United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge.
civil action arises under Title II of the Social Security Act
(“Act”), 42 U.S.C. §§ 401-33, for
review of the Commissioner of the Social Security
Administration's (“Commissioner” or
“Defendant”) final decision denying Plaintiff Amy
Walker's (“Plaintiff” or “Ms.
Walker”) application for Disability Insurance Benefits
(“DIB”). Pursuant to the Parties' consent
[#13], this civil action was referred to this Magistrate
Judge for a decision on the merits. See [#19]; 28
U.S.C. § 636(c); Fed.R.Civ.P. 73; D.C.COLO.LCivR 72.2.
Upon review of the Parties' briefing, the entire case
file, the Administrative Record, and the applicable case law,
this court AFFIRMS the Commissioner's
individual is eligible for DIB benefits under the Act if he
is insured, has not attained retirement age, has filed an
application for DIB, and is under a disability as defined in
the Act. 42 U.S.C. § 423(a)(1). An individual is
determined to be under a disability only if her
“physical or mental impairment or impairments are of
such severity that [s]he 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). The disabling
impairment must last, or be expected to last, for at least 12
consecutive months. See Barnhart v. Walton, 535 U.S.
212, 214-15 (2002). Additionally, the claimant must prove she
was disabled prior to her date last insured. Flaherty v.
Astrue, 515 F.3d 1067, 1069 (10th Cir. 2007).
Commissioner has developed a five-step evaluation process for
determining whether a claimant is disabled under the Act. 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). These
1. Whether the claimant has engaged in substantial gainful
2. Whether the claimant has a medically severe impairment or
combination of impairments;
3. Whether the claimant has an impairment that meets or
medically equals any listing found at Title 20, Chapter III,
Part 404, Subpart P, Appendix 1;
4. Whether the claimant has the Residual Functional Capacity
(“RFC”) to perform her past relevant work; and
5. Whether the claimant can perform work that exists in the
national economy, considering the claimant's RFC, age,
education, and work experience.
See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v),
416.920(a)(4)(i)-(v). See also Williams v. Bowen,
844 F.2d 748, 750-52 (10th Cir. 1988) (describing the five
steps in detail). “The claimant bears the burden of
proof through step four of the analysis[, ]” while the
Commissioner bears the burden of proof at step five.
Neilson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir.
1993). “If a determination can be made at any of the
steps that a claimant is or is not disabled, evaluation under
a subsequent step is not necessary.” Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (internal
quotation marks omitted).
reviewing the Commissioner's final decision, the court
limits its inquiry to whether substantial evidence supports
the final decision and whether the Commissioner applied the
correct legal standards. See Vallejo v. Berryhill,
849 F.3d 951, 954 (10th Cir. 2017). “Substantial
evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Flaherty, 515 F.3d at
1070 (internal citation omitted); accord Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992)
(“Evidence is not substantial if it is overwhelmed by
other evidence in the record or constitutes mere
conclusion.”). “But in making this determination,
[the court] cannot reweigh the evidence or substitute [its]
judgment for the administrative law judge's.”
Smith v. Colvin, 821 F.3d 1264, 1266 (10th Cir.
2016). However, the court must “meticulously examine
the record as a whole, including anything that may undercut
or detract from the ALJ's findings in order to determine
if the substantiality test has been met.”
Flaherty, 515 F.3d at 1070.
Walker, born April 16, 1967, alleges she became disabled
November 12, 2015, at 48 years-of-age, due to degenerative
disc disease and “fusion in back with extreme
pain everyday [sic].” See [#12-6 at 285,
299]. In 2011, Ms. Walker underwent a L5-S1
microdiscectomy to “treat primarily right lower
extremity symptoms including weakness and pain.” [#12-7
at 406]. In 2013, Ms. Walker's physician Sanjay Jatana,
M.D. noted Ms. Walker had “a significant amount of back
pain and was somewhat frustrated that her [L5-S1
microdiscectomy] did not fix the back pain.”
[Id.]. X-rays showed Ms. Walker suffered from
“degenerative disc disease at L5-S1 and L1-L2.”
See [id. at 407]. Noting Ms. Walker had
attempted a medial branch block and steroid injections, Dr.
Jatana explored other options, ultimately suggesting a second
surgery. See [id. at 400-02, 404, 407].
Walker underwent the recommended procedure, a fusion at
L5-S1, on November 19, 2013. [Id. at 412-13]. While
Ms. Walker's immediate post-op visits note her doing
well, e.g., [id. at 396, 398], she suffered
a slipping incident about three months after her surgery that
caused “worsening lower back pain, ” see
[id. at 394]. Six months after surgery, Dr. Jatana
noted “recurrent symptoms” and “minor
irritation” resulting from a straight leg test, that
Ms. Walker's pain remained a 5-8 out of 10, and that
x-rays showed the “fixation in place and alignment
acceptable.” [Id. at 392-93]. Given his
physical examination, Dr. Jatana ordered another MRI.
[Id. at 393]. The MRI showed adequate decompression
that “look[ed] appropriate in terms of assessing the
fusion mass” and considered other reasons for her
reported pain. [Id. at 390]. Notably, these MRI
“findings [were] slightly worse compared to the MRI
dated April 2, 2013, ” which occurred before Ms.
Walker's second surgery. See [id. at
7, 2014, Ms. Walker presented to her family physician Vernon
Rubick, D.O. See [#12-2 at 59; #12-8 at 503]. Dr.
Rubick's notes indicate Ms. Walker began experiencing
bi-lateral knee pain, which she attributed to her physical
therapy, and that she continued to report back pain, though
she did not report an inability to bear weight or a loss of
range of motion and sensation. [#12-8 at 503-04]. During an
August 2014 visit, Ms. Walker reported feeling depressed
because of her pain, requested an antidepressant, and later
reported the medication was helpful; a physical exam revealed
normal range of motion and no edema, and Dr. Rubick noted
there “are no obvious issues that [he] was able to find
on exam” as to Plaintiff's chronic left hip, knee,
and foot pain. [Id. at 506-08, 509].
Walker's medical records also detail three visits to
Kenneth P. Finn, M.D. at Springs Rehabilitation, P.C.
See [#12-7 at 384-87]. Visit notes from January 2,
2015 indicate Ms. Walker had “a medial branch block
done on the lower lumbar spine bilaterally. Unfortunately,
she did not have a significant response. Her pain decreased a
little bit, perhaps a couple levels from 7/10 down to
5/10.” [Id. at 387]. During her exam, Dr. Finn
noted “tenderness, ” “some pelvic rotation
as well and some up-slip of the SI joint of the left side,
” as well as “positive Patrick's
maneuver.” [Id.]. Dr. Finn's treatment
plan was a “sacroiliac injection, ” and he
stated, “I am not sure we have much else to offer
her.” [Id.]. During her next visit, Dr. Finn
noted injections did not create the desired result, stating
“[Ms. Walker] has been through a series of injections .
. . . We have not been able to change her low back
pain.” [Id. at 384]. Dr. Finn's notes
ended with, “[a]t this point, we really do not have
much else to offer her in terms of injections. I would have
her return to Dr. Jatana. She is getting some relief with
pain medications, but frustrated with the lack of
Walker visited Dr. Jatana again on June 15, 2015. [#12-7 at
388-390]. Dr. Jatana noted “worsening symptoms as far
as lower back pain and some referred symptoms when her back
pain increases down into the legs bilaterally.”
[Id. at 388]. Ms. Walker reported “pain with
any kind of increased activity level or sitting for extended
periods of time.” [Id.]. An x-ray showed
“good placement” of the hardware in her spine and
the “[a]djacent segment appears to be well
maintained.” [Id.]. The physical examination
noted “5/5 muscle strength” and nonpainful
rotation of the hips, no pain with extension maneuvers, no
tenderness over the bursa, but “[p]ain noted with
forward flexion.” [Id.]. Dr. Jatana then
ordered an updated MRI; compared to Ms. Walker's 2014 MRI
the findings were “normal, ” with “evidence
of postop changes status post anterior decompression and
fusion” and “no evidence of nerve root
impingement or cauda equina compression.” [Id.
at 389, 410]. Impressions included “minimal, if any,
degenerative changes of the L4-5 disc space.”
[Id. at 410-11].
Walker continued visits with Dr. Rubick in 2015 and 2016.
See generally [#12-7 at 424-58]. During a March 10,
2015 visit, Ms. Walker again reported back pain, and due to
her “long history” of the same. [#12-8 at 516].
Her physical exam showed normal range of motion for her
musculoskeletal system. [Id. at 518]. Through
continued visits, Ms. Walker's physical exams continued
to show no positive results for her musculoskeletal system,
including the lower back, with “normal range of
motion” and “no edema.” [Id. at
520, 525]. But during her annual wellness exam in October
2015, Ms. Walker was positive for back pain, as well as
“arthralgias (left knee/hip), ” and
“numbness (lower extremities/feet), ” while
negative for gait problems and other musculoskeletal and
neurological issues. See [id. at 526].
October 2015, Ms. Walker visited Demaceo L. Howard, M.D., a
pain management specialist, presenting with low back pain.
See [#12-7 at 451]. Her patient history labels her
pain “moderate-severe, ” that it “radiated
to the left calf, left foot and left thigh, ” and noted
the “problem is stable, ” though
“[e]pidurals and facet treatments not effective post
fusion.” [Id.]. Ms. Walker identified
extremity weakness and numbness, gait disturbance, back and
joint pain, and muscle weakness as her physical ailments, but
a physical exam showed her gait, straight leg test on right
and left, and muscle tone as normal, and all systems were
normal in her physical exam. [Id. at 451-52]. Ms.
Walker and Dr. Howard discussed new treatment options,
including neurostimulation therapy and Ms. Walker decided to
pursue the treatment. [Id. at 448, 450, 453]. Dr.
Howard also discontinued Ms. Walker's use of hydrocodone,
in lieu of oxycodone, reporting “[d]ecreased pain
control with current medications.” [Id. at
448, 450]. While waiting for authorization on the
neurostimulation trial, Dr. Howard noted increased use of her
pain medications was helpful. [Id. at 442].
a visit on April 21, 2016, Dr. Howard's records note
“the problem is worsening” as Ms. Walker
presented with back and leg pain, but her physical exam was
largely normal. [#12-7 at 432-33]. In May of 2016, Ms. Walker
“cancelled her scheduled Phase 1 neurostimulation
trial” due to cost and returned to oxycodone for pain
management. See [id. at 428, 430]. Later
treatment notes indicate Ms. Walker's “problem is
worsening, ” and an August 2016 visit showed
“tenderness” of her lumbar spine and
“moderate pain” resulting from motion of the
same, though these visits included normal physical exam
results. [Id. at 429; #12-8 at 462].
September 2016, Ms. Walker saw Dr. Howard for another
epidural steroid injection. See [#12-8 at 460]. Ms.
Walker returned in December 2016, and Dr. Howard's plan
was to “[c]ontinue medication management.” [#12-9
at 590]. Her history detailed her lower back pain as
“ache, burning, discomforting numbness and throbbing,
” which was “aggravated by ascending stairs,
daily activities, descending stairs, jumping, lifting,
standing and walking” and “relieved by lying
down, pain meds/drugs and rest.” [Id. at 591].
She reported her pain as a 9/10 and her physical exam
included “normal” findings for both her
musculoskeletal and neurological systems. [Id. at
October 3, 2016, Ms. Walker presented to Dr. Rubick and
requested he complete paperwork for her DIB application.
[#12-8 at 530-31]. Visit notes state Ms. Walker's pain as
a constant and “chronic problem” that
“started more than 1 year ago.” [Id.].
Dr. Rubick further noted “[t]he problem has been
gradually worsening since onset, ” that it is
“present in the lumbar spine, ” it
“radiates to the left thigh, ” and is
“severe.” [Id.]. He also noted this pain
is “aggravated by bending, sitting, standing and
twisting.” [Id.]. In terms of treatment, Dr.
Rubick stated “[Ms. Walker] has tried analgesics,
NSAIDs and muscle relaxant [sic], ” which has
“provided moderate relief.” [Id.]. The
physical exam showed a “decreased range of motion
(flexion, extension, side bending and rotation) and
tenderness” in Ms. Walker's back but “not
edema and no deformity.” [Id. at 531].
January 31, 2017, Ms. Walker returned to Dr. Howard, whose
treatment notes state Ms. Walker's pain “level is
6-8, ” that it is “stable, ”
“persistent[, ]” and in the lower back,
“radiat[ing] to the left calf and left thigh.”
[#12-9 at 596-97]. Ms. Walker described the pain as “an
ache, burning, discomforting, piercing and shooting”
that is “aggravated by daily activities, jumping,
lifting, sitting, standing and walking” and
“relieved by lying down and pain meds/drugs.”
[Id.]. Later visits include reports of back and knee
pain consistently, with hip pain fluctuating. See
[id. at 606, 610, 614, 618]. Throughout her visits
to Dr. Howard in 2017, Ms. Walker reported muscle weakness.
See [id. at 598, 602, 607, 611, 615, 619].
Walker again visited Dr. Rubick for a steroid injection for
her hip on July 19, 2017. [#12-8 at 557-58]. Physical
examination showed tenderness in her hips and decreased range
of motion in her back. [Id. at 559]. A summary of
care from October 16, 2017 also noted decreased range of
motion in her back and tenderness. [Id. at 565].
Diagnosis included “[d]egeneration of lumbar
intervertebral disc” and “[l]umbar
radiculopathy.” [Id. at 571].
8, 2016, Plaintiff filed her application for DIB. [#12-2 at
84]. The Social Security Administration denied
Plaintiff's application administratively on September 15,
2016. See [id.; #12-4 at 95]. Ms. Walker
requested a hearing before an Administrative Law Judge,
see [#12-4 at 103], which ALJ Bryan Henry
(“the ALJ”) held on January 31, 2018,
see [#12-2 at 30]. The ALJ received testimony from
the Plaintiff and Vocational Expert Dr. Dennis Duffin (the
“VE”) at the hearing. See generally
[id. at 40-82].
Walker testified to living with her husband, who is on
long-term disability, and two dogs, in a one-story home.
[#12-2 at 43-44]. She and her husband “tag-team the
chores, ” from dishes, to “easy meals, ”
and light cleaning. [Id. at 44-45]. While not
requiring help with dressing or bathing, Ms. Walker stated
her children help with “heavy stuff” when it
comes to chores. [Id. at 45]. Ms. Walker further
testified she has grandchildren who she visits with, but
cannot babysit, has a driver's license, and makes
shopping trips about two to three times a week with her
husband. [Id. at 46-47, 62]. When shopping, Ms.
Walker testified she can lift a gallon of milk.
Walker testified that she worked in sales for over a decade
before taking a data entry job, which required her to sit 95
percent of the day at a computer. [#12-2 at 48-52]. She
stated she left the job because she was “coming home,
just in tears, from being in so much pain” in her knees
and back, and that she had numbness in her leg, right calf,
and toes, which moved to her left side after her fusion
surgery. [Id. at 50, 52-53]. Ms. Walker stated,
“I got a sense of pride” from working,
“[b]ut I simply can't do it anymore.”
[Id. at 81-82].
her physical limitations, Ms. Walker testified she usually
can carry objects under ten pounds “for a short
distance, ” can lift items off a table, but it is hard
to lift items off the floor. [#12-2 at 63]. She stated
stooping is tough and if she bends her knees, she
“can't hardly get up.” [Id.]. She
detailed her need to lay down twice a day and to stretch for
“[u]sually about half-an-hour to an hour, each
time” to “alleviate some pain.”
[Id. at 64-65, 67]. She testified she can walk a
couple blocks at a time, but then requires rest.
[Id.]. When ...