Sproveri v. Colvin

Filing 24

ORDER that the decision of the Commissioner that Plaintiff is not disabled is REVERSED and this matter is REMANDED. IT IS FURTHER ORDERED that Plaintiff is AWARDED his 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, 127 F. Supp. 3d 1146, 1153 (D. Colo. 2015), by Magistrate Judge Kristen L. Mix on 3/30/2018. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02955-KLM
KYLE D. SPROVERI,
Plaintiff,
v.
NANCY A. BERRYHILL, in her official capacity as 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
[#14],2 filed March 2, 2017, in support of Plaintiff’s Complaint [#1] seeking review of the
decision of Defendant Nancy A. Berryhill, 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. On May 12, 2017, Plaintiff filed an Opening Brief [#20] (the “Brief”), and Defendant
filed a Response [#21] in opposition. Plaintiff did not file a reply and the time for doing so
has elapsed. The Court has jurisdiction to review the Commissioner’s final decision under
42 U.S.C. §§ 405(g) and 1383(c). The Court has reviewed the entire case file and the

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 [#16, #23].
2

“[#14]” 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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applicable law and is sufficiently advised in the premises. For the reasons set forth below,
the decision of the Commissioner is REVERSED and REMANDED for further proceedings.
I. Background
Plaintiff alleges that he became disabled on January 1, 2012. Tr. 59.3 On March
8, 2013, Plaintiff filed applications for disability and disability insurance benefits pursuant
to Title II. Tr. 59. On May 29, 2015, an Administrative Law Judge (the “ALJ”) issued an
unfavorable decision. Tr. 73.
The ALJ determined that Plaintiff met the insured status requirements of the Act
through September 30, 2014, and that Plaintiff had not engaged in substantial gainful
activity (“SGA”) from his alleged onset date of January 1, 2012, through his date last
insured of September 30, 2014. Tr. 61. The ALJ found that Plaintiff suffers from four
severe impairments: (1) anxiety, (2) an affective disorder, (3) a personality disorder, and
(4) substance abuse addiction.

Tr. 62.

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 C.F.R. § Pt. 404, Subpt. P, App. 1 (20 C.F.R.
404.1520(d), 404.1525 and 404.1526).” Tr. 63. The ALJ next concluded that Plaintiff has
the residual functional capacity (“RFC”) to perform a full range of work at all exertional
levels with the following limitations:
[T]he [Plaintiff] was able to understand, remember and carry work/tasks
learned in up to six months; and the [Plaintiff] is able to occasionally interact
with coworkers, and supervisors, but no contact with the public.

3

The Court refers to the Transcript of the Administrative Proceedings, located at Docket
Nos. 14 through 14-11 by the sequential transcript numbers instead of the separate docket
numbers.

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Tr. 64. Based on the RFC and the testimony of an impartial vocational expert (“VE”), the
ALJ found that Plaintiff was unable to perform past relevant work, but that he was able to
perform representative occupations such as night cleaner, hand packager, motel
housekeeper, or overnight stocker. Tr. 71-72. She therefore found Plaintiff not disabled
at step five of the sequential evaluation. Tr. 72. The ALJ’s decision has become the final
decision of the Commissioner for purposes of judicial review. 20 C.F.R. § 404.981.
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
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
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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
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

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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.” Id. 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 [him or her] from performing [his or 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 [he or she] possesses the sufficient [RFC] to
perform other work in the national economy.” Id.
B.

Substantial Evidence
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
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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 asserts that the ALJ erred in eight ways. First, Plaintiff argues that the ALJ
erred by disregarding treating source opinions because they were based on Plaintiff’s selfreported symptoms. Brief [#20] at 5-6. Second, Plaintiff argues that the ALJ breached a
duty to investigate and properly resolve conflicts of evidence in the record. Id. at 6-9.
Third, Plaintiff contends that the ALJ substituted her own opinion for medical opinions with
which she disagreed, and selectively picked evidence of record to support a finding of
nondisability. Id. at 10-12. Fourth, Plaintiff argues that the ALJ failed to give good reasons
for not affording controlling weight to treating source opinions. Id. at 12-15. Fifth, Plaintiff
argues that the ALJ failed to consider Plaintiff’s reasons for noncompliance with
medications. Id. at 15-16. Sixth, Plaintiff contends that the ALJ should have found that his
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agoraphobia was a medically determinable impairment. Id. at 16-17. Seventh, Plaintiff
argues that the ALJ improperly discredited his subjective reports of non-exertional
limitations. Id. at 17-18. Eighth, Plaintiff argues that the ALJ erred in finding that some of
his “sporadic and non-demanding” activities of daily life contradicted Plaintiff’s reports of
severity. Id. at 18-19. The Court will address the necessary arguments in turn.
A.

Step Two: Agoraphobia
First, the Court addresses Plaintiff’s argument that the ALJ erred in determining that

his agoraphobia was not a medically determinable impairment. Id. at 16-17. This is a step
two inquiry.4 See Wall, 561 F.3d at 1052.
The Tenth Circuit Court of Appeals has addressed how an ALJ’s purported error at
step two in failing to find a specific impairment to be “severe” is harmless so long as the
ALJ found at least one other impairment to be “severe” and thus proceeded to later steps
of her analysis:
An impairment is “severe” if it “significantly limits [a claimant’s] physical or
mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). A
claimant must make only a de minimis showing to advance beyond step two.
Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004). To that end, a
claimant need only establish, and an ALJ need only find, one severe
impairment. See Oldham v. Astrue, 509 F.3d 1254, 1256-57 (10th Cir. 2007)
(noting that, for step two, the ALJ explicitly found that the claimant “suffered
from severe impairments,” which “was all the ALJ was required to do”). The
reason is grounded in the Commissioner’s regulation describing step two,
which states: “If you do not have a severe medically determinable physical
or mental impairment . . . or a combination of impairments that is severe . .
. , we will find that you are not disabled.” 20 C.F.R. § 404.1520(a)(4)(ii)
(emphasis added). By its plain terms, the regulation requires a claimant to

4

Thus, in this section of its Analysis, the Court does not address Plaintiff’s argument that
the ALJ failed to account for limitations stemming from the purported agoraphobia in later steps of
her decision. The Court here only addresses Plaintiff’s argument to the extent made in connection
with step two.

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show only “a severe” impairment – that is, one severe impairment – to avoid
a denial of benefits at step two. Id. (emphasis added). As long as the ALJ
finds one severe impairment, the ALJ may not deny benefits at step two but
must proceed to the next step. Thus, the failure to find a particular
impairment severe at step two is not reversible error when the ALJ finds that
at least one other impairment is severe. Here, the ALJ found six other
impairments severe.
Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). In the instant case, the ALJ found
four other impairments to be severe: anxiety, an affective disorder, a personality disorder,
and substance abuse addition. Tr. 63. Thus, the ALJ found that Plaintiff could not
conclusively be denied benefits at step two and proceeded to step three of the analysis.
Accordingly, to the extent Plaintiff argues that the ALJ erred at step two, such error is not
reversible. See Allman, 813 F.3d at 1330.
B.

Steps Three/Four: Discrediting Treating Source Opinion Based on SelfReports
Plaintiff argues that the ALJ erred in disregarding treating source opinions because

they were based on Plaintiff’s self-reported symptoms. Brief [#20] at 5-6. Specifically,
Plaintiff refers to the ALJ’s statements discrediting his various diagnoses with agoraphobia
on August 28, 2012, May 2014, and November 2014 and January 2015.5 Id. Plaintiff
argues that this is not harmless error at step three because “it influenced the conclusion
that [Plaintiff’s] psychological impairments caused only mild or moderate limitations in work
functioning, as opposed to the moderate and marked limitations consistently reflected in
treating source opinion.” Id. at 6. Defendant does not directly address Plaintiff’s step three

5

20 C.F.R. § Pt. 404, Subpt. P, App. 1 defines “panic disorder or agoraphobia” as: “(a)
Panic attacks followed by a persistent concern or worry about additional panic attacks or their
consequences; or (b) Disproportionate fear or anxiety about at least two different situations (for
example, using public transportation, being in a crowd, being in a line, being outside of your home,
being in open spaces).”

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argument. Response [#21] at 8-9 (stating merely that any step two error was harmless).
The ALJ decision states the following with respect to Plaintiff’s agoraphobia:
The claimant alleges agoraphobia. However, the diagnosis in May 2014 was
not by an acceptable medical source and was based solely on the claimant’s
reported symptoms. The claimant was also diagnosed with agoraphobia in
[sic] August 28, 2012. Dr. Smith diagnosed him with Agoraphobia in
11/201[4] and 1/2015 based solely on the claimant’s self report; and in the
January 2015 visit, the claimant was off his medication. The provider does
not seem to be aware of the claimant’s activities outside his home. The
undersigned does not find the objective signs and symptoms to support this
diagnosis. Although the claimant had reported difficulty leaving the house,
this diagnosis was the result of a one-time examination and was not
supported by other treatment notes. Notably, there is no other diagnosis for
this condition. Moreover, Frederick G. Leidal, Psy.D., found no evidence of
agoraphobia. Additionally, the claimant reported that he was not fearful or
phobic. Further, the claimant attends a methadone clinic every morning by
himself. As such, the undersigned finds that this is not a medically
determinable impairment. Moreover, any limitations that would stem from
this alleged impairment/symptom have already been accounted for in the
residual functional capacity due to the claimant’s anxiety.
Tr. 62 (internal citations omitted). The Court considers Plaintiff’s argument that the ALJ
erred in discrediting these diagnoses.
The Court first notes that the decision gives no reason for discrediting the August
28, 2012 agoraphobia diagnosis. Thus, that conclusion is incapable of review. See
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (“In this case, the ALJ offered
no explanation for the weight, if any, he gave to the [physician’s] opinion . . . . We must
remand because we cannot properly review the ALJ’s decision without these necessary
findings.”). Additionally, with respect to Plaintiff’s May 2014 diagnosis, the ALJ states that
the diagnosis was “based solely on [Plaintiff’s] reported symptoms.” Tr. 62. This is not an
adequate justification for disregarding evidence. “In the psychiatric/psychological context
there may be no laboratory or test results that measure mental disease . . . . Observations
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of medical signs by clinicians constitute medical data, and to the extent that an opinion with
regard to psychological or mental impairment rests on clinically-observed signs and
reported symptoms, the opinion is treated as any other medical opinion.” Williams v.
Colvin, No. 13-CV-1423-MSK, 2015 WL 4237593, at *8 (D. Colo. July 14, 2015). Stated
another way, a medical provider may rely on self-reported symptoms in forming a medical
opinion. The Tenth Circuit has addressed this issue in another manner:
The ALJ rejected Dr. Schmidt’s opinion, stating that it was based on plaintiff’s
complaints, which the ALJ found were not credible. This approach
impermissibly put the ALJ in the position of judging a medical professional on
how he should assess medical data – plaintiff’s complaints. An ALJ may not
substitute his lay opinion for a medical opinion. See Sisco v. United States
Dep’t of Health & Human Servs., 10 F.3d 739, 744 (10th Cir.1993).
Valdez v. Barnhart, 62 F. App’x 838, 842 (10th Cir. 2003). Thus, the ALJ erred in
disregarding the May 2014 diagnosis merely because Plaintiff was diagnosed based on his
self-reported symptoms. The ALJ similarly erred in disregarding Dr. Smith’s November
2014 agoraphobia diagnosis on the same grounds.
The ALJ’s other reason for discrediting the May 2014 diagnosis is that it was not
made by an acceptable medical source. The ALJ does not further explain this conclusion,
although the Court is able to ascertain from the record that the May 2014 diagnosis was
entered by Michael Misgen, a licensed professional counselor (“LPC”). Tr. 492-97. The
ALJ was correct in pointing out that an LPC is not an acceptable medical source. See
Romero v. Colvin, No. 13-cv-02744-LTB, 2015 WL 3542783, at *8 (D. Colo. June 5, 2015).
However, LPCs “fall within the category of ‘other sources’ whose opinions may be
considered to show the severity of a claimant’s impairment.” Id. (citing Akers v. Colvin, 556
F. App’x 754, 757 (10th Cir. 2014) (citing SSR 06–03, 2006 WL 2329939, at *2-3 (2006)).
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An ALJ “generally should explain the weight given to opinions from these ‘other sources,’”
or otherwise ensure the decision permits the Court to follow the ALJ’s reasoning. SSR
06–03, 2006 WL 2329939, at *6. Additionally, even if the ALJ were not inclined to accept
the diagnosis of an LPC, she should have still considered the severity of impairment
documented in the LPC’s notes. The ALJ has not done so, and to entirely discredit this
provider’s opinion is therefore based on faulty reasoning as well. See Thompson, 987 F.2d
at 1487.
Additionally, the ALJ refers to the opinion of Frederick G. Leidal, Psy.D., a
consultative examiner for Disability Determination Services, who found no evidence of
agoraphobia, and concluded that Plaintiff did not report being “fearful or phobic.” Tr. 62.
Dr. Leidal’s conclusion—and the ALJ’s reliance on it—is curious, given that earlier in the
same paragraph, Dr. Leidal quoted Plaintiff as reporting, “I don’t even know if anxiety is the
right word, it’s like impending doom, like if someone knocks on my door, I won’t answer it.”
Tr. 468. Also, on the previous page, Dr. Leidal quoted Plaintiff, “I don’t know what it is, I
haven’t been able to get a job in forever, and I just stay in my house, I’m afriad [sic] of
everything, and feel like a failure and can’t face anything.” Tr. 467. Thus, the ALJ
improperly limits her references to the aspects of the opinion that do not support an
agoraphobia diagnosis. See Valdez, 62 F. App’x at 843 (“The ALJ is not entitled to pick
and choose through a medical opinion, using only those parts that are favorable to a finding
of nondisability.”) (citing Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir.1984)).
Furthermore, the ALJ improperly substitutes her opinion for those of medical
professionals when stating that the ALJ “does not find the objective signs and symptoms
to support this diagnosis.” See Tr. 62; Williams, 2015 WL 4237593, at *8 (“The ALJ may
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not substitute his or her personal expertise or opinion for that of the medical professional,
speculate as to medical or other facts, or consider the credibility of statements made by the
claimant as to subjective symptoms.”) (citing McGoffin v. Barnhart, 288 F.2d 1248, 1252
(10th Cir. 2002); Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000)). Because it is
plausible that these errors may have affected the ALJ’s conclusions at step three, they are
grounds for remand. See Thompson, 987 F.2d at 1487.
Lastly, the Court finds that, contrary to the ALJ’s statement in the decision, the ALJ
has not accounted for “any limitations that would stem from [agoraphobia] . . . in the [RFC]
due to [Plaintiff’s] anxiety.” Tr. 62. Simply considering Plaintiff’s general symptoms of
anxiety does not indicate that the ALJ also considered the evidence of specific symptoms
related to agoraphobia.

The RFC mentions the word “agoraphobia” in the section

summarizing Plaintiff’s alleged symptoms, and then merely states that Plaintiff “testified that
he did not answer the door.” Tr. 65. The RFC does not consider the vast majority of
objective medical evidence regarding Plaintiff’s alleged agoraphobia. If the ALJ had
properly considered those symptoms, it may have affected the analysis at step four. Thus,
because the Court cannot follow the ALJ’s reasoning in connection with Plaintiff’s asserted
agoraphobia and related symptoms, this case must be remanded.
C.

Plaintiff’s Work History
The Court also addresses Plaintiff’s argument that the ALJ made incorrect factual

findings regarding his work history. App. Brief [#20] at 6-9. Specifically, the finding that
Plaintiff challenges is that he was able to, and did, work full-time from May to November
of 2013. See Tr. 63. The ALJ bases this finding on two clinical notes taken by Janelle
Blake, B.A., at North Denver Behavioral Health. See Tr. 63 (citing Tr. 507, 508). The first
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note, dated May 3, 2013, summarizes Plaintiff’s treatment over the previous year and
states, “We will work on budgeting in sessions, and because patient is now working full
time, he will need to pursue getting a GED in the evenings.” Tr. 507. The second note,
dated November 12, 2013, states, “Patient is finished working for the season. Next season
he will have his own truck but still needs the support of the boss who reminds him of his
step-father,” and her assessment was that, “Patient appears to be in a major depressive
episode.” Tr. 508. At the hearing, Plaintiff testified that he had not worked since 2012,
when he “had to cold call people for donations,” and that he did not know of a job requiring
a truck because he “[didn’t] even have a driver’s license.” Tr. 86.
The ALJ’s statement that Plaintiff worked full-time from May to November 2013 is
not supported by substantial evidence. See Wilson, 602 F.3d at 1140. The note on
November 12, 2013, which represented that Plaintiff had “finished working for the season,”
does not indicate the date on which Plaintiff stopped working, nor does it indicate that
Plaintiff had been working full-time for any period of time. Tr. 508. Plaintiff’s testimony at
the hearing did not shed any light on the issue, as he outright denied that he had worked
during that period and implied that his lack of a driver’s license would be prohibitive to him
driving a truck. Tr. 86.
The ALJ refers to the fact that Plaintiff worked full-time from May to November 2013
several times in steps three and four, including in finding that Plaintiff had a “mild
restriction” in activities of daily living, and giving the opinions of treating medical providers
Lara Mercer and Lynn Bodensteiner little weight due in part to “conflicting testimony about
his activities of daily living and his work activity.” Tr. 63, 67, 69, 70. The ALJ again refers
to Plaintiff’s work history in the conclusion of the RFC section: “[The RFC] is also consistent
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with his activities of daily living which includes working full time 5/2013 to 11/2013 . . . .”
Tr. 70. Additionally, the ALJ referred to these inconsistencies several times when stating
that she did not find Plaintiff credible. Tr. 62, 67. 70. While it is unclear precisely how
much weight was given to Plaintiff’s alleged 2013 work history, it appears to have had a
substantial effect on the outcome of this case, considering the number of times the ALJ
refers to the inconsistencies regarding Plaintiff’s work history in the decision.
Given these issues regarding the evidence underlying the ALJ’s decision, the Court
finds it prudent and fair to remand this matter to the Commissioner for reconsideration
rather than to conduct its own analysis in the first instance which would essentially result
in the prohibited reweighing of the evidence. Thompson, 987 F.2d at 1487. However, the
Court makes no comment or opinion on the merit of any other argument submitted by
Plaintiff. In addition to addressing the issues raised in this Order, the Court invites the ALJ
to revise her decision in any way she deems appropriate to address issues raised by
Plaintiff in this case which Plaintiff purports to have been error.
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 proceedings consistent with this
opinion.6

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, 127 F. Supp. 3d 1146, 1152 n.5 (D. Colo.
2015).

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IT IS FURTHER ORDERED that Plaintiff is AWARDED his 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, 127 F. Supp. 3d 1146, 1153 (D. Colo. 2015).

Dated: March 30, 2018

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