United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE
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
Because the Court finds that substantial evidence supports
the decision to deny benefits, the Court affirms the denial
of Plaintiff's application.
Background and Procedural History
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).
decision, the ALJ applied the five-step evaluation set forth
in 20 C.F.R. § 404.1520 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 co-workers, supervisors, and the
general public. (Tr. 21). 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.”
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
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 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.
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.
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).
“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).
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).
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