Frank v. Social Security Administration
Court Docket Sheet

Eastern District of Arkansas

3:2017-cv-00292 (ared)

MOTION for Leave to Proceed in forma pauperis by Karen L Frank.

Case 3:17-cv-00292-JLH-JJV Document 1 Filed 10/31/17 Page 1 of 2 FILED US DISTRICT COURT EASTERN OISTRICT ARKANSAS AO 240 (Rev. 07110) Application to Proceed in District Court Without Prepaying Fees or Costs (Short Fonn) J~r B1 2017 UNITED STATES DISTRICT COURT for the Eastern District of Arkansas KAREN L. FRANK) Plaintiff;Petitioner) V.) Civil Action No. COMMISSIONER OF SOCIAL SECURITY) Defendai1t/Respo11dent) APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (Short Form) 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 am entitled to the reliefrequested. In support of this application, I answer the following questions under penalty of perjury: l./f incarcerated. I am being held at: NJPt If employed there, or have an account in the instihition;Thaveattached to this document a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months for any institutional account in my name. I am also submitting a similar statement from any other institution where I was incarcerated during the last six months. 2. Jfnot incarcerated. Ifl am employed, my employer's name and address are: \ fbt \'o\-~ crnoo\td ~\\10-ao\4. My gross pay or wages are: $ ~, and my take-home pay or wages are: $ ______ per--~Q (specify pay period) ·~~···~\A..... 3. Other Income. In the past 12 months, I have received income from the following sources (check all that apply): (a) Business, profession, or other self-employment 0 Yes pPNo (b) Rent payments, interest, or dividends 0 Yes;e"No (c) Pension, annuity, or life insurance payments 0 Yes ~No (d) Disability, or worker's compensation payments 0 Yes PJ'No (e) Gifts, or inheritances 0 Yes (9 No (£) Any other sources 0 Yes ~No Ifyou answered "Yes" to any question above, describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future...,,• Case 3:17-cv-00292-JLH-JJV Document 1 Filed 10/31/17 Page 2 of 2 AO 240 (Rev. 07/10) Application to Proceed in District Court Without Prepaying Fees or Costs (Short Fonn) 4. Amount of money that I have in cash or in a checking or savings account: $.-········-~· ·"· 5. Any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or thing of value that I own, including any item of value held in someone else's name (describe tire property and its approximate vafue): 6. Any housing, transportation, utilities, or loan payments, or other regular monthly expenses (describe and provide tire a11101111t of the 111011thly expense): 7. Names (or, ifunder 18, initials only) of all persons who are dependent on me for support, my relationship with each person, and how much I contribute to their support: 8. Any debts or financial obligations (describe the amounts owed a11d to whom they are payable): cf. \ ca.,,0o-\ o~d-to (1)1 ~N-\. 1\'1"'<j ~-\ \(\(J'l. e. f\G,nc.CX'f\Q o.\'o\ W(-cr\\t\ \ \ 'N\ M_l 0 s ('N2J ~ \ \'Qq c_u_n. ' '< wn\\ a ~arn, \"'\ 'f'<\~ mt}? v DecMNitiCffz: I declar~-under penalty of perjury that the above information is true and understand that a false statement may result in a dismissal of my claims. Date: Karen L. Frank ··--··-···~················ Printed name

COMPLAINT against Social Security Administration, filed by Karen L Frank.

Case 3:17-cv-00292-JLH-JJV Document 2 Filed 10/31/17 Page 1 of 2 FILED US DISTRICT COURT EASTERN DISTRICT ARl\ANSAS UNITED STATES DISTRICT COURT OCT 31 2017 EASTERN DISTRICT OF ARKANSAS (JONESBORO DIVISION) JAMES W. McCO\:::ZM1~C By:--+f..~-r~~:!RKK) KAREN L. FRANK,) Soc.Sec. #XXX-XX-5411,)) Plaintiff,) COMPLAINT v.)) Civil Action No.) NANCY A. BERRYHILL, ACTING) COMMISSIONER OF SOCIAL SECURITY,)) ')i';'(c': f}o~"!.fL Defendant.) ~li',, ··~·..-<--~-·-~~k!.'l.-~-Plaintiff, Karen L. Frank, by her attorney, Howard D. Olinsky, alleges as follows: 1. The jurisdiction of this Court is invoked pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to review a decision of the Commissioner of Social Security denying Plaintiffs application for Social Security Disability Insurance benefits and Supplemental Security Income benefits for lack of disability. 2. This action is an appeal from a final administrative decision denying Plaintiffs claim. 3. This action is commenced within the appropriate time period set forth in the attached Appeals Council Notice dated August 29, 2017. (Exhibit A). 4. Plaintiff, whose social security number is X:XX-XX-5411, resides in Pocahontas, Randolph 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. Case 3:17-cv-00292-JLH-JJV Document 2 Filed 10/31/17 Page 2 of 2 6. The agency committed error of law by denying Appeals Council review of the decision by the Administrative Law Judge, or otherwise to deny relief that was within the authority of the Appeals Council. 7. Plaintiff is disabled. 8. The conclusions and findings of fact of the Defendant are not supported by substantial evidence and are contrary to law and regulation. WHEREFORE, Plaintiff prays that this Court: 1. Find that the Plaintiff is entitled to Social Security Disability Insurance benefits and Supplemental Security Income benefits under the provisions of the Social Security Act; or 2. Remand the case for a further hearing; 3. Award attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, on the grounds that the Commissioner's action in this case was not substantially justified; and 4. Order such other and further relief as the Court deems just and proper. Respectfully submitted, BY:·, Howard D. Olinsky, Es 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: October 30, 2017

Exhibit A

EXHIBIT A Case 3:17-cv-00292-JLH-JJV Document 2-1 Filed 10/31/17 Page 2 of 5:\.. si:q_, ~SOCIAL SECURITY ADMINISTRATION \ MfIP J Refer to: TLC Office of Disability Adjudication "'1-~'fi.I'-°'-5 4 1 1 and Review ii 5107 Leesburg Pike!! Falls Church, VA 22041-3255 •• Telephone: (877) 670-2722!ii Date: August 29, 2017 ii •-• ii ii ~!! ii NOTICE OF APPEALS COUNCIL ACTION • Ms. Karen L Frank ii!!! ii!ii This is about your request for review of the Administrative Law Judge's decision dated ii • September 28, 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--ii ii reasons do not provide a basis for changing the Administrative Law Judge's decision. ii-ii ii!! We Have Denied Your Request for Review We found no reason under our rules to review the Administrative Law Judge's decision. Therefore, we have denied your request for review. This means that the Administrative Law Judge's decision is the final decision of the Commissioner of Social Security in your case. Rules We Applied We applied the laws, regulations and rulings in effect as of the date we took this action. Under our rules, we will review your case for any of the following reasons: • The Administrative Law Judge appears to have abused his or her discretion. • There is an eITor of law. • The decision is not supported by substantial evidence. • There is a broad policy or procedural issue that may affect the public interest. • 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-====;;;;;;;;;;;;;;; Suspect Social Security Fraud?-Please visit http://oig.ssa.gov/r or call the Inspector Genenl's Fraud Hotline at 1-800-269-0271(TTY1-866-501-2101). See Next Page Case 3:17-cv-00292-JLH-JJV Document 2-1 Filed 10/31/17 Page 3 of 5 Karen L Frank-5411) Page 2 of3 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. 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 Commissioner of Social Security as the defendant and should include the Social Security number(s) shown atthe top of this letter. You or your representative must deliver copies of your complaint and of the summons issued by the court to the U.S. Attorney for the judicial district where you file your complaint, as provided in rule 4(i) of the Federal Rules of Civil Procedure. You or your representative must also send copies of the complaint and summons, by certified or registered mail, to the Social Security Administration's Office of the General Counsel that is responsible for the processing and handling of litigation in the particular judicial district in which the complaint is filed. The names, addresses, and jurisdictional responsibilities of these offices are published in the Federal Register (70 FR 73320, December 9, 2005), and are available on-line at the Social Security Administration's Internet site, http://policy.ssa.gov/poms.nsf/links/0203106020. You or your representative must also send copies of the complaint and summons, by certified or registered mail, to the Attorney General of the United States, Washington, DC 20530. Time To}'ile 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. • If you cannot file for court review within 60 days, you may ask the Appeals Council to extend your time to file. You must have a good reason for waiting more than 60 days to ask for court review. You must make the request in writing and give your reason(s) in the request. See Next Page Case 3:17-cv-00292-JLH-JJV Document 2-1 Filed 10/31/17 Page 4 of 5 Karen L Frank-5411) Page3 of3 iii!!!! You must mail your request for more time to the Appeals Council at the address shown at the top of this notice. Please put the Social Security number(s) also shown at the top of this-!!!!! notice on your request. We will send you a letter telling you whether your request for more time has been granted.-iii i ii About The Law iii ~-!!! iii ~ iii The right to court review for claims under Title II (Social Security) is provided for in Section 205(g) of the Social Security Act. This section is also Section 405(g) of Title 42 of the United States Code.!!! iii iii The right to court review for claims under Title XVI (Supplemental Security Income) is!!!! iii provided for in Section 163l(c)(3) of the Social Security Act. This section is also Section!!! 1383(c) of Title 42 of the United States Code.-iii ~ The rules on filing civil actions are Rules 4(c) and (i) in the Federal Rules of Civil Procedure.--iiii iiiii If You Have Any Questions i iii-iiii = iiii!!! If you have any questions, you may call, write, or visit any Social Security office. If you do call or visit an office, please have this notice with you. The telephone number of the local office that serves your area is (866)842-7369. Its address is: Social Security 1809 Latourette Drive Jonesboro, AR 72404-0755 Adelaide Edelson Administrative Appeals Judge Enclosure: Order of Appeals Council cc: James R Shaw P. 0. Box 1987 Fairview Heights, IL 62208 Case 3:17-cv-00292-JLH-JJV Document 2-1 Filed 10/31/17 Page 5 of 5 ii!!!--!! Social Security Administration OFFICE OF DISABILITY ADJUDICATION AND REVIEW-ii = ii ii ~ ORDER OF APPEALS COUNCIL--=!!! ii = IN THE CASE OF CLAIM FOR ii!!! iii Period of Disability iii!!!! Disability Insurance Benefits iii!!! Karen L Frank Supplemental Security Income-iii ~ (Claimant) ~-41_1~~~~~~~­--iii iii!!! (Wage Earner) (Social Security Number)-i ii i ii!!! The Appeals Council has received additional evidence which it is making part of the record. That evidence consists of the following exhibits: Exhibit 16B Request for Review of Hearing Decision, October 12,2016 Exhibit 17E Representative Brief, The Shaw Group, November 15, 2016 Date: August 29, 2017-===

Civil Cover Sheet)(jak

Case 3:17-cv-00292-JLH-JJV Document 2-2 Filed 10/31/17 Page 1 of 1 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 Karen L. Frank Commissioner of SSA, Office of Regional Chief Counsel, Region VI, 1301 Young Street, Ste. A702, Dallas, TX 75202-5433 (b) County of Residence ofFirst Listed Plaintiff ~R=a=n=d~o=l,,.o~h_______ County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEIV!NATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. (c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known) Howard D. Olinsky, Esq., Olinsky Law Group, 300 S. State St., Ste. 420, United States Attorney's Office, Eastern District of Arkansas, P.O. Box Syracuse, NY 13202, 315-701-5780 1229, Little Rock, AR 72203 II. BASIS OF JURISDICTION (Place an "X"inOneBoxOnlyJ III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box/or Plaintiff (For Diversity Cases Only) and One Box for Defendant) 0 I U.S. Government 0 3 Federal Question PTF DEF PTF DEF Plaintiff (US. Government Not a Party) Citizen of This State 0 1 0 I Incorporated or Principal Place 0 4 0 4 of Business In This State ~ 2 U.S. Government 0 4 Diversity Citizen of Another State 0 2 0 2 Incorporated and Principal Place 0 5 0 5 Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State Citizen or Subject of a 0 3 0 3 Foreign Nation 0 6 0 6 Forei IV. NATURE OF SUIT (Place an "X" in One Box Only) I C··~TRACT TORTS FORFEITURE1,..o:NALTY BANKRU,.. CY OTHER STATUTES I 0 110 Insurance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal 28 USC 158 0 375 False Claims Act 0 120 Marine 0 310 Airplane 0 365 Personal Injury-of Property 21USC881 0 423 Withdrawal 0 400 State Reapportiomnent 0 130 Miller Act 0 315 Airplane Product Product Liability 0 690 Other 28 use 1s1 0 410 Antitrust 0 140 Negotiable Instrument Liability 0 367 Health Care/0 430 Banks and Banking 0 150 Recovery of Overpayment 0 320 Assault, Libel & Pharmaceutical PRurERTY RIGHTS 0 450 Commerce & Enforcement of Judgment Slander Personal Injury 0 820 Copyrights 0 460 Deportation 0 151 Medicare Act 0 330 Federal Employers' Product Liability 0 830 Patent 0 470 Racketeer Influenced and 0 152 Recovery of Defaulted Liability 0 368 Asbestos Personal 0 840 Trademark Corrupt Organizations Student Loans 0 340 Marine Injury Product 0 480 Consumer Credit (Excludes Veterans) 0 345 Marine Product Liability LABOR SOCIALSE• ••w• v 0 490 Cable/Sat TV 0 153 Recovery of Overpayment Liability PERSONAL PROPERTY 0 710 Fair Labor Standards 0 861 HlA (1395ft) 0 850 Securities/Commodities/of Veteran's Benefits 0 350 Motor Vehicle 0 370 Other Fraud Act 0 862 Black Lung (923) Exchange 0 160 Stockholders' Suits 0 355 Motor Vehicle 0 37 l Truth in Lending 0 720 Labor/Management ~ 863 DIWC/DIWW (405(g)) 0 890 Other Statutory Actions 0 190 Other Contract Product Liability 0 380 Other Personal Relations 0 864 SSID Title XVI 0 891 Agricultural Acts 0 195 Contract Product Liability 0 360 Other Personal Property Damage 0 740 Railway Labor Act 0 865 RSI (405(g)) 0 893 Enviromnental Matters 0 196 Franchise Injury 0 385 Property Damage 0 751 Family and Medical 0 895 Freedom of Infonnation 0 362 Personal Injury-Product Liability Leave Act Act Medical Maloractice 0 790 Other Labor Litigation 0 896 Arbitration I REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 0 791 Employee Retirement FEDERAL TAX SUITS 0 899 Administrative Procedure 0 210 Land Condemnation 0 440 Other Civil Rights Habeas Corpus: Income Security Act 0 870 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 & Ejectrnent 0 442 Employment 0 510 Motions to Vacate 0 871 IRS-Third Party 0 950 Constitutionality of 0 240 Torts to Land 0 443 Housing/Sentence 26 USC 7609 State Statutes 0 245 Tort Product Liability Accommodations 0 530 General 0 2 90 All Other Real Property 0 445 Amer. w/Disabilities-0 535 Death Penalty IMMIGRATION Employment Other: 0 462 Naturalization Application 0 446 Amer. w/Disabilities-0 540 Mandamus & Other 0 465 Other Immigration Other 0 550 Civil Rights Actions 0 448 Education 0 555 Prison Condition 0 560 Civil Detainee-Conditions of Confinement V. ORIGIN (Place an "X" in One Box Only))8(I Original D 2 Removed from D 3 Remanded from D 4 Reinstated or D 5 Transferred from D 6 Multidistrict Proceeding State Court Appellate Court Reopened Another District Litigation (specifY) Cite the U.S. Civil Statute under whiche:ou are filing (Do not cite jurisdictional statutes unless diversity): VI. CAUSE OF ACTION.,..4:.:=2;...;U;..,:S::....::C=-4..:..:0:.:=5~:=a;.;;nd=-4..:..:2=-U:;,,;S::..;C::......:..13=3.l,;c=3'------------------------­ Brief description of cause: Denial of Social Security Disability and Supplemental Security Income benefits. VII. REQUESTED IN 0 CHECK IF THIS IS A CLASS ACTION DEMAND$ CHECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23, FRCv.P. JURY DEMAND: D Yes)Ir,(No VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE DOCKET NUMBER DATE SIGNATURE OF A 10/30/2017 FOR OFFICE USE ONLY RECEIPT# AMOUNT APPL YING IFP JUDGE MAG.JUDGE

ORDER granting permission to proceed in forma pauperis {{1}}. The Clerk will issue summons without prepayment of fees and costs or security therefore. Signed by Magistrate Judge Joe J. Volpe on 10/31/2017.

Case 3:17-cv-00292-JLH-JJV Document 3 Filed 10/31/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION KAREN L. FRANK PLAINTIFF v. 3:17cv00292-JLH-JJV NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT ORDER Permission is granted to proceed in forma pauperis pursuant to 28 U.S.C. ' 1915. The Clerk will issue Summons without prepayment of fees and costs or security therefore. IT IS SO ORDERED this 31st day of October, 2017. ____________________________________ JOE J. VOLPE UNITED STATES MAGISTRATE JUDGE

CONSENT to Jurisdiction by U.S. Magistrate Judge. Case reassigned to Magistrate Judge Joe J. Volpe. Signed by Judge J. Leon Holmes on 11/16/2017.

Case 3:17-cv-00292-JJV Document 4 Filed 11/16/17 Page 1 of 2 (Post 01/2014) Notice, Consent and Reference ofa Civil Action to a Magistrate Judge FILED wwwt'd:RN'litifftMftNsAs UNITED STATES DISTRICT COURT NOV 16 2017 EASTERN DISTRICT OF ARKANSAS October 31, 2017 JAMES w. MctimK, CLERK. By:,.{_ Karen L Frank "DEPCLERK) Plaintiff) v.) Case No. 3:17-cv-00292 JLH/JJV Social Security Administration) Defendant) NOTICE, CONSENT AND REFERENCE OF A CIVIL ACTION TO MAGISTRATE JUDGE VOLPE (MANDATORY RESPONSE REQUIRED) Notice of a Magistrate Judge's availability. A United States Magistrate Judge of this court is available to conduct all proceedings in this civil action and to order the entry of a final judgment. The judgment may then be appealed directly to the United States Court of Appeals like any other judgment of this court. A Magistrate Judge may exercise this authority only if all parties voluntarily consent. You may consent to have your case referred to a Magistrate Judge, or you may withhold your consent without adverse substantive consequences. The name of any party withholding consent will not be revealed to any judge who may otherwise be involved with your case. You must return this form to the Clerk of Court's office within 21 days from date of this notice regardless of whether or not you are consenting to the exercise of jurisdiction by a United States Magistrate Judge. D Election to have case remain with a United States District Judge. Consent to a Magistrate Judge's authority. The following parties consent to have a United States Magistrate Judge [] conduct all proceedings in this case including trial, the entry of final judgment, and all post-trial proceedings. Parties' printed names Dates Karen L Frank, Plaintiff \\jJQ-l r1 Social Security Admin, Defendant 3/14/2017 letter Reference Order IT IS ORDERED: This case is referred to a United States Magistrate Judge to conduct all proceedings and order the entry of a final judgment in accordance with 28 U.S.C. § 636(c).wid F~·,.?:..?v. P. 73. Date: Uovr£,,"'bf/f l}@(tf5?---7-1------D-is-tr-ic-tJ;-u-d&-e-'s_s_i&na-tu_r_e Hon. J. Leon Holmes, U.S. District Judge Printed name and title Case 3:17-cv-00292-JJV Document 4 Filed 11/16/17 Page 2 of 2 ~.... U.S. Department of Justice United States Attorney Eastern District ofArkansas 425 West Capitol Avenue. Suite 500 (501) 340-2600 Post O.Oice Box 1229 Little Rock, Arkansas 72203-1229 October 31, 201 7 Mr. James W. McCormack U.S. District Clerk U.S. District Courthouse 600 West Capitol A venue Little Rock, AR 72201 RE: Consent to a United States Magistrate Judge Dear Mr. McCormack: The United States Attorney's Office, in accordance with the provisions of28 U.S.C. §636(c) and Fed. R. Civ. P. 73, voluntarily consents to have a United States Magistrate Judge conduct any and all further proceedings for all social security disability cases filed in the Eastern District of Arkansas. Our consent applies to all orders disposing of these matters, the entry of final judgements, and post-judgement proceedings. Once all other parties have consented, the clerk's office has our blanket authorization to process the consent form without the signature of a representative attorney for the United States. For record keeping purposes, we ask that a notification be placed on each consent form referencing this letter. Ms. Stacey E. McCord for the U.S. Attorney's Office is available to answer any questions your staff may have concerning our blanket authorization in social security disability cases. Cod}.Jliland United States Attorney

SUMMONS Returned Executed by Karen L Frank. Social Security Administration served on 11/24/2017.

Case 3:17-cv-00292-JJV Document 5 Filed 12/04/17 Page 1 of 6 COMMISSIONER OF DEEDS Case 3:17-cv-00292-JJV Document 5 Filed 12/04/17 Page 2 of 6 Date: November 28, 2017 moira Deutch: The following is in response to your November 28, 2017 request for delivery information on your Certified Mail™/RRE item number 9314869904300040864567. The delivery record shows that this item was delivered on November 27, 2017 at 6:56 am in LITTLE ROCK, AR 72202. 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 Case 3:17-cv-00292-JJV Document 5 Filed 12/04/17 Page 3 of 6 COMMISSIONER OF DEEDS Case 3:17-cv-00292-JJV Document 5 Filed 12/04/17 Page 4 of 6 Date: November 28, 2017 moira Deutch: The following is in response to your November 28, 2017 request for delivery information on your Certified Mail™/RRE item number 9314869904300040864611. The delivery record shows that this item was delivered on November 24, 2017 at 12:10 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 Case 3:17-cv-00292-JJV Document 5 Filed 12/04/17 Page 5 of 6 COMMISSIONER OF DEEDS Case 3:17-cv-00292-JJV Document 5 Filed 12/04/17 Page 6 of 6 Date: November 27, 2017 moira Deutch: The following is in response to your November 27, 2017 request for delivery information on your Certified Mail™/RRE item number 9314869904300040864703. The delivery record shows that this item was delivered on November 27, 2017 at 4:51 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

NOTICE of Appearance by Gabriel Michael Bono on behalf of Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION KAREN L. FRANK, § Plaintiff, § § v. § Civ. No. 3:17-cv-00292-JJV § NANCY A. BERRYHILL, § Acting Commissioner of Social Security, § Defendant. § NOTICE OF APPEARANCE Defendant, the Acting Commissioner of the Social Security Administration, by and through her attorney, the United States Attorney, Eastern District of Arkansas, hereby files this Notice of Appearance. Special Assistant United States Attorney, Gabriel M. Bono, appears on behalf of the Defendant. I am certified to practice before this Court and am registered in the Court's Electronic Case Filing System. Respectfully submitted, CODY HILAND United States Attorney Eastern District of Arkansas STACEY McCORD Assistant U.S. Attorney Eastern District of Arkansas TRACI B. DAVIS Acting Regional Chief Counsel Social Security Administration /s/ Gabriel Bono Gabriel M. Bono Special Assistant United States Attorney Eastern District of Arkansas Michigan Bar No. P71570 Social Security Administration Office of the General Counsel 1301 Young Street, Suite A702 Dallas, TX 75202-5433 Phone: (214) 767-8393 Fax: (214) 767-4117 gabriel.bono@ssa.gov CERTIFICATE OF SERVICE I hereby certify that on December 22, 2017, I electronically transmitted the attached document to the Clerk of the Court using the ECF's system for filing and transmittal to Plaintiff's attorney, Howard D. Olinsky, an ECF registrant. /s/ Gabriel Bono Gabriel M. Bono Special Assistant United States Attorney 2

MOTION to Stay further proceedings by Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION FRANK L. KAREN § Plaintiff, § § v. § Civ. No. 3:17-cv-00292-JJV § NANCY A. BERRYHILL, § Acting Commissioner of Social Security, § Defendant. § MOTION FOR A STAY IN LIGHT OF UNITED STATES GOVERNMENT CESSATION The defendant moves for a stay for the proceedings in this case. 1. At the end of the day on January 19, 2018, funding for the Department of Justice expired and appropriations to the Department lapsed. The same is true for most Executive agencies, including the federal defendant Social Security Administration (SSA). It is not clear when funding will be restored by Congress. 2. Absent an appropriation, Department of Justice attorneys and employees of the federal defendant are prohibited from working, even on a voluntary basis, "except for emergencies involving the safety of human life or the protection of property." 31 U.S.C. § 1342. 3. Undersigned counsel requests a stay of the case until Congress has restored appropriations to the Department and SSA. 4. If this motion for a stay is granted, undersigned counsel will notify the Court as soon as Congress has appropriated funds for the Department. The Government requests that, at that point, all current deadlines for the parties be extended commensurate with the duration of the lapse in appropriations. 5. Counsel for Defendant sought concurrence in this instant motion on January 22, 2018. Plaintiff's counsel objected. Accordingly, this motion is filed as opposed. Although greatly regretting any disruption caused to the Court and the other litigants, the Government moves for a stay of this case until Department of Justice and SSA employees are permitted to resume their usual civil litigation functions. Respectfully submitted, CODY HILAND United States Attorney Eastern District of Arkansas STACEY McCORD Assistant U.S. Attorney Eastern District of Arkansas TRACI B. DAVIS Acting Regional Chief Counsel Social Security Administration /s/ Gabriel Bono Gabriel M. Bono Special Assistant United States Attorney Eastern District of Arkansas Michigan Bar No. P71570 Social Security Administration Office of the General Counsel 1301 Young Street, Suite A702 Dallas, TX 75202-5433 Phone: (214) 767-8393 Fax: (214) 767-4117 gabriel.bono@ssa.gov CERTIFICATE OF SERVICE I hereby certify that on January 22, 2018, I electronically transmitted the attached document to the Clerk of the Court using the ECF's system for filing and transmittal to Plaintiff's attorney, Howard D. Olinsky, an ECF registrant. /s/ Gabriel Bono Gabriel M. Bono Special Assistant United States Attorney

Unopposed MOTION to Lift Stay by Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION KAREN L. FRANK § Plaintiff, § § v. § Civ. No. 3:17-cv-00292-JJV § NANCY A. BERRYHILL, § Acting Commissioner of Social Security, § Defendant. § MOTION TO RESUME PROCEEDINGS AND RESTORE PREVIOUS DEADLINES Defendant, Acting Commissioner of the Social Security Administration, respectfully moves to resume proceedings and restore previous deadlines. 1. At the end of the day on January 19, 2018, funding for the Department of Justice expired and appropriations to the Department and the Social Security Administration (SSA) lapsed. 2. The Commissioner therefore requested a stay of further proceedings until Congress restored appropriations to the Department and SSA. See Motion, Docket #7. 3. The Court stayed the case. See Order, Docket #8. 4. Funding has been restored to SSA and operations have resumed. 5. Counsel for Defendant contacted Plaintiff's counsel on January 24, 2018. There is no objection to this instant motion. Therefore, the Commissioner respectfully requests to restore the prior deadlines with the Commissioner's Answer due January 29, 2018. Respectfully submitted, CODY HILAND United States Attorney Eastern District of Arkansas STACEY McCORD Assistant U.S. Attorney Eastern District of Arkansas TRACI B. DAVIS Acting Regional Chief Counsel Social Security Administration /s/ Gabriel Bono Gabriel M. Bono Special Assistant United States Attorney Eastern District of Arkansas Michigan Bar No. P71570 Social Security Administration Office of the General Counsel 1301 Young Street, Suite A702 Dallas, TX 75202-5433 Phone: (214) 767-8393 Fax: (214) 767-4117 gabriel.bono@ssa.gov CERTIFICATE OF SERVICE I hereby certify that on January 24, 2018, I electronically transmitted the attached document to the Clerk of the Court using the ECF's system for filing and transmittal to Plaintiff's attorney, Howard D. Olinsky, an ECF registrant. /s/ Gabriel Bono Gabriel M. Bono Special Assistant United States Attorney 2

ANSWER to {{2}} Complaint by Social Security Administration.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION KAREN L. FRANK, § Plaintiff, § § v. § Civil Action No. 3:17-CV-00292-JJV § NANCY A. BERRYHILL, § ACTING COMMISSIONER OF § SOCIAL SECURITY, § Defendant. § § DEFENDANT'S ANSWER Defendant, Nancy A. Berryhill, Acting Commissioner (Commissioner) of Social Security, through J. Cody Hiland, United States Attorney for the Eastern District of Arkansas, and her designated attorney-in-charge, Gabriel M. Bono, Special Assistant United States Attorney, files this Answer to Plaintiff's Complaint. The Court has exclusive jurisdiction in this matter under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Defendant pleads as follows: 1. Defendant admits the allegation contained in paragraph 1 of Plaintiff's Complaint. 2. Defendant admits the allegation contained in paragraph 2 of Plaintiff's Complaint. 3. Defendant admits the allegation contained in paragraph 3 of Plaintiff's Complaint. 4. Defendant admits the allegation contained in paragraph 4 of Plaintiff's Complaint. 5. Defendant admits the allegation contained in paragraph 5 of Plaintiff's Complaint. 6. Paragraph 6 of Plaintiff's Complaint states a legal conclusion to which no responsive pleading is required. To the extent that the Court deems a responsive pleading is necessary, Defendant denies the same. 7. Paragraph 7 of Plaintiff's Complaint states a legal conclusion to which no responsive pleading is required. To the extent that the Court deems a responsive pleading is necessary, Defendant denies the same. 8. Paragraph 8 of Plaintiff's Complaint states a legal conclusion to which no responsive pleading is required. To the extent that the Court deems a responsive pleading is necessary, Defendant denies the same. With respect to the last paragraphs of Plaintiff's Complaint, 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 relief sought. In response to Plaintiff's Prayer request that this case be reversed in Plaintiff's favor, or remanded for a further hearing, Defendant states that Plaintiff has not shown that reversal or remand is warranted under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). With respect to Plaintiff's Prayer request for attorney fees 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. Defendant denies all other allegations of Plaintiff's Complaint not specifically admitted. 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. Respectfully submitted, CODY HILAND United States Attorney Eastern District of Arkansas STACEY McCORD Assistant United States Attorney Eastern District of Arkansas TRACI B. DAVIS Acting Regional Chief Counsel Social Security Administration /s/ Gabriel Bono GABRIEL M. BONO Special Assistant United States Attorney Attorney-in-Charge Michigan Bar No. P71570 Office of the General Counsel 1301 Young Street, Suite A702 Dallas, Texas 75202 (214) 767-8393 (214) 767-4117 Fax Gabriel.Bono@ssa.gov CERTIFICATE OF SERVICE I hereby certify that on January 26, 2018, I electronically transmitted the attached document to the Clerk of the Court using the ECF's system for filing and transmittal of the Answer to Plaintiff's Attorneys, Howard D. Olinsky, of the Olinsky Law Group, ECF registrants. /s/ Gabriel Bono GABRIEL M. BONO Special Assistant United States Attorney

NOTICE by Social Security Administration re {{11}} Answer to Complaint Notice of Conventional Filing of the Administrative Transcript

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION KAREN L. FRANK, § Plaintiff, § § v. § Civil Action No. 3:17-CV-00292-JJV § NANCY A. BERRYHILL, § ACTING COMMISSIONER OF § SOCIAL SECURITY, § Defendant. § DEFENDANT'S NOTICE OF CONVENTIONAL FILING OF THE ADMINISTRATIVE TRANSCRIPT Defendant, Nancy A. Berryhill, Acting Commissioner of Social Security, through J. Cody Hiland, United States Attorney for the Eastern District of Arkansas, hereby notices the court that the United States Attorney's Office will file the certified administrative record of the administrative proceeding in this case in accordance with section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), and serve a copy of the transcript on Plaintiff's attorneys. Respectfully submitted, CODY HILAND United States Attorney Eastern District of Arkansas STACEY McCORD Assistant United States Attorney Eastern District of Arkansas TRACI B. DAVIS Acting Regional Chief Counsel Social Security Administration /s/ Gabriel Bono GABRIEL M. BONO Special Assistant United States Attorney Attorney-in-Charge Michigan Bar No. P71570 Office of the General Counsel 1301 Young Street, Suite A702 Dallas, Texas 75202 (214) 767-8393 (214) 767-4117 Fax Gabriel.Bono@ssa.gov CERTIFICATE OF SERVICE I hereby certify that on January 26, 2018, I electronically transmitted the attached document to the Clerk of the Court using the ECF's system for filing the transmittal of a Notice of Electronic Filing to Plaintiff's attorneys, Howard D. Olinsky, of the Olinsky Law Group, ECF registrants. /s/ Gabriel Bono GABRIEL M. BONO Special Assistant United States Attorney

ORDER: Plaintiff Brief due by 3/9/2018. Defendant must file a brief within 42 days of the date Plaintiff's brief is served. Signed by Magistrate Judge Joe J. Volpe on 1/26/2018.

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION KAREN L. FRANK, * * Plaintiff, * v. * * No. 3:17cv00292-JJV NANCY A. BERRYHILL, Acting * Commissioner, Social Security * Administration, * * Defendant. * ORDER Defendant has filed an Answer and transcript of the administrative proceedings. Plaintiff must file a brief on or before Friday, March 9, 2018. The brief must identify specific points for appeal. Plaintiff=s failure to file a timely brief may result in dismissal for failure to prosecute. Defendant must file a brief within forty-two (42) days of the date Plaintiff=s brief is served. Defendant=s brief must respond to the issues raised in Plaintiff=s brief and may include additional relevant issues. Each party must serve a copy of their brief on the opposing party the day of filing and file a certificate of service with the brief. Briefs should provide a history of the administrative proceedings and statement of facts, and identify specific points for appeal together with relevant law and argument. They should include citations of legal authority in support of arguments made. These citations should include specific page references within the case where the cited point is discussed. Briefs should also include citations to referenced portions of the transcript supporting the party=s arguments. Additionally, if either party believes oral argument would be helpful to the Court in deciding this matter, counsel may request argument. Counsel shall contact my courtroom deputy by telephone, 501.604.5194 or email chambers at jjvchambers@ared.uscourts.gov at the time of 1 filing your brief. At counsel's choosing, oral argument may be in person or by teleconference. The scope of the argument is limited solely to the administrative record and additional evidence will not be admitted through oral argument. IT IS SO ORDERED this 26th day of January, 2018. ____________________________________ JOE J. VOLPE UNITED STATES MAGISTRATE JUDGE 2

PLAINTIFF'S BRIEF filed by Karen L Frank. Defendant Brief due by 4/20/2018

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION KAREN L. FRANK,)) Plaintiff,)) v.) Civil Action No. 3:17-cv-00292-JJV) NANCY A. BERRYHILL) ACTING COMMISSIONER OF) SOCIAL SECURITY,)) Defendant.) PLAINTIFF'S APPEAL BRIEF I. STATEMENT OF ISSUES 1. The ALJ failed to develop by not re-contacting Plaintiff's treating physician/consultative examiner for clarification regarding the medical source statement he provided. 2. The Step 4 determination is not supported by substantial evidence. II. STATEMENT OF THE CASE A. Procedural Status On January 28, 2015, Karen L. Frank ("Plaintiff") filed an application for Title II disability insurance benefits. Administrative Transcript ("T") at 17, 166. On January 22, 2015, Plaintiff filed an application for Title XVI supplemental security income. T 17, 171. In both applications, Plaintiff alleged disability beginning April 4, 2014. T 166, 171. Plaintiff's applications were initially denied on April 24, 2015, and upon reconsideration on July 13, 2015. T 99, 102, 107, 109. Plaintiff requested a hearing by Administrative Law Judge ("ALJ"). T 112. On August 10, 2016, a hearing was held in Jonesboro Arkansas, before Administrative Law Judge ("ALJ") David J. Manley. T 31-52. On September 28. 2016, the ALJ issued an 1 unfavorable decision, finding Plaintiff not disabled from April 4, 2014, through the date of the decision. T 14-26. On August 29, 2017, the Appeals Council denied review, leaving the ALJ's decision as the final agency decision. T 1. On August 29, 2017, Plaintiff filed this action seeking judicial review of the ALJ's decision. Docket No. 2. This Court has jurisdiction. 42 U.S.C. §§ 405(g), 1383(c)(3). B. The ALJ's Decision Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2019. T 19. At Step 1, the ALJ found that Plaintiff has not engaged in substantial gainful activity since the alleged date of onset. T 19. At Step 2, the ALJ found severe impairments of degenerative disc disease, lumbar facet arthropathy, osteoarthritis, and diabetes mellitus. T 19. At Step 3, the ALJ found that Plaintiff does not have an impairment or combination or impairments that meets or equals a listing. T 21. The ALJ found that Plaintiff has the residual functional capacity ("RFC") to perform the full range of light work. T 22. At Step 4, the ALJ found that Plaintiff is capable of performing past relevant work as a fast food worker (DOT#311.472-010). T 25. C. Plaintiff's Age, Education, and Work Experience Plaintiff, born in 1963, was 53 years of age on the date of the hearing. T 35-36. Plaintiff has a ninth grade education and is able to communicate in English. T 36. Plaintiff has past relevant work as a fast food cook (DOT#313.374-010), fast food worker (DOT#311.472-010), and caregiver (DOT#354.377-014). T 25. D. Relevant Medical Evidence of Record On August 4, 2014, lumbar MRI showed moderately extensive facet arthropathy at L4-5 through L5-S1. T 288-289. 2 On April 16, 2015, Dr. Roger Troxel, MD, Plaintiff's treating physician, conducted a consultative examination at the request of the Social Security Administration. T 302-307. Dr. Troxel noted a significant past surgical history related to Plaintiff's right elbow. T 303. Dr. Troxel noted that Plaintiff could walk/carry/lift half a block before being limited by dyspnea. T 304. On examination, Dr. Troxel noted decreased range of motion in Plaintiff's knees and spine. T 305. Plaintiff was unable to tandem walk, walk on heel and toes, or squat/arise from a squatting position. T 306. Dr. Troxel opined diagnoses of lumbar spine degenerative disc disease, diabetes mellitus, and osteoarthritis. T 307. Dr. Troxel opined that Plaintiff's conditions result in a mild to moderate decrease in ability to walk, stand, lift, and carry. T 307. E. Hearing Testimony Plaintiff testified that she dropped out of school in the ninth grade. T 36. Plaintiff did not obtain her GED. T 36. Plaintiff testified that she cannot return to work at Burger King because she cannot lift that kind of weight anymore, cannot stand for long periods of time. T 42. Plaintiff testified that in her right elbow, the main bone is not connected; her little finger and ring finger are numb. T 43. Plaintiff has difficulty opening things. T 43. If sitting, Plaintiff has to get up and move around every half an hour to forty minutes. T 45. Plaintiff can stand for twenty to forty-five minutes. T 45. Plaintiff uses a grabber to pick things up from the floor. T 45. Plaintiff testified that she could carry five to six pounds. T 46. III. ARGUMENT Pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), this Court may review the record to determine whether the Commissioner applied proper legal standards and whether substantial evidence supports the final agency decision to deny Plaintiff benefits. Substantial evidence means more than a scintilla. "It means such relevant evidence as a reasonable mind might accept 3 as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 400 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 229 (1938)). Substantial evidence is relevant evidence which a reasonable mind would accept as adequate to support the Commissioner's conclusion. In determining whether the existing evidence is substantial, the court must consider evidence that detracts from the Commissioner's decision as well as evidence that supports it. Gray v. Apfel, 192 F.3d 799, 802 (8th Cir. 1999). 1. The ALJ failed to develop by not re-contacting Plaintiff's treating physician/consultative examiner for clarification regarding the medical source statement he provided. In Combs v. Berryhill, the Eighth Circuit stated that ""[w]ell-settled precedent confirms that the ALJ bears a responsibility to develop the record fairly and fully, independent of the claimant's burden to press his case." Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (quoting Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004)). We recognize that an ALJ does not "have to seek additional clarifying statements from a treating physician unless a crucial issue is undeveloped." Vossen, 612 F.3d at 1016 (emphasis omitted) (quoting Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)); see also Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (duty to seek clarification from treating physician "arises only if a crucial issue is undeveloped"). But "an ALJ must not substitute his opinions for those of the physician." Finch v. Astrue, 547 F.3d 933, 938 (8th Cir. 2008) (quoting Ness v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990)); see also Pate–Fires v. Astrue, 564 F.3d 935, 946–47 (8th Cir. 2009) (noting that ALJs may not "play doctor")." Combs v. Berryhill, 878 F.3d 642, 646–47 (8th Cir. 2017). In Combs, the Eighth Circuit held that "[b]y relying on his own interpretation of what 'no acute distress' and 'normal movement of all extremities meant' in terms of Combs' RFC, the ALJ failed to satisfy his only duty to fully and fairly develop the record." Id at 647. The Eighth 4 Circuit concluded that remand was necessary so the ALJ could conduct further inquiry as to what relevance those terms had on Combs' ability to function in the workplace. Id. Following Combs, this Court, in Fulkerson v. Berryhill, issued a Memorandum and Opinion Order penned by United States Magistrate Judge Patricia S. Harris. Fulkerson v. Berryhill, No. 3:17-CV-00065 PSH, 2018 WL 406050 (E.D. Ark. Jan. 12, 2018). The facts in Fulkerson are analogous to the facts here, but differ in that the facts in this case warrant remand since there was not sufficient evidence in the record for the ALJ to have made an informed decision. Id. at 5-6. In Fulkerson, "Dr. Troxel performed a general physical examination of Fulkerson at the request of the Commissioner. Fulkerson's complaints included increased dyspnea on exertion and a decreased ability to stand and walk. Troxel found that Fulkerson had a full range of motion in all of his extremities, save a reduced range of motion in his lumbar spine and knees. Troxel observed that Fulkerson had a normal gait and coordination, could stand/walk without assistive devices, and could walk on his heels and toes. Troxel's diagnoses included coronary artery disease, osteoarthritis, and gout. Troxel opined that Fulkerson had a mildly diminished ability to stand and walk secondary to dyspnea." Id. at 4. This Court further explained that "Troxel failed, though, to explain what he meant by the phrase "mildly diminished." Although requesting clarification from Troxel as to what he meant by the phrase would have been helpful, it was not necessary because there was sufficient information for the ALJ to have made an informed decision." Id. at 5. That sufficient information included treatment records from at least four other doctors. Id. at 1-4. Further, Dr. Troxel's role was limited to that of a one-time consultative examiner. Id. at 4. In this case, Dr. Troxel provided a similar opinion following a consultative examination, 5 summarized supra at page 3. Dr. Troxel opined that Plaintiff's conditions result in a mild to moderate decrease in ability to walk, stand, lift, and carry. T 307. However, this case differs in that Dr. Troxel was also Plaintiff's primary care physician, and sole provider of treatment. Dr. Troxel provided scant records, lacking narratives, past medical histories, or explanations for his assessments. T 280-287, 309-335. The ALJ gave partial weight to Dr. Troxel's opinion, but does not hazard a guess as to what Dr. Troxel means by that opinion statement, or explain the rejection of the opinion, aside from summarizing the normal findings in the very limited and sparsely populated records of Dr. Troxel himself. T 22-24. Dr. Troxel was the diagnosing physician, who prescribed and adjusted medication, and obtained MRI. Because Dr. Troxel is the physician in this case, the sole provider of treatment, the sole examiner of Plaintiff, his opinion is of paramount importance to Plaintiff's disability claim. Thus, the facts of this case are different than Fulkerson, and require remand so the ALJ can inquire to Dr. Troxel as to what he meant by his medical source statement. In addition to ambiguity of the opinion, the content of the general physical conducted by Dr. Troxel creates additional questions not answered by his treatment records. In the general physical, Dr. Troxel wrote that Plaintiff has a significant past surgical history of "6.3, R. Elbow." T 303. This is possibly significant due to Plaintiff's disabling complaints of difficulty using her right arm as "a bone was not connected in her elbow." T 22. The ALJ did not consider her right elbow condition as a severe impairment because a "review of the treatment records fails to show any treatment for this alleged condition." T 19. Dr. Troxel also noted that Plaintiff could walk half a block before experiencing dyspnea, and could not perform tandem walk, walk on heel and toes, or squat/arise from a squatting position. T 304, 306. Explanation of these observed limitations, and information about Plaintiff's right elbow, would provide more context for a 6 vague RFC. Further, an explanation from Dr. Troxel may be able to provide insight into Plaintiff's mental limitations, caused by medically determinable impairments of depressive disorder and generalized anxiety disorder. T 20, 310. Dr. Troxel made the diagnoses and prescribed Celexa. T 310. However, the records are scant regarding Plaintiff's mental limitations. In addition, an ambiguity in the record exists as to whether or not Plaintiff continues to take her depression medication. The ALJ found that she stopped, based on hearing testimony. T 20. Plaintiff did testify that she does not think that she is still taking Celexa. T 39. However, Plaintiff also testified she is still taking medications for emotion issues, and that her depression is better with the medication. T 43-44. Plaintiff may not have known the name of her medication. The ALJ relied on non-treating non-examining opinions to form an opinion of Plaintiff's RFC. T 25. The Eighth Circuit has found that that does not satisfy the ALJ's duty to fully and fairly develop the record; the opinions of doctors who have not examined Plaintiff ordinarily do not constitute substantial evidence on the record as a whole. Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000) citing Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir.1999). In conclusion, the ALJ failed to develop the record by not re-contacting treating physician and consultative examiner Dr. Troxel. Dr. Troxel's opinion is paramount to Plaintiff's disability claim, and other evidence is not available to properly evaluate Plaintiff's claim. The ALJ was forced to rely on either his own interpretation of Dr. Troxel's own limited records, or rely on the opinion of non-examining, non-treating state agency medical consultants. Dr. Troxel's ambiguity was bypassed in Fulkerson. That is not available here. Dr. Troxel must be forced to explain his opinions; the subsidized vagueness cannot continue at the expense and request of the Social Security Administration. 7 2. The Step 4 determination is not supported by substantial evidence. The Eighth Circuit, has held that "[t]he opinions of doctors who have not examined the claimant ordinarily do not constitute substantial evidence on the record as a whole." Nevland 204 F.3d at 858 citing Jenkins 196 F.3d at 925. In this case, in finding Plaintiff capable of light work, the ALJ gave significant weight to the opinions of non-examining state agency medical consultants. T 25. The ALJ found that their opinions were "...consistent with the record as a whole, including objective medical evidence, the claimant's physical examinations, and the claimant's course of treatment." T 25. The ALJ found Plaintiff capable of the full range of light work. T 22. Because the opinion of the treating physician, Dr. Troxel, was vague beyond usefulness, the ALJ's RFC is based on the opinions of the non-examining state agency medical consultants. Therefore, the ALJ's finding that Plaintiff is capable of light work is not supported by substantial evidence and his application of the RFC to Plaintiff's past work is not supported by substantial evidence. This case must be remanded for further development of the record. V. CONCLUSION For the foregoing reasons, it is respectfully requested that the final agency decision be vacated and that this matter remanded to the agency for de novo hearing and new decision. March 9, 2018 Respectfully submitted, /s/ Howard D. Olinsky Howard D. Olinsky, Esq. Olinsky Law Group Attorneys for Plaintiff 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Fax: (315) 701-5781 holinsky@windisability.com 8 CERTIFICATE OF SERVICE I hereby certify that on March 9, 2018, I electronically filed the foregoing with the Clerk of the District Court using the CM/ECF system, which sent notification of such filing to Gabriel M. Bono, Esq., an ECF registrant: /s/ Howard D. Olinsky Howard D. Olinsky, Esq. 9

DEFENDANT'S BRIEF filed by Social Security Administration.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION KAREN L. FRANK, § Plaintiff, § § v. § Civ. No. 3:17-cv-00292-JJV § NANCY A. BERRYHILL, § Acting Commissioner of Social Security, § Defendant. § DEFENDANT'S RESPONSE BRIEF Plaintiff brought this action pursuant to 42 U.S.C. § 405(g), for judicial review of the Acting Commissioner of Social Security's (Commissioner) final decision denying her claims for disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social Security Act (Act), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3). I. ISSUES Whether substantial evidence exists in the record to support the Commissioner's final decision that Plaintiff was not disabled within the meaning of the Act from April 4, 2014, her alleged onset date, through September 28, 2016, the date of the administrative law judge's (ALJ) unfavorable decision. II. STATEMENT OF FACTS Plaintiff alleged that she became disabled on April 4, 2014, due to "degenerative disc disease and diabetes, Type 2" (Tr. 209). She was 53 years old on September 28, 2016, the date of the ALJ's decision (Tr. 22). Plaintiff has a 9th grade education and has worked as a fast food cook, fast food worker, and caregiver (Tr. 25, 210). After the agency issued initial and reconsideration denials, an ALJ conducted a hearing on August 10, 2016, at which Plaintiff, represented by counsel, and a vocational expert testified (Tr. 31-52). On September 28, 2016, the ALJ issued his decision, finding that Plaintiff was not disabled from Plaintiff's alleged disability onset date through the date of the decision (Tr. 14-31). The ALJ found, pursuant to the sequential evaluation process, that at step one, Plaintiff had not engaged in substantial gainful activity since April 4, 2014 (Tr. 19). At step two, the ALJ determined that Plaintiff experienced the following severe impairments: degenerative disc disease, lumbar facet arthropathy, osteoarthritis, and diabetes mellitus (Tr. 19). However, the ALJ found, at step three, that these impairments did not meet or equal any of the listed impairments found at 20 C.F.R. part 404, subpart P, appendix 1 (Tr. 21-22). The ALJ next found Plaintiff's subjective complaints were not entirely credible (Tr. 19- 25). The ALJ found that Plaintiff retained the residual functional capacity (RFC) to perform a full range of light work as defined in the regulations 1 (Tr. 22). At step four, the ALJ found that Plaintiff was able to perform her past relevant work (Tr. 25). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act (Tr. 26). On August 29, 2017, the Appeals Council declined to review the ALJ's decision, which rendered the ALJ's decision the Commissioner's final decision (Tr. 1-6). On October 31, 2017, Plaintiff timely filed this action seeking judicial review of the Commissioner's decision. Due to the thoroughness of the ALJ's presentation, the Commissioner incorporates the ALJ's recitation of the case's history (Tr. 14-30). 1 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. §§ 404.1567(b), 416.967(b). 2 III. ARGUMENT Substantial Evidence Supports the Commissioner's Decision That Plaintiff Was Not Disabled from April 4, 2014, Through September 28, 2016 A. Judicial Standard Of Review The role of the Court under 42 U.S.C. § 405(g) is to determine whether there is substantial evidence in the record to support the decision of the Commissioner, and not to reweigh the evidence or try the issues de novo. Loving v. Dept. of HHS, 16 F.3d 967, 969 (8th Cir. 1994). If supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 390 (1971). Substantial evidence is more than a scintilla but less than preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. at 401. Reversal is not warranted merely because substantial evidence would have supported an opposite decision. Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995). B. Burden of Proof The claimant has the burden of proving her disability by establishing a physical or mental impairment lasting at least twelve months that prevents her from engaging in any substantial gainful activity. See 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); Ingram v. Chater, 107 F.3d 598, 601 (8th Cir. 1997). When determining whether a claimant is capable of engaging in any substantial gainful activity, the Commissioner applies the five-step sequential evaluation process. Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005). At steps one through four of the sequential evaluation process, the claimant carries the burden of proof. See id. Here, substantial evidence supports the ALJ's finding that Plaintiff was not disabled at the fourth step because she could return to her past relevant work as generally performed. 3 C. Issues Before the Court Plaintiff first argues the ALJ did not fully develop the record. See Plaintiff's Brief at 1, 4- 7. While Plaintiff's second argument is entitled, "The Step 4 Determination is not supported by substantial evidence" the substance of Plaintiff's allegation is that the ALJ's RFC is not supported by substantial evidence. See Plaintiff's Brief at 8. Accordingly, the Commissioner will show that the ALJ's RFC is supported by substantial evidence, and no further development is required. D. Substantial Evidence Supports the ALJ's RFC Assessment and Further Development is Not Required. Plaintiff argues that the opinion of her primary care physician, Dr. Roger Troxel, is so ambiguous as to warrant the ALJ to recontact him for clarification and that the ALJ's RFC is not supported by substantial evidence. See Plaintiff's Brief at 4-7. The Commissioner disagrees. Plaintiff argues specifically that that the ALJ failed to properly develop the case because the opinion and records of her treating physician were "scant," and "lacking narrative." See Plaintiff's Brief at 6. To the contrary, on April 16, 2015, and consistent with the ALJ's finding for a light RFC, Dr. Troxel opined that Plaintiff had, "mild-moderate ↓ ability to walk, stand, lift, carry" (Tr. 307). Indeed, Dr. Troxel's opinion took into consideration his own treatment of Plaintiff as well as Plaintiff's "state[ment]" that she had "↓ ability to walk, stand, lift, carry" (Tr. 303). Dr. Troxel's opinion is not only consistent with Plaintiff's own report to Dr. Troxel, but also consistent with his report of normal range of motion, but for some limitation in her knees and back (Tr. 24, 305-306). And the ALJ considered that while Dr. Troxel also reported Plaintiff was unable to walk on her heel and toes, or squat/arise from a squatting position; Dr. Troxel further observed normal sensory and motor functioning, no muscle weakness, a negative straight-leg test, normal gait, and that Plaintiff was able to perform all upper limb functions (Tr. 24, 302-307). See Moore 4 v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009) (normal range of motion, gait, and strength support light work RFC). A claimant's RFC is what she can do despite her limitations and is based upon all the relevant evidence including medical records, treating physicians' and others' observations, and the claimant's own descriptions of her limitations. See Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); 20 C.F.R. §§ 404.1545, 416.945. The ALJ is not required to rely on a particular physician's opinion when formulating a claimant's RFC, nor does the record need to have a treating or examining source opinion. See Cox v. Astrue, 495 F.3d 614, 619-20 (8th Cir. 2007) (ALJ not required to obtain or rely on a treating or examining opinion in the RFC analysis; medical evidence need only provide a sufficient basis for RFC by showing ability to function in work environment). In this case, the ALJ properly based his findings on all the relevant evidence. The objective medical evidence does not support physical limitations greater than those the ALJ included in the RFC. In August 2014, Plaintiff underwent an MRI of her lumbar spine which was interpreted to show "moderately extensive facet arthropathy L3-L4, L4-L5, and L5-S1" with "no significant spinal stenosis or evidence of foraminal narrowing" (Tr. 288-289). Objective tests showing mild to moderate conditions do not support a finding of disability. Masterson v. Barnhart, 363 F.3d 731, 738-39 (8th Cir. 2004). The RFC is also consistent with the limited treatment Plaintiff received for her reports of disabling pain. The extent of Plaintiff's treatment was limited to medication and recommended exercise (Tr. 23-25). Since October 2014, Dr. Troxel has assessed Plaintiff's condition as "stable" with just the use of medication (Tr. 23-24, 283-284, 309, 312, 315, 321, 327, 330, 333). As noted by the ALJ, she has not been referred for any surgical procedures (Tr. 23). And by August of 2014, Plaintiff reported her pain at only a five out of ten (Tr. 23, 284). It is also notable that in 5 August and October of 2014, Dr. Troxel "stressed the importance" of exercise (Tr. 283, 285). See Pelkey v. Barnhart, 433 F.3d 575, 578-579 (8th Cir. 2006) (decision to discount subjective complaints was supported by absence of any medical opinion that claimant was unable to work, and physician recommendation of exercise and medication, rather than surgery); Chamberlain v. Shalala, 47 F.3d 1489, 1495 (8th Cir. 1995) (failure to seek aggressive medical care is not suggestive of disabling pain);see also Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010) (impairments controlled by treatment or medication are not disabling). And while Plaintiff reported a near inability to perform any independent activities of daily living, her reports are simply not consistent with the objective evidence. Despite the limited objective findings and treatment discussed above, Plaintiff testified that on an average day, the extent of her activities was limited to reading, watching television, or sitting on the porch with friends (Tr. 225-234). She reported the inability to perform any household chores, cook, clean and even wrote that she needs help using the toilet and bathing (Tr. 46, 226). While she has a valid driver's license, she testified, "I just don't drive" (Tr. 39). She also notably presented to the hearing with a cane, which she admitted was not prescribed by any physician (Tr. 38). A claimant's credibility is undermined when her complaints are inconsistent with or not supported by medical findings. Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008) Moreover, Plaintiff has been diagnosed with diabetes since (at least) 2011 (Tr. 36-37). Similarly, in August of 2014, Dr. Troxel referenced comparing her images to a 2011 CT of her spine (Tr. 288). Yet, she testified that she was able to work as a home healthcare aide until her alleged onset date in 2014 (Tr. 41). 2 It is also worth noting that Plaintiff reported that she was 2 Plaintiff testified that as a home healthcare aide, she regularly helped others with their personal hygiene, assisted them to get dressed, prepared meals, did laundry, mopped, and swept (Tr. 42- 43). 6 "laid off" from her job as a home healthcare aide in April 2014 (Tr. 196, 210). Working for years with the same symptoms alleged to be disabling undermines credibility. Gowell v. Apfel, 242 F.3d 793, 798 (8th Cir. 2001). Moreover, ceasing work for reasons other than alleged disability undermines a claimant's claim that her impairments are disabling. Goff, 421 F.3d at793 (8th Cir. 2005). The opinions of the state agency reviewing physicians further support the ALJ's RFC and are consistent with Dr. Troxel's opinion. In April and July 2015, state agency reviewing physicians Rita Allbright, M.D., and Bill Payne M.D., opined that Plaintiff could perform work activity at the light exertional level (Tr. 62, 85). See Stormo v. Barnhart, 377 F.3d 801, 807-08 (8th Cir. 2004) (ALJ properly utilized evidence from state agency medical physicians to support, in part, decision that claimant's impairments were not disabling); Ostronski v. Chater, 94 F.3d 413, 417 (8th Cir. 1996) (reviewing physician's opinion can support finding that claimant is not disabled). Accordingly, the ALJ's RFC for a reduced range of light work activity is consistent with the opinions of the state agency physicians. The Eighth Circuit has long held that "while an ALJ should recontact a treating or consulting physician if a critical issue is undeveloped, the ALJ is required to order medical examinations and tests only if the medical records presented to him do not give sufficient medical evidence to determine whether the claimant is disabled." Martise v. Astrue, 641 F.3d 909, 926–27 (8th Cir. 2011) (internal citations and quotations omitted). However, as outlined above, the objective evidence is consistent with the ALJ's RFC. Furthermore, the record contains the opinion of state agency medical experts consistent with the opinion of Plaintiff's own treating physician. Accordingly, the record as a whole contains substantial evidence to support the RFC. 7 In sum, the ALJ was not required to re-contact Dr. Troxel because the record was sufficiently developed for the ALJ to make an informed decision about Plaintiff's condition during the relevant period. See Haley v. Massanari, 258 F.3d 742, 749-50 (8th Cir. 2001) (ALJ may issue a decision without obtaining additional medical evidence when other evidence in the record is adequate for the ALJ to make an informed decision). V. CONCLUSION Substantial evidence supports the ALJ's determination that Plaintiff's impairments were not disabling from April 2014, through September 2016, and the ALJ correctly applied the regulations. The Commissioner therefore urges that the Court affirm the ALJ's decision. Respectfully submitted, CODY HILAND United States Attorney Eastern District of Arkansas STACEY McCORD Assistant U.S. Attorney Eastern District of Arkansas /s/ Gabriel Bono GABRIEL BONO Special Assistant U.S. Attorney Michigan Bar #P71570 Social Security Administration Office of the General Counsel 1301 Young Street, Suite A702 Dallas, TX 75202 Phone: 214-767-8393 fax: 214-767-4117 Email: gabriel.bono@ssa.gov 8 CERTIFICATE OF SERVICE I hereby certify that on April 18, 2018, I electronically transmitted the attached document to the Clerk of the Court using the ECF System for filing, which will transmit a Notice of Electronic Filing to Plaintiff's attorney, Howard D. Olinsky, an ECF registrant. /s/ Gabriel Bono GABRIEL BONO Special Assistant U.S. Attorney 9

MEMORANDUM AND ORDER that the final decision of the Commissioner is affirmed and Plaintiff's complaint is dismissed with prejudice. Signed by Magistrate Judge Joe J. Volpe on 4/27/2018.

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION KAREN L. FRANK, * * Plaintiff, * v. * * NANCY A. BERRYHILL, Deputy * No. 3:17cv00292-JJV Commissioner for Operations, performing the * duties and functions not reserved to the * Commissioner of Social Security, * * Defendant. * MEMORANDUM AND ORDER Ms. Frank has appealed the final decision of the Commissioner of the Social Security Administration to deny her claim for supplemental security income and disability insurance benefits. The Administrative Law Judge (ALJ) concluded she had not been under a disability within the meaning of the Social Security Act, because she could perform her past relevant work - despite her impairments. (Tr. 17-26.) This review function is extremely limited. A court's function on review is to determine whether the Commissioner's decision is supported by substantial evidence on the record as a whole and to analyze whether Plaintiff was denied benefits due to legal error. Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997); see also, 42 U.S.C. § 405(g). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 257 (8th Cir. 1996). In assessing the substantiality of the evidence, courts must consider evidence that detracts from the Commissioner's decision as well as evidence that supports it; a court may not, however, reverse the Commissioner's decision merely because substantial evidence would have supported an opposite decision. Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). The history of the administrative proceedings and the statement of facts relevant to this decision are contained in the respective briefs and are not in serious dispute. Therefore, they will not be repeated in this opinion except as necessary. After careful review of the pleadings and evidence in this case, I find the Commissioner's decision is supported by substantial evidence and Plaintiff's Complaint should be DISMISSED. Plaintiff was fifty-three years old at the time of the administrative hearing. (Tr. 36.) She testified she went to the ninth grade in school. (Id.) She has past work as a fast food cook, fast food worker, and caregiver. (Tr. 25.) The ALJ1 found Ms. Frank had not engaged in substantial gainful activity since April 4, 2014 - the alleged onset date. (Tr. 19.) She has "severe" impairments in the form of "degenerative disc disease, lumbar facet arthropathy, osteoarthritis, and diabetes mellitus." (Id.) The ALJ further found Ms. Frank did not have an impairment or combination of impairments meeting or equaling an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.2 (Tr. 21- 22.) The ALJ determined Ms. Frank had the residual functional capacity to perform the full range of light work given her physical impairments. (Id.) He utilized the services of a vocational expert to determine if plaintiff could perform her past jobs. (Tr. 40, 49-51.) Based in part on the 1 The ALJ followed the required sequential analysis to determine: (1) whether the claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a severe impairment; (3) if so, whether the impairment (or combination of impairments) met or equaled a listed impairment; and (4) if not, whether the impairment (or combination of impairments) prevented the claimant from performing past relevant work; and (5) if so, whether the impairment (or combination of impairments) prevented the claimant from performing any other jobs available in significant numbers in the national economy. 20 C.F.R. §§ 416.920(a)-(g) and 404.1520(a)-(g). 2 420 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926. 2 testimony of the vocational expert, the ALJ determined Ms. Frank could perform her past work as a fast food worker. (Tr. 25.) Accordingly, the ALJ determined Ms. Frank was not disabled. (Id.) The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, making his decision the final decision of the Commissioner. (Tr. 1-3.) Plaintiff filed the instant Complaint initiating this appeal. (Doc. No. 2.) In support of her Complaint, Ms. Frank argues that the ALJ failed to develop the record by not following up with Roger L. Troxel, M.D., to clarify his medical source statement. (Doc. No. 15 at 4-7.) Plaintiff bears a heavy burden in showing the record has been inadequately developed. She must show both a failure to develop necessary evidence and unfairness or prejudice from that failure. Combs v. Astrue, 243 Fed.Appx. 200, 204 (8th Cir. 2007). Plaintiff has shown neither and I find this argument to be without merit. Ms. Frank clearly suffers from some level of pain and limitation. But after carefully considering the ALJ's opinion, the medical record, and the briefs from the respective parties, I find that the ALJ's opinion is supported by substantial evidence. Plaintiff had the burden of proving her disability. E.g., Sykes v. Bowen, 854 F.2d 284, 285 (8th Cir. 1988). Thus, she bore the responsibility of presenting the strongest case possible. Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991). Plaintiff has simply not met that burden. As the ALJ stated, "The claimant does have degenerative disc disease and lumbar spondylosis, but the conditions do not result in spinal canal stenosis or foraminal narrowing. She does not need surgery. She does not have positive straight-leg tests and her sensory and motor functioning is intact. . . She is able to walk normally." (Tr. 24.) All of this is true. (Tr. 288, 303-307, 309-335.) Ms. Frank does have some limitations. But the ALJ accounted for those in 3 concluding she could perform work activities up to and including the light exertional level. The ALJ's opinion is also supported by the conclusions of Rita Allbright, M.D., and Bill F. Payne, M.D. (Tr. 61-62, 83-85.) And while I recognize Plaintiff's argument that these doctors only reviewed the medical records and did not examine Ms. Frank, their opinions can be substantial evidence when not contradicted by other evidence of record. The ALJ carefully considered the record and made a supported determination that Plaintiff was capable of performing light work. In coming to this conclusion, the ALJ considered the medical records and the opinions from medical professionals. And in his opinion, the ALJ fairly set out the rationale for his conclusions. Plaintiff has advanced other arguments which I have considered and find are without merit. It is not the task of a court to review the evidence and make an independent decision. Neither is it to reverse the decision of the ALJ because there is evidence in the record which contradicts his findings. The test is whether there is substantial evidence on the record as a whole which supports the decision of the ALJ. E.g., Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996); Pratt v. Sullivan, 956 F.2d 830, 833 (8th Cir. 1992). I have reviewed the entire record, including the briefs, the ALJ's decision, the transcript of the hearing, and the medical and other evidence. There is ample evidence on the record as a whole that "a reasonable mind might accept as adequate to support [the] conclusion" of the ALJ in this case. Richardson v. Perales, 402 U.S. at 401; see also Reutter ex rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2004). The Commissioner's decision is not based on legal error. I am sympathetic to Ms. Frank's claims. Plaintiff's counsel has done an admirable job advocating for Ms. Frank's rights in this case. But I am simply unable to find reversible fault in the ALJ's opinion. 4 IT IS, THEREFORE, ORDERED that the final decision of the Commissioner is affirmed and Plaintiff's Complaint is dismissed with prejudice. IT IS SO ORDERED this 27th day of April, 2018. ____________________________________ JOE J. VOLPE UNITED STATES MAGISTRATE JUDGE 5

JUDGMENT in favor of Social Security Administration against Karen L Frank [17]. Signed by Magistrate Judge Joe J. Volpe on 4/27/2018.

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION KAREN L. FRANK, * * Plaintiff, * v. * * NANCY A. BERRYHILL, Deputy * No. 3:17cv00292-JJV Commissioner for Operations, performing the * duties and functions not reserved to the * Commissioner of Social Security, * * Defendant. * JUDGMENT Consistent with the Order that was entered on this day, it is CONSIDERED, ORDERED, and ADJUDGED that this case is DISMISSED with prejudice. IT IS SO ORDERED this 27th day of April, 2018. ____________________________________ JOE J. VOLPE UNITED STATES MAGISTRATE JUDGE

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Description
1
10/31/2017
MOTION for Leave to Proceed in forma pauperis by Karen L Frank.
2
10/31/2017
COMPLAINT against Social Security Administration, filed by Karen L Frank.
1
Exhibit A
2
Civil Cover Sheet)(jak
2 Attachments
3
10/31/2017
ORDER granting permission to proceed in forma pauperis 1. The Clerk will issue summons without prepayment of fees and costs or security therefore. Signed by Magistrate Judge Joe J. Volpe on 10/31/2017.
10/31/2017
Summons Issued as to Social Security Administration, U.S. Attorney and U.S. Attorney General. Forwarded to Plaintiff's counsel for service. (Text entry; no document attached.)
4
11/16/2017
CONSENT to Jurisdiction by U.S. Magistrate Judge. Case reassigned to Magistrate Judge Joe J. Volpe. Signed by Judge J. Leon Holmes on 11/16/2017.
5
12/04/2017
SUMMONS Returned Executed by Karen L Frank. Social Security Administration served on 11/24/2017.
6
12/22/2017
NOTICE of Appearance by Gabriel Michael Bono on behalf of Social Security Administration
7
01/22/2018
MOTION to Stay further proceedings by Social Security Administration
8
01/22/2018
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting Defendant's motion to stay further proceedings 7. Signed by Magistrate Judge Joe J. Volpe on 1/22/2018.
9
01/24/2018
Unopposed MOTION to Lift Stay by Social Security Administration
10
01/24/2018
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting Defendant's motion to lift stay 9. Signed by Magistrate Judge Joe J. Volpe on 1/24/2018.
11
01/26/2018
ANSWER to 2 Complaint by Social Security Administration.
12
01/26/2018
NOTICE by Social Security Administration re 11 Answer to Complaint Notice of Conventional Filing of the Administrative Transcript
13
01/26/2018
ORDER: Plaintiff Brief due by 3/9/2018. Defendant must file a brief within 42 days of the date Plaintiff's brief is served. Signed by Magistrate Judge Joe J. Volpe on 1/26/2018.
14
01/29/2018
(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) ADMINISTRATIVE TRANSCRIPT of proceedings re 11 Answer to Complaint and 12 Notice of Filing. Document received in paper and maintained in the Clerk's office. (cmn) (Documents with restricted access added as attachments on 1/29/2018 for review by Court users only.)
15
03/09/2018
PLAINTIFF'S BRIEF filed by Karen L Frank. Defendant Brief due by 4/20/2018
16
04/18/2018
DEFENDANT'S BRIEF filed by Social Security Administration.
17
04/27/2018
MEMORANDUM AND ORDER that the final decision of the Commissioner is affirmed and Plaintiff's complaint is dismissed with prejudice. Signed by Magistrate Judge Joe J. Volpe on 4/27/2018.
18
04/27/2018
JUDGMENT in favor of Social Security Administration against Karen L Frank [17]. Signed by Magistrate Judge Joe J. Volpe on 4/27/2018.
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