                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-1930
                                  ___________

Joseph R. Emily,                    *
                                    *
                  Appellant,        * Appeal from the United States
                                    * District Court for the Eastern
      v.                            * District of Missouri.
                                    *
                    *
Jo Anne B. Barnhart, Commissioner, *     [UNPUBLISHED]
Social Security Commission,         *
                                    *
                                    *
                  Appellee.         *
                               ___________

                            Submitted: November 16, 2001

                                 Filed: November 23, 2001
                                  ___________

Before WOLLMAN, Chief Judge, FAGG and BOWMAN, Circuit Judges.
                             ___________

PER CURIAM.

      In 1994, Joseph R. Emily applied for supplemental security income benefits
because of back pain, mental slowness, hearing problems, and swelling in his right
knee. Emily’s back and knee were injured over twenty years ago in two separate


      *
       Jo Anne B. Barnhart has been appointed to serve as Commissioner of Social
Security, and is substituted as appellee under Federal Rule of appellate Procedure
43(c)(2).
accidents when a concrete form struck him in the hip and a log struck him in the knee.
Emily worked after these injuries as a sewer line photo inspector, a construction
worker, a metal cleaner, and a photo-finishing splicer. After medical and
psychological evaluations, Emily was diagnosed with the following conditions related
to his claimed impairments: mild left curvature of the lumbar spine with degenerative
changes, mild narrowed intravertebral discs, incomplete fusion of the spinous
process, borderline intellectual functioning (full-scale IQ of 78) with functional
illiteracy, ear wax impaction in the right ear, and no evidence of injury to either the
bones or soft-tissue of the right knee. In addition, Emily’s recurrent chest pain was
diagnosed as being caused by either constricting chest muscles (angina) or
inflamation of the stomach (gastritis).

       The Administrative Law Judge (ALJ) initially denied benefits. The Appeals
Council declined Emily’s request for review. Emily then petitioned for judicial
review. The district court remanded the case with instructions to determine the
credibility of Emily’s wife, complete a Psychiatric Review Technique Form about
Emily’s borderline intellectual functioning, and complete the sequential evaluation
process considering the mental impairment. After a supplemental hearing and proper
sequential evaluation, the ALJ again denied benefits. The ALJ found although Emily
has severe impairments, he does not have a disabling impairment, his complaints of
pain are not fully credible, and he retains the residual functional capacity to perform
limited sedentary work available in the national economy. The Appeals Council
declined Emily’s second request for review. Emily again petitioned for judicial
review. The district court** affirmed the Commissioner’s denial of benefits, finding
substantial evidence in the record as a whole supports the Commissioner’s decision.


      **
        The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri, adopting the report and recommendation of the Honorable
Thomas C. Mummert, III, United States Magistrate Judge for the Eastern District of
Missouri.

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Emily now appeals. Having carefully reviewed the record and the parties’ briefs, we
affirm. See Hunt v. Massanari, 250 F.3d 622, 623-24 (8th Cir. 2001).

        On appeal, Emily contends that the ALJ should have determined Emily was
disabled based on Emily’s wife’s testimony and the vocational expert’s (VE) answers
to hypothetical questions. The ALJ found Emily’s wife credibly testified that Emily
was literally bed-ridden two to three days each month. The VE testified that there are
jobs available for a person with Emily’s limitations, but not for a person with Emily’s
limitations who is also bed-ridden several times each month. Because the ALJ found
there were available jobs that Emily could perform, Emily argues the ALJ relied on
the answer to the hypothetical question that did not account for the relevant fact that
he is bed-ridden several days each month. Despite Emily’s contrary contentions, we
conclude the ALJ properly posed and relied on hypothetical questions that captured
impairments substantially supported by the record. See id. at 625. Mrs. Emily’s
credible testimony about Emily’s behavior does not prove that bed rest is medically
necessary. See, e.g., 20 C.F.R. § 416.929(a) (2001). The ALJ may exclude any
alleged impairments from the hypothetical question, like the medical need for bed
rest, that she has rejected as being untrue or unsubstantiated. See Hunt, 250 F.3d at
625.

      Finding no reversible error, we thus affirm. See 8th Cir. R. 47B.

      A true copy.

             Attest:

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




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