Romero v. Colvin

Filing 26

ORDER re: 11 SOCIAL SECURITY ADMINISTRATIVE RECORD filed by Carolyn W. Colvin; It is ORDERED that the decision of the Commissioner that Plaintiff is not disabled is REVERSED and this matter is REMANDED for further proceedings consistent with th is opinion. IT IS FURTHER ORDERED that Plaintiff is AWARDED her costs, to be taxed by the Clerk of the Court pursuant to Fed. R. Civ. P. 54(d)(1), D.C.COLO.LCivR 54.1, and 28 U.S.C. § 2412(a)(1), by Magistrate Judge Kristen L. Mix on 9/25/15. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01181-KLM
DARLENE MAE ROMERO,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court1 on the Social Security Administrative Record
[#11],2 filed August 21, 2014, in support of Plaintiff’s Complaint [#1] seeking review of the
decision of Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security
Administration, (“Defendant” or “Commissioner”) denying Plaintiff’s claim for disability
insurance benefits pursuant to Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401
et seq., and for supplemental security income benefits pursuant to Title XVI of the Act, 42
U.S.C. § 1381 et seq. On September 30, 2014, Plaintiff filed an Opening Brief [#14] (the
“Brief”). Defendant filed a Response [#15] in opposition, and Plaintiff filed a Reply [#16].
The Court has jurisdiction to review the Commissioner’s final decision under 42 U.S.C. §§

1

The parties consented to proceed before the undersigned for all proceedings pursuant
to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2. See Order of Reference [#21].
2

“[#11]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

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405(g) and 1383(c). The Court has reviewed the entire case file and the applicable law and
is sufficiently advised in the premises. For the reasons set forth below, the decision of the
Commissioner is REVERSED and this case is REMANDED for further proceedings.
I. Factual and Procedural Background
Plaintiff alleges that she became disabled at the age of forty-three on February 9,
2009, due to a variety of impairments. Tr. 15, 25.3 On August 10, 2011, Plaintiff filed
applications for disability insurance benefits under Title II and for supplemental security
income under Title XVI. Tr. 14. On January 7, 2011, an Administrative Law Judge (the
“ALJ”) issued an unfavorable decision. Tr. 137-47. Plaintiff appealed the decision to the
Appeals Council, which remanded for further proceedings. Tr. 152-55. On December 17,
2012, the ALJ entered a second decision, finding that Plaintiff was “not disabled under
section 1614(a)(3)(A) of the Social Security Act.” Tr. 26.
The ALJ determined that Plaintiff met the insured status requirements of the Act
through September 30, 2012, and that Plaintiff had not engaged in substantial gainful
activity (“SGA”) since February 9, 2009 (the alleged onset date of her disability). Tr. 15.
The ALJ found that Plaintiff suffers from two severe impairments: (1) disorder of the back
and (2) left knee problems. Tr. 15. However, the ALJ also found that these impairments,
individually or in combination, do not meet or medically equal “the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” Tr. 21. The ALJ next concluded

3

The Court refers to the Transcript of the Administrative Proceedings, located at Docket
Nos. 11, 11-1, 11-2, 11-3, 11-4, 11-5, 11-6, 11-7, and 11-8, by the sequential transcript numbers
instead of the separate docket numbers.

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that Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work except
with occasional bending, squatting, kneeling and climbing and no use of foot or leg controls.
Tr. 22. Based on the RFC and the testimony of an impartial vocational expert (“VE”), the
ALJ found that Plaintiff was unable to perform any past relevant work but that “there are
jobs that exist in significant numbers in the national economy that [Plaintiff] can perform .
. . .” Tr. 24-25. Specifically, based on the testimony of the VE, the ALJ concluded that
Plaintiff could perform the representative occupations of hand packager, interviewer, and
telephone clerk. Tr. 25. He therefore found Plaintiff not disabled at step five of the
sequential evaluation. Tr. 26. The ALJ’s decision has become the final decision of the
Commissioner for purposes of judicial review. 20 C.F.R. §§ 404.981, 416.1481.
II. Standard of Review and Applicable Law
Pursuant to the Act:
[T]he Social Security Administration is authorized to pay disability insurance
benefits and Supplemental Security Income to persons who have a
“disability.” A person qualifies as disabled, and thereby eligible for such
benefits, “only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national economy.”
Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B)). Under the applicable legal standard, a claimant is disabled if he or she
is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . which has lasted or can be expected to last
for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(a); see also
Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (quoting 20 C.F.R. § 416.905(a)). The
existence of a qualifying disabling impairment must be demonstrated by “medically
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acceptable clinical and laboratory diagnostic” findings.

42 U.S.C. §§ 423(d)(3),

423(d)(5)(A).
“When a claimant has one or more severe impairments the Social Security [Act]
requires the [Commissioner] to consider the combined effects of the impairments in making
a disability determination.” Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987)
(citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of a severe impairment or
combination of impairments does not require a finding that an individual is disabled within
the meaning of the Act. To be disabling, the claimant’s condition must be so functionally
limiting as to preclude any substantial gainful activity for at least twelve consecutive
months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995).
The Court reviews a final decision by the Commissioner by examining the
administrative record and determining “whether the [ALJ’s] factual findings are supported
by substantial evidence in the record and whether the correct legal standards were
applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). However, the Court
“may neither reweigh the evidence nor substitute [its] judgment for that of the agency.”
Harper v. Colvin, 528 F. App’x 887, 890 (10th Cir. 2013) (quoting Barnett v. Apfel, 231 F.3d
687, 689 (10th Cir. 2000)). In other words, the Court does not reexamine the issues de
novo. Sisco v. U.S. Dep’t of Health & Human Servs., 10 F. 3d 739, 741 (10th Cir. 1993).
Thus, even when some evidence could support contrary findings, the Court “may not
displace the agency’s choice between two fairly conflicting views,” even if the Court may
have “made a different choice had the matter been before it de novo.” Oldham v. Astrue,
509 F.3d 1254, 1257-58 (10th Cir. 2007).
A.

Legal Standard
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The Social Security Administration uses a five-step framework to determine whether
a claimant meets the necessary conditions to receive Social Security benefits. See 20
C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof at steps one through
four, and if the claimant fails at any of these steps, consideration of any subsequent step
or steps is unnecessary. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (“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.”). The Commissioner bears the
burden of proof at step five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Step one requires the ALJ to determine whether a claimant is “presently engaged
in substantial gainful activity.” Wall, 561 F.3d at 1052 (quoting Allen v. Barnhart, 357 F.3d
1140, 1142 (10th Cir. 2004)). If not, the ALJ considers at step two whether a claimant has
“a medically severe impairment or impairments.” Id. “An impairment is severe under the
applicable regulations if it significantly limits a claimant’s physical or mental ability to
perform basic work activities.” Wall, 561 F.3d at 1052 (citing 20 C.F.R. § 404.1521). Next,
at step three, the ALJ considers whether a claimant’s medically severe impairments are
equivalent to a condition “listed in the appendix of the relevant disability regulation,” i.e., the
“Listings.” Wall, 561 F.3d at 1052 (quoting Allen, 357 F.3d at 1142). “If a claimant’s
impairments are not equivalent to a listed impairment, the ALJ must consider, at step four,
whether a claimant’s impairments prevent her from performing her past relevant work.”
Wall, 561 F.3d at 1052 (citing Allen, 357 F.3d at 1142). “Even if a claimant is so impaired,
the agency considers, at step five, whether she possesses the sufficient [RFC] to perform
other work in the national economy.” Id.
B.

Substantial Evidence
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An ALJ must consider all evidence and explain why he or she finds a claimant not
disabled. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). However, the ALJ need
not specifically “reference everything in the administrative record.” Wilson, 602 F.3d at
1148. “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. at 1140 (internal quotation marks omitted). “It
requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007). A decision by the ALJ is not based on substantial evidence
“if it is overwhelmed by other evidence in the record . . . .” Grogan v. Barnhart, 399 F.3d
1257, 1261-62 (10th Cir. 2005). In other words, the Court’s determination of whether the
ALJ has supported his or her ruling with substantial evidence “must be based upon the
record taken as a whole.” Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994).
Further, evidence is not substantial if it “constitutes mere conclusion.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). In addition, “if the ALJ failed to apply the
correct legal test, there is a ground for reversal apart from a lack of substantial evidence.”
Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
III. Analysis
Plaintiff requests judicial review of the ALJ’s decision denying her disability
insurance benefits and supplemental security income. Brief [#14] at 5. Specifically, Plaintiff
argues that: (1) the ALJ improperly assessed Plaintiff’s mental health impairment, (2) the
ALJ’s RFC finding does not account for both severe and nonsevere impairments, (3) the
ALJ improperly rejected the medical opinion of Carlos Rodriguez, Ph.D. (“Dr. Rodriguez”),
(4) the ALJ’s finding that Plaintiff can perform the job of hand packager is inconsistent with
the RFC, and (5) the ALJ did not properly follow the two-step process for assessing the
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credibility of Plaintiff’s testimony. Id. at 4. The Court begins with Plaintiff’s credibility
argument.
A.

The ALJ’s Evaluation of Plaintiff’s Credibility
“Credibility determinations are peculiarly the province of the finder of fact, and we

will not upset such determination when supported by substantial evidence.” Smith v.
Colvin, __ F. App’x __, __, 2015 WL 5315660, at *3 (10th Cir. Sept. 14, 2015) (quoting
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (internal quotation marks omitted)).
“But ‘findings as to credibility should be closely and affirmatively linked to substantial
evidence and not just a conclusion in the guise of findings.’” Id. “An ALJ must do more
than simply ‘recite[ ] the general factors he considered . . . [without] refer[ring] to any
specific evidence.’” Smith, 2015 WL 5315660, at *3 (quoting Qualls v. Apfel, 206 F.3d 1368,
1372 (10th Cir. 2000)). “Kepler does not, however, ‘require a formalistic factor-by-factor
recitation of the evidence. So long as the ALJ sets forth the specific evidence he relies on
in evaluating the claimant’s credibility, the dictates of Kepler are satisfied.’” Id.
Plaintiff’s argument here is a bit of a moving target. First, despite some statements
hinting to the contrary in the Motion [#14], she does not argue that the ALJ erred by finding
that some of Plaintiff’s testimony was not credible. See Reply [#16] at 23-24 (“Plaintiff’s
argument wasn’t that the ALJ didn’t have proper reasons for discounting portions of
plaintiff’s testimony.”). Rather, Plaintiff’s argument appears to be that the ALJ did not
specifically state which of Plaintiff’s statements were credible and how he incorporated her
credible statements into the RFC. See id. at 24. However, the specificity sought by
Plaintiff is not the standard. The ALJ is not required to discuss every piece of evidence he
considers. Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). The ALJ is only
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required to explain and support with substantial evidence which of a claimant’s testimony
he did not believe and why, see McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir.
2002), which, as Plaintiff concedes, he did.
In connection with this argument, Plaintiff attacks certain alleged boilerplate used
by the ALJ in connection with his credibility assessment of Plaintiff. Motion [#14] at 41-42;
Reply [#16] at 25. In Smith v. Colvin, 2015 WL 5315660, at *3, the claimant also attacked
as improper the alleged boilerplate statement that her “statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent they are
inconsistent with the [RFC] assessment,” a statement which is materially identical to the
one used by the ALJ here. Tr. 22. The Tenth Circuit Court of Appeals found no error in
using this language so long as the Kepler test was otherwise met. The dictates of Kepler
are met when the ALJ sets forth the specific evidence he relied on in evaluating the
claimant’s credibility. See Qualls, 206 F.3d at 1372. Here, the ALJ did just that:
The claimant’s credibility is questionable. She has stated that she did not
drink alcohol and has also stated that she occasionally drank, and stated that
she drank 30 alcoholic beverages per weekend. Her reports of back pain
have also varied considerably, as she has reported back pain beginning in
2009 and of having had back pain for 20 years. She had reported constant
[sic] and denied having any back pain. The claimant’s statements concerning
pain relief from epidural injections varies with telling. The records show the
claimant is independent in self-care and activities of daily living and is able
to drive independently. She testified that she lived with her daughters and
they did everything for her. Choosing not to do anything is not the same as
being unable to do anything. The claimant stated that she had constant
pinching nerve pain, however, the objective medical records are negative for
any evidence of any nerve involvement.
Tr. 22-23.
The Court finds that the ALJ’s analysis meets the Kepler test, and the ALJ therefore
did not commit reversible error on this point.
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C.

The ALJ’s Evaluation of Dr. Rodriguez’s Medical Opinion
Plaintiff argues that the ALJ improperly assigned “no weight” to the opinion of Dr.

Rodriguez, a licensed psychologist. Motion [#14] at 31-35.
An ALJ must give the opinion of a treating physician controlling weight only when it
is both: (1) “well-supported by medically acceptable clinical and laboratory diagnostic
techniques” and (2) “consistent with other substantial evidence in the record.” Watkins v.
Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). “[I]f the opinion is deficient in either of
these respects, then it is not entitled to controlling weight.”

Id.

Even if a treating

physician’s medical opinion is not entitled to controlling weight, however, “[t]reating source
medical opinions are still entitled to deference and must be weighed using all of the factors
provided in 20 C.F.R. § 404.1527.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir.
1989). Those factors are:
(1) the length of the treatment relationship and the frequency of examination;
(2)the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed; (3) the degree to
which the physician’s opinion is supported by relevant evidence; (4)
consistency between the opinion and the record as a whole; (5) whether or
not the physician is a specialist in the area upon which an opinion is
rendered; and (6) other factors brought to the ALJ’s attention which tend to
support or contradict the opinion.
Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001); 20 C.F.R. § 404.1527(c).
Although the six factors listed above are to be considered in weighing medical opinions, the
Court does not insist on a factor-by-factor analysis so long as the “ALJ’s decision [is]
‘sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source’s medical opinion and the reasons for that weight.’” Oldham,
509 F.3d at 1258 (quoting Watkins, 350 F.3d at 1300).
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Because it is based on a onetime examination of Plaintiff which did not include
treatment, Dr. Rodriguez’s opinion is not entitled to controlling weight as a treating
physician. See Watkins, 350 F.3d at 1300. The ALJ therefore appropriately considered
most of the other factors when determining the weight to give to Dr. Rodriguez’s opinion.
See Drapeau, 255 F.3d at 1213. The ALJ stated:
In November 2012, Carlos Rodriguez, Ph.D. diagnosed the claimant with
post-traumatic stress disorder, severe depression, alcohol abuse in
remission, and rule out diagnosis of borderline intellectual functioning,
dementia, and academic development disorder. No testing was done. Dr.
Rodriguez stated prognosis for change in these conditions was guarded and
they could be expected to last more than 12 months. Dr. Rodriguez based
his diagnosis on a few pages (17) of records from Spanish Peaks Mental
Health, which cover an entire three year period, and the claimant’s
statements which are inconsistent with, contradictory to, and not supported
by the evidence of record or her statements made to other care providers.
No weight is given to this unsupported assessment based more on the
statement[s] made by the claimant in a onetime interview than on any actual
factual or objective findings.
Tr. 21 (internal citation omitted). The ALJ’s analysis is sufficiently specific to make clear
the weight he gave to the medical opinion and the reasons for that weight. See Oldham,
509 F.3d at 1258. Thus, with one exception, the Court finds no reversible error in the ALJ’s
analysis of Dr. Rodriguez’s opinion.
The exception turns on the ALJ’s statement that “[n]o testing was done” was done
by Dr. Rodriguez. Tr. 21. However, as noted by Plaintiff, Motion [#14] at 32, Dr. Rodriguez
administered a Mini-Mental Status Examination.

See Tr. 577, 579.

Under most

circumstances, the Court would find such error to be harmless, because it is clear from the
ALJ’s discussion that he fully evaluated Dr. Rodriguez’s report, even going so far as to cite
to information located on the same page that the Mini-Mental Status Examination was
mentioned. See Tr. 579. However, the ALJ also stated that he gave no weight to the
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medical opinion because the bases for Dr. Rodriguez’s diagnosis were meager mental
health records and unsubstantiated, uncreditable statements made by Plaintiff. Tr. 21. It
is clear from the evaluation, though, that Dr. Rodriguez also based his diagnosis on the
Mini-Mental Status Examination. Tr. 577, 579. The reason why this is important is
because inclusion of this information could potentially alter the ALJ’s decision to give “no
weight” to the medical opinion to giving it some level of increased weight.

The

repercussions of this potential change are argued throughout Plaintiff’s briefs, and the
Court must address some of those arguments to demonstrate the possible importance of
an altered evaluation of this medical opinion.
Plaintiff argues that the ALJ erred by failing to find her mental impairments “severe”
at step two of his analysis. See, e.g., Reply [#16] at 5-11. The Tenth Circuit Court of
Appeals has addressed how an ALJ’s error at step two is often harmless:
The ALJ found at step two the alleged mental impairments (which he
identified as anxiety, depression, and a personality disorder not otherwise
specified) were medically determinable but non-severe. An error at step two
concerning the severity of a particular impairment is usually harmless when
the ALJ, as here, finds another impairment is severe and proceeds to the
remaining steps of the evaluation. See Carpenter v. Astrue, 537 F.3d 1264,
1266 (10th Cir. 2008) (“[A]ny error here became harmless when the ALJ
reached the proper conclusion that [claimant] could not be denied benefits
conclusively at step two and proceeded to the next step of the evaluation
sequence.”). The real problem occurs later in the analysis, where the ALJ is
required to consider the effect of all medically determinable impairments,
severe or not, in calculating the claimant’s RFC. See 20 C.F.R. § 404.1523
(“If we do find a medically severe combination of impairments, the combined
impact of the impairments will be considered throughout the disability
determination process.”); id. § 404.1545(a)(2) (“We will consider all of your
medically determinable impairments of which we are aware, including your
medically determinable impairments that are not “severe,” . . . when we
assess your [RFC].”). Thus, we turn to the issue of whether the ALJ properly
evaluated the effect of [the claimant’s] mental impairments in assessing his
RFC.
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Similarly, here the ALJ found that Plaintiff could not conclusively be denied benefits at step
two and proceeded to steps three, four, and five of his analysis. Thus, under most
circumstances, such error is harmless.4
However, Plaintiff further argues that the ALJ failed to account for Plaintiff’s nonsevere mental impairment of depression as part of his RFC analysis. Plaintiff misconstrues
the ALJ’s decision at step two. Not only did the ALJ find that the scant evidence of
Plaintiff’s depression did “not support a finding of a severe work limiting mental health
impairment,” Tr. 21, but he also failed to find that it was a non-severe impairment, i.e., he
found that it was not an impairment at all. The ALJ explicitly stated which of the alleged
impairments were non-severe, and he did not include depression among those
impairments. Tr. 22 (discussing cardiac problems, bilateral rib pain, hip pain, abdominal
pain, and gastric problems). Given his analysis of Plaintiff’s credibility and his decision to
give Dr. Rodriguez’s opinion no weight, the ALJ clearly found that the record did not
support a finding that depression was an impairment at all. If the alleged impairment was
unsupported by the record, then the ALJ was under no obligation to later consider it as part
of his step four analysis. See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007)
(differentiating “moderate impairment” from “no impairment” and holding that the former
must be considered by the ALJ at step four of analysis).

4

To the extent Plaintiff argues that the ALJ failed to comply with the Appeals Council
Remand Order to properly consider Dr. Vargas’s opinion regarding Plaintiff’s mental impairments,
the Court notes, first, that the Appeals Council has already examined the ALJ’s amended opinion
and affirmed it (thereby implying that the ALJ complied with its remand order), and, second, that
compliance with the Appeals Council order at this stage of the proceedings is irrelevant. What
matters is only whether Plaintiff and the Commissioner have met their respective burdens at each
of the five steps of the disability determination process, which the Court here examines to the extent
argued by the parties.

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Having clarified this point, the Court turns to the related issue of whether the ALJ
may have committed reversible error by finding that depression was not an impairment.
If the ALJ had decided to give any weight to Dr. Rodriguez’s opinion, Plaintiff’s alleged
mental impairment(s) would change from being “no impairment” to being a non-severe
impairment. If that were the case, then the ALJ’s analysis at later steps would be impacted,
because “[i]n determining the claimant’s RFC, the ALJ was required to consider the effect
of all of the claimant’s medically determinable impairments, both those he deems ‘severe’
and those ‘not severe.’” Hill v. Astrue, 289 F. App’x 289, 292 (10th Cir. 2008). As noted,
this was not done as part of the ALJ’s current analysis and, indeed, he was under no
obligation to do so if he deemed the alleged impairment to be “no impairment.” Because
the ALJ’s decision regarding the weight of Dr. Rodriguez’s opinion may be impacted by
consideration of Dr. Rodriguez’s testing, and because this weight may affect all later steps,
the ALJ committed reversible error. The Court cannot reweigh the evidence before it and
guess at what the ALJ’s decision would be under such circumstances.
Because consideration of the test administered by Dr. Rodriguez could impact the
ALJ’s analysis at steps two, three, four, and five, this case must be remanded for further
proceedings.5
IV. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that the decision of the Commissioner that Plaintiff is not
disabled is REVERSED and this matter is REMANDED for further proceedings consistent

5

The Court does not reach Plaintiff’s remaining arguments, as they may be impacted by
the ALJ’s review of the issues on remand.

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with this opinion.6
IT IS FURTHER ORDERED that Plaintiff is AWARDED her costs, to be taxed by the
Clerk of the Court pursuant to Fed. R. Civ. P. 54(d)(1), D.C.COLO.LCivR 54.1, and 28
U.S.C. § 2412(a)(1). See Knuutila v. Colvin, __ F. Supp. 3d __, __, 2015 WL 5116723, at
*5 (D. Colo. Aug. 31, 2015).

Dated: September 25, 2015

6

The Court finds that this case does not present a proper occasion on which to exercise
its discretion and direct the award of benefits. See Nielson v. Sullivan, 992 F.2d 1118, 1122 (10th
Cir. 1993). By reversing the ALJ’s decision, the Court does not find or imply that Plaintiff is or
should be found disabled. See, e.g., Knuutila v. Colvin, __ F. Supp. 3d __, __, 2015 WL 5116723,
at *5 n.5 (D. Colo. Aug. 31, 2015).

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