King v. Berryhill
Court Docket Sheet

District of Alaska

3:2018-cv-00007 (akd)

COMPLAINT against Nancy A. Berryhill, filed by Marcus Loyd King.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA MARCUS LOYD KING, Case No. 3: 18 - cy - 00007 Plaintiff (s), VS. NANCY A. BERRYHILL, Acting Commissioner of Social Security MOTION AND APPLICATION OF NON - ELIGIBLE ATTORNEY FOR PERMISSION TO APPEAR AND PARTICIPATE IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA Defendant (s) . To the Honorable Judge of the above - entitled court: I, Edward A. Wicklund, hereby apply for permission to appear and (name) participate as counsel for MARCUS LOYD KING, plaintiff (Name of party) (plaintiff / defendant) in the above - entitled cause pursuant to Rule 83. 1 (d) of the Local Rules for the United States District Court, District of Alaska. I hereby apply for permission to appear and participate as counsel WITHOUT ASSOCIATION of local counsel because [ check whichever of the following boxes apply, if any ]: X I am a registered participant in the CM / ECF System for the District of Alaska and consent to service by electronic means through the court's CM / ECF System. I have concurrently herewith submitted an application to the Clerk of the Court for registration as a participant in the CM / ECF System for the District of Alaska and consent to service by electronic means through the court's CM / ECF System. O For the reasons set forth in the attached memorandum. OR I hereby designate, a member of the Bar of this court, (Name) who maintains an office at the place within the district, with whom the court and opposing counsel may readily communicate regarding conduct of this case. DATE: June 19, 2017 (Signature) Edward A. Wicklund (Printed Name) (Address) (City / State / Zip) (Telephone Number) (e - mail address) Consent of Local Counsel * I hereby consent to the granting of the foregoing application. DATE: (Signature) (Printed Name) (Address) (City, State, Zip) (Telephone) (* Member of the Bar of the United States District Court for the District of Alaska) DECLARATION OF NON - ELIGIBLE ATTORNEY Full Name: Edward A. Wicklund Business Address: 300 S. South Street, Ste. 420, Syracuse, NY 13202 (Mailing / Street) (City, State, ZIP) Residence: 313 E. Willow Street, Apt. 506, Syracuse, NY 13203 (Mailing / Street) (City, State, ZIP) Business Telephone: 315 - 701 - 5780 e - mail address: twicklund @ windisability. com Other Names / Aliases: N / A Jurisdictions to Which Admitted and year of Admission: See attached sheet (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) Are you the subject of any pending disciplinary proceeding in any jurisdiction to which admitted ? Yes es, provide details on a separate attached sheet) Have you ever been suspended from practice or disbarred in any jurisdiction to which admitted ? Yes D No X (If Yes, provide details on a separate attached sheet) In accordance with D. AK. LR 83. 1 (d) (4) [ A ] (vi), I certify I have read the District of Alaska local rules by visiting the court's website at http: / / www. akd. uscourts. gov and understand that the practices and procedures of this court may differ from the practices and procedures in the courts to which I am regularly admitted. A Certificate of Good Standing from a jurisdiction to which I have been admitted is attached. Pursuant to 28U.S. C. g1746, I hereby declare under penalty of perjury that the foregoing information is true, correct, and accurate. Dated: January 10, 2018 C CS (Signature of Applicant) Attachment to Pro Hac Vice Application for Edward A. Wicklund: Fr Court New York State Court of Appeals for 2nd Circuit Court of Appeals for 9th CircuitU.S. D. C ., NDNYU.S. D. C ., NDOHU.S. D. C ., EDMI Date of Admission 02 / 23 / 2012 01 / 08 / 2015 04 / 28 / 2017 07 / 29 / 2013 08 / 05 / 2016 02 / 24 / 2017 In Good Standing ? YES YES YES YES YES YES

Exhibit A

AO 136 (Rev. 10/13) Certificate of Good Standing UNITED STATES DISTRICT COURT for the Northern District of New York CERTIFICATE OF GOOD STANDING I, Lawrence K. Baerman, Clerk of this Court, certify that EDWARD A. WICKLUND, Bar # 518285, was duly admitted to practice in this Court on July 29, 2013, and is in good standing as a member of the Bar of this Court. Dated at Syracuse, New York on January 10, 2018 (Location) (Date) Lawrence K. Baerman CLERK DEPUTY CLERK

Unissued summons re Defendant Nancy A. Berryhill

AO 440 (Rev. 06 / 12) Suminons in a Civil Action UNITED STATES DISTRICT COURT for the District of Alaska MARCUS LOYD KING Plaintiff (s) V. Civil Action No. NANCY A. BERRYHILL, acting Commissioner of Social Security Defendant (s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) Nancy A. Berryhill Commissioner of SSA Office of Regional Chief Counsel, Region X 701 Fifth Avenue, Suite 2900 MIS 221A Seattle, WA 98104 - 7075 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St ., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk AO 440 (Rev. 06 / 12) Summons in a Civil Action (Page 2) Civil Action No. . . PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (0)) 40 EL. This summons for (name of individual and title, if any) was received by me on (date) O I personally served the summons on the individual at (place) - - - - - - - - - - - - - - - - . . - on (date); or I I left the summons at the individual's residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual's last known address; or, who is O I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date); or 0 I returned the summons unexecuted because; or O Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

Unissued Summons re Defendant U.S. Attorney General

AO 440 (Rev. 06 / 12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Alaska MARCUS LOYD KING Plaintiff (s) V. Civil Action No. NANCY A. BERRYHILL, acting Commissioner of Social Security Defendant (s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) United States Attorney General Constitution Avenue & 10th St ., NW Washington, DC 20530 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3) - - you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St ., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk AO 440 (Rev. 06 / 12) Summons in a Civil Action (Page 2) Civil Action No. WWW. CATAT PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (1)) This summons for (name of individual and title, if any) was received by me on (date) O I personally served the summons on the individual at (place) on (date); or O I left the summons at the individual's residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual's last known address; or, who is O I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date); or O I returned the summons unexecuted because; or - - . - . - . - . . J Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

Unissued Summons re Defendant U.S. Attorney

AO 440 (Rev. 06 / 12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Alaska MARCUS LOYD KING Plaintiff (s) V. - UUUUUUUU Civil Action No. NANCY A. BERRYHILL, acting Commissioner of Social Security Defendant (s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) Civil Process Clerk United States Attorney's Office 222 W. 7th St ., Rm. 253, # 9 Anchorage, AK 99513 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3) - - you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St ., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk AO 440 (Rev. 06 / 12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (0)) This summons for (name of individual and title, if any) was received by me on (date) O I personally served the summons on the individual at (place) on (date); or O I left the summons at the individual's residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual's last known address; or, who is O I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date); or J I returned the summons unexecuted because; or D Other (specify); My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Edward A. Wicklund. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2452237.) by Marcus Loyd King.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA MARCUS LOYD KING, Case No. 3: 18 - cy - 00007 Plaintiff (s), VS. NANCY A. BERRYHILL, Acting Commissioner of Social Security MOTION AND APPLICATION OF NON - ELIGIBLE ATTORNEY FOR PERMISSION TO APPEAR AND PARTICIPATE IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA Defendant (s) . To the Honorable Judge of the above - entitled court: I, Edward A. Wicklund, hereby apply for permission to appear and (name) participate as counsel for MARCUS LOYD KING, plaintiff (Name of party) (plaintiff / defendant) in the above - entitled cause pursuant to Rule 83. 1 (d) of the Local Rules for the United States District Court, District of Alaska. I hereby apply for permission to appear and participate as counsel WITHOUT ASSOCIATION of local counsel because [ check whichever of the following boxes apply, if any ]: X I am a registered participant in the CM / ECF System for the District of Alaska and consent to service by electronic means through the court's CM / ECF System. I have concurrently herewith submitted an application to the Clerk of the Court for registration as a participant in the CM / ECF System for the District of Alaska and consent to service by electronic means through the court's CM / ECF System. O For the reasons set forth in the attached memorandum. OR I hereby designate, a member of the Bar of this court, (Name) who maintains an office at the place within the district, with whom the court and opposing counsel may readily communicate regarding conduct of this case. DATE: June 19, 2017 (Signature) Edward A. Wicklund (Printed Name) (Address) (City / State / Zip) (Telephone Number) (e - mail address) Consent of Local Counsel * I hereby consent to the granting of the foregoing application. DATE: (Signature) (Printed Name) (Address) (City, State, Zip) (Telephone) (* Member of the Bar of the United States District Court for the District of Alaska) DECLARATION OF NON - ELIGIBLE ATTORNEY Full Name: Edward A. Wicklund Business Address: 300 S. South Street, Ste. 420, Syracuse, NY 13202 (Mailing / Street) (City, State, ZIP) Residence: 313 E. Willow Street, Apt. 506, Syracuse, NY 13203 (Mailing / Street) (City, State, ZIP) Business Telephone: 315 - 701 - 5780 e - mail address: twicklund @ windisability. com Other Names / Aliases: N / A Jurisdictions to Which Admitted and year of Admission: See attached sheet (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) Are you the subject of any pending disciplinary proceeding in any jurisdiction to which admitted ? Yes es, provide details on a separate attached sheet) Have you ever been suspended from practice or disbarred in any jurisdiction to which admitted ? Yes D No X (If Yes, provide details on a separate attached sheet) In accordance with D. AK. LR 83. 1 (d) (4) [ A ] (vi), I certify I have read the District of Alaska local rules by visiting the court's website at http: / / www. akd. uscourts. gov and understand that the practices and procedures of this court may differ from the practices and procedures in the courts to which I am regularly admitted. A Certificate of Good Standing from a jurisdiction to which I have been admitted is attached. Pursuant to 28U.S. C. g1746, I hereby declare under penalty of perjury that the foregoing information is true, correct, and accurate. Dated: January 10, 2018 C CS (Signature of Applicant) Attachment to Pro Hac Vice Application for Edward A. Wicklund: Court New York State Court of Appeals for 2nd Circuit Court of Appeals for 9th CircuitU.S. D. C ., NDNYU.S. D. C ., NDOHU.S. D. C ., EDMI F T Date of Admission 02 / 23 / 2012 01 / 08 / 2015 04 / 28 / 2017 07 / 29 / 2013 08 / 05 / 2016 02 / 24 / 2017 In Good Standing ? YES YES YES YES YES YES

Certificate of Good Standing

AO 136 (Rev. 10/13) Certificate of Good Standing UNITED STATES DISTRICT COURT for the Northern District of New York CERTIFICATE OF GOOD STANDING I, Lawrence K. Baerman, Clerk of this Court, certify that EDWARD A. WICKLUND, Bar # 518285, was duly admitted to practice in this Court on July 29, 2013, and is in good standing as a member of the Bar of this Court. Dated at Syracuse, New York on January 10, 2018 (Location) (Date) Lawrence K. Baerman CLERK DEPUTY CLERK

ORDER DIRECTING SERVICE AND RESPONSE; granting {{3}} Motion for Leave to Proceed in forma pauperis. service to be completed within 90 days. Clerk to issue summons and sent to counsel. Answer due within 60 days. Signed by Judge Timothy M. Burgess on 1/23/18.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA MARCUS LOYD KING, Plaintiff, v. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. Case No. 3:18-cv-00007-TMB ORDER DIRECTING SERVICE AND RESPONSE Marcus Loyd King, through counsel, has filed a Social Security Complaint seeking judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g), and an Application to Waive the Filing Fee under 28 U.S.C. § 1915, showing that he is currently unable to pay the filing fee in this case. 1 Therefore, IT IS HEREBY ORDERED: 1. Mr. King's Application to Waive the Filing Fee, at Docket 3, is GRANTED. 2. Counsel for plaintiff shall insure that Service of Process is completed within 90 days of the date the Complaint was filed. 2 3. The Clerk of Court shall issue summonses for the Defendant, and send the summonses to counsel for the plaintiff, with this Order. 1 Dockets 1, 3. 2 See Fed.R.Civ.P. 4(m). 4. Counsel for the plaintiff, shall serve a copy of the Complaint, Summons and this Order, in compliance with 4(i) of the Federal Rules of Civil Procedure, on the Regional Chief Counsel, Office of the General Counsel, Region X, 701 Fifth Avenue, Suite 2900 M/S 901, Seattle Washington 98104-7075; the United States Attorney for the District of Alaska, 222 West 7th Ave., Mail Box 9, Anchorage, Alaska 99513; and the Attorney General of the United States, Main Justice Building, 10th & Constitution Ave. NW, Washington, D.C. 20530. 5. Defendant, through the United States Attorney for the District of Alaska, shall have sixty (60) days after receipt of the Complaint, Summons and this Order, to file an Answer or otherwise respond. 3. DATED at Anchorage, Alaska this 23rd day of January, 2018. /s/ Timothy M. Burgess TIMOTHY M. BURGESS UNITED STATES DISTRICT JUDGE 3 See Fed.R.Civ.P. 12(a)(3). Order Directing Service and Response Page 2 of 2

NOTICE of Appearance by Richard L. Pomeroy on behalf of Nancy A. Berryhill

BRYAN SCHRODER United States Attorney RICHARD L. POMEROY Assistant U.S. Attorney 222 West Seventh Avenue, #9 Anchorage, Alaska 99513-7567 Phone: (907) 271-5071 Fax: (907) 271-2344 E-mail: Richard.Pomeroy@usdoj.gov Attorney for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA) MARCUS LLOYD KING) Case No. 3:18-cv-00007-TMB) Plaintiff,)) v.) ENTRY OF APPEARANCE) NANCY A. BERRYHILL, Acting) Commissioner of Social Security,))) Defendant.)) Richard L. Pomeroy, Assistant U.S. Attorney, hereby enters his appearance as an attorney of record for Nancy A. Berryhill, Acting Commissioner of Social Security, in the above-entitled matter and requests that copies of all pleadings filed be directed to him. RESPECTFULLY SUBMITTED, on March 6, 2018. BRYAN SCHRODER United States Attorney s/Richard L. Pomeroy Assistant U.S. Attorney Attorney for the Defendant CERTIFICATE OF SERVICE I hereby certify that on March 6, 2018, a copy of the foregoing was served electronically to: Edward A. Wicklund, Esq. s/Richard L. Pomeroy Marcus Lloyd King v. Berryhill 2 Case No. 3:18-cv-000007-TMB

ANSWER to {{1}} Complaint by Nancy A. Berryhill.

1 BRYAN SCHRODER 2 United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 RYAN LU Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone: (206) 615-2034 Fax: (206) 615-2531 11 ryan.lu@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 MARCUS LOYD KING, Case No. 3:18-cv-00007-TMB 16 Plaintiff, 17 vs. DEFENDANT'S ANSWER 18 NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. 21 Defendant, in answer to Plaintiff's complaint, admits, denies and alleges as follows: 22 1. Defendant admits the allegations contained in Paragraph 1 that this court has jurisdiction 23 pursuant to 42 U.S.C. § 405(g). 24 Page 1 DEFENDANT'S ANSWER- [3:18-cv-00007-TMB] 25 26 1 2. Defendant admits the allegations contained Paragraphs 2 and 3. 2 3. Defendant lacks sufficient knowledge sufficient to form a belief about the allegations in 3 Paragraph 4, except that Plaintiff's social security number is a matter of record with the 4 Defendant. 5 4. Defendant admits the allegations contained in Paragraph 5. 6 5. Defendant denies the allegations contained in Paragraphs 6 and 7. 7 6. The remainder of the Complaint is a prayer for relief, including a request for attorney's 8 fees. Defendant denies that Plaintiff is entitled to judgment or any requested relief. 9 7. Defendant denies all allegations of the complaint not specifically admitted or clarified. 10 8. In accordance with 42 U.S.C. § 405(g), Defendant files as part of the answer a certified 11 copy of the transcript of the record including the evidence upon which Defendant based the 12 challenged decision. 13 WHEREFORE, Defendant prays for judgment dismissing the complaint, with costs, and 14 for judgment in accordance with 42 U.S.C. § 405(g), affirming Defendant's decision. 15 16 17 DATED this 4th day of May 2018. 18 Respectfully submitted, 19 Bryan Schroder 20 United States Attorney 21 RICHARD L. POMEROY Assistant United States Attorney 22 MATHEW W. PILE 23 Acting Regional Chief Counsel, Seattle, Region X 24 Page 2 DEFENDANT'S ANSWER- [3:18-cv-00007-TMB] 25 26 1 s/Ryan Lu 2 RYAN LU Special Assistant United States Attorney 3 Office of the General Counsel Social Security Administration 4 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 5 Telephone: (206) 615-2034 Fax: (206) 615-2531 6 ryan.lu@ssa.gov 7 8 CERTIFICATE OF SERVICE 9 I hereby certify that the foregoing Defendant's Answer was filed with the Clerk of the 10 Court on May 4, 2018, using the CM/ECF system, which will send notification of such filing to 11 the following: Edward A. Wicklund. 12 13 s/Timothy Shaw TIMOTHY SHAW 14 Paralegal Specialist Office of the General Counsel 15 16 17 18 19 20 21 22 23 24 Page 3 DEFENDANT'S ANSWER- [3:18-cv-00007-TMB] 25 26

Notice of Lodging Administrative Record

1 BRYAN SCHRODER 2 United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 RYAN LU Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone: (206) 615-2034 Fax: (206) 615-2531 11 ryan.lu@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 MARCUS LOYD KING, Case No. 3:18-cv-00007-TMB 16 Plaintiff, 17 vs. NOTICE OF LODGING OF 18 ADMINISTRATIVE RECORD NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, by and through 21 counsel, submits conventionally the following administrative record in the above-entitled and 22 numbered cause of action. 23 24 Page 1 NOTICE OF LODGING OF ADMINISTRATIVE RECORD - [3:18-cv-00007-TMB] 25 26 1 DATED this 4th day of May 2018. 2 Respectfully submitted, 3 Bryan Schroder 4 United States Attorney 5 RICHARD L. POMEROY Assistant United States Attorney 6 MATHEW W. PILE 7 Acting Regional Chief Counsel, Seattle, Region X 8 s/Ryan Lu RYAN LU 9 Special Assistant United States Attorney Office of the General Counsel 10 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 11 Seattle, WA 98104-7075 Telephone: (206) 615-2034 12 Fax: (206) 615-2531 ryan.lu@ssa.gov 13 14 15 CERTIFICATE OF SERVICE 16 I hereby certify that the foregoing Notice of Lodging of Administrative Record was filed 17 with the Clerk of the Court on May 4, 2018, using the CM/ECF system, which will send 18 notification of such filing to the following: Edward A. Wicklund. 19 s/Timothy Shaw 20 TIMOTHY SHAW Paralegal Specialist 21 Office of the General Counsel 22 23 24 Page 2 NOTICE OF LODGING OF ADMINISTRATIVE RECORD - [3:18-cv-00007-TMB] 25 26

001 Certification Page

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA MARCUS LOYD KING Plaintiff ب ب ب ب ب ب ب ب ب ب VS. CIVIL ACTION NO. 3: 18 - CV - 00007 NANCY A. BERRYHILL DEPUTY COMMISSIONER FOR OPERATIONS Performing the duties and functions not reserved to the Commissioner of Social Security, Defendant CERTIFICATION The undersigned, as Chief, Court Case Preparation and Review Branch 1, Office of Appellate Operations, Social Security Administration, hereby certifies that the documents annexed hereto constitute a full and accurate transcript of the entire record of proceedings relating to this case. V isi Yi14 NANCY CHUNG Date: April 10, 2018 * * * Certified Administrative Records (CAR) are not compatible with Optical Character Recognition (OCR), therefore the Agency cannot provide an OCR searchable CAR. Case 3: 18 - cv - 00007 - TMB Documsram 3 - 1 Filed 05 / 04 / 18 Page 1 of 1

002 Court Transcript Index

Court Transcript Index Civil Action Number: 3:18-CV-00007 Claimant: Marcus Loyd King Account Number: 574-72-3856 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 11/08/2017 1-6 6 AC Correspondence (ACCORR), dated 09/13/2017 7-11 5 ALJ Hearing Decision (ALJDEC), dated 08/07/2017 12-31 20 Transcript of Oral Hearing (TRANHR), dated 05/23/2017 32-90 59 Exhibits Exhibit No. of No. Description Page No. Pages 1A Disability Determination Transmittal - Title 2 Initial, dated 91 1 07/15/2016 2A Disability Determination Explanation - Title 2 Initial - RFC by 92-102 11 Daniel Arcega, MD, dated 07/15/2016 1B T2 Notice of Disapproved Claim, dated 07/15/2016 103-107 5 2B Appointment of Representative - Jason K. Baril, Attorney, 108 1 dated 08/24/2016 3B Request for Hearing by ALJ, dated 08/26/2016 109-110 2 4B Request for Hearing Acknowledgement Letter, dated 111-124 14 11/03/2016 5B Objection to Video Hearing - Jason K. Baril, Attorney, dated 125 1 11/07/2016 6B Critical/Dire Need Request - Jason K. Baril, Attorney, dated 126-127 2 12/20/2016 7B Hearing Notice, dated 02/10/2017 128-155 28 8B Acknowledge Notice of Hearing, dated 02/15/2017 156 1 9B Hearing Notice, dated 04/19/2017 157-189 33 10B Acknowledge Notice of Hearing, dated 04/19/2017 190 1 11B Outgoing ODAR Correspondence, dated 05/03/2017 191-193 3 12B Notice Of Hearing Reminder, dated 05/09/2017 194-199 6 13B Representative Fee Agreement, dated 04/03/2017 200 1 14B Appointment of Representative, dated 04/03/2017 201 1 15B Request for Review of Hearing Decision/Order, dated 202-203 2 08/14/2017 1D Application for Disability Insurance Benefits - AOD February 204-210 7 16, 2016, dated 06/16/2016 2D Amended Alleged Onset Date - July 9, 2015, dated 211-212 2 06/16/2016 3D Certified Earnings Records, dated 12/29/2016 213-214 2 4D Detailed Earnings Query, dated 12/29/2016 215-217 3 5D Summary Earnings Query, dated 12/29/2016 218 1 6D New Hire, Quarter Wage, Unemployment Query (NDNH), 219-220 2 dated 12/29/2016 DATE: April 10, 2018 The documents and exhibits contained in this administrative record are the best copies obtainable. Court Transcript Index Civil Action Number: 3:18-CV-00007 Claimant: Marcus Loyd King Account Number: 574-72-3856 Exhibits Exhibit No. of No. Description Page No. Pages 7D Congressional Inquiry, dated 01/20/2017 221-228 8 8D Congressional Inquiry, dated 01/24/2017 229 1 9D Congressional Interim Response, dated 06/06/2017 230 1 1E Work Activity Report EE, dated 06/16/2016, from Claimant 231-240 10 2E SSA-823 Report of SGA Determination, dated 06/16/2016 241-243 3 3E Disability Report - Adult, dated 06/16/2016, from Claimant 244-253 10 4E Disability Report - Field Office, dated 06/16/2016 254-256 3 5E Work History Report - 3369 EDCS, dated 06/16/2016, from 257-264 8 Claimant 6E Function Report - Adult, dated 06/24/2016, from Norma Sue 265-273 9 King, Mother with the Claimant 7E 3rd Party Function Report - Adult, dated 06/23/2016 to 274-282 9 06/24/2016, from Norma Sue King, Mother 8E Work History Report, dated 06/24/2016, from Norma Sue 283-287 5 King, Mother with the Claimant 9E Disability Report - Appeals, dated 10/17/2016, from Jason K. 288-301 14 Baril, Attorney 10E Disability Report - Field Office, dated 10/17/2016 302-303 2 11E Report of Contact - Third Party Request to Expedite, dated 304 1 12/13/2016, from David (last name not provided) 12E List of Proposed Exhibits, Questionnaires, SSA-827 to Jason 305-313 9 K. Baril, Attorney, dated 12/29/2016, from ODAR 13E Medications, dated 04/07/2017 314 1 14E Letter of Support, dated 04/14/2017, from Robert Dundas, 315-316 2 Superintendent Anchorage Water & Wastewate 15E Letter of Support, dated 04/19/2017, from David J. King, 317-318 2 Father 16E Resume of Vocational Expert, dated 04/20/2017, from 319-320 2 William Weiss MA 17E Representative Brief, dated 05/10/2017 321-323 3 18E Representative Brief, dated 10/06/2017, from Olinsky 324-328 5 1F Inpatient Records / Physical Therapy / Neurology / Speech 329-423 95 Therapy / Occupational Therapy / Nephrology, dated 07/15/2015 to 07/24/2015, from Alaska Regional Hospital (1 of 5, pages 92-181) 2F Inpatient / Speech Therapy / Occupational Therapy / 424-505 82 Nephrology / Discharge, dated 07/21/2015 to 10/12/2015, from Alaska Regional Hospital (2 of 5, pages 181-261) 3F ER Visit (bookmarked) / Inpatient / Neurology Consult / 506-586 81 Discharge / Speech Therapy, dated 10/14/2015 to 02/22/2016, from Alaska Regional Hospital (3 of 5, pages 261-333) DATE: April 10, 2018 The documents and exhibits contained in this administrative record are the best copies obtainable. Court Transcript Index Civil Action Number: 3:18-CV-00007 Claimant: Marcus Loyd King Account Number: 574-72-3856 Exhibits Exhibit No. of No. Description Page No. Pages 4F Office Visits - Headache, Vision, CVA, Toenail, dated 587-603 17 08/26/2015 to 02/24/2016, from Scott Deberard, DO - Hillside Family Medicine, LLC 5F Office Visits / Nephrology Progress Notes, dated 07/11/2015 604-667 64 to 03/09/2016, from Stefano Emili, MD - Aurora Kidney, LLC 6F Cardiac Evaluation / ECG / Lipid Clinic Visits / Dup Hospital 668-743 76 Records / Dup Office Visits, dated 07/28/2015 to 03/09/2016, from Alaska Heart and Vascular Institute 7F ER Visit (bookmarked) / Inpatient / Neurology / Speech 744-836 93 Therapy / Occupational Therapy / Physical Therapy / Nephrology, dated 07/09/2015 to 06/03/2016, from Alaska Regional Hospital (4 of 5, pages 1-92) 8F Inpatient / Speech Therapy / Critical Care Notes 837-914 78 (bookmarked), dated 07/09/2015 to 06/20/2016, from Alaska Regional Hospital (5 of 5, pages 333-409) 9F Statement / Optometry Visit Notes, dated 10/29/2015 to 915-935 21 06/28/2016, from Laura Kompkoff, OD - Katmai Eye and Vision Center 10F Progress Notes, dated 07/25/2016 to 12/12/2016, from 936-951 16 Stefano Emili, MD - Aurora Kidney, LLC 11F Office Treatment Records, dated 07/16/2016 to 12/23/2016, 952-972 21 from Hillside Family Medicine 12F Office Treatment Records, dated 09/17/2014 to 08/30/2016, 973-1055 83 from Diabetes and Lipid Clinic of Alaska 13F Office Treatment Records, dated 06/16/2016 to 11/01/2016, 1056-1071 16 from Katmai Eye and Vision Center 14F Treating Source Statement, dated 12/20/2016, from Katmai 1072 1 Eye and Vision Center 15F Office Treatment Records, dated 02/08/2017, from Diabetes 1073-1077 5 and Lipid Clinic of Alaska 16F Office Treatment Records, dated 02/11/2017 to 03/22/2017, 1078-1084 7 from Hillside Family & Occupational Medicine 17F Medical Expert Resume, dated 04/20/2017, from Jack 1085-1087 3 LeBeau MD 18F Medical Expert Resume, dated 04/20/2017, from Colette 1088-1090 3 Valette, Ph.D. 19F Treating Source Statement, dated 04/20/2017, from Bruce N. 1091-1092 2 Smith, Ph.D. 20F Medical Source Statement -Physical, dated 09/30/2016, from 1093-1094 2 Scott DeBerard, DO 21F Medical Source Statement -Mental, dated 10/03/2016, from 1095-1097 3 Bruce N. Smith, PhD 22F Medical Source Statement -Mental, dated 10/03/2016, from 1098-1100 3 Anne VorHoef, MA, CCC-L-SLP DATE: April 10, 2018 The documents and exhibits contained in this administrative record are the best copies obtainable. Court Transcript Index Civil Action Number: 3:18-CV-00007 Claimant: Marcus Loyd King Account Number: 574-72-3856 DATE: April 10, 2018 The documents and exhibits contained in this administrative record are the best copies obtainable.

004 Payment Documents and Decisions

Payment Documents and Decisions Civil Action Number: 3: 18 - CV - 00007 Claimant: Marcus Loyd King Account Number: 574 - 72 - 3856 Exhibits Exhibit No. Description Page No. No. of Pages 1A 91 в Disability Determination Transmittal - Title 2 Initial, dated 07 / 15 / 2016 Disability Determination Explanation - Title 2 Initial - RFC by Daniel Arcega, MD, dated 07 / 15 / 2016 2A 92 - 102 11 DATE: April 10, 2018 The documents and exhibits contained in this administrative record are the best copies obtainable. 3 - - EXHIBIT NO. 1A SOCIAL SECURITY ADMINISTRATION PAGE: 1 OF 1 DISABILITY DETERMINATION AND TRANSMITTAL 1. DESTINATION 2. DDS CODE 3. FILING DATE 4. SSN I BIC (if CDB or DWB CLAIM) DDS ODO DRS DQB INTPSC S02 5 / 13 / 16 574 - 72 - 3856 * III 5. NAME AND ADDRESS OF CLAIMANT (include ZIP Code) 6. WE'S NAME (if CDB or DWB CLAIM) MARCUSL KING 3500 STARGATE CIR 7. TYPE CLAIM (Title II) ANCHKORAGE, AK 99517 DWB CDB - R P - D - DIB FZ CDB - D RD - R RD - D RD P - R МQFE ŽŠIO I DO Ë Ë U DOME LAIDOS EDUAR D BD S D « o xD 10. PRIOR ACTION DO - BO CODE 14. DATE 11A. 11B. 9. DATE OF BIRTH 11. REMARKS 3 / 23 / 1972 PDD PTD 12. DISTRICT - BRANCH OFFICE ADDRESS (include Zip Code) SOCIAL SECURITY 222 W 8TH AVE MS # 66 997 6 / 17 / 16 ANCHORAGE, AK 99513 Ref Agy 13. DO - BO REPRESENTATIVE Presumptive W JACKINSKY 866 - 772 - 3081 Impairment DETERMINATION PURSUANT TO THE SOCIAL SECURITY ACT, AS AMENDED 16A. PRIMARY DIAGNOSIS BODY SYS. CODE NO. 16B. SECONDARY DIAGNOSIS | CODE NO. 11 4380 4010 Disability Began Late Effects of Cerebrova Essential Hypertension Disability Ceased scular Disease ' n) Disability Impairment Disability 15. CLAIMANT DISABLED A. U B. B 17. DIARY TYPE MO / YR. REASON 18. CASE OF BLINDNESS AS DEFINED IN SEC. 1614 (a) (2) (216) (i) 19. CLAIMANT NOT DISABLED Not Disab. for Cash Bene. Disab. for Cash Benefit Purp. Beg. Through Date of Current Determination A. c0 dans la B. Before Age 22 (CDB Only) Through Through Purp. CL 20. VOCATIONAL BACKGROUND OCC YRS. SC IN SC OUT Prev Ref | pins te cun Benit Tere Datentrion Though O VAS 14RS 24 PROMIS 46 CD | D > . OD: ED YRS. 14 21. VR ACTION 22. REG - BASIS CODE 23. MED LIST NO. 24. MOB CODE Initial Recon Recon DHU ALJ Hearing Appeals CouncilU.S. District Court 25. REVISEN DET J1: D B. E. F. 26. LIST NO. LU A. 984 D. 360 FL 27. RATIONALE See Attached SSA - 4268 - U4 / C4 Check If Vocational Rule Met. Cite Rule 28. Period of Disability B. O Disability Period Disability Period C. Estab Beg AND D. AND D. Continues Continues E. Term Term 29. LTR / PAR NO. 31. DATE 32. PHYSICIAN OR MEDICAL SPEC. SIGNATURE 33. DATE 30. DISABILITY EXAMINER - DDS Espen Pyrtek 7 / 15 / 16 32 A. PHYSICIAN OR MEDICAL SPEC. NAME (Stamp, Print, or Type) 32B. SPEC. CODE 34. REMARKS CER: N EOR: Y DAA: SNO: NO Disability Redesign Prototype / SDM Case MULTIPLE IMPAIRMENTS CONSIDERED 34A. COMBINED MULTIPLE NONSEVERE - SEVERE 34B. COMBINED MULTIPLE NONSEVERE - NONSEVERE 35. BASIS CODE 37. SSA REPRESENTATIVE 38. DATE 36. REV. DET. CODES SSA CODE 91 CASE CONTROL Form SSA - 831 - C3 (5 / 80ase 3: 18 - cv - 00007 - TMB Document 13 - 4 Previous editions may be used Filed 05 / 0411 InpPage 2ECo1013 D Case Number 96938 Disability Determination Explanation EXHIBIT NO. 2A PAGE: 1 OF 11 This Disability Determination Explanation is for the DIB claim at the Initial level. CLAIMANT INFORMATION CLAIMANT INFORMATION Name: Marcus Loyd King SSN: 574 - 72 - 3856 Phone Number: 907 - 783 - 0072 Secondary Phone Number Address: Mailing Residence 3500 STARGATE CIR | 3500 STARGATE CIR ANCHKORAGE, AK 99517 | ANCHKORAGE, AK 99517 Claimant Gender: M Self Reported Height: 72 inches Self Reported Weight: 290. 0 lbs BM: 39. 3 Special Indications: None. RELEVANT DATES Below table represents the Relevant Dates Age at DLI Blind DLI Date of Birth Current Age AOD Age at A OD DFI DLI 44 year s 3 43 years 3 07 / 09 / 2015 months 07 / 01 / 2010 12 / 31 / 2020 (Younger (Younger Persori) person) Does the individual have an attorney / appointed representative ? No 03 / 23 / 1972 Inonths 2 3 1 9 - - ALLEGATIONS OF IMPAIRMENTS The individual filed for Initial claim for disability on 05 / 13 / 2016 due to the following illnesses, injuries or conditions: STROKE CRONIC KIDNEY DISEASE STAGE 3 CONGESTIVE HEART FAILURE DOUBLE Visa 3: 18 - CV - 00007 - TMB Document 13 - 4 Filed 05 / 04 / 18 Page 3 of 12 92 SPEECH EXHIBIT NO. 2A PAGE: 2 OF 11 The individual alleges inability to function and / or work as of 07 / 09 / 2015 TECHNICAL ISSUES Is the individual working ? NO Prior Electronic Filings There are no prior electronic filings. Alleged Onset Date: 07 / 09 / 2015 Has the individual performed work after the Alleged Onset Date (AOD) ? Yes Is there a Work Activity Report / SGA Determination in file ? Yes Will this work affect the Potential Onset Date (POD) ? NO Has any period (s) of work been determined to be an unsuccessful work attempt, or involved subsidies / special conditions, impairment - related work expenses, or other technical issue (s) ? Yes Indicate if any of the following issues are applicable: les ati Unsuccessful Work Attempts (UWA) The individual has attempted to return to work; however, this work was determined to be an unsuccessful work attempt because the individual was out of work for at least 30 consecutive days and the work activity was discontinued or reduced to a non - SGA level in 3 months or less due to the impairment or removal of special conditions essential to the performance of work. EVIDENCE OF RECORD The following initial evidence has been received Unknowri Name Source of Evidence EF Received Opinion Evidence Type 07 / 02 / 2016 NO 3369 - Work Hx 3369 - Work Hx Initial Level _ Unknown Name Source of Evidence EF Received 3. 18 - CV - 00007 07 / 02 / 2016 VIB Document 13 - 4 Filed 05 / 04 / 18 Page 4 of 13 Opinion EXHIBIT NO. 2A PAGE: 3 OF 11 3380 - Fact Rprt - Adlt 3rd Prty Evidence Type Level Initial Unknowri Name Source of Evidence EF Received Opinion Evidence Type Level 07 / 02 / 2016 No ADL'S ADL'S Initial SCOTT DEBERARD DO Source of Evidence EF Received Opinion Evidence Type Level 07 / 01 / 2016 No Evidence MER Initial SCOTT DEBERARD DO Source of Evidence EF Received Opinion Evidence Type Evidence Type Level 07 / 01 / 2016 NO MER MER Initial KATMAI EYE AND VISION CENTER Source of Evidence EF Received Opinion Evidence Type Level 06 / 29 / 2016 NO MER Initial ALASKA REGIONAL HOSPITAL 06 / 27 / 2016 06 / 27 / 2016 Source of Evidence EF Received Opinion Evidence Type Level MER MER Initial Source of Unknowri Name Evidence EF Received 06 / 21 / 2016 Opinion Evidence Type Clmt Submit Evidnce Level Cas Isifli8fcv - 00007 - TMB Document 13 - 4 Filed 05 / 04 / 18 Page 5 of 13 NO & CV - 00007 - TMB Document 13 - 4. Filed o ALASKA HEART INSTITUTE Source of Evidence EF Received 06 / 21 / 2016 EXHIBIT NO. 2A PAGE: 4 OF 11 NO Opinion Evidence Type Level MER Initial Initial SCOTT DEBERARD DO Source of Evidence EF Received Opinion Evidence Type Level 06 / 18 / 2016 No Evidence MER Initial STEFANO EMILI MD 06 / 18 / 2016 Source of Evidence EF Received Opinion Evidence Type Level NO MER Initial Unknown Name Unknowri Name Source of Evidence EF Received Opinion Evidence Type Level 06 / 17 / 2016 No Evidence 3380 - Fnct Rprt - Adlt 3rd Prty Initial Initial Unknowl Name Source of Evidence EF Received Opinion Evidence Type Level 06 / 17 / 2016 No Evidence ADL'S Initial Initial Unknowri Name Source of Evidence EF Received Opinion Evidence Type Level 06 / 16 / 2016 No Evidence 3369 - Work Hx Initial The following evidence has been requested: Source of Evidence | EF Request Date Level Unknown Namease 3: 18 - cv - 00007 - TMB Docum; 1340 filed 05 / 04 / 18 Pageti of 13 Initial ALASKA REGIONAL HOSPITAL KATMAI EYE AND VISION CENTER Initial EXHIBIT NO. 2A PAGE: 5 CF 11 EMILI, STEFANO DEBERARD, SCOTT ALASKA HEART INSTITUTE 06 / 17 / 2016 06 / 17 / 2016 06 / 17 / 2016 06 / 17 / 2016 06 / 17 / 2016 Initial Initial Initial CLAIM COMMUNICATIONS No general claim communications have been created. CONSULTATIVE EXAMINATION (S) (CE) Is a CE (S) required ? NO FINDINGS OF FACT AND ANALYSIS OF EVIDENCE Analysis 44 y / o male, Title 2, alleging stroke, CKD, CHF, vision problems and speech. POD is 7 / 9 / 15 per 823 in file. No priors. PHYSICAL: Claimant s / p CVA 7 / 9 / 15 secondary to uncontrolled htr with residual word finding and visual deficits. Has been in SLP since that time. 12 / 9 / 15 cardiology. Is going to rehab several times a week and making progress but unable to work due to word finding difficulties and vision changes. Has been able to drive. Is living with parents and two kids. Denies HF SX OI LE edema. Denies cp or pressure. No syncope. Physical exam largely within normal limits. No motor deficits, normal strength and tone. Htn well controlled, HF well compensated, renal insufficiency stable. 2 / 20 / 16 Cr 2. 39; eGFR 30 ML / min. 2 / 20 / 16 was admitted due to headache. He was noted to have normal bp on admit to ER; in fact, bp had been too low. HA resolved in the ER and he was back to baseline before any i ' x changes made. S O ſeculen ID H H 3 / 9 / 16 no recurrence of HA to any significant degree. Checks BP weekly and average 120s / 70s. Vision Still poor ' . 6 / 20 / 16 SLP notes claimant was helping a friend move a 4 - wheeler and hurt his back. Can sleep okay. Going to more baseball games and watching sports on tv but not getting to projects at home. 6 / 28 / 16 follow up hypermetropia and astigmatism. Using left eye more in the distance. VA 20 / 15 b / 1. MENTAL: Claimant alleging cognitive problems on ADL is noted, however they do riot allege any cogniitive impairments to PCP and records in file do not suggest any mental health limitations (cognitive / anxiety / depressioni), NMDI. 416 - MEDICAL EVALUATION No 416 - Medical Evaluation have been associated with this claim. MEDICALLY DETERMINABLE IMPAIRMENTS AND SEVERITY (MDI) 3 96 EXHIBIT NO. 2A PAGE: 6 OF 11 ADULT MEDICALLY DETERMINABLE IMPAIRMENTS (MDI) Does the individual have one or more medically determinable impairments ? Yes PRIORITY SEVERITY IMPAIRMENT 4380 - CVA, Late Effects of Cerebrovascular Disease 4010 - Essential Hypertension 5880 - Chronic Kidney Disease 4280 - CHF Primary Secondary Other Severe Severe Severe Severe Other ADULT LISTINGS CONSIDERED Subsection Listing 11. 04 Description Central Nervous System Chronic Kidney Disease with Impairment of Kidney Function 6. 05 ADULT MEDICAL DISPOSITION RFC Assessment Necessary Physical and / or Mental) ASSESSMENT OF POLICY ISSUES SYMPTOMS EVALUATION List the claimant's symptoms: Pain Weakness Understanding and memory limitations Can one or more of the individual's medically determinable impairment (s) (MDI (s)) reasonably be expected to produce the individual's pain or other symptoms ? Yes Are the individual's statements about the intensity, persistence, and functionally limiting effects of the symptoms substantiated by the objective medical evidence alone ? NO When considering the following factors, which were the most informative in assessing the consistency of the individual's statements about their symptom related limitations with all the evidence in file ? Precipitating and aggravating factors Medication Treatment Treatment other than medicationMD Doelmont 12 Other Measures to relieve symptomsB DO Viele care DOODFOTIMB Document 13 - 4 Filed 05 / 04 / 18 Page 8 of 13 97 HXUESIT NO. ZA EXHIBIT NO. 2A PAGE: 7 OF 11 Statements the claimant made to Medical sources What is your assessment of the consistency of the individual's statements regarding symptoms considering the total medical and non - medical evidence in file ? Partially Consistent Assessment of consistency regarding symptom related limitations: reported severity of clmnts symptoms, specifically their cognitive limitations stated on ADL's are not supported by objective medical evidence in file. WEIGHING OF OPINION EVIDENCE There is no indication that there is medical or other opinion evidence. RESIDUAL FUNCTIONAL CAPACITY PHYSICAL RESIDUAL FUNCTIONAL CAPACITY ASSESSMENT RFC1 Indicate whether this Physical Residual Functional Capacity (RFC) assessment is for: Current Evaluation Does the individual have exertional limitations ? Yes Rate the individual's exertional limitations: Occasionally (occasionally is cumulatively 1 / 3 or less of an 8 hour day) lift and / or carty (including upward pulling): 50 pounds Frequently (frequently is cumulatively more than 1 / 3 up to 2 / 3 of an S hour day) lift and / or carty (including upward pulling): 25 pounds Stand and / or walk (with normal breaks) for a total of: About 6 hour's in an 8 - hour workday Sit (with normal breaks) for a total of: About 6 hours in an 8 - hour workday Push and / or pull (including operation of hand and / or foot controls): Unlimited, other than showil, for lift and / or carry Does the individual have postural limitations ? Yes Rate the individual's postural limitations: Climbing Ramps / stairs: Frequently 3 98 EXHIBIT NO. 2A PAGE: 8 OF 11 Climbing Ladders / ropes / scaffolds: Never Balancing: Occasionally Stooping (i. e ., bending at the waist): Occasionally Kneeling: Occasionally Crouching (i. e ., bending at the knees): Occasionally Crawling: Occasionally Explain postural limitations and how and why the evidence supports your conclusions. Cite specific facts upon which your conclusions are based: Never for heights and ladder due to field cuts and slow reaction or visual accommodation. Does the individual have manipulative limitations ? NO Does the individual have visual limitations ? Yes Rate the individual's visual limitations: Near acuity: Unlimited Far acuity: Unlimited Depth perception: Unlimited Accommodation: Limited Both Color vision: Unlimited Field of vision: Limited Right Explain visual limitations and how and why the evidence supports your conclusions. Cite specific facts upon which your conclusions are based: R lower visual field defect. Slow or difficult accommodation, so that task requiring ability to visually accommodate with repetitive task is moderately limited. (example assembly line where in ability to locate, pick and place moving parts) . Does the individual have communicative limitations ? 3 NO EXHIBIT NO. 2A Does the individual have environmental limitations ? PAGE: 9 OF 11 No RFC - Additional Explanation POD 7 / 9 / 15 DLI 12 / 31 / 20 Stop 2 / 16 / 16 Allegations: 1. STROKE 2. CRONIC KIDNEY DISEASE STAGE 3 3. CONGESTIVE HEART FAILURE 4. DOUBLE VISION 5. SPEECH Claimant has a history of a stroke, L temporoparietal parenchymal hemorrhage with mass effect. This left little or no residuals in terms of motor deficits. He had issues with speech word finding but his last visit suggest that he has improved within reasonable functionality. Nephrology notes and cardiology indicate severely depressed EF in 2009 due to hypertension and it had improved to 40 % with treatment. It is stated on 12 / 15 (Cardiology) that his issue with work is related to word finding. AS stated later notes by other treating source PCP and nephrology that this issue is less of a problem. For his vision 616 R lower visual field impairment, difficulty with double vision. Opinion: Prior heart failure, now stable on therapy, with issues related to medication 2 / 16 low blood pressure but medicationis adjustment made. Chronic renal disease stable creatinine at 2 mg. Claimant is capable of signed RFC. The RFC is not as restricted, he has been free of heart failure, for a significant period of time. These findings complete the medical portion of the disability determination. MC / PC or SDM Signature Nathaniel Arcega MD 04 07 / 14 / 2016 ASSESSMENT OF POLICY ISSUES - CONTINUED RECONCILING OF SOURCE OPINION There is no indication that there is opinion evidence from any source. ASSESSMENT OF VOCATIONAL FACTORS ASSESSMENT OF THE INDIVIDUAL'S ABILITY TO PERFORMPAST RELEVANT WORK A finding about the capacity for PRW has not been made. However, this information is not material because all potentially applicable Medical - Vocational Guidelines would direct a finding of " not disabled " given the individual's age, education, and RFC. Therefore, the individual can adjust to other work. Past Relevant Work: Past Relevant Work is expedited. Additional Past Work Titles: Job Title: JOURNEYMAN UTILITY MAN Start Date: 2002 3 100 End Date: 02 / 16 / 2016 EXHIBIT NO. 2A PAGE: 10 OF 11 CAPTAIN / DECKHAND Job Title: Start Date: End Date: 1984 2000 APPLICATION OF MEDICAL - VOCATIONAL RULES: Other Work Past Relevant Work is expedited. Is the individual limited to unskilled work because of the impairments ? NO Based on the seven strength factors of the physical RFC (lifting / carrying, standing, walking, sitting, pushing, and pulling), the individual demonstrates the maximum sustained work capability for the following: MEDIUM The highest grade of school completed by the individual is: 14 Indicate the rule used to direct a determination or as a framework. 203. 28 - Young HS Unskilled - None Select one of the following: Rule Used as a Framework Cite three occupations in which there are a significant number of jobs that exist in the national economy OR Select the appropriate Social Security Ruling (SSR): Laundry Worker I (361. 684 - 014, 2 / M) Drier Operator (523. 685 - 062, 2 / M) Automobile Detailer (915. 687 - 034, 2 / M) DETERMINATION Based on the documented findings, select the determination: Not Disabled Is there medical evidence of DAA ? There is no evidence of any substance abuse disorder / DAA issue DIB Claim / 244321077 Indicate which of the following Acquiescence Rulings are applicable None of the ARs considered apply to this claim REGULATION BASIS CODE (RBC) 101 3 Regulation Basis Code: EXHIBIT NO. 2A PAGE: 11 OF 11 J1 - 20CFR404. 1520 (g) - DIB CLAIM PERSONALIZED DISABILITY EXPLANATION (PDE) PDE Text: Your condition results in some limitations in your ability to perform work related activities. We have determined that your condition is not severe enough to keep you from working. We considered the medical and other information and work experience in determining how your condition affects your ability to work. We do not have sufficient vocational information to determine whether you can perform any of your past relevant work. However, based on the evidence in file, we have determined that you can adjust to other work. SIGNATURES ADULT MC / PC or SDM Signature Nathaniel Arcega MD 04 07 / 14 / 2016 Disability Adjudicator / Examiner Signature: Espen Pyrtek 07 / 15 / 2016 eCAT version: 10. 0. 51 102 3

006 Non Disability Related Development

Non Disability Related Development Civil Action Number: 3: 18 - CV - 00007 Claimant: Marcus Loyd King Account Number: 574 - 72 - 3856 Exhibits Exhibit No. Description No. of Pages | e, Page No. 204 - 210 211 - 212 Application for Disability Insurance Benefits - AOD February 16, 2016, dated 06 / 16 / 2016 Amended Alleged Onset Date - July 9, 2015, dated 06 / 16 / 2016 Certified Earnings Records, dated 12 / 29 / 2016 Detailed Earnings Query, dated 12 / 29 / 2016 Summary Earnings Query, dated 12 / 29 / 2016 New Hire, Quarter Wage, Unemployment Query (NDNH), dated 12 / 29 / 2016 Congressional Inquiry, dated 01 / 20 / 2017 Congressional Inquiry, dated 01 / 24 / 2017 Congressional Interim Response, dated 06 / 06 / 2017 213 - 214 215 - 217 218 219 - 220 e e AOS PPONP NN 221 - 228 229 230 DATE: April 10, 2018 The documents and exhibits contained in this administrative record are the best copies obtainable. 8 EXHIBIT NO. 1D PAGE: 1 OF 7 June 16, 2016, IT: 14 PAGE 1 SG - SSA - 16 NH 574 - 72 - 3856 = = = — = = = = = = — = = = — = - - —: UNIT: WGJDIB — — — — — — - — MARCUS LOYD KING 3500 STARGATE CIR ANCHKORAGE AK 99517 APPLICATION SUMMARY FOR DISABILITY INSURANCE BENEFITS On June 16, 2016, we talked with you and completed your application for SOCIAL SECURITY BENEFITS. We stored this information electronically in our records. We are enclosing a summary of your statements. Yoni caril sat dan merosac. ALE [ f Tr NA ԲՐԾ ԲԱԼ H T K HK HR re e ummary oljrs H I APPLY FOR A PERIOD OF DISABILITY AND / OR ALL INSURANCE BENEFITS FOR WHICH I AM ELIGIBLE UNDER TITLE II AND PART A OF TITLE XVIII OF THE SOCIAL SECURITY ACT, AS PRESENTLY AMENDED. T L I. I T H MY NAME IS MARCUS LOYD KING. MY SOCIAL SECURITY NUMBER IS 574 - 72 - 3856. MY DATE OF BIRTH IS March 23, 1972. I AM A CITIZEN OF THE UNITED STATES. HH I BECAME UNABLE TO WORK BECAUSE OF MY DISABLING CONDITION ON February 16, 2016. I AM STILL DISABLED. NO PREVIOUS APPLICATION HAS BEEN FILED WITH THE SOCIAL SECURITY ADMINISTRATION BY OR FOR ME. I DO NOT WANT TO FILE FOR SSI. U HH I HAVE NOT FILED NOR DO I INTEND TO FILE FOR ANY WORKERS ' COMPENSATION, PUBLIC DISABILITY OR BLACK LUNG BENEFITS. I AM NOT ENTITLED TO NOR DO I EXPECT TO BECOME ENTITLED TO A PENSION OR ANNUITY BASED IN WHOLE OR IN PART ON WORK AFTER 1956 NOT COVERED BY SOCIAL SECURITY. THE SOCIAL SECURITY ADMINISTRATION AND THE STATE AGENCY REVIEWING MY CLAIM DO HAVE MY PERMISSION TO CONTACT MY EMPLOYER (S) . I NEVER MARRIED OR I HAD NO PREVIOUS MARRIAGES THAT LASTED 10 YEARS OR MORE OR ENDED IN DEATH. 204 8 EXHIBIT NO. 1D PAGE: 2 OF 7 June 16, 2016, IT: 14 PAGE 2 SG - SSA - 16 NH 574 - 72 - 3856 AY E I LG I I I HAVE THE FOLLOWING CHILD OR CHILDREN UNDER AGE 18; AGE 18 - 19 ATTENDING ELEMENTARY OR SECONDARY SCHOOL FULL TIME; OR AGE 18 OR OVER AND DISABLED BEFORE AGE 22 WHO MAY BE ELIGIBLE FOR SOCIAL SECURITY BENEFITS ON THIS RECORD, THIS INCLUDES CHILDREN WHO MAY OR MAY NOT BE LIVING WITH ME. JAMES KING BRYAN KING REMARKS: I HAVE REVIEWED MY EARNINGS RECORD AND IT IS CORRECT TO THE BEST OF MY KNOWLEDGE I KNOW TO REPORT ANY WORK HK工工 A H AH Z H I KNOW THAT ANYONE WHO MAKES OR CAUSES TO BE MADE A FALSE STATEMENT OR REPRESENTATION OF MATERIAL FACT IN AN APPLICATION OR FOR USE IN DETERMINING A RIGHT TO PAYMENT UNDER THE SOCIAL SECURITY ACT COMMITS A CRIME PUNISHABLE UNDER FEDERAL LAW BY FINE, IMPRISONMENT OR BOTH, I AFFIRM THAT ALL INFORMATION I HAVE GIVEN IN CONNECTION WITH THIS CLAIM IS TRUE. E R H MY TELEPHONE NUMBER IS (907) 783 - 0072. 205 8 EXHIBIT NO. 1D PAGE: 3 OF 7 June 16, 2016, IT: 14 PAGE 3 SG - SSA - 16 une 16, 20. PAGE 1 05 NH 574 – 72 - 3856 SOCIAL SECURITY ADMINISTRATION IMPORTANT INFORMATION RECEIPT FOR YOUR CLAIM FOR SOCIAL SECURITY DISABILITY INSURANCE BENEFITS MARCUS LOYD KING 3500 STARGATE CIR ANCHKORAGE AK 99517 YOUR APPLICATION FOR SOCIAL SECURITY BENEFITS HAS BEEN RECEIVED AND WILL BE PROCESSED AS QUICKLY AS POSSIBLE. Я НН YOU SHOULD HEAR FROM US WITHIN DAYS AFTER YOU HAVE GIVEN US ALL THE INFORMATION WE REQUESTED. SOME CLAIMS MAY TAKE LONGER IF ADDITIONAL INFORMATION IS NEEDED. IN THE MEANTIME, IF YOU CHANGE YOUR ADDRESS, OR IF THERE IS SOME OTHER CHANGE THAT MAY AFFECT YOUR CLAIM, YOU – OR SOMEONE FOR YOU - SHOULD REPORT THE CHANGE. We are providing the attached application for your records. ma SO ere S no reason f O (We stored your application information electronically so there is no reason for us to retain a paper copy of your application. (ur P. IMPORTANT REMINDER Penalty of Perjury K You declared under penalty of perjury that you examined all the information on this form and it is true and correct to the best of your knowledge. You were told that you could be liable under law for providing false information. i r ] or D DU. ROC ol ] were THE TELEPHONE NUMBERS TO CALL IF YOU HAVE A QUESTION OR SOMETHING TO REPORT ARE: BEFORE YOU RECEIVE A NOTICE ABOUT YOUR CLAIM: AFTER YOU RECEIVE A NOTICE ABOUT YOUR CLAIM: SOCIAL SECURITY INFORMATION IS ALSO AVAILABLE TO INTERNET USERS AT WWW. SOCIALSECURITY. GOV. What You Need To Do O Review the summary to make sure we recorded your statements correctly. If you agree with all your statements, you may keep the information for I f ur tem ou ma rma RR OD vour reco 206 8 EXHIBIT NO. 1D PAGE: 4. OF 7 June 16, 2016, IT: 14 PAGE 4 SG - SSA - 16 NH 574 - 72 - 3856 O tatements ease contact (0 If you disagree with any of your statements, please contact us within 10 days after receiving this notice to let us know. . (I r D P ALWAYS GIVE US YOUR CLAIM NUMBER WHEN WRITING OR TELEPHONING ABOUT YOUR CLAIM, IF YOU HAVE ANY QUESTIONS ABOUT YOUR CLAIM, WE WILL BE GLAD TO HELP YOU, WE ARE RETURNING ANY DOCUMENT (S) YOU MAY HAVE SUBMITTED WITH YOUR APPLICATION. HELPFUL HEALTH CARE WEBSITES Health Information tment lan on many H TheU.S. Department of Health and Human Services provides information on many health topics at www. healthfinder. gov on the Internet. You may wish to visit that site to review that information, which may be helpful to you. S P P. WW H on D Prescription Drug Assistance Programs maV ILLS H Է You may be able to get help paying for prescription drugs. To find out what programs are offered by drug companies, state and local governments, and local organizations, please visit www. healthfinder. gov / rxdrug on the Internet. re P. D H H DR 0 D t ase WWWAT nternet. 0 v CLAIMANT MARCUS L KING I W N M 7 T 8 (207 8 EXHIBIT NO. 1D PAGE: 5 OF 7 June 16, 2016, IT: 14 PAGE 5 SG - SSA - 16 NH 574 – 72 - 3856 REPORTING RESPONSIBILITIES FOR DISABILITY INSURANCE BENEFITS LT RESPO I I S 1 I T MARCUS LOYD KING 3500 STARGATE CIR ANCHKORAGE AK 99517 CHANGES TO BE REPORTED AND HOW TO REPORT FAILURE TO REPORT MAY RESULT IN OVERPAYMENTS THAT MUST BE REPAID, AND IN POSSIBLE MONETARY PENALTIES O. You change your mailing address for checks or residence. To avoid delay in receipt of checks you should ALSO file a regular change of address notice with your post office. 1 a a ddre P (D P. R 0 no W st Your citizenship or immigration status changes. O You go outside theU.S. A. for 30 consecutive days or longer. O Any beneficiary dies or becomes unable to handle benefits. O You are confined to jail, prison, penal institution or correctional facility for conviction of a crime or you are confined to a public institution by court order in connection with a crime. n R H a POR R dd O You have an unsatisfied warrant for your arrest for a crime or attempted crime that is a felony (or, in jurisdictions that do not define crimes as felonies, a crime that is punishable by death or imprisonment for a term exceeding 1 year) . (D Hd T O ve an un i warra or a or ro You have an unsatisfied warrant for a violation of probation or parole under Federal or State law. I rec Your stepchild is entitled to benefits on your record and you and the stepchild's parent divorce. Stepchild benefits are not payable beginning with the month after the month the divorce becomes final. DO P. H ., EK 1 P. D ರ C Custody Change - Report if a person for whom you are filing, or who is in your care dies, leaves your care or custody, or changes address. O Change of Marital Status - Marriage, divorce, annulment of marriage. You become entitled to a pension or annuity based on your employment after 1956 not covered by Social Security, or if such pension or annuity stops. overe a or an O You return to work (as an employee or self - employed) regardless of the amount of earnings. 208 8 EXHIBIT NO. 1D PAGE: 6 OF 7 June 16, 2016, IT: 14 PAGE 6 SG - SSA - 16 NH 574 - 72 - 3856 Your condition improves. OO If you are under age 65 and you apply for or begin to receive Workers ' Compensation or another public disability benefit (including Black Lung benefits), or the amount of your present Workers ' Compensation or public benefit changes or stops, or you receive a lump sum settlement. - HOW TO REPORT You can make your reports by telephone, mail, or in person, whichever you prefer. If you are awarded benefits, and one or more of the above change (s) occur, you should report by: O Calling us TOLL FREE at 1 - 800 - 772 - 1213; US 1 7 2 1 3; If you are deaf or hearing impaired, calling us TOLL FREE at TTY MT 1S I at TTY H H1 G N. Calling, visiting or writing your local Social Security Office at the phone number and address above. For general information about Social Security, visit our website at WWW. socialsecurity. gov se 1 e t i reme law es Y ea D 0 ean R For those under full retirement age, the law requires that a report of earnings be filed with SSA within 3 months and 15 days after the end of any taxable year in which you earn more than the annual exempt amount. You may contact SSA to file a report. Otherwise, SSA will use the earnings reported by your employer (s) and your self - employment tax return (if applicable) as the report of earnings required by law and adjust benefits under the earnings test. It is your responsibility to ensure that the information you give concerning your earnings is correct. You must furnish additional information as needed when your benefit adjustment is not correct based on the earnings on your record. H R HO. P a P. D H N KD law a D P. ea (D 5. D 5 P d P. W NOTICE ABOUT DOCUMENTS We recommend that you keep all documents you submitted to us. We are returning the documents you submitted with this claim. Collection and Use of Information From Your Application - Privacy Act Notice / Paperwork Reduction Act Notice i a d OP J. HD i N W O J. dt i FO surance The Social Security Administration is authorized to collect the information requested on this form under sections 202, 205 and 223 of the Social Security Act. The information you provide will be used by the Social Security Administration to determine if you or a dependent is eligible to insurance coverage and / or monthly benefits. You do not have to give us the requested information. However, if you do not provide the information, we will be unable to make an accurate and timely decision concerning your entitlement or a dependent's entitlement to benefit payments. H HP. P. a e i t R 3 209 8 EXHIBIT NO. 1D PAGE: 7 OF 7 June 16, 2016, IT: 14 PAGE 7 SG - SSA - 16 NH 574 – 72 - 3856 O The information you provide may be disclosed to another Federal, State or local government agency for determining eligibility for a government benefit or program, to a Congressional office requesting information on your behalf, to an independent party for the performance of research and statistical activities, or to the Department of Justice for use in representing the Federal Government. al P. 0 DP. OS P. 0 HDF 0 n 0 an 0 We may also use this information when we match records by computer. Matching programs compare our records with those of other Federal, State, or local government agencies. Many agencies may use matching programs to find or prove that a person qualifies for benefits paid by the Federal government. The law allows us to do this even if you do not agree to it. (A M. R. COVernme d. a R. P. Explanations about these and other reasons why information you provide may be used or given out are available in Social Security offices. If you want to learn more about this, contact any Social Security office. n i D D W ou Wan S P DP. .) arn mor KK d D W P P (D O W 4 U N Paperwork Reduction Act Statement - This information collection meets the requirements of 44U.S. C. 3507 as amended in section 2 of the Paperwork Reduction Act of 1995. You do not need to answer these questions unless we display a valid Office of Management and Budget control number. We estimate that it will take about 20 minutes to read the instructions, gather the facts and answer the questions. SEND OR BRING THE COMPLETED FORM TO YOUR LOCAL SOCIAL SECURITY OFFICE. The office is listed underU.S. Government agencies in your telephone directory or you may call Social Security at 1 - 800 - 772 - 1213. You may send comments on our time estimate above to: SSA, 6401 Security Blvd. Baltimore ore MD 21235 - 6401. Send only comments relating to our time estimate to this address, not the completed form. RP. B 3 O. 0 a questions. SEND OR BRING THE COMBI MOdensed P. H D (0 You m. P n D OD (D (DH d P. (n O E d a D N do P. L < Comm nts P. D our 210 8 EXHIBIT NO. 2D PAGE: 1 OF 2 June 16, 2016, 17: 48 PAGE 1 NH 574 - 72 - 3856 = = = — = = = = = = — = = = — = - - —: UNIT: WGJDIB — — — — — — - — MARCUS LOYD KING 3500 STARGATE CIR ANCHKORAGE AK 99517 AMENDMENTS TO APPLICATION NH NAME: MARCUS LOYD KING CL NAME: MARCUS LOYD KING NH SSN: 574 – 72 - 3856 CL SSN: 574 - 72 - 3856 NN MM 0 le we 0 PH 0 On June 16, 2016, we talked with you and completed your application for SOCIAL AL SECURITY BENEFITS. We stored this information electronically in our records. We are enclosing a summary of your statements. H T 1 1 - tರ KP R RH DO I HU e co What You Need To Do O Review the summary to make sure we recorded your statements correctly. If you agree with all your statements, you may keep the information for your records. O L pase conta ct us If you disagree with any of your statements, please contact us within 10 days after receiving this notice to let us know. DP. t D Q DR. PO 1 rr know. L S HO I WISH TO CHANGE THE FOLLOWING INFORMATION ON MY APPLICATION FOR TITLE II / TITLE XVIII BENEFITS / RIGHTS. T HE FORMAT HA T ET HH I Z I 工 THE NEW OR CHANGED INFORMATION IS: I BECAME UNABLE TO WORK BECAUSE OF MY DISABLING CONDITION ON July 9, 2015. REASON FOR CHANGE: 211 8 EXHIBIT NO. 2D PAGE: 2 OF 2 June 16, 2016, IT: 48 PAGE 2 NH 574 - 72 - 3856 H ΕΝΤΑΤ A TTC I KNOW THAT ANYONE WHO MAKES OR CAUSES TO BE MADE A FALSE STATEMENT OR REPRESENTATION OF MATERIAL FACT IN AN APPLICATION OR FOR USE IN DETERMINING A RIGHT TO PAYMENT UNDER THE SOCIAL SECURITY ACT COMMITS A CRIME PUNISHABLE UNDER FEDERAL LAW BY FINE, IMPRISONMENT OR BOTH, I AFFIRM THAT ALL INFORMATION I HAVE GIVEN IN CONNECTION WITH THIS CLAIM IS TRUE. MY TELEPHONE NUMBER IS (907) 783 - 0072. de 8 Filed 05 / 04 / 18 Page 10 of 28 EXHIBIT NO. 3D PAGE: 1 OF 2 NH NAME INPUT RUN DATE CONTROL MARCUS L KING 12 / 29 / 16 12 / 29 / 16 V: 07 / 15 / 14 574 - 72 - 3856 SN: 574 - 72 - 3856 PG 001 + DO: Y68 UNIT: LB DERO MOD: 04 N EVENT ICERS. EARNINGS RECORD TID CERTIFIED EARNINGS RECORD ALERTS NH HAS 19 DIS EX YOC'S FOR NONCOVERED PENSION PIA PRIOR CLAIM DATA DOES NOT EXIST ON DRAMS POSSIBLE DUPLICATES 1990 POSSIBLE INCOMPLETES 1989 1991 1997 2000 2009 2012 NH HAS 19 YOC'S FOR NONCOVERED PENSION PIA FILING DATE USED BY SYSTEM EQUALS ONSET DATE INFORMTNL DISABILITY EXCLUSION FULLY INSURED STATUS MET DISABLED NH IS FULLY INSURED RIB DISABILITY NON - EXCLUSION FULLY INSURED STATUS MET DISABILITY NON - EXCLUSION 20 / 40 INSURED TEST MET DISABILITY EXCLUSION 20 / 40 INSURED TEST MET PRIOR CLAIM STATUS - A ID INFO REQ NAME: KING REQ SEX: M REQ DATE OF BIRTH: 03 / 23 / 1972 DATES DATE OF ONSET: 07 / 09 / 2015 DIB INPUT MBR / INPUT DATA ONSET: 07 / 09 / 2015 DENIAL / DISALLOWANCE: J1 INS STAT DISABILITY: EXCL REO OC: 21 EXCL HAS: 040 NON - EXCL REQ QC: 21 NON - EXCL HAS: 040 DIS DLI: 12 / 20 OTHER: FIRST INSURED: 07 / 10 TOT Coν SSA QC 1937 THRU 1950 QC: 0 WAGE QC AFTER 1946: 106 WAGE QC AFTER 1950: 106 SE QC: NONE AG QC: NONE TOT EARN SSA TOT AFTER 1936: 830369. 67 TOT AFTER 1950: 830369. 67 COMPUTATIONAL YEARLY EARNINGS MAX AMT YR QC REGULAR U NH INDEXED RAILROAD RQSM DMW SE AG 45000 470 88 CCCC 7390. 00 17157. 49 48000 500 89 CCCC 3184. 00 7110. 80 51300 520 90 CCCC 10499. 00 22412. 08 53400 540 91 CNNN 542. 00 1115. 43 55500 570 92 CCCN 2236. 00 4376. 20 57600 590 93 CCCC 12031. 75 23347. 20 60600 620 94 CCCC 14671. 45 27725. 33 61200 630 95 CCCC 15963. 89 29005. 08 62700 640 96 CCCC 8262. 06 14311. 57 65400 670 97 CCCC 4851. 50 7940. 45 68400 700 98 CCCC ' 8550. 00 13297. 80 72600 740 99 CCCC 8435. 00 12426. 44 76200 780 00 CCNN 2284. 75 3189. 51 M < < < < ܢ L ܢ W Εσ W NMN A < H 0 o A KGG A W 00 A HS U 2 8 213 213 EXHIBIT NO. 3D PAGE: 2 OF 2 L KING NH NAME INPUT MARCUS 12 / 29 / 16 SN: 574 - 72 - 3856 PG 002 DO: Y68 UNIT: LB DERO MOD: 04 H W O D Ο O NO W 0 O V 0) 0 0 U COMPUTATIONAL YEARLY EARNINGS MAX AMT YR QC REGULAR NH INDEXED RAILROAD ROSM DMW SE AG 80400 830 01 CCCC 23065. 58 31449. 30 84900 870 02 CCCC 19240. 21 25973. 03 87000 890 03 CCCC 43228. 78 56963. 55 87900 900 04 CCCC 51010. 83 H 64232. 13 90000 920 05 CCCC 52967. 25 64341. 36 94200 970 06 CCCC 52807. 44 61328. 39 97500 1000 07 CCCC 67632. 78 75136. 12 102000 1050 08 CCCC 62443. 05 67810. 71 106800 1090 09 CCCC 25128. 03 27705. 88 1120 10 cccc 57434. 03 61863. 95 1120 11 CCCC · 59898. 82 62558. 68 110100 1130 12 CCCC 25536. 32 25862. 71 113700 1160 13 CCCC 66788. 72 66788. 72 117000 1200 14 CCCC 72661. 86 72661. 86 118500 1220 15 CCCC 51624, 57 H 51624. 57 1260 16 NNNN ' COMP DATA DI - COMP TYPE: NS 78 DIS EX AIME: $ 4279. 00 EFF DATE: 01 / 16 PIA: $ 1848. 30 PIFC: L FAM MAX: $ 2772. 40 EFF DATE: 12 / 16 PIA: $ 1853. 80 PIFC: L FAM MAX: $ 2780. 70 START BASE YEAR / START DATE: 1951 LAST BASE YEAR / CLOSE DATE: 2015 DIVIDEND: $ 873031. 37 DM: 204 DOY: 4 YOC: I / Y: ELG YR: 2015 TRIAL COMPUTATIONS: NS 78 $ 1853. 80 SP MIN. $ 498. 30 N N (0 0 0 A HN * * 0 8 QRY DATE: 12 / 29 / 16 AN: 574 - 72 - 3856 DOC: Y68 UNIT: EDEQY PG: 001 DEQR INPUT: YRS REQ: 2000 - 2016; COVERED DETAILS; NON - COVERED DETAILS; PENSION; SPECIAL WAGE PAYMENT; EMPLOYER ADDRESS MEF: NA: M L KING DB: 03 / 1972 SX: M AK: FERGUETT NO: EXHIBIT NO. 4D PAGE: 1 OF 3 DETAIL COVERED FICA EARNINGS AND EMPLOYER NAME AND ADDRESS FOR YEARS REQUESTED EIN: 020336591 JEWETT CONSTRUCTION CO INC PO BOX 405 RAYMOND NH 03077 - 0405 RPYR REO LOAC NAME EARNINGS TOTAL COMP CONTROL NUMBER PRS 0000 AA ML KING 2284. 75 2284. 75 0102 - 67 - 20140 01601 V WAGE TOTAL 2284. 75 OASDI EMPLOYER TOTAL 2284, 75 00 OASDI YEARLY TOTAL 2284. 75 N N N N 0 _ _ N N 0 _ N N 0 TOTAL COMP CONTROL NUMBER PRS 23065. 58 1059 - 71 - 25934 00702 V N EIN: 020336591 JEWETT CONSTRUCTION CO INC RPYR REO LOAC NAME EARNINGS 0001 AA ML KING 23065. 58 WAGE TOTAL 23065. 58 OASDI EMPLOYER TOTAL 23065. 58 01 OASDI YEARLY TOTAL 23065. 58 0 N 0 N N N N N EIN: 020336591 JEWETT CONSTRUCTION CO INC RPYR REO LOAC NAME EARNINGS TOTAL COMP CONTROL NUMBER PRS 0002 AA ML KING 2100. 60 2100. 60 2045 - 69 - 60313 01003 V WAGE TOTAL 2100. 60 OASDI EMPLOYER TOTAL 2100. 60 EIN: 920059987 MUNICIPALITY OF ANCHORAGE PAYROLL PO BOX 196650 ANCHORAGE AK 99519 - 6650 0002 AA M L KING 17139. 61 17139. 61 2083 - 87 - 53586 01003 V WAGE TOTAL 17139. 61 OASDI EMPLOYER TOTAL 17139. 61 02 OASDI YEARLY TOTAL 19240. 21 N N NO A N 0 0 EIN: 92005 9987 MUNICIPALITY OF ANCHORAGE PAYROLL RPYR REO LOAC NAME EARNINGS TOTAL COMP CONTROL NUMBER PRS 0003 AA ML KING 43228. 78 40259. 75 3075 - 85 - 83965 00904 V WAGE TOTAL 43228. 78 OASDI EMPLOYER TOTAL 43228. 78 03 OASDI YEARLY TOTAL 43228. 78 N 0 N 0 N EIN: 920059987 MUNICIPALITY OF ANCHORAGE PAYROLL RPYR REO LOAC NAME EARNINGS TOTAL COMP CONTROL NUMBER PRS 0004 AA ML KING 51010, 83 47366. 84 4077 - 86 - 86816 01005 V WAGE TOTAL 51010. 83 OASDI EMPLOYER TOTAL 51010. 83 04 OASDI YEARLY TOTAL 51010. 83 Слл Слу ل أ EIN: 920059987 MUNICIPALITY OF ANCHORAGE PAYROLL RPYR REO LOAC NAME EARNINGS TOTAL COMP CONTROL NUMBER PR s 0005 AA M L KING 52967. 25 49126. 96 5104 - 90 - 59384 01406 V WAGE TOTAL 52967. 25 OASDI EMPLOYER TOTAL 52967. 25 05 OASDI YEARLY TOTAL 52967. 25 NA Слл Слл 215 8 EIN: 920059987 MUNICIPALITY OF ANCHORAGE PAYROLL TOTAL COMP CONTROL NUMBER PRS 49011. 93 6087 - 90 - 67408 01107 V RPYR REO LOAC NAME 0006 AA ML KING WAGE TOTAL OASDI EMPLOYER TOTAL 06 OASDI YEARLY TOTAL HHH EARNINGS 52807. 44 52807. 44 52807. 44 52807, 44 EXHIBIT NO. 4D PAGE: 2 OF 3 N N 0 EIN: 920059987 MUNICIPALITY OF ANCHORAGE PAYROLL RPYR REO LOAC NAME EARNINGS TOTAL COMP CONTROL NUMBER PRS 0007 AA ML KING 67632. 78 62883. 33 8094 - AT - 13270 01108 V WAGE TOTAL 67632. 78 OASDI EMPLOYER TOTAL 67632. 78 07 OASDI YEARLY TOTAL 67632. 78 N N 0 N N 0 N EIN: 920059987 MUNICIPALITY OF ANCHORAGE PAYROLL RPYR REO LOAC NAME EARNINGS TOTAL COMP CONTROL NUMBER PR S 0008 AA ML KING 62443. 05 58031. 21 9085 - AU - 61648 00909 V WAGE TOTAL 62443. 05 OASDI EMPLOYER TOTAL 62443. 05 08 OASDI YEARLY TOTAL 62443. 05 0 N 0 N N N EIN: 92005 9987 MUNICIPALITY OF ANCHORAGE PAYROLL RPYR REO LOAC NAME EARNINGS TOTAL COMP CONTROL NUMBER PRS 0009 AA ML KING 25128. 03 23346. 58 0089 - AY - 38091 01110 V WAGE TOTAL 25128. 03 OASDI EMPLOYER TOTAL 25128. 03 09 OASDI YEARLY TOTAL 25128. 03 N HHH N N EIN: 920059987 MUNICIPALITY OF ANCHORAGE PAYROLL RPYR REO LOAC NAME EARNINGS TOTAL COMP CONTROL NUMBER PRS 0010 AA ML KING 57434. 03 53471. 97 1082 - AG - 01190 01011 V WAGE TOTAL 57434. 03 OASDI EMPLOYER TOTAL 57434. 03 10 OASDI YEARLY TOTAL 57434. 03 ا ل HHH ل 0 N EIN: 920059987 MUNICIPALITY OF ANCHORAGE PAYROLL RPYR REO LOAC NAME EARNINGS TOTAL COMP CONTROL NUMBER PRS 0011 AA ML KING 5 98 98. 82 55612. 02 2080 - AT - 45022 01012 V WAGE TOTAL 59898. 82 OASDI EMPLOYER TOTAL 59898. 82 11 OASDI YEARLY TOTAL 59898. 82 Слцлцл 0 N E N EIN: 920059987 MUNICIPALITY OF ANCHORAGE PAYROLL RPYR REO LOAC NAME EARNINGS TOTAL COMP CONTROL NUMBER PRS 0012 AA ML KING 25536. 32 23646. 03 3086 - BB - 08279 01113 V WAGE TOTAL 25536. 32 OASDI EMPLOYER TOTAL 25536. 32 12 OASDI YEARLY TOTAL 25536. 32 N HHH ل N لي N EN EIN: 92005 9 987 MUNICIPALITY OF ANCHORAGE PAYROLL RPYR REO LOAC NAME EARNINGS TOTAL COMP CONTROL NUMBER PRS 0013 AA M L KING 66788. 72 61916. 01 4083 - BX - 60712 00714 V WAGE TOTAL 66788. 72 OASDI EMPLOYER TOTAL 66788. 72 13 OASDI YEARLY TOTAL 66788. 72 GEBRUIKT SL adesea cu carnem poena meni < N < N < N 8 216 EIN: 920059987 Moase BA18TEV 00007HTIMB Document 13 - 6 Filed 05 / 04 / 18 Page 14 of 28 RPYR REO LOAC NAME EARNINGS TOTAL COMP CONTROL NUMBER PR S 0014 AA ML KING 72661. 86 67748. 89 5082 - AN - 79829 01115 V N N WAGE TOTAL OASDI EMPLOYER TOTAL 14 OASDI YEARLY TOTAL 72661. 86 72661. 86 72661. 86 N EXHIBIT NO. 4D PAGE: 3 OF 3 00 2 N 1 Lu L ] NN N VW ل O 0 AA3 7 1 ਆ N N EIN: 043376070 UNUM LIFE INSURANCE COMPANY OF AMERICA THIRD PARTY PLANS % AMANDA C RAINS OPTAX 68625 1 FOUNTAIN SQUARE CHATTANOOGA TN 37402 - 1307 RPYR REO LOAC NAME EARNINGS TOTAL COMP CONTROL NUMBER PRS 0015 AA3 M KING 12428. 57 60 91 - AB - 05329 01216 V M KING - 12428. 57 6091 - AB - 05329 03716 2 EA M KING. 00. 00 6266 - ZZ - 01357 03716 V WAGE TOTAL OASDI EMPLOYER TOTAL. 00 EIN: 92005 9 987 MUNICIPALITY OF ANCHORAGE PAYROLL 0015 AA ML KING 51624. 57 48112. 66 6074 - AR - 46097 01016 V WAGE TOTAL 51624. 57 OASDI EMPLOYER TOTAL 51624. 57 15 OASDI YEARLY TOTAL 51624. 57 N ա LI Է л H. 00 16 NONE DETAIL NON - COVERED EARNINGS AND W - 2 PENSION DATA AND EMPLOYER NAME AND ADDRESS FOR YEARS REQUESTED NO NON - COVERED EARNINGS AND W - 2 PENSION DATA POSTED FOR YEARS REQUESTED REMARKS CLAIMS ACTIVITY - - SEE MBR 217 8 SEQY DTE: 12 / 29 / 16 AN: 574 - 72 - 3856 MEF QN: 574 - 72 - 3856 NA: M L KING DOC: Y68 UNIT: ESEQY DB: 03 / 1972 SX: M AK: EXHIBIT NO. 5D PAGE: 1 OF 1 TITITITE SUMMARY FICA EARNINGS FOR YEARS REQUESTED YEAR EARNINGS YEAR EARNINGS YEAR EARNINGS YEAR EARNINGS 2000 2284. 75 2005 52967. 25 2009 25128. 03 2013 66788. 72 2001 23065. 58 2006 52807. 44 2010 57434. 03 2014 72661. 86 2002 19240. 21 2007 67632. 78 2011 59898. 82 2015 51624. 57 2003 43228. 78 2008 62443. 05 2012 25536. 32 2016. 00 2004 51010. 83 SUMMARY MQGE EARNINGS FOR YEARS REQUESTED NO MOGE EARNINGS FOR YEARS REQUESTED REMARKS CLAIMS ACTIVITY - - SEE MBR 218 8 UNEMPLOYMENT INSURANCE Date: 12 / 29 / 2016 EXHIBIT NO. CD EXHIBIT NO. 6D PAGE: 1 OF 2 NO UNEMPLOYMENT REPORT. NEW HIRE INFORMATION Date: 12 / 29 / 2016 NO NEW HIRE REPORT. WAGE INFORMATION Date: 12 / 29 / 2016 SSN: 574 - 72 - 3856 NAME / SSN VERIFIED: Y EIN: 920059987 REPORT PROCESSED: 2016 - 10 - 03 LIRILIRIITTRILIIKE111TRELIFE111TR NAME / SSN VERIFIED: Y EIN: 920059987 REPORT PROCESSED: 2016 - 07 - 05 NAME / SSN VERIFIED: Y EIN: 920059987 REPORT PROCESSED: 2016 - 04 - 04 QUARTER PAID: 2ND / 2016 NAME (F, MI, L): MARCUS L KING WAGES PAID: $ 501 EMPLOYER: MUNICIPALITY OF ANCH PAYROLL EMPLOYER ADDRESS: PO BOX 196650 CITY ST ZIP: ANCHORAGE, AK 99519 - 6650 REPORTED BY: AK QUARTER PAID: 1ST / 2016 NAME (F, MI, L): MARCUS L KING WAGES PAID: $ 6544 EMPLOYER: MUNICIPALITY OF ANCH PAYROLL EMPLOYER ADDRESS: PO BOX 196650 CITY ST ZIP: ANCHORAGE, AK 99519 - 6650 REPORTED BY: AK QUARTER PAID: 4TH / 2015 NAME (F, MI, L): MARCUS L KING WAGES PAID: $ 298 EMPLOYER: MUNICIPALITY OF ANCH PAYROLL EMPLOYER ADDRESS: PO BOX 196650 CITY ST ZIP: ANCHORAGE, AK 99519 - 6650 REPORTED BY: AK QUARTER PAID: 3RD / 2015 NAME (F, MI, L): MARCUS L KING WAGES PAID: $ 13692 EMPLOYER: MUNICIPALITY OF ANCH PAYROLL EMPLOYER ADDRESS: PO BOX 196650 CITY ST ZIP: ANCHORAGE, AK 99519 - 6650 REPORTED BY: AK QUARTER PAID: 2ND / 2015 NAME (F, MI, L): MARCUS L KING WAGES PAID: $ 16019 EMPLOYER: MUNICIPALITY OF ANCH PAYROLL EMPLOYER ADDRESS: PO BOX 196650 CITY ST ZIP: ANCHORAGE, AK 99519 - 6650 REPORTED BY: AK QUARTER PAID: 1ST / 2015 NAME (F, MI, L): MARCUS L KING WAGES PAID: $ 18104 EMPLOYER: MUNICIPALITY OF ANCH PAYROLL EMPLOYER ADDRESS: PO BOX 196650 CITY ST ZIP: ANCHORAGE, AK 99519 - 6650 REPORTED BY: AK NAME / SSN VERIFIED: Y EIN: 920059987 REPORT PROCESSED: 2016 - 01 - 07 NAME / SSN VERIFIED: Y EIN: 920059987 REPORT PROCESSED: 2015 - 10 - 05 NAME / SSN VERIFIED: Y EIN: 920059987 REPORT PROCESSED: 2015 - 07 - 06 219 8 NAMEISSN V欧阳予 NO. 6D PA: 28F997 QUARTER PAID: 4TH / 2014 NAME (F. MIL): MARCUS L KING WAGES PAID: $ 15949 EMPLOYER: MUNICIPALITY OF ANCH PAYROLL EMPLOYER ADDRESS: PO BOX 196650 CITY ST ZE: ANCHORAGE, AK 99519 - 6650 REPORTED BY: AK … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … … - REPORT PROCESSED: 2015 - 04 - 06 220 8 hurtu - From: Senator Dan Sullivan (imailagent) [ mailto: casework _ sullivan @ sullivan. senate. gov Sent: Friday, January 20, 2017 2: 05 PM To: Larson, Kirk < Kirk. Larson @ ssa. gov > Subject: Social Security Administration (Intranet Quorum IMA00109399) EXHIBIT NO. 7D PAGE: 1 OF 8 DAN SULLIVAN Alaska 702 HART SENATE OFFICE BUILDING WASHINGTON. IC 20510 (202) 224 - 3004 United States Senate Dear Mr. Larson, On January 18, 2017, my office received an email from Mr. Marcus L. King asking for my assistance with an issue within your agency's jurisdiction. Please find Mr. Marcus L. King's correspondence attached, which is being forwarded for your review and response in compliance with all applicable laws, regulations, and agency policies. I appreciate your careful attention to this matter. Please forward any information that may be helpful to my constituent to Carrie Keil in my district field office at the following location: Constituent Relations Representative Senator Dan Sullivan 510 L Street, Suite 750 Anchorage, AK 99501 - 1956 907 - 271 - 5915 Thank you for your prompt assistance. Sincerely, Tour Su Dan Sullivan United States Senator 221 8 EXHIBIT NO. 7D PAGE: 2 OF 8 Senator Dan Sullivan (Alaska) Privacy Act Release Form Ibis Privacy Act generally requires your written consent before a govcramcnt. agency will release information to my office regarding your records. To better serve you, please complete this form and retun it to the address at the bottom of this page. . . t Nam ARLUS (Please Print Clearly) (Please Phat Clearly) loyd KING First Name ! Middle: Last: 574 - 72 - 3856 Social Security #: Military Branch: (If applicable) fapplicable) Agency / Dept. Tuvolved stregate Ciicle ANCHORAGE Mailing Address: . . Cily: onz 21 - 06 - 2 Saleska Zip Code: Phone: 907 - 350 - 13 43 Date of Birth: _ _ Email: JARKKINGIR @ AK, Net FUHR CUSKI @ GCI, NET PROBLEM: Briefly explain your problem and outline the steps that havo bocn taken by you and the agency with regard to your situation. In addition, please make your request for assistance is specific as possible. Should you require more room, feel free 10 anach a letter addressed directly to the Senator. . . There is A PREU IDU JEHER to Mr. Sullivan Eyales e iny the situation, which is a Hached. Date of Birth: Adeh 23, 79 7. 2 I I PRIVACY ACT: In accordance with the provision of the Privacy Act of 1974, I authorize the Office ofU.S. Senator Dan Sullivan - to obtain information about me from covered agoncies in connection with my - - - - - - - - - - - - - - YAjar xhams Katakse) | lak · Signed: / Date: j - 1g - / 7 Please einail, mall, or fax the signed and completed form and any attachments to:U.S. Senator Dan Sallivan - ' . . .: . - . " . ' . . 222 Case 2: 18 cv. 00007 - TMB Document 13 - 6 Filed 05 / 04 / 18 Page 20 of 28 X: * * . . . . . . . EXHIBIT NO. 7D PAGE: 3 OF 8 Keil, Carolyn (Sullivan) From: Sent: To: Jack King < jackkingjr @ ak. net > Wednesday, January 18, 2017 4: 41 PM casework _ sullivan @ sullivan. senate. gov Emailing: scan0007. pdf, scan0001. pdf, scan0002. pdf scan0007. pdf, scan0001. pdf; scan0002. pdf Subject: Attachments: Dear Carrie, Thank you so very much for your efforts on behalf of Marcus. Aftached are some of the correspondence and the Privacy Act Release Form. I will send a second email with more attachments. If you need any further information such as the treating doctors, hospital records or any question, please contact me by phone or email. Would you please let me know if you get this email. Sincerely. David Jack King Letter: Dear Dan Sullivan,: This matter is urgent and dire and I am asking for your help. I realize that it is the beginning of a new congress and you are extremely busy. However, it is my desire that you would take a little of your time to use your influence that might help with this desperate circumstance .::: My name is David King and the circumstance concerns my son Marcus King and his two sons. My wife, Sue, and I have lived in Alaska for fifty years. We are both retired teachers here in Alaska. I have a home in Kodiak and now a second home here in Anchorage because of the need to help my son and two grandsons. Marcus has the responsibility of a single parent raising two sons, (David - 15 years old and Bryan - 13 years old) . Marcus was born in Alaska, 3 / 23 / 1971, He graduated from Kodiak High School and attended two years of college. In July of 2015 he had a severe stroke (due to chronic high blood pressure) and was hospitalized for two weeks at Anchorage Regional Hospital. Before the stroke, Marcus worked as a journeyman for Anchorage Water and Wastewater Utility for 13 years. As one of his many doctors stated on December 20, 2016 the result of the stroke caused diplopia (double vision) and peripheral vision loss in both eyes. Therefore, he is unable to drive and perform daily tasks on his own, safely. " Also, the other main result of the stroke caused a severe defect in his ability to communicate and form words. Marcus tried to go back to work for a couple weeks in January of 2016, but to the fact he could not drive or communicate effectively he was unable to continue. Marcus has applied for Social Security Disability and he has hire the Law Offices of Ogle, Elrod and Baril to help him with the procedure. Marcus is receiving short term disability benefits from the contract of his union with the state of Alaska Department of Administration, Division of Retirement and Benefits. (which provides Marcus and his two children with health insurance .) Due to the extended length of time to hold the hearing by Social Security Administration, it has put Marcus in dreadful and a desperate situation. In December of 2016, the Alaska Division of Retirement and Benefits (Deborah Spiech) sent Marcus a letter stating the provisions under which you were appointed to nonoccupational disability require proof of Soci one year of your appointment date. In your case, this information is due February 15, 2017. " I had Social Security Office of Disability Adjudication and Review (Alexandra Wormuth) write a letter to the ADRB which explained that the hearing pending for Marcus is in the works but the hearing would not be held until later spring or early summer of this year. We asked the State of Alaska Department of Administration for an + + ., 1 ., . . . . 223 8 EXHIBIT NO. 7D RAGE: 4 OF 8 extension and offered to repay any insurance cost that might occur due to the extension of the healtthcare coverage. They refused. Also, the Law Fim wrote the office of Social Security Disability Adjudication and Review here in Anchorage requesting an expedited hearing due to dire circumstance. We have not heard back from Social Security. Marcus is under medical treatment from five doctors and a speech therapist. It would be catastrophic if Marcus would be without health insurance for himself and his two young sons. Either of two solutions would be acceptable: 1. The State Department of Retirement and Benefits extend Marcus ' health insurance until Social Security has the hearing (we would gladly pay the state of Alaska the cost of the insurance) 2. Have Social Security conduct the hearing and render a decision before February 15, 2017 (before the insurance is set to expire .) Any consideration of your time would be greatly appreciated. If you have question that I can answer my phone number is 907 - 351 - 0652. Marcus ' SS #: 574 - 72 - 3856 Alaska Department of Administration Division of Retirement and Benefits RIN # R000259553, phone number — 907 - 465 - 4460 Alaska Social Security Office of Disability Adjudication and Review - - - 855 - 602 - 5004 Sincerely, ' • - . . David King (jackkingirwak. net) . 224 8 EXHIBIT NO. 7D PAGE: 5 OF 8 SOCIAL SECURITY ADMINISTRATION 3 Refer To: 574 - 72 - 3856 Marcus Loyd King Office of Disability Adjudication and Review 6th Floor, Suite 610 188 W. Northern Lights Blvd. Anchorage, AK 99503 Tel: (855) 602 - 5004 / Fax: (907) 271 - 6271 December 7, 2016 To Whom It May Concern: This letter is to confirm that Mr. Marcus L. King has a disability hearing pending at the Anchorage SSA Office of Disability Adjudication and review, His hearing has not been scheduled yet, and at this time the docket calendars of the Administrative Law Judges are scheduled out to March. Mr. King's hearing is not likely to be held until late spring or early summer. * Sincerely, JE Wermuda Alexandra Wormouth Hearing Office Case Analyst cc: Marcus Loyd King 3500 Stargate Circles Anchorage, AK 99517 · . . . - - * . -:: . . . . . . . . . . . . . . 225 8 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - . - - - - . - - - - - - - - - - L - DI NO. 7D E PAGES OF 8 - - THE 8 - AL OF THE STATE Department of Administration - ALASKA - . - GOVERNOR BILL WALKER LABBS DIVISION OF RETIREMENT AND BENEFITS sth Flaor State Office Building 333 Willoughby Avenue P. O. Box 110203 Juneuv, AK 99811 - 0203 FAX: (907) 465 - 3086 Phone: (907) 465 - 4460 Toll - Free: (800) 821 - 2251 USPS TRACKING NO .: 9114 9014 9646 0695 9673 75 December 1, 2016 - Mr. Marcus L. King 3500 Stargate Circle Anchorage, AK 99517 - 1642 ' RIN: R000259563 - - . . ., . . - E .: Dear Aſr. King, * * During a recent review of your file, it came to my attention that proof of a Social Security Anard of Disability has not yet been received by the Division. The provisions under which you were appointed to nonoccupational diaability require proof of Social Security Award of Disability within one year of your appointment date. In your case, this information is due February 15, 2017. PLA. . l. . . Please submit a copy of your approval / denial letter as soon as possible. mi Your disability benefits will be suspended after the February 2017 benefit if the required documentation has not yet been received. If you have any questions regarding this information, please feel free to call me at (907) 465 - 5701 or toll free at (800) 821 - 2251. Sincerely, nel Deborah Spiech Member Benefits - 5. surveat. . . L L - FI DISCLAMER: The information contained in this letter is based on the specific facts and circumstances presented and cannot be applied to other facts and circumstances. This letter may. contain a summary description of bcncfits, costs, rates, valisalivib, udher calculations, policies or procedures for one or more pension or benefit planis administered by the Division of Retirement and Benefits, including but not limited to, the Public Employees ' Retirement System, the Teachen " Retirement System, the Judicial Retirement Systein, the Supplemental Arnuity Plan; the Deferal Compensation Plan, the AlaskaCare Employce Health Plan, of the Alaska Care Retires Benefit Plan: The Division of Retirement and Bonefits has made tvary effort to tosure, but does nol GUBTentce, that tho infomation provided is accurate and up to date. Where this later conflicts with die relevani Plan Documenj, the Plan Docuinent controls, - - 1 " L 4. 226. 8 Members: The Law Offices of Hely T. " Spaire " age 1021 - 2006 Two G. Frd Jason K. Horit. . . . OGLE, EROD & BARL, PLLC 706 Waloit Steet Suite 860 Knoxvile, TN 37902 Associates: Jennifer K. O ' Connell Telephone: (865566 - 4800 Fax: (8653 - 2681 Michael S. Bernard To Free: 1 - 8664位88379 Linda Garier Bet: Email: Disablity @ laweb. com S. E Knight Manther D. Dater Douglas C. Jan Pinkle December 6, 2016 JUSTİN H. Bolnoir EXHIBIT NO. 70 Artw / OF 8 Personal Injury Aulo Accidents | Artin d Fat Negligence Porter's CarrenTalton Family Law Divorce Child Custody Jinyonlle Count Child Support Orders of Prorsction Conteng Criminal Law MideaPangr Felony DUI Bankruptcy Chapter ? Social Security Disability 的 SSDI Associated: Adam L, Ltd = tu Marcus Loyd King 3500 Stargate CST Anchorage, AK 99517 E. HHI4p4V Marcus L. oyd King 8 - 16215的 RIN - RM00259553 CASEW PM GRANEL Mi k maska 77次例成SkA To Whom It May Concern: Please be advised that our office represents the above referenced client in regard to their Social Security disability claim. Mr. King has a disability case that was opened in mid - 2015 and has been pending at the hearing level since August 2016. The typical timeframe to get a case sohcduled for a hearing is anywhere from 12 - 18 months on average, but it could take longer depending on the volume of hearing requests in the area. Should you have any questions please do not hesitatc to contact our office. Thank you. Sincerely, . . . . Kristy Evans, Legal Assistant for The Law Offices of Ogle, Elrod & Baril, PLLC. . ., . . … … . - . - - Hurt 1 / 4 it it ' … 一一一 227 8 Members: Renry T. Mimº Ogle 1933 - 2005 Timothy G. Elrad Jason K. Baril The Law Offices of OGLE, ELROD & BARIL. PLLC 706 Walnut Street, Suite SM Knoxville, TN 37902 Telephone: (865) 566 - 0800 Fax: (865) 523 - 2681 Email: Disability @ lawoeb. com Associates Jennifer k. O ' Connett Michael S. Berard Lłada Gamer Betz S. E. Knight Matthew D. Osten Douglas C. Van Winkle JUST H. Bolasom EXHIBIT NO. 7D Area ristic OF 8 Persoaf foury: An accident Slip and Fall Negligence Worker's Compangilion Family Law Divorce Child Custody Orders of Protection Contempt Chiminal Law Msdemeanor Felany Associated: Adam M. Trod December 20, 2016 DU Bankraply Chapter 7 Social Security Disability SSI SSD / ODAR 188 W Northern Lights Blvd 6th Floor Anchorage, AK 99503 RE: Dire Need Letter Marcis King 574 - 72 - 3856 To Whom It May Concert: . O .: . . This letter is to request that Marcus King's claim be expedited due to health and financial reasons. The claimant's state - fimded disability benefits will be suspended on February 15, 2017 due to no disposition of this request for benefits. - - - For the above reasons we ask that the hearing date be scheduled as soon as possible. Kindest regards, Jason K. Baril, Attorney -, - . ., . 4. A hiya s. . . .::: ' n .: .:: . . . . . ' LE I, IF:: Cr 228. . . 8 SOCIAL SECURITY ADMINISTRATION II. Refer To: 574 - 72 - 3856 MINISTRAS Marcus Loyd King EXHIBIT NO. 8D Office of Disability Adjudication angKevleri 6th Floor, Suite 610 188 W. Northern Lights Blvd. Anchorage, AK 99503 Tel: (855) 602 - 5004 / Fax: (907) 271 - 6273 r January 24, 2017 The Honorable Dan Sullivan United States Senator 510 L Street Suite 750 Anchorage, AK 99501 COPY Dear Senator Sullivan: - - This is in response to your inquiry of January 20, 2017 regarding Marcus Loyd King (574 - 72 - 3856) . - We have received Marcus Loyd King's request for hearing and are preparing the file for assignment to an Administrative Law Judge. The Dire Need request received from the claimant's representative's office has been granted and the case is being processed accordingly. We will inform you of any developments in the case. If you have further questions about this case, please contact this office at (855) 602 - 5004. Sincerely, haldsrbyt William P. Reeves Hearing Office Director I ' cc: Marcus Loyd King 3500 Stargate Circle Anchorage, AK 99517 Form HA - L47 (01 - 2012) 229 8 N. SECO alla SOCIAL S DES SOCIAL SECURITY ADMINISTRATION MUILO Refer To: 574 - 72 - 3856 Marcus Loyd King EXHIBIT NO. 9D PAGE: 1 OF 1 Office of Disability Adjudication and Review 6th Floor, Suite 610 188 W. Northern Lights Blvd. Anchorage, AK 99503 Tel: (855) 602 - 5004 / Fax: (907) 271 - 6271 June 6, 2017 The Honorable Lisa Murkowski United States Senator 510 L Street Suite 550 Anchorage, AK 99501 Dear Senator Murkowski: This is in further response to your inquiry regarding Marcus Loyd King 574 - 72 - 3856. Marcus Loyd King's hearing was held on May 23, 2017, and a decision is now being prepared. We will notify you of the decision when it is released. If you have further questions about this case, please contact this office at (855) 602 - 5004. Sincerely, Sincerely, brdoados William P. Reeves Hearing Office Director cc: Marcus Loyd King 3500 Stargate Circle Anchorage, AK 99517 Form HA - LA7 (01 - 2012) 230 Casė 3: 18 - cv - 00007 - TMB Document 13 - 6 Filed 05 / 04 / 18 Page 28 of 28

MEMORANDUM of Law in Support of Social Security Appeal by Marcus Loyd King.

1 Edward A. Wicklund, Esq. Attorney for Plaintiff 2 Pro hoc vice 3 Olinsky Law Group 300 South State Street, Suite 420 4 Syracuse, New York 13202 5 Telephone: (315) 701-5780 Fax: (315) 701-5781 6 twicklund@windisability.com 7 Of Attorney for Defendant 8 9 UNITED STATES DISTRICT COURT DISTRICT OF ALASKA 10 11 MARCUS LOYD KING, 12 Plaintiff, CIVIL ACTION NO. 3:18-cv-00007 (TMB) 13 -v- 14 NANCY A. BERRYHILL, 15 ACTING COMMISSIONER OF SOCIAL SECURITY, 16 Defendant. 17 ----------------------------------------------------------- 18 PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT 19 OF A SOCIAL SECURITY APPEAL 20 STATEMENT OF ISSUES 21 1. The ALJ erred when she rejected the opinions of treating physician Dr. DeBerard, 22 treating psychologist Dr. Smith, and treating speech pathologist Ms. Verhoef; 2. The ALJ failed to weigh, mention, or discuss, a certain opinion from treating optometrist 23 Dr. Kompkoff; and 3. The ALJ failed to reconcile her "significant" weight determination with certain portions 24 of Dr. Lebeau's testimony. 25 STATEMENT OF FACTS 26 A. Procedural Status 27 28 1 3 1 On May 13, 2016, Marcus Loyd King ("Plaintiff") filed for Title II disability insurance 2 benefits alleging disability beginning February 16, 2016, due to a stroke, chronic kidney disease 3 stage three, congestive heart failure, double vision, and speech issues. Administrative Record 4 5 ("T") at 91, 245. Plaintiff's claim was initially denied on July 15, 2015. T 91. Plaintiff 6 subsequently request a hearing, which was held on May 23, 2017, before Administrative Law 7 Judge Cecilia LaCara ("ALJ"). T 32-99. On August 7, 2017, the ALJ issued an unfavorable 8 decision denying Plaintiff benefits. T 15-26. On November 8, 2017, the Appeals Council denied 9 Plaintiff's request for review, leaving the ALJ decision as the final agency determination. T 1. 10 11 Plaintiff timely filed this cause of action currently before the Court, which has jurisdiction under 12 42 U.S.C. § 405(g). 13 At Step 1, the ALJ determined Plaintiff met the insured status requirements of the Social 14 Security Act through December 31, 2020. T 17. The ALJ also determined Plaintiff had not 15 engaged in substantial gainful activity since February 16, 2016, the alleged onset date. T 17. At 16 17 Step 2, the ALJ determined Plaintiff had the following severe impairments: malignant 18 hypertension; pulmonary hypertension; cardiovascular disease; chronic kidney disease; and 19 neurocognitive disorder status-post cerebral vascular accident. T 17. At Step 3, the ALJ 20 determined Plaintiff's impairments did not meet or equal a Listing. T 18. The ALJ also 21 22 determined Plaintiff had mild limitations in understanding, remembering, or applying 23 information; moderate limitations with interacting with others; no limitations with concentrating, 24 persisting, or maintaining pace; and no limitations in adapting or managing oneself. T 18-19. 25 Thus, the ALJ determined Plaintiff could perform medium work: 26 The claimant can stand or walk a total of 6 hours in an 8-hour workday, and sit for 27 6 hours in an 8-hour workday with normal breaks. The claimant can frequently 28 climb ramps or stairs. The claimant can frequently balance, stoop, kneel, crouch, 2 3 1 and crawl. The claimant cannot climb ladders, ropes, or scaffolds. The claimant must avoid all exposure to unprotected heights. The claimant must avoid 2 concentrated exposure to hazardous machinery. The claimant is limited to 3 occupations that do not require frequent verbal or telephone communication. The claimant is limited to occupations that only require frequent depth perception and 4 right peripheral acuity. The claimant is limited to only occasional interaction with 5 the general public, and only superficial interaction with coworkers. 6 T 19. At Step 4, based on Vocational Expert ("VE") testimony, the ALJ determined Plaintiff 7 was unable to work past relevant work. T 24. At Step5, based on VE testimony, the ALJ 8 determined Plaintiff could work other jobs in the national economy including Janitorial work 9 (DOT#381.687-018), Cleaner II (DOT#919.687-014), and Laundry Worker I (DOT#361.684- 10 11 014). T 25. Ultimately, the ALJ determined Plaintiff was not disabled. T 25-26. 12 B. Medical Record 13 On July 16, 2015, treating physician Terry L. Lester, M.D., completed a rehabilitation 14 admission evaluation. T 361. Dr. Lester noted that on July 8, 2015, Plaintiff at presented to the 15 emergency department after his father had found him confused. T 361. Examining notes 16 17 indicated Plaintiff had systolic blood pressured and a CT scan revealed a left temporoparietal 18 inter-cerebral hemorrhage due to malignant hypertension. T 361-62. Dr. Lester noted Plaintiff 19 continued to have the following functional impairments: fatigue, decreased functional mobility, 20 decreased fine motor control and coordination, cognition impairment, aphasia, and impaired self- 21 cares. T 362. Upon exam, Dr. Lester noted Plaintiff verbal interaction skills were decreased 22 23 with slowed speech and required prompting. T 365-66. Diagnostic testing revealed pulmonary 24 edema, mildly decreased ejection fraction ("EF") rate of 40-45 percent, left ventricular diastolic 25 dysfunction, and a left-sided parenchymal hemorrhage. T 366. 26 Between July 20, 2015, and November 20, 2015, Plaintiff participated with inpatient 27 rehabilitation therapy, with speech pathologist Anne L. Verhoef, who documented improvements 28 3 3 1 in his functional capacity. T 419, 424-505. Providers indicated although partaking in 2-3 2 sessions per week since the past July, he still struggled with language expression and information 3 retention. T 419. 4 5 In February 5, 2016, Plaintiff treated with Ms. Verhoef for language therapy. T 560. By 6 this time, Plaintiff had consistently engaged in therapy with Ms. Verhoef and had also returned 7 to work. T 560. Plaintiff reported problems at work in terms of retaining information and 8 processing with the number of sequences involved in his job. T 560. Ms. Verhoef indicated 9 Plaintiff was able to do a lot of tasks but could not verbalize the sequence in the tasks. T 560. 10 11 Plaintiff expressed worries that he would not be able to verbalize adequately enough to perform 12 the functions of his job. T 560. 13 On February 17, 2016 Plaintiff treated with Scott DeBerard, D.O., for treatment of his 14 headaches and vision loss. T 589. Plaintiff reported that over the past month, he had pain in his 15 right temple and was not able to see out of his right eye for about a minute. T 589. Plaintiff also 16 17 reported that he had one episode where he could not recall where he was or why he was there 18 and had to call his mother to find out. T 589. Dr. DeBerard noted that Plaintiff had been sent 19 home from work due to being emotional liable and angering easily, yet was not interested in 20 treatment for this. T 589. 21 22 On February 20, 2016, Plaintiff reported to the Emergency Department ("ED") 23 complaining of increasing right-sided headaches with periods of difficulty speaking, increasing 24 memory issues and markedly dysarthric speech. T 561. ED providers noted to be quite ataxic 25 and nearly fell several times. T 561. Discharge notes dated February 22, 2016, indicated that 26 Plaintiff was suffering from severe pain in the right eye. T 576. Providers also noted Plaintiff 27 28 was extremely unstable on his feet and could not maintain his balance. T 576. Plaintiff also 4 3 1 reported several episodes of complete loss of vision that lasted between five to ten minutes each. 2 T 576. 3 On February 24, 2016, Plaintiff treated with Dr. DeBerard for treatment of his headaches. 4 5 T 587. Plaintiff reported that his headaches developed after he started driving to work, which 6 was mentally tasking for him and precipitated his symptoms. T 588. Dr. DeBerard 7 recommended Plaintiff not return to work until his symptoms were completely resolved. T 588. 8 Dr. DeBerard indicated that he suspected Plaintiff had returned a bit early in his efforts to return 9 Plaintiff to gainful employment. T 588. 10 11 On February 26, 2016, Plaintiff treated with Ms. Verhoef for speech therapy. T 838. 12 Plaintiff reported he had stopped functioning at work and could not continue working or driving 13 due to vision problems. T 838. Plaintiff also reported more communication and cognitive 14 issues. T 838. Ms. Verhoef noticed that upon assessment, Plaintiff had significant difficulty 15 with retaining certain information. T 839. Ms. Verhoef also noted that Plaintiff had a decline in 16 17 word finding and sound sequencing. T 839. During a subsequent session dated February 29, 18 2016, Ms. Verhoef noted that Plaintiff's vision and communication difficulties were a barrier for 19 returning to work. T 842. 20 In June 2016, Plaintiff began optometrist therapy with Laura Kompkoff, O.D. T 916-28. 21 22 Plaintiff engaged in a series of tests such as "Marsden Ball with Hart Chart," and "Color Cubes," 23 designed to focus and retrain Plaintiff's visual acuity. T 919, 923. On June 28, 2016, Dr. 24 Kompkoff indicated Plaintiff's vision was worsening and that he was having different acuity in 25 each eye. T 916. Dr. Kompkoff noted Plaintiff was aware that he switched between eyes and 26 wished he could use both eyes at the same time. T 916. 27 28 5 3 1 On July 16, 2016, Plaintiff treated with Dr. DeBerard for a physical. T 952. Dr. 2 DeBerard indicated Plaintiff was medically retired and needed his disability paperwork 3 completed. T 952. Dr. DeBerard also noted Plaintiff continued to have significantly decreased 4 5 executive functions with expressive aphasia, and although some days were better than others, he 6 was not improving. T 952. 7 On September 30, 2016, Plaintiff treated with Dr. DeBerard for a disability evaluation. T 8 958. Dr. DeBerard noted the following: Plaintiff suffered from continuing lethargy and 9 decreased mental function following a large left temporary hemorrhage in July 2015; he had not 10 11 regained right peripheral vision; he fatigued easily and could be up and around for only a few 12 hours without stopping to rest; and he had tried to return to work but was unable to do so. T 958. 13 Dr. DeBerard also noted Plaintiff continued therapy with a speech pathologist and a 14 psychologist. T 958. 15 On December 1, 2016, Plaintiff treated with Stefano Emili, M.D., for an evaluation of his 16 17 hypertension. T 940. Dr. Emili indicated Plaintiff was suffering from significant neurologic 18 deficits from an intracerebral hemorrhage. T 942. Dr. Emili indicated Plaintiff's thought 19 process was still slow to return and that he was disabled as he could no longer perform his job. T 20 940. 21 22 On February 11, 2017, Plaintiff treated with Dr. DeBerard for another disability 23 evaluation. T 1078. Dr. DeBerard noted that Plaintiff had continued lethargy and decreased 24 mental functioning; he had not regained right peripheral vision and has actually been diagnosed 25 as totally blind in his right eye; he fatigued easily; and he was struggling with anxiety and 26 insomnia. T 1078. Notably, Dr. DeBerard indicated further improvement in Plaintiff's condition 27 28 was not likely. T 1079. 6 3 1 In April 2017, Plaintiff's treating psychologist Bruce Smith, Ph. D., issued a letter stating 2 he had treated with Plaintiff on a consistent basis since 2014. T 1091. Plaintiff had been treated 3 for PTSD yet since his stroke in July 2015, the focus of Dr. Smith's treatment had been on 4 5 accommodation of his disabilities and acceptance of his functional limitations. T 1091. 6 C. Opinion Evidence 7 On June 20, 2016, treating optometrist Dr. Kompkoff issued a statement, stating Plaintiff 8 suffered from a peripheral vision impairment in his lower right visual filed and double vision 9 hindering his ability to perform. T 915. Dr. Kompkoff also opined Plaintiff had a visual 10 11 processing and visual motor disorder that reduced reaction times and visual memory, which 12 made it difficult for him to concentrate and adapt. T 915. 13 On September 30, 2016, treating physician Dr. DeBerard issued a medical source 14 statement on Plaintiff's physical functionality. T 1093. Dr. DeBerard opined Plaintiff suffered 15 from a lack of any type of peripheral vision in his right eye; decreased physical capacity; and 16 17 impaired communication skills due to a large stroke in July 2015. T 1093. He opined Plaintiff 18 would miss more than five days of work per month due to his impairments. T 1093. Dr. 19 DeBerard also opined Plaintiff had the following limitations: he could only walk one-third of an 20 eight-hour workday; he could frequently lift/carry one to give pounds during the eight-hour 21 workday and could occasionally lift/carry six to 10 pounds during the same day, yet never 22 23 anymore; due to decreased vision and coordination, he could never use his hands for fine 24 manipulation and only use his hands for gross manipulation occasionally; due to fatigue, he 25 would need to lie down between one to two hours during the eight-hour workday; and he would 26 need to take unscheduled breaks during an eight-hour workday beyond the normal amount. T 27 28 1093-94. 7 3 1 On October 3, 2016, treating psychologist Dr. Smith completed a medical source 2 statement on Plaintiff's mental limitations, which was cosigned by Dr. DeBerard. T 1095-97. 3 Dr. Smith opined Plaintiff had marked limitations in understanding and memory; marked 4 5 limitations in sustained concentration and persistence; marked limitations in social interaction; 6 and marked limitations in adaptation. T 1095-97. Dr. Smith explained Plaintiff would 7 experience increased pressured due to current frustration over his cognitive limitations and 8 ongoing anger would lead to decompensation. T 1095. Dr. Smith opined Plaintiff would be off 9 task during the eight-hour workday 60 percent of the time due to his impairments. T 1095. 10 11 On October 3, 2016, treating speech pathologist Verhoef completed a medical source 12 statement on Plaintiff's cognitive limitations, cosigned by Dr. DeBerard. T 1098-1100. Ms. 13 Verhoef opined Plaintiff had moderate to marked limitations in sustained concentration and 14 persistence; and marked limitations in adaptation. T 1099-1100. Ms. Verhoef opined Plaintiff 15 would miss more than two days per month due to his disabilities. T 1098. She opined Plaintiff's 16 17 increased stress would result in decreased communication skills and that he exhibits increased 18 word retrieval impairments when under pressure to communicate quickly. T 1098. Ms. Verhoef 19 also opined Plaintiff would be off task 40 to 50 percent of the workday due to his condition. T 20 1098. 21 22 On December 20, 2016, Dr. Kompkoff issued a statement on Plaintiff's eyesight and how 23 it related to this functional capacity. T 1071. Dr. Kompkoff noted Plaintiff suffered from 24 diplopia (double vision) and peripheral vision loss in both eyes. T 1071. Dr. Kompkoff opined 25 Plaintiff was unable to drive and perform daily tasks on his own safely. T 1071. 26 D. Hearing Testimony 27 28 Plaintiff testified to the following: 8 3 1 He could not return to work because he could not say the right words and process what he 2 was doing. T 64. He would make mistakes. T 64. He has no vision in his right eye. T 64. He 3 did not drive. T 64. He did not do yardwork, grocery shop, vacuum, do laundry, mop or sweep, 4 5 cook because he could not see well enough to do so. T 64-65. He went to his children's hockey 6 games but did not coach, skate or play with them. T 66. His parents drove him to the games. 7 66. He used to engage in outdoor activities but could not since his stroke. T 67. He could not 8 see the puck or the jersey numbers at the hockey game. T 57. He had problems with fatigue; he 9 took naps every day ranging between three to four hours; he moved back into his parent's house 10 11 after his stroke; and he needed to be reminded to take his pills every day. T 69-70. He had 12 problems with depth perception and handling items, like a screwdriver. T 71-72. He had 13 restrictions on his driver license. T 74. He made one camping trip the year prior with his entire 14 family. T 80. 15 Non-examining medical consultant Collette Valette, Ph. D., testified to the following: 16 17 Plaintiff did not meet or equal a listing. T 42. Plaintiff had a mild impairment in 18 executive functioning. T 42. Plaintiff had mild limitations in understanding, remembering, or 19 applying information; moderate limitations in interacting with others; mild to marked limitations 20 in speech and language; no limitations in concentration, persistence, or pace; and no limitations 21 22 in adaptation. T 43. He would be limited with speech. T 44. From a psychological point of 23 view, a cognitive impairment from trauma generally can be rehabilitated within two years yet 24 after that point, "they are what they are." T 46-47. 25 Non-examining medical consultant Jack Lebeau, M.D., testified to the following: 26 Plaintiff's heart disease, kidney disease, and brain disease was enough to make a 27 28 combined listing. T 53. Plaintiff is not going to get better, and that he has enough wrong with 9 3 1 him that in the workplace, it is going to be clumsy, difficult, and possibly dangerous. T 54. The 2 listings are often so, not harsh, but severe. T 54. Plaintiff's stroke affected the optic track. T 55. 3 He could life ten pounds continuously, 11 to 20 pounds frequently and 50 pounds occasionally. 4 5 T 55. He could sit for two hours at one time and seven hours during an eight-hour workday; 6 stand for an hour at one time and four-hours during the course of the workday; and walk half an 7 hour at one time and two hours during the course of the workday. T 56. He had no limitations 8 with his hands and he could perform postural activities frequently. T 56. He could not work in a 9 range of different environments. T 56-57. Dr. Valette was a psychologist and was not able to 10 11 give full consideration to some of the brain damage effects of a stroke like this. T 58. "I really 12 agree with the doctor, reached a level where further improvement is apparently going to be 13 unlikely." T 59. "I don't think an employer would actually, in all honesty judge, put up with the 14 difficulty that this gentleman has." T 59. Once Plaintiff had this big stroke, he would probably 15 have fatigue the rest of his left, with fatigue being tiredness that does not improve with sleep. T 16 17 61. Plaintiff would have difficulty sustained an eight-hour workday. T 62. 18 STATEMENT OF ISSUES 19 1. The ALJ erred when she rejected the opinions of treating physician Dr. DeBerard, 20 treating psychologist Dr. Smith, and treating speech pathologist Ms. Verhoef. 21 Treating physician Dr. DeBerard, treating psychologist Dr. Smith, and treating speech 22 pathologist Ms. Verhoef each issued medical source statements opining on Plaintiff's functional 23 capacity. T 1093, 1095, 1098. Despite each having a long treating relationship with Plaintiff, 24 the ALJ rejected the dispositive portions of each opinion. T 21-22, 1093, 1095, 1098. However, 25 26 the ALJ's reasons for rejecting these opinions were cursory, disingenuous, and contrary to the 27 established legal standard. T 21-22. Because each opinion opined to some form of limitation 28 10 3 1 that was potentially work-preclusive, the ALJ's determinations was highly prejudicial to 2 Plaintiff's claim and reversal of the final determination of disability is fully warranted. 3 "In…disability benefits cases…physicians may render medical, clinical opinions, or they 4 5 may render opinion on the ultimately issue of disability-the claimant's ability to perform work." 6 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted). "In conjunction with the 7 relevant regulations, we have…developed standards that guide our analysis of an ALJ's 8 weighing of medical evidence." Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 9 2008). "Specifically, we 'distinguish among the opinions of three type of physicians: (1) those 10 11 who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 12 (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining 13 physicians).'" Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Lester v. Chater, 14 81 F.3d 821, 830 (9th Cir. 1995)). As a general rule, more weight should be given to the opinion 15 of a treating source than to the opinion of doctors who do not treat the claimant. Garrison, 759 16 17 F.3d 995 at 1012 (citing cases). 18 A treating opinion is entitled to "controlling weight" if it is (i) "well-supported by 19 medically acceptable clinical and laboratory diagnostic techniques" and if it is (ii) "not 20 inconsistent with the other substantial evidence in the case." 20 C.F.R. § 404.1527(c). Under 21 22 Ninth Circuit precedent, if a treating opinion is not afforded controlling weight, nor contradicted 23 by another doctor's opinion, the ALJ must provide "clear and convincing" reasons for rejecting 24 the uncontradicted opinion. Lester, 81 F.3d at 830. "Even if a treating physician's opinion is 25 contradicted, the ALJ may not simply disregard it. The ALJ is required to consider the factors set 26 out in 20 C.F.R. § 404.1527(c)(2)-(6) in determining how much weight to afford the treating 27 28 physician's medical opinion." Ghanim, 763 F.3d at 1161 (citing Orn v. Astrue, 495 F.3d 625, 11 3 1 631 (9th Cir. 2007). Remand for calculation of benefits is fully warranted when an ALJ 2 erroneously rejects the opinion of a treating or examining physician. See Jamieson v. Astrue, 3 341 Fed. Appx. 283, 285 (9th Cir. 2009)(holding that where the commissioner fails to provide 4 5 adequate reasons for rejecting the opinion of a treating or examining physician, "we credit that 6 opinion as a matter of law," and if it is clear from the administrative record that the ALJ would 7 be required to find the claimant disabled on remand, the court typically remands for calculation 8 of benefits) (internal citations and quotations omitted)). 9 For each favorable portion of these opinions in question, the ALJ provides the same 10 11 cursory explanation for rejecting them: they are inconsistent with the testimony from a non- 12 examining physician and/or they are inconsistent with Plaintiff's activities, including a camping 13 trip and a purported ability to drive. T 20-22. However, these reasons are insufficient to reject 14 three treating opinions. In terms of daily activities, the ALJ does not specifically explain how 15 these contradict or show inconsistencies with the treating opinions. T 20-22. Indeed, the Ninth 16 17 Circuit has cautioned how ALJ's should use evidence relating to daily activities when weighing 18 opinion evidence. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) ("A claimant need 19 not be completely incapacitated to receive benefits…Ghanim's limited daily activities are not in 20 tension with the opinions of his treating providers."); Trevizo v. Berryhill, 871 F.3d 664, 682 (9th 21 22 Cir. 2017) ("Moreover, many home activities are not easily transferable to what may be the more 23 grueling environment of the work place, where it might be impossible to periodically rest or take 24 medication.") (internal citations, quotations, and alterations omitted). The ALJ merely states 25 these daily activities are inconsistent but without more specification, a reviewing Court is left in 26 complete speculation as to how Plaintiff's limited activities contradict three different treating 27 28 opinions. 12 3 1 Additionally, the ALJ wrongfully described the nature, frequency, and intensity of 2 Plaintiff's daily activities. T 20-22. This was erroneous. See Schow v. Astrue, 272 Fed.Appx. 3 647, 652 (9th Cir. 2008) ("Finally, the ALJ overstated Schow's ability to carry on daily 4 5 activities."); Franz v. Colvin, 91 F.Supp.3d 1200, 1215 (D. Or. 2015) (holding the ALJ 6 mischaracterized the record and thus erred when he found a treating physician's opinion to be 7 inconsistent with Plaintiff's daily activities to reject certain limitations within the opinion). 8 Here, the ALJ grossly mischaracterizes Plaintiff's activities, which include being "able to drive 9 independently down to Kenai and Homer in the winter, take his children to hockey games, help a 10 11 friend move a 4-wheeling, and go camping." T 20. This analysis is exaggerated and 12 disingenuous, specifically with the ALJ's continued insistence that Plaintiff was able to 13 drive…which was routinely utilized in her decision to reject favorable evidence for Plaintiff's 14 claim. T 20-23. 15 While there was a period where Plaintiff was driving after his stroke in July 2015, he 16 17 quickly abated such an activity when his vision started to worsen and stopped completely 18 thereafter. In February 2016, Plaintiff reported pain in his right temple and episodes where he 19 was not able to see out of his right eye. T 589. Plaintiff reported that his headaches developed 20 after he started driving to work, which was mentally tasking for him and precipitated his 21 22 symptoms. T 588. On February 26, 2016, Plaintiff reported he had stopped functioning at work 23 and could not continue working or driving due to vision problems. T 838. There is nothing in 24 the record that indicates Plaintiff drove at all after that date. During the hearing, Plaintiff 25 testified he did not drive and that his parents drove him to his children's hockey games. T 64. 26 He also testified that he had restrictions placed on his driver's license. T 74. In terms of 27 28 camping, Plaintiff only testified he went one time with his entire family in 2016, and was not 13 3 1 something done frequently. T 80. In fact, Plaintiff testified that he no longer engaged in outdoor 2 activities since his stroke. T 67. An objective review of the record shows the ALJ to grossly 3 overstate the extent of Plaintiff's daily activities to reject favorable evidence, specifically opinion 4 5 evidence from his treating providers. 6 Finally, the ALJ seems to think that Plaintiff's effort to support his sons and spend time 7 with them somehow contradicts the opinions in question. T 20. However, this notion is not a 8 sufficient reason to reject all three of Plaintiff's treating providers. See Binford v. Colvin, 113 9 F.Supp.3d 1067, 1073 (W.D. Wash. 2015) ("Lastly, Plaintiff's ability to maintain a relationship 10 11 with his son and father, and his ability to sometimes interact appropriately with doctors during 12 one-time examinations, are not indicative of Plaintiff's ability to maintain competitive work 13 because, as the Commissioner's own regulations caution, ability to function in a work 14 environment should be determined based on an individual's ability to perform tasks in other 15 settings that are less demanding, highly structured, and more supportive. 20 C.F.R. Pt. 404, 16 17 subpart P, Appendix 1, § 12.00 C(3). See also Garrison, 759 F.3d at 1016). Considering all of 18 this, the ALJ's analysis concerning Plaintiff's activities is vague, conclusory, and fails to show 19 any inconsistence with the three opinion's under issue. Additionally, the ALJ mischaracterized 20 Plaintiff's activities in a prejudicial manner and do not reasonably support her determination to 21 22 reject certain opinion evidence. The ALJ erred in this regard. 23 The other reason the ALJ provides for rejecting Dr. DeBerard, Dr. Smith, and Ms. 24 Verhoef's opinion was because they were inconsistent with the testimony from the two non- 25 examining medical consultants who testified at the hearing. However, the relevant standard 26 holds that this is an insufficient reason to reject a treating or examining opinion. "The opinion of 27 28 a nonexamining physician cannot by itself constitute substantial evidence that justifies the 14 3 1 rejection of the opinion of either an examining physician or a treating physician." Lester, 81 2 F.3d at 831. The "contrary opinion of a non-examining medical expert does not alone constitute 3 a specific, legitimate reason for rejecting a treating or examining physician's opinion…." 4 5 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). "The failure to provide a specific 6 and legitimate reason for rejecting the opinion of an examining physician, beyond the 7 contradictory opinion of a nonexamining physician, is error." Swanson v. Commissioner of 8 Social Security Administration, 274 F.Supp.3d 932, 939 (D. Ariz. 2017) (citing Lester, 81. F.3d 9 at 831); see also Lester, 81 F.3d at 831; Pitzer v. Sullivan, 908 F.2d 502, 506 n. 4 (9th Cir. 1990); 10 11 Gallant, 753 F.2d at 1456. As stated, the only other reason the ALJ provided for rejecting the 12 opinions under issue was based on a faulty and disingenuous assessment of Plaintiff's activities, 13 and as such, the ALJ's reliance on the non-examining opinions was clearly erroneous, as the 14 opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies 15 the rejection of three treating opinions. Because the ALJ did not provide any other legitimate 16 17 reason for rejecting the opinions of Plaintiff's treating providers, the non-examining opinions do 18 not constitute substantial evidence that would support her determination to reject all of the 19 treating opinions. 20 When looking at the record as whole, there is ample support and consistency between the 21 22 record and the three opinions in question. "[I]n reviewing the ALJ's decision to reject the 23 opinion of a treating or examining source, a court may look to other evidence contained within 24 the record, such as medical reports, contrary opinions by examining sources, and the claimant's 25 own testimony." Swanson, 274 F.Supp.3d at 938 (citing Lester, 81. F.3d at 831). The more a 26 medical source presents relevant evidence to support an opinion, the more weight will be given 27 28 to that opinion and generally, the more consistent an opinion is with the record as a whole, the 15 3 1 more weight will be given to the opinion. 20 C.F.R. § 404.1527(c)(3)-(4). Each opinion is fully 2 consistent with each other, and each are signed off treating physician Dr. DeBerard. T 1093, 3 1095, 1098. 4 5 These opinions are consistent with Plaintiff's initial rehabilitation assessment, that noted 6 Plaintiff continued to have the following functional impairments: fatigue, decreased functional 7 mobility, decreased fine motor control and coordination, cognition impairment, aphasia, and 8 impaired self-cares. T 362. Dr. Smith's opinion is consistent with Dr. DeBerard's treatment 9 notes, that document Plaintiff being emotional liable and angering easily. T 589. These opinions 10 11 are consistent with ED notes, that indicated Plaintiff was suffering from severe pain in the right 12 eye; providers also noted Plaintiff was extremely unstable on his feet and could not maintain his 13 balance. T 576. These opinions are consistent with Ms. Verhoef's treatment notes, as she 14 noticed that upon assessment in February 2016, Plaintiff had significant difficulty with retaining 15 certain information. T 839. Ms. Verhoef also noted that Plaintiff had declined in word finding 16 17 and sound sequencing. During a subsequent session dated February 29, 2016, Ms. Verhoef noted 18 that Plaintiff's vision and communication difficulties were a barrier for returning to work. T 19 842. 20 These opinions are consistent with treating optometrist Dr. Kompkoff's treatment notes, 21 22 as Dr. Kompkoff indicated Plaintiff's visions was worsening and that he was having different 23 acuity in each eye. T 916. Furthermore, these opinions are consistent with Dr. Smith's course of 24 treatment, which has transitioned from treatment for his PTSD to treatment for his 25 accommodation of disabilities and acceptance of his functional limitations. T 1091. These 26 opinions were consistent with treating physician Dr. Emili's treatment notes, as Dr. Emili 27 28 indicated Plaintiff was suffering from significant neurologic deficits from an intracerebral 16 3 1 hemorrhage; that Plaintiff's thought process was still slow to return; and that he was disabled as 2 he could no longer perform his job. T 940. Finally, these opinions were consistent with Dr. 3 DeBerard's treatment notes, as Dr. DeBerard noted the following: Plaintiff suffered from 4 5 continuing lethargy and decreased mental function following a large left temporary hemorrhage 6 in July 2015; he had not regained right peripheral vision; he fatigued easily and could be up and 7 around for only a few hours without stopping to rest; and he had tried to return to work but was 8 unable to do so. T 958. 9 Thus, an objective review of the record shows these opinions to be fully consistent with 10 11 the record. Furthermore, the ALJ erred by not considering any other factors as required by the 12 regulations. Ghanim, 763 F.3d at 1161 ("Even if a treating physician's opinion is contradicted, 13 the ALJ may not simply disregard it. The ALJ is required to consider the factors set out in 20 14 C.F.R. § 404.1527(c)(2)-(6) in determining how much weight to afford the treating physician's 15 medical opinion."). In sum, the ALJ's reasons for rejecting Dr. DeBerard, Dr. Smith, and Ms. 16 17 Verhoef's opinion was erroneous and unsupported by substantial evidence. T 20-22. Remand 18 for calculation of benefits is fully warranted in this regard. 19 2. The ALJ failed to weigh, mention, or discuss, a certain opinion from treating 20 optometrist Dr. Kompkoff. 21 While the ALJ discussed, mentioned, and weighed an opinion from treating optometrist 22 Dr. Kompkoff dated December 20, 2016, she completely failed to weigh, mention, or discuss a 23 prior opinion from Dr. Kompkoff dated June 20, 2016. T 22, 915. Not only was this contrary to 24 the relevant rules, regulations, and relevant case law, but was also highly prejudicial to Plaintiff's 25 26 claim for disability. As such, this failure to weigh this opinion from Dr. Kompkoff fully 27 warrants remand for further administrative proceedings. 28 17 3 1 The regulations are unambiguous in this matter. "In determining whether you are 2 disabled, we will always consider the medical opinions in your case record with the rest of the 3 relevant evidence we receive." 20 C.F.R. § 404.1527(b). "Regardless of its source, we will 4 5 evaluate every medical opinion we receive." 20 C.F.R. § 404.1527(c). Administrative Law 6 Judges cannot ignore the opinion of a medical expert and although the ALJ is not bound by a 7 given medical opinion, he must still explain the weight given to each of those opinions in his 8 decision. 20 C.F.R. § 404.1527; Social Security Ruling 96-6p, 1996 WL 374180 at *1; Social 9 Security Ruling 96-5p, 1996 WL 374183 at *1. The ALJ's failure to weigh Dr. Kompkoff's 10 11 letter was clearly contrary to the codified regulations and the agency's own rulings. 12 The case law is also clear on this issue: where an ALJ does not explicitly reject a medical 13 opinion or set forth specific, legitimate reasons for crediting one medical opinion over another, 14 she errs. Garrison, 759 F.3d at 1012 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 15 1996). "In other words, an ALJ errs when he rejects a medical opinion or assigns it little weight 16 17 while doing nothing more than ignoring it, asserting without explanation that another medical 18 opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a 19 substantive basis for his conclusion." (emphasis added). Id. The ALJ's failure to weigh Dr. 20 Kompkoff's letter was clearly contrary to the codified regulations; contrary to the agency's own 21 22 rulings; and contrary to the Ninth Circuit precedent. 23 On June 20, 2016, Dr. Kompkoff issued a statement opining on Plaintiff's impairments 24 and what limitations stemmed forth. T 915. The regulations define a medical opinion as 25 "…statements from acceptable medical sources that reflect judgements about the nature and 26 severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can 27 28 still do despite the impairment(s), and your physical and mental restrictions." 20 C.F.R. § 18 3 1 404.1527(a)(1). Dr. Kompkoff opined that Plaintiff suffered from a peripheral vision 2 impairment in his lower right visual filed and double vision hindering his ability to perform. T 3 915. Dr. Kompkoff also opined Plaintiff had a visual processing and visual motor disorder that 4 5 reduced reaction times and visual memory, which made it difficult for him to concentrate and 6 adapt. T 915. Thus, under the regulations, Dr. Kompkoff's letter in June 20, 2016, was a 7 medical opinion the ALJ was bound to consider, weigh, and discuss, and as such, her failure to 8 do so was error. 9 The ALJ's error is not harmless nor inconsequential to these proceedings. This Circuit 10 11 has expressed the view that failure to consider evidence from a treating physician requires 12 remand for the agency to properly consider all the evidence. Lingenfelter v. Astrue, 504 F. 3d 13 1098. 1045 (9th Cir. 2007). Furthermore, failure to consider opinion evidence undermines an 14 ALJ's weight determination for other opinions, as comparing and contrasting opinions is an 15 important factor when weighing medical opinion evidence. See, e.g., Social Security Ruling 06- 16 17 03p, 2006 WL 2329939 at *4 (noting that although this regulation refers to opinions from 18 "other" medical sources, it shows that "SSA's regulations include a provision that requires 19 adjudicators to consider any other factors brought to our attention, or of which we are aware, 20 which tend to support or contradict a medical opinion" and "the Act requires us to consider all of 21 22 the available evidence in the individual's case record in every case."). One of the reasons the 23 ALJ provides for rejecting Dr. Kompkoff's December 2016 opinion was because it did not 24 provide work-related limitations. T 22. However, the June 2016 opinion does identify specific 25 functions that Plaintiff's impairments affect and is specific enough to support a determination of 26 disability. T 915. Ultimately, this opinion shows Plaintiff's vision impairments preclude him 27 28 being to perform normal, routine, work tasks and that his cognitive difficulties cause limitations 19 3 1 in concentration and adaptation. These findings are contrary to the ALJ's RFC and ultimate 2 determination of disability. They also support the opinions that the ALJ rejected, and thus, 3 failure to weigh, mention, or discuss this opinion was harmful in that regards. Summarily, the 4 5 ALJ's error cannot be construed as harmless. The ALJ's error fully warrants remand for further 6 administrative proceedings. 7 3. The ALJ failed to reconcile her "significant" weight determination with certain 8 portions of Dr. Lebeau's testimony. 9 Despite affording non-examining physician Dr. Lebeau's testimony "significant" weight, 10 the ALJ failed to discuss certain aspects of his testimony that clearly contradict several aspects of 11 her decision. T 23. The ALJ also failed to incorporate certain limitations Dr. Lebeau opined to 12 within the RFC. Furthermore, Dr. Lebeau's opinion is not as inconsistent with the other medical 13 opinions as the ALJ contends, as there are certain aspects of Dr. Lebeau's testimony that the ALJ 14 15 completely ignores and fails to discuss in her decision. T 21, 23. This error fully warrants 16 remand for further administrative proceedings. 17 It is legal error for the ALJ to create an RFC assessment that conflicts with a portion of a 18 medical source statement which was accorded great weight without explaining the inconsistency. 19 20 See Social Security Ruling 96-8p, 1996 WL 374184 at *7. The ALJ cannot selectively focus on 21 aspect of a medical report which suggest non-disability without providing clear, convincing, 22 specific, and legitimate reasons for rejecting the portions of the medical opinions non focused on. 23 See Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (The ALJ "cannot reach a 24 conclusion first, and then attempt to justify it by ignoring competent evidence in the record that 25 26 suggests an opposite result."; see also Edlund v. Massanari, 235 F.3d 1152, 1159 (9th Cir. 2001) 27 ("We nonetheless believe that the ALJ selectively focused on aspects of Dr. Bremer's 1994 28 20 3 1 report which tend to suggest non-disability, and apparent failed to realize that under law, he 2 conclusion required clear and convincing reasons."). 3 Specifically, Dr. Lebeau opined Plaintiff's heart disease, kidney disease, and brain 4 5 disease was enough to make a combined listing. T 53. He also opined Plaintiff was not going to 6 get better, and that he had enough wrong with him that in the workplace, it is going to be clumsy, 7 difficult, and possibly dangerous. T 54. Furthermore, Dr. Lebeau opined Plaintiff would 8 probably have fatigue the rest of his left, with fatigue being tiredness that does not improve with 9 sleep and Plaintiff would have difficulty sustained an eight-hour workday. T 61-62. In addition, 10 11 Dr. Lebeau indicated Plaintiff's impairments were work preclusive, as he stated "I don't think an 12 employer would actually, in all honesty judge, put up with the difficulty that this gentleman has." 13 T 59. Contrary to the ALJ's position, this was Dr. Lebeau opining that Plaintiff's medical 14 impairments would preclude him from working, as this statement was proceeded by a discussion 15 of Plaintiff's cognitive defects. Furthermore, Dr. Lebeau opined that Dr. Valette was a 16 17 psychologist and was not able to give full consideration to some of the brain damage effects of a 18 stroke like this, which undermines the ALJ's reliance on Dr. Valette's opinion, especially when 19 she used it to reject the majority of opinion evidence regarding Plaintiff's cognitive limitations. 20 T 20-22, 58. 21 22 The ALJ's failure to discuss this testimony is harmful to Plaintiff's claim because it 23 places significant emphasis on Plaintiff's inability to work due to his cognitive defects. This 24 testimony also shows that Dr. Valette's opinion, which the ALJ relied on heavily to reject a 25 range of evidence favorable to Plaintiff's claim, was not positioned to properly consider 26 Plaintiff's cognitive impairments. Furthermore, the ALJ used Dr. Lebeau's opinion to reject Dr. 27 28 DeBerard's opinion. T 21. When looking at both opinions, they actually are not inconsistent at 21 3 1 all. Specifically, Dr. Lebeau even expressly agrees with Dr. Debrard, stating "And I think that 2 he probably has, as this doctor said, and I really agree with the doctor [DeBerard], reached a 3 level where further improvement is apparently going to be unlikely." T 59. This statement was 4 5 in regards to Plaintiff's physical/speech impairments. T 59. 6 Thus, a reviewing Court would be more apt to conclude that Dr. Lebeau's testimony 7 supports the treating opinions, and opines that Plaintiff's limitations caused impairments so 8 severe as to preclude him from working. Despite this, the ALJ failed to mention any of this 9 dispositive testimony from Dr. Lebeau and falsely relied on it to reject several different portions 10 11 of evidence favorable to Plaintiff. Remand for further administrative proceedings is fully 12 warranted in this regard. 13 CONCLUSION 14 For the foregoing reasons, it is respectfully requested that the Commissioner's decision 15 be reversed, and that this matter be remanded for a calculation of benefits. In the alternative, it is 16 17 respectfully requested that the ALJ's decision be vacated, and this matter be remanded for 18 further proceedings, including a de novo hearing and new decision. 19 Respectfully submitted, 20 /s/Edward A. Wicklund 21 Edward A. Wicklund, Esq. 22 Attorney for Plaintiff 23 24 25 26 27 28 22 3 1 CERTIFICATE OF SERVICE 2 This is to certify that I have this day served counsel for the Defendant with Plaintiff's 3 Memorandum of Law by electronically filing the foregoing with the Clerk of the Court by using the CM/ECF system which will send electronic notification of such filing to: 4 5 Bryan Schroder Ryan Lu 6 This 6th day of June, 2018. 7 8 /s/ Edward A. Wicklund 9 Edward A. Wicklund, Esq. Attorney for Plaintiff 10 Olinsky Law Group 11 300 South State Street, Suite 420 Syracuse, New York 13202 12 Telephone: (315) 701-5780 Fax: (315) 701-5781 13 twicklund@windisability.com 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 3

MOTION Reversal of agency decision and remand for calculation of benefits or, alternatively, further administrative proceedings with Memorandum in support thereof and Certificate of Service by Marcus Loyd King.

1 Edward A. Wicklund, Esq. Attorney for Plaintiff 2 Pro hoc vice 3 Olinsky Law Group 300 South State Street, Suite 420 4 Syracuse, New York 13202 5 Telephone: (315) 701-5780 Fax: (315) 701-5781 6 twicklund@windisability.com 7 Of Attorney for Plaintiff 8 9 UNITED STATES DISTRICT COURT DISTRICT OF ALASKA 10 11 MARCUS LOYD KING, 12 Plaintiff, CIVIL ACTION NO. 3:18-cv-00007 (TMB) 13 -v- 14 NANCY A. BERRYHILL, 15 ACTING COMMISSIONER OF SOCIAL SECURITY, 16 Defendant. 17 ----------------------------------------------------------- 18 PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT 19 OF A SOCIAL SECURITY APPEAL 20 STATEMENT OF ISSUES 21 1. The ALJ erred when she rejected the opinions of treating physician Dr. DeBerard, 22 treating psychologist Dr. Smith, and treating speech pathologist Ms. Verhoef; 2. The ALJ failed to weigh, mention, or discuss, a certain opinion from treating optometrist 23 Dr. Kompkoff; and 3. The ALJ failed to reconcile her "significant" weight determination with certain portions 24 of Dr. Lebeau's testimony. 25 STATEMENT OF FACTS 26 A. Procedural Status 27 28 1 3 1 On May 13, 2016, Marcus Loyd King ("Plaintiff") filed for Title II disability insurance 2 benefits alleging disability beginning February 16, 2016, due to a stroke, chronic kidney disease 3 stage three, congestive heart failure, double vision, and speech issues. Administrative Record 4 5 ("T") at 91, 245. Plaintiff's claim was initially denied on July 15, 2015. T 91. Plaintiff 6 subsequently request a hearing, which was held on May 23, 2017, before Administrative Law 7 Judge Cecilia LaCara ("ALJ"). T 32-99. On August 7, 2017, the ALJ issued an unfavorable 8 decision denying Plaintiff benefits. T 15-26. On November 8, 2017, the Appeals Council denied 9 Plaintiff's request for review, leaving the ALJ decision as the final agency determination. T 1. 10 11 Plaintiff timely filed this cause of action currently before the Court, which has jurisdiction under 12 42 U.S.C. § 405(g). 13 At Step 1, the ALJ determined Plaintiff met the insured status requirements of the Social 14 Security Act through December 31, 2020. T 17. The ALJ also determined Plaintiff had not 15 engaged in substantial gainful activity since February 16, 2016, the alleged onset date. T 17. At 16 17 Step 2, the ALJ determined Plaintiff had the following severe impairments: malignant 18 hypertension; pulmonary hypertension; cardiovascular disease; chronic kidney disease; and 19 neurocognitive disorder status-post cerebral vascular accident. T 17. At Step 3, the ALJ 20 determined Plaintiff's impairments did not meet or equal a Listing. T 18. The ALJ also 21 22 determined Plaintiff had mild limitations in understanding, remembering, or applying 23 information; moderate limitations with interacting with others; no limitations with concentrating, 24 persisting, or maintaining pace; and no limitations in adapting or managing oneself. T 18-19. 25 Thus, the ALJ determined Plaintiff could perform medium work: 26 The claimant can stand or walk a total of 6 hours in an 8-hour workday, and sit for 27 6 hours in an 8-hour workday with normal breaks. The claimant can frequently 28 climb ramps or stairs. The claimant can frequently balance, stoop, kneel, crouch, 2 3 1 and crawl. The claimant cannot climb ladders, ropes, or scaffolds. The claimant must avoid all exposure to unprotected heights. The claimant must avoid 2 concentrated exposure to hazardous machinery. The claimant is limited to 3 occupations that do not require frequent verbal or telephone communication. The claimant is limited to occupations that only require frequent depth perception and 4 right peripheral acuity. The claimant is limited to only occasional interaction with 5 the general public, and only superficial interaction with coworkers. 6 T 19. At Step 4, based on Vocational Expert ("VE") testimony, the ALJ determined Plaintiff 7 was unable to work past relevant work. T 24. At Step5, based on VE testimony, the ALJ 8 determined Plaintiff could work other jobs in the national economy including Janitorial work 9 (DOT#381.687-018), Cleaner II (DOT#919.687-014), and Laundry Worker I (DOT#361.684- 10 11 014). T 25. Ultimately, the ALJ determined Plaintiff was not disabled. T 25-26. 12 B. Medical Record 13 On July 16, 2015, treating physician Terry L. Lester, M.D., completed a rehabilitation 14 admission evaluation. T 361. Dr. Lester noted that on July 8, 2015, Plaintiff at presented to the 15 emergency department after his father had found him confused. T 361. Examining notes 16 17 indicated Plaintiff had systolic blood pressured and a CT scan revealed a left temporoparietal 18 inter-cerebral hemorrhage due to malignant hypertension. T 361-62. Dr. Lester noted Plaintiff 19 continued to have the following functional impairments: fatigue, decreased functional mobility, 20 decreased fine motor control and coordination, cognition impairment, aphasia, and impaired self- 21 cares. T 362. Upon exam, Dr. Lester noted Plaintiff verbal interaction skills were decreased 22 23 with slowed speech and required prompting. T 365-66. Diagnostic testing revealed pulmonary 24 edema, mildly decreased ejection fraction ("EF") rate of 40-45 percent, left ventricular diastolic 25 dysfunction, and a left-sided parenchymal hemorrhage. T 366. 26 Between July 20, 2015, and November 20, 2015, Plaintiff participated with inpatient 27 rehabilitation therapy, with speech pathologist Anne L. Verhoef, who documented improvements 28 3 3 1 in his functional capacity. T 419, 424-505. Providers indicated although partaking in 2-3 2 sessions per week since the past July, he still struggled with language expression and information 3 retention. T 419. 4 5 In February 5, 2016, Plaintiff treated with Ms. Verhoef for language therapy. T 560. By 6 this time, Plaintiff had consistently engaged in therapy with Ms. Verhoef and had also returned 7 to work. T 560. Plaintiff reported problems at work in terms of retaining information and 8 processing with the number of sequences involved in his job. T 560. Ms. Verhoef indicated 9 Plaintiff was able to do a lot of tasks but could not verbalize the sequence in the tasks. T 560. 10 11 Plaintiff expressed worries that he would not be able to verbalize adequately enough to perform 12 the functions of his job. T 560. 13 On February 17, 2016 Plaintiff treated with Scott DeBerard, D.O., for treatment of his 14 headaches and vision loss. T 589. Plaintiff reported that over the past month, he had pain in his 15 right temple and was not able to see out of his right eye for about a minute. T 589. Plaintiff also 16 17 reported that he had one episode where he could not recall where he was or why he was there 18 and had to call his mother to find out. T 589. Dr. DeBerard noted that Plaintiff had been sent 19 home from work due to being emotional liable and angering easily, yet was not interested in 20 treatment for this. T 589. 21 22 On February 20, 2016, Plaintiff reported to the Emergency Department ("ED") 23 complaining of increasing right-sided headaches with periods of difficulty speaking, increasing 24 memory issues and markedly dysarthric speech. T 561. ED providers noted to be quite ataxic 25 and nearly fell several times. T 561. Discharge notes dated February 22, 2016, indicated that 26 Plaintiff was suffering from severe pain in the right eye. T 576. Providers also noted Plaintiff 27 28 was extremely unstable on his feet and could not maintain his balance. T 576. Plaintiff also 4 3 1 reported several episodes of complete loss of vision that lasted between five to ten minutes each. 2 T 576. 3 On February 24, 2016, Plaintiff treated with Dr. DeBerard for treatment of his headaches. 4 5 T 587. Plaintiff reported that his headaches developed after he started driving to work, which 6 was mentally tasking for him and precipitated his symptoms. T 588. Dr. DeBerard 7 recommended Plaintiff not return to work until his symptoms were completely resolved. T 588. 8 Dr. DeBerard indicated that he suspected Plaintiff had returned a bit early in his efforts to return 9 Plaintiff to gainful employment. T 588. 10 11 On February 26, 2016, Plaintiff treated with Ms. Verhoef for speech therapy. T 838. 12 Plaintiff reported he had stopped functioning at work and could not continue working or driving 13 due to vision problems. T 838. Plaintiff also reported more communication and cognitive 14 issues. T 838. Ms. Verhoef noticed that upon assessment, Plaintiff had significant difficulty 15 with retaining certain information. T 839. Ms. Verhoef also noted that Plaintiff had a decline in 16 17 word finding and sound sequencing. T 839. During a subsequent session dated February 29, 18 2016, Ms. Verhoef noted that Plaintiff's vision and communication difficulties were a barrier for 19 returning to work. T 842. 20 In June 2016, Plaintiff began optometrist therapy with Laura Kompkoff, O.D. T 916-28. 21 22 Plaintiff engaged in a series of tests such as "Marsden Ball with Hart Chart," and "Color Cubes," 23 designed to focus and retrain Plaintiff's visual acuity. T 919, 923. On June 28, 2016, Dr. 24 Kompkoff indicated Plaintiff's vision was worsening and that he was having different acuity in 25 each eye. T 916. Dr. Kompkoff noted Plaintiff was aware that he switched between eyes and 26 wished he could use both eyes at the same time. T 916. 27 28 5 3 1 On July 16, 2016, Plaintiff treated with Dr. DeBerard for a physical. T 952. Dr. 2 DeBerard indicated Plaintiff was medically retired and needed his disability paperwork 3 completed. T 952. Dr. DeBerard also noted Plaintiff continued to have significantly decreased 4 5 executive functions with expressive aphasia, and although some days were better than others, he 6 was not improving. T 952. 7 On September 30, 2016, Plaintiff treated with Dr. DeBerard for a disability evaluation. T 8 958. Dr. DeBerard noted the following: Plaintiff suffered from continuing lethargy and 9 decreased mental function following a large left temporary hemorrhage in July 2015; he had not 10 11 regained right peripheral vision; he fatigued easily and could be up and around for only a few 12 hours without stopping to rest; and he had tried to return to work but was unable to do so. T 958. 13 Dr. DeBerard also noted Plaintiff continued therapy with a speech pathologist and a 14 psychologist. T 958. 15 On December 1, 2016, Plaintiff treated with Stefano Emili, M.D., for an evaluation of his 16 17 hypertension. T 940. Dr. Emili indicated Plaintiff was suffering from significant neurologic 18 deficits from an intracerebral hemorrhage. T 942. Dr. Emili indicated Plaintiff's thought 19 process was still slow to return and that he was disabled as he could no longer perform his job. T 20 940. 21 22 On February 11, 2017, Plaintiff treated with Dr. DeBerard for another disability 23 evaluation. T 1078. Dr. DeBerard noted that Plaintiff had continued lethargy and decreased 24 mental functioning; he had not regained right peripheral vision and has actually been diagnosed 25 as totally blind in his right eye; he fatigued easily; and he was struggling with anxiety and 26 insomnia. T 1078. Notably, Dr. DeBerard indicated further improvement in Plaintiff's condition 27 28 was not likely. T 1079. 6 3 1 In April 2017, Plaintiff's treating psychologist Bruce Smith, Ph. D., issued a letter stating 2 he had treated with Plaintiff on a consistent basis since 2014. T 1091. Plaintiff had been treated 3 for PTSD yet since his stroke in July 2015, the focus of Dr. Smith's treatment had been on 4 5 accommodation of his disabilities and acceptance of his functional limitations. T 1091. 6 C. Opinion Evidence 7 On June 20, 2016, treating optometrist Dr. Kompkoff issued a statement, stating Plaintiff 8 suffered from a peripheral vision impairment in his lower right visual filed and double vision 9 hindering his ability to perform. T 915. Dr. Kompkoff also opined Plaintiff had a visual 10 11 processing and visual motor disorder that reduced reaction times and visual memory, which 12 made it difficult for him to concentrate and adapt. T 915. 13 On September 30, 2016, treating physician Dr. DeBerard issued a medical source 14 statement on Plaintiff's physical functionality. T 1093. Dr. DeBerard opined Plaintiff suffered 15 from a lack of any type of peripheral vision in his right eye; decreased physical capacity; and 16 17 impaired communication skills due to a large stroke in July 2015. T 1093. He opined Plaintiff 18 would miss more than five days of work per month due to his impairments. T 1093. Dr. 19 DeBerard also opined Plaintiff had the following limitations: he could only walk one-third of an 20 eight-hour workday; he could frequently lift/carry one to give pounds during the eight-hour 21 workday and could occasionally lift/carry six to 10 pounds during the same day, yet never 22 23 anymore; due to decreased vision and coordination, he could never use his hands for fine 24 manipulation and only use his hands for gross manipulation occasionally; due to fatigue, he 25 would need to lie down between one to two hours during the eight-hour workday; and he would 26 need to take unscheduled breaks during an eight-hour workday beyond the normal amount. T 27 28 1093-94. 7 3 1 On October 3, 2016, treating psychologist Dr. Smith completed a medical source 2 statement on Plaintiff's mental limitations, which was cosigned by Dr. DeBerard. T 1095-97. 3 Dr. Smith opined Plaintiff had marked limitations in understanding and memory; marked 4 5 limitations in sustained concentration and persistence; marked limitations in social interaction; 6 and marked limitations in adaptation. T 1095-97. Dr. Smith explained Plaintiff would 7 experience increased pressured due to current frustration over his cognitive limitations and 8 ongoing anger would lead to decompensation. T 1095. Dr. Smith opined Plaintiff would be off 9 task during the eight-hour workday 60 percent of the time due to his impairments. T 1095. 10 11 On October 3, 2016, treating speech pathologist Verhoef completed a medical source 12 statement on Plaintiff's cognitive limitations, cosigned by Dr. DeBerard. T 1098-1100. Ms. 13 Verhoef opined Plaintiff had moderate to marked limitations in sustained concentration and 14 persistence; and marked limitations in adaptation. T 1099-1100. Ms. Verhoef opined Plaintiff 15 would miss more than two days per month due to his disabilities. T 1098. She opined Plaintiff's 16 17 increased stress would result in decreased communication skills and that he exhibits increased 18 word retrieval impairments when under pressure to communicate quickly. T 1098. Ms. Verhoef 19 also opined Plaintiff would be off task 40 to 50 percent of the workday due to his condition. T 20 1098. 21 22 On December 20, 2016, Dr. Kompkoff issued a statement on Plaintiff's eyesight and how 23 it related to this functional capacity. T 1071. Dr. Kompkoff noted Plaintiff suffered from 24 diplopia (double vision) and peripheral vision loss in both eyes. T 1071. Dr. Kompkoff opined 25 Plaintiff was unable to drive and perform daily tasks on his own safely. T 1071. 26 D. Hearing Testimony 27 28 Plaintiff testified to the following: 8 3 1 He could not return to work because he could not say the right words and process what he 2 was doing. T 64. He would make mistakes. T 64. He has no vision in his right eye. T 64. He 3 did not drive. T 64. He did not do yardwork, grocery shop, vacuum, do laundry, mop or sweep, 4 5 cook because he could not see well enough to do so. T 64-65. He went to his children's hockey 6 games but did not coach, skate or play with them. T 66. His parents drove him to the games. 7 66. He used to engage in outdoor activities but could not since his stroke. T 67. He could not 8 see the puck or the jersey numbers at the hockey game. T 57. He had problems with fatigue; he 9 took naps every day ranging between three to four hours; he moved back into his parent's house 10 11 after his stroke; and he needed to be reminded to take his pills every day. T 69-70. He had 12 problems with depth perception and handling items, like a screwdriver. T 71-72. He had 13 restrictions on his driver license. T 74. He made one camping trip the year prior with his entire 14 family. T 80. 15 Non-examining medical consultant Collette Valette, Ph. D., testified to the following: 16 17 Plaintiff did not meet or equal a listing. T 42. Plaintiff had a mild impairment in 18 executive functioning. T 42. Plaintiff had mild limitations in understanding, remembering, or 19 applying information; moderate limitations in interacting with others; mild to marked limitations 20 in speech and language; no limitations in concentration, persistence, or pace; and no limitations 21 22 in adaptation. T 43. He would be limited with speech. T 44. From a psychological point of 23 view, a cognitive impairment from trauma generally can be rehabilitated within two years yet 24 after that point, "they are what they are." T 46-47. 25 Non-examining medical consultant Jack Lebeau, M.D., testified to the following: 26 Plaintiff's heart disease, kidney disease, and brain disease was enough to make a 27 28 combined listing. T 53. Plaintiff is not going to get better, and that he has enough wrong with 9 3 1 him that in the workplace, it is going to be clumsy, difficult, and possibly dangerous. T 54. The 2 listings are often so, not harsh, but severe. T 54. Plaintiff's stroke affected the optic track. T 55. 3 He could life ten pounds continuously, 11 to 20 pounds frequently and 50 pounds occasionally. 4 5 T 55. He could sit for two hours at one time and seven hours during an eight-hour workday; 6 stand for an hour at one time and four-hours during the course of the workday; and walk half an 7 hour at one time and two hours during the course of the workday. T 56. He had no limitations 8 with his hands and he could perform postural activities frequently. T 56. He could not work in a 9 range of different environments. T 56-57. Dr. Valette was a psychologist and was not able to 10 11 give full consideration to some of the brain damage effects of a stroke like this. T 58. "I really 12 agree with the doctor, reached a level where further improvement is apparently going to be 13 unlikely." T 59. "I don't think an employer would actually, in all honesty judge, put up with the 14 difficulty that this gentleman has." T 59. Once Plaintiff had this big stroke, he would probably 15 have fatigue the rest of his left, with fatigue being tiredness that does not improve with sleep. T 16 17 61. Plaintiff would have difficulty sustained an eight-hour workday. T 62. 18 STATEMENT OF ISSUES 19 1. The ALJ erred when she rejected the opinions of treating physician Dr. DeBerard, 20 treating psychologist Dr. Smith, and treating speech pathologist Ms. Verhoef. 21 Treating physician Dr. DeBerard, treating psychologist Dr. Smith, and treating speech 22 pathologist Ms. Verhoef each issued medical source statements opining on Plaintiff's functional 23 capacity. T 1093, 1095, 1098. Despite each having a long treating relationship with Plaintiff, 24 the ALJ rejected the dispositive portions of each opinion. T 21-22, 1093, 1095, 1098. However, 25 26 the ALJ's reasons for rejecting these opinions were cursory, disingenuous, and contrary to the 27 established legal standard. T 21-22. Because each opinion opined to some form of limitation 28 10 3 1 that was potentially work-preclusive, the ALJ's determinations was highly prejudicial to 2 Plaintiff's claim and reversal of the final determination of disability is fully warranted. 3 "In…disability benefits cases…physicians may render medical, clinical opinions, or they 4 5 may render opinion on the ultimately issue of disability-the claimant's ability to perform work." 6 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted). "In conjunction with the 7 relevant regulations, we have…developed standards that guide our analysis of an ALJ's 8 weighing of medical evidence." Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 9 2008). "Specifically, we 'distinguish among the opinions of three type of physicians: (1) those 10 11 who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 12 (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining 13 physicians).'" Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Lester v. Chater, 14 81 F.3d 821, 830 (9th Cir. 1995)). As a general rule, more weight should be given to the opinion 15 of a treating source than to the opinion of doctors who do not treat the claimant. Garrison, 759 16 17 F.3d 995 at 1012 (citing cases). 18 A treating opinion is entitled to "controlling weight" if it is (i) "well-supported by 19 medically acceptable clinical and laboratory diagnostic techniques" and if it is (ii) "not 20 inconsistent with the other substantial evidence in the case." 20 C.F.R. § 404.1527(c). Under 21 22 Ninth Circuit precedent, if a treating opinion is not afforded controlling weight, nor contradicted 23 by another doctor's opinion, the ALJ must provide "clear and convincing" reasons for rejecting 24 the uncontradicted opinion. Lester, 81 F.3d at 830. "Even if a treating physician's opinion is 25 contradicted, the ALJ may not simply disregard it. The ALJ is required to consider the factors set 26 out in 20 C.F.R. § 404.1527(c)(2)-(6) in determining how much weight to afford the treating 27 28 physician's medical opinion." Ghanim, 763 F.3d at 1161 (citing Orn v. Astrue, 495 F.3d 625, 11 3 1 631 (9th Cir. 2007). Remand for calculation of benefits is fully warranted when an ALJ 2 erroneously rejects the opinion of a treating or examining physician. See Jamieson v. Astrue, 3 341 Fed. Appx. 283, 285 (9th Cir. 2009)(holding that where the commissioner fails to provide 4 5 adequate reasons for rejecting the opinion of a treating or examining physician, "we credit that 6 opinion as a matter of law," and if it is clear from the administrative record that the ALJ would 7 be required to find the claimant disabled on remand, the court typically remands for calculation 8 of benefits) (internal citations and quotations omitted)). 9 For each favorable portion of these opinions in question, the ALJ provides the same 10 11 cursory explanation for rejecting them: they are inconsistent with the testimony from a non- 12 examining physician and/or they are inconsistent with Plaintiff's activities, including a camping 13 trip and a purported ability to drive. T 20-22. However, these reasons are insufficient to reject 14 three treating opinions. In terms of daily activities, the ALJ does not specifically explain how 15 these contradict or show inconsistencies with the treating opinions. T 20-22. Indeed, the Ninth 16 17 Circuit has cautioned how ALJ's should use evidence relating to daily activities when weighing 18 opinion evidence. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) ("A claimant need 19 not be completely incapacitated to receive benefits…Ghanim's limited daily activities are not in 20 tension with the opinions of his treating providers."); Trevizo v. Berryhill, 871 F.3d 664, 682 (9th 21 22 Cir. 2017) ("Moreover, many home activities are not easily transferable to what may be the more 23 grueling environment of the work place, where it might be impossible to periodically rest or take 24 medication.") (internal citations, quotations, and alterations omitted). The ALJ merely states 25 these daily activities are inconsistent but without more specification, a reviewing Court is left in 26 complete speculation as to how Plaintiff's limited activities contradict three different treating 27 28 opinions. 12 3 1 Additionally, the ALJ wrongfully described the nature, frequency, and intensity of 2 Plaintiff's daily activities. T 20-22. This was erroneous. See Schow v. Astrue, 272 Fed.Appx. 3 647, 652 (9th Cir. 2008) ("Finally, the ALJ overstated Schow's ability to carry on daily 4 5 activities."); Franz v. Colvin, 91 F.Supp.3d 1200, 1215 (D. Or. 2015) (holding the ALJ 6 mischaracterized the record and thus erred when he found a treating physician's opinion to be 7 inconsistent with Plaintiff's daily activities to reject certain limitations within the opinion). 8 Here, the ALJ grossly mischaracterizes Plaintiff's activities, which include being "able to drive 9 independently down to Kenai and Homer in the winter, take his children to hockey games, help a 10 11 friend move a 4-wheeling, and go camping." T 20. This analysis is exaggerated and 12 disingenuous, specifically with the ALJ's continued insistence that Plaintiff was able to 13 drive…which was routinely utilized in her decision to reject favorable evidence for Plaintiff's 14 claim. T 20-23. 15 While there was a period where Plaintiff was driving after his stroke in July 2015, he 16 17 quickly abated such an activity when his vision started to worsen and stopped completely 18 thereafter. In February 2016, Plaintiff reported pain in his right temple and episodes where he 19 was not able to see out of his right eye. T 589. Plaintiff reported that his headaches developed 20 after he started driving to work, which was mentally tasking for him and precipitated his 21 22 symptoms. T 588. On February 26, 2016, Plaintiff reported he had stopped functioning at work 23 and could not continue working or driving due to vision problems. T 838. There is nothing in 24 the record that indicates Plaintiff drove at all after that date. During the hearing, Plaintiff 25 testified he did not drive and that his parents drove him to his children's hockey games. T 64. 26 He also testified that he had restrictions placed on his driver's license. T 74. In terms of 27 28 camping, Plaintiff only testified he went one time with his entire family in 2016, and was not 13 3 1 something done frequently. T 80. In fact, Plaintiff testified that he no longer engaged in outdoor 2 activities since his stroke. T 67. An objective review of the record shows the ALJ to grossly 3 overstate the extent of Plaintiff's daily activities to reject favorable evidence, specifically opinion 4 5 evidence from his treating providers. 6 Finally, the ALJ seems to think that Plaintiff's effort to support his sons and spend time 7 with them somehow contradicts the opinions in question. T 20. However, this notion is not a 8 sufficient reason to reject all three of Plaintiff's treating providers. See Binford v. Colvin, 113 9 F.Supp.3d 1067, 1073 (W.D. Wash. 2015) ("Lastly, Plaintiff's ability to maintain a relationship 10 11 with his son and father, and his ability to sometimes interact appropriately with doctors during 12 one-time examinations, are not indicative of Plaintiff's ability to maintain competitive work 13 because, as the Commissioner's own regulations caution, ability to function in a work 14 environment should be determined based on an individual's ability to perform tasks in other 15 settings that are less demanding, highly structured, and more supportive. 20 C.F.R. Pt. 404, 16 17 subpart P, Appendix 1, § 12.00 C(3). See also Garrison, 759 F.3d at 1016). Considering all of 18 this, the ALJ's analysis concerning Plaintiff's activities is vague, conclusory, and fails to show 19 any inconsistence with the three opinion's under issue. Additionally, the ALJ mischaracterized 20 Plaintiff's activities in a prejudicial manner and do not reasonably support her determination to 21 22 reject certain opinion evidence. The ALJ erred in this regard. 23 The other reason the ALJ provides for rejecting Dr. DeBerard, Dr. Smith, and Ms. 24 Verhoef's opinion was because they were inconsistent with the testimony from the two non- 25 examining medical consultants who testified at the hearing. However, the relevant standard 26 holds that this is an insufficient reason to reject a treating or examining opinion. "The opinion of 27 28 a nonexamining physician cannot by itself constitute substantial evidence that justifies the 14 3 1 rejection of the opinion of either an examining physician or a treating physician." Lester, 81 2 F.3d at 831. The "contrary opinion of a non-examining medical expert does not alone constitute 3 a specific, legitimate reason for rejecting a treating or examining physician's opinion…." 4 5 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). "The failure to provide a specific 6 and legitimate reason for rejecting the opinion of an examining physician, beyond the 7 contradictory opinion of a nonexamining physician, is error." Swanson v. Commissioner of 8 Social Security Administration, 274 F.Supp.3d 932, 939 (D. Ariz. 2017) (citing Lester, 81. F.3d 9 at 831); see also Lester, 81 F.3d at 831; Pitzer v. Sullivan, 908 F.2d 502, 506 n. 4 (9th Cir. 1990); 10 11 Gallant, 753 F.2d at 1456. As stated, the only other reason the ALJ provided for rejecting the 12 opinions under issue was based on a faulty and disingenuous assessment of Plaintiff's activities, 13 and as such, the ALJ's reliance on the non-examining opinions was clearly erroneous, as the 14 opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies 15 the rejection of three treating opinions. Because the ALJ did not provide any other legitimate 16 17 reason for rejecting the opinions of Plaintiff's treating providers, the non-examining opinions do 18 not constitute substantial evidence that would support her determination to reject all of the 19 treating opinions. 20 When looking at the record as whole, there is ample support and consistency between the 21 22 record and the three opinions in question. "[I]n reviewing the ALJ's decision to reject the 23 opinion of a treating or examining source, a court may look to other evidence contained within 24 the record, such as medical reports, contrary opinions by examining sources, and the claimant's 25 own testimony." Swanson, 274 F.Supp.3d at 938 (citing Lester, 81. F.3d at 831). The more a 26 medical source presents relevant evidence to support an opinion, the more weight will be given 27 28 to that opinion and generally, the more consistent an opinion is with the record as a whole, the 15 3 1 more weight will be given to the opinion. 20 C.F.R. § 404.1527(c)(3)-(4). Each opinion is fully 2 consistent with each other, and each are signed off treating physician Dr. DeBerard. T 1093, 3 1095, 1098. 4 5 These opinions are consistent with Plaintiff's initial rehabilitation assessment, that noted 6 Plaintiff continued to have the following functional impairments: fatigue, decreased functional 7 mobility, decreased fine motor control and coordination, cognition impairment, aphasia, and 8 impaired self-cares. T 362. Dr. Smith's opinion is consistent with Dr. DeBerard's treatment 9 notes, that document Plaintiff being emotional liable and angering easily. T 589. These opinions 10 11 are consistent with ED notes, that indicated Plaintiff was suffering from severe pain in the right 12 eye; providers also noted Plaintiff was extremely unstable on his feet and could not maintain his 13 balance. T 576. These opinions are consistent with Ms. Verhoef's treatment notes, as she 14 noticed that upon assessment in February 2016, Plaintiff had significant difficulty with retaining 15 certain information. T 839. Ms. Verhoef also noted that Plaintiff had declined in word finding 16 17 and sound sequencing. During a subsequent session dated February 29, 2016, Ms. Verhoef noted 18 that Plaintiff's vision and communication difficulties were a barrier for returning to work. T 19 842. 20 These opinions are consistent with treating optometrist Dr. Kompkoff's treatment notes, 21 22 as Dr. Kompkoff indicated Plaintiff's visions was worsening and that he was having different 23 acuity in each eye. T 916. Furthermore, these opinions are consistent with Dr. Smith's course of 24 treatment, which has transitioned from treatment for his PTSD to treatment for his 25 accommodation of disabilities and acceptance of his functional limitations. T 1091. These 26 opinions were consistent with treating physician Dr. Emili's treatment notes, as Dr. Emili 27 28 indicated Plaintiff was suffering from significant neurologic deficits from an intracerebral 16 3 1 hemorrhage; that Plaintiff's thought process was still slow to return; and that he was disabled as 2 he could no longer perform his job. T 940. Finally, these opinions were consistent with Dr. 3 DeBerard's treatment notes, as Dr. DeBerard noted the following: Plaintiff suffered from 4 5 continuing lethargy and decreased mental function following a large left temporary hemorrhage 6 in July 2015; he had not regained right peripheral vision; he fatigued easily and could be up and 7 around for only a few hours without stopping to rest; and he had tried to return to work but was 8 unable to do so. T 958. 9 Thus, an objective review of the record shows these opinions to be fully consistent with 10 11 the record. Furthermore, the ALJ erred by not considering any other factors as required by the 12 regulations. Ghanim, 763 F.3d at 1161 ("Even if a treating physician's opinion is contradicted, 13 the ALJ may not simply disregard it. The ALJ is required to consider the factors set out in 20 14 C.F.R. § 404.1527(c)(2)-(6) in determining how much weight to afford the treating physician's 15 medical opinion."). In sum, the ALJ's reasons for rejecting Dr. DeBerard, Dr. Smith, and Ms. 16 17 Verhoef's opinion was erroneous and unsupported by substantial evidence. T 20-22. Remand 18 for calculation of benefits is fully warranted in this regard. 19 2. The ALJ failed to weigh, mention, or discuss, a certain opinion from treating 20 optometrist Dr. Kompkoff. 21 While the ALJ discussed, mentioned, and weighed an opinion from treating optometrist 22 Dr. Kompkoff dated December 20, 2016, she completely failed to weigh, mention, or discuss a 23 prior opinion from Dr. Kompkoff dated June 20, 2016. T 22, 915. Not only was this contrary to 24 the relevant rules, regulations, and relevant case law, but was also highly prejudicial to Plaintiff's 25 26 claim for disability. As such, this failure to weigh this opinion from Dr. Kompkoff fully 27 warrants remand for further administrative proceedings. 28 17 3 1 The regulations are unambiguous in this matter. "In determining whether you are 2 disabled, we will always consider the medical opinions in your case record with the rest of the 3 relevant evidence we receive." 20 C.F.R. § 404.1527(b). "Regardless of its source, we will 4 5 evaluate every medical opinion we receive." 20 C.F.R. § 404.1527(c). Administrative Law 6 Judges cannot ignore the opinion of a medical expert and although the ALJ is not bound by a 7 given medical opinion, he must still explain the weight given to each of those opinions in his 8 decision. 20 C.F.R. § 404.1527; Social Security Ruling 96-6p, 1996 WL 374180 at *1; Social 9 Security Ruling 96-5p, 1996 WL 374183 at *1. The ALJ's failure to weigh Dr. Kompkoff's 10 11 letter was clearly contrary to the codified regulations and the agency's own rulings. 12 The case law is also clear on this issue: where an ALJ does not explicitly reject a medical 13 opinion or set forth specific, legitimate reasons for crediting one medical opinion over another, 14 she errs. Garrison, 759 F.3d at 1012 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 15 1996). "In other words, an ALJ errs when he rejects a medical opinion or assigns it little weight 16 17 while doing nothing more than ignoring it, asserting without explanation that another medical 18 opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a 19 substantive basis for his conclusion." (emphasis added). Id. The ALJ's failure to weigh Dr. 20 Kompkoff's letter was clearly contrary to the codified regulations; contrary to the agency's own 21 22 rulings; and contrary to the Ninth Circuit precedent. 23 On June 20, 2016, Dr. Kompkoff issued a statement opining on Plaintiff's impairments 24 and what limitations stemmed forth. T 915. The regulations define a medical opinion as 25 "…statements from acceptable medical sources that reflect judgements about the nature and 26 severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can 27 28 still do despite the impairment(s), and your physical and mental restrictions." 20 C.F.R. § 18 3 1 404.1527(a)(1). Dr. Kompkoff opined that Plaintiff suffered from a peripheral vision 2 impairment in his lower right visual filed and double vision hindering his ability to perform. T 3 915. Dr. Kompkoff also opined Plaintiff had a visual processing and visual motor disorder that 4 5 reduced reaction times and visual memory, which made it difficult for him to concentrate and 6 adapt. T 915. Thus, under the regulations, Dr. Kompkoff's letter in June 20, 2016, was a 7 medical opinion the ALJ was bound to consider, weigh, and discuss, and as such, her failure to 8 do so was error. 9 The ALJ's error is not harmless nor inconsequential to these proceedings. This Circuit 10 11 has expressed the view that failure to consider evidence from a treating physician requires 12 remand for the agency to properly consider all the evidence. Lingenfelter v. Astrue, 504 F. 3d 13 1098. 1045 (9th Cir. 2007). Furthermore, failure to consider opinion evidence undermines an 14 ALJ's weight determination for other opinions, as comparing and contrasting opinions is an 15 important factor when weighing medical opinion evidence. See, e.g., Social Security Ruling 06- 16 17 03p, 2006 WL 2329939 at *4 (noting that although this regulation refers to opinions from 18 "other" medical sources, it shows that "SSA's regulations include a provision that requires 19 adjudicators to consider any other factors brought to our attention, or of which we are aware, 20 which tend to support or contradict a medical opinion" and "the Act requires us to consider all of 21 22 the available evidence in the individual's case record in every case."). One of the reasons the 23 ALJ provides for rejecting Dr. Kompkoff's December 2016 opinion was because it did not 24 provide work-related limitations. T 22. However, the June 2016 opinion does identify specific 25 functions that Plaintiff's impairments affect and is specific enough to support a determination of 26 disability. T 915. Ultimately, this opinion shows Plaintiff's vision impairments preclude him 27 28 being to perform normal, routine, work tasks and that his cognitive difficulties cause limitations 19 3 1 in concentration and adaptation. These findings are contrary to the ALJ's RFC and ultimate 2 determination of disability. They also support the opinions that the ALJ rejected, and thus, 3 failure to weigh, mention, or discuss this opinion was harmful in that regards. Summarily, the 4 5 ALJ's error cannot be construed as harmless. The ALJ's error fully warrants remand for further 6 administrative proceedings. 7 3. The ALJ failed to reconcile her "significant" weight determination with certain 8 portions of Dr. Lebeau's testimony. 9 Despite affording non-examining physician Dr. Lebeau's testimony "significant" weight, 10 the ALJ failed to discuss certain aspects of his testimony that clearly contradict several aspects of 11 her decision. T 23. The ALJ also failed to incorporate certain limitations Dr. Lebeau opined to 12 within the RFC. Furthermore, Dr. Lebeau's opinion is not as inconsistent with the other medical 13 opinions as the ALJ contends, as there are certain aspects of Dr. Lebeau's testimony that the ALJ 14 15 completely ignores and fails to discuss in her decision. T 21, 23. This error fully warrants 16 remand for further administrative proceedings. 17 It is legal error for the ALJ to create an RFC assessment that conflicts with a portion of a 18 medical source statement which was accorded great weight without explaining the inconsistency. 19 20 See Social Security Ruling 96-8p, 1996 WL 374184 at *7. The ALJ cannot selectively focus on 21 aspect of a medical report which suggest non-disability without providing clear, convincing, 22 specific, and legitimate reasons for rejecting the portions of the medical opinions non focused on. 23 See Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (The ALJ "cannot reach a 24 conclusion first, and then attempt to justify it by ignoring competent evidence in the record that 25 26 suggests an opposite result."; see also Edlund v. Massanari, 235 F.3d 1152, 1159 (9th Cir. 2001) 27 ("We nonetheless believe that the ALJ selectively focused on aspects of Dr. Bremer's 1994 28 20 3 1 report which tend to suggest non-disability, and apparent failed to realize that under law, he 2 conclusion required clear and convincing reasons."). 3 Specifically, Dr. Lebeau opined Plaintiff's heart disease, kidney disease, and brain 4 5 disease was enough to make a combined listing. T 53. He also opined Plaintiff was not going to 6 get better, and that he had enough wrong with him that in the workplace, it is going to be clumsy, 7 difficult, and possibly dangerous. T 54. Furthermore, Dr. Lebeau opined Plaintiff would 8 probably have fatigue the rest of his left, with fatigue being tiredness that does not improve with 9 sleep and Plaintiff would have difficulty sustained an eight-hour workday. T 61-62. In addition, 10 11 Dr. Lebeau indicated Plaintiff's impairments were work preclusive, as he stated "I don't think an 12 employer would actually, in all honesty judge, put up with the difficulty that this gentleman has." 13 T 59. Contrary to the ALJ's position, this was Dr. Lebeau opining that Plaintiff's medical 14 impairments would preclude him from working, as this statement was proceeded by a discussion 15 of Plaintiff's cognitive defects. Furthermore, Dr. Lebeau opined that Dr. Valette was a 16 17 psychologist and was not able to give full consideration to some of the brain damage effects of a 18 stroke like this, which undermines the ALJ's reliance on Dr. Valette's opinion, especially when 19 she used it to reject the majority of opinion evidence regarding Plaintiff's cognitive limitations. 20 T 20-22, 58. 21 22 The ALJ's failure to discuss this testimony is harmful to Plaintiff's claim because it 23 places significant emphasis on Plaintiff's inability to work due to his cognitive defects. This 24 testimony also shows that Dr. Valette's opinion, which the ALJ relied on heavily to reject a 25 range of evidence favorable to Plaintiff's claim, was not positioned to properly consider 26 Plaintiff's cognitive impairments. Furthermore, the ALJ used Dr. Lebeau's opinion to reject Dr. 27 28 DeBerard's opinion. T 21. When looking at both opinions, they actually are not inconsistent at 21 3 1 all. Specifically, Dr. Lebeau even expressly agrees with Dr. Debrard, stating "And I think that 2 he probably has, as this doctor said, and I really agree with the doctor [DeBerard], reached a 3 level where further improvement is apparently going to be unlikely." T 59. This statement was 4 5 in regards to Plaintiff's physical/speech impairments. T 59. 6 Thus, a reviewing Court would be more apt to conclude that Dr. Lebeau's testimony 7 supports the treating opinions, and opines that Plaintiff's limitations caused impairments so 8 severe as to preclude him from working. Despite this, the ALJ failed to mention any of this 9 dispositive testimony from Dr. Lebeau and falsely relied on it to reject several different portions 10 11 of evidence favorable to Plaintiff. Remand for further administrative proceedings is fully 12 warranted in this regard. 13 CONCLUSION 14 For the foregoing reasons, it is respectfully requested that the Commissioner's decision 15 be reversed, and that this matter be remanded for a calculation of benefits. In the alternative, it is 16 17 respectfully requested that the ALJ's decision be vacated, and this matter be remanded for 18 further proceedings, including a de novo hearing and new decision. 19 Respectfully submitted, 20 /s/Edward A. Wicklund 21 Edward A. Wicklund, Esq. 22 Attorney for Plaintiff 23 24 25 26 27 28 22 3 1 CERTIFICATE OF SERVICE 2 This is to certify that I have this day served counsel for the Defendant with Plaintiff's 3 Memorandum of Law by electronically filing the foregoing with the Clerk of the Court by using the CM/ECF system which will send electronic notification of such filing to: 4 5 Bryan Schroder Ryan Lu 6 This 6th day of June, 2018. 7 8 /s/ Edward A. Wicklund 9 Edward A. Wicklund, Esq. Attorney for Plaintiff 10 Olinsky Law Group 11 300 South State Street, Suite 420 Syracuse, New York 13202 12 Telephone: (315) 701-5780 Fax: (315) 701-5781 13 twicklund@windisability.com 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 3

First MOTION for Extension of Time to File Response/Reply as to {{15}} MOTION Reversal of agency decision and remand for calculation of benefits or, alternatively, further administrative proceedings with Memorandum in support thereof and Certificate of Service Unopposed by Nancy A. Berryhill.

1 BRYAN SCHRODER 2 United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 RYAN LU Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone: (206) 615-2034 Fax: (206) 615-2531 11 ryan.lu@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 MARCUS LOYD KING, Case No. 3:18-cv-00007-TMB 16 Plaintiff, 17 UNOPPOSED MOTION TO AMEND vs. THE SCHEDULING ORDER 18 NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. Defendant hereby moves, with no opposition from Plaintiff's counsel, that the scheduling 21 Order should be amended as follows for the reasons noted in the Declaration of Ryan Lu: 22  Defendant shall file a response to Plaintiff's Motion on or before August 3, 3018; and 23 24 Page 1 UNOPPOSED MOTION TO AMEND THE SCHEDULING ORDER - [3:18-cv-00007- TMB] 25 26 1  Plaintiff shall file the optional Reply on or before August 17, 2018. 2 DATED this 12th day of July 2018. 3 Respectfully submitted, 4 Bryan Schroder 5 United States Attorney 6 RICHARD L. POMEROY Assistant United States Attorney 7 MATHEW W. PILE 8 Acting Regional Chief Counsel, Seattle, Region X 9 s/Ryan Lu RYAN LU 10 Special Assistant United States Attorney Office of the General Counsel 11 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 12 Seattle, WA 98104-7075 Telephone: (206) 615-2034 13 Fax: (206) 615-2531 ryan.lu@ssa.gov 14 CERTIFICATE OF SERVICE 15 I hereby certify that the foregoing Defendant's Motion to Amend the Scheduling Order 16 and attached proposed Order were filed with the Clerk of the Court on July 12, 2018, using the 17 CM/ECF system, which will send notification of such filing to the following: Edward A. 18 Wicklund. 19 20 s/Ryan Lu RYAN LU 21 Special Assistant U.S. Attorney Office of the General Counsel 22 23 24 Page 2 UNOPPOSED MOTION TO AMEND THE SCHEDULING ORDER - [3:18-cv-00007- TMB] 25 26

Proposed Order

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT FOR THE 8 DISTRICT OF ALASKA 9 MARCUS LOYD KING, Civil No. 3:18-cv-00007-TMB 10 Plaintiff, 11 vs. PROPOSED ORDER AMENDING THE SCHEDULING ORDER 12 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 13 Defendant. 14 Based on Defendant's Motion, and that Plaintiff has no opposition, it is hereby 15 ORDERED that the Scheduling Order shall be amended as follows: 16  Defendant shall have up to and including August 3, 2018, to file Defendant's Response; 17 and 18  Plaintiff shall have up to and including August 17, 2018, to file a Reply brief. 19 DATED this day of, 2018. 20 ___________________________________ 21 UNITED STATES DISTRICT JUDGE 22 23 24 Page 1 PROPOSED ORDER AMENDING THE SCHEDULING ORDER - [3:18-cv-00007-TMB] 25 26 1 Presented by: 2 s/ Ryan Lu 3 RYAN LU Special Assistant U.S. Attorney 4 Office of the General Counsel Social Security Administration 5 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 6 Telephone: (206) 615-2034 Fax: (206) 615-2531 7 ryan.lu@ssa.gov 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 2 PROPOSED ORDER AMENDING THE SCHEDULING ORDER - [3:18-cv-00007-TMB] 25 26

DECLARATION of Ryan Lu re {{16}} First MOTION for Extension of Time to File Response/Reply as to {{15}} MOTION Reversal of agency decision and remand for calculation of benefits or, alternatively, further administrative proceedings with Memorandum in support thereof and Certif by Nancy A. Berryhill.

1 Bryan Schroder 2 United States Attorney Richard L. Pomeroy 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 richard.pomeroy@usdoj.gov 6 RYAN LU 7 Special Assistant U.S. Attorney Office of the General Counsel 8 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 9 Seattle, WA 98104-7075 Telephone: (206) 615-2034 10 Fax: (206) 615-2531 ryan.lu@ssa.gov 11 Of Attorneys for Defendant 12 IN THE UNITED STATES DISTRICT COURT 13 FOR THE DISTRICT OF ALASKA 14 15 MARCUS LOYD KING, Case No. 3:18-cv-00007-TMB 16 Plaintiff 17 vs. DECLARATION OF RYAN LU 18 NANCY A. BERRYHILL, Acting Commissioner of Social Security 19 Defendant 20 I, Ryan Lu, declare as follows: 21 1. I am an Assistant Regional Counsel for the Social Security Administration in Seattle, 22 Washington, and a Special Assistant United States Attorney for the District of Alaska. I 23 represent the Defendant, Nancy A. Berryhill, in this case. 24 25 Page 1 DECLARATION OF RYAN LU – [3:18-cv-00007-TMB] 26 1 2. Defendant's response brief is currently due July 13, 2018. 2 3. I am requesting an extension until August 3, 2018, to file Defendant's Brief. 3 4. Plaintiff has no objection to this extension request. 4 5. This is Defendant's first request for an extension of time in this case. 5 6. I will be out of the office on leave beginning July 13, 2018, until July 24, 2018. I have to 6 file three other briefs before I begin my leave. In the past two weeks, I worked on several 7 agency matters with due dates prior to the due date on this case, including drafting and 8 filing three responsive briefs; negotiating, drafting, and filing a stipulated motion for 9 remand; and conducting research and investigation into an agency civil rights matter. 10 7. For the reasons listed above, I need additional time to complete Defendant's response 11 brief. 12 8. I have diligently worked on my various assignments and will continue to do so. I request 13 this extension due to substantial need for more time. 14 Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and 15 correct. 16 Executed this 12th day of July 2018. 17 By: s/ Ryan Lu 18 RYAN LU Special Assistant U.S. Attorney 19 20 21 22 23 24 25 Page 2 DECLARATION OF RYAN LU – [3:18-cv-00007-TMB] 26 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Declaration of Ryan Lu was filed with the Clerk of the 3 Court on July 12, 2018, using the CM/ECF system which will send notification of such filing to 4 the following: Edward A. Wicklund. 5 s/ Ryan Lu 6 RYAN LU Special Assistant U.S. Attorney 7 Office of the General Counsel 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 3 DECLARATION OF RYAN LU – [3:18-cv-00007-TMB] 26

Response in Opposition to Motion

1 BRYAN SCHRODER 2 United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 RYAN LU Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone(206) 615-2034 Fax(206) 615-2531 11 ryan.lu@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 MARCUS LOYD KING, Case No. 3:18-cv-00007-TMB 16 Plaintiff, 17 DEFENDANT'S RESPONSE BRIEF vs. 18 NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. 21 INTRODUCTION 22 Plaintiff Marcus King sought Social Security disability benefits, alleging he became 23 unable to work after he sustained a stroke in July 2015. Defendant, the Acting Commissioner of 24 Social Security, through an administrative law judge (ALJ), considered Plaintiff's allegations but 25 Page 1 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 found them unreliable because they were inconsistent with the record evidence. Treatment notes 2 showed that Plaintiff experienced rapid improvement in functioning just months after his stroke. 3 Plaintiff had no problems driving on icy roads, taking care of his sons, and going fishing and 4 camping. A speech therapist reported that Plaintiff showed good improvement, achieving 90 5 percent accuracy in word testing. Plaintiff did "very well" when processing and retaining details 6 from newspaper articles. An impartial psychological expert, after reviewing the record, even 7 testified that Plaintiff had largely mild limitations in mental functioning. 8 After considering such evidence, as well as the testimony from a vocational expert 9 identifying more than four million jobs in the national economy that a person with Plaintiff's 10 limitations could perform, the ALJ determined that Plaintiff was not disabled as defined by the 11 Social Security Act. As the ALJ's findings are reasonable in light of the record as a whole and 12 because the Act requires deference to these findings if supported by substantial evidence—that is, 13 if there is such relevant evidence as a reasonable person might accept as adequate to support a 14 conclusion—the Court should uphold the Commissioner's final decision that Plaintiff was not 15 disabled. 16 STATEMENT OF THE CASE 17 Plaintiff seeks judicial review of the final administrative decision denying his application 18 for Disability Insurance Benefits under the Social Security Act. 42 U.S.C. § 401-33. The Act 19 provides for judicial review of a "final decision" of the Commissioner of Social Security 20 (Commissioner). 42 U.S.C. § 405(g). 21 /// 22 /// 23 /// 24 25 Page 2 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 ISSUES 2 The main issue is whether the decision of the Commissioner is supported by substantial 3 evidence and free of harmful legal error. Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 4 2012). Plaintiff raises the following specific issues: 5 1) Did the ALJ reasonably reject the opinions from Plaintiff's three treating clinicians 6 given their inconsistency with the record evidence? 7 2) Did the ALJ include in the residual functional capacity finding the limitations 8 described in the medical opinion from the testifying medical expert, Jack Lebeau, 9 M.D.? 10 3) Did the ALJ reasonably determine that the statements from an optometrist, Laura 11 Kompkoff, O.D., were entitled to only some weight when the statements did not 12 describe any specific work-related limitations and were inconsistent with Plaintiff's 13 activities? 14 Plaintiff's Opening Brief (ECF No. 15)1 at 1. 15 PROCEDURAL HISTORY 16 Plaintiff applied for disability benefits, alleging he became disabled on February 16, 2016. 17 Tr. 15. The agency denied his application and Plaintiff requested an administrative hearing. Tr. 18 15. The ALJ held a hearing and obtained testimony from Plaintiff, two impartial medical experts, 19 and an impartial vocational expert. Tr. 15, 32. In August 2017, the ALJ issued a decision finding 20 Plaintiff was not disabled. Tr. 15-26. The agency's Appeals Council denied Plaintiff's request 21 for review, making the ALJ's decision the final agency decision. Tr. 1-5. This appeal followed. 22 23 24 1 Subsequent references to Plaintiff's Opening Brief will be as "Pl.'s Br." 25 Page 3 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 STATEMENT OF THE FACTS 2 Plaintiff alleged he could not work beginning February 2016 because of symptoms and 3 limitations stemming from a July 2015 stroke, as well as hypertension and congestive heart 4 failure. Tr. 20, 96. He claimed he had problems walking, speaking, hearing, and seeing. Tr. 20. 5 He said he needed assistance from his parents to complete tasks such as managing finances, 6 driving his children to appointments and events, and taking medication. Tr. 20. 7 Medical reports in the record document Plaintiff's treatment and show steady 8 improvement in his functioning following his stroke. In January 2016, a clinician noted that 9 Plaintiff had driven from Kenai, Alaska, and "felt pretty good about (and girlfriend agreed) 10 driving in daylight," despite his worry that it remained unsafe to drive in the dark. Tr. 20, 543. 11 Plaintiff and his girlfriend "agreed he did well on the icy roads" and had no problems with "other 12 aspects of driving" except driving in the dark. Tr. 543. Plaintiff later told clinicians that he had 13 been taking care of his sons and "taking them to hockey, doing homework, etc." Tr. 20, 555. He 14 took his sons fishing and camping. Tr. 20, 846, 887. He even helped a friend "move a 4- 15 wheeler." Tr. 20, 894. Testing by a speech therapist showed that Plaintiff experienced "[g]ood 16 accuracy and speed" improvement, achieving an overall word test accuracy of 90 percent. Tr. 17 548. Plaintiff did "very well with the details" when processing and retaining details from a longer 18 newspaper article. Tr. 849. 19 Medical notes also show that, despite complaints of cardiovascular symptoms, Plaintiff's 20 heart functioning was largely unremarkable. Tr. 20, 564-65. Electrocardiograms showed normal 21 findings. Tr. 564. Although he appeared lethargic and had some abnormal coordination, 22 Plaintiff's neurological functioning was largely intact—Plaintiff was oriented, showed normal 23 24 25 Page 4 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 muscle tone and normal reflexes, and exhibited no muscle atrophy or cranial nerve deficit. Tr. 2 563-64. 3 Plaintiff was 43 years old on his alleged disability onset date, had at least a high school 4 education, and could communicate in English. Tr. 24. He had past relevant work as a hydrant- 5 and-valve setter and construction worker II. Tr. 24. The Commissioner adopts the ALJ's 6 findings of facts and discusses them in the Arguments section below as necessary. Tr. 15-26. 7 BURDENS AND THE SEQUENTIAL EVALUATION PROCESS 8 The burden was on Plaintiff to prove he was disabled within the meaning of the Act. 9 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). Disability is the "inability to engage in any 10 substantial gainful activity by reason of any medically determinable physical or mental 11 impairment which can be expected to result in death or which has lasted or can be expected to last 12 for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). A claimant is 13 disabled only if his impairments are so severe he is not only unable to do his previous work but 14 cannot, considering his age, education, and work experience, engage in any other substantial 15 gainful activity existing in the national economy. 42 U.S.C. § 423(d)(2)(A); Tackett, 180 F.3d at 16 1098. 17 The Commissioner evaluates disability claims using a five-step sequential evaluation 18 process. 20 C.F.R. § 404.1520(a). The claimant has the burden of proof at steps one through 19 four. Tackett, 180 F.3d at 1098-99. At step five, the burden of production shifts to the 20 Commissioner to identify jobs existing in significant numbers in the national economy that the 21 claimant can perform in light of her residual functional capacity, age, education, and work 22 experience. 20 C.F.R. § 404.1560(c)(2). 23 24 25 Page 5 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 STANDARD OF REVIEW 2 This Court should affirm the Commissioner's final decision if it is supported by 3 substantial evidence and free of harmful legal error. 42 U.S.C. § 405(g); Tommasetti v. Astrue, 4 533 F.3d 1035, 1038 (9th Cir. 2008). The "key question is not whether there is substantial 5 evidence that could support a finding of disability, but whether there is substantial evidence to 6 support the Commissioner's actual finding that claimant is not disabled." Jamerson v. Chater, 7 112 F.3d 1064, 1067 (9th Cir. 1997). 8 Substantial evidence "is a highly deferential standard of review" and "means such relevant 9 evidence as a reasonable mind might accept as adequate to support a conclusion.'" Valentine v. 10 Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). The Commissioner's findings 11 must be upheld if they are supported by inferences reasonably drawn from record evidence. 12 Tommasetti, 533 F.3d at 1038. This court may not substitute its judgment for that of the ALJ if 13 the evidence "reasonably supports either confirming or reversing the ALJ's decision." Batson v. 14 Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). 15 ARGUMENTS 16 I. The ALJ reasonably rejected the medical opinion from Plaintiff's treating clinicians. 17 Plaintiff argues that the ALJ erred in rejecting the opinions from three clinicians: (1) 18 physician Scott DeBerard, D.O.; (2) psychologist Bruce Smith, Ph.D.; and (3) speech pathologist 19 Anne Ver Hoef, M.A. When weighing medical opinions, the ALJ considers factors that include 20 the degree to which the opinion is supported by clinical findings and its consistency with the 21 record as a whole. 20 C.F.R. § 404.1527(c). As discussed below, the ALJ considered the 22 relevant factors and provided legally valid reasons, supported by substantial evidence, to reject 23 these three clinicians' assessments. 24 25 Page 6 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 A. Treating physician Dr. DeBerard 2 Dr. DeBerard completed a "check-box" medical source statement form at the request of 3 Plaintiff's attorney. Tr. 1093-94. Dr. DeBerard opined that Plaintiff physical limitations that 4 included lifting only up to 10 pounds occasionally and needing to lie down 1-2 hours daily due to 5 fatigue. Tr. 1094. The ALJ reasonably rejected Dr. DeBerard's opinion. Tr. 21. 6 The ALJ "is responsible for. . . resolving conflicts in medical testimony, and resolving 7 ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). The regulations 8 provide a non-exhaustive list of factors that an ALJ may consider in weighing medical opinions, 9 including the degree to which the opinion is supported by clinical findings and its consistency 10 with the record as a whole. 20 C.F.R. § 404.1527(c). Where a doctor's opinion "is contradicted 11 by another doctor's opinion," an ALJ may reject it by providing "specific and legitimate reasons." 12 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). As Dr. DeBerard's opinion was 13 contradicted by other medical opinions,2 the ALJ reasonably rejected it be identifying two 14 specific and legitimate reasons: because the opinion was inconsistent with (1) the testimony from 15 the medical expert, and (2) and Plaintiff's daily activities. Tr. 21. 16 The ALJ first explained that Dr. DeBerard's opinion was unpersuasive because it was "not 17 fully consistent with the medical expert opinion of Dr. Lebeau." Tr. 21. This reasoning was valid 18 because the Ninth Circuit has "consistently upheld the Commissioner's rejection of the opinion of 19 a treating or examining physician, based in part on the testimony of a nontreating, nonexamining 20 medical advisor." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999). 21 22 2 23 An impartial medical expert, Jack Lebeau, M.D., testified at the hearing that Plaintiff could 24 perform a range of medium work, including lifting up to 50 pounds. Tr. 55-59. 25 Page 7 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 Here, the ALJ accurately noted that Dr. DeBerard's opinion was inconsistent with that of Dr. 2 Lebeau, "who had the opportunity to review the entire record, and found that [Plaintiff] had the 3 ability to lift and carry 11 to 20 pounds frequently, and up to 50 pounds occasionally." Tr. 21, 55- 4 59. The ALJ reasonably rejected Dr. DeBerard's opinion given its inconsistency with Dr. 5 Lebeau's testimony. 6 According to Plaintiff, the ALJ's reason in invalid because the opinion of a 7 "nonexamining physician cannot by itself constitute substantial evidence that justifies the 8 rejection of the opinion of either an examining or a treating physician." Pl.'s Br. at 14-15 9 (quoting Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995)). However, Lester acknowledges that 10 the Ninth Circuit has "in some cases" upheld "the Commissioner's decision to reject the opinion 11 of a treating or examining physician, based in part on the testimony of a nonexamining medical 12 advisor." 81 F.3d at 831 (citing Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989); 13 Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); and Roberts v. Shalala, 66 F.3d 179 (9th 14 Cir. 1995)). For example, an ALJ may reject a treating opinion by citing a contradicting 15 nonexamining opinion where the record includes "an abundance of evidence that supported [the] 16 rejection of the opinion," such as when the record conflicts with several nonexamining doctors' 17 opinions. Lester, 81 F.3d at 831. Similarly, Dr. DeBerard's opinion was contradicted not just by 18 the testimony from Dr. Lebeau, but also by the medical opinion from Nathaniel Arcega, M.D., the 19 State agency reviewing medical consultant who reviewed the medical record and determined that 20 Plaintiff could perform a range of medium work. Tr. 98-100. Because the record contains an 21 abundance of evidence supporting the ALJ's rejection of Dr. DeBerard's opinion, Plaintiff's 22 argument is without merit. 23 24 25 Page 8 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 Regardless, the ALJ identified a second reason to discount Dr. DeBerard's opinion: 2 because it was "not fully consistent with [Plaintiff's] candid reports of activities, including 3 driving and camping." Tr. 21. This rationale is also appropriate, as an ALJ may reject a medical 4 opinion that is at odds with a claimant's daily activities. Rollins v. Massanari, 261 F.3d 853, 856 5 (9th Cir. 2001). As the ALJ discussed in the decision, Plaintiff engaged in activities that included 6 taking care of his sons and "taking them to hockey, doing homework, etc." Tr. 20, 555. He even 7 took his sons fishing and camping, and helped a friend "move a 4-wheeler." Tr. 20, 846, 887 894. 8 To the extent Plaintiff's ability to perform these activities undermined Dr. DeBerard's opinion, 9 the ALJ reasonably found the opinion unpersuasive. 10 Although Plaintiff contends the ALJ did not explain with sufficient specificity how these 11 daily activities contradicted Dr. DeBerard's opinion (Pl.'s Br. at 12), this Court may draw 12 reasonable inferences from the ALJ's decision "if those inferences are there to be drawn." 13 Magallanes, 881 F.2d at 755. "Even when an agency explains its decision with less than ideal 14 clarity, [the reviewing court] must uphold it if the agency's path may reasonably be discerned." 15 Molina, 674 F.3d at 1121 (quotation marks omitted). Here, the ALJ reasonably found that Dr. 16 DeBerard's opinion—that Plaintiff's impairments were so severe Plaintiff could only lift up to 10 17 pounds—was inconsistent with Plaintiff's ability to care for his two sons, take them camping and 18 fishing, and help a friend move a 4-wheeler. Tr. 21. 19 Not all of an ALJ's reasons for rejecting a medical opinion must be upheld as long as 20 substantial evidence supports the determination. Batson, 359 F.3d at 1195. As long as there is 21 "such relevant evidence as a reasonable mind might accept as adequate to support [the ALJ's] 22 conclusion," it should not be overturned. Valentine, 574 F.3d at 690. Because substantial 23 24 25 Page 9 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 evidence supports the ALJ's legally valid reasons for rejecting Dr. DeBerard's opinion, the Court 2 should affirm. 3 B. Treating psychologist Dr. Smith 4 A treating psychologist, Dr. Smith, also completed a check-box assessment form at the 5 request of Plaintiff's attorney. Tr. 1095-97. Dr. Smith opined that Plaintiff had mental 6 limitations that included moderate difficulties carrying out very short and simple instructions, as 7 well as marked difficulties maintaining attention, working in coordination with others, and 8 interacting with the public. Tr. 1095-97. Because Dr. Smith's opinion was contradicted by 9 another opinion, the ALJ appropriately rejected it by identifying a specific and legitimate reason 10 to do so. Tr. 22; Bayliss, 427 F.3d at 1216. 11 As previously noted, an ALJ may reject a treating doctor's opinion by pointing to the 12 "testimony of a nontreating, nonexamining medical advisor." Morgan, 169 F.3d at 602. Here, 13 the ALJ explained that Dr. Bruce's opinion was unreliable because it was "not entirely consistent" 14 with the opinion of a psychological expert who testified at the hearing, Collette Valette, Ph.D. Tr. 15 22. In contrast to Dr. Bruce's opinion of moderate to marked limitation in mental functioning, 16 Dr. Valette testified that, based on her review of the medical record, Plaintiff had only "mild 17 impairment in executive functioning," mild difficulties understanding, remembering, or applying 18 information, and no difficulties with concentration, persistence, or pace. Tr. 42-44. Notably, as 19 the ALJ pointed out, Dr. Valette's testimony was consistent with the medical record, as she 20 specifically identified medical reports and findings that supported her opinion. See Tr. 23, 41-44. 21 The ALJ reasonably rejected Dr. Bruce's opinion in light of its discrepancy with Dr. Valette's 22 testimony. Tr. 22. 23 24 25 Page 10 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 In disputing the ALJ's finding, Plaintiff merely repeats the assertion that a non-examining 2 doctor's opinion does not constitute substantial evidence. Pl.'s Br. at 14-15. But as already 3 explained above, the Ninth Circuit has "consistently upheld the Commissioner's rejection of the 4 opinion of a treating or examining physician, based in part on the testimony of a nontreating, 5 nonexamining medical advisor." Morgan, 169 F.3d at 602. Where, as here, the record includes 6 "an abundance of evidence that supported [the] rejection of the opinion," an ALJ may do so by 7 citing a contradicting nonexamining opinion. Lester, 81 F.3d at 831. "[T]he ALJ is the final 8 arbiter with respect to resolving ambiguities in the medical evidence." Tommasetti, 533 F.3d at 9 1041. The ALJ's finding should thus be upheld. 10 C. Treating speech pathologist Mr. Ver Hoef 11 Ms. Ver Hoef, a speech pathologist, completed a check-box form that was co-signed by 12 Plaintiff's treating physician, Dr. DeBerard. Tr. 1098-1100. Ms. Ver Hoef assessed mostly mild 13 to moderate limitations in mental functioning, including understanding and remembering very 14 short simple instructions, sustaining an ordinary routine, and asking simple questions. Tr. 1099- 15 1100. The ALJ provided several specific and legitimate reasons to reject Ms. Ver Hoef's 16 opinion.3 Tr. 22. 17 18 19 3 Speech pathologists are not "acceptable medical sources" and thus not entitled to the same level 20 of deference as licensed psychologists. See Molina, 674 F.3d at 1111 (explaining that an ALJ 21 may discount testimony from "other sources" simply by giving "germane" reasons). Even though 22 he was required to provide only germane reasons, the ALJ here provided reasons that were 23 specific and legitimate, which are more stringent than the germane reasons standard and are 24 sufficient to reject even opinions from acceptable medical sources. See Bayliss, 427 F.3d at 1216. 25 Page 11 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 The ALJ explained that Ms. Ver Hoef's opinion was "inconsistent with the acceptable 2 medical source opinion of clinical psychologist Dr. Valette," the medical expert who reviewed the 3 record and testified at the hearing. Tr. 22. This rationale, as already explained, is specific and 4 legitimate. Morgan, 169 F.3d at 602. Because Dr. Valette testified that Plaintiff had no more 5 than mild limitations in cognitive functioning, the ALJ reasonably rejected Ms. Ver Hoef's 6 contradicted opinion by citing Dr. Valette's testimony. Tr. 22. 7 The ALJ identified a second reason to reject Ms. Ver Hoef's opinion: because the 8 assessment on mental functioning was "beyond the scope of her expertise as a speech language 9 pathologist." Tr. 22. The regulations explain that a clinician's expertise is a valid factor that the 10 ALJ must consider when evaluating her opinion. See 20 C.F.R. § 404.1527(c)(5) ("We generally 11 give more weight to the opinion of a specialist about medical issues related to his or her area of 12 specialty than to the opinion of a source who is not a specialist."). Accordingly, an ALJ may 13 reject a clinician's opinion if it is outside the scope of her expertise, especially where, as here, the 14 opinion is contradicted by the opinion from a licensed psychologist. See Molina, 674 F.3d at 15 1112 (upholding rejection of clinician given the contradicting opinion from another doctor "who 16 specialized in the relevant field of psychiatry, and whose opinion was therefore entitled to greater 17 weight"). As Ms. Ver Hoef was a speech pathologist and not a psychologist, the ALJ reasonably 18 rejected her opinion in favor of Dr. Valette's expert testimony. Tr. 22. 19 In finding Ms. Ver Hoef's opinion unreliable, the ALJ offered a third valid rationale when 20 she noted that it was "not supported by her treatment records." Tr. 22. An ALJ "need not accept 21 the opinion" of any clinician "if that opinion is brief, conclusory, and inadequately supported by 22 clinical findings." Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (internal quotation 23 marks omitted). In her decision, the ALJ cited Ms. Ver Hoef's clinical notes and observed that 24 25 Page 12 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 they "showed steady improvement." Tr. 20. Ms. Ver Hoef reported that Plaintiff had been taking 2 care of his sons and "taking them to hockey, doing homework, etc." Tr. 20, 555. Ms. Ver Hoef 3 reported that on testing Plaintiff experienced "[g]ood accuracy and speed" improvement, 4 achieving an overall word test accuracy of 90 percent. Tr. 548. Plaintiff did "very well with the 5 details" when processing and retaining details from a longer newspaper article. Tr. 849. To the 6 extent Ms. Ver Hoef's opinion was inconsistent with her own treatment notes, the ALJ reasonably 7 rejected her opinion. Tr. 22. 8 Although Plaintiff challenges the ALJ's findings, he does not offer any independent 9 arguments and instead simply repeats the same assertions he made in disputing the ALJ's 10 rejection of the opinions from Drs. DeBerrad and Smith. See Pl.'s Br. at 12-15. These 11 arguments, as just explained, are without merit. The ALJ here provided legally valid reasons, 12 supported by substantial evidence, to reject Ms. Ver Hoef's opinion. The ALJ's finding should be 13 affirmed. 14 II. The ALJ included in the residual functional capacity finding the limitations 15 described in the medical opinion from the testifying medical expert, Dr. Lebeau. 16 The independent medical expert at the hearing, Dr. Lebeau, testified that Plaintiff could 17 perform a range of medium work, including lifting up to 50 pounds. Tr. 55-59. The ALJ gave the 18 opinion "significant weight" (Tr. 23), and accounted for it in the residual functional capacity 19 finding by limiting Plaintiff to medium work with some limitations. Tr. 19. When an ALJ 20 incorporates a doctor's assessed limitations in the residual functional capacity finding, there is no 21 conflict to resolve. See Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1222-23 (9th Cir. 2010). 22 The ALJ's residual functional capacity finding is therefore supported by substantial evidence. 23 Plaintiff disagrees and argues that the ALJ did not fully account for Dr. Lebeau's opinion. 24 Pl.'s Br. at 21. However, the portions of Dr. Lebeau's testimony that Plaintiff cites in an attempt 25 Page 13 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 to support his argument are vague and do not describe specific work-related limitations. For 2 example, Plaintiff notes that "Dr. Lebeau opined Plaintiff would probably have fatigue the rest of 3 his left [sic], with fatigue being tiredness that does not improve with sleep and Plaintiff would 4 have difficulty sustained [sic] an eight-hour workday." Pl.'s Br. at 21 (emphasis added). As 5 these statements are so vague that they lack any specificity to be useful in a disability evaluation, 6 the ALJ was not required to account for them in the residual functional capacity. See Meanel v. 7 Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (explaining that a doctor's "mere statement" that a 8 claimant "experienced some diminution in her concentration skills falls short of an informed 9 opinion that [the claimant's] pain and diminished concentration skills would significantly 10 interfere with her ability to work," and that only another doctor "made specific findings that were 11 useful in the disability determination"). 12 Plaintiff also claims Dr. Lebeau testified that Plaintiff's impairments were "enough to 13 make a combined listing." Pl.'s Br. at 21 (citing Tr. 53). At step three of the sequential 14 evaluation the ALJ considers whether a claimant's impairment or combination of impairments 15 meets or equals an impairment that presumptively demonstrates disability. 20 C.F.R. § 16 404.1520(d); 20 C.F.R. pt. 404, subpt. P, app. 1 (Listings). The Listings describe, for every major 17 body system, impairments which are severe enough to be per se disabling. Tackett, 180 F.3d at 18 1099. Here, Dr. Lebeau initially testified that Plaintiff's impairments were "enough to make a 19 combined listing." Tr. 53. But when asked by the ALJ to justify this conclusion, Dr. Lebeau 20 qualified his statement by stating that he disagreed with the Social Security Listing requirements 21 because they "are often so, you know -- I don't want to use the word, harsh, but they're -- they're 22 severe, you know?" Tr. 54. On further questioning, Dr. Lebeau conceded that, based on the 23 current agency regulations, Plaintiff's impairments did not meet or equal the Listings. Tr. 55 24 25 Page 14 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 ("And I can't shape this into meeting or, in the case now with the heart, of equaling, you know, a 2 listing."). Because Dr. Lebeau ultimately did not opine that Plaintiff's impairments were of 3 Listings-level severity, the ALJ was not required to reject or discuss the testimony.4 4 An ALJ "need not discuss all evidence presented to her." Vincent v. Heckler, 739 F.2d 5 1393, 1395 (9th Cir. 1984). Rather, she must only "explain why significant probative evidence 6 has been rejected." Id. Here, the ALJ incorporated into the residual functional capacity all 7 specific work-related limitations described in Dr. Lebeau's testimony. To the extent some of Dr. 8 Lebeau's statements were vague and were not significant probative evidence, the ALJ was not 9 required to discuss them. 10 III. The ALJ reasonably determined that the statement from optometrist Dr. Kompkoff 11 was entitled to only some weight because it did not describe any specific work-related limitations. 12 Treating optometrist Dr. Kompkoff drafted two letters discussing Plaintiff's visual 13 impairments. In June 2016, Dr. Kompkoff wrote a letter stating that Plaintiff had "peripheral 14 vision impairment in his lower right visual field and double vision hindering his ability to 15 perform." Tr. 915. According to Dr. Kompkoff, Plaintiff had "a visual processing and visual 16 motor disorder which reduces his reaction times and visual memory making it difficult to 17 concentrate and adapt." Tr. 915. Thereafter, in December 2016, Dr. Kompkoff wrote another 18 letter declaring Plaintiff "suffers from diplopia (double vision) and peripheral vision loss in both 19 eyes. Therefore, he is unable to drive and perform daily tasks on his own safely." Tr. 1072. 20 21 4 22 Indeed, to the extent Dr. Lebeau provided a medical opinion that Plaintiff was capable of 23 performing medium work with some limitations (Tr. 55-59), the ALJ accounted for the 24 assessment by limiting Plaintiff to performing a range of medium work. Tr. 19. 25 Page 15 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 Contrary to Plaintiff's assertion (Pl.'s Br. at 17), the ALJ appropriately rejected the opinions. Tr. 2 22. 3 As previously discussed, an ALJ may reject vague and conclusory physician opinions. See 4 Meanel, 172 F.3d at 1114. Here, the ALJ explained that she "considered Dr. Kompkoff's 5 statements," but found they "did not provide a function-by-function opinion of [Plaintiff's] work- 6 related limitations." Tr. 22. Dr. Kompkoff's statements asserting that Plaintiff's impairments 7 made it "difficult" to concentrate and adapt are vague and insufficiently specific to be probative 8 evidence in an evaluation of Plaintiff's work-related functioning. The ALJ therefore reasonably 9 gave the opinions only "some weight." Tr. 22. 10 Additionally, an ALJ may discount opinions that are at odds with a claimant's daily 11 activities. Rollins, 261 F.3d at 856. Accordingly, the ALJ appropriately discounted Dr. 12 Kompkoff's assertion that Plaintiff was "unable to drive and perform daily tasks on his own 13 safely" because it was inconsistent with Plaintiff's own reported abilities, which included driving 14 on ice, taking care of his sons, and even going camping and fishing. Tr. 22, 543, 555, 846, 887. 15 Plaintiff claims that the ALJ "failed to weight, mention, or discuss" Dr. Kompkoff's June 16 2016 letter. Pl.'s Br. at 17. Even assuming Plaintiff's assertion were true, Plaintiff fails to 17 demonstrate how any error by the ALJ in not discussing Dr. Kompkoff's June 2016 letter was 18 harmful. As discussed, that letter merely stated that Plaintiff had "peripheral vision impairment in 19 his lower right visual field and double vision hindering his ability to perform." Tr. 915. 20 According to Dr. Kompkoff, Plaintiff had "a visual processing and visual motor disorder which 21 reduces his reaction times and visual memory making it difficult to concentrate and adapt." Tr. 22 915. These statements are vague and do not describe any specific work-related limitations that 23 the ALJ was required to account for in the residual functional capacity finding. See Vincent, 739 24 25 Page 16 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 F.2d at 1395 (explaining that the ALJ "need not discuss all evidence presented to her" and instead 2 must only "explain why significant probative evidence has been rejected"). 3 Lastly, Plaintiff asks the Court to remand this case and order a payment of benefits should 4 the Court find the ALJ committed harmful error. Pl.'s Br. at 22. Courts may credit evidence as 5 "true" and award benefits only in narrow circumstances.5 Treichler v. Comm'r of Soc. Sec. 6 Admin., 775 F.3d 1090, 1099-1102 (9th Cir. 2014); Leon v. Berryhill, -- F.3d --, 2017 WL 7 7051119, at *1 (9th Cir. 2018). However, Plaintiff has made no effort to demonstrate that these 8 rare circumstances are present. Thus, even if the Court should find the ALJ committed harmful 9 error, the only appropriate remedy is a remand for further proceedings. However, because 10 substantial evidence supports the ALJ's findings for the reasons discussed above, the Court 11 should affirm. 12 CONCLUSION 13 As the ALJ applied correct the legal standards and supported her decision with substantial 14 evidence, the Court should affirm. 42 U.S.C. § 405(g). 15 16 17 18 19 20 21 22 23 5 As a matter of record, the Commissioner disagrees with the credit-as-true rule. See Vasquez v. 24 Astrue, 572 F.3d 586, 601 (9th Cir. 2009) (amended opinion) (O'Scannlain, J., dissenting). 25 Page 17 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8 1 DATED this 3rd day of August 2018. 2 Respectfully submitted, 3 Bryan Schroder 4 United States Attorney 5 RICHARD L. POMEROY Assistant United States Attorney 6 MATHEW W. PILE 7 Acting Regional Chief Counsel, Seattle, Region X 8 s/Ryan Lu RYAN LU 9 Special Assistant United States Attorney Office of the General Counsel 10 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 11 Seattle, WA 98104-7075 Telephone(206) 615-2034 12 Fax(206) 615-2531 ryan.lu@ssa.gov 13 14 15 CERTIFICATE OF SERVICE 16 I hereby certify that the foregoing Defendant's Response Brief was filed with the Clerk of 17 the Court on August 3, 2018, using the CM/ECF system, which will send notification of such 18 filing to the following: Edward A. Wicklund. 19 20 s/Ryan Lu RYAN LU 21 Special Assistant U.S. Attorney Office of the General Counsel 22 23 24 25 Page 18 DEFENDANT'S RESPONSE BRIEF- [3:18-cv-00007-TMB] 26 8

Appellants Reply Brief

1 Edward A. Wicklund, Esq. Admitted Pro Hac Vice 2 Attorney for Plaintiff 3 Olinsky Law Group 300 South State Street, Suite 420 4 Syracuse, New York 13202 5 Telephone: (315) 701-5780 Fax: (315) 701-5781 6 twicklund@windisability.com 7 8 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ALASKA 9 MARCUS LOYD KING, 10 11 Plaintiff, Case No. 3:18-CV-00007-TMB 12 vs. 13 14 PLAINTIFF'S REPLY BRIEF Nancy A. Berryhill, (SOCIAL SECURITY) 15 Acting Commissioner of Social Security, 16 Defendant 17 18 PLAINTIFF'S REPLY MEMORANDUM OF LAW IN SUPPORT OF A SOCIAL SECURITY APPEAL 19 20 I. ARGUMENT 21 Plaintiff reasserts and relies on the arguments set forth in his opening Brief at Dkt. No. 14 22 and replies to the following particular points raised by the Commissioner in her Responsive Brief 23 at Dkt. No. 19. 24 (1) The ALJ should have afforded Dr. Kropp significant, if not controlling weight. 25 26 The Commissioner contends that the ALJ reasonably rejected the opinions from Dr. 27 Deberard, Dr. Smith, and speech pathologist Ver Hoef. Dkt. No. 19 at 6. However, the 28 Reply Brief (Social Security) Marcus Loyd King v. Berryhill Case No. 3:18-CV-00007-TMB 1 1 Commissioner merely parrots the ALJ's previous rationale, the crux of which boils down to two 2 theories: (1) the opinions were contradicted by nonexamining physicians, and (2) there was an 3 "abundance" of evidence contradicting the treating opinions. Dkt. No. 19 at 6-13. Neither of 4 5 these theories are supported by substantial evidence, and remand is required. 6 The first being that the ALJ was allowed to reject all treating opinions based on their non- 7 examining counterparts. The Commissioner also makes note of Lester v. Chater for the 8 proposition that the Ninth Circuit has upheld some of the Commissioner's decisions based in 9 part on the testimony of a nonexamining medical advisor "in some cases." Dkt. No. 19 at 8 10 11 (citing 81 F.3d 821, 831 (9th Cir. 1995)). The Commissioner further notes that an ALJ may 12 reject a treating opinion by citing a nonexamining opinion coupled with a record that includes 13 "an abundance of evidence that supported the rejection" of the treating opinion. Dkt. No. 19 at 8 14 (citing Id.). However, the only evidence that the Commissioner cites, or can cite, are the 15 nonexamining opinions of Dr. Lebeau and Dr. Arcega. "Non-examining medical opinions may 16 17 serve as substantial evidence supporting an ALJ's decision when 'they are supported by other 18 evidence in the record and are consistent with it.'" Fowler v. Colvin, EDCV 13-1441 JC, 2013 19 WL 6798132, at *5 (C.D. Cal. Dec. 20, 2013) (quoting Morgan v. Comm'r of Soc. Sec., 169 F.3d 20 595, 600 (9th Cir. 1999)). However, when the non-examining physicians base their opinions 21 22 solely on a review of treatment notes provided by treating physicians, "such medical opinions 23 could not serve as substantial evidence supporting the ALJ's rejection of [treating physician's] 24 opinions." Fowler, 2013 WL 6798132, at *5 (citing Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 25 2007) ("When an examining physician relies on the same clinical findings as a treating 26 physician, but differs only in his or her conclusions, the conclusions of the examining physician 27 28 Reply Brief (Social Security) Marcus Loyd King v. Berryhill Case No. 3:18-CV-00007-TMB 2 1 are not 'substantial evidence.'"). The "abundance" of evidence is merely nonexamining 2 physicians creating an alternate interpretation of Plaintiff's condition. These alternate finding 3 are inherently inferior as they lack the context, treating relationship, and longitudinal history 4 5 favored by the regulations. 20 C.F.R. § 404.1527(c). 6 Moving on, the Commissioner cites Plaintiff's activities of daily living as a reason for 7 discounting the treating opinions. While the ALJ provided unexplained examples of Plaintiff's 8 activities of daily living, in no way, shape, or form are these legitimate reasons. "Even if the 9 treating doctor's opinion is contradicted by another doctor, the administrative law judge (ALJ) 10 11 may not reject this opinion without providing specific and legitimate reasons supported by 12 substantial evidence in the record." Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (emphasis 13 added). If a claimant is able to spend a substantial part of his day engaged in pursuits involving 14 the performance of physical functions that are transferable to a work setting, a specific finding as 15 to this fact may be sufficient to discredit a claimant's allegations. Morgan v. Comm'r of Soc. Sec., 16 17 169 F.3d 595, 600 (9th Cir. 1999) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). See 18 Svenneby v. Berryhill, No. SACV 17-00769-AS, 2018 WL 3129788, at *6 (C.D. Cal. June 22, 19 2018) (citing Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) ("[T]he mere fact that a 20 plaintiff has carried on certain daily activities ... does not in any way detract from her credibility 21 22 as to her overall disability. One does not need to be 'utterly incapacitated' in order to be 23 disabled.")). While a plaintiff's ability to spend a "substantial part" of his day engaged in 24 pursuits involving the performance of physical functions that are transferable to a work setting 25 may be sufficient to discredit him, there is no evidence that Plaintiff was spending a substantial 26 part of his day engaged in these activities or that the physical demands of such tasks were 27 28 Reply Brief (Social Security) Marcus Loyd King v. Berryhill Case No. 3:18-CV-00007-TMB 3 1 contrary to the opinions of his treating providers. Svenneby v. Berryhill, No. SACV 17-00769- 2 AS, 2018 WL 3129788, at *6 (C.D. Cal. June 22, 2018) (citing Morgan, 169 F.3d at 600). 3 The Commissioner cites to Magallanes for the proposition that the Court may draw 4 5 reasonable inferences from the ALJ's decision, however, those inferences have to be "there to be 6 drawn." Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). Here, any inferences drawn 7 from the ALJ's noted activities make little to no sense. It is unclear how being driven to and 8 watching his children's hockey games contradicted the ability to lift more than 10 pounds 9 regularly, for 8 hours per day, on a 40 hour per week basis. T 66-67. The same goes for his one- 10 11 time camping trip, where he just watches his father and sons fish. T 80. The ability to perform 12 some physical activity, such as sitting in a hockey rink, does not translate into an ability to 13 perform work 8 hours a day 5 days per week on a sustained basis, and it is well settled that 14 transitory activities such as this cannot be used against Plaintiff in this manner. Fair, 885 F.2d at 15 603 (9th Cir. 1989). See also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citing 16 17 Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987)). Furthermore, even if these were logical in 18 any way, the ALJ is not permitted to lead a reviewing Court on a wild goose chase, but must 19 "build an accurate and logical bridge from the evidence to her conclusions so [a reviewing 20 Court] may afford [Plaintiff] meaningful review of the SSA's ultimate findings." Muheim v. 21 22 Berryhill, No. 2:17-CV-00247-RSM-JRC, 2017 WL 5496169, at *3 (W.D. Wash. Oct. 24, 2017), 23 report and recommendation adopted, No. 2:17-CV-00247-RSM, 2017 WL 5483774 (W.D. 24 Wash. Nov. 15, 2017) (citing Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003)). 25 Further, it should be noted that the Commissioner characterizes the opinions of Drs. 26 DeBerard and Smith as "check-box" medical source statements. Dkt. No. 19 at 7, 10. Affirming 27 28 Reply Brief (Social Security) Marcus Loyd King v. Berryhill Case No. 3:18-CV-00007-TMB 4 1 on this basis invites the Court to engage in post hoc rationalization given that the ALJ did not 2 articulate this reason for rejecting any opinion of record. See Bray v. Comm'r of Soc. Sec. 3 Admin., 554 F.3d 1219, 1225–26 (9th Cir. 2009) (reviewing Courts must reject Commissioner's 4 5 post hoc rationalizations). Moreover, many district courts have recognized that "checkbox" 6 reports are used by and routinely relied upon by the Agency (as the Commissioner relies on Dr. 7 Arcega's check-box report), providing no reason upon which to discount them. See Smith v. 8 Astrue, No. CV-10-0453-CI, 2012 U.S. Dist. LEXIS 126862, at *17, nn. 3 & 4 (E.D. Wash. Sept. 9 6, 2012) (criticizing ALJ decision to accord little weight to a treating physician opinion where 10 11 state agency reviewing physician "used a similar checkbox evaluation form"); White v. Astrue, 12 No. 12-cv-5251-JRC, 2013 U.S. Dist. LEXIS 17005, at *14 (W.D. Wash. Feb. 7, 2013) (same); 13 Matthews v. Astrue, No. EDCV 11-01075-JEM, 2012 U.S. Dist. LEXIS 47903, at *18—*19 14 (C.D. Cal. Apr. 4, 2012) (same). 15 The record demonstrates that there is only one conclusion to this case, and that a remand 16 17 for further administrative proceedings would not be useful. The record provides no reason to 18 remand this case on these issues other than to allow ALJ LaCara another bite at the apple. If the 19 Court fully credits either opinion, it would provide an adequate basis for remanding for payment 20 of benefits under the Ninth Circuit's three-part test. Garrison v. Colvin, 759 F.3d 995, 1020 (9th 21 22 Cir. 2014). The record in this case requires no further development, the ALJ has provided a 23 legally insufficient reason for rejecting either opinion, and, if either were credited as true, ALJ 24 LaCara would be required to find claimant disabled. Id. 25 /// 26 /// 27 28 Reply Brief (Social Security) Marcus Loyd King v. Berryhill Case No. 3:18-CV-00007-TMB 5 1 II. CONCLUSION 2 For the foregoing reasons, it is respectfully requested that this Court remand this matter 3 for payment of benefits, or, in the alternative, for further administrative proceedings, including 4 5 de novo hearing and decision. 6 Date: August 17, 2017 Respectfully submitted, 7 /s/Edward A. Wicklund Edward A. Wicklund, Esq. 8 Admitted Pro Hac Vice 9 Attorney for Plaintiff Olinsky Law Group 10 300 South State Street, Suite 420 Syracuse, New York 13202 11 Telephone: (315) 701-5780 12 Fax: (315) 701-5781 twicklund@windisability.com 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply Brief (Social Security) Marcus Loyd King v. Berryhill Case No. 3:18-CV-00007-TMB 6 1 CERTIFICATE OF SERVICE 2 3 This is to certify that I have this day served counsel for the Defendant with Plaintiff's Reply Memorandum of Law by filing the foregoing on the Court's ECF system, which sent electronic 4 notice to the following recipients: 5 6 Ryan Lu Special Assistant United States Attorney 7 Office of the General Counsel 8 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 9 Seattle, WA 98104-7075 Telephone(206) 615-2034 10 Fax(206) 615-2531 11 Ryan.lu@ssa.gov 12 This 16th day of August, 2018. 13 14 /s/Edward A. Wicklund 15 Edward A. Wicklund, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply Brief (Social Security) Marcus Loyd King v. Berryhill Case No. 3:18-CV-00007-TMB 7

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Description
1
01/10/2018
COMPLAINT against Nancy A. Berryhill, filed by Marcus Loyd King.
1
Exhibit A
1 Attachment
2
01/10/2018
Civil Cover Sheet.
3
01/10/2018
MOTION for Leave to Proceed in forma pauperis by Marcus Loyd King.
4
01/11/2018
Unissued summons re Defendant Nancy A. Berryhill
1
Unissued Summons re Defendant U.S. Attorney General
2
Unissued Summons re Defendant U.S. Attorney
2 Attachments
5
01/12/2018
MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Edward A. Wicklund. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2452237.) by Marcus Loyd King.
1
Certificate of Good Standing
1 Attachment
6
01/24/2018
ORDER DIRECTING SERVICE AND RESPONSE; granting 3 Motion for Leave to Proceed in forma pauperis. service to be completed within 90 days. Clerk to issue summons and sent to counsel. Answer due within 60 days. Signed by Judge Timothy M. Burgess on 1/23/18.
01/24/2018
Summons Issued as to Nancy A. Berryhill, U.S. Attorney and U.S. Attorney General. (Text entry; no document attached.)
7
03/06/2018
NOTICE of Appearance by Richard L. Pomeroy on behalf of Nancy A. Berryhill
8
03/21/2018
SOCIAL SECURITY SCHEDULING ORDER: agency record due 60 days after defendant's initial appearance, opening brief due 30 days, response due 30 days, reply brief due 14 days. Signed by Judge Timothy M. Burgess on 3/21/18.
03/21/2018
Docket Annotation: For the purpose of tracking the briefing as ordered at docket 8, when filing the Opening Brief the attorney shall file the document using the event Motion Miscellaneous Relief and text in the relief being sought. Responsive filings should be filed using the event Response in Opposition to Motion or Response to Motion (Non-Opposition). The reply, if any, shall be filed using the event Reply to Response to Motion. (Text entry; no document attached.)
9
03/21/2018
TMB TEXT ORDER GRANTING 5 Motion for Leave to Appear Pro Hac Vice (Non-Resident) Attorney. IT IS HEREBY ORDERED that the application to appear pro hac vice by Edward A. Wicklund at docket 5 is authorized under D. Ak. L.R. 83.1(d). (JDS, CHAMBERS STAFF)
10
03/22/2018
SUMMONS Returned Executed by Marcus Loyd King. Nancy A. Berryhill served on 3/5/2018, answer due 5/4/2018.
11
03/29/2018
NOTICE of Appearance by Ryan Ta Lu on behalf of Nancy A. Berryhill
12
05/04/2018
ANSWER to 1 Complaint by Nancy A. Berryhill.
13
05/04/2018
Notice of Lodging Administrative Record
1
001 Certification Page
2
002 Court Transcript Index
3
003 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable
4
004 Payment Documents and Decisions
5
005 Jurisdictional Documents and Notices
6
006 Non Disability Related Development
7
007 Disability Related Development
8
008 Medical Records Part 1
9
009 Medical Records Part 2
10
010 Medical Records Part 3
11
011 Medical Records Part 4
12
012 Medical Records Part 5
13
013 Medical Records Part 6
14
014 Medical Records Part 7
14 Attachments
14
06/04/2018
MEMORANDUM of Law in Support of Social Security Appeal by Marcus Loyd King.
06/12/2018
Docket Annotation re 14 Memorandum : Parties are advised the filing at docket 14 was filed using the incorrect event and should disregard. The attorney shall refile using the correct motion event. (Text entry; no document attached.)
15
06/12/2018
MOTION Reversal of agency decision and remand for calculation of benefits or, alternatively, further administrative proceedings with Memorandum in support thereof and Certificate of Service by Marcus Loyd King.
06/12/2018
Docket Annotation (Text entry; no document attached.)
16
07/12/2018
First MOTION for Extension of Time to File Response/Reply as to 15 MOTION Reversal of agency decision and remand for calculation of benefits or, alternatively, further administrative proceedings with Memorandum in support thereof and Certificate of Service Unopposed by Nancy A. Berryhill.
1
Proposed Order
1 Attachment
17
07/12/2018
DECLARATION of Ryan Lu re 16 First MOTION for Extension of Time to File Response/Reply as to 15 MOTION Reversal of agency decision and remand for calculation of benefits or, alternatively, further administrative proceedings with Memorandum in support thereof and Certif by Nancy A. Berryhill.
07/19/2018
Order on Motion for Extension of Time to File Response/Reply (Text entry; no document attached.)
18
07/19/2018
TMB TEXT ORDER GRANTING 16 Unopposed Motion for Extension of Time to File Response/Reply re 15 Motion Reversal of Agency Decision and Remand. IT IS HEREBY ORDERED that Defendant shall have up to and including August 3, 2018 to file their response, and Plaintiff shall have up to and including August 17, 2018 to file a reply. (JDS, CHAMBERS STAFF)
19
08/03/2018
Response in Opposition to Motion
20
08/17/2018
Appellants Reply Brief
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