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Perez v. Commissioner, Social Security Administration

United States District Court, D. Colorado

December 12, 2019




         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 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.


         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).


         I. Background

         A. Medical History

         Ms. 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].[1] 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.].

         On 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.].

         On 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.].

         On 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].

         In 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].

         On 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 ...

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