Eveland v. Colvin
Court Docket Sheet

District of Arizona

2:2016-cv-02840 (azd)

OPENING BRIEF by Angela C Eveland.

Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 1 of 20 Howard D. Olinsky, Esq. 1 Admitted Pro Hac Vice 2 Olinsky Law Group One Park Place 3 300 South State Street, Suite 420 Syracuse, NY 13202 4 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 5 holinsky@windisability.com 6 Attorney for Plaintiff Angela C. Eveland 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 DISTRICT OF ARIZONA 11 Angela C. Eveland, 12 Plaintiff, Civil No. 2:16-cv-02840-SRB 13 vs. 14 PLAINTIFF’S BRIEF Carolyn W. Colvin, 15 Acting Commissioner of Social Security, 16 17 Defendant 18 PLAINTIFF’S OPENING BRIEF 19 IN SUPPORT OF A SOCIAL SECURITY APPEAL 20 STATEMENT OF THE ISSUES 21 1. The ALJ’s decision to afford no weight to the opinion of treating psychologist Dr. Somershoe is not supported by substantial evidence. 22 2. The RFC determination is not supported by substantial evidence because the ALJ 23 failed to account for the evidence of limitations related to impairments the ALJ found both severe and non-severe. 24 25 26 27 1 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 2 of 20 1 STATEMENT OF THE CASE 2 Plaintiff Angela C. Eveland applied for Disability Insurance Benefits and 3 Supplemental Security Income on July 11, 2012 and July 17, 2012 respectively, alleging 4 disability beginning February 24, 2012 due to migraines, anxiety, chronic fatigue 5 syndrome, short bowel syndrome, chronic diarrhea, pain in her right hand, a liver tumor, 6 7 knee pain, chronic nausea, and arthritis. Administrative Transcript ("T") 19, 217. These 8 applications were denied initially on June 18, 2013 and on reconsideration on November 9 8, 2013. T 19. Eveland later amended her alleged onset date to January 1, 2014. T 19, 10 123. After a hearing, ALJ Thomas Cheffins found that Eveland suffered from severe 11 impairments of migraine headaches, chronic fatigue syndrome, a tumor in the lower 12 section of her short bowel, pancreatitis, a liver tumor, affective disorder, and anxiety 13 disorder with panic, none of which met or equaled the severity of a listed impairment. T 14 15 21-23. The ALJ found that Eveland retained the ability to perform a full range of work at 16 all exertional levels with brief access to bathroom every 2 to 2.5 hours; a fixed work 17 location with easy access to a bathroom; the ability to wear incontinence pads; and the 18 abilities to complete 1-2 step instructions, concentrate and persist on tasks for 2 hours at a 19 time, carry out simple instructions, make simple work decisions, and work with things 20 and data but not people. T 23. Based on this RFC and the testimony of the vocational 21 expert ("VE"), the ALJ concluded that Eveland could perform other work in the national 22 23 economy as a nut sorter, bakery worker, and hand packer and was not disabled. T 28. On 24 June 21, 2016, the Appeals Council denied review, making the ALJ’s decision the final 25 Agency decision. T 7-9. This Court has jurisdiction. 42 U.S.C. §§ 405(g), 1383(c)(3). 26 27 2 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 3 of 20 STATEMENT OF THE FACTS 1 Eveland was born in 1966, making her 47 years old at her amended alleged onset 2 date and 49 years old at the date of the ALJ’s decision. T 19, 27, 29, 123-24. Eveland 3 reported completing a 12th grade education in 1984 with medical assistance training in 4 2005. T 128. The ALJ found she had past work as a shipping and receiving clerk, 5 6 material handler, medical billing record coder, adult education teacher, housekeeper, and 7 housekeeping assistant manager. T 27. 8 Hearing Testimony 9 At the hearing on December 1, 2014, Eveland testified she missed too many days 10 due to her health problems at her last job and was fired when she had to leave for a 11 medical emergency for her husband. T 1603. While working there, stress caused diarrhea 12 flares with cramping and her medications "knocked her out." T 1605-06. Her short 13 bowel symptoms are worse now than they were prior to her surgery in October 2014; she 14 15 eats only small meals, has to get constant blood work to check her nutrition, and has 16 severe diarrhea. T 1611. Even prior to the surgery she was having to use the restroom 7 17 to 10 times per day. Id. Her diarrhea can happen anytime, but particularly after meals. T 18 1619-20. She experiences bowel symptom flares when dealing with her mental health 19 therapy or anxiety. T 1612. Her anxiety makes her frazzled, she cannot concentrate, gets 20 upset over criticism, and has hypervigilance. T 1606. Anxiety has gotten worse now that 21 therapy is helping her remember more memories of her rape. T 1607. Anxiety causes 22 23 symptoms such as pounding heart, a feeling like she cannot breathe; these symptoms 24 occur a few times per day. Id. Medications help the anxiety but make her groggy, tired, 25 and forgetful. T 1609-10. In terms of daily activities, she can go by herself to a drive-26 27 3 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 4 of 20 thru or little market for food, but goes most places with her husband and only at times 1 2 when there will be fewer people around. T 1614-15. She, her husband, and her husband’s 3 son share the household chores. T 1617. She used to take care of her husband when he 4 has seizures, but he has been better and she has not had to do much. T 1615-17. 5 The VE testified Eveland could perform work as a hand packager, nut sorter, and 6 bakery worker with the limitations included in the RFC. T 1624-26. But the VE also 7 testified that there would be no work she could perform if the limitations from Dr. 8 Somershoe’s opinion were adopted. T 1628. The VE testified that employers would 9 10 tolerate up to one absence per month. T 1629. 11 Medical Evidence Given the volume of evidence in the record, this summary will focus primarily on 12 evidence from after the amended alleged onset date of January 1, 2014. T 19, 123. 13 14 On February 18, 2013, consultative examiner Brian Briggs, M.D., noted that 15 Eveland reported limitations resulting from diarrhea, short bowel syndrome, migraines, 16 and anxiety. T 201. He noted "no significant objective clinical findings" and opined that 17 her impairments would not impose limitations for 12 continuous months. T 202-04. On 18 April 20, 2013, consultative examiner Kenneth Littlefield, Psy.D., noted that Eveland 19 displayed psychomotor agitation, and appeared anxious. T 206. Eveland reported anxiety 20 particularly in social situations, depression, a lack of trust of people, and a history of rape 21 22 and sexual trauma. T 207. Dr. Littlefield opined that Eveland would have difficulty 23 sustaining attention during a regular work shift due to PTSD; her anxiety was likely to 24 inhibit her willingness to work in coordination with others and sustain an ordinary 25 routine; she is likely to have difficulty interacting appropriately with the general public, 26 27 4 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 5 of 20 asking simple questions, and getting along with coworkers; she might have difficulty 1 2 responding to supervisory criticism; and would likely need emotional support to travel in 3 unfamiliar places and responding to changes in work setting. T 210-11. 4 On June 21, 2013, Derek Landan, M.D., provided physical and mental opinion 5 forms. T 506-10. Dr. Landan, who indicated he had been treating Eveland for 8 years, 6 opined she would constantly experience symptoms severe enough to interfere with her 7 attention and concentration due to abdominal pain, diarrhea, and malabsorption. T 506. 8 He opined she could sit for 30 minutes at one time and 1 to 2 hours total; stand or walk 9 10 for 10 minutes at one time and one hour total; required the abilities to lie down or recline, 11 shift positions at will, and take unscheduled breaks hourly; lift and carry less than 10 12 pounds occasionally; and would likely be absent more than 4 times per month due to 13 impairments and treatment. T 506-07. Dr. Landan also opined that Eveland had extreme 14 limitations in the abilities to sustain attention and concentration for extended periods and 15 perform activities within a schedule, maintain regular attendance, and be punctual. T 508. 16 Dr. Landan additionally opined she would have marked limitation in the abilities to 17 18 understand, remember, and carry out detailed instructions; perform at a consistent pace 19 with a standard number and length of rest periods; interact appropriately with the general 20 public; and travel in unfamiliar places or use public transportation. T 508-10. 21 A rating decision from the Veterans Administration indicated she was found 5 22 percent disabled as a result of posttraumatic stress disorder ("PTSD"). T 193, 1465-69. 23 An MRI of the right knee from December 11, 2013 showed slight narrowing compared to 24 25 the lateral compartment but was otherwise unremarkable. T 758. On December 12, 2013, 26 Eveland reported a sore throat and difficulty swallowing since a gastro-procedure, as well 27 5 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 6 of 20 as abdominal pain with 3 loose stool bowel movements per day; she was noted to appear 1 2 tired on examination. T 1392. On December 16, 2013, Eveland reported her knee brace 3 did not fit properly – which caused more pain – and that her knee swelled and gave way. 4 T 1389. Gregory Herring, M.D., observed limited right knee range of motion, pain with 5 flexion, patella and medial joint line tenderness, moderate-to-large effusion, and 6 moderate lateral laxity. T 1390-91. Treatment notes from December 23 to 25, 2013 7 showed an episode of severe generalized body aches with weakness, slow speech, 8 difficulty thinking, and altered mentation; she was observed to have generalized muscle 9 10 tenderness to palpation, appeared sedated, and had slow responses. T 1387-1385. 11 On January 2, 2014, Eveland reported she was still feeling edgy and experienced 12 nightmares with panic attacks 1 to 2 times per week even with her meds; however, she 13 had a decreased startle response and less hypervigilance. T 1371. On January 6, 2014, 14 Eveland was noted to be working on recalling memories of her traumatic events and she 15 reported having a panic attack after seeing a man who looked like one of her rapists; 16 treating psychologist Sherrie Somershoe, Psy.D., observed she was slightly anxious with 17 18 an anxious mood and congruent affect. T 1366-67. On January 13, 2014, Dr. Somershoe 19 noted Eveland experienced anger and anxiety in response to exposure to things that 20 reminded her of her rape, though she was overall more calm. Dr. Somershoe noted she 21 experienced intrusive traumatic memories. T 1359-60. 22 On January 15, 2014, Eveland was noted to be tearful with right abdominal pain 23 radiating to her back. T 1350. The next day, it was noted she experienced lots of 24 25 complications after swallowing fluticasone for a GI procedure and she was observed to 26 be anxious. T 1352. An upper GI endoscopy was normal. T 1338. An MRI of the right 27 6 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 7 of 20 knee from February 4, 2014 showed some patellar tendinopathy. T 744-45. On February 1 2 12, 2014, Eveland reported continued right knee pain with a feeling of swelling and 3 instability. T 1318. Christopher Cranford, M.D., observed diffuse tenderness to palpation 4 as well as pain with overhead motion in the right shoulder and some tenderness in the 5 bicep and acromioclavicular regions. Id. On February 13, 2013, Eveland reported 6 increasing right upper quadrant pain with intermittent yellowing of her skin and eyes; she 7 noted that eating triggered diarrhea. T 1315. Dr. Landan observed diffuse tenderness in 8 the right upper abdominal quadrant. T 1316. On February 24, 2014, Dr. Somershoe 9 10 observed Eveland had an anxious mood, congruent affect, and intrusive traumatic thought 11 content. T 1305. 12 On March 11, 2014, Eveland had +3 pitting edema in the lower extremities with a 13 distended abdomen and distant breath sounds. T 1299. On March 14, 2014, edema was 14 +2 in the left leg and +1 in the right leg; she reported her arms felt swollen and painful to 15 touch. T 1297. MRI from March 15, 2014 showed mild posterior bulge in the lumbar 16 spine at the L4-L5 level without compromise of the thecal sac or neural foramina. T 17 18 1523. Eveland went to the emergency room on March 16, 2014 for a headache with light 19 sensitivity; she was observed to have +1 pitting edema in her lower extremities. T 1284-20 85, 1288. On March 19, 2014, she reported back pain after picking up her dog. T 1549. 21 She was observed as being in mild distress with tenderness to palpation at L4-L5 along 22 the paraspinal muscles and limited lumbar range of motion secondary to pain. T 1550. 23 On March 23 through March 26, 2014, Eveland reported abdominal pain with 24 25 black stool. T 1258, 1270. She was observed to have diffuse epigastric tenderness, 26 moderate diffuse abdominal tenderness and suprapubic tenderness to palpation. T 1235, 27 7 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 8 of 20 1251, 1260, 1266, 1273. A test was positive for blood in her stool, though there was no 1 2 evidence of an active GI bleed. T 739-40, 1266. On March 31, 2014, Eveland indicated 3 the emergency room had referred her for a rheumatological consultation due to joint pain 4 in her right elbow, hand, and wrist. T 1213. Elizabeth Chang, M.D., observed some 5 tenderness in the right lateral epicondyle, some mild edema on palpation of the left wrist, 6 tenderness over medial aspect of the right wrist, synovitis on palpation of all MCP joints 7 in the left hand, a positive right hand Finklestein test, tenderness in some finger joints, 8 and early Herberden and Bouchard deformities. T 1216. Dr. Chang concluded that the 9 10 exam strongly suggested tenosynovitis with repetitive motion injury. T 1219. 11 On May 12, 2014, Eveland was noted to have right upper quadrant tenderness to 12 palpation. T 1184. On May 22, 2014, she reported continuing abdominal pain as well as 13 an episode of hyperventilation with dizziness and dyspnea; she was observed to have 14 diffuse tenderness. T 1173, 1175. On May 21, 2014, Eveland reported left hip pain with 15 radiation into her buttock as well as that she had been using a knee brace for years. T 16 1168. Phillip Saba, M.D., observed pain with palpation over the left SI joint in her back, 17 18 noting that pain remained severe even with prescribed Vicodin. T 1162, 1172. At mental 19 therapy sessions on June 2 and 23, 2014, Eveland was noted to have some symptoms of 20 panic and anxiety and Dr. Somershoe observed she had an anxious mood, congruent 21 affect, and intrusive traumatic memories. T 1152-53, 1163-64. On June 28, 2014, 22 Eveland reported a headache that started 4 days prior with some nausea; she also reported 23 episodes of shortness of breath with heart palpitations since her surgery 2 months before. 24 25 T 1141. She was observed to have tenderness in the right suboccipital region. T 1142. 26 27 8 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 9 of 20 An endoscopy on July 14, 2014 showed some mucosal abnormalities in the mid-1 2 esophogus, antrim, and duodenal bulb of the stomach, along with an ulcer in the antrim. 3 T 1121-22. She was observed to have tenderness across the upper abdomen with 4 chronically low iron levels and was referred for surgery for her non-healing ulcer. T 5 1121-23. On July 22, 2014, Eveland was noted to have a history of ulcers with 6 worsening pain in December 2013; she was observed with abdominal tenderness to 7 palpation, though the physician indicated he would be "careful" before recommending 8 further surgery for her ulcers. T 1118-19. On July 24, 2014, Eveland presented for 9 10 chronic anemia with episodes of pre-syncope for the prior 2 weeks that consisted of 11 convulsions with lightheadedness and dizziness. T 1073. She was observed to be slightly 12 photophobic due to headache, had hypoactive bowel sounds, mild diffuse tenderness to 13 palpation, moderate deep tenderness to palpation in the epigastric region, and low iron 14 and red blood cell counts. T 1077. She was noted to be "profoundly symptomatic" and 15 required a transfusion to address her anemia. T 1083. The examining physician noted her 16 anemia had been non-responsive to iron therapy and instructed her to continue 17 18 venlafaxine for anxiety since a hospital stay could worsen her anxiety. T 1080-81. 19 On August 4, 2014, Eveland reported blood in her vomit with anemia. T 995, 20 1002. She was observed to have slight tenderness in the epigastrum, positive bowel 21 sounds, and some trace pedal edema. T 996, 1004, 1049. However, no actively bleeding 22 ulcers were found. T 997. On August 25, 2014, a note indicated Eveland had left the 23 office prior to an appointment because she had a severe panic attack. T 972-73. On 24 25 August 29, 2014, Eveland reported continued constant abdominal pain; she was very 26 tearful, feeling like she would never be free of the pain. T 969. She was observed to have 27 9 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 10 of 20 abdominal tenderness to palpation with voluntary guarding in the right upper quadrant. T 1 2 969. She was again observed to have tenderness in the upper abdomen with reported 3 abdominal pain on September 4, 2014. T 967. A CT of the abdomen from September 12, 4 2014 showed thickening of the distal esophagus possibly related to chronic GERD with 5 some mild right hydrophrosis. T 726-27. On September 15, 2014, Dr. Somershoe 6 observed she was highly anxious with a congruent affect and intrusive traumatic 7 memories. T 956. A study of the upper GI tract on September 16, 2014 showed a small 8 hiatal hernia. T 724. 9 10 On September 29, 2014, Dr. Somershoe again observed Eveland was highly 11 anxious and tearful with intrusive memories; rating questionnaires indicated severe 12 depression and PTSD. T 944. On October 6, 2014, Dr. Somershoe observed an anxious 13 and irritable mood, congruent affect, and intrusive memories, though her anxiety and 14 agitation were noted as somewhat improved from previous sessions. T 933. On October 15 15, 2014, Eveland was noted to be anxious about undergoing another GI surgery, though 16 reassurances about the safety of the surgery did decrease her anxiety. T 912, 917. On 17 18 October 16, 2014, she was noted to be status post exploratory laparotomy vagotomy and 19 antrectomy. T 841, 1456. On October 17, 2014, she had hypoactive bowel sounds with 20 wound drainage; she was passing flatus, wearing an abdominal binder, and complained of 21 headache. T 817, 820. Appetite improved post-operatively by October 21, 2014. T 823. 22 On November 17, 2014, Dr. Somershoe opined that Eveland was unable to work 23 around males due to past traumas and had extreme limitation in abilities to perform 24 25 regular activities within a schedule, maintain regular attendance, and be punctual; sustain 26 an ordinary routine without special supervision; complete a normal workday or 27 10 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 11 of 20 workweek without interruption from psychologically based symptoms; perform at a 1 2 consistent pace with a standard length and number of rest periods; accept instructions and 3 respond appropriately to criticism; get along with co-workers or peers without distracting 4 them or exhibiting behavioral extremes; and travel in unfamiliar places or use public 5 transportation. T 1544-56. Dr. Somershoe also indicated a number of moderate-to-6 extreme or marked-to-extreme limitations in her abilities to remember locations and 7 work-like procedures; understand, remember, and carry out instructions; maintain 8 attention and concentration for extended periods; make work-related decisions; interact 9 10 appropriately with the general public; and respond appropriately to changes in the work 11 setting. Id. Dr. Somershoe noted that Eveland had needed to miss sessions due to high 12 levels of anxiety or panic attacks and noted that while Eveland might come across as 13 high-functioning, her anxiety could be severely incapacitating. T 1545. 14 15 ARGUMENT Judicial review of the Commissioner’s final decision of not disabled is limited to 16 two inquiries: (1) whether substantial evidence of record supports the final agency 17 18 decision, and (2) whether any errors of law were made. 42 U.S.C. § 405(g). Substantial 19 evidence is such evidence that a reasonable mind might accept as adequate to support a 20 decision. Richardson v. Perales, 402 U.S. 389, 401 (1971). The Social Security 21 Administration ("SSA") has promulgated a five-step sequential evaluation process for use 22 in making disability determinations. See 20 C.F.R. § § 404.1520, 416.920. The ALJ 23 adequately described the five steps in his decision. T 25-26. 24 25 26 27 11 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 12 of 20 1. The ALJ’s decision to afford no weight to the opinion of treating psychologist 1 Dr. Somershoe is not supported by substantial evidence. 2 The ALJ afforded no weight to the opinion from Dr. Somershoe, asserting that 3 such lack of weight was merited by the "short-term of Dr. Somershoe’s treating 4 relationship with the claimant." T 25-26. The ALJ also appears to have indicated that the 5 6 objective record, including the findings of the non-examining State Agency psychologists 7 and consultative examiner Dr. Littlefield, was not consistent with Dr. Somershoe’s 8 opinion. However, the ALJ’s reasons for rejecting this opinion are not consistent with 9 the medical evidence of record and not supported by substantial evidence. The ALJ’s 10 erroneous rejection of this opinion is harmful error, since the limitations Dr. Somershoe 11 opined would necessitate a finding of disability. 12 "Even if a treating physician’s opinion is contradicted, the ALJ may not simply 13 14 disregard it. The ALJ is required to consider the factors set out in 20 C.F.R. §§ 15 404.1527(c) in determining how much weight to afford the treating physician’s medical 16 opinion." Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (citing Orn v. Astrue, 17 495 F.3d 625, 631 (9th Cir. 2007)). "An ALJ may only reject a treating physician’s 18 contradicted opinions by providing'specific and legitimate reasons that are supported by 19 substantial evidence.’" Ghanim, 763 F.3d at 1161 (quoting Ryan v. Comm’r SSA, 528 20 21 F.3d 1194, 1198 (9th Cir. 2008)). "‘In many cases, a treating source’s medical opinion 22 will be entitled to the greatest weight and should be adopted, even if it does not meet the 23 test for controlling weight.’" Ghanim, 763 F.3d at 1161 (quoting Orn, 495 F.3d at 631). 24 First and foremost, the ALJ’s assertion that Dr. Somershoe only treated Eveland 25 three times over the course of less than a year is inaccurate. To the contrary, the treatment 26 27 12 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 13 of 20 records show that Dr. Somershoe was Eveland’s primary mental care provider at the VA 1 2 throughout the period after the amended alleged onset date, seeing her at least 8 times 3 between January 2014 and October 2014. See e.g., T 19, 123, 933, 944, 956, 972-73, 4 1152-53, 1163-64, 1305, 1359-60, 1366-67. Consequently, given that the evidence in the 5 record clearly contradicts the ALJ’s assertion that Dr. Somershoe saw Eveland "only 6 three times" over the course of 2014, the ALJ’s rationale that Dr. Somershoe had an 7 inadequate treating relationship to support her opinion is not supported by substantial 8 evidence. The ALJ’s serious misinterpretation of this fact also calls into question 9 10 whether the ALJ applied appropriate scrutiny to all of the evidence in the record as was 11 his duty to do. Dr. Somershoe’s lengthy and fairly frequent treating relationship with 12 Eveland bolsters her opinion, particularly as she made notes within the opinion form that 13 the opined limitations were based in part on that special relationship. For example, Dr. 14 Somershoe noted that while Eveland appeared to be high-functioning, in reality her 15 anxiety could be severely incapacitating. T 1545. This was based on Dr. Somershoe’s 16 personal interactions with Eveland and the noted need to cancel appointments at times 17 18 due to anxiety. Id. This is precisely the type of situation where a treating source brought 19 a "unique perspective to the medical evidence that cannot be obtained from the objective 20 medical findings alone or from reports of individual examinations, such as consultative 21 examinations or brief hospitalizations." See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). 22 The ALJ’s failure to properly appreciate and assess the true nature and extent of the 23 treatment relationship between Eveland and Dr. Somershoe undermines his decision to 24 25 reject this opinion. 26 27 13 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 14 of 20 Secondly, the only other reason that the ALJ provided for rejecting this opinion 1 2 was a perceived lack of support from the objective evidence. T 26. The ALJ specifically 3 pointed to the report of consultative examiner Dr. Littlefield from April 20, 2013 as an 4 example. T 26, 207-211. As an initial note, Dr. Littlefield’s exam was completed well 5 prior to the amended alleged onset date and therefore does not constitute very strong 6 evidence regarding Eveland’s functioning after that alleged onset date. In any event, Dr. 7 Littlefield’s opinion supports that greater limitations existed than the ALJ accounted for 8 in the RFC. Dr. Littlefield noted that Eveland displayed psychomotor agitation and 9 10 appeared anxious; he opined that Eveland would have difficulty sustaining attention 11 during a regular work shift due to PTSD; her anxiety was likely to inhibit her willingness 12 to work in coordination with others and sustain an ordinary routine; she is likely to have 13 difficulty interacting appropriately with the general public, asking simple questions, and 14 getting along with coworkers; she might have difficulty responding to supervisory 15 criticism; and would likely need emotional support to travel in unfamiliar places and 16 respond to changes in work setting. T 206, 210-11. Consequently, Dr. Littlefield’s 17 18 opinion actually appears to be more consistent with Dr. Somershoe’s opinion than the 19 ALJ’s RFC, an inconsistency the ALJ does not reconcile in purporting to afford 20 significant weight to Dr. Littlefield’s opinion. T 25. 21 Dr. Somershoe’s opinion is also somewhat consistent with the mental opinion 22 provided in June 2013 by Dr. Landan. T 508-10. Although Dr. Landan’s opinion did not 23 show as much severity in terms of marked and extreme limitations opined, it is again 24 25 important to note that this opinion was rendered many months prior to the amended 26 alleged onset date. Id. Additionally, an increase in severity by the time Dr. Somershoe 27 14 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 15 of 20 rendered her opinion in November 2014 is consistent with reports that Eveland had been 1 2 experiencing greater anxiety and distress as a result of the type of exposure therapy she 3 was engaged in, which was helping her recall her repressed memories of the traumas that 4 caused her PTSD. T 1609. 5 Dr. Somershoe’s opinion is also consistent with her treatment notes. While Dr. 6 Somershoe’s treatment notes indicated that Eveland experienced some relief from 7 treatment, she consistently noted continuing anxiety during sessions, emotional responses 8 to the treatment methods, and had noted a panic attack that occurred within the office as 9 10 recently as August 2014. See e.g., T 933, 944, 956, 972-73, 1152-53, 1163-64, 1305, 11 1359-60, 1366-67. Additionally, Dr. Somershoe explained that Eveland’s anxiety caused 12 more significantly incapacitating problems that were objectively observable to some 13 people. T 1545. The ALJ did not explain how these or other mental health treatment 14 notes were as a whole inconsistent with Dr. Somershoe’s opinion. In fact, the ALJ hardly 15 discussed any of the mental health treatment notes or their findings. T 24-26. Such vague 16 assertions of inconsistency, without pointing to actual examples of supporting evidence, 17 18 is not sufficient to show that the ALJ’s assertion here was supported by substantial 19 evidence. See Lara v. Colvin, No. CV-13-01643-PHX-JZB, 2015 U.S. Dist. LEXIS 20 42823, at *25-26 (D. Ariz., Mar. 31, 2015) (finding the ALJ erred in failing to explain 21 how a restriction to unskilled work accounted for the limitations supported by the 22 medical evidence the ALJ purported to rely upon). 23 The only other opinion evidence which the ALJ purported to rely on were the 24 25 opinions from the non-examining State Agency psychological consultants. T 27. But the 26 most recent of these opinions was rendered on October 31, 2013, prior to the amended 27 15 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 16 of 20 alleged onset date of January 1, 2014. T 19, 43-45, 63-64, 123. Since these sources made 1 2 their determinations based solely on a review of evidence, the timing of their opinions 3 shows that they did not consider any of the evidence from during what is now the 4 relevant period. Consequently, these opinions have very little probative value for 5 determining what Eveland’s mental functioning was as of her alleged onset date of 6 January 1, 2014 and certainly do not merit more weight than a treating physician. See 7 Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995) ("The opinion of a non-examining 8 physician cannot by itself constitute substantial evidence that justifies the rejection of the 9 10 opinion of either an examining physician or a treating physician"). Additionally, the only 11 reason the ALJ gave for relying on these opinions was a vague assertion that their 12 opinion of mild to moderate limitations in mental functioning were "not inconsistent with 13 the greater objective record." T 27. However, as noted previously, the ALJ did not 14 provide any actual explanation as to what evidence supported this conclusion. See Lara, 15 No. CV-13-01643-PHX-JZB, 2015 U.S. Dist. LEXIS 42823, at *25-26. These opinions 16 therefore do not provide substantial evidence to merit upholding the ALJ’s findings. 17 18 Given the ALJ’s errors in assessing Dr. Somershoe’s treatment relationship and 19 his failure to show how her opinion was inconsistent with the totality of the evidence, the 20 ALJ failed to provide sufficient "good reason" to reject Dr. Somershoe’s opinion. The 21 ALJ’s purported reliance solely on opinion from prior to the amended alleged onset date 22 does not provide substantial evidence to render this error harmless. Remand for further 23 proceedings is therefore merited. 24 25 26 27 16 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 17 of 20 2. The RFC determination is not supported by substantial evidence because the 1 ALJ failed to account for the evidence of limitations related to impairments 2 the ALJ found both severe and non-severe. 3 The ALJ found that Eveland’s migraine headaches and chronic fatigue syndrome 4 were severe physical impairments in addition to her digestive-related impairments. T 21. 5 The ALJ also found that Eveland did not have a medically determinable severe lower 6 back impairment. T 22. However, the ALJ failed to explain how the limitations in the 7 RFC accounted for these impairments and completely failed to analyze or make any 8 determination regarding the effect of various other physical impairments, including her 9 10 knee impairment and upper extremity tenosynovitis. These errors are harmful, as the 11 medical evidence supports that these impairments would impose greater restrictions on 12 Eveland’s physical functioning than the ALJ accounted for in the RFC. 13 As noted above in the initial portion of this brief, the RFC allowed Eveland to 14 perform a full range of work at all exertional levels with the only non-mental limitations 15 being related to bathroom use a result of her short bowel syndrome. T 23. But the ALJ 16 did not explain how this level of limitations accounted for the impact of the migraine 17 18 headaches and chronic fatigue syndrome that the ALJ himself found severe. T 24-27; see 19 Lara, No. CV-13-01643-PHX-JZB, 2015 U.S. Dist. LEXIS 42823, at *25-26. 20 Additionally, the ALJ failed to indicate that he considered the effects of physical 21 impairments in combination when assessing RFC. Although the ALJ noted that he found 22 Eveland did not have a medically determinable severe back impairment, the record 23 supports that it was in fact medically determinable. An MRI from March 15, 2014 24 25 showed a mild posterior bulge in the lumbar spine at L4-L5 level without compromise of 26 the thecal sac or neural foramina. T 1523. On March 19, 2014, she reported back pain 27 17 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 18 of 20 after picking up her dog. T 1549. She was observed in mild distress with tenderness to 1 2 palpation at L4-L5 along the paraspinal muscles and limited lumbar range of motion due 3 to pain. T 1550. The examining physician, Michael Hickman, D.O., assessed an acute 4 exacerbation of chronic low back pain. T 1551. On May 21, 2014, Dr. Saba observed 5 pain with palpation over the left SI joint in her back, noting that her pain remained severe 6 even with prescribed Vicodin. T 1162, 1172. The objective evidence therefore supports 7 the existence of a medically determinable impairment, one which the ALJ was required to 8 consider the effects of even if he determined it was not severe. See SSR 96-8p. 9 10 This error is compounded by the fact that the ALJ completely ignored evidence 11 related to other physical joint impairments. See Smolen v. Chater, 80 F.3d 1273, 1282 12 (9th Cir. 1996) (finding error where the ALJ ignored "without explanation" medical 13 evidence of other impairments); see also Cotton v. Bowen, 799 F.2d 1403, 1408-09 (9th 14 Cir. 1986) (finding legal error where the ALJ’s findings ignored medical evidence 15 without giving specific, legitimate reasons for doing so). As detailed above, Eveland 16 intermittently went for treatment of joint-related complaints both before and during the 17 18 relevant period. See supra Statement of the Facts, at 4-10. 19 On December 16, 2013, Dr. Herring observed limited right knee range of motion, 20 pain with flexion, patella and medial joint line tenderness, moderate-to-large effusion, 21 and moderate lateral laxity. T 1390-91. An MRI of the right knee from February 4, 2014 22 showed some patellar tendinopathy. T 744-45. On February 12, 2014, Eveland reported 23 continued right knee pain with a feeling of swelling and instability; Dr. Cranford 24 25 observed diffuse tenderness to palpation in the knee as well as pain with overhead motion 26 in the right shoulder and some tenderness in the bicep and acromioclavicular regions. T 27 18 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 19 of 20 318. On March 31, 2014, Eveland indicated the emergency room had referred her for a 1 2 rheumatological consultation due to joint pain in her right elbow, hand, and wrist. T 3 1213. Elizabeth Chang, M.D., observed some tenderness in the right lateral epicondyle, 4 some mild edema on palpation of the left wrist, tenderness over medial aspect of the right 5 wrist, synovitis on palpation of all MCP joints in the left hand, a positive right hand 6 Finklestein test, tenderness in some finger joints, and early Heberden and Bouchard 7 deformities. T 1216. Dr. Chang concluded that the exam strongly suggested 8 tenosynovitis with repetitive motion injury. T 1219. On May 21, 2014, Dr. Saba 9 10 observed pain with palpation over the left SI joint in her back, noting that pain remained 11 severe even with prescribed Vicodin. T 1162, 1172. This evidence shows significant 12 ongoing physical symptoms, yet the ALJ completely failed to discuss any of it or even 13 acknowledge that other physical impairments were substantiated by the evidence. This is 14 error, as this evidence appears to support exertional limitations. See Smolen, 80 F.3d at 15 1282; see also Cotton, 799 F.2d at 1408-09. 16 The only physical evidence suggesting these limitations that the ALJ discussed in 17 18 any detail other than that which was related to Eveland’s bowel impairments was the June 19 2013 physical RFC from Dr. Landan. T 26, 506-07. The ALJ rejected that opinion, 20 finding it unsupported by the objective medical evidence, including the February 2013 21 consultative examination from Dr. Briggs, and afforded greater weight to the opinions of 22 the non-examining State Agency physicians.1 T 26. But the ALJ’s assessment here is 23 24 1 Contrary to the ALJ’s indication that State Agency sources had opined no physical 25 restrictions, there is not actually a functional opinion from these sources related to physical functioning. Rather, they determined that Eveland’s peptic ulcer condition was 26 not severe, a finding which is contradicted by the ALJ’s finding that Eveland had severe 27 19 28 Case 2:16-cv-02840-SRB Document 17 Filed 01/17/17 Page 20 of 20 problematic since all of the opinion evidence relating to Eveland’s physical functioning 1 2 that the ALJ relied on is from well prior to the amended alleged onset date, as with the 3 mental determination discussed previously. Given all of the evidence of joint limitations, 4 including an assessment by a rheumatologist that found medically determinable 5 impairments, it was not proper for the ALJ to rely almost solely on the opinion of a 6 consultative examiner from almost a year prior to the alleged onset date. This is 7 particularly erroneous in the context of ignoring the existence of any of these additional 8 physical impairments. See Smolen, 80 F.3d at 1282; see also Cotton, 799 F.2d at 1408-09. 9 10 For all of the above reasons, the ALJ’s assessment of the physical RFC is not 11 supported by substantial evidence and is the product of legal error. This matter should be 12 remanded for further administrative proceedings. 13 CONCLUSION 14 For the foregoing reasons, it is respectfully requested that this matter be remanded 15 for further administrative proceedings, including de novo hearing and new decision. 16 January 17, 2017/s/Howard D. Olinsky 17 Howard D. Olinsky, Esq. 18 Admitted Pro Hac Vice Olinsky Law Group 19 One Park Place 20 300 South State Street, Suite 420 Syracuse, NY 13202 21 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 22 holinsky@windisability.com 23 24 25 bowel-related impairments. T 40-41, 59. Consequently, these sources did not actually provide a functional opinion that would have assisted the ALJ in making his 26 determination. 27 20 28

Certificate of Service

Case 2:16-cv-02840-SRB Document 17-1 Filed 01/17/17 Page 1 of 1 Howard D. Olinsky, Esq. Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, NY 13202 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 holinsky@windisability.com Attorney for Plaintiff Angela C. Eveland IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Angela C. Eveland, Plaintiff, Civil No. 2:16-cv-02840-SRB vs. PLAINTIFF’S BRIEF Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant This is to certify that I have this day served counsel for the Defendant with Plaintiff’s Opening Brief 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: Lars J. Nelson Special Assistant United States Attorney This 17th day of January, 2017/s/Howard D. Olinsky Howard D. Olinsky, Esq.

RESPONSE BRIEF by Commissioner of Social Security Administration.

Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 1 of 21 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Lars J. Nelson Special Assistant United States Attorney 4 Office of the General Counsel Social Security Administration 5 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 6 State Bar No. MN0389274 Fax: (206) 615-2531 7 lars.nelson@ssa.gov Telephone: (206) 615-2732 8 Of Attorneys for the Defendant 9 IN THE UNITED STATES DISTRICT COURT 10 DISTRICT OF ARIZONA 11 Angela C Eveland, No. CV-16-02840-PHX-SRB 12 Plaintiff, DEFENDANT'S RESPONSIVE 13 vs. BRIEF 14 Nancy A. Berryhill, Acting Commissioner of Social Security, 15 Defendant. 16///17///18///19///20///21///22 23 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 2 of 21 1 INTRODUCTION 2 Plaintiff Angela C. Eveland brings this action challenging Defendant 3 Commissioner of Social Security’s final decision that she is not "disabled" under 4 42 U.S.C. §§ 416(i), 423(d), 1382c(a)(3). This Court has jurisdiction pursuant to 5 42 U.S.C. § 405(g). Eveland seeks an order reversing the Administrative Law Judge’s 6 (ALJ) decision and remanding for further proceedings. ECF No. 17 at 20. For the 7 reasons set forth below, the Commissioner requests the Court enter judgment affirming 8 the ALJ’s decision, pursuant to 42 U.S.C. § 405(g). In the Argument section below, the 9 Commissioner will respond to Eveland’s contentions, and discuss and provide citation to 10 the relevant facts. 11 BACKGROUND 12 The ALJ’s findings constitute the relevant facts in this matter by Congress’s 13 designation of the Commissioner as the sole fact finder. See 42 U.S.C. §§ 405(b)(1), 14 405(g). The Findings of ALJ are found Administrative Record (Tr.) pages 19 to 29. 15 ISSUES 16 I. Does the ALJ’s residual functional capacity assessment account for all of Eveland’s credible limitations? 17 II. Did the ALJ provide valid reasons for the weight assigned to the medical evidence? 18 III. In the unlikely event that reversal is warranted, should this matter be remanded for 19 further administrative proceedings in lieu of a finding of disability? 20 STANDARD OF REVIEW 21 The Social Security Act defines a "disability" as the "inability to engage in any 22 substantial gainful activity by reason of any medically determinable physical or mental 23 2 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 3 of 21 1 impairment which can be expected to result in death or which has lasted or can be 2 expected to last for a continuous period of not less than 12 months." 42 U.S.C. 3 § 423(d)(1)(A). 4 When reviewing the "final decision," as embodied by the five-step sequential 5 evaluation process for assessing disability, Barnhart v. Thomas, 540 U.S. 20, 24-25 6 (2003), the Court must answer two questions: (1) Are the ALJ’s factual findings 7 supported by substantial evidence, and (2) Did the ALJ apply the correct legal standards? 8 Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). If the Court answers "no" to a 9 question, then the Court must consider whether the ALJ’s errors are "consequential to the 10 ultimate nondisability determination," id. at 1122 (quotation omitted), because the Court 11 "may not reverse an ALJ’s decision on account of an error that is harmless," id. at 1111. 12 As to the first question, substantial evidence "means such relevant evidence as a 13 reasonable mind might accept as adequate to support a conclusion." Richardson v. 14 Perales, 402 U.S. 389, 401 (1971) (quotation omitted). "This is something less than the 15 weight of the evidence, and the possibility of drawing two inconsistent conclusions from 16 the evidence does not prevent an administrative agency’s finding from being supported 17 by substantial evidence." Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966). 18 When reviewing the ALJ’s decision, "[e]ven when an agency'explains its decision with 19'less than ideal clarity,’ [the court] must uphold it'if the agency’s path may reasonably 20 be discerned.’" Molina, 674 F.3d at 1121 (quoting Alaska Dep’t of Envtl. Conservation v. 21 E.P.A., 540 U.S. 461, 497 (2004)). 22 As to the second question, disagreement with the Commissioner’s interpretation of 23 3 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 4 of 21 1 the Social Security Act and the implementing regulations requires a finding that the 2 Commissioner’s interpretation is arbitrary, capricious, or manifestly contrary to the 3 statute. Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2021, 2033 (2012) (statutes); Lyng v. 4 Payne, 476 U.S. 926, 938-39 (1986) (regulations). This Court must apply the 5 Commissioner’s interpretation absent explicit, contrary binding precedent. Nat’l Cable & 6 Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982-83 (2005). 7 Barring an "exceptional case in which review is needed to prevent a miscarriage of 8 justice," a claimant waives an issue by failing to raise it to the district court in his opening 9 brief. Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006). As to the Commissioner, 10 the doctrine from S.E.C. v. Chenery, 332 U.S. 194, 196 (1947), is not violated when the 11 Commissioner (1) explains why the ALJ’s actions are consistent with the Social Security 12 Act and the regulatory scheme, Nat’l R.R. Passenger Corp. v. Boston & Maine Corp., 13 503 U.S. 407, 419-20 (1992); (2) cites specific records within the "administrative record" 14 to explain why the ALJ’s finding is sustainable, Camp v. Pitts, 411 U.S. 138, 143 (1973); 15 or (3) directs the court to "additional support" for the ALJ’s decision rather than 16 "invent[ing] a new ground for the decision," Warre v. Comm’r of Soc. Sec. Admin., 439 17 F.3d 1001, 1005 n.3 (9th Cir. 2006). 18 ARGUMENT 19 I. The ALJ’s RFC assessment is supported by substantial evidence and accounts for Eveland’s credible limitations. 20 At step two, the ALJ found that Eveland had severe impairments, including 21 migraine headaches, chronic fatigue syndrome, tumor on lower section of short bowel, 22 23 4 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 5 of 21 1 pancreatitis, and affective and anxiety disorders. Tr. 21. Eveland does not challenge this 2 finding; rather, Eveland argues at Issue 2, ECF No. 17 at 17-20, that (1) the ALJ erred by 3 excluding a knee impairment, arm tenosynovitis, and lower back pain from the list of 4 severe impairments, and (2) generally failed to explain how the limitations in the RFC 5 assessment accounted for these impairments. 6 Both of Eveland’s arguments fail because the ALJ reasonably assessed Eveland’s 7 RFC. In Burch v. Barnhart, 400 F.3d 676, 683-84 (9th Cir. 2005), the Ninth Circuit 8 found a failure to discuss an impairment at step two harmless because the claimant failed 9 to point to "any evidence of functional limitations and where the ALJ considered 10 "physicians’ notes" addressing the omitted impairment when assessing the claimant’s 11 RFC. Likewise, in Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005), the Ninth 12 Circuit explained that the ALJ is not required to write out "a function-by-function 13 analysis"; rather, the ALJ’s decision need only take "into account those limitations for 14 which there was record support that [does] not depend on [the claimant’s subjective 15 complaints." Here the ALJ’s RFC assessment accounts for all of Eveland’s credible 16 limitations. 17 A. The ALJ reasonably accounted for Eveland’s knee impairment. 18 The ALJ did not err in excluding right knee pain from the list of severe 19 impairment. An ALJ "need not discuss all evidence presented to her." Vincent ex rel. 20 Vincent v. Heckler, 739 F.2d 1393, 1394– 95 (9th Cir. 1984). But, assuming arguendo 21 that the ALJ did so, the error is harmless because the ALJ reasonably accounted for any 22 credible knee limitation when assessing Eveland’s RFC. 23 5 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 6 of 21 1 Eveland suggests that she first raised her knee complaints in December 2013— 2 shortly before the amended alleged onset date. ECF No. 17 at 18, citing Tr. 1390-91. In 3 fact, Eveland reported that she injured her right knee in 2006 while serving in the 4 military, Tr. 538, and also reported that her injury occurred in 1984, Tr. 553, 609, 661. In 5 January 2009, she underwent arthroscopic surgery. Tr. 661. Eveland’s knee issue was 6 noted in her medical history throughout the record. See, e.g., Tr. 231 (Jan. 10, 2012). 7 Eveland was ultimately treated with a Coolmax Neoprene knee brace. Tr. 534-35. 8 The ALJ considered the consultative examination performed by Brian Briggs, 9 M.D., M.P.H., in February 2013. Tr. 26, 201-04. Dr. Briggs noted Eveland’s knee issues 10 in her knee surgery. Tr. 201. Dr. Briggs found on examination, however, that Eveland 11 had a normal gait; an adequate ability to squat and hop; 5/5 strength; and normal range of 12 motion. Tr. 202-03. Dr. Brigg’s findings are consistent with the State agency medical 13 consultant, Valeria Malak, M.D., who considered Eveland’s allegations of knee pain in 14 conjunction with her normal gait, but assessed no functional limitations. Tr. 27, 40, 15 1568. Contrary to Eveland’s contention, ECF No. 17 at 19 n.1, Dr. Malak concluded that 16 Eveland had "no [medically determinable impairment] that can reasonably be expected to 17 produce the alleged pain." Tr. 40. The ALJ assigned the opinions of Drs. Briggs and 18 Malak great weight. Tr. 26-27. Dr. Briggs’s findings are consistent with a 19 comprehensive examination of her right knee performed by the Department of Veterans 20 Administration (VA) in September 2013. Tr. 660-67. The VA unambiguously 21 concluded Eveland’s "knee and/or lower leg condition(s) [do not] impact... her ability 22 to work." Tr. 667. Dr. Briggs’s findings are also consistent with findings well after her 23 6 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 7 of 21 1 alleged onset date, including from January 2014. See, e.g., Tr. 930 (Oct. 2014), 1266 2 (Mar. 2014), 1291 (Mar. 2014), 1527 (Mar. 2014), 1550 (Mar. 2014). 3 In sum, because the ALJ considered "physicians’ notes"—i.e., Drs. Briggs and 4 Malak’s notes—the ALJ adequately considered Eveland’s knee issue when assessing her 5 RFC. Burch, 400 F.3d at 683-84. Furthermore, in light of the record noted above, 6 Eveland has not substantively shown that any error in the omission of a knee impairment 7 would be "[]consequential to the ultimate nondisability determination," which is the 8 standard for showing prejudicial or harmful error. Molina, 674 F.3d at 1115 (quotation 9 omitted). Therefore, Eveland has not met her burden of showing harmful (or reversible) 10 error. Molina, 674 F.3d at 1111 ("[T]he burden of showing that an error is harmful 11 normally falls upon the party attacking the agency's determination." (quoting Shinseki v. 12 Sanders, 556 U.S. 396, 409 (2009)). 13 B. The ALJ reasonably accounted for tenosynovitis in Eveland’s arm. 14 Again, the ALJ did not err in excluding tenosynovitis in her arm from the list of 15 severe impairment. See Vincent, 739 F.2d at 1394–95. But, assuming arguendo that the 16 ALJ did so, the error is harmless because the ALJ reasonably accounted for any credible 17 arm limitations when assessing Eveland’s RFC. 18 As an initial matter, Eveland has not shown that her tenosynovitis meets the 19 durational requirement. An impairment "must have lasted or must be expected to last for 20 a continuous period of at least 12 months." 20 C.F.R. §§ 404.1509, 416.909. Pursuant to 21 Eveland’s own citations, her arm condition was diagnosed in March 2014. ECF No. 17 at 22 19, citing Tr. 1213. Thus, this impairment had not lasted 12 months as of the ALJ’s 23 7 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 8 of 21 1 decision in February 2015. Cf. Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 2 1989) (explaining that one medical source "concluded that [the claimant] would be 3 unemployable for four months, too short a period to make him eligible for SSI benefits.. 4. [and] [i]n light of the fact that no physician concluded that [the claimant] would be 5 unable to work for the statutorily required period,..." the ALJ’s decision was affirmed). 6 Indeed, the above point is borne out by the record. The ALJ considered 7 Dr. Briggs’s examination, which found 5/5 strength; normal range of motion in Eveland’s 8 shoulder, elbows, and writs; and normal hand functioning. Tr. 202-203. Dr. Brigg’s 9 findings are echoed examination notes from March 2014, documenting normal arm 10 findings, Tr. 1529, 1549, as well as from October 2014, documenting Eveland could even 11 move her arm through her full range of against moderate resistant, Tr. 828, 836, 855. 12 Indeed, even a review of the records cited by Eveland reveal that she has provided a full 13 less than a full picture of her impairments. In March 2014, Elizabeth Chang, M.D., 14 ultimately found that Eveland had "full pain free [range of motion]" in her shoulder, 15 elbow, writs, and hands. ECF No. 17 at 19, citing Tr. 1216. 16 In sum, because the ALJ considered "physicians’ notes"— Drs. Briggs and 17 notes—the ALJ adequately considered Eveland’s tenosynovitis when assessing her RFC. 18 Burch, 400 F.3d at 683-84. Furthermore, in light of the record noted above, Eveland has 19 not substantively shown that tenosynovitis would meet the durational requirement or 20 produce limitations such that any error in the omission would be "[]consequential to the 21 ultimate nondisability determination," which is the standard for showing prejudicial or 22 23 8 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 9 of 21 1 harmful error. Molina, 674 F.3d at 1115 (quotation omitted). Therefore, Eveland has not 2 met her burden of showing harmful (or reversible) error. Molina, 674 F.3d at 1111. 3 C. The ALJ reasonably accounted for Eveland’s lower back pain. 4 At step two, the ALJ found that Eveland’s lower back pain was not a severe 5 impairment because x-rays from March 2014 revealed only a mild disc bulge. Tr. 22, 6 1541. This is a valid finding. In an analogous holding, in Burch, the Ninth Circuit 7 affirmed that an ALJ could reasonably discount subjective complaints the conflicted with 8 objective imagining that revealed only mild degeneration. 400 F.3d at 681. 9 Furthermore, the ALJ consider the opinion of Dr. Briggs, Tr. 26, 203. Dr. Briggs 10 found no pain or tenderness to palpation along Eveland’s spine and normal range of 11 motion. Tr. 203. These findings are actually consistent with the findings from Phillip Z. 12 Saba, M.D., who found on May 31, 2014 as follows: 13 BACK normal to inspection no midline tenderness she has pain to palp over the left SIJ 14 EXT: left hip normal to [inspection] Pt has full ROM. No clubbing cyanosis or edema, peripheral pulses intact. 15 Tr. 1168. Indeed, the Commissioner was unable to locate the May 21, 2014 exam 16 records cited by Eveland.1 See ECF No. 17 at 18, citing Tr. 1162, 1172. The records 17 from Tr. 1172 are simply subjective complaints, which were unsupported by Dr. Saba’s. 18 See Tr. 1168. 19///20 21 22 1 Eveland did have a mammogram on May 21, 2014. Tr. 1175. 23 9 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 10 of 21 1 D. The ALJ reasonably accounted for Eveland’s credible limitations when assessing her RFC. 2 Eveland argues that ALJ did not explain how the RFC assessment accounted for 3 Eveland’s severe medically determinable impairments (e.g., migraines) much less how 4 the ALJ accounted for the nonsevere impairments alone or in combination the other 5 impairments (e.g., back pain). ECF No. 17 at 17. Eveland also argues that "the ALJ’s 6 assessment here is problematic since all of the opinion evidence relating to Eveland’s 7 physical functioning that he ALJ relied on is from well prior to the amended alleged 8 onset date. ECF No. 17 at 19-20. Both of these arguments fail. 9 The ALJ did not choose the record before her. Eveland initially alleged disability 10 commencing in February 2012. Tr. 101, 1564. The record was developed accordingly. 11 Apparently recognizing baselessness of this allegation, Eveland amended the alleged 12 disability onset date at the hearing. Tr. 19, 1598. But, amending the onset date does not 13 change the record. Moreover, the ALJ has a duty to consider "all of the relevant evidence 14 in [a claimant’s] case record" when assessing a claimant’s RFC. 20 C.F.R. 15 §§ 404.1545(a)(1), 416.945(a)(1). Thus, the ALJ reasonably considered medical 16 opinions that predated the alleged disability onset date, including Drs. Briggs and Malak, 17 as part of considering the case record as a whole. See Tr. 26-27, 40, 201-04, 1568. 18 SSR 06-03p, 2006 WL 2329939, at *6, provides that "there is a distinction 19 between what an adjudicator must consider and what the adjudicator must explain in the 20 disability determination or decision." In other words, the ALJ need not "[p]repar[e] a 21 function-by-function analysis for medical conditions or impairments that the ALJ found 22 23 10 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 11 of 21 1 neither credible nor supported by the record...." Bayliss, 427 F.3d at 1217 (discussing 2 SSR 96-8p). Moreover, "[d]epending upon the facts of a given case, any kind of medical 3 or nonmedical evidence can potentially satisfy the substantial evidence test." SSR 96-2p, 4 1996 WL 374188, at *4. The ALJ discussed the most probative evidence in the record 5 and ultimately found the RFC was supported by, among other things, Eveland’s activities 6 of daily living and observations of the examining physicians, such as Dr. Briggs. Tr. 27. 7 Specifically, the ALJ found probative Eveland’s ability to take care of her disabled 8 husband; help her two children with homework, cook occasional meals and do chores, 9 and pursue therapeutic hobbies, such as crocheting and writing poetry. Tr. 25, 137, 161, 10 1613, 1618. The ALJ’s assessment of the record evidence is reasonable and entitled to 11 deference. See Molina, 674 F.3d at 1111. 12 "The claimant carries the initial burden of proving a disability in steps one through 13 four of the analysis." Burch, 400 F.3d at 679. The RFC assessment comes between steps 14 three and four. See generally 20 C.F.R. § 404.1520, 416.920. In assessing the ALJ’s 15 decision, this Court "may not reweigh the evidence, substitute [its] judgment for the 16 [ALJ’s], or give vent to feelings of compassion." Winans v. Bowen, 853 F.2d 643, 644-17 45 (9th Cir. 1987) (quotation omitted). At bottom, Eveland’s argument is simply an 18 attempt to shift the burden from her to the ALJ and to get this Court to reweigh the 19 evidence. Eveland argues that ALJ failed to account for her headaches and chronic 20 fatigue, ECF No. 17 at 17, but Eveland has not shown that the ALJ’s RFC assessment is 21 unsupported by substantial evidence much less even identified what specific alleged 22 23 11 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 12 of 21 1 limitation(s) was omitted by the ALJ. Accordingly, Eveland has not shown any 2 prejudicial error in the ALJ’s decision. 3 II. The ALJ reasonably weighed the medical opinions at issue. 4 A. The ALJ reasonably discounted Dr. Somershoe’s opinion. 5 In the present case, the ALJ assigned significant weight to the opinion of Kenneth 6 W. Littlefield, Psy.D., who examined Eveland. Tr. 25, 206-11. The ALJ found the 7 opinion supported by Dr. Littlefield own examination, which is a valid basis to assign 8 weight to a medical opinion. See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3). Because 9 Dr. Littlefield’s opinion is based on his own examination, it constitutes substantial 10 evidence supporting the ALJ’s decision. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 11 (9th Cir. 2001) ("Dr. Schatz's opinion alone constitutes substantial evidence, because it 12 rests on his own independent examination of Tonapetyan."). The ALJ was required to 13 consider Dr. Littlefield’s opinion as it was part of the record. See 20 C.F.R. 14 §§ 404.1520(a)(3) ("We will consider all evidence in your case record when we make a 15 determination or decision whether you are disabled."), 416.920(a)(3) (same). 16 Dr. Littlefield’s opinion conflicts with the opinion from Sherrie Somershoe, Ph.D. 17 Tr. 25, 1544-46. For example, Dr. Littlefield found that Eveland would have no problem 18 understanding and remembering simple instructions. Tr. 210. By contrast, 19 Dr. Somershoe opined that Eveland would have "moderate" to "marked" limitations 20 understanding and remembering instructions. Tr. 1544. Because their opinions conflict, 21 Dr. Somershoe’s opinion was not entitled to controlling weight. See 20 C.F.R. 22 23 12 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 13 of 21 1 §§ 404.1527(c)(2) ("If we find that a treating source's opinion on the issue(s) of the 2 nature and severity of your impairment(s)... is not inconsistent with the other substantial 3 evidence in your case record, we will give it controlling weight."), 416.927(c)(2) (same). 4 Because their opinions conflict, the ALJ needed to provide only specific and legitimate 5 reasons for discounting Dr. Somershoe’s opinion. See Lester v. Chater, 81 F.3d 821, 830 6 (9th Cir. 1996); Widmark v. Barnhart, 454 F.3d 1063, 1066-67 (9th Cir. 2006). 7 The ALJ reasonably did so here. First, the ALJ found Dr. Somershoe had a short-8 term treating relationship with Eveland. Tr. 25. The extent of the treatment relationship 9 is a valid consideration. See 20 C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i). Eveland is 10 correct in noting the ALJ erred in finding that Dr. Somershoe had a short-term treating 11 relationship.2 Eveland asks this Court to presume that this error evinces that the ALJ 12 failed to review the whole record. ECF No. 17 at 13. But, treating relationship is but one 13 factor the ALJ must consider. See generally 20 C.F.R. §§ 404.1527(c), 416.927(c). 14 Moreover, the ALJ stated she considered the "entire record." Tr. 23. But an error such 15 as is here should not give rise to such a sweeping presumption because "[w]here, as here, 16 the ALJ indicates he has considered all the evidence [the court’s] practice is to take the 17 ALJ at his word." Wall v. Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009) (quotation 18 2 See Tr. 25-26, 548 (Aug. 22, 2013), 557 (Aug. 1, 2013), 567-68 (July 18, 2013), 19 577 (June 20, 2013), 582 (June 13, 2013), 594 (May 30, 2013), 602 (May 16, 2013), 610 (Apr. 25, 2013), 618 (Apr. 18, 2013), 624 (Apr. 9, 2013), 628-37 (Apr. 10, 2013), 654 20 (Sept. 26, 2013), 668 (Sept. 5, 2013), 673 (Aug. 29, 2013), 684 (Aug. 22, 2013), 692 (Aug. 1, 2013), 931-32 (Oct. 6, 2013), 942-43 (Sept. 29, 2014), 955 (Sept. 15, 2014), 21 1152 (June 23, 2014), 1162 (June 2, 2014), 1305 (Feb. 24, 2014), 1358 (Jan. 13, 2014), 1366 (Jan. 6, 2014), 1435 (Nov. 7, 2013), 1438 (Oct. 31, 2013), 1440 (Oct. 24, 2013), 22 1448 (Oct. 3, 2013). 23 13 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 14 of 21 1 omitted). Furthermore, this error is harmless because the ALJ provided another valid 2 reason. See De Guzman v. Astrue, 343 F. App’ x 201, 206 n.5 (9th Cir. 2009) 3 (unpublished) (citing Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th 4 Cir. 2008), for the proposition that an error as to a reason provided for discounting a 5 medical opinion can be harmless). 6 The ALJ’s decision can be reasonably read to find that the greater objective 7 record, including the finding and opinions of Dr. Littlefield undermine Dr. Somershoe’s 8 opinion.3 A conflict with other evidence in the record is a valid reason to discount a 9 medical opinion. See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). Indeed, in 10 Tonapetyan, 242 F.3d at 1149, the Ninth Circuit specifically found "[t]he contrary 11 opinions of Drs. Schatz[, an examining doctor,]... serve[d] as [an] additional specific 12 and legitimate reason[] for rejecting the opinions of Drs. Gevorkian[, a treating doctor,] 13 and Ngaw, [an examining doctor,] and provide assurance that the record was sufficiently 14 developed" with regard to the issue of physical impairment. This finding is reasonable 15 because Eveland scored 30 out 30 on Dr. Littlefield Mini-Mental Status Exam (MMSE).4 16 Notably, this score is consistent with Dr. Somershoe’s findings, noting normal or fair 17 18 3 When reviewing the ALJ’s decision, "[e]ven when an agency'explains its decision with'less than ideal clarity,’ [the court] must uphold it'if the agency’s path may 19 reasonably be discerned.’" Molina, 674 F.3d at 1121 (quoting Alaska Dep’t of Envtl. Conservation, 540 U.S. at 497). 20 4 A score out of 24 out of 30 or higher is "generally considered'normal.’" Jessica N. Link, et al., Assessing Voting Competence and Political Knowledge: Comparing 21 Individuals with Traumatic Brain Injuries and "Average" College Students, 11 Election L.J. 52, 58 (2012) (citing Paul S. Appelbaum, et al., The Capacity to Vote of Persons 22 With Alzheimer’s Disease, 162 Am. J. Psychiatry 11, at 2094-2100 (2005)). 23 14 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 15 of 21 1 thought process, insight, and judgment.5 See, e.g. Tr. 548, 559, 1164, 1305-06, 1367, 2 1511, 1519. The ALJ also noted that Eveland’s condition improved with treatment as 3 indicated by her improved mood. Tr. 24, 1516, 1525, 1550. These findings certainly 4 undermine Dr. Somershoe’s opinion that Eveland is extremely limited in her ability to 5 adapt and concentrate. Tr. 1544-45. 6 Eveland speculates that Dr. Somershoe’s opinion is consistent with other evidence 7 in the record. See ECF No. 17 at 14-15. This is simply an invitation for this Court to 8 reweigh the evidence, which is not permitted. Winans, 853 F.2d at 644-45. 9 Dr. Somershoe’s opinion also conflicts with Eveland’s daily activities, which 10 include the ability to take care of her disabled husband; help her two children with 11 homework, cook occasional meals and do chores, crochet, and write poetry. Tr. 25, 137, 12 161, 1613, 1618. Although the ALJ did not cite this reason when discounting Dr. 13 Somershoe’s opinion in particular, the Court can rely on this reason under harmless error 14 principles. Because the ALJ found these activities supported the RFC assessment and Dr. 15 Somershoe’s opinion conflicts with the RFC assessment, this Court can reasonably 16 conclude these activities undermine Dr. Somershoe’s opinion. Cf. Molina, 674 F.3d at 17 1118–19 (explaining there no basis for concluding that an ALJ's failure to discuss... 18 testimony expressly is likely to affect the outcome in situations where the testimony is 19 similar to other testimony that the ALJ validly discounted...."); Marsh v. Colvin, 792 20 5 Dr. Somershoe frequently reported sad or anxious mood, but when assessing mood in a mental status exam, "[t]he examiner asks for a subjective self-report of mood 21 and describes the patient's objective emotional appearance, or'affect’ (e.g., irritable, indignant, elated)." Robert P. Roca, M.D., M.P.H., Determining Decisional Capacity: A 22 Medical Perspective, 62 Fordham L. Rev. 1177, 1179 (1994) (emphasis added). 23 15 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 16 of 21 1 F.3d 1170, 1173 (9th Cir. 2015) (explaining that harmless error principles apply to error 2 in weighing a treating physician’s opinion). 3 B. The ALJ reasonably interpreted Dr. Littlefield’s opinion. 4 Eveland argues that Dr. Littlefield’s opinion supports greater limitations. ECF No. 5 17 at 14. The Ninth Circuit has found that an ALJ is not required to presume that 6 generalities translate into specific limitations. See Turner v. Comm’r of Soc. Sec. Admin., 7 613 F.3d 1217, 1222 (9th Cir. 2010) (explaining that without concrete limitations, the 8 ALJ was not required to reject problems, such as that the claimant isolated himself, "was 9 easily distracted" and had a "startle response"); Meanel v. Apfel, 172 F.3d 1111, 1114 10 (9th Cir. 1999), as amended (June 22, 1999) ("Dr. Manos’ mere statement that Meanel 11 experienced some diminution in her concentration skills falls short of an informed 12 opinion that Meanel’s pain and diminished concentration skills would significantly 13 interfere with her ability to work."). Here Dr. Littlefield noted that Eveland would have 14 "difficulty," and feel "inhibit[ed]" or unwilling. Tr. 210. The ALJ was not required to 15 presume that Dr. Littlefield meant that Eveland’s problems would preclude her from 16 working in jobs with appropriate RFC limitations. 17 Furthermore, the ALJ’s interpretation of Dr. Littlefield’s opinion is buttressed by 18 Tasneem Khan, Ed.D., and Sheri L. Simon, Ph.D., who considered Dr. Littlefield’s notes, 19 Tr. 40 and 60, and found Eveland had limitations, which were consistent in the RFC 20 assessment, compare Tr. 23 with Tr. 43-45, 63. See also Tr. 27 (assigning State agency 21 psychologist’s opinion "great weight"). The ALJ may rely on the State agency 22 psychologist’s to "translate" a medical opinion like Dr. Littlefield’s into "concrete 23 16 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 17 of 21 1 limitations." Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Finally, 2 because the ALJ’s assessment of Dr. Littlefield’s opinion is reasonable, it is entitled to 3 deference. Molina, 674 F.3d at 1111. 4 Contrary to Eveland’s contention, the ALJ was entitled to rely on the opinions of 5 the State agency medical consultants. See ECF No. 17 at 15-16. Familiarity with the 6 record is but one factor in considering medical opinions. See 20 C.F.R. 7 §§ 404.1527(c)(6), 416.927(c)(6). In this case, no medical source was familiar with the 8 entirety of the record. Furthermore, "opinion of a non-examining medical expert... may 9 constitute substantial evidence when it is consistent with other independent evidence in 10 the record." Tonapetyan, 242 F.3d at 1149. Independent evidence includes consultative 11 examiners findings. See id. ("Dr. Brown's opinion constitutes substantial evidence, 12 because it rests on Dr. Schatz's objective findings...."). As discussed above, 13 Dr. Malak’s opinion is supported by Dr. Brigg’s examination. See supra § I.A. 14 Likewise, as discussed in this section, Drs. Khan and Simon’s opinions are supported by 15 Dr. Littlefield’s findings. See supra § II.B. Accordingly, their opinions constitute 16 substantial evidence. 17 Eveland is correct in noting that "the greater objective record" is itself vague. 18 ECF No. 17 at 15-16. Nevertheless, this Court can reasonably discern the ALJ’s path. 19 Alaska Dep’t of Envtl. Conservation, 540 U.S. at 497. This is especially true given that 20 the ALJ specifically linked the opinions of the State agency reviewing physicians with 21 the State agency examining physician. See Tr. 26. Thus, the ALJ’s decision can 22 reasonably be inferred to refer to their opinions. 23 17 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 18 of 21 1 C. The ALJ reasonably discounted Dr. Landan’s opinion. 2 The ALJ reasonably discounted the opinion of Derek Landan, M.D. Tr. 26, 506-3 10. First, Dr. Landan’s opinion conflicts with the opinions of Drs. Briggs, Malak, and 4 Ernest Griffith, M.D. Compare Tr. 506-10 with Tr. 40, 56, 201-04. Accordingly, 5 Dr. Landan’s opinion was not entitled to controlling weight. 20 C.F.R. 6 §§ 404.1527(c)(2), 416.927(c)(2). The ALJ could reasonably discount Dr. Landan’s 7 opinion for specific and legitimate reasons. See Lester, 81 F.3d at 830; Widmark, 454 8 F.3d at 1066-67. The conflicting opinion of Dr. Briggs alone constitutes a valid reason to 9 discount Dr. Landan’s opinion because Dr. Brigg’s opinion is supported by his own 10 examination and constitutes substantial evidence supporting the ALJ’s decision. See 11 Tonapetyan, 242 F.3d at 1149. 12 The ALJ found Dr. Landan rendered an opinion outside of his specialty. Tr. 26, 13 508-10. Specialty is a valid consideration. See 20 C.F.R. §§ 404.1527(c)(5), 14 416.927(c)(5). It is certainly a valid consideration in a case where the ALJ had the 15 benefit of an examining psychologist’s opinion, as here. See supra II.A-B (discussing 16 Dr. Littlefield’s opinion). 17 The ALJ also found that Dr. Landan relied on Eveland’s subjective complaints. 18 Tr. 26. "If a treating provider's opinions are based'to a large extent’ on an applicant's 19 self-reports and not on clinical evidence, and the ALJ finds the applicant not credible, the 20 ALJ may discount the treating provider's opinion." Ghanim v. Colvin, 763 F.3d 1154, 21 1162 (9th Cir. 2014) (quotation omitted). The ALJ’s finding is supported by substantial 22 23 18 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 19 of 21 1 evidence because Dr. Eveland specifically quoted Eveland when completing the mental 2 capacity assessment. Tr. 509 ("inconsistent" and "suffer in silence"). 3 Furthermore, a review of exhibit 3F—Tr. 213-56—actually noted that Eveland can 4 perform light duty work. Tr. 232. The Ninth Circuit has affirmed that an ALJ may find a 5 conflict between a medical opinion and treatment notes. See Bayliss, 427 F.3d at 1216 6 (describing this finding as "a permissible determination within the ALJ's province"). 7 Finally, the ALJ found Dr. Landan’s opinion conflicts with Eveland’s daily 8 activities. Tr. 26. This is a valid basis to discount a medical opinion. See Rollins v. 9 Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (discounting medical opinion because the 10 "restrictions appear to be inconsistent with the level of activity that Rollins engaged in by 11 maintaining a household and raising two young children, with no significant assistance 12 from her ex husband"). The ALJ’s finding is supported by substantial evidence. For 13 example, Dr. Landan opined that Eveland could never pick up 10 pounds. Tr. 507. 14 Nevertheless, Eveland was able to care of her disabled husband. Tr. 25, 137. Dr. Landan 15 opined that Evenand had moderate to extreme limitations in understanding, memory, and 16 concentration. Tr. 508. Nevertheless, Eveland was able to help her two children with 17 homework, cook occasional meals and do chores, and pursue therapeutic hobbies, such as 18 crocheting and writing poetry. Tr. 25, 137, 161, 1613, 1618. 19 III. In the unlikely event that reversal is warranted, this matter should be remanded to the Agency for further administrative proceedings in lieu of 20 a finding of disability. 21 The Ninth Circuit has sometimes awarded benefits in cases where it concluded 22 that the ALJ erred in rejecting medical opinions or subjective complaints (which the 23 19 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 20 of 21 1 Court then credited as true).6 Eveland is not seeking an award of benefits or finding of 2 disability. ECF No. 17 at 20. Thus, in the unlikely event that reversal is warranted, then 3 remand for further administrative proceedings would be warranted. Nevertheless, the 4 Commissioner maintains that the ALJ’s decision is supported by substantial evidence and 5 is free of harmful error. Because the ALJ applied the proper legal standards and 6 substantial evidence supports her findings, the ALJ’s final decision should be affirmed. 7 RELIEF REQUESTED 8 For the reasons set forth above, the Commissioner requests the Court enter 9 judgment affirming the ALJ’s decision pursuant to 42 U.S.C. § 405(g). 10 DATED this 16th day of February 2017. 11 Respectfully submitted, 12 ELIZABETH A. STRANGE Acting United States Attorney 13 District of Arizona 14 s/Lars J. Nelson LARS J. NELSON 15 Special Assistant United States Attorney 16 Of Counsel for the Defendant: 17 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 18 Office of the General Counsel, Region X 701 Fifth Avenue, Suite 2900 M/S 221A 19 Seattle, WA 98104-7075 20 6 While acknowledging that it is part of this circuit’s law, the Commissioner maintains that this Court’s credit-as-true rule is contrary to statute and Supreme Court 21 cases addressing basic administrative law principles, e.g., Orlando Ventura, 537 U.S. at 16. See Vasquez v. Astrue, 572 F.3d 586, 601 (9th Cir. 2009) (amended opinion) 22 (O’Scannlain, J., dissenting). 23 20 24 Case 2:16-cv-02840-SRB Document 18 Filed 02/16/17 Page 21 of 21 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Defendant's Responsive Brief was filed 3 with the Clerk of the Court on February 16, 2017, using the CM/ECF system, 4 which will send notification of such filing to the following: Howard D Olinsky. 5 6 s/Lars J. Nelson LARS J. NELSON 7 Special Assistant U.S. Attorney Office of the General Counsel 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 21 24

ORDER - Reversing the decision of the Commissioner of Social Security and remanding the case for further proceedings in accordance with this Order. IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly. Signed by Judge Susan R Bolton on 09/14/2017.

Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 1 of 22 1 2 3 NOT FOR PUBLICATION 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Angela C. Eveland, No. CV-16-02840-PHX-SRB 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Angela C. Eveland applied for, and was denied, disability insurance 16 benefits and supplemental security income under the Social Security Act. Plaintiff filed a 17 Complaint seeking judicial review of the Social Security Administration’s denial. (Doc. 18 1.) The Court now considers Plaintiff’s Opening Brief ("Pl.’s Br.") (Doc. 17) and 19 Defendant’s Response Brief ("Def.’s Br.") (Doc. 18).1 20 I. BACKGROUND 21 Plaintiff was 47-years-old as of her alleged onset date and filed an application for 22 disability insurance benefits on July 11, 2012, and for supplemental security income on 23 July 17, 2012, alleging that her disability began on February 24, 2012. (R. at 19, 27.) Her 24 claims were initially denied on June 18, 2013, and upon reconsideration on November 8, 25 2013. (R. at 19.) Plaintiff then requested a hearing, which was held before Administrative 26 Law Judge ("ALJ") Thomas Cheffins on December 1, 2014. (R. at 19.) Vocational 27 Expert ("VE") Kathryn A. Atha and Plaintiff testified at the hearing. (R. at 19.) At the 28 1 Plaintiff did not file a Reply Brief. Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 2 of 22 1 hearing, Plaintiff amended her disability onset date to January 1, 2014, due to 2 unemployment collected through 2013. (R. at 19, 1593.) The ALJ issued an unfavorable 3 decision on February 5, 2015, in which he found that Plaintiff was not disabled from 4 January 1, 2014 through the date of his decision. (R. at 16, 19.) The Appeals Council 5 denied Plaintiff’s request for review on June 21, 2016, making the ALJ’s decision the 6 final decision of the Commissioner. (R. at 7.) Plaintiff now appeals. 7 A. Relevant Medical Evidence2 8 Plaintiff suffers from the following impairments, which the ALJ determined were 9 severe: "migraine headaches, chronic fatigue syndrome, tumor on lower section of short 10 bowel, pancreatitis, an affective disorder, and anxiety disorder with panic." (R. at 21.) 11 She also claims to suffer from lower back pain, knee impairment, and upper extremity 12 tenosynovitis. (Pl.’s Br. at 17.) 13 1. Treating Physicians 14 a. Derrick Landan, M.D. 15 Dr. Landan was Plaintiff’s primary care physician for her stomach and bowel 16 issues from May 2006 to April 2013. (R. at 213-256.) In May 2006, Plaintiff reported a 17 13-pound weight loss over two weeks with severe cramping and diarrhea. Dr. Landan 18 noted that her problems were likely due to bile irritation and prescribed lomotil and 19 viokase. (R. at 253.) On June 20, 2006, Dr. Landan noted that he spoke with Plaintiff 20 regarding her ER visit and CT scan, which revealed a fatty liver and diastasis of her 21 muscles. (R. at 249.) In May 2008, Plaintiff reported continuing to experience diarrhea 22 and nausea, and Dr. Landan opined that "[s]tress obviously increases her symptoms." (R. 23 at 247.) He also noted problems with her blood sugar and peripheral edema. (R. at 247.) 24 A January 2010 microscopic study revealed mild duodenal lymphocytosis with mild 25 peptic changes in the small bowel, mild chronic inactive gastritis in the stomach, and 26 gastric-type mucosa with mild chronic inflammation in the esophagus. (R. at 242.) Dr. 27 2 Because Plaintiff amended her alleged onset date to January 1, 2014, the Court 28 focuses its summary of the medical evidence to records immediately preceding and after that date.-2-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 3 of 22 1 Landan diagnosed Plaintiff with eosinophilic esophagitis following the study, which he 2 explained is aggravated by consuming foods containing allergens. (R. at 234.) On 3 February 21, 2013, Plaintiff presented complaining of edema in her legs and reported that 4 her socks were leaving marks on her legs. (R. at 226.) She also reported that she has to 5 take four to five lomotil pills at each dose to control her urgent diarrhea. (R. at 226.) 6 On June 21, 2013, Dr. Landan completed a mental and physical residual functional 7 capacity questionnaire in which he listed Plaintiff’s physical diagnoses as abdominal 8 pain, diarrhea, and malabsorption. (R. at 506.) He opined that Plaintiff’s symptoms are 9 constantly severe enough to interfere with attention at work and that she would need to 10 lie down in excess of normal work breaks. (R. at 506.) He opined that Plaintiff can sit for 11 30 minutes at a time and one to two hours total and can stand or walk for ten minutes at a 12 time and one hour total. (R. at 506.) Dr. Landan also opined that Plaintiff would need to 13 shift positions at will and take unscheduled breaks every hour for five to 15 minutes 14 depending on pain and diarrhea. (R. at 506.) He opined that she can occasionally lift less 15 than 10 pounds and never more and that she would likely be absent from work more than 16 four times per month due to her conditions and treatments. (R. at 507.) 17 Dr. Landan also opined that Plaintiff would have mild limitations in the abilities to 18 maintain socially appropriate behavior; and moderate limitations in the abilities to 19 remember locations and procedures, remember and understand simple instructions, carry 20 out short and simple instructions, make work-related decisions, ask simple questions, 21 accept instructions and criticism, and take appropriate precautions for normal hazards. (R. 22 at 508-10.) He opined that Plaintiff would have marked limitations in the abilities to 23 understand and remember detailed instructions, carry out detailed instructions, perform at 24 a consistent pace without unreasonable breaks, interact appropriately with the general 25 public, and use public transportation; and extreme limitations in her ability to maintain 26 attention and concentration for extended periods and perform work within a normal 27 schedule. (R. at 508-10.) 28 b. Department of Veteran’s Affairs ("VA")-3-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 4 of 22 1 It appears that Plaintiff received most of her medical care during the relevant 2 period at the VA. Her primary mental health care provider was Sherri Somershoe, Ph.D., 3 who was Plaintiff’s one-on-one therapist. 4 i. Physical Health Records 5 Plaintiff reported for a follow-up on November 7, 2013, during which the 6 physician noted that Plaintiff has a complicated GI history with "what seems to be 7 functional diarrhea with possible bile acid exacerbation. (R. at 1504.) On November 15, 8 2013, Plaintiff had an upper GI endoscopy which showed a normal duodenum but 9 mucosal abnormalities in the esophagus and stomach. (R. at 1488.) On December 11, 10 2013, Plaintiff had an MRI of her right knee that showed slight narrowing, which was 11 usual in appearance, and the findings were overall unremarkable. (R. at 758.) On 12 December 12, 2013, Plaintiff reported a sore throat with difficult swallowing since her 13 endoscopy, and she reported having three loose bowel movements per day. (R. at 1392.) 14 The examiner noted she appeared tired. (R. at 1392.) On December 16, 2013, Plaintiff 15 reported complaining of right knee pain. (R. at 1388.) She had arthroscopy on her knee in 16 2009, and reported that her knee brace did not fit correctly and caused more pain. (R. at 17 1389.) The examiner noted her patella and medial joint line were tender and 18 recommended consulting an orthopedist. (R. at 1391.) On December 23, 2013, Plaintiff 19 called the triage call center reporting severe body aches, shooting pain in the mid-back, 20 and swelling in her legs. (R. at 1387.) She was instructed to seek medical care 21 immediately. (R. at 1387.) On December 25, 2013, Plaintiff presented to the emergency 22 department reporting body aches for three days and altered mentation. (R. at 1385.) Her 23 speech was very slow and slurred. (R. at 1385.) 24 On January 16, 2014, Plaintiff experienced a lot of complications after swallowing 25 fluticasone, and the examiner noted that she was jaundiced the previous week with right 26 flank pain. (R. at 1352.) On January 21, 2014, Plaintiff had an upper GI endoscopy with 27 normal results. (R. at 1338.) On February 4, 2014, Plaintiff had an MRI of her right knee 28 that showed some patellar tendinopathy and no meniscal or ligamentous injury. (R. at-4-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 5 of 22 1 745.) On February 12, 2014, Plaintiff reported continued pain in her right knee and an 2 injury to her right shoulder from a fall. (R. at 1318.) The physician noted no abnormal 3 findings upon examination of her knee, but noted tenderness and pain with overhead 4 reaching in the right shoulder. (R. at 1318.) On February 13, 2014, Plaintiff reported right 5 upper quadrant pain with intermittent yellowing of her skin and eyes. (R. at 1315.) Dr. 6 Landan noted diffuse tenderness upon examination. (R. at 1316.) On March 11, 2014, 7 Plaintiff presented with three plus pitting edema and a distended abdomen. (R. at 1299.) 8 On March 14, 2014, Plaintiff’s edema was +2 in her left lower extremity and +1 in her 9 right lower extremity. (R. at 1297.) She reported her legs and arms were swollen and 10 painful to the touch. (R. at 1297.) On March 16, 2014, Plaintiff presented reporting a 11 migraine and edema. (R. at 1284.) Plaintiff was directed to follow-up with her primary 12 care physician. (R. at 1288.) On March 24, 2014, Plaintiff reported abdominal pain and 13 black stool. (R. at 1258.) She reported that she ate something spicy and had several black 14 formed stools for several days thereafter and that she had been taking substantial amounts 15 of her anti-diarrhea medication out of fear of having diarrhea. (R. at 1258.) She also 16 reported dizziness and occasional shortness of breath. (R. at 1258.) The examiner noted 17 no edema and that the anti-diarrhea medications can cause bloating and abdominal pain. 18 (R. at 1262.) Plaintiff had diffuse tenderness in her abdomen and tested positive for blood 19 in her stool, although there was no evidence of an active GI bleed. (R. at 739-40, 1266.) 20 On March 31, 2014, Plaintiff appeared for a rheumatological consultation. (R. at 21 1212-13.) Plaintiff reported joint pain through her right elbow, hand, and wrist. (R. at 22 1213.) Elizabeth Chang, M.D., found full pain-free range of motion in Plaintiff’s right 23 shoulder, elbow, wrist, and hand, but she did note some tenderness and edema, a positive 24 Finkelstein’s test in the right hand, and early Herberden’s and Bouchard’s deformities. 25 (R. at 1216.) Dr. Chang opined that the test results strongly indicate tenosynovitis. (R. at 26 1219.) Dr. Chang also ordered an MRI of Plaintiff’s knee, which returned normal results 27 except for patella alta. (R. at 1218.) 28 On May 12, 2014, Plaintiff had a physical examination before an endoscopy,-5-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 6 of 22 1 which was normal except for moderate right upper quadrant tenderness on palpation. (R. 2 at 1184.) On May 22, 2014, Plaintiff reported continuing abdominal pain, nausea, and 3 dizziness. (R. at 1173.) Dr. Landan noted diffuse tenderness upon examination. (R. at 4 1175.) On May 31, 2014, Plaintiff reported left hip pain with pain radiating into her 5 buttock. (R. at 1168.) The examiner noted pain upon palpation of the left SI joint. (R. at 6 1168.) On June 28, 2014, Plaintiff presented complaining of a headache for four days 7 with nausea. (R. at 1141.) She also reported shortness of breath and heart palpitations. (R. 8 at 1141.) The examiner noted tenderness in her right sub-occipital region. (R. at 1142.) 9 On July 14, 2014, Plaintiff had an upper GI endoscopy that revealed mucosal 10 abnormalities in her stomach and duodenum as well as an inactive ulcer. (R. at 1123.) 11 The physician observed upper abdominal tenderness and referred Plaintiff to surgery for 12 her ulcer. (R. at 1122-23.) On July 23, 2014, another physician opined he would be "very 13 careful" before recommending further surgery for ulcers because he did not feel it would 14 resolve Plaintiff’s abdominal issues and carried significant risks. (R. at 1118.) On July 15 24, 2014, Plaintiff presented to the emergency department complaining of convulsions 16 over the previous two weeks due to low iron. (R. at 1073.) She was observed to be 17 slightly photophobic due to headache, had hypoactive bowel sounds, mild diffuse 18 tenderness to palpation, moderate deep tenderness to palpation in the epigastric region, 19 and low iron and red blood cell counts. (R. at 1077.) Plaintiff required a transfusion to 20 address her anemia because iron supplements had not helped at all over the past month. 21 (R. at 1083.) On October 15, 2014, Plaintiff had surgery to correct her ulcers, namely a 22 vagotomy and antrectomy with roux-en-y gastrojejunostomy. (R. at 1472.) 23 ii. Mental Health Records 24 Plaintiff received both medication management and therapy through the VA. 25 Plaintiff had numerous therapy appointments with Dr. Somershoe.3 At her intake 26 3 See R. at 548 (Aug. 22, 2013), 557 (Aug. 1, 2013), 567-68 (July 18, 2013), 577 27 (June 20, 2013), 582 (June 13, 2013), 594 (May 30, 2013), 602 (May 16, 2013), 610 (Apr. 25, 2013), 618 (Apr. 18, 2013), 624 (Apr. 9, 2013), 628-37 (Apr. 10, 2013), 654 28 (Sept. 26, 2013), 668 (Sept. 5, 2013), 673 (Aug. 29, 2013), 692 (Aug. 1, 2013), 931-32 (Oct. 6, 2013), 942-43 (Sept. 29, 2014), 955 (Sept. 15, 2014), 1152 (June 23, 2014), 1162-6-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 7 of 22 1 appointment, Dr. Somershoe opined that Plaintiff meets the criteria for PTSD, and her 2 depression scale score showed that she warrants treatment for depression with 3 medication, psychotherapy, or a combination. (R. at 625-27.) Plaintiff reported a history 4 of sexual trauma and child sex abuse. (R. at 631.) She reported sexual abuse by a male 5 babysitter from ages seven to nine, sexual abuse by her father, and sexual abuse by her 6 father’s first cousin. (R. at 633.) Plaintiff entered the military in 1983 and was discharged 7 in 2011 for too many unexcused absences due to medical reasons. (R. at 634.) She 8 reported that she was raped three times while in the military. (R. at 635.) She also 9 reported chronic pain in her abdominal area at a level eight to nine daily. (R. at 635.) 10 Most of Plaintiff’s therapy sessions consisted of around 45 minutes of imaginal exposure 11 therapy in which Plaintiff was directed to recount her memories of her various traumas, 12 after which she and Dr. Somershoe would work to process the resulting emotions and 13 reactions. (See, e.g., R. at 558, 568, 654, 1359, 1438.) Dr. Somershoe also often noted 14 that Plaintiff was anxious and sometimes tearful. (See, e.g., R. at 618, 655, 944, 1164, 15 1360.) 16 On November 17, 2014, Dr. Somershoe completed a mental capacity assessment 17 for Plaintiff. (R. at 1544.) She listed Plaintiff’s diagnoses as major depressive disorder, 18 PTSD, and a rule-out diagnosis for panic disorder. (R. at 1544.) For several of the 19 functional limitations, Dr. Somershoe indicated a range of limitation and noted that the 20 lower end of the range represents when Plaintiff is less anxious. (R. at 1544.) She opined 21 that Plaintiff is moderately to extremely limited in her abilities to remember locations and 22 procedures, remember and understand simple or detailed instructions, carry out simple 23 instructions, make simple work-related decisions, and interact appropriately with the 24 general public; moderately to markedly limited in her ability to respond appropriately to 25 changes in the work setting; and markedly to extremely limited in her abilities to carry 26 out detailed instructions and maintain concentration for extended periods. (R. at 1544-27 28 (June 2, 2014), 1305 (Feb. 24, 2014), 1358 (Jan. 13, 2014), 1366 (Jan. 6, 2014), 1435 (Nov. 7, 2013), 1438 (Oct. 31, 2013), 1440 (Oct. 24, 2013).-7-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 8 of 22 1 46.) Dr. Somershoe also opined that Plaintiff is extremely limited in her abilities to 2 perform work activities within a normal schedule, sustain an ordinary routine without 3 special supervision, work in coordination with or proximity to others, complete a normal 4 workday and week without interruption from symptoms, perform at a consistent pace 5 with normal breaks, accept instructions and criticism from supervisors, get along well 6 with co-workers, and travel in unfamiliar places or use public transportation. (R. at 1544-7 46.) She opined that Plaintiff is moderately limited in her abilities to ask simple questions 8 or request assistance, take appropriate precautions for normal hazards, and set realistic 9 goals or make plans independently of others. (R. at 1544-46.) Dr. Somershoe further 10 opined that Plaintiff is unable to work with males and that she may come across as high 11 functioning "but in reality can be severely incapacitated." (R. at 1545.) 12 Plaintiff was seen for medication management on October 1, 2013, and she 13 reported taking her venlafaxine and clonazepam twice daily because she was under the 14 impression her doctor had discussed the increase. (R. at 1525.) She reported feeling better 15 on the increased dose with less irritability and anxiety and better sleep. (R. at 1525.) On 16 January 2, 2014, Plaintiff reported still feeling edgy with nightmares, but reported less 17 hypervigilance. (R. at 1371.) She reported that her panic attacks had decreased to one to 18 two per week if she takes her medicine. (R. at 1371.) The psychiatrist opined that 19 Plaintiff might benefit from a higher dose of her clonazepam and venlafaxine but that she 20 was experiencing good results with her current dose and has had a history of adverse side 21 effects from medication. (R. at 1375.) On August 25, 2014, Plaintiff missed a therapy 22 appointment due to a panic attack. (R. at 972-73.) 23 c. Hospital Records 24 On March 15, 2014, Plaintiff presented at the emergency room reporting swollen 25 hands and feet for two days and lower back pain that is worse with movement. (R. at 26 1528.) The attending physician found no tenderness in her extremities and full range of 27 motion. (R. at 1529.) He did note trace pitting lower extremity edema. (R. at 1529.) An 28 examination of Plaintiff’s lower back showed mild to moderate decrease in her spine-8-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 9 of 22 1 movement. (R. at 1529.) Films of her spine showed mild posterior bulging at L4-L5 2 without compromise of the thecal sac or neural foramina. (R. at 1532.) The attending 3 physician found her back pain was most likely caused by a strain of the muscles or 4 ligaments supporting the spine and would heal within days to weeks. (R. at 1533.) 5 Plaintiff was discharged with instructions to follow up with her primary care physician. 6 (R. at 1532.) 7 On March 19, 2014, Plaintiff presented at the emergency room complaining of 8 lower back pain that started gradually after she bent down to pick up her dog and felt like 9 spasming that sometimes radiated into her legs. (R. at 1549.) Plaintiff was discharged 10 with prescriptions for pain killers, instructions for gentle back exercises, and instructions 11 to follow up with her primary care physician. (R. at 1551.) 12 On April 28, 2013, Plaintiff had an upper endoscopy that revealed one large ulcer 13 and two smaller ulcers in the gastric antrum with no active bleeding. (R. at 403.) She 14 initially reported to the emergency room stating that she had lower abdominal pain and 15 three loose bowel movements which were black and tarry. (R. at 398.) She was given 16 medication and told to follow up with her primary care physician. (R. at 390.) On May 17 26, 2013, Plaintiff returned to the emergency room complaining of abdominal pain with 18 nausea, vomiting, diarrhea, and headache for four days as well as pain in her right knee 19 and was discharged with instructions to follow up with her primary care physician. (R. at 20 316.) On June 11, 2013, Plaintiff presented complaining of leg pain, was diagnosed with 21 a hematoma, and was discharged with instructions to ice the affected area and follow up 22 with her primary care physician. (R. at 295.) An x-ray showed no fracture, no soft tissue 23 swelling, and no joint effusion at the left knee. (R. at 265.) 24 2. Non-Treating Physicians 25 a. Consultative Examiners 26 i. Brian Briggs, M.D. 27 Dr. Briggs completed a physical consultative examination on February 18, 2013. 28 (R. at 201.) At the examination, Plaintiff reported three migraines per month lasting three-9-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 10 of 22 1 days each, anxiety her whole life due to sexual abuse as a child, and four to five bowel 2 movements per day after eating. (R. at 201.) Plaintiff’s current medications were 3 Phenergan, lomotil, lorazepam, Klonopin, Vicodin, and Lasix. (R. at 201.) Dr. Briggs 4 noted that Plaintiff has pancreatitis secondary to her 2006 surgery on her common bile 5 duct. (R. at 201.) He also noted that she has had an appendectomy, hysterectomy, 6 gallbladder surgery, surgery for a cyst in her right hand, and surgery on her right knee in 7 2008. (R. at 201.) Upon physical examination, Plaintiff was able to heel-toe walk 8 normally, squat, hop, and follow simple instructions. (R. at 202.) Her bowel sounds were 9 normal, her extremities revealing no clubbing or edema, and her range of motion was 10 normal in her shoulders, elbows, and wrists. (R. at 202.) Plaintiff’s range of motion in her 11 hips, knees, and ankles was normal, and there was no swelling or tenderness in her joints. 12 (R. at 203.) Spinal palpation was negative and the range of motion in her spine was 13 normal. (R. at 203.) Dr. Briggs listed her diagnoses as chronic diarrhea, migraine 14 headaches, recurrent pancreatitis, and anxiety, all by history only as he opined there were 15 no significant objective clinical findings at the evaluation. (R. at 203.) Dr. Briggs opined 16 that he did not believe Plaintiff’s conditions would impose any limitations for 12 17 continuous months. (R. at 204.) 18 ii. Kenneth Littlefield, Psy.D. 19 Dr. Littlefield performed a psychological consultative examination on April 10, 20 2013. (R. at 206.) His only source of information was Plaintiff herself. (R. at 206.) Dr. 21 Littlefield noted that Plaintiff was verbal throughout the interview but displayed 22 psychomotor agitation and appeared anxious. (R. at 206.) Plaintiff reported that she does 23 not have friends because of trust issues. (R. at 207.) She also reported being discharged 24 from the military in 2011 after being raped by her company commander. (R. at 207.) 25 Plaintiff reported that she was sexually traumatized by a babysitter at age seven and then 26 later physically and emotionally abused by her father. (R. at 207.) She also reported self-27 mutilation until the age of 12 and several other instances of sexual trauma as an adult. (R. 28 at 207.) She reported nightmares, reminder reactions, and flashbacks related to her sexual-10-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 11 of 22 1 trauma. (R. at 207.) Dr. Littlefield opined that Plaintiff appears to meet the criteria for 2 PTSD. (R. at 207.) 3 Plaintiff also reported having panic attacks in social situations including rapid 4 heartbeat, hyperventilation, racing thoughts, and hot flashes. (R. at 207.) She reported 5 needing her husband with her to calm her because she fears she will have a panic attack 6 and be trapped. (R. at 207.) Plaintiff also reported feelings of depression, isolation and 7 withdrawal, a loss of pleasure in her activities, recurrent thoughts about death or dying, 8 low self-esteem, and inappropriate guilt. (R. at 207.) Plaintiff scored 30 out of 30 on her 9 mini mental status examination and had no problems finding words or with memory or 10 recall. (R. at 208.) Dr. Littlefield opined that Plaintiff appears to meet the criteria for 11 major depressive disorder, panic disorder with agoraphobia, and PTSD. (R. at 209.) He 12 further opined that memory problems should not interfere with work-related 13 responsibilities, but that Plaintiff would likely have problems maintaining attention 14 during a regular work shift due to PTSD. (R. at 210.) He also opined that Plaintiff’s 15 anxiety is likely to inhibit her willingness to work with others and sustain an ordinary 16 routine. (R. at 210.) Dr. Littlefield noted that Plaintiff demonstrated a fair ability to 17 interact with others during the interview but that she is likely to have difficulty 18 interacting appropriately with the general public, asking simple questions, and getting 19 along with co-workers. (R. at 210.) He also opined that Plaintiff may have difficulty 20 responding to supervisory criticism. (R. at 210.) Finally, he opined that Plaintiff will 21 likely need emotional support to travel to unfamiliar places and may have difficulty 22 responding to work setting changes. (R. at 211.) 23 b. State Agency Consultants 24 i. Valeria Malak, M.D./Sheri Simon, Ph.D. 25 Drs. Malak and Simon completed the disability determination at the initial level on 26 June 18, 2013. (R. at 34.) Dr. Malak completed the physical determination, and, after 27 reviewing the evidence of record at that time, opined that Plaintiff has no medically 28 determinable impairments that can reasonably be expected to produce her alleged pain-11-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 12 of 22 1 and symptoms. (R. at 40.) She found no objective evidence of any of Plaintiff’s alleged 2 impairments. (R. at 40.) Dr. Simon completed the mental determination and opined that 3 Plaintiff is mildly limited in activities of daily living, moderately limited in social 4 functioning, and moderately limited in concentration, persistence, and pace. (R. at 41.) 5 She opined that Plaintiff is moderately limited in the ability to complete a normal 6 workday and week without interruptions from her symptoms and without an 7 unreasonable number and length of breaks. (R.at 43.) She also opined that Plaintiff is 8 moderately limited in her abilities to interact appropriately with the general public and 9 accept instructions and criticism from supervisors. (R. at 43-44.) Dr. Simon opined that 10 Plaintiff is not significantly limited in any other area. (R. at 43-44.) 11 ii. Ernest Griffiths, M.D./Tasneem Khan, Ed.D. 12 Drs. Griffiths and Khan completed the disability determination at the 13 reconsideration level on November 6, 2013. (R. at 49.) Dr. Griffiths completed the 14 physical determination and opined that despite Plaintiff’s hospitalization for ulcers in 15 April 2013, her condition remains non-severe. (R. at 58.) Dr. Khan completed the mental 16 determination and opined that Plaintiff is mildly limited in her activities of daily living 17 and moderately limited in social functioning and concentration, persistence, and pace. (R. 18 at 59.) She also opined that Plaintiff is moderately limited in her abilities to complete a 19 normal workday and week without interruption from psychological symptoms and 20 without an unreasonable number and length of breaks, interact appropriately with the 21 general public, and accept instructions and criticism from supervisors. (R. at 63.) 22 B. Other Evidence 23 1. Plaintiff’s Function Report 24 Plaintiff completed a function report on August 31, 2013. (R. at 157.) She reported 25 that she lived with her family and they lived with her mother-in-law for a short period. 26 (R. at 157.) Plaintiff reported that she was limited from working because her anxiety 27 makes it difficult to be around people, she cannot work with males, she has visuals during 28 the day about her past rapes, her knee pain limits her walking and climbing stairs, and her-12-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 13 of 22 1 medications cause her to be emotional and have memory loss. (R. at 157.) She reported 2 that she is hyper-vigilant day and night and that her husband is always with her if she has 3 to go out. (R. at 158.) She also reported that she cares for her husband because of his 4 unexplained seizures and that she is unable to sleep much at night due to dreams about 5 rape. (R. at 158.) Plaintiff reported that she is able to take care of her personal hygiene 6 although she is hyper-vigilant of her surroundings, her husband reminds her to shower 7 and sets out her medications, and she cooks only one meal every other week. (R. at 159.) 8 Plaintiff reported having difficulties doing house and yard work because she does not feel 9 like doing it and has no energy. (R. at 160.) She also reported going out once or twice a 10 week for short periods of time, always with her husband. (R. at 160.) Plaintiff reported 11 being able to handle money, watch television, crochet, and do puzzles. (R. at 161.) She 12 reported no regular time spent with others and reported the only places she goes on a 13 regular basis are church, the store, and doctors’ appointments. (R. at 161.) 14 Plaintiff reported having problems getting along with others because she does not 15 like to be yelled at. (R. at 162.) She also reported problems with lifting, squatting, 16 bending, standing, reaching, walking, sitting, kneeling, stair climbing, memory, 17 understanding, completing tasks, concentration, following instructions, using her hands, 18 and getting along with others. (R. at 162.) She reported that she is able to walk a half mile 19 before needing to rest for five to ten minutes, that she can follow written instructions 20 more often than not, and that her mind wanders when given spoken instructions. (R. at 21 162.) Plaintiff reported getting along okay with authority figures "until they disrespect 22 me," and she reported losing several jobs because of problems getting along with other 23 people because her medications made her too emotional and agitated. (R. at 163.) 24 2. Third Party Function Report 25 Plaintiff’s husband, Joe Jording, completed a function report on June 17, 2013. (R. 26 at 136.) He reported that he spends all day with Plaintiff and that her medications make 27 her "completely out of it." (R. at 137.) He reported that Plaintiff eats breakfast, takes a 28 nap from her medications, eats lunch, goes on a walk with him, takes her medication-13-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 14 of 22 1 again, and "it puts her out." (R. at 137.) Mr. Jording also corroborated Plaintiff’s report 2 that she takes care of him because of his seizures. (R. at 137.) He reported that Plaintiff 3 used to be able to go for walks, work, and go dancing but that she now has trouble 4 sleeping because her anxiety causes nightmares. (R. at 138.) Mr. Jording reported that 5 Plaintiff needs reminders to take her medications, she prepares meals a few times a week, 6 and is unable to do house or yardwork. (R. at 139.) He stated that Plaintiff cannot go 7 outside often because the heat exhausts her, and she cannot drive because of her anxiety 8 and medications. (R. at 140.) Mr. Jording stated that Plaintiff can occasionally spend time 9 with grandchildren when her medications allow her to but that "she can handle only so 10 many people in a room." (R. at 142.) He reported that Plaintiff cannot lift more than five 11 pounds and is unable to sit, stand, or walk longer than 15 minutes. (R. at 143.) Mr. 12 Jording stated that Plaintiff can follow written and spoken instructions pretty well, gets 13 along with authority figures very well, and has never lost a job due to problems getting 14 along with others. (R. at 143.) 15 3. VA Disability Rating Letter 16 On September 7, 2013, the VA issued a letter indicating that Plaintiff was 17 considered 50 percent disabled from service-related PTSD and zero percent disabled 18 from service-related carpal bossing in her right hand. (R. at 193.) 19 C. Hearing Testimony 20 1. Plaintiff’s Testimony 21 At the hearing, Plaintiff testified that she lost her assistant manager position at the 22 Super 8 Motel because she missed too many days for her health condition. (R. at 1605.) 23 She testified that the stress from working at the motel made her diarrhea flare up, she was 24 cramping really badly, and her medications knock her out. (R. at 1606.) Plaintiff testified 25 that her biggest obstacle to working is her anxiety because she gets "frazzled," she can’t 26 concentrate, and she’s hyper-vigilant. (R. at 1606.) She testified that although she was 27 looking for medical assisting back office work while she was receiving unemployment, 28 she could not currently do that work because she is remembering a lot of the things that-14-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 15 of 22 1 happened to her during the rape. (R. at 1607.) She testified that she experiences 2 symptoms of anxiety, such as heart pounding, inability to breathe, and wanting to find a 3 safe place a couple of times a day. (R. at 1607.) Plaintiff testified that she can read for 4 about a half hour before her mind starts to wander and that she passes time by watching 5 television and writing details about her attacks per her psychologist’s instructions. (R. at 6 1608.) 7 Plaintiff reported that although she was able to do well and work for a while after 8 her 2006 attack, she was in a car accident in 2012 that broke her sternum and she could 9 not breathe. (R. at 1609.) She testified that her anxiety symptoms increased ever since 10 that car accident because she started remembering sexual assault from when she was a 11 child. (R. at 1609.) She testified that her psychiatrist upped her venlafaxine dose to two 12 pills per day to help her not remember her nightmares and that it works well because she 13 sometimes does not remember what she did the day before. (R. at 1610.) She also 14 testified that her medications make her feel very tired and groggy. (R. at 1610.) Plaintiff 15 reported that her diarrhea was ten times worse than it was before her October 2014 ulcer 16 surgery because she has to eat several small meals, and she has diarrhea every time she 17 eats. (R. at 1611.) She reported that earlier in the year she needed to use the restroom 18 seven to ten times a day and within minutes of eating. (R. at 1611.) She also testified that 19 her diarrhea flares up after a therapy session. (R. at 1612.) Plaintiff reported that she 20 writes poetry about her experiences as a child and as an adult every Monday and Tuesday 21 for her therapy sessions. (R. at 1613.) She also reported that she no longer has to do 22 anything to take care of her husband because he has not had a seizure since March 2014. 23 (R. at 1614.) Plaintiff reported that she can go through a drive-thru by herself or to a 24 small market in their apartment complex at times when she knows it will not be busy. (R. 25 at 1615.) Plaintiff reported that when she was in the military, she was constantly in the 26 hospital with migraines or severe diarrhea because the four people who attacked her were 27 still there. (R. at 1616-17.) Plaintiff reported that she helps her stepsons do their 28 homework. (R. at 1618.) She also testified that she has never been hospitalized for mental-15-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 16 of 22 1 health issues because she was not going to kill herself. (R. at 1620.) 2 2. The VE’s Testimony 3 The ALJ asked the VE to assume someone of Plaintiff’s age, education, and work 4 experience who is able to perform work at all exertional levels with the following 5 limitations: the individual could only do work with one-to-two-step tasks, could 6 concentrate up to two hours at a time, could carry out simple instructions, could make 7 simple work-related decisions, and could work with things and data, but not people other 8 than ordinary supervision. (R. at 1624.) The VE testified that such a person could not 9 perform any of Plaintiff’s past work but that she could be a hand packager, advertising 10 material distributor, or nut sorter. (R. at 1624-25.) The ALJ then asked the VE to assume 11 the same person with the added limitation that work would be limited to occupations that 12 would allow a brief restroom break every two to two-and-a-half hours, would be in a 13 fixed location with easy access to a restroom, and could be performed while wearing an 14 incontinence pad. (R. at 1625-26.) The VE testified that such a person could be a nut 15 sorter, hand packager, or conveyor line bakery worker. (R. at 1626.) Plaintiff’s attorney 16 then asked the VE if a person who had the limitations opined by Dr. Somershoe would be 17 able to maintain employment, and the VE confirmed that a person with those limitations 18 would not be able to maintain employment. (R. at 1628.) The VE testified that the 19 particular limitations of concern were the inability to work with males; problems with 20 understanding and memory; problems with concentration, persistence, and pace; and the 21 inconsistency in social functioning due to anxiety. (R. at 1628.) The VE testified that a 22 person could be absent about once per month in the occupation she mentioned within 23 customary tolerances. (R. at 1629.) 24 D. The ALJ’s Decision 25 The ALJ found that Plaintiff has not engaged in substantial gainful activity since 26 January 2, 2014, and she has the following severe impairments: migraine headaches, 27 chronic fatigue syndrome, tumor on lower section of short bowel, pancreatitis, an 28 affective disorder, and anxiety disorder with panic. (R. at 21.) The ALJ found that-16-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 17 of 22 1 Plaintiff does not have a medically determinable severe lower back impairment because 2 she has not received regular treatment for a lower back condition and x-rays have showed 3 only mild posterior bulging at L4-L5. (R. at 22.) The ALJ concluded that none of 4 Plaintiff’s impairments, singly or in combination, meet or medically equal a listed 5 impairment. (R. at 22.) He found that Plaintiff does not meet paragraph B or paragraph C 6 criteria for mental illness because she has mild restrictions in her activities of daily living, 7 moderate restrictions in social functioning, moderate restrictions in concentration, 8 persistence, and pace, and has experienced no episodes of decompensation. (R. at 22.) 9 The ALJ concluded that Plaintiff has the residual functional capacity ("RFC") to perform 10 a full range of work at all exertional levels but with the following non-exertional 11 limitations: 12 She requires brief access to a bathroom every 2 – 2 ½ hours during an 8-hour workday, a fixed work location with easy access to a bathroom, and 13 she must be able to wear incontinence pads. The claimant can complete 1-2 step instructions, can concentrate and persist on tasks for 2 hours at a time, 14 carry out simple instructions and make simple work decisions, and work with things and data but not with people. 15 16 (R. at 23.) 17 The ALJ found that Plaintiff’s medically determinable impairments could 18 reasonably be expected to cause her symptoms, but that her statements concerning the 19 intensity, persistence, and limiting effects of her symptoms are not entirely credible. (R. 20 at 24.) He found that her reported mental health symptoms are not entirely credible 21 because she has no history of hospitalization, prescribed medication has resolved or 22 improved her condition, she can read for 30 minutes at a time before her mind starts to 23 wander, and she is able to write poetry as part of her mental health therapy. (R. at 24.) 24 The ALJ found that Plaintiff’s reported frequency and severity of diarrhea are not 25 supported by the medical record. (R. at 24.) He also found that Plaintiff’s stated activities 26 are inconsistent with her subjective complaints because she pays bills, cooks, cleans, does 27 laundry, and can go out of the house by herself. (R. at 25.) The ALJ also found it 28 inconsistent that Plaintiff reported being able to crochet, write poetry, help with her 11--17-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 18 of 22 1 and 14-year-olds’ homework, and care for her husband who is disabled due to seizures. 2 (R. at 25.) 3 The ALJ gave great weight to Dr. Littlefield’s psychological assessment because 4 he found it to be consistent with the greater objective record, including the opinions of 5 the state agency reviewing physicians. (R. at 25.) The ALJ gave no weight to Dr. 6 Somershoe’s functional capacity assessment "based on the short-term of Dr. Somershoe’s 7 treating relationship" with Plaintiff, noting that Dr. Somershoe only saw Plaintiff three 8 times over the course of a year. (R. at 25.) The ALJ also implied that her opinion was 9 inconsistent with the greater objective record, including the opinions of Dr. Littlefield. 10 (R. at 26.) The ALJ gave significant weight to Dr. Briggs’ opinion that Plaintiff’s 11 conditions would not impose any limitations lasting 12 continuous months because of the 12 objective nature of the examination and because he found it to be consistent with the 13 greater objective record. (R. at 26.) The ALJ gave no weight to Dr. Landan’s opinion 14 because he found it unsupported by the greater objective record, contradicted by other 15 medical opinions of record, based on Plaintiff’s subjective complaints, sympathetic, 16 outside of a medical specialty, unsupported by Dr. Landan’s own clinical examination 17 findings, and inconsistent with Plaintiff’s reported daily activities at the time of treatment 18 since she was working full-time at that time. (R. at 26.) The ALJ assigned marginal 19 weight to Plaintiff’s GAF scores of 40 to 45 because he found them unsupported by the 20 greater objective record, inconsistent with Plaintiff’s functioning at her consultative 21 psychological examination, and inconsistent with her overall level of functioning. (R. at 22 26.) The ALJ found statements from Plaintiff’s husband unpersuasive because they were 23 not supported by objective medical evidence. (R. at 27.) The ALJ gave minimal weight to 24 the VA’s 50 percent disability rating due to PTSD because he found that Plaintiff’s PTSD 25 results in no more than moderate limitations in mental functioning. (R. at 27.) The ALJ 26 gave great weight to the state agency reviewing physicians because he found their 27 opinions to be consistent with the greater objective record. (R. at 27.) 28 The ALJ found that Plaintiff is not able to perform past relevant work because of-18-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 19 of 22 1 her mental limitations, but that she is able to perform other work as a nut sorter, bakery 2 worker, or hand packer. (R. at 27-28.) 3 II. LEGAL STANDARDS AND ANALYSIS 4 The Social Security Act confines judicial review to evidence within the record to 5 determine whether the Commissioner’s findings are supported by substantial evidence 6 and whether the Commissioner applied the correct legal standards. 42 U.S.C. § 405(g); 7 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial 8 evidence means "such relevant evidence as a reasonable mind might accept as adequate 9 to support a conclusion." Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995). "The ALJ 10 is responsible for determining credibility and resolving conflicts in medical testimony." 11 Id. If the evidence can reasonably support either affirming or reversing the ALJ’s 12 decision, the court must uphold the decision. Id. Reviewing courts cannot accept post hoc 13 rationalizations for agency action and must limit their review to the grounds articulated in 14 the agency’s opinion. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th 15 Cir. 2009) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). 16 The Social Security Regulations set forth a five-step sequential process for 17 evaluating disability claims. See 20 C.F.R. § 404.1520(a)(4). "If a claimant is found to be 18'disabled’ or'not disabled’ at any step in the sequence, there is no need to consider 19 subsequent steps." Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. 20 § 404.1520). The claimant bears the burden of proof at steps one through four of the 21 sequential process. Id.; Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). At step 22 five, the burden shifts to the Commissioner to show that the claimant can perform other 23 substantial gainful work that exists in the national economy. Tackett, 180 F.3d at 1098; 24 Reddick, 157 F.3d at 721. Plaintiff argues that the ALJ erred by affording no weight to 25 treating psychologist Dr. Somershoe and by failing to account for limitations from severe 26 and non-severe impairments in the RFC. (Pl.’s Br. at 1.) 27 A. Dr. Somershoe 28 Plaintiff argues that the ALJ erred by affording no weight to treating psychologist,-19-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 20 of 22 1 Dr. Somershoe. (Pl.’s Br. at 12.) The opinion of a treating physician is generally entitled 2 to more weight than "the opinion of a nontreating physician because a treating physician 3'is employed to cure and has a greater opportunity to know and observe the patient as an 4 individual.’" Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995) (quoting 5 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)); see also 20 C.F.R. § 6 404.1527(c)(2). "To reject an uncontradicted opinion of a treating or examining doctor, 7 an ALJ must state clear and convincing reasons that are supported by substantial 8 evidence." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). "If a treating or 9 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only 10 reject it by providing specific and legitimate reasons that are supported by substantial 11 evidence." Id. 12 The ALJ gave no weight to Dr. Somershoe’s opinion due to the "short-term" of 13 her treating relationship with Plaintiff and because he presumably found it inconsistent 14 with the greater objective record, including Dr. Littlefield’s evaluation. (R. at 26.) As 15 Defendant concedes, the ALJ’s first given reason simply has no basis in fact. (Def.’s Br. 16 at 13.) Dr. Somershoe saw Plaintiff for therapy 26 times over the course of 19 months. 17 The carelessness evident in characterizing this as a "short-term" relationship, particularly 18 when considering that Dr. Littlefield—to whom the ALJ assigned great weight—had only 19 a one-hour relationship with Plaintiff, is alarming. Not only is this reason not supported 20 by substantial evidence, it is not supported by any evidence and is clearly in error. 21 Moving on to the ALJ’s implication that Dr. Somershoe’s opinion is inconsistent with the 22 greater objective record, the ALJ only pointed to Dr. Littlefield’s consultative report as 23 being inconsistent with Dr. Somershoe’s opinion. (R. at 26.) Although inconsistencies 24 between Dr. Littlefield’s report and Dr. Somershoe’s opinion are enough to lower the 25 standard required of the ALJ to "specific and legitimate reasons," they are not enough for 26 the Court to conclude that substantial evidence supports the ALJ’s determination that Dr. 27 Somershoe’s opinion is inconsistent with the greater objective record. First, Dr. 28 Littlefield’s examination occurred long before the amended onset date and therefore fails-20-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 21 of 22 1 to reflect any increased symptoms Plaintiff may have experience thereafter. Second, Dr. 2 Littlefield’s opinion is one small portion of the greater objective record, the lion’s share 3 of which is Dr. Somershoe’s treatment notes. Finally, although the two opinions differ 4 considerably with regard to the severity of limitations Plaintiff is likely to experience, 5 they are mostly similar with regard to the type of limitations opined. Furthermore, it is 6 unsurprising that Plaintiff appeared higher functioning than opined by Dr. Littlefield in 7 his consultative examination, as Dr. Somershoe noted that Plaintiff can often appear 8 higher functioning than she actually is. (R. at 1545.) The ALJ pointed to no other 9 evidence in the record, nor did he proffer any other explanations as to how Dr. 10 Somershoe’s opinion is inconsistent with the greater record. Embrey v. Brown, 849 F.2d 11 418, 421-22 (9th Cir. 1988) ("To say medical opinions are not supported by sufficient 12 objective findings or are contrary to the preponderant conclusions mandated by the 13 objective findings does not achieve the level of specificity our prior cases have 14 required."). Therefore, the Court finds that the ALJ’s decision to give no weight to the 15 opinion of Dr. Somershoe is not supported by substantial evidence and is reversible error. 16 B. RFC Formulation 17 Plaintiff also argues that the ALJ erred by failing to account for the limitations 18 from all of her impairments, both severe and non-severe, in his RFC formulation. (Pl.’s 19 Br. at 17.) Specifically, Plaintiff argues that the ALJ failed to account for limitations from 20 her migraine headaches, chronic fatigue syndrome, back condition, knee impairment, and 21 tenosynovitis in her right hand. (Id.) "In assessing RFC, the adjudicator must consider 22 limitations and restrictions imposed by all of an individual’s impairments, even those that 23 are not'severe.’" Titles II & XVI: Assessing Residual Functional Capacity in Initial 24 Claims, SSR 96-8P (S.S.A. July 2, 1996.) "While a'not severe’ impairment(s) standing 25 alone may not significantly limit an individual’s ability to do basic work activities, it 26 may—when considered with limitations or restrictions due to other impairments—be 27 critical to the outcome of a claim." Id. Here, the ALJ failed to discuss why limitations 28 from Plaintiff’s headaches and chronic fatigue syndrome were not included in the RFC.-21-Case 2:16-cv-02840-SRB Document 19 Filed 09/15/17 Page 22 of 22 1 Furthermore, the ALJ failed to explain why he did not even consider whether Plaintiff’s 2 knee impairment and tenosynovitis are medically determinable conditions much less 3 whether they result in any limitations that would affect Plaintiff’s RFC. Finally, the Court 4 concludes that the ALJ erred by finding that Plaintiff’s lower back condition was not a 5 medically determinable condition. The medical evidence shows that Plaintiff received 6 treatment on multiple occasions for lower back pain and an MRI showed bulging in the 7 lower spine. (R. at 1162, 1523, 1549-51.) The ALJ was required to consider the effects of 8 this condition even if he determined it was not severe. Therefore, the Court concludes 9 that the ALJ failed to adequately explain his decision to exclude limitations from many of 10 Plaintiff’s health conditions from his RFC and remands the case for a de novo RFC 11 determination. 12 III. CONCLUSION 13 The ALJ erred by failing to give specific and legitimate reasons supported by 14 substantial evidence to reject the opinion of Dr. Somershoe and by failing to include 15 limitations from all of Plaintiff’s health conditions in his RFC determination. Therefore, 16 the Court remands this case for the Social Security Administration to address these errors. 17 IT IS ORDERED reversing the decision of the Commissioner of Social Security 18 and remanding the case for further proceedings in accordance with this Order. 19 IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly. 20 21 Dated this 14th day of September, 2017. 22 23 24 25 26 27 28-22-

CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed September 15, 2017, the decision of the Commissioner of Social Security is reversed, and this case is remanded to the Social Security Administration for further proceedings consistent with the Order.

Case 2:16-cv-02840-SRB Document 20 Filed 09/15/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Angela C Eveland, NO. CV-16-02840-PHX-SRB 10 Plaintiff, JUDGMENT IN A CIVIL CASE 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Decision by Court. This action came for consideration before the Court. The 16 issues have been considered and a decision has been rendered. 17 IT IS ORDERED AND ADJUDGED that pursuant to the Court’s Order filed 18 September 15, 2017, the decision of the Commissioner of Social Security is reversed, and 19 this case is remanded to the Social Security Administration for further proceedings 20 consistent with the Order. 21 Brian D. Karth District Court Executive/Clerk of Court 22 23 September 15, 2017 s/Katrina Smith 24 By Deputy Clerk 25 26 27 28

NOTICE OF ATTORNEY APPEARANCE: Alexis L. Toma appearing for Commissioner of Social Security Administration. Attorney Lars J Nelson terminated.

1 Elizabeth A. Strange First Assistant United States Attorney 2 District of Arizona 3 Alexis L. Toma 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA42955 8 Fax: (206) 615-2531 alexis.toma@ssa.gov 9 Telephone: (206) 615-2950 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Angela C Eveland, No. CV-16-02840-PHX-SRB 14 15 Plaintiff, 16 DEFENDANT'S NOTICE OF vs. SUBSTITUTION 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 PLEASE TAKE NOTICE that the Defendant in the above-entitled action, 22 23 without waiving any objection to, inter alia, service, venue, or jurisdiction, hereby 24 gives Notice that Lars J Nelson is withdrawn as counsel to the Commissioner of 25 Social Security. All future mailings regarding this case should be sent to: 26 27 28 1 Alexis L. Toma Special Assistant United States Attorney 2 Office of the General Counsel 3 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 4 Seattle, WA 98104-7075 5 State Bar No. WA42955 Fax: (206) 615-2531 6 alexis.toma@ssa.gov Telephone: (206) 615-2950 7 8 You are advised that service of all further pleadings, notices, documents or other 9 papers herein, not filed electronically, may be made upon Defendant by serving the 10 above-named attorneys at their respective addresses. 11 12 DATED this 8th day of December 2017. 13 Respectfully submitted, 14 15 ELIZABETH A. STRANGE Acting United States Attorney 16 District of Arizona 17 s/ Alexis L. Toma 18 ALEXIS L. TOMA 19 Special Assistant United States Attorney 20 Of Counsel for the Defendant: 21 MATHEW W. PILE 22 Acting Regional Chief Counsel, Social Security Administration Office of the General Counsel, Region X 23 701 Fifth Avenue, Suite 2900 M/S 221A 24 Seattle, WA 98104-7075 25 26 27 28 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Notice of Substitution was filed with the Clerk 3 of the Court on December 8, 2017, using the CM/ECF system which will send 4 5 notification of such filing to the following: Howard D Olinsky. 6 s/ Megan Moore 7 MEGAN MOORE 8 Paralegal Specialist Office of the General Counsel 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, UNOPPOSED by Angela C Eveland.

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Angela C. Eveland 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Angela C. Eveland, 13 14 Plaintiff, Civil No. 2-16-cv-02840-PHX-SRB 15 16 vs. MOTION FOR ATTORNEY'S 17 FEES PURSUANT TO THE 18 Commissioner of Social Security EQUAL ACCESS TO JUSTICE 19 Administration, ACT, 28 U.S.C.A. § 2412 (WEST) UNOPPOSED 20 Defendant 21 22 PLAINTIFF'S MOTION FOR ATTORNEY'S FEES PURSUANT TO THE 23 EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C.A. § 2412 (WEST) 24 25 COUNSEL: 26 PLEASE TAKE NOTICE that upon the annexed affirmation of Howard 27 D. Olinsky, attorney for the plaintiff, and other papers, the plaintiff will make a 28 Page 1 1 motion before Hon. Susan R. Bolton, at Sandra Day O'Connor U.S. Courthouse, 2 Suite 522, 401 West Washington Street, SPC 50, Phoenix, AZ 85003 on a date to 3 4 be set by the court, for an order: 5 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,773.81, and 6 7 2. Awarding Expenses in the amount of $18.66; and 8 3. If the Plaintiff has no debt registered with the Department of Treasury 9 subject to offset that the fees be made payable to the attorney. 10 11 Plaintiff, by her attorney, Howard D. Olinsky moves the court for an award to be 12 13 paid by the Defendant under the Equal Access to Justice Act, 28 U.S.C.A. § 2412. 14 15 Plaintiff may receive an award under the Equal Access to Justice Act because she 16 17 is the prevailing party, is an individual whose net worth did not exceed two 18 million dollars when the action was filed, and the position of the United States in 19 this litigation and/or at the agency was not substantially justified. Although the 20 21 burden of proof on substantial justification is on the government, Plaintiff's 22 supporting memorandum briefly addresses this issue. 23 24 25 There are no special circumstances in this case which make an award under the 26 EAJA unjust. 27 28 Page 2 1 This motion is supported by an affirmation of Plaintiff's attorney, attached time 2 and cost records and an Affidavit and Waiver of Direct Payment by the plaintiff. 3 4 5 Executed this December 8, 2017 6 Respectfully submitted, 7 8 /s/ Howard D. Olinsky Howard D. Olinsky, Esq. 9 Admitted Pro Hac Vice 10 Attorney for Plaintiff Email: fedct@windisability.com 11 12 To: Elizabeth Strange, Esq. Acting United States Attorney 13 Alexis L. Toma, Esq. 14 Assistant Regional Counsel 15 Office of the General Counsel, Region X Social Security Administration 16 701 Fifth Avenue, Suite 2900 M/S 221A 17 Seattle, WA 98104-7075 State Bar No. MN0389274 18 Telephone: (206) 615-7075 19 Facsimile: (206) 615-2531 Email: Alexis.Toma@ssa.gov 20 21 Attorneys for Defendant 22 23 24 25 26 27 28 Page 3

Attorney Affirmation

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Angela C. Eveland, 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Angela C. Eveland, 13 14 Plaintiff, Civil No. 2-16-cv-02840-PHX-SRB 15 16 vs. Attorney's affirmation in support of 17 Fees Pursuant to the Equal Access to 18 Commissioner of Social Security Justice Act, 28 U.S.C. § 2412 19 Administration, 20 Defendant 21 22 Attorney's Affirmation in Support of Fees Pursuant to the Equal Access to 23 Justice Act, 28 U.S.C. § 2412 ________________________________________ 24 25 Howard D. Olinsky, being duly sworn deposes and states: 26 27 1. I am an attorney licensed to practice law in the State of New York, 28 admitted to practice pro hac vice before this Court. Page 4 1 2. I make this affirmation knowing that the Court will rely upon it in 2 assessing any awards under the Equal Access to Justice Act. 28 U.S.C.A. § 2412. 3 4 3. There are no special circumstances in this case which make an award 5 under the EAJA unjust. 6 4. The Court ordered on September 15, 2017 that the above-entitled 7 8 case be remanded for further administrative proceedings, under the fourth sentence 9 of 42 U.S.C.A. § 405(g) (West). 10 5. For the Equal Access to Justice Act, I am requesting an hourly rate 11 of $192.68 for attorney time through 2017. See generally, 12 13 http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 U.S.C.A 9th 14 Circuit EAJA Table. If attorney fees are calculated at this rate for 30.9 hours of 15 work performed in 2016 and 2017 they total $5,953.81. 16 17 6. I am also requesting $100.00 per hour for 8.2 hours of paralegal time 18 equaling $820.00. I am requesting $6,773.81 for Counsel Fees which include 19 attorney and paralegal time. 20 21 7. The time accounting is presented to the court in two fashions. 22 Exhibit A is the time spent by all who worked on this case in chronological 23 sequence. Exhibit B is broken down by attorneys. The attorneys involved in this 24 25 case are Howard D. Olinsky, Esq., Paul B. Eaglin Esq., and Michelle Fecio, Esq. 26 Exhibit C is broken down by paralegals. The paralegals involved in this case are 27 28 Page 5 1 Shannon Persse, Michelle Callahan, Jonnah Graser, Kyrsten Gifford, Lorie 2 Ruggiero, Vincent Wisehoon, and Tamica Lockwood. 3 4 8. I am requesting reimbursement of expenses of $18.66 for Certified 5 Mail for the summons and complaint to the defendant's office's as shown on 6 Exhibit D. The Supreme Court has clarified that only the items specifically listed 7 8 in 28 U.S.C. §1920 are compensable as costs. See Crawford Fitting Co. v. J. T. 9 Gibbons, Inc., 482 U.S. 437, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987). 28 10 U.S.C.A. § 1920 (West) provides: 11 A judge or clerk of any court of the United States may tax as costs the 12 13 following: 14 a.) fees of the clerk and marshal; 15 b.) fees of the court reporter for all or any part of the stenographic transcript 16 17 necessarily obtained for use in the case; 18 c.) fees and disbursements for printing and witnesses; 19 d.) fees for exemplification and copies of papers necessarily obtained for 20 21 use in the case; 22 e.) docket fees under section 1923 of this title; 23 f.) compensation of court appointed experts, compensation of interpreters, 24 25 and salaries, fees, expenses, and costs of special interpretation services under 26 section 1828 of this title. 27 28 Page 6 1 The postage fee to serve process by certified mail is reimbursable as an 2 "expense." 3 4 9. The attached records were contemporaneously created and stored in 5 the firm's Prevail Database, and are printed out and attached. The itemized time 6 represents hours spent preparing and handling this case for U.S. District Court. 7 8 Clerical time is not included in this petition or has been zeroed out. 9 Waiver of Direct Payment of EAJA Fees 10 10. Attached is an Affidavit and Waiver of Direct Payment duly 11 executed by the plaintiff (Exhibit E). With this Waiver, if Plaintiff owes a debt 12 13 that qualifies under the Treasury Offset Program (31 U.S.C.A. § 3716 (West)), any 14 payment shall be made payable to the Plaintiff and delivered to the Plaintiff's 15 attorney. If the United States Department of Treasury determines that Plaintiff 16 17 owes no debt subject to offset, the government may accept the assignment of 18 EAJA fees and pay such fees directly to the Plaintiff's attorney. Astrue v. Ratliff, 19 560 U.S. 586, 130 S. Ct. 2521, 177 L. Ed. 2d 91 (2010). 20 21 22 WHEREFORE, because all four elements of an allowable application for 23 EAJA fees have been proven, petitioner requests that the Court issue an order: 24 25 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,773.81; 26 and 27 2. Awarding Expenses in the amount of $18.66; and 28 Page 7 1 3. If the Plaintiff has no debt registered with the Department of Treasury 2 subject to offset that the fees be made payable to the attorney. 3 4 5 Executed this December 8, 2017 6 Respectfully submitted, 7 /s/ Howard D. Olinsky 8 Howard D. Olinsky, Esq. 9 Admitted Pro Hac Vice Attorney for Plaintiff 10 Email: fedct@windisability.com 11 To: Elizabeth Strange, Esq. 12 Acting United States Attorney 13 Alexis L. Toma, Esq. 14 Assistant Regional Counsel 15 Office of the General Counsel, Region X Social Security Administration 16 701 Fifth Avenue, Suite 2900 M/S 221A 17 Seattle, WA 98104-7075 State Bar No. MN0389274 18 Telephone: (206) 615-7075 19 Facsimile: (206) 615-2531 Email: Alexis.Toma@ssa.gov 20 Attorneys for Defendant 21 22 23 24 25 26 27 28 Page 8

Exhibit A All Professional Time

Exhibit A Ledger Eveland, Angela C Date  Subject Hours Timekeeper 7/6/2016 Files received, reviewed and processed from referral source for Attorney review 0.6 Callahan, Michelle 7/6/2016 Correspondence to Client re: Prospect acknowledgment letter mailed 0.2 Callahan, Michelle 7/7/2016 Telephone call with Client re: Debt conference call, explained process 0.4 Ruggiero, Lorie 7/21/2016 Review decisions and evidence to determine whether to appeal case 1 Fecio, Michelle 8/12/2016 FDC prospect packet prepared for Client completion 0.6 Gifford, Kyrsten 8/12/2016 Telephone call with Client re: Assistance with in forma pauperis application 0.3 Gifford, Kyrsten 8/15/2016 Telephone call with Client re: Follow up on federal court forms packet 0.1 Gifford, Kyrsten 8/16/2016 FDC prospect packet sent to Client via Right Signature 0.2 Gifford, Kyrsten 8/17/2016 FDC Prospect packet returned via Right Signature, reviewed for completion 0.3 Gifford, Kyrsten 8/24/2016 Review Motion to Proceed In Forma Pauperis, approve for filing 0.2 Olinsky, Howard D. 8/24/2016 Draft Complaint, Proposed Summons, Letter to Clerk, and Civil Cover Sheet 0.6 Olinsky, Howard D. 8/25/2016 Federal Court -Accept Letter - New FDC Filing 0.3 Callahan, Michelle 8/25/2016 Draft application for Pro Hac Vice admission 0 Olinsky, Howard D. 8/25/2016 Review case assigned Hon. Susan R. Bolten, research individual rules & practices 0.3 Olinsky, Howard D. 8/25/2016 Review summons issued 0.2 Olinsky, Howard D. 8/26/2016 Review scheduling order, calender deadlines on task pad 0.3 Olinsky, Howard D. 8/30/2016 Review order granting in forma pauperis application, directing service 0.1 Olinsky, Howard D. 8/30/2016 Review order granting motion for pro hac vice 0 Olinsky, Howard D. 9/6/2016 Telephone call with Client re: Status update 0.1 Gifford, Kyrsten 9/7/2016 Federal Court-Service of Process-prepare service packets USAO, OGC, AG 0.6 Callahan, Michelle 9/20/2016 Compile and file proof of service via CM / ECF 0.3 Callahan, Michelle 9/21/2016 Review service executed, confirm scheduling order calendared 0.2 Eaglin, Paul B. 10/18/2016 Review notice of appearance Lars Nelson o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 11/15/2016 Review motion for extension of time to file answer 0.1 Eaglin, Paul B. 11/15/2016 Review declaration of Lars Nelson re: motion for extension to answer 0.1 Eaglin, Paul B. 11/16/2016 Review order granting extension to answer, update task pad 0.1 Eaglin, Paul B. 11/17/2016 Review answer to complaint 0.1 Eaglin, Paul B. 11/17/2016 Review notice of filing administrative transcript 0.1 Eaglin, Paul B. 11/18/2016 Review paper copy of admin record stored in Phoenix file room 0.1 Eaglin, Paul B. 11/22/2016 Combine, strip PDF/A, OCR and live bookmark federal court transcript (1637 pgs) 1 Lockwood, Tamica 11/23/2016 Preliminary review of transcript - assign Attorney writer 0.5 Eaglin, Paul B. 1/11/2017 Review certified administrative record and take notes (1637 pages) 8.3 Fecio, Michelle 1/12/2017 Continue reviewing administrative transcript, taking notes, organizing facts 3.5 Fecio, Michelle 1/16/2017 Continue drafting procedural section, drafting facts 4.5 Fecio, Michelle 1/17/2017 Researching issues and drafting arguments 6 Fecio, Michelle 1/17/2017 Senior Attorney review draft brief, suggest edits 1.2 Eaglin, Paul B. 1/17/2017 Implement suggested edits, finalize and file brief (n/c for filing) 0.9 Fecio, Michelle 39.10 (Type = Time) and (Client = Ms. Angela C. Eveland)    Date  Subject Hours Timekeeper 2/7/2017 Review and execute Magistrate consent form 0.1 Olinsky, Howard D. 2/17/2017 Review response brief by Commissioner of SSA (21 pages) 0.5 Eaglin, Paul B. 2/17/2017 Assign Attorney writer to access / write reply brief 0.2 Eaglin, Paul B. 2/23/2017 Correspondence to Client re: Federal Court- Fully Briefed Case Docs to Client 0.3 Vincent Wisehoon 2/28/2017 Review briefs to access reply- NO REPLY WARRANTED 0.7 Fecio, Michelle 9/15/2017 Review order reversed and remanded for further proceedings (22 pgs) 0.3 Olinsky, Howard D. 9/15/2017 Review Clerk's judgment 0.1 Olinsky, Howard D. 9/20/2017 Federal Court-Remand Referral back to Referral Source 0.3 Graser, Jonnah 9/20/2017 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 11/28/2017 Review minute entry re: CAR being returned to Defendant 0 Olinsky, Howard D. 12/6/2017 EAJA Preparation 1.5 Persse, Shannon 12/6/2017 Review Slips and Finalize EAJA Motion 0.5 Olinsky, Howard D. 12/7/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 39.1 39.10 (Type = Time) and (Client = Ms. Angela C. Eveland)   

Exhibit B Attorney Time

Exhibit B Ledger Eveland, Angela C Date  Subject Hours Timekeeper 7/21/2016 Review decisions and evidence to determine whether to appeal case 1 Fecio, Michelle 8/24/2016 Review Motion to Proceed In Forma Pauperis, approve for filing 0.2 Olinsky, Howard D. 8/24/2016 Draft Complaint, Proposed Summons, Letter to Clerk, and Civil Cover Sheet 0.6 Olinsky, Howard D. 8/25/2016 Draft application for Pro Hac Vice admission 0 Olinsky, Howard D. 8/25/2016 Review case assigned Hon. Susan R. Bolten, research individual rules & practices 0.3 Olinsky, Howard D. 8/25/2016 Review summons issued 0.2 Olinsky, Howard D. 8/26/2016 Review scheduling order, calender deadlines on task pad 0.3 Olinsky, Howard D. 8/30/2016 Review order granting in forma pauperis application, directing service 0.1 Olinsky, Howard D. 8/30/2016 Review order granting motion for pro hac vice 0 Olinsky, Howard D. 9/21/2016 Review service executed, confirm scheduling order calendared 0.2 Eaglin, Paul B. 10/18/2016 Review notice of appearance Lars Nelson o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 11/15/2016 Review motion for extension of time to file answer 0.1 Eaglin, Paul B. 11/15/2016 Review declaration of Lars Nelson re: motion for extension to answer 0.1 Eaglin, Paul B. 11/16/2016 Review order granting extension to answer, update task pad 0.1 Eaglin, Paul B. 11/17/2016 Review answer to complaint 0.1 Eaglin, Paul B. 11/17/2016 Review notice of filing administrative transcript 0.1 Eaglin, Paul B. 11/18/2016 Review paper copy of admin record stored in Phoenix file room 0.1 Eaglin, Paul B. 11/23/2016 Preliminary review of transcript - assign Attorney writer 0.5 Eaglin, Paul B. 1/11/2017 Review certified administrative record and take notes (1637 pages) 8.3 Fecio, Michelle 1/12/2017 Continue reviewing administrative transcript, taking notes, organizing facts 3.5 Fecio, Michelle 1/16/2017 Continue drafting procedural section, drafting facts 4.5 Fecio, Michelle 1/17/2017 Researching issues and drafting arguments 6 Fecio, Michelle 1/17/2017 Senior Attorney review draft brief, suggest edits 1.2 Eaglin, Paul B. 1/17/2017 Implement suggested edits, finalize and file brief (n/c for filing) 0.9 Fecio, Michelle 2/7/2017 Review and execute Magistrate consent form 0.1 Olinsky, Howard D. 2/17/2017 Review response brief by Commissioner of SSA (21 pages) 0.5 Eaglin, Paul B. 2/17/2017 Assign Attorney writer to access / write reply brief 0.2 Eaglin, Paul B. 2/28/2017 Review briefs to access reply- NO REPLY WARRANTED 0.7 Fecio, Michelle 9/15/2017 Review order reversed and remanded for further proceedings (22 pgs) 0.3 Olinsky, Howard D. 9/15/2017 Review Clerk's judgment 0.1 Olinsky, Howard D. 11/28/2017 Review minute entry re: CAR being returned to Defendant 0 Olinsky, Howard D. 12/6/2017 Review Slips and Finalize EAJA Motion 0.5 Olinsky, Howard D. 30.9 30.90 (Type = Time) and (Client = Ms. Angela C. Eveland) and ((Timekeeper = Eaglin, Paul B.) or (Timekeeper = Fecio, Michelle) or (Timekee...   

Exhibit C Paralegal Time

Exhibit C Ledger Eveland, Angela C Date  Subject Hours Timekeeper 7/6/2016 Files received, reviewed and processed from referral source for Attorney review 0.6 Callahan, Michelle 7/6/2016 Correspondence to Client re: Prospect acknowledgment letter mailed 0.2 Callahan, Michelle 7/7/2016 Telephone call with Client re: Debt conference call, explained process 0.4 Ruggiero, Lorie 8/12/2016 FDC prospect packet prepared for Client completion 0.6 Gifford, Kyrsten 8/12/2016 Telephone call with Client re: Assistance with in forma pauperis application 0.3 Gifford, Kyrsten 8/15/2016 Telephone call with Client re: Follow up on federal court forms packet 0.1 Gifford, Kyrsten 8/16/2016 FDC prospect packet sent to Client via Right Signature 0.2 Gifford, Kyrsten 8/17/2016 FDC Prospect packet returned via Right Signature, reviewed for completion 0.3 Gifford, Kyrsten 8/25/2016 Federal Court -Accept Letter - New FDC Filing 0.3 Callahan, Michelle 9/6/2016 Telephone call with Client re: Status update 0.1 Gifford, Kyrsten 9/7/2016 Federal Court-Service of Process-prepare service packets USAO, OGC, AG 0.6 Callahan, Michelle 9/20/2016 Compile and file proof of service via CM / ECF 0.3 Callahan, Michelle 11/22/2016 Combine, strip PDF/A, OCR and live bookmark federal court transcript (1637 pgs) 1 Lockwood, Tamica 2/23/2017 Correspondence to Client re: Federal Court- Fully Briefed Case Docs to Client 0.3 Vincent Wisehoon 9/20/2017 Federal Court-Remand Referral back to Referral Source 0.3 Graser, Jonnah 9/20/2017 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 12/6/2017 EAJA Preparation 1.5 Persse, Shannon 12/7/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 8.2 8.20 (Type = Time) and (Client = Ms. Angela C. Eveland) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Gifford, Kyrsten) or (Ti...   

Exhibit D Expenses

Exhibit D Ledger Eveland, Angela C Date - 9 / 7 / 2016 Subject Certified mail expense Summons and Complaint packets to Defendants Amount Timekeeper $ 18. 66 Callahan, Michelle $ 18. 66

Exhibit E Affirmation and Waiver of Direct Payment of EAJA Fees

Exhibit E UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA (PHOENIX DIVISION) -------------------------------------------------------------- MS. ANGELA C. EVELAND, AFFIRMATION AND WAIVER OF DIRECT PAYMENT Plaintiff, OF EAJA FEES v. Civil Action No.: _________________ CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------------------------- Ms. Angela C. Eveland, 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 August 12, 2016. __________________________ Ms. Angela C. Eveland Plaintiff

Memorandum in Support

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Angela C. Eveland, 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Angela C. Eveland, 13 14 Plaintiff, Civil No. 2-16-cv-02840-PHX-SRB 15 16 vs. MEMORANDUM IN SUPPORT OF 17 PLAINTIFF'S PETITION FOR 18 Commissioner of Social Security COUNSEL FEES ALLOWANCE Administration, UNDER EQUAL ACCESS TO 19 JUSTICE ACT, 28 U.S.C. § 2412 20 Defendant 21 22 Memorandum in Support of Plaintiff's Petition for Counsel Fees 23 Allowance Under Equal Access to Justice Act 24 1. This is a memorandum in support of a petition for an award of 25 Counsel Fees under the Equal Access to Justice Act 28 U.S.C.A. § 2412 "EAJA." 26 27 28 Page 9 1 2. An EAJA award is available to a "prevailing party" in a case against 2 the Federal Government, including Social Security cases, in the following 3 4 instances: 5 (a) When and if the plaintiff actually "prevails"; 6 (b) The Government's position in litigation is "not substantially 7 8 justified"; 9 (c) Plaintiff is a party whose net assets are worth less than two 10 million dollars; and 11 (d) The case has concluded with a "final order" which is non- 12 13 appealable, or will not be appealed. 14 3. Addressing these elements in reverse order, it is clear that the 15 Plaintiff has met the burden necessary to receive EAJA fees. 16 17 (a) Plaintiff's net worth did not exceed $2,000,000.00 when this 18 action was filed. 19 (b) After service of the summons and complaint, and filing of 20 21 Briefs by both parties, the Court issued a Decision and Order remanding to the 22 Commissioner for further administrative proceedings under sentence four 42 23 U.S.C.A. § 405(g). 24 25 (c) Judgment was entered on September 15, 2017. The Judgment 26 has not been appealed. 27 (d) Plaintiff has prevailed because the District Court remanded 28 Page 10 1 the case under sentence four of 42 U.S.C.A. § 405(g). Shalala v. Schaefer, 509 2 U.S. 292, 113 S. Ct. 2625, 125 L. Ed. 2d 239 (1993). 3 4 4. The commissioner was not substantially justified. As the U. S. 5 Supreme Court has held, "the required 'not substantially justified' allegation imposes no 6 proof burden on the fee applicant. It is, as its text conveys, nothing more than an 7 8 allegation or pleading requirement. The burden of establishing 'that the position of the 9 United States was substantially justified' … must be shouldered by the Government." 10 Scarborough v. Principi, 541 U.S. 401, 124 S. Ct. 1856, 158 L. Ed. 2d 674 (2004) 11 While the fee applicant such as Plaintiff is required to "show" three of the 12 13 four elements—prevailing party status, financial eligibility, and amount sought— 14 Plaintiff need only "to allege" that the position of the government is not 15 substantially justified. Id. 16 17 WHEREFORE, because all four elements of an allowable application for 18 EAJA fees have been proven, petitioner requests that the Court issue an order: 19 20 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,773.81; 21 and 22 2. Awarding Expenses in the amount of $18.66; and 23 3. If the Plaintiff has no debt registered with the Department of Treasury 24 25 subject to offset that the fees be made payable to the attorney. 26 27 28 Page 11 1 Executed this December 8, 2017 2 3 Respectfully submitted, 4 /s/ Howard D. Olinsky 5 Howard D. Olinsky, Esq. 6 Admitted Pro Hac Vice Attorney for Plaintiff 7 Email: fedct@windisability.com 8 To: Elizabeth Strange, Esq. 9 Acting United States Attorney 10 Alexis L. Toma, Esq. 11 Assistant Regional Counsel Office of the General Counsel, Region X 12 Social Security Administration 13 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 14 State Bar No. MN0389274 15 Telephone: (206) 615-7075 Facsimile: (206) 615-2531 16 Email: Alexis.Toma@ssa.gov 17 Attorneys for Defendant 18 19 20 21 22 23 24 25 26 27 28 Page 12

Certificate of Service

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Angela C. Eveland, 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Angela C. Eveland, 13 14 Plaintiff, Civil No. 2-16-cv-02840-PHX-SRB 15 vs. CERTIFICATE OF SERVICE 16 17 18 Commissioner of Social Security 19 Administration, 20 Defendant 21 22 Certificate of Service 23 I certify that I have electronically moved for EAJA fees with the Clerk of 24 25 the District Court using the CM/ECF system, which sent notification of such filing 26 to: 27 28 Page 15 1 To: Elizabeth Strange, Esq. 2 Acting United States Attorney 3 Alexis L. Toma, Esq. Assistant Regional Counsel 4 Office of the General Counsel, Region X 5 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 6 Seattle, WA 98104-7075 7 State Bar No. MN0389274 Telephone: (206) 615-7075 8 Facsimile: (206) 615-2531 9 Email: Alexis.Toma@ssa.gov 10 Attorneys for Defendant 11 12 December 8, 2017 13 /s/ Howard D. Olinsky 14 Howard D. Olinsky, Esq. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 16

Certificate of Local Rule 54.2 (D)(1)

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Angela C. Eveland, 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Angela C. Eveland, 13 14 Plaintiff, Civil No. 2-16-cv-02840-PHX-SRB 15 16 vs. CERTIFICATE OF LOCAL RULE 17 54.2 (D) (1) 18 Commissioner of Social Security 19 Administration, 20 Defendant 21 22 Certificate of Local Rule 54.2 (D) (1) 23 I certify that I have conferred with Counsel for Defendant via emails on 24 25 December 7, 2017 and December 8, 2017 regarding Plaintiff's Motion for 26 Attorney's Fees Pursuant to the Equal Access to Justice Act. Opposing counsel 27 has no opposition to Plaintiff's request. 28 Page 13 1 2 To: Elizabeth Strange, Esq. Acting United States Attorney 3 Alexis L. Toma, Esq. 4 Assistant Regional Counsel 5 Office of the General Counsel, Region X Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. MN0389274 8 Telephone: (206) 615-7075 9 Facsimile: (206) 615-2531 Email: Alexis.Toma@ssa.gov 10 11 Attorneys for Defendant 12 13 December 8, 2017 14 /s/ Howard D. Olinsky 15 Howard D. Olinsky, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 14

Text of Proposed Order

1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 10 11 12 Angela C. Eveland, Civil No. 2-16-cv-02840-PHX-SRB 13 Plaintiff, 14 15 vs. (PROPOSED) ORDER AWARDING ATTORNEY'S FEES 16 PURSUANT TO THE EQUAL 17 Commissioner of Social Security ACCESS TO JUSTICE ACT, 18 Administration, 28 U.S.C. § 2412(D) 19 Defendant 20 21 (Proposed) Order Awarding Attorney's Fees 22 pursuant to the Equal Access to Justice Act, 23 28 U.S.C. § 2412(d) 24 25 Before the Court is the Motion of Plaintiff Angela C. Eveland, for award of 26 attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). 27 Based on the pleadings as well as the position of the defendant commissioner, if 28 Page 1 1 any, and recognizing the Plaintiff's waiver of direct payment and assignment of 2 EAJA to her counsel, 3 4 5 IT IS HEREBY ORDERED that attorney fees in the total amount of Six 6 Thousand Seven Hundred Seventy-Eight Dollars and Eighty-One Cents 7 8 ($6,773.81) pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) are 9 awarded to Plaintiff. Astrue v. Ratliff, 130 S.Ct. 2521 (2010). 10 11 IT IS FURTHER ORDERD that Plaintiff is awarded Eighteen Dollars and 12 13 Sixty-Six Cents ($18.66) in expenses for Certified Mail for service of Summons 14 and Complaint. 15 16 17 If the U.S. Department of the Treasury determines that Plaintiff's EAJA 18 fees are not subject to offset allowed under the Department of the Treasury's 19 Offset Program (TOPS), then the check for EAJA fees may be made payable to 20 21 Plaintiff's attorney, Howard D. Olinsky. 22 23 Whether the check is made payable to Plaintiff or to Howard D. Olinsky, 24 25 26 27 28 Page 2 1 the check may be mailed to Howard D. Olinsky at the following address: 2 300 South State Street 3 Suite 420 4 Syracuse, NY 13202 5 6 DATED: 7 8 9 ____________________________ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 3

RESPONSE to Motion re: [23] MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, UNOPPOSED filed by Commissioner of Social Security Administration.

1 Elizabeth A. Strange First Assistant United States Attorney 2 District of Arizona 3 Alexis L. Toma 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA 42955 8 Fax: (206) 615-2531 alexis.toma@ssa.gov 9 Telephone: (206) 615-2950 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Angela C. Eveland, 14 No. CV-16-2840-PHX-SRB 15 Plaintiff, 16 DEFENDANT'S RESPONSE TO vs. PLAINTIFF'S MOTION FOR 17 ATTORNEY FEES Commissioner of Social Security 18 Administration, 19 Defendant. 20 21 Defendant 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 23 Motion (ECF No. 23). Defendant has given substantive consideration to the merits of 24 25 Plaintiff's request and does not oppose the motion, as indicated in Plaintiff's filing. 26 Therefore, Defendant will defer to the Court's assessment of the matter. 27 /// 28 1 DATED this 18th day of December 2017. 2 Respectfully submitted, 3 ELIZABETH A. STRANGE 4 First Assistant United States Attorney 5 District of Arizona 6 s/ Alexis L. Toma ALEXIS L. TOMA 7 Special Assistant United States Attorney 8 Of Counsel for the Defendant: 9 10 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 11 Office of the General Counsel, Region X 12 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 13 14 15 16 CERTIFICATE OF SERVICE 17 I hereby certify that the foregoing Defendant's Response to Plaintiff's Motion for 18 Attorney Fees was filed with the Clerk of the Court on December 18, 2017, using the 19 CM/ECF system which will send notification of such filing to the following: Howard D. 20 21 Olinsky. 22 23 s/ Alexis L. Toma ALEXIS L. TOMA 24 Special Assistant U.S. Attorney 25 Office of the General Counsel 26 27 28 2

ORDER granting [23] Motion for Attorney Fees. IT IS HEREBY ORDERED that attorney fees in the total amount of Six Thousand Seven Hundred Seventy-Three Dollars and Eighty-One Cents ($6,773.81) pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) are awarded to Plaintiff. Astrue v. Ratliff, 130 S.Ct. 2521 (2010). IT IS FURTHER ORDERD that Plaintiff is awarded Eighteen Dollars and Sixty-Six Cents ($18.66) in expenses for Certified Mail for service of Summons and Complaint [see attached Order for details]. Signed by Judge Susan R Bolton on 12/19/17.

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 7 8 Angela C. Eveland, 9 Civil No. CV 16-02840-PHX-SRB 10 Plaintiff, 11 vs. ORDER AWARDING 12 ATTORNEY'S FEES 13 PURSUANT TO THE EQUAL 14 Commissioner of Social Security ACCESS TO JUSTICE ACT, Administration, 28 U.S.C. § 2412(D) 15 16 Defendant. 17 18 Before the Court is the Motion of Plaintiff Angela C. Eveland for award of 19 attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) 20 21 (Doc. 23). Defendant has responded that there is no opposition to the motion. 22 Defendant did not object to Plaintiff's waiver of direct payment and assignment to 23 her counsel. 24 25 IT IS HEREBY ORDERED that attorney fees in the total amount of Six 26 Thousand Seven Hundred Seventy-Three Dollars and Eighty-One Cents 27 28 Page 1 1 ($6,773.81) pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) are 2 awarded to Plaintiff. Astrue v. Ratliff, 130 S.Ct. 2521 (2010). 3 4 IT IS FURTHER ORDERD that Plaintiff is awarded Eighteen Dollars and 5 Sixty-Six Cents ($18.66) in expenses for Certified Mail for service of Summons 6 and Complaint. 7 8 If the U.S. Department of the Treasury determines that Plaintiff's EAJA 9 fees are not subject to offset allowed under the Department of the Treasury's 10 Offset Program (TOPS), then the check for EAJA fees may be made payable to 11 Plaintiff's attorney, Howard D. Olinsky. 12 13 Whether the check is made payable to Plaintiff or to Howard D. Olinsky, 14 the check may be mailed to Howard D. Olinsky at the following address: 15 300 South State Street 16 Suite 420 17 Syracuse, NY 13202 18 19 Dated this 19th day of December, 2017. 20 21 22 23 24 25 26 27 28 Page 2

Interested in this case?

Sign up to receive real-time updates
Last full docket sheet refresh: 291 days ago. Refresh now
#
Datesort arrow up
Description
1
08/24/2016
COMPLAINT filed by Angela C Eveland.(submitted by Howard Olinsky)
1
Civil Cover Sheet
2
Exhibit)(EJA
2 Attachments
2
08/24/2016
APPLICATION for Leave to Proceed In Forma Pauperis by Angela C Eveland.(submitted by Howard Olinsky)
3
08/24/2016
SUMMONS Submitted by Angela C Eveland.(submitted by Howard Olinsky)
1
Summons
2
Summons)(EJA
2 Attachments
4
08/24/2016
This case has been assigned to the Honorable Susan R Bolton. All future pleadings or documents should bear the correct case number: CV-16-02840-PHX-SRB. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached.
5
08/24/2016
Summons Issued as to Carolyn W Colvin. *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document.
1
Summons
2
Summons)(EJA
2 Attachments
6
08/25/2016
MOTION for Admission Pro Hac Vice as to attorney Howard D. Olinsky by Angela C Eveland.
1
Letter to Clerk
1 Attachment
7
08/25/2016
SCHEDULING ORDER: Within sixty (60) days after the answer is filed, Plaintiff must file an opening brief [see attached Order for details]. Signed by Judge Susan R Bolton on 8/25/16.
8
08/26/2016
ORDER granting 2 Motion for Leave to Proceed In Forma Pauperis without prepayment of costs or fees or the necessity of giving security therefore. Plaintiff shall be responsible for service of the summons and complaint. Signed by Judge Susan R Bolton on 8/26/16.
08/30/2016
PRO HAC VICE FEE PAID. $ 35, receipt number PHX175743 as to Howard D Olinsky. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
9
08/30/2016
ORDER pursuant to General Order 09-08 granting 6 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
10
09/20/2016
*SERVICE EXECUTED filed by Angela C Eveland: Return of Service re: Summons, Complaint and Scheduling Order upon US Attorney's Office on 9/10/16, Office of General Counsel on 9/12/16, Attorney General on 9/12/16. *Modified to correct text on 9/22/2016*
11
10/18/2016
NOTICE OF ATTORNEY APPEARANCE: Lars Nelson appearing for Carolyn W Colvin.
12
11/14/2016
MOTION for Extension of Time to File Answer re: 1 Complaint UNOPPOSED by Carolyn W Colvin.
1
Text of Proposed Order
1 Attachment
13
11/14/2016
DECLARATION of Lars Nelson re: 12 MOTION for Extension of Time to File Answer re: 1 Complaint UNOPPOSED. filed by Carolyn W Colvin.
14
11/15/2016
ORDER granting 12 Motion for Extension of Time. Defendant shall have up to and including December 14, 2016, to file a Response to Plaintiff's Complaint. Signed by Judge Susan R Bolton on 11/15/16.
15
11/17/2016
ANSWER to 1 Complaint by Carolyn W Colvin.
16
11/17/2016
NOTICE of Filing Certified Copy of Administrative Transcript re: 15 Answer to Complaint filed by Carolyn W Colvin.
11/17/2016
Paper copy of Administrative Record has been received and is stored in the Phoenix file room. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
17
01/17/2017
OPENING BRIEF by Angela C Eveland.
1
Certificate of Service
1 Attachment
18
02/16/2017
RESPONSE BRIEF by Commissioner of Social Security Administration.
19
09/15/2017
ORDER - Reversing the decision of the Commissioner of Social Security and remanding the case for further proceedings in accordance with this Order. IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly. Signed by Judge Susan R Bolton on 09/14/2017.
20
09/15/2017
CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed September 15, 2017, the decision of the Commissioner of Social Security is reversed, and this case is remanded to the Social Security Administration for further proceedings consistent with the Order.
21
11/27/2017
MINUTE ORDER: Pursuant to LRCiv 79.1(a) all non-electronically submitted administrative records offered by any party, whether or not received into evidence, in Social Security cases and other cases reviewed under the Administrative Procedure Act will be returned to counsel at the conclusion of the action, including any appeal, unless otherwise ordered by the Court. Accordingly, the Administrative Record submitted on 11/17/16 is being returned to the Defendant. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
22
12/08/2017
NOTICE OF ATTORNEY APPEARANCE: Alexis L. Toma appearing for Commissioner of Social Security Administration. Attorney Lars J Nelson terminated.
23
12/08/2017
MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, UNOPPOSED by Angela C Eveland.
1
Attorney Affirmation
2
Exhibit A All Professional Time
3
Exhibit B Attorney Time
4
Exhibit C Paralegal Time
5
Exhibit D Expenses
6
Exhibit E Affirmation and Waiver of Direct Payment of EAJA Fees
7
Memorandum in Support
8
Certificate of Service
9
Certificate of Local Rule 54.2 (D)(1)
10
Text of Proposed Order
10 Attachments
24
12/18/2017
RESPONSE to Motion re: [23] MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, UNOPPOSED filed by Commissioner of Social Security Administration.
25
12/19/2017
ORDER granting [23] Motion for Attorney Fees. IT IS HEREBY ORDERED that attorney fees in the total amount of Six Thousand Seven Hundred Seventy-Three Dollars and Eighty-One Cents ($6,773.81) pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) are awarded to Plaintiff. Astrue v. Ratliff, 130 S.Ct. 2521 (2010). IT IS FURTHER ORDERD that Plaintiff is awarded Eighteen Dollars and Sixty-Six Cents ($18.66) in expenses for Certified Mail for service of Summons and Complaint [see attached Order for details]. Signed by Judge Susan R Bolton on 12/19/17.
Would you like this case removed from DocketBird? Request removal.