McAlees v. Colvin
Court Docket Sheet

District of Alaska

3:2016-cv-00245 (akd)

RESPONSE in Opposition re [12] MOTION for Remand re [8] Order, filed by Carolyn W. Colvin.

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 JUSTIN L. MARTIN Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 791 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone(206) 615-3735 Fax(206) 615-2531 11 justin.l.martin@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 MANDY MCALEES, Case No. 3:16-cv-00245-TMB 16 Plaintiff, 17 vs. 18 NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. 21 STANDARD OF REVIEW 22 Plaintiff Mandy McAlees (McAlees) brought this action pursuant to 42 U.S.C. § 405(g) 23 (2012), seeking judicial review of the final administrative decision of the Commissioner of Social 24 Security (the Commissioner) denying her application for disability insurance benefits under Title Page 1-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 15 Filed 04/19/17 Page 1 of 15 1 II of the Social Security Act. This Court affirms the Commissioner’s final decision if she 2 supported it with substantial evidence and applied correct legal standards. Tommasetti v. Astrue, 3 533 F.3d 1035, 1040 (9th Cir. 2008). "Substantial evidence means such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion." Molina v. Astrue, 674 F.3d 5 1104, 1110 (9th Cir. 2012) (internal quotation marks omitted). This is a "highly deferential 6 standard of review." Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). 7 This Court must uphold the Commissioner’s denial of benefits if the evidence is 8 susceptible to more than one rational interpretation, one of which supports the ALJ’s decision. 9 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). A court may not reverse the 10 Commissioner’s decision for an error that is harmless. Id. An error is harmless if inconsequential 11 to the determination that a claimant is not disabled, based on the whole record. Molina, 674 F.3d 12 at 1115. McAlees has the burden to show that an error by the Commissioner is harmful. McLeod 13 v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (citing Shinseki v. Sanders, 556 U.S. 396, 409 14 (2009)). As the party claiming error, McAlees has the burden "to demonstrate not only the error, 15 but also that it affected her'substantial rights,’ which is to say, not merely her procedural rights." 16 Ludwig v. Astrue, 681 F.3d 1047 (9th Cir. 2012). Finally, "[a] claimant is not entitled to benefits 17 under the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ’s 18 errors may be." Strauss v. Comm’r, 635 F.3d 1135, 1138 (9th Cir. 2011). 19 STATEMENT OF THE CASE 20 The Commissioner stipulates to McAlees’s description of the procedural history of this 21 case. (Plaintiff’s Opening Brief (Pl.’s Br.) at 1-2). 22 23 24 Page 2-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 15 Filed 04/19/17 Page 2 of 15 1 ISSUES PRESENTED 2 1. Whether the ALJ properly evaluated the medical opinion evidence from Marlena 3 Purchiaroni, D.O.; and in light of this alleged error, 4 2. Whether the ALJ properly assessed McAlees’s residual functional capacity (RFC). 5 STATEMENT OF THE FACTS 6 Born in 1978, McAlees was 35 years old on her alleged disability onset date and 37 years 7 old on the date of the ALJ’s decision (Tr. 149). She received a high school diploma and worked 8 in the past as a tax preparer, accounting supervisor, accounts receivable clerk, and cashier (Tr. 25, 9 170-71, 177, 232). The ALJ has summarized the medical and testimonial evidence (Tr. 20-25). 10 The Commissioner will discuss the relevant evidence in connection with the arguments. 11 BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS 12 The burden is on the claimant to prove that she is disabled within the meaning of the 13 Social Security Act. Valentine, 574 F.3d at 689, Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 14 1999). Disability is the "inability to engage in any substantial gainful activity by reason of any 15 medically determinable physical or mental impairment which can be expected to result in death or 16 which has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 17 42 U.S.C. § 1382(a)(3)(A). A claimant is disabled only if her impairments are of such severity 18 that he is not only unable to do her previous work but cannot, considering her age, education, and 19 work experience, engage in any other substantial gainful activity existing in the national 20 economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); Tackett, 180 F.3d at 1098. 21 The ALJ applies a five-step sequential evaluation process for determining whether a 22 claimant is disabled. 20 C.F.R. § 404.1520. The claimant bears the burden of proof at steps one 23 through four. Burch, 400 F.3d 679. At step five, the burden of production shifts to the 24 Page 3-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 15 Filed 04/19/17 Page 3 of 15 1 Commissioner to identify jobs existing in significant numbers in the national economy that the 2 claimant can perform given his residual functional capacity, age, education, and work experience. 3 Id.; see also Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); 20 C.F.R. § 4 404.1560(c)(2). The Commissioner can meet this burden "(a) by the testimony of a vocational 5 expert, or (b) by reference to the Medical-Vocational Guidelines [the Guidelines] at 20 C.F.R. pt. 6 404, subpt. P, app. 2." Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 7 At step one, the ALJ found McAlees had not engaged in substantial gainful activity since 8 August 18, 2013, the alleged onset date. (Tr. 20, Finding 2). 20 C.F.R. § 404.1520(b). At step 9 two, the ALJ found McAlees had the following severe impairments: morbid obesity, diabetes 10 mellitus, lymphedema cellulitis, and asthma (Tr. 20, Finding 3). 20 C.F.R. § 404.1520(c). At 11 step three, the ALJ found McAlees’s impairments did not meet or equal the requirements of a 12 listed impairment (Tr. 20-21, Finding 4). 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d). 13 The ALJ determined McAlees had a residual functional capacity, 20 C.F.R. §404.1520(e), 14 404.1545, to perform light work but with the following non-exertional, postural, and 15 environmental limitations: she was limited to 16  occasional, but not constant, operation of foot controls with her lower 17 extremities; 18  frequent balancing with hand held assistive device; 19  occasional climbing of ramps and stairs; 20  occasional kneeling and crawling; 21  no crouching or climbing ladders, ropes, or scaffolds; 22  no exposure to moving and hazardous machinery and unprotected heights; 23 24 Page 4-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 15 Filed 04/19/17 Page 4 of 15 1  avoiding moderate exposure to non-weather related extreme cold and heat; 2 and 3  avoiding concentrated exposure to airborne irritants such as fumes and dust 4 (Tr. 21, Finding 5). The ALJ also found that McAlees required a sit/stand option allowing 5 her to alternate sitting or standing positions throughout the day (Tr. 21, Finding 5). 6 At step four, the ALJ found McAlees was capable of performing her past relevant work as 7 a tax preparer, accounting supervisor, and accounts receivable clerk (Tr. 25, Finding 6). 20 8 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f). Because McAlees’s past relevant work did not require 9 performance of work-related activities that exceeded the RFC, the ALJ determined that McAlees 10 has not been under a disability, as defined by the Social Security Act, from August 18, 2013 11 through June 23, 2015, the date of his decision (Tr. 25-26, Finding 7). 12 ARGUMENT 13 I. The ALJ properly evaluated the medical opinion evidence. 14 McAlees argues that the ALJ should have weighed the medical opinions differently. Pl.’s 15 Br. at 11-17. Specifically, McAlees argues that the ALJ improperly evaluated the medical 16 opinion of Dr. Purchiaroni. Pl.’s Br. at 11-17. But, the opinion of Dr. Purchiaroni was 17 contradicted by the opinion of Nathaniel Arcega, M.D., a State agency reviewing physician who 18 opined that McAlees could perform light exertional work with some postural limitations (Tr. 72-19 77). When, as here, the opinion of a treating physician is contradicted, the ALJ is responsible for 20 resolving conflicts among the physicians’ opinions. See Carmickle v. Comm’r, Soc. Sec. Admin, 21 533 F.3d 1155, 1164 (9th Cir. 2008). In doing so, an ALJ may reject a contradicted treating 22 doctor’s opinion by providing "specific and legitimate" reasons, supported by substantial 23 evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Specific, legitimate reasons 24 Page 5-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 15 Filed 04/19/17 Page 5 of 15 1 for rejecting a physician’s opinion may include its reliance on a claimant’s discredited subjective 2 complaints, inconsistency with medical records, inconsistency with a claimant’s testimony, and 3 inconsistency with a claimant’s daily activities. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th 4 Cir. 2008). An ALJ may also discount a medical source’s opinion that is inconsistent with the 5 source’s other findings. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). As discussed 6 below, the ALJ properly evaluated the medical opinion evidence and McAlees’s argument to the 7 contrary lacks merit. 8 A. Marlena Purchiaroni, D.O. – Treating Physician 9 In April 2015, Dr. Purchiaroni completed a questionnaire form prepared by McAlees’s 10 attorney regarding McAlees’s ability to do physical work-related activities (Tr. 580-85). Dr. 11 Purchiaroni noted that McAlees had severe hereditary lymphedema, hypertension, diabetes 12 mellitus, high cholesterol, asthma, and morbid obesity (Tr. 580). She then noted that these 13 conditions caused severe lower extremity pain, neuropathic pain, and lower extremity numbness 14 (Tr. 580). Dr. Purchiaroni opined that McAlees was on "bedrest" whenever not exercising (Tr. 15 581). She further opined that McAlees could: 16  sit for 30 minutes at a time for a total of 2 hours in an 8-hour workday; 17  stand for 3 minutes at a time for a total of 15 minutes in an 8-hour workday; 18  walk up to 500 feet continuously or 3 minutes for a total of 15 minutes in an 8-19 hour workday; and 20  lift up to 25 pounds and carry 20 pounds occasionally 21 (Tr. 582). Next, Dr. Purchiaroni opined that McAlees had no difficulty grasping, pushing or 22 pulling arm controls, and could perform fine manipulation (Tr. 583). She then opined that 23 McAlees could occasionally bend and reach, but could never squat, climb, or use her legs or feet 24 Page 6-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 15 Filed 04/19/17 Page 6 of 15 1 for repetitive movements such as pushing and pulling of leg or foot controls (Tr. 583). Dr. 2 Purchiaroni also found that McAlees was not physically capable of traveling by bus or subway 3 (Tr. 584). Lastly, she noted that McAlees should avoid several environmental hazards, including 4 unprotected heights; being around moving machinery; exposure to marked changes in 5 temperature and humidity; driving a motor vehicle; exposure to dust, fumes, gases; and stress (Tr. 6 584). 7 The ALJ considered Dr. Purchiaroni’s opinion and listed several reasons for giving it 8 "little" weight (Tr. 25). First, he noted that Dr. Purchiaroni’s opinion was not supported by 9 contemporaneous examination findings (Tr. 25). The lack of supportive examination findings 10 was a permissible factor for the ALJ to consider. 20 C.F.R. § 404.1527(c)(3). Indeed, ALJs are 11 instructed to weigh opinions, in part, according to the quantity and quality of the medical 12 evidence supporting the opinion. Id. 13 Here, McAlees acknowledges that Dr. Purchiaroni’s treatment notes from 2014 "do not 14 contain a clear recitation of detailed examination findings as might be found in other sources’ 15 treatment notes, [but] it is apparent from her comments in her treatment notes that she did conduct 16 physical examinations..." Pl.’s Br. at 14. This argument misses the mark as the ALJ did not 17 discount Dr. Purchiaroni’s opinion because he was unsure whether Dr. Purchiaroni ever examined 18 McAlees; rather, he discounted Dr. Purchiaroni’s opinion because she failed to list any 19 contemporaneous examinations findings to support her opinion (Tr. 25). In short, the ALJ 20 reasonably discounted Dr. Purchiaroni’s opinion when he found it lacked adequate support from 21 contemporaneous examination findings (Tr. 25). See 20 C.F.R. § 404.1527(c)(3). 22 Second, the ALJ found that Dr. Purchiaroni’s opinion was not consistent with the 23 treatment notes that showed McAlees’s condition improved with treatment (Tr. 25). See Morgan 24 Page 7-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 15 Filed 04/19/17 Page 7 of 15 1 v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999) (physician’s opinion of the 2 level of impairment may be rejected because it is unreasonable in light of other evidence in the 3 record). For instance, physical therapy treatment notes repeatedly showed that the swelling in 4 McAlees’s legs was under control and that she was increasing her activity level (Tr. 23-25, 360, 5 389, 408, 483, 488, 490, 511, 417, 511, 552, 556, 558, 563). See Warre ex rel. E.T. IV v. Comm’r 6 of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (holding impairments that can be 7 controlled with medication are not considered disabling). Subsequent treatment notes dated 8 January 2015 further revealed that aquatics were helping control the lymphedema and make it 9 manageable (Tr. 25, 517). See generally Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 10 692-93 (9th Cir. 2009) (upholding ALJ’s rejection of treating psychologist’s contradicted opinion 11 because it conflicted with treatment notes showing claimant’s improved functioning). 12 McAlees challenges this factor, essentially arguing that her symptoms fluctuated and that 13 the physical therapy treatment notes included negative findings. Pl.’s Br. at 14-15. While the 14 physical therapy notes contained a combination of negative and positive findings, "the ALJ is the 15 final arbiter with respect to resolving ambiguities in the medical evidence" Tommasetti v. Astrue, 16 533 F.3d 1035, 1041 (9th Cir. 2008), and he reasonably determined that the evidence of 17 improvement evidence did not substantiate the extreme limitations Dr. Purchiaroni assessed (Tr. 18 25). Burch, 400 F.3d at 679 ("Where evidence is susceptible to more than one rational 19 interpretation, it is the [Commissioner’s] conclusion that must be upheld.") (citations omitted)). 20 McAlees clearly prefers to weigh the evidence differently, but even if substantial evidence 21 supports her interpretation, this does not establish error. See Jamerson v. Chater, 112 F.3d 22 10064, 1067 (9th Cir. 1997) ("[T]he key question is not whether there is substantial evidence that 23 could support a finding of disability, but whether there is substantial evidence to support the 24 Page 8-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 15 Filed 04/19/17 Page 8 of 15 1 Commissioner’s actual finding that claimant is not disabled."). Accordingly, the ALJ did not err 2 in discounting Dr. Purchiaroni’s opinion because the credible evidence of record does not 3 establish that McAlees’s physical limitations were as significant as Dr. Purchiaroni opined. 4 Lastly, the ALJ observed that "[b]ariatric surgery was thought to be a very important 5 factor in improving [McAlees’s] lymphedema, yet she has not had the surgery even though it 6 appears she was approved for it (Tr. 25). Contrary to McAlees’s contention, an ALJ may 7 properly rely on an unexplained or inadequately explained failure to seek treatment or follow a 8 prescribed course of treatment when evaluating a disability claim, absent medical evidence that 9 the failure to seek or follow treatment was attributable to claimant’s mental impairment rather 10 than personal preference. Molina v. Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012). McAlees 11 points to no such evidence in this case. Instead, she explains that the eligibility process for 12 bariatric surgery is a "long process" and that there is no evidence in the record that she should 13 have received the surgery on a "quicker timeline." Pl.’s Br. at 17. Such an explanation is not 14 sufficient to undermine the ALJ’s evaluation of Dr. Purchiaroni’s opinion. However, even if the 15 Court finds that ALJ’s observation was not a legitimate reason for discounting Dr. Purchiaroni’s 16 opinion, McAlees’s argument should fail because, as discussed above, the ALJ properly listed 17 two other specific and legitimate reasons for discounting Dr. Purchiaroni’s opinion (Tr. 25). 18 Accordingly, the ALJ did not err in giving little weight to Dr. Purchiaroni’s opinion. See Molina, 19 674 F.3d at 1121 ("Even when an agency explains its decision with less than ideal clarity, [a 20 reviewing court] must uphold it if the agency’s path may be reasonably discerned." (internal 21 quotation marks omitted)). 22 23 24 Page 9-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 15 Filed 04/19/17 Page 9 of 15 1 B. Nathaniel Arcega, M.D. – State Agency Reviewing Physician 2 In April 2014, Dr. Arcega reviewed McAlees’s medical records and completed a physical 3 residual functional capacity assessment at the request of the State agency (Tr. 72-74). He opined 4 that McAlees could lift and carry 20 pounds occasionally and 10 pounds frequently; stand or walk 5 work about 2 hours in an 8-hour workday; sit for about 6 hours in an 8-hour workday; and push or 6 pull without limitation (Tr. 72-73). Dr. Arcega also opined that McAlees could occasionally 7 balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, but could never climb ladders, 8 ropes, or scaffolds (Tr. 74). The ALJ considered Dr. Arcega’s opinion, determined that it was 9 entitled to "some" weight, and incorporated some of his findings into the RFC finding (Tr. 21, 10 24). In doing so, he reasonably determined that the record evidence was consistent with both the 11 exertional limitations and some of the postural limitations Dr. Arcega assessed (Tr. 21, 24). 12 The sole basis of McAlees’s challenge to Dr. Arcega’s opinion is that she did not have the 13 opportunity to review medical records after April 2014, namely her physical therapy treatment 14 notes. Pl.’s Br. at 18-19. Clearly, Dr. Arcega could review only medical records in existence at 15 the time he completed his opinion. And, as discussed above, the ALJ reasonably determined that, 16 on balance, the physical therapy treatment notes showed that McAlees’s physical condition was 17 controlled with treatment (Tr. 23-25, 360, 389, 408, 483, 488, 490, 511, 417, 511, 552, 556, 558, 18 563). Because Dr. Arcega reviewed all of the available medical evidence and prepared a medical 19 opinion that was consistent with the evidence of record, the ALJ gave it appropriate weight (Tr. 20 24). See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) ("The opinions of non-treating 21 or non-examining physicians may also serve as substantial evidence when the opinions are 22 consistent with independent clinical findings or other evidence in the record."). 23 24 Page 10-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 15 Filed 04/19/17 Page 10 of 15 1 II. The ALJ properly assessed McAlees’s residual functional capacity. 2 McAlees argues that the ALJ erred in assessing her RFC because he failed to incorporate 3 the limitations described in Dr. Purchiaroni’s medical opinion. Pl.’s Br. at 17-18. To the degree 4 McAlees is merely reiterating her other assignments of error – namely the evaluation of Dr. 5 Purchiaroni’s medical opinion – the subsection above adequately address McAlees’s arguments. 6 See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-1176 (9th Cir. 2008) (upholding step five 7 finding where argument that hypothetical was incomplete "simply restate[d] her argument" about 8 deficiencies judging credibility and medical evidence for the RFC finding). 9 Moreover, McAlees’s argument lacks merit because the ALJ carefully considered all of 10 the evidence of record and appropriately included only limitations "based on medical assumptions 11 supported by substantial evidence in the record that reflect[ed] all the claimant’s limitations." 12 (Tr. 21). Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001); Stubbs-Danielson, 539 F.3d at 13 1175-76. More specifically, the ALJ accounted for McAlees’s credible physical impairments by 14 limiting her to a reduced range of light exertional work with several nonexertional, postural, and 15 environmental limitations (Tr. 22). He also accounted for McAlees’s need to alternate between 16 sitting and standing by including a sit/stand option (Tr. 21). (Tr. 22). Finally, the ALJ considered 17 some of the earlier dated evidence that McAlees should elevate her legs when not actively 18 engaged in exercise, specifically discussing such findings in his decision: 19  "... [Casey] Gokey[,M.D.] recommended she elevate her legs at all times..." 20  "[r]ecommendations included avoiding maintenance of lower extremities in a 21 gravity-dependent position for long periods of time... and elevating legs above 22 heart when not exercising 23 24 Page 11-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 15 Filed 04/19/17 Page 11 of 15 1 (Tr. 23). However, the ALJ further noted that Dr. Gokey subsequently altered her 2 recommendation, noting that McAlees should maintain bed rest "as often as her life allow[ed]" 3 (Tr. 23) (referencing Tr. 419). The ALJ interpreted this finding to mean that McAlees could 4 endure longer periods of time without needing to elevate her feet (Tr. 23). In making this finding, 5 the ALJ pointed to McAlees’s treatment notes, notably the record evidence that she was: 6 (1) participating in activities of daily living and more active in general, 7 (2) losing weight through diet and exercise, 8 (3) walking every day, 9 (4) improving her overall form and endurance with physical therapy, and 10 (5) managing the swelling with lymphatic drainage sessions and aquatic exercise 11 (Tr. 23, 359-60, 387, 389, 408, 488, 552). Such evidence supports the ALJ’s reasonable 12 conclusion that McAlees no longer required to elevate her legs to the extent previously indicated. 13 While McAlees clearly interprets the evidence differently, the ALJ reasonably concluded that the 14 medical evidence does not indicate McAlees needed to spend a substantial portion of her day 15 elevating her legs (Tr. 21-25). See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 16 (9th Cir. 2004) ("[I]f evidence exists to support more than one rational interpretation, [the court] 17 must defer to the Commissioner’s decision."). Aside from McAlees’s own discredited complaints 18 and the discredited medical opinion evidence, McAlees cannot point to any evidence that would 19 support greater limitations. In short, the ALJ reasonably weighed the medical evidence and the 20 RFC finding is properly supported. Therefore, McAlees’s argument lacks merit. 21 22 23 24 Page 12-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 15 Filed 04/19/17 Page 12 of 15 1 III. Although the proper remedy is affirmance of the Commissioner’s final decision, if this 2 Court finds harmful error, this Court should remand for further administrative proceedings. 3 Even if this Court finds the ALJ committed harmful error, the proper remedy is a remand 4 for further administrative proceedings. Ninth Circuit case law allows courts in some 5 circumstances to credit evidence as "true" and award benefits based on that evidence if it finds 6 that the agency did not properly evaluate that evidence. As a matter of record, the Commissioner 7 disagrees with the credit-as-true rule. See Vasquez v. Astrue, 572 F.3d 586, 601 (9th Cir. 2009) 8 (amended opinion) (O’Scannlain, J., dissenting). But, regardless of its validity, the Ninth Circuit 9 has clarified that this rule only justifies an award of benefits in narrow circumstances. 10 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (holding that the 11 "ordinary remand rule"––providing that remand for further proceedings is "the proper course, 12 except in rare circumstances," when the court does not affirm the agency’s decision––applies to 13 Social Security cases). Treichler clarifies that further administrative proceedings are generally 14 useful, and that courts should thus not award benefits, where the record has not been fully 15 developed or "there is a need to resolve conflicts and ambiguities." Id. at 1101. Further, a court 16 cannot award benefits if "the record as a whole creates serious doubt that a claimant is, in fact, 17 disabled." Garrison v.Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). 18 This is not a rare case in which the Court would be justified in awarding benefits. Even if 19 the Court finds error by the ALJ, the record contains evidentiary conflicts, including 20 inconsistencies between McAlees’s complaints and the (1) objective medical findings; (2) 21 improvement with treatment; (3) failure to follow through with treatment recommendations; and 22 (4) activities of daily living (Tr. 21-25). In addition, the ALJ cited a medical opinion supportive 23 of his conclusion that McAlees retained the ability to work in some capacity (Tr. 24). Such issues 24 Page 13-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 15 Filed 04/19/17 Page 13 of 15 1 leave uncertainty as to the proper outcome of the proceeding. Assuming harmful error, remand 2 for further proceedings is the only appropriate remedy as the ALJ would need to resolve conflicts 3 in the record. 4 CONCLUSION 5 Based on the foregoing, the Court should affirm the Commissioner’s final decision and 6 dismiss McAlees’s Complaint with prejudice. 7 DATED this 19th day of April 2017. 8 Respectfully submitted, 9 Bryan Schroder 10 Acting 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/Justin L. Martin JUSTIN L. MARTIN 15 Special Assistant United States Attorney Office of the General Counsel 16 Social Security Administration 791 Fifth Avenue, Suite 2900 M/S 221A 17 Seattle, WA 98104-7075 Telephone(206) 615-3735 18 Fax(206) 615-2531 justin.l.martin@ssa.gov 19 20 21 22 23 24 Page 14-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 15 Filed 04/19/17 Page 14 of 15 1 2 3 CERTIFICATE OF SERVICE 4 I hereby certify that the foregoing was filed with the Clerk of the Court on April 19, 2017, 5 using the CM/ECF system, which will send notification of such filing to the following: 6 Paul B. Eaglin, Esq.. 7 8 s/Timothy Shaw TIMOTHY SHAW 9 Paralegal Specialist Office of the General Counsel 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 15-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 15 Filed 04/19/17 Page 15 of 15

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--2318839.) by Mandy M.A. McAlees.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA MANDY M.A. MCALEES, Case No. 3:16-cv-00245-TMB 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 Mandy M.A. Mcalees, 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-00245-TMB Document 16 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-00245-TMB Document 16 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-00245-TMB Document 16 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-00245-TMB Document 16 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-00245-TMB Document 16-1 Filed 04/20/17 Page 1 of 1

ORDER granting [12] Motion for Reversal and Remand. Commissioner's determination is VACATED and this matter is REMANDED for further administrative proceedings. (See PDF for details). Signed by Judge Timothy M. Burgess on 6/26/17.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA MANDY MCALEES, Case No. 3:16-cv-00245-TMB Plaintiff, v. ORDER GRANTING CLAIMANT’S MOTION FOR REMAND NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. I. INTRODUCTION Claimant, Mandy McAlees, filed an application for Disability Insurance Benefits ("disability benefits") under Title II of the Social Security Act (the "Act"), alleging disability beginning August 18, 2013. 1 Ms. McAlees exhausted her administrative remedies and now seeks relief from this Court. 2 She argues that the determination by the Social Security Administration ("SSA") that she is not disabled, within the meaning of the Act, is not supported by substantial evidence and that the ALJ’s decision contains legal error. 3 Ms. McAlees seeks a reversal of the decision by the Commissioner of the SSA ("Commissioner") and a remand for calculation of benefits. 4 The Commissioner opposes Ms. McAlees’ motion. 5 Neither party 1 Transcript ("Tr.") 165, 18. 2 Tr. 1; Dkt. 1 at 2; Dkt. 10 at 2. 3 Dkt. 1 at 2; Dkt. 12 at 19. 4 Dkt. 1 at 2. Alternatively, Ms. McAlees seeks a de novo ALJ hearing and decision. Dkt. 12 at 19. 5 Dkt. 10; Dkt. 15. 1 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 1 of 27 requested oral argument and the Court determines that one is unnecessary. For the reasons set forth below, Ms. McAlees’ motion for reversal and remand at Docket 1 is GRANTED. The Commissioner’s decision is VACATED and this matter is REMANDED for further proceedings in accordance with this opinion. II. STANDARD OF REVIEW A decision by the Commissioner to deny disability benefits will not be overturned unless it is either not supported by substantial evidence or based upon legal error. 6 "Substantial evidence" has been defined by the Supreme Court as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 7 Such evidence must be "more than a mere scintilla," but also "less than a preponderance." 8 In making its determination, a court should consider the evidence in its entirety, weighing both the evidence that supports and that which detracts from the conclusion of the Administrative Law Judge ("ALJ"). 9 If the evidence is susceptible to more than one rational interpretation, the ALJ’s conclusion must be upheld. 10 Courts "review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely." 11 If an ALJ commits legal error, courts 6 Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)). 7 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. Nat’l Labor Relations Bd., 305 U.S. 197, 229 (1938)). 8 Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). 9 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 10 Gallant v. Heckler, 753 F.2d 1450, 1452–53 (9th Cir. 1984). 11 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 2 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 2 of 27 will uphold a decision if it is harmless. 12 An error is harmless if it is "inconsequential to the ultimate nondisability determination." 13 III. DETERMINING DISABILITY The Act provides for the payment of disability benefits to individuals who have contributed to the social security program and who suffer from a physical or mental disability. 14 Disability is defined in the Act as follows: [I]nability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.15 The Act further provides: An individual shall be determined to be under a disability only if his physical or mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. 16 12 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). 13 Id. (citation omitted). 14 42 U.S.C. § 423(a) (2012). 15 42 U.S.C. § 423(d)(1)(A) (2012). 16 42 U.S.C. § 423(d)(2)(A) (2012). 3 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 3 of 27 The Commissioner has established a five-step process for determining disability within the meaning of the Act. 17 A claimant bears the burden of proof at steps one through four in order to make a prima facie showing of disability. 18 If a claimant establishes a prima facie case, the burden of proof then shifts to the SSA at step five. 19 The Commissioner can meet this burden in two ways: "(a) by the testimony of a vocational expert, or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2." 20 The steps, and the ALJ’s findings in this case, are as follows: Step 1. Determine whether the claimant is involved in "substantial gainful activity."21 The ALJ concluded that Ms. McAlees has not engaged in substantial gainful activity since August 18, 2013. 22 Step 2. Determine whether the claimant has a medically severe impairment or combination of impairments. 23 A severe impairment significantly limits a claimant’s physical or mental ability to do basic work activities, and does not consider age, education, or work experience. The severe impairment or combination of impairments must satisfy the twelve-month 17 20 C.F.R. § 404.1520(a)(4) (2015). 18 Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014) (quoting Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007)); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 19 Treichler, 775 F.3d at 1096 n.1. 20 Tackett, 180 F.3d at 1099. 21 20 C.F.R. § 404.1520(a)(4)(i). 22 Tr. 20. 23 20 C.F.R. § 404.1520(a)(4)(ii). 4 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 4 of 27 duration requirement. The ALJ determined that Ms. McAlees has the following severe impairments: morbid obesity, diabetes mellitus, lymphedema cellulitis, and asthma. 24 Step 3. Determine whether the impairment is the equivalent of a number of listed impairments found in 20 C.F.R. pt. 404, subpt. P, app. 1 that are so severe as to preclude substantial gainful activity. 25 If the impairment is the equivalent of one of the listed impairments, and meets the duration requirement, the claimant is conclusively presumed to be disabled. If not, the evaluation goes on to the fourth step. The ALJ determined that Ms. McAlees does not meet one of the listed impairments. 26 Before proceeding to step four, a claimant’s residual functional capacity ("RFC") is assessed. 27 Once determined, the RFC is used at both step four and step five. An RFC assessment is a determination of what a claimant is able to do despite her physical, mental, or other limitations. In this case, the ALJ concluded that Ms. McAlees has the RFC to perform light work, as defined in 20 C.F.R. § 404.1567(b), 28 with the following limitations: occasional operation of foot controls with bilateral lower extremity as well as climbing ramps and stairs, kneeling and crawling; frequent balancing with hand-held assistive device; no crouching, climbing ladders, 24 Tr. 20. 25 20 C.F.R. § 404.1520(a)(4)(iii). 26 Tr. 20. 27 20 C.F.R. § 404.1545(a)(5) (2015). 28 Light work "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities"; it also incorporates sedentary work. 20 C.F.R. § 404.1567(b) (2015). 5 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 5 of 27 ropes, or scaffolds as well as avoiding moderate exposure to non-weather related extreme cold and heat, concentrated exposure to airborne irritants, and all exposure to moving and hazardous machinery and unprotected heights; and the ability to alternate between sitting and standing positions throughout the day. 29 Step 4. Determine whether the impairment prevents the claimant from performing work performed in the past. 30 At this point, the analysis considers the claimant’s RFC and past relevant work. If the claimant can still do his or her past relevant work, the claimant is deemed not to be disabled. Otherwise, the evaluation process moves to the fifth and final step. The ALJ found that Ms. McAlees is able to perform past relevant work including: tax preparer DOT. No. 219.362-31 070; accounting supervisor DOT. No. 160.167-058; and accounts-receivable clerk, DOT. No. 216.482-010. 32 29 Tr. 21. 30 20 C.F.R. § 404.1520(a)(4)(iv). 31 The Court notes that DOT. No. 160.167-058 is titled "Controller" or alternatively "Comptroller" and is considered a "professional and kindred" occupation; it is not an accounting supervisor. Dictionary of Occupational Titles website, http://www.occupationalinfo.org/16/160167058.html (last visited Apr. 17, 2017). "Accounting Clerks Supervisor" is listed under DOT. No. 216.132-010 sedentary, specific vocational preparation ("SVP") 7, and is categorized as clerical. The record does not establish exactly what work Ms. McAlees did as an "accounting supervisor" beyond the fact that it was for a law firm, involved collections, and she earned fourteen dollars per hour. It is unclear then whether her work is more accurately captured under DOT. No. 216.132-010. However, any error is likely harmless in this particular case because the VE testified that Ms. McAlees could perform work at sedentary, SVP 8. Since SVP 7 requires less training, SVP 8 likely incorporates SVP 7 work and is presumably less complicated based on a comparison of the descriptions of each. The Court does not know, however, if the skills are transferable. Nonetheless, this potential error likely does not have an impact on the overall disability determination since there were two other jobs indicated by the VE that Ms. McAlees could perform. 32 Tr. 25. All jobs are categorized as sedentary and each has a different SVP—tax preparer, SVP 4; accounting supervisor, SVP 8; and accounts receivable clerk, SVP 5. 6 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 6 of 27 Step 5. Determine whether the claimant is able to perform other work in the national economy in view of his or her age, education, and work experience, and in light of the RFC. 33 If so, the claimant is not disabled. If not, the claimant is considered disabled. The ALJ did not make a finding at step five because he found that Ms. Johnson could perform past relevant work. However, a vocational expert ("VE") testified that a person with an RFC as described above along with the characteristics of Ms. McAlees (i.e., her age, education, and work experience) could perform light work as a tax preparer, accounting supervisor, and accounts receivable clerk. 34 IV. BACKGROUND Ms. McAlees was born in 1978 in Alaska and spent the majority of her life there. 35 She obtained a high school diploma in 1996. 36 She lives with her teenage daughter. 37 Ms. McAlees’ sister-in-law and brother help her with some of her daily activities of living including grocery shopping, cleaning the apartment, and mowing the lawn, 38 while her daughter does the laundry and tends to their pets. 39 Ms. McAlees can self-care and she can cook dinner, wash dishes, and fold laundry all while sitting in a chair. 40 She shops for groceries, school supplies, clothing, and 33 20 C.F.R. § 404.1520(a)(4)(v). 34 Tr. 56–58. 35 Tr. 436. 36 Tr. 170, 54. 37 Tr. 52. 38 Tr. 53. 39 Tr. 53, 188. 40 Tr. 189. 7 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 7 of 27 other necessities, one to four times per month, utilizing a motorized shopping cart while inside stores and with the help of her sister-in-law. 41 Ms. McAlees alleges disability due to morbid obesity, hereditary lymphedema, cellulitis, type II diabetes, and asthma. 42 Ms. McAlees walks with a cane and wears compression sleeves on her legs. 43 Ms. McAlees’ reoccurring cellulitis has resulted in her hospitalization on three occasions, with the most recent being in July 2015. 44 Her primary care provider referred her for gastric bypass surgery in 2013, and the Court understands that Ms. McAlees completed insurance required pre-operation workup, including a psychological examination and on-going physical therapy. 45 She protectively filed her application for disability benefits on November 6, 2013,46 and her date last insured is December 31, 2017. 47 41 Tr. 190, 53. 42 Dkt. 12 at 1; Tr. 241, 169. 43 Tr. 493, 426, 396, 522. 44 Tr. 362–63 (2011), 376 (2013), 596 (2015). 45 Dkt. 12 at 16–17 ("[she] has done everything possible to comply with the requirements of remaining eligible to undergo bariatric surgery"); see also Tr. 41, 65–66, 430 (sixth out of six required doctor visits, Nov. 12, 2014). 46 Tr. 18. 47 Tr. 69, 165. 8 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 8 of 27 At the ALJ hearing held on April 27, 2015, 48 Ms. McAlees was represented by counsel. 49 She timely appealed to this Court the denial by the Appeals Council in August 2016 to review the ALJ’s decision denying disability benefits. 50 V. DISCUSSION Ms. McAlees’ arguments in her motion for reversal and remand are two-fold. She challenges both the ALJ’s rejection of Dr. Purchiaroni’s medical opinions and RFC determination. 51 The Court addresses these issues in turn. 1. Weight of Medical Opinions "Regardless of its source, [the SSA] will evaluate every medical opinion [it] receive[s]."52 Medical opinions come from three types of sources: those who treat the claimant; those who examine but do not treat the claimant; and those who neither examine nor treat the claimant. "As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant." 53 Indeed, if the treating source’s opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence" in the 48 Tr. 33. 49 Tr. 34. There was a brief ALJ hearing December 16, 2014, that was continued in order for Ms. McAlees to obtain counsel. The ALJ admitted Exs. 1A–8F at that time. Tr. 63, 67. 50 Dkt. 1 at 2; Dkt. 10 at 2. 51 Dkt. 12 at 1, 12. 52 20 C.F.R. § 404.1527(c) (2015). 53 Garrison, 759 F.3d at 1012 (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). 9 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 9 of 27 record, that opinion will be given controlling weight. 54 "If a treating physician's opinion is not given'controlling weight’ because it is not'well-supported’ or because it is inconsistent with other substantial evidence in the record, the [SSA] considers specified factors in determining the weight it will be given." 55 These factors include the length of the treatment relationship and frequency of examination as well as the nature and extent of the relationship. 56 When weighing a medical opinion, including that of a treating source that is not controlling, the ALJ must consider the extent to which the opinion is supported by relevant evidence, such as medical signs and laboratory results; the extent to which an opinion is consistent with other opinions and evidence in the record; whether the opinion is within the source’s area of specialization; and other factors such as the medical source’s degree of familiarity with the SSA’s disability progress and with other information in the claimant’s record. 57 Applying these factors means that "[i]n many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight." 58 However, in some cases, the treating source’s opinion may not be entitled to the greatest weight. But "an ALJ may reject a treating doctor’s medical opinion," if no other doctor has contradicted it, "only for'clear and convincing’ reasons supported by substantial 54 20 C.F.R. § 404.1527(c)(2). 55 Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 56 20 C.F.R. § 404.1527(c)(2). 57 See Orn, 495 F.3d at 631 (citing 20 C.F.R. § 404.1527). 58 Id. at 632 (9th Cir. 2007) (citing "Giving Controlling Weight to Treating Source Med. Opinions," Social Security Ruling ("SSR") 96-2p, 1996 S.S.R. LEXIS 9, 1996 WL 374188 (July 2, 1996)). 10 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 10 of 27 evidence." 59 In addition, the opinion of an examining, but non-treating source, should generally be given more weight than that of a non-examining source. 60 Doctors do not always agree on all matters, and the ALJ is responsible for determining credibility and resolving conflicts and ambiguities in medical testimony. 61 But even when a treating source's opinion is contradicted by the opinion of an examining physician, a treating source’s opinion is generally "still entitled to deference." 62 If a treating source’s opinion is contradicted by another source, an ALJ may not reject that treating source’s opinion without providing "specific and legitimate reasons supported by substantial evidence in the record." 63 This can be done by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." 64 When rejecting a treating source’s opinions, the ALJ must do more than just offer his own conclusions; instead, "he must set forth his own interpretations and explain why they, rather than the doctors’, are correct." 65 But an ALJ may discredit a treating source’s opinions that are 59 Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998)). 60 Garrison, 759 F.3d at 1012 (citing Ryan v. Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008)). 61 Lewis, 236 F.3d at 509 (citing Reddick, 157 F.3d at 722). 62 Orn, 495 F.3d at 633 (citing SSR 96-2p). 63 Id. (quoting Reddick, 157 F.3d at 725) (internal quotation marks omitted). 64 Reddick, 157 F.3d at 725 (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 65 Id. (citing Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988)). 11 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 11 of 27 "conclusory, brief, and unsupported by the record as a whole or by objective medical findings."66 The SSA also permits a claimant to provide evidence from non-physician sources to show the severity of an impairment and how it affects a claimant’s ability to work, including evidence from a nurse practitioner, physicians’ assistant, chiropractor, or therapist, including a physical therapist. 67 And an ALJ must take into consideration the functioning of a "treatment team" when determining what weight to give a medical source’s opinions. 68 Here, Dr. Purchiaroni met with Ms. McAlees as a primary care provider at the Providence Family Medical Center ("PFMC") in 2014 and 2015. 69 During this time, Ms. McAlees was actively seeking bariatric surgery and in the process of completing a six-month supervised weight and exercise program, which was part of a required pre-operative workup. 70 The administrative records contains three treatments notes from Dr. Purchiaroni regarding Ms. McAlees, all of which occurred in Fall 2014. 71 In that time, Dr. Purchiaroni referred Ms. McAlees for a psychological examination and various medical tests as well as physical therapy in order to assist in fulfilling the exercise component; the severity of Ms. McAlees’ lymphedema hindered her ability to exercise at that 66 Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (quoting Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)) (emphasis omitted). 67 20 C.F.R. § 404.1513(d) (2015). 68 Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1039–40 (9th Cir. 2003). 69 Tr. 588. 70 Tr. 408 (fourth month, Aug. 2014), 415, 419 (fifth month, Sept. 15, 214), 426 (sixth month, Nov. 12, 2014). Medical records from PFMC show that Dr. Purchiaroni was also involved as part of a care team in some capacity as early as 2013. Tr. 354 (Aug. 2013). 71 Tr. 408 (Aug. 15, 2014), 415 (Sept. 15, 2014), 426 (Nov. 12, 1014). 12 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 12 of 27 time. 72 Ms. McAlees was prescribed hydrotherapy as part of her exercise program while under a physical therapist’s supervision. 73 She participated in at least forty physical therapy sessions between June 2014 and February 2015. 74 In April 2015, Dr. Purchiaroni completed a physical capacities evaluation where she opined about Ms. McAlees’ abilities and limitations in a work setting. The doctor opined that in an eight-hour day Ms. McAlees could continuously sit up to thirty minutes and for a total of two hours; stand up to three minutes continuously and for a total of fifteen minutes; and walk up to 500 feet or for three minutes continuously and for a total of fifteen minutes in an eight-hour workday.75 She further opined that Ms. McAlees could occasionally lift up to twenty-five pounds, carry up to twenty pounds as well as bend and reach; but she could never lift over twenty-five pounds, carry over twenty pounds, squat or climb or use her legs and feet for repetitive movements; however, she could use her hands for repetitive action. 76 Dr. Purchiaroni also opined that Ms. McAlees was completely restricted from being near unprotected heights, around moving machinery, exposed to marked changes in temperature as well as humidity and driving a motor vehicle, and that she was unable to travel on a daily basis. 77 She further opined that Ms. McAlees was 72 Tr. 436 (psychological evaluation), 499 (physical therapy), 430 (e.g., EKG completed, blood and urine tests completed, chest x-ray, abdominal ultrasound, and gastrointestinal tract radiography ordered). 73 Tr. 389, 394, 494. 74 Tr. 401 (June 12, 2014), 509 (Feb. 23, 2015); see also Tr. 459–68. 75 Tr. 582. 76 Tr. 582–83. 77 Tr. 584. 13 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 13 of 27 moderately restricted from being exposed to dust, fumes, and gases as well as stress, 78 and that she suffered medicinal side-effects from Norco, 79 which prohibited her from driving when she was taking it. 80 Dr. Purchiaroni noted that Ms. McAlees’ treatment consisted of water therapy, daily self-lymphatic draining, and medication. 81 In July 2015, Dr. Purchiaroni opined that Ms. McAlees could not work due to her "severe hereditary lymphedema and resultant high risk of cellulitis" following Ms. McAlees’ third hospitalization for cellulitis. 82 The doctor noted that due to Ms. McAlees’ proneness to cellulitis she can very quickly be in a life-threatening situation requiring immediate hospitalization to stabilize the cellulitis so it does develop into life-threatening sepsis. 83 She reiterated her opinion that Ms. McAlees should keep her legs elevated, in a non-gravity-dependent position (i.e., bed rest) at all times other than when she must walk or exercise. 84 78 Tr. 584. 79 Norco (containing Acetaminophen, Hydrocodone) is used to relieve moderate to severe pain. Hydrocodone is an opiate analgesic and in a class of medications called antitussives that relieves pain by changing the way the brain and nervous system respond to pain. Acetaminophen is in a class of medications called analgesics (pain relievers) and antipyretics (fever reducers) that works by changing the way the body senses pain and by cooling the body, https://medlineplus.gov/druginfo/meds/a601006.html (last visited May. 12, 2017). 80 Tr. 581. 81 Tr. 581. 82 Tr. 588 (letter from Dr. Purchiaroni dated July 23, 2015). 83 Tr. 588. 84 Tr. 588, 581. 14 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 14 of 27 The ALJ gave Dr. Purchiaroni’s opinions "little weight." 85 The ALJ reasoned that: (1) "no physical evaluation was performed to substantiate" the April 2015 opinion; (2) the bariatric surgery "was thought to be a very important factor in improving the [] lymphedema"; and (3) the doctor’s opinions "conflicts with physical therapy treatment notes." 86 Ms. McAlees argues that the ALJ’s reasons for rejecting Dr. Purchiaroni’s opinions were not legally sufficient and not supported by substantial evidence. 87 Specifically, Ms. McAlees asserts that the doctor’s notations implicitly show that she conducted physical examinations and that regardless, written examination findings from Dr. Gokey existed and she treated Ms. McAlees at PFMC from at least September 2013. 88 Ms. McAlees also asserts that her physical therapy notes do not indicate that her lymphedema was "manageable"—enough so that she can perform light work—but instead that it remained chronic, with only occasional relief. 89 The Commissioner responds that the ALJ properly weighed Dr. Purchiaroni’s opinions and cited two specific and legitimate reasons to reject them: (1) the doctor failed to provide any contemporaneous examination findings in support of her work-place restrictions; 90 and (2) the doctor’s opinions were inconsistent with progress noted in the physical therapy treatment notes. 91 85 Tr. 25. 86 Tr. 25. 87 Dkt. 12 at 13. 88 Id. at 14. 89 Id. at 15. 90 Dkt. 15 at 7. 91 Id. at 8. 15 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 15 of 27 The Commissioner also contends that the ALJ properly relied on "unexplained or inadequately explained" lack of seeking the bariatric treatment as a legitimate reason. 92 As a preliminary matter, the Court finds that Dr. Purchiaroni is a treating source. She began treating Ms. McAlees in at least August 2014 for her lymphedema, morbid obesity, and diabetes. 93 Dr. Purchiaroni worked with Ms. McAlees during the latter half of her pre-operative workup period. The Court also finds that Dr. Purchiaroni was part of a treatment team at PFMC. 94 Ms. McAlees’ primary care physicians were Dr. Purchiaroni and Dr. Gokey during different times throughout the period at issue in this case (i.e., August 2013 to June 2015). 95 From what the Court finds in the record, Dr. Purchiaroni began treating Ms. McAlees as her primary care physician in August 2014 and Dr. Gokey treated her as a primary care physician from August 2013, and likely before then, until June 2014. 96 Additionally, Ms. McAlees stated that she was treated by both doctors and physical therapy notes are addressed to both doctors and indicate both as Ms. McAlees’ treating physician. 97 Moreover, the medical records from PFMC show that multiple doctors treated Ms. McAlees at various times, for various reasons, and the treatment notes all appear to be part of 92 Id. 15 at 9. 93 Tr. 408, 414. 94 See Tr. 414, 354, 411, 419, 426. 95 Tr. 354, 414. 96 Tr. 408, 588, 319, 385, 361. 97 Tr. 214, 234, 236, 483, 517. 16 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 16 of 27 a shared database. 98 For example, Dr. Gokey notes that she reviewed treatment plans and notes and communicated with the treatment team who tended to Ms. McAlees while she was hospitalized for cellulitis in August 2013. 99 The physical therapist sent progress notes to the "Green Team— [Dr.]Purchiaroni, DO" when she learned that Dr. Purchiaroni was Ms. McAlees’ new doctor. 100 More telling, is that the medical records from PFMC show that both Dr. Purchiaroni and Dr. Gokey were at times residents treating Ms. McAlees. 101 Indeed, some of their assessments of and treatment plans for Ms. McAlees were reviewed and approved by other doctors. 102 This coincides with the Court’s understanding of how medical training transpires (i.e., the resident doctors treat patients and are under the supervision and guidance of an attending physician). It follows then both doctors’ notes were accessible to at least the attending physician(s). And logically, Dr. Purchiaroni would have reviewed Dr. Gokey’s notes regarding her treatment of Ms. McAlees when Dr. Purchiaroni began treating Ms. McAlees. As such, Dr. Purchiaroni could reasonably rely on the previous physical examinations to formulate her opinions and could see whether there were drastic changes in Ms. McAlees health and well-being. 98 See Tr. 318 ("discussed plan with resident team on rounds"), 359 (medical assistant progress note and physician progress note), 408 (medical assistant progress note and physician progress note), 426 ("[l]ast month I was unavailable, so [Ms. McAlees] did see Dr. Augdahl in order to maintain continuity"). 99 Tr. 311 ("I discussed [Ms. McAlees’] care with the... inpatient team and agree with their plan of care."). 100 Tr. 572. 101 Tr. 411 ("Author Type: Resident"), 365 ("Author Type: Resident"). 102 Tr. 411, 419 ("Discussed with Dr. McAllister, who is in agreement with the above assessment and plan."), 362 ("Encounter reviewed and discussed with Dr. Gokey. Agree with assessment and plan as stated in the progress notes."). 17 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 17 of 27 Accordingly, the Court finds that Dr. Purchiaroni is a treating physician; therefore, the ALJ must provide clear and convincing reasons to reject her opinions unless another doctor’s opinions contradict hers. The administrative record includes the opinions of Nathaniel Arcega, M.D., a state reviewing medical doctor, from April 2014. Dr. Arcega opined that Ms. McAlees could work, within certain physical limitations. 103 The doctor stated that Ms. McAlees’ cellulitis was "recurrent," because she had it in May 2011 and again in August 2013, but that it was not "unrelenting or persistent enough" to equal a listing and that she could work within the confines of his articulated RFC. 104 According to Dr. Arcega, Ms. McAlees was limited to occasionally carrying or lifting twenty pounds, climbing ramps or stairs, balancing, stooping, kneeling, crouching, crawling; frequently carrying or lifting ten pounds; and she could not climb ladders, ropes, or scaffolds. 105 Dr. Arcega also rejected Dr. Gokey’s opinion that Ms. McAlees was unable to work for twelve months following her 2013 hospitalization for cellulitis.106 Because there is an opinion that contradicts Dr. Purchiaroni’s, the ALJ must have provided specific, legitimate reasons for rejecting Dr. Purchiaroni’s opinion as opposed to clear and convincing. 107 The Court finds that the ALJ did not. 103 Tr. 76. 104 Tr. 74. Dr. Arcega noted 4.11 listing-chronic venous insufficiency. The Court notes that the ALJ did not discuss cellulitis and whether it meets or equals a medical listing and Ms. McAlees did not make this argument. 105 Tr. 73–75. 106 Tr. 75. 107 The Court notes that even though the ALJ only gave Dr. Arcega’s opinion "some weight," and the opinion is from April 2014, the Court still evaluates his rejection of Dr. Purchiaroni’s opinions based on 18 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 18 of 27 First, the ALJ’s stated reason that no contemporaneous physical evaluation was performed to substantiate the April 2015 opinion is not a legitimate reason, in this case, because the administrative record is replete with physical examinations. For example, a physical examination is included on a February 17, 2015 treatment note from Allene Whitney, M.D., who met with Ms. McAlees for several concerns including chronic lymphedema and medication refills. 108 And various doctors provided written notations of their physical examinations of Ms. McAlees at PFMC, including Dr. Purchiaroni and Dr. Gokey. For example, there are physical examination notes from December 2014, November 2014, September 2014, August 2014, June 2014, January 2014, October 2013, September 2013, and nearly a dozen from August 2013 when she was hospitalized for cellulitis.109 The physical examinations show that Ms. McAlees is morbidly obese with bilateral lower-extremity lymphedema and uncontrolled type II diabetes. The extent of just how swollen her legs were at any given time changes somewhat, and her weight changes minimally, but the longitudinal picture is the same: Ms. McAlees’ bilateral lower-extremity lymphedema is severe, she is morbidly obese, and she historically has uncontrolled diabetes. Consequently, the Court finds that Dr. Purchiaroni could rely on the finding of all these physical examinations, her appointments with Ms. McAlees, and her training as a physician. Dr. Purchiaroni had all of the notes from the months of physical therapy that Ms. McAlees attended, the doctor’s own personal observations, Ms. McAlees’ statements about her own health, and the years of treatment notes at PFMC to rely on. The record is clear that Dr. Purchiaroni the specific, legitimate reasons supported by substantial evidence standard because the opinion contradicts Dr. Purchaironi’s opinion that Ms. McAlees cannot work. 108 Tr. 442. 109 Tr. 435, 428, 425, 420–21, 410, 386–87, 364, 360, 358, 356, 316, 303, 329–48 (labs), 270. 19 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 19 of 27 reviewed the physical therapy treatment notes, which at that time were current and related to Ms. McAlees’ health and well-being while in physical therapy. 110 This was not a new doctor who, without ever seeing Ms. McAlees before, proceeded to opine that Ms. McAlees could not work based off of a five-minute consult. As such, the Court finds that the lack of a contemporaneous physical examination at the time the Dr. Purchiaroni completed the physical capacities evaluation is not a legitimate reason to reject her opinion as treating source. Related to Dr. Purchiaroni’s opinions, the Court notes that because Ms. McAlees’ third hospitalization for cellulitis occurred one month after the ALJ wrote his opinion denying disability benefits, the ALJ could not have taken that into account. He also could not have weighed Dr. Purchiaroni’s July 2015 opinion following this hospitalization. But the Appeals Council did have these medical records available for its review. 111 Since these medical records were properly before the Appeals Council for its consideration, and came to the Court as part of the certified transcript encompassing the administrative record, the Court may consider them on appeal. 112 The fact that Ms. McAlees was hospitalized for a third time because of cellulitis is striking. It validates and reinforces both Dr. Purchiaroni and Dr. Gokey’s opinions about the need for Ms. McAlees to have her legs in an elevated position at all times other than when she must walk or exercise. Conversely, it undercuts the ALJ’s RFC determination that Ms. McAlees can 110 See e.g., Tr. 492 (Oct. 4, 2014), 490 (Oct. 23, 2014), 488 (Nov. 11, 2014), 485 (Feb. 11, 2015), 483 (Feb. 18, 2015). 111 Tr. 4. 112 Burrell, 775 F.3d at 1136 (quoting Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012) (holding that the administrative record includes evidence submitted to and considered by the Appeals Council)). 20 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 20 of 27 perform light work with some simple postural and exertional limitations seeing how that requires "a good deal of walking or standing, or... sitting most of the time." 113 Moreover, the Court presumes that many physical examinations were conducted and multiple laboratory tests accompany the third hospitalization. Review of the medical documentation that accompanied the August 2013 hospitalization support this presumption. But what was included in the administrative record appears to be a patient discharge document that Ms. McAlees received when she was released from the hospital. 114 The Court finds that the Commissioner erred by not requesting the medical documents from PFMC before the Appeals Council denied its review of the ALJ’s decision. These records are important and necessary to properly consider Ms. McAlees medical conditions, especially since the hospitalization occurred only a month after the ALJ’s decision was made. 115 Second, the ALJ’s inclusion of the fact that Ms. McAlees’ anticipated bariatric surgery "was thought to be a very important factor in improving the claimant’s lymphedema"—but that it was not yet done—is not a legitimate reason to reject Dr. Purchiaroni’s opinions. Whether the surgery should improve Ms. McAlees’ lymphedema is irrelevant in determining what weight to 113 See supra note 28 providing a definition of light work from § 404.1567(b). 114 It is unclear why Ms. McAlees did not present a complete hospital medical record of the July 2015 hospitalization. Tr. 12, 7. 115 See Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001) ("[T]he ALJ has a special duty to develop the record fully and fairly and to ensure that the claimant’s interests are considered, even when the claimant is represented by counsel."); see also Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985) (holding that when a claimant’s condition is progressively deteriorating, "the most recent medical report is the most pro); Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994) ("[T]he goals of the Secretary and the advocates should be the same: that deserving claimants who apply for benefits receive justice."). 21 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 21 of 27 accord Dr. Purchiaroni’s opinions regarding Ms. McAlees’ workplace restrictions and abilities, which were made prior to the surgery. Dr. Purchiaroni made her opinions about Ms. McAlees workplace abilities as they stood in April 2015 when she completed the physical capacities evaluation; she did not speculate what Ms. McAlees’ abilities would be after bariatric surgery. She based these opinions on her understanding of Ms. McAlees’ medical history and present condition. And after Ms. McAlees was hospitalized for the third time due to cellulitis in July 2015, Dr. Purchiaroni further opined that there were "no reasonable professions or trades that would allow for [Ms. McAlees] employment" because Ms. McAlees’ "legs should remain elevated, in a non-gravity-dependent position," except when she must walk and with the aid of a cane. 116 Moreover, she notes that Ms. McAlees lymphedema is hereditary, which implies that there is no guarantee that it will actually get better after bariatric surgery. Indeed, Dr. Purchiaroni stated she was "hopeful" that the surgery would significantly improve the lymphedema. 117 The Court agrees with Ms. McAlees that the administrative record does not support a finding that the delay in obtaining the bariatric surgery is attributable to her lack of effort or any known counter-productive actions by her. Rather, the record shows that at the time she was hospitalized in August 2013 for cellulitis she became eligible for Medicaid. 118 It also shows that 116 Tr. 588. The determination of whether Ms. McAlees is disabled and whether there is a job in the national economy that Ms. McAlees can perform is reserved to the Commissioners and therefore the physician’s opinion is not entitled to deference. 20 C.F.R. § 404.1527(d) (2015). However, the reiteration of the bedrest orders reflects her professional judgment as a doctor regarding the severity of Ms. McAlees’ impairments and physical restrictions and is entitled to deference. 20 C.F.R. § 404.1527(a)(2) (2015). 117 Tr. 421. 118 Tr. 317 ("patient obtained [M]edicare yesterday," Aug. 29, 2013). 22 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 22 of 27 from that time she actively sought bariatric surgery and progressed through the pre-operative work-up requirements. 119 She started physical therapy and completed approximately fifty sessions along with monthly check-ins with her primary care physicians. The medical records note that Ms. McAlees was trying to lose weight and to walk as much as possible, while acknowledging that her walking ability was severely limited by the lymphedema and pain. 120 She also quit smoking. 121 Moreover, the fact that Ms. McAlees was ultimately unsuccessful in her weight loss endeavors is something that the SSA acknowledges routinely occurs with obesity, and therefore it is not surprising. 122 The Court acknowledges that there is unexplained delay in obtaining the surgery in the administrative record and that it is silent on why, as of June 2015, she still did not have the surgery. 123 But the administrative record does not support a finding that it is due to 124 Ms. McAlees. Thus the delay in the surgery is not a legitimate reason to reject Dr. Purchiaroni’s opinions or support the ALJ’s disability determination. 119 Tr. 281 ("now with [M]edicaid so patient is motivated," Sept, 2, 2013), 355 ("patient is very interested in a referral for gastric bypass surgery, Sept. 23, 2013), 374 (referral placed with bariatric surgeon, Grant M. Searles, M.D., Sept. 23, 2013). 120 Tr. 410, 417, 385, 499. 121 Tr. 503 (noted Mar. 20, 2014). 122 "Evaluation of Obesity," Social Security Ruling ("SSR") 02-1p, 2002 WL 34686281, 2002 SSR LEXIS 1 (Sept. 12, 2002) ("[T]reatment for obesity is often unsuccessful. Even if treatment results in weight loss at first, weight lost is often regained, despite the efforts of the individual to maintain the loss."). 123 Tr. 360 ("referral for gastric bypass surgery [placed]... [s] has been playing phone tag with Dr. Searles office and is getting frustrated," Jan. 15, 2104), 387, 497 ("We have been attempting to get her into see a physical therapist for the past 6 months; however, this has been unsuccessful and they request we re-send a referral today", May 21, 2014). 124 The administrative record supports a finding that Ms. McAlees is responsible for a two month delay in obtaining the surgery. During the ALJ hearing, she testified that she "took the holiday off of all the 23 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 23 of 27 The ALJ’s third reason for rejecting Dr. Purchiaroni’s opinions—that they were in contradiction to the physical therapy treatment notes—is not supported by substantial evidence. Dr. Purchiaroni stated that due to chronic lymphedema, Ms. McAlees is at high risk for repeated episodes of cellulites. 125 So did Dr. Gokey. 126 The physical therapy notes do not contradict this opinion. Dr. Purchiaroni’s work-related restrictions in April 2015 consider Ms. McAlees’ physical health both in her abilities and limitations, and these necessarily incorporate actions to prevent cellulitis flare-ups due to the chronic and severe bilateral lower-leg lymphedema. Moreover, the ALJ’s highlights of improvement from the physical therapy treatment notes are unpersuasive. The ALJ noted that "swelling was under control," the aquatic therapy made the lymphedema "manageable," and there was an increase in Ms. McAlees’ activity level. However, full review of the physical therapy treatment notes in administrative record, which begin in June 2014, more accurately illustrates Ms. McAlees "progress." Highlighting a few session treatment notes shows that the therapy sessions focused on getting the lymphedema under control and it remained problematic. For example, in September 2014, Ms. McAlees had been in therapy for three months, had undergone six lymphatic massages, and was performing self-lymphatic drainage at home. 127 At that time, it was noted that Ms. McAlees still had "significant swelling" and was wearing compression sleeves, and that medical stuff" and then resumed at the beginning of February and that she completed these by mid-April. Tr. 51–53. That makes December 2014 and January 2015 attributable to her. 125 Tr. 429 (Nov. 2014). 126 Tr. 388 (June 2014). 127 Tr. 570. 24 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 24 of 27 128 continued physical therapy would help Ms. McAlees "manage" the swelling. In November 2014, the physical therapist indicated that there was "[n]o significant improvement with swelling noted" even though Ms. McAlees overall endurance, strength, and tolerance of exercises had improved. 129 What degree of improvement is not defined or explained, but the physical therapist repeatedly requested additional physical therapy referrals. Indeed, in December 2014 the physical therapist stated that Ms. McAlees should continue with physical therapy—two to three times per week—in order to "monitor her swelling while awaiting approval for [bariatric] surgery." 130 In January 2015, the physical therapist noted "severe chronic swelling/pannus formation." 131 In February 2015, the physical therapist stated another lymphatic massage to manage the swelling was being considered. 132 This overview does not support the ALJ’s determination that the physical therapy notes conflicted with Dr. Purchiaroni’s opinions based on the ALJ’s implicit finding that Ms. McAlees was significantly better with the aid of the physical therapy. Consequently, the ALJ’s reliance on physical therapy notes is does not provide substantial evidence sufficient to reject Dr. Purchiaroni’s opinions. 128 Tr. 570. 129 Tr. 550. 130 Tr. 531. 131 Tr. 529. 132 Tr. 510. 25 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 25 of 27 (3) Appropriate Remand A court may remand a disability benefits case to the ALJ for further administrative proceedings or for an immediate calculation of benefits. A reviewing court "retains'flexibility’ in determining the appropriate remedy." 133 A remand for further proceedings is proper when, despite legal errors, the record is uncertain and ambiguous 134 and further administrative proceedings would serve a useful purpose. 135 "Where there is conflicting evidence, and not all essential factual issues have been resolved, a remand for an award of benefits is inappropriate."136 In contrast, a remand for an immediate calculation of benefits is warranted when the requirements of the "credit as true rule" are met. Those requirements are met when: (1) that the ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; (2) the record has been fully developed and further proceedings would serve no useful purpose; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 137 133 Burrell, 775 F.3d at 1141 (citing Garrison, 759 F.3d at 1021). 134 Treichler, 775 F.3d at 1104. 135 Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (citing Garrison, 759 F.3d at 1020); see also Burrell, 775 F.3d at 1141. 136 Brown-Hunter, 806 F.3d at 496 (citing Treichler, 775 F.3d at 1101). 137 Id. at 494 (citing Treichler, 775 F.3d at 1105; Garrison, 759 F.3d at 1020). 26 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 26 of 27 Here, the Court finds that the record has not been fully developed and further proceedings will serve a useful purpose since the medical records from the July 2015 hospitalization have not been reviewed at all or in conjunction with the record as a whole. 138 VI. CONCLUSION After careful review of the administrative record, the Court concludes, based upon the record as a whole, that harmful legal error exists in the Commissioner’s final decision and it is not supported by substantial evidence. IT IS HEREBY ORDERED that Ms. McAlees’ motion for reversal and remand is GRANTED. The Commissioner’s determination is VACATED and this matter is REMANDED for further administrative proceedings in accordance with this opinion, including obtaining the medical records from Ms. McAlees’ July 2015 hospitalization and follow-up related to cellulitis as well as any records from the bariatric surgeon, Dr. Searles during the time frame at issue in this case. IT IS SO ORDERED this 26th day of June, 2017./s/Timothy M. Burgess TIMOTHY M. BURGESS UNITED STATES DISTRICT JUDGE 138 In light of the Court’s decision to remand this case for further proceedings, the Court declines to address Ms. McAlees’ second argument that the ALJ incorrectly formulated her RFC. 27 McAlees v. Berryhill, 3:16-cv-00245-TMB Order Remanding for Further Proceedings Case 3:16-cv-00245-TMB Document 18 Filed 06/26/17 Page 27 of 27

JUDGMENT this matter is remanded for further administrative proceedings. Signed by Judge Timothy M. Burgess on 7/3/17. (Additional attachment(s) added on 4/12/2018: # (1) attorney fees and costs added and redistributed)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA MANDY MCALEES, Case No. 3:16-cv-00245-TMB Plaintiff, vs. NANCY A. BERRYHILL, Acting JUDGMENT Commissioner of Social Security, IN A CIVIL CASE Defendant. 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 hearing before the Court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED that the Commissioner's determination is VACATED and this matter is REMANDED for further administrative proceedings in accordance with this opinion, including obtaining the medical records from Ms. McAlees' July 2015 hospitalization and follow-up related to cellulitis as well as any records from the bariatric surgeon, Dr. Searles during the time frame at issue in this case. APPROVED: s/TIMOTHY M. BURGESS TIMOTHY M. BURGESS United States District Judge July 3, 2017 LESLEY K. ALLEN Date Clerk of Court Jmt-TMB CV-rev. 9-21-16 Case 3:16-cv-00245-TMB Document 19 Filed 07/03/17 Page 1 of 1

First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Mandy M.A. McAlees.

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 MANDY MCALEES, Plaintiff, Civil Action No. 3:16-cv-00245-TMB v-NANCY A. BERRYHILL, ACTING 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 her 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 she 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 3:16-cv-00245-TMB Document 20 Filed 09/26/17 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 September 26, 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: Justin L. Martin, Esq. Special Assistant U.S. Attorney Office of General Counsel Social Security Administration 791 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3735 Fax: (206) 615-2531 E-mail: justin.l.martin@ssa.gov Case 3:16-cv-00245-TMB Document 20 Filed 09/26/17 Page 2 of 2

Proposed Order

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA MANDY MCALEES, Plaintiff, Civil Action No. 3:16-cv-00245-TMB-v-NANCY A. BERRYHILL, ACTING 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, Mandy Mcalees, 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 her counsel, IT IS HEREBY ORDERED that attorney fees, expenses, and costs in the total amount of Five Thousand Three Hundred Ninety-Two Dollars and Sixty-Six Cents ($5,392.66) 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 $5,375.78 for paralegal and attorney’s fees under 28 U.S.C. § 2412(d); 2. Plaintiff is awarded $16.88 in expenses for Certified Mail for service of Summons and Complaint. 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 3:16-cv-00245-TMB Document 20-1 Filed 09/26/17 Page 1 of 2 300 South State Street Suite 420 Syracuse, NY 13202 So ordered. Date: ________________ ______________________________ Timothy M. Burgess Chief United States District Judge [proposed Order proffer: Howard D. Olinsky; copy to Justin L. Martin] Case 3:16-cv-00245-TMB Document 20-1 Filed 09/26/17 Page 2 of 2

DECLARATION of Howard D. Olinsky, Esq. re [20] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Mandy M.A. McAlees.

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 MANDY MCALEES, Plaintiff, Civil Action No. 3:16-cv-00245-TMB v-NANCY A. BERRYHILL, ACTING 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 3:16-cv-00245-TMB Document 21 Filed 09/26/17 Page 1 of 3 4. The Court ordered on June 26, 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 23.8 hours of work performed, they total $4,585.78 6. I am also requesting $100.00 per hour for 7.9 hours of paralegal time equaling $790.00. I am requesting $5,375.78 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., Nathaniel V Riley, Esq., and Michelle Fecio, Esq. The paralegals involved in working on this case are as follows: Shannon Persse, Michelle Callahan, Michael Smith, Vincent Wisehoon, Kyrsten Gifford, and Tamica Lockwood. 8. I am requesting reimbursement of expenses in the amount $16.88 for Certified Mail for service of the summons and complaint as shown in Exhibit D. 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. 10. Attached is the Fee Agreement duly executed by the plaintiff (Exhibit E). Case 3:16-cv-00245-TMB Document 21 Filed 09/26/17 Page 2 of 3 Waiver of Direct Payment of EAJA Fees 11. Attached is an Affidavit and Waiver of Direct Payment duly executed by the plaintiff (Exhibit F). 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 September 26, 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: Justin L. Martin, Esq. Special Assistant U.S. Attorney Office of General Counsel Social Security Administration 791 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3735 Fax: (206) 615-2531 E-mail: justin.l.martin@ssa.gov Case 3:16-cv-00245-TMB Document 21 Filed 09/26/17 Page 3 of 3

Exhibit A All Professional Time

Exhibit A Ledger Mcalees, Mandy Date  Subject Hours Timekeeper 9/9/2016 Files received, reviewed and processed from referral source for Attorney review 0.6 Gifford, Kyrsten 9/9/2016 Correspondence to Client re: Referral acknowledgment letter 0.2 Gifford, Kyrsten 9/9/2016 Telephone call to Client re: Attempt debt check-left VM 0 Gifford, Kyrsten 9/12/2016 Telephone call to Client re: Attempt debt check-left VM 0 Gifford, Kyrsten 9/15/2016 Review decisions and evidence to determine whether to appeal case 1 Eaglin, Paul B. 9/15/2016 Telephone Call with Client re: Completed debt conference call, explained process 0.4 Gifford, Kyrsten 9/26/2016 Telephone call to client re: Acceptance of case, forms-left VM 0 Lockwood, Tamica 9/27/2016 FDC prospect packet prepared for Client completion 0.6 Lockwood, Tamica 9/27/2016 FDC Prospect packet sent via Right Signature for client completion 0.2 Lockwood, Tamica 9/27/2016 Telephone call with Client re: Assistance with In Forma Pauperis application 0.4 Lockwood, Tamica 9/29/2016 FDC packet forms returned via Right Signature, reviewed for completion 0.3 Lockwood, Tamica 10/20/2016 Draft complaint, proposed summons, civil cover sheet, and letter to clerk 0.6 Eaglin, Paul B. 10/20/2016 Review motion for leave in forma pauperis, approve for filing 0.2 Eaglin, Paul B. 10/20/2016 Email initial case documents to Clerk for filing 0 Smith, Michael P. 10/21/2016 Federal Court-Accept Letter-New FDC Filing 0.3 Smith, Michael P. 11/18/2016 Review Order granting In Forma Pauperis status, directing service of process 0.1 Eaglin, Paul B. 11/18/2016 Review Summons Issued (text notice only) 0.1 Eaglin, Paul B. 11/22/2016 Received and processed Issued Summons via USPS 0.1 Smith, Michael P. 11/22/2016 Review Summons Issued via USPS 0.2 Eaglin, Paul B. 11/23/2016 Federal Court-Service of Process-Prepare Service packets USAO, OGC, AG 0.6 Callahan, Michelle 12/2/2016 Review Notice of appearance Richard Pomeroy o/b/o Carolyn Colvin 0 Eaglin, Paul B. 12/5/2016 Download Electornic return receipts USAO, OGC and AG 0 Callahan, Michelle 12/6/2016 Combine and file proof of service via CM/ECF 0.3 Callahan, Michelle 12/7/2016 Review Summons executed, record answer due date for monitoring 0.2 Eaglin, Paul B. 12/8/2016 Review scheduling order, calendar deadlines on task pad 0.2 Eaglin, Paul B. 12/9/2016 Review Docket annotation re: Opening Brief Motion Misc. Relief, make note 0.1 Olinsky, Howard D. 12/30/2016 Review Notice of appearance Justin Lane Martin o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 1/18/2017 Review Answer to complaint 0.1 Eaglin, Paul B. 1/19/2017 Combine, OCR, and live bookmark Federal Court Transcript (615 pages) 0.7 Callahan, Michelle 1/19/2017 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 2/13/2017 Review certified administrative record, take notes, organize facts 4 Fecio, Michelle 2/14/2017 Drafting procedural section, drafting facts 6.6 Fecio, Michelle 2/15/2017 Research issues and drafting arguments 5.2 Fecio, Michelle 2/16/2017 Peer Attorney review draft brief, suggest edits 0.8 Riley, Nathaniel 2/16/2017 Implement suggested edits, finalize second draft for Senior Attorney review 0.8 Fecio, Michelle 2/16/2017 Senior Attorney review draft brief, suggest edits 0.2 Eaglin, Paul B. 2/16/2017 Implement suggested edits, finalize and file brief (n/c for filing) 0.3 Fecio, Michelle 3/20/2017 Review Motion for extension to file Defendant brief 0.1 Eaglin, Paul B. 3/20/2017 Review Declaration of Justin Martin re: Motion for extension 0.1 Eaglin, Paul B. 4/19/2017 Review Defendant's response in opposition to motion (15 pages) 0.5 Olinsky, Howard D. 31.70 (Type = Time) and (Client = Mandy M. A. Mcalees)    Case 3:16-cv-00245-TMB Document 21-1 Filed 09/26/17 Page 2 of 3 Date  Subject Hours Timekeeper 4/19/2017 Assign Attorney writer to access/write reply 0.2 Olinsky, Howard D. 4/20/2017 Draft and file Motion for Pro Hac Vice admission 0 Olinsky, Howard D. 4/25/2017 Review Text order granting Defendants extension, calendar reply deadline update 0.1 Olinsky, Howard D. 5/5/2017 Correspondence to client re: Federal Court-Fully Briefed Case Docs to Client 0.3 Vincent Wisehoon 6/26/2017 Review Order granting motion for reversal and remand (27 pgs) 0.9 Olinsky, Howard D. 7/5/2017 Review Judgment in favor of Mandy Mcalees 0.1 Olinsky, Howard D. 7/7/2017 Federal Court-Remand Referral back to Referral Source 0.3 Callahan, Michelle 7/7/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 8/3/2017 Telephone call to Client re: Explanation for FDC remand-left VM 0 Vincent Wisehoon 9/22/2017 EAJA Preparation 1.5 Persse, Shannon 9/25/2017 Review Timeslips Finalize EAJA Motion 0.5 Olinsky, Howard D. 9/26/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 31.70 (Type = Time) and (Client = Mandy M. A. Mcalees)    Case 3:16-cv-00245-TMB Document 21-1 Filed 09/26/17 Page 3 of 3

Exhibit B Attorney Time

Exhibit B Ledger Mcalees, Mandy Date  Subject Hours Timekeeper 9/15/2016 Review decisions and evidence to determine whether to appeal case 1 Eaglin, Paul B. 10/20/2016 Draft complaint, proposed summons, civil cover sheet, and letter to clerk 0.6 Eaglin, Paul B. 10/20/2016 Review motion for leave in forma pauperis, approve for filing 0.2 Eaglin, Paul B. 11/18/2016 Review Order granting In Forma Pauperis status, directing service of process 0.1 Eaglin, Paul B. 11/18/2016 Review Summons Issued (text notice only) 0.1 Eaglin, Paul B. 11/22/2016 Review Summons Issued via USPS 0.2 Eaglin, Paul B. 12/2/2016 Review Notice of appearance Richard Pomeroy o/b/o Carolyn Colvin 0 Eaglin, Paul B. 12/7/2016 Review Summons executed, record answer due date for monitoring 0.2 Eaglin, Paul B. 12/8/2016 Review scheduling order, calendar deadlines on task pad 0.2 Eaglin, Paul B. 12/9/2016 Review Docket annotation re: Opening Brief Motion Misc. Relief, make note 0.1 Olinsky, Howard D. 12/30/2016 Review Notice of appearance Justin Lane Martin o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 1/18/2017 Review Answer to complaint 0.1 Eaglin, Paul B. 1/19/2017 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 2/13/2017 Review certified administrative record, take notes, organize facts 4 Fecio, Michelle 2/14/2017 Drafting procedural section, drafting facts 6.6 Fecio, Michelle 2/15/2017 Research issues and drafting arguments 5.2 Fecio, Michelle 2/16/2017 Peer Attorney review draft brief, suggest edits 0.8 Riley, Nathaniel 2/16/2017 Implement suggested edits, finalize second draft for Senior Attorney review 0.8 Fecio, Michelle 2/16/2017 Senior Attorney review draft brief, suggest edits 0.2 Eaglin, Paul B. 2/16/2017 Implement suggested edits, finalize and file brief (n/c for filing) 0.3 Fecio, Michelle 3/20/2017 Review Motion for extension to file Defendant brief 0.1 Eaglin, Paul B. 3/20/2017 Review Declaration of Justin Martin re: Motion for extension 0.1 Eaglin, Paul B. 4/19/2017 Review Defendant's response in opposition to motion (15 pages) 0.5 Olinsky, Howard D. 4/19/2017 Assign Attorney writer to access/write reply 0.2 Olinsky, Howard D. 4/20/2017 Draft and file Motion for Pro Hac Vice admission 0 Olinsky, Howard D. 4/25/2017 Review Text order granting Defendants extension, calendar reply deadline update 0.1 Olinsky, Howard D. 6/26/2017 Review Order granting motion for reversal and remand (27 pgs) 0.9 Olinsky, Howard D. 7/5/2017 Review Judgment in favor of Mandy Mcalees 0.1 Olinsky, Howard D. 9/25/2017 Review Timeslips Finalize EAJA Motion 0.5 Olinsky, Howard D. 23.80 (Type = Time) and (Client = Mandy M. A. Mcalees) and ((Timekeeper = Eaglin, Paul B.) or (Timekeeper = Fecio, Michelle) or (Tim...    Case 3:16-cv-00245-TMB Document 21-2 Filed 09/26/17 Page 2 of 2

Exhibit C Paralegal Time

Exhibit C Ledger Mcalees, Mandy Date  Subject Hours Timekeeper 9/9/2016 Files received, reviewed and processed from referral source for Attorney review 0.6 Gifford, Kyrsten 9/9/2016 Correspondence to Client re: Referral acknowledgment letter 0.2 Gifford, Kyrsten 9/9/2016 Telephone call to Client re: Attempt debt check-left VM 0 Gifford, Kyrsten 9/12/2016 Telephone call to Client re: Attempt debt check-left VM 0 Gifford, Kyrsten 9/15/2016 Telephone Call with Client re: Completed debt conference call, explained process 0.4 Gifford, Kyrsten 9/26/2016 Telephone call to client re: Acceptance of case, forms-left VM 0 Lockwood, Tamica 9/27/2016 FDC prospect packet prepared for Client completion 0.6 Lockwood, Tamica 9/27/2016 FDC Prospect packet sent via Right Signature for client completion 0.2 Lockwood, Tamica 9/27/2016 Telephone call with Client re: Assistance with In Forma Pauperis application 0.4 Lockwood, Tamica 9/29/2016 FDC packet forms returned via Right Signature, reviewed for completion 0.3 Lockwood, Tamica 10/20/2016 Email initial case documents to Clerk for filing 0 Smith, Michael P. 10/21/2016 Federal Court-Accept Letter-New FDC Filing 0.3 Smith, Michael P. 11/22/2016 Received and processed Issued Summons via USPS 0.1 Smith, Michael P. 11/23/2016 Federal Court-Service of Process-Prepare Service packets USAO, OGC, AG 0.6 Callahan, Michelle 12/5/2016 Download Electornic return receipts USAO, OGC and AG 0 Callahan, Michelle 12/6/2016 Combine and file proof of service via CM/ECF 0.3 Callahan, Michelle 1/19/2017 Combine, OCR, and live bookmark Federal Court Transcript (615 pages) 0.7 Callahan, Michelle 5/5/2017 Correspondence to client re: Federal Court-Fully Briefed Case Docs to Client 0.3 Vincent Wisehoon 7/7/2017 Federal Court-Remand Referral back to Referral Source 0.3 Callahan, Michelle 7/7/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 8/3/2017 Telephone call to Client re: Explanation for FDC remand-left VM 0 Vincent Wisehoon 9/22/2017 EAJA Preparation 1.5 Persse, Shannon 9/26/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 7.90 (Type = Time) and (Client = Mandy M. A. Mcalees) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Gifford, Kyrsten) or (...    Case 3:16-cv-00245-TMB Document 21-3 Filed 09/26/17 Page 2 of 2

Exhibit D Expenses

Exhibit D Ledger Mcalees, Mandy Date  Subject Amount Timekeeper 11/23/2016 Certified Mail Expense Summons and Complaint packets to Defendant's offices $18.66 Callahan, Michelle $18.66 (Client = Mandy M. A. Mcalees) and (Type = Cost)    Case 3:16-cv-00245-TMB Document 21-4 Filed 09/26/17 Page 2 of 2

Exhibit E Fee Agreement

Exhibit E 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 3:16-cv-00245-TMB Document 21-5 Filed 09/26/17 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 Kalamarides & Lambert 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 Kalamarides & Lambert. 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: September 27, 2016 Signature: __________________________________ Claimant Name: Mandy Mcalees Claimant Social Security Number: Dated: __________ Signature: ___________________________________ Howard D. Olinsky, Esq. Case 3:16-cv-00245-TMB Document 21-5 Filed 09/26/17 Page 3 of 3

Exhibit F Affirmation and Waiver of Direct Payment of EAJA Fees

Exhibit F UNITED STATES DISTRICT COURT DISTRICT OF ALASKA ({[ERROR]} DIVISION)--------------------------------------------------------------MANDY MCALEES, AFFIRMATION AND WAIVER OF DIRECT PAYMENT Plaintiff, OF EAJA FEES v. Civil Action No.: _________________ CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.---------------------------------------------------------------Mandy Mcalees, hereby states the following: 1. I am the Plaintiff in the above-captioned matter. 2. That I have retained Olinsky Law Group as my attorney for the above-captioned matter. 3. At the time that this action was begun, my net worth was less than $2,000,000.00. 4. If my case is remanded by the Federal Court, either by stipulation or order, my attorney may file for attorney’s fees pursuant to the Equal Access to Justice Act (EAJA). I understand that the EAJA fees are paid by the Federal Government and do not come from any back benefits owed to me by the Social Security Administration. 5. I hereby agree to waive direct payment of the EAJA fees and assign said fees to be paid directly to my attorney. 6. I understand that my attorney may still petition the Administration for legal fees for his or her work before the Administration that will be paid from my back benefits. As the Plaintiff in this case, I hereby declare and affirm under penalty of perjury that the information above is true and correct. Executed on September 27, 2016. __________________________ Mandy Mcalees Plaintiff Case 3:16-cv-00245-TMB Document 21-6 Filed 09/26/17 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 MANDY MCALEES, Plaintiff, Civil Action No. 3:16-cv-00245-TMB v-NANCY A. BERRYHILL, ACTING 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 3:16-cv-00245-TMB Document 21-7 Filed 09/26/17 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, Chief District Judge Hon. Timothy M. Burgess signed an Order on June 26, 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 July 3, 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 3:16-cv-00245-TMB Document 21-7 Filed 09/26/17 Page 2 of 3 1. Awarding an Equal Access to Justice Act Counsel Fee for $5,375.78; 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 $16.88. I declare under the penalty of perjury that the foregoing is true and correct. Executed this September 26, 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: Justin L. Martin, Esq. Special Assistant U.S. Attorney Office of General Counsel Social Security Administration 791 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3735 Fax: (206) 615-2531 E-mail: justin.l.martin@ssa.gov Case 3:16-cv-00245-TMB Document 21-7 Filed 09/26/17 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 MANDY MCALEES, Plaintiff, Civil Action No. 3:16-cv-00245-TMB v-NANCY A. BERRYHILL, ACTING 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: Justin L. Martin, Esq. Special Assistant U.S. Attorney Office of General Counsel Social Security Administration 791 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3735 Fax: (206) 615-2531 E-mail: justin.l.martin@ssa.gov September 26, 2017/s/Howard D. Olinsky Howard D. Olinsky, Esq. Case 3:16-cv-00245-TMB Document 21-8 Filed 09/26/17 Page 1 of 1

RESPONSE to Motion (Non-Opposition) re [20] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Carolyn W. Colvin.

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 JUSTIN L. MARTIN 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) 615-3735 Fax: (206) 615-2531 11 justin.l.martin@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 MANDY M.A. MCALEES, Case No. 3:16-cv-00245-TMB 16 Plaintiff, 17 DEFENDANT’S RESPONSE TO vs. PLAINTIFF’S MOTION FOR ATTORNEY 18 FEES NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. Defendant, the Commissioner of Social Security, files this response to Plaintiff’s request 21 for an award of attorney’s fees in the amount of $5,375.78 and expenses in the amount of $16.88, 22 pursuant to 28 U.S.C. § 2412 as set forth in Plaintiff’s Motion filed on September 26, 2017 23 24 Page 1 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY FEES-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 22 Filed 10/06/17 Page 1 of 3 1 (Docket #20). The Commissioner has given substantive consideration to the merits of Plaintiff’s 2 request and found no basis to object. Therefore, Defendant has no objection to this request and 3 will defer to the Court’s assessment of the matter. 4 DATED this 6th day of October 2017. 5 Respectfully submitted, 6 Bryan Schroder 7 United States Attorney 8 RICHARD L. POMEROY Assistant United States Attorney 9 MATHEW W. PILE 10 Acting Regional Chief Counsel, Seattle, Region X 11 s/Justin L. Martin JUSTIN L. MARTIN 12 Special Assistant United States Attorney Office of the General Counsel 13 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 14 Seattle, WA 98104-7075 Telephone: (206) 615-3735 15 Fax: (206) 615-2531 justin.l.martin@ssa.gov 16 17 18 19 20 21 22 23 24 Page 2 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY FEES-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 22 Filed 10/06/17 Page 2 of 3 1 2 3 CERTIFICATE OF SERVICE 4 I hereby certify that the foregoing Defendant’s Response to Plaintiff’s Motion for 5 Attorney Fees was filed with the Clerk of the Court on October 6, 2017, using the CM/ECF 6 system, which will send notification of such filing to the following: Howard D. Olinsky and Paul 7 B. Eaglin. 8 9 s/Timothy Shaw TIMOTHY SHAW 10 Paralegal Specialist Office of the General Counsel 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 3 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY FEES-[3:16-cv-00245-TMB] Case 3:16-cv-00245-TMB Document 22 Filed 10/06/17 Page 3 of 3

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Description
1
10/20/2016
COMPLAINT against Carolyn W. Colvin, filed by Mandy M.A. McAlees.
1
Exhibit A
1 Attachment
2
10/20/2016
Civil Cover Sheet.
3
10/20/2016
MOTION for Leave to Proceed in forma pauperis by Mandy M.A. McAlees.
4
10/20/2016
Unissued summons re Defendant SSA
1
Unissued Summons re Defendant USAG
2
Unissued Summons re Defendant USAO
2 Attachments
5
11/18/2016
ORDER granting 3 Motion for Leave to Proceed in forma pauperis. Clerk to issue summons and send to counsel who shall serve on def. Def has 60 days to answer. Signed by Judge Timothy M. Burgess on 11/18/16.
11/18/2016
Summons Issued as to Carolyn W. Colvin, U.S. Attorney and U.S. Attorney General (Text entry; no document attached.)
6
12/01/2016
NOTICE of Appearance by Richard L. Pomeroy on behalf of Carolyn W. Colvin
7
12/06/2016
SUMMONS Returned Executed by Mandy M.A. McAlees. Carolyn W. Colvin served on 11/28/2016, answer due 1/27/2017.
8
12/08/2016
SOCIAL SECURITY SCHEDULING ORDER: Admin rec due w/i 60 days of i/a by def; plf's opening brf due w/i 30 days after filing of agency rec; def's answering brf due w/i 30 day sof svc of plf's opening brf; reply may be filed w/i 14 days after svc of def's brf. Signed by Judge Timothy M. Burgess on 12/8/2016.
12/08/2016
Docket Annotation: For the purpose of tracking the briefing as ordered at docket 8, when filing the Opening Brief the attorney shall file the document using the event Motion Miscellaneous Relief and text in the relief being sought. Responsive filings should be filed using the event Response in Opposition to Motion or Response to Motion (Non-Opposition). The reply, if any, shall be filed using the event Reply to Response to Motion. (Text entry; no document attached.)
9
12/30/2016
NOTICE of Appearance by Justin Lane Martin on behalf of Carolyn W. Colvin
10
01/17/2017
ANSWER to 1 Complaint by Carolyn W. Colvin.
11
01/17/2017
Notice of Lodging Administrative Record
1
001 Certification Page
2
002 Court Transcript Index
3
003 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable
4
004 Payment Documents and Decisions
5
005 Jurisdictional Documents and Notices
6
006 Non Disability Related Development
7
007 Disability Related Development
8
008 Medical Records Part 1
9
009 Medical Records Part 2
9 Attachments
12
02/16/2017
MOTION for Remand re 8 Order, by Mandy M.A. McAlees.
13
03/17/2017
MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Remand re 8 Order, Unopposed by Carolyn W. Colvin.
1
Proposed Order
1 Attachment
14
03/17/2017
DECLARATION of Justin L. Martin re 13 MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Remand re 8 Order, Unopposed by Carolyn W. Colvin.
15
04/19/2017
RESPONSE in Opposition re [12] MOTION for Remand re [8] Order, filed by Carolyn W. Colvin.
16
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--2318839.) by Mandy M.A. McAlees.
1
Certificate of Good Standing
1 Attachment
17
04/25/2017
TMB TEXT ORDER GRANTING 13 Motion for Extension of Time to File Response/Reply as to 12 Motion for Remand re 8 Order, Unopposed. IT IS HEREBY ORDERED that the Defendant's Response is accepted as filed on 4/19/2017. Plaintiff shall have up to and including 5/3/2017 to file a Reply. (JDS, CHAMBERS STAFF)
18
06/26/2017
ORDER granting [12] Motion for Reversal and Remand. Commissioner's determination is VACATED and this matter is REMANDED for further administrative proceedings. (See PDF for details). Signed by Judge Timothy M. Burgess on 6/26/17.
19
07/03/2017
JUDGMENT this matter is remanded for further administrative proceedings. Signed by Judge Timothy M. Burgess on 7/3/17. (Additional attachment(s) added on 4/12/2018: # (1) attorney fees and costs added and redistributed)
20
09/26/2017
First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Mandy M.A. McAlees.
1
Proposed Order
1 Attachment
21
09/26/2017
DECLARATION of Howard D. Olinsky, Esq. re [20] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Mandy M.A. McAlees.
1
Exhibit A All Professional Time
2
Exhibit B Attorney Time
3
Exhibit C Paralegal Time
4
Exhibit D Expenses
5
Exhibit E Fee Agreement
6
Exhibit F Affirmation and Waiver of Direct Payment of EAJA Fees
7
Memorandum In Support
8
Certificate of Service
8 Attachments
22
10/06/2017
RESPONSE to Motion (Non-Opposition) re [20] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Carolyn W. Colvin.
23
12/27/2017
CLERK'S NOTICE re [16] Application to Appear Pro Hac Vice. The Application to Appear Pro Hac Vice by Howard D. Olinsky, at docket [16], is authorized under D.Ak. LR 83.1(d).
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