Jones v. Commissioner of Social Security Administration
Court Docket Sheet

District of Arizona

2:2015-cv-02528 (azd)

ORDER - The Commissioner's decision is VACATED and this matter is REMANDED to the Commissioner for further administrative proceedings as set forth in this Order. FURTHER ORDERED directing the Clerk of the Court to enter judgment accordingly. See document for complete details. Signed by Magistrate Judge Michelle H Burns on 3/24/2017.

Case 2:15-cv-02528-MHB Document 17 Filed 03/24/17 Page 1 of 12 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tamara Demia Jones,) CIV 15-02528-PHX-MHB) 10 Plaintiff,) ORDER) 11 vs.)) 12 Commissioner of Social Security) Administration,) 13) Defendant.) 14) 15 Pending before the Court is Plaintiff Tamara Demia Jones’s appeal from the Social 16 Security Administration’s final decision to deny her claim for disability insurance benefits 17 and supplemental security income. After reviewing the administrative record and the 18 arguments of the parties, the Court now issues the following ruling. 19 I. PROCEDURAL HISTORY 20 Plaintiff filed applications for disability insurance benefits and supplemental security 21 income alleging disability beginning January 1, 2007 (Transcript of Administrative Record 22 ("Tr.") at 173-74, 185-90.) Her applications were denied initially and on reconsideration. 23 (Tr. at 72-89, 90-106.) Thereafter, Plaintiff requested a hearing before an administrative law 24 judge. (Tr. at 122-23.) A hearing was held on June 16, 2014, (Tr. at 40-72), and the ALJ 25 issued a decision finding that Plaintiff was not disabled (Tr. at 20-39.) The Appeals Council 26 denied Plaintiff’s request for review (Tr. at 1-6.), making the ALJ’s decision the final 27 decision of the Commissioner. Plaintiff then sought judicial review of the ALJ’s decision 28 pursuant to 42 U.S.C. § 405(g). Case 2:15-cv-02528-MHB Document 17 Filed 03/24/17 Page 2 of 12 1 II. STANDARD OF REVIEW 2 The Court must affirm the ALJ’s findings if the findings are supported by substantial 3 evidence and are free from reversible legal error. See Reddick v. Chater, 157 F.3d 715, 720 4 (9th Cir. 1998); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Substantial evidence 5 means "more than a mere scintilla" and "such relevant evidence as a reasonable mind might 6 accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 7 (1971); see Reddick, 157 F.3d at 720. 8 In determining whether substantial evidence supports a decision, the Court considers 9 the administrative record as a whole, weighing both the evidence that supports and the 10 evidence that detracts from the ALJ’s conclusion. See Reddick, 157 F.3d at 720. "The ALJ 11 is responsible for determining credibility, resolving conflicts in medical testimony, and for 12 resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see 13 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). "If the evidence can reasonably 14 support either affirming or reversing the [Commissioner’s] conclusion, the court may not 15 substitute its judgment for that of the [Commissioner]." Reddick, 157 F.3d at 720-21. 16 III. THE ALJ’S FINDINGS 17 In order to be eligible for disability or social security benefits, a claimant must 18 demonstrate an "inability to engage in any substantial gainful activity by reason of any 19 medically determinable physical or mental impairment which can be expected to result in 20 death or which has lasted or can be expected to last for a continuous period of not less than 21 12 months." 42 U.S.C. § 423(d)(1)(A). An ALJ determines a claimant’s eligibility for 22 benefits by following a five-step sequential evaluation: 23 (1) determine whether the applicant is engaged in "substantial gainful activity"; 24 (2) determine whether the applicant has a medically severe impairment or combination of impairments; 25 (3) determine whether the applicant’s impairment equals one of a number of listed 26 impairments that the Commissioner acknowledges as so severe as to preclude the applicant from engaging in substantial gainful activity; 27 28-2-Case 2:15-cv-02528-MHB Document 17 Filed 03/24/17 Page 3 of 12 1 (4) if the applicant’s impairment does not equal one of the listed impairments, determine whether the applicant is capable of performing his or her past relevant 2 work; 3 (5) if the applicant is not capable of performing his or her past relevant work, determine whether the applicant is able to perform other work in the national 4 economy in view of his age, education, and work experience. 5 See Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (citing 20 C.F.R. §§ 404.1520, 6 416.920). At the fifth stage, the burden of proof shifts to the Commissioner to show that the 7 claimant can perform other substantial gainful work. See Penny v. Sullivan, 2 F.3d 953, 956 8 (9th Cir. 1993). 9 At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful 10 activity since January 1, 2007 – the alleged onset date. (Tr. at 25.) At step two, she found 11 that Plaintiff had the following severe impairments: diabetes mellitus; asthma; peripheral 12 neuropathy of lower extremities; mild degenerative disc disease of the cervical spine; mild 13 sclerosis of the lumbar spine; obesity; affective disorder; anxiety disorder and purported 14 dyslexia. (Tr. at 25.) At step three, the ALJ stated that Plaintiff did not have an impairment 15 or combination of impairments that met or medically equaled an impairment listed in 20 16 C.F.R. Part 404, Subpart P, Appendix 1 of the Commissioner’s regulations. (Tr. at 26.) 17 After consideration of the entire record, the ALJ found that Plaintiff retained "the residual 18 functional capacity to perform less than a full range of sedentary work as defined 20 CFR 19 404.1567(a) and 416.967(a). The claimant can lift and carry ten pounds occasionally and ten 20 pounds frequently. She can stand and/or walk two hours out of an eight-hour workday. She 21 can sit six hours out of an eight-hour workday. She must use a cane as needed. She can 22 frequently climb stairs, but is precluded from climbing ladders, ropes or scaffolds. She is 23 precluded from balancing. She can frequently stoop and crouch. She is precluded from 24 kneeling and crawling. She is precluded from overhead work with the right upper extremity. 25 She can frequently perform gross manipulation with right upper extremity. She must avoid 26 concentrated exposure to fumes, odors, dust and other pulmonary irritants. She is limited to 27 simple routine tasks and only non-intense interaction with the public and co-workers. She is 28 precluded from jobs requiring teamwork and hypervigilance. She cannot be responsible for-3-Case 2:15-cv-02528-MHB Document 17 Filed 03/24/17 Page 4 of 12 1 the safety of others. She is limited to only low stress jobs, which are defined as having only 2 occasional changes in the work setting and work-related decisions. She is limited to jobs 3 requiring only basic reading levels." (Tr. at 26-27.) The ALJ determined that Plaintiff was 4 unable to perform any past relevant work. (Tr. at 33.) The ALJ concluded that Plaintiff has 5 not been under a disability from January 1, 2007, through the date of her decision. (Tr. at 35.) 6 IV. DISCUSSION 7 In her brief, Plaintiff contends that the ALJ erred by failing to properly weigh medical 8 source opinion evidence; Plaintiff claims that neither (A) the physical RFC1 nor (B) the 9 mental RFC are supported by substantial evidence. 10 "The ALJ is responsible for resolving conflicts in the medical record." Carmickle v. 11 Comm’r, Soc. Sec. Admin., 533 F.3d at 1164. Such conflicts may arise between a treating 12 physician’s medical opinion and other evidence in the claimant’s record. In weighing 13 medical source opinions in Social Security cases, the Ninth Circuit distinguishes among three 14 types of physicians: (1) treating physicians, who actually treat the claimant; (2) examining 15 physicians, who examine but do not treat the claimant; and (3) non-examining physicians, 16 who neither treat nor examine the claimant. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 17 1995). The Ninth Circuit has held that a treating physician’s opinion is entitled to 18 "substantial weight." Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 19 2009) (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). A treating physician’s 20 opinion is given controlling weight when it is "well-supported by medically accepted clinical 21 and laboratory diagnostic techniques and is not inconsistent with the other substantial 22 evidence in [the claimant’s] case record." 20 C.F.R. § 404.1527(d)(2). On the other hand, 23 if a treating physician’s opinion "is not well-supported" or "is inconsistent with other 24 substantial evidence in the record," then it should not be given controlling weight. Orn v. 25 Astrue, 495 F.3d 624, 631 (9th Cir. 2007). 26 1 27 "Residual functional capacity" is defined as the most a claimant can do after considering the effects of physical and/or mental limitations that affect the ability to perform 28 work-related tasks.-4-Case 2:15-cv-02528-MHB Document 17 Filed 03/24/17 Page 5 of 12 1 If a treating physician’s opinion is not contradicted by the opinion of another 2 physician, then the ALJ may discount the treating physician’s opinion only for "clear and 3 convincing" reasons. See Carmickle, 533 F.3d at 1164 (quoting Lester, 81 F.3d at 830). If 4 a treating physician’s opinion is contradicted by another physician’s opinion, then the ALJ 5 may reject the treating physician’s opinion if there are "specific and legitimate reasons that 6 are supported by substantial evidence in the record." Id. (quoting Lester, 81 F.3d at 830). 7 Plaintiff contends that the ALJ erred by failing to properly weigh medical source 8 opinion evidence. Specifically, Plaintiff argues that the ALJ improperly rejected the opinion 9 of treating physician, Edward Sayegh, M.D., relying instead upon the opinions from state 10 agency doctors who completed assessment forms as part of the initial and reconsideration 11 determinations that were based on limited record reviews. 12 Since the opinion of Dr. Sayegh was contradicted by consultative and reviewing 13 doctors’ opinions, as well as other objective medical evidence, the specific and legitimate 14 standard applies. 15 Historically, the courts have recognized the following as specific, legitimate reasons 16 for disregarding a treating or examining physician’s opinion: conflicting medical evidence; 17 the absence of regular medical treatment during the alleged period of disability; the lack of 18 medical support for doctors’ reports based substantially on a claimant’s subjective complaints 19 of pain; and medical opinions that are brief, conclusory, and inadequately supported by 20 medical evidence. See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Flaten 21 v. Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995); Fair v. 22 Bowen, 885 F.2d 597, 604 (9th Cir. 1989). 23 The ALJ considered the following objective medical evidence of Plaintiff’s 24 impairments in her determination of Plaintiff’s RFC assessment. 25 In November 2012, consultative examiner Angel Gomez, M.D. examined the Plaintiff 26 (Tr. 319-27.) He noted that Plaintiff was obese but overall appeared to perform well. Plaintiff 27 appeared to be slightly weaker in the right upper and right lower extremities. Dr. Gomez 28 diagnosed asthma and diabetic neuropathy. Dr Gomez completed an opinion of Plaintiff’s-5-Case 2:15-cv-02528-MHB Document 17 Filed 03/24/17 Page 6 of 12 1 work-related activities in which he opined that Plaintiff could lift or carry 20 pounds 2 occasionally and frequently; stand and walk at least two hours but less than six hours per 3 eight-hour workday; frequently able to kneel, crouch, crawl and feel with the right hand; 4 occasionally stoop, and kneel; no limitations on climbing, reaching, handling and ability to 5 finger. He also noted Plaintiff’s minimal to no limp with use of a cane for balance. (Tr. 319-6 27.) 7 Also in November 2012, state agency physician Stephen A. Whaley, M.D., reviewed 8 Plaintiff’s medical record and submitted a Physical RFC Assessment form. Dr. Whaley 9 opined that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently; 10 stand and walk six hours per eight-hour work day; had no limitations pushing or pulling with 11 hands or feet; should avoid concentrated exposure to extreme cold, extreme heat, wetness, 12 humidity, fumes, odors, dusts, gases, poor ventilation; and should limit exposure to 13 environmental conditions which exacerbate respiratory symptoms. (Tr. at 81-83.) 14 Furthermore, state agency physician Donald Robins, M.D., also reviewed Plaintiff’s medical 15 records. Dr. Robins opined that Plaintiff could lift and carry twenty pounds occasionally and, 16 lift and carry ten pounds frequently; stand and walk about four hours in an eight-hour work 17 day; sit about six hours in an eight-hour workday; and must avoid concentrated exposure to 18 extreme cold, extreme heat, wetness, humidity, fumes, odors, dusts, gases, poor ventilation. 19 (Tr. at 101-03.) Additionally, state agency physician Arvin Klein, M.D., reviewed the 20 claimant’s medical records and testified at the hearing. Dr. Klein opined that Plaintiff could 21 lift and carry ten pounds occasionally and, lift and carry ten pounds frequently; can stand and 22 walk up to six hours in an eight-hour workday; can sit up to six hours in an eight-hour 23 workday; is precluded from balancing and climbing ladders, ropes and scaffolds; is precluded 24 from performing overhead reaching the right upper extremity; can frequently perform gross 25 manipulation wight the right upper extremity; and is precluded from working around 26 solvents, fumes, dusts, heights and heavy machinery. (Tr. at 40-72.) 27 Lastly, in March 2013, treating physician Edward Sayegh, M.D., submitted a medical 28 source statement regarding Plaintiff’s abilities. Dr. Sayegh opined that Plaintiff could sit one-6-Case 2:15-cv-02528-MHB Document 17 Filed 03/24/17 Page 7 of 12 1 hour; stand and walk one hour; lift and carry less than ten pounds; has limitations in doing 2 repetitive reaching, handling and fingering with her right arms, hands and fingers; is limited 3 to less than a full range of sedentary exertion and would miss more than four workdays a 4 month. Dr. Sayegh concluded that Plaintiff was not physically capable of working an eight 5 hour day for five days a week on a sustained basis. (Tr. at 343-44.) 6 In her evaluation of the objective medical evidence, the ALJ addressed state agency 7 physician Dr. Gomez’s opinion that Plaintiff’s ability to finger with her right hand. (Tr. 319-27.) The 8 ALJ gave reduced weight because it was inconsistent with nerve conduction studies showing only 9 mild peripheral neuropathy in upper extremities, as well as Plaintiff’s testimony that she has normal 10 use and feeling in her hand. (Tr. at 32.) However, the ALJ gave significant weight to Dr. Gomez’s 11 remaining opinion because it is generally consistent with the medical record as a whole. (Tr. at 32); 12 see 20 C.F.R. § 416.927(d)(2)(i) (state agency medical consultants "are highly qualified 13 physicians, psychologists, and other medical specialists who are also experts in Social 14 Security disability evaluation"); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) ("The 15 opinions of non treating or non examining physicians may also serve as substantial evidence 16 when the opinions are consistent with independent clinical findings or other evidence in the 17 record." (citations omitted)). 18 The ALJ also considered the opinions from Dr. Whaley and Dr. Robbins. (Tr. at 32.) 19 Dr. Robbins largely agreed with Dr. Whaley’s opinion. The ALJ gave reduced weight to their 20 opinions regarding the Plaintiff’s ability to work around extreme temperatures and wetness 21 because the Plaintiff’s diabetes mellitus is under good control. However, the ALJ gave 22 significant weight to their remaining opinions because they are consistent with Plaintiff’s 23 positive response to conservative care and clinical examinations documenting normal gait 24 and good strength.(Tr. at 32.) Additionally, the ALJ gave great weight to Dr. Klein’s opinion 25 because it is consistent with the medical record as a whole, including Plaintiff’s positive 26 response to conservative care, the mild x-ray studies of her spine, generally mild peripheral 27 neuropathy and clinical examinations documenting normal gait, full range of motion of her 28 right shoulder and occasional right shoulder pain. (Tr. at 33.)-7-Case 2:15-cv-02528-MHB Document 17 Filed 03/24/17 Page 8 of 12 1 The ALJ then discussed treating physician Dr. Sayegh’s opinion that the Plaintiff is 2 limited to less than a full range of sedentary exertion and would miss more than four 3 workdays per month. (Tr. at 32.) The ALJ discounted the opinion because it was overly 4 restrictive given Plaintiff’s positive response to conservative treatment and clinical 5 examination documenting mild neuropathic symptoms, normal gait and generally full 6 strength. (Tr. at 32.) 7 The Court finds that the ALJ properly weighed the medical source opinion evidence 8 related to Plaintiff’s physical impairments, and gave specific and legitimate reasons, based 9 on substantial evidence in the record, for discounting Dr. Sayegh’s opinion. See Molina v. 10 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) ("In order to reject the testimony of a medically 11 acceptable treating source, the ALJ must provide specific, legitimate reasons based on 12 substantial evidence in the record." (citation omitted)). An ALJ provides specific and 13 legitimate reasons to discount a treating physician’s opinion when she expressly relies on the 14 contrary opinions of an examining physician. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 15 (9th Cir. 2001). Here, the ALJ gave significant weigh to the majority of Dr. Gomez’s opinion 16 that Plaintiff could perform the demands of sedentary work, with certain postural and 17 environmental limitations. (Tr. at 32; 322-24.) The opinion of Dr. Gomez is substantial 18 evidence for the RFC assessment and the rejection of the treating physician’s opinion. Id. 19 Furthermore, an ALJ may discount a treating physician’s opinion because it is unsupported 20 by treatment notes and conflicts with examination results and Plaintiff’s positive response 21 to treatment. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 599, 601-03 (9th Cir. 1999). 22 The ALJ explained with citations to the record that Plaintiff’s treatment has been routine, 23 without spinal injections or surgery, that her asthma, diabetes and right shoulder have been 24 controlled with medication, and that objective medical evidence is inconsistent with the 25 treating physicians’s assessment of extreme limitations. (Tr. at 31.) An X-ray of Plaintiff’s 26 spine shows mild and minimal changes (Tr. at 406-07.) A nerve conduction study showed 27 mild and moderate abnormalities. (Tr. at 395-98.). Dr. Gomez’s exam revealed normal 28 muscle tone, full range of motion in all extremitites, slight weakness in the right extremities,-8-Case 2:15-cv-02528-MHB Document 17 Filed 03/24/17 Page 9 of 12 1 full sensory findings, and normal spirometry. (Tr. at 321.) The evidence the ALJ relied upon 2 was substantial, and therefore, the Court finds no error. 3 Plaintiff next contends that the mental RFC is not supported by substantial evidence 4 because the ALJ erred in rejecting the opinion from consultative examiner Robin Potter, Psy. 5 D. 6 In November 2012, Dr. Potter examined Plaintiff. (Tr. at 328-42.) Dr. Potter observed 7 Plaintiff in a depressed manner, and observed that Plaintiff needed reminders to take her 8 medication, needed transportation assistance, and had been in special education in school. 9 Additionally, Dr. Potter noted that Plaintiff was quiet, not a good historian, presented at times 10 as immature by rolling her eyes during the exam, appeared hesitant, and had to reposition and 11 move around during the exam. Dr. Potter found that Plaintiff exhibited symptoms of 12 depression and anxiety. Plaintiff’s symptoms of depression included depressed mood most 13 days for several years, hypersomnia, decreased appetite, diminished interest in previously 14 enjoyable activities, and passive suicidal ideation. There was no current suicidal intent or 15 plan. Plaintiff’s anxiety symptoms included constant worry and rumination. However, 16 anxiety did not seem to meet criteria for diagnosis based on Plaintiff’s reporting. The results 17 of the MMSE revealed no gross cognitive impairments such as delirium or dementia. The 18 results of the WAIS-IV revealed that Plaintiff’s overall intelligence quotient is in the 19 extremely low range. Based on Plaintiff’s varied level of effort and motivation, Dr. Potter 20 stated that the results should be viewed with caution. Plaintiff did not appear to meet the 21 criteria for Mild Mental Retardation based on her daily living skills. According to Dr. Potter, 22 examination of Plaintiff’s previous school records could shed light on whether Plaintiff has 23 exhibited cognitive problems over time. In light of the evidence Dr. Potter concluded that a 24 diagnosis of borderline intellectual functioning appeared appropriate. (Tr. at 328-42.) 25 Dr. Potter also completed a medical assessment of Plaintiff’s ability to perform 26 work-related activities. (Tr. at 340-41.) Dr. Potter opined that Plaintiff’s difficulty with 27 comprehension and processing speed appeared likely to interfere with Plaintiff’s ability to 28 follow instructions in a work environment. Additionally, Plaintiff exhibited issues with-9-Case 2:15-cv-02528-MHB Document 17 Filed 03/24/17 Page 10 of 12 1 sustained concentration and persistence which would likely impact Plaintiff’s attention and 2 concentration at work and ability to maintain regular attendance. Furthermore, Plaintiff had 3 limitations with social interaction that would likely interfere in a work like setting. Lastly, 4 Dr. Potter opined Plaintiff’s difficulty adapting to changes and difficulty with interpersonal 5 relationships are likely to interfere with her ability to maintain employment. (Tr. at 340-41.) 6 The ALJ discussed Dr. Potter’s opinion that Plaintiff would have difficulty following 7 instructions in a work environment; moderate difficulty carrying out even simple 8 instructions; difficulty maintaining attention, concentration and regular attendance at work; 9 would have social functioning limitations of an unspecified degree; and had poor ability to 10 adapt, cope or handle changes. (Tr. at 340-41.) The ALJ gave reduced weight to Dr. Potter’s 11 opinion because it was inconsistent with Plaintiff’s poor effort during the examination as well 12 as the Plaintiff’s general lack of mental health treatment and unremarkable mental status 13 examinations during routine office visits. (Tr. at 33.) 14 The Court having reviewed the ALJ’s evaluation of the objective medical evidence 15 finds that the ALJ did not mention the opinions or treatment record of psychological 16 consultants Alvin Smith, Ph. D., and Stephen Fair, Ph. D. (Tr. at 20-39.) Dr. Potter is the only 17 source in the record whose opinion the ALJ discussed or weighed. The ALJ did not discuss 18 or indicate what degree of weight she afforded to the opinions of Dr. Smith (Tr. at 84-85), 19 and Dr. Fair (Tr. at 104-05). Even if the non-examining opinions support the ALJ’s decision, 20 the ALJ has not provided any explanation whether the evidence supports those opinions 21 sufficiently for the ALJ to properly rely on them. See Garrison v. Colvin, 795 F.3d 995, 1012 22 (9th Cir. 2014) (noting differences in treatment of opinions from different sources and 23 indicating that "the opinion of an examining physician is entitled to greater weight than that 24 of a non-examining physician"); Bain v. Astrue, 319 Fed.Appx. 543, 546 (9th Cir. 25 2009)("Evidence from state agency consultant physicians must be treated as'expert opinion 26 evidence;’ thus, the ALJ'may not ignore these opinions and must explain the weight given 27 to these opinions in their decisions’") (quoting SSR 96-6p). Additionally, the justification for 28 the rejection that was given by the ALJ was not supported by substantial evidence. Instead,-10-Case 2:15-cv-02528-MHB Document 17 Filed 03/24/17 Page 11 of 12 1 the ALJ gave reduced weight because it was inconsistent with Plaintiff’s poor effort during 2 the examination as well as Plaintiff’s general lack of mental health treatment and 3 unremarkable mental status examinations during routine office visits. (Tr. at 33.) The focus 4 on Plaintiff’s poor effort during the examination ignored evidence to the contrary. An ALJ 5 is not permitted to rely on evidence supporting her conclusions while ignoring evidence 6 contrary to those conclusions. See Maydanis v. Colvin, 119 F.Supp.3d 969, 976 (D. Ariz. 7 2015); Provencio v. Astrue, 2012 U.S. Dist. LEXIS 85294, at *48 (D. Ariz., June 20, 2012) 8 (finding "[i]t was improper for the ALJ to selectively reference plaintiff’s treatment records 9 to support her conclusion, while ignoring other treatment records contradicting that 10 conclusion"). Moreover, the lack of formal mental health treatment cannot serve as evidence 11 that mental health issues are not disabling. See Rivera v. Colvin, 2013 U.S. Dist. LEXIS 12 161035, *9-10 (D. Or., Nov. 12, 2013). 13 Therefore, in light of the fact that the Court finds that the ALJ failed to provide 14 specific, legitimate reasons based on substantial evidence in the record for giving reduced 15 weight to Dr. Potter’s opinion, the Court will order that the decision of the ALJ be vacated 16 and the case be remanded. 17 "[R]emand for further proceedings is appropriate where there are outstanding issues 18 that must be resolved before a determination can be made, and it is not clear from the record 19 that the ALJ would be required to find claimant disabled if all the evidence were properly 20 evaluated." Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (citing Vasquez v. Astrue, 21 572 F.3d 586, 593 (9th Cir. 2009)). "[T]he proper course, except in rare circumstances, is 22 remand to the agency for additional investigation or explanation." INS v. Ventura, 537 U.S. 23 12, 16 (2002) (per curiam). The Ninth Circuit has held that when "additional proceedings 24 can remedy defects in the original administrative proceeding, a social security case should 25 be remanded." Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (remanding "to the 26 Secretary for proper consideration of step three equivalence"). 27 \\\ 28 \\\-11-Case 2:15-cv-02528-MHB Document 17 Filed 03/24/17 Page 12 of 12 1 V. CONCLUSION 2 For the reasons discussed in this Order, the Commissioner’s decision will be vacated 3 and this matter will be remanded for further administrative proceedings consistent with this 4 Order. 5 Accordingly, 6 IT IS ORDERED that the Commissioner’s decision is VACATED and this matter 7 is REMANDED to the Commissioner for further administrative proceedings as set forth in 8 this Order; 9 IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment 10 accordingly. 11 DATED this 24th day of March, 2017. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28-12-

CLERK'S JUDGMENT - Pursuant to the Court's Order filed March 24, 2017, the decision of the Commissioner of Social Security is vacated, and this case is remanded to the Social Security Administration for further proceedings consistent with the Order.

Case 2:15-cv-02528-MHB Document 18 Filed 03/24/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tamara Demia Jones, NO. CV-15-02528-PHX-MHB 10 Plaintiff, JUDGMENT IN A CIVIL CASE 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Decision by Court. This action came for consideration before the Court. The 16 issues have been considered and a decision has been rendered. 17 IT IS ORDERED AND ADJUDGED that pursuant to the Court’s Order filed 18 March 24, 2017, the decision of the Commissioner of Social Security is vacated, and this 19 case is remanded to the Social Security Administration for further proceedings consistent 20 with the Order. 21 Brian D. Karth District Court Executive/Clerk of Court 22 23 March 24, 2017 s/A. Duran 24 By Deputy Clerk 25 26 27 28

First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Tamara Demia Jones.

Case 2:15-cv-02528-MHB Document 19 Filed 06/16/17 Page 1 of 3 1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Tamara Demia Jones 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Tamara Demia Jones, 13 14 Plaintiff, Civil No. 2-15-cv-02528-PHX-MHB 15 16 vs. MOTION FOR ATTORNEY’S 17 FEES PURSUANT TO THE 18 Carolyn W. Colvin, EQUAL ACCESS TO JUSTICE Acting Commissioner of Social ACT, 28 U.S.C. § 2412 19 Security, 20 21 Defendant 22 PLAINTIFF’S MOTION FOR ATTORNEY’S FEES PURSUANT TO THE 23 24 EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412 25 26 COUNSEL: 27 PLEASE TAKE NOTICE that upon the annexed affirmation of Howard 28 D. Olinsky, attorney for the plaintiff, and other papers, the plaintiff will make a Page 1 Case 2:15-cv-02528-MHB Document 19 Filed 06/16/17 Page 2 of 3 1 motion before Hon. Michelle H. Burns, at Sandra Day O’Connor U.S. Courthouse, 2 Suite 323, 401 West Washington Street, SPC 12, Phoenix, AZ 85003 on a date to 3 4 be set by the court, for an order: 5 1. Awarding an Equal Access to Justice Act Counsel Fee for $5,038.96, 6 7 2. If the Plaintiff has no debt registered with the Department of Treasury 8 subject to offset that the fees be made payable to the attorney; and 9 3. Awarding Expenses in the amount of $25.47. 10 11 12 13 Plaintiff, by her attorney, Howard D. Olinsky moves the court for an award to be 14 paid by the Defendant under the Equal Access to Justice Act, 28 USCS § 2412. 15 16 17 Plaintiff may receive an award under the Equal Access to Justice Act because he is 18 the prevailing party, is an individual whose net worth did not exceed two million 19 dollars when the action was filed, and the position of the United States in this 20 21 litigation and/or at the agency was not substantially justified. Although the burden 22 of proof on substantial justification is on the government, Plaintiff’s supporting 23 memorandum briefly addresses this issue. 24 25 26 There are no special circumstances in this case which make an award under the 27 EAJA unjust. 28 Page 2 Case 2:15-cv-02528-MHB Document 19 Filed 06/16/17 Page 3 of 3 1 This motion is supported by an affirmation of Plaintiff’s attorney, attached time 2 and cost records and an Affidavit and Waiver of Direct Payment by the plaintiff. 3 4 5 Executed this June 16, 2017 6 Respectfully submitted, 7 8/s/Howard D. Olinsky Howard D. Olinsky, Esq. 9 Admitted Pro Hac Vice 10 Attorney for Plaintiff Email: fedct@windisability.com 11 12 To: John S. Leonardo, Esq. United States Attorney 13 Gerald J. Hill, Esq. 14 Special Assistant U.S. Attorney 15 Office of the General Counsel 16 Social Security Administration 17 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104 18 State Bar No. OR004891 19 Telephone: (206) 615-2139 20 Facsimile: (206) 615-2531 Email: gerald.j.hill@ssa.gov 21 Attorneys for Defendant 22 23 24 25 26 27 28 Page 3

Text of Proposed Order

Case 2:15-cv-02528-MHB Document 19-1 Filed 06/16/17 Page 1 of 2 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 10 11 12 Tamara Demia Jones, Civil No. 2-15-cv-02528-PHX-MHB 13 Plaintiff, 14 15 vs. (PROPOSED) ORDER AWARDING ATTORNEY’S FEES 16 PURSUANT TO THE EQUAL 17 Carolyn W. Colvin, ACCESS TO JUSTICE ACT, 18 Acting Commissioner of Social 28 U.S.C. § 2412(D) Security, 19 20 Defendant 21 (Proposed) Order Awarding Attorney’s Fees 22 23 pursuant to the Equal Access to Justice Act, 24 28 U.S.C. § 2412(d) 25 Before the Court is the Motion of Plaintiff Tamara Demia Jones, for award 26 27 of attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 28 2412(d). Based on the pleadings as well as the position of the defendant Page 1 Case 2:15-cv-02528-MHB Document 19-1 Filed 06/16/17 Page 2 of 2 1 commissioner, if any, and recognizing the Plaintiff’s waiver of direct payment and 2 assignment of EAJA to her counsel, 3 4 5 IT IS HEREBY ORDERED that attorney fees in the total amount of Five 6 Thousand Thirty-Eight Dollars and Ninety-SixCents ($5,038.96) pursuant to the 7 8 Equal Access to Justice Act, 28 U.S.C. § 2412(d) are awarded to Plaintiff. Astrue 9 v. Ratliff, 130 S.Ct. 2521 (2010). 10 11 IT IS FURTHER ORDERD that Plaintiff is awarded Twenty-Five Dollars 12 13 and Forty-SevenCents ($25.47) in expenses for Certified Mail for service of 14 Summons and Complaint. 15 16 17 If the U.S. Department of the Treasury determines that Plaintiff’s EAJA 18 fees are not subject to offset allowed under the Department of the Treasury’s 19 Offset Program (TOPS), then the check for EAJA fees shall be made payable to 20 21 Plaintiff’s attorney, Howard D. Olinsky. 22 23 Whether the check is made payable to Plaintiff or to Howard D. Olinsky, 24 25 26 27 28 Page 2

AFFIDAVIT of Howard D. Olinsky, Esq. re: [19] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Plaintiff Tamara Demia Jones.

Case 2:15-cv-02528-MHB Document 20 Filed 06/16/17 Page 1 of 4 1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Tamara Demia Jones 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Tamara Demia Jones, 13 14 Plaintiff, Civil No. 2-15-cv-02528-PHX-MHB 15 16 vs. Attorney’s affirmation in support of 17 Fees Pursuant to the Equal Access to 18 Carolyn W. Colvin, Justice Act, 28 U.S.C. § 2412 19 Acting Commissioner of Social Security, 20 21 Defendant 22 Attorney’s affirmation in support of Fees Pursuant to the Equal Access to 23 24 Justice Act, 28 U.S.C. § 2412 ________________________________________ 25 STATE OF NEW YORK) 26 COUNTY OF ONONDAGA) ss: 27 Howard D. Olinsky, being duly sworn deposes and states: 28 Page 4 Case 2:15-cv-02528-MHB Document 20 Filed 06/16/17 Page 2 of 4 1 1. I am an attorney licensed to practice law in the State of New York, 2 admitted to practice pro hac vice before this Court. 3 4 2. I make this affirmation knowing that the Court will rely upon it in 5 assessing any awards under the Equal Access to Justice Act. 28 USCS § 2412. 6 3. There are no special circumstances in this case which make an award 7 8 under the EAJA unjust. 9 4. The Court ordered on March 24, 2017 that the above-entitled case be 10 remanded for further administrative proceedings, under the fourth sentence of 42 11 U.S.C. § 405(g). 12 13 5. For the Equal Access to Justice Act, I am requesting an hourly rate 14 of $192.68 for attorney time in 2016. See generally, 15 http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 U.S.C.A 9th 16 17 Circuit EAJA Table. If attorney fees are calculated at this rate for 22 hours of 18 work performed in 2015 – 2017 they total $4,238.96. 19 6. I am also requesting $100.00 per hour for 8.6 hours of paralegal time 20 21 equaling $860.00. I am requesting $5,038.96 for Counsel Fees which include 22 attorney and paralegal time. 23 7. The time accounting is presented to the court in two fashions. 24 25 Exhibit A is the time spent by all who worked on this case in chronological 26 sequence. Exhibit B is broken down by attorneys. The attorneys involved in this 27 case are Howard D. Olinsky, Esq. Paul B. Eaglin Esq., and Michelle Fecio, Esq. 28 Page 5 Case 2:15-cv-02528-MHB Document 20 Filed 06/16/17 Page 3 of 4 1 Exhibit C is broken down by paralegals. The paralegals involved in this case are 2 Shannon Persse, Michael Smith, and Michelle Callahan. 3 4 8. I am requesting reimbursement of expenses of $25.47 for Certified 5 Mail for the summons and complaint to the defendant’s office’s as shown on 6 Exhibit D. 7 8 9. The attached records were contemporaneously created and stored in 9 the firm’s Prevail Database, and are printed out and attached. The itemized time 10 represents hours spent preparing and handling this case for U.S. District Court. 11 Clerical time is not included in this petition or has been zeroed out. 12 13 Waiver of Direct Payment of EAJA Fees 14 10. Attached is an Affidavit and Waiver of Direct Payment duly 15 executed by the plaintiff (Exhibit E). With this Waiver, if Plaintiff owes a debt 16 17 that qualifies under the Treasury Offset Program (31 USCS § 3716), any payment 18 shall be made payable to the Plaintiff and delivered to the Plaintiff’s attorney. If 19 the United States Department of Treasury determines that Plaintiff owes no debt 20 21 subject to offset, the government may accept the assignment of EAJA fees and pay 22 such fees directly to the Plaintiff’s attorney. Astrue v. Ratliff, 560 U.S. 586 (U.S. 23 2010). 24 25 26 WHEREFORE, because all four elements of an allowable application for 27 EAJA fees have been proven, petitioner requests that the Court issue an order: 28 Page 6 Case 2:15-cv-02528-MHB Document 20 Filed 06/16/17 Page 4 of 4 1 1. Awarding an Equal Access to Justice Act Counsel Fee for $5,038.96; 2 and 3 4 2. If the Plaintiff has no debt registered with the Department of Treasury 5 subject to offset that the fees be made payable to the attorney; and 6 3. Awarding Expenses in the amount of $25.47. 7 8 9 Executed this June 16, 2017 10 Respectfully submitted, 11/s/Howard D. Olinsky 12 Howard D. Olinsky, Esq. 13 Admitted Pro Hac Vice Attorney for Plaintiff 14 Email: fedct@windisability.com 15 To: John S. Leonardo 16 United States Attorney 17 Gerald J. Hill, Esq. 18 Special Assistant U.S. Attorney 19 Office of the General Counsel 20 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 21 Seattle, WA 98104 22 State Bar No. OR004891 23 Telephone: (206) 615-2139 Facsimile: (206) 615-2531 24 Email: gerald.j.hill@ssa.gov 25 Attorneys for Defendant 26 27 28 Page 7

Exhibit A All Professional Time

Exhibit A Case 2:15-cv-02528-MHB Document 20-1 Filed 06/16/17 Page 2 of 3 Ledger Jones, Tamara Demia Date  Subject Hours Timekeeper 10/19/2015 Files received, reviewed and processed from referral source for Attorney review 0.6 Persse, Shannon 10/19/2015 Correspondence to Client re: Prospect acknowledgment letter mailed 0.2 Persse, Shannon 12/4/2015 Telephone call with Client re: Debt conference call, explained process 0.4 Callahan, Michelle 12/8/2015 Review decisions and evidence to determine whether to appeal case 1 Eaglin, Paul B. 12/8/2015 Telephone call with Client re: Acceptance of case and review forms-left VM 0 Callahan, Michelle 12/9/2015 Telephone call to Client re: Forms and acceptance of case-left another VM 0 Callahan, Michelle 12/9/2015 Telephone call with Client re: Assistance with in forma pauperis application 0.5 Callahan, Michelle 12/9/2015 FDC Prospect Packet sent to Client via Right Signature 0.2 Callahan, Michelle 12/9/2015 FDC prospect packet prepared for Client completion 0.6 Callahan, Michelle 12/10/2015 Telephone call to Client re: Follow up on FDC forms packet-left VM 0 Callahan, Michelle 12/11/2015 Telephone call with Client re: FDC forms, email issues-resend per request 0.2 Callahan, Michelle 12/11/2015 FDC Prospect Packet RESENT to Client via Right Signature per request 0.2 Callahan, Michelle 12/11/2015 Draft Proposed Summons, Complaint, Letter to Clerk, Civil Cover Sheet 0.6 Olinsky, Howard D. 12/11/2015 Telephone call with Client re: Follow up on FDC forms packet 0.2 Callahan, Michelle 12/11/2015 FDC Prospect packet returned via Right Signature, reviewed for completion 0.3 Smith, Michael P. 12/11/2015 Review Motion to Proceed In Forma Pauperis, approve for filing 0.2 Olinsky, Howard D. 12/11/2015 File Complaint and Civil Cover Sheet via CM/ECF 0 Smith, Michael P. 12/11/2015 File Application for Leave to Proceed In Forma Pauperis via CM/ECF 0 Smith, Michael P. 12/14/2015 Draft Application for Pro Hac Vice 0 Olinsky, Howard D. 12/14/2015 Correspondence to Client re: Federal Court-Accept Letter-New FDC Filing 0.3 Smith, Michael P. 12/14/2015 Download, file, save and distribute ECF re: Complaint, Civil Cover Sheet 0 Callahan, Michelle 12/14/2015 Download, file, save and distribute ECF re: Application to Proceed IFP 0 Callahan, Michelle 12/14/2015 Download, file, save and distribute ECF re: Summons submitted 0 Callahan, Michelle 12/14/2015 Dwld, file, save & distribute ECF re: Case assigned to Honorable David Campbell 0 Callahan, Michelle 12/14/2015 Review Case assigned Hon. David Dampbell, research individual rules & practices 0.3 Olinsky, Howard D. 12/14/2015 Download, file, save and distribute ECF re: Scheduling Order 0 Callahan, Michelle 12/14/2015 Review Scheduling order, calender deadlines on task pad 0.3 Olinsky, Howard D. 12/14/2015 Download, file, save and distribute ECF re: Order granting IFP appilcation 0 Callahan, Michelle 12/14/2015 Review Order granting In Forma Pauperis application, directing service 0.2 Olinsky, Howard D. 12/14/2015 File Application for Pro Hac Vice HDO via CM/ECF 0 Smith, Michael P. 12/14/2015 Download, file, save and distribute ECF re: Motion for Pro Hac Vice 0 Callahan, Michelle 12/15/2015 Download, file, save and distribute ECF re: Summons Issued as to OCG, USAO, AG 0 Callahan, Michelle 12/15/2015 Review Summons Issued 0.2 Olinsky, Howard D. 12/15/2015 Review Order granting Motion for Pro Hac Vice 0 Olinsky, Howard D. 12/21/2015 Download, file, save and distribute ECF re: Pro Hac Vice fee paid 0 Callahan, Michelle 12/21/2015 Download, file, save and distribute ECF re: Order Granting Pro Hac Vice 0 Callahan, Michelle 12/29/2015 Federal Court-Service of Process-Prepare Service Packets USAO, OGC, AG 0.6 Callahan, Michelle 1/11/2016 Download, File, and Save Electronic return receipt Attorney General 0 Callahan, Michelle 1/12/2016 Download, File, and Save Electronic return receipt Office of General Cousel 0 Callahan, Michelle 1/12/2016 Dwld, file, save & distribute ECF re: Notice of appearance Gerald J. Hill 0 Callahan, Michelle 30.60 (Category = Federal Court) and (Type = Time)    Case 2:15-cv-02528-MHB Document 20-1 Filed 06/16/17 Page 3 of 3 Date  Subject Hours Timekeeper 1/12/2016 Review Notice of appearance Gerald J. Hill o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 1/15/2016 Federal Court-Service of Process-Prepare Service Packet USAO RESERVE 0.2 Callahan, Michelle 1/20/2016 Download, File, and Save Electronic return receipt US Attorney 0 Callahan, Michelle 1/20/2016 Combine and File Proof of service via CM/ECF 0.3 Callahan, Michelle 1/21/2016 Download, file, save and distribute ECF re: Service executed 0 Callahan, Michelle 1/21/2016 Review Service executed re: proof of service 0.1 Eaglin, Paul B. 2/1/2016 Review and execute Magistrate consent form 0.2 Olinsky, Howard D. 2/1/2016 Emails with Opposing Counsel re: Executed Magistrate consent 0.2 Smith, Michael P. 2/5/2016 Received and reviewed correspondence acknowledging service USAO 0.1 Eaglin, Paul B. 2/12/2016 Download, file, save and distribute ECF re: Consent to Magistrate Judge 0 Callahan, Michelle 2/12/2016 Review Consent to Magistrate Judge, update case number in file 0.1 Eaglin, Paul B. 3/11/2016 Download, file, save and distribute ECF re: Answer to filed Complaint 0 Callahan, Michelle 3/11/2016 Review Answer to complaint 0.1 Eaglin, Paul B. 3/11/2016 Download, File and Save transcript in 9 (nine) parts 0.2 Callahan, Michelle 3/11/2016 Combine, strip PDF/A, OCR and live bookmark Federal Court Transcript (491 pgs) 0.5 Callahan, Michelle 3/14/2016 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 5/5/2016 Attorney review Certified Administrative Record 3 Fecio, Michelle 5/6/2016 Continue reviewing CAR, take notes, organize facts 1.9 Fecio, Michelle 5/9/2016 Writing Arguments and Legal Research 8 Fecio, Michelle 5/10/2016 Finalize draft for review. 2 Fecio, Michelle 5/10/2016 Senior Attorney reivew draft brief, suggest edits 0.9 Eaglin, Paul B. 5/10/2016 Implement suggested edits, finalize and file brief (n/c for filing) 0.8 Fecio, Michelle 5/11/2016 Download, file, save and distribute ECF re: Opening brief 0 Callahan, Michelle 6/9/2016 Download, file, save and distribute ECF re: Response brief 0 Callahan, Michelle 6/9/2016 Review Response brief (12 pages) 0.4 Eaglin, Paul B. 8/1/2016 Correspondence to Client re: Federal Court-FYI Memo of Law Mailed 0 Callahan, Michelle 3/24/2017 Download, file, save and distribute ECF re: Order Vacated and remanded 0 Callahan, Michelle 3/24/2017 Review Order Vacating and remanding for further proceedings (12 pgs) 0.4 Eaglin, Paul B. 3/24/2017 Download, file, save and distribute ECF re: Clerk's Judgment 0 Callahan, Michelle 3/24/2017 Review Clerk's Judgment 0.1 Eaglin, Paul B. 3/31/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 3/31/2017 Federal Court-Remand Referral back to Referral Source 0.3 Callahan, Michelle 6/15/2017 EAJA Preparation 1.5 Persse, Shannon 6/15/2017 Review Slips and Finalize EAJA Motion 0.5 Olinsky, Howard D. 6/16/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 30.60 (Category = Federal Court) and (Type = Time)   

Exhibit B Attorney Time

Exhibit B Case 2:15-cv-02528-MHB Document 20-2 Filed 06/16/17 Page 2 of 2 Ledger Jones, Tamara Demia Date  Subject Hours Timekeeper 12/8/2015 Review decisions and evidence to determine whether to appeal case 1 Eaglin, Paul B. 12/11/2015 Draft Proposed Summons, Complaint, Letter to Clerk, Civil Cover Sheet 0.6 Olinsky, Howard D. 12/11/2015 Review Motion to Proceed In Forma Pauperis, approve for filing 0.2 Olinsky, Howard D. 12/14/2015 Draft Application for Pro Hac Vice 0 Olinsky, Howard D. 12/14/2015 Review Case assigned Hon. David Dampbell, research individual rules & practices 0.3 Olinsky, Howard D. 12/14/2015 Review Scheduling order, calender deadlines on task pad 0.3 Olinsky, Howard D. 12/14/2015 Review Order granting In Forma Pauperis application, directing service 0.2 Olinsky, Howard D. 12/15/2015 Review Summons Issued 0.2 Olinsky, Howard D. 12/15/2015 Review Order granting Motion for Pro Hac Vice 0 Olinsky, Howard D. 1/12/2016 Review Notice of appearance Gerald J. Hill o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 1/21/2016 Review Service executed re: proof of service 0.1 Eaglin, Paul B. 2/1/2016 Review and execute Magistrate consent form 0.2 Olinsky, Howard D. 2/5/2016 Received and reviewed correspondence acknowledging service USAO 0.1 Eaglin, Paul B. 2/12/2016 Review Consent to Magistrate Judge, update case number in file 0.1 Eaglin, Paul B. 3/11/2016 Review Answer to complaint 0.1 Eaglin, Paul B. 3/14/2016 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 5/5/2016 Attorney review Certified Administrative Record 3 Fecio, Michelle 5/6/2016 Continue reviewing CAR, take notes, organize facts 1.9 Fecio, Michelle 5/9/2016 Writing Arguments and Legal Research 8 Fecio, Michelle 5/10/2016 Finalize draft for review. 2 Fecio, Michelle 5/10/2016 Senior Attorney reivew draft brief, suggest edits 0.9 Eaglin, Paul B. 5/10/2016 Implement suggested edits, finalize and file brief (n/c for filing) 0.8 Fecio, Michelle 6/9/2016 Review Response brief (12 pages) 0.4 Eaglin, Paul B. 3/24/2017 Review Order Vacating and remanding for further proceedings (12 pgs) 0.4 Eaglin, Paul B. 3/24/2017 Review Clerk's Judgment 0.1 Eaglin, Paul B. 6/15/2017 Review Slips and Finalize EAJA Motion 0.5 Olinsky, Howard D. 22.00 (Category = Federal Court) and (Type = Time) and ((Timekeeper = Eaglin, Paul B.) or (Timekeeper = Fecio, Michelle) or (Timekee...   

Exhibit C Paralegal Time

Exhibit C Case 2:15-cv-02528-MHB Document 20-3 Filed 06/16/17 Page 2 of 3 Ledger Jones, Tamara Demia Date  Subject Hours Timekeeper 10/19/2015 Files received, reviewed and processed from referral source for Attorney review 0.6 Persse, Shannon 10/19/2015 Correspondence to Client re: Prospect acknowledgment letter mailed 0.2 Persse, Shannon 12/4/2015 Telephone call with Client re: Debt conference call, explained process 0.4 Callahan, Michelle 12/8/2015 Telephone call with Client re: Acceptance of case and review forms-left VM 0 Callahan, Michelle 12/9/2015 Telephone call to Client re: Forms and acceptance of case-left another VM 0 Callahan, Michelle 12/9/2015 Telephone call with Client re: Assistance with in forma pauperis application 0.5 Callahan, Michelle 12/9/2015 FDC Prospect Packet sent to Client via Right Signature 0.2 Callahan, Michelle 12/9/2015 FDC prospect packet prepared for Client completion 0.6 Callahan, Michelle 12/10/2015 Telephone call to Client re: Follow up on FDC forms packet-left VM 0 Callahan, Michelle 12/11/2015 Telephone call with Client re: FDC forms, email issues-resend per request 0.2 Callahan, Michelle 12/11/2015 FDC Prospect Packet RESENT to Client via Right Signature per request 0.2 Callahan, Michelle 12/11/2015 Telephone call with Client re: Follow up on FDC forms packet 0.2 Callahan, Michelle 12/11/2015 FDC Prospect packet returned via Right Signature, reviewed for completion 0.3 Smith, Michael P. 12/11/2015 File Complaint and Civil Cover Sheet via CM/ECF 0 Smith, Michael P. 12/11/2015 File Application for Leave to Proceed In Forma Pauperis via CM/ECF 0 Smith, Michael P. 12/14/2015 Correspondence to Client re: Federal Court-Accept Letter-New FDC Filing 0.3 Smith, Michael P. 12/14/2015 Download, file, save and distribute ECF re: Complaint, Civil Cover Sheet 0 Callahan, Michelle 12/14/2015 Download, file, save and distribute ECF re: Application to Proceed IFP 0 Callahan, Michelle 12/14/2015 Download, file, save and distribute ECF re: Summons submitted 0 Callahan, Michelle 12/14/2015 Dwld, file, save & distribute ECF re: Case assigned to Honorable David Campbell 0 Callahan, Michelle 12/14/2015 Download, file, save and distribute ECF re: Scheduling Order 0 Callahan, Michelle 12/14/2015 Download, file, save and distribute ECF re: Order granting IFP appilcation 0 Callahan, Michelle 12/14/2015 File Application for Pro Hac Vice HDO via CM/ECF 0 Smith, Michael P. 12/14/2015 Download, file, save and distribute ECF re: Motion for Pro Hac Vice 0 Callahan, Michelle 12/15/2015 Download, file, save and distribute ECF re: Summons Issued as to OCG, USAO, AG 0 Callahan, Michelle 12/21/2015 Download, file, save and distribute ECF re: Pro Hac Vice fee paid 0 Callahan, Michelle 12/21/2015 Download, file, save and distribute ECF re: Order Granting Pro Hac Vice 0 Callahan, Michelle 12/29/2015 Federal Court-Service of Process-Prepare Service Packets USAO, OGC, AG 0.6 Callahan, Michelle 1/11/2016 Download, File, and Save Electronic return receipt Attorney General 0 Callahan, Michelle 1/12/2016 Download, File, and Save Electronic return receipt Office of General Cousel 0 Callahan, Michelle 1/12/2016 Dwld, file, save & distribute ECF re: Notice of appearance Gerald J. Hill 0 Callahan, Michelle 1/15/2016 Federal Court-Service of Process-Prepare Service Packet USAO RESERVE 0.2 Callahan, Michelle 1/20/2016 Download, File, and Save Electronic return receipt US Attorney 0 Callahan, Michelle 1/20/2016 Combine and File Proof of service via CM/ECF 0.3 Callahan, Michelle 1/21/2016 Download, file, save and distribute ECF re: Service executed 0 Callahan, Michelle 2/1/2016 Emails with Opposing Counsel re: Executed Magistrate consent 0.2 Smith, Michael P. 2/12/2016 Download, file, save and distribute ECF re: Consent to Magistrate Judge 0 Callahan, Michelle 3/11/2016 Download, file, save and distribute ECF re: Answer to filed Complaint 0 Callahan, Michelle 3/11/2016 Download, File and Save transcript in 9 (nine) parts 0.2 Callahan, Michelle 3/11/2016 Combine, strip PDF/A, OCR and live bookmark Federal Court Transcript (491 pgs) 0.5 Callahan, Michelle 8.60 (Category = Federal Court) and (Type = Time) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Persse, Shannon) or (Ti...    Case 2:15-cv-02528-MHB Document 20-3 Filed 06/16/17 Page 3 of 3 Date  Subject Hours Timekeeper 5/11/2016 Download, file, save and distribute ECF re: Opening brief 0 Callahan, Michelle 6/9/2016 Download, file, save and distribute ECF re: Response brief 0 Callahan, Michelle 8/1/2016 Correspondence to Client re: Federal Court-FYI Memo of Law Mailed 0 Callahan, Michelle 3/24/2017 Download, file, save and distribute ECF re: Order Vacated and remanded 0 Callahan, Michelle 3/24/2017 Download, file, save and distribute ECF re: Clerk's Judgment 0 Callahan, Michelle 3/31/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 3/31/2017 Federal Court-Remand Referral back to Referral Source 0.3 Callahan, Michelle 6/15/2017 EAJA Preparation 1.5 Persse, Shannon 6/16/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 8.60 (Category = Federal Court) and (Type = Time) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Persse, Shannon) or (Ti...   

Exhibit D Expenses

Exhibit D Case 2:15-cv-02528-MHB Document 20-4 Filed 06/16/17 Page 2 of 2 Ledger Jones, Tamara Demia Date  Subject Amount Timekeeper 12/29/2015 Certified Mail Expense Summons and Complaint packets to Defendants $19.47 Callahan, Michelle 1/15/2016 Certified Mail Expense Summons and Complaint packet to USAO reserve $6.00 Callahan, Michelle $25.47 (Category = FC Expense-)   

Exhibit E Affirmation and Waiver of Direct Payment of EAJA Fees

Exhibit E Case 2:15-cv-02528-MHB Document 20-5 Filed 06/16/17 Page 2 of 2 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA (PHOENIX DIVISION)--------------------------------------------------------------MS. TAMARA DEMIA JONES, AFFIRMATION AND WAIVER OF DIRECT PAYMENT Plaintiff, OF EAJA FEES v. Civil Action No.: _________________ CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.---------------------------------------------------------------Ms. Tamara Demia Jones, 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 9, 2015. __________________________ Ms. Tamara Demia Jones Plaintiff

Memorandum in Support

Case 2:15-cv-02528-MHB Document 20-6 Filed 06/16/17 Page 1 of 4 1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Tamara Demia Jones 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Tamara Demia Jones, 13 14 Plaintiff, Civil No. 2-15-cv-02528-PHX-MHB 15 16 vs. MEMORANDUM IN SUPPORT OF 17 PLAINTIFF’S PETITION FOR 18 Carolyn W. Colvin, COUNSEL FEES ALLOWANCE Acting Commissioner of Social UNDER EQUAL ACCESS TO 19 Security, JUSTICE ACT, 28 U.S.C. § 2412 20 21 Defendant 22 Memorandum In Support of Plaintiff’s Petition for Counsel Fees 23 24 Allowance Under Equal Access to Justice Act 25 1. This is a memorandum in support of a petition for an award of 26 Counsel Fees under the Equal Access to Justice Act 28 USCS § 2412 "EAJA." 27 28 Page 8 Case 2:15-cv-02528-MHB Document 20-6 Filed 06/16/17 Page 2 of 4 1 2. An EAJA award is available to a "prevailing party" in a case against 2 the Federal Government, including Social Security cases, in the following 3 4 instances: 5 (a) When and if the plaintiff actually "prevails"; 6 (b) The Government’s position in litigation is "not substantially 7 8 justified"; 9 (c) Plaintiff is a party whose net assets are worth less than two 10 million dollars; and 11 (d) The case has concluded with a "final order" which is non-12 13 appealable, or will not be appealed. 14 3. Addressing these elements in reverse order, it is clear that the 15 Plaintiff has met the burden necessary to receive EAJA fees. 16 17 (a) Plaintiff’s net worth did not exceed $2,000,000.00 when this 18 action was filed. 19 (b) After service of the summons and complaint, and filing of 20 21 Briefs by both parties, the Court issued a Decision and Order remanding to the 22 Commissioner for further administrative proceedings under sentence four of 42 23 U.S.C. § 405(g). 24 25 (c) Judgment was entered on March 24, 2017. The Judgment has 26 not been appealed. 27 (d) Plaintiff has prevailed because the District Court remanded 28 Page 9 Case 2:15-cv-02528-MHB Document 20-6 Filed 06/16/17 Page 3 of 4 1 the case under sentence four of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 2 292 (U.S. 1993). 3 4 4. The commissioner was not substantially justified. As the U. S. 5 6 Supreme Court has held, "the required'not substantially justified’ allegation 7 imposes no proof burden on the fee applicant. It is, as its text conveys, nothing 8 more than an allegation or pleading requirement. The burden of establishing'that 9 the position of the United States was substantially justified’ … must be shouldered 10 11 by the Government." Scarborough v. Principi, 541 U. S. 401, 414 (2004). While 12 the fee applicant such as Plaintiff is required to "show" three of the four 13 elements—prevailing party status, financial eligibility, and amount sought— 14 15 Plaintiff need only "to allege" that the position of the government is not 16 substantially justified. Id. 17 WHEREFORE, because all four elements of an allowable application for 18 19 EAJA fees have been proven, petitioner requests that the Court issue an order: 20 21 1. Awarding an Equal Access to Justice Act Counsel Fee for $5,038.96; 22 and 23 2. If the Plaintiff has no debt registered with the Department of Treasury 24 subject to offset that the fees be made payable to the attorney; and 25 26 3. Awarding Expenses in the amount of $25.47. 27 28 Page 10 Case 2:15-cv-02528-MHB Document 20-6 Filed 06/16/17 Page 4 of 4 1 2 Executed this June 16, 2017 3 4 Respectfully submitted, 5 6/s/Howard D. Olinsky Howard D. Olinsky, Esq. 7 Admitted Pro Hac Vice 8 Attorney for Plaintiff Email: fedct@windisability.com 9 10 To: John S. Leonardo United States Attorney 11 Gerald J. Hill, Esq. 12 Special Assistant U.S. Attorney 13 Office of the General Counsel 14 Social Security Administration 15 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104 16 State Bar No. OR004891 17 Telephone: (206) 615-2139 18 Facsimile: (206) 615-2531 Email: gerald.j.hill@ssa.gov 19 Attorneys for Defendant 20 21 22 23 24 25 26 27 28 Page 11

Certificate of Service

Case 2:15-cv-02528-MHB Document 20-7 Filed 06/16/17 Page 1 of 2 1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Tamara Demia Jones 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Tamara Demia Jones, 13 14 Plaintiff, Civil No. 2-15-cv-02528-PHX-MHB 15 16 vs. CERTIFICATE OF SERVICE 17 18 Carolyn W. Colvin, 19 Acting Commissioner of Social Security, 20 21 Defendant 22 Certificate of Service 23 24 I certify that I have electronically moved for EAJA fees with the Clerk of 25 26 the District Court using the CM/ECF system, which sent notification of such filing 27 to: 28 Page 12 Case 2:15-cv-02528-MHB Document 20-7 Filed 06/16/17 Page 2 of 2 1 To: John S. Leonardo 2 United States Attorney 3 Gerald J. Hill, Esq. 4 Special Assistant U.S. Attorney Office of the General Counsel 5 Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104 State Bar No. OR004891 8 Telephone: (206) 615-2139 9 Facsimile: (206) 615-2531 10 Email: gerald.j.hill@ssa.gov Attorneys for Defendant 11 12 13 June 16, 2017 14/s/Howard D. Olinsky 15 Howard D. Olinsky, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 13

NOTICE OF ATTORNEY SUBSTITUTION: Lars J. Nelson appearing for Commissioner of Social Security Administration. Attorney Gerald J Hill terminated.

Case 2:15-cv-02528-MHB Document 21 Filed 06/29/17 Page 1 of 3 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Lars J. Nelson 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. MN0389274 8 Fax: (206) 615-2531 gerald.j.hill@ssa.gov 9 Telephone: (206) 615-2139 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Tamara Demia Jones, 14 No. CV-15-02528-PHX-MHB 15 Plaintiff, DEFENDANT’S NOTICE OF 16 SUBSTITUTION vs. 17 Carolyn W. Colvin, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 PLEASE TAKE NOTICE that the Defendant in the above-entitled action, 22 23 without waiving any objection to, inter alia, service, venue, or jurisdiction, hereby 24 gives Notice that Gerald J. Hill is withdrawn as counsel to the Commissioner of 25 Social Security. All future mailings regarding this case should be sent to: 26 27 Lars J. Nelson Special Assistant United States Attorney 28 Office of the General Counsel Case 2:15-cv-02528-MHB Document 21 Filed 06/29/17 Page 2 of 3 1 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 2 Seattle, WA 98104-7075 3 State Bar No. MN0389274 Fax: (206) 615-2531 4 gerald.j.hill@ssa.gov 5 Telephone: (206) 615-2139 6 You are advised that service of all further pleadings, notices, documents or other 7 papers herein, not filed electronically, may be made upon Defendant by serving the 8 above-named attorneys at their respective addresses. 9 10 DATED this 29th day of June 2017. 11 Respectfully submitted, 12 13 ELIZABETH A. STRANGE Acting United States Attorney 14 District of Arizona 15 s/Lars J. Nelson 16 LARS J. NELSON 17 Special Assistant United States Attorney 18 Of Counsel for the Defendant: 19 DAVID MORADO 20 Acting Regional Chief Counsel, Social Security Administration Office of the General Counsel, Region X 21 701 Fifth Avenue, Suite 2900 M/S 221A 22 Seattle, WA 98104-7075 23 24 25 26 27 28 2 Case 2:15-cv-02528-MHB Document 21 Filed 06/29/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Notice of Substitution was filed with the Clerk 3 of the Court on June 29, 2017, using the CM/ECF system which will send notification of 4 5 such filing to the following: Howard D Olinsky. 6 7 8 s/Lars J. Nelson 9 LARS J. NELSON Special Assistant U.S. Attorney 10 Office of the General Counsel 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

RESPONSE in Opposition re: [19] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Commissioner of Social Security Administration.

Case 2:15-cv-02528-MHB Document 22 Filed 06/29/17 Page 1 of 11 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Lars J. Nelson 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. MN0389274 8 Fax: (206) 615-2531 lars.nelson@ssa.gov 9 Telephone: (206) 615-2732 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Tamara Demia Jones, 14 No. CV-15-02528-PHX-MHB 15 Plaintiff, 16 DEFENDANT'S RESPONSE TO vs. FIRST MOTION FOR ATTORNEY 17 FEES (ECF NO. 19) Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 INTRODUCTION 22 Plaintiff Tamara Demia Jones moves (ECF No. 19) for an award of $5,038.96 in 23 fees and $25.47 in expenses under the Equal Access to Justice Act (EAJA), 28 USCS 24 25 § 2412. For the reasons set forth below, the Court should deny Jones’s application for 26 fees because the Commissioner was substantially justified in defending this matter. 27///28 Case 2:15-cv-02528-MHB Document 22 Filed 06/29/17 Page 2 of 11 1 BACKGROUND 2 Jones challenged the decision of the administrative law judge (ALJ), arguing that 3 she erred in her assessment of two medical opinions—Drs. Jones and Sayegh. 4 5 See generally ECF No. 15. This Court found no error in the ALJ’s assessment of 6 Dr. Sayegh’s opinion concerning Jones’s physical functioning. ECF No. 17 at 5-9. But, 7 this Court found that the ALJ erred in her assessment of Dr. Potter’s opinion. ECF No. 8 17 at 9-11. The Commissioner argued that the ALJ’s rationale for discounting the 9 10 opinion of Dr. Potter was reasonable and supported by substantial evidence. ECF No. 16 11 at 5-9. This Court, however, disagreed, explaining (1) "the ALJ did not mention the 12 opinions or treatment record of psychological consultants Alvin Smith, Ph. D., and 13 14 Stephen Fair, Ph.D." and, therefore, their opinions cannot support the ALJ’s rejection of 15 Dr. Potter’s opinion; (2) the ALJ’s "focus on Plaintiff’s poor effort during the 16 examination ignored evidence to the contrary"; and (3) "the lack of formal mental health 17 18 treatment cannot serve as evidence that mental health issues are not disabling" ECF No. 19 17 at 10-11. This Court remanded this matter for further administrative proceedings. 20 ECF No. 17 at 12. 21 Jones now seeks attorney fees totaling $4,238.96 and expenses totaling $25.47. 22 23 ECF No. 19 at 2. These fees consists of 8.6 hours of paralegal time at $100 per hour, and 24 22 hours of attorney time at the rate of $192.68. ECF No. 20 at 2. 25 ARGUMENT 26 27 I. The Commissioner’s position was substantially justified. 28 The EAJA provides that "a court shall award to a prevailing party other than the 2 Case 2:15-cv-02528-MHB Document 22 Filed 06/29/17 Page 3 of 11 1 United States fees and other expenses... incurred by that party in any civil action... 2 unless the court finds that the position of the United States was substantially justified or 3 that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). "It is the 4 5 government’s burden to show that its position was substantially justified." Meier v. 6 Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (citation omitted). 7 The "position of the United States" concerns not the issue of disability, but 8 "whether the government was substantially justified in defending the ALJ’s procedural 9 10 errors." Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008). "The'position of the 11 United States’ includes both the government’s litigation position and the underlying 12 agency action giving rise to the civil action." Tobeler v. Colvin, 749 F.3d 830, 832 (9th 13 14 Cir. 2014) (quoting Meier, 727 F.3d at 870). 15 "Substantial justif[ication]" means "justified in substance or in the main—that is, 16 justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 17 18 U.S. 552, 565 (1988) (internal quotation marks omitted). "That is no different from the 19'reasonable basis both in law and fact’ formulation.... To be'substantially justified’ 20 means, of course, more than merely undeserving of sanctions for frivolousness...." Id. 21 at 565–66. "[T]he Government could take a position that is not substantially justified, yet 22 23 win; even more likely, it could take a position that is substantially justified, yet lose." Id. 24 at 552. The question of substantial justification is "one threshold determination for the 25 entire civil action." Commissioner, INS v. Jean, 496 U.S. 154, 159 (1990). But, the 26 27 EAJA fees analysis turns only on the issues "reached" by the district court. Hardisty v. 28 Astrue, 592 F.3d 1072, 1078 (9th Cir. 2010). The fact that the plaintiff prevailed in court 3 Case 2:15-cv-02528-MHB Document 22 Filed 06/29/17 Page 4 of 11 1 "does not raise a presumption that [the government’s] position was not substantially 2 justified." Kali v. Bowen, 854 F.2d 329, 334 (9th Cir. 1988). 3 A. The Commissioner was substantially justified in defending this matter 4 notwithstanding the ALJ’s failure to discuss the opinions of Drs. Smith and 5 Fair. 6 The ALJ did not discuss the opinions of Drs. Smith and Fair. Nevertheless, their 7 opinions are consistent with the ALJ’s residual functional capacity assessment. Compare 8 Tr. 83-85, 103-04 with Tr. 27. The Commissioner can be substantially justified in 9 10 defending a matter even where the Commissioner argues harmless error. Le v. Astrue, 11 529 F.3d 1200, 1202 (9th Cir. 2008) ("Le's brief argument that the Commissioner was not 12 substantially justified in arguing that ALJ Tom's classification of Dr. Miller as a non-13 14 treating source was harmless error is also meritless."). The Commissioner position 15 regarding the opinions of Drs. Smith and Fair is fully consistent with Tenth Circuit’s 16 decision in Mays v. Colvin, 739 F.3d 569, 578–79 (10th Cir. 2014), wherein the Tenth 17 18 Circuit unambiguously held: "[A]n ALJ's failure to weigh a medical opinion involves 19 harmless error if there is no inconsistency between the opinion and the ALJ's assessment 20 of residual functional capacity." As the Seventh Circuit has explained, when the 21 government’s position "had support... of a decision by one our sister circuits...,... 22 23 we hesitate, not merely for the sake of comity, to pronounce irrational" the government’s 24 position. Kolman v. Shalala, 39 F.3d 173, 177 (7th Cir. 1994). 25 The Commissioner also had a reasonable basis in law when citing their opinions 26 27 for two propositions: First, their opinions serve as objective indicia in the record that the 28 ALJ’s residual functional capacity assessment is reasonable. See Warre v. Comm’r of 4 Case 2:15-cv-02528-MHB Document 22 Filed 06/29/17 Page 5 of 11 1 Soc. Sec. Admin., 439 F.3d 1001, 1005 n.3 (9th Cir. 2006) (explaining that the 2 Commissioner is not barred from citing "additional support for the Commissioner's and 3 the ALJ's position"). Second, because Dr. Potter’s opinion conflicted in part with their 4 5 opinions, the ALJ was only required to provide specific and legitimate reasons for 6 discounting Dr. Potter’s opinion. See Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th 7 Cir. 2006) (applying specific and legitimate reasons standard because "a fair reading of 8 the record reveals that [examining physician’s] opinion is inconsistent with the brief, 9 10 conclusory opinion of the state agency reviewing physician..." (emphasis added)). 11 B. The Commissioner was substantially justified in defending the ALJ’s 12 rationale for discounting Dr. Potter’s opinion. 13 The ALJ assigned Dr. Potter’s opinion "reduced weight" for two reasons. Tr. 33. 14 The Commissioner was substantially justified in law and in fact in defending both 15 16 reasons. But, this Court can deny fees even if the Commissioner was not substantially 17 justified as to one reason because an ALJ’s weighing of a medical opinion can be 18 affirmed even if the ALJ errs as to one reason provided. See Molina v. Astrue, 674 F.3d 19 1104, 1111 (9th Cir. 2012) (stating the Court "may not reverse an ALJ's decision on 20 21 account of an error that is harmless"); De Guzman v. Astrue, 343 F. App’ x 201, 206 n.5 22 (9th Cir. 2009) (unpublished) (citing Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 23 1155, 1162 (9th Cir. 2008), for the proposition that an error as to a reason provided for 24 25 discounting a medical opinion can be harmless). Again, the Commissioner can be 26 substantially justified even when arguing harmless error. Le, 529 F.3d at 1202. 27 28 5 Case 2:15-cv-02528-MHB Document 22 Filed 06/29/17 Page 6 of 11 1 1. The Commissioner was substantially justified in defending the ALJ’s rationale that Jones’s poor effort undermined Dr. Potter’s opinion. 2 3 The ALJ found Dr. Potter’s opinion was "inconsistent with the claimant’s poor 4 effort during the examination." Tr. 33. The Commissioner’s position had a reasonable 5 basis in fact because there is no dispute that Dr. Potter specifically found (1) Jones 6 exhibited "low to moderate" effort on testing," Tr. 337, and (2) "[b]ased on [Jones’s] 7 8 varied level of effort and motivation, the results should be viewed with caution," Tr. 338. 9 The Commissioner’s position had reasonable basis in law. The Ninth Circuit has 10 affirmed that an ALJ is permitted to find an inconsistency between a source’s 11 12 examination notes and a source’s opinion. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 13 (9th Cir. 2005) (describing this finding as a "permissible determination within the ALJ’ s 14 province."); cf. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) ("The ALJ need 15 16 not substitute the judgment of expert witnesses for his own."). The Ninth Circuit has also 17 found that poor effort on testing is a valid reason to discount a medical opinion. See 18 Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (discussing Dr. Ho’s opinion). 19 This hold is echoed in multiple unpublished decisions. See, e.g., Oviatt v. Com'r of Soc. 20 21 Sec. Admin., 303 F. App'x 519, 522 (9th Cir. 2008) (holding that ALJ properly 22 discounted "Wicher's opinion regarding the extent of Oviatt's limitations" because 23 "Oviatt failed to give a full effort during the testing"); Ferguson v. Astrue, 225 F. App'x 24 25 719, 720 (9th Cir. 2007) (unpublished) (holding "[t]he ALJ properly discounted 26 Dr. Schatz's report, because Ferguson made a poor effort during her examination...."). 27 Likewise, the Ninth Circuit has consistently found that this is a valid basis to discount a 28 6 Case 2:15-cv-02528-MHB Document 22 Filed 06/29/17 Page 7 of 11 1 claimant’s own complaints. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002); 2 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). 3 The Court’s reliance on unpublished cases from the Districts of Arizona, ECF No. 4 5 17 at 11, demonstrates that the Commissioner’s position was reasonable. "[I]f the 6 governing law is unclear or in flux, it is more likely that the government’s position will 7 be substantially justified." Martinez v. Sec’y of Health & Human Servs., 815 F.2d 1381, 8 1383 (10th Cir. 1987) (citation omitted); see Gonzales v. Free Speech Coal., 408 F.3d 9 10 613, 620 (9th Cir. 2005) (recognizing that prior victories in similar cases and 11 disagreement amongst judges was objective indicia of reasonableness in the 12 government’s position). Likewise, the lack of clear binding authority is probative of 13 14 whether the government’s position was substantially justified.1 See Foster v. 15 Tourtellotte, 704 F.2d 1109, 1113 (9th Cir. 1983); see Allen-Howard v. Comm'r Soc. Sec. 16 Admin., 615 F. App'x 402, 403 (9th Cir. 2015) (unpublished) (explaining that a split 17 18 amongst district courts and a lack of controlling authority supported finding that the 19 Commissioner was substantially justified). 20 Finally, the Commissioner was substantially justified in defending the ALJ’s 21 rationale notwithstanding the fact that other findings in Dr. Potter’s report might support 22 23 Dr. Potter’s opinion. As the Ninth Circuit has explained, "[t]he key question is not 24 1 The Commissioner notes that district court decisions are not binding precedent. 25 Starbuck v. City and County of San Francisco, 556 F.2d 450, 457 n.13 (9th Cir. 1977) (stating that "[t]he doctrine of stare decisis does not compel one district court judge to 26 follow the decision of another"); see also Gasperini v. Ctr. for Humanities, 518 U.S. 415, 27 430 n.10 (1996) ("If there is a federal district court standard, it must come from the Court of Appeals, not from the... district court judges..., each of whom sits alone and 28 renders decisions not binding on the others."). 7 Case 2:15-cv-02528-MHB Document 22 Filed 06/29/17 Page 8 of 11 1 whether there is substantial evidence that could support a finding of disability, but 2 whether there is substantial evidence to support the Commissioner’s actual finding that 3 claimant is not disabled." Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997); see 4 5 also Molina, 674 F.3d at 1111 ("Even when the evidence is susceptible to more than one 6 rational interpretation, [the court] must uphold the ALJ's findings if they are supported by 7 inferences reasonably drawn from the record."). 8 2. The Commissioner was substantially justified in defending the ALJ’s rationale that 9 Jones’s lack of treatment undermined Dr. Potter’s opinion. 10 The ALJ found that Jones’s "general lack of mental health treatment and 11 12 unremarkable mental status examinations during routine office visits" also undermined 13 Dr. Potter’s opinion. Tr. 33. The Commissioner’s position had a reasonable basis in fact 14 because even Jones conceded "there was a lack of mental health treatment...." ECF 15 16 No. 15 at 17. Likewise, Jones did not dispute that mental status examinations were 17 unremarkable; rather, Jones simply disagreed that mental status exams performed within 18 the context of physical examinations were probative. Id. at 17-18. 19 The Commissioner’s position had a reasonable basis in law. The Commissioner’s 20 21 regulations recognize that the ALJ may discount a medical opinion that conflicts with 22 other evidence in the record. See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). 23 Furthermore, the Ninth Circuit has explained that an ALJ may reasonably rely on a lack 24 25 of treatment in a mental health case where "there was no medical evidence that [the 26 claimant’s] resistance [to treatment] was attributable to her mental impairment rather than 27 her own personal preference. Molina, 674 F.3d at 1114. Jones identified no such 28 8 Case 2:15-cv-02528-MHB Document 22 Filed 06/29/17 Page 9 of 11 1 medical evidence here. See ECF No. 15 at 17. Furthermore, in published and 2 unpublished decisions, the Ninth Circuit has specifically held that this is a valid basis to 3 discount a medical opinion. See Chaudhry, 688 F.3d at 671 (discussing Dr. Shultz’s 4 5 opinion); Bustamante v. Colvin, 599 F. App'x 730, 731 (9th Cir. 2015) (unpublished). 6 Again, this Court’s reliance on District of Oregon case law, ECF No. 17 at 11, 7 further demonstrates that the Commissioner’s position was substantially justified. See 8 supra § B.1 (discussing that conflicting case law supports a finding that the government 9 10 was substantially justified). 11 * * * 12 The ALJ decided this matter in FY2014. Tr. 35. In FY2014, this ALJ rendered a 13 14 total of 433 decisions.2 See Social Security, ALJ Disposition Data FY2014 (For 15 reporting Purposes: 9/28/2013 Through 09/26/2014, 16 https://www.ssa.gov/appeals/DataSets/archive/03_FY2014/03_September_ALJ_Dispositi 17 18 on_Data.html (last visited June 29, 2017) (enter "Hopson" into "Search:"). This Court 19 was not tasked with reviewing the ALJ’s 182 decisions awarding benefits. Id. Likewise, 20 this Court was not tasked with reviewing the bulk of the ALJ’s decisions denying 21 applications for benefits. Id. Instead, this Court considered one case wherein there was 22 23 conflicting evidence. Reasonable minds can certainly differ in such cases. But, the 24 EAJA only "redresses governmental abuse, it was never intended to chill the 25 26 2 27 In light of these numbers, it is not surprising that one accomplished Arizona jurist observed 30 years ago that ALJs undertake "an administrative task of staggering 28 proportions...." Bowen v. Yuckert, 482 U.S. 137, 157 (1987) (J. O’Connor, concurring). 9 Case 2:15-cv-02528-MHB Document 22 Filed 06/29/17 Page 10 of 11 1 government's right to litigate or to subject the public fisc to added risk of loss when the 2 government chooses to litigate reasonably substantiated positions, whether or not the 3 position later turns out to be wrong." Roanoke River Basin Ass'n v. Hudson, 991 F.2d 4 5 132, 139 (4th Cir. 1993). There is no such abuse here. 6 The Commissioner recognizes that the fee petition in this matter is minimal when 7 viewed in the context of this Court’s significant docket. But, during the reporting period 8 covering when this matter was filed, the Courts were asked to consider 17,931 Social 9 10 Security cases. See U.S. Courts, Federal Judicial Caseload Statistics 2016, 11 http://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2016 (last 12 visited June 29, 2017) (scroll down to "Civil Filings"). The cumulative effect of EAJA 13 14 awards in Social Security cases is staggering. See Admin. Conf. of the United States, 15 Report of the Chairmen on Agency and Court Awards in FY 2010 Under the Equal 16 Access to Justice Act, at 9 (Jan. 9, 2013), available at http://www.acus.gov/report/equal-17 18 access-justice-act-awards-fy-2010-report-chairman (documenting EAJA fees paid per 19 agency). Thus, the Commissioner defends its position even when the stakes appear to be 20 minimal. The Commissioner respectfully asks that this Court deny fees for the reasons 21 set forth above. 22 23 RELIEF REQUESTED 24 For the reasons set forth above, Jones’s motion (ECF No. 19), should be DENIED. 25 26///27///28 10 Case 2:15-cv-02528-MHB Document 22 Filed 06/29/17 Page 11 of 11 1 DATED this 29th day of June 2017. Respectfully submitted, 2 3 ELIZABETH A. STRANGE Acting United States Attorney 4 District of Arizona 5 s/Lars J. Nelson 6 LARS J. NELSON Special Assistant United States Attorney 7 8 Of Counsel for the Defendant: 9 10 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 11 Office of the General Counsel, Region X 12 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 13 14 15 16 CERTIFICATE OF SERVICE 17 I hereby certify that the foregoing Defendant's Response to First Motion for 18 19 Attorney Fees (ECF No. 19) was filed with the Clerk of the Court on June 29, 20 2017, using the CM/ECF system, which will send notification of such filing to the 21 following: Howard D Olinsky. 22 23 s/Lars J. Nelson 24 LARS J. NELSON 25 Special Assistant U.S. Attorney 26 Office of the General Counsel 27 28 11

REPLY to Response to Motion re: [19] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Tamara Demia Jones.

Case 2:15-cv-02528-MHB Document 23 Filed 07/06/17 Page 1 of 5 Howard D. Olinsky, Esq. 1 Admitted Pro Hac Vice 2 Olinsky Law Group One Park Place 3 300 South State Street, Suite 420 Syracuse, NY 13202 4 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 5 holinsky@windisability.com 6 Attorney for Plaintiff Tamara Demia Jones 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 DISTRICT OF ARIZONA 11 Tamara Demia Jones, 12 Plaintiff, Civil No. 2:15-cv-02528-PHX-MHB 13 vs. 14 PLAINTIFF’S REPLY TO Nancy A. Berryhill, DEFENDANT’S RESPONSE TO 15 Acting Commissioner of Social MOTION FOR ATTORNEY FEES Security, 16 17 Defendant 18 ARGUMENT 19 In order to find substantial justification to deny an award of attorney’s fees, the 20 Court must find that Defendant’s conduct was reasonable in both law and fact. Sampson 21 v. Chater, 103 F.3d 918, 921 (9th Cir. 1996). The burden of proof is on the 22 Commissioner. Id. The Court’s decision is based on both Defendant’s litigation position 23 and the underlying ALJ decision. Id. 24 25 26 27 1 28 Case 2:15-cv-02528-MHB Document 23 Filed 07/06/17 Page 2 of 5 1. The Commissioner was not substantially justified in defending the ALJ’s 1 rationale that Jones’ poor effort undermined Dr. Potter’s opinion. 2 Defendant argues that she was substantially justified in defending this case 3 because the ALJ can appropriately reject an examining source’s opinion based on 4 Plaintiff’s poor effort. Defendant’s Response to First Motion for Attorney Fees ("Dkt. 5 6 No. 22") at 6. She argues the determination was reasonable in fact because Dr. Potter 7 noted Plaintiff exhibited low effort and the results of testing should be reviewed with 8 caution. Id. However, the issue in this case, and one of the reasons for remand, was the 9 ALJ’s failure to consider all the evidence in Dr. Potter’s report. Order (Dkt. No. 17") at 10 11. As discussed in Plaintiff’s Opening Brief ("Dkt. No. 15"), Dr. Potter’s findings 11 suggest Plaintiff suffered from mental-related limitations, regardless of poor effort. Dkt. 12 No. 15 at 14-17. The ALJ’s failure to consider all the evidence contained in Dr. Potter’s 13 14 report renders the decision unreasonable in fact. Sampson, 103 F.3d at 922. 15 Defendant further argues that her position was reasonable in law because poor 16 effort on testing is a legitimate basis to disregard an opinion. Dkt. No. 22 at 6. She 17 argues that the Court’s reliance on unpublished cases proves that her position was 18 reasonable. Id. at 7. Again, Defendant misses the issue. The Court’s decision to remand 19 was based on the ALJ’s failure to consider all the evidence. Dkt. No. 17 at 11. While the 20 21 Court may have cited to unpublished decisions, there are numerous published decisions 22 from the Ninth Circuit that hold an ALJ cannot ignore evidence. See e.g., Smolen v. 23 Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)(holding that the ALJ erred by ignoring 24 medical evidence of impairments); Cotton v. Bowen, 799 F.2d 1403, 1408-09 (9th Cir. 25 1986)(superseded by statute on a different issue)(holding that the ALJ’s findings were not 26 27 2 28 Case 2:15-cv-02528-MHB Document 23 Filed 07/06/17 Page 3 of 5 supported by substantial evidence because the ALJ completely ignored the doctor’s 1 2 medical findings); Edlund v. Massanari, 253 F.3d 1152, 1158-60 (9th Cir. 2001)(holding 3 that the rejection of an examining psychologist’s opinion was error because the ALJ 4 focused on only the aspects of the opinion that suggested non-disability); Day v. 5 Weinberger, 522 F.2d 1154, 1156 (9th Cir, 1975)(holding that the ALJ cannot reach a 6 conclusion "simply by isolating a specific quantum of supporting evidence"). 7 In the Ninth Circuit, a decision finding that the ALJ’s determination was not 8 supported by substantial evidence is a strong indication that the underlying position is not 9 10 substantially justified. Meier v. Colvin, 727 F.3d 867, 872 (9th Cir. 2013). In such cases, 11 the Court need not consider Defendant’s litigation position. Id. When an ALJ ignores 12 substantial evidence, the Court will find Defendant was not substantially justified in fact 13 and law. Sampson, 103 F.3d at 920. 14 The ALJ’s decision was remanded because the ALJ ignored evidence. The ALJ’s 15 decision was unreasonable in both fact and law, and Defendant’s stance during litigation 16 was also unreasonable in both fact and law. Defendant does not attempt to address the 17 18 issue that the ALJ ignored evidence, but instead continues to argue that the ALJ provided 19 an appropriate reason for rejecting the opinion. Dkt. No. 22 at 6-8. Therefore, Defendant 20 has failed to meet her burden of proof. 21 2. The Commissioner was not substantially justified in defending the ALJ’s 22 rationale that Jones’ lack of treatment undermined Dr. Potter’s opinion. 23 Defendant argues that she was substantially justified in defending this case 24 because the ALJ is allowed to rely on the lack of treatment to reject an opinion. Dkt. No. 25 22 at 8. Further, she argues her position was justified because the Court relied on a case 26 27 3 28 Case 2:15-cv-02528-MHB Document 23 Filed 07/06/17 Page 4 of 5 in the District of Oregon to support remand. Id. at 9. However, there is well established 1 2 precedent in the Ninth Circuit that supports the Court’s remand order. 3 Defendant’s position in litigation was not reasonable in law. There is well 4 established precedent in the Ninth Circuit stating that, in cases of mental health, lack of 5 treatment is not a legitimate basis to reject a medical opinion or a claimant’s allegations. 6 See e.g., Regennitter v. Commr. of Soc. Sec., 166 F.3d 1294, 1299-1300 (9th Cir. 7 1999)(holding that the ALJ could not use the failure to seek treatment to reject a doctor’s 8 opinion when the plaintiff did not have the resources to seek treatment); Nguyen v. 9 10 Chater, 100 F.3d 4162, 1465 (9th Cir. 1996)(holding that it is "questionable practice to 11 chastise one with a mental impairment for the exercise of poor judgment in seeking 12 rehabilitation"); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)(holding that the ALJ 13 must rely on evidence, such as an unexplained, or inadequately explained, failure to seek 14 treatment, to reject a claimant’s allegations). 15 It is well established law that the ALJ must provide legitimate reasons to reject an 16 examining physician’s opinion. Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995). 17 18 When the ALJ rejects an opinion based on an illegitimate reason, it is an error of law. Id. 19 at 830. The Court determined that the ALJ’s rejection of Dr. Potter’s opinion based on 20 Plaintiff’s lack of mental health treatment was not a legitimate reason because lack of 21 treatment is not evidence that a mental impairment is not disabling. Dkt. No. 17 at 11. 22 Since the ALJ did not provide a legitimate reason, the underlying action is not reasonable 23 in law. Lester, at 830. 24 25 Defendant did not attempt to argue that there was no legitimate reason for 26 Plaintiff’s failure to seek treatment, and the ALJ did not claim Plaintiff did not have a 27 4 28 Case 2:15-cv-02528-MHB Document 23 Filed 07/06/17 Page 5 of 5 valid reason. Instead, Defendant continues to argue that the ALJ properly relied on lack 1 2 of treatment to discredit Dr. Potter’s opinion. Therefore, both the ALJ’s decision and 3 Defendant’s litigation position are unreasonable in law. 4 CONCLUSION For the foregoing reasons, it is respectfully requested that the Court grant 5 6 Plaintiff’s motion for attorney’s fees. 7 July 6, 2017/s/Howard D. Olinsky 8 Howard D. Olinsky, Esq. 9 Admitted Pro Hac Vice Olinsky Law Group 10 One Park Place 300 South State Street, Suite 420 11 Syracuse, NY 13202 Telephone: (315) 701-5780 12 Facsimile: (315) 701-5781 13 holinsky@windisability.com 14 15 16 17 18 19 20 21 22 23 24 25 26 27 5 28

ORDER granting [19] Plaintiff Tamara Demia Jones's Motion for Attorney Fees. Plaintiff is awarded $5,064.43 pursuant to the Equal Access to Justice Act. See PDF document for details. Signed by Magistrate Judge Michelle H Burns on 9/18/17.

Case 2:15-cv-02528-MHB Document 24 Filed 09/18/17 Page 1 of 6 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tamara Demia Jones,) CIV 15-2528-PHX-MHB) 10 Plaintiff,) ORDER) 11 vs.)) 12 Nancy A. Berryhill, Commissioner of the) Social Security Administration,) 13) Defendant.) 14) 15 Pending before the Court is Plaintiff Tamara Demia Jones’ motion for attorney’s fees 16 under the Equal Access to Justice Act ("EAJA") (Doc. 19). After reviewing the arguments 17 of the parties, the Court now issues the following ruling. 18 Plaintiff filed applications for disability insurance benefits and supplemental security 19 income alleging disability beginning January 1, 2007. Her applications were denied initially 20 and on reconsideration. Plaintiff requested a hearing before an administrative law judge. A 21 hearing was held on June 16, 2014, and the ALJ issued a decision finding that Plaintiff was 22 not disabled. The Appeals Council denied Plaintiff’s request for review, making the ALJ’s 23 decision the final decision of the Commissioner. Plaintiff then sought judicial review of the 24 ALJ’s decision pursuant to 42 U.S.C. § 405(g). 25 This Court, after reviewing the administrative record and the arguments of the parties, 26 vacated the Commissioner’s decision and remanded this matter to the Commissioner for 27 further administrative proceedings. (Doc. 17.) Specifically, the Court found that although 28 "the ALJ properly weighed the medical source opinion evidence related to Plaintiff’s Case 2:15-cv-02528-MHB Document 24 Filed 09/18/17 Page 2 of 6 1 physical impairments, and gave specific and legitimate reasons, based on substantial 2 evidence in the record, for discounting Dr. Sayegh’s opinion," the Court determined that the 3 ALJ erred in her mental residual functional capacity assessment. Specifically, the Court 4 concluded that the ALJ failed to provide specific, legitimate reasons based on substantial 5 evidence in the record for giving reduced weight to Dr. Potter’s opinion. The Court stated: 6 the ALJ did not mention the opinions or treatment record of psychological consultants Alvin Smith, Ph. D., and Stephen Fair, Ph. D. (Tr. at 20-39.) Dr. 7 Potter is the only source in the record whose opinion the ALJ discussed or weighed. The ALJ did not discuss or indicate what degree of weight she 8 afforded to the opinions of Dr. Smith (Tr. at 84-85), and Dr. Fair (Tr. at 104-05). Even if the non-examining opinions support the ALJ’s decision, the 9 ALJ has not provided any explanation whether the evidence supports those opinions sufficiently for the ALJ to properly rely on them. See Garrison v. 10 Colvin, 795 F.3d 995, 1012 (9th Cir. 2014) (noting differences in treatment of opinions from different sources and indicating that "the opinion of an 11 examining physician is entitled to greater weight than that of a non-examining physician"); Bain v. Astrue, 319 Fed.Appx. 543, 546 (9th Cir. 12 2009)("Evidence from state agency consultant physicians must be treated as'expert opinion evidence;’ thus, the ALJ'may not ignore these opinions and 13 must explain the weight given to these opinions in their decisions’") (quoting SSR 96-6p). Additionally, the justification for the rejection that was given by 14 the ALJ was not supported by substantial evidence. Instead, the ALJ gave reduced weight because it was inconsistent with Plaintiff’s poor effort during 15 the examination as well as Plaintiff’s general lack of mental health treatment and unremarkable mental status examinations during routine office visits. (Tr. 16 at 33.) The focus on Plaintiff’s poor effort during the examination ignored evidence to the contrary. An ALJ is not permitted to rely on evidence 17 supporting her conclusions while ignoring evidence contrary to those conclusions. See Maydanis v. Colvin, 119 F.Supp.3d 969, 976 (D. Ariz. 2015); 18 Provencio v. Astrue, 2012 U.S. Dist. LEXIS 85294, at *48 (D. Ariz., June 20, 2012) (finding "[i]t was improper for the ALJ to selectively reference 19 plaintiff’s treatment records to support her conclusion, while ignoring other treatment records contradicting that conclusion"). Moreover, the lack of formal 20 mental health treatment cannot serve as evidence that mental health issues are not disabling. See Rivera v. Colvin, 2013 U.S. Dist. LEXIS 161035, *9-10 (D. 21 Or., Nov. 12, 2013). 22 The EAJA allows "a prevailing party other than the United States fees and other 23 expenses... incurred by that party in any civil action... unless the court finds that the position 24 of the United States was substantially justified or that special circumstances make an award 25 unjust." 28 U.S.C. § 2412(d)(1)(A). An applicant for disability benefits becomes a prevailing 26 party for the purposes of the EAJA if the denial of her benefits is reversed and remanded 27 regardless of whether disability benefits are ultimately awarded. See Shalala v. Schaefer, 509 28 U.S. 292, 300-02 (1993).-2-Case 2:15-cv-02528-MHB Document 24 Filed 09/18/17 Page 3 of 6 1 The "position of the United States" includes both its litigating position and the "action 2 or failure to act by the agency upon which the civil action is based." 28 U.S.C. § 3 2412(d)(2)(D). For this position to be substantially justified, it must be "justified in substance 4 or in the main – that is, justified to a degree that could satisfy a reasonable person." Pierce 5 v. Underwood, 487 U.S. 552, 565 (1988) (holding that substantially justified means having 6 a reasonable basis both in law and fact). In EAJA actions, the government bears the burden 7 of proving that its position was substantially justified. See Gonzales v. Free Speech 8 Coalition, 408 F.3d 613, 618 (9th Cir. 2005). However, "the government’s failure to prevail 9 does not raise a presumption that its position was not substantially justified." Kali v. Bowen, 10 854 F.2d 329, 332 (9th Cir. 1988). 11 When analyzing the government’s position for substantial justification, the Court’s 12 inquiry should be focused on the issue that was the basis for remand and not the merits of 13 Plaintiff’s claim in its entirety or the ultimate disability determination. See Flores v. Shalala, 14 49 F.3d 562, 569 (9th Cir. 2008); see also Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 15 1998) ("The government’s position must be substantially justified at each stage of the 16 proceedings."). 17 Plaintiff moves for an award of attorney’s fees and costs under the EAJA in the 18 amount of $5,064.43. Defendant opposes Plaintiff’s request, arguing that the government’s 19 position was substantially justified. It is undisputed that Plaintiff is the prevailing party. 20 Therefore, the issue before the Court is whether Defendant’s position in opposing Plaintiff’s 21 appeal was "substantially justified." Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008). 22 Having reviewed the parties’ pleading and the record in this matter, the Court concludes that 23 Defendant’s decision to defend the ALJ’s determination was not substantially justified. 24 In its response, Defendant argues that the Commissioner was substantially justified 25 in defending the ALJ’s rationale that Plaintiff’s poor effort undermined Dr. Potter’s opinion. 26 Defendant states that there was a reasonable basis in fact because "there is no dispute that Dr. 27 Potter specifically found (1) Jones exhibited'low to moderate’ effort on testing,... and (2) 28-3-Case 2:15-cv-02528-MHB Document 24 Filed 09/18/17 Page 4 of 6 1'[b]ased on [Jones’s] varied level of effort and motivation, the results should be viewed with 2 caution,’...." 3 As stated previously, however, one of the reasons for remand was that the ALJ failed 4 to consider all of the evidence – instead focusing merely on Plaintiff’s "poor effort" during 5 examination. The Court specifically stated: 6 Additionally, the justification for the rejection that was given by the ALJ was not supported by substantial evidence.... The focus on Plaintiff’s poor effort 7 during the examination ignored evidence to the contrary. An ALJ is not permitted to rely on evidence supporting her conclusions while ignoring 8 evidence contrary to those conclusions. See Maydanis v. Colvin, 119 F.Supp.3d 969, 976 (D. Ariz. 2015); Provencio v. Astrue, 2012 U.S. Dist. 9 LEXIS 85294, at *48 (D. Ariz., June 20, 2012) (finding "[i]t was improper for the ALJ to selectively reference plaintiff’s treatment records to support her 10 conclusion, while ignoring other treatment records contradicting that conclusion"). 11 Indeed, it was improper for the ALJ to selectively reference evidence supporting her 12 conclusions, while ignoring other records contradicting that conclusion. See Gallant v. 13 Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (stating that it is error for an ALJ to ignore or 14 misstate the competent evidence in the record in order to justify her conclusion); Day v. 15 Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (stating that an ALJ is not permitted to 16 reach a conclusion "simply by isolating a specific quantum of supporting evidence"); 17 Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir. 1982) ("[A]n ALJ must weigh all the 18 evidence and may not ignore evidence that suggests an opposite conclusion.") (citation 19 omitted). 20 Defendant also argues that the Commissioner was substantially justified in defending 21 the ALJ’s rationale that Plaintiff’s lack of treatment undermined Dr. Potter’s opinion. 22 Defendant states that an ALJ may reasonably rely on a lack of treatment in a mental health 23 case. 24 In her decision, the ALJ gave another reason for remand stating, "[m]oreover, the lack 25 of formal mental health treatment cannot serve as evidence that mental health issues are not 26 disabling. See Rivera v. Colvin, 2013 U.S. Dist. LEXIS 161035, *9-10 (D. Or., Nov. 12, 27 2013)." 28-4-Case 2:15-cv-02528-MHB Document 24 Filed 09/18/17 Page 5 of 6 1 Although it is sometimes "reasonable for [an Administrative Law Judge ("ALJ")] to 2 conclude that the level or frequency of treatment [is] inconsistent with the level of 3 complaints," Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (internal quotation marks 4 omitted), "an adjudicator must not draw any inferences about an individual’s symptoms and 5 their functional effects from a failure to seek or pursue regular medical treatment without 6 first considering any explanations that the individual may provide, or other information in 7 the case record, that may explain infrequent or irregular medical visits or failure to seek 8 medical treatment." Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (internal quotation 9 marks omitted). Here, there is no indication the ALJ sought to consider any explanation. 10 Thus, lack of treatment is not a legitimate basis to reject a medical opinion or a claimant’s 11 allegations. See Nguyen v. Chater, 100 F.3d 4162, 1465 (9th Cir. 1996) (holding that it is 12 "questionable practice to chastise one with a mental impairment for the exercise of poor 13 judgment in seeking rehabilitation"); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) 14 (holding that the ALJ must rely on evidence, such as an unexplained, or inadequately 15 explained, failure to seek treatment, to reject a claimant’s allegations). 16 The Court finds that the law in these areas is well-settled and leaves little room for 17 dispute as the Ninth Circuit has consistently found that when an ALJ commits fundamental 18 procedural errors, the defense of these errors lacks substantial justification. See, e.g., Roe v. 19 Comm’r of Soc. Sec., 651 Fed.Appx. 583, 585 (9th Cir. 2016); Corbin, 149 F.3d at 1053 20 (finding that the government’s "defense of basic and fundamental errors" is "difficult to 21 justify"); Shafer, 518 F.3d at 1072 (recognizing that an ALJ may commit a fundamental 22 procedural error by rejecting a treating physician’s opinion in favor of a non-treating 23 physician’s opinion without providing convincing reasons). Therefore, the government’s 24 defense of the ALJ’s errors was not substantially justified, and Plaintiff is entitled to 25 attorney’s fees under the EAJA. 26 Plaintiff’s counsel, Howard D. Olinsky, has filed an itemized statement of fees and 27 costs on this case. Having reviewed the statement of fees and costs, and having considered 28-5-Case 2:15-cv-02528-MHB Document 24 Filed 09/18/17 Page 6 of 6 1 the relevant fee award factors, see Hensley v. Eckerhart, 461 U.S. 424, 429-30 & n.3 (1983), 2 the Court finds that the amount of the requested fee award is reasonable. 3 Accordingly, 4 IT IS ORDERED that Plaintiff Tamara Demia Jones’s motion for attorney’s fees 5 under the Equal Access to Justice Act (Doc. 19) is GRANTED; 6 IT IS FURTHER ORDERED that Plaintiff is awarded $5,064.43 pursuant to the 7 Equal Access to Justice Act; 8 IT IS FURTHER ORDERED that, pursuant to the assignment of fees in Plaintiff’s 9 fee agreement, the government shall pay the fee award, subject to offset any pre-existing debt 10 that Plaintiff owes the United States, payable to Plaintiff, care of counsel’s office: Howard 11 D. Olinsky, 300 South State Street, Suite 420, Syracuse, NY 13202. 12 DATED this 18th day of September, 2017. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28-6-

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Description
1
12/11/2015
COMPLAINT filed by Tamara Demia Jones.(submitted by Howard Olinsky)
1
https://ecf.azd.uscourts.gov/doc1/025115242773" onClick="goDLS{{'/doc1/025115242773','956652','6','','2','1','',''}};">1</a> Civil Cover Sheet)
1 Attachment
2
12/11/2015
APPLICATION for Leave to Proceed In Forma Pauperis by Tamara Demia Jones.(submitted by Howard Olinsky)
3
12/11/2015
SUMMONS Submitted by Tamara Demia Jones.(submitted by Howard Olinsky)
1
Summons
2
https://ecf.azd.uscourts.gov/doc1/025115242821" onClick="goDLS{{'/doc1/025115242821','956652','10','','2','1','',''}};">2</a> Summons)
2 Attachments
4
12/11/2015
This case has been assigned to the Honorable David G Campbell. All future pleadings or documents should bear the correct case number: CV-15-2528-PHX-DGC. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached.
5
12/14/2015
SCHEDULING ORDER. Signed by Judge David G Campbell on 12/14/2015.
6
12/14/2015
ORDER granting 2 Plaintiff's application for leave to proceed in form a pauperis, without prepayment of costs or fees. Plaintiff shall be responsible for service by waiver or of the summons and complaint. Signed by Judge David G Campbell on 12/14/15.
7
12/14/2015
MOTION for Admission Pro Hac Vice as to attorney Howard D. Olinsky by Tamara Demia Jones.
1
Letter to Clerk
1 Attachment
8
12/15/2015
Summons Issued as to Carolyn W Colvin, U.S. Attorney and U.S. Attorney General.
1
Summons
2
https://ecf.azd.uscourts.gov/doc1/025115250401" onClick="goDLS{{'/doc1/025115250401','956652','20','','2','1','',''}};">2</a> Summons)
2 Attachments
12/21/2015
PRO HAC VICE FEE PAID. $ 35, receipt number PHX166498 as to Howard D Olinsky. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
9
12/21/2015
ORDER pursuant to General Order 09-08 granting 7 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
10
01/12/2016
NOTICE OF ATTORNEY APPEARANCE: Gerald J. Hill appearing for Carolyn W Colvin.
11
01/20/2016
*SERVICE EXECUTED filed by Tamara Demia Jones: Proof of Service re: Summons, Complaint and Scheduling Order upon US Attorney's Office on 1/19/2016, Office of General Counsel on 1/11/2016 and Attorney General on 1/4/2016. *Modified to correct service dates on 1/21/2016
12
02/12/2016
CONSENT TO MAGISTRATE JUDGE TRIAL. Magistrate Judge Michelle H Burns added. Judge David G Campbell no longer assigned to case. All further pleadings shall list the following case number: CV-15-2528-PHX-MHB. Signed by Judge David G Campbell on 2/11/16.
13
03/11/2016
ANSWER to 1 Complaint by Carolyn W Colvin.
14
03/11/2016
NOTICE of Filing Certified Copy of Administrative Transcript filed by Carolyn W Colvin.
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
15
05/10/2016
OPENING BRIEF by Tamara Demia Jones.
1
Certificate of Service
1 Attachment
16
06/09/2016
RESPONSE BRIEF by Carolyn W Colvin.
17
03/24/2017
ORDER - The Commissioner's decision is VACATED and this matter is REMANDED to the Commissioner for further administrative proceedings as set forth in this Order. FURTHER ORDERED directing the Clerk of the Court to enter judgment accordingly. See document for complete details. Signed by Magistrate Judge Michelle H Burns on 3/24/2017.
18
03/24/2017
CLERK'S JUDGMENT - Pursuant to the Court's Order filed March 24, 2017, the decision of the Commissioner of Social Security is vacated, and this case is remanded to the Social Security Administration for further proceedings consistent with the Order.
19
06/16/2017
First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Tamara Demia Jones.
1
Text of Proposed Order
1 Attachment
20
06/16/2017
AFFIDAVIT of Howard D. Olinsky, Esq. re: [19] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Plaintiff Tamara Demia Jones.
1
Exhibit A All Professional Time
2
Exhibit B Attorney Time
3
Exhibit C Paralegal Time
4
Exhibit D Expenses
5
Exhibit E Affirmation and Waiver of Direct Payment of EAJA Fees
6
Memorandum in Support
7
Certificate of Service
7 Attachments
21
06/29/2017
NOTICE OF ATTORNEY SUBSTITUTION: Lars J. Nelson appearing for Commissioner of Social Security Administration. Attorney Gerald J Hill terminated.
22
06/29/2017
RESPONSE in Opposition re: [19] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Commissioner of Social Security Administration.
23
07/06/2017
REPLY to Response to Motion re: [19] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Tamara Demia Jones.
24
09/18/2017
ORDER granting [19] Plaintiff Tamara Demia Jones's Motion for Attorney Fees. Plaintiff is awarded $5,064.43 pursuant to the Equal Access to Justice Act. See PDF document for details. Signed by Magistrate Judge Michelle H Burns on 9/18/17.
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