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Hager v. Berryhill

United States District Court, E.D. Missouri, Eastern Division

March 27, 2019

ROBERT HAGER, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Operations, Social Security Administration Defendant.



         Robert Hager brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Commissioner's decision denying his application for disability insurance benefits. Because the Commissioner's decision is supported by substantial evidence in the record as a whole, I will affirm the Commissioner's decision.


         On January 13, 2014, Hager filed an application for disability insurance benefits pursuant to 42 U.S.C. §§ 401 et seq. (Tr. 148). He alleged an initial onset date of January 10, 2014. (Tr. 149). Hager's application was denied on initial consideration. (Tr. 159). He requested a hearing before an Administrative Law Judge (ALJ). (Tr. 163-164). Hager, accompanied by counsel, attended the first hearing on February 11, 2016. (96-147). A second hearing was conducted on August 16, 2016, to allow for additional cross-examination of the vocational expert (VE). (Tr. 49-95). The ALJ issued a decision denying Hager's application on September 7, 2016. (Tr. 23-44). On October 16, 2017, the Appeals Council denied Hager's request for review. (Tr. 1). Hager filed the present appeal for judicial review, arguing that: 1) the ALJ erred in failing to evaluate whether Hager's fibromyalgia was equivalent to one of the listed impairments in the Social Security Administration's regulations; 2) the ALJ erred in rejecting the findings of Hager's mental health provider, who had concluded that Hager's mental condition was disabling; 3) the ALJ erred in failing to consider all of the relevant evidence in formulating Hager's residual functional capacity (RFC); 4) the ALJ erred in submitting an improperly-formed RFC determination to the vocational expert (VE); 5) the ALJ erred in relying on the VE's testimony because it lacked sufficient foundation; and 6) the ALJ erred in deciding Hager's case “against the weight of all of the substantive evidence.” (Doc. 16 at 18-21, 21-27, 27-29, 29-30, 30, 31-32).

         In response, the Commissioner argues that 1) the ALJ properly evaluated Hager's credibility, his subjective complaints, and the applicability of his fibromyalgia to the Social Security Administration's listings of impairments; 2) the ALJ properly evaluated the medical opinion evidence of record; and 3) the ALJ properly formulated Hager's RFC and properly relied on the VE's testimony in reaching the conclusion that Hager was not disabled. (Doc. 25 at 3-10, 10-15, 15-18).

         In reply, Hager argues that the medical evidence the ALJ used in evaluating his subjective complaints of pain was inapposite because such evidence is not suitable for assessing fibromyalgia. (Doc. 26 at 1-2). Hager further argues that the ALJ, in evaluating Hager's credibility, gave no weight to the longitudinal record as a whole, including Hager's work history and his efforts to seek treatment. (Id. at 2-3). Hager argues that the Commissioner improperly introduced evidence in her response detracting from Hager's credibility because that evidence was not explicitly mentioned by the ALJ in his opinion. (Id. at 3-4). Hager also reiterates his arguments that his fibromyalgia should have been evaluated as equivalent to a listed impairment and that the ALJ's RFC determination was not supported by substantial evidence. (Id. at 4-5, 6-7). Finally, Hager reiterates his argument that the vocational expert's testimony was unreliable and lacked sufficient foundation for admissibility. (Id. at 7-10).

         Administrative Record

         In the Case Management Order (CMO) issued December 11, 2017, I instructed the parties to attach a statement of uncontroverted material facts to their briefs. (Doc. 5). The CMO specified that each fact was to be set forth in a separately numbered paragraph and supported by citations to the administrative transcript. (Id. at 1-2). Hager has not complied. (Doc. 16). The Commissioner's response indicates that he generally agrees with Hager's recitation of facts, “but not to the many characterizations found therein.” (Doc. 25-1).

         I adopt the Commissioner's response and statement of additional material facts as uncontroverted by Hager. (Doc. 25-2). These statements provide a fair and accurate description of the relevant record before me. I will highlight specific facts as needed in addressing the parties' arguments.

         ALJ Decision

         The ALJ first found that Hager had not engaged in substantial gainful activity from his alleged onset date of January 10, 2014. (Tr. 28). He also found that Hager suffers from the following severe impairments: “inflammatory arthritis, degenerative disc disease of the cervical and lumbar spine; status post right tricep surgery; fibromyalgia; depression; ADHD; and substance abuse disorder[.]” (Id.). The ALJ found that this combination of severe impairments did not equate to one of the listings denominated in 20 CFR 404, Subpt. P, App. 1. (Tr. 29).

         After evaluating Hager's claims, the medical opinion evidence, and the medical evidence of record, the ALJ determined that Hager retained the residual functioning capacity (RFC) to:

[Perform] light work as defined in 20 CFR 404.1567(b) that includes being limited to frequent handling bilaterally; frequent fingering bilaterally with items no smaller than the size of a coin or button; simple, routine, repetitive tasks and simple work related decisions; a work environment free of fast-paced production requirements and few, if any, work place changes; and no interaction with the public and only occasional interaction with coworkers and supervisors.

(Tr. 31). Based on this RFC determination, the ALJ found that Hager was no longer able to perform his past relevant work. (Tr. 36). The ALJ consulted a vocational expert (VE) to assess whether jobs within Hager's RFC existed in significant numbers in the national economy. (Tr. 36-37). The VE testified that Hager would be able to perform work as a mail sorter, router, or night cleaner. (Tr. 37). She further testified that 21, 797 mail sorter jobs, 53, 460 router jobs, and 138, 073 night cleaner jobs existed in the national economy. (Id.). The ALJ therefore determined that Hager was not disabled within the meaning of the Social Security Act. (Tr. 38).


         To be eligible for disability insurance benefits under the Social Security Act, Hager must prove that he is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines disability as the “inability 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 12 months.” 42 U.S.C. § 423(d)(1)(A). An individual will be declared disabled “only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy[.]” 42 U.S.C. § 423(d)(2)(A).

         To determine whether a claimant is disabled, the Commissioner engages in a five-step evaluation process. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The Commissioner begins by deciding whether the claimant is engaged in substantial gainful activity. If the claimant is working, disability benefits are denied. 20 C.F.R. § 404.1520(a)(4)(i). Next, the Commissioner decides whether the claimant has a “severe” impairment or combination of impairments, meaning that which significantly limits her ability to do basic work activities. If the claimant's impairment(s) is not severe, then she is not disabled. § 404.1520(a)(4)(ii). The Commissioner then determines whether claimant's impairment(s) meets or equals one of the impairments listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. If claimant's impairment(s) is equivalent to one of the listed impairments, she is conclusively disabled. § 404.1520(a)(4)(iii). At the fourth step, the Commissioner establishes whether the claimant can perform her past relevant work. If so, the claimant is not disabled. § 404.1520(a)(4)(iv). Finally, the Commissioner determines whether the claimant is capable of performing any other work in the economy. If not, the claimant is declared disabled and becomes entitled to disability benefits. § 404.1520(a)(4)(v).

         I must affirm the Commissioner's decision if it is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). Substantial evidence is less than a preponderance but enough that a reasonable person would find it adequate to support the conclusion. Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). Determining whether there is substantial evidence requires scrutinizing analysis. Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007).

         I must consider evidence that supports the Commissioner's decision as well as any evidence that fairly detracts from the decision. McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010). If, after reviewing the entire record, it is possible to draw two inconsistent positions and the Commissioner has adopted one of those positions, I must affirm the Commissioner's decision. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012). I must “defer heavily to the findings and conclusions of the Social Security Administration.” Wright v. Colvin, 789 F.3d 847, 852 (8th Cir. 2015) (internal citation omitted). I may not reverse the Commissioner's decision merely because substantial evidence could also support a contrary outcome. McNamara, 590 F.3d at 610.

         When evaluating evidence of pain or other subjective complaints, the ALJ is never free to ignore the subjective testimony of the claimant, even if it is uncorroborated by objective medical evidence. Basinger v. Heckler, 725 F.2d 1166, 1169 (8th Cir. 1984). The ALJ may, however, disbelieve a claimant's subjective complaints when they are inconsistent with the record as a whole. See, e.g., Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). In considering the subjective complaints, the ALJ is required to consider the factors set out by Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), which include:

[The] claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as: (1) the claimant's daily activities; (2) the duration, frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions.

Id. at 1322. When an ALJ explicitly finds that the claimant's testimony is not credible and gives good reasons for the findings, the court will usually defer to the ALJ's finding. Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007). However, the ALJ retains the responsibility of developing a full and fair record in the non-adversarial ...

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