Fair v. Social Security Administration Commissioner
Court Docket Sheet

Western District of Arkansas

5:2017-cv-05251 (arwd)

COMPLAINT against Social Security Administration Commissioner, filed by Melissa Yvette Fair.

Case 5: 17-cv-05251-ELW Document 1 * RESTRICTED * Filed 12/04/17 Page 1 of 2 PageID #: 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS (FAYETTEVILLE DIVISION) US DISTRICT COURT WESTERN DIST ARKANSAS FILED DEC 04 2017 DOUGLAS F. YOUNG, Clerk Deputy Clerk---NI-By MELISSA YVETTE FAIR, Soc. Sec. # XXX-XX-2115, Plaintiff, COMPLAINT cu Civil Action No.-525 ELW NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant.--------------------------------------J-, Plaintiff, Melissa Yvette Fair, by her attorney, Howard D. Olinsky, alleges as follows: 1. The jurisdiction of this Court is invoked pursuant to 42 U. S. C. 88 405 (8) and 1383 (c) (3) to review a decision of the Commissioner of Social Security denying Plaintiffs application for Supplemental Security Income benefits for lack of disability. This action is an appeal from a final administrative decision denying Plaintiffs * * claim. This action is commenced within the appropriate time period set forth in the attached Appeals Council Notice dated October 4, 2017. (Exhibit A). 4. Plaintiff, whose social security number is XXX-XX-2115, resides in Bella Vista, Benton County, Arkansas, which is within this judicial district and division. 5. The Defendant, Nancy A. Berryhill, is the acting Commissioner of Social Security of the United States of America. Plaintiff is disabled. The conclusions and findings of fact of the Defendant are not supported by substantial evidence and are contrary to law and regulation. Case 5: 17-cv-05251-ELW Document 1 * RESTRICTED * Filed 12/04/17 Page 2 of 2 PageID #: 2 WHEREFORE, Plaintiff prays that this Court: Finds that the Plaintiff is entitled to Supplemental Security Income benefits under the provisions of the Social Security Act; or Remand the case for a further hearing; 3. Award attorney's fees under the Equal Access to Justice Act, 28 U. S. C. E 2412, on the grounds that the Commissioner's action in this case was not substantially justified; and 4. Order such other and further relief as the Court deems just and proper. Respectfully submitted, thumb BY: „ Howard D. Olinsky, Esq. NYS Bar #: 2044865 Attorney for Plaintiff OLINSKY LAW GROUP One Park Place 300 S. State Street, Ste. 420 Syracuse, New York 13202 t. 315. 701. 5780 f: 315. 701. 5781 e: holinsky@windisability.com DATED: November 30, 2017

Exhibit A)(rg

Case 5: 17-cv-05251-ELW Document 1-1 * RESTRICTED * Filed 12/04/17 Page 1 of 5 PageID #: 3 EXHIBIT A Case 5: 17-cy-05251-ELW Document 1-1 * RESTRICTED * Filed 12/04/17 Page 2 of 5 PagelD #: 4 100 SOCIAL SECURITY ADMINISTRATION 3 Refer to: TLC 2115 MINIS STRA Office of Disability Adjudication and Review 5107 Leesburg Pike Falls Church, VA 22041-3255 Telephone: (877) 670-2722 Date: October 4, 2017 NOTICE OF APPEALS COUNCIL ACTION Ms. Melissa Yvette Fair TIIBI III II I III II III III I III U III I III I II III I III I III I III I III I III I III I III This is about your request for review of the Administrative Law Judge's decision dated November 29, 2016. You submitted reasons that you disagree with the decision. We considered the reasons and exhibited them on the enclosed Order of the Appeals Council. We found that the reasons do not provide a basis for changing the Administrative Law Judge's decision. We Have Denied Your Request for Review We found no reason under our rules to review the Administrative Law Judge's decisio11. Therefore, we have denied your request for review. This means that the Administrative Law Judge's decision is the final decision of the Commissioner of Social Security in your case. Rules We Applied We applied the laws, regulations and rulings in effect as of the date we took this action. Under our rules, we will review your case for any of the following reasons: nann _ I + 17rran niennan Lamavrin. Inn. nnynt yn wna n The Administrative Law Judge appears to have abused his or her discretion. There is an error of law. The decision is not supported by substantial evidence. There is a broad policy or procedural issue that inay affect the public interest. Suspect Social Security Fraud? Please visit http://oig. ssa.gov/r or call the Inspector General's Fraud Hotline at 1-800-269-0271 (TTY 1-866-501-2101). T.--L---Case 5: 17-cv-05251-ELW Document 1-1 * RESTRICTED * Filed 12/04/17 Page 3 of 5 PageID #: 5 Melissa Yvette Fair Page 2 of 3 We receive additional evidence that you show is new, material, and relates to the period on or before the date of the hearing decision. You must also show there is a reasonable probability that the additional evidence would change the outcome of the decision. You must show good cause for why you missed informing us about or submitting it earlier. marang perwirruntasyanom Arsamamurorummutama If You Disagree with Our Action If you disagree with our action, you may ask for court review of the Administrative Law Judge's decision by filing a civil action. If you do not ask for court review, the Administrative Law Judge's decision will be a final decision that can be changed only under special rules. How to File a Civil Action... ': You may file a civil action (ask for court review) by filing a complaint in the United States District Court for the judicial district in which you live. The complaint should name the Coinmissioner of Social Security as the defendant and should include the Social Security number(s) shown at the top of this letter. You or your representative must deliver copies of your complaint and of the summons issued by the court to the U. S. Attorney for the judicial district where you file your complaint, as provided in rule 4 (1) of the Federal Rules of Civil Procedure. You or your representative must also send copies of the complaint and summons, by certified or registered mail, to the Social Security Administration's Office of the General Counsel that is responsible for the processing and handling of litigation in the particular judicial district in which the complaint is filed. The names, addresses, and jurisdictional responsibilities of these offices are published in the Federal Register (70 FR 73320, December 9, 2005), and are available on-line at the Social Security Administration's Internet site, http://policy. ssa.gov/poms. nsf/links/0203106020. You or your representative must also send copies of the complaint and summons, by certified or registered mail, to the Attorney General of the United States, Washington, DC 20530. Time To File a Civil Action You have 60 days to file a civil action (ask for court review). The 60 days start the day after you receive this letter. We assume you received this letter 5 days after the date on it unless you show us that you did not receive it within the 5-day period. See Next Page Case 5: 17-cy-05251-ELW Document 1-1 * RESTRICTED * Filed 12/04/17 Page 4 of 5 PageID #: 6 Melissa Yvette Fair 2115) Page 3 of 3 If you cannot file for court review within 60 days, you may ask the Appeals Council to extend your time to file. You must have a good reason for waiting imore than 60 days to ask for court review. You must make the request in writing and give your reason(s) in the request. You must inail your request for more time to the Appeals Council at the address shown at the top of this notice. Please put the Social Security number(s) also shown at the top of this notice on your request. We will send you a letter telling you wliether your request for more time has been granted. II I IR III I IR III I RI II AI II I II I II I II I III I III I IIH II I II REI I SEILT About The Law The right to court review for clainis under Title II (Social Security) is provided for in Section 205 (g) of the Social Security Act. This section is also Section 405 (g) of Title 42 of the United States Code. The right to court review for claims under Title XVI (Supplemental Security Income) is provided for in Section 1631 (c {3) of the Social Security Act. This section is also Section 1383 (c) of Title 42 of the United States Code. The rules on filing civil actions are Rules 4 (c) and (i) in the Federal Rules of Civil Procedure. If You Have Any Questions If you have any questions, you may call, write, or visit any Social Security office. If you do call or visit an office, please have this notice with you. The telephone number of the local office that serves your area is 877-694-5493. Its address is: SOCIAL SECURITY 2153 E. JOYCE BLVD. SUITE 101 FAYETTEVILLE, AR 72703-9956 Annnal c770cna OI connn macmaoin, IAM. nr 767: Yn earn Is Deana R. Ertl Lombardi Deana R. Ertl-Loinbardi Administrative Appeals Judge Enclosure: Order of Appeals Council cc: Jason K. Baril 706 Walnut Street Suite 800 Knoxville, TN 37902 Case 5: 17-cv-05251-ELW Document 1-1-* RESTRIETED * Filed 12/04/17 Page 5 of 5 PagelD #: 7 Social Security Administration OFFICE OF DISABILITY ADJUDICATION AND REVIEW ORDER OF APPEALS COUNCIL IN THE CASE OF CLAIM FOR 11III UN II IKI II III I III II III ILIRI I III I II III I IIII IR III IR III III II IKI II KII I III II IJRI I Supplemental Security Income Melissa Yvette Fair (Claimant) (Wage Earner) 2115 (Social Security Number) The Appeals Council lhas received additional evidence, which it is making part of the record. That evidence consists of the following exhibits: Exhibit 11B Request for Review dated December 7, 2016 Date: October 4, 2017 INNINN

CIVIL COVER SHEET for case initiated by Melissa Yvette Fair.

PageID JS 44 (Rev. 12 / 12) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM .) I. (a) PLAINTIFFS DEFENDANTS Melissa Yvette Fair Commissioner of SSA, Office of Regional Chief Counsel, Region VI, 1301 Young Street, Ste. A702, Dallas, TX 75202 - 5433 (b) County of Residence of First Listed Plaintiff Benton (EXCEPT INU.S. PLAINTIFF CASES) County of Residence of First Listed Defendant (INU.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. (c) Attorneys (Firm Name, Address, and Telephone Number) Howard D. Olinsky, Esq ., Olinsky Law Group, 300 S. State St ., Ste. 420, Syracuse, NY 13202, 315 - 701 - 5780 Attorneys (If Known) United States Attorney's Office, Western District of Arkansas, 414 Parker Avenue, Fort Smith, AR 72901 II. BASIS OF JURISDICTION (Place an " X " in One Box Only) O iU.S. Government Plaintiff O 3 Federal Question (U. S. Government Nol a Party) | III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an " x " in One Box for Plaintif (For Diversity Cases Only) and One Box for Defendant) PTF DEF PTF DEF Citizen of This State 0 1 0 1 Incorporated or Principal Place 0 4 0 4 of Business In This State 2U.S. Government Defendant O 4 Diversity (Indicate Citizenship of Parties in Item III) Citizen of Another State O 2 O 2 Incorporated and Principal Place 0 5 0 5 of Business In Another State Citizen or Subject of a O 3 O 3 Foreign Nation 0 6 0 6 Foreign Country IV. NATURE OF SUIT (Place an " X " in One Box Only) CONTRACT TORTS E FORFEITURE / PENALTY BANKRUPTCY OTHER STATUTES 0 110 Insurance PERSONAL INJURY PERSONAL INJURY a 625 Drug Related Seizure Jo 422 Appeal 28 USC 158 0 375 False Claims Act 0 120 Marine 0 310 Airplane 0 365 Personal Injury • of Property 21 USC 881 O 423 Withdrawal 0 400 State Reapportionment O 130 Miller Act O 315 Airplane Product Product Liability O 690 Other 28 USC I57 O 410 Antitrust O 140 Negotiable Instrument Liability 0 367 Health Care / 0 430 Banks and Banking O 150 Recovery of Overpayment o 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 0 450 Commerce & Enforcement of Judgment | Slander Personal Injury 0 820 Copyrights 0 460 Deportation 0 151 Medicare Act O 330 Federal Employers ' Product Liability 0 830 Patent 0 470 Racketeer Influenced and O 152 Recovery of Defaulted Liability O 368 Asbestos Personal 0 840 Trademark Corrupt Organizations Student Loans 0 340 Marine Injury Product 0 480 Consumer Credit (Excludes Veterans) O 345 Marine Product Liability LABOR SOCIAL SECURITY 0 490 Cable / Sat TV O 153 Recovery of Overpayment Liability PERSONAL PROPERTY (0 710 Fair Labor Standards O 861 HIA (1395ff) O 850 Securities / Commodities / of Veteran's Benefits 0 350 Motor Vehicle 0 370 Other Fraud Act 0 862 Black Lung (923) Exchange O 160 Stockholders ' Suits O 355 Motor Vehicle 0 371 Truth in Lending O 720 Labor / Management O 863 DIWCIDIww (405 (g) O 890 Other Statutory Actions 0 190 Other Contract Product Liability 0 380 Other Personal Relations 8 864 SSID Title XVI 0 891 Agricultural Acts 0 195 Contract Product Liability 0 360 Other Personal Property Damage o 740 Railway Labor Act o 865 RSI (405 (e)) O 893 Environmental Matters O 196 Franchise Injury 0 385 Property Damage Jo 751 Family and Medical 0 895 Freedom of Infomation O 362 Personal Injury - Product Liability Leave Act Act Medical Malpractice o 790 Other Labor Litigation 3 896 Arbitration REAL PROPERTY CIVIL RIGHTS | PRISONER PETITIONS ] o 791 Employee Retirement FEDERAL TAX SUITS O 899 Administrative Procedure o 210 Land Condemnation o 440 Other Civil Rights Habeas Corpus: Income Security Act Jo 870 Taxes (U. S. Plaintiff Act / Review or Appeal of 0 220 Foreclosure 0 441 Voting 0 463 Alien Detainee or Defendant) Agency Decision 0 230 Rent Lease & Ejectment O 442 Employment O 510 Motions to Vacate o 871 IRS — Third Party O 950 Constitutionality of 0 240 Torts to Land 0 443 Housing Sentence 26 USC 7609 State Statutes 0 245 Tort Product Liability Accommodations o 530 General 0 290 All Other Real Property 0 445 Amer. w / Disabilities - O 535 Death Penalty IMMIGRATION Employment Other: O 462 Naturalization Application O 446 Amer. w / Disabilities - | o 540 Mandamus & Other 0 465 Other Immigration Other O 550 Civil Rights Actions o 448 Education 0 555 Prison Condition O 560 Civil Detainee - Conditions of Confinement V. ORIGIN (Place an " x " in One Box Only) 1 Original 02 Removed from O 3 Remanded from 0 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict Proceeding State Court Appellate Court Reopened Another District Litigation (specify) Cite theU.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 42 USC 405 (g) and 42 USC 1383 (c) (3) VI. CAUSE OF ACTION Brief description of cause: Denial of Supplemental Security Income benefits. VII. REQUESTED IN O CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23, F. R. Cv. P. JURY DEMAND: 0 Yes No VIII. RELATED CASE (S) IF ANY (See instructions): JUDGE DOCKET NUMBER DATE SIGNATURE OF 11 / 30 / 2017 FOR OFFICE USE ONLY SIGNATURE OF ALL RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

MOTION for Leave to Proceed in forma pauperis, MOTION for Service by Melissa Yvette Fair.

PageID #: 9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS (FAYETTEVILLE DIVISION) MELISSA YVETTE FAIR, Soc. Sec. # XXX - XX - 2115, VV Civil Action No. 17 - 5251 Plaintiff, ب ب ب ب NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, US DISTRICT COURT WESTERN DIST ARKANSAS FILLED DEC 04 2017 DOUGLAS F. YOUNG, Clerk Defendant. BY Deputy Clark MOTION TO PROCEED IN FORMA PAUPERIS Through counsel, Howard D. Olinsky, Plaintiff moves for leave to proceed in forma pauperis. This motion is supported by the accompanying application to proceed in District Court without prepaying fees or costs. Respectfully submitted, Ah lansky BY: Howard D. Olinsky, Esq. NYS Bar #: 2044865 Attorney for Plaintiff OLINSKY LAW GROUP One Park Place 300 S. State Street, Ste. 420 Syracuse, New York 13202 t. 315. 701. 5780 f: 315. 701. 5781 e: holinsky @ windisability. com DATED: November 30, 2017

IFP application)(rg

Case 5: 17-cv-05251-ELW Document 3-1 * RESTRICTED * Filed 12/04/17 Page 1 of 5 PageID #: 10 Page I of 5 AO 239 (01' 09) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) UNITED STATES DISTRICT COURT for the Western District of Arkansas MELISSA YVETTE FAIR Plaintiff: Petitioner NANCY A. BERRYHILL, v, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant. Respondent VVVV Civil Action No...... APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (Long Form) Affidavit in Support of the Application Instructions I am a plaintiff or petitioner in this case and declare that I am unable to pay the costs of these proceedings and that I ain entitled to the relief requested. I declare under penalty of perjury that the information below is true and understand that a false statement imay result in a disinissal of Imy claims. Complete all questions in this application and then sign it. Do not leave any blanks: if the answer to a question is " 0, " " none, " or " not applicable (NA), " write that response. If you need more space to answer a question or to explain your answer, attach a separate sheet of paper identified with your name, your case's docket number, and the question number. Signed: Nelissa Y. fair Date: 11/10/2017 For both you and your spouse estimate the average amount of money received from each of the following sources during the past 12 months. Adjust any ainount that was received weekly, biweekly, quarterly, seniannually, or annually to show the monthly rate. Use gross amounts, that is, amounts before any deductions for taxes or otherwise, Income source Average monthly income Income amount expected amount during the past 12 next month months You Spouse You Spouse Employment GA Self-employment Income from real property (such as rental income) $ GA $ Interest and dividends LA de apele de A Gifts I GA aaaa Alimony $ $ Child support Case 5: 17-cv-05251-ELW Document 3-1 * RESTRICTED * Filed 12/04/17 Page 2 of 5 PageID #: 11 Page 2 of 5 AO 239 (01/09) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) GA GA Retirement (such as social security, pensions, annuities, insurance) Disability (such as social security, insurance payments) A GI Is@] s $ W s Unemployment payments Olale e ents GA I A AT GAT Public-assistance (such as welfare) A Other (specify): $ A 0. 00 $ 0. 00 $ 0. 00 $ 0. 00 Total monthly income: . List your employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.) Employer Address Dates of employment monthly pay Gross ove not been employed Since 199a. $ GA 3. List your spouse's employment history for the past two years, most recent employer first (Gross monthly pay is before tares or other deductions.) Employer Address Dates of employment Gross monthly pay Ą. How much cash do you and your spouse have? $ Below, state any money you or your spouse have in bank accounts or in any other financial institution. Financial institution Type of account Amount you have Amount your spouse has NOU. GA $ $ $ If you are a prisoner, you must attach a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months in your institutional accounts. If you have multiple accounts, perhaps because you have been in multiple institutions, attach one certified statement of each account. Case 5: 17-cy-05251-ELW Document 3-1 * RESTRICTED * Filed 12/04/17 Page 3 of 5 PageID #: 12 Page 3 of 5 AO 239 (01-09) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Fom) List the assets, and their values, which you own or your spouse owns. Do not list clothing and ordinary household furnishings. Assets owned by you or your spouse GA Horne (value) Other real estate (value) A GA I I GC0 Motor vehicle # 1 (value) Make and year: 1991 cnevy Make and year: Model: LUMINOA Registration #: Motor vehicle # 2 (Value) Make and year: Model: Registration #: Other assets (Value) Other assets (Value) 6. State every person, business, or organization owing you or your spouse money, and the amount owed. Person owing you or your spouse Amount owed to you Amount owed to your spouse money NA $ $ GA $ $ State the persons who rely on you or your spouse for support. Name (or, if under 18, initials only) Relationship Age NOQ. Case 5: 17-cv-05251-ELW Document 3-1 * RESTRICTED * Filed 12/04/17 Page 4 of 5 PagelD #: 13 Page 4 of 5 AO 239 (01/09) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) Estimate the average monthly expenses of you and your family. Show separately the amounts paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, seiniannually, or annually to show the monthly rate. You Your spouse Rent or home-mortgage payment (including tot rented for mobile home) Are real estate taxes included? O Yes O No Is property insurance included? Yes O No Utilities (electricity, heating firel, water, sewer, and telephone) Home maintenance (repairs and upkeep) Food A T A T A T A T A Clothing Laundry and dry-cleaning Medical and dental expenses Transportation (not including motor vehicle payments) $ Seelajala oo a eƏeode Recreation, entertainment, newspapers, inmagazines, etc. Insurance (not deducted from wages or included in mortgage payments) Homeowner's or renter' s: Life: Health: $ IL A I VA 1 A Motor vehicle: Other: Taxes (not deducted from wages or included in mortgage payments) (specify): Installinent payments Motor vehicle: Credit card (name); Department store (name); Other: olo Alimony, maintenance, and support paid to others Case 5: 17-cv-05251-ELW Document 3-1 * RESTRICTED * Filed 12/04/17 Page 5 of 5 PageID #: 14 Page 5 of 5 AO 239 (01/09) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Fom) Regular expenses for operation of business, profession, or farm (attach detailed statement) Other (specify); $ 0. 00 0. 00 Total monthly expenses: Do you expect any major changes to your monthly income or expenses or in your assets or liabilities during the next 12 imonths? o Yes INo If yes, describe on an attached sheet. 10. cerrotar v. v.. wwwww PYWAY Have you paid or will you be paying--an attorney any money for services in connection with this case, including the coinpletion of this form? Yes O No My attorney has been retained on a contingency fee basis, and if successful, will petition If yes, how much? $ the court for attorney fees, costs, and expenses under the Equal Access to Justice Act. If yes, state the attorney's name, address, and telephone number: (Add name of attorney) Olinsky Law Group 300 S. State Street, Suite 420 Syracuse, NY 13202 Have you paid or will you be paying anyone other than an attorney (such as a paralegal or a typist) any money for services in connection with this case, including the completion of this form? J Yes No If yes, how inuch? $ If yes, state the person's name, address, and telephone number: 12. Provide any other information that will help explain why you cannot pay the costs of these proceedings. cannot afford to pay the filing fee as I raye rincano. I am currently living win a family identify the city and state of your legal residence. Tender ung hayoS e tr4 Bella Vista, AR Your daytime phone number: (44) 559-340o Your age: 55 Your years of schooling: la Your daytime phone number: Last four digits of your social-security number:

NOTICE OF DIRECT ASSIGNMENT TO A U.S. MAGISTRATE JUDGE. This case has been assigned to a U.S. Magistrate Judge to conduct all proceedings and for entry of a final judgment. You <u>must</u> file the attached form memorializing consent or requesting reassignment to a District Judge within fourteen (14) days. Consent or Reassignment form due by 12/18/2017.

#: 15 IN THE UNITED STATE DISTRICT COURT WESTERN DISTRICT OF ARKANSAS NOTICE OF DIRECT ASSIGNMENT TO A UNITED STATES MAGISTRATE JUDGE In accordance with the provisions of 28 U.S.C. § 636(c), Rule 73 of the Federal Rules of Civil Procedure, and General Order 42, Plan for Direct Assignment of Social Security Appeal Cases to a United States Magistrate Judge, you are notified that any and all proceedings in this case, including the entry of a final judgment, will be conducted by the United States Magistrate Judge. Any appeal from a judgment entered by the presiding Magistrate Judge will be to the United States Court of Appeals for the Eighth Circuit in the same manner as an appeal from any other judgment in this District Court. Exercise of jurisdiction by the United States Magistrate Judge assigned is permitted only if all parties voluntarily consent. You may, without adverse substantive consequences, withhold your consent. While consent to the assignment to a Magistrate Judge is entirely voluntarily, the filing of the Consent/Reassignment Form, memorializing consent or requesting reassignment to a District Judge is mandatory. Failure to file the Consent/Reassignment Form in a timely manner may result in a delay in processing the case. Please indicate consent or request for reassignment by completing and filing the Consent/Reassignment Form in CM/ECF within fourteen (14) days from the filing of this notice. THE CONSENT/REASSIGNMENT FORM SHOULD BE FILED THROUGH THE COURT’S ELECTRONIC CASE FILING (CM/ECF) SYSTEM using the Civil Event: Other Filings-> Notices-> Notice of Consent/Reassignment-SSA

Consent/Reassignment Form)(rg

PageID #: 16 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS) Melissa Yvette Fair) CONSENT/REASSIGNMENT FORM Plaintiff(s)) SOCIAL SECURITY APPEAL CASES) vs.) Case No. 5:17-cv-05251)) Social Security Administration Commissioner)) Defendant(s.)) Exercise of jurisdiction by the Magistrate Judge assigned is permitted only if all parties voluntarily consent. You may, without adverse substantive consequences, withhold your consent. While consent to the assignment of the case to a Magistrate Judge is entirely voluntary, submission of this Consent/Reassignment Form memorializing consent or requesting reassignment to a District Judge is mandatory. Consent Reassignment Party(ies) Represented Attorney Signature Date FILE THE CONSENT/REASSIGNMENT FORM THROUGH THE COURT’S ELECTRONIC CASE FILING (ECF) SYSTEM USING the Civil Event: Other Filings-> Notices-> Notice of Consent/Reassignment-SSA This form is also available on the Court’s website: www.arwd.uscourts.gov-> ONLINE FORMS

ORDER granting {{3}} Motion for Leave to Proceed in forma pauperis and DIRECTING SERVICE on Social Security Administration Commissioner. The plaintiff is directed to serve a copy of the complaint and this order on the defendant by certified mail, return receipt requested, as well as the US Attorney General and US Attorney for Western District/Arkansas without prepayment of fees and costs. Defendant is to answer within 60 days from the date of service. Signed by Honorable Erin L. Wiedemann on December 4, 2017.

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION MELISSA YVETTE FAIR PLAINTIFF v. CIVIL NO. 17-5251 NANCY A. BERRYHILL, Commissioner Social Security Administration DEFENDANT ORDER On December 4, 2017, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision of the Commissioner of the Social Security Administration. (Doc. 1). Plaintiff also filed a request for leave to proceed in forma pauperis (IFP) on the same date. (Doc. 3). After review, it is found that Plaintiff is unable to pay for the costs of commencement of suit and, accordingly, the following order is entered this 4th day of December 2017: IT IS HEREBY ORDERED that Plaintiff's motion for leave to proceed in forma pauperis is granted. The Court hereby directs that a copy of the complaint, along with a copy of this order, be served by the Plaintiff by certified mail, return receipt requested, on the Defendant, Nancy A. Berryhill, Acting Commissioner, Social Security Administration, as well as, Jeff Sessions, U.S. Attorney General, and Claude S. Hawkins, Jr., Assistant U.S. Attorney. The Defendant is ordered to answer within sixty (60) days from the date of service. IT IS SO ORDERED./s/Erin L. Wiedemann HON. ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE

THE DOCUMENT IS RESTRICTED TO COURT USERS AND CASE PARTICIPANTS. Summons Issued as to Social Security Administration Commissioner, U.S. Attorney and U.S. Attorney General and returned to attorney or plaintiff for service. YOU MUST PRINT THIS ISSUED SUMMONS, WHICH IS THE MAIN DOCUMENT. PAPER COPIES WILL <U>NOT</U> BE MAILED.

Case 5: 17-cv-05251-ELW Document 6 * RESTRICTED * Filed 12/04/17 Page 1 of 6 PageID #: 18 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the Western District of Arkansas MELISSA YVETTE FAIR Plaintiff(s) V. Civil Action No. IF 525! NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) United States Attorney's Office Western District of Arkansas 414 Parker Avenue Fort Smith, AR 72901 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it)--or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. 41 RT A Isi CLERK OF COURT TEA DIN OF IRA Date: 12/4/2017 Roxana qısarrero Signature of Clerk or Deputy Clerk Case 5: 17-cv-05251-ELW Document 6 * RESTRICTED * Filed 12/04/17 Page 2 of 6 PageID #: 19 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filled with the court unless required by Fed. R. Civ. P. 4 (0)) This summons for (name of individual and title, if any) was received by me on (date) O I personally served the summons on the individual at (place) on (date); or O I left the summons at the individual's residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual's last known address; or, who is O I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date); or O I returned the summons unexecuted because; or D Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc: Case 5: 17-cv-05251-ELW Document 6 * RESTRICTED * Filed 12/04/17 Page 3 of 6 PageID #: 20 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the Western District of Arkansas MELISSA YVETTE FAIR Plaintiff(s) v. Civil Action No. 17-525I NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) Commissioner of SSA Office of Regional Chief Counsel, Region VI 1301 Young Street, Ste. A702 Dallas, TX75202-5433 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it)--or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3)-you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Howard D. Olinsky, Esq. Olinsky Law Group 300 s. State St., Šte. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. ISTRIC CLERK OF COURT OF IR Date: 12/4/2017 Rozlana guerrero Signature of Clerk or Deputy Clerk Case 5: 17-cv-05251-ELW Document 6 * RESTRICTED * Filed 12/04/17 Page 4 of 6 PageID #: 21 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (M)) This summons for (name of individual and title, if any) was received by me on (date) O I personally served the summons on the individual at (place) on (date); or O I left the summons at the individual's residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual's last known address; or, who is O I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date); or O I returned the summons unexecuted because; or O Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc: Case 5: 17-cv-05251-ELW Document 6 * RESTRICTED * Filed 12/04/17 Page 5 of 6 PageID #: 22 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the Western District of Arkansas MELISSA YVETTE FAIR Plaintiff(s) V. Civil Action No. 17-S251 VV NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) A SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) United States Attorney General Constitution Avenue & 10th St., NW Washington, DC 20530 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it)---or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. KURT WEAT CLERK OF COURT Date: 12/4/2017 Rolana querrero Signature of Clerk or Deputy Clerk Case 5: 17-cv-05251-ELW Document 6 * RESTRICTED * Filed 12/04/17 Page 6 of 6 PageID #: 23 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (0)) This summons for (name of individual and title, if any) was received by me on (date) O I personally served the summons on the individual at (place) on (date); or O I left the summons at the individual's residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual's last known address; or, who is O I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date); or O I returned the summons unexecuted because; or D Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

CONSENT TO ASSIGNMENT to U.S. Magistrate Judge by Melissa Yvette Fair. Government consent acknowledged pursuant to Standing Consent Letter.

PageID #: 24 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS Melissa Yvette Fair Plaintiff (s)) CONSENT / REASSIGNMENT FORM SOCIAL SECURITY APPEAL CASES) VS .) Case No. 5: 17 - cv - 05251 Social Security Administration Commissioner Defendant (s .) AA Exercise of jurisdiction by the Magistrate Judge assigned is permitted only if all parties voluntarily consent. You may, without adverse substantive consequences, withhold your consent. While consent to the assignment of the case to a Magistrate Judge is entirely voluntary, submission of this Consent / Reassignment Form memorializing consent or requesting reassignment to a District Judge is mandatory. Consent A Reassignment O Melissa Yvette Fair Party (ies) Represented Mbanak Attorney Signature Date FILE THE CONSENT / REASSIGNMENT FORM THROUGH THE COURT'S ELECTRONIC CASE FILING (ECF) SYSTEM USING the Civil Event: Other Filings - > Notices - > Notice of Consent / Reassignment - SSA This form is also available on the Court's website: www. arwd. uscourts. gov - > ONLINE FORMS

SUMMONS Returned Executed by Melissa Yvette Fair. Social Security Administration Commissioner served on 12/14/2017, answer due 2/12/2018.

PageID #: 25 PageID #: 26 Date: December 14, 2017 Moira Deutch: The following is in response to your December 14, 2017 request for delivery information on your Certified Mail™/RRE item number 9314869904300041310278. The delivery record shows that this item was delivered on December 14, 2017 at 10:08 am in FORT SMITH, AR 72901. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local Post Office or postal representative. Sincerely, United States Postal Service PageID #: 27 PageID #: 28 Date: December 14, 2017 Moira Deutch: The following is in response to your December 14, 2017 request for delivery information on your Certified Mail™/RRE item number 9314869904300041310544. The delivery record shows that this item was delivered on December 14, 2017 at 12:26 pm in DALLAS, TX 75202. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local Post Office or postal representative. Sincerely, United States Postal Service PageID #: 29 PageID #: 30 Date: December 18, 2017 Moira Deutch: The following is in response to your December 18, 2017 request for delivery information on your Certified Mail™/RRE item number 9314869904300041310599. The delivery record shows that this item was delivered on December 18, 2017 at 4:50 am in WASHINGTON, DC 20530. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local Post Office or postal representative. Sincerely, United States Postal Service

ANSWER to {{1}} Complaint by Social Security Administration Commissioner.

PageID #: 31 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION MELISSA YVETTE FAIR,)) Plaintiff,)) v.) Civil No.: 5:17-cv-05251-ELW) NANCY A. BERRYHILL,) Acting Commissioner,) Social Security Administration,)) Defendant.) DEFENDANT COMMISSIONER'S ORIGINAL ANSWER TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW the Acting Commissioner, Social Security Administration, Defendant, through her attorneys, Duane A. Kees, United States Attorney for the Western District of Arkansas, and Kendall M. Rees, Special Assistant United States Attorney for the Western District of Arkansas, and files this, her Answer to the Complaint of Melissa Yvette Fair, Plaintiff, and for her Answer states: 1. Defendant admits the allegations contained in paragraphs 1, 2, 3, 4, and 5 of Plaintiff's Complaint. 2. Paragraphs 6 and 7 of Plaintiff's Complaint state legal conclusions to which no responsive pleading is required. To the extent that the Court deems a responsive pleading is necessary, Defendant denies the same. 3. In response to Plaintiff's request in paragraphs 1 and 2 of her Prayer that the Court review the Commissioner's final decision and find her entitled to benefits or remand the case for a new hearing and/or further development, Defendant states that Plaintiff has not shown PageID #: 32 that an award of benefits or a remand is warranted under section 205(g) of the Social Security Act, 42 U.S.C. ' 405(g). 4. With respect to Plaintiff's request in paragraph 3 of her Prayer that an attorney's fee be awarded by the Court, Defendant states that if the Court renders a judgment favorable to Plaintiff, the Court may award a reasonable attorney's fee, not to exceed 25 percent of the total past-due benefits, pursuant to sections 206(b) and 1631(d)(2) of the Act, 42 U.S.C. §§ 406(b), 1383(d)(2). Any fee so awarded would be paid from such past-due benefits. Further, under the Equal Access to Justice Act, should Plaintiff prevail and file an application for fees against the United States in accordance with the requirements of 28 U.S.C. § 2412, enacted as part of the Equal Access to Justice Act, the Commissioner reserves the right to oppose any award under this statute. 6. With respect to Plaintiff's request in paragraph 4 of her Prayer for such other and further relief as the Court deems just and proper, Defendant states that this constitutes a Prayer for Relief to which no response is deemed necessary. However, if the Court requires a response, Defendant denies Plaintiff is entitled to judgment or the relief sought. 7. The remainder of Plaintiff's Complaint represents a Prayer for Relief to which no responsive pleading is required. To the extent that the Prayer for Relief is deemed to allege facts to which a response is required, Defendant denies the allegations. 8. Defendant denies all other allegations of Plaintiff's Complaint not specifically admitted. 9. In accordance with section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), Defendant files as part of the answer a certified copy of the transcript of the record including the evidence upon which the findings and decisions complained of are based. 2 PageID #: 33 WHEREFORE, Defendant prays for judgment dismissing the Complaint with costs and disbursements, and for judgment in accordance with section 205(g) of the Social Security Act, 42 U.S.C. §405(g), affirming the Commissioner's final decision. Respectfully submitted, DUANE A. KEES UNITED STATES ATTORNEY _/s/ Kendall M. Rees___________ Kendall M. Rees Special Assistant U.S. Attorney Washington State Bar # 20030 1301 Young Street, Suite A-702 Dallas, Texas 75202-5433 (214) 767-3757 (214) 767-4473 FAX Kendall.Rees@ssa.gov CERTIFICATE OF SERVICE I, Kendall M. Rees, Special Assistant United States Attorney for the Western District of Arkansas, certify that on February 8, 2018, I electronically filed the foregoing with the Clerk of Court using the CM/ECF System, which will send notification of such filing to the following: Howard D. Olinsky, Plaintiff's Attorney. /s/ Kendall M. Rees_____ Kendall M. Rees Special Assistant United States Attorney 3

APPEAL BRIEF (SOCIAL SECURITY) by Melissa Yvette Fair.

5 PageID #: 408 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS MELISSA YVETTE FAIR, Plaintiff, CIVIL ACTION NO. 5:17-cv-05251-ELW -v- NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. ----------------------------------------------------------- PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF A SOCIAL SECURITY APPEAL ISSUES PRESENTED FOR REVIEW 1. The ALJ erred in affording "little weight" to ARNP Williams, which was incredibly harmful, as Plaintiff would have been found to meet Listing 12.04 if this opinion was given adequate weight. 2. The ALJ's RFC did not account for Plaintiff's moderate limitations in daily living, social functioning, and concentration, persistence, or pace, leaving the Step 5 determination unsupported by substantial evidence PROCEDURAL STATUS On October 5, 2015, Melissa Yvette Fair ("Plaintiff"), protectively applied for Title XVI Supplemental Security Income, alleging disability beginning June 1, 2015, due to anxiety, depression, panic disorder, and post-traumatic stress disorder ("PTSD"). Administrative Transcript ("T") at 51, 150. The claims were initially denied on January 25, 2016, and upon reconsideration on May 9, 2016. T 10, 66, 86. After a hearing (T 27-49), Administrative Law Judge ("ALJ") Harold D. Davis denied the application. T 9-21. In the decision, the ALJ found Plaintiff had not engaged in substantial gainful activity since October 5, 2015, the application date. T 13. He found that Plaintiff suffered from the severe impairments of major depression, anxiety, asthma, and obesity. T 13. Additionally, 1 5 PageID #: 409 he found that Plaintiff does not have an impairment or combination of impairments that met or medically equaled one of the listed impairments. T 13. The ALJ found that Plaintiff had moderate limitations in her activities of daily living, social functioning, and concentration, persistence, and pace. T 14. The ALJ then determined that Plaintiff had the residual functional capacity ("RFC") to: Perform light work… except the claimant is able to perform simple tasks with simple instructions. She must work in a controlled environment with no exposure to dusts, fumes or smoke in concentrated amounts and no temperature extremes. T 14. Relying on VE testimony, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. T 19-20. Thus, the ALJ found Plaintiff not disabled. T 21. On October 4, 2017, the Appeals Council denied a Request for Review. T 1-4. This action followed. This Court has jurisdiction of this action. 42 U.S.C. §§ 405(g), 1383(c)(3). STATEMENT OF FACTS On the alleged onset date, Plaintiff was 53 years old. T 51. Plaintiff has at least a high school education. T 83. She reported past work as the manager of a singing group. T 82. A. Medical records On April 21, 2016, Ross Kelley, LPC, noted that Plaintiff had symptoms including anxiety, panic attacks, depression, and anger. T 362. LPC Kelley indicated that Plaintiff's functional status was "impaired." T 362. LPC Kelley treated Plaintiff on May 5, 2016. T 360. Plaintiff reported times where a fog comes over her and she cannot think. T 360. Plaintiff reported that this can happen at any 2 5 PageID #: 410 time, and occurs multiple times per day. T 360. Celeste Williams, ARNP, treated Plaintiff on July 14, 2015. T 285. ARNP Williams noted that Plaintiff was tearful, and reported a depressed mood most of the day or nearly every day for 2 weeks, markedly diminished interest or pleasure in all, or almost all, activities, significant weight loss or weight gain, insomnia or hypersomnia, agitation or slowed psychomotor responses, fatigue or loss of energy, feelings of worthlessness or guilt, and indecisiveness or being unable to concentrate. T 285. Plaintiff treated with Sean Millhouse, LPC, on July 21, 2015. T 244. LPC Millhouse indicated that Plaintiff presented with severe family stressors, and appeared in a depressed mood, with a flat and tearful affect. T 245. Plaintiff exhibited anhedonia, and was withdrawn. T 245. LPC Millhouse noted that Plaintiff had impaired judgement and insight. T 245. Plaintiff treated with Keith Berner, M.D., on August 15, 2015. T 252. Plaintiff reported many stressors, including that her daughter revealed that her father was sexually abusing her. T 251. Plaintiff's daughter reported this to the police, after which the husband ran away and disappeared. T 251. Plaintiff reported weight loss, poor sleep, low mood, panic attacks, anxiety, and emotional instability. T 251. Dr. Berner diagnosed depressive disorder, not otherwise specified, and panic disorder. T 251. Dr. Berner indicated that Plaintiff was withdrawn and guarded, with a depressed and anxious mood. T 261. ARNP Williams treated Plaintiff once more on November 24, 2015. T 290. ARNP Williams noted that Plaintiff was positive for sleep disturbance and dysphoric moods, and indicated that Plaintiff was nervous and anxious. T 290. 3 5 PageID #: 411 On December 29, 2015, ARNP Williams completed a medical source statement regarding Plaintiff's mental limitations. T 342. Plaintiff was noted to suffer from anxiety, depression, panic attacks, PTSD, and hypothyroidism. T 342. ARNP Williams opined that Plaintiff was not reasonably expected to work full time without missing more than 2 days per month due to difficulty with focus, memory, panic attacks, anxiety, fatigue, insomnia, and depression. T 342. ARNP Williams indicated that Plaintiff would be off task for 10 to 80 percent of an average workday due to her conditions. T 342. ARNP Williams opined that Plaintiff had moderate limitations in her abilities to interact appropriately with the general public, ask simple questions or request assistance, accept instructions and respond appropriately to criticism from supervisors, get along with coworkers or peers without distracting them or exhibiting behavioral extremes, respond appropriately to changes in the work setting, be aware of normal hazards and take appropriate precautions, and travel in unfamiliar places or use public transportation. T 343-44. ARNP Williams further opined that Plaintiff had marked limitations in her abilities to remember locations and work-like procedures, understand and remember very short simple instructions, carry out very short and simple instructions, sustain an ordinary routine without special supervision, work in coordination with or proximity to others without being distracted by them, make simple work-related decisions, complete a normal workday and workweek without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number of rest periods, and tolerate normal levels of stress. T 343- 44. ARNP Williams also opined Claimant had extreme limitations in her abilities to understand and remember detailed instructions, carry out detailed instructions, maintain 4 5 PageID #: 412 attention and concertation for extended periods, perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. T 343-44. ARNP Williams indicated that Plaintiff was unable to manage her own funds, and that her limitations would last for 12 consecutive months, if not longer. T 344. Plaintiff was examined by Terry L. Efird, Ph.D., on December 31, 2015. T 296. Plaintiff described being "in a panic" most of the time, with decreased interest in activities and sleep difficulties. T 296. Plaintiff also described fluctuating weight with a 40-pound weight loss, low energy levels, and feelings of worthlessness and guilt. T 295. Plaintiff treated with ARNP Williams again on February 16, 2016. T 326. Plaintiff reported feeling a lack of focus since her family trauma. T 329. Plaintiff reported that 5 year olds can beat her at memory games, and feels off balance and zones out at times. T 329. She further reported having about four panic attacks per week, was unable to function at her normal capacity, and felt unsafe being left alone. T 330. ARNP Williams noted that Plaintiff was positive for confusion, sleep disturbances, dysphoric mood and had decreased concentration. T 333. ARNP Williams indicated that Plaintiff appeared nervous and anxious. T 333. B. Hearing Testimony Plaintiff testified to the following: She is 5'6 and weighs 293 pounds. T 32. She cannot hold a job due to her panic attacks, major anxiety, depression, and PTSD. T 34-35. She has an issue with falling, and has poor depth perception. T 36. She was married 33 years, but recently divorced. T 36. Her medications were bumped up a few weeks before the hearing as her panic attacks were not subsiding. T 38. She will only drive if she has not taken 5 5 PageID #: 413 her medication, and even then she will only drive if it is necessary. T 38. She has passed out while walking her dogs. T 40. She wakes up around noon and tries to do activities to ease her depression. T 42. Some days she is less depressed than others. T 42. On good days, she will be able to do laundry and get a few things done around the house. T 43. On bad days, she struggles to get out of bed, and then rewatches shows that she has already seen before. T 44. However, she does not remember seeing the shows, and is surprised when others tell her that she has watched them before. T 44. Usually she has three to five bad days per week. T 45. The Vocational Expert ("VE") testified that a person with Plaintiff's age, education, and work experience, with the ALJ's determined RFC, would be able to perform the jobs of mail clerk, library shelving clerk, and price marking clerk. T 48. If such a person were to miss work an average of four days per month, they would be unable to maintain competitive employment. T 48. If such a person were off-task for fifteen percent of the day, there would be no work. T 48. CONTENTIONS Pursuant to 42 U.S.C. §§ 405(g), 1383(c), this Court may review the record to determine whether the Commissioner applied the proper legal standards and whether substantial evidence supports the Commissioner's final decision to deny the Plaintiff benefits. "Substantial evidence is less than preponderance but is enough that a reasonable mind would find it adequate to support the [Commissioner's] conclusion." Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008) (internal quotation marks and citations omitted). The court must take into account evidence that detracts from the Commissioner's decision, as well as evidence that supports the decision. Id. (citing Eichelberger v. Barnhart, 390 F.3d 584, 589 6 5 PageID #: 414 (8th Cir. 2004)). To be considered disabled under the Social Security Act, an individual must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The individual's impairment(s) must be of such severity that she is not only unable to do her previous work but cannot, considering her age, education, and work experience, engage in any other kind of substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(3). The Social Security Administration utilizes a five-step sequential evaluation process for use in making disability determinations set forth in 20 C.F.R. § 416.920. 1. The ALJ erred in affording "little weight" to ARNP Williams, which was incredibly harmful, as Plaintiff would have been found to meet Listing 12.04 if this opinion was given adequate weight. A claimant's RFC is the most she can still do despite her impairments and is determined by assessing all relevant evidence. 20 C.F.R. § 416.945(a)(1). RFC is "an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A 'regular and continuing basis' means 8 hours a day, for 5 days a week." Social Security Ruling ("SSR") 96-8p. The RFC must identify the individual's functional limitations and assess their work-related abilities on a function-by-function basis. Id. The ALJ found that Plaintiff retained the residual functional capacity to perform light work as defined in 20 C.F.R. 416.967(b) except she was able to perform simple tasks with simple instructions, and must work in a controlled 7 5 PageID #: 415 environment with no exposure to dust, fumes, or smoke in concentrated amounts and no temperature extremes. T 14. In determining disability, the Agency will always consider the medical opinions of record together with the rest of the relevant evidence. 20 C.F.R. § 416.927(b). SSA regulations articulate the rules for weighing opinion evidence from treating sources: Generally, we give more weight to the opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations. 20 C.F.R. § 416.927(c)(2). SSR 06-3p requires the ALJ to evaluate the opinions of non- acceptable medical sources by looking at: how long the source has known and how frequently the source has seen the individual; how consistent the opinion is with other evidence; the degree to which the source presents relevant evidence to support an opinion; how well the source explains the opinion; whether the source has a specialty or area of expertise related to the individual's impairment; and any other factors that tend to support the opinion. The ruling goes on to say that: With the growth of managed health care in recent years and the emphasis on containing medical costs, medical sources who are not "acceptable medical sources," such as [advanced practice registered nurses] . . . have increasingly assumed a greater percentage of the treatment and evaluation functions handled primarily by physicians and psychologists. Opinions from these medical sources who are not technically deemed "acceptable medical sources," under our rules, are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other evidence in the file. Id. In making his decision, the ALJ gave "little weight" to Plaintiff's treating provider, ARNP Williams. However, this opinion should have been given more than "little weight," 8 5 PageID #: 416 and reflected much more in the mental RFC. Here, the ALJ should have afforded more weight to the opinion of ARNP Williams, as her opinion was based on a longitudinal treatment relationship with Plaintiff, and the observations which resulted. ARNP Williams treated for her mental health related problems since January of 2015. T 272. Notably, ARNP Williams is the only provider to treat Plaintiff throughout the relevant period, and treated her both before and after the exacerbation of her symptoms in March 2015. T 295. Thus, ARNP Williams has the most detailed knowledge of the toll which Plaintiff's recent traumatic experiences have had on her mental health. See SSR 06-3p ("For example, it may be appropriate to give more weight to the opinion of a medical source who is not an 'acceptable medical source' if he or she has seen the individual more often than the treating source and has provided better supporting evidence and a better explanation for his or her opinion."). Additionally, ARNP Williams' opinion was supported by her treatment notes. For example, ARNP Williams opined that Plaintiff could not reasonably be expected to work full time without missing more than 2 days per month. T 342. ARNP Williams attributed this limitation to difficulty with focus, memory, panic attacks, anxiety, fatigue, insomnia, and depression. T 342. In July 2015, Plaintiff appeared in a nervous and anxious mood, with sleep disturbances. T 284. ARNP Williams indicated that Plaintiff had been having panic attacks since her family trauma three months prior. T 283. ARNP Williams noted that Plaintiff was tearful, and reported a depressed mood most of the day or nearly every day for two weeks, markedly diminished interest or pleasure in all, or almost all, activities, significant weight loss or weight gain, insomnia or hypersomnia, agitation or slowed 9 5 PageID #: 417 psychomotor responses, fatigue or loss of energy, feelings of worthlessness or guilt, indecisiveness or being unable to concentrate. T 285. In February of 2016, ARNP Williams indicated that Plaintiff had around four panic attacks per week, and felt unsafe being left alone. T 330. Plaintiff reported being unable to function at her normal capacity, and even remarked that five-year-old children could beat her in memory games. T 329. ARNP Williams once again noted that Plaintiff appeared nervous and anxious, and was positive for confusion, sleep disturbances, dysphoric moods, and decreased concentration. T 333. Plaintiff was repeatedly noted to be nervous and anxious throughout treatment. T 284, 289, 333, 367. ARNP Williams' opinion was also consistent with the other medical sources of record. In August 2015, Dr. Berner indicated that Plaintiff was withdrawn and guarded, appearing with a depressed and anxious mood. T 261. At this appointment, Plaintiff reported weight loss, having low moods, panic attacks, anxiety, poor sleep, and emotional instability. T 251. Later that year, Dr. Efird noted a 40-pound fluctuation in weight, low energy levels, and endorsed feelings of worthlessness and guilt. T 295. At the examination, Plaintiff reported being "in a panic" most of the time, and also endorsed decreased interest in activities and sleep difficulties. T 296. While at an appointment with LPC Kelley in 2016, Plaintiff reported a "fog" which comes over her and makes her unable to think properly. T 360. LPC Kelley's months of notes always indicated that Plaintiff suffered from anxiety, panic attacks, depression, and anger, and had an impaired functional status. T 353-363 Thus, ARNP Williams' opinion should be given more weight, as it was the most accurate depiction of Plaintiff's ability to function. Depending on the particular facts in a 10 5 PageID #: 418 case, and after applying the factors for weighing opinion evidence, an opinion from a medical source who is not an "acceptable medical source" may outweigh the opinion of an "acceptable medical source," including the medical opinion of a treating source. Sloan v. Astrue, 499 F.3d 883, 889 (8th Cir. 2007) (quoting SSR 06-3p). This error was particularly harmful as Plaintiff would have been found to meet Listing 12.04, which encompasses affective disorders. The required level of severity for Listing 12.04 is met when the requirements of paragraphs A and B of the listing are shown or the requirements of paragraph C of the listing are shown. Paragraph A requires proof of a depressive, manic, or bipolar syndrome. Paragraph B requires that the syndrome result in at least two of the following: (1) marked restriction of activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of decompensation, each of extended duration. 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 12.04. Regarding Part A, Plaintiff has medically documented anxiety and depression, which causes difficulty concentrating, decreased energy, weight loss, depressed moods, loss of interest, and sleep disturbances. T 245, 261, 285, 295-96, 333. Regarding Paragraph B, under Paragraph B1, ARNP Williams indicated that Plaintiff had marked limitations in her ability to deal with normal levels of stress. T 344. Under Paragraph B3, ARNP Williams opined that Plaintiff had marked limitations regarding her abilities to remember locations and work-like procedures, understand and remember very short simple instructions, carry out very short and simple instructions, sustain an ordinary routine without special supervision, work in coordination with or proximity to others without being distracted by them, make 11 5 PageID #: 419 simple work-related decisions, and complete a normal workday/week without interruptions from psychologically based symptoms. T 343. Plaintiff has at least a marked limitation in at least two areas of functioning and as such, satisfies the Paragraph B criteria. Further, upon remand, Plaintiff would also meet the new Listing. Under the new listing, Paragraph B criteria is satisfied by showing an extreme limitation of one, or a marked of two, of the following areas of functioning: (1) understand, remember, or apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; (4) adapt or manage oneself. 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 12.04, 12.06. Under Paragraph B3, examples of concentration, persistence, or pace include sustaining an ordinary routine and working a full day. 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 12.00E3. ARNP Williams opined that Plaintiff had extreme limitations regarding her abilities to maintain attention and concentration for extended periods, and perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. T 343. ARNP Williams also opined that Plaintiff had marked limitations in her abilities to sustain an ordinary routine without special supervision, and complete a normal workday and week. T 344. ARNP Williams' opinion gives other marked limitations throughout the areas of functioning, which would also satisfy the requirements of the new Listing, as noted supra. Thus, if the ALJ had properly weighed the opinion of ARNP Williams, Plaintiff would have been found to meet Listing 12.04. For the foregoing reasons, the RFC determination is unsupported by substantial evidence. Accordingly, this matter should be remanded for further administrative proceedings. 12 5 PageID #: 420 2. The ALJ's RFC did not account for Plaintiff's moderate limitations in daily living, social functioning, and concentration, persistence, or pace, leaving the Step 5 determination unsupported by substantial evidence. "A hypothetical question must precisely describe a claimant's impairments so that the vocational expert may accurately assess whether jobs exist for the claimant." Demoreuille v. Colvin, No. 15-0528-CV-W-ODS-SSA, 2016 WL 4129117, at *2 (W.D. Mo. Aug. 3, 2016) (quoting Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996)). A hypothetical question that omits the effects of concentration, persistence, or pace deficiencies that the ALJ has found is not sufficient. Scott v. Berryhill, 855 F.3d 853, 857 (8th Cir. 2017) (quoting Newton, 92 F.3d at 695). When an ALJ states that a claimant has impairments of concentration, persistence or pace, the hypothetical must include those impairments. Meyer v. Colvin, No. 1:15-CV- 00006-JAR, 2016 WL 949526, at *6 (E.D. Mo. Mar. 14, 2016) (citing Brachtel v. Apfel, 132 F.3d 417, 421 (8th Cir. 1997)). In his decision, the ALJ found that Plaintiff had moderate limitations regarding her activities of daily living, social functioning, and concentration, persistence, or pace. T 14. However, the ALJ only limited Plaintiff to "simple tasks with simple instructions." T 14. The ALJ erred in failing to include these moderate limitations in the RFC. Demoreuille, No. 15-0528-CV-W-ODS-SSA, 2016 WL 4129117, at *2. Specifically, these limitations did not account for Plaintiff's moderate limitations regarding concentration, persistence, or pace. See Curtis v. Berryhill, No. 3:16-CV-00334-JTK, 2018 WL 337748, at *1 (E.D. Ark. Jan. 9, 2018) (Hypothetical that Plaintiff could "perform simple, routine, repetitive tasks with supervision that is simple, direct, and concrete" insufficient to account for moderate limitations in concentration, persistence, or pace). Further, "simple tasks with simple 13 5 PageID #: 421 instructions" do not account for Plaintiff's moderate limitations regarding social functioning, which would undoubtedly affect her ability to work with others on the job. This was harmful, as the ALJ relied on VE testimony to find at Step 5 that there were jobs that existed in significant numbers in the national economy Plaintiff could perform. T 20-21. However, the VE's testimony is unreliable because the hypothetical question which formed the basis of the testimony was an incomplete portrayal of Plaintiff's limitations. "In fashioning an appropriate hypothetical question for a vocational expert, the ALJ is required to include all the claimant's impairments supported by substantial evidence in the record as a whole." Finch, 547 F.3d at 937. "[V]ocational testimony elicited by hypothetical questions that fail to relate with precision the physical and mental impairments of the claimant cannot constitute substantial evidence to support the Secretary's decision." Ness v. Sullivan, 904 F.2d 432, 436 (8th Cir. 1990) (quotations and citation omitted). Here, as the ALJ, and failed to provide sufficient limitations in the RFC determination and corresponding hypothetical question to the vocational expert regarding Plaintiff's limitations in social functioning and concentration, persistence, or pace. This error means that both the RFC and hypothetical question are unsupported by substantial evidence. Thus, the ALJ's Step 5 determination is unsupported by substantial evidence as it failed to consider all of Plaintiff's limitations. Accordingly, this matter should be remanded for a complete hypothetical question asked to a VE. CONCLUSION For the foregoing reasons, it is respectfully requested that the Plaintiff's motion for judgment on the pleadings be granted, that the Commissioner's decision be vacated and that 14 5 PageID #: 422 this matter be remanded for further administrative proceedings. Respectfully submitted, /s/ Howard D. Olinsky Howard D. Olinsky, Esq. Attorney for Plaintiff Olinsky Law Group One Park Place 300 South State St., Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Email:holinsky@windisability.com 15

Certificate of Service

PageID #: 423 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS MELISSA YVETTE FAIR, Plaintiff, CIVIL ACTION NO. 5:17-cv-05251-ELW -v- NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. ----------------------------------------------------------- CERTIFICATE OF SERVICE This is to certify that I have this day served Counsel for the Defendant with Plaintiff's Memorandum of Law in support of a Social Security Appeal 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: Kendall M. Rees Special Assistant United States Attorney Washington State Bar #20030 Office of the General Counsel, SSA 1301 Young Street, Suite A-702 Dallas, Texas 75202 Phone: (214) 767-3757 Facsimile: (214) 767-4473 Email: Kendall.Rees@ssa.gov This 12th day of March, 2018 /s/ Howard D. Olinsky Howard D. Olinsky, Esq. Attorney for Plaintiff Olinsky Law Group One Park Place 300 South State St., Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Email:holinsky@windisability.com

APPEAL BRIEF (SOCIAL SECURITY) by Social Security Administration Commissioner.

PageID #: 424 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION MELISSA YVETTE FAIR)) Plaintiff,)) v.) No. 5:17-CV-05251-ELW) NANCY A. BERRYHILL,) Deputy Commissioner for Operations,) performing the duties and functions not) reserved to the Commissioner of Social) Security.) Defendant.) DEFENDANT'S APPEAL BRIEF I. ISSUES Whether substantial evidence and applicable legal authority support the November 29, 2016, Administrative Law Judge (ALJ) decision finding Plaintiff not disabled, as defined in the Social Security Act, during the period from Plaintiff's October 5, 2015, Title XVI application date through November 29, 2016. Plaintiff completed high school and almost two years of college, and was 54 years old as of the date of the ALJ's decision (Tr. 20-21, 32). On appeal, Plaintiff presents two issues, asserting: 1. The ALJ erred in affording "little weight" to ARNP Williams, which was incredibly harmful, as Plaintiff would have been found to meet Listing 12.04 if this opinion was given adequate weight. 2. The ALJ's RFC did not account for Plaintiff's moderate limitations in daily living, social functioning, and concentration, persistence, or pace, leaving the step five determination unsupported by substantial evidence. See Plaintiff's Brief at 1 II. ARGUMENT A. The ALJ Properly Accorded Little Weight to the December 29, 2015, Check-Mark Form Celeste S. Williams, ARNP, completed. The ALJ considered the evidence of record, including treatment records, the December 29, 2015, form Celeste S. Williams, ARNP [Advanced Registered Nurse Practitioner], PageID #: 425 completed, and the December 31, 2015, consultative examination report from Terry L. Efird, Ph.D. (Tr. 15-19). The ALJ expressly considered the December 29, 2015, checkmark form Celeste S. Williams, ARNP, completed (Tr. 18-19, 342-344). The ALJ explained that he accorded little weight to the form because it did not cite to any supporting clinical test results or test findings, and Ms. Williams' own treatment notes did not record any significant limitations due to Plaintiff's depression and anxiety (Tr. 19). The ALJ noted that Ms. Williams indicated that Plaintiff's depression and anxiety were considered situational (Tr. 19, 290, 342). The ALJ noted that the form appeared to be based upon Plaintiff's subjective complaints (Tr. 19). Ms. Williams' own November 24, 2015, examination finding that Plaintiff had a normal mood and affect, normal behavior, and normal judgment and thought content, supports the ALJ's observation that the December 29, 2015, form appeared to be premised on Plaintiff's own subjective claims (Tr. 19, 290, 342-344). An ALJ is not required to accept and credit a check-mark form that is not supported (Tr. 19, 342-344). The Eighth Circuit has held that a conclusory checkbox form has little evidentiary value. See Anderson v. Astrue, 696 F.3d 790 (8th Cir. 2012); Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010); Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001) (checklist format, generality, and incompleteness of the treating physicians' assessments limited their evidentiary value). The ALJ expressly considered both the treatment notes from Ms. Williams and the checkmark form she completed (Tr. 15-19). The ALJ noted that Ms. Williams was not an acceptable medical source (Tr. 19). The ALJ cited Social Security Ruling (SSR) 06-03p (1996) for the proposition that opinions that are not from acceptable sources should be evaluated (Tr. 19). Ruling 06-3p was in effect at the time the ALJ issued his decision. The ALJ expressly considered the form Ms. Williams completed and explained the reasons that he ultimately accorded the form little weight (Tr. 18-19). 2 PageID #: 426 A statement that is not from an acceptable medical source is evidence that must be considered, but there is no requirement that it be accorded any particular weight. Only acceptable medical sources can provide medical opinions. 20 C.F.R. § 416.927(a)(2) (2016); SSR 06-3p, 2006 WL 2329939, at *2 (2006). Only acceptable medical sources can be considered treating sources. 20 C.F.R. §§ 416.902, 416.927(d); SSR 06-3p, 2006 WL 2329939, at *2; see also 96-5p (1996) ("Medical source statements are medical opinions submitted by acceptable medical sources"). Social Security Ruling 06-3p, 2006 WL 2329939 (2006) provided that evidence that is not from an acceptable source must be considered. The Ruling did not direct or dictate that any particular weight be accorded to evidence that is not from an acceptable medical source. SSR 06-3p. Ruling 06-3p provided: Explanation of the Consideration Given to Opinions from "Other Sources" Since there is a requirement to consider all relevant evidence in an individual's case record, the case record should reflect the consideration of opinions from medical sources who are not "acceptable medical sources" and from "non-medical sources" who have seen the claimant in their professional capacity. SSR 06-3p, 2006 WL 2329939 at *6 (2006). The ALJ did this. The ALJ expressly considered the opinion of Ms. Williams (Tr. 19). Weighing evidence is the proper role of the ALJ. See Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002). The ALJ evaluated and considered the form Ms. Williams completed and explained the reasons that he accorded the form little weight (Tr. 18-19, 342-344). In sum, the ALJ's evaluation of December 29, 2015, form Ms. Williams completed was properly within the ALJ's discretion as the finder-of-fact (Tr. 18-19, 342-344). B. The Functional Limitations the ALJ Specified in His RFC Determination Properly Accounted For The Concrete Consequences of Plaintiff's Impairments. The ALJ held that Plaintiff's severe impairments included depression and anxiety (Tr. 12). The ALJ held that Plaintiff was capable of performing simple tasks with simple instructions (Tr. 14). Substantial evidence supports the ALJ's RFC determination. 3 PageID #: 427 The 2015 record from Keith Berner, M.D., that Plaintiff cites as being consistent with the form Ms. Williams completed predates the relevant time period ruled upon (Tr. 261). See Plaintiff's Brief at 10. Additionally, this record indicated that Plaintiff's concentration/attention span were within normal limits (Tr. 261). Plaintiff had just started Zoloft (Tr. 261). Celeste S. Williams, ARNP, reported a November 24, 2015, assessment of situational mixed anxiety and depressive disorder (Tr. 290). Ms. Williams reported that her examination revealed: "She has a normal mood and affect. Her behavior is normal. Judgment and thought content normal" (Tr. 290). Plaintiff was treated with prescribed medications: Zoloft, Buspar, and Klonopin (Tr. 290). The December 29, 2015, form Ms. Williams completed specified a diagnosis of a situational mixed anxiety and depressive disorder (Tr. 342). Plaintiff reported to consultative examiner Terry L. Efird, Ph.D., on December 31, 2016, that she had been prescribed Zoloft, Buspar, and Klonopin since June 2015, and these medications were beneficial (Tr. 296). On mental examination, Plaintiff recalled five digits forward and five digits backward (Tr. 297). Plaintiff spontaneously recalled three of three items immediately, and two of three items after an approximately five minute delay (Tr. 297). The remaining item was correctly identified via multiple choice cuing (Tr. 297). Dr. Efird specified an Axis I diagnosis of major depressive disorder, moderate; panic disorder, with agoraphobia (Tr. 297). Dr. Efird estimated Plaintiff's global assessment of functioning (GAF) at 55-65 (Tr. 297) With respect to functioning, Dr. Efird reported that Plaintiff endorsed an ability to drive unfamiliar routes and shop independently (Tr. 297). She reported going to church weekly (Tr. 298). Dr. Efird reported that Plaintiff communicated and interacted in a reasonably socially adequate manner (Tr. 298). Dr. Efird opined that Plaintiff had the capacity to perform basic cognitive tasks required for basic work like activities (Tr. 298). Digit span and serial threes were performed adequately (Tr. 298). No remarkable problems with persistence were observed (Tr. 298). Dr. Efird opined that Plaintiff appeared to be capable of performing basic work like tasks 4 PageID #: 428 within a reasonable time frame (Tr. 298). The ALJ accorded weight to the opinion of Dr. Efird (Tr. 18). April and June 2016 progress notes indicated that Plaintiff's mental health medications consisted of Klonopin and Buspar (Tr. 353, 363). A June 21, 2016, record from Celeste Williams, ARNP, indicated that Plaintiff was seen in part for medication refill, and Plaintiff noted a number of activities (Tr. 366). Ms. Williams reported that her examination revealed Plaintiff had a normal mood and affect and her behavior was normal (Tr. 367). Substantial evidence supports the ALJ's RFC determination. The ALJ did not reject or discredit the opinion of any treating physician. Plaintiff has severe impairments related to depression and anxiety, that are treated with prescribed medications. Plaintiff reported to consultative examiner Dr. Efird that her medications were beneficial (Tr. 296). The ALJ accorded weight to the opinion of consultative examiner Dr. Efird (Tr. 18). The actual contemporaneous records from Celeste S. Williams, ARNP, do not support a finding of greater functional lasting or expected to last a duration of twelve months (Tr. 289-290, 366-367). The ALJ's RFC determination should be affirmed because it is supported by substantial evidence, including treatment records and the December 31, 2015, consultative examination report of Dr. Efird. The ALJ held at step two of the sequential evaluation process that Plaintiff's severe impairments included major depression and anxiety (Tr. 12). At step three of the sequential evaluation process, the ALJ held that Plaintiff did not have an impairment or combination of impairments that met or equaled Listing 12.04, 12.06, or any other listing (Tr. 13). As part of his step three analysis, the ALJ specified that Plaintiff had moderate restriction in activities of daily living; moderate difficulties in social functioning; and moderate difficulties with regard to concentration, persistence, or pace (Tr. 13). See 20 C.F.R. § 416.920(a) (evaluation of mental impairments). Regulation 20 C.F.R. 416.920a(d)(3) provides: "If we find that you have a severe mental impairment(s) that neither meets nor is equivalent to severity to any listing, we will than 5 PageID #: 429 assess your residual functional capacity." This is what the ALJ did in the instant case (Tr. 12- 20). Plaintiff contends the ALJ's use of the term "moderate" contained in 20 C.F.R. § 416.920a(c)(4) is inconsistent with the the ALJ's RFC finding that Plaintiff was capable of performing "simple tasks with simple instructions" (Tr. 13-14). See Plaintiff's Brief at 13. There is no inconsistency or conflict. Moderate is simply a broad category in the five point scale delineated in 20 C.F.R. § 416.920a(c)(4) that falls between "mild" and "marked". The ALJ's RFC finding that Plaintiff was able to perform simple tasks with simple instructions is entirely consistent with the ALJ's earlier indication contained in the step three analysis that Plaintiff's mental impairments resulted in functional limitations that were more than mild, but less than marked, that is moderate (Tr. 13-14). The limitations the ALJ specified in his RFC determination accounted for limitations in concentration, persistence, or pace that are supported by the evidence of record. See Hulsey v. Astrue, 622 F.3d 917, 922 (8th Cir. 2010) (hypothetical question need not frame impairments in specific diagnostic terms, but instead should capture the concrete consequences of those impairments). Plaintiff has not cited any binding or published caselaw for the proposition that the use of the term moderate in a step three analysis is inconsistent with the limitations the ALJ specified in his RFC determination. See Plaintiff's brief at 13 (second paragraph). Perhaps more importantly, the evidence of record, including the treatment records and the December 31, 2015, consultative examination report from Dr. Efird does not support a finding of greater functional limitations lasting a duration of twelve months, beyond those the ALJ specified in his RFC finding. "The burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 566 U.S. 396, 407 (2009). Plaintiff has made no such showing. 6 PageID #: 430 The ALJ obtained vocational expert testimony and identified unskilled1 (SVP 2), light occupations that an individual with the same age, education, work background, and the specified exertional and nonexertional limitations could perform (DOT 209.587-034; DOT 222.587-038; and DOT 249.687-014 (Tr. 20-21, 47-48). See U.S. Dep't of Labor, Dictionary of Occupational Titles (DOT), 180, 203, 219 (4th ed. rev. 1991). The vocational expert testified that a restriction to only incidental contact with the public would not eliminate any of these jobs (Tr. 48). The fact that the fifth digit of each of the occupational codes identified is an "8" is significant because the Dictionary of Occupational Titles explains that this means that an occupation is among the least demanding occupations with respect to the extent to which it requires a worker to function in relation to people(Tr, 20-21, 47-48). The middle three digits of an occupational code represent the worker functions of a job. DOT at xix and 1005-1006 (Appendix B). The fifth digit of an occupational code represents the people functions of an occupation. Id. A fifth digit of "8" in the DOT occupational code signifies that the occupation is at the least demanding point on the spectrum (0-8), in terms of the degree to which the worker is required to function in relation to people. DOT at 1005-1006; see also DOT Vol. 1 at xix ("As a general rule, Worker Functions involving more complex responsibility and judgment are assigned lower numbers in these three lists while functions which are less complicated have higher numbers."). Substantial evidence supports the ALJ's RFC determination (Tr. 14-20). The ALJ's RFC determination in this case is within the ALJ's discretion and "zone of choice." See Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006) (appellate court will disturb ALJ's decision only if it falls outside the available "zone of choice"). 1 Regulation 20 C.F.R. § 416.967(a) defines unskilled work as work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time. 7 PageID #: 431 III. CONCLUSION Substantial evidence and applicable authority support the ALJ's November 29, 2016, decision finding Plaintiff not disabled as defined in the Social Security Act during the period from October 5, 2015, through November 29, 2016. Therefore, Defendant requests that the District Court affirm the administrative decision and dismiss Plaintiff's Complaint. Respectfully submitted, DUANE A. KEES UNITED STATES ATTORNEY /s/ Kendall M. Rees Kendall M. Rees Special Assistant U.S. Attorney Washington State Bar # 20030 1301 Young Street, Suite A-702 Dallas, Texas 75202-5433 (214) 767-3757; (214) 767-4473 Fax Kendall.Rees@ssa.gov CERTIFICATE OF SERVICE I, Kendall M. Rees, Special Assistant United States Attorney for the Western District of Arkansas, certify that on April 11, 2018, I electronically filed the foregoing with the Clerk of Court using the CM/ECF System, which will transmit a copy to Plaintiff's attorney Howard D. Olinsky. /s/ Kendall M. Rees Kendall M. Rees Special Assistant United States Attorney 8

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Description
1
12/04/2017
COMPLAINT against Social Security Administration Commissioner, filed by Melissa Yvette Fair.
1
Exhibit A)(rg
1 Attachment
2
12/04/2017
CIVIL COVER SHEET for case initiated by Melissa Yvette Fair.
3
12/04/2017
MOTION for Leave to Proceed in forma pauperis, MOTION for Service by Melissa Yvette Fair.
1
IFP application)(rg
1 Attachment
4
12/04/2017
NOTICE OF DIRECT ASSIGNMENT TO A U.S. MAGISTRATE JUDGE. This case has been assigned to a U.S. Magistrate Judge to conduct all proceedings and for entry of a final judgment. You must file the attached form memorializing consent or requesting reassignment to a District Judge within fourteen (14) days. Consent or Reassignment form due by 12/18/2017.
1
Consent/Reassignment Form)(rg
1 Attachment
5
12/04/2017
ORDER granting 3 Motion for Leave to Proceed in forma pauperis and DIRECTING SERVICE on Social Security Administration Commissioner. The plaintiff is directed to serve a copy of the complaint and this order on the defendant by certified mail, return receipt requested, as well as the US Attorney General and US Attorney for Western District/Arkansas without prepayment of fees and costs. Defendant is to answer within 60 days from the date of service. Signed by Honorable Erin L. Wiedemann on December 4, 2017.
6
12/04/2017
THE DOCUMENT IS RESTRICTED TO COURT USERS AND CASE PARTICIPANTS. Summons Issued as to Social Security Administration Commissioner, U.S. Attorney and U.S. Attorney General and returned to attorney or plaintiff for service. YOU MUST PRINT THIS ISSUED SUMMONS, WHICH IS THE MAIN DOCUMENT. PAPER COPIES WILL NOT BE MAILED.
7
12/08/2017
CONSENT TO ASSIGNMENT to U.S. Magistrate Judge by Melissa Yvette Fair. Government consent acknowledged pursuant to Standing Consent Letter.
8
12/18/2017
SUMMONS Returned Executed by Melissa Yvette Fair. Social Security Administration Commissioner served on 12/14/2017, answer due 2/12/2018.
9
02/08/2018
ANSWER to 1 Complaint by Social Security Administration Commissioner.
10
02/08/2018
SOCIAL SECURITY TRANSCRIPT by Social Security Administration Commissioner.
11
02/08/2018
TEXT ONLY SOCIAL SECURITY SCHEDULING ORDER. Plaintiff must file a brief within thirty (30) days of the date of the filing of the transcript. Plaintiff's failure to file a timely brief may result in dismissal for failure to prosecute. Defendant must file a brief within thirty (30) days of the date Plaintiff's brief is served. The parties' briefs shall not contain a recitation of the procedural history, evidence, or standard of review. Plaintiffs brief shall be limited solely to the specific points for appeal and a discussion of the pertinent evidence as related to those points (including transcript page citations for this evidence). Defendants brief shall address the issues raised in Plaintiffs brief and may include additional relevant issues, with a discussion of the pertinent evidence as related to these issues (including transcript page citations for this evidence). A reply brief may be filed within seven (7) days after the response brief is filed, and shall be limited to those issues raised in the response brief that were not previously addressed. All briefs must include citations to applicable case-law supporting the parties positions. No extension of time to file a brief will be granted for any motion filed less than ten days prior to the date the brief is due. Extensions will only be granted for good cause shown. The briefs should be no longer than ten (10) pages in length. Any brief exceeding the page limitation imposed herein may be stricken from the record. Plaintiffs SSA Appeal Brief due by 3/12/2018. Signed by Honorable Erin L. Wiedemann on February 8, 2018.
12
03/12/2018
APPEAL BRIEF (SOCIAL SECURITY) by Melissa Yvette Fair.
1
Certificate of Service
1 Attachment
13
04/11/2018
APPEAL BRIEF (SOCIAL SECURITY) by Social Security Administration Commissioner.
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