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.

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.

Michael J. Astrue,1

 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of the Social Security Administration, * [UNPUBLISHED]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
-2-

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
-3-

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.

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