Miller v. Colvin

Filing 31

MEMORANDUM:...substantial evidence supports the ALJ's determination in this case. Accordingly, Judgment will be entered separately in favor of Defendant in accordance with this Memorandum. Signed by Magistrate Judge Abbie Crites-Leoni on 3/7/18. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LISA K. MILLER,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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MEMORANDUM
Plaintiff Lisa K. Miller brings this action pursuant to 42 U.S.C. ' 405(g), seeking judicial
review of the Social Security Administration Commissioner’s denial of her application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act.
An Administrative Law Judge (“ALJ”) found that Miller had the medically determinable
impairments of obesity, sinusitis, and ear infection, but these impairments were not severe through
her date last insured of September 30, 2008.
This matter is pending before the undersigned United States Magistrate Judge, with
consent of the parties, pursuant to 28 U.S.C. § 636(c). A summary of the entire record is
presented in the parties’ briefs and is repeated here only to the extent necessary.
For the following reasons, the decision of the Commissioner will be affirmed.
I. Procedural History
Miller protectively filed her application for DIB on August 2, 2012, claiming that she

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became unable to work on September 30, 2008,1 because of fibromyalgia and high blood pressure.
(Tr. 132-38, 166.) Her claims were denied initially. (Tr. 79-83.) Following an administrative
hearing, Miller’s claims were denied in a written opinion by an ALJ, dated April 24, 2014. (Tr.
10-16.) Miller then filed a request for review of the ALJ’s decision with the Appeals Council of
the Social Security Administration (SSA), which was denied on August 12, 2015. (Tr. 1-6.)
Thus, the decision of the ALJ stands as the final decision of the Commissioner. See 20 C.F.R. ''
404.981, 416.1481.
In her pro se brief, Miller argues that the ALJ “refused to review many updated medical
records and explanations concerning” her diagnosis with fibromyalgia in June 2012. (Doc. 26 at
p. 3.) After liberally construing Miller’s brief, the undersigned finds no error, and will affirm the
decision of the Commissioner.
II. The ALJ=s Determination
The ALJ first found that Miller last met the insured status requirements of the Social
Security Act on September 30, 2008. (Tr. 12.) She found that Miller did not engage in
substantial gainful activity during the period from her alleged onset date of September 30, 2008,
through her date last insured of September 30, 2008. Id.
In addition, the ALJ concluded that Miller had the following medically determinable
impairments: obesity, sinusitis, and ear infection. Id. The ALJ found that, through the date last
insured, Miller did not have an impairment or combination of impairments that significantly
limited her ability to perform basic work-related activities for twelve consecutive months. Id.
The ALJ therefore concluded that Miller was not under a disability, as defined in the Social

1

Miller originally alleged an onset date of December 31, 2007, but later amended her onset date to
September 30, 2008. (Tr. 132, 158.)
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Security Act, from September 30, 2008, the alleged onset date, through September 30, 2008, the
date last insured. (Tr. 15.)
The ALJ’s final decision reads as follows:
Based on the application for a period of disability and disability
insurance benefits protectively filed on August 2, 2012, the claimant
was not disabled under sections 216(i) and 223(d) of the Social
Security Act through September 30, 2008, the last date insured.

Id.
III. Applicable Law
III.A. Standard of Review
The decision of the Commissioner must be affirmed if it is supported by substantial
evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401
(1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). Substantial evidence is less than a
preponderance of the evidence, but enough that a reasonable person would find it adequate to
support the conclusion. Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial
evidence test,” however, is “more than a mere search of the record for evidence supporting the
Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal
quotation marks and citation omitted). “Substantial evidence on the record as a whole . . .
requires a more scrutinizing analysis.” Id. (internal quotation marks and citations omitted).
To determine whether the Commissioner’s decision is supported by substantial evidence
on the record as a whole, the Court must review the entire administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The plaintiff’s vocational factors.

3.

The medical evidence from treating and consulting physicians.
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4.

The plaintiff’s subjective complaints relating to exertional and
non-exertional activities and impairments.

5.

Any corroboration by third parties of the plaintiff’s
impairments.

6.

The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
claimant’s impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (internal
citations omitted). The Court must also consider any evidence which fairly detracts from the
Commissioner’s decision. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050
(8th Cir. 1999). However, even though two inconsistent conclusions may be drawn from the
evidence, the Commissioner's findings may still be supported by substantial evidence on the
record as a whole. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (citing Young v.
Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). “[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the record could also have supported an
opposite decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted). See also Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977 (8th
Cir. 2003).
III.B. Determination of Disability
A disability is defined as the inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or that has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. § 416.905. A claimant
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has a disability when the claimant is “not only unable to do his previous work but cannot,
considering his age, education and work experience engage in any other kind of substantial gainful
work which exists … in significant numbers either in the region where such individual lives or in
several regions of the country.” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social Security
Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. § 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). First,
the Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see “whether the claimant has a severe impairment that significantly limits the claimant’s
physical or mental ability to perform basic work activities.” Dixon v. Barnhart, 343 F.3d 602,
605 (8th Cir. 2003). “An impairment is not severe if it amounts only to a slight abnormality that
would not significantly limit the claimant’s physical or mental ability to do basic work activities.”
Kirby, 500 F.3d at 707; see 20 C.F.R. §§ 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to
do most jobs.” 20 C.F.R. § 416.921(b). These abilities and aptitudes include (1) physical
functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work
setting. Id. § 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987). “The
sequential evaluation process may be terminated at step two only when the claimant’s impairment

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or combination of impairments would have no more than a minimal impact on her ability to work.”
Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled, regardless
of age, education, and work experience. 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d); see Kelley
v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements” of
the claimant’s past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a
medical question defined wholly in terms of the claimant’s physical ability to perform exertional
tasks or, in other words, what the claimant can still do despite his or her physical or mental
limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks
omitted); see 20 C.F.R. § 416.945(a)(1). The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the claimant]
get medical reports from [the claimant’s] own medical sources.” 20 C.F.R. § 416.945(a)(3).
The Commissioner also will consider certain non-medical evidence and other evidence listed in
the regulations. See id. If a claimant retains the RFC to perform past relevant work, then the
claimant is not disabled. Id. § 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant to

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perform past relevant work, then the burden shifts to the Commissioner to prove that there is other
work that the claimant can do, given the claimant’s RFC as determined at Step Four, and his or her
age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir.
2000). The Commissioner must prove not only that the claimant’s RFC will allow the claimant to
make an adjustment to other work, but also that the other work exists in significant numbers in the
national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find the claimant is not disabled. If
the claimant cannot make an adjustment to other work, then the Commissioner will find that the
claimant is disabled. 20 C.F.R. §416.920(a)(4)(v). At Step Five, even though the burden of
production shifts to the Commissioner, the burden of persuasion to prove disability remains on the
claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
IV. Discussion
The ALJ terminated the sequential analysis at Step 2 upon finding that Miller’s medically
determinable impairments were not severe. A severe impairment is one that significantly limits a
claimant’s physical or mental ability to perform basic work activities and has lasted or is expected
to last for a continuous period of at least twelve months. 20 C.F.R. §§ 404.1520(a)(4), (c) and
416.920(a)(4), (c); 20 C.F.R. §§ 404.1509, 416.909. “The impairment must result from
anatomical, physiological, or psychological abnormalities which can be shown by medically
acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must
be established by medical evidence consisting of signs, symptoms, and laboratory findings, not
only by [the claimant’s] statement of symptoms.” Martise v. Astrue, 641 F.3d 909, 923 (8th Cir.
2011) (internal citations and quotation marks omitted) (brackets in Martise). The claimant has

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the burden of showing a severe impairment, but the burden at this stage of the analysis “is not
great.” Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001). While establishing “severity”
may not be an onerous requirement for a claimant to meet, “it is also not a toothless standard[.]”
Kirby, 500 F.3d at 708.
Because Miller’s last date insured is September 30, 2008, Miller has the burden to show
that she had a disabling impairment before her insured status expired. See Barnett v. Shalala, 996
F.2d 1221 (8th Cir. 1993) (citing Basinger v. Heckler, 725 F.2d 1166, 1168 (8th Cir. 1984)).
“When an individual is no longer insured for Title II disability purposes, [the Court] will only
consider her medical condition as of the date she was last insured.” Davidson v. Astrue, 501 F.3d
987, 989 (8th Cir. 2007). “Evidence from outside the insured period can be used in helping to
elucidate a medical condition during the time for which benefits may be rewarded.” Cox v.
Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). But, the evidence from outside the period cannot
serve as the only support for the disability claim. Id.
Applying these standards, the record contains substantial evidence that Miller’s
impairments were not severe by September 30, 2008. Miller’s representative testified at the
hearing that Miller was unable to work in 2008 due to chronic pain related to fibromyalgia. (Tr.
35.) He stated that medical records from 2012 show that Miller’s fibromyalgia symptoms began
48 months later. Id. The ALJ noted that Miller was trying to relate her fibromyalgia back to
2008 through a 2012 record, and found this argument “to be unconvincing because this appears to
rely on the claimant’s self-report” rather than an established diagnosis of fibromyalgia. (Tr. 13.)
The medical evidence to which the ALJ refers is a treatment note from Elizabeth Winters,
APRN, dated July 16, 2012. (Tr. 245-47.) Miller reported to establish care with Ms. Winters
and complained of fibromyalgia, hypertension, and hyperlipidemia. (Tr. 245.) She described

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her fibromyalgia symptoms as widespread pain, diffuse tenderness, generalized fatigue,
arthralgias, joint stiffness, morning stiffness, sleep disturbance, early awakening, difficulty falling
asleep, restless legs, headaches, depression, and exercise intolerance. Id. Miller rated her
current pain level as a five out of ten, with a maximum pain level of a ten. Id. She stated that the
pain was dull and aching, and was located in her neck, left upper extremity, left lower extremity,
right upper extremity, and right lower extremity. Id. Miller reported that the “onset was 48
month(s) ago.” Id. Upon physical exam, Miller was cooperative and well-appearing, not in
acute distress, was obese, and had no edema. (Tr. 246.) Ms. Winters diagnosed Miller with
hypertension, hyperlipidemia, and fibromyalgia. (Tr. 247.) She started Miller on Cymbalta.2
Id.
The ALJ’s finding that Ms. Winters’ treatment notes did not establish a diagnosis of
fibromyalgia beginning in 2008 is supported by the record. The ALJ accurately pointed out that
Ms. Winters’ reference to an onset of symptoms 48 months prior was based on Miller’s self-report
rather than an established diagnosis.
The ALJ next stated that, under Social Security Ruling 12-2p, the evidence of record is
insufficient to support that Miller’s fibromyalgia is a medically determinable impairment. (Tr.
13.) Social Security Ruling 12-2P provides guidance on how to evaluate fibromyalgia. SSR
12-2P (2012). A claimant has a medically determinable impairment of fibromyalgia if (1) a
physician diagnoses fibromyalgia and (2) provides evidence described in Section II.A or II.B of
SSR 12-2P. Id. at *2. Section II.A states that a person has a medically determinable impairment
of fibromyalgia if she has (1) a history of widespread pain in all quadrants of the body (left, right,
above, and below); (2) at least 11 positive tender points on physical examination; and (3) evidence

2

Cymbalta is indicated for the treatment of depression, anxiety, and nerve pain. See WebMD,
http://www.webmd.com/drugs (last visited February 23, 2018).
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that other disorders that could cause the symptoms or signs were excluded such as laboratory
testing and imaging. Id. at *2-3. Section II.B requires that a person have (1) a history of
widespread pain (like Section II.A); (2) repeated manifestations of six or more fibromyalgia
symptoms, especially manifestations of fatigue, cognitive and memory problems, waking
unrefreshed, depression, anxiety disorder, or irritable bowel syndrome; and (3) evidence that other
disorders that could cause these repeated manifestations were excluded. Id. at *3. A physician’s
diagnosis of fibromyalgia cannot be inconsistent with the other evidence in the claimant’s record.
Id. at 2.
The ALJ stated that, even assuming the record supports a history of widespread pain, the
record contains no evidence of 11 out of 18 positive tender points. (Tr. 13.) She further found
that there was no evidence of repeated manifestations of six or more fibromyalgia symptoms or
evidence that other disorders that could cause these symptoms were excluded. (Tr. 13-14.)
The ALJ’s finding is supported by the record. As noted by the ALJ, even treatment notes
from well after Miller’s date last insured reveal unremarkable physical examinations. (Tr.
14-15.) On March 2, 2010, Miller presented to Chad R. Fowler, M.D., with complaints of
constant worrying with muscle and joint pain. (Tr. 258.) Upon physical examination, Dr.
Fowler noted no abnormalities. (Tr. 259.) He diagnosed Miller with “pain in the muscles” and
“pain in joints,” and generalized anxiety disorder (“GAD”), and started her on Cymbalta. (Tr.
260.) On April 2, 2010, Miller presented for follow-up regarding anxiety. (Tr. 266.) Dr.
Fowler noted that Miller was overall “much improved” on Cymbalta, and her diffuse pains were
resolving. (Tr. 266.) No abnormalities were noted on physical exam. Id. When Miller saw
Ms. Winter more than two years later in July 2012, her physical examination remained
unremarkable. (Tr. 246.)

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Miller argues in her Reply that Dr. Fowler diagnosed her with fibromyalgia on March 2,
2010, and notes that she was prescribed Cymbalta for fibromyalgia at that time. (Doc. 29.) As
previously discussed, however, Dr. Fowler did not diagnose Miller with fibromyalgia but instead
merely assessed “pain in the muscles” and “pain in joints.” (Tr. 259.) In fact, Dr. Fowler noted
that Miller’s Vitamin D deficiency “may be the cause of muscle/joint pains.” (Tr. 260.) He
prescribed Cymbalta for both the muscle and joint pain and the anxiety, and recommended that
Miller spend 10-15 minutes in the sun a few times per week. Id.

Significantly, Dr. Fowler

noted no abnormalities on examination.
In sum, the ALJ properly considered Miller’s medically determinable impairments of
obesity, sinusitis, and ear infection, but found they were not severe during the relevant period.
Miller does not dispute the ALJ’s severity finding with regard to these impairments. Before the
expiration of the date last insured, there is no medical evidence in the record to support a diagnosis
of fibromyalgia. As stated earlier, evidence from outside the period cannot serve as the only
support for the disability claim. Cox, 471 F.3d at 907. Thus, substantial evidence supports the
ALJ’s determination in this case.
Accordingly, Judgment will be entered separately in favor of Defendant in accordance with
this Memorandum.

/s/ Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 7th day of March, 2018.

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