Pattison v. Colvin
Court Docket Sheet

District of Alaska

3:2016-cv-00174 (akd)

MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Howard D. Olinsky. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2318867.) by Charmaine Pattison.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA CHARMAINE PATTISON, Case No. 3:16-cv-000174-RRB Plaintiff(s), MOTION AND APPLICATION OF vs. NON-ELIGIBLE ATTORNEY FOR NANCY A. BERRYHILL, PERMISSION TO APPEAR AND Acting Commissioner of Social Security, PARTICIPATE IN THE UNITED STATES DISTRICT COURT Defendant(s). FOR THE DISTRICT OF ALASKA To the Honorable Judge of the above-entitled court: I, Howard D. Olinsky, hereby apply for permission to appear and (name) participate as counsel for Charmaine Pattison, plaintiff, (Name of party) (plaintiff/defendant) in the above-entitled cause pursuant to Rule 83.1 (d) of the Local Rules for the United States District Court, District of Alaska. I hereby apply for permission to appear and participate as counsel WITHOUT ASSOCIATION of local counsel because [check whichever of the following boxes apply, if any]: I am a registered participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. I have concurrently herewith submitted an application to the Clerk of the Court for registration as a participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. For the reasons set forth in the attached memorandum. Case 3:16-cv-00174-RRB Document 20 Filed 04/20/17 Page 1 of 4 OR I hereby designate, a member of the Bar of this court, (Name) who maintains an office at the place within the district, with whom the court and opposing counsel may readily communicate regarding conduct of this case. DATE: (Signature) Howard D. Olinsky (Printed Name) (Address) (City/State/Zip) (Telephone Number) (e-mail address) Consent of Local Counsel* I hereby consent to the granting of the foregoing application. DATE: (Signature) (Printed Name) (Address) (City, State, Zip) (Telephone) (*Member of the Bar of the United States District Court for the District of Alaska) Case 3:16-cv-00174-RRB Document 20 Filed 04/20/17 Page 2 of 4 DECLARATION OF NON-ELIGIBLE ATTORNEY Full Name: Howard D. Olinsky Business Address: 300 S. South Street, Ste. 420, Syracuse, NY 13202 (Mailing/Street) (City, State, ZIP) Residence: 4435 Swissvale Drive, Manlius, NY 13104 (Mailing/Street) (City, State, ZIP) Business Telephone: 315-701-5780 e-mail address: holinsky@windisability.com Other Names/Aliases: N/A Jurisdictions to Which Admitted and year of Admission: See attached sheet (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) Are you the subject of any pending disciplinary proceeding in any jurisdiction to which admitted? Yes No (If Yes, provide details on a separate attached sheet) Have you ever been suspended from practice or disbarred in any jurisdiction to which admitted? Yes No (If Yes, provide details on a separate attached sheet) In accordance with D.AK. LR 83.1(d)(4)[A](vi), I certify I have read the District of Alaska local rules by visiting the court's website at http://www.akd.uscourts.gov and understand that the practices and procedures of this court may differ from the practices and procedures in the courts to which I am regularly admitted. A Certificate of Good Standing from a jurisdiction to which I have been admitted is attached. Pursuant to 28 U.S.C. §1746, I hereby declare under penalty of perjury that the foregoing information is true, correct, and accurate. Dated: April 20, 2017 s/Howard D. Olinsky (Signature of Applicant) Case 3:16-cv-00174-RRB Document 20 Filed 04/20/17 Page 3 of 4 Attachment to Pro Hac Vice Application for Howard D. Olinsky: Court Date of Admission In Good Standing? New York State 02/07/1986 YES State of Georgia 01/23/2014 YES United States Supreme Court 04/01/1991 YES Court of Appeals for 2nd Circuit 11/01/2002 YES Court of Appeals for 6th Circuit 10/15/2013 YES Court of Appeals for Federal Circuit 06/12/2007 YES U.S. Court of Veteran’s Appeals, Washington D.C. 06/12/2007 YES U.S.D.C., NDNY 04/22/1986 YES U.S.D.C., WDNY 01/29/2001 YES U.S.D.C., EDNY 03/21/2003 YES U.S.D.C., SDNY 03/25/2003 YES U.S.D.C., DCT 12/10/2010 YES U.S.D.C., NDFL 10/31/2011 YES U.S.D.C., EDMI 02/25/2013 YES U.S.D.C., WDMI 12/26/2013 YES U.S.D.C., EDTX 12/20/2013 YES U.S.D.C., EDAR 01/03/2014 YES U.S.D.C., WDAR 01/03/2014 YES U.S.D.C., MDGA 01/28/2014 YES U.S.D.C., NDIL 01/30/2014 YES U.S.D.C., NDGA 02/10/2014 YES U.S.D.C., EDWI 04/14/2014 YES U.S.D.C., NDTX 05/15/2014 YES U.S.D.C., DCO 06/18/2014 YES U.S.D.C., SDGA 06/02/2014 YES U.S.D.C., WDWI 07/03/2014 YES U.S.D.C., WDTX 09/15/2014 YES U.S.D.C., NDIN 08/04/2015 YES U.S.D.C., CDIL 09/24/2015 YES U.S.D.C., SDIL 09/25/2015 YES U.S.D.C., EDMO 04/13/2017 YES Case 3:16-cv-00174-RRB Document 20 Filed 04/20/17 Page 4 of 4

Certificate of Good Standing

AO 136 (Rev. 10/13) Certificate of Good Standing UNITED STATES DISTRICT COURT for the Northern District of New York CERTIFICATE OF GOOD STANDING I, Lawrence K. Baerman, Clerk of this Court, certify that HOWARD D. OLINSKY, Bar # 102297, was duly admitted to practice in this Court on April 22, 1986, and is in good standing as a member of the Bar of this Court. Dated at Syracuse, New York on March 27, 2017 (Location) (Date) Lawrence K. Baerman CLERK DEPUTY CLERK Case 3:16-cv-00174-RRB Document 20-1 Filed 04/20/17 Page 1 of 1

ORDER Remanding for Payment of Benefits (Docket No. [12]). Signed by Judge Ralph R. Beistline on 9/30/17. (LLR, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA CHARMAINE PATTISON, Plaintiff, Case No. 3:16-cv-00174-RRB vs. ORDER REMANDING FOR NANCY A. BERRYHILL, Acting PAYMENT OF BENEFITS Commissioner of Social Security, (Docket No. 12) Defendant. I. INTRODUCTION Claimant, Charmaine Pattison, filed applications for SSDI and SSI disability benefits on January 13, 2014. 1 The applications were denied, and Plaintiff requested a hearing before an ALJ. On February 1, 2016, after a hearing, the ALJ issued a decision finding Plaintiff not disabled. 2 The Appeals Council denied a request for review. 3 Ms. Pattison has exhausted her administrative remedies and seeks relief from this Court. 4 She argues that the determination by the Social Security Administration ("SSA") that she is not disabled, within the meaning of the Act, is not supported by substantial evidence and that the ALJ committed legal errors. 5 Claimant seeks a reversal of the decision by the SSA and a remand for calculation of benefits. 6 1 Tr. 180–82, 183–91. 2 Tr. 17–36. 3 Tr. 1–6. 4 Docket Nos. 1, 12. 5 Docket 12. 6 Id. Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 1 of 28 The Commissioner of the SSA ("Commissioner") filed an answer to the complaint and an answering brief in opposition. 7 Parties did not request oral argument and one was not necessary to the Court’s determination. For the reasons set forth below, Claimant’s Motion for Remand at Docket 12 is GRANTED, the Commissioner’s final decision is VACATED, and the case is REMANDED for calculation of benefits. II. STANDARD OF REVIEW A decision by the Commissioner to deny disability benefits will not be overturned unless it is either not supported by substantial evidence or based upon legal error. 8 "Substantial evidence" has been defined by the United States Supreme Court as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 9 Such evidence must be "more than a mere scintilla," but also "less than a preponderance." 10 In making its determination, the Court considers the evidence in its entirety, weighing both the evidence that supports and that which detracts from the ALJ’s conclusion. 11 If the evidence is susceptible to more than one rational interpretation, the ALJ’s conclusion must be upheld. 12 Courts "review only the reasons provided by the ALJ and may not affirm the ALJ on a ground upon which he did not rely." 13 If an ALJ commits legal error, courts will uphold decision if it is harmless. 14 An error is harmless if it is "inconsequential to the ultimate nondisability determination." 15 7 Docket Nos. 10, 19. 8 Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)). 9 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 10 Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). 11 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 12 Gallant v. Heckler, 753 F.2d 1450, 1452–53 (9th Cir. 1984). 13 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). 14 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). 15 Id. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 2 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 2 of 28 III. DETERMINING DISABILITY The Act provides for the payment of disability benefits to individuals who have contributed to the social security program and who suffer from a physical or mental disability. 16 Disability is defined in the Act as follows: [I]nability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.17 The Act further provides: An individual shall be determined to be under a disability only if his physical or mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. 18 The Commissioner has established a five-step process for determining disability within the meaning of the Act. 19 A claimant bears the burden of proof at steps one through four in order to make a prima facie showing of disability. 20 If a claimant establishes a prima facie case, the burden of proof then shifts to the agency at step five. 21 The Commissioner can meet this burden 16 42 U.S.C. § 423(a) (2012). 17 42 U.S.C. § 423(d)(1)(A) (2012). 18 42 U.S.C. § 423(d)(2)(A) (2012). 19 20 C.F.R. § 404.1520(a)(4) (2014). 20 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014) (quoting Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007)); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 21 Treichler, 775 F.3d at 1096 n.1. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 3 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 3 of 28 in two ways: "(a) by the testimony of a vocational expert, or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. Pt. 404, subpt. P, App. 2." 22 Here, the ALJ found at step one that Plaintiff has not engaged in substantial gainful activity since the alleged onset date. At step two, the ALJ found Plaintiff has post-concussive syndrome, seizure disorder, cognitive disorder, and depression, and that those impairments were severe. 23 At step three, the ALJ found Plaintiff’s impairments did not meet or equal any listed impairment. 24 Before proceeding to step four, a claimant=s residual functional capacity ("RFC") is assessed. 25 Once determined, the RFC is used at both step four and step five. 26 An RFC assessment is a determination of what a claimant is able to do despite his or her physical, mental, or other limitations. In this case, the ALJ concluded that Ms. Pattison retained the RFC to perform: medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except the claimant is limited to no climbing of ladders, ropes, or scaffolds; the avoidance of all exposure to unprotected heights and hazardous machinery; frequent stooping and kneeling; occasional crouching; the avoidance of concentrated exposure to non-weather related extreme cold, extreme heat, wetness, humidity, and excessive noise; the avoidance of moderate exposure to excessive vibration; and work limited to simple, short, and repetitive tasks. 27 At step four, the ALJ found she was unable to perform her past relevant (skilled and sedentary) work as an accounting clerk, construction business manager, or administrative/executive assistant. 28 At step five, the ALJ found she could perform other (light and medium unskilled) work in the national economy, including laundry worker, auto detailer, and 22 Id. at 1099. 23 Tr. 22. 24 Tr. 23. 25 20 C.F.R. § 404.1520(a)(4) (2014). 26 Id. 27 Tr. 25. 28 Tr. 34. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 4 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 4 of 28 floor attendant at a bingo hall. 29 Accordingly, the ALJ determined that Ms. Pattison was not disabled at Step 5. IV. DISCUSSION Born in 1963, Claimant alleges disability beginning September 1, 2013, 30 based on a combination of impairments, including degenerative disc disease of the lumbar spine, degenerative joint disease of the right hip, post-concussive syndrome, seizure disorder, cognitive disorder, depressive disorder, and panic disorder. Claimant argues that the ALJ’s decision denying disability benefits is not supported by substantial evidence and that the ALJ committed legal errors in his determination to deny her benefits. Specifically, Claimant contends that the ALJ improperly rejected her testimony, the lay witness testimony, and the expert medical opinions of Plaintiff’s treating and examining providers. She also alleges that the ALJ’s vocational hypothetical did not include all of her restrictions, and that she cannot sustain work activity at any exertional level on a regular and continuing full-time basis. 31 The Commissioner argues that the ALJ’s findings are supported by substantial evidence and are free of harmful legal error. 32 Defendant requests affirmance of the Commissioner’s final decision and dismissal of Plaintiff’s complaint with prejudice. 29 Tr. 35. 30 Tr. 193. Throughout the administrative process, Claimant alleges she became disabled on the date of her car accident, which was September 14, 2013. The ALJ attaches significance to this discrepancy between September 1, 2013 (found on her applications), and September 14, 2013, using the discrepancy to suggest that Claimant is not credible. Tr. 30. The Court finds this two week discrepancy in the record unremarkable, and likely no more than a clerical error. 31 Docket 12 at 13. 32 Docket 19 at 2 (citing Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)). Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 5 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 5 of 28 A. Medical Source and Other Opinions "Regardless of its source, [the SSA] will evaluate every medical opinion [it] receive[s]." 33 Medical opinions come from three types of sources: those who treat the claimant ("treating sources"); those who examine, but do not treat the claimant ("examining sources"); and those who neither examine nor treat the claimant ("non-examining sources"). 34 In the event that medical sources disagree in their opinions, the ALJ is charged with the responsibility of determining credibility and resolving conflicts in medical testimony and ambiguities. 35 "As a general rule, more weight should be given to the opinion of a treating source than to the opinion of [sources] who do not treat the claimant." 36 "[A]n ALJ may reject a treating [source’s] medical opinion, if no other [medical source] has contradicted it, only for'clear and convincing’ reasons supported by substantial evidence.’" 37 The opinion of an examining—but non-treating—source generally should be given more weight than that of a non-examining source. 38 If the treating source’s opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques[,] and is not inconsistent with other substantial evidence," that opinion will be given controlling weight. 39 "If a treating [source’s] opinion is not given'controlling weight’ because it is not'well-supported’ or because it is inconsistent with other substantial evidence in the record, the [SSA] considers specified factors in determining the weight 33 20 C.F.R. § 404.1527(c) (2014). 34 Garrison, 759 F.3d at 1012. 35 Lewis v. Apfel, 236 F.3d 503, 517 (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). 36 Id. (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). 37 Id. (citing Reddick, 157 F.3d at 725). 38 Garrison, 759 F.3d at 1012 (citing Ryan v. Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008)). 39 20 C.F.R. § 404.1527(c)(2) (2014). Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 6 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 6 of 28 it will be given." 40 These factors include the length of the treatment relationship and the frequency of examination, as well as the nature and extent of the treatment relationship. 41 And when weighing a medical opinion, including that of a non-controlling treating source, the ALJ also must consider the extent to which the opinion is supported by relevant evidence (e.g., medical signs and laboratory results); the extent to which an opinion is consistent with other opinions and evidence in the record; whether the opinion is within the source’s area of specialization; and "other factors" such as the familiarity of the SSA disability benefits process and other information in the case record. 42 Applying these factors means that "[i]n many cases, a treating source’s medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight." 43 As such, even when a treating source’s opinion is contradicted by the opinion of an examining source who offers independent clinical findings (which constitutes substantial evidence), the treating source’s opinion is "still entitled to deference." 44 However, the conclusions of an examining source who relies on the same clinical findings as a treating source, but differs only in his or her conclusions, are not considered "substantial evidence." 45 If the treating source’s opinion is contradicted by another medical source, an ALJ may not reject a treating source’s opinion without "setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." 46 Likewise, the ALJ must provide clear and convincing reasons for rejecting an uncontradicted opinion of an examining source or 40 Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 41 20 C.F.R. § 404.1527(c)(2)(i),(ii) (2014). 42 Orn, 495 F.3d at 631 (citing 20 C.F.R. § 404.1527(c)). 43 Orn, 495 F.3d at 633. 44 Orn, 495 F.3d at 632–33 (citing "Giving Controlling Weight to Treating Source Med. Opinions," Social Security Ruling ("SSR") 96–2p, 1996 SSR LEXIS 9, 1996 WL 374188 (July 2, 1996)). 45 Orn, 495 F.3d at 632. 46 Id. (citing Murray v. Heckler, 722 F.3d 499, 501–02 (9th Cir. 1993)). Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 7 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 7 of 28 specific and legitimate reasons that are supported by substantial evidence in the record if contradicted. 47 When rejecting a medical source’s opinion, the ALJ cannot offer mere conclusions; instead "[h]e must set forth his own interpretations and explain why they, rather than the doctor’s, are correct." 48 This can be done by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings" 49 An ALJ may discredit a treating source’s opinion that is conclusory, brief, and unsupported by the record as a whole or by objective medical findings. 50 Contradictions between a doctor’s opinion and that doctor’s own clinical notes and observations "is a clear and convincing reason for not relying on the doctor’s opinion[.]" 51 The SSA requires any evidence submitted to be from "acceptable medical sources," which means licensed: physicians, psychologists, optometrists, and podiatrists, as well as qualified speech pathologists. 52 And an ALJ must take into consideration the functioning of a "treatment team" when determining what weight to give a medical source’s opinion. 53 Evidence from "other sources" is also permitted, but only to show the severity of an impairment and how it affects a claimant’s ability to work. 54 Other sources include: nurse practitioners, physicians’ assistants, 47 Lester, 81 F.3d at 830–31, as amended (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990); Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1990)). 48 Orn, 495 F.3d at 632 (citing Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988)). 49 Orn, 495 F.3d at 632 (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 50 Burrell, 775 F.3d at 1140 (quoting Batson v. Comm’r Soc. Sec. Admin, 359 F.3d 1190, 1195 (9th Cir. 2004)). 51 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 52 20 C.F.R. § 404.1513(a) (2014). 53 Benton ex rel. v. Barnhart, 331 F.3d 1030, 1039–40 (9th Cir. 2003). 54 20 C.F.R. § 404.1513(d) (2014). The Court is aware of amendments to 20 C.F.R. § 404.1513 in 2017. However, those amendments do not appear to be retroactive. "Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S. Ct. 468, 471, 102 L. Ed. 2d 493 (1988). Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 8 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 8 of 28 therapists, educational personnel, and social welfare agency personnel, as well as non-medical sources such as spouses, siblings, children, neighbors, and clergy. 55 An opinion made by someone who identified as an "other source" is considered competent evidence and an ALJ must "give reasons germane to each witness" to discount it. 56 In this case, numerous sources provided medical evidence and opinions that are pertinent to this appeal, including treating and examining sources, a nurse practitioner, a disability medical consultant, and one lay witness. 1. Emergency room records The records associated with the car accident ("MVA") on September 14, 2013, are limited. They reflect that Claimant was in a one-car, low impact velocity MVA. Her vehicle rolled over into the ditch. Claimant was wearing a lap and shoulder belt, and there was no damage noted to the vehicle. She arrived in the emergency room at 4:30 p.m., and at almost 6:00 p.m. she refused labs or diagnostic studies. 57 Although she denied a loss of consciousness or blow to the head,58 she was in an "altered mental status upon arrival of EMS per EMT’s." 59 ER records indicate she was distracted by a phone call, but elsewhere indicate that the cause of the accident was unknown. 60 Over two years later, Claimant visited the emergency room again due to a seizure that occurred "just prior to arrival." 61 55 Id. 56 Stout v. Comm’r Soc. Sec. Admin, 454 F.3d 1050, 1053 (9th Cir. 2006); Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). 57 Tr. 588. 58 Tr. 317. 59 Tr. 588. 60 Tr. 317–320. 61 Tr. 776. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 9 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 9 of 28 2. Dr. Tina Wells—treating physician Dr. Wells treated Claimant on October 3, 2013, just two weeks following the accident. Dr. Wells’ notes indicate that "she reports she has no short term memory," and "she feels like something is really wrong and is afraid to be alone, drive or make any major decisions."62 She observed that the ER notes and Claimant’s report on this date did not correlate, but "what I can decipher is that she has had a significant change in her personality since the MVA and it is causing significant anxiety and stress for her." 63 Dr. Wells noted that she had a "severe concussion," and that "memory loss and personality changes are common after that significant of head trauma." 64 Dr. Wells referred her for a neurology evaluation and "MRI/MRA of the brain for further evaluation." 65 On October 14, 2013, Dr. Wells signed a medical release indicating that Plaintiff should not return to work or drive "until further notice." 66 The ALJ gave no weight to this opinion, finding that it concerned an issue reserved to the Commissioner and was conclusory, in that Dr. Wells did not supply a rationale for her opinion. 67 But, as Claimant correctly notes, Dr. Wells had just examined Plaintiff and noted multiple abnormalities during the exam. Dr. Wells thought Plaintiff’s accident may have been caused by a seizure, 68 and determined that she should not drive or return to work until the seizure issue had been resolved. 69 Claimant argues that Dr. Wells’ recommendation should be considered in context with her treatment notes, which explain the rationale for her opinion. 62 Tr. 370. 63 Id. 64 Id. 65 Tr. 373. 66 Tr. 448. 67 Tr. 32. 68 Tr. 374. 69 Tr. 370–74. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 10 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 10 of 28 The Court finds that the ALJ improperly characterized Dr. Wells’ opinion as addressing an issue reserved to the Commissioner. Although a medical opinion is not binding on an ALJ with respect to the ultimate determination of disability or whether Plaintiff can do any work in the national economy, 70 a physician has every right, even a responsibility, to issue temporary work and driving restrictions under circumstances such as these. While it appears that Dr. Wells never lifted her "until further notice" restriction, what is important here is that two weeks after the MVA, a treating physician was concerned enough about Claimant’s erratic behavior to order brain scans and to be concerned about possible seizures. While Dr. Wells’ opinions on October 13, 2013, did not establish disability, her opinion should have been given weight proportional to the time and duration of Dr. Wells’ treatment of Claimant, and been considered in the context of Claimant’s longitudinal record. 3. Dr. Brian Trimble—treating neurologist Dr. Trimble saw Claimant in November 2013 for a neurology consultation, diagnosing complex partial epilepsy, idiopathic epilepsy, myofascial pain syndrome, and post-concussion syndrome. 71 An electroencephalogram was unremarkable. 72 Dr. Trimble saw Claimant again in March 2014 due to worsening headaches. 73 She also complained that her short term memory was "still very bad" six months after the MVA. 74 Dr. Trimble noted her continued complaints regarding poor appetite and sleep, irritability, and blue flashing lights and dark spots in her vision. Despite the ALJ’s finding that Dr. Trimble "documented no other significant memory or cognitive abnormalities," 75 the Court notes that, although Dr. Trimble found that her 70 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). 71 Tr. 584. 72 Tr. 301. 73 Tr. 288–91. 74 Tr. 288. 75 Tr. 29. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 11 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 11 of 28 post-concussive syndrome was "improving," he expressed concerns about unmanaged depression and "flashes of light which are suggestive of simple sensory seizures." He also increased her anti-seizure medication. 76 The ALJ was dismissive of Dr. Trimble’s findings, noting that Dr. Trimble opined that the flashes of light the Claimant alleges to experience are "suggestive of simple sensory seizures." 77 Neither Dr. Trimble nor the ALJ define "simple sensory seizures," but it is clear that the ALJ was skeptical whether Claimant was having seizures at all. 78 Dr. Trimble’s July 2014 records reflect that Claimant noticed some improvement in the flashes of light in her vision, in that they were no longer happening on a daily basis. 79 Dr. Trimble assessed posttraumatic epilepsy, noting that she was "seizure free," but still having visual auras. He again increased her anti-seizure medication and asked her to return in September. 80 The ALJ makes no mention of these July records. 4. Michele Susie, FNP-C—treating nurse practitioner Contrary to the ALJ’s assertions, Claimant’s treating nurse practitioner, FNP Susie, did treat Claimant for her mental health symptoms. 81 FNP Susie saw Claimant at the KIC Tribal Health Clinic in November and December 2013, noting "long term and short term memory loss since the MVA," 82 and discussing the possibility of seizures and possible triggering factors. 83 76 Tr. 290. 77 Tr. 28. 78 Id. The ALJ also notes that "none of the claimant’s seizures, sensory or convulsive, have been witnessed by a treatment provider." Id. The Court finds this fact unremarkable. 79 Tr. 515. 80 Tr. 516. 81 Tr. 350–51, 363–66. 82 Tr. 363. 83 Tr. 351. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 12 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 12 of 28 FNP Susie completed multiple questionnaires in January 2014 describing how Claimant’s seizure disorder, cognitive disorder, depression, anxiety, and post-concussive syndrome affected her ability to perform work activity. 84 FNP Susie’s opinion indicates Claimant would be limited to less-than-sedentary level of work, would need extra breaks throughout the work day, would have unpredictable seizures which would likely distract coworkers, 85 would be likely to be absent 3 or 4 times each month due to impairments, and would have multiple marked and moderate limitations in ability to perform work-related mental functions. The ALJ gave little weight to FNP Susie’s opinions because the ALJ asserted FNP Susie was not an acceptable medical source and did not explain what objective evidence she relied on in reaching her conclusions. As discussed above, the ALJ was required, at the time of his decision, to consider the nurse practitioner’s opinions. 20 C.F.R. § 404.1513 required the expertise of an "acceptable medical source" (a physician) to establish the existence of an impairment, but it also clearly stated that "other sources," may be used "to show the severity of your impairment(s) and how it affects your ability to work." 86 FNP Susie continued to treat Claimant into 2014, with chart notes reflecting "more frequent headaches" and "blue flashing lights" which were increasing in January 2014. 87 Plaintiff’s treating and examining doctors documented the MVA and diagnosed Claimant’s impairments. FNP Susie, her treating source at the Tribal Clinic, then was qualified to 84 Residual Functional Capacity Questionnaire (Tr. 342–43); Seizures Residual Functional Capacity Questionnaire (Tr. 745–49); Mental Capacity Assessment (Tr. 750–54). These forms all appear to have been filled out January 28, 2014. 85 These forms were filled out before Dr. Trimble’s observation that she appeared to be seizure-free in March 2014. 86 20 C.F.R. § 404.1513(d)(1)(2014). Social Security Ruling 06-03p specifically addressed the importance of reports from nurse practitioners. However, the Court notes that SSR 06-03p was rescinded in March 2017. Nevertheless, it was in place at the time that the ALJ considered Claimant’s case. 87 Tr. 344. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 13 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 13 of 28 describe how those impairments affect her ability to perform work activity. 88 Claimant argues that the physical restrictions FNP Susie recommended are consistent with the precautions necessary for someone with the unpredictable seizure disorder described by Dr. Wells and diagnosed by Dr. Trimble. 89 The Court finds that the ALJ has not provided clear and convincing reasons for rejecting FNP Susie’s opinions reflected in her assessments. Not only was she an acceptable "other source," but the records reflect that she was a treating provider who had the benefit of at least two treating physicians’ recent opinions, as well as her own clinical observations, when filling out the various assessments. FNP Susie continued to see Claimant into 2014, with August 2014 chart notes reflecting that Claimant still had chronic headaches, trouble concentrating, and memory loss a year after the MVA. 90 5. Dr. John Kesserling—examining psychologist Dr. Kesselring examined Claimant on July 29, 2014, at the request of the Alaska Disability Determination Unit. 91 He performed two short psychological tests, the second of which revealed results "consistent with impaired cognitive functioning, although not diagnostic in itself." 92 He concluded that "the results of this brief test, as well as her overall presentation, supports the contention that she is experiencing a degree of cognitive impairment that may interfere with some basic abilities such as concentration and memory." 93 He identified functional 88 20 C.F.R. § 404.1513 (2014). 89 See Tr. 584. 90 Tr. 677. 91 Tr. 433. 92 Tr. 435. 93 Id. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 14 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 14 of 28 impairments in activities of daily living, and diagnosed a cognitive disorder, NOS, and depressive disorder, NOS, with a GAF score of 45. 94 The ALJ found that Dr. Kesselring’s results "suggest a mild cognitive deficit, [but] such findings are not consistent with those of an individual with a disabling mental impairment."95 The ALJ gave no weight to the GAF score Dr. Kesselring assigned because the ALJ asserted the doctor did not explain what evidence he relied on in assigning that score. 96 But Claimant argues that Dr. Kesserling "did not provide a GAF score in isolation, but included it at the end of his report describing his observations and her test results... [and that] the ALJ’s assertion that Dr. Kesselring’s examination notes do not explain his conclusion with regard to the GAF score is improper and is not a clear and convincing reason for rejecting Dr. Kesselring’s opinion." The Court agrees. 97 More significant than the GAF score, the Court finds it concerning that the ALJ would dismiss an examining specialist’s finding that a patient was "experiencing a degree of cognitive impairment that may interfere with some basic abilities such as concentration and memory," 98 as "not consistent with those of an individual with a disabling mental impairment."99 While these findings may not be sufficient, standing alone, to warrant disability, they are not inconsistent with a disabling mental impairment, and should have been considered in conjunction with the rest of Claimant’s medical records. 94 Tr. 436. 95 Tr. 29. 96 Tr. 31. 97 The Commissioner argues that the ALJ reasonably rejected the GAFs score provided by Dr. Lizzi and Dr. Kesselring due to its subjectivity and contradiction with other evidence. Tr. 31, 33. The Court declines to delve too deeply into the value of GAF scores, given that such scores are no longer recognized in the DSM-V. 98 Tr. 435. 99 Tr. 29. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 15 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 15 of 28 6. Dr. Wandal Winn—state agency psychological consultant The ALJ gave "great weight" to the State agency psychological consultant retained to review Claimant’s medical records to render an opinion as to disability. 100 It is unclear if Dr. Winn personally examined the Claimant, or merely reviewed the records. In any event, he found the Claimant’s psychological testing "showed moderate limitations with cognitive abilities of concentration and memory." 101 Elsewhere, however, Dr. Winn indicated "the medical evidence shows severe limitations." 102 He indicated an assessment of "light RFC" and opined that she could do "short, simple, repetitive work." 103 The Court notes that the only physician opinion given "great weight" by the ALJ was a non-treating physician, who found Claimant had severe impairments and was capable of light work. Notably, this does not reconcile with the ALJ’s conclusion that Claimant could perform "medium work." 7. Dr. Luciano Lizzi—treating psychiatrist Plaintiff’s metal health practitioner, Dr. Lizzi, noted in March 2015 that diagnoses included history of traumatic brain injury, post-concussive syndrome, mood disorder with depressive features due to a medical condition, agoraphobia with panic attacks, and intermittent explosive disorder. Dr. Lizzi determined Claimant’s GAF score of 40. 104 The Commissioner argues that the ALJ legitimately relied upon the examination findings from other treatment providers to reject Dr. Lizzi’s opinion. For example, the ALJ noted that Dr. Trimble, the claimant’s neurologist, found that in March 2014 that Claimant "performed 100 Tr. 31, 77–88. 101 Tr. 81–82. 102 Tr. 88 (emphasis added). 103 Tr. 86. 104 Tr. 491–92. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 16 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 16 of 28 much better on the 1 minute category fluency test, and again documented no other significant memory or cognitive abnormalities." 105 But the Court finds that the ALJ’s reliance on Dr. Trimble’s brief test one year earlier is not "clear and convincing evidence" to reject Dr. Lizzi’s evaluation. 8. Claimant’s sister’s lay opinion An ALJ must consider testimony from lay witnesses submitted on behalf of a claimant. 106 If the ALJ wishes to discount the testimony of the lay witnesses, he must give reasons that are germane to each witness. 107 Here, Claimant’s sister filled out a Third Party Function Report indicating the limitations she observed in the Claimant. 108 The form was filled out thoroughly, was consistent with the medical reports in the record, and detailed the differences in Claimant from before and after the MVA. For example, she described Claimant as formerly an excellent cook who prepared meals daily, who now has to use only the microwave because she has burned herself on the stove several times. 109 "She has gone from driving, working, and socializing to staying at home."110 The ALJ found "to the extent [her] statements are similar to those of the claimant, I find those statements unpersuasive for reasons similar to why I find the claimant not wholly credible."111 The ALJ was particularly unimpressed with the fact that the sister’s contact with Claimant was "limited to'Daily phone contact.’" 112 The Court, however, finds that an individual who has known Claimant for 49 years, and who is in daily telephone contact with her, is in an excellent position 105 Tr. 29 (citing Tr. 289). 106 20 C.F.R. §§ 416.929(c)(3)(2011), 416.945(a)(3)(2012). 107 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). 108 Tr. 214–222. 109 Tr. 216. 110 Tr. 219. 111 Tr. 33. 112 Tr. 33, 214. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 17 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 17 of 28 to document Claimant’s before-and-after behaviors. Her descriptions are detailed, consistent with the medical records, and offer insights that only a layperson can offer into a person they know well. Accordingly, the Court finds the ALJ failed to provide clear and convincing reasons for dismissing this Third Party report. 9. Self-reports The ALJ takes issue with the degree to which the providers relied upon Claimant’s self-reports in determining her symptoms. But review of the treatment notes include diagnoses and proscribed treatments, including medications, as well as clinical findings as required. And notably, not a single physician or other provider—not even Dr. Winn—indicated concerns of malingering by Claimant at any point in time. Therefore, it was appropriate and reasonable for them to take Claimant’s self-reports into consideration. That being the case, it also was appropriate and reasonable for her sister to take Claimant’s self-reports into consideration when filling out her Third Party Function Report. The Court concludes that the ALJ failed to provide specific, clear and convincing reasons supported by substantial evidence for assigning opinions of virtually every treating physician little or no weight. Looking at the factors that the ALJ is required to consider when evaluating medical opinions, the Court finds that the ALJ did not take into consideration the length and frequency, or the nature and extent of, any of the physicians’ or nurse practitioners’ treating relationships with Claimant, or any of their areas of expertise. Additionally, the ALJ should not have summarily dismissed the lay opinion of Claimant’s sister. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 18 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 18 of 28 B. ALJ Findings 1. Claimant’s credibility The ALJ is charged with determining credibility, resolving conflicts in testimony, and resolving ambiguities in the record. 113 In a credibility determination, "an ALJ may engage in ordinary techniques of credibility evaluation, such as considering claimant’s reputation for truthfulness and inconsistencies in claimant’s testimony." 114 Inconsistencies in one subject matter carry over to overall credibility. 115 In order to find a claimant’s pain or symptom testimony not credible, the ALJ must make two findings. 116 First, the ALJ "must determine whether the claimant has presented objective medical evidence of an underlying impairment'which could reasonably be expected to produce the pain or other symptoms alleged.’" 117 Second, if the claimant has produced that evidence, and the ALJ has not determined that the claimant is malingering, the ALJ "must provide'specific, clear and convincing reasons for’ rejecting the claimant’s testimony regarding the severity of the claimant’s symptoms." 118 The Ninth Circuit has discussed the meaning of "specific, clear and convincing" reasons: the ALJ is required to "specifically identify the testimony from a claimant he or she finds not to be credible and... explain what evidence undermines [that] testimony;" general findings 113 Treichler, 775 F.3d at 1102. 114 Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 115 See e.g., Turner v. Comm’r of Social Sec., 613 F.3d 1217, 1225 (9th Cir. 2010) ("Because of this discrepancy in his testimony, the ALJ found that Turner could not be'found to be wholly credible regarding any allegation of total disability.’"). 116 Treichler, 775 F.3d at 1102. 117 Treichler, 775 F.3d at 1102 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). 118 Treichler, 775 F.3d at 1102 (quoting Smolen, 80 F.3d at 1281). Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 19 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 19 of 28 are insufficient. 119 An ALJ does not provide specific, clear, and convincing reasons for rejecting a claimant’s testimony "by simply reciting the medical evidence in support of his or her residual functional capacity determination." 120 Here, the ALJ found Plaintiff less than fully credible because the ALJ asserted her testimony was not supported by the objective evidence. Specifically, the ALJ asserted the following arguments. 121 First, he found that the record was unclear as to what caused the motor vehicle accident and whether or not she had a head injury. However, the cause of the accident is not relevant to a disability determination. Whether her condition manifested while she was driving and caused the accident, or whether it manifested after the accident, the emergency room report clearly states that she was in an altered state of consciousness at the scene. 122 Dr. Wells opined the accident may have been caused by a seizure, which would explain why she does not remember the details and why she has symptoms of a brain injury even though the record is not clear as to whether or not she hit her head. 123 The ALJ also noted that her seizures had not been witnessed by a doctor. Claimant argues that, although the treating neurologist may not have witnessed a seizure, the doctor opined her symptoms were consistent with a seizure disorder and provided "ever escalating doses of anti-seizure medication." 124 119 Treichler, 775 F.3d at 1102 (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001); Lester v. Chater, 81 F.3d at 834). 120 Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). 121 Tr. 27–29. 122 Tr. 588. 123 Tr. 370–74. 124 Docket 12, citing Tr. 288–90, 306, 515–16. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 20 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 20 of 28 The ALJ found that examination findings were not consistent between different doctors, and that the medication side effects she described were not documented in the record. But Claimant argues, and the Court’s review confirms, contrary to the ALJ’s assertions, her symptoms are consistent throughout the medical record. Each of her doctors has noted her chronic headaches, memory problems, anxiety, anger issues, and other issues discussed herein. Moreover, her medication side effects are documented throughout the record. 125 The ALJ found "inconsistent statements" regarding the extent of her injuries and the nature of her symptoms. 126 But Claimant argues that what the record does consistently reflect is that "she does not remember the accident or what led up to it, does not remember being removed from the scene, and does not remember why she wanted to leave the hospital that day without further evaluation." If she had a seizure which caused the car accident (which Claimant argues is what her doctors agree likely happened), then "it would make sense that she does not remember 125 Tr. 406, 484, 630, 717. The Court notes that although not discussed by the ALJ, various nurse practitioners continued to treat Claimant throughout 2014 and 2015. Their chart notes reflect that in December 2014, Claimant continued to be treated for "post concussion syndrome" and traumatic brain injury. Tr. 672. The records reflect that over a year after the MVA, she still complained of personality changes, short term memory loss, word searching, headaches, daily nausea, ongoing vision changes, imbalance, anger, anxiety and depression. She had not been medically released to drive, and she did not feel safe to drive. Tr. 669. Again in January 2015, a nurse practitioner noted that she was still restricted from work and driving, presumably due to the orders of Dr. Wells. Tr. 660. She continued to have confusion, memory loss, word confusion, and difficulty with reading and comprehension. Id. In August 2015 a nurse practitioner reviewed her medications, reiterating her chronic problems. Tr. 631–33. These records, at the very least, lend credibility to Claimant’s continuing symptoms and difficulties. 126 For example, the ALJ noted that "while the claimant complained of light and noise sensitivity, her treatment providers did not document observable evidence of light or noise sensitivity. Tr. 27. "Furthermore," the ALJ continued, "despite the claimant’s allegation that she has poor balance, her treatment providers and examiners consistently... found no evidence of balance problems." Id. But there is no requirement (nor is it a realistic expectation) that every discrete symptom be documented by clinical findings, or that a physician witness symptoms which are not constantly present (such as seizures). Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 21 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 21 of 28 exactly what happened and has made inconsistent statements about what caused the accident as a consequence of her confusion." 127 Finally, the ALJ cited Claimant’s sporadic work history as detrimental to her credibility. 128 But Claimant argues her earnings history shows steady earnings for several years up until the time of the 2013 accident. This, she argues, supports her assertion that impairments related to the accident are the reason she stopped working. The Court has reviewed the "Summary FICA Earnings" record generated by the government, which reflects limited FICA earnings between 1993 and 2002, as well as in 2006 and 2007. 129 However, records indicate quarterly earnings every year from 2008 through her date of injury in 2013. 130 According to her resume, from 1999 through 2006 she was employed doing bookkeeping and other work for the family business. 131 Accordingly, it is not surprising that government records do not show her receiving traditional income, since she was an owner of the business. Her resume reflects that she returned to working for others in August 2008, consistent with her FICA records. 132 The ALJ’s reference to "sporadic" employment does not take into consideration the many years she ran a family business. The ALJ has not specified which testimony he found not credible and has not provided clear and convincing reasons supported by evidence in the record to support his credibility determination. "An ALJ may not reject a claimant’s subjective complaints based solely 127 Docket 12 at 19–20. The Court also observes that Dr. Wells’ speculation, early on, that a seizure may have caused the MVA may also explain why Claimant’s description of the MVA changed over time, and why she made subsequent self-reports to other physicians that the MVA was caused by a seizure. 128 "A review of the claimant’s work history shows that the claimant worked only sporadically prior to the alleged disability onset date, which raises a question as to whether the claimant’s continuing unemployment is actually due to medical impairments." Tr. 30 (citing Tr. 200–01, 205–13, 232–39). 129 Tr. 197. 130 Tr. 201. 131 Tr. 261. 132 Tr. 197, 261. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 22 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 22 of 28 on a lack of medical evidence to fully corroborate the alleged severity of [symptoms]." 133 The Court concludes that the ALJ=s finding that Petitioner lacked credibility is not supported by substantial evidence. 2. Internal inconsistency of ALJ opinion A review of the ALJ decision reveals that the ALJ inconsistently asserted both that Claimant had the severe impairments of cognitive disorder and post-concussive syndrome (which the ALJ acknowledged at step two), and then expressed doubts about whether or not Claimant had those very impairments when making a credibility determination. 134 It is axiomatic that the ALJ cannot find impairments severe at step 2, and then subsequently find that those impairments may not exist in order to bootstrap a credibility issue. As Claimant argued, if the ALJ had questions about whether or not these impairments were medically determinable or severe, then step two of the sequential analysis would have been the proper place for those questions. 135 The inconsistency of the ALJ’s opinion is further compounded later in the opinion when the ALJ found that, "considering the evidence as a whole, the claimant’s allegations are credible to the extent that I find her limited to medium work with additional postural and environmental limitations... for purposes of limiting the claimant’s exposure to situations or environments in which she could come to harm because of seizure activity or headaches," 136 the very symptoms the ALJ suggested, just four pages earlier, may not even exist. The ALJ further 133 Treichler, 775 F.3d at 1102. 134 Tr. 30 ("I must question the diagnoses of post-concussive syndrome and mild cognitive disorder reportedly related to the claimant’s history of a head injury. Consequently, I must question the claimant’s credibility as it relates to allegations stemming from her motor vehicle accident."). 135 Docket 12 at 14–15. 136 Tr. 34 (emphasis added). Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 23 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 23 of 28 agreed Claimant had mental limitations which prevented her from returning to her past relevant skilled work. 137 The ALJ’s findings are irreconcilable. Overall, the ALJ seems suspicious of the cause of Claimant’s MVA, 138 skeptical that she sustained a head injury in the accident, 139 and skeptical that virtually any of her self-reported symptoms actually exist,140 despite nearly three years of medical records from multiple providers, none of whom suggest malingering, and which consistently reflect an individual who— for whatever reason—is remarkably different post-MVA than she was before. Indeed, the underlying cause of a claimant’s condition is not typically relevant to a disability analysis. If Claimant had never had the MVA, but presented with medical records such as those present here, the focus would be on the suspected seizure disorder and cognitive symptoms rather than the MVA. 3. Duty to develop the record "The ALJ always has a'special duty to fully and fairly develop the record and to assure that the claimant’s interests are considered... even when the claimant is represented by counsel.’" 141 "An'ALJ’s duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.’" 142 Here, the ALJ made multiple references to what the record did not contain. "The claimant alleges limitations on her ability to complete tasks, concentrate, understand, remember, and follow instructions.... However, the medical evidence of record does not include 137 Tr. 34. 138 Tr. 27 ("The claimant alleges that she was involved in a motor vehicle accident in September 2013."). 139 Tr. 27, 30 ("The examination records... do not include findings to support the claimant’s allegation that she experienced a head injury."). 140 Tr. 27–34 (repeated references to "alleged symptoms"). 141 Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (citing Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 142 McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (citing Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001)). Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 24 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 24 of 28 neuropsychological test results to support these allegations." 143 Noting that the examining psychologist, Dr. Kesselring, performed two brief tests, one of which suggested "impaired cognitive functioning," the ALJ noted that "other than the Trail Making Test, the claimant has not undergone neuropsychological testing." 144 "Considering the lack of neuropsychological test results and the inconsistencies between examination findings, I do not find the claimant’s allegations regarding the severity of her alleged mental impairments wholly credible." 145 If the ALJ did not feel comfortable finding a medically determinable impairment based on the medical records before him because there was a lack of testing to support the physician’s opinions, he had the ability—and duty—to rectify that concern, rather than to merely deny benefits. However, given that this Court finds the physicians’ opinions to be generally consistent, rather than inconsistent as the ALJ asserts, the Court sees no need to remand for further testing. C. Nature of Remand The remaining question is whether to remand for further administrative proceedings or simply for payment of benefits. "Where the ALJ improperly rejects the claimant’s testimony regarding his limitations, and the claimant would be disabled if his testimony were credited,'we will not remand solely to allow the ALJ to make specific findings regarding that testimony.’... Rather, that testimony is also credited as a matter of law." 146 Similarly, "[w]here the Commissioner fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, we credit that opinion "as a matter of law." 147 143 Tr. 28. 144 Id. 145 Tr. 29. 146 Lester, 81 F.3d at 834. 147 Id.; see also Schneider v. Comm’r SSA, 223 F.3d 968 (9th Cir. 2000). Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 25 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 25 of 28 But the Commissioner argues that the credit-as-true rule only justifies an award of benefits in narrow circumstances. 148 The court in Treichler held that when the court does not affirm the agency’s decision, remand for further proceedings, rather than an award of benefits, is "the proper course, except in rare circumstances." 149 Treichler further clarifies that the credit-as-true rule does not permit courts to simply "credit" evidence the ALJ did not properly address and award benefits without first assessing whether there are outstanding issues that must be resolved before a finding of disability may ensue. 150 The Ninth Circuit also has clarified that courts must "remand for further proceedings when, even though all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled." 151 The Commissioner argues that "this is not a rare case in which the Court would be justified in awarding benefits. Even if the Court finds error by the ALJ, as discussed in Commissioner’s brief above, the record contains evidentiary conflicts or ambiguities that make an award of benefits inappropriate and require further evaluation on remand." 152 The Court disagrees. Rarely does the Court encounter a case where disability was so clearly established, without any suggestion of substance abuse, malingering, or other circumstances where a claimant may face ambiguity as to entitlement to benefits. By all accounts, Claimant was a functional individual working in skilled positions prior to the MVA in 2013. After the MVA, she had dozens of visits with physicians, mental health providers, and nurse practitioners to address symptoms of disabling headaches, irritability, poor memory, personality changes, and the inability to complete tasks, concentrate, understand, 148 Treichler, 775 F.3d at 1099–02. 149 Id. at 1099. 150 Id. at 1105–06. 151 Garrison, 759 F.3d at 1021. 152 Docket 19 at 14. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 26 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 26 of 28 remember, and follow instructions. More than one provider diagnosed impaired cognitive functioning, and although physicians were unsuccessful (as of the last medical entry in the administrative record) in identifying the cause or successfully treating Claimant’s symptoms, not a single medical provider suggested that she was malingering or faking over the nearly three years that she sought treatment for her symptoms. Both psychologists who examined Plaintiff opined her GAF score was below 50, indicating severe symptoms. 153 Claimant was 50 years old on her alleged onset date. 154 The ALJ found Plaintiff was not able to perform any of her past relevant work and now is limited to unskilled work. The ALJ found, without explanation or support in the record, that a 50 year old woman who had performed only sedentary work in the past was now capable of medium work—a finding the Court finds difficult to reconcile with the record. The ALJ seemed hyperfocused on the cause of the MVA, which is irrelevant to a determination of disability. Whether the MVA caused the symptoms presented, or a seizure caused the MVA, or something else entirely is at play, Claimant suffers documented debilitating symptoms that remained unresolved in the record before this Court. Hypothetical questions posed to the vocational expert must set out all the limitations and restrictions of the particular claimant. 155 Here, in posing his hypothetical questions to the VE, the ALJ omitted Plaintiff’s credible allegations, those of the lay witness, and the limitations assessed by treating and examining doctors and treating nurse practitioner as detailed above. The issue is whether she can sustain activity for a full work day and work week. The record establishes that she cannot. The VE testimony established that a person who cannot sustain 153 Tr. 436, 455. 154 Claimant argues that FNP Susie’s opinion is properly credited, then she is limited to no more than sedentary level work and would be deemed disabled based on 20 C.F.R. Pt. 404, subpt. P, App. 2, Rule 201.14. Claimant is correct. 155 Embrey v. Bowen 849 F.2d 418, 423 (9th Cir. 1988). Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 27 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 27 of 28 a full 8-hour work day on a regular and continuing basis would not be able to perform competitive employment. 156 Claimant is disabled. V. CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that the Claimant=s Motion at Docket 12 is GRANTED, the ALJ’s decision is VACATED, and this matter is REMANDED for calculation of benefits effective September 14, 2013. Of course, the SSA is free to reevaluate any claimant’s condition to determine if his or her condition has improved such that they are no longer disabled. But in this matter, from September 14, 2013, through at least the date of the ALJ opinion, Ms. Pattison was entitled to Social Security disability benefits. IT IS SO ORDERED this 30th day of September, 2017, at Anchorage, Alaska./s/Ralph R. Beistline RALPH R. BEISTLINE Senior United States District Judge 156 Tr. 69. Pattison v. Berryhill Case No. 3:16-cv-00174-RRB Order Remanding for Payment of Benefits (Docket No. 12) Page 28 Case 3:16-cv-00174-RRB Document 22 Filed 09/30/17 Page 28 of 28

JUDGMENT: This matter is remanded back to the Social Security Administration for calculation of benefits effective 9/14/13. Signed by Judge Ralph R. Beistline on 10/2/17. (Additional attachment(s) added on 1/17/2018: # (1) Judgment with attorney fees and expenses - redistributed)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA CHARMAINE PATTISON, Plaintiff, Case Number 3:16-cv-00174-RRB v. NANCY A. BERRYHILL, Defendant. JUDGMENT IN A CIVIL CASE JURY VERDICT. This action came before the court for a trial by jury. The issues have been tried and the jury has rendered its verdict. XX DECISION BY COURT. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED: THAT this matter is remanded back to the Social Security Administration for calculation of benefits effective September 14, 2013. APPROVED: s/Ralph R. Beistline RALPH R. BEISTLINE United States District Judge Date: October 2, 2017 NOTE: Award of prejudgment interest, costs and attorney's fees are governed Lesley K. Allen by D.Ak. LR 54.1, 54.3, and 58.1. Clerk of Court [Jmt2-Basic-rev. 1-13-16} Case 3:16-cv-00174-RRB Document 23 Filed 10/02/17 Page 1 of 1

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

HOWARD D. OLINSKY, Esq. New York No. 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA CHARMAINE PATTISON, Plaintiff, Civil Action No. 3:16-cv-00174-RRB v- NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. ----------------------------------------------------------- Motion for Attorney's Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 COMES NOW Plaintiff, by her attorney, Howard D. Olinsky, moves the court for an award to be paid by the Defendant under the Equal Access to Justice Act, 28 USCS § 2412. Plaintiff may receive an award under the Equal Access to Justice Act because she is the prevailing party, is an individual whose net worth did not exceed two million dollars when the action was filed, and the position of the United States and at the agency was not substantially justified. There are no special circumstances in this case which make an award under the EAJA unjust. This motion is supported by a Declaration of Plaintiff's attorney, attached time and cost records and an Affidavit and Waiver of Direct Payment by the plaintiff. Executed this January 2, 2018 Respectfully submitted, /s/ Howard D. Olinsky Howard D. Olinsky New York Bar # 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com To: Summer Stinson, Esq. Special Assistant U.S. Attorney Office of General Counsel Social Security Administration 791 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3704 Fax: (206) 615-2531 E-mail: summer.stinson@ssa.gov

Proposed Order

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA CHARMAINE PATTISON, Plaintiff, Civil Action No. 3:16-cv-00174-RRB -v- NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. ----------------------------------------------------------- (Proposed) Order Awarding Attorney's Fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) Before the Court is the Motion of Plaintiff, Charmaine Pattison, for award of attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Based on the pleadings as well as the position of the defendant commissioner, if any, and recognizing the Plaintiff's waiver of direct payment and assignment of EAJA to her counsel, IT IS HEREBY ORDERED that attorney fees and expenses in the total amount of Six Thousand Four Hundred Fifty-Seven Dollars and Sixty-Four Cents ($6,457.64) pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) are awarded to Plaintiff. Astrue v. Ratliff, 130 S.Ct. 2521 (2010). The Court hereby awards EAJA fees, broken down as follows: 1. Plaintiff is awarded $6,437.72 for paralegal and attorney's fees under 28 U.S.C. § 2412(d); 2. Plaintiff is awarded $19.92 in expenses for Certified Mail for service of Summons and Complaint. If the U.S. Department of the Treasury determines that Plaintiff's EAJA fees and expenses are not subject to offset allowed under the Department of the Treasury's Offset Program (TOPS), then the check for EAJA fees and expenses shall be made payable to Plaintiff's attorney, Howard D. Olinsky. Whether the check is made payable to Plaintiff or to Howard D. Olinsky, the check shall be mailed to Howard D. Olinsky at the following address: 300 South State Street Suite 420 Syracuse, NY 13202 So ordered. Date: ________________ ______________________________ Ralph R. Beistline Senior United States District Judge [proposed Order proffer: Howard D. Olinsky; copy to Summer Stinson]

DECLARATION of Howard D. Olinsky, Esq. re [24] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Charmaine Pattison.

HOWARD D. OLINSKY, Esq. New York No. 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA CHARMAINE PATTISON, Plaintiff, Civil Action No. 3:16-cv-00174-RRB v- NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. ----------------------------------------------------------- Attorney's Affirmation in Support Of Fees Pursuant To the Equal Access to Justice Act, 28 U.S.C. § 2412 ________________________________________ Howard D. Olinsky, affirms and declares as follows: 1. I am an attorney licensed to practice law in the State of New York and admitted to the District of Alaska Federal Court Pro Hac Vice and I am the plaintiff's attorney in this matter. 2. I make this affirmation knowing that the Court will rely upon it assessing any awards under the Equal Access to Justice Act disposed of under 28 USCS § 2412. 3. There are no special circumstances in this case which make an award under the EAJA unjust. 4. The Court ordered on September 30, 2017 that the above-entitled case be remanded for calculation of benefits, under the fourth sentence of 42 U.S.C. § 405(g). 5. For the Equal Access to Justice Act, I am requesting an hourly rate of $192.68 for attorney time. See generally, http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 U.S.C.A 9th Circuit EAJA Table. If attorney fees are calculated at this rate for 29 hours of work performed, they total $5,587.72. 6. I am also requesting $100.00 per hour for 8.5 hours of paralegal time equaling $850.00. I am requesting $6,437.72 for Counsel fees which includes both attorney and paralegal time. 7. The time accounting is presented to the court in two fashions. The total compensable time spent by all professional staff (Exhibit A); the total compensable time spent by all attorneys (Exhibit B); the total compensable time spent by paralegals (Exhibit C). The attorneys involved in this case are as follows: Paul B. Eaglin, Esq., Howard D. Olinsky, Esq., Betsy R. Shepard, Esq., and Michelle Fecio, Esq. The paralegals involved in working on this case are as follows: Shannon Persse, Michelle Callahan, Michael Smith, Jonnah Graser, and Tamica Lockwood. 8. I am requesting reimbursement of expenses in the amount $19.92 for Certified Mail for service of the summons and complaint as shown in Exhibit D. 9. All services on this case were rendered by your affiant and my professional staff, unless specifically noted otherwise. The attached records were created and stored in the firms Prevail Database, and are printed out and attached. The itemized time represents hours spent preparing and handling this case for U.S. District Court. Clerical time is not included in this petition or has been zeroed out. 10. Attached is the Fee Agreement duly executed by the plaintiff (Exhibit E). Waiver of Direct Payment of EAJA Fees 11. Attached is an Affidavit and Waiver of Direct Payment duly executed by the plaintiff (Exhibit F). With this Waiver, if Plaintiff owes a debt that qualifies under the Treasury Offset Program (31 USCS § 3716), any payment shall be made payable to the Plaintiff and delivered to the Plaintiff's attorney. If the United States Department of Treasury determines that Plaintiff owes no debt subject to offset, the government will pay such fees directly to the Plaintiff's attorney. Astrue v. Ratliff, 560 U.S. 586 (U.S. 2010). Executed this January 2, 2018 Respectfully submitted, /s/ Howard D. Olinsky Howard D. Olinsky New York Bar # 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Email: fedctgroup@windisability.com To: Summer Stinson, Esq. Special Assistant U.S. Attorney Office of General Counsel Social Security Administration 791 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3704 Fax: (206) 615-2531 E-mail: summer.stinson@ssa.gov

Exhibit A All Professional Time

Exhibit A Ledger Pattison, Charmaine Date  Subject Hours Timekeeper 7/6/2016 Files received, reviewed and processed from referral source for Attorney review 0.6 Lockwood, Tamica 7/6/2016 Correspondence to Client re: Referral acknowledgment letter 0.2 Lockwood, Tamica 7/7/2016 Telephone call with Client re: Explained fdc process and review process 0 Lockwood, Tamica 7/7/2016 Review decisions and evidence to determine whether to appeal case 1 Eaglin, Paul B. 7/8/2016 Telephone call with Client re: New matter 0 Smith, Michael P. 7/11/2016 Telephone Call with Client re: Completed debt conference call, explained process 0.4 Smith, Michael P. 7/11/2016 FDC prospect packet prepared for Client completion 0.6 Smith, Michael P. 7/11/2016 FDC prospect packet sent via Right Signature for client completion 0.2 Smith, Michael P. 7/12/2016 FDC packet forms returned via Right Signature, reviewed for completion 0.3 Smith, Michael P. 8/11/2016 Draft complaint, proposed summons, civil cover sheet, and letter to clerk 0.6 Eaglin, Paul B. 8/11/2016 Review motion for leave in forma pauperis, approve for filing 0.2 Eaglin, Paul B. 8/12/2016 Federal Court -Accept Letter - New FDC Filing 0.3 Smith, Michael P. 8/16/2016 Review order granting In Forma Pauperis status, directing service of process 0.1 Eaglin, Paul B. 8/16/2016 Review summons issued (text notice only) 0.1 Eaglin, Paul B. 8/26/2016 Received and processed issued summons via USPS 0.1 Smith, Michael P. 8/26/2016 Review summons issued via USPS 0.2 Eaglin, Paul B. 8/26/2016 Federal Court-Service of Process- Prepare Service packets USAO, OGC, AG 0.6 Callahan, Michelle 9/2/2016 Review notice of appearance Richard Pomeroy o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 9/6/2016 Review docket annotation re: Opening Brief Motion Misc. Relief, make note 0.1 Eaglin, Paul B. 9/7/2016 Review scheduling order, calendar deadlines on task pad 0.3 Eaglin, Paul B. 9/12/2016 Telephone call with Client re: Status update 0 Lockwood, Tamica 9/12/2016 Combine and file proof of service via CM / ECF 0.3 Callahan, Michelle 9/13/2016 Review summons executed, record answer due date for monitoring 0.2 Eaglin, Paul B. 9/20/2016 Telephone call with Client re: Status update and letter from SSA 0 Lockwood, Tamica 9/21/2016 Telephone call with Client re: Status update (trouble remembering) 0 Lockwood, Tamica 9/27/2016 Telephone call with Client re: Status update, review forms SSA sent 0 Smith, Michael P. 9/29/2016 Review notice of appearance Summer Stinson o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 11/1/2016 Review answer to complaint 0.1 Eaglin, Paul B. 11/1/2016 Combine, OCR, and live bookmark Federal Court Transcript (834 pages) 0.9 Lockwood, Tamica 11/1/2016 Preliminary review of transcript - assign Attorney writer 0.5 Eaglin, Paul B. 11/23/2016 Review certified administrative record and take 6.5 Shephard, Betsy R. 11/28/2016 Continue reviewing CAR, taking notes, organize facts 1.5 Shephard, Betsy R. 11/29/2016 Drafting procedural section, drafting facts 8.3 Shephard, Betsy R. 11/30/2016 Research issues and drafting arguments 4.6 Shephard, Betsy R. 11/30/2016 Sr. Attorney review brief, implement edits, finalize & file brief (n/c filing) 1.3 Eaglin, Paul B. 12/28/2016 Review Defendant's motion for extension to file brief 0.1 Eaglin, Paul B. 12/28/2016 Review declaration of Summer Stinson re: motion for extension brief 0.1 Eaglin, Paul B. 37.50 (Client = Ms. Charmaine Pattison) and (Type = Time)    Date  Subject Hours Timekeeper 12/28/2016 Review text order granting Defendants extension, calendar reply deadline update 0.2 Eaglin, Paul B. 2/7/2017 Review Defendant's second motion for extension to file brief 0.1 Eaglin, Paul B. 2/7/2017 Review declaration of Summer Stinson re: second motion for extension brief 0.1 Eaglin, Paul B. 2/7/2017 Review text order granting Defendants extension, calendar reply deadline update 0.2 Eaglin, Paul B. 2/13/2017 Review docket annotation re: Nancy A. Berryhill acting Commissioner of SSA 0.1 Eaglin, Paul B. 2/17/2017 Telephone call with Client re: Status update 0.1 Lockwood, Tamica 2/20/2017 Review Defendant's response in opposition to motion to remand (15 pages) 0.3 Eaglin, Paul B. 2/20/2017 Assign Attorney writer to access / write reply 0.2 Eaglin, Paul B. 2/28/2017 Review CAR and briefs for reply assessment - no reply warranted 0.7 Fecio, Michelle 4/20/2017 Draft and file motion for pro hac vice admission 0 Olinsky, Howard D. 5/9/2017 Review order granting pro hac vice admission 0 Olinsky, Howard D. 5/19/2017 Telephone call with Client re: Status update 0.1 Lockwood, Tamica 8/2/2017 Telephone call with Client re: Status update 0.1 Smith, Michael P. 9/12/2017 Telephone call with Client re: Status update 0.1 Callahan, Michelle 9/29/2017 Telephone call with Client re: Status update 0.1 Callahan, Michelle 10/2/2017 Review order granting motion for reversal for calculation of benefits (28 pgs) 0.5 Olinsky, Howard D. 10/2/2017 Review judgment in favor of Charmaine Pattison re: calculation of benefits 0.1 Olinsky, Howard D. 10/3/2017 Federal Court-Remand Referral back to Referral Source 0.3 Graser, Jonnah 10/3/2017 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 10/18/2017 Telephone call with Client re: Reviewed remand of benefits 0.3 Graser, Jonnah 11/1/2017 Telephone call with Client re: Explanation of remand for benefits again 0.3 Graser, Jonnah 12/27/2017 EAJA Preparation 1.5 Persse, Shannon 12/27/2017 Review Timeslips Finalize EAJA Motion 0.5 Olinsky, Howard D. 1/2/2018 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 37.5 37.50 (Client = Ms. Charmaine Pattison) and (Type = Time)   

Exhibit B Attorney Time

Exhibit B Ledger Pattison, Charmaine Date  Subject Hours Timekeeper 7/7/2016 Review decisions and evidence to determine whether to appeal case 1 Eaglin, Paul B. 8/11/2016 Draft complaint, proposed summons, civil cover sheet, and letter to clerk 0.6 Eaglin, Paul B. 8/11/2016 Review motion for leave in forma pauperis, approve for filing 0.2 Eaglin, Paul B. 8/16/2016 Review order granting In Forma Pauperis status, directing service of process 0.1 Eaglin, Paul B. 8/16/2016 Review summons issued (text notice only) 0.1 Eaglin, Paul B. 8/26/2016 Review summons issued via USPS 0.2 Eaglin, Paul B. 9/2/2016 Review notice of appearance Richard Pomeroy o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 9/6/2016 Review docket annotation re: Opening Brief Motion Misc. Relief, make note 0.1 Eaglin, Paul B. 9/7/2016 Review scheduling order, calendar deadlines on task pad 0.3 Eaglin, Paul B. 9/13/2016 Review summons executed, record answer due date for monitoring 0.2 Eaglin, Paul B. 9/29/2016 Review notice of appearance Summer Stinson o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 11/1/2016 Review answer to complaint 0.1 Eaglin, Paul B. 11/1/2016 Preliminary review of transcript - assign Attorney writer 0.5 Eaglin, Paul B. 11/23/2016 Review certified administrative record and take 6.5 Shephard, Betsy R. 11/28/2016 Continue reviewing CAR, taking notes, organize facts 1.5 Shephard, Betsy R. 11/29/2016 Drafting procedural section, drafting facts 8.3 Shephard, Betsy R. 11/30/2016 Research issues and drafting arguments 4.6 Shephard, Betsy R. 11/30/2016 Sr. Attorney review brief, implement edits, finalize & file brief (n/c filing) 1.3 Eaglin, Paul B. 12/28/2016 Review Defendant's motion for extension to file brief 0.1 Eaglin, Paul B. 12/28/2016 Review declaration of Summer Stinson re: motion for extension brief 0.1 Eaglin, Paul B. 12/28/2016 Review text order granting Defendants extension, calendar reply deadline update 0.2 Eaglin, Paul B. 2/7/2017 Review Defendant's second motion for extension to file brief 0.1 Eaglin, Paul B. 2/7/2017 Review declaration of Summer Stinson re: second motion for extension brief 0.1 Eaglin, Paul B. 2/7/2017 Review text order granting Defendants extension, calendar reply deadline update 0.2 Eaglin, Paul B. 2/13/2017 Review docket annotation re: Nancy A. Berryhill acting Commissioner of SSA 0.1 Eaglin, Paul B. 2/20/2017 Review Defendant's response in opposition to motion to remand (15 pages) 0.3 Eaglin, Paul B. 2/20/2017 Assign Attorney writer to access / write reply 0.2 Eaglin, Paul B. 2/28/2017 Review CAR and briefs for reply assessment - no reply warranted 0.7 Fecio, Michelle 4/20/2017 Draft and file motion for pro hac vice admission 0 Olinsky, Howard D. 5/9/2017 Review order granting pro hac vice admission 0 Olinsky, Howard D. 10/2/2017 Review order granting motion for reversal for calculation of benefits (28 pgs) 0.5 Olinsky, Howard D. 10/2/2017 Review judgment in favor of Charmaine Pattison re: calculation of benefits 0.1 Olinsky, Howard D. 12/27/2017 Review Timeslips Finalize EAJA Motion 0.5 Olinsky, Howard D. 29 29.00 (Client = Ms. Charmaine Pattison) and (Type = Time) and ((Timekeeper = Eaglin, Paul B.) or (Timekeeper = Fecio, Michelle) or (Timek...   

Exhibit C Paralegal Time

Exhibit C Ledger Pattison, Charmaine Date  Subject Hours Timekeeper 7/6/2016 Files received, reviewed and processed from referral source for Attorney review 0.6 Lockwood, Tamica 7/6/2016 Correspondence to Client re: Referral acknowledgment letter 0.2 Lockwood, Tamica 7/7/2016 Telephone call with Client re: Explained fdc process and review process 0 Lockwood, Tamica 7/8/2016 Telephone call with Client re: New matter 0 Smith, Michael P. 7/11/2016 Telephone Call with Client re: Completed debt conference call, explained process 0.4 Smith, Michael P. 7/11/2016 FDC prospect packet prepared for Client completion 0.6 Smith, Michael P. 7/11/2016 FDC prospect packet sent via Right Signature for client completion 0.2 Smith, Michael P. 7/12/2016 FDC packet forms returned via Right Signature, reviewed for completion 0.3 Smith, Michael P. 8/12/2016 Federal Court -Accept Letter - New FDC Filing 0.3 Smith, Michael P. 8/26/2016 Received and processed issued summons via USPS 0.1 Smith, Michael P. 8/26/2016 Federal Court-Service of Process- Prepare Service packets USAO, OGC, AG 0.6 Callahan, Michelle 9/12/2016 Telephone call with Client re: Status update 0 Lockwood, Tamica 9/12/2016 Combine and file proof of service via CM / ECF 0.3 Callahan, Michelle 9/20/2016 Telephone call with Client re: Status update and letter from SSA 0 Lockwood, Tamica 9/21/2016 Telephone call with Client re: Status update (trouble remembering) 0 Lockwood, Tamica 9/27/2016 Telephone call with Client re: Status update, review forms SSA sent 0 Smith, Michael P. 11/1/2016 Combine, OCR, and live bookmark Federal Court Transcript (834 pages) 0.9 Lockwood, Tamica 2/17/2017 Telephone call with Client re: Status update 0.1 Lockwood, Tamica 5/19/2017 Telephone call with Client re: Status update 0.1 Lockwood, Tamica 8/2/2017 Telephone call with Client re: Status update 0.1 Smith, Michael P. 9/12/2017 Telephone call with Client re: Status update 0.1 Callahan, Michelle 9/29/2017 Telephone call with Client re: Status update 0.1 Callahan, Michelle 10/3/2017 Federal Court-Remand Referral back to Referral Source 0.3 Graser, Jonnah 10/3/2017 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 10/18/2017 Telephone call with Client re: Reviewed remand of benefits 0.3 Graser, Jonnah 11/1/2017 Telephone call with Client re: Explanation of remand for benefits again 0.3 Graser, Jonnah 12/27/2017 EAJA Preparation 1.5 Persse, Shannon 1/2/2018 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 8.5 8.50 (Client = Ms. Charmaine Pattison) and (Type = Time) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Graser, Jonnah) or (Ti...   

Exhibit D Expenses

Exhibit D Ledger Pattison, Charmaine Date Category Subject 8 / 26 / 2016 Certified mail expense Summons and Complaint packets to Defendants Amount Timekeeper $ 19. 92 Callahan, Michelle $ 19. 92 (Client = Ms. Charmaine Pattison) and (Type = Cost)

Exhibit E Executed Fee Agreement

Exhibit E FEE AGREEMENT - FEDERAL COURT SOCIAL SECURITY APPEAL 1. SCOPE OF REPRESENTATION: I hereby employ the attorneys at Olinsky Law Group ("OLG" or "my federal court attorney") to represent me during a federal court review of my Social Security case. The scope of representation consists of appealing a final decision that I am not disabled, which was made by the Social Security Administration ("SSA"), to a United States District Court. Representation may also include appealing an unfavorable decision from a United States District Court to a United States Court of Appeals; however an appeal to a United States Court of Appeals is at the discretion of my federal court attorney. References to "federal court" in this agreement will include representation before a United States Court of Appeals if my case is appealed to that court. 2. ATTORNEY'S FEE: I understand that if my federal court attorney wins my case in federal court, which means that either my case is remanded to the SSA for further proceedings pursuant to sentence 4 or sentence 6 of § 205(g) of the Social Security Act and/or the federal court enters a directed finding that I am disabled, my federal court attorney will petition for an award of attorney fees for work performed at the federal court(s) pursuant to the Equal Access to Justice Act ("EAJA"). I understand that an EAJA award is paid by the government, does not come from my back benefits, and any award must be approved by the federal court. I hereby assign any court-awarded EAJA attorney fees to my federal court attorney. I agree that any such payment belongs to my federal court attorney. I authorize my federal court attorney to settle the amount of any EAJA fee using his or her professional judgment. I agree to cooperate in any way that I can so that my federal court attorney's full fee is authorized. If my federal court attorney receives an EAJA check made payable to me, I hereby explicitly give authority to my federal attorney to endorse the check with my name and deposit it in my federal court attorney's general office account. I hereby state that my net worth is less than $2,000,000.00. I understand that my federal court attorney may receive the EAJA award as his or her sole compensation for representing me in court. However, I understand that my federal court attorney also has the right to ask the court to award any remaining balance of 25% of my past-due benefits ("406(b) fees") for representing me in federal court. My federal court attorney has this right if the representative, who represents me during remand proceedings, does not collect the full 25% of my past-due benefits during a remand proceeding; and also if (1) my case is remanded pursuant to sentence 6 of § 205(g) of the Social Security Act; or (2) my case is remanded pursuant to sentence 4 of § 205(g) of the Social Security Act and my federal court attorney is unable to collect the authorized EAJA award due to any unpaid federal debt that I may have at the conclusion of the federal case; or if I failed to effectively assign the EAJA award to my federal court attorney; or at the discretion of my federal court attorney. I understand that if the court awards my federal court attorney a fee out of my past-due benefits and also awards an EAJA fee for that same work, my federal court attorney must refund the smaller fee to me. I understand that the SSA will withhold my past-due benefits and will send any approved fee to my federal court attorney. If SSA, through error, fails to withhold my federal court attorney's fee and pays the legal fee to me by mistake (which sometimes happens), I will pay my federal court attorney promptly from the back benefits I receive. If my retroactive payment is released in installments, I agree that I will pay the entire authorized federal court attorney's fee from the first installment. I understand that the total fee could amount to many thousands of dollars. I understand that my federal court attorney may seek the maximum fee this contract allows under the law. My federal court attorney does not promise to minimize either the EAJA or 406(b) fees he or she seeks and/or receives. I understand that if my case loses in federal court, which means that the federal court affirms the decision of the SSA that I am not disabled, my federal court attorney is not entitled to a fee for his or her time spent representing me in federal court. 3. CONSENT TO EXCHANGE OF INFORMATION: I agree that the OLG and any representative(s) that represented me before SSA for the case that is being appealed to federal court may share (1) my contact information, (2) information regarding my case in federal court, including documents filed in court, (3) my SSA exhibit file including all my medical records, and (4) information regarding the status of any remand proceedings. I agree that if a federal court remands my case, the OLG may refer my case to Myler Disability* for possible representation on remand. I agree that the OLG may share (1) my contact information, (2) information regarding my federal court case, including documents filed in court, (3) my SSA exhibit file including all my medical records, and (4) information regarding the status of any remand proceedings, with Myler Disability*. I acknowledge that the United States District Court will issue a written decision on my case, and that decision is a matter of public record which may be published on the internet by case reporting services. 4. TERMINATION OF AGREEMENT AND CONSENT TO PROVIDE UPDATED CONTACT INFORMATION: This agreement terminates at the option of my federal court attorney if we lose at the United States District Court. My federal court attorney will mail me a copy of the court's final decision at the last address I provide my federal court attorney. I agree to inform my federal court attorney each time I change my mailing address and/or telephone number. 5. I HAVE NOT BEEN PROMISED THAT I WILL WIN: My federal court attorney has not promised that I will win my case. I recognize that I may lose my case. I am aware that a federal court may take several years to decide my case. This agreement supersedes and replaces any previous fee agreement I may have signed with any attorney for representation at Federal Court. It does not supersede or replace any fee agreement made for representation before the Social Security Administration. Dated: July 11, 2016 Signature: __________________________________ Claimant Name: Ms. Charmaine Pattison Claimant Social Security Number: Dated: __________ Signature: ___________________________________ Howard D. Olinsky, Esq.

Exhibit F Affirmation and Waiver of Direct Payment of EAJA Fees

Exhibit F UNITED STATES DISTRICT COURT DISTRICT OF ALASKA (ANCHORAGE DIVISION) -------------------------------------------------------------- MS. CHARMAINE PATTISON, AFFIRMATION AND WAIVER OF DIRECT PAYMENT Plaintiff, OF EAJA FEES v. Civil Action No.: _________________ CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------------------------- Ms. Charmaine Pattison, hereby states the following: 1. I am the Plaintiff in the above-captioned matter. 2. That I have retained Olinsky Law Group as my attorney for the above-captioned matter. 3. At the time that this action was begun, my net worth was less than $2,000,000.00. 4. If my case is remanded by the Federal Court, either by stipulation or order, my attorney may file for attorney's fees pursuant to the Equal Access to Justice Act (EAJA). I understand that the EAJA fees are paid by the Federal Government and do not come from any back benefits owed to me by the Social Security Administration. 5. I hereby agree to waive direct payment of the EAJA fees and assign said fees to be paid directly to my attorney. 6. I understand that my attorney may still petition the Administration for legal fees for his or her work before the Administration that will be paid from my back benefits. As the Plaintiff in this case, I hereby declare and affirm under penalty of perjury that the information above is true and correct. Executed on July 11, 2016. __________________________ Ms. Charmaine Pattison Plaintiff

Memorandum in Support

HOWARD D. OLINSKY, Esq. New York No. 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA CHARMAINE PATTISON, Plaintiff, Civil Action No. 3:16-cv-00174-RRB v- NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. ----------------------------------------------------------- Memorandum in Support of Plaintiff's Petition for Counsel Fee Allowance Under Equal Access to Justice Act 1. This is a memorandum in support of a petition for an award of Counsel Fees under the Equal Access to Justice Act, 28 USCS § 2412 "EAJA." 2. An EAJA award is available to a "prevailing party" in a case against the Federal Government, including Social Security cases, in the following instances: (a) When and if the plaintiff actually "prevails"; (b) The Government's position in litigation is "not substantially justified"; (c) Plaintiff is a party whose net assets are worth less than two million dollars; and (d) The case has concluded with a "final order" which is non-appealable, or will not be appealed. 3. Addressing these elements in reverse order, it is clear that the Plaintiff has met the burden necessary to receive EAJA fees. (a) Plaintiff's net worth did not exceed $2,000,000.00 when this action was filed. (b) After service of the summons and complaint and submission of a brief by both parties, Chief District Judge Hon. Ralph R. Beistline signed an Order on September 30, 2017 remanding this matter to the Commissioner for a calculation of benefits pursuant to Sentence Four of 42 U.S.C. § 405(g). (c) Judgment was entered on October 2, 2017. The Judgment has not been appealed. (d) Plaintiff has prevailed because the District Court remanded the case under sentence four of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292 (U.S. 1993) 4. The commissioner was not substantially justified. As the U. S. Supreme Court has held, "the required 'not substantially justified' allegation imposes no proof burden on the fee applicant. It is, as its text conveys, nothing more than an allegation or pleading requirement. The burden of establishing 'that the position of the United States was substantially justified' … must be shouldered by the Government." Scarborough v. Principi, 541 U. S. 401, 414 (2004). While the fee applicant such as Plaintiff is required to "show" three of the four elements—prevailing party status, financial eligibility, and amount sought—Plaintiff need only "to allege" that the position of the government is not substantially justified. Id. WHEREFORE, because all four elements of an allowable application for EAJA fees have been proven or alleged, petitioner humbly prays that the Court issue an order: 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,437.72; and 2. If the Plaintiff has no debt registered with the Department of Treasury subject to offset that the fees be made payable to the attorney; and 3. Awarding expenses in the amount of $19.92. I declare under the penalty of perjury that the foregoing is true and correct. Executed this January 2, 2018 Respectfully submitted, /s/ Howard D. Olinsky Howard D. Olinsky New York Bar # 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Email: fedctgroup@windisability.com To: Summer Stinson, Esq. Special Assistant U.S. Attorney Office of General Counsel Social Security Administration 791 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3704 Fax: (206) 615-2531 E-mail: summer.stinson@ssa.gov

Certificate of Service

HOWARD D. OLINSKY, Esq. New York No. 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedct@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA CHARMAINE PATTISON, Plaintiff, Civil Action No. 3:16-cv-00174-RRB v- NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. ----------------------------------------------------------- CERTIFICATE OF SERVICE I certify that I have electronically moved for EAJA fees with the Clerk of the District Court using the CM/ECF system, which sent notification of such filing to: To: Summer Stinson, Esq. Special Assistant U.S. Attorney Office of General Counsel Social Security Administration 791 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 Telephone: (206) 615-3704 Fax: (206) 615-2531 E-mail: summer.stinson@ssa.gov January 2, 2018 /s/ Howard D. Olinsky Howard D. Olinsky, Esq.

RESPONSE to Motion (Non-Opposition) re [24] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Nancy A. Berryhill.

1 BRYAN SCHRODER 2 United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 SUMMER STINSON Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone: (206) 615-3704 Fax: (206) 615-2531 11 summer.stinson@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 CHARMAINE PATTISON, Case No. 3:16-cv-00174-RRB 16 Plaintiff, 17 vs. DEFENDANT'S RESPONSE TO 18 PLAINTIFF'S MOTION FOR ATTORNEY NANCY A. BERRYHILL, FEES 19 Acting Commissioner of Social Security, 20 Defendant. 21 Defendant, the Commissioner of Social Security, files this response to Plaintiff's request 22 for an award of attorney's fees pursuant to 28 U.S.C. § 2412 as set forth in Plaintiff's Motion 23 (Docket #24). The Commissioner has given substantive consideration to the merits of Plaintiff's 24 Page 1 DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR ATTORNEY FEES - [3:16-cv-00174-RRB] 1 request and found no basis to object. Therefore, Defendant has no objection to this request and 2 will defer to the Court's assessment of the matter. 3 DATED this 12th day of January 2018. 4 Respectfully submitted, 5 Bryan Schroder 6 United States Attorney 7 RICHARD L. POMEROY Assistant United States Attorney 8 MATHEW W. PILE 9 Acting Regional Chief Counsel, Seattle, Region X 10 s/Summer Stinson SUMMER STINSON 11 Special Assistant United States Attorney Office of the General Counsel 12 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 13 Seattle, WA 98104-7075 Telephone: (206) 615-3704 14 Fax: (206) 615-2531 summer.stinson@ssa.gov 15 16 CERTIFICATE OF SERVICE 17 I hereby certify that the foregoing Defendant's Response to Plaintiff's Motion for 18 Attorney Fees was filed with the Clerk of the Court on January 12, 2018, using the CM/ECF 19 system, which will send notification of such filing to the following: Howard D. Olinsky. 20 s/Summer Stinson 21 SUMMER STINSON Special Assistant U.S. Attorney 22 Office of the General Counsel 23 24 Page 2 DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR ATTORNEY FEES - [3:16-cv-00174-RRB]

ORDER granting [24] Motion for Attorney Fees. Signed by Judge Ralph R. Beistline on 1/16/18. (LLR, CHAMBERS STAFF)

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA CHARMAINE PATTISON, Plaintiff, Case No. 3:16-cv-00174-RRB -v- NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. ------------------------------------------------------- Order Awarding Attorney's Fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) Before the Court is the Motion of Plaintiff, Charmaine Pattison, for award of attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Based on the pleadings as well as the position of the defendant commissioner, if any, and recognizing the Plaintiff's waiver of direct payment and assignment of EAJA to her counsel, IT IS HEREBY ORDERED that attorney fees and expenses in the total amount of Six Thousand Four Hundred Fifty-Seven Dollars and Sixty-Four Cents ($6,457.64) pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) are awarded to Plaintiff. Astrue v. Ratliff, 130 S. Ct. 2521 (2010). The Court hereby awards EAJA fees, broken down as follows: 1. Plaintiff is awarded $6,437.72 for paralegal and attorney's fees under 28 U.S.C. § 2412(d); 2. Plaintiff is awarded $19.92 in expenses for Certified Mail for service of Summons and Complaint. If the U.S. Department of the Treasury determines that Plaintiff's EAJA fees and expenses are not subject to offset allowed under the Department of the Treasury's Offset Program (TOPS), then the check for EAJA fees and expenses shall be made payable to Plaintiff's attorney, Howard D. Olinsky. Whether the check is made payable to Plaintiff or to Howard D. Olinsky, the check shall be mailed to Howard D. Olinsky at the following address: 300 South State Street Suite 420 Syracuse, NY 13202 IT IS SO ORDERED this 16th day of January, 2018, at Anchorage, Alaska. /s/ Ralph R. Beistline RALPH R. BEISTLINE Senior United States District Judge

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Description
1
08/11/2016
COMPLAINT against Carolyn W. Colvin, filed by Charmaine Pattison.
2
08/11/2016
Civil Cover Sheet.
3
08/11/2016
MOTION for Leave to Proceed in forma pauperis by Charmaine Pattison.
4
08/11/2016
Unissued summons re Defendant C. Colvin
1
Unissued Summons re Defendant U.S. Attorney's Office
2
Unissued Summons re Defendant U.S. Attorney General
2 Attachments
5
08/16/2016
ORDER DIRECTING SERVICE AND RESPONSE: The Application to Waive Filing Fee, at docket 3, is GRANTED. Service of process to be completed in 90 days of complaint. Signed by Judge Ralph R. Beistline on 8/15/16.
08/16/2016
Summons Issued as to Carolyn W. Colvin, U.S. Attorney, and U.S. Attorney General. (Text entry; no document attached.)
6
09/01/2016
NOTICE of Appearance by Richard L. Pomeroy on behalf of Carolyn W. Colvin
7
09/06/2016
SOCIAL SECURITY SCHEDULING ORDER. Signed by Judge Ralph R. Beistline on 9/6/16.
09/06/2016
Docket Annotation: For the purpose of tracking the briefing as ordered at docket 7, when filing the Opening Brief the attorney shall file the document using the event Motion Miscellaneous Relief and text in the relief being sought. Responsive filings should be filed using the event Response in Opposition to Motion or Response to Motion (Non-Opposition). The reply, if any, shall be filed using the event Reply to Response to Motion. (Text entry; no document attached.)
8
09/12/2016
SUMMONS Returned Executed by Charmaine Pattison. Carolyn W. Colvin served on 8/31/2016, answer due 10/31/2016.
9
09/28/2016
NOTICE of Appearance by Summer Stinson on behalf of Carolyn W. Colvin
10
10/31/2016
ANSWER to 1 Complaint by Carolyn W. Colvin.
11
10/31/2016
Notice of Lodging Administrative Record
1
001 Certification Page
2
002 Court Transcript Index
3
003 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable
4
004 Payment Documents and Decisions
5
005 Jurisdictional Documents and Notices
6
006 Non Disability Related Development
7
007 Disability Related Development
8
008 Medical Records Part 1
9
009 Medical Records Part 2
10
010 Medical Records Part 3
11
011 Medical Records Part 4
11 Attachments
12
11/30/2016
MOTION re 1 Complaint, 11 Notice of Lodging Administrative Record (Social Security), Social Security appeal by Charmaine Pattison.
13
12/27/2016
MOTION for Extension of Time to File Response/Reply as to 12 MOTION re 1 Complaint, 11 Notice of Lodging Administrative Record (Social Security), Social Security appeal Unopposed by Carolyn W. Colvin.
1
Proposed Order
1 Attachment
14
12/27/2016
DECLARATION of Summer Stinson re 13 MOTION for Extension of Time to File Response/Reply as to 12 MOTION re 1 Complaint, 11 Notice of Lodging Administrative Record (Social Security), Social Security appeal Unopposed by Carolyn W. Colvin.
15
12/28/2016
JUDGE BEISTLINE TEXT ORDER: The Unopposed Motion for Extension of Time at Docket 13 is GRANTED. Defendant shall have up to and including February 3, 2017, to file Defendant's Response and Plaintiff shall have up to and including February 17, 2017, to file a Reply brief. (CC: DQA)(Jan, Chambers Staff)
16
02/03/2017
Second MOTION to Amend/Correct 15 Order, Set Motion and R&R Deadlines/Hearings, Terminate Motions, Unopposed by Carolyn W. Colvin.
1
Proposed Order
1 Attachment
17
02/03/2017
DECLARATION of Summer Stinson re 16 Second MOTION to Amend/Correct 15 Order, Set Motion and R&R Deadlines/Hearings, Terminate Motions, Unopposed by Carolyn W. Colvin.
18
02/03/2017
RRB TEXT ORDER: Defendant's Second Unopposed Motion to Amend the Scheduling Order Docket 16 is GRANTED. Defendant's response to plaintiff's Motion at Docket 12 is due 2/17/2017 and plaintiff's reply is due 3/3/2017. (LLR, CHAMBERS STAFF)
02/10/2017
Docket Annotation: Nancy A. Berryhill; Acting Commissioner of Social Security, represented by Richard L. Pomeroy & Summer Stinson substituted for Carolyn W. Colvin (acting Commissioner of Social Security) pursuant to FRCvP 25(d)(1). (Text entry; no document attached.)
19
02/17/2017
RESPONSE in Opposition re 12 MOTION re 1 Complaint, 11 Notice of Lodging Administrative Record (Social Security), Social Security appeal filed by Nancy A. Berryhill.
20
04/20/2017
MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Howard D. Olinsky. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2318867.) by Charmaine Pattison.
1
Certificate of Good Standing
1 Attachment
21
05/09/2017
CLERK'S NOTICE re 20 Application to Appear Pro Hac Vice. The Application to Appear Pro Hac Vice by Howard D. Olinsky, at docket 20, is authorized under D.Ak. LR 83.1(d).
22
09/30/2017
ORDER Remanding for Payment of Benefits (Docket No. [12]). Signed by Judge Ralph R. Beistline on 9/30/17. (LLR, CHAMBERS STAFF)
23
10/02/2017
JUDGMENT: This matter is remanded back to the Social Security Administration for calculation of benefits effective 9/14/13. Signed by Judge Ralph R. Beistline on 10/2/17. (Additional attachment(s) added on 1/17/2018: # (1) Judgment with attorney fees and expenses - redistributed)
24
01/02/2018
First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Charmaine Pattison.
1
Proposed Order
1 Attachment
25
01/02/2018
DECLARATION of Howard D. Olinsky, Esq. re [24] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Charmaine Pattison.
1
Exhibit A All Professional Time
2
Exhibit B Attorney Time
3
Exhibit C Paralegal Time
4
Exhibit D Expenses
5
Exhibit E Executed Fee Agreement
6
Exhibit F Affirmation and Waiver of Direct Payment of EAJA Fees
7
Memorandum in Support
8
Certificate of Service
8 Attachments
26
01/12/2018
RESPONSE to Motion (Non-Opposition) re [24] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Nancy A. Berryhill.
27
01/16/2018
ORDER granting [24] Motion for Attorney Fees. Signed by Judge Ralph R. Beistline on 1/16/18. (LLR, CHAMBERS STAFF)
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