Baer v. Astrue

Filing 21

MEMORANDUM DECISION that Judge Henries decision is supported by substantial evidence. His ruling is therefore AFFIRMED. Signed by Judge Robert J. Shelby on 07/09/2013. (asp)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

HOPE BAER,
Plaintiff,

MEMORANDUM DECISION
AND ORDER

vs.

CAROLYN W. COLVIN,

Case No. 2:12-cv-162

Defendant.

Hope Baer seeks judicial review of the decision of the Commissioner of Social Security
denying Ms. Baer’s application for Supplemental Security Income under Title XVI of the Social
Security Act. 42 U.S.C. §§ 1381-1383f. After a careful review of the record and for the reasons
discussed below, the court finds that the Commissioner’s decision is supported by substantial
evidence and is therefore AFFIRMED.
BACKGROUND
I.

Procedural History
Ms. Baer filed her social security application on July 14, 2008. She alleged disability due

to depression, high blood pressure, thyroid problems, arthritis, and restless leg syndrome. While
she originally claimed that her disability began in 2002, she later amended her alleged onset date
to July 14, 2008. Her application was denied initially and on reconsideration. Ms. Baer
requested a hearing, which was held on April 21, 2010, in front of Administrative Law Judge
Robin L. Henrie. Judge Henrie denied Ms. Baer’s claim and the Appeals Council denied Ms.

Baer’s request for review. Ms. Baer then filed this appeal.
At the administrative hearing, Judge Henrie noted that Ms. Baer had previously filed
similar claims that were denied by a different ALJ on May 9, 2008. That decision was affirmed
by the Honorable David Nuffer. (See Case No. 2:09-cv-34.) While the court notes that the case
decided by Judge Nuffer is quite similar to the case that is now before the court, the court
reviews Judge Henrie’s decision without considering Judge Nuffer’s previous ruling.
II.

Factual Background
Ms. Baer was forty-eight years old at the time of Judge Henrie’s decision. She has

completed the seventh grade in school. (R. at 375.) Ms. Baer’s last work position was as a
cashier in 2001. She claims that the primary reasons she can no longer work are her back and leg
pain. (R. at 388, 391.)
A. Medical Evidence
The record demonstrates that Ms. Baer saw her treating physicians a number of times
between 2007 and 2010. Having reviewed the entire record, the court concentrates on the results
of four visits which the court finds to be the most significant. On July 27, 2007, Ms. Baer saw
Dr. Easton Jackson and told him that she was applying for disability “based on her restless leg
syndrome and her depression.” She requested a letter verifying her conditions. (R. at 234.) On
February 19, 2008, Ms. Baer reported knee problems to Dr. Jackson and had an x-ray which
confirmed that Ms. Baer had mild osteoarthritis in her knees. (R. at 270-73.) On May 13, 2009,
Dr. Jackson filled out a functional assessment form in which he indicated that Ms. Baer was
disabled. (R. at 248-51.) And on March 17, 2010, Dr. Alan Smith evaluated Ms. Baer. (R. at
290-94.) The next day, Dr. Smith filled out a similar functional assessment form that also
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indicated that Ms. Baer was disabled. (R. at 335-37.) Based on the information provided in
these visits, as well as other information in the record, the court summarizes the medical
evidence supporting Ms. Baer’s conditions below.
First, Ms. Baer has been diagnosed with osteoarthritis. The x-ray that was ordered by Dr.
Jackson on February 19, 2008, confirmed that Ms. Baer has “mild joint space narrowing” in her
knees. (R. at 273.) A physical examination on that date revealed no decrease in range of motion
or strength. (R. at 271.) Ms. Baer had an equivocal result on her McMurray’s test, which
measures possible tears in the meniscus. (Id.) Her results also indicated a “2/4 patellar tendon
reflex,” but Ms. Baer has not provided any evidence to show that a 2/4 reflex is an abnormal
result. Dr. Jackson did not recommend any changes to Ms. Baer’s medication regime during the
February 2008 visit. (Id.) Dr. Jackson noted “general osteoarthritis” as one of Ms. Baer’s
current conditions on a number of visits in 2009. (See, e.g., R. at 191, 195, 199.) On March 17,
2010, Dr. Alan Smith noted “osteoarthritis of the knees” as a diagnosis and stated that Ms. Baer
had “moderate pain” that began “several months ago.” (R. at 290.) Dr. Smith’s statement is
strikingly similar to Dr. Jackson’s statement from February 19, 2008, except that Dr. Jackson
said that the pain began “two weeks ago” instead of “several months ago.” (Compare R. at 290
with R. at 270.)
Second, Ms. Baer has been diagnosed with peripheral neuropathy. Judge Henrie gives a
detailed account of the various references to this condition by Dr. Jackson and Dr. Smith. (R. at
23.) Dr. Jackson first listed peripheral neuropathy as a diagnosis on February 16, 2009, although
it was not discussed in any detail in his office report. (R. at 196-98.) A number of later visits
mention peripheral neuropathy as a current problem, but exam findings for neurological
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symptoms are inconsistent. (Compare R. at 200 (finding that Ms. Baer was positive for
paresthesia on January 30, 2009) with R. at 192 (finding that Ms. Baer was negative for
paresthesia on May 13, 2009).) On March 17, 2010, Dr. Smith stated that Ms. Baer “presents
with a diagnosis of peripheral neuropathy. Has a long history of nerve pain in the feet and legs.
She is on Gabapentin for treatment. Results are moderate, though some continuing pain.” (R. at
290.) Judge Henrie noted that the Gabapentin was originally prescribed for restless leg
syndrome. (R. at 29.)
Third, Ms. Baer suffers from chronic obstructive pulmonary disease (COPD). Ms. Baer
has a history of asthma and smoking and on January 30, 2009, Dr. Jackson noted that Ms. Baer
was extremely dyspneic and very limited in her mobility. (R. at 199.) He stated that her
symptoms were quite severe. (Id.) But office notes from a later visit on May 13, 2009, indicate
that Ms. Baer was not frequently wheezing and did not have a chronic cough. (R. at 192.) When
Dr. Smith examined Ms. Baer on March 17, 2010, he noted that she was negative for cough and
dyspnea, and did not indicate any respiratory problems. (R. at 290.)
Fourth, Ms. Baer alleges that her depression is a disabling condition. Ms. Baer was
diagnosed with dysthymic disorder by Dr. A. L. Carlisle, a consultative psychologist, on February
10, 2009. (R. at 166-68.) Dr. Carlisle assigned Ms. Baer a Global Assessment Functioning score
of 57.1 Dr. Carlisle also provided a history of Ms. Baer’s past. Ms. Baer was born in Greece and
placed in an orphanage as a baby or young child. When she was two years old, she was adopted
by an American family, but the mother in her new family committed suicide when Ms. Baer was
1

A Global Assessment Functioning score of 51-60 indicates “[m]oderate symptoms . . . or
moderate difficulty in social, occupational, or school functioning.” Am. Psychiatric Assoc.,
Diagnostic and Statistical Manual of Mental Disorders (4th ed., text revision 2000), p. 34.
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fourteen. (Id.) Ms. Baer’s treating physicians, Dr. Jackson and Dr. Smith, also report depression
as one of Ms. Baer’s conditions. (See, e.g., R. at 191.)
Fifth, Ms. Baer has been diagnosed with moderate obesity. (R. at 199.) But Dr. Jackson
and Dr. Smith do not mention obesity as a disabling problem and there is no mention of active
treatment for this condition besides encouraging Ms. Baer to control her weight. (R. at 249,
293.)
Finally, Ms. Baer has at times exhibited symptoms of a number of other conditions,
including acid reflux disease, benign hypertension, hypothyroidism, restless leg syndrome, and
generalized pain. (R. at 210.)
In his evaluation conducted on May 13, 2009, Dr. Jackson noted that Ms. Baer was
having “progressive generalized pain, COPD worsening, and neuropathy. I don’t think these are
likely to improve, and will likely worsen over time.” (R. at 191.) That same day, Dr. Jackson
filled out a functional assessment form in connection with Ms. Baer’s disability application. (R.
at 249-51.) In that form, Dr. Jackson diagnosed Ms. Baer with COPD, peripheral neuropathy,
and osteoarthritis in multiple joints. He stated that these conditions were “progressive and
unlikely in [sic] improve to any significant degree.” (R. at 251.) In his opinion, Ms. Baer had
the following capabilities and limitations: she could sit and stand for fifteen minutes at a time;
she could lift up to five pounds, she could occasionally balance, operate a motor vehicle, perform
fine and gross manipulation with her hands, and raise and use her arms; she could not bend,
stoop, or work around dangerous equipment, and she could not tolerate exposure to smoke, dust,
or fumes. (Id.)
A year later, Dr. Smith also filled out a functional assessment form for Ms. Baer. He
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answered every question with the same response given by Dr. Jackson, except that Dr. Jackson
did not respond to a question asking how many hours total Ms. Baer could work in a day. (R. at
249-51, 335-37.) Dr. Smith did answer that question, and stated that Ms. Baer could work for
two hours during an eight-hour workday. (R. at 337.) Both Dr. Jackson and Dr. Smith opined
that they believed Ms. Baer’s pain was “moderate,” that her symptoms of fatigue and malaise
were “moderate,” and that the manifestations of inflammatory arthritis on her skin were
“moderate.” (R. at 250, 336.) Ms. Baer was not on long-term steroid therapy or supplemental
oxygen. (R. at 249-50, 335-36.) Finally, both doctors checked the boxes indicating that Ms.
Baer had “marked restrictions of activities of daily living,” “marked difficulty in maintaining
social functioning,” and “deficiencies of concentration, persistence or pace resulting in frequent
failure to complete tasks in a timely manner (in work settings or elsewhere) due to pain.” (R. at
251, 337.)
These restrictions noted by Ms. Baer’s treating physicians are more severe than those
found by Dr. David Peterson, a state agency physician who reviewed Ms. Baer’s medical records
in August 2008 and concluded that the objective medical evidence did not support Ms. Baer’s
reported limitations. (R. at 140.) Dr. Peterson concluded that Ms. Baer had “essentially normal
objective findings” and that her knee problems were “mild.” He also noted that Ms. Baer had not
received any medical treatment during the eight months before his review of her records. Based
on the exam findings, Dr. Peterson found that Ms. Baer had only non-severe physical limitations
that would not prevent work. (Id.) Ms. Baer’s records were also reviewed by a state agency
psychologist, Dr. Christopher Wehl. Dr. Wehl found that there was insufficient evidence to
evaluate Ms. Baer’s claims of severe mental impairments, a finding that was based, in part, on
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Ms. Baer’s failure to show up for two scheduled consultative examinations. (R. at 158.)
B. Testimonial Evidence
The court has carefully read the transcript of the hearing before Judge Henrie on April 21,
2010, and finds that Judge Henrie has accurately summarized Ms. Baer’s testimony in his
decision. (R. at 27-28.) The court repeats a number of salient points from the hearing transcript
below.
Ms. Baer testified that her arthritis is very painful and that she cannot stand for more than
ten minutes before she feels like she will collapse. (R. at 378, 381.) She cannot reach for items
that are in her cupboard and she has problems folding clothes. (R. at 378.) She has to move
around a lot due to tingling and heaviness in her legs, but she can only walk for three to five
minutes before she has to sit down. (R. at 380, 388.) Her pain is constant, and on the day of the
hearing she testified that her pain was between an 8.5 and a 9 on a ten point scale. (R. at 380,
392.) She takes a Lortab four to six times per day and needs to lie down seven to eight times a
day because of the pain. (R. at 379, 390.) She lies down for twenty to thirty minutes before she
can get up again. (R. at 379.) She testified that she is often depressed and tearful, and that she
gets distracted easily. (R. at 395-96.)
Judge Henrie also heard testimony from a vocational expert, who was asked about the
work possibilities for a hypothetical individual of Ms. Baer’s age, education, and past work
experience who could perform unskilled sedentary work with the following limitations:
•

standing or walking no more than two hours in an eight-hour workday;

•

sitting no more than six hours in an eight hour workday;

•

the ability to make brief postural changes every five to ten minutes;
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•

no more than frequent reaching, handling, and fingering;

•

working in a clean, climate-controlled environment with no dust, smoke, or
fumes;

•

working at a low concentration level;

•

working no more than at a low memory level; and

•

not requiring any driving duties.

(R. at 399-400.) The vocational expert testified that an individual with those limitations could
perform jobs that exist in the national economy, such as a lens block gauger, a level vial sealer,
or a mainspring former. (R. at 400.)
Judge Henrie posed two additional hypotheticals to the vocational expert. In the first,
Judge Henrie asked if any jobs were available if he included a limitation that the individual could
only reach, handle, and finger occasionally. The vocational expert responded that there were not.
(R. at 401.) The vocational expert similarly answered that no jobs were available to an
individual with the limitations posed in Judge Henrie’s third hypothetical, which included the
need to either miss work three to four days per month or work with a productivity rate of fifteen
to twenty percent below average performance. (R. at 401-02.)
ANALYSIS
I.

Standard of Review
The court reviews the Commisioner’s decision to determine whether substantial evidence

in the record as a whole supports the factual findings and whether the correct legal standards
were applied. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Substantial evidence
“requires more than a scintilla but less than a preponderance.” Id. It is “such relevant evidence
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as a reasonable mind might accept as adequate to support a conclusion.” Id. (citation omitted).
Further, the court “will not reweigh the evidence or substitute [its own] judgment for the
Commissioner’s . . . [and] may not displace the agency’s choice between two fairly conflicting
views, even though the court would justifiably have made a different choice had the matter been
before it de novo.” Id. (citation omitted).
II.

Judge Henrie’s Decision
Under the Social Security Act, “disability” is defined 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),
1382c(a)(3)(A). The Act further provides that an individual shall be determined to be disabled
“only if his physical or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his 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), 1382c(a)(3)(B).
A person seeking Social Security benefits bears the burden of proving that because of her
disability, she is unable to perform her prior work activity. Miller v. Chater, 99 F.3d 972, 975
(10th Cir. 1996). Once the claimant establishes that she has such a disability, the burden shifts to
the Commissioner to prove that the claimant retains the ability to do other work and that jobs
which she can perform exist in the national economy. Id.
The Commissioner has established a five-step process for determining whether a person
is disabled:
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(1)

A person who is working is not disabled. 20 C.F.R. § 416.920(b).

(2)

A person who does not have an impairment or combination of
impairments severe enough to limit his ability to do basic work activities
is not disabled. 20 C.F.R. § 416.920(c).

(3)

A person whose impairment meets or equals one of the impairments listed
in the “Listing of Impairments,” 20 C.F.R. § 404, subpt. P, app. 1, is
conclusively presumed to be disabled. 20 C.F.R. § 416.920(d).

(4)

A person who is able to perform work he has done in the past is not
disabled. 20 C.F.R. § 416.920(e).

(5)

A person whose impairment precludes performance of past work is
disabled unless the Secretary demonstrates that the person can perform
other work available in the national economy. Factors to be considered are
age, education, past work experience, and residual functional capacity. 20
C.F.R. § 416.920(f).

Judge Henrie performed this sequential analysis, and found as follows: (1) Ms. Baer has
not engaged in any substantial gainful activity since the date of her application; (2) she has severe
impairments of obesity, COPD, generalized osteoarthritis and osteoarthritis of the knees, and
dysthymia and/or major depressive disorder; (3) she does not have an impairment or combination
of impairments that meets or equals the listings; (4) she is unable to perform past relevant work;
but (5) she is capable of performing jobs that exist in significant numbers in the national
economy. (R. at 21-31.) Based on these findings, Judge Henry concluded that Ms. Baer was not
disabled under the Social Security Act. (R. at 31.)
III.

Ms. Baer’s Objections to Judge Henrie’s Ruling
Ms. Baer believes that Judge Henrie did not base his opinion on substantial evidence for

three reasons. First, she argues that he inappropriately gave no weight to the functional
assessments of her treating physicians. Second, she contends that Judge Henrie failed to

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adequately consider her own subjective testimony. Finally, she asserts that Judge Henrie failed
to identify other work consistent with her functional limitations.
Addressing Ms. Baer’s final argument first, the record shows that Judge Henrie posed
three hypotheticals to the vocational expert during Ms. Baer’s hearing. As described above, the
first hypothetical encompassed all the limitations that Judge Henrie listed as part of Ms. Baer’s
residual functional capacity. (Compare R. at 26 with R. at 399-400.) The expert testified that,
given those limitations, there were a number of jobs available in significant numbers in the
national economy. Judge Henrie then imposed additional restrictions and the expert responded
that no jobs would be available. Ms. Baer does not dispute the vocational expert’s testimony.
Instead, she believes that Judge Henrie failed to properly assess her appropriate residual
functional capacity. She alleges that if he had, he would have concluded that, based on the
vocational expert’s answers to his second and third hypotheticals, there were no jobs available to
Ms. Baer. As a result, it is really Judge Henrie’s residual functional capacity assessment and not
his vocational analysis that Ms. Baer disagrees with. The question of Ms. Baer’s appropriate
residual functional capacity turns on the points that Ms. Baer makes in her first two arguments.
A. Opinions of the Treating Physicians
Ms. Baer first contends that Judge Henrie erred when he gave no weight to the functional
assessments provided by Ms. Baer’s treating physicians, Dr. Jackson and Dr. Smith. In deciding
how much weight to give the opinion of a treating physician, an ALJ must first determine
whether the opinion is entitled to “controlling weight.” Watkins v. Barnhart, 350 F.3d 1297,
1300-01 (10th Cir. 2003). An ALJ must give the opinion of a treating physician controlling
weight if it is both “well-supported by medically acceptable clinical and laboratory diagnostic
11

techniques” and “consistent with other substantial evidence in the record. . . . [I]f the opinion is
deficient in either of these respects, then it is not entitled to controlling weight.” Id. But even if
not entitled to controlling weight, “[t]reating source medical opinions are still entitled to
deference and must be weighed using all the factors provided in 20 C.F.R. § 416.927.” Id.
These factors include the nature and extent of the treatment relationship, the evidence supporting
a medical source’s opinion, and the consistency of that opinion. 20 C.F.R. § 416.927(c)(2)-(4).
An ALJ is not required to “apply expressly” all relevant factors. Oldham v. Astrue, 509 F.3d
1254, 1258-59 (10th Cir. 2007). And a treating physician’s opinion may be rejected if there is a
discrepancy between a very restrictive functional assessment and contemporaneous examination
findings. White v. Barnhart, 287 F.3d 903, 907-08 (10th Cir. 2002).
Judge Henrie provided four reasons why he was giving no weight to the functional
assessments provided by Ms. Baer’s treating physicians.2 (R. at 25.) First, he noted that the
three-page functional assessments filled out by Dr. Jackson and Dr. Smith were identical on
every point except two. Whereas Dr. Smith stated that Ms. Baer could work for only two hours a
day, Dr. Jackson made no response to this question. The comments at the end of the assessments
are also distinct. But because every other question on the form had an identical answer, Judge
Henrie concluded that Dr. Smith simply copied Dr. Jackson’s functional assessment. The court
finds that Judge Henrie’s inference is logical, especially since Dr. Smith had only treated Ms.
Baer once during a visit which occurred the day before he filled out the functional assessment.
As a result, there was substantial evidence to support Judge Henrie’s decision to give Dr. Smith’s
2

While Judge Henrie did not discuss whether he was giving “controlling weight” to the
treating physicians’ opinions, his decision to give no weight to these opinions made his answer to
this question clear and obviated the need for him to discuss this first step of the analysis.
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opinion no weight. See Doyal v. Barnhart, 331 F.3d 758, 763 (10th Cir. 2003) (designation as a
“treating” physician “requires a relationship of both duration and frequency”).
Second, Judge Henrie held that the doctors both indicated that the “symptoms” were
progressive and reasoned that this statement implied that the complaints, but not the disease,
were progressive. While the Judge’s assertion is reasonable as it applies to Dr. Smith, the court
agrees with Ms. Baer that Judge Henrie’s argument should not apply to Dr. Jackson. Dr. Jackson
clearly stated that Ms. Baer’s conditions were “progressive and unlikely in [sic] improve to any
significant degree.” (R. at 251.) But the court finds that this mischaracterization is a minor error,
especially given Judge Henrie’s third stated reason why he discredited the assertion that Ms.
Baer’s condition was progressive. Judge Henrie observed that although both doctors indicated a
progression of either illness or symptoms, the doctors’ assessments showed “exactly the same
level of function a year apart, which contradicts their statements about progression.” (R. at 25.)
The court agrees that, if Dr. Smith did not simply copy his form from Dr. Jackson, then Dr.
Smith’s findings belie any statements that Ms. Baer’s conditions were progressive.
Finally, Judge Henrie chose to reject the doctors’ assessments because he found nothing
in the medical record to support their opinions. While Ms. Baer argues that Judge Henrie failed
to recognize the x-ray of her knee, the 2/4 patellar tendon reflex, and the results of the
McMurray’s test, her argument is not persuasive. Judge Henrie discussed the x-ray at multiple
points in his opinion, and noted that the evidence showed only mild osteoarthritis. And as
mentioned above, Ms. Baer failed to provide any evidence about whether a 2/4 patellar tendon
reflex is an indication of normal or impaired functioning. During the visit when these tests were
administered, Dr. Jackson himself did not make any remarks about either her patellar tendon
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reflex or McMurray’s sign. (See R. at 271.) Instead, he simply diagnosed osteoarthritis in the
knee. (Id.) Since Judge Henrie clearly stated that Ms. Baer had mild osteoarthritis of the knee,
there was no need for him to evaluate the equivocal evidence provided by Ms. Baer’s reflex and
McMurray’s tests. Judge Henrie also discussed the lack of objective medical evidence in other
sections of his opinion. For instance, he questioned the extent of Ms. Baer’s peripheral
neuropathy because he did not see any objective tests or examination findings that supported this
diagnosis. (See R. at 24.) For these reasons, the court finds that Judge Henrie reasonably
determined that the medical record on the whole did not support the restrictive limitations
indicated by Dr. Jackson and Dr. Smith in their functional assessments.
Given all of the reasons that Judge Henrie provided for his decision to discredit the
functional assessments of Ms. Baer’s treating physicians, especially his first and fourth reasons,
the court finds that Judge Henrie’s decision was supported by substantial evidence in the record.
The inconsistencies and lack of medical evidence, as well as the contrary medical evaluations
from state agency physicians, gave Judge Henrie a reasonable basis to reject the “marked
restrictions” found by Dr. Jackson and Dr. Smith. See Eggleston v. Bowen, 851 F.2d 1244, 1247
(10th Cir. 1988) (an ALJ may consider other medical opinion evidence in rejecting the opinion of
a treating physician); Raymond v. Astrue, 621 F.3d 1269, 1272 (10th Cir. 2009) (an ALJ
reasonably discounted a treating physician’s opinion which was inconsistent with other medical
evidence). In any event, Judge Henrie did not entirely disregard the opinions of these treating
physicians. Judge Henrie clearly considered and relied on other reports by the physicians,
including their treatment notes and diagnoses. And Judge Henrie’s findings about Ms. Baer’s
residual functional capacity are consistent with the majority of limitations listed by the physicians
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in the functional assessments, including Dr. Jackson’s statement that Ms. Baer’s pain was
“moderate.” Judge Henrie simply determined the more severe limitations indicated by the
treating physicians, such as Dr. Smith’s statement that Ms. Baer could only work for two hours a
day, were not supported by the record.
B. Ms. Baer’s Testimony
Ms. Baer also contends that Judge Henrie did not adequately take into account her
subjective testimony. Credibility determinations are the province of the ALJ and should not be
disturbed if supported by substantial evidence. McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th
Cir. 2002). Nevertheless, the ALJ’s findings “should be closely and affirmatively linked to
substantial evidence and not just a conclusion in the guise of findings.” Id. (citation omitted). In
addition, the ALJ must give specific reasons for rejecting a claimant’s subjective allegations of
pain. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).
Judge Henrie did consider Ms. Baer’s statements when determining that she had reduced
functioning, but stated that “the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.” (R. at 28.) He based his decision on the lack of
medical evidence demonstrating any condition other than mild osteoarthritis, as well as the
contrary opinions of the agency medical experts. He also noted several inconsistencies in the
reports of the treating physicians, including statements about hypertension and hypothyroidism
that appeared to be copied from earlier reports to later reports with no indication of the current
status of those conditions. (R. at 29.)
Ms. Baer argues that Judge Henrie failed to comply with the requirements of a social
15

security ruling, which advises that “[a]n individual’s statements about the intensity and
persistence of pain or other symptoms or about the effect the symptoms have on his or her ability
to work may not be disregarded solely because they are not substantiated by objective medical
evidence.” SSR 96-7p, 1996 WL 374186, at *4. But Judge Henrie found that Ms. Baer lacked
credibility not only due to the lack of objective medical evidence, but also because a number of
agency medical experts opined that Ms. Baer did not have the functional limitations she
described. Even Dr. Jackson and Dr. Smith believed that Ms. Baer’s pain was “moderate,”
whereas Ms. Baer testified that her pain was between an 8.5 and a 9 on a ten point scale during
the hearing with Judge Henrie. And even though Judge Henrie found “no significant evidence of
any disabling physical or mental condition,” he still included a number of fairly serious
limitations in his assessment of Ms. Baer’s residual functional capacity. (R. at 30.) Given Judge
Henrie’s thorough review of the medical record and the adverse opinions of the state agency
physicians, the court finds that Judge Henrie supplied specific reasons to discredit the extent of
pain and limitations that Ms. Baer alleged and that his decision is supported by substantial
evidence in the record.
Ms. Baer also contends that Judge Henrie failed to acknowledge that her limited financial
resources prevented her from getting more testing to document her conditions. For instance, Dr.
Jackson mentioned during one visit that he was concerned about heart failure but did not order
any tests because Ms. Baer could not afford an echocardiogram. (R. at 199.) But there is no
other evidence that heart failure was a cause of Ms. Baer’s pain and limitations. And there is no
indication that Ms. Baer was unable to pay for the medication that was prescribed for her various
conditions, or that such inability to follow through with the recommended treatment was the
16

reason why Ms. Baer could not work. A careful review of the record shows that it was not a lack
of medical evidence that drove Judge Henrie’s decision, but a lack of objective findings in the
ample medical evidence provided by her doctors when Ms. Baer did seek and obtain treatment.
As a result, the court finds that Judge Henrie’s ruling cannot be impugned for a failure to
consider Ms. Baer’s financial resources.
CONCLUSION
For the reasons stated above, the court finds that Judge Henrie’s decision is supported by
substantial evidence. His ruling is therefore AFFIRMED.
DATED this 9th day of July, 2013.
BY THE COURT:

______________________________
ROBERT J. SHELBY
United States District Judge

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