The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HEATHER MILLER, )
)
Plaintiff, )
)
v. ) No. 4: 19 CV 1693 DDN
)
ANDREW M. SAUL, )
Commissioner of Social Security, )
)
Defendant. )
MEMORANDUM OPINION
This action is before the court for judicial review of the final decision of the
defendant Commissioner of Social Security denying in part the application of plaintiff
Heather Miller for disability insurance benefits under Title II of the Social Security Act
(Act), 42 U.S.C. §§ 401-434. The parties have consented to the exercise of plenary authority
by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the
reasons set forth below, the final decision of the Commissioner is affirmed.
I. BACKGROUND
Plaintiff was born on June 5, 1980. She was 34 years old at the time of her amended
alleged onset date of August 19, 2015. (Tr. 40, 177.) She filed her application on July 11,
2016, claiming disability due to degenerative disc disease, Type I diabetes, nerve damage
to legs and feet, pancreatitis, lower back pain, migraines, carpal tunnel syndrome, and
polymyositis. (Tr. 198.) Her application was denied, and she requested a hearing before an
Administrative Law Judge (ALJ). (Tr. 116-20, 123-24.)
On November 8, 2018, following a hearing, an ALJ issued a decision awarding
benefits, based on the finding that plaintiff became disabled as of March 22, 2018, and
continued to be disabled through the date of the decision. (Tr. 16-29.) The Appeals Council
denied her request for review. (Tr. 1-4.) Thus, the decision of the ALJ stands as the final
decision of the Commissioner.
II. ADMINISTRATIVE RECORD
The following is a summary of plaintiff’s medical and other history relevant to her
appeal.
During the period from August 19, 2015 to February 22, 2018, plaintiff saw her
primary care physician, Kyle Ostrom, M.D., two to four times per month for diabetes,
polyneuropathy, retinopathy, and other conditions. During a March 22, 2018 appointment,
Dr. Ostrom noted that plaintiff’s diabetes remained poorly controlled despite significant
changes in diet and she required large quantities of insulin to treat her symptoms. In
addition to long-acting insulin, plaintiff had begun taking short-acting insulin on an hourly
basis. (Tr. 3083-84.) In June 2018, Dr. Ostrom completed a form indicating plaintiff
injected insulin on an hourly basis. (Tr. 3303-04.)
On September 9, 2015, plaintiff saw Patricia Gant, R.N., to set up a new glucometer.
(Tr. 786.) From January 19 through May 11, 2016, plaintiff saw Ms. Gant approximately
every two weeks for diabetes treatment. (Tr. 584, 587-88, 592-93, 595-97, 620, 628-30,
635-36, 644-45.)
On October 12, 2015, plaintiff was seen in the emergency department for shortness
of breath and a rapid heart rate. (Tr. 776-80.)
Plaintiff was hospitalized December 3-9, 2015, for abdominal pain and pancreatitis.
(Tr. 710-60.) On December 19, 2015, she was seen again in the emergency department for
abdominal pain. (Tr. 701-06.)
On December 24, 2015, plaintiff was hospitalized for two days for intractable nausea
and vomiting. (Tr. 662-99.) She was seen in the hospital for vomiting again on January 8
and 27, and March 2, 2016. (Tr. 638-42, 653-60.)
On April 26, 2016, plaintiff was seen in the emergency department for treatment for
an abscess on her forearm. (Tr. 589-92.)
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About one year later, on April 27, 2017, plaintiff was treated in the emergency
department for high blood sugar. (Tr. 1956-78.)
From January through March 2016, plaintiff received IV fluids to prevent
dehydration at a hospital infusion center approximately eleven times. (Tr. 598, 605, 622-
23, 628, 630-34, 637, 642-43.)
On January 24, 2017, plaintiff saw A. Elbendary, M.D., for an adnexal mass (growth
near the female reproductive system). She decided to undergo a hysterectomy performed
by Dr. Elbendary on February 6, 2017. (Tr. 1848-49, 1854-55.) She was seen for
postoperative follow-up from February through May 2017. At her final postoperative visit
on May 10, 2017, Dr. Elbendary noted plaintiff’s incisions had “finally” healed and she
could resume her previous activities. (Tr. 1864-70.)
On July 26, 2017, plaintiff saw Thomas Riechers, M.D., for a ventral hernia (bulge
in abdominal wall muscles). She underwent a hernia repair by Dr. Riechers on August 3,
2017. At a follow-up on August 16, 2017, Dr. Riechers noted plaintiff was recovering
normally. (Tr. 1942-43, 2207-17, 2228-29.)
The ALJ requested assistance from agency medical expert, Charles Murphy, M.D.
to evaluate plaintiff’s impairments. (Tr. 3305-15.) In July 28, 2018 responses to
interrogatories, Dr. Murphy indicated that plaintiff’s impairments included diabetes
mellitus, peripheral neuropathy, obstructive sleep apnea, chronic kidney disease (stage 1),
degenerative disc disease, a history of pancreatitis, mixed connective-tissue disease, muscle
tear of the left leg, and carpal-tunnel syndrome. (Tr. 3313.)
Dr. Murphy also completed a medical source statement (MSS) to assess plaintiff’s
functional abilities. He opined that plaintiff could frequently lift and carry up to 10 pounds.
She could sit for 6 hours and stand or walk 4 hours total during a workday. Plaintiff did not
have reaching, handling, or fingering limitations. She could occasionally operate foot
controls. Dr. Murphy also assessed postural and environmental limitations. She could
occasionally climb stairs, ramps, ladders or scaffolds, and stoop, crouch and crawl. She
could frequently balance and kneel. (Tr. 3306-11.)
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ALJ Hearing
On May 23, 2018, plaintiff appeared and testified to the following at a hearing before
an ALJ. (Tr. 35-67.) She has past work experience as an assistant manager at a fast-food
restaurant, as a certified nurse’s assistant in a nursing home, and as a cashier at Casey’s.
She left her most recent job as an assistant manager at Burger King because she was sick
and missing too much work. She was unsure whether she resigned from the job or was
terminated. She is unable to work because she cannot sit for longer than fifteen minutes
and can walk only 100 yards. (Tr. 42-44.)
She cannot work due to back, arm, and leg pain. Her fingers go numb five or six
times per day, and she has severe stomach pain. She injects insulin every hour. (Tr. 44-46,
56-57.)
She does not do much on a typical day. She wakes up, takes her blood sugar, eats
breakfast, and then sits around for most of the day. She can perform her own hygiene needs.
She does not do any chores around the house; her mother and husband do most of the work,
including taking care of their dog. In 2017, since her alleged onset date, she traveled by car
to Indianapolis and Colorado Springs on two separate occasions for family visits. (Tr. 48-
54.)
A vocational expert (VE) testified to the following at the hearing. Plaintiff has past
relevant work as a fast food manager and cashier, both classified as light, and as a CNA,
classified as medium. The ALJ asked the vocational expert to consider a hypothetical
claimant who could perform sedentary work. She could frequently finger and handle, and
occasionally balance, stoop, kneel, crouch, crawl, or climb stairs. The hypothetical claimant
could not operate foot controls and had to avoid unprotected heights and moving mechanical
parts. The VE testified that the hypothetical claimant could perform the jobs of optical
goods assembler and touch-up circuit-board worker. The vocational expert testified that a
worker who was off-task 15% of the time--in addition to normal breaks--could not perform
any work in the national economy. (Tr. 60-64.)
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Plaintiff’s counsel then described a hypothetical claimant who would be absent from
work two times per month on a regularly scheduled basis. The VE testified that this
hypothetical employee could not maintain work. (Tr. 65.)
III. DECISION OF THE ALJ
On November 8, 2018, the ALJ issued a decision finding plaintiff disabled as of
March 22, 2018, and that she met the Title II insured status through December 31, 2018.
(Tr. 16-29.) At Step One of the sequential evaluation, the ALJ found that plaintiff had not
performed substantial gainful activity during the relevant period. At Step Two, the ALJ
found that plaintiff had the severe impairments of Type I diabetes with peripheral
neuropathy, chronic kidney disease with diabetic retinopathy, lumbar degenerative disc
disease, obesity, obstructive sleep apnea, pancreatitis, hernia repaired by surgery,
connective tissue disease with tendonitis and a history of carpal tunnel release, left foot
hammertoe, and right foot capsulitis and hammertoe. At Step Three, the ALJ found that
plaintiff did not have an impairment or combination of impairments that met or medically
equals an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 18-20.)
The ALJ found that prior to March 22, 2018, plaintiff had the residual functional
capacity (RFC) to perform a range of sedentary work as defined in 20 C.F.R. § 404.1567(a)
with limitations. She could not operate foot controls with the left or right foot, could only
occasionally climb ramps or stairs, but never climb ladders, ropes, or scaffolds, and only
occasionally balance, stoop, kneel, crouch, or crawl. She could frequently finger and handle
bilaterally. She could not work around unprotected heights or around moving mechanical
parts. Beginning March 22, 2018, however, plaintiff would be off task for 15% of the
workday, in addition to normal breaks, in order to prepare and inject insulin every hour.
(Tr. 21-26.)
At Step Four, the ALJ determined that plaintiff could not return to past work. At
Step Five, the ALJ found that from August 19, 2015 through March 21, 2018, plaintiff’s
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impairments did not prevent her from performing work that existed in significant numbers
in the national economy. Thus, plaintiff was not disabled during that period. (Tr. 26-28,
62.) Beginning March 22, 2018, however, there were no jobs that plaintiff could perform,
and therefore plaintiff became disabled on that date. (Tr. 28-29.)
IV. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings apply the relevant legal standards to facts that are
supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d
935, 942 (8th Cir. 2009). “Substantial evidence is less than a preponderance, but is enough
that a reasonable mind would find it adequate to support the Commissioner’s conclusion.”
Id. In determining whether the evidence is substantial, the court considers evidence that
both supports and detracts from the Commissioner's decision. Id. As long as substantial
evidence supports the decision, the court may not reverse it 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 be entitled to disability benefits, a claimant must prove she is unable to perform
any substantial gainful activity due to a medically determinable physical or mental
impairment that would either result in death or which has lasted or could be expected to last
for at least twelve continuous months. 42 U.S.C. §§ 423(a)(1)(D), (d)(1)(A); Pate-Fires,
564 F.3d at 942. A five-step regulatory framework is used to determine whether an
individual is disabled. 20 C.F.R. § 404.1520(a)(4); see also Bowen v. Yuckert, 482 U.S.
137, 140-42 (1987) (describing five-step process).
Steps One through Three require the claimant to prove: (1) she is not currently
engaged in substantial gainful activity; (2) she suffers from a severe impairment; and (3)
her condition meets or equals a listed impairment. 20 C.F.R. § 404.1520(a)(4)(i)-(iii). If
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the claimant does not suffer from a listed impairment or its equivalent, the Commissioner’s
analysis proceeds to Steps Four and Five. Step Four requires the Commissioner to consider
whether the claimant retains the RFC to perform past relevant work (PRW). Id. §
404.1520(a)(4)(iv). The claimant bears the burden of demonstrating she is no longer able
to return to her PRW. Pate-Fires, 564 F.3d at 942. If the Commissioner determines the
claimant cannot return to her PRW, the burden shifts to the Commissioner at Step Five to
show the claimant retains the RFC to perform other work that exists in significant numbers
in the national economy. Id.; 20 C.F.R. § 404.1520(a)(4)(v).
V. DISCUSSION
Plaintiff argues the ALJ erred in finding she would not have any absences from work
in determining her RFC. She argues that the record evidence demonstrates that her medical
care and need for frequent absences would interfere with her performing full-time work as
described in the ALJ’s RFC finding. She argues the ALJ erred in applying a standard that
medical care must be proven as “medically appropriate and necessary.” She argues the ALJ
should have found her disability began earlier than March 22, 2018 in light of her need for
frequent absences. The Court disagrees.
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 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). “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
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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).
In this case, in assessing plaintiff’s symptoms, the ALJ considered plaintiff’s
allegations that she had to inject insulin every hour and could not work due to hand problems
and arm, back, leg, and stomach pain. To evaluate these allegations, the ALJ considered
plaintiff’s medical treatment, her medications, examiners’ objective findings, and other
evidence. See 20 C.F.R. § 404.1529(c) (listing factors SSA will consider when evaluating
the claimant’s symptoms). After the administrative hearing, the ALJ sought a medical
opinion from Dr. Murphy, who in his July 2018 medical source statement concluded that
plaintiff could perform a full range of sedentary work. (Tr. 3306-13.)
The ALJ concluded, consistent with Dr. Murphy’s assessment, that plaintiff had the
RFC to perform a limited range of sedentary work. (Tr. 21.) See 20 C.F.R. § 404.1567(a)
(describing sedentary exertion). However, for the period beginning March 22, 2018, the
ALJ found plaintiff would be off-task for 15% of the workday in order to prepare and
administer hourly insulin. (Tr. 26, 3083.) As this off-task limitation precluded work,
plaintiff was disabled from March 22, 2018 onward. (Tr. 28-29, 63.)
Plaintiff argues her RFC finding should have included a limitation that she would be
absent from work due to her impairments and treatments. In support, she notes that she
received medical attention on 173 days during a 33-month period that overlaps with the
relevant period. Plaintiff argues she would have been absent from the workplace on each
of these dates, and thus could not maintain employment.
The ALJ found that plaintiff’s total days of treatment did not establish a need for
frequent absences from work. (Tr. 22, 26.) Plaintiff’s argument assumes that she could not
schedule appointments around her work hours and that all the treatment was appropriate
and medically necessary. Thus, the number of days that plaintiff received medical treatment
did not establish disability absent evidence that treatment was medically necessary and
required her to miss work. (Tr. 22, 26.) The ALJ ultimately found insufficient support for
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plaintiff’s claim that her impairments would cause frequent absences. (Tr. 26.) It is
plaintiff’s burden to provide evidence establishing disability. See Kamann v. Colvin, 721
F.3d 945, 950 (8th Cir. 2013). As the record supports the ALJ’s analysis, the ALJ’s finding
is affirmed.
Plaintiff cites three cases from this Circuit in support of her claim that she was
disabled due to absences. While these cases demonstrate that impairment related absences
can preclude employment, they do not suggest that a claimant can simply add up days of
treatment to establish an absence rate. In Maresh v. Barnhart, 438 F.3d 897 (8th Cir. 2006),
the Eighth Circuit found that the claimant was disabled because he met a listing. The court
observed in a footnote that the claimant’s past employment was consistent with disability
because he was frequently absent from the job. Id. at 901 n.2. However, because the
claimant was disabled at Step Three, the case did not hinge on RFC.
The other two cases address RFC, although both cases involve treating physician
opinions supporting frequent absences. In Ross v. Apfel, 218 F.3d 844 (8th Cir. 2000), the
claimant’s treating physician issued several opinions supporting disability, including an
opinion that the claimant could work only four hours per day. See id. at 848. The Eighth
Circuit reasoned that these opinions, and other evidence such as plaintiff’s history of
frequent emergency room visits for severe pain, warranted a finding that the claimant could
not meet attendance requirements of competitive employment. Id. at 850. Similarly in
Baker v. Apfel, 159 F.3d 1140 (8th Cir. 1998), the claimant’s treating physician opined that
he would miss “a great deal of work.” Id. at 1146. The Eighth Circuit found that the
doctor’s opinion, plaintiff’s history of frequent injections for migraines, and his pattern of
absences from class, warranted an attendance related RFC limitation. Id.
Here, unlike Ross or Baker, plaintiff did not provide any medical opinions indicating
her impairments would result in absences from work. Although plaintiff’s medical history
included many emergency room visits or hospitalizations, which could feasibly result in
absences, plaintiff does not differentiate between these visits and routine care. Rather,
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plaintiff simply adds up the number of days that she received treatment and then construes
each treatment day as an absence.
For example, plaintiff’s treatment dates include routine visits to primary care
physician Dr. Ostrom who saw plaintiff two to four times per month and approximately 68
times overall. (Tr. 573-76, 582-86, 594, 598-99, 604-05, 619-20, 632-38, 643-46, 661, 700-
01, 706-07, 764-65, 770-72, 775, 780-81, 783-85, 788-89, 1850, 2133-38, 2152-90, 2193-
2206, 2230-37, 2250-54, 2258-60, 2274-78.) Likewise, plaintiff’s list includes diabetes
appointments with nurse practitioner Ms. Gant, which occurred twice per month from
January through May 9, 2016. (Tr. 584, 587-88, 592-93, 595-97, 620, 628-30, 635-36, 644-
45.) Contrary to plaintiff’s claims, it is not clear that these appointments had to occur this
frequently, and during work hours, and would result in full day absences from work.
Plaintiff’s list of treatment dates also does not differentiate treatment based on
impairments, and therefore includes days when she received care for temporary or short-
term impairments such as her adnexal mass and torn calf muscle. (Tr. 19, 1848-49.)
However, impairments that resolve in less than 12 months cannot support a finding of
disability. See 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1509 (an impairment “must have
lasted or must be expected to last for a continuous period of at least 12 months”).
Moreover, plaintiff attempts to establish a need for medical absences by focusing on
an atypical period in the record. For example, plaintiff notes that she required extensive
treatment for nausea and vomiting from December 2015 through March 2016. While
plaintiff did require extensive care during this period, this period did not last 12 months and
is not representative of her typical level of care during the relevant period. Specifically,
plaintiff did not require fluid infusions or frequent emergency room visits outside of this
period. The ALJ properly determined that the record did not support an RFC limitation for
frequent absences. Plaintiff does not point to any medical opinions to support such a
limitation, nor does she point to any other evidence to meet her burden of explaining why
each day of medical treatment should count as a medically necessary absence.
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VI. CONCLUSION
For the reasons set forth above, the decision of the Commissioner of Social Security
is affirmed. An appropriate Judgment Order is issued herewith.
/s/ David D. Noce k
UNITED STATES MAGISTRATE JUDGE
Signed on October 9, 2020.
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