Ott v. Commissioner of Social Security Administration
Court Docket Sheet

District of Arizona

3:2017-cv-08051 (azd)

COMPLAINT filed by Dennis Lee Ott. (submitted by Howard Olinsky)

Case 3:17-cv-08051-SPL Document 1 Filed 03/14/17 Page 1 of 8 1 Howard D. Olinsky 2 Olinsky Law Group One Park Place 3 300 South State Street 4 Suite 420 Syracuse, NY 13202 5 N.Y. Bar No. 2044865 6 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 7 holinsky@windisability.com 8 Attorney for Plaintiff Dennis Lee Ott 9 10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 11 PRESCOTT DIVISION 12 DENNIS OTT,) NO. 13 Soc. Sec. #XXX-XX-5472,) 14 Plaintiff,) 15) v.) COMPLAINT 16) NANCY A. BERRYHILL, acting 17) Commissioner of Social Security,) 18 Defendant.) 19) 20 Plaintiff, Dennis Lee Ott, by his attorney, Howard D. Olinsky, alleges as follows: 21 22 1. The jurisdiction of this Court is invoked pursuant to 42 U.S.C. §§ 405(g) to 23 review a decision of the Commissioner of Social Security denying Plaintiffs application 24 for Social Security Disability Insurance benefits for lack of disability. 25 26 2. This action is an appeal from a final administrative decision denying 27 Plaintiff's claim. 28 Case 3:17-cv-08051-SPL Document 1 Filed 03/14/17 Page 2 of 8 1 3. This action is commenced within the appropriate time period set forth in 2 attached Appeals Council Notice dated January 11,2017. (Exhibit A). 3 4 4. Plaintiff, whose social security number is XXX..XX-S472, resides in 5 Kingman, Mohave 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 findings 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 under the provisions of the Social Security Act; or 20 21 2. Remand the case for a further hearing; 22 3. Award attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 23 2412, on the grounds that the Commissioner's action in this case was not substantially 24 25 justified; and 26 4. Order such other and further relief as the Court deems just and proper. 27 Dated this 14th day of March, 2017. 28 Case 3:17-cv-08051-SPL Document 1 Filed 03/14/17 Page 3 of 8 1 BY: 2 Attorney for Plaintiff 3 (Pending Admission Pro Hac Vice) 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 Case 3:17-cv-08051-SPL Document 1 Filed 03/14/17 Page 5 of 8 •--IIiIIIIIIII IIIIIIIIIII I I IIIIIIIIIII Judgets is cue. as we I reasons: is i or I \II,i \II 41) is an error n.ot I•.. or •.. • is 2 ''''.,....••...,'li0ii' States the Social SeQUity It Case 3:17-cv-08051-SPL Document 1 Filed 03/14/17 Page 7 of 8 3-• iii 4(0) (i) If you have any questions, calJOl' I I I I,I I I! Case 3:17-cv-08051-SPL Document 1 Filed 03/14/17 Page 8 of 8 II-I! I I Iij i Ie!

Civil Cover Sheet

Case 3: 17-cv-08051-SPL Document 1-2 Filed 03/14/17. Page 1 of 2 http://www.azd. uscourts.gov/cgi-bin/generate _ civil _ js44. p://WWW.azd. USCOUT g I UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA I I 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. PROMKA 1 I best gekregen I I 1 I t e T Negara fasts ਉਲਸ਼ i e lause Annars I I t t I I 1 QEgin A the Complaint or Notice of Removal. I i I t I i Mattew Award: Miamissisw: www.agtatax * * Hoitumindig erweiterticarameter starte osvaiwan. resenta untuk uyaror' * ' 7 www' YWVINCwrwolaet Mwanawiwitan divinitatem:-dixxipHLETHRAS-ARAWyawnwitwie nguvugu pwywRwmpwncwmwdxuntoreriawn-amarga wewritt Arweinwurmstvomwwtimi, *-* *-* * um, olykott. t i f 1 I Plaintiff ($): Dennis Lee Ott County of Residence: Mohave County Where Claim For Relief Arose: Mohave Defendant(s): Nancy A. Berryhill County of Residence: Mohave Defendant's Atty(s): Plaintiff's Atty(s): Howard D. Olinsky, Esq. Olinsky Law Group 300 South State Street, Ste. 420 Syracuse, New York 13202 315-701-5780 I i t t Yaxw. wiwcevis ratoviinaindiaradw hArwr mavsumidaurr, NON Apanyuwayuun. isWrannweerror rewaver inte NAENKELTSTYRissoisin, akivais > Rwww.arpatsionsboxacisteswetgewNaryshtering rasyon. Krewrnvadem ni: Mapindheidswiu AmerAIPINGGIRIMLAMADAMAWNMueriawawymirumam viviparusan WEAM. 272xyxwevernomorfa (erant. alaga Neraciya% JEJA >: wikkenin' gara IFP REQUESTED awaenodesmused II. Basis of Jurisdiction: 2. U. S. Government Defendant VeInne t f III. Citizenship of Principal Parties (Diversity Cases Only) Plaintiff:-N/A Defendant:-N/A 4 IV. Origin: I a i I g Y V. Nature of Suit: I 4 DD VI. Cause of Action: 4 I ANTARA i L I i I • RAS t I ISUra t VII. Requested in Complaint Class Action: No Dollar Demand: 1 of 2 3/14/2017 9: 14 AM Case 3: 17-cv-08051-SPL Document 1-2 Filed 03/14/17 Page 2 of 2 http://www.azd. uscourts.gov/cgi-bin/generate _ civil _ js44. f Jury Demand: No VIII. This case is not related to another case. I I I vonne C19 ww' rxKobin was via. Essa: w: iro. e' 424 napraxw, yirik ki, AWAv * * * nya. Hins with a car veier; w. koyu. c. ns-iain:: 20EM wintingimu, naimisiin:: 4 > yrat fakulteticii, in mereka. Piy. mw.. AYRAXECTXIAXA44444 fontsize:. no. h. wa Ayaw 11, '. who. Rawsont > * wewateAL' avvissuten muntreuungat matan Wedhato' vy Poker. contains i g I fos 1 Owara Post Date: 3/14/2017 S Incor OUT 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 3/14/2017 9: 14 AM

APPLICATION for Leave to Proceed In Forma Pauperis (Long Form) by Dennis Lee Ott. (submitted by Howard Olinsky)

Case 3:17-cv-08051-SPL Document 2 Filed 03/14/17 Page 1 of 5 Page I of 5 AO 239 (Rev. 01/15) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) UNITED STATES DISTRICT COURT for the District of Arizona DENNISS LEE OTT) Plaintiff/Petitioner) V.) Civil Action No. NANCY A. BERRYHILL, ACTING COMM. OF SS) Defendant/Respondent) APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (Long Form) Affidavit in Support of the Application Instructions I am a plaintiff or petitioner in this case and declare Complete all questions in this application and then sign it. that 1 am unable to pay the costs of these proceedings Do not leave any blanks: if the answer to a question is "0," and that I am entitled to the relief requested. 1 declare "none," or "not applicable (N/A)," write that response. If under penalty of perjury that the information below is you need more space to answer a question or to explain your true and understand that a false statement may result in answer, attach a separate sheet of paper identified with your a dismissal of my claims. X/o name, your case's docket number, and the question number. Signed: Date: 02/24/2017 For both you and your spouse estimate the average amount of money received from each of the following sources during the past 12 months. Adjust any amount that was received weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross amounts, that is, amounts before any deductions for taxes or otherwise. Income source Average monthly income Income amount expected amount during the past 12 next month months You Spouse You Spouse Employment $ O $ o $ Self-employment $ (J $ $ Q S Income from real property (such as rental income) $ o $ $ o $ Interest and dividends S O $ S o $ Gifts S O S $ o $ Alimony $ O S $ o $ Child support $ O $ $ CP $ Case 3:17-cv-08051-SPL Document 2 Filed 03/14/17 Page 2 of 5 Page 2 of 5 AO 239 (Rev. 01/15) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) Retirement (such as social security, pensions, annuities, insurance) $ i <s o o $ $ ^ Op Q AVC) $ \ Disability (such as social security, insurance payments) $ $ ^ $ $ O Unemployment payments $ O $ $ ^ $ Public-assistance (such as welfare) $ 0 $ $ o $ Other (specify)'. $ 0 $ $ o $ Total monthly income: $ i fioojr^d $ 0.00 $ i,0 00 $ 0.00 List your employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.) Employer Address Dates of employment Gross monthly pay $-L. Kcwg— wo "t' ooorke-d/g/z&\ z $ List your spouse's employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.) Employer Address Dates of employment Gross monthly pay $ MA $ $ How much cash do you and your spouse have? $ 2.2. Below, state any money you or your spouse have in bank accounts or in any other financial institution. Financial institution Type of account Amount you have Amount your spouse has $ $ £*0 j ft yj-ZJ $ $ $ $ If you are a prisoner, you must attach a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months in your institutional accounts. If you have multiple accounts, perhaps because you have been in multiple institutions, attach one certified statement of each account. Case 3:17-cv-08051-SPL Document 2 Filed 03/14/17 Page 3 of 5 Page 3 of 5 AO 239 (Rev. 01/15) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) List the assets, and their values, which you own or your spouse owns. Do not list clothing and ordinary household furnishings. Assets owned by you or your spouse Home (Value) $ 0 Other real estate (Value) $ O Motor vehicle #/(Value) $ U J-,000 Make and year: "LocA C.Wvn-rkrV Model: S \ Wg-yaAxs v'v ^ VA n Registration #: Motor vehicle #2 (Value) $ 0 Make and year: Model: Registration #: Other assets (Value) $ O Other assets (Value) $ & 6. State every person, business, or organization owing you or your spouse money, and the amount owed. Person owing you or your spouse Amount owed to you Amount owed to your spouse money Ki/A $ $ $ $ $ $ State the persons who rely on you or your spouse for support. Name (or, if under 18, initials only) Relationship Age Case 3:17-cv-08051-SPL Document 2 Filed 03/14/17 Page 4 of 5 Page 4 of 5 AO 239 (Rev. 01/15) Application lo Proceed in District Court Without Prepaying Fees or Costs (Long Form) 8. Estimate the average monthly expenses of you and your family. Show separately the amounts paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. You Your spouse (R^enfr or home-mortgage payment (including lot rented for mobile home) Are real estate taxes included? • Yes • No $ $ Is property insurance included? • Yes • No/jy^ Utilities (electricity, heating fuel, water, sewer, and telephone) $ $.54^/wo Home maintenance (repairs and upkeep) $ $ £1 $ $ Food Co5 j Clothing $ $ O Laundry and dry-cleaning $ Q s Medical and dental expenses $ $ O $ Transportation (not including motor vehicle payments) s 0 Recreation, entertainment, newspapers, magazines, etc. $ O $ Insurance (not deducted from wages or included in mortgage payments) Homeowner's or renter's: $ s CD $ Life: $ ^ $ $ Health: O $ $ Motor vehicle: $ Other: s o Taxes (not deducted from wages or included in mortgage payments) (specify): $ o $ Installment payments $ Motor vehicle: $ o $ S Credit card (name): 0 $ Department store (name): s/) Other: * q $ Alimony, maintenance, and support paid to others $ o $ Case 3:17-cv-08051-SPL Document 2 Filed 03/14/17 Page 5 of 5 Page 5 of 5 AO 239 (Rev. 01/15) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) Regular expenses for operation of business, profession, or farm (attach detailed $ statement) n $ Other (specify)'. $ Q $ Total monthly expenses: s/mo s 0.00 Do you expect any major changes to your monthly income or expenses or in your assets or liabilities during the next 12 months? • Yes No If yes, describe on an attached sheet. 10. Have you spent — or will you be spending — any money for expenses or attorney fees in conjunction with this lawsuit? • Yes—C^No If yes, how much? $ 11. Provide any other information that will help explain why you cannot pay the costs of these proceedings. T Zsu-^ \ \S C v-\. ONJ V-O—W C c s^/— r Oo \ VV-— ^^ l^COTVvC-12. Identify the city and state of your legal residence. Kingman, AZ Your daytime phone number: (928) 727-8885 Your age: 64 Your years of schooling:

SUMMONS Submitted by Dennis Lee Ott. (submitted by Howard Olinsky)

Case 3: 17-cv-08051-SPL Document 3 Filed 03/14/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action Domneva, MYANMAMINIWAmitripensowevereuxDINAVINIERONIMENTEERIOPHORURTEIDENHOIDMIEJSRYOTAWOWA IMAMOWAmmattitairmon OPEWNIENIE DOLNA NEunemecepit wwwTAN WETANANARAMANLAMAMAHAYArietumumunswmwwwww YKSIDATIFIKIMIMOUVAINTONIMLARLAMA INI DIRILDI. N. matchew. W WIEKKOpocznou UNITED STATES DISTRICT COURT for the District of Arizona DENNIS LEE OTT Plaintiff(s) V. Civil Action No. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION I 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: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 + If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 3: 17-cv-08051-SPL Document 3 Filed 03/14/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. BARSETYny Monetke UGA WAKATIRADO DEVENINDOTTOONTYDDurminnkakaw MAAARMAILEVATOR RORAIMEKAISARAN DrulutwWISTYMuntwawulwww www.waptuitiivsekitymowie IVRCHLIGIERILEVANTITRINMONTANAMOODID 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) e SummOINS 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 (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, who is O I served the summons on (name of individual) 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 O Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

Summons

Case 3: 17-cv-08051-SPL Document 3-1 Filed 03/14/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action WWW AMEES mwENTIMEWEKWAwamewopmewHOVAVO-HNItneruowwwwwwwwwwwwwwwwwwwwwwwww my-Leeuwenyempunwmwwwwwwww.www www wwwwwwwwwwwwwwww catalomtumwwwwwwwwwmwamumumkan pada suhuwun Nuwun SIGIT remotak S. niweruonostocoDLALU MINNAARWNINMAMIWYDAWANEKuwaryum. MAMAwwi menika wontemIWITEITHIWYDIPPINAR DELWEk was numuwan Maria Eliyotokromo E. m. SNAIPERINIOETSWEDSMINDENDE DOMINUMNWIROWIETRuhm www www www mitmewwietrowsutvaktstovremenom rumouksw. www.mes e UNITED STATES DISTRICT COURT for the District of Arizona DENNIS LEE OTT Plaintiff(s) V. Civil Action No. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION I 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: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 3: 17-cv-08051-SPL Document 3-1 Filed 03/14/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. CAMPIRE ROMAIN. Cymetrgyle yakho YINCH.. PORENET SYYTTAKRINOREDRADINAMAKANAL IRANSKSITYISTA YHTERGWERIComuk Bintutestitas " Now. www talkoristimore SIVERSEELOWHITE SERMERIDIANI PLANOWANIU NOWNEDWIE PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (0)) 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 (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, who is O I served the summons on (name of individual) 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 O Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. i Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc: I

Summons

Case 3: 17-cv-08051-SPL Document 3-2 Filed 03/14/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action F UNITED STATES DISTRICT COURT for the District of Arizona pod t i na DENNIS LEE OTT Plaintiff(s) اب سب سد سد س م 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: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 3: 17-cv-08051-SPL Document 3-2 Filed 03/14/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. TATARSTATeodorGNUNTUMATRADIOAMATINTINDIHARAPPAHAMBOROVon AVENIMAN PUNIKA WONTROPONIMIKROKONTFOmroewewiswononosovoudioalbumeistars cubacitiskwavuluwatumammummam rakstiemodelavcardorurawawurowaWinnewangan Minta vuotta MWILAxueve PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (0)) i 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 (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, who is O I served the summons on (name of individual) 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 J Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

This case has been assigned to the Honorable Steven P Logan. All future pleadings or documents should bear the correct case number: CV-17-08051-PCT-SPL. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached.

Case 3:17-cv-08051-SPL Document 4 Filed 03/14/17 Page 1 of 1 AO 85 (Rev. 8/97) Notice, Consent, and Order of Reference-Exercise of Jurisdiction by a United States Magistrate Judge (For Use In Civil Cases With District Judge as Presider) UNITED STATES DISTRICT COURT _______________________________ District of __________________________________________________ NOTICE, CONSENT, AND ORDER OF REFERENCE-Plaintiff EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE v. Case Number: Defendant NOTICE OF AVAILABILITY OF A UNITED STATES MAGISTRATE JUDGE TO EXERCISE JURISDICTION In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P.73, you are hereby notified that a United States magistrate judge of this district court is available to conduct any or all proceedings in this case including a jury or nonjury trial, and to order the entry of a final judgment. Exercise of this jurisdiction by a magistrate judge is, however, permitted only if all parties voluntarily consent. You may, without adverse substantive consequences, withhold your consent, but this will prevent the court’s jurisdiction from being exercised by a magistrate judge. If any party withholds consent, the identity of the parties consenting or withholding consent will not be communicated to any magistrate judge or to the district judge to whom the case has been assigned. An appeal from a judgment entered by a magistrate judge shall be taken directly to the United States court of appeals for this judicial circuit in the same manner as an appeal from any other judgment of a district court. CONSENT TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case hereby voluntarily consent to have a United States magistrate judge conduct any and all further proceedings in the case, including the trial, order the entry of a final judgment, and conduct all post-judgment proceedings. Signatures Party Represented Date _____________________________________ __________________________________ ____________________ _____________________________________ __________________________________ ____________________ _____________________________________ __________________________________ ____________________ _____________________________________ __________________________________ ____________________ ORDER OF ASSIGNMENT IT IS HEREBY ORDERED that this case be assigned to ______________________________________________________ United States Magistrate Judge, for all further proceedings and the entry of judgment in accordance with 28 U.S.C. 636(c), Fed.R.Civ.P. 73 and the foregoing consent of the parties. All further documents filed with the court are to carry the following case number ________________________________________. ________________ _____________________________________________________________________________________ Date United States District Judge NOTE: RETURN THIS FORM TO THE CLERK OF THE COURT ONLY IF ALL PARTIES HAVE CONSENTED ON THIS FORM TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE.

ORDER granting [2] Motion for Leave to Proceed In Forma Pauperis. Plaintiff may proceed in forma pauperis without prepayment of costs or fees or the necessity of giving security. IT IS FURTHER ORDERED that Plaintiff shall be responsible for service by waiver or of the summons and complaint. Signed by Judge Steven P. Logan on 3/14/17.

Case 3:17-cv-08051-SPL Document 5 Filed 03/14/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8) No. CV-17-08051-PCT-SPL Dennis Lee Ott, 9)) Plaintiff,) ORDER 10) vs. 11)) Commissioner of Social Security) 12 Administration,) 13)) Defendant.) 14 15 Before the Court is Plaintiff’s Application to Proceed in District Court Without 16 Prepaying Fees or Costs (Doc. 2). Having considered the financial information contained 17 in the application and finding Plaintiff is unable to pay the costs of these proceedings, 18 IT IS ORDERED that the Application (Doc. 2) is granted. Plaintiff may proceed 19 in forma pauperis without prepayment of costs or fees or the necessity of giving security. 20 IT IS FURTHER ORDERED that Plaintiff shall be responsible for service by 21 waiver or of the summons and complaint. 22 Dated this 14th day of March, 2017. 23 24 Honorable Steven P. Logan United States District Judge 25 26 27 28

SCHEDULING ORDER (See Order for details). Signed by Judge Steven P. Logan on 3/14/17.

Case 3:17-cv-08051-SPL Document 6 Filed 03/14/17 Page 1 of 3 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8) Dennis Lee Ott, No. CV-17-08051-PCT-SPL 9)) Plaintiff,) SCHEDULING ORDER 10) vs. 11)) Commissioner of Social Security) 12) Administration, 13)) Defendant.) 14) 15 16 Plaintiff seeks judicial review and reversal of the final decision of the 17 Commissioner of the Social Security Administration. Pursuant to Rule 16.2 of the Local 18 Rules of Civil Procedure ("LRCiv"), Rules of Practice of the U.S. District Court for the 19 District of Arizona,1 the Court enters this Scheduling Order. Accordingly, 20 IT IS ORDERED: 21 1. That the parties must fully comply with LRCiv 16.1 in its entirety as 22 follows: 23 (a) Opening Brief. Within sixty (60) days after the answer is filed, Plaintiff must file an opening brief addressing why 24 the Commissioner’s decision is not supported by substantial evidence or why the decision should otherwise be reversed or 25 the case remanded. Plaintiff’s opening brief must set forth all errors which Plaintiff contends entitle him or her to relief. 26 27 1 The Clerk of Court assigned this case to the expedited track pursuant to LRCiv 16.2(b)(1)(A)(i), and the deadlines in this action are therefore set without holding a 28 scheduling conference. The local rules may be found at: http://www.azd.uscourts.gov/local-rules. Case 3:17-cv-08051-SPL Document 6 Filed 03/14/17 Page 2 of 3 1 The brief must also contain, under appropriate headings and in the order indicated below, the following: 2 (1) A statement of the issues presented for review, set forth 3 in separate numbered paragraphs. 4 (2) A statement of the case. This statement should indicate briefly the course of the proceedings and its disposition at the 5 administrative level. 6 (3) A statement of facts. This statement of the facts must include Plaintiff’s age, education, and work experience; a 7 summary of the physical and mental impairments alleged; a brief outline of the medical evidence; and a brief summary of 8 other relevant evidence of record. Each statement of fact must be supported by reference to the page in the record 9 where the evidence may be found. 10 (4) An argument. The argument, which may be preceded by a summary, must be divided into sections separately treating 11 each issue. Each contention must be supported by specific reference to the portion of the record [by reference to 12 specific page numbers] relied upon and by citations to statutes, regulations, and cases supporting Plaintiff’s 13 position. If any requested remand is for the purpose of taking additional evidence, such evidence must be described in the 14 opening brief, and Plaintiff’s argument must show that the additional evidence is material and that there is good cause 15 for the failure to incorporate such evidence into the record in a prior proceeding. If such additional evidence is in the form 16 of a consultation examination sought at Government expense, Plaintiff’s opening brief must make a proffer of the nature of 17 the evidence to be obtained. 18 (5) A short conclusion stating the relief sought. 19 (b) Answering Brief. Defendant must file an answering brief within thirty (30) days after service of Plaintiff’s opening 20 brief. Defendant’s brief must (1) respond specifically to each issue raised by Plaintiff and (2) conform to the 21 requirements set forth above for Plaintiff’s brief, except that a statement of the issues, a statement of the case and a 22 statement of the facts need not be made unless Defendant is dissatisfied with Plaintiff’s statement thereof. 23 (c) Reply Brief. Plaintiff may file a reply brief within fifteen 24 (15) days after service of Defendant’s answering brief. 25 (d) Length of Briefs. Unless otherwise ordered by the Court, the opening and answering briefs may not exceed twenty-five 26 (25) pages, including any statement of facts, with the reply brief limited to eleven (11) pages. The case will be deemed 27 submitted as of the date on which Plaintiff’s reply brief is filed or due. 28 2 Case 3:17-cv-08051-SPL Document 6 Filed 03/14/17 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 5 LRCiv 16.1(a)-(e) (emphasis added). 6 2. That, in presenting any issue for review, a general allegation that the 7 Commissioner committed legal error, or that the Commissioner’s determination is not 8 supported by substantial evidence, is insufficient to raise that issue;2 9 3. That, if either party fails to timely file a brief in full compliance with this 10 Order, the Court may strike the non-complying brief, dismiss the case, or remand to the 11 agency, as appropriate;3 and 12 4. That Plaintiff shall serve Defendant with a copy of this Order within fifteen 13 (15) days of any appearance. 14 Dated this 14th day of March, 2017. 15 16 Honorable Steven P. Logan United States District Judge 17 18 19 20 21 22 23 2 24 See Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (explaining that the Commissioner’s decision to deny benefits would be overturned "only if it is not 25 supported by substantial evidence or is based on legal error"); Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (explaining that the court "review[s] only issues which are 26 argued specifically and distinctly in a party’s opening brief[,]… will not manufacture arguments for [a party], and a bare assertion does not preserve a claim") (internal citation 27 omitted); LRCiv 16.1. 3 28 See generally Fed. R. Civ. P. 41(b). 3

MOTION for Admission Pro Hac Vice as to attorney Howard D. Olinsky by Dennis Lee Ott.

Case 3: 17-cv-08051-SPL Document 7 Filed 03/15/17 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT I I poice II S I sk DENNIS LEE OTT I S A... ಏಷ I i t i ܠܚ I I T * het I P I a C UTSUant CASE NO: 3: 17-cv-08051-SPL VS, NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Vice Pursuant to LRCiv 83. 1 (b) (2) Defendant(s)/Respondent(s) NOTICE: $ 50. 00 APPLICATION FEE REQUIRED! Howard D. Olinsky, hereby apply to the Court under LRCiv 83. 1 (b) (2) for pro hac vice admission to appear and practice in this action on behalf of Dennis Lee Ott t-NA ENAKOPRS SYKDeventer. Resses. svg I $ F E ра 0 f t a I E S F i I e: Suite: City and State of Principal Residence: Manlius, New York Firm Name: Olinsky Law Group Address: 300 S. State St., Ste. 420 Syracuse Firm/Business Phone: (315, 701-5780 Firm Fax Phone: (315, 701-5781 i t State: * NY Zip: 13202 I ne: E-mail address: holinsky@windisability.com TESS. I am admitted to practice before the following courts. (attach additional sheets if necessary) TITLE OF COURT DATE OF ADMISSION Please see attached sheet IN GOOD STANDING? OYes O No * Yes O No * DYes O No * * Explain: E 0 pe ConCU S t (An Original Certificate of Good Standing froma FEDERAL BAR in which an applicant has been admitted dated no more than 45 days prior to submission of this application is required.) I have concurrently, or within I year of this application, made pro hac vice applications to this Court in the following actions (attach additional sheets if necessary): Case Number Please see attached sheet ੴਸਝੈ C G I 1 T i * * E a D TTT F I I Y ALL APPLICANTS ARE REQUIRED TO ANSWER THE FOLLOWING QUESTIONS. If you answer YES to either of the following questions, please explain all circumstances on a separate page. Are you currently the subject of a disciplinary investigation or proceeding by any Bar or Court? D Yes No Have you ever been disbarred from practice in any Court? OYes 7 No I declare under penalty of perjury that the foregoing is true and correct; that I am not a resident of, nor and regularly employed, engaged in business, professional or other activities in the State of Arizona; and that I am not currently suspended, disbarred or subject to disciplinary proceedings in any court. I certify that I have read and will ascribe to the Standards for Professional Conduct, will comply with the Rules of Practice of the United States District Court for the District of Arizona (" Local Rules "), and will subscribe to receive court notices as required by LRCiv 83. 1 (e). 3/15/2017 s/Howard D. Olinsky Signature of Applicant Date Fee Receipt # i t (Rev. 04/12) Case 3: 17-cv-08051-SPL Document 7 Filed 03/15/17 Page 2 of 4 t i i a t Attachment to Application of Attorney For Admission To Practice Pro Hac Vice Pursuant to LRCiv 83. 1 (b) (2) I, Howard D. Olinsky, am admitted to practice before the following courts: T I t i Court Date of Admission In Good Standing? i I OU 10 UIT} rwarrera:... Bavarswatersrandes estrangersfonteiramente des Vaters pa d' Ély. a New York State 02/07/1986 State of Georgia 01/23/2014 United States Supreme Court 04/01/1991 Court of Appeals for 2nd Circuit 11/01/2002 Court of Appeals for 6th Circuit 10/15/2013 Court of Appeals for 11th Circuit 4/4/2016 Court of Appeals for Federal Circuit 06/12/2007 U. S. Court of Veteran's Appeals, Washington D. C. 06/12/2007 U. S. D. C., NDNY 04/22/1986 U. S. D. C., WDNY 01/29/2001 U. S. D. C., EDNY 03/21/2003 U. S. D. C., SDNY 03/25/2003 U. S. D. C., DCT 12/10/2010 U. S. D. C., NDFL 10/31/2011 U. S. D. C., EDMI 02/25/2013 U. S. D. C., WDMI 12/26/2013 U. S. D. C., EDTX 12/20/2013 U. S. D. C., EDAR 01/03/2014 U. S. D. C., WDAR 01/03/2014 U. S. D. C., MDGA 01/28/2014 U. S. D. C., NDIL 01/30/2014 U. S. D. C., NDGA 02/10/2014 U. S. D. C., EDWI 04/14/2014 U. S. D. C., NDTX 05/15/2014 U. S. D. C., DCO 06/18/2014 U. S. D. C., SDGA 06/02/2014 U. S. D. C., WDWI 07/03/2014 U. S. D. C., WDTX 09/15/2014 U. S. D. C., NDIN 08/04/2015 U. S. D. C., CDIL 09/24/2015 U. S. D. C., SDIL 09/25/2015 YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES YES 4 Case 3: 17-cv-08051-SPL Document 7 Filed 03/15/17 Page 3 of 4 Attachment to Application of Attorney For Admission To Practice Pro Hac Vice Pursuant to LRCiv 83. 1 (6) (2) Previous pro hac vice applications within previous twelve months: 1 I t 2: 15-cv-01928 Fernandez v. Colvin Granted 10/2/2015 2: 15-cv-02199 Greenfield v. Colvin Granted 11/24/2015 1 2: 15-cv-02439 Secor v. Colvin Granted 12/08/2015 2: 15-cv-02528 Jones v. Colvin Granted 12/21/2015 1 3: 16-cv-08017 Kinnex v. Colvin Granted 2/9/2016 3: 16-cy-08023 Simpson v. Colvin 1 Granted 2/12/2016 2: 16-cv-00372 Thompson v. Colvin Granted 2/16/2016 2: 16-cv-01072 Antunez v. Colvin Granted 4/22/2016 2: 16-cv-01392 Dallas v. Colvin Granted 5/17/2016 2: 16-cy-01460 Vosskuhler v. Colvin Granted 5/17/2016 4: 16-cv-00464 Servia v. Colvin Granted 7/15/2016 2: 16-cy-02430 Carlson v. Colvin Granted 8/02/2016 2: 16-cv-02699 Shepherd v. Colvin 1 Granted 8/16/2016 2: 16-cv-02840 Eveland v. Colvin Granted 8/25/2016 2: 16-cv-03391 Sesco v. Colvin Granted 10/12/2016 2: 16-cv-04047 Shaffer v. Colvin Granted 12/01/2016 3: 17-cv-08022 Gideon v. Berryhill Granted 2/17/2017 3: 17-cv-08027 Labrusciano v. Berryhill Granted 2/28/2017 Case 3: 17-cv-08051-SPL Document 7 Filed 03/15/17 Page 4 of 4 AO 136 (Rev. 10/13) Certificate of Good Standing Apenas posmuo. orssassa mereka kemanusiaan............................ WANNEERS............ Asdamp " SPREAD PREVEDERIKSIONUAN OED-tulatur. QUIA PRAWALPOLTOSINTECLERMONTATO REAL VIRIDICAT NA TIL................... NS... MIYAVIN I N NA MWANAMI KULA, ATITIRPINO IOIACHITARRISTEN WWE. ISTRIN ENTIONNAIRES DANS L' w. I UNITED STATES DISTRICT COURT for the Northern District of New York I t CERTIFICATE OF GOOD STANDING F F I R Lawrence K. Baerman, Clerk of this Court, certify that HOWARD D. OLINSKY 102297, Bar # was duly admitted to practice in this Court on April 22, 1986 2 W, and is in good standing as a member of the Bar of this Court. 1 Dated at Syracuse, New York (Location) March 6, 2017 (Date) Nemesinesia * * * * * ' IRAINA Maniyeninisme * SIEKY Keletion INTRIGA ispisakytisins er Friegesien vaimnieciskami * Graziy bierzerren * P Xizmierne * * * * Lawrence K. Baerman CLERK DEPUTY CLERK

Summons Issued as to SSA Office of General Counsel, U.S. Attorney and U.S. Attorney General.

Case 3: 17-cv-08051-SPL Document 8 Filed 03/15/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona * i t. t Zona DENNIS LEE OTT Plaintiff(s) V. Civil Action No.. ب ب س س س ا س س ا ب NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION I 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: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. ES DISTR; STA CLERK OF COURT URT Date: Signature of Cler. ISSUED ON 8: 34 am, Mar 15, 2017 s/Brian D. Karth, Clerk Case 3: 17-cv-08051-SPL Document 8 Filed 03/15/17 Page 2 of 2. AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. TATARSTATeodorGNUNTUMATRADIOAMATINTINDIHARAPPAHAMBOROVon AVENIMAN PUNIKA WONTROPONIMIKROKONTFOmroewewiswononosovoudioalbumeistars cubacitiskwavuluwatumammummam rakstiemodelavcardorurawawurowaWinnewangan Minta vuotta MWILAxueve PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (0)) i 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 (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, who is O I served the summons on (name of individual) 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 J 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

Case 3: 17-cv-08051-SPL Document 8-1 Filed 03/15/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action WWW AMEES mwENTIMEWEKWAwamewopmewHOVAVO-HNItneruowwwwwwwwwwwwwwwwwwwwwwwww my-Leeuwenyempunwmwwwwwwww.www www wwwwwwwwwwwwwwww catalomtumwwwwwwwwwmwamumumkan pada suhuwun Nuwun SIGIT remotak S. niweruonostocoDLALU MINNAARWNINMAMIWYDAWANEKuwaryum. MAMAwwi menika wontemIWITEITHIWYDIPPINAR DELWEk was numuwan Maria Eliyotokromo E. m. SNAIPERINIOETSWEDSMINDENDE DOMINUMNWIROWIETRuhm www www www mitmewwietrowsutvaktstovremenom rumouksw. www.mes e UNITED STATES DISTRICT COURT for the District of Arizona DENNIS LEE OTT Plaintiff(s) V. Civil Action No. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION I 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: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. 8 DISTR CLERK OF COURT RECT COU JINI FOURT Date: DISTRI Signature of Clerk ISSUED ON 8: 34 am, Mar 15, 2017 s/Brian D. Karth, Clerk Case 3: 17-cv-08051-SPL Document 8-1 Filed 03/15/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. CAMPIRE ROMAIN. Cymetrgyle yakho YINCH.. PORENET SYYTTAKRINOREDRADINAMAKANAL IRANSKSITYISTA YHTERGWERIComuk Bintutestitas " Now. www talkoristimore SIVERSEELOWHITE SERMERIDIANI PLANOWANIU NOWNEDWIE PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (0)) 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 (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, who is O I served the summons on (name of individual) 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 O Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. i Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc: I

Summons

Case 3: 17-cv-08051-SPL Document 8-2 Filed 03/15/17 Page 1 of 2. AO 440 (Rev. 06/12) Summons in a Civil Action Domneva, MYANMAMINIWAmitripensowevereuxDINAVINIERONIMENTEERIOPHORURTEIDENHOIDMIEJSRYOTAWOWA IMAMOWAmmattitairmon OPEWNIENIE DOLNA NEunemecepit wwwTAN WETANANARAMANLAMAMAHAYArietumumunswmwwwww YKSIDATIFIKIMIMOUVAINTONIMLARLAMA INI DIRILDI. N. matchew. W WIEKKOpocznou UNITED STATES DISTRICT COURT for the District of Arizona DENNIS LEE OTT Plaintiff(s) V. Civil Action No. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION I 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: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 + i 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. STRICT KTES DISSE K. S 03. CLERK OF COURT IINI Date: Signature of Clerk ISSUED ON 8: 33 am, Mar 15, 2017 s/Brian D. Karth, Clerk Case 3: 17-cv-08051-SPL Document 8-2 Filed 03/15/17 Page 2 of 2. AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. BARSETYny Monetke UGA WAKATIRADO DEVENINDOTTOONTYDDurminnkakaw MAAARMAILEVATOR RORAIMEKAISARAN DrulutwWISTYMuntwawulwww www.waptuitiivsekitymowie IVRCHLIGIERILEVANTITRINMONTANAMOODID 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) e SummOINS 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 (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, who is O I served the summons on (name of individual) 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 O Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

SERVICE EXECUTED filed by Dennis Lee Ott: Return of Service re: Summons, Complaint and Scheduling Order upon US Attorney's Office, Office of General Counsel, Attorney General on 4/7/2017.

Case 3:17-cv-08051-SPL Document 10 Filed 04/11/17 Page 1 of 6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DENNIS LEE OTT,) Plaintiff,) AFFIDAVIT OF) MAILING v.)) Civil Action No.: NANCY A. BERRYHILL, ACTING) 3:17-cv-08051-SPL COMMISSIONER OF SOCIAL SECURITY,) Defendant.)) STATE OF NEW YORK))ss. COUNTY OF ONONDAGA) Michelle E. Callahan, being duly sworn, deposes and says: That deponent is not a party to the action, is over 18 years of age and a Paralegal in the office of Olinsky Law Group, at: One Park Place, 300 S. State Street, Ste. 420, Syracuse, New York 13202 That on April 4, 2017, deponent served the SUMMONS COMPLAINT AND AND SCHEDULING Upon, United States Attorney's Office, District of Arizona, 2 Renaissance Sq., 40 N. Central Ave. Suite 1200, Phoenix, AZ 85004, address designated by said individual(s)/attorney(s) for that purpose by depositing same in a First Class, certified, return receipt, properly address envelope under the exclusive care and custody of the United States Postal Services within New York State. 'ichelle E. Callahan Sworn to before me on April 4, 2017.-J MMISSIONER OF DEEDS TAMICA LOCKWOOD Commissioner of Deeds Onondaga County, New York My Commission Expires: Dec. 31, Case 3:17-cv-08051-SPL Document 10 Filed 04/11/17 Page 2 of 6 Date Produced: 04/10/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0032 6137 91. Our records indicate that this item was delivered on 04/06/2017 at 01:44 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: Ott, D USAO Case 3:17-cv-08051-SPL Document 10 Filed 04/11/17 Page 3 of 6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DENNIS LEE OTT,) Plaintiff,) AFFIDAVIT OF) MAILING y#)) Civil Action No.: NANCY A. BERRYHILL, ACTING) 3:17-cv-08051-SPL COMMISSIONER OF SOCIAL SECURITY,) Defendant.)) STATE OF NEW YORK))ss. COUNTY OF ONONDAGA) Michelle E. Callahan, being duly sworn, deposes and says: That deponent is not a party to the action, is over 18 years of age and a Paralegal in the office of Olinsky Law Group, at: One Park Place, 300 S. State Street, Ste. 420, Syracuse, New York 13202 That on April 4, 2017, deponent served the SUMMONS AND COMPLAINT AND SCHEDULING ORDER Upon, Office of the Regional Chief Counsel, Region X, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA, 98104-7075, address designated by said individual(s)/attorney(s) for that purpose by depositing same in a First Class, postage paid, certified, return receipt, properly address envelope under the exclusive care and custody of the United States Postal Services within New York State. (1 Michelle E. Callahan Sworn to before me on April 4, 2017. > OMMISSIONER OF DEEDS TAMICA LOCKWOOD Commissioner of Deeds Onondaga County, New York My Commission Expires: Dec. 31, 2o (^ Case 3:17-cv-08051-SPL Document 10 Filed 04/11/17 Page 4 of 6 Date Produced: 04/10/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0032 6138 14. Our records indicate that this item was delivered on 04/06/2017 at 02:53 p.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: Ott, D OGC Case 3:17-cv-08051-SPL Document 10 Filed 04/11/17 Page 5 of 6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA) DENNIS LEE OTT,) Plaintiff,) AFFIDAVIT OF) MAILING v.)) Civil Action No.: NANCY A. BERRYHILL, ACTING) 3:17-cv-08051-SPL COMMISSIONER OF SOCIAL SECURITY,) Defendant.) STATE OF NEW YORK))ss. COUNTY OF ONONDAGA) Michelle E. Callahan, being duly sworn, deposes and says: That deponent is not a party to the action, is over 18 years of age and a Paralegal in the office of Olinsky Law Group, at: One Park Place, 300 S. State Street, Ste. 420, Syracuse, New York 13202 That on April 4, 2017, deponent served the SUMMONS AND COMPLAINT AND Upon, U.S. Attorney General, Constitution Avenue and 10th St., N.W., Washington, D.C. 20530, address designated by said individual(s)/attorney(s) for that purpose by depositing same in a First Class, certified, return receipt, postage paid, properly address envelope under the exclusive care and custody of the United States Postal Services within New York State./ -Tchelle E. Callahan Sworn to before me on April 4, 2017. 'MMISSIORER OF DEEDS TAMICA LOCKWOOD Commissioner of Deeds Onondaga County, New York, My Commission Expires: Dec. 31, Case 3:17-cv-08051-SPL Document 10 Filed 04/11/17 Page 6 of 6 Date Produced: 04/10/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0032 6138 45. Our records indicate that this item was delivered on 04/07/2017 at 08:41 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: Ott, D AG

NOTICE of Appearance by Ryan Ta Lu on behalf of Commissioner of Social Security Administration.

Case 3:17-cv-08051-SPL Document 11 Filed 06/06/17 Page 1 of 3 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Ryan Lu 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. OR105902 8 Fax: (206) 615-2531 ryan.lu@ssa.gov 9 Telephone: (206) 615-2034 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Dennis Lee Ott, No. CV-17-8051-PCT-SPL 14 15 Plaintiff, 16 DEFENDANT’S NOTICE OF vs. APPEARANCE 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 PLEASE TAKE NOTICE that Defendant Commissioner of Social Security 22 23 hereby notifies Plaintiff and this Court that the following Special Assistant U.S. 24 Attorney will appear as counsel of record in the above-captioned case: 25 26 27 28 Case 3:17-cv-08051-SPL Document 11 Filed 06/06/17 Page 2 of 3 1 Ryan Lu Special Assistant United States Attorney 2 Office of the General Counsel 3 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 4 Seattle, WA 98104-7075 5 State Bar No. OR105902 Fax: (206) 615-2531 6 ryan.lu@ssa.gov Telephone: (206) 615-2034 7 8 DATED this 6th day of June 2017. 9 Respectfully submitted, 10 11 ELIZABETH A. STRANGE Acting United States Attorney 12 District of Arizona 13 s/Ryan Lu 14 RYAN LU 15 Special Assistant United States Attorney 16 Of Counsel for the Defendant: 17 MATHEW W. PILE 18 Acting Regional Chief Counsel, Social Security Administration Office of the General Counsel, Region X 19 701 Fifth Avenue, Suite 2900 M/S 221A 20 Seattle, WA 98104-7075 21 22 23 24 25 26 27 28 2 Case 3:17-cv-08051-SPL Document 11 Filed 06/06/17 Page 3 of 3 1 2 3 CERTIFICATE OF SERVICE 4 5 I hereby certify that the foregoing Notice of Appearance was filed with the Clerk 6 of the Court on June 6, 2017, using the CM/ECF system which will send notification of 7 such filing to the following: Howard D Olinsky. 8 9 s/Paul Maestry-Williams 10 PAUL MAESTRY-WILLIAMS Paralegal Specialist 11 Office of the General Counsel 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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

Case 3:17-cv-08051-SPL Document 12 Filed 06/06/17 Page 1 of 4 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Ryan Lu 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. OR105902 8 Fax: (206) 615-2531 ryan.lu@ssa.gov 9 Telephone: (206) 615-2034 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Dennis Lee Ott, No. CV-17-08051-PCT-SPL 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 22 follows: 23 1. Defendant admits the allegations in paragraphs 1 and 2. 24 25 2. With respect to paragraph 3, Defendant admits that the Appeals Council issued a 26 notice on January 11, 2017, denying Plaintiff’s request for review. Defendant 27 neither admits nor denies that the copy of the Appeals Council’s notice, which 28 Case 3:17-cv-08051-SPL Document 12 Filed 06/06/17 Page 2 of 4 1 Plaintiff attached to the Complaint as Exhibit A, is a correct or complete copy of 2 that document. 3 3. With respect to paragraph 4, Defendant denies knowledge or information 4 5 sufficient to form a belief as to the truth of Plaintiff’s residence, and neither admits 6 nor denies the accuracy of the last four digits of Plaintiff’s social security number. 7 4. Defendant admits the allegations in paragraph 5. 8 5. Paragraphs 6, 7, and 8 call for legal conclusions to which no response is required. 9 10 To the extent the Court requires a response, Defendant denies the allegations. 11 6. The remainder of the Complaint is a prayer for relief to which no response is 12 necessary. To the extent that a response is required, Defendant denies the 13 14 allegations and states that Plaintiff is not entitled to judgment or to the relief 15 sought. 16 7. With respect to Plaintiff’s request for attorney fees under the Equal Access to 17 18 Justice Act, should Plaintiff prevail and file an application for fees against the 19 United States in accordance with the requirements of 28 U.S.C. § 2412, enacted as 20 part of the Equal Access to Justice Act, the Commissioner reserves the right to 21 oppose any award under this statute. 22 23 8. Defendant denies all allegations of the Complaint not specifically admitted or 24 clarified. 25 9. In accordance with 42 U.S.C. § 405(g), Defendant files as part of the answer a 26 27 certified copy of the transcript of the record including the evidence upon which 28 Defendant based the challenged decision. 2 Case 3:17-cv-08051-SPL Document 12 Filed 06/06/17 Page 3 of 4 1 WHEREFORE, Defendant prays for judgment dismissing the Complaint, with 2 costs, and for judgment in accordance with 42 U.S.C. § 405(g), affirming Defendant’s 3 decision. 4 5 6 7 DATED this 6th day of June 2017. 8 Respectfully submitted, 9 10 ELIZABETH A. STRANGE Acting United States Attorney 11 District of Arizona 12 s/Ryan Lu 13 RYAN LU 14 Special Assistant United States Attorney 15 Of Counsel for the Defendant: 16 17 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 18 Office of the General Counsel, Region X 19 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 20 21 22 23 24 25 26 27 28 3 Case 3:17-cv-08051-SPL Document 12 Filed 06/06/17 Page 4 of 4 1 2 CERTIFICATE OF SERVICE 3 I hereby certify that the foregoing Answer was filed with the Clerk of the 4 Court on June 6, 2017, using the CM/ECF system, which will send notification of 5 6 such filing to the following: Howard D. Olisnky. 7 8 s/Paul Maestry-Williams 9 PAUL MAESTRY-WILLIAMS Paralegal Specialist 10 Office of the General Counsel 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

NOTICE of Filing Certified Copy of Administrative Transcript re: [12] Answer to Complaint filed by Commissioner of Social Security Administration.

Case 3:17-cv-08051-SPL Document 13 Filed 06/06/17 Page 1 of 2 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Ryan Lu 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. OR105902 8 Fax: (206) 615-2531 ryan.lu@ssa.gov 9 Telephone: (206) 615-2034 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Dennis Lee Ott, No. CV-17-08051-PCT-SPL 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 Ryan Lu, 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 3:17-cv-08051-SPL Document 13 Filed 06/06/17 Page 2 of 2 1 DATED this 6th day of June 2017. 2 3 Respectfully submitted, 4 ELIZABETH A. STRANGE 5 Acting United States Attorney District of Arizona 6 s/Ryan Lu 7 RYAN LU 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 June 22 6, 2017, using the CM/ECF system, which will send notification of such filing to 23 the following: Howard D. Olisnky. 24 25 26 s/Paul Maestry-Williams PAUL MAESTRY-WILLIAMS 27 Paralegal Specialist 28 Office of the General Counsel 2

002 Court Transcript Index

Case 3:17-cv-08051-SPL Document 13-2 Filed 06/06/17 Page 1 of 4 Court Transcript Index Civil Action Number: 3:17-CV-08051 Claimant: Dennis Lee Ott Account Number: 521-78-5472 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 01/11/2017 1-6 6 Appointment of Representative (1696), dated 05/23/2016 7-8 2 Claimant's Change of Address Notification (CHNGADD), dated 9 1 05/17/2016 AC Correspondence (ACCORR), dated 11/27/2015 10-16 7 Representative Correspondence (REPLTR), dated 11/05/2015 17-21 5 Request for Review of Hearing Decision/Order (HA 520), dated 22-23 2 10/21/2015 ALJ Hearing Decision (ALJDEC), dated 09/25/2015 24-46 23 Appointment of Representative (1696), dated 09/04/2013 47-48 2 Transcript of Oral Hearing (TRANHR), dated 04/21/2015 49-81 33 Exhibits Exhibit No. of No. Description Page No. Pages 1A Disability Determination Transmittal-T2 Initial, dated 82 1 07/16/2013 2A DDE PRTF DDS Dr. Sig./PRFC DDS Dr. Sig.-T2 Initial, dated 83-96 14 07/16/2013 3A Disability Determination Transmittal--T2 Recon, dated 97 1 01/29/2014 4A DDE PRTF DDS Dr. Sig./PRFC DDS Dr. Sig.-T2 Recon, 98-109 12 dated 01/29/2014 1B Notice of Disapproved Claim-T2, dated 07/16/2013 110-113 4 2B Representative Fee Agreement-Brad Myler, dated 114 1 08/03/2013 3B Appointment of Representative-Brad Myler, dated 09/04/2013 115 1 4B Request for Reconsideration, dated 09/04/2013 116 1 5B Notice of Reconsideration T2, dated 01/30/2014 117-119 3 6B Request for Hearing by ALJ, dated 02/28/2014 120 1 7B Request for Hearing by ALJ, dated 02/28/2014 121-122 2 8B Request for Hearing Acknowledgement Letter, dated 123-129 7 04/03/2014 9B Outgoing ODAR Correspondence, dated 10/10/2014 130-133 4 10B Objection to Video Hearing, dated 10/29/2014 134 1 11B Claimant's Change of Address Notification, dated 12/29/2014 135 1 12B Hearing Notice, dated 01/07/2015 136-155 20 13B Resume of Vocational Expert, dated 03/11/2015 156-163 8 14B Representative Fee Agreement, dated 04/24/2014 164 1 15B Appointment of Representative, dated 04/24/2014 165 1 DATE: May 18, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-08051-SPL Document 13-2 Filed 06/06/17 Page 2 of 4 Court Transcript Index Civil Action Number: 3:17-CV-08051 Claimant: Dennis Lee Ott Account Number: 521-78-5472 Exhibits Exhibit No. of No. Description Page No. Pages 16B Hearing Notice, dated 04/14/2015 166-167 2 17B Notice Of Hearing Reminder, dated 04/07/2015 168-173 6 18B Claimant's Change of Address Notification, dated 05/07/2015 174 1 1D New Hire, Quarter Wage, Unemployment Query (NDNH), 175-176 2 dated 10/16/2014 2D Certified Earnings Records, dated 10/16/2014 177-178 2 3D Detailed Earnings Query, dated 10/20/2014 179-183 5 4D Summary Earnings Query, dated 10/20/2014 184 1 5D New Hire, Quarter Wage, Unemployment Query (NDNH), 185 1 dated 03/18/2015 1E Disability Report-Field Office, dated 04/18/2013 186-188 3 2E Disability Report-Adult, dated 04/18/2013 189-199 11 3E Function Report-Adult, dated 05/26/2013, from OTT, 200-208 9 DENNIS LEE 4E Financial Management Service (FMS) Documents, dated 209-216 8 05/26/2013, from SUSAN C OTT-Wife 5E Work History Report, dated 05/27/2013, from OTT, DENNIS 217-224 8 LEE 6E Headache Questionnaire, dated 05/27/2013, from OTT, 225-226 2 DENNIS LEE 7E Disability Report-Field Office, dated 09/05/2013 227-228 2 8E Disability Report-Appeals, dated 09/16/2013 229-234 6 9E Function Report-Adult, dated 11/23/2013, from OTT, 235-242 8 DENNIS LEE 10E Disability Report-Field Office, dated 03/03/2014 243-244 2 11E Disability Report-Appeals, dated 03/03/2014 245-250 6 12E DDS Disability Worksheet, from DDS PHOEN AZ 251-256 6 13E DDS Disability Worksheet, from DDS PHOEN AZ 257-258 2 14E DDS Disability Worksheet, from OK DDS EST 259-262 4 15E ODAR Letter of Proposed Exhibits, dated 10/20/2014 263-265 3 16E Report of Contact, dated 12/09/2014 266 1 17E Resume of Vocational Expert, dated 04/11/2015, from Jeff 267-269 3 Cockrum 18E Medications, dated 04/21/2015 270-273 4 19E Proffer Correspondence, dated 05/26/2015 274-276 3 20E Proffer Correspondence, dated 06/22/2015 277-279 3 21E Representative Correspondence, dated 06/30/2015 280 1 22E Representative Brief 281-282 2 DATE: May 18, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-08051-SPL Document 13-2 Filed 06/06/17 Page 3 of 4 Court Transcript Index Civil Action Number: 3:17-CV-08051 Claimant: Dennis Lee Ott Account Number: 521-78-5472 Exhibits Exhibit No. of No. Description Page No. Pages 1F Office Visits, dated 08/30/2011 to 09/13/2011, from Wilson N. 283-285 3 Otero, M.D. 2F Office Visit, dated 02/07/2012, from RETINAL 286-288 3 CONSULTANTS OF ARIZONA 3F Office Visits, dated 02/13/2012 to 02/22/2012, from MOHAVE 289-295 7 SURGICAL ASSOCIATES 4F Eye Exam, dated 05/29/2012, from M. Paracha, M.D. 296-299 4 5F Office Visits, dated 09/11/2008 to 04/24/2013, from Desert 300-314 15 Family Eye Care 6F Office Visits, dated 09/07/2012 to 04/29/2013, from 315-410 96 REPRESENTATIVE SUPPLIED: KINGMAN 7F Office Visits, dated 09/05/2012 to 05/17/2013, from MAYO 411-424 14 CLINIC 8F Office Visits, dated 05/09/2012 to 05/20/2013, from MAYO 425-438 14 CLINIC HOSPITAL 9F Office Visits, dated 08/03/2011 to 06/12/2013, from 439-508 70 MOUNTAIN SHADOW FAMILY MEDICINE 10F Mental Status Exam, dated 06/21/2013, from HEATHER 509-515 7 NASH, PH.D. (BULLHEAD CITY) 11F Office Visits, dated 10/20/2011 to 06/27/2013, from 516-883 368 KINGMAN REGIONAL MEDICAL CENTER 12F Office Visits, dated 08/20/2012 to 06/27/2013, from PAUL 884-905 22 YAMAGUCHI MD 13F Office Visits, dated 08/20/2012 to 06/28/2013, from PAUL 906-928 23 YAMAGUCHI MD 14F Statement of Claimant or Other Person, dated 03/25/2014, 929 1 from Paul Yamaguchi, MD 15F Residual Functional Capacity Questionnaire, dated 930-931 2 03/28/2014, from Sungnam Joe, MD 16F Emergency Department Records, dated 10/12/2014, from 932-939 8 Auburn Medical Center/Multicare 17F Office after visit summary, dated 10/24/2014, from Auburn 940-942 3 Outpatient Clinic/Multicare 18F After Visit Summary w/MRI Results, dated 11/21/2014, from 943-946 4 Multicare Neuro Surg Clinic-Tacoma 19F Office Treatment Records, dated 02/04/2014 to 08/08/2014, 947-998 52 from Kingman Internal Medicine Associates 20F Office Treatment Records, dated 10/24/2014 to 10/24/2014, 999-1008 10 from Auburn Clinic: Santos Nilo MD 21F Office Treatment Records, dated 03/03/2015 to 03/03/2015, 1009-1010 2 from Seattle Pain Center 22F Office Treatment Records, dated 03/31/2015 to 04/30/2015, 1011-1018 8 from Seattle Pain Center DATE: May 18, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 3:17-cv-08051-SPL Document 13-2 Filed 06/06/17 Page 4 of 4 Court Transcript Index Civil Action Number: 3:17-CV-08051 Claimant: Dennis Lee Ott Account Number: 521-78-5472 Exhibits Exhibit No. of No. Description Page No. Pages 23F Office Treatment Records, dated 03/03/2015 to 05/14/2015, 1019-1035 17 from Seattle Pain Center 24F Office Treatment Records-chronic pain, head and neck 1036-1058 23 pain, headaches,, dated 03/03/2015 to 05/27/2015, from Seattle Pain Center DATE: May 18, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable.

003 Documents Related to Administrative Process Including Transcript of Oral He

Case 3:17-cv-08051-SPL Document 13-3 Filed 06/06/17 Page 1 of 82 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable Civil Action Number: 3:17-CV-08051 Claimant: Dennis Lee Ott Account Number: 521-78-5472 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 01/11/2017 1-6 6 Appointment of Representative (1696), dated 05/23/2016 7-8 2 Claimant's Change of Address Notification (CHNGADD), dated 9 1 05/17/2016 AC Correspondence (ACCORR), dated 11/27/2015 10-16 7 Representative Correspondence (REPLTR), dated 11/05/2015 17-21 5 Request for Review of Hearing Decision/Order (HA 520), dated 22-23 2 10/21/2015 ALJ Hearing Decision (ALJDEC), dated 09/25/2015 24-46 23 Appointment of Representative (1696), dated 09/04/2013 47-48 2 Transcript of Oral Hearing (TRANHR), dated 04/21/2015 49-81 33 DATE: May 18, 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

004 Payment Documents and Decisions

Case 3:17-cv-08051-SPL Document 13-4 Filed 06/06/17 Page 1 of 29 Payment Documents and Decisions Civil Action Number: 3:17-CV-08051 Claimant: Dennis Lee Ott Account Number: 521-78-5472 Exhibits Exhibit No. of No. Description Page No. Pages 1A Disability Determination Transmittal-T2 Initial, dated 82 1 07/16/2013 2A DDE PRTF DDS Dr. Sig./PRFC DDS Dr. Sig.-T2 Initial, dated 83-96 14 07/16/2013 3A Disability Determination Transmittal--T2 Recon, dated 97 1 01/29/2014 4A DDE PRTF DDS Dr. Sig./PRFC DDS Dr. Sig.-T2 Recon, 98-109 12 dated 01/29/2014 DATE: May 18, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109

005 Jurisdictional Documents and Notices

Case 3:17-cv-08051-SPL Document 13-5 Filed 06/06/17 Page 1 of 66 Jurisdictional Documents and Notices Civil Action Number: 3:17-CV-08051 Claimant: Dennis Lee Ott Account Number: 521-78-5472 Exhibits Exhibit No. of No. Description Page No. Pages 1B Notice of Disapproved Claim-T2, dated 07/16/2013 110-113 4 2B Representative Fee Agreement-Brad Myler, dated 114 1 08/03/2013 3B Appointment of Representative-Brad Myler, dated 09/04/2013 115 1 4B Request for Reconsideration, dated 09/04/2013 116 1 5B Notice of Reconsideration T2, dated 01/30/2014 117-119 3 6B Request for Hearing by ALJ, dated 02/28/2014 120 1 7B Request for Hearing by ALJ, dated 02/28/2014 121-122 2 8B Request for Hearing Acknowledgement Letter, dated 123-129 7 04/03/2014 9B Outgoing ODAR Correspondence, dated 10/10/2014 130-133 4 10B Objection to Video Hearing, dated 10/29/2014 134 1 11B Claimant's Change of Address Notification, dated 12/29/2014 135 1 12B Hearing Notice, dated 01/07/2015 136-155 20 13B Resume of Vocational Expert, dated 03/11/2015 156-163 8 14B Representative Fee Agreement, dated 04/24/2014 164 1 15B Appointment of Representative, dated 04/24/2014 165 1 16B Hearing Notice, dated 04/14/2015 166-167 2 17B Notice Of Hearing Reminder, dated 04/07/2015 168-173 6 18B Claimant's Change of Address Notification, dated 05/07/2015 174 1 DATE: May 18, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174

006 Non Disability Related Development

Case 3:17-cv-08051-SPL Document 13-6 Filed 06/06/17 Page 1 of 12 Non Disability Related Development Civil Action Number: 3:17-CV-08051 Claimant: Dennis Lee Ott Account Number: 521-78-5472 Exhibits Exhibit No. of No. Description Page No. Pages 1D New Hire, Quarter Wage, Unemployment Query (NDNH), 175-176 2 dated 10/16/2014 2D Certified Earnings Records, dated 10/16/2014 177-178 2 3D Detailed Earnings Query, dated 10/20/2014 179-183 5 4D Summary Earnings Query, dated 10/20/2014 184 1 5D New Hire, Quarter Wage, Unemployment Query (NDNH), 185 1 dated 03/18/2015 DATE: May 18, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 175 176 177 178 179 180 181 182 183 184 185

007 Disability Related Development

Case 3:17-cv-08051-SPL Document 13-7 Filed 06/06/17 Page 1 of 98 Disability Related Development Civil Action Number: 3:17-CV-08051 Claimant: Dennis Lee Ott Account Number: 521-78-5472 Exhibits Exhibit No. of No. Description Page No. Pages 1E Disability Report-Field Office, dated 04/18/2013 186-188 3 2E Disability Report-Adult, dated 04/18/2013 189-199 11 3E Function Report-Adult, dated 05/26/2013, from OTT, 200-208 9 DENNIS LEE 4E Financial Management Service (FMS) Documents, dated 209-216 8 05/26/2013, from SUSAN C OTT-Wife 5E Work History Report, dated 05/27/2013, from OTT, DENNIS 217-224 8 LEE 6E Headache Questionnaire, dated 05/27/2013, from OTT, 225-226 2 DENNIS LEE 7E Disability Report-Field Office, dated 09/05/2013 227-228 2 8E Disability Report-Appeals, dated 09/16/2013 229-234 6 9E Function Report-Adult, dated 11/23/2013, from OTT, 235-242 8 DENNIS LEE 10E Disability Report-Field Office, dated 03/03/2014 243-244 2 11E Disability Report-Appeals, dated 03/03/2014 245-250 6 12E DDS Disability Worksheet, from DDS PHOEN AZ 251-256 6 13E DDS Disability Worksheet, from DDS PHOEN AZ 257-258 2 14E DDS Disability Worksheet, from OK DDS EST 259-262 4 15E ODAR Letter of Proposed Exhibits, dated 10/20/2014 263-265 3 16E Report of Contact, dated 12/09/2014 266 1 17E Resume of Vocational Expert, dated 04/11/2015, from Jeff 267-269 3 Cockrum 18E Medications, dated 04/21/2015 270-273 4 19E Proffer Correspondence, dated 05/26/2015 274-276 3 20E Proffer Correspondence, dated 06/22/2015 277-279 3 21E Representative Correspondence, dated 06/30/2015 280 1 22E Representative Brief 281-282 2 DATE: May 18, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282

008 Medical Records Part 1

Case 3:17-cv-08051-SPL Document 13-8 Filed 06/06/17 Page 1 of 234 Medical Records Civil Action Number: 3:17-CV-08051 Claimant: Dennis Lee Ott Account Number: 521-78-5472 Exhibits Exhibit No. of No. Description Page No. Pages 1F Office Visits, dated 08/30/2011 to 09/13/2011, from Wilson N. 283-285 3 Otero, M.D. 2F Office Visit, dated 02/07/2012, from RETINAL 286-288 3 CONSULTANTS OF ARIZONA 3F Office Visits, dated 02/13/2012 to 02/22/2012, from MOHAVE 289-295 7 SURGICAL ASSOCIATES 4F Eye Exam, dated 05/29/2012, from M. Paracha, M.D. 296-299 4 5F Office Visits, dated 09/11/2008 to 04/24/2013, from Desert 300-314 15 Family Eye Care 6F Office Visits, dated 09/07/2012 to 04/29/2013, from 315-410 96 REPRESENTATIVE SUPPLIED: KINGMAN 7F Office Visits, dated 09/05/2012 to 05/17/2013, from MAYO 411-424 14 CLINIC 8F Office Visits, dated 05/09/2012 to 05/20/2013, from MAYO 425-438 14 CLINIC HOSPITAL 9F Office Visits, dated 08/03/2011 to 06/12/2013, from 439-508 70 MOUNTAIN SHADOW FAMILY MEDICINE 10F Mental Status Exam, dated 06/21/2013, from HEATHER 509-515 7 NASH, PH.D. (BULLHEAD CITY) DATE: May 18, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515

009 Medical Records Part 2

Case 3:17-cv-08051-SPL Document 13-9 Filed 06/06/17 Page 1 of 139 Medical Records Civil Action Number: 3:17-CV-08051 Claimant: Dennis Lee Ott Account Number: 521-78-5472 Exhibits Exhibit No. of No. Description Page No. Pages 11F Office Visits, dated 10/20/2011 to 06/27/2013, from 516-653 138 KINGMAN REGIONAL MEDICAL CENTER DATE: May 18, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653

010 Medical Records Part 3

Case 3:17-cv-08051-SPL Document 13-10 Filed 06/06/17 Page 1 of 154 Medical Records Civil Action Number: 3:17-CV-08051 Claimant: Dennis Lee Ott Account Number: 521-78-5472 Exhibits Exhibit No. of No. Description Page No. Pages 11F Office Visits, dated 10/20/2011 to 06/27/2013, from 654-806 153 KINGMAN REGIONAL MEDICAL CENTER DATE: May 18, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 755 756 757 758 759 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 788 789 790 791 792 793 794 795 796 797 798 799 800 801 802 803 804 805 806

011 Medical Records Part 4

Case 3:17-cv-08051-SPL Document 13-11 Filed 06/06/17 Page 1 of 141 Medical Records Civil Action Number: 3:17-CV-08051 Claimant: Dennis Lee Ott Account Number: 521-78-5472 Exhibits Exhibit No. of No. Description Page No. Pages 11F Office Visits, dated 10/20/2011 to 06/27/2013, from 807-883 77 KINGMAN REGIONAL MEDICAL CENTER 12F Office Visits, dated 08/20/2012 to 06/27/2013, from PAUL 884-905 22 YAMAGUCHI MD 13F Office Visits, dated 08/20/2012 to 06/28/2013, from PAUL 906-928 23 YAMAGUCHI MD 14F Statement of Claimant or Other Person, dated 03/25/2014, 929 1 from Paul Yamaguchi, MD 15F Residual Functional Capacity Questionnaire, dated 930-931 2 03/28/2014, from Sungnam Joe, MD 16F Emergency Department Records, dated 10/12/2014, from 932-939 8 Auburn Medical Center/Multicare 17F Office after visit summary, dated 10/24/2014, from Auburn 940-942 3 Outpatient Clinic/Multicare 18F After Visit Summary w/MRI Results, dated 11/21/2014, from 943-946 4 Multicare Neuro Surg Clinic-Tacoma DATE: May 18, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 807 808 809 810 811 812 813 814 815 816 817 818 819 820 821 822 823 824 825 826 827 828 829 830 831 832 833 834 835 836 837 838 839 840 841 842 843 844 845 846 847 848 849 850 851 852 853 854 855 856 857 858 859 860 861 862 863 864 865 866 867 868 869 870 871 872 873 874 875 876 877 878 879 880 881 882 883 884 885 886 887 888 889 890 891 892 893 894 895 896 897 898 899 900 901 902 903 904 905 906 907 908 909 910 911 912 913 914 915 916 917 918 919 920 921 922 923 924 925 926 927 928 929 930 931 932 933 934 935 936 937 938 939 940 941 942 943 944 945 946

012 Medical Records Part 5

Case 3:17-cv-08051-SPL Document 13-12 Filed 06/06/17 Page 1 of 113 Medical Records Civil Action Number: 3:17-CV-08051 Claimant: Dennis Lee Ott Account Number: 521-78-5472 Exhibits Exhibit No. of No. Description Page No. Pages 19F Office Treatment Records, dated 02/04/2014 to 08/08/2014, 947-998 52 from Kingman Internal Medicine Associates 20F Office Treatment Records, dated 10/24/2014 to 10/24/2014, 999-1008 10 from Auburn Clinic: Santos Nilo MD 21F Office Treatment Records, dated 03/03/2015 to 03/03/2015, 1009-1010 2 from Seattle Pain Center 22F Office Treatment Records, dated 03/31/2015 to 04/30/2015, 1011-1018 8 from Seattle Pain Center 23F Office Treatment Records, dated 03/03/2015 to 05/14/2015, 1019-1035 17 from Seattle Pain Center 24F Office Treatment Records-chronic pain, head and neck 1036-1058 23 pain, headaches,, dated 03/03/2015 to 05/27/2015, from Seattle Pain Center DATE: May 18, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 947 948 949 950 951 952 953 954 955 956 957 958 959 960 961 962 963 964 965 966 967 968 969 970 971 972 973 974 975 976 977 978 979 980 981 982 983 984 985 986 987 988 989 990 991 992 993 994 995 996 997 998 999 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 1041 1042 1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1053 1054 1055 1056 1057 1058

OPENING BRIEF by Dennis Lee Ott.

Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 1 of 21 Howard D. Olinsky Attorney for Plaintiff Admitted Pro Hac Vice One Park Place 300 South State St., Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Facsimile: (315) 701-5781 Email: holinsky@windisability.com IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Dennis Lee Ott No. CV-17-08051-SPL Plaintiff, OPENING BRIEF OF PLAINTIFF vs. [Dist. Ariz. Local Rule Civil 16.1(a)] Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant STATEMENT OF THE ISSUES 1. The ALJ improperly accorded inadequate weight to the opinion of treating physician Dr. Joe, thereby failing to support the residual functional capacity determination by substantial evidence, because the RFC failed to account for any limitations resulting from Plaintiff’s severe impairment of migraine headaches. 1 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 2 of 21 STATEMENT OF THE CASE On March 13, 2013, Dennis Lee Ott ("Plaintiff") protectively filed for Disability Insurance Benefits, alleging disability since September 11, 2012 due to occipital neuralgia, stenosis, thunder-clap headaches, depression, dizziness, arthritis, and temporal arteritis. Administrative Transcript ("T") at 10, 190. Plaintiff’s claim was initially denied on July 16, 2013, (T 110-13) and on reconsideration on January 30, 2014. T 117-19. After a hearing held on July 30, 2014 (T 49-81), Administrative Law Judge ("ALJ") Cynthia D. Rosa issued a decision denying Plaintiff’s application on September 29, 2014. T 27-40. In the decision, the ALJ found that Plaintiff had not engaged in substantial gainful activity since September 11, 2012, the alleged onset date. T 29. For purposes of Title II Disability Insurance Benefits, the ALJ found the date last insured is December 31, 2017. T 29. She found severe impairments of migraine headaches, degenerative disc disease of the cervical spine with stenosis, mild to moderate foraminal narrowing at C3-C4 through C6-C7, and radiculopathy. T 29. The ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments. T 31. The ALJ determined that Plaintiff has the residual functional capacity ("RFC") to perform: A full range of sedentary work, which is defined in 20 CFR 404.1567(a) as work involving lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. He can stand and/or walk for two hours and sit for six hours in an eight-hour workday. T 31. At Step 4, the ALJ found that Plaintiff could perform his past relevant work as an 2 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 3 of 21 estimator, thus finding Plaintiff not disabled. T 40. On January 11, 2017, the Appeals Council denied review, which means the final agency decision is the ALJ’s unfavorable decision. T 1-5. This action followed. This Court has jurisdiction of this action. 42 U.S.C. § 405(g). STATEMENT OF FACTS On the alleged onset date, Plaintiff was 60 years old. T 83. Plaintiff completed high school and reported past work as a commercial estimator and in retail paint sales. T 191. A. Medical Evidence On September 5, 2012, Plaintiff treated at the Mayo Clinic for headaches. T 420. He had a longstanding history of mild headaches, until January 2012, when he experienced a severe headache with thunderclap onset, associated with stabbing pain, neck stiffness, photophobia, phonophobia, lightheadedness, and exacerbation with movement. T 420 (See also T 662-701 for January 2012 emergency department care/hospitalization for severe headache with left ear pain and swelling with cellulitis). Since that time, he has had daily headaches with pain at a 3-4/10, with multiple exacerbations per day, with more severe pain in a thunderclap onset. T 420. He complained of associated decrease in cognitive abilities and memory. T 420. Dr. Starling assessed likely occipital neuralgia, but noted he would consult with other neurologists and possibly order further testing to confirm. T 422-23. He prescribed right occipital nerve blocks, to be performed with pain physician Dr. Yamaguchi, with whom Plaintiff established care on August 15, 2012 (T 833-85). T 423. On September 7, 2012, Dr. 3 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 4 of 21 Sungnam Joe completed a statement indicating Plaintiff is unable to work until further notice. T 337. On September 11, 2012, Plaintiff treated at Kingman Internal Medicine Associates requesting FMLA paperwork. T 338. He complained of symptoms of fatigue, malaise, weight gain, abdominal pain, extreme weakness, headaches, memory impairment, and depression. T 340-41. Dr. Joe’s impression was headaches, occipital neuralgia, and stress reaction, and noted he would complete FMLA paperwork. T 344. Dr. Joe completed FMLA paperwork that day, indicating Plaintiff remained incapacitated from September 7, 2012 through December 7, 2012, pending response to treatment. T 382. He reported Plaintiff’s condition began January 3, 2012, and he treated Plaintiff in January, March, April, July, and September for his condition, and his diagnoses are occipital neuralgia and thunderclap headaches. T 381. He had referred Plaintiff to neurologists, pain management specialists, a general surgeon, and a rheumatologist to treatment. T 381. He opined Plaintiff cannot perform the following functions: lifting, computer work, or calculations involving money. T 381. He attributed this to symptoms of severe chronic headaches with frequent exacerbations, weakness, irritability, anxiety, impaired cognitive function for memory and concentration. T 381. On September 21, 2012, Plaintiff underwent MRI of the brain due to thunderclap headaches. T 360. Imaging revealed mild chronic small vessel ischemic changes. T 360. Plaintiff followed up with Dr. Yamaguchi on September 24, 2012, after receiving bilateral occipital nerve blocks on September 19, 2012 (T 804-06). T 799. He reported decreased pain and improved function and sleep. T 799. Plaintiff requested repeat 4 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 5 of 21 injections, which Dr. Yamaguchi scheduled for late September. T 799. Plaintiff treated with Dr. Yamaguchi on October 12, 2012, and reported that he had relief of constant low-grade headaches following an occipital nerve block on September 19, 2012. T 895. However, he complained that the lightning strike headaches with auditory and photophobia increased in intensity and frequency, occurring 6-8 times daily, for 15-20 minutes at a time. T 793. He reported these headaches interfere with his functioning. T 793. Dr. Yamaguchi’s clinical findings included improved range of motion in the neck, but mild painful distress upon presentation. T 793. He noted Plaintiff’s occipital neuritis responded well to nerve blocks, but that his chronic migraines increased in frequency and intensity. T 793. He concluded he would submit approval for Botox injection therapy for chronic migraine headaches. T 793. Plaintiff underwent additional occipital nerve blocks on October 31, 2012. T 795-97. On November 13, 2012, Plaintiff treated with Dr. Yamaguchi for headaches after receiving bilateral occipital nerve blocks on October 31, 2012. T 778. He complained that headaches remained a constant problem since the injections, and rated his pain as 7 on 1-10 scale. T 778. Physical examination revealed decreased range of motion in the spine and tenderness to palpation at the occipital nerves. T 778. Dr. Yamaguchi assessed a complex headache, and recommended a glucose tolerance test and referral to the balance center due to Plaintiff’s complaints of vertigo. T 778. Plaintiff underwent evaluation at the Balance Center on November 30, 2012 due to vertigo beginning 2 weeks prior, with intermittent light-headedness with quick head and body movements. T 780. He also reported some difficulty hearing. T 780. Examination 5 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 6 of 21 revealed partially occluded ear canals and borderline normal hearing, bilaterally. T 780. Following testing, it was concluded that Plaintiff’s new medication (gabapentin) or his condition of occipital neuralgia may be the cause of his dizziness. T 780-81. On February 21, 2013, Plaintiff treated with neurologist Dr. Starling for a follow up appointment regarding occipital neuralgia, memory loss, and probable cervicogenic headache, and Dr. Starling prescribed bilateral occipital nerve blocks and neuropsychometric testing. T 418. He administered the nerve blocks that day, and noted Plaintiff may require bilateral occipital nerve blocks every three months for pain relief. T 419, 433. On February 28, 2013, Plaintiff treated with Dr. Joe for headaches and to follow up hospital treatment for chest pain. T 345. He reported undergoing an occipital block at the Mayo Clinic on February 21, 2013, which helped the pain in one area, but the pain "moved" to another part. T 345. He also reported worsening memory, and that he would be starting the application process for disability. T 345. He also complained of depression and neck pain. T 348-49. On examination, Dr. Joe noted he did not demonstrate appropriate mood or affect and appeared depressed. T 350. Dr. Joe assessed headache, chest, pain, and dysthymic disorder. T 350. He noted Plaintiff would continue treatment with Dr. Yamaguchi for headaches, and Dr. Dunning for chest pain, and he prescribed Cymbalta for dysthymic disorder. T 350. On March 11, 2013, MRI of the cervical spine revealed moderate right neural foramen stenosis at C3-C4, C5-C6, and C6-C7, mostly due to facet and uncovertebral degenerative change. T 359. On March 20, 2013, Plaintiff treated with Dr. Yamaguchi 6 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 7 of 21 for right sided C4 and C5 medial branch nerve blocks to treat cervical facet arthritis. T 376, 734-37. On April 2, 2013, Dr. Joe noted Plaintiff was suffering radiculopathy of the cervical spine, and had a brief positive response to an epidural block with Dr. Yamaguchi. T 351, 356. Dr. Yamaguchi’s examination findings included tenderness to palpation of the right C4 and C5 cervical nerve root distribution, with decreased cervical range of motion. T 898. Dr. Joe and Dr. Yamaguchi noted the plan was to treat with radiofrequency ablation, since the block relieved pain for only one week. T 351, 883. On May 1, 2013, Dr. Yamaguchi administered C4-C5 medial branch nerve ablation. T 879-82. Plaintiff followed up with Dr. Yamaguchi on May 16, 2013 after undergoing medial branch nerve ablation, and reported that his neck pain decreased by 70-80%. T 846. He reported lightning strike headaches were gone, but he suffered chronic daily migraine headaches lasting 5 hours. T 846. Examination revealed limited range of motion in the cervical spine and significant tension in the temporalis muscles bilaterally. T 846. He noted that once the Botox protocol is approved by insurance, he would proceed with treatment for chronic daily migraines. T 846. On May 17, 2013, Plaintiff underwent a neuropsychometric evaluation of his cognitive status at the request of neurologist, Dr. Starling. T 411. Plaintiff reported changes in cognition, with increased difficulty with word finding and memory, and losses in his remote memory. T 411. He described his mood as sad, irritable, and nervous, despite treatment with Cymbalta for both mood and pain. T 411. Dr. Locke performed 3 hours of psychometric testing, interviewed the Plaintiff, and reviewed available medical 7 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 8 of 21 records. T 411. She concluded Plaintiff was suffering mild cognitive inefficiency, and showed severe elevations on depression and anxiety. T 416. She recommended he seek supportive counseling and a change in medication, given the lack of relief he experienced with Cymbalta. T 416. On May 30, 2013, Plaintiff treated with Dr. Yamaguchi for constant headaches with a pain level of 6, which Dr. Yamaguchi noted was an improvement since his last visit. T 845. Plaintiff reported tightness and tension headaches, beginning at the base of the skull and radiating up over the occipital and parietal areas. T 845. His sleep pattern, mood, and appetite were mildly disturbed due to headaches and stress. T 845. Examination revealed tenderness to palpation over the occipital nerve on the right with limited cervical range of motion. T 845. Dr. Yamaguchi assessed cervical facet arthrosis, chronic daily migraines, and tension headaches, and recommended repeat injections, with possible C2 and C3 medial branch nerve blocks as well. T 845. On June 12, 2013, Plaintiff treated with Dr. Joe to discuss medications, and reported he does not like Cymbalta, and complained of significant situational stress due to his family situation. T 491. He reported continued treatment for headaches with Dr. Yamaguchi, and that he was undergoing a Botox injection and radiofrequency ablation. T 491. On examination, Dr. Joe noted Plaintiff appeared angry, agitated, and depressed, and he diagnosed dysthymic disorder and insomnia in addition to headaches and occipital neuritis. T 494-96. He prescribed olanzapine for stress and sleep difficulties. T 495. That same day, Plaintiff treated with Dr. Yamaguchi for Botox therapy due to chronic daily migraine headaches. T 839. 8 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 9 of 21 On June 21, 2013, Plaintiff underwent a disability evaluation with Heather Nash, Ph.D. T 509. He endorsed the following symptoms of depression: depressed mood nearly every day; 30-pound weight gain in 8 months; motor retardation; fatigue most of the day, nearly every day; diminished ability to think or concentrate due to headaches; and thoughts of death 2-3 times per week. T 509-10. Dr. Nash found Plaintiff’s cognitive ability, concentration, and memory were not impaired on examination. T 512-13. She opined Plaintiff’s ability to carry out simple or complex instructions is not impaired, and he retains the ability to interact appropriately with supervisors, co-workers, and the public. T 513. On June 27, 2013, Plaintiff treated with Dr. Yamaguchi for cervical facet arthrosis, and Dr. Yamaguchi administered medial branch nerve ablation at C4 and C5. T 840-44. On March 25, 2014, Dr. Yamaguchi opined that Plaintiff "has a chronic persistent medical condition that precludes his ability to be gainfully employed at this time." T 929. On March 28, 2014, Dr. Joe completed a residual functional capacity questionnaire regarding Plaintiff’s impairments. T 930. He indicated Plaintiff suffers from intractable headaches, occipital neuritis, and facet arthropathy, and his prognosis is poor. T 930. He identified Plaintiff’s symptoms as headaches, stiff neck, dizziness, blurred vision, fatigue, hypersomnolence, loss of memory and depression, and opined these symptoms are frequently severe enough to interfere with the attention and concentration required to perform simple work-related tasks. T 930. He opined Plaintiff can sit for an hour at a time and up to 6 hours total in an 8-hour workday, and can stand/walk for 10 minutes at a 9 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 10 of 21 time and for 1 hour total in an 8-hour workday. T 930. He opined Plaintiff would require unscheduled breaks in addition to typical work breaks, and he may require a 5-minute break up to 4 times hourly. T 930. He opined Plaintiff can frequently lift and carry 10 pounds, occasionally lift and carry 20 pounds, and can only occasionally reach with either arm. T 931. He opined Plaintiff would be absent from work more than four times monthly as a result of his impairments or treatments. T 931. Plaintiff treated with Kingman Internal Medicine Associates with primary care physician Dr. Joe through August 2014. T 948. Dr. Joe monitored hypertension (T 948, 975), diabetes (T 953, 980), sporadic, severe headaches (T 958, 968-69, 975, 981), and follow-up care after Plaintiff treated in the hospital for syncope with unknown cause (T 964-68). On October 12, 2014, Plaintiff treated in the emergency department of Auburn Multicare Clinic for right arm numbness and neck pain, and was assessed with cervical radiculopathy. T 932-38. X-ray of the cervical spine revealed multilevel degenerative changes, and Dr. Baxter prescribed Flexeril for muscle spasms. T 932. On November 21, 2014, Plaintiff treated in the neurosurgical clinic at the Multicare Clinic – Tacoma, and was diagnosed with lumbar degenerative disc disease. T 943-46. Dr. Harris prescribed meloxicam. T 943. Plaintiff treated at the Seattle Pain Center from March to May 2015 for chronic pain and headaches, and was treated with Botox injections, Norco, and Neurontin. T 1012-22. He did not report improvement with Botox, but Sandra Cananday ARNP, noted it may take more than one treatment to be effective, and she prescribed Oxycodone in May 2015 10 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 11 of 21 for additional help with pain relief. T 1021. B. Hearing Testimony Plaintiff testified: He last worked in a paint store, tinting paint and matching paint samples, and in retails sales. T 57. He held the job for about four years, but had to quit due to persistent headaches. T 57. He cannot do any work because of sporadic headaches that hit with stabbing pain in the head, with intense pain that lasts for about a minute, and leaves with him a residual headache. T 58. The residual headache is between a 6-8 on a 1-10 pain scale, and lasts for 30-90 minutes. T 58. These headaches can happen several times daily, and as an example, he indicated he suffered three severe headaches the night before the hearing. T 66. Nighttime headaches leave him exhausted, so he will sleep when he can, including an hour or two during the daytime. T 66-67. He also suffers constant dull headaches 24 hours a day, with pain between 2-3 on a 1-10 pain scale. T 58. Headaches prevent him from enjoying any hobbies or activities, but he used to enjoy woodworking. T 63. He cares for himself, cooks, and cleans, but he has to stop everything when a headache hits. T 64-65. He becomes significantly slower with severe headaches, or may go into a dark room with an ice pack until the pain passes. T 68. He goes to church and still drives a car, but he has to sit down or go outside of church when he gets a headache, and when he is driving he may have to stop. T 69-70. He loses the ability to focus and concentrate when he gets headaches. T 73-74. He also has a pinched nerve in the neck, which his doctors believe is the cause of numbness in his shoulder and right arm/hand. T 70. He has pain and "popping" in his neck. T 70. He has difficulty holding things or opening jars due to lack of strength and 11 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 12 of 21 control of the right hand. T 71. C. Vocational Expert’s Testimony The Vocational Expert ("VE") testified that someone of Plaintiff’s age, education, and experience who had the ALJ’s determined RFC, could perform Plaintiff’s past relevant work as an Estimator. T 78-79. If such an individual were to be off task for more than 10% of the day due to pain from headaches, he could not perform the job. T 79. He could not be absent from work more than one day per month, or he would be terminated. T 79. Argument Standard of Review Pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), this Court may review the record to determine whether the Commissioner applied the proper legal standards and whether substantial evidence supports the final agency decision to deny the Plaintiff benefits. Substantial evidence means more than a scintilla, "[i]t means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 400 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 229 (1938)); Martinez v. Colvin, No. CV-12-01886, 2013 U.S. Dist. LEXIS 150952, *2-3 (D. Ariz. Oct. 21, 2013) (Wake, J.) ("Substantial evidence is more than a scintilla, less than a preponderance, and relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole") (citing Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)). An individual is considered disabled for purposes of disability benefits if he is 12 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 13 of 21 unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The Commissioner uses a five-step sequential process to determine whether the claimant has met the burden of proving disability. The claimant must prove at step one that he is not undertaking substantial gainful activity. See 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the claimant must prove that he is suffering from a severe impairment or combination of impairments which significantly limits his ability to perform basic work-related activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c). At step three, if the impairment meets one of the listed impairments in Appendix 1 to Subpart P of Part 404 (Listing of Impairments), the claimant will be considered disabled without consideration of age, education and work experience. See 20 C.F.R. §§ 404.1520(d), 416.920(d). At step four, if the claimant is unable to prove the existence of a listed impairment, he must prove that the impairment prevents performance of past relevant work. See 20 C.F.R. §§ 404.1520(e), 416.920(e). At step five, the regulations direct the Commissioner to consider the claimant's residual functional capacity, age, education, and past work experience to determine whether the claimant can perform other work besides past relevant work. See 20 C.F.R. §§ 404.1520 (f), 416.920(f). 1. The ALJ improperly accorded inadequate weight to the opinion of treating physician Dr. Joe, thereby failing to support the residual functional capacity determination by substantial evidence. 13 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 14 of 21 RFC "means the most an individual can do after considering the effects of physical and/or mental limitations that affect the ability to perform work-related tasks." Lupo v. Colvin, No. CV-13-661, 2014 U.S. Dist. LEXIS 80735, at *2 n.2 (D. Ariz. June 13, 2014) (Anderson, M.J) (citing 20 C.F.R. § 404.1545(a)(1)-(2)). The ALJ determined Plaintiff can perform the full range of sedentary work, with no additional limitations. T 31. However, the RFC determination is unsupported by substantial analysis due to the ALJ’s improper analysis of Dr. Joe’s opinion, which should have received more reflection in the RFC determination. Further, the ALJ’s RFC fails to account for any limitations resulting from Plaintiff’s migraine headaches, which the ALJ found severe. With respect to Dr. Joe’s opinion, "the ALJ must give specific, legitimate reasons for disregarding the opinion of the treating physician." Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)). "[T]o reject the testimony of a medically acceptable treating source, the ALJ must provide specific, legitimate reasons based on substantial evidence in the record." Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citations omitted). A treating physician’s opinion is given controlling weight when it "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Even if a treating physician’s opinion is not given "controlling weight," it is still entitled to deference and the ALJ must assess the following factors to determine how much weight to afford the opinion: the 14 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 15 of 21 length of the treatment relationship, the frequency of examination by the treating physician, the medical evidence supporting the opinion with the record as a whole, the qualifications of the treating physician, and other factors tending to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). The opinions of treating physicians are given greater weight than those of examining or non-treating physicians or physicians who only review the record. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citations omitted). Dr. Joe’s opinion limited Plaintiff to less than the full range of sedentary work due to the severe impairments of intractable headaches, occipital neuritis, and facet arthropathy. T 930. He identified Plaintiff’s symptoms as headaches, stiff neck, dizziness, blurred vision, fatigue, hypersomnolence, loss of memory and depression, and opined these symptoms are frequently severe enough to interfere with the attention and concentration required to perform simple work-related tasks. T 930. His opinion of Plaintiff’s exertional limitations is consistent with the RFC to the extent he opined Plaintiff can sit for an hour at a time and up to 6 hours total in an 8-hour workday, and can stand/walk for 10 minutes at a time and for 1 hour total in an 8-hour workday (the discrepancy being that the ALJ found Plaintiff can stand/walk for up to two hours total), and that he can lift/carry 10 pounds frequently and 20 pounds occasionally. T 31, 930-31. However, due to headaches, Dr. Joe opined Plaintiff would require unscheduled breaks in addition to typical work breaks, and he may require a 5 minute break up to 4 times hourly. T 930. He opined Plaintiff would be absent from work more than four times monthly as a result of his impairments or treatments. T 931. 15 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 16 of 21 In rejecting Dr. Joe’s opinions, the ALJ gave it little weight, concluding that his opinion is "grossly inconsistent with the overall medical evidence of record." T 40. The ALJ summarizes some notes, indicating that "headaches somewhat improved with injections and pain medications," and physical examination findings were normal. T 40. The ALJ further noted that Plaintiff’s daily activities are normal, and consistent with an individual who can tolerate work activity. T 40. For these reasons, the ALJ found Dr. Joe’s opinion was not supported by the record. This rationale violates Molina as the ALJ did not provide "specific, legitimate reasons based on substantial evidence in the record" in discounting Plaintiff’s treating physician’s opinion. 674 F.3d at 1111 (9th Cir. 2012). There is really nothing the ALJ offers as a basis for rejecting these opinions besides the broad boilerplate language that the objective medical evidence does not support his assessments, and that the opinion is overly restrictive. In discounting the opinion directly, the ALJ summarizes vague findings such as "improvement" and normal physical examinations, but fails to show how any of these finding undermine Dr. Joe’s opinion. Further, these reasons are not legitimate, as the ALJ’s assertions are contradicted by the record. First, the ALJ’s assertion that the opinion is overly restrictive is erroneous, because as discussed above, Dr. Joe’s opinion of Plaintiff’s exertional capacity is largely consistent with the ALJ’s RFC for sedentary work. However, unlike the RFC, the opinion contains additional limitations consistent with Plaintiff’s frequent, severe headaches, which the ALJ failed to account for. Indeed, Plaintiff has not alleged an unreasonably restricted exertional functional capacity, and testified that, when he does 16 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 17 of 21 not have headaches, he is able to perform his daily activities without limitation. T 64-65. The ALJ’s portrayal of Dr. Joe’s opinion as unreasonably restrictive is inaccurate, because it reflects the RFC but also accommodates Plaintiff’s persistent, severe headaches. Indeed, these headaches are the focus of the majority of the evidence in this matter, and it is therefore not unreasonable that Dr. Joe’s opinion focuses on the limitations they cause. Second, the ALJ’s allegation that Plaintiff’s headaches improved with treatment is a mischaracterization of the evidence. At the time of the hearing, Plaintiff testified that he continued to suffer headaches described as a stabbing pain in the head, with intense pain that lasts for about a minute, and leaves with him a residual headache. T 58. The residual headache is between a 6-8 on a 1-10 pain scale, and lasts for 30-90 minutes. T 58. He suffers these headaches several times daily. T 66. Treatment notes also show that Dr. Joe found Plaintiff’s headaches incapacitating, even rendering an opinion to that effect for the period from September through December 2012. T 381. Following occipital nerve blocks in September 2012, Plaintiff reported his low-grade headaches were relieved, but that his lightning strike headaches intensified and occurred more frequently, up to 8 times daily. T 793. In November 2012, despite additional occipital nerve blocks, Plaintiff complained that headaches remained a constant problem, with pain at a 7 on a 1-10 scale. T 778. In February 2013, Plaintiff reported that the most recent nerve block helped the pain in one area, but the pain basically just moved to another location in his head. T 345. In April 2013, Plaintiff’s response to nerve blocks was described as briefly positive, in that it relieved pain for 17 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 18 of 21 about one week. T 351, 883. Plaintiff then underwent radiofrequency nerve ablation, which he reported decreased his neck pain and lightning strike headaches, but he was instead suffering migraine-type headache pain lasting 5 hours daily. T 846. Because of this, he was recommended to undergo Botox treatment. T 846. In May 2013, Plaintiff reported constant daily headaches with a pain level of 6, which was noted to be an improvement despite the fact that pain continued, so Dr. Yamaguchi recommended additional injections and nerve blocks. T 845. He underwent additional nerve ablation in June 2013, and as of March 2014 Dr. Yamaguchi opined Plaintiff’s condition precludes gainful employment. T 840-44, 929. It was also in March 2014 that Dr. Joe completed his opinion outlining Plaintiff’s limitations. He subsequently treated with additional rounds of Botox and narcotic pain medications. T 1012-22. Thus, reviewing the records detailing the "relief" Plaintiff experienced with treatment, it is clear that his condition never actually improved, though the nature of his pain varied. Therefore, the ALJ’s rejection of Dr. Joe’s opinion on the basis that Plaintiff’s condition improved is erroneous. Third, the ALJ’s recitation of "normal" examination findings as contradictory to Dr. Joe’s opinion is disingenuous; the basis for the opinion was Plaintiff’s impairment of various types of headaches, which generally do not have "observable" findings. Indeed, the ALJ failed to explain now "normal gait, as well as full range of motion, strength, sensation, and reflexes" contradicts an opinion of limitations due to intractable headaches, occipital neuritis, and facet arthropathy. T 40. Notably, the ALJ makes no mention of the positive relevant findings that support the opinion, such as Plaintiff’s 18 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 19 of 21 presentation in painful distress (T 901), significant occipital notch tenderness (T 428, 433), or tenderness to palpation of the right occipital area where the occipital nerve emerges from the base of the skull (T 800, 845), and significant tension in the temporalis muscles bilaterally, with limited range of motion in the neck. T 846. Thus, there is no evidence that the examination findings contradict Dr. Joe’s opinion, based on the nature of Plaintiff’s impairments. Therefore, the ALJ failed to assert any good reason for discounting the opinion of the treating source, as all the findings discussed by the ALJ were vague or unsupported by the record. The ALJ offered no good reasons for rejecting Dr. Joe’s opinion of off-task time due to concentration lapses as a result of pain, the need for unscheduled breaks, or multiple monthly absences due to his impairments. Therefore, these findings should have been reflected in the RFC, and the RFC is not a complete reflection of Plaintiff’s abilities in light of his impairments. This error warrants remand for further evaluation of Plaintiff’s RFC, in light of these uncontradicted limitations Dr. Joe opined. Batson, 359 F.3d at 1195. Further, the Ninth Circuit has held that an ALJ errs when he finds migraine headaches "severe" but fails "to include limitations reflecting the severity of the migraine headaches in [Plaintiff]’s residual functional capacity (RFC) and in the hypothetical posed to the VE." Lewis v. Comm'r of Soc. Sec. Admin., 293 F. App'x 495, 496–97 (9th Cir. 2008). Even if, as the ALJ asserted, Plaintiff’s headaches "somewhat improved with injections" (T 36), this still would not explain the complete absence of any limitation in 19 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 20 of 21 the RFC to correspond to migraine headaches. The ALJ’s failure to include any limitations in the RFC which corresponds to Plaintiff’s severe limitations is error, and renders the RFC incomplete. SSR 96-8p ("In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments." Here, due to headaches, Plaintiff reported that he must typically stop what he is doing, take breaks, or lay down in a dark room with an ice pack when a migraine hits. T 68-70. He has difficulty focusing or completing tasks due to the pain. T 73-74. Consistent with Dr. Joe’s opinion, his symptoms would therefore interfere with concentration, result in unscheduled breaks, or cause absences from work. T 930-31. Therefore, the RFC is not supported by substantial evidence, because it does not include any limitation which corresponds to Plaintiff’s severe impairment of migraine headaches, and the ALJ improperly excluded the limitations opined by Plaintiff’s treating physician, Dr. Joe. Conclusion For the foregoing reasons, it is respectfully requested this matter be remanded for further proceedings, including a de novo hearing and decision to address these errors. Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky, Esq. Attorney for Plaintiff Olinsky Law Group One Park Place 300 South State St., Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Email: holinsky@windisability.com 20 Case 3:17-cv-08051-SPL Document 14 Filed 08/07/17 Page 21 of 21 CERTIFICATE OF SERVICE I hereby certify that on August 7, 2017, I electronically filed Plaintiff’s reply brief with the Clerk of the District Court using the CM/ECF system, which sent notification of such filing to the following: To: Elizabeth A. Strange Acting United States Attorney District of Arizona Ryan Lu Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 State Bar No. OR105902 Fax: (206) 615-2531 ryan.lu@ssa.gov Telephone: (206) 615-2034/s/Howard D. Olinsky ___________________________ Howard D. Olinsky, Esq. Attorney for Plaintiff 21

RESPONSE BRIEF by Commissioner of Social Security Administration.

Case 3:17-cv-08051-SPL Document 15 Filed 09/05/17 Page 1 of 15 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Ryan Lu 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. OR105902 8 Fax: (206) 615-2531 ryan.lu@ssa.gov 9 Telephone: (206) 615-2034 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Dennis Lee Ott, 14 No. CV-17-08051-PCT-SPL 15 Plaintiff, 16 DEFENDANT'S BRIEF vs. 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 INTRODUCTION 22 Dennis Lee Ott (Plaintiff) seeks judicial review of the final administrative decision 23 denying his application for Disability Insurance Benefits under Title II of the Social 24 25 Security Act (the Act). 42 U.S.C. §§ 401-33. The Act provides for judicial review of a 26 "final decision" of Defendant, the Acting Commissioner of Social Security 27 (Commissioner). 42 U.S.C. § 405(g). 28 Case 3:17-cv-08051-SPL Document 15 Filed 09/05/17 Page 2 of 15 1 Plaintiff seeks an order reversing the decision and remanding for further 2 administrative proceedings. Plaintiff’s Opening Brief (ECF No. 14) at 20. However, 3 substantial evidence supports the Commissioner’s decision. The Court should thus enter 4 5 judgment affirming. 6 STATEMENT OF ISSUES 7 The main issue is whether the decision of the Commissioner is supported by 8 substantial evidence and free of harmful legal error. Molina v. Astrue, 674 F.3d 1104, 9 10 1110-11 (9th Cir. 2012). Plaintiff raises the following specific issues: 11 1. Did the Administrative Law Judge (ALJ) reasonably reject the opinion from 12 treating physician Sungnam Joe, M.D.? 13 14 2. Did the ALJ reasonably include in the residual functional capacity finding the 15 limitations stemming from Plaintiff’s migraine headaches?1 16 ECF No. 14 at 1, 13, 19-20. 17 18 PROCEDURAL HISTORY 19 In March 2013, Plaintiff filed an application for Disability Insurance Benefits, 20 which was denied initially and on reconsideration. Tr. 27. An ALJ held a hearing, 21 considered testimony from Plaintiff and a vocational expert, and thereafter issued a 22 23 decision finding Plaintiff was not disabled. Tr. 27-40. The Appeals Council denied 24 25 26 27 1 Although Plaintiff’s brief lists only one issue (ECF No. 14 at 1), it also appears to challenge the ALJ’s residual functional capacity finding. ECF No. 14 at 19. The 28 Commissioner addresses these two issues separately in her brief. 2 Case 3:17-cv-08051-SPL Document 15 Filed 09/05/17 Page 3 of 15 1 Plaintiff’s request for review, making the ALJ’s decision the final agency decision. Tr. 2 1-5. This appeal followed. 3 STANDARD OF REVIEW 4 5 This Court should affirm the Commissioner’s final decision if it is supported by 6 substantial evidence and free of harmful legal error. 42 U.S.C. § 405(g); Tommasetti v. 7 Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). The "key question is not whether there is 8 substantial evidence that could support a finding of disability, but whether there is 9 10 substantial evidence to support the Commissioner’s actual finding that claimant is not 11 disabled." Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). 12 Substantial evidence "is a highly deferential standard of review" and "means such 13 14 relevant evidence as a reasonable mind might accept as adequate to support a 15 conclusion.’" Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 16 2009). The Commissioner’s findings must be upheld if they are supported by inferences 17 18 reasonably drawn from record evidence. Tommasetti, 533 F.3d at 1038. This court may 19 not substitute its judgment for that of the ALJ if the evidence "reasonably supports either 20 confirming or reversing the ALJ’s decision." Batson v. Comm’r of Soc. Sec. Admin., 359 21 F.3d 1190, 1196 (9th Cir. 2004). Moreover, "[a] claimant is not entitled to benefits under 22 23 the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ’s 24 errors may be." Strauss v. Comm’r, 635 F.3d 1135, 1138 (9th Cir. 2011). 25 BURDENS AND SEQUENTIAL EVALUATION PROCESS 26 27 The burden was on Plaintiff to prove he was disabled within the meaning of the 28 Act. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). Disability is the "inability to 3 Case 3:17-cv-08051-SPL Document 15 Filed 09/05/17 Page 4 of 15 1 engage in any substantial gainful activity by reason of any medically determinable 2 physical or mental impairment which can be expected to result in death or which has 3 lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 4 5 U.S.C. § 423(d)(1)(A). A claimant is disabled only if his impairments were of such 6 severity that he was not only unable to do his previous work but could not, considering 7 his age, education, and work experience, engage in any other substantial gainful activity 8 existing in the national economy. 42 U.S.C. § 423(d)(2)(A); Tackett, 180 F.3d at 1098. 9 10 Claims of disability are evaluated under a five-step sequential evaluation process. 11 20 C.F.R. § 404.1520(a). Plaintiff had the burden of proof at steps one through four. 12 Tackett, 180 F.3d at 1098-99. At step five, the burden of production shifted to the 13 14 Commissioner to identify jobs existing in significant numbers in the national economy 15 Plaintiff could perform in light of his residual functional capacity, age, education, and 16 work experience. 20 C.F.R. § 404.1560(c)(2). 17 18 At step one, the Commissioner evaluates whether the claimant was engaged in 19 substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). When the claimant is not 20 engaged in substantial gainful activity, the Commissioner proceeds to the second step and 21 evaluates whether the claimant has a medically determinable "severe impairment... 22 23 which significantly limits" the claimant’s "ability to do basic work activities." 20 C.F.R. 24 § 404.1520(a)(4)(ii). At step three, the Commissioner determines whether the claimant’s 25 impairments meet or equal the standard of a listed impairment, which would necessitate a 26 27 finding that the claimant was disabled. 20 C.F.R. Pt. 404, Subpt. P, App. 1; 20 C.F.R. § 28 404.1520(a)(4)(iii). 4 Case 3:17-cv-08051-SPL Document 15 Filed 09/05/17 Page 5 of 15 1 Before undertaking steps four and five, the Commissioner must determine the 2 claimant’s residual functional capacity, which is the most the claimant can do considering 3 her impairments and limitations. 20 C.F.R. § 404.1520(e). At step four, the 4 5 Commissioner compares the residual functional capacity with the requirements of the 6 claimant’s past relevant work to determine whether the impairments prevent the claimant 7 from performing his past jobs. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant cannot 8 perform his past relevant work, the Commissioner moves to step five and considers 9 10 whether the claimant can do other work, considering his residual functional capacity, age, 11 education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). 12 STATEMENT OF THE FACTS 13 14 The Commissioner adopts the ALJ’s summary of the facts and, in the Arguments 15 section below, discusses the relevant facts and law with citation to the record. Tr. 27-40. 16 ALJ’S FINDINGS 17 18 The ALJ first observed that Plaintiff remained insured for disability benefits until 19 December 31, 2017. Tr. 29. Next, at step one, the ALJ found Plaintiff had not engaged 20 in substantial gainful activity since September 11, 2012, his alleged onset date of 21 disability. Tr. 29. At step two, the ALJ determined Plaintiff had the following severe 22 23 impairments: migraine headaches and degenerative disc disease of the cervical spine with 24 stenosis, mild to moderate foraminal narrowing at C3-4 through C6-7, and radiculopathy. 25 Tr. 29. At step three, the ALJ found Plaintiff did not have an impairment or combination 26 27 of impairments that met or medically equaled the severity of listed impairments in 20 28 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 31. 5 Case 3:17-cv-08051-SPL Document 15 Filed 09/05/17 Page 6 of 15 1 Prior to step four, the ALJ found that Plaintiff had the residual functional capacity 2 to perform a full range of sedentary work, which is defined in 20 C.F.R. § 404.1567(a) as 3 work involving lifting no more than 10 pounds at a time, occasional lifting or carrying of 4 5 articles like docket files, ledgers, and small tools, and standing and/or walking for two 6 hours and sitting for six hours in an eight-hour workday. Tr. 31. 7 At step four, the ALJ found Plaintiff could perform his past relevant work as an 8 estimator. Tr. 40. Having found Plaintiff could perform past relevant work, the ALJ was 9 10 not required to proceed to step five of the sequential evaluation. 20 C.F.R. § 11 404.1520(a)(4)(iv) ("If you can still do your past relevant work, we will find that you are 12 not disabled."). The ALJ thus determined Plaintiff was not disabled during the period at 13 14 issue: September 11, 2012, the alleged onset date of disability, to September 25, 2015, 15 the date of the ALJ’s decision. Tr. 40. 16 ARGUMENTS 17 18 I. The ALJ reasonably rejected Dr. Joe’s medical opinion. 19 In March 2014, treating physician Dr. Joe completed a check-box "residual 20 functional capacity questionnaire" diagnosing intractable headache, occipital neuritis,2 21 and facet arthropathy.3 Tr. 930. He opined that Plaintiff could only sit for 60 minutes at 22 23 24 2 Occipital neuritis (neuralgia) is a form of headache that causes pain along the 25 upper neck and back of the head. See WebMD, Occipital Neuralgia, 26 http://www.webmd.com/migraines-headaches/occipital-neuralgia-symptoms-causes-treatments#1. 27 3 Facet arthropathy is a degeneration of the spinal joints. See Healthline, 28 Recognizing Symptoms of Facet Arthropathy, http://www.healthline.com/health/facet-6 Case 3:17-cv-08051-SPL Document 15 Filed 09/05/17 Page 7 of 15 1 a time and six hours total in a workday, stand/walk for 10 minutes at a time and one hour 2 total in a workday, and walk for only one block without rest or significant pain. Tr. 930. 3 He assessed that Plaintiff’s symptoms would frequently interfere with the attention and 4 5 concentration required to perform even simple work-related tasks, and that Plaintiff 6 would miss work more than four times each month. Tr. 930-31. The ALJ considered this 7 opinion and reasonably gave it "little weight." Tr. 40. 8 The regulations provide a non-exhaustive list of factors that an ALJ may consider 9 10 in weighing conflicting medical opinions, including the degree to which the opinion is 11 supported by clinical findings and the consistency of the opinion with the record as a 12 whole. 20 C.F.R. § 404.1527(c). An ALJ must provide legally sufficient reasons for 13 14 rejecting a physician’s opinion, but her conclusions are afforded greater deference when 15 the medical opinions conflict. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 16 2005) (stating that an ALJ must provide "clear and convincing" reasons to reject 17 18 uncontradicted opinions, but need only identify "specific and legitimate" reasons to reject 19 contradicted opinions). As Dr. Joe’s opinion was contradicted by other opinions,4 the 20 ALJ needed to provide only specific and legitimate reasons to reject it. As discussed 21 below, the ALJ offered two such valid reasons. Tr. 35. 22 23 arthropathy#overview1. 24 4 For example, contradicting Dr. Joe’s opinion of limitations with attention and 25 concentration, examining psychologist Heather Nash, Ph.D., opined that Plaintiff’s "attention and concentration skills were not impaired as evidenced by his MMSE score." 26 Tr. 513. Similarly, contradicting Dr. Joe’s opinion of difficulties walking, standing, and 27 sitting, State agency reviewing medical consultants D. Rowse, M.D., and Randal Reid, M.D., determined that Plaintiff could stand, walk, and sit for six hours each per workday. 28 Tr. 91-93, 106-08. 7 Case 3:17-cv-08051-SPL Document 15 Filed 09/05/17 Page 8 of 15 1 The ALJ first pointed out that Dr. Joe’s opinion was "inconsistent with the overall 2 medical evidence of record." Tr. 40. This was a valid reason to reject the opinion, as 3 factors relevant to evaluating any medical opinion include "the consistency of the 4 5 medical opinion with the record as a whole." Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 6 2007); see also Tommasetti, 533 F.3d at 1041 (explaining that the "incongruity between" 7 a doctor’s opinion "and her medical records provides an additional specific and legitimate 8 reason for rejecting" the opinion). As noted, Dr. Joe opined that Plaintiff’s limitations 9 10 included the ability to stand/walk for only 10 minutes at a time and one hour total in a 11 workday, and walk for only one block without rest or significant pain. Tr. 930. Yet, as 12 the ALJ pointed out, the medical record showed that Plaintiff "consistently demonstrated 13 14 a normal gait, as well as full range of motion, strength, sensation, and reflexes during the 15 examinations." Tr. 40. In her decision, the ALJ cited medical notes, included reports 16 completed by Dr. Joe, describing intact balance and coordination during examinations, 17 18 normal gait, and normal range of motion of the extremities with full strength, sensation, 19 and reflexes. Tr. 36, 343 (Dr. Joe reporting "intact" balance, gait, and coordination), 355 20 (Dr. Joe reporting "[n]ormal range of motion, muscle strength, and stability in all 21 extremities with no pain on inspection"), 422 ("Good toe walk, heel walk, and tandem 22 23 gait without any difficulties."), 835 ("There is no gross sensory, motor, or cerebellar 24 deficits."). The ALJ reasonably rejected Dr. Joe’s opinion given its inconsistency with 25 such unremarkable objective medical findings. Tr. 40. 26 27 In discounting Dr. Joe’s opinion, the ALJ identified a second valid reason: because 28 it was at odds the "demonstrated activities in [Plaintiff’s] personal life, which include 8 Case 3:17-cv-08051-SPL Document 15 Filed 09/05/17 Page 9 of 15 1 managing his daily responsibilities, driving long distances, and spending long hours 2 watching television." Tr. 40. This rationale is appropriate because an ALJ may reject 3 medical opinions that "appear to be inconsistent with the [claimant’s] level of activity." 4 5 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). As the ALJ noted, Plaintiff was 6 able to conduct activities of personal care, including preparing simple meals, performing 7 household chores, shop in stores, and manage his finances. Tr. 37, 202-04, 237-38, 510. 8 Indeed, in one examination report cited by the ALJ, Plaintiff informed a clinician that he 9 10 had "no difficulty completing tasks in a timely manner," maintained the cleanliness of his 11 household "without assistance," and cared for his personal hygiene independently. Tr. 12 37, 510. Plaintiff even informed the clinician that he "drove himself approximately 50 13 14 miles to [the] scheduled appointment." Tr. 37, 509. These reported activities 15 undermined Dr. Joe’s opinion, which limited Plaintiff to walking for only one block 16 without rest or significant pain and purported that Plaintiff’s symptoms would frequently 17 18 interfere with the attention and concentration required to perform even simple work-19 related tasks. Tr. 930-31. The ALJ reasonably cited the inconsistencies to reject Dr. 20 Joe’s opinion. Tr. 40. 21 In disputing the ALJ’s findings, Plaintiff contends that the ALJ "summarizes 22 23 vague findings such as'improvement’ and normal physical examinations, but fails to 24 show how any of these findings undermine Dr. Joe’s opinion." ECF No. 14 at 16. 25 However, Plaintiff’s conclusory assertion is insufficient to undermine the ALJ’s finding. 26 27 "Even when an agency explains its decision with less than ideal clarity, [the reviewing 28 court] must uphold it if the agency’s path may reasonably be discerned." Molina, 674 9 Case 3:17-cv-08051-SPL Document 15 Filed 09/05/17 Page 10 of 15 1 F.3d at 1121 (quotation marks omitted). Here, the ALJ explicitly linked Dr. Joe’s 2 opinion to the generally benign objective medical findings. Tr. 39-40. As explained 3 above, the inconsistency between such findings and Dr. Joe’s opinion is a specific and 4 5 legitimate reason to reject the opinion. 6 Plaintiff next argues that the ALJ "offered no good reasons for rejecting Dr. Joe’s 7 opinion of off-task time due to concentration lapses as a result of pain, the need for 8 unscheduled breaks, or multiple monthly absences due to his impairments." ECF No. 14 9 10 at 19. However, Plaintiff cites no legal authority for his proposition that the ALJ was 11 required to address specifically every single limitation proposed in Dr. Joe’s medical 12 opinion. See ECF No. 14 at 19. Ninth Circuit case law does not require the ALJ to offer 13 14 reasons to reject all discrete limitations described in a medical opinion. Instead, an ALJ 15 may reject a doctor’s opinion simply by providing "specific, legitimate reasons supported 16 by substantial evidence in the record." Widmark v. Barnhart, 454 F.3d 1063, 1066-67 17 18 (9th Cir. 2006). As discussed above, the ALJ here offered two such reasons that were 19 supported by substantial evidence. Tr. 39-40. 20 "[I]f evidence exists to support more than one rational interpretation, [the court] 21 must defer to the Commissioner’s decision." Batson, 359 F.3d at 1193. Moreover, not 22 23 all of an ALJ’s reasons for rejecting a medical opinion must be upheld as long as 24 substantial evidence supports the determination. Id. at 1195. As long as there is "such 25 relevant evidence as a reasonable mind might accept as adequate to support [the ALJ’s] 26 27 conclusion," it should not be overturned. Valentine, 574 F.3d at 690. The ALJ here 28 10 Case 3:17-cv-08051-SPL Document 15 Filed 09/05/17 Page 11 of 15 1 offered valid reasons, supported by substantial evidence, to reject Dr. Joe’s opinion. The 2 Court should affirm. 3 II. The ALJ included in the residual functional capacity finding all limitations 4 that were supported by the evidence, while excluding alleged limitations that 5 were not. 6 Plaintiff argues that the ALJ erred by not including in the residual functional 7 capacity finding the functional limitations that Plaintiff alleged he experienced due to his 8 migraine headaches. ECF No. 19-20. Plaintiff’s argument is without merit. As 9 10 discussed below, the ALJ’s residual functional capacity was valid because it included all 11 credible limitations while excluding those that the ALJ reasonably found were unreliable. 12 Tr. 31. 13 14 A claimant’s residual functional capacity "is the most [he] can do despite [his 15 limitations." 20 C.F.R. § 404.1545(a). The residual functional capacity assessment is 16 based on all relevant evidence in the record, not just medical evidence. 20 C.F.R. § 17 18 404.1545(a). An ALJ’s residual functional capacity finding is proper if it takes "into 19 account those limitations for which there was record support that did not depend on [the 20 claimant’s unreliable] subjective complaints." Bayliss, 427 F.3d at 1217. Similarly, an 21 ALJ is not required to incorporate evidence from medical opinions that the ALJ 22 23 "permissibly discounted." Batson, 359 F.3d at 1197. Here, the ALJ found Plaintiff’s 24 allegations of disabling headaches were not reliable, and thus reasonably excluded them 25 from the residual functional capacity. Tr. 32. As the ALJ similarly rejected Dr. Joe’s 26 27 opinion assessing limitations due to headaches, the ALJ also reasonably excluded such 28 opined limitations from the residual functional capacity finding. Tr. 39-40. The ALJ’s 11 Case 3:17-cv-08051-SPL Document 15 Filed 09/05/17 Page 12 of 15 1 residual functional capacity finding, to the extent it excluded alleged migraine headache 2 limitations that the ALJ found not reliable, was valid and supported by substantial 3 evidence. Batson, 359 F.3d at 1197. 4 5 In challenging the ALJ’s residual functional capacity finding, Plaintiff contends 6 the ALJ did not incorporate limitations described in Dr. Joe’s medical opinion. ECF No. 7 14 at 20. However, as just discussed, the ALJ reasonably rejected Dr. Joe’s opinion by 8 offering specific and legitimate reasons that were supported by substantial evidence. Tr. 9 10 39-40. The ALJ was therefore not required to include Dr. Joe’s assessed limitations in 11 the residual functional capacity finding. Batson, 359 F.3d at 1197. 12 In assigning error to the ALJ’s residual functional capacity finding, Plaintiff also 13 14 cites his own subjective complaints of functional limitations that he claims are associated 15 with his migraine headaches. ECF No. 14 at 20. But, as noted above, the ALJ offered 16 several valid reasons, supported by substantial evidence, to reject these allegations. Tr. 17 18 32-37 (citing reasons such as the allegations’ inconsistency with the objective medical 19 evidence, with Plaintiff’s daily activities, and evidence of improved symptoms following 20 treatment). Because Plaintiff does not challenge the validity of the reasons that the ALJ 21 offered to reject the alleged symptoms, Plaintiff has not demonstrated any error in the 22 23 ALJ’s residual functional capacity finding.5 See Shinseki v. Sanders, 556 U.S. 396, 409 24 25 26 5 Moreover, as Plaintiff has not challenged the ALJ’s rejection of the alleged 27 symptoms, Plaintiff has waived the issue. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 n.7 (9th Cir. 2009) ("This argument, however, was not made in Bray’s 28 opening brief; thus, we deem it waived."). 12 Case 3:17-cv-08051-SPL Document 15 Filed 09/05/17 Page 13 of 15 1 (2009) ("[T]he burden of showing that an error is harmful normally falls upon the party 2 attacking the agency’s determination."). 3 Lastly, Plaintiff suggests that the ALJ’s residual functional capacity finding is 4 5 improper because it does not include "any limitation... to correspond to migraine 6 headaches." ECF No. 14 at 19-20. According to Plaintiff, a "failure to include any 7 limitations in the [residual functional capacity] which corresponds to Plaintiff’s severe 8 limitation [of migraine headaches] is error, and renders the [residual functional capacity] 9 10 incomplete." ECF No. 14 at 19-20 (citing Social Security Ruling (SSR) 96-8p, available 11 at 1996 WL 374184). However, SSR 96-8p does not stand for the proposition that an 12 ALJ must accept and include in the residual functional capacity all limitations alleged by 13 14 a claimant. Instead, as Plaintiff’s acknowledges (ECF No. 14 at 20), the ruling only 15 requires that, in assessing the residual functional capacity, the ALJ "must consider 16 limitations and restrictions imposed by all of an individual's impairments." SSR 96-8p 17 18 (emphasis added). Indeed, Ninth Circuit case law contradicts Plaintiff’s assertion that the 19 ALJ necessarily had to include limitations in the residual functional capacity finding any 20 limitations resulting from impairments found severe at step two. See Bray, 554 F.3d at 21 1228-29 ("Bray offers no authority to support the proposition that a severe mental 22 23 impairment must correspond to limitations on a claimant’s ability to perform basic work 24 activities."). 25 The ALJ’s residual functional capacity finding is proper if it takes "into account 26 27 those limitations for which there was record support that did not depend on [the 28 claimant’s] subjective complaints" that lacked credibility. Bayliss, 427 F.3d at 1217. 13 Case 3:17-cv-08051-SPL Document 15 Filed 09/05/17 Page 14 of 15 1 The reviewing court "will affirm the ALJ’s determination of [residual functional 2 capacity] if the ALJ applied the proper legal standard and [her] decision is supported by 3 substantial evidence." Id. Here, the applied the proper legal standards when she 4 5 excluded from the residual functional capacity finding all limitations that were unreliable, 6 such as Plaintiff’s subjective complaints of disabling migraines, as well as the limitations 7 described in Dr. Joe’s medical opinion. Tr. 31-40. The ALJ’s residual functional 8 capacity finding was thus reasonable and should be affirmed. 9 10 CONCLUSION 11 As the ALJ applied correct the legal standards and supported her decision with 12 substantial evidence, his decision should be affirmed. 42 U.S.C. § 405(g). 13 14 15 DATED this 5th day of September 2017. 16 Respectfully submitted, 17 18 ELIZABETH A. STRANGE Acting United States Attorney 19 District of Arizona 20 s/Ryan Lu 21 RYAN LU Special Assistant United States Attorney 22 23 Of Counsel for the Defendant: 24 25 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 26 Office of the General Counsel, Region X 27 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 28 14 Case 3:17-cv-08051-SPL Document 15 Filed 09/05/17 Page 15 of 15 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Defendant's Brief was filed with the 3 Clerk of the Court on September 5, 2017, using the CM/ECF system, which will 4 5 send notification of such filing to the following: Howard D. Olinsky. 6 7 s/Ryan Lu RYAN LU 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 15

REPLY BRIEF by Dennis Lee Ott.

Case 3:17-cv-08051-SPL Document 16 Filed 09/20/17 Page 1 of 4 Howard D. Olinsky, Esq. 1 Admitted Pro Hac Vice 2 Olinsky Law Group One Park Place 3 300 South State Street, Suite 420 Syracuse, NY 13202 4 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 5 holinsky@windisability.com 6 Attorney for Plaintiff Dennis Lee Ott 7 IN THE UNITED STATES DISTRICT COURT 8 DISTRICT OF ARIZONA 9 Dennis Lee Ott, 10 Plaintiff, Civil No. 3:17-cv-08051-SPL 11 vs. 12 PLAINTIFF’S BRIEF 13 Nancy A. Berryhill, Acting Commissioner of Social 14 Security, 15 Defendant 16 PLAINTIFF’S REPLY BRIEF 17 IN SUPPORT OF A SOCIAL SECURITY APPEAL 18 1. The ALJ committed harmful error in failing to properly weigh the opinion from Dr. Joe (Reply to Defendant’s Point I) 19 Defendant argues that the ALJ gave two valid reasons for discounting Dr. Joe’s 20 opinions, in that the opinion was "inconsistent with the overall medical evidence of 21 record," and was at odds with Plaintiff’s daily activities. Dkt. No 15 at 7-8, citing Tr. 40. 22 23 However, as outlined in Plaintiff’s opening brief, these reasons are not valid. 24 Like the ALJ, Defendant points out that Dr. Joe reported normal ranges of motion, 25 strength, stability, and reflexes on multiple occasions. Dkt. No. 15 at 8. Plaintiff’s brief 26 27 1 28 Case 3:17-cv-08051-SPL Document 16 Filed 09/20/17 Page 2 of 4 details his significant treatment history for severe headaches that failed to substantially 1 2 improve with any treatment. Dkt. No. 14 at 17-18. Thus, Dr. Joe’s opinion was 3 consistent with his treatment notes documenting severe headaches. Further, the "normal" 4 examination findings Defendant recites have no bearing on the limitations associated 5 with Plaintiff’s headaches; indeed, Defendant asserts no basis for the contention that 6 headaches would impact strength, sensation, reflexes, or range of motion. Dkt. No. 15 at 7 8. Like the ALJ, in focusing on these irrelevant, yet normal findings, Defendant ignores 8 the evidence consistent with Dr. Joe’s opinion, such as such as Plaintiff’s presentation in 9 10 painful distress (T 901), significant occipital notch tenderness (T 428, 433), or tenderness 11 to palpation of the right occipital area where the occipital nerve emerges from the base of 12 the skull (T 800, 845), and significant tension in the temporalis muscles bilaterally, with 13 limited range of motion in the neck. T 846. Thus, the normal findings in Plaintiff’s body 14 systems not affected by migraine headaches are not relevant to the limitations he 15 experiences due to headaches. 16 Similarly, Defendant’s and the ALJ’s reliance on Plaintiff’s generally normal daily 17 18 activities is disingenuous. Indeed, Plaintiff has not alleged an unreasonably restricted 19 exertional functional capacity, and testified that, when he does not have headaches, he is 20 able to perform his daily activities without limitation. T 64-65. Conversely, when he was 21 suffering headaches, he becomes significantly slower, or may go into a dark room with an 22 ice pack until the pain passes. T 68. His activities, such as attending church or driving 23 are often interrupted if he experiences a headache. T 69-70. He loses the ability to focus 24 25 and concentrate when he gets headaches. T 73-74. Thus, his daily activities, as impacted 26 by headaches, are consistent with Dr. Joe’s opinion. 27 2 28 Case 3:17-cv-08051-SPL Document 16 Filed 09/20/17 Page 3 of 4 Therefore, the ALJ erred in rejecting Dr. Joe’s opinion, and Defendant’s second 1 2 argument, that the ALJ was not required to include the opined limitations for migraines in 3 the RFC, also fails. Defendant argues that the ALJ properly rejected Plaintiff’s testimony 4 and Dr. Joe’s opined limitations, and was not required to include limitations in the RFC 5 consistent with Plaintiff’s migraine symptoms. However, this is incorrect. 6 The Ninth Circuit has held that an ALJ errs when he finds migraine headaches 7 "severe" but fails "to include limitations reflecting the severity of the migraine headaches 8 in [Plaintiff]’s residual functional capacity (RFC) and in the hypothetical posed to the 9 10 VE." Lewis v. Comm'r of Soc. Sec. Admin., 293 F. App'x 495, 496–97 (9th Cir. 2008). 11 The ALJ’s failure to include any limitations in the RFC which corresponds to Plaintiff’s 12 severe limitations is error, and renders the RFC incomplete. SSR 96-8p ("In assessing 13 RFC, the adjudicator must consider limitations and restrictions imposed by all of an 14 individual's impairments."). 15 Therefore, the RFC is not supported by substantial evidence, because it does not 16 include any limitation which corresponds to Plaintiff’s severe impairment of migraine 17 18 headaches, and the ALJ improperly excluded the limitations opined by Plaintiff’s treating 19 physician, Dr. Joe. 20 For these reasons and the reasons presented in Plaintiff’s opening brief, this matter 21 should be remanded for further administrative proceedings. 22 23 September 20, 2017/s/Howard Olinsky 24 Howard Olinsky, Esq. Olinsky Law Group 25 Admitted Pro Hac Vice Attorneys for Plaintiff 26 27 3 28 Case 3:17-cv-08051-SPL Document 16 Filed 09/20/17 Page 4 of 4 One Park Place 1 300 South State Street, Suite 420 2 Syracuse, New York 13202 Phone: (315) 701-5780 3 Facsimile: (315) 701-5781 Email: holinsky@windisability.com 4 5 6 CERTIFICATE OF SERVICE 7 I hereby certify that on September 20, 2017, I electronically filed Plaintiff’s reply 8 brief with the Clerk of the District Court using the CM/ECF system, which sent 9 notification of such filing to the following: 10 11 To: Ryan Lu 12 Special Assistant United States Attorney Office of the General Counsel 13 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 14 Seattle, WA 98104-7075 15 State Bar No. OR105902 Fax: (206) 615-2531 16 ryan.lu@ssa.gov Telephone: (206) 615-2034 17/s/Howard D. Olinsky ___________________________ 18 Howard D. Olinsky, Esq. 19 Attorney for Plaintiff 20 21 22 23 24 25 26 27 4 28

ORDER - The final decision of the Commissioner of Social Security is vacated and remanded to the Commissioner of the Social Security Administration for further proceedings consistent with this order. IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly and terminate this action. See document for complete details. Signed by Judge Steven P Logan on 9/10/2018.

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Dennis Lee Ott, No. CV-17-08051-PCT-SPL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Dennis Lee Ott seeks judicial review of the denial of his application for 16 disability insurance benefits under the Social Security Act, 42 U.S.C. § 405(g). 17 A person is considered "disabled" for the purpose of receiving social security 18 benefits if he or she is unable to "engage in any substantial gainful activity by reason of 19 any medically determinable physical or mental impairment which can be expected to 20 result in death or which has lasted or can be expected to last for a continuous period of 21 not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The Social Security Administration's 22 decision to deny benefits should be upheld unless it is based on legal error or is not 23 supported by substantial evidence. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 24 (9th Cir. 2008). "Substantial evidence is more than a mere scintilla but less than a 25 preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citation 26 omitted). "It means such relevant evidence as a reasonable mind might accept as 27 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) 28 (citation omitted). The Court must review the record as a whole and consider both the 1 evidence that supports and the evidence that detracts from the ALJ's determination. 2 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 3 Plaintiff argues that the Administrative Law Judge ("ALJ") accorded inadequate 4 weight to the opinion of Plaintiff's treating physician, Dr. Sungman Joe, and as a result, 5 the residual functional capacity determination is not supported by substantial evidence. 6 "If the ALJ wishes to disregard the opinion of the treating physician, he or she must make 7 findings setting forth specific, legitimate reasons for doing so that are based on 8 substantial evidence in the record." Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) 9 (quotation omitted). "The ALJ can meet this burden by setting out a detailed and 10 thorough summary of the facts and conflicting clinical evidence, stating his interpretation 11 thereof, and making findings." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 12 Here, the ALJ gave Dr. Joe's opinion little weight because it was inconsistent with 13 the overall medical evidence and Plaintiff's demonstrated activities (AR1 40; Doc. 14 at 14 16). Specifically, the ALJ noted that Plaintiff's headaches somewhat improved with 15 injections and pain medication, his examinations included normal findings (gait, range of 16 motion, strength sensation, and reflexes), and he demonstrated the ability to perform 17 normal daily activities in his personal life (AR 40). In reviewing the record, however, the 18 Court finds that the evidence relied upon by the ALJ is not inconsistent with Dr. Joe's 19 medical opinion. 20 First, the ALJ's reliance on Plaintiff's improvement with injections and pain 21 medications as a means of discounting the functional limitations opined to by Dr. Joe was 22 improper. Findings that Plaintiff experienced brief respites from pain (see, e.g., AR 948) 23 or occasional improvement to pain symptoms (see, e.g., AR 1031, 893) does not negate 24 the concurrent medical findings of both persistent low grade headaches and spikes in pain 25 (see, e.g., AR 833, 893). In fact, in rejecting Dr. Joe's opinion, the ALJ notes that 26 Plaintiff's pain only somewhat improved with injections and pain medication. Based on 27 the totality of the circumstances, the Court finds that the ALJ's narrow reliance on certain 28 1 Administrative Record -2- 1 responses to pain management treatment is insufficient and fails to address all of the 2 relevant evidence in the record. Second, although Plaintiff's treatment notes often 3 describe him as presenting with normal gait, full range of motion, strength sensations, 4 and reflexes during examinations, the ALJ has not explained how such findings are 5 inconsistent with the limitations assessed by Dr. Joe. And finally, the Court notes that 6 "[t]he Social Security Act does not require that claimants be utterly incapacitated to be 7 eligible for benefits." Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The fact that 8 Plaintiff performs basic living activities, attends church, and drove fifty miles to attend 9 one consultative psychological examination does not equate to the level of evidence 10 required to find the allegation of pain to be incredible. See Reddick v. Chater, 157 F.3d 11 715, 722 (9th Cir. 1998) ("[D]isability claimants should not be penalized for attempting 12 to lead normal lives in the face of their limitations."); Howard v. Heckler, 782 F.2d 1484, 13 1488 (9th Cir. 1986) (finding periodic restricted travel did not negate a finding of 14 disability). Nothing in the record indicates that Plaintiff is able to spend a substantial part 15 of his day engaged in physical functions that are transferrable to the workplace, or that he 16 is able to do so without breaks or rest. Fair, 885 F.2d at 603. The Court thus finds the 17 ALJ's reasons for rejecting Dr. Joe's medical opinion to be insufficient. 18 It is in this Court's discretion to reverse and remand for an award of benefits or 19 further proceedings. Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). In this 20 case, remand is appropriate to properly consider Dr. Joe's medical opinion. Accordingly, 21 22 23 24 25 26 27 28 -3- 1 IT IS ORDERED that the final decision of the Commissioner of Social Security 2 is vacated and remanded to the Commissioner of the Social Security Administration for 3 further proceedings consistent with this order. 4 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment 5 accordingly and terminate this action. 6 Dated this 10th day of September, 2018. 7 8 9 Honorable Steven P. Logan 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

CLERK'S JUDGMENT - Pursuant to the Court's Order filed September 11, 2018, the decision of the Commissioner of Social Security is vacated, and this case is remanded to the Social Security Administration for further proceedings consistent with the Order.

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jerry Gilligan, NO. CV-18-08051-PCT-ROS (MHB) 10 Plaintiff, JUDGMENT IN A CIVIL CASE 11 v. 12 Don Bischoff, et al., 13 Defendants. 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 September 11, 2018, the decision of the Commissioner of Social Security is vacated, and 19 this case is remanded to the Social Security Administration for further proceedings 20 consistent with the Order. 21 Brian D. Karth District Court Executive/Clerk of Court 22 23 September 11, 2018 s/ A. Duran 24 By Deputy Clerk 25 26 27 28

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Description
03/20/2017
PRO HAC VICE FEE PAID. $ 35, receipt number PHX183405 as to Howard D Olinsky. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
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03/14/2017
COMPLAINT filed by Dennis Lee Ott. (submitted by Howard Olinsky)
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Letter
2
Civil Cover Sheet
2 Attachments
2
03/14/2017
APPLICATION for Leave to Proceed In Forma Pauperis (Long Form) by Dennis Lee Ott. (submitted by Howard Olinsky)
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03/14/2017
SUMMONS Submitted by Dennis Lee Ott. (submitted by Howard Olinsky)
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Summons
2
Summons
2 Attachments
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03/14/2017
This case has been assigned to the Honorable Steven P Logan. All future pleadings or documents should bear the correct case number: CV-17-08051-PCT-SPL. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached.
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03/14/2017
ORDER granting [2] Motion for Leave to Proceed In Forma Pauperis. Plaintiff may proceed in forma pauperis without prepayment of costs or fees or the necessity of giving security. IT IS FURTHER ORDERED that Plaintiff shall be responsible for service by waiver or of the summons and complaint. Signed by Judge Steven P. Logan on 3/14/17.
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03/14/2017
SCHEDULING ORDER (See Order for details). Signed by Judge Steven P. Logan on 3/14/17.
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03/15/2017
MOTION for Admission Pro Hac Vice as to attorney Howard D. Olinsky by Dennis Lee Ott.
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03/15/2017
Summons Issued as to SSA Office of General Counsel, U.S. Attorney and U.S. Attorney General.
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Summons
2
Summons
2 Attachments
9
03/20/2017
ORDER pursuant to General Order 09-08 granting 7 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
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04/11/2017
SERVICE EXECUTED filed by Dennis Lee Ott: Return of Service re: Summons, Complaint and Scheduling Order upon US Attorney's Office, Office of General Counsel, Attorney General on 4/7/2017.
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06/06/2017
NOTICE of Appearance by Ryan Ta Lu on behalf of Commissioner of Social Security Administration.
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06/06/2017
ANSWER to [1] Complaint by Commissioner of Social Security Administration.
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06/06/2017
NOTICE of Filing Certified Copy of Administrative Transcript re: [12] Answer to Complaint filed by Commissioner of Social Security Administration.
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001 Certification Page
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002 Court Transcript Index
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003 Documents Related to Administrative Process Including Transcript of Oral He
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004 Payment Documents and Decisions
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005 Jurisdictional Documents and Notices
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006 Non Disability Related Development
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007 Disability Related Development
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008 Medical Records Part 1
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009 Medical Records Part 2
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010 Medical Records Part 3
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011 Medical Records Part 4
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012 Medical Records Part 5
12 Attachments
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08/07/2017
OPENING BRIEF by Dennis Lee Ott.
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09/05/2017
RESPONSE BRIEF by Commissioner of Social Security Administration.
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09/20/2017
REPLY BRIEF by Dennis Lee Ott.
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09/11/2018
ORDER - The final decision of the Commissioner of Social Security is vacated and remanded to the Commissioner of the Social Security Administration for further proceedings consistent with this order. IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly and terminate this action. See document for complete details. Signed by Judge Steven P Logan on 9/10/2018.
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09/11/2018
CLERK'S JUDGMENT - Pursuant to the Court's Order filed September 11, 2018, the decision of the Commissioner of Social Security is vacated, and this case is remanded to the Social Security Administration for further proceedings consistent with the Order.
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