author: HEANEY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Frank BAUMGARDNER, Appellant. UNITED STATES of America, Appellee, v. Frank BAUMGARDNER, Appellant.
    Nos. 95-2860, 95-3866.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 12, 1996.
    Decided June 5, 1996.

      Jane Kelly, Asst. Federal Public Defender, Cedar Rapids, LA, argued, for appellant.
    Mary Clare Luxa, Asst. U.S. Atty., Des Moines, IA, for appellee.
    Before MAGILL, FLOYD R. GIBSON, and HEANEY, Circuit Judges.
   HEANEY, Circuit Judge.

Frank Baumgardner appeals from Ms convictions for makmg a material false statement to the Social Security Admimstration (SSA) in violation of 18 U.S.C. § 1001 and for fraudulently concealing Ms receipt of workers’ compensation benefits in violation of 42 U.S.C. § 408(a)(4). He argues that the section 1001 conviction cannot stand because under the recent Supreme Court decision, United States v. Gaudin, — U.S. -, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), the materiality of Ms false statements is an element of the offense that must be found by the jury beyond a reasonable doubt. He also challenges the sufficiency of the evidence to support both convictions. In light of Gaudin, we vacate Baumgardner’s false statement conviction and remand for a new trial. We affirm his conviction under 42 U.S.C. § 408(a)(4), however, and remand tMs case to the district court for resentencing on that count.

I. BACKGROUND

After sustaining serious injuries from a work-related fall, Baumgardner applied for disability benefits from the SSA in 1978. The SSA demed Baumgardner’s application both imtially and on appeal, but an Admimstrative Law Judge reversed the demal and awarded him benefits m August 1979. Until 1994, Baumgardner and his dependents received monthly disability payments, rangmg from $600 to $1,393, totaling over $200,000.

In Ms benefits application, Baumgardner agreed to notify the SSA if Ms medical condition improved, if he returned to work, or if he applied for or received benefits under any workers’ compensation law. The occurrence of any one Of these events could have affected Ms eligibility status. The SSA informed Baumgardner many times of Ms duty to report changes in Ms work status and the possible consequences of failing to do so.

Despite these instructions, Baumgardner did not report that from September 1981 until February 1985, he received nearly $76,-342 m workers’ compensation benefits and $26,835 in medical payments for injuries that resulted from a trucMng accident. Although the SSA knew that Baumgardner had worked as a truck driver for nearly five months in 1979, it was not informed that he received workers’ compensation benefits or the medical payments.

In addition, Baumgardner failed to report that he began to repair, clean, and sell new and used Rainbow vacuums out of his home. Baumgardner did not report any self-employment income to the SSA until it contacted him in April 1992. Even when confronted by the SSA, Baumgardner maintained that his work with vacuums was merely a hobby, from which he did not derive any income. Specifically, in response to questions on a SSA work activity report completed by Baumgardner in 1992, he stated that there were no months from January 1979 until April 1992 in which he had made more than $75 or worked more than fifteen hours.

Baumgardner’s responses on the work activity report sparked a two-year investigation of Baumgardner’s self-employment, which culminated in the underlying two-count indictment. The government charged Baumgardner with making a false statement to a government agency in violation of 18 U.S.C. § 1001 for reporting that there were no months in which he earned more than $75.00 or worked more than fifteen hours. He was also charged with concealing the receipt of workers’ compensation benefits with the fraudulent intent to secure payment in a greater amount than was due him in violation of 42 U.S.C. § 408(a)(4). After a jury trial, he was convicted of both offenses. He was sentenced to twenty-three months imprisonment and three years supervised release. He was also ordered to pay over $200,000 in restitution.

At the time of Baumgardner’s trial, the Eighth Circuit — and every other circuit but the Ninth — considered materiality under section 1001 to be a question of law for the district court. United States v. Johnson, 937 F.2d 392, 396 (8th Cir.1991); see also, United States v. Gaudin, 28 F.3d 943, 955 (9th Cir.1994) (en banc) (Kozinski, J., dissenting) (citing authority from each circuit), aff'd, — U.S. -, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). Accordingly, the district court decided that the alleged false statement was material and did not instruct the jury on this element. After Baumgardner’s conviction, the Supreme Court decided United States v. Gaudin, — U.S. -, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), in which it held that failure to submit the issue of materiality of an alleged section 1001 violation to the jury violated the defendant’s Fifth Amendment right to due process of the law and his Sixth Amendment right to have a jury determine guilt of every element of the crime charged. Id. at -, 115 S.Ct. at 2320. In light of Gaudin, Baumgardner filed a motion for a new trial with the district court, which was denied. This appeal follows.

II. DISCUSSION

On appeal, Baumgardner challenges both the district court’s failure to instruct the jury on the element of materiality and the sufficiency of the evidence to support either conviction.

A. Gaudin Error

As the Supreme Court instructed in United States v. Gaudin, the district court’s decision to remove the issue of materiality from the jury violated Baumgardner’s Sixth Amendment right to have a jury determine guilt beyond a reasonable doubt of every element of the crime charged. See Gaudin, — U.S. at -, 115 S.Ct. at 2320; United States v. Raether, 82 F.3d 192, 193-94 (8th Cir. 1996). Because Baumgardner’s counsel did not object to the court’s decision at trial, however, we must review this issue under the plain error standard of Rule 52(b) of the Federal Rules of Criminal Procedure. This court has the limited authority to correct forfeited errors when (1) there was an error at trial, (2) the error is plain, and (3) the error affected the defendant’s substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993); United States v. Ryan, 41 F.3d 361, 366 (8th Cir.1994) (en banc), cert. denied, — U.S. -, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995). In addition, we should not exercise our authority under 52(b) unless the error results in a miscarriage of justice or “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Olano, 507 U.S. at 732, 113 S.Ct. at 1776 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)).

Because the district court’s failure to submit the question of materiality to the jury deviates from the Supreme Court’s decision in Gaudin, the first prong of the Olano standard is met. We next consider whether this error is “plain.” In this case, the question turns on whether we look to the law at the time of the trial or on appeal. At trial, the district court’s decision was in accord with our circuit’s firmly established law— materiality in a section 1001 case was a matter of law decided by the court. Johnson, 937 F.2d at 396. On appeal, with the benefit of hindsight, the district court’s decision constitutes clear error. Gaudin, — U.S. at -, 115 S.Ct. at 2320.

The Olano Court explicitly acknowledged, but left unanswered, this precise situation:

We need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified. At a minimum, the Court of Appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.

Olano, 507 U.S. at 734, 113 S.Ct. at 1777. Most circuits that have addressed this open question have permitted discretionary review of errors that become plain on appeal because of a change in settled law. United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994) (plain error determined according to the law at the time of appeal), cert. denied, — U.S. -, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995); United States v. Retos, 25 F.3d 1220, 1230 (3d Cir.1994) (same); United States v. Jones, 21 F.3d 165, 173 & n. 10 (7th Cir.1994) (same); but see United States v. Calverley, 37 F.3d 160, 162-63 & n. 18 (5th Cir.1994) (en banc) (plainness viewed from perspective of law at the time of trial, but not specifically addressing open question), cert. denied, — U.S. -, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995); United States v. Marder, 48 F.3d 564, 573 (1st Cir.), (question left unanswered), cert. denied, — U.S. -, 115 S.Ct. 1441, 131 L.Ed.2d 320 (1995); United States v. Washington, 12 F.3d 1128, 1139 (D.C.Cir.), (creating a special, supervening-decision doctrine to provide the defendant with the benefit of a change in law), cert. denied, — U.S. -, 115 S.Ct. 98, 130 L.Ed.2d 47 (1994).

With the benefit of the varied analyses provided by our sister circuits, we now hold that the plain error prong of the Olano standard should be determined in accordance with the law at the time of appeal. This approach is consistent with the practical considerations of judicial proceedings. Given this court’s holding in Johnson, an objection at trial would have been pointless. The more stringent prerequisites imposed by Rule 52(b), as compared to Rule 52(a), are designed to encourage a defendant to raise objections during the proceeding where they might be corrected, rather than strategically to withhold an objection as a basis of appeal. See Viola, 35 F.3d at 42. By contrast, to require a defendant to raise all possible objections at trial despite settled law to the contrary would encourage frivolous arguments, impeding the proceeding and wasting judicial resources. Id. The time-of-appeal approach also recognizes the principle that a new rule for the conduct of criminal prosecutions should be applied retroactively to all eases on direct appeal. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). Accordingly, the district court’s failure to submit the issue of materiality to the jury constitutes a clear error under the current law and thus meets the second prong of the Olano test.

Having determined that the district court’s decision constituted plain error, we must now address whether it affected Baumgardner’s substantial rights. Generally this prong of the Rule 52(b) analysis requires a showing that the error was prejudicial — that it affects ed the outcome of the trial. Olano, 507 U.S. at 734, 113 S.Ct. at 1777-78. The prejudice analysis under Rule 52(b) is nearly identical to that under Rule 52(a), or harmless error, with the crucial distinction that under Rule 52(b), the defendant bears the burden of persuasion. Id.

Our circuit has recently held that Gaudin errors are trial errors subject to harmless error review. Raether, 82 F.3d at 194 (reviewing the error under 52(a)); but see United States v. Wells, 63 F.3d 745, 751 (8th Cir.1995) (vacating, without harmless error discussion, convictions in which the element of materiality was removed from the jury), cert. granted, — U.S. -, 116 S.Ct. 1540, 134 L.Ed.2d 645 (1996). Applying the analysis of Raether, we conclude that the Gaudin error in this case was not harmless. For an error to be harmless, it must be unimportant in relation to everything else the jury considered on the issue in question. Yates v. Evatt, 500 U.S. 391, 406, 111 S.Ct. 1884, 1894, 114 L.Ed.2d 432 (1991). The record in this case does not reflect that the jury made an independent determination on the issue of materiality. To be sure, “the jury did not make any findings that are so closely related to the materiality issue that they are functionally equivalent to a materiality finding.” Raether, 82 F.3d at 194. In fact, the government presented such minimal evidence of materiality at trial that it is questionable whether the evidence even would have supported a jury finding on that issue. It is not our role to speculate as to what the jury would have decided if the district court had properly instructed them. Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S.Ct. 2078, 2082-83, 124 L.Ed.2d 182 (1993). “No matter how overwhelming the evidence of materiality, the district court was not permitted to direct a finding for the Government on this element.” Raether, 82 F.3d at 193 (citing Sullivan, 508 U.S. at 277, 113 S.Ct. at 2080).

Although we acknowledge that an affeeting-substantial-rights inquiry is governed by a harmless error analysis, see Raether, 82 F.3d at 194, we question whether a Gaudin error could ever be considered harmless. Our court, in Wells, implicitly recognized the futility of applying the harmless error inquiry to a Gaudin error when it vacated a defendant’s convictions without discussion of harmless error. Wells, 63 F.3d at 751 (holding Gaudin “dictates that we vacate defendants’ convictions”). Where the issue of materiality is completely removed from the jury’s deliberation and no other element of the offense is so similar to that of materiality that the jury would make factually equivalent findings, it is unlikely that it could ever be argued that, had it been instructed properly, the jury would have found materiality beyond a reasonable doubt. As the Supreme Court explained in Sullivan, where “there is no object, so to speak, upon which harmless-error scrutiny can operate,” the inquiry is meaningless. 508 U.S. at 279-81, 113 S.Ct. at 2082. Therefore, we hold that the error in this case was not harmless and that Baumgardner’s substantial rights were violated.

Finally, we will exercise our authority to correct the error only if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 736, 113 S.Ct. at 1779 (quoting Atkinson, 297 U.S. at 160, 56 S.Ct. at 392). Here, where a defendant has been denied his Fifth Amendment right to due process of the law and his Sixth Amendment right to a jury determination of an important element of the crime, the integrity of the judicial proceeding is jeopardized. Gaudin, 28 F.3d at 952; Retos, 25 F.3d at 1232; Jones, 21 F.3d at 173; but see Marder, 48 F.3d at 575. Particularly in this case, where we cannot be certain that the court even knew the definition of materiality, see infra note 1, and the evidence of materiality was slim, see infra note 3, we are concerned with the effect of the district court’s error on the judicial proceeding. We must therefore correct the district court’s error. Accordingly, we vacate Baumgardner’s section 1001 conviction and reverse the district court’s denial of a new trial.

B. Sufficiency of the Evidence

Baumgardner also challenges the sufficiency of the evidence to support both offenses. Because we have vacated the section 1001 conviction, we need only address his arguments with respect to his conviction under 42 U.S.C. § 408(a)(4).

In reviewing the sufficiency of the evidence, we determine whether any rational juror could have found the essential elements of the crime beyond a reasonable doubt, considering the evidence taken in a light most favorable to the verdict. United States v. Broyles, 37 F.3d 1314, 1317 (8th Cir.1994) (quoting United States v. Has No Horse, 11 F.3d 104, 106-07 (8th Cir.1993)), cert. denied, — U.S. —, 115 S.Ct. 1441, 131 L.Ed.2d 320 (1995). For a conviction under 42 U.S.C. § 408(a)(4), the government must prove the following:

(1) the defendant had knowledge of an event affecting his right to receive or to continue to receive payments;
(2) the defendant knowingly concealed or failed to disclose this event to the Social Security Administration; and
(3) the defendant concealed or failed to disclose this event with the intent to fraudulently secure payment of Social Security disability benefits in an amount greater than was due him or when no payment to him was authorized.

United States v. Phillips, 600 F.2d 535, 536 (5th Cir.1979) (setting out elements under prior codification of 408(a)(4)).

Baumgardner argues that the government did not prove that he failed to report his receipt of the workers’ compensation benefits to the SSA. At trial, he testified that he had reported the benefits to the SSA in a phone conversation with SSA claims representative, Carolyn Hoard, during which they discussed his employment as a truck driver. (Trial Tr. at 357). Hoard, however, testified that Baumgardner did not mention the workers’ compensation benefits and that, if he had, she would have so indicated on her report of contact with him. (Trial Tr. at 112). This issue required the jury to assess the relative credibility of the two witnesses. Because the jury had reason to discredit Baumgardner’s testimony on this point, we do not upset its finding. See United States v. Schindler, 77 F.3d 245, 247 (credibility determinations best made by jury or trial judge who observed the proceedings).

Baumgardner also argues that the government did not prove that he knowingly concealed the receipt of workers’ compensation benefits with the fraudulent intent to receive disability benefits to which he was not entitled. He claims that even if he did not tell SSA personnel, he thought the SSA knew of the workers’ compensation benefits, thereby relieving him of his reporting obligations. Testimony at trial, including a detailing of Baumgardner’s numerous bank accounts and his statements to his daughters regarding his need to keep his money spread out, provided a sufficient basis from which the jury could have reasonably inferred that Baumgardner’s omission was intentional and that he knew the workers’ compensation benefits could affect his disability benefits. Therefore, we conclude that the evidence on this count was sufficient to support the conviction.

III. CONCLUSION

Accordingly, we vacate Baumgardner’s section 1001 conviction and remand to the district court for a new trial. Additionally, we affirm Baumgardner’s conviction under 42 U.S.C. § 408(a)(4) and remand to the district court for resentencing and a new computation of restitution for that count.

      . At trial, however, there seemed to be a question as to the definition of materiality and what evidence would support that element of the offense. In response to one of defense counsel’s objections to the jury instructions, the court stated: "To tell you the truth, I would hate to give you a definition of materiality right now, and I don’t think it is an element, so I don’t know why we have it." (Trial Tr. at 590-91). The government then informed the court that Eighth Circuit law “recommends" that it make a finding of materiality on the record before the case is submitted to the jury, to which the court responded:
      The statements in the evidence alleged to be fraudulent or alleged not to have been made that should have been made I find to be material, whatever that is. No, seriously, I think there isn’t really an issue here of materiality. The issues are pretty well defined by the way the case has been presented, which is well presented.
      (Trial Tr. at 591). In addition, in the presentation of its case, the government argued that the amount of disability payments Baumgardner received during the relevant time period not only went to his motive or intent in making the false statement but to the issue of materiality. (Trial Tr. at 346). Essentially, the government argued that because the SSA continued to make disability payments to Baumgardner, the false statement was material. Such a position does not reflect the definition of materiality recognized by the Supreme Court. For a statement to be material under section 1001, it must have the natural tendency to influence, or capability of influencing, a governmental agency's decision or performance of an agency function. Gaudin, - U.S. at -, 115 S.Ct. at 2313 (quoting Kungys v. United States, 485 U.S. 759, 770, 108 S.Ct. 1537, 1546, 99 L.Ed.2d 839 (1988)); Johnson, 937 F.2d at 396.

      . We note that the Second Circuit reverses the burden-shifting of Rule 52(b) when an intervening decision alters a settled law. United States v. Viola, 35 F.3d 37, 42 (2d. Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995). It shifts the burden back to the government to demonstrate prejudice, recognizing that a defendant should not be penalized for failing to challenge entrenched precedent. Id. Our analysis today focuses on the absence of any jury instruction closely analogous to the materiality issue. Therefore, although we find the Viola analysis persuasive, we leave the issue of burden-shifting for another day.

      . The only evidence at trial that supported a finding of the materiality of Baumgardner’s false statement was the testimony of SSA employees that explained the significance of the question on the work activity report. As explained at trial, $75 or fifteen hours per month is the guideline for determining whether someone has used a trial work period month. (Trial Tr. at 78, 114). See 42 U.S.C. §§ 422(c), 423(e)(1); 20 C.F.R. §§ 404.1592a, 404.1594 (governing trial work period assessments). The government did not introduce evidence to explain specifically how or the extent to which an accurate answer on the work activity report would have affected Baumgardner's disability payments.

      .The district court's finding of materiality was similarly weak. In deciding the matter, the court indicated that it was not aware of the recognized definition of materiality or what evidence would support such a finding. See infra note 1.

      . Gaudin errors are readily distinguishable from faulty jury instruction cases. In such cases, the appellate court can review the instructions as a whole to determine whether another instruction cured the faulty instruction. For example, in United States v. Williams, 935 F.2d 1531 (8th Cir.1991), cert. denied, 502 U.S. 1101, 112 S.Ct. 1189, 117 L.Ed.2d 431 (1992), our court held that failure to include intent to defraud as an essential element of the offense in one instruction was harmless because other instructions essentially cured the court's defect. Id. at 1535-36. The instructions, read together, adequately apprised the jury that it must find intent beyond a reasonable doubt. Id. In addition, the questions the jury asked the court during deliberation indicated that the jury understood intent to defraud was an essential element. Id. Similarly, in Redding v. Benson, 739 F.2d 1360 (8th Cir.1984), cert. denied, 469 U.S. 1222, 105 S.Ct. 1210, 84 L.Ed.2d 352 (1985), although the district court did not properly instruct the jury on the offense charged, our court found the error to be harmless in light of the fact that the jury specifically made the finding left out of the instructions. The property offense required a finding that the value of the stolen property was in excess of $1,000, and the jury found it to be worth $12,000. Id. at 1363. Thus, in Redding we concluded that the "jury’s critical factfinding function was not thwarted.” Id. at 1364.

      . The court, in this case, removed any references to materiality from the instructions on section 1001 because it determined that they would confuse the jury. (Trial Tr. at 591). The only mention of materiality was in the indictment, which standing alone is insufficient to cure the court’s defect.


source: Caselaw Access Project

author: McMILLIAN, Circuit Judge.

license: Public Domain

text:
    Michael AUCUTT, Appellant, v. SIX FLAGS OVER MID-AMERICA, INC., a Missouri corporation in good standing, Appellee. Equal Employment Advisory Council, Amicus Curiae.
    No. 95-1255.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 16, 1995.
    Decided June 5, 1996.

      Paul Ground, Manchester, MO, argued, for appellant.
    Thomas Walsh, St. Louis, MO, argued (Paula Finlay Luepke, on the brief), for appellee.
    Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
   McMILLIAN, Circuit Judge.

Michael Aucutt appeals from a final judgment entered in the United States District Court for the Eastern District of Missouri granting summary judgment in favor of Six Flags over Mid-America, Inc. (Six Flags). Aucutt v. Six Flags Over Mid-America, Inc., 869 F.Supp. 736, 744 (E.D.Mo.1994). For reversal, plaintiff argues the district court erred in holding that (1) plaintiff had failed to establish a prima facie case on his Age Discrimination in Employment Act (ADEA) claim or, in the alternative, had faded to rebut the legitimate, nondiscriminatory reason for his termination proffered by defendant and (2) plaintiff had failed to establish a prima facie case of disability discrimination in violation of the Americans with Disabilities Act (ADA). For the reasons discussed below, we affirm the judgment of the district court.

I. Background

After a career in the United States Army, Aucutt was hired by Six Flags in April 1990 as a seasonal security guard at its amusement park in Eureka, Missouri. At the time he was hired, Aucutt was 41 years old. In May 1990, Six Flags made Aucutt a full-time security guard. His duties in this position included patrolling the amusement park and its parking lot. Aucutt held this position until October 1992, when he was discharged, at the age of 44.

During his employment at Six Flags, Aucutt was diagnosed with high blood pressure, angina, and coronary artery disease. He informed his supervisors at Six Flags of these medical conditions. In July 1991, Aucutt became ill while at work. He was transported to a hospital, treated for high blood pressure and released after several days. He returned to work approximately three weeks later with a doctor’s statement releasing him for work and stating that he should not lift more than twenty-five pounds. Aucutt alleges that when he returned to work, Tom Robertson, the vice-president of Six Flags, initially told him that he would be discharged but later informed him that he would not be discharged after all. Aucutt also alleges that on the same day, Keith Hendricks, the Admissions Supervisor, told him that the “insurance people did not want him back [at] ... work.” Joint App. 45-46. Six Flags denies these allegations. It is undisputed, however, that Six Flags refused Aucutt’s repeated requests to be allowed to drive air-conditioned vehicles on warm days. Six Flags was also aware that Aucutt could not perform a “streams course,” a mandatory employee obstacle course, without experiencing severe pain.

At the end of the 1992 season, William Haviluk, the General Manager of the Six Flags in Eureka reviewed the park’s operating results and decided to engage in a reduction-in-foree (RIF) at the park. Haviluk implemented layoffs which affected several of the park’s departments. He directed Mike Chilovich, the Manager of Security, to reorganize the Security Department. It was decided that three security positions (two sergeants and one officer) would be eliminated as part of the RIF. In October 1992, after evaluating the officers and sergeants under his supervision, Chilovich concluded that Aucutt would be terminated. Chilovich Aff. ¶ 12. According to Chilovich, Aucutt was selected because of his low productivity and abrasive, “militaristic” attitude towards park patrons. For example, on one occasion Aucutt had made patrons perform push-ups in the parking lot; he had also conducted several unauthorized searches of patrons’ vehicles for liquor. Chilovich Aff. ¶ 7-8. Although Chilovich had not personally observed these incidents, he did counsel Aucutt about his negative attitude at work. In February 1992, Chilovich specifically informed Aucutt that a failure to improve his work attitude would result in termination. Chilovich Aff. ¶ 11. However, according to Six Flags, Aucutt continued to demonstrate an abrasive demeanor while on duty.

When Chilovich recommended Aucutt for layoff in October 1992 as part of the RIF, Haviluk concurred. At the time of his layoff, Aucutt was 44 years old and the oldest uniformed security officer at the park. Eight months later, following the termination of another uniformed security officer, a long-term Six Flags employee below the age of 40 was transferred into the Security Department as a uniformed security officer.

After exhausting his administrative remedies, Aucutt instituted the present action on September 24, 1993, in the United States District Court for the Eastern District of Missouri, alleging his layoff was discriminatorily based upon his age and his medical conditions, in violation of the ADEA and ADA, respectively. On December 6, 1994, upon motion by Six Flags, the district court entered summary judgment in favor of Six Flags, holding that Aucutt had faded to establish a prima facie ease of discrimination under either the ADEA or the ADA. Further, the district court found that even if Aucutt had established a prima facie case of age discrimination, he had failed to rebut the legitimate, nondiscriminatory reasons for his layoff articulated by Six Flags. Op. at 1318, 1320. This timely appeal followed.

II. Discussion

A. Standard of Review

We review a grant of summary judgment de novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992); St. Paul Fire & Marine Insurance Co. v. FDIC, 968 F.2d 695, 699 (8th Cir.1992). Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Crain v. Board of Police Comm’rs, 920 F.2d 1402, 1405-06 (8th Cir.1990).

B. ADEA Claim

On appeal, Aucutt contends that the district court erred in granting summary judgment in favor of Six Flags on his ADEA claim for three reasons. First, he argues the district court faded to apply the proper standard for determining whether a motion for summary judgment should be granted. According to Aucutt, the district court neither viewed the facts in the light most favorable to him as the non-movant, nor resolved evidentiary conflicts in his favor. Second,-Aucutt argues the district court erroneously concluded that he had faded to establish a prima facie case of age discrimination in violation of the ADEA or, alternatively, that he had faded to rebut the legitimate, nondiscriminatory reason for his layoff articulated by Six Flags. Finady, Aucutt maintains that statements in Chdovich’s affidavit describing Six Flags’ nondiscriminatory reason for its selection of Aucutt for discharge were improperly credited by the district court, because these statements were not based on Chdovich’s personal knowledge, as required by Fed.R.Civ.P. 56(e). We consider each argument in turn.

1. Standard of Review Employed by District Court

Aucutt first argues that the district court, in considering Six Flags’ motion for summary judgment, faded to review the facts in a light most favorable to him, the party opposing the motion, and give him the benefit of ad reasonable inferences supported by the facts. See Didier v. J.C. Penney Co., 868 F.2d 276, 279-80 (8th Cir.1989). More particularly, Aucutt contends that the district court, in considering his performance evaluations, gave undue weight to the portions describing his “negative, militaristic” attitude but faded to give sufficient weight to the portions stating that he had “made progress as a security officer.” Appedant’s Add. 11; Joint App. 65. He also maintains that the district court improperly disregarded the statements adegedly made by Robertson and Hendricks in July 1991 as evidence of age-based discriminatory animus.

Plaintiffs arguments are without merit. Although the district court was required to consider ad facts in the dght most favorable to Aucutt, it was not required to ignore undisputed evidence in the record indicating that Aucutt had repeatedly demonstrated a hostde attitude towards park patrons.

Similarly, the district court properly disregarded the statements allegedly made by Robertson and Hendricks, in dght of the principles set forth in Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir.1991) (Beshears). In Beshears, we distinguished between “[c]omments which demonstrate a ‘discriminatory animus in the decisional process’” from “ ‘stray remarks in the workplace,’ ‘statements by nondecisionmakers,’ or ‘statements by decisionmakers unrelated to the decisional process.’ ” Id. (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 1804-05, 104 L.Ed.2d 268 (1989) (O’Connor, J., concurring)); Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir.1993) (Radabaugh) (documents authored by company president emphasizing young age of managers as one of company’s strengths constituted evidence of age-based discriminatory animus). In the present case, the alleged remarks of Robertson and Hendricks were made fourteen months before Aucutt’s termination, and neither Robertson nor Hendricks was involved in the decision to terminate Aucutt in October 1992. Moreover, these statements do not evince any discriminatory animus with respect to age. Thus, even if made, these statements constitute “stray remarks in the workplace [or] statements by nondecisionmakers” and were therefore properly disregarded by the district court. Beshears, 930 F.2d at 1354. We therefore hold that the district court properly applied the summary judgment standard in the present ease.

2. Merits of ADEA Claim

Aucutt next contends that the district court erred in determining that he had failed to present a prima facie case of age discrimination in violation of the ADEA or, alternatively, that he had failed to show that the legitimate reason for his discharge articulated by Six Flags was a pretext for age discrimination. See Op. at 1318. We disagree.

The burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), for Title VII discrimination cases also governs age discrimination claims under the ADEA. Holley v. Sanyo Mfg., Inc., 771 F.2d 1161, 1164 (8th Cir.1985) (Holley). The plaintiff must first establish a prima facie case of age discrimination. In order to establish a prima facie case, an age-discrimination plaintiff such as Aucutt, who was dismissed pursuant to a RIF, must show that: (1) he or she was at least 40 years old at the time of discharge; (2) he or she satisfied the applicable job qualifications; (3) he or she was discharged; and (4) “provide some additional showing that age was a factor in the termination.” Nitschke v. McDonnell Douglas Corp., 68 F.3d 249, 251 (8th Cir.1995) (Nitschke) (quoting Holley, 771 F.2d at 1165). If the plaintiff establishes a prima facie case, the employer has the burden of producing evidence that the plaintiff was discharged “for a legitimate, nondiseriminatory reason.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993) (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981)). The burden then shifts to the plaintiff to prove that the reason articulated by the employer was a pretext for age-based discrimination. Nitschke, 68 F.3d at 251; Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 777 (8th Cir.1995).

We will assume for purposes of this appeal that Aucutt has established a prima facie case of age discrimination. Even granting him this assumption, the district court properly entered summary judgment in favor of Six Flags on the issue of pretext. Six Flags submits that it discharged Aucutt pursuant to a RIF caused by a decline in business in the 1992 season. According to Chilovich, the Manager of Security at the Six Flags in Eureka, Aucutt was selected for termination because of his failure to correct his negative work attitude after repeated admonitions, including a corrective counseling session in February 1992. Chilovich Aff. ¶ 12. Noting that Aucutt had conducted unauthorized searches of patrons’ cars in the parking lot, had made park guests perform “push-ups” on at least one occasion, and had often criticized Six Flags’ procedures, Chilovich stated that he had recommended Aucutt for termination, and the General Manager had agreed, because Aucutt’s behavior was inconsistent with the company’s public relations and safety policies. Chilovich Aff. ¶¶ 7, 12.

Because Six Flags presented a legitimate, nondiscriminatory reason for Aucutt’s termination, the burden shifted to Aucutt to demonstrate the existence of a factual issue as to whether this explanation was a pretext for age-based discrimination. Although Aucutt questions Chilovich’s personal knowledge of the “push up” incident, he does not deny having engaged in any of the “militaristic” conduct described by Chilovich. Bather, he merely alleges pretext on the basis that Six Flags retained two younger security officers who had inferior job performance evaluations. Yet we note that these officers were only ranked below Aucutt in one category; nor did they demonstrate the negative work attitude for which Aucutt had often been admonished. More importantly, however, Aucutt has not presented any evidence that Six Flags harbored age-based discriminatory animus. This court may not second-guess an employer’s personnel decisions, unless such decisions are based upon unlawful discrimination. See Walker v. AT & T Technologies, 995 F.2d 846, 850 (8th Cir.1993). Upon careful de novo review, we hold that the district court correctly determined that Aucutt has not presented sufficient evidence to create a genuine issue of material fact that Six Flags’ articulated reason for his discharge was a pretext for age-based discrimination.

3. The Chilovich Affidavit

Aucutt contends that the district court erred in crediting the reasons for his termination given by Chilovich in his affidavit. Noting that Fed.R.CivJP. 56(e) requires that affidavits supporting motions for summary judgment be made on personal knowledge, Aucutt argues that Chilovieh’s affidavit does not meet this requirement because Chilovich lacked personal knowledge of the “push-up” incident described in his affidavit. Chilovich made the following statement in paragraph eight of his affidavit:

It came to my attention that while patrolling the parking lot, Michael Aucutt encountered four young guests in military uniforms. It also came to my attention that after concluding that they had violated a rule, he informed them that he was a former Army Sergeant, he had the authority to discipline them as their military superior, and then commenced giving orders to perform calisthenic “push-ups”, (which the guests then did), in the Six Flags parking lot.

Chilovich Aff. ¶ 8. Chilovich recounted the “push-up” incident as one of several examples of Aucutt’s failure to improve his hostile demeanor towards park patrons, which was the primary reason why he was selected for layoff in the October 1992 RIF. Aucutt contends that because Chilovich did not personally observe the “push-up” incident described in the affidavit, the district court improperly considered the affidavit in deciding to grant summary judgment in favor of Six Flags.

Six Flags responds that Chilovich’s affidavit comports with Fed.R.Civ.P. 56(e), because it was based on Chilovieh’s personal knowledge of the reasons for the decision to lay off Aucutt. We agree. Fed.R.Civ.P. 56(e) requires that affidavits supporting or opposing a motion for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Fed.R.Civ.P. 56(e). In evaluating evidence related to possible summary judgment, a court may not consider affidavits that do not satisfy the requirements of Fed.R.Civ.P. 56(e). See El Deeb v. University of Minnesota, 60 F.3d 423, 428-29 (8th Cir.1995); Cummings v. Roberts, 628 F.2d 1065, 1068 (8th Cir.1980). The district court in the present case properly considered Chilovich’s affidavit, because it was based on Chilovich’s personal knowledge of the reasons underlying the challenged employment decision. As the Manager of the Security Department, Chilovich was directed to select two sergeants and one officer to be laid off as part of the October 1992 RIF. He evaluated the personnel file and performance of each employee under his supervision and decided to lay off Aucutt. In his affidavit, Chilovich indicated that he had repeatedly admonished Aucutt to improve his demeanor towards park guests while performing his security duties, yet Aucutt had failed to do so. For example, Chilovich stated, “Even after I reminded Aucutt several times not to conduct vehicle searches, I still found him in the parking lot searching vehicles.” Chilovich Aff. ¶7. He further stated that he chose Aucutt for termination because Aucutt had “continued to demonstrate a negative attitude and an unwillingness to cooperate with Six Flags’ policies and goals....” Chilovich Aff. ¶ 12. Thus, Chilovich had firsthand knowledge of the reasons why Aucutt was selected for discharge. Fed.R.Civ.P. 56(e) does not require Chilovich to have witnessed every incident supporting the termination decision, so long as he had personal knowledge that the decision was for reasons unrelated to age-based discrimination. Cf. Gill v. Reorganized School Dist., 32 F.3d 376, 379 (8th Cir.1994) (school superintendent who discharged plaintiff teacher after receiving report that student had accused plaintiff of making racially derogatory remarks satisfactorily rebutted plaintiffs prima facie case with a legitimate reason for plaintiffs discharge; superintendent need not have observed incident in question, because crucial issue was “whether [the reported incident] was the real reason for [Gill’s] termination and not a pretext for [race] discrimination”).

In light of the foregoing, we hold that the district court did not err in considering Chilovich’s affidavit in support of Six Flags’s motion for summary judgment. We further hold that the district court properly entered summary judgment in favor of Six Flags on Aueutt’s ADEA claim.

C. ADA Claim

Finally, Aucutt challenges the district court’s granting summary judgment in favor of Six Flags on his ADA claim. The district court concluded that Aucutt had not established a prima facie case of disability discrimination, because he had failed to show that he suffered from a “disability” within the meaning of the ADA. Slip op. at 19. A plaintiff may use the McDonnell Douglas Corp. v. Green burden-shifting framework described above to prove a claim of intentional disability discrimination. See Price v. S-B Power Tool, 75 F.3d 362, 364-65 (8th Cir.1996), petition for cert. filed, 64 U.S.L.W. 3765 (U.S. Apr. 29, 1996) (No. 95-1782). To establish a prima facie case under the ADA, a plaintiff must show that: (1) he or she is a “disabled” person within the meaning of the ADA; (2) he or she is qualified to perform the essential functions of the job (either with or without reasonable accommodation); and (3) he or she has suffered an adverse employment action under circumstances from which an inference of unlawful discrimination arises. See id. (citing Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.1995)). In order to establish a prima facie case in a RIF situation, the plaintiff must also show that his or her disability was a determining factor in his or her termination. See Johnson v. Minnesota Historical Soc’y, 931 F.2d 1239, 1243 (8th Cir.1991).

The ADA defines a “disability” as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or being regarded as having such an impairment.” 42 U.S.C. § 12102(2)(A)-(C). It is undisputed that Aucutt suffers from angina, high blood pressure, and coronary artery disease. The district court held that Aucutt was not “disabled” within the meaning of the ADA, because he had presented no evidence suggesting that his medical problems “substantially limit[ed]” one or more of his “major life activities.” Op. at 1320. Emphasizing that he could not complete the “streams course” without experiencing severe pain, Aucutt argues that his medical problems constitute “disabilities]” as defined in 42 U.S.C. § 12102(2)(A). Alternatively, he contends that because Six Flags was aware of his medical problems, his difficulty performing the streams course, and his requests for an air-conditioned vehicle, he was “regarded” as having an impairment which substantially limited one or more of his major life activities. 42 U.S.C. § 12102(2)(C). We think Aucutt’s arguments are without merit.

Because the ADA does not define the term “major life activities,” we are guided by the definition provided in 29 C.F.R. § 1630.2, the Equal Employment Opportunity Commission (EEOC) regulations issued to implement Title I of the ADA. See 42 U.S.C. § 12116 (requiring EEOC to issue regulations implementing ADA). As defined in 29 C.F.R. § 1630.2(i), the phrase “major life activities” means “functions such as earing for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing learning, and working.” 29 C.F.R. § 1630.2(i). The regulations further provide that “[t]he inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” 29 C.F.R. § 1630.2(j)(3)(i). Rather, a person claiming a disability must show that the impairment “significantly restrict[s] [his or her] ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” Id; see also Bolton v. Scrivner, Inc., 36 F.3d 939, 942-44 (10th Cir.1994) (Bolton) (work-related injury preventing employee from performing his job as order selector in grocery warehouse was not substantial limitation in major life activity of working, as required for unlawful discharge claim under ADA, absent evidence showing restriction in ability to perform class of jobs or broad range of jobs in various classes), cert. denied, — U.S. -, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995). Finally, the EEOC regulations state that the following factors should be considered in determining whether an individual is substantially limited in a major life activity: (i) the nature and severity of the impairment, (ii) its duration or expected duration, and (iii) its actual or expected long-term impact. 29 C.F.R. § 1630.2(j)(2).

Aucutt has not presented any evidence indicating that his angina, high blood pressure, and coronary artery disease place a significant restriction on his ability to perform any of the basic functions enumerated in 29 C.F.R. § 1630.2(i). His difficulty completing the “streams course” hardly constitutes the requisite showing that his medical condition substantially limited his overall employment opportunities. See Bolton, 36 F.3d at 943. We note, for example, that a 25-pound lifting restriction was the only medical limitation placed upon Aucutt’s activities after his hospitalization in July 1991. Nor has Aucutt attempted to show that his angina, high blood pressure, and coronary artery disease pose a significant restriction on his ability to carry out other major life activities, such as walking, seeing, speaking, breathing, or learning. See 29 C.F.R. § 1630.2(i). In short, Aucutt has failed to present sufficient evidence to establish that the nature, duration, and long-term impact of his medical problems caused him to be substantially limited in a major life activity. Therefore, we hold that he is' not “disabled” within the meaning of 42 U.S.C. § 12102(2)(A).

Aso without merit is Aucutt’s claim that he is disabled under 42 U.S.C. § 12102(2)(C) because Six Flags regarded him as having an impairment which substantially limited one or more of his major life activities. In support of this argument, Aucutt notes that Six Flags was aware of his medical problems, his inability to perform the “streams course,” and his requests for an air-conditioned vehicle during the summer months. The mere fact that Six Flags had such knowledge, however, does not show that Six Flags regarded Aucutt as having a disabling impairment. We are again guided by the applicable EEOC regulations, which provide as follows:

(l)Is regarded as having such an impairment means:
(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(3) Has none of the impairments defined ... [above] but is treated by a covered entity as having a substantially limiting impairment.

29 C.F.R. § 1630.2(Z)(1)-(3). Aucutt has not brought forth any evidence suggesting that Six Flags perceived or treated him as having a substantially limiting impairment. In the absence of such evidence, the fact that Six Flags was aware of his medical problems is insufficient to establish that Six Flags “regarded” him as disabled under 42 U.S.C. § 12102(2). Thus, we hold that Aucutt failed to make a prima facie case of disability discrimination.

III. Conclusion

After carefully reviewing the record, we hold that the district court did not err in granting summary judgment in favor of Six Flags on Aucutt’s ADEA and ADA claims. Accordingly, the judgment of the district court is affirmed.

      . The Honorable Steven N. Limbaugh, United States District Judge for the Eastern District of Missouri.

      . The ADEA provides, inter alia, that “[i]t shaE be unlawful for an employer ... to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age...." 29 U.S.C. § 623(a)(1).

      . This argument is considered separately below.

      . The ADA prohibits discrimination "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).


author: MAGILL, Circuit Judge. HEANEY, Circuit Judge,

text:
    Ralph R. CRUZE, Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Appellee.
    No. 95-3334.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 15, 1996.
    Decided June 7, 1996.

      Robert W. Pratt, Des Moines, IA, argued, for Appellant.
    Inga Bumbary-Langston, Asst. U.S. Atty., Des Moines, IA, argued, for Appellee.
    Before MAGILL, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
   MAGILL, Circuit Judge.

Ralph Cruze appeals from the district court’s order affirming the Secretary of Health and Human Services’ denial of disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433 (1994). In denying benefits, the administrative law judge (ALJ) found that although Cruze could not return to his past work, he could obtain gainful employment. Because this decision is supported by substantial evidence, we affirm.

I.

At the time he applied for disability benefits on March 29, 1993, Cruze was fifty-one years old and had worked as a maintenance electrician at the Dial Corporation in Fort Madison, Iowa, for the past fifteen years. In his application, Cruze stated that he was disabled due to heart problems. In September 1992, Cruze had suffered a heart attack, for which he was hospitalized. A cardiac catheterization showed lesioning of several of the blood vessels surrounding Craze’s heart. Cruze was again admitted to the hospital on January 25, 1993, this time for light-headedness. Cardiac testing revealed atrial tachyrhythmia, which responded well to cardiac electrical stimulation. Finally, in March 1993, Cruze underwent a quadruple coronary artery bypass operation to combat three-vessel coronary artery disease.

The Secretary denied Craze’s application initially and on reconsideration because Craze’s condition did not meet the statutory definition for disability. Cruze sought a hearing before an ALJ, which was held on April 11, 1994. At the hearing, the ALJ heard medical evidence from Dr. Austin, Craze’s treating physician, and from Dr. Nichols and Dr. Minks, consulting physicians. Craze also testified as to his subjective accounts of pain and his daily living activities.

After the hearing, the ALJ evaluated Craze’s claim according to the five-step analysis prescribed by Social Security Administration Regulations. See 20 C.F.R. § 404.1520(b)-(f) (1993). The ALJ found at the first step that Cruze was not currently working, at the second step that Cruze had a severe impairment, at the third step that Craze’s impairment did not meet or equal a listed impairment presumed to be disabling, and at the fourth step that Craze’s impairment prevented him from doing his past relevant work as a maintenance engineer.

After the claimant has shown that he is precluded from doing past relevant work, at step five of the analysis the burden shifts to the Secretary to demonstrate that the claimant possesses the residual functional capacity to perform jobs that exist in the national economy. See Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir.1991). Based on the medical testimony presented at the hearing, as well as Craze’s testimony, the ALJ concluded that Cruze possessed the residual functional capacity

to perform the physical exertional and nonexertional requirements of work except for lifting and carrying of more than 20 pounds occasionally or 10 pounds frequently; more than occasional stooping, kneeling, crawling, crouching, climbing, or balancing; exposure to concentrations of heat, humidity, or cold; or work which involves more than low to moderate levels of stress.

Decision at 13. The ALJ posed a hypothetical question incorporating these limitations to Leona Martin, a vocational expert (VE), who replied that Cruze could still perform work as a light cleaner, office helper or messenger, or mail clerk. The VE further testified that these positions exist in significant numbers in the national economy.

Based on the response given by the VE, the ALJ denied Craze’s application for benefits. The denial was upheld by the district court, and this appeal followed.

II.

We must affirm the decision of the ALJ if it is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence “is less than a preponderance, but enough so that a reasonable mind might find it adequate to support the conclusion.” Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir.1993). Thus, “[w]e do not reweigh the evidence or review the factual record de novo.” Naber v. Shalala, 22 F.3d 186, 188 (8th Cir.1994). Rather, “if it is possible to draw two inconsistent positions from the evidence and one of those positions represents the agency’s findings, we must affirm the decision.” Oberst, 2 F.3d at 250 (quoting Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir.1992)).

Testimony from a VE based on a properly phrased hypothetical question constitutes substantial evidence. See Miller v. Shalala, 8 F.3d 611, 613 (8th Cir.1993) (per curiam); cf. Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir.1994) (when hypothetical question does not encompass all relevant impairments, VE’s testimony does not constitute substantial evidence to support the ALJ’s decision). The ALJ’s hypothetical question need “include only those impairments that the ALJ finds are substantially supported by the record as a whole.” Id. (citing Stout v. Shalala, 988 F.2d 853, 855 (8th Cir.1993)); see also Morse v. Shalala, 32 F.3d 1228, 1230 (8th Cir.1994).

Cruze challenges the ALJ’s determination that he does not suffer from a walking or standing limitation. Cruze contends that the evidence of his cardiac problems demonstrates that he does suffer from this limitation, and thus the hypothetical was incomplete for not including this impairment. Cruze also challenges the ALJ’s description of his lifting and carrying limitations. We conclude that the ALJ’s impairment determination was supported by substantial evidence, and that the hypothetical question was therefore accurate and complete.

A.

The evidence concerning whether Cruze suffered from a standing or walking limitation can.be broadly broken down into three categories: (1) testimony from Drs. Nichols and Minks, based on objective medical evidence, who concluded that Cruze did not suffer from such a limitation; (2) evidence of Craze’s daily living activities, which likewise supports the ALJ’s decision; and (3) evidence detracting from the ALJ’s decision, including testimony from Dr. Austin and from Cruze.

1. Dr. Nichols’ and Dr. Minks’ Assessments

Dr. Nichols and Dr. Minks concluded that Cruze did not suffer from a walking or standing limitation. They based their assessments on a review of the objective medical findings of Dr. Austin.

Cruze underwent three successful treadmill tests, in November 1992 (exercise time of eleven minutes and twenty seconds), February 1993 (exercise time of fourteen minutes and thirty-four seconds), and July 1993 (exercise time of twelve minutes and seventeen seconds). Cruze reached his target heart rate on all three tests. After each test, Dr. Austin concluded that Cruze tested negative for both chest pain and arrhythmia.

Evidence of ischemia, on the other hand, was mixed. The November and February tests were positive for ischemia (the November test only weakly so). However, in February, despite the positive test for ischemia, Dr. Austin concluded that Cruze’s achieved energy levels would qualify him to work, although the results were not sufficient enough for Cruze to return to his prior job.

Cruze demonstrated remarkable improvement on the July test. While he had some postoperational pain, he experienced only mild to moderate shortness of breath, no faint-headedness, and no leg cramps. Significantly, the test was negative for ischemia as well as chest pain and arrhythmia.

Dr. Nichols, after reviewing these objective medical findings, concluded that Cruze could walk or stand for approximately six hours out of an eight-hour day, and that Cruze could sit for at least six hours in a day. Dr. Nichols noted that while Cruze had small areas of ischemia, the July 1993 treadmill test was negative for ischemia at 8.6 METS, and that in September, Cruze’s gait was normal. Thus, Dr. Nichols determined that Cruze’s cardiac problems do not disable him; rather, they merely limit him to light work.

Dr. Minks came to a conclusion similar to that of Dr. Nichols. After reviewing the file in July 1993, Dr. Minks noted that Cruze “has no limitations in standing, sitting, pushing, pulling, or the use of hand or foot controls.” Tr. at 276. Dr. Minks further noted that, as of July 1993, Cruze was “really not disabled at present,” id; however, he deferred to Cruze’s treating physician’s view that Cruze should restrict his activities.

2. Cruze’s Daily Activities

The diagnoses of Dr. Nichols and Dr. Minks are fully supported in the record by evidence of Cruze’s therapy and daily activities. Before his operation in March 1993, Cruze regularly drove a car, performed light housework, and visited friends daily at a coffee shop. After the March operation, Cruze participated in cardiac rehabilitation and education. At therapy, he was able to walk independently for 800 feet and climb three steps at a time. Therapy goals were noted to have been met.

Less than six months later, in August 1993, Cruze was engaged in an active lifestyle, including mowing his lawn; shopping in town, usually once or twice a week for two to three hours per trip; visiting with friends; caring for a number of farm animals such as cows and chickens, which entailed lifting and carrying ten-pound feed buckets to the animals; and performing odd jobs such as building birdcages and welding for himself and for his neighbors. Such activities tend to prove that Cruze is able to work. Naber, 22 F.3d at 188 (complainant’s desire to work part-time on his brother’s ranch or in a paintshop or woodshop “tends to prove” that the complainant was able to work).

Third, Cruze himself admitted that he was not completely disabled. In a March 1994 pain questionnaire, Cruze admitted that he could stand, walk, climb stairs, kneel, drive, lift and carry light things, reach and handle things, grip, bend over, and crawl. Although Cruze imposed a half-hour limitation for these activities, we find such a limitation belied by his recreational activities, which often included a three-hour walk around town with friends.

3. Evidence Demonstrating Disability

Cruze contends that, despite all of the evidence demonstrating that he did not suffer from a walking or standing limitation, the ALJ erred in not crediting Dr. Austin’s conclusion that any significant degree of walking about, particularly if this involved stairs, would put Cruze’s cardiac status at risk. Although “a treating physician’s opinion is generally entitled to substantial weight,” Davis v. Shalala, 31 F.3d 753, 756 (8th Cir.1994), such opinion “does not automaticaUy control, since the record must be evaluated as a whole,” Bentley v. Shalala, 52 F.3d 784, 786 (8th Cir.1995). Further, where the treating physician’s opinions are themselves inconsistent, they should be accorded less deference. Id.; cf. Donaho v. FMC Corp., 74 F.3d 894, 901 (8th Cir.1996) (in ERISA disability cases, when a doctor offers inconsistent opinions, less weight should be afforded that opinion).

Dr. Austin’s opinions have largely been inconsistent and are not fully supported by the objective medical evidence. After the February treadmill test, which was positive for ischemia, Dr. Austin stated that Cruze could return to work, just not at his old job at Dial. After this positive evaluation, Cruze’s condition improved further, as evidenced by the July treadmill exam. If (1) Cruze could return to some work in February, despite the presence of ischemia, and (2) Cruze’s condition improved throughout the year, then we find it difficult to accept Dr. Austin’s September decision that Cruze’s cardiac status suddenly put him at risk to return to any work.

At a September 1993 disability hearing, Dr. Austin noted that “[standing, moving about, walking and sitting in an 8 hour work day would be difficult to assess.” Tr. at 281. He then reversed course and, disregarding the results of the February and July treadmill tests, he asserted that any significant amount of walking would put Cruze at risk. This opinion is not supported by “medically acceptable clinical or diagnostic data” and thus the ALJ was not bound by it. Davis, 31 F.3d at 756.

Cruze also points out that Dr. Austin twice concluded that, given Cruze’s job requirements at Dial, Cruze qualified for disability benefits under Iowa law. The ALJ properly disregarded this conclusión. First, whether or not Cruze was disabled under Iowa law is not binding on the Commissioner of Social Security. See 20 C.F.R. § 404.1504. Second, statements that a claimant could not be gainfully employed “are not medical opinions but opinions on the application of the statute, a task assigned solely to the discretion of the Secretary.” Nelson v. Sullivan, 946 F.2d 1314, 1316 (8th Cir.1991). Such statements simply “are not conclusive as to the ultimate question” of disability. Id. at 1316-17. To the extent that Dr. Austin’s opinion was a medical opinion, we note that whenever he labelled Cruze as disabled, it was in reference to Cruze’s former job at Dial; Dr. Austin never stated that Cruze was prevented from carrying on all labor. The statements have little bearing on Cruze’s residual functional capacity.

Cruze’s subjective complaints of pain and light-headedness when walking and working were also properly disregarded by the ALJ. When reviewing subjective complaints of pain, an ALJ cannot disregard them unless they are not supported by the record as a whole. See Naber, 22 F.3d at 188. In this case, the ALJ disregarded the subjective complaints of pain and light-headedness because they conflicted with the evidence concerning Cruze’s daily activities, such as earing for a number of farm animals and weekly three-hour visits to town. Further, the medical evidence belies Cruze’s testimony — during the July treadmill exam, Cruze suffered only mild to moderate shortness of breath, no faint-headedness, and no leg cramps. We find no error here.

Under the substantial evidence standard, we cannot say that the ALJ erred in concluding that Cruze did not have a standing or walking limitation. This conclusion was supported by the medical opinions of two consulting physicians and by evidence of Cruze’s daily activities. Against this, Cruze offers only the inconsistent statements of his treating physician and his own subjective assessments. It was therefore proper for the ALJ to not include a standing or walking limitation in the hypothetical question given to the VE.

B.

The ALJ’s determination that Cruze could lift ten pounds frequently, and twenty pounds on occasion, is likewise supported by substantial evidence. Upon reviewing the record, Dr. Nichols concluded that this was the proper lifting limit for Cruze. Dr. Austin’s testimony that Cruze could not “lift any more than 5 or 10 lbs. with any degree of frequency,” Tr. at 281, is not to the contrary, because the ALJ determined that Cruze could lift more than ten pounds only “occasionally.” Further, Dr. Minks concluded in July 1993 that by January 1994, Cruze “should be capable of at least 50 pounds occasionally, 25 pounds frequently.” Tr. at 276.

Cruze himself admitted to carrying ten-pound feed buckets to his cows on a regular basis. He also noted, in an August 1993 pain questionnaire, that he could carry up to fifty pounds (for a distance of four feet), but that his doctors had advised him to carry no greater than twenty-five pounds. That Craze’s doctors limited him to carrying twenty-five pounds suggests that Cruze would be able to carry twenty pounds on an occasional basis.

We conclude that the lifting and carrying weight restrictions in the hypothetical have substantial support in the record. Because the hypothetical given to the VE corresponded to the impairments as determined by the ALJ, the hypothetical given to the VE was proper. The VE’s response, that Cruze would be able to perform jobs that existed in the national economy in significant numbers, amounts to substantial evidence supporting the ALJ’s decision. See Miller, 8 F.3d at 613.

III.

Based on the record as a whole, substantial evidence supports the ALJ’s decision denying benefits to Craze. Accordingly, we affirm.

HEANEY, Circuit Judge,

dissenting.

The record fully supports Craze’s contention that he is entitled to disability benefits as of January 1, 1993. Contrary to the majority’s characterization, the record provides ample evidence that Cruze has difficulty standing or walking for prolonged periods of time. Yet, the ALJ ignored this evidence when he posed the hypothetical of limitations to the vocational expert. The ALJ similarly erred in concluding that Cruze could perform light work. As defined by the regulations, light work “requires a good deal of walking or standing.” 20 C.F.R. § 404.1567(b). As the evidence in the record demonstrates, Cruze is unable to perform light work on a full-time basis. Thus, I respectfully dissent from the majority and would reverse the ALJ’s denial of disability benefits.

Dr. Austin, Craze’s treating physician, personally examined Cruze on several occasions and monitored his heart condition periodically. He stated that any significant degree of standing or walking would put Craze’s cardiac status at risk. Tr. at 280. This evidence alone is sufficient to require a finding of disability. The ALJ and the majority discredit Austin’s disability evaluation, however, largely because they consider it “inconsistent” with his earlier evaluations. The majority argues that, based on the results of the treadmill tests in February and July 1993, Austin had reported an improvement in Craze’s condition and that therefore his September disability evaluation is “difficult to accept.”

Dr. Austin’s opinions are consistent and the majority is grasping at straws to characterize them to the contrary. As evidenced by his quadruple coronary bypass operation in March of 1993, Craze’s cardiac condition clearly did not improve from February to March. Moreover, although the July treadmill test was negative for ischemia, Dr. Austin noted that interpretation of ischemia on that test was difficult due to the changes on Craze’s EKG. A subsequent Thallium report revealed that Craze’s ischemia “worsened in appearance and increased in size” since his February examination. Tr. at 220. It also stated that Craze’s defect in his left ventricle had increased in size since the earlier examination. Id. Thus, Dr. Austin’s opinion, consistent with his earlier evaluations, should be accorded the substantial weight to which a treating physician’s opinions generally are entitled. See Davis v. Shalala, 31 F.3d 753, 756 (8th Cir.1994).

The ALJ also should not have summarily rejected Dr. Austin’s statement that Cruze is disabled under Iowa law. If Dr. Austin had been referring to a standard other than that appropriate in Social Security disability cases, the ALJ might have had a point. Dr. Austin’s statement, however, was addressed to the Iowa state office that makes the initial disability determinations for the Social Security Administration. His reference to Iowa law was therefore appropriate and should be credited accordingly.

Moreover, the majority’s wholesale reliance on the assessments of Drs. Minks and Nichols is misplaced. Neither doctor, retained by the Social Security Administration as consulting physicians, has ever personally examined Cruze. Both based their opinions solely on Craze’s medical records. Dr. Nichols did not even go to the trouble of preparing a narrative report. He simply checked a number of blanks in a form provided to him by the Social Security Administration. Dr. Minks expressed no opinion as to Craze’s walking limitations. Rather, he stated that Cruze has “no limitations in standing, sitting, pushing, pulling, or the use of hand or foot controls.” Tr. at 276. No one disagrees with that assessment, but the relevant inquiry is whether Craze is able to do the walking that is required for light work on a full-time basis. Most importantly, it is the responsibility of the ALJ to fully develop the record. If he found that there were inconsistencies in the opinions of the treating physician and the consulting physicians, he should have made further inquiry at the hearing to resolve the matter.

Finally, the ALJ and the majority have exaggerated the extent of Craze’s daily activities. According to the testimony of both Cruze and his housemate, Betty Clementson, Craze’s activity is quite limited. The ALJ found that Cruze “was mowing his lawn, shopping, and caring for a number of farm and domestic animals” and concluded, “[e]vidently, he can perform all activities necessary to maintain his nine-acre home place.” Tr. at 23-24. Such findings disregard Craze’s testimony that the only mowing he does is on a rider mower and that it is limited to ten minutes at a time. Tr. at 47-48. He also testified that Ms. Clementson does the majority of the household and farm chores and that his neighbor feeds his cattle for him once a day. Tr. at 49, 52. The majority similarly distorts Craze’s recreational activities, stating that they “often included a three-hour walk around town with friends.” Ms. Clementson testified that she and Cruze sometimes go shopping and out to eat on the weekends and that the entire trip would last, at a maximum, three hours. Tr. at 70. Nowhere in the record is there support for the view that Cruze is able to walk around town for three hours. Rather, he testified that he experiences shortness of breath and dizziness after walking for even a short period of time. Tr. at 43. Craze’s daily activities include only light farm chores and housekeeping, occasional shopping and carpentry, and visiting with friends and neighbors.

Neither the medical opinions nor Craze’s daily activities support the ALJ’s conclusion that Cruze is able to perform full-time work that requires significant walking or standing. See McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (claimant must be able to perform the work “day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.”) (en banc). It is conceded that Cruze was not able to return to his past work. Thus, the burden was clearly on the Secretary to establish that Cruze could perform light work in accordance with the requirements of McCoy. She failed to carry her burden.

Cruze is entitled to disability benefits beginning January 1, 1993. In the alternative, the matter could be remanded to the ALJ to resolve the conflict between the treating physician and the consulting physicians and then to pose an appropriate hypothetical to the vocational expert. The majority, however, rejects even that approach. I therefore dissent.

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

      . Although Cruze also suffered from rheumatoid arthritis and from a tear of the medial meniscus, the ALJ noted that no evidence was presented that the arthritis was in an active stage, and the record did not contain any evidence about persistent joint pain, swelling, and tenderness of major joints. Further, Dr. Austin’s physical examination revealed only minor limitations in the range of motion of Craze's knees and other joints. Because the hypothetical question given to the VE incorporated limitations in stooping, crawling, and the like, and because Cruze has not contended on appeal that the AU overlooked this evidence in formulating the hypothetical, we will confine our discussion to the cardiac problems.

      . Craze underwent a fourth treadmill test, shortly after his hospitalization in January 1993, that was aborted upon development of premature ventricular contractions. However, after the test, Dr. Austin noted that Craze's heart rhythm was "stable ... for normal activities.” At this time, there was no evidence of any active cardiovascular or pulmonary disease.

      . This conclusion, if accepted by the ALJ, meets the threshold for light work, which is defined as work that “requires a good deal of walking or standing [or] involves sitting most of the time with some pushing or pulling of arm and leg controls." 20 C.F.R. § 404.1567(b); see also Naber, 22 F.3d at 189.

      . Dr. Minks did not assess Craze's walking ability-

      . In an August 1993 pain questionnaire, Cruze stated that he could walk less than a full block before he became tired and needed to rest. Cruze's friend, Betty Clementson, reiterated this at the hearing, noting that Cruze could not walk for long periods of time before becoming lightheaded and needing rest. In a later questionnaire, dated November 17, 1993, Cruze noted that when working on a project, he could only pound around three nails before needing to rest due to numbness in his hand.