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Baumer v. Berryhill

United States District Court, D. Colorado

November 16, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          Michael E. Hegarty, United States Magistrate Judge.

         Plaintiff 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.


         I. Ms. Baumer's Conditions

         Plaintiff 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].

         Ms. 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.]

         On 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”).” [Id.]

         After 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, 464-65].

         On 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].

         One 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].

         On July 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].

         Four 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. [AR 467].

         On 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. [AR 496].

         State 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].

         II. Procedural History

         Ms. 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 42-43].

         The SSA 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.

         III. Hearing Testimony

         The ALJ 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].

         Ms. 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 71].

         The ALJ 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 73-74].

         Finally, 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.]

         The ALJ issued an unfavorable decision on May 5, 2015. [AR 25-43].


         I. SSA's Five-Step Process for ...

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