Jahnsen v. Colvin
Court Docket Sheet

District of Alaska

1:2016-cv-00019 (akd)

MOTION to Remand to Social Security by Michael Oivind Jahnsen.

1 2 PAUL B. EAGLIN 3 Alaska Bar No. 9304010 Attorney for Plaintiff 4 Olinsky Law Group 5 300 South State Street Syracuse, New York 13202 6 Telephone: (315) 701-5780 Fax: (315) 701-5781 7 peaglin@windisability.com 8 9 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ALASKA 10 11 Michael Oivind Jahnsen, 12 Plaintiff, 13 Case No. 1:16-CV-19-HRH vs. 14 15 PLAINTIFF’S OPENING BRIEF Nancy A. Berryhill, (SOCIAL SECURITY) 16 Acting Commissioner of Social Security, 17 18 Defendant 19 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT 20 OF A SOCIAL SECURITY APPEAL 21 I. ISSUE PRESENTED FOR REVIEW 22 1. The ALJ’s residual functional capacity finding was the product of legal error 23 and was unsupported by substantial evidence in several respects. (A) The ALJ fails to account for moderate limitations in concentration, 24 persistence and pace by reducing Plaintiff’s RFC to "simple" work, which thereby deprived the Step 5 determination of substantial evidence in support. 25 (B) The ALJ failed to provide specific and legitimate reasons supported by 26 substantial evidence for rejecting consultative examining opinion of Dr. DiGiulio. 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 1 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 1 of 21 1 II. STATEMENT OF THE CASE 2 (A) Procedural Posture & Statement of the Case 3 On September 25, 2013, Plaintiff Michael Oivind Jahnsen ("Plaintiff") applied for Title II 4 5 Social Security Disability Insurance ("SSDI") and Title XVI Supplemental Security Income 6 ("SSI"). Administrative Transcript ("T") 217, 224. Plaintiff alleged disability began on his 7 protective filing date ("AOD"). Id. Plaintiff remains insured for Title II through December 31, 8 2018 ("DLI"). T 13. Plaintiff’s applications were initially denied on February 12, 2014 by the 9 state agency based upon the assessment of a staffer and single decision maker, Sheryl Norton 10 11 ("SDM"), and state agency psychological consultant, Dr. Wandal Winn, MD. T 95, 102,107, 12 110, 117, 122. 13 Plaintiff requested a hearing, occurring on March 26, 2015, before ALJ Cecilia LaCara 14 ("ALJ"). T 32–94. On August 8, 2015, the ALJ found Plaintiff not disabled. T 11–26. On 15 October 20, 2016, the Appeals Council denied Plaintiff’s request for review, leaving the ALJ’s 16 17 decision as the final agency decision. T 1–2. Plaintiff filed this action seeking review of the 18 ALJ’s decision. Dkt. No. 1. This Court has jurisdiction. 42 U.S.C. § § 405(g), 1383(c)(3). 19 The Social Security Administration ("SSA" or "Agency") has promulgated a five-step 20 sequential evaluation process for use in making disability determinations. See 20 C.F.R. § 21 22 404.1520(a). The ALJ’s decision described the five-step process. T 12–13. 23 At Step 1, the ALJ found Plaintiff had not engaged in substantial gainful activity 24 ("SGA") since his AOD. T 13 (Finding No. 2). At Step 2, the ALJ found Plaintiff suffered from 25 severe impairments of major joint dysfunction to the right knee and right wrist, degenerative 26 joint disease ("DJD") of the lumbar spine, depression, anxiety, and obesity. Id. (Finding No. 3). 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 2 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 2 of 21 1 The ALJ found several additional impairments, including autism, to be "non-medically 2 determinable or, at best, non-severe." T 14. At Step 3, the ALJ found these impairments did not 3 meet or equal a Listing, and that Plaintiff exhibited mild restriction in the activities of daily 4 5 living ("ADLs"), mild deficits in social functioning, and moderate limitations in concentration, 6 persistence, or pace ("CPP"). T 15–16. 7 The ALJ’s residual functional capacity ("RFC") finding determined Plaintiff could 8 engage in "light work," including the following limitations, 9 frequently stoop, kneel, crouch, crawl, climb ramps or stairs, and engage in fine or 10 gross manipulation with the right upper extremity; can occasionally interact with 11 the general public and climb ladders, ropes, or scaffolds; should avoid moderate exposure to extreme cold and concentrated exposure to excessive vibration; and 12 should only work in a low-stress job, defined as consisting of only occasional decision making or changes in the work setting. 13 14 T 17 (Finding No. 5). At Step 4, the ALJ relied upon vocational expert ("VE") testimony to find 15 Plaintiff could not return to past work. T 25 (Finding No. 6). The ALJ, again relying upon VE 16 testimony, thus reached Step 5 and found Plaintiff could engage in other work as a small parts 17 assembler or hotel housekeeper. T 26. 18 19 (B) Plaintiff’s Age, Education, and Work History 20 Plaintiff, born 1962, was 51 years old at the time of his AOD, and has a high school 21 education, having obtained his GED after dropping out of school. T 38, 48, 252, 383. Past work 22 includes employment as a home health caregiver, janitor, and restaurant supervisor. T 54–60, 23 80–81 (Plaintiff and VE testimony), T 233–36 (wage records), T 273 (work history reports). 24 25///26///27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 3 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 3 of 21 1 (C) Summary of Opinion Evidence & ALJ’s Weighing of Opinion Evidence 2 (1) Opinions from Non-Examining Sources 3 On December 23, 2013, a non-examining state agency consultant, Dr. Jay Caldwell, MD, 4 5 reviewed Plaintiff’s then available medical evidence and filed an RFC assessment ("RFCA"). T 6 399–406. Dr. Caldwell opined Plaintiff could (1) lift and carry 35 pounds occasionally and 10 7 pounds frequently, (2) stand/walk for 6 of 8 hours in a workday, (3) sit for 6 of 8 hours in a 8 workday, (4) engage in limited or "frequent" use of the right wrist, including only "frequent" 9 handling and fingering, (5) climb ladders/scaffolds frequently, kneel frequently, and crouch 10 11 frequently, and (6) avoid concentrated exposure to all environmental elements, except extreme 12 cold and vibration, from which he should avoid even moderate exposure. Id. The ALJ accorded 13 "significant weight" to the opinion of Dr. Caldwell. T 22. 14 On February 5, 2014, the SDM, an Agency staffer with no medical background, reviewed 15 then available medical records and issued a physical RFCA that Plaintiff could engage in light 16 17 work, including the following limitations: (1) lift and carry up to 25 pounds occasionally and 10 18 pounds frequently, (2) stand/walk for 6 of 8 hours in a workday, (3) sit for 6 of 8 hours in a 19 workday, (4) "frequent" use of the right upper extremity (due to wrist complaints), (5) frequent 20 climbing of ladders/ropes/scaffolds, stooping, crouching, but otherwise unlimited in postural 21 22 forms, (6) limited handling (i.e. "frequent") and fingering on the right (again due to wrist 23 complaints), and (7) avoid concentrated exposure to all environmental elements, except extreme 24 cold and vibration, from which he should avoid even moderate exposure. T 118–20. The ALJ 25 (correctly) does not accord weight to the opinion of the SDM. T 11–26. 26 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 4 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 4 of 21 1 On February 12, 2014, non-examining state agency psychological consultant ("SAPC") 2 Dr. Wandal Winn, MD, reviewed Plaintiff’s then submitted medical records and filed a 3 psychiatric review technique ("PRT") and mental RFCA. T 99–02, 105–07, 114–17, 120–22. 4 5 In the PRT, Dr. Winn determined Plaintiff suffered from severe fracture of the upper extremity, 6 affective disorders, and alcohol, substance addiction disorders. Id. Dr. Winn found mild 7 restriction in ADLs and social functioning, but moderate limitation in CPP. Id. In his mental 8 RFCA, Dr. Winn opined that Plaintiff exhibited 3 moderate limitations in CPP, including, but not 9 limited to, completing a normal work day/week without interruptions from his symptoms and 10 11 performing at a consistent pace without an unreasonable number and length of rest periods. Id. 12 In his narrative, Dr. Winn explained "[CPP] moderately decreased by depressive symptoms." T 13 106, 121. The ALJ explained that he accorded "significant weight" to Dr. Winn’s opinions, 14 which were "consistent" with the record and the opinion of Dr. Kesselring, and that he 15 accommodated Plaintiff’s CPP deficits by "limiting the claimant to simple work in a low stress 16 17 setting with only occasional interaction with the public." T 22. 18 (2) Opinions from Examining Sources 19 On December 3, 2013, Plaintiff underwent psychological consultative examination 20 ("CE") conducted by state agency consultant Dr. John Kesselring, PhD. T 382–87. Dr. 21 22 Kesselring reviewed no medical records prior to his exam. T 382. He recorded complaints of 23 physical and mental impairments and symptoms, including depression, anxiety, social isolation, 24 feeling "panicky," paranoia of "being watched" in public or others "listening in" on private 25 phone calls, and "transient hallucinatory experiences." T 382–84. Plaintiff’s forthright 26 discussion included his history of associating with a "rough crowd," including drug dealers and 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 5 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 5 of 21 1 using illicit substances, eventually serving a 20-year sentence for selling those substances. T 2 382–83. Dr. Kesselring diagnosed major depressive disorder (moderate), alcohol dependence in 3 early remission, and delusional disorder (persecutory type), and noted Plaintiff’s paranoia limited 4 5 him as follows, 6 it appears that thoughts and worries associated with his perceptions frequently consumed much of his attention. His thinking appears to have paranoid 7 characteristics and he may experience mild transient delusional thinking. 8 However, in the context of the current evaluation I cannot make a definitive diagnosis. 9... 10 11 His psychological problems appear to interfere with his functioning in some ways, by reducing his energy, motivation, and desire to be around people, for example. 12 These do not appear to significantly interfere with his ability to work; in fact, the loss of employment is probably a contributing factor to his depression. 13 14 T 385–86. The ALJ accorded "significant weight" to Dr. Kesselring’s opinion. T 21. 15 On December 12, 2013, Plaintiff underwent a physical CE conducted by state agency 16 consultant, Dr. Ronald Christensen, MD. T 388–98. Dr. Christensen reviewed no medical 17 records prior to his exam. T 389. He recorded Plaintiff’s complaints of symptoms ranging from 18 19 right testicular pain, to wrist and knee pain following motor vehicle accidents, to chronic lower 20 back pain. Id. Upon examination, Dr. Christensen noted the following abnormalities: right and 21 left inguinal bulge (i.e. possible hernia in the abdomen), diminished range of motion in the right 22 (dominant) wrist, dorsolumbar spine and shoulders, tenderness to palpation throughout the 23 lumbosacral spine, and laxity in the right knee. T 388, 391. Dr. Christensen noted that imaging 24 25 taken the same day of the right wrist, right knee, and lumbosacral spine (T 394–97) revealed 26 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 6 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 6 of 21 1 some ligament disruption in the right wrist and mild degenerative changes in the knee and spine. 2 T 392. Dr. Christensen opined 3 He seems to have no difficulty in sitting or standing. He can move about without 4 difficulty. His gait is non antalgic. He does appear capable of doing at least light 5 lifting and carrying. He has no dexterity issues in his hands other than some range of motion deficit in his right wrist. He has no problems speaking or seeing and no 6 obvious impairment to travel. 7 T 392. The ALJ accorded "significant weight" to Dr. Christensen’s opinion. T 22. 8 On August 16, 2014, Plaintiff underwent neuropsychological CE conducted by Dr. Diane 9 DiGiulio, PhD. T 484–91. Dr. DiGiulio reviewed Plaintiff’s medical records. T 485. See also 10 11 T 76 (provided with "all the record[s]"). Her report includes a history of Plaintiff’s injuries and 12 current medications, along with a forthright discussion of Plaintiff’s substance abuse history. T 13 484. Dr. DiGuilio indicates that Plaintiff exhibited a flat, atypical affect with a history of social 14 avoidance and isolation consistent with "autism spectrum" disorder. T 485. Plaintiff expressed 15 obsessive and ritualistic behaviors such as organizing media alphabetically, becoming upset 16 17 when others rearrange his belongings, and the need to repeat activities (such as triple checking 18 food in the refrigerator). Id. 19 Dr. DiGuilio performed a battery of separate tests of functioning. T 486–89. Plaintiff’s 20 IQ test (WAIS-IV) was normal, with some scores on the high average range. T 485–86. He also 21 22 gave an achievement test (WRAT4) which yielded average results. T 486. He conducted a 23 memory test (WMD-IV) with results in the "extremely low" range (1st percentile) for visual 24 memory and in the "borderline" range (5th percentile) for immediate memory, leading Dr. 25 DiGuilio to opine that his results "suggest acquired memory loss." Id. Plaintiff scored in the 26 low average range on an assessment of word finding difficulty (Boston Naming Test), and in the 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 7 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 7 of 21 1 normal or average range on a measure of his attention, concentration, and ability to inhibit 2 impulsive responses (Gordon diagnostic Vigilance Task). T 488. On a higher level cognitive 3 assessment (Delis-Kaplan Executive Function System or D-KEFS), Plaintiff demonstrated more 4 5 borderline, low average, and extremely low (1st percentile) results, revealing "deficits in 6 executive functioning affecting cognitive flexibility and cognitive generativity" with a "difficulty 7 with aspects of conceptual reasoning and he has a marked tendency to be concrete in his 8 thinking." T 488. Plaintiff underwent additional executive functioning tests, with one test 9 (Wisconsin Card Sorting) yielding "Extremely Low range, below the first percentile" in the 10 11 "ability to discern the correct solutions to the task. T 489. Scores on inventory for depression, 12 anxiety, and hopelessness yielded scores in the "severe" range for anxiety and depressive 13 symptoms, revealed pessimistic thoughts, which accompanied his endorsement of suicidal 14 ideation without intent. Id. 15 The final test administered was the Minnesota Multiphasic Personality lnventory-2 16 17 Restructured Format (MMPI-2 RF), 18 Validity scales indicated an invalid profile secondary to his endorsement of a high 19 number of unusual responses (F-r =120; Fp-r > 99) and responses associated with psychopathology. This response set is not at all uncommon in individuals who are 20 on the autistic spectrum and experiencing psychiatric symptoms. Mr. Jahnsen has a long standing history of emotional, interpersonal and behavioral dysfunction 21 that is reflected in his pattern of endorsement and he is currently endorsing a 22 significant number of somatic and cognitive symptoms. Although his MMPl-RF profile is considered statistically invalid, it is this writer’s opinion that it is an 23 accurate reflection of his inner life and behavioral functioning which is significantly dominated by his autism. 24 25 T 489. Dr. DiGuilio diagnosed autism spectrum disorder, mild neurocognitive disorder due to 26 alcohol use disorder, panic disorder, generalized anxiety disorder, cannabis and tobacco use 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 8 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 8 of 21 1 disorders (mild). T 490. Dr. DiGuilio expected not to see any "substantial improvement" in 2 Plaintiff’s autism, even with medication or "psychopharmacological intervention," because of 3 the ingrained nature of his "long standing" symptoms "inherent to his way of thinking and 4 5 perceiving the world." Id. Dr. DiGuilio felt that his alcohol remission presented a "window of 6 opportunity" to treat Plaintiff’s depression and anxiety, with psychotropic antidepressants. Id. 7 Dr. DiGiulio noted Plaintiff’s sustained remission from methamphetamine use for 10 years, yet 8 with "infrequent" cannabis use. Id. He explained this use led to the diagnosis of mild 9 neurocognitive disorder, and that executive deficits are commonly observed in autism patients 10 11 ("and may not substantially improve"). T 490–91. He discouraged cannabis use due to its 12 adverse impact upon anxiety symptoms. T 491. Dr. DiGiulio concluded, 13 do not see him as a viable candidate for competitive employment, even with 14 vocational supports in place. He did not have the benefit of early identification and treatment in childhood and/or adolescence. His difficulties are pervasive and 15 extend into his everyday activities limiting his ability to function effectively. Efforts to navigate him into vocational training would most likely be detrimental 16 to his state of mental health and would very likely lead to a relapse in his recovery 17 from alcohol. He will need hands-on assistance in applying for Medicaid and in making a re-application for social security benefits. 18 19 Id. The ALJ accorded "little weight" to Dr. DiGiulio’s opinion. T 22–23. 20 (D) Testimony Regarding Plaintiff’s Ability to Work 21 (1) Plaintiff’s Testimony 22 Plaintiff testified he suffers from paranoia, depression, stomach pain (i.e. a hernia), 23 prostate and bladder issues (stemming from his history of alcohol use), and pain in his right 24 25 wrist, lower back, and knees. T 39–40. He chose his AOD due to pain he felt from his hernia 26 while lifting another person into a bathtub. T 60. He has not used alcohol in roughly 18 months 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 9 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 9 of 21 1 preceding his hearing, or since November 2013. T 47, 63. A recent CAT scan revealed an 2 enlarged prostate, and his doctors have told him to consult a surgeon regarding his hernia, but he 3 has not done so. T 43. He takes psychotropic antidepressants and NSAIDs for pain and 4 5 psychiatric symptoms. T 44, 53. He has auditory hallucinations (i.e. hears voices). T 49. He 6 does not want antidepressants or counseling, citing a lack of trust issues as his reason for not 7 pursuing treatment. T 45. 8 As for his ADLs and limitations from his impairments, Plaintiff can walk 1 hour at a 9 time and for 10 minutes before requiring rest. T 51–52. He can lift 20 pounds. T 52. Plaintiff 10 11 lives alone, and spends his days resting, watching television, or helping his friend, a neighbor. T 12 39. He helps a friend two hours per day by cooking, washing laundry, making his bed, or 13 helping him bathe, but denied any "heavy" cleaning or lifting. T 45–46. He doesn’t do the work 14 "all at once" and instead spreads out the 2 hours of assistance to his friend throughout the day, 15 allowing him to lay down due to his hernia and other pain. T 53. Knee pain prevents him from 16 17 cleaning his bathtub or stove. T 40. He shops for himself. T 46. He lives on $30/day earned 18 from helping his friend and public assistance, including Section 8 housing, but lacked medical 19 insurance for treatment for some impairments. T 50–51, 61, 62–63. 20 (2) Testimony from Third Party Witnesses 21 22 On November 8, 2013, Plaintiff’s friend of more than thirty years, Mr. Albert Dowd, 23 provided a third party function report regarding his observations of Plaintiff’s functioning. T 24 264–72. Mr. Dowd reported that Plaintiff now spends most of his time in his apartment and has 25 become a "home body," appears tired, prepares simple food for himself such as frozen meals, 26 washes his own laundry, shops for himself, pays his own bills. T 264–68. Mr. Dowd further 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 10 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 10 of 21 1 stated that Plaintiff’s impairments cause limitation in lifting, squatting, bending, walking 2 (requiring 10-minute breaks when walking), kneeling, and climbing stairs. T 269. 3 (3) Vocational Expert Testimony 4 5 Plaintiff presented his own vocational expert ("VE"), Mr. Mike Head, who previously 6 testified before SSA hearings for many years. T 322–23. Mr. Head reviewed Plaintiff’s 7 medical records prior to the hearing, including ordering and reviewing the opinion of Dr. 8 DiGiulio. T 64–65, 75. When asked if he had formulated an opinion regarding Plaintiff’s ability 9 to maintain employment, Mr. Head testified that he "didn’t think" Plaintiff could maintain 10 11 "competitive employment based on the report of... Dr. DiGiulio." T 65. During voir dire by 12 the ALJ, Mr. Head testified that he also based his opinion upon his experiences, and the statutes 13 and regulations provided in the "DDR manual." T 66. Mr. Head stated that he understood the 14 ALJ’s standards for disability under federal statutes and regulations. Id. The ALJ required 15 counsel to "lay a foundation" for Mr. Head’s opinion. T 67. He explained his review of the 16 17 evidence and that he had testified as a VE for the Agency for "24 years" in Atlanta but that he 18 now works with clients like Plaintiff in vocational rehabilitation. T 68, 69. Mr. Head indicated 19 that he relied upon Dr. DiGiulio’s diagnosis of autism and the "inability [of Plaintiff] to be 20 around people. He has obsessions with the way he does things in his house. He washes 21 22 frequently. He has problems with contact with others." T 70. The ALJ pressed Plaintiff for 23 further details and Mr. Head testified although he was "not a medical expert" it was his 24 understanding that autism is something one possesses upon being "born." T 71. The ALJ 25 suggested that he had worked with this impairment (i.e. prior to his AOD) at SGA, and that he 26 therefore wanted to know what other impairments led Mr. Head to conclude Plaintiff could not 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 11 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 11 of 21 1 work. T 71–72. Mr. Head again testified that he was not a doctor, and that while Plaintiff might 2 be able to engage in "unskilled" work, that wouldn’t consider his complete profile or "all other 3 factors." T 72–73. Mr. Head stated that considering his IQ alone would mean he possessed 4 5 "more capability than doing unskilled work." T 73. When asked whether he could return to 6 work with medical treatment, Mr. Head testified that he could not, and cited Dr. DiGiulio’s 7 opinion he "would not expect a substantial improvement" in autism with treatment. T 76—77. 8 The ALJ concluded the hearing with testimony from another VE, Mr. Daniel Labrosse 9 ("VE"). T 79–88. The ALJ asked the VE to assume a hypothetical individual with Plaintiff’s 10 11 age, education, and work history, and for the first inquiry, the ALJ asked the VE to assume the 12 following limitations upon light work, 13 frequent climbing of ramps or stairs. The occasional climbing of ladders, ropes, or 14 scaffolds. Frequent stooping, kneeling, crouching, and crawling. This person is limited to frequent handling and fingering on the right side. This person is to 15 avoid moderate exposure to extreme cold, concentrated exposure to excessive vibrations. Further this person is to--excuse me. Is limited to work where there is 16 only occasional changes to the work setting. Occasional interaction with the 17 general public. 18 T 82. The ALJ and VE then conferred about the stress requirements, and the VE testified that "if 19 low stress is a key element" in the hypothetical, then he would rule out all past work. T 83–84. 20 However, the hypothetical individual could engage in other work as a small parts assembler or 21 22 hotel housekeeper with significant numbers in the national economy, but only 102 and 1,395 jobs 23 in Alaska. T 84–85. He testified that employers would not tolerate more than 2 absences per 24 month or more than 3 breaks during the day (morning, lunch, and afternoon). T 86. 25///26///27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 12 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 12 of 21 1 III. ARGUMENT 2 1. The ALJ’s residual functional capacity finding was the product of legal error 3 and was unsupported by substantial evidence in several respects. 4 (A) The ALJ fails to account for moderate limitations in concentration, 5 persistence and pace by reducing Plaintiff’s RFC to "simple" work, which thereby deprived the Step 5 determination of substantial evidence in 6 support. 7 The Ninth Circuit has clearly and firmly established that an ALJ fails to capture 8 limitations in concentration, persistence, and pace ("CPP") by limiting the claimant to 9 simple, unskilled work. Brink v. Comm'r SSA, 343 Fed. App’x 211, 212 (9th Cir. 2009). 10 11 Upon examining the Brink matter a second time, the Court ruled, 12 We previously held that the ALJ failed to include Brink’s moderate 13 impairments in concentration, persistence, or pace in the ALJ’s hypothetical to the vocational expert. Brink v. Comm'r Soc. Sec. Admin., 14 343 Fed App’x 211, 212 (9th Cir. 2009). In other words, we reasoned that 15 the ALJ failed to capture Brink’s functional limitations resulting from his moderate impairments in concentration, persistence, or pace when the 16 ALJ's hypothetical to the vocational expert stated only that Brink could 17 perform simple, repetitive tasks. See id. That decision was not clearly erroneous, no intervening change in the law has occurred, the evidence on 18 remand was not substantially different, no other changed circumstances 19 exist, and no manifest injustice would otherwise result. 20 599 Fed. Appx. 657, 658 (9th Cir. 2015) (emphasis added). The Ninth Circuit’s decision 21 in Brink distinguishes itself from prior decisions in which the medical opinion evidence 22 23 offered a narrative discussion of moderate limitations in CPP by indicating that those 24 limitations did not prevent the claimant from engaging in "simple tasks." Cf. Stubbs-25 Danielson v. Astrue, 539 F.3d 1169, 1173–74 (9th Cir. 2008). Decisions throughout the 26 27 Ninth Circuit have remanded on this basis. See, e.g., Perkins v. Colvin, 45 F. Supp.3d 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 13 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 13 of 21 1 1137, 1153—54 (Dist. Ariz. Sept. 9, 2014) (citing Brink, 343 Fed. App’x 211, 212 (9th 2 Cir. 2009)) ("[h]ere, as in Brink, the ALJ accepted Dr. Biegen’s opinion that Plaintiff had 3 4 moderate limitations in concentration, persistence, and pace, however, the RFC only 5 limited Plaintiff to jobs that required'the ability to perform simple, unskilled tasks.’") 6 (record citations omitted); Costa v. Colvin, No. No. 2:15-cv-0603 DB, 2017 U.S. Dist. 7 8 LEXIS 4312, at *9–13 (E.D. Cal. Jan. 10, 2017) (citing Brink and remanding). 9 These rulings within the Ninth Circuit are consistent with decisions from sister 10 circuits that hold "[a]n ALJ does not account'for a claimant’s limitations in 11 concentration, persistence, and pace by restricting the hypothetical question to simple, 12 13 routine tasks or unskilled work.’" See Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 14 2015) (collecting cases and acknowledging that it was joining the third, seventh and 15 eighth circuits in reversing an ALJ where evidence showed moderate limitations in 16 17 concentration, persistence, or pace, but the RFC contained no such limitation and 18 indicated only that claimant could perform simple or unskilled work). Indeed, these 19 Courts have determined the "ability to perform simple tasks differs from the ability to 20 21 stay on task. Only the latter limitation would account for a claimant’s limitation in 22 concentration, persistence, or pace." Id. at 638. The Seventh Circuit recently reaffirmed 23 these central tenets, finding reversible error where the medical evidence supported 24 25 multiple moderate limitations in CPP, and the ALJ purported to fully credit that opinion, 26 yet the ALJ failed to ask the VE about each such limitation in CPP, 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 14 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 14 of 21 1 the ALJ did not address all of these difficulties in his hypothetical question 2 to the vocational expert. Because a hypothetical posed to a VE must incorporate all of the claimant’s limitations supported by the medical 3 record—including moderate limitation in concentration, persistence, and 4 pace—we find that the ALJ committed reversible error. 5 Varga v. Colvin, 794 F.3d 809, 814 (7th Cir. 2015) (citing Yurt v. Colvin, 758 F.3d 850, 6 857 (7th Cir. 2014)). See also Stewart v. Astrue, 561 F.3d 679, 685 (7th Cir. 2009). 7 In this case, the ALJ restricts Plaintiff to working in a "low-stress job, defined as 8 9 consisting of only occasional decision[-]making or changes in the work setting." T 17. The ALJ 10 intended that her RFC restrict Plaintiff to no more than "simple" work, as she later made crystal 11 clear, when she purported to fully credit the opinion of a non-examining state agency medical 12 consultant, Dr. Winn. T 22. After noting that Dr. Winn’s PRT and mental RFCA opinions 13 14 contained moderate limitations in CPP, the ALJ finds "[t]he undersigned accommodates these 15 findings in the record, and effectuates these opinions, by limiting the claimant to simple work in 16 a low stress setting, with only occasional interaction with the public." Id. See also supra Section 17 (II)(C)(1) (summarizing opinion of Dr. Winn). The ALJ engages in precisely the error remanded 18 by the Ninth Circuit in Brink, and by countless other decisions throughout the country: reducing 19 20 moderate limitations in CPP to "simple" work. 343 Fed. App’x at 212; 599 Fed. Appx. at 21 658; Mascio, 780 F.3d at 638. 22 The Commissioner will find no refuge in prior authority from the Ninth Circuit, 23 24 such as Stubbs-Danielson, in which the narrative portion of the fully credited opinion 25 evidence expressly indicated that the claimant could engage in "simple" work despite 26 limitations in CPP. 539 F.3d at 1173–74. The facts of this case lead to an outcome 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 15 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 15 of 21 1 contrary to Stubbs-Danielson in that no medical opinion (fully credited or otherwise) 2 offers a narrative opinion that, despite moderate limitations in CPP, Plaintiff could 3 4 engage in "simple" work. Supra Section (II)(C) (summarizing opinion evidence). This 5 matter is readily distinguishable from Stubbs-Danielson and much more factually akin to 6 Brink. In fact, a recent decision of the Seventh Circuit held that where, as here, the fully 7 8 credited SAPC offers no narrative explaining moderate limitations in RFC assessment, 9 the ALJ during his colloquy with the VE should explicitly read into the hypothetical the 10 numerous moderate limitations in CPP, in order to ensure the RFC (and Step 5 11 determination) are supported by substantial evidence. Varga, 794 F.3d at 814. Here, the 12 13 VE adopted the first of his hypotheticals, reflected in his RFC, which failed to ask about 14 any of the three moderate limitations in CPP reflected in Dr. Winn’s opinion (whom the 15 ALJ purports to rely upon and fully credit in formulating his RFC), and thereby erred. 16 17 Supra Section (II)(D)(3). 18 Finally, the Commissioner often attempts to further distinguish Brink by 19 bifurcating the Step 2/3 severity and Listing analyses from the Step 4/5 RFC 20 21 assessments, by contending that the "moderate" difficulties in CPP found at Steps 2/3 22 have nothing to do with the RFC at Steps 4/5. Such argument has failed repeatedly at 23 the Circuit level. See Winschel v. Comm'r SSA, 631 F.3d 1176, 1180 (11th Cir. 2011) ("[o]ther 24 25 circuits have rejected this argument... though the PRT and RFC evaluations are undeniably 26 distinct, nothing precludes the ALJ from considering the results of the former in his 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 16 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 16 of 21 1 determination of the latter."). Moreover, such an argument would not be well-taken on this 2 record where Dr. Winn offers his moderate limitations as part of his RFC analysis in his RFC 3 assessment form. Supra Section (II)(C)(1). 4 5 (B) The ALJ failed to provide specific and legitimate reasons supported by substantial evidence for rejecting consultative examining opinion of Dr. 6 DiGiulio. 7 The Ninth Circuit has repeatedly held that when weighing the contradicted opinion of a 8 treating or examining physician, "‘an ALJ may only reject it by providing specific and legitimate 9 reasons that are supported by substantial evidence.’" Ryan v. Comm’r SSA, 528 F.3d 1194, 1198 10 (9th Cir. 2008) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). This Court has 11 12 applied the "specific and legitimate" reasons review to remand decisions of the Commissioner 13 that fail to live up to that standard. See Hill v. Astrue, No. 3:12-CV-0064-HRH, 2012 WL 14 12882829, at *5 (D. Alaska Dec. 7, 2012) (ALJ erred in rejecting CE opinion without 15 articulating specific and legitimate reasons for doing so) (J. Holland). 16 17 In this case, Plaintiff underwent consultative examination by Dr. DiGiulio, apparently at 18 the insistence of VE Head (supra Section (II)(D)(3) (summarizing T 64–65), who reached a 19 number of conclusions regarding Plaintiff’s inability to work: (1) Plaintiff suffered from autism 20 that had been previously undiagnosed, (2) his impairments interfered with any transition to work, 21 and (3) his prognosis was that Plaintiff’s autism was unlikely to improve (supra Section 22 23 (II)(C)(2)). The ALJ discounts the opinion of a consultative examiner, Dr. DiGiulio, because 24 (1) her opinion constituted a "legal conclusion of disability," (2) she "relied in part upon 25 statistically invalid results for her primary diagnosis of autism" which the ALJ found "dubious" 26 in light of the record "as a whole," and (3) Plaintiff worked at SGA prior to his AOD. T 22–23. 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 17 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 17 of 21 1 None of the ALJ’s findings constitute "specific and legitimate reasons" for discounting the 2 opinion of Dr. Digiulio, and she thereby erred. See, e.g., Ryan, 528 F.3d at 1198; Hill, 2012 WL 3 12882829, at *5. 4 5 The ALJ’s first determination, that Dr. DiGiulio reached a "legal conclusion of 6 disability" gives short shrift to the opinion of Dr. DiGiulio, which contained multiple 7 assessments of Plaintiff’s cognitive, social, and executive functioning1 and found them deficient 8 in several respects. Supra Section (II)(C)(2). The battery of tests to which Dr. DiGiulio 9 subjected Plaintiff more than adequately support her opinion. 20 C.F.R. § 404.1527(c)(3). 10 11 These test results included characterizations of Plaintiff’s "extremely low" and borderline range 12 results in several areas (with some functioning noted at or below the 5th percentile) constituted 13 opinions the ALJ was obligated to more fully consider. Id. at § 404.1527(a)(2) ("[m]edical 14 opinions are statements from physicians and psychologists or other acceptable medical sources 15 that reflect judgments about the nature and severity of your impairment(s), including your 16 17 symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your 18 physical or mental restrictions") (emphasis added). The ALJ offers no assessment of any of 19 these tests, and simply sweeps aside the entire report of Dr. DiGiulio as a "legal conclusion" 20 when it offered multiple opinions about the ability of Plaintiff to engage in the cognitive, social 21 22 and executive functioning required for employment. This was error. See generally Hill v. 23 Astrue, 688 F.3d 1144, 1150-51 (9th Cir. 2012) (statement that claimant was "unlikely" to work 24 25 1 Executive functioning impacts the ability to engage in work, work independently, or 26 maintain relationships. See, e.g., WebMD, Executive Function Skills and Disorder, reviewed by Dr. Smitha Bhandari, MD (April 27, 2015) (available at http://www.webmd.com/add-27 adhd/guide/executive-function#2) (last visited April 18, 2017). 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 18 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 18 of 21 1 constituted an opinion the Commissioner could not brush aside as an "opinion on an issue 2 reserved to the Commissioner"). 3 Second, while it is true that Dr. DiGiulio discounted one test, the MMPI-2 RF exam, 4 5 which produced invalid results, Dr. DiGiulio, in her expert medical opinion, explained why she 6 did so, and explicitly tied that decision to her judgment that Plaintiff suffered from autism 7 spectrum disorder and that such an invalid result was "not at all uncommon" given his diagnosis. 8 Supra Section (II)(C)(2) (quoting T 489). Thus, the ALJ’s indication that this should undermine 9 Dr. DiGiulio’s opinion amounts to little more than the ALJ substituting his own lay opinion for 10 11 that of a medical professional. See, e.g., Zwolle v. Berryhill, No. 4:16-CV-0030-HRH, 2017 WL 12 1347666, at *3 (D. Alaska Apr. 6, 2017) (J. Holland) ("An ALJ may not substitute his lay 13 opinion... for that of a professional"); Fraiser v. Schweiker, 878 F.2d 1438, 1989 WL 74744, at 14 *3 (9th Cir. 1989) (ALJ "substituted his own judgment" in rejecting opinions without supporting 15 reasons for doing so). Moreover, the ALJ discredits the opinion of Dr. DiGiulio because it was 16 17 "inconsistent" with the record as a whole, however, Dr. DiGiulio was the only consultative 18 examining physician to review the entire medical record prior to offering her assessment. Supra 19 Section (II)(C)(2) (Drs. Kesselring and Christensen review no psychiatric or other records prior 20 to their exams). The opinion of Dr. DiGiulio, having benefitted from the entire record evidence 21 22 at the time of her exam, should have received more weight in the ALJ’s analysis under the 23 Commissioner’s regulations then in effect. See 20 C.F.R. § 404.1527(c)(6) ("extent to which an 24 acceptable medical source is familiar with the other information in your case record"). 25 Moreover, to the extent the remaining consultative examiners’ opinions conflict with the opinion 26 of Dr. DiGiulio, the fact that Drs. Kesselring and Christensen lacked the "necessary background 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 19 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 19 of 21 1 information" about Plaintiff’s impairments (20 C.F.R. § § 404.1517) results in their two CE 2 opinions failing to constitute substantial evidence supporting the ALJ’s decision. Pruitt v. 3 4 Astrue, No.EDCV 08-1107-MAN, 2010 U.S. Dist. LEXIS 33102, at *12—14 (C.D. Cal. 5 Mar. 31, 2010) (collecting cases); Adesina v. Astrue, No. 12-CV-3184 (WFK), 2014 WL 6 5380938, at *10 (E.D.N.Y. Oct. 22, 2014) (citing Burgess v. Astrue, 537 F.3d 117, 132 (2d Cir. 7 2008); Brantley v. Comm’r SSA, 637 Fed. App’x 888, 894–95 (6th Cir. 2016). 8 9 Third, the ALJ’s insistence that Plaintiff worked, prior to his AOD, is apropos of nothing 10 and again constituted the ALJ substituting her own medical judgment for that of a medical 11 professional. Zwolle, 2017 WL 1347666, at *3; Fraiser, 1989 WL 74744, at *3. Dr. DiGiulio 12 opined that Plaintiff’s autism spectrum disorder remained untreated in his formative years, was 13 unlikely to now improve, and Plaintiff’s applications and testimony indicated that his 14 15 combination of impairments became disabling on his AOD, and not prior thereto. 16 IV. CONCLUSION 17 For the foregoing reasons, it is respectfully requested that this Court remand this matter 18 for payment of benefits, or, in the alternative, for further administrative proceedings, including 19 20 de novo hearing and decision. 21 Date: April 19, 2017 Respectfully submitted, 22/s/Paul Eaglin Paul Eaglin, Esq. 23 Alaska Bar #9304010 24 Olinsky Law Group 300 South State Street 25 Syracuse, New York 13202 Phone: (315) 701-5780 26 PBE/nvr Email: peaglin@windisability.com 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 20 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 20 of 21 1 2 CERTIFICATE OF SERVICE 3 This is to certify that I have this day served counsel for the Defendant with Plaintiff’s opening 4 Brief by filing the foregoing on the Court’s ECF system, which sent electronic notice to the 5 following recipients: 6 Christopher J. Brackett 7 Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone: (206) 615-3706 11 Fax: (206) 615-2531 christopher.brackett@ssa.gov 12 13 This 19th day of April, 2017. 14 15/s/Paul Eaglin Paul Eaglin, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 Opening Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 21 Case 1:16-cv-00019-HRH Document 14 Filed 04/19/17 Page 21 of 21

MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Howard D. Olinsky. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2318864.) by Michael Oivind Jahnsen.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA MICHAEL OIVIND JAHNSEN, Case No. 1:16-cv-000019-HRH Plaintiff(s), MOTION AND APPLICATION OF vs. NON-ELIGIBLE ATTORNEY FOR NANCY A. BERRYHILL, PERMISSION TO APPEAR AND Acting Commissioner of Social Security, PARTICIPATE IN THE UNITED STATES DISTRICT COURT Defendant(s). FOR THE DISTRICT OF ALASKA To the Honorable Judge of the above-entitled court: I, Howard D. Olinsky, hereby apply for permission to appear and (name) participate as counsel for Michael Oivind Jahnsen, plaintiff, (Name of party) (plaintiff/defendant) in the above-entitled cause pursuant to Rule 83.1 (d) of the Local Rules for the United States District Court, District of Alaska. I hereby apply for permission to appear and participate as counsel WITHOUT ASSOCIATION of local counsel because [check whichever of the following boxes apply, if any]: I am a registered participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. I have concurrently herewith submitted an application to the Clerk of the Court for registration as a participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. For the reasons set forth in the attached memorandum. Case 1:16-cv-00019-HRH Document 15 Filed 04/20/17 Page 1 of 4 OR I hereby designate, a member of the Bar of this court, (Name) who maintains an office at the place within the district, with whom the court and opposing counsel may readily communicate regarding conduct of this case. DATE: (Signature) Howard D. Olinsky (Printed Name) (Address) (City/State/Zip) (Telephone Number) (e-mail address) Consent of Local Counsel* I hereby consent to the granting of the foregoing application. DATE: (Signature) (Printed Name) (Address) (City, State, Zip) (Telephone) (*Member of the Bar of the United States District Court for the District of Alaska) Case 1:16-cv-00019-HRH Document 15 Filed 04/20/17 Page 2 of 4 DECLARATION OF NON-ELIGIBLE ATTORNEY Full Name: Howard D. Olinsky Business Address: 300 S. South Street, Ste. 420, Syracuse, NY 13202 (Mailing/Street) (City, State, ZIP) Residence: 4435 Swissvale Drive, Manlius, NY 13104 (Mailing/Street) (City, State, ZIP) Business Telephone: 315-701-5780 e-mail address: holinsky@windisability.com Other Names/Aliases: N/A Jurisdictions to Which Admitted and year of Admission: See attached sheet (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) Are you the subject of any pending disciplinary proceeding in any jurisdiction to which admitted? Yes No (If Yes, provide details on a separate attached sheet) Have you ever been suspended from practice or disbarred in any jurisdiction to which admitted? Yes No (If Yes, provide details on a separate attached sheet) In accordance with D.AK. LR 83.1(d)(4)[A](vi), I certify I have read the District of Alaska local rules by visiting the court's website at http://www.akd.uscourts.gov and understand that the practices and procedures of this court may differ from the practices and procedures in the courts to which I am regularly admitted. A Certificate of Good Standing from a jurisdiction to which I have been admitted is attached. Pursuant to 28 U.S.C. §1746, I hereby declare under penalty of perjury that the foregoing information is true, correct, and accurate. Dated: April 20, 2017 s/Howard D. Olinsky (Signature of Applicant) Case 1:16-cv-00019-HRH Document 15 Filed 04/20/17 Page 3 of 4 Attachment to Pro Hac Vice Application for Howard D. Olinsky: Court Date of Admission In Good Standing? New York State 02/07/1986 YES State of Georgia 01/23/2014 YES United States Supreme Court 04/01/1991 YES Court of Appeals for 2nd Circuit 11/01/2002 YES Court of Appeals for 6th Circuit 10/15/2013 YES Court of Appeals for Federal Circuit 06/12/2007 YES U.S. Court of Veteran’s Appeals, Washington D.C. 06/12/2007 YES U.S.D.C., NDNY 04/22/1986 YES U.S.D.C., WDNY 01/29/2001 YES U.S.D.C., EDNY 03/21/2003 YES U.S.D.C., SDNY 03/25/2003 YES U.S.D.C., DCT 12/10/2010 YES U.S.D.C., NDFL 10/31/2011 YES U.S.D.C., EDMI 02/25/2013 YES U.S.D.C., WDMI 12/26/2013 YES U.S.D.C., EDTX 12/20/2013 YES U.S.D.C., EDAR 01/03/2014 YES U.S.D.C., WDAR 01/03/2014 YES U.S.D.C., MDGA 01/28/2014 YES U.S.D.C., NDIL 01/30/2014 YES U.S.D.C., NDGA 02/10/2014 YES U.S.D.C., EDWI 04/14/2014 YES U.S.D.C., NDTX 05/15/2014 YES U.S.D.C., DCO 06/18/2014 YES U.S.D.C., SDGA 06/02/2014 YES U.S.D.C., WDWI 07/03/2014 YES U.S.D.C., WDTX 09/15/2014 YES U.S.D.C., NDIN 08/04/2015 YES U.S.D.C., CDIL 09/24/2015 YES U.S.D.C., SDIL 09/25/2015 YES U.S.D.C., EDMO 04/13/2017 YES Case 1:16-cv-00019-HRH Document 15 Filed 04/20/17 Page 4 of 4

{{1}} Certificate of Good Standing

AO 136 (Rev. 10/13) Certificate of Good Standing UNITED STATES DISTRICT COURT for the Northern District of New York CERTIFICATE OF GOOD STANDING I, Lawrence K. Baerman, Clerk of this Court, certify that HOWARD D. OLINSKY, Bar # 102297, was duly admitted to practice in this Court on April 22, 1986, and is in good standing as a member of the Bar of this Court. Dated at Syracuse, New York on March 27, 2017 (Location) (Date) Lawrence K. Baerman CLERK DEPUTY CLERK Case 1:16-cv-00019-HRH Document 15-1 Filed 04/20/17 Page 1 of 1

ORDER granting [15] Motion for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA NANCY A. BERRYHILL, Acting MICHAEL OIVIND JAHNSEN v. Commissioner of Social Security JUDGE H. RUSSEL HOLLAND CASE NO. 1:16-cv-0019-HRH (Juneau Division) PROCEEDINGS: ORDER FROM CHAMBERS The court has reviewed the motion for admission1 of non-resident attorney Howard D. Olinsky for permission to appear and participate in this case as counsel for plaintiff Michael Oivind Jahnsen without the association of local counsel. The motion is granted. 1 Docket No. 15. Order from Chambers – Application of Non-Resident Attorney-1-Case 1:16-cv-00019-HRH Document 16 Filed 04/21/17 Page 1 of 1

RESPONSE in Opposition re [14] MOTION to Remand to Social Security filed by Nancy A. Berryhill.

1 B RY AN S CHROED ER Acting United States Attorney 2 R ICHARD P OMEROY 3 Assistant United States Attorney 4 Federal Bldg. & U.S. Courthouse 222 W 7th Ave., No. 9, Rm. C-253 5 Anchorage, AK 99513-7676 (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 C H R IS T OP H E R J. B R A C KE T T 8 Special Assistant U.S. Attorney Office of the General Counsel 9 Social Security Administration 701 Fifth Ave., Ste. 2900, M/S 221A 10 Seattle, WA 98104-7075 11 (206) 615-2545 christopher.brackett@ssa.gov 12 13 U NITED S TATES D ISTRICT C OURT D ISTRICT OF A LASKA 14 M ICHAEL O IVIND J AHNSEN, No. 1:16-cv-19-HRH 15 Plaintiff, 16 17 v. 18 N ANCY A. B ERRYHILL, Defendant’s Brief Acting Commissioner of Social Security, 19 Defendant. 20 21 S TATEMENT OF THE C ASE 22 On August 8, 2015, an administrative law judge (ALJ) denied Plaintiff Michael 23 Oivind Jahnsen’s claim for disability insurance benefits and Supplemental Security 24 Income, concluding that, despite his mental and physical limitations, Jahnsen was 25 not disabled (Tr. 8–31). Jahnsen argues that the ALJ failed to account for 26 27 limitations in concentration, persistence, or pace when determining the residual 28 OFFICE GENERAL COUNSEL OF THE DEFEND A N T' S1:16-cv-00019-HRH Case BRIEF-1-Document 7 005/17/17 17 Filed 1 F I F T H A V EPage., S T E1. 2of 9 012 0 M/S 221A 1: 1 6-C V-1 9-HR H SEATTLE, WA 98104 • (206) 615-2545 1 functional capacity (i.e., the most that Jahnsen could do despite his impairments). 2 Jahnsen further argues that the ALJ improperly denied weight to the opinion of an 3 examining psychologist who opined that Jahnsen had limitations traceable to 4 undiagnosed autism dating back decades. As shown below, neither argument holds 5 water. 6 A reviewing court upholds an ALJ’s findings if they are supported by 7 substantial evidence in the record. 42 U.S.C. § 405(g). Substantial evidence is such 8 relevant evidence as a reasonable mind might accept as adequate to support a 9 conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). Under this deferential 10 11 standard of review, a court does not "reweigh the evidence, substitute its judgment 12 for [that of the Commissioner], or give vent to feelings of compassion." Winans v. 13 Bowen, 853 F.2d 643, 644-45 (9th Cir. 1987). "[T]he Commissioner’s findings are 14 upheld if supported by inferences reasonably drawn from the record... and if 15 evidence exists to support more than one rational interpretation, we must defer to 16 the Commissioner’s decision[.]" Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 17 1190, 1193 (9th Cir. 2004) (citations omitted). 18 A RGUMENT 19 I. The ALJ’s residual functional capacity finding limiting Jahnsen’s 20 tolerance for workplace decision-making and changes was wholly 21 consistent with Jahnsen’s moderate limitation in concentration, persistence, and pace. 22 Jahnsen argues that the ALJ needed to account for his finding of moderate 23 difficulties in concentration, persistence, and pace from the psychiatric review 24 technique in his separate residual functional capacity finding. Dkt. Entry 14, 25 26 pp. 13–17. This issue reflects a perceived conflict between two separate, 27 independent findings within the ALJ’s application of the five-step sequential 28 OFFICE GENERAL COUNSEL OF THE DEFEND A N T' S1:16-cv-00019-HRH Case BRIEF-2-Document 7 005/17/17 17 Filed 1 F I F T H A V EPage., S T E2. 2of 9 012 0 M/S 221A 1: 1 6-C V-1 9-HR H SEATTLE, WA 98104 • (206) 615-2545 1 evaluation. The distinction between these two findings is important for 2 understanding why there is no actual conflict in the ALJ’s decision. 3 When a claimant presents a colorable claim of mental impairment, the ALJ 4 must use the psychiatric review technique to assess the impairment’s severity for 5 steps two and three of the sequential evaluation. Keyser v. Comm’r of Soc. Sec. 6 Admin., 648 F.3d 721, 726 (9th Cir. 2011). Under this technique, the ALJ rates the 7 claimant’s functional limitation in four categories: activities of daily living; social 8 functioning; concentration, persistence, or pace; and episodes of decompensation. 20 9 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). 1 The regulations describe these categories 10 11 as "broad functional areas." Id. At issue is the broad functional area of 12 concentration, persistence, or pace. When rating this area, an ALJ must assign it 13 one of five possible ratings: none, mild, moderate, marked, or extreme. 20 C.F.R. 14 §§ 404.1520a(c)(4), 416.920a(c)(4). The results of this rating system factor into the 15 findings of whether the claimant’s mental impairment is severe at step two and 16 whether the impairment meets a Listing at step three. 20 C.F.R. §§ 404.1520a(d), 17 416.920a(d). 18 While this special technique deals with broad functional areas, the residual 19 functional capacity addresses the more nuanced details of a claimant’s vocational 20 functioning, specifically regarding work-related abilities. The regulations state that 21 the residual functional capacity finding "complements" the evaluation of the broad 22 functional area. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00A. Rather than simply 23 24 repeating the psychiatric review technique’s findings, the residual functional 25 capacity provides a distinct assessment "requiring consideration of an expanded list 26 1The Commissioner updated this regulation in January 2017. This brief will cite 27 and rely on the language in place at the time of Jahnsen’s decision. 28 OFFICE GENERAL COUNSEL OF THE DEFEND A N T' S1:16-cv-00019-HRH Case BRIEF-3-Document 7 005/17/17 17 Filed 1 F I F T H A V EPage., S T E3. 2of 9 012 0 M/S 221A 1: 1 6-C V-1 9-HR H SEATTLE, WA 98104 • (206) 615-2545 1 of work-related capacities that may be affected by mental disorders when [the 2 claimant’s] impairment is severe but neither meets nor is equivalent in severity to a 3 listed mental disorder." Id. Thus, the vocational assessment of the residual 4 functional capacity should be consistent with the broad functional assessment of the 5 psychiatric review technique, but it should not simply repeat the same findings. 6 Agency guidelines on the residual functional capacity further explain the 7 distinction: 8 9 The psychiatric review technique described in 20 CFR 404.1520a and 416.920a and summarized on the Psychiatric Review Technique Form 10 (PRTF) requires adjudicators to assess an individual’s limitations and restrictions from a mental impairment(s) in categories identified in the 11 "paragraph B" and "paragraph C" criteria of the adult mental disorders 12 listings. 2 The adjudicator must remember that the limitations identified in the "paragraph B" and "paragraph C" criteria are not an 13 RFC [residual functional capacity] assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential 14 evaluation process. The mental RFC assessment used at steps 4 and 5 15 of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad 16 categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments, and summarized on the 17 PRTF. 18 Social Security Ruling (SSR) 96-8p (emphasis added). 3 Note that the ALJ in this 19 case incorporated this language into her decision to clarify that her residual 20 functional capacity finding would be a more precise, vocationally-relevant 21 assessment than her findings under the psychiatric review technique (Tr. 16–17). 22 23 24 2 The broad functional areas are frequently referred to as "paragraph B criteria" 25 because they appear in paragraph B for many of the mental impairment Listings. 26 The paragraph C criteria, not relevant here, appear in paragraph C of many of the mental impairment Listings. 27 3 Available at 1996 WL 374184 28 OFFICE GENERAL COUNSEL OF THE DEFEND A N T' S1:16-cv-00019-HRH Case BRIEF-4-Document 7 005/17/17 17 Filed 1 F I F T H A V EPage., S T E4. 2of 9 012 0 M/S 221A 1: 1 6-C V-1 9-HR H SEATTLE, WA 98104 • (206) 615-2545 1 Here, the ALJ found under the psychiatric review technique that Jahnsen had 2 moderate difficulties in concentration, persistence, or pace (Tr. 16). This was 3 consistent with the conclusions of State agency psychiatrist Wandal Winn, M.D. 4 (Tr. 100). Turning to the residual functional capacity, however, the ALJ had a more 5 difficult task. 6 The ALJ first considered the opinion of consultative psychologist John 7 Kesselring, Ph.D., who ultimately concluded that Jahnsen’s limitations did not 8 appear to significantly interfere with his ability to work (Tr. 385). The ALJ then 9 considered the opinion of Dr. Winn. When Dr. Winn explained his findings for 10 11 Jahnsen’s residual functional capacity, however, he expressed conclusions that 12 offered no concrete functional limitations. He repeated that Jahnsen’s depressive 13 symptoms moderately decreased his concentration, persistence, or pace (Tr. 106). 14 Addressing social limitations, Dr. Winn stated that Jahnsen had a history of being 15 associated with a methamphetamine dealer and worries that people followed or 16 harassed him and that he enjoyed working as a personal care attendant in the past 17 (Tr. 106). Dr. Winn added that Jahnsen had "some understanding" about how 18 alcohol may affect his mental health symptoms but that he might need support in 19 recognizing this (Tr. 107). None of these remarks show actual limitations in 20 workplace functioning, at least not in vocationally relevant terms. These terms are 21 difficult to translate into a useful assessment of a claimant’s functioning. Indeed, 22 agency policy disfavors nonspecific qualifying terms precisely because they rarely 23 24 offer an insight into the extent of a claimant’s limitations. See Program Operations 25 26 27 28 OFFICE GENERAL COUNSEL OF THE DEFEND A N T' S1:16-cv-00019-HRH Case BRIEF-5-Document 7 005/17/17 17 Filed 1 F I F T H A V EPage., S T E5. 2of 9 012 0 M/S 221A 1: 1 6-C V-1 9-HR H SEATTLE, WA 98104 • (206) 615-2545 1 Manual System (POMS) DI 24510.065(B)(1)(d) (instructing adjudicators to avoid 2 terms such as "moderate" or "marked" for vocational limitations). 4 3 Nevertheless, an ALJ must translate such medical evidence into a succinct 4 residual functional capacity. Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 996, 5 1006 (9th Cir. 2015) (citing Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th 6 Cir. 2008)). The ALJ did precisely that, finding a residual functional capacity that 7 was consistent with the medical evidence. Turner v. Comm’r of Soc. Sec. Admin., 8 613 F.3d 1217, 1222–23 (9th Cir. 2010) (upholding residual functional capacity that 9 was consistent with medical opinions despite not being identical to them). 10 11 This case parallels Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173–74 (9th Cir. 12 2008). There, the court upheld a residual functional capacity for simple tasks 13 properly accounted for moderate limitations in areas of concentration and pace. Id. 14 The ALJ there considered one reviewing doctor’s opinion that the claimant had 15 moderate limitations in performing at a consistent pace without an unreasonable 16 number and length of rest periods. Id. at 1173. A second reviewing doctor offered 17 more concrete restrictions showing the claimant capable of simple tasks. Id. The 18 court held that adopting the latter did not mean rejecting the former. Id. at 1174. 19 The same is true here. The ALJ concluded that Jahnsen could perform low-20 stress work, which she defined as occasional decision-making and occasional 21 changes in the workplace (Tr. 17). Lacking anything of substance from Dr. Winn’s 22 opinion beyond the vague "moderate deficiencies," the ALJ was left with Dr. 23 24 Kesselring’s opinion that, though Jahnsen had some symptoms, they "do not appear 25 to significantly interfere with his ability to work" (Tr. 385). Accordingly, the ALJ 26 27 4 Available at 2001 WL 1933372 28 OFFICE GENERAL COUNSEL OF THE DEFEND A N T' S1:16-cv-00019-HRH Case BRIEF-6-Document 7 005/17/17 17 Filed 1 F I F T H A V EPage., S T E6. 2of 9 012 0 M/S 221A 1: 1 6-C V-1 9-HR H SEATTLE, WA 98104 • (206) 615-2545 1 found a residual functional capacity that was concrete, vocationally-relevant, 2 consistent with Dr. Winn’s assessment, and even more favorable to Jahnsen than 3 Dr. Kesselring’s opinion. Since the ALJ’s conclusions were a reasonable 4 interpretation of the medical evidence, the Court should conclude that the residual 5 functional capacity was consistent with moderate difficulties in concentration, 6 persistence, or pace. 7 II. The ALJ reasonably declined to give weight to Dr. DiGiulio’s opinion that 8 autism spectrum disorder rendered Jahnsen unfit for competitive 9 employment. 10 To determine a residual functional capacity, an ALJ must resolve any 11 inconsistencies in the medical opinion evidence. 20 C.F.R. §§ 404.1527, 416.927. 12 "[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical 13 evidence." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). When 14 resolving conflicting medical opinions, the ALJ should provide specific, legitimate 15 reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 16 Here, the ALJ consider the opinion of examining psychologist Diane V. DiGiulio, 17 Ph.D., and found it warranted little weight (Tr. 20, 22–23, 484–91). The ALJ 18 correctly noted that, by regulation, an opinion like Dr. DiGiulio’s—one that says a 19 claimant is unemployable and thus disabled—reflects an administrative finding and 20 is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e)(2)(i), 21 22 416.927(e)(2)(i). The ALJ further found that, by her own admission, Dr. DiGiulio 23 relied on invalid test results to reach her conclusion (Tr. 20, 22). Dr. DiGiulio noted 24 that the Minnesota Multiphasic Personality Inventory showed a high number of 25 unusual responses indicative of psychopathology, indicating an invalid profile 26 (Tr. 489). Nevertheless, she relied on it as an accurate reflection of Jahnsen’s 27 28 OFFICE GENERAL COUNSEL OF THE DEFEND A N T' S1:16-cv-00019-HRH Case BRIEF-7-Document 7 005/17/17 17 Filed 1 F I F T H A V EPage., S T E7. 2of 9 012 0 M/S 221A 1: 1 6-C V-1 9-HR H SEATTLE, WA 98104 • (206) 615-2545 1 functioning (Tr. 489). This internal inconsistency was enough for a reasonable 2 person to have doubts about the reliability of her conclusions. 20 C.F.R. 3 §§ 404.1527(c)(4), 416.927(c)(4) (inconsistency negatively affects opinion’s weight). 4 But, more importantly, this opinion defies Jahnsen’s own demonstrated work 5 history. The bulk of Dr. DiGiulio’s assessment hinged on a previously undiagnosed 6 autism spectrum disorder dating back to Jahnsen’s childhood (Tr. 490–91). The 7 bottom line of Dr. DiGiulio’s opinion was that, "Based on Mr. Jahnsen’s primary 8 diagnosis of Autism Spectrum Disorder, I do not see him as a viable candidate for 9 competitive employment, even with vocational supports in place. He did not have 10 11 the benefit of early identification and treatment in childhood and/or adolescence." 12 (Tr. 491). Thus, according to this opinion, Jahnsen never had the ability to work. 13 As the ALJ found, however, despite this apparent lifelong condition, Jahnsen 14 performed at substantial gainful activity levels for many years before ultimately 15 stopping work for other reasons (Tr. 22–23). This is a valid reason to question Dr. 16 DiGiulio’s opinion. Assuming Jahnsen did have autism since adolescence, as Dr. 17 DiGiulio stated, it is safe to conclude that it did not render him disabled. The fact 18 that Jahnsen managed to have years of substantial gainful activity (Tr. 233–40) 19 undermines Dr. DiGiulio’s conclusion that this lifelong condition rendered him unfit 20 for competitive employment. 21 The Ninth Circuit has upheld this reasoning. In Bayliss v. Barnhart, the 22 claimant alleged she became disabled in 1998, but her mental limitations preceded 23 24 the alleged onset date by about three years. 427 F.3d 1211, 1216. The court upheld 25 the ALJ’s conclusion that, in those three years, the claimant’s mental impairment 26 did not prevent her from "completing high school, obtaining a college degree, 27 28 OFFICE GENERAL COUNSEL OF THE DEFEND A N T' S1:16-cv-00019-HRH Case BRIEF-8-Document 7 005/17/17 17 Filed 1 F I F T H A V EPage., S T E8. 2of 9 012 0 M/S 221A 1: 1 6-C V-1 9-HR H SEATTLE, WA 98104 • (206) 615-2545 1 finishing a Certified Nurses’ Aide training program, and participating in military 2 training." Id. The same reasoning applies here. Dr. DiGiulio stated in no uncertain 3 terms that symptoms from Jahnsen’s autism were "longstanding" and dated back to 4 childhood (Tr. 490–91). Yet Jahnsen successfully worked for many years, his autism 5 notwithstanding (Tr. 302–03). Nothing in the record suggests that this condition 6 suddenly worsened. The ALJ reasonably concluded that, even if Jahnsen had 7 autism, it did not prevent him from working. Thus, the Court should uphold this 8 conclusion. 9 10 III. Jahnsen presented no serious argument in his brief that any error in this case would warrant a payment of benefits. 11 Jahnsen asked that the Court remand for payment of benefits. Dkt. Entry 14, 12 p. 20. The Ninth Circuit held that only rare cases warrant a remand for payment of 13 benefits, and that the proper remedy typically is "the ordinary remand rule"—that 14 is, for further administrative proceedings. Treichler v. Comm’r of Soc. Sec. Admin., 15 16 775 F.3d 1090, 1099–1100 (9th Cir. 2014). Under Treichler, a reviewing court may 17 exercise its discretion for deviating from the ordinary remand rule only if: 18 • the ALJ commits harmful legal error, and 19 • the record has been fully developed, there are no outstanding issues 20 requiring resolution, and further administrative proceedings would not 21 be useful, and 22 • crediting the rejected evidence as true and considering the record as a 23 24 whole, the court has not the slightest uncertainty as to the outcome. 25 26 27 28 OFFICE GENERAL COUNSEL OF THE DEFEND A N T' S1:16-cv-00019-HRH Case BRIEF-9-Document 7 005/17/17 17 Filed 1 F I F T H A V EPage., S T E9. 2of 9 012 0 M/S 221A 1: 1 6-C V-1 9-HR H SEATTLE, WA 98104 • (206) 615-2545 1 Id. at 1101–02. If a plaintiff establishes all three criteria, the reviewing court still 2 retains flexibility if the record creates serious doubt that as to whether the claimant 3 is in fact disabled. 5 Id. at 1102. 4 Though Jahnsen has argued that the ALJ made errors, he has offered no 5 argument that the facts of this case meets the remaining Treichler criteria. 6 Assuming arguendo the ALJ erred in either of the issues discussed above, Jahnsen 7 does not show that further proceedings would not be helpful. As it stands, Jahnsen’s 8 assertions of error, if proven, at best, leave unanswered questions and, at worst, 9 create new unresolved evidentiary conflicts. If the residual functional capacity 10 11 finding was actually inconsistent with the moderate restrictions from the 12 psychiatric review technique, there is no indication that this would preclude the 13 jobs identified as examples of work Jahnsen could still perform. 6 And, if the ALJ 14 erred in rejecting Dr. DiGiulio’s opinion, further proceedings would help resolve the 15 clear conflict between this opinion and Dr. Kesselring’s. 16 Jahnsen offers no argument for how further proceedings would not help resolve 17 these issues. Thus remand for payment of benefits would be inappropriate. 18 19 20 21 22 23 5 The Commissioner maintains that a reviewing court crediting evidence in a 24 disability claim conflicts with basic principles of administrative law. "[A] credit-as-true rule is not consistent with normal administrative law principles." Kinzer v. 25 Colvin, 567 F. App’x 529, 2014 WL 1387554, at *2 (9th Cir. Apr. 10, 2014) (Gould, 26 J., concurring). 6 Indeed, at prior levels of the administrative process, Dr. Winn’s assessment 27 resulted in a finding of not disabled (Tr. 121–24). 28 OFFICE GENERAL COUNSEL OF THE D E F E NCase D A N T'1:16-cv-00019-HRH S BRIEF-10-17 Filed7 005/17/17 Document 1 F I F T H A VPage E., STE 10. 2of 90012M/S 221A 1: 1 6-C V-1 9-HR H SEATTLE, WA 98104 • (206) 615-2545 1 C ONCLUSION 2 Substantial evidence supports the ALJ’s conclusion that Jahnsen was not 3 disabled. Accordingly, the Commissioner asks that the Court uphold her final 4 decision. 5 D A T E D May 17, 2017. 6 Respectfully submitted, 7 B RY AN S CHROED ER Acting United States Attorney 8 R ICHARD P OMEROY 9 Assistant United States Attorney 10 M ATH EW W. P ILE 11 Acting Regional Chief Counsel Region X, Seattle 12 13 s/Christopher J. Brackett C H R IS T OP H E R J. B R A C KE T T 14 Special Assistant U.S. Attorney Office of the General Counsel 15 Social Security Administration 16 17 18 19 20 21 22 23 24 25 26 27 28 OFFICE GENERAL COUNSEL OF THE D E F E NCase D A N T'1:16-cv-00019-HRH S BRIEF-11-17 Filed7 005/17/17 Document 1 F I F T H A VPage E., STE 11. 2of 90012M/S 221A 1: 1 6-C V-1 9-HR H SEATTLE, WA 98104 • (206) 615-2545 1 C ERTIFICATE OF S ERVICE 2 I hereby certify that the foregoing Defendant’s Brief was filed with the Clerk of 3 the Court on May 17, 2017, using the CM/ECF system, which will send notice of 4 such filing to the following CM/ECF participants: Howard Olinsky & Paul Eaglin. 5 s/Christopher J. Brackett 6 Christopher J. Brackett 7 Special Assistant U.S. Attorney 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OFFICE GENERAL COUNSEL OF THE D E F E NCase D A N T'1:16-cv-00019-HRH S BRIEF-12-17 Filed7 005/17/17 Document 1 F I F T H A VPage E., STE 12. 2of 90012M/S 221A 1: 1 6-C V-1 9-HR H SEATTLE, WA 98104 • (206) 615-2545

REPLY to Response to Motion re [14] MOTION to Remand to Social Security filed by Michael Oivind Jahnsen.

1 2 Howard D. Olinsky (NY Bar No. 2044865) 3 Admitted Pro Hac Vice Attorney for Plaintiff 4 Olinsky Law Group 5 300 South State Street Syracuse, New York 13202 6 Telephone: (315) 701-5780 Fax: (315) 701-5781 7 holinsky@windisability.com 8 9 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ALASKA 10 11 Michael Oivind Jahnsen, 12 Plaintiff, 13 Case No. 1:16-CV-19-HRH vs. 14 15 PLAINTIFF’S REPLY BRIEF Nancy A. Berryhill, (SOCIAL SECURITY) 16 Acting Commissioner of Social Security, 17 18 Defendant 19 PLAINTIFF’S REPLY MEMORANDUM OF LAW IN SUPPORT 20 OF A SOCIAL SECURITY APPEAL 21 I. ARGUMENT 22 Plaintiff, 51 years old at his disability onset date, should be found disabled under the 23 Commissioner’s regulations if he is capable of sedentary work (20 C.F.R. Part 404, Subpart P, 24 Appendix 2, Medical-Vocational Rules 201.12 & 201.14 ("Grid Rules")) or if the combination of 25 26 his physical and non-exertional mental impairments reduce his ability to engage "the basic 27 28 Reply Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 1 Case 1:16-cv-00019-HRH Document 18 Filed 05/25/17 Page 1 of 7 1 mental demands" for work (SSR 85-15). The Commissioner’s response obfuscates by offering 2 arguments rejected by numerous Circuit Courts and failing to recognize, as Dr. Digiulo 3 recognized, that Plaintiff has been misdiagnosed his entire life and has received no treatment for 4 5 his autism. 6 1. The ALJ’s residual functional capacity finding was the product of legal error and was unsupported by substantial evidence in several respects. 7 8 (A) The ALJ fails to account for moderate limitations in concentration, persistence and pace by reducing Plaintiff’s RFC to "simple" work, which 9 thereby deprived the Step 5 determination of substantial evidence in support. 10 The Commissioner attempts to circumvent the plain error engaged in by the ALJ by 11 12 bifurcating the analysis between psychiatric review technique ("PRT") or special technique 13 employed by the Agency for evaluating mental disorders at Steps 2/3 and the later RFC analysis 14 at Steps 4/5. Def.’s Resp. Br., Dkt. No. 17 (hereinafter "Def.’s Resp."), at 2–6. Plaintiff’s 15 opening brief anticipated the Commissioner would, once again, attempt to distinguish the PRT 16 17 from the RFC, and provided this Court with Circuit Court authority explicitly rejecting the 18 Commissioner’s position. See Pl.’s Opening Br., Dkt. No. 14 (hereinafter "Pl.’s Br."), at 16–17. 19 Winschel v. Comm'r SSA, 631 F.3d 1176, 1180 (11th Cir. 2011) ("[o]ther circuits have rejected 20 this argument... though the PRT and RFC evaluations are undeniably distinct, nothing 21 precludes the ALJ from considering the results of the former in his determination of the latter.") 22 23 (emphasis added). The Commissioner offers only the same Agency rulings (SSR 96-8p) and 24 regulations (20 C.F.R. § 404.1520a(c)(4)) trotted out before courts in the past, and this Court 25 should reject them now just as the Winschel and other courts have done. See, e.g,. Friesth v. 26 Berryhill, No. CV 16-3535-KES, 2017 WL 901882, at *5 (C.D. Cal. Mar. 7, 2017) ("Numerous 27 28 Reply Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 2 Case 1:16-cv-00019-HRH Document 18 Filed 05/25/17 Page 2 of 7 1 unpublished district court opinions... find error when the ALJ finds that a claimant has 2 moderate limitation in maintaining [CPP] at step two, but attempts to account for this in the RFC 3 only by limiting the claimant to simple, repetitive work."). 4 5 The Ninth Circuit has approvingly cited to Winschel yet affirmed only where the medical 6 evidence explicitly reduced moderate limitations in CPP to "simple" work (i.e. when a doctor 7 states that despite the moderate limitations in CPP, the doctor found the claimant is "able" or 8 "capable" of engaging in simple or unskilled work). See Bruesch v. Colvin, 609 F. App'x 481, 9 482 (9th Cir. 2015) ("Dr. Gregory Cole concluded that despite Bruesch’s tendency to give up 10 11 easily on tasks and her slow pace, she was able to sustain simple, routine tasks.") (citing 12 Winschel 631 F.3d at 1180–81). Here, by contrast, the fully credited opinion of Dr. Winn does 13 not indicate that Plaintiff is "able" or "capable" of engaging in such work, and, thus, all that 14 remains is the ALJ’s error in reducing moderate limitations in CPP to "simple" work (T 22) 15 despite Dr. Winn failing to explicitly indicate that Plaintiff could engage in such work. See 16 17 Brink v. Comm'r SSA, 343 Fed. App’x 211, 212 (9th Cir. 2009); Brink v. Comm'r SSA, 599 Fed. 18 Appx. 657, 658 (9th Cir. 2015); Lubin v. Comm'r of Soc. Sec. Admin., 507 Fed.Appx. 709, 712 19 (9th Cir. 2013) ("Although the ALJ found... moderate difficulties in maintaining [CPP], the 20 ALJ erred by not including this limitation in the [RFC] determination or in the hypothetical 21 22 question to the [VE]."). 23 Second, the Commissioner’s attempt to bifurcate the PRT from the RFC is not well taken 24 on the facts of this case where the ALJ purported to fully credit the opinion (T 22) of non-25 examining state agency consultant Dr. Winn, who, in his mental RFC analysis (not in his PRT) 26 opined to 3 moderate limitations in CPP, and did not indicate, in his narrative, that Plaintiff could 27 28 Reply Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 3 Case 1:16-cv-00019-HRH Document 18 Filed 05/25/17 Page 3 of 7 1 engage in "simple" work (T 106, 121). The ALJ purports to fully credit this opinion, yet fails to 2 reconcile his RFC or hypothetical questions to the VE with the moderate limitations in CPP 3 opined by Dr. Winn, and thereby erred. See, e.g., Gurnett v. Colvin, 213 F. Supp. 3d 1182, 1204 4 5 (D. Alaska 2016) (ALJ reversibly erred by purporting to accord "considerable weight" to an 6 opinion and then "ignoring" portions of it inconsistent with the ALJ’s findings). 7 (B) The ALJ failed to provide specific and legitimate reasons supported by 8 substantial evidence for rejecting consultative examining opinion of Dr. DiGiulio. 9 Plaintiff’s opening brief again anticipated many of the Commissioner’s contentions, 10 including that the opinion of Dr. DiGiulio could be disregarded as an opinion on an issue 11 12 reserved to the Commissioner, without examining the multiple examination findings indicative 13 of functioning in the borderline range intellectually. Pl.’s Br. at 18–19 (citing Hill v. Astrue, 688 14 F.3d 1144, 1150-51). Plaintiff also anticipated that the Commissioner would argue that Dr. 15 Digiulio’s opinion could be discounted because of the "statistically invalid" responses, however, 16 17 Dr. Digiulio, in her expert medical opinion, explained the inconsistency as common among 18 autism patients. T 489. See Pl.’s Br. at 19 (citing Zwolle v. Berryhill, No. 4:16-CV-0030-HRH, 19 2017 WL 1347666, at *3 (D. Alaska Apr. 6, 2017) (J. Holland) ("An ALJ may not substitute his 20 lay opinion... for that of a professional")). The Commissioner offers no countervailing legal 21 authority other than a generic reference to the Commissioner’s regulations for weighing opinion 22 23 evidence. Def.’s Resp. at 8 (citing 20 C.F.R. § 404.1527(c)(4), 416.927(c)(4)). Plaintiff 24 accordingly stands on the arguments and authorities raised in his opening brief. 25 Finally, assuming, arguendo, that the Commissioner correctly reads the Bayliss case, the 26 fact that Plaintiff worked with his undiagnosed autism prior to his AOD, does not substitute as a 27 28 Reply Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 4 Case 1:16-cv-00019-HRH Document 18 Filed 05/25/17 Page 4 of 7 1 specific and legitimate reason for rejecting the opinion of a consultative examiner, Dr. DiGiulio, 2 whose opinion the ALJ rejects for the above erroneous reasons unsupported by substantial 3 evidence (T 22–23). The Commissioner attempts to distract the Court with an issue the ALJ had 4 5 already resolved: Plaintiff could not return to previous work. T 25. Thus, the relevant inquiry is 6 not whether he could engage in past work (the ALJ found he could not, despite discounting his 7 autism) (T 14). Instead the inquiry before the Court is whether the ALJ provided specific and 8 legitimate reasons for rejecting the opinion of Dr. DiGiulio, which found autism among is 9 impairments, and whether that opinion, if adopted, could lead to a different disability outcome. 10 11 See generally Hansen v. Colvin, No. 2:15-CV-02010-JCC-KLS, 2016 WL 7650613, at *4 (W.D. 12 Wash. Dec. 5, 2016), report and recommendation adopted, No. C15-2010-JCC-KLS, 2017 WL 13 58894 (W.D. Wash. Jan. 5, 2017) ("ALJ dismissed Dr. Mitiku's opinion as undermined by 14 plaintiff's "several years" of work prior to the alleged onset date. As an initial matter, plaintiff's 15 work history prior to the alleged onset date is of limited probative value.") (emphasis added). 16 17 Plaintiff submits for the foregoing reasons and reasons stated in her opening brief that the ALJ 18 harmfully erred in failing to provide specific and legitimate reasons for discounting the opinion 19 of Dr. DiGiulio. See Hill, 688 F.3d at 1150-51 (remanding ALJ’s failure to properly consider 20 statement that claimant was "unlikely" to work constituted an opinion the Commissioner could 21 22 not brush aside as an "opinion on an issue reserved to the Commissioner"). 23 (C) Whether this Court may remand for payment of benefits. 24 The Commissioner responds to Plaintiff’s prayer for relief that the conclusion of his brief, 25 asking this Court to either remand for payment of benefits, or, in the alternative, for further 26 administrative proceedings. Def.’s Resp. at 9–10, Pl.’s Br. at 20. Plaintiff submits that ALJ 27 28 Reply Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 5 Case 1:16-cv-00019-HRH Document 18 Filed 05/25/17 Page 5 of 7 1 LaCara has already had one attempt to discredit the findings of Dr. DiGiulio, and that the record 2 provides no reason to remand this case on this issue other than to permit ALJ LaCara a second 3 bite at the apple. Dr. DiGiulio found that Plaintiff could not adjust to employment at his 4 5 advanced age, due to his misdiagnosed autism and the potential for him to relapse into 6 alcoholism should he attempt to do so. Pl.’s Br. at 9 (quoting T 491). If the Court fully credits 7 the opinion of Dr. DiGiulio, it would provide an adequate basis for remanding for payment of 8 benefits under the Ninth Circuit’s three-part test. Garrison v. Colvin, 759 F.3d 995, 1020 (9th 9 Cir. 2014). The record in this case requires no further development, the ALJ has provided a 10 11 legally insufficient reason for rejecting Dr. DiGiulio’s opinion, and, if the opinion of Dr. 12 DiGiulio were credited as true, the ALJ would be require to find claimant disabled. Id. 13 Alternatively, Plaintiff prevailing on the first issue alone would require a new 14 administrative hearing and decision. 15 II. CONCLUSION 16 17 For the foregoing reasons, it is respectfully requested that this Court remand this matter 18 for payment of benefits, or, in the alternative, for further administrative proceedings, including 19 de novo hearing and decision. 20 Date: May 25, 2017 Respectfully submitted, 21/s/Howard D. Olinsky 22 Howard D. Oinsky, Esq. 23 Admitted Pro Hac Vice Olinsky Law Group 24 300 South State Street Syracuse, New York 13202 25 Phone: (315) 701-5780 26 HDO/nvr Email: holinsky@windisability.com 27 28 Reply Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 6 Case 1:16-cv-00019-HRH Document 18 Filed 05/25/17 Page 6 of 7 1 CERTIFICATE OF SERVICE 2 3 This is to certify that I have this day served counsel for the Defendant with Plaintiff’s Reply Brief by filing the foregoing on the Court’s ECF system, which sent electronic notice to the 4 following recipients: 5 6 Christopher J. Brackett Special Assistant United States Attorney 7 Office of the General Counsel 8 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 9 Seattle, WA 98104-7075 Telephone: (206) 615-3706 10 Fax: (206) 615-2531 11 christopher.brackett@ssa.gov 12 This 25th day of May, 2017. 13 14/s/Howard D. Olinsky 15 Howard D. Oinsky, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply Brief (Social Security) Michael Oivind Jahnsen v. Berryhill Case No. 1:16-CV-19-HRH 7 Case 1:16-cv-00019-HRH Document 18 Filed 05/25/17 Page 7 of 7

ORDER granting [14] Motion to Remand. The Commissioner's decision is reversed and this matter is remanded for further proceedings. Signed by Judge H. Russel Holland on 7/13/17.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA MICHAEL OIVIND JAHNSEN,)) Plaintiff,)) vs.)) NANCY A, BERRYHILL, acting) Commissioner of Social Security,)) No. 1:16-cv-0019-HRH Defendant.) _______________________________________) ORDER This is an action for judicial review of the denial of disability benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 42 U.S.C. §§ 401-434, 1381-1383f. Plaintiff Michael Oivind Jahnsen has timely filed his opening brief,1 to which defendant Nancy A. Berryhill has responded.2 Oral argument was not requested and is not deemed necessary. Procedural Background On September 25, 2013, plaintiff filed an application for disability benefits under Title II and Title XVI of the Social Security Act. Plaintiff alleged that he became disabled on 1 Docket No. 14. 2 Docket No. 17.-1-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 1 of 19 September 25, 2013. Plaintiff alleges that he is disabled due to rectal, stomach, testicle, and back pain; bad kidneys; bad right wrist; bad knees; and depression. Plaintiff’s applications were denied initially on February 12, 2014. After a hearing on March 6, 2014, an administrative law judge (ALJ) denied plaintiff’s claims. On October 20, 2016, the Appeals Council denied plaintiff’s request for review, thereby making the ALJ’s August 8, 2015 decision the final decision of the Commissioner. On December 19, 2016, plaintiff commenced this action in which he asks the court to find that he is entitled to disability benefits. General Background Plaintiff was born on June 1, 1962. He was 52 years old at the time of the administrative hearing. Plaintiff has a GED. Plaintiff lives in an apartment. Plaintiff’s past relevant work includes work as a catering coordinator, janitor, and personal care attendant. The ALJ’s Decision The ALJ first determined that plaintiff "meets the insured status requirements of the Social Security Act through December 31, 2018."3 The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.4 3 Admin. Rec. at 13. 4 The five steps are as follows: Step one: Is the claimant presently engaged in substantial (continued...)-2-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 2 of 19 At step one, the ALJ found that plaintiff had "not engaged in substantial gainful activity since September 25, 2013, the alleged onset date...."5 At the time of the hearing, plaintiff was working as a care giver for one of his neighbors two hours a day, seven days a week,6 but his earnings did not rise to SGA levels.7 At step two, the ALJ found that plaintiff had "the following severe impairments: major joint dysfunction to the right knee and right wrist, degenerative joint disease of the 4 (...continued) gainful activity? If so, the claimant is not disabled. If not, proceed to step two. Step two: Is the claimant’s alleged impairment sufficiently severe to limit... h[is] ability to work? If so, proceed to step three. If not, the claimant is not disabled. Step three: Does the claimant’s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four. Step four: Does the claimant possess the residual functional capacity ("RFC") to perform... h[is] past relevant work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant’s RFC, when considered with the claimant’s age, education, and work experience, allow... h[im] to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). 5 Admin. Rec. at 13. 6 Admin. Rec. at 36. 7 Admin. Rec. at 13.-3-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 3 of 19 lumbar spine, depression, anxiety, and obesity."8 The ALJ determined that plaintiff’s hiatal hernia and diverticulitis were non-severe.9 The ALJ found plaintiff’s alcohol use disorder and cannabis use disorder non-severe because plaintiff "ceased use of these substances" and there were "no recurrent lapses" in the treatment record.10 The ALJ also found plaintiff’s hypertension non-severe.11 The ALJ noted that plaintiff had been diagnosed with autism but found that this was "a non-medically determinable impairment or, at best, non-severe."12 At step three, the ALJ found that plaintiff did "not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1...."13 The ALJ considered Listings 1.02 (major dysfunction of any joint), 1.04 (disorders of the spine), 12.04 (affective disorder), 12.06 (anxiety-related disorders), and 12.09 (substance addiction disorders).14 The ALJ considered the "paragraph B" criteria and found that plaintiff had mild restrictions in activities of daily living, mild difficulties in social functioning, moderate difficulties with regard to concentration, persistence, or pace, and no episodes of decompensation, which have been of 8 Admin. Rec. at 13. 9 Admin. Rec. at 14. 10 Admin. Rec. at 14. 11 Admin. Rec. at 14. 12 Admin. Rec. at 14. 13 Admin. Rec. at 14-15. 14 Admin. Rec. at 15.-4-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 4 of 19 extended duration.15 Thus, the ALJ found that the "paragraph B" criteria were not satisfied.16 The ALJ also found that the "paragraph C" criteria were not satisfied.17 "Between steps three and four, the ALJ must, as an intermediate step, assess the claimant’s RFC." Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009). The ALJ found that plaintiff had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he can frequently stoop, kneel, crouch, crawl, climb ramps or stairs, and engage in fine or gross manipulation with the right upper extremity; can occasionally interact with the general public and climb ladders, ropes, or scaffolds; should avoid moderate exposure to extreme cold and concentrated exposure to excessive vibration; and should only work in a low-stress job, defined as consisting of only occasional decionmaking or changes in the work setting.[18] The ALJ found plaintiff’s pain and symptom statements less than credible because plaintiff was motivated by secondary gain; he was resistant to treatment; his actions were inconsistent with his allegations; and there was evidence that he was exaggerating his symptoms.19 15 Admin. Rec. at 16. 16 Admin. Rec. at 16. 17 Admin, Rec. at 16. 18 Admin. Rec. at 17. 19 Admin. Rec. at 21.-5-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 5 of 19 The ALJ gave significant weight20 to Dr. Kesselring’s and Dr. Winn’s opinions.21 The ALJ also gave significant weight22 to Dr. Christensen’s opinion23 and Dr. Caldwell’s opinion.24 The ALJ gave little weight25 to Dr. DiGiulio’s opinion.26 The ALJ also gave little 20 Admin. Rec. at 21-22. 21 These opinions are discussed below in detail. 22 Admin. Rec. at 22. 23 On December 12, 2013, Ronald E. Christensen, M.D., examined plaintiff. Dr. Christensen opined that plaintiff appears to maximize his symptoms. He seems to have no difficulty sitting or standing. He can move about without difficulty. His gait is non antalgic. He does appear capable of doing at least light lifting and carrying. He has no dexterity issues in his hands other than some range of motion deficit in his right wrist. He has no problems speaking or seeing and no obvious impairment to travel. Admin. Rec. at 392. 24 On December 23, 2013, Jay Caldwell, M.D., opined that plaintiff could occasionally lift/carry 35 pounds; could frequently lift/carry 10 pounds; could stand/walk for 6 hours; could sit for 6 hours; could frequently push/pull with upper extremities; had no limitations as to climbing ramps/stairs, balancing, kneeling, and crawling; could frequently climb ladders/scaffolds, stoop, and crouch; was unlimited as to reaching and feeling; could frequently handle and finger on the right but was unlimited on the left; should avoid moderate exposure to extreme cold and vibration; and should avoid concentrated exposure to extreme heat, wetness, humidity, noise, fumes, odors, dust, gases, poor ventilation, and hazards. Admin. Rec. at 400-403. 25 Admin. Rec. at 22. 26 Dr. DiGiulio’s opinion is discussed below in detail.-6-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 6 of 19 weight27 to Michael Head’s opinion28 and to the testimony of plaintiff’s friend, Albert Dowd.29 Finally, the ALJ gave little weight30 to plaintiff’s GAF scores.31 At step four, the ALJ found that plaintiff was "unable to perform any past relevant work...."32 At step five, the ALJ found that "there are jobs that exist in significant numbers in the national economy that the claimant can perform," including working as a small parts assembler and a hotel housekeeper.33 This finding was based on the testimony of the vocational expert.34 27 Admin. Rec. at 23. 28 Mr. Head, who is employed by the Division of Vocational Rehabilitation, testified at the administrative hearing that based on Dr. DiGiulio’s evaluation, it was his opinion that plaintiff could not "be in competitive employment...." Admin. Rec. at 65. 29 Mr. Dowd completed a third-party function report on November 8, 2013. Admin. Rec. at 264-272. 30 Admin. Rec. at 23. 31 On November 13, 2013, plaintiff’s GAF score was 63. Admin. Rec. 362. His GAF score on August 8, 2014 was 53. Admin. Rec. at 431. And, his GAF score was 45 on both September 12, 2014 and November 9, 2015. Admin. Rec. at 497, 508. 32 Admin. Rec. at 25. 33 Admin. Rec. at 25-26. 34 Admin. Rec. at 26. Daniel Labrosse testified as the vocational expert at the administrative hearing. Admin. Rec. at 79-88.-7-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 7 of 19 The ALJ concluded that plaintiff "has not been under a disability, as defined in the Social Security Act, from September 25, 2013, through the date of this decision...."35 Standard of Review Pursuant to 42 U.S.C. § 405(g), the court has the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner...." The court "properly affirms the Commissioner’s decision denying benefits if it is supported by substantial evidence and based on the application of correct legal standards." Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). "Substantial evidence is'more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’" Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). "‘To determine whether substantial evidence supports the ALJ’s decision, [the court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ’s conclu-sion.’" Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than one reasonable interpretation, the court must uphold the Commissioner’s decision. Id. But, the Commissioner’s decision cannot be affirmed "‘simply by isolating a specific quantum of supporting evidence.’" Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). 35 Admin. Rec. at 26.-8-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 8 of 19 Discussion Plaintiff first argues that the ALJ erred in assessing his RFC. The ALJ found that plaintiff had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he can frequently stoop, kneel, crouch, crawl, climb ramps or stairs, and engage in fine or gross manipulation with the right upper extremity; can occasionally interact with the general public and climb ladders, ropes, or scaffolds; should avoid moderate exposure to extreme cold and concentrated exposure to excessive vibration; and should only work in a low-stress job, defined as consisting of only occasional decionmaking or changes in the work setting.[36] Plaintiff argues that this RFC was incomplete because it fails to account for his moderate limitations in maintaining concentration, persistence, or pace. Plaintiff argues that the ALJ accepted medical evidence that he had moderate difficulty maintaining concentra-tion, persistence, or pace, yet failed to include any limitations on concentration, persistence, or pace. The ALJ gave significant weight to Dr. Winn’s opinion. Dr. Winn, who was a non-examining source, opined that plaintiff had mild restrictions of activities of daily living; mild difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence or pace; and no repeated episodes of decompensation of extended duration.37 Dr. Winn also opined that plaintiff was moderately limited in his ability to carry 36 Admin. Rec. at 17. 37 Admin. Rec. at 100.-9-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 9 of 19 out detailed instructions; maintain attention and concentration for extended periods; complete a normal workday and workweek without interruptions from psychologically based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; and set realistic goals and make plans independently of others.38 The ALJ restricted plaintiff to a "low-stress job, defined as consisting of only occasional decionmaking or changes in the work setting."39 This was simply another way of the ALJ saying that plaintiff was limited to "simple" work as the ALJ made clear later in her decision when discussing the opinions of Dr. Winn and Dr. Kesselring,40 opinions to which the ALJ gave significant weight.41 The ALJ noted that Dr. Winn had opined that plaintiff had moderate limitations as to concentration, persistence, or pace and that Dr. Kesselring found that plaintiff’s mental symptoms would interfere with his capacity to work, but not significantly.42 The ALJ then stated that she was "accomodat[ing] these findings 38 Admin. Rec. at 106-107. 39 Admin. Rec. at 17. 40 Dr. Kesselring, who was an examining source, opined that plaintiff’s "psychological problems appear to interfere with his functioning in some ways, by reducing his energy, motivation, and desire to be around people, for example. These do not appear to significantly interfere with his ability to work; in fact, the loss of employment is probably a contributing factor to his depression." Admin. Rec. at 385. 41 Admin. Rec. at 21-22. 42 Admin. Rec. at 22.-10-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 10 of 19 [and] opinions[] by limiting the claimant to simple work in a low stress setting, with only occasional interaction with the public."43 This was error because limiting plaintiff to "simple work" does not adequately address his moderate limitations as to concentration, persistence, or pace. Defendant’s argument that there was no error here is not well taken. Defendant argues that the ALJ’s step three "paragraph B" finding that plaintiff had moderate limitations as to concentration, persistence, or pace is separate and independent of the ALJ’s RFC determination, which occurs between steps three and four. Defendant points out that the social security regulations state that [a]n assessment of your RFC complements the functional evaluation necessary for paragraphs B and C of the listings by requiring consideration of an expanded list of work-related capacities that may be affected by mental disorders when your impairment(s) is severe but neither meets nor is equivalent in severity to a listed mental disorder. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00A. As explained more fully in SSR 96-8p, [t]he adjudicator must remember that the limitations identified in the "paragraph B" and "paragraph C" criteria are not an RFC assessment but are used to rate the severity of mental impair-ment(s) at steps 2 and 3 of the sequential evaluation process. The mental RFC assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assess-ment by itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments[.] 43 Admin. Rec. at 22.-11-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 11 of 19 Defendant points out that the ALJ even quoted this exact language from SSR 96-8p in her decision,44 which defendant argues is an indication the ALJ realized that the RFC assessment was separate and distinct from her step three findings. But even though the RFC assessment is separate and distinct from the ALJ’s step three findings, that does not mean that the ALJ did not error here. "Numerous unpublished district court opinions have [found] error when the ALJ finds that a claimant has moderate limitation in maintaining concentration, persistence, or pace at step two [or three], but attempts to account for this in the RFC only by limiting the claimant to simple, repetitive work." Friesth v. Berryhill, No. CV 16-3535-KES, 2017 WL 901882, at *5 (C.D. Cal. Mar. 7, 2017). These courts have relied on Brink v. Comm’r Soc. Sec. Admin., Case No. 08–35331, 2009 WL 2512514 (9th Cir. Aug. 18, 2009), to reach this conclusion. In Brink, the ALJ "accepted medical evidence that Brink has moderate difficulty maintaining concentration, persistence, or pace. However, the ALJ’s initial hypothetical question to the vocational expert referenced only'simple, repetitive work,’ without including limitations on concentration, persistence or pace." Id. at *1. The court concluded that "[t]his was error." Id.; see also Lubin v. Comm’r of Soc. Sec. Admin., Case No. 11–35462, 2013 WL 485295, at *2 (9th Cir. Feb, 8, 2013) ("Although the ALJ found that the [claimant] suffered moderate difficulties in maintaining concentration, persistence, or pace, the ALJ erred by not including this limitation in the residual functional capacity determination"). 44 Admin. Rec. at 16-17.-12-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 12 of 19 Similarly here, the ALJ gave significant weight to the opinion of Dr. Winn, who opined that plaintiff had moderate limitations as to concentration, persistence, or pace; yet then the ALJ failed to account for these limitations in plaintiff’s RFC, instead only limiting him to work in a low-stress job, which the ALJ defined as consisting of only occasional decision making or changes in the work setting. Like the ALJs in Brink and Lubin, the ALJ here erred because the RFC was incomplete. This case is not analogous to Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008), as defendant argues. In Stubbs-Danielson, Dr. McCollum, an examining source, had found that Stubbs-Danielson had "good persistence, but a slow pace in thought and action" and he "observed that Stubbs–Danielson could follow three-step instructions." Id. at 1171. Dr. Eather, a non-examining source, noted Dr. McCollum’s observation about Stubbs-Danielson’s slow pace and opined that she "could perform simple work without public contact." Id. The "ALJ determined that Stubbs–Danielson'retain[ed] the residual functional capacity to perform simple, routine, repetitive sedentary work, requiring no interaction with the public.’" Id. "Stubbs–Danielson argue[d that] the RFC finding d[id] not capture the deficiency in pace and other mental limitations identified by" Dr. McCollum and Dr. Eather. Id. at 1173. The court rejected this argument. Id. The court explained that while Dr. McCollum had found that Stubbs-Danielson had moderate limitations in terms of pace, he did not assess whether Stubbs–Danielson could perform unskilled work on a sustained basis. Dr. Eather’s report did. Dr. Eather’s report, which also identified "a slow pace, both in thinking & actions" and several moderate limitations in other-13-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 13 of 19 mental areas, ultimately concluded Stubbs–Danielson retained the ability to "carry out simple tasks as evidenced by her ability to do housework, shopping, work on hobbies, cooking and reading." Id. The court concluded that "[t]he ALJ translated Stubbs–Danielson’s condition, including the pace and mental limitations, into the only concrete restrictions available to him—Dr. Eather’s recommended restriction to'simple tasks.’" Id. at 1174. But unlike Stubbs-Danielson, in which Dr. Eather actually opined that the claimant should be restricted to simple tasks, a limitation that Dr. Eather found would accommodate Stubbs-Danielson’s problems with pace, Dr. Winn did not find that plaintiff’s problems with concentration, persistence, or pace could be translated into a restriction to "simple tasks" or "simple work." The ALJ had no recommendations from any medical source that plaintiff’s moderate limitations as to concentration, persistence, or pace could be translated into a restriction to simple work, or a restriction to a low-stress job with little decision making and public contact. Here, the ALJ erred because in assessing plaintiff’s RFC, the ALJ failed to account for Dr. Winn’s opinion, an opinion to which she gave significant weight, that plaintiff had moderate restrictions as to concentration, persistence, or pace. In short, the ALJ’s RFC was incomplete. Plaintiff next argues that the ALJ erred in giving little weight to Dr. DiGiulio’s opinion. Dr. DiGiulio opined that "[b]ased on Mr. Jahnsen’s primary diagnosis of Autism Spectrum Disorder, I do not see him as a viable candidate for competitive employment, even-14-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 14 of 19 with vocational supports in place."45 Dr. DiGiulio was an examining source. "[T]he opinion of an examining doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record." Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). Dr. DiGiulio’s opinion contradicts Dr. Kesselring’s and Dr. Winn’s opinions. Thus, the ALJ was required to give specific and legitimate reasons for rejecting Dr. DiGiulio’s opinion. The ALJ rejected Dr. DiGiulio’s opinion because her opinion "goes to the legal conclusion of disability which is a finding exclusively reserved for the Commissioner", because Dr. DiGiulio "relied in part upon statistically invalid test results for her primary diagnosis of autism[,]" and because Dr. DiGiulio’s autism diagnosis was "dubious in the context of the evidence of record as a whole."46 The ALJ also found Dr. DiGiulio’s opinion undermined by the fact that plaintiff had been able to work at substantial gainful activity for years, despite the fact that, according to Dr. DiGiulio, his "autism would have been long-standing and not developed recently[.]"47 Plaintiff argues that none of these are legitimate reasons. 45 Admin. Rec. at 491. 46 Admin. Rec. at 22. 47 Admin. Rec. at 22-23.-15-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 15 of 19 As for the first reason, that Dr. DiGiulio’s opinion "goes to the legal conclusion of disability which is a finding exclusively reserved for the Commissioner[,]48 "[a] statement by a medical source that [a claimant is]'disabled’ or'unable to work’ does not mean that [defendant] will determine that [the claimant is] disabled." 20 C.F.R. § 404.1527(d)(1). But in Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012), the court found that the ALJ had erred in failing to consider a medical opinion that the plaintiff was "unlikely" to work full time because this opinion was "not a conclusory statement like those described in 20 C.F.R. § 404.1527(d)(1), but instead an assessment, based on objective medical evidence, of Hill’s likelihood of being able to sustain full time employment given the many medical and mental impairments Hill face[d.]" Similarly here, Dr. DiGiulio’s opinion that plaintiff was not a "viable candidate for competitive employment" was her assessment, based on a battery of objective tests,49 as to his ability to maintain employment. The ALJ’s first reason was not legitimate. As for the second reason, that Dr. DiGiulio relied, in part, on statistically invalid test results, Dr. DiGiulio did note that plaintiff’s Multiphasic Personality Inventory-2 48 Admin. Rec. at 22. 49 Dr. DiGiulio gave plaintiff the following tests: 1) the Wechsler Adult Intelligence Scale-Fourth Edition, 2) the Wide Range Achievement Test – Fourth Edition, 3) the Boston Naming Test, 4) the Visual Naming Test from the Multilingual Aphasia Examination, 5) the Gordon Diagnostic Vigilance Task, 6) the Distractibility Task, 7) selected subtests from the Delis-Kaplan Executive Functioning System, 8) the Rey Complex Figure copying task, 9) the Wisconsin Card Sorting test, 10) Beck Depression Inventory-II, 11) the Beck Hopeless-ness Inventory, 12) the Beck Anxiety Inventory, and 13) the Minnesota Multiphasic Personality Inventory-2 Restructured Format. Admin. Rec. at 486-489.-16-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 16 of 19 Restructured Format "profile is considered statistically invalid[.]"50 But this was not a legitimate reason to discount Dr. DiGiulio’s opinion, which was based on her diagnosis of autism, because Dr. DiGiulio explained that plaintiff’s "response set is not at all uncommon in individuals who are on the autistic spectrum and experiencing psychiatric symptoms."51 This reason was nothing more than the ALJ substituting her "lay opinion... for that of a professional[,]" which she may not do. Flores v. Colvin, No. ED CV 16-1020-PLA, 2017 WL 367408, at *6 (C.D. Cal. Jan. 24, 2017) (citing Tackett, 180 F.3d at 1102-03). As for the third reason, that Dr. DiGiulio’s autism diagnosis was "dubious" in light of the record as a whole, this was not a legitimate reason. Dr. DiGiulio was the only examining mental health source who reviewed the entire medical record prior to offering her assessment.52 Dr. Kesselring, on the other hand, indicated that he had "no records available for review."53 Moreover, the "record as a whole" in this case is minimal and Dr. DiGiulio’s examination of plaintiff appears to have been the most thorough. As for the fourth reason, plaintiff argues that Dr. DiGiulio’s opinion was not undermined by the fact that plaintiff had been able to work prior to his onset of disability date. Plaintiff argues that it is immaterial whether he worked prior to his onset date, that the 50 Admin. Rec. at 489. 51 Admin. Rec. at 489. 52 Admin. Rec. at 485. 53 Admin. Rec. at 382.-17-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 17 of 19 ALJ is only supposed to be determining whether he was unable to work as of the onset date. See Stoner v. Colvin, No. 3:16-CV-05373-DWC, 2016 WL 7228784, at *3 (W.D. Wash. Dec. 14, 2016) ("[p]laintiff’s work history prior to the alleged onset date is of limited probative value", particularly since the plaintiff "was in an accident and suffered a traumatic brain injury on the date of [the p]laintiff’s alleged onset of disability"). This was, however, a legitimate reason. If Dr. DiGiulio was correct that plaintiff’s autism would prevent him from working now, it stands to reason that his autism would have always prevented him from working, which simply has not been the case. The record shows that plaintiff consistently maintained competitive employment for a number of years. Assuming that Dr. DiGiulio’s diagnosis of autism was correct, her opinion that plaintiff could not work as a result would be undermined by plaintiff’s prior work history. Because this reason provides sufficient support for the ALJ’s rejection of Dr. DiGiulio’s opinion, the ALJ did not err in rejecting Dr. DiGiulio’s opinion. But because the ALJ erred in assessing plaintiff’s RFC, the court must decide whether to remand this matter for benefits or for further proceedings. The court follows a three-step analysis to determine whether a remand for an award of benefits would be appropriate. "First, [the court] must conclude that'the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion.’" Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014)). "Second, [the court] must conclude that'the record has been fully-18-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 18 of 19 developed and further administrative proceedings would serve no useful purpose.’" Id. (quoting Garrison, 759 F.3d at 1020). "Third, [the court] must conclude that'if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.’" Id. (quoting Garrison, 759 F.3d at 1021). But, "even if all three requirements are met, [the court] retain[s]'flexibility’ in determining the appropriate remedy" and "may remand on an open record for further proceedings'when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.’" Id. (quoting Garrison, 759 F.3d at 1021). Because the ALJ’s RFC was incomplete, a remand for further proceedings would be appropriate. Conclusion Based on the foregoing, the Commissioner’s decision is reversed and this matter is remanded for further proceedings. DATED at Anchorage, Alaska, this 13th day of July, 2017./s/H. Russel Holland United States District Judge-19-Case 1:16-cv-00019-HRH Document 19 Filed 07/13/17 Page 19 of 19

JUDGMENT. Signed by Judge H. Russel Holland on 7/13/17.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA MICHAEL OIVIND JAHNSEN, Plaintiff, Case Number 1:16-cv-00019-HRH v. NANCY A. BERRYHILL, acting Commissioner for Social Security, Defendant. JUDGMENT IN A CIVIL CASE JURY VERDICT. This action came before the court for a trial by jury. The issues have been tried and the jury has rendered its verdict. XX DECISION BY COURT. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED: THAT the Commissioner's decision is reversed and this matter is remanded to the Social Security Administration for further proceedings. APPROVED: s/H. Russel Holland H. Russel Holland United States District Judge Date: July 13, 2017 NOTE: Award of prejudgment interest, Lesley K. Allen costs and attorney's fees are governed Clerk of Court by D.Ak. LR 54.1, 54.3, and 58.1. [Jmt2-Basic-rev. 1-13-16} Case 1:16-cv-00019-HRH Document 20 Filed 07/14/17 Page 1 of 1

First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Michael Oivind Jahnsen.

HOWARD D. OLINSKY, Esq. New York No. 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA MICHAEL OIVIND JAHNSEN, Plaintiff, Civil Action No. 1:16-cv-00019-HRH v-NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------Motion for Attorney’s Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 COMES NOW Plaintiff, by his attorney, Howard D. Olinsky, moves the court for an award to be paid by the Defendant under the Equal Access to Justice Act, 28 USCS § 2412. Plaintiff may receive an award under the Equal Access to Justice Act because he is the prevailing party, is an individual whose net worth did not exceed two million dollars when the action was filed, and the position of the United States and at the agency was not substantially justified. There are no special circumstances in this case which make an award under the EAJA unjust. Case 1:16-cv-00019-HRH Document 21 Filed 10/06/17 Page 1 of 2 This motion is supported by a Declaration of Plaintiff’s attorney, attached time and cost records and an Affidavit and Waiver of Direct Payment by the plaintiff. Executed this October 6, 2017 Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky New York Bar # 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com To: Christopher J. Brackett, Esq. Special Assistant U.S. Attorney Office of General Counsel Social Security Administration 791 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3735 Fax: (206) 615-2545 E-mail: christopher.brackett@ssa.gov Case 1:16-cv-00019-HRH Document 21 Filed 10/06/17 Page 2 of 2

Proposed Order

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA MICHAEL OIVIND JAHNSEN, Plaintiff, Civil Action No. 1:16-cv-00019-HRH-v-NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------(Proposed) Order Awarding Attorney’s Fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) Before the Court is the Motion of Plaintiff, Michael Oivind Jahnsen, for award of attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Based on the pleadings as well as the position of the defendant commissioner, if any, and recognizing the Plaintiff’s waiver of direct payment and assignment of EAJA to his counsel, IT IS HEREBY ORDERED that attorney fees, expenses, and costs in the total amount of Five Thousand Seven Hundred Fifty-Seven Dollars and Twenty-Three Cents ($5,757.23) pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) are awarded to Plaintiff. Astrue v. Ratliff, 130 S.Ct. 2521 (2010). The Court hereby awards EAJA fees, broken down as follows: 1. Plaintiff is awarded $5,737.94 for paralegal and attorney’s fees under 28 U.S.C. § 2412(d); 2. Plaintiff is awarded $19.29 in expenses for Certified Mail for service of Summons and Complaint. If the U.S. Department of the Treasury determines that Plaintiff’s EAJA fees, expenses, and costs are not subject to offset allowed under the Department of the Treasury’s Offset Program (TOPS), then the check for EAJA fees, expenses, and costs shall be made payable to Plaintiff’s attorney, Howard D. Olinsky. Whether the check is made payable to Plaintiff or to Howard D. Olinsky, the check shall be mailed to Howard D. Olinsky at the following address: Case 1:16-cv-00019-HRH Document 21-1 Filed 10/06/17 Page 1 of 2 300 South State Street Suite 420 Syracuse, NY 13202 So ordered. Date: ________________ ______________________________ H. Russel Holland United States District Judge [proposed Order proffer: Howard D. Olinsky; copy to Christopher Brackett] Case 1:16-cv-00019-HRH Document 21-1 Filed 10/06/17 Page 2 of 2

DECLARATION of Howard D. Olinsky, Esq. re [21] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Michael Oivind Jahnsen.

HOWARD D. OLINSKY, Esq. New York No. 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA MICHAEL OIVIND JAHNSEN, Plaintiff, Civil Action No. 1:16-cv-00019-HRH v-NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------Attorney’s Affirmation In Support Of Fees Pursuant To the Equal Access to Justice Act, 28 U.S.C. § 2412 ________________________________________ STATE OF NEW YORK) COUNTY OF ONONDAGA) ss: Howard D. Olinsky, affirms and declares as follows: 1. I am an attorney licensed to practice law in the State of New York and admitted to the District of Alaska Federal Court Pro Hac Vice and I am the plaintiff’s attorney in this matter. 2. I make this affirmation knowing that the Court will rely upon it assessing any awards under the Equal Access to Justice Act disposed of under 28 USCS § 2412. 3. There are no special circumstances in this case which make an award under the EAJA unjust. Case 1:16-cv-00019-HRH Document 22 Filed 10/06/17 Page 1 of 3 4. The Court ordered on July 13, 2017 that the above-entitled case be remanded for further proceedings, under the fourth sentence of 42 U.S.C. § 405(g). 5. For the Equal Access to Justice Act, I am requesting an hourly rate of $195.95 for attorney time. See generally, http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 U.S.C.A 9th Circuit EAJA Table. If attorney fees are calculated at this rate for 25.2 hours of work performed, they total $4,937.94. 6. I am also requesting $100.00 per hour for 8 hours of paralegal time equaling $800.00. I am requesting $5,737.94 for Counsel fees which includes both attorney and paralegal time. 7. The time accounting is presented to the court in two fashions. The total compensable time spent by all professional staff (Exhibit A); the total compensable time spent by all attorneys (Exhibit B); the total compensable time spent by paralegals (Exhibit C). The attorneys involved in this case are as follows: Paul B. Eaglin, Esq., Howard D. Olinsky, Esq., Nathaniel Riley, Esq., and Edward A. Wicklund, Esq. The paralegals involved in working on this case are as follows: Shannon Persse, Michelle Callahan, Michael Smith, Vincent Wisehoon, and Kyrsten Gifford 8. I am requesting reimbursement of expenses in the amount $19.29 for Certified Mail for service of the summons and complaint as shown in Exhibit D. 9. All services on this case were rendered by your affiant and my professional staff, unless specifically noted otherwise. The attached records were created and stored in the firms Prevail Database, and are printed out and attached. The itemized time represents hours spent preparing and handling this case for U.S. District Court. Clerical time is not included in this petition or has been zeroed out. 10. Attached is the Fee Agreement duly executed by the plaintiff (Exhibit E). Case 1:16-cv-00019-HRH Document 22 Filed 10/06/17 Page 2 of 3 Waiver of Direct Payment of EAJA Fees 11. Attached is an Affidavit and Waiver of Direct Payment duly executed by the plaintiff (Exhibit F). With this Waiver, if Plaintiff owes a debt that qualifies under the Treasury Offset Program (31 USCS § 3716), any payment shall be made payable to the Plaintiff and delivered to the Plaintiff’s attorney. If the United States Department of Treasury determines that Plaintiff owes no debt subject to offset, the government will pay such fees directly to the Plaintiff’s attorney. Astrue v. Ratliff, 560 U.S. 586 (U.S. 2010). Executed this October 6, 2017 Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky New York Bar # 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Email: fedctgroup@windisability.com To: Christopher J. Brackett, Esq. Special Assistant U.S. Attorney Office of General Counsel Social Security Administration 791 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3735 Fax: (206) 615-2545 E-mail: christopher.brackett@ssa.gov Case 1:16-cv-00019-HRH Document 22 Filed 10/06/17 Page 3 of 3

Exhibit A All Professional Time

Exhibit A Ledger Jahnsen, Michael Oivind Date  Subject Hours Timekeeper 12/16/2016 Files received, reviewed and processed from referral source for Attorney review 0.6 Gifford, Kyrsten 12/16/2016 Telephone Call with Client re: Completed debt conference call, explained process 0.4 Smith, Michael P. 12/16/2016 Review decisions and evidence to determine whether to appeal case 1 Eaglin, Paul B. 12/16/2016 FDC prospect packet prepared for Client completion 0.6 Smith, Michael P. 12/16/2016 Telephone call with Client re: Assistance with In Forma Pauperis application 0.4 Smith, Michael P. 12/16/2016 FDC Prospect packet sent via Right Signature for client completion 0.2 Smith, Michael P. 12/19/2016 FDC packet forms returned via Right Signature, reviewed for completion 0.3 Smith, Michael P. 12/19/2016 Draft complaint, proposed summons, civil cover sheet, and letter to clerk 0.7 Eaglin, Paul B. 12/19/2016 Review motion for leave in forma pauperis, approve for filing 0.2 Eaglin, Paul B. 12/19/2016 Email initial case documents to Clerk for filing 0 Smith, Michael P. 12/19/2016 Federal Court-Accept Letter-New FDC Filing 0.3 Smith, Michael P. 12/23/2016 Review Order granting In Forma Pauperis status, directing service of process 0.1 Eaglin, Paul B. 12/23/2016 Review Summons Issued (text notice only) 0.1 Eaglin, Paul B. 12/28/2016 Received and processed Issued Summons via USPS 0.1 Smith, Michael P. 12/28/2016 Review Summons Issued via USPS 0.2 Eaglin, Paul B. 1/4/2017 Federal Court-Service of Process-Prepare Service packets USAO, OGC, AG 0.6 Callahan, Michelle 1/17/2017 Combine and file proof of service via CM/ECF 0.3 Callahan, Michelle 1/17/2017 Review summons executed, record answer due date for monitoring 0.2 Eaglin, Paul B. 1/26/2017 Review Notice of appearance Richard Pomeroy o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 1/27/2017 Review scheduling order, calendar deadlines on task pad 0.3 Eaglin, Paul B. 2/10/2017 Review Docket annotation re: Opening brief motion misc. relief, make note 0.1 Eaglin, Paul B. 3/9/2017 Review Notice of appearance Christopher Brackett o/b/o Nancy Berryhill 0.1 Eaglin, Paul B. 3/17/2017 Review answer to complaint 0.1 Eaglin, Paul B. 3/17/2017 Combine, OCR, and live bookmark Federal Court Transcript (536 pages) 0.6 Vincent Wisehoon 3/20/2017 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 4/5/2017 Draft and file motion for extension of time Plaintiff brief 0 Riley, Nathaniel 4/6/2017 Review order granting Plainitff's extension, update task pad 0 Riley, Nathaniel 4/13/2017 Telephone call with Client re: Status update, explained process 0.2 Vincent Wisehoon 4/14/2017 Review certified administrative record, take notes, organize facts 4 Riley, Nathaniel 4/17/2017 Drafting procedural section, drafting facts 4.2 Riley, Nathaniel 4/18/2017 Research issues and drafting arguments 7.7 Riley, Nathaniel 4/18/2017 Senior Attorney review draft brief, suggest edits 1 Eaglin, Paul B. 4/19/2017 Implement suggested edits, finalize and file brief (n/c for filing) 0.6 Riley, Nathaniel 4/20/2017 Draft and file motion for Pro Hac Vice admission 0 Olinsky, Howard D. 4/24/2017 Review order granting Pro Hac Vice application 0 Olinsky, Howard D. 5/18/2017 Review Defendant's response in opposition to motion (12 pages) 0.3 Olinsky, Howard D. 5/18/2017 Assign Attorney writer to access/write reply brief 0.2 Olinsky, Howard D. 5/25/2017 Review briefs and CAR, draft reply to opposition to motion to remand 2.2 Riley, Nathaniel 5/25/2017 Senior Attorney review draft reply brief, suggest edits 0.2 Wicklund, Edward A. 5/25/2017 Review and implement suggested edits, finalize and file reply brief (n/c filing) 0.2 Riley, Nathaniel 33.20 (Type = Time) and (Client = Michael Oivind Jahnsen)    Case 1:16-cv-00019-HRH Document 22-1 Filed 10/06/17 Page 2 of 3 Date  Subject Hours Timekeeper 5/31/2017 Federal Court-Fully Briefed Case Docs to Client 0.3 Vincent Wisehoon 6/16/2017 Telephone call with Client re: Status and address update 0.2 Vincent Wisehoon 7/14/2017 Review order granting motion to remand (19 pgs) 0.3 Olinsky, Howard D. 7/14/2017 Review Judgment in favor of Michael Oivind Jahnsen 0.1 Olinsky, Howard D. 7/20/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 7/20/2017 Federal Court-Remand Referral back to Referral Source 0.3 Callahan, Michelle 10/4/2017 EAJA Preparation 1.5 Persse, Shannon 10/4/2017 Review Timeslips Finalize EAJA Motion 0.5 Olinsky, Howard D. 10/6/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 33.20 (Type = Time) and (Client = Michael Oivind Jahnsen)    Case 1:16-cv-00019-HRH Document 22-1 Filed 10/06/17 Page 3 of 3

Exhibit B Attorney Time

Exhibit B Ledger Jahnsen, Michael Oivind Date  Subject Hours Timekeeper 12/16/2016 Review decisions and evidence to determine whether to appeal case 1 Eaglin, Paul B. 12/19/2016 Draft complaint, proposed summons, civil cover sheet, and letter to clerk 0.7 Eaglin, Paul B. 12/19/2016 Review motion for leave in forma pauperis, approve for filing 0.2 Eaglin, Paul B. 12/23/2016 Review Order granting In Forma Pauperis status, directing service of process 0.1 Eaglin, Paul B. 12/23/2016 Review Summons Issued (text notice only) 0.1 Eaglin, Paul B. 12/28/2016 Review Summons Issued via USPS 0.2 Eaglin, Paul B. 1/17/2017 Review summons executed, record answer due date for monitoring 0.2 Eaglin, Paul B. 1/26/2017 Review Notice of appearance Richard Pomeroy o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 1/27/2017 Review scheduling order, calendar deadlines on task pad 0.3 Eaglin, Paul B. 2/10/2017 Review Docket annotation re: Opening brief motion misc. relief, make note 0.1 Eaglin, Paul B. 3/9/2017 Review Notice of appearance Christopher Brackett o/b/o Nancy Berryhill 0.1 Eaglin, Paul B. 3/17/2017 Review answer to complaint 0.1 Eaglin, Paul B. 3/20/2017 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 4/5/2017 Draft and file motion for extension of time Plaintiff brief 0 Riley, Nathaniel 4/6/2017 Review order granting Plainitff's extension, update task pad 0 Riley, Nathaniel 4/14/2017 Review certified administrative record, take notes, organize facts 4 Riley, Nathaniel 4/17/2017 Drafting procedural section, drafting facts 4.2 Riley, Nathaniel 4/18/2017 Research issues and drafting arguments 7.7 Riley, Nathaniel 4/18/2017 Senior Attorney review draft brief, suggest edits 1 Eaglin, Paul B. 4/19/2017 Implement suggested edits, finalize and file brief (n/c for filing) 0.6 Riley, Nathaniel 4/20/2017 Draft and file motion for Pro Hac Vice admission 0 Olinsky, Howard D. 4/24/2017 Review order granting Pro Hac Vice application 0 Olinsky, Howard D. 5/18/2017 Review Defendant's response in opposition to motion (12 pages) 0.3 Olinsky, Howard D. 5/18/2017 Assign Attorney writer to access/write reply brief 0.2 Olinsky, Howard D. 5/25/2017 Review briefs and CAR, draft reply to opposition to motion to remand 2.2 Riley, Nathaniel 5/25/2017 Senior Attorney review draft reply brief, suggest edits 0.2 Wicklund, Edward A. 5/25/2017 Review and implement suggested edits, finalize and file reply brief (n/c filing) 0.2 Riley, Nathaniel 7/14/2017 Review order granting motion to remand (19 pgs) 0.3 Olinsky, Howard D. 7/14/2017 Review Judgment in favor of Michael Oivind Jahnsen 0.1 Olinsky, Howard D. 10/4/2017 Review Timeslips Finalize EAJA Motion 0.5 Olinsky, Howard D. 25.20 (Type = Time) and (Client = Michael Oivind Jahnsen) and ((Timekeeper = Eaglin, Paul B.) or (Timekeeper = Olinsky, Howard D.) o...    Case 1:16-cv-00019-HRH Document 22-2 Filed 10/06/17 Page 2 of 2

Exhibit C Paralegal Time

Exhibit C Ledger Jahnsen, Michael Oivind Date  Subject Hours Timekeeper 12/16/2016 Files received, reviewed and processed from referral source for Attorney review 0.6 Gifford, Kyrsten 12/16/2016 Telephone Call with Client re: Completed debt conference call, explained process 0.4 Smith, Michael P. 12/16/2016 FDC prospect packet prepared for Client completion 0.6 Smith, Michael P. 12/16/2016 Telephone call with Client re: Assistance with In Forma Pauperis application 0.4 Smith, Michael P. 12/16/2016 FDC Prospect packet sent via Right Signature for client completion 0.2 Smith, Michael P. 12/19/2016 FDC packet forms returned via Right Signature, reviewed for completion 0.3 Smith, Michael P. 12/19/2016 Email initial case documents to Clerk for filing 0 Smith, Michael P. 12/19/2016 Federal Court-Accept Letter-New FDC Filing 0.3 Smith, Michael P. 12/28/2016 Received and processed Issued Summons via USPS 0.1 Smith, Michael P. 1/4/2017 Federal Court-Service of Process-Prepare Service packets USAO, OGC, AG 0.6 Callahan, Michelle 1/17/2017 Combine and file proof of service via CM/ECF 0.3 Callahan, Michelle 3/17/2017 Combine, OCR, and live bookmark Federal Court Transcript (536 pages) 0.6 Vincent Wisehoon 4/13/2017 Telephone call with Client re: Status update, explained process 0.2 Vincent Wisehoon 5/31/2017 Federal Court-Fully Briefed Case Docs to Client 0.3 Vincent Wisehoon 6/16/2017 Telephone call with Client re: Status and address update 0.2 Vincent Wisehoon 7/20/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 7/20/2017 Federal Court-Remand Referral back to Referral Source 0.3 Callahan, Michelle 10/4/2017 EAJA Preparation 1.5 Persse, Shannon 10/6/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 8.00 (Type = Time) and (Client = Michael Oivind Jahnsen) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Gifford, Kyrsten) o...    Case 1:16-cv-00019-HRH Document 22-3 Filed 10/06/17 Page 2 of 2

Exhibit D Expenses

Exhibit D Ledger Jahnsen, Michael Oivind Date  Subject Amount Timekeeper 1/4/2017 Certified Mail Expense Summons and Complaint packets to Defendant's offices $19.29 Callahan, Michelle $19.29 (Client = Michael Oivind Jahnsen) and (Category = FC Expense-)    Case 1:16-cv-00019-HRH Document 22-4 Filed 10/06/17 Page 2 of 2

Exhibit E Fee Agreement

Exhibit E FEE AGREEMENT-FEDERAL COURT SOCIAL SECURITY APPEAL 1. SCOPE OF REPRESENTATION: I hereby employ the attorneys at Olinsky Law Group ("OLG" or "my federal court attorney") to represent me during a federal court review of my Social Security case. The scope of representation consists of appealing a final decision that I am not disabled, which was made by the Social Security Administration ("SSA"), to a United States District Court. Representation may also include appealing an unfavorable decision from a United States District Court to a United States Court of Appeals; however an appeal to a United States Court of Appeals is at the discretion of my federal court attorney. References to "federal court" in this agreement will include representation before a United States Court of Appeals if my case is appealed to that court. 2. ATTORNEY’S FEE: I understand that if my federal court attorney wins my case in federal court, which means that either my case is remanded to the SSA for further proceedings pursuant to sentence 4 or sentence 6 of § 205(g) of the Social Security Act and/or the federal court enters a directed finding that I am disabled, my federal court attorney will petition for an award of attorney fees for work performed at the federal court(s) pursuant to the Equal Access to Justice Act ("EAJA"). I understand that an EAJA award is paid by the government, does not come from my back benefits, and any award must be approved by the federal court. I hereby assign any court-awarded EAJA attorney fees to my federal court attorney. I agree that any such payment belongs to my federal court attorney. I authorize my federal court attorney to settle the amount of any EAJA fee using his or her professional judgment. I agree to cooperate in any way that I can so that my federal court attorney’s full fee is authorized. If my federal court attorney receives an EAJA check made payable to me, I hereby explicitly give authority to my federal attorney to endorse the check with my name and deposit it in my federal court attorney’s general office account. I hereby state that my net worth is less than $2,000,000.00. I understand that my federal court attorney may receive the EAJA award as his or her sole compensation for representing me in court. However, I understand that my federal court attorney also has the right to ask the court to award any remaining balance of 25% of my past-due benefits ("406(b) fees") for representing me in federal court. My federal court attorney has this right if the representative, who represents me during remand proceedings, does not collect the full 25% of my past-due benefits during a remand proceeding; and also if (1) my case is remanded pursuant to sentence 6 of § 205(g) of the Social Security Act; or (2) my case is remanded pursuant to sentence 4 of § 205(g) of the Social Security Act and my federal court attorney is unable to collect the authorized EAJA award due to any unpaid federal debt that I may have at the conclusion of the federal case; or if I failed to effectively assign the EAJA award to my federal court attorney; or at the discretion of my federal court attorney. I understand that if the court awards my federal court attorney a fee out of my past-due benefits and also awards an EAJA fee for that same work, my federal court attorney must refund the smaller fee to me. I understand that the SSA will withhold my past-due benefits and will send any approved fee to my federal court attorney. If SSA, through error, fails to withhold my federal court attorney’s fee and pays the legal fee to me by mistake (which sometimes happens), I will pay my federal court attorney promptly from the back benefits I receive. If my retroactive payment is released in installments, I agree that I will pay the entire authorized federal court attorney’s fee from the first installment. I understand that the total fee could amount to many thousands of dollars. I understand that my federal court attorney may seek the maximum fee this contract allows under the law. My federal court attorney does not promise to minimize either the EAJA or 406(b) fees he or she seeks and/or receives. Case 1:16-cv-00019-HRH Document 22-5 Filed 10/06/17 Page 2 of 3 I understand that if my case loses in federal court, which means that the federal court affirms the decision of the SSA that I am not disabled, my federal court attorney is not entitled to a fee for his or her time spent representing me in federal court. 3. CONSENT TO EXCHANGE OF INFORMATION: I agree that the OLG and any representative(s) that represented me before SSA for the case that is being appealed to federal court may share (1) my contact information, (2) information regarding my case in federal court, including documents filed in court, (3) my SSA exhibit file including all my medical records, and (4) information regarding the status of any remand proceedings. I agree that if a federal court remands my case, the OLG may refer my case to Alaska Legal Services Corporation for possible representation on remand. I agree that the OLG may share (1) my contact information, (2) information regarding my federal court case, including documents filed in court, (3) my SSA exhibit file including all my medical records, and (4) information regarding the status of any remand proceedings, with Alaska Legal Services Corporation. I acknowledge that the United States District Court will issue a written decision on my case, and that decision is a matter of public record which may be published on the internet by case reporting services. 4. TERMINATION OF AGREEMENT AND CONSENT TO PROVIDE UPDATED CONTACT INFORMATION: This agreement terminates at the option of my federal court attorney if we lose at the United States District Court. My federal court attorney will mail me a copy of the court’s final decision at the last address I provide my federal court attorney. I agree to inform my federal court attorney each time I change my mailing address and/or telephone number. 5. I HAVE NOT BEEN PROMISED THAT I WILL WIN: My federal court attorney has not promised that I will win my case. I recognize that I may lose my case. I am aware that a federal court may take several years to decide my case. This agreement supersedes and replaces any previous fee agreement I may have signed with any attorney for representation at Federal Court. It does not supersede or replace any fee agreement made for representation before the Social Security Administration. Dated: December 16, 2016 Signature: __________________________________ Claimant Name: Michael Oivind Jahnsen Claimant Social Security Number: Dated: __________ Signature: ___________________________________ Howard D. Olinsky, Esq. Case 1:16-cv-00019-HRH Document 22-5 Filed 10/06/17 Page 3 of 3

Exhibit F Affirmation and Waiver of Direct Payment of EAJA Fees

Exhibit F UNITED STATES DISTRICT COURT DISTRICT OF ALASKA ({[ERROR]} DIVISION)--------------------------------------------------------------MICHAEL OIVIND JAHNSEN, AFFIRMATION AND WAIVER OF DIRECT PAYMENT Plaintiff, OF EAJA FEES v. Civil Action No.: _________________ CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.---------------------------------------------------------------Michael Oivind Jahnsen, hereby states the following: 1. I am the Plaintiff in the above-captioned matter. 2. That I have retained Olinsky Law Group as my attorney for the above-captioned matter. 3. At the time that this action was begun, my net worth was less than $2,000,000.00. 4. If my case is remanded by the Federal Court, either by stipulation or order, my attorney may file for attorney’s fees pursuant to the Equal Access to Justice Act (EAJA). I understand that the EAJA fees are paid by the Federal Government and do not come from any back benefits owed to me by the Social Security Administration. 5. I hereby agree to waive direct payment of the EAJA fees and assign said fees to be paid directly to my attorney. 6. I understand that my attorney may still petition the Administration for legal fees for his or her work before the Administration that will be paid from my back benefits. As the Plaintiff in this case, I hereby declare and affirm under penalty of perjury that the information above is true and correct. Executed on December 16, 2016. __________________________ Michael Oivind Jahnsen Plaintiff Case 1:16-cv-00019-HRH Document 22-6 Filed 10/06/17 Page 2 of 2

Memorandum In Support

HOWARD D. OLINSKY, Esq. New York No. 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA MICHAEL OIVIND JAHNSEN, Plaintiff, Civil Action No. 1:16-cv-00019-HRH v-NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------Memorandum in Support of Plaintiff’s Petition for Counsel Fee Allowance Under Equal Access to Justice Act 1. This is a memorandum in support of a petition for an award of Counsel Fees under the Equal Access to Justice Act, 28 USCS § 2412 "EAJA." 2. An EAJA award is available to a "prevailing party" in a case against the Federal Government, including Social Security cases, in the following instances: (a) When and if the plaintiff actually "prevails"; (b) The Government’s position in litigation is "not substantially justified"; (c) Plaintiff is a party whose net assets are worth less than two million dollars; and Case 1:16-cv-00019-HRH Document 22-7 Filed 10/06/17 Page 1 of 3 (d) The case has concluded with a "final order" which is non-appealable, or will not be appealed. 3. Addressing these elements in reverse order, it is clear that the Plaintiff has met the burden necessary to receive EAJA fees. (a) Plaintiff’s net worth did not exceed $2,000,000.00 when this action was filed. (b) After service of the summons and complaint and submission of a brief by the both parties, Chief District Judge Hon. H. Russel Holland signed an Order on July 13, 2017 remanding this matter to the Commissioner for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g). (c) Judgment was entered on July 13, 2017. The Judgment has not been appealed. (d) Plaintiff has prevailed because the District Court remanded the case under sentence four of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292 (U.S. 1993) 4. The commissioner was not substantially justified. As the U. S. Supreme Court has held, "the required'not substantially justified’ allegation imposes no proof burden on the fee applicant. It is, as its text conveys, nothing more than an allegation or pleading requirement. The burden of establishing'that the position of the United States was substantially justified’ … must be shouldered by the Government." Scarborough v. Principi, 541 U. S. 401, 414 (2004). While the fee applicant such as Plaintiff is required to "show" three of the four elements—prevailing party status, financial eligibility, and amount sought—Plaintiff need only "to allege" that the position of the government is not substantially justified. Id. WHEREFORE, because all four elements of an allowable application for EAJA fees have been proven or alleged, petitioner humbly prays that the Court issue an order: Case 1:16-cv-00019-HRH Document 22-7 Filed 10/06/17 Page 2 of 3 1. Awarding an Equal Access to Justice Act Counsel Fee for $5,737.94; and 2. If the Plaintiff has no debt registered with the Department of Treasury subject to offset that the fees be made payable to the attorney; and 3. Awarding Expenses in the amount of $19.29. I declare under the penalty of perjury that the foregoing is true and correct. Executed this October 6, 2017 Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky New York Bar # 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Email: fedctgroup@windisability.com To: Christopher J. Brackett, Esq. Special Assistant U.S. Attorney Office of General Counsel Social Security Administration 791 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3735 Fax: (206) 615-2545 E-mail: christopher.brackett@ssa.gov Case 1:16-cv-00019-HRH Document 22-7 Filed 10/06/17 Page 3 of 3

Certificate of Service

HOWARD D. OLINSKY, Esq. New York No. 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedct@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA MICHAEL OIVIND JAHNSEN, Plaintiff, Civil Action No. 1:16-cv-00019-HRH v-NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------CERTIFICATE OF SERVICE I certify that I have electronically moved for EAJA fees with the Clerk of the District Court using the CM/ECF system, which sent notification of such filing to: To: Christopher J. Brackett, Esq. Special Assistant U.S. Attorney Office of General Counsel Social Security Administration 791 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3735 Fax: (206) 615-2545 E-mail: christopher.brackett@ssa.gov October 6, 2017/s/Howard D. Olinsky Howard D. Olinsky, Esq. Case 1:16-cv-00019-HRH Document 22-8 Filed 10/06/17 Page 1 of 1

RESPONSE to Motion (Non-Opposition) re [21] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Nancy A. Berryhill.

1 BRYAN SCHRODER 2 Acting United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 CHRISTOPHER J. BRACKETT Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone: (206) 615-2545 Fax: (206) 615-2531 11 christopher.brackett@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 MICHAEL OIVIND JAHNSEN, Case No. 1:16-cv-00019-HRH 16 Plaintiff, 17 DEFENDANT’S RESPONSE TO vs. PLAINTIFF’S MOTION FOR ATTORNEY 18 FEES NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. Defendant, the Commissioner of Social Security, files this response to Plaintiff’s request 21 for an award of attorney’s fees pursuant to 28 U.S.C. § 2412 as set forth in Plaintiff’s Motion 22 (Docket #21). The Commissioner has given substantive consideration to the merits of Plaintiff’s 23 24 Page 1 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY FEES-[1:16-cv-00019-HRH] Case 1:16-cv-00019-HRH Document 23 Filed 10/17/17 Page 1 of 3 1 request and found no basis to object. Therefore, Defendant has no objection to this request and 2 will defer to the Court’s assessment of the matter. 3 DATED this 17th day of October 2017. 4 Respectfully submitted, 5 BRYAN SCHRODER 6 Acting United States Attorney 7 RICHARD L. POMEROY Assistant United States Attorney 8 MATHEW W. PILE 9 Acting Regional Chief Counsel, Seattle, Region X 10 s/Christopher J. Brackett CHRISTOPHER J. BRACKETT 11 Special Assistant United States Attorney Office of the General Counsel 12 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 13 Seattle, WA 98104-7075 Telephone: (206) 615-2545 14 Fax: (206) 615-2531 christopher.brackett@ssa.gov 15 16 17 18 19 20 21 22 23 24 Page 2 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY FEES-[1:16-cv-00019-HRH] Case 1:16-cv-00019-HRH Document 23 Filed 10/17/17 Page 2 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Defendant’s Response to Plaintiff’s Motion for 3 Attorney Fees was filed with the Clerk of the Court on October 17, 2017, using the CM/ECF 4 system, which will send notification of such filing to the following: Howard D. Olinsky and Paul 5 B. Eaglin. 6 7 s/Megan Moore MEGAN MOORE 8 Paralegal Specialist Office of the General Counsel 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 3 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY FEES-[1:16-cv-00019-HRH] Case 1:16-cv-00019-HRH Document 23 Filed 10/17/17 Page 3 of 3

ORDER granting [21] Motion for Attorney Fees. Signed by Judge H. Russel Holland on 10/24/17.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA MICHAEL OIVIND JAHNSEN,)) Plaintiff,)) vs.)) NANCY A. BERRYHILL, Acting) Commissioner of Social Security,) No. 1:16-cv-0019-HRH) Defendant.) _______________________________________) ORDER Award of Attorney Fees Before the court is the motion of plaintiff, Michael Oivind Jahnsen, for an award of attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d).1 Based on the pleadings as well as the position of the defendant commissioner,2 and recognizing plaintiff’s waiver of direct payment and assignment of EAJA to his counsel, IT IS HEREBY ORDERED that attorney fees, expenses, and costs in the total amount of Five Thousand, Seven Hundred Fifty-Seven Dollars and Twenty-Three Cents ($5,757.23) pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d), are awarded to plaintiff. Astrue v. Ratliff, 130 S.Ct. 2521 (2010). The court hereby awards EAJA fees, broken down as follows: 1 Docket No. 21. 2 Docket No. 23. Order – Award of Attorney Fees-1-Case 1:16-cv-00019-HRH Document 24 Filed 10/24/17 Page 1 of 2 1. Plaintiff is awarded $5,737.94 for paralegal and attorney fees under 28 U.S.C. § 2412(d); 2. Plaintiff is awarded $19.29 in expenses for certified mail for service of summons and complaint. If the U.S. Department of the Treasury determines that plaintiff’s EAJA fees, expenses, and costs are not subject to offset allowed under the Department of the Treasury’s Offset Program (TOPS), then the check for EAJA fees, expenses, and costs shall be made payable to plaintiff’s attorney, Howard D. Olinsky. Whether the check is made payable to plaintiff or to Howard D. Olinsky, the check shall be mailed to Howard D. Olinsky at the following address: 300 South State Street – Suite 420 Syracuse, NY 13202 DATED at Anchorage, Alaska, this 24th day of October, 2017./s/H. Russel Holland United States District Judge Order – Award of Attorney Fees-2-Case 1:16-cv-00019-HRH Document 24 Filed 10/24/17 Page 2 of 2

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Description
1
12/19/2016
COMPLAINT against Carolyn W. Colvin, filed by Michael Oivind Jahnsen.
1
Exhibit A - SSA Letter
1 Attachment
2
12/19/2016
Civil Cover Sheet
3
12/19/2016
MOTION for Leave to Proceed in forma pauperis by Michael Oivind Jahnsen.
4
12/19/2016
Unissued summons re Defendant C. Colvin
1
Unissued Summons re Defendant USAG
2
Unissued Summons re Defendant USAO
2 Attachments
5
12/22/2016
ORDER granting 3 Mot for Leave to Proceed IFP; svc to be completed w/i 90 days from filing of cmplt, def has 60 days after receipt of sums & cmplt to respond. Signed by Judge H. Russel Holland on 12/22/16. cc: Finance
12/22/2016
Summons Issued as to Carolyn W. Colvin, U.S. Attorney and U.S. Attorney General (Text entry; no document attached.)
6
01/17/2017
SUMMONS Returned Executed by Michael Oivind Jahnsen. Carolyn W. Colvin served on 1/11/2017, answer due 3/13/2017.
7
01/25/2017
NOTICE of Appearance by Richard L. Pomeroy on behalf of Carolyn W. Colvin
8
01/26/2017
SOCIAL SECURITY SCHEDULING ORDER: agency record due w/i 60 days of def's appearance; plf's opening brf due w/i 30 days after filing of agency record; def's ans brf due w/i 30 days after svc of plf's opening brf; plf's reply brf due w/i 14 days after svc of def's brf. Signed by Judge H. Russel Holland on 1/26/17.
02/09/2017
Docket Annotation: Nancy A. Berryhill, represented by Richard L. Pomeroy substituted for Carolyn W. Colvin (acting Commissioner of Social Security) pursuant to FRCvP 25(d)(1) (Text entry; no document attached.)
9
03/09/2017
NOTICE of Appearance by Christopher John Brackett on behalf of Nancy A. Berryhill
10
03/13/2017
ANSWER to 1 Complaint by Nancy A. Berryhill.
11
03/13/2017
Notice of Lodging Administrative Record
1
001 Certification Page
2
002 Court Transcript Index
3
003 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable
4
004 Payment Documents and Decisions
5
005 Jurisdictional Documents and Notices
6
006 Non Disability Related Development
7
007 Disability Related Development
8
008 Medical Records
8 Attachments
12
04/05/2017
MOTION for Extension of Time to File (Unopposed) by Michael Oivind Jahnsen.
1
Proposed Order
1 Attachment
13
04/06/2017
ORDER granting 12 Mot for Ext of Time to File Opening Brf; brf due 4/19/17.
14
04/19/2017
MOTION to Remand to Social Security by Michael Oivind Jahnsen.
15
04/20/2017
MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Howard D. Olinsky. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2318864.) by Michael Oivind Jahnsen.
1
{{1}} Certificate of Good Standing
1 Attachment
16
04/21/2017
ORDER granting [15] Motion for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney.
17
05/17/2017
RESPONSE in Opposition re [14] MOTION to Remand to Social Security filed by Nancy A. Berryhill.
18
05/25/2017
REPLY to Response to Motion re [14] MOTION to Remand to Social Security filed by Michael Oivind Jahnsen.
19
07/13/2017
ORDER granting [14] Motion to Remand. The Commissioner's decision is reversed and this matter is remanded for further proceedings. Signed by Judge H. Russel Holland on 7/13/17.
20
07/14/2017
JUDGMENT. Signed by Judge H. Russel Holland on 7/13/17.
21
10/06/2017
First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Michael Oivind Jahnsen.
1
Proposed Order
1 Attachment
22
10/06/2017
DECLARATION of Howard D. Olinsky, Esq. re [21] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Michael Oivind Jahnsen.
1
Exhibit A All Professional Time
2
Exhibit B Attorney Time
3
Exhibit C Paralegal Time
4
Exhibit D Expenses
5
Exhibit E Fee Agreement
6
Exhibit F Affirmation and Waiver of Direct Payment of EAJA Fees
7
Memorandum In Support
8
Certificate of Service
8 Attachments
23
10/17/2017
RESPONSE to Motion (Non-Opposition) re [21] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Nancy A. Berryhill.
24
10/24/2017
ORDER granting [21] Motion for Attorney Fees. Signed by Judge H. Russel Holland on 10/24/17.
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