Marshall v. Colvin
Court Docket Sheet

District of Alaska

3:2016-cv-00285 (akd)

MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Howard D. Olinsky. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2318860.) by Robert Charles Marshall.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA ROBERT CHARLES MARSHALL, Case No. 3:16-cv-00285-HRH Plaintiff(s), MOTION AND APPLICATION OF vs. NON-ELIGIBLE ATTORNEY FOR NANCY A. BERRYHILL, PERMISSION TO APPEAR AND Acting Commissioner of Social Security, PARTICIPATE IN THE UNITED STATES DISTRICT COURT Defendant(s). FOR THE DISTRICT OF ALASKA To the Honorable Judge of the above-entitled court: I, Howard D. Olinsky, hereby apply for permission to appear and (name) participate as counsel for Robert Charles Marshall, plaintiff, (Name of party) (plaintiff/defendant) in the above-entitled cause pursuant to Rule 83.1 (d) of the Local Rules for the United States District Court, District of Alaska. I hereby apply for permission to appear and participate as counsel WITHOUT ASSOCIATION of local counsel because [check whichever of the following boxes apply, if any]: I am a registered participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. I have concurrently herewith submitted an application to the Clerk of the Court for registration as a participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. For the reasons set forth in the attached memorandum. Case 3:16-cv-00285-HRH Document 14 Filed 04/20/17 Page 1 of 4 OR I hereby designate, a member of the Bar of this court, (Name) who maintains an office at the place within the district, with whom the court and opposing counsel may readily communicate regarding conduct of this case. DATE: (Signature) Howard D. Olinsky (Printed Name) (Address) (City/State/Zip) (Telephone Number) (e-mail address) Consent of Local Counsel* I hereby consent to the granting of the foregoing application. DATE: (Signature) (Printed Name) (Address) (City, State, Zip) (Telephone) (*Member of the Bar of the United States District Court for the District of Alaska) Case 3:16-cv-00285-HRH Document 14 Filed 04/20/17 Page 2 of 4 DECLARATION OF NON-ELIGIBLE ATTORNEY Full Name: Howard D. Olinsky Business Address: 300 S. South Street, Ste. 420, Syracuse, NY 13202 (Mailing/Street) (City, State, ZIP) Residence: 4435 Swissvale Drive, Manlius, NY 13104 (Mailing/Street) (City, State, ZIP) Business Telephone: 315-701-5780 e-mail address: holinsky@windisability.com Other Names/Aliases: N/A Jurisdictions to Which Admitted and year of Admission: See attached sheet (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) Are you the subject of any pending disciplinary proceeding in any jurisdiction to which admitted? Yes No (If Yes, provide details on a separate attached sheet) Have you ever been suspended from practice or disbarred in any jurisdiction to which admitted? Yes No (If Yes, provide details on a separate attached sheet) In accordance with D.AK. LR 83.1(d)(4)[A](vi), I certify I have read the District of Alaska local rules by visiting the court's website at http://www.akd.uscourts.gov and understand that the practices and procedures of this court may differ from the practices and procedures in the courts to which I am regularly admitted. A Certificate of Good Standing from a jurisdiction to which I have been admitted is attached. Pursuant to 28 U.S.C. §1746, I hereby declare under penalty of perjury that the foregoing information is true, correct, and accurate. Dated: April 20, 2017 s/Howard D. Olinsky (Signature of Applicant) Case 3:16-cv-00285-HRH Document 14 Filed 04/20/17 Page 3 of 4 Attachment to Pro Hac Vice Application for Howard D. Olinsky: Court Date of Admission In Good Standing? New York State 02/07/1986 YES State of Georgia 01/23/2014 YES United States Supreme Court 04/01/1991 YES Court of Appeals for 2nd Circuit 11/01/2002 YES Court of Appeals for 6th Circuit 10/15/2013 YES Court of Appeals for Federal Circuit 06/12/2007 YES U.S. Court of Veteran’s Appeals, Washington D.C. 06/12/2007 YES U.S.D.C., NDNY 04/22/1986 YES U.S.D.C., WDNY 01/29/2001 YES U.S.D.C., EDNY 03/21/2003 YES U.S.D.C., SDNY 03/25/2003 YES U.S.D.C., DCT 12/10/2010 YES U.S.D.C., NDFL 10/31/2011 YES U.S.D.C., EDMI 02/25/2013 YES U.S.D.C., WDMI 12/26/2013 YES U.S.D.C., EDTX 12/20/2013 YES U.S.D.C., EDAR 01/03/2014 YES U.S.D.C., WDAR 01/03/2014 YES U.S.D.C., MDGA 01/28/2014 YES U.S.D.C., NDIL 01/30/2014 YES U.S.D.C., NDGA 02/10/2014 YES U.S.D.C., EDWI 04/14/2014 YES U.S.D.C., NDTX 05/15/2014 YES U.S.D.C., DCO 06/18/2014 YES U.S.D.C., SDGA 06/02/2014 YES U.S.D.C., WDWI 07/03/2014 YES U.S.D.C., WDTX 09/15/2014 YES U.S.D.C., NDIN 08/04/2015 YES U.S.D.C., CDIL 09/24/2015 YES U.S.D.C., SDIL 09/25/2015 YES U.S.D.C., EDMO 04/13/2017 YES Case 3:16-cv-00285-HRH Document 14 Filed 04/20/17 Page 4 of 4

Certificate of Good Standing

AO 136 (Rev. 10/13) Certificate of Good Standing UNITED STATES DISTRICT COURT for the Northern District of New York CERTIFICATE OF GOOD STANDING I, Lawrence K. Baerman, Clerk of this Court, certify that HOWARD D. OLINSKY, Bar # 102297, was duly admitted to practice in this Court on April 22, 1986, and is in good standing as a member of the Bar of this Court. Dated at Syracuse, New York on March 27, 2017 (Location) (Date) Lawrence K. Baerman CLERK DEPUTY CLERK Case 3:16-cv-00285-HRH Document 14-1 Filed 04/20/17 Page 1 of 1

ORDER granting {{14}} Application of Non-Resident Attorney.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA NANCY A. BERRYHILL, Acting ROBERT CHARLES MARSHALL v. Commissioner of Social Security JUDGE H. RUSSEL HOLLAND CASE NO. 3:16-cv-0285-HRH PROCEEDINGS: ORDER FROM CHAMBERS The court has reviewed the motion for admission1 of non-resident attorney Howard D. Olinsky for permission to appear and participate in this case as counsel for plaintiff Robert Charles Marshall without the association of local counsel. The motion is granted. 1 Docket No. 14. Order from Chambers – Application of Non-Resident Attorney-1-Case 3:16-cv-00285-HRH Document 15 Filed 04/24/17 Page 1 of 1

MOTION to Remand to Social Security by Robert Charles Marshall.

1 PAUL B. EAGLIN Alaska Bar No. 9304010 2 Attorney for Plaintiff 3 Olinsky Law Group 300 South State Street 4 Syracuse, New York 13202 5 Telephone: (315) 701-5780 Fax: (315) 701-5781 6 peaglin@windisability.com 7 8 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ALASKA 9 Robert Charles Marshall, 10 11 Plaintiff, Case No. 3:16-CV-00285-HRH 12 vs. 13 14 PLAINTIFF’S OPENING BRIEF Nancy A. Berryhill, (SOCIAL SECURITY) 15 Acting Commissioner of Social Security, 16 Defendant 17 18 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF A SOCIAL SECURITY APPEAL 19 20 I. ISSUES PRESENTED FOR REVIEW 21 1. The ALJ’s residual functional capacity finding was the product of legal error and was unsupported by substantial evidence in several respects. 22 (A) The ALJ fails to weigh opinion evidence from Dr. Gould relating to Plaintiff’s 23 severe PTSD stemming from traumatic events experienced during military service. 24 (B) The ALJ fails to articulate "specific and legitimate reasons" for discounting the opinion of Plaintiff’s treating psychiatrist, Dr. Pace, when he opined to mental, 25 psychiatric limitations. 26 (C) The ALJ’s adverse credibility determination fails to provide specific, clear, and convincing reasons for discounting Plaintiff’s testimony. 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 1 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 1 of 27 1 (D) The ALJ’s analysis of Plaintiff’s 100% VA disability rating fails to "accurately reflect the approaches taken" in the SSA and VA disability systems. 2 3 II. STATEMENT OF THE CASE 4 (A) Procedural Posture & Statement of the Case On October 8, 2014, Plaintiff Robert Charles Marshall ("Plaintiff") applied for Title II 5 6 benefits ("DIB"). Administrative Transcript ("T") 170. He alleged disability began June 1, 2013 7 ("AOD"). Id. He remained insured for Title II through December 31, 2018 ("DLI"). T 20, 182. 8 Plaintiff’s applications were initially denied on January 7, 2016 by a state agency staffer and 9 single decision maker, Gerri McCaffrey ("SDM"), and state agency psychological consultant, 10 Dr. Laura Jones. T 86, 87, 93. 11 12 Plaintiff requested a hearing, occurring on July 7, 2016, before Administrative Law Judge 13 Paul T. Hebda ("ALJ"). T 39–79. On June 11, 2015, the ALJ found Plaintiff not disabled. T 14 18–33. On October 25, 2016, the Appeals Council denied Plaintiff’s request for review, leaving 15 the ALJ’s decision as the final agency decision. T 1–2. Plaintiff filed this action seeking review 16 17 of the ALJ’s decision. Dkt. No. 1. This Court has jurisdiction. 42 U.S.C. § 405(g). 18 The Social Security Administration ("SSA" or "Agency") has promulgated a five-step 19 sequential evaluation process for use in making disability determinations. See 20 C.F.R. § 20 404.1520(a). The ALJ’s decision described the five-step process. T 19–20. 21 At Step 1, the ALJ found Plaintiff had not engaged in substantial gainful activity 22 23 ("SGA") since his AOD. T 20 (Finding No. 2). At Step 2, the ALJ found Plaintiff suffered from 24 severe impairments of osteoarthritis ("OA") of shoulders; diabetes mellitus ("DM") without 25 complications; macrocytosis; degenerative disc disease ("DDD") of the cervical spine; alcohol 26 abuse; anxiety/post-traumatic stress disorder ("PTSD"); organic mental disorder/mild cognitive 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 2 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 2 of 27 1 impairment/white matter disease. Id. (Finding No. 3). The ALJ found Plaintiff’s obesity (BMI 2 40.67) non-severe. T 24. At Step 3, the ALJ found these impairments did not meet or equal a 3 Listing, and that Plaintiff exhibited mild restriction in the activities of daily living ("ADLs"), 4 5 mild deficits in social functioning, and moderate limitations in concentration, persistence, or 6 pace ("CPP"). T 22. 7 The ALJ’s residual functional capacity ("RFC") finding determined Plaintiff could 8 engage in "medium work," including the following limitations, 9 can lift/carry up to 20 pounds frequently and 50 pounds occasionally; he would 10 need a sit/stand option allowing him to alternat[e]sitting or standing positions 11 throughout the day; he can frequently climb ramps/stairs, stoop, kneel, crouch, and crawl; he can occasionally climb ladders, ropes, or scaffolds; he can 12 frequently reach overhead with the bilateral upper extremities; he can have frequent exposure to moving and hazardous machinery; he can have occasional 13 exposure to unprotected heights; and he would be limited to semi-skilled work. 14 T 23 (Finding No. 5). At Step 4, the ALJ relied upon vocational expert ("VE") testimony to find 15 Plaintiff could not return to past work. T 31 (Finding No. 6). The ALJ, again relying upon VE 16 17 testimony, thus reached Step 5 and found Plaintiff could engage in other work as a small parts 18 assembler, general office clerk, or recreation facility attendant. T 32. 19 (B) Plaintiff’s Age, Education, Work History, and Public Service 20 Plaintiff, a 26-year veteran of the Air Force, was born in 1962 and was 50 years old as of 21 his AOD. T 31. He has worked with the Air Force as a sergeant, aircraft mechanic, government 22 contracted project manager and onsite quality control manager. T 74–75 (VE testimony), T 177– 23 79 (wage records), T 187, 219 (work history reports). 24 25 (C) Summary of Opinion Evidence & ALJ’s Weighing of Opinion Evidence (1) Opinions from Non-Examining Sources 26 On January 7, 2016, non-examining state agency psychological consultant ("SAPC"), Dr. 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 3 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 3 of 27 1 Laura Jones, reviewed then available medical records and filed a psychiatric review technique 2 ("PRT") and mental RFC assessment ("RFCA"). T 86–89. Her PRT rated Plaintiff’s spine 3 disorders, major joint dysfunction, anxiety, and organic mental disorder as severe impairments, 4 5 and found that his impairments had mild impact upon his ADLs and social functioning, but 6 caused moderate difficulty in CPP. T 86. In her RFCA, Dr. Jones opined to two moderate 7 limitations in understanding and memory and one moderate limitation in CPP (carrying out 8 detailed instructions) and in a narrative explained that Plaintiff could "understand, retain, and 9 follow instructions and sustain attention to perform simple repetitive tasks" for full-time work. T 10 11 88–89. The ALJ accorded "great weight" to Dr. Jones except that, to the extent her opinions 12 limited Plaintiff to less than "semi-skilled work," he gave it "little weight." T 29. 13 On November 1, 2015, non-examining state agency medical consultant ("SAMC") Dr. 14 Jay E. Caldwell, MD, MPH, PhD, reviewed then available medical records and completed a 15 physical RFCA. T 844–51. Dr. Caldwell opined Plaintiff could (1) lift and carry 50 pounds 16 17 occasionally and 10 pounds frequently, (2) stand for 6 of 8 hours in a workday, (3) sit for 6 of 8 18 hours in a workday, (4) engage in frequent use of the upper extremities, (5) occasionally balance, 19 (6) engage in limited or frequent handling with the right hand, and (7) not tolerate concentrated 20 exposure to all environmental limitations, except vibration, which was further restricted to 21 22 avoidance of even moderate exposure. Id. The ALJ accorded "significant weight" to the opinion 23 of Dr. Caldwell, but noted that even "greater weight" was given to the ME, Dr. Lebeau. T 29. 24 At the hearing, a non-examining medical expert, Dr. Jack Lebeau, MD, testified. Infra 25 Section (III)(E)(1). The ALJ generally accorded his opinion great weight. T 28. 26 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 4 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 4 of 27 1 (2) Opinions from Examining Sources In September 2013 Plaintiff underwent neuropsychological evaluation by Dr. Richard 2 3 Fuller, PhD. T 278–85, 430–40. Dr. Fuller noted Plaintiff’s history of concussions due to 4 exposure to explosions in Iraq and Kuwait. T 278, 283. He noted Plaintiff no longer hunts or 5 "avoids hunting and fishing." T 280. Dr. Fuller reviewed Plaintiff’s medical history and 6 subjected Plaintiff to a battery of diagnostics, including an IQ test (FSIQ of 107), all of which 7 8 were generally in the average range and considered him to put forth "good effort" on exams. T 9 279–82. Dr. Fuller concluded that Plaintiff’s memory and attention problems were mild, but that 10 he forgot "an above average amount" of information after a short delay. T 283–84. He found his 11 cognitive difficulties "worse than expected" but "not severe" at this time. T 284. Dr. Fuller 12 opined that his white matter abnormalities on brain scans (see, e.g., T 943–44) was "progressive 13 14 in nature" and thus could not determine the full extent of his impairment or limitations without a 15 follow-up evaluation in 12–18 months to determine "the extent" of his cognitive difficulties. T 16 284–85. He felt Plaintiff should continue to rely on his cellphone for note taking to recall 17 important events and appointments, such as taking medications on time. T 285. The ALJ 18 19 provides a summary of the report of Dr. Fuller. T 25–26. 20 On April 24, 2014 a "disability benefits questionnaire" filled out for a private company 21 following an examination was filed by Mr. Jason Collins, PA-C. T 888–901, 902–09. Mr. 22 Collins indicates that Plaintiff experienced a limited range of motion in the shoulders and arms, 23 greater on the right than the left, with additional limitation during "flare-ups," and attributes the 24 25 limitations to "degenerative changes." T 900. He notes this impacted Plaintiff’s functional 26 capacity or "ability to work is trouble [sic] lifting or doing physical work with right arm." Id. 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 5 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 5 of 27 1 As for his thoracic, lumbar, and sacral spine injury and pain, Mr. Collins notes limitation to 2 range of motion (T 903–04), notes imaging evidencing facet arthropathy in the lumbosacral spine 3 (T 908), and that it impacted his ability to engage in "bending or lifting" with pain (T 909). The 4 5 ALJ accords this opinion "little weight." T 30. 6 On another "disability benefits questionnaire" for PTSD, another examining physician, 7 Dr. Michael A. Gould, PsyD, offered an opinion dated April 26, 2014. T 918–25. Dr. Gould 8 provided a narrative that explained Plaintiff’s PTSD related to his 26-year military service during 9 which he participated in combat operations in Afghanistan. T 924. Dr. Gould opined that 10 11 Plaintiff met all of the criteria for PTSD under the DSM-V, including, but not limited to, 12 avoidant behaviors, avoiding the memories of traumatic events causing his PTSD (T 922), 13 reporting depressive symptoms since retiring form service (T 921), involuntary and intrusive 14 memories (T 922), marked psychological reactions to internal or external cues that symbolize or 15 resemble his traumatic events (Id.), marked diminished interest or participation in significant 16 17 activities (T 923), feelings of estrangement or detachment from others, persistent inability to 18 experience positive emotions (Id.), hypervigilance and "problems with concentration" (Id.). He 19 further found that his symptoms included depression, anxiety, and panic attacks "more than once 20 a week," and difficulty adapting in stressful circumstances "including work or a work-like 21 22 setting." Id. The ALJ does not summarize or weigh the opinion of Dr. Gould. T 18–33. 23 On December 3, 2015, Plaintiff underwent psychological consultative examination 24 ("CE") by state agency consultant, Dr. Michael C. Rose, PhD. T 852–62. He reviewed three 25 medical records prior to his CE, including an MRI of the brain (see, e.g., T 943–44) and Dr. 26 Fuller’s report. T 852. Dr. Rose noted the presence of hand tremors during examination. T 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 6 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 6 of 27 1 853. He recounted Plaintiff’s history of brain injury and PTSD from his experience in the 2 military. T 854, 860. Dr. Rose performed a battery of diagnostics, including IQ and memory 3 testing, with scores in the average range for his age. T 856–60. His executive functioning, 4 5 however, was "significantly sub-average, indicating the presence of executive functioning 6 deficits." T 860. He also scored in the "moderately low" range or "two standard deviations 7 below the mean for his age" in a diagnostic (Symbol Digit Modalities Test) for detecting 8 neurological impairment. Id. He diagnosed mild cognitive impairment and PTSD. T 861. Dr. 9 Rose indicated two abnormalities: (1) "slight cognitive slippage" in his IQ scores (down to 96 10 11 from Dr. Fuller’s 107), and (2) "slight regression" in intellectual functioning. T 860. Dr. Rose 12 opined as follows, 13 Mr. Marshall has the ability to understand, retain and follow instructions and 14 sustain attention to perform simple repetitive tasks. Concentration, persistence and pace appear to be generally within the average range. There are no restrictions 15 on daily activities. There are no apparent difficulties in his ability to maintain appropriate social functioning. There are no indications from the assessment 16 findings he presents a risk to emotionally deteriorate or psychologically 17 decompensate in work like situations. He can probably respond appropriately to coworkers, supervisors and the public, and he appears able to meet work demands 18 with respect to attendance, safety, and following procedures and policies. He can 19 accept supervision that is concrete and well explained. His ability to perform functional activities such as sitting, standing, moving about, lifting, carrying and 20 handling objects appears generally satisfactory. He has ability to manage funds independently. 21 22 T 861. The ALJ generally accorded "great weight" to Dr. Rose’s opinion, except to the extent it 23 restricted Plaintiff to simple work. T 30. 24 (3) Opinions from Sources providing Treatment and the VA 25 In January of 2014, Plaintiff received a disability rating from the VA of 100% for service 26 connected disabilities including, but not limited to, obstructive sleep apnea (50%), PTSD (50%), 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 7 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 7 of 27 1 right shoulder degenerative changes (20%), and tendonitis of the left shoulder (10%). T 297–98. 2 The ALJ accorded this opinion "minimal weight." T 31. 3 On April 7, 2016, Plaintiff’s treating psychiatrist, Dr. Joseph Pace, MD, provided a 4 5 medical source statement ("MSS") regarding Plaintiff’s physical (T 1083–84) and mental (T 6 1086–88) functioning. In the physical MSS, Dr. Pace opined Plaintiff’s PTSD, cognitive 7 disorder, and ADHD would "constantly" interfere with his ability to maintain attention and 8 concentration for "simple" tasks "every day." T 1083. He opined Plaintiff (1) could walk 3 city 9 blocks before experiencing pain, (2) could sit for 4 of 8 hours in a workday, (3) stand or walk for 10 11 2 of 8 hours in a workday, (4) required unscheduled breaks, lasting 15 minutes in duration, every 12 hour of the workday, (5) had no limitation in the use of his hands, and (6) would miss work 1–2 13 times per month due to his impairments. T 1083–84. In the mental MSS, Dr. Pace opined to six 14 marked limitations in understanding and memory and CPP, including marked impairment in 15 understanding and carrying out simple work tasks, and working with others without being 16 17 distracted by them. T 1086–87. He further found Plaintiff to experience moderate limitations in 18 many remaining areas of CPP and found 2 moderate limitations in adaptation in appropriately 19 responding to workplace changes and setting realistic goals or making plans independently of 20 others. T 1086–88. He again opined to up to 2 days of missed work per month. T 1087. The 21 22 ALJ accorded "little weight" and "discounted" Dr. Pace’s physical MSS due, in part, to his 23 treatment of psychiatric impairments solely. T 29. As for his mental MSS, the ALJ accorded 24 Dr. Pace’s opinion "little weight" because it was "not consistent" with treatment notes reflecting 25 "unremarkable" findings and Plaintiff’s completion of college coursework or "doing well in 26 classes." T 30. 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 8 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 8 of 27 1 (D) Concise Overview of Treatment Records Plaintiff, a veteran of the Air Force, received the bulk of his care from institutions 2 3 associated with the Department of Veterans Affairs ("VA"), with some overlap or duplicative 4 records. T 304–05, 470–71 (summarizing treatment records with table of contents), T 593–778, 5 781–843983–1082, 1090–1141 (treatment records). Just prior to his AOD, in February and 6 March of 2013, Plaintiff received dermatological treatment for rapidly growing skin cells (i.e. 7 8 diagnosis of actinic keratosis, or skin cells damaged by UV rays, a potential precursor to skin 9 cancer), treated with a topical solution, fluorouracil, which inhibits the growth of abnormal skin 10 cells. T 329, 333–34. He also experienced pain in his wrist, with steroid injections 11 recommended for treatment. Id. 12 Following his AOD, on June 13, 2013, an MRI of the cervical spine revealed multi-level 13 14 DDD with osteophytes (i.e. spurring) and neural foraminal narrowing (i.e. potential nerve 15 involvement). T 306–07. Plaintiff complained of pain in his neck and shoulders limiting his 16 range of motion and ability to use his hands, including feeling "numbness" and "tingling," and 17 causing headaches. T 309. His diagnoses included cervical radiculopathy (i.e. nerve 18 19 involvement to the upper extremities). T 312. In July of 2013 his physical therapist, Sundi 20 Hondl, PT, found limited range of motion in the cervical spine, reduced muscle strength, and 21 reduced grip strength, and that his pain had interference with his "ability to sleep." T 449–50. 22 On September 19, 2013, a neurologist, Dr. Jeffrey Sponsler, MD, evaluated Plaintiff for memory 23 deficits. T 273. He noted no present alcohol use, existing diagnoses for OA, depression, DM, 24 25 GERD, hypertension, and chronic neck and back pain. T 274. He found a 2013 brain MRI (see, 26 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 9 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 9 of 27 1 e.g., T 943–44) was essentially normal and noted mild to moderate Alzheimer disease, and a 2 prescription for Aricept® (used to treated dementia). T 276. 3 On January 17, 2014, Plaintiff visited Dr. Matt Peterson, MD, who noted persistent neck 4 5 and shoulder pain, previously treated with multiple palliative injections (cervical epidural steroid 6 injections or "CESI") and documented limitation to range of motion in the cervical spine. T 7 286–87. Plaintiff’s CESI were performed by Dr. J. Thomas Grissom, MD in late 2013. T 291– 8 94. See also T 423–25 (noting decreased range of motion secondary to neck pain, treated with 9 CESI). 10 11 In March and April 2015 doctors indicated that an earlier (November 2014) x-ray of the 12 right shoulder (T 473–74) revealed the presence of right AC-joint osteoarthritis, and tiny 13 ossification next to the humeral head suggestive of "rotator cuff tendinopathy," for which he had 14 received palliative injection and occupational therapy ("OT") intended to restore his limited 15 range of motion and pain when sleeping. T 399, 404. See also T 418 (right shoulder pain 16 17 disrupting sleep in November 2015). 18 As for his mental, nonexertional impairments, since 2010, Plaintiff has received 19 psychological treatment from physicians and staff at the VA, including Dr. Joseph Pace, MD, 20 whom he has seen since at least October 5, 2010, when he prescribed psychotropic 21 22 antidepressant (Wellbutrin®/bupropion) and a central nervous system stimulant for ADHD 23 (Dexedrine), among other medications, for Plaintiff’s PTSD and depression. T 957. 24 In April of 2014, Plaintiff returned to Dr. Pace’s care, and the two communicated 25 electronically about his lack of sleep, for which Dr. Pace prescribed another psychotropic 26 antidepressant used for patients who cannot sleep (trazodone) and an SSRI antidepressant 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 10 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 10 of 27 1 (Zoloft®). T 970–71, 975. At this time, Dr. Pace conducted a PTSD diagnostic exam, scaling 2 Plaintiff’s symptoms on a scale of 1 (not at all) to 4 (quite a bit) or 5 (extremely). T 973–74. Dr. 3 Pace rated Plaintiff’s symptoms as a'4’ on nearly every category of assessment and diagnosed 4 5 PTSD, including avoidance of thoughts and activities reminding him of his trauma, feeling 6 emotionally cut-off or numb to others, experiencing irritability and difficulty concentrating. Id. 7 In addition to treatment from Dr. Pace, Plaintiff also underwent counseling and 8 psychotherapy from Mat-Su Health Services (T 864–83, 1142–44) where his initial appointment 9 in January of 2016 discussed his military background including combat and related depression 10 11 and anxiety following his return from combat, VA disability, and attending college courses (T 12 880–81). Treatment notes in 2016 reflect difficulty with concentration, guilt from his inability to 13 work or "not working," and addressed his frustration with his failure to become a chief in the 14 military. T 865, 869, 872, 1142. He expressed his need to "delve into the war experiences" 15 during therapy. T 874. 16 17 (E) Testimony Regarding Plaintiff’s Ability to Work (1) Medical Expert Testimony 18 The ALJ began the hearing with testimony from a state agency consultant, Dr. Jack 19 Lebeau, MD (the "ME"), a doctor of cardiology and internal medicine. T 45, 264. The ME 20 reviewed the medical records prior to the hearing, and testified that Plaintiff’s impairments 21 22 included non-insulin dependent DM, glaucoma (which was not "yet" diagnosed), OA in the 23 shoulders, hypertension, alcoholism, macrocytosis, and "cervical disc disease" without evidence 24 of radiculopathy. T 47–48. He felt the MRI findings of white matter abnormalities were 25 common for elderly people and "may not be of any relevance to the final decision that has to be 26 made here." T 48, 56. When discussing alcoholism, the ME was "not saying it it’s disabling or 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 11 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 11 of 27 1 anything else, but that we should at least be aware" of it. T 57. He also speculated that the ALJ 2 would not find alcoholism outcome determinative, "I would guess that alcoholism, itself, is not 3 going to be a factor in what comes out of this." T 58. 4 5 The ME testified that Plaintiff did not meet or equal a listing. T 49. When asked about 6 the limitations from his impairments, the ME testified that, due in part to arthritis, "he can 7 continuously lift 10 pounds. He can frequently lift up to 20. More than that, I, you know, 20 to 8 50, that would be occasional at most. And as the 50 to 100, I would say no." T 50. He opined 9 Plaintiff could sit 2 hours at a time and 7 of 8 hours in a workday, stand 1 hour at a time and 4 of 10 11 8 hours in a workday, walk 0.5 hours at a time and 2 of 8 hours in a workday. T 51. He further 12 determined the following postural and environmental limitations 13 Feet is not limited. Postural activities, he can do stairs and ramps frequently, 14 ladders and scaffolds occasionally. He doesn't have a balance problem. I think that would be right. Balance is continuous. Stoop, kneel, crawl, crouch, that 15 would be frequently. 16.... 17 Environmental limitations, I don’t see any reason here for not allowing him 18 unprotected heights. That always concerns me because that’s serious business up 19 there. But I don't--no. I don’t see any reason that he could not do that. Let’s just say occasionally. Now, moving mechanical parts, frequently. Motor vehicle 20 operation, continuous. And then, the rest, the actual environmental temperatures and air pollutants and so forth, I would just say continuously. And then, very loud, 21 heavy traffic as far as noise goes, anything beyond that has to with real protection. 22 T 50–51. As for the ability to engage in overhead reaching, Dr. Lebeau at first stated Plaintiff’s 23 OA would result in the ability to engage in "overhead reaching" on an "occasional but not 24 25 frequent" basis (T 49–50) but then later, without explanation, changes his testimony to 26 "frequently" overhead reaching (T 51). 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 12 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 12 of 27 1 When asked about the areas in which his opinion conflicted with that of the CE, Dr. 2 Caldwell, particular with respect to environmental limitations, the ME offered some 3 equivocation about his opinion, testifying that he made the assumption that the individual is 4 5 properly attired for work. T 53–54. The ME found Dr. Pace’s treating source opinion regarding 6 physical limitations T 1083–85) went "a little further than he should go" because he was not 7 treating "the physical" so the ME "discounted" that part of Dr. Pace’s opinion. T 54. 8 (2) Plaintiff and Third Party Testimony 9 The ALJ next heard testimony from Plaintiff. The ALJ inquired about his retirement and 10 VA disability income. T 59, 69. The ALJ focused upon his participation in educational 11 coursework pursuant to the GI Bill. T 59. When asked about engaging in coursework to 12 complete his B.S. degree despite his mental impairments, Plaintiff testified (1) he has a lot of 13 14 support to do the work, (2) his doctors suggested engaging in coursework held some therapeutic 15 value, "suggested that I should do something to keep my brain alive because they said if you just 16 sit around, you're going to turn into a vegetable quicker," (3) that he could "read a paragraph 50 17 times and I still have no idea what it says anymore" and so he relies on a computer program that 18 19 reads documents to him, (4) he receives poor grades, "If I were making a C it would be by the 20 grace of God," (5) that he receives further accommodations in taking tests at home which permits 21 "extra time," and (6) that it took him 30 hours to complete a 5-page paper. T 60–62. When 22 asked what impact his receiving a B.S. degree should have on his ability to work, he explained to 23 the ALJ, "if I mess up in school, the only thing I've lost is a grade... But if I screw up at work, I 24 25 can get fired." T 63. 26 As for the limitations from his impairments, he testified that his "memory’s the big thing" 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 13 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 13 of 27 1 that he has lost, and he trailed off during his response because he could not "remember" what he 2 was discussing without a prompt from the ALJ. T 65. He testified to becoming "frustrated" with 3 forgetting conversations he had in the workplace and with his wife. T 65–66. He experiences a 4 5 great deal of difficulty with concertation, and specifically cited the following examples of his 6 impairment in focus and concentrating: problems with reading comprehension, losing track of 7 the number of objects he’s counted, requiring GPS to guide him on car trips, and forgetting to 8 pay bills. T 66–67, 68. He relied upon notes he had taken down in his iPhone® for passwords 9 and other matters, and that he lost the information when he recently plugged the device into his 10 11 computer and iTunes® "got a hold of it, and reset it to the new factory settings or whatever." T 12 68. He also testified to limitations in keeping his balance. T 69–70. His OA prevented him 13 from making a fist and limited his ability to use his hands. T 70. He no longer engages in 14 hunting, fishing, or yardwork due to his impairments. T 71. 15 Prior to the hearing, Plaintiff’s spouse, Mrs. Kimberly Marshall, provided a third party 16 17 function report (T 210–18) in which she observed that Plaintiff’s early onset dementia and PTSD 18 had resulted in forgetfulness in several areas of his life (T 210, 211, 216) and his arthritis 19 affected his ability to engage in many physical tasks (T 211, 215). 20 (3) Vocational Expert Testimony 21 The ALJ concluded the hearing with testimony from a VE, Mr. Daniel LaBrosse, 22 inquiring about Plaintiff’s work history and whether a hypothetical individual with Plaintiff’s 23 age, education, work background, and impairments could engage in work. T 71–79, 267–69. 24 25 The ALJ posited the first hypothetical as follows, 26 perform medium level work... That the lifting and carrying would be up to 20 pounds, not 25 pounds frequently. He would have a frequent climbing of ramps 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 14 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 14 of 27 1 and stairs, stooping, kneeling, crouching, and crawling. Occasional climbing of ladders, ropes, and scaffolding. Overhead reaching bilateral upper extremities 2 would be at the frequent level. They would have frequent exposure to moving 3 machinery and hazardous machinery, and would have occasional exposure to unprotected heights. Work would be limited to--up to semi-skilled work. 4 5 T 75–76. The VE found that this hypothetical precluded Plaintiff’s past work. T 76. The ALJ 6 included a "sit/stand option" permitting one to "alternate sitting or standing" throughout the 7 workday, and the VE testified this limitation would eliminate medium work, but that light duty 8 jobs of small parts assembler, general office clerk, or counter attendant for a recreation facility. 9 T 77. This is consistent with the ALJ’s Step 5 finding. T 32.1 10 11 Upon cross-examination from counsel, the VE testified that the inability "to understand 12 and remember short and simple instructions or even detailed instructions" would preclude all 13 work. T 77–78. 14 III. ARGUMENT 15 This Court reviews the record to determine whether the agency applied proper legal 16 17 standards and whether substantial evidence supports the ALJ’s decision. 42 U.S.C. § 405(g). 18 Substantial evidence means more than a scintilla, "[i]t means such relevant evidence as a 19 reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 20 U.S. 389, 400 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 229 (1938)). 21 22 (1) The ALJ’s residual functional capacity finding was the product of legal error and was unsupported by substantial evidence in several respects. 23 (A) The ALJ fails to weigh opinion evidence from Dr. Gould relating to Plaintiff’s severe PTSD stemming from traumatic events experienced 24 during military service. 25 26 1 While the ALJ confusingly refers to these weight restrictions as "medium" work, they are, in fact, more consistent with "light" work (compare 20 C.F.R. § 404.1567(b) with Id. at § 27 404.1567(c)) and the Step 5 determination and testimony of the VE found as much (T 76–77). 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 15 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 15 of 27 1 Social Security regulations require ALJs to review "all of the relevant medical and other 2 evidence" upon making a determination of disability. 20 C.F.R. § § 404.1545(a)(3), 3 416.945(a)(3). Specifically, with respect to opinion evidence, the regulations state "[r]egardless 4 5 of its source, we will evaluate every medical opinion we receive." Id. at § § 404.1527(c), 6 416.927(c). See also SSR 96-6p (ALJ "may not ignore" opinions from state agency medical and 7 psychological consultants). 8 When weighing the opinions of consultative examining physicians, the ALJ must 9 articulate "specific and legitmate reasons" for discounting the treating sources opinion. See, e.g., 10 11 Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995); Hill v. Astrue, No. 3:12-CV-0064-HRH, 12 2012 WL 12882829, at *5 (D. Alaska Dec. 7, 2012) (ALJ erred in rejecting CE opinion without 13 articulating specific and legitimate reasons for doing so) (J. Holland). Failing to weigh the 14 opinion of a consulting, examining physician constitutes reversible error under the "specific and 15 legitimate" rubric and the Ninth Circuit has not hesitated to "credit-as-true" opinion evidence 16 17 that the ALJ’s decision ignores. Lester, 81 F.3d at 834 (9th Cir. 1995) ("Where the 18 Commissioner fails to provide adequate reasons for rejecting the opinion of a treating or 19 examining physician, we credit that opinion'as a matter of law.’"); Garrison v. Colvin, 759 F.3d 20 995, 1020, 1022 (9th Cir. 2014) ("credit-as-true rule applies to medical opinion evidence, not 21 22 only claimant testimony"). The Ninth Circuit has also remanded to the Commissioner where the 23 ALJ provides no analysis of opinions beyond conclusory, boilerplate findings. See generally 24 Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) ("not a conclusory statement... [and] the 25 ALJ's disregard for [it] was not harmless error."). Consistent with Ninth Circuit precedent, this 26 Court has applied the credit-as-true rule to opinions the ALJ failed to weigh. See Darling v. 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 16 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 16 of 27 1 Colvin, No. 3:13-cv-0187-HRH, Dkt. No. 18, at *28—30 (D. Alaska Mar. 19, 2014 (J. Holland) 2 (lay witness vocational rehabilitation job site supervisor in four-month trial placement). 3 In this case, the ALJ fails to consider the opinion of Dr. Gould, by offering no summary, 4 5 analysis, or weighing of his examining source opinion. Supra Section (II)(C)(2) (summarizing 6 opinion at T 918–25). Examining Plaintiff in April of 2014, Dr. Gould, a psychiatrist, opined 7 that Plaintiff met the criteria of a diagnoses for PTSD, and that he exhibited marked diminished 8 interest or participation in significant activities, panic attacks "more than once a week," difficulty 9 with concentration, and problems with adapting in stressful circumstances "including work or a 10 11 work-like setting." Id. 12 The identification of Plaintiff’s deficit in adapting to stress in a work setting, difficulty 13 concentrating, and marked limitation in participation in activities should have altered the ALJ’s 14 analysis at both Steps 3 and when formulating the RFC. At Step 3, the ALJ’s failure to consider 15 the opinion of Dr. Gould, in conjunction with remaining treatment opinion evidence, including 16 17 notes of sleep deprivation (from multiple treatment sources) and marked limitations in many 18 areas of functioning (from treating psychiatrist Dr. Pace), could have resulted in a finding that 19 Plaintiff met the listing for anxiety-related disorders, Listing 12.06. See 20 C.F.R. pt. 404, 20 Subpt. P, App. 1, § 12.06, ¶ ¶ A & B (diagnosis of (A) anxiety (i.e. PTSD) with symptoms of 21 22 sleep disturbance, difficulty concentrating, restlessness, and fatigue (noted throughout treatment 23 records), with (B) extreme and marked limitations opined by Dr. Pace). The mere existence of 24 an additional examining source opining to the severity of Plaintiff’s PTSD following his service 25 in a war zone lent further credence to the treating source’s opinion, and thereby should have 26 resulted in the ALJ according Dr. Pace’s mental MSS more weight. See Burt v. Colvin, 611 F. 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 17 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 17 of 27 1 App'x 912, 914 (9th Cir. 2015) (failure to weigh CE opinion not harmless because it could have 2 "formed the basis" for a finding of disabled). See also infra Section (III), Argument (1)(B). This 3 is particularly true given the VA’s rating of 100% disability, primarily based upon (50%) 4 5 Plaintiff’s PTSD. Supra Section (II)(C)(3). Moreover, this Court and the Ninth Circuit have 6 credited as true such opinion evidence that the ALJ ignores and remanded for payment of 7 benefits. See Lester, 81 F.3d at 834; Garrison, 759 F.3d at 1020, 1022. Even if this Court did 8 not credit-as-true and remand for payment of benefits, it would be appropriate to remand to the 9 Commissioner for consideration of Dr. Gould’s opinion in the first instance. Hill, 698 F.3d at 10 11 1160. In short, the ALJ’s utter failure to articulate specific and legitimate reasons for rejecting 12 the opinion of Dr. Gould requires remand, either for benefits or for further administrative 13 proceedings in this case. 14 (B) The ALJ fails to articulate "specific and legitimate reasons" for 15 discounting the opinion of Plaintiff’s treating psychiatrist, Dr. Pace, when he opined to mental, psychiatric limitations. 16 SSA Regulations articulate guidelines for considering opinion evidence from treating 17 sources and "generally" accord "more weight" to treating sources due to their "detailed, 18 19 longitudinal picture" of a claimant’s impairment(s) and "unique perspective" of the medical 20 evidence. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The Ninth Circuit has construed these 21 regulations to hold that "[w]here the treating doctor’s opinion is not contradicted by another 22 doctor, it may be rejected only for clear and convincing reasons supported by substantial 23 evidence in the record. Even if the treating doctor’s opinion is contradicted by another doctor, 24 25 the administrative law judge (ALJ) may not reject this opinion without providing specific and 26 legitimate reasons supported by substantial evidence in the record." Orn v. Astrue, 495 F.3d 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 18 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 18 of 27 1 625, 632 (9th Cir. 2007) (emphasis added). See also Lester v. Chater, 81 F.3d 821, 830–31 (9th 2 Cir. 1995) ("[L]ike the opinion of a treating doctor, the opinion of an examining doctor, even if 3 contradicted by another doctor, can only be rejected for specific and legitimate reasons that are 4 5 supported by substantial evidence in the record.") (emphasis added) (citing Pitzer v. Sullivan, 6 908 F.2d 502, 506 (9th Cir. 1990) and Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)). 7 Indeed, the Ninth Circuit has indicated that when the ALJ accords less than dispositive weight to 8 a treating opinion because it is contradicted by other evidence, the ALJ may not "simply 9 disregard it" and "[t]he ALJ is required to consider the factors" set out in the regulations for 10 11 weighing opinion evidence. See Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014). See 12 also Garrison v. Colvin, 759 F. 3d 995, 1012—13 (9th Cir. 2014) (An ALJ "errs when he rejects 13 a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting 14 without explanation that another medical opinion is more persuasive, or criticizing it with 15 boilerplate language that fails to offer a substantive basis for his conclusion."). The Ninth 16 17 Circuit has also repeatedly held that an ALJ’s decision is not supported by substantial evidence 18 where he relies upon the assessments of non-examining physicians that have not reviewed the 19 entire record. See Lester, 81 F.3d at 831 ("opinion of a nonexamining physician cannot by itself 20 constitute substantial evidence that justifies the rejection of the opinion of either an examining 21 22 physician or a treating physician."); Treichler v. Comm'r SSA, 775 F.3d 1090, 1106, n.8 (9th Cir. 23 2014) ("the conclusions of the non-treating and non-examining physicians did not create a 24 factual issue that required resolution by the agency") (emphasis added). 25 On April 7, 2016, Plaintiff’s treating psychiatrist, Dr. Pace, provided two MSSs, one for 26 Plaintiff’s physical limitations, and another for his mental, psychiatric restrictions. Supra 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 19 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 19 of 27 1 Section (II)(C)(3) (summarizing opinions of Dr. Pace). The ALJ, consistent with the testifying 2 non-examining medical expert, Dr. Lebeau (doctor of cardiology and internal medicine), rejected 3 the physical MSS provided by Dr. Pace because it was inconsistent with treatment records and 4 5 because he offered no treatment of Plaintiff’s physical impairments. T 29. Plaintiff need not 6 address the propriety of the manner in which the ALJ’s summarily rejected the physical MSS of 7 Dr. Pace,2 because the ALJ failed to provide specific and legitimate reasons, supported by 8 substantial evidence, for rejecting Dr. Pace’s mental, psychiatric limitations. See, e.g., Orn, 495 9 F.3d at 632; Garrison, 759 F. 3d at 1012—13. 10 11 First, Dr. Pace, through the VA, provided extensive treatment for Plaintiff’s PTSD and 12 depression, beginning as early as 2010, and continuing through the date of the ALJ’s decision. 13 Supra Section (II)(D). The record contains regular electronic communication between the two 14 men regarding Plaintiff’s impairments. Id. Throughout treatment with Dr. Pace and his 15 counselors at Mat-Su Health Services, Plaintiff articulated thought disturbances related to his 16 17 PTSD, related an inability to concentrate, forgetfulness/problems with memory, and that his 18 memories disturbed his sleep. Id. The ALJ, rather than credit this evidence as consistent with 19 the opinion of Dr. Pace that found Plaintiff markedly limited in his ability to concentrate and 20 work with others, and moderately limited in his ability to adapt to a changing workplace, simply 21 22 23 2 See Gayheart v. Comm’r SSA, 710 F.3d 365, 377 (6th Cir. 2013) (("conclusion... opinions'are not well-supported by any objective findings’ is ambiguous... substantial 24 evidence must consist of more than the medical opinions of the nontreating and nonexamining doctors... [s]uch a rule would turn on its head the regulation’s presumption of giving greater 25 weight to treating sources."). Here, the pro forma rejection of Dr. Pace’s physical MSS fails to 26 examine, for example, the consistency (20 C.F.R. § 404.1527(c)(4)) between his opinion and the opinion of Mr. Collins (supra Section (II)(C)(2)) or the treatment notes of Sundi Hondl, PT, 27 regarding limitations in range of motion, reduced strength, and so on. 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 20 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 20 of 27 1 defers to the findings of non-examining SAPC, Dr. Jones (supra Section (II)(C)), which does not 2 constitute substantial evidence in support of the RFC. See Lester, 81 F.3d at 831 ("opinion of a 3 nonexamining physician cannot by itself constitute substantial evidence that justifies the 4 5 rejection" of treating source); Treichler, 775 F.3d at 1106, n.8 ("conclusions of the non-treating 6 and non-examining physicians did not create a factual issue that required resolution by the 7 agency"). The ALJ also alludes to the opinion of examining sources, Drs. Fuller and Rose, 8 however, the ALJ utterly fails to note the deterioration in functioning that occurred between the 9 two CEs assessments, as noted by Dr. Rose noting Plaintiff’s white matter abnormalities and his 10 11 "slight cognitive slippage" in his IQ scores and "slight regression" in intellectual functioning, 12 something Dr. Fuller had previously noted might occur. Supra Section (II)(C)(2). Moreover, the 13 ALJ, despite purporting to fully credit these two CE opinions, appears to reject both CE’s when 14 they limit Plaintiff to "simple" work (Id.), thereby further rendering the RFC (and Step 5 15 determination) unsupported by substantial evidence. Zavalin v. Colvin, 778 F.3d 842, 847 (9th 16 17 Cir. 2015) (reasoning level of 3 is inconsistent with "simple" or "routine" or "repetitive" work 18 under the DOT); Rounds v. Comm'r SSA, 807 F.3d 996, 1003 (9th Cir. 2015) (same). The ALJ 19 utterly fails to so much as discuss a third CE from Dr. Gould that was consistent with Dr. Pace’s 20 opinion, and thereby erred. Burt, 611 F. App'x at 914 (failure to weigh CE opinion not harmless 21 22 because it could have "formed the basis" for a finding of disabled). 23 Second, the ALJ fails to recite (much less apply) the regulatory factors (20 C.F.R. § 24 404.1527(c)) for assessing the opinions of Plaintiff’s treating psychiatrist, Dr. Pace, and thereby 25 failed to provide "specific and legitimate" reasons for rejecting his opinions issued on and after 26 March 28, 2013. Orn, 495 F.3d at 632; Ghanim, 763 F.3d at 1161; Garrison, 759 F. 3d at 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 21 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 21 of 27 1 1012—13. For example, Dr. Pace, a psychiatrist specializing in Plaintiff’s impairments (20 2 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5)) had personally examined (Id. at § 404.1527(c)(1)) and 3 treated Plaintiff for several years (Id. at § 404.1527(c)(2)(i)), including prescribing psychotropic 4 5 antidepressants (Id. at § 404.1527(c)(2)(ii)), and was generally consistent with treatment notes 6 from another source, Mat-Su Health Services, providing psychotherapy for PTSD related to his 7 memories from combat (Id. at § 404.1527(c)(4)). Instead of examining these factors, the ALJ 8 erroneously concludes that Dr. Pace’s opinion was "inconsistent" with his treatment records, 9 which the ALJ characterizes as "unremarkable" without providing a citation to such treatment 10 11 records supporting that proposition or how PTSD following combat, treated with psychotherapy 12 and psychotropic medications, could accurately be portrayed as "unremarkable" or whether they 13 were treatment notes from "good" as opposed to "bad" days. See generally Ghanim, 763 F.3d at 14 1162 ("occasional symptom free-periods... are not inconsistent with disability.") (quoting 15 Lester, 81 F.3d at 833). 16 17 For the foregoing reasons, the ALJ’s failure to consider all of the opinion evidence 18 related to Plaintiff’s psychiatric impairments (i.e. the opinion of Dr. Gould), and failure to 19 engage in the analysis called for by the regulatory factors, resulted in a failure to support the 20 decision to discount the psychological MSS of Dr. Pace with substantial evidence, and thereby 21 22 requires remand. 23 (C) The ALJ’s adverse credibility determination fails to provide specific, clear, and convincing reasons for discounting Plaintiff’s testimony. 24 The ALJ can reject the claimant’s testimony about the severity of her symptoms only by 25 offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 26 1284 (9th Cir. 1996). See also Burrell v. Colvin, 775 F.3d 1133, 1136—37 (9th Cir. 2014). The 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 22 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 22 of 27 1 SSA regulations provide consideration of several factors in making this judgment, including the 2 claimant’s work record and observations of treating and examining physicians and other third 3 parties regarding, among other matters, the nature, onset, duration, and frequency of the 4 5 claimant’s symptom; precipitating and aggravating factors; functional restrictions caused by the 6 symptoms; and the claimant’s daily activities." Smolen, 80 F. 3d at 1284 (citing SSR 88-13). 7 The ALJ errs where she "simply stated her non-credibility conclusion and then summarized the 8 medical evidence supporting her RFC determination. This is not the sort of explanation or the 9 kind of'specific reasons’ we must have in order to review the ALJ’s decision meaningfully." 10 11 Brown-Hunter v. Colvin, 806 F.3d 487, 493–94 (9th Cir. 2015). 12 While the activities of daily living may be considered, many activities of daily living may 13 not transfer to a "work environment where it might be impossible to rest periodically or take 14 medication." See Smolen, 80 F. 3d at 1284, n. 7; Vertigan v. Halter, 260 F.3d 1044, 1050 (9th 15 Cir. 2001). Additionally, a claimant need not be bed-ridden or "completely incapacitated" to 16 17 qualify for DIB. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); Vertigan, 260 F.3d at 1050. 18 The ALJ’s adverse credibility finding offers little more than a pro forma finding that 19 Plaintiff’s testimony was "not entirely consistent" with the medical records or did not 20 "substantiate" claims of diminished mental functioning due to white matter abnormalities. T 24, 21 22 25. As such, the ALJ failed to support his credibility finding with specific reasons, and thereby 23 erred. Brown-Hunter, 806 F.3d at 493–94. Moreover, to the extent that the ALJ attempted to tie 24 his findings to medical evidence, the ALJ failed to recite many records supporting Plaintiff’s 25 claims, including the opinion of Dr. Gould or limited range of motion findings of therapist 26 Hondl, and thereby erred in failing to discuss evidence supporting a positive credibility finding. 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 23 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 23 of 27 1 See Cotton v. Astrue, 374 F. App'x 769, 772–73 (9th Cir. 2010) (remanding ALJ credibility 2 decision engaging in "selective reliance" of medical records) (citing Tommasetti v. Astrue, 533 3 F.3d 1035, 1039 (9th Cir. 2008)). Indeed, the ALJ fails to mention also that Plaintiff was racked 4 5 with "guilt" over his inability to work, something he discussed with therapists at length, yet the 6 ALJ neglects to mention in his pro forma adverse credibility finding. Supra Section (II)(D). 7 Finally, the ALJ utterly fails to consider perhaps the most relevant credibility factor of 8 all: Plaintiff’s strong work history, including 26-years of service as a member of the Air Force, 9 defending the country in multiple combat zones. See Rivera v. Schweiker, 717 F.2d 719, 725 (2d 10 11 Cir. 1983) (work history as important credibility factor). This factor should have figured much 12 more prominently in this case given that Plaintiff’s service to his country resulted in his severe 13 PTSD, resulting in his 100% disability rating from the VA and forming the basis of his SSA 14 disability application. Instead, the ALJ mischaracterized Plaintiff’s testimony, particularly with 15 respect to the immense difficulty he faced while trying to earn a bachelor’s degree (supra 16 17 Section (II)(E)(2) (summarizing Plaintiff’s testimony)) and simply held him not credible because 18 he would hunt, fish, or attend school, all of which were findings unsupported by substantial 19 evidence in this case in Dr. Fuller’s report (T 279, 280) and treatment notes after his AOD (T 20 865, 999) noted difficulty with or the inability to hunt or fish. See generally Hutton v. Astrue, 21 22 491 F. App'x 850 (9th Cir. 2012) (remanding where the ALJ mischaracterized hearing testimony 23 regarding claimant’s PTSD). Had the ALJ properly credited Plaintiff’s testimony, he would 24 have found him disabled based upon the limitations that resulted from his impairments, including 25 inability to concentrate, reading difficulty, loss of memory and forgetfulness impacting his 26 ability to engage in any work. Supra Section (II)(E)(2). This error requires remand for a proper 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 24 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 24 of 27 1 credibility assessment. Brown-Hunter, 806 F.3d at 493–94; Hutton, 491 F. App'x at 850. 2 (D) The ALJ’s analysis of Plaintiff’s 100% VA disability rating fails to 3 "accurately reflect the approaches taken" in the SSA and VA disability systems. 4 Disability determinations from other agencies, such as the Department of Veterans’ 5 Affairs, are considered "other evidence" from sources that are not acceptable sources (SSR 06-6 03p), and as such are not binding upon SSA (20 C.F.R. § 404.1504), yet nevertheless should be 7 8 weighed by ALJs in their determinations, and the ALJs assessments must "accurately reflect the 9 approaches taken" under the two systems. LaRiccia v. Comm'r of Soc. Sec., 549 F. App'x 377, 10 388 (6th Cir. 2013). See also McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) ("We 11 agree with the approach of the Fourth, Fifth, and Eleventh Circuits and hold that in an SSD case 12 an ALJ must ordinarily give great weight to a VA determination of disability. We so conclude 13 14 because of the marked similarity between these two federal disability programs." (comparing 38 15 C.F.R. § 4.1 et seq. (VA ratings) with 20 C.F.R. § 404.1 et seq (Social Security Disability)). 16 The ALJ appears to give Plaintiff’s 100% VA disability rating "minimal weight" because 17 of the differences in the two systems, simply stating the VA rating "is not based on Agency 18 19 policy or definitions of disability." T 31. The ALJ erred. In LaRiccia, the Ninth Circuit 20 remanded similar analysis, holding"[t]he VA rating reflects the cumulative effect of all of 21 LaRiccia’s impairments, just as the ALJ's assessment of residual functional capacity reflects a 22 claimant’s functional capacity in light of all of his limitations, not just those that are'severe.’" 23 549 F. App'x at 388. Thus, just as in McCartey and LaRiccia, the Court should remand for the 24 25 ALJ to give further consideration to the VA’s 100% disability rating in light of the two 26 programs’ similarities. 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 25 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 25 of 27 1 IV. CONCLUSION 2 For the foregoing reasons, it is respectfully requested that this Court remand this matter 3 for payment of benefits, or, in the alternative, for further administrative proceedings, including 4 5 de novo hearing and decision. 6 7 Date: May 10, 2017 Respectfully submitted, 8/s/Paul Eaglin 9 Paul Eaglin, Esq. Alaska Bar #9304010 10 Olinsky Law Group 300 South State Street 11 Syracuse, New York 13202 12 Phone: (315) 701-5780 NVR/AKV peaglin@windisability.com 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 26 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 26 of 27 1 CERTIFICATE OF SERVICE 2 3 This is to certify that I have this day served counsel for the Defendant with Plaintiff’s Opening Brief by filing the foregoing on the Court’s ECF system, which sent electronic notice to the 4 following recipients: 5 6 DAPHNE BANAY Special Assistant United States Attorney 7 Office of the General Counsel 8 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 9 Seattle, WA 98104-7075 Telephone: (206) 615-2113 10 Fax: (206) 615-2531 11 daphne.banay@ssa.gov 12 This 10th day of May, 2017. 13 14/s/Paul Eaglin 15 Paul Eaglin, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 Opening Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 27 Case 3:16-cv-00285-HRH Document 16 Filed 05/10/17 Page 27 of 27

NOTICE of Appearance by Catherine Cecilia Escobar on behalf of Nancy A. Berryhill

1 BRYAN SCHRODER 2 United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 CATHERINE ESCOBAR Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone: (206) 615-3701 Fax: (206) 615-2531 11 catherine.escobar@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 ROBERT CHARLES MARSHALL, Case No. 3:16-cv-00285-HRH 16 Plaintiff, 17 DEFENDANT’S NOTICE vs. OF APPEARANCE 18 NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. PLEASE TAKE NOTICE that the Defendant in the above-entitled action, without waiving 21 any objection to, inter alia, service, venue, or jurisdiction, hereby gives Notice that the 22 Commissioner of Social Security will be represented by and through the attorney of record listed 23 below. 24 Page 1 DEFENDANT’S NOTICE OF APPEARANCE-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 17 Filed 06/06/17 Page 1 of 3 1 CATHERINE ESCOBAR 2 Special Assistant United States Attorney Office of the General Counsel 3 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 4 Seattle, WA 98104-7075 Telephone: (206) 615-3701 5 Fax: (206) 615-2531 catherine.escobar@ssa.gov 6 You are advised that service of all further pleadings, notices, documents or other papers 7 herein, not filed electronically, may be made upon Defendant by serving the above-named 8 attorney at this address. 9 DATED this 6th day of June 2017. 10 Respectfully submitted, 11 Bryan Schroder 12 United States Attorney 13 RICHARD L. POMEROY Assistant United States Attorney 14 MATHEW W. PILE 15 Acting Regional Chief Counsel, Seattle, Region X 16 s/Catherine Escobar CATHERINE ESCOBAR 17 Special Assistant United States Attorney Office of the General Counsel 18 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 19 Seattle, WA 98104-7075 Telephone: (206) 615-3701 20 Fax: (206) 615-2531 catherine.escobar@ssa.gov 21 22 23 24 CERTIFICATE OF SERVICE Page 2 DEFENDANT’S NOTICE OF APPEARANCE-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 17 Filed 06/06/17 Page 2 of 3 1 2 I hereby certify that the foregoing Defendant’s Notice of Appearance was filed with the 3 Clerk of the Court on June 6, 2017, using the CM/ECF system, which will send notification of 4 such filing to the following: Howard D. Olinsky; Paul B. Eaglin. 5 s/Paul Maestry-Williams 6 PAUL MAESTRY-WILLIAMS Paralegal Specialist 7 Office of the General Counsel 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 3 DEFENDANT’S NOTICE OF APPEARANCE-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 17 Filed 06/06/17 Page 3 of 3

RESPONSE in Opposition re {{16}} MOTION to Remand to Social Security filed by Nancy A. Berryhill.

1 BRYAN SCHRODER 2 Acting United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 CATHERINE ESCOBAR Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone(206) 615-3701 Fax(206) 615-2531 11 catherine.escobar@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 ROBERT CHARLES MARSHALL, Case No. 3:16-cv-00285-HRH 16 Plaintiff, 17 vs. DEFENDANT’S BRIEF 18 NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. 21 INTRODUCTION 22 Robert Charles Marshall (Plaintiff) seeks judicial review of the Acting Commissioner of 23 Social Security’s (Commissioner) denial of his application for Disability Insurance Benefits under 24 Page 1 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 1 of 20 1 Title II of the Social Security Act (Act), 42 U.S.C. § 401 et seq. The Commissioner disputes that 2 any error occurred, and even if an error occurred, the Commissioner disputes that Plaintiff has 3 met his burden to show that it resulted in any harm. 4 ISSUES 5 I. Whether the Administrative Law Judge (ALJ) reasonably weighed Plaintiff’s 6 testimony 7 II. Whether the ALJ reasonably evaluated the medical evidence 8 III. Whether the ALJ properly considered the Veterans’ Affairs disability rating 9 IV. Whether remand for further proceedings is the appropriate remedy for any harmful 10 defect in the ALJ’s decision 11 BACKGROUND 12 Plaintiff filed his application for disability benefits in October 2014, alleging he had not 13 been able to work since June 1, 2013 because of post-traumatic stress disorder, subcortical white-14 matter disease, and shoulder impairments. Tr. 170-71, 186. He was 54 years old at the time of the 15 ALJ’s decision and had at least a high school education, having graduated from college in 2016. 16 Tr. 31, 60. He had past relevant work as a project manager, a quality control manager, a personal 17 technician, and an aircraft mechanic. Tr. 74-5. He was an Air Force veteran. Tr. 43, 73, 297. 18 Plaintiff’s application for benefits was ultimately denied by a written decision dated 19 August 16, 2016. Tr. 18-33. In finding Plaintiff not disabled, the Administrative Law Judge (ALJ) 20 applied the required five-step sequential evaluation process. Tr. 18-33; see 20 C.F.R. § 404.1520. 21 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the 22 alleged onset date of June 1, 2013. Tr. 20, Finding No. 2. At step two, the ALJ found that Plaintiff 23 had the severe medically determinable impairments of osteoarthritis of the shoulders, diabetes 24 Page 2 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 2 of 20 1 mellitus, macrocytosis, degenerative disc disease of the cervical spine, alcohol abuse, 2 anxiety/PTSD, and mild cognitive impairment/white matter disease. Tr. 20, Finding No. 3. At 3 step three, the ALJ determined that Plaintiff’s impairments, whether considered singly or in 4 combination, did not meet or medically equal the severity of an impairment listed in the 5 Commissioner’s Listings. Tr. 21, Finding No. 4. 6 In order to determine Plaintiff’s vocational ability at steps four and five, the ALJ 7 performed a residual functional capacity (RFC) analysis. Tr. 23-31. The ALJ found that Plaintiff 8 retained the RFC to perform medium work as defined in 20 C.F.R. § 404.1567(c) subject to 9 certain postural and environmental limitations. Tr. 23, Finding No. 5. Plaintiff could perform, at 10 most, semi-skilled work. Tr. 23. 11 Based on the RFC finding, at step five, with the assistance of a vocational expert, the ALJ 12 found that Plaintiff could perform other work existing in significant numbers in the national 13 economy. Tr. 31-32, Finding No. 10. Specific examples of representative jobs small parts 14 assembler, general office clerk, and recreational facility attendant. Tr. 32. For that reason, the 15 ALJ concluded that Plaintiff was not disabled. Tr. 32, Finding No. 11. 16 STANDARDS OF REVIEW 17 This Court reviews the ALJ’s decision denying benefits for substantial evidence; the 18 decision will be disturbed only if it is not supported by substantial evidence or based on legal 19 error. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). Substantial evidence is more than a 20 scintilla but less than a preponderance. Id. at 1110-11. It is "‘such relevant evidence as a 21 reasonable mind might accept as adequate to support a conclusion.’" Id. at 1110 (quoting 22 Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). Where the evidence 23 24 Page 3 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 3 of 20 1 is susceptible to more than one rational interpretation, the ALJ’s interpretation must be upheld. Id. 2 at 1111. 3 Even if the ALJ has erred, a court should affirm the decision so long as the error is 4 harmless. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). An error is harmless if it is 5 inconsequential to the ultimate nondisability determination. Id. The burden of showing harm falls 6 on the party attacking the determination. Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 7 ARGUMENT 8 Plaintiff alleges that the ALJ erred in evaluating: his testimony; the various conflicting 9 medical reports; and the VA ratings. Because the ALJ’s decision was supported by substantial 10 evidence and because the ALJ applied the correct legal standards, see 42 U.S.C. § 405(g); 11 Molina, 674 F.3d at 1110-11, the Commissioner asks the Court to affirm. 12 I. THE ALJ REASONABLY EVALUATED PLAINTIFF’S TESTIMONY 13 Plaintiff has not shown that the ALJ erred in evaluating his testimony. Pl. Br. at 22-25. 14 Where the record includes objective medical evidence establishing that the claimant 15 suffers from a medically determinable impairment that could reasonably produce the symptoms of 16 which he complains, an ALJ may reject a claimant’s testimony about symptom severity by 17 providing "specific, clear and convincing reasons"1 supported by substantial evidence. 18 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). This requires that the ALJ offer 19 "‘findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 20 21 1 To the extent Ninth Circuit precedent requires specific, clear, and convincing reasons for the 22 ALJ’s findings, the ALJ provided such reasons as explained below. The Commissioner’s position, however, is that reviewing courts should apply the "substantial evidence" standard of review 23 prescribed by Congress, 42 U.S.C. § 405(g), which does not require "a large or considerable amount of evidence" supporting the ALJ’s factual findings. Pierce v. Underwood, 487 U.S. 552, 24 565 (1988). Page 4 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 4 of 20 1 discredit claimant’s testimony.’" Id. (quoting Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2 2002)). 3 The ALJ satisfied this standard by providing several specific, clear, and convincing 4 reasons. Specifically, the ALJ found Plaintiff’s complaints of disabling limitations were 5 undermined by: (1) the fact that Plaintiff stopped performing his "highly skilled" job due to a 6 contract discontinuation, rather than any medical condition; (2) Plaintiff’s extensive physical and 7 mental activities, including obtaining a college degree; and (3) the benign longitudinal medical 8 record. Tr. 24-28. These findings were sufficiently specific to permit the Court to conclude that 9 the ALJ did not arbitrarily discredit Plaintiff’s testimony. 10 Plaintiff’s reasons for stopping work were unrelated to his impairments 11 The ALJ first observed, in weighing Plaintiff’s claims of disability, that, immediately 12 prior to his alleged June 2013 onset date, Plaintiff was performing work as a project manager, 13 which the vocational expert described as "highly skilled." Tr. 20, 74. According to Plaintiff, he 14 stopped working in May 2013 for reasons unrelated to any of his impairments, specifically 15 because his contract ended. Tr. 186, 273. The fact that a claimant stopped work for reasons other 16 than his impairments is a sufficient basis to disregard his testimony. Bruton v. Massanari, 268 17 F.3d 824, 828 (9th Cir. 2001) ("For example, the ALJ stated that she found Bruton’s subjective 18 pain complaints not credible because, inter alia: (1) Bruton stated at the administrative hearing 19 and to at least one of his doctors that he left his job because he was laid off, rather than because 20 he was injured…"). In this case, given that Plaintiff was able to perform "highly skilled" work 21 immediately prior to his alleged onset date, and stopped doing his work because of a contract 22 issue rather than any physical or mental symptoms, the ALJ reasonably concluded Plaintiff’s 23 impairments did not render him unable to work. Tr. 24. 24 Page 5 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 5 of 20 1 Plaintiff fails to address the ALJ’s reasoning on this point, arguing instead that the ALJ 2 should have considered his extensive work history. Pl.’s Br. at 24. The ALJ clearly considered 3 Plaintiff’s work history however, as the ALJ noted that Plaintiff had performed highly skilled 4 work prior to his onset date and had not left his job because of his impairments. Tr. 24. Plaintiff’s 5 argument appears to be that the ALJ should have drawn different conclusions from the evidence 6 in the record and argues that there is evidence to support his claims. Pl.’s Br. at 23-24. This is not, 7 however, a sufficient basis to challenge the ALJ’s finding, as it is not enough to simply argue that 8 there is some evidence or interpretation that would support a different conclusion by the ALJ. The 9 "key question is not whether there is substantial evidence that could support a finding of 10 disability, but whether there is substantial evidence to support the Commissioner’s actual finding 11 that claimant is not disabled." Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997) 12 (emphasis added). 13 Activities inconsistent with reported limitations. 14 The ALJ also discounted Plaintiff’s testimony by pointing to contradictions between his 15 reported activities and his asserted limitations. Tr. 24-25. For example, the ALJ noted that, 16 Plaintiff stated, in October 2015, that he could not carry any weight, walk significant distances, or 17 even make a fist with his hands. Tr. 24, 70, 231. Yet, in May 2014, Plaintiff reported that he was 18 performing yard work from 7am until midnight, and planned to lose weight due to extensive 19 hiking while hunting bears. Tr. 652, 1093. In December 2015, Plaintiff reported that his outdoor 20 activities still included lawn care, hunting, and fishing, limited in time by his college coursework. 21 Tr. 854. Plaintiff participated in rabbit hunting and ice fishing in winter. Tr. 854. The ALJ 22 reasonably concluded that the ability to perform extensive yard work, hunt bears, and ice fish 23 were inconsistent with an inability to lift any weight, walk distances, or use one’s hands. See 24 Page 6 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 6 of 20 1 Rollins, 261 F.3d at 857 (inconsistencies between a disability claimant’s testimony and his 2 reported activities provide a valid reason for an adverse evaluation of the claimant’s testimony). 3 Thus, substantial evidence supported discounting Plaintiff’s subjective symptom testimony on 4 this basis. Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 2001) (en banc) ("So long as the 5 adjudicator makes specific findings that are supported by the record, the adjudicator may discredit 6 the claimant’s allegations based on inconsistencies in the testimony..."). 7 Mentally, the ALJ also noted that Plaintiff’s activities similarly contradicted his claims of 8 limitation. Specifically, Plaintiff testified his memory his greatest problem, causing him to forget 9 day-to-day conversations. Tr. 65-66. Plaintiff also alleged that he struggled to concentrate and 10 would need to repeatedly read a paragraph in order to understand it. Tr. 66. Despite these claims, 11 however, Plaintiff successfully completed a college degree during the disability period. Tr. 25, 12 60-61. Indeed, according to Plaintiff’s medical records, in May 2014, Plaintiff was taking three 13 courses through a "compressed" summer semester and planned to pursue a master’s degree. Tr. 14 1093. In September, Plaintiff was doing "well" despite a "heavy" course load of four classes. Tr. 15 611. In December 2015, Plaintiff was able to perform both college course work and participate in 16 hunting and fishing. Tr. 854. In April 2016, although Plaintiff stated that he struggled to "focus" 17 in school, he was still able to do so. Tr. 27, 1095. During this time, Plaintiff continued to be able 18 to perform his regular daily activities as well, such as caring for his children, performing 19 household chores, and doing yard work. Tr. 232. Given Plaintiff’s demonstrated ability to 20 perform college-level work, even with his limitations related to "focus," while participating in 21 normal daily activities, and outside hobbies, the ALJ reasonably concluded that he would be able 22 to perform less difficult semi-skilled work, contrary to his claims of total disability. Tr. 23, 25. 23 24 Page 7 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 7 of 20 1 Plaintiff argues that he was not required to demonstrate total incapacity to show that he 2 was disabled. Pl.’s Br. at 23. This does not address the ALJ’s reasoning, however, which was 3 based on Plaintiff very high level of activity, including going to college, hunting, fishing, and 4 helping maintain his home. Tr. 25. Plaintiff also argues that the ALJ "mischaracterized" his 5 testimony, because of his "immense difficulty" pursing his bachelor’s degree. Pl.’s Br. at 24. This 6 is not accurate. The ALJ acknowledged that Plaintiff stated that he used his college’s disability 7 services to receive additional assistance, such as extra time on tests, but concluded that, even 8 performing college work with assistance contradicted his claims. Tr. 25. This is consistent with 9 the record, which shows that, Plaintiff was able to do "well" in his classes despite a "heavy" 10 course load, Tr. 611, that, despite his struggles with "focus," he was still able to complete his 11 work, Tr. 1095, and that he was "enjoying school and proud of his accomplishments," Tr. 1093. 12 Furthermore, Plaintiff’s ability to perform college-level work is consistent with the ALJ’s 13 conclusion that he could perform less demanding semi-skilled work. Tr. 23. 14 Inconsistent with the objective medical evidence. 15 The ALJ also gave less weight to Plaintiff’s testimony because his subjective complaints 16 were contradicted by the objective medical evidence in the record. Tr. 25-28. "Contradiction with 17 the medical record is a sufficient basis for rejecting the claimant’s subjective testimony." 18 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). 19 Here, ALJ accurately noted that, despite Plaintiff’s claims of memory problems and 20 struggles with concentration, his performance on mental examination was normal. Tr. 25-26. 21 Specifically, although Plaintiff claimed to struggle with reading, at his 2013 examination, he read 22 at a college-level and had low-average memory. Tr. 281 see also Tr. 276 (Plaintiff had normal 23 immediate and remote recall). Plaintiff had "no impairment" perform complex intellectual tasks. 24 Page 8 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 8 of 20 1 Tr. 284. In a subsequent 2015 examination, despite "slight" reduction in functioning, Plaintiff’s 2 memory remained in the "low average" range, and his concentration abilities were normal. Tr. 3 860-61. Additionally, his treating providers repeatedly stated that Plaintiff was not suffering from 4 anxiety or depression symptoms, which were controlled by medication. See e.g. Tr. 332, 388, 484, 5 509, 518, 611, 871, 1096-97. 6 Physically, the ALJ also accurately noted that Plaintiff’s medical examinations were 7 generally normal and his treatment conservative and effective. Tr. 27-28; Parra v. Astrue, 481 8 F.3d 742, 751 (9th Cir. 2007) (" [E]vidence of conservative treatment is sufficient to discount a 9 claimant’ s testimony regarding severity of an impairment."). For example, in June 2013, 10 Plaintiff complained of neck and shoulder pain. Tr. 309. He was referred to physical therapist, 11 Sundi Hondl, and discharged in September 2013 after successfully meeting his goals of improved 12 neck range of motion. Tr. 27, 442. Plaintiff similarly reported relief for his shoulder pain through 13 physical therapy, in 2015. Tr. 28, 490. Plaintiff also repeatedly demonstrated normal upper 14 extremity strength on examination. Tr. 485, 496, 551. Given Plaintiff’s mild physical findings, 15 coupled with positive responses to physical therapy, the ALJ reasonably concluded that Plaintiff 16 was not as physically disabled as alleged. 17 Plaintiff argues that the ALJ’s discussion of the medical evidence was "pro forma" and 18 contends that he did not address a PTSD diagnosis from Michael A. Gould, Psy.D. or limited 19 range of motion findings by Hondl. Pl.’s Br. at 23-24. The ALJ’s discussion of the medical 20 evidence is not "pro forma" however, as the ALJ thoroughly addresses the medical evidence, 21 linking it to Plaintiff’s allegations, and explaining his reasoning. See e.g. Tr. 25-28. Regarding Dr. 22 Gould, as the ALJ concluded that Plaintiff suffered from PTSD, and that the impairment was 23 "severe," Tr. 20, it is unclear what further relevance his diagnosis of PTSD would have. With 24 Page 9 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 9 of 20 1 respect to Hondl, the ALJ specifically noted that Plaintiff had received physical therapy from him 2 and was discharged from his care, having met all of his therapy goals. Tr. 27, 442. 3 To the extent that Plaintiff argues that the ALJ should have given special or different 4 weight to his military and work history and his desire to return to work, such an argument fails to 5 demonstrate any error on the ALJ’s part. Pl.’s Br. at 24. In evaluating Plaintiff’s testimony, the 6 ALJ reviewed the evidence, including the medical records, medical providers’ statements, and 7 Plaintiff’s testimony to conclude that Plaintiff was still capable of performing other work despite 8 his pain and reported limitations. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 9 (9th Cir. 2004). The ALJ’s interpretation of the evidence may not be overturned simply because 10 Plaintiff argues that the ALJ drew the wrong conclusion. Id. 11 Having provided multiple specific, clear, and convincing reasons supported by substantial 12 evidence to discount Plaintiff’s subjective symptom statements, the ALJ did not err. Even if the 13 ALJ did err by relying upon one or more impermissible reasons, any error was harmless as the 14 ALJ articulated additional independently valid reasons that supported the ultimate determination. 15 See Carmickle, 533 F.3d at 1162 ("[s]o long as there remains'substantial evidence supporting the 16 ALJ’s conclusions on... credibility’ and the error'does not negate the validity of the ALJ’s 17 ultimate [credibility] conclusion’" (quoting Batson, 359 F.3d at 1197)). Therefore, the 18 Commissioner requests that the Court uphold the ALJ’s findings. 19 II. THE ALJ REASONABLY EVALUATED THE MEDICAL EVIDENCE 20 Plaintiff alleges that the ALJ erred in weighing the opinions of examining psychologist, 21 Dr. Gould and treating psychiatrist Joseph Pace, M.D. Pl. Br. at 15-22. When, as here, the record 22 contains conflicting medical opinions concerning the severity of a claimant’s limitations, the ALJ 23 is responsible for resolving those conflicts. Carmickle, 533 F.3d at 1164. To reject a treating or 24 Page 10 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 10 of 20 1 examining physician’s controverted opinion, the ALJ must provide "specific and legitimate 2 reasons" supported by substantial evidence. Id. 3 Dr. Gould 4 Plaintiff argues that the ALJ erred by failing to address the opinion of Dr. Gould. Pl.’s Br. 5 at 17. Plaintiff argues that Dr. Gould identified limitations that the ALJ failed to account. Pl.’s Br. 6 at 17. The problem for Plaintiff, however, is that Dr. Gould did not identify any specific 7 limitations for the ALJ to consider. A review of his opinion indicates that he completed a 8 checkbox report for the purposes of simply stating whether or not Plaintiff’s condition meant the 9 clinical criteria for PTSD for the purposes of the VA. Tr. 922 ("Please check criteria used for 10 establishing the current PTSD diagnosis."). This report states, generally, that Plaintiff had 11 "problems" with concentration, and "difficulty adapting in stressful circumstances." Tr. 923-24. 12 As the ALJ concluded that Plaintiff had PTSD and that it was a "severe" impairment, which, thus, 13 "significantly limited [Plaintiff’s] ability to perform basic work activities," and that he had 14 "moderate" concentration limitations, Plaintiff fails to identify what further relevance Dr. Gould’s 15 opinion would have to the decision. Tr. 19-21. As the ALJ’s decision is wholly consistent with 16 Dr. Gould’s opinion, Plaintiff has not demonstrated that the ALJ’s failure to address the opinion 17 was relevant to the disability determination. "[A]n ALJ’s error is harmless where it is 18'inconsequential to the ultimate nondisability determination." Molina v. Astrue, 674 F.3d 1104, 19 1115 (9th Cir. 2012); see also Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 and 20 1163 n.4 (9th Cir. 2008) (The harmlessness of an error is determined by "whether the ALJ’s 21 underlying decision remains supported, in spite of any error, and not whether the ALJ would 22 necessarily reach the same result on remand."). 23 24 Page 11 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 11 of 20 1 Plaintiff argues that Dr. Gould’s opinion would have demonstrated that he met the 2 requirements for Listing 12.06. Pl.’s Br. at 17. Plaintiff does not explain how this would be the 3 case, however, apart from establishing that Plaintiff meets the clinical criteria for PTSD, a 4 question already answered in the affirmative by the ALJ. Tr. 922-24. Plaintiff argues that this 5 opinion constituted an additional examining source describing "the severity" of his PTSD, Pl.’s 6 Br. at 17, however, this is not consistent with the actual language of the opinion, which simply 7 establishes that Plaintiff’s condition meets the criteria for "the current PTSD diagnosis," without 8 offering any information regarding the "severity" of the condition. Tr. 922. To the extent that the 9 VA came to a conclusion about the severity of Plaintiff’s PTSD, it did so by rating it as 50% 10 disabling. See Tr. 297 (PTSD is a "static disability" rated 50% since 2008), 924 (Dr. Gould states 11 that there is "no change in the [PTSD] diagnosis"). The ALJ appropriately gave little weight to 12 this finding. Tr. 30-31. 13 Dr. Pace 14 The ALJ considered the April 2016 statement from Plaintiff’s psychiatrist, Joseph Pace, 15 M.D., who filled out "Mental Capacity Assessment" in which he indicated, inter alia, that 16 Plaintiff had "marked" limitations understanding and remembering even "very short and simple 17 instructions," marked limitations maintaining concentration over extended periods, and marked 18 limitations working in coordination with or in proximity to other people without being distracted 19 by them. Tr. 1086-87. The ALJ gave little weight to this assessment, reasoning that it was 20 unsupported by objective medical evidence and inconsistent with Dr. Pace’s own records, which 21 recorded extensive daily activities and normal mental status examinations. Tr. 30. 22 Contradictions between a doctor’s opinion and that doctor’s own clinical notes and 23 observations "is a clear and convincing reason for not relying on the doctor’s opinion[.]" Bayliss 24 Page 12 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 12 of 20 1 v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); see also Tommasetti v. Astrue, 533 F.3d 1035, 2 1041 (9th Cir. 2008) ("The incongruity between Dr. Nachenberg’s Questionnaire responses and 3 her medical records provides an additional specific and legitimate reason for rejecting Dr. 4 Nachenberg’s opinion of Tommasetti’s limitations."). Furthermore, an ALJ may discount a 5 doctor’s opinion to the extent it conflicts with the claimant’s daily activities. Morgan v. Comm’r 6 of the Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999) ("The ALJ noted, contrary to Dr. 7 Reaves’s conclusion that Morgan suffered from'marked limitations,’ that the evidence 8 established that Morgan adequately copes with the social aspects of daily living, continues to 9 maintain some friendships, and manifests above-average intelligence and other cognitive 10 abilities."). 11 Here, the ALJ correctly noted that the extreme limitations identified in Dr. Pace’s opinion 12 were flatly contradicted by Dr. Pace’s own medical notes. Tr. 30. Consistent with this, Dr. Pace’s 13 April 2014 notes indicate that Plaintiff planned to spend two months hiking and hunting bears, 14 hardly consistent with an individual unable to follow even simple instructions. Tr. 652. In May 15 2014, Plaintiff was taking three college courses for a "compressed" summer schedule and was 16 doing yard work from 7AM until midnight. Tr. 1093. At a September 2014 follow-up, Dr. Pace 17 reported that Plaintiff’s mood was good, and that he was taking four classes towards his degree, 18 managing a "heavy" course load "well." Tr. 611. In August 2015, Plaintiff’s depression was 19 controlled by his medication and he had no PTSD symptoms. Tr. 595-96. Despite a "struggle" to 20 learn new material, Plaintiff was continuing to successfully pursue his college degree. Tr. 596. 21 Dr. Pace’s April 2016 notes, prepared at the same time as his opinion, reflect that Plaintiff 22 sometimes "struggled" to focus, but was nevertheless able to complete his college courses and 23 24 Page 13 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 13 of 20 1 was going to graduate, Tr. 1095. Further, Plaintiff’s mental status examination revealed "average" 2 intelligence, a friendly demeanor, normal speech, and full orientation. Tr. 1096-97. 3 Given that, throughout Plaintiff’s treatment, Plaintiff’s symptoms were well-controlled, 4 and he was able to attend college and engage in complex outdoor activities, managing even a 5 heavy course load "well," the ALJ reasonably concluded that Dr. Pace’s opinion that Plaintiff had 6 numerous "marked" mental limitations, including being virtually unable to understand even "very 7 short and simple" instructions or maintain concentration, was contradicted by his own medical 8 notes. Tr. 25-26, 30. Accordingly, the ALJ reasonably gave this opinion little weight. See Bayliss 9 v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (upholding the ALJ’s discounting of a doctor’s 10 opinion that Bayliss had "difficulty paying attention, concentrating, and organizing herself 11 without getting overwhelmed," when the claimant was able to complete high school and obtain a 12 college degree despite her mental impairments.). 13 Although the ALJ rejected Dr. Pace’s assessment, he gave some weight to that of 14 examining psychologists Richard Fuller, Ph.D. and Michael Rose, Ph.D. and state agency non-15 examining psychologist Laura Jones, Ph.D.2 Tr. 29-30. As the ALJ observed, Tr. 25-26, Dr. 16 Fuller’s 2013 examination indicated that Plaintiff’s intellectual function ranged from high average 17 to low average, Tr. 278-85, and Dr. Rose’s 2015 testing ranged from average to low average, Tr. 18 860-61. Plaintiff argues that the ALJ "utterly failed" to note the "slight" deterioration between the 19 20 2 The ALJ gave these opinions little weight only to the extent that they limit Plaintiff to less than 21 semi-skilled work, reasoning that this was inconsistent with Plaintiff’s ability to attend and graduate college. Tr. 29-30. Plaintiff suggests that the ALJ erred in weighing these opinions, but 22 does not actually address the ALJ’s reasoning. See Pl.’s Br. at 21. Because Plaintiff did not frame this argument or put flesh on its bones through a discussion of the applicable law and facts, 23 Plaintiff has waived any additional argument regarding the medical evidence. See, e.g., Sekiya v. Gates, 508 F.3d 1198, 1200 (9th Cir. 2007) ("Bare assertions and lists of facts unaccompanied by 24 analysis and completely devoid of caselaw fall short of the requirement..."); Page 14 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 14 of 20 1 two tests. Pl.’s Br. at 21. This is inaccurate, however, as the ALJ specifically addressed the "slight 2 cognitive slippage" observed by Dr. Rose, reasoning that it still did not prevent Plaintiff from 3 continuing with his college education, as he was still working towards a technological bachelor’s 4 degree at the time. Tr. 26. 5 Next, Plaintiff argues that the ALJ erred by failing to "recite" the factors in 20 C.F.R. 6 § 404.1527(c), in weighing Dr. Pace’s opinion, arguing that the some of these factors weigh in 7 Dr. Pace’s favor. Pl.’s Br. at 21-22. The ALJ is not, however, required to "recite" regulatory 8 factors in his opinion, although the ALJ did cite to 20 C.F.R. § 404.1527 when addressing the 9 "opinion" evidence. Tr. 23. Moreover, the ALJ considered the opinion’s internal consistency and 10 degree of support, both relevant factors under the regulation. See 20 C.F.R. § 404.1527(c)(4) and 11 (5). 12 Plaintiff also argues that the ALJ "erroneously" concluded that Dr. Pace’s treatment 13 record was inconsistent and unremarkable, contending that the ALJ did not provide citation to 14 these records. Pl.’s Br. at 22. This is incorrect, as the ALJ specifically cited multiple specific 15 records from Dr. Pace, showing Plaintiff’s well-controlled symptoms and college participation. 16 See Tr. 30 citing Tr. 595-96, 611, 1095-97. The ALJ also cited Dr. Pace’s notes in his review of 17 the medical evidence. See Tr. 25-27. Plaintiff next argues that there is no evidence that Dr. Pace’s 18 notes were not from "good" as opposed to "bad" days. Pl.’s Br. at 22. Plaintiff fails, however, to 19 identify any records from alleged "bad" days, and does not offer any rebuttal to the ALJ’s 20 reasoning: specifically that Plaintiff’s symptoms did not prevent him from successfully pursing a 21 technological bachelor’s degree, while also maintaining an active lifestyle of hunting and fishing. 22 Tr. 30. The issue is not whether the evidence could have supported an interpretation more 23 favorable to the claimant, but whether substantial evidence supports the findings that the ALJ 24 Page 15 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 15 of 20 1 actually made. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) ("If the evidence can support 2 either outcome, the court may not substitute its judgment for that of the ALJ." (internal quotation 3 marks omitted)). The ALJ’s interpretation of the evidence was reasonable and should not be 4 overturned simply because Plaintiff argues that the ALJ drew the wrong conclusion. 5 Finally, Dr. Pace also prepared a physical assessment, stating that Plaintiff’s PTSD and 6 cognitive disorder would interfere with his ability to sit and stand for longer than four hours and 7 two hour per day respectively. Tr. 1083. The ALJ rejected this opinion on the grounds that Dr. 8 Pace had never actually treated Plaintiff for any physical conditions and, indeed, identified 9 nothing but mental impairments in the nominally "physical" opinion. Tr. 29, 1083. Further, the 10 ALJ agreed with the reasoning offered by testifying medical expert, Jack Lebeau, M.D., who 11 observed that Dr. Pace’s physical opinion had no basis in the medical record. Tr. 29, 54-55. 12 Plaintiff states that he does not "address" this reasoning, but argues, in a footnote, that Dr. Pace’s 13 physical opinion was "consistent" with statements regarding limited range of motion in the neck 14 and arms, made by physical therapist, Hondl, and Jason Collins, PA-C. Pl’s Br. at 20 n. 2 citing 15 Tr. 449-50, 888-909. Generally, speaking, "[I]ssues not argued with specificity in briefing will 16 not be addressed," and are considered waived. Carmickle, 533 F.3d at 1161 n.2. The 17 Commissioner notes, however, that it is unclear how Dr. Pace’s physical opinion is "consistent" 18 with that of Hondl and Collins, as both parties treated Plaintiff’s neck and shoulders, and Dr. Pace 19 opined that Plaintiff had no limitations related to his arms, hands, or fingers. Tr. 1083. 20 III. THE ALJ PROPERLY WEIGHED THE VA DISABILITY RATING. 21 As the ALJ noted, Plaintiff had a VA disability rating of 90% from December 2008 and 22 100% after January 2014. Tr. 30-31, 297-98. The ALJ gave the rating "minimal weight." Tr. 31. 23 An ALJ must ordinarily give great weight to a VA disability determination. McCartey v. 24 Page 16 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 16 of 20 1 Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). However, an "ALJ may give less weight to a 2 VA disability rating if he gives persuasive, specific, valid reasons for doing so that are supported 3 by the record." Id. The ALJ did so here. 4 First, the ALJ gave the VA rating little weight because it was contradicted by Plaintiff’s 5 daily activities, which included attending college, while simultaneously engaging in heavy 6 recreational activities such as hunting and fishing. Tr. 31. Consistent with the ALJ’s finding, in 7 April 2014, after the VA’s findings were made, Plaintiff reported that he planned to hunt bears for 8 the next two months, and, thus, hoped to lose weight. Tr. 652. A month later, Plaintiff stated that 9 he had been doing yard-work from 7AM until midnight, and hiking because of "bear season." Tr. 10 1093. At the same time, he was taking three classes over the "compressed summer semester" and 11 hoped to continue on to get his master’s degree. Tr. 1093. Similarly, in February 2015, Plaintiff 12 reported that his activities included "hunting and fishing" in addition to take college classes. Tr. 13 854. In April 2016, Plaintiff was looking forward to graduating from college. Tr. 1095. Given 14 Plaintiff’s extensive physical and mental pursuits, the ALJ reasonably concluded that the initial 15 90% and eventual 100% disability rating were due little weight. 16 The ALJ also gave little weight to the VA rating because the longitudinal record 17 contradicted the finding. Tr. 30-31. Medical opinions from longitudinal treating sources "may 18 bring a unique perspective to the medical evidence that cannot be obtained from... reports of 19 individual examinations..." 20 C.F.R. § 404.1527(d)(2); Osenbrock v. Apfel, 240 F.3d 1157, 20 1165 (9th Cir. 2000); SSR 96-7p, available at 1996 WL 374186, at *7. Consistent with the ALJ’s 21 findings, Plaintiff’s mental health examinations were consistently normal over time. For example, 22 in December 2014, Plaintiff’s mental health symptoms were "well-controlled" with medication 23 and he had no anxiety or depression, again reporting no anxiety or depression in September 2015. 24 Page 17 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 17 of 20 1 Tr. 484, 509. In April 2016, he had a completely normal mental status examination. Tr. 1096-97. 2 On psychological examination, Plaintiff read at a college level and had no impairment performing 3 "complex intellectual tasks." Tr. 281, 284. Physically, as the ALJ observed, Tr. 27-28, Plaintiff’s 4 shoulder and neck pain resolved with physical therapy. Tr. 442, 490. Plaintiff repeatedly 5 demonstrated normal upper extremity strength on examination. Tr. 485, 496, 551. Given 6 Plaintiff’s repeated normal physical and mental examinations, the ALJ reasonably concluded that 7 his 90% and 100% disability rating were due little weight. 8 Plaintiff does not address the ALJ’s reasons for giving little weight to the VA rating, 9 arguing instead that the ALJ erred by observing that the VA rating system was "not based on 10 Agency policy or definitions of disability." Pl.’s Br. at 25 citing Tr. 31. Relying on McCartey, 11 298 F.3d at 1076, Plaintiff argues that it was reversible error for the ALJ to reject the VA ratings 12 due to differences between the VA and SSA disability systems. Pl.’s Br. at 25. This argument is 13 unsupported, however, because the ALJ did not give the VA ratings minimum weight on this 14 basis, instead stating that they were due minimum weight because of Plaintiff’s "robust" daily 15 activities and the objective medical evidence. Tr. 31. Plaintiff has not challenged or even 16 addressed the ALJ’s reasoning on this point. Because the ALJ gave "persuasive, specific, valid 17 reasons" for the weight given the VA ratings, Plaintiff has failed to demonstrate any error, and the 18 ALJ’s finding should be affirmed. McCartey, 298 F.3d at 1076. 19 IV. IF CASE IS REMANDED, A REMAND FOR FURTHER PROCEEDINGS IS APPROPRIATE. 20 Plaintiff requests that the case be remanded for an award of benefits but does not explain 21 why this case raises the "rare circumstances" where departing from the ordinary remand rule may 22 be permissible. Pl. Br. at 26. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 23 (9th Cir. 2014) (under ordinary remand rule, except in rare circumstances, the proper course is to 24 Page 18 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 18 of 20 1 remand to agency for further proceedings). If the Court holds that the ALJ failed to provide 2 legally sufficient reasons to discount testimony about Plaintiff’s subjective allegations or 3 reexamine the medical opinion evidence, the record still raises questions as to the extent of these 4 limitations given his extensive daily activities. Further, given Plaintiff’s ability to perform high 5 skilled work immediately prior to his alleged onset date, it is unclear whether the alleged onset 6 date would be correct, or whether a different date is appropriate. Further proceedings would thus 7 be necessary to resolve outstanding issues. See Hill v. Astrue, 698 F.3d 1153, 1162-63 (9th Cir. 8 2012) (where RFC was flawed and hypothetical incomplete, appropriate remedy was remand for 9 further proceedings). 10 CONCLUSION 11 In reviewing the denial of Social Security disability benefits, the role of the court is to 12 ensure that the ALJ decision was free of harmful legal error and was supported by substantial 13 evidence. Molina, 674 F.3d at 1110-1111. Here, the ALJ properly applied the correct legal 14 standards and the record contained substantial evidence to support the decision that Plaintiff was 15 not disabled. Therefore, the Commissioner’s decision should be affirmed. 42 U.S.C. § 405(g). 16///17 18///19 20///21 22///23 24 Page 19 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 19 of 20 1 DATED this 9th day of June 2017. 2 Respectfully submitted, 3 BRYAN SCHRODER 4 Acting United States Attorney 5 RICHARD L. POMEROY Assistant United States Attorney 6 MATHEW W. PILE 7 Acting Regional Chief Counsel, Seattle, Region X 8 s/Catherine Escobar CATHERINE ESCOBAR 9 Special Assistant United States Attorney Office of the General Counsel 10 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 11 Seattle, WA 98104-7075 Telephone(206) 615-3701 12 Fax(206) 615-2531 catherine.escobar@ssa.gov 13 14 15 CERTIFICATE OF SERVICE 16 I hereby certify that the foregoing Defendant’s Brief was filed with the Clerk of the Court 17 on June 9, 2017, using the CM/ECF system, which will send notification of such filing to the 18 following: Howard D. Olinsky and Paul B. Eaglin. 19 s/Megan Moore 20 MEGAN MOORE Paralegal Specialist 21 Office of the General Counsel 22 23 24 Page 20 DEFENDANT’S BRIEF-[3:16-cv-00285-HRH] Case 3:16-cv-00285-HRH Document 18 Filed 06/09/17 Page 20 of 20

REPLY to Response to Motion re [16] MOTION to Remand to Social Security filed by Robert Charles Marshall.

1 Howard D. Olinsky, Esq. Admitted Pro Hac Vice 2 Attorney for Plaintiff 3 Olinsky Law Group 300 South State Street 4 Syracuse, New York 13202 5 Telephone: (315) 701-5780 Fax: (315) 701-5781 6 holinsky@windisability.com 7 8 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ALASKA 9 Robert Charles Marshall, 10 11 Plaintiff, Case No. 3:16-CV-00285-HRH 12 vs. 13 14 PLAINTIFF’S REPLY BRIEF Nancy A. Berryhill, (SOCIAL SECURITY) 15 Acting Commissioner of Social Security, 16 Defendant 17 18 PLAINTIFF’S REPLY MEMORANDUM OF LAW IN SUPPORT OF A SOCIAL SECURITY APPEAL 19 20 I. ARGUMENT 21 Plaintiff’s brief raised four primary contentions, the third of which was Plaintiff’s 22 credibility. Pl.’s Opening Br., Dkt. No. 16 (hereinafter "Pl.’s Br."), at 1–2, 15–25. The 23 Commissioner, apparently perceiving the credibility of this 26-year Air Force Veteran with a 24 100% disability rating from the VA to be weak, takes those arguments out of order and offers a 25 26 27 28 Reply Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 1 Case 3:16-cv-00285-HRH Document 19 Filed 06/23/17 Page 1 of 9 1 lengthy response to Plaintiff’s credibility argument. Def.’s Br., Dkt. No. 18, at 4–10. Plaintiff 2 offers a brief reply that restores the arguments to their original order. 3 (1) The ALJ’s residual functional capacity finding was the product of legal error 4 and was unsupported by substantial evidence in several respects. 5 (A) The ALJ fails to weigh opinion evidence from Dr. Gould relating to 6 Plaintiff’s severe PTSD stemming from traumatic events experienced during military service (Reply to Commissioner’s Section II). 7 The Commissioner does not contest that the ALJ failed to mention or weigh the 8 9 assessment of Dr. Gould. Def.’s Resp. at 11–12. This should end the inquiry. See Burt v. 10 Colvin, 611 F. App'x 912, 914 (9th Cir. 2015) (failure to weigh CE opinion not harmless because 11 it could have "formed the basis" for a finding of disabled). 12 The Commissioner characterizes the opinion of a Dr. Gould as a "checkbox report." 13 Def.’s resp. at 11. Affirming on this basis invites the Court to engage in post hoc rationalization 14 15 given that the ALJ did not articulate this, or any other reason, for impliedly rejecting Dr. Gould’s 16 assessments. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225–26 (9th Cir. 2009) 17 (reviewing Courts must reject Commissioner’s post hoc rationalizations). Moreover, many 18 district courts have recognized that "checkbox" reports are used by and routinely relied upon by 19 20 the Agency, providing no reason upon which to discount them. See Smith v. Astrue, No. CV-10-21 0453-CI, 2012 U.S. Dist. LEXIS 126862, at *17, nn. 3 & 4 (E.D. Wash. Sept. 6, 2012) 22 (criticizing ALJ decision to accord little weight to a treating physician opinion where state 23 agency reviewing physician "used a similar checkbox evaluation form"); White v. Astrue, No. 24 12-cv-5251-JRC, 2013 U.S. Dist. LEXIS 17005, at *14 (W.D. Wash. Feb. 7, 2013) (same); 25 26 Matthews v. Astrue, No. EDCV 11-01075-JEM, 2012 U.S. Dist. LEXIS 47903, at *18—*19 27 28 Reply Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 2 Case 3:16-cv-00285-HRH Document 19 Filed 06/23/17 Page 2 of 9 1 (C.D. Cal. Apr. 4, 2012) (same). Additionally, Dr. Gould, as a VA physician, had access to 2 Plaintiff’s VA medical history, just as a state agency doctor has access to medical evidence 3 submitted to the Agency, and he relied upon VA treatment notes for his opinion following his 4 5 examination of Plaintiff, further providing reason for the ALJ to have at least considered it in his 6 analysis. See 20 C.F.R. § 404.1527(c)(6)("the extent to which an acceptable medical source is 7 familiar with the other information in your case record are relevant factors we will consider"). 8 The Commissioner contends that such an opinion merely recited the "clinical criteria for 9 PTSD" and found that Plaintiff met the criteria. Def.’s Br. at 11. However, the Commissioner 10 11 overlooks her own regulations which explicitly state that such diagnoses constitute a "medical 12 opinion" that "will be evaluate[d]" by the ALJ. See 20 C.F.R. § 404.1527(a)(2) (defining 13 opinions as "statements from physicians and psychologists or other acceptable medical sources 14 that reflect judgments about the nature and severity of your impairment(s), including your 15 symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your 16 17 physical or mental restrictions.") (emphasis added). Moreover, the Ninth Circuit has repeatedly 18 remanded where the ALJ failed to weigh or ignored opinion evidence. See Garrison v. Colvin, 19 759 F. 3d 995, 1012—13 (9th Cir. 2014) (ALJ "errs when he rejects a medical opinion or assigns 20 it little weight while doing nothing more than ignoring it, asserting without explanation that 21 22 another medical opinion is more persuasive, or criticizing it with boilerplate language.") 23 (emphasis added); Burt, 611 F. at 914. 24 Nevertheless, the Commissioner’s characterization of the ALJ’s utter failure to weigh the 25 opinion of Dr. Gould as "harmless" strains credulity given that the "marked" limitations 26 contained in the opinion could form the basis for a finding of disability at Step 3, thereby 27 28 Reply Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 3 Case 3:16-cv-00285-HRH Document 19 Filed 06/23/17 Page 3 of 9 1 obviating the need to engage in any RFC or credibility analysis or further weighing of opinion 2 evidence. See Pl.’s Br. at 17. Even if one proceeds to the RFC analysis, the opinion of Dr. 3 Gould, again containing "marked" limitation in engaging in activities, "marked" reaction to 4 5 anything triggering members of his military service, estrangement from others, hypervigilance, 6 and problems with concentration, are inconsistent with the RFC finding that reflects none of 7 these deficits, and, again, constituted an "opinion" relating to the "severity" of Plaintiff’s PTSD. 8 20 C.F.R. § 404.1527(a)(2). Furthermore, the existence of this opinion that corroborates 9 Plaintiff’s PTSD and thereby lends further weight to Plaintiff’s treatment source opinion from 10 11 Dr. Pace as an opinion "consistent" with it, thereby constituting further harmful error in this case. 12 Pl.’s Br. at 21, Lines 18–22. 13 (B) The ALJ fails to articulate "specific and legitimate reasons" for 14 discounting the opinion of Plaintiff’s treating psychiatrist, Dr. Pace, when he opined to mental, psychiatric limitations (Reply to Commissioner’s 15 Section II). The Commissioner argues that the ALJ’s decision to discount Dr. Pace’s opinion is 16 17 supported by substantial evidence and recites a few treatment notes regarding Plaintiff hunting, 18 taking college courses, or feeling no PTSD symptoms on a single occasion (August 2015). 19 Def.’s Resp. at 12–14. Plaintiff stands on the arguments and evidence contained in his opening 20 brief, revealing that the ALJ’s decision, which provided a terse single sentence of analysis (T 21 22 30), was legally deficient and failed to articulate "specific and legitimate reasons" for 23 discounting Dr. Pace’s opinions. Pl.’s Br. at 18–22. Plaintiff notes that the single sentence of 24 analysis offered by the ALJ recites none of this evidence now adduced by the Commissioner. 25 See Bray, 554 F.3d at 1225–26 (reviewing Courts must reject Commissioner’s post hoc 26 rationalizations). Nevertheless, Plaintiff does acknowledge that when summarizing Dr. Rose’s 27 28 Reply Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 4 Case 3:16-cv-00285-HRH Document 19 Filed 06/23/17 Page 4 of 9 1 assessments, the ALJ does recognize cognitive slippage (T 26), however, when later weighing 2 the opinion of Dr. Pace (T 30), the ALJ fails to acknowledge this fact, which was consistent 3 with, and should have resulted in the ALJ according more weight to, Dr. Pace’s opinion. See 4 5 Pl.’s Br. at 21. Plaintiff finds it odd that the Commissioner would now provide the post hoc 6 rationalization, given that the ALJ largely discounts the opinion of Dr. Rose, giving portions of it 7 "little weight," including those assessments limiting Plaintiff to only "simple" work. T 30. 8 (C) The ALJ’s adverse credibility determination fails to provide specific, 9 clear, and convincing reasons for discounting Plaintiff’s testimony (Reply to Commissioner’s Section I). 10 The Commissioner argues that because (a) Plaintiff engaged in highly skilled work prior 11 to AOD and (b) stopped this work because of a contract dispute and not his impairments, the 12 ALJ had sufficient reason to discount his testimony. Def.’s Resp. at 5. The fact that Plaintiff 13 14 engaged in skilled work prior to his AOD provides little reason to discount his testimony after 15 his AOD. This is particularly true given that the ALJ determined Plaintiff could not engage in 16 his past work. T 31. The inquiry is thus not why Plaintiff initially filed his disability 17 applications, but instead whether, as of the AOD, he can engage in work and whether the 18 19 evidence supports the reasons he provided for being unable to do so. Plaintiff testified that he 20 could no longer work due to his impairments, including, but not limited to, tremors in his hands 21 (corroborated by Dr. Rose’s observation during Plaintiff’s CE – T 853), balance issues occurring 22 in the 6–8 months prior to his hearing, pain, and problems with memory or forgetfulness 23 (corroborated by opinion evidence and treatment notes documenting a lack of concentration, 24 25 focus, and memory problems). T 68–71. Plaintiff’s IQ and mental faculties, including memory, 26 have unquestionably deteriorated since his AOD, further supporting his subjective assertions. 27 28 Reply Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 5 Case 3:16-cv-00285-HRH Document 19 Filed 06/23/17 Page 5 of 9 1 See, e.g., 860–61 (opinion of Dr. Rose). The Court should disregard the red herring upon which 2 the ALJ and Commissioner rely. 3 The Commissioner’s argument amounts to contending that because Plaintiff pursued and 4 5 obtained a college degree late in life, he could not be disabled. Def.’s Resp. at 8. While it is 6 true, as the Commissioner suggests, that the ALJ acknowledged that Plaintiff stated he received 7 assistance in pursuing his degree, the ALJ specifically discredits this extra help, finding "there 8 are no records from the claimant’s college to support this." T 25. The ALJ then fails to 9 acknowledge the numerous additional problems Plaintiff testified that he faced when pursuing 10 11 his degree. Pl.’s Br. at 13. Thus, Plaintiff stands on the arguments raised in his opening brief 12 regarding his deteriorating mental state. 13 (D) The ALJ’s analysis of Plaintiff’s 100% VA disability rating fails to 14 "accurately reflect the approaches taken" in the SSA and VA disability systems (Reply to Commissioner’s Section III). 15 The Commissioner offers a recapitulation of the ALJ’s reasoning, supported with further 16 record citations, and, accordingly, Plaintiff relies upon his opening brief to assert that the ALJ 17 engaged in legal error in failing to recognize that VA disability ratings are typically due "great 18 19 weight" due to their "marked similarity" with the Agency’s disability policy, as recognized by 20 the Ninth Circuit in McCartey and Sixth Circuit in LaRiccia. Pl.’s Br. at 25. Indeed, the ALJ 21 rejected the opinion, contending that it was "not entitled to any particular weight" because it was 22 not based on "Agency policy or definitions of disability," which flies in the face of established 23 precedent. 24 25 (E) Whether this Court may remand for payment of benefits (Reply to Commissioner’s Section IV). 26 Plaintiff submits that ALJ Hebda has already had one attempt to weigh the opinion of Dr. 27 28 Reply Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 6 Case 3:16-cv-00285-HRH Document 19 Filed 06/23/17 Page 6 of 9 1 Gould, but failed to do so, and took his one shot at the findings of Dr. Pace, failing to provide 2 specific and legitimate reasons for discounting that opinion. The record provides no reason to 3 remand this case on these issues other than to permit ALJ Hebda a second bite at the apple. If 4 5 the Court fully credits either opinion, it would provide an adequate basis for remanding for 6 payment of benefits under the Ninth Circuit’s three-part test. Garrison v. Colvin, 759 F.3d 995, 7 1020 (9th Cir. 2014). The record in this case requires no further development, the ALJ has 8 provided a legally insufficient reason for rejecting either opinion, and, if either were credited as 9 true, ALJ Hebda would be required to find claimant disabled. Id. The same is true of the VA’s 10 11 opinion that Plaintiff was 100% disabled due to his service connected disability, since it was 12 premised principally upon the ALJ’s error in law that fails to recognize the marked similarities in 13 the two programs. 14 Alternatively, Plaintiff prevailing on the credibility issue alone would require a new 15 administrative hearing and decision. The Commissioner provides no reason supporting his 16 17 assertion that the AOD should be amended or what other "outstanding issues" require resolution 18 upon remand. 19 II. CONCLUSION 20 For the foregoing reasons, it is respectfully requested that this Court remand this matter 21 22 for payment of benefits, or, in the alternative, for further administrative proceedings, including 23 de novo hearing and decision. 24 Date: June 23, 2017 Respectfully submitted, 25/s/Howard D. Olinsky 26 Howard D. Olinsky, Esq. Admitted Pro Hac Vice 27 Attorney for Plaintiff 28 Reply Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 7 Case 3:16-cv-00285-HRH Document 19 Filed 06/23/17 Page 7 of 9 1 Olinsky Law Group 300 South State Street 2 Syracuse, New York 13202 3 Telephone: (315) 701-5780 Fax: (315) 701-5781 4 NVR/akv holinsky@windisability.com 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 8 Case 3:16-cv-00285-HRH Document 19 Filed 06/23/17 Page 8 of 9 1 CERTIFICATE OF SERVICE 2 3 This is to certify that I have this day served counsel for the Defendant with Plaintiff’s Opening Brief by filing the foregoing on the Court’s ECF system, which sent electronic notice to the 4 following recipients: 5 6 DAPHNE BANAY Special Assistant United States Attorney 7 Office of the General Counsel 8 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 9 Seattle, WA 98104-7075 Telephone: (206) 615-2113 10 Fax: (206) 615-2531 11 daphne.banay@ssa.gov 12 This 23rd day of June, 2017. 13 14/s/Howard D. Olinsky 15 Howard D. Olinsky, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply Brief (Social Security) Robert Charles Marshall v. Berryhill Case No. 3:16-CV-00285-HRH 9 Case 3:16-cv-00285-HRH Document 19 Filed 06/23/17 Page 9 of 9

ORDER affirming the Commissioner's decision. Signed by Judge H. Russel Holland on 9/20/17.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA ROBERT CHARLES MARSHALL,)) Plaintiff,)) vs.)) NANCY A. BERRYHILL, acting) Commissioner of Social Security,)) No. 3:16-cv-0285-HRH Defendant.) _______________________________________) ORDER This is an action for judicial review of the denial of disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff Robert Charles Marshall has timely filed his opening brief,1 to which defendant Nancy A. Berryhill has responded.2 Oral argument was not requested and is not deemed necessary. Procedural Background On October 8, 2014, plaintiff filed an application for disability benefits under Title II of the Social Security Act. Plaintiff alleged that he became disabled on June 1, 2013. Plaintiff alleges that he is disabled due to PTSD, bilateral degenerative shoulder with 1 Docket No. 16. 2 Docket No. 18.-1-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 1 of 24 tendinitis, subcortical white matter disease, obstructive sleep apnea, agoraphobia, depression, adult attention deficit disorder, and memory and cognitive issues. Plaintiff’s application was denied initially on January 7, 2016. After a hearing on July 7, 2016, an administrative law judge (ALJ) denied plaintiff’s application. On October 25, 2016, the Appeals Council denied plaintiff’s request for review, thereby making the ALJ’s August 19, 2016 decision the final decision of the Commissioner. On December 15, 2016, plaintiff commenced this action in which he asks the court to find that he is entitled to disability benefits. General Background Plaintiff was born on July 25, 1962. He was 50 years old at the time of the administrative hearing. Plaintiff has a high school education and is in the process of completing his bachelor’s degree. Plaintiff’s past relevant work includes work as a quality control manager, project manager, first sergeant in the Air Force, and aircraft mechanic. The ALJ’s Decision The ALJ first determined that plaintiff "meets the insured status requirements of the Social Security Act through December 31, 2018."3 The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.4 3 Admin. Rec. at 20. 4 The five steps are as follows: Step one: Is the claimant presently engaged in substantial (continued...)-2-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 2 of 24 At step one, the ALJ found that plaintiff had "not engaged in substantial gainful activity since June 1, 2013, the alleged onset date...."5 At step two, the ALJ found that plaintiff had the following severe impairments: osteoarthritis of shoulders; diabetes mellitus without complications; macrocytosis; degener-ative disc disease of the cervical spine; alcohol abuse; anxiety/post-traumatic stress disorder (PTSD); [and] organic mental disorder/mild cognitive impairment/white matter disease....[6] 4 (...continued) gainful activity? If so, the claimant is not disabled. If not, proceed to step two. Step two: Is the claimant’s alleged impairment sufficiently severe to limit... h[is] ability to work? If so, proceed to step three. If not, the claimant is not disabled. Step three: Does the claimant’s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four. Step four: Does the claimant possess the residual functional capacity ("RFC") to perform... h[is] past relevant work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant’s RFC, when considered with the claimant’s age, education, and work experience, allow... h[im] to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). 5 Admin. Rec. at 20. 6 Admin. Rec. at 20.-3-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 3 of 24 These findings were based on the testimony of Dr. Lebeau, the medical expert.7 At step three, the ALJ found that plaintiff did "not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1...."8 This finding was based on the testimony of Dr. Lebeau.9 The ALJ considered Listings 1.02 (major dysfunction of joint), 1.04 (disorders of the spine), 9.00 (endocrine disorders), 12.02 (neurocognitive disorders), 12.06 (anxiety and obsessive-compulsive disorders), and former 12.09 (substance addiction disorders).10 The ALJ considered the "paragraph B" criteria and found that plaintiff had mild restriction in activities of daily living; mild difficulties with social functioning; moderate difficulties with regard to concentration, persistence, or pace; and no episodes of decompensation, which have been of extended periods.11 The ALJ also found that the "paragraph C" criteria had not been met.12 "Between steps three and four, the ALJ must, as an intermediate step, assess the claimant’s RFC." Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 7 Admin. Rec. at 20-21. Jack Lebeau, M.D., testified as the medical expert at the administrative hearing. Admin. Rec. at 45-58. 8 Admin. Rec. at 21. 9 Admin. Rec. at 21. 10 Admin. Rec. at 21-22. 11 Admin. Rec. at 22. 12 Admin. Rec. at 23.-4-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 4 of 24 2009). The ALJ found that plaintiff has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except he can lift/carry up to 20 pounds frequently and 50 pounds occasionally; he would need a sit/stand option allowing him to alterna[te] sitting or standing positions throughout the day; he can frequently climb ramps/stairs, stoop, kneel, crouch, and crawl; he can occasion-ally climb ladders, ropes or scaffolds; he can frequently reach overhead with the bilateral upper extremities; he can have frequent exposure to moving and hazardous machinery; he can have occasional exposure to unprotected heights; and he would be limited to semi-skilled work as defined by the Social Security Administration.[13] The ALJ found plaintiff’s pain and symptom statements less than credible because plaintiff stopped working at his "highly skilled" job because he was laid off and not because of his alleged limitations; because his statements were inconsistent with his activities of daily living; and because his statements were inconsistent with the record as a whole.14 The ALJ gave great weight15 to Dr. Lebeau’s opinion.16 The ALJ gave significant 13 Admin. Rec. at 23. 14 Admin. Rec. at 24-26. 15 Admin. Rec. at 28. 16 Dr. Lebeau opined that plaintiff could continuously lift/carry 10 pounds; frequently lift/carry 20 pounds; occasionally lift/carry 50 pounds; sit for 7 hours; stand for 4 hours; walk for 2 hours; frequently overhead reach; frequently climb ramps/stairs; occasionally climb ladders/scaffolds; balance continuously; frequently stoop, kneel, crawl, and crouch; occasionally be around unprotected heights; frequently be around moving machinery; and would need protection from noise for anything beyond very loud, heavy traffic. Admin. Rec. at 51-52.-5-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 5 of 24 weight17 to Dr. Caldwell’s opinion.18 The ALJ gave little weight to Dr. Pace’s opinions.19 The ALJ gave great weight to Dr. Jones’ paragraph B assessments, some weight to her mental limitations, and "to the extent Dr. Jones’ assessments are more limiting than for semi-skilled work," the ALJ gave them "little weight."20 The ALJ gave some weight21 to Dr. Rose’s opinion as to plaintiff’s mental limitations but only little weight to his opinion as to 17 Admin. Rec. at 29. 18 On November 1, 2015, Jay Caldwell, M.D., opined that plaintiff could occasionally lift/carry 50 pounds; frequently lift/carry 10 pounds; stand/walk for 6 hours; sit for 6 hours; frequently push/pull with right upper extremities; had no limitations as to pushing/pulling with left upper extremities or lower extremities; could occasionally climb ladders/scaffolds; had no limitations as to climbing ramps/stairs, balancing, stooping, kneeling, crouching, or crawling; was limited as to reaching and handling; had no limitations as to fingering and feeling; should avoid concentrated exposure to extreme cold, extreme heat, wetness, humidity, noise, fumes, odors, dust, gases, poor ventilation, and hazards; and should avoid moderate exposure to vibration. Admin. Rec. at 844-848. 19 Admin. Rec. at 29. Dr. Pace’s opinions are discussed below in detail. 20 Admin. Rec. at 29. On January 7, 2016, Laura Jones, Ph.D., a non-examining source, opined that plaintiff had mild restrictions of activities of daily living; mild difficulties maintaining social functioning; moderate difficulties maintaining concentration, persistence, or pace; and no repeated episodes of decompensation, of extended duration. Admin. Rec. at 86. Dr. Jones also opined that plaintiff was moderately limited in his ability to remember locations and work-like procedures and to understand, remember, and carry out detailed instructions. Admin. Rec. at 88-89. And, Dr. Jones opined that plaintiff would "need to be able to refer to written instructions while in training and beyond due to memory issues. He will need to have training materials well explained and in a concrete manner. [He] retains the ability to understand, retain, and follow instructions and sustain attention to perform simple repetitive tasks for 8 hours per day and 5 days a week." Admin. Rec. at 89. 21 Admin. Rec. at 29-30.-6-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 6 of 24 plaintiff’s physical limitations.22 The ALJ gave some weight23 to Mr. Collins’ opinions.24 The ALJ gave minimal weight to plaintiff’s VA disability ratings.25 The ALJ gave little weight to the lay testimony of plaintiff’s wife.26 22 On December 3, 2015, Michael C. Rose, Ph.D., evaluated plaintiff and opined that Mr. Marshall has the ability to understand, retain and follow instructions and sustain attention to perform simple repetitive tasks. Concentration, persistence and pace appear to be gener-ally within the average range. There are no restrictions on daily activities. There are no apparent difficulties in his ability to maintain appropriate social functioning. There are no indica-tions from the assessment findings he presents a risk to emotion-ally deteriorate or psychologically decompensate in work like situations. He can probably respond appropriately to coworkers, supervisors and the public, and he appears able to meet work demands with respect to attendance, safety, and following procedures and policies. He can accept supervision that is concrete and well explained. His ability to perform functional activities such as sitting, standing, moving about, lifting, carrying and handling objects appears generally satisfactory. He has the ability to manage funds independently. Admin. Rec. at 861. 23 Admin. Rec. at 30. 24 In April 2014, plaintiff had two exams which were completed for the purpose of updating his VA disability ratings. The exams were done by a PA, Jason Collins. Collins opined that "[t]he impact of [plaintiff’s] shoulder/arm condition(s) on the claimant’s ability to work is trouble lifting arm or doing physical work with right arm." Admin. Rec. at 900. Collins also opined that "[t]he impact of the thoracolumbar spine condition on the claimant’s ability to work is pain with bending or lifting." Admin. Rec. at 909. 25 Admin. Rec. at 30-31. Plaintiff’s VA disability ratings are discussed below in detail. 26 Admin. Rec. at 31. Plaintiff’s wife, Kimberly Marshall, completed a third-party (continued...)-7-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 7 of 24 At step four, the ALJ found that plaintiff "is unable to perform any past relevant work...."27 At step five, the ALJ found that "there are jobs that exist in significant numbers in the national economy that the claimant can perform...."28 The ALJ found that plaintiff could work as a small parts assembler, a general office clerk, or a recreational facility attendant.29 This finding was based on the testimony of the vocational expert.30 Thus, the ALJ concluded that plaintiff had "not been under a disability, as defined in the Social Security Act, from June 1, 2013, through the date of this decision...."31 Standard of Review Pursuant to 42 U.S.C. § 405(g), the court has the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner...." The court "properly affirms the Commissioner’s decision denying benefits if it is supported by substantial evidence and based on the application of correct legal 26 (...continued) function report on October 12, 2015. Admin. Rec. at 210-218. 27 Admin. Rec. at 31. 28 Admin. Rec. at 32. 29 Admin. Rec. at 32. 30 Admin. Rec. at 32. Daniel LaBrosse testified as the vocational expert. Admin. Rec. at 71-78. 31 Admin. Rec. at 32.-8-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 8 of 24 standards." Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). "Substantial evidence is'more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’" Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). "‘To determine whether substantial evidence supports the ALJ’s decision, [the court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ’s conclu-sion.’" Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than one reasonable interpretation, the court must uphold the Commissioner’s decision. Id. But, the Commissioner’s decision cannot be affirmed "‘simply by isolating a specific quantum of supporting evidence.’" Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Discussion Plaintiff first argues that the ALJ erred in failing to discuss Dr. Gould’s opinion. On April 25, 2014, Dr. Gould examined plaintiff for the purpose of updating plaintiff’s VA disability ratings. Dr. Gould completed a PTSD Diagnostic Criteria form, on which he noted that plaintiff had a persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, persistent inability to experience positive emotions, irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, problems with concentration, and sleep-9-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 9 of 24 disturbance.32 Dr. Gould also noted that plaintiff’s PTSD symptoms "cause clinically significant distress or impairment in social, occupational or other important areas of functioning[.]"33 Dr. Gould also noted that the symptoms associated with plaintiff’s mental health diagnoses include "[p]anic attacks more than once a week" and "[d]ifficulty in adapting to stressful circumstances, including work or a worklike setting."34 The ALJ did not mention Dr. Gould’s opinion in his decision. It is error for an ALJ to "‘completely ignore[] or neglect[] to mention [an examining] physician’s medical opinion that is relevant to the medical evidence being discussed.’" Gerhard v. Colvin, 3:12–cv–05551–RBL–KLS, 2013 WL 1914413, at *6 (W.D. Wash. April 15, 2013) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1045 (9th Cir. 2007)). The question here is whether this error was harmless. An error is harmless if it is "inconsequential to the ultimate nondisability determina-tion....’" Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (quoting Stout, 454 F.3d at 1055). The court "‘cannot consider [an] error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination.’" Id. (quoting Stout, 454 F.3d at 1056). Plaintiff argues that the ALJ’s failure to consider Dr. Gould’s opinion was not 32 Admin. Rec. at 922-923. 33 Admin. Rec. at 923. 34 Admin. Rec. at 923-924.-10-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 10 of 24 harmless because Dr. Gould’s opinion, along with other evidence in the record, could have resulted in a finding that plaintiff met the listing for anxiety-related disorders. In order to meet Listing 12.06 for an anxiety disorder, plaintiff must have three or more of the following: a. Restlessness; b. Easily fatigued; c. Difficulty concentrating; d. Irritability; e. Muscle tension; or f. Sleep disturbance. and Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F): 1. Understand, remember, or apply information (see 12.00E1). 2. Interact with others (see 12.00E2). 3. Concentrate, persist, or maintain pace (see 12.00E3). 4. Adapt or manage oneself (see 12.00E4). Plaintiff argues that Dr. Gould’s opinion shows that he had sleep disturbance and irritability and that other medical records show that he had fatigue, restlessness, and difficulty concentrating and that he had at least two marked limitations. Plaintiff argues that it is at least possible that if the ALJ had considered Dr. Gould’s opinion, the ALJ would have reached a different conclusion, in part, because plaintiff contends that Dr. Gould’s opinion lends more credence to Dr. Pace’s opinion that plaintiff had marked limitations in some areas of mental functioning.-11-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 11 of 24 The ALJ’s failure to mention Dr. Gould’s opinion was harmless. Dr. Gould’s opinion was expressed in a check-the-box form that asked Dr. Gould to "check criteria used for establishing the current PTSD diagnosis" and to "check all symptoms that apply to the Veterans [sic] diagnoses[.]"35 By filling out this form, Dr. Gould was indicating that plaintiff met the criteria for a PTSD diagnosis and that he had some symptoms related to his mental health impairments. In other words, Dr. Gould opined that plaintiff had PTSD and had some symptoms related to that diagnosis and his other mental health diagnoses. The ALJ, in turn, found that plaintiff’s PTSD was a severe impairment and that plaintiff had some symptoms associated with his mental health impairments. The ALJ’s RFC might have included some additional limitations if the ALJ had considered Dr. Gould’s opinion, such as limiting plaintiff to a low-stress job. But these additional limitations would not have resulted in a finding of disability, particularly since, as is discussed below, the ALJ did not err in rejecting Dr. Pace’s opinion. Without Dr. Pace’s opinion, plaintiff could not have possibly met Listing 12.06. The court can confidently conclude that if the ALJ had credited Dr. Gould’s opinion as true, the ALJ would have still found that plaintiff was not disabled. Thus, the ALJ’s failure to consider Dr. Gould’s opinion was harmless. Plaintiff next argues that the ALJ erred in rejecting Dr. Pace’s opinion as to plaintiff’s mental functioning.36 Dr. Pace was a VA psychiatrist who treated plaintiff’s PTSD, 35 Admin. Rec. at 922-923. 36 Dr. Pace also opined as to plaintiff’s physical limitations. Admin. Rec. at 1083-(continued...)-12-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 12 of 24 depression, and other mental impairments. On April 7, 2016, Dr. Pace opined that plaintiff had marked limitations in his ability to remember locations and work-like procedures, understand and remember simple and detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, and work in coordination with or in proximity to others without being distracted by them; had moderate limitations in his ability to carry out simple instructions, sustain an ordinary routine without special supervision, make simple work-related decisions, complete a normal workday and a normal workweek without interruptions from psychologi-cally based symptoms, perform at a consistent pace with a standard number and length of breaks, respond appropriately to changes in the work setting, and set realistic goals or make plans independently of others; and had slight limitations in his ability to perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, interact appropriately with the general public, ask simple questions or request assistance, maintain socially appropriate behavior, adhere to basic standards of neatness and cleanliness, and travel to unfamiliar places or use public transportation.37 Dr. Pace also opined that plaintiff would be absent from work 2 days a week.38 "As a general rule, more weight should be given to the opinion of a treating source 36 (...continued) 1084. This opinion is not at issue here. 37 Admin. Rec. at 1086-1088. 38 Admin. Rec. at 1087.-13-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 13 of 24 than to the opinion of doctors who do not treat the claimant." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). "At least where the treating doctor’s opinion is not contradicted by another doctor, it may be rejected only for'clear and convincing’ reasons." Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). "[I]f the treating doctor’s opinion is contradicted by another doctor, the Commissioner may not reject this opinion without providing'specific and legitimate reasons’ supported by substantial evidence in the record for so doing." Id. (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Dr. Pace’s opinion was contradicted by Dr. Jones’ opinion. Thus, the ALJ was required to give specific and legitimate reasons for rejecting Dr. Pace’s opinion. The ALJ rejected Dr. Pace’s opinion because "it [was] not supported by reference to objective findings in the medical record and is not consistent with his own treatment records (which... noted medications to be helpful, described the claimant’s reports of doing well in classes, and reflected largely unremarkable mental status findings)."39 Plaintiff argues that these were not legitimate reasons. The first reason given by the ALJ was that Dr. Pace did not refer to any objective findings in support of his opinion. An ALJ may properly reject an opinion that is not supported by any medical evidence. Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014). The basis for a treating physician’s opinion may be found in his treatment notes. Id. But, 39 Admin. Rec. at 30.-14-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 14 of 24 here, the ALJ found that Dr. Pace’s treatment records were inconsistent with his opinion.40 Plaintiff argues that Dr. Pace’s opinion was not inconsistent with his treatment notes because it is possible that the unremarkable mental status findings were assessed on good days, as opposed to bad days. Plaintiff also argues that the ALJ did not explain how PTSD following combat that had to be treated with psychotherapy and psychotropic medications could be considered "unremarkable". The ALJ did not find that plaintiff’s PTSD was unremarkable. Rather, the ALJ found that plaintiff often had unremarkable mental status findings and that Dr. Pace’s treatment notes did not support the limitations that Dr. Pace opined plaintiff had. This was a legitimate reason for the ALJ to reject Dr. Pace’s opinion. Dr. Pace’s opinion was inconsistent with his treatment notes. Dr. Pace’s treatment notes show that medications were effective in treating plaintiff’s mental health, that plaintiff was doing well, or at least okay, in his college classes, and that plaintiff’s mental status exams were often unremarkable,41 all of which are inconsistent with the marked limitations that Dr. Pace opined plaintiff had. Plaintiff also complains that the ALJ did not "recite" the factors in 20 C.F.R. § 404.1527(c), which are used to assess a treating physician’s opinion. "These factors are length of the treatment relationship and the frequency of examination, nature and extent of the treatment relationship,'supportability,’ consistency, specialization, and other factors that 40 Contrary to plaintiff’s contention, the ALJ did not reject Dr. Pace’s opinion because he did not provide any treatment. 41 Admin. Rec. at 597, 611, 613, 633, 637-638, 650, 675, 702, 740, 1081, 1100.-15-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 15 of 24 tend to support or contradict the opinion[.]" Garrison v. Colvin, 759 F.3d 995, 1012 n.11 (9th Cir. 2014) (internal citations omitted). "‘[T]he regulation requires the ALJ to consider certain factors, but does not require the ALJ to recite and discuss each of the factors in the written decision.’" Gilliland v. Colvin, 67 F. Supp. 3d 308, 317 (D.D.C. 2014) (quoting Paris v. Astrue, 888 F. Supp. 2d 100, 105 (D.D.C. 2012)). The ALJ plainly considered some or all of these factors when assessing Dr. Pace’s opinion. The ALJ acknowledged that Dr. Pace was plaintiff’s treating psychiatrist and the ALJ discussed supportability and consistency.42 The ALJ found that Dr. Pace’s opinion was not supported by his treatment notes, which was a legitimate reason for the ALJ to reject Dr. Pace’s opinion. The ALJ did not err in rejecting Dr. Pace’s opinion as to plaintiff’s mental functioning. Plaintiff next argues that the ALJ erred in finding his pain and symptom statements less than credible. "An ALJ engages in a two-step analysis to determine whether a claimant’s testimony regarding subjective pain or symptoms is credible." Garrison, 759 F.3d at 1014. "‘First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.’" Id. (quoting Lingenfelter, 504 F.3d at 1035-36). "In this analysis, the claimant is not required to show'that h[is] impairment could reasonably be expected to cause the severity of the symptom []he has alleged; []he need only show that it 42 Admin. Rec. at 30.-16-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 16 of 24 could reasonably have caused some degree of the symptom.’" Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). "Nor must a claimant produce'objective medical evidence of the pain or fatigue itself, or the severity thereof.’" Id. (quoting Smolen, 80 F.3d at 1282). "If the claimant satisfies the first step of this analysis, and there is no evidence of malingering,'the ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.’" Id. at 1014-15 (quoting Smolen, 80 F.3d at 1281). "This is not an easy requirement to meet:'The clear and convincing standard is the most demanding required in Social Security cases.’" Id. at 1015 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). "In evaluating the claimant’s testimony, the ALJ may use'ordinary techniques of credibility evaluation.’" Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Turner v. Comm’r of Social Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010)). "For instance, the ALJ may consider inconsistencies either in the claimant’s testimony or between the testimony and the claimant’s conduct, unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and whether the claimant engages in daily activities inconsistent with the alleged symptoms[.]" Id. (internal citations omitted). The ALJ found plaintiff’s pain and symptom statements less than credible because plaintiff stopped working at his "highly skilled" job because he was laid off and not because of his alleged limitations, because his statements were inconsistent with his activities of daily living, and because his statements were inconsistent with the record as a whole. Plaintiff-17-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 17 of 24 argues that these were not clear and convincing reasons. The first reason given by the ALJ was that plaintiff quit working for reasons other than his alleged impairments. Prior to his alleged onset date, plaintiff was working as a project manager.43 Plaintiff reported that in this job, he was responsible for 20 employees, "several thousand inventory items and a multi-million dollar contract to the U.S. Military[.]"44 Plaintiff reported that he stopped working because he was laid off45 and Dr. Sponsler46 noted that plaintiff stated that he "recently lost his job due to contract discontinua-tion."47 An ALJ may properly discount a claimant’s statements if the claimant quit working for a reason other than his impairments. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). Plaintiff argues that the ALJ should have instead considered the fact that he had an excellent work history, but the ALJ did not ignore plaintiff’s work history. Rather, the ALJ found it significant that plaintiff had been working at a highly skilled job up until two weeks before his alleged onset date and that plaintiff only quit working because he was laid off. The first reason given by the ALJ was clear and convincing. 43 Admin. Rec. at 220. 44 Admin. Rec. at 220. 45 Admin. Rec. at 186. 46 Jeffrey L. Sponsler, M.D., a neurologist, examined plaintiff on September 19, 2013. Admin. Rec. at 273. 47 Admin. Rec. at 273.-18-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 18 of 24 As for plaintiff’s activities of daily living, the ALJ pointed out48 that the record showed that plaintiff was successfully attending college,49 was working at the vet center as part of a work study program,50 could help take care of his pets and children,51 could make his own meals,52 could mow the lawn and do household repairs,53 could drive and go shopping,54 could handle money,55 and could go hunting and fishing.56 The ALJ found it particularly significant that plaintiff was attending college, and the ALJ noted that plaintiff "testified that he was able to go to school... only because of significant services provided by his college, such as counselors helping him get into the right classes, extra time for tests, and extra help from instructors[.]"57 But, the ALJ pointed out that "there are no records from the 48 Admin. Rec. at 25. 49 Admin. Rec. at 60, 638, 1099. 50 Admin. Rec. at 211, 235, 650, 868, 1099. 51 Admin. Rec. at 232. 52 Admin. Rec. at 233. 53 Admin. Rec. at 233. 54 Admin. Rec. at 234. 55 Admin. Rec. at 234. 56 Admin. Rec. at 214, 235, 638, 674, 854. 57 Admin. Rec. at 25. At the administrative hearing, plaintiff testified the college provides a disabled student thing that – it’s an office where they help you to get into the right classes. They give you (continued...)-19-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 19 of 24 claimant’s college to support" his testimony.58 "[T]he ALJ may discredit a claimant’s testimony when the claimant reports participation in everyday activities indicating capacities that are transferable to a work setting[.]" Molina, 674 F.3d at 1113. "Even where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant’s testimony to the extent that they contradict claims of a totally debilitating impairment." Id. Here, the ALJ noted that plaintiff’s attending college indicated that plaintiff could read, retain information, and concentrate,59 capacities that are transferable to a work setting. The second reason given by the ALJ for finding plaintiff’s pain and symptom statements less than credible was clear and convincing. As for the third reason, the lack of supporting medical evidence "is a factor the ALJ 57 (...continued) programs. All my books, my textbooks are turned into docu-ments. And they also gave me a program that I can take those documents and put them into this program so I can listen to it and read it on my monitor because... I can read a paragraph 50 times and I still have no idea what it says anymore.... I also have phenomenal counselors and instruct[ors] that would help me to get into the right classes.... [T]hey get me into classes where I can do take home tests, I get extra time because I’m in the DSS program. Admin. Rec. at 61. Plaintiff also testified that he got extra time in which to take his tests and is allowed to sit in a room by himself. Admin. Rec. at 64. 58 Admin. Rec. at 25. 59 Admin. Rec. at 25.-20-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 20 of 24 can consider in his credibility analysis." Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). This was a clear and convincing reason because the record shows that despite plaintiff’s claims of memory problems and difficulties with concentration, in 2013, he read at a college-level, had low-average memory, had normal immediate and remote recall, and no impairment to perform complex intellectual tasks;60 and in 2015, his memory was still in the low average range and his concentration abilities were in the average range.61 In addition, plaintiff’s providers often noted that he did not appear to be suffering from anxiety or depression symptoms,62 and the objective findings as to plaintiff’s physical impairments were often mild.63 60 Admin. Rec. at 276, 281, 284. 61 Admin. Rec. at 861. 62 Admin. Rec. at 332, 388-389, 484-485, 509-510, 518-519. 63 Admin. Rec. at 275-276 (September 19, 2013 neurological exam showed "strength is grade 5 in 4 extremities, reflexes are grade 2 in biceps, triceps, quadriceps, ankles, speech is non-dysarthric, language shows good comprehension, sensations fine touch and vibration are normal in 4 extremities, alert and oriented to person, place, date, situation, gait and station are normal, fundoscopic examination is normal, patient has normal immediate and remote recall"); 287 (January 15, 2014 physical exam showed decreased range of motion in plaintiff’s neck and tenderness in the lower posterior cervical spine adjacent to C7 spinous process and lower cervical articular pillars; "pain with cervical flexion. There is pain with cervical facet maneuvers and [m]idline cervical tenderness with palpation. [S]pasms noted bilaterally; trapezius and levator. There was limited ROM [in right shoulder] because of pain. Left Upper Extremity: Tinel’s test is negative and Phalen’s test is negative. Right Upper Extremity: Tinel’s test is negative and Phalen’s test is negative. Tenderness" in the bilateral shoulders"); 307 (June 5, 2013, MRI of plaintiff’s cervical spine showed arthritis "which is pressing on the nerves and causing the numbness in his arms" and physical therapy was recommended); 311 (June 5, 2013 physical exam showed tenderness of the neck, (continued...)-21-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 21 of 24 Finally, plaintiff argues that the ALJ erred as to his VA disability ratings. Plaintiff had the following VA disability ratings: 1) obstructive sleep apnea 50% from 12/01/2008; 2) PTSD, panic disorder with agoraphobia, and adult attention deficit disorder 50% from 12/01/08; 3) degenerative changes, right shoulder 20% from 01/10/2014; 4) recurrent thoracolumbar strain 20% from 01/10/2014; 5) degenerative changes with tendonitis, left shoulder 10% from 12/01/2008; 6) lateral epicondylitis, right elbow 10% from 12/01/2008; 7) degenerative changes, cervical spine 10% from 12/01/2008; 8) patellofemoral compart-ment syndrome, right knee 10% from 12/01/2008; 9) patellofemoral compartment syndrome, left knee 10% from 12/01/2008; 10) tinnitus 10% from 12/01/2008; 11) hypertension 10% from 12/01/2008; 12) gastroesophageal reflux disease with hiatal hernia 10% from 12/01/2008; 13) scar, residual of left palm injury 10% from 12/01/2008; and 14) 63 (...continued) decreased cervical range of motion, and muscle tenderness over trapezius bilaterally); 324 (April 23, 2013 ophthalmology exam showed borderline glaucoma findings); 344-345 (December 6, 2012 physical exam was normal other than for lesions on plaintiff’s back and forearm); 389 (June 22, 2012 physical exam was unremarkable other than it was noted that plaintiff "keeps neck straight without turning it"); 428 (January 3, 2014 musculoskeletal exam showed "+ anterior drawer test, + talar tilt. Minimal crepitus noted and pain to the anterolateral aspect of the ankle in the area of the ATFL. [T]enderness with palpation to the peroneal tendons posterior to the fibula and at the apex. Full muscle strength noted"); 473 (November 14, 2014 shoulder x-rays showed "[t]iny ossific density adjacent to the greater tuberosity of the humeral head suggestive of sequela of chronic calcific rotator cuff tendinopathy" and "[r]ight acromioclavicular osteoarthritis"); 485 (April 23, 2015 physical exam was unremarkable); 510 (December 30, 2014 physical exam was unremarkable), 558 (December 6, 2013 physical exam was unremarkable and electrocardiogram was normal); 588 (July 2, 2013 neurological exam showed "decreased sensation at right fingertips 2-4 compared to left. Strength was reduced right grip compared to left").-22-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 22 of 24 radiculopathy, right lower extremity associated with recurrent thoracolumbar strain 10% from 1/10/2014.64 Plaintiff’s combined disability rating was 90% from 12/01/2008 and 100% from 01/10/2014.65 The ALJ gave plaintiff’s 100% disability rating from the VA "minimal weight".66 "[A]n ALJ must ordinarily give great weight to a VA determination of disability." McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). "[T]he ALJ may give less weight to a VA disability rating if he gives persuasive, specific, valid reasons for doing so that are supported by the record. Id. The ALJ gave plaintiff’s disability rating minimal weight because of the differences between the VA disability program and the Social Security disability program, because the VA rating was not consistent with the medical evidence, and because of plaintiff’s "robust activities, which include attending school and recreational activities such as hunting and fishing[.]"67 Plaintiff argues that these were not valid reasons. The first reason given by the ALJ was not valid. The Ninth Circuit has explained that VA disability ratings are generally entitled to great weight "because of the marked similarity between these two federal disability programs." Id. However, the second and third reasons given by the ALJ were persuasive and valid. 64 Admin. Rec. at 300-301. 65 Admin. Rec. at 302. 66 Admin. Rec. at 31. 67 Admin. Rec. at 31.-23-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 23 of 24 As discussed above in connection with the ALJ’s credibility findings, plaintiff’s activities of daily living are inconsistent with his claim that he is not able to work full-time at any job. The 100% VA disability rating is also inconsistent with the medical evidence of record. As discussed above, the findings as to plaintiff’s physical impairments have been mild. As for the medical evidence associated with plaintiff’s mental impairments, as discussed above, this evidence shows that plaintiff’s mental status exam findings were often unremarkable and that he was doing well, or at least okay, in college. The ALJ did not err in giving plaintiff’s 100% VA disability rating minimal weight. Conclusion Based on the foregoing, the Commissioner’s decision is affirmed. The clerk of court shall enter judgment dismissing plaintiff’s complaint with prejudice. DATED at Anchorage, Alaska, this 20th day of September, 2017./s/H. Russel Holland United States District Judge-24-Case 3:16-cv-00285-HRH Document 20 Filed 09/20/17 Page 24 of 24

JUDGMENT: The Commissioner's decision is affirmed. The plaintiff's complaint is dismissed with prejudice. Signed by Judge H. Russel Holland on 9/25/17.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA ROBERT CHARLES MARSHALL, Plaintiff, Case Number 3:16-cv-00285-HRH v. NANCY A. BERRYHILL, Defendant. JUDGMENT IN A CIVIL CASE JURY VERDICT. This action came before the court for a trial by jury. The issues have been tried and the jury has rendered its verdict. XX DECISION BY COURT. This action came before the Court. The issues have been heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED: THAT the Commissioner's decision is affirmed. The plaintiff's complaint is dismissed with prejudice. APPROVED: s/H. Russel Holland H. Russel Holland United States District Judge Date: September 25, 2017 NOTE: Award of prejudgment interest, costs and attorney's fees are governed Lesley K. Allen by D.Ak. LR 54.1, 54.3, and 58.1. Clerk of Court [Jmt2-Basic-rev. 1-13-16} Case 3:16-cv-00285-HRH Document 21 Filed 09/25/17 Page 1 of 1

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Description
1
12/15/2016
COMPLAINT against Carolyn W. Colvin, filed by Robert Charles Marshall.
1
Exhibit A - SSA Letter
1 Attachment
2
12/15/2016
Civil Cover Sheet
3
12/15/2016
MOTION for Leave to Proceed in forma pauperis by Robert Charles Marshall.
4
12/15/2016
Unissued summons re Defendant C. Colvin
1
Unissued Summons re Defendant USAG
2
Unissued Summons re Defendant USAO
2 Attachments
5
12/19/2016
ORDER granting 3 Mot for Leave to Proceed IFP; svc to be completed w/i 90 days from filing of cmplt, def has 60 days after receipt of sums & cmplt to respond. Signed by Judge H. Russel Holland on 12/19/16. cc: Finance
12/19/2016
Summons Issued as to Carolyn W. Colvin, U.S. Attorney and U.S. Attorney General (Text entry; no document attached.)
6
01/17/2017
SUMMONS Returned Executed by Robert Charles Marshall. Carolyn W. Colvin served on 1/11/2017, answer due 3/13/2017.
7
01/25/2017
NOTICE of Appearance by Richard L. Pomeroy on behalf of Carolyn W. Colvin
8
01/26/2017
SOCIAL SECURITY SCHEDULING ORDER: agency record due w/i 60 days of def's appearance; plf's opening brf due w/i 30 days after filing of agency record; def's ans brf due w/i 30 days after svc of plf's opening brf; plf's reply brf due w/i 14 days after svc of def's brf. Signed by Judge H. Russel Holland on 1/26/17.
02/23/2017
Docket Annotation: Nancy A. Berryhill; Acting Commissioner of Social Security, represented by Richard Pomeroy substituted for Carolyn W. Colvin (acting Commissioner of Social Security) pursuant to FRCvP 25(d)(1). (Text entry; no document attached.)
9
03/09/2017
NOTICE of Appearance by Daphne Banay on behalf of Nancy A. Berryhill
10
03/13/2017
ANSWER to 1 Complaint by Nancy A. Berryhill.
11
03/13/2017
Notice of Lodging Administrative Record
1
Certification Page
2
Court Transcript Index
3
Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable
4
Payment Documents and Decisions
5
Jurisdictional Documents and Notices
6
Non Disability Related Development
7
Disability Related Development
8
Medical Records Part 1
9
Medical Records Part 2
10
Medical Records Part 3
11
Medical Records Part 4
12
Medical Records Part 5
13
Medical Records Part 6
14
Medical Records Part 7
14 Attachments
12
04/05/2017
MOTION for Extension of Time to File (Unopposed) by Robert Charles Marshall.
1
Proposed Order
1 Attachment
13
04/06/2017
ORDER granting 12 Mot for Ext of Time to File; opening brf due 5/10/17.
14
04/20/2017
MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Howard D. Olinsky. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2318860.) by Robert Charles Marshall.
1
Certificate of Good Standing
1 Attachment
15
04/24/2017
ORDER granting 14 Application of Non-Resident Attorney.
16
05/10/2017
MOTION to Remand to Social Security by Robert Charles Marshall.
17
06/06/2017
NOTICE of Appearance by Catherine Cecilia Escobar on behalf of Nancy A. Berryhill
18
06/09/2017
RESPONSE in Opposition re 16 MOTION to Remand to Social Security filed by Nancy A. Berryhill.
19
06/23/2017
REPLY to Response to Motion re [16] MOTION to Remand to Social Security filed by Robert Charles Marshall.
20
09/20/2017
ORDER affirming the Commissioner's decision. Signed by Judge H. Russel Holland on 9/20/17.
21
09/25/2017
JUDGMENT: The Commissioner's decision is affirmed. The plaintiff's complaint is dismissed with prejudice. Signed by Judge H. Russel Holland on 9/25/17.
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