Leon de Nunez v. Commissioner of Social Security Administration
Court Docket Sheet

District of Arizona

2:2017-cv-01411 (azd)

COMPLAINT filed by Margarita Leon de Nunez. (Submitted by Howard Olinsky)

Case 2:17-cv-01411-DKD Document 1 Filed 05/08/17 Page 1 of 8 1 Howard D. Olinsky 2 Olinsky Law Group One Park Place 3 300 South State Street 4 Suite 420 Syracuse, NY 13202 5 N.Y. Bar No. 2044865 6 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 7 holinsky@windisability.com 8 Attorney for Plaintiff Margarita Leon De Nunez 9 10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 11 PRESCOTT DIVISION 12 MARGARITA LEON DE NUNEZ,) NO. 13 Soc. Sec. #XXX-XX-7548,) 14 Plaintiff,) 15) v.) COMPLAINT 16) NANCY A. BERRYHILL, acting 17) Commissioner of Social Security,) 18 Defendant.) 19) 20 Plaintiff, Margarita Leon De Nunez, by her attorney, Howard D. Olinsky, alleges 21 22 as follows: 23 The jurisdiction of this Court is invoked pursuant to 42 U.S.C. §§ 405(g) 1. 24 and 1383 (c)(3) to review a decision of the Commissioner of Social Security denying 25 26 Plaintiffs application for Social Security Disability Insurance benefits and Supplemental 27 Security Income benefits for lack of disability. 28 Case 2:17-cv-01411-DKD Document 1 Filed 05/08/17 Page 2 of 8 1 2. This action is an appeal from a final administrative decision denying 2 Plaintiff's claim. 3 4 3. This action is commenced within the appropriate time period set forth in th 5 attached Appeals Council Notice dated March 6, 2017. (Exhibit A). 6 4. Plaintiff, whose social security number is XXX-XX-7548, resides in 7 Queencreek, Pinal County, Arizona, which is within this judicial district and division. 8 9 5. The Defendant, Nancy A. Berryhill, is the acting Commissioner of Social 10 Security of the United States of America. 11 6. Plaintiff is disabled. 12 13 7. The agency committed error of law by denying Appeals Council review of 14 the decision by the Administrative Law Judge, or otherwise to deny relief that was within 15 the authority of the Appeals Council. 16 17 8. The conclusions and findings of fact of the Defendant are not supported by 18 substantial evidence and are contrary to law and regulation. 19 WHEREFORE, Plaintiff prays that this Court: 20 21 1. Find that the Plaintiff is entitled to Social Security Disability Insurance 22 benefits and Supplemental Security Income benefits under the provisions of the Social 23 Security Act; or 24 25 2. Remand the case for a further hearing; 26 Award attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 3. 27 2412, on the grounds that the Commissioner's action in this case was not substantially 28 justified; and Case 2:17-cv-01411-DKD Document 1 Filed 05/08/17 Page 3 of 8 1 4. Order such other and further relief as the Court deems just and proper. 2 Dated this 8th day of May, 2017. 3 4 5 BY: slHoward D. Dlinsky 6 Howard D. Olinsky, Esq. Attorney for Plaintiff 7 (Pending Admission Pro Hac Vice) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A Case 2:17-cv-01411-DKD Document 1 Filed 05/08/17 Page 5 of 8 SOCIAL SECURITY ADMINISTRATION Office d Disability Adjudication and Review 5107 Lee&bUrg Pike Falls Church, VA 22041-3265 Telephone: (877) 670-2722 Date: March 6, 2017 NOTICE OF APPEALS COUNCIL ACTION 'I'his is about your request for review of the ~ve Law Judge's oomlion dated September 18$ lOIS. We found no reason under our rules to review the Administrative Law Judge's declsioo. Therefore. we have denied your request fur review. 1'his meam that the Administrative Law Judge's decision iltbe fmal decision ofthe.Commissioner of Social 8ewrity in your cue, We applied the laws, regulations and rulings in effect as ofthe date we took thill! action. Under OW'rules, we will review your case for any of the following reasons: • '!'here is an error of law. • 'I'he decision is oot supported by substaDtial evidence. I I.... " We:reooive new and:material evidence and the decision is contnuy to the weight of all the evidence now in the record 8usped Soda! Sem:rity Fnm.d1 PI~ vDit http://oig.ua.gov/r or WI the Impedol' Gen.end's Fmml HotHne at l-&OO-Z69-m7t (TTY 1-866.501-21(1)., Case 2:17-cv-01411-DKD Document 1 Filed 05/08/17 Page 6 of 8 Page2of3 WIud We eo.IIIend In looking at your cue, we conaidered 1he reasons you disagree with the deciaion in the materiallistcd on the enclosed Order of Appeals Council. We found that this information does not provide a basis for dumgiDg the Administrative Law Judge's decision. Iryou...... WItII oar A.dIGa Ifyou disagree wdb. our aaioD, you may uk. for court review oftbe AdmiuiSl.'nttive Law Judge's decision by filillg a civil action. Ifyou do not ask. for court review, the Administrative Law Judge's deoition will be a final deoUion that can be changed only under special rules. How fa FIle • CivO. AdiGD You may file a civil action (uk for court review) by tiling a compJaiDt in the United States Dis1ri.ct Court for the judicial district in which you live. The complaint should DIIJIlC the Commission« of Social Security as tho dcfendaut and should include the Social Security IlUlDba(s) shown at flIe top of ibis letter. You or your representative must deliver copies of your complaint and of tile sumtnons issued by the oourt to the U.S. Attorney for the judicial district when you me your complaint, 88 provided in rule 4(i) of tile Federal Rules ofCiviJ Procedure. You or your representative must also send ccpies ofthe compIai.at and SUIDJIlODS. by certified or rcgistc:rcd mail, to the Social Security AdmiDistration's Office oftile General Counsel that is I'CSpoDSible for the processing and lumdling oflitigation in the partic:uIar judicial district in which the complaint is filed. The names, addresses, and jurisdictional responsibilities ofthese om"" are published in the Federal Rom.. (70 FR 73320, December 9, 2005), and arc available on-line at the Social Security Administration's Internet lite, http://policy.ssa.gov/poms.nsf7linkslO203106020. You or your rOJRlODlative must also send copies oftho complaint and SUIDJIlODS. by catitied or registered mail, to the Attorney General of tho United States, Washington, DC 20S30. Time To,.. CMl ActlB • You have 60 days to file a civil action (ask for court review). • The 60 days start the day aft« you reeeive this letter. We a88UIDC you received this letter S days after the date on it unless you show us that you did not receive it within the S-day period. See Next Page Case 2:17-cv-01411-DKD Document 1 Filed 05/08/17 Page 7 of 8 7548) Page30f3 ~ If you cannot file for court review within 60 da~ you may ask. the Appeals Council to extend your time to me. Yoo:must have a good muon for waiting mom than 60 days to ask for oourt review. You must make the request in writing and give your nwlOO(s) in the request. Yau must mail your request for more time to the Appeals Council at the address shown at the top oftbis notice. Please put the Social Security number(s) also shown at the top oftrus notice 00 your request. We will send you a letter telling you whether your request for more time Iw! been granted. The ril#. to court review for. c1ai~ und~ Title II (Social Security) is providcxi for in Section 20500 ofthe Social Security Ad. '$8 s~oo is also Section 405(g) of Title 42 of the United States Code.. The right to court review for claims under Title XVI (Supplemental Security Income) is provided for in Section 1631(0)(3) of the Social Security Ad. This sootion is also Section = iii 1383(c) of Title 42 oftile United States Code..... II The rules on filing civil actions are Rules 4(c) and (i) in the Federal Rules of Civil Procedure. lfyou have any questions, you may c;all, write, or visit any Social Security office. Ifyoo de call or visit an office, please have tbisnotice with you. The telephone number of the local offic~ that serves your area is (866)%4-7417. Its add.mss is: I Social Security 253 W Superstition Blv Apache Junction, AZ 85120-4125 cc: Bradford D. Myler P.O. Box 127 Leh4 lIT 84043..0127 Case 2:17-cv-01411-DKD Document 1 Filed 05/08/17 Page 8 of 8 Social Security Administration OFFICE OF DISABILITY ADJUDICATION AND REVIEW ORDER OF APPEALS COUNCIL IN THE CASE Ql! CLAIM FOR Period of Disability Disability Insumnce Benefits Su.pplemental S~ Income (Claimant) (Wage Earner) 'I'l1e Appeals Council has received additional evidem:e which it is making put ofthe reoord That evidence conJists ofthe following exhibits: Exhibit ISH Represemative brief dated October 8, 201' from Howard D. Olinsky Date: March 6, 2017

Civil Cover Sheet

Case 2:17-cv-01411-DKD Document 1-1 Filed 05/08/17 Page 1 of 2 http://www.azd.uscourts.gov/cgi-bin/generate_civilJs44.] 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 for the 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 only 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): Margarita Leon De Nunez Defendant(s): Nancy A. Berryhill County of Residence: Pinal County of Residence: Pinal County Where Claim For Relief Arose: Pinal Plaintiffs Atty(s): Defendant's Atty(s): Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State Street, Ste. 420 Syracuse, New York 13202 315-701-5780 IFP REQUESTED II. Basis of Jurisdiction: 2. U.S. Government Defendant HI. Citizenship of Principal Parties (Diversity Cases Only) Plaintiff:-N/A Defendant:-N/A IV. Origin: 1. Original Proceeding V. Nature of Suit: 863 DIWC/DIWW (405(g)) Vl.Cause of Action: 42 USC 405(g) and 42 USC 1383(c)(3): Denial of Social Security Disability Insurance benefits and Supplemental Security Income benefits. VII. Requested in Complaint Class Action: No 1 of 2 S/R/17 lO-M A l U Case 2:17-cv-01411-DKD Document 1-1 Filed 05/08/17 Page 2 of 2 http://www.azd.uscourts.gov/cgi-bin/generate__civilJs44 Dollar Demand: Jury Demand: No VIII This case is not related to another case. Signature: s/Howard P. Olinskv Date: 5/8/2017 If any of this Information is Incorrect, please go back to tie 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 2 of 2 S/8/17 1ft-?.QAA

APPLICATION for Leave to Proceed In Forma Pauperis by Margarita Leon de Nunez. (Submitted by Howard Olinsky)

Case 2:17-cv-01411-DKD Document 2 Filed 05/08/17 Page 1 of 5 Page I of 5 AO 239 (Rev. 01/15) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) UNITED STATES DISTRICT COURT for the District of Arizona MARGARITA LEON DE NUNEZ) Plain tiff/Pelitioner) y ^) Civil Action No. NANCY A. BERRYHILL, ACTING COMM. OF SS) Defendant/Respondent) APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (Long Form) Affidavit in Support of the Application Instructions I am a plaintiff or petitioner in this case and declare Complete ail questions in this application and then sign it. that I am unable to pay the costs of these proceedings Do not leave any blanks: if the answer to a question is "0," and that I am entitled to the relief requested. I declare "none," or "not applicable (N/A)," write that response. If under penalty of perjury that the information below is you need more space to answer a question or to explain your true and understand that a false statement may result in answer, attach a separate sheet of paper identified with your a dismissal of my claims. name, your case's docket number, and the question number. Signed: Date: 4/26/2017 For both you and your spouse estimate the average amount of money received from each of the following sources during the past 12 months. Adjust any amount that was received weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross amounts, that is, amounts before any deductions for taxes or otherwise. Income source Average monthly income Income amount expected amount during the past 12 next month months You Spouse/You Spouse/' Employment $ o $ $ o $ Self-employment $ Q $ $ (3 $ Income from real property (such as rental income) $ i $ $ ^ $ j Interest and dividends S 0 $ $ o $ Gifts $ 0 $ $ G $ Alimony Child support $ $ o 0 $ $ $ $ ao $ $ Case 2:17-cv-01411-DKD Document 2 Filed 05/08/17 Page 2 of 5 Page 2 of 5 AO 239 (Rev. 01/15) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) Retirement (such as social security, pensions, annuities, insurance) $ o $ $ a $ Disability (such as social security, insurance payments) $ o $ $ 6 $ Unemployment payments $ o $ $ o $ Public-assistance (such as welfare) "to $ VK) $ $ (!J?2M I AVJ $ Other (specify)'. $ o $ $ $ $ ^ 2.1Yrv>0 ^ 0.00 $/>*o $ 0.00 Total monthly income: List your employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.) Employer Address Dates of employment Gross monthly pay $ J__ Vvyg noi-S'oCe Sbj \ $ List your spouse's employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.) Employer Address Dates of employment Gross monthly pay $ $ $ 4 How much cash do you and your spouse have? $ Below, state any money you or your spouse have in bank accounts or in any other financial institution. Financial institution Type of account Amount you have Amount your spouse has $ $ 1 $ $ $ $ If you are a prisoner, you must attach a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months in your institutional accounts. If you have multiple accounts, perhaps because you have been in multiple institutions, attach one certified statement of each account. Case 2:17-cv-01411-DKD Document 2 Filed 05/08/17 Page 3 of 5 Page 3 of 5 AO 239 (Rev. 01/15) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) List the assets, and their values, which you own or your spouse owns. Do not list clothing and ordinary household furnishings. Assets owned by you or your spouse Home (Value) $ O Other real estate (Value) $ & Motor vehicle #/(Value) $ 0 Make and year: Model: Registration #: $ Motor vehicle #2 (Value) G* Make and year: Model: Registration #: Other assets (Value) $ D Other assets (Value) $ 73 6. State every person, business, or organization owing you or your spouse money, and the amount owed. Person owing you or your spouse Amount owed to you Amount owed to your spouse money $ $/$ $ $ $ State the persons who rely on you or your spouse for support. Name (or, if under 18, initials only) Relationship Age PlO 1/Case 2:17-cv-01411-DKD Document 2 Filed 05/08/17 Page 4 of 5 Page 4 of 5 AO 239 (Rev. 01/15) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) Estimate the average monthly expenses of you and your family. Show separately the amounts paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. You Your spouse Rent or home-mortgage payment (including lot rented for mobile home) Are real estate taxes included? • Yes • No $ d $ Is property insurance included? • Yes • No $ Utilities (electricity, heating fuel, water, sewer, and telephone) $ 6 Home maintenance (repairs and upkeep) $ C) s Food $ oL s Clothing $ $ d Laundry and dry-cleaning $ $ $ Medical and dental expenses S D Transportation (not including motor vehicle payments) $ ^ $ Recreation, entertainment, newspapers, magazines, etc. $ a $ Insurance (not deducted from wages or included in mortgage payments) Homeowner's or renter's: $ $ 0 $ $ Life: 0 Health: $ $ Motor vehicle: $ 7) s Other: $ 0 $ Taxes (not deducted from wages or included in mortgage payments) (specify): $ c) s Installment payments Motor vehicle: $ c) $ Credit card (name): S ^ $ Department store (name): $ & $ Other: $ 0 s Alimony, maintenance, and support paid to others $ o $ Case 2:17-cv-01411-DKD Document 2 Filed 05/08/17 Page 5 of 5 Page 5 of 5 AO 239 (Rev. 01/15) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) Regular expenses for operation of business, profession, or farm (attach detailed statement) $ 0 $ $ Other (specify): $ 0 $ 0.00 Total monthly expenses:. $ 65'Z M-9 Do you expect any major changes to your monthly income or expenses or in your assets or liabilities during the next 12 months? • Yes No If yes, describe on an attached sheet. 10. Have you spent — or will you be spending — any money for expenses or attorney fees in conjunction with this lawsuit? • Yes 13 No If yes, how much? $ 11. Provide any other information that will help explain why you cannot pay the costs of these proceedings h J_ onc-bW \0-Vhe ^'^co I^W1) fee. 1-Vo-L ho\<? IVT?//-m\ 12. Identify the city and state of your legal residence. Queen Creek, AZ Your daytime phone number: (480) 369-4357 Your age: 46 Your years of schooling:

SUMMONS Submitted by Margarita Leon de Nunez. (Submitted by Howard Olinsky)

Case 2:17-cv-01411-DKD Document 3 Filed 05/08/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona))) MARGARITA LEON DE NUNEZ) 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 plaintiffs 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 2:17-cv-01411-DKD Document 3 Filed 05/08/17 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,, K Cm P,1 4 (I)) This summons for (name of individual and title, if any) was received by me on (date) • I personally served the summons on the individual at (place) on (date); or • 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 • 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 • I returned the summons unexecuted because; or • Other (specify): My fees are $ for travel and $ for services, for a total of $ o.oo 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 2:17-cv-01411-DKD Document 3-1 Filed 05/08/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona))) MARGARITA LEON DE NUNEZ) Plaintiff(s))) Y. 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 M/S 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 plaintiffs 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 2:17-cv-01411-DKD Document 3-1 Filed 05/08/17 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. Cm P. 4 (I)) This summons for (name of individual and title, if any) was received by me on (date) • I personally served the summons on the individual at (place) on (date); or • 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 • 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 • I returned the summons unexecuted because; or • Other (specify): My fees are $ for travel and $ for services, for a total of $ O.OO 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 2:17-cv-01411-DKD Document 3-2 Filed 05/08/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona))) MARGARITA LEON DE NUNEZ) 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 plaintiffs 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 2:17-cv-01411-DKD Document 3-2 Filed 05/08/17 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 of individual and title, if any) was received by me on (date) • I personally served the summons on the individual at (place) on (date); or • 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 • 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 • 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:

This case has been assigned to the Honorable Magistrate Judge David K Duncan. All future pleadings or documents should bear the correct case number: CV-17-1411-PHX-DKD. Magistrate Election form attached.

Case 2:17-cv-01411-DKD Document 4 Filed 05/08/17 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA CONSENT TO EXERCISE OF JURISDICTION BY UNITED STATES MAGISTRATE JUDGE INSTRUCTIONS TO ALL PARTIES ACTION REQUIRED WITHIN 14 DAYS Pursuant to Local Rule of Civil Procedure 3.7(b), all civil cases will be randomly assigned to a U.S. District Court Judge or to a U.S. Magistrate Judge. When a case is filed and assigned to a U.S. Magistrate Judge, consent forms, for all parties, are stamped with a case number and given to the individual who is filing the case. On these forms, consent may be given to the jurisdiction of the magistrate judge by signing the consent section of the form. If all parties consent, the case will remain with the magistrate judge, pursuant to 28:636(c)(1). These cases are assigned to a magistrate judge for all purposes, including trial and final entry of judgment. Any appeal from a judgment entered by the Magistrate Judge may be taken directly to the United States Court of Appeals for the Ninth Circuit in the same manner as an appeal from any other judgment of a district court. Consent to proceed before a Magistrate Judge is voluntary and no adverse consequences of any kind will be felt by any party or attorney who objects to assignment of a case to the Magistrate Judge. The party filing the case is responsible for serving all parties with the consent forms. If any party chooses the district judge option, the case will be randomly reassigned to a U.S. District Court Judge. To elect to have the case heard before a U.S. District Court Judge, the District Judge Option section of the form must be completed. Each party must file the completed consent form and certificate of service with the court no later than 14 days after entry of appearance or the filing of the Notice of Removal. This document should be filed in paper form only and a copy must be served by mail or hand delivery upon all parties of record in the case.

Mag Consent Form

Case 2:17-cv-01411-DKD Document 4-1 Filed 05/08/17 Page 1 of 1 1 (FOR USE IN CIVIL CASES WITH MAG JUDGE AS PRESIDER) 2 RETURN THIS FORM TO THE CLERK’S OFFICE NOT LATER THAN FOURTEEN (14) DAYS FROM YOUR APPEARANCE IN THIS CASE. 3 Do NOT electronically file this document! 4 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 5) 6) Plaintiff,) 7) Case No. vs.) 8) Defendant.) 9) 10 CONSENT TO EXERCISE OF JURISDICTION BY UNITED STATES MAGISTRATE JUDGE 11 In accordance with provisions of Title 28, U.S.C. Sec. 636(c)(1), the undersigned (party)(counsel of record for 12) in the above-captioned civil matter hereby voluntarily consents to have a United 13 States Magistrate Judge conduct any and all further proceedings in the case, including trial and entry of a final judgment, with direct review by the Ninth Circuit Court of Appeals if an appeal is filed. 14 15 Date: Signature 16 17 Print Name 18 DISTRICT JUDGE OPTION 19 Pursuant to Title 28, U.S.C. Sec. 636(c)(2) the undersigned (party)(counsel of record for) 20 in the above captioned civil matter acknowledges the availability of a United States Magistrate Judge but elects to have this case 21 randomly assigned to a United States District Judge. 22 Date: Signature 23 24 Print Name 25 CERTIFICATE OF SERVICE 26 I hereby certify that a true copy of the foregoing Consent was served (by mail) (by hand delivery) on all parties of record 27 in this case, this day of, 20. 28 Signature

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

Case 2:17-cv-01411-DKD Document 5 Filed 05/08/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona))) MARGARITA LEON DE NUNEZ) 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 plaintiffs 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 10:21 am, May 08, 2017 s/Brian D. Karth, Clerk Case 2:17-cv-01411-DKD Document 5 Filed 05/08/17 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,, K Cm P,1 4 (I)) This summons for (name of individual and title, if any) was received by me on (date) • I personally served the summons on the individual at (place) on (date); or • 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 • 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 • I returned the summons unexecuted because; or • Other (specify): My fees are $ for travel and $ for services, for a total of $ o.oo 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 2:17-cv-01411-DKD Document 5-1 Filed 05/08/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona))) MARGARITA LEON DE NUNEZ) Plaintiff(s))) Y. 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 M/S 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 plaintiffs 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 10:22 am, May 08, 2017 s/Brian D. Karth, Clerk Case 2:17-cv-01411-DKD Document 5-1 Filed 05/08/17 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. Cm P. 4 (I)) This summons for (name of individual and title, if any) was received by me on (date) • I personally served the summons on the individual at (place) on (date); or • 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 • 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 • I returned the summons unexecuted because; or • Other (specify): My fees are $ for travel and $ for services, for a total of $ O.OO 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 2:17-cv-01411-DKD Document 5-2 Filed 05/08/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona))) MARGARITA LEON DE NUNEZ) 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 plaintiffs 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 10:22 am, May 08, 2017 s/Brian D. Karth, Clerk Case 2:17-cv-01411-DKD Document 5-2 Filed 05/08/17 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 of individual and title, if any) was received by me on (date) • I personally served the summons on the individual at (place) on (date); or • 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 • 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 • 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:

SCHEDULING ORDER: Social Security Scheduling Order - see attached PDF for details. Signed by Magistrate Judge David K Duncan on 05/09/2017.

Case 2:17-cv-01411-DKD Document 6 Filed 05/09/17 Page 1 of 3 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Margarita Leon de Nunez, No. CV-17-1411-PHX-DKD 9 Plaintiff, 10 v. SCHEDULING ORDER 11 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 27 filed, Plaintiff must file an opening brief addressing why the Commissioner’s decision is not supported by substantial evidence or 28 why the decision should otherwise be reversed or the case remanded. Plaintiff’s opening brief must set forth all errors which Plaintiff Case 2:17-cv-01411-DKD Document 6 Filed 05/09/17 Page 2 of 3 1 contends entitle him or her to relief. The brief must also contain, under appropriate headings and in the order indicated below, the 2 following: 3 (1) A statement of the issues presented for review, set forth in separate numbered paragraphs. 4 (2) A Statement of the Case. This statement should 5 indicate briefly the course of the proceedings and its disposition at the administrative level. 6 (3) A Statement of Facts. This statement of the facts must 7 include Plaintiff’s age, education, and work experience; a summary of the physical and mental impairments alleged; a 8 brief outline of the medical evidence; and a brief summary of other relevant evidence of record. Each statement of fact 9 must be supported by reference to the page in the record where the evidence may be found. 10 (4) An argument. The argument, which may be preceded 11 by a summary, must be divided into sections separately treating each issue. Each contention must be supported by 12 specific reference to the portion of the record [by reference to specific page numbers] relied upon and by 13 citations to statutes, regulations, and cases supporting Plaintiff’s position. If any requested remand is for the 14 purpose of taking additional evidence, such evidence must be described in the opening brief, and Plaintiff’s argument must 15 show that the additional evidence is material and that there is good cause for the failure to incorporate such evidence into 16 the record in a prior proceeding. If such additional evidence is in the form of a consultation examination sought at 17 Government expense, Plaintiff’s opening brief must make a proffer of the nature of the evidence to be obtained. 18 (5) A Short Conclusion Stating the Relief Sought. 19 (b) Answering Brief. Defendant must file an answering brief 20 within thirty (30) days after service of Plaintiff’s opening brief. Defendant’s brief must (1) respond specifically to each issue 21 raised by Plaintiff and (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 statement thereof. 23 (c) Reply Brief. Plaintiff may file a reply brief within fifteen 24 (15) days after service of Defendant’s brief. 25 (d) Length of Briefs. Unless otherwise ordered by the Court, the opening and answering briefs may not exceed twenty-five (25) 26 pages, including any statement of facts, with the reply brief limited to eleven (11) pages. The case will be deemed submitted as of the 27 date on which Plaintiff’s reply brief is filed or due. 28 (e) Oral Argument. If either party desires oral argument, it must be requested in the manner prescribed by Rule 7.2(f) of the-2-Case 2:17-cv-01411-DKD Document 6 Filed 05/09/17 Page 3 of 3 1 Local Rules of Civil Procedure upon the filing of the opening brief. Whether to allow oral argument is at the discretion of the Court. 2 3 LRCiv 16.1(a)–(e) (emphasis added). 4 II. Warnings. 5 In Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), the Court of Appeals 6 explained that the Commissioner’s decision to deny benefits would be overturned "only if 7 it is not supported by substantial evidence or is based on legal error." Correspondingly, 8 under our Local Rules, a general allegation that the Commissioner committed legal error, 9 or that the Commissioner’s determination is not supported by substantial evidence, is 10 insufficient to raise that issue for review. See Greenwood v. FAA, 28 F.3d 971, 977 (9th 11 Cir. 1994) (internal citation omitted) ("We review only issues which are argued 12 specifically and distinctly in a party’s opening brief. We will not manufacture arguments 13 for an appellant, and a bare assertion does not preserve a claim...."). Accordingly, if 14 either party fails to timely file a brief in full compliance with this Order, the Court may 15 strike the non-complying brief, dismiss the case, or remand to the agency, as appropriate. 16 See generally Fed. R. Civ. P. 41(b). 17 Dated this 9th day of May, 2017. 18 19 20 21 22 23 24 25 26 27 28-3-

ORDER granting [2] Motion for Leave to Proceed In Forma Pauperis. Plaintiff shall be responsible for service by waiver or of the summons and complaint. Signed by Magistrate Judge David K Duncan on 05/09/2017.

Case 2:17-cv-01411-DKD Document 7 Filed 05/09/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Margarita Leon de Nunez, No. CV-17-1411-PHX-DKD 10 Plaintiff, 11 v. ORDER 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 The Court has reviewed Plaintiff’s Application to Proceed in District Court 17 Without Prepaying Fees or Costs (Doc. 2). 18 IT IS ORDERED GRANTING the Application to Proceed in District Court 19 Without Prepaying Fees or Costs (Doc. 2). Plaintiff shall be responsible for service by 20 waiver or of the summons and complaint. 21 Dated this 9th day of May, 2017. 22 23 24 25 26 27 28

Order that Margarita Leon De Nunez show cause for failure to comply with LRCiv 3.7(b) before Judge G Murray Snow. Show Cause Hearing set for 6/19/2017 at 04:30 PM before Judge G Murray Snow.

Case 2:17-cv-01411-DKD Document 8 Filed 05/23/17 Page 1 of 2 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Margarita Leon De Nunez,) 9) Plaintiff(s),) 10)) CV-17-1411-PHX-DKD 11 v.)) 12 Commissioner of Social Security Administration,) ORDER TO) SHOW CAUSE 13 Defendant(s).)) 14 This action has been assigned to a United States Magistrate Judge pursuant to Local Rule 3.7(b) 15 of the United States District Court for the District of Arizona. Each party is required to execute and file 16 within fourteen days of its appearance either a written consent to the exercise of authority by the 17 magistrate judge under 28 U.S.C. § 636(c), or a written election to have the action reassigned to a 18 district judge. Plaintiff Margarita Leon De Nunez appeared more than fourteen days ago, but has 19 not yet filed the required election form. 20 IT IS ORDERED that if Plaintiff Margarita Leon De Nunez fails to file the appropriate 21 election form by 5:00 p.m. on Wednesday, June 7, 2017 Plaintiff Margarita Leon De 22 Nunez shall appear1 before Judge G. Murray Snow of the Phoenix Division of this Court in 23 Courtroom No. 602, 6th Floor, at 4:30 p.m. on Monday, June 19, 2017 and show good cause for 24 the failure to comply with Local Rule 3.7(b). The hearing before the Judge will be automatically 25 vacated and the party need not appear if the party files a completed election form by the 5:00 p.m. 26 27 *Incarcerated parties shall appear telephonically and shall make 28 arrangements for such appearance in advance of the hearing. 1 Case 2:17-cv-01411-DKD Document 8 Filed 05/23/17 Page 2 of 2 1 deadline set forth above. An additional copy of the election form is included with this Order. 2 IT IS FURTHER ORDERED that the assignment of this action to the Magistrate Judge 3 remains in effect for all purposes pending completion of the election process. Involvement of the 4 Liaison Judge in this matter is limited to this show cause hearing, unless the magistrate judge 5 assignment is ordered withdrawn pursuant to 28 U. S. C. § 636(b)(1)(A), at which time the case would 6 be randomly reassigned to a district judge. 7 DATED this 23rd day of May, 2017. 8 BRIAN D. KARTH 9 District Court Executive/Clerk of Court 10 By: s/M. Pruneau 11 Deputy Clerk 12 13 14 (1/25/05) 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

Instructions

Case 2:17-cv-01411-DKD Document 8-1 Filed 05/23/17 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA CONSENT TO EXERCISE OF JURISDICTION BY UNITED STATES MAGISTRATE JUDGE INSTRUCTIONS TO ALL PARTIES ACTION REQUIRED WITHIN 14 DAYS Pursuant to Local Rule of Civil Procedure 3.7(b), all civil cases will be randomly assigned to a U.S. District Court Judge or to a U.S. Magistrate Judge. When a case is filed and assigned to a U.S. Magistrate Judge, consent forms, for all parties, are stamped with a case number and given to the individual who is filing the case. On these forms, consent may be given to the jurisdiction of the magistrate judge by signing the consent section of the form. If all parties consent, the case will remain with the magistrate judge, pursuant to 28:636(c)(1). These cases are assigned to a magistrate judge for all purposes, including trial and final entry of judgment. Any appeal from a judgment entered by the Magistrate Judge may be taken directly to the United States Court of Appeals for the Ninth Circuit in the same manner as an appeal from any other judgment of a district court. Consent to proceed before a Magistrate Judge is voluntary and no adverse consequences of any kind will be felt by any party or attorney who objects to assignment of a case to the Magistrate Judge. The party filing the case is responsible for serving all parties with the consent forms. If any party chooses the district judge option, the case will be randomly reassigned to a U.S. District Court Judge. To elect to have the case heard before a U.S. District Court Judge, the District Judge Option section of the form must be completed. Each party must file the completed consent form and certificate of service with the court no later than 14 days after entry of appearance or the filing of the Notice of Removal. This document should be filed in paper form only and a copy must be served by mail or hand delivery upon all parties of record in the case.

Consent Form

Case 2:17-cv-01411-DKD Document 8-2 Filed 05/23/17 Page 1 of 1 1 (FOR USE IN CIVIL CASES WITH MAG JUDGE AS PRESIDER) 2 RETURN THIS FORM TO THE CLERK’S OFFICE NOT LATER THAN FOURTEEN (14) DAYS FROM YOUR APPEARANCE IN THIS CASE. 3 Do NOT electronically file this document! 4 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 5) 6) Plaintiff,) 7) Case No. vs.) 8) Defendant.) 9) 10 CONSENT TO EXERCISE OF JURISDICTION BY UNITED STATES MAGISTRATE JUDGE 11 In accordance with provisions of Title 28, U.S.C. Sec. 636(c)(1), the undersigned (party)(counsel of record for 12) in the above-captioned civil matter hereby voluntarily consents to have a United 13 States Magistrate Judge conduct any and all further proceedings in the case, including trial and entry of a final judgment, with direct review by the Ninth Circuit Court of Appeals if an appeal is filed. 14 15 Date: Signature 16 17 Print Name 18 DISTRICT JUDGE OPTION 19 Pursuant to Title 28, U.S.C. Sec. 636(c)(2) the undersigned (party)(counsel of record for) 20 in the above captioned civil matter acknowledges the availability of a United States Magistrate Judge but elects to have this case 21 randomly assigned to a United States District Judge. 22 Date: Signature 23 24 Print Name 25 CERTIFICATE OF SERVICE 26 I hereby certify that a true copy of the foregoing Consent was served (by mail) (by hand delivery) on all parties of record 27 in this case, this day of, 20. 28 Signature

SERVICE EXECUTED filed by Margarita Leon De Nunez: Return of Service re: Summons, Complaint and Scheduling Order upon US Attorney's Office, Office of General Counsel, Attorney General on 5/30/2017.

Case 2:17-cv-01411-DKD Document 10 Filed 06/01/17 Page 2 of 6 Date: June 1, 2017 Michelle Callahan: The following is in response to your June 1, 2017 request for delivery information on your Certified Mail™/RRE item number 9314869904300034397521. The delivery record shows that this item was delivered on May 30, 2017 at 4:20 pm 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 representative. Sincerely, United States Postal Service Case 2:17-cv-01411-DKD Document 10 Filed 06/01/17 Page 4 of 6 Date: June 1, 2017 Michelle Callahan: The following is in response to your June 1, 2017 request for delivery information on your Certified Mail™/RRE item number 9314869904300034397972. The delivery record shows that this item was delivered on May 30, 2017 at 1:09 pm 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 representative. Sincerely, United States Postal Service Case 2:17-cv-01411-DKD Document 10 Filed 06/01/17 Page 6 of 6 Date: June 1, 2017 Michelle Callahan: The following is in response to your June 1, 2017 request for delivery information on your Certified Mail™/RRE item number 9314869904300034398054. The delivery record shows that this item was delivered on May 30, 2017 at 4:20 am in WASHINGTON, DC 20530. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local Post Office or postal representative. Sincerely, United States Postal Service

NOTICE OF ATTORNEY APPEARANCE: Alexis L. Toma appearing for Commissioner of Social Security Administration.

Case 2:17-cv-01411-DKD Document 11 Filed 07/08/17 Page 1 of 3 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Alexis L. Toma 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. WA42955 8 Fax: (206) 615-2531 alexis.toma@ssa.gov 9 Telephone: (206) 615-2950 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Margarita Leon De Nunez, No. CV-17-01411-PHX-DKD 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 2:17-cv-01411-DKD Document 11 Filed 07/08/17 Page 2 of 3 1 Alexis L. Toma 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. WA42955 Fax: (206) 615-2531 6 alexis.toma@ssa.gov Telephone: (206) 615-2950 7 8 DATED this 8th day of July 2017. 9 Respectfully submitted, 10 11 ELIZABETH A. STRANGE Acting United States Attorney 12 District of Arizona 13 s/Alexis L. Toma 14 ALEXIS L. TOMA 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 2:17-cv-01411-DKD Document 11 Filed 07/08/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Notice of Appearance was filed with the Clerk 3 of the Court on July 8, 2017, using the CM/ECF system which will send notification of 4 5 such filing to the following: Howard D. Olinsky. 6 s/Barbara Eadie 7 BARBARA EADIE 8 Paralegal Specialist Office of the General Counsel 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Magistrate Election Form Deadline set as to Commissioner of Social Security Administration.

Case 2:17-cv-01411-DKD Document 12 Filed 07/08/17 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA CONSENT TO EXERCISE OF JURISDICTION BY UNITED STATES MAGISTRATE JUDGE INSTRUCTIONS TO ALL PARTIES ACTION REQUIRED WITHIN 14 DAYS Pursuant to Local Rule of Civil Procedure 3.7(b), all civil cases will be randomly assigned to a U.S. District Court Judge or to a U.S. Magistrate Judge. When a case is filed and assigned to a U.S. Magistrate Judge, consent forms, for all parties, are stamped with a case number and given to the individual who is filing the case. On these forms, consent may be given to the jurisdiction of the magistrate judge by signing the consent section of the form. If all parties consent, the case will remain with the magistrate judge, pursuant to 28:636(c)(1). These cases are assigned to a magistrate judge for all purposes, including trial and final entry of judgment. Any appeal from a judgment entered by the Magistrate Judge may be taken directly to the United States Court of Appeals for the Ninth Circuit in the same manner as an appeal from any other judgment of a district court. Consent to proceed before a Magistrate Judge is voluntary and no adverse consequences of any kind will be felt by any party or attorney who objects to assignment of a case to the Magistrate Judge. The party filing the case is responsible for serving all parties with the consent forms. If any party chooses the district judge option, the case will be randomly reassigned to a U.S. District Court Judge. To elect to have the case heard before a U.S. District Court Judge, the District Judge Option section of the form must be completed. Each party must file the completed consent form and certificate of service with the court no later than 14 days after entry of appearance or the filing of the Notice of Removal. This document should be filed in paper form only and a copy must be served by mail or hand delivery upon all parties of record in the case.

Consent Form

Case 2:17-cv-01411-DKD Document 12-1 Filed 07/08/17 Page 1 of 1 1 (FOR USE IN CIVIL CASES WITH MAG JUDGE AS PRESIDER) 2 RETURN THIS FORM TO THE CLERK’S OFFICE NOT LATER THAN FOURTEEN (14) DAYS FROM YOUR APPEARANCE IN THIS CASE. 3 Do NOT electronically file this document! 4 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 5) 6) Plaintiff,) 7) Case No. vs.) 8) Defendant.) 9) 10 CONSENT TO EXERCISE OF JURISDICTION BY UNITED STATES MAGISTRATE JUDGE 11 In accordance with provisions of Title 28, U.S.C. Sec. 636(c)(1), the undersigned (party)(counsel of record for 12) in the above-captioned civil matter hereby voluntarily consents to have a United 13 States Magistrate Judge conduct any and all further proceedings in the case, including trial and entry of a final judgment, with direct review by the Ninth Circuit Court of Appeals if an appeal is filed. 14 15 Date: Signature 16 17 Print Name 18 DISTRICT JUDGE OPTION 19 Pursuant to Title 28, U.S.C. Sec. 636(c)(2) the undersigned (party)(counsel of record for) 20 in the above captioned civil matter acknowledges the availability of a United States Magistrate Judge but elects to have this case 21 randomly assigned to a United States District Judge. 22 Date: Signature 23 24 Print Name 25 CERTIFICATE OF SERVICE 26 I hereby certify that a true copy of the foregoing Consent was served (by mail) (by hand delivery) on all parties of record 27 in this case, this day of, 20. 28 Signature

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

Case 2:17-cv-01411-DKD Document 15 Filed 07/31/17 Page 1 of 3 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Alexis L. Toma 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. WA42955 8 Fax: (206) 615-2531 alexis.toma@ssa.gov 9 Telephone: (206) 615-2950 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Margarita Leon de Nunez, No. CV-17-1411-PHX-DKD 14 15 Plaintiff, 16 ANSWER vs. 17 Commissioner of Social Security 18 Administration, 19 Defendant. 20 21 Defendant, in answer to Plaintiff’s complaint, admits, denies and alleges as 22 follows: 23 1. Defendant admits the allegations in Paragraphs 1, 2, and 3. 24 25 2. With respect to Paragraph 4, Defendant lacks knowledge or information sufficient 26 to form a belief as to the truth of Plaintiff’s residence and therefore denies the 27 28 Case 2:17-cv-01411-DKD Document 15 Filed 07/31/17 Page 2 of 3 1 same. Defendant neither admits nor denies the accuracy of the last four digits of 2 Plaintiff’s social security number. 3 3. Defendant admits the allegations in Paragraph 5. 4 5 4. Paragraphs 6, 7, and 8 call for legal conclusions to which no response is required. 6 To the extent the Court requires a response, Defendant denies the allegations. 7 5. The remainder of the complaint is a prayer for relief to which no response is 8 necessary. To the extent the Court requires a response, Defendant denies the 9 10 allegations and states that Plaintiff is not entitled to judgment or to the relief 11 sought. 12 6. With respect to Plaintiff’s request for attorney fees under the Equal Access to 13 14 Justice Act, should Plaintiff prevail and file an application for fees against the 15 United States in accordance with the requirements of 28 U.S.C. § 2412, enacted as 16 part of the Equal Access to Justice Act, the Commissioner reserves the right to 17 18 oppose any award under this statute. 19 7. Defendant denies all allegations of the Complaint not specifically admitted. 20 8. In accordance with 42 U.S.C. § 405(g), Defendant files as part of the answer a 21 certified copy of the transcript of the record including the evidence upon which 22 23 Defendant based the challenged decision. 24 WHEREFORE, Defendant prays for judgment dismissing the complaint, with 25 costs, and for judgment in accordance with 42 U.S.C. § 405(g), affirming Defendant’s 26 27 decision. 28///2 Case 2:17-cv-01411-DKD Document 15 Filed 07/31/17 Page 3 of 3 1 DATED this 31st day of July 2017. 2 Respectfully submitted, 3 ELIZABETH A. STRANGE 4 Acting United States Attorney 5 District of Arizona 6 s/Alexis L. Toma ALEXIS L. TOMA 7 Special Assistant United States Attorney 8 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 19 CERTIFICATE OF SERVICE 20 I hereby certify that the foregoing Answer was filed with the Clerk of the 21 Court on July 31, 2017, using the CM/ECF system, which will send notification of 22 23 such filing to the following: Howard Olinsky. 24 25 s/Megan Moore 26 MEGAN MOORE Paralegal Specialist 27 Office of the General Counsel 28 3

NOTICE of Filing Certified Copy of Administrative Transcript re: [15] Answer to Complaint filed by Commissioner of Social Security Administration.

Case 2:17-cv-01411-DKD Document 16 Filed 07/31/17 Page 1 of 2 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Alexis L. Toma 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. WA42955 8 Fax: (206) 615-2531 alexis.toma@ssa.gov 9 Telephone: (206) 615-2950 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Margarita Leon de Nunez, No. CV-17-1411-PHX-DKD 14 15 Plaintiff, 16 NOTICE OF FILING CERTIFIED vs. ADMINISTRATIVE/TRANSCRIPT 17 OF RECORD Commissioner of Social Security 18 Administration, 19 Defendant. 20 21 PLEASE TAKE NOTICE the Acting Commissioner of Social Security, by and 22 through Alexis L. Toma, Special Assistant United States Attorney for the District of 23 Arizona, files herein, in accordance with section 205(g) of the Social Security Act, 42 24 25 U.S.C. § 405(g), as part of the answer a certified electronic copy of the transcript of the 26 record, including the evidence upon which the findings and decision complained of are 27 based. In addition, a paper copy was delivered to the Court. 28 Case 2:17-cv-01411-DKD Document 16 Filed 07/31/17 Page 2 of 2 1 DATED this 31st day of July 2017. 2 3 Respectfully submitted, 4 ELIZABETH A. STRANGE 5 Acting United States Attorney District of Arizona 6 s/Alexis L. Toma 7 ALEXIS L. TOMA 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 July 22 31, 2017, using the CM/ECF system, which will send notification of such filing to 23 the following: Howard Olinsky. 24 25 26 s/Megan Moore MEGAN MOORE 27 Paralegal Specialist 28 Office of the General Counsel 2

Certification Page

Case 2: 17-cv-01411-DKD Document 16-1 Filed 07/31/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PHOENIX DIVISION MARGARITA LEON DE NUNEZ, Plaintiff VS.) CIVIL ACTION NO. 17CVO1411 NANCY A. BERRY HILL ACTING COMMISSIONER OF SOCIAL SECURITY Defendant CERTIFICATION The undersigned, as Chief, Court Case Preparation and Review Branch 1, Office of Appellate Operations, Office of Disability Adjudication and Review, Social Security Administration, hereby certifies that the documents annexed hereto constitute a full and accurate transcript of the entire record of proceedings s relating to this case. NANCY CHUNG Date: June 26, 2017 * * * Certified Administrative Records (CAR) are not compatible with Optical Character Recognition (OCR), therefore the Agency cannot provide an OCR searchable CAR.

Court Transcript Index

Case 2:17-cv-01411-DKD Document 16-2 Filed 07/31/17 Page 1 of 4 Court Transcript Index Civil Action Number: 2:17-CV-01411 Claimant: Margarita Leon De Nunez Account Number: 518-45-7548 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 03/06/2017 1-6 6 AC Correspondence (ACCORR), dated 12/10/2015 7-13 7 Representative Fee Agreement (FEEAGRMT), dated 10/25/2015 14-16 3 Request for Review of Hearing Decision/Order (HA 520), dated 17-18 2 10/07/2015 ALJ Hearing Decision (ALJDEC), dated 09/18/2015 19-41 23 Transfer Request for Hearing (TRNREQHRG), dated 05/10/2015 42-48 7 Outgoing ODAR Correspondence (OUTODARC), dated 10/03/2014 49-51 3 Request for Hearing Acknowledgement Letter (HRGACK), dated 52-58 7 03/24/2014 Transcript of Oral Hearing (TRANHR), dated 08/26/2015 59-95 37 Exhibits Exhibit No. of No. Description Page No. Pages 1A Initial Disability Determination by State Agency, Title II, dated 96 1 04/22/2013 2A Disability Determination Explanation-T2 No RFC, PRT, DDS 97-105 9 Dr., dated 04/22/2013 3A Reconsideration Disability Determination by State Agency, 106 1 Title II, dated 12/05/2013 4A Disability Determination Explanation-T2 RFC, PRT, DDS Dr., 107-120 14 dated 12/05/2013 1B T2 Notice of Disapproved Claim, dated 04/22/2013 121-124 4 2B Request for Reconsideration, dated 05/09/2013 125 1 3B T2 Disability Reconsideration Notice, dated 12/05/2013 126-128 3 4B Representative Fee Agreement-Brad Myler, dated 129 1 02/05/2014 5B Appointment of Representative-Brad Myler, dated 130 1 02/05/2014 6B Request for Hearing by ALJ, dated 02/06/2014 131 1 7B Request for Postponement, dated 06/16/2015 132 1 8B Hearing Notice, dated 06/18/2015 133-160 28 9B Response to Request for Postponement: Denied by ALJ, 161 1 dated 06/24/2015 10B Hearing Notice, dated 07/01/2015 162-187 26 11B Objection to Video Hearing, dated 07/02/2015 188 1 12B Acknowledge Notice of Hearing-Clmt, dated 07/16/2015 189 1 13B Objection to Video Hearing-Request to Show Cause, dated 190-194 5 07/17/2015 DATE: June 29, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 2:17-cv-01411-DKD Document 16-2 Filed 07/31/17 Page 2 of 4 Court Transcript Index Civil Action Number: 2:17-CV-01411 Claimant: Margarita Leon De Nunez Account Number: 518-45-7548 Exhibits Exhibit No. of No. Description Page No. Pages 14B Representative Fee Agreement-Brad Myler, dated 195 1 08/04/2015 15B Appointment of Representative-Brad Myler, dated 196 1 07/07/2015 16B Notice Of Hearing Reminder, dated 08/12/2015 197-202 6 1D Application for Disability Insurance Benefits, dated 203-205 3 02/25/2014 2D Application for Supplemental Security Income Benefits, dated 206-211 6 02/28/2014 3D New Hire, Quarter Wage, Unemployment Query (NDNH), 212-213 2 dated 12/02/2014 4D Certified Earnings Records, dated 12/02/2014 214-215 2 5D Detailed Earnings Query, dated 12/02/2014 216-220 5 6D Summary Earnings Query, dated 12/02/2014 221 1 7D New Hire, Quarter Wage, Unemployment Query (NDNH), 222 1 dated 07/27/2015 8D Summary Earnings Query, dated 07/30/2015 223 1 9D Wage Information, dated 11/04/2011 224-226 3 1E Disability Report-Field Office, dated 12/13/2012, from Field 227-228 2 Office 2E Work History Report, dated 12/27/2012 229-239 11 3E Disability Report-Adult, dated 12/27/2012 240-251 12 4E 3rd Party Function Report-Adult, dated 01/12/2013, from 252-259 8 Mother In Law 5E Work History Report, dated 01/18/2013 260-265 6 6E Function Report-Adult, dated 04/18/2013, from Claimant 266-272 7 7E Disability Report-Field Office, dated 05/09/2013, from Field 273-274 2 Office 8E Disability Report-Appeals, dated 05/09/2013 275-279 5 9E Function Report-Adult, dated 08/26/2013, from Claimant 280-288 9 10E Disability Report-Appeals, dated 02/11/2014 289-295 7 11E Disability Report-Field Office, dated 03/04/2014, from Field 296-297 2 Office 12E Exhibit List to Rep PH2E, dated 12/02/2014 298-308 11 13E Recent Medical Treatment, dated 01/09/2015 309-310 2 14E Medications, dated 01/19/2015, from Rep 311 1 15E Work Background, dated 01/19/2015, from Rep 312 1 16E Representative Correspondence-Attempts to obtain medical 313-314 2 records, dated 08/20/2015 to 08/20/2015 DATE: June 29, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 2:17-cv-01411-DKD Document 16-2 Filed 07/31/17 Page 3 of 4 Court Transcript Index Civil Action Number: 2:17-CV-01411 Claimant: Margarita Leon De Nunez Account Number: 518-45-7548 Exhibits Exhibit No. of No. Description Page No. Pages 17E Statement of Claimant or Other Person, dated 08/26/2015 to 315-318 4 08/31/2015 18E Representative Brief, dated 10/08/2015, from Howard D. 319-321 3 Olinsky 1F Radiology Report, dated 04/25/2011, from ST. LUKES 322-323 2 BOISE RADIOLOGY GROUP 2F Radiology Report, dated 09/26/2011, from GEM STATE 324-326 3 RADIOLOGY 3F Office Treatment Records, dated 05/10/2011 to 12/08/2011, 327-333 7 from NEUROSCIENCE ASSOCIATES 4F Physical/Occupational Therapy Records, dated 01/16/2012 to 334-345 12 02/08/2012, from NORTHWEST PHYSICAL MEDICINE&REHABILITATION 5F Radiology Report, dated 09/17/2012, from SCOTTSDALE 346-347 2 MEDICAL IMAGING 6F Office Treatment Records, dated 09/24/2012 to 11/15/2012, 348-365 18 from DESERT VALLEY GASTROENTEROLOGY 7F Office Treatment Records, dated 09/11/2012 to 01/07/2013, 366-383 18 from BANNER SEVILLE FAMILY PHYSICIANS 8F Medical Source-No MER Available, dated 01/08/2013, from 384-387 4 ARIZONA PAIN&SPINE INSTITUTE-MESA 9F Medical Source-No MER Available, dated 01/09/2013, from 388 1 IDAHO PAIN CENTER 10F Medical Source-No MER Available, dated 01/24/2013, from 389-394 6 SAINT ALPHONSUS REGIONAL MEDICAL CENTER 11F Radiology Report, dated 05/09/2013, from AZ-TECH 395-396 2 RADIOLOGY 12F Office Treatment Records, dated 05/02/2013 to 05/10/2013, 397-418 22 from ARIZONA PAIN AND SPINE INSTITUTE 13F Emergency Department Records, dated 01/24/2013 to 419-455 37 07/26/2013, from BANNER MEDICAL GATEWAY CENTER 14F Office Treatment Records, dated 06/26/2013 to 08/02/2013, 456-463 8 from ARIZONA PAIN AND SPINE INSTITUTE 15F Office Treatment Records, dated 08/08/2013, from BANNER 464-465 2 HEALTH 16F Office Treatment Records, dated 08/15/2013, from 466-468 3 SOUTHWEST ENDOSCOPY AND SURGICENTER, LLC 17F Physical/Occupational Therapy Records, dated 10/18/2012 to 469-515 47 08/19/2013, from AZ PAIN&SPINE INSTITUTE-MESA 18F Office Treatment Records, dated 10/15/2012 to 08/27/2013, 516-555 40 from AZ PAIN&SPINE INSTITUTE-MESA 19F CE Psychology, dated 11/04/2013, from DESOTO,MARTA, 556-562 7 PH.D. DATE: June 29, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 2:17-cv-01411-DKD Document 16-2 Filed 07/31/17 Page 4 of 4 Court Transcript Index Civil Action Number: 2:17-CV-01411 Claimant: Margarita Leon De Nunez Account Number: 518-45-7548 Exhibits Exhibit No. of No. Description Page No. Pages 20F CE Physical Medicine, dated 11/07/2013, from ANGEL R 563-569 7 GOMEZ, M.D. 21F Physical/Occupational Therapy Records, dated 08/05/2013 to 570-585 16 11/07/2013, from ARIZONA PAIN AND SPINE INSTITUTE 22F Office Treatment Records, dated 05/06/2013 to 03/28/2014, 586-596 11 from DESERT VALLEY GASTROENTEROLOGY 23F Office Treatment Records, dated 03/24/2014 to 05/21/2014, 597-610 14 from ARIZONA PAIN AND SPINE INSTITUTE 24F Office Treatment Records, dated 08/05/2013 to 06/05/2014, 611-642 32 from DESERT VALLEY GASTROENTEROLOGY 25F Radiology Report, dated 09/18/2014, from MARQUIS 643-645 3 DIAGNOSTIC IMAGING 26F Office Treatment Records, dated 07/14/2014 to 09/30/2014, 646-664 19 from BANNER HEALTH 27F Physical RFC Assessment, dated 02/18/2014, from Cheng, 665-668 4 MD, Jason 28F Office Treatment Records, dated 09/24/2012 to 03/24/2014, 669-744 76 from Arizona Spine and Pain Institute 29F Physical RFC Assessment, dated 05/30/2014, from Cheng, 745-748 4 MD, Jason 30F Office Treatment Records, dated 07/08/2014 to 08/05/2014, 749-767 19 from Lauren K Wilcox 31F Hospital Records, dated 04/28/2011 to 04/30/2011, from St 768-794 27 alphonsus Regional Medical Center 32F Progress Notes, dated 07/23/2012, from Saltzer Medical 795-798 4 Group 33F Office Treatment Records, dated 10/10/2012 to 08/15/2013, 799-809 11 from Southwest Endoscopy and Surgicenter 34F Office Treatment Records, dated 11/12/2014 to 11/12/2014, 810-813 4 from Marquis Diagnostic Imaging 35F Office Treatment Records, dated 09/09/2013 to 01/21/2015, 814-870 57 from Arizona Pain and Spine Institute 36F Hospital Records, dated 09/03/2010 to 03/18/2015, from St 871-956 86 Lukes Medical Center 37F Hospital Records, dated 12/09/2014, from Southwest 957-958 2 Endoscopy and Surgicenter 38F Laboratory Test Report, dated 10/26/2012 to 12/15/2014, 959-960 2 from LabCorp 39F Office Treatment Records, dated 09/29/2014 to 01/05/2015, 961-1002 42 from Desert Valley Gastroenterolgy 40F Medical Records, dated 01/24/2013, from Banner Gateway 1003-1008 6 Medical Center DATE: June 29, 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 2:17-cv-01411-DKD Document 16-3 Filed 07/31/17 Page 1 of 96 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable Civil Action Number: 2:17-CV-01411 Claimant: Margarita Leon De Nunez Account Number: 518-45-7548 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 03/06/2017 1-6 6 AC Correspondence (ACCORR), dated 12/10/2015 7-13 7 Representative Fee Agreement (FEEAGRMT), dated 10/25/2015 14-16 3 Request for Review of Hearing Decision/Order (HA 520), dated 17-18 2 10/07/2015 ALJ Hearing Decision (ALJDEC), dated 09/18/2015 19-41 23 Transfer Request for Hearing (TRNREQHRG), dated 05/10/2015 42-48 7 Outgoing ODAR Correspondence (OUTODARC), dated 10/03/2014 49-51 3 Request for Hearing Acknowledgement Letter (HRGACK), dated 52-58 7 03/24/2014 Transcript of Oral Hearing (TRANHR), dated 08/26/2015 59-95 37 DATE: June 29, 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 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

Payment Documents and Decisions

Case 2:17-cv-01411-DKD Document 16-4 Filed 07/31/17 Page 1 of 26 Payment Documents and Decisions Civil Action Number: 2:17-CV-01411 Claimant: Margarita Leon De Nunez Account Number: 518-45-7548 Exhibits Exhibit No. of No. Description Page No. Pages 1A Initial Disability Determination by State Agency, Title II, dated 96 1 04/22/2013 2A Disability Determination Explanation-T2 No RFC, PRT, DDS 97-105 9 Dr., dated 04/22/2013 3A Reconsideration Disability Determination by State Agency, 106 1 Title II, dated 12/05/2013 4A Disability Determination Explanation-T2 RFC, PRT, DDS Dr., 107-120 14 dated 12/05/2013 DATE: June 29, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120

Jurisdictional Documents and Notices

Case 2:17-cv-01411-DKD Document 16-5 Filed 07/31/17 Page 1 of 83 Jurisdictional Documents and Notices Civil Action Number: 2:17-CV-01411 Claimant: Margarita Leon De Nunez Account Number: 518-45-7548 Exhibits Exhibit No. of No. Description Page No. Pages 1B T2 Notice of Disapproved Claim, dated 04/22/2013 121-124 4 2B Request for Reconsideration, dated 05/09/2013 125 1 3B T2 Disability Reconsideration Notice, dated 12/05/2013 126-128 3 4B Representative Fee Agreement-Brad Myler, dated 129 1 02/05/2014 5B Appointment of Representative-Brad Myler, dated 130 1 02/05/2014 6B Request for Hearing by ALJ, dated 02/06/2014 131 1 7B Request for Postponement, dated 06/16/2015 132 1 8B Hearing Notice, dated 06/18/2015 133-160 28 9B Response to Request for Postponement: Denied by ALJ, 161 1 dated 06/24/2015 10B Hearing Notice, dated 07/01/2015 162-187 26 11B Objection to Video Hearing, dated 07/02/2015 188 1 12B Acknowledge Notice of Hearing-Clmt, dated 07/16/2015 189 1 13B Objection to Video Hearing-Request to Show Cause, dated 190-194 5 07/17/2015 14B Representative Fee Agreement-Brad Myler, dated 195 1 08/04/2015 15B Appointment of Representative-Brad Myler, dated 196 1 07/07/2015 16B Notice Of Hearing Reminder, dated 08/12/2015 197-202 6 DATE: June 29, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202

Non Disability Related Development

Case 2:17-cv-01411-DKD Document 16-6 Filed 07/31/17 Page 1 of 25 Non Disability Related Development Civil Action Number: 2:17-CV-01411 Claimant: Margarita Leon De Nunez Account Number: 518-45-7548 Exhibits Exhibit No. of No. Description Page No. Pages 1D Application for Disability Insurance Benefits, dated 203-205 3 02/25/2014 2D Application for Supplemental Security Income Benefits, dated 206-211 6 02/28/2014 3D New Hire, Quarter Wage, Unemployment Query (NDNH), 212-213 2 dated 12/02/2014 4D Certified Earnings Records, dated 12/02/2014 214-215 2 5D Detailed Earnings Query, dated 12/02/2014 216-220 5 6D Summary Earnings Query, dated 12/02/2014 221 1 7D New Hire, Quarter Wage, Unemployment Query (NDNH), 222 1 dated 07/27/2015 8D Summary Earnings Query, dated 07/30/2015 223 1 9D Wage Information, dated 11/04/2011 224-226 3 DATE: June 29, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226

Disability Related Development

Case 2:17-cv-01411-DKD Document 16-7 Filed 07/31/17 Page 1 of 96 Disability Related Development Civil Action Number: 2:17-CV-01411 Claimant: Margarita Leon De Nunez Account Number: 518-45-7548 Exhibits Exhibit No. of No. Description Page No. Pages 1E Disability Report-Field Office, dated 12/13/2012, from Field 227-228 2 Office 2E Work History Report, dated 12/27/2012 229-239 11 3E Disability Report-Adult, dated 12/27/2012 240-251 12 4E 3rd Party Function Report-Adult, dated 01/12/2013, from 252-259 8 Mother In Law 5E Work History Report, dated 01/18/2013 260-265 6 6E Function Report-Adult, dated 04/18/2013, from Claimant 266-272 7 7E Disability Report-Field Office, dated 05/09/2013, from Field 273-274 2 Office 8E Disability Report-Appeals, dated 05/09/2013 275-279 5 9E Function Report-Adult, dated 08/26/2013, from Claimant 280-288 9 10E Disability Report-Appeals, dated 02/11/2014 289-295 7 11E Disability Report-Field Office, dated 03/04/2014, from Field 296-297 2 Office 12E Exhibit List to Rep PH2E, dated 12/02/2014 298-308 11 13E Recent Medical Treatment, dated 01/09/2015 309-310 2 14E Medications, dated 01/19/2015, from Rep 311 1 15E Work Background, dated 01/19/2015, from Rep 312 1 16E Representative Correspondence-Attempts to obtain medical 313-314 2 records, dated 08/20/2015 to 08/20/2015 17E Statement of Claimant or Other Person, dated 08/26/2015 to 315-318 4 08/31/2015 18E Representative Brief, dated 10/08/2015, from Howard D. 319-321 3 Olinsky DATE: June 29, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321

Medical Records Part 1

Case 2:17-cv-01411-DKD Document 16-8 Filed 07/31/17 Page 1 of 235 Medical Records Civil Action Number: 2:17-CV-01411 Claimant: Margarita Leon De Nunez Account Number: 518-45-7548 Exhibits Exhibit No. of No. Description Page No. Pages 1F Radiology Report, dated 04/25/2011, from ST. LUKES 322-323 2 BOISE RADIOLOGY GROUP 2F Radiology Report, dated 09/26/2011, from GEM STATE 324-326 3 RADIOLOGY 3F Office Treatment Records, dated 05/10/2011 to 12/08/2011, 327-333 7 from NEUROSCIENCE ASSOCIATES 4F Physical/Occupational Therapy Records, dated 01/16/2012 to 334-345 12 02/08/2012, from NORTHWEST PHYSICAL MEDICINE&REHABILITATION 5F Radiology Report, dated 09/17/2012, from SCOTTSDALE 346-347 2 MEDICAL IMAGING 6F Office Treatment Records, dated 09/24/2012 to 11/15/2012, 348-365 18 from DESERT VALLEY GASTROENTEROLOGY 7F Office Treatment Records, dated 09/11/2012 to 01/07/2013, 366-383 18 from BANNER SEVILLE FAMILY PHYSICIANS 8F Medical Source-No MER Available, dated 01/08/2013, from 384-387 4 ARIZONA PAIN&SPINE INSTITUTE-MESA 9F Medical Source-No MER Available, dated 01/09/2013, from 388 1 IDAHO PAIN CENTER 10F Medical Source-No MER Available, dated 01/24/2013, from 389-394 6 SAINT ALPHONSUS REGIONAL MEDICAL CENTER 11F Radiology Report, dated 05/09/2013, from AZ-TECH 395-396 2 RADIOLOGY 12F Office Treatment Records, dated 05/02/2013 to 05/10/2013, 397-418 22 from ARIZONA PAIN AND SPINE INSTITUTE 13F Emergency Department Records, dated 01/24/2013 to 419-455 37 07/26/2013, from BANNER MEDICAL GATEWAY CENTER 14F Office Treatment Records, dated 06/26/2013 to 08/02/2013, 456-463 8 from ARIZONA PAIN AND SPINE INSTITUTE 15F Office Treatment Records, dated 08/08/2013, from BANNER 464-465 2 HEALTH 16F Office Treatment Records, dated 08/15/2013, from 466-468 3 SOUTHWEST ENDOSCOPY AND SURGICENTER, LLC 17F Physical/Occupational Therapy Records, dated 10/18/2012 to 469-515 47 08/19/2013, from AZ PAIN&SPINE INSTITUTE-MESA 18F Office Treatment Records, dated 10/15/2012 to 08/27/2013, 516-555 40 from AZ PAIN&SPINE INSTITUTE-MESA DATE: June 29, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555

Medical Records Part 2

Case 2:17-cv-01411-DKD Document 16-9 Filed 07/31/17 Page 1 of 213 Medical Records Civil Action Number: 2:17-CV-01411 Claimant: Margarita Leon De Nunez Account Number: 518-45-7548 Exhibits Exhibit No. of No. Description Page No. Pages 19F CE Psychology, dated 11/04/2013, from DESOTO,MARTA, 556-562 7 PH.D. 20F CE Physical Medicine, dated 11/07/2013, from ANGEL R 563-569 7 GOMEZ, M.D. 21F Physical/Occupational Therapy Records, dated 08/05/2013 to 570-585 16 11/07/2013, from ARIZONA PAIN AND SPINE INSTITUTE 22F Office Treatment Records, dated 05/06/2013 to 03/28/2014, 586-596 11 from DESERT VALLEY GASTROENTEROLOGY 23F Office Treatment Records, dated 03/24/2014 to 05/21/2014, 597-610 14 from ARIZONA PAIN AND SPINE INSTITUTE 24F Office Treatment Records, dated 08/05/2013 to 06/05/2014, 611-642 32 from DESERT VALLEY GASTROENTEROLOGY 25F Radiology Report, dated 09/18/2014, from MARQUIS 643-645 3 DIAGNOSTIC IMAGING 26F Office Treatment Records, dated 07/14/2014 to 09/30/2014, 646-664 19 from BANNER HEALTH 27F Physical RFC Assessment, dated 02/18/2014, from Cheng, 665-668 4 MD, Jason 28F Office Treatment Records, dated 09/24/2012 to 03/24/2014, 669-744 76 from Arizona Spine and Pain Institute 29F Physical RFC Assessment, dated 05/30/2014, from Cheng, 745-748 4 MD, Jason 30F Office Treatment Records, dated 07/08/2014 to 08/05/2014, 749-767 19 from Lauren K Wilcox DATE: June 29, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 755 756 757 758 759 760 761 762 763 764 765 766 767

Medical Records Part 3

Case 2:17-cv-01411-DKD Document 16-10 Filed 07/31/17 Page 1 of 194 Medical Records Civil Action Number: 2:17-CV-01411 Claimant: Margarita Leon De Nunez Account Number: 518-45-7548 Exhibits Exhibit No. of No. Description Page No. Pages 31F Hospital Records, dated 04/28/2011 to 04/30/2011, from St 768-794 27 alphonsus Regional Medical Center 32F Progress Notes, dated 07/23/2012, from Saltzer Medical 795-798 4 Group 33F Office Treatment Records, dated 10/10/2012 to 08/15/2013, 799-809 11 from Southwest Endoscopy and Surgicenter 34F Office Treatment Records, dated 11/12/2014 to 11/12/2014, 810-813 4 from Marquis Diagnostic Imaging 35F Office Treatment Records, dated 09/09/2013 to 01/21/2015, 814-870 57 from Arizona Pain and Spine Institute 36F Hospital Records, dated 09/03/2010 to 03/18/2015, from St 871-956 86 Lukes Medical Center 37F Hospital Records, dated 12/09/2014, from Southwest 957-958 2 Endoscopy and Surgicenter 38F Laboratory Test Report, dated 10/26/2012 to 12/15/2014, 959-960 2 from LabCorp DATE: June 29, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 768 769 770 771 772 773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 788 789 790 791 792 793 794 795 796 797 798 799 800 801 802 803 804 805 806 807 808 809 810 811 812 813 814 815 816 817 818 819 820 821 822 823 824 825 826 827 828 829 830 831 832 833 834 835 836 837 838 839 840 841 842 843 844 845 846 847 848 849 850 851 852 853 854 855 856 857 858 859 860 861 862 863 864 865 866 867 868 869 870 871 872 873 874 875 876 877 878 879 880 881 882 883 884 885 886 887 888 889 890 891 892 893 894 895 896 897 898 899 900 901 902 903 904 905 906 907 908 909 910 911 912 913 914 915 916 917 918 919 920 921 922 923 924 925 926 927 928 929 930 931 932 933 934 935 936 937 938 939 940 941 942 943 944 945 946 947 948 949 950 951 952 953 954 955 956 957 958 959 960

Medical Records Part 4

Case 2:17-cv-01411-DKD Document 16-11 Filed 07/31/17 Page 1 of 49 Medical Records Civil Action Number: 2:17-CV-01411 Claimant: Margarita Leon De Nunez Account Number: 518-45-7548 Exhibits Exhibit No. of No. Description Page No. Pages 39F Office Treatment Records, dated 09/29/2014 to 01/05/2015, 961-1002 42 from Desert Valley Gastroenterolgy 40F Medical Records, dated 01/24/2013, from Banner Gateway 1003-1008 6 Medical Center DATE: June 29, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 961 962 963 964 965 966 967 968 969 970 971 972 973 974 975 976 977 978 979 980 981 982 983 984 985 986 987 988 989 990 991 992 993 994 995 996 997 998 999 1000 1001 1002 1003 1004 1005 1006 1007 1008

MOTION for Extension of Time to file Plaintiff's Opening Brief by Margarita Leon De Nunez.

Case 2:17-cv-01411-DKD Document 17 Filed 09/27/17 Page 1 of 2 1 Howard D. Olinsky 2 Olinsky Law Group 300 South State Street 3 Suite 420 4 Syracuse, NY 13202 N.Y. Bar No. 2044865 5 Telephone: (315) 701-5780 6 Facsimile: (315) 701-5781 holinsky@windisability.com 7 8 Attorney pro hac vice for Plaintiff 9 UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF ARIZONA 11 Margarita Leon de Nunez, 12 Plaintiff, 13 v. No. 2:17-CV-1411-DKD 14 Commissioner of Social Security, 15 Defendant. 16 __________________________________ 17 UNOPPOSED MOTION FOR EXTENSION OF TIME 18 (First Request) 19 Plaintiff, Margarita Leon de Nunez, through counsel, Howard D. Olinsky, Esq., 20 moves for extension of time of twenty-eight days, up to and including October 27, 2017, 21 22 to file her Opening Brief. The Opening brief is currently due Friday, September 29, 23 2017. 24 Counsel for Plaintiff requests this extension of time due to a confluence of 25 26 deadlines and the length of the record in this case, which is 1024 pages. Counsel expects 27 28 1 Case 2:17-cv-01411-DKD Document 17 Filed 09/27/17 Page 2 of 2 1 no further requests of this kind. Counsel’s office contacted the Defendant’s counsel, who 2 indicated the acting Commissioner does not object to this extension. 3 4 Respectfully submitted this 27th day of September, 2017 5 6 BY: s/Howard D. Olinsky 7 Howard D. Olinsky, Esq. 8 Attorney for Plaintiff, Pro Hac Vice 9 CERTIFICATE OF SERVICE 10 11 Service of this document was made to Sarah Moum, Esq., counsel for defendant 12 Acting Commissioner, by the CM/ECF system that generated a notice of electronic filing 13 to all registered users of the CM/ECF system. Service was accomplished as of the date 14 15 that is stamped on the filed document by the CMECF system.. 16 17/s/Howard D. Olinsky 18 Howard D. Olinsky, Esq. 19 20 21 22 23 24 25 26 27 28 2

Text of Proposed Order Proposed Order

Case 2:17-cv-01411-DKD Document 17-1 Filed 09/27/17 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Margarita Leon de Nunez, Plaintiff, v. No. 2:17-CV-1411-DKD Commissioner of Social Security, Defendant. ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE OPENING BRIEF This unopposed Motion for first extension of time seeks an extension of time from September 29, 2017 to October 27, 2017 for Plaintiff to file her Opening Brief in this Social Security disability appeal. Counsel indicates that the motion is unopposed by defendant Acting Commissioner. Having considered the unopposed Motion and in consideration of the Counsel’s indication of multiple coinciding filing deadlines and the size of the transcript, this Court concludes that the unopposed motion for first extension of time should be granted. It is hereby ORDERED that the unopposed Motion for first extension of time is GRANTED, and the extension of twenty-eight days is allowed such that the Opening Brief shall be filed on or before October 27, 2017. DATED this _______ day of _____________, 20__ __________________________________________ Honorable David K. Duncan United States Magistrate Judge

ORDER granting [17] Motion for Extension of Time. Plaintiff's Opening Brief is due on or before October 27, 2017. Signed by Magistrate Judge David K Duncan on 09/28/2017.

Case 2:17-cv-01411-DKD Document 18 Filed 09/28/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Margarita Leon De Nunez, No. CV-17-1411-PHX-DKD 10 Plaintiff, 11 v. ORDER 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff’s Unopposed Motion for Extension of Time 16 (Doc. 17), and upon good cause appearing, 17 IT IS ORDERED granting Plaintiff’s Unopposed Motion for Extension of Time 18 (Doc. 17). Plaintiff’s Opening Brief is due on or before October 27, 2017. 19 Dated this 28th day of September, 2017. 20 21 22 23 24 25 26 27 28

OPENING BRIEF by Margarita Leon De Nunez.

Case 2:17-cv-01411-DKD Document 19 Filed 10/27/17 Page 1 of 25 Howard D. Olinsky Attorney for Plaintiff Admitted Pro Hac Vice One Park Place 300 South State St., Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Facsimile: (315) 701-5781 Email: holinsky@windisability.com IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Margarita Leon De Nunez No. CV-17-01411-DKD Plaintiff, OPENING BRIEF OF PLAINTIFF vs. [Dist. Ariz. Local Rule Civil 16.1(a)] Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant STATEMENT OF THE ISSUES 1. The ALJ’s RFC determination is not supported by substantial evidence because it does not include limitations to account for all symptoms related to Plaintiff’s severe impairment and he failed to properly consider Dr. Cheng’s opinion under the treating physician rule. STATEMENT OF THE CASE On December 12, 2012, Margarita Leon De Nunez ("Plaintiff") filed applications for Disability Insurance Benefits and Supplemental Security Income, alleging disability since April 15, 2011 due to disc replacement and bone fusion, depression, leg pain, lower back 1 Case 2:17-cv-01411-DKD Document 19 Filed 10/27/17 Page 2 of 25 pain, stomach hernia, and pain, weakness, and numbness in her arm. Administrative Transcript ("T") at 97, 107. Plaintiff’s claim was initially denied on April 22, 2013, (T 96) and on reconsideration on December 5, 2013. T 117-19. After a hearing held on August 26, 2015 (T 59-95), Administrative Law Judge ("ALJ") Ben Willner issued a decision denying Plaintiff’s application on September 18, 2015. T 22-34. In the decision, the ALJ found that Plaintiff meets the insured status requirements through December 31, 2018, and has not engaged in substantial gainful activity since April 15, 2011, the alleged onset date. T 24. He found Plaintiff suffered from the severe impairment of degenerative disc disease, status post spinal fusion. T 25. The ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments. T 26-27. The ALJ determined that Plaintiff has the residual functional capacity ("RFC") to perform "light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). However, she can only occasionally climb and frequently balance, stoop, kneel, crouch, and crawl." T 27. The ALJ found that Plaintiff could not perform any past relevant work, but she could perform the jobs of cashier, laundry worker, and office helper, thus finding Plaintiff not disabled. T 32-34. On March 16, 2017, the Appeals Council denied review, which means the final agency decision is the ALJ’s unfavorable decision. T 1-6. This action followed. This Court has jurisdiction of this action. 42 U.S.C. §§ 405(g), 1383(c)(3). STATEMENT OF FACTS Plaintiff was 40 years old on the alleged onset date, and 44 years old on the date of the ALJ’s decision. T 34, 97, 107. Plaintiff completed eleventh grade and reported past 2 Case 2:17-cv-01411-DKD Document 19 Filed 10/27/17 Page 3 of 25 work as a line operator, machine operator, and packager. T 242-43. A. Medical Evidence1 On April 19, 2011, Plaintiff presented to Saint Luke’s Meridian Medical Center ("St. Luke’s") complaining of pain in the left side of her upper back. T 935. She reported occasional tingling in the left upper extremity. T 936. She appeared in mild distress, and was tender to palpation in the paraspinous muslces in the lower cervical and upper thoracic spines. T 936-37. An X-ray showed mild degenerative disc disease in the cervical spine. T 938. Plaintiff was given a Toradol injection and discharged home with prescriptions for Norco and Flexeril. T 937, 941. On April 22, Plaintiff returned, complaining of neck pain radiating down her left arm, which limited range of motion. T 921. She reported that medications had provided no relief and her pain was up to a ten out of ten in severity. T 922. Plaintiff had moderate tenderness to palpation in the left trapezius and rhomboid muscles. T 923. The exact etiology of her pain was uncertain, so she was treated for her symptoms and discharged home. T 931. She was scheduled for an outpatient MRI. T 931. Plaintiff returned to St. Luke’s on April 25, 2011, complaining that the pain was so severe, she could not wait for her MRI scheduled later that day. T 906. She had mildly diminished range of motion in her neck, diffuse tenderness over her left trapezius muscles, diffuse tenderness over the ventral surface of her left forearm from elbow to wrist, and tingling in her left forearm and fingers. T 908. MRI showed disc bulges at 1 Plaintiff continuously complained of and was treated for abdominal pain and constipation, most likely caused by her chronic use of narcotics. However, Plaintiff did not allege any limitations caused by abdominal pain, so it will not be discussed here. 3 Case 2:17-cv-01411-DKD Document 19 Filed 10/27/17 Page 4 of 25 C4-C5 and C5-C6 abutting the anterior thecal sac and spinal cord. T 913. At C6-C7, there was a left paracentral disc herniation slightly compressing the spinal cord and causing moderate central stenosis, marked left sided neuroforaminal narrowing, and moderate right sided neuroforaminal narrowing. T 913-14. She was given IV Dilantin, with minimal relief. T 915. Dr. Little was contacted, and he requested Plaintiff be transferred to Saint Alphonsus Regional Medical Center ("St. Alphonsus") for further workup and evaluation. T 915. Kenneth M. Little, M.D., examined Plaintiff at St. Alphonsus. Plaintiff had diminished strength in the left deltoid, wrist extensor, and triceps, and diminished sensation to light touch. T 772. His impression was C7 radiculopathy and cervical myelopathy. T 772. He recommended decompression and fusion surgery. T 772. On April 26, 2011, Plaintiff underwent a C4-C7anterior microdecompression and interbody fusion with iliac bone graft and anterior cervical plate. T 777. The day after surgery, she reported continuing numbness, tingling, and weakness in the left upper extremity. T 774. On examination, grip strength was noted to be equal, but weak. T 775. Plaintiff was discharged on April 28, 2011. T 785. She still complained of weakness in her left upper extremity, and grip strength was noted to be weak, but adequate. T 785. In a follow up with Charisse L. Mack, P.A., on May 10, 2011, Plaintiff reported that her arm pain had resolved, but she still had numbness in her left hand. T 333. She was noted to be neurologically stable, and was prescribed Norco as needed for pain. T 333. On July 19, 2011, Plaintiff reported she was making some progress in physical therapy, but she complained of pain in the neck, left bicep, and left forearm, with persistent 4 Case 2:17-cv-01411-DKD Document 19 Filed 10/27/17 Page 5 of 25 tingling in the left hand. T 332. She complained of severe lower back pain with pain in the bilateral buttocks, hamstrings, and calves. T 332. Ms. Mack recommended physical therapy for her lumbar spine. T 332. On September 1, 2011, Plaintiff treated with Dr. Little, reporting recurrent pain in the neck and left arm. T 331. Plaintiff also complained of back pain with bilateral leg pain. T 331. Dr. Little recommended a CT myelogram of the cervical and lumbar spines. T 331. The CT myelogram, dated September 26, 2011, showed residual osteophytic ridging at T6-T7 with associated mild reduction of spinal caliber and a paracentral disc protrusion at T1-T2. T 324. She followed up with Ms. Mack on December 8, 2011, continuing to complain of neck, low back, left arm, and bilateral leg pain. T 330. It was noted that she was taking Norco for pain and Soma as a muscle relaxant, and she had been referred to pain management. T 330. On January 16, 2012, Plaintiff treated with Kevin R. Krafft, M.D., complaining of pain in the left shoulder and hand with numbness. T 340. Pain increased with lifting, use of the left arm, and exercising, and improved when she lied down and did not move her arm. T 340. She complained of lower back pain radiating into her legs and feet. T 340. On examination, she was in mild distress and had decreased sensation in the first and second digits of her left hand. T 341. After a review of Plaintiff’s medical records, he prescribed Neurontin and Skelaxin. T 342. She returned two days later, reporting worsening numbness. T 339. She tried Neurontin, but was not sure if it was helping, and reported she could not get Skelaxin because it was on backorder. T 339. She complained of fatigue and dizziness from the medication. T 339. Due to side effects, Dr. Krafft 5 Case 2:17-cv-01411-DKD Document 19 Filed 10/27/17 Page 6 of 25 reduced Neurontin to 200mg a day, and he prescribed Baclofen while Plaintiff waited for Skelaxin. T 339. Plaintiff underwent electrodiagnostic testing on January 25, 2012, which showed no evidence of left upper extremity entrapment, neuropathy, plexopathy, or radiculopathy. T 344. On February 8, 2012, Plaintiff reported left shoulder discomfort and trouble sleeping. T 337. Dr. Krafft started to wean Plaintiff off her medications, starting with Norco, then Neurontin, then Baclofen, and transitioned her to over the counter analgesics. T 337. He suggested she try getting out of the house to help with pain and sleep. T 337. On July 23, 2012, Plaintiff treated with Shane Maxwell, D.O., complaining of left shoulder and neck pain, aggravated by walking, lifting, using her arms, and letting her arm hang below her waist. T 796. On examination, Dr. Maxwell was able to reproduce Plaintiff’s pain on forward flexion, extension, and rotation of the cervical spine. T 797. Left shoulder and arm pain was reproduced with external rotation and abduction of the left shoulder. T 797. She had palpable spasms throughout the supraspinatus and trapezius muscles bilaterally. T 797. He assessed radiculopathy and cervicalgia. T 797. He prescribed Gabapentin, titrated up to 300mg as tolerated, and Norco. T 797. On September 11, 2012, Plaintiff treated with her primary care physician, Jason Cheng, M.D. She reported neck pain with left arm radiculopathy into her fingers. T 368. It was noted that she had tried and failed physical therapy. T 368. On examination, she was tender in the cervical spine. T 370. He referred her to pain management. T 368 Plaintiff treated with pain management specialist Daniel Ryklin, M.D., on October 15, 2012. T 550. She reported residual spasms and weakness in the left arm and back pain. 6 Case 2:17-cv-01411-DKD Document 19 Filed 10/27/17 Page 7 of 25 T 550. Pain was described as numbness, tingling, dull, sharp, and burning. T 550. It was located in her neck and radiated to her left shoulder, down her arm, and into her hand. T 550. Pain was aggravated by bending, increased activity, sitting, walking, standing, and lifting. T 550. It caused disturbances of sleep and daily household activities. T 551. Range of motion in the cervical spine was limited by at least fifty percent on all planes of movement. T 552. Reflexes at the biceps and triceps were hard to elicit. T 552. Strength was decreased in the left tricep, wrist extensor, and bicep. T 552. Plaintiff had paraspinal muscle spasms, tenderness in the trapezius muscles, and trigger points in the trapezius and supraspinatus muscles, bilaterally. T 552. Dr. Ryklin assessed cervical radiculitis and chronic post-operative pain. T 553. He increased Norco and prescribed Soma, Ibuprofen, and Elavil. T 553. On October 22, 2012, Plaintiff underwent her first cervical epidural steroid injection. T 547. The second occurred on October 29, 2012. T 544. On November 2, 2012, Plaintiff returned to Dr. Ryklin for a nerve conduction study, which was normal. T 501, 542. Plaintiff received her third injection on November 5, 2012. T 539. On November 12, 2012, Dr. Ryklin noted Plaintiff had failed the series of injections and conservative therapies. T 537. He determined Plaintiff did not need surgery, but she was a good candidate for a cervical spinal cord stimulator. T 537. On November 30, 2012, Dr. Ryklin performed a psychological evaluation for presurgical clearance for a spinal cord stimulator trial and permanent implant. T 535. Based on the testing, Plaintiff had high levels of depression and anxiety, so Dr. Ryklin determined a more formal assessment was necessary. T 535. He noted that he would seek insurance authorization. T 535. 7 Case 2:17-cv-01411-DKD Document 19 Filed 10/27/17 Page 8 of 25 On December 4, 2012, Plaintiff returned, continuing to complain of lower back pain with bilateral radicular symptoms, neck and shoulder pain, and tingling, numbness, and weakness in the left arm. T 532. On examination, palpation revealed focal myofascial tenderness over the lumbar paraspinals. T 533. She felt pain on flexion and extension of the lumbar spine. T 533. She had diminished reflexes in her knees and ankles. T 533. Dr. Ryklin ordered X-rays of the lumbar spine and a lower extremity nerve conduction study. T 533. Plaintiff returned on December 14, 2012 for the nerve conduction study, which was normal. T 499. She complained of pain and trigger points in the cervical paraspinal muscles. T 530. Dr. Ryklin referred Plaintiff for physical therapy twice per week and ordered a series of trigger point injections to help with local pain. T 530. On January 10, 2013, Plaintiff complained to Dr. Ryklin that physical therapy had caused increased pain and she ran out of medications. T 527. She had four to five sessions of physical therapy without much relief. T 527. She continued to complain of back pain with right leg radiculopathy. T 528. Dr. Ryklin increased Norco to three times a day, ordered an MRI, and administered trigger point injections in the trapezius, supraspinatus, and rhomboid muscles. T 528-29. The MRI showed disc desiccation and a shallow, broad-based disc bulge with mild facet hypertrophy at L3-L4. T 515. On February 13, 2013, Dr. Ryklin noted that, after a finding of elevated liver enzymes, all Tylenol based medications were discontinued. T 524. She was prescribed Oxycodone 5mg at the hospital, but it was not controlling her pain. T 524. After review of the MRI, Dr. Ryklin noted Plaintiff had a small annular tear at L4-L5 and a broad-based disc bulge at L5-S1 with abutment of the bilateral S1 nerve root. T 524. He prescribed Oxycodone 8 Case 2:17-cv-01411-DKD Document 19 Filed 10/27/17 Page 9 of 25 10mg and a trial of L5 transforaminal epidural steroid injections. T 525. On February 19, 2013, Plaintiff returned to Dr. Ryklin’s office and treated with Eva Liza Lim, FNP. T 522. She reported her insurance did not cover Oxycodone, so she had been out of medications for several days. T 522. Ms. Lim noted that prior authorization was required for Oxycodone, and she wrote another prescription. T 522-23. On March 19, 2013, Plaintiff treated with Dr. Ryklin, reporting that she was tolerating Oxycodone without complications. T 520. She requested lumbar epidural injections to help with persistent back pain. T 520. Dr. Ryklin scheduled injections and refilled Oxycodone. T 521. Plaintiff presented to Erin Moffett, P.A., on April 19, 2013 for a lumbar transforaminal injection. T 496. She complained that medications were not controlling her pain, and pain interfered with her quality of life and function. T 496. She requested injections, but she could not begin another series until October. T 497. Ms. Moffett stopped Oxycodone and prescribed MS Contin. T 497. On April 25, 2013, Plaintiff received a lumbar transforaminal injection at L5. T 494. On May 2, 2013, Plaintiff received a lumbar transforaminal injection at L4. T 417. On May 10, 2013, Plaintiff treated with Ms. Moffett, reporting that MS Contin made her drowsy. T 415. She continued to complain of back and neck pain. T 415. MS Contin was refilled and an ultrasound of the neck tissue was ordered, which was normal. T 416, 514. On May 16, 2013, Plaintiff received a transforaminal epidural steroid injection at L4. T 413. Plaintiff treated with Dr. Ryklin on May 31, 2013 for cervical trigger point injections. T 411. On examination, she had five exquisitely tender trigger points in the left trapezius supraspinatus, and rhomboid muscles. T 411. She returned on June 7, 2013, treating 9 with Ms. Moffett. T 409. She complained of back pain and pain in her right hip. T 409. On examination, she was tender over the trochanteric bursa. T 410. An injection for bursitis was ordered. T 410. On June 10, 2013, Dr. Ryklin administered a cervical epidural steroid injection. T 407. On June 26, 2013, Dr. Ryklin confirmed bursitis and administered an injection in the greater trochanter. T 405. Plaintiff returned to Ms. Moffett on July 5, 2013, reporting relief from the cervical injection for four to five days and no relief from the bursa injection. T 402. She complained of worsening pain and numbness in her left arm. T 402. MS Contin was refilled, Soma was increased to three times a day, a repeat EMG was ordered, and bursa and cervical injections were ordered. T 403-04. Plaintiff received a cervical epidural steroid injection on July 22, 2013. T 400. On August 2, 2013, Plaintiff returned to Ms. Moffett, reporting that the cervical injection only lasted a few days. T 397. Plaintiff’s medications were refilled. T 398. Plaintiff treated with Dr. Cheng on August 8, 2013, complaining of left shoulder pain and back pain. T 464. He ordered X-rays of Plaintiff’s shoulder and thoracic spine, which were normal. T 464, 584-85. He instructed her to follow up with neurosurgery and pain management. T 464. On August 19, 2013, Dr. Ryklin administered a cervical epidural steroid injection. T 471. On August 27, 2013, Plaintiff reported increased pain in the left arm with inadequate relief from medications. T 555. She also complained of persistent back pain with radicular symptoms. T 555. On examination, she was in mild distress secondary to pain and had some guarding of the left arm. T 470. He increased MS Contin and recommended a lumbar transforaminal epidural steroid injection. T 470. Plaintiff returned to Dr. Ryklin on September 9, 2013 for a medication adjustment 10 after developing side effects from the increase in MS Contin. T 580. He discontinued MS Contin, and prescribed a titration of Methadone. T 581. On September 16, 2013, Plaintiff received a transforaminal epidural steroid injection at L4. T 867. Plaintiff returned on September 24, 2013 for a nerve conduction study. T 578. It was noted that she had consulted with a neurosurgeon, who suggested a cervical spinal cord stimulator. T 578. Dr. Ryklin sought authorization for another transforaminal epidural injection for the right L4 and L5. T 578. The nerve conduction study was normal, so Dr. Ryklin sought insurance approval for a psychological assessment to obtain clearance for a spinal cord stimulator. T 578. On October 8, 2013, Plaintiff reported to Ms. Moffett that Methadone was working well for pain. T 573. However, it had caused increased anxiety. T 573. She went to the emergency room, and was prescribed Ativan. T 573. On October 16, 2013, Plaintiff received a transforaminal epidural steroid injection at L4-L5. T 857. Plaintiff returned to Ms. Moffett on November 7, 2013 reporting that she was doing "alright" on Methadone, but she still had pain in the left side of her neck. T 571. Methadone was increased to three times a day, and it was noted that she could not repeat injections until April because she already had eight. T 572. On December 6, 2013, Plaintiff treated with Ms. Lim, reporting that she did not notice a difference in pain with the increase in Methadone. T 853. She prescribed Robaxin, and warned her not to take it with Soma. T 854. Methadone was refilled. T 851. On February 24, 2014, Plaintiff treated with Ms. Lim. She reported that she had missed appointments because she was in Idaho, and she had gotten sick while she was there. T 850. She complained of low back pain radiating to the right leg. T 850. Ms. 11 Lim refilled Methadone and Robaxin, and scheduled a trigger point injection. T 851. Plaintiff received a transforaminal epidural steroid injection on March 13, 2014. T 848. On March 24, 2014, Plaintiff returned and reported thirty percent relief for a short time with the trigger point injection. T 609. On April 21, 2014, Dr. Ryklin administered an intra-articular steroid injection in the facet joints at L3-S1. T 606. Two days later, Plaintiff returned to Ms. Lim, reporting that medications were not controlling her pain, and pain continued to interfere with her quality of life and function. T 603. The lumbar facet injection had not provided relief. T 603. Ms. Lim refilled Plaintiff’s medications and scheduled another facet injection, which occurred on May 5, 2014. T 601, 604. On May 21, 2014, Plaintiff returned to Ms. Lim, reporting forty percent relief from the injection. T 599. Her medications still were not controlling her pain. T 598. Ms. Lim refilled Methadone and prescribed Promethazine. T 599. On June 18, 2014, she again reported that medications were not controlling her pain. T 845. Pain continued to interfere with her quality of life and function. T 845. Methadone was discontinued, Fentanyl patches were prescribed, and it was noted Plaintiff would be coming back for a radiofrequency ablation procedure ("RFA"). T 846. Plaintiff treated with Ms. Lim on July 14, 2014, complaining of increased pain in her neck and left shoulder after falling at Target. T 842. Fentanyl patches were continued and it was noted Plaintiff was looking forward to the RFA. T 843. On July 23, 2014, Dr. Ryklin administered a cervical epidural steroid injection. T 840. On August 5, 2014, Plaintiff presented to Banner Gateway Medical Center, complaining of low back pain that radiated down both legs to her toes. T 751. It was 12 aggravated by walking and prolonged sitting. T 751. She was given Toradol and Morphine in the emergency room, and discharged with a prescription for NSAIDs due to her pain contract. T 752, 754. On August 12, 2014, Plaintiff underwent an RFA at L2-L5 on the right. T 838. The following day, she reported she was still sore and her medications were not controlling her pain. T 835-36. She complained of pain in her shoulder, and it was noted that range of motion was limited. T 836. An injection was scheduled for her shoulder. T 836. Fentanyl patches were discontinued and Opana was prescribed. T 836. On August 19, 2014, Plaintiff underwent an RFA on the left at L2-L5. T 833. On September 3, 2014, she reported to Ms. Lim that the last cervical injection had provided seventy percent relief and the RFA had provided eighty percent relief. T 830-31. However, the right side of her lumbar spine was bothering her. T 831. She continued to have limited range of motion in the left shoulder. T 831. An injection was scheduled, Robaxin was refilled, and Plaintiff was prescribed Diclofenac. T 831. On September 15, 2014, Plaintiff treated with Dr. Cheng, complaining of fatigue and insomnia. T 655. He suspected it was a combination of pain and anxiety. T 655. Dr. Cheng noted that Plaintiff’s RFA had provided some relief, but she was feeling pain in the right side. T 656. He prescribed a trial of Hydroxyzine and instructed Plaintiff to follow up with pain management. T 655. On September 24, 2014, Plaintiff treated with Yolanda A. Smith, FNP, at Dr. Ryklin’s office. T 827. She reported that medications were controlling her pain reasonably well. T 827. However, Opana was not covered by her insurance, so she needed a different medication. T 828. Diclofenac and Robaxin were refilled, and Oxymorphone was prescribed. T 828. 13 Plaintiff returned to Ms. Lim on October 6, 2014 for an injection in her left shoulder. T 823. It was noted that she had a partial tear of the supraspinatus with impingement. T 825. Plaintiff returned on October 22, 2014, reporting eighty percent relief from the injection. T 820. Her medications were refilled. T 821. MRI dated November 12, 2014, showed minimal disc bulges at L1-L2 and L2-L3. T 811. She had degeneration of the discs at L2-L3 and L3-L4. T 811. At L4-L5 there was a left foraminal disc protrusion with annular tearing which resulted in mild to moderate narrowing of the left neural foramina and moderate narrowing of the left lateral recess with possible contact on the L5 nerve roots. T 812. At L5-S1, there was a left eccentric disc protrusion which contacted the proximal transiting left S1 nerve root. T 812. Clinical correlation was recommended for left S1 radicular symptoms. T 812. On November 20, 2014, Plaintiff reported to Ms. Lim that medications were working reasonably well to control her pain. T 817. Plaintiff returned to Dr. Ryklin for lumbar trigger point injections on January 21, 2015. T 815. She requested cervical epidural steroid injections due to the return of left sided neck pain and radiculopathy symptoms. T 815. Dr. Ryklin noted that Plaintiff had significant relief after the RFA and pain was still doing well. T 815. He sought insurance authorization for cervical injections. T 815. On March 18, 2015, Plaintiff presented to St. Luke’s complaining of bilateral neck pain radiating into her shoulder. T 872. It was noted that she was in town on vacation, but started having worsening pain and could not sleep. T 873. On examination, she had generalized tenderness in the paraspinous region bilaterally, and chest tenderness throughout the trapezius muscle into the superior shoulder region bilaterally. T 874. She 14 was given Dilaudid, Phenergan, Toradol, and Valium in the emergency room. T 874. She requested a prescription for Oxycodone because she ran out, but the doctor refused because it was a violation of her pain contract, especially since she was out of state. T 576. He encouraged her to go home early if she needed more medications because he did not see any objective findings to justify prescribing her medications. T 876. B. Opinion Evidence Plaintiff underwent a consultative examination with Angel Gomez, M.D., on November 7, 2013. T 563. She complained of low back pain, left arm weakness, and heaviness and pain in her lower extremities. T 563. She reported that she was able to shower and dress herself, but she could not vacuum due to prolonged standing, and she could not sweep due to weakness in her left arm. T 563. On examination, she ambulated with a normal gait, got on and off the examination table without difficulty, was able to heel and toe walk with pain, was able to tandem walk, hopped on two feet gingerly, and could squat halfway before complaining of pain. T 564. Strength in the left arm was limited to 4/5, and strength in both knees was limited to 4+/5. T 565. Reflexes were diminished throughout, and a sensory examination revealed decreased vibratory sensation in the left arm. T 565. Dr. Gomez noted that medical records would have been helpful, but he did not have treatment notes or imaging available. T 565. He opined that Plaintiff could lift and carry ten pounds occasionally and frequently with the left arm, but had no limitation with the right arm. T 566-67. She had no limitations standing, walking, or sitting. T 567. She was limited to occasional climbing of ladders, ropes, and scaffolds, but no limitation climbing ramps and stairs or stooping, kneeling, crouching, and 15 crawling. T 567-68. She was limited to frequent reaching, handling, and fingering with the left arm, but no limitation with the right. T 568. On February 18 and May 30, 2014, Dr. Cheng completed medical source statements of Plaintiff’s behalf. He stated that he had been treating Plaintiff since September 11, 2012 and she had been diagnosed with postlaminectomy syndrome in the cervical region with radiculopathy and chronic lower back pain. T 667, 747. Symptoms included chronic neck pain, chronic low back pain, and left arm weakness, which were constantly severe enough to interfere with attention and concentration. T 667, 747. Methadone and Soma caused drowsiness. T 667, 747. She was able to sit, stand, and walk for ten to fifteen minutes at one time, sit for two hours in an eight hour day, stand and walk for one hour in an eight hour day, and she needed to shift positions at will. T 667, 747. She needed unscheduled breaks every fifteen minutes for fifteen minutes each, and would need to recline or lie down outside of normal breaks. T 667, 747. She could occasionally lift up to ten pounds. T 668, 748. Gross manipulation was limited to fifty percent of the day with the right and ten percent of the day with the left, fine manipulation was limited to forty-five percent of the day on the right and ten percent on the left, and reaching was limited to fifty percent of the day on the right and zero percent of the day on the left. T 668, 748. He opined she would miss work more than four times per month. T 668, 748. C. Hearing Testimony Plaintiff testified to the following: She stopped working after her surgery in 2011 because she never improved and her left arm was weak. T 68. Her daughters have to help her get out of bed and get dressed almost every day due to pain. T 70. She spends 16 her days at home, and someone is always there with her because her medications make her dizzy and she needs help around the house. T 71-72. She does not like to lie around and not do anything, so she tries to wash dishes and do little chores around the house. T 73. She has to lie down about five times a day for ten minutes after she takes her medications because they make her dizzy. T 80. She also naps once or twice a day for about an hour. T 80-81. The Vocational Expert ("VE") testified that someone of Plaintiff’s age, education, and experience with the ALJ’s determined RFC, could not perform Plaintiff’s past relevant work, but they could perform the jobs of cashier, laundry worker, and office helper. T 88-89. If such an individual were only able to use their left arm as a guide, there would be no jobs in the national economy they could perform. T 91. If such a person were limited to lifting only ten pounds occasionally, and needed a break every fifteen minutes, there would be no work. T 93-94. Absenteeism at a level of more than four times a month would not be tolerated in competitive employment. T 94. Argument Pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), this Court may review the record to determine whether the Commissioner applied the proper legal standards and whether substantial evidence supports the final agency decision to deny Plaintiff benefits. Substantial evidence means more than a scintilla, "[i]t means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 400 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 229 (1938)). An individual is considered disabled for purposes of disability benefits if 17 she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). 1. The ALJ’s RFC determination is not supported by substantial evidence because it does not include limitations to account for all symptoms related to Plaintiff’s severe impairment and he failed to properly consider Dr. Cheng’s opinion under the treating physician rule. RFC is the most a person can still do despite her impairments. 20 C.F.R. §§ 404.1545, 416.945; Social Security Ruling ("SSR") 96-8p. "RFC is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis…A'regular and continuing basis’ means 8 hours a day, for 5 days a week." SSR 96-8p (emphasis in original). The ALJ is required to consider any exertional and nonexertional limitations caused by the Plaintiff’s impairments and any related symptoms caused by those impairments. 20 C.F.R. §§ 404.1569a, 416.969a. The ALJ determined Plaintiff can perform the full range of light work with a few postural limitations. T 27. However, the RFC determination is unsupported by substantial evidence due to the ALJ’s failure to incorporate limitations to account for Plaintiff’s symptoms of radiculopathy and his failure to properly assess Dr. Cheng’s opinion under the treating physician rule. a. The ALJ failed to properly consider the opinion of Dr. Cheng under the treating physician rule. Under the treating physician rule, the ALJ is require to give a treating physician’s opinion controlling weight if is it well supported by medically acceptable clinical and 18 laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). If the opinion is not entitled to controlling weight, the ALJ must consider the opinion according to six factors: the length and frequency of treatment; the nature and extent of treatment; supportability of the opinion, consistency of the opinion with other substantial evidence; the specialty of the source, and any other factors that support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). "If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence." Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). "The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Vieyra v. Barnhart, 70 F. App’x 973, 975 (9th Cir. 2003) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). In this case, the ALJ rejected the opinion of Plaintiff’s primary care physician, Dr. Cheng, because it was a checklist form without any explanations and it was unsupported by the medical record and Plaintiff’s demonstrated abilities. T 30. The ALJ reasoned that Dr. Cheng did not provide an explanation for the reaching limitations with the right hand when Plaintiff only alleged such limitations with the left hand, and the sitting limitations and requirement for extra breaks was inconsistent with her ability to travel to and attend her hearing. T 30. These reasons are not the "specific and legitimate reasons 19 supported by substantial evidence" required under the law of this Circuit. Garrison, 759 F.3d at 1012. When an opinion is expressed in check-box form, but based on significant experience with Plaintiff and numerous medical records, the ALJ cannot reject the opinion because it is a check-box form. Id. at 1013. Here, Dr. Cheng’s assessment is in check-box form, but it is supported by the records from Dr. Ryklin’s treatment, which is the most extensive treatment in the record for Plaintiff’s severe impairment, and Dr. Cheng was aware of Plaintiff’s treatment with him. Dr. Cheng opined Plaintiff was limited to standing and walking one hour in an eight hour day and sitting for two hours in an eight hour day. T 667, 747. This is supported by findings of pain with flexion and extension of the lumbar spine and diminished reflexes in her knees and ankles. T 533. He opined she had limited use of both arms, with the left more limited than the right. T 668, 748. Such restrictions are supported by findings of decreased sensation in her left fingers (T 341), pain on abduction and external rotation of the left shoulder (T 797, 825), diminished reflexes at the biceps and triceps bilaterally (T 552), decreased strength in the left tricep, wrist extensor, and bicep (T 552), tender trigger points in the bilateral trapezius and supraspinatus muscles (T 411, 552), and limited range of motion of the cervical spine (T 552, 797). He opined she would miss work more than four days per month. T 668, 748. This opinion is supported by the record taken as a whole. Plaintiff first treated with Dr. Cheng in September of 2012. T 368. Between September of 2012 and December of 2014, Plaintiff attended an average of three and a half doctor appointments per month to treat her neck and back pain and 20 other impairments that resulted from chronic narcotic use. Therefore, the evidence supports that, due to Plaintiff’s impairments, she would miss work more than four times per month. Dr. Cheng’s opinion is supported by other objective evidence. Plaintiff underwent eight injections in the cervical spine, ten injections in the lumbar spine, and two trigger point injections. T 400, 407, 411, 413, 417, 471, 494, 496, 539, 544, 547, 601, 606, 815, 823, 840, 848, 857, 867. MRI in February of 2013 showed an annular tear at L4-L5 and a broad based disc bulge at L5-S1 abutting the S1 nerve root bilaterally. T 524. She underwent an RFA procedure on the right and left at L2-L5. T 833, 838. In November of 2014, MRI showed annular tearing at L4-L5 with a disc protrusion possibly in contact with the L5 nerve roots, and an L5-S1 disc protrusion which contacted the left S1 nerve root. T 812. The evidence supports Dr. Cheng’s opinion. Therefore, the ALJ cannot reject the opinion because it was in check-box form. Garrison, 759 F.3d at 1013. Further, the ALJ claimed Dr. Cheng’s opinion was unsupported by the medical record. T 30. Clearly, there was sufficient evidence to support Dr. Cheng’s opinions as just discussed. The ALJ must provide a detailed summary of the evidence and make findings based on that evidence to support the rejection of a treating physician’s opinion. Vieyra, 70 F. App’x at 975. The ALJ did not do so here. He briefly mentioned radiology reports showing mild findings, X-rays of the left shoulder and arm that were normal, and negative nerve conduction studies. T 28. He briefly mentioned that she had surgery and underwent multiple injections. T 29. This is not a detailed assessment of the evidence. The ALJ 21 never mentions examination findings, such as the diminished sensation and reflexes or limitations in range of motion noted above. Therefore, the ALJ failed to provide legally sufficient reasons for the rejection of Dr. Cheng’s opinion. Garrison, 759 F.3d at 1012-13, Vieyra, 70 F. App’x at 975. The last reason provided by the ALJ for the rejection of Dr. Cheng’s opinion is also legally insufficient. The ALJ determined that Dr. Cheng’s opinion was inconsistent with Plaintiff’s ability to drive to and sit through her hearing. T 30. The ALJ cannot reject a doctor’s assessment of Plaintiff’s impairments, based on uncontradicted clinical findings, after observing Plaintiff at a hearing unless he found evidence of malingering. Coats v. Heckler, 733 F.2d 1338, 1340-41 (9th Cir. 1984) (citing Rhodes v. Schweiker, 660 F.2d 722, 723 (9th Cir, 1981)). The ALJ did not make a finding of malingering, so the rejection of Dr. Cheng’s opinion on this basis was improper. Id. The credit as true rule in this Circuit allows the Court to remand the case for a calculation of benefits when, as here, the ALJ rejects an opinion, he failed to provide legally sufficient reasons for the rejection, the record has been fully developed such that further proceedings would provide no useful purpose, and, if the rejected opinion were taken as true, the ALJ would have to find Plaintiff disabled on remand. Garrison, 759 F.3d at 1019. Had the ALJ credited Dr. Cheng’s assessment, he would have found Plaintiff disabled. The VE testified that if Plaintiff would miss work four times per month, she would not be eligible for competitive employment. T 94. Therefore, this case should be remanded for a calculation of benefits. In the alternative, if the Court decides that further development is needed, this case should be remanded for a proper 22 consideration of the opinion evidence and RFC. b. The ALJ failed to include limitations in the RFC to account for Plaintiff’s symptoms of radiculopathy. The ALJ is required to consider any exertional and nonexertional limitations caused by Plaintiff’s impairments and any related symptoms caused by those impairments. 20 C.F.R. §§ 404.1569a, 416.969a. Here, the ALJ found Plaintiff’s degenerative disc disease a severe impairment. T 25. However, the RFC does not include any limitations for Plaintiff’s radiculopathy symptoms caused by the degenerative disc disease, which is error. The ALJ rejected the reaching limitations contained in Dr. Cheng’s opinion because Dr. Cheng failed to explain why he opined limitations with the right arm when Plaintiff only alleged limitations with the left arm. T 30. The ALJ must provide specific and legitimate reasons supported by the evidence to reject a treating physician’s opinion. Garrison, 759 F.3d at 1012. The opined limitations regarding Plaintiff’s use of left arm are supported by the record. The record is replete with evidence supporting a limitation in reaching, handling, and fingering with the left arm and hand. After her 2011 cervical fusion surgery, Plaintiff continuously reported left arm and hand pain, numbness, and tingling. T 332, 339-40, 368, 402, 415, 464, 496, 532, 550, 555, 603, 845. She had decreased sensation in the fingers of her left hand. T 341. Strength was decreased in the left bicep, tricep, and wrist extensor. T 552. Plaintiff’s symptoms of radiculopathy were so severe, it was suggested that she have a spinal cord stimulator implanted in her cervical spine. T 578. On October 6, 2014, it was 23 determined Plaintiff had a tear in the supraspinatus muscle with impingement. T 825. The evidence adequately supports Dr. Cheng’s opinion that Plaintiff can only use her left hand for ten percent of the day and cannot reach with her left arm at all. T 668, 748. Since her radiculopathy symptoms are symptoms of her degenerative disc disease in the cervical spine, which the ALJ found severe, he was required to incorporate such limitations in the RFC. 20 C.F.R. §§ 404.1569a, 416.969a. His failure to do so is error. The ALJ’s error is not harmless. The VE testified that if Plaintiff was only able to use her left arm as a guide, and no other functional purpose, she would be unable to perform any work in the national economy. T 91. Therefore, based on the VE’s testimony, he would have found Plaintiff disabled. As a result of the ALJ’s errors in rejecting Dr. Cheng’s opinion and his failure to include limitations in Plaintiff’s use of her left arm and hand into the RFC, the RFC determination is not supported by substantial evidence. Conclusion For the foregoing reasons, it is respectfully requested this matter be remanded for a calculation of benefits. Alternatively, if the Court determines further proceedings are necessary, it is requested that the case be remanded for a de novo hearing and new decision. Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky, Esq. Attorney for Plaintiff Olinsky Law Group One Park Place 24 300 South State St., Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Email: holinsky@windisability.com CERTIFICATE OF SERVICE I hereby certify that on October 27, 2017, I electronically filed Plaintiff’s reply brief with the Clerk of the District Court using the CM/ECF system, which sent notification of such filing to the following: To: Elizabeth A. Strange Acting United States Attorney District of Arizona Alexis L. Toma Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 State Bar No. WA42955 Fax: (206) 615-2531 alexis.toma@ssa.gov Telephone: (206) 615-2950/s/Howard D. Olinsky Howard D. Olinsky, Esq. Attorney for Plaintiff 25

RESPONSE BRIEF by Commissioner of Social Security Administration.

Case 2:17-cv-01411-DKD Document 20 Filed 11/27/17 Page 1 of 15 1 Elizabeth A. Strange First Assistant United States Attorney 2 District of Arizona 3 Alexis L. Toma 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. WA 42955 8 Fax: (206) 615-2531 alexis.toma@ssa.gov 9 Telephone: (206) 615-2950 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Margarita Leon De Nunez, 14 No. CV-17-1411-PHX-DKD 15 Plaintiff, 16 Defendant’s Responsive Brief vs. 17 Commissioner of Social Security 18 Administration, 19 Defendant. 20 21 Plaintiff Margarita Leon De Nunez seeks judicial review of the final 22 administrative decision of Defendant Acting Commissioner of Social Security denying 23 her Title II and Title XVI applications for a period of disability, disability insurance 24 25 benefit payments, and supplemental security income. 42 U.S.C. §§ 405(g), 1383(c)(3). 26 Because the Administrative Law Judge’s (ALJ’s) decision is supported by substantial 27 evidence and is not based on legal error, the Court should affirm. 28 Case 2:17-cv-01411-DKD Document 20 Filed 11/27/17 Page 2 of 15 1 I. Statement of the Issues 2 A. Whether the ALJ reasonably evaluated the physical opinion evidence, specifically 3 the opinion of Jason Cheng, M.D.; and 4 B. Whether the ALJ’s residual functional capacity finding with respect to any left 5 upper extremity limitation is supported by substantial evidence. 6 Plaintiff’s Opening Brief (Pl.’s Br.) at 18-24 (ECF No. 19). Because Plaintiff requests a 7 remand for payment of benefits, Defendant will also briefly discuss the issue of remedy. 8 However, Defendant notes that, Plaintiff’s brief does not contest any of the ALJ’s 9 10 findings regarding the psychological evidence or the ALJ’s well-reasoned finding that 11 she is not a credible source of information. See Pl.’s Br. at 1-25. 12 II. Statement of the Case 13 14 In December 2012, Plaintiff applied for disability insurance benefits and social 15 security income, alleging disability beginning April 15, 2011. Tr. 22, 97 (initial claim 16 date of December 12, 2012), 204-205, 206-211. On August 26, 2015, Plaintiff appeared 17 18 with her attorney at a hearing before an ALJ. Tr. 22, 61-95. A vocational expert also 19 testified. Tr. 85-94. On September 18, 2015, the ALJ issued a decision that Plaintiff was 20 not disabled within the meaning of the Social Security Act. Tr. 22-34. 21 On March 6, 2017, the Appeals Council declined review of the ALJ’s decision, 22 23 making it the final decision of the Commissioner. Tr. 1-3. Plaintiff now seeks judicial 24 review of that final decision. 25///26 27///28///2 Case 2:17-cv-01411-DKD Document 20 Filed 11/27/17 Page 3 of 15 1 III. Statement of Facts and Sequential Evaluation Findings 2 Plaintiff alleged she became disabled in April 2011, when she was 40 years old. 3 Tr. 22, 32. She has a limited education, having completed the 11th grade. Tr. 32, 65. She 4 5 has worked as a packager and machine operator at a cheese factory. Tr. 32, 229. 6 To determine whether a claimant is disabled for purposes of the Social Security 7 Act, the ALJ follows a five-step process. 20 C.F.R. §§ 404.1520(a), 416.920(a). The 8 claimant bears the burden of proof on the first four steps, but at step five, the burden 9 10 shifts to the Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 11 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity 12 since the alleged onset date. Tr. 24. At step two, the ALJ found Plaintiff had a severe 13 14 physical impairment of degenerative disc disease, status-post spinal fusion. Tr. 25. The 15 ALJ found Plaintiff had a non-severe mental impairment of adjustment disorder. Tr. 25-16 26. At step three, the ALJ determined Plaintiff did not have an impairment or 17 18 combination of impairments that met or medically equaled an impairment listed in 19 Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. Tr. 26-27. 20 The ALJ determined Plaintiff’s statements about her symptoms were not entirely 21 credible for several reasons, including, for example: (1) clinical findings from radiology 22 23 spine reports (Tr. 28); (2) an emergency room doctor’s refusal to prescribe medication 24 (Tr. 28); (3) normal clinical studies of her left upper extremity (Tr. 28); (4) normal 25 clinical findings despite allegations of leg problems (Tr. 28); (5) daily activities including 26 27 babysitting for two young children, exercising, and international travel (Tr. 29); and (6) 28 reported relief from radiofrequency ablation and medication (Tr. 29). 3 Case 2:17-cv-01411-DKD Document 20 Filed 11/27/17 Page 4 of 15 1 The ALJ found Plaintiff had the residual functional capacity (RFC) to perform 2 light work, with occasional climbing and frequent balancing, stooping, kneeling, 3 crouching, and crawling. Tr. 27. At step four, the ALJ found Plaintiff could not perform 4 5 her past relevant work. Tr. 32. At step five, the ALJ concluded that, considering 6 Plaintiff’s age, education, work experience, and RFC, there are jobs that exist in 7 significant numbers in the national economy that she can perform, including cashier, 8 laundry worker, and office helper. Tr. 33. Accordingly, the ALJ concluded Plaintiff was 9 10 not disabled as defined under the Social Security Act from her alleged onset date through 11 the date of the decision, which was September 18, 2015. Tr. 34. 12 IV. Argument 13 14 The court may set aside the Commissioner’s disability determination only if the 15 determination is not supported by substantial evidence or is based on legal error. Orn v. 16 Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, 17 18 but less than a preponderance, of relevant evidence that a reasonable person might accept 19 as adequate to support a conclusion considering the record as a whole. Id. In 20 determining whether substantial evidence supports a decision, the court must consider the 21 record as a whole and may not affirm simply by isolating a "specific quantum of 22 23 supporting evidence." Id. As a general rule, "[w]here the evidence is susceptible to more 24 than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s 25 conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) 26 27 (citations omitted). 28 4 Case 2:17-cv-01411-DKD Document 20 Filed 11/27/17 Page 5 of 15 1 The ALJ is responsible for resolving conflicts in medical testimony and resolving 2 ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). In reviewing the 3 ALJ’s reasoning, the court is "not deprived of [its] faculties for drawing specific and 4 5 legitimate inferences from the ALJ’s opinion." Magallanes v. Bowen, 881 F.2d 747, 755 6 (9th Cir. 1989). 7 A. The ALJ reasonably weighed Dr. Cheng’s opinion. 8 Plaintiff argues the ALJ improperly rejected Dr. Cheng’s opinion. Pl.’s Br. at 18-9 10 22. However, the Court should reject Plaintiff’s preference for an alternative 11 interpretation of the physical opinion evidence. 12 1. Legal Standard 13 14 The Ninth Circuit distinguishes between the opinions of treating physicians, 15 examining physicians, and non-examining physicians. Lester v. Chater, 81 F.3d 821, 16 830 (9th Cir. 1995). Generally, an ALJ should give greatest weight to a treating 17 18 physician’s opinion and more weight to the opinion of an examining physician than to 19 one of a non-examining physician. See Andrews, 53 F.3d at 1040-4; see also 20 C.F.R. § 20 404.1527(c)(2)-(6) (listing factors to be considered when evaluating opinion evidence, 21 including length of examining or treating relationship, frequency of examination, 22 23 consistency with the record, and support from objective evidence). If it is not 24 contradicted by another doctor’s opinion, the opinion of a treating or examining 25 physician can be rejected only for "clear and convincing" reasons. Lester, 26 27 28 5 Case 2:17-cv-01411-DKD Document 20 Filed 11/27/17 Page 6 of 15 1 81 F.3d at 830 (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). A 2 contradicted opinion of a treating or examining physician "can only be rejected for 3 specific and legitimate reasons that are supported by substantial evidence in the record." 4 5 Lester, 81 F.3d at 830-31 (citing Andrews, 53 F.3d at 1043). 6 An ALJ can meet the "specific and legitimate reasons" standard "by setting out a 7 detailed and thorough summary of the facts and conflicting clinical evidence, stating his 8 interpretation thereof, and making findings." Cotton v. Bowen, 799 F.2d 1403, 1408 (9th 9 10 Cir. 1986). But "[t]he ALJ must do more than offer his conclusions. He must set forth his 11 own interpretations and explain why they, rather than the doctors’, are correct." Embrey, 12 849 F.2d at 421-22. 13 14 2. Physical Opinion Evidence 15 In this case, the ALJ was presented with conflicting physical opinions and was 16 therefore required to provide specific and legitimate reasons for rejecting Dr. Cheng’s 17 18 opinion (compare Tr. 116-118 (non-examining physician James Metcalf, M.D.) and Tr. 19 563-568 (examining physician Angel Gomez, M.D.) with Tr. 667-668, 747-748 (treating 20 physician Jason Cheng, M.D.)). Plaintiff disagrees with the ALJ’s evaluation of the 21 physical opinion evidence; however, the ALJ is responsible for judging the medical 22 23 evidence. Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1164 (9th Cir. 2008). The 24 ALJ is also responsible for resolving conflicts in medical testimony. Andrews, 53 F.3d at 25 1039. In this case, the ALJ reasonably discounted Dr. Cheng’s opinion. 26 27///28 6 Case 2:17-cv-01411-DKD Document 20 Filed 11/27/17 Page 7 of 15 1 Dr. Cheng provided two check-box functional assessments. Tr. 30, 667-668, 747-2 748. Dr. Cheng opined Plaintiff requires opportunities to lie down and take breaks during 3 the day, can walk one black before needing to rest, can work no more than three hours in 4 5 an eight-hour work day, has bilateral upper extremity limitations, and will be absent more 6 than four times a month. Tr. 667-668, 747-748. The ALJ considered these assessments 7 but determined to afford them little weight for four rational reasons. 8 First, the ALJ determined Dr. Cheng’s "checklist-style forms" had little to no 9 10 explanation for his functional limitations. Tr. 30. In the Ninth Circuit, the ALJ may 11 "permissibly reject check-off reports that do not contain any explanation of the bases of 12 their conclusions." Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). In response, 13 14 Plaintiff argues that because Dr. Cheng’s assessment was "supported by the records from 15 Dr. Ryklin’s treatment," of which Dr. Cheng "was aware," the ALJ cannot reject Dr. 16 Cheng’s opinion. Pl.’s Br. at 20. The Court should reject this assertion. 17 18 Plaintiff cites Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014) in support of 19 his argument, but that reliance is misplaced. In Garrison, Dr. Wang and Nurse Anderson 20 provided opinions on Garrison’s functional limitations, but the "check-box forms did not 21 stand alone: they reflected and were entirely consistent with the hundreds of pages of 22 23 treatment notes created by Wang and Anderson in the course of their relationship with 24 Garrison." Id., 1014 n.17. Here, Plaintiff is not relying on the treatment notes created by 25 Dr. Cheng to argue that the check-box form does not stand alone; rather, he is relying on 26 27 notes from Dr. Ryklin. Thus, Plaintiff’s argument is factually distinct from the Garrison 28 case. 7 Case 2:17-cv-01411-DKD Document 20 Filed 11/27/17 Page 8 of 15 1 Plaintiff then presents her alternative interpretation of the record, Pl.’s Br. at 20-22, 2 but her interpretation is not entitled to deference. Rollins v. Massanari, 261 F.3d 853, 3 857 (9th Cir. 2001) (so long as the ALJ presents a reasonable interpretation supported by 4 5 substantial evidence, a court may not "second-guess" it) (citation omitted). She cites to 6 some objective findings on examination to support Dr. Cheng’s exertional assessment, 7 Pl.’s Br. at 20, but during that same examination, Plaintiff was able to "heel-walk and 8 toe-walk without any difficulty…perform a full squat…climb up on the examination 9 10 table without any difficulty." Tr. 533. She then cites left upper extremity findings, Pl.’s 11 Br. at 20, but the ALJ considered Plaintiff’s arm allegations and relied specifically on 12 normal x-ray images, repeated normal nerve conduction and electrodiagnostic studies, 13 14 and normal examination findings. Tr. 28 (citing Tr. 344, 584, 756, 757, 763, 866, 874). 15 Plaintiff next argues that, because she attended doctor appointments and treated with 16 medication, she would miss work multiple times per month. Pl.’s Br. at 20-21. She 17 18 provides no citation in support of this speculative argument. Plaintiff then cites injections 19 and MRI images. Pl.’s Br. at 21. However, the ALJ agreed Plaintiff had a severe 20 impairment of degenerative disc disease status-post fusion (Tr. 25) and expressly 21 discussed radiology reports that did not reveal canal stenosis or significant neural 22 23 foraminal narrowing. Tr. 27 (citing Tr. 347, 644, 812). Moreover, the ALJ considered 24 the treatment record, noting benefit from lumbar radiofrequency ablation, as well as 25 injections. Tr. 29. The Court should decline Plaintiff’s request for an alternative 26 27 interpretation of the medical record; rather, the ALJ’s decision is sufficient, as the 28 reasoning is specific and legitimate. 8 Case 2:17-cv-01411-DKD Document 20 Filed 11/27/17 Page 9 of 15 1 Second, the ALJ contrasted Dr. Cheng’s assessment with Plaintiff’s own allegations. 2 Tr. 30. An ALJ may reject the contradicted opinion of a treating doctor by citing to 3 testimony from the claimant that conflicts with the doctor’s opinion. Morgan v. Comm’r 4 5 of Soc. Sec., 169 F.3d 595, 603 (9th Cir. 1999) (upholding ALJ’s rejection of contradicted 6 opinions of a treating psychiatrist and an examining psychologist where "the ALJ cited to 7 testimony from Morgan that conflicted with the [doctors’] opinions"). 8 Here, the ALJ noted that Dr. Cheng found bilateral upper extremity limitations 9 10 when Plaintiff alleged only left arm limitations. Tr. 30; 73-74 (testimony), 89-90 11 ("Q: …So do you use your left hand and your left arm to do anything? A: No."); 668, 748 12 (Dr. Cheng’s opinions). Plaintiff raises no argument why the ALJ’s analysis is irrational, 13 14 see Pl.’s Br. at 1-25, and she has waived the opportunity to do so. See Greenwood v. Fed. 15 Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994) ("We review only issues which are 16 argued specifically and distinctly in a party’ s opening brief.") (internal citation omitted). 17 18 The Court should sustain this reasonable finding, which is sufficient, standing alone, to 19 affirm the ALJ’s rejection of the opinion. 20 Third, the ALJ contrasted Dr. Cheng’s assessment with observations made during 21 medical appointments. Tr. 30. In assigning weight to an opinion, the ALJ may consider 22 23 "the consistency of the medical opinion with the record as a whole." Orn v. Astrue, 495 24 F.3d 625, 631 (9th Cir. 2007); 20 C.F.R. §404.1527(c)(4) (an ALJ must consider whether 25 a medical opinion is consistent "with the record as a whole"). Here, the ALJ noted that, 26 27 while Dr. Cheng opined Plaintiff could sit for 10-15 minutes at a time and then needed a 28 15-minute break, that limitation was inconsistent with observations that she was in "no 9 Case 2:17-cv-01411-DKD Document 20 Filed 11/27/17 Page 10 of 15 1 acute distress" at medical appointments. Tr. 30; see, e.g., Tr. 337, 339, 433, 451, 613, 2 625, 873, 881, 923, 952, 962, 990.1 Again, Plaintiff raises no argument as to why the 3 ALJ’s reasoning is irrational, and she has waived the opportunity to do so. Greenwood, 4 5 28 F.3d at 977. 6 Finally, the ALJ compared Dr. Cheng’s assessment with Plaintiff’s actual activities, 7 which is another proper basis for rejection. Tr. 30. Rollins, 261 F.3d at 856 ("Moreover, 8 the restrictions [opined by the treating physician] appear to be inconsistent with the level 9 10 of activity that Rollins engaged in by maintaining a household and raising two young 11 children, with no significant assistance from her ex husband."). Specifically, the ALJ 12 compared Dr. Cheng’s 10-to 15-minute sitting limitation with contradictory evidence, 13 14 including an ability to sit for 45 minutes during the hearing and to travel for 53 minutes 15 to the hearing site. Tr. 30, 61, 64-65, 95. 16 In response, Plaintiff argues the ALJ could not rely on this evidence unless he made 17 18 a "finding of malingering." Pl.’s Br. at 22. This is not an accurate statement. While an 19 ALJ’s observations may not form the sole basis for discrediting a claimant’s testimony, 20 those observations may be used in the overall evaluation of the credibility of a claimant’s 21 statements. Orn, 495 F.3d at 639. Moreover, Plaintiff raises no argument regarding why 22 23 the ALJ’s reliance on the fact that she was able to sit for a 53-minute car ride was 24 irrational. Tr. 30, 64-65. The Court should affirm the ALJ’s reasonable analysis. 25 26 27 1 It is not a post hoc rationalization to point out "additional support for the Commissioner’s and the ALJ’s position." Warre ex rel. E.T. IV v. Comm’r of Soc. Sec., 28 439 F.3d 1001, 1005 n.3 (9th Cir. 2006). 10 Case 2:17-cv-01411-DKD Document 20 Filed 11/27/17 Page 11 of 15 1 B. The ALJ’s residual functional capacity finding is reasonable. 2 Next, Plaintiff argues the ALJ failed to account for her radiculopathy symptoms in 3 the residual functional capacity assessment. Pl.’s Br. at 23-24. However, the Court 4 5 should reject Plaintiff’s contention. 6 1. Legal Standard 7 The RFC is "the most [a person] can do despite [their] limitations," and is based 8 on "all the relevant evidence in [their] case record." 20 C.F.R. §§ 404.1545(a), 9 10 416.945(a) (emphasis added). In assessing a claimant’s RFC, the ALJ must consider 11 limitations and restrictions imposed by all of an individual’s impairments. Social 12 Security Ruling 96-8p, available at 1996 WL 374184, at *5. However, there is a 13 14 difference between what an ALJ must consider and what an ALJ must articulate in the 15 decision. See Magallanes, 881 F.2d at 755 (ALJ need not recite certain "magic words" in 16 her decision, so long as the reviewing court can draw specific and legitimate inferences 17 18 from her findings). Moreover, consideration of limitations does not necessarily mean that 19 the RFC will include corresponding functional limitations, as the RFC is a finding is 20 based on the evidence in the record. 21 2. Resolution of Left Arm Evidence 22 23 Here, Plaintiff claims Dr. Cheng’s opined left arm limitations are supported by the 24 record and should have been included in the RFC. Pl.’s Br. at 23. Plaintiff’s argument 25 fails for two reasons. First, as explained above, the ALJ properly discounted Dr. Cheng’s 26 27 assessment. Second, the ALJ expressly considered, articulated, and rejected Plaintiff’s 28 arm allegations. For example, the ALJ stated that he "considered all symptoms and the 11 Case 2:17-cv-01411-DKD Document 20 Filed 11/27/17 Page 12 of 15 1 extent to which these symptoms can reasonably be accepted as consistent with the 2 objective medical evidence and other evidence" in making the RFC finding. Tr. 27. The 3 ALJ then noted Plaintiff testimony indicating that she "lost the use of her left hand and 4 5 arm after her spinal surgery." Tr. 28, 89-90 ("Q: You’re not able to use your left hand 6 and arm for anything? A: No."). 7 The ALJ then found Plaintiff’s left arm allegations were not supported by the 8 medical evidence, including x-ray imaging, electrodiagnostic studies, and physical 9 10 examination results. Tr. 28 (citing Tr. 344, 584, 756, 757, 763, 866, 874). The ALJ also 11 cited the left upper extremity electrodiagnostic evidence again in evaluating the opinion 12 evidence. Tr. 30 ("Dr. Gomez did not have an opportunity to review the claimant’s 13 14 medical records (see Exhibit 20F at 3), which would have revealed no electrodiagnostic 15 evidence of an impairment in the claimant’s left upper extremity (Ex. 4F at 11; Exhibit 16 35F at 52-53)."). Thus, given the ALJ’s discussion and the fact that the RFC does not 17 18 include any additional upper extremity limitations (Tr. 27), the ALJ reasonably 19 considered and rejected Plaintiff’s left upper extremity allegations. 20 While Plaintiff cites her subjective reports of pain, numbness, and tingling, Pl.’s Br. 21 at 23, this argument is not convincing because Plaintiff does not contest the ALJ’s 22 23 adverse symptom testimony finding, and she has waived the opportunity to do so. 24 Greenwood, 28 F.3d at 977. Plaintiff then discusses examination findings of decreased 25 sensation or strength. Pl.’s Br. at 23. But the ALJ is responsible for resolving conflicts 26 27 in medical testimony and resolving ambiguities. Andrews, 53 F.3d at 1039. Here, the 28 ALJ relied on two normal electrodiagnostic studies showing no left upper extremity 12 Case 2:17-cv-01411-DKD Document 20 Filed 11/27/17 Page 13 of 15 1 radiculopathy, as well as an examination showing normal grip strength and sensation on 2 examination. Tr. 28 (citing Tr. 344, 866, 874). The ALJ’s analysis is reasonable. 3 Plaintiff next argues that the RFC should have included left upper extremity 4 5 limitations because it was "suggested that she have a spinal cord stimulator implanted." 6 Pl.’s Br. at 23 (citing Tr. 578). But that same treatment note confirms unchanged 7 electrodiagnostic results; thus, it does not show the ALJ’s resolution of the conflicting 8 evidence was irrational. Finally, Plaintiff cites a muscle tear. Pl.’s Br. at 23-24 (citing 9 10 Tr. 825). However, it is unclear why this single citation detracts from the ALJ’s analysis 11 of the overall record, especially when the treatment record shows medication was 12 "controlling the pain reasonably well" and that a shoulder injection made her pain "80% 13 14 better" at a following appointment. Tr. 820. Thus, the Court should affirm the ALJ’s 15 reasonable RFC finding. 16 Finally, although Plaintiff invites the Court to remand for computation of benefits, 17 18 even if there were any error in the ALJ’s analysis that prejudiced Plaintiff (and there is 19 not), the appropriate remedy would be to remand for further proceedings. A remand for 20 award of benefits is appropriate only if the record, taken as a whole, leaves "not the 21 slightest uncertainty as to the outcome." Treichler v. Comm’r of Soc. Sec., 775 F.3d 22 23 1090, 1101 (9th Cir. 2014) (quoting Nat’l Labor Relations Bd. v. Wymon-Gordon, 394 24 U.S. 759, 766 n.6 (1969)). Further administrative proceedings are required if the record 25 is not free from conflicts, all factual issues have not been resolved, or the claimant’s 26 27 entitlement to benefits is not clear. Treichler, 775 F.3d at 1103-04. 28 13 Case 2:17-cv-01411-DKD Document 20 Filed 11/27/17 Page 14 of 15 1 Plaintiff has not contested multiple findings that would prevent remanding for 2 payment of benefits because they raise at least slight uncertainty as to the proper 3 outcome, including (1) the adverse credibility finding, (2) all of the psychological 4 5 findings, and (3) the opinion of examining physician Dr. Gomez—which stands in direct 6 conflict with Dr. Cheng’s opinion and opines Plaintiff can perform sedentary 7 lifting/carrying with no exertional limitations and frequent left upper extremity use. Tr. 8 30, 566-568. Nevertheless, for the reasons discussed herein, the Court should affirm the 9 10 ALJ’s decision. 11 V. Conclusion 12 It is respectfully submitted that the ALJ applied correct legal standards and that 13 14 substantial evidence supports the ALJ’s decision. Therefore, the Court should affirm the 15 Commissioner’s final decision and dismiss Plaintiff’s complaint with prejudice. 16 DATED this 27th day of November 2017. 17 18 Respectfully submitted, 19 ELIZABETH A. STRANGE Acting United States Attorney 20 District of Arizona 21 s/Alexis L. Toma 22 ALEXIS L. TOMA 23 Special Assistant United States Attorney 24 Of Counsel for the Defendant: 25 MATHEW W. PILE 26 Acting Regional Chief Counsel, Social Security Administration 27 Office of the General Counsel, Region X 701 Fifth Avenue, Suite 2900 M/S 221A 28 Seattle, WA 98104-7075 14 Case 2:17-cv-01411-DKD Document 20 Filed 11/27/17 Page 15 of 15 1 2 CERTIFICATE OF SERVICE 3 I hereby certify that the foregoing Defendant's Responsive Brief was filed 4 5 with the Clerk of the Court on November 27, 2017, using the CM/ECF system, 6 which will send notification of such filing to the following: Howard D. Olinsky. 7 8 s/Alexis L. Toma 9 ALEXIS L. TOMA 10 Special Assistant U.S. Attorney Office of the General Counsel 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

REPLY by Plaintiff Margarita Leon De Nunez.

Howard D. Olinsky Attorney for Plaintiff Admitted Pro Hac Vice One Park Place 300 South State St., Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Facsimile: (315) 701-5781 Email: holinsky@windisability.com IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Margarita Leon De Nunez No. CV-17-01411 -DKD Plaintiff, REPLY BRIEF OF PLAINTIFF vs. [Dist. Ariz. Local Rule Civil 16.1(a)] Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant Plaintiff reasserts and relies upon the arguments set forth in her Opening Brief (Dkt. No. 19), and responds to the following particular points made by Defendant in her Responsive Brief (Dkt. No. 20). 1. The ALJ failed to properly consider Dr. Cheng's opinion under the treating physician rule. Defendant argues that the ALJ properly rejected Dr. Cheng's opinion because it was in check-box form, it was inconsistent with Plaintiff's testimony and medical observations, and Plaintiff's ability to travel to and sit through the hearing contradicted 1 Dr. Cheng's assessment. Dkt. No. 20 at 7-10. Defendant's arguments do not have merit. Defendant argues that the ALJ could reject Dr. Cheng's assessment because it was in check box form, and states that Plaintiff's reliance on Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014) is misplaced. Dkt. No. 20 at 7. Defendant argues that this case is factually distinct because Plaintiff relies on Dr. Ryklin's treatment notes instead of Dr. Cheng's. Id. at 7-8. However, there is no requirement that only the treatment records of the doctor who submitted the opinion can be considered as support for a check-box form. In fact, since the ALJ is required to consider the record as a whole, the entire record must be considered when determining if a check-box form is supported by the evidence. Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014). Therefore, Plaintiff's reliance on Garrison is not misplaced, as Dr. Ryklin's treatment notes are in the record and they support Dr. Cheng's opined limitations. Defendant then argues that Plaintiff's citation of evidence supporting the opinion is simply asking the Court to reweigh the evidence, which is inappropriate because the ALJ's reasoning is specific and legitimate. Dkt. No. 20 at 8. The Ninth Circuit requires the ALJ to provide specific and legitimate reasons to support the rejection of a treating physician's opinion, which can be met "by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Vieyra v. Barnhart, 70 F. App'x 973, 975 (9th Cir. 2003) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The ALJ's brief discussion of the medical evidence in this case does not meet this burden. Plaintiff does not ask the Court to reweigh the evidence, but to consider all the evidence in the record as the ALJ 2 was required, and failed, to do. The ALJ's brief assessment fails to consider any evidence that supports Dr. Cheng's assessment and Plaintiff's ultimate claim of disability. The evidence as a whole supports Dr. Cheng's assessed limitations. Defendant further argues that Plaintiff's argument in support of Dr. Cheng's opinion that Plaintiff would miss work at least four days per month is purely speculative because she failed to provide any citation. Dkt. No. 20 at 8. Plaintiff did not feel it necessary to include a citation to every single treatment note in the record during the relevant period, but has done so below to prove the number of days Plaintiff's attended various appointments for treatment and tests. When looking at the number of treatment notes in the record, Plaintiff attended appointments on eighteen days between September 2012 and December 2012 (T 346-47, 352, 355, 358, 361, 364, 368, 371, 379, 530, 532, 535, 537, 539, 542, 544, 550),1 42 days between January 2013 and December 2013 (T 374, 377, 396-97, 400, 402, 405, 407, 409, 411, 413, 415, 417, 420, 430, 435, 439, 441, 449, 455, 464, 467, 471, 496, 494, 514-15, 520, 522, 524, 527, 555, 571, 573, 578, 580, 588, 591, 634, 853, 857, 867), and thirty days between February 2014 and December 2014 (T 598, 601, 603, 606, 608, 612, 624, 644, 647, 652, 655, 660, 751, 764, 811, 817, 820, 823, 830, 833, 835, 838, 840, 842, 845, 848, 850, 972, 983, 989). Using simple math, this averages out to roughly 3.5 days of appointments per month (including January of 2014 even though she did not seek treatment that month), which supports Dr. Cheng's opinion. Defendant argues that the ALJ relied on Plaintiff's testimony to reject Dr. Cheng's 1 Each citation is to one treatment note, and only one page of each treatment note is included to make it easier to count the number of treatment notes. If there is more than one appointment on a given day, only one of those treatment notes is cited. 3 assessment. Dkt. No. 20 at 9. While the ALJ notes that Plaintiff only alleged limitations with her left arm (T 30), that is not exactly accurate. The ALJ only asked Plaintiff about her left arm. T 74-75. Plaintiff never said she did not have any difficulty at all with the right arm. The objective evidence, such as diminished reflexes in the biceps and triceps bilaterally and tender trigger points in the bilateral trapezius and supraspinatus muscles (T 552), supports Dr. Cheng's assessment. Defendant argues that because medical observations note that Plaintiff was not in acute distress, and she was able to travel to and attend her hearing, Dr. Cheng's opinion was appropriately rejected. Dkt. No. 20 at 9-10. The fact that Plaintiff was not in acute distress proves nothing. Acute means "coming on suddenly and severely" or "sharp." BARRON'S DICTIONARY OF MEDICAL TERMS 11 (Sixth Ed. 2013). Distress means "great pain, anxiety, or sorrow." See http://www.dictionary.com/browse/distress. No acute distress does not mean that Plaintiff was not in pain, only that she was not in extreme sudden and severe pain. Lastly, the ALJ cannot use Plaintiff's attendance at the hearing to discredit Dr. Cheng's opinion absent a finding of malingering. Coats v. Heckler, 733 F.2d 1338, 1340-41 (9th Cir. 1984); Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 199- 200 (9th Cir. 2008). No such finding was made in this case. Defendant argues that the ALJ cannot rely solely on this reason to support the rejection, but because she relied on other reasons, she did not err here. Dkt. No. 20 at 10. However, if the other reasons given by the ALJ are rejected, as Plaintiff argues they should be, then this remains the only reason, and therefore cannot support the ALJ's rejection of Dr. Cheng's opinion. The ALJ failed to provide a single, legally sufficient reason, supported by the 4 evidence, for the rejection of Dr. Cheng's opinion. Therefore, the RFC determination is not supported by substantial evidence. The appropriate remedy in this case is to remand for a calculation of benefits. Defendant argues against a remand for calculation, relying on Treichler v. Comm'r of Soc. Sec., 775 F.3d 1090 (9th Cir. 2014). Dkt. No. 20 at 13. However, in that case, the issue was the ALJ's rejection of the plaintiff's testimony, and the court declined to remand the case for a calculation because there was objective medical evidence to contradict Plaintiff's testimony. Treichler, 775 F.3d at 1104. The error in the case was that the ALJ failed to provide any reasoning for his rejection, so the Court remanded back to the Agency so the ALJ could provide the proper explanation. Id. at 1102-03. This case is controlled by Garrison, which allows for the application of the credit as true rule when the ALJ fails to provide any legally sufficient reason for the rejection of a treating source's opinion. 759 F.3d at 1021-22. Therefore, a remand for calculation of benefits is appropriate in this case. Conclusion Based on the foregoing and Plaintiff's Opening Brief, it is respectfully requested this matter be remanded for a calculation of benefits. Alternatively, if the Court determines further proceedings are necessary, it is requested that the case be remanded for a de novo hearing and new decision. Respectfully submitted, /s/ Howard D. Olinsky Howard D. Olinsky, Esq. Attorney for Plaintiff Olinsky Law Group One Park Place 5 300 South State St., Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Email: holinsky@windisability.com CERTIFICATE OF SERVICE I hereby certify that on December 12, 2017, I electronically filed Plaintiff's reply brief with the Clerk of the District Court using the CM/ECF system, which sent notification of such filing to the following: To: Elizabeth A. Strange Acting United States Attorney District of Arizona Alexis L. Toma Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 State Bar No. WA42955 Fax: (206) 615-2531 alexis.toma@ssa.gov Telephone: (206) 615-2950 /s/ Howard D. Olinsky Howard D. Olinsky, Esq. Attorney for Plaintiff 6

ORDER: The final decision of the Commissioner is vacated and this matter is remanded to the Commissioner for further proceedings consistent with this Order. The Clerk of the Court shall enter judgment accordingly. Signed by Magistrate Judge David K Duncan on 1/8/18.

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Margarita Leon De Nunez, No. CV-17-1411-PHX-DKD 10 Plaintiff, 11 v. ORDER 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 Plaintiff Margarita Leon De Nunez appeals from the denial of her application for 17 benefits. (Doc. 1) This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and, with 18 the parties' consent to Magistrate Judge jurisdiction, pursuant to 28 U.S.C. § 636(c). 19 (Doc. 14) As detailed below, the Court concludes that the ALJ's decision contains 20 harmful errors and the Court will remand for further proceedings. 21 Standard of Review 22 This court must affirm the ALJ's findings if they are supported by substantial 23 evidence and are free from reversible error. Marcia v. Sullivan, 900 F.2d 172, 174 (9th 24 Cir. 1990). Substantial evidence is more than a mere scintilla, but less than a 25 preponderance; it is "such relevant evidence as a reasonable mind might accept as 26 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In 27 determining whether substantial evidence supports the ALJ's decision, the court 28 considers the record as a whole, weighing both the evidence that supports and that which 1 detracts from the ALJ's conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 2 1988). The ALJ is responsible for resolving conflicts, ambiguity, and determining 3 credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Magallanes v. 4 Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is sufficient evidence to support the 5 ALJ's determination, the Court cannot substitute its own determination. See Young v. 6 Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). 7 Thus, the Court must affirm the ALJ's decision where the evidence considered in 8 its entirety substantially supports it and the decision is free from reversible error. 42 9 U.S.C. § 405(g); Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). The Court must 10 do more than merely rubber stamp the ALJ's decision. Winans v. Bowen, 853 F.2d 643, 11 645 (9th Cir. 1988). However, where the evidence is susceptible to more than one rational 12 interpretation, the ALJ's decision must be upheld. Magallanes, 881 F.2d at 750. 13 Background 14 Leon1 was 40 years old on her alleged disability onset date. She has an 11th grade 15 education and past relevant work as a packager and machine operator. (Tr. 32) 16 After a hearing where Leon and a vocational expert testified, the ALJ issued an 17 opinion that followed the requisite five step process. The ALJ found that her severe 18 impairment was degenerative disc disease, status post spinal fusion but that its severity 19 did not meet or equal a listed impairment. (Tr. 25-27) The ALJ further found that Leon 20 had the residual functional capacity ("RFC") to perform light work subject to some 21 additional functional limitations. (Tr. 27-32) Based on Leon's past work, RFC, and 22 testimony from the vocational expert, the ALJ concluded that Leon could perform jobs 23 that exist in significant numbers in the national economy and, thus, was not disabled. 24 (Tr. 33-34) 25 26 27 28 1 Based on the information she provided, the Court concludes that Leon is the most appropriate way to refer to Plaintiff. (Doc. 2 at 1) -2- 1 Analysis 2 Background. Leon's primary care provider, Jason Cheng, M.D., completed a 3 check-box form and the ALJ discounted the form's conclusions because there was "little 4 to no explanation for such limitations." (Tr. 30) Specifically, the ALJ noted that Dr. 5 Cheng described Leon with bilateral limitations even though she had "only alleged 6 limitations in the use of the left arm and hand." (Id.) The ALJ also noted that, on the one 7 hand, Dr. Cheng had limited Leon to sitting 10-15 minutes at a time and would need a 15 8 minute break every 15 minutes but, on the other hand, Leon's medical records had noted 9 "no acute distress" and that she had been able to travel 53 minutes to the hearing and 10 participate in the 45 minute hearing. (Id.) The ALJ did not provide any additional details 11 before concluding that, because Dr. Cheng's opinion was "unsupported by the medical 12 record and [Leon's] demonstrated abilities," his assessments were entitled to only "little 13 weight." (Tr. 30) 14 Standard of Review. As the Ninth Circuit recently articulated, 15 The medical opinion of a claimant's treating physician is given "controlling weight" so long as it "is well-supported by medically acceptable clinical 16 and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record." 20 C.F.R. § 17 404.1527(c)(2). When a treating physician's opinion is not controlling, it is weighted according to factors such as the length of the treatment 18 relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability, consistency with the record, and 19 specialization of the physician. Id. § 404.1527(c)(2)–(6). 20 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). When a treating physician's 21 opinion is contradicted, "it may be rejected for specific and legitimate reasons that are 22 supported by substantial evidence in the record." Carmickle v. Comm'r, Social Sec. 23 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (internal quotation omitted). 24 Analysis. Leon argues that the ALJ's RFC was insufficient because it did not 25 "properly assess [her primary care provider's] opinion under the treating physician rule." 26 (Doc. 19 at 18) The Court agrees. 27 Leon first argues that the ALJ did not provide a sufficient explanation and that her 28 medical records, viewed as a whole, support Dr. Cheng's limitations. The Court agrees. -3- 1 "In making any determination with respect to whether an individual is under a disability 2 or continues to be under a disability, the Commissioner of Social Security shall consider 3 all evidence available in such individual's case record." 42 U.S.C. § 423(d)(5)(B). The 4 ALJ should have considered these records and the failure to do so constitutes legal error. 5 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993) (citing 20 C.F.R. § 404.1513(e)(2)). 6 Finally, Leon argues that the ALJ cannot contradict Dr. Cheng's limitations by 7 relying on observations of her at the hearing without a prior finding of malingering. 8 (Doc. 19 at 19-22) Again, the Court agrees that "the ALJ improperly rejected the opinion 9 of [Leon's] doctor regarding the severity of the impairment based upon his observations 10 of [her] behavior at the hearing." Coats v. Heckler, 733 F.2d 1338, 1340 (9th Cir. 1984). 11 Conclusion 12 As described above, the ALJ did not properly account for the opinion of Leon's 13 treating physician when determining her RFC. Because the Court concludes that the ALJ 14 opinion cannot stand, Leon's other arguments will not be addressed. Although Leon 15 seeks a remand for benefits, the Court concludes that the best course is to remand for 16 further proceedings so that the agency can weigh, in the first instance, the conflicting 17 evidence and Leon's primary care provider's opinion. Vasquez v. Astrue, 572 F.3d 586, 18 596 (9th Cir. 2009). 19 IT IS THEREFORE ORDERED that the final decision of the Commissioner is 20 vacated and this matter is remanded to the Commissioner for further proceedings 21 consistent with this Order. The Clerk of the Court shall enter judgment accordingly. 22 Dated this 8th day of January, 2018. 23 24 25 26 27 28 -4-

CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed January 8, 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 Margarita Leon De Nunez, NO. CV-17-01411-PHX-DKD 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 January 8, 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 January 8, 2018 s/ E. Aragon 24 By Deputy Clerk 25 26 27 28

Consent MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Margarita Leon De Nunez.

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 Margarita Leon De Nunez 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Margarita Leon De Nunez, 13 14 Plaintiff, Civil No. 2-17-cv-01411-DKD 15 16 vs. STIPULATED MOTION FOR 17 ATTORNEY'S FEES PURSUANT 18 Nancy A. Berryhill, Acting TO THE EQUAL ACCESS TO Commissioner of Social Security, JUSTICE ACT, 28 U.S.C.A. § 2412 19 (WEST) 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. David K. Duncan, 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 $7776.69, and 6 7 2. Awarding Expenses in the amount of $17.67; and 8 3. If the Plaintiff has no debt registered with the Department of Treasury 9 subject to offset that the fees be made payable to the attorney. 10 11 Plaintiff, by her attorney, Howard D. Olinsky moves the court for an award to be 12 13 paid by the Defendant under the Equal Access to Justice Act, 28 U.S.C.A. § 2412. 14 15 Plaintiff may receive an award under the Equal Access to Justice Act because she 16 17 is the prevailing party, is an individual whose net worth did not exceed two 18 million dollars when the action was filed, and the position of the United States in 19 this litigation and/or at the agency was not substantially justified. Although the 20 21 burden of proof on substantial justification is on the government, Plaintiff's 22 supporting memorandum briefly addresses this issue. 23 24 25 There are no special circumstances in this case which make an award under the 26 EAJA unjust. 27 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 April 6, 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 Alexis L. Toma 14 Special Assistant United States Attorney 15 Office of the General Counsel Social Security Administration 16 701 Fifth Avenue, Suite 2900 M/S 221A 17 Seattle, WA 98104-7075 State Bar No. WA 42955 18 Telephone: (206) 615-2950 19 Fax: (206) 615-2531 Email: alexis.toma@ssa.gov 20 21 Attorneys for Defendant 22 23 24 25 26 27 28 Page 3

Attorney Affirmation

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 Margarita Leon De Nunez 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Margarita Leon De Nunez, 13 14 Plaintiff, Civil No. 2-17-cv-01411-DKD 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 January 8, 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 35.3 hours of 15 work performed in 2017 and 2018 they total $6946.69. 16 17 6. I am also requesting $100.00 per hour for 8.3 hours of paralegal time 18 equaling $830.00. I am requesting $7776.69 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., Edward A. Wicklund., Marisa Burkett, Esq., 26 and Melissa Palmer, Esq. Exhibit C is broken down by paralegals. The paralegals 27 28 Page 5 1 involved in this case are Moira Deutch, Michelle Callahan, Jonnah Graser, 2 Kyrsten Gifford, and Tamica Lockwood. 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. The attached records were contemporaneously created and stored in 24 25 the firm's Prevail Database, and are printed out and attached. The itemized time 26 represents hours spent preparing and handling this case for U.S. District Court. 27 Clerical time is not included in this petition or has been zeroed out. 28 Page 6 1 Waiver of Direct Payment of EAJA Fees 2 10. Attached is an Affidavit and Waiver of Direct Payment duly 3 4 executed by the plaintiff (Exhibit E). With this Waiver, if Plaintiff owes a debt 5 that qualifies under the Treasury Offset Program (31 U.S.C.A. § 3716 (West)), any 6 payment shall be made payable to the Plaintiff and delivered to the Plaintiff's 7 8 attorney. If the United States Department of Treasury determines that Plaintiff 9 owes no debt subject to offset, the government may accept the assignment of 10 EAJA fees and pay such fees directly to the Plaintiff's attorney. Astrue v. Ratliff, 11 560 U.S. 586, 130 S. Ct. 2521, 177 L. Ed. 2d 91 (2010). 12 13 14 WHEREFORE, because all four elements of an allowable application for 15 EAJA fees have been proven, petitioner requests that the Court issue an order: 16 17 1. Awarding an Equal Access to Justice Act Counsel Fee for $7776.69; 18 and 19 2. Awarding Expenses in the amount of $17.67; and 20 21 3. If the Plaintiff has no debt registered with the Department of Treasury 22 subject to offset that the fees be made payable to the attorney. 23 24 25 Executed this April 6, 2018 26 Respectfully submitted, 27 /s/ Howard D. Olinsky 28 Howard D. Olinsky, Esq. Page 7 1 Admitted Pro Hac Vice 2 Attorney for Plaintiff Email: fedct@windisability.com 3 4 To: Elizabeth Strange, Esq. Acting United States Attorney 5 Alexis L. Toma 6 Special Assistant United States Attorney 7 Office of the General Counsel Social Security Administration 8 701 Fifth Avenue, Suite 2900 M/S 221A 9 Seattle, WA 98104-7075 State Bar No. WA 42955 10 Telephone: (206) 615-2950 11 Fax: (206) 615-2531 Email: alexis.toma@ssa.gov 12 13 Attorneys for Defendant 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 8

Exhibit A All Professional Time

Exhibit A Ledger De Nunez, Margarita Leon Date  Subject Hours Timekeeper 3/31/2017 Files received, reviewed and processed from referral source 0.6 Lockwood, Tamica 3/31/2017 Prospect Aknowledgement Letter Mailed 0.2 Lockwood, Tamica 4/5/2017 Telephone call with Client re: Debt conference call, explained process 0.4 Lockwood, Tamica 4/7/2017 Telephone call with Client re: returning clients call, left vm 0 Lockwood, Tamica 4/12/2017 Telephone call with Client re: Explained federal court 0.1 Lockwood, Tamica 4/25/2017 Review decisions and evidence to determine whether to appeal case 1 Olinsky, Howard D. 4/26/2017 Telephone call with Client re: Assistance with in forma pauperis application 0.4 Lockwood, Tamica 4/26/2017 FDC prospect packet prepared for Client completion 0.6 Lockwood, Tamica 4/26/2017 FDC Prospect Packet Sent via Right Signature 0.2 Lockwood, Tamica 4/27/2017 FDC Prospect Packet Returned Via Right Signature 0.2 Lockwood, Tamica 5/8/2017 Draft Complaint, Proposed Summons, Letter to Clerk, and Civil Cover Sheet 0.6 Olinsky, Howard D. 5/8/2017 Review motion to proceed in forma pauperis, approve for filing 0.3 Olinsky, Howard D. 5/8/2017 Draft application for Pro Hac Vice admission 0 Olinsky, Howard D. 5/9/2017 Review case assigned to Magistrate Judge David K. Duncan 0 Olinsky, Howard D. 5/9/2017 Review summons as issued to Commissioner 0 Olinsky, Howard D. 5/9/2017 Review order granting pro hac vice admission 0.1 Olinsky, Howard D. 5/9/2017 Review scheduling order, calender deadlines on task pad 0.3 Olinsky, Howard D. 5/9/2017 Federal Court -Accept Letter - New FDC Filing 0.3 Callahan, Michelle 5/10/2017 Review order granting In Forma Pauperis application, directing service 0.2 Olinsky, Howard D. 5/23/2017 Review and execute consent to Magistrate 0.2 Olinsky, Howard D. 5/24/2017 Federal Court-Service of Process-prepare service packets USAO, OGC, AG 0.6 Callahan, Michelle 5/24/2017 Review order re: failure to comply with consenting to MJ within timeframe 0 Olinsky, Howard D. 6/1/2017 Compile and file proof of service via CM / ECF 0.3 Callahan, Michelle 6/1/2017 Review service executed, confirm scheduling order calendared 0.2 Callahan, Michelle 7/10/2017 Review notice of appearance by Alexis L. Toma o/b/o Commissioner of SSA 0.2 Wicklund, Edward A. 7/10/2017 Review magistrate election form deadline set to Commissioner of SSA 0.2 Wicklund, Edward A. 7/14/2017 Telephone call with Clerk re: Confirmed that they Received our Consent to MJ 0.1 Lockwood, Tamica 7/18/2017 Review order that all parties agreed to Magistrate Judge Jurisdiction 0 Olinsky, Howard D. 8/1/2017 Download and review Answer 0.2 Wicklund, Edward A. 8/2/2017 Combine, strip PDF/A, OCR and live bookmark federal court transcript (1024pgs) 1.1 Gifford, Kyrsten 8/2/2017 Preliminary review of transcript - assign Attorney writer 0.5 Wicklund, Edward A. 9/27/2017 Email correspondence to OC re: Extension to file plaintiff brief 0 Palmer, Melissa 9/27/2017 Draft and file unopposed motion for extension of time to file brief 0 Palmer, Melissa 9/27/2017 Review certified administrative record and take notes 1 Palmer, Melissa 9/28/2017 Review motion and text of proposed order for extension of time to file Brief 0 Wicklund, Edward A. 9/28/2017 Review order granting extension to file plaintiffs brief 0.2 Wicklund, Edward A. 10/25/2017 Continue reviewing certified administrative record, take notes, organize facts 5.8 Palmer, Melissa 10/26/2017 Drafting procedural section, drafting facts 6.2 Palmer, Melissa 10/27/2017 Research issues and drafting argument 10.7 Palmer, Melissa 10/27/2017 Peer Attorney review draft brief, suggest edits 0.9 Burkett, Marisa 10/27/2017 Implement suggested edits, finalize and file brief (n/c for filing) 1.1 Palmer, Melissa 11/28/2017 Review defendant's reply brief, reassign MP writer 0.3 Wicklund, Edward A. 43.60  (Type = Time) and (Client = Margarita Leon De Nunez)    Date  Subject Hours Timekeeper 11/29/2017 Correspondence to client re: Fully Briefed Letter Mailed 0.1 Moira Deutch 12/12/2017 Reply brief drafting 4.1 Palmer, Melissa 12/12/2017 Reply brief review 0.2 Wicklund, Edward A. 12/12/2017 Implement suggested edits and file (n/c for filing) 0.1 Palmer, Melissa 1/9/2018 Review order granting remand 0.2 Olinsky, Howard D. 1/9/2018 Review judgment in favor of Margarita Leon De Nunez 0.2 Olinsky, Howard D. 1/11/2018 Federal Court-Remand Referral back to Referral Source 0.3 Graser, Jonnah 1/11/2018 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 4/2/2018 EAJA Preparation 1.5 Graser, Jonnah 4/2/2018 Review slips and finalize EAJA motion 0.5 Olinsky, Howard D. 4/2/2018 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Graser, Jonnah 43.60  (Type = Time) and (Client = Margarita Leon De Nunez)   

Exhibit B Attorney Time

Exhibit B Ledger De Nunez, Margarita Leon Date  Subject Hours Timekeeper 4/25/2017 Review decisions and evidence to determine whether to appeal case 1 Olinsky, Howard D. 5/8/2017 Draft Complaint, Proposed Summons, Letter to Clerk, and Civil Cover Sheet 0.6 Olinsky, Howard D. 5/8/2017 Review motion to proceed in forma pauperis, approve for filing 0.3 Olinsky, Howard D. 5/8/2017 Draft application for Pro Hac Vice admission 0 Olinsky, Howard D. 5/9/2017 Review case assigned to Magistrate Judge David K. Duncan 0 Olinsky, Howard D. 5/9/2017 Review summons as issued to Commissioner 0 Olinsky, Howard D. 5/9/2017 Review order granting pro hac vice admission 0.1 Olinsky, Howard D. 5/9/2017 Review scheduling order, calender deadlines on task pad 0.3 Olinsky, Howard D. 5/10/2017 Review order granting In Forma Pauperis application, directing service 0.2 Olinsky, Howard D. 5/23/2017 Review and execute consent to Magistrate 0.2 Olinsky, Howard D. 5/24/2017 Review order re: failure to comply with consenting to MJ within timeframe 0 Olinsky, Howard D. 7/10/2017 Review notice of appearance by Alexis L. Toma o/b/o Commissioner of SSA 0.2 Wicklund, Edward A. 7/10/2017 Review magistrate election form deadline set to Commissioner of SSA 0.2 Wicklund, Edward A. 7/18/2017 Review order that all parties agreed to Magistrate Judge Jurisdiction 0 Olinsky, Howard D. 8/1/2017 Download and review Answer 0.2 Wicklund, Edward A. 8/2/2017 Preliminary review of transcript - assign Attorney writer 0.5 Wicklund, Edward A. 9/27/2017 Email correspondence to OC re: Extension to file plaintiff brief 0 Palmer, Melissa 9/27/2017 Draft and file unopposed motion for extension of time to file brief 0 Palmer, Melissa 9/27/2017 Review certified administrative record and take notes 1 Palmer, Melissa 9/28/2017 Review motion and text of proposed order for extension of time to file Brief 0 Wicklund, Edward A. 9/28/2017 Review order granting extension to file plaintiffs brief 0.2 Wicklund, Edward A. 10/25/2017 Continue reviewing certified administrative record, take notes, organize facts 5.8 Palmer, Melissa 10/26/2017 Drafting procedural section, drafting facts 6.2 Palmer, Melissa 10/27/2017 Research issues and drafting argument 10.7 Palmer, Melissa 10/27/2017 Peer Attorney review draft brief, suggest edits 0.9 Burkett, Marisa 10/27/2017 Implement suggested edits, finalize and file brief (n/c for filing) 1.1 Palmer, Melissa 11/28/2017 Review defendant's reply brief, reassign MP writer 0.3 Wicklund, Edward A. 12/12/2017 Reply brief drafting 4.1 Palmer, Melissa 12/12/2017 Reply brief review 0.2 Wicklund, Edward A. 12/12/2017 Implement suggested edits and file (n/c for filing) 0.1 Palmer, Melissa 1/9/2018 Review order granting remand 0.2 Olinsky, Howard D. 1/9/2018 Review judgment in favor of Margarita Leon De Nunez 0.2 Olinsky, Howard D. 4/2/2018 Review slips and finalize EAJA motion 0.5 Olinsky, Howard D. 35.30  (Type = Time) and (Client = Margarita Leon De Nunez) and ((Timekeeper = Burkett, Marisa) or (Timekeeper = Olinsky, Howard D.) or (Timekeeper = Palmer,...   

Exhibit C Paralegal Time

Exhibit C Ledger De Nunez, Margarita Leon Date  Subject Hours Timekeeper 3/31/2017 Files received, reviewed and processed from referral source 0.6 Lockwood, Tamica 3/31/2017 Prospect Aknowledgement Letter Mailed 0.2 Lockwood, Tamica 4/5/2017 Telephone call with Client re: Debt conference call, explained process 0.4 Lockwood, Tamica 4/7/2017 Telephone call with Client re: returning clients call, left vm 0 Lockwood, Tamica 4/12/2017 Telephone call with Client re: Explained federal court 0.1 Lockwood, Tamica 4/26/2017 Telephone call with Client re: Assistance with in forma pauperis application 0.4 Lockwood, Tamica 4/26/2017 FDC prospect packet prepared for Client completion 0.6 Lockwood, Tamica 4/26/2017 FDC Prospect Packet Sent via Right Signature 0.2 Lockwood, Tamica 4/27/2017 FDC Prospect Packet Returned Via Right Signature 0.2 Lockwood, Tamica 5/9/2017 Federal Court -Accept Letter - New FDC Filing 0.3 Callahan, Michelle 5/24/2017 Federal Court-Service of Process-prepare service packets USAO, OGC, AG 0.6 Callahan, Michelle 6/1/2017 Compile and file proof of service via CM / ECF 0.3 Callahan, Michelle 6/1/2017 Review service executed, confirm scheduling order calendared 0.2 Callahan, Michelle 7/14/2017 Telephone call with Clerk re: Confirmed that they Received our Consent to MJ 0.1 Lockwood, Tamica 8/2/2017 Combine, strip PDF/A, OCR and live bookmark federal court transcript (1024pgs) 1.1 Gifford, Kyrsten 11/29/2017 Correspondence to client re: Fully Briefed Letter Mailed 0.1 Moira Deutch 1/11/2018 Federal Court-Remand Referral back to Referral Source 0.3 Graser, Jonnah 1/11/2018 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 4/2/2018 EAJA Preparation 1.5 Graser, Jonnah 4/2/2018 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Graser, Jonnah 8.30  (Type = Time) and (Client = Margarita Leon De Nunez) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Gifford, Kyrsten) or (Timekeeper = Graser, ...   

Exhibit D Expenses

Exhibit D Ledger De Nunez, Margarita Leon Amount Date Date 5 / 24 / 2017 Subject Subject Federal Court - Service of Process Timekeeper $ 17. 67 Callahan, Michelle $ 17. 67 $ 17. 67 Type = Cost)

Exhibit E Affirmation and Waiver of Direct Payment of EAJA Fees

Exhibit E UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA (PHOENIX DIVISION) -------------------------------------------------------------- MARGARITA LEON DE NUNEZ, AFFIRMATION AND WAIVER OF DIRECT PAYMENT Plaintiff, OF EAJA FEES v. Civil Action No.: _________________ NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------------------------- Margarita Leon De Nunez, 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 April 26, 2017. __________________________ Margarita Leon De Nunez 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 Margarita Leon De Nunez 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Margarita Leon De Nunez, 13 14 Plaintiff, Civil No. 2-17-cv-01411-DKD 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 January 8, 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 $7776.69; 21 and 22 2. Awarding Expenses in the amount of $17.67; and 23 3. If the Plaintiff has no debt registered with the Department of Treasury 24 25 subject to offset that the fees be made payable to the attorney. 26 27 28 Page 11 1 Executed this April 6, 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 Alexis L. Toma 11 Special Assistant United States Attorney Office of the General Counsel 12 Social Security Administration 13 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 14 State Bar No. WA 42955 15 Telephone: (206) 615-2950 Fax: (206) 615-2531 16 Email: alexis.toma@ssa.gov 17 Attorneys for Defendant 18 19 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 Margarita Leon De Nunez 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Margarita Leon De Nunez, 13 14 Plaintiff, Civil No. 2-17-cv-01411-DKD 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 3 Alexis L. Toma Special Assistant United States Attorney 4 Office of the General Counsel 5 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 6 Seattle, WA 98104-7075 7 State Bar No. WA 42955 Telephone: (206) 615-2950 8 Fax: (206) 615-2531 9 Email: alexis.toma@ssa.gov 10 Attorneys for Defendant 11 12 April 6, 2018 13 /s/ Howard D. Olinsky 14 Howard D. Olinsky, Esq. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 16

Statment Pursuant to Local Rule 54.2 (D)

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 Margarita Leon De Nunez 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Margarita Leon De Nunez, 13 14 Plaintiff, Civil No. 2-17-cv-01411-DKD 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 April 6, 2018 regarding Plaintiff's Motion for Attorney's Fees Pursuant to the 26 Equal Access to Justice Act. Opposing counsel consent's to Plaintiff's request. 27 To: Elizabeth Strange, Esq. 28 Acting United States Attorney Page 13 1 Alexis L. Toma 2 Special Assistant United States Attorney 3 Office of the General Counsel Social Security Administration 4 701 Fifth Avenue, Suite 2900 M/S 221A 5 Seattle, WA 98104-7075 State Bar No. WA 42955 6 Telephone: (206) 615-2950 7 Fax: (206) 615-2531 Email: alexis.toma@ssa.gov 8 9 Attorneys for Defendant 10 April 6, 2018 11 /s/ Howard D. Olinsky 12 Howard D. Olinsky, Esq. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 14

Text of Proposed Order

1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 10 11 12 Margarita Leon De Nunez, Civil No. 2-17-cv-01411-DKD 13 Plaintiff, 14 15 vs. (PROPOSED) ORDER AWARDING ATTORNEY'S FEES 16 PURSUANT TO THE EQUAL 17 Nancy A. Berryhill, Acting ACCESS TO JUSTICE ACT, 18 Commissioner of Social Security, 28 U.S.C. § 2412(D) 19 Defendant 20 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 Margarita Leon De Nunez, 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, costs and expenses in the 6 total amount of Seven Thousand Seven Hundred Ninety- Four Dollars and Thirty- 7 8 Six Cents ($7794.36) pursuant to the Equal Access to Justice Act, 28 U.S.C. § 9 2412(d) are awarded to Plaintiff. Astrue v. Ratliff, 130 S.Ct. 2521 (2010). 10 11 If the U.S. Department of the Treasury determines that Plaintiff's EAJA 12 13 fees are not subject to offset allowed under the Department of the Treasury's 14 Offset Program (TOPS), then the check for EAJA fees shall be made payable to 15 Plaintiff's attorney, Howard D. Olinsky. 16 17 18 Whether the check is made payable to Plaintiff or to Howard D. Olinsky, 19 the check shall be mailed to Howard D. Olinsky at the following address: 20 21 300 S. State St. Suite 420 22 Syracuse, NY 13202 23 24 25 DATED: 26 ____________________________ 27 28 Page 2

ORDER: IT IS ORDERED granting the parties' Stipulated Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (Doc. [24]), in the amount of Seven Thousand Seven Hundred Ninety- Four Dollars and Thirty-Six Cents ($7,794.36) to be awarded to Plaintiff. Signed by Magistrate Judge David K Duncan on 5/07/2018.

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Margarita Leon De Nunez, No. CV-17-1411-PHX-DKD 10 Plaintiff, 11 v. ORDER 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Before the Court is the parties' Stipulated Motion for Attorney's Fees Pursuant to 16 the Equal Access to Justice Act, 28 U.S.C. § 2412 (Doc. 24), and upon good cause 17 appearing, 18 IT IS ORDERED granting the parties' Stipulated Motion for Attorney's Fees 19 Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (Doc. 24), in the amount of 20 Seven Thousand Seven Hundred Ninety- Four Dollars and Thirty-Six Cents ($7,794.36) 21 to be awarded to Plaintiff. Astrue v. Ratliff, 130 S.Ct. 2521 (2010). 22 If the U.S. Department of the Treasury determines that Plaintiff's EAJA fees are 23 not subject to offset allowed under the Department of the Treasury's Offset Program 24 (TOPS), then the check for EAJA fees shall be made payable to Plaintiff's attorney, 25 Howard D. Olinsky. 26 ... 27 ... 28 ... 1 Whether the check is made payable to Plaintiff or to Howard D. Olinsky, the 2 check shall be mailed to Howard D. Olinsky at the following address: 300 S. State St., 3 Suite 420, Syracuse, NY 13202. 4 Dated this 7th day of May, 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
05/09/2017
Remark: Pro hac vice motion granted for Howard D Olinsky on behalf of plaintiff. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
1
05/08/2017
COMPLAINT filed by Margarita Leon de Nunez. (Submitted by Howard Olinsky)
1
Civil Cover Sheet
1 Attachment
2
05/08/2017
APPLICATION for Leave to Proceed In Forma Pauperis by Margarita Leon de Nunez. (Submitted by Howard Olinsky)
3
05/08/2017
SUMMONS Submitted by Margarita Leon de Nunez. (Submitted by Howard Olinsky)
1
Summons
2
Summons
2 Attachments
4
05/08/2017
This case has been assigned to the Honorable Magistrate Judge David K Duncan. All future pleadings or documents should bear the correct case number: CV-17-1411-PHX-DKD. Magistrate Election form attached.
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Mag Consent Form
1 Attachment
5
05/08/2017
Summons Issued as to Commissioner of Social Security, U.S. Attorney and U.S. Attorney General.
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Summons
2
Summons
2 Attachments
6
05/09/2017
SCHEDULING ORDER: Social Security Scheduling Order - see attached PDF for details. Signed by Magistrate Judge David K Duncan on 05/09/2017.
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05/09/2017
ORDER granting [2] Motion for Leave to Proceed In Forma Pauperis. Plaintiff shall be responsible for service by waiver or of the summons and complaint. Signed by Magistrate Judge David K Duncan on 05/09/2017.
8
05/23/2017
Order that Margarita Leon De Nunez show cause for failure to comply with LRCiv 3.7(b) before Judge G Murray Snow. Show Cause Hearing set for 6/19/2017 at 04:30 PM before Judge G Murray Snow.
1
Instructions
2
Consent Form
2 Attachments
9
05/30/2017
Agreement to Magistrate Judge Jurisdiction. Party agrees to Magistrate Judge Jurisdiction. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
10
06/01/2017
SERVICE EXECUTED filed by Margarita Leon De Nunez: Return of Service re: Summons, Complaint and Scheduling Order upon US Attorney's Office, Office of General Counsel, Attorney General on 5/30/2017.
11
07/08/2017
NOTICE OF ATTORNEY APPEARANCE: Alexis L. Toma appearing for Commissioner of Social Security Administration.
12
07/08/2017
Magistrate Election Form Deadline set as to Commissioner of Social Security Administration.
1
Consent Form
1 Attachment
13
07/17/2017
Agreement to Magistrate Judge Jurisdiction. Party agrees to Magistrate Judge Jurisdiction. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
14
07/18/2017
Minute Order: In accordance with 28 USC 636(c), all parties have voluntarily consented to have Magistrate Judge David K. Duncan conduct all further proceedings in this case, including trial and entry of final judgment, and conduct all post-judgment proceedings, with direct review by the Ninth Circuit Court of Appeals, if an appeal is filed. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
15
07/31/2017
ANSWER to [1] Complaint by Commissioner of Social Security Administration.
16
07/31/2017
NOTICE of Filing Certified Copy of Administrative Transcript re: [15] Answer to Complaint filed by Commissioner of Social Security Administration.
1
Certification Page
2
Court Transcript Index
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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
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Medical Records Part 2
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Medical Records Part 3
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Medical Records Part 4
11 Attachments
17
09/27/2017
MOTION for Extension of Time to file Plaintiff's Opening Brief by Margarita Leon De Nunez.
1
Text of Proposed Order Proposed Order
1 Attachment
18
09/28/2017
ORDER granting [17] Motion for Extension of Time. Plaintiff's Opening Brief is due on or before October 27, 2017. Signed by Magistrate Judge David K Duncan on 09/28/2017.
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10/27/2017
OPENING BRIEF by Margarita Leon De Nunez.
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11/27/2017
RESPONSE BRIEF by Commissioner of Social Security Administration.
21
12/12/2017
REPLY by Plaintiff Margarita Leon De Nunez.
22
01/08/2018
ORDER: The final decision of the Commissioner is vacated and this matter is remanded to the Commissioner for further proceedings consistent with this Order. The Clerk of the Court shall enter judgment accordingly. Signed by Magistrate Judge David K Duncan on 1/8/18.
23
01/08/2018
CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed January 8, 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.
24
04/06/2018
Consent MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Margarita Leon De Nunez.
1
Attorney Affirmation
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Exhibit A All Professional Time
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Exhibit B Attorney Time
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Exhibit C Paralegal Time
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Exhibit D Expenses
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Exhibit E Affirmation and Waiver of Direct Payment of EAJA Fees
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Memorandum in Support
8
Certificate of Service
9
Statment Pursuant to Local Rule 54.2 (D)
10
Text of Proposed Order
10 Attachments
25
05/07/2018
ORDER: IT IS ORDERED granting the parties' Stipulated Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (Doc. [24]), in the amount of Seven Thousand Seven Hundred Ninety- Four Dollars and Thirty-Six Cents ($7,794.36) to be awarded to Plaintiff. Signed by Magistrate Judge David K Duncan on 5/07/2018.
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