Miller v. Colvin

Filing 30

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and Plaintiffs Complaint is DISMISSED with prejudice. A separate Judgment will accompany this Order. Signed by District Judge John A. Ross on 8/24/17. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
AMY MILLER,
Plaintiff,
v.
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 4:16-CV-01292 JAR

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of
Social Security’s final decision denying Amy Miller’s (“Miller”) application for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. and
supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. §
1381, et seq.
I.

Background

Miller applied for disability insurance benefits and supplemental security income benefits
on April 23, 2013, alleging disability as of September 20, 2012 resulting from an injury to her
left wrist and lumbar spinal pain. After her application was denied at the initial administrative
level, she requested a hearing before an administrative law judge (“ALJ”). Following a hearing
on January 26, 2015, the ALJ issued a written decision on April 29, 2015, denying her
application. Miller’s request for review by the Appeals Council was denied. Thus, the decision of
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner
Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

the ALJ stands as the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107
(2000).
II.

Facts

The Court adopts Miller’s Statement of Material Facts (Doc. No. 24) and Defendant’s
Statement of Additional Material Facts (Doc. No. 29-2). The Court’s review of the record shows
that the adopted facts are accurate and complete. Specific facts will be discussed as part of the
analysis.
III.

Standards

The court’s role on judicial review is to determine whether the ALJ’s findings are
supported by substantial evidence in the record as a whole. Johnson v. Astrue, 628 F.3d 991, 992
(8th Cir. 2009). “Substantial evidence is that which a reasonable mind might accept as adequate
to support a conclusion.” Id. (citations omitted). The court may not reverse merely because
substantial evidence exists in the record that would support a contrary outcome or because the
court would have decided the case differently. See Krogmeier v. Barnhart, 294 F.3d 1019, 1022
(8th Cir. 2002).
To determine whether the ALJ’s final decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole and to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s physical
activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon prior hypothetical questions
which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.

2

Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
The Social Security Act defines as disabled a person who is “unable 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 which has lasted or can be expected to
last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The
impairment must be “of such severity that [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 the national economy, regardless of whether such
work exists in the immediate area in which he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has established a five-step process for determining whether a person
is disabled. 20 C.F.R. §§ 416.920(a), 404.1520(a). “If a claimant fails to meet the criteria at any
step in the evaluation of disability, the process ends and the claimant is determined to be not
disabled.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v. Barnhart,
390 F.3d 584, 590-91 (8th Cir. 2004)). First, the claimant must not be engaged in “substantial
gainful activity.” 20 C.F.R. §§ 416.920(a), 404.1520(a). Second, the claimant must have a
“severe impairment,” defined as “any impairment or combination of impairments which
significantly limits [claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R.
§§ 416.920(c), 404.1520(c). The severity of mental disorders is determined by rating the
claimant’s degree of limitations in four areas of functioning: activities of daily living; social
functioning; concentration, persistence, or pace; and episodes of decompensation (the “paragraph
B criteria”). § 404.1520a(c)(3). “The sequential evaluation process may be terminated at step two
only when the claimant’s impairment or combination of impairments would have no more than a

3

minimal impact on [his or] her ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir.
2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001).
Third, the claimant must establish that his or her impairment meets or equals an
impairment listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d). If the claimant has
one of, or the medical equivalent of, these impairments, then the claimant is per se disabled
without consideration of the claimant’s age, education, or work history. Id.
Before considering step four, the ALJ must determine the claimant’s residual functional
capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC is defined as “the most a claimant
can do despite [his] limitations.” Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20
C.F.R. § 404.1545(a)(1)). At step four, the ALJ determines whether the claimant can return to his
past relevant work, by comparing the claimant’s RFC with the physical and mental demands of
the

claimant’s

past

relevant

work.

20

C.F.R.

§§ 404.1520(a)(4)(iv),

404.1520(f),

416.920(a)(4)(iv), 416.920(f); McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011). If the
claimant can still perform past relevant work, he will not be found to be disabled; if the claimant
cannot, the analysis proceeds to the next step. Id.
At step five, the ALJ considers the claimant’s RFC, age, education, and work experience
to see if the claimant can make an adjustment to other work in the national economy. 20 C.F.R.
§§ 416.920(a)(4)(v). If the claimant cannot make an adjustment to other work, then he will be
found to be disabled. 20 C.F.R. §§ 416.920(a)(4)(v), 404.1520(a)(4)(v).
Through step four, the burden remains with the claimant to prove that he is disabled.
Brantley, 2013 WL 4007441, at *3 (citation omitted). At step five, the burden shifts to the
Commissioner to establish that the claimant maintains the RFC to perform a significant number
of jobs within the national economy. Id. “The ultimate burden of persuasion to prove disability,

4

however, remains with the claimant.” Meyerpeter v. Astrue, 902 F. Supp.2d 1219, 1229 (E.D.
Mo. 2012) (citations omitted).
IV.

Decision of the ALJ

The ALJ found Miller had the severe impairments of degenerative disc disease of the
lumbar

spine,

osteoporosis,

chronic

obstructive

pulmonary

disease/chronic

bronchitis/emphysema, and migraine headaches, but that no impairment or combination of
impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. After considering the entire record, the ALJ determined that
Miller had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b),
except that she can only occasionally climb ramps and stairs, stoop, kneel, and crouch; never
climb ladders, ropes, or scaffolds or crawl; and only occasionally be exposed to vibration. The
ALJ further determined that Miller can frequently use her left upper extremity for fine and gross
manipulation and would need to alternate between sitting and standing one to three minutes for
every hour but would remain at the workstation.
The ALJ found Miller unable to perform any of her past relevant work as a kitchen
helper, cleaner, quality control technician, and injection molding machine tender, but that
considering her age, education, work experience and RFC, there are jobs that exist in significant
numbers in the national economy that she can perform, such as officer helper, photocopy
machine operator, and furniture rental consultant. Thus, the ALJ found Miller was not disabled
as defined by the Act.
V.

Discussion

In her appeal of the Commissioner’s decision, Miller argues the ALJ erred by failing to
account for her absenteeism in the RFC (Doc. No. 22 at 7-8). Miller contends she must seek

5

treatment numerous times throughout the year for her impairments, in addition to the time she
would be absent from work due to the impairments themselves, such as migraines and pain. In
2012, Plaintiff treated with medical providers at least 11 times during the relevant period (Tr.
285-303, 310, 337, 342, 352, 361, 408, 462, 496, 498). She saw treatment providers three times
in October 2012 (Tr. 285-303), and five times in November 2012 (Tr. 310, 342, 352, 496, 498).
In 2013, Miller sought treatment “at least” 17 times (Tr. 323, 327, 330, 333, 350, 354, 356, 381,
496, 512, 547, 554, 561, 617-619). Miller argues this absenteeism is directly caused by her
impairments, and that the ALJ is, therefore, required to include it in her RFC determination.
Miller also notes the vocational expert’s testimony that a rate of absenteeism in excess of two
days per month would preclude competitive employment (Tr. 65-66). The Commissioner
responds that the ALJ properly determined Miller’s RFC after evaluating the medical evidence
and Miller’s credibility. (Doc. No. 29 at 4-13).
A claimant’s RFC is defined as the most an individual can do despite the combined
effects of all of his or her credible limitations. Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.
2009) (citing 20 C.F.R. § 404.1545(a)(1)). The ALJ must determine a claimant’s RFC based on
all of the record evidence, including the claimant’s testimony regarding symptoms and
limitations, the claimant’s medical treatment records, and the medical opinion evidence. McCoy
v. Astrue, 648 F.3d 605 (8th Cir. 2011). An ALJ may discredit a claimant’s subjective
allegations of disabling symptoms to the extent they are inconsistent with the overall record as a
whole. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984); 20 C.F.R. § 404.1529; SSR
96–7p. It is the claimant’s burden, not the Commissioner’s, to prove the claimant’s RFC. See
Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004); McKinney v. Apfel, 228 F.3d 860, 863
(8th Cir. 2000).

6

Credibility
The Court will first consider the ALJ’s credibility determination, as the ALJ’s evaluation
of Miller’s credibility was essential to her determination of other issues. See Wildman v. Astrue,
596 F.3d 959, 969 (8th Cir. 2010) (“[The plaintiff] fails to recognize that the ALJ’s
determination regarding her RFC was influenced by his determination that her allegations were
not credible.”); Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005) (“The ALJ must first
evaluate the claimant’s credibility before determining a claimant’s RFC.”); Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002) (same). Here, the ALJ found Miller’s statements
concerning the intensity, persistence and limiting effects of her symptoms not entirely credible in
that they are not supported by the medical record evidence (Tr. 20-27).
In evaluating a claimant’s credibility, the ALJ is required to apply the factors from
Polaski, 739 F.2d at 1322, which include the claimant’s daily activities; the duration, frequency,
and intensity of pain; dosage, effectiveness, and side effects of medications and medical
treatment; and the claimant’s self-imposed restrictions. The claimant’s relevant work history and
the absence of objective medical evidence to support the complaints may also be considered, and
the ALJ may discount subjective complaints if there are inconsistencies in the record as a whole.
Choate v. Barnhart, 457 F.3d 865, 871 (8th Cir. 2006) (citing Wheeler v. Apfel, 224 F.3d 891,
895 (8th Cir. 2000)). The ALJ may not, however, discount a claimant’s allegations of disabling
pain simply because the objective medical evidence does not fully support those claims.
O’Donnell v. Barnhart, 318 F.3d 811, 816 (8th Cir. 2003). The Court will uphold an ALJ’s
credibility findings, so long as they are adequately explained and supported. Ellis v. Barnhart,
392 F.3d 988, 996 (8th Cir. 2005).

7

Here, the ALJ identified several reasons for discounting Miller’s credibility. First, the
ALJ found Miller’s medical treatment records did not support the severity of her allegations
regarding her impairments and symptoms (Tr. 26). In April and August 2012, prior to her onset
date, Miller exhibited a normal range of motion in her musculoskeletal system, with no
tenderness or edema (Tr. 399, 420). The ALJ found these records “do not underscore escalating
spinal symptoms that led to symptoms as severe as of September 20, 2012 that the claimant
stopped working then. These records contradict the claimant’s allegation that she stopped
working as of her alleged onset date because of her conditions.” (Tr. 23-24). In October 2012,
after Miller stopped working and filed her applications for benefits, a physical therapist observed
that her allegations about her “worst” wrist pain appeared “somewhat high” in comparison to
what the therapist observed during treatment (Tr. 204, 285).
In November 2012, Miller saw Colleen Glisson, M.D., for reported left wrist pain (Tr.
496). Upon examination, Dr. Glisson observed that Miller was not in acute distress and displayed
few wrist symptoms, with full flexion and extension of the wrists to 75 degrees, and full
pronation and supraspination (Tr. 497). A magnetic resonance imaging (MRI) scan performed on
November 19, 2012 indicated mild radiocarpal and mild to moderate osteoarthritis in the
triscaphe and first carpometacarpal joint, along with mild bone edema in the triscaphe joint and
no significant tendinopathy (Tr. 310). When Miller was reexamined on November 29, 2012, Dr.
Glisson noted that Miller again displayed no acute distress or obvious swelling, deformity, or
atrophy in the wrist, although she had some tenderness (Tr. 498). Miller had intact sensation in
her median, radial, and ulnar nerves, although she had a positive Phalen maneuver (Tr. 498). Dr.
Glisson opined there was no evidence of any tear or significant inflammation, and recommended
a corticosteroid injection to the left wrist and the continued use of a wrist splint (Tr. 499). After

8

two injections, Dr. Glisson returned Miller to work without restriction on March 11, 2013 (Tr.
500).
In February 2013, Miller complained of rib pain to David A. Poggemeier, M.D. and again
displayed normal range of motion in her spine and extremities with no tenderness or edema (Tr.
447). X-rays of Miller’s lumbar spine taken in April 2013 were normal with no fracture, normal
disc spaces, and normal spinal alignment, and an MRI revealed only mild degenerative changes
and mild stenosis (Tr. 453-55). In March 2013, Miller reported to a physical therapist that her
lumbar spine caused no limitations in her activities of daily living (Tr. 384).
On May 16, 2013, Ravindra Shitut, M.D., conducted an examination related to Miller’s
alleged back pain (Tr. 505). Dr. Shitut recorded Miller’s statement that “she had low back pain
for the last 30 years” that had recently worsened (Tr. 505). Dr. Shitut noted that Miller had mild
stiffness in her lower back, particularly with flexion, but that she had no limitations to her
capacity to walk (Tr. 507). Straight leg raise tests were negative, and her sensory, motor, and
reflex examination was normal, with no obvious atrophy (Tr. 507). Dr. Shitut reviewed Miller’s
lumbar MRI, noted mild degenerative changes, and observed a degenerative bulge at T12-L1 “of
questionable clinical significance” (Tr. 507). Dr. Shitut remarked, “[o]verall, I am fairly
unimpressed with” Miller’s complaints of back pain and recommended only conservative
treatment, including long-term exercise, weight control, and smoking cessation (Tr. 505). No
follow up appointments were scheduled. The ALJ observed that “the overall tenor of the notes
from this visit indicates the possibility of claimant symptom exaggeration.” (Tr. 24).
On August 14, 2013, Shawn L. Berkin, D.O., performed an independent medical
examination of Miller (Tr. 512-20). At that time, Miller reported weakness to her left wrist and
difficulty gripping; she rated her left wrist pain at an intensity level of one to two, on a scale of

9

ten (Tr. 514). After summarizing her subjective complaints and medical history, Dr. Berkin
noted that upon examination, Miller had no swelling or deformity in the left hand elbow or wrist
but displayed localized medial tenderness, and had numbness in her left little finger (Tr. 516).
Miller had full flexion and extension in her left elbow, and normal bicep, tricep, and
brachioradialis reflexes of both upper extremities (Tr. 516). Despite limited range of motion in
her lumbar spine, straight leg raise tests were negative for lower back pain or radicular pain, and
Miller displayed normal lower extremity muscle bulk and tone (Tr. 517).
Dr. Berkin opined that Miller had a left wrist strain with irritation of the triangular
fibrocartilage complex caused in September 2012 when she lifted a load of books, causing her
left wrist to pop (Tr. 518). He recommended only conservative treatment, including the use of a
wrist splint, exercises, and anti-inflammatory medications (Tr. 519). According to Dr. Berkin,
this injury was the direct and proximate cause of a permanent partial disability of 20% of the left
upper extremity at the level of the wrist (Id.). As for Miller’s chronic low back condition, Dr.
Berkin reported a preexisting permanent partial disability of 20% of the body as a whole at the
level of the lumbosacral spine, which represented a hindrance or obstacle to employment or
reemployment at the time of the September 2012 injury involving her left wrist. He opined that
the combination of these two disabilities is greater than their sum and that a loading factor should
be applied. (Id.)
In terms of treatment recommendations, Dr. Berkin directed Miller to avoid excessive
gripping, pinching, pulling, twisting, or reaching with her left hand for extended periods of time;
avoid torque-like or high-impact stresses to her hand; and limit her exposure to operating power
tools or vibratory equipment (Tr. 519). Dr. Berkin also stated that Miller should pace herself if
required to perform hand-intensive activities for extended periods of time and take frequent

10

breaks to avoid exacerbation of her symptoms or further injury to her left hand and wrist (Id.).
With respect to her lower back, Dr. Berkin recommended that Miller should avoid excessive
squatting, kneeling, stooping, turning, twisting, lifting, and climbing (Tr. 520). He recommended
anti-inflammatory medications and muscle relaxants as needed for her symptoms as well as
stretching, range of motion and muscle strengthening exercises to improve her strength and
endurance, and preserve her current level of unction (Id.). The ALJ gave Dr. Berkin’s opinion
great weight, and Miller has not challenged the weight given to this opinion (Tr. 26).
In September 2013, Najma Lokhandwala, M.D., observed that despite Miller’s
complaints of neck stiffness, anxiety, and depression, she had normal musculoskeletal and
neurological function and displayed appropriate mood and affect (Tr. 541). Dr. Lokhandwala
opined that Miller did not qualify for disability benefits (Tr. 526). Similarly, in February 2014,
Dr. Lokhandwala’s physical and psychiatric examination of Miller was normal (Tr. 528-29).
In April 2014, Jamie Tueth, D.O., conducted a normal mental examination of Miller (Tr.
640). In September 2014, consultative examiner, Thomas Spencer, Psy.D., observed Miller had
no hygiene or grooming impairments and that she had intact judgment and insight (Tr. 688). He
assessed Miller with depressive disorder, and indicated that any mental impairment only
marginally interfered with her ability to engage in employment, and was situational in nature (Tr.
690). The ALJ gave great weight to Dr. Spencer’s opinion, and Miller does not contest the
weight given to this opinion in her brief (Tr. 20).
In sum, the objective medical evidence of record and medical opinions do not support
Miller’s subjective allegations. During several examinations by treating physicians, Miller
exhibited few symptoms and appeared to be in no significant distress (Tr. 204, 285, 447, 497-98,
505, 507, 512-20, 526, 528-29, 541). One such examination revealed that Miller had full flexion

11

and extension of the wrists (Tr. 497). A subsequent MRI confirmed mild to moderate
osteoarthritis in the left wrist and no significant tendinopathy (Tr. 310). An examination related
to Miller’s alleged back pain showed mild degenerative changes and a degenerative disc bulge
“of questionable clinical significance” (Tr. 507). The absence of an objective medical basis to
support the degree of subjective complaints is an important factor in evaluating the credibility of
the claimant’s testimony and complaints. See Gonzalez v. Barnhart, 465 F.3d 890, 895 (8th Cir.
2006) (citing Ramirez v. Barnhart, 292 F.3d 576, 581 (8th Cir. 2002)); 20 C.F.R. §§ 404.1529(c)
& 416.929(c). See also Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004) (lack of objective
medical evidence is a factor an ALJ may consider).
The ALJ also considered that Miller has not worked for more than half of her adult life,
and her longest period of employment was 16 months. (Tr. 26; 687). A poor work history can
lessen a claimant’s credibility. Woolf v. Shalala, 3 F.3d 1210, 1214 (8th Cir. 1993); see also
Fredrickson v. Barnhart, 359 F.3d 972, 976-77 (8th Cir. 2004) (holding that the claimant was
properly discredited due, in part, to her sporadic work record, reflecting poor earnings and
multiple years with no reported earnings, pointing to potential lack of motivation to work);
Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001) (a poor work history “may indicate a
lack of motivation to work, rather than a lack of ability.”); Comstock v. Chater, 91 F.3d 1143,
1147 (8th Cir. 1996) (low earnings and significant breaks in employment cast doubt on
complaints of disabling symptoms).
Further, the ALJ found Miller was not significantly limited in her daily activities (Tr. 26).
Miller reported she was able to care for pets, perform housework, handle her personal care, and
prepare meals. (Tr. 235-38) She maintains regular contact with her children and spends the day
cleaning her house, running errands and playing computer games (Tr. 239). She shops for

12

groceries by herself and engages in hobbies requiring significant hand use, i.e., sewing, quilting,
crocheting and crafting (Tr. 516). An ALJ may view “[a]cts which are inconsistent with a
claimant’s assertion of disability” to “reflect negatively upon that claimant’s credibility.” Chaney
v. Colvin, 812 F.3d 672, 677 (8th Cir. 2016) (quoting Johnson v. Apfel, 240 F.3d 1145, 1148
(8th Cir. 2001)); see also Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (finding activities
such as driving his children to work, driving his wife to school, shopping, visiting his mother,
taking a break with his wife between classes, watching television, and playing cards were
inconsistent with claimant’s complaints of disabling pain). To be sure, the ability to engage in
these kinds of activities alone is insufficient reason to discredit Miller’s subjective complaints.
See Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir. 1996). But the extent of her activities,
particularly when considered in conjunction with the medical record in this case, further supports
the ALJ’s decision. Milam v. Colvin, 794 F.3d 978, 985 (8th Cir. 2015) (collecting cases).
Lastly, the ALJ noted that Miller’s records suggested elements of secondary gain
motivation in her application for disability benefits (Tr. 27). Miller saw a psychiatrist in February
2014 and stated that she wanted to get her claim for disability benefits filed and was advised to
see a psychiatrist as part of her claim (Tr. 526). Dr. Lokhandwala examined Miller and opined
that she did not qualify for disability. (Tr. 526-29). The Eighth Circuit has recognized that an
ALJ may consider a claimant’s financial motivation to qualify for benefits while assessing the
credibility of a claimant’s subjective pain complaints. See, e.g., Ramirez, 292 F.3d at 581-82 n.
4; Gaddis v. Chater, 76 F.3d 893, 895-96 (8th Cir. 1996) (finding that ALJ properly discounted
credibility of claimant who was financially motivated to seek disability benefits).
In summary, the Court finds the ALJ considered Miller’s subjective complaints on the
basis of the entire record and set out numerous inconsistencies that detracted from her credibility.

13

Because the ALJ’s determination is supported by good reasons and substantial evidence, the
Court defers to her determination. Cobb v. Colvin, No. 2:13CV0115 TCM, 2014 WL 6845850,
at *14 (E.D. Mo. Dec. 3, 2014) (internal citations omitted). See also Polaski, 739 F.2d at 1322.
RFC
Miller relies on Baker v. Apfel, 159 F.3d 1140 (8th Cir. 1998), in support of her
argument that this matter should be remanded because the ALJ failed to consider her
absenteeism in determining her RFC (Doc. No. 22 at 7). In Baker, the plaintiff’s treating
physician opined that plaintiff would “miss a great deal of work.” Id. at 1146. The physician’s
opinion was supported by “page after page of medical records detailing [plaintiff’s] injections of
Demerol, after which he must be driven home by someone else due to the effects of the drug.”
Id. The record also established that plaintiff received 60 Demerol injections over the course of
six months, and would be absent at least twenty-six days during the year. Id. Because the ALJ
failed to consider that plaintiff would be absent from the workplace to receive these injections,
the Eighth Circuit reversed and remanded the case.
Unlike the record in Baker, there is no objective evidence that Miller would “miss a great
deal of work,” or that her condition required aggressive treatment, such as injections. Moreover,
Miller’s representation that she would exceed the two day per month limit outlined by the
vocational expert is not supported by the record. For these reasons, the Court finds the ALJ’s
decision not to include absenteeism in the RFC is supported by substantial evidence in the
record. See Blackburn v. Berryhill, No. 16-3140-CV-S-ODS, 2017 WL 1968320, at *3 (W.D.
Mo. May 12, 2017) (plaintiff’s representation that she would miss 1.5 days of work per month
was not supported by objective medical evidence); see also Jeffries v. Berryhill, No. 4:16 CV 18
JMB, 2017 WL 365439, at *6 (E.D. Mo. Jan. 25, 2017) (“Although Plaintiff argues that it is

14

‘incontrovertible’ that she will miss numerous days, the record does not support this argument
and substantial evidence supports the ALJ’s RFC determination. At best, Plaintiff proved how
many times she has visited a doctor, but she did not show that each doctor’s visit would result in
her missing an entire day of work.”); Michel v. Astrue, No. 4:10CV3258, 2011 WL 6078148, at
*7 (D. Neb. Dec. 7, 2011) (unpublished) (affirming ALJ decision where “there is no evidence
Plaintiff has had any problems with absenteeism,” despite physician prediction that claimant
would be absent more than four times per month).
Furthermore, the ALJ did not simply adopt a light work RFC wholesale. Instead, she
determined Miller’s RFC after careful consideration of all the relevant evidence, and properly
incorporated only those impairments and restrictions found credible. See McGeorge v. Barnhart,
321 F.3d 766, 769 (8th Cir. 2003) (the ALJ “properly limited his RFC determination to only the
impairments and limitations he found credible based on his evaluation of the entire record.”). As
discussed above, there is substantial evidence in the record as a whole to support the ALJ’s
determination that Miller was capable of performing light work, with some restrictions that did
not include absenteeism.
Conclusion
For these reasons, the Court finds the ALJ’s decision is supported by substantial evidence
contained in the record as a whole, and, therefore, the Commissioner’s decision should be
affirmed.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and
Plaintiff’s Complaint is DISMISSED with prejudice. A separate Judgment will accompany this
Order.

15

Dated this 24th day of August, 2017.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

16