United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge.
Virginia Baumer appeals from the Social Security
Administration (“SSA”) Commissioner's final
decision denying her application for disability insurance
benefits (“DIB”), filed pursuant to Title II of
the Social Security Act, 42 U.S.C. §§ 401-33, and
her application for supplemental security income benefits
(“SSI”), filed pursuant to Title XVI of the
Social Security Act, 42 U.S.C. §§ 1381-83c.
Jurisdiction is proper under 42 U.S.C. § 405(g). The
Court first holds the ALJ did not err by formulating
alternative residual functioning capacities
(“RFC”) to find Ms. Baumer was not disabled.
Further, the ALJ properly applied the treating physician
rule. Finally, any error by the ALJ in determining that Ms.
Baumer's mental impairments were not severe was
ultimately harmless. Accordingly, the Court affirms the
ALJ's decision that Ms. Baumer was not disabled from
March 22, 2013 through the date of the decision.
Ms. Baumer's Conditions
Virginia Baumer was born on December 30, 1970; she was
forty-two years old when she filed her application for DIB
and SSI. [AR 177, 194]. Prior to her alleged disability, Ms.
Baumer had worked as a personal assistant and a nanny. [AR
222]. Ms. Baumer claims she became disabled on March 22,
2013. [AR 177].
Baumer's symptoms began when she experienced numbness in
her fourth and fifth fingers on her left hand. [AR 285]. In
June 2012, approximately one year after the onset of these
symptoms, she visited Dr. Gregory Kirkorowicz for a
comprehensive neurological consultation. [AR 285]. Dr.
Kirkorowicz stated that Ms. Baumer was “affected by
neurological symptoms such as urinary incontinence,
paresthesias, loss of fine motor movements and frequent
headaches.” [AR 290]. Dr. Kirkorowicz recommended Ms.
Baumer receive an MRI, and he noted that “further study
is now urgently needed.” [Id.]
October 18, 2012, Ms. Baumer visited Dr. Cyrus Mody, who
performed MRIs of her brain and spine. Those scans revealed
“multiple deep white matter lesions involving both
hemispheres” of her brain and “deep white matter
pathology” of the cervical spine. [AR 295]. Dr. Mody
noted that “[t]he most likely etiology for this disease
would be multiple sclerosis (“MS”).”
this diagnosis, Ms. Baumer moved from California to Colorado
to establish care for her disease and to be closer to her
family. [AR 420]. In August 2013, Dr. Augusto Miravalle began
managing Ms. Baumer's neurological care. [AR 530].
Physician assistant Tom Stewart regularly observed that Ms.
Baumer had normal speech and cognition but major symptoms of
gait disorder, numbness and tingling in her extremities, back
pain, urinary frequency, and fatigue. [AR 309-10, 389, 398,
415-17]. He also noted that Ms. Baumer demonstrated a right
hand tremor, slow foot tap, and mild difficulty tandem
walking. [AR 309-10, 392, 399, 404-05, 415-17]. Two MRIs
revealed lesions on her brain and brainstem. [AR 450-52,
January 4, 2014, consultative physician Dr. Adam Summerlin
examined Ms. Baumer. [AR 335]. Dr. Summerlin documented
several incidents during the examination that led him to be
skeptical of Ms. Baumer's reported symptoms and physical
abilities. [AR 336-37]. For example, although Ms. Baumer
“had to get up three times during the course of the
40-minute interview and examination to use the rest room[,
]” she “was only gone for approximately 60-70
seconds, and given the slow rate of ambulation and distance
to the bathroom, it is improbable that she did more than walk
to the bathroom, turn around, and come back to the exam
room.” [AR 336-37]. Dr. Summerlin concluded Ms.
Baumer's presentation was “somewhat uncommon with
regard to multiple sclerosis[, ]” and “[p]hysical
examination finding[s] are inconclusive for any definite
diagnosis.” [AR 339-40]. Regarding Ms. Baumer's
physical abilities, he stated she had a maximum standing and
walking capacity of up to two hours “if there is an
objective etiology for the wide-based gait and gait
instability.” [AR 339].
month later, Ms. Baumer visited Dr. Stuart Kutz for a
detailed mental status examination. [AR 343]. Dr. Kutz noted
that Ms. Baumer presented “as somewhat dramatic and
probably with histrionic features.” [AR 347]. For
example, when Dr. Kutz asked Ms. Baumer to spell
“house, ” Ms. Baumer responded,
“h-u-s-c-e.” [Id.] Dr. Kutz found the
attempt “d[id] not seem credible given her Associate of
Arts degree and this unusual spelling.” [Id.]
After Dr. Kutz questioned Ms. Baumer about the spelling, she
proceeded to spell the word correctly. [Id.]
Ultimately, Dr. Kutz wrote he “believe[d] that there is
symptom exaggeration here, ” and “her degree of
displayed dysfunction seems well beyond her actual symptoms .
. . .” [AR 348]. Furthermore, he concluded that Ms.
Baumer's “attention/concentration, persistence and
pace in task completion, and social adaptation would be
mildly to moderately impaired at most.” [AR 349].
10, 2014, speech pathologist Debra Bandstra performed a
cognitive functional capacity exam on Ms. Baumer. [AR 475].
Ms. Bandstra found that Ms. Baumer was significantly impaired
in a number of areas, including her ability to
“maintain attention and concentration for extended
periods of time.” [AR 473]. However, Ms. Bandstra noted
that Ms. Baumer's “unusual behavior and lack of
effort may have negatively affected [the] test
results.” [AR 475].
days later, occupational therapist Kristina Anderson
completed an assessment of Ms. Baumer's ability to do
work-related activity. [AR 466-72]. Ms. Anderson found Ms.
Baumer had significant physical limitations. For example, she
stated Ms. Baumer was limited to standing for forty-five
consecutive seconds and for a maximum of two minutes during
an eight-hour work day. [AR 467]. However, Ms. Anderson noted
that it was questionable whether Ms. Baumer gave “full
effort” during each assessment and that Ms. Baumer was
unwilling to attempt several of the tests. [AR 466-67].
Additionally, Ms. Anderson observed inconsistencies in some
of Ms. Baumer's claims. For example, Ms. Baumer was
unwilling to do an ankle strength test, because she reported
experiencing “shooting bolts of flame throwing
fire” if someone touched her foot, but she was able to
tolerate the contact of her socks and shoes, and she had
received a manicure (presumably pedicure) in the recent past.
February 5, 2015, occupational therapist Kristine Couch
performed a functional abilities evaluation of Ms. Baumer.
[AR 492]. Ms. Couch found Ms. Baumer sustained a maximum
seated tolerance of sixty consecutive minutes, a maximum
standing tolerance of fifteen consecutive minutes, and could
walk fifty feet. [AR 493]. Ms. Couch concluded that Ms.
Baumer was not capable of maintaining any gainful employment.
agency consultants reviewed Ms. Baumer's medical records
and made findings regarding her ability to maintain
employment. In a psychiatric review technique form, Dr. Gayle
Frommelt found Ms. Baumer had mild limitations in activities
of daily living; mild difficulty in maintaining social
function; and moderate difficulty in maintaining
concentration, persistence, and pace. [AR 92]. She also found
that Ms. Baumer could complete a normal workweek so long as
the work does not involve tasks of more than limited
complexity and attention to detail. [AR 96-97]. In a physical
RFC assessment, Dr. Paul Barrett found that, with some
postural and environmental limitations, Ms. Baumer could
stand or walk for two hours and sit for six hours during an
eight-hour work day. [AR 92-94].
Baumer asserts she first became disabled on March 22, 2013.
[AR 177]. On February 11, 2014, the SSA initially denied her
application for DIB and SSI. [AR 114-19]. Ms. Baumer
subsequently requested a hearing before an ALJ, which took
place on February 11, 2015. [AR 48, 120]. On May 5, 2015, the
ALJ issued an opinion holding that Ms. Baumer is not
disabled. [AR 22-47]. According to the ALJ, although Ms.
Baumer's MS is a severe impairment, it does not meet the
severity of any of the impairments listed in 20 C.F.R. Part
404, Subpart P, Appendix 1. [AR 27-29]. The ALJ then held
that Ms. Baumer maintained the RFC to perform her past
relevant work. [AR 41]. The ALJ proceeded to make an
alternative finding that, even had he assigned a more
restrictive RFC to Ms. Baumer, he would still decide she is
not disabled, because she would be able to perform work that
exists in significant numbers in the national economy. [AR
Appeals Council denied Ms. Baumer's request for review on
November 4, 2016, making the SSA Commissioner's denial
final for the purpose of judicial review. [AR 5-7];
see 20 C.F.R. § 416.1481 (“The Appeals
Council's decision, or the decision of the administrative
law judge if the request for review is denied, is binding
unless you or another party file an action in Federal
district court, or the decision is revised.”). Ms.
Baumer timely appealed the ALJ/Commissioner's final
decision to this Court. Compl., ECF No. 1.
held a hearing regarding Ms. Baumer's application on
February 11, 2015. [AR 48-79]. Ms. Baumer and a vocational
expert testified at the hearing. [AR 49]. Ms. Baumer stated
that the only physical or mental impairment preventing her
from working was her MS. [AR 53-54]. Ms. Baumer said that her
MS resulted in “flares” that exacerbated her
condition and caused her to spend twenty hours in bed each
day. [AR 54-56]. She then testified both that a flare had
begun a week earlier and that she had been in a constant
flare since the beginning of the year. [AR 54-55]. The ALJ
questioned Ms. Baumer about these seemingly contradictory
statements, and Ms. Baumer responded by saying the flare had
been “on and off” since the beginning of the
year. [AR 55]. Ms. Baumer also stated she has spent ninety
percent of her time in bed since the onset of her disability
on March 22, 2013. [AR 57].
Baumer then testified about her physical abilities. She
stated she has trouble lifting her handbag, which weighs
three to five pounds. [AR 62-63]. Additionally, she
frequently drops objects, because her hands are numb and
tingling. [AR 63]. She also testified that she can only stand
for five minutes at a time, because she gets tired. [AR
63-64]. According to Ms. Baumer, she could walk only the
length of a hallway before her right leg would get
“wobbly” and she would lose her balance. [AR
64-65]. In response to questions from her attorney, Ms.
Baumer testified that she spends a typical day in bed
watching television. [AR 66]. She stated that she also likes
to play the games “Words with Friends” and
“Luminosity” “to keep her mind
going.” [AR 66, 70]. She testified that she can
concentrate on those games for a maximum of five minutes. [AR
then questioned the vocational expert. [AR 71-77]. The
vocational expert first testified that Ms. Baumer's past
work included the jobs of nanny and personal attendant, which
involve medium and medium to light work respectively. [AR
71]. The ALJ asked the expert to imagine a hypothetical
individual who could lift twenty pounds occasionally; lift
ten pounds frequently; stand or walk for four hours in an
eight-hour workday; sit for six hours in an eight-hour
workday; occasionally climb ramps or stairs; and never climb
ladders, scaffolds, or ropes. The ALJ then asked the expert
whether the hypothetical person could perform Ms.
Baumer's past work. [AR 73]. The expert testified that
Ms. Baumer could not perform that work, because Ms. Baumer
indicated that her past work required her to lift fifty
pounds. [AR 73-74]. However, the expert opined that Ms.
Baumer could perform the duties of a personal attendant as
the job is generally performed. [AR 74]. The ALJ then added
the following restrictions to the hypothetical individual:
could stand or walk for no more than two hours; sit for six
hours; frequently balance; and occasionally stoop, crouch,
kneel, and crawl. [AR 74]. The expert testified that the
hypothetical person could not perform Ms. Baumer's past
relevant work as she performed it or as it is generally
performed. [Id.] The ALJ then asked the expert
whether the hypothetical person could perform any jobs in the
national economy. The expert testified the person could
perform the duties of a small product assembler, an
electronics worker, and a hand painter and stainer. [AR
Ms. Baumer's attorney questioned the vocational expert.
[AR 76-77]. The attorney asked the expert to consider the
ALJ's second hypothetical individual but with the
additional manipulative restrictions that the person could
only occasionally reach, handle, finger, and feel. [AR 76].
The expert stated that those restrictions would eliminate all
jobs in the national economy. [Id.] The attorney
also asked whether a person with those restrictions who was
off task fifteen percent of the day would be able to perform
Ms. Baumer's past relevant work. [Id.] The
expert testified the person could not. [Id.]
issued an unfavorable decision on May 5, 2015. [AR 25-43].
SSA's Five-Step Process for ...