Duron v. Berryhill
Court Docket Sheet

District of Alaska

3:2017-cv-00147 (akd)

COMPLAINT against Nancy A. Berryhill (Filing fee $ 400. Receipt # 08453G), filed by Deidre Leanora Duron.

1 Edward A. Wicklund, Esq. 2 N. Y. Bar No. 5027818 Attorney for Plaintiff, pending admission pro hac vice Olinsky Law Group 300 S. State Street, Suite 420 Syracuse, NY 13202 Tel: 315 701 5780 Fax: 315 701 5781 6 twicklund@windisability.com UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA 10 DEIDRE LEANORA DURON, Soc. Sec. # XXX-XX-6033, 11 Plaintiff,) CASE NO. 12 13 V 14 NANCY A. BERRYHILL, acting 15 Commissioner of Social Security, 16 Defendant. 17 18 19 COMPLAINT 42 U. S. C. S405 (8), Social Security Disability Appeal 20 Plaintiff, Deidre Leanora Duron, by her attorney, Edward A. Wicklund, 22 alleges as follows: 1. The jurisdiction of this Court is invoked pursuant to 42 U. S. C. 8 24 25 405 (g) to review a decision of the Commissioner of Social Security denying 26 Plaintiff's application for Social Security Disability Insurance benefits for lack of 27 28 disability. Case 3: 17-cv-00147-HRH Document 1 Filed 07/05/17 Page 1 of 3 2. This action is an appeal from a final administrative decision denying Plaintiff's claim. 3. This action is commenced within the appropriate time period set forth in the attached notice of decision dated May 3, 2017 (exhibit A) which in its 7 entirety 1 became the final agency decision on July 3, 2017, which further provides 8 60-days to file a civil action. 10 4. Plaintiff, whose social security number is XXX-XX-6033, resides in 11 Anchorage, Anchorage County, Alaska, which is within this judicial district. 12 5. The Defendant, Nancy A. Berryhill, is the acting Commissioner of 13 14 Social Security of the United States of America. 15 6. Plaintiff is disabled. 16 7. The conclusions and findings of fact of the Defendant are not 18 supported by substantial evidence and are contrary to law and regulation. 19 20 WHEREFORE, Plaintiff prays that this Court: 21 1. Find that the Plaintiff is entitled to Social Security Disability 22 Insurance benefits under the provisions of the Social Security Act; or 24 2. Remand the case for a further hearing; 25 3. Award attorney's fees under the Equal Access to Justice Act, 28 26 27 U. S. C. $ 2412, on the grounds that the Commissioner s action in this case was not 28 substantially justified, and Case 3: 17-cv-00147-HRH Document 1 Filed 07 05/17 Page 2 of 3 4. Order such other and further relief as the Court deems just and proper. Dated this 5th day of July, 2017. 10 11 BY:/s/Edward A. Wicklund Edward A. Wicklund, Esq. N. Y. Bar No. 5027818 Attorney for Plaintiff, pending admission pro hac vice Olinsky Law Group 300 S. State Street, Suite 420 Syracuse, NY 13202 t: (315) 701-5780 f (315) 701-5781 e: twicklund@windisability.com 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3: 17-cv-00147-HRH Document 1 Filed 07/05/17 Page 3 of 3

Exhibit A

EXHIBIT A Case 3: 17-cv-00147-HRH Document 1-1 Filed 07/05/17 Page 1 of 4 title SOCIAL SECURITY ADMINISTRATION Office of Disability Adjudication and Review SSA ODAR Anchorage 6th Floor Suite 610 188 W Nthrn Lights Blvd. Anchorage, AK 99503 Date: May 3, 2017 Deidre Leanora Duron figy. ary Notice of Decision-Unfavorable I carefully reviewed the facts of your case and made the enclosed decision. Please read this notice and my decision. If You Disagree With My Decision If you disagree with my decision, you or your representative may submit written exceptions to the Appeals Council. Written exceptions " are your statements explaining why you disagree with my decision. Please put the Social Security number shown above on any written exceptions you Send Please send your written exceptions to: Appeals Council Office of Disability Adjudication and Review 5107 Leesburg Pike Falls Church, VA 22041-3255 If you need help, you may file in person at any Social Security or hearing office. Time Limit To File Written Exceptions (30 Days) You must file your written exceptions with the Appeals Council within 30 days of the date you get this notice. The Appeals Council assumes that you got this notice within 5 days after the date of the notice unless you show that you did not get it within the 5-day period. E If you need more time to file your written exceptions, you must file a written request with the Appeals Council. You must file the request for an extension within 30 days of the date you get this notice. If you request more than 30 days, you must explain why you need the extra time. The Appeals Council will decide whether to grant your request for more than a 30-day extension. Farm HA-L76-OP2 (03-2010) Suspect Social Security Fraud? Please visit http:/loig. ssa.gov/r or call the Inspector General's Fraud Hotline at 1-800-269-0271 (TTY 1-866-501-2101). Case 3: 17-cv-00147-HRH Document-IBMiled 07 05/17 Page 2 of 4 See Next Pay Deidre Leanora Duron (6033) Page 2 of 3 How Written EIceptions Work The Appeals Council will consider your entire case. It will consider all of my decision, even the parts with which you agree The Appeals Council's action may be more or less favorable or unfavorable to you. The rules the Appeals Council uses are in the Code of Federal Regulations, Title 20, Chapter III, Part 404 (Subpart J). The Appeals Council may • Find that there is no reason to change my decision, Dismiss your case, • Return your case to me or another administrative law judge for a new decision, or • Issue its own decision. The Appeals Council will send you a notice telling you what it decides to do. If the Appeals Council does not change my decision, my decision will become the final decision after remand. Any future claim you file will not change a final decision on this claim if the facts and issues are the same. The Appeals Council May Review My Decision On Its Own The Appeals Council may review my decision even if you do not file written exceptions. The Appeals Council will notify you within 60 days of the date of this notice if it decides to review your case. Filing An Action In Federal District Court If you do not file written exceptions and the Appeals Council does not review my decision on its own, my decision will become final on the 61 day following the date of this notice. After my decision becomes final, you will have 60 days to file a new civil action in Federal district court. You will lose the right to a court review if you do not file a civil action during the 60-day period starting with the day my decision becomes final. However, you can ask the Appeals Council to give you more time to file a civil action. The Appeals Council will grant your request for more time only if you can show a good reason for needing more time. We will not send you any more notices about your right to file in Federal district court. New Application Form HA-L76-OP2 (03-2010) See Next Page Case 3: 17-cv-00147-HRH Document 1-1 Filed 07/05/17 Page 3 of 4 Deidre Leanora Duron 6033) Page 3 of 3 You have the right to file a new application at any time, but filing a new application is not the same as filing exceptions to my decision or filing a civil action in Federal court. If you disagree with my decision and you file a new application instead of filing written exceptions or appealing to Federal court, you might lose some benefits or not qualify for benefits at all. My decision could also be used to deny a new application for benefits if the facts and issues are the same. If you think my decision is wrong, you should file your exceptions within 30 days or file a new civil action between the 61 " and 121 days after the date of this notice. If You Have Any Questions We invite you to visit our website located at www.socialsecurity.gov to find answers to general questions about social security. You may also call (800) 772-1213 with questions. If you are deaf or hard of hearing, please use our TTY number (800) 325-0778 If you have any other questions, please call, write, or visit any Social Security office. Please have this notice and decision with you. The telephone number of the local office that serves your area is (866) 772-3081. Its address is: Social Security 222 W 8th Ave Ms 66 Anchorage, AK 99513-7505 Paul T. Hebda Administrative Law Judge Enclosures: Decision Rationale Form HA-L39 (Exhibit List) CC: Bradford D. Myler Law Offices of Brad D. Myler & Associates P. O. Box 127 Lehi, UT 84043-0127 Fom HA-L76-OP2 (03-2010) Case 3: 17-cv-00147-HRH Document 1-1 Filed 07/05/17 Page 4 of 4

Civil Cover Sheet

JS 44 (Rev. 1/15) CIVIL COVER SHEET ion contal bed herein neither replace nor supp provided by rules of court This form, approved by the Judicial Conference of the United States in September 1974 plendinFreove acroF HERE tired of re of initiating the The JS 44 civil cover she and the info as I. (a) PLAINTIFFS Deidre Leanora Duron DEFENDANTS Commissioner of SSA, Office of Regional Chief Counsel, Region X, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104-7075 County of Residence of First Listed Plaintiff Anchorage (EXCEPT IN U. S. PLAINTIFF CASES) County of Residence of First Listed Defendant IN U. S. PLAINTIFF CASES ONLY) NOTE: INLAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. EdardA Weindl and lender Healer roup 200 S. State St, Ste. US Attorney for the District of Alaska, 222 W. 7th St, Room 253, # 9, 420, Syracuse, NY 13202, (315) 701 5780 Attorneys (IF Kr Anchorage, AK 99513 I. BASIS OF JURISDICTION One Box Only) U. S. Governme tiff 0 3 Fede Quest (U. S. Gor Party) III. CITIZENSHIP OF PRINCIPAL PARTIES (P1 One Box for P1 (For Di ity Co Only) ad One Box for Defendant) PTF DEF PTF DEF Citize of This State Incorporated or Princ ipal PI 04 D 4 of B1 his S *? usement as Dvotiate concentiporaries in items to citizen of Arnote same 0 2 0 a 3 O 3 Foreign Nation ted and P; ipal P! of B State o 5 a 5 Subject of: 06 0 6 IV. NATURE OF SUIT (Place an One B Only LAS CONTRACT PETER SAFER TORTS REPRESENT AIR FORFEITURE PENALTY BANKRUPTCY OR OTHER STATUTES FEES 10 Ins PERSONAL INJURY PERSONAL INJURY 0 625 Drug R ed S. 0 422 Appeal 28 USC 0 375 FE 0 M O 310 Airpl O 365 P Injury of Property USC 88 0 423 withdl 0 376 Qui T. (31 USC 0 130 Mi 0 315 Airpl Prodt Prod ability O 690 Oth 28 USC 157 3729 O 140 Negotiab! Liabi 0 367 Care 0 400 State Reapportic CO 150 Ro very of Overpay a 320 As Libel & Phai PROPERTYRIGHTS 0 410 Antitrust & Enforcement of Judgment Slando Injury O 820 Copyrights 0 430 Banks 1d Banking 0 151 Medicare a 330 Fed Employe Prod Liability 0 830 P; O 450 Commerce O 152 Ro ery of Defa ability D 368 Asbo 0 840 Trade 0 460 Deportatio Stude O 340 Me Injury Prod a 470 Rack d and ides Ve eterans 0 345 Mt Prod Liability ERN ENLABOR ON SOCIAL SECURITY HAS REED upt Org 0 153 Ro ery of Overpay1 ability PERSONAL PROPERTY 0 710 F. Labor Standards O 861 HIA (1 395ff) 0 480 Co of V. efits O 350 Mo Vehi 0 370 Other F 0 862 Black Lung (92 I 490 Cable/Sat TV 0 160 Stockhold Suits 0 355 Motor Vehi 0 371 Truth in Lending 0 720 Labor Ma 863 DIWCIDIWW (405 () 0 850 S. ities/Co o 190 O1 Contre Prod ability a 380 Other P. 0 864 SSID T XVI O 195 Contr Prodi Liability a 360 Other P. Property D. 0 740 Rai by Labor A 0 865 RSI (405 (g). O 890 Oth Statut ary A 0 196 F. D 385 Prope erty D 0 751 F. ly and Medi D 891 Agry 0 362 Pe Injury Prod Liability O 893 Er Matto Medi 0 790 Other Labor Litig O 895 Freedo of Infc TREAL PROPERTY CIVIL RIGHTS is PRISONER PETITIONS 0 791 Employee R FEDERAL TAX SUITS 0 210 Land Cond O 440 Other C; Righ Habi Corp ity A 0 870 T;. S, Plaintiff O 896 Arbitra O 220 Foreclosure o 441 Voting 0 463 AI Detai Defend 0 899 Admi strative P edure 0 230 RE & E 0 442 Employme 0 510 Mo DS 0 871 IRS — Third Party Actre App 0 240 Torts to Land 0 443 Housing Senter 26 USC 7609 Age ey Dº 0 245 Tort Prod Liability datic 0 530 G; 0 950 Co ity of 0 290 AI ther Rs Property O 445 A1 Disabi O 535 Death P. IMMIGRATION State Statut Employn Oth 462 N. Appl CO 446 A Disabi O 540 Indamus & Othe 0 465 Othe Immigral Othe 0 550 Civil Rights O 44 Ed 0 555 P Iditio 0 560 CI Detail Condi Confit V. ORIGIN (Place One Box Only) 11 Origi O 2 Re ad fir a 3 R ided fr o 4 Reinstated or 0 5 Transferred from Proceeding State Court Appellate Court Another District (specify) cite the U. S. Civil Statute under which you are filing (Do 42 USC 405 (g) V1 CAUSE OF ACTION Brief descript O 6 M idistrict Litigation Bendarso a security Disability Insurance benefits. VII. REQUESTED IN COMPLAINT: a CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, F. R. Cv. P DEMANDS CHECK YES only if demanded in complaint JURY DEMAND 0 Ye No VIII. RELATED CASE(S) IF ANY JUDGE DOCKET NUMBER DATE 07/05/2017 SIGNATURE OF ATTORNEY OF RECORD/s/Edward A. Wicklund NY Bar No.: 5027818 FOR OFFICE USE ONLY Trm AMOUNT APPLYING IFP MAG. JUDGE Case 3: 17-cv-00147-HRH Document 2 Filed 07/06/17 Page 1 of 1

Unissued summons re Defendant Nancy Berryhill

AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Alaska DEIDRE LEANORA DURON Plaintiffs) Civil Action No. NANCY A. BERRYHILL, acting Commissioner of Social Security Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) Nancy A. Berryhill Commissioner of SSA Office of Regional Chief Counsel, Region X 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) – or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3) – you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 3: 17-cv-00147-HRH Document 3 Filed 07/05/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (1) This summons for (name of individual and title, if any) was received by me on (date) 0 I personally served the summons on the individual at (place) on (date) Or 0 I left the summons at the individual's residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date) and mailed a copy to the individual's last known address; or o I served the summons on (name of individual, who is designated by law to accept service of process on behalf of (name of organization) on (date) Or O I returned the summons unexecuted because Or 0 Other (specif): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc: Case 3: 17-cv-00147-HRH Document 3 Filed 07/05/17 Page 2 of 2

Unissued Summons re Defendant US Attorney General

AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Alaska DEIDRE LEANORA DURON Plaintiffs, Civil Action No. NANCY A. BERRYHILL, acting Commissioner of Social Security Defendant s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) United States Attorney General Constitution Avenue & 10th St., NW Washington, DC 20530 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff s attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St., Ste, 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must: file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 3: 17-cv-00147-HRH Document 3-1 Filed 07/05/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (1) This summons for (name of individual and title, if any) was received by me on (date) 0 I personally served the summons on the individual at (place) on (date) Or a I left the summons at the individual's residence or usual place of abode with (name) a person of suitable age and discretion who resides there, on (date); and mailed a copy to the individual's last known address; or o I served the summons on (name of individual who is designated by law to accept service of process on behalf of (name of organization) on (date) Or Do I returned the summons unexecuted because Or O Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc: Case 3: 17-cv-00147-HRH Document 3-1 Filed 07/05/17 Page 2 of 2

Unissued Summons re Defendant US Attorney

AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Alaska DEIDRE LEANORA DURON Plaintif(s) 5 Civil Action No. NANCY A. BERRY HILL, acting Commissioner of Social Security Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant s name and address) Civil Process Clerk United States Attorney's Office 222 W. 7th St, Rm. 253, # 9 Anchorage, AK 99513 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 3: 17-cv-00147-HRH Document 3-2 Filed 07/05/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (0) This summons for (name of individual and title, if any) was received by me on (date) O I personally served the summons on the individual at (place) on (date, Or o I left the summons at the individual's residence or usual place of abode with (name) a person of suitable age and discretion who resides there, on (date) and mailed a copy to the individual's last known address; or o I served the summons on (name of individual), who is designated by law to accept service of process on behalf of (name of organization) on (date) or O I returned the summons unexecuted because Or D Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc: Case 3: 17-cv-00147-HRH Document 3-2 Filed 07/05/17 Page 2 of 2

MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Edward A. Wicklund. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2357588.) by Deidre Leanora Duron.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA DEIDRE LEANORA DURON, Case No. 3: 17-cv-00147-HRH Plaintiffs), VS. NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant(s). MOTION AND APPLICATION OF NON-ELIGIBLE ATTORNEY FOR PERMISSION TO APPEAR AND PARTICIPATE IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA To the Honorable Judge of the above-entitled court: I, Edward A. Wicklund hereby apply for permission to appear and (name) participate as counsel for DEIDRE LEANORA DURON plaintiff (Name of party) (plaintiff defendant) in the above-entitled cause pursuant to Rule 83. 1 (d) of the Local Rules for the United States District Court, District of Alaska. I hereby apply for permission to appear and participate as counsel WITHOUT ASSOCIATION of local counsel because [check whichever of the following boxes apply, if any]: X I am a registered participant in the CMECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. I have concurrently herewith submitted an application to the Clerk of the Court for registration as a participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court s CM/ECF System. D For the reasons set forth in the attached memorandum. Case 3: 17-cv-00147-HRH Document 4 Filed 07 06/17 Page 1 of 4 OR I hereby designate a member of the Bar of this court, (Name) who maintains an office at the place within the district, with whom the court and opposing counsel may readily communicate regarding conduct of this case. DATE: June 19, 2017 (Signature) Edward A. Wicklund (Printed Name) (Address) (City/State/Zip) (Telephone Number) (e-mail address) Consent of Local Counsel Nhereby consent to the granting of the foregoing application. DATE: (Signature) (Printed Name) (Address) (City, State, Zip) lephone) (* Member of the Bar of the United States District Court for the District of Alaska) Case 3: 17-cv-00147-HRH Document 4 Filed 07/06/17 Page 2 of 4 DECLARATION OF NON-ELIGIBLE ATTORNEY Full Name: Edward A. Wicklund Business Address: 300 S. South Street, Ste. 420 5 Syracuse, NY 13202 Mailing/Street) (City, State, ZIP) Residence 313 E. Willow Street, Apt. 506 Syracuse, NY 13203 (Mailing/Street) (City, State, ZIP) Business Telephone: 315-701-5780 e-mail address: twicklund awindisability.com Other Names/Aliases: N/A Jurisdictions to Which Admitted and year of Admission: See attached sheet (Jurisdiction) (Address) (Year (Jurisdiction) (Address (Year (Jurisdiction) (Address) (Yea (Jurisdiction) (Address ear Are you the subject of any pending disciplinary proceeding in any jurisdiction to which admitted? Yes O No X (If Yes, provide details on a separate attached sheet) Have you ever been suspended from practice or disbarred in any jurisdiction to which admitted? Yes D Nio X (If Yes, provide details on a separate attached sheet) In accordance with D. AK. LR 83. 1 (d) (4) [A] (vi), I certify I have read the District of Alaska local rules by visiting the court's website at http://www akd. uscourts.gov and understand that the practices and procedures of this court may differ from the practices and procedures in the courts to which I am regularly admitted. A Certificate of Good Standing from a jurisdiction to which I have been admitted is attached. Pursuant to 28 U. S. C. S 1746, I hereby declare under penalty of perjury that the foregoing information is true, correct, and accurate. Dated: July 6, 2017 LO JD (Signature of Applicant) Case 3: 17-cv-00147-HRH Document 4 Filed 07 06/17 Page 3 of 4 Attachment to Pro Hac Vice Application for Edward A. Wicklund: Court New York State Court of Appeals for 2nd Circuit Court of Appeals for 9th Circuit U. S. D. C., NDNY U. S. D. C., NDOH U. S. D. C., EDMI Date of Admission In Good Standing? 02/23/2012 YES 01/08/2015 YES 04/28/2017 YES 07 29/2013 YES 08/05/2016 YES 02 24/2017 YES Case 3: 17-cv-00147-HRH Document 4 Filed 07/06/17 Page 4 of 4

Certificate of Good Standing

AO 136 (Rev. 10/13) Certificate of Good Standing UNITED STATES DISTRICT COURT for the Northern District of New York CERTIFICATE OF GOOD STANDING Lawrence K. Baerman, Clerk of this Court, certify that EDWARD A. WICKLUND Bar # 518285 was duly admitted to practice in this Court on July 29, 2013, and is in good standing as a member of the Bar of this Court. Dated at Syracuse, New York (Location) On June 16, 2017 (Date) A NSPIRITS, Ls city is Lawrence K. Baerman CLERK DEPUTY CLERK Case 3: 17-cv-00147-HRH Document 4-1 Filed 07/06/17 Page 1 of 1

ORDER granting [4] Motion for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA NANCY A. BERRYHILL, Acting DEIDRE LEANORA DURON v. Commissioner of Social Security JUDGE H. RUSSEL HOLLAND CASE NO. 3:17-cv-0147-HRH PROCEEDINGS: ORDER FROM CHAMBERS The court has reviewed the motion and application1 of non-resident attorney Edward A. Wicklund for permission to appear and participate in this case as counsel for plaintiff Deidre Leanora Duron without the association of local counsel. The motion is granted. 1 Docket No. 4. Order from Chambers – Application of Non-Resident Attorney-1-Case 3:17-cv-00147-HRH Document 5 Filed 07/10/17 Page 1 of 1

NOTICE of Appearance by Richard L. Pomeroy on behalf of Nancy A. Berryhill

BRYAN SCHRODER Acting United States Attorney RICHARD L. POMEROY Assistant U.S. Attorney 222 West Seventh Avenue, #9 Anchorage, Alaska 99513-7567 Phone: (907) 271-5071 Fax: (907) 271-2344 E-mail: Richard.Pomeroy@usdoj.gov Attorney for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA DEIDRE LEANORA DURON Case No. 3:17-cv-00147 HRH Plaintiff, v. ENTRY OF APPEARANCE NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. Richard L. Pomeroy, Assistant U.S. Attorney, hereby enters his appearance as an attorney of record for Nancy A. Berryhill, Acting Commissioner of Social Security, in the above-entitled matter and requests that copies of all pleadings filed be directed to him. Case 3:17-cv-00147-HRH Document 6 Filed 07/26/17 Page 1 of 2 RESPECTFULLY SUBMITTED, on July 26, 2017. BRYAN SCHRODER Acting United States Attorney s/Richard L. Pomeroy Assistant U.S. Attorney Attorney for the Defendant CERTIFICATE OF SERVICE I hereby certify that on July 26, 2017, a copy of the foregoing was served by electronic service to: Edward A. Wicklund, Esq. s/Richard L. Pomeroy 2 Case 3:17-cv-00147-HRH Document 6 Filed 07/26/17 Page 2 of 2

SOCIAL SECURITY SCHEDULING ORDER: Agency record due 60 days after defendant's initial appearance. Opening brief due 30 days after agency record is filed. Answering brief due 30 days after opening brief is filed. Reply brief is due 14 days after Defendant's brief. Signed by Judge H. Russel Holland on 8/1/17.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA DIEDRA LEANORA DURON, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. Case No. 3:17-cv-00147-HRH SOCIAL SECURITY SCHEDULING ORDER Pursuant to the Local Rules of the United States District Court for the District of Alaska (D.Ak. L.R.) 16.1(a)(7) and 16.3, the Court establishes the following deadlines: 1. Defendant shall electronically file and serve a certified copy of the agency record no later than 60 days after Defendant’s initial appearance. The agency record shall be conventionally served on a self-represented plaintiff. A conventional copy of the record need not be filed with the Court, but a conventional copy of the agency record shall be provided for use by the presiding judge. 2. Within 30 days after the filing of the agency record, Plaintiff shall file and serve an opening brief. Failure to timely file the opening brief may subject this case to dismissal. 3. Within 30 days after service of Plaintiff’s opening brief, Defendant shall file and serve an answering brief. 4. Plaintiff may file and serve a reply brief within 14 days after service of Case 3:17-cv-00147-HRH Document 7 Filed 08/01/17 Page 1 of 2 Defendant’s brief. 5. The opening and answering briefs shall not exceed 25 pages. A reply brief may not exceed 15 pages. 6. If Defendant files a motion to remand, Plaintiff shall have 14 days to respond. The motion and response shall not exceed 15 pages. No further briefing shall be filed unless otherwise ordered. 7. One extension of time of up to 14 days will be routinely granted for each filing. Any additional extensions of time will require a showing of good cause and will not be routinely granted. DATED at Anchorage, Alaska this 1th day of August, 2017. s/H.RUSSEL HOLLAND_________ UNITED STATES DISTRICT JUDGE Social Security Scheduling Order Page 2 of 2 Case 3:17-cv-00147-HRH Document 7 Filed 08/01/17 Page 2 of 2

SUMMONS Returned Executed by Deidre Leanora Duron. Nancy A. Berryhill served on 7/26/2017, answer due 9/25/2017.

Date Produced: 07/31/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0036 7891 26. Our records indicate that this item was delivered on 07/24/2017 at 11:19 a.m. in ANCHORAGE, AK 99501. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local post office or Postal Service representative. Sincerely, United States Postal Service Information in this section provided by Walz Group, LLC. Recipient Information: Civil Process Clerk United States Attorney's Office District of Alaska 222 W. 7th Street, Room 253, #9 Anchorage,AK 99513 Reference Number: Duron, D USAO Case 3:17-cv-00147-HRH Document 8 Filed 08/02/17 Page 2 of 6 Date Produced: 07/31/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0036 7892 18. Our records indicate that this item was delivered on 07/24/2017 at 01:09 p.m. in SEATTLE, WA 98104. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local post office or Postal Service representative. Sincerely, United States Postal Service Information in this section provided by Walz Group, LLC. Recipient Information: Office of Regional Chief Counsel Region X, SSA 701 Fifth Avenue, Suite 2900 M/S 221A Seattle,WA 98104 Reference Number: Duron, D OGC Case 3:17-cv-00147-HRH Document 8 Filed 08/02/17 Page 4 of 6 Date Produced: 07/31/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0036 7892 56. Our records indicate that this item was delivered on 07/26/2017 at 05:23 a.m. in WASHINGTON, DC 20530. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local post office or Postal Service representative. Sincerely, United States Postal Service Information in this section provided by Walz Group, LLC. Recipient Information: U.S. Attorney General Constitution Avenue & 10th St., N.W. Washington,DC 20530 Reference Number: Duron, D AG Case 3:17-cv-00147-HRH Document 8 Filed 08/02/17 Page 6 of 6

NOTICE of Appearance by Kathryn Ann Miller on behalf of Nancy A. Berryhill

1 BRYAN SCHRODER 2 Acting United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 KATHRYN A. MILLER Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone: (206) 615-2240 Fax: (206) 615-2531 11 kathryn.a.miller@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 DEIDRE LEANORA DURON, Case No. 3:17-cv-00147-HRH 16 Plaintiff, 17 DEFENDANT’S NOTICE vs. OF APPEARANCE 18 NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. PLEASE TAKE NOTICE that the Defendant in the above-entitled action, without waiving 21 any objection to, inter alia, service, venue, or jurisdiction, hereby gives Notice that the 22 Commissioner of Social Security will be represented by and through the attorney of record listed 23 below. 24 Page 1 DEFENDANT’S NOTICE OF APPEARANCE-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 9 Filed 09/07/17 Page 1 of 3 1 KATHRYN A. MILLER 2 Special Assistant United States Attorney Office of the General Counsel 3 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 4 Seattle, WA 98104-7075 Telephone: (206) 615-2240 5 Fax: (206) 615-2531 kathryn.a.miller@ssa.gov 6 You are advised that service of all further pleadings, notices, documents or other papers 7 herein, not filed electronically, may be made upon Defendant by serving the above-named 8 attorney at this address. 9 DATED this 7th day of September 2017. 10 Respectfully submitted, 11 BRYAN SCHRODER 12 Acting United States Attorney 13 RICHARD L. POMEROY Assistant United States Attorney 14 MATHEW W. PILE 15 Acting Regional Chief Counsel, Seattle, Region X 16 s/Kathryn A. Miller KATHRYN A. MILLER 17 Special Assistant United States Attorney Office of the General Counsel 18 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 19 Seattle, WA 98104-7075 Telephone: (206) 615-2240 20 Fax: (206) 615-2531 kathryn.a.miller@ssa.gov 21 22 23 24 Page 2 DEFENDANT’S NOTICE OF APPEARANCE-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 9 Filed 09/07/17 Page 2 of 3 1 2 CERTIFICATE OF SERVICE 3 I hereby certify that the foregoing Defendant’s Notice of Appearance was filed with the 4 Clerk of the Court on September 7, 2017, using the CM/ECF system, which will send notification 5 of such filing to the following: Edward A. Wicklund. 6 7 s/Barbara Eadie BARBARA EADIE 8 Paralegal Specialist Office of the General Counsel 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 3 DEFENDANT’S NOTICE OF APPEARANCE-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 9 Filed 09/07/17 Page 3 of 3

ANSWER to [1] Complaint by Nancy A. Berryhill.

1 BRYAN SCHRODER 2 Acting United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 KATHRYN A. MILLER Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone: (206) 615-2240 Fax: (206) 615-2531 11 kathryn.a.miller@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 DEIDRE L. DURON, Case No. 3:17-cv-00147-HRH 16 Plaintiff, 17 vs. DEFENDANT’S ANSWER 18 NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. 21 Defendant, through counsel, hereby files the following Answer to Plaintiff’s Complaint. 22 1. Defendant admits the allegations in paragraphs 1 and 2. 23 Page 1 DEFENDANT’S ANSWER-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 10 Filed 09/22/17 Page 1 of 4 1 2. With respect to paragraph 3, Defendant admits that an Administrative Law Judge 2 issued an unfavorable decision on May 3, 2017. Defendant neither admits nor 3 denies that the copy of the decision, which Plaintiff attached to the Complaint as 4 Exhibit A, is a correct or complete copy of that document. 5 3. With respect to paragraph 4, Defendant denies knowledge or information sufficient 6 to form a belief as to the truth of Plaintiff’s residence, and neither admits nor 7 denies the accuracy of the last four digits of Plaintiff’s social security number. 8 4. Defendant admits the allegations in paragraph 5. 9 5. Paragraphs 6 and 7 call for legal conclusions to which no response is required. To 10 the extent the Court requires a response, Defendant denies the allegations. 11 6. The remainder of the Complaint is a prayer for relief to which no response is 12 necessary. To the extent that a response is required, Defendant denies the 13 allegations and states that Plaintiff is not entitled to judgment or to the relief 14 sought. 15 7. With respect to Plaintiff’s request for attorney fees under the Equal Access to 16 Justice Act, should Plaintiff prevail and file an application for fees against the 17 United States in accordance with the requirements of 28 U.S.C. § 2412, enacted as 18 part of the Equal Access to Justice Act, the Commissioner reserves the right to 19 oppose any award under this statute. 20 8. Defendant denies all allegations of the Complaint not specifically admitted or 21 clarified. 22 23 Page 2 DEFENDANT’S ANSWER-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 10 Filed 09/22/17 Page 2 of 4 1 9. In accordance with 42 U.S.C. § 405(g), Defendant files as part of the answer a 2 certified copy of the transcript of the record including the evidence upon which 3 Defendant based the challenged decision. 4 WHEREFORE, Defendant prays for judgment dismissing the Complaint, with costs, and 5 for judgment in accordance with 42 U.S.C. § 405(g), affirming Defendant’s decision. 6 DATED this 22nd day of September 2017. 7 Respectfully submitted, 8 BRYAN SCHRODER 9 Acting United States Attorney 10 RICHARD L. POMEROY Assistant United States Attorney 11 MATHEW W. PILE 12 Acting Regional Chief Counsel, Seattle, Region X 13 s/Kathryn A. Miller KATHRYN A. MILLER 14 Special Assistant United States Attorney Office of the General Counsel 15 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 16 Seattle, WA 98104-7075 Telephone: (206) 615-2240 17 Fax: (206) 615-2531 kathryn.a.miller@ssa.gov 18 19 20 21 22 23 Page 3 DEFENDANT’S ANSWER-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 10 Filed 09/22/17 Page 3 of 4 1 2 CERTIFICATE OF SERVICE 3 I hereby certify that the foregoing Defendant’s Answer was filed with the Clerk of the 4 Court on September 22, 2017, using the CM/ECF system, which will send notification of such 5 filing to the following: Edward A. Wicklund & Olinsky Law Group. 6 7 s/Barbara Eadie BARBARA EADIE 8 Paralegal Specialist Office of the General Counsel 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Page 4 DEFENDANT’S ANSWER-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 10 Filed 09/22/17 Page 4 of 4

Notice of Lodging Administrative Record

1 BRYAN SCHRODER 2 Acting United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 KATHRYN A. MILLER Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone: (206) 615-2240 Fax: (206) 615-2531 11 kathryn.a.miller@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 DEIDRE L. DURON, Case No. 3:17-cv-00147-HRH 16 Plaintiff, 17 vs. NOTICE OF LODGING OF 18 ADMINISTRATIVE RECORD NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, by and through 21 counsel, submits conventionally the following administrative record in the above-entitled and 22 numbered cause of action. 23 Page 1 NOTICE OF LODGING OF ADMINISTRATIVE RECORD-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 11 Filed 09/22/17 Page 1 of 2 1 DATED this 22nd day of September 2017. 2 Respectfully submitted, 3 BRYAN SCHRODER 4 Acting United States Attorney 5 RICHARD L. POMEROY Assistant United States Attorney 6 MATHEW W. PILE 7 Acting Regional Chief Counsel, Seattle, Region X 8 s/Kathryn A. Miller KATHRYN A. MILLER 9 Special Assistant United States Attorney Office of the General Counsel 10 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 11 Seattle, WA 98104-7075 Telephone: (206) 615-2240 12 Fax: (206) 615-2531 kathryn.a.miller@ssa.gov 13 14 15 CERTIFICATE OF SERVICE 16 I hereby certify that the foregoing Notice of Lodging of Administrative Record was filed 17 with the Clerk of the Court on September 22, 2017, using the CM/ECF system, which will send 18 notification of such filing to the following: Edward A. Wicklund & Olinsky Law Group. 19 s/Barbara Eadie 20 BARBARA EADIE Paralegal Specialist 21 Office of the General Counsel 22 23 Page 2 NOTICE OF LODGING OF ADMINISTRATIVE RECORD-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 11 Filed 09/22/17 Page 2 of 2

Certification Page 08-28-2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA DEIDRE LEANORA DURON Plaintiff VS.) CIVIL ACTION NO. 3: 17-CV-00147 NANCY A. BERRYHILL ACTING COMMISSIONER OF SOCIAL SECURITY Defendant CERTIFICATION The undersigned, as Chief, Court Case Preparation and Review Branch 1, Office of Appellate Operations, Office of Disability Adjudication and Review, Social Security Administration, hereby certifies that the documents annexed hereto constitute a full and accurate transcript of the entire record of proceedings relating to this case. press NANCY CHUNG Date: August 28, 2017 * * * Certified Administrative Records (CAR) are not compatible with Optical Character Recognition (OCR), therefore the Agency cannot provide a OCR searchable CAR. Case 3: 17-cv-00147-HRH DocumRambo-1 Filed 09/22/17 Page 1 of 1

Court Transcript Index 08-28-2017

Court Transcript Index Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 12/02/2014 1-6 6 AC Correspondence (ACCORR), dated 08/08/2013 7-11 5 Request for Review of Hearing Decision/Order (HA 520), dated 12 1 08/01/2013 Representative Payee Determination Notice (REPPAYDETNOT), 13 1 dated 08/01/2013 Authorized Representative Cover Letter (AUTHRPCL), dated 14-15 2 08/01/2013 Appointment of Representative (1696), dated 08/01/2013 16 1 ALJ Hearing Decision (ALJDEC), dated 06/04/2013 17-31 15 Transcript of Oral Hearing (TRANHR), dated 02/11/2013 32-59 28 Exhibits Exhibit No. of No. Description Page No. Pages 1A Disability Determination Transmittal, dated 07/22/2012 60 1 2A Disability Determination Explanation, dated 07/22/2012 61-70 10 1B Appointment of Representative, Brad Myler, dated 71 1 11/06/2011 2B Representative Fee Agreement, dated 11/06/2011 72 1 3B Explanation of Determination, dated 07/22/2012 73-82 10 4B Request for Hearing by ALJ, dated 08/13/2012 83-84 2 5B Request for Hearing Acknowledgement Letter, dated 85-102 18 09/14/2012 6B Exhibit List-CD to Representative or Claimant Form # HA-L56 103-113 11 (03-200), dated 09/14/2012 7B Hearing Notice, dated 10/24/2012 114-131 18 8B Acknowledge Notice of Hearing, dated 11/02/2012 132 1 9B Representative Fee Agreement, dated 10/12/2012 133 1 10B Appointment of Representative, dated 10/12/2012 134 1 11B Request Vocational Expert Attendance at Hearing, dated 135-136 2 01/08/2013 12B Request Vocational Expert Attendance at Hearing, dated 137-138 2 01/08/2013 13B Notice Of Hearing Reminder, dated 01/28/2013 139-144 6 1D Application for Disability Insurance Benefits, dated 145-149 5 02/23/2012 2D Detailed Earnings Query, dated 09/13/2012 150-152 3 3D Summary Earnings Query, dated 09/13/2012 153 1 4D New Hire, Quarter Wage, Unemployment Query (NDNH), 154 1 dated 09/13/2012 DATE: August 28, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-2 Filed 09/22/17 Page 1 of 6 Court Transcript Index Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 5D Certified Earnings Records, dated 09/13/2012 155 1 1E Work Activity Report EE, dated 02/23/2012 156-158 3 2E Work Activity Report EE, dated 02/23/2012 159-166 8 3E Disability Report-Field Office, dated 02/23/2012 167-169 3 4E Function Report-Adult, dated 05/02/2012 170-177 8 5E Work History Report, dated 05/14/2012 178-182 5 6E Disability Report-Field Office, dated 08/10/2012 183-184 2 7E Disability Report-Appeals, dated 08/10/2012 185-192 8 8E Report of Contact-3441 Not Received, dated 09/08/2012 193 1 9E Report of Contact-3441 recd 091312, dated 09/13/2012 194 1 10E Disability Report-Appeals, dated 10/05/2012 195-203 9 11E Report of Contact, dated 10/19/2012 204 1 12E Representative Correspondence, dated 02/15/2013 to 205 1 02/15/2013, from Rep 13E Attorney/Representative-Supplied Evidence, dated 206-212 7 08/26/2013, from Rep. Howard D.Olinsky of The Olinsky Law Group 1F Consultation, dated 05/17/2010, from Alaska Rehabilitation 213-218 6 Medicine Inc. 2F Emergency Department Records, dated 12/30/2009 to 219-237 19 03/28/2011, from Alaska Regional Hospital 3F Procedure reports, dated 01/20/2010 to 09/09/2011, from 238-255 18 Providence Alaska Medical Center 4F Consultation, dated 11/03/2011 to 12/08/2011, from 256-296 41 Standford University Medical 5F Physical Impairment Questionnaire, dated 01/30/2012, from 297-298 2 Larry Kropp MD 6F Office Treatment Records, dated 08/07/2009 to 03/20/2012, 299-338 40 from Larry Kropp MD 7F Office Treatment Records, dated 09/06/2012, from Dr Larry 339-341 3 Kropp 8F Letter from Provider, dated 09/06/2012, from Larry Kropp, 342-343 2 M.D. 9F Medical Evidence of Record, dated 03/07/2008 to 344-442 99 10/09/2012, from Family Health and Wellness 10F Medical Evidence of Record, dated 10/01/2012 to 443-463 21 10/05/2012, from Clevland Clinic No. of Court Transcript Index Page No. Pages ALJ Hearing Decision (ALJDEC), dated 04/28/2017 464-488 25 DATE: August 28, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-2 Filed 09/22/17 Page 2 of 6 Court Transcript Index Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 No. of Court Transcript Index Page No. Pages Transcript of Oral Hearing (TRANHR), dated 03/31/2017 489-523 35 Outgoing ODAR Correspondence (OUTODARC), dated 03/24/2017 524-526 3 Transcript of Oral Hearing (TRANHR), dated 12/06/2016 527-549 23 Exhibits Exhibit No. of No. Description Page No. Pages 3A ALJ Hearing Decision ~ Paul T. Hebda, ALJ, dated 550-564 15 06/04/2013 4A AC Denial ~ Megan Brock, Appeals Office, dated 12/02/2014 565-570 6 5A Summon and Complaint, dated 02/04/2015 571-590 20 6A Decision of U.S. District Court, dated 01/04/2016 591-605 15 7A AC Order ~ AAJ Felix-Lawson, dated 02/02/2016 606-609 4 14B Request for Review of Hearing Decision/Order, dated 610 1 08/01/2013 15B Transcript of Oral Hearing, dated 03/21/2015 611-639 29 16B Appointment of Representative ~ Bradford D. Myler, AAL, 640 1 dated 01/19/2016 17B Representative Fee Agreement ~ Bradford D. Myler, AAL, 641 1 dated 01/19/2016 18B Request for Hearing Acknowledgement Letter, dated 642-662 21 02/09/2016 19B Hearing Notice, dated 09/27/2016 663-689 27 20B Acknowledge Notice of Hearing, dated 09/28/2016 690 1 21B Hearing Notice, dated 11/16/2016 691-717 27 22B Acknowledge Notice of Hearing, dated 11/20/2016 718 1 23B Notice Of Hearing Reminder, dated 11/22/2016 719-724 6 24B Representative Fee Agreement-Pierce/Secondary, dated 725 1 03/28/2016 25B Appointment of Representative-Pierce/Secondary, dated 726 1 10/31/2016 26B Hearing Notice-Medical Expert Notification, dated 727-755 29 12/06/2016 27B Report of Contact-Medical Expert Notification, dated 756 1 12/02/2016 28B Hearing Notice, dated 03/03/2017 757-806 50 29B Report of Contact, dated 03/03/2017 807 1 30B Representative Fee Agreement, dated 03/28/2016 808 1 31B Appointment of Representative, dated 03/17/2017 809 1 14E Exhibit List to Rep PH2E, dated 05/11/2016 810-820 11 DATE: August 28, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-2 Filed 09/22/17 Page 3 of 6 Court Transcript Index Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 15E Claim Packet, dated 05/22/2010, from Standard Insurance 821-835 15 Company 16E Work Background, dated 06/09/2016 836-837 2 17E Recent Medical Treatment, dated 06/09/2016 838-839 2 18E Medications, dated 06/09/2016 840-841 2 19E Resume of Vocational Expert, dated 11/28/2016, from 842-843 2 William H. Weiss 20E Medications, dated 12/21/2016 844 1 21E Case Summary, dated 02/12/2017, from Myler Disability 845-846 2 22E Notice of Attempts to Obtain MER, dated 03/29/2017, from 847-848 2 Myler Disability 11F Lab Report, dated 12/07/2011 to 12/07/2011, from Standford 849-852 4 University Medical 12F Residual Functional Capacity Questionnaires, dated 853-856 4 01/30/2012 to 01/30/2012, from Dr Larry Kropp 13F Clinical Report/Radiology Report, dated 01/08/2014 to 857-882 26 02/04/2015, from Alaska Regional Hospital 14F Electromyography Report/Progress Notes, dated 07/11/2013 883-899 17 to 10/16/2015, from SSM Neuroscience Health St Claire Hospital 15F MRI Report, dated 05/08/2015 to 12/28/2015, from Imaging 900-904 5 Associates 16F Office Treatment Records, dated 09/15/2004, from 905-906 2 Chiropractic Neurology Associates 17F Office Treatment Records, dated 08/24/2004 to 11/08/2004, 907-910 4 from Alaska Spine Center 18F Office Treatment Records, dated 09/17/2008 to 09/20/2008, 911-915 5 from Final Evaluations 19F Office Treatment Records, dated 10/06/2008, from Alaska 916-917 2 Spine Institute 20F Office Treatment Records, dated 09/01/2009, from 918-921 4 Orthopedic Physicians Anchorage 21F Office Treatment Records, dated 02/16/2009 to 10/15/2009, 922-929 8 from Alaska Surgery Center 22F Office Treatment Records, dated 05/28/2008 to 12/02/2009, 930-1005 76 from Interventional Spine Specialists 23F Medical Source-No MER Available, dated 12/02/2010, from 1006 1 Alaska Kidney & Diabetes Associates 24F Outpatient Hospital Records, dated 12/30/2009 to 1007-1010 4 03/28/2011, from Alaska Regional Hospital 25F Office Treatment Records, dated 11/03/2011 to 12/08/2011, 1011-1025 15 from Stanford Hospital DATE: August 28, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-2 Filed 09/22/17 Page 4 of 6 Court Transcript Index Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 26F Imaging Reports, dated 06/03/2013, from Imaging Associates 1026-1027 2 of Providence 27F Office Treatment Records, dated 03/10/2008 to 03/03/2016, 1028-1150 123 from Interventional Spine Specialists 28F Outpatient Hospital Records, dated 08/05/2014 to 1151-1155 5 04/19/2016, from Alaska Regional Hospital 29F Office Treatment Records and Laboratory Reports, dated 1156-1209 54 03/10/2008 to 04/27/2016, from Family Health and Wellness 30F Progress Notes, Laboratory, and Imaging Reports, dated 1210-1243 34 11/08/2010 to 09/14/2016, from Family Health and Wellness 31F Office Treatment Records, dated 07/09/2013, from SSM 1244-1252 9 Neurosciences Institute 32F Office Treatment Records, dated 02/03/2016, from Accurate 1253-1255 3 Vision Clinic 33F Office Treatment Records, dated 11/04/2015 to 02/19/2016, 1256-1261 6 from Larry Kropp, M.D. 34F Office Treatment Records and Imaging Reports, dated 1262-1288 27 02/19/2013 to 02/19/2016, from Larry Kropp, M.D. 35F Office Treatment Records, dated 07/11/2013 to 07/14/2016, 1289-1308 20 from St. Claire Health Center 36F Progress Notes, dated 02/23/2016 to 11/17/2016, from 1309-1313 5 Family Health and Wellness 37F Office Treatment Records, dated 10/24/2011, from Larry 1314 1 Kropp, M.D. 38F Treating Source Statement, dated 11/05/2016, from 1315 1 Catherine Thompson, ANP 39F Office Treatment Records, dated 11/29/2016, from Pain 1316-1318 3 Solutions 40F Medical Expert Resume, dated 11/30/2016, from Melvin M. 1319-1320 2 Harter, M.D. 41F Mental RFC Assessment, dated 12/01/2016, from Catherine 1321-1324 4 Thompson, ANP 42F Office Treatment Records, dated 05/20/2010, from 1325-1328 4 Fibromyalgia Treatment Center 43F Treating Source Statement, dated 12/05/2016, from 1329-1331 3 Catherine Thompson, ANP 44F Consultative Examination Report, dated 01/19/2017, from 1332-1336 5 Susan Klimow, MD 45F Office Treatment Records, dated 05/20/2010 to 01/30/2017, 1337-1343 7 from Paul St. Amand, M.D. 46F Physical RFC Assessment, dated 02/13/2017, from Paul St. 1344-1346 3 Amand, M.D. DATE: August 28, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-2 Filed 09/22/17 Page 5 of 6 Court Transcript Index Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 47F Office Treatment Records, dated 03/10/2008 to 03/08/2017, 1347-1356 10 from Family Health & Wellness DATE: August 28, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-2 Filed 09/22/17 Page 6 of 6

Documents Related to Administrative Process Including Transcript of Oral Hearin

Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 12/02/2014 1-6 6 AC Correspondence (ACCORR), dated 08/08/2013 7-11 5 Request for Review of Hearing Decision/Order (HA 520), dated 12 1 08/01/2013 Representative Payee Determination Notice (REPPAYDETNOT), 13 1 dated 08/01/2013 Authorized Representative Cover Letter (AUTHRPCL), dated 14-15 2 08/01/2013 Appointment of Representative (1696), dated 08/01/2013 16 1 ALJ Hearing Decision (ALJDEC), dated 06/04/2013 17-31 15 Transcript of Oral Hearing (TRANHR), dated 02/11/2013 32-59 28 DATE: March 21, 2015 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-3 Filed 09/22/17 Page 1 of 60

Payment Documents and Decisions 03-21-2015

Payment Documents and Decisions Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 1A Disability Determination Transmittal, dated 07/22/2012 60 1 2A Disability Determination Explanation, dated 07/22/2012 61-70 10 DATE: March 21, 2015 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-4 Filed 09/22/17 Page 1 of 12

Jurisdictional Documents and Notices 03-21-2015

Jurisdictional Documents and Notices Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 1B Appointment of Representative, Brad Myler, dated 71 1 11/06/2011 2B Representative Fee Agreement, dated 11/06/2011 72 1 3B Explanation of Determination, dated 07/22/2012 73-82 10 4B Request for Hearing by ALJ, dated 08/13/2012 83-84 2 5B Request for Hearing Acknowledgement Letter, dated 85-102 18 09/14/2012 6B Exhibit List-CD to Representative or Claimant Form # HA-L56 103-113 11 (03-200), dated 09/14/2012 7B Hearing Notice, dated 10/24/2012 114-131 18 8B Acknowledge Notice of Hearing, dated 11/02/2012 132 1 9B Representative Fee Agreement, dated 10/12/2012 133 1 10B Appointment of Representative, dated 10/12/2012 134 1 11B Request Vocational Expert Attendance at Hearing, dated 135-136 2 01/08/2013 12B Request Vocational Expert Attendance at Hearing, dated 137-138 2 01/08/2013 13B Notice Of Hearing Reminder, dated 01/28/2013 139-144 6 DATE: March 21, 2015 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-5 Filed 09/22/17 Page 1 of 75

Non Disability Related Development 03-21-2015

Non Disability Related Development Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 1D Application for Disability Insurance Benefits, dated 145-149 5 02/23/2012 2D Detailed Earnings Query, dated 09/13/2012 150-152 3 3D Summary Earnings Query, dated 09/13/2012 153 1 4D New Hire, Quarter Wage, Unemployment Query (NDNH), 154 1 dated 09/13/2012 5D Certified Earnings Records, dated 09/13/2012 155 1 DATE: March 21, 2015 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-6 Filed 09/22/17 Page 1 of 12

Disability Related Development 03-21-2015

Disability Related Development Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 1E Work Activity Report EE, dated 02/23/2012 156-158 3 2E Work Activity Report EE, dated 02/23/2012 159-166 8 3E Disability Report-Field Office, dated 02/23/2012 167-169 3 4E Function Report-Adult, dated 05/02/2012 170-177 8 5E Work History Report, dated 05/14/2012 178-182 5 6E Disability Report-Field Office, dated 08/10/2012 183-184 2 7E Disability Report-Appeals, dated 08/10/2012 185-192 8 8E Report of Contact-3441 Not Received, dated 09/08/2012 193 1 9E Report of Contact-3441 recd 091312, dated 09/13/2012 194 1 10E Disability Report-Appeals, dated 10/05/2012 195-203 9 11E Report of Contact, dated 10/19/2012 204 1 12E Representative Correspondence, dated 02/15/2013 to 205 1 02/15/2013, from Rep 13E Attorney/Representative-Supplied Evidence, dated 206-212 7 08/26/2013, from Rep. Howard D.Olinsky of The Olinsky Law Group DATE: March 21, 2015 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-7 Filed 09/22/17 Page 1 of 58

Medical Records 03-21-2015 Part 1

Medical Records Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 1F Consultation, dated 05/17/2010, from Alaska Rehabilitation 213-218 6 Medicine Inc. 2F Emergency Department Records, dated 12/30/2009 to 219-237 19 03/28/2011, from Alaska Regional Hospital 3F Procedure reports, dated 01/20/2010 to 09/09/2011, from 238-255 18 Providence Alaska Medical Center 4F Consultation, dated 11/03/2011 to 12/08/2011, from 256-296 41 Standford University Medical 5F Physical Impairment Questionnaire, dated 01/30/2012, from 297-298 2 Larry Kropp MD 6F Office Treatment Records, dated 08/07/2009 to 03/20/2012, 299-338 40 from Larry Kropp MD 7F Office Treatment Records, dated 09/06/2012, from Dr Larry 339-341 3 Kropp 8F Letter from Provider, dated 09/06/2012, from Larry Kropp, 342-343 2 M.D. DATE: March 21, 2015 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-8 Filed 09/22/17 Page 1 of 132

Medical Records 03-21-2015 Part 2

Medical Records Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 9F Medical Evidence of Record, dated 03/07/2008 to 344-428 85 10/09/2012, from Family Health and Wellness DATE: March 21, 2015 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-9 Filed 09/22/17 Page 1 of 86

Medical Records 03-21-2015 Part 3

Medical Records Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 9F Medical Evidence of Record, dated 03/07/2008 to 429-442 14 10/09/2012, from Family Health and Wellness 10F Medical Evidence of Record, dated 10/01/2012 to 443-463 21 10/05/2012, from Clevland Clinic DATE: March 21, 2015 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-10 Filed 09/22/17 Page 1 of 36

Documents Related to Administrative Process Including Transcript of Oral Hearin

Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 No. of Court Transcript Index Page No. Pages ALJ Hearing Decision (ALJDEC), dated 04/28/2017 464-488 25 Transcript of Oral Hearing (TRANHR), dated 03/31/2017 489-523 35 Outgoing ODAR Correspondence (OUTODARC), dated 03/24/2017 524-526 3 Transcript of Oral Hearing (TRANHR), dated 12/06/2016 527-549 23 DATE: August 28, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-11 Filed 09/22/17 Page 1 of 87 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549

Payment Documents and Decisions 08-28-2017

Payment Documents and Decisions Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 3A ALJ Hearing Decision ~ Paul T. Hebda, ALJ, dated 550-564 15 06/04/2013 4A AC Denial ~ Megan Brock, Appeals Office, dated 12/02/2014 565-570 6 5A Summon and Complaint, dated 02/04/2015 571-590 20 6A Decision of U.S. District Court, dated 01/04/2016 591-605 15 7A AC Order ~ AAJ Felix-Lawson, dated 02/02/2016 606-609 4 DATE: August 28, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-12 Filed 09/22/17 Page 1 of 61 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609

Jurisdictional Documents and Notices 08-28-2017

Jurisdictional Documents and Notices Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 14B Request for Review of Hearing Decision/Order, dated 610 1 08/01/2013 15B Transcript of Oral Hearing, dated 03/21/2015 611-639 29 16B Appointment of Representative ~ Bradford D. Myler, AAL, 640 1 dated 01/19/2016 17B Representative Fee Agreement ~ Bradford D. Myler, AAL, 641 1 dated 01/19/2016 18B Request for Hearing Acknowledgement Letter, dated 642-662 21 02/09/2016 19B Hearing Notice, dated 09/27/2016 663-689 27 20B Acknowledge Notice of Hearing, dated 09/28/2016 690 1 21B Hearing Notice, dated 11/16/2016 691-717 27 22B Acknowledge Notice of Hearing, dated 11/20/2016 718 1 23B Notice Of Hearing Reminder, dated 11/22/2016 719-724 6 24B Representative Fee Agreement-Pierce/Secondary, dated 725 1 03/28/2016 25B Appointment of Representative-Pierce/Secondary, dated 726 1 10/31/2016 26B Hearing Notice-Medical Expert Notification, dated 727-755 29 12/06/2016 27B Report of Contact-Medical Expert Notification, dated 756 1 12/02/2016 28B Hearing Notice, dated 03/03/2017 757-806 50 29B Report of Contact, dated 03/03/2017 807 1 30B Representative Fee Agreement, dated 03/28/2016 808 1 31B Appointment of Representative, dated 03/17/2017 809 1 DATE: August 28, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-13 Filed 09/22/17 Page 1 of 201 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 755 756 757 758 759 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 788 789 790 791 792 793 794 795 796 797 798 799 800 801 802 803 804 805 806 807 808 809

Disability Related Development 08-28-2017

Disability Related Development Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 14E Exhibit List to Rep PH2E, dated 05/11/2016 810-820 11 15E Claim Packet, dated 05/22/2010, from Standard Insurance 821-835 15 Company 16E Work Background, dated 06/09/2016 836-837 2 17E Recent Medical Treatment, dated 06/09/2016 838-839 2 18E Medications, dated 06/09/2016 840-841 2 19E Resume of Vocational Expert, dated 11/28/2016, from 842-843 2 William H. Weiss 20E Medications, dated 12/21/2016 844 1 21E Case Summary, dated 02/12/2017, from Myler Disability 845-846 2 22E Notice of Attempts to Obtain MER, dated 03/29/2017, from 847-848 2 Myler Disability DATE: August 28, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-14 Filed 09/22/17 Page 1 of 40 810 811 812 813 814 815 816 817 818 819 820 821 822 823 824 825 826 827 828 829 830 831 832 833 834 835 836 837 838 839 840 841 842 843 844 845 846 847 848

Medical Records 08-28-2017 Part 1

Medical Records Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 11F Lab Report, dated 12/07/2011 to 12/07/2011, from Standford 849-852 4 University Medical 12F Residual Functional Capacity Questionnaires, dated 853-856 4 01/30/2012 to 01/30/2012, from Dr Larry Kropp 13F Clinical Report/Radiology Report, dated 01/08/2014 to 857-882 26 02/04/2015, from Alaska Regional Hospital 14F Electromyography Report/Progress Notes, dated 07/11/2013 883-899 17 to 10/16/2015, from SSM Neuroscience Health St Claire Hospital 15F MRI Report, dated 05/08/2015 to 12/28/2015, from Imaging 900-904 5 Associates 16F Office Treatment Records, dated 09/15/2004, from 905-906 2 Chiropractic Neurology Associates 17F Office Treatment Records, dated 08/24/2004 to 11/08/2004, 907-910 4 from Alaska Spine Center 18F Office Treatment Records, dated 09/17/2008 to 09/20/2008, 911-915 5 from Final Evaluations 19F Office Treatment Records, dated 10/06/2008, from Alaska 916-917 2 Spine Institute 20F Office Treatment Records, dated 09/01/2009, from 918-921 4 Orthopedic Physicians Anchorage 21F Office Treatment Records, dated 02/16/2009 to 10/15/2009, 922-929 8 from Alaska Surgery Center 22F Office Treatment Records, dated 05/28/2008 to 12/02/2009, 930-1005 76 from Interventional Spine Specialists 23F Medical Source-No MER Available, dated 12/02/2010, from 1006 1 Alaska Kidney & Diabetes Associates 24F Outpatient Hospital Records, dated 12/30/2009 to 1007-1010 4 03/28/2011, from Alaska Regional Hospital 25F Office Treatment Records, dated 11/03/2011 to 12/08/2011, 1011-1025 15 from Stanford Hospital 26F Imaging Reports, dated 06/03/2013, from Imaging Associates 1026-1027 2 of Providence DATE: August 28, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-15 Filed 09/22/17 Page 1 of 180 849 850 851 852 853 854 855 856 857 858 859 860 861 862 863 864 865 866 867 868 869 870 871 872 873 874 875 876 877 878 879 880 881 882 883 884 885 886 887 888 889 890 891 892 893 894 895 896 897 898 899 900 901 902 903 904 905 906 907 908 909 910 911 912 913 914 915 916 917 918 919 920 921 922 923 924 925 926 927 928 929 930 931 932 933 934 935 936 937 938 939 940 941 942 943 944 945 946 947 948 949 950 951 952 953 954 955 956 957 958 959 960 961 962 963 964 965 966 967 968 969 970 971 972 973 974 975 976 977 978 979 980 981 982 983 984 985 986 987 988 989 990 991 992 993 994 995 996 997 998 999 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027

Medical Records 08-28-2017 Part 2

Medical Records Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 27F Office Treatment Records, dated 03/10/2008 to 03/03/2016, 1028-1150 123 from Interventional Spine Specialists 28F Outpatient Hospital Records, dated 08/05/2014 to 1151-1155 5 04/19/2016, from Alaska Regional Hospital DATE: August 28, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-16 Filed 09/22/17 Page 1 of 129 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 1041 1042 1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1053 1054 1055 1056 1057 1058 1059 1060 1061 1062 1063 1064 1065 1066 1067 1068 1069 1070 1071 1072 1073 1074 1075 1076 1077 1078 1079 1080 1081 1082 1083 1084 1085 1086 1087 1088 1089 1090 1091 1092 1093 1094 1095 1096 1097 1098 1099 1100 1101 1102 1103 1104 1105 1106 1107 1108 1109 1110 1111 1112 1113 1114 1115 1116 1117 1118 1119 1120 1121 1122 1123 1124 1125 1126 1127 1128 1129 1130 1131 1132 1133 1134 1135 1136 1137 1138 1139 1140 1141 1142 1143 1144 1145 1146 1147 1148 1149 1150 1151 1152 1153 1154 1155

Medical Records 08-28-2017 Part 3

Medical Records Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 29F Office Treatment Records and Laboratory Reports, dated 1156-1209 54 03/10/2008 to 04/27/2016, from Family Health and Wellness 30F Progress Notes, Laboratory, and Imaging Reports, dated 1210-1243 34 11/08/2010 to 09/14/2016, from Family Health and Wellness 31F Office Treatment Records, dated 07/09/2013, from SSM 1244-1252 9 Neurosciences Institute 32F Office Treatment Records, dated 02/03/2016, from Accurate 1253-1255 3 Vision Clinic 33F Office Treatment Records, dated 11/04/2015 to 02/19/2016, 1256-1261 6 from Larry Kropp, M.D. 34F Office Treatment Records and Imaging Reports, dated 1262-1288 27 02/19/2013 to 02/19/2016, from Larry Kropp, M.D. DATE: August 28, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-17 Filed 09/22/17 Page 1 of 134 1156 1157 1158 1159 1160 1161 1162 1163 1164 1165 1166 1167 1168 1169 1170 1171 1172 1173 1174 1175 1176 1177 1178 1179 1180 1181 1182 1183 1184 1185 1186 1187 1188 1189 1190 1191 1192 1193 1194 1195 1196 1197 1198 1199 1200 1201 1202 1203 1204 1205 1206 1207 1208 1209 1210 1211 1212 1213 1214 1215 1216 1217 1218 1219 1220 1221 1222 1223 1224 1225 1226 1227 1228 1229 1230 1231 1232 1233 1234 1235 1236 1237 1238 1239 1240 1241 1242 1243 1244 1245 1246 1247 1248 1249 1250 1251 1252 1253 1254 1255 1256 1257 1258 1259 1260 1261 1262 1263 1264 1265 1266 1267 1268 1269 1270 1271 1272 1273 1274 1275 1276 1277 1278 1279 1280 1281 1282 1283 1284 1285 1286 1287 1288

Medical Records 08-28-2017 Part 4

Medical Records Civil Action Number: 3:17-CV-00147 Claimant: Deidre Leanora Duron Account Number: 544-06-6033 Exhibits Exhibit No. of No. Description Page No. Pages 35F Office Treatment Records, dated 07/11/2013 to 07/14/2016, 1289-1308 20 from St. Claire Health Center 36F Progress Notes, dated 02/23/2016 to 11/17/2016, from 1309-1313 5 Family Health and Wellness 37F Office Treatment Records, dated 10/24/2011, from Larry 1314 1 Kropp, M.D. 38F Treating Source Statement, dated 11/05/2016, from 1315 1 Catherine Thompson, ANP 39F Office Treatment Records, dated 11/29/2016, from Pain 1316-1318 3 Solutions 40F Medical Expert Resume, dated 11/30/2016, from Melvin M. 1319-1320 2 Harter, M.D. 41F Mental RFC Assessment, dated 12/01/2016, from Catherine 1321-1324 4 Thompson, ANP 42F Office Treatment Records, dated 05/20/2010, from 1325-1328 4 Fibromyalgia Treatment Center 43F Treating Source Statement, dated 12/05/2016, from 1329-1331 3 Catherine Thompson, ANP 44F Consultative Examination Report, dated 01/19/2017, from 1332-1336 5 Susan Klimow, MD 45F Office Treatment Records, dated 05/20/2010 to 01/30/2017, 1337-1343 7 from Paul St. Amand, M.D. 46F Physical RFC Assessment, dated 02/13/2017, from Paul St. 1344-1346 3 Amand, M.D. 47F Office Treatment Records, dated 03/10/2008 to 03/08/2017, 1347-1356 10 from Family Health & Wellness DATE: August 28, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00147-HRH Document 11-18 Filed 09/22/17 Page 1 of 69 1289 1290 1291 1292 1293 1294 1295 1296 1297 1298 1299 1300 1301 1302 1303 1304 1305 1306 1307 1308 1309 1310 1311 1312 1313 1314 1315 1316 1317 1318 1319 1320 1321 1322 1323 1324 1325 1326 1327 1328 1329 1330 1331 1332 1333 1334 1335 1336 1337 1338 1339 1340 1341 1342 1343 1344 1345 1346 1347 1348 1349 1350 1351 1352 1353 1354 1355 1356

MOTION to Remand to Social Security by Deidre Leanora Duron.

1 Edward A. Wicklund, Esq. Attorney for Plaintiff 2 Pro hac vice 3 Olinsky Law Group 300 South State Street, Suite 420 4 Syracuse, New York 13202 5 Telephone: (315) 701-5780 Fax: (315) 701-5781 6 twicklund@windisability.com 7 8 UNITED STATES DISTRICT COURT DISTRICT OF ALASKA 9 DEIDRE LEANORA DURON, 10 11 Plaintiff, CIVIL ACTION NO. 3:17-cv-00147 (HRH) 12-v-13 NANCY A. BERRYHILL, 14 ACTING COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16-----------------------------------------------------------17 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF A SOCIAL SECURITY APPEAL 18 19 ISSUES PRESENTED FOR REVIEW 20 1. The ALJ’s residual functional capacity determination is unsupported by substantial evidence because the ALJ once again erred in weighing and 21 evaluating the medical opinion evidence of record. 22 PROCEDURAL STATUS 23 On December 1, 2011, Deidre Leanora Duron ("Plaintiff") filed a Title II application for 24 25 a period of disability and disability insurance benefits alleging disability beginning April 1, 2010 26 due to thoracic spine problems, autonomic dysreflexia, and depression. T 61, 145. The claim 27 was denied on August 7, 2012. T 73. A hearing was held, after which Administrative Law 28 1 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 1 of 21 1 Judge ("ALJ") Paul T. Hebda issued an unfavorable decision. T 27. On December 2, 2014, the 2 Appeals Council denied review and Plaintiff subsequently appealed to the United States District 3 Court for the District Court of Alaska. T 1-6, 571. The case was remanded from District Court 4 5 and the Appeals Council instructed the commissioner to reconsider the opinion of Plaintiff’s 6 treating physician, Dr. Kropp, and reconsider Plaintiff’s complaints of pain. T 591-601, 608. 7 Two hearings were held, after which the ALJ again issued an unfavorable decision. T 480. 8 The ALJ determined that Plaintiff meets the insured status requirements of the Social 9 Security Act through December 31, 2015. T 469. He found that Plaintiff did not engage in 10 11 substantial gainful activity during the relevant period. T 470. The ALJ found that Plaintiff had 12 the following severe impairments: chronic pain syndrome with degenerative disc disease and 13 mild autonomic dysfunction; obesity; depressive disorder secondary to chronic pain issues; and 14 somatoform disorder. T 470. The ALJ determined that Plaintiff did not have an impairment, or 15 combination thereof, that meets one of the listings. T 470. 16 17 The ALJ found that Plaintiff had the residual functional capacity ("RFC") to perform 18 light work with the following limitations: 19 In addition, the claimant was able to frequently push/pull and she was able to 20 frequently reach and frequently overhead reach with the bilateral upper extremities. The claimant could have frequent foot control operation with the bilateral lower 21 extremities. She could do no climbing of ladders, ropes, or scaffolds and she had 22 to avoid exposure to unprotected heights. She could have frequent contact with moving machinery. She was limited to work which would not require expectations 23 of performance regarding fulfilling quotas. Finally, the claimant needed a sit/stand option that allowed her to alternate between a sitting or standing position 24 throughout the day. 25 T 471. Lastly, the ALJ determined that Plaintiff was capable of performing past relevant work as 26 a general clerk. T 479. 27 28 2 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 2 of 21 1 Appeals Council did not assume jurisdiction within 60 days of the second ALJ decision, 2 making the ALJ’s decision the final decision of the Commissioner. 20 C.F.R. § 416.1484(c)-(d). 3 This action followed. This Court has jurisdiction of this action. 42 U.S.C. § 405(g). 4 5 STATEMENT OF FACTS 6 Plaintiff was 32 years old on the alleged onset date of April 1, 2010. T 61. She reported 7 past work as an administrative assistance, grocery checker, telemarketer, and janitor. T 178. 8 A. Medical Evidence 9 Plaintiff has a longstanding history of chronic back pain, thoracic radiculopathy, and 10 11 depression. T 416-436. In June of 2009, Larry Kropp, M.D. implanted a spinal stimulator to 12 treat thoracic radiculopathy, and in October of 2009, Plaintiff was recovering as planned and 13 improved with the treatment. T 310, 304. On November 4, 2009, Plaintiff reported the radicular 14 pain was gone. T 306. Plaintiff followed up with Dr. Kropp four times between November 16 15 and December 2, 2009 for adjustments and reprogramming of the stimulator due to symptoms of 16 17 numbness and "wedge" pain, as well as electrical sensations radiating around her rib cage. T 18 308, 311-314. Dr. Kropp noted the stimulator leads had migrated, and recommended a lead 19 revision. T 313. She also reported dizziness, sleepiness, and weakness. T 311-314. 20 On March 15, 2010, Plaintiff treated with Dr. Kropp for stimulator reprogramming, as the 21 22 stimulator was not properly located in the area of her pain. T 317. Dr. Kropp repositioned the 23 stimulator and noted ongoing medications of Vicodin, Tramadol, Adipex, and Spiranolactone. T 24 317. 25 On March 29, 2010, Plaintiff followed up with Catherine Liddelow-Thompson, ANP, one 26 of her primary care providers. T 410. Nurse Thompson noted Plaintiff suffers from thoracic 27 28 radiculopathy, chronic pain, and depression, and prescribed Cymbalta and Percocet. T 410. 3 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 3 of 21 1 On May 5, 2010, Plaintiff treated with Dr. Kropp, who noted she was still recovering 2 from a thoracic lead placement, and she felt her body was rejecting the device. T 319. She 3 reported gaining 50 pounds in the past 4 months, feeling nauseated and sick, and complained of 4 5 dizziness, sleepiness, and weakness. T 319. Plaintiff followed up with Dr. Kropp on May 11, 6 2010, and reported numbness on the left side into the left leg. T 321. On examination, Dr. 7 Kropp noted Plaintiff looked pale and weak. T 321. He ordered an EMG due to the numbness 8 and a CT scan of the cervical spine, and ordered an endocrinology consult for the weight gain. T 9 322. He also noted that Plaintiff wanted the stimulator device removed, and he agreed with this 10 11 course of action as the stimulator was "not providing any relief for her." T 322. 12 On May 17, 2010, upon referral from Dr. Kropp, Plaintiff presented for an 13 electrodiagnostic consultation with Alaska Rehabilitation Medicine due to left leg numbness. T 14 214. Plaintiff reported the stimulator was no longer providing pain relief, and she described 15 symptoms of numbness in the left leg. T 214. The electrodiagnostic study was normal, and Dr. 16 17 Erik Kussro, D.O. was uncertain of the nature of the leg numbness. T 215-216. 18 On May 27, 2010, Plaintiff followed up with Dr. Kropp, who noted that Plaintiff’s 19 original symptoms of thoracic spine pain remained unchanged. T 323. She also reported that the 20 endocrinologist she consulted determined she may have fibromyalgia. T 323. Plaintiff’s 21 22 continuing symptoms included spine pain, weight gain, sweating, pressure in the bladder, 23 weakness, and excessive sleeping. T 323. Plaintiff’s treatment plan included a referral for 24 evaluation of sweating and weight gain and well as removal of the stimulator. T 324. Her 25 medications included Vicodin, tramadol, Adipex, and Spiranolactone. T 323. 26 On June 14, 2010, Plaintiff presented to Providence Alaska Medical Center for weakness, 27 28 diaphoresis, and continued pain. T 250. On examination, she was in moderate discomfort and 4 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 4 of 21 1 there was diffuse tenderness in the back. T 250. Plaintiff was treated with Toradol 2 intravenously. T 251. 3 On June 24, 2010, Plaintiff presented to Alaska Regional Hospital for a consultation 4 5 regarding the stimulator device, which she reported no longer relieved pain, and seemed 6 connected to a 50-pound weight gain and symptoms of constant sweating, joint pain, 7 hypersensitivity to sensation, and sharp pain in the mid-back at the incision site. T 224. She also 8 reported increased fatigue, hives, and difficulty swallowing. T 224. On examination, there was 9 some limitation in neck range of motion and tenderness to palpation in the thoracic region with 10 11 radiation to the wrist. T 225. She was prepared for surgery to remove the device, and the 12 procedure was performed that same day. T 225-228. 13 On August 23, 2010, Plaintiff presented for a consultation at Alaska Neurology Center 14 for symptoms of sweating, fatigue, body pain, burning, some numbness, weakness in the right 15 arm, and rapid heart rate. T 381. Dr. Troxell ordered an updated MRI of the thoracic spine to 16 17 evaluate for autonomic dysreflexia. T 384. Dr. Troxell noted chronic pain, persistent sweating, 18 and significant anxiety and depression related to Plaintiff’s loss of function. T 384. She 19 recommended psychiatric medication and counseling, and referred Plaintiff to a psychiatrist. T 20 384. Imaging of the thyroid on September 17, 2010 revealed thyroiditis. T 254. 21 22 Between October 10, 2010 and March 8, 2017, Plaintiff treated with Nurse Thompson for 23 thoracic radiculopathy, chronic pain, chronic fatigue syndrome, autonomic dysreflexia, and 24 depression. T 346-350, 1156-1225, 1309-12, 1350-55. She noted her pain increased with the 25 cold weather, and continued to receive prescriptions for Flexeril, oxycodone, Cymbalta, and 26 narcotic pain medication including Percocet and Oxycodone to treat persistent symptoms. T 27 28 346-352, 393-401, 1156-1225, 1309-12, 1350-55. 5 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 5 of 21 1 On November 5, 2010, Plaintiff presented to Alaska Regional Hospital for chronic pain 2 and was assessed with thoracic strain. T 229. She reported the pain has been ongoing for 5 3 years, but has been worsening over the past month. T 232. She was prescribed Tizanidine as 4 5 needed for muscle spasms. T 229. 6 On September 2, 2011, Plaintiff treated with Dr. Kropp and reported dizziness, fatigue, 7 and depression. T 325. On examination, there were hyper reflexes consistent with upper motor 8 neuron findings. T 325. An MRI of the thoracic spine revealed a small lesion in the left 9 paraspinal space and a small cyst. T 255. Plaintiff followed up with Nurse Thompson on 10 11 September 20, 2011 for autonomic dysreflexia, thoracic radiculopathy, chronic pain, and 12 depression, and received medication refills. T 366. 13 On November 3, 2011, Plaintiff presented to Stanford Hospital for a consultation with Dr. 14 Jaradeh Safwan and reported profuse sweating in the upper body, weakness and fatigue, 15 hypertension, weight gain, and erratic sleep due to pain. T 256. On examination, her affect was 16 17 depressed, there was mild erythema in the hands and feet, she was sweating, and there was 18 tenderness and spasm in the thoracic spine. T 258. Dr. Safwan explained that Plaintiff may have 19 issues with residual myelopathy or thoracic radiculopathy and requested imaging of the cervical 20 spine and an EMG study. T 258. 21 22 On November 10, 2011, Plaintiff treated with Dr. Kropp. T 329. On examination, there 23 were hyper reflexes consistent with upper motor neuron findings, and sweating in the upper 24 torso. T 329. Plaintiff followed up with Nurse Thompson on November 15, 2011 and reported 25 increased anxiety. T 362. Nurse Thompson diagnosed spondylosis with myelopathy, radicular 26 pain in the thoracic region, and numbness and tingling in the right hand. T 362. 27 28 On December 8, 2011, Plaintiff treated with Dr. Safwan at Stanford Hospital and reported 6 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 6 of 21 1 continued problems with tachycardia, thoracic pain, and increased sweating. T 285. Dr. Safwan 2 recommended a pain evaluation. T 285. On examination, Plaintiff appeared frustrated and 3 intermittently tearful, her heart rate was tachycardic, and there was erythema in the hands and 4 5 feet. T 285. Dr. Safwan noted some descent in the tonsils and noted the likelihood of Chiari 6 type I malformation. T 285-286. He recommended increasing her Lexapro dose and prescribed 7 acetazolarride. T 286. 8 On January 20, 2012, Dr. Kropp completed a physical impairment questionnaire 9 regarding Plaintiff’s condition, noting he has been treating her since 2008, approximately 8 times 10 11 per year. T 297. He opined that her symptoms and pain are constantly severe enough to 12 interfere with the attention and concentration required to perform simple, work-related tasks, and 13 that she would need to recline or lie down in excess of typical breaks during a workday. T 297. 14 He opined she can walk only 1 city block without rest or significant pain, and can stand/walk for 15 5 minutes at a time and for a total of 1 hour in an eight-hour workday. T 297. He opined she can 16 17 sit for 5 minutes at a time and for a total of 1 hour in an eight-hour workday. T 297. He opined 18 she can occasionally lift less than 10 pounds, and can never lift 10 pounds or more. T 298. 19 Finally, he opined that Plaintiff is not physically capable of working an 8-hour day, 5 days a 20 week on a sustained basis. T 298. 21 22 On January 27, 2012, Plaintiff treated with Dr. Kropp for autonomic dysreflexia, and he 23 noted she has been referred to the Mayo Clinic for treatment. T 334. He also noted she was 24 treating for anxiety attacks, not opined these may be an adrenaline phenomenon. T 334. On 25 examination, he noted she was sweating and had hyper reflexes. T 334. He concurred with the 26 course of treatment regarding the referral to the Mayo Clinic and the treatment of anxiety with 27 28 clonidine. T 335. He noted Plaintiff’s desire to return to school, but opined they would have to 7 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 7 of 21 1 "play that by ear," because her treatment plan was not yet solid. T 335. Plaintiff continued 2 treatment and medications with Nurse Thompson in February and March of 2012. T 358-360. 3 On March 7, 2012, Dr. Kropp administered a selective thoracic nerve root block to treat 4 5 thoracic radiculopathy. T 336. Plaintiff followed up on March 20, 2012 and reported minimal 6 improvement with the injection. T 337-338. Dr. Kropp noted similar injections had worked for 7 Plaintiff in the past, but due to the evolution of her symptoms, he was not surprised that there 8 was no significant improvement this time. T 337. He noted Plaintiff recently visited Hawaii but 9 used a wheelchair, and also suffered a fall while there, sustaining a contusion to the right 10 11 shoulder and head. T 337. Plaintiff followed up with Dr. Thompson on 5 occasions between 12 April 14, 2012 and August 10, 2012 for chronic pain and depression, and received refills of her 13 prescription medications. T 353-357, 391. 14 On September 6, 2012, Plaintiff treated with Dr. Kropp, and he noted her autonomic 15 dysreflexia should meet the criteria for disability, as it is a "rapidly progressive and debilitating 16 17 neurological disease," and he cannot send her into the workplace at this time. T 340-42. 18 On October 1, 2012, Plaintiff presented to the Cleveland Clinic with complaints of pain 19 in the thoracic spine, and described it as a restrictive pain which makes it difficult for her to 20 breathe and stand for long periods of time. T 456. She stated the pain radiates to her right arm 21 22 and fingertips, and she suffers weakness in the upper right limb. T 456. She stated the pain is 23 exacerbated by all activities, and is reduced with heating pads and Neurontin. T 456. Her 24 symptoms included fever, child, dizziness, blurred vision, shortness of breath, chest pain, high 25 blood pressure, palpitations, a skin rash, worsening urinary incontinence, back pain, severe 26 headaches, anxiety, and depression. T 456-457. On examination, Plaintiff’s affect was agitated 27 28 and notable for somatic preoccupation and anxiety. T 458. Her muscle stretch reflexes were 8 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 8 of 21 1 increased in the biceps, triceps, writs, knees, and ankles. T 458. There was tenderness to 2 palpation over the thoracic spine. T 458. The impression was progressively worsening pain with 3 frequent tachycardia and headaches, with hyperreflexia in the upper and lower extremities and 4 5 loss of bladder control. T 458. Updated imaging was obtained on October 5, 2012 due to 6 abnormal reflexes. T 447. 7 On February 19, 2013, Plaintiff treated with Dr. Kropp and reported radicular pain 8 around the ribs and difficulty sitting and lying down. T 1083. Dr. Kropp recommended she see 9 a neurologist. T 1083. 10 11 On May 22, 2013, Plaintiff saw Dr. Kropp and informed him that she has an appointment 12 to see a neurologist. T 1086. Plaintiff reported an episode where the pain radiated on both sides 13 and went around front to the sternum. T 1086. Digits 4 and 5 are going numb on her right hand 14 and her right leg is going numb. T 1086. 15 On July 9, 2013, Plaintiff reported to SSM Neurosciences for a consultation for 16 17 autonomic symptoms. T 891. She had profuse sweating, high blood pressure, rapid weight gain, 18 and chronic back pain. T 891. She reported tingling in her legs, numbness in her fingers, painful 19 scalp, radicular back pain, and spasms. T 891. Dr. Laurence Kinsalla impressed regional 20 hyperhidrosis, tachycardia, and thoracic pain syndrome and prescribed amitriptyline. T 895. 21 22 On June 5, 2014, an x-ray of the right knee revealed a postulated tear or tears of the 23 medial meniscus and small to moderate knee joint effusion. T 878. 24 On August 4, 2014, Plaintiff reported to Alaska Regional Hospital for left leg, ankle, and 25 foot swelling. T 867. She also reported fatigue and extreme weakness. T 867. Examination 26 revealed mild edema of the left lower extremity in the foot, ankle, and lower leg. T 868. 27 28 On May 8, 2015, an MRI of the thoracic spine revealed an abnormality in the central cord 9 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 9 of 21 1 and a paraspinal cyst consistent with a lymphangioma. T 901. 2 On November 4, 2015, Plaintiff reported to Dr. Kropp that she had fallen three times in 3 the last year and she hurt her right shoulder, hip, and low back. T 1096. Dr. Kropp ordered a 4 5 lumbar spine MRI, which revealed mild lumbar facet degenerative joint disease. T 903. 6 On November 29, 2016, Plaintiff had a consultation with Dr. John P. Shannon. T 1316-7 18. Plaintiff reported a slip and fall with fractures of T5-7 as evidenced by a bone scan from 8 2004. T 1316. Dr. Shannon noted Plaintiff treated with him from 2004-2008 during which time 9 she was referred to other providers. T 1316. Plaintiff reported chronic fatigue, myalgia, profuse 10 11 sweating, sleep pattern disturbances, weight gain, anxiety, depression, and postural pain 12 worsened with sitting. T 1316. Plaintiff has had facet blocks, nerve blocks, two spinal cord 13 simulators, multiple medications, a laminectomy at T6-7, physical therapy, and spinal 14 manipulative therapy, none of which has provided long-term relief. T 1316. Plaintiff was on 15 oxycodone 8 times per day, Percocet 5 times per day, phentermine, gabapentin, Lexapro, 16 17 spironolactone, flexeril, and clonidine. T 1317. She has been diagnosed with an autonomic 18 dysfunction in the thoracic spine and thoracic radiculopathy, which are supported by treatment 19 notes. T 1317. After reviewing the medical evidence, Dr. Shannon noted "I find it hard to 20 believe that an individual would go through all of these procedures over more than a decade’s 21 22 period of time, multiple dangerous medications which have their own negative health effects, 23 and enormous expense traveling around the country trying to find a solution for this problem, 24 simply in an effort not to be gainfully employed." T 1317. Dr. Shannon opined that Plaintiff 25 will never be able to sustain full time gainful employment due to continuous pain. T 1317. 26 On December 5, 2016, Nurse Thompson wrote a letter indicating that Plaintiff has 27 28 chronic pain secondary to a fall in 2004 resulting in a T3-T7 fracture. T 1329. Plaintiff was 10 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 10 of 21 1 working at a legal office, but Nurse Thompson noted a decline in her health, self-esteem, and 2 mental well-being. T 1329. Plaintiff’s prognosis is poor and has been treated for nearly 12 years 3 and endured many medications and expenses trying to find answers. T 1329. Nurse Thompson 4 5 opined that Plaintiff will never be able to work due to pain and being on an enormous amount of 6 medication. T 1329. She noted that Plaintiff’s pain is aggravated by activity and her diagnosis is 7 permanent and progressive. T 1329-30. 8 On December 1, 2016, Nurse Thompson completed a mental capacity assessment. T 9 1321-23. She opined that Plaintiff has moderate limitations in the ability to carry out short and 10 11 simple instructions and respond to changes in the work setting. T 1321-23. She has marked 12 limitations in the ability to remember locations and work-like procedures. T 1321. Plaintiff has 13 extreme limitations in the ability to understand simple instructions, understand and carry out 14 detailed instructions, maintain attention, maintain regular attendance, work with others, make 15 simple decisions, complete a normal workday and week, and perform at a consistent pace. T 16 17 1321-22. Nurse Thompson noted that she has been treated Plaintiff since April 2008 and has had 18 these limitations since 2010. T 1324. 19 On January 19, 2017, Plaintiff underwent a consultative examination with Susan Klimow, 20 M.D. T 1332-34. Plaintiff reported chronic thoracic discomfort radiating to the anterior chest 21 22 wall. T 1332. She has a diagnosis of autonomic dysreflexia with symptoms of hyperhidrosis, 23 tachycardia, weight gain, and intermittent numbness and tingling in the lower and upper 24 extremities. T 1332. Plaintiff reported a diagnosis of fibromyalgia with constant fatigue. T 25 1332. Lifting, walking, standing, straining, sitting, climbing stairs, and bending all aggravate her 26 discomfort and needs to change positions. T 1332. Examination revealed tenderness to 27 28 palpation in the paraspinal muscles in the T5-7 area. T 1334. Dr. Klimow opined that Plaintiff’s 11 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 11 of 21 1 chronic discomfort and radiculopathy may affect her ability to stand, move about, lift or carry 2 items. T 1334. 3 On January 30, 2017, Plaintiff saw Dr. Amand. T 1339. He noted that he diagnosed her 4 5 with fibromyalgia in 2010 and prescribed guaifenesin. T 1339. Plaintiff reported pain her neck, 6 traps, back, hips, thighs, hamstrings, knees, calves, ankles, plantar feet, shoulders, arms, elbows, 7 wrists, and fingers. T 1339. She has symptoms that include fatigue, irritability, nervousness, 8 depression, insomnia, impaired memory and concentration, anxiety, excessive sweating, 9 palpitations, headaches, and dizziness. T 1339. Dr. Amand diagnosed fibromyalgia, back pain, 10 11 and obesity. T 1339. 12 On February 13, 2017, Dr. Amand completed a physical assessment. T 1344-45. He 13 opined that Plaintiff’s symptoms constantly interfere with attention. T 1344. She would need to 14 lie down in excess of the typical breaks. T 1344. 15 B. Hearing Testimony 16 17 At the February 11, 2013 hearing, Plaintiff testified to the following: Her weight in 18 December of 2009 was approximately 163 pounds, and she now weights over 250 pounds due to 19 her medications and inability to exercise due to her conditions. T 37-38. She is unable to sit for 20 more than 10 to 15 minutes at a time without pain, and the pain makes it difficult to breathe. T 21 22 41-42. She has traveled extensively for medical reasons to see different specialists, and requires 23 assistance and wheelchairs when traveling. T 43. She has had to sedate herself with muscle 24 relaxers and pain medications to tolerate the flights. T 43. She cannot stand for more than five 25 minutes at one time before feeling pain and strain in her back. T 43. She cannot walk very far 26 due to a very rapid heart rate and sweating. T 44. She has difficulty walking around her home. 27 28 T 45. She is unable to lift anything more than 5 pounds. T 45. She uses a heating pad to manage 12 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 12 of 21 1 pain, and takes pain medication. T 46-47. The most difficult part of her day is feeding herself, 2 and she struggles to just to get milk and cereal into a bowl. T 49. She suffers depression and has 3 been taking Lexapro for about 2 years. T 47-48. Her primary physician is Dr. Kropp, and he is 4 5 the one who has been referring her to specialists. T 48-49. 6 At the hearing on December 6, 2016, Medical Expert ("ME") Melvin M. Harder, M.D. 7 testified to the following: Plaintiff’s chief impairment is pain related to a lumbar fracture placed 8 in the category of dysreflexia. T 536. She had migraines, sweating, numbness and tingling in 9 her left thigh, and thoracic pain. T 536. She had blurred vision, shortness of breath, palpitations, 10 11 and hypertension. T 537. Dr. Harder opined that Plaintiff would have periods of time where she 12 is unable to work due to pain. T 545. 13 At the hearing on March 31, 2017, ME Michael Lace, licensed psychologist, testified to 14 the following: Plaintiff has depressive disorder secondary to chronic pain. T 495. She has 15 moderate limitations in concentration, persistence, or pace and adapting and managing oneself. 16 17 T 496. If she were to work, she would be limited to slow pace setting and routine and repetitive 18 tasks. T 496. 19 ME Dr. Jack Lebeau, M.D. testified to the following: Plaintiff can lift 11-20 pounds 20 occasionally and 10 pounds frequently. T 507. Plaintiff might need a special chair for sitting, 21 22 but could sit one hour at a time for 6 hours total. T 507. She can stand half an hour at a time for 23 a total of 3 hours. T 507. She can walk half an hour at a time for 2 hours total. T 507. She can 24 frequently reach, push, and pull. T 507. Plaintiff can frequently use her feet to push. T 508. 25 She should avoid ladders/scaffolds, but can occasionally climb ramps/stairs, stoop, kneel, crouch, 26 and crawl. T 508. She should avoid unprotected heights, but can frequently be around moving 27 28 mechanical parts. T 508. She should avoid noise louder than traffic. T 508. 13 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 13 of 21 1 2 CONTENTIONS 3 Pursuant to 42 U.S.C. § 405(g) this Court may review the record to determine whether 4 5 the Commissioner applied the proper legal standards and whether substantial evidence supports 6 the Commissioner’s final decision to deny the Plaintiff benefits. Substantial evidence means 7 more than a mere scintilla of evidence. It means such relevant evidence as a reasonable mind 8 might accept as adequate to support the ALJ’s conclusion. Richardson v. Perales, 402 U.S. 389, 9 401 (1971); Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012); Sandgathe v. Chater, 108 F.3d 10 11 978, 980 (9th Cir. 1997)). 12 To be considered disabled under the Social Security Act, a Plaintiff must demonstrate an 13 "inability to engage in any substantial gainful activity by reason of any medically determinable 14 physical or mental impairment which can be expected to result in death or which has lasted or 15 can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d) 16 17 (1) (A). 18 1. The ALJ’s residual functional capacity determination is unsupported by 19 substantial evidence because the ALJ once again erred in weighing and evaluating the medical opinion evidence of record. 20 Residual functional capacity is the most someone can do despite their mental and 21 22 physical limitations. Berry v. Astrue, 622 F.3d 1228, 1233 (9th Cir. 2010); 20 C.F.R. § 23 404.1545(a) (1). In determining a claimant’s RFC, the ALJ must base his findings on "all of the 24 relevant medical and other evidence," including a claimant’s testimony regarding the limitations 25 imposed by his impairments. 20 C.F.R. § 404.1545(a) (3). 26 SSA Regulations articulate rules for weighing opinion evidence from treating sources 27 28 that "generally" accord "more weight" to treating sources due to their "detailed, longitudinal 14 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 14 of 21 1 picture" of a claimant’s impairment(s) and "unique perspective" of the medical evidence. 20 2 C.F.R. § 404.1527(c)(2). "Where the treating doctor’s opinion is not contradicted by another 3 doctor, it may be rejected only for clear and convincing reasons supported by substantial 4 5 evidence in the record. Even if the treating doctor’s opinion is contradicted by another doctor, 6 the administrative law judge (ALJ) may not reject this opinion without providing specific and 7 legitimate reasons supported by substantial evidence in the record." Orn v. Astrue, 495 F.3d 8 625, 632 (9th Cir. 2007) (emphasis added). See also Lester v. Chater, 81 F.3d 821, 830—31 (9th 9 Cir. 1995) ("[L]ike the opinion of a treating doctor, the opinion of an examining doctor, even if 10 11 contradicted by another doctor, can only be rejected for specific and legitimate reasons that are 12 supported by substantial evidence in the record.") (emphasis added) citing Pitzer v. Sullivan, 908 13 F.2d 502, 506 (9th Cir. 1990) and Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). 14 Indeed, the Ninth Circuit has held that "an ALJ errs when he rejects a medical opinion or assigns 15 it little weight while doing nothing more than ignoring it, asserting without explanation that 16 17 another medical opinion is more persuasive, or criticizing it with boilerplate language that fails 18 to offer a substantive basis for his conclusion." Garrison v. Colvin, 759 F. 3d 995, 1012—13 19 (9th Cir. 2014). 20 Pursuant to the treating physician rule, the medical opinion of the physician engaged in 21 22 the primary treatment of a claimant is given "controlling weight" if it is well-supported by 23 medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with 24 the other substantial evidence in the case record. 20 C.F.R. § 404.1527(c)(2). If a treating 25 physician’s opinion is not given "controlling weight," it is still entitled to deference, and the ALJ 26 must assess the following factors to determine how much weight to afford the opinion: the length 27 28 of the treatment relationship, the frequency of examination by the treating physician, the medical 15 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 15 of 21 1 evidence supporting the opinion with the record as a whole, the qualifications of the treating 2 physician, and other factors tending to support or contradict the opinion. 20 C.F.R. § 3 404.1527(c)(2). 4 5 A. Dr. Kropp 6 This case was remanded for a proper assessment of Dr. Kropp’s opinion. T 598. 7 Unfortunately, the RFC determination is unsupported by substantial evidence yet again because 8 the ALJ completely mishandled treating physician Dr. Kopp’s opinion which should have been 9 significant, if not controlling weight. The ALJ once again fails to provide good reasons for 10 11 discounting Dr. Kropp’s opinions. 12 Here, in assessing Plaintiff’s RFC, the ALJ gave little weight to the disabling medical 13 source statement completed by Dr. Kropp. T 477. Specifically, Dr. Kropp opined that Plaintiff’s 14 symptoms and pain are constantly severe enough to interfere with the attention and concentration 15 required to perform simple, work-related tasks, and that she would need to recline or lie down in 16 17 excess of typical breaks during a workday. T 297. He opined she can walk only 1 city block 18 with rest or significant pain, and can stand/walk for 5 minutes at a time and for a total of 1 hour 19 in an eight-hour workday. T 297. He opined she can sit for 5 minutes at a time and for a total of 20 1 hour in an eight-hour workday. T 297. He opined she can occasionally lift less than 10 pounds, 21 and can never lift 10 pounds or more. T 298. Finally, he opined that Plaintiff is not physically 22 23 capable of working an 8-hour day, 5 days a week on a sustained basis. T 298. 24 Here, the ALJ offers scant analysis of the opinion of Dr. Kropp, indicating that there is no 25 objective evidence to support the limitations. T 478. The ALJ then goes on to point to instances 26 in the record where examination findings were normal. T 478. However, this reasoning is 27 28 overbroad, and fails to account for Dr. Kropp’s expertise in interpreting his own medical records 16 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 16 of 21 1 and objective findings, and further fails to account for the treatment records which do document 2 specific findings and abnormal reflexes. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 3 2014) (An ALJ may not pick and choose unfavorable evidence while ignoring evidence 4 5 favorable to the claimant). 6 Indeed, the record is replete with significant objective findings and aggressive treatment 7 including surgical procedures to treat Plaintiff’s pain and symptoms. Specifically, Plaintiff’s 8 records show surgical treatment in June of 2009 to implant a spinal stimulator, which required 9 various adjustments and ultimately failed to treat Plaintiff’s condition. T 310, 304, 308, 311-314, 10 11 317, 319. Plaintiff ultimately underwent another surgery to have the device removed, as it was 12 no longer treating her pain and was causing unpleasant side effects. T 319-322, 214, 224-228. 13 Following evaluation by Dr. Troxell and updated imaging, Plaintiff was diagnosed with 14 autonomic dysreflexia and suffered associated symptoms of chronic pain, persistent sweating, 15 and significant anxiety and depression related to her loss of function. T 381-384. Dr. Kropp’s 16 17 treatment notes document symptoms of sweating and autonomic changes through her body, as 18 well as radicular pain, difficulty sitting, and difficulty lying down. T 325, 329, 1083. His 19 examination notes reveal hyper reflexes consistent with upper motor neuron findings. T 325, 20 239. Further, an MRI revealed lumbar facet degenerative joint disease. T 903. 21 22 In weighing Dr. Kropp’s opinion, the ALJ failed to evaluate the relevant factors, 23 including the length of the treatment relationship, the frequency of examination by the treating 24 physician, the medical evidence supporting the opinion with the record as a whole, the 25 qualifications of the treating physician, and other factors tending to support or contradict the 26 opinion. 20 C.F.R. § 404.1527(c)(2). Here, Dr. Kropp has an extensive treatment relationship 27 28 with the Plaintiff spanning at least 8 years, treats her regularly, refers her to specialists, and has 17 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 17 of 21 1 consulted with those specialists on the proper course of care. T 214-16, 297-98, 304, 310-14, 2 317, 319-22, 325, 329, 334-37, 340-42, 1083, 1086, 1096, 1100. Further, Dr. Kropp’s opinion is 3 the only opinion from an examining physician regarding Plaintiff’s physical limitations. 4 5 Therefore, Dr. Kropp is in the best position to render an opinion regarding Plaintiff’s functional 6 capacity based on his extensive knowledge of her condition and longitudinal understanding of 7 her functional limitations. 8 The ALJ once again failed to give good reasons for discounting Dr. Kropp’s opinion. 9 This Court has already remanded this case so that appropriate weight be given to Dr. Kropp. 10 11 Duron v. Colvin, 2016 WL 26515 (D. Alaska Jan. 4, 2016). This Court also held that "[b]efore 12 dismissing Dr. Kropp’s opinion, the ALJ should have contacted Dr. Kropp for clarification of the 13 reasons for the opinions expressed in his medical source statement." Id. at *4. However, the 14 ALJ did not seek clarification from Dr. Kropp as required by the law of the case. See Quern v. 15 Jordan, 440 U.S. 332, 347 n. 18 (1979). Accordingly, this matter should be remanded for a 16 17 proper RFC determination so that Dr. Kropp’s opinions of Plaintiff’s limitations can be properly 18 reflected in the RFC determination. 19 B. Nurse Thompson 20 The ALJ erred in assigning Nurse Thompson’s opinion little weight. Under the 21 Regulations, licensed advanced practice nurses are considered acceptable medical sources. 20 22 23 C.F.R. § 404.1512(a)(7). In looking at the factors, Nurse Thompson’s opinion regarding 24 Plaintiff’s mental impairments should have been given significant or controlling weight. See 20 25 C.F.R. § 404.1527. 26 Nurse Thompson opined that Plaintiff has a marked limitation in the ability to remember 27 28 locations and extreme limitations in the ability to understand simple instructions, understand and 18 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 18 of 21 1 carry out detailed instructions, maintain regular attendance, work with others, make simple 2 decisions, complete a normal workday or week, and perform at a consistent pace. T 1321-22. 3 Nurse Thompson has been treating Plaintiff since April 2008 and has seen her on 4 5 numerous occasions for thoracic radiculopathy, chronic pain, chronic fatigue, autonomic 6 dysreflexia, anxiety, and depression. T 346-50, 362, 366, 403, 410, 1156-1225, 1309-12, 1350-7 55. Nurse Thompson has prescribed Flexeril, Percocet, Oxycodone, and Cymbalta. T 346-50, 8 362, 366, 403, 410, 1156-1225, 1309-12, 1350-55. Plaintiff has reported symptoms of 9 depression on many occasions. T 257, 261, 325, 327, 329, 334, 337, 340, 368, 383, 384, 457, 10 11 461, 893, 919, 1056, 1058, 1083, 1086, 1089, 1096, 1100, 1102, 1142, 1209, 1246, 1256, 1258, 12 1260, 1262, 1264, 1266, 1268, 1270, 1316, 1333, 1337, 1339, 1348. Further, ME Lace testified 13 that Plaintiff has depressive disorder secondary to chronic pain, consistent with Nurse 14 Thompson’s opinion. T 496. Additionally, Nurse Thompson’s is the only opinion from an 15 examining source regarding Plaintiff’s mental limitations. As such, Nurse Thompson’s opinion 16 17 should have been given at least significant weight. 18 Had Nurse Thompson’s opinion been weighed appropriately, the ALJ would have found 19 that Plaintiff meets listing 12.04. Paragraph A requires depressive disorder characterized by 5 or 20 more of the following: depressed mood, diminished interest in almost all activities, appetite 21 22 disturbance with change in weight, sleep disturbance, observable psychomotor agitation or 23 retardation, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or 24 thinking, or thoughts of death or suicide. 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 25 12.04. Plaintiff has reported depressed mood, weight gain, sleep disturbance, decreased energy, 26 and difficulty concentrating on multiple occasions. T 38, 224, 257, 261, 320, 323, 325, 327, 329, 27 28 334, 337, 340, 368-69, 383, 384, 457, 461, 893-94, 919, 930, 1056, 1058, 1074, 1083, 1086, 19 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 19 of 21 1 1089, 1096, 1100, 1102, 1142, 1209, 1246, 1256, 1258, 1260, 1262, 1264, 1266, 1268, 1270, 2 1316, 1328, 1333, 1337, 1339, 1341, 1348. 3 Paragraph B of the Listing requires an extreme limitation of one, or marked of two of the 4 5 following areas: understand, remember, or apply information; interact with others, concentrate, 6 persist, or maintain pace; and adapt or manage oneself. 20 C.F.R. Part 404, Subpart P, Appendix 7 1, Section 12.04. Nurse Thompson opined that Plaintiff has extreme limitations in the ability to 8 understand, remember, and carry out detailed instructions; work with others; and perform at a 9 consistent pace. T 1321-22. Had her opinion been given the appropriate weight, the ALJ would 10 11 have determined that Plaintiff meets Listing 12.04, thus resulting in a finding of disabled. 12 CONCLUSION 13 For the foregoing reasons, it is respectfully requested that the Commissioner’s decision 14 be reversed, and that this matter be remanded for a calculation of benefits. In the alternative, it is 15 respectfully requested that the ALJ’s decision be vacated, and this matter be remanded for 16 17 further proceedings, including a de novo hearing and new decision. 18 Respectfully submitted, 19/s/Edward A. Wicklund 20 Edward A. Wicklund, Esq. Attorney for Plaintiff 21 Olinsky Law Group 22 300 South State Street, Suite 420 Syracuse, New York 13202 23 Telephone: (315) 701-5780 Fax: (315) 701-5781 24 twicklund@windisability.com 25 26 27 28 20 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 20 of 21 1 CERTIFICATE OF SERVICE 2 This is to certify that I have this day served counsel for the Defendant with Plaintiff’s 3 Memorandum of Law by electronically filing the foregoing with the Clerk of the Court by using the CM/ECF system which will send electronic notification of such filing to: 4 5 Kathryn Ann Miller Richard L. Pomeroy 6 This 23rd day of October, 2017. 7 8/s/Edward A. Wicklund 9 Edward A. Wicklund, Esq. Attorney for Plaintiff 10 Olinsky Law Group 11 300 South State Street, Suite 420 Syracuse, New York 13202 12 Telephone: (315) 701-5780 Fax: (315) 701-5781 13 twicklund@windisability.com 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 Case 3:17-cv-00147-HRH Document 12 Filed 10/23/17 Page 21 of 21

NOTICE of Substitution by Nancy A. Berryhill

1 BRYAN SCHRODER 2 Acting United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 JEFFREY E. STAPLES Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone: (206) 615-3706 Fax: (206) 615-2531 11 jeff.staples@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 DEIDRE LEANORA DURON, Case No. 3:17-cv-00147-HRH 16 Plaintiff, 17 DEFENDANT’S NOTICE vs. OF SUBSTITUTION 18 NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. PLEASE TAKE NOTICE that the Defendant in the above-entitled action, without waiving 21 any objection to, inter alia, service, venue, or jurisdiction, hereby gives Notice that Kathryn Ann 22 Miller withdraws as counsel to the Commissioner of Social Security. All future mailings 23 regarding this case should be sent to: 24 Page 1 DEFENDANT’S NOTICE OF APPEARANCE-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 13 Filed 11/09/17 Page 1 of 3 1 JEFFREY E. STAPLES 2 Special Assistant United States Attorney Office of the General Counsel 3 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 4 Seattle, WA 98104-7075 Telephone: (206) 615-3706 5 Fax: (206) 615-2531 jeff.staples@ssa.gov 6 You are advised that service of all further pleadings, notices, documents or other papers 7 herein, not filed electronically, may be made upon Defendant by serving the above-named 8 attorney at this address. 9 DATED this 9th day of November 2017. 10 Respectfully submitted, 11 Bryan Schroder 12 Acting United States Attorney 13 RICHARD L. POMEROY Assistant United States Attorney 14 MATHEW W. PILE 15 Acting Regional Chief Counsel, Seattle, Region X 16 s/Jeffrey E. Staples JEFFREY E. STAPLES 17 Special Assistant United States Attorney Office of the General Counsel 18 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 19 Seattle, WA 98104-7075 Telephone: (206) 615-3706 20 Fax: (206) 615-2531 jeff.staples@ssa.gov 21 22 23 24 Page 2 DEFENDANT’S NOTICE OF APPEARANCE-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 13 Filed 11/09/17 Page 2 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Defendant’s Notice of Substitution was filed with the 3 Clerk of the Court on November 9, 2017, using the CM/ECF system, which will send notification 4 of such filing to the following: Edward A. Wicklund. 5 6 s/Laurie Cange LAURIE CANGE 7 Paralegal Specialist Intern Office of the General Counsel 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 3 DEFENDANT’S NOTICE OF APPEARANCE-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 13 Filed 11/09/17 Page 3 of 3

RESPONSE in Opposition re [12] MOTION to Remand to Social Security filed by Nancy A. Berryhill.

1 BRYAN SCHRODER 2 Acting United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 JEFFREY E. STAPLES Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone(206) 615-3706 Fax(206) 615-2531 11 jeff.staples@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 DEIDRE LEANORA DURON, Case No. 3:17-cv-00147-HRH 16 Plaintiff, 17 DEFENDANT’S RESPONSIVE BRIEF vs. 18 NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. 21 DISPUTED ISSUE 22 1. Whether the Administrative Law Judge (ALJ) reasonably weighed opinions from Larry 23 Kropp, M.D., and Catherine Thompson, ANP. Page 1 DEFENDANT’S RESPONSIVE BRIEF-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 14 Filed 11/22/17 Page 1 of 7 1 ARGUMENT 1 2 1. The ALJ reasonably weighed opinions from Dr. Kropp and Ms. Thompson. 3 a. Dr. Kropp 4 The ALJ rejected Dr. Kropp’s opinion that Plaintiff’s physical impairments would prevent 5 her from completing a normal workday. Tr. 297-98, 477-78. The ALJ found that there was 6 "simply no objective evidence to support the extreme limitations assessed by Dr. Kropp," and 7 concluded that Dr. Kropp’s opinion had no basis "other than the claimant’s complaints of pain." 8 Tr. 478. "[W]hen evaluating conflicting medical opinions, an ALJ need not accept the opinion of 9 a doctor if that opinion is brief, conclusory, and inadequately supported by clinical findings." 10 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Additionally, "[a]n ALJ may reject a 11 treating physician’s opinion if it is based'to a large extent’ on a claimant’s self-reports that have 12 been properly discounted as incredible." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 13 2008) (citations omitted). Consistent with the ALJ’s analysis, Dr. Kropp identified no objective 14 evidence in support of his opinion that Plaintiff could sit and stand/walk for no more than five 15 minutes at a time and could never lift even 10 pounds. Tr. 297-98. Although the ALJ’s earlier 16 discussion of Dr. Kropp’s opinion lacked the requisite specificity, Tr. 596-99, the ALJ here 17 detailed several specific pieces of evidence in the record that revealed a lack of support for Dr. 18 Kropp’s opinion. Tr. 478. For instance, numerous objective studies showed normal results. Tr. 19 20 21 1 Plaintiff asks the Court to apply various standards of review to the ALJ’s evaluation of the evidence. ECF No. 12. Congress, however, has restricted courts to a single standard of review: 22 substantial evidence. 42 U.S.C. § 405(g). This standard is "highly deferential" and requires affirmance of any finding that is supported by more than a "mere scintilla" of evidence. Valentine 23 v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). Higher or lower standards run afoul of the Congressional mandate. Page 2 DEFENDANT’S RESPONSIVE BRIEF-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 14 Filed 11/22/17 Page 2 of 7 1 329. Electrical testing showed no evidence of abnormality. Tr. 1307. A physical examination 2 was entirely normal. Tr. 458. Muscle examinations showed no instability. Tr. 884-85. On this 3 record, the ALJ could reasonably conclude that Dr. Kropp’s opinion was unsupported by objective 4 evidence. This was a valid basis for discounting Dr. Kropp’s opinion. 5 Plaintiff argues that she received "aggressive treatment including surgical procedures," 6 which served as "significant objective findings" in support of Dr. Kropp’s opinion. ECF No. 12 7 at 17. But treatment, even aggressive treatment, merely shows that Plaintiff’s medical providers 8 did not question the credibility of Plaintiff’s extensive pain complaints and treated her 9 accordingly. The ALJ, on the other hand, was required to do just that. See Edlund v. Massanari, 10 253 F.3d 1152, 1156 (9th Cir. 2001) ("The ALJ is responsible for determining credibility, 11 resolving conflicts in medical testimony, and resolving ambiguities."). Here, the ALJ found that 12 Plaintiff’s subjective complaints were not fully credible for a long list of reasons that Plaintiff 13 does not challenge. Tr. 472-75. Accordingly, treatment for Plaintiff’s subjective symptom reports 14 does not serve as an objective basis for Dr. Kropp’s opinion. Moreover, even if some isolated 15 findings could be found to support Dr. Kropp’s opinion, the numerous normal findings amounted 16 to more than a mere scintilla of evidence supporting the ALJ’s finding. The "key question is not 17 whether there is substantial evidence that could support a finding of disability, but whether there 18 is substantial evidence to support the Commissioner’s actual finding that claimant is not 19 disabled." Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). The Court should affirm. 20 Plaintiff argues that the ALJ "failed to evaluate the relevant factors" delineated in 20 21 C.F.R. § 404.1527(c)(2). On the contrary, the ALJ expressly "considered opinion evidence in 22 accordance with the requirements of 20 CFR 404.1527 and 416.927 and SSR 17-2p." Tr. 475. 23 Although an ALJ commits legal error by failing to consider relevant various factors in weighing Page 3 DEFENDANT’S RESPONSIVE BRIEF-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 14 Filed 11/22/17 Page 3 of 7 1 the evidence, the Ninth Circuit has never saddled ALJs with an additional burden of discussing all 2 (or any) such factors in the written decision. Trevizo v. Berryhill 862 F.3d 987, 998 (9th Cir. 3 2017). The Court should reject Plaintiff’s argument to the contrary. 4 Plaintiff argues that the ALJ was required to "seek clarification from Dr. Kropp as 5 required by the law of the case." ECF No. 12 at 18. But this Court did not direct the ALJ to 6 recontact Dr. Kropp on remand. Instead, the Court said that the ALJ should have recontacted Dr. 7 Kropp before dismissing his opinion based on the first decision. Tr. 598-99. In the prior decision, 8 the ALJ merely found that Dr. Kropp’s opinions were not supported by objective evidence, 9 leaving the basis for his opinion an open question. Tr. 559-60. As the Court held, this violated 10 Social Security Ruling (SSR) 96-5p, which directs ALJs to recontact a medical source where the 11 basis for his or her opinion cannot be ascertained. Tr. 598-99. On remand, however, the ALJ 12 concluded that Dr. Kropp could only have relied on Plaintiff’s "complaints of pain," which were 13 not fully credible for many reasons that go unchallenged here. Tr. 478. This shows that the ALJ 14 was able to ascertain the basis for Dr. Kropp’s opinion and so was not required to recontact him 15 under SSR 96-5p. The Court should reject Plaintiff’s argument to the contrary. 16 b. Ms. Thompson 17 The ALJ rejected Ms. Thompson’s opinion that Plaintiff had numerous moderate, marked, 18 and extreme limitations in her mental functioning. Tr. 477, 1321-24. Specifically, the ALJ found 19 that the "medical evidence of record does not support mental limitations to the extent assessed by 20 Ms. Thompson." Tr. 477. Ms. Thompson identified many marked and extreme limitations in 21 Plaintiff’s understanding, memory, concentration, and persistence. Tr. 1321-22. By Plaintiff’s 22 own report, though, she had no problems with memory, completing tasks, concentration, 23 understanding, or following directions. Tr. 175. An ALJ may reject limitations so extreme that Page 4 DEFENDANT’S RESPONSIVE BRIEF-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 14 Filed 11/22/17 Page 4 of 7 1 the claimant does not even purport to have them. Rollins v. Massanari, 261 F.3d 853, 856 (9th 2 Cir. 2001). Moreover, although Ms. Thompson believed that Plaintiff could not understand and 3 remember even simple instructions, Plaintiff routinely showed "good cognition" on examination. 4 Tr. 329, 334, 337, 1256, 1258, 1260. Other evidence confirmed that Plaintiff was cognitively 5 intact, which undermined Ms. Thompson’s assessment. Tr. 1247. Ms. Thompson described 6 Plaintiff’s impairments as "rapidly debilitating," Tr. 1329-30, but a thorough examination of 7 Plaintiff’s muscles showed no abnormalities. Tr. 884-85. Plaintiff was completely normal on a 8 physical examination. Tr. 1009. On this record, the ALJ could reasonably conclude that Ms. 9 Thompson’s opinion was unsupported by objective evidence and conflicted with the medical 10 record. The Court should affirm. 11 Plaintiff does not dispute the ALJ’s reasoning, nor does she argue that the ALJ erred in 12 finding that Ms. Thompson’s opinions was unsupported. ECF No. 12 at 18-20. Instead, Plaintiff 13 merely insists that the ALJ should have weighed Ms. Thompson’s opinion differently. Id. But 14 Plaintiff’s alternative interpretation of the evidence, even if plausible, provides no basis for 15 reversal of the ALJ’s decision. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). This is 16 because the "Court may not reweigh the evidence, substitute its judgment for [that of the 17 Commissioner], or give vent to feelings of compassion." Winans v. Bowen, 853 F.2d 643, 644-45 18 (9th Cir. 1987) (internal quotation and citation omitted). Plaintiff points to no objective evidence 19 supporting Ms. Thompson’s opinion, relying instead on the mere fact of her treatment relationship 20 and Plaintiff’s own unreliable reports of symptoms. ECF No. 12 at 19. The Court should decline 21 the invitation to reweigh the evidence in a manner more favorable to Plaintiff’s allegations. 22 23 Page 5 DEFENDANT’S RESPONSIVE BRIEF-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 14 Filed 11/22/17 Page 5 of 7 1 CONCLUSION 2 The Commissioner reasonably concluded that Plaintiff was not disabled within the 3 meaning of the Social Security Act. Because this conclusion is supported by substantial evidence, 4 the Court should affirm the Commissioner’s decision. 5 DATED this 22nd day of November 2017. 6 Respectfully submitted, 7 Bryan Schroder 8 Acting United States Attorney 9 RICHARD L. POMEROY Assistant United States Attorney 10 MATHEW W. PILE 11 Acting Regional Chief Counsel, Seattle, Region X 12 s/Jeffrey E. Staples JEFFREY E. STAPLES 13 Special Assistant United States Attorney Office of the General Counsel 14 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 15 Seattle, WA 98104-7075 Telephone(206) 615-3706 16 Fax(206) 615-2531 jeff.staples@ssa.gov 17 18 19 20 21 22 23 Page 6 DEFENDANT’S RESPONSIVE BRIEF-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 14 Filed 11/22/17 Page 6 of 7 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Defendant’s Responsive Brief was filed with the Clerk 3 of the Court on November 22, 2017, using the CM/ECF system, which will send notification of 4 such filing to the following: Edward A. Wicklund. 5 6 s/Jeffrey E. Staples JEFFREY E. STAPLES 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 Page 7 DEFENDANT’S RESPONSIVE BRIEF-[3:17-cv-00147-HRH] Case 3:17-cv-00147-HRH Document 14 Filed 11/22/17 Page 7 of 7

Appellant's REPLY BRIEF by Deidre Leanora Duron.

1 Edward A. Wicklund, Esq. Admitted Pro Hac Vice 2 Attorney for Plaintiff 3 Olinsky Law Group 300 South State Street, Suite 420 4 Syracuse, New York 13202 5 Telephone: (315) 701-5780 Fax: (315) 701-5781 6 twicklund@windisability.com 7 8 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ALASKA 9 Deidre Leanora Duron, 10 11 Plaintiff, Case No. 3:17-CV-00147-HRH 12 vs. 13 14 PLAINTIFF’S REPLY BRIEF Nancy A. Berryhill, (SOCIAL SECURITY) 15 Acting Commissioner of Social Security, 16 Defendant 17 18 PLAINTIFF’S REPLY MEMORANDUM OF LAW IN SUPPORT OF A SOCIAL SECURITY APPEAL 19 20 I. ARGUMENT 21 Plaintiff reasserts and relies on the arguments set forth in her opening Brief at Dkt. No. 22 12 and replies to the following particular points raised by the Commissioner in her Responsive 23 Brief at Dkt. No. 14. 24 (1) The ALJ should have afforded Dr. Kropp significant, if not controlling weight. 25 26 The Commissioner contends that the ALJ’s finding that there was "simply no objective 27 evidence" supporting the limitations assessed by Dr. Kropp, however, this argument must fail, as 28 Reply Brief (Social Security) Deidre Leanora Duron v. Berryhill Case No. 3:17-CV-00147-HRH 1 Case 3:17-cv-00147-HRH Document 15 Filed 12/06/17 Page 1 of 7 1 the record was replete with such evidence. Dkt. 14 at 2. The Commissioner also cites the 2 "numerous" objective studies which showed normal results. Dkt. No. 14 at 2. While this may be 3 semantically adequate, these numerous objective studies total 4, and can hardly be described as 4 5 numerous in light of Plaintiff’s medical record which includes dozens of treatments over the 6 course of almost a decade. Moreover, the listed studies were not even "normal," as they 7 included EMG studies which showed radiculopathy from T5-T7, tenderness to palpation, 8 hyperreflexia in the bilateral upper and lower extremities, and autonomic dysfunction. T 458, 9 885. The ALJ noted that "without any other corroborating objective findings, it is difficult to 10 11 quantify pain." This is a bold assertion. First of all, while continuously denying the existence of 12 objective evidence, the ALJ noted objective findings throughout the decision (see T 473-77), 13 including, inter alia, neurological compromises, chronic denervation, bilateral hyperreflexia, and 14 tilt table testing. While the ALJ mischaracterizes these findings during his analysis 1, even if they 15 were considered minimal, they would still be objective findings. 16 17 The Commissioner also argues that Plaintiff’s aggressive treatment, including surgical 18 procedures, was insignificant support for Dr. Kropp’s opinion, as it "merely shows that 19 Plaintiff’s medical providers did not question the credibility of Plaintiff’s extensive pain 20 complaints and treated her accordingly." Dkt. No. 14 at 3. Here, the Commissioner admits that 21 22 Plaintiff underwent aggressive treatment for her pain. Id. Essentially, the Commissioner argues 23 that Plaintiff had multiple surgeries and a spinal stimulator implant for fun. Dr. Kropp, who was 24 also Plaintiff’s surgeon, noted before her procedure that "she has had multiple second opinions 25 by other physicians including surgeons, other interventionists, and family doctors, and none of 26 27 1 For example, compare T 473-74 with T 330, 851, 912, 917, and 921. 28 Reply Brief (Social Security) Deidre Leanora Duron v. Berryhill Case No. 3:17-CV-00147-HRH 2 Case 3:17-cv-00147-HRH Document 15 Filed 12/06/17 Page 2 of 7 1 these have been successful in coming up with a cure" for her thoracic pain. T 924. Even though 2 Plaintiff had "tried everything over the years including injections, physical therapy, modalities 3 such as chiropractic and acupuncture… thoracic catheters," it is the ALJ’s suggestion that her 4 5 pain was not real, and she underwent all of these procedures, notwithstanding the pain and cost 6 associated with them, for fun. In suggesting that Plaintiff’s pain is not credible the 7 Commissioner implies that Plaintiff is a veritable Houdini, and somehow escaped from the 8 trained eye of every single examining physician, professor of neurology, chiropractor, and 9 specialist for almost 10 years, after successfully learning how to control the electrical signals in 10 11 her body. 12 The assertion that Plaintiff’s reports were not supported by objective medical evidence is 13 nonsensical. This contention, while undermined by the record, is clearly and succinctly 14 undermined by Dr. Shannon, who the ALJ does not name in his decision.2 Dr. Shannon noted 15 that Plaintiff has been diagnosed with an autonomic dysfunction in the thoracic spine as well as 16 17 thoracic radiculopathy, of which the symptomology, exam findings, and objective testing all 18 confirmed. T 1317. Dr. Shannon indicated that Plaintiff has had three EMGs, all which show 19 neuropathy at TS-6 and possibly T7, consistent with the patient's bone scan. T 1317. Further, 20 Dr. Shannon opined that: 21 22 The patient clearly has, due to the impact, fractures at T5, 6, and 7 with radiculopathy, i.e., neurological compromise at T5 and 6, and possibly T7. This 23 has all been objectively quantified. Additionally, the patient has autonomic 24 2 The Ninth Circuit has repeatedly remanded where the ALJ failed to weigh or ignored opinion 25 evidence. See Garrison v. Colvin, 759 F. 3d 995, 1012—13 (9th Cir. 2014) (ALJ "errs when he 26 rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it 27 with boilerplate language.") (emphasis added). 28 Reply Brief (Social Security) Deidre Leanora Duron v. Berryhill Case No. 3:17-CV-00147-HRH 3 Case 3:17-cv-00147-HRH Document 15 Filed 12/06/17 Page 3 of 7 1 overlay which could have occurred as a long-term result of the impact or by one or more of the procedures the patient had performed to her … Although 2 radiculopathies tend to heal with time, autonomic disturbances that last longer 3 than six months are, for all intents and purposes, permanent. There is no known cure for this condition once the neurological pattern is set up. As such, this patient 4 can expect to experience these symptoms for the remainder of her life … Prior to 5 the identification of these autonomic disorders patients, because of intractable pain, would routinely take their own lives. 6 Although I am certainly not an advocate for any patient in a medical legal 7 setting, I find it hard to believe that an individual would go through all of these 8 procedures over more than a decade's period of time, multiple dangerous medications which have their own negative health effects, and enormous expense 9 traveling around the country trying to find a solution for this problem, simply in an effort not to be gainfully employed … The nature of the disease itself does not 10 allow for this, because of continuous pain, especially when there is positional pain 11 such as sitting. 12 T 1317. Critically, Dr. Shannon went on to state, that "there is an abundance of objective 13 evidence showing fractures, neurological compromise, and autonomic dysfunction as well as 14 multiple opinions by multiple providers stating this is the case with this individual patient." T 15 1317 (emphasis added). These abnormal studies, show neurological compromise, decreased 16 17 sensation throughout the pertinent area, and chronic denervation. T 330, 851, 912, 916-17, 921. 18 Further, Dr. Shannon performed an electro-diagnostic study which showed a nerve compromise, 19 opined that these findings evidenced a spinal root problem, and used this study to suggest a 20 specific location for a surgical procedure. T 912. 21 22 The Commissioner indicates that the previous decision violated SSR 96-5p by as "the 23 ALJ merely found that Dr. Kropp’s opinions were not supported by objective evidence, leaving 24 the basis for his opinion an open question," but argues that the new decision gives another, 25 comprehensible basis for the weight afforded. Dkt. No. 14 at 4. While the basis for the ALJ’s 26 decision can now be ascertained, it can only be ascertained as a blatant attempt at tip toeing 27 28 Reply Brief (Social Security) Deidre Leanora Duron v. Berryhill Case No. 3:17-CV-00147-HRH 4 Case 3:17-cv-00147-HRH Document 15 Filed 12/06/17 Page 4 of 7 1 around the evidence of disability; and relying upon only select pieces of evidence, which if taken 2 out of context, might suggest that Dr. Kropp’s opinion is unsupported. But this 3 mischaracterization of the evidence is improper. See Ghanim v. Colvin, 763 F.3d 1154, 1164 4 5 (9th Cir. 2014) (An ALJ may not pick and choose unfavorable evidence while ignoring evidence 6 favorable to the claimant). This Court remanded, in part, because of the inadequate evaluation of 7 the medical source opinion of Dr. Kropp. T 601. In the newest decision, the ALJ’s analysis is 8 strikingly similar. Compare T 27 with T 478. As this Court has already held in its remand order, 9 the ALJ could not explain away Plaintiff’s allegations of pain with spinal imaging, as Plaintiff 10 11 was "not diagnosed with or treated for any degenerative spinal impairments of disc disease 12 which would be revealed by imaging." Duron v. Colvin, 2016 WL 26515 (D. Alaska Jan. 4, 13 2016). The ALJ once again noted spinal imaging which had no bearing, and cherry-picked 14 isolated incidents of normal testing. T 478. 15 While the Commissioner makes a valiant attempt at defending the ALJ’s decision, her 16 17 argument must fail as the ALJ once again gave an invalid basis for discounting Dr. Kropp’s 18 opinion. Here, the overwhelming evidence of record, including Plaintiff’s aggressive treatment, 19 surgical intervention, spinal stimulators, electro-diagnostic testing, and objective observations by 20 examining physicians are all consistent with Dr. Kropp’s opinion. As Dr. Kropp was a treating 21 22 physician, he was in a better position than anyone to evaluate Plaintiff’s limitations based on his 23 8 years of treatment and corresponding knowledge of her condition, and the resulting functional 24 limitations. The ALJ’s reliance on a cherry-picked or mischaracterized evidence to reject Dr. 25 Kropp’s opinion was improper, and the opinion should have been given significant, if not 26 controlling weight, and reflected in the RFC. 27 28 Reply Brief (Social Security) Deidre Leanora Duron v. Berryhill Case No. 3:17-CV-00147-HRH 5 Case 3:17-cv-00147-HRH Document 15 Filed 12/06/17 Page 5 of 7 1 II. CONCLUSION 2 For the foregoing reasons, it is respectfully requested that this Court remand this matter 3 for payment of benefits, or, in the alternative, for further administrative proceedings, including 4 5 de novo hearing and decision. 6 Date: December 6, 2017 Respectfully submitted, 7 /s/Edward A. Wicklund Edward A. Wicklund, Esq. 8 Admitted Pro Hac Vice 9 Attorney for Plaintiff Olinsky Law Group 10 300 South State Street, Suite 420 Syracuse, New York 13202 11 Telephone: (315) 701-5780 12 Fax: (315) 701-5781 holinsky@windisability.com 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply Brief (Social Security) Deidre Leanora Duron v. Berryhill Case No. 3:17-CV-00147-HRH 6 Case 3:17-cv-00147-HRH Document 15 Filed 12/06/17 Page 6 of 7 1 CERTIFICATE OF SERVICE 2 3 This is to certify that I have this day served counsel for the Defendant with Plaintiff’s Reply Memorandum of Law by filing the foregoing on the Court’s ECF system, which sent electronic 4 notice to the following recipients: 5 6 Jeffrey E. Staples Special Assistant United States Attorney 7 Office of the General Counsel 8 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 9 Seattle, WA 98104-7075 Telephone(206) 615-3706 10 Fax(206) 615-2531 11 jeff.staples@ssa.gov 12 This 6th day of December, 2017. 13 14 /s/Edward A. Wicklund 15 Edward A. Wicklund, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply Brief (Social Security) Deidre Leanora Duron v. Berryhill Case No. 3:17-CV-00147-HRH 7 Case 3:17-cv-00147-HRH Document 15 Filed 12/06/17 Page 7 of 7

ORDER granting [12] Motion to Remand. This matter is remanded for further proceedings. Signed by Judge H. Russel Holland on 2/14/18.

WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA DEIDRE LEANORA DURON,)) Plaintiff,)) vs.)) NANCY A. BERRYHILL, acting) Commissioner of Social Security,)) No. 3:17-cv-0147-HRH Defendant.) _______________________________________) ORDER This is an action for judicial review of the denial of disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff Deidre Leanora Duron has timely filed her opening brief,1 to which defendant, Nancy A. Berryhill, the acting Commissioner of the Social Security Administration, has responded.2 Oral argument was not requested and is not deemed necessary. Procedural Background On December 1, 2011, plaintiff filed an application for disability benefits under Title II of the Social Security Act. Plaintiff alleges that she became disabled on April 1, 2010. 1 Docket No. 12. 2 Docket No. 14. -1- 8 Plaintiff alleges that she is disabled due to thoracic spine issues, autonomic dysreflexia, and depression. Plaintiff's application was denied initially on August 7, 2012. Plaintiff requested an administrative hearing, which was held on February 11, 2013. On June 4, 2013, an administrative law judge (ALJ) denied plaintiff's claim. On December 2, 2014, the Appeals Council denied plaintiff's request for review of the ALJ's June 4, 2013 decision. Plaintiff sought judicial review. On January 4, 2016, the court reversed the decision of the Commissioner and remanded the matter for further hearings. On remand, an administrative hearing was held on December 6, 2016. A supplemental hearing was held on March 31, 2017. On May 3, 2017, the ALJ again denied plaintiff's claim. The Appeals Council did not assume jurisdiction within thirty days of the ALJ's May 3, 2017 decision, thereby making this the final decision of defendant. On July 5, 2017, plaintiff commenced this action for judicial review of defendant's final decision. General Background Plaintiff was born on January 30, 1978. She was 35 years old at the time of the February 11, 2013 hearing. Plaintiff is married and has two teen-age boys. Plaintiff has a GED and a paralegal certificate. Plaintiff's past relevant work includes work as an administrative assistant at a law firm. The ALJ's Decision The ALJ first determined that plaintiff "last met the insured status requirements of the -2- 8 Social Security Act on December 31, 2015."3 The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.4 At step one, the ALJ found that plaintiff "did not engage in substantial gainful activity during the period from her alleged onset date of April 1, 2010 through her date last insured of December 31, 2015...."5 At step two, the ALJ found that "[t]hrough the date last insured, the claimant had the 3 Admin. Rec. at 469. 4 The five steps are as follows: Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. Step two: Is the claimant's alleged impairment sufficiently severe to limit ... her ability to work? If so, proceed to step three. If not, the claimant is not disabled. Step three: Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four. Step four: Does the claimant possess the residual functional capacity ("RFC") to perform ... her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant's RFC, when considered with the claimant's age, education, and work experience, allow ... her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). 5 Admin. Rec. at 470. -3- 8 following severe impairments: chronic pain syndrome with degenerative disc disease and mild autonomic dysfunction; obesity; depressive disorder secondary to chronic pain issues; and somatoform disorder."6 At step three, the ALJ found "[t]hrough the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1...."7 "Between steps three and four, the ALJ must, as an intermediate step, assess the claimant's RFC." Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009). The ALJ found that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). In addition, the claimant was able to frequently push/pull and she was able to frequently reach and frequently overhead reach with the bilateral upper extremities. The claimant could have frequent foot control operation with the bilateral lower extremities. She could do no climbing of ladders, ropes, or scaffolds and she had to avoid exposure to unprotected heights. She could have frequent contact with moving machinery. She was limited to work which would not require expectations of performance regarding filling quotas. Finally, the claimant needed a sit/stand option that allowed her to alternate between a sitting or standing position throughout the day.[8] The ALJ considered plaintiff's pain and symptom statements and found that her 6 Admin. Rec. at 470. 7 Admin. Rec. at 470. 8 Admin. Rec. at 471. -4- 8 statements were "not entirely consistent with the medical evidence and other evidence in the record...."9 The ALJ gave significant weight to Dr. Lace's opinion.10 The ALJ gave partial weight to Dr. Lebeau's opinion.11 The ALJ gave some weight to Dr. Harder's opinion.12 The ALJ gave ANP Thompson's opinions little weight.13 The ALJ gave little weight to Dr. Kropp's opinion.14 The ALJ gave little weight to Dr. Vestal's opinion.15 The ALJ gave little weight to the opinion of Dr. Sanford.16 9 Admin. Rec. at 472. 10 Admin. Rec. at 475. Dr. Michael Lace, a licensed psychologist, testified as a medical expert at the March 31, 2017 administrative hearing. Admin. Rec. at 493. Dr. Lace testified that plaintiff had moderate difficulties with concentration, persistence, or pace; and moderate difficulties with adaptation. Admin. Rec. at 496. Dr. Lace testified that based on these moderate difficulties, plaintiff would be limited to "a slow pace setting in terms of tasks. By way of example, a high-speed production line setting with high quotas, frequent requirements for quotas would be precluded." Admin. Rec. at 496. Dr. Lace testified that plaintiff would be limited to "fairly routine and repetitive type of tasks." Admin. Rec. at 497. 11 Admin. Rec. at 476. Dr. Lebeau's opinion is discussed in detail below. 12 Admin. Rec. at 476. Dr. Harder's testimony is discussed in detail below. 13 Admin. Rec. at 477. Thompson's opinions are discussed in detail below. 14 Admin. Rec. at 477-78. Dr. Kropp's opinion is discussed in detail below. 15 Admin. Rec. at 478. On June 29, 2012, Dr. Robert Vestal opined that plaintiff could frequently lift/carry 10 pounds; stand/walk for 2 hours; sit for 6 hours; was unlimited as to pushing/pulling; could occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and crawl; could never climb ladders/ropes/scaffolds; and should avoid concentrated exposure to extreme cold, vibration, and hazards. Admin. Rec. at 66-68. 16 Admin. Rec. at 478. On June 29, 2012, Dave Sanford, Ph.D., opined that plaintiff's mental impairments were non-severe because she had no restrictions of activities of daily (continued...) -5- 8 At step four, the ALJ found that "[t]hrough the date last insured, the claimant was capable of performing past relevant work as a general clerk."17 Thus, the ALJ concluded that plaintiff "was not under a disability, as defined in the Social Security Act, at any time from April 1, 2010, the alleged onset date, through December 31, 2015, the date last insured...."18 Standard of Review Pursuant to 42 U.S.C. § 405(g), the court has the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner...." The court "properly affirms the Commissioner's decision denying benefits if it is supported by substantial evidence and based on the application of correct legal standards." Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). "Substantial evidence is 'more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). "'To determine whether substantial evidence supports the ALJ's decision, [the court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'" Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible 16 (...continued) living, no difficulties maintaining social functioning, and mild difficulties in maintaining concentration, persistence, or pace. Admin. Rec. at 64-65. 17 Admin. Rec. at 479. 18 Admin. Rec. at 479. -6- 8 to more than one reasonable interpretation, the court must uphold the Commissioner's decision. Id. But, the Commissioner's decision cannot be affirmed "'simply by isolating a specific quantum of supporting evidence.'" Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Discussion Plaintiff first argues that the ALJ erred in giving little weight to ANP Thompson's opinion as to plaintiff's mental capacity.19 Plaintiff saw Catherine Thompson, ANP, for management of her chronic pain. Thompson began treating plaintiff in 2008.20 On December 1, 2016, Thompson opined that plaintiff would have moderate limitations in her ability to carry out short instructions, marked limitations in her ability to remember and carry out work-like procedures, and extreme limitations in her ability to under- stand/remember short instructions, understand/remember/carry out detailed instructions, maintain concentration for extended periods, perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, work in coordination with or in proximity to others without being distracted by them, make simple work-related decisions, complete a normal workweek without interruptions from psychologically based symptoms, and perform at a consistent pace with a standard number and lengths of rest periods.21 19 Thompson also offered an opinion as to plaintiff's physical impairments, which the ALJ rejected, but plaintiff does not argue that this was error. 20 Admin. Rec. at 1329. 21 Admin. Rec. at 1321-1322. -7- 8 Thompson was a treating source. "As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). "At least where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for 'clear and convincing' reasons." Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). "[I]f the treating doctor's opinion is contradicted by another doctor, the Commissioner may not reject this opinion without providing 'specific and legitimate reasons' supported by substantial evidence in the record for so doing." Id. (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Thompson's opinion was contradicted by the opinions of Dr. Lace and Dr. Sanford. Thus, the ALJ was required to give specific and legitimate reasons for rejecting Thompson's opinion. The only reason the ALJ gave for rejecting Thompson's opinion was that it was not support by the medical evidence. The ALJ explained that there is no evidence in the record to support such extreme limitations and pointed out that plaintiff denied any difficulties with her memory, her ability to concentrate, and her ability to complete tasks.22 Plaintiff argues that this was not a legitimate reason because the record shows that she reported symptoms of depression on many occasions23 and even Dr. Lace testified that she 22 Admin. Rec. at 477. 23 Admin. Rec. at 257, 325, 329, 334, 337, 340, 383, 457, 1083, 1086, 1089, 1096, 1100, 1316, 1328, 1333. -8- 8 had depressive disorder secondary to chronic pain.24 But the fact that plaintiff had depression does not in and of itself mean that Thompson's opinion was supported by the medical evidence of record. Thompson's opinion was not that plaintiff had depression but that she was extremely limited in her mental capacity as a result of that depression. The evidence of record does not support Thompson's opinion. In particular, as the ALJ noted, plaintiff's own function report contradicts Thompson's opinion. On May 2, 2012, plaintiff reported that she can finish what she starts, can follow written and oral instructions "just fine" and handles stress and changes in her routine "just fine."25 In addition, plaintiff often showed "good cognition" upon exam.26 The ALJ did not err in rejecting Thompson's opinion as to plaintiff's mental capacity. Plaintiff next argues that the ALJ erred as to Dr. Kropp's opinion. Dr. Kropp, an interventional anesthesiologist, who treated plaintiff's spinal pain.27 On January 30, 2012, Dr. Kropp opined that plaintiff could walk 1 block, sit for 5 minutes at a time, stand for 5 minutes at a time, sit for 1 hour total in an 8-hour day, stand/walk for 1 hour total in an 8- hour day, and occasionally lift/carry less than 10 pounds.28 Dr. Kropp opined that plaintiff had limitations as to doing repetitive reaching, handling, or fingering but did not indicate 24 Admin. Rec. at 495. 25 Admin. Rec. at 175-176. 26 Admin. Rec. at 329, 334, 337, 1256, 1258, 1260. 27 Admin. Rec. at 1101. 28 Admin. Rec. at 297-298. -9- 8 specifically what these limitations were.29 Dr. Kropp opined that plaintiff would need to recline or lay down in excess of regularly scheduled breaks in an 8-hour day, but also wrote "N//A" in response to the question "[w]ill your patient need to take unscheduled breaks during an 8-hour workday?"30 Dr. Kropp also opined that plaintiff's symptoms would be severe enough to constantly interfere with the "attention & concentration required to perform simple work-related tasks[.]"31 Dr. Kropp opined that plaintiff was not physically capable of working an 8 hour day, 5 days week on a sustained basis.32 Plaintiff first argues that the ALJ erred as to Dr. Kropp's opinion because the ALJ failed to evaluate the factors set out in 20 C.F.R. § 404.1527(c), as the ALJ is required to do. These factors are 1) examining relationship, 2) treatment relationship, 3) supportability, 4) consistency, 5) specialization, and 6) any other relevant factors. Plaintiff argues that the ALJ failed to consider that Dr. Kropp had an extensive treatment relationship with plaintiff, spanning at least eight years, that he treated her regularly, that he referred her to specialists, and that he had consulted with those specialists on the proper course of care. Plaintiff also points out that Dr. Kropp was the only physician who had actually examined her who offered an opinion as to her physical limitations. The ALJ did not fail to evaluate the factors set out in 20 C.F.R. § 404.1527(c). The 29 Admin. Rec. at 298. 30 Admin. Rec. at 297. 31 Admin. Rec. at 297. 32 Admin. Rec. at 298. -10- 8 ALJ expressly stated that he "considered opinion evidence in accordance with the requirements of 20 CFR 404.1527...."33 More specifically, as to Dr. Kropp's opinion, the ALJ noted that Dr. Kropp was plaintiff's "long-time treating provider" and the ALJ stated that he had considered Dr. Kropp's opinion "in light of the fact that he has been treating claimant since 2004[.]"34 The ALJ also considered the supportability of Dr. Kropp's decision. In fact, the only reason the ALJ gave for rejecting Dr. Kropp's opinion was that it was not supported. Plaintiff next argues that the ALJ erred as to Dr. Kropp's opinion because the ALJ failed to follow the court's direction as to Dr. Kropp's opinion on remand. "[A]s a general principle, the United States Supreme Court has recognized that an administrative agency is bound on remand to apply the legal principles laid down by the reviewing court.'" Samples v. Colvin, 103 F. Supp. 3d 1227, 1232 (D. Or. 2015) (quoting Ischay v. Barnhart, 383 F. Supp. 2d 1199, 1213–1214 (C.D. Cal 2005). An ALJ errs if he fails to follow the specific instructions of the court in a remand order. Id. In the June 4, 2013 decision, the ALJ rejected Dr. Kropp's decision because it was "inconsistent with the evidentiary record as a whole, specifically the objective evidence which revealed that the claimant had normal strength, reflexes, and sensations."35 The ALJ also found Dr. Kropp's opinion "inconsistent with the imaging of the claimant's spine, 33 Admin. Rec. at 475. 34 Admin. Rec. at 477. 35 Admin. Rec. at 27. -11- 8 which, as noted above, has also been unremarkable."36 The court found that these were not legitimate reasons.37 The court found that the second reason was not legitimate because "[p]laintiff was not diagnosed with or treated for any degenerative impairments or disc disease which would have been revealed by imaging."38 As to the first reason, the court found that "[b]efore dismissing Dr. Kropp's opinion, the ALJ should have contacted Dr. Kropp for clarification of the reasons for the opinions expressed in his medical source statement."39 This finding was apparently based on "SSR 96-5p, which requires that 'if the evidence does not support a treating source's opinion ... and the adjudicator cannot ascertain the basis of the opinion from the case record, the adjudicator must make 'every reasonable effort' to recontact the source for clarification of the reasons for the opinion.'"40 Although in the conclusion of its decision, the court only generally remanded the matter "for further proceedings consistent with this opinion[,]"41 earlier in the decision, the court specifically stated that "[u]pon remand, the Commissioner 36 Admin. Rec. at 27. 37 Admin. Rec. at 598-599. 38 Admin. Rec. at 598. 39 Admin. Rec. at 599. 40 Admin. Rec. at 598. 41 Admin. Rec. at 601. -12- 8 is reminded of the guidance of SSR 96-5p[.]"42 The question here is: "Was the ALJ required by the district court's order to contact Dr. Kropp to get a clarification of his opinion?" This district court concludes that the prior court did not specifically order the ALJ to contact Dr. Kropp. Rather, the prior court simply reminded the ALJ to look to SSR 96-5p for guidance. SSR 96-5p instructs an ALJ to contact a treating physician if the ALJ cannot ascertain the basis for that physician's opinion. In the decision under review, the ALJ stated that "[w]hile I can appreciate that Dr. Kropp has a treating relationship with the claimant, and he is familiar with her subjective complaints, I agree with Dr. Lebeau that there is no evidence in the record other than the claimant's complaints of pain."43 The court reads this statement to mean that the ALJ concluded that the basis for Dr. Kropp's opinion was plaintiff's subjective complaints of pain. In other words, on remand, the ALJ was able to ascertain the basis for Dr. Kropp's opinion and thus there was no need for the ALJ to contact Dr. Kropp for a clarification of his opinion. The final question as to Dr. Kropp's opinion is whether the ALJ's reason for rejecting it was legitimate. On remand, and after hearings on December 6, 2016 and March 31, 2017, the ALJ again rejected Dr. Kropp's opinion because it was not supported by the objective evidence of record. In support, the ALJ cited to plaintiff's normal cervical and thoracic spine MRIs in November 2011, her "relatively" normal 2013 and 2016 nerve conduction studies, 42 Admin. Rec. at 598. 43 Admin. Rec. at 478. -13- 8 her normal tilt test, and one treatment record from October 2012 which indicated that her gait was non-antalgic and that she had no range of motion restrictions, no weakness or atrophy, no deep palpitation tenderness, and no difficulties heel-toe walking.44 An ALJ may not reject the opinion of a treating physician such as Dr. Kropp "without providing 'specific and legitimate reasons' supported by substantial evidence in the record." Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (quoting Lester, 81 F.3d at 830). In again deciding in the decision under review that Dr. Kropp's opinion was not supported by evidence in the record, the ALJ relied upon the testimony of Dr. Lebeau at the March 31, 2017, supplemental hearing. Dr. Lebeau testified that, in his opinion, plaintiff had "a mysterious, still undiagnosed, chronic pain that appears to have been very, very severe at times and which does not seem to be ... some sort of phony thing or some sort of feigned or false matter."45 Dr. Lebeau opined that plaintiff could lift/carry ten pounds frequently and 20 pounds occasionally; could sit for 6 hours but would need to change positions every hour; could stand for 3 hours but would need to change positions every half hour; could walk for 2 hours but would need to change positions every half hour; could frequently reach and push/pull; could continuously handle, finger, and feel; could use her feet for repetitive functions frequently; could never climb ladders/scaffolds; could occasionally climb stairs/ramps; could continuously balance; could occasionally stoop, kneel, crawl, and crouch; 44 Admin. Rec. at 478. 45 Admin. Rec. at 502-503. -14- 8 should never be around unprotected heights; and could frequently be around moving mechanical parts.46 Dr. Lebeau was also asked what effect plaintiff's pain, which he characterized as severe, would have on her ability to sustain a 40-hour workweek over time, and he testified that "[i]t would be very adverse unless there is some improvement."47 He later testified that he might leave the word "very" out, but that plaintiff's pain would have an adverse effect on her ability to sustain full-time employment.48 The ALJ rejected Dr. Lebeau's testimony about plaintiff's pain, which in this court's view substantially validates Dr. Kropp's opinion, because "there is just no evidence in the record to determine that [her pain] would prevent her from sustaining full-time work."49 The ALJ then noted that plaintiff "has consistently been able to attend to appointments, including those located out-of-state. She has remained engaged in her treatment and care, and she has conducted her own research into her condition."50 The court fails to see how plaintiff's participation in her treatment and care equates to her being able to work full-time despite pain that both medical experts have testified would adversely affect her ability to work. At the December 6, 2016, rehearing, Dr. Harder (an internal medicine medical expert) testified that plaintiff would "have several days of the month where [s]he can't go to work because 46 Admin. Rec. at 507-508. 47 Admin. Rec. at 514. 48 Admin. Rec. at 516. 49 Admin. Rec. at 476. 50 Admin. Rec. at 476. -15- 8 [s]he's going to the doctor and because of the unscheduled intrusions of [her] symptoms."51 Dr. Harder was unable to offer an opinion as to plaintiff's functional capacity and recommended that plaintiff be sent to a physiatrist to get a good functional assessment.52 "The ALJ in a social security case has the independent 'duty to fully and fairly develop the record and to assure that the claimant's interests are considered.' This duty extends to the represented as well as to the unrepresented." Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (internal citations omitted). In that case, the ALJ was faulted regarding the completeness of the record where the ALJ relied upon the testimony of a medical expert who had testified that there was insufficient evidence for him to render an opinion. Id. at 1150-51. Here, as in Tonapetyan, the ALJ adhered to his original rejection of Dr. Kropp's opinion despite the testimony of Dr. Lebeau and the recommendation of Dr. Harder. That plaintiff is experiencing significant pain is undisputed. The record lacks functional capacity evidence which may or may not support plaintiff's description of her limitations due to pain. Although it appears that plaintiff was sent for a consultative exam after the December 6, 2016 rehearing as she was examined by Susan Klimow, M.D., on January 19, 2017,53 the ALJ then rejected Dr. Klimow's opinion because it "address[ed] the 51 Admin. Rec. at 545. 52 Admin. Rec. at 547. 53 Admin. Rec. at 1332-1334. -16- 8 time period beyond the scope of this decision."54 "'Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits....'" Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001) (quoting Sims v. Apfel, 530 U.S. 103, 110–11 (2000)). The ALJ did not fulfill that duty because the ALJ failed to develop a record that would explain the impact of plaintiff's pain upon her functional capacity. It was error for the ALJ to reject Dr. Kropp's opinion, which was based on plaintiff's pain complaints, complaints which were not disputed by either Dr. Lebeau or Dr. Harder, without fully and fairly developing the record as to the effect of plaintiff's pain upon her ability to sustain full-time work. Because the ALJ erred, then the court must decide whether to remand for an award of benefits or for further proceedings. The court follows a three-step analysis to determine whether a remand for an award of benefits would be appropriate. "First, [the court] must conclude that 'the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion.'" Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014)). "Second, [the court] must conclude that 'the record has been fully developed and further administrative proceedings would serve no useful purpose.'" Id. (quoting Garrison, 759 F.3d at 1020). "Where there is conflicting evidence, and not all essential factual issues have been 54 Admin. Rec. at 478. -17- 8 resolved, a remand for an award of benefits is inappropriate." Treichler v. Comm'r of Social Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014). "Third, [the court] must conclude that 'if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.'" Brown-Hunter, 806 F.3d at 495 (quoting Garrison, 759 F.3d at 1021). But, "even if all three requirements are met, [the court] retain[s] 'flexibility' in determining the appropriate remedy" and "may remand on an open record for further proceedings 'when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.'" Id. (quoting Garrison, 759 F.3d at 1021). Here, a remand for further proceedings is appropriate because further development of the record is necessary to determine what impact plaintiff's pain has on her ability to sustain full-time employment. Conclusion Based on the foregoing, the Commissioner's decision is reversed. This matter is remanded for further proceedings. On remand, the ALJ shall obtain an opinion from a physiatrist as to plaintiff's functional capacity and, if necessary, also obtain further testimony from a vocational expert as to plaintiff's ability to perform full-time work. DATED at Anchorage, Alaska, this 14th day of February, 2018. /s/ H. Russel Holland United States District Judge -18- 8

JUDGMENT: The Commissioner's decision is reversed and this matter is remanded back to the SSA for further proceedings. Signed by Judge H. Russel Holland on 2/28/18. (Additional attachment(s) added on 6/6/2018: # (1) Judgment with attorney fees and costs (redistrubuted))

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA DEIDRE LEANORA DURON, Plaintiff, Case Number 3:17-cv-00147-HRH v. NANCY A. BERRYHILL, Defendant. JUDGMENT IN A CIVIL CASE JURY VERDICT. This action came before the court for a trial by jury. The issues have been tried and the jury has rendered its verdict. XX DECISION BY COURT. This action came to trial or decision before the Court. The issues have been tried or determined and a decision has been rendered. IT IS ORDERED AND ADJUDGED: THAT the Commissioner's decision is reversed and this matter is remanded back to the Social Security Administration for further proceedings in accord with the court's order of February 14, 2018, page 18 (Docket No. 16). APPROVED: s/ H. Russel Holland H. Russel Holland United States District Judge Date: February 28, 2018 NOTE: Award of prejudgment interest, costs and attorney's fees are governed Lesley K. Allen by D.Ak. LR 54.1, 54.3, and 58.1. Clerk of Court [Jmt2 - Basic - rev. 1-13-16}

First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Deidre Leanora Duron.

EDWARD A. WICKLUND, Esq. New York No. 5027818 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA DEIDRE LEANORA DURON, Plaintiff, Civil Action No. 3:17-cv-00147-HRH v- NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. ----------------------------------------------------------- Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 COMES NOW Plaintiff, by her attorney, Edward A. Wicklund, moves the court for an award to be paid by the Defendant under the Equal Access to Justice Act, 28 USCS § 2412. Plaintiff may receive an award under the Equal Access to Justice Act because she is the prevailing party, is an individual whose net worth did not exceed two million dollars when the action was filed, and the position of the United States and at the agency was not substantially justified. There are no special circumstances in this case which make an award under the EAJA unjust. This motion is supported by a Declaration of Plaintiff's attorney, attached time and cost records and an Affidavit and Waiver of Direct Payment by the plaintiff. Executed this May 15, 2018 Respectfully submitted, /s/ Edward A. Wicklund Edward A. Wicklund, Esq. New York Bar # 5027818 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com To: BRYAN SCHRODER Acting United States Attorney RICHARD L. POMEROY Assistant United States Attorney Federal Bldg & U.S. Courthouse 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 Telephone: (907) 271-5071 Fax: (907) 271-2344 Email: richard.pomeroy@usdoj.gov JEFFREY E. STAPLES Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3706 Fax: (206) 615-2531 Email: jeff.staples@ssa.gov Of Attorneys for Defendant

Proposed Order

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA DEIDRE LEANORA DURON, Plaintiff, Civil Action No. 3:17-cv-00147-HRH -v- NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. ----------------------------------------------------------- (Proposed) Order Awarding Attorney's Fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) Before the Court is the Motion of Plaintiff, Deidre Leanora Duron, for award of attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Based on the pleadings as well as the position of the defendant commissioner, if any, and recognizing the Plaintiff's waiver of direct payment and assignment of EAJA to her counsel, IT IS HEREBY ORDERED that attorney fees, expenses, and costs in the total amount of Six Thousand Three Hundred Sixty-Four Dollars and Ninety-Four Cents ($6,364.94) 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). The Court hereby awards EAJA fees, broken down as follows: 1. Plaintiff is awarded $5,947.27 for paralegal, law clerk and attorney's fees under 28 U.S.C. § 2412(d); 2. Plaintiff is awarded $17.67 in expenses for Certified Mail for service of Summons and Complaint. 3. Plaintiff is awarded $400.00 in costs for reimbursement to the Client for the filing fee to initiate this civil action. If the U.S. Department of the Treasury determines that Plaintiff's EAJA fees and expenses are not subject to offset allowed under the Department of the Treasury's Offset Program (TOPS), then the check for EAJA fees and expenses shall be made payable to Plaintiff's attorney, Edward A. Wicklund. Whether the check is made payable to Plaintiff or to Edward A. Wicklund, the check shall be mailed to Edward A. Wicklund at the following address: 300 South State Street Suite 420 Syracuse, NY 13202 So ordered. Date: ________________ ______________________________ H. Russell Holland Senior United States District Judge [proposed Order proffer: Edward A. Wicklund; copy to Jeffrey E. Staples]

DECLARATION of Edward A. Wicklund, Esq. re [18] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Deidre Leanora Duron.

EDWARD A. WICKLUND, Esq. New York No. 5027818 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA DEIDRE LEANORA DURON, Plaintiff, Civil Action No. 3:17-cv-00147-HRH v- NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. ----------------------------------------------------------- Attorney's Affirmation in Support Of Fees Pursuant To the Equal Access to Justice Act, 28 U.S.C. § 2412 ________________________________________ Edward A. Wicklund affirms and declares as follows: 1. I am an attorney licensed to practice law in the State of New York and admitted to the District of Alaska Federal Court Pro Hac Vice and I am the plaintiff's attorney in this matter. 2. I make this affirmation knowing that the Court will rely upon it assessing any awards under the Equal Access to Justice Act disposed of under 28 USCS § 2412. 3. There are no special circumstances in this case which make an award under the EAJA unjust. 4. The Court ordered on February 14, 2018 that the above-entitled case be remanded for further proceedings, under the fourth sentence of 42 U.S.C. § 405(g). 5. For the Equal Access to Justice Act, I am requesting an hourly rate of $196.79 for attorney time. See generally, http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 U.S.C.A 9th Circuit EAJA Table. If attorney fees are calculated at this rate for 21.1 hours of work performed, they total $4,152.27. 6. I am also requesting $125.00 per hour for 7 hours of law clerk time equaling $875.00. 7. I am also requesting $100.00 per hour for 9.2 hours of paralegal time equaling $920.00. I am requesting $5,947.27 for Counsel fees which includes attorney, law clerk and paralegal time. 8. The time accounting is presented to the court in two fashions. The total compensable time spent by all professional staff (Exhibit A); the total compensable time spent by all attorneys (Exhibit B); the total compensable time spent by law clerks (Exhibit C); and the total compensable time spent by paralegals (Exhibit D). The attorneys involved in this case are as follows: Edward A. Wicklund, Esq., Marisa Burkett, Esq., and Amanda Haasz, Esq. The law clerks involved in working on this case are as follows: Matthew McGarry. The paralegals involved in working on this case are as follows: Shannon Persse, Michelle Callahan, Michael Smith, Jonnah Graser, Moira Deutch, and Kyrsten Gifford. 9. I am requesting reimbursement of expenses in the amount $17.67 for Certified Mail for service of the summons and complaint as shown in Exhibit E. 10. I am requesting reimbursement of costs in the amount of $400.00 for the cost to initiate this civil action as shown in Exhibit F. This cost is reimbursable to the client. 11. All services on this case were rendered by your affiant and my professional staff, unless specifically noted otherwise. The attached records were created and stored in the firms Prevail Database, and are printed out and attached. The itemized time represents hours spent preparing and handling this case for U.S. District Court. Clerical time is not included in this petition or has been zeroed out. 12. Attached is the Fee Agreement duly executed by the plaintiff (Exhibit G). Waiver of Direct Payment of EAJA Fees 13. Attached is an Affidavit and Waiver of Direct Payment duly executed by the plaintiff (Exhibit H). With this Waiver, if Plaintiff owes a debt that qualifies under the Treasury Offset Program (31 USCS § 3716), any payment shall be made payable to the Plaintiff and delivered to the Plaintiff's attorney. If the United States Department of Treasury determines that Plaintiff owes no debt subject to offset, the government will pay such fees directly to the Plaintiff's attorney. Astrue v. Ratliff, 560 U.S. 586 (U.S. 2010). Executed this May 15, 2018 Respectfully submitted, /s/ Edward A. Wicklund Edward A. Wicklund, Esq. New York Bar # 5027818 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Email: fedctgroup@windisability.com To: BRYAN SCHRODER Acting United States Attorney RICHARD L. POMEROY Assistant United States Attorney Federal Bldg & U.S. Courthouse 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 Telephone: (907) 271-5071 Fax: (907) 271-2344 Email: richard.pomeroy@usdoj.gov JEFFREY E. STAPLES Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3706 Fax: (206) 615-2531 Email: jeff.staples@ssa.gov Of Attorneys for Defendant

Exhibit A All Professional Time

Exhibit A Ledger Duron, Deidre Leanora Date  Subject Hours Timekeeper 5/16/2017 Correspondence to Client re: Referral acknowledgment letter 0.2 Gifford, Kyrsten 5/16/2017 Files received and processed from referral source for attorney review 0.6 Gifford, Kyrsten 5/16/2017 Telephone call with Client re: Debt conference call, explained process 0.4 Gifford, Kyrsten 5/18/2017 Review decisions and evidence to determine whether to appeal case 1 Wicklund, Edward A. 5/25/2017 Telephone call to Client re: assessment of IFP need 0.3 Graser, Jonnah 5/26/2017 Telephone call w/ Client re: acceptance of case and IFP assessment (supervisor) 0 Smith, Michael P. 5/30/2017 FDC Prospect packet sent to Client via Right Signature 0.2 Smith, Michael P. 5/30/2017 FDC prospect packet prepared for Client completion 0.6 Smith, Michael P. 6/5/2017 Email to Client re: Follow up on fdc forms packet and filing fee 0.2 Smith, Michael P. 6/20/2017 Telephone call with Client re: F/U on FDC forms and filing fee payment 0.2 Smith, Michael P. 6/20/2017 Confirmation of paid $400 Filing Fee Via LawPay 0.1 Smith, Michael P. 6/20/2017 FDC Prospect packet returned via Right Sig / reviewed for completion 0.3 Smith, Michael P. 7/5/2017 Draft complaint, proposed summons, civil cover sheet, and letter to clerk 0.7 Wicklund, Edward A. 7/6/2017 Federal Court -Accept Letter - New FDC Filing 0.3 Smith, Michael P. 7/6/2017 Review summons issued (notice only) 0.1 Wicklund, Edward A. 7/6/2017 Draft motion for pro hac vice admission 0 Wicklund, Edward A. 7/11/2017 Received and processed Issued Summons via USPS 0.2 Wicklund, Edward A. 7/11/2017 Review order granting pro hac vice admission EAW 0 Wicklund, Edward A. 7/20/2017 Federal Court-Service of Process- Prepare Service packets USAO, OGC, AG 0.6 Callahan, Michelle 7/27/2017 Review Notice of appearance Richard L. Pomeroy o/b/o Nancy A. Berryhill 0.1 Wicklund, Edward A. 8/2/2017 Review scheduling order, await answer for calendaring 0.2 Wicklund, Edward A. 8/2/2017 Note docket annotation and event filing requirement 0.1 Wicklund, Edward A. 8/2/2017 Combine and file proof of service via CM / ECF 0.2 Callahan, Michelle 8/2/2017 Review Summons returned executed, update answer due date 0.1 Wicklund, Edward A. 8/8/2017 Email with Client re: Status update and address change 0.2 Smith, Michael P. 9/8/2017 Review notice of appearance Kathryn Ann Miller o/b/o Nancy A. Berryhill 0.1 Wicklund, Edward A. 9/25/2017 Review answer to complaint 0.1 Wicklund, Edward A. 9/26/2017 Combine, OCR, and Live bookmark federal court transcript (1381 pages) 1.4 Gifford, Kyrsten 9/29/2017 Preliminary review of transcript - assign Attorney writer 0.5 Wicklund, Edward A. 10/16/2017 Review certified administrative record, take notes 5.5 Haasz, Amanda 10/17/2017 Continue reviewing CAR, take notes, organize facts 3.1 Haasz, Amanda 10/19/2017 Draft procedural section, draftng facts 3 Haasz, Amanda 10/23/2017 Research issues and drafting argument 2.8 Haasz, Amanda 10/23/2017 Peer Attorney review draft brief suggest edits 0.7 Burkett, Marisa 10/23/2017 Implement suggested edits, finalize and file brief (n/c for filing) 0.5 Haasz, Amanda 11/9/2017 Review notice of substitution by Nancy A. Berryhill 0.1 Wicklund, Edward A. 11/22/2017 Review response in opposition to remand (7 pages) 0.2 Wicklund, Edward A. 37.30  (Type = Time) and (Client = Ms. Deidre Leanora Duron)    Date  Subject Hours Timekeeper 11/22/2017 Assign Attorney writer to access/write reply brief 0.2 Wicklund, Edward A. 11/27/2017 Correspondence to Client re: Federal Court - Fully Briefed Case Docs to Client 0.3 Moira Deutch 12/4/2017 Review briefing 1 Mcgarry, Matthew 12/4/2017 Draft reply brief 3.7 Mcgarry, Matthew 12/4/2017 Telephone call with Client re: Briefing questions, explained process 0.2 Graser, Jonnah 12/5/2017 Continue drafting reply brief 2 Mcgarry, Matthew 12/6/2017 Review reply brief, checking merits and record for support/consistency 0.6 Burkett, Marisa 12/6/2017 Implement suggested edits, finalize and file reply brief (n/c for file) 0.3 Mcgarry, Matthew 2/16/2018 Review order granting motion to remand (18 pages) 0.6 Wicklund, Edward A. 2/19/2018 Telephone conf. w/ client re: Remand 0.1 Gifford, Kyrsten 2/20/2018 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 2/20/2018 Federal Court-Remand Referral back to hearing and AC depts. 0.2 Graser, Jonnah 3/1/2018 Review judgment in favor of Deidre Duron 0.1 Wicklund, Edward A. 5/11/2018 EAJA Preparation 1.5 Persse, Shannon 5/13/2018 Review EAJA Timeslips, Finalize EAJA Narrative 0.5 Wicklund, Edward A. 5/15/2018 Finalize EAJA Narrative, Time Slips, Exhibits, File per Local Rules 0.9 Persse, Shannon 37.30  (Type = Time) and (Client = Ms. Deidre Leanora Duron)   

Exhibit B Attorney Time

Exhibit B Ledger Duron, Deidre Leanora Date  Subject Hours Timekeeper 5/18/2017 Review decisions and evidence to determine whether to appeal case 1 Wicklund, Edward A. 7/5/2017 Draft complaint, proposed summons, civil cover sheet, and letter to clerk 0.7 Wicklund, Edward A. 7/6/2017 Review summons issued (notice only) 0.1 Wicklund, Edward A. 7/6/2017 Draft motion for pro hac vice admission 0 Wicklund, Edward A. 7/11/2017 Received and processed Issued Summons via USPS 0.2 Wicklund, Edward A. 7/11/2017 Review order granting pro hac vice admission EAW 0 Wicklund, Edward A. 7/27/2017 Review Notice of appearance Richard L. Pomeroy o/b/o Nancy A. Berryhill 0.1 Wicklund, Edward A. 8/2/2017 Review scheduling order, await answer for calendaring 0.2 Wicklund, Edward A. 8/2/2017 Note docket annotation and event filing requirement 0.1 Wicklund, Edward A. 8/2/2017 Review Summons returned executed, update answer due date 0.1 Wicklund, Edward A. 9/8/2017 Review notice of appearance Kathryn Ann Miller o/b/o Nancy A. Berryhill 0.1 Wicklund, Edward A. 9/25/2017 Review answer to complaint 0.1 Wicklund, Edward A. 9/29/2017 Preliminary review of transcript - assign Attorney writer 0.5 Wicklund, Edward A. 10/16/2017 Review certified administrative record, take notes 5.5 Haasz, Amanda 10/17/2017 Continue reviewing CAR, take notes, organize facts 3.1 Haasz, Amanda 10/19/2017 Draft procedural section, draftng facts 3 Haasz, Amanda 10/23/2017 Research issues and drafting argument 2.8 Haasz, Amanda 10/23/2017 Peer Attorney review draft brief suggest edits 0.7 Burkett, Marisa 10/23/2017 Implement suggested edits, finalize and file brief (n/c for filing) 0.5 Haasz, Amanda 11/9/2017 Review notice of substitution by Nancy A. Berryhill 0.1 Wicklund, Edward A. 11/22/2017 Review response in opposition to remand (7 pages) 0.2 Wicklund, Edward A. 11/22/2017 Assign Attorney writer to access/write reply brief 0.2 Wicklund, Edward A. 12/6/2017 Review reply brief, checking merits and record for support/consistency 0.6 Burkett, Marisa 2/16/2018 Review order granting motion to remand (18 pages) 0.6 Wicklund, Edward A. 3/1/2018 Review judgment in favor of Deidre Duron 0.1 Wicklund, Edward A. 5/13/2018 Review EAJA Timeslips, Finalize EAJA Narrative 0.5 Wicklund, Edward A. 21.10  (Type = Time) and (Client = Ms. Deidre Leanora Duron) and ((Timekeeper = Haasz, Amanda) or (Timekeeper = Burkett, Marisa) or (Ti...   

Exhibit C Law Clerk Time

Exhibit C Ledger Duron, Deidre Leanora Date  Subject Hours Timekeeper 12/4/2017 Review briefing 1 Mcgarry, Matthew 12/4/2017 Draft reply brief 3.7 Mcgarry, Matthew 12/5/2017 Continue drafting reply brief 2 Mcgarry, Matthew 12/6/2017 Implement suggested edits, finalize and file reply brief (n/c for file) 0.3 Mcgarry, Matthew 7.00  (Type = Time) and (Client = Ms. Deidre Leanora Duron) and (Timekeeper = Mcgarry, Matthew)   

Exhibit D Paralegal Time

Exhibit D Ledger Duron, Deidre Leanora Date  Subject Hours Timekeeper 5/16/2017 Files received and processed from referral source for attorney review 0.6 Gifford, Kyrsten 5/16/2017 Correspondence to Client re: Referral acknowledgment letter 0.2 Gifford, Kyrsten 5/16/2017 Telephone call with Client re: Debt conference call, explained process 0.4 Gifford, Kyrsten 5/25/2017 Telephone call to Client re: assessment of IFP need 0.3 Graser, Jonnah 5/26/2017 Telephone call w/ Client re: acceptance of case and IFP assessment (supervisor) 0 Smith, Michael P. 5/30/2017 FDC prospect packet prepared for Client completion 0.6 Smith, Michael P. 5/30/2017 FDC Prospect packet sent to Client via Right Signature 0.2 Smith, Michael P. 6/5/2017 Email to Client re: Follow up on fdc forms packet and filing fee 0.2 Smith, Michael P. 6/20/2017 Telephone call with Client re: F/U on FDC forms and filing fee payment 0.2 Smith, Michael P. 6/20/2017 Confirmation of paid $400 Filing Fee Via LawPay 0.1 Smith, Michael P. 6/20/2017 FDC Prospect packet returned via Right Sig / reviewed for completion 0.3 Smith, Michael P. 7/6/2017 Federal Court -Accept Letter - New FDC Filing 0.3 Smith, Michael P. 7/20/2017 Federal Court-Service of Process- Prepare Service packets USAO, OGC, AG 0.6 Callahan, Michelle 8/2/2017 Combine and file proof of service via CM / ECF 0.2 Callahan, Michelle 8/8/2017 Email with Client re: Status update and address change 0.2 Smith, Michael P. 9/26/2017 Combine, OCR, and Live bookmark federal court transcript (1381 pages) 1.4 Gifford, Kyrsten 11/27/2017 Correspondence to Client re: Federal Court - Fully Briefed Case Docs to Client 0.3 Moira Deutch 12/4/2017 Telephone call with Client re: Briefing questions, explained process 0.2 Graser, Jonnah 2/19/2018 Telephone conf. w/ client re: Remand 0.1 Gifford, Kyrsten 2/20/2018 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 2/20/2018 Federal Court-Remand Referral back to hearing and AC depts. 0.2 Graser, Jonnah 5/11/2018 EAJA Preparation 1.5 Persse, Shannon 5/15/2018 Finalize EAJA Narrative, Time Slips, Exhibits, File per Local Rules 0.9 Persse, Shannon 9.20  (Client = Ms. Deidre Leanora Duron) and (Type = Time) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Gifford, Kyrste...   

Exhibit E Expenses

Exhibit E Ledger Duron, Deidre Leanora Date  Subject Amount Timekeeper 7/20/2017 Certified Mail Expense re: Federal Court-Service of Process to Defendant's $17.67 Callahan, Michelle $17.67  ((Timekeeper = Callahan, Michelle) or (Timekeeper = Gifford, Kyrsten) or (Timekeeper = Graser, Jonnah) or (Timekeeper = Perss...   

Exhibit F Costs

Exhibit F Ledger Duron, Deidre Leanora Date Amount Visitor · Subject Fed Court Filing Fee Paid Slican Fire Timekeeper $ 400. 00 Wicklund, Edward A. 7 / 5 / 2017 $ 400. 00 Client = Ms. Deidre Leanora Duron) and (Type = Cost) and (Category = FC Filing Fee Payment to FC)

Exhibit G Fee Agreement

Exhibit G FEE AGREEMENT - FEDERAL COURT SOCIAL SECURITY APPEAL 1. SCOPE OF REPRESENTATION: I hereby employ the attorneys at Olinsky Law Group ("OLG" or "my federal court attorney") to represent me during a federal court review of my Social Security case. The scope of representation consists of appealing a final decision that I am not disabled, which was made by the Social Security Administration ("SSA"), to a United States District Court. Representation may also include appealing an unfavorable decision from a United States District Court to a United States Court of Appeals; however an appeal to a United States Court of Appeals is at the discretion of my federal court attorney. References to "federal court" in this agreement will include representation before a United States Court of Appeals if my case is appealed to that court. 2. ATTORNEY'S FEE: I understand that if my federal court attorney wins my case in federal court, which means that either my case is remanded to the SSA for further proceedings pursuant to sentence 4 or sentence 6 of § 205(g) of the Social Security Act and/or the federal court enters a directed finding that I am disabled, my federal court attorney will petition for an award of attorney fees for work performed at the federal court(s) pursuant to the Equal Access to Justice Act ("EAJA"). I understand that an EAJA award is paid by the government, does not come from my back benefits, and any award must be approved by the federal court. I hereby assign any court-awarded EAJA attorney fees to my federal court attorney. I agree that any such payment belongs to my federal court attorney. I authorize my federal court attorney to settle the amount of any EAJA fee using his or her professional judgment. I agree to cooperate in any way that I can so that my federal court attorney's full fee is authorized. If my federal court attorney receives an EAJA check made payable to me, I hereby explicitly give authority to my federal attorney to endorse the check with my name and deposit it in my federal court attorney's general office account. I hereby state that my net worth is less than $2,000,000.00. I understand that my federal court attorney may receive the EAJA award as his or her sole compensation for representing me in court. However, I understand that my federal court attorney also has the right to ask the court to award any remaining balance of 25% of my past-due benefits ("406(b) fees") for representing me in federal court. My federal court attorney has this right if the representative, who represents me during remand proceedings, does not collect the full 25% of my past-due benefits during a remand proceeding; and also if (1) my case is remanded pursuant to sentence 6 of § 205(g) of the Social Security Act; or (2) my case is remanded pursuant to sentence 4 of § 205(g) of the Social Security Act and my federal court attorney is unable to collect the authorized EAJA award due to any unpaid federal debt that I may have at the conclusion of the federal case; or if I failed to effectively assign the EAJA award to my federal court attorney; or at the discretion of my federal court attorney. I understand that if the court awards my federal court attorney a fee out of my past-due benefits and also awards an EAJA fee for that same work, my federal court attorney must refund the smaller fee to me. I understand that the SSA will withhold my past-due benefits and will send any approved fee to my federal court attorney. If SSA, through error, fails to withhold my federal court attorney's fee and pays the legal fee to me by mistake (which sometimes happens), I will pay my federal court attorney promptly from the back benefits I receive. If my retroactive payment is released in installments, I agree that I will pay the entire authorized federal court attorney's fee from the first installment. I understand that the total fee could amount to many thousands of dollars. I understand that my federal court attorney may seek the maximum fee this contract allows under the law. My federal court attorney does not promise to minimize either the EAJA or 406(b) fees he or she seeks and/or receives. I understand that if my case loses in federal court, which means that the federal court affirms the decision of the SSA that I am not disabled, my federal court attorney is not entitled to a fee for his or her time spent representing me in federal court. 3. CONSENT TO EXCHANGE OF INFORMATION: I agree that the OLG and any representative(s) that represented me before SSA for the case that is being appealed to federal court may share (1) my contact information, (2) information regarding my case in federal court, including documents filed in court, (3) my SSA exhibit file including all my medical records, and (4) information regarding the status of any remand proceedings. I agree that if a federal court remands my case, the OLG may refer my case to Myler Disability* for possible representation on remand. I agree that the OLG may share (1) my contact information, (2) information regarding my federal court case, including documents filed in court, (3) my SSA exhibit file including all my medical records, and (4) information regarding the status of any remand proceedings, with Myler Disability*. I acknowledge that the United States District Court will issue a written decision on my case, and that decision is a matter of public record which may be published on the internet by case reporting services. 4. TERMINATION OF AGREEMENT AND CONSENT TO PROVIDE UPDATED CONTACT INFORMATION: This agreement terminates at the option of my federal court attorney if we lose at the United States District Court. My federal court attorney will mail me a copy of the court's final decision at the last address I provide my federal court attorney. I agree to inform my federal court attorney each time I change my mailing address and/or telephone number. 5. I HAVE NOT BEEN PROMISED THAT I WILL WIN: My federal court attorney has not promised that I will win my case. I recognize that I may lose my case. I am aware that a federal court may take several years to decide my case. This agreement supersedes and replaces any previous fee agreement I may have signed with any attorney for representation at Federal Court. It does not supersede or replace any fee agreement made for representation before the Social Security Administration. Dated: May 30, 2017 Signature: __________________________________ Claimant Name: Ms. Deidre Leanora Duron Claimant Social Security Number: Dated: __________ Signature: ___________________________________ Howard D. Olinsky, Esq.

Exhibit H Affirmation and Waiver of Direct Payment of EAJA Fees

Exhibit H UNITED STATES DISTRICT COURT DISTRICT OF ALASKA ({[ERROR]} DIVISION) -------------------------------------------------------------- MS. DEIDRE LEANORA DURON, AFFIRMATION AND WAIVER OF DIRECT PAYMENT Plaintiff, OF EAJA FEES v. Civil Action No.: _________________ NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------------------------- Ms. Deidre Leanora Duron, 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 May 30, 2017. __________________________ Ms. Deidre Leanora Duron Plaintiff

Memorandum in Support

EDWARD A. WICKLUND, Esq. New York Bar # 5027818 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA DEIDRE LEANORA DURON, Plaintiff, Civil Action No. 3:17-cv-00147-HRH v- NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. ----------------------------------------------------------- Memorandum in Support of Plaintiff's Petition for Counsel Fee Allowance Under Equal Access to Justice Act 1. This is a memorandum in support of a petition for an award of Counsel Fees under the Equal Access to Justice Act, 28 USCS § 2412 "EAJA." 2. An EAJA award is available to a "prevailing party" in a case against the Federal Government, including Social Security cases, in the following instances: (a) When and if the plaintiff actually "prevails"; (b) The Government's position in litigation is "not substantially justified"; (c) Plaintiff is a party whose net assets are worth less than two million dollars; and (d) The case has concluded with a "final order" which is non-appealable, or will not be appealed. 3. Addressing these elements in reverse order, it is clear that the Plaintiff has met the burden necessary to receive EAJA fees. (a) Plaintiff's net worth did not exceed $2,000,000.00 when this action was filed. (b) After service of the summons and complaint and submission of a brief by both parties, Chief District Judge Hon. Russell Holland signed an Order on February 14, 2018 remanding this matter to the Commissioner for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g). (c) Judgment was entered on February 28, 2018. The Judgment has not been appealed. (d) Plaintiff has prevailed because the District Court remanded the case under sentence four of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292 (U.S. 1993) 4. The commissioner was not substantially justified. As the U. S. Supreme Court has held, "the required 'not substantially justified' allegation imposes no proof burden on the fee applicant. It is, as its text conveys, nothing more than an allegation or pleading requirement. The burden of establishing 'that the position of the United States was substantially justified' … must be shouldered by the Government." Scarborough v. Principi, 541 U. S. 401, 414 (2004). While the fee applicant such as Plaintiff is required to "show" three of the four elements—prevailing party status, financial eligibility, and amount sought—Plaintiff need only "to allege" that the position of the government is not substantially justified. Id. WHEREFORE, because all four elements of an allowable application for EAJA fees have been proven or alleged, petitioner humbly prays that the Court issue an order: 1. Awarding an Equal Access to Justice Act Counsel Fee for $5,947.27; and 2. If the Plaintiff has no debt registered with the Department of Treasury subject to offset that the fees be made payable to the attorney; and 3. Awarding expenses in the amount of $17.67; and 4. Awarding costs in the amount of $400.00. I declare under the penalty of perjury that the foregoing is true and correct. Executed this May 15, 2018 Respectfully submitted, /s/ Edward A. Wicklund Edward A. Wicklund, Esq. New York Bar # 5027818 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Email: fedctgroup@windisability.com To: BRYAN SCHRODER Acting United States Attorney RICHARD L. POMEROY Assistant United States Attorney Federal Bldg & U.S. Courthouse 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 Telephone: (907) 271-5071 Fax: (907) 271-2344 Email: richard.pomeroy@usdoj.gov JEFFREY E. STAPLES Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3706 Fax: (206) 615-2531 Email: jeff.staples@ssa.gov Of Attorneys for Defendant

Certificate of Service

EDWARD A. WICKLUND, Esq. New York No. 5027818 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedct@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA DEIDRE LEANORA DURON, Plaintiff, Civil Action No. 3:17-cv-00147-HRH v- NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. ----------------------------------------------------------- CERTIFICATE OF SERVICE I certify that I have electronically moved for EAJA fees with the Clerk of the District Court using the CM/ECF system, which sent notification of such filing to: To: BRYAN SCHRODER Acting United States Attorney RICHARD L. POMEROY Assistant United States Attorney Federal Bldg & U.S. Courthouse 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 Telephone: (907) 271-5071 Fax: (907) 271-2344 Email: richard.pomeroy@usdoj.gov JEFFREY E. STAPLES Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3706 Fax: (206) 615-2531 Email: jeff.staples@ssa.gov Of Attorneys for Defendant May 15, 2018 /s/ Edward A. Wicklund Edward A. Wicklund, Esq.

Response in Opposition to Motion

1 BRYAN SCHRODER 2 United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 JEFFREY E. STAPLES Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone: (206) 615-3706 Fax: (206) 615-2531 11 jeff.staples@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 DEIDRE LEANORA DURON, Case No. 3:17-cv-00147-HRH 16 Plaintiff, 17 vs. DEFENDANT'S RESPONSE TO 18 PLAINTIFF'S MOTION FOR ATTORNEY NANCY A. BERRYHILL, FEES 19 Acting Commissioner of Social Security, 20 Defendant. 21 INTRODUCTION 22 The Commissioner opposes Plaintiff's motion for fees under the Equal Access to Justice 23 Page 1 DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR ATTORNEY FEES - [3:17-cv-00147-HRH] 1 Act (EAJA) (ECF No. 18) because the government's position was substantially justified. See 28 2 U.S.C. § 2412. The Commissioner asks the Court to deny Plaintiff's motion for attorney fees. 3 ARGUMENT 4 A prevailing party is not entitled to fees under the EAJA if the Court finds that the United 5 States' position was "substantially justified." 28 U.S.C. § 2412(d)(1)(A). A substantially justified 6 position is one that "a reasonable person could think is correct, that is, if it has a reasonable basis 7 in law and fact." Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988). The position does not need 8 to be "justified to a high degree." Id. at 565. "Indeed it typically takes something more egregious 9 than just a run-of-the-mill error in articulation to make the commissioner's position unjustified." 10 Bassett v. Astrue, 641 F.3d 857, 860 (7th Cir. 2011). Rather, the Commissioner's position is 11 substantially justified so long as "some evidence" supports it. Williams v. Bowen, 966 F.2d 1259, 12 1261 (9th Cir. 1991). 13 Moreover, "this circuit has never stated that every time this court reverses and remands the 14 ALJ's decision for lack of substantial evidence the claimant should be awarded attorney's fees." 15 Campbell v. Colvin, 736 F.3d 867, 869 (9th Cir. 2013) (emphasis original). And the fact that a 16 claimant prevails in challenging an ALJ's decision "does not raise a presumption that [the 17 government's] position was not substantially justified." Kali v. Bowen, 854 F.2d 329, 334 (9th 18 Cir. 1988). Instead, "success on the merits is not dispositive of an EAJA application, and [courts] 19 must assess the justification of the Commissioner's position based on its reasonableness before 20 the district court made its decision on the merits." Decker v. Berryhill, 856 F.3d 659, 664 (9th 21 Cir. 2017) (citations omitted, emphasis added). 22 23 Page 2 DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR ATTORNEY FEES - [3:17-cv-00147-HRH] 1 Here, the Court found that it "was error for the ALJ to reject Dr. Kropp's opinion[…] 2 without fully and fairly developing the record as to the effect of plaintiff's pain upon her ability to 3 sustain full-time work." ECF No. 16 at 17. The Court identified no other errors. The 4 Commissioner's position on this issue had a reasonable basis in law and fact and was substantially 5 justified. 6 The ALJ rejected Dr. Kropp's opinion because there was "simply no objective evidence to 7 support the extreme limitations assessed by Dr. Kropp." Tr. 478. This finding had a reasonable 8 basis in law because "an ALJ need not accept the opinion of a doctor if that opinion is brief, 9 conclusory, and inadequately supported by clinical findings." Bayliss v. Barnhart, 427 F.3d 1211, 10 1216 (9th Cir. 2005). The ALJ concluded that Dr. Kropp's opinion had no basis "other than the 11 claimant's complaints of pain." Tr. 478. This finding also had a reasonable basis in law, because 12 "[a]n ALJ may reject a treating physician's opinion if it is based 'to a large extent' on a claimant's 13 self-reports that have been properly discounted as incredible." Tommasetti v. Astrue, 533 F.3d 14 1035, 1041 (9th Cir. 2008) (citations omitted). The Commissioner's position on Dr. Kropp's 15 opinion had a reasonable basis in law. 16 The Commissioner's position also had a reasonable basis in fact. Dr. Kropp did not 17 identify any objective evidence supporting his opinion. Tr. 297-98. Moreover, the Court 18 expressly concluded that Dr. Kropp's opinion "was based on plaintiff's pain complaints." ECF 19 No. 16 at 17. The ALJ found that Plaintiff's allegations, however, were not fully credible for a 20 variety of reasons that Plaintiff did not challenge and to which the Court ascribed no error. Tr. 21 472-75. A reasonable person could have found that Dr. Kropp based his opinion on Plaintiff's 22 unreliable subjective complaints and rejected it accordingly. 23 Page 3 DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR ATTORNEY FEES - [3:17-cv-00147-HRH] 1 Nevertheless, the Court found that the ALJ should have further developed the record. 2 ALJs have a duty to develop the record, but "only when there is ambiguous evidence or when the 3 record is inadequate to allow for proper evaluation of the evidence." Mayes v. Massanari, 276 4 F.3d 453, 459-60 (9th Cir. 2001). Here, the Court held that the record was inadequate because it 5 "lacks functional capacity evidence which may or may not support plaintiff's description of her 6 limitations due to pain." ECF No. 16 at 16. However, a reasonable mind could also have reached 7 the opposite conclusion—the ALJ discussed many functional capacity opinions regarding 8 Plaintiff's physical limitations, including opinions from Dr. Lebeau, Dr. Harter, Nurse Thompson, 9 Dr. Kropp, Dr. Klimow, Dr. Amand, and Dr. Vestal. Tr. 476-78. The ALJ did not give full 10 weight to these opinions for a variety of reasons, but that does not necessarily mean that the record 11 was so inadequate as to require further development, particularly given the fact that Plaintiff's 12 lack of credibility is undisputed. On the record here, the Commissioner's position had a 13 reasonable basis in law and fact and was substantially justified. 14 CONCLUSION 15 Based on the foregoing, the Court should find the Commissioner's position was 16 substantially justified and deny Plaintiff's motion for fees under the EAJA. 17 18 19 20 21 22 23 Page 4 DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR ATTORNEY FEES - [3:17-cv-00147-HRH] 1 DATED this 24th day of May 2018. 2 Respectfully submitted, 3 Bryan Schroder 4 United States Attorney 5 RICHARD L. POMEROY Assistant United States Attorney 6 MATHEW W. PILE 7 Acting Regional Chief Counsel, Seattle, Region X 8 s/Jeffrey E. Staples JEFFREY E. STAPLES 9 Special Assistant United States Attorney Office of the General Counsel 10 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 11 Seattle, WA 98104-7075 Telephone: (206) 615-3706 12 Fax: (206) 615-2531 jeff.staples@ssa.gov 13 14 15 CERTIFICATE OF SERVICE 16 I hereby certify that the foregoing Defendant's Response to Plaintiff's Motion for Attorney 17 Fees was filed with the Clerk of the Court on May 24, 2018, using the CM/ECF system, which 18 will send notification of such filing to the following: Edward A. Wicklund. 19 s/Jeffrey E. Staples 20 JEFFREY E. STAPLES Special Assistant U.S. Attorney 21 Office of the General Counsel 22 23 Page 5 DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR ATTORNEY FEES - [3:17-cv-00147-HRH]

Order on Motion for Attorney Fees

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA DEIDRE LEANORA DURON,)) Plaintiff,)) vs.)) NANCY A. BERRYHILL, acting) Commissioner of Social Security,)) No. 3:17-cv-0147-HRH Defendant.) _______________________________________) ORDER Motion for Attorney's Fees Plaintiff moves for an award of attorney's fees, costs, and expenses in the amount of $6,364.94 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.1 This motion is opposed.2 Oral argument has not been requested and is not deemed necessary. "Under EAJA, a prevailing party in a suit against the government is entitled to fees in certain circumstances unless the government's position was 'substantially justified.'" Le v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008) (quoting United States v. Marolf, 277 F.3d 1156, 1160 (9th Cir. 2002)). "To meet the 'substantially justified' standard, the government must advance a position that is 'justified in substance or in the main—that is, justified to a 1 Docket No. 18. 2 Docket No. 20. -1- degree that could satisfy a reasonable person.'" Id. (quoting Marolf, 277 F.3d at 1161). "Put differently, the government's position must have a 'reasonable basis both in law and fact.'" Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). "The 'position of the United States' includes both the government's litigation position and the underlying agency action giving rise to the civil action." Id. In the social security context that means that the court first "look[s] at the decision of the ALJ to determine whether the government's position in the underlying action was substantially justified." Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013). If "the ALJ's decision was not substantially justified, the court. . . need not address whether the government's litigation position was substantially justified." Id. The court held that the ALJ erred in rejecting the opinion of Dr. Kropp, "which was based on plaintiff's pain complaints, complaints that were not disputed by either Dr. Lebeau or Dr. Harder, without fully and fairly developing the record as to the effect of plaintiff's pain upon her ability to sustain full-time work."3 "[W]hen the government violates its own regulations, fails to acknowledge settled circuit case law, or fails to adequately develop the record, its position is not substantially justified." Kirk v. Berryhill, 244 F. Supp. 3d 1077, 1081 (E.D. Cal. 2017) (emphasis added). Because the ALJ failed to adequately develop the record as to plaintiff's functional capacity, the government's position was not substantially 3 Order at 17, Docket No. 16. -2- justified in this case. Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d), plaintiff is awarded attorney fees, expenses, and costs in the total amount of Six Thousand Three Hundred Sixty- Four Dollars and Ninety-Four Cents ($6,364.94), broken down as follows: (1) Plaintiff is awarded $5,947.27 for paralegal, law clerk and attorney's fees under 28 U.S.C. § 2412(d); (2) Plaintiff is awarded $17.67 in expenses for certified mail for service of Summons and Complaint; and (3) Plaintiff is awarded $400.00 in costs for reimbursement for the filing fee to initiate this civil action. If the U.S. Department of Treasury determines that plaintiff's EAJA fees, expenses, and costs are not subject to offset allowed under the Department of Treasury's Offset Program (TOPS), then the check for EAJA fees, expenses, and costs shall be made payable to plaintiff's attorney, Edward A. Wicklund. Whether the check is made payable to plaintiff or to Edward A. Wicklund, the check shall be mailed to Edward A. Wicklund at the following address: 300 South State Street - Suite 420 Syracuse, NY 13202 DATED at Anchorage, Alaska, this 5th day of June, 2018. /s/ H. Russel Holland United States District Judge -3-

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Description
1
07/05/2017
COMPLAINT against Nancy A. Berryhill (Filing fee $ 400. Receipt # 08453G), filed by Deidre Leanora Duron.
1
Exhibit A
1 Attachment
2
07/06/2017
Civil Cover Sheet
07/06/2017
Summons Issued as to Nancy A. Berryhill, U.S. Attorney and U.S. Attorney General (Text entry; no document attached.)
3
07/05/2017
Unissued summons re Defendant Nancy Berryhill
1
Unissued Summons re Defendant US Attorney General
2
Unissued Summons re Defendant US Attorney
2 Attachments
4
07/06/2017
MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Edward A. Wicklund. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2357588.) by Deidre Leanora Duron.
1
Certificate of Good Standing
1 Attachment
5
07/10/2017
ORDER granting [4] Motion for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney.
6
07/26/2017
NOTICE of Appearance by Richard L. Pomeroy on behalf of Nancy A. Berryhill
7
08/01/2017
SOCIAL SECURITY SCHEDULING ORDER: Agency record due 60 days after defendant's initial appearance. Opening brief due 30 days after agency record is filed. Answering brief due 30 days after opening brief is filed. Reply brief is due 14 days after Defendant's brief. Signed by Judge H. Russel Holland on 8/1/17.
08/01/2017
Docket Annotation: For the purpose of tracking the briefing as ordered at docket 7, when filing the Opening Brief the attorney shall file the document using the event Motion Miscellaneous Relief and text in the relief being sought. Responsive filings should be filed using the event Response in Opposition to Motion or Response to Motion (Non-Opposition). The reply, if any, shall be filed using the event Reply to Response to Motion. (Text entry; no document attached.)
8
08/02/2017
SUMMONS Returned Executed by Deidre Leanora Duron. Nancy A. Berryhill served on 7/26/2017, answer due 9/25/2017.
9
09/07/2017
NOTICE of Appearance by Kathryn Ann Miller on behalf of Nancy A. Berryhill
10
09/22/2017
ANSWER to [1] Complaint by Nancy A. Berryhill.
11
09/22/2017
Notice of Lodging Administrative Record
1
Certification Page 08-28-2017
2
Court Transcript Index 08-28-2017
3
Documents Related to Administrative Process Including Transcript of Oral Hearin
4
Payment Documents and Decisions 03-21-2015
5
Jurisdictional Documents and Notices 03-21-2015
6
Non Disability Related Development 03-21-2015
7
Disability Related Development 03-21-2015
8
Medical Records 03-21-2015 Part 1
9
Medical Records 03-21-2015 Part 2
10
Medical Records 03-21-2015 Part 3
11
Documents Related to Administrative Process Including Transcript of Oral Hearin
12
Payment Documents and Decisions 08-28-2017
13
Jurisdictional Documents and Notices 08-28-2017
14
Disability Related Development 08-28-2017
15
Medical Records 08-28-2017 Part 1
16
Medical Records 08-28-2017 Part 2
17
Medical Records 08-28-2017 Part 3
18
Medical Records 08-28-2017 Part 4
18 Attachments
12
10/23/2017
MOTION to Remand to Social Security by Deidre Leanora Duron.
13
11/09/2017
NOTICE of Substitution by Nancy A. Berryhill
14
11/22/2017
RESPONSE in Opposition re [12] MOTION to Remand to Social Security filed by Nancy A. Berryhill.
15
12/06/2017
Appellant's REPLY BRIEF by Deidre Leanora Duron.
16
02/14/2018
ORDER granting [12] Motion to Remand. This matter is remanded for further proceedings. Signed by Judge H. Russel Holland on 2/14/18.
17
02/28/2018
JUDGMENT: The Commissioner's decision is reversed and this matter is remanded back to the SSA for further proceedings. Signed by Judge H. Russel Holland on 2/28/18. (Additional attachment(s) added on 6/6/2018: # (1) Judgment with attorney fees and costs (redistrubuted))
18
05/15/2018
First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Deidre Leanora Duron.
1
Proposed Order
1 Attachment
19
05/15/2018
DECLARATION of Edward A. Wicklund, Esq. re [18] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Deidre Leanora Duron.
1
Exhibit A All Professional Time
2
Exhibit B Attorney Time
3
Exhibit C Law Clerk Time
4
Exhibit D Paralegal Time
5
Exhibit E Expenses
6
Exhibit F Costs
7
Exhibit G Fee Agreement
8
Exhibit H Affirmation and Waiver of Direct Payment of EAJA Fees
9
Memorandum in Support
10
Certificate of Service
10 Attachments
20
05/24/2018
Response in Opposition to Motion
21
06/05/2018
Order on Motion for Attorney Fees
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