United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-4409
___________
Denise L. Miller, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
1
Michael J. Astrue, Commissioner *
of the Social Security Administration, * [UNPUBLISHED]
*
Appellee. *
___________
Submitted: May 4, 2007
Filed: May 18, 2007
___________
Before COLLOTON, BEAM, and BENTON, Circuit Judges.
___________
PER CURIAM.
Denise L. Miller appeals the district court’s2 order affirming the denial of
disability insurance benefits and supplemental security income. In her October 2002
application, Miller alleged disability due to an October 2001 back injury. After a
hearing, an administrative law judge (ALJ) determined that (1) Miller’s impairments
1
Michael J. Astrue has been appointed to serve as Commissioner of Social
Security and is substituted as the appellee pursuant to Federal Rule of Appellate
Procedure 43(c)(2).
2
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
of fibromyalgia and lumbar-spine-fracture residuals were severe, but did not meet or
equal a listed impairment; (2) her alleged affective and anxiety disorders had no more
than de minimis effect on her ability to work and were non-severe; (3) her statements
concerning her impairments and their impact on her ability to work were not entirely
credible; (4) she had the residual functional capacity (RFC) to perform a wide range
of sedentary work; (5) she could perform her past relevant work of order clerk; and
(6) she also could perform the alternative jobs of photo finisher and wire patcher,
which existed in significant numbers in the local and national economy. After the
Appeals Council denied review, the district court affirmed in an order and judgment
entered on August 9, 2005.
As a threshold matter, we find that although Miller’s December 9, 2005 notice
of appeal (NOA) was untimely, see Fed. R. App. P. 4(a)(1), (5), her appeal is timely
based on a pro se letter that she filed in the district court on October 7, in which she
asked for more time to file her appeal, stating that “the 60 days are up Oct 8.” We
believe that this filing sufficiently manifested Miller’s intent to appeal, and referred
to the district court’s August 9 entry of judgment. See Fed. R. App. P. 3(c)(1) (NOA
content requirements); Becker v. Montgomery, 532 U.S. 757, 767 (2001)
(“imperfections in noticing an appeal should not be fatal where no genuine doubt
exists about who is appealing, from what judgment, to which appellate court”);
Pierson v. Dormire, No. 06-2545, 2007 WL 984104, at *6 (8th Cir. Apr. 4, 2007)
(reaffirming that letters addressed to judge within prescribed time which manifest
intent to appeal are sufficient to constitute NOA); Isert v. Ford Motor Co., 461 F.3d
756, 762-63 (6th Cir. 2006) (collecting cases and discussing circumstances in which
courts of appeals construed extension motion as NOA).
Turning to the merits, we reject Miller’s contention that the ALJ wrongly
discredited the opinion of Dr. Yvonne Agius, a general practitioner who completed
an RFC assessment which essentially assessed Miller as being unable to pursue
gainful employment. The ALJ properly discounted the RFC assessment after finding
that it did not reference clinical findings or otherwise explain its basis, and that it was
-2-
inconsistent with Miller’s reported activities. See Johnson v. Apfel, 240 F.3d 1145,
1148 (8th Cir. 2001) (ALJ may reject conclusions of any medical expert if they are
inconsistent with record as a whole); Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir.
1998) (treating physician’s opinion is entitled to substantial weight, but is not
conclusive and must be supported by clinical or diagnostic data); Thomas v. Sullivan,
928 F.2d 255, 259 (8th Cir. 1991) (when treating physician’s statement consists of
only conclusory statements, it is not entitled to greater weight than any other
physician’s opinion).
We also conclude the ALJ properly discounted Miller’s assertion that she was
unable to work because of fibromyalgia and back pain. The ALJ’s finding is
supported by his consideration of Miller’s daily activities, the ALJ’s personal
observations, an examining physician’s report of Miller’s “questionable effort” and
lack of participation in his examination, the lack of aggressive medical treatment, the
inconsistency of Miller’s assertions with the objective medical evidence, and her
sporadic work history. See Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (if
adequately explained and supported, credibility findings are for ALJ to make). We
further find the hypothetical to the VE that was adopted by the ALJ, which was more
restrictive than the consulting doctor’s RFC assessment, included all of the
impairments that the ALJ found to be substantiated by the record. See Johnson, 240
F.3d at 1148 (ALJ may exclude alleged impairments he has properly rejected as untrue
or unsubstantiated). Finally, we decline to consider the new evidence that Miller has
submitted to this court, which does not appear to help her in any event. Cf. Jones v.
Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997) (district court’s consideration of
evidence outside record before Commissioner is generally precluded; remand is
warranted only upon showing that new evidence is material, i.e., non-cumulative,
relevant, and probative of claimant’s condition for time period for which benefits were
denied).
Accordingly, we affirm.
______________________________
-3-