Marshall v. Colvin
Court Docket Sheet

District of Alaska

4:2016-cv-00012 (akd)

JUDGMENT that matter remanded to SSA for further proceedings. Signed by Judge Sharon L. Gleason on 3/31/17. (Additional attachment(s) added on 6/29/2017: # (1) Judgment w/atty fees, costs, expenses added. NEF Regenerated.)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA ROBERT O. MARSHALL, Plaintiff, Case Number 4:16-cv-00012-SLG v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 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. X DECISION BY COURT. This action came to trial or decision before the Court. The issues have been tried or determined and a decision has been rendered. IT IS ORDERED AND ADJUDGED: THAT the Commissioner's final decision is VACATED and the case is REMANDED to the Social Security Administration consistent with the decision filed at docket 12. APPROVED:/s/Sharon L. Gleason SHARON L. GLEASON United States District Judge Date: March 31, 2017 NOTE: Award of prejudgment interest, Lesley K. Allen 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 4:16-cv-00012-SLG Document 13 Filed 03/31/17 Page 1 of 1

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--2318820.) by Robert Olin Marshall.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA ROBERT OLIN MARSHALL, Case No. 4:16-cv-00012-SLG 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 Olin 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 4:16-cv-00012-SLG 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 4:16-cv-00012-SLG Document 14 Filed 04/20/17 Page 2 of 4 DECLARATION OF NON-ELIGIBLE ATTORNEY Full Name: Howard D. Olinksy 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 4:16-cv-00012-SLG 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 4:16-cv-00012-SLG 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 4:16-cv-00012-SLG Document 14-1 Filed 04/20/17 Page 1 of 1

First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Robert Olin Marshall.

HOWARD D. OLINSKY, Esq. New York No. 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA ROBERT OLIN MARSHALL, Plaintiff, Civil Action No. 4:16-CV-00012-SLG v-COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------Motion for Attorney’s Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 COMES NOW Plaintiff, by his attorney, Howard D. Olinsky, moves the court for an award to be paid by the Defendant under the Equal Access to Justice Act, 28 USCS § 2412. Plaintiff may receive an award under the Equal Access to Justice Act because he is the prevailing party, is an individual whose net worth did not exceed two million dollars when the action was filed, and the position of the United States and at the agency was not substantially justified. There are no special circumstances in this case which make an award under the EAJA unjust. Case 4:16-cv-00012-SLG Document 16 Filed 05/16/17 Page 1 of 2 This motion is supported by a Declaration of Plaintiff’s attorney, attached time and cost records and an Affidavit and Waiver of Direct Payment by the plaintiff. Executed this May 16, 2017 Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky New York Bar # 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com To: Leisa A. Wolf, Esq. Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3621 Fax: (206) 615-2531 Email: leisa.wolf@ssa.gov Case 4:16-cv-00012-SLG Document 16 Filed 05/16/17 Page 2 of 2

Proposed Order

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA ROBERT OLIN MARSHALL, Plaintiff, Civil Action No. 4:16-CV-00012-SLG-v-COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------(Proposed) Order Awarding Attorney’s Fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) Before the Court is the Motion of Plaintiff, Robert Olin Marshall, for award of attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Based on the pleadings as well as the position of the defendant commissioner, if any, and recognizing the Plaintiff’s waiver of direct payment and assignment of EAJA to his counsel, IT IS HEREBY ORDERED that attorney fees, expenses, and costs in the total amount of Six Thousand Two Hundred Eight Dollars and Forty-Eight Cents ($6,208.48) pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) are awarded to Plaintiff. Astrue v. Ratliff, 130 S.Ct. 2521 (2010). The Court hereby awards EAJA fees, broken down as follows: 1. Plaintiff is awarded $5,791.14 for paralegal and attorney’s fees under 28 U.S.C. § 2412(d); 2. Plaintiff is awarded $17.34 in expenses for Certified Mail for service of Summons and Complaint. 3. Plaintiff is awarded $400.00 in costs for the Filing Fee to commence this civil action. If the U.S. Department of the Treasury determines that Plaintiff’s EAJA fees, expenses, and costs are not subject to offset allowed under the Department of the Treasury’s Offset Program (TOPS), then the check for EAJA fees, expenses, and costs shall be made payable to Plaintiff’s attorney, Howard D. Olinsky. Whether the check is made payable to Plaintiff or to Howard D. Olinsky, the check shall be mailed to Howard D. Olinsky at the following address: Case 4:16-cv-00012-SLG Document 16-1 Filed 05/16/17 Page 1 of 2 300 South State Street Suite 420 Syracuse, NY 13202 So ordered. Date: ________________ ______________________________ H. Russell Holland United States District Judge [proposed Order proffer: Howard D. Olinsky; copy to Leisa A. Wolf] Case 4:16-cv-00012-SLG Document 16-1 Filed 05/16/17 Page 2 of 2

DECLARATION of Howard D. Olinsky, Esq. re [16] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Robert Olin Marshall.

HOWARD D. OLINSKY, Esq. New York No. 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA ROBERT OLIN MARSHALL, Plaintiff, Civil Action No. 4:16-CV-00012-SLG-v-COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------Attorney’s Affirmation In Support Of Fees Pursuant To the Equal Access to Justice Act, 28 U.S.C. § 2412 ________________________________________ STATE OF NEW YORK) COUNTY OF ONONDAGA) ss: Howard D. Olinsky, affirms and declares as follows: 1. I am an attorney licensed to practice law in the State of New York and admitted to the District of Alaska Federal Court Pro Hac Vice and I am the plaintiff’s attorney in this matter. 2. I make this affirmation knowing that the Court will rely upon it assessing any awards under the Equal Access to Justice Act disposed of under 28 USCS § 2412. 3. There are no special circumstances in this case which make an award under the EAJA unjust. Case 4:16-cv-00012-SLG Document 17 Filed 05/16/17 Page 1 of 3 4. The Court ordered on March 31, 2017 that the above-entitled case be remanded for further proceedings, under the fourth sentence of 42 U.S.C. § 405(g). 5. For the Equal Access to Justice Act, I am requesting an hourly rate of $192.68 for attorney time. See generally, http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 U.S.C.A 9th Circuit EAJA Table. If attorney fees are calculated at this rate for 25.8 hours of work performed, they total $4,971.14. 6. I am also requesting $100.00 per hour for 8.2 hours of paralegal time equaling $820.00. I am requesting $5,791.14 for Counsel Fees which includes both attorney and paralegal time. 7. The time accounting is presented to the court in two fashions. The total compensable time spent by all professional staff (Exhibit A); the total compensable time spent by all attorneys (Exhibit B); the total compensable time spent by paralegals (Exhibit C). The attorneys involved in this case are as follows: Paul B. Eaglin, Esq., Howard D. Olinsky, Esq., and Betsy Shepard, Esq. The Paralegals involved in working on this case are as follows: Shannon Persse, Michelle Callahan, Michael Smith, and Tamica Lockwood. 8. I am requesting reimbursement of expenses in the amount $17.34 for Certified Mail for service of the summons and complaint as shown in Exhibit D. 9. I am requesting reimbursement of costs in the amount of $400.00 for the filing fee to initiate this civil action as shown in Exhibit E. 9. All services on this case were rendered by your affiant and my professional staff, unless specifically noted otherwise. The attached records were created and stored in the firms Prevail Database, and are printed out and attached. The itemized time represents hours spent preparing and handling this case for U.S. District Court. Clerical time is not included in this petition or has been zeroed out. Case 4:16-cv-00012-SLG Document 17 Filed 05/16/17 Page 2 of 3 10. Attached is the Fee Agreement duly executed by the plaintiff (Exhibit F). Waiver of Direct Payment of EAJA Fees 11. Attached is an Affidavit and Waiver of Direct Payment duly executed by the plaintiff (ExhibitG). With this Waiver, if Plaintiff owes a debt that qualifies under the Treasury Offset Program (31 USCS § 3716), any payment shall be made payable to the Plaintiff and delivered to the Plaintiff’s attorney. If the United States Department of Treasury determines that Plaintiff owes no debt subject to offset, the government will pay such fees directly to the Plaintiff’s attorney. Astrue v. Ratliff, 560 U.S. 586 (U.S. 2010). Executed this May 16, 2017 Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky New York Bar # 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Email: fedctgroup@windisability.com To: Leisa A. Wolf, Esq. Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3621 Fax: (206) 615-2531 Email: leisa.wolf@ssa.gov Case 4:16-cv-00012-SLG Document 17 Filed 05/16/17 Page 3 of 3

Exhibit A All Professional Time

Exhibit A Ledger Marshall, Robert Olin Date  Subject Hours Timekeeper 12/1/2015 Telephone call with Client re: Initial intake 0.5 Callahan, Michelle 1/5/2016 Telephone call with Client re: Possible representation 0.6 Eaglin, Paul B. 1/5/2016 Telephone call with Client re: Other representation 0 Smith, Michael P. 3/7/2016 Telephone call with Client re: Debt conference call, explained process 0.4 Callahan, Michelle 3/8/2016 Documents received from Client, processed for Attorney review 0.6 Callahan, Michelle 3/9/2016 Review decisions and evidence to determine whether to appeal case 1 Eaglin, Paul B. 3/14/2016 Telephone call with Client re: IFP Assessment 0.2 Smith, Michael P. 3/14/2016 FDC prospect packet prepared for Client completion 0.6 Smith, Michael P. 3/17/2016 FDC packet forms returned via right signature, reviewed for completion 0.3 Smith, Michael P. 3/17/2016 Telephone call with Client re: Confirmation of filing fee received 0.1 Smith, Michael P. 3/22/2016 Draft letter and mail filing fee check to Clerk's office in Fairbanks 0.2 Smith, Michael P. 3/24/2016 Email Initiating case documents to the clerk for filing/docketing 0 Smith, Michael P. 3/24/2016 Draft complaint, proposed summons, civil cover sheet, and letter to clerk 0.7 Eaglin, Paul B. 3/28/2016 Download, file, save and distribute ECF re: Summons issued (notice only) 0 Callahan, Michelle 3/28/2016 Download, file, save and distribute ECF re: Civil Cover Sheet 0 Callahan, Michelle 3/28/2016 Download, file, save and distribute ECF re: Complaint 0 Callahan, Michelle 3/28/2016 Download, file, save and distribute ECF re: Unissued summons 0 Callahan, Michelle 3/28/2016 Review Summons Issued (text notice only) 0.1 Eaglin, Paul B. 4/4/2016 Received and processed Issued Summons via USPS 0.2 Smith, Michael P. 4/4/2016 Review Summons Issued via USPS 0.3 Eaglin, Paul B. 4/6/2016 Federal Court-Service of Process-Prepare Service packets USAO, OGC, AG 0.6 Callahan, Michelle 4/12/2016 Download, file, save and distribute ECF re: NOA Gary M. Guarino 0 Callahan, Michelle 4/12/2016 Review Notice of appearance Gary M. Guarino o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 4/14/2016 Download, file, save and distribute ECF re: NOA Leisa A. Wolf 0 Callahan, Michelle 4/14/2016 Review Notice of appearance Leisa A. Wolf o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 4/14/2016 Download, file, save and distribute ECF re: SS scheduling order 0 Callahan, Michelle 4/14/2016 Review Social Security scheduling order, calendar deadlines on task pad 0.3 Eaglin, Paul B. 4/14/2016 Download, file, save and distribute ECF re: Docket annotation brief event 0 Callahan, Michelle 4/14/2016 Review Docket annotation brief filing event 0.1 Eaglin, Paul B. 4/18/2016 Download, file, save electronic return receipts USAO, OCG and AG 0 Callahan, Michelle 4/27/2016 Combine and file proof of service via CM/ECF 0.3 Callahan, Michelle 4/27/2016 Download, file, save and distribute ECF re: Summons returned executed 0 Callahan, Michelle 4/27/2016 Review Summons executed, record answer due date for monitoring 0.2 Eaglin, Paul B. 6/8/2016 Download, file, save and distribute ECF re: Answer to filed complaint 0 Callahan, Michelle 6/8/2016 Review Answer to filed complaint 0.1 Eaglin, Paul B. 6/8/2016 Download, file and save federal court transcript in ten (10) parts 0.2 Callahan, Michelle 6/8/2016 Combine, OCR, and Live Bookmark federal court transcript (780 pages) 0.8 Callahan, Michelle 6/9/2016 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 6/28/2016 Review CAR, outlining plaintiff's brief 5.7 Shephard, Betsy R. 7/1/2016 Continue reviewing CAR, outlining plaintiff's brief 1.7 Shephard, Betsy R. 34.00 (Type = Time) and (Category = Federal Court)    Case 4:16-cv-00012-SLG Document 17-1 Filed 05/16/17 Page 2 of 3 Date  Subject Hours Timekeeper 7/3/2016 Drafting facts and procedural section 4.9 Shephard, Betsy R. 7/5/2016 Research issues and drafting arguments 6.9 Shephard, Betsy R. 7/6/2016 Sr. Attorney review draft brief, edit, finalize and file brief (n/c for filing) 0 Eaglin, Paul B. 7/6/2016 Download, file, save and distribute ECF re: Motion to remand 0 Eaglin, Paul B. 8/5/2016 Download, file, save and distribute ECF re: Response in Opposition 0 Lockwood, Tamica 8/5/2016 Review Defendant's response in opposition to motion (15 pages) 0.5 Eaglin, Paul B. 8/5/2016 Assign Attorney writer to access/write reply 0.2 Eaglin, Paul B. 8/19/2016 Reviewing Breifing/Reply Assessment-no reply 0.6 Van Auken, Alyssa 2/10/2017 Download, file, save and distribute ECF re: Docket annotation Berryhill 0 Lockwood, Tamica 2/10/2017 Review Docket annotation Berryhill substituted for Colvin 0.1 Eaglin, Paul B. 3/31/2017 Download, file, save and distribute ECF re: Order reversed and remanded 0 Lockwood, Tamica 3/31/2017 Review Order reversing and remanding (28 pages) 0.5 Eaglin, Paul B. 3/31/2017 Download, file, save and distribute ECF re: Judgment 0 Lockwood, Tamica 3/31/2017 Review Judgment in favor of Robert Olin Marshall 0.1 Eaglin, Paul B. 4/4/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 4/5/2017 Telephone call with client re: Remand process and attorney options 0.3 Callahan, Michelle 4/5/2017 Federal Court-Remand referral back to AC/Hearing departments 0.3 Callahan, Michelle 4/28/2017 EAJA Preparation 1.5 Persse, Shannon 5/1/2017 Review EAJA Timeslips, Finalize EAJA Narrative 0.5 Olinsky, Howard D. 5/16/2017 Finalize EAJA Narrative, Time Slips, Exhibits, File per Local Rules 0.9 Persse, Shannon 34.00 (Type = Time) and (Category = Federal Court)    Case 4:16-cv-00012-SLG Document 17-1 Filed 05/16/17 Page 3 of 3

Exhibit B Attorney Time

Exhibit B Ledger Marshall, Robert Olin Date  Subject Hours Timekeeper 1/5/2016 Telephone call with Client re: Possible representation 0.6 Eaglin, Paul B. 3/9/2016 Review decisions and evidence to determine whether to appeal case 1 Eaglin, Paul B. 3/24/2016 Draft complaint, proposed summons, civil cover sheet, and letter to clerk 0.7 Eaglin, Paul B. 3/28/2016 Review Summons Issued (text notice only) 0.1 Eaglin, Paul B. 4/4/2016 Review Summons Issued via USPS 0.3 Eaglin, Paul B. 4/12/2016 Review Notice of appearance Gary M. Guarino o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 4/14/2016 Review Notice of appearance Leisa A. Wolf o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 4/14/2016 Review Social Security scheduling order, calendar deadlines on task pad 0.3 Eaglin, Paul B. 4/14/2016 Review Docket annotation brief filing event 0.1 Eaglin, Paul B. 4/27/2016 Review Summons executed, record answer due date for monitoring 0.2 Eaglin, Paul B. 6/8/2016 Review Answer to filed complaint 0.1 Eaglin, Paul B. 6/9/2016 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 6/28/2016 Review CAR, outlining plaintiff's brief 5.7 Shephard, Betsy R. 7/1/2016 Continue reviewing CAR, outlining plaintiff's brief 1.7 Shephard, Betsy R. 7/3/2016 Drafting facts and procedural section 4.9 Shephard, Betsy R. 7/5/2016 Research issues and drafting arguments 6.9 Shephard, Betsy R. 7/6/2016 Sr. Attorney review draft brief, edit, finalize and file brief (n/c for filing) 0 Eaglin, Paul B. 7/6/2016 Download, file, save and distribute ECF re: Motion to remand 0 Eaglin, Paul B. 8/5/2016 Review Defendant's response in opposition to motion (15 pages) 0.5 Eaglin, Paul B. 8/5/2016 Assign Attorney writer to access/write reply 0.2 Eaglin, Paul B. 8/19/2016 Reviewing Breifing/Reply Assessment-no reply 0.6 Van Auken, Alyssa 2/10/2017 Review Docket annotation Berryhill substituted for Colvin 0.1 Eaglin, Paul B. 3/31/2017 Review Order reversing and remanding (28 pages) 0.5 Eaglin, Paul B. 3/31/2017 Review Judgment in favor of Robert Olin Marshall 0.1 Eaglin, Paul B. 5/1/2017 Review EAJA Timeslips, Finalize EAJA Narrative 0.5 Olinsky, Howard D. 25.80 (Type = Time) and (Category = Federal Court) and ((Timekeeper = Eaglin, Paul B.) or (Timekeeper = Olinsky, Howard D.) or (Tim...    Case 4:16-cv-00012-SLG Document 17-2 Filed 05/16/17 Page 2 of 2

Exhibit C Paralegal Time

Exhibit C Ledger Marshall, Robert Olin Date  Subject Hours Timekeeper 12/1/2015 Telephone call with Client re: Initial intake 0.5 Callahan, Michelle 1/5/2016 Telephone call with Client re: Other representation 0 Smith, Michael P. 3/7/2016 Telephone call with Client re: Debt conference call, explained process 0.4 Callahan, Michelle 3/8/2016 Documents received from Client, processed for Attorney review 0.6 Callahan, Michelle 3/14/2016 Telephone call with Client re: IFP Assessment 0.2 Smith, Michael P. 3/14/2016 FDC prospect packet prepared for Client completion 0.6 Smith, Michael P. 3/17/2016 FDC packet forms returned via right signature, reviewed for completion 0.3 Smith, Michael P. 3/17/2016 Telephone call with Client re: Confirmation of filing fee received 0.1 Smith, Michael P. 3/22/2016 Draft letter and mail filing fee check to Clerk's office in Fairbanks 0.2 Smith, Michael P. 3/24/2016 Email Initiating case documents to the clerk for filing/docketing 0 Smith, Michael P. 3/28/2016 Download, file, save and distribute ECF re: Summons issued (notice only) 0 Callahan, Michelle 3/28/2016 Download, file, save and distribute ECF re: Civil Cover Sheet 0 Callahan, Michelle 3/28/2016 Download, file, save and distribute ECF re: Complaint 0 Callahan, Michelle 3/28/2016 Download, file, save and distribute ECF re: Unissued summons 0 Callahan, Michelle 4/4/2016 Received and processed Issued Summons via USPS 0.2 Smith, Michael P. 4/6/2016 Federal Court-Service of Process-Prepare Service packets USAO, OGC, AG 0.6 Callahan, Michelle 4/12/2016 Download, file, save and distribute ECF re: NOA Gary M. Guarino 0 Callahan, Michelle 4/14/2016 Download, file, save and distribute ECF re: NOA Leisa A. Wolf 0 Callahan, Michelle 4/14/2016 Download, file, save and distribute ECF re: SS scheduling order 0 Callahan, Michelle 4/14/2016 Download, file, save and distribute ECF re: Docket annotation brief event 0 Callahan, Michelle 4/18/2016 Download, file, save electronic return receipts USAO, OCG and AG 0 Callahan, Michelle 4/27/2016 Combine and file proof of service via CM/ECF 0.3 Callahan, Michelle 4/27/2016 Download, file, save and distribute ECF re: Summons returned executed 0 Callahan, Michelle 6/8/2016 Download, file, save and distribute ECF re: Answer to filed complaint 0 Callahan, Michelle 6/8/2016 Download, file and save federal court transcript in ten (10) parts 0.2 Callahan, Michelle 6/8/2016 Combine, OCR, and Live Bookmark federal court transcript (780 pages) 0.8 Callahan, Michelle 8/5/2016 Download, file, save and distribute ECF re: Response in Opposition 0 Lockwood, Tamica 2/10/2017 Download, file, save and distribute ECF re: Docket annotation Berryhill 0 Lockwood, Tamica 3/31/2017 Download, file, save and distribute ECF re: Order reversed and remanded 0 Lockwood, Tamica 3/31/2017 Download, file, save and distribute ECF re: Judgment 0 Lockwood, Tamica 4/4/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 4/5/2017 Telephone call with client re: Remand process and attorney options 0.3 Callahan, Michelle 4/5/2017 Federal Court-Remand referral back to AC/Hearing departments 0.3 Callahan, Michelle 4/28/2017 EAJA Preparation 1.5 Persse, Shannon 5/16/2017 Finalize EAJA Narrative, Time Slips, Exhibits, File per Local Rules 0.9 Persse, Shannon 8.20 (Type = Time) and (Category = Federal Court) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Lockwood, Tamica) or (T...    Case 4:16-cv-00012-SLG Document 17-3 Filed 05/16/17 Page 2 of 2

Exhibit D Expenses

Exhibit D Ledger Marshall, Robert Olin Date  Subject Amount Timekeeper 4/6/2016 Certified Mail Expense re: Federal Court-Service of Process to Defendant's $17.34 Callahan, Michelle $17.34 (Category = FC Expense-)    Case 4:16-cv-00012-SLG Document 17-4 Filed 05/16/17 Page 2 of 2

Exhibit E Costs

Exhibit E Ledger Marshall, Robert Olin Date Subject Amount Timekeeper 3/17/2016 Fed Court Filing Fee Paid $400.00 Smith, Michael P. $400.00 (Type = Fee) and (Category = Federal Court) and (Timekeeper = Smith, Michael P.)    Case 4:16-cv-00012-SLG Document 17-5 Filed 05/16/17 Page 2 of 2

Exhibit F Fee Agreement

Exhibit F FEE AGREEMENT-FEDERAL COURT SOCIAL SECURITY APPEAL 1. SCOPE OF REPRESENTATION: I hereby employ the attorneys at Olinsky Law Group ("OLG" or "my federal court attorney") to represent me during a federal court review of my Social Security case. The scope of representation consists of appealing a final decision that I am not disabled, which was made by the Social Security Administration ("SSA"), to a United States District Court. Representation may also include appealing an unfavorable decision from a United States District Court to a United States Court of Appeals; however an appeal to a United States Court of Appeals is at the discretion of my federal court attorney. References to "federal court" in this agreement will include representation before a United States Court of Appeals if my case is appealed to that court. 2. ATTORNEY’S FEE: I understand that if my federal court attorney wins my case in federal court, which means that either my case is remanded to the SSA for further proceedings pursuant to sentence 4 or sentence 6 of § 205(g) of the Social Security Act and/or the federal court enters a directed finding that I am disabled, my federal court attorney will petition for an award of attorney fees for work performed at the federal court(s) pursuant to the Equal Access to Justice Act ("EAJA"). I understand that an EAJA award is paid by the government, does not come from my back benefits, and any award must be approved by the federal court. I hereby assign any court-awarded EAJA attorney fees to my federal court attorney. I agree that any such payment belongs to my federal court attorney. I authorize my federal court attorney to settle the amount of any EAJA fee using his or her professional judgment. I agree to cooperate in any way that I can so that my federal court attorney’s full fee is authorized. If my federal court attorney receives an EAJA check made payable to me, I hereby explicitly give authority to my federal attorney to endorse the check with my name and deposit it in my federal court attorney’s general office account. I hereby state that my net worth is less than $2,000,000.00. I understand that my federal court attorney may receive the EAJA award as his or her sole compensation for representing me in court. However, I understand that my federal court attorney also has the right to ask the court to award any remaining balance of 25% of my past-due benefits ("406(b) fees") for representing me in federal court. My federal court attorney has this right if the representative, who represents me during remand proceedings, does not collect the full 25% of my past-due benefits during a remand proceeding; and also if (1) my case is remanded pursuant to sentence 6 of § 205(g) of the Social Security Act; or (2) my case is remanded pursuant to sentence 4 of § 205(g) of the Social Security Act and my federal court attorney is unable to collect the authorized EAJA award due to any unpaid federal debt that I may have at the conclusion of the federal case; or if I failed to effectively assign the EAJA award to my federal court attorney; or at the discretion of my federal court attorney. I understand that if the court awards my federal court attorney a fee out of my past-due benefits and also awards an EAJA fee for that same work, my federal court attorney must refund the smaller fee to me. I understand that the SSA will withhold my past-due benefits and will send any approved fee to my federal court attorney. If SSA, through error, fails to withhold my federal court attorney’s fee and pays the legal fee to me by mistake (which sometimes happens), I will pay my federal court attorney promptly from the back benefits I receive. If my retroactive payment is released in installments, I agree that I will pay the entire authorized federal court attorney’s fee from the first installment. I understand that the total fee could amount to many thousands of dollars. I understand that my federal court attorney may seek the maximum fee this contract allows under the law. My federal court attorney does not promise to minimize either the EAJA or 406(b) fees he or she seeks and/or receives. Case 4:16-cv-00012-SLG Document 17-6 Filed 05/16/17 Page 2 of 3 I understand that if my case loses in federal court, which means that the federal court affirms the decision of the SSA that I am not disabled, my federal court attorney is not entitled to a fee for his or her time spent representing me in federal court. 3. CONSENT TO EXCHANGE OF INFORMATION: I agree that the OLG and any representative(s) that represented me before SSA for the case that is being appealed to federal court may share (1) my contact information, (2) information regarding my case in federal court, including documents filed in court, (3) my SSA exhibit file including all my medical records, and (4) information regarding the status of any remand proceedings. I agree that if a federal court remands my case, the OLG may refer my case to Olinsky Disability or to another representative for possible representation on remand. I agree that the OLG may share (1) my contact information, (2) information regarding my federal court case, including documents filed in court, (3) my SSA exhibit file including all my medical records, and (4) information regarding the status of any remand proceedings, with Olinsky Disability or to the other representative. I acknowledge that the United States District Court will issue a written decision on my case, and that decision is a matter of public record which may be published on the internet by case reporting services. 4. TERMINATION OF AGREEMENT AND CONSENT TO PROVIDE UPDATED CONTACT INFORMATION: This agreement terminates at the option of my federal court attorney if we lose at the United States District Court. My federal court attorney will mail me a copy of the court’s final decision at the last address I provide my federal court attorney. I agree to inform my federal court attorney each time I change my mailing address and/or telephone number. 5. I HAVE NOT BEEN PROMISED THAT I WILL WIN: My federal court attorney has not promised that I will win my case. I recognize that I may lose my case. I am aware that a federal court may take several years to decide my case. This agreement supersedes and replaces any previous fee agreement I may have signed with any attorney for representation at Federal Court. It does not supersede or replace any fee agreement made for representation before the Social Security Administration. Dated: March 14, 2016 Signature: __________________________________ Claimant Name: Mr. Robert Olin Marshall Claimant Social Security Number: Dated: __________ Signature: ___________________________________ Howard D. Olinsky, Esq. Case 4:16-cv-00012-SLG Document 17-6 Filed 05/16/17 Page 3 of 3

Exhibit G Affirmation and Waiver of Direct Payment of EAJA Fees

Exhibit G UNITED STATES DISTRICT COURT DISTRICT OF ALASKA (FAIRBANKS DIVISION)--------------------------------------------------------------MR. ROBERT OLIN MARSHALL, AFFIRMATION AND Plaintiff, WAIVER OF DIRECT PAYMENT v. OF EAJA FEES CAROLYN W. COLVIN, Civil Action No.: _________________ COMMISSIONER OF SOCIAL SECURITY, Defendant.---------------------------------------------------------------Mr. Robert Olin Marshall, hereby states as follows: 1. I am the Plaintiff in the above-captioned matter. 2. That I have retained Olinsky Law Group as my attorney for the above-captioned matter. 3. At the time that this action was begun, my net worth was less than $2,000,000.00. 4. If my case is remanded by the Federal Court, either by stipulation or order, my attorney may file for attorney’s fees pursuant to the Equal Access to Justice Act (EAJA). I understand that the EAJA fees are paid by the Federal Government and do not come from any back benefits owed to me by the Social Security Administration. 5. I hereby agree to waive direct payment of the EAJA fees and assign said fees to be paid directly to my attorney. 6. I understand that my attorney may still petition the Administration for legal fees for his or her work before the Administration that will be paid from my back benefits. As the Plaintiff in this case, I hereby declare and affirm under penalty of perjury that the information above is true and correct. Executed on March 14, 2016. __________________________ Mr. Robert Olin Marshall Plaintiff Case 4:16-cv-00012-SLG Document 17-7 Filed 05/16/17 Page 2 of 2

Memorandum in Support

HOWARD D. OLINSKY, Esq. New York No. 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA ROBERT OLIN MARSHALL, Plaintiff, Civil Action No. 4:16-CV-00012-SLG-v-COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------Memorandum in Support of Plaintiff’s Petition for Counsel Fee Allowance Under Equal Access to Justice Act 1. This is a memorandum in support of a petition for an award of Counsel Fees under the Equal Access to Justice Act, 28 USCS § 2412 "EAJA." 2. An EAJA award is available to a "prevailing party" in a case against the Federal Government, including Social Security cases, in the following instances: (a) When and if the plaintiff actually "prevails"; (b) The Government’s position in litigation is "not substantially justified"; (c) Plaintiff is a party whose net assets are worth less than two million dollars; and Case 4:16-cv-00012-SLG Document 17-8 Filed 05/16/17 Page 1 of 3 (d) The case has concluded with a "final order" which is non-appealable, or will not be appealed. 3. Addressing these elements in reverse order, it is clear that the Plaintiff has met the burden necessary to receive EAJA fees. (a) Plaintiff’s net worth did not exceed $2,000,000.00 when this action was filed. (b) After service of the summons and complaint and submission of a brief by the both parties, District Judge Hon. Sharon L. Gleason signed an Order on March 31, 2017 remanding this matter to the Commissioner for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g). (c) Judgment was entered on March 31, 2017. The Judgment has not been appealed. (d) Plaintiff has prevailed because the District Court remanded the case under sentence four of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292 (U.S. 1993) 4. The commissioner was not substantially justified. As the U. S. Supreme Court has held, "the required'not substantially justified’ allegation imposes no proof burden on the fee applicant. It is, as its text conveys, nothing more than an allegation or pleading requirement. The burden of establishing'that the position of the United States was substantially justified’ … must be shouldered by the Government." Scarborough v. Principi, 541 U. S. 401, 414 (2004). While the fee applicant such as Plaintiff is required to "show" three of the four elements—prevailing party status, financial eligibility, and amount sought—Plaintiff need only "to allege" that the position of the government is not substantially justified. Id. WHEREFORE, because all four elements of an allowable application for EAJA fees have been proven or alleged, petitioner humbly prays that the Court issue an order: Case 4:16-cv-00012-SLG Document 17-8 Filed 05/16/17 Page 2 of 3 1. Awarding an Equal Access to Justice Act Counsel Fee for $5,791.14; and 2. If the Plaintiff has no debt registered with the Department of Treasury subject to offset that the fees be made payable to the attorney; and 3. Awarding Expenses in the amount of $17.34; and 4. Awarding Costs in the amount of $400.00. I declare under the penalty of perjury that the foregoing is true and correct. Executed this May 16, 2017 Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky New York Bar # 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Email: fedctgroup@windisability.com To: Leisa A. Wolf, Esq. Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3621 Fax: (206) 615-2531 Email: leisa.wolf@ssa.gov Case 4:16-cv-00012-SLG Document 17-8 Filed 05/16/17 Page 3 of 3

Certificate of Service

HOWARD D. OLINSKY, Esq. New York No. 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedct@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA ROBERT OLIN MARSHALL, Plaintiff, Civil Action No. 4:16-CV-00012-SLG-v-COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------CERTIFICATE OF SERVICE I certify that I have electronically moved for EAJA fees with the Clerk of the District Court using the CM/ECF system, which sent notification of such filing to: To: Leisa A. Wolf, Esq. Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3621 Fax: (206) 615-2531 Email: leisa.wolf@ssa.gov May 16, 2017/s/Howard D. Olinsky Howard D. Olinsky, Esq. Case 4:16-cv-00012-SLG Document 17-9 Filed 05/16/17 Page 1 of 1

RESPONSE in Opposition re [16] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Nancy A. Berryhill.

1 BRYAN SCHRODER 2 United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 LEISA A. WOLF 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) 615-3621 Fax: (206) 615-2531 11 leisa.wolf@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 ROBERT MARSHALL, Case No. 4:16-cv-00012-SLG 16 Plaintiff, 17 vs. DEFENDANT’S RESPONSE TO 18 PLAINTIFF’S MOTION FOR ATTORNEY NANCY A. BERRYHILL, FEES 19 Acting Commissioner of Social Security, 20 Defendant. INTRODUCTION 21 Defendant Acting Commissioner of Social Security opposes Plaintiff’s Motion for 22 Attorney Fees (Docket # 17). The underlying case involves Plaintiff’s request for judicial review 23 of Defendant’s decision finding him not disabled. Plaintiff raised 4 issues, and Plaintiff’s first 24 Page 1 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY FEES-[4:16-cv-00012-SLG] Case 4:16-cv-00012-SLG Document 18 Filed 05/30/17 Page 1 of 7 1 issue included 4 sub-issues, as Plaintiff argued that the Administrative Law Judge erred in 2 evaluating or failing to evaluate the opinions of 4 medical opinions (Docket # 10). The Court 3 reversed Defendant’s decision and remanded the matter for the ALJ to address the medical 4 opinions because the ALJ "failed to provide legally sufficient reasons for rejecting certain 5 medical opinions," (Docket # 12 at 27). The Court rejected Plaintiff’s request for Court-ordered 6 payment of benefits and did not find error with the other issues except that the ALJ should 7 address them on remand (Docket # 12). 8 Plaintiff’s claim for attorney fees is based on the Equal Access to Justice Act (EAJA), 28 9 U.S.C. § 2412 (Docket # 17). Defendant opposes Plaintiff’s request for award of attorney fees 10 under the EAJA because the government’s position was "substantially justified," and because the 11 amount of the request is unreasonably large. 28 U.S.C. § 2412(d)(1)(A). Defendant requests the 12 Court deny Plaintiff’s request for award of attorney fees. In the alternative, Defendant requests 13 that the Court award attorney fees in a reasonable amount less than the amount Plaintiff requests. 14 ARGUMENT 15 I. Plaintiff is not entitled to attorney fees under the EAJA because Defendant’s position was 16 substantially justified. 17 A prevailing party is not entitled to fees if the Court finds that the United States’s position 18 was "substantially justified." 28 U.S.C. § 2412(d)(1)(A). A substantially justified position is one 19 that "a reasonable person could think is correct, that is, if it has a reasonable basis in law and 20 fact." Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988). The position does not need to be 21 "justified to a high degree." Id. at 565. The fact that Plaintiff prevailed in court "does not raise a 22 presumption that [the government’s] position was not substantially justified." Kali v. Bowen, 854 23 F.2d 329, 334 (9th Cir. 1988). As explained below, Defendant’s decision and litigation positions 24 Page 2 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY FEES-[4:16-cv-00012-SLG] Case 4:16-cv-00012-SLG Document 18 Filed 05/30/17 Page 2 of 7 1 were substantially justified. Therefore, Plaintiff is not entitled to an award under the EAJA. 20 2 C.F.R. § 2412(d)(1)(A). 3 The issue is whether Defendant was substantially justified in defending the error found by 4 the Court. Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008). The ALJ’s discussion of the 5 medical opinion evidence had a reasonable basis in law and fact and was substantially justified. 6 Where, as here, the ALJ relies on physicians’ opinions to assess the claimant’s abilities, the 7 decision does not result from error or lack support of substantial evidence when the ALJ 8 disregards a doctor’s opinion that does not establish that the claimant would be unable to work for 9 the requisite 12-month period required by statute. Quang Van Han v. Bowen, 882 F.2d 1453, 10 1458 (9th Cir. 1989). The ALJ noted that Dr. Vermillion indicated at several points during 11 treatment that Plaintiff was unable to work and experienced significant limitations (Tr. 337, 340, 12 342, 345). The ALJ considered that, however, these limitations were "clearly temporary" (Tr. 20), 13 thus the ALJ did not give them weight in terms of Plaintiff’s residual functional capacity. In 14 September 2011, Dr. Vermillion indicated that Plaintiff was released to work with the following 15 restrictions: sitting as tolerated, 20-40 minutes with short break; standing as tolerated, 20-40 16 minutes with break; walking as tolerated on level surfaces; lifting 50 pounds intermittently; 17 climbing stairs as tolerated; kneeling as tolerated; climbing short ladders as tolerated; and no 18 squatting, jumping or running (Tr. 334). Like Dr. Szeto’s opinion at issue in Quang Van Han, Dr. 19 Vermillioin’s opinion does not establish that Plaintiff would be disabled for the requisite period. 20 With respect to the June 2014 statement from Plaintiff’s orthopedist, Richard Cobden, 21 M.D., who filled out an "Attending Physician’s Statement" in which he indicated that Plaintiff 22 was "totally and permanently" disabled from performing his past work or any other occupation 23 and that Plaintiff’s disability began November 26, 2009 (Tr. 675). However, Dr. Cobden 24 Page 3 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY FEES-[4:16-cv-00012-SLG] Case 4:16-cv-00012-SLG Document 18 Filed 05/30/17 Page 3 of 7 1 admitted that he did not begin treating Plaintiff until nearly two years after his alleged disability 2 onset date and admitted that he sees him only annually (Tr. 675). Defendant’s position that Dr. 3 Cobden’s opinion that Plaintiff was unable to work is not entitled to special significance has 4 reasonable support in Defendant’s regulations. 20 C.F.R. §§ 404.1527(d)(1), (3), 416.927(d)(1), 5 (3).1 Even though the Court ruled against Defendant, the ALJ’s discussion of the medical 6 evidence and the defense of the omission were substantially justified. 7 II. In the alternative, the amount of Plaintiff’s attorney fee request is unreasonably large. 8 Plaintiff’s attorney fee request of $5,791.14, based on 34.0 hours expended by Plaintiff’s 9 attorney and paralegal, is unreasonably large. The Court has discretion to determine whether the 10 fees requested are reasonable. Hensley v. Eckerhart, 461 U.S. 424, 436-437 (1983). The Court 11 may identify specific hours that should be eliminated, or simply reduce the award. Id. In the 12 Ninth Circuit, it is an abuse of discretion for a district court to impose a de facto policy limiting 13 plaintiffs in Social Security cases to 20 to 40 hours of attorney time. Costa v. Comm’r of Soc. 14 Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012). However, in determining a reasonable fee 15 award in a social security case, district courts may consider that 20-40 hours is the range most 16 17 1 Opinions on some issues, such as the examples that follow, are not medical 18 opinions,... but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case; i.e., that 19 would direct the determination or decision of disability. (1) Opinions that you are disabled. A statement by a medical source that you are 20 "disabled" or "unable to work" does not mean that we will determine that you are disabled. 21 (3) We will not give any special significance to the source of an opinion on issues reserved to the Commissioner described in paragraphs (d)(1) and (d)(2) of this 22 section. 23 20 C.F.R. §§ 404.1527(d)(1), (3), 416.927(d)(1), (3). 24 Page 4 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY FEES-[4:16-cv-00012-SLG] Case 4:16-cv-00012-SLG Document 18 Filed 05/30/17 Page 4 of 7 1 often requested and granted in social security cases. Id. And a district court does not abuse its 2 discretion when it reduces the requested amount by 10 percent without explanation, or when it 3 explains the basis for a greater reduction. Id. Defendant maintains that reduction is warranted, 4 because considering the size of the transcript, the lack of complexity of the issues, and Plaintiff’s 5 limited success. 6 Plaintiff devoted roughly 14-15 pages of briefing on his unsuccessful arguments that 7 substantial evidence does not support the lay witness, residual functional capacity assessment and 8 vocational hypothetical, and that the ALJ failed to provide sufficient reasons with sufficient 9 support for finding Plaintiff’s symptom testimony not entirely credible (Docket # 10 at 17-22). 10 This case involved issues commonly raised in social security disability appeals: whether 11 the ALJ erred in evaluating the opinions of medical sources and testimony, and whether 12 substantial evidence supports the residual functional capacity assessment and vocational expert 13 testimony. The administrative record is 771 pages, not small, but not unusually large, either. 14 Plaintiff raised 4 issues and prevailed on 1 issue. He received less than complete relief by 15 winning remand for further proceedings, rather than the award of benefits he requested. The 16 reduced number of hours requested, 34.0, is high considering that only approximately 7 pages out 17 of 22 pages of briefing are devoted to background matters or the winning issue; that the case is 18 not unusually complex or large, compared to other social security appeals; and that Plaintiff did 19 not receive full relief. Defendant suggests that a 20% reduction in the hours expended on the 20 briefing in this case would more than reasonably compensate counsel. 21 If the Court does not find Defendant’s position substantially justified and deny fees 22 outright, the Court should award fees based on a 20% reduction of these hours, that is, 20.64 for 23 attorney hours and 8.2 for paralegal hours, as requested. At $192.68 per hour for attorney time 24 Page 5 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY FEES-[4:16-cv-00012-SLG] Case 4:16-cv-00012-SLG Document 18 Filed 05/30/17 Page 5 of 7 1 and $100.00 per hour for paralegal time, the fee award would be $4,796.92, still toward the higher 2 end of amounts commonly requested and awarded by district courts in Social Security appeals. 3 CONCLUSION 4 Based on the foregoing, the Court should find Defendant’s position substantially justified 5 and deny Plaintiff’s Motion for Attorney Fees (Docket # 17) or in the alternative award an 6 unreasonable amount of attorney fees of no more than $4,796.92. 7 DATED this 30th day of May 2017. 8 Respectfully submitted, 9 BRYAN SCHRODER 10 United States Attorney 11 RICHARD L. POMEROY Assistant United States Attorney 12 MATHEW W. PILE 13 Acting Regional Chief Counsel, Seattle, Region X 14 s/Leisa A. Wolf LEISA A. WOLF 15 Special Assistant United States Attorney Office of the General Counsel 16 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 17 Seattle, WA 98104-7075 Telephone: (206) 615-3621 18 leisa.wolf@ssa.gov 19 20 21 22 23 24 Page 6 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY FEES-[4:16-cv-00012-SLG] Case 4:16-cv-00012-SLG Document 18 Filed 05/30/17 Page 6 of 7 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Defendant’s Response to Plaintiff’s Motion for 3 Attorney Fees was filed with the Clerk of the Court on May 30, 2017, using the CM/ECF system, 4 which will send notification of such filing to the following: Howard Olinsky. 5 6 s/Leisa A. Wolf LEISA A. WOLF 7 Special Assistant U.S. Attorney Office of the General Counsel 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 7 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY FEES-[4:16-cv-00012-SLG] Case 4:16-cv-00012-SLG Document 18 Filed 05/30/17 Page 7 of 7

ORDER: granting Plaintiff's Motion for Attorney Fees [16]. Signed by Judge Sharon L. Gleason on 06/22/2017. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA ROBERT OLIN MARSHALL, Plaintiff, Civil Action No. 4:16-cv-00012-SLG-v-COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------Order Awarding Attorney’s Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) Before the Court at Docket 16 is the Motion of Plaintiff, Robert Olin Marshall, for an award of attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Defendant filed a response in opposition to the motion at Docket 18. Based on the parties’ filings as well as the analysis set forth in the Court’s Decision and Order at Docket 12, the Court finds that the Defendant’s position was not "substantially justified." Accordingly, an award of attorney’s fees is warranted. The Court also finds that the amount of fees sought is not unreasonably large. The Court also recognizes the Plaintiff’s waiver of direct payment and assignment of EAJA to his counsel. Therefore, IT IS HEREBY ORDERED that attorney fees, expenses, and costs in the total amount of Six Thousand Two Hundred Eight Dollars and Forty-Eight Cents ($6,208.48) pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) are awarded to Plaintiff. Astrue v. Ratliff, 130 S.Ct. 2521 (2010). The Court hereby awards EAJA fees, broken down as follows: Case 4:16-cv-00012-SLG Document 19 Filed 06/22/17 Page 1 of 2 1. Plaintiff is awarded $5,791.14 for paralegal and attorney’s fees under 28 U.S.C. § 2412(d); 2. Plaintiff is awarded $17.34 in expenses for Certified Mail for service of Summons and Complaint. 3. Plaintiff is awarded $400.00 in costs for the Filing Fee to commence this civil action. If the U.S. Department of the Treasury determines that Plaintiff’s EAJA fees, expenses, and costs are not subject to offset allowed under the Department of the Treasury’s Offset Program (TOPS), then the check for EAJA fees, expenses, and costs shall be made payable to Plaintiff’s attorney, Howard D. Olinsky. Whether the check is made payable to Plaintiff or to Howard D. Olinsky, the check shall be mailed to Howard D. Olinsky at the following address: 300 South State Street Suite 420 Syracuse, NY 13202 So ordered. DATED this 22nd day of June, 2017, in Anchorage, Alaska./s/Sharon L. Gleason UNITED STATES DISTRICT JUDGE 4:16-cv-00012-SLG, Marshall v. Berryhill Order re Motion for Attorney’s Fees Page 2 of 2 Case 4:16-cv-00012-SLG Document 19 Filed 06/22/17 Page 2 of 2

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Description
1
03/25/2016
COMPLAINT against Carolyn W. Colvin (Filing fee $400/Receipt #FBK001251), filed by Robert Olin Marshall.
1
A
1 Attachment
2
03/25/2016
Civil Cover Sheet
3
03/25/2016
Unissued summons re Defendant US Attorney
1
Unissued Summons re Defendant US Attorney General
2
Unissued Summons re Defendant Carolyn W. Colvin
2 Attachments
03/28/2016
Summons Issued as to Carolyn W. Colvin, U.S. Attorney and U.S. Attorney General (Text entry; no document attached.)
4
04/12/2016
NOTICE of Appearance by Gary M. Guarino on behalf of Carolyn W. Colvin
5
04/14/2016
NOTICE of Appearance by Leisa A. Wolf on behalf of Carolyn W. Colvin
6
04/14/2016
SOCIAL SECURITY SCHEDULING ORDER: admin rec due w/In 60 days of I/a by def; plf's opening brief due w/in 30 days after filing of agency rec; def's answering brief due w/in 30 days of svc of plf's opening brief; reply may be filed w/in 14 days after svc of def's brief. If def files mtn to remand plf respond w/in 14 days. Signed by Judge Sharon L. Gleason on 04/14/2016. Modified on 8/11/2016 to create relationship to document #10.
04/14/2016
Docket Annotation: For the purpose of tracking the briefing as ordered at docket 6, when filing the Opening Brief the attorney shall file the document using the event Motion Miscellaneous Relief and text in the relief being sought. Responsive filings should be filed using the event Response in Opposition to Motion or Response to Motion (Non-Opposition). The reply, if any, shall be filed using the event Reply to Response to Motion. (Text entry; no document attached.)
7
04/27/2016
SUMMONS Returned Executed by Robert Olin Marshall. Carolyn W. Colvin served on 4/11/2016, answer due 6/10/2016.
8
06/08/2016
ANSWER to 1 Complaint by Carolyn W. Colvin.
9
06/08/2016
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
9 Attachments
10
07/06/2016
MOTION remand to agency re 1 Complaint Opening Brief Soc Sec appeal by Robert Olin Marshall.
11
08/05/2016
RESPONSE in Opposition re 10 MOTION remand to agency re 1 Complaint Opening Brief Soc Sec appeal filed by Carolyn W. Colvin.
02/10/2017
Docket Annotation: Nancy A. Berryhill; Acting Commissioner of Social Security, represented by Gary A. Guarino & Leisa A. Wolf substituted for Carolyn W. Colvin (Commissioner of Social Security) pursuant to FRCvP 25(d)(1). (Text entry; no document attached.)
12
03/31/2017
DECISION AND ORDER: granting in part Docket 1, the Commissioner's final decision is VACATED, and the case is REMANDED to the SSA for further proceedings (see order for full details). Signed by Judge Sharon L. Gleason on 03/31/2017. (AEM, CHAMBERS STAFF)
13
03/31/2017
JUDGMENT that matter remanded to SSA for further proceedings. Signed by Judge Sharon L. Gleason on 3/31/17. (Additional attachment(s) added on 6/29/2017: # (1) Judgment w/atty fees, costs, expenses added. NEF Regenerated.)
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--2318820.) by Robert Olin Marshall.
1
Certificate of Good Standing
1 Attachment
15
04/21/2017
CLERK'S NOTICE re 14 Application to Appear Pro Hac Vice. The Application to Appear Pro Hac Vice by Howard D. Olinsky, at docket 14, is authorized under D.Ak. LR 83.1(d).
16
05/16/2017
First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Robert Olin Marshall.
1
Proposed Order
1 Attachment
17
05/16/2017
DECLARATION of Howard D. Olinsky, Esq. re [16] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Robert Olin Marshall.
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Exhibit A All Professional Time
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Exhibit B Attorney Time
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Exhibit C Paralegal Time
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Exhibit D Expenses
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Exhibit E Costs
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Exhibit F Fee Agreement
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Exhibit G Affirmation and Waiver of Direct Payment of EAJA Fees
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Memorandum in Support
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Certificate of Service
9 Attachments
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05/30/2017
RESPONSE in Opposition re [16] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Nancy A. Berryhill.
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06/22/2017
ORDER: granting Plaintiff's Motion for Attorney Fees [16]. Signed by Judge Sharon L. Gleason on 06/22/2017. (AEM, CHAMBERS STAFF)
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