Orsburn v. Commissioner of Social Security Administration
Court Docket Sheet

District of Arizona

4:2017-cv-00296 (azd)

COMPLAINT. Filing fee received: $ 400.00, receipt number 0970-14375392 filed by Terry Orsburn.

Case 4:17-cv-00296-EJM Document 1 Filed 06/27/17 Page 1 of 7 1 Edward A Wicklund, Esq. 2 Olinsky Law Group One Park Place 3 300 South State Street 4 Suite 420 Syracuse, NY 13202 5 N.Y. Bar No. 5027818 6 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 7 twicklund@windisability.com 8 Attorney for Plaintiff, Terry Orsburn 9 10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 11 TUCSON DIVISION 12 TERRY ORSBURN,) NO. 13 Soc.Sec. #XXX-XX-5980,) 14 Plaintiff,) 15) v.) COMPLAINT 16) NANCY A. BERRYHILL, acting 17) Commissioner of Social Security,) 18 Defendant.) 19) 20 Plaintiff, Terry Orsburn, by her attorney, Edward A. Wicklund, alleges as follows: 21 22 1. The jurisdiction of this Court is invoked pursuant to 42 U.S.C. §§ 405(g) 23 and 1383(c)(3) to review a decision of the Commissioner of Social Security denying 24 Plaintiffs application for Social Security Disability Insurance benefits and Supplemental 25 26 Security Income benefits for lack of disability. 27 This action is an appeal from a final administrative decision denying 2. 28 Plaintiff s claim. Case 4:17-cv-00296-EJM Document 1 Filed 06/27/17 Page 2 of 7 1 3. This action is commenced within the appropriate time period set forth in th 2 attached Appeals Council Notice dated April 27, 2017. (Exhibit A). 3 4. Plaintiff, whose social security number is XXX-XX-5980, resides in 4 5 Tucson, Pima County, Arizona, which is within this judicial district and division. 6 5. The Defendant, Nancy A. Berryhill, is the acting Commissioner of Social 7 Security of the United States of America. 8 9 6. Plaintiff is disabled. 10 7. The agency committed error of law by denying Appeals Council review of 11 the decision by the Administrative Law Judge, or otherwise to deny relief that was within 12 13 the authority of the Appeals Council. 14 8. The conclusions and fmdings of fact of the Defendant are not supported by 15 substantial evidence and are contrary to law and regulation. 16 17 WHEREFORE, Plaintiff prays that this Court: 18 1. Find that the Plaintiff is entitled to Social Security Disability Insurance 19 benefits and Supplemental Security Income benefits under the provisions of the Social 20 21 Security Act; or 22 Remand the case for a further hearing; 2. 23 3. Award attorney's fees under the Equal Access to Justice Act, 28 U.S.c. § 24 25 2412, on the grounds that the Commissioner's action in this case was not substantially 26. ·fiIe d; and JustI 27 4. Order such other and further relief as the Court deems just and proper. 28 Dated this 27th day of June, 2017. Case 4:17-cv-00296-EJM Document 1 Filed 06/27/17 Page 3 of 7 1 2 BY: s/Edward A. Wicklund 3 Edward A. Wicklund, Esq. Attorney for Plaintiff 4 (Pending Admission Pro Hac Vice) 5 6 7 8 9 10 11 12 13 14 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A Case 4:17-cv-00296-EJM Document 1 Filed 06/27/17 Page 5 of 7 SOCIAL SECURITY ADMINISTRATION-Refer to: TLC Office of Disability Adjudication _5980 and Review 5107 Leesburg Pike.. iii Falls Church, VA 22041-3255 Telephone: (877) 670-2722 Date: April 27, 2017. iii!!..!!.. iii.. iii NOTICE OF APPEALS COUNCIL ACTION... II This is about your request for review ofthe Administrative Law Judge's decision dated! January 28,2016..... iii iii.. We Have Denied Your Request for Review-iii iii We found no reason under our rules to review the Adnunistrative Law Judge's decision. Therefore, we have denied your request for review. I!! This means that the Administrative Law Judge's decision is the fmal decision ofthe Commissioner of Social Security in your case. Rules We Applied We applied the laws, regulations and rulings in effect as of the date we took this action. Under our rules, we will review your case for any of the following reasons: • The Administrative Law Judge appears to have abused his or her discretion. • There is an error of law. • The decision is not supported by substantial evidence. • There is a broad policy or procedural issue that may affect the public interest. • We receive new and material evidence and the decision is contrary to the weight of all the evidence now in the record. Suspect Social Security Fraud? Please visit http://oig.ssa.gov/r 01' call the Inspector General's Fraud Hotline at 1-800-269-0271 (TTY 1-866-501-2101). See Next Page Case 4:17-cv-00296-EJM Document 1 Filed 06/27/17 Page 6 of 7 Teny Orsburn _5980) Page 3 on • The 60 days start the day after you receive this letter. We assume you received this letter..a;0 i!!.. 0'"0 ii 5 days after the date on it unless you show us that you did not receive it within the 5-day r' '" ~ period. t... z 0!! '"!! • If you cannot file for court review within 60 days, you may ask the Appeals Council 10!!..,;;? =..;: iii extend your time to file. You must have a good reason for waiting more than 60 days 10 '"0 ><.!! f" ask for court review. You must make the request in writing and give your reason(s) in the request. Q '"0 >-=.. iii. ii::.":a 0 t:I;.-.= iii ~ ill!!iii i You must mail your request for more time to the Appeals Council at the address shown at the ~!!:::!! lop ofthis notice. Please put the Social Security number(s) also shown at the top of this i! iii;;!::! notice on your request. We will send you a letter telling you whether your request for more-i! "" til ~ iii!!;; time has been granted.;;! g i = iii'" 8 • About The Law § •;; g ~ ~ g iii 8;. iii The right 10 court review for claims under Title II (Social Security) is provided for in Section 8 80 i • 205(g) ofthe Social Security Act. This section is also Section 405(g) of Title 42 ofthe United 0 i•!: '"0 fl ii States Code.!!J!::: i •:E!:i • i! The right to court review for claims under Title XVI (Supplemental Security Income) is ~ r!5 provided for in Section 1631(c)(3) of the Social Security Act. This section is also Section § g; 1383(c) of Title 42 of the United States Code. The rules on filing civil actions nre Rules 4(c)... and (i) in the Federal Rules of Civil Procedure. If You Have Any Questions If you have any questions, you may can, write, or visit any Social Security office. If you do call or visit an office, please have this notice with you. The telephone number ofthe local office that serves your area is (866)331-7693. Its address is: Social Security 3808 N 1st Ave Tucson, AZ 85719-2030 Jill Luther Appeals Officer Enclosure: Order of Appeals Council cc: Barbara D Tilker 25 Newbridge Rd Suite 203 Hicksville, NY 11801-2887 Case 4:17-cv-00296-EJM Document 1 Filed 06/27/17 Page 7 of 7-iii!!-iii.. • iii Social Security Administration OFFICE OF DISABILITY ADJUDICATION AND REVIEW ORDER OF APPEALS COUNCIL.-::: IN THE CASE OF CLAIM FOR Period of Disability Disability Insurance Benefits!! ~~E1?l. ~~~!:l~1.._~~~~Eity Inco~~__.~m •• n __. _ (Wage Earner).. iii The Appeals Council has received additional evidence, which it is making part ofthe record. That evidence consists of the following exhibits: Exhibit 12E Letter of contentions dated March 10, 2016, fro111 the claimant's representative. Date: April 27, 2017 • "~ •-= ====

Civil Cover Sheet)(DLC

Case 4: 17-cv-00296-EJM Document 1-1 FiledHSwazd, PEyEFyfcgi bin/generate _ civil js44. pl UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Civil Cover Sheet This automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference of the United States in September 1974. The data is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. The information contained herein neither replaces nor supplements the filing and service of pleadings or other papers as required by law. This form is authorized for use only in the District of Arizona. The completed cover sheet must be printed directly to PDF and filed as an attachment to the Complaint or Notice of Removal. Plaintiff(s): Terry Orsburn Defendant(s): Nancy A Berryhill County of Residence: Pima County of Residence: Pima County Where Claim For Relief Arose: Pima Plaintiff's Atty(s): Defendant s Atty(s). Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State Street Ste. 420 Syracuse, New York 13202 315-701-5780 II. Basis of Jurisdiction: 2. U. S. Government Defendant III. Citizenship of Principal Parties (Diversity Cases Only) Plaintiff-N/A Defendant:-N/A IV. Ori 1. Original Proceeding V. Nature of Suit: 863 DIWC/DIWW (405 (g) VI Cause of Action: 42 USC 405 (g) and 42 USC 1383 (c) (3): Denial of Social Security Disability Insurance benefits and Supplemental Security Income benefits. VII. Requested in Complaint Class Action: No Dollar Demand: Jury Demand: No 1 of 2 6/27/17, 11: 36 AM Case 4: 17-cv-00296-EJM Document 1-1 Filedtts/2mmed PyESEUtgi-bin/generate _ civil js44. p! VIII. This case is not related to another case. Signature: s/Edward A. Wicklund Date: 6/27/2017 If any of this information is incorrect, please go back to the Civil Cover Sheet Input form using the Back button in your browser and change it. Once correct, save this form as a PDF and include it as an attachment to your case opening documents. Revised: 01/2014 2 of 2 6/27 17, 11: 36 AM

SUMMONS Submitted by Terry Orsburn.

Case 4: 17-cv-00296-EJIM Document 2 Filed 06/2717 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona TERRY ORSBURN Plaintiffs Civil Action No. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant s name and address) Office of the Regional Chief Counsel, Region X Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3) – you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St, Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 4: 17-cv-00296-EJM Document 2 Filed 06/27/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (1) This summons for (name of individual and title, if any) was received by me on (date) 0 I personally served the summons on the individual at (place) on (date) Or O I left the summons at the individual's residence or usual place of abode with (name) on (date) a person of suitable age and discretion who resides there,, and mailed a copy to the individual's last known address; or 0 I served the summons on (name of individual) who is designated by law to accept service of process on behalf of (name of organization) on (date) Or o I returned the summons unexecuted because Or 0 Other (specify): My fees are $ for travel and s for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

Summons

Case 4: 17-cv-00296-EJM Document 2-1 Filed 06/27/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona TERRY ORSBURN Plaintiffs) V Civil Action No. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) United States Attorney General Constitution Avenue & 10th St, NW Washington, DC 20530 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St, Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 4: 17-cv-00296-EJM Document 2-1 Filed 06/27/17 Page 2 of 2 AO 440 (Rev 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (1) This summons for (name of individual and title, if any) was received by me on (date) 0 I personally served the summons on the individual at (place) on (date) Or o I left the summons at the individual's residence or usual place of abode with (name) a person of suitable age and discretion who resides there, on (date) and mailed a copy to the individual's last known address; or o I served the summons on (name of individual) who is designated by law to accept service of process on behalf of (name of organization) on (date) Or o I returned the summons unexecuted because Or Do Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

Summons)(DLC

Case 4: 17-cv-00296-EJM Document 2-2 Filed 06/27/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona TERRY ORSBURN Plaintiffs) Civil Action No NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant s name and address) United States Attorney's Office District of Arizona Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, AZ 85004-4408 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3) – you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St, Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 4: 17-cv-00296-EJM Document 2-2 Filed 06/27/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (1)) This summons for (name of individual and title, if any) was received by me on (date) o I personally served the summons on the individual at (place) on (date) Or o I left the summons at the individual s residence or usual place of abode with (nane) a person of suitable age and discretion who resides there, on (date) and mailed a copy to the individual's last known address; or 0 I served the summons on (name of individual) who is designated by law to accept service of process on behalf of (name of organization on (date) Or 0 returned the summons unexecuted because Or 0 Other (specif9. My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

Filing fee paid, receipt number 0970-14375392. This case has been assigned to the Honorable Eric J Markovich. All future pleadings or documents should bear the correct case number: 4:CV-17-00296-TUC-EJM. Magistrate Election form attached.

Case 4:17-cv-00296-EJM Document 3 Filed 06/27/17 Page 1 of 2 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA CONSENT TO EXERCISE OF JURISDICTION BY UNITED STATES MAGISTRATE JUDGE INSTRUCTIONS TO ALL PARTIES ACTION REQUIRED WITHIN 14 DAYS Pursuant to Local Rule of Civil Procedure 3.7(b), all civil cases will be randomly assigned to a U.S. District Court Judge or to a U.S. Magistrate Judge. When a case is filed and assigned to a U.S. Magistrate Judge, consent forms, for all parties, are stamped with a case number and given to the individual who is filing the case. On these forms, consent may be give to the jurisdiction of the magistrate judge by signing the consent section of the form. If all parties consent, the case will remain with the magistrate judge, pursuant to 28:636(c)(1). These cases are assigned to a magistrate judge for all purposes, including trial and final entry of judgment. Any appeal from a judgment entered by the Magistrate Judge may be taken directly to the United States Court of Appeals for the Ninth Circuit in the same manner as an appeal from any other judgment of a district court. Consent to proceed before a Magistrate Judge is voluntary, and no adverse consequences of any kind will be felt by any party or attorney who objects to assignment of a case to the Magistrate Judge. The party filing the case or removal is responsible for serving all parties with the consent forms. If any party chooses the district judge option, the case will be randomly reassigned to a U.S. District Court Judge. To elect to have the case heard before a U.S. District Court Judge, the District Judge Option section of the form must be completed. Each party must file the completed consent form and certificate of service with the court no later than 14 days after entry of appearance. This document should be filed in paper form only and must serve a copy by mail or hand delivery upon all parties of record in the case. Case 4:17-cv-00296-EJM Document 3 Filed 06/27/17 Page 2 of 2 1 (FOR USE IN CIVIL CASES WITH MAGISTRATE JUDGE AS PRESIDER) 2 RETURN THIS FORM TO THE CLERK'S OFFICE NOT LATER THAN 3 FOURTEEN (14) DAYS FROM YOUR APPEARANCE IN THIS CASE. Do NOT electronically file this document! 4 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 6) 7) Plaintiff,) 8) vs.) 9) Case No. ______________) 10 Defendant.)) 11) CONSENT TO EXERCISE OF JURISDICTION BY 12 UNITED STATES MAGISTRATE JUDGE 13 In accordance with provisions of Title 28, U.S.C. Sec. 636(c)(1), the undersigned (party)(counsel of record for 14 ___________________________) in the above-captioned civil matter hereby voluntarily consents to have a United States Magistrate Judge conduct any and all further proceedings in the case, including trial and entry of a final judgment, 15 with direct review by the Ninth Circuit of Appeals if an appeal is filed. 16 Date: _______________________ _________________________________ 17 Signature 18 _________________________________ Print Name 19 ========================================================= DISTRICT JUDGE OPTION 20 Pursuant to Title 28, U.S.C. Sec. 636(c)(2) the undersigned (party)(counsel of record for 21 ___________________________) in the above captioned civil matter acknowledges the availability of a United States 22 Magistrate Judge but elects to have this case randomly assigned to a United States District Judge. 23 Date: _______________________ ___________________________________ 24 Signature ___________________________________ 25 Print Name 26 CERTIFICATE OF SERVICE 27 I hereby certify that a true copy of the foregoing Consent was served (by mail) (by hand delivery) on all parties of record in this case, this _____ day of _________, 20___. 28 ____________________________________ Signature

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

Case 4: 17-cv-00296-EJIM Document 4 Filed 06/2717 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona TERRY ORSBURN Plaintiffs Civil Action No. 4: CV-17-00296-TUC-EJM NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) Office of the Regional Chief Counsel, Region X Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) – or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3) – you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St, Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT ESD Date: Signe 5 CT OF ANY ISSUED ON 2: 42 pm, Jun 27, 2017 s/Brian D. Karth, Clerk Case 4: 17-cv-00296-EJM Document 4 Filed 06/27/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (1) This summons for (name of individual and title, if any) was received by me on (date) 0 I personally served the summons on the individual at (place) on (date) Or O I left the summons at the individual's residence or usual place of abode with (name) on (date) a person of suitable age and discretion who resides there,, and mailed a copy to the individual's last known address; or 0 I served the summons on (name of individual) who is designated by law to accept service of process on behalf of (name of organization) on (date) Or o I returned the summons unexecuted because Or 0 Other (specify): My fees are $ for travel and s for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

Summons

Case 4: 17-cv-00296-EJM Document 4-1 Filed 06/27/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona TERRY ORSBURN Plaintiffs) Civil 4: CV-17-00296-TUC-EJM Action No. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) United States Attorney General Constitution Avenue & 10th St, NW Washington, DC 20530 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT TES DIS Date: lerk CT OF AS ISSUED ON 2: 43 pm, Jun 27, 2017 s' Brian D. Karth, Clerk Case 4: 17-cv-00296-EJM Document 4-1 Filed 06/27/17 Page 2 of 2 AO 440 (Rev 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (1) This summons for (name of individual and title, if any) was received by me on (date) 0 I personally served the summons on the individual at (place) on (date) Or o I left the summons at the individual's residence or usual place of abode with (name) a person of suitable age and discretion who resides there, on (date) and mailed a copy to the individual's last known address; or o I served the summons on (name of individual) who is designated by law to accept service of process on behalf of (name of organization) on (date) Or o I returned the summons unexecuted because Or Do Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

Summons)(DLC

Case 4: 17-cv-00296-EJM Document 4-2 Filed 06/27/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona TERRY ORSBURN Plaintiffs) Civil Action No. 4: CV-17-00296-TUC-EJM NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) United States Attorney s Office District of Arizona Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, AZ 85004-4408 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Edward A. Wicklund, Esq. Olinsky Law Group 300 S. State St, Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT TES Date: Sigl F' lerk CT OF ARIZO ISSUED ON 2: 43 pm, Jun 27, 2017 s/Brian D. Karth, Clerk Case 4: 17-cv-00296-EJM Document 4-2 Filed 06/27/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (1)) This summons for (name of individual and title, if any) was received by me on (date) o I personally served the summons on the individual at (place) on (date) Or o I left the summons at the individual s residence or usual place of abode with (nane) a person of suitable age and discretion who resides there, on (date) and mailed a copy to the individual's last known address; or 0 I served the summons on (name of individual) who is designated by law to accept service of process on behalf of (name of organization on (date) Or 0 returned the summons unexecuted because Or 0 Other (specif9. My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

SCHEDULING ORDER: IT IS ORDERED that the parties must fully comply with the deadlines and procedures within this Order. Signed by Magistrate Judge Eric J Markovich on 6/28/17.

Case 4:17-cv-00296-EJM Document 5 Filed 06/28/17 Page 1 of 3 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Terry Orsburn, No. CV-17-00296-TUC-EJM 9 Plaintiff, SCHEDULING ORDER 10 v. 11 12 Commissioner of Social Security, 13 Defendant. 14 15 Plaintiff brings this action for review of the determination of the Commissioner of 16 the Social Security Administration (the "Commissioner"). The Clerk of Court assigned 17 this case to the expedited track pursuant to Local Rule of Civil Procedure 18 16.2(b)(1)(A)(i). Pursuant to LRCiv 16.2(b)(1)(B), the Court issues this Scheduling 19 Order without holding a scheduling conference. 20 Accordingly, 21 IT IS ORDERED that the parties must fully comply with the following deadlines 22 and procedures: 23 I. Briefing Requirements Contained in LRCiv 16.1. The parties must fully 24 comply with LRCiv 16.1 in its entirety and must strictly comply with the following 25 requirements: 26 (a) Opening Brief. Within sixty (60) days after the 27 answer is filed, Plaintiff must file an opening brief addressing why the Commissioner’s decision is not supported by 28 substantial evidence or why the decision should otherwise be reversed or the case remanded. Plaintiff’s opening brief must Case 4:17-cv-00296-EJM Document 5 Filed 06/28/17 Page 2 of 3 1 set forth all errors which Plaintiff contends entitle him or her to relief. The brief must also contain, under appropriate 2 headings and in the order indicated below, the following: 3 (1) A statement of the issues presented for review, set forth in separate numbered paragraphs. 4 (2) A Statement of the Case. This statement should indicate 5 briefly the course of the proceedings and its disposition at the administrative level. 6 (3) A Statement of Facts. This statement of the facts must 7 include Plaintiff’s age, education, and work experience; a summary of the physical and mental impairments alleged; a 8 brief outline of the medical evidence; and a brief summary of other relevant evidence of record. Each statement of fact 9 must be supported by reference to the page in the record where the evidence may be found. 10 (4) An argument. The argument, which may be preceded by 11 a summary, must be divided into sections separately treating each issue. Each contention must be supported by specific 12 reference to the portion of the record [by reference to specific page numbers] relied upon and by citations to 13 statutes, regulations, and cases supporting Plaintiff’s position. If any requested remand is for the purpose of taking 14 additional evidence, such evidence must be described in the opening brief, and Plaintiff’s argument must show that the 15 additional evidence is material and that there is good cause for the failure to incorporate such evidence into the record in 16 a prior proceeding. If such additional evidence is in the form of a consultation examination sought at Government expense, 17 Plaintiff’s opening brief must make a proffer of the nature of the evidence to be obtained. 18 (5) A Short Conclusion Stating the Relief Sought. 19 (b) Answering Brief. Defendant must file an answering 20 brief within thirty (30) days after service of Plaintiff’s opening brief. Defendant’s brief must (1) respond 21 specifically to each issue raised by Plaintiff and (2) conform to the requirements set forth above for 22 Plaintiff’s brief, except that a statement of the issues, a statement of the case and a statement of the facts need not be 23 made unless Defendant is dissatisfied with Plaintiff’s statement thereof. 24 (c) Reply Brief. Plaintiff may file a reply brief within fifteen 25 (15) days after service of Defendant’s brief. 26 (d) Length of Briefs. Unless otherwise ordered by the Court, the opening and answering briefs may not exceed 27 twenty-five (25) pages, including any statement of facts, with the reply brief limited to eleven (11) pages. The case will be 28 deemed submitted as of the date on which Plaintiff’s reply brief is filed or due.-2-Case 4:17-cv-00296-EJM Document 5 Filed 06/28/17 Page 3 of 3 1 (e) Oral Argument. If either party desires oral argument, it must be requested in the manner prescribed by Rule 7.2(f) of 2 the Local Rules of Civil Procedure upon the filing of the opening brief. Whether to allow oral argument is at the 3 discretion of the Court. 4 LRCiv 16.1(a)–(e) (emphasis added). 5 II. Warnings 6 In Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), the Court of Appeals 7 explained that the Commissioner’s decision to deny benefits would be overturned "only if 8 it is not supported by substantial evidence or is based on legal error." Correspondingly, 9 under our Local Rules, a general allegation that the Commissioner committed legal error, 10 or that the Commissioner’s determination is not supported by substantial evidence, is 11 insufficient to raise that issue for review. See Greenwood v. FAA, 28 F.3d 971, 977 (9th 12 Cir. 1994) (internal citation omitted) ("We review only issues which are argued 13 specifically and distinctly in a party’s opening brief. We will not manufacture arguments 14 for an appellant, and a bare assertion does not preserve a claim...."). Accordingly, if 15 either party fails to timely file a brief in full compliance with this Order, the Court may 16 strike the non-complying brief, dismiss the case, or remand to the agency, as appropriate. 17 See generally Fed. R. Civ. P. 41(b). 18 Regarding courtesy copies of documents for chambers, the parties are directed to 19 review Section II(D) of the Court’s Electronic Case Filing Administrative Policies and 20 Procedures Manual, which requires that "a courtesy copy of the filing, referencing the 21 specific document number, shall be printed directly from CM/ECF." See 22 http://www.azd.uscourts.gov/sites/default/files/documents/adm%20manual.pdf (emphasis 23 added). 24 Dated this 28th day of June, 2017. 25 26 27 28-3-

SERVICE EXECUTED filed by Terry Orsburn: Return of Service re: Summons, Complaint and Scheduling Order upon US Attorney's Office, Office of General Counsel, Attorney General on 7/24/2017.

Case 4:17-cv-00296-EJM Document 7 Filed 08/02/17 Page 2 of 6 Date Produced: 07/24/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0036 5698 58. Our records indicate that this item was delivered on 07/17/2017 at 01:58 p.m. in PHOENIX, AZ 85004. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local post office or Postal Service representative. Sincerely, United States Postal Service Information in this section provided by Walz Group, LLC. Recipient Information: Civil Process Clerk United States Attorney's Office District of Arizona 2 Renaissance Sq., 40 N. Central Ave. Suite 1200 Phoenix,AZ 85004 Reference Number: Orsburn, T USAO Case 4:17-cv-00296-EJM Document 7 Filed 08/02/17 Page 4 of 6 Date Produced: 07/24/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0036 5704 34. Our records indicate that this item was delivered on 07/18/2017 at 10:35 a.m. in SEATTLE, WA 98104. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local post office or Postal Service representative. Sincerely, United States Postal Service Information in this section provided by Walz Group, LLC. Recipient Information: Office of Regional Chief Counsel Region X, SSA 701 Fifth Avenue, Suite 2900 M/S 221A Seattle,WA 98104 Reference Number: Orsburn, T OGC Case 4:17-cv-00296-EJM Document 7 Filed 08/02/17 Page 6 of 6 Date Produced: 07/31/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0036 5704 58. Our records indicate that this item was delivered on 07/24/2017 at 04:40 a.m. in WASHINGTON, DC 20530. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local post office or Postal Service representative. Sincerely, United States Postal Service Information in this section provided by Walz Group, LLC. Recipient Information: U.S. Attorney General Constitution Avenue & 10th St., N.W. Washington,DC 20530 Reference Number: Orsburn, T AG

NOTICE OF ATTORNEY APPEARANCE: Jeffrey McClain appearing for Commissioner of Social Security Administration.

Case 4:17-cv-00296-EJM Document 8 Filed 08/17/17 Page 1 of 2 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Jeffrey R. McClain 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA43009 8 Fax: (206) 615-2531 jeffrey.mcclain@ssa.gov 9 Telephone: (866) 964-6291 x 28241 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Terry Orsburn, 14 No. CV-17-296-TUC-EJM 15 Plaintiff, 16 DEFENDANT’S NOTICE OF vs. APPEARANCE 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 PLEASE TAKE NOTICE that Defendant Commissioner of Social Security 22 23 hereby notifies Plaintiff and this Court that the following Special Assistant U.S. 24 Attorney will appear as counsel of record in the above-captioned case: 25 Jeffrey R. McClain 26 Special Assistant United States Attorney 27 Office of the General Counsel Social Security Administration 28 701 Fifth Avenue, Suite 2900 M/S 221A Case 4:17-cv-00296-EJM Document 8 Filed 08/17/17 Page 2 of 2 1 Seattle, WA 98104-7075 State Bar No. WA43009 2 Fax: (206) 615-2531 3 jeffrey.mcclain@ssa.gov Telephone: (866) 964-6291 x 28241 4 5 DATED this 17th day of August 2017. 6 Respectfully submitted, 7 ELIZABETH A. STRANGE 8 Acting United States Attorney 9 District of Arizona 10 s/Jeffrey R. McClain 11 JEFFREY R. MCCLAIN Special Assistant United States Attorney 12 13 Of Counsel for the Defendant: 14 MATHEW W. PILE 15 Acting Regional Chief Counsel, Social Security Administration Office of the General Counsel, Region X 16 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 17 18 19 CERTIFICATE OF SERVICE 20 I hereby certify that the foregoing Notice of Appearance was filed with the Clerk 21 of the Court on August 17, 2017, using the CM/ECF system which will send notification 22 23 of such filing to the following: Edward Allen Wicklund. 24 25 s/Timothy Shaw TIMOTHY SHAW 26 Paralegal Specialist Office of the General Counsel 27 28 2

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

Case 4:17-cv-00296-EJM Document 11 Filed 09/18/17 Page 1 of 3 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Jeffrey R. McClain 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA43009 8 Fax: (206) 615-2531 jeffrey.mcclain@ssa.gov 9 Telephone: (866) 964-6291 x 28241 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Terry Orsburn, No. CV-17-00296-TUC-EJM 14 15 Plaintiff, 16 ANSWER vs. 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 Defendant, in answer to Plaintiff’s complaint, admits, denies and alleges as follows: 22 1. Defendant admits this court has jurisdiction pursuant to 42 U.S.C. § 405(g). 23 2. Defendant admits the allegations contained Paragraphs 2 and 3. 24 25 3. Defendant lacks sufficient knowledge sufficient to form a belief about the 26 allegations in Paragraph 4, except that Plaintiff’s social security number is a 27 matter of record with the Defendant. 28 Case 4:17-cv-00296-EJM Document 11 Filed 09/18/17 Page 2 of 3 1 4. Defendant admits the allegations contained in Paragraph 5. 2 5. Defendant denies the allegations contained in Paragraphs 6, 7, and 8. 3 6. The remainder of the Complaint is a prayer for relief, including a request for 4 5 attorney’s fees. Defendant denies that Plaintiff is entitled to judgment or any 6 requested relief. 7 7. Defendant denies all allegations of the complaint not specifically admitted or 8 clarified. 9 10 8. In accordance with 42 U.S.C. § 405(g), Defendant files as part of the answer a 11 certified copy of the transcript of the record including the evidence upon which 12 Defendant based the challenged decision. 13 14 WHEREFORE, Defendant prays for judgment dismissing the complaint, with 15 costs, and for judgment in accordance with 42 U.S.C. § 405(g), affirming Defendant’s 16 decision. 17 18 DATED this 18th day of September 2017. 19 Respectfully submitted, 20 ELIZABETH A. STRANGE 21 Acting United States Attorney District of Arizona 22 23 s/Jeffrey R. McClain JEFFREY R. MCCLAIN 24 Special Assistant United States Attorney 25 26 27 28 2 Case 4:17-cv-00296-EJM Document 11 Filed 09/18/17 Page 3 of 3 1 Of Counsel for the Defendant: 2 3 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 4 Office of the General Counsel, Region X 5 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 6 7 8 9 10 11 CERTIFICATE OF SERVICE 12 I hereby certify that the foregoing Answer was filed with the Clerk of the 13 14 Court on September 18, 2017, using the CM/ECF system, which will send 15 notification of such filing to the following: Edward Allen Wicklund. 16 17 s/Barbara Eadie 18 BARBARA EADIE 19 Paralegal Specialist Office of the General Counsel 20 21 22 23 24 25 26 27 28 3

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

Case 4:17-cv-00296-EJM Document 12 Filed 09/18/17 Page 1 of 2 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Jeffrey R. McClain 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA43009 8 Fax: (206) 615-2531 jeffrey.mcclain@ssa.gov 9 Telephone: (866) 964-6291 x 28241 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Terry Orsburn, No. CV-17-00296-TUC-EJM 14 15 Plaintiff, 16 NOTICE OF FILING CERTIFIED vs. ADMINISTRATIVE/TRANSCRIPT 17 OF RECORD Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 PLEASE TAKE NOTICE the Acting Commissioner of the Social Security 22 Administration, by and through Jeffrey R. McClain, Special Assistant United States 23 Attorney for the District of Arizona, files herein in accordance with section 205(g) of the 24 25 Social Security Act, 42 U.S.C. § 405(g), as part of the answer a certified electronic copy 26 of the transcript of the record including the evidence upon which the findings and 27 decision complained of are based. In addition, a paper copy was delivered to the court. 28 Case 4:17-cv-00296-EJM Document 12 Filed 09/18/17 Page 2 of 2 1 DATED this 18th day of September 2017. 2 3 Respectfully submitted, 4 ELIZABETH A. STRANGE 5 Acting United States Attorney District of Arizona 6 s/Jeffrey R. McClain 7 JEFFREY R. MCCLAIN 8 Special Assistant United States Attorney 9 Of Counsel for the Defendant: 10 MATHEW W. PILE 11 Acting Regional Chief Counsel, Social Security Administration 12 Office of the General Counsel, Region X 701 Fifth Avenue, Suite 2900 M/S 221A 13 Seattle, WA 98104-7075 14 15 16 17 18 CERTIFICATE OF SERVICE 19 20 I hereby certify that the foregoing Notice of Filing Certified 21 Administrative/Transcript of Record was filed with the Clerk of the Court on 22 September 18, 2017, using the CM/ECF system, which will send notification of 23 such filing to the following: Edward Allen Wicklund. 24 25 26 s/Barbara Eadie BARBARA EADIE 27 Paralegal Specialist 28 Office of the General Counsel 2

Certification Page

Case 4: 17-cv-00296-EJIM Document 12-1 Filed 09/18/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA TERRY ORSBURN Plaintiff VS.) CIVIL ACTION NO, 4: 17-CV-00296 NANCY A. BERRYHILL ACTING COMMISSIONER OF SOCIAL SECURITY Defendant CERTIFICATION The undersigned, as Chief, Court Case Preparation and Review Branch 1, Office of Appellate Operations, Office of Disability Adjudication and Review, Social Security Administration, hereby certifies that the documents annexed hereto constitute a full and accurate transcript of the entire record of proceedings relating to this case. LL Sorrender NANCY CHUNG Date: August 23, 2017 * * * Certified Administrative Records (CAR) are not compatible with Optical Character Recognition (OCR), therefore the Agency cannot provide a OCR searchable CAR.

Court Transcript Index

Case 4:17-cv-00296-EJM Document 12-2 Filed 09/18/17 Page 1 of 3 Court Transcript Index Civil Action Number: 4:17-CV-00296 Claimant: Terry Orsburn Account Number: 526-29-5980 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 04/27/2017 1-6 6 Request for Review of Hearing Decision/Order (HA 520), dated 7-15 9 03/10/2016 ALJ Hearing Decision (ALJDEC), dated 01/25/2016 16-37 22 Hearing Notice (507), dated 11/24/2015 38-58 21 Transcript of Oral Hearing (TRANHR), dated 01/05/2016 59-86 28 Exhibits Exhibit No. of No. Description Page No. Pages 1A Disability Determination Explanation/DDE T2-PHYSICAL 87-99 13 SIGNED BY DDS DR, dated 10/03/2013 2A Disability Determination Explanation/DDE T16-PHYSICAL 100-112 13 SIGNED BY DDS DR, dated 10/03/2013 3A Initial Disability Determination by State Agency, Title II, dated 113 1 11/01/2013 4A Initial Disability Determination by State Agency, Title XVI, 114 1 dated 11/01/2013 5A Disability Determination Explanation/DDE T16-PHYSICAL 115-129 15 SIGNED BY DDS DR, dated 03/11/2014 6A Disability Determination Explanation/DDE T2-PHYSICAL 130-144 15 SIGNED BY DDS DR, dated 03/11/2014 7A Reconsideration Disability Determination by State Agency, 145 1 Title II, dated 03/13/2014 8A Reconsideration Disability Determination by State Agency, 146 1 Title XVI, dated 03/13/2014 1B Appointment of Representative/Barbara D. Tilker, dated 147 1 06/24/2013 2B Representative Fee Agreement/Barbara D. Tilker, dated 148 1 06/24/2013 3B T2 Notice of Disapproved Claim, dated 11/01/2013 149-152 4 4B T16 Notice of Disapproved Claim, dated 11/01/2013 153-156 4 5B Request for Reconsideration, dated 11/25/2013 157-158 2 6B T2 Disability Reconsideration Notice, dated 03/13/2014 159-161 3 7B T16 Disability Reconsideration Notice, dated 03/13/2014 162-165 4 8B Request for Hearing by ALJ, dated 04/02/2014 166-167 2 9B Request for Hearing Acknowledgement Letter, dated 168-174 7 04/09/2014 10B Transfer Request for Hearing, dated 07/10/2015 175-181 7 11B Representative Fee Agreement, dated 01/05/2016 182 1 12B Appointment of Representative, dated 01/05/2016 183 1 DATE: August 25, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 4:17-cv-00296-EJM Document 12-2 Filed 09/18/17 Page 2 of 3 Court Transcript Index Civil Action Number: 4:17-CV-00296 Claimant: Terry Orsburn Account Number: 526-29-5980 Exhibits Exhibit No. of No. Description Page No. Pages 13B Withdrawal/Revocation of Representation, dated 01/05/2016 184 1 1D Workers' Comp/Public Disability Benefit Questionnaire, dated 185-192 8 04/19/2012 2D Application for Disability Insurance Benefits, dated 193-194 2 06/25/2013 3D Application for Supplemental Security Income Benefits, dated 195-200 6 07/17/2013 4D New Hire, Quarter Wage, Unemployment Query (NDNH), 201 1 dated 08/12/2015 5D Certified Earnings Records, dated 08/12/2015 202-203 2 6D Detailed Earnings Query, dated 08/12/2015 204-209 6 7D Summary Earnings Query, dated 08/12/2015 210 1 8D New Hire, Quarter Wage, Unemployment Query (NDNH)-211 1 None, dated 12/22/2015 1E Disability Report-Field Office, dated 07/17/2013 212-213 2 2E Disability Report-Adult, dated 07/17/2013 214-226 13 3E 3rd Party Correspondence, dated 09/24/2013, from 227-238 12 BARBARA TILKER 4E Disability Report-Appeals, dated 11/26/2013 239-244 6 5E Work History Report, dated 03/07/2014, from BARBARA 245-248 4 TILKER 6E Report of Contact, dated 04/03/2014 249 1 7E Disability Report-Field Office, dated 04/03/2014 250-251 2 8E Exhibit List to Rep PH2E, dated 08/12/2015 252-256 5 9E Disability Report-Field Office, dated 11/25/2913 257-258 2 10E Resume of Vocational Expert, dated 12/10/2015, from ABQ 259-260 2 NHC 11E Representative Brief, dated 12/29/2015 261-266 6 12E Representative Brief, dated 03/10/2016 267-274 8 1F Office Treatment Records, dated 02/23/2012 to 05/07/2012, 275-285 11 from CARONDELET SPINE CENTER 2F Hospital Records, dated 10/17/2011 to 12/06/2012, from Dr 286-303 18 Otis Alton Barron 3F Misc Medical Records, dated 02/21/2011 to 12/11/2012, from 304-336 33 PARK EAST PAIN MANAGMENT 4F Office Treatment Records, dated 06/24/2011 to 12/11/2012, 337-376 40 from SPINE AND PAIN CONSULTANTS OF NEW YORK 5F Outpatient Hospital Records, dated 08/14/2012 to 377-389 13 03/28/2013, from TMC OUTPATIENT PROCEDURE CTR&EL DORADO CAMPUS DATE: August 25, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 4:17-cv-00296-EJM Document 12-2 Filed 09/18/17 Page 3 of 3 Court Transcript Index Civil Action Number: 4:17-CV-00296 Claimant: Terry Orsburn Account Number: 526-29-5980 Exhibits Exhibit No. of No. Description Page No. Pages 6F Office Treatment Records, dated 05/29/2012 to 06/05/2013, 390-406 17 from ADVANCED NEUROLOGY&DIGNOSTICS 7F Office Treatment Records, dated 09/09/2013, from 407-413 7 CARONDELET MEDICAL GROUP-CARONDELET DRIVE 8F CE Psychology, dated 10/22/2013, from FRANCISCO 414-417 4 SANCHEZ, PH.D. 9F Hospital Records, dated 08/14/2012 to 07/23/2014, from Dr 418-427 10 Robert Berens 10F Office Treatment Records WC medical records, dated 428-484 57 02/01/2011 to 04/01/2012, from various 11F Office Treatment Records, dated 06/01/2011 to 08/15/2015, 485-529 45 from Center for Neurosciences/Karima 12F Medical Source Statement-Physical, dated 12/17/2015, from 530-531 2 Laura Young, FNP 13F Office Treatment Records, dated 09/23/2015 to 12/17/2015 532-550 19 14F Office Treatment Records, dated 08/14/2015, from george 551-558 8 digiacinto MD FAANS DATE: August 25, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable.

Documents Related to Administrative Process Including Transcript of Oral Hearin

Case 4:17-cv-00296-EJM Document 12-3 Filed 09/18/17 Page 1 of 87 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable Civil Action Number: 4:17-CV-00296 Claimant: Terry Orsburn Account Number: 526-29-5980 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 04/27/2017 1-6 6 Request for Review of Hearing Decision/Order (HA 520), dated 7-15 9 03/10/2016 ALJ Hearing Decision (ALJDEC), dated 01/25/2016 16-37 22 Hearing Notice (507), dated 11/24/2015 38-58 21 Transcript of Oral Hearing (TRANHR), dated 01/05/2016 59-86 28 DATE: August 25, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86

Payment Documents and Decisions

Case 4:17-cv-00296-EJM Document 12-4 Filed 09/18/17 Page 1 of 61 Payment Documents and Decisions Civil Action Number: 4:17-CV-00296 Claimant: Terry Orsburn Account Number: 526-29-5980 Exhibits Exhibit No. of No. Description Page No. Pages 1A Disability Determination Explanation/DDE T2-PHYSICAL 87-99 13 SIGNED BY DDS DR, dated 10/03/2013 2A Disability Determination Explanation/DDE T16-PHYSICAL 100-112 13 SIGNED BY DDS DR, dated 10/03/2013 3A Initial Disability Determination by State Agency, Title II, dated 113 1 11/01/2013 4A Initial Disability Determination by State Agency, Title XVI, 114 1 dated 11/01/2013 5A Disability Determination Explanation/DDE T16-PHYSICAL 115-129 15 SIGNED BY DDS DR, dated 03/11/2014 6A Disability Determination Explanation/DDE T2-PHYSICAL 130-144 15 SIGNED BY DDS DR, dated 03/11/2014 7A Reconsideration Disability Determination by State Agency, 145 1 Title II, dated 03/13/2014 8A Reconsideration Disability Determination by State Agency, 146 1 Title XVI, dated 03/13/2014 DATE: August 25, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146

Jurisdictional Documents and Notices

Case 4:17-cv-00296-EJM Document 12-5 Filed 09/18/17 Page 1 of 39 Jurisdictional Documents and Notices Civil Action Number: 4:17-CV-00296 Claimant: Terry Orsburn Account Number: 526-29-5980 Exhibits Exhibit No. of No. Description Page No. Pages 1B Appointment of Representative/Barbara D. Tilker, dated 147 1 06/24/2013 2B Representative Fee Agreement/Barbara D. Tilker, dated 148 1 06/24/2013 3B T2 Notice of Disapproved Claim, dated 11/01/2013 149-152 4 4B T16 Notice of Disapproved Claim, dated 11/01/2013 153-156 4 5B Request for Reconsideration, dated 11/25/2013 157-158 2 6B T2 Disability Reconsideration Notice, dated 03/13/2014 159-161 3 7B T16 Disability Reconsideration Notice, dated 03/13/2014 162-165 4 8B Request for Hearing by ALJ, dated 04/02/2014 166-167 2 9B Request for Hearing Acknowledgement Letter, dated 168-174 7 04/09/2014 10B Transfer Request for Hearing, dated 07/10/2015 175-181 7 11B Representative Fee Agreement, dated 01/05/2016 182 1 12B Appointment of Representative, dated 01/05/2016 183 1 13B Withdrawal/Revocation of Representation, dated 01/05/2016 184 1 DATE: August 25, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184

Non Disability Related Development

Case 4:17-cv-00296-EJM Document 12-6 Filed 09/18/17 Page 1 of 28 Non Disability Related Development Civil Action Number: 4:17-CV-00296 Claimant: Terry Orsburn Account Number: 526-29-5980 Exhibits Exhibit No. of No. Description Page No. Pages 1D Workers' Comp/Public Disability Benefit Questionnaire, dated 185-192 8 04/19/2012 2D Application for Disability Insurance Benefits, dated 193-194 2 06/25/2013 3D Application for Supplemental Security Income Benefits, dated 195-200 6 07/17/2013 4D New Hire, Quarter Wage, Unemployment Query (NDNH), 201 1 dated 08/12/2015 5D Certified Earnings Records, dated 08/12/2015 202-203 2 6D Detailed Earnings Query, dated 08/12/2015 204-209 6 7D Summary Earnings Query, dated 08/12/2015 210 1 8D New Hire, Quarter Wage, Unemployment Query (NDNH)-211 1 None, dated 12/22/2015 DATE: August 25, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211

Disability Related Development

Case 4:17-cv-00296-EJM Document 12-7 Filed 09/18/17 Page 1 of 64 Disability Related Development Civil Action Number: 4:17-CV-00296 Claimant: Terry Orsburn Account Number: 526-29-5980 Exhibits Exhibit No. of No. Description Page No. Pages 1E Disability Report-Field Office, dated 07/17/2013 212-213 2 2E Disability Report-Adult, dated 07/17/2013 214-226 13 3E 3rd Party Correspondence, dated 09/24/2013, from 227-238 12 BARBARA TILKER 4E Disability Report-Appeals, dated 11/26/2013 239-244 6 5E Work History Report, dated 03/07/2014, from BARBARA 245-248 4 TILKER 6E Report of Contact, dated 04/03/2014 249 1 7E Disability Report-Field Office, dated 04/03/2014 250-251 2 8E Exhibit List to Rep PH2E, dated 08/12/2015 252-256 5 9E Disability Report-Field Office, dated 11/25/2913 257-258 2 10E Resume of Vocational Expert, dated 12/10/2015, from ABQ 259-260 2 NHC 11E Representative Brief, dated 12/29/2015 261-266 6 12E Representative Brief, dated 03/10/2016 267-274 8 DATE: August 25, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274

Medical Records Part 1

Case 4:17-cv-00296-EJM Document 12-8 Filed 09/18/17 Page 1 of 211 Medical Records Civil Action Number: 4:17-CV-00296 Claimant: Terry Orsburn Account Number: 526-29-5980 Exhibits Exhibit No. of No. Description Page No. Pages 1F Office Treatment Records, dated 02/23/2012 to 05/07/2012, 275-285 11 from CARONDELET SPINE CENTER 2F Hospital Records, dated 10/17/2011 to 12/06/2012, from Dr 286-303 18 Otis Alton Barron 3F Misc Medical Records, dated 02/21/2011 to 12/11/2012, from 304-336 33 PARK EAST PAIN MANAGMENT 4F Office Treatment Records, dated 06/24/2011 to 12/11/2012, 337-376 40 from SPINE AND PAIN CONSULTANTS OF NEW YORK 5F Outpatient Hospital Records, dated 08/14/2012 to 377-389 13 03/28/2013, from TMC OUTPATIENT PROCEDURE CTR&EL DORADO CAMPUS 6F Office Treatment Records, dated 05/29/2012 to 06/05/2013, 390-406 17 from ADVANCED NEUROLOGY&DIGNOSTICS 7F Office Treatment Records, dated 09/09/2013, from 407-413 7 CARONDELET MEDICAL GROUP-CARONDELET DRIVE 8F CE Psychology, dated 10/22/2013, from FRANCISCO 414-417 4 SANCHEZ, PH.D. 9F Hospital Records, dated 08/14/2012 to 07/23/2014, from Dr 418-427 10 Robert Berens 10F Office Treatment Records WC medical records, dated 428-484 57 02/01/2011 to 04/01/2012, from various DATE: August 25, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484

Medical Records Part 2

Case 4:17-cv-00296-EJM Document 12-9 Filed 09/18/17 Page 1 of 75 Medical Records Civil Action Number: 4:17-CV-00296 Claimant: Terry Orsburn Account Number: 526-29-5980 Exhibits Exhibit No. of No. Description Page No. Pages 11F Office Treatment Records, dated 06/01/2011 to 08/15/2015, 485-529 45 from Center for Neurosciences/Karima 12F Medical Source Statement-Physical, dated 12/17/2015, from 530-531 2 Laura Young, FNP 13F Office Treatment Records, dated 09/23/2015 to 12/17/2015 532-550 19 14F Office Treatment Records, dated 08/14/2015, from george 551-558 8 digiacinto MD FAANS DATE: August 25, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558

OPENING BRIEF by Terry Orsburn.

Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 1 of 26 1 Edward A. Wicklund 2 Admitted Pro Hac Vice Olinsky Law Group 3 300 South State Street, Suite 420 4 Syracuse, NY 13202 NY State Bar No. 2044865 5 Telephone: (315) 701-5780 6 Facsimile: (315) 701-5781 twicklund@windisability.com 7 Attorney for Plaintiff Terry Orsburn 8 IN THE UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 Terry Orsburn, 11 Plaintiff, 12 Civil No. CV-17-00296-TUC-EJM 13 vs. 14 Nancy A. Berryhill, PLAINTIFF’S OPENING BRIEF 15 Acting Commissioner of Social 16 Security, 17 Defendant 18 PLAINTIFF’S OPENING BRIEF 19 IN SUPPORT OF A SOCIAL SECURITY APPEAL 20 I. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 21 1. The ALJ failed to weigh and opinion by treating physician Dr. Foote. 22 23 2. The ALJ’s finding that Plaintiff retained the residual functional capacity to engage in light work was not supported by substantial evidence and was 24 the product of legal error in that the ALJ failed to follow the treating 25 physician rule. 26 3. The ALJ’s adverse credibility determination failed to provide clear and 27 convincing reasons for discounting Plaintiff’s testimony regarding functional limitations stemming from her impairments. 28 Page 1 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 2 of 26 1 2 II. STATEMENT OF THE CASE 3 (A) Administrative Proceedings 4 On June 24, 2013, Plaintiff Terry Orsburn ("Plaintiff") protectively filed 5 6 applications for Title II Social Security Disability Insurance ("SSDI") and Title XVI 7 Supplemental Security Income ("SSI") benefits. Administrative Transcript ("T") 87, 8 100, 212. In both applications, Plaintiff alleged that disability began on October 17, 2011 9 10 ("AOD"). T 88, 101, 212. Plaintiff’s applications were initially denied on November 1, 11 2013, and denied upon reconsideration on March 13, 2014. T 98-99, 111-112, 128-129, 12 143-144. Plaintiff requested a hearing, occurring on January 5, 2016 before the 13 14 Honorable Administrative Law Judge MaryAnn Lunderman ("ALJ"). T 59–86. On 15 January 28, 2016, the ALJ found Plaintiff not disabled at Step 4 of the sequential 16 evaluation process. T 19–32. The Appeals Council denied Plaintiff’s requested review, 17 leaving the ALJ’s decision as the final agency decision. T 1-4. Plaintiff filed the instant 18 19 action seeking judicial review. Dkt. No. 1. This Court has jurisdiction. 42 U.S.C. § § 20 405(g), 1383(c)(3). 21 The Social Security Administration ("SSA") has promulgated a five-step 22 23 sequential evaluation process for use in making disability determinations. See 20 C.F.R. 24 §§ 404.1520(a), 416.920(a). The ALJ’s decision described the five-step process. T 20– 25 21. At Step 1, the ALJ found Plaintiff remained insured for Title II until March 30, 2017, 26 27 and had not engaged in substantial gainful activity since October 17, 2011, the alleged 28 onset date. T 21. At Step 2, the ALJ found severe impairment of spine disorder. T 21. Page 2 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 3 of 26 1 At Step 3, the ALJ found these impairments did not meet or equal a listing. T 22. The 2 ALJ found Plaintiff capable of a residual functional capacity ("RFC") of "light" work 3 4 with the following limitations, 5 the climbing of ramps, stairs, ladders, ropes, or scaffolds and stooping 6 (bending at the waist), kneeling crouching (bending at the knees), and crawling are limited to occasionally, while balancing and bilateral 7 overhead reaching are limited to frequently. Finally, exposure to 8 hazards, machinery, and heights must be entirely precluded within the work environment. 9 T 23. At Step 4, the ALJ determined, based upon vocational expert ("VE") testimony 10 11 that Plaintiff could perform her past relevant work as a production coordinator. T 30. 12 The ALJ also found that there were other jobs in the national economy that Plaintiff 13 could perform and she was thus found not disabled. T 30-31. 14 15 III. STATEMENT OF FACTS 16 (A) Plaintiff’s Age, Education, & Work History 17 Plaintiff, born in 1959, has at least a high school education. T 30. Her past 18 19 relevant work includes employment as stage hand/stage technician and a production 20 coordinator. T 30. The VE classified Plaintiff’s past work as a stage hand/stage 21 technician as heavy and skilled, and her work as a production coordinator as light and 22 23 skilled. T 30. 24 (B) Concise Summary of Medical Records and Opinions Relevant to this 25 Appeal 26 On February 24, 2011, Otis Alton Barron, M.D., noted that Plaintiff had a "hard 27 fall" while working as a stage hand, and though some of the pain had subsided, the pain 28 Page 3 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 4 of 26 1 persisted in her right shoulder and neck. T 470. On exam she had tenderness over her 2 paracervical muscles, and some parasthesisas in the ulnar nerve after palpated in medial 3 4 upperarm. T 470. She was assessed with sprain and strain of unspecified site of shoulder 5 and upper arm. T 471. 6 An April 19, 2011 MRI of Plaintiff’s thoracic spine showed mild left and moderate 7 8 right foraminal narrowing at T1/2; at T2/3 there was a mild disc bulge with facet 9 arthropathy contributing to moderate left foraminal narrowing, and a superimposed right 10 foraminal disc herniation contributing to severe right foraminal narrowing; at T3/4 there 11 was a disc bulge combining with facet arthropathy to result in mild left and severe right 12 13 foraminal narrowing; mild bulging of the discs at T4/5, T5/6, T6/7, and T7/8 with mild 14 bulging of the discs causing bilateral mild foraminal narrowing. T 310. A June 15, 2011 15 MRI of the lumbar spine showed multilevel disc degeneration throughout the lumbar 16 17 spine with disc desiccation and disc space narrowing. T 305. There is slight 18 retrolisthesis at L3-4, L4-5, and L5-S1 with prominent degenerative subchondral narrow 19 changes adjacent to the endplate at L5-S1. T 305. There are also multilevel endplate 20 21 Schmorl’s nodes at T11-12 through L2-3. T 305. 22 Plaintiff began treatment with Kenneth Chapman, M.D., on June 24, 2011. T 323. 23 At this appointment she reported neck, bilateral arms and low back pain that was an 8/10. 24 25 T 323. On exam she had reduced range of motion in her cervical extension (with pain), 26 and left and right rotation (with pain). T 323. She also had a positive Spurling test. T 27 323. Dr. Chapman diagnosed Plaintiff with cervical disc disorder without myelopathy 28 Page 4 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 5 of 26 1 and cervical radiculopathy. T 324. She was given a steroid injection. T 324. She 2 followed up with Dr. Chapman on August 2, 2011 and reported that the injection helped 3 4 40% for three weeks, and her pain was currently 25% better. T 321. Even with this 5 improvement Plaintiff still rated her pain as 7/10. T 321. 6 At another appointment with Dr. Chapman on September 16, 2011 Plaintiff 7 8 reported pain as 8/10, numbness in her left arm, and pain in her lower back that radiates 9 down into her left hip and left leg. T 344. She had another injection at this appointment. 10 T 344. She had another injection on January 31, 2012. T 363. 11 Plaintiff saw neurologist Robert Foote, M.D., on April 30, 2012. T 487. She 12 13 explained that she had two injuries at work and had not been able to work since her 14 second accident. T 487. He prescribed her Imitrex for her migraines, Ibuprofin, and 15 Flexeril, and recommended physical therapy and acupuncture. T 487. She also had an 16 17 EEG/NCV that showed mild carpal tunnel syndrome of the left upper extremity and an 18 absent tibial H-reflex in her left leg. T 394. 19 On May 20, 2012, Dr. Foote opined that Plaintiff cannot return to work due to 20 21 ongoing pain with activity. T 500. He noted that Plaintiff is unable to continue working 22 as a stage hand at the Metropolitan Opera and the length of time that this restriction will 23 apply was "unknown at this time." T 500. His opinion (based on this examination) was 24 25 that Plaintiff had 5% temporary impairment due to an EMG/NCV of her left arm showing 26 mild carpal tunnel syndrome. T 500. On another page he clarified that the 5% is in 27 28 Page 5 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 6 of 26 1 addition to the 60% disability that was already in place by Plaintiff’s treating physician 2 Dr. Barron. T 495. 3 4 Plaintiff saw neurologist Said Ibrahimi, M.D., on August 3, 2012, and he found 5 her left arm and leg to have 4/5 strength, and she also had a left foot drop. T 400. After 6 reviewing her records Dr. Ibrahimi diagnosed Plaintiff with displacement of cervical and 7 8 lumbar intervertebral discs without myelopathy, disturbance of skin sensation, and 9 thoracic or lumbosacral neuritis or radiculitis. T 401. 10 On August 14, 2012, Plaintiff saw Robert Berens, M.D., who noted that she 11 appeared in moderate distress. T 381. He recommended that she have another cervical 12 13 epidural injection. T 382. She had the injection on December 11, 2012. T 317. Before 14 the injection she reported pain that was a 10/10 and that she had pain with any daily 15 activities. T 316. She also had reduced range of motion in her back. T 316. 16 17 She saw Dr. Ibrahimi again on March 25, 2013. T 403. He noted that while 18 Plaintiff has had a good response from the epidural injections, she still had significant 19 residual pain. T 403. Her exam yielded the same response as the last appointment with a 20 21 left foot drop and 4/5 left side strength. T 404. 22 On June 5, 2013, Plaintiff had a hip MRI that Wendy McCurdy, M.D., read as 23 showing "tiny focus of intermediate signal within the superior labrum, coronal PD 11 of 24 25 21. Differential would be a sublabral sulcus vs. a tiny undersurface non-displaced left 26 acetabular labral tear." T 398. 27 28 Page 6 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 7 of 26 1 Plaintiff had another injection on June 27, 2013. T 388. On September 9, 2013, 2 Dr. Moher opined that Plaintiff cannot sit more than one hour at a time and no more than 3 4 four hours per day; stand no more than 15 minutes at one time and no more than four 5 hours per day; walk no more than 15 minutes at one time and no more than two hours per 6 day; cannot lift or carry more than 10 pounds, and her concentration/persistence may be 7 8 limited secondary to pain and fatigue. T 413. 9 On October 22, 2013, Plaintiff underwent a consultative examination with 10 Francisco Sanchez, Ph. D. T 415. He opined that Plaintiff’s symptoms were mild and 11 moderate on exam. T 417. He diagnosed her with adjustment disorder, depressed, 12 13 second to medical condition. T 417. He also opined that her ability to recall was 14 appropriate and her presentation was consistent with someone who is experiencing 15 psycho-social stressors and difficulties relate to medical problems and pain. T 417. 16 17 Plaintiff had another injection on July 23, 2014. T 424. She also saw Dr. Ibrahimi 18 on November 11, 2014 and reported numbness in her arms. T 521. On exam she had 19 reduced strength on the left side and reduced sensation over lateral aspect of her left calf 20 21 and left shoulder to pinprick and temperature. T 522. 22 On August 14, 2015, Dr. DiGiacinto opined that Plaintiff was limited to less 23 than sedentary work and she could never lift/carry, push/pull, climb, kneel, 24 25 bend/stoop/squat, reach overhead, reach at/or below shoulder level, or operate machinery. 26 T 529. He also limited her to only occasional sitting, standing, walking, simple grasping, 27 fine manipulation, and driving a vehicle. T 529. He explained that the physical findings 28 Page 7 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 8 of 26 1 to support this opinion were a foot drop and left sensation (illegible), and are supported 2 by an MRI. T 528. Plaintiff’s diagnoses were listed as cervical disc disease, and lumbar 3 4 disc disorder with myelopathy. T 527. He also wrote a letter to accompany the opinion 5 stating that Plaintiff had been a patient of his since June of 2011 and he treated her for 6 injuries related to her accidents at work. T 555. He opined that she has "marked 7 8 restriction in activity because of neck pain and lower back pain, restricted range of 9 motion in the neck and the lower back. She wears a left footdrop brace, but still has a 10 great deal of discomfort walking." T 555. He also wrote: 11 Examination reveals a healthy appearing woman in obvious discomfort. 12 She can extend her neck to 5 degrees, flex to about 30 degrees, laterally 13 flex to about 15-20 degrees, and rotate to 25-30 degrees in each direction with interscapular pain. Straight leg raising on the left causes lower back 14 pain. She has marked weakness in dorsiflexion in the left foot. She wears 15 a footdrop brace. 16 Sensory testing reveals loss of sensation in the L5 dermatome on the left 17 and some decrease in the L5 and S1 dermatome on the right. She has loss of sensation in the C6 and C5 dermatome bilaterally. 18 19 T 555. He also stated that he was going to send her for a new MRI of her cervical and 20 lumbar spine, and that the previous MRI showed multilevel degenerative changes and 21 Modic II changes at L5-S1, and significant disc pathology at C4-C5, C5-C6, and C6-C7 22 23 with canal compromise. T 555. Dr. DiGiacinto also opined that she has not yet reached 24 maximum medical improvement and she had a permanent marked partial disability. T 25 555. 26 27 On September 23, 2015, Laura Young, FNP, noted that Plaintiff needed lidocaine 28 patches because she was unable to apply cream to her back. T 534. She had joint pain Page 8 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 9 of 26 1 and left sided nerve pain and some paralysis. T 535. She also had an ataxic gait, and left 2 side strength was 3/5 in both upper and lower extremities. T 536. 3 4 On October 29, 2015, Plaintiff had another MRI which showed multilevel 5 spondylosis in the cervical spine with moderate canal stenosis at C4-5 and C5-6, and mild 6 to moderate canal stenosis at C6-7. T 545. It also showed ventral cord contouring at C4-7 8 5, C5-6, and C6-7 due to disc-osteophyte complexes, and multilevel foraminal stenosis. 9 T 545. 10 Plaintiff saw Nurse Practitioner, on November 11, 2015 where she reported 11 fatigue and depression. T 538. She saw her again on November 17, 2015 where she was 12 13 given another epidural injection. T 546. On December 17, 2015, Nurse Practitioner 14 Young opined that Plaintiff could never lift with her left hand and occasionally lift up to 15 five pounds with her right. T 530. She can stand/walk for one hour total in an eight hour 16 17 day and sit for 30 minutes total in an eight hour day. T 530. She also is unable to climb, 18 balance, stoop, and crouch, and can occasionally bend, kneel, and crawl. T 531. She also 19 opined that Plaintiff can use her right hand to reach and feel occasionally, and could 20 21 never push/pull. T 531. Finally, she opined that Plaintiff could not be exposed to 22 heights, chemicals, fumes, moving machinery, dust, humidity, and temperature. T 531. 23 She saw Nurse Practitioner Young again on December 17, 2015 and at this 24 25 appointment her left grip was 2/5 and right was 4/5. T 540. 26 27 28 Page 9 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 10 of 26 1 (C) Hearing Testimony 2 Plaintiff’s Testimony 3 At the hearing Plaintiff testified that she used to work as a stagehand at the 4 5 Metropolitan Opera in New York City, but had to leave due to her injuries. T 69. She is 6 unable to work due to paralysis on the left side of her body, and sitting or standing causes 7 her pain. T 70. Plaintiff is unable to lift any significant weight and lifting a grocery bag 8 9 with too much weight means she "pay[s] for it for days, spending many, many hours 10 reclined on ice bags and taking pain killers." T 70. She does minimal housework at home 11 and her medication side effects include sleepiness and depression. T 70-71. 12 13 Plaintiff also testified that she can sit for about 15 minutes without causing 14 problems and stand for the same amount of time. T 72. She can walk the length of a 15 football field most days but sometimes her pain does not allow her to walk that far. T 72. 16 17 She can shop by herself, but needs to lean on a grocery cart. T 72. She wears boots or a 18 leg brace because her left foot has paralysis and a drop foot. T 72-73. Plaintiff also 19 testified that she needs to wear a sacral belt, and on bad days she needs to wear a back 20 21 brace. T 73. 22 She spends her days managing her pain by reclining and using ice, gel packs, a 23 TENS machine, and an inversion machine. T 73-74. She has been unable to engage in 24 25 her former hobbies of dog training and horseback riding. T 74. Plaintiff does volunteer 26 as a docent at the zoo, but is able to frequently sit down and rest and as a volunteer she’s 27 able to stay home when she needs to. T 74-75. 28 Page 10 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 11 of 26 1 Vocational Expert Testimony 2 Vocational expert Ruth Van Vleet testified that under the current RFC Plaintiff 3 4 could do her past relevant work as a production coordinator as it is customarily 5 performed. T 79-80. She has transferable skills to the sedentary level including 6 coordinate and managing others, utilizing office equipment, and using a computer. T 80. 7 8 Under the current RFC the vocational expert testified that a hypothetical individual could 9 work as a retail seller, hotel desk clerk, and general office clerk. T 81. If the current 10 RFC was changed to sedentary level work, but everything else was the same, Plaintiff 11 could work as a receptionist, order clerk, and telephone solicitor/customer service 12 13 representative. T 80-81. 14 IV. ARGUMENT 15 16 1. The ALJ failed to weigh and opinion by treating physician Dr. Foote. 17 A Plaintiff’s residual functional capacity ("RFC") is the most he or she can do 18 despite limitations and is determined by assessing all the relevant evidence. 20 C.F.R. §§ 19 20 404.1545(a)(1); 416.945(a)(1). It is "an assessment of an individual’s ability to do 21 sustained work-related physical and mental activities in a work setting on a regular and 22 continuing basis. A'regular and continuing basis’ means 8 hours a day, for 5 days a 23 24 week, or an equivalent work schedule." Social Security Ruling ("SSR") 96-8p. The RFC 25 assessment must first identify the individual’s functional limitations or restrictions and 26 assess work-related abilities on a function-by-function basis. Id. 27 28 Here, the ALJ found Plaintiff has the RFC to perform light work Page 11 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 12 of 26 1 except the climbing of ramps, stairs, ladders, ropes, or scaffolds and 2 stooping (bending at the waist), kneeling, crouching (bending at the knees), and crawling are limited to occasionally, while balancing and 3 bilateral overhead reaching are limited to frequently. Finally, 4 exposure to hazards, machinery, and heights must be entirely precluded within the work environment. 5 T 23. 6 However, this RFC is unsupported by substantial evidence because the ALJ failed 7 8 to weigh the opinion of treating physician Dr. Foote. 9 The opinion of a Plaintiff’s treating physician as to the nature and severity of the 10 impairment should be given controlling weight so long as it is well-supported by 11 medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent 12 13 with the other substantial evidence. See 20 CFR §§ 404.1527; 416.927; See e.g. Garrison 14 v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Even when a treating physician’s opinion 15 is not given controlling weight, SSA regulations require the ALJ to consider several 16 17 factors in determining how much weight the opinion should receive, including the 18 frequency, length, nature, and extent of the treatment relationship, the medical evidence 19 supporting the opinion, the consistency of the opinion with the medical record as a whole, 20 21 and whether the treating physician is a specialist. Id. 22 "Where an ALJ does not explicitly reject a medical opinion or set forth specific, 23 legitimate reasons for crediting one medical opinion over another, he errs... In other 24 25 words, an ALJ errs when he rejects a medical opinion or assigns it little weight while 26 doing nothing more than ignoring it, asserting without explanation that another medical 27 opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a 28 Page 12 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 13 of 26 1 substantive basis for his conclusion." Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2 2014)(quoting Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir.1996)). 3 4 On May 20, 2012, Dr. Foote opined that Plaintiff cannot return to work due to 5 ongoing pain with activity. T 500. He noted that Plaintiff is unable to continue working 6 as a stage hand at the Metropolitan Opera and the length of time that this restriction will 7 8 apply was "unknown at this time." T 500. His opinion (based on this examination) was 9 that Plaintiff had 5% temporary impairment due to an EMG/NCV of her left arm showing 10 mild carpal tunnel syndrome. T 500. On another page he clarified that the 5% is in 11 addition to the 60% disability that was already in place by Plaintiff’s treating physician 12 13 Dr. Barron. T 495. 14 The ALJ did not evaluate, weigh, or discuss this opinion. In Kinzer v. Astrue, No. 15 CV11-328, 2012 WL 1230842, at *6-7 (D. Ariz. Apr. 12, 2012), a physician opined the 16 17 plaintiff could not return to full duty work as an electrician, that the plaintiff remain off 18 of work for an additional month, and that "[i]n the meantime the patient does not appear 19 to be capable of working in any capacity." These are all opinions on issues reserved to 20 21 the Commissioner, yet this Court noted these types of opinions must still be weighed. 22 Kinzer, 2012 WL 1230842, at 7. While this Court held for the Commissioner, it was 23 subsequently appealed to the Ninth Circuit who indicated the doctor in questions opinion 24 25 needed weighing. Kinzer v. Colvin, 567 F. App’x. 529, 530 (9th Cir. Apr. 10, 2014). 26 Thus, Dr. Foote’s opinion needed weighing, and the ALJ failed to mention it whatsoever. 27 This opinion is also highly supported by Dr. Foote’s own treatment notes. Dr. Foote also 28 Page 13 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 14 of 26 1 had the benefit of reviewing Plaintiff’s previous medical records before beginning to treat 2 her including an MRI of her cervical spine that showed degenerative disc disease at three 3 4 levels without significant cord compression. T 485-486. On April 30, 2012, Dr. Foote 5 noted that Plaintiff had some decrease in rotation of her neck to the left and some give-6 way on muscle testing on the left, and pain with passive range of motion of the left 7 8 shoulder and left hip. T 486. Dr. Foote also noted that a study of Plaintiff’s left upper 9 extremity showed mild carpal tunnel syndrome and her left lower extremity had an absent 10 tibial H-reflex1. T 526. 11 The ALJ’s complete failure to weigh or discuss this opinion clearly requires 12 13 remand, as the ALJ is required to weigh every medical opinion. Lingenfelter v. Astrue, 14 504 F.3d 1028, 1045 (9th Cir. 2007) (dissenting opinion) ("The decision of an ALJ fails 15 this test when the ALJ completely ignores or neglects to mention a treating physician’s 16 17 medical opinion that is relevant to the medical evidence being discussed…Such cases 18 should be remanded to the agency for proper consideration of the evidence.) 19 2. The ALJ’s finding that Plaintiff retained the residual functional capacity 20 to engage in light work was not supported by substantial evidence and was 21 the product of legal error in that the ALJ failed to follow the treating physician rule. 22 23 Treating physician opinions are entitled to controlling weight as long as it is 24 supported by medically acceptable clinical and laboratory diagnostic techniques are not 25 26 27 1 "An H reflex could be abnormal with an S1 radiculopathy." 28 https://emedicine.medscape.com/article/2094544-overview#a6 (accessed November 16, 2017). Page 14 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 15 of 26 1 inconsistent with the other substantial evidence of record. 20 C.F.R. §§ 404.1527(c)(2); 2 416.927(c)(2). If the opinion is not controlling, its weight it determined by factors 3 4 including the treatment relationship and the frequency of examination, the nature and 5 extent of the treatment relationship, supportability, consistency with the record, and 6 specialization of the physician. 20 C.F.R. §§ 404.1527(c)(2)-(6); 416.927(c)(2)-(6). See 7 8 e.g. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). If the opinion of a treating or 9 examining physician is going to be rejected, the ALJ must give clear and convincing 10 reasons that are supported by substantial evidence. Ryan v. Comm’r of Soc. Sec., 528 11 F.3d 1194, 1198 (9th Cir. 2008) (emphasis added). 12 13 On August 14, 2015, Dr. DiGiacinto opined that Plaintiff was limited to less 14 than sedentary work and she could never lift/carry, push/pull, climb, kneel, 15 bend/stoop/squat, reach overhead, reach at/or below shoulder level, or operate machinery. 16 17 T 529. He also limited her to only occasional sitting, standing, walking, simple grasping, 18 fine manipulation, and driving a vehicle. T 529. He explained that the physical findings 19 to support this opinion were a foot drop and left sensation (illegible), and are supported 20 21 by an MRI. T 528. Plaintiff’s diagnoses were listed as cervical disc disease, and lumbar 22 disc disorder with myelopathy. T 527. He also wrote a letter to accompany the opinion 23 stating that Plaintiff had been a patient of his since June of 2011 and he treated her for 24 25 injuries related to her accidents at work. T 555. He opined that she has "marked 26 restriction in activity because of neck pain and lower back pain, restricted range of 27 28 Page 15 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 16 of 26 1 motion in the neck and the lower back. She wears a left footdrop brace, but still has a 2 great deal of discomfort walking." T 555. He also wrote: 3 4 Examination reveals a healthy appearing woman in obvious discomfort. She can extend her neck to 5 degrees, flex to about 30 degrees, laterally 5 flex to about 15-20 degrees, and rotate to 25-30 degrees in each direction 6 with interscapular pain. Straight leg raising on the left causes lower back pain. She has marked weakness in dorsiflexion in the left foot. She wears 7 a footdrop brace. 8 Sensory testing reveals loss of sensation in the L5 dermatome on the left 9 and some decrease in the L5 and S1 dermatome on the right. She has loss of sensation in the C6 and C5 dermatome bilaterally. 10 11 T 555. He also stated that he was going to send her for a new MRI of her cervical and 12 lumbar spine, and that the previous MRI showed multilevel degenerative changes and 13 Modic II changes at L5-S1, and significant disc pathology at C4-C5, C5-C6, and C6-C7 14 15 with canal compromise. T 555. Dr. DiGiacinto also opined that she has not yet reached 16 maximum medical improvement and she had a permanent marked partial disability. T 17 555. 18 19 The ALJ gave Dr. DiGiacinto’s opinions little weight. T 29. She explained this by 20 stating: 21 These opinions are conclusions, which I find are inconsistent with the 22 record when considered as a whole. Additionally, the opinions are 23 conclusory in nature because the opinions are stated on a form merely requiring the doctor to checkmark boxes. The form suggested but required 24 no explanation beyond the checkmarks and in the case little explanation 25 was provided as to the opinions stated. Additionally, the stated opinions are inconsistent with the entirety of the record, including those records 26 reporting improvements from conservative measures like medication and 27 injections and physical therapy. 28 Page 16 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 17 of 26 1 Dr. DiGiacinto also provided a narrative letter opinion…For the same 2 reasons above, I afford these statements little weight. Initially I note the conclusions of Dr. DiGiacinto are inconsistent with previous medical 3 records, including those records which reflect little to no limitations in a 4 cervical range of motion and the up to eighty percent (80%) pain relief reported at various times, as discussed above. The opinion is also 5 inconsistent with the report of remarkable improvement in gait sequence, 6 the elimination of the left foot drop and notable decrease in lower back and lower left extremity pain as reflected throughout this record. (See for 7 example Exhibit 1F/5). 8 T 29. 9 The ALJ’s reasoning is factually and legally insufficient. First, she reduced the 10 weight given to the treating physician opinion because it was on a check box form, yet 11 immediately below acknowledged that the opinion also included a narrative letter that 12 13 explained why Dr. DiGiacinto gave the opinions he did. It was disingenuous of the ALJ 14 to treat the check-box form as if it was not accompanied by the narrative. 15 Essentially, the ALJ is arguing that the record showed improvement in Plaintiff’s 16 17 condition due to her treatments, yet this is the opposite of what the record shows. The 18 record that the ALJ cites to at 1F/5 (T 279) actually says that after completing physical 19 therapy and getting maximum medical improvement from that therapy, she is still 20 21 extremely limited. T 279. While at that time, September 7, 2012, physical therapist 22 Mark Danzer PT, DPT, did note that Plaintiff had improvement in her lumbar spine 23 active range of motion that is "within functional ranges," he also noted tolerating "daily 24 25 activities, such as prolonged sitting, standing, and walking for purposes of completing 26 household chores, self-care/grooming, cooking, etc., with minimal c/o pain interruption – 27 goal not met. The pt reports that she can only tolerate any given position of daily 28 Page 17 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 18 of 26 1 activity for a very short duration before pain forces her to stop." T 279 (emphasis in 2 original.) 3 4 Mr. Danzer explained (in full) in the discussion/plan section of his notes that: 5 While Terry reported pain as high as 9.5/10 during her last attended PT 6 treatment on 9-7-2012, she can now tolerate the home exercise program better. She can also tolerate a limited period of swimming, although, her 7 left arm is markedly impaired in that she cannot complete a full overhead 8 swimming-stroke. 9 During the course of earlier treatment here, Terry was issued a left ankle-foot orthosis (AFO) by her orthoptist. This has made a remarkable 10 improvement in her gait-sequence, eliminating her left foot-drop and 11 notably decreasing her LBP and left LE pain. 12 Outcome measures/goals are as stated above. Relative improvement was 13 noted with some goals. No goals were completely met, however. Pain and limitations of ROM remain the limiting factors. 14 15 Terry has now attended a total of 24 treatments. I believe that physical therapy intervention has offered her the most that it can at this point in 16 time. My recommendation is for pain management with a team approach. 17 Terry is receptive to this idea, which would ideally include counseling and possible acupuncture. Naturally, this determination must be made by the 18 physician. 19 Physical therapy intervention will be discontinued at this time. Thank you 20 for the referral of this patient. 21 T 279 (emphasis added). 22 23 Characterizing this statement as being a "remarkable improvement" is unfair, as 24 Plaintiff was still extremely limited in her daily activities. Even if this statement stands 25 for significant improvement, this statement was authored by a physical therapist, who is 26 27 not an acceptable medical source under the regulations. 20 CFR §§ 404.1502, 416.902. 28 Page 18 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 19 of 26 1 Thus, the ALJ is not permitted to credit this statement over that of a treating physician, 2 without – at the very least – an explanation. 20 CFR §§ 404.1527, 416.927. 3 4 Further, throughout the opinion the ALJ mentions the "80% improvement of 5 Plaintiff’s pain" and uses it to discount several treating physician opinions. T 25, 29. 6 This statement is missing important context. Plaintiff had a cervical epidural steroid 7 8 injection on January 31, 2012. T 363-364. On February 23, 2012 she followed up with 9 Dr. Patel. T 365. At this appointment she stated the injection helped 80%, and currently 10 (three weeks later) her pain was 30% better. T 365. In other words, the injection 11 temporarily helped, and within only three weeks it was helping only 30%. At this 12 13 appointment she still rated her pain as a 5/10 even with the relief that the injection gave 14 her. T 365. About two months later, on April 30, 2012, at an appointment with Dr. Foote 15 he noted a decrease in rotation of her neck, and pain with passive range of motion of her 16 17 left shoulder and hip. T 486. In other words, the relief was temporary, and not indicative 18 of her ability to perform work on an ongoing basis as required by SSR 96-8p. 19 The Ninth Circuit has found this reasoning for discounting a treating physician 20 21 opinion improper when the check box form is, as here, supported by other notes, 22 opinions, and testing. Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014). 23 Specifically, the court in Garrison held 24 25 In evaluating Wang’s testimony, the ALJ committed a variety of egregious and important errors: (1) she entirely ignored most of his 26 treatment records, including reports from Dr. Feldman, dozens of medical 27 test results, and Wang’s own treatment notes; (2) she failed to recognize that the opinions expressed in check-box form in the February 2008 PFC 28 questionnaire were based on significant experience with Garrison and Page 19 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 20 of 26 1 supported by numerous records and were therefore entitled to weight that 2 an otherwise unsupported and unexplained check-box form would not merit; (3) she did not explicitly compare Wang’s records to other medical 3 evidence-and therefore failed to recognize that no other treating or 4 examining physician disagreed with Wang, and that Griffith, the consultant whose views differed from Wang’s, wrote his check-box report early in 5 November 2007, very early in Garrison’s course of treatment, and admitted 6 in his report that he lacked access to Garrison’s treatment records and statements; (4) she did not evaluate Wang’s records for internal consistency 7 or inconsistency in his description of Garrison’s symptoms, an evaluation 8 that would have disclosed consistent reports of burning, tingling, and numbness radiating from her back and neck into her extremities, causing 9 weakness and intense pain; (5) she did not recognize that because Wang is a specialist, his opinion is owed greater weight as a matter of regulation; (6) 10 more generally, she failed to afford the deference to which Wang was 11 presumptively entitled under both Social Security regulations and out precedent as Garrison’s treating physician; and (7) she manufactures a 12 conflict with respect to the outcome of treatment by asserting that Wang’s 13 records showed consistent improvement, when in fact they show consistent cervical and lumbar radiculopathy that responded only very briefly and 14 partially to treatment. 15 Id. 16 17 This case is almost identical to Garrison. As in Garrison, all of the other treating 18 physician opinions support Dr. DiGiacinto’s opinion, and there is no real controversy. 19 Dr. Foote’s opinion, examined at length in argument 1, was that Plaintiff cannot return to 20 21 work due to ongoing pain with activity. T 500. On December 17, 2015, Nurse 22 Practitioner Young opined that Plaintiff could never lift with her left hand and 23 occasionally lift up to five pounds with her right. T 530. She can stand/walk for one 24 25 hour total in an eight hour day and sit for 30 minutes total in an eight hour day. T 530. 26 She also is unable to climb, balance, stoop, and crouch, and can occasionally bend, kneel, 27 and crawl. T 531. She also opined handling and environmental limitations. T 531. 28 Page 20 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 21 of 26 1 The only treating physician opinion that is not disabling on its face is Dr. Moher’s 2 opinion. On September 9, 2013, Dr. Moher opined that Plaintiff cannot sit more than one 3 4 hour at a time and no more than four hours per day; stand no more than 15 minutes at one 5 time and no more than four hours per day; walk no more than 15 minutes at one time and 6 no more than two hours per day; cannot lift or carry more than 10 pounds, and her 7 8 concentration/persistence may be limited secondary to pain and fatigue. T 413. Dr. 9 Moher’s opinion was afforded "partial weight," because it was provided relatively early 10 in the record and "the opinions expressed are more restrictive than those supported by the 11 totality of the record." T 27. These opinions show that all of the treating physicians in the 12 13 record support limitations similar to Dr. DiGiacinto’s. Further, the only opinion that does 14 not include disabling limitations is one that the ALJ acknowledges was provided early in 15 the treatment period. These opinions also show that contrary to the ALJ’s assertion, 16 17 Plaintiff’s impairments tended to worsen over time, rather than get better. 18 Also, as in point (5) of Garrison (759 F.3d 1013), here the ALJ also did not 19 consider the fact that Dr. DiGiacinto is a specialist in neurosurgery. T 555. Not only is 20 21 he a neurosurgeon, but he is the Vice Chairman of the Department of Neurosurgery at 22 Mount Sinai Roosevelt, which makes his opinion even more valuable. T 555. It was 23 error for the ALJ to fail to consider this as the opinion deserved more weight "as a matter 24 25 of regulation". Garrison, 759 F.3d 1013; See 20 C.F.R. §§ 404.1527(c)(2)-(6); 26 416.927(c)(2)-(6). 27 28 Page 21 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 22 of 26 1 Therefore, as this opinion makes many of the mistakes in weighing a treating 2 specialist’s opinion as in Garrison, this case should also be remanded for an award of 3 4 benefits. 5 3. The ALJ’s adverse credibility determination failed to provide clear and 6 convincing reasons for discounting Plaintiff’s testimony regarding functional limitations stemming from her impairments. 7 8 "The ALJ can reject the claimant’s testimony about the severity of her 9 symptoms only by offering specific, clear and convincing reasons for doing so." 10 11 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). See also Burrell v. Colvin, 775 12 F.3d 1133, 1136—37 (9th Cir. 2014). SSA regulations provide consideration of 13 several factors in making this judgment, including work record and "observations of 14 15 treating and examining physicians and other third parties regarding, among other 16 matters, the nature, onset, duration, and frequency of the symptom; precipitating and 17 aggravating factors; functional restrictions caused by the symptoms; and the 18 19 claimant’s daily activities." Smolen, 80 F. 3d at 1284. In addition to those factors, the 20 ALJ’s credibility determination "must consider the entire case record, including the 21 objective medical evidence, the individual’s own statements about symptoms, 22 statements and other information provided by treating or examining physicians or 23 24 psychologists and other persons about the symptoms and how they affect the 25 individual, and any other relevant evidence in the case record. An individual’s 26 statements about the intensity and persistence of pain or other symptoms and how 27 28 they affect the individual, and any other relevant evidence in the case record. An Page 22 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 23 of 26 1 individual’s statements about the intensity and persistence of pain or other symptoms 2 or about the effect of the symptoms have on his or her ability to work may not be 3 4 disregarded solely because they are not substantiated by objective medical evidence." 5 SSR 96-7p (in place at the time of application.) The ALJ errs where he "simply 6 stated her non-credibility conclusion and then summarized the medical evidence 7 8 supporting her RFC determination. This is not the sort of explanation or the kind of 9'specific reasons’ we must have in order to review the ALJ’s decision meaningfully." 10 Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). The ALJ should also 11 consider the claimant’s admirable work history when adjudicating claims. See Poe v. 12 13 Astrue, No. CV 08-402-TUC-JMR-DTF, 2009 U.S. Dist. LEXIS 94036, at *38–39 14 (D. Ariz. June 26, 2009) (citing Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 15 1983)). See also SSR 96-7p (superseded by SSR 16-03p, effective March 2016) (ALJ 16 17 should consider work history). 18 While activities of daily living may be considered, many activities of daily living 19 may not transfer to a "work environment where it might be impossible to rest periodically 20 21 or take medication." See Smolen, 80 F. 3d at 1284, n. 7; Vertigan v. Halter, 260 F.3d 22 1044, 1050 (9th Cir. 2001). Additionally, the claimant need not be bed-ridden or 23 "completely incapacitated" to qualify for benefits. Orn, 495 F. 3d at 639; Vertigan, 260 24 25 F.3d at 1050. 26 Here, the ALJ states that: 27 [T]he claimant’s statements concerning the intensity, persistence and limiting 28 effects of these symptoms are partially credible for the reasons explained in this decision. Page 23 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 24 of 26 1 While the objective evidence discussed below supports certain physical limitations that 2 resulted from the established spinal issues, injections and other conservative measures reportedly have proven to provide up to 80 percent relief at times. Multiple objective 3 findings in the record show left arm and leg strength to be 4/5 minimum. At various 4 times, range of motion in the left shoulder/upper extremity was found to be full as well. 5 T 24. 6 In this case, the ALJ fails to follow the regulations codified in SSR 96-7p that 7 prohibits adverse credibility determinations solely because of a lack of objective medical 8 evidence. The ALJ also once again stated that Plaintiff’s pain relief was up to 80%, but 9 fails to mention again that that pain relief was temporary and only lasted a few weeks at 10 11 most. T 365; See argument 2, supra, for full explanation. 12 The ALJ also makes no effort to consider the positive impact of her admirable 13 work history of consistent employment for several decades (with the minor exception of 14 15 2003) leading up to her AOD. T 203. The ALJ’s failure to consider this evidence was 16 error. See Poe v. Astrue, No. CV 08-402 TUC JMR (DTF), 2009 WL 2485994, at *14 17 (D. Ariz. August 12, 2009) (citing Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 18 19 1983)). Therefore, the ALJ impermissibly discounted Plaintiff’s testimony of subjective 20 symptoms and under the credit-as-true rule, this case should be remanded for calculation 21 of benefits. The Ninth Circuit has held that if a Plaintiff meets the three part credit-as-22 23 true standard, a case should be remanded to an ALJ with instructions to calculate and 24 award benefits. Garrison, 759 F.3d 995, 1021 (9th Cir. 2014). The three requirements 25 are: 1) the record has been fully developed and further administrative proceedings would 26 27 serve no useful purpose; 2) the ALJ has failed to provide legally sufficient reasons for 28 rejecting evidence, whether claimant testimony or medical opinion; and 3) if the Page 24 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 25 of 26 1 improperly discredited evidence were credited as true, the ALJ would be required to find 2 the Plaintiff disabled on remand. Id. The Ninth Circuit has also held that it is an abuse of 3 4 discretion for a district court not to remand for an award of benefits when all of these 5 conditions are met. Id. (collecting cases). 6 Here, the credit-as-true rule is met not only regarding Plaintiff’s credibility, but also 7 8 Dr. Foote and Dr. DiGiacinto’s opinion as well. The arguments above detail the ways the 9 ALJ’s findings are legally insufficient, and as the record contains essentially a consensus 10 that Plaintiff is disabled from several treating sources, no further development of the 11 record is required. Finally, Dr. Foote’s opinion, Dr. DiGiacinto’s opinion, and Plaintiff’s 12 13 testimony would on their face require a finding of disability if credited as true. Thus, 14 Plaintiff meets the three-part test for each of these arguments and this case should be 15 remanded for calculation of benefits. 16 17 V. CONCLUSION 18 For the foregoing reasons, it is respectfully requested that the matter be remanded 19 for calculation of benefits. 20 21 Date: November 17, 2017 Respectfully submitted, 22/s/Edward A. Wicklund Edward A. Wicklund 23 Admitted Pro Hac Vice 24 Olinsky Law Group One Park Place 25 300 South State Street 26 Suite 420 Syracuse, NY 13202 27 NY State Bar No. 2044865 28 Telephone: (315) 701-5780 twicklund@windisability.com Page 25 Case 4:17-cv-00296-EJM Document 13 Filed 11/17/17 Page 26 of 26 1 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 2 3 Terry Orsburn, 4 5 Plaintiff, 6 Civil No. CV-17-00296-TUC-EJM vs. 7 Nancy A. Berryhill, 8 9 Acting Commissioner of Social 10 Security, 11 12 13 Defendant 14 15 16 Certificate of Service 17 This is to certify that I have this day served counsel for the Defendant 18 with Plaintiff’s Brief by electronically filing the foregoing with the Clerk of the 19 Court by using the CM/ECF system which will send electronic notification of such 20 filing to: 21 JEFFREY R. MCCLAIN 22 Special Assistant United States Attorney 23 24 25 This 17th day of November 2017. 26/s/Edward A. Wicklund 27 Edward A. Wicklund 28 Page 26

RESPONSE BRIEF by Commissioner of Social Security Administration.

2 1 Elizabeth A. Strange First Assistant United States Attorney 2 District of Arizona 3 Jeffrey R. McClain 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA43009 8 Fax: (206) 615-2531 jeffrey.mcclain@ssa.gov 9 Telephone: (206) 615-2945 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Terry Orsburn, 14 No. CV-17-00296-TUC-EJM 15 Plaintiff, 16 DEFENDANT'S BRIEF vs. 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 STATEMENT OF THE ISSUES 22 I. Whether the ALJ reasonably weighed the medical opinion evidence; 23 II. Whether the ALJ reasonably weighed Plaintiff's symptom testimony; and 24 25 III. If the ALJ harmfully erred, whether a remand for further proceedings or for 26 payment of benefits is the appropriate remedy. 27 /// 28 2 1 STATEMENT OF THE CASE 2 Terry Orsburn (Plaintiff) seeks judicial review of the final administrative decision 3 of the Acting Commissioner of Social Security (Commissioner) (Tr. 19-32) denying her 4 5 application for a period of disability, disability insurance, and Supplemental Security 6 Income benefits. 42 U.S.C. §§ 405(g), 1383(c)(3). The final decision of the 7 Commissioner should be affirmed because it is supported by substantial evidence and 8 free of harmful legal error. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). 9 10 ARGUMENT 11 I. The ALJ reasonably weighed the medical opinion evidence. 12 A. Robert A. Foote, M.D. 13 14 The ALJ considered Dr. Foote's medical records in formulating the residual 15 functional capacity finding (Tr. 25-26). The ALJ discussed Plaintiff's April 2012 visit 16 with Dr. Foote, where Dr. Foote observed some decreased range of motion in Plaintiff's 17 18 neck, with otherwise normal range of motion in the cervical spine, and some reported 19 pain on passive range of motion testing (Tr. 26, 486, 490). Dr. Foote also stated that, 20 although Plaintiff showed some give-way weakness on muscle testing, he did not believe 21 Plaintiff had any "true weakness" (Tr. 26, 486, 490). The ALJ also noted Dr. Foote's 22 23 analysis of a May 2012 EMG study, with the primary finding of mild carpal tunnel 24 syndrome in the left upper extremity (Tr. 26, 394). The ALJ found Plaintiff could 25 perform only light work with additional non-exertional restrictions (Tr. 23). These 26 27 records were consistent with the ALJ's residual functional capacity finding. 28 2 2 1 The ALJ did not discuss a check-box form Dr. Foote completed concerning 2 Plaintiff's impairments in May 2012 (Tr. 499-500). In that form, Dr. Foote concluded 3 that Plaintiff had a 5% temporary impairment based on her conditions, and that this 4 5 limitation would last for an "unknown period of time" (Tr. 500). Dr. Foote did not 6 believe Plaintiff could return to work as a stage hand at the metropolitan opera (Tr. 500). 7 Even though the ALJ did not discuss this form, it does not meaningfully add to the 8 treatment records from Dr. Foote that the ALJ did discuss, or contradict the ALJ's 9 10 conclusions. The generic 5% restriction put forward by Dr. Foote was based on the mild 11 carpal tunnel that the ALJ evaluated when rendering the residual functional capacity 12 finding, and which contributed to the ALJ's limitation of Plaintiff to a reduced range of 13 14 light work (Tr. 26, 394, 500). The ALJ also found, consistent with Dr. Foote's opinion, 15 that Plaintiff was incapable of working as a stage hand (Tr. 30, 500). The ALJ's 16 discussion of the records from Dr. Foote adequately accounted for his opinions regarding 17 18 Plaintiff's functional limitations. 19 Plaintiff argues that the ALJ erred by not explicitly weighing Dr. Foote's May 20 2012 opinion (Pl.'s Br. at 11-14). Even if the ALJ erred by not weighing Dr. Foote's 21 May 2012 opinion, such error should be found harmless. Errors are harmless where they 22 23 are "inconsequential to the ultimate nondisability determination." Molina v. Astrue, 674 24 F.3d 1104, 1115 (9th Cir. 2012). As discussed, Dr. Foote's opinion that Plaintiff was 5% 25 limited does not contradict the ALJ's residual functional capacity finding. In fact, the 26 27 ALJ's restriction of Plaintiff to a reduced range of light work represents a greater than 28 5% restriction in functioning. Dr. Foote's belief that Plaintiff would be unable to perform 3 2 1 her past work as a stage hand was also consistent with the ALJ's decision. Because Dr. 2 Foote's conclusions were consistent with the ALJ's decision, any error in not weighing 3 the May 2012 opinion was harmless. 4 5 Plaintiff argues that Dr. Foote clarified on "another page. . . that the 5% is in 6 addition to the 60% disability that was already in place by Plaintiff's treating physician 7 Dr. Barron" (Pl.'s Br. at 13). In support of this claim, Plaintiff cites to a handwritten note 8 on a facsimile transmittal sheet from what appears to be a law firm representing Plaintiff 9 10 in her worker's compensation claim (Tr. 495). The handwritten note stated that "Dr. 11 Foote supports the 60% disability already in place by Dr. Arton [sic] Barron in New 12 York. The 5% is in addition" (Tr. 495). This was not medical evidence, and contains no 13 14 support in Dr. Foote's actual opinion (Tr. 499-500). Elsewhere in the record, in fact, 15 Plaintiff reported her doctors told her she had a "5% disability" (Tr. 290). Dr. Foote's 16 opinion should be evaluated based on what it actually says. Moreover, even if Dr. Foote 17 18 believed Plaintiff had a 65% restriction, the ALJ found Plaintiff capable of performing a 19 number of sedentary occupations at step five (Tr. 31). A 65% restriction is consistent 20 with the ALJ's finding regarding those jobs. Dr. Foote's records do not provide a basis 21 for reversing the ALJ's decision. 22 23 B. George DiGiacinto, M.D. 24 In 2011 and 2012, Dr. DiGiacinto treated Plaintiff after she experienced a 25 workplace injury (Tr. 28-29, 555). Plaintiff visited Dr. DiGiacinto again in August 2015; 26 27 Dr. DiGiacinto conducted a physical examination, drafted a letter regarding the treatment 28 visit, and a few months later completed a check-box form regarding Plaintiff's 4 2 1 functioning (Tr. 28-29, 527-529, 555). In his letter, Dr. DiGiacinto described some 2 examination findings and stated Plaintiff had a "permanent marked partial disability" (Tr. 3 29, 555). In the checkbox form, Dr. DiGiacinto described very significant physical 4 5 limitations, including a limitation to less than sedentary work (Tr. 28-29, 529). The ALJ 6 considered both opinions and gave them "little weight" (Tr. 28-29). "If a treating or 7 examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only 8 reject it by providing specific and legitimate reasons that are supported by substantial 9 10 evidence." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). These opinions 11 were in conflict with, for example, the opinions of the State agency doctors (Tr. 29-30). 12 The ALJ was therefore required to, and did, offer specific and legitimate reasons to reject 13 14 Dr. DiGiacinto's conclusions. 15 Regarding the checkbox worksheet, the ALJ noted that the opinion was conclusory 16 and provided little explanation regarding the stated opinions (Tr. 29). Opinions given in 17 18 formats which provide little opportunity for the physician to explain the bases of their 19 opinion are entitled to little weight. Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996). 20 The relative lack of explanation for Dr. DiGiacinto's conclusions was a valid basis to 21 reject them. 22 23 The ALJ also stated the opinion was "inconsistent with the entirety of the record, 24 including those records reporting improvements from conservative measures like 25 medication and injections and physical therapy" (Tr. 29). An ALJ "may discredit treating 26 27 physicians' opinions that are conclusory, brief, and unsupported by the record as a 28 whole." Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 5 2 1 Indeed, Plaintiff reported that injections provided up to 80% relief (Tr. 24, 27, 365, 388- 2 389). In August 2012, Plaintiff reported that injections controlled her left arm symptoms 3 "very well" (Tr. 26, 277). When Plaintiff saw Dr. Foote in 2012, he noted she was 4 5 undergoing physical therapy, injections, and wanted to resume acupuncture treatments 6 (Tr. 25, 485). As discussed, Dr. Foote observed only some decreased range of motion in 7 Plaintiff's neck, with otherwise normal range of motion in the cervical spine, and some 8 reported pain on passive range of motion testing (Tr. 26, 486, 490). Dr. Foote also did 9 10 not believe Plaintiff had any "true weakness" (Tr. 26, 486, 490). Substantial evidence 11 supported the ALJ's conclusion that the entirety of the record, including Plaintiff's 12 response to treatment, were contrary to Dr. DiGiacinto's checkbox opinion. 13 14 The ALJ rejected Dr. DiGiacinto's August 2015 letter opinion for the same 15 reasons she rejected the checkbox opinion (Tr. 29). In addition, the ALJ noted the 16 cervical range of motion testing documented by Dr. DiGiciacinto was in conflict with 17 18 other range of motion testing present in the record (Tr. 29). Dr. Foote, for exapmle, 19 noted only some range of motion issues during his examination (Tr. 26, 490). Earlier 20 records also documented Plaintiff's improvement in her gait sequence, the elimination of 21 her left foot drop, and a decrease in lower back and left lower extremity pain (Tr. 29, 22 23 279). This evidence provided a specific and legitimate basis for rejecting the conclusions 24 in Dr. DiGiacinto's August 2015 letter. 25 Plaintiff argues the ALJ erred in rejecting the checkbox opinion for being 26 27 conclusory and unexplained because Dr. DiGiacinto "included a narrative letter that 28 explained why Dr. DiGiacinto gave the opinions he did" (Pl.'s Br. at 17). The letter, 6 2 1 however, was written about two months prior to Dr. DiGiacinto filling out the checkbox 2 form. It could not, therefore, have commented directly on the contents of the checkbox 3 opinion. The ALJ did not err by noting the checkbox form provided little room to 4 5 explain Dr. DiGiacinto's opinion. 6 Plaintiff also argues the medical record does not document improvement with 7 Plaintiff's condition, and that, instead, Plaintiff had significant variations in her 8 functioning that the ALJ ignored (Pl.'s Br. at 17-20). The ALJ, however, noted Plaintiff 9 10 experienced variations in her clinical presentation (Tr. 26) (relating a treatment visit 11 documenting that Plaintiff's "[c]ervical and lumbar spine active ROM testing and the 12 corresponding pain varied widely from treatment to treatment"). This does not discount 13 14 the substantial evidence relied on by the ALJ showing that her conditions responded to 15 treatment. Moreover, Dr. DiGiacinto himself noted Plaintiff had "not reached maximum 16 medical improvement and merits further treatment" (Tr. 555). 17 18 Plaintiff further contends that Dr. DiGiacinto's opinion was consistent with other 19 medical opinions in the record (Pl.'s Br. at 20-21). Plaintiff, here, offers a competing 20 interpretation of the record that does not establish the ALJ's conclusions were 21 unreasonable. See Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1985) ("If the evidence 22 23 admits of more than one rational interpretation, we must uphold the decision of the 24 ALJ"). Because the ALJ's interpretation of the medical opinion evidence was 25 reasonable, it should be upheld. 26 27 Lastly, Plaintiff argues the ALJ ignored the fact that Dr. DiGiacinto was a 28 neurosurgeon (Pl.'s Br. at 21). Although the ALJ did not mention Dr. DiGiacinto's 7 2 1 specialty, she did recognize that Dr. DiGiacinto was a treating physician. Even if the 2 ALJ erred by not discussing this factor, such error should be held harmless because of the 3 specific and legitimate reasons offered to reject Dr. DiGiacinto's conclusions. 4 5 II. The ALJ reasonably weighed the credibility of Plaintiff's subjective complaints. 6 The ALJ found Plaintiff's subjective statements not credible (Tr. 24). Rejection of 7 claimant's testimony generally requires clear and convincing reasons in the absence of 8 evidence of malingering. Valentine v. Comm'r, 574 F.3d 685, 693 (9th Cir. 2009).1 A 9 10 claimant's alternative interpretation of the evidence does not alone invalidate an ALJ's 11 credibility finding. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing Fair 12 v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989)). "If the ALJ's credibility finding is 13 14 supported by substantial evidence in the record, we [the reviewing court] may not engage 15 in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). The ALJ's 16 credibility finding was supported by substantial evidence and should be upheld. 17 18 The ALJ noted that objective findings did not support the degree of limitation 19 Plaintiff alleged (Tr. 24). "While subjective pain testimony cannot be rejected on the sole 20 ground that it is not fully corroborated by objective medical evidence, the medical 21 evidence is still a relevant factor in determining the severity of the claimant's pain and its 22 23 disabling effects." Rollins, 261 F.3d at 857. As the ALJ noted, objective findings 24 showed Plaintiff's left arm and leg strength to be at 4/5 (Tr. 24, 400, 404). Plaintiff also 25 26 27 1 The Commissioner disagrees with the clear and convincing standard as it is contrary to 28 the substantial evidence standard articulated in 42 U.S.C. 405(g). 8 2 1 hard full range of motion in her shoulder, as well as some decreased range of motion in 2 her neck, with otherwise normal range of motion in the cervical spine, and some reported 3 pain on passive range of motion testing (Tr. 24, 26, 486, 490). Dr. Foote also did not 4 5 believe Plaintiff had any "true weakness" (Tr. 26, 486, 490). The ALJ reasonably 6 weighed the objective medical record against Plaintiff's claims, in conjunction with the 7 other reasoning offered. 8 Plaintiff also had positive responses to treatment (Tr. 24). The effectiveness of 9 10 treatment is a relevant factor in determining the severity of a claimant's symptoms. 20 11 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). Plaintiff reported that injections provided up to 12 80% relief, and that they controlled her left arm symptoms "very well" (Tr. 24, 27, 277, 13 14 365, 388-389). When Plaintiff saw Dr. Foote in 2012, he noted she was undergoing 15 physical therapy, injections, and wanted to resume acupuncture treatments (Tr. 25, 485). 16 As discussed above, Dr. Foote's examination findings were relatively benign (Tr. 26, 17 18 486, 490). Plaintiff's favorable response to treatment was a valid basis for finding her 19 not credible. 20 Plaintiff argues that the ALJ provided only one reason for finding her not credible, 21 namely that her complaints were not supported by objective findings (Pl.'s Br. at 24). 22 23 Had the ALJ offered only that reason, she would have committed legal error, because 24 objective findings cannot be the sole grounds in support of a credibility finding. Rollins, 25 261 F.3d at 857. Because the ALJ also relied on her favorable response to treatment in 26 27 finding her not credible, however, the ALJ's reasoning was sound. 28 9 2 1 Plaintiff also argues the ALJ erred by not considering "the positive impact of her 2 admirable work history of consistent employment for several decades" (Pl.'s Br. at 24). 3 Contrary to this argument, the ALJ was well aware of Plaintiff's work history (e.g. Tr. 4 5 30) (discussing Plaintiff's work as a stage hand and production coordinator). The fact 6 that the ALJ did not specifically discuss Plaintiff's work history in the credibility finding 7 does not mean the ALJ did not consider it. See Lockwood v. Comm'r Soc. Sec. Admin., 8 616 F.3d 1068, 1072 (9th Cir. 2010); accord SSR 06-03p, available at 2006 WL 9 10 2329939, at *6 (". . . there is a distinction between what an adjudicator must consider and 11 what the adjudicator must explain in the disability determination or decision. . ."). Even 12 if the ALJ erred in not discussing this factor, such error should be held harmless in light 13 14 of the other, valid reasons offered by the ALJ. Carmickle v. Comm'r, Soc. Sec. Admin., 15 533 F.3d 1155, 1162 (9th Cir. 2008). The credibility finding should be upheld. 16 III. If the ALJ harmfully erred, a remand for further proceedings is the appropriate 17 remedy. 18 Plaintiff invites the Court to remand this case for a finding of disability (Pl.'s Br. 19 at 24-25). The "ordinary remand rule" requires that, where an ALJ's error prejudices a 20 21 claimant, the proper course is to remand for further administrative proceedings "except in 22 rare circumstances." Treichler v. Comm'r of Social Sec. Admin., 775 F.3d 1090, 1099 23 (9th Cir. 2014). Further, this court must apply a three-part test, known as the credit-as- 24 25 true rule, before ordering an immediate award of disability benefits. Leon v. Berryhill, 26 874 F.3d 1130, 1132-33 (9th Cir. Nov. 7, 2017). Plaintiff has made no effort to establish 27 the rare circumstances necessary for a deviation from the ordinary remand rule. 28 10 2 1 Accordingly, even if there were an error in this case that prejudiced Plaintiff (and there is 2 not), the only appropriate remedy would be to remand for further proceedings. 3 Outstanding evidentiary conflicts in the record remain, including those created by the 4 5 State agency doctors, Dr. Foote, the objective medical record, and Plaintiff's treatment 6 history. 7 CONCLUSION 8 The ALJ's decision was supported by substantial evidence and free of harmful 9 10 legal error. It should be affirmed. 11 DATED this 18th day of December 2017. 12 Respectfully submitted, 13 14 ELIZABETH A. STRANGE First Assistant United States Attorney 15 District of Arizona 16 s/ Jeffrey R. McClain 17 JEFFREY R. MCCLAIN 18 Special Assistant United States Attorney 19 Of Counsel for the Defendant: 20 21 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 22 Office of the General Counsel, Region X 23 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 24 25 26 27 28 11 2 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Defendant's Brief was filed with the Clerk 3 of the Court on December 18, 2017, using the CM/ECF system, which will send 4 5 notification of such filing to the following: Edward Allen Wicklund. 6 7 s/ Jeffrey R. McClain JEFFREY R. MCCLAIN 8 Special Assistant U.S. Attorney 9 Office of the General Counsel 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

REPLY BRIEF by Terry Orsburn Reply Brief in Support of Social Security Appeal.

1 Edward A. Wicklund 2 Admitted Pro Hac Vice Olinsky Law Group 3 300 South State Street, Suite 420 4 Syracuse, NY 13202 NY State Bar No. 2044865 5 Telephone: (315) 701-5780 6 Facsimile: (315) 701-5781 twicklund@windisability.com 7 Attorney for Plaintiff Terry Orsburn 8 IN THE UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 Terry Orsburn, 11 Plaintiff, 12 Civil No. CV-17-00296-TUC-EJM 13 vs. 14 Nancy A. Berryhill, PLAINTIFF'S REPLY BRIEF 15 Acting Commissioner of Social 16 Security, 17 Defendant 18 PLAINTIFF'S REPLY BRIEF 19 IN SUPPORT OF A SOCIAL SECURITY APPEAL 20 Plaintiff relies on and reasserts the arguments made in her opening Memorandum 21 of Law and addresses the following particular points in response to Defendant's 22 23 Memorandum in Support of the Commissioner's Decision. 24 1. The ALJ failed to properly evaluate and weigh medical evidence from a 25 treating physician, thus prejudicing Plaintiff and requiring remand. 26 Much of Defendant's response to Plaintiff's first argument attempts to undermine 27 the ALJ's clear error by pointing to irrelevant aspects of Dr. Foote's other treatment notes 28 Page 1 1 in relation to the ALJ's determination. D. Brief 2-4. Defendant spends the majority of a 2 page rewriting the ALJ's decision on pages 25 and 26, then discusses percentages for the 3 4 rest of her counter argument. Id. Yet slipped in between the numerous attempts to 5 discredit Dr. Foote's medical opinion, Defendant admits the ALJ's error, stating "the ALJ 6 did not discuss a check-box form Dr. Foote completed concerning Plaintiff's impairments 7 8 in May 2012." D. Brief 3; see T 500. 9 Regardless of Defendant's attempt to diminish the importance of this document by 10 referring to it simple as a "check-box form," it still is a medical opinion from an 11 acceptable medical source that the ALJ was bound under SSA regulations to address in a 12 13 specific manner. See 20 C.F.R. §§ 404.1527(b)-(c), 416.927(b)-(c)("Regardless of its 14 source, we will evaluate every medical opinion we receive). See also Shafer v. Astrue, 15 518 F.3d 1067, 1069 (9th Cir. 2008)(noting the ALJ contravened governing regulations 16 17 when he disregarded, without explanation or further development of the record, a portion 18 of an medical opinion)(emphasis added). Thus, Defendant's numerous references to the 19 ALJ's discussion of Dr. Foote's other treatment notes, and her analysis on percentages, 20 21 largely distracts from the core issue at hand, the ALJ's clear procedural error. The issue 22 for this court is determining whether such an error is harmful and prejudicial to Plaintiff, 23 as to warrant remand. 24 25 The Defendant argues the ALJ's error is harmless because it does not contradict 26 the ALJ's RFC. D. Brief 3. In support of this contention, Defendant notes "Errors are 27 harmless where they are 'inconsequential to the ultimate nondisability determination.'" 28 Page 2 1 Id (quoting Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)). However, Defendant 2 quoting Molina v. Astrue misuses the harmless error precedent, as Molina pertains to 3 4 harmless error in failing to discuss duplicative lay witness testimony, rather than medical 5 opinion evidence from a treating physician. See Molina, 674 F.3d at 1122. The proper 6 standard falls under the precedent set forth by Marsh v. Colvin, which holds "where the 7 8 circumstances of the case show a substantial likelihood of prejudice, remand is 9 appropriate…" See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015)(quoting 10 McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011)). Thus, contrary to Defendant's 11 position, this Circuit's precedent does not show harmless error by showing the omitted 12 13 opinion was un-contradicted by the ALJ's RFC or the ultimate nondisability 14 determination. Rather, Marsh holds that an error is harmful when it clearly prejudices a 15 claimant in the proceedings, and that when harmlessness is clear and not a borderline 16 17 question, remand is not appropriate. Id. Marsh further explains that the more serious the 18 ALJ's error, the more difficult it should be to show the error was harmless. Id. 19 As noted, the ALJ was bound under SSA regulations to address Dr. Foote's in a 20 21 specific manner. See 20 C.F.R. §§ 404.1527(b)-(c), 416.927(b)-(c)("Regardless of its 22 source, we will evaluate every medical opinion we receive). Dr. Foote's opinion 23 indicated Plaintiff was disabled; the degree is irrelevant because the ALJ completely 24 25 failed to even discuss how it affected his determination. T 500. The ALJ's failure to 26 properly consider, discuss, and weigh Dr. Foote's medical opinion, is prejudicial and 27 harmful because it completely allowed the ALJ to ignore medical evidence that supported 28 Page 3 1 Plaintiff's application for disability. When the ALJ ignores significant and probative 2 evidence in the record favorable to a claimant's position, the ALJ thereby provides an 3 4 incomplete residual functional capacity determination. See Hill v. Astrue, 698 F.3d 1153, 5 1161 (9th Cir. 2012). Because the ALJ did not mention Dr. Foote's opinion that Plaintiff 6 was disabled, this Court cannot "confidently conclude" that the error was harmless, and 7 8 remand is appropriate. See Marsh, 792 F.3d at 1173. 9 CONCLUSION 10 For the foregoing reasons, it is respectfully requested that the final agency 11 decision be vacated and that this matter be remanded for further administrative 12 13 proceedings, including, but not limited to, a de novo administrative hearing and ALJ 14 decision before a different ALJ. the matter be remanded for calculation of benefits. 15 Date: January 2, 2018 Respectfully submitted, 16 /s/ Edward A. Wicklund 17 Edward A. Wicklund 18 Admitted Pro Hac Vice Olinsky Law Group 19 One Park Place 20 300 South State Street Suite 420 21 Syracuse, NY 13202 22 NY State Bar No. 2044865 Telephone: (315) 701-5780 23 twicklund@windisability.com 24 25 26 27 28 Page 4 1 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 2 3 Terry Orsburn, 4 5 Plaintiff, 6 Civil No. CV-17-00296-TUC-EJM vs. 7 Nancy A. Berryhill, 8 9 Acting Commissioner of Social 10 Security, 11 12 13 Defendant 14 15 16 Certificate of Service 17 This is to certify that I have this day served counsel for the Defendant 18 with Plaintiff's Brief by electronically filing the foregoing with the Clerk of the 19 Court by using the CM/ECF system which will send electronic notification of such 20 filing to: 21 JEFFREY R. MCCLAIN 22 Special Assistant United States Attorney 23 24 25 This 2nd day of January 2018. 26 /s/ Edward A. Wicklund 27 Edward A. Wicklund 28 Page 5

Order

3 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Terry Orsburn, No. CV-17-00296-TUC-EJM 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 Plaintiff Terry Orsburn ("Orsburn") brought this action pursuant to 42 U.S.C. § 17 405(g) seeking judicial review of a final decision by the Commissioner of Social Security 18 ("Commissioner"). Orsburn raises three issues on appeal: 1) the Administrative Law 19 Judge ("ALJ") failed to weigh treating physician Dr. Foote's opinion; 2) the ALJ's 20 residual functional capacity ("RFC") assessment is not supported by substantial evidence 21 because the ALJ failed to follow the treating physician rule; and 3) the ALJ failed to 22 provide clear and convincing reasons for discounting Orsburn's testimony regarding her 23 functional limitations. (Doc. 13). 24 Before the Court are Orsburn's Opening Brief, Defendant's Response, and 25 Orsburn's Reply. (Docs. 13, 14 & 15). The United States Magistrate Judge has received 26 the written consent of both parties and presides over this case pursuant to 28 U.S.C. § 27 636(c) and Rule 73, Federal Rules of Civil Procedure. For the reasons stated below, the 28 Court finds that this matter should be reversed and remanded for further administrative 3 1 proceedings. 2 I. Procedural History 3 Orsburn filed an application for Social Security Disability Insurance and 4 Supplemental Security Income on June 24, 2013. (Administrative Record ("AR") 87). 5 Orsburn alleged disability beginning on October 17, 2011 based on pain in her neck, 6 back, shoulder, hip, and left leg, anxiety, asthma, and migraines. (AR 88). Orsburn's 7 application was denied upon initial review (AR 98) and on reconsideration (AR 128). A 8 hearing was held on January 5, 2016 (AR 59), after which ALJ MaryAnn Lunderman 9 found, at Step Four, that Orsburn was not disabled because she could perform her past 10 relevant work as a production coordinator as generally performed. (AR 30). The ALJ also 11 made an alternative finding at Step Five that Orsburn could perform other work existing 12 in the national economy. (AR 30–31). On April 27, 2017 the Appeals Council denied 13 Orsburn's request to review the ALJ's decision. (AR 1). 14 Orsburn's date last insured ("DLI") for DIB purposes is March 30, 2017. (AR 87). 15 Thus, in order to be eligible for benefits, Orsburn must prove that she was disabled 16 during the time period of her alleged onset date ("AOD") of October 17, 2011 and her 17 DLI of March 30, 2017. 18 II. Factual History 19 Orsburn was born on June 21, 1959, making her 52 at the AOD of her disability. 20 (AR 87). She has past relevant work as a stagehand, production coordinator, and 21 production office manager. (AR 245). 22 A. Treating Physicians 1 23 On February 24, 2011 Orsburn saw Dr. Barron for right shoulder and neck pain 24 after falling at work. (AR 331). On exam she had full ROM right shoulder, strength 5/5, 25 neck tenderness but full ROM, and negative Neer and Hawkin's sign. (AR 332). Dr. 26 Barron assessed sprain and strain of shoulder and upper arm, and recommended PT. (AR 27 332). 28 1 While Orsburn's AOD is October 17, 2011, the Court has reviewed the entirety of the record in this matter, including the records preceding this date. -2- 3 1 On April 7, 2011 Orsburn saw Dr. Barron for upper limb tingling, fatigue, and 2 weakness. (AR 329). On exam she had full ROM right shoulder, strength 5/5, neck 3 tenderness but full ROM, and diminished motion and diffuse tenderness of the cervical 4 spine. Dr. Barron assessed sprain and strain of shoulder and upper arm, and neck sprain 5 and strain. (AR 329). 6 An April 19, 2011 MRI of the cervical spine showed mid and lower cervical 7 degenerative findings with mild canal stenosis and ventral cord flattening at C4/5 and 8 C5/6. (AR 309). An MRI of the thoracic spine showed degenerative findings including 9 right foraminal disc herniation at T2/3 and severe right foraminal narrowing at T3/4. (AR 10 311). 11 A June 6, 2011 letter from Dr. DiGiacinto notes that Orsburn fell at work and had 12 severe pain in her shoulder and lower back, and that she continued to work. (AR 334). 13 Her MRI showed chronic degenerative changes without acute disc herniation. On exam, 14 she had excellent strength in upper and lower extremities and normal reflexes, positive 15 SLR on the left, and minimal percussion tenderness in the intrascapular region. 16 A June 15, 2011 MRI of the lumbar spine showed multilevel disc degeneration 17 and slight retrolisthesis, minimal annular bulge at T12-L1 and mild annular bulge at 18 L1/L2. (AR 305). 19 On June 24, 2011 Orsburn saw Dr. Chapman for lower back, neck, and arm pain. 20 (AR 323). She described her neck pain as dull, aching, throbbing, and sharp, 8/10 on 21 average and 10/10 at worst. Her neck pain radiates into her shoulders and arms and 22 causes numbness. She also has back pain, 9/10 on average, and associated with walking, 23 sitting, and standing. Examination showed normal gait, cervical ROM 50 degrees flexion 24 (normal 50), 40 degrees extension (normal 60), 50 degrees left rotation (80 normal), and 25 50 degrees right rotation (80 normal), bilateral upper extremity strength within normal 26 limits, positive Spurling's test, and normal sensation and reflexes. Dr. Chapman's 27 impression was cervical disc disorder without myelopathy and cervical radiculopathy, 28 and Orsburn received a steroid injection. (AR 324, 341). -3- 3 1 On August 2, 2011 Orsburn saw Dr. Chapman for a follow up. (AR 321). She 2 reported the steroid injection helped 40% for 3 weeks and that currently her pain was 3 25% better. Orsburn rated her pain 7/10 and said the injection reduced the numbness. Dr. 4 Chapman assessed cervical disc disorder without myelopathy and cervical radiculopathy 5 and recommended she take pain medications as needed. 6 A September 8, 2011 letter from Dr. DiGiacinto states that Orsburn was 7 continuing to work but had neck and lower back pain and paresthesias in the hands. (AR 8 333). He recommended chiropractic treatment and acupuncture, and noted she had some 9 improvement from the epidural shot in her neck and recommended a second injection. 10 On September 16, 2011 Orsburn saw Dr. Chapman for a follow up and reported 11 pain with variable intensity, currently 8/10. (AR 344). She described her pain as constant 12 and improved with medications. Dr. Chapman noted she was "doing well for some time 13 and recently had a return of pain." He administered another injection. (AR 345). 14 On September 27, 2011 Orsburn had an evaluation for acupuncture. (AR 347). She 15 reported chronic neck pain radiating to the arms and hands, sometimes 9/10 and usually 16 4/10. Her back pain was 5/10 on average and 8/10 at worst. She also reported left 17 shoulder pain and bilateral knee pain. She received treatments on October 6, October 20, 18 and November 17, 2011, and January 12, 2012. (AR 307, 312, 359, 366). 19 An October 17, 2011 progress report from Dr. Barron opined that Orsburn had a 20 100% temporary impairment and could not return to work. (AR 301). Orsburn reported 21 numbness in her left thigh and tingling in her left arm and hand. (AR 302). On exam she 22 had full ROM in the right shoulder, strength 5/5, neck tenderness but full ROM, and 23 diminished motion and diffuse tenderness in the cervical spine. (AR 302). 24 A November 17, 2011 progress report from Dr. Barron opined that Orsburn had a 25 100% temporary impairment and that she could not return to work because she had too 26 many symptoms. (AR 297). Orsburn reported left neck, shoulder, and lower leg pain. 27 (AR 298). On exam, she had diminished motion and diffuse tenderness in the cervical 28 spine, positive Spurling's maneuver with radiating radicular pain, and weakness. (AR -4- 3 1 298). 2 On December 15, 2011 Orsburn saw Dr. Chapman and reported pain 9/10 in her 3 neck, back, and arms, and numbness in her left arm and leg. (AR 319). She stated 4 acupuncture helped with the pain but not the numbness. On exam, the lumbar paraspinal 5 muscle was tender to palpation, negative SLR bilaterally, LE strength 5/5, positive 6 Spurling's test, and normal strength in upper extremities. Dr. Chapman assessed cervical 7 disc disorder without myelopathy, cervical radiculopathy, lumbar disc disorder without 8 myelopathy, and lumbar radiculopathy. (AR 320). 9 On January 12, 2012 Orsburn saw Dr. Chapman for a follow up and reported her 10 pain had worsened. (AR 357). She reported numbness and a burning sensation on the left 11 side of her body, a cringing feeling in her spine, and carrying heavy objects caused a 12 buzzing and itching sensation in her arms, especially the left. 13 On January 31, 2012 Orsburn saw Dr. Chapman for a follow up and reported her 14 pain was constant with the same intensity. (AR 361). Her neck pain was numbing and 15 burning, 8/10, and radiating into the left side of her face and arms. Her back pain was 16 sharp and aching, and aggravated by sitting, standing, and walking. Dr. Chapman noted 17 she had a positive response to the last injection and administered another one. (AR 361– 18 63). 19 On February 23, 2012 Orsburn saw Dr. Chapman and reported the injection helped 20 80% and currently her pain was 30% better and a 5/10. (AR 365). 21 A February 23, 2012 progress report from Dr. Barron states that Orsburn cannot 22 return to work because she is still symptomatic. (AR 293). Orsburn reported tingling in 23 the left side of her body and neck pain. (AR 294). On exam, she had full ROM in her 24 right shoulder and neck, 5/5 strength, neck tenderness, and diminished motion and 25 tenderness in the cervical spine. (AR 294). 26 On April 30, 2012 Orsburn saw Dr. Foote and reported numbness on the left side 27 of her body, itching and burning sensations, twinges, and difficulty lifting her left arm. 28 (AR 485). Findings on exam included: some decrease in neck rotation to the left but -5- 3 1 otherwise normal ROM cervical spine; some give-way on muscle strength testing on the 2 left but no true weakness; diminished but symmetrical tendon reflexes; normal sensory 3 and coordination; normal flexion lumbar spine; and pain with passive ROM of left 4 shoulder and left hip, but motion not limited. (AR 486). Dr. Foote's assessment was that 5 her symptoms indicated neck and left arm pain, back and left hip pain, and headaches. 6 (AR 487). He refilled her prescriptions and recommended PT and acupuncture. 7 On May 7, 2012 Orsburn had a physical therapy evaluation. (AR 284). She 8 complained of thoracic region pain, 9/10, reported the left side of her body felt different 9 and less sensitive, and that she could sit for one hour. The therapist noted that the 10 evaluation findings were mixed because considerable energy was required to keep 11 Orsburn focused. (AR 285). He stated that for the most part, neither cervical nor lumbar 12 spine active ROM testing reproduced her complaints of pain, that results of strength 13 testing on the left side were questionable, and that screening for light touch testing was 14 unreliable because Orsburn flatly stated that her entire left side was different, even before 15 beginning the test. (AR 285). 16 A May 8, 2012 workers' compensation form states that "Dr. Foote continues her 17 off-work status, not taken off work by Dr. Foote." (AR 494). Another workers' 18 compensation form completed by Dr. Foote on May 30, 2012 states that Orsburn has a 19 5% temporary impairment based on the nerve study showing mild carpal tunnel 20 syndrome 2 and that she cannot return to work because of ongoing pain. (AR 500). The 21 fax cover sheet states that "Dr. Foote supports the 60% disability already in place by Dr. 22 Alton Barron in New York. The 5% is in addition." (AR 495). 23 On August 3, 2012 Orsburn saw Dr. Ibrahimi for left side numbness and 24 weakness, headaches, and back pain. (AR 399). Findings on exam included neck supple 25 with full ROM, strength 4/5 left arm and leg, left foot drop 4/5 with weakness with 26 inversion and eversion, reduced sensation left shoulder and calf, reflexes bilaterally 27 2 A May 29, 2012 needle exam showed mild carpal tunnel in the left upper extremity, and 28 the left lower extremity was normal with the exception of absent tibial H-reflex. (AR 394). -6- 3 1 symmetrical, and gait leaning to left side. (AR 400). Dr. Ibrahimi assessed displacement 2 of cervical and lumbar and intervertebral disc without myelopathy, disturbance of skin 3 sensation, and thoracic or lumbosacral neuritis or radiculitis. (AR 401). 4 An August 3, 2012 note from Dr. Moher states that Orsburn had been under his 5 care and was 100% disabled for at least 12 months. (AR 336). 6 On August 14, 2012 Orsburn saw Dr. Berens for an initial consultation. (AR 380). 7 She reported chronic pain for years, worse with exertion, and better in a supine position. 8 (AR 381). Findings on exam included motor strength 5/5, abnormal ROM, facet loading 9 positive, SLR negative, and abnormal gait. Orsburn reported that injections were 10 effective at reducing her symptoms and Dr. Berens recommended she receive another 11 one. (AR 382–83). 12 An August 21, 2012 PT progress report notes that Orsburn met her goals of being 13 independent with her home exercise program and sleeping without discomfort, and that 14 she substantially met her goals of standing and performing daily activities for 30–45 15 minutes and walking for 30–45 minutes, although her pain level varied from day to day. 16 (AR 276). The therapist noted that her cervical and lumbar spine and left shoulder ROM 17 varied widely from treatment to treatment. (AR 277). 18 On September 7, 2012 a PT discharge summary notes that Orsburn completed 24 19 sessions and partially met her goals to increase left shoulder elevation, demonstrate 20 cervical spine active ROM within functional ranges, and demonstrate lumbar spine active 21 ROM within functional ranges with a 0–3/10 complaint of pain. (AR 278–79). Orsburn 22 did not meet her goal to tolerate daily activities with minimal complaints of pain and 23 reported she could only tolerate a position or activity for a short duration before pain 24 forced her to stop. (AR 279). The therapist noted that while she reported pain as high as 25 9.5/10 at her last session, she could tolerate her home exercise program better and a 26 limited period of swimming. He also noted that her left ankle-foot orthosis "made a 27 remarkable improvement in her gait sequence, eliminating her left foot-drop and notably 28 decreasing her LBP and left LE pain." The therapist opined that PT had offered her the -7- 3 1 most it could and recommended a team pain management approach. 2 A December 6, 2012 progress report from Dr. Barron opined that Orsburn had a 3 100% temporary impairment and that she could not return to work because she was still 4 very symptomatic. (AR 289). Orsburn reported that her left side of her body still felt like 5 she had a stroke and that PT only provided temporary relief. (AR 290). On exam, 6 Orsburn had diminished and painful neck ROM, positive Spurling's maneuver and 7 radiating radicular pain, and left shoulder weakness with internal and external rotation 8 and mildly diminished motion due to pain. (AR 290). 9 On December 11, 2012 Orsburn saw Dr. Chapman for a follow up on neck pain 10 and a cervical injection. (AR 316–17). She reported pain 10/10 and described it as 11 stabbing, burning, sharp, aching, and dull, and said that any movement caused pain and 12 that it improved with injections. (AR 316). On exam, Orsburn had a normal gait, strength 13 5/5, positive Spurling's test and facet loading maneuvers, and intact sensation and tendon 14 reflexes. (AR 316). Cervical ROM flexion was 30 degrees (normal 50), extension 15 15 degrees (normal 60), left rotation 45 degrees (normal 80), and right rotation 30 degrees 16 (normal 80). Orsburn received another injection. (AR 369). 17 On March 4, 2013 Orsburn saw Dr. Schroeder for a neurology consult. (AR 509). 18 Findings on exam included normal strength, reflexes, and sensation. Dr. Schroeder 19 assessed mild degenerative changes to the cervical spine, "certainly nothing here to be 20 addressed from a surgical manner." 21 On March 25, 2013 Orsburn saw Dr. Ibrahimi for a follow up. (AR 403). Findings 22 on exam included neck supple with full ROM, left arm and leg strength 4/5, left foot drop 23 4/5, reduced sensation left calf and shoulder, and gait leaning to left. (AR 404–05). Dr. 24 Ibrahimi noted Orsburn had a good response to the injections but still had significant 25 residual pain. (AR 405). 26 On March 28, 2013 Orsburn saw Dr. Berens for an injection. (AR 384–86). She 27 reported partial benefit for a few months from her last injection. (AR 387). On exam, 28 motor strength was 5/5, ROM abnormal, SLR negative, and gait normal. (AR 386). -8- 3 1 A June 5, 2013 MRI of the left hip showed "tiny focus of intermediate signal 2 within the superior labrum, coronal PD 11 of 21." (AR 398). 3 On June 27, 2013 Orsburn saw Dr. Berens for another injection. (AR 388–89). She 4 reported excellent relief and 75–80% benefit for the past few months since her last 5 injection. 6 A September 9, 2013 note from Dr. Moher states that Orsburn has been under his 7 care for chronic pain syndrome and disc disease/arthritis; symptoms are chronic and 8 expected to last more than one year. (AR 413). He opined that Orsburn could sit for one 9 hour at a time, no more than four hours a day; stand for 15 minutes at a time, no more 10 than four hours per day; walk for 15 minutes at a time, no more than 2 hours per day; lift 11 and carry no more than 10 pounds; and may be limited in concentration/persistence 12 secondary to pain/fatigue. 13 On July 23, 2014 Orsburn saw Dr. Berens for her neck pain. (AR 423). She had 14 significant relief for about six months after her injection in June 2013, but moderately 15 severe pain for the past few months. Dr. Berens administered another injection. (AR 16 424). 17 On November 11, 2014 Orsburn saw Dr. Ibrahimi for numbness in her arms. (AR 18 521). Findings on exam included neck supple with full ROM, left arm and leg strength 19 4/5, left foot drop 4/5, reduced sensation left calf and shoulder, reflexes symmetrical, and 20 gait leaning to the left. (AR 522). Dr. Ibrahimi noted Orsburn had good response to 21 injections but still had significant residual pain. (AR 523). 22 An August 14, 2015 letter from Dr. DiGiacinto notes that Orsburn reported 23 restricted activity because of neck and back pain, restricted range of motion, and wore a 24 foot brace but still had discomfort walking. (AR 555). On exam she had pain with neck 25 rotation, back pain with left SLR, loss of sensation, and marked weakness in dorsiflexion 26 in the left foot. He opined she had a permanent marked partial disability. 27 On September 23, 2015 Orsburn was seen by NP Young and reported joint pain, 28 swelling, and stiffness, and left side nerve pain and paralysis. (AR 535). On exam she had -9- 3 1 very limited ROM of the neck without pain, ataxic gait, and strength 3/5. (AR 536). NP 2 Young assessed low back pain, chronic back pain, neck pain, and weakness. 3 An October 29, 2015 MRI of the c-spine showed multilevel spondylosis in the 4 cervical spine with moderate canal stenosis at C4-5 and C5-6 and mild to moderate canal 5 stenosis at C6-7, ventral cord contouring at C4-5, C5-6, and C6-7, and multilevel 6 foraminal stenosis. (AR 545). 7 An October 30, 2015 workers' compensation form from Dr. DiGiacinto stated that 8 Orsburn had not reached maximum medical improvement and still had neck and back 9 pain. (AR 528). He opined that she could do less than sedentary work, and could never 10 lift/carry, push/pull, climb, kneel, bend/stoop/squat, reach overhead or at/below shoulder 11 level, or operate machinery, and could occasionally sit, stand, walk, or drive. (AR 529). 12 On November 11, 2015 Orsburn saw NP Young for a follow up. (AR 538). On 13 exam upper and lower extremity strength were equal and gait steady. (AR 539). 14 On November 17, 2015 Orsburn saw Dr. Berens for an injection. (AR 546). He 15 noted she had she had several months of relief after her last injection in December 2014. 16 On December 17, 2015 Orsburn saw NP Young to complete paperwork for her 17 disability claim. (AR 540). On exam her gait was steady, left grip 2/5 and right grip 4/5. 18 The assessment was cervicalgia, low back pain, and pain in left arm. (AR 540). NP 19 Young assessed the following limitations: never lift with left hand and occasionally lift 20 0–5 pounds with right; stand for one hour; sit for 30 minutes; never climb, balance, stoop, 21 or crouch; occasionally bend, kneel, and crawl; and occasionally reach, feel/handle, and 22 push/pull only with her right hand. (AR 530–31). 23 B. Agency Consulting Physicians 24 On October 28, 2013 Dr. Sanchez completed a consultative psychological exam 25 and medical source statement. (AR 414–17). He opined that Orsburn's symptoms were 26 mild and moderate and consistent with someone experiencing psycho-social stressors and 27 difficulties related to medical problems and pain. (AR 417). 28 ... - 10 - 3 1 C. State Agency Reviewing Physicians 2 On October 3, 2013 DDS physician Dr. Goodrich made an initial determination 3 that Orsburn was not disabled. (AR 98). Dr. Goodrich completed a RFC assessment for 4 light work with the following limitations: occasionally lift 20 pounds, frequently lift 10 5 pounds, stand and walk for 6 hours, sit for 6 hours, unlimited pushing and pulling, 6 occasionally climb ramps, ladders, and stairs, occasionally stoop, kneel, crouch, and 7 crawl, frequently balance, limited overhead reaching, and avoid concentrated exposure to 8 hazards. (AR 94–96). 9 On reconsideration, Orsburn was again found not disabled on March 11, 2014. 10 (AR 128). DDS physician Dr. Woodard made substantially the same RFC assessment as 11 Dr. Goodrich, except crouching was limited to frequently and Dr. Woodard found no 12 environmental limitations. (AR 124–126). 13 D. Workers' Compensation 14 In a decision by the State of New York Workers' Compensation Board, Judge Peel 15 stated that she could not credit Dr. Moher's finding that Orsburn had a total disability 16 because the clinical findings were limited to muscle spasm, left foot drop, and decreased 17 left leg strength, and the clinical diagnostic testing from both before and after the 18 workplace injuries indicated only degenerative findings. (AR 190). Judge Peel further 19 stated that she could not credit Dr. Eskay-Auerbach's finding of no disability because she 20 failed to consider Orsburn's subjective complaints of pain. Id. Judge Peel concluded that 21 Orsburn had a mild degree of disability and awarded benefits. Id. 22 E. Plaintiff's Testimony 23 On a Function Report dated September 24, 2013 Orsburn reported that she spends 24 her days resting, watching tv, and going to doctor appointments. (AR 228). She cannot 25 work or perform daily living functions without pain and discomfort. (AR 229). She is 26 able to prepare her own meals and does housework with frequent breaks between chores. 27 (AR 230). She cannot drive but can ride in a car and shop in stores. (AR 231). Her 28 hobbies are reading and watching tv but she takes frequent breaks because she can't stay - 11 - 3 1 in the same position for long. (AR 232). Her injuries affect her ability to lift, squat, bend, 2 stand, reach, walk, sit, and kneel, and she can walk ½ a block before needing to rest for 3 1–2 minutes. (AR 233). She uses a brace daily that was not prescribed by a doctor. (AR 4 234). 5 At the hearing before the ALJ, Orsburn testified that she is able to drive "with 6 difficulty sometimes." (AR 68). She uses her right hand because her left arms causes pain 7 if she lifts it over a certain level, looking over her right shoulder is problematic, and 8 sometimes her arms go dead and she has to pull off the road. She worked as a stagehand 9 since she was 17 but had to stop working due to her injuries. (AR 69). She received 10 workers' compensation for a period of time. (AR 70). She also worked as a production 11 manager but would not be able to do a similar job at a law firm because she could not sit 12 for that many hours at a computer. (AR 76–77). 13 Orsburn testified that she was unable to work because she had paralysis on the 14 entire left side of her body, sitting and standing for any amount of time cause her pain, 15 she can't lift anything, and if she lifts a grocery bag with too much weight she pays for it 16 for days and spends many hours reclined on ice bags and taking pain killers. (AR 70). 17 She can lift no more than five pounds but cannot lift anything with her left side because it 18 makes her arms go dead. (AR 71–72). She can sit and stand for 15 minutes before it 19 causes pain and problems. (AR 72). She can walk about the length of a football field, 20 leans on a cart when grocery shopping, and takes lots of breaks on benches. Wearing 21 tight high cowboy boots work as a brace for her, and in the summer she wears a leg brace 22 for her left foot paralysis and left foot drop. (AR 72–73). She also wears a sacral belt and 23 uses a back brace on bad days. (AR 73). 24 Orsburn spends her days managing her pain. The weight of her skull causes spine 25 problems so she lays in a recliner on tops of ice packs, uses a TENS machine on her foot, 26 and uses an inversion table. (AR 73). She used to train horses and took a dog training 27 course, but she can't do those things now. (AR 74). She does volunteer as a docent at the 28 zoo because it has a lot of benches where she can sit down and rest and if she's having a - 12 - 3 1 bad day she doesn't have to go. (AR 74–75). She attempted to volunteer at the humane 2 society but she is afraid if the dogs react she will end up crippled. (AR 75). 3 F. Vocational Testimony 4 At the hearing before the ALJ, Ruth Van Fleet testified as a vocational expert. She 5 stated that Orsburn's past work as a stagehand was classified as heavy and skilled, and 6 her work as a production coordinator and production office manager was light and 7 skilled. (AR 79). 8 The ALJ asked Van Fleet to assume an individual with Orsburn's education and 9 work experience with the following limitations: light exertional work, occasionally 10 climbing ramps, stairs, ladders, ropes, and scaffolds, frequently balancing, occasionally 11 stooping, kneeling, crouching, and crawling, overhead reaching bilaterally limited to 12 frequently, and avoid hazards, machinery, and heights. (AR 79). Van Fleet testified that 13 such a person could do Orsburn's past work as a production coordinator as customarily 14 performed. (AR 79). She could also perform other work at the light level such as retail 15 sales, hotel desk clerk, and general office clerk. (AR 81). 16 For the second hypothetical, the ALJ reduced the exertional level to sedentary. 17 (AR 80). Van Fleet testified that Orsburn acquired transferrable skills that would enable 18 her to work as a receptionist, order clerk, or telephone solicitor. (AR 80–81). 19 On questioning by Orsburn's attorney, Van Fleet testified that if a person had to 20 switch from sitting to standing every 15 minutes, it would decrease their productivity. 21 (AR 83). She further stated that if someone had to take two 15–20 minute breaks per day 22 to lie down, in addition to the two customary 15 minute breaks and lunch break, it would 23 eliminate competitive employment for that person. (AR 84–85). 24 G. ALJ's Findings 25 The ALJ found that Orsburn had the severe impairment of spine disorder. (AR 26 21). The ALJ found Orsburn's migraines were not severe because they were well 27 controlled with medication. Id. The ALJ also found that Orsburn's affective disorder was 28 not severe because it caused no more than minimal limitations on her ability to work. - 13 - 3 1 (AR 22). 3 2 The ALJ found that Orsburn's statements concerning the intensity, persistence, 3 and limiting effects of her symptoms were partially credible because although the 4 objective medical evidence "supports certain physical limitations that resulted from the 5 established spinal issues, injections and other conservative measures reportedly have 6 proven to provide up to 80 percent relief at times." (AR 24). The ALJ also noted multiple 7 objective findings showing left arm and leg strength to be at 4/5 minimum, and full range 8 of motion in the left upper extremity at times. Id. 9 The ALJ gave partial weight to treating physician Dr. Moher's opinion because his 10 opinions were provided relatively early in the record and because his opinions were more 11 restrictive than those supported by the totality of the medical evidence. (AR 27). 12 The ALJ gave great weight to consultative examiner Dr. Sanchez's opinion that 13 Orsburn's adjustment disorder and depression was secondary to her medical conditions 14 because the opinion was consistent with the record as a whole. (AR 28). 15 The ALJ gave little weight to Nurse Practitioner Young's opinions because she is 16 not an acceptable medical source, she noted inconsistent findings, the opinions of the 17 medical doctors were more persuasive, Young's opinions were inconsistent with the 18 doctors' opinions, and Young's opinions were not fully supported by the record. (AR 28). 19 The ALJ also noted that Young's opinions appeared to rely heavily on Orsburn's 20 subjective complaints and not specific objective findings revealed on examination. (AR 21 29). 22 The ALJ also gave little weight to treating physician Dr. DiGiacinto's opinions 23 because the opinions were conclusions that were inconsistent with the record as a whole, 24 and because the opinions were conclusory in nature and made on a checkbox form. (AR 25 3 The ALJ also considered the Paragraph B criteria set out in the social security disability 26 regulations for evaluating mental disorders. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00. To satisfy the paragraph B criteria, the mental disorder must result in "extreme" 27 limitation of one, or "marked" limitation of two, of the four areas of mental functioning. Id. The ALJ found Orsburn had mild limitation in activities of daily living, social 28 functioning, and concentration, persistence, or pace, and no episodes of decompensation of extended duration. (AR 22). - 14 - 3 1 29). The ALJ also gave little weight to the statements in Dr. DiGiacinto's narrative letter 2 opinion because it was inconsistent with the medical record and the reports of Orsburn's 3 improvement. Id. 4 The ALJ gave great weight to the opinions of state agency consultants Dr. 5 Goodrich and Dr. Woodard because their opinions were consistent with the totality of the 6 record. (AR 29). The ALJ also gave great weight to the opinions of state agency 7 consultants Dr. Kerns and Dr. Garland because their opinions that Orsburn had only mild 8 limitations resulting from her mental impairments were consistent with the record and 9 with Dr. Sanchez's opinion. (AR 30). 10 The ALJ found that Orsburn had the RFC to perform light work with the following 11 limitations: climbing of ramps, stairs, ladders, ropes, or scaffolds and stooping, kneeling, 12 crouching, and crawling limited to occasionally; balancing and bilateral overhead 13 reaching limited to frequently; and no exposure to hazards, machinery, or heights. (AR 14 23). 15 The ALJ found that Orsburn could perform her PRW as a production manager as 16 generally performed. (AR 30). The ALJ also found that Orsburn could perform other jobs 17 existing in the national economy. (AR 30–31). The ALJ therefore concluded Orsburn was 18 not disabled. (AR 31). 19 III. Standard of Review 20 The Commissioner employs a five-step sequential process to evaluate SSI and 21 DIB claims. 20 C.F.R. §§ 404.920, 416.1520; see also Heckler v. Campbell, 461 U.S. 22 458, 460–462 (1983). To establish disability the claimant bears the burden of showing he 23 (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment 24 meets or equals the requirements of a listed impairment; and (4) the claimant's RFC 25 precludes him from performing his past work. 20 C.F.R. §§ 404.920(a)(4), 26 416.1520(a)(4). At Step Five, the burden shifts to the Commissioner to show that the 27 claimant has the RFC to perform other work that exists in substantial numbers in the 28 national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the - 15 - 3 1 Commissioner conclusively finds the claimant "disabled" or "not disabled" at any point 2 in the five-step process, she does not proceed to the next step. 20 C.F.R. §§ 3 404.920(a)(4), 416.1520(a)(4). 4 Here, Orsburn was denied at Step Four of the evaluation process. Step Four 5 requires a determination of whether the claimant has sufficient RFC to perform past 6 work. 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC is defined as that which an individual 7 can still do despite her limitations. 20 C.F.R. §§ 404.1545, 416.945. A RFC finding is 8 based on the record as a whole, including all physical and mental limitations, whether 9 severe or not, and all symptoms. Social Security Ruling (SSR) 96-8p. If the ALJ 10 concludes the claimant has the RFC to perform past work, the claim is denied. 20 C.F.R. 11 §§ 404.1520(f), 416.920(f). 12 The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 13 405(g), 1383(c)(3). The court may overturn the decision to deny benefits only "when the 14 ALJ's findings are based on legal error or are not supported by substantial evidence in the 15 record as a whole." Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). As set 16 forth in 42 U.S.C. § 405(g), "[t]he findings of the Secretary as to any fact, if supported by 17 substantial evidence, shall be conclusive." Substantial evidence "means such relevant 18 evidence as a reasonable mind might accept as adequate to support a conclusion," 19 Valentine, 574 F.3d at 690 (internal quotation marks and citations omitted), and is "more 20 than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. The 21 Commissioner's decision, however, "cannot be affirmed simply by isolating a specific 22 quantum of supporting evidence." Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 23 1998) (internal citations omitted). "Rather, a court must consider the record as a whole, 24 weighing both evidence that supports and evidence that detracts from the Secretary's 25 conclusion." Aukland, 257 F.3d at 1035 (internal quotations and citations omitted). 26 The ALJ is responsible for resolving conflicts in testimony, determining 27 credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 28 1995). "When the evidence before the ALJ is subject to more than one rational - 16 - 3 1 interpretation, [the court] must defer to the ALJ's conclusion." Batson v. Comm'r Soc. 2 Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because "[t]he [ALJ] and not 3 the reviewing court must resolve conflicts in evidence, and if the evidence can support 4 either outcome, the court may not substitute its judgment for that of the ALJ." Matney v. 5 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (internal citations omitted). 6 Additionally, "[a] decision of the ALJ will not be reversed for errors that are 7 harmless." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The claimant bears the 8 burden to prove any error is harmful. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 9 2011) (citing Shinseki v. Sanders, 556 U.S. 396, 129 S. Ct. 1696, 1706 (2009)). An error 10 is harmless where it is "inconsequential to the ultimate nondisability determination." 11 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (internal citations omitted); see 12 also Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). "[I]n each 13 case [the court] look[s] at the record as a whole to determine whether the error alters the 14 outcome of the case." Molina, 674 F.3d at 1115. In other words, "an error is harmless so 15 long as there remains substantial evidence supporting the ALJ's decision and the error 16 does not negate the validity of the ALJ's ultimate conclusion." Id. (internal quotation 17 marks and citations omitted). Finally, "[a] claimant is not entitled to benefits under the 18 statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ's errors 19 may be." Strauss v. Comm'r Soc. Sec., 635 F.3d 1135, 1138 (9th Cir. 2011). 20 IV. Analysis 21 Orsburn argues that the ALJ failed to properly evaluate the opinions of Drs. Foote 22 and DiGiacinto according to the treating physician rule and that the RFC assessment is 23 therefore not supported by substantial evidence. (Doc. 13). Orsburn further argues that 24 the ALJ failed to provide clear and convincing reasons for rejecting her subjective 25 symptom testimony when negatively assessing her credibility. Orsburn requests that the 26 Court remand this matter for an award of benefits or further administrative proceedings. 27 (Doc. 13 at 25; Doc. 15 at 4). 28 The Commissioner argues that the Court should affirm the ALJ's decision because - 17 - 3 1 the ALJ properly weighed the medical opinion evidence and the RFC is consistent with 2 Dr. Foote's opinion. (Doc. 14). The Commissioner further states that if the ALJ did err in 3 failing to consider Dr. Foote's opinion or Dr. DiGiacinto's opinion, the errors were 4 harmless. Finally, the Commissioner argues that the ALJ reasonably weighed the 5 credibility of Plaintiff's subjective complaints and provided valid reasons for negatively 6 assessing Plaintiff's credibility. 7 The Court finds no error in the ALJ's assessment of Dr. Foote's treating physician 8 opinion. However, the Court finds that the ALJ erred in failing to provide legally 9 sufficient reasons for rejecting Dr. DiGiacinto's treating physician opinion and for 10 negatively assessing Orsburn's credibility. These errors impacted the ALJ's RFC 11 assessment and the hypotheticals posed to the VE. Consequently, these errors were not 12 harmless because they ultimately impacted the ALJ's nondisability finding. Because 13 factual issues remain regarding whether Orsburn is disabled under the regulations, the 14 Court will remand this matter for further administrative proceedings. 15 A. Treating Physician Opinions 16 Orsburn first argues that the ALJ erred by failing to properly evaluate the medical 17 opinion of her treating physician, Dr. Foote. Similarly, in her second issue presented for 18 review, Orsburn argues that the ALJ erred in assigning Dr. DiGiacinto's opinion little 19 weight. 20 In weighing medical source opinions in Social Security cases, the Ninth Circuit 21 distinguishes among three types of physicians: (1) treating physicians, who actually treat 22 the claimant; (2) examining physicians, who examine but do not treat the claimant; and 23 (3) non-examining physicians, who neither treat nor examine the claimant. Lester v. 24 Chater, 81 F.3d 821, 830 (9th Cir. 1995). "As a general rule, more weight should be 25 given to the opinion of a treating source than to the opinion of doctors who do not treat 26 the claimant." Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Lester, 81 27 F.3d at 830). "Courts afford the medical opinions of treating physicians superior weight 28 because these physicians are in a better position to know plaintiffs as individuals, and - 18 - 3 1 because the continuity of their treatment improves their ability to understand and assess 2 an individual's medical concerns." Potter v. Colvin, 2015 WL 1966715, at *13 (N.D. Cal. 3 Apr. 29, 2015). "While the opinion of a treating physician is thus entitled to greater 4 weight than that of an examining physician, the opinion of an examining physician is 5 entitled to greater weight than that of a non-examining physician." Garrison, 759 F.3d at 6 1012. 7 Where a treating physician's opinion is not contradicted by another physician, it 8 may be rejected only for "clear and convincing" reasons. Lester, 81 F.3d at 830. "If a 9 treating or examining doctor's opinion is contradicted by another doctor's opinion, an 10 ALJ may only reject it by providing specific and legitimate reasons that are supported by 11 substantial evidence. This is so because, even when contradicted, a treating or examining 12 physician's opinion is still owed deference and will often be entitled to the greatest 13 weight. . . even if it does not meet the test for controlling weight." Garrison, 759 F.3d at 14 1012 (internal quotations and citations omitted). Specific, legitimate reasons for rejecting 15 a physician's opinion may include its reliance on a claimant's discredited subjective 16 complaints, inconsistency with the medical records, inconsistency with a claimant's 17 testimony, or inconsistency with a claimant's ADL. Tommassetti v. Astrue, 533 F.3d 18 1035, 1041 (9th Cir. 2008). "An ALJ can satisfy the substantial evidence requirement by 19 setting out a detailed and thorough summary of the facts and conflicting clinical 20 evidence, stating his interpretation thereof, and making findings. The ALJ must do more 21 than state conclusions. He must set forth his own interpretations and explain why they, 22 rather than the doctors', are correct." Id. However, "when evaluating conflicting medical 23 opinions, an ALJ need not accept the opinion of a doctor if that opinion is brief, 24 conclusory, and inadequately supported by clinical findings." Bayliss v. Barnhart, 427 25 F.3d 1211, 1216 (9th Cir. 2005). Finally, if the ALJ determines that the plaintiff's 26 subjective complaints are not credible, this is a sufficient reason for discounting a 27 physician's opinion that is based on those subjective complaints. Bray v. Comm'r Soc. 28 Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). - 19 - 3 1 1. Dr. Foote 2 Orsburn argues that the ALJ failed to evaluate, weigh, or discuss Dr. Foote's May 3 20, 2012 4 opinion that Orsburn could not return to work due to ongoing pain with 4 activity, and that based on her mild carpal tunnel syndrome, she had a 5% temporary 5 impairment in addition the 60% impairment assessed by Dr. Barron. (Doc. 13 at 13) 6 (citing AR 495, 500). Orsburn alleges that the ALJ committed reversible error by failing 7 to even mention this opinion, and argues that the opinion is supported by Dr. Foote's own 8 treatment notes. Id. (citing AR 485–86, 526). 9 Orsburn saw Dr. Foote early in the treatment record—she attended one 10 appointment with him on April 30, 2012 (AR 485). On May 8, 2012 he completed a form 11 for her workers' compensation case that stated "Dr. Foote continues her off-work status, 12 not taken off work by Dr. Foote." (AR 494). A second workers' compensation form 13 completed by Dr. Foote on May 30, 2012 states that Orsburn has a 5% temporary 14 impairment based on the nerve study showing mild carpal tunnel in her left arm, and that 15 she cannot return to work because of ongoing pain. (AR 500). The fax cover sheet states 16 that "Dr. Foote supports the 60% disability already in place by Dr. Alton Barron in New 17 York. The 5% is in addition." (AR 495). 18 While the ALJ reviewed Dr. Foote's findings in her written decision (AR 25–26), 19 she did not specifically reference his opinion that Orsburn had a 5% temporary 20 impairment. She did, however, note that Dr. Foote reviewed Orsburn's EMG study and 21 "concluded the studies showed mild carpal tunnel syndrome of the left upper extremity, 22 and the study of the left lower extremity was within normal limits with the exception of 23 the noted absent tibial H-reflex." (AR 26). These are the same findings Dr. Foote noted 24 on the May 30, 2012 form. (AR 500). Thus, it is clear that the ALJ reviewed all of the 25 record evidence from Dr. Foote, including the May 2012 opinion, even if she did not 26 specifically mention the 5% temporary impairment rating. Compare Marsh v. Colvin, 792 27 F.3d 1170 (9th Cir. 2015) (finding harmful error where ALJ's decision failed to even 28 4 While Orsburn states the opinion is from May 20, 2012, the form indicates that Dr. Foote signed it on May 30, 2012. (AR 500). - 20 - 3 1 mention treating doctor's opinion or notes). Further, while the Commissioner is required 2 to "make fairly detailed findings in support of administrative decisions to permit courts to 3 review those decisions intelligently," the Commissioner is not required to "discuss all 4 evidence." Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984) 5 (emphasis in original). "Rather, she must explain why 'significant probative evidence has 6 been rejected.'" Id. (citation omitted); see also 20 C.F.R. § 404.1527(c)(2)(i) ("Generally, 7 the longer a treating source has treated [the claimant] and the more times [the claimant 8 has] been seen by a treating source, the more weight [the Commissioner] will give to the 9 source's medical opinion."). 10 In addition, it is unclear who wrote the note on the fax cover sheet, and there is 11 nothing in Dr. Foote's notes from Orsburn's April 30, 2012 appointment indicating that 12 he believed she was 65% disabled. 5 The May 30, 2012 form opines that Orsburn cannot 13 return to her job as a stagehand because of ongoing pain, that it was unknown how long 14 this restriction would last, and that she had a 5% temporary impairment. (AR 500). The 15 form does not opine that Orsburn is permanently disabled and cannot work at all, nor 16 does it recommend any specific work limitations; thus, Dr. Foote's opinion is not 17 inconsistent with the ALJ's RFC for light work 6 with frequent overhead reaching. 18 Finally, the undersigned notes that Orsburn's argument on this point is focused on 19 a form that Dr. Foote completed for her workers' compensation claim. However, 20 workers' compensation decisions are not binding on the Commissioner; nor are 21 physician's statements of disability. See SSR 06-03p at *6 (While the Commissioner is 22 "required to evaluate all the evidence in the case record that may have a bearing on [the] 23 5 The Court further notes that while on several occasions Dr. Barron opined that Orsburn had a 100% temporary impairment, there does not appear to be any opinion in the record 24 that Orsburn had a 60% impairment, temporary or permanent. 6 See 20 C.F.R. 404.1567(b) ("Light work involves lifting no more than 20 pounds at a 25 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 26 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 27 range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, 28 unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time."). - 21 - 3 1 determination or decision of disability, including decisions by other governmental and 2 nongovernmental agencies, . . . a determination made by another agency. . . is not 3 binding on [the Social Security Administration]."). 7 4 Based on the foregoing, the Court finds no harmful error in the ALJ's assessment 5 of Dr. Foote's opinion. See Marsh, 792 F.3d at 1172 (holding that harmless error applies 6 in cases where ALJ fails to mention medical opinion). 7 2. Dr. DiGiacinto 8 Orsburn argues that the ALJ failed to properly weigh Dr. DiGiacinto's opinion 9 that she was limited to less than sedentary work. (Doc. 13 at 15) (citing AR 527–29, 555). 10 Dr. DiGiacinto completed a form for Orsburn's workers' compensation claim on 11 October 30, 2015. (AR 527–29). He stated that she had not reached maximum medical 12 improvement and continued to have neck and lower back pain, and that she was limited 13 to less than sedentary work due to her exertional limitations: never lift/carry, push/pull, 14 climb, kneel, bend/stoop/squat, reach overhead or at/below shoulder level, or operate 15 machinery; and occasionally sit, stand, walk, drive, and do simple grasping and fine 16 manipulation. 17 Dr. DiGiacinto's opinion was contradicted by the opinions of state agency 18 physicians Drs. Goodrich and Woodard. Accordingly, the ALJ was required to provide 19 specific and legitimate reasons to discount Dr. DiGiacinto's opinion. The Court finds that 20 the ALJ failed to meet that standard here. 21 The ALJ assigned little weight to DiGiacinto's opinion for two reasons. First, the 22 ALJ noted that the opinion was conclusory in nature because it was on a check box form. 23 "The more a medical source presents relevant evidence to support a medical opinion, 24 particularly medical signs and laboratory findings, the more weight [the Commissioner] 25 will give that medical opinion." 20 C.F.R. § 404.1527(c)(3). In addition, "[t]he better an 26 explanation a source provides for a medical opinion, the more weight [the Commissioner] 27 will give that medical opinion." Id. Based on the record before the Court, it appears that 28 7 SSR 06-03p has been rescinded effective March 27, 2017 (after the ALJ's decision in this matter). - 22 - 3 1 Orsburn saw Dr. DiGiacinto three times before he made his October 2015 opinion. See 2 AR 334 (June 6, 2011 appointment), AR 333 (September 8, 2011 appointment), and AR 3 555 (August 14, 2015 appointment). While there is limited information on the check box 4 form to support Dr. DiGiacinto's opinion, he also wrote a letter opinion documenting the 5 results of his August 14, 2015 examination of Orsburn. (AR 555). Defendant argues that 6 the letter was actually written two months before Dr. DiGiacinto completed the form and 7 thus could not have commented directly on the form; however, the opinions on the form 8 are also based on the August 14, 2015 examination, and when read together, the letter 9 opinion lends support to the opinions on the check box form. Thus, while the form by 10 itself is conclusory in nature, when taken together with the letter opinion, the check box 11 form is "entitled to weight that an otherwise unsupported and unexplained check-box 12 form would not merit." Garrison, 759 F.3d at 1013, n.17 (check-box forms "were entirely 13 consistent with the hundreds of pages of treatment notes"). 14 Second, the ALJ found that the opinion was inconsistent with the entirety of the 15 record, including the records noting improvement from conservative treatment methods 16 like medication, injections, and PT. Orsburn contends that the record actually shows the 17 opposite—for example, she completed PT but was still extremely limited (AR 279), and 18 she had 80% improvement from an injection but it only lasted for a few weeks (AR 365, 19 486). The ALJ may not manufacture a conflict with respect to the outcome of treatment 20 by asserting that Orsburn's records show improvement, when in fact the records show 21 that she consistently reported neck, shoulder, arm, leg, and back pain that responded only 22 briefly and partially to treatment. See Garrison, 759 F.3d at 1013. While at times Orsburn 23 did report improvement in her symptoms, she did not experience complete relief, and no 24 doctor opined that she experienced relief sufficient that she would be able to return to 25 work. 8 26 The ALJ rejected DiGiacinto's letter opinion for the same reasons, and also noted 27 that his conclusions were "inconsistent with previous medical records, including those 28 8 See Section C below for further discussion of Orsburn's response to treatment. - 23 - 3 1 records which reflect little to no limitations in cervical range of motion and the up to 2 eighty percent (80%) pain relief reported at various times. . . The opinion is also 3 inconsistent with the report of remarkable improvement in gait sequence, the elimination 4 of the left foot drop and notable decrease in lower back and left lower extremity pain. . . 5 ." (AR 29) (citing exhibit 1F). While "[a] conflict between treatment notes and a treating 6 provider's opinions may constitute an adequate reason to discredit the opinions of a 7 treating physician or another treating provider," Ghanim v. Colvin, 763 F.3d 1154, 1161 8 (9th Cir. 2014), the ALJ may not manufacture a conflict by cherry-picking the evidence 9 to support a finding of non-disability. The ALJ's finding that Dr. DiGiacinto's opinion 10 was inconsistent with the record "is belied by the evidence and must be rejected." 11 Garrison, 759 F.3d at 1015. First, there are numerous instances in the record where 12 Orsburn's treating providers observed that she had diminished or abnormal motion of the 13 cervical spine (AR 294, 298, 316, 323, 329, 381, 386) and pain with neck rotation (AR 14 290, 536). Second, as in Garrison, the "records make clear that epidural shots. . . 15 relieved [Orsburn's] back pain for only variable, brief periods of time. . ." 759 F.3d at 16 1015. Finally, while the PT noted that Orsburn's left ankle foot orthosis made a 17 remarkable improvement in her gait, eliminating her left foot drop and notably decreasing 18 her LBP and left LE pain (AR 279), at subsequent medical appointments Orsburn was 19 noted to have an ataxic gait (AR 536) and gait leaning to the left (AR 404, 522), foot drop 20 4/5 (AR 404, 522), and increased back pain (AR 536, 555). 21 While none of the other treating or state agency physicians opined that Orsburn 22 was limited to less than sedentary work, 9 treating physician Dr. Moher assessed 23 limitations consistent with a sedentary RFC (AR 413) and Dr. DiGiacinto's opinion is 24 only slightly more restrictive. For example, DiGiacinto opined that Orsburn could 25 occasionally sit, stand, and walk (defined as up to 1/3 of the time). Moher opined that she 26 9 For example, as discussed above, Dr. Foote opined that Orsburn had a 5% temporary 27 impairment and could not return to work as a stagehand, but he did not opine that she could never work at all, nor did he assess any limitations. (AR 500). State agency 28 physicians Drs. Goodrich and Woodard opined that Orsburn could perform light work (AR 98, 124–26). - 24 - 3 1 could sit for no more than 1 hour at a time and no more than 4 hours per day, stand for no 2 more than 15 minutes at a time and no more than 4 hours per day, and walk for no more 3 than 15 minutes at a time and no more than 2 hours per day. The two opinions do not 4 conflict in this regard. While DiGiacinto opined that Orsburn could never lift or carry, 5 Moher opined that she could lift and carry no more than 10 pounds. Thus, while Dr. 6 DiGiacinto assessed slightly more restrictive lifting limitations, Dr. Moher's opinion was 7 also rendered much earlier in the treatment record and it is reasonable that Orsburn's 8 ability to lift and carry may have decreased over time. 9 Further, similar to Dr. DiGiacinto's opinion, the restrictions NP Young assessed 10 also support a less than sedentary RFC. (AR 530–31). While Defendant argues that nurse 11 practitioners are not acceptable medical sources under the regulations and thus her 12 opinion is entitled to less weight, opinions from other sources must still be evaluated and 13 the ALJ may discount their testimony only by giving reasons germane to each witness. 14 See Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014). Pursuant to SSR 06-03p, 15 "[i]nformation from these 'other sources' cannot establish the existence of a medically 16 determinable impairment. . . . However, information from such 'other sources' may be 17 based on special knowledge of the individual and may provide insight into the severity of 18 the impairment(s) and how it affects the individual's ability to function." Thus, as one of 19 Orsburn's treating providers, NP Young qualified as an "other source" that can provide 20 evidence about the severity of Orsburn's impairments and how they affect her ability to 21 work. 20 C.F.R. § 404.1513(d). Young's opinion that Orsburn could never lift with her 22 left hand and occasionally lift 0–5 pounds with her right hand is similar to Dr. 23 DiGiacinto's opinion that Orsburn could never lift or carry and lends support to the 24 opinion. 10 25 However, the Court does note that, like Dr. Foote, Dr. DiGiacinto's opinion was 26 made on a check box form for Orsburn's workers' compensation claim. While the ALJ 27 may not ignore a "medical opinion merely because it was issued in a workers' 28 10 However, the Court also notes that the ALJ assigned little weight to NP Young's opinion, a finding that Orsburn does not challenge. - 25 - 3 1 compensation context[,]" the "terms employed in workers' compensation disability rating 2 are not equivalent to Social Security disability terminology." Bowser v. Comm'r of Soc. 3 Sec., 121 F. App'x 231, 242 (9th Cir. 2005). "The workers' compensation and Social 4 Security standards operate as different paradigms. [Workers' compensation] activity 5 modifications are framed as what [a] Claimant should not do, as opposed to the 6 Commissioner's concern of what her 'capacity' is." Id. at 243. Thus, Dr. DiGiacinto's 7 opinion on the workers' compensation form that Orsburn could perform less than 8 sedentary work is not necessarily equivalent to a finding of disability under the Social 9 Security regulations. 10 Finally, Orsburn argues that the ALJ erred by failing to consider that Dr. 11 DiGiacinto is a specialist in neurosurgery. (Doc. 13 at 21) (citing AR 555). Because the 12 ALJ did not assign Dr. DiGiacinto's opinion controlling weight, she was required to 13 evaluate his opinion according to the requirements set out in 20 C.F.R. § 404.1527(c), 14 including whether Dr. DiGiacinto was a specialist. In light of the ALJ's conclusion that 15 Dr. DiGiacinto's opinion was entitled to little weight, the Court cannot find that this error 16 was harmless. Because the ALJ did not specifically mention Dr. DiGiacinto's specialty in 17 her decision, it is unclear whether she properly considered it, and, if she had, she may 18 have assessed his opinion differently. 19 In sum, the Court finds that the ALJ failed to provide specific and legitimate 20 reasons for discounting Dr. DiGiacinto's opinion. This error is not harmless because it 21 affected the ALJ's RFC assessment and the ultimate nondisability finding. 22 B. RFC Assessment 23 Orsburn next argues that the RFC is not supported by substantial evidence because 24 the ALJ failed to follow the treating physician rule in evaluating Dr. Foote's and Dr. 25 DiGiacinto's opinions. Orsburn does not specifically argue which portion(s) of the RFC 26 are allegedly faulty but instead focuses her argument on the ALJ's discounting of Dr. 27 DiGiacinto's opinion, as already discussed above. 28 RFC is "the most [a claimant] can still do despite her limitations," and includes - 26 - 3 1 assessment of the claimant's "impairment(s), and any related symptoms, such as pain, 2 [which] may cause physical and mental limitations that affect what she can do in a work 3 setting." 20 C.F.R. § 404.1545(a)(1). The Commissioner retains the ultimate 4 responsibility for assessing a claimant's RFC. 20 C.F.R. §§ 404.1527(e)(2), 5 416.927(e)(2). The ALJ was required to assess Orsburn's RFC based on all the record 6 evidence, including medical sources, examinations, and information provided by 7 Orsburn. 20 C.F.R. §§ 404.1545(a)(1)-(3), 416.945(a)(1)-(3). However, the ALJ need not 8 include all possible limitations in her assessment of what a claimant can do, but rather is 9 only required to ensure that the RFC "contain[s] all the limitations that the ALJ found 10 credible and supported by the substantial evidence in the record." Bayliss v. Barnhart, 11 427 F.3d 1211, 1217 (9th Cir. 2005); Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 12 2006). 13 As discussed above, the Court finds no error in the ALJ's assessment of Dr. 14 Foote's opinion, and the ALJ's RFC assessment is not inconsistent with Dr. Foote's 15 opinion. Dr. Foote found that Orsburn had a 5% temporary impairment based on her mild 16 carpal tunnel and that she could not return to her job as a stagehand, but he did not assess 17 any specific limitations, nor did he opine that she could not return to work at all. The ALJ 18 also found that Orsburn could not return to her work as a stagehand, but that she could 19 perform a reduced range of light work. 20 However, the Court does find that the ALJ erred in assigning little weight to Dr. 21 DiGiacinto's opinion, and the ALJ's RFC assessment fails to incorporate any of Dr. 22 DiGiacinto's recommended limitations. For example, Dr. DiGiacinto opined that Orsburn 23 could never lift or carry, but the ALJ found that Orsburn was able to perform light work, 24 which by definition involves "lifting no more than 20 pounds at a time with frequent 25 lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. 404.1567(b). While 26 the Court does not offer an opinion as to whether DiGiacinto's opinion should have been 27 given controlling weight, had the ALJ assigned greater weight to Dr. DiGiacinto's 28 opinion and incorporated additional limitations in the hypothetical to the VE, the - 27 - 3 1 outcome of the proceedings would have been different. Accordingly, this error was not 2 harmless because it affected the ultimate non-disability determination. 3 C. Credibility 4 Lastly, Orsburn argues that the ALJ erred in failing to provide clear and 5 convincing reasons for discounting her testimony regarding the functional limitations 6 stemming from her impairments. Specifically, Orsburn alleges that the ALJ erred by 7 discounting her testimony solely because it was not supported by the objective medical 8 evidence (citing SSR 96-7p), because the ALJ relied on Orsburn's 80% improvement 9 while failing to mention that the relief was only temporary (citing AR 365), and because 10 the ALJ did not consider the positive impact of her admirable work history (citing AR 11 203). (Doc. 13 at 24). 12 "An ALJ's assessment of symptom severity and claimant credibility is entitled to 13 great weight." Honaker v. Colvin, 2015 WL 262972, *3 (C.D. Cal. Jan. 21, 2015) 14 (internal quotations and citations omitted). This is because "an ALJ cannot be required to 15 believe every allegation of disabling pain, or else disability benefits would be available 16 for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A)." Treicherler v. 17 Comm'r. Soc. Sec. Admin., 775 F.3d 1090, 1106 (9th Cir. 2014) (citation omitted). "If the 18 ALJ's credibility finding is supported by substantial evidence in the record, the reviewing 19 court may not engage in second-guessing." Honaker, 2015 WL 262972 at * 3 (internal 20 quotations and citation omitted). 21 While questions of credibility are functions solely for the ALJ, this Court "cannot 22 affirm such a determination unless it is supported by specific findings and reasoning." 23 Robbins v. Comm'r Soc. Sec. Admin. 466 F.3d 880, 885 (9th Cir. 2006). "It is well 24 settled that an ALJ may discount a claimant's testimony on the grounds that (1) it is 25 inconsistent with objective medical evidence, (2) there is a lack of corroborating medical 26 evidence, or (3) there is insufficient medical evidence to establish disability during the 27 insured period." Rossiter v. Berryhill, 2018 WL 1041172, *7 (D. Oregon Feb. 2, 2018). 28 However, "lack of medical evidence cannot form the sole basis for discounting pain - 28 - 3 1 testimony." Burch, 400 F.3d at 681. 2 Here, the ALJ concluded that although the objective medical evidence supported 3 certain physical limitations from Orsburn's spinal issues, Orsburn's testimony was only 4 partially credible because she had up to 80% relief at times, multiple objective findings 5 showed left arm and leg strength to be 4/5 minimum, and she had full ROM in the left 6 shoulder/upper extremity at times. (AR 24). While Defendant concedes that the ALJ 7 would have committed error if she only discounted Orsburn's credibility because her 8 complaints were not supported by the objective medical evidence, Defendant contends 9 that the ALJ also provided a second, legally sufficient reason—Orsburn's positive 10 response to treatment. However, this "reason[] is belied by the evidence and must be 11 rejected." Garrison, 759 F.3d at 1015. 12 The Court notes the following from the record: Orsburn reported her first injection 13 provided 40% relief for three weeks, and her pain was 25% better at a follow up (AR 14 324); pain improved with medication (AR 344); acupuncture helped (AR 319); pain 15 worse (AR 357); injection helped 80% and pain was 30% better (AR 365); injections 16 effective at reducing symptoms (AR 382); PT goals partially met but did not meet goal to 17 tolerate daily activities without complaints of pain (AR 278–79); PT provided only 18 temporary relief (AR 290); pain improved with injections (AR 316, 405); partial benefit 19 for a few months after last injection (AR 387); excellent relief and 75-80% benefit since 20 last injection (AR 388–89); significant relief for six months after last injection (AR 423); 21 good response to injections but significant residual pain (AR 523); and several months 22 relief after last injection (AR 546). Thus, while Orsburn has reported up to 80% relief at 23 times, she also continued to experience "significant residual pain" and has never reported 24 complete or permanent relief. "At most, this evidence demonstrates that, for a brief 25 period of time, [Orsburn] experienced some relief from [her] pain." Lester, 81 F.3d at 26 833; see also Garrison, 759 F.3d at 1015 n.20 ("In any event, we doubt that epidural 27 steroid shots to the neck and lower back qualify as 'conservative' medical treatment."). 28 "In sum, there is no support in the record for the ALJ's belief that physical therapy and - 29 - 3 1 epidural shots alleviated [Orsburn's] pain enough that her testimony regarding pain was 2 incredible." Garrison, 759 F.3d at 1015. To the contrary, the record shows that despite 3 pursing PT, acupuncture, injections, and medication, Orsburn's pain persisted throughout 4 the treatment period, and her subjective symptom testimony is consistent with this 5 evidence. 6 Finally, the undersigned finds that the ALJ erred by failing to note Orsburn's 7 positive work history. Orsburn testified that she worked as a stagehand since she was 17, 8 and her work history reports document that she has worked as a stagehand, production 9 coordinator, and production office manager from 1976–2011. (AR 236, 245). Given the 10 ALJ's negative credibility assessment, the undersigned cannot say that this error was 11 harmless because had the ALJ considered Orsburn's work history, she may have assessed 12 Orsburn's credibility more positively. See Poe v. Astrue, 2009 WL 2485994, *14 (D. 13 Ariz. Aug. 12, 2009) ("Plaintiff has a solid forty-five-year work record, which bolsters 14 his credibility regarding his inability to work."). 15 In sum, the Court finds that the ALJ erred in discrediting Orsburn's subjective 16 symptom testimony based on her positive response to treatment. The undersigned further 17 finds that this error was harmful and negates the validity of the ALJ's ultimate 18 nondisability determination because the ALJ's adverse credibility finding affected the 19 limitations that the ALJ assessed in the RFC finding and the corresponding hypothetical 20 presented to the VE, which in turn could alter the outcome of the case. See Batson, 359 21 F.3d at 1197. Accordingly, the Court finds that remand is appropriate. 22 V. Remedy 23 A federal court may affirm, modify, reverse, or remand a social security case. 42 24 U.S.C. § 405(g). Absent legal error or a lack of substantial evidence supporting the ALJ's 25 findings, this Court is required to affirm the ALJ's decision. After considering the record 26 as a whole, this Court simply determines whether there is substantial evidence for a 27 reasonable trier of fact to accept as adequate to support the ALJ's decision. Valentine, 28 574 F.3d at 690. - 30 - 3 1 "'[T]he decision whether to remand the case for additional evidence or simply to 2 award benefits is within the discretion of the court.'" Rodriguez v. Bowen, 876 F.2d 759, 3 763 (9th Cir.1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir.1985)). 4 "Remand for further administrative proceedings is appropriate if enhancement of the 5 record would be useful." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 6 Conversely, remand for an award of benefits is appropriate where: 7 (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that 8 must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would 9 be required to find the claimant disabled were such evidence credited. 10 Benecke, 379 F.3d at 593 (citations omitted). Where the test is met, "we will not remand 11 solely to allow the ALJ to make specific findings.... Rather, we take the relevant 12 testimony to be established as true and remand for an award of benefits." Id. (citations 13 omitted); see also Lester v. Chater, 81 F.3d 821, 834 (9th Cir.1995). 14 "[T]he required analysis centers on what the record evidence shows about the 15 existence or non-existence of a disability." Strauss v. Comm. Soc. Sec. Admin., 635 F.3d 16 1135, 1138 (9th Cir. 2011). "Administrative proceedings are generally useful where the 17 record has not been fully developed, there is a need to resolve conflicts and ambiguities, 18 or the presentation of further evidence may well prove enlightening in light of the 19 passage of time." Treichler v. Comm. Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 20 2014) (internal quotations and citations omitted). "Where there is conflicting evidence, 21 and not all essential factual issues have been resolved, a remand for an award of benefits 22 is inappropriate." Id. "In evaluating [whether further administrative proceedings would be 23 useful, the Court considers] whether the record as a whole is free from conflicts, 24 ambiguities, or gaps, whether all factual issues have been resolved, and whether the 25 claimant's entitlement to benefits is clear under the applicable legal rules." Id. at 1103– 26 04. 27 Here, the Court finds that "[r]emand for further administrative proceedings is 28 appropriate [because] enhancement of the record would be useful." Benecke, 379 F.3d at - 31 - 3 1 593. The ALJ erred by failing to provide legally sufficient reasons for negatively 2 assessing Orsburn's credibility and assigning little weight to Dr. DiGiacinto's opinion. 3 Because of these errors, issues remain regarding Orsburn's RFC and her ability to 4 perform work existing in significant numbers in the national economy. Further, the 5 undersigned notes that the most recent medical record in the administrative record is from 6 December 2015. Because Orsburn's DLI is March 30, 2017, it may be useful to 7 supplement the record on remand, if warranted, if there is new evidence that is material to 8 the disability determination, both to document the current state of Orsburn's conditions as 9 well as to augment the medical records previously submitted in this case. See Treichler, 10 775 F.3d at 1101 (9th Cir. 2014) ("presentation of further evidence may well prove 11 enlightening in light of the passage of time."). 12 This Court offers no opinion as to whether Orsburn is disabled within the meaning 13 of the Act. However, the ALJ is required to consider all of Orsburn's alleged 14 impairments, whether severe or not, in her assessment on remand, and "[t]he RFC 15 assessment must be based on all the relevant evidence in the case record." SSR 96–8p, 16 1996 WL 374184, at *5 (emphasis in original) ("The adjudicator must consider all 17 allegations of physical and mental limitations or restrictions and make every reasonable 18 effort to ensure that the file contains sufficient evidence to assess RFC. Careful 19 consideration must be given to any available information about symptoms because 20 subjective descriptions may indicate more severe limitations or restrictions than can be 21 shown by objective medical evidence alone."); C.F.R. § 416.920(e) (ALJ must consider 22 claimant's subjective experiences of pain). 23 VI. Conclusion 24 In light of the foregoing, the Court REVERSES the ALJ's decision and the case is 25 REMANDED for further proceedings consistent with this decision, including additional 26 hearing testimony, if necessary. 27 Accordingly, IT IS HEREBY ORDERED that the Commissioner's decision is 28 remanded back to an ALJ with instructions to issue a new decision regarding Orsburn's - 32 - 3 1 eligibility for disability insurance benefits. The ALJ will: (1) reassess Orsburn's 2 credibility; (2) reassess Dr. DiGiacinto's opinion and give further consideration to all of 3 the previously submitted medical records; (3) further develop the record, as needed, to 4 fully and fairly assess Orsburn's conditions and limitations, (4) further consider 5 Orsburn's residual functional capacity, citing specific evidence in support of the assessed 6 limitations, and (5) continue the sequential evaluation process to assess whether in fact 7 Orsburn is disabled within the meaning of the SSA and whether she is able to perform 8 any work existing in the national economy. 9 IT IS FURTHER ORDERED the Clerk of the Court shall enter judgment, and 10 close its file in this matter. 11 Dated this 24th day of August, 2018. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 33 -

Clerks Judgment

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Terry Orsburn, NO. CV-17-00296-TUC-EJM 10 Plaintiff, JUDGMENT IN A CIVIL CASE 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Decision by Court. This action came for consideration before the Court. The 16 issues have been considered and a decision has been rendered. 17 IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed 18 August 24, 2018, the decision of the Commissioner of Social Security is remanded to the 19 Social Security Administration for further proceedings consistent with the Order. 20 Brian D. Karth District Court Executive/Clerk of Court 21 22 August 24, 2018 s/ S. Barraza 23 By Deputy Clerk 24 25 26 27 28

Interested in this case?

Sign up to receive real-time updates
Last full docket sheet refresh: 419 days ago. Refresh now
#
Datesort arrow up
Description
1
06/27/2017
COMPLAINT. Filing fee received: $ 400.00, receipt number 0970-14375392 filed by Terry Orsburn.
1
Civil Cover Sheet)(DLC
1 Attachment
2
06/27/2017
SUMMONS Submitted by Terry Orsburn.
1
Summons
2
Summons)(DLC
2 Attachments
3
06/27/2017
Filing fee paid, receipt number 0970-14375392. This case has been assigned to the Honorable Eric J Markovich. All future pleadings or documents should bear the correct case number: 4:CV-17-00296-TUC-EJM. Magistrate Election form attached.
4
06/27/2017
Summons Issued as to Commissioner of Social Security Administration, U.S. Attorney and U.S. Attorney General.
1
Summons
2
Summons)(DLC
2 Attachments
5
06/28/2017
SCHEDULING ORDER: IT IS ORDERED that the parties must fully comply with the deadlines and procedures within this Order. Signed by Magistrate Judge Eric J Markovich on 6/28/17.
06/28/2017
Remark: Pro hac vice motion granted for Edward A Wicklund on behalf of plaintiff. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
6
07/13/2017
Agreement to Magistrate Judge Jurisdiction. Party agrees to Magistrate Judge Jurisdiction. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
07/21/2017
NOTICE of request for e-notices by J. Cole Hernandez. (Text entry; no document attached.)
7
08/02/2017
SERVICE EXECUTED filed by Terry Orsburn: Return of Service re: Summons, Complaint and Scheduling Order upon US Attorney's Office, Office of General Counsel, Attorney General on 7/24/2017.
8
08/17/2017
NOTICE OF ATTORNEY APPEARANCE: Jeffrey McClain appearing for Commissioner of Social Security Administration.
10
09/07/2017
Minute Order: In accordance with 28 USC 636(c), all parties have voluntarily consented to have Magistrate Judge Markovich conduct all further proceedings in this case, including trial and entry of final judgment, and conduct all post-judgment proceedings, with direct review by the Ninth Circuit Court of Appeals, if an appeal is filed. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
11
09/18/2017
ANSWER to [1] Complaint by Commissioner of Social Security Administration.
12
09/18/2017
NOTICE of Filing Certified Copy of Administrative Transcript re: [11] Answer to Complaint filed by Commissioner of Social Security Administration.
1
Certification Page
2
Court Transcript Index
3
Documents Related to Administrative Process Including Transcript of Oral Hearin
4
Payment Documents and Decisions
5
Jurisdictional Documents and Notices
6
Non Disability Related Development
7
Disability Related Development
8
Medical Records Part 1
9
Medical Records Part 2
9 Attachments
13
11/17/2017
OPENING BRIEF by Terry Orsburn.
14
12/18/2017
RESPONSE BRIEF by Commissioner of Social Security Administration.
15
01/02/2018
REPLY BRIEF by Terry Orsburn Reply Brief in Support of Social Security Appeal.
16
08/24/2018
Order
17
08/24/2018
Clerks Judgment
Would you like this case removed from DocketBird? Request removal.