Ebertz v. Berryhill
Court Docket Sheet

District of Alaska

3:2017-cv-00137 (akd)

COMPLAINT against Nancy A. Berryhill (Filing fee $400/receipt #ANC013295.), filed by Peter John Ebertz.

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 Tel: 315 701 5780 Fax: 315 701 5781 twicklund@windisability.com N e o o w N o Un A w N H H H UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA PETER JOHN EBERTZ, Soc. Sec. # XXX-XX-4722, Plaintiff, CASE NO. بيا NANCY A. BERRYHILL, acting Commissioner of Social Security, Defendant. N N N H H H H o o o COMPLAINT 42 U. S. C. E 405 (g), Social Security Disability Appeal Plaintiff, Peter John Ebertz, by his attorney, Edward A. Wicklund alleges as 22 23 follows: 1. The jurisdiction of this Court is invoked pursuant to 42 U. S. C. 405 (g) to review a decision of the Commissioner of Social Security denying N O) 6 27 28 Case 3: 17-cy-00137-TMB Document 1 Filed 06/19/17 Page 1 of 3 Plaintiff's application for Social Security Disability Insurance benefits for lack of disability. o o o N on A w NP 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 Appeals Council Notice dated April 17, 2017. (Exhibit A). 4. Plaintiff, whose social security number is XXX-XX-4722, resides in Bethel, Alaska, which is within this judicial district. P E 1 2 13 5. The Defendant, Nancy A. Berryhill, is the acting Commissioner of Social Security of the United States of America. 14 6. Plaintiff is disabled. PP H 7. The agency committed error of law by denying Appeals Council review of the decision by the Administrative Law Judge, or otherwise to deny P relief that was within the authority of the Appeals Council. H N N N O O-N 8. The conclusions and findings of fact of the Defendant are not 23 supported by substantial evidence and are contrary to law and regulation. WHEREFORE, Plaintiff prays that this Court: 24 25 1. Find that the Plaintiff is entitled to Social Security Disability 26 27 Insurance benefits under the provisions of the Social Security Act; or 2. Remand the case for a further hearing; 28 Case 3: 17-cv-00137-TMB Document 1 Filed 06/19/17 Page 2 of 3 3. Award attorney's fees under the Equal Access to Justice Act, 28 U. S. C. 2412, on the grounds that the Commissioner's action in this case was not o w Jon A w N P substantially justified; and 4. Order such other and further relief as the Court deems just and proper. Dated this 19th day of June, 2017. 10 11 2 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 H H H H H On A W 18 19 20 21 22 23 24 25 26 N N 7 28 Case 3: 17-cv-00137-TMB Document 1 Filed 06/19/17 Page 3 of 3

Exhibit A Notice of Appeals Council Action

EXHIBIT A Case 3: 17-cv-00137-TMB Document 1-1 Filed 06/19/17 Page 1 of 5 N SEO SOCIAL SECURITY ADMINISTRATION Refer to: TLC 14722 Office of Disability Adjudication and Review 5107 Leesburg Pike Falls Church, VA 22041-3255 Telephone: (877) 670-2722 Date: April 17, 2017 NOTICE OF APPEALS COUNCIL ACTION RECEIVED APR 21 2011 Mr. Peter John Ebertz IC LIBIDINIRII I II IN BIN ABIHIHI II I III I III O IBI This is about your request for review of the Administrative Law Judge's decision dated February 2, 2017. We Have Denied Your Request for Review We found no reason under our rules to review the Administrative Law Judge's decision Therefore, we have denied your request for review. This means that the Administrative Law Judge's decision is the final decision of the Commissioner of Social Security in your case. Rules We Applied We applied the laws, regulations, and rulings in effect as of the date we took this action. Under our rules, we will review your case for any of the following reasons: • The Administrative Law Judge appears to have abused his or her discretion. There is an error of law. Game 100ms.. Q01-anıtmos orze coa11 Mocos The decision is not supported by substantial evidence. • There is a broad policy or procedural issue that may affect the public interest. We receive new and material evidence and the decision is contrary to the weight of all the evidence now in the record. What We Considered In looking at your case, we considered the reasons you disagree with the decision and the Suspect Social Security Frand? Please visit http: lloig. 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-00137-TMB DocunsceNext Paged 06/19/17 Page 2 of 5 Peter John Ebertz Page 2 of 3 additional evidence listed on the enclosed Order of Appeals Council. We considered whether the Administrative Law Judge's actions, findings, or conclusion is contrary to the weight of the evidence currently of record. We found that this information does not provide a basis for changing the Administrative Law Judge's decision. KYou Dlaagree with Our Action If you disagree with our action, you may ask for court review of the Administrative Law Judge's decision by filing a civil action. f you do not ask for court review, the Administrative Law Judge's decision will be a final decision that can be changed only under special rules. How to Fle a Civil Action You may file a civil action (ask for court review) by filing a complaint in the United States District Court for the judicial district in which you live. The complaint should name the Commissioner of Social Security as the defendant and should include the Social Security number(s) shown at the top of this letter. You or your representative must deliver copies of your complaint and of the summons issued by the court to the U. S. Attorney for the judicial district where you file your complaint, as provided in rule 4 {i) of the Federal Rules of Civil Procedure. You or your representative must also send copies of the complaint and summons, by certified or registered mail, to the Social Security Administration's Office of the General Counsel that is responsible for the processing and handling of litigation in the particular judicial district in which the complaint is filed. The names, addresses, and jurisdictional responsibilities of these offices are published in the Federal Register (70 FR 73320, December 9, 2005), and are available on-line at the Social Security Administration's Internet site, http://policy. ssa.gov/poms. nsf/links/0203106020. You or your representative must also send copies of the complaint and summons, by certified or registered mail, to the Attorney General of the United States, Washington, DC 20530. Time To File a Civil Action • You have 60 days to file a civil action (ask for court review). The 60 days start the day after you receive this letter. We assume you received this letter 5 days after the date on it unless you show us that you did not receive it within the 5-day period. Case 3: 17-cv-00137-TMB See Next Page Document 1-1 Filed 06/19/17 Page 3 of 5 Peter John Ebertz Page 3 of 3 • If you cannot file for court review within 60 days, you may ask the Appeals Council to extend your time to file. You must have a good reason for waiting more than 60 days to Ask for court review. You must make the request in writing and give your reason(s) in the request. You must mail your request for more time to the Appeals Council at the address shown at the top of this notice. Please put the Social Security number(s) also shown at the top of this notice on your request. We will send you a letter telling you whether your request for more time has been granted. IIIIIIIIIIII DIHILIRMILIINII IUNI EDIH ILI About The Law The right to court review for claims under Title II (Social Security) is provided for in Section 205 (g) of the Social Security Act. This section is also Section 405 (g) of Title 42 of the United States Code. The right to court review for claims under Title XVI (Supplemental Security Income) is provided for in Section 1631 (CX3) of the Social Security Act. This section is also Section 1383 (c) of Title 42 of the United States Code. The rules on fili g civil actions are Rules 4 (c) and (1) in the Federal Rules of Civil Procedure. FYou Have Any Questions If you have any questions, you may call, write, or visit any Social Security office. If you do call or visit an office, please have this notice 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 99513-750S 0. 90 a 1000M-OJN7ano co1121 100148 HDae Isi Klara M. Haesers Klara M. Huesers Appeals Officer Enclosure: Order of Appeals Council cc: Bradford D. Myler P. O. Box 127 Lehi, UT 84043-0127 Case 3: 17-cv-00137-TMB Document 1-1 Filed 06/19/17 Page 4 of 5 Social Security Administration OFFICE OF DISABILITY ADJUDICATION AND REVIEW INI UIUI NIHIL HIM A RIRI ORDER OF APPEALS COUNCIL IN THE CASE OF Peter John Ebertz (Claimant) (Wage Earner) CLAIM FOR Period of Disability Disability Insurance Benefits 14722 (Social Security Number) The Appeals Council has received additional evidence, which it is making part of the record. That evidence consists of the following exhibits: Exhibit 14E Exhibit 21F Representative Brief, February 24, 2017, 1 page Medical Records from Dr. Max Rabinowitz, June 1, 2016 to March 28, 2017, 3 pages Date: April 17, 2017 Om a 10an IOM-amTao on 12an ONGI Case 3: 17-cv-00137-TMB Document 1-1 Filed 06/19/17 Page 5 of 5

Civil Cover Sheet.

JS 44 (Rev. 11 / 15) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM .) I. (a) PLAINTIFFS DEFENDANTS Peter John Ebertz Commissioner of SSA, Office of Regional Chief Counsel, Region X, 701 Fifth Avenue, Suite 2900 M / S 221A, Seattle, WA 98104 - 7075 (b) County of Residence of First Listed Plaintiff Bethel (EXCEPT INU.S. PLAINTIFF CASES) County of Residence of First Listed Defendant (INU.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. (c) Attorneys (Firm Name, Address, and Telephone Number) . Edward A. Wicklund, Esq ., Olinsky Law Group, 300 S. State St ., Ste. 420, Syracuse, NY 13202, (315) 701 - 5780 Attorneys (If Known) US Attorney for the District of Alaska, 222 W. 7th St ., Room 253, # 9, Anchorage, AK 99513 II. BASIS OF JURISDICTION (Place an " X " in One Box Only) | III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an " X " in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) O 1U.S. Government O 3 Federal Question PTF DEF PTF DEF Plaintiff (U. S. Government Not a Party) Citizen of This State 0 1 0 1 Incorporated or Principal Place 0 4 0 4 of Business In This State * 2U.S. Government O 4 Diversity Citizen of Another State O 2 0 2 Incorporated and Principal Place O 5 O 5 Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State Citizen or Subject of a O 3 0 3 Foreign Nation O 6 0 6 Foreign Country IV. NATURE OF SUIT (Place an " X " in One Box Only) CONTRACT TORTS FORFEITURE / PENALTY BANKRUPTCY OTHER STATUTES O 110 Insurance PERSONAL INJURY PERSONAL INJURY O 625 Drug Related Seizure O 422 Appeal 28 USC 158 O 375 False Claims Act O 120 Marine O 310 Airplane O 365 Personal Injury - of Property 21 USC 881 Jo 423 Withdrawal O 376 Qui Tam (31 USC O 130 Miller Act O 315 Airplane Product Product Liability O 690 Other 28 USC 157 3729 (a)) O 140 Negotiable Instrument Liability O 367 Health Carel O 400 State Reapportionment O 150 Recovery of Overpayment Jo 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS O 410 Antitrust & Enforcement of Judgment | Slander Personal Injury O 820 Copyrights O 430 Banks and Banking O 151 Medicare Act o 330 Federal Employers ' Product Liability O 830 Patent O 450 Commerce O 152 Recovery of Defaulted Liability O 368 Asbestos Personal O 840 Trademark O 460 Deportation Student Loans O 340 Marine Injury Product O 470 Racketeer Influenced and (Excludes Veterans) O 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations O 153 Recovery of Overpayment Liability PERSONAL PROPERTY O 710 Fair Labor Standards O 861 HIA (1395ff) O 480 Consumer Credit of Veteran's Benefits O 350 Motor Vehicle O 370 Other Fraud Act O 862 Black Lung (923) O 490 Cable / Sat TV O 160 Stockholders ' Suits O 355 Motor Vehicle O 371 Truth in Lending O 720 Labor / Management | 8 863 DIWC / DiwW (405 (g)) O 850 Securities / Commodities / O 190 Other Contract Product Liability O 380 Other Personal Relations O 864 SSID Title XVI Exchange O 195 Contract Product Liability O 360 Other Personal Property Damage O 740 Railway Labor Act O 865 RSI (405 (g)) O 890 Other Statutory Actions O 196 Franchise Injury O 385 Property Damage O 751 Family and Medical O 891 Agricultural Acts O 362 Personal Injury - Product Liability Leave Act o 893 Environmental Matters Medical Malpractice o 790 Other Labor Litigation O 895 Freedom of Information REAL PROPERTY CIVIL RIGHTS | PRISONER PETITIONS lo 791 Employee Retirement FEDERAL TAX SUITS Act O 210 Land Condemnation O 440 Other Civil Rights Habeas Corpus: Income Security Act | O 870 Taxes (U. S. Plaintiff O 896 Arbitration O 220 Foreclosure O 441 Voting O 463 Alien Detainee or Defendant) O 899 Administrative Procedure O 230 Rent Lease & Ejectment O 442 Employment O 510 Motions to Vacate O 871 IRS — Third Party Act / Review or Appeal of O 240 Torts to Land O 443 Housing Sentence 26 USC 7609 Agency Decision O 245 Tort Product Liability Accommodations O 530 General O 950 Constitutionality of O 290 All Other Real Property O 445 Amer. W / Disabilities - o 535 Death Penalty IMMIGRATION State Statutes Employment Other: O 462 Naturalization Application O 446 Amer. W / Disabilities - | O 540 Mandamus & Other o 465 Other Immigration Other O 550 Civil Rights Actions O 448 Education O 555 Prison Condition O 560 Civil Detainee - Conditions of Confinement V. ORIGIN (Place an " X " in One Box Only) Xi Original 02 Removed from O 3 Remanded from O 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict Proceeding State Court Appellate Court Reopened Another District Litigation (specify) Cite theU.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): VI. CAUSE OF ACTION Brief description of cause: Denial of Social Security Disability Insurance benefits VII. REQUESTED IN O CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23, F. R. Cv. P. JURY DEMAND: o Yes X No VIII. RELATED CASE (S) IF ANY (See instructions): JUDGE DOCKET NUMBER DATE SIGNATURE OF ATTORNEY OF RECORD 06 / 19 / 2017 / s / Edward A. Wicklund NY Bar No .: 5027818 FOR OFFICE USE ONLY RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE Cate USC 405 (g)

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 District of __________))) PETER JOHN EBERTZ) Plaintiff(s))) v. 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-00137-TMB Document 3 Filed 06/20/17 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 (l)) This summons for (name of individual and title, if any) was received by me on (date). u I personally served the summons on the individual at (place) on (date); or u 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 u 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 u I returned the summons unexecuted because; or u 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-00137-TMB Document 3 Filed 06/20/17 Page 2 of 2

Unissued Summons re Defendant U.S. Attorney General

AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District __________ of Alaska District of __________))) PETER JOHN EBERTZ) Plaintiff(s))) v. 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-00137-TMB Document 3-1 Filed 06/20/17 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 (l)) This summons for (name of individual and title, if any) was received by me on (date). u I personally served the summons on the individual at (place) on (date); or u 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 u 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 u I returned the summons unexecuted because; or u 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-00137-TMB Document 3-1 Filed 06/20/17 Page 2 of 2

Unissued Summons re Defendant U.S. Attorney

AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District __________ of Alaska District of __________))) PETER JOHN EBERTZ) Plaintiff(s))) v. Civil Action No.))) NANCY A. BERRYHILL, 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-00137-TMB Document 3-2 Filed 06/20/17 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 (l)) This summons for (name of individual and title, if any) was received by me on (date). u I personally served the summons on the individual at (place) on (date); or u 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 u 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 u I returned the summons unexecuted because; or u 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-00137-TMB Document 3-2 Filed 06/20/17 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--2350807.) by Peter John Ebertz.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA PETER JOHN EBERTZ Case No. 3: 17-cv-00137-TMB Plaintiff(s), 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 Peter John Ebertz, plaintiff (Name of party) (plaintiff/defendant) in the above-entitled cause pursuant to Rule 83. 1 (d) of the Local Rules for the United States District Court, District of Alaska. I hereby apply for permission to appear and participate as counsel WITHOUT ASSOCIATION of local counsel because [check whichever of the following boxes apply, if any]: I am a registered participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. D I have concurrently herewith submitted an application to the Clerk of the Court for registration as a participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. For the reasons set forth in the attached memorandum. Case 3: 17-cv-00137-TMB Document 4 filed 06/20/17 Page 1 of 4 OR I hereby designate, a member of the Bar of this court, (Name) who maintains an office at the place within the district, with whom the court and opposing counsel may readily communicate regarding conduct of this case. DATE: June 20, 20 (Signature) Edward A. Wicklund (Printed Name) (Address) (City/State/Zip) (Telephone Number) (e-mail address) Consent of Local Counsel * I hereby consent to the granting of the foregoing application. DATE: (Signature) (Printed Name) (Address) City, State, Zip) (Telephone) (* Member of the Bar of the United States District Court for the District of Alaska) Case 3: 17-cv-00137-TMB Document 4 Filed 06/20/17 Page 2 of 4 DECLARATION OF NON-ELIGIBLE ATTORNEY Full Name: Edward A. Wicklund Business Address: 300 S. South Street, Ste. 420, Syracuse, NY 13202 (Mailing/Street) (City, State, ZIP) Residence: 313 E. Willow Street, Apt. 519, Syracuse, NY 13203 (Mailing/Street) (City, State, ZIP) Business Telephone: 315-701-5780 e-mail address: twicklund@windisability.com Other Names/Aliases: N/A Jurisdictions to Which Admitted and year of Admission: See attached sheet (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) Are you the subject of any pending disciplinary proceeding in any jurisdiction to which admitted? Yes D 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 No 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. g1746, I hereby declare under penalty of perjury that the foregoing information is true, correct, and accurate. Dated: June 20, 2017 (Signature of Applicant) Case 3: 17-cv-00137-TMB Document 4 Filed 06/20/17 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-00137-TMB Document 4 Filed 06/2017 Page 4 of 4

Certificate of Good Standing

AO 136 (Rev. 10/13) Certificate of Good Standing UNITED STATES DISTRICT COURT for the Northern District of New York CERTIFICATE OF GOOD STANDING I, Lawrence K. Baerman, Clerk of this Court, certify that 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 on June 16, 2017 (Location) (Date) Lawrence K. Baerman CLERK DEPUTY CLERK Case 3:17-cv-00137-TMB Document 4-1 Filed 06/20/17 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 PETER J. EBERTZ Case No. 3:17-cv-00137 TMB 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-00137-TMB Document 6 Filed 07/14/17 Page 1 of 2 RESPECTFULLY SUBMITTED, on July 14, 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 14, 2017, a copy of the foregoing was served electronic to: Edward A. Wicklund, Esq. s/Richard L. Pomeroy 2 Case 3:17-cv-00137-TMB Document 6 Filed 07/14/17 Page 2 of 2

SOCIAL SECURITY SCHEDULING ORDER: agency record due 60 days after def initial appearance. 30 days after record is file opening brief due, answering brief due 30 days, reply brief due 14 days. If mot to remand is filed response due 14 days. Signed by Judge Timothy M. Burgess on 7/20/17.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA PETER JOHN EBERTZ, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. Case No.3:17-cv-00137-TMB 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-00137-TMB Document 7 Filed 07/20/17 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 20th day of July, 2017. s/TIMOTHY M. BURGESS UNITED STATES DISTRICT JUDGE Social Security Scheduling Order Page 2 of 2 Case 3:17-cv-00137-TMB Document 7 Filed 07/20/17 Page 2 of 2

SUMMONS Returned Executed by Peter John Ebertz. Nancy A. Berryhill served on 8/4/2017, answer due 10/3/2017.

Date Produced: 07/17/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0036 3631 42. Our records indicate that this item was delivered on 07/13/2017 at 11:36 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: Ebertz, P USAO Case 3:17-cv-00137-TMB Document 8 Filed 08/09/17 Page 2 of 6 Date Produced: 08/07/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0037 1810 66. Our records indicate that this item was delivered on 08/04/2017 at 11:09 a.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: Ebertz, P Reserve OGC Case 3:17-cv-00137-TMB Document 8 Filed 08/09/17 Page 4 of 6 Date Produced: 07/24/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0036 3632 34. Our records indicate that this item was delivered on 07/17/2017 at 04:36 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: Ebertz, P AG Case 3:17-cv-00137-TMB Document 8 Filed 08/09/17 Page 6 of 6

NOTICE of Appearance by Leisa A. Wolf on behalf of Nancy A. Berryhill

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 LEISA A. WOLF 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) 615-3621 Fax: (206) 615-2531 11 leisa.wolf@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 PETER JOHN EBERTZ, Case No. 3:17-cv-00137-TMB 16 Plaintiff, 17 DEFENDANT’S NOTICE vs. OF APPEARANCE 18 NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security1, 20 Defendant. 21 22 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting 23 Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security 24 Act, 42 U.S.C. § 405(g). Page 1 DEFENDANT’S NOTICE OF APPEARANCE-[3:17-cv-00137-TMB] Case 3:17-cv-00137-TMB Document 9 Filed 08/15/17 Page 1 of 3 1 PLEASE TAKE NOTICE that the Defendant in the above-entitled action, without waiving 2 any objection to, inter alia, service, venue, or jurisdiction, hereby gives Notice that the 3 Commissioner of Social Security will be represented by and through the attorney of record listed 4 below. 5 LEISA A. WOLF 6 Special Assistant United States Attorney Office of the General Counsel 7 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 8 Seattle, WA 98104-7075 Telephone: (206) 615-3621 9 Fax: (206) 615-2531 leisa.wolf@ssa.gov 10 You are advised that service of all further pleadings, notices, documents or other papers 11 herein, not filed electronically, may be made upon Defendant by serving the above-named 12 attorney at this address. DATED this 15th day of August 2017. 13 Respectfully submitted, 14 Bryan Schroder 15 United States Attorney 16 RICHARD L. POMEROY Assistant United States Attorney 17 MATHEW W. PILE 18 Acting Regional Chief Counsel, Seattle, Region X 19 s/Leisa A. Wolf LEISA A. WOLF 20 Special Assistant United States Attorney Office of the General Counsel 21 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 22 Seattle, WA 98104-7075 Telephone: (206) 615-3621 23 Fax: (206) 615-2531 leisa.wolf@ssa.gov 24 Page 2 DEFENDANT’S NOTICE OF APPEARANCE-[3:17-cv-00137-TMB] Case 3:17-cv-00137-TMB Document 9 Filed 08/15/17 Page 2 of 3 1 2 3 4 CERTIFICATE OF SERVICE 5 I hereby certify that the foregoing Defendant’s Notice of Appearance was filed with the 6 Clerk of the Court on August 15, 2017, using the CM/ECF system, which will send notification of 7 such filing to the following: Edward A. Wicklund. 8 s/Leisa A. Wolf 9 LEISA A. WOLF Special Assistant U.S. Attorney 10 Office of the General Counsel 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 3 DEFENDANT’S NOTICE OF APPEARANCE-[3:17-cv-00137-TMB] Case 3:17-cv-00137-TMB Document 9 Filed 08/15/17 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 LEISA A. WOLF 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) 615-3621 Fax: (206) 615-2531 11 leisa.wolf@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 PETER JOHN EBERTZ, Case No. 3:17-cv-00137-TMB 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, 2, and 3 of the Complaint. 23 24 Page 1 DEFENDANT’S ANSWER-[3:17-cv-00137-TMB] Case 3:17-cv-00137-TMB Document 10 Filed 09/11/17 Page 1 of 3 1 2. With respect to the allegations contained in paragraph 4, Defendant admits that 2 those are the last four digits of Plaintiff’s Social Security Number. Defendant lacks sufficient 3 information to form a belief as to Plaintiff’s residence and, therefore, denies same. 4 3. With respect to the allegations in paragraph 5, Nancy A. Berryhill is now the 5 Acting Commissioner of Social Security. 6 4. The allegations in paragraphs 6 through 8 constitute legal conclusions to which no 7 response is required. To the extent that a response is required, Defendant denies the allegations. 8 5. The remainder of the Complaint constitutes a Prayer for Relief to which no 9 response is required. To the extent that a response is required, Defendant denies that Plaintiff is 10 entitled to judgment or any sort of relief, including attorney’s fees. 11 6. Defendant denies any allegation not specifically admitted. 12 7. In accordance with section 42 U.S.C. §§ 405(g) & 1383(c)(3), Defendant files as 13 part of the answer a certified copy of the transcript of the record including the evidence upon 14 which the findings and decisions complained of are based. 15 WHEREFORE, Defendant prays for judgment dismissing the Complaint, with costs and 16 disbursements, and for judgment, in accordance with 42 U.S.C. §§ 405(g) & 1383(c)(3), affirming 17 the final decision of the Acting Commissioner of Social Security. 18 19 20 21 22 23 24 Page 2 DEFENDANT’S ANSWER-[3:17-cv-00137-TMB] Case 3:17-cv-00137-TMB Document 10 Filed 09/11/17 Page 2 of 3 1 DATED this 11th 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/Leisa A. Wolf LEISA A. WOLF 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) 615-3621 12 Fax: (206) 615-2531 leisa.wolf@ssa.gov 13 14 15 CERTIFICATE OF SERVICE 16 I hereby certify that the foregoing Defendant’s Answer was filed with the Clerk of the 17 Court on September 11, 2017, using the CM/ECF system, which will send notification of such 18 filing to the following: Edward A. Wicklund. 19 s/Timothy Shaw 20 TIMOTHY SHAW Paralegal Specialist 21 Office of the General Counsel 22 23 24 Page 3 DEFENDANT’S ANSWER-[3:17-cv-00137-TMB] Case 3:17-cv-00137-TMB Document 10 Filed 09/11/17 Page 3 of 3

Notice of Lodging Administrative Record

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 LEISA A. WOLF 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) 615-3621 Fax: (206) 615-2531 11 leisa.wolf@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 PETER JOHN EBERTZ, Case No. 3:17-cv-00137-TMB 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 24 Page 1 NOTICE OF LODGING OF ADMINISTRATIVE RECORD-[3:17-cv-00137-TMB] Case 3:17-cv-00137-TMB Document 11 Filed 09/11/17 Page 1 of 2 1 DATED this 11th day of September 2017. 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/Leisa A. Wolf LEISA A. WOLF 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) 615-3621 12 Fax: (206) 615-2531 leisa.wolf@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 11, 2017, using the CM/ECF system, which will send 18 notification of such filing to the following: Edward A. Wicklund. 19 s/Timothy Shaw 20 TIMOTHY SHAW Paralegal Specialist 21 Office of the General Counsel 22 23 24 Page 2 NOTICE OF LODGING OF ADMINISTRATIVE RECORD-[3:17-cv-00137-TMB] Case 3:17-cv-00137-TMB Document 11 Filed 09/11/17 Page 2 of 2

001 Certification Page

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA PETER JOHN EBERTZ Plaintiff VS.) CIVIL ACTION NO. 3: 17-CV-00137 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. A pre NANCY CHUNG Date: August 6, 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-00137-TMB DocumRatme-1 Filed 09/11/17 Page 1 of 1

002 Court Transcript Index

Court Transcript Index Civil Action Number: 3:17-CV-00137 Claimant: Peter John Ebertz Account Number: 502-90-4722 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 04/17/2017 1-6 6 AC Correspondence (ACCORR), dated 03/07/2017 7-9 3 Request for Review of Hearing Decision/Order (HA 520), dated 10-14 5 02/24/2017 ALJ Hearing Decision (ALJDEC), dated 01/30/2017 15-28 14 Representative Fee Agreement (FEEAGRMT), dated 04/15/2016 29 1 Appointment of Representative (1696), dated 04/15/2016 30-31 2 Transcript of Oral Hearing (TRANHR), dated 01/04/2017 32-44 13 Exhibits Exhibit No. of No. Description Page No. Pages 1A DDE TII:SIGNED BY DDS DR, dated 03/14/2016 45-51 7 2A Initial Disability Determination by State Agency, Title II, dated 52 1 03/14/2016 1B Notice of Disapproved Claim-Concurrent, dated 03/25/2016 53-57 5 2B Representative Fee Agreement Brad Myler, dated 58 1 04/15/2016 3B Appointment of Representative Brad Myler, dated 04/15/2016 59 1 4B Request for Hearing by ALJ, dated 05/11/2016 60-61 2 5B Request for Hearing Acknowledgement Letter, dated 62-82 21 05/27/2016 6B Objection to Video Hearing, dated 06/02/2016 83 1 7B Travel Assistance Letter, dated 10/21/2016 84-85 2 8B Hearing Notice, dated 11/25/2016 86-111 26 9B Report of Contact, dated 11/28/2016 112 1 10B Representative Correspondence, dated 11/28/2016 113 1 11B Acknowledge Notice of Hearing, dated 12/01/2016 114-115 2 12B Representative Fee Agreement, dated 07/11/2016 116 1 13B Appointment of Representative, dated 12/14/2016 117 1 14B Notice Of Hearing Reminder, dated 12/21/2016 118-123 6 15B Hearing Notice, dated 12/22/2016 124-149 26 16B Report of Contact-Response to Travel Assistance, dated 150 1 01/03/2017 1D Application for Disability Insurance Benefits, dated 151-157 7 09/11/2015 2D Certified Earnings Records, dated 07/25/2016 158-159 2 3D Detailed Earnings Query, dated 07/25/2016 160-169 10 4D Summary Earnings Query, dated 07/25/2016 170 1 DATE: August 6, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00137-TMB Document 11-2 Filed 09/11/17 Page 1 of 3 Court Transcript Index Civil Action Number: 3:17-CV-00137 Claimant: Peter John Ebertz Account Number: 502-90-4722 Exhibits Exhibit No. of No. Description Page No. Pages 5D New Hire, Quarter Wage, Unemployment Query (NDNH), 171-172 2 dated 07/25/2016 1E Chavez(AR 97-4(9) Screening Guide, dated 09/11/2015 173 1 2E Work Activity Report EE, dated 01/01/2014 to 12/31/2015, 174-230 57 from claimant 3E SSA-823 Report of SGA Determination-For SSA Use Only, 231-233 3 dated 12/31/2015 4E Disability Report-Field Office, dated 12/31/2015 234-236 3 5E Disability Report-Adult, dated 12/31/2015 237-245 9 6E Disability Report-Field Office, dated 05/17/2016 246-247 2 7E Disability Report-Appeals, dated 05/17/2016 248-255 8 8E Exhibit List to Rep PH2E, dated 07/25/2016 256-260 5 9E Work Background, dated 07/28/2016, from Claimant 261 1 10E Recent Medical Treatment, dated 07/28/2016, from Claimant 262 1 11E Medications, dated 07/28/2016, from Claimant 263-264 2 12E 827 Signature Request, dated 10/21/2016 265-267 3 13E Prehearing Brief, dated 12/28/2016, from Representative 268 1 14E Representative Brief/AC-1, dated 02/24/2017, from Bradford 269 1 D Myler-Attorney 1F Office Treatment Records, dated 05/01/2015 to 05/08/2015, 270-284 15 from DoD Central Location 2F Hospital Records, dated 05/13/2015 to 05/15/2015, from 285-292 8 ANCHORAGE RADIATION THERAPY CT 3F Office Treatment Records, dated 05/20/2015, from Minnesota 293-295 3 Oncology 4F Office Treatment Records, dated 05/20/2015 to 07/08/2015, 296-314 19 from PLYMOUTH WESTHEALTH CLINIC 5F Hospital Records, dated 11/16/2015, from Anchorage VA 315-316 2 6F Office Treatment Records, dated 05/11/2015 to 12/01/2015, 317-387 71 from ALASKA ONCOLOGY AND HEMATOLOGY 7F Health Summaries, dated 09/15/2014 to 12/29/2015, from VA 388-419 32 ANCHORAGE 8F Hospital Records, dated 05/15/2015 to 01/04/2016, from 420-448 29 ALASKA REGIONAL HOSPITAL 9F Medical Evaluation/Case Analysis, dated 03/14/2016 449-450 2 10F Office Treatment Records, dated 01/05/2016 to 03/20/2016, 451-466 16 from ALASKA ONCOLOGY AND HEMATOLOGY 11F Physical RFC Assessment, dated 06/01/2016, from Zack 467-468 2 Zipsir PAC 12F Pathology Report, dated 05/21/2015 to 05/21/2015, from 469-470 2 Abbott Northwestern Hospital DATE: August 6, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00137-TMB Document 11-2 Filed 09/11/17 Page 2 of 3 Court Transcript Index Civil Action Number: 3:17-CV-00137 Claimant: Peter John Ebertz Account Number: 502-90-4722 Exhibits Exhibit No. of No. Description Page No. Pages 13F Office Treatment Records, dated 05/20/2015 to 07/08/2015, 471-479 9 from Minnesota Oncology 14F Patient Summary, dated 09/08/2015 to 03/02/2016, from 480-496 17 Alaska Regional Hospital 15F Office Treatment Records, dated 11/18/2015 to 06/01/2016, 497-502 6 from Anchorage Medical and Surgical Clinic 16F Office Treatment Records, dated 12/01/2015 to 07/12/2016, 503-531 29 from Alaska Oncology and Hematology 17F Progress Notes, dated 03/07/2005 to 07/22/2016, from 532-556 25 Alaska VA Healthcare System 18F Office Treatment Records, dated 09/08/2016, from Alaska VA 557-559 3 Healthcare System 19F Office Treatment Records and Laboratory Reports, dated 560-568 9 07/11/2016 to 09/07/2016, from Alaska Oncology and Hematology 20F Lab Report, dated 12/06/2016, from Alaska Regional Hospital 569-570 2 21F Medical Evidence of Record/AC-2, dated 06/01/2016 to 571-573 3 03/28/2017, from Max Rabinowitz, MD DATE: August 6, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00137-TMB Document 11-2 Filed 09/11/17 Page 3 of 3

003 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable

Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable Civil Action Number: 3:17-CV-00137 Claimant: Peter John Ebertz Account Number: 502-90-4722 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 04/17/2017 1-6 6 AC Correspondence (ACCORR), dated 03/07/2017 7-9 3 Request for Review of Hearing Decision/Order (HA 520), dated 10-14 5 02/24/2017 ALJ Hearing Decision (ALJDEC), dated 01/30/2017 15-28 14 Representative Fee Agreement (FEEAGRMT), dated 04/15/2016 29 1 Appointment of Representative (1696), dated 04/15/2016 30-31 2 Transcript of Oral Hearing (TRANHR), dated 01/04/2017 32-44 13 DATE: August 6, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00137-TMB Document 11-3 Filed 09/11/17 Page 1 of 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44

004 Payment Documents and Decisions

Payment Documents and Decisions Civil Action Number: 3:17-CV-00137 Claimant: Peter John Ebertz Account Number: 502-90-4722 Exhibits Exhibit No. of No. Description Page No. Pages 1A DDE TII:SIGNED BY DDS DR, dated 03/14/2016 45-51 7 2A Initial Disability Determination by State Agency, Title II, dated 52 1 03/14/2016 DATE: August 6, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00137-TMB Document 11-4 Filed 09/11/17 Page 1 of 9 45 46 47 48 49 50 51 52

005 Jurisdictional Documents and Notices

Jurisdictional Documents and Notices Civil Action Number: 3:17-CV-00137 Claimant: Peter John Ebertz Account Number: 502-90-4722 Exhibits Exhibit No. of No. Description Page No. Pages 1B Notice of Disapproved Claim-Concurrent, dated 03/25/2016 53-57 5 2B Representative Fee Agreement Brad Myler, dated 58 1 04/15/2016 3B Appointment of Representative Brad Myler, dated 04/15/2016 59 1 4B Request for Hearing by ALJ, dated 05/11/2016 60-61 2 5B Request for Hearing Acknowledgement Letter, dated 62-82 21 05/27/2016 6B Objection to Video Hearing, dated 06/02/2016 83 1 7B Travel Assistance Letter, dated 10/21/2016 84-85 2 8B Hearing Notice, dated 11/25/2016 86-111 26 9B Report of Contact, dated 11/28/2016 112 1 10B Representative Correspondence, dated 11/28/2016 113 1 11B Acknowledge Notice of Hearing, dated 12/01/2016 114-115 2 12B Representative Fee Agreement, dated 07/11/2016 116 1 13B Appointment of Representative, dated 12/14/2016 117 1 14B Notice Of Hearing Reminder, dated 12/21/2016 118-123 6 15B Hearing Notice, dated 12/22/2016 124-149 26 16B Report of Contact-Response to Travel Assistance, dated 150 1 01/03/2017 DATE: August 6, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00137-TMB Document 11-5 Filed 09/11/17 Page 1 of 99 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150

006 Non Disability Related Development

Non Disability Related Development Civil Action Number: 3:17-CV-00137 Claimant: Peter John Ebertz Account Number: 502-90-4722 Exhibits Exhibit No. of No. Description Page No. Pages 1D Application for Disability Insurance Benefits, dated 151-157 7 09/11/2015 2D Certified Earnings Records, dated 07/25/2016 158-159 2 3D Detailed Earnings Query, dated 07/25/2016 160-169 10 4D Summary Earnings Query, dated 07/25/2016 170 1 5D New Hire, Quarter Wage, Unemployment Query (NDNH), 171-172 2 dated 07/25/2016 DATE: August 6, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00137-TMB Document 11-6 Filed 09/11/17 Page 1 of 23 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172

007 Disability Related Development

Disability Related Development Civil Action Number: 3:17-CV-00137 Claimant: Peter John Ebertz Account Number: 502-90-4722 Exhibits Exhibit No. of No. Description Page No. Pages 1E Chavez(AR 97-4(9) Screening Guide, dated 09/11/2015 173 1 2E Work Activity Report EE, dated 01/01/2014 to 12/31/2015, 174-230 57 from claimant 3E SSA-823 Report of SGA Determination-For SSA Use Only, 231-233 3 dated 12/31/2015 4E Disability Report-Field Office, dated 12/31/2015 234-236 3 5E Disability Report-Adult, dated 12/31/2015 237-245 9 6E Disability Report-Field Office, dated 05/17/2016 246-247 2 7E Disability Report-Appeals, dated 05/17/2016 248-255 8 8E Exhibit List to Rep PH2E, dated 07/25/2016 256-260 5 9E Work Background, dated 07/28/2016, from Claimant 261 1 10E Recent Medical Treatment, dated 07/28/2016, from Claimant 262 1 11E Medications, dated 07/28/2016, from Claimant 263-264 2 12E 827 Signature Request, dated 10/21/2016 265-267 3 13E Prehearing Brief, dated 12/28/2016, from Representative 268 1 14E Representative Brief/AC-1, dated 02/24/2017, from Bradford 269 1 D Myler-Attorney DATE: August 6, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00137-TMB Document 11-7 Filed 09/11/17 Page 1 of 98 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269

008 Medical Records Part 1

Medical Records Civil Action Number: 3:17-CV-00137 Claimant: Peter John Ebertz Account Number: 502-90-4722 Exhibits Exhibit No. of No. Description Page No. Pages 1F Office Treatment Records, dated 05/01/2015 to 05/08/2015, 270-284 15 from DoD Central Location 2F Hospital Records, dated 05/13/2015 to 05/15/2015, from 285-292 8 ANCHORAGE RADIATION THERAPY CT 3F Office Treatment Records, dated 05/20/2015, from Minnesota 293-295 3 Oncology 4F Office Treatment Records, dated 05/20/2015 to 07/08/2015, 296-314 19 from PLYMOUTH WESTHEALTH CLINIC 5F Hospital Records, dated 11/16/2015, from Anchorage VA 315-316 2 6F Office Treatment Records, dated 05/11/2015 to 12/01/2015, 317-387 71 from ALASKA ONCOLOGY AND HEMATOLOGY 7F Health Summaries, dated 09/15/2014 to 12/29/2015, from VA 388-419 32 ANCHORAGE 8F Hospital Records, dated 05/15/2015 to 01/04/2016, from 420-448 29 ALASKA REGIONAL HOSPITAL 9F Medical Evaluation/Case Analysis, dated 03/14/2016 449-450 2 10F Office Treatment Records, dated 01/05/2016 to 03/20/2016, 451-466 16 from ALASKA ONCOLOGY AND HEMATOLOGY 11F Physical RFC Assessment, dated 06/01/2016, from Zack 467-468 2 Zipsir PAC 12F Pathology Report, dated 05/21/2015 to 05/21/2015, from 469-470 2 Abbott Northwestern Hospital 13F Office Treatment Records, dated 05/20/2015 to 07/08/2015, 471-479 9 from Minnesota Oncology DATE: August 6, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00137-TMB Document 11-8 Filed 09/11/17 Page 1 of 211 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479

009 Medical Records Part 2

Medical Records Civil Action Number: 3:17-CV-00137 Claimant: Peter John Ebertz Account Number: 502-90-4722 Exhibits Exhibit No. of No. Description Page No. Pages 14F Patient Summary, dated 09/08/2015 to 03/02/2016, from 480-496 17 Alaska Regional Hospital 15F Office Treatment Records, dated 11/18/2015 to 06/01/2016, 497-502 6 from Anchorage Medical and Surgical Clinic 16F Office Treatment Records, dated 12/01/2015 to 07/12/2016, 503-531 29 from Alaska Oncology and Hematology 17F Progress Notes, dated 03/07/2005 to 07/22/2016, from 532-556 25 Alaska VA Healthcare System 18F Office Treatment Records, dated 09/08/2016, from Alaska VA 557-559 3 Healthcare System 19F Office Treatment Records and Laboratory Reports, dated 560-568 9 07/11/2016 to 09/07/2016, from Alaska Oncology and Hematology 20F Lab Report, dated 12/06/2016, from Alaska Regional Hospital 569-570 2 21F Medical Evidence of Record/AC-2, dated 06/01/2016 to 571-573 3 03/28/2017, from Max Rabinowitz, MD DATE: August 6, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-00137-TMB Document 11-9 Filed 09/11/17 Page 1 of 95 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573

MOTION reversal and remand in a Social Security Appeal by Peter John Ebertz.

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 PETER JOHN EBERTZ, 10 11 Plaintiff, CIVIL ACTION NO. 3:17-cv-00137 (TMB) 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 Step 2 denial is not supported by substantial evidence. 21 2. Plaintiff meets Listing 13.24 and should have been found disabled. 22 PROCEDURAL STATUS 23 On September 10, 2015, Peter John Ebertz ("Plaintiff") filed an application for disability 24 insurance benefits alleging disability beginning May 5, 2015, due to stage 4 prostate cancer and 25 26 metastatic disease, type 2 diabetes, and morbid obesity. Administrative Transcript ("T") 45. The 27 application was denied on March 14, 2016. T 52. At the hearing, Plaintiff, through counsel, 28 amended his onset date to September 10, 2015. T 35. After the hearing, Administrative Law 1 Case 3:17-cv-00137-TMB Document 12 Filed 10/11/17 Page 1 of 16 1 Judge ("ALJ") Paul T. Hebda issued an unfavorable decision on January 30, 2017. T 18-24. 2 In his decision, the ALJ found Plaintiff meets the insured status requirements through 3 December 31, 2019, and he has not engaged in substantial gainful activity since September 10, 4 5 2015, the amended alleged onset date. T 20. He determined that Plaintiff had the medically 6 determinable impairments of status-post prostate cancer, diabetes mellitus, and obesity. T 20. 7 However, the ALJ found that none of these impairments were severe, thus finding Plaintiff not 8 disabled. T 20-23. On April 17, 2017, the Appeals Council denied review, making the ALJ’s 9 unfavorable decision the final agency decision. Plaintiff sued to challenge that decision. This 10 11 court has jurisdiction of this action. 42 U.S.C. § 405(g). 12 STATEMENT OF FACTS 13 Plaintiff was 55 years old on the amended alleged onset date. T 45. He was in the 14 United States Army until June of 2004, and has past work in biomedical services and as a 15 security guard. T 261. 16 17 A. Medical Opinion Evidence 18 On April 20, 2015, Plaintiff underwent a C&P evaluation for the Department of Veterans 19 Affairs with James F. Zink, PA-C, based on an exacerbation of his ankle and back conditions. T 20 541, 548. Plaintiff reported bone pain due to chemotherapy treatments, particularly in his low 21 22 back and left ankle. T 542. The left ankle caused painful ambulation and pain with weight 23 bearing. T 542. He was tender to palpation and had slightly reduced range of motion. T 542. It 24 was noted that pain would significantly limit functional ability with repeated use over a period of 25 time. T 543. Pain increased with prolonged standing. T 544. On examination of the spine, 26 Plaintiff had slightly reduced flexion, extension, and lateral flexion bilaterally. T 548. He was 27 28 tender to palpation at L3-L4. T 549. Pain would significantly limit functional ability, as it 2 Case 3:17-cv-00137-TMB Document 12 Filed 10/11/17 Page 2 of 16 1 interfered with sitting and standing. T 550-51. Deep tendon reflexes in the knee and ankle were 2 1+ bilaterally. T 552. He had decreased sensation to light touch in both feet, which was caused 3 by diabetes. T 552. Back pain affected Plaintiff’s ability to run, walk, stand, bend, stoop, lift, 4 5 and squat. T 554. Mr. Zink opined Plaintiff could perform sedentary work, as his ankle and 6 back pain impacted his ability to perform physical labor. T 546, 554. 7 On June 1, 2016, Zach Zipsir, PA-C, completed a physical assessment on Plaintiff’s 8 behalf. He reported Plaintiff was diagnosed with stage 4 prostate cancer and type 2 diabetes. T 9 467. He opined Plaintiff’s symptoms were frequently severe enough to interfere with attention 10 11 and concentration. T 467. His medications cause drowsiness and dizziness. T 467. Plaintiff 12 could walk two blocks, sit for three hours, and stand/walk for two hours. T 467. He could lift 13 ten pounds frequently and twenty pounds occasionally. T 467. He would need two or three 14 additional breaks for thirty minutes each, and he would need to recline or lie down outside of 15 normal breaks. T 467. Plaintiff would miss work more than four times per month. T 468. 16 17 On March 28, 2017, Max Rabinowitz, M.D., Plaintiff’s treating physician and Mr. 18 Zipsir’s supervising doctor, wrote a letter on Plaintiff’s behalf.1 He stated that Plaintiff had 19 terminal cancer and was receiving scheduled monitoring and treatment to slow the cancer’s 20 progression. T 572. It was currently well controlled, but he expected it to progress at some 21 22 point. T 572. He reviewed the physical assessment completed by Mr. Zipsir, and concurred with 23 the opinion. T 572. He made it very clear that Plaintiff’s cancer was not in remission. T 572. 24 B. Medical Records 25 On April 27, 2015, Plaintiff presented to the VA Hospital for evaluation of a mass in his 26 groin. T 413. He noticed a small lump in the fall, but it had increased in size recently. T 413. 27 28 1 This letter was submitted to the Appeals Council. 3 Case 3:17-cv-00137-TMB Document 12 Filed 10/11/17 Page 3 of 16 1 He exhibited minimal symptoms, and the lump was only mildly tender if palpated or bumped. T 2 413. Plaintiff underwent a transrectal ultrasound of the prostate on May 1, 2015, which revealed 3 metastatic prostate cancer. T 280-81. A biopsy was taken and a bone scan was planned. T 281. 4 5 Nuclear medicine bone imaging was unremarkable for metastases of the cancer to the bones. T 6 273. On May 8, 2015, the imaging findings were noted to be consistent with metastatic prostate 7 cancer, and his prostate-specific antigen ("PSA") levels were 42.2. T 276. Plaintiff was 8 diagnosed with stage 4 Gleason 10 prostate cancer with extensive lymph node involvement. T 9 277. He was referred to medical oncology. T 277. 10 11 On May 11, 2015, Plaintiff treated with Dr. Rabinowitz, who diagnosed very aggressive 12 prostate cancer with pelvic and inguinal adenopathy. T 320. He started Plaintiff on Casodex and 13 Lupron injections. T 320. Plaintiff underwent a positron emission tomography ("PET") scan the 14 following day, which showed a bilobed, prominent, and mildly hypermetabolic lesion in the left 15 inguinal area. T 384. The lesion was PET positive. T 387. The presentation suggested a more 16 17 aggressive form of prostate cancer. T 387. It was noted that the adenopathy in the pelvic area 18 was suspicious for extension of the cancer into the pelvic nodes. T 387. 19 On May 13, 2015, Plaintiff presented to Anchorage Radiation Therapy Center for further 20 evaluation. It was noted that Plaintiff’s PSA levels were up to 50.91, causing Dr. Rabinowitz to 21 22 immediately initiate Lupron treatment. T 287. A digital rectal examination revealed a very firm 23 and fixed prostate with nodularity. T 289. He also had a firm, fixed mass in the left inguinal 24 region. T 288. He was diagnosed with very high risk adenocarcinoma of the prostate. T 289. 25 Sean McGuire, M.D., at the Anderson Cancer Center in Houston, Texas was consulted to 26 determine the best course of treatment. T 289. He advised Plaintiff should be started on 27 28 androgen deprivation for at least three months, and then restaged. T 289. If the cancer 4 Case 3:17-cv-00137-TMB Document 12 Filed 10/11/17 Page 4 of 16 1 responded to androgen deprivation, then he should undergo prostate and regional lymph node 2 irradiation. T 289. 3 On May 14, 2015, Plaintiff returned to Dr. Rabinowitz. He ordered a biopsy of the left 4 5 inguinal node to determine if it was the same process as in the prostate. T 352. He planned to 6 continue hormonal suppression. T 352. The lymph node biopsy report, dated May 15, 2015, 7 revealed metastatic adenocarcinoma consistent with prostatic origin. T 291. On May 20, 2015, 8 Plaintiff treated with Stuart H. Bloom, M.D., at the request of his brother, Dr. Michael Ebertz. T 9 293. After examination, Dr. Bloom noted that the cancer was still castrate sensitive, but it could 10 11 not be cured. T 307. Since Plaintiff was asymptomatic, quality of life was not an issue, and the 12 only goal for treatment was to maximize Plaintiff’s survival. T 307. He noted that standard 13 treatment was androgen deprivation, and radiation could not be used because this was a systemic 14 disease, not regional. T 307. In his opinion, Plaintiff had two to seven years before the cancer 15 would become castrate resistant, and he could live another three to five years after that with other 16 17 therapies. T 307. He advised Plaintiff’s doctors that Plaintiff should undergo androgen 18 deprivation for at least two years, depending on the drop in PSA levels. T 307. Currently, PSA 19 was 26.19. T 311. 20 On May 21, 2015, the report of the prostrate biopsy was finalized. T 312. Tissue from 21 22 the right showed prostatic adenocarcinoma with perineural invasion and extraprostatic extension. 23 T 312. Tissue from the left showed prostatic adenocarcinoma with perineural invasion. T 312. 24 By June 22, 2015, Plaintiff’s PSA had dropped to 1.9. T 348. Adenopathy had diminished, the 25 left inguinal mass had decreased in size, and there was no evidence of disease outside the pelvic 26 area. T 348. Lupron and Casodex were continued. T 348. 27 28 5 Case 3:17-cv-00137-TMB Document 12 Filed 10/11/17 Page 5 of 16 1 On July 8, 2015, Plaintiff returned to Dr. Bloom to discuss treatment with chemotherapy. 2 T 301. Dr. Bloom noted that the left inguinal lymph node had shrunk significantly and was 3 about the size of a marble. T 301. Plaintiff reported he felt about the same and his energy was 4 5 okay, meaning he could do what he needed to. T 301. He reported that, after thinking about it 6 and doing research, he wanted to start chemotherapy. T 301. Dr. Bloom noted that standard 7 chemotherapy consisted of six cycles of Taxotere, which was meant to decrease or delay 8 development of the cancer. T 302. Side effects of treatment included fatigue, paresthesias, 9 myalgias, and hyperglycemia. T 302. Dr. Bloom noted that radiation was not necessary because 10 11 local therapy would not improve Plaintiff’s overall survival. T 302. A CT scan on July 27, 12 2015, showed a slight decrease in the size of the left inguinal mass. T 378. 13 On August 10, 2015, Plaintiff returned to Dr. Rabinowitcz to begin chemotherapy 14 treatment. T 344. He was still receiving Lupron injections to continue hormone deprivation 15 therapy. T 344. Plaintiff was prescribed Neulasta for immune support while undergoing 16 17 chemotherapy. T 344. Plaintiff returned on September 8, 2015, reporting joint pain and mild 18 fatigue caused by chemotherapy. T 340. He was prescribed Vicodin for joint pain. T 340. On 19 September 29, 2015, Plaintiff received the third cycle of chemotherapy from Mr. Zipsir. T 336. 20 He reported mild fatigue after treatment, and he tolerated the second cycle better than the first. T 21 22 336. Plaintiff returned for the fourth cycle on October 20, 2015. T 332. It was noted that he 23 was tolerating treatment quite well, and had a good response in the groin node. T 332. It was 24 determined that the majority of Plaintiff’s joint pain was caused by Neulasta injections, but he 25 used his pain medication, which helped. T 332. Plaintiff reported that he was having problems 26 regulating his blood sugars since starting chemotherapy. T 332. The left inguinal mass had 27 28 shrunk to about three centimeters. T 333. 6 Case 3:17-cv-00137-TMB Document 12 Filed 10/11/17 Page 6 of 16 1 On October 23, 2015, Plaintiff presented to the VA Hospital for evaluation of diabetes. T 2 399. He was advised that his Lantus and Metformin doses could be increased, but mealtime 3 insulin would be contraindicated due to chemotherapy. T 400. Plaintiff returned to Dr. 4 5 Rabinowitz for the fifth cycle of chemotherapy on November 10, 2015. T 328. Dr. Rabinowitz 6 noted PSA was down to.28 and the left inguinal mass had shrunk to about one centimeter. T 7 328. Plaintiff reported hyperglycemic conditions, which was due to steroid use. T 328. He 8 complained of fatigue, stomach discomfort, and weight gain. T 328. On November 18, 2015, 9 Plaintiff was evaluated at Anchorage Medical and Surgical Center for diabetes management and 10 11 weight gain. T 498. He reported paresis in his toes when blood sugars were elevated. T 498. 12 His current exercise level was noted to be sedentary, but he used to walk one to three miles every 13 day before cancer. T 498. Current A1c level was 8.3. T 498. Short acting insulin was added to 14 his regimen. T 498. 15 Plaintiff treated with Mr. Zipsir on December 1, 2015, for his last cycle of chemotherapy. 16 17 T 324. It was noted that he continued to tolerate treatment well, and was scheduled for Lupron 18 and Neulasta injections on the following day. T 324. Plaintiff followed up with Dr. Rabinowitz 19 on January 5, 2016. T 454. His PSA was down to.26 and the left inguinal adenopathy had 20 resolved. T 454. Dr. Rabinowitz noted Plaintiff had a high grade aggressive prostate cancer and 21 22 needed to continue Lupron. T 454. A CT scan on March 1, 2016, showed interval reduction of 23 the pelvic and left inguinal adenopathy, and no new areas of metastatic disease. T 465. On 24 March 2, 2016, Plaintiff returned to Dr. Rabinowitz. He reported some fatigue, but it was 25 improving. T 458. PSA was down to.22. T 458. The treatment plan was modified to Lupron 26 injections every three months. T 458. The same day, Plaintiff treated at Anchorage Medical and 27 28 Surgical Center for a diabetes follow up. T 497. A1c was up to 9.0. T 97. Lantus was 7 Case 3:17-cv-00137-TMB Document 12 Filed 10/11/17 Page 7 of 16 1 increased, and Plaintiff was instructed to use more meal time insulin when he ate more 2 carbohydrates. T 497. 3 On June 1, 2016, Plaintiff followed up with Mr. Zipsir. T 507. He was doing well and 4 5 continued on Lupron without complication. T 507. PSA was down to.17. T 507. He was 6 working on exercising to lose weight and controlling his diabetes. T 507. He reported moderate 7 fatigue, which was causing some difficulty performing daily activities. T 509. On July 12, 8 2016, PSA was down to.15 and Plaintiff was doing well, but he still reported moderate fatigue. 9 T 503, 505. Plaintiff treated with Mr. Zipsir again on September 7, 2016 for a Lupron injection. 10 11 T 560. PSA had increased to.17. T 560. Plaintiff complained of back pain, with minimal relief 12 from Aspirin and Motrin. T 560-61. He was given an IV of morphine in the office, and 13 prescribed Flexeril. T 560. Plaintiff continued to report moderate fatigue, but he remained as 14 active as possible. T 561-62. 15 C. The Hearing 16 17 A hearing was held on January 4, 2017. T 34. Plaintiff’s attorney reported that Plaintiff 18 still had stage 4 prostate cancer, which was inoperable, with metastasis in the lymph nodes. T 19 37. The ALJ questioned the attorney about the current status of the cancer, and the attorney 20 stated that Plaintiff’s cancer was terminal and medication simply prolonged his life. T 38. The 21 22 ALJ believed Plaintiff did not have active cancer, and refused to take testimony from Plaintiff 23 because he is not a medical expert. T 39. The ALJ stated that because he did not see a 24 recurrence of the cancer, Plaintiff did not meet the twelve month durational threshold to meet a 25 Listing. T 39. The ALJ stated that cancer was currently in remission. T 40. He did not take any 26 testimony from Plaintiff or the vocational expert. 27 28 8 Case 3:17-cv-00137-TMB Document 12 Filed 10/11/17 Page 8 of 16 1 CONTENTIONS 2 Pursuant to 42 U.S.C. § 405(g), this Court may review the record to determine whether 3 the Commissioner applied the proper legal standards and whether substantial evidence supports 4 5 the Commissioner’s final decision to deny Plaintiff benefits. Substantial evidence means more 6 than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as 7 adequate to support the ALJ’s conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Hill 8 v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 9 1997)). To be considered disabled under the Social Security Act, Plaintiff must demonstrate an 10 11 "inability to engage in any substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in death or which has lasted or 13 can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 14 423(d)(1)(A). 15 1. The ALJ’s Step 2 denial is not supported by substantial evidence. 16 17 The ALJ determined that Plaintiff did not have an impairment or combination of 18 impairments that significantly limited his ability to perform basic work activities. T 21. He 19 stated that Plaintiff’s "impairments are either well-controlled or that they have not caused 20 significant functional limitations for twelve continuous months, as required by the regulations." 21 22 T 22. The ALJ rejected the opinion of Mr. Zipsir because treatment notes indicated Plaintiff was 23 doing well. T 23. The ALJ did not apply the appropriate legal standard when determining that 24 Plaintiff did not have a severe impairment. 25 In order to be considered severe, an impairment must cause more than "a slight 26 abnormality…which would have no more than a minimal effect on an individual’s ability to 27 28 work." Social Security Ruling ("SSR") 85-28. "Step two is'a de minimus screening device 9 Case 3:17-cv-00137-TMB Document 12 Filed 10/11/17 Page 9 of 16 1 [used] to dispose of groundless claims,’ and an impairment may be found'not severe only if the 2 evidence establishes a slight abnormality that has no more than minimal effect on an individual’s 3 ability to work.’" Jager v. Barnhart, 192 F. App’x 589, 592 (9th Cir. 2006) (citing Webb v. 4 5 Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005)). "Important here, at the step two inquiry, is the 6 requirement that the ALJ must consider the combined effect of all of the claimant's impairments 7 on h[is] ability to function, without regard to whether each alone was sufficiently severe." 8 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). "Also, he is required to consider the 9 claimant's subjective symptoms, such as pain or fatigue, in determining severity." Id.; 20 C.F.R. 10 11 § 404.1529(d)(1). 12 The ALJ determined that Plaintiff did not have an impairment or combination of 13 impairments that significantly limited his ability to work. T 22. The ALJ found prostate cancer 14 non-severe because it did not last twelve months. T 22. He found obesity non-severe because it 15 had no more than minimal effect on Plaintiff’s ability to function. T 22. He found diabetes non-16 17 severe because there was no indication that Plaintiff had any complications caused by diabetes. 18 T 23. There is no indication that the ALJ considered the combination of these impairments. The 19 evidence supports that Plaintiff’s impairments, in combination, had more than minimal effect on 20 his ability to perform basic work activities. 21 22 The ALJ must consider all relevant evidence in the record, and he cannot ignore the 23 evidence that does not support his determination. 20 C.F.R. § 404.1520(3); see Gallant v. 24 Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (The ALJ "cannot reach a conclusion first, and 25 then attempt to justify it by ignoring competent evidence in the record that suggests an opposite 26 result."); Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir.1983) ("[W]e do not require that … an 27 28 ALJ must reconcile explicitly every conflicting shred of medical testimony, … we cannot accept 10 Case 3:17-cv-00137-TMB Document 12 Filed 10/11/17 Page 10 of 16 1 an unreasoned rejection of all the medical evidence in a claimant’s favor.") (internal citations 2 omitted); Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir.1982) ("[A]n ALJ must weigh all the 3 evidence and may not ignore evidence that suggests an opposite conclusion."). 4 5 Here, the ALJ completely ignored evidence supporting that Plaintiff’s impairments, in 6 combination, caused more than a minimal effect on his ability to work. The ALJ never 7 mentioned the C&P evaluation from Mr. Zink which limited Plaintiff to sedentary work. T 546, 8 554. Mr. Zink noted that treatment for Plaintiff’s prostate cancer had caused pain at the sites of 9 preexisting injuries. T 542, 548. In 1991, Plaintiff sprained his ankle, and in 2001, he strained 10 11 his lower back. T 541, 548. After chemotherapy, Plaintiff complained of pain in his ankle, with 12 increased pain caused by prolonged standing. T 542, 544. Plaintiff’s ankle was tender to 13 palpation, with slightly reduced range of motion and pain with weight bearing. T 542. Back 14 pain interfered with Plaintiff’s ability to sit and stand. T 551. Plaintiff was tender to palpation at 15 L3-L4, with slightly reduced range of motion on flexion, extension, and lateral flexion 16 17 bilaterally. T 548-49. Mr. Zink noted that back pain caused difficulty with running, walking, 18 standing, bending, stooping, lifting, and squatting, and opined he was able to perform sedentary 19 work. 554. 20 The C&P evaluation is supported by other evidence in the record. On September 8, 2015, 21 22 Dr. Rabinowitz prescribed Vicodin for complaints of joint pain. T 340. This was believed to be 23 secondary to Taxotere. T 340. On October 20, 2015, Mr. Zipsir noted the majority of Plaintiff’s 24 pain was caused by the Neulasta injections, but pain medications had been helping. T 332. He 25 complained of bone pain again on November 10, 2015. T 328. After the C&P evaluation, on 26 September 7, 2016, Plaintiff reported that he further hurt his back shoveling and moving sand 27 28 bags. T 560-61. He required IV Morphine in the office, and was prescribed Flexeril. T 560. 11 Case 3:17-cv-00137-TMB Document 12 Filed 10/11/17 Page 11 of 16 1 The evidence supports a finding that Plaintiff’s treatment for prostate cancer caused more than 2 minimal effect on his ability to work because it caused bone pain, which limited him to sedentary 3 work. Notably, if Plaintiff was limited to sedentary work, he would likely be found disabled 4 5 under the Medical-Vocational Guidelines ("GRIDs").2 See 20 C.F.R. Part 404, Subpart P, 6 Appendix 2. 7 Further, the ALJ ignored evidence in direct contradiction to his finding that Plaintiff had 8 not developed any complications due to diabetes. There are two notations in the record 9 supporting that elevated blood sugars, which occurred due to cancer treatment, caused 10 11 complications. In an evaluation at Anchorage Medical and Surgical Center, it was noted that he 12 had paresis in his toes when his blood sugar was elevated. T 498. Mr. Zink also noted decreased 13 sensation to light tough in both Plaintiff’s feet, which was related to diabetes. T 552. The ALJ 14 did not mention this evidence, as he stated there was no evidence in the record to support 15 diabetic complications. T 22-23. 16 17 Lastly, the ALJ rejected the disabling opinion of Mr. Zipsir because treatment notes 18 stated Plaintiff was doing well, he was trying to lose weight, and he was attempting to control his 19 blood sugars. T 23. This reason is not sufficient to reject Mr. Zipsir’s opinion, as it is contrary 20 to the evidence. Mr. Zipsir opined that Plaintiff could sit for three hours, stand and walk for two 21 22 hours, would need two or three extra thirty minute breaks, and would be absent more than four 23 times per month. T 467-68. Treatment notes prior to the opinion noted bone and joint pain (T 24 328, 332, 340), which was supported by the C&P evaluation. On June 1, 2016, the date the 25 26 2 It is impossible to know whether Plaintiff would, in fact, be disabled, as vocational expert 27 testimony is required to classify Plaintiff’s past work and determine if he had transferrable skills, both of which are necessary to determine whether the GRIDs apply and would lead to a finding 28 of disability. 12 Case 3:17-cv-00137-TMB Document 12 Filed 10/11/17 Page 12 of 16 1 opinion was signed, Plaintiff reported moderate fatigue that affected his ability to perform some 2 daily activities. T 509. This evidence supports Mr. Zipsir’s opinion. The ALJ is required to 3 consider evidence of pain and fatigue (20 C.F.R. § 404.1529(d)(1)), which he clearly did not do, 4 5 as neither joint pain or fatigue are mentioned in the ALJ’s decision. 6 The ALJ failed to consider Plaintiff’s impairments in combination, which is error. 7 Smolen, 80 F.3d at 1290. He further erred by ignoring the evidence supporting a finding that 8 Plaintiff’s impairments, in combination, caused more than minimal effect on his ability to work. 9 Gallant, 753 F.2d at 1456. Lastly, the ALJ erred in rejecting the opinion of Mr. Zipsir. "This is 10 11 not the'total absence of objective evidence of a severe medical impairment’ that would permit 12 [the Court] to affirm'a finding of no disability at step two.’" Ortiz v. Comm’r of Soc. Sec., 425 13 F. App’x 653, 655 (9th Cir. 2011) (quoting Webb, 433 F.3d at 688). 14 Once Plaintiff has established a severe impairment, he must also prove that it satisfies the 15 durational requirement. The regulations require Plaintiff to prove an "inability to do any 16 17 substantial gainful activity by reason of any medically determinable physical or mental 18 impairment which can be expected to result in death or which has lasted or can be expected to 19 last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a). "Unless [the] 20 impairment is expected to result in death, it must have lasted or be expected to last for a 21 22 continuous period of at least 12 months." 20 C.F.R. § 404.1509. The ALJ claimed Plaintiff’s 23 stage 4 prostate cancer did not cause significant vocational limitations for at least twelve months, 24 so he did not find it to be a severe impairment. T 22. That is not the appropriate legal standard 25 to be applied in this case. 26 Plaintiff was diagnosed with terminal stage 4 metastatic prostate cancer. Dr. Bloom 27 28 noted that Plaintiff’s cancer could not be cured, and the goal of treatment was to prolong 13 Case 3:17-cv-00137-TMB Document 12 Filed 10/11/17 Page 13 of 16 1 Plaintiff’s life. T 307. In his letter submitted to the Appeals Council, Dr. Rabinowitz confirmed 2 Plaintiff’s cancer was terminal. T 572. Terminal means the cancer is irreversible and will result 3 in death. BARRON’S DICTIONARY OF MEDICAL TERMS 562 (6th ed. 2013). Therefore, Plaintiff 4 5 meets the durational requirement of the act, as his impairment will result in death. 20 C.F.R. § 6 404.1509. Since Plaintiff’s cancer will result in death, he does not need to prove that symptoms 7 or functional limitations lasted or will last twelve months. Id. Therefore, the ALJ did not apply 8 the appropriate legal standard in determining that Plaintiff’s prostate cancer was not severe. 9 The evidence establishes that Plaintiff’s prostate cancer is a severe impairment, as 10 11 treatment caused diabetic complications and pain associated with preexisting injuries that caused 12 more than minimal effect on Plaintiff’s ability to work. Prostate cancer meets the durational 13 requirement, as it is terminal, meaning it will result in death. The ALJ’s finding of no severe 14 impairments is the product of legal error and requires remand. 15 2. Plaintiff meets Listing 13.24B and should have been found disabled. 16 17 Listing 13.24 requires Plaintiff to prove that he has cancer of the prostate that is 18 progressive or recurrent despite treatment, occurs with visceral metastases, or is small cell 19 carcinoma. 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 13.24. Visceral metastases 20 refers to metastases to the internal organs. 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 21 22 13.24B. Plaintiff meets Listing 13.24B. 23 According to Programs Operations Manual System DI 23022.282, Plaintiff meets Listing 24 13.24B if he has stage 4 metastatic prostate cancer that has spread to another internal organ, 25 excluding bones. Plaintiff was officially diagnosed with stage 4 metastatic prostate cancer with 26 extensive lymph node involvement on May 8, 2015. T 277. Biopsies confirmed cancer in both 27 28 the right and left side of the prostate, as well as cancer in the left inguinal lymph node of 14 Case 3:17-cv-00137-TMB Document 12 Filed 10/11/17 Page 14 of 16 1 prostatic origin. T 291, 312. Lymph nodes are organs in the lymphatic system which act as 2 filters and help fight infection. See American Cancer Society, Lymph Nodes and Cancer, 3 available at https://www.cancer.org/cancer/cancer-basics/lymph-nodes-and-cancer.html (last 4 5 visited Oct. 10, 2017). Plaintiff’s prostate cancer spread into the lymph nodes in the pelvic 6 region. This metastasis to another internal organ satisfies the requirements of Listing 13.24B. 7 Therefore, Plaintiff should have been found disabled. 8 CONCLUSION 9 For the foregoing reasons, it is respectfully requested that the Commissioner’s decision 10 11 be reversed, and that this matter be remanded for a calculation of benefits. In the alternative, it is 12 respectfully requested that the ALJ’s decision be vacated, and this matter be remanded for 13 further proceedings, including a de novo hearing and new decision. 14 Respectfully submitted, 15/s/Edward A. Wicklund 16 Edward A. Wicklund, Esq. 17 Attorney for Plaintiff Olinsky Law Group 18 300 South State Street, Suite 420 19 Syracuse, New York 13202 Telephone: (315) 701-5780 20 Fax: (315) 701-5781 twicklund@windisability.com 21 22 23 24 25 26 27 28 15 Case 3:17-cv-00137-TMB Document 12 Filed 10/11/17 Page 15 of 16 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 BRYAN SCHRODER 6 United States Attorney 7 8 LEISA A. WOLF Special Assistant United States Attorney 9 Office of the General Counsel Social Security Administration 10 701 Fifth Avenue, Suite 2900 M/S 221A 11 Seattle, WA 98104-7075 Telephone: (206) 615-3621 12 Fax: (206) 615-2531 leisa.wolf@ssa.gov 13 14 This 11th day of October, 2017. 15 16/s/Edward A. Wicklund Edward A. Wicklund, Esq. 17 Attorney for Plaintiff 18 Olinsky Law Group 300 South State Street, Suite 420 19 Syracuse, New York 13202 20 Telephone: (315) 701-5780 Fax: (315) 701-5781 21 twicklund@windisability.com 22 23 24 25 26 27 28 16 Case 3:17-cv-00137-TMB Document 12 Filed 10/11/17 Page 16 of 16

MOTION for Extension of Time to File Response/Reply as to {{12}} MOTION reversal and remand in a Social Security Appeal Unopposed by Nancy A. Berryhill.

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 LEISA A. WOLF 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) 615-3621 Fax: (206) 615-2531 11 leisa.wolf@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 PETER J. EBERTZ, Case No. 3:17-cv-00137 16 Plaintiff, 17 UNOPPOSED MOTION TO AMEND vs. THE SCHEDULING ORDER 18 NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. Defendant hereby moves, with no opposition from Plaintiff’s counsel, that the scheduling 21 Order should be amended as follows for the reasons noted in the Declaration of Leisa A. Wolf: 22  Defendant shall file a response to Plaintiff’s Motion on or before December 13, 2017; and 23  Plaintiff shall file the optional Reply on or before December 27, 2017. 24 Page 1 UNOPPOSED MOTION TO AMEND THE SCHEDULING ORDER-[3:17-cv-00137] Case 3:17-cv-00137-TMB Document 13 Filed 11/13/17 Page 1 of 3 1 DATED this 13th day of November 2017. 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/Leisa A. Wolf LEISA A. WOLF 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) 615-3621 12 Fax: (206) 615-2531 leisa.wolf@ssa.gov 13 14 15 16 17 18 19 20 21 22 23 24 Page 2 UNOPPOSED MOTION TO AMEND THE SCHEDULING ORDER-[3:17-cv-00137] Case 3:17-cv-00137-TMB Document 13 Filed 11/13/17 Page 2 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Defendant’s Motion to Amend the Scheduling Order 3 and attached proposed Order were filed with the Clerk of the Court on November 13, 2017, using 4 the CM/ECF system, which will send notification of such filing to the following: Edward A. 5 Wicklund. 6 7 s/Leisa A. Wolf LEISA A. WOLF 8 Special Assistant U.S. Attorney Office of the General Counsel 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 3 UNOPPOSED MOTION TO AMEND THE SCHEDULING ORDER-[3:17-cv-00137] Case 3:17-cv-00137-TMB Document 13 Filed 11/13/17 Page 3 of 3

Proposed Order

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT FOR THE 8 DISTRICT OF ALASKA 9 PETER J. EBERTZ, Civil No. 3:17-cv-00137 10 Plaintiff, 11 vs. PROPOSED ORDER AMENDING THE SCHEDULING ORDER 12 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 13 Defendant. 14 Based on Defendant’s Motion, and that Plaintiff has no opposition, it is hereby 15 ORDERED that the Scheduling Order shall be amended as follows: 16  Defendant shall have up to and including December 13, 2017, to file Defendant’s 17 Response; and 18  Plaintiff shall have up to and including December 27, 2017, to file a Reply brief. 19 DATED this _____ day of, 2017. 20 ___________________________________ 21 UNITED STATES DISTRICT JUDGE 22 23 24 Page 1 PROPOSED ORDER AMENDING THE SCHEDULING ORDER-[3:17-cv-00137] Case 3:17-cv-00137-TMB Document 13-1 Filed 11/13/17 Page 1 of 2 1 Presented by: 2 s/Leisa A. Wolf 3 LEISA A. WOLF Special Assistant U.S. Attorney 4 Office of the General Counsel Social Security Administration 5 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 6 Telephone: (206) 615-3621 Fax: (206) 615-2531 7 leisa.wolf@ssa.gov 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 2 PROPOSED ORDER AMENDING THE SCHEDULING ORDER-[3:17-cv-00137] Case 3:17-cv-00137-TMB Document 13-1 Filed 11/13/17 Page 2 of 2

DECLARATION of Leisa A. Wolf re {{13}} MOTION for Extension of Time to File Response/Reply as to {{12}} MOTION reversal and remand in a Social Security Appeal Unopposed by Nancy A. Berryhill.

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 richard.pomeroy@usdoj.gov 6 LEISA A. WOLF 7 Special Assistant U.S. Attorney Office of the General Counsel 8 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 9 Seattle, WA 98104-7075 Telephone: (206) 615-3621 10 Fax: (206) 615-2531 leisa.wolf@ssa.gov 11 Of Attorneys for Defendant 12 IN THE UNITED STATES DISTRICT COURT 13 FOR THE DISTRICT OF ALASKA 14 15 PETER J. EBERTZ, Case No. 3:17-cv-00137 16 Plaintiff 17 vs. DECLARATION OF LEISA A. WOLF 18 NANCY A. BERRYHILL, Acting Commissioner of Social Security 19 Defendant 20 I, Leisa A. Wolf, declare as follows: 21 1. I am an Assistant Regional Counsel for the Social Security Administration and a Special 22 Assistant United States Attorney for Social Security matters. 23 2. Plaintiff filed his opening brief on October 11, 2017. 24 Page 1 DECLARATION OF LEISA A. WOLF – [3:17-cv-00137] Case 3:17-cv-00137-TMB Document 14 Filed 11/13/17 Page 1 of 3 1 3. Defendant’s brief is currently due to be filed on or before November 13, 2017. 2 4. I plan to submit a memorandum to the client Agency, which is the Office of Disability 3 Adjudication and Review, Appeals Council, to explore settlement options. Once I 4 receive a response, I will need additional time in which to consult with opposing counsel 5 or to draft Defendant’s brief. Given these potential timing issues, I am requesting a 30-6 day extension in which to file Defendant’s response to Plaintiff’s Opening Brief, to 7 December 13, 2017. 8 5. Plaintiff’s counsel’s office informed me that they have no objection to my proposed 9 extension. 10 Executed this 13th day of November 2017. 11 By: s/Leisa A. Wolf 12 LEISA A. WOLF Special Assistant U.S. Attorney 13 14 15 16 17 18 19 20 21 22 23 24 Page 2 DECLARATION OF LEISA A. WOLF – [3:17-cv-00137] Case 3:17-cv-00137-TMB Document 14 Filed 11/13/17 Page 2 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Declaration of Leisa A. Wolf was filed with the Clerk 3 of the Court on November 13, 2017, using the CM/ECF system which will send notification of 4 such filing to the following: Edward A. Wicklund. 5 s/Leisa A. Wolf 6 LEISA A. WOLF Special Assistant U.S. Attorney 7 Office of the General Counsel 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 3 DECLARATION OF LEISA A. WOLF – [3:17-cv-00137] Case 3:17-cv-00137-TMB Document 14 Filed 11/13/17 Page 3 of 3

MOTION for Extension of Time to File Response/Reply as to {{12}} MOTION reversal and remand in a Social Security Appeal Unopposed by Nancy A. Berryhill.

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 LEISA A. WOLF 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) 615-3621 Fax: (206) 615-2531 11 leisa.wolf@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 PETER J. EBERTZ, Case No. 3:17-cv-00137-TMB 16 Plaintiff, 17 UNOPPOSED MOTION TO AMEND vs. THE SCHEDULING ORDER 18 NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. Defendant hereby moves, with no opposition from Plaintiff's counsel, that the scheduling 21 Order should be amended as follows for the reasons noted in the Declaration of Leisa A. Wolf: 22  Defendant shall file a response to Plaintiff's Motion on or before December 27, 2017; and 23  Plaintiff shall file the optional Reply on or before January 10, 2018. 24 Page 1 UNOPPOSED MOTION TO AMEND THE SCHEDULING ORDER - [3:17-cv-00137-TMB] 1 DATED this 13th day of December 2017. 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/Leisa A. Wolf LEISA A. WOLF 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) 615-3621 12 Fax: (206) 615-2531 leisa.wolf@ssa.gov 13 14 15 16 17 18 19 20 21 22 23 24 Page 2 UNOPPOSED MOTION TO AMEND THE SCHEDULING ORDER - [3:17-cv-00137-TMB] 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Defendant's Motion to Amend the Scheduling Order 3 and attached proposed Order were filed with the Clerk of the Court on December 13, 2017, using 4 the CM/ECF system, which will send notification of such filing to the following: Edward A. 5 Wickland, Esq. 6 7 s/Leisa A. Wolf LEISA A. WOLF 8 Special Assistant U.S. Attorney Office of the General Counsel 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 3 UNOPPOSED MOTION TO AMEND THE SCHEDULING ORDER - [3:17-cv-00137-TMB]

Proposed Order

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT FOR THE 8 DISTRICT OF ALASKA 9 PETER J. EBERTZ, Civil No. 3:17-cv-00137-TMB 10 Plaintiff, 11 vs. PROPOSED ORDER AMENDING THE SCHEDULING ORDER 12 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 13 Defendant. 14 Based on Defendant's Motion, and that Plaintiff has no opposition, it is hereby 15 ORDERED that the Scheduling Order shall be amended as follows: 16  Defendant shall have up to and including December 27, 2017, to file Defendant's 17 Response; and 18  Plaintiff shall have up to and including January 10, 2018, to file a Reply brief. 19 DATED this _____ day of, 2017. 20 ___________________________________ 21 UNITED STATES DISTRICT JUDGE 22 23 24 Page 1 PROPOSED ORDER AMENDING THE SCHEDULING ORDER - [3:17-cv-00137-TMB] 1 Presented by: 2 s/ Leisa A. Wolf 3 LEISA A. WOLF Special Assistant U.S. Attorney 4 Office of the General Counsel Social Security Administration 5 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 6 Telephone: (206) 615-3621 Fax: (206) 615-2531 7 leisa.wolf@ssa.gov 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 2 PROPOSED ORDER AMENDING THE SCHEDULING ORDER - [3:17-cv-00137-TMB]

DECLARATION of Leisa A. Wolf re {{16}} MOTION for Extension of Time to File Response/Reply as to {{12}} MOTION reversal and remand in a Social Security Appeal Unopposed by Nancy A. Berryhill.

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 richard.pomeroy@usdoj.gov 6 LEISA A. WOLF 7 Special Assistant U.S. Attorney Office of the General Counsel 8 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 9 Seattle, WA 98104-7075 Telephone: (206) 615-3621 10 Fax: (206) 615-2531 leisa.wolf@ssa.gov 11 Of Attorneys for Defendant 12 IN THE UNITED STATES DISTRICT COURT 13 FOR THE DISTRICT OF ALASKA 14 15 PETER J. EBERTZ, Case No. 3:17-cv-00137-TMB 16 Plaintiff 17 vs. DECLARATION OF LEISA A. WOLF 18 NANCY A. BERRYHILL, Acting Commissioner of Social Security 19 Defendant 20 I, Leisa A. Wolf, declare as follows: 21 1. I am Assistant Regional Counsel with the Social Security Administration, Office of the 22 General Counsel, in Seattle, Washington. 23 2. I represent the Defendant, Nancy A. Berryhill, Acting Commissioner of Social Security. 24 Page 1 DECLARATION OF LEISA A. WOLF – [3:17-cv-00137-TMB] 1 3. I am continuing my analysis of this case and need further time to come to the appropriate 2 resolution. 3 4. For this reason, I am requesting a 14-day extension. 4 5. Defendant's responsive brief is due in Court on December 13, 2017, accordingly I ask 5 this Court to grant an extension until December 27, 2017, in order to facilitate a 6 meaningful discussion. 7 6. Plaintiff's counsel has no objection to this request. 8 7. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true 9 and correct. 10 Executed this 13th day of December 2017. 11 By: s/ Leisa A. Wolf 12 LEISA A. WOLF Special Assistant U.S. Attorney 13 14 15 16 17 18 19 20 21 22 23 24 Page 2 DECLARATION OF LEISA A. WOLF – [3:17-cv-00137-TMB] 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Declaration of Leisa A. Wolf was filed with the Clerk 3 of the Court on December 13, 2017, using the CM/ECF system, which will send notification of 4 such filing to the following: Edward A. Wickland, Esq. 5 s/ Leisa A. Wolf 6 LEISA A. WOLF Special Assistant U.S. Attorney 7 Office of the General Counsel 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 3 DECLARATION OF LEISA A. WOLF – [3:17-cv-00137-TMB]

MOTION to Remand Stipulated by Nancy A. Berryhill.

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 LEISA A. WOLF 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) 615-3621 Fax: (206) 615-2531 11 leisa.wolf@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 PETER J. EBERTZ, Case No. 3:17-cv-00137-TMB 16 Plaintiff, 17 STIPULATED MOTION FOR REMAND vs. 18 NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. 21 The parties, acting through their respective counsel, hereby stipulate and agree that the 22 above-captioned case be reversed and remanded for further administrative proceedings including 23 a de novo hearing pursuant to sentence four of 42 U.S.C. § 405(g). On remand, an administrative 24 Page 1 STIPULATED MOTION FOR REMAND - [3:17-cv-00137-TMB] 1 law judge (ALJ) shall offer Plaintiff an opportunity for a new hearing, further develop the record 2 and update the medical records, and issue a new decision. The ALJ shall also: 3  Reevaluate the nature and severity of Plaintiff's medically determinable impairments, 4 singly and combined, and assess whether each or their combination meets or equals a Listing, especially Listing 13.24, with the assistance of medical expert testimony; and 5  Reassess the remaining steps of the sequential evaluation process with the assistance of vocational expert evidence with the assistance of vocational expert, if necessary. 6 The parties agree that reasonable attorney fees will be awarded under the Equal Access to Justice 7 Act, 28 U.S.C. § 2412, upon proper request to the Court. 8 DATED this 19th day of December 2017. 9 Respectfully submitted, 10 11 s/Leisa A. Wolf LEISA A. WOLF 12 Special Assistant United States Attorney Office of the General Counsel 13 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 14 Seattle, WA 98104-7075 Telephone: (206) 615-3621 15 Fax: (206) 615-2531 leisa.wolf@ssa.gov 16 DATED this 19th day of December 2017. 17 18 s/Leisa A. Wolf for EDWARD A. WICKLUND, ESQ. 19 Attorney for Plaintiff (Per Authorization) 20 21 22 23 24 Page 2 STIPULATED MOTION FOR REMAND - [3:17-cv-00137-TMB] 1 2 CERTIFICATE OF SERVICE 3 I hereby certify that the foregoing Stipulated Motion for Remand was filed with the Clerk 4 of the Court on December 19, 2017, using the CM/ECF system, which will send notification of 5 such filing to the following: Edward A. Wicklund, Esq. 6 s/Leisa A. Wolf 7 LEISA A. WOLF Special Assistant United States Attorney 8 Office of the General Counsel 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 3 STIPULATED MOTION FOR REMAND - [3:17-cv-00137-TMB]

Proposed Order

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT FOR THE 8 DISTRICT OF ALASKA 9 PETER J. EBERTZ, Civil No. 3:17-cv-00137-TMB 10 Plaintiff, 11 vs. PROPOSED JUDGMENT AND ORDER OF REMAND 12 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 13 Defendant. 14 15 Based on the stipulation of the parties, it is ORDERED that the case be REVERSED and 16 REMANDED for further administrative proceedings including a de novo hearing pursuant to 17 sentence four of 42 U.S.C. § 405(g). On remand, an administrative law judge (ALJ) shall offer 18 Plaintiff an opportunity for a new hearing, further develop the record and update the medical 19 records, and issue a new decision. The ALJ shall also: 20  Reevaluate the nature and severity of Plaintiff's medically determinable impairments, singly and combined, and assess whether each or their combination 21 meets or equals a Listing, especially Listing 13.24, with the assistance of medical expert testimony; and 22  Reassess the remaining steps of the sequential evaluation process with the assistance of vocational expert evidence with the assistance of vocational expert, 23 if necessary. 24 Page 1 PROPOSED JUDGMENT AND ORDER OF REMAND - [3:17-cv-00137-TMB] 1 The parties agree that reasonable attorney fees will be awarded under the Equal Access to Justice 2 Act, 28 U.S.C. § 2412, upon proper request to the Court. 3 DATED this _____ day of, 2017. 4 5 ___________________________________ UNITED STATES DISTRICT JUDGE 6 7 Presented by: 8 s/ Leisa A. Wolf 9 LEISA A. WOLF Special Assistant U.S. Attorney 10 Office of the General Counsel Social Security Administration 11 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 12 Telephone: (206) 615-3621 Fax: (206) 615-2531 13 leisa.wolf@ssa.gov 14 15 16 17 18 19 20 21 22 23 24 Page 2 PROPOSED JUDGMENT AND ORDER OF REMAND - [3:17-cv-00137-TMB]

Proposed Order

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA PETER J. EBERTZ, Plaintiff, Case No. 3:17-cv-00137-TMB -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, Peter J. Ebertz, 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 Five Thousand Four Hundred and Seventy-Four Dollars and Eighty-Seven Cents ($5,474.87) 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 $5,051.31 for paralegal and attorney's fees under 28 U.S.C. § 2412(d); 2. Plaintiff is awarded $23.56 in expenses for Certified Mail for service of Summons and Complaint. 3. Plaintiff is awarded $400.00 in costs for the reimbursement of the Federal Court filing fee paid 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: ________________ ______________________________ Timothy M. Burgess United States District Judge [proposed Order proffer: Howard D. Olinsky; copy to Leisa A. Wolf]

Exhibit A-All Professional Time

Exhibit A Ledger Ebertz, Peter John Date  Subject Hours Timekeeper 4/26/2017 Files received, reviewed and processed from referral source for Attorney review 0.6 Gifford, Kyrsten 4/26/2017 Correspondence to Client re: Referral acknowledgment letter 0.2 Gifford, Kyrsten 4/26/2017 Telephone call with Client re: Debt check attempt, left voicemail 0 Lockwood, Tamica 5/1/2017 Telephone call with Client re: Debt check, explained fdc process and EAJA 0.4 Lockwood, Tamica 5/22/2017 Review decisions and evidence to determine whether to appeal case 1 Olinsky, Howard D. 5/25/2017 Telephone conf. w/client re: In Forma Pauperis application, Left VM 0 Lockwood, Tamica 5/26/2017 Telephone conf. w/client re: IFP Completion, client needs to pay filing fee 0.3 Lockwood, Tamica 5/26/2017 FDC Prospect Packet prepared for client completion 0.6 Lockwood, Tamica 5/26/2017 FDC Packet Forms sent via Right Signature 0.2 Lockwood, Tamica 5/26/2017 Filing Fee paid via Law Pay to initiate civil court case 0.2 Lockwood, Tamica 5/26/2017 Telephone call w/ client re: signing packet / updated home address 0.1 Lockwood, Tamica 5/26/2017 FDC Packet Forms Returned via Right Signature, reviewed for completion 0.3 Lockwood, Tamica 6/19/2017 Draft complaint, proposed summons, civil cover sheet, and letter to clerk 0.6 Wicklund, Edward A. 6/19/2017 Email correspondence with clerk re: Case opening 0 Smith, Michael P. 6/20/2017 Draft and file motion to appear Pro Hac Vice 0 Wicklund, Edward A. 6/20/2017 Federal Court -Accept Letter - New FDC Filing 0.3 Smith, Michael P. 6/21/2017 Review summons issued (text notice only) 0.1 Wicklund, Edward A. 6/26/2017 Received and processed issued summons & order directing service 0.1 Smith, Michael P. 7/6/2017 Review text order granting motion to appear Pro Hac Vice 0 Wicklund, Edward A. 7/7/2017 Federal Court-Service of Process- Prepare Service packets USAO, OGC, AG 0.6 Callahan, Michelle 7/14/2017 Review notice of appearance by Richard L. Pomeroy o/b/o Nancy A. Berryhill 0.1 Wicklund, Edward A. 7/21/2017 Review scheduling order, calendar deadlines on task pad 0.3 Wicklund, Edward A. 7/21/2017 Review docket annotation re: Opening Brief Motion Misc. Relief, make note 0.1 Wicklund, Edward A. 8/2/2017 Federal Court- Service of Process- RESERVE OGC 0.2 Callahan, Michelle 8/9/2017 Review summons executed, record answer due date for monitoring 0.2 Wicklund, Edward A. 8/9/2017 Combine and file proof of service via CM / ECF 0.3 Callahan, Michelle 8/16/2017 Review notice of appearance by Leisa A. Wolf o/b/o Nancy A. Berryhill 0.1 Wicklund, Edward A. 9/11/2017 Review Answer, note CAR has been lodged 0.2 Wicklund, Edward A. 9/22/2017 Combine, OCR, and live bookmark Federal Court Transcript (586 pages) 0.6 Gifford, Kyrsten 9/22/2017 Preliminary review of transcript - assign Attorney writer 0.4 Wicklund, Edward A. 10/6/2017 Review certified administrative record and take notes 4.7 Palmer, Melissa 10/9/2017 Formatting brief and writing factual sections 5.6 Palmer, Melissa 10/10/2017 Writing arguments and legal research 4.7 Palmer, Melissa 10/11/2017 Senior attorney review, edit and review, suggest further editing 1.1 Wicklund, Edward A. 10/11/2017 Implement suggested edits, finalize, and file (n/c for filing) 1 Palmer, Melissa 11/13/2017 Email correspondence w/OC re: First extension request to file brief 0.1 Wicklund, Edward A. 11/14/2017 Review motion and proposed order by Defendant for ext. of time 0 Wicklund, Edward A. 11/15/2017 Review text order granting first extension of time to file brief to Defendant 0.1 Wicklund, Edward A. 12/13/2017 Email correspondence w/OC re: Second extension request to file Defendant Brief 0.1 Wicklund, Edward A. 12/13/2017 Review motion and proposed order by Defendant for Second ext. of time 0.1 Wicklund, Edward A. 12/14/2017 Review text order granting second extension of time to file brief to Defendant 0.1 Wicklund, Edward A. 12/19/2017 Review motion and prop. order for stipulated remand 0.1 Wicklund, Edward A. 2/23/2018 Telephone call to Judge Burgess's Clerk re: No movement since stip 0.2 Persse, Shannon 29.80  (Type = Time) and (Client = Peter John Ebertz)    Date  Subject Hours Timekeeper 4/9/2018 Review order granting stipulated remand 0.1 Wicklund, Edward A. 4/13/2018 Telephone conf. w/ client re: Remand 0.3 Gifford, Kyrsten 4/17/2018 Federal Court-Remand Referral back to Referral Source 0.3 Graser, Jonnah 4/17/2018 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 7/5/2018 EAJA Preparation 1.5 Graser, Jonnah 7/5/2018 Review Timeslips Finalize EAJA Motion 0.5 Olinsky, Howard D. 7/5/2018 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Graser, Jonnah 29.80  (Type = Time) and (Client = Peter John Ebertz)   

Exhibit B-Attorney Time

Exhibit B Ledger Ebertz, Peter John Date  Subject Hours Timekeeper 5/22/2017 Review decisions and evidence to determine whether to appeal case 1 Olinsky, Howard D. 6/19/2017 Draft complaint, proposed summons, civil cover sheet, and letter to clerk 0.6 Wicklund, Edward A. 6/20/2017 Draft and file motion to appear Pro Hac Vice 0 Wicklund, Edward A. 6/21/2017 Review summons issued (text notice only) 0.1 Wicklund, Edward A. 7/6/2017 Review text order granting motion to appear Pro Hac Vice 0 Wicklund, Edward A. 7/14/2017 Review notice of appearance by Richard L. Pomeroy o/b/o Nancy A. Berryhill 0.1 Wicklund, Edward A. 7/21/2017 Review scheduling order, calendar deadlines on task pad 0.3 Wicklund, Edward A. 7/21/2017 Review docket annotation re: Opening Brief Motion Misc. Relief, make note 0.1 Wicklund, Edward A. 8/9/2017 Review summons executed, record answer due date for monitoring 0.2 Wicklund, Edward A. 8/16/2017 Review notice of appearance by Leisa A. Wolf o/b/o Nancy A. Berryhill 0.1 Wicklund, Edward A. 9/11/2017 Review Answer, note CAR has been lodged 0.2 Wicklund, Edward A. 9/22/2017 Preliminary review of transcript - assign Attorney writer 0.4 Wicklund, Edward A. 10/6/2017 Review certified administrative record and take notes 4.7 Palmer, Melissa 10/9/2017 Formatting brief and writing factual sections 5.6 Palmer, Melissa 10/10/2017 Writing arguments and legal research 4.7 Palmer, Melissa 10/11/2017 Senior attorney review, edit and review, suggest further editing 1.1 Wicklund, Edward A. 10/11/2017 Implement suggested edits, finalize, and file (n/c for filing) 1 Palmer, Melissa 11/13/2017 Email correspondence w/OC re: First extension request to file brief 0.1 Wicklund, Edward A. 11/14/2017 Review motion and proposed order by Defendant for ext. of time 0 Wicklund, Edward A. 11/15/2017 Review text order granting first extension of time to file brief to Defendant 0.1 Wicklund, Edward A. 12/13/2017 Email correspondence w/OC re: Second extension request to file Defendant Brief 0.1 Wicklund, Edward A. 12/13/2017 Review motion and proposed order by Defendant for Second ext. of time 0.1 Wicklund, Edward A. 12/14/2017 Review text order granting second extension of time to file brief to Defendant 0.1 Wicklund, Edward A. 12/19/2017 Review motion and prop. order for stipulated remand 0.1 Wicklund, Edward A. 4/9/2018 Review order granting stipulated remand 0.1 Wicklund, Edward A. 7/5/2018 Review Timeslips Finalize EAJA Motion 0.5 Olinsky, Howard D. 21.40  (Type = Time) and (Client = Peter John Ebertz) and ((Timekeeper = Olinsky, Howard D.) or (Timekeeper = Palmer, Melissa) or (Timekeeper = Wicklund, Edward ...   

Exhibit C-Paralegal Time

Exhibit C Ledger Ebertz, Peter John Date  Subject Hours Timekeeper 4/26/2017 Files received, reviewed and processed from referral source for Attorney review 0.6 Gifford, Kyrsten 4/26/2017 Correspondence to Client re: Referral acknowledgment letter 0.2 Gifford, Kyrsten 4/26/2017 Telephone call with Client re: Debt check attempt, left voicemail 0 Lockwood, Tamica 5/1/2017 Telephone call with Client re: Debt check, explained fdc process and EAJA 0.4 Lockwood, Tamica 5/25/2017 Telephone conf. w/client re: In Forma Pauperis application, Left VM 0 Lockwood, Tamica 5/26/2017 Telephone conf. w/client re: IFP Completion, client needs to pay filing fee 0.3 Lockwood, Tamica 5/26/2017 FDC Prospect Packet prepared for client completion 0.6 Lockwood, Tamica 5/26/2017 FDC Packet Forms sent via Right Signature 0.2 Lockwood, Tamica 5/26/2017 Filing Fee paid via Law Pay to initiate civil court case 0.2 Lockwood, Tamica 5/26/2017 Telephone call w/ client re: signing packet / updated home address 0.1 Lockwood, Tamica 5/26/2017 FDC Packet Forms Returned via Right Signature, reviewed for completion 0.3 Lockwood, Tamica 6/19/2017 Email correspondence with clerk re: Case opening 0 Smith, Michael P. 6/20/2017 Federal Court -Accept Letter - New FDC Filing 0.3 Smith, Michael P. 6/26/2017 Received and processed issued summons & order directing service 0.1 Smith, Michael P. 7/7/2017 Federal Court-Service of Process- Prepare Service packets USAO, OGC, AG 0.6 Callahan, Michelle 8/2/2017 Federal Court- Service of Process- RESERVE OGC 0.2 Callahan, Michelle 8/9/2017 Combine and file proof of service via CM / ECF 0.3 Callahan, Michelle 9/22/2017 Combine, OCR, and live bookmark Federal Court Transcript (586 pages) 0.6 Gifford, Kyrsten 2/23/2018 Telephone call to Judge Burgess's Clerk re: No movement since stip 0.2 Persse, Shannon 4/13/2018 Telephone conf. w/ client re: Remand 0.3 Gifford, Kyrsten 4/17/2018 Federal Court-Remand Referral back to Referral Source 0.3 Graser, Jonnah 4/17/2018 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 7/5/2018 EAJA Preparation 1.5 Graser, Jonnah 7/5/2018 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Graser, Jonnah 8.40  (Type = Time) and (Client = Peter John Ebertz) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Gifford, Kyrsten) or (Timekeeper = Graser, Jonnah) or (...   

Exhibit D-Expenses

Exhibit D Ledger Ebertz, Peter John Date  Subject Amount Timekeeper 7/7/2017 Federal Court-Service of Process- Prepare Service packets USAO, OGC, AG $17.67 Callahan, Michelle 8/2/2017 Federal Court- Service of Process- RESERVE OGC $5.89 Callahan, Michelle $23.56  (Client = Peter John Ebertz) and (Type = Cost)   

Exhibit E- Costs

Exhibit E Ledger Ebertz, Peter John Date  Subject Amount Timekeeper 5/26/2017 Filing Fee paid via Law Pay to initiate civil court case $400.00 Olinsky, Howard D. $400.00  (Client = Peter John Ebertz) and ((Timekeeper = Olinsky, Howard D.) or (Timekeeper = Palmer, Melissa) or (Timekeeper = Wicklund, Edward A.)) and (Type = Fee)   

Exhibit F- Fee Agreement

Exhibit F 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 26, 2017 Signature: __________________________________ Claimant Name: Peter John Ebertz Claimant Social Security Number: 502-90-4722 Dated: __________ Signature: ___________________________________ Howard D. Olinsky, Esq.

Exhibit G-Affirmation and Waiver of Direct payment of EAJA fees

Exhibit G UNITED STATES DISTRICT COURT DISTRICT OF ALASKA ({[ERROR]} DIVISION) -------------------------------------------------------------- PETER JOHN EBERTZ, AFFIRMATION AND WAIVER OF DIRECT PAYMENT Plaintiff, OF EAJA FEES v. Civil Action No.: _________________ NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------------------------- Peter John Ebertz, 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 26, 2017. __________________________ Peter John Ebertz Plaintiff

Memorandum in Support

Edward A. Wicklund, Esq. Attorney for Plaintiff Pro hac vice Olinsky Law Group 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: twicklund@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA PETER J. EBERTZ, Plaintiff, Case No. 3:17-cv-00137 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. Ralph R. Beistline signed an Order on April 6, 2018 remanding this matter to the Commissioner for a calculation of benefits pursuant to Sentence Four of 42 U.S.C. § 405(g). (c) Judgment was entered on April 6, 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 $5,051.31; 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 $23.56; and 4. Awarding reimbursement of costs to the client in the amount of $400.00. I declare under the penalty of perjury that the foregoing is true and correct. Executed this July 5, 2018 Respectfully submitted, /s/ Edward A. Wicklund Edward A. Wicklund, Esq. Attorney for Plaintiff Pro hac vice Olinsky Law Group 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: twicklund@windisability.com To: Leisa A. Wolf, Esq. 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) 615-3621 Fax (206) 615-2531 Email: leisa.wolf@ssa.gov

Certificate of Service

Edward A. Wicklund, Esq. Attorney for Plaintiff Pro hac vice Olinsky Law Group 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: twicklund@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA PETER J. EBERTZ, Plaintiff, Case No. 3:17-cv-00137 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: Leisa A. Wolf, Esq. 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) 615-3621 Fax (206) 615-2531 Email: leisa.wolf@ssa.gov July 5, 2018 /s/ Edward A. Wicklund Edward A. Wicklund, Esq.

Attorney Fees

Edward A. Wicklund, Esq. Attorney for Plaintiff Pro hac vice Olinsky Law Group 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: twicklund@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA PETER J. EBERTZ, Plaintiff, Case No. 3:17-cv-00137 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 his 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 July 5, 2018 Respectfully submitted, /s/ Edward A. Wicklund Edward A. Wicklund, Esq. Attorney for Plaintiff Pro hac vice Olinsky Law Group 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: twicklund@windisability.com To: Leisa A. Wolf, Esq. 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) 615-3621 Fax (206) 615-2531 Email: leisa.wolf@ssa.gov

Declaration

Edward A. Wicklund, Esq. Attorney for Plaintiff Pro hac vice Olinsky Law Group 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: twicklund@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA PETER J. EBERTZ, Plaintiff, Case No. 3:17-cv-00137 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 April 6, 2018 that the above-entitled case be remanded for calculation of benefits, 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 spent in 2017 and 2018. 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 the 2017 rate for 21.4 hours of work performed, they total $4,211.31. 6. I am also requesting $100.00 per hour for 8.4 hours of paralegal time equaling $840.00. I am requesting $5,051.31 for Counsel fees which includes both attorney and paralegal time. 7. 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 in 2017 and 2018 (Exhibit B); the total compensable time spent by paralegals (Exhibit C). The attorneys involved in this case are as follows: Howard D. Olinsky, Esq., Melissa Palmer, Esq., and Edward A. Wicklund, Esq. The paralegals involved in working on this case are as follows: Michael Smith, Kyrsten Gifford, Jonnah Graser, Shannon Persse, and Tamica Lockwood. 8. I am requesting reimbursement of expenses in the amount $23.56 for Certified Mail for service of the summons and complaint as shown in Exhibit D. 9. I am requesting reimbursement of costs in the amount of $400.00 for the Federal Court filing fee paid to initiate this civil action, to be reimbursed to the client as shown in Exhibit E. 9. 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. 10. Attached is the Fee Agreement duly executed by the plaintiff (Exhibit F). Waiver of Direct Payment of EAJA Fees 11. Attached is an Affidavit and Waiver of Direct Payment duly executed by the plaintiff (Exhibit G). 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 July 5, 2018 Respectfully submitted, /s/ Edward A. Wicklund Edward A. Wicklund, Esq. Attorney for Plaintiff Pro hac vice Olinsky Law Group 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: twicklund@windisability.com To: Leisa A. Wolf, Esq. 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) 615-3621 Fax (206) 615-2531 Email: leisa.wolf@ssa.gov

Response to Motion (Non-Opposition)

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 LEISA A. WOLF 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) 615-3621 Fax: (206) 615-2531 11 leisa.wolf@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 PETER J. EBERTZ, Case No. 3:17-cv-00137-TMB 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 Defendant, the Commissioner of Social Security, files this response to Plaintiff's request 22 for an award of attorney's fees pursuant to 28 U.S.C. § 2412 as set forth in Plaintiff's Motion 23 (Docket #21 and #22). The Commissioner has given substantive consideration to the merits of 24 Page 1 DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR ATTORNEY FEES - [3:17-cv-00137-TMB] 1 Plaintiff's request and found no basis to object. Therefore, Defendant has no objection to this 2 request and will defer to the Court's assessment of the matter. 3 DATED this 17th day of July 2018. 4 Respectfully submitted, 5 BRYAN SCHRODER 6 United States Attorney 7 RICHARD L. POMEROY Assistant United States Attorney 8 MATHEW W. PILE 9 Acting Regional Chief Counsel, Seattle, Region X 10 s/Leisa A. Wolf LEISA A. WOLF 11 Special Assistant United States Attorney Office of the General Counsel 12 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 13 Seattle, WA 98104-7075 Telephone: (206) 615-3621 14 Fax: (206) 615-2531 leisa.wolf@ssa.gov 15 16 17 18 19 20 21 22 23 24 Page 2 DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR ATTORNEY FEES - [3:17-cv-00137-TMB] 1 2 CERTIFICATE OF SERVICE 3 I hereby certify that the foregoing Defendant's Response to Plaintiff's Motion for 4 Attorney Fees was filed with the Clerk of the Court on July 17, 2018, using the CM/ECF system, 5 which will send notification of such filing to the following: Edward A. Wicklund, Esq. 6 s/Leisa A. Wolf 7 LEISA A. WOLF Special Assistant U.S. Attorney 8 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 RESPONSE TO PLAINTIFF'S MOTION FOR ATTORNEY FEES - [3:17-cv-00137-TMB]

Order on Motion for Attorney Fees

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA PETER J. EBERTZ, Plaintiff, Case No. 3:17-cv-00137-TMB vs. ORDER GRANTING PLAINTIFF'S NANCY A. BERRYHILL, Deputy UNOPPOSED MOTION FOR Commissioner of Social Security for ATTORNEY FEES Operations, Defendant. I. INTRODUCTION Plaintiff Peter J. Ebertz, by his attorney, Edward A. Wicklund, of Olinsky Law Group, moves the Court for an award to be paid pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. §§ 1920, 2412.1 Defendant Nancy A. Berryhill (the "Commissioner") does not oppose this request and "defers to the Court's assessment of the matter."2 Accordingly, and for the reasons that follow, Plaintiff's Motion for Attorney Fees is GRANTED. II. BACKGROUND Ebertz initiated this action on June 19, 2017 after exhausting his administrative remedies.3 On April 6, 2018, the Court reversed and remanded for further administrative 1 Docket 21; Docket 22 (Decl. of Edward A. Wicklund). 2 Docket 23 (Def.'s Response). 3 Docket 1 (Compl.). Case No. 3:17-cv-00137-TMB, Ebertz v. Berryhill Order Page 1 of 5 proceedings including a de novo hearing, under the fourth sentence of 42 U.S.C. § 405(g).4 Ebertz filed the pending Motion for Attorney Fees on July 5, 2018,5 and the Commissioner responded on July 17, 2018.6 III. DISCUSSION In any civil action brought by or against the United States, the EAJA provides that "a court shall award to a prevailing party other than the United States fees and other expenses. . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust."7 The fee applicant has the burden of establishing his entitlement to an award and documenting the appropriate hours expended,8 and the United States has the burden of proving its position was substantially justified.9 Recoverable fees and expenses must be reasonable and "based upon prevailing market rates for the kind and quality of the services furnished."10 Fees may not 4 Docket 20 (Judgment and Order). 5 Docket 21. 6 Docket 23. 7 28 U.S.C. § 2412(d)(1)(A). 8See, e.g., Constantino v. Berryhill, No. 2:17-CV-00829-DWC, 2018 WL 1211755, at *1 (W.D. Wash. Mar. 8, 2018) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)); see also 28 U.S.C. § 2412(d)(1)(B) (setting out prescriptions on what an applicant must show to receive award). 9See Scarborough v. Principi, 541 U.S. 401, 414 (2004); accord Hardisty v. Astrue, 592 F.3d 1072, 1076 n.2 (9th Cir. 2010) (citing Flores v. Shalala, 49 F.3d 562, 569–70 (9th Cir. 1995)). 10 28 U.S.C. § 2412(d)(2)(A). Case No. 3:17-cv-00137-TMB, Ebertz v. Berryhill Order Page 2 of 5 exceed the EAJA statutory maximum rate,11 which, in the Ninth Circuit, was $196.79 per hour in 2017.12 In this case, the Court finds that Ebertz is entitled to an award under the EAJA. He is the prevailing party in this civil action,13 and his net worth did not exceed $2,000,000 when this action was filed.14 There are no special circumstances which render an EAJA award in this matter unjust, nor has the Commissioner made any attempt at showing substantial justification.15 The Court further finds that the amount of the award requested by Ebertz is reasonable. Ebertz requests $5,051.31 for 21.4 hours of attorney work and 8.4 hours of paralegal time, expenses in the amount of $23.56 for Certified Mail, and reimbursement of $400.00 for the Federal Court filing fee to initiate the action, under 28 U.S.C. § 2412(d).16 Taking into account "the facts of [this] case,"17 the Court finds the award request to be both reasonable and recoverable. The requested fee rate is at or below the Ninth Circuit's statutory maximum rate, adjusted for cost of living increases, and other 11 Id. 12 United States Court for the Ninth Circuit, "Statutory Maximum Rates Under the Equal Access to Justice Act," available at http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 (last visited July 23, 2018); see also Ninth Cir. R. 39-1.6 advisory committee's note. 13 See Docket 20. 14 Docket 21. 15 Docket 21; Docket 23. 16 Docket 22. 17 Hensley, 461 U.S. at 429, 433 n.7. Case No. 3:17-cv-00137-TMB, Ebertz v. Berryhill Order Page 3 of 5 courts have allowed certified mailing costs as part of an EAJA award.18 Further, the Commissioner did not raise any objection regarding the $400.00 Federal Court filing fee.19 IV. CONCLUSION For the above stated reasons, the Court GRANTS the Motion for Attorney's Fees, filed at Docket 21. Ebertz is awarded $5,051.31 for paralegal and attorney fees, and expenses and costs in the amount of $423.56, for a total award of $5,474.87, pursuant to the EAJA and consistent with Astrue v. Ratliff.20 The Commissioner shall contact the Department of Treasury to determine if this award is subject to any offset. If the Department of Treasury verifies that Ebertz does not owe a debt, the Commissioner shall honor Ebertz's assignment of his EAJA award and pay the above amount directly to Ebertz's attorney, Edward A. Wicklund.21 If there is an offset, any remainder shall be made payable to Ebertz, based on the Department of the Treasury's Offset Program and standard practices. Whether the check is made payable to Ebertz or to his attorney, the check shall be mailed to his counsel Edward A. Wicklund, Olinsky Law Group, 300 South State Street, Suite 420, Syracuse, New York 13202. 18 See Int'l Woodworkers of America v. Donovan, 792 F.2d 762, 767 (9th Cir. 1985); Garrison v. Comm'r of Social Sec., No. 1:13-cv-01671-HZ, 2015 WL 630869, at *2 (D. Or. Feb. 10, 2015). 19 Docket 23. 20 560 U.S. 586 (2000). 21 See Docket 22-7. Case No. 3:17-cv-00137-TMB, Ebertz v. Berryhill Order Page 4 of 5 IT IS SO ORDERED. Dated at Anchorage, Alaska, this 25th day of July, 2018. /s/ Timothy M. Burgess TIMOTHY M. BURGESS UNITED STATES DISTRICT JUDGE Case No. 3:17-cv-00137-TMB, Ebertz v. Berryhill Order Page 5 of 5

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Description
1
06/19/2017
COMPLAINT against Nancy A. Berryhill (Filing fee $400/receipt #ANC013295.), filed by Peter John Ebertz.
1
Exhibit A Notice of Appeals Council Action
1 Attachment
2
06/19/2017
Civil Cover Sheet.
3
06/20/2017
Unissued summons re Defendant Nancy Berryhill
1
Unissued Summons re Defendant U.S. Attorney General
2
Unissued Summons re Defendant U.S. Attorney
2 Attachments
06/20/2017
Summons Issued as to Nancy A. Berryhill, U.S. Attorney and U.S. Attorney General (Text entry; no document attached.)
4
06/20/2017
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--2350807.) by Peter John Ebertz.
1
Certificate of Good Standing
1 Attachment
5
07/03/2017
TMB TEXT ORDER GRANTING 4 Motion for Leave to Appear as Pro Hac Vice (Non-Resident). The application to appear as pro hac vice by Edward A. Wicklund, at docket 4, is authorized under D.Ak. L.R. 83.1(d). (JDS, CHAMBERS STAFF)
6
07/14/2017
NOTICE of Appearance by Richard L. Pomeroy on behalf of Nancy A. Berryhill
7
07/20/2017
SOCIAL SECURITY SCHEDULING ORDER: agency record due 60 days after def initial appearance. 30 days after record is file opening brief due, answering brief due 30 days, reply brief due 14 days. If mot to remand is filed response due 14 days. Signed by Judge Timothy M. Burgess on 7/20/17.
07/20/2017
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
08/09/2017
SUMMONS Returned Executed by Peter John Ebertz. Nancy A. Berryhill served on 8/4/2017, answer due 10/3/2017.
9
08/15/2017
NOTICE of Appearance by Leisa A. Wolf on behalf of Nancy A. Berryhill
10
09/11/2017
ANSWER to 1 Complaint by Nancy A. Berryhill.
11
09/11/2017
Notice of Lodging Administrative Record
1
001 Certification Page
2
002 Court Transcript Index
3
003 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable
4
004 Payment Documents and Decisions
5
005 Jurisdictional Documents and Notices
6
006 Non Disability Related Development
7
007 Disability Related Development
8
008 Medical Records Part 1
9
009 Medical Records Part 2
9 Attachments
12
10/11/2017
MOTION reversal and remand in a Social Security Appeal by Peter John Ebertz.
13
11/13/2017
MOTION for Extension of Time to File Response/Reply as to 12 MOTION reversal and remand in a Social Security Appeal Unopposed by Nancy A. Berryhill.
1
Proposed Order
1 Attachment
14
11/13/2017
DECLARATION of Leisa A. Wolf re 13 MOTION for Extension of Time to File Response/Reply as to 12 MOTION reversal and remand in a Social Security Appeal Unopposed by Nancy A. Berryhill.
15
11/14/2017
TMB TEXT ORDER GRANTING 13 Unopposed Motion for Extension of Time to File Response/Reply re 12 Motion Reversal and Remand in a Social Security Appeal. IT IS HEREBY ORDERED that the Defendant shall have up to and including December 13, 2017, to file a response; and Plaintiff shall have up to and including December 27, 2017, to file a reply brief. (JDS, CHAMBERS STAFF)
16
12/13/2017
MOTION for Extension of Time to File Response/Reply as to 12 MOTION reversal and remand in a Social Security Appeal Unopposed by Nancy A. Berryhill.
1
Proposed Order
1 Attachment
17
12/13/2017
DECLARATION of Leisa A. Wolf re 16 MOTION for Extension of Time to File Response/Reply as to 12 MOTION reversal and remand in a Social Security Appeal Unopposed by Nancy A. Berryhill.
18
12/14/2017
TMB TEXT ORDER GRANTING 16 Unopposed Motion for Extension of Time to File Response/Reply re 12 Defendant shall have up to and including December 27, 2017 to file Defendant's Response; and Plaintiff shall have up to and including January 10, 2018 to file a Reply. (JDS, CHAMBERS STAFF)
19
12/19/2017
MOTION to Remand Stipulated by Nancy A. Berryhill.
1
Proposed Order
1 Attachment
20
04/06/2018
JUDGMENT/ORDER: The Stipulated Motion to Remand at Docket [19] is GRANTED. Based on the stipulation of the parties, it is ORDERED that the case be REVERSED and REMANDED for further administrative proceedings. IT IS FURTHER ORDERED that Plaintiff's Motion for Reversal and Remand at Docket [12] is DENIED AS MOOT. Signed by Judge Timothy M. Burgess on 4/6/2018. (JDS, CHAMBERS STAFF) Modified on 4/12/2018 (Additional attachment(s) added on 7/27/2018: # (1) judgment w/atty fees and costs added and redistributed on 7/27/18.)
21
07/05/2018
Attorney Fees
1
Proposed Order
1 Attachment
22
07/05/2018
Declaration
1
Exhibit A-All Professional Time
2
Exhibit B-Attorney Time
3
Exhibit C-Paralegal Time
4
Exhibit D-Expenses
5
Exhibit E- Costs
6
Exhibit F- Fee Agreement
7
Exhibit G-Affirmation and Waiver of Direct payment of EAJA fees
8
Memorandum in Support
9
Certificate of Service
9 Attachments
23
07/17/2018
Response to Motion (Non-Opposition)
24
07/25/2018
Order on Motion for Attorney Fees
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