Amanat v. Colvin
Court Docket Sheet

District of Alaska

1:2016-cv-00016 (akd)

MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Howard D. Olinsky. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2318870.) by Sedigheh Amanat.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA SEDIGHEH AMANAT, Case No. 1:16-cv-00016-TMB Plaintiff(s), MOTION AND APPLICATION OF vs. NON-ELIGIBLE ATTORNEY FOR NANCY A. BERRYHILL, PERMISSION TO APPEAR AND Acting Commissioner of Social Security, PARTICIPATE IN THE UNITED STATES DISTRICT COURT Defendant(s). FOR THE DISTRICT OF ALASKA To the Honorable Judge of the above-entitled court: I, Howard D. Olinsky, hereby apply for permission to appear and (name) participate as counsel for Sedigheh Amanat, plaintiff, (Name of party) (plaintiff/defendant) in the above-entitled cause pursuant to Rule 83.1 (d) of the Local Rules for the United States District Court, District of Alaska. I hereby apply for permission to appear and participate as counsel WITHOUT ASSOCIATION of local counsel because [check whichever of the following boxes apply, if any]: I am a registered participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. I have concurrently herewith submitted an application to the Clerk of the Court for registration as a participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. For the reasons set forth in the attached memorandum. Case 1:16-cv-00016-TMB Document 14 Filed 04/20/17 Page 1 of 4 OR I hereby designate, a member of the Bar of this court, (Name) who maintains an office at the place within the district, with whom the court and opposing counsel may readily communicate regarding conduct of this case. DATE: (Signature) Howard D. Olinsky (Printed Name) (Address) (City/State/Zip) (Telephone Number) (e-mail address) Consent of Local Counsel* I hereby consent to the granting of the foregoing application. DATE: (Signature) (Printed Name) (Address) (City, State, Zip) (Telephone) (*Member of the Bar of the United States District Court for the District of Alaska) Case 1:16-cv-00016-TMB Document 14 Filed 04/20/17 Page 2 of 4 DECLARATION OF NON-ELIGIBLE ATTORNEY Full Name: Howard D. Olinsky Business Address: 300 S. South Street, Ste. 420, Syracuse, NY 13202 (Mailing/Street) (City, State, ZIP) Residence: 4435 Swissvale Drive, Manlius, NY 13104 (Mailing/Street) (City, State, ZIP) Business Telephone: 315-701-5780 e-mail address: holinsky@windisability.com Other Names/Aliases: N/A Jurisdictions to Which Admitted and year of Admission: See attached sheet (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) Are you the subject of any pending disciplinary proceeding in any jurisdiction to which admitted? Yes No (If Yes, provide details on a separate attached sheet) Have you ever been suspended from practice or disbarred in any jurisdiction to which admitted? Yes No (If Yes, provide details on a separate attached sheet) In accordance with D.AK. LR 83.1(d)(4)[A](vi), I certify I have read the District of Alaska local rules by visiting the court's website at http://www.akd.uscourts.gov and understand that the practices and procedures of this court may differ from the practices and procedures in the courts to which I am regularly admitted. A Certificate of Good Standing from a jurisdiction to which I have been admitted is attached. Pursuant to 28 U.S.C. §1746, I hereby declare under penalty of perjury that the foregoing information is true, correct, and accurate. Dated: April 20, 2017 s/Howard D. Olinsky (Signature of Applicant) Case 1:16-cv-00016-TMB Document 14 Filed 04/20/17 Page 3 of 4 Attachment to Pro Hac Vice Application for Howard D. Olinsky: Court Date of Admission In Good Standing? New York State 02/07/1986 YES State of Georgia 01/23/2014 YES United States Supreme Court 04/01/1991 YES Court of Appeals for 2nd Circuit 11/01/2002 YES Court of Appeals for 6th Circuit 10/15/2013 YES Court of Appeals for Federal Circuit 06/12/2007 YES U.S. Court of Veteran’s Appeals, Washington D.C. 06/12/2007 YES U.S.D.C., NDNY 04/22/1986 YES U.S.D.C., WDNY 01/29/2001 YES U.S.D.C., EDNY 03/21/2003 YES U.S.D.C., SDNY 03/25/2003 YES U.S.D.C., DCT 12/10/2010 YES U.S.D.C., NDFL 10/31/2011 YES U.S.D.C., EDMI 02/25/2013 YES U.S.D.C., WDMI 12/26/2013 YES U.S.D.C., EDTX 12/20/2013 YES U.S.D.C., EDAR 01/03/2014 YES U.S.D.C., WDAR 01/03/2014 YES U.S.D.C., MDGA 01/28/2014 YES U.S.D.C., NDIL 01/30/2014 YES U.S.D.C., NDGA 02/10/2014 YES U.S.D.C., EDWI 04/14/2014 YES U.S.D.C., NDTX 05/15/2014 YES U.S.D.C., DCO 06/18/2014 YES U.S.D.C., SDGA 06/02/2014 YES U.S.D.C., WDWI 07/03/2014 YES U.S.D.C., WDTX 09/15/2014 YES U.S.D.C., NDIN 08/04/2015 YES U.S.D.C., CDIL 09/24/2015 YES U.S.D.C., SDIL 09/25/2015 YES U.S.D.C., EDMO 04/13/2017 YES Case 1:16-cv-00016-TMB Document 14 Filed 04/20/17 Page 4 of 4

Certificate of Good Standing

AO 136 (Rev. 10/13) Certificate of Good Standing UNITED STATES DISTRICT COURT for the Northern District of New York CERTIFICATE OF GOOD STANDING I, Lawrence K. Baerman, Clerk of this Court, certify that HOWARD D. OLINSKY, Bar # 102297, was duly admitted to practice in this Court on April 22, 1986, and is in good standing as a member of the Bar of this Court. Dated at Syracuse, New York on March 27, 2017 (Location) (Date) Lawrence K. Baerman CLERK DEPUTY CLERK Case 1:16-cv-00016-TMB Document 14-1 Filed 04/20/17 Page 1 of 1

REPLY to Response to Motion re {{12}} MOTION for Remand in a Social Security Appeal filed by Sedigheh Amanat.

PAUL B. EAGLIN Alaska Bar No. 9304010 Attorney for Plaintiff Olinsky Law Group 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 ext. 320 Fax: (315) 701-5781 peaglin@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA SEDIGHEH AMANAT, Plaintiff, CIVIL NO. 1:16-cv-00016-TMB-v-NANCY A. BERRYHILL, PLAINTIFF’S REPLY Acting Commissioner of Social Security, Defendant.-----------------------------------------------------------Plaintiff reasserts and relies upon the arguments set forth in Plaintiff’s Memorandum of Law ("Dkt. No. 12"), and replies to the following particular points by the Defendant in her response ("Dkt. No. 13"). 1. The ALJ’s finding that Amanat waived her right to appear at her hearing is not supported by substantial evidence and is contrary to the evidence in the record showing good cause. Defendant argues that Plaintiff’s reliance on C.F.R. §404.936(g) is misplaced because she did not request a change of time or place for her hearing. Dkt. No. 13 at 5. However, it can be inferred that Plaintiff made such a request. The Office of Disability Adjudication and Review ("ODAR") knew she had missed her flight and was taking another flight that would get her to Anchorage later that same day. Administrative Transcript ("T") 205. If Plaintiff did not want to change the time of the hearing, she would not have taken another flight. She was informed that 1 Amanat v. Berryhill, No. 1:16-cv-00016-TMB Case 1:16-cv-00016-TMB Document 15 Filed 04/25/17 Page 1 of 3 the representative did not know if the ALJ would postpone the hearing, further implying that Plaintiff requested to change her hearing to a different time on the same day. Since ODAR knew that she was trying to get to the hearing, it is impossible for her to have waived her right. The ALJ’s finding of constructive waiver is directly contradicted by Plaintiff’s actions. Defendant then argues that the standard is a meaningful opportunity to be heard, and cites to a Supreme Court case that discusses due process. Dkt. No. 13 at 5. However, that case only applies in cases where benefits have been terminated. Mathews v. Eldridge, 424 U.S. 319, 336 (1976). Here, in a case where Plaintiff does not receive benefits and pain and credibility were a factor in the decision, an in person hearing would have helped the ALJ make a decision. There is no question that it would have helped the ALJ understand why she refused cortisone injections despite her claim of pain. T 25. CONCLUSION Based on the foregoing and Plaintiff’s Memorandum of Law, it is respectfully requested that the final agency decision be vacated and this matter be remanded for a calculation of benefits. In the alternative, it is requested that this matter be remanded for further administrative proceedings. April 25, 2017/s/Paul B. Eaglin Paul Eaglin Alaska Bar No. 9304010 Attorney for Plaintiff Olinsky Law Group 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 x320 Fax: (315) 701-5781 peaglin@windisability.com 2 Amanat v. Berryhill, No. 1:16-cv-00016-TMB Case 1:16-cv-00016-TMB Document 15 Filed 04/25/17 Page 2 of 3 Certificate of Service: Counsel for the parties are registered users of CMECF system. Notice of this document is served on agency counsel, Michael Tunik, SAUSA, and Richard L. Pomeroy, AUSA, by Notice of Electronic Filing through the CM/ECF system, on the date indicated by the Notice of Electronic filing strip at footer of page. April 25, 2017/s/Paul B. Eaglin 3 Amanat v. Berryhill, No. 1:16-cv-00016-TMB Case 1:16-cv-00016-TMB Document 15 Filed 04/25/17 Page 3 of 3

DECISION AND ORDER: IT IS ORDERED that Plaintiff's request for relief at Docket [1] is GRANTED. The Commissioner's final decision is VACATED and the case is REMANDED to the SSA for an immediate calculation of benefits. The Clerk of Court is directed to enter a final judgment in accordance with this Order. Signed by Judge Timothy M. Burgess on 3/13/2018. (JDS, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA SEDIGHEH AMANAT, Plaintiff, vs. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. Case No. 1:16-cv-00016-TMB DECISION AND ORDER On September 10, 2012, Ms. Sedigheh Amanat filed an application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act (the "Act"), 1 alleging disability beginning May 1, 2012 due to "right and left knee problems." 2 Ms. Amanat has exhausted her administrative remedies and on November 18, 2016, she filed a Complaint seeking relief from this Court. 3 On March 13, 2017, Ms. Amanat filed a Motion for Remand in a Social Security Case. 4 The Commissioner of Social Security ("Commissioner") filed an Answer and a Response in Opposition to Motion for Remand in a Social Security Case. 5 On April 25, 2017, Ms. Amanat filed a Reply. 6 Oral argument was not requested and not necessary 1 The Court uses the term "disability benefits" to describe Ms. Amanat's SSI claims. 2 Administrative Record ("A.R.") 207. 3 Docket 1 (Compl.) at 2–3. 4 Docket 12 (Amanat's Opening Br.). 5 Docket 10 (Answer); Docket 13 (Defendant's Br.). 6 Docket 15 (Reply). 6 to the Court's decision. This Court has jurisdiction to hear an appeal from a final decision of the Commissioner. 7 For the reasons set forth below, Ms. Amanat's request for relief at Docket 1 will be GRANTED. I. STANDARD OF REVIEW A decision by the Commissioner to deny disability benefits will not be overturned unless it is either not supported by substantial evidence or is based upon legal error. 8 "Substantial evidence" has been defined by the United States Supreme Court as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 9 Such evidence must be "more than a mere scintilla," but may be "less than a preponderance." 10 In reviewing the agency's determination, the Court considers the evidence in its entirety, weighing both the evidence that supports and that which detracts from the administrative law judge ("ALJ")'s conclusion. 11 If the evidence is susceptible to more than one rational interpretation, the ALJ's conclusion must be upheld. 12 A reviewing 7 42 U.S.C. § 405(g). 8 Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)). 9 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 10 Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975) (per curiam). 11 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 12 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971)). Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 2 of 36 6 court may only consider the reasons provided by the ALJ in the disability determination and "may not affirm the ALJ on a ground upon which she did not rely." 13 II. DETERMINING DISABILITY The Act provides for the payment of disability insurance to individuals who have contributed to the Social Security program and who suffer from a physical or mental disability. 14 In addition, SSI may be available to individuals who are age 65 or older, blind, or disabled, but who do not have insured status under the Act. 15 Disability is defined in the Act as follows: [I]nability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 16 The Act further provides: An individual shall be determined to be under a disability 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. 17 13 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). 14 42 U.S.C. § 423(a). 15 42 U.S.C. § 1381a. 16 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). 17 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 3 of 36 6 The Commissioner has established a five-step process for determining disability within the meaning of the Act. 18 A claimant bears the burden of proof at steps one through four in order to make a prima facie showing of disability. 19 If a claimant establishes a prima facie case, the burden of proof then shifts to the agency at step five. 20 The Commissioner can meet this burden in two ways: "(a) by the testimony of a vocational expert, or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2." 21 The steps, and the ALJ's findings in this case, are as follows: Step 1. Determine whether the claimant is involved in "substantial gainful activity." The ALJ concluded that Ms. Amanat has not engaged in substantial gainful activity since September 10, 2012, the application date. 22 Step 2. Determine whether the claimant has a medically severe impairment or combination of impairments. A severe impairment significantly limits a claimant's physical or mental ability to do basic work activities and does not consider age, education, or work experience. The severe impairment or combination of impairments must satisfy the twelve-month duration requirement. The ALJ determined that Ms. Amanat has the following severe impairments: degenerative joint disease and internal derangement of the bilateral knees, cognitive disorder (probable early-onset dementia), and depression. 18 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 19 Triechler v. Comm'r Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014) (quoting Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007)); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 20 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original). 21 Tackett, 180 F.3d at 1101. 22 A.R. 19. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 4 of 36 6 He found that Ms. Amanat's allegations of back pain, anxiety, and posttraumatic stress disorder ("PTSD") are not medically determinable impairments. Additionally, the ALJ determined that although the record contained medical evidence of obesity, Ms. Amanat's obesity was not severe within the meaning of the applicable law. 23 Step 3. Determine whether the impairment is the equivalent of any of the listed impairments found in 20 C.F.R. pt. 404, subpt. P, app.1 that are so severe as to preclude substantial gainful activity. If the impairment is the equivalent of any of the listed impairments, and meets the duration requirement, the claimant is conclusively presumed to be disabled. If not, the evaluation goes on to the fourth step. The ALJ determined that Ms. Amanat does not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. 24 Before proceeding to step four, a claimant's residual functional capacity ("RFC") is assessed. Once determined, the RFC is used at both step four and step five. An RFC assessment is a determination of what a claimant is able to do on a sustained basis despite the limitations from her impairments, including impairments that are not severe. 25 The ALJ concluded that Ms. Amanat has the RFC to perform medium work except she "is limited to occasional climbing of ramps or stairs, kneeling, and crouching; no climbing of ladders, ropes, or scaffolds; must avoid concentrated exposure to non- 23 A.R. 20. 24 Id. 25 20 C.F.R. § 416.945(a)(1). Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 5 of 36 6 weather related extreme cold; and work limited to 1-2 step tasks involving only simple work-related decisions with few, if any, workplace changes."26 Step 4. Determine whether the claimant is capable of performing past relevant work. At this point, the analysis considers whether past relevant work requires the performance of work-related activities that are precluded by the claimant's RFC. If the claimant can still do her past relevant work, the claimant is deemed not to be disabled. Otherwise, the evaluation process moves to the fifth and final step. The ALJ found that Ms. Amanat is not able to perform any past relevant work. 27 Step 5. Determine whether the claimant is able to perform other work in the national economy in view of her age, education, and work experience, and in light of the RFC. If so, the claimant is not disabled. If not, the claimant is considered disabled. Based on the testimony of the vocational expert ("VE"), the ALJ concluded that there are jobs that exist in significant numbers in the national economy that Ms. Amanat can perform, including the positions of janitor, cleaner II, and scrap sorter. 28 Based on the foregoing, the ALJ found Ms. Amanat not disabled since September 10, 2012. 29 26 A.R. 22. 27 A.R. 29. 28 A.R. 30. 29 A.R. 31. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 6 of 36 6 III. PROCEDURAL AND FACTUAL BACKGROUND Ms. Amanat was born in September of 1962; she is currently 55 years old. 30 She was born in Iran and attended school through fifth grade. She does not speak English. After her husband died, she worked as a care assistant in an Iranian nursing home, doing personal care for the elderly. 31 In 2011, she left Iran and was granted asylum. She began living in Texas where she worked for a brief time at a meat packing plant. 32 Ms. Amanat filed an application for disability benefits on September 10, 2012, alleging disability beginning May 1, 2012. 33 After an initial denial, she filed for reconsideration of the decision and her claim was again denied on September 12, 2013. 34 Ms. Amanat filed a request for hearing before an ALJ on November 2, 2013. 35 30 A.R. 207. 31 A.R. 269, 275. Ms. Amanat's Pre-Hearing Brief of March 18, 2015 by Eric Vang of Alaska Legal Services Corporation and Ms. Amanat's letter of March 25, 2015 (translated)("Ms. Amanat's letter") both state that Ms. Amanat worked in Iran as a care assistant in a nursing home. Mr. Vang states that Ms. Amanat worked for five years as a care assistant, beginning in approximately 2006. 32 Eric Vang testified at the hearing held in Anchorage, Alaska on March 19, 2015 that Ms. Amanat worked at a meat packing plant in Texas for "four or four-and-a-half" months. A.R. 46. Ms. Amanat's letter states that she worked "several positions on the assembly line." A.R. 275. The Pre-Hearing Brief states that Ms. Amanat worked at the meat packing plant for approximately two months and a half months. A.R. 269. However, Ms. Amanat's disability report shows that she did not work before or after the application date. A.R. 221. 33 A.R. 207. 34 A.R. 82. 35 A.R. 88. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 7 of 36 6 The hearing was held on March 19, 2015 in Anchorage, Alaska, but Ms. Amanat was not present. It was a continuation of a hearing originally scheduled to take place in Juneau, Alaska in 2014, "because [Ms. Amanat] needed the services of an interpreter which was not possible with the facilities in Juneau."36 Ms. Amanat had objected to a video hearing. 37 On the morning of the hearing, Ms. Amanat missed her flight from Juneau to Anchorage. The hearing was scheduled for 1:15 p.m. The ALJ rescheduled and then conducted the hearing an hour and fifteen minutes early, at 12:00 p.m. "due to the fact that [Ms. Amanat] would not be able to make it here for the 1:15 hearing, even if we started at that point-in-time." Ms. Amanat's counsel, Eric Vang, represented her at the hearing. 38 The day after the hearing, the ALJ issued a Request to Show Cause for Failure to Appear. 39 In a letter dated March 25, 2015 from Ms. Amanat's escort, Beheshteh Sadeghi, he indicated that they missed their flight to Anchorage due to his mistake. He reported that he "informed ODAR [Office of Disability Adjudication and Review] office that we had missed our flight and that we would be late to the hearing. I also informed ODAR that we would travel on the next available plane to Anchorage. Because that flight had 36 A.R. 39. 37 A.R. 158. 38 A.R. 39–40. 39 A.R. 206. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 8 of 36 6 two stops we arrived in Anchorage at about 1:55pm." 40 He also stated that "I attempted to get Ms. Amanat to the hearing office as quickly as possible so I first rented a car, however, I could not get the GPS on my cell phone to indicate where the hearing office was. So I returned the rental care [sic.] and we took a taxi to the hearing office." He reported "[w]e arrived at the hearing office at 3pm and were told the Judge had left the building." 41 In his decision of April 10, 2015, the ALJ found that Ms. Amanat "did not have good cause for her failure to appear at the hearing held March 19, 2015 in Anchorage, Alaska." 42 The Appeals Council denied review of the ALJ's disability determination. 43 As such, the ALJ's decision is the final decision of the Social Security Administration ("SSA"). 44 Ms. Amanat filed her Complaint seeking judicial review by this Court on November 18, 2016. 45 40 A.R. 205, 274. ODAR has a record of Mr. Sadeghi's telephone call on March 19, 2015. There is no record of the time that the call came in. The record notes that "[f]riend of claimant called to explain that their plane is scheduled to land at 2pm. They missed the morning flight at the fault of the escorting friend. They are set to take off on the next available flight; which from the escort's claim is just about to occur. I explained that I am unsure if the judge will be okay holding until 2pm to start the hearing and that they will be contacted as soon as possible regarding the issue." 41 A.R. 205. 42 A.R. 19. 43 A.R. 1. 44 Brewes v. Comm'r Soc. Sec. Admin., 682 F.3d 1157, 1161–62 (9th Cir. 2012). 45 Docket 1. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 9 of 36 6 The Medical Record The following is a summary of the relevant medical records filed with the Court: On May 14, 2012, Ms. Amanat was seen for right knee pain by an unknown provider. The provider prescribed tramadol. 46 On June 19, 2012, Ms. Amanat saw an unknown provider for pain in both knees, "but worse on [lef]t knee." The provider noted tenderness with range of motion, "difficulty ambulating due to pain" in the lower extremities, and "deformity of both knees." The doctor prescribed tramadol at the visit. 47 On June 25, 2012, Ms. Amanat saw an unknown provider for "backache," "joint swelling," and "pain on movement." The record notes "tenderness" in both knees and that she "seems to be depressed." The provider also reported that Ms Amanat had "constant pain" in both knees, but more in the right knee than left. The provider noted that the plan for Ms. Amanat included an MRI on the right knee for "chronic osteoarthritis." 48 On August 2, 2012, the record shows Ms. Amanat saw Andrew Booker, M.D. Dr. Booker observed that she had "an antalgic gait due to right knee pain." He reported that an examination of Ms. Amanat's right knee revealed that she had "pain with forced flexion at the knee" and "pain with palpation laterally." He reported that "she opens laterally indicating some ligamentous instability" and that it "was difficult to completely examine 46 A.R. 292–94. Tramadol is a narcotic-like pain reliever used to treat moderate to severe pain. See https://www.drugs.com/tramadol.html (last visited February 27, 2018). 47 A.R. 287–90. 48 A.R. 282–85. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 10 of 36 6 her meniscus with McMurray's due to increased pain and tenderness. There is about a 1+ effusion about this knee but no erythema or ecchymosis." Dr. Booker's review of an x-ray showed "a normal right knee with no fractures and no dislocations." 49 On August 6, 2012, Ms. Amanat received an MRI of her right knee. The reading physician, Michael Daniel, M.D., concluded that Ms. Amanat had "[i]nterval progression in chondral loss involving the medial facet of the patella with suggestion of a small amount of delamination," "[s]table mild osteoarthritis involving the medial compartment," "stable findings of remote proximal MCL injury," and "[s]mall joint effusion." 50 On August 14, 2012, Dr. Booker opined that "[Ms. Amanat] would probably benefit from a steroid injection in the knee which is what we had suggested for her but she does not want to do that today, probably because of cost, but it is a little hard to know through the interpreter if that is the exact reason. In any event, she is not interested in a shot and certainly is not a candidate for surgery. She could conceivably go to therapy but again, [she is] uninsured and I do not think she would be able to pay for this." 51 On January 10, 2013, Ms. Amanat visited the County of Sacramento Primary Care Clinic for bilateral knee pain. She indicated that the pain had been "going on for 12 years," but that it was "getting worse as she gets older." Nurse practitioner Lionel Williamson noted that Ms. Amanat's extremities were "normal except for has slightly edema in right knee." He also noted that her "[l]eft knee has some crepitus swelling," but that it was "less 49 A.R. 351. 50 A.R. 352–53. 51 A.R. 350. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 11 of 36 6 than right knee." Mr. Williamson observed that Ms. Amanat had pain "with full extension" and was "able to flex and rotate with pain." He also observed that her left knee had the same range of motion as the right knee. Ms. Williamson observed that she had a "[n]ormal gait and station." Her BMI at the visit was reported as 32.72. Ms. Amanat reported her current medications were Motrin, Norco, and vitamin D. 52 On January 16, 2013, Sadegh Golkar at the County of Sacramento Primary Care Clinic noted that Ms. Amanat had no deformities, cyanosis, edema or varicosities in her lower extremities. He assessed Ms. Amanat for pain in her lower leg. Dr. Golker reported that he indicated she should continue with a "NSAID of choice." Dr. Golkar also noted that "since she is on LIHP program not able to order any fu[r]ther testing." 53 On March 13, 2013, Ms. Amanat visited Nicholas Forde, M.D. the Sacramento Family Medical Clinic in Rancho Cordova, California for "joint pain, joint swelling, presence of joint fluid, stiffness, arthritis, and loss of strength," as well as depression. Her BMI at the visit was reported as 36.13. Dr. Forde observed that she did not have full range of motion in her right knee and a had "spongy effusion of patellar areas and tenderness along medial and lateral collateral regions; pain with rotation/pivot and ant[erior] drawer." Dr. Forde prescribed tramadol, acetaminophen pm for sleep, and vitamin D at the visit. He also reported that she denied difficulties with concentration or memory loss. 54 52 A.R. 338–41. 53 A.R. 336–37. 54 A.R. 369–75. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 12 of 36 6 On March 28, 2013, Ms. Amanat visited Dr. Forde. He reported that Ms. Amanat declined a cortisone injection. 55 On May 13, 2013, Ms. Amanat saw Dr. Forde for "sharp" knee pain. Dr. Forde noted that "knee is still a problem, but tramadol has been more helpful for her pain relief." He noted that she had "done PT twice in the past for her knee." Dr. Forde diagnosed her with internal derangement of the right knee, recurrent major depression with suspected PTSD, and degenerative joint disease in the knee. He reported that he discussed her depression symptoms with her at the visit and noted that she was on Xanax for anxiety. He prescribed Celexa for depression. She denied "[a] sense of great danger, thoughts of suicide, thoughts of violence, and frightening visions or sounds." 56 On August 2, 2013, Ms. Amanat saw Janis Smith at the Sacramento Family Medical Clinic in Rancho Cordova, California for leg pain in both legs and refills of her medications. She was prescribed tramadol and Prozac. Ms. Smith summarized an MRI from August 2012 as follows: "[i]nterval progression in chondral loss involving the medial facet of the patellaw [sic.] [w]ith suggestion of a small amount of delamination," "[s]table mild osteoarthritis involving the medial compartment," "[s]table findings of remote proximal MCL injury, and "[s]mall joint effusion." Ms. Amanat was treated for major depression, "with suspected PTSD" at the visit. Her BMI was reported as 36.41. Upon physical examination, Ms. Smith noted "spongy effusion of patellar areas and tenderness along medial and lateral collateral regions; pain with rotation/pivot and ant[erior] [d]rawer." 55 A.R. 76. 56 A.R. 364–68. See https://www.webmd.com/drugs/2/drug-9824/xanax-oral/details and https://www.webmd.com/drugs/2/drug-8603/celexa-oral/details (last visited Dec. 8, 2017). Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 13 of 36 6 Ms. Smith observed Ms. Amanat as "alert and cooperative; normal mood and affect; normal attention span and concentration."57 On August 6, 2013, an x-ray of Ms. Amanat's knees showed "narrowing of the medial compartment of both knees left greater than right with proliferative spurring and tibial spurring," "no definite fracture or dislocation," "[s]mall suprapatellar effusions left greater than right," and "[d]egenerative changes of both knees left greater than right especially of the medial compartment with scattered proliferative spurring." 58 On September 18, 2013, Ms. Amanat visited the Sacramento Family Medical Clinic in Rancho Cordova, California. Dr. Forde prescribed vitamin D, acetaminophen pm for sleep, Prozac for depression and tramadol for "severe pain." 59 On October 17, 2013, Ms. Amanat saw Janna Brewster, ANP at the Front Street Clinic in Juneau, Alaska. Ms. Brewster observed Ms. Amanat presenting with an antalgic gait and "[l]imping due to left knee pain." Ms. Brewster recommended that Ms. Amanat "[l]imit weight bearing when pain increases" and prescribed fluoxetine for depression. 60 On October 24, 2013, Ms. Amanat had x-rays taken of her right and left knees. The interpreting radiologist noted that "[t]here is some mild osteophytic spurring at the patellofemoral joint," but "[n]o other abnormalities are seen" on the right knee and that Ms. Amanat's left knee "shows osteophytic spurring medially, laterally, and anteriorly" and 57 A.R. 355–57. Prozac (fluoxetine) is used to treat depression, panic attacks, obsessive compulsive disorder, bulimia, and premenstrual dysphoric disorder. See https://www.webmd.com/drugs/2/drug-6997/prozac-oral/details (last visited February 27, 2018). 58 A.R. 381. 59 A.R. 379. 60 A.R. 415. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 14 of 36 6 "[t]he patellofemoral joint appears within normal limits." The radiologist also noted that "[n]o other abnormality is seen" regarding Ms. Amanat's left knee. 61 On October 28, 2013, Ms. Amanat saw Ms. Brewster for worsening knee pain in both knees, with more pain in her right knee. Ms. Brewster noted that Ms. Amanat reported she was "[u]nable to walk/stand for any length of time." As part of her examination, Ms. Brewster observed "[r]ight knee McMurray Maneuver with pain to varus stress near lateral meniscuss [sic.], no pain to valgus maneuver. Does have pain in lateral area with lachman's, no pain in ACL. Pain, mostly lateral, with direct palpation of knee joint." Ms. Brewster also observed that Ms. Amanat's range of motion was normal and no effusion and no swelling were detected. She noted that the "[k]nee will flex to 90 degrees." Ms. Brewster reported that she had similar exam results for Ms. Amanat's left knee. Ms. Brewster also reported Ms. Amanat "would like assistance to obtain disability so [she] might be able to have surgery as with no income, [she] cannot afford any treatment." 62 On November 12, 2013, Ms. Amanat had MRIs taken of both knees. The staff physician interpreting the MRI for Ms. Amanat's left knee found that she had a "radial tear with a small displaced flap component in the posterior horn medial meniscus at the root insertion, [m]oderate peripheral extrusion and moderate to marked osteoarthritis in the medial compartment, [m]oderate degenerative signal and thickening in the cruciate ligaments and in the proximal lateral collateral ligament from chronic stress or remote 61 A.R. 417–18. 62 A.R. 419. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 15 of 36 6 sprains, [m]ild to moderate patellofemoral compartment cartilage loss, [m]oderate-sized joint effusion contain[ing] several small cartilage bodies, [and] [m]oderate sized bilobed septated parameniscal or ganglion cyst lying anterior to the anterior horn root insertion lateral meniscus and anterior to the distal insertion of the anterior cruciate ligament." 63 The impression of Ms. Amanat's right knee showed a "[l]arge radial tear in the posterior horn root insertion medial meniscus with marked peripheral extrusion, [m]oderate medial compartment osteoarthritis, [m]ild patella alta, lateral patellar tilt and subluxation, [as well as] [p]artial thickness cartilage loss focally involving the superior patella and the lateral, and inferomedial trochlea, [and] [s]mall joint effusion." 64 On December 9, 2013, David McCandless, M.D., also at the Front Street Clinic, examined Ms. Amanat for knee pain. As part of his examination he noted that she had a body mass index ("BMI") of 37. He observed that she "[had] difficulty ambulating with a slightly widened gait, stiff legs" and reported that Ms. Amanat rated her pain "at a level 7/10 at the time of the interview." Upon examination of Ms. Amanat's knees, Dr. McCandless noted the following: Examination of the knees shows tenderness, especially in the medial sides and on both sides. The right side seemed more tender than the left. There was no acute redness or unusual warmth. There was some puffiness around the joint margins and ballotable changes of the patella suggesting effusion on the right side. The patella did not seem to be easily displaced although it was painful to try. Shelf and Drawer signs were negative for displacement, but it was quite uncomfortable to the bilateral lower extremities. Stressing the collateral ligaments also caused discomfort especially on the medial sides, but laxity was relatively mild. Her range of motion showed more crepitation on the right than on the left. She did have a positive McMurray's sign on both sides with locking and sharp sudden 63 A.R. 424. 64 A.R. 421–22. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 16 of 36 6 pain consistent with meniscus tears. With readjustment full range can be accomplished. 65 Dr. McCandless assessed Ms. Amanat with "[b]ilateral posterior horn disruption with extrusions, effusion, free bodies, and the appearance of chronic inflammation of the cruciate and collateral ligaments." Dr. McCandless also wrote that she had "some degenerative change more in the medial compartments with the right being more prominent than the left. This has reached the point of physical disability in ambulation in addition to the pain." He diagnosed her with "[m]ajor depression, moderately severe with suicidal ideation" and noted that "fluoxetine has been tried before and caused adverse side effects of agitation, anxiety, and nightmares." Dr. McCandless reported that Ms. Amanat did not suffer from delusions or hallucinations at the office visit. He recommended that she be reassessed in a month for her knee pain and "consider chronic pain management with Gabapentin in addition to the antidepressant." Dr. McCandless opined that Ms. Amanat's knees would "prevent her from doing the kind of work she has done in the past as a healthcare worker where she would need to be on her feet much of the time." He also opined that he "would consider her disabled on the basis of her knees alone with regard to work she is skilled to do, but note that this is aggravated by major and severe depression, language barrier, severe social stress." He 65 A.R. 427. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 17 of 36 6 reported that he recommended she "start some kind of exercise." Finally, he opined that "we need to start to pursue surgical treatment for her knees locally or elsewhere." 66 On December 18, 2013, Ms. Amanat saw Mary Fitzgerald, MS, LPC at the Front Street Clinic for counseling. Ms. Fitzgerald reported that Ms. Amanat "expressed concern about forgetting daily things. She does not remember to flush the toilet which is embarrassing for her, or she will leave things on the stove. Basically, she [is] concerned with her memory." 67 In an undated letter, received by the Juneau SSA on January 13, 2014, Ms. Fitzgerald opined that based on a clinical presentation consistent with traits of dementia, "evidenced by cognitive deficits that include memory loss and her ability to learn and maintain new information," Ms. Amanat "is an individual who is unfit and unable to sustain employment as she struggles to organize her life on a daily basis." Ms. Fitzgerald noted that "therapeutic intervention with dementia is not successful." 68 On January 17, 2014, Ms. Brewster and Ms. Fitzgerald saw Ms. Amanat and assessed her with major depression, chronic pain syndrome and bilateral knee pain. Ms. Brewster noted that Ms. Amanat's "knees continue to be swollen" and that her right knee was more swollen than her left. She reported "gait is antalgic due to knee pain," but there were "[n]o other neuro changes." Ms. Brewster reported at the visit that Ms. Amanat 66 A.R. 400, 427–28. Gabapentin is an anticonvulsant or antiepileptic drug. It is also used to relieve nerve pain following shingles in adults. See https://www.webmd.com/drugs/2/drug-14208- 8217/gabapentin-oral/gabapentin-oral/details (last visited Jan. 2, 2018). 67 A.R. 408. 68 A.R. 399. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 18 of 36 6 indicated she was "not interested in any narcotic containing medication," and that "Flexeril helps with the pain and makes it more tolerable." 69 On February 5, 2014, Ms. Amanat received counseling services for depression from Ms. Fitzgerald. She noted that Ms. Amanat indicated that she "forgets she is cooking and leaves things on the stove. This causes her a lot of mental stress, which creates more depression."70 On May 2, 2014, Susan Hunter-Joerns, M.D. described her evaluation of Ms. Amanat on April 16, 2014 with the help of her translator and friend, Beheshteh Sadeghi. Dr. Hunter-Joerns noted the "general physical exam is unremarkable with normal blood pressures. [Ms. Amanat's] mental state at this exam is difficult to test due to educational and cultural differences. However, there are marked deficiencies found." The doctor reported that "[s]he cannot name the year or the months of the year even in her native language. She cannot count from 1-20 in her native language. She does not know the birthdates of her children. She cannot remember any of 3 items 5 minutes later. She cannot follow any 3-step commands even though she can do one item at a time. She cannot tell time with either a clock face or a digital number on her cell phone. The most informative piece of testing was when I asked her to name the Bahai religious holidays and she was only able to name 2 of the 5, and could not sequence them." Additionally, Dr. Hunter-Joerns observed that Ms. Amanat could not "copy a complex figure, but can reproduce a circle and a square individually." Dr. Hunter-Joerns noted the prescribed 69 A.R. 431. Flexeril is a prescription muscle relaxant. See https://www.webmd.com/drugs/2/drug- 11372/flexeril-oral/details (last visited on Dec. 12, 2017). 70 A.R. 412. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 19 of 36 6 Alprazolam "has helped [Ms. Amanat's] anxiety" and the "Sertraline. . . [has] helped sleep and depression but she remains totally disabled." 71 The doctor concluded that she was "not likely to benefit from any remedial education or training." 72 On May 20, 2014, Dr. Hunter-Joerns wrote a letter opining Ms. Amanat "totally disabled due to depression. . . anxiety. . . PTSD. . . and memory issues." She noted that "[t]he memory issues could be a worsening neurodegenerative dementia vs. a pseudo dementia, related to her severe depression, anxiety PTSD, and poor educational opportunities. While her depression, anxiety and PTSD have been treated with some improvement, there has been progression of the memory problems over the last ten years. She has not had money to pay for evaluation or treatment of the memory issues." Dr. Hunter-Joerns recommended further evaluation and testing based on three potential diagnoses, a treatable metabolic or toxic cause, pseudo dementia related to anxiety and/or depression, or a progressive neurodegenerative disorder such as Alzheimer's. But, she also noted that the testing would not likely lead to Ms. Amanat being employable. 73 71 Alprzolam is used to treat anxiety and panic disorders. Sertraline is used to treat depression, panic attacks, obsessive compulsive disorder, posttraumatic stress disorder, social anxiety disorder and a severe form of premenstrual syndrome. See https://www.webmd.com/drugs/2/drug-8171-7244/alprazolam-oral/alprazolam-oral/details and https://www.webmd.com/drugs/2/drug-1-8095/sertraline-oral/sertraline-oral/details (last visited on Dec. 12, 2017). 72 A.R. 440–41. 73 A.R. 438–39. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 20 of 36 6 State Agency Medical Consultant Opinions On October 30, 2012, George Carrion, M.D., a non-examining State agency medical consultant, concluded that Ms. Amanat could lift fifty pounds occasionally and twenty-five pounds frequently. He opined that she could stand or walk (with normal breaks) for about six hours in an eight-hour workday or sit (with normal breaks) for a total of about six hours in an eight-hour workday, and that she could balance or stoop frequently. 74 On September 12, 2013, Shirley Fraser, M.D., a non-examining State agency medical consultant, determined that Ms. Amanat was capable of medium work, including the occupations of "laundry worker I, drier operator, and kapok/cotton mach[ine] oper[ator]." Dr. Fraser opined that Ms. Amanat was capable of standing, sitting, or walking (with normal breaks) for about six hours in an eight-hour workday and able to lift fifty pounds occasionally and twenty-five pounds frequently. 75 Third Party Report On September 21, 2012, Afahg Dastpish, Ms. Amanat's niece, filled out a third party function report. Ms. Dastpish noted that when Ms. Amanat "walks she feels pain in her knees," that "she can't stand for a long time on her feet," and "she can't walk well." Ms. Dastpish reported that Ms. Amanat can walk fifty meters before needing to stop and rest and may resume walking again after ten minutes. She noted that Ms. Amanat's conditions affect lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, 74 A.R. 297–303. 75 A.R. 65–67. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 21 of 36 6 stair climbing, completing tasks, handling stress, handling changes in her routine, and concentration. Ms. Dastpish reported that her aunt "wakes up late in the morning because she has painkiller[s] for her sore knee" and that "she makes food with her daughter['s] help." Ms. Dastpish noted that Ms. Amanat helped her daughter with housework, but that she has problems with washing the dishes, vacuuming, and personal care, including dressing and showering. Ms. Dastpish stated that Ms. Amanat has to use a seat in the shower and for dressing and that Ms. Amanat's daughter helps her prepare simple meals. Ms. Dastpish reported that Ms. Amanat could do laundry and ironing and make food sometimes, but with help. She reported that Ms. Amanat doesn't do yardwork because "she feels pain in her knees." Ms. Dastpish reported that Ms. Amanat could drive and go out alone to shop for groceries. She noted that Ms. Amanat used a "wheelchairs [sic.] basket for shopping." She also reported that although Ms. Amanat cannot pay bills, count change, or handle a savings account or use a checkbook or money orders, she "has an account." Ms. Dastpish noted that Ms. Amanat can read and search the internet in her native language, talk on the phone with her daughter, drive, and go to church with help. Finally, she reported that Ms. Amanat has to be reminded to go places, can pay attention for no more than five minutes at a time, and will forget written and spoken instructions at times. 76 IV. DISCUSSION On appeal, Ms. Amanat first argues that the ALJ's physical RFC determination is not supported by substantial evidence in two respects: (1) "[i]t ignores a significant 76 A.R. 224–31. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 22 of 36 6 amount of the objective evidence on examinations of Amanat's knees," and (2) "the ALJ failed to provide legally sufficient reasons for rejecting Dr. McCandless' opinion." Second, Ms. Amanat argues that "[t]he ALJ failed to develop a full and fair record in denying Amanat's request for neuropsychiatric testing relating to her cognitive disorder." Third, she asserts that "[t]he ALJ's finding that Amanat waived her right to appear at her hearing is not supported by substantial evidence and is contrary to the evidence in the record showing good cause." 77 Ms. Amanat requests an immediate calculation of benefits or, alternatively, requests remand for further proceedings. 78 The Commissioner argues: (1) Ms. Amanat "was afforded a meaningful opportunity to be heard," (2) "the record was adequately developed to allow for proper evaluation of the evidence," and (3) "the residual functional capacity assessment was complete" because the "ALJ provided specific and legitimate reasons to discount the medical opinion of David McCandless, M.D." and the "ALJ provided clear and convincing reasons to discount [Ms. Amanat]'s subjective pain statements." The Commissioner requests that the Court affirm, or if the Court does not affirm, the Commissioner recommends that the appropriate remedy is remand for further proceedings. 79 77 Docket 12 at 1, Docket 15 at 1. 78 Id. at 21. 79 Docket 13 at 3–15. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 23 of 36 6 A. Dr. McCandless's Medical Opinion Dr. McCandless examined Ms. Amanat at the Front Street Clinic on December 9, 2013. In his treatment notes, Dr. McCandless opined that Ms. Amanat's knees would "prevent her from doing the kind of work she has done in the past as a healthcare worker where she would need to be on her feet much of the time." He also opined that he "would consider her disabled on the basis of her knees alone with regard to work she is skilled to do." 80 The ALJ found Dr. McCandless's opinion to be unsupported and gave it no weight. 81 1. Legal Standard "Regardless of its source, [the SSA] will evaluate every medical opinion [it] receive[s]." 82 Medical opinions come from three types of sources: those who treat the claimant, those who examine but do not treat the claimant, and those who neither examine nor treat the claimant. "As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant." 83 The opinion of an examining physician "is, in turn, entitled to greater weight than the opinion of a nonexamining physician." 84 An ALJ is responsible for determining credibility and 80 A.R. 400, 427–28. 81 A.R. 28. 82 20 C.F.R. § 416.927(c). Section 416.927 applies to SSI claims filed before March 27, 2017. Ms. Amanat initially filed her application for disability on September 10, 2012; accordingly, the Court will apply § 416.927 to her claim. 83 Garrison, 759 F.3d at 1012 (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). 84 Lester, 81 F.3d at 830. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 24 of 36 6 resolving conflicts and ambiguities in medical testimony. 85 But in the Ninth Circuit, "[t]o reject the uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence." 86 Even "if a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons supported by substantial evidence." 87 The factors the ALJ should consider when determining the weight to accord a medical opinion include: (1) the length of the treatment relationship and frequency of examinations; (2) the nature and extent of the treatment relationship, including whether the opinions were within the physician's area of specialization; (3) the supportability of the physician's opinion through relevant evidence; and (4) other relevant factors, such as the physician's degree of familiarity with the SSA's disability process and with other information in the record. 88 An ALJ must also take into consideration the functioning of a "treatment team" when determining what weight to give a medical source's opinion. 89 2. The ALJ's Analysis of Dr. McCandless's Opinions Here, Dr. McCandless is an examining source. His opinions regarding the extent Ms. Amanat's symptoms affect her ability to work are contradicted by the opinions of 85 Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). 86 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). 87 Id. at 675 (quoting Bayliss, 427 F.3d at 1216). 88 See 20 C.F.R. § 416.927(c). 89 Benton ex rel. v. Barnhart, 331 F.3d 1030, 1041 (9th Cir. 2003). Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 25 of 36 6 Drs. Carrion and Fraser, nonexamining State agency consultants. 90 Therefore, the ALJ must evaluate Dr. McCandless's opinion using the criteria set up by the § 416.927(c) factors and provide "specific and legitimate reasons supported by substantial evidence."91 From the Court's review of the ALJ's decision, the ALJ here applied only one of the §416.927(c) factors—frequency of examination. The ALJ noted that "Dr. McCandless's contact with the claimant was limited to one examination thus, he had no opportunity to observe the claimant's functioning over an extended period of time." 92 However, Dr. McCandless was part of a "treatment team" with Janna Brewster, ANP and Mary Fitzgerald, LPC at Front Street Clinic in Juneau, Alaska. Although he personally examined Ms. Amanat only one time, Ms. Brewster saw her four to five times for knee pain at the Front Street Clinic and referred Ms. Amanat for x-rays on October 24, 2013 and for MRIs on November 13, 2013. 93 The ALJ's determination that Dr. McCandless's opinion was unsupported because he only saw Ms. Amanat once is insufficient absent further explanation and not a legitimate stated reason for rejecting Dr. McCandless's opinion. Further, the ALJ failed to point to the overall medical record or provide other support for his conclusion. In fact, the ALJ failed to present accurate facts regarding Ms. Amanat's medical record in his decision. The ALJ noted that "[t]here is no indication that 90 A.R. 65–66, 297–303. Both consultants opined that Ms. Amanat could stand or walk (with normal breaks) for about six hours in an eight-hour workday or sit (with normal breaks) for a total of about six hours in an eight-hour workday, and that she can balance or stoop frequently. 91 20 C.F.R. § 416.927(c); Trevizo, 871 F.3d at 675 (quoting Bayliss, 427 F.3d at 1216). 92 A.R. 28. 93 A.R. 415–24, 431–32. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 26 of 36 6 [Ms. Amanat] has been prescribed narcotic pain medications."94 To the contrary, the record shows that Ms. Amanat repeatedly sought relief from knee pain from multiple doctors during the relevant period and received powerful medications for the pain, such as tramadol and Norco. 95 The most recent MRI performed on Ms. Amanat's left knee in November of 2013 showed "moderate to marked osteoarthritis in the medial compartment" and "moderate degenerative signal and thickening in the cruciate ligaments and in the proximal lateral collateral ligament from chronic stress or remote strains." The MRI of Ms. Amanat's right knee revealed a "large radial tear in the posterior horn root insertion medial meniscus with marked peripheral extrusion."96 The ALJ did not acknowledge the "moderate" nature of the "degenerative signal and thickening in the cruciate ligaments" or the "moderate to marked osteoarthritis in the medial compartment" of Ms. Amanat's left knee in his evaluation of the November 2013 MRI results. 97 Finally, while the ALJ is not bound by them, physicians may render opinions on the ultimate issue of disability. 98 The reasons for rejecting a doctor's credible opinion on disability are comparable to a medical opinion. 99 While Dr. McCandless's disability 94 A.R. 25. 95 A.R. 287–290, 292–94, 337–40, 356–57, 364–68, 379, 419, 427–28, 431. 96 A.R. 421–22, 424. 97 A.R. 24. 98 See 20 C.F.R. §416.927(d)(1); see also Montijo v. Sec. of Health and Human Serv., 729 F.2d 599, 601 (9th Cir. 1984); Reddick, 157 F.3d at 725 (9th Cir. 1998). 99 Montijo, 729 F.2d at 601; Reddick, 157 F.3d at 725. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 27 of 36 6 opinion is contradicted by the two State agency non-examining physicians, 100 his evaluation of Ms. Amanat is not otherwise contradicted by the bulk of the medical evidence regarding Ms. Amanat's knee impairments in the record. 101 The ALJ erred by not adequately addressing the § 416.927(c) factors. Moreover, the ALJ did not provide the requisite "specific and legitimate reasons" for rejecting Dr. McCandless's opinion. Therefore, the Court will reverse the ALJ's decision and remand on this issue. B. The ALJ's Credibility Finding Regarding Ms. Amanat's Knee Impairments The ALJ found Ms. Amanat's allegations regarding her knee impairments "not consistent with the examination findings, her willingness to follow treatment providers' recommendations, or the nature of treatment." 102 Ms. Amanat alleges that "the ALJ ignores the host of notations and evidence indicating that Amanat's financial inability to pay for treatment impacted her ability to receive all the care she might have otherwise needed." Further, Ms. Amanat argues that "rejecting Dr. McCandless's opinion and other evidence which suggested Amanat would not be able to perform medium work [is] 100 Drs. Carrion and Fraser found that Ms. Amanat was capable of "medium work" with certain limitations. A.R. 67, 297–303; see also SSR 83-10 (defining "medium work"). 101 One exception is Dr. McCandless's opinion that Ms. Amanat needs surgery on her knees. In August of 2012, Dr. Booker's treatment notes indicate that she "certainly is not a candidate for surgery," but do not explain the reason. Dr. Booker's notes also indicate that "she is unemployed and without insurance" and "should start with trying to get some sort of coverage through J.O. Wyatt or Medicaid to see if they wouldn't allow us to treat her and work her up a little better, perhaps get her comfortable so she would return to some level of activity." A.R. 350. 102 A.R. 24. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 28 of 36 6 harmful [error] because Amanat would have been entitled to a finding of disability if limited to even the lightest exertion level." 103 The Commissioner concedes that the ALJ erred in relying on minimal treatment and Ms. Amanat's failure to follow treatment advice as bases for discounting Ms. Amanat's statements, but contends that this error was harmless because the ALJ provided three "unchallenged reasons." 104 The remaining reasons the Commissioner contends the ALJ relies on are (1) "[Ms. Amanat]'s statements were inconsistent with physical examination findings," (2) "[Ms. Amanat has shown a] poor work history," and (3) "[Ms. Amanat] made inconsistent statements regarding information pertinent to her disability application."105 1. Legal Standard An ALJ's credibility assessment has two steps. 106 First, the ALJ determines whether the claimant has presented objective medical evidence of an underlying impairment that "could reasonably be expected to produce the pain or other symptoms alleged." 107 Second, "if the claimant has produced that evidence, and the ALJ has not determined that the claimant is malingering, the ALJ must provide 'specific, clear and convincing reasons for rejecting the claimant's testimony regarding the severity of the claimant's symptoms."108 103 Docket 12 at 14–15. 104 Docket 13 at 12. 105 Docket 13 at 11. 106 Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014). 107 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.1991) (en banc)). 108 Treichler, 775 F.3d at 1102 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996)). Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 29 of 36 6 In the first step, the claimant "need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom." 109 On this point, the ALJ held that Ms. Amanat's knee impairments were severe. 110 In the second step, the ALJ evaluates the intensity and persistence of a claimant's symptoms by considering "all of the available evidence, including [the claimant's] medical history, the medical signs and laboratory findings, and statements about how [the claimant's] symptoms affect her." 111 If a claimant produces objective medical evidence of an underlying impairment, the ALJ may reject testimony regarding the claimant's subjective pain or the intensity of symptoms, but must provide "specific, clear and convincing reasons for doing so." 112 The ALJ is required to "specifically identify the testimony from a claimant she or he finds not to be credible and explain what evidence undermines [that] testimony"; general findings are insufficient. 113 2. Ms. Amanat's Credibility The Court finds the ALJ did not provide specific, clear and convincing reasons for his adverse credibility determination. In fact, "[t]here is considerable evidence in the record that detracts from the ALJ's conclusions." 114 First, the ALJ's reasons for rejecting 109 Smolen, 80 F.3d at 1282. 110 A.R. 20. 111 20 C.F.R. § 416.929(a). 112 Smolen, 80 F.3d at 1281. 113 Treichler, 775 F.3d at 1102 (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). 114 Reddick, 157 F.3d at 723. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 30 of 36 6 Ms. Amanat's statements regarding her knee pain are not entirely accurate. In his determination, he noted a "lack of prescription pain medications." 115 But throughout the record, there is evidence that Ms. Amanat's treating doctors prescribed pain medications, including tramadol and Norco. 116 The ALJ then pointed to Ms. Amanat's "apparent unwillingness" to receive cortisone injections as a reason for rejecting Ms. Amanat's statements regarding her knees. 117 But in the record, Dr. Booker wrote, "[Ms. Amanat] would probably benefit from a steroid injection in the knee which is what we had suggested for her but she does not want to do that today, probably because of cost, but it is a little hard to know through the interpreter if that is the exact reason." 118 Ms. Amanat did not testify at her hearing before the ALJ and therefore could not clarify her exact reasons for refusing injections as treatment for her knee pain. 119 Additionally, the ALJ noted the conservative nature of Ms. Amanat's treatment, but did not inquire at any time into the reason she received minimal treatment. 120 The ALJ questioned Ms. Amanat's credibility generally because she "worked only briefly prior to the alleged disability onset date" and because she "has given inconsistent 115 A.R. 25. 116 A.R. 292–94, 287–90, 338–40, 364, 379. Ms. Amanat indicated at a visit to the Front Street Clinic on January 17, 2014 that she was "not interested in any narcotic containing medication" for pain. A.R. 431. 117 A.R. 25. 118 A.R. 350. 119 A.R. 39. 120 A.R. 25. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 31 of 36 6 statements regarding her work activity." 121 There are inconsistent statements in the record regarding the length of time Ms. Amanat spent working before her alleged disability onset date, but because Ms. Amanat did not appear at the hearing, she was not able to clarify any of her work history. Her attorney, Eric Vang, testified that she worked at meat packing plant in Texas for "I believe she said four or four-and-a-half [months]."122 Mr. Vang's Pre-Hearing Brief to the ALJ states that Ms. Amanat worked at the meat packing plant for approximately two months and a half months. 123 Ms. Amanat's translated letter to the ALJ indicated that she worked at a nursing facility for seniors in Iran after her husband died in 2004, but the letter does not clarify how long she worked at the facility. 124 Her disability report, generated by the SSA, indicated that Ms. Amanat did not work before or after the application date. 125 However, the ALJ did not inquire further as to the reasons for Ms. Amanat's inconsistent statements regarding her work history, nor did he clarify the amount of time Ms. Amanat worked in Iran. Given her inability to communicate in English, dependence on translators to be understood, and the fact that she did not testify at the March 19, 2015 hearing, the ALJ's finding that "information [Ms. Amanat] provides may not be reliable" due to inconsistent statements regarding her work activity or for "work[ing] only briefly 121 A.R. 27. 122 A.R. 46. 123 A.R. 269. 124 A.R. 275. Mr. Vang states in his Pre-Hearing Brief to the ALJ that Ms. Amanat worked for five years as a care assistant, beginning in approximately 2006. A.R. 269. 125 A.R. 221. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 32 of 36 6 prior to the alleged disability onset date" are not specific, clear, and convincing reasons for discounting Ms. Amanat's credibility. For the reasons set forth above, the ALJ did not provide specific, clear and convincing reasons for discounting Ms. Amanat's credibility. C. Remaining Issues The Court declines to analyze the ALJ's determination that Ms. Amanat did not have good cause for her failure to appear at the March 19, 2015 hearing or the ALJ's decision not to grant Ms. Amanat's request for a neuropsychological examination in light of the other reasons for remand. D. Scope of Remand The "ordinary remand rule" applies to disability cases. Under this rule, if "the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." 126 The court follows a three-step analysis to determine whether the case raises the "rare circumstances" that allow the court to exercise the discretion to remand for an award of benefits. "First, [the court] must conclude that 'the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion.'" 127 "Second, [the court] must conclude that 'the record has been fully developed and further administrative proceedings 126 Treichler, 775 F.3d at 1099 (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). 127 Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (quoting Garrison, 759 F.3d at 1020). Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 33 of 36 6 would serve no useful purpose.'" 128 "Where there is conflicting evidence, and not all essential factual issues have been resolved, a remand for an award of benefits is inappropriate."129 "Third, [the court] must conclude that 'if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.'" 130 But, "even if all three requirements are met, [the court] retain[s] 'flexibility' in determining the appropriate remedy" and "may remand on an open record for further proceedings 'when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.'" 131 Ms. Amanat argues that all three conditions are met in this case because: (1) "the evidence here is sufficient to show that Amanat should have been found disabled as a result of her physical impairments"; (2) "the ALJ failed to provide legally sufficient reasons for rejecting Dr. McCandless' opinion"; and (3) "the fact the Dr. McCandless' opinion indicates Amanat would not be able to stand or walk for anything over the light exertional level, acceptance of this opinion would necessitate a finding of disability based on application of the Medical-Vocational Rules at either the light or sedentary level." 132 The Commissioner asserts that the three factors have not been met. First, the Commissioner argues that the ALJ "provided legally sufficient reasons for discounting 128 Id. at 495 (quoting Garrison, 759 F.3d at 1020). 129 Treichler, 775 F.3d at 1101. 130 Id. (quoting Garrison, 759 F.3d at 1021). 131 Brown-Hunter, 806 F.3d at 495 (quoting Garrison, 759 F.3d at 1021). 132 Docket 12 at 16. Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 34 of 36 6 Dr. McCandless's opinion and Plaintiff's statements." Second, the Commissioner states that "there are outstanding issues that must be resolved before a determination of disability can be made" because "Dr. McCandless's opinion on walking. . . which Plaintiff seeks to credit as true, is inconsistent with the opinions of Drs. Fraser and Carrion, who both opined that Plaintiff could stand and/or walk for a total of six hours in an eight-hour workday." Finally, the Commissioner asserts that "even if Dr. McCandless's opinion on walking were credited-as-true, it would not require the ALJ to find Plaintiff disabled." 133 Here, the ALJ failed to provide legally sufficient reasons for rejecting Dr. McCandless's opinion and for rejecting Ms. Amanat's statements regarding her knee pain. Second, the Court finds that there are no outstanding issues and the record is complete as to Ms. Amanat's physical impairments. Third, if Dr. McCandless's opinion is credited as true, the ALJ would have been required to find Ms. Amanat to be disabled. Thus, all three conditions to credit-as-true have been satisfied. Further, the Court's evaluation of the case as a whole warrants an immediate calculation of benefits.134 Therefore, the Court remands for an immediate calculation of benefits. 133 Docket 13 at 13–15. 134 Leon v. Berryhill, 874 F.3d 1130, 1135 (9th Cir. 2017)("We have previously awarded benefits without further administrative proceedings only when the record clearly contradicted an ALJ's conclusory findings and no substantial evidence within the record supported the reasons provided by the ALJ for denial of benefits.") Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 35 of 36 6 ORDER The Court, having carefully reviewed the administrative record, finds that the ALJ's determinations are not free from legal error. Accordingly, IT IS ORDERED that Plaintiff's request for relief at Docket 1 is GRANTED. The Commissioner's final decision is VACATED and the case is REMANDED to the SSA for an immediate calculation of benefits. The Clerk of Court is directed to enter a final judgment in accordance with this Order. DATED this 13th day of March, 2018 at Anchorage, Alaska. /s/ Timothy M. Burgess TIMOTHY M. BURGESS UNITED STATES DISTRICT JUDGE Case No. 1:16-cv-00016-TMB, Amanat v. Berryhill Decision and Order Page 36 of 36 6

JUDGMENT; case is remanded to the SSA for an immediate calculation of benefits. Signed by Judge Timothy M. Burgess on 3/14/18.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA SEDIGHEH AMANAT, Case No. 1:16-cv-00016-TMB Plaintiff, vs. NANCY A. BERRYHILL, Acting JUDGMENT Commissioner of Social Security, IN A CIVIL CASE Defendant. JURY VERDICT. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict. X DECISION BY COURT. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED that the Commissioner's final decision is VACATED and the case is REMANDED to the SSA for an immediate calculation of benefits. APPROVED: s/TIMOTHY M. BURGESS TIMOTHY M. BURGESS United States District Judge March 14, 2018 LESLEY K. ALLEN Date Clerk of Court Jmt - TMB CV- rev. 9-21-16

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Description
1
11/18/2016
COMPLAINT against Carolyn W. Colvin, filed by Sedigheh Amanat.
1
Exhibit A
1 Attachment
2
11/18/2016
Civil Cover Sheet
3
11/18/2016
MOTION for Leave to Proceed in forma pauperis by Sedigheh Amanat.
4
11/18/2016
Unissued summons re Defendant C. Colvin
1
Unissued Summons re Defendant USAG
2
Unissued Summons re Defendant USAO
2 Attachments
5
11/29/2016
ORDER Directing Service and Response and GRANTING 3 Motion for Leave to Proceed in forma pauperis. Signed by Judge Timothy M. Burgess on 11/29/2016.
11/29/2016
Summons Issued as to All Defendants, U.S. Attorney and U.S. Attorney General (Text entry; no document attached.)
6
12/15/2016
SUMMONS Returned Executed by Sedigheh Amanat. Carolyn W. Colvin served on 12/13/2016, answer due 2/13/2017.
7
12/15/2016
NOTICE of Appearance by Richard L. Pomeroy on behalf of Carolyn W. Colvin
8
12/16/2016
SOCIAL SECURITY SCHEDULING ORDER: agency record due 60 days after def I/A. Opening brief due 30 days, answering brief due 30 days, reply brief due 14 days. Signed by Judge Timothy M. Burgess on 12/16/16.
12/16/2016
Docket Annotation: For the purpose of tracking the briefing as ordered at docket 8, when filing the Opening Brief the attorney shall file the document using the event Motion Miscellaneous Relief and text in the relief being sought. Responsive filings should be filed using the event Response in Opposition to Motion or Response to Motion (Non-Opposition). The reply, if any, shall be filed using the event Reply to Response to Motion. (Text entry; no document attached.)
02/09/2017
Docket Annotation: Nancy A. Berryhill, represented by Richard L. Pomeroy substituted for Carolyn W. Colvin pursuant to FRCvP 25(d)(1) (Text entry; no document attached.)
9
02/10/2017
NOTICE of Appearance by Michael Reid Tunick on behalf of Nancy A. Berryhill
10
02/10/2017
ANSWER to 1 Complaint by Nancy A. Berryhill.
11
02/10/2017
Notice of Lodging Administrative Record
1
001 Certification Page
2
002 Court Transcript Index
3
003 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable
4
004 Payment Documents and Decisions
5
005 Jurisdictional Documents and Notices
6
006 Non Disability Related Development
7
007 Disability Related Development
8
008 Medical Records
8 Attachments
12
03/13/2017
MOTION for Remand in a Social Security Appeal by Sedigheh Amanat.
13
04/12/2017
RESPONSE in Opposition re 12 MOTION for Remand in a Social Security Appeal filed by Nancy A. Berryhill.
14
04/20/2017
MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Howard D. Olinsky. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2318870.) by Sedigheh Amanat.
1
Certificate of Good Standing
1 Attachment
15
04/25/2017
REPLY to Response to Motion re 12 MOTION for Remand in a Social Security Appeal filed by Sedigheh Amanat.
16
04/26/2017
TMB TEXT ORDER GRANTING 14 Howard D. Olinsky's Motion for Leave to Appear Pro Hac Vice (Non-Resident). Pursuant to D. AK. L. R. 83.1(d), Howard D. Olinsky's Motion to Appear Pro Hac Vice without the association of local counsel is GRANTED. (JDS, CHAMBERS STAFF)
17
03/13/2018
DECISION AND ORDER: IT IS ORDERED that Plaintiff's request for relief at Docket [1] is GRANTED. The Commissioner's final decision is VACATED and the case is REMANDED to the SSA for an immediate calculation of benefits. The Clerk of Court is directed to enter a final judgment in accordance with this Order. Signed by Judge Timothy M. Burgess on 3/13/2018. (JDS, CHAMBERS STAFF)
18
03/14/2018
JUDGMENT; case is remanded to the SSA for an immediate calculation of benefits. Signed by Judge Timothy M. Burgess on 3/14/18.
19
06/11/2018
Attorney Fees
20
06/11/2018
Declaration
21
06/20/2018
Notice of Appearance
22
06/25/2018
Response to Motion (Non-Opposition)
23
07/03/2018
Order on Motion for Attorney Fees
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