Burton v. Colvin
Court Docket Sheet

Southern District of Alabama

2:2016-cv-00210 (alsd)

Social Security Brief filed by Defendant Carolyn W. Colvin.

Case 2:16-cv-00210-N Document 23 Filed 02/06/17 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION MARY DENISE BURTON,)) Plaintiff)) v.) 2:16-cv-00210-CG-N NANCY A. BERRYHILL,1) Acting Commissioner) of Social Security)) Defendant) MEMORANDUM IN SUPPORT OF THE COMMISSIONER’S DECISION I. ISSUE PRESENTED The issue is whether substantial evidence of record supports the Commissioner’s decision that Plaintiff, Mary Denise Burton, was not disabled within the meaning of the Social Security Act, as amended ("Act"). II. STATEMENT OF THE CASE On December 12, 2012, Plaintiff filed applications for a Period of Disability, Disability 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). 1 Case 2:16-cv-00210-N Document 23 Filed 02/06/17 Page 2 of 13 Insurance Benefits,2 ("DIB") and Supplemental Security Income3 ("SSI"), alleging disability since December 1, 2008, due to blood clots, retinitis pigmentosa, neuropathy, back problems, and arthritis (Tr. 23, 102). The applications were denied initially on March 29, 2013 (Tr. 23). A video hearing was held on September 23, 2014, before Administrative Law Judge Ricky V. South ("the ALJ") (Tr. 23, 42-97), and, on October 16, 2014, the ALJ issued a decision denying the claims (Tr. 23-38). On March 8, 2016, the Appeals Council denied Plaintiff's request for review (Tr. 1-3), thereby rendering the ALJ’s decision the final decision of the Commissioner. Plaintiff timely filed the instant action for judicial review, pursuant to 42 U.S.C. § 405(g). III. STATEMENT OF FACTS Plaintiff, age 50 at the time of the administrative hearing, is married, and lives in a mobile home with her husband and 14-year old daughter (Tr. 54-57). Plaintiff has a limited education, with past relevant work as a material handler (Tr. 36). Plaintiff alleges disability since December 1, 2008, due to blood clots, retinitis pigmentosa, neuropathy, back problems, and arthritis (Tr. 23, 102). 2 See, generally 20 C.F.R. §§ 404.315 and 404.320 (2016). Note: Unless otherwise indicated, all citations to the United States Code ("U.S.C.") and to the Code of Federal Regulations ("C.F.R.") are to the 2016 editions. 3 See, generally 20 C.F.R. § 416.901. Note: as discussed in Barnhart v. Thomas 540 U.S. 20, 24 (2003), the Act and implementing regulations regarding Disability Insurance Benefits (contained in Title II of the Act and 20 C.F.R. Pt. 404 of the regulations) and SSI (contained in Title XVI of the Act and 20 C.F.R. Pt. 416 of the regulations) are, for the most part, substantially identical. For convenience, the Commissioner will generally cite below to only the Title II statutes and regulations. 2 Case 2:16-cv-00210-N Document 23 Filed 02/06/17 Page 3 of 13 In addition to the facts discussed above, the Commissioner adopts the facts, medical and otherwise, as discussed in the ALJ decision (Tr. 23-38), and, further, as set forth in the argument below. IV. ARGUMENT Substantial evidence of record supports the Commissioner’s decision that Plaintiff was not disabled within the meaning of the Act. A. STATUTORY STANDARD OF DISABILITY For the Commissioner to find a claimant eligible for DIB, SSI, or both, the claimant must establish that she suffered from a disability within the meaning of the Act. The Act defines "disability" as an inability "to engage in any substantial gainful activity by reason of any medically determinable... 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 twelve months." 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a). Furthermore, disability under the Act means not merely that the individual is unable to perform her previous work, but cannot, considering [her] 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 [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work. 42 U.S.C. § 423(d)(2)(A); see also 20 C.F.R. §§ 404.1505(a), 404.1566(a). It is this stringent standard of disability to which the Court applies its deferential review, discussed below in the following subsection. B. STATUTORY STANDARD OF REVIEW This Court decides whether substantial evidence supports the Commissioner's factual 3 Case 2:16-cv-00210-N Document 23 Filed 02/06/17 Page 4 of 13 findings and whether the Commissioner applied the correct legal standards. See Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). Substantial evidence is defined as "more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." See Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1158 (11th Cir. 2004) (citations omitted). This Court "may not decide facts anew, reweigh the evidence, or substitute its own judgment for that of the [Commissioner]." See Dyer, 395 F.3d at 1210; Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (citations omitted). Even if this Court finds that the evidence preponderates against the Commissioner’s decision, it must affirm the Commissioner’s decision if substantial evidence supports the decision. See Crawford, 363 F.3d at 1158-59 (citations omitted); Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003). C. APPLICATION OF THE SEQUENTIAL EVALUATION Regulations promulgated by the Commissioner pursuant to her authority, 42 U.S.C. § 405(a), establish a five-step sequential evaluation process to be followed in a disability case. 20 C.F.R. § 404.1520. At step one, if the claimant is currently engaged in substantial gainful activity ("SGA"), the claim is denied. 20 C.F.R. §§ 404.1520(a)(4)(I) & (b); see 20 C.F.R. §§ 404.1510, 404.1572. In the instant case, the ALJ found that Plaintiff did not engage in SGA since her alleged onset of disability (Tr. 25). When SGA is not an issue, at step two, if the claimant does not have a severe impairment or combination of impairments significantly limiting her from performing basic work activities, 4 Case 2:16-cv-00210-N Document 23 Filed 02/06/17 Page 5 of 13 the claim is denied. See 20 C.F.R. §§ 404.1520(a)(4)(ii) & (c), 404.1521. In the instant case, the ALJ found that Plaintiff had the following severe impairments: history of multifocal choroiditis, peripapillary choroidal neovascularization, and status-post epimacular proliferation removal, resulting in chronic low vision in the left eye; status post deep vein thrombosis, left lower extremity; mild degenerative disc disease, lumbar spine; neuropathy; and obesity (Tr. 25). The ALJ specifically explained why Plaintiff’s alleged depression was a non-severe impairment (Tr. 26). If the claimant has a severe impairment, at step three, the claimant’s impairment is compared to those in the Listing of Impairments ("Listing"), 20 C.F.R. Part 404, Subpart P, App. 1; if the impairment meets or equals a Listing, disability is conclusively presumed. See 20 C.F.R. §§ 404.1520(a)(4)(iii) & (d), 404.1525, 404.1526. In the instant case, the ALJ found that Plaintiff’s impairments did not meet or equal a Listing (Tr. 27). If the claimant’s impairments do not meet or equal a Listing, at step four, the claimant’s "residual functional capacity" ("RFC") is assessed to determine if the claimant can perform her past relevant work ("PRW") despite the impairments; if so, the claim is denied. See 20 C.F.R. §§ 404.1520(a)(4)(iv), (e), & (f), 404.1545, 404.1560, 404.1565. In the instant case, the ALJ found that Plaintiff had the RFC to perform a reduced range of light work4 and that she was not able to return to her PRW as a material handler (Tr. 27, 36). At step five, the burden shifts to the Commissioner to show that the claimant, based on her age, education, work experience and RFC, can perform other substantial gainful work. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). See 20 C.F.R. §§ 404.1520(a)(4)(v) & (g), 4 The ALJ’s RFC finding will be discussed below in more detail. 5 Case 2:16-cv-00210-N Document 23 Filed 02/06/17 Page 6 of 13 404.1560(c), 404.1563, 404.1564, 404.1565, 404.1566. In the instant case, the ALJ found, based on vocational expert ("VE") testimony, that there were several types of jobs that Plaintiff was able to perform, existing in significant numbers in the national economy (Tr. 36-37, 86-88). Examples of such jobs are garment folder, cashier, and agricultural sorter (Tr. 37, 88).5 Such finding ended the sequential evaluation and, thus, the ALJ found that Plaintiff was not disabled within the meaning of the Act (Tr. 23, 37, 38). D. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S DECISION As discussed below, the Commissioner submits that the ALJ’s decision is supported by substantial evidence and should be affirmed. In the instant case, the ALJ found that Plaintiff was able to perform a reduced range of light work (Tr. 27). Specifically, Plaintiff could perform light work (lift/carry 20 pounds occasionally and 10 pounds frequently), with the following additional limitations/abilities: occasionally use both arms for pushing/pulling; sit/stand [option] every 45 minutes; occasionally stoop, balance, kneel, crouch, and crawl; never climb ladders, ropes, or scaffolds; avoid concentrated exposure to extreme cold, heat, wetness, humidity, vibrations, noise, fumes, odors, dust, and gases; avoid all exposure to hazardous, unprotected heights, dangerous machinery, and uneven surfaces; and would have 1-2 unplanned absences per month. In addition, Plaintiff would have the following non-exertional limitations: no more than simple, short instructions and simple work-related decisions, with few workplace changes (unskilled and low stress), no work at fixed production rate, and unable to work in close proximity to others – easily distracted (Tr. 5 The VE also testified that Plaintiff would be able to return to her PRW as a material handler as 6 Case 2:16-cv-00210-N Document 23 Filed 02/06/17 Page 7 of 13 27). At the hearing the ALJ presented the VE with a hypothetical question, which was consistent with the ALJ’s RFC finding (Tr. 86-87); in response, the VE testified that such an individual could perform Plaintiff’s PRW as it was actually performed, and the following additional jobs: garment folder, cashier, and agricultural sorter (Tr. 87-88). Assuming then, that substantial evidence supports the ALJ’s RFC finding, it follows that substantial evidence supports the ALJ’s finding that Plaintiff was not disabled, because she would be able to perform the above-listed jobs. Plaintiff presents two assignments of error, which the Commissioner will address below. First, Plaintiff argues that the ALJ’s RFC finding is not supported by substantial evidence, because the ALJ did not consider all of Plaintiff’s visual limitations as opined by Dr. McNamara (Plaintiff’s brief at 9-12). Second, Plaintiff argues that the ALJ’s RFC finding lacks support in the record (Plaintiff’s brief at 12-15). Because Plaintiff’s arguments are related, the Commissioner will address them together. The Commissioner submits, however, that the key issue in this case is one that was not raised by Plaintiff, but was addressed at length by the ALJ: the issue of Plaintiff’s credibility. As discussed below, the ALJ properly addressed Plaintiff’s credibility, and Plaintiff’s arguments are unavailing. 1.-2. Substantial Evidence Supports the ALJ’s RFC Finding Plaintiff’s two arguments, discussed in the previous paragraph, both stand for the proposition that substantial evidence does not support the ALJ’s RFC finding, and will, she actually performed it, although not as it is generally performed (Tr. 87). 7 Case 2:16-cv-00210-N Document 23 Filed 02/06/17 Page 8 of 13 therefore, be addressed together. First Plaintiff argues that the ALJ did not consider all of Plaintiff’s visual limitations as opined by Dr. McNamara (Plaintiff’s brief at 9-12). Specifically, Dr. McNamara reported that Plaintiff had limitations in both near and far acuity (Tr. 354; see Tr. 29-30, 354-55), and the VE testified that that such limitation would preclude performance of the jobs that would otherwise be available (Tr. 90-92). However, the weak link in Plaintiff’s argument is that, with correction, Plaintiff has perfect distance vision in her right eye (20/20), and almost perfect near vision in her right eye (20/25) (Tr. 354). Although Plaintiff’s corrected vision in her left eye is very limited, Dr. McNamara reported only one precaution: that Plaintiff avoid operating machinery at a near distance (Tr. 355). Indeed, Dr. McNamara opined that Plaintiff would have no difficulty with sitting, standing, walking, lifting, carrying, handling objects, hearing, speaking, and traveling (Tr. 30, 357). Although most of these activities would not appear to be directly related to Plaintiff’s visual limitations, it is significant that Dr. McNamara opined that Plaintiff would have no difficulty handling objects (Tr. 30, 357).6 In summary, although the VE appears to have testified that someone with limitation in near and far visual acuity would have no jobs available, that would not apply to Plaintiff who has very good corrected right-eye visual acuity, both near and far. This is further supported by Dr. 6 The ALJ’s second hypothetical mentioned that Plaintiff’s near and far acuity would be corrected with eye lenses (Tr. 90), so Plaintiff may argue that the VE’s response, which eliminated all jobs (Tr. 90-92), was even assuming use of corrective lenses. However, the VE’s response seems to have assumed difficulty seeing up close (near acuity) or at a distance (far acuity) (see Tr. 90-92), which would not be the case for someone whose vision is corrected with lenses. Indeed, common sense dictates that visual limitations would generally only be an issue if they could not be corrected with lenses (it is well-known, for example, that a person is eligible for a driver’s license if his or her corrected vision meets the minimum requirements). And, although it is true that Plaintiff only had good corrected vision in her right eye, which means she had no useful binocular vision (Tr. 355), Dr. McNamara, nevertheless, opined that Plaintiff had very few work-related limitations, as discussed above. 8 Case 2:16-cv-00210-N Document 23 Filed 02/06/17 Page 9 of 13 McNamara’s opinion, discussed above, that Plaintiff would have very few work limitations. Plaintiff’s first argument is, therefore, unavailing. Second, Plaintiff argues that the ALJ’s RFC finding [on which his hypothetical question to the VE was based] lacks support in the record (Plaintiff’s brief at 14-17). The Commissioner responds that the ALJ’s RFC finding was based on, among other things, a thorough consideration of Plaintiff’s subjective complaints or, stated otherwise, Plaintiff’s credibility.7 Indeed, as noted above, the Commissioner submits that Plaintiff’s credibility is the key issue in this case, and the ALJ’s thorough subjective symptom/credibility analysis provides substantial evidence to the ALJ’s RFC finding. 7 With regard to considering a claimant’s credibility, the controlling Social Security Ruling in this case is SSR 96-7p, 1996 WL 374186, because it was in effect at the time the ALJ made her decision. SSR 16-3p, 2016 WL 1020935, recently replaced SSR 96-7p, regarding evaluation of symptoms in disability claims, effective March 28, 2016. SSR 16-3p revises SSR 96-7p to more closely reflect the Commissioner’s regulatory language about symptom evaluation, which does not use the term "credibility." 20 C.F.R. § 416.929(c) (factors considered in evaluating symptoms). The Commissioner was concerned that the term "credibility" in some legal settings implied an evaluation of an individual’s character or truthfulness. SSR 16-3p, 2016 WL 1020935, at *2. The subjective symptom evaluation is not an examination of an individual’s character, but is an evidence-based analysis of the administrative record to determine whether the nature, intensity, frequency, or severity of an individual’s symptoms affect his ability to work. Id. SSR 16-3p clarifies that there is no change to the Commissioner’s underlying policy about evaluation of an individual’s symptoms, but removes the term "credibility" from the Commissioner’s Programs Operations Manual System ("POMS") in any discussion of the evaluation of symptoms in disability claims. Id. In POMS sections where the legal connation of "credibility" applies, the Commissioner will not remove the term. The Commissioner continues to apply the two-step process previously outlined in Social Security Ruling 96-7p: 1) consider whether there is an underlying medically determinable impairment that could reasonably be expected to produce an individual’s symptoms, such as pain, and 2) once an underlying impairment is established, evaluate the intensity and persistence of those symptoms to determine the extent the symptoms limit an individual’s ability to perform work-related activities. SSR 16-3p, 2016 WL 1020935, at *2-4. 9 Case 2:16-cv-00210-N Document 23 Filed 02/06/17 Page 10 of 13 Specifically, the ALJ noted that the record contains a Function Report – Adult, completed by Jessica Eubanks of the Disability Determination Services (Tr. 28, 234-41). Plaintiff reported, among other things, that she is able to, for the most part, care for her personal needs; prepares her own meals daily; when feeling okay, can cook complete meals; washes clothes; changes the bed linens with assistance; cleans the house on good days. Plaintiff is able to go out alone and drive a car; shops in stores for groceries and personal needs (goes to grocery store when someone can help her carry the groceries in); is able to pay bills, count change and handle bank accounts; does Facebook occasionally and watches TV; spends time with her daughter, mother, and husband; tries to go to church every Sunday; does not need to be reminded to go places and does not need someone to accompany her; has no problems getting along with other people; does not handle stress well, but can handle changes in routine okay (Tr. 28). Additional discussion of Plaintiff’s credibility is found throughout the ALJ’s decision (see Tr. 31-32, 35). Overall, the ALJ found that Plaintiff’s statements regarding her impairments are partially credible, but that the evidence of record reflects that Plaintiff’s functional limitations are not as significant and limiting as alleged (Tr. 35). Furthermore, Plaintiff testified that she could stand for "[m]aybe" 30-45 minutes, walk for "[m]aybe 30 minutes," and sit for "[m]aybe an hour" (Tr. 75-76). This is consistent with the ALJ’s RFC finding, which allowed for a sit/stand option every 45 minutes (Tr. 27). The Commissioner submits that, in formulating his RFC finding, the ALJ properly considered, among other things, Plaintiff’s credibility and testimony, and that the ALJ’s RFC finding is supported by substantial evidence. Plaintiff’s argument to the contrary is unavailing. 10 Case 2:16-cv-00210-N Document 23 Filed 02/06/17 Page 11 of 13 For the reasons discussed by the ALJ (Tr. 23-38), and for the reasons discussed above, the Commissioner submits that the ALJ’s decision is supported by substantial evidence and contains no legal error; it should, therefore, be affirmed. 11 Case 2:16-cv-00210-N Document 23 Filed 02/06/17 Page 12 of 13 V. CONCLUSION The Commissioner respectfully submits that her decision is supported by substantial evidence and should be affirmed. Respectfully submitted, KENYEN R. BROWN United States Attorney By: _______/s/______________ Daniel Balsam Special Assistant United States Attorney Social Security Administration Office of the General Counsel 6401 Security Boulevard, Room 617 Baltimore, MD 21235 (410) 966-4215 daniel.balsam@ssa.gov 12 Case 2:16-cv-00210-N Document 23 Filed 02/06/17 Page 13 of 13 CERTIFICATE OF SERVICE I hereby certify that on February 6, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will automatically notify Plaintiff’s counsel, Howard D. Olinsky./s/Daniel Balsam DANIEL BALSAM Attorney for Defendant Special Assistant United States Attorney Social Security Administration Office of the General Counsel Altmeyer Building, Room 617 6401 Security Boulevard Baltimore, MD 21235-6401 Telephone: (410) 966-4215 Fax: (410) 597-0137 Email: daniel.balsam@ssa.gov 13

Order Setting Social Security Hearing: Social Security Hearing set for 3/9/2017 11:00 AM in US Courthouse, Courtroom 3B, 113 St. Joseph Street, Mobile, AL 36602 Magistrate Judge Katherine P. Nelson. Signed by Magistrate Judge Katherine P. Nelson on 2/7/2017.

Case 2:16-cv-00210-N Document 24 Filed 02/07/17 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION MARY DENISE BURTON,) Plaintiff,)) v.) CIVIL ACTION NO. 16-00210-N) NANCY A. BERRYHILL, Acting) Commissioner of Social Security,1) Defendant.) ORDER SETTING ORAL ARGUMENT Briefing being complete (see Docs. 19, 20, 23), it is ORDERED, in accordance with paragraph 6 of the Social Security Scheduling Order (Doc. 8), that this action is set for oral argument before the undersigned Magistrate Judge on Thursday, March 9, 2017, beginning at 11:00 a.m. (Central Standard Time) in Courtroom 3B of the United States Courthouse at 113 St. Joseph Street, Mobile, Alabama 36602. The provisions of paragraph 7 of the scheduling order shall control the course of oral argument. (See id. ("At oral argument, each party will be given fifteen (15) minutes to present arguments to the Court. Additional time will be permitted for good cause shown. Counsel for plaintiff shall set forth the procedural history of the action and specific errors about which plaintiff complains. Counsel for defendant will then have an opportunity to set forth reasons why the Commissioner’s decision should be affirmed.")). If either party wishes to waive oral argument, allowing the action to be 1 On notice of the Commissioner (see Doc. 23 at 1 n.1), Nancy A. Berryhill is substituted for Carolyn W. Colvin as the Acting Commissioner of Social Security under Federal Rule of Civil Procedure 25(d). Case 2:16-cv-00210-N Document 24 Filed 02/07/17 Page 2 of 2 decided on the pleadings and briefs, that party shall obtain consent from the opposing party and file a joint or unopposed motion to waive oral argument. If the parties anticipate requesting that oral argument be waived, they are now cautioned that, although the Court may be able to resolve some appeals without the benefit of oral argument, oral arguments in Social Security appeals are not waived as a matter of course. It is, moreover, the undersigned’s practice to utilize oral arguments to frame the issues—that is, flesh out the true issues—before the Court. And, in preparing for oral arguments, the undersigned not only reviews a plaintiff’s arguments on appeal, but also endeavors to consider other reasons why an ALJ’s decision may not be supported by substantial evidence—reasons that may not be apparent from the parties’ filings. Cf. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986) ("In determining whether substantial evidence exists, [a court] must view the record as a whole...." (emphasis added)). Oral argument provides, therefore, an opportunity for the parties to address all concerns the Court may have (and not be blindsided by an issue not addressed by the parties, but which the Court identifies as a reason to affirm or remand). DONE and ORDERED this the 7th day of February 2017./s/Katherine P. Nelson KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

Joint Motion for Waiver of Oral Argument by Mary Denise Burton.

Case 2:16-cv-00210-N Document 25 Filed 02/07/17 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ALABAMA – NORTHERN DIVISION MARY DENISE BURTON, Plaintiff, CIVIL ACTION NO. 2:16-cv-00210-N-v-NANCY A. BERRYHILL,1 ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------JOINT MOTION TO WAIVE ORAL ARGUMENT OR ALLOW ALL COUNSEL TO APPEAR TELEPHONICALLY Plaintiff, by and through her counsel, Mr. Howard Olinsky of Olinsky Law Group, and the Defendant, through her counsel, Mr. Daniel Balsam of the United States Attorney’s Office, informs the Court that the parties do not know of any further issues that need to be briefed, and jointly move this Court to waive the oral argument scheduled for March 9, 2017, at 11:00am. Defendant’s counsel has given the undersigned consent to electronically file this joint motion. Respectfully submitted, 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). 1 Case 2:16-cv-00210-N Document 25 Filed 02/07/17 Page 2 of 3/s/Howard Olinsky/s/Daniel Balsam Olinsky Law Group Special Assistant United States Attorney One Park Place Social Security Administration 300 South State Street, Suite 420 Office of the General Counsel Syracuse, New York 13202 6401 Security Boulevard E-mail: holinsky@windisability.com Altmeyer Building, Room 617 Tel: (863) 648-2958 Baltimore, Maryland 21235 Fax: (863) 619-8901 Email: daniel.balsam@ssa.gov Attorney for Plaintiff Tel: (410) 966-4215 Fax: (410) 597-0137 Attorney for Defendant 2 Case 2:16-cv-00210-N Document 25 Filed 02/07/17 Page 3 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ALABAMA – NORTHERN DIVISION MARY DENISE BURTON, Plaintiff, CIVIL ACTION NO. 2:16-cv-00210-N-v-NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 7th day of February, 2017, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF, which will send notification of such filing to any counsel of record./s/Howard Olinsky Howard Olinsky, Esq. Attorney for Plaintiff 3

MEMORANDUM OPINION AND ORDER that the Commissioner's decision denying plaintiff's disability is REVERSED and REMANDED under sentence four of 42 U.S.C. � 405(g) for further proceedings. Signed by Magistrate Judge Katherine P. Nelson on 5/10/2017.

Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 1 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION MARY DENISE BURTON,) Plaintiff,)) v.) CIVIL ACTION NO. 16-00210-N) NANCY A. BERRYHILL, Acting) Commissioner of Social Security,) Defendant.) MEMORANDUM OPINION AND ORDER Plaintiff Mary Denise Burton brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision of the Defendant Commissioner of Social Security ("the Commissioner") denying her applications for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401, et seq., and for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq. With the consent of the parties, the Court has designated the undersigned Magistrate Judge to conduct all proceedings and order the entry of judgment in this civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See Docs. 17, 18). Upon consideration of the parties’ briefs (Docs. 19, 20, 23) and those portions of the administrative record (Doc. 16) (hereinafter cited as "(R. [page number(s) in lower-right corner of transcript])") relevant to the issues raised,1 the Court finds 1With the Court’s consent, the parties jointly waived the opportunity for oral argument. (See Docs. 25, 26). Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 2 of 20 that the Commissioner’s final decision is due to be REVERSED and REMANDED under sentence four of § 405(g). I. Background On December 12, 2012, Burton filed applications for a period of disability, DIB, and SSI with the Social Security Administration ("SSA"), alleging disability beginning December 1, 2008.2 After her applications were initially denied, Burton requested a hearing before an Administrative Law Judge ("ALJ") with the SSA’s Office of Disability Adjudication and Review, and a hearing was held on September 23, 2014. On October 16, 2014, the ALJ issued an unfavorable decision on Burton’s applications, finding her "not disabled" under the Social Security Act and thus not entitled to benefits. (See R. 20 – 38). The Commissioner’s decision on Burton’s applications became final when the Appeals Council for the Office of Disability Adjudication and Review denied Burton’s request for review of the ALJ’s decision on March 8, 2016. (R. 1 – 5). On May 12, 2016, Burton filed this action under §§ 405(g) and 1383(c)(3) for judicial review of the Commissioner’s final decision. See (Doc. 1); 42 U.S.C. § 1383(c)(3) ("The final determination of the Commissioner of 2 DIB provides income to individuals who are forced into involuntary, premature retirement, provided they are both insured and disabled, regardless of indigence. See 42 U.S.C. § 423(a). SSI is a general public assistance measure providing an additional resource to the aged, blind, and disabled to assure that their income does not fall below the poverty line. Eligibility for SSI is based upon proof of indigence and disability. See 42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). "For DIB claims, a claimant is eligible for benefits where she demonstrates disability on or before the last date for which she were insured. 42 U.S.C. § 423(a)(1)(A) (2005). For SSI claims, a claimant becomes eligible in the first month where she is both disabled and has an SSI application on file. 20 C.F.R. § 416.202– 03 (2005)." Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam). Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 3 of 20 Social Security after a hearing [for SSI benefits] shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner’s final determinations under section 405 of this title."); 42 U.S.C. § 405(g) ("Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow."); Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) ("The settled law of this Circuit is that a court may review, under sentence four of section 405(g), a denial of review by the Appeals Council."). II. Standards of Review "In Social Security appeals, [the Court] must determine whether the Commissioner’s decision is' "supported by substantial evidence and based on proper legal standards. Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion."' " Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam) (internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997))). However, the Court "'may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].’ " Id. (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 4 of 20 original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))). "‘Even if the evidence preponderates against the [Commissioner]’s factual findings, [the Court] must affirm if the decision reached is supported by substantial evidence.’ " Ingram, 496 F.3d at 1260 (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)). "Yet, within this narrowly circumscribed role, [courts] do not act as automatons. [The Court] must scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence[.]" Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) ("We are neither to conduct a de novo proceeding, nor to rubber stamp the administrative decisions that come before us. Rather, our function is to ensure that the decision was based on a reasonable and consistently applied standard, and was carefully considered in light of all the relevant facts."). "In determining whether substantial evidence exists, [a court] must…tak[e] into account evidence favorable as well as unfavorable to the [Commissioner’s] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). However, the "substantial evidence" "standard of review applies only to findings of fact. No similar presumption of validity attaches to the [Commissioner]’s conclusions of law, including determination of the proper standards to be applied in reviewing claims." MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (quotation omitted). Accord, e.g., Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982) ("Our standard of review for appeals from the Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 5 of 20 administrative denials of Social Security benefits dictates that'(t)he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive....’ 42 U.S.C.A. s 405(g) … As is plain from the statutory language, this deferential standard of review is applicable only to findings of fact made by the Secretary, and it is well established that no similar presumption of validity attaches to the Secretary’s conclusions of law, including determination of the proper standards to be applied in reviewing claims." (some quotation marks omitted)). This Court "conduct[s]'an exacting examination’ of these factors." Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam) (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)). "‘The [Commissioner]’s failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal.’" Ingram, 496 F.3d at 1260 (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)). Accord Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). In sum, courts "review the Commissioner’s factual findings with deference and the Commissioner’s legal conclusions with close scrutiny." Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam) ("In Social Security appeals, we review de novo the legal principles upon which the Commissioner's decision is based. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). However, we review the resulting decision only to determine whether it is supported by substantial evidence. Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 6 of 20 Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004)."). Eligibility for DIB and SSI requires that the claimant be disabled. 42 U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2). A claimant is disabled if she is unable "to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment... which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Thornton v. Comm’r, Soc. Sec. Admin., 597 F. App’x 604, 609 (11th Cir. 2015) (per curiam) (unpublished).3 The Social Security Regulations outline a five-step, sequential evaluation process used to determine whether a claimant is disabled: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a residual functional capacity ("RFC") assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's RFC, age, education, and work experience. Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); Phillips, 357 F.3d at 1237-39).4 "These regulations place a very heavy burden on the claimant to demonstrate both a qualifying disability and an inability to perform past relevant work." Moore, 405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)). 3In this Circuit, "[u]npublished opinions are not considered binding precedent, but they may be cited as persuasive authority." 11th Cir. R. 36-2. See also Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) ("Cases printed in the Federal Appendix are cited as persuasive authority."). 4 The Court will hereinafter use "Step One," "Step Two," etc. when referencing individual steps of this five-step sequential evaluation. Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 7 of 20 "In determining whether the claimant has satisfied this initial burden, the examiner must consider four factors: (1) objective medical facts or clinical findings; (2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the claimant’s age, education, and work history." Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983) (per curiam)). "These factors must be considered both singly and in combination. Presence or absence of a single factor is not, in itself, conclusive." Bloodsworth, 703 F.2d at 1240 (citations omitted). If, in Steps One through Four of the five-step evaluation, a claimant proves that he or she has a qualifying disability and cannot do his or her past relevant work, it then becomes the Commissioner’s burden, at Step Five, to prove that the claimant is capable—given his or her age, education, and work history—of engaging in another kind of substantial gainful employment that exists in the national economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985). Finally, although the "claimant bears the burden of demonstrating the inability to return to [his or] her past relevant work, the Commissioner of Social Security has an obligation to develop a full and fair record." Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987). See also Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam) ("It is well-established that the ALJ has a basic duty to develop a full and fair record. Nevertheless, the claimant bears the burden of proving that he is disabled, and, consequently, he is responsible for producing evidence in support of his claim." (citations omitted)). Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 8 of 20 "This is an onerous task, as the ALJ must scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts. In determining whether a claimant is disabled, the ALJ must consider the evidence as a whole." Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and quotation omitted). Where, as here, the ALJ denied benefits and the Appeals Council denied review of that decision, the Court "review[s] the ALJ’s decision as the Commissioner’s final decision." Doughty, 245 F.3d at 1278. "[W]hen the [Appeals Council] has denied review, [the Court] will look only to the evidence actually presented to the ALJ in determining whether the ALJ’s decision is supported by substantial evidence." Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998). If the applicant attacks only the ALJ’s decision, the Court may not consider evidence that was presented to the Appeals Council but not to the ALJ. See id. at 1324. III. Analysis At Step One, the ALJ determined that Burton had not engaged in substantial gainful activity since the alleged disability onset date, December 1, 2008. (R. 25). At Step Two, the ALJ determined that Burton had the following severe impairments: history of multifocal choroiditis, peripapillary choroidal neovascularization, and status-post epimacular proliferation removal, resulting in chronic low vision left eye; status post deep vein thrombosis left lower extremity; mild degenerative disc disease lumbar spine; neuropathy; and obesity. (R. 25 – 27). At Step Three, the ALJ found that Burton did not have an impairment or Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 9 of 20 combination of impairments that meets or equals the severity of one of the specified impairments in the relevant Listing of Impairments. (R. 27). At Step Four, the ALJ must assess: (1) the claimant's residual functional capacity ("RFC"); and (2) the claimant's ability to return to her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). As for the claimant's RFC, the regulations define RFC as that which an individual is still able to do despite the limitations caused by his or her impairments. 20 C.F.R. § 404.1545(a). Moreover, the ALJ will "assess and make a finding about [the claimant's] residual functional capacity based on all the relevant medical and other evidence" in the case. 20 C.F.R. § 404.1520(e). Furthermore, the RFC determination is used both to determine whether the claimant: (1) can return to her past relevant work under the fourth step; and (2) can adjust to other work under the fifth step…20 C.F.R. § 404.1520(e). If the claimant can return to her past relevant work, the ALJ will conclude that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv) & (f). If the claimant cannot return to her past relevant work, the ALJ moves on to step five. In determining whether [a claimant] can return to her past relevant work, the ALJ must determine the claimant's RFC using all relevant medical and other evidence in the case. 20 C.F.R. § 404.1520(e). That is, the ALJ must determine if the claimant is limited to a particular work level. See 20 C.F.R. § 404.1567. Once the ALJ assesses the claimant’s RFC and determines that the claimant cannot return to her prior relevant work, the ALJ moves on to the fifth, and final, step. Phillips, 357 F.3d at 1238-39 (footnote omitted). The ALJ determined that Burton had the RFC "to perform light work as defined in 20 CFR 404.1567(b) and 416.967b[5] except with the following 5 "To determine the physical exertion requirements of different types of employment in the national economy, the Commissioner classifies jobs as sedentary, light, medium, heavy, and very heavy. These terms are all defined in the regulations … Each classification … has its own set of criteria." Phillips, 357 F.3d at 1239 n.4. "Light work involves lifting no more than 20 pounds at a time with frequent lifting Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 10 of 20 limitations: lift and/or carry 20 pounds occasionally and 10 pounds frequently; occasionally use both arms for pushing/pulling; sit/stand every 45 minutes; occasionally stoop, balance, kneel, crouch, and crawl; never climb ladder, ropes or scaffolds; avoid concentrated exposure to extreme cold, heat, wetness, humidity, vibrations, noise, fumes, odors, dust, and gases; avoid all exposure to hazardous, unprotected heights, dangerous machinery, and uneven surfaces; and would have 1-2 unplanned absences per month. [Burton] would have the following non-exertional limitations: no more than simple, short instructions and simple work-related decisions with few work place changes (unskilled and low stress), no work at fixed production rate, and unable to work in close proximity to others – easily distracted (concentrate)." (R. 27 – 36). Based on this RFC, the ALJ determined that Burton was unable to perform any past relevant work. (R. 36). At Step Five, the ALJ, after taking testimony from a vocational expert, found that there exist significant numbers of jobs in the national economy that Burton can perform given her RFC, age, education, and work experience. (R. 36 – 37). Thus, the ALJ found that Burton was not disabled under the Social Security Act. (R. 37 – 38). or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [the claimant] must have the ability to do substantially all of these activities. If someone can do light work, [the Commissioner] determine[s] that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time." 20 C.F.R. §§ 404.1567(b), 416.967(b). Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 11 of 20 Burton argues that the ALJ reversibly erred in failing to fully account for the medial opinion of consultative examining optometrist Dr. Craig McNamara. The ALJ summarized Dr. McNamara’s notes and opinions as follows: On March 27, 2013, Craig Richard[] McNamara, OD, performed a consultative eye examination with visual fields. Visual Acuity for Distance without glasses, Right 20/60+2 and LEFT Hand motion at 3 feet, and with best correction, RIGHT 20/20 and LEFT No Improvement. Reading or Close Work without glasses, RIGHT 20/400 and LEFT Hand motion at 3 feet, and with best correction RIGHT 20/25 and LEFT No Improvement. Visual field OD was normal and OS unable to evaluate. Muscle function was normal. The claimant did not have useful binocular vision in all directions for distance or near due to extremely reduced vision LEFT eye. Depth perception was not present. Color perception was normal. Fundus examination – Normal OD; OS – optic atrophy, Peripapillary choroidal atrophy, and diffuse choroidal atrophy. Dr. McNamara reported the claimant’s eye pathology as follows: Multifocal choroiditis, peripapillary neovascularization. The claimant’s eye condition was stable. Prognosis was guarded. No treatment was recommended. She was to avoid operating machinery at near distance. The patient’s behavior and mobility were considered normal. Dr. McNamara reported his diagnoses as: HIAIP; Pseudophakia OS and OS/Optic atrophy/Choroidal atrophy. Dr. McNamara was asked to provide a statement, based on his medical findings, expressing his opinion about the claimant’s ability, despite the impairments, to do work-related activities such as sitting, standing, walking, lifting, carrying, handling objects, hearing, speaking, and traveling. Dr. McNamara stated, "I see no reason the patient should have any difficulties with the above listed activities." (Exhibit B7F [R. 353 – 363]). (R. 29 – 30). This summary was repeated later in the ALJ’s decision, absent the observation "she was to avoid operating machinery at near distance," and was followed by the observation that "[t]he medical evidence does not reveal a visual impairment that would be disabling or that would prevent work at the above stated residual functional capacity." (R. 33). Later still, the ALJ assigned "significant Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 12 of 20 weight to Dr. McNamara’s opinion regarding the claimant’s visual functional abilities[,]" explaining: His opinion is well supported by his own clinical examinations and testing and it is generally consistent with the record as a whole. Dr. McNamara stated that the claimant’s eye condition was stable, her prognosis was guarded, and no treatment was recommended. The only restriction he noted was that she was to avoid operating machinery at near distance. Dr. McNamara stated that he saw no reason the claimant should have any difficulties with sitting, standing, walking, lifting, carrying, handling objects, hearing, speaking, and traveling. (R. 36). The ALJ further observed that "the record does not contain any opinions from treating or examining physicians indicating that the claimant is disabled or even has limitations greater than those determined in this decision." (R. 36). At Step Five, the ALJ’s first hypothetical question to the vocational expert (VE) asked whether jobs exist in the national economy for an individual with Burton’s age, education, work experience, and RFC. 6 The VE responded that such 6 At Step Five, "the ALJ considers the claimant’s RFC, age, education, and work experience to determine whether the claimant'can make an adjustment to other work.’ 20 C.F.R. § 404.1520(a)(4)(v). Essentially, the ALJ must determine if there is other work available in significant numbers in the national economy that the claimant has the ability to perform. If the claimant can make the adjustment to other work, the ALJ will determine that the claimant is not disabled. If the claimant cannot make the adjustment to other work, the ALJ will determine that the claimant is disabled." Phillips, 357 F.3d at 1239 (footnote omitted). "There are two avenues by which the ALJ may determine whether the claimant has the ability to adjust to other work in the national economy. The first is by applying the Medical Vocational Guidelines … The other means by which the ALJ may determine whether the claimant has the ability to adjust to other work in the national economy is by the use of a vocational expert. A vocational expert is an expert on the kinds of jobs an individual can perform based on his or her capacity and impairments. []When the ALJ uses a vocational expert, the ALJ will pose hypothetical question(s) to the vocational expert to establish whether someone with the limitations that the ALJ has previously determined that the claimant has will be able to secure employment in the national economy." Phillips, 357 F.3d at 1239– Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 13 of 20 an individual would be unable to perform Burton’s past work but could perform the jobs of garment folder, general cashier, and agricultural sorter, all of which were classified as "light, unskilled." (R. 85 – 88). The ALJ relied on the VE’s answer to the first hypothetical in finding that Burton could perform work that exists in significant numbers in the national economy at Step Five of his decision. (See R. 36). After a second hypothetical not material to the present issue, the ALJ and the VE engaged in the following exchange: ALJ: Okay. Now, Williams, I’d like you to just go back to that first hypothetical. And with that first hypothetical in mind, do you need it again--VE: I have them--ALJ: You have them there [phonetic]. I would like to add another restriction from a vision standpoint which would be near and far acuity would be affected but corrected with eye lenses. And, you know, would there be any problem with someone who would be--who would have a restriction placed on bright lighting in excess of 60 watts? Would there be any problem with finding jobs such as that? VE: No sir. Not with that [phonetic]. ALJ: I was just curious. VE: Not to say it doesn’t happen, but--ALJ: Okay. Would the jobs that you gave me that first hypo if I added back in near and far acuity? VE: Near acuity is a problem with unskilled light work. So that would--that would certainly lower the job [INAUDIBLE]--ALJ: There’d still be jobs, just a lower number. 40. Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 14 of 20 VE: Correct. I’d have to look at the rest of the hypothetical [INAUDIBLE]. ALJ: And you--VE: But just based on--no, I’ve got it written down. I’m just saying just based on near acuity there would be other jobs whether--but what I wanted to clear up before I started, the 60 watts, we’re not considering that part? That was just something else? ALJ: No. No. No. VE: Okay. ALJ: Just--that was just sort of a sort of a side job that they had [phonetic]. VE: That was just--okay. All right. So based on--so the near acuity would be--how it’s listed in the raw material is constant, frequent. ALJ: Frequent. VE: Frequent near acuity. And did you say no depth perception or did you--ALJ: No. That’s the only thing restricting the vision. VE: Is near acuity? ALJ: And far acuity. VE: And far acuity also frequent. All right. [INAUDIBLE] ALJ: Sure. VE: Garment--ALJ: I guess that’s my question is would these three jobs [INAUDIBLE] garment folder? VE: Garment folder requires frequent near acuity. Far acuity is not involved in that [phonetic]. Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 15 of 20 ALJ: Cashier. VE: Cashier, general-near acuity is frequent. These are based on minor vision in the workplace [phonetic]. Do you want the third one? ALJ: Agricultural sorter. VE: Near acuity--so all of the jobs I gave--ALJ: And would there be other jobs? VE: [INAUDIBLE] ALJ: And I would suspect that the previous work would be out as well? VE: Correct. Those, well – it requires constant near acuity. I did find a few jobs that did not require those things. But those jobs all require---would not allow sit/stand option. So I would have to say no work. ALJ: All right… (R. 90 – 92). While neither the testimony nor the transcript is a model of clarity, it appears, as Burton suggests in her brief, that the ALJ posed a third hypothetical to the VE identical to the first hypothetical except that it included additional limitations for near and far vision acuity, limitations which Dr. McNamara’s medical opinion assigned Burton. (See R. 29 – 30 ("The claimant did not have useful binocular vision in all directions for distance or near due to extremely reduced vision LEFT eye.")). As Burton correctly points out, at Step Four the ALJ expressly acknowledged Dr. McNamara’s finding that Burton "did not have useful binocular vision in all directions for distance or near due to extremely reduced vision LEFT eye," and none of the other medical records discussed by the ALJ concerning Burton’s eye impairments (i.e. those of Drs. Song and Parma) contradict Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 16 of 20 Dr. McNamara on this point. The VE answered that, with the addition of these limitations, he "would have to say no work" for Burton. (R. 92).7 The ALJ’s decision makes no mention of this third hypothetical at Step Five. (See R. 36 – 37). An ALJ is "not required to include findings in [a VE] hypothetical that the ALJ had properly rejected as unsupported." Crawford, 363 F.3d at 1161. Here, however, the ALJ assigned "significant weight to Dr. McNamara’s opinion regarding [Burton’s visual functional abilities," without expressly addressing, much less discrediting, Dr. McNamara’s finding that Burton "did not have useful binocular vision in all directions for distance or near due to extremely reduced vision LEFT eye."8 (R. 29 – 30). Indeed, the ALJ made a point of including these limitations in his third hypothetical to the VE, with the VE responding that Burton would be unable to find other work. Thus, the ALJ was faced with a clear conflict between the VE’s testimony and his own determination at Step Four that the "medical evidence does not reveal a visual impairment that would be disabling or that would prevent work" (R. 33), a conflict which the ALJ failed to acknowledge, 7 The Commissioner does not contest Burton’s characterization of the VE’s testimony in her response brief. Moreover, given that it becomes the Commissioner’s burden at Step Five to prove that the claimant is capable of engaging in another kind of substantial gainful employment that exists in the national economy, see Jones v. Apfel, 190 F.3d at 1228, it was the ALJ’s burden to ensure that the VE gave clear testimony to support the Step Five burden, and ambiguities in the transcript are construed against the Commissioner. 8The Commissioner claims "the weak link in Plaintiff’s argument is that, with correction, Plaintiff has perfect distance vision in her right eye (20/20), and almost perfect near vision in her right eye (20/25)" (Doc. 23 at 8 (citing R. 354)). The undersigned finds this argument unpersuasive, given the fact that Dr. McNamara expressly identified Burton’s reduced left eye vision as the cause of her near and far acuity limitations. Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 17 of 20 much less resolve, in his decision. "The [Commissioner], and not the court, is charged with the duty to weigh the evidence, to resolve material conflicts in the testimony, and to determine the case accordingly." Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) (per curiam) (emphasis added). Moreover, "[a]n administrative law judge may not ask a vocational expert a hypothetical question based on substantial evidence and then ignore unfavorable answers." Campbell v. Bowen, 822 F.2d 1518, 1523 n.6 (10th Cir. 1987).9 10 9 Accord Angel v. Barnhart, 329 F.3d 1208, 1212 (10th Cir. 2003) ("In performing his step four analysis, the ALJ ignored and failed to address Dr. Schneider’s testimony at the hearing, which is supported by her medical records, that Angel needs a sterile environment in which to catheterize herself due to the risk of infection. This omission is significant because, following Dr. Schneider’s testimony, the vocational expert (VE) testified, in response to a hypothetical question posed by Angel’s counsel, that the requirement of providing Angel with a sterile environment, which would basically require that she have a personal, or private, bathroom,'would have a negative impact... [and] would [not] preclude all employment, but it would be rather significant in reducing the occupational base.’ []Dr. Schneider's testimony, and the related testimony of the VE, is supported by substantial medical evidence in the record showing that Angel is at high risk of contracting recurrent urinary tract infections. We therefore agree with Angel that the ALJ’s failure to address the testimony is reversible error." (citing, inter alia, Campbell, 822 F.2d at 1523 n.6) (record citations omitted)); Arrington v. Apfel, 185 F.3d 873 (10th Cir. 1999) (per curiam) (unpublished) ("[T]he hypothetical questions posed to the VE were problematic. The first question, based on Dr. Standefer’s findings and plaintiff’s condition as of shortly after plaintiff's accident, elicited a series of jobs the VE thought plaintiff could perform, most of which were at least semiskilled. With the additional restrictions of numbness in her dominant hand, however, the VE in his answers to the second and third questions stated there were no jobs she could perform. We have held that an ALJ may not ask a VE a hypothetical question based on substantial evidence and then ignore unfavorable answers." (citing Campbell v., 822 F.2d at 1523 n.6)). 10 The undersigned and the Eleventh Circuit have found that similar errors involving multi-faceted medical opinions merited remand. In Smith v. Colvin, Civil Action No. 2:13-00275-N, 2014 WL 518057 (S.D. Ala. Feb. 10, 2014), the ALJ clearly relied on some parts of a medical opinion to support her determinations at Step Two Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 18 of 20 Accordingly, the Court SUSTAINS Burton’s claim that the ALJ reversibly erred in failing to address with particularity Dr. McNamara’s opinion that Burton’s near and far visual acuity was limited.11 Thus, the Commissioner’s final decision on Burton’s applications for benefits is due to be REVERSED and REMANDED for a and Step Four, but did not acknowledge rejecting, or even considering, a portion of that opinion reflecting that the claimant would have to miss 1 – 2 days of work a month due to her psychiatric symptoms. 2014 WL 518057, at *4. This omission was deemed "significant" because, in response to the ALJ’s hypothetical that incorporated that particular limitation, the VE had testified that employers would not tolerate such a rate of absenteeism. Id. See also Caffey v. Colvin, No. CV 15-00490-N, 2016 WL 6436564, at *11 – 12 (S.D. Ala. Oct. 28, 2016) (similar). In Dempsey v. Commissioner of Social Security, 454 F. App'x 729 (11th Cir. 2011) (per curiam) (unpublished), the ALJ addressed and discounted one opinion, regarding the number of days of work per month the claimant would miss due to her impairments, contained in a treating physician’s questionnaire, but did not mention another opinion, regarding the claimant’s ability to concentrate, contained in the same questionnaire. 454 F. App’x at 733. The Eleventh Circuit held that the "ALJ erred when he failed to mention, much less consider, [the treating physician]’s opinion of Dempsey’s ability to concentrate" because the opinion was "contrary to the ALJ’s finding in his RFC assessment that Dempsey had no significant mental limitations[,]" and because "[w]hether or not Dempsey has an inability to concentrate [wa]s significant because the vocational expert testified that an individual with all of Dempsey’s physical limitations whose pain and other symptoms would interfere with the attention and concentration needed to perform simple work tasks would be precluded from performing any work." Id. at 733 & n.6. 11Burton’s only other claim of reversible error is premised on the contention that the ALJ was required to support each aspect of his RFC with the opinion of a medical professional and that "[h]is reliance on his own unexplained lay interpretation of the medical data violates the regulations and renders the RFC unsupported by substantial evidence." (Doc. 19 at 14). The undersigned has previously rejected a similar argument after examining relevant persuasive authority, see Fritts v. Colvin, Civil Action No. 15-00209-N, 2016 WL 3566866, at *7 – 9 (S.D. Ala. June 24, 2016), and Burton does not persuade the undersigned to depart from that reasoning here. See 20 C.F.R. §§ 404.1546(c), 416.946(c) ("If your case is at the administrative law judge hearing level or at the Appeals Council review level, the administrative law judge or the administrative appeals judge at the Appeals Council (when the Appeals Council makes a decision) is responsible for assessing your residual functional capacity."). Accordingly, Burton’s second claim of error is OVERRULED. Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 19 of 20 rehearing under sentence four of § 405(g). On remand, the Commissioner must resolve the material conflict between Dr. McNamara’s opinion and the VE’s testimony identified in this opinion.12 IV. Conclusion In accordance with the foregoing analysis, it is ORDERED that the Commissioner’s final decision issued March 8, 2016, denying Burton’s applications for a period of disability, DIB, and SSI is REVERSED and REMANDED under sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89 (1991), for further proceedings consistent with this decision. This remand under sentence four of § 405(g) makes Burton a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412, see Shalala v. Schaefer, 509 U.S. 292 (1993), and terminates this Court’s jurisdiction over this matter. 12Generally, remand to the Commissioner for further proceedings "is warranted where the ALJ has failed to apply the correct legal standards." Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993). This Court may enter an order "awarding disability benefits where the [Commissioner] has already considered the essential evidence and it is clear that the cumulative effect of the evidence establishes disability without any doubt." Id. See also Carnes v. Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991) ("The credibility of witnesses is for the Secretary to determine, not the courts…The decision of the Secretary here, however, rests not so much on the credibility of the'history of pain; presented by Carnes, as on the adoption of a legal standard improper under Listing 10.10(A). []The record in this case is fully developed and there is no need to remand for additional evidence. Based on the facts adduced below and after application of the proper legal standard, we hold that claimant met the requirements of Listing 10.10(A) as early as 1982."). Burton has not requested that this Court direct an award of benefits, instead requesting only "that this matter be remanded for further administrative proceedings." (Doc. 19 at 18). Moreover, reversal is based on the Commissioner’s failure to resolve material conflicts in the evidence, and it is not clear that the cumulative effect of the evidence establishes disability without any doubt. Thus, the Court will reverse and remand this action to the Commissioner for further proceedings. Case 2:16-cv-00210-N Document 27 Filed 05/10/17 Page 20 of 20 Under Federal Rule of Civil Procedure 54(d)(2)(B), should Burton be awarded Social Security benefits on the subject applications following this remand, the Court hereby grants Burton’s counsel an extension of time in which to file a motion for fees under 42 U.S.C. § 406(b) until thirty days after the date of receipt of a notice of award of benefits from the SSA.13 Consistent with 20 C.F.R. § 422.210(c), "the date of receipt of notice … shall be presumed to be 5 days after the date of such notice, unless there is a reasonable showing to the contrary." If multiple award notices are issued, the time for filing a § 406(b) fee motion shall run from the date of receipt of the latest-dated notice. Final judgment shall issue separately in accordance with this order and Federal Rule of Civil Procedure 58. DONE and ORDERED this the 10th day of May 2017./s/Katherine P. Nelson KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE 13 See Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006) (per curiam) ("Fed. R. Civ. P. 54(d)(2) applies to a § 406(b) attorney's fee claim."); Blitch v. Astrue, 261 F. App'x 241, 242 n.1 (11th Cir. 2008) (per curiam) (unpublished) ("In Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273 (11th Cir. 2006), we suggested the best practice for avoiding confusion about the integration of Fed. R. Civ. P. 54(d)(2)(B) into the procedural framework of a fee award under 42 U.S.C. § 406 is for a plaintiff to request and the district court to include in the remand judgment a statement that attorneys fees may be applied for within a specified time after the determination of the plaintiff's past due benefits by the Commission. 454 F.3d at 1278 n.2.").

JUDGMENT in favor of plaintiff Mary Denise Burton and against defendant Carolyn W. Colvin. Signed by Magistrate Judge Katherine P. Nelson on 5/10/2017.

Case 2:16-cv-00210-N Document 28 Filed 05/10/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION MARY DENISE BURTON,) Plaintiff,)) v.) CIVIL ACTION NO. 16-00210-N) NANCY A. BERRYHILL, Acting) Commissioner of Social Security,) Defendant.) FINAL JUDGMENT In accordance with the Order entered on this date reversing the Commissioner’s final decision denying Burton’s applications for benefits and remanding for further proceedings under sentence four of 42 U.S.C. § 405(g), it is hereby ORDERED, ADJUDGED, and DECREED that JUDGMENT is entered in favor of Plaintiff Mary Denise Burton and against the Defendant Commissioner of Social Security. DONE and ORDERED this the 10th day of May 2017./s/Katherine P. Nelson KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

MOTION for Attorney Fees Under the Equal Access to Justice Act Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Mary Denise Burton.

Case 2:16-cv-00210-N Document 29 Filed 08/07/17 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION __________________________________ MARY DENISE BURTON, Plaintiff, 2:16-cv-00210-N v. Notice of Motion for Attorney’s Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. _________________________________ COUNSEL: PLEASE TAKE NOTICE that upon the annexed affirmation of Howard D. Olinsky, attorney for the plaintiff, and other papers, the plaintiff will make a motion before the Court on a date to be set by the court, for an order: 1. Awarding an Equal Access to Justice Act Counsel Fee for $5,463.01 and 2. If the Plaintiff has no debt registered with the Department of Treasury subject to offset that the fees be made payable to the attorney. Plaintiffs attorney, Howard D. Olinsky, moves the court for an award to be paid by the Defendant under the Equal Access to Justice Act, 28 USCS § 2412. There are no special circumstances in this case which make an award under the EAJA unjust. Case 2:16-cv-00210-N Document 29 Filed 08/07/17 Page 2 of 2 This motion is supported by an affirmation of Plaintiffs attorney, attached time and cost records and a Waiver of Direct Payment by the plaintiff. Executed this August 7, 2017 Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky, Esq. Counsel for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State St., Suite 420 Syracuse, NY 13202 Telephone: 315-701-5780 Facsimile: 315-701-5781 Email: fedct@windisability.com To: Daniel Balsam, Esq. Attorney for Defendant Special Assistant United States Attorney Social Security Administration Office of the General Counsel Altmeyer Building, Room 617 6401 Security Boulevard Baltimore, MD 21235-6401 Telephone: 410-966-4215 Fax: 410-597-0137 Email: daniel.balsam@ssa.gov

AFFIDAVIT in Support re [29] MOTION for Attorney Fees Under the Equal Access to Justice Act Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Mary Denise Burton.

Case 2:16-cv-00210-N Document 30 Filed 08/07/17 Page 1 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION __________________________________ MARY DENISE BURTON, Plaintiff, 2:16-cv-00210-N Attorney’s Affirmation v. in Support of Motion for EAJA Fees NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. _________________________________ STATE OF NEW YORK) COUNTY OF ONONDAGA) ss: Howard D. Olinsky, hereby affirms and states: 1. I am Plaintiff’s attorney in this action. 2. I make this affirmation knowing that the Court will rely upon it assessing any awards under the Equal Access to Justice Act disposed of under 28 USCS § 2412. 3. There are no special circumstances in this case which make an award under the EAJA unjust. 4. The Court ordered that this case be remanded for further administrative proceedings, under the fourth sentence of 42 U.S.C. § 405(g). 5. Plaintiff is a party whose net assets are worth less than two million dollars. 6. It is alleged that the Government’s position in litigation was "not substantially justified. 7. A judgment has been entered and has not or will not be appealed. Case 2:16-cv-00210-N Document 30 Filed 08/07/17 Page 2 of 4 HOURLY RATE REQUESTED 8. The statutory EAJA fee in March 1996 was $125.00 per hour. However, there has been an increase in the cost of living since the amendment to the EAJA took effect on March 29, 1996. Cost of living increase is specifically mentioned in the EAJA as a factor justifying a fee greater than $125.00 per hour. 28 USCS § 2412 (d)(2)(A)(ii). According to the Consumer Price Index for this region as reported by the Bureau of Labor Statistics (Exhibit A), there has been an increase in the cost of living from March 29, 1996 to the present. Applying this cost of living increase to $125.00 per hour yields an attorney’s hourly rate identified in the chart below for work using the second half of 2016 figures. Atty CPI increase $191.86 Atty hours 24.2 $4,643.01 Paralegal rate $100.00 Paralegal hours 8.2 $820.00 Total EAJA request $5,463.01 TIME/COST ACCOUNTING 9. The time accounting is presented to the court in two fashions. Exhibit B is the time spent by all who worked on this case in chronological sequence. Exhibit C lists the attorneys and their time and Exhibit D lists the paralegals and their time. 10. All services on this case were rendered by your affiant and my professional staff, unless specifically noted otherwise. The attached records were contemporaneously created and stored in the firms Prevail Database, and are printed out and attached. The itemized time Case 2:16-cv-00210-N Document 30 Filed 08/07/17 Page 3 of 4 represents hours spent preparing and handling this case for U.S. District Court. Clerical time is not included in this petition or has been zeroed out. Waiver of Direct Payment of EAJA Fees 11. Attached as Exhibit E is a Waiver of Direct Payment duly executed by the plaintiff. With this Waiver, if Plaintiff owes a debt that qualifies under the Treasury Offset Program (31 USCS § 3716), any payment shall be made payable to the Plaintiff and delivered to the Plaintiff’s attorney. If the United States Department of Treasury determines that Plaintiff owes no debt that is subject to offset, the government may accept the assignment of EAJA fees and pay such fees directly to the Plaintiff’s attorney. Astrue v. Ratliff, 560 U.S. 586, 130 S. Ct. 2521 (2010). WHEREFORE, because all four elements of an allowable application for EAJA fees have been proven or alleged, petitioner humbly prays that the Court issue an order: 1. Awarding attorney’s fees of $5,463.01 under the Equal Access to Justice Act; and 2. If the Plaintiff has no debt registered with the Department of Treasury subject to offset that the fees be made payable to the attorney. Executed August 7, 2017 Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky, Esq. Counsel for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State St., Suite 420 Syracuse, NY 13202 Telephone: 315-701-5780 Facsimile: 315-701-5781 Email: fedct@windisability.com Case 2:16-cv-00210-N Document 30 Filed 08/07/17 Page 4 of 4 To: Daniel Balsam, Esq. Attorney for Defendant Special Assistant United States Attorney Social Security Administration Office of the General Counsel Altmeyer Building, Room 617 6401 Security Boulevard Baltimore, MD 21235-6401 Telephone: 410-966-4215 Fax: 410-597-0137 Email: daniel.balsam@ssa.gov

Exhibit A CPI Table

Exhibit A Case 2:16-cv-00210-N Document 30-1 Filed 08/07/17 Page 2 of 3 Second Half of 2016 CPI Calculation EAJA CALCULATION TABLES – INFLATION SINCE 1996 In March 1996 when EAJA was enacted, the consumer price index for the South was 152.4. The original maximum EAJA rate was $125 per hour. 28 U.S.C. §2412(d)(2)(A)(ii). 2016 In the Second Half of 2016, the Average Consumer Price Index was 233.915 Therefore, Original EAJA Rate (x)2016 EAJA Rate ________________ = _____________ March 1996 CPI 2016 CPI $125.00 x _________ = __________ 152.4 233.915 2016 EAJA Rate = $191.86 per hour Source: Consumer Price Index – South Urban – All Urban Consumers, Bureau of Labor Statistics, U.S. Department of Labor, available at http://Data.bls.gov (last visited March 16, 2017) Bureau of Labor Statistics Data https://data.bls.gov/pdq/SurveyOutputServlet Case 2:16-cv-00210-N Document 30-1 Filed 08/07/17 Page 3 of 3 A to Z Index FAQs About BLS Contact Us Subscribe to E-mail Updates Follow Us What's New Release Calendar Blog Search BLS.gov Home Subjects Data Tools Publications Economic Releases Students Beta SHARE ON: FONT SIZE: Change Output Options: From: To: include graphs include annual averages Data extracted on: March 16, 2017 (9:26:55 AM) Consumer Price Index-All Urban Consumers Series Id: CUUR0300SA0 Not Seasonally Adjusted Area: South urban Item: All items Base Period: 1982-84=100 Download: Year Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Annual HALF1 HALF2 1996 151.1 151.5 152.4 153.2 153.5 154.0 154.0 154.1 154.5 154.9 155.1 155.1 153.6 152.6 154.6 1997 155.7 156.1 156.5 156.7 156.6 157.0 157.0 157.1 157.5 157.8 157.8 157.3 156.9 156.4 157.4 1998 157.6 157.8 158.2 158.5 158.8 159.1 159.3 159.5 159.5 159.8 159.6 159.6 158.9 158.3 159.6 1999 159.9 160.0 160.6 161.5 161.6 161.7 162.2 162.6 163.2 163.6 163.5 163.6 162.0 160.9 163.1 2000 164.1 164.8 166.5 166.7 166.7 167.5 168.0 168.0 168.5 168.5 168.6 168.4 167.2 166.1 168.3 2001 169.3 170.2 170.6 171.4 171.7 172.2 171.6 171.5 172.2 171.7 171.0 170.3 171.1 170.9 171.4 2002 170.6 171.0 172.1 173.1 173.2 173.5 173.6 173.8 174.2 174.9 174.9 174.6 173.3 172.3 174.3 2003 175.1 176.4 177.5 177.4 176.8 177.2 177.3 177.9 178.3 178.1 177.5 177.5 177.3 176.7 177.8 2004 178.2 179.1 180.1 180.9 182.0 182.9 182.6 182.6 182.8 183.7 183.7 183.3 181.8 180.5 183.1 2005 183.6 184.7 185.9 187.3 187.3 187.8 188.5 189.4 192.0 192.5 190.7 190.1 188.3 186.1 190.5 2006 191.5 191.8 192.8 194.7 195.5 196.3 197.0 197.1 195.8 194.7 194.3 194.8 194.7 193.8 195.6 2007 195.021 195.950 197.904 199.618 200.804 201.675 201.571 201.041 201.697 202.155 203.437 203.457 200.361 198.495 202.226 2008 204.510 205.060 206.676 208.085 210.006 212.324 213.304 212.387 212.650 210.108 205.559 203.501 208.681 207.777 209.585 2009 204.288 205.343 206.001 206.657 207.265 209.343 208.819 209.000 208.912 209.292 209.738 209.476 207.845 206.483 209.206 2010 210.056 210.020 211.216 211.528 211.423 211.232 210.988 211.308 211.775 212.026 211.996 212.488 211.338 210.913 211.764 2011 213.589 214.735 217.214 218.820 219.820 219.318 219.682 220.471 220.371 219.969 219.961 219.469 218.618 217.249 219.987 2012 220.497 221.802 223.314 224.275 223.356 223.004 222.667 223.919 225.052 224.504 223.404 223.109 223.242 222.708 223.776 2013 223.933 225.874 226.628 226.202 226.289 227.148 227.548 227.837 227.876 227.420 226.811 227.082 226.721 226.012 227.429 2014 227.673 228.664 230.095 231.346 231.762 232.269 232.013 231.611 231.762 231.131 229.845 228.451 230.552 230.302 230.802 2015 226.855 227.944 229.337 229.957 230.886 232.026 231.719 231.260 230.913 230.860 230.422 229.581 230.147 229.501 230.793 2016 229.469 229.646 230.977 231.975 232.906 233.838 233.292 233.561 234.069 234.337 234.029 234.204 232.692 231.469 233.915 2017 235.492 236.052 RECOMMEND THIS PAGE USING: Facebook Twitter LinkedIn TOOLS CALCULATORS HELP INFO RESOURCES Areas at a Glance Inflation Help & Tutorials What's New Inspector General (OIG) Industries at a Glance Location Quotient FAQs Careers@BLS Budget and Performance Economic Releases Injury And Illness Glossary Find It! DOL No Fear Act Databases & Tables About BLS Join our Mailing Lists USA.gov Maps Contact Us Linking & Copyright Info Benefits.gov Disability.gov Freedom of Information Act Privacy & Security Statement Disclaimers Customer Survey Important Web Site Notices U.S. Bureau of Labor Statistics Postal Square Building, 2 Massachusetts Avenue, NE Washington, DC 20212-0001 www.bls.gov Telephone: 1-202-691-5200 TDD: 1-800-877-8339 Contact Us 1 of 1 3/16/2017 9:35 AM

Exhibit B All Professional Time

Exhibit B Case 2:16-cv-00210-N Document 30-2 Filed 08/07/17 Page 2 of 4 Ledger Burton, Mary Denise Date  Subject Hours Timekeeper 3/17/2016 Files received, reviewed and processed from referral source for attorney review 0.6 Callahan, Michelle 3/17/2016 Correspondence to Client re: Acknowledgment of federal court review 0.2 Callahan, Michelle 3/25/2016 Telephone call to Client re: Attempt federal debt check-left VM 0 Callahan, Michelle 4/6/2016 Telephone call with Client re: Conference called to complete federal debt check 0.4 Callahan, Michelle 4/11/2016 Telephone call with Client re: Status of review 0.1 Callahan, Michelle 4/15/2016 Review decisions and evidence to determine whether to appeal case 1 Van Auken, Alyssa 4/19/2016 Telephone call to Client re: Acceptance of case & review of forms packet-left VM 0.1 Callahan, Michelle 4/20/2016 Federal court forms packet prepared for Client completion 0.6 Callahan, Michelle 4/20/2016 Telephone call with Client re: Assistance with In Forma Pauperis application 0.4 Callahan, Michelle 4/20/2016 Federal Court forms packet sent to Client via Right Signature 0.2 Callahan, Michelle 4/20/2016 Federal Court forms packet returned via Right Sig, reviewed for completion 0.3 Callahan, Michelle 4/20/2016 Telephone call with Client re: Confirmation of forms received 0.1 Callahan, Michelle 4/29/2016 Telephone call with Client re: Questions about the process 0.2 Persse, Shannon 5/12/2016 Draft Complaint, proposed summons, letter to Clerk 0.5 Olinsky, Howard D. 5/12/2016 Draft Motion for pro hac vice admission 0 Olinsky, Howard D. 5/12/2016 Email to Clerk re: New case initiation 0.2 Smith, Michael P. 5/12/2016 Review Motion for leave to proceed in forma pauperis, approve for filing 0.2 Olinsky, Howard D. 5/12/2016 File initial case doucments via CM/ECF 0 Smith, Michael P. 5/12/2016 Telephone call with Clerk 0.2 Smith, Michael P. 5/13/2016 Federal Court-Accept Letter-New FDC Filing 0.3 Smith, Michael P. 5/13/2016 Download, file, save and distribute ECF re: Motion referred to Judge Nelson 0 Callahan, Michelle 5/13/2016 Review Motion for leave to proceed IFP referred to Judge Katherinr P. Nelson 0.1 Olinsky, Howard D. 5/13/2016 Dwld, file, save & distribute ECF re: Complaint, Civil Cover Sheet, Pro. Summons 0 Callahan, Michelle 5/13/2016 Dwld, file, save & distribute ECF re: Motion for leave in forma pauperis 0 Callahan, Michelle 5/13/2016 Download, file, save and distribute ECF re: Motion for leave pro hac vice 0 Callahan, Michelle 5/13/2016 Draft amended motion to appear pro hac vice 0 Olinsky, Howard D. 5/13/2016 File amended motion for leave to proceed pro hac vice 0 Smith, Michael P. 5/13/2016 Download, file, save and distribute ECF re: Amended motion pro hac vice 0 Callahan, Michelle 5/13/2016 Download, file, save and distribute ECF re: Amended motion referred to Judge 0 Callahan, Michelle 5/13/2016 Download, file, save and distribute ECF re: Endorsed order pro hac vice 0 Callahan, Michelle 5/13/2016 Review Endorsed order granting motion to appear Pro Hac Vice 0 Olinsky, Howard D. 5/13/2016 Download, file, save and distribute ECF re: Order granting IFP status 0 Callahan, Michelle 5/13/2016 Review Order granting motion for leave in forma pauperis 0.2 Olinsky, Howard D. 5/16/2016 Download, file, save and distribute ECF re: Summons issued 0 Callahan, Michelle 5/16/2016 Review Summons issued and certified mail receipts 0.2 Eaglin, Paul B. 5/16/2016 Download, file, save and distribute ECF re: SS Scheduling order 0 Callahan, Michelle 5/16/2016 Review Social Security scheduling order, calendar on task pad 0.3 Eaglin, Paul B. 5/27/2016 Download, file, save and distribute ECF re: Return of service executed USAO 0 Callahan, Michelle 5/27/2016 Review Return of service executed as to US Attorney, record answer due date 0.2 Eaglin, Paul B. 6/1/2016 Dwld, file, save & distribute ECF re: NOA Patricia Beyer o/b/o Carolyn Colvin 0 Callahan, Michelle 32.40 (Type = Time) and ((Category = Federal Court) or (Category =))    Case 2:16-cv-00210-N Document 30-2 Filed 08/07/17 Page 3 of 4 Date  Subject Hours Timekeeper 6/1/2016 Review notice of appearance Patricia Nicole Beyer o/b/o Carolyn w. Colvin 0.1 Eaglin, Paul B. 6/2/2016 Download, file, save and distribute ECF re: Return of service Attorney General 0 Callahan, Michelle 6/2/2016 Review Return of service as Attorney General, served on 5/23/16 0.1 Eaglin, Paul B. 6/8/2016 Download, file, save and distribute ECF re: Return of service as to OGC 0 Callahan, Michelle 6/8/2016 Review Return of service as Office of General Counsel, served on 5/31/16 0.1 Eaglin, Paul B. 8/11/2016 Telephone call with US Attorney re: Extension request 0.2 Gifford, Kyrsten 8/11/2016 Dwld, file, save & distribute ECF re: Motion for extension of time to answer 0 Lockwood, Tamica 8/11/2016 Review Motion for extension of time to file answer 0.1 Eaglin, Paul B. 8/11/2016 Download, file, save and distribute ECF re: Motion referred to Judge Nelson 0 Lockwood, Tamica 8/11/2016 Review Motion for extension of time to answer referred to Judge Nelson 0.1 Eaglin, Paul B. 8/12/2016 Download, file, save and distribute ECF re: Endorsed Order granting extension 0 Lockwood, Tamica 8/12/2016 Review Endorsed order granting extension to answer, update task pad 0.2 Eaglin, Paul B. 8/24/2016 Telephone call with Client re: Status update 0.1 Gifford, Kyrsten 10/7/2016 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 10/7/2016 Download, file, save and distribute ECF re: Answer 0 Lockwood, Tamica 10/7/2016 Review Answer filed by Carolyn W. Colvin 0.1 Eaglin, Paul B. 10/7/2016 Download, file, save and distribute ECF re: SS Transcript 0 Lockwood, Tamica 10/7/2016 Strip PDF/A, OCR and Live Bookmarked Federal Court Transcript (404 pgs) 0.4 Lockwood, Tamica 10/11/2016 Review and execute consent to Jurisdiction by Magistrate 0.1 Olinsky, Howard D. 10/11/2016 Email to Opposing Counsel re: Magistrate consent 0.1 Lockwood, Tamica 10/26/2016 Received executed magistrate consent from OC, file via CM/ECF 0.1 Lockwood, Tamica 10/27/2016 Download, file, save and distribute ECF re: Consent to Magistrate Judge 0 Lockwood, Tamica 10/27/2016 Download, file, save & distribute ECF re: Endorsed order referring to Magistrate 0 Lockwood, Tamica 10/27/2016 Review Endorsed order referring case to Magistrate Judge Katherine Nelson 0.1 Eaglin, Paul B. 11/2/2016 Review CAR, take notes and organize facts (404 pgs) 3.1 Burkett, Marisa 11/3/2016 Draft procedural section, drafting facts 2.1 Burkett, Marisa 11/4/2016 Research issues and drafting argument 4.7 Burkett, Marisa 11/7/2016 Continue researching issues and drafting arguments 5.4 Burkett, Marisa 11/7/2016 Senior Atttorney review draft brief, suggest edits 0.8 Eaglin, Paul B. 11/7/2016 Implement suggested edits, finalize and file brief (n/c for filing) 0.9 Burkett, Marisa 11/7/2016 Download, file, save, and distribute ECF re: Social Security brief 0 Lockwood, Tamica 11/7/2016 Download, file, save and distribute ECF re: Fact sheet for SS appeals 0 Lockwood, Tamica 12/15/2016 Telephone call with US Attorney re: Extension request 0.2 Gifford, Kyrsten 12/15/2016 Telephone call with Client re: Status update 0.2 Gifford, Kyrsten 12/20/2016 Download, file, save and distribute ECF re: Motion for extension of time 0 Lockwood, Tamica 12/20/2016 Review Defendant's motion for extension to file response/reply 0.1 Eaglin, Paul B. 12/20/2016 Download, file, save and distribute ECF re: Endorsed order granting extension 0 Lockwood, Tamica 12/20/2016 Review Order granting extension of time to file response/reply, update task pad 0.2 Eaglin, Paul B. 2/3/2017 Telephone call with Client re: Status update 0.1 Gifford, Kyrsten 2/6/2017 Download, file, save and distribute ECF re: Social security brief 0 Lockwood, Tamica 2/6/2017 Review Social security brief by Defendant (13 pgs) 0.4 Eaglin, Paul B. 2/7/2017 Download, file, save and distribute ECF re: Order setting SS hearing 0 Lockwood, Tamica 2/7/2017 Review Order setting Social Security hearing, calendar on task pad 0.3 Eaglin, Paul B. 2/7/2017 Assign Attorney writer to appear/waive oral arguments 0.2 Eaglin, Paul B. 32.40 (Type = Time) and ((Category = Federal Court) or (Category =))    Case 2:16-cv-00210-N Document 30-2 Filed 08/07/17 Page 4 of 4 Date  Subject Hours Timekeeper 2/7/2017 Draft motion to waive Oral Arguments, confer with Opposing Counsel 0.3 Burkett, Marisa 2/8/2017 Download, file, save and distribute ECF re: Joint motion to waive oral arguments 0 Lockwood, Tamica 2/8/2017 Download, file, save and distribute ECF re: Endorsed order Motion to waive OA 0 Lockwood, Tamica 2/8/2017 Review Order granting motion to waive oral arguments, remove from task pad 0.2 Eaglin, Paul B. 5/10/2017 Download, file, save and distribute ECF re: Memo opinion and order 0 Lockwood, Tamica 5/10/2017 Review Memorandum opinion and order (20 pages) 0.7 Olinsky, Howard D. 5/10/2017 Download, file, save and distribute ECF re: Judgment in favor of Burton 0 Lockwood, Tamica 5/10/2017 Review Judgment in favor of Mary Denise Burton 0.1 Olinsky, Howard D. 5/12/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 5/12/2017 Federal Court-Remand Referral back to Referral Source 0.3 Callahan, Michelle 7/21/2017 EAJA Preparation 1.5 Persse, Shannon 7/25/2017 Review Slips and Finalize EAJA Motion 0.5 Olinsky, Howard D. 8/7/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 32.40 (Type = Time) and ((Category = Federal Court) or (Category =))   

Exhibit C Attorney Time

Exhibit C Case 2:16-cv-00210-N Document 30-3 Filed 08/07/17 Page 2 of 2 Ledger Burton, Mary Denise Date  Subject Hours Timekeeper 4/15/2016 Review decisions and evidence to determine whether to appeal case 1 Van Auken, Alyssa 5/12/2016 Draft Complaint, proposed summons, letter to Clerk 0.5 Olinsky, Howard D. 5/12/2016 Draft Motion for pro hac vice admission 0 Olinsky, Howard D. 5/12/2016 Review Motion for leave to proceed in forma pauperis, approve for filing 0.2 Olinsky, Howard D. 5/13/2016 Review Motion for leave to proceed IFP referred to Judge Katherinr P. Nelson 0.1 Olinsky, Howard D. 5/13/2016 Draft amended motion to appear pro hac vice 0 Olinsky, Howard D. 5/13/2016 Review Endorsed order granting motion to appear Pro Hac Vice 0 Olinsky, Howard D. 5/13/2016 Review Order granting motion for leave in forma pauperis 0.2 Olinsky, Howard D. 5/16/2016 Review Summons issued and certified mail receipts 0.2 Eaglin, Paul B. 5/16/2016 Review Social Security scheduling order, calendar on task pad 0.3 Eaglin, Paul B. 5/27/2016 Review Return of service executed as to US Attorney, record answer due date 0.2 Eaglin, Paul B. 6/1/2016 Review notice of appearance Patricia Nicole Beyer o/b/o Carolyn w. Colvin 0.1 Eaglin, Paul B. 6/2/2016 Review Return of service as Attorney General, served on 5/23/16 0.1 Eaglin, Paul B. 6/8/2016 Review Return of service as Office of General Counsel, served on 5/31/16 0.1 Eaglin, Paul B. 8/11/2016 Review Motion for extension of time to file answer 0.1 Eaglin, Paul B. 8/11/2016 Review Motion for extension of time to answer referred to Judge Nelson 0.1 Eaglin, Paul B. 8/12/2016 Review Endorsed order granting extension to answer, update task pad 0.2 Eaglin, Paul B. 10/7/2016 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 10/7/2016 Review Answer filed by Carolyn W. Colvin 0.1 Eaglin, Paul B. 10/11/2016 Review and execute consent to Jurisdiction by Magistrate 0.1 Olinsky, Howard D. 10/27/2016 Review Endorsed order referring case to Magistrate Judge Katherine Nelson 0.1 Eaglin, Paul B. 11/2/2016 Review CAR, take notes and organize facts (404 pgs) 3.1 Burkett, Marisa 11/3/2016 Draft procedural section, drafting facts 2.1 Burkett, Marisa 11/4/2016 Research issues and drafting argument 4.7 Burkett, Marisa 11/7/2016 Continue researching issues and drafting arguments 5.4 Burkett, Marisa 11/7/2016 Senior Atttorney review draft brief, suggest edits 0.8 Eaglin, Paul B. 11/7/2016 Implement suggested edits, finalize and file brief (n/c for filing) 0.9 Burkett, Marisa 12/20/2016 Review Defendant's motion for extension to file response/reply 0.1 Eaglin, Paul B. 12/20/2016 Review Order granting extension of time to file response/reply, update task pad 0.2 Eaglin, Paul B. 2/6/2017 Review Social security brief by Defendant (13 pgs) 0.4 Eaglin, Paul B. 2/7/2017 Review Order setting Social Security hearing, calendar on task pad 0.3 Eaglin, Paul B. 2/7/2017 Assign Attorney writer to appear/waive oral arguments 0.2 Eaglin, Paul B. 2/7/2017 Draft motion to waive Oral Arguments, confer with Opposing Counsel 0.3 Burkett, Marisa 2/8/2017 Review Order granting motion to waive oral arguments, remove from task pad 0.2 Eaglin, Paul B. 5/10/2017 Review Memorandum opinion and order (20 pages) 0.7 Olinsky, Howard D. 5/10/2017 Review Judgment in favor of Mary Denise Burton 0.1 Olinsky, Howard D. 7/25/2017 Review Slips and Finalize EAJA Motion 0.5 Olinsky, Howard D. 24.20 (Type = Time) and ((Category = Federal Court) or (Category =)) and ((Timekeeper = Burkett, Marisa) or (Timekeeper = Eaglin, P...   

Exhibit D Paralegal Time

Exhibit D Case 2:16-cv-00210-N Document 30-4 Filed 08/07/17 Page 2 of 3 Ledger Burton, Mary Denise Date  Subject Hours Timekeeper 3/17/2016 Files received, reviewed and processed from referral source for attorney review 0.6 Callahan, Michelle 3/17/2016 Correspondence to Client re: Acknowledgment of federal court review 0.2 Callahan, Michelle 3/25/2016 Telephone call to Client re: Attempt federal debt check-left VM 0 Callahan, Michelle 4/6/2016 Telephone call with Client re: Conference called to complete federal debt check 0.4 Callahan, Michelle 4/11/2016 Telephone call with Client re: Status of review 0.1 Callahan, Michelle 4/19/2016 Telephone call to Client re: Acceptance of case & review of forms packet-left VM 0.1 Callahan, Michelle 4/20/2016 Federal court forms packet prepared for Client completion 0.6 Callahan, Michelle 4/20/2016 Telephone call with Client re: Assistance with In Forma Pauperis application 0.4 Callahan, Michelle 4/20/2016 Federal Court forms packet sent to Client via Right Signature 0.2 Callahan, Michelle 4/20/2016 Federal Court forms packet returned via Right Sig, reviewed for completion 0.3 Callahan, Michelle 4/20/2016 Telephone call with Client re: Confirmation of forms received 0.1 Callahan, Michelle 4/29/2016 Telephone call with Client re: Questions about the process 0.2 Persse, Shannon 5/12/2016 Email to Clerk re: New case initiation 0.2 Smith, Michael P. 5/12/2016 File initial case doucments via CM/ECF 0 Smith, Michael P. 5/12/2016 Telephone call with Clerk 0.2 Smith, Michael P. 5/13/2016 Federal Court-Accept Letter-New FDC Filing 0.3 Smith, Michael P. 5/13/2016 Download, file, save and distribute ECF re: Motion referred to Judge Nelson 0 Callahan, Michelle 5/13/2016 Dwld, file, save & distribute ECF re: Complaint, Civil Cover Sheet, Pro. Summons 0 Callahan, Michelle 5/13/2016 Dwld, file, save & distribute ECF re: Motion for leave in forma pauperis 0 Callahan, Michelle 5/13/2016 Download, file, save and distribute ECF re: Motion for leave pro hac vice 0 Callahan, Michelle 5/13/2016 File amended motion for leave to proceed pro hac vice 0 Smith, Michael P. 5/13/2016 Download, file, save and distribute ECF re: Amended motion pro hac vice 0 Callahan, Michelle 5/13/2016 Download, file, save and distribute ECF re: Amended motion referred to Judge 0 Callahan, Michelle 5/13/2016 Download, file, save and distribute ECF re: Endorsed order pro hac vice 0 Callahan, Michelle 5/13/2016 Download, file, save and distribute ECF re: Order granting IFP status 0 Callahan, Michelle 5/16/2016 Download, file, save and distribute ECF re: Summons issued 0 Callahan, Michelle 5/16/2016 Download, file, save and distribute ECF re: SS Scheduling order 0 Callahan, Michelle 5/27/2016 Download, file, save and distribute ECF re: Return of service executed USAO 0 Callahan, Michelle 6/1/2016 Dwld, file, save & distribute ECF re: NOA Patricia Beyer o/b/o Carolyn Colvin 0 Callahan, Michelle 6/2/2016 Download, file, save and distribute ECF re: Return of service Attorney General 0 Callahan, Michelle 6/8/2016 Download, file, save and distribute ECF re: Return of service as to OGC 0 Callahan, Michelle 8/11/2016 Telephone call with US Attorney re: Extension request 0.2 Gifford, Kyrsten 8/11/2016 Dwld, file, save & distribute ECF re: Motion for extension of time to answer 0 Lockwood, Tamica 8/11/2016 Download, file, save and distribute ECF re: Motion referred to Judge Nelson 0 Lockwood, Tamica 8/12/2016 Download, file, save and distribute ECF re: Endorsed Order granting extension 0 Lockwood, Tamica 8/24/2016 Telephone call with Client re: Status update 0.1 Gifford, Kyrsten 10/7/2016 Download, file, save and distribute ECF re: Answer 0 Lockwood, Tamica 10/7/2016 Download, file, save and distribute ECF re: SS Transcript 0 Lockwood, Tamica 10/7/2016 Strip PDF/A, OCR and Live Bookmarked Federal Court Transcript (404 pgs) 0.4 Lockwood, Tamica 10/11/2016 Email to Opposing Counsel re: Magistrate consent 0.1 Lockwood, Tamica 8.20 (Type = Time) and ((Category = Federal Court) or (Category =)) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Gifford...    Case 2:16-cv-00210-N Document 30-4 Filed 08/07/17 Page 3 of 3 Date  Subject Hours Timekeeper 10/26/2016 Received executed magistrate consent from OC, file via CM/ECF 0.1 Lockwood, Tamica 10/27/2016 Download, file, save and distribute ECF re: Consent to Magistrate Judge 0 Lockwood, Tamica 10/27/2016 Download, file, save & distribute ECF re: Endorsed order referring to Magistrate 0 Lockwood, Tamica 11/7/2016 Download, file, save, and distribute ECF re: Social Security brief 0 Lockwood, Tamica 11/7/2016 Download, file, save and distribute ECF re: Fact sheet for SS appeals 0 Lockwood, Tamica 12/15/2016 Telephone call with US Attorney re: Extension request 0.2 Gifford, Kyrsten 12/15/2016 Telephone call with Client re: Status update 0.2 Gifford, Kyrsten 12/20/2016 Download, file, save and distribute ECF re: Motion for extension of time 0 Lockwood, Tamica 12/20/2016 Download, file, save and distribute ECF re: Endorsed order granting extension 0 Lockwood, Tamica 2/3/2017 Telephone call with Client re: Status update 0.1 Gifford, Kyrsten 2/6/2017 Download, file, save and distribute ECF re: Social security brief 0 Lockwood, Tamica 2/7/2017 Download, file, save and distribute ECF re: Order setting SS hearing 0 Lockwood, Tamica 2/8/2017 Download, file, save and distribute ECF re: Joint motion to waive oral arguments 0 Lockwood, Tamica 2/8/2017 Download, file, save and distribute ECF re: Endorsed order Motion to waive OA 0 Lockwood, Tamica 5/10/2017 Download, file, save and distribute ECF re: Memo opinion and order 0 Lockwood, Tamica 5/10/2017 Download, file, save and distribute ECF re: Judgment in favor of Burton 0 Lockwood, Tamica 5/12/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 5/12/2017 Federal Court-Remand Referral back to Referral Source 0.3 Callahan, Michelle 7/21/2017 EAJA Preparation 1.5 Persse, Shannon 8/7/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 8.20 (Type = Time) and ((Category = Federal Court) or (Category =)) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Gifford...   

Exhibit E Affirmation and Waiver of Direct Payment of EAJA Fees

Exhibit E Case 2:16-cv-00210-N Document 30-5 Filed 08/07/17 Page 2 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ALABAMA (NORTHERN DIVISION)--------------------------------------------------------------MS. MARY DENISE BURTON, AFFIRMATION AND WAIVER OF DIRECT PAYMENT Plaintiff, OF EAJA FEES v. Civil Action No.: _________________ CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.---------------------------------------------------------------Ms. Mary Denise Burton, hereby states the following: 1. I am the Plaintiff in the above-captioned matter. 2. That I have retained Olinsky Law Group as my attorney for the above-captioned matter. 3. At the time that this action was begun, my net worth was less than $2,000,000.00. 4. If my case is remanded by the Federal Court, either by stipulation or order, my attorney may file for attorney’s fees pursuant to the Equal Access to Justice Act (EAJA). I understand that the EAJA fees are paid by the Federal Government and do not come from any back benefits owed to me by the Social Security Administration. 5. I hereby agree to waive direct payment of the EAJA fees and assign said fees to be paid directly to my attorney. 6. I understand that my attorney may still petition the Administration for legal fees for his or her work before the Administration that will be paid from my back benefits. As the Plaintiff in this case, I hereby declare and affirm under penalty of perjury that the information above is true and correct. Executed on April 20, 2016. __________________________ Ms. Mary Denise Burton Plaintiff

Memorandum in Support

Case 2:16-cv-00210-N Document 30-6 Filed 08/07/17 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION __________________________________ MARY DENISE BURTON, Plaintiff, 2:16-cv-00210-N v. Memorandum In Support of Plaintiff’s Petition for Counsel Fee Allowance Under Equal Access to Justice Act NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. _________________________________ This is a memorandum in support of a petition for an award of Counsel Fees under the Equal Access to Justice Act, 28 USCS § 2412 "EAJA." An EAJA award is available to a "prevailing party" in a case against the Federal Government, including Social Security cases, in the following instances: (a) When and if the plaintiff actually "prevails"; (b) The Government’s position in litigation is "not substantially justified"; (c) Plaintiff is a party whose net assets are worth less than two million dollars; and (d) The case has concluded with a "final order" which is non-appealable, or will not be appealed. Addressing these elements in reverse order, it is clear that the Plaintiff has met the burden necessary to receive EAJA fees. Plaintiff’s net worth did not exceed $2,000,000.00 when this action was filed. After service of the summons and complaint this Court entered an Order Case 2:16-cv-00210-N Document 30-6 Filed 08/07/17 Page 2 of 3 remanding this matter back to the Commissioner for further administrative proceedings pursuant to Sentence four of 42 U.S.C. § 405(g). Judgment was entered and has not been appealed. Plaintiff has prevailed because the District Court remanded the case under sentence four of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292 (U.S. 1993). Finally, the Commissioner was not substantially justified. As the U. S. Supreme Court has held, "the required'not substantially justified’ allegation imposes no proof burden on the fee applicant. It is, as its text conveys, nothing more than an allegation or pleading requirement. The burden of establishing'that the position of the United States was substantially justified’ … must be shouldered by the Government." Scarborough v. Principi, 541 U.S. 401, 124 S. Ct. 1856 (2004) While the fee applicant such as Plaintiff is required to "show" three of the four elements—prevailing party status, financial eligibility, and amount sought—Plaintiff need only "to allege" that the position of the government is not substantially justified. Id. Executed August 7, 2017 Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky, Esq. Counsel for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State St., Suite 420 Syracuse, NY 13202 Telephone: 315-701-5780 Facsimile: 315-701-5781 Email: fedct@windisability.com To: Daniel Balsam, Esq. Attorney for Defendant Case 2:16-cv-00210-N Document 30-6 Filed 08/07/17 Page 3 of 3 Special Assistant United States Attorney Social Security Administration Office of the General Counsel Altmeyer Building, Room 617 6401 Security Boulevard Baltimore, MD 21235-6401 Telephone: 410-966-4215 Fax: 410-597-0137 Email: daniel.balsam@ssa.gov

Certificate of Service

Case 2:16-cv-00210-N Document 30-7 Filed 08/07/17 Page 1 of 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION __________________________________ MARY DENISE BURTON, Plaintiff, 2:16-cv-00210-N v. Motion for Attorney’s Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. _________________________________ CERTIFICATE OF SERVICE I certify that I have electronically served the Notice of Motion, supporting affirmation and attached exhibits and Memo of Law for an EAJA application with the Clerk of the District Court using the CM/ECF system, which sent notification of such filing to: To: Daniel Balsam, Esq. Attorney for Defendant Special Assistant United States Attorney Social Security Administration Office of the General Counsel Altmeyer Building, Room 617 6401 Security Boulevard Baltimore, MD 21235-6401 Telephone: 410-966-4215 Fax: 410-597-0137 Email: daniel.balsam@ssa.gov August 7, 2017/s/Howard D. Olinsky Howard D. Olinsky, Esq.

MEMORANDUM OPINION AND ORDER granting in part and denying in part [29] Motion for Attorney Fees (EAJA); plaintiff is awarded $2,710.46 in fees and other expenses. Signed by Magistrate Judge Katherine P. Nelson on 9/26/17.

Case 2:16-cv-00210-N Document 32 Filed 09/26/17 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION MARY DENISE BURTON,) Plaintiff,)) v.) CIVIL ACTION NO. 16-00210-N) NANCY A. BERRYHILL, Acting) Commissioner of Social Security,) Defendant.) MEMORANDUM OPINION AND ORDER Plaintiff MARY DENISE BURTON (hereinafter, "the Plaintiff") has filed and served a motion for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"), and Federal Rule of Civil Procedure 54(d)(2) (Docs. 29, 30), requesting an award of $5,463.01 in attorney’s fees and other expenses from the Defendant Commissioner of Social Security. The Commissioner has filed no response to the motion despite being given the opportunity, the deadline to do so has passed, and the motion is now under submission. See (Doc. 31); S.D. Ala. CivLR 7(c). Upon consideration, the Court finds the Plaintiff’s motion for attorney’s fees under EAJA (Docs. 29, 30) is due to be GRANTED in part and DENIED in part.1 I. Analysis "The EAJA provides that the district court'shall award to the prevailing party other than the United States fees and other expenses... incurred by that party in any 1 With the consent of the parties, the Court has designated the undersigned Magistrate Judge to conduct all proceedings and order the entry of judgment in this civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See Docs. 17, 18). Case 2:16-cv-00210-N Document 32 Filed 09/26/17 Page 2 of 9 civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States..., unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.’ " Newsome v. Shalala, 8 F.3d 775, 777 (11th Cir. 1993) (quoting 28 U.S.C. § 2412(d)(1)(A)-(B)) (footnotes omitted). "Thus, eligibility for a fee award in any civil action requires: (1) that the claimant be a'prevailing party’; (2) that the Government's position was not'substantially justified’; (3) that no'special circumstances make an award unjust’; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement." Comm'r, I.N.S. v. Jean, 496 U.S. 154, 158 (1990). a. Timeliness "The Equal Access to Justice Act (‘EAJA"’) provides that a'party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses...." 28 U.S.C. § 2412(d)(1)(B) (1982). It is settled that a'final judgment’ means that the judgment is final and not appealable. 28 U.S.C. § 2412(d)(2)(G)." United States v. J.H.T., Inc., 872 F.2d 373, 375 (11th Cir. 1989). Where, as here, "the district court enters a'sentence four’ remand order[under 42 U.S.C. § 405(g)], that judgment is appealable." Newsome, 8 F.3d at 778. "[W]hen a remand was pursuant to sentence four, the 30–day filing period for applications for EAJA fees'begins after the final judgment (‘affirming, modifying, or reversing’) is entered by the [district] court and the appeal period has run, Case 2:16-cv-00210-N Document 32 Filed 09/26/17 Page 3 of 9 so that the judgment is no longer appealable.’ " Id. (quoting Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)). Because a United States officer sued in an official capacity is a party to this action, the time to appeal that judgment expired after 60 days from May 10, 2017, the date the Court entered its "sentence four" remand order and judgment (Docs. 27, 28). See Fed. R. App. P. 4(a)(1)(B). Because the 60th day after that date fell on July 9, 2017, a Sunday, the judgment became no longer appealable after Monday, July 10, 2017. See Fed. R. App. P. 26(a)(1)(C). Because the Plaintiff filed his motion within 30 days of that date, on August 7, 2017, the motion is timely.2 b. Prevailing Party With certain inapplicable exceptions, an individual qualifies as a "party" under EAJA if the individual’s "net worth did not exceed $2,000,000 at the time the civil action was filed." 28 U.S.C. § 2412(d)(2)(B). The Plaintiff has submitted a 28 U.S.C. § 1746 2 Past Eleventh Circuit precedent treated the timely filing requirement for an EAJA motion as jurisdictional in nature. See, e.g., Newsome, 8 F.3d at 777. This precedent, however, appears to have been abrogated by the Supreme Court’s decision in Scarborough v. Principi, 541 U.S. 401, 413-14 (2004) ("§ 2412(d)(1)(B) does not describe what classes of cases the C[ourt of Appeals for Veterans Claims] is competent to adjudicate; instead, the section relates only to postjudgment proceedings auxiliary to cases already within that court's adjudicatory authority. Accordingly,…the provision's 30–day deadline for fee applications and its application-content specifications are not properly typed'jurisdictional.’ " (citation and some quotation marks omitted)). Cf. Townsend v. Comm'r of Soc. Sec., 415 F.3d 578, 581–82 (6th Cir. 2005) ("[O]ur past precedent characterized the EAJA's time limitation for fee applications as jurisdictional…This precedent, however is overruled by the Supreme Court's recent decision in Scarborough v. Principi, 541 U.S. 401, 124 S. Ct. 1856, 158 L. Ed. 2d 674 (2004), where the Supreme Court held that the EAJA's'30–day deadline for fee applications and its application-content specifications are not properly typed "jurisdictional."' Id. at 1865."). Because the Plaintiff’s EAJA motion was timely filed, however, the Court need not decide the issue. Case 2:16-cv-00210-N Document 32 Filed 09/26/17 Page 4 of 9 declaration averring that "[a]t the time that this action was begun, [her] net worth was less than $2,000,000.00" (Doc. 30-5 at 2), and the Commissioner does not dispute this assertion. Accordingly, the Plaintiff qualifies as a "party" for purposes of the EAJA. See 28 U.S.C. § 2412(d)(2)(B). Because the Plaintiff received a remand of a final decision of the Commissioner under sentence four of 42 U.S.C. § 405(g), she is thus a "prevailing" party under EAJA. See Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993); Newsome, 8 F.3d at 777 ("Courts have routinely awarded EAJA attorney’s fees to claimants in Social Security cases who satisfy the statutory conditions."); Myers v. Sullivan, 916 F.2d 659, 666 (11th Cir. 1990) ("Since the EAJA’s enactment, the vast majority of EAJA awards have gone to claimants who succeeded in challenging contrary benefits decisions made by the Secretary of Health and Human Services."). c. Substantially Justified Position or Special Circumstances An EAJA applicant is only required to allege that the Government’s position was "not substantially justified." Scarborough v. Principi, 541 U.S. 401, 414-15 (2004). "The burden of establishing that the position of the United States was substantially justified…must be shouldered by the Government." Id. at 414. "The government’s position is substantially justified under the EAJA when it is justified to a degree that would satisfy a reasonable person—i.e. when it has a reasonable basis in both law and fact." United States v. Jones, 125 F.3d 1418, 1425 (11th Cir. 1997) (citations and quotations omitted). The Plaintiff has alleged "the Commissioner was not substantially justified." Case 2:16-cv-00210-N Document 32 Filed 09/26/17 Page 5 of 9 (Doc. 30-6 at 2). The Commissioner has not attempted to rebut that allegation, and there are no special circumstances apparent from the record which countenance against the awarding of fees. Thus, the Court finds that the Plaintiff is entitled to an award of fees under EAJA. d. Amount of Fees The EAJA further provides: The amount of fees awarded... shall be based upon prevailing market rates, for the kind and quality of services furnished except that... (ii) attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A)(ii) (emphasis added). In Meyer v. Sullivan, 958 F.2d 1029, 1033 (11th Cir. 1992), [this Circuit] recognized a two-step process for determining the appropriate hourly rate to be applied in calculating attorney's fees under the Act. First, the district court must "determine the market rate for'similar services [provided] by lawyers of reasonably comparable skills, experience, and reputation.’ " Id. (citation omitted). "The second step, which is needed only if the market rate is greater than [$125] per hour, is to determine whether the court should adjust the hourly fee upward from [$125] to take into account an increase in the cost of living, or a special factor." Id. at 1033-34. Brungardt v. Comm'r of Soc. Sec., 234 F. App'x 889, 891 (11th Cir. 2007) (per curiam) (unpublished). The Plaintiff requests a total EAJA award of $5,463.01, which is based upon 24.2 hours of federal court work performed by Plaintiff’s counsel at a rate of $191.86 per hour, and 8.2 hours of federal court work performed by Plaintiff’s counsel’s paralegals at Case 2:16-cv-00210-N Document 32 Filed 09/26/17 Page 6 of 9 a rate of $100.00 per hour.3 (Doc. 24 at 1 (footnote omitted)). After reviewing the itemized timesheets of Plaintiff’s counsel and his paralegals (Docs. 30-2, 30-3, 30-4), the Court finds the number of hours billed by both counsel and paralegals to be reasonable. The Court further finds that counsel’s requested attorney rate of $191.85 is an appropriate market rate for similar services provided by lawyers of reasonably comparable skills, experience, and reputation.4 Though counsel’s rate exceeds $125, this upward adjustment is justified under the formula from this Court’s decision in Lucy v. Astrue, which is often used to account for increases in the cost of living for EAJA applications. The prevailing market rate for social security cases in the Southern District of Alabama has been adjusted to take into account an increase in the cost of living. Lucy v. Astrue, CV 06–147–C, 2007 U.S. Dist. LEXIS 97094 (S.D. Ala. July 5, 2007). In Lucy, the following formula, based on the CPI, was utilized: ($125/hour) x (CPI–U[5] Annual Average "All Items Index," South Urban, for month and year of temporal midpoint)/152.4, where 152.4 equals the CPI–U of March 1996, the month and year in which the $125 cap was enacted. Id. at *12. The "temporal midpoint" is calculated by counting the number of days from the date that the claim was filed to the date of the Magistrate 3 "[A] prevailing party that satisfies EAJA’s other requirements may recover its paralegal fees from the Government at prevailing market rates." Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 590 (2008). 4 "The court…is itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value." Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988) (quotation omitted). 5 Consumer Price Index for All Urban Consumers, as determined by the Bureau of Labor Statistics of the United States Department of Labor (https://www.bls.gov/cpi/tables.htm (last visited Sept. 14, 2017)). Case 2:16-cv-00210-N Document 32 Filed 09/26/17 Page 7 of 9 or District Judge's Order and Judgment. Id. at *5–6. Winters v. Astrue, Civil Action No. 11-00261-CB-B, 2012 WL 1565953, at *2 (S.D. Ala. Apr. 9, 2012), report and recommendation adopted, 2012 WL 1556652 (S.D. Ala. Apr. 30, 2012). The Complaint in this action was filed on May 12, 2016, and the Court’s sentence-four remand order and judgment were entered on May 10, 2017. The number of days between those two dates (i.e. excluding the start and end dates) is 362, and the "temporal midpoint" between those two dates falls in November 2016. The relevant CPI–U for November 2016 was 234.029. Plugging the relevant numbers into the foregoing formula renders the following equation: ($125 x 234.029)/152.4. This calculation yields an hourly rate adjusted for "cost of living" increases of $191.95. The Plaintiff’s counsel has billed at a slightly lower rate of $191.86, and the Court finds this to be an appropriate hourly rate under EAJA to take into account increases in cost of living. However, the timesheet showing the work performed solely by attorneys (Doc. 30-3) indicates that Howard Olinsky, Esq., the Plaintiff’s only counsel of record in this action, performed only 2.4 hours of billed time, while the remainder was performed by other attorneys – Paul Eaglin, Marisa Burkett, and Alyssa Van Auken – who have not appeared in this action. None of those three attorneys has been admitted to the Bar of this Court, see S.D. Ala. GenLR 83.3(a)-(b), nor have they ever moved for pro hac vice admission under S.D. Ala. GenLR 83.3(d), as Olinsky did (see Docs. 4, 5). Generally, "unless appearing pro se,…all parties to proceedings in this Court must appear by an Case 2:16-cv-00210-N Document 32 Filed 09/26/17 Page 8 of 9 attorney admitted to practice in this Court." S.D. Ala. GenLR 83.2 (emphasis added). The Eleventh Circuit recently affirmed a decision of the District Court for the Southern District of Florida to reduce Olinsky’s and Eaglin’s EAJA fees by compensating them at paralegal rates, rather than attorney rates, when they had not been admitted to practice in that court under local rules similar to those of this Court. See Zech v. Comm'r of Soc. Sec., 680 F. App'x 858 (11th Cir. Feb. 23, 2017) (per curiam) (unpublished) (citing Priestley v. Astrue, 651 F.3d 410 (4th Cir. 2011)). Exercising discretion, the undersigned will do the same for the non-admitted attorneys who performed 21.8 hours of work in the present case. The Plaintiff has requested a paralegal billing rate of $100 per hour. However, the Plaintiff has submitted no evidence to support the reasonableness of this billing rate, and "[i]n this district, paralegal work is consistently charged at a rate of $75/hour." Brown v. Boeing Co., Civil Action No. 12-0414-CG-C, 2012 WL 6045924, at *4 (S.D. Ala. Dec. 4, 2012) (Granade, J.) (citing cases). Thus, the Court will award the Plaintiff $615 for the 8.2 hours of work performed by the paralegals, $1,635 for the 21.8 hours of work performed by the non-admitted attorneys, and $460.46 for the 2.4 hours of work performed by admitted attorney Olinsky, for a total EAJA award of $2,710.46.6 6 The Plaintiff’s motion requests the Court also order that, "[i]f the Plaintiff has no debt registered with the Department of Treasury subject to offset that the fees be made payable to the attorney" (Doc. 30 at 4), as the Plaintiff has "agree[d] to waive direct payment of the EAJA fees and assign said fees to be paid directly to [her] attorney." (Doc. 30-5 at 2). EAJA fees are awarded to litigants, rather than to their attorneys, Case 2:16-cv-00210-N Document 32 Filed 09/26/17 Page 9 of 9 II. Conclusion In accordance with the foregoing analysis, it is ORDERED that the Plaintiff’s unopposed motion for attorney’s fees (Docs. 29, 30) is GRANTED in part and DENIED in part, such that Plaintiff MARY DENISE BURTON is awarded from the Defendant Commissioner of Social Security $2,710.46 in fees and other expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412.7 DONE and ORDERED this the 26th day of September 2017./s/Katherine P. Nelson KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE which "thus subjects them to a federal administrative offset if the litigant has outstanding federal debts." Astrue v. Ratliff, 560 U.S. 586, 593 (2010). The Plaintiff’s "assignment of h[er] right in the fees award to counsel does not overcome the clear EAJA mandate that the award is to h[er] as the prevailing party, and the fees belong to h[er]." Brown v. Astrue, 271 F. App'x 741, 743-44 (10th Cir. 2008) (unpublished). Moreover, "the private contractual arrangement between [the Plaintiff] and h[er] counsel [i]s a collateral matter the district court d[oes] not need to address when considering [an] EAJA fees motion." Id. at 744. See also Panola Land Buying Ass'n v. Clark, 844 F.2d 1506, 1511 (11th Cir. 1988) ("Historically, the client and the lawyer make their fee arrangement, and the lawyer looks to the client for payment of the legal fee…In enacting the EAJA, Congress recognized and maintained the attorney-client relationship as it has existed throughout our history."); Oguachuba v. I.N.S., 706 F.2d 93, 97 (2d Cir. 1983) ("Whether an award of attorneys' fees under [EAJA] ultimately redounds to the benefit of counsel depends upon the private contractual arrangements between the attorney and the client."). Accordingly, the Court declines to order than any portion of the fee awarded herein be paid directly to the Plaintiff’s counsel. 7Unless a party requests one by motion, no separate judgment regarding attorney’s fees shall be forthcoming. See Fed. R. Civ. P. 58(a)(3) (judgment need not be set out in a separate document for an order disposing of a motion for attorney’s fees).

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Description
1
05/12/2016
COMPLAINT against Carolyn W. Colvin (IFP.), filed by Mary Denise Burton.
1
Exhibit A: Notice of Appeals Council Action
2
Civil Cover Sheet
3
Proposed Summons
4
Proposed Summons
5
Proposed Summons
5 Attachments
2
05/12/2016
MOTION for Leave to Proceed in forma pauperis by Mary Denise Burton.
3
05/12/2016
MOTION for Howard D. Olinsky to Appear Pro Hac Vice (Filing fee $ 50, Receipt number 1128-1899183, Online Credit Card Payment.) by Mary Denise Burton.
1
Certificate of Good Standing
2
Text of Proposed Order
2 Attachments
05/12/2016
MOTIONS REFERRED: 2 MOTION for Leave to Proceed in forma pauperis referred to Judge Katherine P. Nelson. (Text entry; no document attached.)
4
05/13/2016
Amended MOTION for Howard D. Olinsky to Appear Pro Hac Vice by Mary Denise Burton.
1
Certificate of Good Standing
2
https://ecf.alsd.uscourts.gov/doc1/02112334245" onClick="goDLS{{'/doc1/02112334245','59340','17','','2','1','',''}};">2</a> Text of Proposed Order) Modified on 5/13/2016
2 Attachments
05/13/2016
MOTIONS REFERRED: 3 MOTION for Howard D. Olinsky to Appear Pro Hac Vice, 4 Amended MOTION for Howard D. Olinsky to Appear Pro Hac Vice referred to Judge Katherine P. Nelson. (Text entry; no document attached.)
5
05/13/2016
ENDORSED ORDER granting 4 Motion to Appear Pro Hac Vice. Signed by Magistrate Judge Katherine P. Nelson on 5/13/2016.
6
05/13/2016
ORDER GRANTING Plf's 2 Motion for Leave to Proceed in forma pauperis as set out. Clerk is directed to serve a summons, along w/the Complaint, on Dft as set out. Signed by Magistrate Judge Katherine P. Nelson on 5/13/2016.
7
05/16/2016
Summons Issued as to Carolyn W. Colvin (SSA, U.S. Attny Gen, & U.S. Attny). (Attachment: # 1 Cert. Mail Receipts)
8
05/16/2016
SOCIAL SECURITY SCHEDULING ORDER entered; Answer due within 90 days after service; Plaintiff's Brief due 30 days thereafter. Signed by Magistrate Judge Katherine P. Nelson on 5/16/2016. (copy to U.S. Attny w/summons on 5/1616)
9
05/23/2016
Return of Service Executed as to Carolyn W. Colvin; U.S. Attny served on 5/17/2016, answer due 8/15/2016.
10
06/01/2016
NOTICE of Appearance by Patricia Nicole Beyer on behalf of Carolyn W. Colvin
11
05/31/2016
Return of Service, United States Attorney General served 5/23/16.
12
06/06/2016
Return of Service, Commissioner of Social Security, Office of General Counsel, served 5/31/16.
13
08/11/2016
MOTION for Extension of Time to File Answer re 1 Complaint, by Carolyn W. Colvin.
08/11/2016
MOTIONS REFERRED: 13 MOTION for Extension of Time to File Answer referred to Judge Katherine P. Nelson. (Text entry; no document attached.)
14
08/12/2016
ENDORSED ORDER granting unopposed 13 Motion for Extension of Time to Answer; Answer due from Carolyn W. Colvin on 10/7/2016. Signed by Magistrate Judge Katherine P. Nelson on 8/12/2016.
15
10/07/2016
ANSWER filed by Carolyn W. Colvin.
16
10/07/2016
SOCIAL SECURITY TRANSCRIPT (Attorney Daniel Balsam added). Social Security Brief due by 11/7/2016.
17
10/27/2016
CONSENT to Jurisdiction by US Magistrate Judge by Mary Denise Burton. Modified on 10/27/2016
18
10/27/2016
ENDORSED ORDER REFERRING CASE to Magistrate Judge Katherine P. Nelson. IT IS HEREBY ORDERED that this case be referred to the United States Magistrate Judge, to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. 636(c) and Fed.R.Civ.P.73. Signed by Senior Judge Callie V. S. Granade on 10/27/2016.
19
11/07/2016
Social Security Brief filed by Plaintiff Mary Denise Burton. Social Security Brief due by 12/22/2016.
20
11/07/2016
Fact Sheet for Social Security Appeals by Mary Denise Burton.
21
12/20/2016
MOTION for Extension of Time to File Response/Reply as to 19 Social Security Brief - Plaintiff by Carolyn W. Colvin.
22
12/20/2016
ENDORSED ORDER granting 21 Unopposed Motion for Extension of Time to File Response to Plaintiff's brief. Response due by 2/6/2017. Signed by Magistrate Judge Katherine P. Nelson on 12/20/2016.
23
02/06/2017
Social Security Brief filed by Defendant Carolyn W. Colvin.
24
02/07/2017
Order Setting Social Security Hearing: Social Security Hearing set for 3/9/2017 11:00 AM in US Courthouse, Courtroom 3B, 113 St. Joseph Street, Mobile, AL 36602 Magistrate Judge Katherine P. Nelson. Signed by Magistrate Judge Katherine P. Nelson on 2/7/2017.
25
02/07/2017
Joint Motion for Waiver of Oral Argument by Mary Denise Burton.
26
02/08/2017
ENDORSED ORDER granting 25 Joint Motion for Waiver of Oral Argument. The hearing set for 3/9/2017 11:00 AM (see 24) is CANCELED, and this action is now under submission on the parties' briefs and the administrative record. Signed by Magistrate Judge Katherine P. Nelson on 2/8/2017.
27
05/10/2017
MEMORANDUM OPINION AND ORDER that the Commissioner's decision denying plaintiff's disability is REVERSED and REMANDED under sentence four of 42 U.S.C. � 405(g) for further proceedings. Signed by Magistrate Judge Katherine P. Nelson on 5/10/2017.
28
05/10/2017
JUDGMENT in favor of plaintiff Mary Denise Burton and against defendant Carolyn W. Colvin. Signed by Magistrate Judge Katherine P. Nelson on 5/10/2017.
29
08/07/2017
MOTION for Attorney Fees Under the Equal Access to Justice Act Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Mary Denise Burton.
30
08/07/2017
AFFIDAVIT in Support re [29] MOTION for Attorney Fees Under the Equal Access to Justice Act Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Mary Denise Burton.
1
Exhibit A CPI Table
2
Exhibit B All Professional Time
3
Exhibit C Attorney Time
4
Exhibit D Paralegal Time
5
Exhibit E Affirmation and Waiver of Direct Payment of EAJA Fees
6
Memorandum in Support
7
Certificate of Service
7 Attachments
31
08/08/2017
TEXT-ONLY ORDER Setting Motion Deadlines re: 30 Affidavit in Support of Motion, filed by Mary Denise Burton, 29 MOTION for Attorney Fees Under the Equal Access to Justice Act Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Mary Denise Burton. Responses must be filed and served by Mon. 8/21/2017. Replies to responses must be filed and served by Mon. 8/28/2017. Motion to be taken under submission on Tues. 8/29/2017. Once the motion is taken under submission, no further submissions related to the issues raised may be filed unless the proponent obtains leave of court for good cause shown. Should the Court determine that oral argument would be beneficial, a hearing will be set by separate order. Otherwise, this motion is being submitted without oral argument. See Fed. R. Civ. P. 78(b); S.D. Ala. CivLR 7(h). "Oral argument requests must contain specific reasons why oral argument would be helpful." S.D. Ala. CivLR 7(h). Signed by Magistrate Judge Katherine P. Nelson on 8/8/2017.
32
09/26/2017
MEMORANDUM OPINION AND ORDER granting in part and denying in part [29] Motion for Attorney Fees (EAJA); plaintiff is awarded $2,710.46 in fees and other expenses. Signed by Magistrate Judge Katherine P. Nelson on 9/26/17.
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