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 Social Security
Administration's (“Commissioner” or
“Defendant”) final decision denying Plaintiff
Julie Anna Clendennen's (“Plaintiff” or
“Ms. Clendennen”) application for Disability
Insurance Benefits (“DIB”) and supplemental
social security income (“SSI”). Pursuant to the
Parties' consent [#13], this civil action was referred to
this Magistrate Judge for a decision on the merits.
See [#21]; 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
REVERSES the Commissioner's decision and
REMANDS for further proceedings.
Julie Clendennen, born January 11, 1985, applied for social
security benefits on August 22, 2014 for disabilities first
arising in August 2010. [#16 at 2; #11-3 at 2, 3]. Ms.
Clendennen alleged that she suffered from (1) epilepsy, (2)
Thoracic Outlet Syndrome; (3) “Tumor in T5 not fully
diagnosed yet”; (4) Ovarian Cysts; (5) Lymphoma, and;
(6) attention deficit hyperactivity disorder
(“ADHD”). [Id.]. A hearing was held
before an Administrative Law Judge (“ALJ”) on
November 28, 2016 where Ms. Clendennen was represented by
counsel and a Vocational Expert, Mr. Robert Schmidt,
testified. [#11-2 at 33]. At the hearing, testimony and
documentary evidence was presented regarding Ms.
Clendennan's condition, including as relevant here, her
testified to longstanding “ovarian issues” that
leave her with bleeding and “out of control” pain
levels “either in bed or the hospital.” [#11-2 at
42]. One incident two months prior to the hearing left
Plaintiff hospitalized and “down” for
“about four days” with “hemorrhagic”
bleeding. [Id. at 42, 43]. Plaintiff further
testified that she has “frequent” issues with
debilitating cramping and bleeding when she overexerts
herself and has these cyst related-issues approximately every
three months. [Id. at 45]. Mr. Schmidt testified
that none of the hypothetical jobs he found a person
similarly disabled could do would be available if “this
Claimant would in the course of a month be absent in excess
of two times.” [Id. at 52].
written record contains further evidence regarding
Plaintiff's cysts. For example, Plaintiff submitted
medical records regarding her cysts. [#11-14 at 2]. The
records include notes from a February 27, 2016 visit to
Platte Valley Medical Center Emergency Room where Ms.
Clendennen complained of abdominal pain from her cysts.
[Id. at 9]. The notes indicate that a doctor told
Plaintiff to go to the ER to have her cyst-related pain
managed until she could see a specialist. [Id.].
Notes from the following day indicate that her pain was rated
at an eight on a one-to-ten scale, sharp, and chronic with
gradual onset. [Id. at 11]. The notes further
indicate that Plaintiff reports this pain occurs every month.
[Id.]. A prior record from 2015 indicates her
admittance with frequent vaginal bleeding from the cysts and
a pain level of seven. [Id. at 23, 27].
issued a written order (“the Order”) denying
Plaintiff's request for benefits, finding she was not
disabled. Despite the testimony at the hearing and records
indicating debilitating pain and bleeding, the Order
contained no mention of Plaintiff's ovarian cysts apart
from noting the receipt of supplemental medical records,
including those referenced above. [#11-2 at 13, 16].
Plaintiff appealed, but the Appeals Council denied review.
[Id. at 2]. Plaintiff then sought further review in
this court. [#1].
reviewing the Commissioner's final decision, the court is
limited to determining whether the decision adheres to
applicable legal standards and is supported by substantial
evidence in the record as a whole. Berna v. Chater,
101 F.3d 631, 632 (10th Cir. 1996) (citation omitted);
cf. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th
Cir. 1993) (“[I]f the ALJ failed to apply the correct
legal test, there is a ground for reversal apart from a lack
of substantial evidence.” (internal citation omitted)).
The court may not reverse an ALJ simply because she may have
reached a different result based on the record; the question
instead is whether there is substantial evidence showing that
the ALJ was justified in her decision. See Ellison v.
Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).
“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 v.
Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal
citation omitted). But “[e]vidence 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) (internal
citation omitted). The court may not “reweigh the
evidence or retry the case, ” but 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
(internal citation omitted).
fundamental issue in this case is not contested: the Order
denying Plaintiff's request for benefits did not mention
her ovarian cysts despite extensive medical records and
testimony which indicated a serious and persistent disorder
that would reasonably be expected to impact her ability to
perform substantial gainful activity. Compare [#16
at 6 (“The ALJ's opinion makes no mention of Ms.
Clendennen's ongoing ovarian issues”)],
with [#17 at 11 (“The Court should affirm the
ALJ's decision, despite the fact that it does not discuss
Plaintiff's ovarian cysts.”)]. The
Commissioner's response to this deficiency is three-fold:
(1) the Order is supported by the existing evidence in the
record and should be affirmed on that basis; (2) Plaintiff
has a history of drug-seeking behavior, and; (3) the ALJ
discounted Plaintiff's subjective complaints, and her
ovarian cysts are primarily reflective of these sorts of
subjective complaints. See [#17].
the court is not persuaded that the presence of other
supporting evidence in the Order is determinative in this
case. The court will uphold an ALJ's determination if it
is supported by substantial evidence, but the ALJ “must
consider all relevant medical evidence in making those
findings. . . . in addition to discussing the evidence
supporting his decision, the ALJ must discuss the
uncontroverted evidence he chooses not to rely upon, as well
as significantly probative evidence he rejects.”
Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir.
2005) (quotation marks omitted, citing and quoting Baker
v. Bowen, 886 F.2d 289, 291 (10th Cir. 1989) and
Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir.
1996)); Zambrano v. Berryhill, No.
1:17-CV-00672-KRS, 2018 WL 4350252, at *5 (D.N.M. Sept. 12,
2018) (“[I]t is incumbent upon the ALJ to fairly
consider all of the relevant evidence in the record, and to
discuss the uncontroverted evidence she chooses not to rely
on as well as significantly probative evidence she rejects.
The ALJ may not simply ignore relevant evidence that suggests
an opposite conclusion.”).
there is no dispute that the ALJ had before him significant
documentary and testimonial evidence regarding
Plaintiff's ovarian cysts. There is also no dispute that
the Order contains no discussion of such cysts or their
effect on Plaintiff, despite the evidence submitted to the
ALJ and the despite the lack of any evidence rebutting the
presence or severity of the cysts. Accordingly, the court
cannot conclude that the ALJ's decision is supported by
substantial evidence as the ALJ appears to have not
considered (or at least has not discussed) significant and
undisputed evidence regarding Plaintiff's ovarian cysts.
See Zambrano, 2018 WL 4350252, at *5 (reversing
ALJ's decision for failing to consider probative evidence
bearing on claimant's disability); German v.
Colvin, No. 13-CV-00551-PAB, 2015 WL 1476735, at *5 n.5
(D. Colo. Mar. 27, 2015) (“The ALJ's failure to
mention plaintiff's spouse's testimony in prior
hearings suggests that he did not consider this evidence,
which is inconsistent with the mandate that the ALJ consider
all evidence presented.”); Wright v. Colvin,
No. 12-CV-01454-KMT, 2015 WL 1344456, at *5 (D. Colo. Mar.
20, 2015) (finding error when ALJ failed to address evidence
offered in the record). Accordingly, the court finds the
presence of other evidence in the ALJ's Order to be
immaterial to the present question.
the court finds the evidence of Plaintiff's drug use to
be inapposite at this juncture. The Commissioner argues
extensively that Plaintiff has a documented history of
drug-seeking behavior. [#17 at 4-6, 9-11]. The Commissioner
appears to be citing this behavior to discount the severe
pain alleged to be associated with Plaintiff's cysts.
[Id. at 5 (noting 2015 cyst episode and drug-seeking
behavior)]. But the Commissioner cannot cure the ALJ's
lack of consideration of the ovarian cysts, whether or not
ultimately upon consideration the ALJ determines that the
pain associated with them is subjective and inaccurate; the
court may not determine in the first instance that the
cysts-which indisputably exist-do not cause the debilitating
pain Plaintiff alleges and as documented in the hospital
record. Grogan, 399 F.3d at 1262 (stating that
courts do not reweigh the evidence or try issues de novo ...