Baumhower v. Commissioner of Social Security

Filing 21

Memorandum Opinion and Order that Substantial evidence supports the Commissioner's finding that Baumhower had no disability. Accordingly, the decision of the Commissioner denying Baumhower disability insurance benefits is affirmed. Signed by Magistrate Judge William H. Baughman, Jr., on 3/20/19. (D,Ky)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

THERESE A. BAUMHOWER,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 3:18 CV 0098

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION &
ORDER

Introduction
Before me1 is an action by Therese A. Baumhower under 42 U.S.C. § 405(g) for
judicial review of the final decision of the Commissioner of Social Security denying her
application for disability insurance benefits (“DIB”).2 For the reasons set forth below, I
affirm the Commissioner’s no disability finding.

Analysis
Baumhower asks for reversal of the Commissioner’s decision on the ground that it
does not have the support of substantial evidence in the administrative record.
Specifically, Baumhower presents the following issues for judicial review:
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1
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Whether the ALJ failed to appropriately evaluate all alleged
impairments and/or documented diagnoses, including evaluation of

ECF No. 9. The parties have consented to my exercise of jurisdiction.
ECF No. 1.

symptoms and/or treatment that may be related back to expiration of
the date last insured.
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A.

Whether the ALJ failed to follow Social Security rules and regulations
regarding the evaluation of Baumhower’s pain and the assessment of
Baumhower’s limitations.

Step Two argument
Baumhower argues that the ALJ should have found additional mental and physical

impairments severe. While the standard at Step Two is considered a “de minimis hurdle”
designed to weed out “totally groundless claims,”3 it is also true that, as here, any error in
failing to find an impairment to be severe at Step Two constitutes harmless error when the
analysis proceeds to the next steps in the sequential evaluation and all impairments, severe
and non-severe, are considered.4
B.

Step Four argument
As the Social Security Administration has recognized in a policy interpretation

ruling on evaluating symptoms in disability claims,5 in the absence of objective medical
evidence sufficient to support a finding of disability, the claimant’s statements about the
intensity, persistence, and limiting effects of her symptoms will be considered with other

3

Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 577 (6th Cir. 2009) (internal quotation
and citations omitted).
4
Id.
5
Social Security Administration, Social Security Ruling (“SSR”) 16-3p, Evaluation of
Symptoms in Disability Claims, 2017 WL 5180304 (Oct. 25, 2017).
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relevant evidence in deciding disability.6 The regulations make the same point.7
The regulations also set forth factors that the ALJ should consider in evaluating the
intensity, persistence, and limiting effects of an individual’s symptoms. These include
the claimant’s daily activities; the location, duration, frequency, and intensity of the pain;
precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of
medication; and treatment or measures, other than medication, taken to relieve pain. 8
Importantly, evaluation of subjective symptoms is not an assessment of the
claimant’s character or truthfulness. 9 Instead, the ALJ’s examination must focus on
“whether the evidence establishes a medically determinable impairment that could
reasonably be expected to produce the [claimant]’s symptoms and given the [ALJ]’s
evaluation of the [claimant]’s symptoms, whether the intensity and persistence of the
symptoms limit the [claimant]’s ability to perform work-related activities . . . .”10 The
Social Security Ruling makes clear that “[t]he determination or decision must contain

6

Id. at *6 (“If we cannot make a disability determination or decision that is fully
favorable based solely on objective medical evidence, then we carefully consider other
evidence in the record in reaching a conclusion . . . . We will consider an individual’s
statements about the intensity, persistence, and limiting effects of symptoms, and we will
evaluate whether the statements are consistent with objective medical evidence and other
evidence.”).
7
20 C.F.R. § 416.929(c)(2) (“[W]e will not reject your statements about the intensity and
persistence of your pain or other symptoms or about the effect your symptoms have on
your ability to work . . . solely because the available objective medical evidence does not
substantiate your statements.”). The regulations governing supplemental security income
and disability insurance benefits are substantially similar and may be used interchangeably.
8
20 C.F.R. §§ 404.1529(c)(3)(i)-(vii).
9
SSR 16-3p at *11.
10
Id.
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specific reasons for the weight given to the individual’s symptoms, be consistent with and
supported by the evidence, and be clearly articulated so the individual and any subsequent
reviewer can assess how the adjudicator evaluated the individual’s symptoms.”11
The discretion afforded by the courts to the ALJ’s evaluation of such evidence is
extremely broad. A court may not disturb the ALJ’s “analysis and the conclusions drawn
from it – formerly termed a credibility determination –” absent compelling reason.12
Baumhower’s briefs essentially ask the Court to reweigh the evidence, which it may
not do. While Baumhower argues that the ALJ failed to consider her testimony that her
medication causes drowsiness and affects her balance at times,13 the ALJ cited specific
evidence in the record to support his findings regarding medication side effects.14 The
ALJ went through the evidence relevant to other regulatory factors, including activities of
daily living and course of treatment, and again supported his findings with citations to
evidence in the record.15 Under the deferential standard afforded to the ALJ’s evaluation
of subjective symptoms, the ALJ’s determination must be affirmed.

11

SSR 16-3p at *10.
Robinson v. Comm’r of Soc. Sec., No. 17-cv-12202, 2018 WL 2437560, at *9 (E.D.
Mich. May 8, 2018) (citing Sims v. Comm’r of Soc. Sec., 406 F. App’x 977, 981 (6th Cir.
2011); Warner v Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)), report and
recommendation adopted by 2018 WL 2431689 (E.D. Mich. May 30, 2018).
13
ECF No. 13 at 9-10.
14
ECF No. 11, Transcript (“Tr.”) at 16-21.
15
Id.
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Conclusion
Substantial evidence supports the Commissioner’s finding that Baumhower had no
disability. Accordingly, the decision of the Commissioner denying Baumhower disability
insurance benefits is affirmed.
IT IS SO ORDERED.

Dated: March 20, 2019

s/ William H. Baughman, Jr.
United States Magistrate Judge

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