Lara v. Colvin
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the final decision of Defendant denying Social Security benefits to Plaintiff is AFFIRMED. A separate judgment in accordance with this Memorandum and Order is entered this date. Signed by Magistrate Judge Patricia L. Cohen on April 11, 2018. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NANCY A. BERRYHILL,
Deputy Commissioner of Operations, Social
Case No. 4:16-CV-00564-PLC
MEMORANDUM AND ORDER
Jennifer Lara (Plaintiff) seeks review of the decision of Defendant Deputy Commissioner
of Operations, Social Security Administration, Nancy Berryhill, denying her application for
Disability Insurance Benefits under the Social Security Act. 1 Because the Court finds that
substantial evidence supports the decision to deny benefits, the Court affirms the denial of
Background and Procedural History
In May 2013, Plaintiff filed an application for a period of disability and Disability
Insurance Benefits. (Tr. 149-50). The Social Security Administration (SSA) denied Plaintiff’s
claims, and she filed a timely request for a hearing before an administrative law judge (ALJ).
(Tr. 103-04). The SSA granted Plaintiff’s request for review and conducted a hearing on
September 30, 2014. (Tr. 35-79). In a decision dated November 10, 2014, the ALJ found that
Plaintiff had not been under a disability, as defined in the Social Security Act, through April 1,
2013. (Tr. 27).
The parties consented to the exercise of authority by the United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). (ECF No. 9).
In her decision, the ALJ applied the five-step evaluation set forth in 20 C.F.R. §
404.15202 and found that Plaintiff had the severe impairments of irritable bowel syndrome,
gastroesophageal reflux disease, bipolar I disorder, social phobia, and generalized anxiety
disorder. (Tr. 17). The ALJ determined that Plaintiff had the residual functional capacity (RFC)
to: occasionally lift up to twenty pounds and frequently lift or carry up to ten pounds; stand or
walk two hours in an eight-hour workday; sit six hours in an eight-hour workday; perform work
that does not require climbing ropes, ladders, or scaffolds or exposure to work hazards;
understand, remember, and carry out simple instructions consistent with unskilled work; tolerate
only minor, infrequent changes within the workplace; and tolerate occasional contact with coworkers, supervisors, and the general public.
Finally, the ALJ concluded:
“[C]onsidering [Plaintiff’s] age, education, and work experience, and residual functional
capacity, [Plaintiff] is capable of making a successful adjustment to other work that exists in
significant numbers in the national economy” and is, therefore, “not disabled.” (Tr. 21).
Plaintiff requested review of the ALJ’s decision with the SSA Appeals Council, which
denied review. (Tr. 1-7). Plaintiff has exhausted all administrative remedies, and the ALJ’s
decision stands as Defendant’s final decision. Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
Standard of Review
A court must affirm an ALJ’s decision 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
To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. See 20 C.F.R. §§ 404.1520. Those steps require a claimant to show that he
or she: (1) is not engaged in substantial gainful activity; (2) has a severe impairment or
combination of impairments which significantly limits his or her physical or mental ability to do
basic work activities or (3) has an impairment which meets or exceeds one of the impairments
listed in 20 C.F.R., Subpart P, Appendix 1; (4) is unable to return to his or her past relevant
work; and (5) the impairments prevent him or her from doing any other work. Id.
reasonable mind might find it adequate to support the conclusion.’” Cruze v. Chater, 85 F.3d
1320, 1323 (8th Cir. 1996) (quoting Boerst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993)). In
determining whether the evidence is substantial, a court considers evidence that both supports
and detracts from the Commissioner’s decision. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th
Cir. 2009). However, a court “do[es] not reweigh the evidence presented to the ALJ and [it]
defer[s] to the ALJ’s determinations regarding the credibility of testimony, as long as those
determinations are supported by good reason and substantial evidence.” Renstrom v. Astrue, 680
F.3d 1057, 1064 (8th Cir. 2012) (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.
“If, after reviewing the record, the court finds it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the ALJ’s findings, the court
must affirm the ALJ’s decision.” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting
Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). The Eighth Circuit has repeatedly held that
a court should “defer heavily to the findings and conclusions” of the Social Security
Administration. Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Howard v. Massanari, 255
F.3d 577, 581 (8th Cir. 2001).
Plaintiff claims that the ALJ erred in failing to include in Plaintiff’s RFC assessment a
limitation for absenteeism. (ECF No. 18). Defendant counters that the ALJ did not err in failing
to include absenteeism in Plaintiff’s RFC because the evidence did not support the need for such
limitation. (ECF No. 23).
RFC is “the most [a claimant] can still do despite” his or her physical or mental
limitations. 20 C.F.R. § 404.1545(a)(1). See also Masterson v. Barnhart, 363 F.3d 731, 737 (8th
Cir. 2004). “The ALJ should determine a claimant’s RFC based on all relevant evidence
including the medical records, observations of treating physicians and others, and an individual’s
own description of his limitations.”
Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009)
(quotation omitted). “Because a claimant’s RFC is a medical question, an ALJ’s assessment of it
must be supported by some medical evidence of the claimant’s ability to function in the
workplace.” Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016) (quoting Cox v Astrue, 495
F.3d 614, 619 (8th Cir. 2007)). “However, there is no requirement that an RFC finding be
supported by a specific medical opinion.” Id. Nor is an ALJ limited to considering medical
evidence exclusively when evaluating a claimant’s RFC. Cox, 495 F.3d at 619. “It is the
claimant’s burden, and not the Social Security Commissioner’s burden, to prove the claimant’s
RFC.” Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).
Plaintiff claims that the ALJ erred in failing to incorporate an absenteeism limitation in
her RFC because “Plaintiff has to see doctors nearly every month of the year[.]” (ECF No. 18 at
13). Plaintiff points to evidence that, in 2012, she had at least fourteen appointments with
medical providers. (Tr. 241, 246-247, 255, 319, 323, 337, 401). In 2013, the year of the alleged
onset, Plaintiff treated with medical providers at least twenty times (Tr. 289-297, 319, 323, 344,
346, 363, 369, 415, 417, 419-420, 426, 440, 510, 758-763, 767-789, 819, 838-9, 953, 1018-1028,
1069-1084, 1111-1113, 1148, 1200-1201), and in 2014, Plaintiff visited medical providers at
least seventeen times. (Tr. 545, 578, 614-617, 708, 726, 740, 754-757, 857-859, 873, 903-904,
1317-1318, 1365-1366, 1518, 1520, 1532, 1534, 1576, 1617-1618, 1716-1717, 1724, 1729).
A plaintiff bears the burden of proving her limitations. Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004). Plaintiff relies on the frequency of her past medical appointments to
predict her future absences from work. However, she offered no evidence that this was a reliable
predictor of future medical appointments. Indeed, Plaintiff offered no proof as to the number of
days that she must miss work due to her illness. See, e.g., Jeffries v. Berryhill, No. 4:16-CV-18
JMB, 2017 WL 365439, at *6 (E.D.Mo. Jan. 25, 2017). Nor did Plaintiff cite evidence in the
record to suggest that she could not schedule her medical appointments around her work
schedule and/or schedule multiple appointments on the same day. See e.g., Miller v. Berryhill,
No. 4:16-CV-1292 JAR, 2017 WL 3642035, at *7 (E.D.Mo. Aug. 24, 2017); Brown v. Astrue,
No. 08-4026-CV-C-NKL-SSA, 2008 WL 4151613, *2 (W.D.Mo. Sept. 2, 2008); Ferrara v.
Astrue, No. 07-0667-CV-W-NKL-SSA, 2008 WL 2098095, at *4 (W.D.Mo. May 16, 2008).
Moreover, the record reflects that Plaintiff’s medical appointments did not consume entire days.
Plaintiff also suggests that the vocational expert’s testimony that “an individual could
miss no more than 7 work days and still maintain employment,” demonstrated the need for an
absenteeism limitation (ECF No. 18 at 13). “[E]ven if Plaintiff is right at a theoretical level that
an employee cannot miss more than seven days of work in a year, Plaintiff did not show that her
doctor's appointments require her to miss seven entire days of work per year[.]” Jeffries, 2017
WL 365439, at *7.
In support of her position that the ALJ erred in failing to include absenteeism as a
limitation in the RFC, Plaintiff cites Baker v. Apfel, 159 F.3d 1140 (8th Cir. 1998). Baker is
inapposite. In that case, the plaintiff, who suffered from migraines, presented evidence that he
received sixty Demerol injections over a six-month period. Id. at 1146. Due to side effects of
the medication, the plaintiff could not return to the workplace immediately after receiving
injections, and his treating physician opined that the plaintiff’s impairments would cause him to
miss “a great deal of work.” Id.
Unlike the plaintiff in Baker, Plaintiff failed to demonstrate that her doctor appointments
would interfere with her work schedule or that the treatments received would render her unable
to return to work. The Court therefore finds that the ALJ's decision not to include absenteeism in
the RFC is supported by substantial evidence in the record.
For the reasons discussed above, the Court finds that substantial evidence in the record as
a whole supports Defendant’s decision that Plaintiff is not disabled. Accordingly,
IT IS HEREBY ORDERED that the final decision of Defendant denying Social
Security benefits to Plaintiff is AFFIRMED.
A separate judgment in accordance with this Memorandum and Order is entered this date.
PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 11th day of April, 2018
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