work in the national economy. The Appeals Council denied her
request for review. When Ms. Curran-Kicksey appealed to the district court1 it
upheld the administrative decision.

      Ms. Curran-Kicksey now appeals to this court, arguing that her case should be
remanded to the ALJ for consideration under a recently revised listing of
impairments. She also argues that the ALJ improperly discounted her subjective
complaints of pain in determining whether she could perform work in the national
economy.

       When considering whether the ALJ properly denied social security benefits,
we review matters of law de novo and determine whether the ALJ's findings of fact
are supported by substantial evidence in the record as a whole. See Lowe v. Apfel,
226 F.3d 969, 971 (8th Cir. 2000). Because we find that the ALJ committed no legal
error and that its findings were supported by substantial evidence, we affirm.

                                          I.
       After the second evidentiary hearing, an ALJ evaluated Ms. Curran-Kicksey's
claim according to the familiar five-step analysis prescribed by SSA regulations.
20 C.F.R. § 404.1520; see, e.g., Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
The ALJ resolved the first and second steps in Ms. Curran-Kicksey's favor by finding
that she had not engaged in substantial gainful activity and that she had a medically
severe combination of impairments. The dispute between the parties began at the
third step. See 20 C.F.R. § 404.1520(d). Before the ALJ (and the district court)


      1
       The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.

                                         -2-
Ms. Curran-Kicksey argued that she met Listing § 1.05C concerning "[d]isorders of
the spine." See 20 C.F.R. Part 404, Subpt. P, App. 1, § 1.05C (2001).2 The ALJ
found, however, and the district court agreed, that Ms. Curran-Kicksey did not meet
all of the requirements of § 1.05C and thus was not conclusively presumed to be
disabled under that section. The ALJ concluded that there was no medical evidence
in the record that Ms. Curran-Kicksey suffered muscle spasm, reflex loss, or sensory
loss, all of which were required under § 1.05C.

       Having lost before the ALJ and the district court on the issue of whether she
met the requirements of § 1.05C, Ms. Curran-Kicksey has now shifted direction
somewhat and argues that § 1.05C is inapplicable to her situation: She urges us
instead to apply new musculoskeletal listings that went into effect on February 19,
2002, more than two years after the SSA's final disposition of her case. As part of the
updated musculoskeletal listings, § 1.05C was replaced by a new listing applicable
to disorders of the spine, § 1.04. See 66 Fed. Regis. 58,010, 58,017-18 (Nov. 19,
2001); 20 C.F.R. Part 404, Subpt. P, App. 1, § 1.04 (2002). This new listing relaxes
some of the requirements of § 1.05C, making it easier for a person to show disability
resulting from a spine disorder. Ms. Curran-Kicksey urges us to remand to the ALJ
for consideration of whether she meets the requirements of § 1.04.

       We feel obligated to reject this latest request by Ms. Curran-Kicksey. Even if
she would have met the requirements of § 1.04, a question we need not decide here,
it would be improper to apply § 1.04 retroactively to her claim. In publishing the new
listings, the SSA stated that "[w]ith respect to claims in which we have made a final
decision, and that are pending judicial review in Federal court, we expect that the
court's review of the Commissioner's final decision would be made in accordance

      2
       We note that Listing § 1.05, as currently numbered, pertains to amputations
and is not at issue here. See C.F.R. Part 404, Subpt. P, App. 1, § 1.05 (2002). All
references to Listing § 1.05C in the text of this opinion are to the previous version of
§ 1.05, which addressed spine disorders.

                                          -3-
with the [listings] in effect at the time of the final decision." 66 Fed. Reg. 58,010,
58,011. The SSA further stated, "We will continue to apply the current [listings] until
[February 19, 2002]. When the [new listings] become effective, we will apply them
to new applications filed on or after [February 19, 2002]." Id.

       Despite these rather explicit pronouncements authorizing only a prospective
application of the new listings, Ms. Curran-Kicksey argues that remand is dictated by
the line of cases that require us to "apply the law in effect at the time [we] render[]
[our] decision." Seniors United for Action v. Ray, 675 F.2d 186, 189 (8th Cir. 1982).
While we agree with this general legal principle, Ms. Curran-Kicksey is mistaken in
suggesting that it dictates the application of the new listings. The SSA clearly and
unambiguously explained when the new listings were issued that they apply to only
those cases that have not resulted in a final administrative decision by February 19,
2002. That is the law in effect at this time, and its application requires us to reject
Ms. Curran-Kicksey's request.

      For Ms. Curran-Kicksey to have been conclusively presumed disabled, she
must have met the requirements of § 1.05C. The ALJ and the district court found that
Ms. Curran-Kicksey did not meet those requirements, and Ms. Curran-Kicksey does
not dispute this finding or point to any medical evidence that she suffered muscle
spasm, reflex loss, or sensory loss as § 1.05C requires. We therefore conclude that
Ms. Curran-Kicksey does not have a listed impairment.

                                        II.
      Since Ms. Curran-Kicksey does not have an impairment that is conclusively
presumed to be disabling, the evaluation proceeds to the fourth step, where the
question is whether her impairment prevents her from performing work that she has
performed in the past. See 20 C.F.R. § 404.1520(e). On the strength of a vocational
expert's testimony, the ALJ "gave [Ms. Curran-Kicksey] the benefit of the doubt" and
"assumed that [she could not] perform her past relevant work." The ALJ then turned

                                         -4-
to the fifth and final step of the process to determine whether Ms. Curran-Kicksey had
the functional capacity to perform other work in the national economy. See 20 C.F.R.
§ 404.1520(f). In making this determination, the ALJ heard testimony from a
vocational expert who was asked two questions.

       In the first instance, the ALJ instructed the vocational expert to assume that a
person could lift no more than ten pounds occasionally and five pounds frequently;
could stand, walk, and sit without a problem, for one to two hours at a time; could no
more than occasionally stoop or climb; could do no kneeling or crawling; and could
not work in cold and damp environmental conditions. These instructions reflect
Ms. Curran-Kicksey's condition that the medical records documented and
Ms. Curran-Kicksey's subjective complaints to the extent that the ALJ considered her
complaints credible. Some of Ms. Curran-Kicksey's subjective complaints were
omitted from this hypothetical, however, as the ALJ deemed them to be inconsistent
with the evidence as a whole. The vocational expert testified that the person who the
ALJ hypothesized could perform work in the national economy as a statistical clerk,
night desk clerk, checker, sorter, or collection records clerk.

       In the second instance, the ALJ instructed the vocational expert to consider
those subjective complaints of Ms. Curran-Kicksey's that the ALJ had discredited and
omitted in the first instance. Of these omissions, the most significant concerned
Ms. Curran-Kicksey's testimony that she needed to lie down and rest frequently
throughout the day. The vocational expert testified that such a person would not be
able to perform work in the national economy.

       Ms. Curran-Kicksey's complaint, simply stated, is that the ALJ erred by
discrediting her subjective testimony concerning her functional capacity for working
in the national economy. As we have already said, we review the ALJ's decision to
determine whether the Commissioner's factual findings are supported by substantial
evidence on the record as a whole. See Singh v. Apfel, 222 F.3d 448, 451 (8th Cir.

                                         -5-
2000). In determining whether substantial evidence exists for the ALJ's decision, we
consider "evidence that detracts from the [Commissioner's] decision as well as
evidence that supports it." Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). "If,
after review, we find it possible to draw two inconsistent positions from the evidence
and one of those positions represents the Commissioner's findings, we must affirm
the denial of benefits." Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996).


       In evaluating a claimant's subjective allegations of pain and disability, we
follow the principles outlined in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984). An ALJ may not discount subjective complaints of pain solely because they
are not fully supported by the objective medical evidence, but such complaints may
be discounted based on inconsistencies in the record as a whole. Id. The lack of
supporting objective medical evidence may be used as "one factor to be considered
in evaluating the credibility of the testimony and complaints." Id. In addition to the
medical evidence, the ALJ is required to assess a claimant's subjective complaints in
light of her prior work record and in light of observations by third parties and
physicians relating to the claimant's daily activities, to the duration, frequency, and
intensity of pain, to any precipitating or aggravating factors, to the dosage,
effectiveness, and side effects of any medication, and to any functional restrictions.
Id.


       Ms. Curran-Kicksey maintains that the ALJ failed to analyze the evidence in
light of these considerations, and instead discounted her subjective complaints only
because they were not completely substantiated by the medical evidence. Having
reviewed the ALJ's opinion, however, it is clear to us that she thoroughly analyzed
the evidence in light of the Polaski considerations.




                                         -6-
        It is important to note first that the medical evidence does not fully substantiate
Ms. Curran-Kicksey's subjective complaints. An orthopedic surgeon examined
Ms. Curran-Kicksey immediately after her automobile accident and found that she
had degenerative changes in her neck; but it was his opinion that these injuries
existed long before the accident, when Ms. Curran-Kicksey was working full-time
without difficulty. Later, when Ms. Curran-Kicksey asked the same doctor for a
"clear statement" that she was unable to work, the doctor felt that such a statement
would be inappropriate. Instead, he expressed the opinion that she could "work as
tolerated." Although Ms. Curran-Kicksey sought further treatment from several
physicians for various symptoms that she was experiencing, she was at no time told
that she could not work. Instead, she was repeatedly encouraged to work and exercise
to an extent she found tolerable. Although it is difficult to discern from the medical
record the precise extent of Ms. Curran-Kicksey's impairments, the medical evidence
falls far short of fully substantiating her subjective complaints.


       As part of the medical evidence, the ALJ considered Ms. Curran-Kicksey's use
of prescription medication. Ms. Curran-Kicksey testified in November 1996 that she
had not taken prescription pain medication since the previous June, and she testified
in July 1999 that she used pain medication as needed. In addition, there was evidence
that Ms. Curran-Kicksey declined an opportunity to participate in physical therapy
treatment. We believe that evidence that Ms. Curran-Kicksey did not regularly
require prescription medication or physical therapy could create doubt in a reasonable
adjudicator's mind with regard to her testimony about the extent of her pain. Cf.
Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir.1998).


      The ALJ also considered Ms. Curran-Kicksey's daily activities. The ALJ first
noted that Ms. Curran-Kicksey had experienced real limitations in her ability to
perform the regular activities of daily living. But even with these limitations,
Ms. Curran-Kicksey admitted that she was able to perform a variety of activities. For

                                           -7-
example, she maintained a steady exercise program, performed light housework,
worked on a part-time basis, and volunteered for the "St. Patrick's Society." Although
participation in these activities does not dispositively show that Ms. Curran-Kicksey's
complaints of pain were exaggerated, they certainly were appropriate matters for the
ALJ to consider under Polaski.


       The ALJ found more inconsistencies in Ms. Curran-Kicksey's communications,
or lack thereof, with her doctors. Ms. Curran-Kicksey testified before the ALJ that
her need to lie down and rest throughout the day prevented her from working full-
time. She did not, however, make this complaint to any of her doctors, nor did her
doctors recommend such a course of action to her. In fact, as a response to
Ms. Curran-Kicksey's complaints of disturbed sleep, her doctors actually instructed
her to avoid taking naps and to exercise more often. The ALJ reasonably found that
this raised doubts about the credibility of her testimony. Ms. Curran-Kicksey's
credibility concerning her level of pain and discomfort was also undermined by a
statement from one of her treating doctors that she "histrionically moans and jumps
and grimaces" during examinations.


       The ALJ also considered Ms. Curran-Kicksey's work record in evaluating her
subjective complaints. The ALJ acknowledged that her strong work history tended
to "show a strong financial motivation to work which would indicate support for the
claimant's allegations of disability." This support, in the ALJ's opinion, was however
offset to some degree by Ms. Curran-Kicksey's receipt of long-term private disability
payments ($1400 per month), which the ALJ thought might have lessened her
motivation to reenter the workforce. We think that the ALJ may have overstated the
significance of the private disability payments, since Ms. Curran-Kicksey's private
disability benefits would be offset by any disability payments made by the SSA. The
ALJ also expressed concern that Ms. Curran-Kicksey's pending legal action stemming
from the 1994 automobile accident might have increased her incentive to embellish

                                         -8-
her pain, since a finding of "total disability" might bolster her private claim.
Although we have previously recognized that pending lawsuits may indicate that
there is an "element of secondary gain" in the claimant's disability claim, see Gaddis
v. Chater, 76 F.3d 893, 896 (8th Cir. 1996); cf. Dodd v. Sullivan, 963 F.2d 171, 172
(8th Cir. 1992) (per curiam), Ms. Curran-Kicksey's pending lawsuit had been settled
by the time the second hearing occurred. Thus, we do not think that Ms. Curran-
Kicksey's strong work history is significantly offset by her receipt of private disability
benefits or the settlement of her lawsuit. This does not mean, however, that the ALJ
erred in discounting her subjective complaints. As Polaski makes clear, work history
is only one factor among many to be considered.


      In sum, we believe that there is substantial evidence in record as a whole that
supports the ALJ's decision to discount Ms. Curran-Kicksey's subjective complaints
of pain.


                                           III.
      For the reasons stated, we affirm the decision of the district court.


HEANEY, Circuit Judge, dissenting.


      Although I agree with the majority’s analysis in part I, I respectfully dissent,
because Ms. Curran-Kicksey’s claim should not have been denied.


      The ALJ determined in her September 10, 1999 decision that the opinions of
Dr. Lynn Demarco and Dr. William Baird should be given more weight than Dr.
George Lawry’s, because they were “in keeping with the evidence as a whole.” The
ALJ subsequently found the claimant’s condition did not meet or equal listing 1.05C,


                                           -9-
and denied her relief on that basis. The ALJ made this determination after
acknowledging that Drs. Demarco and Baird had not actually examined Ms. Curran-
Kicksey, but had only reviewed the record. Conversely, although Dr. Lawry
personally examined and treated Ms. Curran-Kicksey, and stated an opinion as to her
ability to work, the ALJ discounted Dr. Lawry’s opinion because she believed it did
not reflect the medical evidence in the record. There is no analysis offered to support
this conclusion.


       This court has held that when adjudicating a grant or denial of social security
disability benefits, full consideration must be given to “all of the evidence presented
relating to subjective complaints, including the claimant’s prior work record, and
observations by third parties and treating and examining physicians.” Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (emphasis added). Further, “opinions
of doctors who have not examined the claimant ordinarily do not constitute
substantial evidence on the record as a whole.” Bowman v. Barnhart, 310 F.3d 1080,
1085 (8th Cir. 2002) (quoting Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000)).
The ALJ in this case appears to rely “on the opinions of non-treating, non-examining
physicians who reviewed the reports of the treating physicians to form an opinion”
of their own. Nevland, 204 F.3d at 858. What is particularly bizarre is that the ALJ
determined that Dr. Lawry’s opinion was not in keeping with the record as a whole,
despite the fact that Dr. Lawry’s examination and expressed opinions were part of the
medical record. If anything, the opinions of Drs. Demarco and Baird were not “in
keeping” with the record, and therefore do not constitute reasonable grounds for
denying Ms. Curran-Kicksey’s application. We are obligated to follow the
established principle that examining physicians’ opinions should be given greater
deference than the opinions of physicians who simply review other physicians’
records. See Bowman, 310 F.3d at 1085; Nevland, 204 F.3d at 858; Polaski, 739 F.2d
at 1322.



                                         -10-
      Polaski requires an adjudicator to consider all the evidence relating to the
claimant’s condition. Relevant factors include: the claimant’s daily activities; the
duration, frequency and intensity of the pain; precipitating and aggravating factors;
dosage, effectiveness and side effects of medication; and functional restrictions.
Polaksi, 739 F.2d at 1322. In reviewing the ALJ’s decision, it appears that she gave
Polaski mere lip service.


       First, the ALJ concluded that Ms. Curran-Kicksey was not limited in her daily
activities: “[t]hough the claimant certainly experiences limitations in her abilities to
perform activities of daily living, the claimant does admit that she can cook, likes to
read, still visits with friends, and still drives her car at least locally in the Quad Cities
area.” As an initial matter, I note the accusatory tone the ALJ takes in suggesting that
Ms. Curran-Kicksey “admitted” she can cook, likes to read, and still visits friends and
drives her car. This is not a criminal proceeding, and Ms.Curran-Kicksey is not a
defendant. More importantly, however, this court repeatedly held that the activities
to which the ALJ points do not support a finding that the claimant is able to do
sedentary work in an competitive economy on a day-to-day basis. See Thomas v.
Sullivan, 876 F.2d 666, 669 (8th Cir. 1989) (“The ability to do light housework with
assistance, attend church, or visit with friends on the phone does not qualify as the
ability to do substantial gainful activity.”); McCoy v. Schweiker, 683 F.2d 1138,
1147 (8th Cir. 1982) (en banc) (holding that the ability to do sedentary work “is the
ability to perform the requisite physical acts day in and day out, in the sometimes
competitive and stressful conditions in which real people work in the real world”).


       Next, as the majority notes, the ALJ found that:


       [Ms. Curran-Kicksey] testified before the ALJ that her need to lie down
       and rest throughout the day prevented her from working full-time. She
       did not, however, make this complaint to her doctors, nor did her doctors

                                            -11-
      recommend such a course of action to her. In fact, as a response to Ms.
      Curran-Kicksey’s complaints of disturbed sleep, her doctors actually
      instructed her to avoid taking naps and to exercise more often.


Supra, at 8. I do not think the record supports this conclusion. On June 26, 1995, Dr.
David Staub noted that Ms. Curran-Kicksey reported “ongoing fatigue.” This
language would indicate Ms. Curran-Kicksey’s need to rest during the day, and that
she told her doctors about her fatigue. It is patently unreasonable to require Ms.
Curran-Kicksey to explicitly say “I cannot work during the day without rest” in order
to find her testimony credible. Again, the ALJ appears unreasonably biased against
Ms. Curran-Kicksey.


       The ALJ next found that Ms. Curran-Kicksey declined a course of physical
therapy that was offered to her. While it is true that Dr. Staub “offered to get her
involved in a course of physical therapy to include iontophoresis and phonophoresis,”
and that Ms. Curran-Kicksey “did not want to pursue this,” Dr. Staub also reported
that Ms. Curran-Kicksey “has been forcing herself to walk for two miles” up to four
times each week. The ALJ clearly ignored the fact that Ms. Curran-Kicksey had
participated in extensive physical therapy over a period of years in an unsuccessful
effort to advance her physical condition to the point where she could return to work
on a full-time basis.3


      3
       See Administrative Record, at 152 (Dr. Timothy Millea, notes, October 17,
1994) (“She is continuing with occasional chiropractic as well as physical therapy.”);
154 (Dr. Timothy Millea, notes, Dec. 5, 1994) ( “At the current time she is involved
in physical therapy in the morning. . . .”); 155 (Dr. Timothy Millea, notes, Jan. 4,
1995) ( “She is continuing with chiropractic care once a week as well as physical
therapy three times a week. However she states that her symptoms are not improving
and that she has had worsening of her symptoms over the past few weeks.”); 158 (Dr.
Timothy Millea, notes, March 27, 1995) (“She is going to the Y on a regular basis for
aquatic therapy and feels that she is tolerating this particularly in view of improved

                                        -12-
       The ALJ made other significant mistakes. The majority correctly notes that the
ALJ “may have overstated the significance of the private disability payments, since
Ms. Curran-Kicksey’s private disability benefits would be offset by any disability
payments by the SSA.” Supra, at 8. There was no evidence to support the ALJ’s
position regarding the private disability payments or the pending lawsuit. It was
simply rank speculation on the part of the ALJ which comes close to showing bias on
her part. Unfortunately, the majority does not extend its analysis to a whole-scale
inquiry of why such obvious mistakes were overlooked by the ALJ. I do not think a
decision that is rife with factual errors warrants a finding that the ALJ’s determination
is supported by substantial evidence.




aerobic conditioning. She also works with physical therapy at NovaCare on a two
times per week basis including ultra sound, IFC and whirlpool therapy.”); 165 (Dr.
Timothy Miller, notes, March 8, 1995) (“She is currently doing at least one hour of
exercise per day.”); 167 (Dr. Timothy Miller, notes, May 17, 1995) (“She has been
staying very active continuing with her home exercise as well as working at the Y
with swimming exercises and walking a mile and a half a day.”); 171 (Dr. David
Staub, notes, June 26, 1995) (“She is trying to exercise regularly despite this as she
recognizes the importance of regular exercise. . . .”); 189 (Letter from Dr. Arthur
Searle to Brad Church, Nov. 30, 1995) (“The client was walking up to two miles at
a time until two months ago. In the past two months she hasn’t been able to tolerate
any exercise except in a swimming pool.”); 406 (Dr. David Staub, notes, Feb. 13,
1997) (“She is currently doing hydrotherapy at Truman.”).

                                          -13-
For the foregoing reasons, I dissent.


A true copy.


      Attest:


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




                                  -14-
