Spry v. Commissioner, Social Security Administration

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 24-cv-02233-LTB
B.F.S.,
Plaintiff,
v.
FRANK J. BISIGNANO, Commissioner of the Social Security Administration1,
Defendant.
____________________________________________________________________________
ORDER
__________________________________________________________________________ _
Plaintiff, B.F.S., appeals from the final decision of the Commissioner of the
Social Security Administration (“SSA”) denying her application for disability
insurance benefits (“DIB”), filed pursuant to Title II of the Social Security Act, 42
U.S.C. § 401,
et. seq. Jurisdiction is proper under 42 U.S.C. § 405(g). Oral argument
would not materially assist me in the determination of this appeal. After
consideration of the parties’ briefs, as well as the administrative record, I
REVERSE and REMAND the SSA Commissioner’s final decision for further
consideration as follows.
I. STATEMENT OF THE CASE
Plaintiff filed her DIB application on August 26, 2021, alleging disability as
1 Frank Bisignano became the Commissioner of Social Security on May 6, 2025. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Frank Bisignano should be substituted as the
defendant in this suit. No further action need be taken to continue this suit by reason of the last
sentence of section 405(g) of the Social Security Act, 42 U.S.C. § 405(g).
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of February 25, 2021. ECF No. 12-5 at 191-94.2 After an evidentiary hearing on
June 22, 2023, ECF No. 12-2 at 51-95, an Administrative Law Judge (“ALJ”) denied
Plaintiff’s DIB application via an order dated November 1, 2023. ECF No. 12-2 at
28-45. The Appeals Council subsequently denied review, and this order became the
SSA Commissioner’s final decision. ECF No. 12-2 at 1-7. Plaintiff thereafter timely
filed her complaint with this Court seeking judicial review of the Commissioner’s
final decision. ECF No. 1.
II. ALJ’s DECISION
When making her decision, the ALJ applied the five-step sequential process
outlined in 20 C.F.R. § 404.1520(a). ECF No. 12-2 at 29-45. In so doing, the ALJ
determined that Plaintiff retained the residual functional capacity (“RFC”) to
perform the full range of light work, as defined in 20 C.F.R. § 404.1567(b), except
that she could frequently perform postural limitations, handle, and finger
bilaterally, and she could tolerate frequent exposure to extreme cold and work
involving excessive vibration. ECF No. 12-2 at 34. Based on Plaintiff’s assessed
RFC, the ALJ found she was capable of performing her past relevant work (as a
receptionist and as a front office manager) as such jobs did not require the
performance of work-related activities precluded by her RFC pursuant to 20 C.F.R.
§ 404.1565. ECF No. 12-2 at 44. As a result, the ALJ concluded that Plaintiff was
not disabled, as defined by the Social Security Act, at step four of the sequential
2 The Administrative Record in this case is filed at Docket No. 12 of the Case Management/
Electronic Case Files (“ECF”) system. When citing to the administrative record I refer to the page
number found in the bottom right-hand corner of the page. For all other pleadings, I cite to the
document and page number generated by the ECF system.
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process. ECF No. 12-2 at 44-45.
III. STANDARD OF REVIEW
When deciding Social Security appeals, this Court reviews the ALJ’s decision
to determine whether the factual findings were supported by substantial evidence
in the record as a whole, and whether the correct legal standards were applied.
Levan v. Berryhill, No. 18-CV-02340-NRN, 2019 WL 2336852 (D. Colo. 2019)
(unpublished) (citing
Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007)).;
see
also Williamson v. Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. It requires more than a scintilla, but
less than a preponderance.”
Kidd v. Comm’r, SSA, No. 21-1363, 2022 WL 3041097
at *2 (10th Cir. Aug. 2, 2022) (unpublished) (quoting
Lax v. Astrue, 489 F.3d 1080,
1084 (10th Cir. 2007)). “[T]he threshold for such evidentiary sufficiency is not high.”
Biestek v. Berryhill, 587 U.S. 97, 103 (2019). And “[t]he possibility of drawing two
inconsistent conclusions from the evidence does not prevent [the] findings from
being supported by substantial evidence.”
Lax v. Astrue, supra, 489 F.3d at 1084
(citing
Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)). “Evidence is not
substantial if it is overwhelmed by other evidence in the record or constitutes mere
conclusion.”
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992).
In addition, “[t]he failure to apply proper legal standards may, under the
appropriate circumstances, be sufficient grounds for reversal independent of the
substantial evidence analysis.”
Kidd v. Comm’r, supra, 2022 WL 3041097, at *2
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(quoting
Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014)). Therefore, “if the
ALJ failed to apply the correct legal test, there is a ground for reversal apart from
substantial evidence.”
Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
In summary, reviewing courts “consider whether the ALJ followed the
specific rules of law that must be followed in weighing particular types of evidence
in disability cases, but we will not reweigh the evidence or substitute our judgment
for the Commissioner’s.”
Lax v. Astrue, supra, 489 F.3d at 1084.
IV. ANALYSIS
Plaintiff raises four claims of error on appeal. She first contends that the ALJ
erred in assessing her RFC when she failed to include a limitation addressing
Plaintiff’s need for bathroom breaks necessitated by her Crohn’s disease symptoms.
Plaintiff also asserts that the ALJ failed to consider her mental limitations when
assessing her RFC. Plaintiff next maintains that there was insufficient evidence to
support the ALJ’s evaluation of her subjective symptoms. Finally, Plaintiff asserts
error in the ALJ’s evaluation of the opinion evidence in the record. Because I find
that the ALJ erred when assessing Plaintiff’s gastrointestinal symptoms related to
her Crohn’s disease and in failing to include or reject an RFC accommodation for
bathroom access and/or breaks at work, I reverse the ALJ’s decision and remand for
further consideration. As such, I do not reach Plaintiff’s remaining claims of error.
A. The ALJ’s RFC Evaluation Regarding Bathroom Breaks
Plaintiff first asserts that the ALJ erred when evaluating the symptoms of
her longstanding Crohn’s disease and, as a result, in failing to include that she
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would need bathroom access and/or breaks when assessing her RFC. ECF No. 15 at
9-12. The Commissioner argues, in response, that the ALJ’s determination that
Plaintiff did not need greater workplace restrictions than those assessed by her
RFC was supported by substantial evidence. ECF No. 16 at 7-11.
An assessed RFC is a multidimensional description of the work-related
abilities a claimant retains despite his or her impairments. 20 C.F.R. §
404.1545(a)(1). The RFC gauges “what the claimant is still functionally capable of
doing on a regular and continuing basis, despite his [or her] impairments.”
Williams
v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988). It “does not represent the least an
individual can do despite his or her limitations or restrictions, but the most.” SSR
96-8p, 1996 WL 374184 (1996).
Here, the ALJ found that Plaintiff had the RFC to perform:
the full exertional range of light work, as defined in 20 C.F.R. §
404.1567(b), including the ability to lift and/or carry 20 pounds
occasionally and 10 pounds frequently, subject to the following
limitations: she can frequently stoop, kneel, crouch, crawl, and climb
ramps and stairs; and occasionally climb ladders, ropes, and scaffolds
and work at unprotected heights. She can frequently handle and finger
bilaterally. She can tolerate frequent exposure to work in extreme cold,
and to work involving excessive vibration. ECF No. 12-2 at 34.
As relevant here, the ALJ did not include an RFC requirement that Plaintiff would
need any work accommodations to address the urgency, frequency or duration of her
bathroom breaks as a result of her diarrhea due to her longstanding and active
Crohn’s disease. Plaintiff contends that this omission was error in that the medical
evidence reveals that she suffered from Crohn’s disease and experienced related
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gastrointestinal symptoms, including chronic diarrhea. As such, she argues that the
ALJ’s failure to include an RFC accommodation for additional or unscheduled
bathroom breaks constituted reversible error.
In her order, the ALJ first noted that:
[Plaintiff] has a history of Crohn’s disease and associated enteropathic
arthritis. Concerning [Plaintiff’s] Crohn’s disease and associated
enteropathic arthritis, [Plaintiff] reported symptoms including 15-20
bowel movements a day, cramping, stress fractures in feet, stiffness in
neck, anal bleeding, abdominal pain, gas, incontinence, joint pain and
numbness in hands. Despite these allegations, physical examination
findings showed [Plaintiff] exhibited no synovitis or dactylitis,
nontender abdomen, no extremity pain and no hepatosplenomegaly.
However, examining providers noted occasions where [Plaintiff]
exhibited diarrhea, pain throughout the spine with palpation over
sacroiliac joints, mildly tender abdomen, joint pain, abdominal pain,
multiple bowel movements a day, bloating and reduced motor strength
in hands. ECF No. 12-2 at 35 (citations to the record omitted).
When reviewing the medical records related to Plaintiff’s Crohn’s disease, the
ALJ primarily assessed the physical effects of Plaintiff’s enteropathic arthritis, and
found a lack of clinical findings to support her claims of “extreme limitations in her
exertional capacities and stamina.” ECF No. 12-2 at 37. As to Plaintiff’s
gastrointestinal symptoms, the ALJ found that:
From the overall record, [Plaintiff’s] Crohn’s has responded well to
treatment. [Plaintiff] underwent a bowel resection in 1994, 1999 and May
2022. She had CT scan on March 17, 2022, which noted severe
inflammatory process immediately proximal to the small bowel color
[sic?], anastomosis. She had a colonoscopy on April 1, 2022, which found a
stricture at the ileal surgical anastomosis, and a stricture in the distal
rectum. These were dilated, and localized severe inflammation was found
in the rectum secondary to Crohn’s disease. The examination was
otherwise normal. No specimens were collected.
Given those findings, [Plaintiff] saw Dr. Herman Peters on April 19, 2022,
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to discuss surgery. Again, the last surgery had occurred in 1999. He
recommended revision of the ileocolic anastomosis, with Dr. Peters noting
that given the lack of severity of disease on her recent colonoscopy, he
thought this was a reasonable option. Good findings were noted on exam
then. She returned to Dr. Peters for preop on May 17, 2022, with stable
findings on exam. She had the surgery two days later, on May 19, 2022. At
follow up on June 2, 2022, it was noted that, she did well postoperatively
without complication.
At that June 2, 2022 follow up visit, she did report having diarrhea still,
more nocturnal now since the surgery. On exam, she had good findings,
with inspection of the abdomen overall normal, as it was soft, with no
rebound tenderness, and no rigidity, and no hepatosplenomegaly. She had
tenderness at the epigastrium and in the right lower quadrant. Her bowel
sounds were normal, and her surgical site intact, with no palpable hernia.
A CT scan of [Plaintiff’s] abdomen on July 22, 2022, noted status post left
hemicolectomy without acute abnormalities. [Plaintiff] was prescribed
medication, including prednisone, Stelara, trazodone, Humira, Entyvio
and Pantoprazole, to treat her symptoms. [Plaintiff’s] Crohn’s disease is
well managed with Stelara. As probative, medical records state that
[Plaintiff’s] Crohn’s used to flare often but now [Plaintiff] only experiences
flares 1-2 times a month. The following year, she underwent an April 7,
2023, colonoscopy, the results of which revealed normal ileum, stricture in
the rectum and moderate inflammation from the anus to the rectum.
Overall, while she has the Crohn’s, it is longstanding, and overall stable.
While she had surgery for a stricture in May 2022, it met with good result.
While a year later, she has a stricture in rectum, she otherwise has stable
findings. It is just being monitored. ECF No. 12-2 at 38 (citations to the
record omitted).
The ALJ further noted that:
From the record, she reported dropping 50 pounds on her foot on
November 29, 2022. When asked the circumstances of this event at the
hearing, she testified that, she dropped her suitcase on her foot, when
trying to empty it after a trip. She, her mom, and her brother went on
a cruise for a week over the Thanksgiving holiday, traveling to the
eastern Caribbean. Her ability to engage in such travel, including
traveling to the airport, flying to Florida, where they departed on the
cruise and then returned, as well as being on the ship, eating cruise
food, with no noted issues is not supportive of her allegations. ECF No.
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12-2 at 38-39 (citations to the record omitted).
The ALJ then assessed Plaintiff’s RFC based on her “infrequent Crohn’s
flares and related arthritis symptoms,” and noted that her “Crohn’s disease is well
managed with Sterala.” ECF No. 12-2 at 39, 43. The ALJ did not include in
Plaintiff’s RFC any limitations or requirements for bathroom breaks or accessibility.
In summary, the ALJ indicated that:
In reaching these conclusions, the undersigned has considered all of
[Plaintiff’s] statements concerning her limitations, but cannot find her
complaints are well supported by the overall evidence of record.
[Plaintiff] has reported that, she has been unable to work full-time, yet
the objective evidence, clinical findings, good result with ileocolic
anastomosis revision, conservative, actual treatment, and fairly active
and social lifestyle prevent the imposition of more rigorous restrictions.
ECF No. 12-2 at 44.
Plaintiff argues that the ALJ erred in that the evidence of her diarrhea
related to her Crohn’s disease was sufficient for the inclusion of some requirement
for additional or unscheduled breaks and/or access to a bathroom in her RFC.
I first note that the ALJ did not specifically address the issue of Plaintiff’s
Crohn’s disease-related diarrhea, or her potential need for bathroom breaks while
at work. And there appears to be no direct evidence in the record of the Plaintiff’s
need for unscheduled or additional breaks or access to a bathroom when working
due to her diarrhea. However, Plaintiff testified that after years of treatment with
drugs and numerous surgeries, she still suffers from “Crohn’s flares.” ECF No. 12-2
at 61. And, in response to the ALJ’s question about how often she experienced a
Crohn’s “flare,” Plaintiff responded she always was having some Crohn’s activity or
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some type of flare, and episodes of “debilitating discomfort” once every 4 to 6 weeks,
lasting several days. ECF No. 12-2 at 82-84. In addition, the medical records are
clear that prior to her bowel resection surgery on May 19, 2022, Plaintiff suffered
from “out of control” chronic diarrhea and reported 10-15 persistent loose bowel
movements per day. ECF No. 12-7 at 387, 430, 476-79, 548, 553-555.
Although the medical records indicate she reported regular bowel movements
post-surgery, ECF No. 12-7 at 491, the records thereafter reveal that her
gastrointestinal symptoms persisted in that she reported, during an office visit on
July 6, 2022, that she was “having diarrhea still, more nocturnal now since surgery.
She has 3-4 episodes of liquid diarrhea usually every night. She had 2 episodes of
bloody stool one week ago,” and complained of abdominal pain, bloody stool, change
in bowel habits, chronic diarrhea, excessive gas, heartburn, hemorrhoids and
nausea. ECF No. 12-7 at 548-50. In addition, during an examination at her
gastroenterology clinic on February 1, 2023, it was noted that Plaintiff’s “diarrhea
seems to have always been out of control” and she reported that “[s]he has had some
increasing abdominal pain the last few weeks. Her diarrhea has never really went
[sic] away. It is somewhat more progressive recently after her last surgery.” ECF
No. 12-7 at 688-9. Her gastrointestinal symptoms were noted as abdominal pain,
bloody stool, chronic diarrhea, excessive gas, heartburn and nausea. ECF No. 12-7
at 689.
In addition, a Physical Medical Source Statement dated March 7, 2023,
completed by Plaintiff’s primary care provider, Jamie Vollmerhausen, PA-C., opined
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that Plaintiff would need unpredictable and unscheduled work breaks (outside of
normal breaks every two hours) for her symptoms which included “GI symptoms.”
ECF No. 12-7 at 731. While there are other opinions in the medical record
addressing Plaintiff’s physical workplace limitations, including two consultive
examinations, they do not address any potential workplace need for unpredictable
breaks and/or access to a bathroom due to her Crohn’s disease-related diarrhea.
ECF No. 12-3 at 105-109, 119-21 (noting that Plaintiff suffered from Crohn’s disease
complicated by diarrhea); ECF No. 12-7 at 380-85, 430-34, 654-59, 771 (in which
Plaintiff’s rheumatologist opined that Plaintiff would need unscheduled five-minute
breaks if she was suffering from a “flare” due to muscle weakness and pain).
I find that the medical evidence relied on by the ALJ was insufficient to
support her unprecise finding that “more rigorous RFC restrictions were not
required” in order to accommodate Plaintiff’s gastrointestinal symptoms from her
Crohn’s disease. As noted above, the objective medical evidence indicated that after
her May 2022 surgery she ultimately was still experiencing diarrhea and other
gastrointestinal symptoms. A CT scan ordered to address her abdominal pain two
month following her surgery reveal some normal findings but also indicated that
“[i]leocolic anastomosis is seen within the central abdomen” and “[f]at infiltration of
the colonic wall of the mid-distal sigmoid and rectum which has been described with
chronic inflammation but is often incidental.” ECF No. 12-7 at 545. To the extent
the ALJ relies on Plaintiff’s report that she “only experiences flares 1-2 times a
month” in June of 2022, ECF No. 12-7 at 38, the notation in her rheumatologist’s
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records appears to refer to her past history with uveitis, which is a form of eye
inflammation. ECF No. 12-7 at 501. An annual colonoscopy in April of 2023
revealed that her ileum and IC anastomosis looked disease free, “but the rectal
Crohn’s is moderately severe with recurrent stenosis” and Crohn’s disease and
“[i]nflammation was found from the anus to the rectum” that was “moderate in
severity.” ECF No. 12-7 at 774. And the only opinion evidence specifically
addressing the issue was from her treating provider who opined, ten months after
her surgery, that Plaintiff would need unpredictable and unscheduled work breaks
for her symptoms which included “GI symptoms.” ECF No. 12-7 at 731. Although
Plaintiff did not provide testimony as to her need for bathroom access and breaks
due to diarrhea, she testified that she was always having some Crohn’s activity or
some type of flare, and she experienced “debilitating discomfort” episodes once every
4 to 6 weeks, lasting several days. ECF No. 12-7 at 82-84.
The ALJ’s reliance on reports that her Crohn’s disease was overall “stable”
and “well-controlled with Stelara,” without further analysis or discussion, does not
specifically or directly address her gastrointestinal symptoms, and my review of the
references in the medical record does not disclose such connection. ECF No. 12-2 at
38, 39, 43. ECF No. 12-7 at 479, 484 (where the surgeon noted, prior to surgery in
May 2022, that Plaintiff had “difficulty managing her Crohn’s with medication,” but
she reported it was “currently fairly well controlled” with Stelara);
id. at 750 (in
which Plaintiff’s rheumatologist indicated, in September of 2022, that Plaintiff
reported at their initial visit that her GI symptoms were “stable”). I agree with
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Plaintiff that a record notation of stability in this context, and under the
circumstances here in which the notes did not provide any elaboration, does not
necessarily relate to a finding that her diarrhea was controlled or did not require
accommodation.
See generally Milatz v. Kijakazi, No. CIV-20-1219-STE, 2022 WL
675819, at *9 (W.D. Okla. Mar. 7, 2022) (unpublished) (remanding based, in part, on
the ALJ’s finding that the claimant’s Crohn’s disease “was noted to be without
complication and stable”). Likewise, the ALJ’s conclusion that her week-long cruise
with her mother and brother in November of 2022 – including traveling to the
airport, flying to Florida, where she departed on the cruise and then returned – “as
well as being on the ship, eating cruise food, with no noted issues,” ECF No. 12-2 at
39, does not necessarily support a determination that Plaintiff does not suffer from
Crohn’s disease-related diarrhea that would require RFC accommodations while at
work.
The Commissioner argues that although Plaintiff reported she was suffering
from diarrhea, “she did not consistently report any excessive urgency or frequency
that would justify any workplace restrictions.” ECF No. 16 at 9-10. But here the
ALJ did not address or discuss the issue when determining that Plaintiff “did not
need greater workplace restrictions” in formulating her RFC, and to the extent the
ALJ was addressing Plaintiff’s need for bathroom accommodations due to her
Crohn’s disease-related diarrhea, such finding was not supported by sufficient
evidence.
See C.P. v. OMalley, No. 23-CV-00278-NRN, 2024 WL 757087, at *5 (D.
Colo. Feb. 23, 2024) (unpublished) (reversing on the basis that substantial evidence
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in the medical record required additional RFC limitations to accommodate
Plaintiff’s bowel movements related to symptoms from her Crohn’s disease, and
ruling that “neither the ALJ nor the Commissioner explain[s] why normal
abdominal examinations, colonoscopies with mild to moderate findings, or a medical
finding of Crohn’s disease ‘without complication’ would undercut Plaintiff’s reported
symptoms regarding the urgency, frequency, and duration of her bowel movements
[as i]t is not obvious to the Court, nor is it explained in the record, why such medical
evidence is somehow inconsistent with Plaintiff’s reported bathroom usage.”);
see
also T.E.P. v. Comm’r, Soc. Sec. Admin., No. 1:23-CV-02184-DDD, 2024 WL
6991091, at *4 (D. Colo. Oct. 1, 2024) (unpublished) (affirming an RFC providing
that the claimant was only required to have “access to a restroom as needed” and
“would be off task less than 10 percent of the workday in addition to normal breaks”
when a repeat colonoscopy revealed improvement of the claimant’s Crohn’s disease,
his bowel movements decreased to two or three daily on medication, no active
disease was noted, and later records indicated that his “Crohn’s disease continued
to be well managed”);
but see T.H. v. Comm’r, Soc. Sec. Admin., No. 1:24-CV-00572-
RMR, 2025 WL 953665, at *7 (D. Colo. Mar. 17, 2025) (unpublished) (affirming the
ALJ’s finding that while the claimant’s RFC included that she needed “three
unexpected and additional restroom breaks, lasting for 15 minutes” after her
Chron’s disease became a severe impairment, such accommodation was not required
before then because the ALJ provided specific reasons for the rejection of Plaintiff’s
reported symptoms, and more than a mere scintilla of evidence supported the ALJ’s
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findings).
I conclude, based on the foregoing, that the ALJ failed to adequately address
or reject Plaintiff’s need for bathroom access and/or breaks while at work when
formulating her RFC. And to the extent the ALJ’s finding that she did not need
“greater workplace restrictions” meant that she did not need an accommodation for
additional breaks due to her Crohn’s disease-related diarrhea, such finding is not
supported by sufficient evidence. As such, I remand this case to the ALJ for further
findings including additional evidence if needed, and detailed conclusions
addressing this potential RFC accommodation.
B. Remaining Claims of Error
Because I am returning this case to the ALJ for further rulings, I do not
reach Plaintiff’s remaining claims on appeal. On remand I direct the ALJ to address
Plaintiff’s claims that 1) the ALJ failed to consider her mental limitations when
assessing her RFC; 2) that there was insufficient evidence to support the ALJ’s
evaluation of her subjective symptoms; and 3) evaluation of the opinion evidence in
the record was in error.
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ACCORDINGLY, for the foregoing reasons, I REVERSE and REMAND the
final decision of the SSA Commissioner denying Plaintiff’s application for disability
insurance benefits for further findings and conclusions.
Dated: February 26, 2026 in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE
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