Dallas v. Commissioner of Social Security Administration
Court Docket Sheet

District of Arizona

2:2016-cv-01392 (azd)

RESPONSE BRIEF by Commissioner of Social Security Administration.

Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 1 of 26 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Lars J. Nelson Special Assistant United States Attorney 4 Office of the General Counsel Social Security Administration 5 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 6 State Bar No. MN0389274 Fax: (206) 615-2531 7 lars.nelson@ssa.gov Telephone: (206) 615-2732 8 Of Attorneys for the Defendant 9 IN THE UNITED STATES DISTRICT COURT 10 DISTRICT OF ARIZONA 11 Annette M Dallas, No. CV-16-01392-PHX-JJT 12 Plaintiff, DEFENDANT’S RESPONSIVE 13 vs. BRIEF 14 Nancy A. Berryhill,1 Acting Commissioner of Social Security, 15 Defendant. 16 INTRODUCTION 17 Plaintiff Annette M. Dallas brings this action challenging Defendant 18 Commissioner of Social Security’s final decision that she is not "disabled" under 19 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. 20 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 21 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). 22 23 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 2 of 26 1 42 U.S.C. § 1382c(a)(3). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). 2 Dallas seeks an order reversing the Administrative Law Judge’s (ALJ) decision and 3 remanding for an award of benefits or, in the alternative, remanding for further 4 proceedings.2 ECF No. 17 at 23. For the reasons set forth below, the Commissioner 5 requests the Court enter judgment affirming the ALJ’s decision, pursuant to 42 U.S.C. 6 § 405(g). In the Argument section below, the Commissioner will respond to Dallas’s 7 contentions, and discuss and provide citation to the relevant facts. 8 BACKGROUND 9 The ALJ’s findings constitute the relevant facts in this matter by Congress’s 10 designation of the Commissioner as the sole fact finder. See 42 U.S.C. §§ 405(b)(1), 11 405(g). The Findings of ALJ are found Administrative Record (Tr.) pages 21 to 34. 12 ISSUES 13 I. Is the ALJ’s residual functional capacity (RFC) assessment supported by substantial evidence? 14 A. Did the ALJ provide valid reasons for discounting Hickle’s subjective complaints? 15 B. Did ALJ provide valid reasons for the weight the ALJ assigned to opinions from 16 acceptable medical sources? 17 C. Did the ALJ provide germane reasons for the weight the ALJ assigned to the 18 opinions of Dallas’s husband and treating nurse practitioner? 19 2 Reversing for an "award of benefits" is actually a misnomer because there are numerous unadjudicated issues that may prevent a person who is otherwise "disabled" 20 from receiving benefits. For example, a Title XVI claimant may not get Supplemental Security Income (SSI) for which she is otherwise eligible because she has become a 21 resident of public institution. See 20 C.F.R. § 416.211; see also, e.g., 20 C.F.R. §§ 416.207-.216,.525. 22 23 2 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 3 of 26 1 II. Is the ALJ’s finding at step five, that Dallas can perform other work in the national 2 economy, supported by substantial evidence? 3 III. In the unlikely event that reversal is warranted, should this matter be remanded for further administrative proceedings in lieu of a finding of disability? 4 STANDARD OF REVIEW 5 The Social Security Act defines a "disability" as the "inability to engage in any 6 substantial gainful activity by reason of any medically determinable physical or mental 7 impairment which can be expected to result in death or which has lasted or can be 8 expected to last for a continuous period of not less than 12 months." 42 U.S.C. 9 § 423(d)(1)(A). 10 When reviewing the "final decision," as embodied by the five-step sequential 11 evaluation process for assessing disability, Barnhart v. Thomas, 540 U.S. 20, 24-25 12 (2003), the Court must answer two questions: (1) Are the ALJ’s factual findings 13 supported by substantial evidence, and (2) Did the ALJ apply the correct legal standards? 14 Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). If the Court answers "no" to a 15 question, then the Court must consider whether the ALJ’s errors are "consequential to the 16 ultimate nondisability determination," id. at 1122 (quotation omitted), because the Court 17 "may not reverse an ALJ’s decision on account of an error that is harmless," id. at 1111. 18 As to the first question, substantial evidence "means such relevant evidence as a 19 reasonable mind might accept as adequate to support a conclusion." Richardson v. 20 Perales, 402 U.S. 389, 401 (1971) (quotation omitted). "This is something less than the 21 weight of the evidence, and the possibility of drawing two inconsistent conclusions from 22 23 3 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 4 of 26 1 the evidence does not prevent an administrative agency’s finding from being supported 2 by substantial evidence." Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966). 3 When reviewing the ALJ’s decision, "[e]ven when an agency'explains its decision with 4'less than ideal clarity,’ [the court] must uphold it'if the agency’s path may reasonably 5 be discerned.’" Molina, 674 F.3d at 1121 (quoting Alaska Dep’t of Envtl. Conservation v. 6 E.P.A., 540 U.S. 461, 497 (2004)). 7 As to the second question, disagreement with the Commissioner’s interpretation of 8 the Social Security Act and the implementing regulations requires a finding that the 9 Commissioner’s interpretation is arbitrary, capricious, or manifestly contrary to the 10 statute. Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2021, 2033 (2012) (statutes); Lyng v. 11 Payne, 476 U.S. 926, 938-39 (1986) (regulations). This Court must apply the 12 Commissioner’s interpretation absent explicit, contrary binding precedent. Nat’l Cable & 13 Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982-83 (2005). 14 Barring an "exceptional case in which review is needed to prevent a miscarriage of 15 justice," a claimant waives an issue by failing to raise it to the district court in his opening 16 brief. Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006). As to the Commissioner, 17 the doctrine from S.E.C. v. Chenery, 332 U.S. 194, 196 (1947), is not violated when the 18 Commissioner (1) explains why the ALJ’s actions are consistent with the Social Security 19 Act and the regulatory scheme, Nat’l R.R. Passenger Corp. v. Boston & Maine Corp., 20 503 U.S. 407, 419-20 (1992); (2) cites specific records within the "administrative record" 21 to explain why the ALJ’s finding is sustainable, Camp v. Pitts, 411 U.S. 138, 143 (1973); 22 or (3) directs the court to "additional support" for the ALJ’s decision rather than 23 4 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 5 of 26 1 "invent[ing] a new ground for the decision," Warre v. Comm’r of Soc. Sec. Admin., 439 2 F.3d 1001, 1005 n.3 (9th Cir. 2006). 3 ARGUMENT 4 I. The ALJ’s RFC assessment is supported by substantial evidence. 5 There is no dispute that Dallas had severe physical and mental impairments 6 including as follows: 7 chiari malformation, status post surgery; spinal stenosis of the lumbar region; degenerative disc disease with displacement of lumbar without 8 myelopathy; post laminectomy syndrome of the cervical region; cervical radiculitis with radiculopathy, myalgia, and myositis; chronic pain 9 syndrome; cervical arthropathy; post-traumatic stress disorder (PTSD); bilateral shoulder arthropathy; morbid obesity; and depression. 10 Tr. 23. Dallas challenges the ALJ’s weighing of medical and lay opinions and her 11 subjective complaints. See generally ECF No. 17 at 13-22. Thus, the primary issue 12 presented for this Court’s review is the ALJ’s RFC assessment. This because the RFC 13 assessment includes consideration of "all the relevant evidence in [a] case record," 14 including "statements about what you can still do that have been provided by medical 15 sources" and "descriptions and observations of your limitations from your impairment(s), 16 including limitations that result from your symptoms, such as pain, provided by [the 17 claimant]." 20 C.F.R. § 416.945(a)(1),.945(a)(3). 18 As set forth below, the ALJ’s RFC assessment was reasonable and supported by 19 substantial evidence even if some of the evidence in the record conflicts. The Supreme 20 Court recognized conflicts in the evidence are "not uncommon situation[s]" in disability 21 appeals and "[t]he trier of fact has the duty to resolve th[ose] conflict[s]." Richardson, 22 23 5 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 6 of 26 1 402 U.S. at 399. Thus, the Ninth Circuit has explained that "[i]t is the ALJ’s role to 2 resolve evidentiary conflicts" and "[i]f there is more than one rational interpretation of 3 the evidence, the ALJ’s conclusion must be upheld." Allen v. Sec’y of Health & Human 4 Servs., 726 F.2d 1470, 1473 (9th Cir. 1984) (citing Richardson, 402 U.S. at 399). 5 A. Substantial evidence supports the ALJ’s assessment of Dallas’s subjective complaints. 6 "[Q]uestions of credibility and resolutions of conflicts in the testimony are 7 functions solely of the [ALJ]."3 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 8 599 (9th Cir. 1999). The Social Security Act, 42 U.S.C. § 405(b)(1), and the 9 Commissioner’s regulations require only that the decision "contain specific reasons for 10 the weight given to the individual’s symptoms, be consistent with and supported by the 11 evidence, and be clearly articulated so the individual and any subsequent reviewer can 12 assess how the adjudicator evaluated the individual’s symptoms."4 SSR 16-3p, 2016 WL 13 14 3 Under new SSR 16-3p, 2016 WL 1119029, at *1, the Commissioner no longer uses the term "credibility." SSR 16-3p has an effective date of March 28, 2016. See SSR 15 16-3p, 2016 WL 1237954 (correcting effective date). Thus, it is inapplicable to the present matter. See Garner v. Colvin, 626 F. App’x 699, 701 (9th Cir. 2015) 16 (unpublished) (holding that SSR 13-2p, 2013 WL 621536, did not apply because it was not in effect at the time of the ALJ’s decision and, alternatively, the claimant did not 17 show the ALJ’s analysis conflicted with SSR 13-2p). Nevertheless, all of the reasons provided by the ALJ for discounting Dallas’s subjective complaints stem from the 18 regulations. Thus, there is no conflict with SSR 16-3p. See SSR 16-3p, 2016 WL 1119029, at *1 (stating that the purpose of SSR 16-3p is to "more closely follow our 19 regulatory language regarding symptom evaluation"). 4 Notably, under this standard, the ALJ is not required to discuss every factor that 20 the ALJ considered when assessing subjective complaints. See Willyard v. Colvin, 633 F. App’x 369, 370 (9th Cir. 2015) (unpublished) (explaining that "an ALJ need not discuss 21 each of the seven factors..." of the subjective complaint regulations; rather, the court must simply review the reasons provided by the ALJ). 22 23 6 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 7 of 26 1 1119029, at *9; see also SSR 96-7p, 1996 WL 374186, at *4 (superseded by SSR 16-3p) 2 (same); SSR 82-58, 1982 WL 31378, at *3 (superseded by subsequent SSRs) ("The RFC 3 assessment must convey the reason(s) why the alleged or reported symptom-related 4 functional limitation is not supported by the evidence"). 5 The Ninth Circuit has established that if a claimant has an underlying impairment 6 that could reasonably be expected to produce the symptoms alleged, and there is no 7 evidence of malingering, an ALJ may discredit the claimant’s subjective pain testimony 8 only by providing "specific, clear, and convincing reasons" for doing so. 5 See, e.g., 9 Garrison, 759 F.3d at 1014-15. 10 As set forth below, because the ALJ provided multiple reasons for discounting 11 Dallas’s subjective complaints, an error would harmless if valid reasons remain. See 12 Molina, 674 F.3d at 1115 (collecting cases). 13 1. Dallas’s daily activities undermine her subjective complaints. 14 An ALJ must consider a claimant’s daily activities when assessing her subjective 15 complaints. 20 C.F.R. § 416.929(c)(3)(i). In this Circuit, there are two bases for using 16 daily activities to discount subjective complaints. Orn v. Astrue, 495 F.3d 625, 639 (9th 17 Cir. 2007). First, an ALJ can reasonably rely on activities that are transferrable to work. 18 Id. Second, an ALJ may reasonably discount a claimant’s subjective complaints where 19 5 In light of the Commissioner’s longstanding interpretation of the Social Security Act, the Commissioner disagrees that the "clear and convincing reasons" standard is 20 consistent with the Social Security Act. The Supreme Court unambiguously stated that it is "[not] appropriate to substitute for the formula that Congress has adopted any judicially 21 crafted revision of it." Pierce v. Underwood, 487 U.S. 552, 565 (1987). The ALJ’s rationale here satisfied either standard. 22 23 7 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 8 of 26 1 the claimant engaged in activities inconsistent with the alleged symptoms. Id.; Garrison, 2 759 F.3d at 1016. Both rationale are applicable here. 3 First, the ALJ could reasonably infer that some of the abilities needed to perform 4 Dallas’s daily activities are the same as those necessary for maintaining employment. Tr. 5 26. For example, the abilities to drive, pay bills, read, and use the computer have are 6 skills required for various types of jobs. Tr. 26, 190-91. Without citation to the record, 7 Dallas argues that she could not perform these activities on a regular continuing basis. 8 ECF No. 17 at 19-20. But, the Ninth Circuit has said that it will not "second guess" an 9 ALJ’s reasonable interpretation of activities where the claimant is "equivocal about how 10 regularly she [is] able to keep up with all of [her] activities." Rollins v. Massanari, 261 11 F.3d 853, 857 (9th Cir. 2001); see also Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th 12 Cir. 1990) (explaining that the ALJ was not required to accept the claimant’s "self-13 serving statements that cannot be verified" regarding activities (quotation omitted)). 14 Second, the ALJ could reasonably infer that Dallas’s daily activities conflicted 15 with her subjective complaints. Tr. 26. For example, Dallas reported that she had 16 difficulty concentrating, understanding, and remembering, Tr. 26, 192; however, Dallas 17 was able to cooked for herself, drive by herself, pay bills, read, and use the computer, 18 Tr. 26, 48, 189-91. This matter is analogous to Toriello v. Colvin, 656 F. App’x 845, 847 19 (9th Cir. 2016) (unpublished), in which the Ninth Circuit recently found that using a 20 computer, performing personal care, preparing meals, driving, and handling money, 21 among other activities, conflicted with allegations that the claimant had memory and 22 concentration difficulties. Obviously, Dallas activities do not undermine every one of her 23 8 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 9 of 26 1 alleged limitations. But, the ALJ provided other reasons that reach these other limitations 2 and "[e]ven where [a claimant’s] activities suggest some difficulty functioning, they may 3 be grounds for discrediting the claimant’s testimony to the extent that they contradict 4 claims of a totally debilitating impairment." Molina, 674 F.3d at 1113. 5 2. Dallas’s treatment history undermine her subjective complaints. 6 The ALJ is required to consider the treatment that a claimant has received when 7 assessing her subjective complaints. 20 C.F.R. § 416.929(c)(3)(iv)-(v). Thus, the Ninth 8 Circuit has held that responding "favorably to conservative treatment" undermines a 9 claimant’s subjective complaints. Tommasetti v. Astrue, 533 F.3d 1035, 1040 10 (9th Cir. 2008). The ALJ found Dallas’s treatment has been routine and conservative in 11 nature, and has not included "aggressive treatment," such as "in-patient psychiatric 12 hospitalization." Tr. 26. The ALJ’s finding is supported by substantial evidence. Dallas 13 reported improvement since starting anti-depressants. Tr. 30, 341, 346. Objective 14 examinations confirmed normal memory, judgment, and insight. Tr. 30, 376, 429. 15 Indeed, these normal findings are found throughout the record.6 See, e.g., Tr. 274, 278, 16 282, 287, 294, 298, 302, 307, 312, 317, 321, 326, 330, 335, 339, 343, 348, 352, 357, 362, 17 366, 371, 376, 433, 438, 443. 18 The ALJ also found that Dallas’s pain treatment was conservative. Tr. 27-28. 19 6 Dallas’s sporadic reports of a depressed mood are not objective medical findings. See Robert P. Roca, M.D., M.P.H., Determining Decisional Capacity: A Medical 20 Perspective, 62 Fordham L. Rev. 1177, 1179 (1994) (explaining that when assessing mood in a mental status examination, "[t]he examiner asks for a subjective self-report of 21 mood and describes the patient’s objective emotional appearance, or'affect’ (e.g., irritable, indignant, elated)" (emphasis added). 22 23 9 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 10 of 26 1 This finding is reasonable. Indeed, in 2012, Asim Khan, M.D., referred to Dallas’s 2 treatment to-date as "conservative." Tr. 858. In 2013, it was noted that Dallas was not a 3 candidate for surgery. Tr. 29, 791. Dallas described herself as "stable" on her narcotic 4 pain medications. Tr. 29, 837-38, 469; see also Tr. 272. In July 2013, Dr. Khan stated 5 that Dallas’s "function and quality of life appear to be significantly improved with the use 6 of the prescribed pain medications." Tr. 696. 7 Despite Dallas’s allegations that she had difficulty interacting with others, Tr. 26, 8 192, the ALJ noted that Dallas was described as pleasant and interacting appropriately in 9 treatment notes. Tr. 29, 838; Tr. 30, 422. Indeed, this is the prevailing description of 10 Dallas’s demeanor. See, e.g., Tr. 270, 411, 696, 798, 808, 815, 825, 841, 845, 849, 853, 11 856. Dallas’s lack of cooperation was only restricted participating with examinations. 12 Tr. 28, 568. The Ninth Circuit has affirmed that findings that a claimant was 13 "cooperative and pleasant" undermine alleged social limitations. Turner v. Comm’r of 14 Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010). 15 The ALJ noted numerous objective imaging studies, including magnetic resonance 16 imaging studies. Tr. 28-29, 379-402, 548, 598-99, 720-21. The Ninth Circuit has 17 specifically held that it an ALJ is "within [his or] her purview in analyzing and weighing 18 the evidence," including "imaging studies." Redmond v. Colvin, 644 F. App’x 796, 797 19 (9th Cir. 2016) (unpublished). Here, the ALJ’s interpretation of these reports is 20 consistent with the opinions of Lloyd Anderson, M.D., and Melvin Roberts, M.D., who 21 considered imaging studies in rendering their opinions, Tr. 80 (discussing, for example, 22 "SPO ACDF C5-7 and Subocciptal craniectomy and C1 Lami for Chiari Gr I"), 94 23 10 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 11 of 26 1 (noting "11/09/12 MRI[s]"). 2 Finally, the ALJ found that the lack of muscle atrophy undermines Dallas’s 3 subjective complaints. Tr. 27. Dallas accuses the ALJ of playing doctor. ECF No. 17 at 4 20. But, the ALJ is required to consider "all of the evidence presented," including 5 "objective medical evidence. 20 C.F.R. § 416.929(c)(2)-(3). An ALJ may discount 6 subjective complaints that conflict with objective medical evidence where the ALJ also 7 provides other reasons, as here. Rollins, 261 F.3d at 857. The Ninth Circuit has affirmed 8 that a "lack of muscle atrophy and weakness did not support... claims of inactivity." 9 Lasich v. Astrue, 252 F. App’x 823, 825 (9th Cir. 2007) (unpublished); see also Gates v. 10 Colvin, 621 F. App’x 457, 458 (9th Cir. 2015) (unpublished) (explaining a "lack of 11 muscle atrophy directly contradicted [a claimant’s assertion of how much she moved on a 12 daily basis"). The ALJ’s finding is supported by substantial evidence. The record 13 consistently shows substantially normal muscle strength, bulk, and tone. Tr. 352, 412, 14 615, 693, 711, 748, 804, 825, 877, 884; but see Tr. 566, (noting ">4/5 strength" in arms 15 and ">3-4/5" strength in legs), 803 (same). These normal strength findings undermine 16 her complaints that she cannot lift, bend, stand, reach, or walk. Tr. 26, 192. 17 3. Dallas’s inconsistent statements undermine her subjective complaints. 18 An ALJ must consider "any conflicts between [a claimant’s] statements and the 19 rest of the evidence." 20 C.F.R. § 416.929(c)(4). Thus, the Ninth Circuit has affirmed 20 that "conflicting information about her drug and alcohol usage" undermine subjective 21 complaints. Thomas v. Barnhart, 278 F.3d 948, 959 (9th Cir. 2002). The ALJ’s finding 22 here is supported by substantial evidence. In June 2012, Dallas reported that she last 23 11 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 12 of 26 1 used medication a couple of years ago. Tr. 27, 420. In July 2013, Dallas reported using 2 marijuana ("THC") despite her pain contract. Tr. 27, 695. Dallas was told that she 3 would need to find another treatment provider if she used marijuana again. Tr. 695-96 4 Nevertheless, two months later, Dallas tested positive for THC. Tr. 817-18. Contrary to 5 Dallas’s contention, ECF No. 17 at 20, the ALJ was not required to confront her with this 6 evidence at the hearing. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) 7 (explaining that "[t]here is no merit in [the] contention that the ALJ should have given 8 [the claimant] a chance, while at the hearing, to explain the inconsistent statements and 9 other factors that led him to find her not credible"). 10 4. Dallas’s work history undermines her subjective complaints. 11 An ALJ must consider a claimant’s "work record" when assessing her subjective 12 complaints. 20 C.F.R. § 416.929(c)(3). The Ninth Circuit has specifically found that an 13 "extremely poor work history" undermines a claimant’s subjective complaints. Thomas, 14 278 F.3d at 959. The ALJ’s finding here is supported by substantial evidence because 15 since 1996, Dallas has only worked 6 years and has never earned more than $7,000 in any 16 given year. Tr. 27, 160. 17 Dallas argues that her work history is explained by the fact that she has "always 18 suffered from headaches" and gets "irritated at being around people." ECF No. 17 at 20, 19 citing Tr. 45. But, this point actually undermines Dallas’s allegations. Dallas only 20 alleged disability beginning in July 2006.7 Tr. 150. The ability to work in the past 21 7 The ALJ acknowledged this alleged onset date, Tr. 21, but treated November 22 (continued on next page) 23 12 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 13 of 26 1 with an impairment undermines complaints that the impairment has subsequently 2 become disabling. See Greger, 464 F.3d at 972 (upholding credibility finding 3 where "[t]he ALJ noted evidence that after his surgery [the claimant]... was able 4 to continue his past work activities as a contractor’"); Bayliss v. Barnhart, 427 5 F.3d 1211, 1216 (9th Cir. 2005) 6 B. The ALJ provided valid reasons for the weight the ALJ assigned to 7 opinions from acceptable medical sources. 8 1. The ALJ reasonably discounted the opinion of Asipan Khan, M.D. 9 The ALJ assigned "significant weight" to the "testifying" expert Gerald M. 10 Weingarten, M.D., Tr. 31, 885-86. Dr. Weingarten "testified" via interrogatory. Tr. 885-11 86. Dallas had an opportunity to question Dr. Weingarten and request a supplemental 12 hearing. Tr. 259. Dallas availed herself of neither opportunity. Because Dallas could 13 have questioned Dr. Weingarten and requested a subsequent hearing, Dr. Weingarten’s 14 opinion constitutes substantial evidence. Cf. Andrews v. Shalala, 53 F.3d 1035, 1042 15 (9th Cir. 1995) (explaining an opinion subject to examination is substantial evidence). 16 The ALJ also assigned significant weight to the opinion of Bradley H. Werrell, 17 D.O., Tr. 31, 410-16. Because Dr. Werrell’s opinion is supported by his examination 18 findings, it constitutes substantial evidence. See Tonapetyan, 242 F.3d at 1149. 19 The ALJ also assigned the opinions of Lloyd Anderson, M.D., Tr. 31, 79-81, and 20 2011 as the onset date, Tr. 23, because Dallas would not be entitled to SSI prior to this 21 date. See 20 C.F.R. § 416.335 (explaining that SSI payments cannot be made prior to the month the claimant files an application). 22 23 13 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 14 of 26 1 Melvin Roberts, M.D., Tr. 31, 97-99. Because Drs. Anderson and Roberts’s opinions are 2 supported by Werrell’s opinions, see Tr. 76 (discussing "06/2012 S CE"), they constitute 3 substantial evidence. See Tonapetyan, 242 F.3d at 1149. 4 Dr. Khan’s opinion conflicts with the opinions of Drs. Weingarten, Werrell, 5 Anderson, and Roberts. Compare Tr. 833-34. Consequently, Dr. Khan’s opinion was 6 not entitled to controlling weight. See 20 C.F.R. § 416.927(c)(2). Furthermore, because 7 their opinions conflict, the ALJ only needed to provide specific and legitimate reasons for 8 discounting Dr. Khan’s opinion. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996); 9 Widmark v. Barnhart, 454 F.3d 1063, 1066-67 (9th Cir. 2006). As set forth below, the 10 ALJ did so. Because the ALJ provided multiple reasons, any error is harmless if a valid 11 reason remains. See De Guzman v. Astrue, 343 F. App’x 201, 206 n.5 (9th Cir. 2009) 12 (unpublished) (citing Carmickle, 533 F.3d at 1162). 13 First, the ALJ found that Dr. Khan did not provide medically acceptable clinical or 14 diagnostic findings to support the overly functional assessment, and relied on Dallas’s 15 subjective complaints. Tr. 31. The ALJ is required to consider the quality of an opinion, 16 including the extent to which it is supported. See 20 C.F.R. § 416.927(c)(3). The ALJ’s 17 finding is supported by substantial evidence because Dr. Khan only cited diagnoses and 18 subjective complaints (symptoms). Tr. 833. The Ninth Circuit has explained that "[i]n 19 the absence of physical examination findings,... [the ALJ could find a] diagnosis rested 20 solely on Claimant’s subjective complaints." Kibble v. Comm’r Soc. Sec. Admin., 584 F. 21 App’ x 717, 719 (9th Cir. 2014) (unpublished) (citing Tommasetti v. Astrue, 533 F.3d 22 1035, 1041 (9th Cir.2008)). Dallas scours the record for evidence that she contends could 23 14 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 15 of 26 1 support Dr. Khan’s opinion. ECF No. 17 at 14. But, "[t]he key question is not whether 2 there is substantial evidence that could support a finding of disability, but whether there 3 is substantial evidence to support the Commissioner’s actual finding that claimant is not 4 disabled." Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). T 5 Second, the ALJ found Dr. Khan’s opinion conflicted with the objective medical 6 evidence as a whole that was "already discussed." Tr. 31. This is a valid consideration. 7 20 C.F.R. § 416.927(c)(4). Indeed, the ALJ found that the treatment notes, see supra § 8 I.A.2 (summarizing treatment history), were consistent with the opinions of 9 Drs. Weingarten, Werrell, Anderson, and Roberts. Tr. 31. The Ninth Circuit has held 10 that a conflict with their opinions constitute a specific and legitimate reason for 11 discounting Dr. Khan’s opinion. See Tonapetyan, 242 F.3d at 1149. 12 Finally, the ALJ found that Dr. Khan’s opinion conflicts with Dallas’s daily 13 activities. Tr. 31. This is a valid finding. See Rollins, 261 F.3d at 856. The ALJ’s 14 finding is supported by substantial evidence. For example, Dr. Khan opined that Dallas 15 would miss four or more days per month. Tr. 834. But, Dallas reported that she was able 16 to consistently cook for herself, drive by herself, pay bills, read, and use the computer, 17 Tr. 26, 48, 189-91. 18 2. The ALJ reasonably discounted the opinion of Wayne R. General Ph.D. 19 Because Dr. General’s opinion conflicts with the opinions of Eugen Campbell, 20 Ph.D., and Raymond Novak, M.D.8 Compare Tr. 424 with Tr. 78, 82-83, 95, 99-100. 21 8 The ALJ discounted the opinions of Drs. Campbell and Novak. Tr. 32. Dallas 22 (continued on next page) 23 15 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 16 of 26 1 Thus, the ALJ only needed to provide specific and legitimate reasons for discounting 2 Dr. General’s opinion. Widmark v. Barnhart, 454 F.3d 1063, 1066-67 (9th Cir. 2006). 3 As The ALJ did so. 4 First, the ALJ found Dr. General’s opinion internally inconsistent. Tr. 32. The 5 Ninth Circuit has found that a discrepancy between exam notes and an opinion is a "clear 6 and convincing reasons for not relying on the doctor’s opinion." Bayliss, 427 F.3d at 7 1216. The Ninth Circuit has called this "a permissible determination within the ALJ's 8 province." Id. The ALJ’s decision is supported by substantial evidence. Indeed, she 9 demonstrated "good abstracting ability and judgment," intact memory, and normal 10 concentration. Tr. 423. Nevertheless, Dr. General found that she could not work due to 11 "overall decrease in cognitive ability." Tr. 424. Similarly, Dr. General found Dallas was 12 "cooperative and responsive." Tr. 422. Dr. General found the only anomaly in Dallas’s 13 behavior was that she "arose from the seated position several times during [his] 14 interview...." Tr. 422. Nevertheless, Dr. General found that Dallas had a decreased 15 ability to get along with others. Tr. 424. Because the ALJ’s finding is reasonable, it is 16 entitled to deference. See Molina, 674 F.3d at 1111. 17 Second, the ALJ found that Dr. General "based a large part of his opinion on 18 the claimant’s subjective statements." Tr. 32. Contrary to Dallas’s contention, 19 ECF No. 17 at 16, "[a]n ALJ may reject a[n]... opinion if it is based to a large extent 20 on a claimant’s self-reports that have been properly discounted as incredible." 21 does not challenge this finding. 22 23 16 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 17 of 26 1 Tommasetti, 533 F.3d at 1041 (quotation omitted). The ALJ’s finding is reasonable. 2 Dr. General found Dallas was "cooperative and responsive," but opined that Dallas would 3 have "difficulty getting along with others for any length of time." Tr. 422, 424. This 4 appears to be based on Dallas’s subjective reports that "[h]er ability to relate to others, 5 co-workers, supervisors and the general public is poor." Tr. 423. 6 Finally, the ALJ noted that Dr. General was unfamiliar with "additional medical 7 records, which show the claimant does not have serious limitations." Tr. 32. Familiarity 8 with the record is a valid consideration. 20 C.F.R. § 416.927(c)(6). Contrary to Dallas’s 9 contention, ECF No. 17 at 17, this Court can reasonably infer that the ALJ was 10 referencing other evidence cited in the ALJ’s decision. Dr. General performed the 11 evaluation in June 2012. Tr. 418-424. But, the ALJ also considered subsequent 12 treatment notes. Tr. 31. Indeed, in March 2013, despite alleged anger issues, Dallas had 13 intact judgment and memory. Tr. 31, 700. Similarly, in March 2014, Dallas was 14 "pleasant" and "interacting appropriately" despite her alleged depression and poor sleep. 15 Tr. 31, 841. This evidence supported that ALJ’s overall finding that Dallas’s mental 16 health treatment was "essentially routine and conservative." Tr. 26; see supra § A.2. 17 3. The ALJ reasonably found Dallas could occasionally reach overhead. 18 Dallas argues that the ALJ erred in weighing the opinion of Dr. Werrell because 19 the RFC assessment includes a limitation to occasional overhead reaching whereas 20 Dr. Werrell found Dallas could only occasionally reach in all directions. ECF No. 17 at 21 15, citing Tr. 414. Any error in omitting occasional reaching from the RFC assessment 22 was harmless because the job of election clerk government services, DOT #205.367-030, 23 17 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 18 of 26 1 available at 1991 WL 671719, only requires occasional reaching, which is consistent 2 with Dr. Werrell’s opinion, Tr. 33.9 Cf. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 3 (9th Cir. 2008) (finding omission of limitation harmless because the job identified could 4 be performed with the limitation). The ALJ’s decision can be affirmed based on this one 5 job. See Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999), as amended (June 22, 6 1999) (affirming based on one job and declining to address arguments regarding the 7 additional occupation); Barker v. Sec’y of Health & Human Servs., 882 F.2d 1474, 1479 8 (9th Cir. 1989) (noting even if one job was excluded, the decision may be affirmed based 9 on the remaining jobs). The 50,296 positions in the national economy alone meets the 10 ALJ’s burden at step five. See Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 529 (9th 11 Cir. 2014) (holding 25,000 jobs was a significant number). 12 Furthermore, a reading of the ALJ’s decision as a whole explains the omission of a 13 global reaching limitation. The Ninth Circuit has held that the ALJ is not required to 14 "recite magic words" and a court may draw specific and legitimate inferences form an 15 ALJ’s discussion of the opinions. Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 16 1989). The ALJ adopted "no single assessment" and included those specific restrictions 17 "best supported by the objective evidence as whole." Tr. 31. Specifically, the ALJ found 18 the overhead reaching limitation warranted by the diminished range of motion of the 19 9 The other jobs identified by the ALJ require frequent reaching. See Document Preparer, DOT #249.587-018, available at 1991 WL 672349; Addresser, DOT #209.587-20 010, available at 1991 WL 671797. The vocational specifically accounted for a conflict with the DOT regarding overhead reaching, Tr. 63. See Gutierrez v. Colvin, 844 F.3d 21 804, 808 (9th Cir. 2016) (holding "not every job that involves reaching requires the ability to reach overhead"). 22 23 18 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 19 of 26 1 shoulder and neck. Tr. 31. The ALJ considered records that post-dated Dr. Werrell’s 2 opinion, including imaging and the opinions of Drs. Anderson and Roberts. See supra 3 § I.A.2; Tr. 31. Their opinions are unchallenged by Dallas and consistent with all of the 4 jobs even if—like Dr. Werrell—the ALJ did not include all of their limitations in the 5 RFC assessment. Tr. 81, 98; see supra n.8. See Stubbs-Danielson, 539 F.3d at 1174. 6 C. The ALJ provided germane reasons for the weight the ALJ assigned to the opinions of Dallas’s husband and treating nurse practitioner. 7 The Commissioner’s regulations distinguish between acceptable medical 8 sources and other sources. Compare 20 C.F.R. § 416.913(a) (acceptable medical 9 10 sources) with id. § 416.913(d) (other sources). The Commissioner’s regulations 11 require that an ALJ’s decision "reflect the consideration of [an] opinion[]," such 12 as Ms. Crawford and Ms. Beaver. SSR 06-03p, 2006 WL 2329939, at *6. This 13 Court requires an ALJ to provide "germane" reasons for discounting other source’s 14 testimony. Molina, 674 F.3d at 1111. 15 1. The ALJ provided germane reasons for discounting Mr. Dallas’s lay opinion. 16 The ALJ discounted the opinion of Leonard Dallas, Jr. for germane reasons. 17 Tr. 27. First, the ALJ found that Mr. Dallas no more than parroted the subjective 18 complaints of Dallas. Tr. 27. Indeed, their limitations are substantially similar. 19 Compare Tr. 226 with Tr. 192. The Ninth Circuit has explained that where lay testimony 20 is similar to subjective complaints that the ALJ validly discounted, those reasons apply 21 equally to the lay testimony. Molina, 674 F.3d at 1119. Thus, reasons I.A.1, I.A.2, and 22 23 19 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 20 of 26 1 I.A.4 apply equally to this lay opinion as they do to Dallas’s subjective complaints. 2 Second, the ALJ noted Mr. Dallas’s lack of medical training and "[m]ost 3 important[ly]," that his opinion conflicted with the preponderance of the opinions and 4 observations by medical doctors in this case." Tr. 27. Expertise is a valid consideration 5 when assessing an opinion. 20 C.F.R. § 416.927(c)(5). Indeed, the Ninth Circuit has 6 explained that a conflict with an opinion from an acceptable medical source is a valid 7 reason to discount an other source’s opinion. Molina, 674 F.3d at 1112. Here, Mr. 8 Dallas’s opinion conflicts with the opinions of Drs. Weingarten, Werrell, Campbell, 9 Anderson, Roberts, and Novak. Compare Tr. 226 with Tr. 79-83 (Drs. Anderson & 10 Campbell), 96-100 (Drs. Roberts & Novak), 413-15 (Dr. Werrell), 885-90 11 (Dr. Weingarten). The ALJ could reasonably assign greater weigh to these opinions than 12 Mr. Dallas’s opinion. 13 2. Any error in failing to discuss the nurse practitioner’s opinion is harmless. 14 Dallas argues that the ALJ erred by failing to discuss the opinion of a nurse 15 practitioner. ECF No. 17 at 17, citing Tr. 408-09. The nurse practitioner apparently 16 performed no examination in connection with this opinion but assessed that Dallas would 17 miss more than four days of work per months. Tr. 408-09. Contrary to Dallas’s 18 contention, the ALJ considered treatment notes from the nurse practitioner in rendering 19 the decision. See, e.g. Tr. 28, citing Tr. 291, 642; Tr. 29, citing Tr. 469; Tr. 30, citing Tr. 20 341, 346, 376, 429. These records supported the ALJ’s finding that Dallas’s treatment 21 was "routine and conservative." Tr. 26. Because a conflict with treatment notes is a 22 valid reason to discount an opinion, see 20 C.F.R. § 416.927(c)(3), this Court could 23 20 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 21 of 26 1 reasonably infer that this finding undermines the nurse practitioner’s opinion. See 2 Magallanes, 881 F.2d at 755. 3 Furthermore, any error in failing to discuss the nurse practitioner’s opinion was 4 harmless because the nurse practitioner’s unsupported opinion conflicts with the opinions 5 of Drs. Weingarten, Werrell, Roberts, and Anderson, none of whom opined that Dallas 6 would miss any days. Compare Tr. 408-09 with Tr. 79-83 (Dr. Anderson), 96-100 7 (Dr. Roberts), 413-15 (Dr. Werrell), 885-90 (Dr. Weingarten). The Ninth Circuit has 8 affirmed that a conflict with an acceptable medical source is a valid reason to discount a 9 nurse practitioner’s opinion. See Molina, 674 F.3d at 1112. Similarly, the Ninth Circuit 10 has explained that a failure to discuss an opinion is harmless "where the testimony is 11 contradicted by more reliable medical evidence that the ALJ credited." Molina, 674 F.3d 12 at 1119. Such is the case here. 13 II. Substantial evidence supports the ALJ’s finding at step five, that Dallas can perform other work in the national economy. 14 Here the ALJ presented the vocational expert with a hypothetical that matches the 15 RFC assessment. Compare Tr. 25 with Tr. 63-64. The vocational expert testified that 16 such a hypothetical person could perform other work in the national economy. See 17 generally Tr. 59-64. The ALJ was entitled to rely on the vocational expert’s testimony 18 because "[t]he hypothetical that the ALJ posed to the [vocational expert] contained all of 19 the limitations that the ALJ found credible and supported by substantial evidence in the 20 record." Bayliss, 427 F.3d at 1217. 21 Consultation with the vocational expert was appropriate in this matter. At step 22 23 21 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 22 of 26 1 five, the Commissioner bears the burden of showing that the claimant can perform other 2 work that exists in the national economy. Lockwood v. Comm’r Soc. Sec. Admin., 616 3 F.3d 1068, 1071 (9th Cir. 2010). "The Commissioner can meet this burden in one of two 4 ways: (a) by the testimony of a vocational expert, or (b) by reference to the Medical– 5 Vocational Guidelines [the grids] at 20 C.F.R. pt. 404, subpt. P, app. 2." Id. (quotation 6 omitted). 7 Dallas infers that because she cannot perform a full range of light work that she 8 was restricted to sedentary work. ECF No. 17 at 22. This is incorrect. Here, Dallas’s 9 ability to lift and carry fully corresponds with light work. Compare Tr. 25 with 20 C.F.R. 10 § 416.967(b). A "the full range of light work requires standing or walking, off and on, 11 for a total of approximately 6 hours of an 8-hour workday." SSR 83-10, 1983 WL 12 31253, at 6 (emphasis added). But, the Commissioner’s regulations and the Dictionary of 13 Occupational Titles (DOT) are actually silent as to the actual number of hours of standing 14 and walking any specific light occupation requires. Indeed, the DOT’s definition of light 15 work anticipates a class of light jobs that "requires sitting most of the time." U.S. Dep’t 16 Labor, DOT at App. C § IV. (rev. ed. 1991), available at 1991 WL 688702 (defining light 17 work). Thus, Dallas’s ability to stand and walk two hours may be consistent with some 18 light jobs even if those jobs were not identified by the vocational expert. The grids only 19 apply when "a particular individual’s vocational factors and [RFC] coincide with all of 20 the criteria of a particular rule...." 20 C.F.R. pt. 404, subpt. P, app. 2, at 200.00(a) 21 (emphasis added). When a claimant’s exertional capacity falls between grid rules, as 22 here, a vocational expert should be consulted. SSR 83-12, 1983 WL 31253, at *2-3; see 23 22 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 23 of 26 1 also Thomas, 278 F.3d at 960. Thus, the ALJ properly consulted a vocational expert. 2 Dallas argues that she should be found disabled as of her 50th birthday, in July 3 2015. ECF No. 17 at 22. Dallas argument ignores that the relevant period for this 4 Court’s review is between the alleged onset, July 1, 2006, and the date of the final 5 decision, September 24, 2014. Tr. 21, 34, 150. The regulations require the ALJ to 6 consider whether a person would be found disabled within "a few months" of the ALJ’s 7 decision. See 20 C.F.R. § 416.963(b). The nine-plus months between the ALJ’s decision 8 and Dallas birthday are not a few months. See Russell v. Bowen, 856 F.2d 81, 84 (9th 9 Cir. 1988) (holding that it is not a borderline situation where the claimant was seven 10 months from changing age categories). This Court cannot decide Dallas’s disability for a 11 period not adjudicated by the Agency. See Gonzales v. Thomas, 547 U.S. 183, 186-87 12 (2006) (reversing under the ordinary remand rule because the court of appeals 13 made a finding in the first instance where the agency had not yet considered the 14 issue). 15 Dallas’s remaining arguments simply repeat her early arguments, see ECF 16 No. 17 at 23 and can be rejected for the reasons set forth above. Stubbs-Danielson, 17 539 F.3d at 1175-76. Contrary to Dallas’s contention, "[t]he ALJ is not required... 18 to include limitations not supported by substantial evidence in the record." Moon 19 v. Barnhart, 28 F. App'x 666, 668 (9th Cir. 2002) (unpublished) (citing Osenbrock 20 21 v. Apfel, 240 F.3d 1157, 1164 (9th Cir. 2001)). 22 23 23 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 24 of 26 1 III. In the unlikely event that reversal is warranted, this matter should be remanded to the Agency for further administrative proceedings in lieu of a 2 finding of disability. 3 The Ninth Circuit has sometimes awarded benefits in cases where it concluded 4 that the ALJ erred in rejecting medical opinions or subjective complaints (which the 5 Court then credited as true).10 It may be permissible for a court to make a disability 6 finding, even when the agency did not, if: (1) the ALJ failed to provide legally sufficient 7 reasons for rejecting evidence; (2) the record has been fully developed, there are no 8 outstanding issues that must be resolved before a determination of disability can be made, 9 and further administrative proceedings would not be useful; and (3) "the record, taken as 10 a whole, leaves not the slightest uncertainty" that the claimant would be disabled if the 11 relevant evidence were found credible. Treichler, 775 F.3d at 1100-01 (internal 12 quotation marks omitted). Even when these conditions are met, it is impermissible to 13 remand when record as a whole creates serious doubt as to whether the claimant is, in 14 fact, disabled within the meaning of the Social Security Act. Dominguez v. Colvin, 15 808 F.3d 403, 408 (9th Cir. 2015), as amended (Feb. 5, 2016). 16 As discussed above, the ALJ’s findings were based on substantial evidence in the 17 record. This evidence demonstrates there is a conflict in the record or, at the least, 18 serious doubt as to Dallas’s disability. Thus, should this Court determine the ALJ erred 19 10 While acknowledging that it is part of this circuit’s law, the Commissioner 20 maintains that this Court’s credit-as-true rule is contrary to statute and Supreme Court cases addressing basic administrative law principles, e.g., Orlando Ventura, 537 U.S. at 21 16. See Vasquez v. Astrue, 572 F.3d 586, 601 (9th Cir. 2009) (amended opinion) (O’Scannlain, J., dissenting). 22 23 24 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 25 of 26 1 and the error prejudiced Dallas, then the only appropriate remedy would be to remand for 2 further proceedings. Thus, for all these reasons, in the unlikely event that reversal is 3 warranted, then remand for further administrative proceedings would be warranted. 4 Nevertheless, the Commissioner maintains that the ALJ’s decision is supported by 5 substantial evidence and is free of harmful error. Because the ALJ applied the proper 6 legal standards and substantial evidence supports her findings, the district court’s 7 judgment should be affirmed. 8 RELIEF REQUESTED 9 For the reasons set forth above, the Commissioner requests the Court enter 10 judgment affirming the ALJ’s decision pursuant to 42 U.S.C. § 405(g). 11 DATED this 9th day of February 2017. 12 Respectfully submitted, 13 ELIZABETH A. STRANGE Acting United States Attorney 14 District of Arizona 15 s/Lars J. Nelson LARS J. NELSON 16 Special Assistant United States Attorney 17 Of Counsel for the Defendant: 18 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 19 Office of the General Counsel, Region X 701 Fifth Avenue, Suite 2900 M/S 221A 20 Seattle, WA 98104-7075 21 22 23 25 24 Case 2:16-cv-01392-JJT Document 21 Filed 02/09/17 Page 26 of 26 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Defendant’s Responsive Brief was filed 3 with the Clerk of the Court on February 9, 2017, using the CM/ECF system, which 4 will send notification of such filing to the following: Howard D Olinsky. 5 6 s/Lars J. Nelson LARS J. NELSON 7 Special Assistant U.S. Attorney Office of the General Counsel 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 26 24

ORDER reversing the September 24, 2014 decision of the Administrative Law Judge, (R. at 21-34), as upheld by the Appeals Council on March 4, 2016, (R. at 1-3). ORDERED remanding this case to the Social Security Administration for a calculation of benefits. FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case. Signed by Judge John J Tuchi on 9/25/17.

Case 2:16-cv-01392-JJT Document 22 Filed 09/25/17 Page 1 of 11 1 WO NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Annette M. Dallas, No. CV-16-01392-PHX-JJT 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Annette M. Dallas’s Application for 16 Supplemental Security Income by the Social Security Administration ("SSA") under the 17 Social Security Act ("the Act"). Plaintiff filed a Complaint (Doc. 1) with this Court 18 seeking judicial review of that denial, and the Court now addresses Plaintiff’s Opening 19 Brief (Doc. 17, "Pl.’s Br."), and Defendant SSA Commissioner’s Opposition (Doc. 21, 20 "Def.’s Br."). The Court has reviewed the briefs and Administrative Record (Doc. 16, R.) 21 and now reverses the Administrative Law Judge’s decision (R. at 21-34) as upheld by the 22 Appeals Council (R. at 1-3). 23 I. BACKGROUND 24 Plaintiff filed her Application on November 16, 2011, for a period of disability 25 beginning July 1, 2006. (R. at 21.) Plaintiff’s claim was denied initially on June 28, 2012 26 (R. at 86), and on reconsideration on January 9, 2013 (R. at 87). Plaintiff then testified at 27 a hearing held before an Administrative Law Judge ("ALJ") on March 31, 2014, (R. at 28 39-71), where she amended her alleged onset date to November 16, 2011 (R. at 42), the Case 2:16-cv-01392-JJT Document 22 Filed 09/25/17 Page 2 of 11 1 same day as she filed her Application. On September 24, 2014, the ALJ denied Plaintiff’s 2 Applications. (R. at 21-34.) On March 4, 2016, the Appeals Council upheld the ALJ’s 3 decision. (R. at 1-3.) The present appeal followed. 4 The Court has reviewed the medical evidence in its entirety and finds it 5 unnecessary to provide a complete summary here. The pertinent medical evidence will be 6 discussed in addressing the issues raised by the parties. In short, upon considering the 7 medical records and opinions, the ALJ found that Plaintiff has severe impairments of 8 chiari malformation1 ("CM"), status post-surgery; spinal stenosis of the lumbar region; 9 degenerative disc disease ("DDD") with displacement of lumbar without myelopathy; 10 post-laminectomy syndrome of the cervical region; cervical radiculitis with 11 radiculopathy; myalgia and myositis2; chronic pain syndrome; cervical arthropathy3; 12 post-traumatic stress disorder ("PTSD"); bilateral shoulder arthropathy; morbid obesity; 13 and depression. (R. at 23.) The ALJ concluded Plaintiff does not have the residual 14 functional capacity ("RFC") to perform her past relevant work but, relying on the 15 testimony of a Vocational Expert ("VE"), the ALJ concluded Plaintiff has the RFC to 16 perform sedentary, unskilled work with some limitations, including work as a document 17 preparer, election clerk, or addresser, such that Plaintiff is not disabled under the Act 18 (R. at 32-34). 19 II. LEGAL STANDARD 20 In determining whether to reverse an ALJ’s decision, the district court reviews 21 only those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 22 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set aside the Commissioner’s 23 disability determination only if it is not supported by substantial evidence or is based on 24 1 A chiari malformation is a structural defect at the base of the skull and 25 cerebellum, the part of the brain controlling balance, and is most often congenital, or present at birth; it can also be caused later in life as a result of traumatic injury, disease, 26 or infection. 27 2 Myalgia is muscle pain, and myositis is muscle inflammation. 28 3 Arthropathy is joint disease; arthritis, or joint inflammation, is one form of arthropathy.-2-Case 2:16-cv-01392-JJT Document 22 Filed 09/25/17 Page 3 of 11 1 legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is 2 more than a scintilla, but less than a preponderance; it is relevant evidence that a 3 reasonable person might accept as adequate to support a conclusion considering the 4 record as a whole. Id. To determine whether substantial evidence supports a decision, the 5 court must consider the record as a whole and may not affirm simply by isolating a 6 "specific quantum of supporting evidence." Id. As a general rule, "[w]here the evidence 7 is susceptible to more than one rational interpretation, one of which supports the ALJ’s 8 decision, the ALJ’s conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 9 (9th Cir. 2002) (citations omitted). 10 To determine whether a claimant is disabled for purposes of the Act, the ALJ 11 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 12 proof on the first four steps, but the burden shifts to the Commissioner at step five. 13 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ 14 determines whether the claimant is presently engaging in substantial gainful activity. 15 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. 16 At step two, the ALJ determines whether the claimant has a "severe" medically 17 determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the 18 claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether 19 the claimant’s impairment or combination of impairments meets or medically equals an 20 impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. 21 § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, 22 the ALJ proceeds to step four. Id. At step four, the ALJ assesses the claimant’s RFC and 23 determines whether the claimant is still capable of performing past relevant work. 24 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. 25 Id. If not, the ALJ proceeds to the fifth and final step, where he determines whether the 26 claimant can perform any other work in the national economy based on the claimant’s 27 RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If so, the 28 claimant is not disabled. Id. If not, the claimant is disabled. Id.-3-Case 2:16-cv-01392-JJT Document 22 Filed 09/25/17 Page 4 of 11 1 III. ANALYSIS 2 Plaintiff raises five arguments for the Court’s consideration: (1) the ALJ erred in 3 weighing treating and examining medical care providers’ opinions; (2) the ALJ erred in 4 finding Plaintiff’s testimony less than fully credible; (3) the ALJ improperly rejected lay 5 witness testimony; (4) the ALJ’s own findings at minimum establish that Plaintiff was 6 disabled as of her 50th birthday in 2015; and (5) the ALJ’s hypothetical question to the 7 VE did not include all of Plaintiff’s limitations. (Pl.’s Br. at 13-23.) The Court agrees that 8 the ALJ committed reversible error. 9 A. The ALJ Improperly Weighed Plaintiff’s Testimony 10 Plaintiff argues that the ALJ erred in her consideration of Plaintiff’s symptom 11 testimony. (Pl.’s Br. at 18-21.) While credibility is the province of the ALJ, an adverse 12 credibility determination requires the ALJ to provide "specific, clear and convincing 13 reasons for rejecting the claimant’s testimony regarding the severity of the claimant’s 14 symptoms." Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1102 (9th Cir. 2014) 15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). "In evaluating the 16 credibility of pain testimony after a claimant produces objective medical evidence of an 17 underlying impairment, an ALJ may not reject a claimant’s subjective complaints based 18 solely on a lack of medical evidence to fully corroborate the alleged severity of pain." 19 Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). This is because "pain testimony 20 may establish greater limitations than can medical evidence alone." Id. The ALJ may 21 properly consider that the medical record lacks evidence to support certain symptom 22 testimony, but that cannot form the sole basis for discounting the testimony. Id. at 681. 23 The ALJ may also properly consider inconsistencies in the claimant’s testimony, 24 including inconsistencies between the claimant’s testimony of daily activities and 25 symptom testimony. 26 As the ALJ noted, Plaintiff has reported pain, weakness, dizziness, intense 27 migraine headaches, and difficulty lifting, bending, standing, reaching, sitting, talking, 28 and stair-climbing on account of CM and DDD, and she uses either a cane or wheelchair-4-Case 2:16-cv-01392-JJT Document 22 Filed 09/25/17 Page 5 of 11 1 to ambulate. (R. at 26-29.) She has had surgery on her neck and lumbar spine and takes 2 Oxycontin twice daily for pain and muscle spasms. (R. at 26.) While she has reported she 3 is able to drive short distances, her family drives and shops for her. (R. at 26.) She has the 4 ability to prepare meals, take care of personal hygiene, watch television, read, and 5 operate a computer. (R. at 26.) 6 Plaintiff also suffers from PTSD—resulting from childhood sexual abuse—and 7 depression, and she has difficulties being around others, even family members, with the 8 qualified exception of her ex-husband and children. (R. at 26-29.) She reports trouble 9 with memory, concentration, understanding, and following instructions. (R. at 26.) 10 The ALJ discounted Plaintiff’s testimony of pain and other limitations by finding 11 it was inconsistent with her reports of daily activities, stating "some of the physical and 12 mental abilities and social interactions required in order to perform these activities are the 13 same as those necessary for obtaining employment and are inconsistent with the presence 14 of an incapacitating or debilitating condition." (R. at 26.) The ALJ fails to provide a 15 single specific example. See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) 16 (concluding the ALJ erred by failing to "elaborate on which daily activities conflicted 17 with which part of Claimant’s testimony"). As Plaintiff argues (Pl.’s Br. at 20), the fact 18 that Plaintiff can take care of personal hygiene, for example, does not mean she can 19 sustain work activity for a full day or week, and the ALJ does not explain, as she must, 20 how this or any other daily task Plaintiff is able to complete would be transferrable to the 21 work setting, other than by conclusory, blanket reasoning. See Vertigan v. Halter, 260 22 F.3d 1044, 1050 (9th Cir. 2001); Fair v. Bowen, 885 F.2d 597 (9th Cir. 1989). By 23 generally referring to purported inconsistencies between Plaintiff’s symptom testimony 24 and daily activities without specificity or support, the ALJ failed to provide a sufficiently 25 specific, clear or convincing reason to discredit Plaintiff’s symptom testimony. See 26 Garrison v. Colvin, 795 F.3d 995, 1014-16 (9th Cir. 2014). 27 The ALJ also discredited Plaintiff’s symptom testimony because her medical 28 treatment "has been essentially routine and conservative in nature, primarily in the form-5-Case 2:16-cv-01392-JJT Document 22 Filed 09/25/17 Page 6 of 11 1 of pain medications." (R. at 26.) Again, this conclusion is wholly unsupported by the 2 record. Plaintiff has had multiple surgeries—including spinal fusion surgeries and brain 3 surgery—as well as epidural shots, and indeed the ALJ refers to much of this treatment 4 later in her opinion. If anything, and without wading into the area of formulating a 5 medical opinion, the Court would find that Plaintiff’s symptom testimony at the hearing 6 was entirely consistent with her treatment records. The ALJ erred in finding Plaintiff’s 7 level of care was inconsistent with her symptom testimony. See Tackett v. Apfel, 180 F.3d 8 1094, 1103 (9th Cir. 1999) (rejecting ALJ finding when no medical opinion in the record 9 supports it). Because this conclusion was unsupported and conclusory, it cannot serve as 10 a specific, clear and convincing reason to discredit Plaintiff’s symptom testimony. 11 The ALJ next formed her own medical opinion, without citation to the medical 12 record, that she could find no evidence in the record that Plaintiff’s back, neck, and leg 13 muscles had atrophied, as the ALJ expected, because "muscle atrophy is a common side 14 effect of prolonged and/or chronic pain due to lack of use of a muscle in order to avoid 15 pain." (R. at 27.) Such an unsupported medical evaluation made by the ALJ is wholly 16 inappropriate and fails to serve as a sufficient basis to discredit Plaintiff’s testimony. 17 The final two reasons the ALJ identified for discrediting Plaintiff’s symptom 18 testimony are that Plaintiff’s reports of marijuana use over the years have been 19 inconsistent and that she worked only sporadically even before claiming a disability, 20 "which raises a question as to whether the claimant’s continuing unemployment is 21 actually due to medical impairments." (R. at 27.) The first reason, by itself, is simply not 22 sufficiently convincing to disbelieve Plaintiff’s testimony in its entirety; there can be 23 multiple reasons Plaintiff’s reports of marijuana use were inconsistent over time, and the 24 ALJ did not give Plaintiff an opportunity to explain the purported inconsistencies at the 25 hearing. The second reason is not a reason so much as it is an offhand opinion, and in any 26 case it is not convincing; Plaintiff’s sporadic work prior to applying for disability benefits 27 could just as well have been indicative of her will—or at least attempts—to work in the 28-6-Case 2:16-cv-01392-JJT Document 22 Filed 09/25/17 Page 7 of 11 1 face of a disability. In short, these reasons are not sufficiently specific, clear or 2 convincing to discredit Plaintiff’s symptom testimony. 3 As a result, the ALJ erred in not accepting Plaintiff’s symptom testimony and 4 taking it into account in formulating Plaintiff’s RFC. This, by itself, is reversible error. 5 Indeed, the Court agrees with Plaintiff (Pl.’s Br. at 21) that the fact that the ALJ provided 6 no specific, clear and convincing reason to discredit Plaintiff’s testimony is sufficient to 7 warrant a reversal of the ALJ’s determination that Plaintiff is not disabled under the Act.4 8 See Lingenfelter v. Astrue, 504 F.3d 1028, 1040-41 & n.12 (9th Cir. 2007) ("Further 9 proceedings are unnecessary because the ALJ did not provide a legally sufficient reason 10 for rejecting [Plaintiff’s] testimony, which alone establishes that [Plaintiff] is entitled to 11 benefits.") 12 B. The ALJ Did Not Assign Proper Weight to the Assessments of 13 the Treating and Examining Medical Care Providers 14 Though the ALJ’s error in assessing Plaintiff’s credibility is dispositive, the Court 15 will also address Plaintiff’s argument that the ALJ committed reversible error by 16 assigning inadequate weight to the medical assessments of a treating physician and nurse 17 practitioner—Dr. Khan and Family Nurse Practitioner ("FNP") Babb—and two 18 examining physicians—Dr. Werrell and Dr. General. (Pl.’s Br. at 13-18.) An ALJ "may 19 only reject a treating or examining physician’s uncontradicted medical opinion based on 20'clear and convincing reasons.’" Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1164 21 (9th Cir. 2008) (citing Lester v. Chater, 81 F. 3d 821, 830-31 (9th Cir. 1996)). "Where 22 such an opinion is contradicted, however, it may be rejected for specific and legitimate 23 reasons that are supported by substantial evidence in the record." Id. 24 25 4 As a result, the Court need not examine Plaintiff’s fourth and fifth arguments for 26 reversal, that the ALJ’s own findings at minimum establish that Plaintiff was disabled as of her 50th birthday in 2015, and the ALJ’s hypothetical question to the VE did not 27 include all of Plaintiff’s limitations. See Brink v. Comm’r, Soc. Sec. Admin., 343 F. App’x 211, 212 (9th Cir. 2009) (finding ALJ erred by not formulating a hypothetical to the VE 28 that did not include all of Plaintiff’s limitations, including those accounting for Plaintiff’s testimony).-7-Case 2:16-cv-01392-JJT Document 22 Filed 09/25/17 Page 8 of 11 1 In stating that "no single assessment has been completely adopted as the [RFC] 2 herein" and instead adopting "those specific restrictions on a function-by-function basis 3 that are best supported by the objective evidence as a whole," the ALJ does not identify 4 specific inconsistencies between the assessments of the treating and examining 5 physicians—indeed, she opines several times that "the opinions of all of these physicians 6 are generally consistent." (R. at 31.) While Defendant’s brief tries to identify 7 contradictions in the medical record, any findings of contradictory evidence were less 8 than explicit in the ALJ’s opinion. The Court will thus apply the "clear and convincing 9 reasons" standard to the ALJ’s rejection of treating and examining physicians’ opinions 10 but notes that the ALJ erred under either standard of review of this evidence. 11 In his care of Plaintiff, Dr. Asipan Khan consistently noted Plaintiff’s back, leg 12 and wrist pain, vertigo, nausea, and severe headaches. (E.g., R. at 836-37, 843-44, 847-13 48.) He completed a functional capacity questionnaire in which he opined that Plaintiff’s 14 symptoms were constant and severe enough to interfere with the attention and 15 concentration required to perform even simple tasks, that she needed breaks to lie down 16 during a work day, that she could walk less than one block, that she could sit for only 30 17 to 45 minutes at a time and a maximum of four to five hours in an eight-hour day, and 18 that she could stand and walk for 15 to 20 minutes at a time for a maximum of one to two 19 hours in an eight-hour day. (R. at 833-34.) He also stated that Plaintiff could lift only 10 20 pounds occasionally. (R. at 833-34.) 21 The ALJ concluded, again without the requisite specificity, that Dr. Khan "did not 22 provide medically acceptable clinical or diagnostic findings" to support the functional 23 assessment. (R. at 31.) The ALJ did not provide sufficient specifics, and the Court finds 24 no lack of medical findings on Dr. Khan’s part to support his conclusions, as noted 25 above. The ALJ also goes back to her conclusions that Plaintiff’s medical treatment has 26 been "conservative" and her activities of daily life are inconsistent with the reported 27 functional limitations. (R. at 31.) As discussed above, neither of those findings is 28 supported by the record. The ALJ’s analysis is far from sufficient in providing the clear-8-Case 2:16-cv-01392-JJT Document 22 Filed 09/25/17 Page 9 of 11 1 and convincing reasons required to discount Dr. Khan’s assessment; the analysis does not 2 even provide specific or legitimate reasons to discount the assessment. 3 Dr. Wayne General performed a psychiatric evaluation of Plaintiff and found that 4 she suffers from bipolar disorder I, PTSD as a victim of sexual abuse, and depression, 5 and gave her a Global Assessment of Functioning ("GAF") score of 50. (R. at 418-24.) 6 As the ALJ herself noted, a GAF score of 41 to 50 "indicates serious symptoms and 7 serious difficulties functioning." (R. at 30 n.1.) Dr. General concluded Plaintiff’s "ability 8 to perform work-related tasks is currently in the low average range overall" and that "she 9 is likely to have difficulty getting along with others for any length of time." (R. at 424.) 10 In formulating Plaintiff’s RFC, the ALJ gave "little weight" to Dr. General’s 11 assessment because it was "internally inconsistent" and "based on claimant’s subjective 12 statements." It is unclear what inconsistencies in Dr. General’s report led the ALJ to 13 disregard it, and psychiatric assessments are always dependent in part on a claimant’s 14 statements and behavior. Without making its own assessment, the Court finds 15 Dr. General’s assessment well-supported by the record and well-reasoned. The ALJ fails 16 to give a single clear and convincing, or specific and legitimate, reason to disregard 17 Dr. General’s assessment. 18 The Court need not go on. The ALJ erred in her consideration of the medical 19 evidence of Plaintiff’s treating and examining medical care providers, and this, too, is 20 reversible error. See Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1164 (9th Cir. 21 2008) (citing Lester v. Chater, 81 F. 3d 821, 830-31 (9th Cir. 1996)). 22 C. The ALJ Improperly Weighed Lay Witness Testimony 23 The Court will also briefly address Plaintiff’s other argument for reversal of the 24 ALJ’s opinion: the ALJ improperly disregarded a Third Party Function Report prepared 25 by Plaintiff’s ex-husband. (Pl.’s Br. at 21-22.) Mr. Dallas reported that he or another 26 family member visits Plaintiff daily to help her with her chores or drive her to 27 appointments. (R. at 27.) The ALJ disregarded this report, stating Mr. Dallas was not 28 under oath when he made the report and is not a doctor trained to make observations-9-Case 2:16-cv-01392-JJT Document 22 Filed 09/25/17 Page 10 of 11 1 about Plaintiff’s limitations, and the ALJ also found the report to be inconsistent with the 2 medical record. (R. at 27.) 3 An ALJ must give reasons germane to a particular lay witness to discredit that 4 witness’s testimony. Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). The Ninth 5 Circuit has noted that family members who observe a claimant’s symptoms and daily 6 activities can provide competent testimony to substantiate limitations supported by the 7 medical record or show how an impairment would affect a claimant’s ability to work. 8 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). Here, the testimony the ALJ 9 chose to disregard is not the type of medical evidence Mr. Dallas is unqualified to give. 10 Nothing in the record indicates that he lacked the qualifications to testify that Plaintiff 11 requires daily help to do her housework and travel to appointments. Nor is there any 12 reason supported by the record that the ALJ or Court should find Mr. Dallas not credible. 13 Moreover, as the Court noted above, the limitations Mr. Dallas states Plaintiff exhibits 14 are not inconsistent with her medical conditions. For these reasons, the ALJ also erred in 15 disregarding Mr. Dallas’s testimony. 16 D. The Credit-As-True Rule Applies 17 Plaintiff asks that the Court apply the "credit-as-true" rule, which would result in 18 remand of Plaintiff’s case for payment of benefits rather than for further proceedings. 19 (Pl.’s Br. at 23.) The credit-as-true rule only applies in cases that raise "rare 20 circumstances" which permit the Court to depart from the ordinary remand rule under 21 which the case is remanded for additional investigation or explanation. Treichler v. 22 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1102 (9th Cir. 2014). These rare 23 circumstances arise when three elements are present. First, the ALJ must have failed to 24 provide legally sufficient reasons for rejecting medical evidence. Id. at 1100. Second, the 25 record must be fully developed, there must be no outstanding issues that must be resolved 26 before a determination of disability can be made, and the Court must find that further 27 administrative proceedings would not be useful. Id. at 1101. Further proceedings are 28 considered useful when there are conflicts and ambiguities that must be resolved. Id.-10-Case 2:16-cv-01392-JJT Document 22 Filed 09/25/17 Page 11 of 11 1 Third, if the above elements are met, the Court may "find[] the relevant testimony 2 credible as a matter of law... and then determine whether the record, taken as a whole, 3 leaves'not the slightest uncertainty as to the outcome of [the] proceeding.’" Id. (citations 4 omitted). 5 In this case, the credit-as-true rule applies. As the Court discussed above, the ALJ 6 failed to provide legally sufficient reasons for rejecting Plaintiff’s symptom testimony as 7 well as the opinions of the treating and examining physicians. If this evidence is properly 8 credited, the Court sees no significant conflicts or ambiguities that are left for the ALJ to 9 resolve. Moreover, considering the record as a whole, including Plaintiff’s testimony as 10 to her physical limitations—which the Court credits as a matter of law—the Court is left 11 with no doubt that Plaintiff is disabled under the Act. See Garrison, 59 F.3d at 1022-23; 12 Lingenfelter, 504 F.3d at 1040-41 & n.12. 13 IV. CONCLUSION 14 Plaintiff raises materially harmful error on the part of the ALJ, and, for the reasons 15 set forth above, the Court must reverse the SSA’s decision denying Plaintiff’s 16 Application for Supplemental Security Income benefits under the Act and remand for a 17 calculation of benefits. 18 IT IS THEREFORE ORDERED reversing the September 24, 2014 decision of the 19 Administrative Law Judge, (R. at 21-34), as upheld by the Appeals Council on March 4, 20 2016, (R. at 1-3). 21 IT IS FURTHER ORDERED remanding this case to the Social Security 22 Administration for a calculation of benefits. 23 IT IS FURTHER ORDERED directing the Clerk to enter final judgment 24 consistent with this Order and close this case. 25 Dated this 25th day of September, 2017. 26 27 Honorable John J. Tuchi 28 United States District Judge-11-

CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed September 25, 2017, the decision of the Commissioner of Social Security is reversed, and this case is remanded to the Social Security Administration for further proceedings consistent with the Order.

Case 2:16-cv-01392-JJT Document 23 Filed 09/25/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Annette M Davis, et al., NO. CV-16-01392-PHX-JJT 10 Plaintiffs, JUDGMENT IN A CIVIL CASE 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Decision by Court. This action came for consideration before the Court. The 16 issues have been considered and a decision has been rendered. 17 IT IS ORDERED AND ADJUDGED that pursuant to the Court’s Order filed 18 September 25, 2017, the decision of the Commissioner of Social Security is reversed, and 19 this case is remanded to the Social Security Administration for further proceedings 20 consistent with the Order. 21 Brian D. Karth District Court Executive/Clerk of Court 22 23 September 25, 2017 s/E. Aragon 24 By Deputy Clerk 25 26 27 28

First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, Opposed by Annette M Dallas.

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Annette M. Dallas 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Annette M. Dallas, 13 14 Plaintiff, Civil No. 2-16-cv-01392-JTT 15 16 vs. MOTION FOR ATTORNEY'S 17 FEES PURSUANT TO THE 18 Nancy A. Berryhill, Acting EQUAL ACCESS TO JUSTICE Commissioner of Social Security, ACT, 28 U.S.C.A. § 2412 (WEST) 19 20 Defendant 21 22 PLAINTIFF'S MOTION FOR ATTORNEY'S FEES PURSUANT TO THE 23 EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C.A. § 2412 (WEST) 24 25 COUNSEL: 26 PLEASE TAKE NOTICE that upon the annexed affirmation of Howard 27 D. Olinsky, attorney for the plaintiff, and other papers, the plaintiff will make a 28 Page 1 1 motion before Hon. John J. Tuchi, at Sandra Day O'Connor U.S. Courthouse, 2 Suite 525, 401 West Washington Street, SPC 83, Phoenix, AZ 85003 on a date to 3 4 be set by the court, for an order: 5 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,909.42, and 6 7 2. Awarding Expenses in the amount of $17.25; and 8 3. If the Plaintiff has no debt registered with the Department of Treasury 9 subject to offset that the fees be made payable to the attorney. 10 11 Plaintiff, by her attorney, Howard D. Olinsky moves the court for an award to be 12 13 paid by the Defendant under the Equal Access to Justice Act, 28 U.S.C.A. § 2412. 14 15 Plaintiff may receive an award under the Equal Access to Justice Act because she 16 17 is the prevailing party, is an individual whose net worth did not exceed two 18 million dollars when the action was filed, and the position of the United States in 19 this litigation and/or at the agency was not substantially justified. Although the 20 21 burden of proof on substantial justification is on the government, Plaintiff's 22 supporting memorandum briefly addresses this issue. 23 24 25 There are no special circumstances in this case which make an award under the 26 EAJA unjust. 27 28 Page 2 1 This motion is supported by an affirmation of Plaintiff's attorney, attached time 2 and cost records and an Affidavit and Waiver of Direct Payment by the plaintiff. 3 4 5 Executed this December 22, 2017 6 Respectfully submitted, 7 8 /s/ Howard D. Olinsky Howard D. Olinsky, Esq. 9 Admitted Pro Hac Vice 10 Attorney for Plaintiff Email: fedct@windisability.com 11 12 To: Elizabeth A. Strange, Esq. Acting United States Attorney 13 Lars J. Nelson, Esq. 14 Special Assistant United States Attorney 15 Office of the General Counsel Social Security Administration 16 701 Fifth Avenue, Suite 2900 M/S 221A 17 Seattle, WA 98104-7075 State Bar No. MN0389274 18 Telephone: (206) 615-2732 19 Facsimile: (206) 615-2531 Email: lars.nelson@ssa.gov 20 21 Attorneys for Defendant 22 23 24 25 26 27 28 Page 3

Text of Proposed Order

1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 10 11 12 Annette M. Dallas, Civil No. 2-16-cv-01392-JJT 13 Plaintiff, 14 15 vs. (PROPOSED) ORDER AWARDING ATTORNEY'S FEES 16 PURSUANT TO THE EQUAL 17 Nancy A. Berryhill, Acting ACCESS TO JUSTICE ACT, 18 Commissioner of Social Security, 28 U.S.C. § 2412(D) 19 Defendant 20 21 (Proposed) Order Awarding Attorney's Fees 22 pursuant to the Equal Access to Justice Act, 23 28 U.S.C. § 2412(d) 24 25 Before the Court is the Motion of Plaintiff Annette M. Dallas, for award of 26 attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). 27 Based on the pleadings as well as the position of the defendant commissioner, if 28 Page 1 1 any, and recognizing the Plaintiff's waiver of direct payment and assignment of 2 EAJA to her counsel, 3 4 5 IT IS HEREBY ORDERED that attorney fees in the total amount of Six 6 Thousand Nine Hundred Nine Dollars and Forty-Two Cents ($6,909.42) pursuant 7 8 to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) are awarded to Plaintiff. 9 Astrue v. Ratliff, 130 S.Ct. 2521 (2010). 10 11 IT IS FURTHER ORDERD that Plaintiff is awarded Seventeen Dollars and 12 13 Twenty-Five Cents ($17.25) in expenses for Certified Mail for service of 14 Summons and Complaint. 15 16 17 If the U.S. Department of the Treasury determines that Plaintiff's EAJA 18 fees are not subject to offset allowed under the Department of the Treasury's 19 Offset Program (TOPS), then the check for EAJA fees shall be made payable to 20 21 Plaintiff's attorney, Howard D. Olinsky. 22 23 Whether the check is made payable to Plaintiff or to Howard D. Olinsky, 24 25 26 27 28 Page 2 1 the check shall be mailed to Howard D. Olinsky at the following address: 2 300 South State Street 3 Suite 420 4 Syracuse, NY 13202 5 6 DATED: 7 8 9 ____________________________ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 3

AFFIDAVIT in Support re: [24] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, Opposed filed by Annette M Dallas.

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Annette M. Dallas 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Annette M. Dallas, 13 14 Plaintiff, Civil No. 2-16-cv-01392-JJT 15 vs. Attorney's affirmation in support of 16 Fees Pursuant to the Equal Access to 17 Justice Act, 28 U.S.C. § 2412 18 Nancy A. Berryhill, Acting 19 Commissioner of Social Security, 20 Defendant 21 22 Attorney's Affirmation in Support of Fees Pursuant to the Equal Access to 23 Justice Act, 28 U.S.C. § 2412 ________________________________________ 24 25 Howard D. Olinsky, being duly sworn deposes and states: 26 27 1. I am an attorney licensed to practice law in the State of New York, 28 admitted to practice pro hac vice before this Court. Page 4 1 2. I make this affirmation knowing that the Court will rely upon it in 2 assessing any awards under the Equal Access to Justice Act. 28 U.S.C.A. § 2412. 3 4 3. There are no special circumstances in this case which make an award 5 under the EAJA unjust. 6 4. The Court ordered on September 25, 2017 that the above-entitled 7 8 case be remanded for calculation of benefits, under the fourth sentence of 42 9 U.S.C.A. § 405(g) (West). 10 5. For the Equal Access to Justice Act, I am requesting an hourly rate 11 of $192.68 for attorney time through 2017. See generally, 12 13 http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 U.S.C.A 9th 14 Circuit EAJA Table. If attorney fees are calculated at this rate for 31.5 hours of 15 work performed in 2016 and 2017 they total $6,069.42. 16 17 6. I am also requesting $100.00 per hour for 8.4 hours of paralegal time 18 equaling $840.00. I am requesting $6,909.42 for Counsel Fees which include 19 attorney and paralegal time. 20 21 7. The time accounting is presented to the court in two fashions. 22 Exhibit A is the time spent by all who worked on this case in chronological 23 sequence. Exhibit B is broken down by attorneys. The attorneys involved in this 24 25 case are Howard D. Olinsky, Esq., Paul Eaglin, Esq., Marisa Burkett, Esq., Betsy 26 R. Shephard, Esq., and Alyssa Van Auken, Esq. Exhibit C is broken down by 27 28 Page 5 1 paralegals. The paralegals involved in this case are Shannon Persse, Michelle 2 Callahan, Jonnah Graser, Kyrsten Gifford, Michael Smith, and Tamica Lockwood. 3 4 8. I am requesting reimbursement of expenses of $17.25 for Certified 5 Mail for the summons and complaint to the defendant's office's as shown on 6 Exhibit D. The Supreme Court has clarified that only the items specifically listed 7 8 in 28 U.S.C. §1920 are compensable as costs. See Crawford Fitting Co. v. J. T. 9 Gibbons, Inc., 482 U.S. 437, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987). 28 10 U.S.C.A. § 1920 (West) provides: 11 A judge or clerk of any court of the United States may tax as costs the 12 13 following: 14 a.) fees of the clerk and marshal; 15 b.) fees of the court reporter for all or any part of the stenographic transcript 16 17 necessarily obtained for use in the case; 18 c.) fees and disbursements for printing and witnesses; 19 d.) fees for exemplification and copies of papers necessarily obtained for 20 21 use in the case; 22 e.) docket fees under section 1923 of this title; 23 f.) compensation of court appointed experts, compensation of interpreters, 24 25 and salaries, fees, expenses, and costs of special interpretation services under 26 section 1828 of this title. 27 28 Page 6 1 The postage fee to serve process by certified mail is reimbursable as an 2 "expense." 3 4 9. The attached records were contemporaneously created and stored in 5 the firm's Prevail Database, and are printed out and attached. The itemized time 6 represents hours spent preparing and handling this case for U.S. District Court. 7 8 Clerical time is not included in this petition or has been zeroed out. 9 Waiver of Direct Payment of EAJA Fees 10 10. Attached is an Affidavit and Waiver of Direct Payment duly 11 executed by the plaintiff (Exhibit E). With this Waiver, if Plaintiff owes a debt 12 13 that qualifies under the Treasury Offset Program (31 U.S.C.A. § 3716 (West)), any 14 payment shall be made payable to the Plaintiff and delivered to the Plaintiff's 15 attorney. If the United States Department of Treasury determines that Plaintiff 16 17 owes no debt subject to offset, the government may accept the assignment of 18 EAJA fees and pay such fees directly to the Plaintiff's attorney. Astrue v. Ratliff, 19 560 U.S. 586, 130 S. Ct. 2521, 177 L. Ed. 2d 91 (2010). 20 21 22 WHEREFORE, because all four elements of an allowable application for 23 EAJA fees have been proven, petitioner requests that the Court issue an order: 24 25 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,909.42; 26 and 27 2. Awarding Expenses in the amount of $17.25; and 28 Page 7 1 3. If the Plaintiff has no debt registered with the Department of Treasury 2 subject to offset that the fees be made payable to the attorney. 3 4 5 Executed this December 22, 2017 6 Respectfully submitted, 7 /s/ Howard D. Olinsky 8 Howard D. Olinsky, Esq. 9 Admitted Pro Hac Vice Attorney for Plaintiff 10 Email: fedct@windisability.com 11 To: Elizabeth A. Strange, Esq. 12 Acting United States Attorney 13 Lars J. Nelson, Esq. 14 Special Assistant United States Attorney 15 Office of the General Counsel Social Security Administration 16 701 Fifth Avenue, Suite 2900 M/S 221A 17 Seattle, WA 98104-7075 State Bar No. MN0389274 18 Telephone: (206) 615-2732 19 Facsimile: (206) 615-2531 Email: lars.nelson@ssa.gov 20 21 Attorneys for Defendant 22 23 24 25 26 27 28 Page 8

Exhibit A All Professional Time

Exhibit A Ledger Dallas, Annette M. Date  Subject Hours Timekeeper 3/18/2016 Files received, reviewed and processed from referral source for Attorney review 0.6 Callahan, Michelle 3/18/2016 Correspondence to Client re: Prospect acknowledgment letter mailed 0.2 Callahan, Michelle 3/25/2016 Telephone call with Client re: Debt conference call, explained process 0.4 Callahan, Michelle 4/15/2016 Review decisions and evidence to determine whether to appeal case 1 Burkett, Marisa 4/19/2016 FDC prospect packet prepared for Client completion 0.6 Callahan, Michelle 4/19/2016 Telephone call to Client re: Acceptance of case, review forms- left VM 0 Callahan, Michelle 4/21/2016 Telephone call to Client re: Acceptance of case, review forms- left VM 0 Callahan, Michelle 4/22/2016 Telephone call with Client re: Assistance with in forma pauperis application 0.3 Callahan, Michelle 4/22/2016 FDC prospect packet sent to Client via Right Signature 0.2 Callahan, Michelle 4/25/2016 FDC prospect packet returned via Right Signature, reviewed for completion 0.3 Callahan, Michelle 5/6/2016 Review motion to proceed in forma pauperis, approve for filing 0.2 Olinsky, Howard D. 5/6/2016 Draft Complaint, Proposed Summons, Letter to Clerk, and Civil Cover Sheet 0.6 Olinsky, Howard D. 5/9/2016 Federal Court -Accept Letter - New FDC Filing 0.3 Smith, Michael P. 5/9/2016 Draft and file amended complaint re: Error in client name 0 Olinsky, Howard D. 5/10/2016 Review case assigned Hon. John J. Tuchi, research individual rules & practices 0.3 Olinsky, Howard D. 5/11/2016 Draft motion for leave to proceed pro hac vice, letter to the Clerk 0 Olinsky, Howard D. 5/11/2016 Review notice of deficiency re: pro hac vice filing 0 Olinsky, Howard D. 5/11/2016 Drart corrected motion for pro hac vice admission 0 Olinsky, Howard D. 5/18/2016 Review order granting pro hac vice admission 0 Olinsky, Howard D. 7/22/2016 Telephone call with Clerk re: Status of in forma pauperis application & summons 0.2 Callahan, Michelle 7/22/2016 Review order granting in forma pauperis application, directing service 0.1 Eaglin, Paul B. 7/25/2016 Review issued summons 0.2 Eaglin, Paul B. 8/5/2016 Federal Court-service of process-prepare service packets USAO, OGC, AG 0.6 Callahan, Michelle 8/19/2016 Review notice of appearance Lars J. Nelson o/b/o CArolyn W. Colvin 0.1 Eaglin, Paul B. 8/22/2016 Compile and file proof of service via CM / ECF 0.3 Callahan, Michelle 8/23/2016 Review service executed 0 Eaglin, Paul B. 9/29/2016 Review scheduling order, calender deadlines on task pad 0.3 Eaglin, Paul B. 10/7/2016 Review and execute magistrate consent form 0.1 Olinsky, Howard D. 10/11/2016 Review answer to complaint 0.1 Eaglin, Paul B. 10/12/2016 Email to Opposing Counsel re: Magistrate jurisdiction 0.1 Lockwood, Tamica 10/12/2016 Combine, strip PDF/A, OCR and live bookmark federal court transcript (909 pgs) 1 Lockwood, Tamica 10/12/2016 Preliminary review of transcript - assign Attorney writer 0.5 Eaglin, Paul B. 12/7/2016 Review certified administrative record and take notes, organize facts 8 Shephard, Betsy R. 12/8/2016 Drafting procedural section, drafting facts 6.4 Shephard, Betsy R. 12/9/2016 Research issues and drafting argument 8.5 Shephard, Betsy R. 12/12/2016 Senior attorney review draft brief, edit, finalize and file (n/c for filing) 2.1 Eaglin, Paul B. 1/10/2017 Emails with Opposing Counsel re: Extension request for Defendant brief 0.2 Olinsky, Howard D. 39.90 (Type = Time) and (Client = Ms. Annette M. Dallas)    Date  Subject Hours Timekeeper 1/10/2017 Review first motion for extension request by Defendant 0.1 Eaglin, Paul B. 1/10/2017 Review declaration of Lars J. Nelson re: extension of time to file brief 0.1 Eaglin, Paul B. 1/11/2017 Review order granting Defendant extension, update task pad 0.2 Eaglin, Paul B. 2/9/2017 Review defendant's response brief (26 pages) 0.8 Eaglin, Paul B. 2/9/2017 Assign Attorney writer to access / write reply 0.2 Eaglin, Paul B. 2/23/2017 Review CAR and briefs to access reply-NO REPLY WARRANTED 0.5 Van Auken, Alyssa 9/26/2017 Review order reversing and remanding-calculation of benefits 0.3 Olinsky, Howard D. 9/26/2017 Review judgment in favor of Annette Dallas 0.1 Olinsky, Howard D. 9/28/2017 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 9/28/2017 Federal Court-Remand Referral back to Referral Source 0.3 Graser, Jonnah 10/6/2017 Telephone call with Client re: Reviewing remand and process 0.2 Gifford, Kyrsten 12/1/2017 Telephone call with Client re: Attorney's fees 0.2 Persse, Shannon 12/18/2017 EAJA Preparation 1.5 Persse, Shannon 12/18/2017 Review Slips and Finalize EAJA Motion 0.5 Olinsky, Howard D. 12/21/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 39.90 (Type = Time) and (Client = Ms. Annette M. Dallas)   

Exhibit B Attorney Time

Exhibit B Ledger Dallas, Annette M. Date  Subject Hours Timekeeper 4/15/2016 Review decisions and evidence to determine whether to appeal case 1 Burkett, Marisa 5/6/2016 Review motion to proceed in forma pauperis, approve for filing 0.2 Olinsky, Howard D. 5/6/2016 Draft Complaint, Proposed Summons, Letter to Clerk, and Civil Cover Sheet 0.6 Olinsky, Howard D. 5/9/2016 Draft and file amended complaint re: Error in client name 0 Olinsky, Howard D. 5/10/2016 Review case assigned Hon. John J. Tuchi, research individual rules & practices 0.3 Olinsky, Howard D. 5/11/2016 Draft motion for leave to proceed pro hac vice, letter to the Clerk 0 Olinsky, Howard D. 5/11/2016 Review notice of deficiency re: pro hac vice filing 0 Olinsky, Howard D. 5/11/2016 Drart corrected motion for pro hac vice admission 0 Olinsky, Howard D. 5/18/2016 Review order granting pro hac vice admission 0 Olinsky, Howard D. 7/22/2016 Review order granting in forma pauperis application, directing service 0.1 Eaglin, Paul B. 7/25/2016 Review issued summons 0.2 Eaglin, Paul B. 8/19/2016 Review notice of appearance Lars J. Nelson o/b/o CArolyn W. Colvin 0.1 Eaglin, Paul B. 8/23/2016 Review service executed 0 Eaglin, Paul B. 9/29/2016 Review scheduling order, calender deadlines on task pad 0.3 Eaglin, Paul B. 10/7/2016 Review and execute magistrate consent form 0.1 Olinsky, Howard D. 10/11/2016 Review answer to complaint 0.1 Eaglin, Paul B. 10/12/2016 Preliminary review of transcript - assign Attorney writer 0.5 Eaglin, Paul B. 12/7/2016 Review certified administrative record and take notes, organize facts 8 Shephard, Betsy R. 12/8/2016 Drafting procedural section, drafting facts 6.4 Shephard, Betsy R. 12/9/2016 Research issues and drafting argument 8.5 Shephard, Betsy R. 12/12/2016 Senior attorney review draft brief, edit, finalize and file (n/c for filing) 2.1 Eaglin, Paul B. 1/10/2017 Emails with Opposing Counsel re: Extension request for Defendant brief 0.2 Olinsky, Howard D. 1/10/2017 Review first motion for extension request by Defendant 0.1 Eaglin, Paul B. 1/10/2017 Review declaration of Lars J. Nelson re: extension of time to file brief 0.1 Eaglin, Paul B. 1/11/2017 Review order granting Defendant extension, update task pad 0.2 Eaglin, Paul B. 2/9/2017 Review defendant's response brief (26 pages) 0.8 Eaglin, Paul B. 2/9/2017 Assign Attorney writer to access / write reply 0.2 Eaglin, Paul B. 2/23/2017 Review CAR and briefs to access reply-NO REPLY WARRANTED 0.5 Van Auken, Alyssa 9/26/2017 Review order reversing and remanding-calculation of benefits 0.3 Olinsky, Howard D. 9/26/2017 Review judgment in favor of Annette Dallas 0.1 Olinsky, Howard D. 12/18/2017 Review Slips and Finalize EAJA Motion 0.5 Olinsky, Howard D. 31.5 31.50 (Client = Ms. Annette M. Dallas) and (Type = Time) and ((Timekeeper = Burkett, Marisa) or (Timekeeper = Eaglin, Paul B.) or (Timekee...   

Exhibit C Paralegal Time

Exhibit C Ledger Dallas, Annette M. Date  Subject Hours Timekeeper 3/18/2016 Files received, reviewed and processed from referral source for Attorney review 0.6 Callahan, Michelle 3/18/2016 Correspondence to Client re: Prospect acknowledgment letter mailed 0.2 Callahan, Michelle 3/25/2016 Telephone call with Client re: Debt conference call, explained process 0.4 Callahan, Michelle 4/19/2016 FDC prospect packet prepared for Client completion 0.6 Callahan, Michelle 4/19/2016 Telephone call to Client re: Acceptance of case, review forms- left VM 0 Callahan, Michelle 4/21/2016 Telephone call to Client re: Acceptance of case, review forms- left VM 0 Callahan, Michelle 4/22/2016 Telephone call with Client re: Assistance with in forma pauperis application 0.3 Callahan, Michelle 4/22/2016 FDC prospect packet sent to Client via Right Signature 0.2 Callahan, Michelle 4/25/2016 FDC prospect packet returned via Right Signature, reviewed for completion 0.3 Callahan, Michelle 5/9/2016 Federal Court -Accept Letter - New FDC Filing 0.3 Smith, Michael P. 7/22/2016 Telephone call with Clerk re: Status of in forma pauperis application & summons 0.2 Callahan, Michelle 8/5/2016 Federal Court-service of process-prepare service packets USAO, OGC, AG 0.6 Callahan, Michelle 8/22/2016 Compile and file proof of service via CM / ECF 0.3 Callahan, Michelle 10/12/2016 Email to Opposing Counsel re: Magistrate jurisdiction 0.1 Lockwood, Tamica 10/12/2016 Combine, strip PDF/A, OCR and live bookmark federal court transcript (909 pgs) 1 Lockwood, Tamica 9/28/2017 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 9/28/2017 Federal Court-Remand Referral back to Referral Source 0.3 Graser, Jonnah 10/6/2017 Telephone call with Client re: Reviewing remand and process 0.2 Gifford, Kyrsten 12/1/2017 Telephone call with Client re: Attorney's fees 0.2 Persse, Shannon 12/18/2017 EAJA Preparation 1.5 Persse, Shannon 12/21/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 8.40 (Type = Time) and (Client = Ms. Annette M. Dallas) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Gifford, Kyrsten) or (Ti...   

Exhibit D Expenses

Exhibit D Ledger Dallas, Annette M. Date - I Subject 8 / 5 / 2016 Certified mail expense Summons and Complaint packets to Defendants Amount Timekeeper $ 17. 25 Callahan, Michelle $ 17. 25

Exhibit E Affirmation and Waiver of Direct Payment of EAJA Fees

Exhibit E UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA (PHOENIX DIVISION) -------------------------------------------------------------- MS. ANNETTE M. DALLAS, AFFIRMATION AND WAIVER OF DIRECT PAYMENT Plaintiff, OF EAJA FEES v. Civil Action No.: _________________ CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------------------------- Ms. Annette M. Dallas, 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 22, 2016. __________________________ Ms. Annette M. Dallas Plaintiff

Memorandum in Support

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Annette M. Dallas 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Annette M. Dallas, 13 14 Plaintiff, Civil No. 2-16-cv-01392-JJT 15 16 vs. MEMORANDUM IN SUPPORT OF 17 PLAINTIFF'S PETITION FOR 18 Nancy A. Berryhill, Acting COUNSEL FEES ALLOWANCE Commissioner of Social Security, UNDER EQUAL ACCESS TO 19 JUSTICE ACT, 28 U.S.C. § 2412 20 Defendant 21 22 Memorandum in Support of Plaintiff's Petition for Counsel Fees 23 Allowance Under Equal Access to Justice Act 24 1. This is a memorandum in support of a petition for an award of 25 Counsel Fees under the Equal Access to Justice Act 28 U.S.C.A. § 2412 "EAJA." 26 27 28 Page 9 1 2. An EAJA award is available to a "prevailing party" in a case against 2 the Federal Government, including Social Security cases, in the following 3 4 instances: 5 (a) When and if the plaintiff actually "prevails"; 6 (b) The Government's position in litigation is "not substantially 7 8 justified"; 9 (c) Plaintiff is a party whose net assets are worth less than two 10 million dollars; and 11 (d) The case has concluded with a "final order" which is non- 12 13 appealable, or will not be appealed. 14 3. Addressing these elements in reverse order, it is clear that the 15 Plaintiff has met the burden necessary to receive EAJA fees. 16 17 (a) Plaintiff's net worth did not exceed $2,000,000.00 when this 18 action was filed. 19 (b) After service of the summons and complaint, and filing of 20 21 briefs by both parties, the Court issued a Decision and Order remanding to the 22 Commissioner for calculation of benefits under sentence four 42 U.S.C.A. § 23 405(g). 24 25 (c) Judgment was entered on September 25, 2017. The Judgment 26 has not been appealed. 27 (d) Plaintiff has prevailed because the District Court remanded 28 Page 10 1 the case under sentence four of 42 U.S.C.A. § 405(g). Shalala v. Schaefer, 509 2 U.S. 292, 113 S. Ct. 2625, 125 L. Ed. 2d 239 (1993). 3 4 4. The commissioner was not substantially justified. As the U. S. 5 Supreme Court has held, "the required 'not substantially justified' allegation imposes no 6 proof burden on the fee applicant. It is, as its text conveys, nothing more than an 7 8 allegation or pleading requirement. The burden of establishing 'that the position of the 9 United States was substantially justified' … must be shouldered by the Government." 10 Scarborough v. Principi, 541 U.S. 401, 124 S. Ct. 1856, 158 L. Ed. 2d 674 (2004) 11 While the fee applicant such as Plaintiff is required to "show" three of the 12 13 four elements—prevailing party status, financial eligibility, and amount sought— 14 Plaintiff need only "to allege" that the position of the government is not 15 substantially justified. Id. 16 17 WHEREFORE, because all four elements of an allowable application for 18 EAJA fees have been proven, petitioner requests that the Court issue an order: 19 20 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,909.42; 21 and 22 2. Awarding Expenses in the amount of $17.25; and 23 3. If the Plaintiff has no debt registered with the Department of Treasury 24 25 subject to offset that the fees be made payable to the attorney. 26 27 28 Page 11 1 Executed this December 22, 2017 2 3 Respectfully submitted, 4 /s/ Howard D. Olinsky 5 Howard D. Olinsky, Esq. 6 Admitted Pro Hac Vice Attorney for Plaintiff 7 Email: fedct@windisability.com 8 To: Elizabeth A. Strange, Esq. 9 Acting United States Attorney 10 Lars J. Nelson, Esq. 11 Special Assistant United States Attorney Office of the General Counsel 12 Social Security Administration 13 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 14 State Bar No. MN0389274 15 Telephone: (206) 615-2732 Facsimile: (206) 615-2531 16 Email: lars.nelson@ssa.gov 17 Attorneys for Defendant 18 19 20 21 22 23 24 25 26 27 28 Page 12

Certificate of Service

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Annette M. Dallas 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Annette M. Dallas, 13 14 Plaintiff, Civil No. 2-16-cv-01392-JJT 15 vs. CERTIFICATE OF SERVICE 16 17 18 Nancy A. Berryhill, Acting 19 Commissioner of Social Security, 20 Defendant 21 22 Certificate of Service 23 I certify that I have electronically moved for EAJA fees with the Clerk of 24 25 the District Court using the CM/ECF system, which sent notification of such filing 26 to: 27 28 Page 15 1 To: Elizabeth A. Strange, Esq. 2 Acting United States Attorney 3 Lars J. Nelson, Esq. Special Assistant United States Attorney 4 Office of the General Counsel 5 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 6 Seattle, WA 98104-7075 7 State Bar No. MN0389274 Telephone: (206) 615-2732 8 Facsimile: (206) 615-2531 9 Email: lars.nelson@ssa.gov 10 11 Attorneys for Defendant 12 13 December 22, 2017 14 15 /s/ Howard D. Olinsky Howard D. Olinsky, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 16

Certificate of Local Rule 54.2 (D) (1)

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Annette M. Dallas 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Annette M. Dallas, 13 14 Plaintiff, Civil No. 2-16-cv-01392-JJT 15 16 vs. CERTIFICATE OF LOCAL RULE 17 54.2 (D) (1) 18 Nancy A. Berryhill, Acting 19 Commissioner of Social Security, 20 Defendant 21 22 Certificate of Local Rule 54.2 (D) (1) 23 I certify that I have conferred with Counsel for Defendant via emails on 24 25 December 21, 2017 regarding Plaintiff's Motion for Attorney's Fees Pursuant to 26 the Equal Access to Justice Act. This motion was sent to an attorney that is no 27 longer with Region X of the Office of General Counsel. He indicated her would 28 Page 13 1 forward to a colleague. This motion was forwarded to the assigned attorney, 2 Martha Boden on December 21, 2017 via email. I have not received a response to 3 4 this motion to date. Due to filing deadline, I have emailed the Defendant and 5 advised I would file as opposed and indicate she was accessing her position on 6 December 22, 2017. Opposing counsel presently opposes Plaintiff's request. 7 8 To: Elizabeth A. Strange, Esq. 9 Acting United States Attorney 10 Lars J. Nelson, Esq. 11 Special Assistant United States Attorney Office of the General Counsel 12 Social Security Administration 13 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 14 State Bar No. MN0389274 15 Telephone: (206) 615-2732 Facsimile: (206) 615-2531 16 Email: lars.nelson@ssa.gov 17 18 Attorneys for Defendant 19 20 December 22, 2017 21 /s/ Howard D. Olinsky 22 Howard D. Olinsky, Esq. 23 24 25 26 27 28 Page 14

NOTICE OF ATTORNEY SUBSTITUTION: Thomas M. Elsberry appearing for Commissioner of Social Security Administration. Attorney Lars J Nelson terminated.

1 Elizabeth A. Strange First Assistant United States Attorney 2 District of Arizona 3 Thomas M. Elsberry 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA26456 8 Fax: (206) 615-2531 thomas.elsberry@ssa.gov 9 Telephone: (206) 615-2112 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Annette M. Dallas, No. CV-16-01392-PHX-JJT 14 15 Plaintiff, 16 DEFENDANT'S NOTICE OF vs. SUBSTITUTION 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 PLEASE TAKE NOTICE that the Defendant in the above-entitled action, 22 23 without waiving any objection to, inter alia, service, venue, or jurisdiction, hereby 24 gives Notice that Lars J. Nelson is withdrawn as counsel to the Commissioner of 25 Social Security. All future mailings regarding this case should be sent to: 26 27 28 1 Thomas M. Elsberry Special Assistant United States Attorney 2 Office of the General Counsel 3 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 4 Seattle, WA 98104-7075 5 State Bar No. WA26456 Fax: (206) 615-2531 6 thomas.elsberry@ssa.gov Telephone: (206) 615-2112 7 8 You are advised that service of all further pleadings, notices, documents or other 9 papers herein, not filed electronically, may be made upon Defendant by serving the above- 10 named attorneys at their respective addresses. 11 12 DATED this 27th day of December 2017. 13 Respectfully submitted, 14 15 ELIZABETH A. STRANGE Acting United States Attorney 16 District of Arizona 17 s/ Thomas M. Elsberry 18 THOMAS M. ELSBERRY 19 Special Assistant United States Attorney 20 Of Counsel for the Defendant: 21 MATHEW W. PILE 22 Acting Regional Chief Counsel, Social Security Administration Office of the General Counsel, Region X 23 701 Fifth Avenue, Suite 2900 M/S 221A 24 Seattle, WA 98104-7075 25 26 27 28 2 1 2 3 CERTIFICATE OF SERVICE 4 I hereby certify that the foregoing Notice of Substitution was filed with the Clerk of 5 6 the Court on December 27, 2017, using the CM/ECF system which will send notification 7 of such filing to the following: Howard D. Olinsky. 8 9 s/ Barbara Eadie 10 BARBARA EADIE Paralegal Specialist 11 Office of the General Counsel 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

RESPONSE to Motion re: [24] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, Opposed filed by Commissioner of Social Security Administration.

1 Elizabeth A. Strange First Assistant United States Attorney 2 District of Arizona 3 Thomas M. Elsberry 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA26456 8 Fax: (206) 615-2531 thomas.elsberry@ssa.gov 9 Telephone: (206) 615-2112 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Annette M Dallas, No. CV-16-1392-PHX-JJT 14 15 Plaintiff, 16 DEFENDANT'S RESPONSE TO vs. PLAINTIFF'S MOTION FOR 17 ATTORNEY FEES Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 Defendant, the Commissioner of Social Security, files this response to Plaintiff's 22 request for an award of attorney's fees pursuant to 28 U.S.C. § 2412 as set forth in 23 Plaintiff's Motion (Docket #24). The Commissioner has given substantive consideration to 24 25 the merits of Plaintiff's request and found no basis to object. Therefore, Defendant has no 26 objection to this request and will defer to the Court's assessment of the matter. 27 28 1 DATED this 5th day of January 2018. 2 Respectfully submitted, 3 ELIZABETH A. STRANGE 4 First Assistant United States Attorney 5 District of Arizona 6 s/ Thomas M. Elsberry THOMAS M. ELSBERRY 7 Special Assistant United States Attorney 8 Of Counsel for the Defendant: 9 10 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 11 Office of the General Counsel, Region X 12 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 13 14 15 16 CERTIFICATE OF SERVICE 17 I hereby certify that the foregoing Defendant's Response to Plaintiff's 18 19 Motion for Attorney Fees was filed with the Clerk of the Court on January 5, 2018, 20 using the CM/ECF system, which will send notification of such filing to the 21 following: Howard D Olinsky. 22 23 s/ Timothy Shaw 24 TIMOTHY SHAW 25 Paralegal Specialist Office of the General Counsel 26 27 28 2

ORDER - IT IS HEREBY ORDERED that attorney fees (re: motion at [24]) in the total amount of $6,909.42 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) are awarded to Plaintiff. Astrue v. Ratliff, 130 S. Ct. 2521 (2010). IT IS FURTHER ORDERD that Plaintiff is awarded $17.25 in expenses for Certified Mail for service of Summons and Complaint. (See document for complete details). Signed by Judge John J Tuchi on 1/18/18.

1 NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Annette M Dallas, No. CV-16-01392-PHX-JJT 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 At issue is Plaintiff's Motion for Attorney's Fees Pursuant to the Equal Access to 17 Justice Act, 28 U.S.C.A. § 2412 (West) (Doc. 24). Defendant filed a Response with no 18 objections (Doc. 27). Upon review and good cause appearing; 19 IT IS HEREBY ORDERED that attorney fees in the total amount of $6,909.42 20 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) are awarded to Plaintiff. 21 Astrue v. Ratliff, 130 S. Ct. 2521 (2010). 22 IT IS FURTHER ORDERD that Plaintiff is awarded $17.25 in expenses for 23 Certified Mail for service of Summons and Complaint. 24 If the U.S. Department of the Treasury determines that Plaintiff's EAJA fees are 25 not subject to offset allowed under the Department of the Treasury's Offset Program 26 (TOPS), then the check for EAJA fees shall be made payable to Plaintiff's attorney, 27 Howard D. Olinsky. 28 1 Whether the check is made payable to Plaintiff or to Howard D. Olinsky, the 2 check shall be mailed to Howard D. Olinsky at the following address: 3 4 Howard D. Olinsky 300 South State Street 5 Suite 420 Syracuse, NY 13202 6 Dated this 18th day of January, 2018. 7 8 9 Honorable John J. Tuchi United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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Description
1
05/06/2016
COMPLAINT filed by Annette M Davis. (submitted by Howard Olinsky)
1
Letter
2
Civil Cover Sheet)(REK
2 Attachments
2
05/06/2016
APPLICATION for Leave to Proceed In Forma Pauperis by Annette M Davis. (submitted by Howard Olinsky)
3
05/06/2016
SUMMONS Submitted by Annette M Davis. (submitted by Howard Olinsky)
1
Summons
2
Summons)(REK
2 Attachments
4
05/06/2016
This case has been assigned to the Honorable John J. Tuchi. All future pleadings or documents should bear the correct case number: CV-16-01392-PHX-JJT. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached.
5
05/09/2016
AMENDED COMPLAINT, correcting Plaintiff's last name to Dallas, against Carolyn W Colvin filed by Annette M Davis.
1
Letter to Clerk
1 Attachment
6
05/11/2016
MOTION for Admission Pro Hac Vice as to attorney Howard D. Olinsky by Annette M Dallas.
1
Letter to Clerk
1 Attachment
7
05/11/2016
NOTICE TO FILER OF DEFICIENCY re: 6 MOTION for Admission Pro Hac Vice as to attorney Howard D. Olinsky filed by Annette M Dallas. Pro Hac Vice motion submitted with state court certificate of good standing. FOLLOW-UP ACTION REQUIRED: Please resubmit motion in paper form with original certificates of good standing from a federal court. FOLLOW-UP ACTION REQUIRED: Please refile corrected document. Deficiency must be corrected within seven business days of this notice. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
8
05/11/2016
MOTION for Admission Pro Hac Vice as to attorney Howard D. Olinsky inc. federal court certificate of good standing to correct deficiency by Annette M Dallas.
1
Letter to Clerk
1 Attachment
05/17/2016
PRO HAC VICE FEE PAID. $ 35, receipt number PHX171988 as to Howard D Olinsky. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
9
05/17/2016
ORDER pursuant to General Order 09-08 terminating 6 Motion for Admission Pro Hac Vice; granting 8 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
10
07/22/2016
ORDER: Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs 2 is granted; Plaintiff is responsible for service of the Summons and Amended Complaint on Defendant. Signed by Judge John J Tuchi on 7/22/16.
11
07/25/2016
Summons Issued as to Carolyn W Colvin, U.S. Attorney and U.S. Attorney General.
1
Summons
2
Summons)(BAS
2 Attachments
12
08/19/2016
NOTICE OF ATTORNEY APPEARANCE: Lars J Nelson appearing for Carolyn W Colvin.
13
08/22/2016
*SERVICE EXECUTED filed by Annette M Dallas: Return of Service re: Summons and Complaint upon US Attorney's Office, Office of General Counsel, Attorney General on 8/8/2016, 8/8/2016, and 8/10/2016. *Modified to include information on 8/23/2016
14
09/29/2016
SOCIAL SECURITY SCHEDULING ORDER issued. (See attached Order for deadlines and details). Signed by Judge John J Tuchi on 9/29/16. (JAMA)
15
10/11/2016
ANSWER to 5 Amended Complaint by Carolyn W Colvin.
16
10/11/2016
NOTICE of Filing Certified Copy of Administrative Transcript re: 15 Answer to Amended Complaint filed by Carolyn W Colvin.
1
001 Certification Page
2
002 Court Transcript Index
3
003 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable
4
004 Payment Documents and Decisions
5
005 Jurisdictional Documents and Notices
6
006 Non Disability Related Development
7
007 Disability Related Development
8
008 Medical Records Part 1
9
009 Medical Records Part 2
10
010 Medical Records Part 3
11
011 Medical Records Part 4
11 Attachments
17
12/12/2016
OPENING BRIEF by Annette M Dallas Social Security appeal.
18
01/10/2017
First MOTION for Extension of Time to File Responsive Brief, Unopposed by Carolyn W Colvin.
1
Text of Proposed Order
1 Attachment
19
01/10/2017
DECLARATION of Lars J. Nelson re: 18 First MOTION for Extension of Time to File Responsive Brief, Unopposed by Defendant Carolyn W Colvin.
20
01/11/2017
ORDER: IT IS ORDERED granting 18 Defendant's Motion for Extension of Time to file Defendant's response to Plaintiff's opening brief. Defendant has until February 9, 2017, to file her response brief. Signed by Judge John J Tuchi on 1/11/17.(JAMA)
21
02/09/2017
RESPONSE BRIEF by Commissioner of Social Security Administration.
22
09/25/2017
ORDER reversing the September 24, 2014 decision of the Administrative Law Judge, (R. at 21-34), as upheld by the Appeals Council on March 4, 2016, (R. at 1-3). ORDERED remanding this case to the Social Security Administration for a calculation of benefits. FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case. Signed by Judge John J Tuchi on 9/25/17.
23
09/25/2017
CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed September 25, 2017, the decision of the Commissioner of Social Security is reversed, and this case is remanded to the Social Security Administration for further proceedings consistent with the Order.
24
12/22/2017
First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, Opposed by Annette M Dallas.
1
Text of Proposed Order
1 Attachment
25
12/22/2017
AFFIDAVIT in Support re: [24] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, Opposed filed by Annette M Dallas.
1
Exhibit A All Professional Time
2
Exhibit B Attorney Time
3
Exhibit C Paralegal Time
4
Exhibit D Expenses
5
Exhibit E Affirmation and Waiver of Direct Payment of EAJA Fees
6
Memorandum in Support
7
Certificate of Service
8
Certificate of Local Rule 54.2 (D) (1)
8 Attachments
26
12/27/2017
NOTICE OF ATTORNEY SUBSTITUTION: Thomas M. Elsberry appearing for Commissioner of Social Security Administration. Attorney Lars J Nelson terminated.
27
01/05/2018
RESPONSE to Motion re: [24] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, Opposed filed by Commissioner of Social Security Administration.
28
01/18/2018
ORDER - IT IS HEREBY ORDERED that attorney fees (re: motion at [24]) in the total amount of $6,909.42 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) are awarded to Plaintiff. Astrue v. Ratliff, 130 S. Ct. 2521 (2010). IT IS FURTHER ORDERD that Plaintiff is awarded $17.25 in expenses for Certified Mail for service of Summons and Complaint. (See document for complete details). Signed by Judge John J Tuchi on 1/18/18.
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