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Walker v. Commissioner, Social Security Administration

United States District Court, D. Colorado

November 15, 2019



          Nina Y. Wang United States Magistrate Judge.

         This 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 decision.


         An 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).

         The 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 include:

1. Whether the claimant has engaged in substantial gainful activity;
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).

         In 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.


         I. Background

         A. Medical History

         Ms. Walker, born April 16, 1967, alleges she became disabled November 12, 2015, at 48 years-of-age, due to degenerative disc disease[1] and “fusion in back with extreme pain everyday [sic].” See [#12-6 at 285, 299].[2] 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].

         Ms. 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 420].

         On July 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].

         Ms. 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 response.” [Id.].

         Ms. 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].

         Ms. 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].

         Also in 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].

         During 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].

         In 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 592].

         On 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].

         On 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].

         Ms. 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].

         B. Procedural History

         On June 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].

         Ms. 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.

         Ms. 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].

         As to 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 ...

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