Labrusciano v. Commissioner of Social Security Administration
Court Docket Sheet

District of Arizona

3:2017-cv-08027 (azd)

COMPLAINT. Filing fee received: $ 400.00, receipt number 0970-13918061 filed by Melissa Dionne Labrusciano. (submitted by Howard Olinsky)

Case 3:17-cv-08027-GMS Document 1 Filed 02/14/17 Page 1 of 8 1 Howard D. Olinsky 2 olinsky Law Group 300 South State Street, Suite 420 3 Syracuse, NY 13202 4 N.Y. Bar No. 2044865 Telephone: (315) 701-5780/Facsimile: (315) 701-5781 5 holinsky@windisability.com 6 Attorney for Plaintiff Melissa Dionne Labrusciano 7 8 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 9 PRESCOTT DIVISION 10 MELISSA DIONNE LABRUSCIANO,)NO. 11 Soc.Sec. #XXX-XX-8463,) 12 Plaintiff,) v.) 13) COMPLAINT 14 NANCY A. BERRYHILL, acting) Commissioner of Social Security, 15) Defendant.) 16) 17 Plaintiff, Melissa Dionne Labrusciano, ~y her attorney, Howard D. Olinsky, 18 alleges as follows: 19 20 1. The jurisdiction of this Court is invoked pursuant to 42 U.S.C. § 405(g) to 21 review a decision of the Commissioner of Social Security denying Plaintiffs application 22 for Social Security Disability Insurance benefits for lack of disability. 23 24 2. This action is an appeal from a final administrative decision denying 25 Plaintiffs claim. 26 3. This action is commenced within the appropriate time period set forth in the 27 28 attached Appeals Council Notice dated December l3, 2016. (Exhibit A). Case 3:17-cv-08027-GMS Document 1 Filed 02/14/17 Page 2 of 8 1 4. Plaintiff, whose social security number is XXX-XX-8463, resides in 2 Congress, Yavapai County, Arizona, which is within this judicial district and division. 3 4 5. The Defendant, Nancy A. Berryhill, is the acting Commissioner of Social 5 Security of the United States of America. 6 6. Plaintiff is disabled. 7 7. The agency committed error of law by denying Appeals Council review of 8 9 the decision by the Administrative Law Judge, or otherwise to deny relief that was within 10 the authority of the Appeals Council. 11 8. The conclusions and findings of fact of the Defendant are not supported by 12 13 substantial evidence and are contrary to law and regulation. 14 WHEREFORE, Plaintiff prays that this Court: 15 1. Find that the Plaintiff is entitled to Social Security Disability Insurance 16 17 benefits under the provisions of the Social Security Act; or 18 2. Remand the case for a further hearing; 19 3. Award attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 20 21 2412, on the grounds that the Commissioner's action in this case was not substantially 22 justified; and 23 4. Order such other and further relief as the Court deems just and proper. 24 25 Dated this 14th day of February, 2017. 26 BY: slHoward D. Dlinsky 27 Howard D. Olinsky, Esq. Attorney for Plaintiff 28 (Pending Admission Pro Hac Vice) EXHIBIT A Case 3:17-cv-08027-GMS Document 1 Filed 02/14/17 Page 4 of 8 Office of Disability Adjudication and RevIeW 5107 leesburg Pike Falls Church, VA 22041-3255 Telephone: (877) 670-2722 Date: December 13,2016 NOTICE OF APPEALS COUNCIL ACTION Ms. Melissa Dionne Labmsciano 1'h.i3 is about your request for review of the Administmtive Law Judge's deci.siOD dat~ June 26~ 201S, We found no reason under OW' rules to review the Administrative Law Judge's decision. Therefore~ we have denied your request for review. This means that the Administrative Law Judgels decision is the t'ina1 d~cision ofthe Commissioner of Sooial Security in your ca8O. We applied the laws, regulations and rulings in effect U ofthe dale we took this action. I Under our rules, we will review your case for any oCthe following reasons: I • 'The Administrative Law Judge appears to have abused bis or her discretion. I,; • The dooision is oot supported by substantial evidence. I • We receive new and material evidence and the decision is oontnuy to the weight of an the evidenOO' now in the record.. SWIped SodaI Security Framl? PIHae vWt http://oIg.ea.gov/r or wI the Impeder Ge.nI's:rn_ Bodine ~t t--lOO-Z6'..ol71 (TTY 1-166-501.11(1),. Case 3:17-cv-08027-GMS Document 1 Filed 02/14/17 Page 5 of 8 Melissa Diorme Labrusciano _8463) Page2of4 What We Colllldered In looking at your cue, we COl18idered the tea80JlS you disagree with tile decision and the additional ovidcnoe listed on the onolosod Order of Appeals Counoo. We found that this information does not provide a basis for changing the Administrative Law-Judge's decision. We also looked at neuropsychological evaluation by Ray I...emberg, Ph.D., dated December 21, 201S (10 pages). The Administrative Law.Judge decided your ease through Juno 26, 201S. This new information is about a later time. '11leI'efore, it does nOlI aifed the decision about whether you were disabled beginning on or before JuDe 26, 20 IS. lfyou want us to CODBider whether you weco disabled after June 26, lOIS, you need to apply again. We are returning the evidence to you to Ulle in your new claim. If you file a new claim for disability insurance benefits within 6 months after you receive this letter, we eaD.WIO luly 23, 2015. the date of your rcqucst for review, u tho date of your new claim The date you file a claim can IIUIlce a difference in the amount of benefits we OlD pay. You have the right to file a new application at any time, but filing a DOW application i. not the ume as appealing our action. Jfyou di~ with our action and file a new appJ.ication instead of appea1in& you might lose some benefits or not qualifY for any benefits. So, ifyou disagree with our aeb.0I\ you should file an appeal within 60 days. If You DIBapee With Our AdIoD Ifyou disagree with our aeti~ you may uk for court review of the Administrative Law Judge's decision by filing a civil action. Ifyou do nOlI _ for court review, the Adminisfnlive Law Judge's decision will be a final decision that can be changed only under special rules. Dow to F. a CIvD AeUon You may rdc a civil action (ask. fur court review) by filing a oomplaint in the United States Dislrid. Court for the judicial district in which you live. The complaint should name the Commissioner of Social Security as the defendant and should include the Social Security number(s) shown attbctop ortbis lett«. You or your representative must deliver copies of your complaint and oftbe suttmoas issued by the court to the U.S. Attorney for the judicial district where you file your complaint. as provided in mle 4(i) of tile Fcdcnd Rules of Civil Procedure. See Next Page Case 3:17-cv-08027-GMS Document 1 Filed 02/14/17 Page 6 of 8 Melissa Dionne Labrusciano ~3) PageJof4 II You or your representative must also send copies of tile complaint and summons, by certified-•• Ii or registered. mail, to the Social Security Administration'. Oflice ofthe General Counsel that is responsible for the processing and handling of litigation in the particular judicial dislrict in whim the CX>Dlplaint is filed. The DIUDCB. addre88C8, andjwisdictional responsibilities ofthCBO--•= II! offices are published in the Federal Register (70 FR 73320, December 9, 2005), and are available on-line at the Social Security Administration's Internet site. •-httg:l/poliey,sSLgov/poms,nsf7lioksl020310602Q...-•-!II! You or your representative must also seod Copi08 of tile complaint and summons, by cstified or registered maiL to the Attorney Ge:oeral ofthe United States, Washington. IX: 2OS30•-•• II.... Tillie To Jlile • CMI Adion • You have 60 days to fale a civil action (ask. for court review). •-II • The 60 days start the day after you receive this letter. We aBlUme you received this letter 5 days after the date on it unless you show us that you did not receive it within the '-day-•--•--=== period. • Ifyou cannot file for cowt review within 60 days, you may ask 1he Appeals Council to extend your time to fde. Yon must have a good reason for waiting more than 60 days to ask for court review. You must make the request in writing and give your ~n(s) in the request... You must mail your request for more time to the Appeals Council at the address shown at the top ofthis notice. Please put the Social Security number(s) also shown at the top oftma notice on your request. We will send you a letter telling you whether your rcqu.cst for more I time bas been grauted. I I The right to court review for olaims VPder Title n (Social Seourity) is provided for in Section 20S(g) of the Social Security Act. This section is also SectiOll40S(g) ofTttle 42 of the United I States Code. The right to court review for claims unc:Ier Title XVI (Supplemental Security Income) is provided for in Section 1631(cX3) of the Social Security Act. This section is also Section •! 1383(c) of Title 42 ofthe United States Code. The rules on filing civil actions are Rules 4(c) and (i) in the Federal Rules of Civil Procedure....-If You Have Any QuatioDl If you have any questioos1 you may call, write, or visit any Social Security office. If you do call or visit an office, please have 1bis notice with you. The telephone number of the local---officetbat serves your area is (877)457-1733. Its address is: See Next Page Case 3:17-cv-08027-GMS Document 1 Filed 02/14/17 Page 7 of 8 Melissa Dionne Labrusciano ~3) Page4of4 80ciaI Security 20S North Mariaa PRseott, AZ 86301-3105 EDolOSUl'O: Order of AppoaIs Council cc: Bradford D. Myler P.O. Box 127 Lebi, UT 84043"()127 Case 3:17-cv-08027-GMS Document 1 Filed 02/14/17 Page 8 of 8----II I.....I Social Security Administration OFFICE OF DISABU1TY ADJUDICATION AND REVIEW ORDER OF APPEALS L"UUNCn. IN THE CASE OF CLAIM FOR-Ii-Period of Disability II Disability Insurance Benefits II (Claimant) = Ii II (Wage Eamei") (Social Security Number) E II-... II II The Appeals Council has received additional evideuQe which it is making part of tile re<:ord. 'I'hat evidence consists of the following emibits: Ii Exhibit2IE Representative Brief dated July 23. 20 I S I Date: December 13, 2016 I i,; II!

Civil Cover Sheet

Case 3:17-cv-08027-GMS Document 1-1 Filedhttp://www.azd.uscoUlis.gov/cgi-bin/generate_civiljs44.pi 02/14/17 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Civil Cover Sheet This automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference of the United States in September 1974. The data is required forthe use of the Clerk of Court for the purpose of initiating the civil docket sheet. The information contained herein neither replaces nor supplements the filing and service of pleadings or other papers as required by law. This form is authorized for use Q!!)y in the District of Arizona. The completed cover sheet must be printed directly to PDF and filed as an attachment to the Complaint or Notice of Removal. Plaintiff(s): Melissa Dionne Labrusciano Defendant(s): County of Residence: Yavapai County of Residence: Yavapai County Where Claim For Relief Arose: Yavapai Plaintiffs Atty(s): Defendant's Atty(s): Howard D. Olinsky, Esq. Olin sky Law Group 300 S. State Street, Ste. 420 Syracuse, New York 13202 3157015780 II. Basis of Jurisdiction: 2. U.S. Government Defendant III. Citizenship of Principal Parties (Diversity Cases Only) Plaintiff:-N/A Defendant:-N/A IV. Origin: 1. Original Proceeding V. Nature of Suit: 863 mWCIDIWW (405(g») VLCause of Action: 42 USC 405(g): Denial of Social Security Disability Insurance benefits. VII. Requested in Complaint Class Action: No Dollar Demand: Jury Demand: No VIII. This case is not related to another case. Signature: s/Howard D. Olinsky Date: 02/1412017 If any of this information is incorrect, please go back to the Civil Cover Sheet Input form using the Back button in your browser and change it. Once correct, save this form as a PDF and include it as an attachment to your case opening documents. Revised: 01/2014 ofl 2114/2017 11:52 AM

Letter

Case 3:17-cv-08027-GMS Document 1-2 Filed 02/14/17 Page 1 of 1 February 14, 2017 Via CM/ECF Clerk, U.S. District Court District of Arizona 401 W. Washington St., Suite 130, SPC 1 Phoenix, AZ 85003-2118 Re: Labrusicano v. Berryhill Complaint Filing Social Security Proceeding Dear Sir/Madam: Enclosed please find the complaint, civil cover sheet, and proposed summonses to be filed in the above-referenced matter. If anything further is needed, kindly advise. Respectfully,/s/Howard D. Olinsky _____________________ Howard D. Olinsky, Esq. Attorney for Plaintiff HDO/mps

SUMMONS Submitted by Melissa Dionne Labrusciano. (submitted by Howard Olinsky)

Case 3:17-cv-08027-GMS Document 2 Filed 02/14/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona))) MELISSA DIONNE LABRUSCIANO) 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) Office of the Regional Chief Counsel, Region X Social Security Administration 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: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date:-------------------Signature of Clerk or Deputy Clerk Case 3:17-cv-08027-GMS Document 2 Filed 02/14/17 Page 2 of 2 AO 440 (Rev. 06112) 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 (I)) 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 o I served the summons on (name of individual),who is designated by law to accept service of process on behalf of (name of organization) on (date); or----------------------------------------------o I returned the summons unexecuted because; or o Other (specifY): My fees are $ for travel and $ for services, for a total of $ 0.00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

Summons

Case 3:17-cv-08027-GMS Document 2-1 Filed 02/14/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona))) MELISSA DIONNE LABRUSCIANO) 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: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature afClerk ar Deputy Clerk Case 3:17-cv-08027-GMS Document 2-1 Filed 02/14/17 Page 2 of 2 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 (I)) This summons for (name a/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----------------o I served the summons on (name 0/individual),who is designated by law to accept service of process on behalf of (name 0/organization) on (date);or------------------------------------------------o I returned the summons unexecuted because; or o Other (specify): My fees are $ for travel and $ for services, for a total of $ 0.00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

Summons

Case 3:17-cv-08027-GMS Document 2-2 Filed 02/14/17 Page 1 of 2 AO 440 (Rev. 06112) Summons in a Civil Action U-NITED STATES DISTRICT COURT for the District of Arizona))) MELISSA DIONNE LABRUSCIANO) 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's Office District of Arizona Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, AZ 85004-4408 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it)-or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3)-you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature afClerk ar Deputy Clerk Case 3:17-cv-08027-GMS Document 2-2 Filed 02/14/17 Page 2 of 2 AO 440 (Rev. 06112) 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 (/)) This summons for (name a/individual and title, ifany) 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 o I served the summons on (name a/individual),who is designated by law to accept service of process on behalf of (name 0/organization) on (date); or o I returned the summons unexecuted because; or o Other (specifY): My fees are $ for travel and $ for services, for a total of $ 0.00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

Filing fee paid, receipt number 0970-13918061. This case has been assigned to the Honorable G Murray Snow. All future pleadings or documents should bear the correct case number: CV-17-08027-PCT-GMS. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached.

Case 3:17-cv-08027-GMS Document 3 Filed 02/14/17 Page 1 of 1 AO 85 (Rev. 8/97) Notice, Consent, and Order of Reference-Exercise of Jurisdiction by a United States Magistrate Judge (For Use In Civil Cases With District Judge as Presider) UNITED STATES DISTRICT COURT _______________________________ District of __________________________________________________ NOTICE, CONSENT, AND ORDER OF REFERENCE-Plaintiff EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE v. Case Number: Defendant NOTICE OF AVAILABILITY OF A UNITED STATES MAGISTRATE JUDGE TO EXERCISE JURISDICTION In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P.73, you are hereby notified that a United States magistrate judge of this district court is available to conduct any or all proceedings in this case including a jury or nonjury trial, and to order the entry of a final judgment. Exercise of this jurisdiction by a magistrate judge is, however, permitted only if all parties voluntarily consent. You may, without adverse substantive consequences, withhold your consent, but this will prevent the court’s jurisdiction from being exercised by a magistrate judge. If any party withholds consent, the identity of the parties consenting or withholding consent will not be communicated to any magistrate judge or to the district judge to whom the case has been assigned. An appeal from a judgment entered by a magistrate judge shall be taken directly to the United States court of appeals for this judicial circuit in the same manner as an appeal from any other judgment of a district court. CONSENT TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case hereby voluntarily consent to have a United States magistrate judge conduct any and all further proceedings in the case, including the trial, order the entry of a final judgment, and conduct all post-judgment proceedings. Signatures Party Represented Date _____________________________________ __________________________________ ____________________ _____________________________________ __________________________________ ____________________ _____________________________________ __________________________________ ____________________ _____________________________________ __________________________________ ____________________ ORDER OF ASSIGNMENT IT IS HEREBY ORDERED that this case be assigned to ______________________________________________________ United States Magistrate Judge, for all further proceedings and the entry of judgment in accordance with 28 U.S.C. 636(c), Fed.R.Civ.P. 73 and the foregoing consent of the parties. All further documents filed with the court are to carry the following case number ________________________________________. ________________ _____________________________________________________________________________________ Date United States District Judge NOTE: RETURN THIS FORM TO THE CLERK OF THE COURT ONLY IF ALL PARTIES HAVE CONSENTED ON THIS FORM TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE.

Summons Issued as to Commissioner of Social Security Administration, U.S. Attorney and U.S. Attorney General.

Case 3:17-cv-08027-GMS Document 4 Filed 02/14/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona))) MELISSA DIONNE LABRUSCIANO) 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) Office of the Regional Chief Counsel, Region X Social Security Administration 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: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date:-------------------Signature of Clerk or Deputy Clerk ISSUED ON 3:57 pm, Feb 14, 2017 s/Brian D. Karth, Clerk Case 3:17-cv-08027-GMS Document 4 Filed 02/14/17 Page 2 of 2 AO 440 (Rev. 06112) 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 (I)) 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 o I served the summons on (name of individual),who is designated by law to accept service of process on behalf of (name of organization) on (date); or----------------------------------------------o I returned the summons unexecuted because; or o Other (specifY): My fees are $ for travel and $ for services, for a total of $ 0.00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

Summons

Case 3:17-cv-08027-GMS Document 4-1 Filed 02/14/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona))) MELISSA DIONNE LABRUSCIANO) 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: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature afClerk ar Deputy Clerk ISSUED ON 3:57 pm, Feb 14, 2017 s/Brian D. Karth, Clerk Case 3:17-cv-08027-GMS Document 4-1 Filed 02/14/17 Page 2 of 2 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 (I)) This summons for (name a/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----------------o I served the summons on (name 0/individual),who is designated by law to accept service of process on behalf of (name 0/organization) on (date);or------------------------------------------------o I returned the summons unexecuted because; or o Other (specify): My fees are $ for travel and $ for services, for a total of $ 0.00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

Summons

Case 3:17-cv-08027-GMS Document 4-2 Filed 02/14/17 Page 1 of 2 AO 440 (Rev. 06112) Summons in a Civil Action U-NITED STATES DISTRICT COURT for the District of Arizona))) MELISSA DIONNE LABRUSCIANO) 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's Office District of Arizona Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, AZ 85004-4408 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it)-or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3)-you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature afClerk ar Deputy Clerk ISSUED ON 3:58 pm, Feb 14, 2017 s/Brian D. Karth, Clerk Case 3:17-cv-08027-GMS Document 4-2 Filed 02/14/17 Page 2 of 2 AO 440 (Rev. 06112) 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 (/)) This summons for (name a/individual and title, ifany) 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 o I served the summons on (name a/individual),who is designated by law to accept service of process on behalf of (name 0/organization) on (date); or o I returned the summons unexecuted because; or o Other (specifY): My fees are $ for travel and $ for services, for a total of $ 0.00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

ORDER directing the Clerk of Court to terminate any or all Defendants in this matter, without further notice, that have not been served within the time required by Fed. R. Civ. P. 4(m) on 5/16/2017. Signed by Judge G Murray Snow on 2/15/2017.

Case 3:17-cv-08027-GMS Document 5 Filed 02/15/17 Page 1 of 2 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Melissa Dionne Labrusciano, No. CV-17-08027-PCT-GMS 10 Plaintiff, ORDER/NOTICE PURSUANT TO FED. R. CIV. P. 4(m) 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 The Federal Rules of Civil Procedure and the Local Rules of Civil Procedure 16 apply to all proceedings in this case. Pursuant to Rule 4(m) of the Federal Rules of Civil 17 Procedure, you must serve each Defendant in your case with the Summons and 18 Complaint within 90 days from the date the Complaint is filed, unless you obtain a 19 waiver of service pursuant to the requirements of Fed. R. Civ. P. 4(d). If, for good 20 reason, you cannot serve your Summons and Complaint on a Defendant within 90 days, 21 you may, prior to the expiration of the 90-day period, file with the Court a request for an 22 extension of time in which to serve your Summons and Complaint. In that request, you 23 should set forth the reason why you have not accomplished service and request a specific 24 short period of time in which to accomplish such service on any Defendant. If the Court 25 believes your reason constitutes "good cause" it will authorize a brief additional period in 26 which you can then serve the Defendant. 27 If you do not obtain an extension and any Defendant named in your Complaint is 28 not served within 90 days, the Court is obliged, after notice to you, to dismiss the Case 3:17-cv-08027-GMS Document 5 Filed 02/15/17 Page 2 of 2 1 Complaint without prejudice (meaning that your Complaint is dismissed but you may 2 refile the Complaint in a new action if you wish to do so). 3 The way that the Court knows that you have served the Defendant is that, the 4 person who serves the Defendant with the Summons and Complaint is required, 5 according to the rules, to file an affidavit with the Court which proves that the Defendant 6 was served in compliance with Fed. R. Civ. P. 4(l). Therefore, you need to be sure that, 7 prior to 90 days from the date on which you filed your Complaint, whoever serves the 8 Summons and Complaint on each Defendant files an affidavit with this Court 9 demonstrating that they accomplished proper service. 10 THIS CONSTITUTES YOUR NOTICE UNDER RULE 4(m) THAT IF YOU HAVE NOT APPROPRIATELY SERVED ANY 11 DEFENDANT WITHIN 90 DAYS FROM THE FILING OF YOUR COMPLAINT THAT DEFENDANT WILL BE DISMISSED 12 WITHOUT PREJUDICE FROM YOUR LAWSUIT. 13 IT IS HEREBY ORDERED directing the Clerk of Court to terminate any or all 14 Defendants in this matter, without further notice, that have not been served within the 15 time required by Fed. R. Civ. P. 4(m) on May 16, 2017. 16 Dated this 15th day of February, 2017. 17 18 19 Honorable G. Murray Snow 20 United States District Judge 21 22 23 24 25 26 27 28-2-

SOCIAL SECURITY SCHEDULING ORDER: See Order for deadlines and details. Signed by Judge G Murray Snow on 2/15/2017.

Case 3:17-cv-08027-GMS Document 6 Filed 02/15/17 Page 1 of 3 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Melissa Dionne Labrusciano, No. CV-17-08027-PCT-GMS 10 Plaintiff, SOCIAL SECURITY SCHEDULING ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff brings this action for review of the determination of the Commissioner of 16 the Social Security Administration (the "Commissioner"). The Clerk of Court assigned 17 this case to the expedited track pursuant to Local Rule of Civil Procedure 18 16.2(b)(1)(A)(i). Pursuant to LRCiv 16.2(b)(1)(B), the Court issues this Scheduling 19 Order without holding a scheduling conference. 20 Accordingly, 21 IT IS ORDERED that the parties must fully comply with the following deadlines 22 and procedures: 23 I. Briefing Requirements Contained in LRCiv 16.1. The parties must fully 24 comply with LRCiv 16.1 in its entirety and must strictly comply with the following 25 requirements: 26 (a) Opening Brief. Within sixty (60) days after the answer is filed, Plaintiff must file an opening brief addressing 27 why the Commissioner’s decision is not supported by substantial evidence or why the decision should otherwise be 28 reversed or the case remanded. Plaintiff’s opening brief must set forth all errors which Plaintiff contends entitle him or her Case 3:17-cv-08027-GMS Document 6 Filed 02/15/17 Page 2 of 3 1 to relief. The brief must also contain, under appropriate headings and in the order indicated below, the following: 2 (1) A statement of the issues presented for review, set forth 3 in separate numbered paragraphs. 4 (2) A Statement of the Case. This statement should indicate briefly the course of the proceedings and its disposition at the 5 administrative level. 6 (3) A Statement of Facts. This statement of the facts must include Plaintiff’s age, education, and work experience; a 7 summary of the physical and mental impairments alleged; a brief outline of the medical evidence; and a brief summary of 8 other relevant evidence of record. Each statement of fact must be supported by reference to the page in the record 9 where the evidence may be found. 10 (4) An argument. The argument, which may be preceded by a summary, must be divided into sections separately treating 11 each issue. Each contention must be supported by specific reference to the portion of the record [by reference to 12 specific page numbers] relied upon and by citations to statutes, regulations, and cases supporting Plaintiff’s 13 position. If any requested remand is for the purpose of taking additional evidence, such evidence must be described in the 14 opening brief, and Plaintiff’s argument must show that the additional evidence is material and that there is good cause 15 for the failure to incorporate such evidence into the record in a prior proceeding. If such additional evidence is in the form 16 of a consultation examination sought at Government expense, Plaintiff’s opening brief must make a proffer of the nature of 17 the evidence to be obtained. 18 (5) A Short Conclusion Stating the Relief Sought. 19 (b) Answering Brief. Defendant must file an answering brief within thirty (30) days after service of Plaintiff’s 20 opening brief. Defendant’s brief must (1) respond specifically to each issue raised by Plaintiff and 21 (2) conform to the requirements set forth above for Plaintiff’s brief, except that a statement of the issues, a 22 statement of the case and a statement of the facts need not be made unless Defendant is dissatisfied with Plaintiff’s 23 statement thereof. 24 (c) Reply Brief. Plaintiff may file a reply brief within fifteen (15) days after service of Defendant’s brief. 25 (d) Length of Briefs. Unless otherwise ordered by the 26 Court, the opening and answering briefs may not exceed twenty-five (25) pages, including any statement of facts, with 27 the reply brief limited to eleven (11) pages. The case will be deemed submitted as of the date on which Plaintiff’s reply 28 brief is filed or due.-2-Case 3:17-cv-08027-GMS Document 6 Filed 02/15/17 Page 3 of 3 1 (e) Oral Argument. If either party desires oral argument, it must be requested in the manner prescribed by Rule 7.2(f) of 2 the Local Rules of Civil Procedure upon the filing of the opening brief. Whether to allow oral argument is at the 3 discretion of the Court. 4 LRCiv 16.1(a)–(e) (emphasis added). 5 II. Warnings 6 In Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), the Court of Appeals 7 explained that the Commissioner’s decision to deny benefits would be overturned "only if 8 it is not supported by substantial evidence or is based on legal error." Correspondingly, 9 under our Local Rules, a general allegation that the Commissioner committed legal error, 10 or that the Commissioner’s determination is not supported by substantial evidence, is 11 insufficient to raise that issue for review. See Greenwood v. FAA, 28 F.3d 971, 977 (9th 12 Cir. 1994) (internal citation omitted) ("We review only issues which are argued 13 specifically and distinctly in a party’s opening brief. We will not manufacture arguments 14 for an appellant, and a bare assertion does not preserve a claim...."). Accordingly, if 15 either party fails to timely file a brief in full compliance with this Order, the Court may 16 strike the non-complying brief, dismiss the case, or remand to the agency, as appropriate. 17 See generally Fed. R. Civ. P. 41(b). 18 Dated this 15th day of February, 2017. 19 20 21 Honorable G. Murray Snow United States District Judge 22 23 24 25 26 27 28-3-

MOTION for Admission Pro Hac Vice as to attorney Howard D. Olinsky by Melissa Dionne Labrusciano.

Case 3:17-cv-08027-GMS Document 7 Filed 02/21/17 Page 1 of 4,1 7+(81,7(' 67$7(6 ',675,&7 &2857)25 7+(',675,&7 2) $5,=21$ MELISSA DIONNE LABRUSCIANO 3ODLQWLII V 3HWLWLRQHU V &$6(12 3:17-cv-08027-GMS YV NANCY A. BERRYHILL, ACTING $SSOLFDWLRQ RI $WWRUQH\)RU $GPLVVLRQ 7R 3UDFWLFH 3UR +DF COMMISSIONER OF SOCIAL SECURITY 9LFH 3XUVXDQW WR/5&LY " #! stances on a separate page. ✔ *! 0!! # # 1 2 $!% ✔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³/RFDO 5XOHV´ DQG ZLOO VXEVFULEH WR UHFHLYH FRXUW QRWLFHV DV UHTXLUHG E\/5&LY ent 7 Filed 02/21/17 Page 2 of 4 Attachment to Application of Attorney For Admission To Practice Pro Hac Vice Pursuant to LRCiv 83.1(b)(2) I, Howard D. Olinsky, am admitted to practice before the following courts: Court Date of Admission In Good Standing? New York State 02/07/1986 YES State of Georgia 01/23/2014 YES United States Supreme Court 04/01/1991 YES Court of Appeals for 2nd Circuit 11/01/2002 YES Court of Appeals for 6th Circuit 10/15/2013 YES Court of Appeals for 11th Circuit 4/4/2016 YES Court of Appeals for Federal Circuit 06/12/2007 YES U.S. Court of Veteran’s Appeals, Washington D.C. 06/12/2007 YES U.S.D.C., NDNY 04/22/1986 YES U.S.D.C., WDNY 01/29/2001 YES U.S.D.C., EDNY 03/21/2003 YES U.S.D.C., SDNY 03/25/2003 YES U.S.D.C., DCT 12/10/2010 YES U.S.D.C., NDFL 10/31/2011 YES U.S.D.C., EDMI 02/25/2013 YES U.S.D.C., WDMI 12/26/2013 YES U.S.D.C., EDTX 12/20/2013 YES U.S.D.C., EDAR 01/03/2014 YES U.S.D.C., WDAR 01/03/2014 YES U.S.D.C., MDGA 01/28/2014 YES U.S.D.C., NDIL 01/30/2014 YES U.S.D.C., NDGA 02/10/2014 YES U.S.D.C., EDWI 04/14/2014 YES U.S.D.C., NDTX 05/15/2014 YES U.S.D.C., DCO 06/18/2014 YES U.S.D.C., SDGA 06/02/2014 YES U.S.D.C., WDWI 07/03/2014 YES U.S.D.C., WDTX 09/15/2014 YES U.S.D.C., NDIN 08/04/2015 YES U.S.D.C., CDIL 09/24/2015 YES U.S.D.C., SDIL 09/25/2015 YES Case 3:17-cv-08027-GMS Document 7 Filed 02/21/17 Page 3 of 4 Attachment to Application of Attorney For Admission To Practice Pro Hac Vice Pursuant to LRCiv 83.1(b)(2) Previous pro hac vice applications within previous twelve months: 2:15-cv-01928 Fernandez v. Colvin Granted 10/2/2015 2:15-cv-02199 Greenfield v. Colvin Granted 11/24/2015 2:15-cv-02439 Secor v. Colvin Granted 12/08/2015 2:15-cv-02528 Jones v. Colvin Granted 12/21/2015 3:16-cv-08017 Kinnex v. Colvin Granted 2/9/2016 3:16-cv-08023 Simpson v. Colvin Granted 2/12/2016 2:16-cv-00372 Thompson v. Colvin Granted 2/16/2016 2:16-cv-01072 Antunez v. Colvin Granted 4/22/2016 2:16-cv-01392 Dallas v. Colvin Granted 5/17/2016 2:16-cv-01460 Vosskuhler v. Colvin Granted 5/17/2016 4:16-cv-00464 Servia v. Colvin Granted 7/15/2016 2:16-cv-02430 Carlson v. Colvin Granted 8/02/2016 2:16-cv-02699 Shepherd v. Colvin Granted 8/16/2016 2:16-cv-02840 Eveland v. Colvin Granted 8/25/2016 2:16-cv-03391 Sesco v. Colvin Granted 10/12/2016 2:16-cv-04047 Shaffer v. Colvin Granted 12/01/2016 3:17-cv-08022 Gideon v. Berryhill Granted 2/17/2017 Case 3:17-cv-08027-GMS Document 7 Filed 02/21/17 Page 4 of 4 AO 136 (Rev. 10/13) Certificate of Good Standing UNITED STATES DISTRICT COURT for the Northern District of New York CERTIFICATE OF GOOD STANDING I, Lawrence K. Baerman, Clerk of this Court, certify that HOWARD D. OLINSKY, Bar # 102297, was duly admitted to practice in this Court on April 22, 1986, and is in good standing as a member of the Bar of this Court. Dated at Syracuse, New York on January 30, 2017 (Location) (Date) Lawrence K. Baerman CLERK DEPUTY CLERK

Letter to Clerk

Case 3:17-cv-08027-GMS Document 7-1 Filed 02/21/17 Page 1 of 1 February 21, 2017 Via CM/ECF Clerk, U.S. District Court Attn: Attorney Admissions Clerk 401 W. Washington St., Suite 130 Phoenix, AZ 85003 Re: 3:17-cv-08027-GMS Labrusciano v. Berryhill Application for Admission Pro Hac Vice Dear Sir/Madam: Enclosed please find my application for admission pro hac vice and certificate of good standing. A check for the filing fee has been mailed to your office. If anything further is needed, kindly advise. Respectfully,/s/Howard D. Olinsky _____________________ Howard D. Olinsky, Esq. Attorney for Plaintiff HDO/mps

SERVICE EXECUTED filed by Melissa Dionne Labrusciano: Return of Service re: Summons, Complaint and Scheduling Order upon US Attorney's Office, Office of General Counsel, Attorney General on 3/13/2017.

Case 3:17-cv-08027-GMS Document 9 Filed 03/21/17 Page 1 of 6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MELISSA DIONNE LABRUSCIANO,) Plaintiff,) AFFIDAVIT OF) MAILING V®)) Civil Action No.: NANCY A. BERRYHILL, ACTING) 3:17-cv-08027-GMS COMMISSIONER OF SOCIAL SECURITY,) Defendant.)) STATE OF NEW YORK))ss. COUNTY OF ONONDAGA) Michelle E. Callahan, being duly sworn, deposes and says: That deponent is not a party to the action, is over 18 years of age and a Paralegal in the office of Olinsky Law Group, at: One Park Place, 300 S. State Street, Ste. 420, Syracuse, New York 13202 That on March 7, 2017, deponent served the SUMMONS AND COMPLAINT AND SOCIAL SECURITY SCHEDULING ORDER Upon, United States Attorney's Office, District of Arizona, 2 Renaissance Sq., 40 N. Central Ave. Suite 1200, Phoenix, AZ 85004, address designated by said individual(s)/attomey(s) for that purpose by depositing same in a First Class, certified, return receipt, properly address envelope under the exclusive care and custody of the United States Postal Services within New York State. k Michelle E. Callahan Sworn to before me on March 7, 2017./COMMISSIONER OF DEEDS TAMICA LOCKWOOD Commissioner of Deeds Onondaga County. New York My Commission Expires: Dec. 31, _ Case 3:17-cv-08027-GMS Document 9 Filed 03/21/17 Page 2 of 6 Date Produced: 03/13/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0031 7094 40. Our records indicate that this item was delivered on 03/10/2017 at 01:11 p.m. in PHOENIX, AZ 85004. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local post office or Postal Service representative. Sincerely, United States Postal Service Information in this section provided by Walz Group, LLC. Recipient Information: Civil Process Clerk United States Attorney's Office District of Arizona 2 Renaissance Sq., 40 N. Central Ave. Suite 1200 Phoenix,AZ 85004 Reference Number: Labrusciano, M USAO Case 3:17-cv-08027-GMS Document 9 Filed 03/21/17 Page 3 of 6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MELISSA DIONNE LABRUSCIANO,) Plaintiff,) AFFIDAVIT OF) MAILING v.)) Civil Action No.: NANCY A. BERRYHILL, ACTING) 3:17-cv-08027-GMS COMMISSIONER OF SOCIAL SECURITY,) Defendant.)) STATE OF NEW YORK))ss. COUNTY OF ONONDAGA) Michelle E. Callahan, being duly sworn, deposes and says: That deponent is not a party to the action, is over 18 years of age and a Paralegal in the office of Olinsky Law Group, at: One Park Place, 300 S. State Street, Ste. 420, Syracuse, New York 13202 That on March 7, 2017, deponent served the SUMMONS AND COMPLAINT AND SOCIAL SECURITY SCHEDULING ORDER Upon, Office of the Regional Chief Counsel, Region X, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA, 98104-7075, address designated by said individual(s)/attorney(s) for that purpose by depositing same in a First Class, postage paid, certified, return receipt, properly address envelope under the exclusive care and custody of the United States Postal Services within New York State. Sworn to before me on March 7, 2017. COMMISSIONER OF DEEDS TAMICA LOCKWOOD Commissioner of Deeds Onondaga County, New York My Commission Expires: Dec. 31, _ Case 3:17-cv-08027-GMS Document 9 Filed 03/21/17 Page 4 of 6 Date Produced: 03/13/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0031 7095 18. Our records indicate that this item was delivered on 03/10/2017 at 11:49 a.m. in SEATTLE, WA 98104. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local post office or Postal Service representative. Sincerely, United States Postal Service Information in this section provided by Walz Group, LLC. Recipient Information: Office of Regional Chief Counsel Region X, SSA 701 Fifth Avenue, Suite 2900 M/S 221A Seattle,WA 98104 Reference Number: Labrusciano, M OGC Case 3:17-cv-08027-GMS Document 9 Filed 03/21/17 Page 5 of 6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA) MELISSA DIONNE LABRUSCIANO,) Plaintiff,) AFFIDAVIT OF) MAILING v.)) Civil Action No.: NANCY A. BERRYHILL, ACTING) 3:17-cv-08027-GMS COMMISSIONER OF SOCIAL SECURITY,) Defendant.) STATE OF NEW YORK))ss. COUNTY OF ONONDAGA) Michelle E. Callahan, being duly sworn, deposes and says: That deponent is not a party to the action, is over 18 years of age and a Paralegal in the office of Olinsky Law Group, at: One Park Place, 300 S. State Street, Ste. 420, Syracuse, New York 13202 That on March 7, 2017, deponent served the SUMMONS AND COMPLAINT AND SOCIAL SECURITY SCHEDULING ORDER Upon, U.S. Attorney General, Constitution Avenue and 10th St., N.W., Washington, D.C. 20530, address designated by said individual(s)/attomey(s) for that purpose by depositing same in a First Class, certified, return receipt, postage paid, properly address envelope under the exclusive care and custody of the United States Postal Services within New York State. Michelle E. Callahan Sworn to before me on March 7, 2017. 2^ ^/COMMISSIONER OF DEEDS TAMICA LOCKWOOD Commissioner of Deeds Onondaga County, New York My Commission Expires: Dec. 31, ^ Case 3:17-cv-08027-GMS Document 9 Filed 03/21/17 Page 6 of 6 Date Produced: 03/20/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0031 7095 56. Our records indicate that this item was delivered on 03/13/2017 at 05:09 a.m. in WASHINGTON, DC 20530. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local post office or Postal Service representative. Sincerely, United States Postal Service Information in this section provided by Walz Group, LLC. Recipient Information: U.S. Attorney General Constitution Avenue & 10th St., N.W. Washington,DC 20530 Reference Number: Labrusciano, M AG

NOTICE of Appearance by Daphne Banay on behalf of Commissioner of Social Security Administration.

Case 3:17-cv-08027-GMS Document 10 Filed 04/19/17 Page 1 of 3 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Daphne Banay 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA21537 8 Fax: (206) 615-2531 daphne.banay@ssa.gov 9 Telephone: (206) 615-2113 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Melissa Dionne Labrusciano, No. CV-17-8027-PCT-GMS 14 15 Plaintiff, 16 DEFENDANT’S NOTICE OF vs. APPEARANCE 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 PLEASE TAKE NOTICE that Defendant Commissioner of Social Security 22 23 hereby notifies Plaintiff and this Court that the following Special Assistant U.S. 24 Attorney will appear as counsel of record in the above-captioned case: 25 26 27 28 Case 3:17-cv-08027-GMS Document 10 Filed 04/19/17 Page 2 of 3 1 Daphne Banay Special Assistant United States Attorney 2 Office of the General Counsel 3 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 4 Seattle, WA 98104-7075 5 State Bar No. WA21537 Fax: (206) 615-2531 6 daphne.banay@ssa.gov Telephone: (206) 615-2113 7 8 DATED this 19th day of April 2017. 9 Respectfully submitted, 10 11 ELIZABETH A. STRANGE Acting United States Attorney 12 District of Arizona 13 s/Daphne Banay 14 DAPHNE BANAY 15 Special Assistant United States Attorney 16 Of Counsel for the Defendant: 17 MATHEW W. PILE 18 Acting Regional Chief Counsel, Social Security Administration Office of the General Counsel, Region X 19 701 Fifth Avenue, Suite 2900 M/S 221A 20 Seattle, WA 98104-7075 21 22 23 24 25 26 27 28 2 Case 3:17-cv-08027-GMS Document 10 Filed 04/19/17 Page 3 of 3 1 2 CERTIFICATE OF SERVICE 3 4 I hereby certify that the foregoing Notice of Appearance was filed with the Clerk 5 of the Court on April 19, 2017, using the CM/ECF system which will send notification of 6 such filing to the following: Howard D Olinsky. 7 8 s/Paul Maestry-Williams 9 PAUL MAESTRY-WILLIAMS Paralegal Specialist 10 Office of the General Counsel 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

ANSWER to [1] Complaint by Commissioner of Social Security Administration.

Case 3:17-cv-08027-GMS Document 11 Filed 05/12/17 Page 1 of 4 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Daphne Banay 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA21537 8 Fax: (206) 615-2531 daphne.banay@ssa.gov 9 Telephone: (206) 615-2113 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Melissa Dionne Labrusciano, No. CV-17-08027-PCT-GMS 14 15 Plaintiff, 16 ANSWER vs. 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 Defendant, in answer to Plaintiff’s complaint, admits, denies and alleges as 22 follows: 23 1. With respect to the allegations in paragraph 1, Defendant states that the Court 24 25 has jurisdiction pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). 26 2. Defendant admits the allegations contained in paragraphs 2 and 3. Defendant 27 further states that the Appeals Council’s action denying Plaintiff’s request for review of 28 Case 3:17-cv-08027-GMS Document 11 Filed 05/12/17 Page 2 of 4 1 the administrative law judge’s hearing decision made the administrative law judge’s 2 decision the final decision of the Commissioner of Social Security subject to judicial 3 review pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). See 20 4 5 C.F.R. § 422.210. The action of the Appeals Council denying administrative review is 6 not subject to judicial review. 20 C.F.R. § 422.210. 7 3. With respect to the allegations contained in paragraph 4, Defendant neither 8 admits nor denies the digits of Plaintiff’s Social Security Number. Further, Defendant 9 10 lacks knowledge or information sufficient to form a belief as to the truth of Plaintiff’s 11 place of residence. 12 4. With respect to the allegations contained in paragraph 5, Defendant admits that 13 14 Nancy A. Berryhill is the Acting Commissioner of Social Security. Further, Defendant 15 admits that Acting Commissioner Berryhill succeeded to the duties and responsibilities of 16 the preceding Acting Commissioner Colvin. 17 18 5. Paragraphs 6, 7, and 8 of Plaintiff’s complaint constitute legal conclusions to 19 which no responsive pleading is required. To the extent that the court deems a responsive 20 pleading is necessary, Defendant denies the allegations. 21 6. The remainder of the Complaint constitutes legal conclusions and a Prayer for 22 23 Relief to which no response is deemed necessary. However, if the court requires a 24 response, Defendant denies the allegations and denies that Plaintiff is entitled to 25 judgment or to the relief sought. 26 27 7. With respect to Plaintiff's request that an attorney's fee be awarded by the court, 28 should Plaintiff prevail and file an application for fees against the United States in 2 Case 3:17-cv-08027-GMS Document 11 Filed 05/12/17 Page 3 of 4 1 accordance with the requirements of 28 U.S.C. § 2412, enacted as part of the Equal 2 Access to Justice Act, the Commissioner reserves the right to oppose any award under 3 this statute. 4 5 8. Defendant denies each and every allegation of the Complaint not otherwise 6 specifically admitted, denied or qualified. 7 9. The findings of fact of the Commissioner of Social Security, are supported by 8 substantial evidence and are conclusive. 9 10 10. In accordance with section 205(g) of the Social Security Act, 42 U.S.C. 11 § 405(g), Defendant files as part of the answer a certified copy of the transcript of the 12 record including the evidence upon which the findings and decisions complained of are 13 14 based. 15 11. WHEREFORE, Defendant prays for a judgment dismissing the Complaint, 16 with costs and disbursements, and for a judgment in accordance with section 205(g) of 17 18 the Social Security Act, 42 U.S.C. § 405(g), affirming the agency decision. 19 DATED this 12th day of May 2017. 20 Respectfully submitted, 21 ELIZABETH A. STRANGE 22 Acting United States Attorney 23 District of Arizona 24 s/Daphne Banay 25 DAPHNE BANAY Special Assistant United States Attorney 26 27 28 3 Case 3:17-cv-08027-GMS Document 11 Filed 05/12/17 Page 4 of 4 1 Of Counsel for the Defendant: 2 MATHEW W. PILE 3 Acting Regional Chief Counsel, Social Security Administration Office of the General Counsel, Region X 4 701 Fifth Avenue, Suite 2900 M/S 221A 5 Seattle, WA 98104-7075 6 7 8 9 10 CERTIFICATE OF SERVICE 11 12 I hereby certify that the foregoing Answer was filed with the Clerk of the 13 Court on May 12, 2017, using the CM/ECF system, which will send notification of 14 such filing to the following: Howard D. Olinsky. 15 16 17 s/Barbara Eadie BARBARA EADIE 18 Paralegal Specialist 19 Office of the General Counsel 20 21 22 23 24 25 26 27 28 4

NOTICE of Filing Certified Copy of Administrative Transcript re: [11] Answer to Complaint filed by Commissioner of Social Security Administration.

Case 3:17-cv-08027-GMS Document 12 Filed 05/12/17 Page 1 of 2 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Daphne Banay 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA21537 8 Fax: (206) 615-2531 daphne.banay@ssa.gov 9 Telephone: (206) 615-2113 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Melissa Dionne Labrusciano, No. CV-17-08027-PCT-GMS 14 15 Plaintiff, 16 NOTICE OF FILING CERTIFIED vs. ADMINISTRATIVE/TRANSCRIPT 17 OF RECORD Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 PLEASE TAKE NOTICE the Acting Commissioner of the Social Security 22 Administration, by and through Daphne Banay, Special Assistant United States 23 Attorney for the District of Arizona, files herein in accordance with section 205(g) of the 24 25 Social Security Act, 42 U.S.C. § 405(g), as part of the answer a certified electronic copy 26 of the transcript of the record including the evidence upon which the findings and 27 decision complained of are based. In addition, a paper copy was delivered to the court. 28 Case 3:17-cv-08027-GMS Document 12 Filed 05/12/17 Page 2 of 2 1 DATED this 12th day of May 2017. 2 3 Respectfully submitted, 4 ELIZABETH A. STRANGE 5 Acting United States Attorney District of Arizona 6 s/Daphne Banay 7 DAPHNE BANAY 8 Special Assistant United States Attorney 9 Of Counsel for the Defendant: 10 MATHEW W. PILE 11 Acting Regional Chief Counsel, Social Security Administration 12 Office of the General Counsel, Region X 701 Fifth Avenue, Suite 2900 M/S 221A 13 Seattle, WA 98104-7075 14 15 16 17 18 CERTIFICATE OF SERVICE 19 20 I hereby certify that the foregoing Notice of Filing Certified 21 Administrative/Transcript of Record was filed with the Clerk of the Court on May 22 12, 2017, using the CM/ECF system, which will send notification of such filing to 23 the following: Howard D. Olinsky. 24 25 26 s/Barbara Eadie BARBARA EADIE 27 Paralegal Specialist 28 Office of the General Counsel 2

Court Transcript Index

Case 3:17-cv-08027-GMS Document 12-2 Filed 05/12/17 Page 1 of 4 Court Transcript Index Civil Action Number: 3:17-CV-08027 Claimant: Melissa Dionne Labrusciano Account Number: 561-19-8463 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 12/13/2016 1-7 7 AC Correspondence (ACCORR), dated 08/05/2015 8-13 6 Request for Review of Hearing Decision/Order (HA 520), dated 14-16 3 07/23/2015 ALJ Hearing Decision (ALJDEC), dated 06/26/2015 17-40 24 Outgoing ODAR Correspondence (OUTODARC), dated 10/10/2014 41-43 3 Appointment of Representative (1696), dated 02/04/2014 44-45 2 Representative Fee Agreement (FEEAGRMT), dated 01/29/2014 46 1 Transcript of Oral Hearing (TRANHR), dated 05/11/2015 47-66 20 Exhibits Exhibit No. of No. Description Page No. Pages 1A Disability Determination Transmittal, dated 12/23/2013 67 1 2A Disability Determination Explanation 68-83 16 3A Disability Determination Explanation 84-101 18 4A Disability Determination Transmittal, dated 04/16/2014 102 1 1B Personal Decision Notice, dated 12/26/2013 103-107 5 2B Representative Fee Agreement, dated 01/29/2014 108 1 3B Appointment of Representative, dated 02/04/2014 109 1 4B Request for Reconsideration, dated 02/04/2014 110-112 3 5B Personal Decision Notice, dated 04/16/2014 113-115 3 6B Request for Hearing by ALJ, dated 05/02/2014 116-117 2 7B Request for Hearing Acknowledgement Letter 118-124 7 8B Resume of Vocational Expert 125-127 3 9B Hearing Notice, dated 02/23/2015 128-154 27 10B Representative Correspondence, dated 10/30/2014 155 1 11B Representative Fee Agreement, dated 02/25/2015 156 1 12B Appointment of Representative, dated 04/23/2015 157 1 13B Notice Of Hearing Reminder, dated 04/27/2015 158-163 6 1D Application for Disability Insurance Benefits, dated 164-170 7 07/31/2013 2D Certified Earnings Records 171-172 2 3D Detailed Earnings Query 173-176 4 4D New Hire, Quarter Wage, Unemployment Query (NDNH) 177 1 5D Summary Earnings Query 178 1 6D Prisoner/Fugitive Felon 179 1 7D New Hire, Quarter Wage, Unemployment Query (NDNH), 180-181 2 dated 04/27/2015 DATE: April 7, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-08027-GMS Document 12-2 Filed 05/12/17 Page 2 of 4 Court Transcript Index Civil Action Number: 3:17-CV-08027 Claimant: Melissa Dionne Labrusciano Account Number: 561-19-8463 Exhibits Exhibit No. of No. Description Page No. Pages 8D WHAT-Work History Assistant Tool, dated 04/27/2015 182-193 12 9D MVD Violation, dated 05/01/2013 194-201 8 1E Misc Disability Development and Documentation, dated 202 1 11/24/2010 2E Misc Disability Development and Documentation, dated 203 1 07/30/2013 3E Disability Report-Field Office, dated 07/31/2013 204-206 3 4E Disability Report-Adult, dated 07/31/2013 207-216 10 5E Work History Report, dated 07/31/2013 217-224 8 6E DDS Disability Worksheet, dated 08/01/2013 to 09/23/2013, 225 1 from DDS PHOEN AZ 7E Work History Report, dated 10/10/2013, from 226-236 11 LABRUSCIANO, MELISSA DIONNE 8E DDS Disability Worksheet, dated 10/23/2013 to 12/03/2013, 237-238 2 from DDS PHOEN AZ 9E DDS Disability Worksheet, dated 09/23/2013 to 12/26/2013, 239-243 5 from OK DDS EST 10E Disability Report-Field Office, dated 02/05/2014 244-245 2 11E Disability Report-Appeals, dated 02/11/2014 246-252 7 12E DDS Disability Worksheet, dated 02/12/2014 to 02/24/2014, 253-254 2 from DDS PHOEN AZ 13E Function Report-Adult, dated 03/20/2014, from 255-265 11 LABRUSCIANO, MELISSA DIONNE 14E DDS Disability Worksheet, dated 02/24/2014 to 04/16/2014, 266-269 4 from OK DDS EST 15E Disability Report-Field Office, dated 05/05/2014 270-271 2 16E Disability Report-Appeals, dated 05/05/2014 272-277 6 17E Recent Medical Treatment, dated 04/10/2015 278-279 2 18E Work Background, dated 04/10/2015 280 1 19E Medications, dated 04/10/2015 281 1 20E Representative Correspondence, dated 05/08/2015, from 282-283 2 Myler Disability 21E Representative Brief, dated 07/23/2015 284 1 1F Office Treatment Records, dated 11/13/2009 to 01/20/2010, 285-288 4 from The CORE Institute 2F Office Treatment Records, dated 03/17/2010, from Pharag 289-291 3 Chokshi-Banner Health 3F Office Treatment Records, dated 06/01/2009 to 07/23/2010, 292-300 9 from Waldrip, Robert, MD 4F Office Treatment Records, dated 12/16/2010, from Sunrose 301-303 3 Anesthesia DATE: April 7, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-08027-GMS Document 12-2 Filed 05/12/17 Page 3 of 4 Court Transcript Index Civil Action Number: 3:17-CV-08027 Claimant: Melissa Dionne Labrusciano Account Number: 561-19-8463 Exhibits Exhibit No. of No. Description Page No. Pages 5F Office Treatment Records, dated 05/09/2011 to 06/14/2011, 304-311 8 from Sunrose Anesthesia 6F Misc Medical Records, dated 06/20/2011, from McClain, Bu, 312-313 2 MD 7F Physical/Occupational Therapy Records, dated 07/19/2011 to 314-330 17 08/08/2011, from CHAMPION PHYSICAL THERAPY 8F Office Treatment Records, dated 05/18/2011 to 08/31/2011, 331-340 10 from NORTHWEST UROLOGY ASSOCIATES 9F Office Treatment Records, dated 05/04/2011 to 09/01/2011, 341-347 7 from CLINIC FOR DIGESTIVE DISEASES 10F Hospital Records, dated 10/11/2011, from WICKENBURG 348-375 28 COMMUNITY HOSPITAL 11F Hospital Records, dated 12/17/2007 to 10/11/2011, from 376-409 34 WICKENBURG COMMUNITY HOSPITAL 12F Hospital Records, dated 10/11/2011 to 10/14/2011, from 410-429 20 BANNER THUNDERBIRD MEDICAL CENTER 13F Hospital Records, dated 12/17/2007 to 08/20/2012, from 430-481 52 WICKENBURG COMMUNITY HOSPITAL CLINIC 14F Office Treatment Records, dated 11/04/2011 to 07/03/2013, 482-495 14 from Sahara Behavioral Health 15F CE Physical Medicine, dated 11/20/2013, from GLENN R 496-502 7 KUNSMAN, DO (PRESCOTT) 16F CE Psychology, dated 11/22/2013, from STEPHEN GILL, 503-512 10 PH.D (PRESCOTT) 17F Office Treatment Records, dated 06/23/2011 to 02/09/2014, 513-528 16 from SUNRISE MEDICAL CENTER 18F Office Treatment Records, dated 09/03/2013 to 02/10/2014, 529-538 10 from SAHARA BEHAVIORAL HEALTH 19F Office Treatment Records, dated 01/23/2014 to 03/20/2014, 539-542 4 from SAHARA BEHAVIORAL HEALTH 20F Attorney/Representative-Supplied Evidence, dated 543-546 4 03/20/2014, from Satinder Purewal, MD 21F Attorney/Representative-Supplied Evidence, dated 547-549 3 03/25/2014, from Kravetz, Todd, MD 22F Medical Evidence of Record, dated 07/24/2014, from 550-552 3 Kravetz, Todd MD 23F Medical Evidence of Record, dated 08/15/2014, from West 553-556 4 Yavapai Guidance Clinic 24F Inpatient Hospital Records, dated 02/07/2014 to 02/09/2014, 557-574 18 from Banner Health 25F Office Treatment Records, dated 10/23/2013 to 05/08/2014, 575-586 12 from Sunrose Anesthesia PLLC DATE: April 7, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-08027-GMS Document 12-2 Filed 05/12/17 Page 4 of 4 Court Transcript Index Civil Action Number: 3:17-CV-08027 Claimant: Melissa Dionne Labrusciano Account Number: 561-19-8463 Exhibits Exhibit No. of No. Description Page No. Pages 26F Office Treatment Records, dated 03/26/2014 to 10/08/2014, 587-624 38 from West Yavapai Guidance Clinic 27F Medical Evidence of Record, dated 10/05/2014, from 625-628 4 Gregory, Stacey B. PMHNP-BC 28F Laboratory Test Report, dated 07/10/2012, from Sunrose 629-630 2 Anesthesia 29F Office Treatment Records, dated 11/20/2013, from Medico 631-637 7 30F Office Treatment Records, dated 03/26/2014 to 10/07/2014, 638-653 16 from West Yavapai Guidance Clinic 31F Office Treatment Records, dated 08/20/2012 to 12/12/2014, 654-662 9 from Kravetz, Todd, MD 32F Office Treatment Records, dated 02/07/2014 to 12/30/2014, 663-694 32 from Wickenburg Community Hospital 33F Emergency Department Records, dated 02/07/2014, from 695-717 23 Wickenburg Community Hospital 34F Office Treatment Records, dated 11/06/2014 to 03/06/2015, 718-743 26 from West Yavapai Guidance Clinic 35F Medical Report/General, dated 03/19/2015, from Froelicher, 744-747 4 Kari, MA LPC 36F Office Treatment Records, dated 04/24/2013, from Arizona 748-751 4 Neurological Institute 37F Office Treatment Records, dated 03/11/2015 to 03/24/2015, 752-759 8 from Wickenburg Community Hospital 38F Office Treatment Records, dated 04/16/2015, from Breaking 760-763 4 Free Christian Counseling 39F Medical Report/General, dated 03/24/2015, from KRAVETZ, 764-767 4 TODD, MD 40F Doctor's Note, dated 08/14/2012, from Dr. Yamaz, MD 768 1 41F Counseling Notes, dated 01/22/2014 to 01/27/2015, from 769-774 6 Dari Froelicher, MA, LPC DATE: April 7, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable.

Documents Related to Administrative Process Including Transcript of Oral Hearin

Case 3:17-cv-08027-GMS Document 12-3 Filed 05/12/17 Page 1 of 67 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable Civil Action Number: 3:17-CV-08027 Claimant: Melissa Dionne Labrusciano Account Number: 561-19-8463 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 12/13/2016 1-7 7 AC Correspondence (ACCORR), dated 08/05/2015 8-13 6 Request for Review of Hearing Decision/Order (HA 520), dated 14-16 3 07/23/2015 ALJ Hearing Decision (ALJDEC), dated 06/26/2015 17-40 24 Outgoing ODAR Correspondence (OUTODARC), dated 10/10/2014 41-43 3 Appointment of Representative (1696), dated 02/04/2014 44-45 2 Representative Fee Agreement (FEEAGRMT), dated 01/29/2014 46 1 Transcript of Oral Hearing (TRANHR), dated 05/11/2015 47-66 20 DATE: April 7, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66

Payment Documents and Decisions

Case 3:17-cv-08027-GMS Document 12-4 Filed 05/12/17 Page 1 of 37 Payment Documents and Decisions Civil Action Number: 3:17-CV-08027 Claimant: Melissa Dionne Labrusciano Account Number: 561-19-8463 Exhibits Exhibit No. of No. Description Page No. Pages 1A Disability Determination Transmittal, dated 12/23/2013 67 1 2A Disability Determination Explanation 68-83 16 3A Disability Determination Explanation 84-101 18 4A Disability Determination Transmittal, dated 04/16/2014 102 1 DATE: April 7, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102

Jurisdictional Documents and Notices

Case 3:17-cv-08027-GMS Document 12-5 Filed 05/12/17 Page 1 of 62 Jurisdictional Documents and Notices Civil Action Number: 3:17-CV-08027 Claimant: Melissa Dionne Labrusciano Account Number: 561-19-8463 Exhibits Exhibit No. of No. Description Page No. Pages 1B Personal Decision Notice, dated 12/26/2013 103-107 5 2B Representative Fee Agreement, dated 01/29/2014 108 1 3B Appointment of Representative, dated 02/04/2014 109 1 4B Request for Reconsideration, dated 02/04/2014 110-112 3 5B Personal Decision Notice, dated 04/16/2014 113-115 3 6B Request for Hearing by ALJ, dated 05/02/2014 116-117 2 7B Request for Hearing Acknowledgement Letter 118-124 7 8B Resume of Vocational Expert 125-127 3 9B Hearing Notice, dated 02/23/2015 128-154 27 10B Representative Correspondence, dated 10/30/2014 155 1 11B Representative Fee Agreement, dated 02/25/2015 156 1 12B Appointment of Representative, dated 04/23/2015 157 1 13B Notice Of Hearing Reminder, dated 04/27/2015 158-163 6 DATE: April 7, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163

Non Disability Related Development

Case 3:17-cv-08027-GMS Document 12-6 Filed 05/12/17 Page 1 of 39 Non Disability Related Development Civil Action Number: 3:17-CV-08027 Claimant: Melissa Dionne Labrusciano Account Number: 561-19-8463 Exhibits Exhibit No. of No. Description Page No. Pages 1D Application for Disability Insurance Benefits, dated 164-170 7 07/31/2013 2D Certified Earnings Records 171-172 2 3D Detailed Earnings Query 173-176 4 4D New Hire, Quarter Wage, Unemployment Query (NDNH) 177 1 5D Summary Earnings Query 178 1 6D Prisoner/Fugitive Felon 179 1 7D New Hire, Quarter Wage, Unemployment Query (NDNH), 180-181 2 dated 04/27/2015 8D WHAT-Work History Assistant Tool, dated 04/27/2015 182-193 12 9D MVD Violation, dated 05/01/2013 194-201 8 DATE: April 7, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201

Disability Related Development

Case 3:17-cv-08027-GMS Document 12-7 Filed 05/12/17 Page 1 of 84 Disability Related Development Civil Action Number: 3:17-CV-08027 Claimant: Melissa Dionne Labrusciano Account Number: 561-19-8463 Exhibits Exhibit No. of No. Description Page No. Pages 1E Misc Disability Development and Documentation, dated 202 1 11/24/2010 2E Misc Disability Development and Documentation, dated 203 1 07/30/2013 3E Disability Report-Field Office, dated 07/31/2013 204-206 3 4E Disability Report-Adult, dated 07/31/2013 207-216 10 5E Work History Report, dated 07/31/2013 217-224 8 6E DDS Disability Worksheet, dated 08/01/2013 to 09/23/2013, 225 1 from DDS PHOEN AZ 7E Work History Report, dated 10/10/2013, from 226-236 11 LABRUSCIANO, MELISSA DIONNE 8E DDS Disability Worksheet, dated 10/23/2013 to 12/03/2013, 237-238 2 from DDS PHOEN AZ 9E DDS Disability Worksheet, dated 09/23/2013 to 12/26/2013, 239-243 5 from OK DDS EST 10E Disability Report-Field Office, dated 02/05/2014 244-245 2 11E Disability Report-Appeals, dated 02/11/2014 246-252 7 12E DDS Disability Worksheet, dated 02/12/2014 to 02/24/2014, 253-254 2 from DDS PHOEN AZ 13E Function Report-Adult, dated 03/20/2014, from 255-265 11 LABRUSCIANO, MELISSA DIONNE 14E DDS Disability Worksheet, dated 02/24/2014 to 04/16/2014, 266-269 4 from OK DDS EST 15E Disability Report-Field Office, dated 05/05/2014 270-271 2 16E Disability Report-Appeals, dated 05/05/2014 272-277 6 17E Recent Medical Treatment, dated 04/10/2015 278-279 2 18E Work Background, dated 04/10/2015 280 1 19E Medications, dated 04/10/2015 281 1 20E Representative Correspondence, dated 05/08/2015, from 282-283 2 Myler Disability 21E Representative Brief, dated 07/23/2015 284 1 DATE: April 7, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284

OPENING BRIEF by Melissa Dionne Labrusciano Social Security.

Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 1 of 26 1 Howard D. Olinsky Attorney for Plaintiff 2 Admitted Pro Hac Vice 3 One Park Place 300 South State St., Suite 420 4 Syracuse, New York 13202 Phone: (315) 701-5780 5 Facsimile: (315) 701-5781 6 Email: holinsky@windisability.com 7 8 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 9 Melissa Dionne Labrusciano No. CV-17-08027-PCT-GMS 10 11 Plaintiff, 12 13 vs. OPENING BRIEF OF PLAINTIFF [Dist. Ariz. Local Rule Civil 16.1(a)] 14 Nancy A. Berryhill, 15 16 Acting Commissioner of Social 17 Security, 18 Defendant 19 STATEMENT OF THE ISSUES 20 21 1. The RFC is unsupported by substantial evidence due to the ALJ improperly assigning little weight to treating sources. 22 2. The ALJ’s reliance on the opinions of the CEs and SAMCs is reversible error because they did not have access to crucial information in the record. 23 3. The ALJ’s failure to develop the record by failing to subpoena the records of 24 Plaintiff’s treating Counselor Ms. Froelicher is reversible error. 25 26 27 1 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 2 of 26 1 STATEMENT OF THE CASE 2 On July 12, 2013, Melissa Labrusciano ("Plaintiff") protectively filed an 3 application for Disability Insurance Benefits, alleging disability since her amended 4 alleged onset date of January 1, 2014 due to "pelvic/back issues," "sacroilitis," 5 "depression," and "mental issue." Administrative Transcript ("T") at 20, 68. Plaintiff’s 6 claims were initially denied on December 26, 2013, (T 103) and on reconsideration on 7 8 April 16, 2014. T 113. After a hearing held on May 11, 2015 (T 47-66), Administrative 9 Law Judge ("ALJ") Patricia Bucci issued a decision denying Plaintiff’s application on 10 June 26, 2015. T 20-34. 11 In the decision, the ALJ found that Plaintiff had not engaged in substantial gainful 12 activity since January 1, 2014, the alleged onset date. T 22. For purposes of Title II 13 Disability Insurance Benefits, the ALJ found the date last insured was December 31, 14 15 2018. Id. She found severe impairments of major depressive disorder, anxiety disorder, 16 posttraumatic stress disorder and lumbar and pelvic degenerative joint disease. Id. The 17 ALJ found that Plaintiff does not have an impairment or combination of impairments that 18 meets or medically equals one of the listed impairments. T 23. The ALJ determined that 19 Plaintiff has the residual functional capacity ("RFC") to perform: 20 medium work... with the following limitations. She needs work with 21 things not data or people and needs work that is limited to tasks that can be learned by demonstrating within 30 days. The claimant can work in the 22 vicinity of others, but may have only minimal interaction with coworkers 23 and supervisors, and no in-person interaction with the public. 24 T 25. At Step 4, the ALJ found that Plaintiff could not perform her past relevant work as 25 a customer service representative or a secretary. T 32. The ALJ found that there are jobs 26 that exist in the national economy that the claimant could perform and therefore found the 27 2 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 3 of 26 1 claimant to not have been under a disability from April 13, 2013 through the date of the 2 decision. T 33. (The ALJ accepted Plaintiff’s amendment of her alleged onset date to 3 January 1, 2014, which is presumably the date the ALJ meant. T 20.) 4 On June 26, 2015, the Appeals Council denied review, T 1-5, which means the 5 final agency decision is the ALJ’s unfavorable decision. This action followed. This 6 Court has jurisdiction of this action. 42 U.S.C. §§ 405(g). 7 8 STATEMENT OF FACTS 9 On the alleged onset date, Plaintiff was 41 years old. T 32. At the time of the ALJ 10 decision, she was 43 years old. Id. Plaintiff completed the high school and worked in the 11 past as a customer service representative and secretary. T 235-36. 12 A. Medical Evidence 13 On June 1, 2009, a renal ultrasound showed Plaintiff had mild left hydronephrosis, 14 15 which was new compared to previous ultrasounds from 2008. T 294. It also showed 16 a new seven centimeter complicated left adnexal cystic mass likely causing left 17 hydronephrosis. Id. 18 On November 13, 2009, treating physician John Thompson, D.O., diagnosed 19 Plaintiff with osteitis pubis. T 288. Dr. Thompson noted that the x-rays he reviewed 20 showed increasing calcium density around the pubic symphysis, and one view which 21 showed a step-off consistent with instability in that region. Id. Dr. Thompson also 22 23 noted that x-rays on the day of examination showed anatomical reduction. Id. Dr. 24 Thompson further noted that on examination Plaintiff had pain over the bilateral great 25 trochanteric regions, and that she had minor sacroilitis. Id. 26 On December 7, 2009, treating physician Robert Cercek, M.D., diagnosed Plaintiff 27 3 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 4 of 26 1 with pelvic instability. T 287. Dr. Cercek reviewed Plaintiff’s prior x-rays and noted that 2 they demonstrated a dynamic instability of the pubic symphysis on single-leg stance. Id. 3 Dr. Cercek also noted that Plaintiff’s pelvic pain was present at rest as well as with 4 startup and was worsened by any physical activity. Id. Dr. Cercek further noted that 5 Plaintiff’s main area of pain seemed to be in the central portion of the anterior pelvis and 6 radiates into the left groin. Id. 7 8 On January 20, 2010, treating podiatrist Travis Jensen, DPM, noted that Plaintiff 9 had bilateral bunion pain. T 286. 10 On March 17, 2010, a CT of Plaintiff’s abdomen and pelvis showed hepatic 11 steatosis and incidental small left ovarian cysts. T 291. 12 On July 23, 2010, an MRI of Plaintiff’s lumbar spine showed a tiny bridging 13 marginal osteophyte on the right SI joint as well as slight increased sclerosis bilaterally 14 15 on the SI joints with joint space loss on the right, and that these findings correlated with 16 prominent sclerosis of the bilateral SI joints identified on previous radiography. T 293. 17 The MRI also showed mild facet hypertrophy at the L2/3, L4/5, and L5/S1, and minimal 18 disc bulge without stenosis and mild left facet hypertrophy at L3/4. Id. 19 On October 11, 2011, Plaintiff arrived at the emergency department of 20 Wickenburg Community Hospital in an ambulance after an attempted suicide by 21 intentional drug overdose. T 350. According to the EMTs who responded to the scene, 22 23 Plaintiff took approximately 90 of her husband’s ten milligram diazepam and had also 24 left a suicide note. T 360. Plaintiff was admitted to the behavioral health unit after being 25 stabilized in the internal medicine floor. T 413. Treating physician David Downs, M.D., 26 diagnosed Plaintiff with depressive disorder, psychosocial problems, and "likely mood 27 4 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 5 of 26 1 disorder with depressed and anxious features due to other medical condition". T 416. 2 Plaintiff was discharged from the hospital on October 14, 2011 at her own request, but 3 Dr. Downs noted that she remained "mildly-to-moderately depressed." Id. 4 On January 9, 2012, treating physician Corey Yilmaz, M.D., diagnosed Plaintiff 5 with major depressive disorder, recurrent episode, severe degree, and generalized anxiety 6 disorder. T 485. Dr. Yilmaz noted that Plaintiff’s mood was anxious and depressed. Id. 7 8 Dr. Yilmaz prescribed Xanax, Zoloft, and Effexor. Id. On April 11, 2012, Dr. Yilmaz 9 also noted that Plaintiff appeared depressed and anxious and her mood was depressed and 10 anxious. T 487. Dr. Yilmaz further noted that Plaintiff was still depressed and had 11 passive suicidal ideation. Id. Dr. Yilmaz increased Plaintiff’s Cymbalta at this 12 appointment. Id. On June 6, 2012, Dr. Yilmaz noted that Plaintiff was anxious and had 13 an incident at work with a coworker. T 488. On August 7, 2012 and December 6, 2012, 14 15 Dr. Yilmaz noted that Plaintiff had some improvement, but also increased the dosage of 16 her Cymbalta. T 490. 17 On May 28, 2013, treating psychiatrist Satinder Purewal, M.D., noted that 18 Plaintiff’s mood was depressed, anxious, fearful, withdrawn, tearful, and apathetic, and 19 her affect was sad, labile, and congruent to mood. T 491. Dr. Purewal also noted that 20 Plaintiff’s behavior was anxious, cooperative, and distractible. Id. Dr. Purewal added a 21 diagnosis of bipolar affective disorder to Plaintiff’s previous diagnoses of major 22 23 depressive disorder and generalized anxiety disorder. Id. Dr. Purewal instructed Plaintiff 24 to continue her current psychiatric medications which were Abilify and Zoloft at that 25 time. Id. 26 On May 20, 2013, Dr. Purewal noted that Plaintiff’s affect was sad and her mood 27 5 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 6 of 26 1 was depressed and anxious. T 492. Dr. Purewal also noted that Plaintiff contracted for 2 safety and instructed her to increase her Zoloft and taper off her Cymbalta. Id. On June 3 6, 2013, Dr. Purewal noted Plaintiff’s affect was sad and her mood was depressed and 4 anxious. T 493. Dr. Purewal also noted that Plaintiff’s behavior was distractible and 5 vague, and her speech was tangential. Id. Once again Dr. Purewal had Plaintiff contract 6 for safety, and he added a prescription for Trileptal. Id. On June 20, 2013, Dr. Purewal 7 8 noted that Plaintiff was feeling tired in the day and felt depressed and anxious and was 9 crying "a lot." T 494. Dr. Purewal also noted that Plaintiff’s affect was sad and her mood 10 was depressed and anxious and her speech was slow and tangential. Id. Dr. Purewal once 11 again had Plaintiff contract for safety and added a prescription for Abilify to her 12 medication list. Id. 13 On July 3, 2013, Dr. Purewal noted that Plaintiff was doing better but the Abilify 14 15 was making her tired and she was still having anxiety. T. 495. Dr. Purewal also noted 16 that Plaintiff’s mood was depressed and anxious and her speech was tangential. Id. On 17 September 3, 2013, Dr. Purewal noted that Plaintiff was "not doing well," and was 18 depressed, irritable, and anxious and she also contracted for safety. T 538. Dr. Purewal 19 also noted that Plaintiff’s affect was sad and her mood was depressed and anxious. Id. 20 Dr. Purewal added prescriptions for Lamictal and Seroquel to Plaintiff’s other 21 prescriptions for Xanax and Zoloft. Id. On September 10, 2013, Dr. Purewal noted that 22 23 Plaintiff did not like Seroquel and that she was very depressed, had decreased energy and 24 motivation, and she was anxious, irritable, and sleeping too much. 537. 25 On September 24, 2013, Plaintiff was still "not doing well," as noted by Dr. 26 Purewal and was "very depressed and crying". T 536. Dr. Purewal noted that Plaintiff’s 27 6 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 7 of 26 1 affect was sad and her mood was depressed and anxious, and she had suicidal ideation 2 but denied intent or plan. Id. Dr. Purewal also added a prescription for Wellbutrin SR. 3 Id. On October 8, 2013, Dr. Purewal noted that Plaintiff was still "very depressed and 4 anxious," had a poor appetite, and still had suicidal ideation but no plan or intent, though 5 he contracted for safety. T 535. 6 On October 22, 2013, Plaintiff saw Dr. Purewal and he noted she had been feeling 7 8 overwhelmed and anxious, had sleep disturbances, a depressed, anxious, fearful, 9 withdrawn, tearful, apathetic mood, sad and labile affect, and was anxious, cooperative, 10 and distractible. T 534. On November 19, 2013, Dr. Purewal noted that Plaintiff was 11 still feeling depressed and anxious, but she was doing a little better. T 533. Dr. Purewal 12 also noted that Plaintiff had irritability, mood swings, racing thoughts, and some suicidal 13 ideation without plan or intent, though she did stop her Abilify because she thought it was 14 15 making it difficult to be in public. T 533. He also contracted for safety. Id. 16 On November 20, 2013, Plaintiff saw consultative examiner ("CE") Glenn 17 Kunsman, D.O., who diagnosed Plaintiff with pelvic instability with chronic low back 18 pain. T 501. While Dr. Kunsman opined that Plaintiff’s conditions would not impose 19 any limitations for 12 continuous months, he did not have the benefit of seeing any of 20 Plaintiff’s medical records, including the radiographic imaging described at the top of 21 this section. T 501. 22 23 On November 22, 2013, CE Stephen Gill, Ph. D., examined Plaintiff, though he 24 was also not given any medical records to get a sense of her history. T 505. Dr. Gill 25 diagnosed Plaintiff with depressive disorder with suicidal ideation. T 508. Dr. Gill noted 26 that Plaintiff presented with signs of depression, and that Plaintiff’s depression did not 27 7 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 8 of 26 1 appear fully stabilized at this time. Id. Dr. Gill also noted that Plaintiff reported 2 difficulties leaving the house, except when accompanied by her husband and as a result 3 she was not able to independently avoid social hazards or exercise social judgment. T 4 509. Dr. Gill further noted that Plaintiff felt she had no friends and spent most of her 5 time at home by herself watching television. Id. Dr. Gill opined that Plaintiff would 6 experience mild to moderate difficulty understanding and remembering detailed 7 8 instructions given by an employer; Plaintiff would have mild to moderate difficulty 9 carrying out detailed instructions in a work setting, she would have mild to moderate 10 difficulty maintaining concentration and attention for extended periods in a work setting, 11 and Plaintiff would have mild to moderate difficulty completing a normal workweek 12 without experiencing psychologically based symptoms. T 510. Dr. Gill also opined that 13 Plaintiff would have mild to moderate difficulty interacting with the general public and 14 15 with supervisors in a work setting. T 511. 16 On January 23, 2014, Plaintiff saw Dr. Purewal who noted that Plaintiff had been 17 feeling very anxious and stressed, had been having a lot of negative thoughts, and had no 18 motivation to do anything. T 532. Dr. Purewal also noted that Plaintiff’s behavior was 19 anxious and distractible, her mood was depressed, anxious, fearful, withdrawn, tearful, 20 and apathetic, and her affect was sad, labile, and congruent to mood. Id. 21 On February 7, 2014, Plaintiff once again attempted suicide by taking an overdose 22 23 of medications. T 525-526. Treating physician Craig Heise, M.D., noted that Plaintiff 24 had reported that she took 60 tablets of hydrocodone and 20 to 30 tablets of 10 mg 25 diazepam. Id. Dr. Heise noted that Plaintiff was admitted to the hospital and was 26 monitored in intensive care. Id. Plaintiff was discharged from the hospital on February 27 8 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 9 of 26 1 9, 2014. T 558. While she was in the hospital, treating physician Cassandra Villatoro-2 Bank, D.O., noted that Plaintiff had a past psychiatric history of depression, anxiety, and 3 physical problems. T 560. Dr. Villatoro-Bank also noted that Plaintiff reported her 4 depression had worsened since losing her job in April 2013 and in the past three months 5 she had lost all motivation, lost her drive to live, was no longer productive, felt hopeless, 6 had increased sleep, dreaded getting out of bed, lost her appetite, lost 20 pounds, had low 7 8 energy and concentration, and her thoughts of suicide had increased. Id. Dr. Villatoro-9 Bank also noted that Plaintiff intermittently experienced shortness of breath, palpations 10 and swearing due to stress, and recently had felt panic attacks and agoraphobia. Id. 11 Oh February 10, 2014, Dr. Purewal noted Plaintiff’s overdose and documented 12 that her mood was depressed and anxious and her behavior was distractible. T 531. At 13 this visit, Dr. Purewal noted Plaintiff’s medications of 100mg of Zoloft and 50mg of 14 15 Prestiq. Id. 16 On March 26, 2014, Plaintiff began treatment at West Yavapai Guidance Clinic 17 where she reported that she had been hospitalized at least four times in the past due to her 18 mental illness. T 618. Plaintiff was initially diagnosed with major depressive disorder, 19 anxiety state, and post-traumatic stress disorder. T 619. On July 3, 2014, Plaintiff saw 20 treating Counselor Stacey Gregory, PMHNP. Counselor Gregory noted that Plaintiff’s 21 presentation was "not that of a woman capable of being a supervisor of others, in fact she 22 23 (did) not appear capable of answering questions succinctly." T 601. Counselor Gregory 24 also noted that Plaintiff’s medication was held by her husband under lock and key to 25 prevent future suicide attempts. Id. On August 6, 2014, Counselor Gregory noted that 26 Plaintiff was cooperative but appeared somewhat confused in her reports at times, and her 27 9 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 10 of 26 1 mood was anxious. T 595. 2 On August 15, 2014, Counselor Gregory opined that Plaintiff had extreme 3 limitations in her ability to understand and remember very short and simple instructions; 4 understand and remember detailed instructions; carry out detailed instructions; maintain 5 attention and concentration for extended periods; sustain an ordinary routine without 6 special supervision; work in coordination with or in proximity to others without being 7 8 distracted by them, make simple work-related decisions; complete a normal workday 9 without interruptions from psychologically based symptoms; complete a normal 10 workweek without interruptions from psychologically based symptoms; perform at a 11 consistent pace with a standard number and length of rest periods; accept instructions and 12 respond appropriately to criticism from supervisors; get along with coworkers or peers 13 without distracting them or exhibiting behavioral extremes; respond appropriately to 14 15 changes in the work setting; travel in unfamiliar places or use public transportation; and 16 set realistic goals or make plans independently of others. T 554-556. 17 On September 4, 2014, Counselor Gregory saw Plaintiff and noted that her 18 "principal treating diagnosis" was major depressive disorder. T 592. On November 6, 19 2014, Counselor Gregory noted Plaintiff reported that she was not feeling "like herself." 20 T 741. On December 11, 2014, Counselor Gregory noted that Plaintiff attended the 21 appointment with her husband and reported that her symptoms had been steady. T 737. 22 23 On January 6, 2015, Plaintiff’s treating Counselor Kari Froelicher, MA, LPC, 24 noted Plaintiff’s mood was depressed and anxious and her behavior was distractible. T 25 771. On January 13, 2015, Counselor Froelicher noted that she worked on mindfulness 26 skills with the Plaintiff. T 772. On January 20, 2015, Counselor Froelicher noted that 27 10 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 11 of 26 1 Plaintiff had an anxious mood and distractible behavior. T 773. On January 27, 2015, 2 Counselor Froelicher noted Plaintiff’s mood was depressed, her behavior was distractible 3 and her cognition was disorganized. T 774. On March 19, 2015, Counselor Froelicher 4 opined that Plaintiff had marked limitations in her ability to complete a normal workweek 5 without interruptions from psychologically based symptoms and marked limitations in 6 her ability to accept instructions and respond appropriately to criticism from supervisors. 7 8 T 745-747. 9 On March 24, 2015, Plaintiff’s primary care physician, Todd Kravetz, M.D., 10 opined that Plaintiff’s symptoms would constantly interfere with the attention and 11 concentration required to perform simple work-related tasks. T 765. Dr. Kravetz also 12 opined that Plaintiff would need to recline or lie down during a hypothetical eight-hour 13 workday in excess of the typical breaks. Id. Dr. Kravetz further opined that Plaintiff 14 15 could walk zero city blocks without rest or significant pain. Id. Dr. Kravetz also opined 16 that Plaintiff could sit for 30 minutes and stand/walk for 30 minutes at one time. Id. Dr. 17 Kravetz further opined that Plaintiff could sit for three hours and stand/walk for three 18 hours total in an eight-hour workday. Id. Dr. Kravetz also opined that Plaintiff needed a 19 job which permitted shifting positions at will from sitting, standing, or walking. Id. Dr. 20 Kravetz further opined that Plaintiff needed to take hourly unscheduled breaks for 21 variable amounts of time depending on medication use. Id. Dr. Kravetz also opined that 22 23 Plaintiff could occasionally lift and carry less than ten pounds, but could never lift and 24 carry ten pounds or more. T 766. Dr. Kravetz further opined that Plaintiff could only use 25 her hands, fingers, and arms for 20 percent of the workday. Id. Dr. Kravetz also opined 26 that Plaintiff would miss work more than four times a month and was not physically 27 11 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 12 of 26 1 capable of working an eight-hour day, five days a week employment on a sustained basis. 2 Id. 3 B. Hearing Testimony 4 At the hearing, Plaintiff’s counsel, (unaffiliated with this law firm), amended the 5 alleged onset date to January 1, 2014, since Plaintiff collected unemployment in 2013. T 6 7 51. Plaintiff has chronic back pain and mental health issues. Id. (Primary mental health 8 diagnosis was thought by counselors to be bipolar two disorder, but also may include 9 depression and anxiety. Id.) Plaintiff was also fired from her previous job and ended up 10 getting a misdemeanor assault charge after she threw everything off the desk of her 11 supervisor and something allegedly hit someone. T 52. 12 Plaintiff testified: On good days she may answer the phone at her husband’s business, 13 (an hour every now and then), but she has not been able to focus lately. T 55-56. She 14 15 had problems with her coworkers at her previous job and was transferred to another 16 office for more supervision. T 57. She discussed her current mental health treatment and 17 the therapy group she is in and reported it had been helping some of her symptoms. Id. 18 She also reported that she became anxious around others, and was unsure whether she 19 would be able to control her anger. T 58-59. She further testified that her chronic pain 20 was so severe that it kept her from working even if she was no longer depressed. T 61. 21 22 C. Vocational Expert’s Testimony 23 The Vocational Expert ("VE") testified there was no full-time work that someone 24 of Plaintiff’s age, education, and experience who could sit for three hours total and stand 25 and walk for three hours total in an eight-hour day (based on exhibit 39F). T 63. The VE 26 27 12 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 13 of 26 1 also testified that there was not any full-time work for someone with Plaintiff’s profile 2 would be absent four times a month. Id. The VE further noted that a hypothetical 3 individual with Plaintiff’s profile who could perform a range of medium work but needed 4 work that was limited to tasks that can be learned by demonstration within 30 days, 5 needed work with no in-person interaction with the public, minimal interaction with co-6 workers and supervisors; could work in the vicinity of others but should work with 7 8 things, not data or people, would be unable to do Plaintiff’s past relevant work but that 9 there was work available in the regional or national economy including: motor vehicle 10 assembler (DOT #806.684-010), salvage laborer (DOT #929.687-022), and laboratory 11 equipment cleaner (DOT #381.687-022). T 63-64. The VE also testified that there was 12 no work for a person with Plaintiff’s profile and with marked limitations in her ability to 13 complete a normal work week without interruption from psychologically based 14 15 symptoms, and the ability to accept instructions and respond appropriately to criticism 16 from supervisors. T 64-65. 17 Argument 18 Standard of Review 19 Pursuant to 42 U.S.C. §§ 405(g), this Court may review the record to determine 20 whether the Commissioner applied the proper legal standards and whether substantial 21 evidence supports the final agency decision to deny the Plaintiff benefits. 22 23 Substantial evidence means more than a scintilla, "[i]t means such relevant 24 evidence as a reasonable mind might accept as adequate to support a conclusion." 25 Richardson v. Perales, 402 U.S. 389, 400 (1971) (quoting Consolidated Edison Co. v. 26 NLRB, 305 U.S. 229 (1938)); Martinez v. Colvin, No. CV-12-01886, 2013 U.S. Dist. 27 13 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 14 of 26 1 LEXIS 150952, *2-3 (D. Ariz. Oct. 21, 2013) (Wake, J.) ("Substantial evidence is more 2 than a scintilla, less than a preponderance, and relevant evidence that a reasonable person 3 might accept as adequate to support a conclusion considering the record as a whole") 4 (citing Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)). 5 An individual is considered disabled for purposes of disability benefits if he is 6 unable to "engage in any substantial gainful activity by reason of any medically 7 8 determinable physical or mental impairment which can be expected to result in death or 9 which has lasted or can be expected to last for a continuous period of not less than 12 10 months." 42 U.S.C. § 423(d)(1)(A). 11 The Commissioner uses a five-step sequential process to determine whether the 12 Plaintiff has met the burden of proving disability. The Plaintiff must prove at step one 13 that he is not undertaking substantial gainful activity. See 20 C.F.R. § 404.1520(c). At 14 15 step two, the Plaintiff must prove that he is suffering from a severe impairment or 16 combination of impairments which significantly limits his ability to perform basic work-17 related activities. See 20 C.F.R. § 404.1520(c). At step three, if the impairment meets 18 one of the listed impairments in Appendix 1 to Subpart P of Part 404 (Listing of 19 Impairments), the Plaintiff will be considered disabled without consideration of age, 20 education and work experience. See 20 C.F.R. § 404.1520(d). At step four, if the 21 Plaintiff is unable to prove the existence of a listed impairment, he must prove that the 22 23 impairment prevents performance of past relevant work. See 20 C.F.R. § 404.1520(e). 24 At step five, the regulations direct the Commissioner to consider the Plaintiff's 25 residual functional capacity, age, education, and past work experience to determine 26 whether the Plaintiff can perform other work besides past relevant work. See 20 C.F.R. § 27 14 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 15 of 26 1 404.1520 (f). 2 3 1. The RFC is unsupported by substantial evidence due to the ALJ improperly 4 assigning little weight to treating sources. 5 6 Generally, more weight is given to treating sources, "since these sources are likely 7 to be the medical professionals most able to provide a detailed, longitudinal picture of 8 your medical impairment(s)." 20 C.F.R. § 404.1527(c)(2). 9 The Ninth Circuit has held that "[w]here the treating doctor’s opinion is not 10 contradicted by another doctor, it may be rejected only for clear and convincing reasons 11 12 supported by substantial evidence in the record. Even if the treating doctor’s opinion is 13 contradicted by another doctor, the administrative law judge (ALJ) may not reject this 14 opinion without providing specific and legitimate reasons supported by substantial 15 evidence in the record." Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (emphasis 16 added). See also Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995) ("[L]ike the 17 opinion of a treating doctor, the opinion of an examining doctor, even if contradicted by 18 19 another doctor, can only be rejected for specific and legitimate reasons that are supported 20 by substantial evidence in the record.") (emphasis added) (citing Pitzer v. Sullivan, 908 21 F.2d 502, 506 (9th Cir. 1990) and Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 22 1995)). Indeed, the Ninth Circuit has indicated that when the ALJ accords less than 23 dispositive weight to a treating opinion because it is contradicted by other evidence, the 24 ALJ may not "simply disregard it" and "[t]he ALJ is required to consider the factors" set 25 out in the regulations for weighing opinion evidence. See Ghanim v. Colvin, 763 F.3d 26 27 15 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 16 of 26 1 1154, 1161 (9th Cir. 2014). See also Garrison v. Colvin, 759 F. 3d 995, 1012—13 (9th 2 Cir. 2014) (An ALJ "errs when he rejects a medical opinion or assigns it little weight 3 while doing nothing more than ignoring it, asserting without explanation that another 4 medical opinion is more persuasive, or criticizing it with boilerplate language that fails to 5 offer a substantive basis for his conclusion."). These factors include: (i) the length of the 6 treatment relationship and the frequency of examination; (ii) the nature and extent of the 7 8 treatment relationship; (iii) the evidence in support of the treating physician's opinion; 9 (iv) the consistency of the opinion with the record as a whole; (v) whether the opinion is 10 from a specialist; and (vi) other factors that tend to support or contradict the opinion. 20 11 C.F.R. §§ 404.1527(c)(2)-(6). 12 Treating psychiatrist Dr. Purewal opined that Plaintiff had extreme limitations in 13 her ability to understand and remember detailed instructions; carry out detailed 14 15 instructions, maintain attention and concentration for extended periods; perform activities 16 within a schedule, maintain regular attendance, and be punctual within customary 17 tolerances; complete a normal workweek without interruptions from psychologically 18 based symptoms; perform at a consistent pace with a standards number and length of rest 19 periods; accept instructions and respond appropriately to criticism from supervisors; get 20 along with coworkers or peers without distracting them or exhibiting behavioral 21 extremes; respond appropriately to changes in the work setting; travel in unfamiliar 22 23 places or use public transportation; set realistic goals or make plans independently of 24 others. T 544-546. 25 The Ninth Circuit has held that "[w]here an [ALJ] fails to provide adequate 26 reasons for rejecting the opinion of a treating or examining physician, we credit that 27 16 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 17 of 26 1 opinion as a matter of law." Lester at 834 (internal quotations omitted). In giving Dr. 2 Purewal’s opinion little weight, the ALJ reasoned that Dr. Purewal’s opinion was 3 inconsistent with her own notes and that Dr. Purewal had a limited treating relationship 4 with Plaintiff. T 30. However, the ALJ’s reasoning was faulty. Dr. Purewal treated 5 Plaintiff every week or two since September 3, 2013, and the record shows that Dr. 6 Purewal met with the Plaintiff at least ten times before completing the mental capacity 7 8 assessment (11 if you include the visit where Dr. Purewal completed the mental capacity 9 assessment). T 531-546. Further, as described in the statement of facts, Plaintiff 10 attempted suicide during this period and Dr. Purewal noted that Plaintiff had suicidal 11 intent on at least two visits, and "contracted for safety" on at least three other visits. 12 T533, 535-538. (The Journal of the American Academy of Psychiatry and the Law 13 explains that "contracting for safety" is a procedure used to help encourage suicidal 14 15 clients from attempting suicide or self harm. http://jaapl.org/content/37/3/363, Accessed 16 7/7/17). 17 Another treating provider, Stacey Gregory, PMHNP-BC, opined that Plaintiff had 18 extreme limitations in her ability to understand and remember detailed instructions; carry 19 out detailed instructions; maintain attention and concentration for extended periods; 20 travel in unfamiliar places or use public transportation; and set realistic goals or make 21 plans independently of others. T 626-628. Counselor Gregory also opined that Plaintiff 22 23 had marked limitations in her ability to remember locations and work-like procedures; 24 perform activities within a schedule, maintain regular attendance, and be punctual within 25 customary tolerances; sustain an ordinary routine without special supervision; respond 26 27 17 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 18 of 26 1 appropriately to changes in the work setting; and set realistic goals or make plans 2 independently of others. Id. 3 As with Dr. Purewal above, the ALJ also erroneously gave Counselor Gregory’s 4 opinion only "little weight". T 30. While Counselor Gregory is not considered an 5 "acceptable medical source" under § 404.1502, at the time of application and decision, 6 SSR 06-3p required the ALJ to evaluate Counselor Gregory’s opinion based on factors 7 8 similar to the analysis given to acceptable medical sources described above. Here, the 9 ALJ explained that she gave Counselor Gregory’s opinion reduced weight due to the 10 opinions being unsupported by Counselor Gregory’s treatment notes that showed 11 improvement in Plaintiff’s symptoms. T 30. Specifically, the ALJ contends that notes "a 12 month prior to the date of the assessment indicate that the Plaintiff was cooperative and 13 focused, with fair insight and good interaction and attention." Id. This is an unfair 14 15 characterization of Plaintiff’s mental status on the date at issue. Counselor Gregory’s 16 mental status opinion was given on October 5, 2014, so presumably the ALJ was 17 referring to Plaintiff’s September 4, 2014 visit. T 590-593. However, at that visit 18 Counselor Gregory assessed Plaintiff’s GAF score at "50", which indicates "serious 19 symptoms or impairments." T 592. Strangely, in the paragraph directly below the ALJ’s 20 assertion that Counselor Gregory’s opinion deserved little weight because of a slight 21 improvement at one visit, the ALJ tried to dismiss Plaintiff’s GAF score at this visit as a 22 23 "mere snapshot." T 30. However, relying on only one visit to reduce the weight given to 24 the opinion of someone who has seen the Plaintiff multiple times is using the "mere 25 snapshot" approach that the ALJ just discredited. The ALJ is talking out of both sides of 26 her mouth by accepting a "mere snapshot" of the Plaintiff’s visit a month before the 27 18 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 19 of 26 1 evaluation but dismissing the "snapshot" of the GAF score. (It should also be noted that 2 Counselor Gregory actually assigned Plaintiff a GAF score at each visit and the scores 3 ranged from 50 to 51 and therefore actually showed a slight decrease at the visit in 4 question. T 592, 602, 610, 619.) 5 Therefore, the ALJ’s assertion that Plaintiff’s symptoms were improved is not 6 supported by substantial evidence. Further, even assuming arguendo that the Plaintiff’s 7 8 symptoms were "improved", it does not necessarily mean that Plaintiff still does not meet 9 the requirements to be found disabled by the SSA. In fact, the ALJ is unintentionally 10 affirming that Plaintiff is severely impaired if even when her symptoms are "improved" 11 she still has such extreme limitations in all four areas of mental functioning. 12 Dr. Purewal and Counselor Gregory’s opinions should have been given controlling 13 and greater weight, respectively, and the ALJ’s failure to provide specific and legitimate 14 15 reasons for discounting these opinions constituted reversible error. See Ghanim, 763 16 F.3d at 1161; Garrison, 759 F. 3d at 1012-13. Dr. Purewal and Counselor Goldman had 17 seen Plaintiff multiple times and both of them had a treatment relationship with her. T 18 531-546, 554-556, 588-628; 20 C.F.R. § 404.1527(c)(2), SSR 06-3p. The evidence in the 19 record supports Dr. Purewal and Counselor Gregory’s opinions. C.F.R. § 20 404.1527(c)(3); SSR 06-3p. As explained in detail in section A, Plaintiff has a long 21 history of mental health issues including at least two suicide attempts. T 381, 585. 22 23 Plaintiff was also fired from her job and charged with disorderly conduct when she 24 became physically and verbally violent after her supervisor reprimanded her. T 194-196. 25 Plaintiff’s records, treatment notes, and behavior more than support her significant 26 mental limitations. Further, as a board certified psychiatrist, Dr. Purewal is a specialist 27 19 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 20 of 26 1 and as such, exceptionally qualified to make an opinion regarding Plaintiff’s limitations. 2 20 C.F.R. § 404.1527(c)(5). The ALJ’s reasons for discounting Dr. Purewal’s and 3 Counselor Gregory’s opinions are not legally sufficient and as such, the opinions should 4 be credited as true and given controlling weight. Benecke v. Barnhart, 379 F.3d 587, 594 5 (9th Cir. 2004) (where the ALJ failed to provide legally sufficient reasons for rejecting 6 the treating physician’s opinion, the Court credited the evidence as true). 7 8 Discrediting Dr. Purewal’s and Counselor Gregory’s opinions is harmful error 9 since the failure to give them controlling or great weight necessarily rendered the Step 3 10 finding unsupported. At Step 3, the ALJ found that Plaintiff does have an impairment 11 that meets the severity of one of the listed impairments. T 23. Specifically, the ALJ 12 found that Plaintiff did not meet the "paragraph B" criteria of listings 12.04 and 12.06. 13 Id. To satisfy the "paragraph B" criteria, the mental impairments must result in or a 14 15 marked limitation of two of the following areas: understand, remember, or apply 16 information; interact with others; concentrate, persist, or maintain pace; or adapt or 17 manage oneself. 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 12.04B. Dr. 18 Purewal opined that Plaintiff had at least marked limitations in understanding and 19 memory, sustained concentration and persistence, social interaction, and adaptation. T 20 544-546. Counselor Gregory opined that Plaintiff had extreme limitations in 21 understanding and memory, sustained concentration and persistence, social interaction, 22 23 and adaptation. T 554-556. Counselor Gregory even explained the rationale behind her 24 opinion on the assessment. Id. To support Plaintiff’s extreme limitations in 25 understanding and memory, Counselor Gregory noted that "patient’s husband has to be 26 27 20 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 21 of 26 1 with her at appointment as patient is confused about when things happened, sequences of 2 events and reports of daily routines is difficult due to memory issues." T 554. 3 Regarding Plaintiff’s extreme limitations in sustained concentration and 4 persistence, Counselor Gregory wrote: "Patient can’t recall my instructions within our 5 half hour session, instructions are given repeatedly. Husband is in attendance to recall 6 and grasp instructions." T 555. Counselor Gregory supported extreme limitations in 7 8 social interaction by stating: "patient is friendly and interactive. However, her 9 verbalizations can be repetitive, intrusive, and lengthy. This pattern is sometimes a 10 reason that people can’t be near her for lengthy periods of time as she doesn’t see (the) 11 need to allow others to talk." Id. Finally, Plaintiff’s adaptation limitations were described 12 by Counselor Gregory as: "Anxiety appears too high for independent travel. Memory 13 and processing of new info is poor. Getting lost is high probability." T. 556. Dr. Purewal 14 15 and Counselor Gregory’s opinions (and Counselor Froelicher’s opinion below) all 16 indicate that Plaintiff meets the "paragraph B" criteria of the Listings. In other words, all 17 three1 of Plaintiff’s treating mental health sources agree that Plaintiff has at least 18 "marked" limitations in at least two "paragraph "B" categories. T 544-546, 554-556, 19 745-747. As such, failure to give these opinions controlling or greater weight is harmful 20 error and this matter should be remanded for payment of benefits, or, alternatively, for 21 further review. 22 23 1 Counselor Froelicher’s opinion, and the ALJ’s error in assigning weight, is 24 discussed in depth in argument 3. 25 26 27 21 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 22 of 26 1 2 2. The ALJ’s reliance on the opinions of the CEs and SAMCs is reversible error 3 because they did not have access to crucial information in the record. 4 In failing to give Dr. Purewal controlling weight and Counselor Gregory greater 5 weight, as described in the argument above, the ALJ instead gave "significant weight" to 6 the CEs and SAMCs. T 28-29, 31. However, neither of the CEs were provided with 7 8 Plaintiff’s medical records, and neither the CEs nor SAMCs had the Plaintiff’s complete 9 record on which to base their opinions. T 68-101, 496, 505. This is reversible error and 10 requires remand. Pruitt v. Astrue, 2010 WL 1330164, at *4 (C.D. Cal. Mar. 31, 2010) 11 (remand was required where the ALJ relied on a CE’s opinion who did not review all of 12 plaintiff’s medical records); see 20 C.F.R. § 404.1517 ("If we arrange for [a consultative] 13 examination or test,... [w]e will also give the examiner any necessary background 14 15 information about your condition."). Specifically, neither CE Dr. Kunsman nor CE Dr. 16 Gill reviewed any medical records at all before rendering their opinions. T 496, 505. 17 None of the CEs in the record had the benefit of viewing any of Plaintiff’s medical 18 records, in violation of 20 C.F.R. § 404.1517. See Ladue v. Chater, No. c-95-0754 EFL, 19 1996 WL 83880, at *5 (N.D. Cal. Feb. 16, 1996) (remand was required where the ALJ 20 gave considerable weight to a CE who was only given one progress note, in violation of 21 20 C.F.R. § 404.1517). Here, the CEs were not even given a single record at all, as they 22 23 note themselves on their evaluations. T 496, 505. As noted throughout this brief and in 24 the record, Plaintiff has an extensive history of mental health treatment and both 25 objective and subjective notes and opinions regarding her mental and physical health. 26 The CEs were not given the opportunity to take any of this history into account when 27 22 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 23 of 26 1 they decided their opinions. Instead, to use the language of the ALJ, the CEs only had a 2 "mere snapshot" of Plaintiff’s physical and mental limitations and therefore required a 3 more fully developed record in order to issue an accurate opinion of Plaintiff’s 4 limitations, as required by 20 C.F.R. § 404.1517. 5 6 Additionally, the most recent CE and SAMC opinion was issued in April of 2014. 7 8 T 68-101, 496-512. As such, they did not have the benefit of reviewing any of the 9 medical evidence after that. Specifically, none of them reviewed the records regarding 10 Plaintiff’s treatment with Counselor Gregory, Dr. Froelicher, and Dr. Kravitz. This is 11 approximately half the Plaintiff’s medical records from the relevant period. T 587-774. 12 As such, these opinions "cannot constitute substantial evidence justifying rejection of the 13 opinion of [Plaintiff’s] treating physician." See Jackson v. Astrue, No. 2-10-2401 EFB 14 15 (TEMP), 2012 WL 639304, at *4 (E.D. Cal. Feb. 24, 2012); Pruitt, 2010 WL 1330164, at 16 *4. Further, the regulations favor the opinions of treating physicians over non-treating 17 and examining physicians over non-examining. 20 C.F.R. § 416.1527(c). The CEs only 18 met with Plaintiff once to determine disability, not for the purpose of treatment. The 19 SAMCs, as nonexamining physicians, only had the opportunity to review Plaintiff’s 20 medical records, which were incomplete. Therefore, failure to provide CEs with 21 necessary medical records is harmful error and this matter should be remanded for further 22 23 review. 24 25 3. The ALJ’s failure to develop the record by failing to subpoena the records of 26 Plaintiff’s treating Counselor Froelicher is reversible error. 27 23 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 24 of 26 1 The ALJ has a responsibility to develop the record, even when the Plaintiff is 2 represented by counsel. See Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996) (citing 3 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). When the ALJ finds that the record 4 is inadequate, he or she must conduct an appropriate inquiry. See Smolen v. Chater, 80 5 F.3d 1273, 1288 (9th Cir. 1996). SSA regulations allow the ALJ to issue subpoenas if 6 necessary to develop the record. See 20 C.F.R. § 404.950(d). The statute (as it stood at 7 8 the time of the decision) states: 9 "When it is reasonably necessary for the full presentation of a case, an administrative law judge or a member of the Appeals Council may, on his or her own 10 initiative…issue subpoenas for the appearance and testimony of witnesses and for the production of…records...or other documents that are material to an issue at the 11 hearing." 20 C.F.R. § 404.950(d)(1)(Effective June 20, 2013 to January 16, 2017). 12 Here, treating Counselor Kari Froelicher, MA, LPC, opined that Plaintiff had marked 13 impairments in her ability to complete a normal workweek without interruptions from 14 15 psychologically based symptoms, and had marked limitations in her ability to accept 16 instructions and respond appropriately to criticism from supervisors. T 746. Even 17 though the ALJ admits that the treatment history between Counselor Froelicher and 18 Plaintiff is "significant", the ALJ only gave Ms. Froelicher’s opinion partial weight. T 19 30. The ALJ explains this reduced weight by stating that, "Ms. Froelicher refused to 20 release her treatment records (see Exhibit 20E), so there is limited evidence to support 21 her opinion. Instead, her opinion consists of checked boxes on a form with no 22 23 explanations." Id. [The "Exhibit 20E" (at T 282-282) that the ALJ refers to is a letter 24 from Plaintiff’s representative stating that the representative had made "diligent efforts" 25 in trying to obtain Plaintiff’s treatment records from Counselor Froelicher and 26 "respectfully request(s) that a subpoena be issued for these records." T 282. There is no 27 24 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 25 of 26 1 evidence in the record of the ALJ responding to the written request by Plaintiff’s counsel 2 to issue a subpoena for the records. At the hearing, Plaintiff’s attorney explained once 3 again to the judge that Counselor Froelicher refused to release her treatment records, but 4 the judge merely acknowledged the statement without taking action. T 50. 5 The evidence shows that the ALJ not only failed to develop the record by 6 subpoenaing the records at issue as required by Crane and Smolen, supra, but also 7 8 seemed to ignore the request by Plaintiff’s administrative level attorney to subpoena the 9 required evidence. Further, the ALJ holds this dereliction of responsibility against the 10 Plaintiff by giving an otherwise favorable opinion backed up by an extensive treating 11 relationship only "partial" weight because of the lack of records. T 30. The ALJ had it in 12 her power to demand access those records, yet chose not to, which was already unfair to 13 the Plaintiff. Then to penalize the Plaintiff for Counselor Froelicher’s reluctance to 14 15 proffer records just adds insult to injury. 16 The ALJ’s failure to develop the record constitutes reversible error when it prejudices 17 the Plaintiff. See Garcia v. Commissioner of Social Security, 768 F.3d 925, 934 (9th Cir. 18 2014). Prejudice can be proven in this instance by the ALJ’s own explanation of the 19 reduction in weight given to Counselor Froelicher’s opinion due to a lack of support via 20 treatment notes. T 30. Therefore, the ALJ’s failure to subpoena records from Counselor 21 Froelicher, whether at the ALJ’s independent request or at the request of Plaintiff’s 22 23 counsel, was prejudicial to the Plaintiff and is therefore reversible error and warrants 24 remand. 25 Conclusion 26 27 25 28 Case 3:17-cv-08027-MHB Document 14 Filed 07/11/17 Page 26 of 26 1 For the foregoing reasons, it is respectfully requested this matter be remanded for 2 further proceedings, including a de novo hearing and decision to address these errors. 3 4 Respectfully submitted, 5 6/s/Howard D. Olinsky Howard D. Olinsky, Esq. 7 Attorney for Plaintiff Olinsky Law Group 8 One Park Place 9 300 South State St., Suite 420 Syracuse, New York 13202 10 Phone: (315) 701-5780 Email: holinsky@windisability.com 11 12 13 14 15 KIT 16 17 18 19 20 21 22 23 24 25 26 27 26 28

RESPONSE BRIEF by Commissioner of Social Security Administration.

Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 1 of 25 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Daphne Banay 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA21537 8 Fax: (206) 615-2531 daphne.banay@ssa.gov 9 Telephone: (206) 615-2113 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Melissa Dionne Labrusciano, 14 No. CV-17-08027-PCT-MHB 15 Plaintiff, 16 DEFENDANT'S BRIEF vs. 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 STANDARD OF REVIEW 22 Plaintiff seeks judicial review of the final administrative decision finding her not 23 disabled and, therefore, not entitled to disability insurance benefits under Title II of the 24 25 Social Security Act, 42 U.S.C. §§ 401-433 (Transcript ("Tr.") at 17-34). The standard of 26 review is whether the Commissioner of Social Security’s final decision is supported by 27 substantial evidence and free of legal error. Morgan v. Comm’r of the Soc. Sec. Admin., 28 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 2 of 25 1 169 F.3d 595, 599 (9th Cir. 1999). This is a highly deferential standard of review. 2 Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). 3 Substantial evidence is more than a mere scintilla but less than a preponderance, see 4 5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999), and does not mean a large or 6 considerable amount of evidence. See Pierce v. Underwood, 487 U.S. 552, 565 (1988). 7 Substantial evidence means such relevant evidence as a reasonable mind might accept as 8 adequate to support a conclusion. See Morgan, 169 F.3d at 599. Where the evidence is 9 10 susceptible to more than one rational interpretation, it is the administrative law judge’s 11 (the ALJ’s) conclusion that must be upheld. See id. 12 ISSUES 13 14 Defendant characterizes the issues raised by Plaintiff (Plaintiff’s Brief (Pl.’s Br. at 15 1)) as follows: (1) Has Plaintiff demonstrated that the ALJ’s residual functional capacity 16 finding was unsupported by substantial evidence when the ALJ was not required to adopt, 17 18 and properly determined to give little weight to, the opinions of treating sources?; (2) 19 Should this Court find that Plaintiff waived the issue of records review by the 20 nonexamining State Agency medical consultants and the consultative examiners, and that 21 if the Court nevertheless considers this issue find that Plaintiff has not demonstrated any 22 23 error or reversible harmful error?; and (3) Has Plaintiff demonstrated that the ALJ erred 24 in the development of the record based on Plaintiff’s untimely and incomplete subpoena 25 request for Counselor Froelicher’s records? 26 27 28 2 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 3 of 25 1 STATEMENT OF THE CASE AND SEQUENTIAL EVALUATION PROCESS FINDINGS 2 3 On July 12, 2013, Plaintiff filed an application for disability insurance benefits, 4 alleging disability beginning on April 19, 2013 (Tr. 20, 164, 164-170). However, at her 5 May 11, 2015 hearing before an ALJ, Plaintiff, through counsel, amended her alleged 6 disability onset date to January 1, 2014 (Tr. 20, 51). The application was denied initially 7 8 and on reconsideration (Tr. 20, 103-107, 113-115). After holding a hearing on May 11, 9 2015, an ALJ issued a decision in which the ALJ applied the five-step sequential 10 evaluation process (20 C.F.R. § 404.1520) for determining whether a claimant is disabled 11 12 (Tr. 17-34, 47-66), and found that Plaintiff was not disabled at step five because she 13 could perform other work existing in significant numbers in the national economy in 14 representative occupations such as a motor vehicles assembler, a salvage laborer, and a 15 16 laboratory equipment cleaner (Tr. 32-33). On December 13, 2016, the Appeals Council 17 denied Plaintiff’s request for review (Tr. 1-7), making the ALJ’s decision the 18 Commissioner’s final decision subject to judicial review. See 20 C.F.R. §§ 404.981, 19 422.210. 20 21 STATEMENT OF FACTS 22 At the time of the January 1, 2014 amended alleged disability onset date, Plaintiff 23 was 41 years old (Tr. 29, 32, 51). She had at least a high school education and past 24 25 relevant work experience as a customer service representative and as a secretary (Tr. 32, 26 62-63, 209,). Plaintiff alleged disability because of: "Pelvic/back issues, sacroilitis, 27 depression, mental issue" (Tr. 208). 28 3 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 4 of 25 1 ARGUMENT 2 1. Plaintiff Has Not Demonstrated That The ALJ’s Residual Functional Capacity 3 Finding Was Unsupported By Substantial Evidence When The ALJ Was Not Required To Adopt, And Properly Determined To Give Little Weight To, The 4 Opinions Of Treating Sources. 5 The Ninth Circuit has stated that, in some circumstances, ALJs must provide 6 "clear and convincing reasons" to reject a claimant’s testimony or a medical source’s 7 8 opinion. Chaudhry v. Astrue, 688 F.3d 661, 670-71 (9th Cir. 2012); Turner v. Comm’r of 9 Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010). Agency rules do not require "clear and 10 convincing" reasons, however, and courts must apply the extremely deferential 11 12 "substantial evidence" standard of review prescribed by Congress, 42 U.S.C. § 405(g), 13 which does not require that an ALJ’s reasons be especially compelling or convincing. In 14 stark contrast, the clear and convincing standard "is not an easy requirement to meet." 15 16 Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014). While the clear and convincing 17 reasons standard of review is the law of the Ninth Circuit, the Commissioner maintains 18 that the standard is inconsistent with the deferential substantial evidence standard of 19 review set forth in 42 U.S.C. § 405(g). Therefore, the clear and convincing reasons 20 21 standard should not apply. Because the ALJ’s reasons suffice under any standard, this 22 disagreement need not be resolved. Here, and contrary to Plaintiff’s assertions (Pl.’s Br. 23 at 19), the ALJ provided "specific and legitimate reasons" to reject the opinion of treating 24 25 psychiatrist Santinder Purewal, M.D. (Tr. 30, 544-546), and the ALJ was not required to 26 give "specific and legitimate" reasons to reject the opinions of treating psychiatric mental 27 nurse health practitioner (PMHNP) Stacey Gregory (Tr. 30, 554-556, 626-628). Instead, 28 4 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 5 of 25 1 an ALJ may reject the opinion from "other sources", who are not an "acceptable medical 2 source"—which in this case, was Nurse Practitioner Gregory—by providing germane 3 reasons for doing so. See Turner v. Comm’r of the Soc. Sec. Admin., 613 F.3d 1217, 4 5 1223-1224 (9th Cir. 2010); see also SSR 06-03p, available at 2006 WL 2329939, *2. 6 Moreover, and contrary to Plaintiff’s assertions (Pl.’s Br. at 19), the ALJ was not required 7 to give controlling weight to Dr. Purewal’s opinion or greater weight to Nurse 8 Practitioner Gregory’s opinions. The Ninth Circuit recognizes that although even a 9 10 treating physician’s opinion is generally afforded the greatest weight in disability cases, 11 even a treating physician’s opinion is not binding on an ALJ with respect to the existence 12 of an impairment or the ultimate determination of disability. Batson v. Comm’r of Soc. 13 14 Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). The ALJ may disregard even a 15 treating physician’s opinion whether or not that opinion is contradicted. Id. at 1195. 16 On March 20, 2014, treating psychiatrist Dr. Purewal completed a mental capacity 17 18 assessment opining that Plaintiff had moderate, marked, and extreme limitations in 19 mental abilities (Tr. 544-546). The ALJ gave little weight to Dr. Purewal’s opinion based 20 upon her limited treating relationship with Plaintiff (Tr. 30, 544-546). Plaintiff disagrees 21 with the ALJ’s rejection of Dr. Purewal’s opinion on this basis by asserting that Dr. 22 23 Purwal met with Plaintiff at least 10 times before completing the mental capacity 24 assessment or 11 if the visit Dr. Purwal completed the assessment is included, citing to 25 Tr. 531-546 (Pl.’s Br. at 17). However, the records Plaintiff cites to reflected only 9 26 27 visits, and not 10 or 11 visits as Plaintiff asserts (Pl.’s Br. at 17; Tr. 533, 534, 535, 536, 28 537, 538, 540, 541 (Tr. 541 is duplicated at Tr. 532), Tr. 542 (Tr. 542 is duplicated at Tr. 5 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 6 of 25 1 531)). Also, the ALJ noted that "Moreover, the claimant has not treated with Dr. Purewal 2 since early 2014, which suggests that this is not an accurate reflection of the claimant's 3 mental limitations during the relevant period." (Tr. 30, 540; Tr. 20, where the ALJ noted 4 5 that the relevant period was from January 1, 2014, the date of Plaintiff’s amended alleged 6 onset date of disability and extending through the June 26, 2015 date of the ALJ’s 7 decision (Tr. 17, 20, 51)). In determining the weight to give to a treating source’s 8 opinion, the ALJ may consider the length of the treatment relationship. 20 C.F.R. § 9 10 404.1527(c)(2)(i). 11 The ALJ also rejected Dr. Purewal’s opinion because her own treatment notes did 12 not support the opinion, with the ALJ noting that: 13 14 Specifically, in treatment notes from the same day she completed the assessment, Dr. Purewal noted that the claimant was having more good 15 days than bad, and exhibiting appropriate, cooperative, and relaxed 16 behavior, with logical and appropriate thought process and intact judgment and insight (Exhibit 19F/2). In the several months prior to completing the 17 assessment, Dr. Purewal observed the claimant to be depressed, but with 18 intact insight and the ability to make sensible decisions (Exhibits 18F; 19F/3). 19 20 (Tr. 30, 542, 533, 534, 537, 538, 540, 541). An ALJ may reject even a treating 21 doctor’s opinion that is not supported by the doctor’s own treatment notes. See 22 Connett v. Barnhart, 340 F.3d 871, 874-875 (9th Cir. 2003). Plaintiff’s exception 23 24 to the ALJ’s above reason to reject Dr. Purewal’s opinion by pointing to the facts 25 about attempted suicide, suicidal intent, and contracting for safety (Pl.’s Br. at 17) 26 is misplaced because Dr. Purewal’s opinion did not concern these factors but 27 28 instead was a mental capacity assessment of Plaintiff’s mental abilities (Tr. 554-6 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 7 of 25 1 556). The ALJ therefore properly rejected Dr. Purewal’s opinion of Plaintiff’s 2 mental abilities on the basis that it was not supported by Dr. Purewal’s own 3 treatment notes (Tr. 30). See Connett, 340 F.3d at 874-875. An ALJ may reject a 4 5 doctor’s opinion of a claimant’s limited abilities when it is contradicted by that 6 doctor’s own clinical notes or other recorded observations. See Bayliss v. 7 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 8 The ALJ also gave little weight to Nurse Practitioner Gregory’s August 15, 2014 9 10 and October 8, 2014 opinions in mental capacity assessment forms of limitations in 11 Plaintiff’s mental abilities (Tr. 30, 554-556, 626-628). The ALJ rejected Nurse 12 Practitioner Gregory’s opinions because "[t]hey appear to be based on the subjective 13 14 complaints of the claimant, and reports of her husband (see Exhibits 23F/4; 27F/2)." (Tr. 15 30, 556, 626). An ALJ may disregard an opinion that is premised on a claimant’s 16 subjective complaints where the record supports the ALJ in discounting a claimant’s 17 18 credibility. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Because 19 Plaintiff’s opening brief does not present any specific argument that addresses this reason 20 by the ALJ to reject Nurse Practitioner Gregory’s opinion (Pl.’s Br. at 18-21), this Court 21 should find that she has therefore waived the issue. See Bray v. Comm’r of the Soc. Sec. 22 23 Admin., 554 F.3d 1219, 1226, n.7 (9th Cir. 2009) ("This argument, however, was not 24 made in Bray's opening brief; thus, we deem it waived."); see also Carmickle v. Comm’r 25 of the Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) ("We do not address 26 27 this finding because Carmickle failed to argue this issue with any specificity in his 28 briefing.") (citing Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th 7 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 8 of 25 1 Cir. 2003) (noting that we "ordinarily will not consider matters on appeal that are not 2 specifically and distinctly argued in an appellant’s opening brief.")). 3 Furthermore, the ALJ rejected Nurse Practitioner Gregory’s opinions 4 5 because: 6 Additionally, they are not supported by Ms. Gregory's treatment notes, which show the claimant's improvement over the treatment history, and a 7 month prior to the date of the assessment indicate that the claimant was 8 cooperative and focused, with fair insight and good interaction and attention (Exhibit 26F/5). 9 10 (Tr. 30, 591). An ALJ may reject even a treating doctor’s opinion that is not 11 supported by the doctor’s own treatment notes. See Connett v. Barnhart, 340 F.3d 12 13 871, 874-875 (9th Cir. 2003). 14 Plaintiff’s takes exception on the basis that the "The ALJ is talking out of 15 both sides of her mouth by accepting a'mere snapshot’ of the Plaintiff’s visit a 16 17 month before the evaluation but dismissing the'snapshot’ of the GAF score." 18 (Pl.’s Br. at 18-19). However, Plaintiff’s exception is misplaced because, contrary 19 to Plaintiff’s assertions (Pl.’s Br. at 18), the ALJ did not rely on "only one visit", 20 that is, the visit at Tr. 591 (Tr. 30) but also relied on the fact that Nurse Gregory’s 21 22 treatment notes showed improvement over Plaintiff’s treatment history (Tr. 30). 23 The ALJ noted Plaintiff’s improvement in her mental impairment with treatment 24 at Tr. 28 (second paragraph, Tr. 488, 733, 737), which included citation to Nurse 25 26 Gregory’s chart note at Tr. 737. The ALJ also cited to a record by other providers 27 that Plaintiff "[c]ontinues to take Zoloft, Pristiq prescribed by Stacey Gregory 28 8 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 9 of 25 1 Psych NP. Melissa has seen improvement over the past year." (Tr. 28, 733, 2 italicized emphasis added). See Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 3 2012) (Even when an agency explains its decision with less than ideal clarity, the 4 5 Court must uphold it if the agency's path may reasonably be discerned). 6 Therefore, and also contrary to Plaintiff’s further assertions (Pl.’s Br. at 19), the 7 ALJ’s conclusion that Plaintiff’s symptoms improved was supported by 8 substantial evidence (Tr. 28, 30). 9 10 Although Plaintiff disagrees, based on offering her own interpretation of 11 the evidence and weighing of factors that she believes supported giving Dr. 12 Purewal’s and Nurse Practitioner Gregory’s opinions greater weight than the ALJ 13 14 did in her case as she instead would have liked (Pl.’s Br. at 17-20), that is not a 15 sufficient reason to overturn the ALJ’s decision and does not mean as Plaintiff 16 asserts that "the ALJ’s reasoning was faulty" (Pl.’s Br. at 17) or "an unfair 17 18 characterization" (Pl.’s Br. at 18) or that the ALJ’s reasons for rejecting their 19 opinions were "not legally sufficient" (Pl.’s Br. at 20). It is the ALJ, and not the 20 claimant, who is responsible for weighing the evidence for probity and credibility. 21 See Sample v. Schweiker, 694 F.2d 639, 643 (9th Cir. 1982). It is solely the 22 23 ALJ’s responsibility, and not the responsibility of either a claimant’s examining or 24 treating doctors, to determine a claimant’s residual functional capacity. 20 C.F.R. 25 § 416.946(c); see also Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) ("It 26 27 is clear that it is the responsibility of the ALJ, not the claimant's physician, to 28 determine residual functional capacity."). Moreover, even "[w]here the evidence 9 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 10 of 25 1 may reasonably support more than one interpretation, [the Court] may not 2 substitute our judgment for that of the Commissioner." Verduzco v. Apfel, 188 3 F.3d 1087, 1089 (9th Cir. 1999) (insertion in brackets added); see also Young v. 4 5 Sullivan, 911 F.2d 180, 184-185 (9th Cir. 1990) (finding that the claimant could 6 not claim legal error merely because the ALJ saw the evidence differently and the 7 fact that even the district court independently may have considered certain 8 evidence more persuasive than the ALJ did was irrelevant to whether the ALJ’s 9 10 decision was free of legal error and supported by substantial evidence; and 11 recognizing that neither the district court nor the Ninth Circuit Court of Appeals 12 are allowed to choose between supportable factual findings when the ALJ’s 13 14 determination has substantial support in the record). "It is immaterial that the 15 evidence in a case would permit a different conclusion than that which the 16 [Commissioner] reached. If the [Commissioner’s] findings are supported by 17 18 substantial evidence, the courts are required to accept them. It is the function of 19 the [Commissioner], and not the court's to resolve conflicts in the evidence." 20 Sorenson v. Weinberger, 514 F.2d 1112, 1119, n.10 (9th Cir. 1975) (insertions in 21 brackets added). 22 23 In addition, and contrary to Plaintiff’s assertions (Pl.’s Br. at 20-21), 24 Plaintiff has not demonstrated "harmful error" that warrants either remand for 25 payment of benefits or alternatively for further review as Plaintiff requests (Pl.’s 26 27 Br. at 21), based on Dr. Purewal’s and Nurse Gregory’s opinion because the ALJ 28 properly rejected their opinions based on valid reasons for doing so and also 10 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 11 of 25 1 because their opinions do not establish that Plaintiff "meets the'paragraph B’ 2 criteria of the Listings" at step 3 as Plaintiff mistakenly asserts (Pl.’s Br. at 21). 3 Plaintiff’s argument in this regard is further misplaced because Plaintiff misstates 4 5 what the paragraph B criteria of listings 12.04 and 12.06 1 are (Pl.’s Br. at 20, lines 6 16-18), and Dr. Purewal’s and Nurse Gregory’s opinions (nor was Counselor 7 Froelicher’s opinion at Tr. 745-747) were not in the context of an assessment of 8 paragraph B criteria of the listings at step three, 2 but instead were all specifically 9 10 denominated as a "MENTAL CAPACITY ASSESSMENT" that was "To 11 determine this individual’s ability to do work-related activities on a day-to-day 12 basis in a regular work setting[.]" (Tr. 544, 554, 627, 745, capitalized and 13 14 underlined emphasis in original; insertion in brackets added). 15 Therefore, Plaintiff’s argument incorrectly confuses the paragraph B 16 criteria at step 3, with these sources’ opinions instead on her ability to do work-17 18 related mental activities in a work setting (Pl.’s Br. at 20-21). Plaintiff’s ability to 19 20 1 The paragraph B criteria of listing 12.04 (for affective disorders) and listing 12.06 (for anxiety related disorders) require at least two of the following: marked 21 restriction of activities of daily living; marked difficulties in maintaining social 22 functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration. 20 C.F.R. Pt. 23 404, Subpt. P, App. 1, listing 12.04 and listing 12.06; see also Tr. 23 (ALJ 24 decision noting these requirements). 25 2 That these source’s opinions were not in the context of an assessment of the paragraph 26 B criteria of the listings is further underscored by the fact that none of them even contain any opinion as to Plaintiff’s degree of limitation in the paragraph B criteria of activities 27 of daily living (Tr. 544-546, 554-556, 626-628, 745-746). 28 11 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 12 of 25 1 perform these work-related mental activities on a day to day basis in a regular 2 work setting is considered by the ALJ when assessing a claimant’s mental residual 3 functional capacity and is used at steps 4 and 5 of the sequential evaluation 4 5 process. See SSR 96-8p, available at 1996 WL 374184, *2, *3, *4, and ("RFC is 6 the individual's maximum remaining ability to do sustained work activities in an 7 ordinary work setting on a regular and continuing basis, and the RFC assessment 8 must include a discussion of the individual's abilities on that basis. A'regular and 9 10 continuing basis’ means 8 hours a day, for 5 days a week, or an equivalent work 11 schedule."; "[T]he adjudicator must remember that the limitations identified in the 12'paragraph B’ and'paragraph C’ criteria are not an RFC assessment but are used 13 14 to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential 15 evaluation process. The mental RFC assessment used at steps 4 and 5 of the 16 sequential evaluation process requires a more detailed assessment by itemizing 17 18 various functions contained in the broad categories found in paragraphs B and C 19 of the adult mental disorders listings in 12.00 of the Listing of Impairments[.]"; 20 and "RFC is an issue only at steps 4 and 5 of the sequential evaluation process."). 21 Accordingly, and contrary to Plaintiff’s assertions (Pl.’s Br. at 15-21), 22 23 Plaintiff has not demonstrated that the ALJ erred based on Dr. Purewal’s and 24 Nurse Gregory’s opinions, which the ALJ provided valid reasons to reject (Tr. 30). 25///26 27///28///12 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 13 of 25 1 2. This Court Should Find That Plaintiff Waived The Issue Of Records Review By The Nonexamining State Agency Medical Consultants And The Consultative 2 Examiners And If The Court Nevertheless Considers This Issue It Should Find 3 That Plaintiff Has Not Demonstrated Any Error Or Reversible Harmful Error. 4 Plaintiff argues that because the nonexamining State agency medical 5 3 6 consultants ("SAMCs") did not review her entire medical record and because 7 consultative examiners ("CEs") Glenn Kunsman, D.O. (Tr. 30-31, 496-502), and 8 Stephen Gill, Ph.D. (Tr. 28-29, 503-512), did not have any medical records to 9 review in rendering their opinions that the ALJ’s reliance on them by giving them 10 11 more weight than to the opinions of Dr. Purwel and Nurse Practitioner Gregory 12 was reversible harmful error requiring remand (Pl.’s Br. at 22-23). 13 However, Plaintiff’s attorney did not argue at the hearing that the ALJ should not 14 15 give weight to these opinions, or any particular weight at all as was to be deemed 16 appropriate by the ALJ, on the basis that they did not review Plaintiff’s entire medical 17 record or any medical records (Tr. 47-66) and also did not object to admission of the 18 19 exhibits containing their opinions into the record on this or on any other basis (Tr. 49). 20 Plaintiff should not be permitted to now argue on appeal before this Court that the 21 ALJ’s reliance on the opinions of the nonexamining State agency medical consultants 22 and the consultative examiners was reversible harmful error because they did not review 23 24 her entire medical records or any medical records prior to rendering their opinions, 25 3 26 These nonexamining State agency medical consultants were Edith King, Ph.D., and Thomas VanHoose, Ph.D. (Tr. 29, 76-78, 79-80, 93-96, 97-99), and Nancy 27 Armstrong, M.D., and Herbert Meites, M.D. (Tr. 31, 74-75, 92-93). 28 13 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 14 of 25 1 when she did not raise this as an issue at the administrative hearing before the ALJ. 2 This Court should hold that Plaintiff waived this issue on appeal. See Meanel v. Apfel, 3 172 F.3d, 1111, 1115 (9th Cir. 1999) ("We now hold that, at least when claimants are 4 5 represented by counsel, they must raise all issues and evidence at their administrative 6 hearings in order to preserve them on appeal."). 7 Moreover, should the Court nevertheless consider the issue on appeal, in this 8 case, and contrary to Plaintiff’s assertions, Plaintiff still has not shown any harmful 9 10 error required to overturn the ALJ’s decision (Pl.’s Br. at 13-17). Plaintiff has the 11 burden to show an error was harmful. Shinseki v. Sanders, 556 U.S. 396, 409 (2009) 12 (the burden of showing that an error is harmful falls upon the party attacking the 13 14 agency’s determination). A decision of the ALJ will not be reversed for errors that are 15 harmless. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Here, although 16 nonexamining State agency medical consultants Dr. King, Dr. VanHoose, Dr. 17 18 Armstrong, and Dr. Meites (Tr. 29, 76-78, 79-80, 93-96, 97-99; Tr. 31, 74-75, 92-93), 19 and consultative examiners Dr. Kunsman (Tr. 30-31, 496-502), and Dr. Gill (Tr. 28-29, 20 503-512), did not have the opportunity to review all of the records in Plaintiff’s case, 21 the ALJ had the opportunity to review the entire record that was before her in this case 22 23 (Tr. 22, "After careful consideration of the entire record, I make the following 24 findings"), which included not only Dr. Purewal’s (Tr. 30) and Nurse Practitioner 25 Gregory’s opinions, but also Dr. King’s, Dr. VanHoose’s, Dr. Armstrong’s, Dr. Meites’, 26 27 Dr. Kunsman’s, and Dr. Gill’s opinions (Tr. 28-31). The ALJ acted in accordance with 28 her responsibility to determine the credibility of medical evidence, and she gave specific 14 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 15 of 25 1 and legitimate reasons for discrediting Dr. Purewal’s opinion and germane reasons for 2 discrediting Nurse Practitioner Gregory’s opinions (Tr. 30, 544-546, 554-556, 626-638). 3 The ALJ is responsible for determining the credibility of medical evidence. Thomas v. 4 5 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) ("In summary, the ALJ acted in accordance 6 with his responsibility to determine the credibility of medical evidence, and he gave 7 specific, legitimate reasons for discrediting particular opinions.") (citation omitted). 8 Thus, while Plaintiff may disagree with the ALJ’s conclusion and her weighing of 9 10 the evidence (Pl.’s Br. at 17-23), that is not a sufficient reason to overturn the ALJ’s 11 decision. Even when evidence reasonably supports either confirming or reversing the 12 ALJ’s decision, the Court may not substitute its judgment for that of the ALJ. Batson v. 13 14 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). The Court must 15 defer to the Commissioner’s decision even if evidence exists to support more than one 16 rational interpretation. Id., at 1193. Furthermore, and contrary to Plaintiff’s assertions 17 18 (Pl.’s Br. at 20), the ALJ was not required to give controlling weight or great weight to 19 any of the opinions in the record. Although a treating physician’s opinion is generally 20 afforded the greatest weight in disability cases, even the treating physician’s opinion is 21 not binding on an ALJ with respect to the existence of an impairment or the ultimate 22 23 determination of disability. Id. at 1195. The ALJ may disregard even a treating 24 physician’s opinion whether or not that opinion is contradicted. Id. at 1195. 25 Moreover, Plaintiff’s argument ignores that the ALJ found that Dr. 26 27 Purewal’s treatment notes did not support her opinion and that Nurse Practitioner 28 Gregory’s opinions were not supported by her treatment notes (Tr. 30; Pl.’s Br. at 15 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 16 of 25 1 22-23). The ALJ also did not rubber stamp the nonexamining State agency 2 medical consultants’ opinions or rely on their opinions alone. Importantly, in 3 determining Plaintiff’s residual functional capacity, the ALJ stated that: 4 5 In determining the claimant's residual functional capacity no single assessment has been completely adopted as the residual functional capacity 6 determined herein. Instead, the undersigned has adopted those specific restrictions on a function-by-function basis that are best supported by the 7 objective evidence as a whole while considering the claimant's subjective 8 limitations. 9 (Tr. 28). Also, in determining Plaintiff’s residual functional capacity, the ALJ considered 10 11 not only the opinion evidence (Tr. 32), but also the objective evidence as a whole (Tr. 12 28), the combined effect of Plaintiff’s severe impairments (Tr. 32), the longitudinal 13 treatment record (Tr. 29), and Dr. Kunsman’s examination findings (Tr. 31). This the 14 15 type of evidence an ALJ considers in assessing and may base the residual functional 16 capacity on and therefore constituted substance evidence in support of the ALJ’s residual 17 functional capacity finding. See SSR 96-8p, available at 1996 WL 374184, *5; see also 18 19 Stiffey v. Colvin, No. 15-1670, 2017 WL 1287973, *7, *12-14, (United States District 20 Court, W.D. Pennsylvania, Mar. 17, 2017) (slip copy) (finding no error in ALJ affording 21 no weight to treating physician opinion and giving significant weight, in part, to the state 22 agency non-examining medical consultant opinion where the ALJ explained that the 23 24 treatment records and treatment history did not support the treating physician’s opinion 25 and where "Importantly, the ALJ here did not'rubberstamp’ any of the state agency 26 consultant’s opinions.... and although he gave their opinions'significant weight’ R. 38, 27 28 the ALJ indicated that additional limitations were supported and accommodated those 16 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 17 of 25 1 limitations in his ultimate RFC. R. 38.") (citation omitted). 2 Additionally, and contrary to Plaintiff’s assertions, Plaintiff has not demonstrated 3 reversible harmful error based on her challenge to the significant weight the ALJ gave to 4 5 the opinions of consultative examiners Dr. Kunsman (Tr. 30-31, 501; Tr. 496-502) and 6 Dr. Gill (Tr. 28-29, 510-511; Tr. 503-512), because they did not review any of Plaintiff’s 7 medical records in rendering their opinions (Pl.’s Br. at 22-23). As has been recognized 8 by another district court, in rejecting the argument that an ALJ committed reversible error 9 10 in relying upon a consultative examiner’s report that did not review a claimant’s records, 11 and that the ALJ did not err in the ALJ’s decision to afford the consultative examiner’s 12 opinion great weight: 13 14 The regulations do provide regarding consultative examination, that "[w]e will also give the examiner any necessary background information about 15 your condition." 20 C.F.R. § 404.1517. The regulations do not, however 16 prohibit the ALJ from relying on state agency opinions issued prior to subsequently generated medical records as "there is always some time lapse 17 between the consultant’s report and the ALJ hearing and decision. Only 18 where additional medical evidence is received that in the opinion of the [ALJ]... may change the State agency medical consultant’s finding... is an 19 update to the report required." Chandler, 667 F.3d at 361 (citing SSR 96-6 (July 2, 1996) (emphasis in original)). 20 21 Stiffey v. Colvin, No. 15-1670, 2017 WL 1287973, *13, *14 (United States District 22 Court, W.D. Pennsylvania, Mar. 17, 2017) (slip copy). 23 24 Also, the written report accompanying consultative examiner Dr. Kunsman’s 25 opinion (Tr. 496-502) reveals that Dr. Kunsman considered Plaintiff’s chief complaint, 26 history of present illness, previous medical history, previous surgical history, medication, 27 28 activities of daily living, review of systems (Tr. 496-498), and, as the ALJ noted, 17 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 18 of 25 1 "performed a through physical examination" of Plaintiff (Tr. 31, 498-500). The written 2 report accompanying consultative examiner Dr. Gill’s opinion (Tr. 503-512) reveals that 3 he considered Plaintiff’s identifying characteristics, history of mental disorders, medical 4 5 history (Tr. 503-504), current level of functioning (Tr. 506), and also conducted an 6 extensive mental status exam (Tr. 506-508). See Stiffey v. Colvin, No. 15-1670, 2017 7 WL 1287973, *13, *14 (United States District Court, W.D. Pennsylvania, Mar. 17, 2017) 8 (slip copy) (In finding no error in the ALJ’s decision to afford little weight to a treating 9 10 physician’s opinion and to afford a consultative examiner doctor’s opinion great weight, 11 even though the consultative examiner doctor did not base his opinion on the review of 12 the claimant’s records, the district noted in part that "[t]he written report accompanying 13 14 [the consultative examiner doctor’s] opinion reveals that he both referenced and 15 considered her past back and thyroid surgeries, sciatica, chronic low back pain, COPD, 16 medications, and that he also performed his own thorough examination of her. R. 522.") 17 18 (insertion in brackets added). 19 Therefore, and contrary to Plaintiff’s assertions (Pl.’s Br. at 22-23), 20 Plaintiff has not demonstrated any reversible harmful error in the ALJ’s decision 21 based on the ALJ’s reliance on the opinions of the nonexamining State agency 22 23 medical consultants and the consultative examiners. 24///25///26 27///28///18 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 19 of 25 1 3. Plaintiff Has Not Demonstrated That The ALJ Erred In The Development Of The Record Based On Plaintiff’s Untimely and Incomplete Subpoena 2 Request For Counselor Froelicher’s Records. 3 4 Plaintiff argues that the ALJ erred by failing to developing the record by 5 not subpoenaing the counseling records of treating counselor Kari Froelicher, 6 M.A., L.P.C. (licenses professional counselor), and that this case should therefore 7 be remanded (Pl.’s Br. at 23-25; Tr. 282-283). However, Plaintiff has not 8 9 demonstrated ALJ error or prejudicial harmful error in this regard and therefore 10 has not demonstrated that a remand is warranted in her case. Plaintiff’s argument 11 in this regard fails because there is no evidence that Plaintiff complied with the 12 13 regulatory requirements for subpoenaing Counselor Froelicher’s documents (Tr. 14 282-283). The regulations at the time of the May 11, 2015 hearing (Tr. 20, 47) 15 required that: 16 17 Parties to a hearing who wish to subpoena documents or witnesses must file a written request for the issuance of a subpoena with the administrative law 18 judge or at one of our offices at least 5 days before the hearing date. The 19 written request must give the names of the witnesses or documents to be produced; describe the address or location of the witnesses or documents 20 with sufficient detail to find them; state the important facts that the witness or document is expected to prove; and indicate why these facts could not be 21 proven without issuing a subpoena. 22 20 C.F.R. § 404.950(d)(2). Plaintiff’s written May 8, 2015 request to subpoena 23 24 Counselor Froelicher’s records was both untimely and incomplete (Tr. 282-283). 25 Plaintiff’s written May 8, 2015 request was not filed at least 5 days before the May 11, 26 2015 hearing, and it also did not "[s]tate the important facts that the witness or document 27 28 is expected to prove; and indicate why these facts could not be proven without issuing a 19 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 20 of 25 1 subpoena" as required by 20 C.F.R. § 404.950(d)(2). (Tr. 282-283). Therefore, Plaintiff 2 has not demonstrated that there was a "dereliction of responsibility" by the ALJ, that the 3 ALJ was "unfair" to Plaintiff or "adds insult to injury" as she asserts (Pl.’s Br. at 25) or 4 5 the ALJ erred based on Plainitff’s subpoena request for Counselor Froelicher’s records 6 (Pl.’s Br. at 23-25). See Diggs v. Astrue, No. Civil No. 10–2537 (RBK), 2011 WL 7 2447509, *21 (United States District Court, D. New Jersey, June 14, 2011) (not reported 8 in F.Supp.2d) ("Plaintiff’s argument that'[her] right to question medical experts and 9 10 reports on record were violated by the administrative law judge’ fails because there is no 11 evidence that Plaintiff complied with the statutory requirements for subpoenaing a 12 document or expert prior to the hearing on April 1, 2009. 20 C.F.R. § 404.950(d)(2) 13 14 provides in relevant part,'[p]arties to a hearing who wish to subpoena documents or 15 witnesses must file a written request for the issuance of a subpoena with the 16 administrative law judge... at least 5 days before the hearing date.’ There is no evidence 17 18 that Plaintiff subpoenaed any medical experts or reports five days prior to the hearing on 19 April 1, 2009. Accordingly, Plaintiff’s argument that the ALJ denied her the opportunity 20 to question medical experts at trial is meritless. See Richardson, 402 U.S. at 404 (finding 21 that plaintiff waived cross-examination by failing to subpoena reporting physician)), aff’d 22 23 by, 454 Fed.Appx. 80 (3rd Cir. Dec. 7, 2011) (unpublished). 24 Plaintiff did not follow the requirements in the regulations for requesting that 25 Counselor Froelicher’s records be subpoenaed (Tr. 282-283). 20 C.F.R. § 404.950(d)(2). 26 27 She should not be permitted to complain now. When a party "has both invited the error, 28 and relinquished a known right, then the error is waived and therefore unreviewable." 20 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 21 of 25 1 US v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc). "The invited error doctrine 2 holds that'[O]ne may not complain on review of errors below for which he is 3 responsible[.]’" Sovak v. Chugai Pharmaceutical Co., 280 F.3d 1266, 1270 (9th Cir. 4 5 2002) [unrelated portion amended by 289 F.3d 615 (9th Cir. 2002)], quoting Deland v. 6 Old Republic Life Ins. Co., 758 F.2d 1331, 1336-1337 (9th Cir. 1985). See also Johnson 7 v. INS, 971 F.2d 340, 343-344 (9th Cir. 1992) (applying invited error doctrine in context 8 of review of administrative decision). 9 10 Moreover, even if the Court were to find error as Plaintiff alleges (Pl.’s Br. 11 at 23-25), Plaintiff still has not demonstrated harmful prejudicial error that is 12 necessary to reverse the ALJ’s decision in this case. Plaintiff merely cites to 13 14 general case law propositions about the duty to develop the record (Pl.’s Br. at 23, 15 24) but does not present any specific argument that these cases therefore 16 "required" the ALJ to develop the record by subpoenaing the records at issue (Pl.’s 17 18 Br. at 24). Given this lack of specificity by Plaintiff, the Court should deem 19 Plaintiff’s argument waived. See Carmickle v. Comm’r of the Soc. Sec. Admin., 20 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). The ALJ does not have a duty to develop 21 the record in a manner that a claimant argues for in order to establish a claimant’s 22 23 case for her. See Mayes v. Massanari, 276 F.3d 453, 459-460 (9th Cir. 2001). 24 While the Ninth Circuit has recognized the ALJ’s special duty to develop the 25 record fully and fairly and to ensure that the claimants’ interests are considered, 26 27 even when the claimant is represented by counsel, it has observed that a claimant 28 should not be allowed to use this special duty to "improperly shift her own burden 21 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 22 of 25 1 to the ALJ. It was [her] duty to prove that she was disabled." See Id. at 459 2 (citing 42 U.S.C. § 423(d)(5); insertion in brackets added). 3 An ALJ’s duty to develop the record further is triggered only when there is 4 5 ambiguous evidence or when the record is inadequate to allow for proper 6 evaluation of the evidence. See Mayes v. Massanari, 276 F.3d 453, 459-460 (9th 7 Cir. 2001). The ALJ necessarily found that the evidence was adequate and 8 unambiguous to make a determination that in this case "[a]fter careful 9 10 consideration of the entire record" (Tr. 22). 11 Therefore, the ALJ did not have a duty to develop the record further. 12 Plaintiff, however, alleges that she has established prejudiced by the ALJ not 13 14 developing the record further because the ALJ rejected Counselor Froelicher’s opinion, in 15 part, because she refused to release her treatment records, so there was limited evidence 16 to support her opinion (Pl.’s Br. at 25; Tr. 30, 745-746). However, contrary to Plaintiff’s 17 18 assertions (Pl.’s Br. at 25), Plaintiff has not established prejudice on this basis because in 19 determining the weight to give opinions from "other sources" who are "non-medical 20 sources" (such as counselors), the ALJ may consider the degree to which the source 21 presents relevant evidence to support an opinion. See SSR 06-03p, available at 2006 WL 22 23 2329939, *2, *4-5. Furthermore, regardless of whether Counselor Froelicher’s records 24 were subpoenaed, Plaintiff has also not established any harmful prejudicial error in her 25 case because the ALJ noted that "Dr. Purewal and Ms. Gregory completed the same form 26 27 as Ms. Froelicher, but opined that the claimant was more severely limited in all areas of 28 functioning", and found that they were entitled to little weight (Tr. 30, italicized emphasis 22 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 23 of 25 1 added) and therefore they did not support a finding of disability in Plaintiff’s case (Tr. 33, 2 Finding 11). Thus, even if the ALJ erred as Plaintiff has alleged (Pl.’s Br. at 25), she has 3 not established reversible prejudicial harmful error because any error by the ALJ with 4 5 respect to Counselor Froelicher’s opinion on account of Plaintiff’s subpoena request for 6 her records was inconsequential to the ultimate nondisability determination in Plaintiff’s 7 case. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) ("Although we have 8 expressed different formulations of the harmless error rule depending on the facts of the 9 10 case and the error at issue, we have adhered to the general principle that an ALJ's error is 11 harmless where it is'inconsequential to the ultimate nondisability determination.’... 12. In other words, in each case we look at the record as a whole to determine whether the 13 14 error alters the outcome of the case.") (citations omitted). 15 Lastly, Defendant notes that Plaintiff requests that the Court credit as true Dr. 16 Purewal’s opinion and Nurse Practitioner Gregory’s opinions and remand this case for a 17 18 finding of disability and payment of benefits (Pl.’s Br. at 20, 21). Ninth Circuit case law 19 allows courts in some circumstances to credit evidence as "true" and award benefits 20 based on that evidence if it finds that the agency did not properly evaluate that evidence 21 in the first instance. However, as a matter of record, the Commissioner disagrees with 22 23 the credit-as-true rule. See Vasquez v. Astrue, 572 F.3d 586, 601 (9th Cir. 2009) 24 (amended opinion) (O’Scannlain, J., dissenting). But, regardless of its validity, the Ninth 25 Circuit has clarified that the credit-as-true rule only justifies an award of benefits in 26 27 narrow circumstances. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-28 1102 (9th Cir. 2014). 23 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 24 of 25 1 In this case, and contrary to Plaintiff’s request (Pl.’s Br. at 20, 21), application of 2 the credit as true rule and a remand for a finding of disability and payment of benefits is 3 not warranted because she has not demonstrated that the ALJ erred or harmfully erred in 4 5 the ALJ’s consideration of this evidence as discussed herein and she has also not met her 6 burden of establishing disability. Furthermore, because Plaintiff has not demonstrated 7 error or any harmful error, a remand for additional proceedings as she requests in the 8 alternative (Pl.’s Br. at 21, 26), is also not warranted in this case. 9 10 CONCLUSION 11 The Commissioner respectfully submits that her decision be affirmed. 12 DATED this 10th day of August 2017. 13 14 Respectfully submitted, 15 ELIZABETH A. STRANGE 16 Acting United States Attorney District of Arizona 17 18 s/Daphne Banay DAPHNE BANAY 19 Special Assistant United States Attorney 20 Of Counsel for the Defendant: 21 MATHEW W. PILE 22 Acting Regional Chief Counsel, Social Security Administration 23 Office of the General Counsel, Region X 701 Fifth Avenue, Suite 2900 M/S 221A 24 Seattle, WA 98104-7075 25 26 27 28 24 Case 3:17-cv-08027-MHB Document 15 Filed 08/10/17 Page 25 of 25 1 2 CERTIFICATE OF SERVICE 3 I hereby certify that the foregoing Defendant's Brief was filed with the 4 Clerk of the Court on August 10, 2017, using the CM/ECF system, which will 5 6 send notification of such filing to the following: Howard D. Olinsky. 7 8 s/Barbara Eadie 9 BARBARA EADIE Paralegal Specialist 10 Office of the General Counsel 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25

ORDER: The Commissioner's decision is VACATED and this matter is REMANDED to the Commissioner for further administrative proceedings as set forth in this Order. IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment accordingly. Signed by Magistrate Judge Michelle H Burns on 3/29/2018.

1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Melissa Dionne Labrusciano,) CIV 17-08027-PCT-MHB) 10 Plaintiff,) ORDER) 11 vs.)) 12 Commissioner of Social Security) Administration,) 13) Defendant.) 14) 15 Pending before the Court is Plaintiff Melissa Dionne Labrusciano's appeal from the 16 Social Security Administration's final decision to deny her claim for disability insurance 17 benefits. After reviewing the administrative record and the arguments of the parties, the 18 Court now issues the following ruling. 19 I. PROCEDURAL HISTORY 20 On July 12, 2013, Plaintiff filed an application for disability insurance benefits 21 alleging disability beginning April 19, 2013 – later amended to January 1, 2014. Her 22 application was denied initially and on reconsideration. Thereafter, Plaintiff requested a 23 hearing before an administrative law judge. A video hearing was held on May 11, 2015, and 24 the ALJ issued a decision on June 26, 2015, finding that Plaintiff was not disabled. The 25 Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final 26 decision of the Commissioner. Plaintiff then sought judicial review of the ALJ's decision 27 pursuant to 42 U.S.C. § 405(g). 28 \\\ 1 1 II. STANDARD OF REVIEW 2 The district court reviews only those issues raised by the party challenging the ALJ's 3 decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A court may set aside 4 the Commissioner's disability determination only if the determination is not supported by 5 substantial evidence or is based on legal error. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 6 2007). Substantial evidence is more than a scintilla, less than a preponderance, and relevant 7 evidence that a reasonable person might accept as adequate to support a conclusion 8 considering the record as a whole. See id. In determining whether substantial evidence 9 supports a decision, a court must consider the record as a whole and may not affirm simply 10 by isolating a "specific quantum of supporting evidence." Id. As a general rule, "[w]here the 11 evidence is susceptible to more than one rational interpretation, one of which supports the 12 ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 13 954 (9th Cir. 2002) (citations omitted). 14 Harmless error principles apply in this context. See Molina v. Astrue, 674 F.3d 1104, 15 1115 (9th Cir. 2012). An error is harmless if there remains substantial evidence supporting 16 the ALJ's decision and the error does not affect the ultimate nondisability determination. See 17 id. The claimant usually bears the burden of showing that an error is harmful. See id. at 1111. 18 The ALJ is responsible for resolving conflicts in medical testimony, determining 19 credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 20 1995). In reviewing the ALJ's reasoning, the court is "not deprived of [its] faculties for 21 drawing ... inferences from the ALJ's opinion." Magallanes v. Bowen, 881 F.2d 747, 755 (9th 22 Cir. 1989). 23 III. THE ALJ'S FINDINGS 24 In order to be eligible for disability or social security benefits, a claimant must 25 demonstrate an "inability to engage in any substantial gainful activity by reason of any 26 medically determinable physical or mental impairment which can be expected to result in 27 death or which has lasted or can be expected to last for a continuous period of not less than 28 -2- 1 1 12 months." 42 U.S.C. § 423(d)(1)(A). An ALJ determines a claimant's eligibility for 2 benefits by following a five-step sequential evaluation: 3 (1) determine whether the applicant is engaged in "substantial gainful activity"; 4 (2) determine whether the applicant has a medically severe impairment or combination of impairments; 5 (3) determine whether the applicant's impairment equals one of a number of listed 6 impairments that the Commissioner acknowledges as so severe as to preclude the applicant from engaging in substantial gainful activity; 7 (4) if the applicant's impairment does not equal one of the listed impairments, 8 determine whether the applicant is capable of performing his or her past relevant work; 9 (5) if the applicant is not capable of performing his or her past relevant work, 10 determine whether the applicant is able to perform other work in the national economy in view of his age, education, and work experience. 11 See Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (citing 20 C.F.R. §§ 404.1520, 12 416.920). At the fifth stage, the burden of proof shifts to the Commissioner to show that the 13 claimant can perform other substantial gainful work. See Penny v. Sullivan, 2 F.3d 953, 956 14 (9th Cir. 1993). 15 At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful 16 activity since January 1, 2014 – her alleged onset date. (Tr. at 22.) At step two, she found that 17 Plaintiff had the following severe impairments: major depressive disorder, anxiety disorder, 18 posttraumatic stress disorder and lumbar and pelvic degenerative joint disease. (Tr. at 22-23.) 19 At step three, the ALJ stated that Plaintiff did not have an impairment or combination of 20 impairments that met or medically equaled the severity of one of the listed impairments in 21 20 CFR Part 404, Subpart P, Appendix 1 of the Commissioner's regulations. (Tr. at 23-25.) 22 After consideration of the entire record, the ALJ found that Plaintiff retained the residual 23 functional capacity "to perform medium work as defined in 20 CFR 404.1567 with the 24 following limitations. She needs work with things not data or people and needs work that is 25 limited to tasks that can be learned by demonstration within 30 days. The claimant can work 26 in the vicinity of others, but may have only minimal interaction with coworkers and 27 28 -3- 1 1 supervisors, and no in-person interaction with the public."1 (Tr. at 25-32.) The ALJ found 2 that Plaintiff is unable to perform past relevant work (Tr. at 32), but that considering "the 3 claimant's age, education, work experience, and residual functional capacity, there are jobs 4 that exist in significant numbers in the national economy that the claimant can perform (20 5 CFR 404.1569 and 404.1569(a))" (Tr. at 32-33). Thus, the ALJ concluded that Plaintiff has 6 not been under a disability from the alleged onset date through the date of her decision. (Tr. 7 at 33.) 8 IV. DISCUSSION 9 In her brief, Plaintiff contends that the ALJ erred by: (1) failing to properly weigh 10 medical source opinion evidence; and (2) failing to properly develop the record. Plaintiff 11 requests that the Court remand for further administrative proceedings. 12 The Court will first address the medical source opinion evidence. 13 Plaintiff contends that the ALJ erred by improperly weighing the medical opinion 14 evidence. Plaintiff specifically states that the ALJ failed to properly weigh the opinions of 15 treating psychiatrist, Satinder Purewal, M.D., and psychiatric mental health nurse practitioner 16 Stacey Gregory, PMHNP-BC. Plaintiff additionally argues that the ALJ erred in relying on 17 the opinions of consultative examiners Glenn Kunsman, D.O., and Stephen Gill, Ph.D., as 18 well as, state agency medical consultants Edith King, Ph.D., Thomas VanHoose, Ph.D., 19 Nancy Armstrong, M.D., and Herbert Meites, M.D. 20 The Commissioner is responsible for determining whether a claimant meets the 21 statutory definition of disability, and need not credit a physician's conclusion that the 22 claimant is "disabled" or "unable to work." 20 C.F.R. § 404.1527(d)(1). But, the 23 Commissioner generally must defer to a physician's medical opinion, such as statements 24 concerning the nature or severity of the claimant's impairments, what the claimant can do, 25 and the claimant's physical or mental restrictions. § 404.1527(a)(2), (c). 26 1 27 "Residual functional capacity" (or "RFC") is defined as the most a claimant can do after considering the effects of physical and/or mental limitations that affect the ability to 28 perform work-related tasks. -4- 1 1 In determining how much deference to give a physician's medical opinion, the Ninth 2 Circuit distinguishes between the opinions of treating physicians, examining physicians, and 3 non-examining physicians. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, 4 an ALJ should give the greatest weight to a treating physician's opinion and more weight to 5 the opinion of an examining physician than a non-examining physician. See Andrews, 53 6 F.3d at 1040-41; see also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered 7 when evaluating opinion evidence, including length of examining or treating relationship, 8 frequency of examination, consistency with the record, and support from objective evidence). 9 If a treating or examining physician's medical opinion is not contradicted by another 10 doctor, the opinion can be rejected only for clear and convincing reasons. See Lester, 81 F.3d 11 at 830 (citation omitted). Under this standard, the ALJ may reject a treating or examining 12 physician's opinion if it is "conclusory, brief, and unsupported by the record as a whole[] or 13 by objective medical findings," Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 14 2004), or if there are significant discrepancies between the physician's opinion and her 15 clinical records, see Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 16 When a treating or examining physician's opinion is contradicted by another doctor, 17 it can be rejected "for specific and legitimate reasons that are supported by substantial 18 evidence in the record." Lester, 81 F.3d at 830-31 (citation omitted). To satisfy this 19 requirement, the ALJ must set out "a detailed and thorough summary of the facts and 20 conflicting clinical evidence, stating his interpretation thereof, and making findings." Cotton 21 v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). Under either standard, "[t]he ALJ must do 22 more than offer his conclusions. He must set forth his own interpretations and explain why 23 they, 'rather than the doctors', are correct." Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 24 1988). 25 Physician's assistants, nurse practitioners, chiropractors, and similar providers are 26 medical professionals, but they are not considered "acceptable medical sources," under the 27 Social Security regulations (the regulations were later amended – the amendments are not 28 applicable here). 20 C.F.R. § 404.1513(d)(1). Rather, these medical professionals are -5- 1 1 considered "other sources." Id. The distinction between "other sources" and "acceptable 2 medical sources" is significant because only "an acceptable medical source" may be 3 considered a "treating source." 20 C.F.R. §§ 404.1502. Thus, these "other sources" are not 4 entitled to the same deference as "acceptable medical sources." Molina, 674 F.3d at 1111. 5 The ALJ may discount testimony from "other sources" simply by giving "reasons germane 6 to each witness for doing so." Id. (citations and internal quotations omitted). 7 1. Satinder Purewal, M.D. 8 The opinion of Dr. Purewal was contradicted by other physicians, as well as, other 9 objective medical evidence of record. As such, the specific and legitimate standard applies. 10 In addition to a number treatment notes in the record, Dr. Purewal completed a mental 11 capacity assessment on March 20, 2014. Dr. Purewal opined that Plaintiff had extreme 12 limitations in her ability to understand and remember detailed instructions; carry out detailed 13 instructions, maintain attention and concentration for extended periods; perform activities 14 within a schedule, maintain regular attendance, and be punctual within customary tolerances; 15 complete a normal workweek without interruptions from psychologically based symptoms; 16 perform at a consistent pace with a standard number and length of rest periods; accept 17 instructions and respond appropriately to criticism from supervisors; get along with 18 coworkers or peers without distracting them or exhibiting behavioral extremes; respond 19 appropriately to changes in the work setting; travel in unfamiliar places or use public 20 transportation; set realistic goals or make plans independently of others. (Tr. at 544-546.) 21 The ALJ gave Dr. Purewal's opinion little weight. 22 First, the ALJ based her opinion on Dr. Purewal's "limited treating relationship with 23 the claimant." (Tr. at 30.) The duration of the treatment relationship and the frequency and 24 nature of patient contact is relevant in weighing medical opinion evidence. See Benton v. 25 Barnhart, 331 F.3d 1030, 1038-39 (9th Cir. 2003). The parties disagree at to whether Dr. 26 Purewal met with Plaintiff nine or 10 times. Either way, the Court finds that the duration of 27 the treating relationship, consisting of nine to 10 visits from 2013 to 2014, is a sufficient 28 -6- 1 1 amount of time to not be considered "limited." The Court fails to find this a legitimate reason 2 for rejecting Dr. Purewal's opinion. 3 Second, the ALJ found that Dr. Purewal's opinion lacked explanations for her 4 conclusions. (Tr. at 30.) The ALJ bases this finding on Dr. Purewal's use of check-box 5 reports. An ALJ may properly reject a treating physician's opinion that is conclusory and 6 unsupported by medical findings. See Batson, 359 F.3d at 1195 (holding that the ALJ did not 7 err in giving minimal evidentiary weight to the opinion of the claimant's treating physician 8 when the opinion was in the form of a checklist, did not have supportive objective evidence, 9 was contradicted by other statements and assessments of the claimant's medical condition, 10 and was based on the claimant's subjective descriptions of pain). Further, an ALJ can reject 11 check-off reports that do not contain any explanation for the bases of their conclusions. See 12 Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996). However, opinions in check-box form can 13 be entitled to substantial weight when adequately supported, which could include experience 14 with the patient and numerous medical records that have notes in support of the opinion. See 15 Garrison, 759 F.3d at 1013-14. As indicated previously, Dr. Purewal met with Plaintiff nine 16 or 10 times, providing detailed notes and explanation on examination as set forth in the 17 doctor's numerous progress records. Thus, the ALJ should not have discredited Dr. Purewal's 18 opinion based on the lack explanation on the check-box form. The Court fails to find this a 19 legitimate reason. 20 Lastly, the ALJ found conflicts between Dr. Purewal's opinion and her own treatment 21 notes. (Tr. at 30.) Specifically, the ALJ stated that Dr. Purewal's treatment notes from the 22 same day she completed the mental capacity assessment indicated that Plaintiff was having 23 more good days than bad, and exhibiting appropriate, cooperative, and relaxed behavior, with 24 logical and appropriate thought process and intact judgment and insight. The ALJ found that 25 in the several months prior to completing the assessment, Dr. Purewal observed Plaintiff to 26 be depressed, but with intact insight and the ability to make sensible decisions. An ALJ may 27 only reject a treating physician's opinion "by setting out a detailed and thorough summary 28 of the facts and conflicting clinical evidence, stating his interpretation thereof, and making -7- 1 1 findings." Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998). "The ALJ must do more than 2 offer his conclusions. He must set forth his own interpretations and explain why they, 'rather 3 than the doctors', are correct." Id. (citing Embrey, 849 F.2d at 421-22). The Court finds that 4 the ALJ properly supported her findings that Dr. Purewal's opinion was in conflict with 5 certain portions of her own treatments notes. The Court finds this a legitimate reason. 6 In sum, however, in consideration all of the factors the ALJ considered in giving Dr. 7 Purewal's opinion little weight, the Court finds that the ALJ failed to provide specific and 8 legitimate reasons supported by substantial evidence in the record for her finding. 9 2. Stacey Gregory, PMHNP-BC 10 Nurse practitioner Gregory opined that Plaintiff had extreme limitations in her ability 11 to understand and remember detailed instructions; carry out detailed instructions; maintain 12 attention and concentration for extended periods; travel in unfamiliar places or use public 13 transportation; and set realistic goals or make plans independently of others. (Tr. at 626-28.) 14 She also opined that Plaintiff had marked limitations in her ability to remember locations and 15 work-like procedures; perform activities within a schedule, maintain regular attendance, and 16 be punctual within customary tolerances; sustain an ordinary routine without special 17 supervision; respond appropriately to changes in the work setting; and set realistic goals or 18 make plans independently of others. (Tr. at 626-28.) 19 The ALJ gave nurse practitioner Gregory's opinions little weight. (Tr. at 30.) Citing 20 to exhibits in the record confirming her findings, the ALJ found that nurse practitioner 21 Gregory's opinions appeared to be based on the subjective complaints of Plaintiff, as well 22 as reports by Plaintiff's husband. Additionally, the ALJ found conflicts between nurse 23 practitioner Gregory's opinions and her own treatment notes, which demonstrated 24 improvement over the treatment history, and a month prior to the date of the assessment 25 indicated that Plaintiff was cooperative and focused, with fair insight and good interaction 26 and attention. 27 As established previously and as relevant to the instant case, nurse practitioners are 28 categorized as "other sources" under the regulations. Nurse practitioners are therefore not -8- 1 1 entitled to the same deference as acceptable treating physicians under the regulations. See 2 Molina, 674 F.3d at 1111. Their opinions may be discounted "if the ALJ gives reasons 3 germane to each witness for doing so." Id. (internal quotation and citation omitted). The 4 Court finds that the reasons provided by the ALJ to discount nurse practitioner Gregory's 5 opinions are germane. Therefore, the Court finds no error. 6 3. Consultative Examiners and State Agency Medical Consultants 7 Plaintiff argues that the ALJ erred by improperly relying on the opinions of 8 consultative examiners Glenn Kunsman, D.O., and Stephen Gill, Ph.D., as well as, state 9 agency medical consultants Edith King, Ph.D., Thomas VanHoose, Ph.D., Nancy Armstrong, 10 M.D., and Herbert Meites, M.D. Plaintiff contends that the state agency medical consultants 11 did not review Plaintiff's entire medical record before rendering their opinions, and the 12 consultative examiners did not have any of Plaintiff's medical records to review before 13 rendering their opinions. 14 In response, Defendants concede that both the state agency medical consultants and 15 consultative examiners did not have the opportunity to review all of the medical records in 16 this case. However, Defendants assert that this was harmless error, stating that the ALJ had 17 the opportunity to review the entire record that was before her, which included not only Dr. 18 Purewal's and nurse practitioner Gregory's opinions, but also Dr. King's, Dr. VanHoose's, 19 Dr. Armstrong's, Dr. Meites', Dr. Kunsman's, and Dr. Gill's opinions. (Tr. at 28-31.) 20 "ALJ errors in social security cases are harmless if they are 'inconsequential to the 21 ultimate nondisability determination' and [] 'a reviewing court cannot consider [an] error 22 harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the 23 testimony, could have reached a different disability determination.'" Marsh v. Colvin, 792 24 F.3d 1170, 1173 (9th Cir. 2015) (quoting Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 25 1055-56). 26 The Court's review of the ALJ's opinion reveals that the ALJ gave "significant weight 27 to the opinion of Dr. Gill," stating, "[i]n arriving at the above residual functional capacity, 28 I considered and gave significant weight to the opinion of Dr. Gill, who performed the -9- 1 1 psychiatric evaluation on behalf of the state agency ... .This opinion was given significant 2 weight because Dr. Gill performed a thorough evaluation of the claimant and had access to 3 her medical record when he offered his opinion." 4 Further, regarding Drs. King and VanHoose, the ALJ stated, "I also considered the 5 opinions Edith King, PhD and Thomas VanHoose, PhD, who reviewed the claimant's 6 medical records on behalf of the state agency and offered opinions on her mental abilities and 7 limitations. ... These opinions were given significant weight because they are consistent with 8 the claimant's demonstrated moderate difficulties with activities of daily living, social 9 functioning, and concentration, persistence, and pace, and are supported by the claimant's 10 history of mental health treatment." 11 Lastly, as to Drs. Armstrong and Meites, the ALJ found, "I also considered the 12 opinions of Nancy Armstrong, MD and Herbert Meites, MD who reviewed the claimant's 13 medical records on behalf of the state agency and offered opinions on her physical abilities 14 and limitations. ... These opinions were given significant weight because the record does not 15 support a finding that the claimant's physical impairments are disabling." 16 Although it is the responsibility of the ALJ to determine Plaintiff's residual functional 17 capacity, the record establishes that the ALJ specifically relied on these doctors' opinions in 18 "arriving at the above residual functional capacity." The ALJ specifically noted that each of 19 these doctors reviewed or had access to Plaintiff's medical records on which to base their 20 opinions. The parties agree however, that the medical records each doctor reviewed were 21 incomplete. As Plaintiff notes and the record confirms, she has an extensive history of mental 22 health treatment. Plaintiff states that none of the doctors reviewed the records regarding 23 Plaintiff's treatment with nurse practitioner Gregory, Dr. Froelicher, and Dr. Kravetz. She 24 states that these records constitute "approximately half the Plaintiff's medical records from 25 the relevant period." 26 Under these circumstances, the Court cannot confidently conclude that the error on 27 this issue was harmless. The Court will remand this matter, and declines to address Plaintiff's 28 remaining arguments. - 10 - 1 1 V. CONCLUSION 2 "[R]emand for further proceedings is appropriate where there are outstanding issues 3 that must be resolved before a determination can be made, and it is not clear from the record 4 that the ALJ would be required to find claimant disabled if all the evidence were properly 5 evaluated." Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (citing Vasquez v. Astrue, 572 6 F.3d 586, 593 (9th Cir. 2009)). "[T]he proper course, except in rare circumstances, is remand 7 to the agency for additional investigation or explanation." INS v. Ventura, 537 U.S. 12, 16 8 (2002) (per curiam). The Ninth Circuit has held that when "additional proceedings can 9 remedy defects in the original administrative proceeding, a social security case should be 10 remanded." Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (remanding "to the 11 Secretary for proper consideration of step three equivalence"). Here, the record contains 12 evidentiary conflicts that make an award of benefits inappropriate and require further 13 evaluation of the evidence on remand. Thus, the Commissioner's decision will be vacated 14 and this matter will be remanded for further administrative proceedings. 15 Accordingly, 16 IT IS ORDERED that the Commissioner's decision is VACATED and this matter 17 is REMANDED to the Commissioner for further administrative proceedings as set forth in 18 this Order; 19 IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment 20 accordingly. 21 DATED this 29th day of March, 2018. 22 23 24 25 26 27 28 - 11 -

CLERK'S JUDGMENT - Pursuant to the Court's Order filed March 29, 2018, the decision of the Commissioner of Social Security is vacated, and this case is remanded to the Social Security Administration for further proceedings consistent with the Order.

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Melissa Dionne Labrusciano, NO. CV-17-08027-PCT-MHB 10 Plaintiff, JUDGMENT IN A CIVIL CASE 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Decision by Court. This action came for consideration before the Court. The 16 issues have been considered and a decision has been rendered. 17 IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed 18 March 29, 2018, the decision of the Commissioner of Social Security is vacated, and this 19 case is remanded to the Social Security Administration for further proceedings consistent 20 with the Order. 21 Brian D. Karth District Court Executive/Clerk of Court 22 23 March 29, 2018 s/ Rebecca Kobza 24 By Deputy Clerk 25 26 27 28

Text of Proposed Order

1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 DISTRICT OF ARIZONA 11 12 Melissa Dionne Labrusciano, 13 Civil No. 3:17-cv-08027-MHB 14 Plaintiff, 15 vs. (PROPOSED) ORDER 16 AWARDING ATTORNEY'S FEES 17 PURSUANT TO THE EQUAL Nancy A. Berryhill, Acting ACCESS TO JUSTICE ACT, 18 Commissioner of Social Security, 28 U.S.C. § 2412(D) 19 20 Defendant 21 (Proposed) Order Awarding Attorney's Fees 22 23 pursuant to the Equal Access to Justice Act, 24 28 U.S.C. § 2412(d) 25 Before the Court is the Motion of Plaintiff Melissa Dionne Labrusciano, for 26 27 award of attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 28 2412(d). Based on the pleadings as well as the position of the defendant Page 1 1 commissioner, if any, and recognizing the Plaintiff's waiver of direct payment and 2 assignment of EAJA to her counsel, 3 4 5 IT IS HEREBY ORDERED that attorney fees in the total amount of Seven 6 Thousand One Hundred Sixty-Eight Dollars and Twenty-Four Cents ($7,168.24) 7 8 pursuant to the Equal Access to Justice Act, 28 USC section 2412(d); and 9 10 IT IS HEREBY ORDERED that expenses in the amount of Seventeen 11 Dollars and Sixty-Seven Cents ($17.67) pursuant to the Equal Access to Justice 12 13 Act, 28 USC section 2412(d); and 14 15 IT IS HEREBY ORDERED that costs in the total amount of Four Hundred 16 17 Dollars ($400.00) pursuant to the Equal Access to Justice Act, 28 U.S.C. § 1920 18 are awarded to Plaintiff. 19 20 21 If the U.S. Department of the Treasury determines that Plaintiff's EAJA 22 fees are not subject to offset allowed under the Department of the Treasury's 23 Offset Program (TOPS), then the check for EAJA fees shall be made payable to 24 25 Plaintiff's attorney, Howard D. Olinsky. 26 27 Whether the check is made payable to Plaintiff or to Howard D. Olinsky, 28 Page 2 1 2 the check shall be mailed to Howard D. Olinsky at the following address: 3 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 7 DATED: 8 __________________________ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 3

Exhibit A All Professional Time

Exhibit A Ledger Labrusciano, Melissa Dionne Date  Subject Hours Timekeeper 1/4/2017 Files received, reviewed and processed from referral source for attorney review 0.6 Gifford, Kyrsten 1/4/2017 Correspondence to client re: Prospect Acknowledgement Letter 0.2 Gifford, Kyrsten 1/10/2017 Telephone call with Client re: Debt conference call, explained eaja 0.4 Gifford, Kyrsten 1/24/2017 Review decisions and evidence to determine whether to appeal case 1 Fecio, Michelle 1/31/2017 Telephone conf. w/clients husband re: ifp attempt, need auth, couldn't complete 0 Gifford, Kyrsten 2/2/2017 Telephone call w/clients husband re: client unable to speak 0 Smith, Michael P. 2/2/2017 Federal Court-Closeout Letter-No Contact 0.3 Callahan, Michelle 2/8/2017 Federal Court-Third Party Disclosure Auth. Form to client 0.4 Gifford, Kyrsten 2/8/2017 Received signed third party consent form 0.2 Gifford, Kyrsten 2/8/2017 Telephone call w/ clients husband re: IFP-/Paying filing fee 0.2 Smith, Michael P. 2/8/2017 FDC Prospect Packet prepared for client completion 0.6 Gifford, Kyrsten 2/8/2017 Federal court filing fee paid to initiate civil case 0 Smith, Michael P. 2/8/2017 Federal Court packet sent via Right Signature 0.2 Gifford, Kyrsten 2/8/2017 Federal court filing fee paid via Law Pay 0.2 Smith, Michael P. 2/8/2017 FDC Prospect Packet Returned via Right Signature, reviewed for completion 0.3 Gifford, Kyrsten 2/14/2017 Draft Complaint, Proposed Summons, Letter to Clerk, and Civil Cover Sheet 0.6 Olinsky, Howard D. 2/14/2017 Draft application for Pro Hac Vice admission 0 Olinsky, Howard D. 2/15/2017 Review notice of filing fee paid, note receipt 0.1 Olinsky, Howard D. 2/15/2017 Review summons as issued to Commissioner of SSA 0.1 Olinsky, Howard D. 2/16/2017 Review scheduling order, calender deadlines on task pad 0.2 Olinsky, Howard D. 2/16/2017 Review order directing service/terminate def. not served on time 0.1 Olinsky, Howard D. 2/17/2017 Federal Court -Accept Letter - New FDC Filing 0.3 Callahan, Michelle 3/1/2017 Review order granting pro hac vice admission 0 Olinsky, Howard D. 3/7/2017 Federal Court-Service of Process-prepare service packets USAO, OGC, AG 0 Callahan, Michelle 3/7/2017 Federal Court-Service of Process-prepare service packets USAO, OGC, AG 0.6 Callahan, Michelle 3/21/2017 Compile and file proof of service via CM / ECF 0.3 Callahan, Michelle 3/22/2017 Review notice of error, no action necessary 0 Olinsky, Howard D. 3/22/2017 Review service executed, confirm scheduling order calendared 0.2 Olinsky, Howard D. 4/20/2017 Review notice of appearance by Daphne Banay o/b/o Comm. of SSA 0.1 Olinsky, Howard D. 5/12/2017 Review answer to complaint 0.1 Olinsky, Howard D. 5/15/2017 Combine, strip PDF/A, OCR and live bookmark federal court transcript (789 pages) 0.8 Lockwood, Tamica 5/15/2017 Preliminary review of transcript - assign Attorney writer 0.5 Wicklund, Edward A. 5/16/2017 Review and execute magistrate consent form 0.1 Olinsky, Howard D. 5/16/2017 Email correspondence to OC re: Magistrate consent 0.1 Olinsky, Howard D. 5/17/2017 Correspondence to clerk re: Executed MCF sent via USPS 0.1 Lockwood, Tamica 5/26/2017 Review filed magistrate consent form 0.1 Olinsky, Howard D. 7/6/2017 Review certified administrative record and take notes 6.5 Tastrom, Katie 7/7/2017 Drafting procedural section, drafting facts 8.8 Tastrom, Katie 7/10/2017 Research issues and drafting argument 8.2 Tastrom, Katie 7/11/2017 Senior Attorney review draft brief, suggest edits 1.9 Wicklund, Edward A. 7/11/2017 Implement suggested edits, finalize and file brief (n/c for filing) 1.4 Tastrom, Katie 8/10/2017 Review defendant's brief (25 pages) 0.7 Wicklund, Edward A. 41.00  (Client = Melissa Dionne Labrusciano)    Date  Subject Hours Timekeeper 3/22/2018 Telephone conf. w/client Re: Status Update 0.1 Moira Deutch 3/22/2018 Correspondence to Client re: Fully Briefed Docs 0.3 Moira Deutch 3/30/2018 Review order granting remand 0.3 Olinsky, Howard D. 3/30/2018 Review clerks judgment to remand 0.1 Olinsky, Howard D. 4/6/2018 Telephone conf. w/client Re: Remand, couldn't speak at the time, will follow up 0 Moira Deutch 4/10/2018 Federal Court-Remand Referral back to Referral Source 0.3 Graser, Jonnah 4/10/2018 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 4/17/2018 Telephone conf. w/client Re: Explained remand to client 0.3 Moira Deutch 6/20/2018 EAJA Preparation 1.5 Graser, Jonnah 6/20/2018 Review Slips and Finalize EAJA Motion 0.5 Olinsky, Howard D. 6/20/2018 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Graser, Jonnah 41.00  (Client = Melissa Dionne Labrusciano)   

Exhibit B Attorney Time

Exhibit B Ledger Labrusciano, Melissa Dionne Date  Subject Hours Timekeeper 1/24/2017 Review decisions and evidence to determine whether to appeal case 1 Fecio, Michelle 2/14/2017 Draft Complaint, Proposed Summons, Letter to Clerk, and Civil Cover Sheet 0.6 Olinsky, Howard D. 2/14/2017 Draft application for Pro Hac Vice admission 0 Olinsky, Howard D. 2/15/2017 Review notice of filing fee paid, note receipt 0.1 Olinsky, Howard D. 2/15/2017 Review summons as issued to Commissioner of SSA 0.1 Olinsky, Howard D. 2/16/2017 Review scheduling order, calender deadlines on task pad 0.2 Olinsky, Howard D. 2/16/2017 Review order directing service/terminate def. not served on time 0.1 Olinsky, Howard D. 3/1/2017 Review order granting pro hac vice admission 0 Olinsky, Howard D. 3/22/2017 Review notice of error, no action necessary 0 Olinsky, Howard D. 3/22/2017 Review service executed, confirm scheduling order calendared 0.2 Olinsky, Howard D. 4/20/2017 Review notice of appearance by Daphne Banay o/b/o Comm. of SSA 0.1 Olinsky, Howard D. 5/12/2017 Review answer to complaint 0.1 Olinsky, Howard D. 5/15/2017 Preliminary review of transcript - assign Attorney writer 0.5 Wicklund, Edward A. 5/16/2017 Review and execute magistrate consent form 0.1 Olinsky, Howard D. 5/16/2017 Email correspondence to OC re: Magistrate consent 0.1 Olinsky, Howard D. 5/26/2017 Review filed magistrate consent form 0.1 Olinsky, Howard D. 7/6/2017 Review certified administrative record and take notes 6.5 Tastrom, Katie 7/7/2017 Drafting procedural section, drafting facts 8.8 Tastrom, Katie 7/10/2017 Research issues and drafting argument 8.2 Tastrom, Katie 7/11/2017 Senior Attorney review draft brief, suggest edits 1.9 Wicklund, Edward A. 7/11/2017 Implement suggested edits, finalize and file brief (n/c for filing) 1.4 Tastrom, Katie 8/10/2017 Review defendant's brief (25 pages) 0.7 Wicklund, Edward A. 3/30/2018 Review order granting remand 0.3 Olinsky, Howard D. 3/30/2018 Review clerks judgment to remand 0.1 Olinsky, Howard D. 6/20/2018 Review Slips and Finalize EAJA Motion 0.5 Olinsky, Howard D. 31.70  (Client = Melissa Dionne Labrusciano) and ((Timekeeper = Fecio, Michelle) or (Timekeeper = Olinsky, Howard D.) or (Timekeeper = Tastrom, Katie) or (Time...   

Exhibit C Paralegal Time

Exhibit C Ledger Labrusciano, Melissa Dionne Date  Subject Hours Timekeeper 1/4/2017 Files received, reviewed and processed from referral source for attorney review 0.6 Gifford, Kyrsten 1/4/2017 Correspondence to client re: Prospect Acknowledgement Letter 0.2 Gifford, Kyrsten 1/10/2017 Telephone call with Client re: Debt conference call, explained eaja 0.4 Gifford, Kyrsten 1/31/2017 Telephone conf. w/clients husband re: ifp attempt, need auth, couldn't complete 0 Gifford, Kyrsten 2/2/2017 Telephone call w/clients husband re: client unable to speak 0 Smith, Michael P. 2/2/2017 Federal Court-Closeout Letter-No Contact 0.3 Callahan, Michelle 2/8/2017 Federal Court-Third Party Disclosure Auth. Form to client 0.4 Gifford, Kyrsten 2/8/2017 Received signed third party consent form 0.2 Gifford, Kyrsten 2/8/2017 Telephone call w/ clients husband re: IFP-/Paying filing fee 0.2 Smith, Michael P. 2/8/2017 FDC Prospect Packet prepared for client completion 0.6 Gifford, Kyrsten 2/8/2017 Federal court filing fee paid to initiate civil case 0 Smith, Michael P. 2/8/2017 Federal Court packet sent via Right Signature 0.2 Gifford, Kyrsten 2/8/2017 Federal court filing fee paid via Law Pay 0.2 Smith, Michael P. 2/8/2017 FDC Prospect Packet Returned via Right Signature, reviewed for completion 0.3 Gifford, Kyrsten 2/17/2017 Federal Court -Accept Letter - New FDC Filing 0.3 Callahan, Michelle 3/7/2017 Federal Court-Service of Process-prepare service packets USAO, OGC, AG 0 Callahan, Michelle 3/7/2017 Federal Court-Service of Process-prepare service packets USAO, OGC, AG 0.6 Callahan, Michelle 3/21/2017 Compile and file proof of service via CM / ECF 0.3 Callahan, Michelle 5/15/2017 Combine, strip PDF/A, OCR and live bookmark federal court transcript (789 pages) 0.8 Lockwood, Tamica 5/17/2017 Correspondence to clerk re: Executed MCF sent via USPS 0.1 Lockwood, Tamica 3/22/2018 Telephone conf. w/client Re: Status Update 0.1 Moira Deutch 3/22/2018 Correspondence to Client re: Fully Briefed Docs 0.3 Moira Deutch 4/6/2018 Telephone conf. w/client Re: Remand, couldn't speak at the time, will follow up 0 Moira Deutch 4/10/2018 Federal Court-Remand Referral back to Referral Source 0.3 Graser, Jonnah 4/10/2018 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 4/17/2018 Telephone conf. w/client Re: Explained remand to client 0.3 Moira Deutch 6/20/2018 EAJA Preparation 1.5 Graser, Jonnah 6/20/2018 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Graser, Jonnah 9.30  (Client = Melissa Dionne Labrusciano) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Gifford, Kyrsten) or (Timekeeper = Graser, Jonnah) or (Tim...   

Exhibit D Expenses

Exhibit D Ledger Labrusciano, Melissa Dionne Date - W Subject Amount Timekeeper Date 3 / 7 / 2017 Federal Court - Service of Process - prepare service packets USAO, OGC, AG $ 17. 67 Callahan, Michelle $ 17. 67 Type = Cost) and (Timekeeper = Callahan, Michelle)

Exhibit E Costs

Exhibit E Ledger Labrusciano, Melissa Dionne Date W Amount Timekeeper Subject Federal court filing fee paid to initiate civil case 2 / 8 / 2017 $ 400. 00 Smith, Michael P. $ 400. 00 Type = Cost) and (Timekeeper = Smith, Michael P .)

Exhibit F Affirmation and Waiver of Direct Payment of EAJA Fees

Exhibit F UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA (PRESCOTT DIVISION) -------------------------------------------------------------- MELISSA DIONNE LABRUSCIANO, AFFIRMATION AND WAIVER OF DIRECT PAYMENT Plaintiff, OF EAJA FEES v. Civil Action No.: _________________ CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------------------------- Melissa Dionne Labrusciano, hereby states the following: 1. I am the Plaintiff in the above-captioned matter. 2. That I have retained Olinsky Law Group as my attorney for the above-captioned matter. 3. At the time that this action was begun, my net worth was less than $2,000,000.00. 4. If my case is remanded by the Federal Court, either by stipulation or order, my attorney may file for attorney's fees pursuant to the Equal Access to Justice Act (EAJA). I understand that the EAJA fees are paid by the Federal Government and do not come from any back benefits owed to me by the Social Security Administration. 5. I hereby agree to waive direct payment of the EAJA fees and assign said fees to be paid directly to my attorney. 6. I understand that my attorney may still petition the Administration for legal fees for his or her work before the Administration that will be paid from my back benefits. As the Plaintiff in this case, I hereby declare and affirm under penalty of perjury that the information above is true and correct. Executed on February 8, 2017. __________________________ Melissa Dionne Labrusciano Plaintiff

Memorandum in Support

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Melissa Dionne Labrusciano 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Melissa Dionne Labrusciano, 13 14 Plaintiff, Civil No. 3:17-cv-08027-MHB 15 16 vs. MEMORANDUM IN SUPPORT OF 17 PLAINTIFF'S PETITION FOR 18 Nancy A. Berryhill, Acting COUNSEL FEES ALLOWANCE Commissioner of Social Security, UNDER EQUAL ACCESS TO 19 JUSTICE ACT, 28 U.S.C. § 2412 20 Defendant 21 22 Memorandum in Support of Plaintiff's Petition for Counsel Fees 23 Allowance Under Equal Access to Justice Act 24 1. This is a memorandum in support of a petition for an award of 25 Counsel Fees under the Equal Access to Justice Act 28 U.S.C.A. § 2412 "EAJA." 26 27 28 Page 9 1 2. An EAJA award is available to a "prevailing party" in a case against 2 the Federal Government, including Social Security cases, in the following 3 4 instances: 5 (a) When and if the plaintiff actually "prevails"; 6 (b) The Government's position in litigation is "not substantially 7 8 justified"; 9 (c) Plaintiff is a party whose net assets are worth less than two 10 million dollars; and 11 (d) The case has concluded with a "final order" which is non- 12 13 appealable, or will not be appealed. 14 3. Addressing these elements in reverse order, it is clear that the 15 Plaintiff has met the burden necessary to receive EAJA fees. 16 17 (a) Plaintiff's net worth did not exceed $2,000,000.00 when this 18 action was filed. 19 (b) After service of the summons and complaint, and filing of 20 21 brief by the Plaintiff, parties filed a stipulation to remand, the Court issued a 22 Decision and Order remanding to the Commissioner for further administrative 23 proceedings under sentence four 42 U.S.C.A. § 405(g). 24 25 (c) Judgment was entered on March 29, 2018. The Judgment has 26 not been appealed. 27 (d) Plaintiff has prevailed because the District Court remanded 28 Page 10 1 the case under sentence four of 42 U.S.C.A. § 405(g). Shalala v. Schaefer, 509 2 U.S. 292, 113 S. Ct. 2625, 125 L. Ed. 2d 239 (1993). 3 4 4. The commissioner was not substantially justified. As the U. S. 5 Supreme Court has held, "the required 'not substantially justified' allegation imposes no 6 proof burden on the fee applicant. It is, as its text conveys, nothing more than an 7 8 allegation or pleading requirement. The burden of establishing 'that the position of the 9 United States was substantially justified' … must be shouldered by the Government." 10 Scarborough v. Principi, 541 U.S. 401, 124 S. Ct. 1856, 158 L. Ed. 2d 674 (2004) 11 While the fee applicant such as Plaintiff is required to "show" three of the 12 13 four elements—prevailing party status, financial eligibility, and amount sought— 14 Plaintiff need only "to allege" that the position of the government is not 15 substantially justified. Id. 16 17 WHEREFORE, because all four elements of an allowable application for 18 EAJA fees have been proven, petitioner requests that the Court issue an order: 19 20 1. Awarding an Equal Access to Justice Act Counsel Fee for $7,168.24; 21 and 22 2. Awarding Expenses in the amount of $17.67; and 23 3. Awarding cost in the amount of $400.00 to be reimbursed to client; 24 25 and 26 4. If the Plaintiff has no debt registered with the Department of Treasury 27 subject to offset that the fees be made payable to the attorney. 28 Page 11 1 Executed this June 26, 2018 2 3 Respectfully submitted, 4 /s/ Howard D. Olinsky 5 Howard D. Olinsky, Esq. 6 Admitted Pro Hac Vice Attorney for Plaintiff 7 Email: fedct@windisability.com 8 To: Elizabeth Strange, Esq. 9 Acting United States Attorney 10 District of Arizona 11 Daphne Banay, Esq. 12 Special Assistant United States Attorney Office of the General Counsel 13 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 14 Seattle, WA 98104-7075 15 State Bar No. WA21537 Fax: (206) 615-2531 16 Email: daphne.banay@ssa.gov 17 Telephone: (206) 615-2113 18 19 Attorneys for Defendant 20 21 22 23 24 25 26 27 28 Page 12

Certificate of Service

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Melissa Dionne Labrusciano 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Melissa Dionne Labrusciano, 13 14 Plaintiff, Civil No. 3:17-cv-08027-MHB 15 vs. CERTIFICATE OF SERVICE 16 17 18 Nancy A. Berryhill, Acting 19 Commissioner of Social Security, 20 Defendant 21 22 Certificate of Service 23 I certify that I have electronically moved for EAJA fees with the Clerk of 24 25 the District Court using the CM/ECF system, which sent notification of such filing 26 to: 27 28 Page 15 1 To: Elizabeth Strange, Esq. 2 Acting United States Attorney District of Arizona 3 4 Daphne Banay, Esq. 5 Special Assistant United States Attorney Office of the General Counsel 6 Social Security Administration 7 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 8 State Bar No. WA21537 9 Fax: (206) 615-2531 Email: daphne.banay@ssa.gov 10 Telephone: (206) 615-2113 11 Attorneys for Defendant 12 13 June 26, 2018 14 15 /s/ Howard D. Olinsky Howard D. Olinsky, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 16

Statement pursuant to Local Rule 54.2 (D) (1)

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Melissa Dionne Labrusciano 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Melissa Dionne Labrusciano, 13 14 Plaintiff, Civil No. 3:17-cv-08027-MHB 15 16 vs. CERTIFICATE OF LOCAL RULE 17 54.2 (D) (1) 18 Nancy A. Berryhill, Acting 19 Commissioner of Social Security, 20 Defendant 21 22 Certificate of Local Rule 54.2 (D) (1) 23 I certify that I have conferred with Counsel for Defendant via emails on 24 25 June 25, 2018 regarding Plaintiff's Motion for Attorney's Fees Pursuant to the 26 Equal Access to Justice Act. The Defendant consents to Plaintiff's request. 27 To: Elizabeth Strange, Esq. 28 Acting United States Attorney Page 13 1 District of Arizona 2 Daphne Banay, Esq. 3 Special Assistant United States Attorney 4 Office of the General Counsel Social Security Administration 5 701 Fifth Avenue, Suite 2900 M/S 221A 6 Seattle, WA 98104-7075 State Bar No. WA21537 7 Fax: (206) 615-2531 8 Email: daphne.banay@ssa.gov Telephone: (206) 615-2113 9 10 Attorneys for Defendant 11 June 26, 2018 12 13 /s/ Howard D. Olinsky Howard D. Olinsky, Esq. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 14

Attorney Fees

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Melissa Dionne Labrusciano 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Melissa Dionne Labrusciano, 13 14 Plaintiff, Civil No. 3:17-cv-08027-MHB 15 16 vs. MOTION FOR ATTORNEY'S 17 FEES PURSUANT TO THE 18 Nancy A. Berryhill, Acting EQUAL ACCESS TO JUSTICE Commissioner of Social Security, ACT, 28 U.S.C.A. § 2412 (WEST) 19 20 Defendant 21 22 PLAINTIFF'S MOTION FOR ATTORNEY'S FEES PURSUANT TO THE 23 EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C.A. § 2412 (WEST) 24 25 COUNSEL: 26 PLEASE TAKE NOTICE that upon the annexed affirmation of Howard 27 D. Olinsky, attorney for the plaintiff, and other papers, the plaintiff will make a 28 Page 1 1 motion before Hon. G Murray Snow, at Sandra Day O'Connor U.S. Courthouse, 2 Suite 522, 401 West Washington Street, SPC 50, Phoenix, AZ 85003 on a date to 3 4 be set by the court, for an order: 5 1. Awarding an Equal Access to Justice Act Counsel Fee for $7,168.24, and 6 7 2. Awarding Expenses in the amount of $17.67; and 8 3. Awarding cost in the amount of $400.00 to be reimbursed to client; and 9 4. If the Plaintiff has no debt registered with the Department of Treasury 10 11 subject to offset that the fees be made payable to the attorney. 12 13 Plaintiff, by her attorney, Howard D. Olinsky moves the court for an award to be 14 paid by the Defendant under the Equal Access to Justice Act, 28 U.S.C.A. § 2412. 15 16 17 Plaintiff may receive an award under the Equal Access to Justice Act because she 18 is the prevailing party, is an individual whose net worth did not exceed two 19 million dollars when the action was filed, and the position of the United States in 20 21 this litigation and/or at the agency was not substantially justified. Although the 22 burden of proof on substantial justification is on the government, Plaintiff's 23 supporting memorandum briefly addresses this issue. 24 25 26 There are no special circumstances in this case which make an award under the 27 EAJA unjust. 28 Page 2 1 This motion is supported by an affirmation of Plaintiff's attorney, attached time 2 and cost records and an Affidavit and Waiver of Direct Payment by the plaintiff. 3 4 5 Executed this June 26, 2018 6 Respectfully submitted, 7 8 /s/ Howard D. Olinsky Howard D. Olinsky, Esq. 9 Admitted Pro Hac Vice 10 Attorney for Plaintiff Email: fedct@windisability.com 11 12 To: Elizabeth Strange, Esq. Acting United States Attorney 13 District of Arizona 14 Daphne Banay, Esq. 15 Special Assistant United States Attorney Office of the General Counsel 16 Social Security Administration 17 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 18 State Bar No. WA21537 19 Fax: (206) 615-2531 Email: daphne.banay@ssa.gov 20 Telephone: (206) 615-2113 21 Attorneys for Defendant 22 23 24 25 26 27 28 Page 3

Affidavit in Support of Motion

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Melissa Dionne Labrusciano 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Melissa Dionne Labrusciano, 13 14 Plaintiff, Civil No. 3:17-cv-08027-MHB 15 16 vs. Attorney's affirmation in support of 17 Fees Pursuant to the Equal Access to 18 Nancy A. Berryhill, Acting Justice Act, 28 U.S.C. § 2412 19 Commissioner of Social Security, 20 Defendant 21 22 Attorney's Affirmation in Support of Fees Pursuant to the Equal Access to 23 Justice Act, 28 U.S.C. § 2412 ________________________________________ 24 25 Howard D. Olinsky, being duly sworn deposes and states: 26 27 1. I am an attorney licensed to practice law in the State of New York, 28 admitted to practice pro hac vice before this Court. Page 4 1 2. I make this affirmation knowing that the Court will rely upon it in 2 assessing any awards under the Equal Access to Justice Act. 28 U.S.C.A. § 2412. 3 4 3. There are no special circumstances in this case which make an award 5 under the EAJA unjust. 6 4. The Court ordered on March 29, 2018 that the above-entitled case be 7 8 remanded for further administrative proceedings, under the fourth sentence of 42 9 U.S.C.A. § 405(g) (West). 10 5. For the Equal Access to Justice Act, I am requesting an hourly rate 11 of $196.79 for attorney time through 2017 and 2018. See generally, 12 13 http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 U.S.C.A 9th 14 Circuit EAJA Table. If attorney fees are calculated at this rate for 31.7 hours of 15 work performed in 2017 and 2018 they total $6,238.24. 16 17 6. I am requesting $100.00 per hour for 9.3 hours of paralegal time 18 equaling $930.00. I am requesting $7,168.24 for Counsel Fees which include 19 attorney and paralegal time. 20 21 7. The time accounting is presented to the court in two fashions. 22 Exhibit A is the time spent by all who worked on this case in chronological 23 sequence. Exhibit B is broken down by attorneys. The attorneys involved in this 24 25 case are Howard D. Olinsky, Esq., Michelle Fecio, Esq., Edward A. Wicklund, 26 and Katie Tastrom, Esq.. Exhibit C is broken down by paralegals. The paralegals 27 28 Page 5 1 involved in this case are Kyrsten Gifford, Michael Smith, Moira Deutch, Michelle 2 Callahan, and Jonnah Graser. 3 4 8. I am requesting reimbursement of expenses of $17.67 for Certified 5 Mail for the summons and complaint to the defendant's office's as shown on 6 Exhibit D. The Supreme Court has clarified that only the items specifically listed 7 8 in 28 U.S.C. §1920 are compensable as costs. See Crawford Fitting Co. v. J. T. 9 Gibbons, Inc., 482 U.S. 437, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987). 28 10 U.S.C.A. § 1920 (West) provides: 11 A judge or clerk of any court of the United States may tax as costs the 12 following: 13 a.) fees of the clerk and marshal; b.) fees of the court reporter for all or any part of the stenographic transcript 14 necessarily obtained for use in the case; 15 c.) fees and disbursements for printing and witnesses; d.) fees for exemplification and copies of papers necessarily obtained for 16 use in the case; 17 e.) docket fees under section 1923 of this title; f.) compensation of court appointed experts, compensation of interpreters, 18 and salaries, fees, expenses, and costs of special interpretation services under 19 section 1828 of this title. 20 21 The postage fee to serve process by certified mail is reimbursable as an 22 expense. 23 9. I am requesting reimbursement of costs of $400.00 for the federal 24 25 court filing fee paid to initiate civil action as shown on Exhibit E. 26 10. The attached records were contemporaneously created and stored in 27 the firm's Prevail Database, and are printed out and attached. The itemized time 28 Page 6 1 represents hours spent preparing and handling this case for U.S. District Court. 2 Clerical time is not included in this petition or has been zeroed out. 3 4 Waiver of Direct Payment of EAJA Fees 5 11. Attached is an Affidavit and Waiver of Direct Payment duly 6 executed by the plaintiff (Exhibit F). With this Waiver, if Plaintiff owes a debt 7 8 that qualifies under the Treasury Offset Program (31 U.S.C.A. § 3716 (West)), any 9 payment shall be made payable to the Plaintiff and delivered to the Plaintiff's 10 attorney. If the United States Department of Treasury determines that Plaintiff 11 owes no debt subject to offset, the government may accept the assignment of 12 13 EAJA fees and pay such fees directly to the Plaintiff's attorney. Astrue v. Ratliff, 14 560 U.S. 586, 130 S. Ct. 2521, 177 L. Ed. 2d 91 (2010). 15 16 17 WHEREFORE, because all four elements of an allowable application for 18 EAJA fees have been proven, petitioner requests that the Court issue an order: 19 20 1. Awarding an Equal Access to Justice Act Counsel Fee for $7,168.24; 21 and 22 2. Awarding Expenses in the amount of $17.67; and 23 3. Awarding cost in the amount of $400.00 to be reimbursed to client; 24 25 and 26 4. If the Plaintiff has no debt registered with the Department of Treasury 27 subject to offset that the fees be made payable to the attorney. 28 Page 7 1 Executed this June 26, 2018 2 Respectfully submitted, 3 4 /s/ Howard D. Olinsky Howard D. Olinsky, Esq. 5 Admitted Pro Hac Vice 6 Attorney for Plaintiff Email: fedct@windisability.com 7 8 9 To: Elizabeth Strange, Esq. 10 Acting United States Attorney District of Arizona 11 12 Daphne Banay, Esq. Special Assistant United States Attorney 13 Office of the General Counsel Social Security Administration 14 701 Fifth Avenue, Suite 2900 M/S 221A 15 Seattle, WA 98104-7075 State Bar No. WA21537 16 Fax: (206) 615-2531 17 Email: daphne.banay@ssa.gov Telephone: (206) 615-2113 18 19 Attorneys for Defendant 20 21 22 23 24 25 26 27 28 Page 8

Response to Motion

1 Elizabeth A. Strange First Assistant United States Attorney 2 District of Arizona 3 Daphne Banay 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA21537 8 Fax: (206) 615-2531 daphne.banay@ssa.gov 9 Telephone: (206) 615-2113 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Melissa Dionne Labrusciano, No. CV-3:17-cv-08027-MHB 14 15 Plaintiff, 16 DEFENDANT'S RESPONSE TO vs. PLAINTIFF'S MOTION FOR 17 ATTORNEY FEES Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 Defendant, the Commissioner of Social Security, files this response to Plaintiff's 22 request for an award of attorney's fees pursuant to 28 U.S.C. § 2412 as set forth in 23 Plaintiff's Motion (Docket #18). Defendant has no objection to Plaintiff's request for an 24 25 award of attorney's fees in the amount of $7,168.24 and expenses in the amount of 26 $17.67, pursuant to the Equal Access to Justice Act, 28 USC § 2412(d), and for an award 27 of costs in the amount of $400.00 pursuant to the Equal Access to Justice Act, 28 U.S.C. 28 1 §1920, as set forth under the terms stated in Plaintiff's proposed order (Docket # 18-1) in 2 this matter. 3 DATED this 28th day of June 2018. 4 5 Respectfully submitted, 6 ELIZABETH A. STRANGE First Assistant United States Attorney 7 District of Arizona 8 s/ Daphne Banay 9 DAPHNE BANAY 10 Special Assistant United States Attorney 11 Of Counsel for the Defendant: 12 MATHEW W. PILE 13 Acting Regional Chief Counsel, Social Security Administration 14 Office of the General Counsel, Region X 701 Fifth Avenue, Suite 2900 M/S 221A 15 Seattle, WA 98104-7075 16 17 18 CERTIFICATE OF SERVICE 19 I hereby certify that the foregoing Defendant's Response to Plaintiff's Motion for 20 21 Attorney Fees was filed with the Clerk of the Court on June 28, 2018, using the CM/ECF 22 system which will send notification of such filing to the following: Howard D Olinsky. 23 24 s/ Daphne Banay 25 DAPHNE BANAY Special Assistant U.S. Attorney 26 Office of the General Counsel 27 28 2

Order on Motion for Attorney Fees

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Melissa Dionne Labrusciano, No. CV-17-08027-PCT-MHB 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 Pending before the Court is Plaintiff Melissa Dionne Labrusciano's application 17 for attorney's fees under the Equal Access to Justice Act (Doc. 18). Defendant filed a 18 response stating that the Commissioner has no objection to Plaintiff's request (Doc. 20). 19 Accordingly, the Court having reviewed Plaintiff's submissions, including, the 20 application and accompanying exhibits, and having reviewed the Commissioner's non- 21 opposition to Plaintiff's request, 22 IT IS ORDERED that Plaintiff Melissa Dionne Labrusciano's application for 23 attorney's fees under the Equal Access to Justice Act (Doc. 18) is GRANTED; 24 IT IS FURTHER ORDERED that Plaintiff is awarded attorney fees in the 25 amount of $7,168.24, expenses in the amount $17.67, and costs in the amount of 26 $400.00 pursuant to the Equal Access to Justice Act; 27 \\\ 28 \\\ 1 IT IS FURTHER ORDERED that, this award shall be payable to Plaintiff and is 2 subject to offset to satisfy any pre-existing debt that Plaintiff owes the United States 3 pursuant to Astrue v. Ratliff, 560 U.S. 586, 594 (2010). 4 DATED this 17th day of July, 2018. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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Description
02/28/2017
PRO HAC VICE FEE PAID. $ 35, receipt number PHX182571 as to Howard D Olinsky. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
1
02/14/2017
COMPLAINT. Filing fee received: $ 400.00, receipt number 0970-13918061 filed by Melissa Dionne Labrusciano. (submitted by Howard Olinsky)
1
Civil Cover Sheet
2
Letter
2 Attachments
2
02/14/2017
SUMMONS Submitted by Melissa Dionne Labrusciano. (submitted by Howard Olinsky)
1
Summons
2
Summons
2 Attachments
3
02/14/2017
Filing fee paid, receipt number 0970-13918061. This case has been assigned to the Honorable G Murray Snow. All future pleadings or documents should bear the correct case number: CV-17-08027-PCT-GMS. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached.
4
02/14/2017
Summons Issued as to Commissioner of Social Security Administration, U.S. Attorney and U.S. Attorney General.
1
Summons
2
Summons
2 Attachments
5
02/15/2017
ORDER directing the Clerk of Court to terminate any or all Defendants in this matter, without further notice, that have not been served within the time required by Fed. R. Civ. P. 4(m) on 5/16/2017. Signed by Judge G Murray Snow on 2/15/2017.
6
02/15/2017
SOCIAL SECURITY SCHEDULING ORDER: See Order for deadlines and details. Signed by Judge G Murray Snow on 2/15/2017.
7
02/21/2017
MOTION for Admission Pro Hac Vice as to attorney Howard D. Olinsky by Melissa Dionne Labrusciano.
1
Letter to Clerk
1 Attachment
8
02/28/2017
ORDER pursuant to General Order 09-08 granting 7 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
9
03/21/2017
SERVICE EXECUTED filed by Melissa Dionne Labrusciano: Return of Service re: Summons, Complaint and Scheduling Order upon US Attorney's Office, Office of General Counsel, Attorney General on 3/13/2017.
10
04/19/2017
NOTICE of Appearance by Daphne Banay on behalf of Commissioner of Social Security Administration.
11
05/12/2017
ANSWER to [1] Complaint by Commissioner of Social Security Administration.
12
05/12/2017
NOTICE of Filing Certified Copy of Administrative Transcript re: [11] Answer to Complaint filed by Commissioner of Social Security Administration.
1
Certification Page
2
Court Transcript Index
3
Documents Related to Administrative Process Including Transcript of Oral Hearin
4
Payment Documents and Decisions
5
Jurisdictional Documents and Notices
6
Non Disability Related Development
7
Disability Related Development
8
Medical Records Part 1
9
Medical Records Part 2
10
Medical Records Part 3
10 Attachments
13
05/25/2017
CONSENT TO MAGISTRATE JUDGE TRIAL. Magistrate Judge Michelle H Burns added. Judge G Murray Snow no longer assigned to case. All further pleadings shall list the following case number: CV-17-8027-PCT-MHB. Signed by Judge G Murray Snow on 5/25/17.
14
07/11/2017
OPENING BRIEF by Melissa Dionne Labrusciano Social Security.
15
08/10/2017
RESPONSE BRIEF by Commissioner of Social Security Administration.
16
03/29/2018
ORDER: The Commissioner's decision is VACATED and this matter is REMANDED to the Commissioner for further administrative proceedings as set forth in this Order. IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment accordingly. Signed by Magistrate Judge Michelle H Burns on 3/29/2018.
17
03/29/2018
CLERK'S JUDGMENT - Pursuant to the Court's Order filed March 29, 2018, the decision of the Commissioner of Social Security is vacated, and this case is remanded to the Social Security Administration for further proceedings consistent with the Order.
18
06/26/2018
Attorney Fees
1
Text of Proposed Order
1 Attachment
19
06/26/2018
Affidavit in Support of Motion
1
Exhibit A All Professional Time
2
Exhibit B Attorney Time
3
Exhibit C Paralegal Time
4
Exhibit D Expenses
5
Exhibit E Costs
6
Exhibit F Affirmation and Waiver of Direct Payment of EAJA Fees
7
Memorandum in Support
8
Certificate of Service
9
Statement pursuant to Local Rule 54.2 (D) (1)
9 Attachments
20
06/28/2018
Response to Motion
21
07/18/2018
Order on Motion for Attorney Fees
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