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
Merced Ojeda Perez's (“Plaintiff” or
“Ms. Ojeda Perez”) application for Disability
Insurance Benefits (“DIB”). Pursuant to the
Parties' consent [#18], this civil action was referred to
this Magistrate Judge for a decision on the merits.
See [#29]; 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 respectfully
AFFIRMS the Commissioner's decision.
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.
Ojeda Perez, born September 26, 1957, alleges she became
disabled May 1, 2015, at 57 years-of-age, due to a bulging
disc in her back. See [#16-6 at 189,
192]. On May 19, 2014, Ms. Ojeda Perez visited
the Salud Family Health Centers because of a cold. [#16-7 at
275]. Her physical exam noted that she was “alert and
oriented x3, in no acute distress, well developed and well
nourished” and had a regular heartbeat. [Id.].
August 20, 2014, Ms. Ojeda Perez began treatment with
Katherine Rufner, M.D.; the treatment relationship lasted
until October 2015. See [#16-7 at 301, 352]. Ms.
Ojeda Perez's initial complaint was “waist
pain” with general complaints of “back
pain” that was worse on the left and “some
sensation that her left leg falls asleep.”
[Id. at 301]. General exam results showed a
“well developed and well nourished appearance, ”
a regular heart rate and rhythm with no murmur, no acute
distress, and “negative straight leg raise
bilaterally.” [Id.]. Dr. Rufner began
Plaintiff on a daily ibuprofen regiment. [Id.].
November 4, 2014, Ms. Ojeda Perez treated with Dr. Rufner for
a consultation on headaches. [#16-7 at 299]. Ms. Ojeda Perez
presented alert and oriented, in no acute distress, with a
“well developed” general appearance, and regular
heart rhythm, and displayed normal strength in all
extremities with no edema. [Id.]. A month later, on
December 6, 2014, Ms. Ojeda Perez returned with complaints of
nausea and vomiting. [Id. at 273]. Her treatment
notes indicate she was “alert and oriented, ”
“in no acute distress, well developed, and nourished,
” and her general exam revealed a regular heart rate
and rhythm and no edema in her extremities. [Id.].
February 4, 2015, Ms. Ojeda Perez presented to Dr. Rufner
with complaints of worsening back pain that radiated into her
right leg. [#16-7 at 292]. General exam results revealed that
Ms. Ojeda Perez was “alert and oriented x3, [in no
acute distress], well developed and well nourished, ”
had a regular heart rate and rhythm, and a positive right
straight leg test. [Id.]. Dr. Rufner referred Ms.
Ojeda Perez to physical therapy and ordered an MRI without
contrast, which revealed “diffuse bulging of the
intervertebral disc and moderate facet arthropathy” and
“mild to moderate foraminal stenosis at the L4-5 and
L5-S1 levels” but otherwise relatively mild findings at
other levels. [Id. at 292, 307].
March 2015, Plaintiff presented to orthopedic surgeon Scott
Dhupar, M.D. and complained of back pain and some tingling
and weakness. See [#16-7 at 349]. Dr. Dhupar
observed that Plaintiff had normal toe- and heel-walk and a
tandem gait; a negative straight leg raise test; slightly
reduced strength; and some tenderness to palpation.
[Id. at 350]. Dr. Dhupar suggested Plaintiff try
non-operative options, including medication, physical
therapy, traction, activity modification, rest, brace
therapy, chiropractic treatment, acupuncture, and local
heat/cold/massage, and if those were not effective, she could
consider surgery. See [id. at 351].
April 2, 2015, Ms. Ojeda Perez visited Dr. Rufner and
complained of being unable to sleep due to her back and leg
pain as well as feeling dizzy. See [#16-7 at 290].
General exam results revealed that Ms. Ojeda Perez was
“alert and oriented x3, [in no acute distress], well
developed and well nourished”; that her heart rate was
“regular” and “normal”; and that her
neurological results were “grossly normal, . . . motor
strength 5/5 all extremities, normal sensation to light
touch, DTR's normal and symmetric, normal coordination,
normal speech.” [Id.]. Ms. Ojeda Perez stated
that a neurosurgeon recommended she have back surgery;
however, Ms. Ojeda Perez did not want to undertake surgery
due to a history of heart ...