Petty v. Colvin
Court Docket Sheet

District of Alaska

3:2016-cv-00117 (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--2318832.) by Janet Lynn Petty.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA JANET LYNN PETTY, Case No. 3:16-cv-00117-SLG Plaintiff(s), MOTION AND APPLICATION OF vs. NON-ELIGIBLE ATTORNEY FOR NANCY A. BERRYHILL, PERMISSION TO APPEAR AND Acting Commissioner of Social Security, PARTICIPATE IN THE UNITED STATES DISTRICT COURT Defendant(s). FOR THE DISTRICT OF ALASKA To the Honorable Judge of the above-entitled court: I, Howard D. Olinsky, hereby apply for permission to appear and (name) participate as counsel for Janet Lynn Petty, 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-00117-SLG Document 14 Filed 04/20/17 Page 1 of 4 OR I hereby designate, a member of the Bar of this court, (Name) who maintains an office at the place within the district, with whom the court and opposing counsel may readily communicate regarding conduct of this case. DATE: (Signature) Howard D. Olinsky (Printed Name) (Address) (City/State/Zip) (Telephone Number) (e-mail address) Consent of Local Counsel* I hereby consent to the granting of the foregoing application. DATE: (Signature) (Printed Name) (Address) (City, State, Zip) (Telephone) (*Member of the Bar of the United States District Court for the District of Alaska) Case 3:16-cv-00117-SLG Document 14 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-00117-SLG Document 14 Filed 04/20/17 Page 3 of 4 Attachment to Pro Hac Vice Application for Howard D. Olinsky: Court Date of Admission In Good Standing? New York State 02/07/1986 YES State of Georgia 01/23/2014 YES United States Supreme Court 04/01/1991 YES Court of Appeals for 2nd Circuit 11/01/2002 YES Court of Appeals for 6th Circuit 10/15/2013 YES Court of Appeals for Federal Circuit 06/12/2007 YES U.S. Court of Veteran’s Appeals, Washington D.C. 06/12/2007 YES U.S.D.C., NDNY 04/22/1986 YES U.S.D.C., WDNY 01/29/2001 YES U.S.D.C., EDNY 03/21/2003 YES U.S.D.C., SDNY 03/25/2003 YES U.S.D.C., DCT 12/10/2010 YES U.S.D.C., NDFL 10/31/2011 YES U.S.D.C., EDMI 02/25/2013 YES U.S.D.C., WDMI 12/26/2013 YES U.S.D.C., EDTX 12/20/2013 YES U.S.D.C., EDAR 01/03/2014 YES U.S.D.C., WDAR 01/03/2014 YES U.S.D.C., MDGA 01/28/2014 YES U.S.D.C., NDIL 01/30/2014 YES U.S.D.C., NDGA 02/10/2014 YES U.S.D.C., EDWI 04/14/2014 YES U.S.D.C., NDTX 05/15/2014 YES U.S.D.C., DCO 06/18/2014 YES U.S.D.C., SDGA 06/02/2014 YES U.S.D.C., WDWI 07/03/2014 YES U.S.D.C., WDTX 09/15/2014 YES U.S.D.C., NDIN 08/04/2015 YES U.S.D.C., CDIL 09/24/2015 YES U.S.D.C., SDIL 09/25/2015 YES U.S.D.C., EDMO 04/13/2017 YES Case 3:16-cv-00117-SLG Document 14 Filed 04/20/17 Page 4 of 4

Certificate of Good Standing

AO 136 (Rev. 10/13) Certificate of Good Standing UNITED STATES DISTRICT COURT for the Northern District of New York CERTIFICATE OF GOOD STANDING I, Lawrence K. Baerman, Clerk of this Court, certify that HOWARD D. OLINSKY, Bar # 102297, was duly admitted to practice in this Court on April 22, 1986, and is in good standing as a member of the Bar of this Court. Dated at Syracuse, New York on March 27, 2017 (Location) (Date) Lawrence K. Baerman CLERK DEPUTY CLERK Case 3:16-cv-00117-SLG Document 14-1 Filed 04/20/17 Page 1 of 1

DECISION AND ORDER: The Commissioner's final decision is VACATED, and the case is REMANDED to the SSA for further proceedings (see order for full details). Signed by Judge Sharon L. Gleason on 06/21/2017. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA JANET LYNN PETTY, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Case No. 3:16-cv-00117-SLG Defendant. DECISION AND ORDER Janet Lynn Petty filed an application for Supplemental Security Income ("SSI") on December 26, 2012 under Title XVI of the Social Security Act ("the Act"), alleging disability beginning January 1, 2009. 1 Ms. Petty has exhausted her administrative remedies and seeks relief from this Court. She argues that the determination by the Commissioner of the Social Security Administration ("Commissioner") that she is not disabled, within the meaning of the Act, is the product of legal error and is not supported by substantial evidence. Ms. Petty seeks a remand for further administrative proceedings, including a de novo hearing and decision. 2 The Commissioner filed an answer to the complaint and a brief in opposition to Ms. Petty’s opening brief, 3 to which Ms. Petty filed a reply. 4 Oral argument was not requested 1 A.R. 11. 2 Docket 10 (Petty’s Opening Brief) at 24. 3 Docket 8 (Answer); Docket 11 (Opp’n). 4 Docket 12 (Reply). Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 1 of 30 and was not necessary to the Court’s decision. For the reasons set forth below, Ms. Petty’s request for relief at Docket 10 is GRANTED IN PART, the Commissioner’s final decision is VACATED, and the case is REMANDED to the Commissioner for further proceedings consistent with this decision. I. 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 is based upon legal error. 5 "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." 6 Such evidence must be "more than a mere scintilla," but may be "less than a preponderance."7 In reviewing the agency’s determination, the Court considers the evidence in its entirety, weighing both the evidence that supports and that which detracts from the ALJ’s conclusion. 8 If the evidence is susceptible to more than one rational interpretation, the ALJ’s conclusion must be upheld. 9 5 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)). 6 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 7 Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975) (per curiam). 8 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 9 Gallant v. Heckler, 753 F.2d 1450, 1452–53 (9th Cir. 1984). Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 2 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 2 of 30 II. DETERMINING DISABILITY The Act provides for SSI to individuals who are sixty-five or older, blind, or disabled, but who do not have insured status under the Act. 10 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. 11 The Act further provides: An individual shall be determined to be under a disability only if h[er] physical or mental impairments are of such severity that [s]he is not only unable to do h[er] previous work but cannot, considering h[er] 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 h[er], or whether [s]he would be hired if [s]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. 12 The Commissioner has established a five-step process for determining disability within the meaning of the Act. 13 A claimant bears the burden of proof at steps one through four in order to make a prima facie showing of disability. 14 If a claimant establishes a prima facie case, the burden of proof then shifts to the agency at step five. The 10 42 U.S.C. § 423(a) (2014). 11 42 U.S.C. § 423(d)(1)(A). 12 42 U.S.C. § 423(d)(2)(A). 13 20 C.F.R. § 404.1520(a)(4) (2014). 14 Treichler v. Comm’r 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). Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 3 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 3 of 30 Commissioner can meet this burden in two ways: "(a) by the testimony of a vocational expert, or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. Pt. 404, Subpt. P, App. 2." 15 The steps, and the ALJ’s findings in this case, are as follows: Step 1. Determine whether the claimant is involved in "substantial gainful activity." The ALJ concluded that Ms. Petty has not engaged in substantial gainful activity since December 26, 2012, the application date. 16 Step 2. Determine whether the claimant has a medically severe impairment or combination of impairments. A severe impairment significantly limits a claimant’s physical or mental ability to do basic work activities, and does not consider age, education, or work experience. The severe impairment or combination of impairments must satisfy the twelve-month duration requirement. The ALJ determined that Ms. Petty has the following severe impairments: keratitis; polyneuropathy of the lower extremities; mild carpal tunnel syndrome on the left; depressive disorder; adult attention deficit disorder; post-traumatic stress disorder; and borderline personality disorder. 17 Step 3. Determine whether the impairment is the equivalent of any of the listed impairments found in 20 C.F.R. Pt. 404, Subpt. P, App. 1 that are so severe as to preclude substantial gainful activity. If the impairment is the equivalent of any of the listed impairments, and meets the duration requirement, the claimant is conclusively presumed to be disabled. If not, the evaluation goes on to the fourth step. The ALJ determined that 15 Treichler, 775 F.3d at 1096 n.1, 1099. 16 A.R. 13. 17 A.R. 13. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 4 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 4 of 30 Ms. Petty does not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. 18 Before proceeding to step four, a claimant’s residual functional capacity ("RFC") is assessed. 19 Once determined, the RFC is used at both step four and step five. An RFC assessment is a determination of what a claimant is able to do despite her physical, mental, or other limitations. 20 The ALJ concluded that Ms. Petty has the RFC to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant is limited to occasional climbing of ladders, ropes, and scaffolds; occasional crawling; frequent left handling and fingering; must avoid concentrated exposure to extreme cold, to irritants such as fumes, odors, dust, gases, and poorly ventilated areas, operational control of moving machinery, unprotected heights, and hazardous machinery; and work is limited to simple, routine, and repetitive tasks, with only few decision making situations required, and superficial interaction with coworkers. 21 Step 4. Determine whether the impairment prevents the claimant from performing work performed in the past. At this point, the analysis considers the claimant’s RFC and past relevant work. If the claimant can still do her past relevant work, the claimant is 18 A.R. 15–17. 19 20 C.F.R. § 404.1520(a)(4) (2014). 20 20 C.F.R. § 404.1545(a). 21 A.R. 17. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 5 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 5 of 30 deemed not to be disabled. Otherwise, the evaluation process moves to the fifth and final step. The ALJ found that Ms. Petty has no past relevant work. 22 Step 5. Determine whether the claimant is able to perform other work in the national economy in view of her age, education, and work experience, and in light of the RFC. If so, the claimant is not disabled. If not, the claimant is considered disabled. Based on the testimony of a vocational expert ("VE"), the ALJ determined that there are jobs that exist in significant numbers in the national economy that Ms. Petty can perform, including: laundry worker, mailroom sorter, and routing clerk/light packager. 23 III. PROCEDURAL AND FACTUAL BACKGROUND On December 26, 2012, Ms. Petty filed the current application for Supplemental Security Income payments, which was initially denied. 24 Ms. Petty then requested a hearing, which was first held on September 18, 2014. But the ALJ continued that hearing to give Ms. Petty, who was then unrepresented, an opportunity to ensure that all relevant medical records were in the administrative record. 25 The second administrative hearing was held on March 13, 2015. There, Ms. Petty appeared with counsel. 26 After the hearing, on April 27, 2015, the ALJ issued a decision, finding that Ms. Petty "has not been under a disability, as defined in the Social Security 22 A.R. 27. 23 A.R. 28. 24 A.R. 11. 25 A.R. 75–76. 26 A.R. 38–62. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 6 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 6 of 30 Act, since December 26, 2012, the date the application was filed."27 Ms. Petty appealed the ALJ’s decision to the Appeals Council, which denied Ms. Petty’s request on April 6, 2016. The ALJ’s decision is therefore the final agency decision. Ms. Petty timely sought judicial review from this Court of that decision; she is represented by counsel in this appeal. 28 IV. DISCUSSION On appeal, Ms. Petty first argues that the ALJ’s physical RFC determination is erroneous in three respects: (1) the ALJ failed "to find fibromyalgia was a medically determinable impartment"; (2) the ALJ "erred in affording no weight to Dr. [Wade] Erickson’s opinion"; and (3) the ALJ did not "properly assess the evidence of possible limitations related to Petty’s dry eye impairment." Second, Ms. Petty argues that the "ALJ erred as a matter of law in rejecting [Advance Nurse Practitioner Jean] Boga’s mental functioning opinion."29 1. Physical RFC Determination Ms. Petty argues that the ALJ’s physical RFC determination is the product of legal error and is not supported by substantial evidence in the record. 30 A court should affirm an ALJ’s determination of a claimant’s RFC "if the ALJ applied the proper legal standard 27 A.R. 29. 28 See Docket 1. 29 Docket 10 at 13–20. 30 Docket 10 at 12. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 7 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 7 of 30 and [her] decision is supported by substantial evidence." 31 It is "proper for an ALJ to limit a hypothetical to those impairments that are supported by substantial evidence in the record." 32 Fibromyalgia Ms. Petty argues that the physical RFC determination is erroneous because the ALJ did not find fibromyalgia to be a medically determinable impairment, and thus did not "adequately considered the effects of this impairment when assessing the physical RFC and weighing the opinion evidence." 33 The ALJ found that the record did not establish fibromyalgia as a "medically determinable impairment" because "other diagnoses ha[d] not been ruled out and [] the claimant ha[d] not been evaluated by a rheumatologist" at the time of the ALJ’s determination. 34 Moreover, the ALJ found that Ms. Petty’s treatment records "do not reveal an ongoing diagnosis of fibromyalgia syndrome or related treatment."35 Accordingly, the ALJ found that fibromyalgia had not been established in accordance with SSR 12-2p. 36 31 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 598 (9th Cir. 1999)). 32 Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001) (citing Magallanes v. Bowen, 881 F.2d 747, 756–57 (9th Cir. 1989)). 33 Docket 10 at 16. 34 A.R. 14. 35 A.R. 14. 36 SSR 12-2p, 2012 WL 3104869 (July 25, 2012). SSRs are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 8 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 8 of 30 SSR 12-2p requires a physician’s diagnosis of fibromyalgia that is based on a physical exam and a review of the person’s medical history. The physician’s treatment notes must be consistent with the diagnosis of fibromyalgia. Further, the physician must provide evidence that satisfies one of two alternative criteria. The first criteria, the 1990 ACR criteria, requires: (1) a history of widespread pain in all quadrants of the body that has persisted for at least 3 months, even if it fluctuates; (2) pain in at least 11 of 18 tender points throughout the body; and (3) other diseases that could cause the symptoms have been ruled out through objective tests. 37 The second criteria, the 2010 ACR Preliminary Diagnostic Criteria, requires: (1) a history of widespread pain; (2) repeated manifestation of six of more fibromyalgia symptoms signs, or co-occurring conditions; 38 and (3) other diseases that could cause the symptoms or signs have been ruled out through objective tests. 39 Ms. Petty asserts that Dr. Ryan Ragle "noted multiple times that he suspected Petty had fibromyalgia, or neuropathy with a component of fibromyalgia." 40 On March 14, 2014, Dr. Ryan Ragle noted that Ms. Petty had tenderness in her hands, shoulders, knees, upper back, neck, lower back, chest, forearms, and greater trochanters. He 37 SSR 12-2p (testing that rules out other disorders may include complete blood counts, erythrocyte sedimentation rate, anti-nuclear antibody, thyroid function, and rheumatoid factor). 38 Especially relevant are manifestations of fatigue, cognitive or memory problems, waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome. See SSR 12-2p. 39 SSR 12-2p. 40 Docket 10 at 14 (citing A.R. 640, A.R. 646–47). Ms. Petty refers to Dr. Ryan Ragle as a rheumatologist in her filings, and Dr. Erickson noted that Ms. Petty "went to rheumatologist." A.R. 600. However, nothing in the record confirms that Dr. Ragle is a rheumatologist. But see Orthopedic Physicians of Alaska (available at http://www.opalaska.com/bios/dr-ragle) (describing Dr. Ragle’s education and listing a rheumatology fellowship). Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 9 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 9 of 30 opined that her "soft tissue tenderness was in a pattern in character consistent with fibromyalgia." 41 But on that date, he could "not rule out neuropathy." 42 Dr. Ryan Ragle "recommended EMG/NCS studies to further help determine whether she has clear evidence of neuropathy." 43 Dr. Ryan Ragle also prescribed Gabapentin for Ms. Petty’s diffuse pain. Dr. Ryan Ragle referred Ms. Petty to Jeffrey L. Sponsler, MD, for EMG and nerve conductions. Dr. Sponsler saw Ms. Petty in April 2014. He conducted electromyography tests, which revealed severe axon loss neuropathy of the lower extremities. He assessed that Ms. Petty had a diagnosis of peripheral neuropathy and polyneuropathy, but added that B12 deficiency is a common cause of these conditions. He recommended that Ms. Petty be treated with B12 supplements. 44 On July 17, 2014, Dr. Ryan Ragle again saw Ms. Petty; she reported then that her symptoms had improved after taking Gabapentin. 45 At this visit, Dr. Ryan Ragle stated that he had received partial results from the neurologist, but needed the remainder of the records from the neurology evaluation. He again diagnosed Ms. Petty with "diffuse pain suspect fibromyalgia," but added he could not "rule out neuropathy." 46 41 A.R. 646. The Court refers to Dr. Ryan Ragle by his full name to distinguish him from Dr. William Ragle, a consultative physician. 42 A.R. 647. 43 A.R. 646. 44 A.R. 825–29. 45 A.R. 640. 46 A.R. 640. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 10 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 10 of 30 On December 1, 2014, Dr. William Ragle examined Ms. Petty as part of the disability determination process. Dr. William Ragle noted that Ms. Petty complained of "years of aches and pains affecting most joints [including] hands, wrists, elbows, knees, ankles and feet."47 Dr. William Ragle conducted a musculoskeletal exam, based on which he determined that there was no apparent synovitis of Ms. Petty’s small joints, such as in her hands and feet, no laxity or subluxation of any joint, and no tenderness in any major joints. But he noted tenderness over the posterior shoulders. 48 In his assessment of Ms. Petty’s conditions he identified fibromyalgia but added that "her diffuse musculoskeletal symptoms which in the absence of other apparent etiologies is suggestive of fibromyalgia." 49 The assessments from Dr. Ryan Ragle and Dr. William Ragle do not constitute a conclusive diagnosis of fibromyalgia. Both statements expressly leave open the possibility of other causes for Ms. Petty’s pain. 50 And even if these assessments were sufficiently conclusive, both the 1990 and 2010 criteria require the physician to rule out other causes of Ms. Petty’s pain through objective tests. Here, each assessment suggests that this step had not yet been completed by the time the ALJ reviewed Ms. 47 A.R. 757. 48 A.R. 759 ("Tender diffusely over the posterior shoulders to gentle palpation."). 49 A.R. 759 (emphasis added). 50 Dr. Sponsler’s EMG testing suggests that Ms. Petty’s symptoms may be caused by neuropathy. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 11 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 11 of 30 Petty’s medical records. Accordingly, the Court finds that the ALJ did not err in finding that fibromyalgia was not a medically determinable impairment. 51 Dr. Erickson’s Medical Opinion Finally, Ms. Petty asserts that "[t]he ALJ erred in affording no weight to Dr. Erickson’s opinion and in instead relying on her own lay opinion."52 "Regardless of its source, [the SSA] will evaluate every medical opinion [it] receive[s]." 53 Medical opinions come from three types of sources: those who treat the claimant; those who examine but do not treat the claimant; and those who neither examine nor treat the claimant. "As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant."54 Indeed, if the treating source’s opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence" in the record, that opinion will be given controlling weight. 55 51 One of the ALJ’s reasons for finding that fibromyalgia had not been established was that Ms. Petty had not been evaluated by a rheumatologist. A.R. 14. The Court notes that a rheumatologic specialist, although helpful, is not necessary for a diagnosis of fibromyalgia. See Kline v. Colvin, 140 F. Supp. 3d 912, 919 (D. Ariz. 2015) ("[T]he fact that Dr. Kaldenbaugh is not a rheumatologist is [] irrelevant."). And there is some evidence in the record that Ms. Petty had been seen by a rheumatologist. See A.R. 600, 759, and n.40, supra. However, given the lack of evidence of a fibromyalgia diagnosis, the ALJ’s reliance on this factor is harmless error. 52 Docket 10 at 16. 53 20 C.F.R. § 416.927(c). Section 416.927 applies to SSI claims filed before March 27, 2017. Ms. Petty initially filed her application for disability in December 2012; accordingly, this Court will apply § 416.927 to her claim. 54 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). 55 20 C.F.R. § 416.927(c)(2). Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 12 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 12 of 30 "If a treating physician's opinion is not given'controlling weight’ because it is not'well-supported’ or because it is inconsistent with other substantial evidence in the record, the [SSA] considers specified factors in determining the weight it will be given." 56 The factors the ALJ should consider include: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including whether the opinion is within the source’s area of specialization; (3) the supportability of the opinion through relevant evidence, such as medical signs and laboratory results; and (4) other relevant factors, such as the medical source’s degree of familiarity with the SSA’s disability process and with other information in the claimant’s record. 57 Applying these factors means that "[i]n many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight." 58 However, doctors do not always agree on all matters, and the ALJ is responsible for determining credibility and resolving conflicts and ambiguities in medical testimony. 59 Therefore, in some cases, a treating source’s opinion 56 Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); see also Garrison v. Colvin, 759 F.3d 995, 1012 n.11, 1013 (9th Cir. 2014) (finding the ALJ by erred because "she failed to afford the deference to which [Dr.] Wang was presumptively entitled under both Social Security regulations and [Ninth Circuit] precedent"); 57 20 C.F.R. § 416.927(c)(2). 58 Orn, 495 F.3d at 631 (citing SSR 96-2p, 1996 WL 374188 (July 2, 1996)). SSR 96-2p was rescinded by Federal Register Notice Vol. 82, No. 57, page 15263 effective March 27, 2017. But because Ms. Petty submitted her application for disability prior to the ruling being rescinded, the Court will apply the ruling to Ms. Petty’s claim. 59 Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001) (citing Reddick v. Chater 157 F.3d 715, 722 (9th Cir. 1998)). Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 13 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 13 of 30 may not be entitled to the greatest weight. But in the Ninth Circuit, "an ALJ may reject a treating doctor’s medical opinion," if no other doctor has contradicted it, "only for'clear and convincing’ reasons supported by substantial evidence." 60 And when a treating source's opinion is contradicted by the opinion of another medical source, a treating source’s opinion is generally "still entitled to deference."61 If a treating source’s opinion is contradicted, an ALJ may not reject that treating source’s opinion without providing "specific and legitimate reasons supported by substantial evidence in the record." 62 This can be done by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings." 63 When an examining source relies on the same clinical findings as a treating source, but differs only in his or her conclusions, the conclusions of the examining source are not considered "substantial evidence" sufficient to support rejecting the treating source’s opinion. 64 And when rejecting a treating source’s opinions, the ALJ must do more than just offer her own conclusions; instead, "[s]he must set forth h[er] own interpretations and explain why they, rather than the doctors’, are correct." 65 An ALJ may 60 Id. at 517 (citing Reddick, 157 F.3d at 725). 61 Orn, 495 F.3d at 633 (citing SSR 96-2p). 62 Id. at 633 (quoting Reddick, 157 F.3d at 725) (internal quotation marks omitted). 63 Reddick, 157 F.3d at 725 (citing Magallanes v. Bowen, 881 F.2d 747, 751(9th Cir. 1989)). 64 Orn, 495 F.3d at 632. 65 Reddick, 157 F.3d at 725 (citing Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988)). Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 14 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 14 of 30 discredit a treating source’s opinions that are "conclusory, brief, and unsupported by the record as a whole or by objective medical findings." 66 The SSA also permits a claimant to provide evidence from non-physician sources as to the severity of an impairment and how it affects a claimant’s ability to work, including evidence from a nurse practitioner, physician assistant (PA), chiropractor, or therapist, including a physical therapist. 67 Here, Dr. Erikson, a medical doctor, was Ms. Petty’s primary treating physician for 18 months. From April 9, 2013 until December 16, 2014, Ms. Petty saw Dr. Erickson approximately 20 times (sometimes as frequently as once a week). During a visit on April 9, 2013, which from the record appears to be Ms. Petty’s first visit with Dr. Erickson, he assessed Ms. Petty for burning tongue, anxiety disorder, sleep apnea, hypothyroidism, GERD, restless leg syndrome, dry eye syndrome, menopausal and postmenopausal disorder, hyperlipidemia, and axillary lump. 68 However, Dr. Erickson noted that Ms. Petty’s anxiety disorder was "well controlled" and that her GERD symptoms were improving due to her weight loss and diet modifications. Mr. Petty returned to Dr. Erickson on April 26, 2013. 69 At that visit, Dr. Erickson listed the following assessments: burning tongue, dry eye syndrome, axillary lump, 66 Burrell, 775 F.3d at 1140 (emphasis omitted) (quoting Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)). 67 20 C.F.R. § 416.913(d) (2014). 68 A.R. 580. Dr. Erickson refers to Ms. Petty’s condition as both burning mouth and burning tongue. There is no indication that these are different conditions. 69 A.R. 578. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 15 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 15 of 30 syncope, and GERD. Ms. Petty reported that she went to the ER for the syncope (rapid heartbeat), which Dr. Erickson indicated was likely an anti-cholesterol effect. On May 21, 2013, Dr. Erickson noted that Ms. Petty’s dry eye syndrome was resolving and that her anxiety disorder was under control; he was encouraging "exercise, fresh air, sleep, [and] stress relief." 70 Dr. Erickson continued to assess Ms. Petty for elevated leukocytes. On June 6, 2013, Ms. Petty reported that her burning mouth symptoms were getting worse and that she had had three migraines in the past two weeks. She also reported muscle spasms in her back and legs and that her hands and feet were numb. The only assessments the doctor listed on that day were for muscle spasms and migraines. 71 On July 2, 2013, Ms. Petty reported that her dry eye and burning mouth "are going crazy." 72 Dr. Erickson attributed this to Ms. Petty’s abrupt cessation of steroids as a result of the rapid heartbeat incident. On August 6, 2013, Ms. Petty reported she was "having flare of joints" and was all swollen and tender. On examination, Ms. Petty’s neck was supple and extremities revealed normal range of motion, no clubbing, no edema, and no redness, swelling, or deformity. 73 On January 6, 2014, Ms. Petty saw Dr. Erickson for a checkup. She was 70 A.R. 622. 71 A.R. 619. 72 A.R. 617. 73 A.R. 614. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 16 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 16 of 30 diagnosed with sinusitis. She also reported "tingling in legs," which worsens as the day progressed, but said that her leg cramps have dissipated. 74 At this visit, Dr. Erickson noted Ms. Petty had poor control over her GERD and that she continued to lose weight. Dr. Erickson wrote that he would consider a GI endoscopy if this condition did not improve. At another follow-up on March 25, 2014, Ms. Petty reported that she had gone to a rheumatologist and had been started on Neurontin. 75 Dr. Erickson assessed her for burning tongue and flank pain at that visit. He noted Ms. Petty had normal range of motion, with no clubbing or edema, at her extremities. Renal imaging on that date was negative. On April 2, 2014, Ms. Petty returned for another follow-up visit and reported continuing throat pain. Dr. Erickson noted that Ms. Petty was "asking for pain meds for all over type pain."76 He assessed her for sinusitis disorder and muscle pain, and started her on Norco tablets, a pain medication used to treat moderate to moderately severe pain. On April 30, 2014, Ms. Petty told Dr. Erickson that Dr. Sponsler had told her she is diabetic, vitamin B12 deficient, and has mild carpal tunnel. 77 Dr. Erickson noted Ms. Petty’s blood sugar was below 150. Dr. Erickson assessed Ms. Petty for diabetes type II and vitamin B12 deficiency, along with burning tongue syndrome, neuropathy, and migraine. 74 A.R. 605. 75 A.R. 600. 76 A.R. 597. 77 A.R. 595. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 17 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 17 of 30 On October 27, 2014, Ms. Petty reported she had been to the ER after she had three pseudo-seizures in one day; however, the evaluation in the ER was negative. 78 She reported her burning tongue syndrome was stable. Dr. Erickson recommended counseling to help address the pseudo-seizures and relieve stress. Ms. Petty’s glucose on that day was normal at 93, and no assessment for diabetes is included. The medical history section of Ms. Petty’s chart maintained by Dr. Erickson’s office does not contain any reference to diabetes. 79 On December 16, 2014, Ms. Petty’s last visit with Dr. Erickson included in the record, Ms. Petty reported that she was experiencing increased stress, with deaths in her family. 80 Dr. Erickson assessed her for depression and noted that he "agrees with her mental health provider in that her mood changes are temporary and will continue to improve with grief counseling and conservative care." 81 Dr. Erickson has twice opined on Ms. Petty’s ability to work. First, in a brief, one-page letter dated August 7, 2014, Dr. Erickson wrote, "Due to her medical problems and pain [Ms. Petty] has difficulty performing the normal activities of daily living and it is impossible for her to maintain employment." 82 Dr. Erickson listed Ms. Petty’s medical problems at the time as follows: "diabetes mellitus II, anxiety disorder, GERD, joint pains 78 A.R. 899. 79 A.R. 899–900. 80 A.R. 902. 81 A.R. 903. 82 A.R. 700. The letter is actually signed by a person who identified herself as a certified medical assistant for Dr. Erickson. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 18 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 18 of 30 and an autoimmune disorder symptomatic for dry eyes and burning tongue." On January 6, 2015, Dr. Erickson completed a medical source statement on a form provided by Ms. Petty’s lawyers. There, he identified Ms. Petty’s medical impairments as "burning mouth, dry eye, PTSD, and anxiety." 83 Dr. Erickson opined that Ms. Petty could not be reasonably expected to be reliable in attending an 8-hour day, 40-hour week, without missing more than two days per month. But he found that Ms. Petty had no limitations with sitting, standing, walking, stooping, or climbing. Dr. Erickson also stated that Ms. Petty would be off task an average of 30% of the workday, and that her conditions cause a lapse in memory or concentration. 84 Dr. Erickson also opined that Ms. Petty needs to avoid dust and fumes. However, Dr. Erickson also noted that Ms. Petty had the ability to "[s]ustain an ordinary routine," "[w]ork in coordination with or proximity to others without being distracted," and "[m]aintain[] attention and concentration for extended periods of time," with only her ability to "[p]erform activities within a schedule and maintain regular attendance" occasionally precluded. 85 Dr. Erickson did not identify any other barriers to Ms. Petty’s ability to work. 86 83 A.R. 906. 84 A.R. 907. 85 A.R. 907. 86 Dr. Erickson also opined that Ms. Petty could carry one to ten pounds continuously, and ten to 25 pounds occasionally. He stated that she could frequently bend, push and pull, and use hands for gross manipulation, as well as use hands for fine manipulation continuously. She does not need to elevate her legs, nor does she need to lie down during the workday due to pain, fatigue, or other impairments. Finally, Dr. Erickson opined that none of Ms. Petty’s social interactions would be affected by her conditions. Dr. Erickson opined that she would be able to interact with the public, asks questions or request assistance, accept instructions and respond appropriately, get along with co-workers, and maintain socially appropriate behavior. A.R. 906–07. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 19 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 19 of 30 The ALJ found Dr. Erickson’s August 2014 letter "unsupported" and gave it "no weight." The ALJ rejected Dr. Erickson’s 2014 opinion because "the medical evidence of record does not reveal a firm diagnosis of diabetes mellitus... [or] evidence of GERD or autoimmune disorder." Moreover, "Dr. Erickson’s treatment notes reveal no treatment associated with anxiety disorder." Finally, the ALJ rejected Dr. Erickson’s 2014 opinion because he "provided no explanation as to what, if any, objective findings he relied upon in rendering his opinion." 87 As for Dr. Erickson’s medical source statement from January 2015, the ALJ found "this opinion no more supported" than Dr. Erickson’s August 2014 letter; accordingly, the ALJ "reject[ed] it for similar reasons." 88 Ms. Petty argues that the ALJ did not assess Dr. Erickson’s opinion according to the legal criteria she is to apply. Specifically, Ms. Petty asserts that the ALJ was required to consider the factors set out in 20 C.F.R. § 416.927(c), but here the ALJ relied on only one of the listed factors, supportability, when deciding to accord Dr. Erickson’s opinion no weight. Moreover, Ms. Petty asserts, "even if Dr. Erickson did not include written explanation[s] on his opinion form, that is not sufficient reason to reject his opinion, as his treatment notes provide that explanation."89 Ms. Petty also argues that "the ALJ completely failed to consider whether Dr. Erickson’s opinion was consistent with the evidence as a whole." And Ms. Petty asserts that the absence of citations to 87 A.R. 25. 88 A.R. 25. 89 Docket 10 at 17. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 20 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 20 of 30 "contradictory functional opinion [] rais[es] the question of whether the ALJ’s RFC is based on the evidence or her own lay opinion." 90 Dr. Erickson, having seen Ms. Petty approximately 20 times, constitutes a treating physician. A treating source’s opinion warrants controlling weight when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence" in the record. 91 Here, the ALJ found Dr. Erickson’s August 2014 letter and January 2015 medical source questionnaire unsupported by medically acceptable evidence. For example, the ALJ found "the medical evidence of record does not reveal a firm diagnosis of diabetes mellitus... [or] evidence of GERD or autoimmune disorder." The Court observes that only the August 2014 letter, and not the January 2015 questionnaire, identified diabetes as an impairment. But the record contains some evidence of diabetes. On April 28, 2014, Dr. Jeffrey Sponsler evaluated Ms. Petty and found that she "meets the criteria for diabetes" and noted Ms. Petty’s primary care provider should "address this with diet exercise and medications." In his report, Dr. Sponsler explains that Ms. Petty’s lab reports "meet the criteria for diabetes" because her fasting blood glucose was greater than 110 mg/dL. 92 This finding is further supported by lab results assessed by Dr. Ryan Ragle on March 14, 2014, which state "CMP within 90 Docket 10 at 18–19 (citing Winkowitsch-Smith v. Barnhart, 113 F. App’x 765, 767 (9th Cir. 2004)). 91 20 C.F.R. § 416.927(c). 92 A.R. 826, 829. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 21 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 21 of 30 normal limits, except for glucose of 203."93 Soon after Dr. Sponsler’s report, Dr. Erickson assessed Ms. Petty for diabetes type II on April 30, 2014 and started a treatment plan of diet modification and education. 94 But later blood work showed normal glucose levels, and Dr. Erickson did not include a diagnosis for diabetes in his 2015 questionnaire, nor did Ms. Petty testify to diabetes at either administrative hearing. 95 As for GERD, Dr. Erickson does not identify GERD as an impairment in his 2015 questionnaire. And there is no objective, medical acceptable evidence in the record that supports a diagnosis for GERD. GERD has not been confirmed by any other health care provider. Moreover, apart from noting her weight loss, Ms. Petty did not testify to GERD symptoms at either of the administrative hearings. Nor is there any indication in the record as to how GERD would affect Ms. Petty’s ability to work. And, as the ALJ notes, the record reveals that Ms. Petty’s GERD symptoms have been considerably milder than reported, as she has experienced only a gradual loss of weight of at most 35 pounds from 2011 through 2014. 96 As for autoimmune disease, Dr. List stated in a letter dated February 21, 2013, that he believed Ms. Petty "likely has an autoimmune condition." 97 But two months later, Dr. Ryan Ragle reported "[t]here are no objective physical exam findings or laboratory 93 A.R. 645. 94 A.R. 595. 95 See A.R. 900; A.R. 906–07; A.R. 38–79. 96 A.R. 23. 97 A.R. 473. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 22 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 22 of 30 findings that would allow for a specific diagnosis of an autoimmune or inflammatory disease." 98 And Dr. Erickson did not identify autoimmune disease as one of Ms. Petty’s impairments in his January 2015 questionnaire. That questionnaire identified only the following impairments as affecting Ms. Petty’s ability to work: "burning mouth, dry eye, PTSD, and anxiety." 99 The ALJ also rejected Dr. Erickson’s medical opinion because his treatment notes reveal no treatment associated with anxiety disorder. 100 But the record reveals that Dr. Erickson did provide limited treatment of Ms. Petty’s anxiety. On April 9, 2013, Dr. Erickson treated Ms. Petty by continuing her on bupropion and quetiapine, anti-anxiety medications. And on July 2, 2013, Dr. Erickson decided to take Ms. Petty off Seroquel— a medication he had prescribed to treat Ms. Petty’s anxiety. 101 Given the limited support for Dr. Erickson’s opinions and the internal inconsistencies between them, 102 the Court finds the record sufficiently establishes that Dr. Erickson’s opinion is not entitled to controlling weight. However, even if a physician’s opinion is not accorded controlling weight, the ALJ must apply the specific factors set out in 20 C.F.R. § 416.927(c) when determining the weight to accord Dr. Erickson’s opinions, as generally a "treating physician’s opinion is'still entitled to deference.’" Pursuant to § 98 A.R. 646 (April 26, 2013). 99 A.R. 906. 100 A.R. 25. 101 A.R. 617. 102 Dr. Erickson’s August 2014 letter identifies several impairments that Dr. Erickson’s 2015 questionnaire did not include. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 23 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 23 of 30 416.927(c), the ALJ must consider: (1) the length of the treatment relationship between Ms. Petty and Dr. Erickson and the frequency of examinations; (2) the nature and extent of the treatment relationship, including whether Dr. Erickson’s opinions were within his area of specialization; (3) the supportability of Dr. Erickson’s opinion through relevant evidence; and (4) other relevant factors, such as Dr. Erickson’s degree of familiarity with the SSA’s disability process and with other information in Ms. Petty’s record. 103 However, from the Court’s review of the ALJ’s decision, the ALJ only applied one of the relevant factors—supportability. The ALJ found that Dr. Erickson provided no objective medical evidence to support his opinion on Ms. Petty’s inability to work, a finding that is supported by the record. In Dr. Erickson’s 2015 questionnaire, he identified Ms. Petty’s limitations as "burning mouth, dry eye, PTSD, and anxiety." However, he is not the primary treating source for these impairments and does not provide tests or laboratory results to support his assessments. Nor does he explain how these impairments would keep Ms. Petty off task for 30% of the workday, as he opined in his statement. 104 Nonetheless, the ALJ erred by not addressing the other § 416.927(c) factors to determine what deference, if any, to accord Dr. Erickson’s opinion; accordingly, the Court will remand this issue to the ALJ for further consideration. The Court’s decision, however, does not preclude the ALJ from according little or no weight to Dr. Erickson’s opinions. If after considering each of the § 416.927(c) factors, the ALJ determines no deference is 103 See 20 C.F.R. 416.927(c). 104 A.R. 906–07. From the Court’s review of the record, Dr. List is treating Ms. Petty’s burning mouth syndrome. See A.R. 580 ("[Ms. Petty] has burning mouth, seeing List."). Dr. Coon is treating Ms. Petty for dry eye syndrome. See A.R. 677–88. And ANP Boga and Ms. Foster-Dalmolin are treating Ms. Petty for PTSD and anxiety. See A.R. 397–466. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 24 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 24 of 30 warranted, she must provide clear and convincing reasons to the extent Dr. Erickson’s opinions are uncontradicted, or specific and legitimate reasons as to opinions contradicted by another source, all supported by substantial evidence in the record. Sensitivity to Light Ms. Petty next asserts that the physical RFC determination is erroneous because the ALJ "ignored the significant amount of evidence which suggested Petty had a limitation on her ability to be exposed to bright light." 105 But to claim disability based on a subjective symptom, such as light sensitivity, a claimant must "produce objective medical evidence of an underlying impairment" and "show that the impairment or combination of impairments could reasonably be expected to (not that it did in fact) produce some degree of symptom." 106 Ms. Petty is not required to produce "objective medical evidence of the pain or fatigue itself," or "objective medical evidence of the causal relationship between the medically determinable impairment and the symptom."107 Rather, if a claimant shows that the underlying impairment could have reasonably been expected to cause some degree of the subjective symptom, the ALJ may only reject a claimant's subjective complaints for "specific, clear and convincing reasons." 108 105 Docket 10 at 19 (citing SSR 96-8p). 106 Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citing Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991); Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). 107 Smolen, 80 F.3d at 1282 (citing Bunnell, 947 F.2d at 345, and 347–48). 108 Burrell v. Colvin, 775 F.3d 1133, 1136 (citing Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)). Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 25 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 25 of 30 In Smolen, the claimant offered the opinions of three medical sources, all of whom opined that Ms. "Smolen’s fatigue could reasonably have resulted from her childhood cancer treatment." The Ninth Circuit held that the uncontroverted medical opinions, which linked Ms. Smolen’s childhood cancer to her fatigue and pain, was sufficient to establish that the impairments could have reasonably caused her symptoms. 109 But here, Ms. Petty did not offer any evidence linking her keratitis to her subjective complaints about light sensitivity, nor did she testify to her light sensitivity during the administrative hearing. The ALJ did not address this symptom specifically but provided specific, clear and convincing reasons for questioning Ms. Petty’s subjective complaints. 110 First, Ms. Petty "worked only sporadically throughout adulthood," which the ALJ found "rais[ed] a question as to whether [Ms. Petty’s] continuing unemployment is actually due to medical impairments."111 Second, the record included conflicting testimony regarding Ms. Petty’s smoking habits and drug use. 112 Third, Ms. Petty has given different accounts to different providers of being kidnapped and held in captivity. Fourth, Ms. Petty alleged that she lost 170 pounds in a 9-month period, but from the ALJ’s review of the record, the weight loss has been far less, "at most 35 pounds from 2011 through 2014." Finally, Ms. Petty reported to various providers that she had been 109 Smolen, 80 F.3d at 1283. 110 A.R. 24. 111 A.R. 23. 112 A.R. 23. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 26 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 26 of 30 diagnosed with conditions for which there were no diagnoses. 113 For example, Ms. Petty reported to ANP Boga that she had been diagnosed with lupus, but the record contains "no evidence" of such diagnosis. And Ms. Petty "has acknowledged that she has not been diagnosed with an autoimmune disorder, despite continuing to report an autoimmune disorder as an impairment."114 The ALJ’s reasons for rejecting the subjective evidence as to the severity of Ms. Petty’s symptoms are specific, clear and convincing, and supported by the record. Accordingly, the ALJ did not err by omitting Ms. Petty’s alleged sensitivity to light from the RFC assessment. ANP Jean Boga Ms. Petty also argues that the ALJ erred as a matter of law in rejecting ANP Boga’s mental functioning opinion. 115 ANP Boga saw Ms. Petty approximately twelve times over the span of two years and conducted psychiatric evaluations of Ms. Petty in 2008 and 2012. 116 In the 2012 psychiatric evaluation, after noting that Ms. Petty had no history of a bipolar diagnosis in her medical records, ANP Boga includes diagnoses of PTSD, personality disorder, and bipolar disorder type II. 117 ANP Boga also treated Ms. Petty for 113 A.R. 23. 114 A.R. 23. See also A.R. 310 (Ms. Petty reported a Sjogren autoimmune disease diagnosis in October 2013); A.R. 488 (Dr. Ragle writes that Ms. Petty tested negative for Sjogren specific antibodies in March 2013); A.R. 467 (In February 2013, Dr. Pullman writes that Ms. Petty’s "biopsies did not support Sjogren’s syndrome and her idea that her saliva glands are secreting acid [is] very unlikely"). 115 Docket 10 at 20. 116 The record includes notes from at least twelve visits between May 9, 2012 and December 1, 2014. See A.R. 397–402; 436–56; 854–65. 117 A.R. 399. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 27 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 27 of 30 anxiety and depression. 118 At the request of Ms. Petty’s counsel, ANP Boga partially completed a medical source statement on December 29, 2014, in which she opined that due to Ms. Petty’s mental health conditions, she was precluded from performing activities within a schedule and maintaining regular attendance, sustaining an ordinary routine, and maintaining attention and concentration for extended periods of time. 119 ANP Boga also opined that Ms. Petty had no difficulty with social interactions; she could interact appropriately with the general public and ask simple questions or request assistance. ANP Boga asserted that Ms. Petty’s sleep was adversely affected by her bipolar disorder and that Ms. Petty’s condition or medication would cause lapses in her memory and concentration. The ALJ accorded no weight to ANP Boga’s medical source statement for the following reasons: (1) she "is not an acceptable medical source within the meaning of the regulations"; (2) her "opinions regarding the claimant’s memory and cognitive limitations are unsupported by neuropsychological testing or consistent examination findings"; and (3) her opinions "are necessarily based on the claimant’s presentation and subjective reports," which the ALJ found not credible. 120 Pursuant to SSR 06-3p, a nurse practitioner, while a "medical source," is not an "acceptable medical source," and thus she may not establish the "existence of a medically 118 See, e.g., A.R. 397, 436, 456. 119 A.R. 905. 120 A.R. 25. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 28 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 28 of 30 determinable impairment" or give medical opinions. 121 ANP Boga opined that bipolar disorder is a limiting impairment for Ms. Petty. Yet a bipolar diagnosis is unconfirmed by an acceptable medical source in the record. Notably, Dr. Erickson, who appears to be familiar with ANP Boga’s treatment of Ms. Petty, assessed Ms. Petty for anxiety and depression but did not include bipolar disorder. 122 Rather, in his 2015 questionnaire, Dr. Erickson lists PTSD and anxiety as Ms. Petty’s mental health impairments. 123 Only ANP Boga lists a diagnosis for bipolar disorder, but as an unacceptable medical source, her opinion cannot form a basis for a medically determinable impairment under the applicable SSR. Moreover, ANP Boga’s diagnosis is unaccompanied by objective medical tests and appears to be based on Ms. Petty’s subjective reports, as to which the ALJ provided valid reasons for finding them not credible. Because ANP Boga’s opinion appears to be based solely on a bipolar disorder, the ALJ properly rejected it. V. CONCLUSION The Court, having carefully reviewed the administrative record, finds that the ALJ’s analysis of Dr. Erickson’s opinion is not free from legal error. Accordingly, IT IS ORDERED that Ms. Petty’s opening brief at Docket 10 is GRANTED IN PART as set 121 SSR 06–3p, 2006 WL 2329939 (Aug. 9, 2006) (citing 20 C.F.R. 404.1513(a), 416.913(a) and 202 C.F.R. 404.1527(a)(2), 416.927(a)(2)). SSR 06-3p was rescinded by the Federal Register Notice Vol. 82, No. 57, page 15263 effective March 27, 2017. But because Ms. Petty submitted her application prior to the ruling being rescinded, the Court will apply SSR 06-3p to Ms. Petty’s claim. 122 See, e.g., A.R. 885, A.R. 903. 123 A.R. 906. Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 29 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 29 of 30 forth herein, the Commissioner’s final decision is VACATED, and the case is REMANDED to the SSA for further proceedings consistent with this decision. On remand, the Commissioner is directed to apply the 20 C.F.R. § 416. 927(c) factors to determine the weight, if any, to accord to Dr. Erickson’s opinions, and then take such further steps, if any, as may then be warranted. The Clerk of Court is directed to enter judgment accordingly. DATED this 21st day of June, 2017./s/Sharon L. Gleason UNITED STATES DISTRICT JUDGE Case No. 3:16-cv-00117-SLG, Petty v. Berryhill Decision & Order Page 30 of 30 Case 3:16-cv-00117-SLG Document 16 Filed 06/21/17 Page 30 of 30

JUDGMENT: THAT the Commissioner's final decision is VACATED, and thecase is REMANDED to the Social Security Administration for furtherproceedings consistent with this decision. Signed by Judge Sharon L. Gleason on 06/22/2017.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA JANET LYNN PETTY, Plaintiff, Case Number 3:16-CV-00117-SLG v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant. JUDGMENT IN A CIVIL CASE JURY VERDICT. This action came before the court for a trial by jury. The issues have been tried and the jury has rendered its verdict. xx DECISION BY COURT. This action came to trial or decision before the Court. The issues have been tried or determined and a decision has been rendered. IT IS ORDERED AND ADJUDGED: THAT the Commissioner's final decision is VACATED, and the case is REMANDED to the Social Security Administration for further proceedings consistent with this decision. APPROVED: s/Sharon L. Gleason SHARON L. GLEASON United States District Judge Date: June 22, 2017 NOTE: Award of prejudgment interest, Lesley K. Allen costs and attorney's fees are governed Lesley K. Allen, by D.Ak. LR 54.1, 54.3, and 58.1. Clerk of Court [Jmt2-Basic-rev. 1-13-16} Case 3:16-cv-00117-SLG Document 17 Filed 06/22/17 Page 1 of 1

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

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 JANET LYNN PETTY, Plaintiff, Civil Action No. 3:16-CV-00117-SLG v-NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------Motion for Attorney’s Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 COMES NOW Plaintiff, by her attorney, Howard D. Olinsky, moves the court for an award to be paid by the Defendant under the Equal Access to Justice Act, 28 USCS § 2412. Plaintiff may receive an award under the Equal Access to Justice Act because she is the prevailing party, is an individual whose net worth did not exceed two million dollars when the action was filed, and the position of the United States and at the agency was not substantially justified. There are no special circumstances in this case which make an award under the EAJA unjust. Case 3:16-cv-00117-SLG Document 18 Filed 09/14/17 Page 1 of 2 This motion is supported by a Declaration of Plaintiff’s attorney, attached time and cost records and an Affidavit and Waiver of Direct Payment by the plaintiff. Executed this September 14, 2017 Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky New York Bar # 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com To: Richard L. Pomeroy, Esq. Assistant U.S. Attorney 222 West Seventh Avenue, Room 253 Anchorage, Alaska 99513-7567 Telephone: (907) 271-5071 Fax: (907) 271-2344 E-mail: richard.pomeroy@usdoj.gov Case 3:16-cv-00117-SLG Document 18 Filed 09/14/17 Page 2 of 2

Proposed Order

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA JANET LYNN PETTY, Plaintiff, Civil Action No. 3:16-CV-00117-SLG-v-COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------(Proposed) Order Awarding Attorney’s Fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) Before the Court is the Motion of Plaintiff Janet Lynn Petty for award of attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Based on the pleadings as well as the position of the defendant commissioner, if any, and recognizing the Plaintiff’s waiver of direct payment and assignment of EAJA to her counsel, IT IS HEREBY ORDERED that attorney fees, expenses, and costs in the total amount of Six Thousand Four Hundred Eighteen Dollars and Forty-Five Cents ($6,418.45) 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 $6,418.45 for paralegal and attorney’s fees under 28 U.S.C. § 2412(d); 2. Plaintiff is awarded $19.29 in expenses for Certified Mail for service of Summons and Complaint. If the U.S. Department of the Treasury determines that Plaintiff’s EAJA fees, expenses, and costs are not subject to offset allowed under the Department of the Treasury’s Offset Program (TOPS), then the check for EAJA fees, expenses, and costs shall be made payable to Plaintiff’s attorney, Paul Eaglin. 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 Case 3:16-cv-00117-SLG Document 18-1 Filed 09/14/17 Page 1 of 2 Suite 420 Syracuse, NY 13202 So ordered. Date: ________________ ______________________________ Sharon L. Gleason United States District Judge [proposed Order proffer: Howard D. Olinsky; copy to Richard L. Pomeroy] Case 3:16-cv-00117-SLG Document 18-1 Filed 09/14/17 Page 2 of 2

DECLARATION of Howard D. Olinsky, Esq. re [18] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Janet Lynn Petty.

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 JANET LYNN PETTY, Plaintiff, Civil Action No. 3:16-CV-00117-SLG v-NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------Attorney’s Affirmation In Support Of Fees Pursuant To the Equal Access to Justice Act, 28 U.S.C. § 2412 ________________________________________ STATE OF NEW YORK) COUNTY OF ONONDAGA) ss: Howard D. Olinsky, affirms and declares as follows: 1. I am an attorney licensed to practice law in the State of New York and admitted to the District of Alaska Federal Court Pro Hac Vice and I am the plaintiff’s attorney in this matter. 2. I make this affirmation knowing that the Court will rely upon it assessing any awards under the Equal Access to Justice Act disposed of under 28 USCS § 2412. 3. There are no special circumstances in this case which make an award under the EAJA unjust. Case 3:16-cv-00117-SLG Document 19 Filed 09/14/17 Page 1 of 3 4. The Court ordered on June 21, 2017 that the above-entitled case be remanded for further proceedings, under the fourth sentence of 42 U.S.C. § 405(g). 5. For the Equal Access to Justice Act, I am requesting an hourly rate of $192.68 for attorney time. See generally, http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 U.S.C.A 9th Circuit EAJA Table. If attorney fees are calculated at this rate for 28.9 hours of work performed, they total $5,568.45 6. I am also requesting $100.00 per hour for 8.5 hours of paralegal time equaling $850.00. I am requesting $6,418.45 for Counsel fees which includes both attorney and paralegal time. 7. The time accounting is presented to the court in two fashions. The total compensable time spent by all professional staff (Exhibit A); the total compensable time spent by all attorneys (Exhibit B); the total compensable time spent by paralegals (Exhibit C). The attorneys involved in this case are as follows: Paul B. Eaglin, Esq., Howard D. Olinsky, Esq., and Michelle Fecio, Esq. The paralegals involved in working on this case are as follows: Shannon Persse, Michelle Callahan, Michael Smith, Vincent Wisehoon, Kyrsten Gifford, and Tamica Lockwood. 8. I am requesting reimbursement of expenses in the amount $19.29 for Certified Mail for service of the summons and complaint as shown in Exhibit D. 9. All services on this case were rendered by your affiant and my professional staff, unless specifically noted otherwise. The attached records were created and stored in the firms Prevail Database, and are printed out and attached. The itemized time represents hours spent preparing and handling this case for U.S. District Court. Clerical time is not included in this petition or has been zeroed out. 10. Attached is the Fee Agreement duly executed by the plaintiff (Exhibit E). Case 3:16-cv-00117-SLG Document 19 Filed 09/14/17 Page 2 of 3 Waiver of Direct Payment of EAJA Fees 11. Attached is an Affidavit and Waiver of Direct Payment duly executed by the plaintiff (Exhibit F). With this Waiver, if Plaintiff owes a debt that qualifies under the Treasury Offset Program (31 USCS § 3716), any payment shall be made payable to the Plaintiff and delivered to the Plaintiff’s attorney. If the United States Department of Treasury determines that Plaintiff owes no debt subject to offset, the government will pay such fees directly to the Plaintiff’s attorney. Astrue v. Ratliff, 560 U.S. 586 (U.S. 2010). Executed this September 14, 2017 Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky New York Bar # 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Email: fedctgroup@windisability.com To: Richard L. Pomeroy, Esq. Assistant U.S. Attorney 222 West Seventh Avenue, Room 253 Anchorage, Alaska 99513-7567 Telephone: (907) 271-5071 Fax: (907) 271-2344 E-mail: richard.pomeroy@usdoj.gov Case 3:16-cv-00117-SLG Document 19 Filed 09/14/17 Page 3 of 3

Exhibit A All Professional Time

Exhibit A Ledger Petty, Janet Lynn Date  Subject Hours Timekeeper 5/26/2016 Telephone Call with Client re: Completed debt conference call, explained process 0.4 Callahan, Michelle 5/26/2016 Files received, reviewed and processed from referral source for Attorney review 0.7 Callahan, Michelle 5/26/2016 Correspondence to Client re: Referral acknowledgment letter 0.2 Callahan, Michelle 5/26/2016 Review decisions and evidence to determine whether to appeal case 1 Eaglin, Paul B. 6/1/2016 FDC prospect packet prepared for Client completion 0.5 Callahan, Michelle 6/1/2016 Telephone call with Client re: Assistance with In Forma Pauperis application 0.4 Callahan, Michelle 6/1/2016 FDC Prospect packet sent via Right Signature for client completion 0.2 Callahan, Michelle 6/2/2016 FDC packet forms returned via Right Signature, reviewed for completion 0.3 Callahan, Michelle 6/9/2016 Draft complaint, proposed summons, civil cover sheet, and letter to clerk 0.7 Eaglin, Paul B. 6/9/2016 Review motion for leave in forma pauperis, approve for filing 0.2 Eaglin, Paul B. 6/10/2016 Federal Court-Accept Letter-New FDC Filing 0.3 Smith, Michael P. 6/10/2016 Review Summons Issued (text notice only) 0.1 Eaglin, Paul B. 6/10/2016 Review Order granting In Forma Pauperis status, directing service of process 0.1 Eaglin, Paul B. 6/17/2016 Received and processed Issued Summons via USPS 0.1 Smith, Michael P. 6/17/2016 Review Summons Issued via USPS 0.2 Eaglin, Paul B. 6/27/2016 Federal Court-Service of Process-Prepare Service packets USAO, OGC, AG 0.6 Callahan, Michelle 7/6/2016 Combine and file proof of service via CM/ECF 0.3 Callahan, Michelle 7/6/2016 Review Summons executed, record answer due date for monitoring 0.2 Eaglin, Paul B. 7/8/2016 Review Notice of appearance Joseph Langkamer o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 8/29/2016 Review Answer to complaint 0.1 Eaglin, Paul B. 8/31/2016 Combine, OCR, and live bookmark Federal Court Transcript (940 pages) 1 Lockwood, Tamica 8/31/2016 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 9/22/2016 Received and processed change of address 0.1 Gifford, Kyrsten 9/23/2016 Review certified administrative record, take notes 6.6 Fecio, Michelle 9/26/2016 Continue reviewing CAR, taking notes and organizing facts 2.9 Fecio, Michelle 9/27/2016 Drafting procedural section, drafting facts 5.5 Fecio, Michelle 9/28/2016 Research issues and drafting arguments 5.5 Fecio, Michelle 9/28/2016 Senior Attorney review draft brief, suggest edits 0.7 Eaglin, Paul B. 9/28/2016 Implement suggested edits, finalize and file brief (n/c for filing) 0.5 Fecio, Michelle 10/28/2016 Review Defendant's response in opposition to motion (17 pages) 0.4 Eaglin, Paul B. 10/28/2016 Assign Attorney writer to access/write reply 0.2 Eaglin, Paul B. 11/10/2016 Review briefs, draft reply brief 2 Fecio, Michelle 11/11/2016 Senior Attorney review draft reply brief, suggest edits 0.1 Eaglin, Paul B. 11/11/2016 Implement suggested edits, finalize and file reply brief (n/c for filing) 0.1 Fecio, Michelle 12/2/2016 Review Notice of appearance Richard Pomeroy o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 2/10/2017 Review Docket annotation Nancy A. Berryhill substituted for Carolyn W. Colvin 0.1 Eaglin, Paul B. 3/22/2017 Telephone call with Client re: Status update 0.1 Vincent Wisehoon 6/1/2017 Telephone call with Client re: Status update 0.2 Vincent Wisehoon 6/21/2017 Review Decision and order remanding for further proceedings (30 pages) 0.4 Olinsky, Howard D. 6/22/2017 Review Judgment in favor of Janet Lynn Petty 0.1 Olinsky, Howard D. 37.40 (Type = Time) and (Client = Janet Lynn Petty) and ((Date = blank) or (Date = blank) or (Hours > 0))    Case 3:16-cv-00117-SLG Document 19-1 Filed 09/14/17 Page 2 of 3 Date  Subject Hours Timekeeper 6/23/2017 Federal Court-Remand Referral back to Referral Source 0.3 Callahan, Michelle 6/23/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 7/7/2017 Telephone call with Client re: Status and explained remand 0.2 Vincent Wisehoon 9/14/2017 EAJA Preparation 1.5 Persse, Shannon 9/14/2017 Review Timeslips Finalize EAJA Motion 0.5 Olinsky, Howard D. 9/14/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 37.40 (Type = Time) and (Client = Janet Lynn Petty) and ((Date = blank) or (Date = blank) or (Hours > 0))    Case 3:16-cv-00117-SLG Document 19-1 Filed 09/14/17 Page 3 of 3

Exhibit B Attorney Time

Exhibit B Ledger Petty, Janet Lynn Date  Subject Hours Timekeeper 5/26/2016 Review decisions and evidence to determine whether to appeal case 1 Eaglin, Paul B. 6/9/2016 Draft complaint, proposed summons, civil cover sheet, and letter to clerk 0.7 Eaglin, Paul B. 6/9/2016 Review motion for leave in forma pauperis, approve for filing 0.2 Eaglin, Paul B. 6/10/2016 Review Summons Issued (text notice only) 0.1 Eaglin, Paul B. 6/10/2016 Review Order granting In Forma Pauperis status, directing service of process 0.1 Eaglin, Paul B. 6/17/2016 Review Summons Issued via USPS 0.2 Eaglin, Paul B. 7/6/2016 Review Summons executed, record answer due date for monitoring 0.2 Eaglin, Paul B. 7/8/2016 Review Notice of appearance Joseph Langkamer o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 8/29/2016 Review Answer to complaint 0.1 Eaglin, Paul B. 8/31/2016 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 9/23/2016 Review certified administrative record, take notes 6.6 Fecio, Michelle 9/26/2016 Continue reviewing CAR, taking notes and organizing facts 2.9 Fecio, Michelle 9/27/2016 Drafting procedural section, drafting facts 5.5 Fecio, Michelle 9/28/2016 Research issues and drafting arguments 5.5 Fecio, Michelle 9/28/2016 Senior Attorney review draft brief, suggest edits 0.7 Eaglin, Paul B. 9/28/2016 Implement suggested edits, finalize and file brief (n/c for filing) 0.5 Fecio, Michelle 10/28/2016 Review Defendant's response in opposition to motion (17 pages) 0.4 Eaglin, Paul B. 10/28/2016 Assign Attorney writer to access/write reply 0.2 Eaglin, Paul B. 11/10/2016 Review briefs, draft reply brief 2 Fecio, Michelle 11/11/2016 Senior Attorney review draft reply brief, suggest edits 0.1 Eaglin, Paul B. 11/11/2016 Implement suggested edits, finalize and file reply brief (n/c for filing) 0.1 Fecio, Michelle 12/2/2016 Review Notice of appearance Richard Pomeroy o/b/o Carolyn Colvin 0.1 Eaglin, Paul B. 2/10/2017 Review Docket annotation Nancy A. Berryhill substituted for Carolyn W. Colvin 0.1 Eaglin, Paul B. 4/20/2017 Draft motion for pro hac vice re: Howard D. Olinsky, Esq. 0 Olinsky, Howard D. 4/21/2017 Review Clerks notice granting Pro Hac Vice application 0 Olinsky, Howard D. 6/21/2017 Review Decision and order remanding for further proceedings (30 pages) 0.4 Olinsky, Howard D. 6/22/2017 Review Judgment in favor of Janet Lynn Petty 0.1 Olinsky, Howard D. 9/14/2017 Review Timeslips Finalize EAJA Motion 0.5 Olinsky, Howard D. 28.90 (Type = Time) and (Client = Janet Lynn Petty) and ((Timekeeper = Eaglin, Paul B.) or (Timekeeper = Fecio, Michelle) or (Timekee...    Case 3:16-cv-00117-SLG Document 19-2 Filed 09/14/17 Page 2 of 2

Exhibit C Paralegal Time

Exhibit C Ledger Petty, Janet Lynn Date  Subject Hours Timekeeper 5/26/2016 Telephone Call with Client re: Completed debt conference call, explained process 0.4 Callahan, Michelle 5/26/2016 Files received, reviewed and processed from referral source for Attorney review 0.7 Callahan, Michelle 5/26/2016 Correspondence to Client re: Referral acknowledgment letter 0.2 Callahan, Michelle 6/1/2016 FDC prospect packet prepared for Client completion 0.5 Callahan, Michelle 6/1/2016 Telephone call with Client re: Assistance with In Forma Pauperis application 0.4 Callahan, Michelle 6/1/2016 FDC Prospect packet sent via Right Signature for client completion 0.2 Callahan, Michelle 6/2/2016 FDC packet forms returned via Right Signature, reviewed for completion 0.3 Callahan, Michelle 6/9/2016 Email Initiating case documents to the clerk for filing/docketing 0 Smith, Michael P. 6/10/2016 Federal Court-Accept Letter-New FDC Filing 0.3 Smith, Michael P. 6/10/2016 Download, file, save and distribute ECF re: Complaint 0 Vita, Robyn 6/10/2016 Download, file, save and distribute ECF re: Civil Cover Sheet 0 Vita, Robyn 6/10/2016 Download, file, save and distribute ECF re: Motion for Leave in Forma Pauperis 0 Vita, Robyn 6/10/2016 Download, file, save and distribute ECF re: Unissued summons 0 Vita, Robyn 6/10/2016 Download, file, save and distribute ECF re: Summons issued (notice only) 0 Vita, Robyn 6/10/2016 Download, file, save & distribute ECF re: Order directing service, granting IFP 0 Vita, Robyn 6/17/2016 Received and processed Issued Summons via USPS 0.1 Smith, Michael P. 6/27/2016 Federal Court-Service of Process-Prepare Service packets USAO, OGC, AG 0.6 Callahan, Michelle 7/5/2016 Download, file, save electronic return receipts USAO, and OCG 0 Callahan, Michelle 7/6/2016 Download, file, save electronic return receipt Attorney General 0 Callahan, Michelle 7/6/2016 Combine and file proof of service via CM/ECF 0.3 Callahan, Michelle 7/6/2016 Download, file, save and distribute ECF re: Summons returned executed 0 Vita, Robyn 7/8/2016 Download, file, save and distribute ECF re: NOA John Langkamer 0 Vita, Robyn 8/29/2016 Download, file, save and distribute ECF re: Answer to complaint 0 Vita, Robyn 8/30/2016 Download, file and save federal court transcript in eleven (11) parts 0 Vita, Robyn 8/31/2016 Combine, OCR, and live bookmark Federal Court Transcript (940 pages) 1 Lockwood, Tamica 9/22/2016 Received and processed change of address 0.1 Gifford, Kyrsten 9/29/2016 Download, file, save and distribute ECF re: Motion brief 0 Vita, Robyn 10/28/2016 Download, file, save and distribute ECF re: Response in opposition 0 Vita, Robyn 11/11/2016 Download, file, save and distribute ECF re: Reply to response 0 Vita, Robyn 12/2/2016 Download, file, save and distribute ECF re: NOA Richard Pomeroy 0 Vita, Robyn 2/10/2017 Download, file, save and distribute ECF re: Docket annotation Berryhill 0 Vita, Robyn 3/22/2017 Telephone call with Client re: Status update 0.1 Vincent Wisehoon 4/20/2017 File Motion for Howard D. Olinsky to appear Pro Hac Vice 0 Callahan, Michelle 4/20/2017 Download, file, save and distribute ECF re: Motion for pro hac vice HDO 0 Vita, Robyn 4/21/2017 Download, file, save and distribute ECF re: Clerks notice granting Pro Hac Vice 0 Vita, Robyn 6/1/2017 Telephone call with Client re: Status update 0.2 Vincent Wisehoon 6/21/2017 Download, file, save and distribute ECF re: Decision and order 0 Vita, Robyn 6/22/2017 Download, file, save and distribute ECF re: Judgment 0 Vita, Robyn 6/23/2017 Federal Court-Remand Referral back to Referral Source 0.3 Callahan, Michelle 6/23/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 8.50 (Type = Time) and (Client = Janet Lynn Petty) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Gifford, Kyrsten) or (Tim...    Case 3:16-cv-00117-SLG Document 19-3 Filed 09/14/17 Page 2 of 3 Date  Subject Hours Timekeeper 7/7/2017 Telephone call with Client re: Status and explained remand 0.2 Vincent Wisehoon 9/14/2017 EAJA Preparation 1.5 Persse, Shannon 9/14/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 8.50 (Type = Time) and (Client = Janet Lynn Petty) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Gifford, Kyrsten) or (Tim...    Case 3:16-cv-00117-SLG Document 19-3 Filed 09/14/17 Page 3 of 3

Exhibit D Expenses

Exhibit D Ledger Petty, Janet Lynn Date Subject Amount Timekeeper 6/27/2016 Certified Mail Expense Summons and Complaint packets to Defendant's offices $19.29 Callahan, Michelle $19.29 (Type = Cost)    Case 3:16-cv-00117-SLG Document 19-4 Filed 09/14/17 Page 2 of 2

Exhibit E Affirmation and Waiver of Direct Payment of EAJA Fees

Exhibit E UNITED STATES DISTRICT COURT DISTRICT OF ALASKA (ANCHORAGE DIVISION)--------------------------------------------------------------JANET LYNN PETTY, AFFIRMATION AND WAIVER OF DIRECT PAYMENT Plaintiff, OF EAJA FEES v. Civil Action No.: _________________ CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.---------------------------------------------------------------Janet Lynn Petty, 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 June 1, 2016. __________________________ Janet Lynn Petty Plaintiff Case 3:16-cv-00117-SLG Document 19-5 Filed 09/14/17 Page 2 of 2

Memorandum in Support

HOWARD D. OLINSKY, Esq. New York No. 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedctgroup@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA JANET LYNN PETTY, Plaintiff, Civil Action No. 3:16-CV-00117-SLG v-NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------Memorandum in Support of Plaintiff’s Petition for Counsel Fee Allowance Under Equal Access to Justice Act 1. This is a memorandum in support of a petition for an award of Counsel Fees under the Equal Access to Justice Act, 28 USCS § 2412 "EAJA." 2. An EAJA award is available to a "prevailing party" in a case against the Federal Government, including Social Security cases, in the following instances: (a) When and if the plaintiff actually "prevails"; (b) The Government’s position in litigation is "not substantially justified"; (c) Plaintiff is a party whose net assets are worth less than two million dollars; and Case 3:16-cv-00117-SLG Document 19-6 Filed 09/14/17 Page 1 of 3 (d) The case has concluded with a "final order" which is non-appealable, or will not be appealed. 3. Addressing these elements in reverse order, it is clear that the Plaintiff has met the burden necessary to receive EAJA fees. (a) Plaintiff’s net worth did not exceed $2,000,000.00 when this action was filed. (b) After service of the summons and complaint and submission of a brief by the both parties, District Judge Hon. Sharon L. Gleason signed an Order on June 21, 2017 remanding this matter to the Commissioner for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g). (c) Judgment was entered on June 22, 2017. The Judgment has not been appealed. (d) Plaintiff has prevailed because the District Court remanded the case under sentence four of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292 (U.S. 1993) 4. The commissioner was not substantially justified. As the U. S. Supreme Court has held, "the required'not substantially justified’ allegation imposes no proof burden on the fee applicant. It is, as its text conveys, nothing more than an allegation or pleading requirement. The burden of establishing'that the position of the United States was substantially justified’ … must be shouldered by the Government." Scarborough v. Principi, 541 U. S. 401, 414 (2004). While the fee applicant such as Plaintiff is required to "show" three of the four elements—prevailing party status, financial eligibility, and amount sought—Plaintiff need only "to allege" that the position of the government is not substantially justified. Id. WHEREFORE, because all four elements of an allowable application for EAJA fees have been proven or alleged, petitioner humbly prays that the Court issue an order: Case 3:16-cv-00117-SLG Document 19-6 Filed 09/14/17 Page 2 of 3 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,418.45; 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 $19.29. I declare under the penalty of perjury that the foregoing is true and correct. Executed this September 14, 2017 Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky New York Bar # 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Email: fedctgroup@windisability.com To: Richard L. Pomeroy, Esq. Assistant U.S. Attorney 222 West Seventh Avenue, Room 253 Anchorage, Alaska 99513-7567 Telephone: (907) 271-5071 Fax: (907) 271-2344 E-mail: richard.pomeroy@usdoj.gov Case 3:16-cv-00117-SLG Document 19-6 Filed 09/14/17 Page 3 of 3

Certificate of Service

HOWARD D. OLINSKY, Esq. New York No. 2044865 Attorney for Plaintiff Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 Email: fedct@windisability.com UNITED STATES DISTRICT COURT DISTRICT OF ALASKA JANET LYNN PETTY, Plaintiff, Civil Action No. 3:16-CV-00117-SLG 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: Richard L. Pomeroy, Esq. Assistant U.S. Attorney 222 West Seventh Avenue, Room 253 Anchorage, Alaska 99513-7567 Telephone: (907) 271-5071 Fax: (907) 271-2344 E-mail: richard.pomeroy@usdoj.gov September 14, 2017/s/Howard D. Olinsky Howard D. Olinsky, Esq. Case 3:16-cv-00117-SLG Document 19-7 Filed 09/14/17 Page 1 of 1

RESPONSE in Opposition re [18] 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 Acting United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 JOSEPH J. LANGKAMER 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) 615-2212 Fax: (206) 615-2531 11 joseph.langkamer@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 JANET PETTY, Case No. 3:16-cv-00117-SLG 16 Plaintiff, 17 vs. DEFENDANT’S RESPONSE TO 18 PLAINTIFF’S MOTION FOR NANCY A. BERRYHILL, ATTORNEY’S FEES 19 Acting Commissioner of Social Security, 20 Defendant. 21 The Commissioner opposes Plaintiff’s request for attorney fees under the Equal Access to 22 Justice Act (EAJA). See ECF No. 18. Although the Court ultimately remanded this case, the 23 Page 1 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY’S FEES [3:16-cv-00117-SLG] Case 3:16-cv-00117-SLG Document 20 Filed 09/28/17 Page 1 of 5 1 Commissioner’s position nevertheless was substantially justified. Therefore, the Court should 2 deny Plaintiff’s motion for EAJA fees. 3 ARGUMENT 4 Under the EAJA, a court may "award attorneys’ fees, court costs, and other expenses 5 when a party prevails against the United States." Hardisty v. Astrue, 592 F.3d 1072, 1076 (9th 6 Cir. 2010). However, attorneys’ fees are not automatically awarded to the prevailing party. 7 Allen-Howard v. Astrue, No. 11-1116, 2013 WL 486665, at *1 (D. Or. Feb. 5, 2013) (citing 8 Fed. Election Comm’n v. Rose, 806 F.2d 1081, 1090 (D.C. Cir. 1986)). Instead, a court should 9 disallow a prevailing party from recovering fees where the government’s position was 10 "substantially justified." 28 U.S.C. § 2412(d)(1)(A). 11 To that end, the fact that a claimant prevails "does not raise a presumption that [the 12 government’s] position was not substantially justified." Kali v. Bowen, 854 F.2d 329, 334 (9th 13 Cir. 1988). The government’s position "can be justified even though it is not correct." Pierce 14 v. Underwood, 487 U.S. 552, 556 n.2 (1988). A substantially justified position "only requires 15 justification to a degree that could satisfy a reasonable person." Ibrahim v. U.S. Dep’t of 16 Homeland Sec., 835 F.3d 1048, 1056 (9th Cir. 2016) (internal quotations omitted). Therefore, a 17 court should deny EAJA fees if the government’s position had "a reasonable basis in law and 18 fact." Pierce, 487 U.S. at 556 n.2. 19 The Commissioner satisfied that standard here. Specifically, the Court rejected all of 20 Plaintiff’s arguments in this case, except for one. The Court determined that, even though there 21 was "limited support" for Dr. Erickson’s opinions and there were "inconsistencies between 22 them," ECF No. 16 at 23, the ALJ did not discuss all of the factors set forth in 20 C.F.R. 23 416.927(c) and, therefore, remand was appropriate. The Commissioner’s argument in favor of Page 2 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY’S FEES [3:16-cv-00117-SLG] Case 3:16-cv-00117-SLG Document 20 Filed 09/28/17 Page 2 of 5 1 affirmance, though, was substantially justified. 2 Under Section 416.927(c), "[u]nless we give a treating source’s opinion controlling 3 weight under paragraph (c)(2) of this section, we consider all of the following factors in deciding 4 the weight we give to any medical opinion." 20 C.F.R. § 416.927(c) (emphasis added). In line 5 with that regulation, the ALJ stated that she "considered opinion evidence in accordance with the 6 requirements of 20 CFR § 416.927 and [other relevant Social Security Rulings]." Tr. 17. Then, 7 in addressing Dr. Erickson’s opinions, the ALJ highlighted that Dr. Erickson’s opinion was 8 unsupported, which is a relevant factor under 20 C.F.R. § 416.927(c)(3). Notably, the Court 9 agreed with the ALJ’s finding. ECF No. 16 at 23. 10 The Court nevertheless remanded because the ALJ did not explicitly address other factors 11 under Section 416.927. ECF No. 16 at 24. However, the Ninth Circuit has never held in a 12 published opinion that ALJs must discuss all (or any) of the factors in Section 416.927(c) in the 13 written decision. Cf. Trevizo v. Berryhill, 862 F.3d 987, 998 (9th Cir. 2017) (ALJ committed 14 legal error by failing to "consider factors such as the length of the treating relationship, the 15 frequency of examination, the nature and extent of the treatment relationship, or the supportability 16 of the opinion.") (emphasis added). In fact, numerous courts have confirmed that ALJs do not 17 need to explicitly address all of the factors under Section 416.927(c). See, e.g., Rhodus v. 18 Berryhill, No. 16-238, 2017 WL 4150445, at * (D. Ariz. Sept. 19, 2017) (affirming where ALJ 19 rejected medical opinion because it was unsupported, pointing out that "the regulations do not 20 require the ALJ to discuss [the Section 416.927(c)] factors, only to consider them."); Ferris v. 21 Colvin, No. 14-2569, 2016 WL 1117771, at * (E.D. Cal. Mar. 3, 2016) ("Plaintiff points to no 22 authority for the proposition that ALJs must discuss each and every § 404.1527(c)(2) factor in 23 their decision, and indeed no such authority exists."); Mumphrey v. Astrue, No. 07-2725, 2008 Page 3 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY’S FEES [3:16-cv-00117-SLG] Case 3:16-cv-00117-SLG Document 20 Filed 09/28/17 Page 3 of 5 1 WL 2331928 at *7 (N.D. Cal. June 4, 2008) ("There is no requirement that the ALJ treat [the 2 medical opinion regulation] as a sort of checklist.").1 Therefore, although the Court determined 3 more was required of the ALJ, the Commissioner’s position in favor of affirmance had a 4 reasonable basis. 5 CONCLUSION 6 The Commissioner’s position was substantially justified. Therefore, the Commissioner 7 requests the Court to deny Plaintiff’s motion for attorney’s fees. 8 DATED this 28th day of September 2017. 9 Respectfully submitted, 10 BRYAN SCHRODER 11 United States Attorney 12 RICHARD L. POMEROY Assistant United States Attorney 13 MATHEW W. PILE 14 Acting Regional Chief Counsel, Seattle, Region X 15 s/Joseph J. Langkamer JOSEPH J. LANGKAMER 16 Special Assistant United States Attorney Office of the General Counsel 17 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 18 Seattle, WA 98104-7075 Telephone: (206) 615-2212 19 Fax: (206) 615-2531 joseph.langkamer@ssa.gov 20 21 1 Granted, some opinions have remanded because the ALJ did not discuss more of the medical opinion factors. See, e.g., Delegans v. Colvin, 584 F. App’x 328, 331 (9th Cir. 2014) (ALJ did 22 not discuss certain factors explicitly and they seemd to warrant "some deference"); Siegrist v. Astrue, No. 10-103, 2011 WL 3490483, at *7 (E.D. Wash. Aug. 10, 2011) (requiring ALJ to 23 discuss medical opinion factors). However, to the extent there is any disagreement in case law on this point, this demonstrates that, at a minimum, the Commissioner’s position was reasonable. Page 4 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY’S FEES [3:16-cv-00117-SLG] Case 3:16-cv-00117-SLG Document 20 Filed 09/28/17 Page 4 of 5 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing DEFENDANT’S RESPONSE TO PLAINTIFF’S 3 MOTION FOR ATTORNEY’S FEES was filed with the Clerk of the Court on September 28, 4 2017, using the CM/ECF system, which will send notification of such filing to the following: 5 Howard D. Olinsky 6 7 s/Joseph J. Langkamer JOSEPH J. LANGKAMER 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Page 5 DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY’S FEES [3:16-cv-00117-SLG] Case 3:16-cv-00117-SLG Document 20 Filed 09/28/17 Page 5 of 5

ORDER: awarding Plaintiff's Motion for Attorney Fees [18] Pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412(d). Signed by Judge Sharon L. Gleason on 10/30/2017. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ALASKA JANET LYNN PETTY, Plaintiff, Civil Action No. 3:16-cv-00117-SLG-v-COMMISSIONER OF SOCIAL SECURITY, Defendant.-----------------------------------------------------------Order Awarding Attorney’s Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) Before the Court is the Motion of Plaintiff Janet Lynn Petty for an award of attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (Docket 18). The Court has reviewed the motion as well as the Commissioner’s Opposition (Docket 20). The motion for fees will be granted, because the position of the Commissioner was not substantially justified. See Trevizo v. Berryhill, 862 F.3d 987 (9th Cir. 2017). In Trevizo, the Ninth Circuit held that the ALJ erred by failing to apply the appropriate factors set forth in the applicable regulation. The Circuit held that ALJ’s one-paragraph discussion of the claimant’s treating physician’s opinion, in which the ALJ found that the opinion was "inconsistent with other substantial evidence in [the claimant’s] case record," was inadequate. The Circuit added: "the ALJ did not consider factors such as the length of the treating relationship, the frequency of examination, the nature and extent of the treatment relationship, or the supportability of the opinion, id. § 404.152(c)(2)-(6). This failure alone constitutes reversible legal error." Id. at 998. In this case, the ALJ's brief three-paragraph discussion of Dr. Erickson’s opinions does not reference the length of the treatment relationship between Ms. Perry and the doctor, the Case 3:16-cv-00117-SLG Document 21 Filed 10/30/17 Page 1 of 3 frequency of her visits with him, and the nature and extent of the treatment relationship. 1 The ALJ’s generalized reference several pages earlier in the decision that she "considered opinion evidence in accordance with the requirements of 20 CFR 416.927" is inadequate to demonstrate that the ALJ considered the relevant factors when rejecting Dr. Erickson’s opinion. As 20 C.F.R. § 416.927(c)(2) itself explains, the Social Security Administration "will always give good reasons in our notice of determination or decision for the weight we give your treating source’s medical opinion." That was not done in this case with respect to Dr. Erickson. 2 Therefore, and in light of Plaintiff’s waiver of direct payment and assignment of EAJA to her counsel, IT IS HEREBY ORDERED that attorney fees, expenses, and costs are awarded pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) to Plaintiff as follows: 1. Plaintiff is awarded $6,418.45 for paralegal and attorney’s fees under 28 U.S.C. § 2412(d); 2. Plaintiff is awarded $19.29 in expenses for Certified Mail for service of the summons and Complaint. If the U.S. Department of the Treasury determines that Plaintiff’s EAJA fees, expenses, and costs are not subject to offset allowed under the Department of the Treasury’s Offset 1 See A.R. at 25. 2 The Court has reviewed the cases cited by the Commissioner in its Opposition (two of which predate Trevizo) and finds them inapposite. (See Docket 20 at 3-4). Rhodus v. Berryhill, 2017 WL 4150445 (D. Ariz. Sept. 19, 2017) involved only examining, not treating, physicians. In Ferris v. Colvin, 2016 WL 1117771 (E.D. Cal. Mar. 3, 2016), the ALJ found that the examining physician’s opinion was contradicted by that physician’s own medical records, and identified the specific post-operative notes to support that conclusion. Mumphrey v. Astrue, 2008 WL 2331928 (N.D. Cal. June 4, 2008), held "[t]here is no requirement that the ALJ treat § 404.1527(D) as a sort of checklist," but then added: "In any event, it is unclear how a more ample discussion of factors could have rescued [the examining physician’s] opinion in light of the lack of medical signs and laboratory findings to support it." Id. at *7. Case 3:16-cv-00117-SLG Document 21 Filed 10/30/17 Page 2 of 3 Program (TOPS), then the check for EAJA fees, expenses, and costs shall be made payable to Plaintiff’s attorney, Howard D. Olinsky. Whether the check is made payable to Plaintiff or to Howard D. Olinsky, the check shall be mailed to Howard D. Olinsky at the following address: 300 South State Street Suite 420 Syracuse, NY 13202 So ordered. Dated this 30th day of October, 2017, at Anchorage, Alaska./s/Sharon L. Gleason UNITED STATES DISTRICT JUDGE Case 3:16-cv-00117-SLG Document 21 Filed 10/30/17 Page 3 of 3

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Description
1
06/09/2016
COMPLAINT against Carolyn W. Colvin, filed by Janet Lynn Petty.
1
Exhibit A
1 Attachment
2
06/09/2016
Civil Cover Sheet
3
06/09/2016
MOTION for Leave to Proceed in forma pauperis by Janet Lynn Petty.
4
06/09/2016
Unissued summons re Defendant Carolyn W. Colvin
1
Unissued Summons re Defendant U.S. Attorney General
2
Unissued Summons re Defendant U.S. Attorney
2 Attachments
5
06/10/2016
ORDER DIRECTING SERVICE AND RESPONSE: RE 3 MOTION for Leave to Proceed in forma pauperis filed by Janet Lynn Petty is GRANTED.Service of Process to be completed w/in 90 days of the date the Complaint was filed. Clerk of Court to issue summonses. Defendant shall have 60 days to file an Answer or respond. (See order for details). Signed by Judge Sharon L. Gleason on 06/09/2016. Modified on 9/29/2016 to create relationship to document #10.
06/10/2016
Summons Issued as to Carolyn W. Colvin: Regional Chief Counsel, Office of the General Counsel, US Attorney, Attorney General. (Text entry; no document attached.)
6
07/06/2016
SUMMONS Returned Executed by Janet Lynn Petty. Carolyn W. Colvin served on 7/5/2016, answer due 9/6/2016.
7
07/08/2016
NOTICE of Appearance by Joseph John Langkamer on behalf of Carolyn W. Colvin
8
08/29/2016
ANSWER to 1 Complaint by Carolyn W. Colvin.
9
08/29/2016
Notice of Lodging Administrative Record
1
Certification Page
2
Court Transcript Index
3
Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable
4
Payment Documents and Decisions
5
Jurisdictional Documents and Notices
6
Non Disability Related Development
7
Disability Related Development
8
Medical Records Part 1
9
Medical Records Part 2
10
Medical Records Part 3
10 Attachments
10
09/28/2016
MOTION Brief in a Social Security Appeal by Janet Lynn Petty.
11
10/28/2016
RESPONSE in Opposition re 10 MOTION Brief in a Social Security Appeal filed by Carolyn W. Colvin.
12
11/11/2016
REPLY to Response to Motion re 10 MOTION Brief in a Social Security Appeal filed by Janet Lynn Petty.
13
12/02/2016
NOTICE of Appearance by Richard L. Pomeroy on behalf of Carolyn W. Colvin, Social Security Administration
02/10/2017
Docket Annotation: Nancy A. Berryhill; Acting Commissioner of Social Security, represented by Joseph John Langkamer & Richard L. Pomeroy substituted for Carolyn W. Colvin (acting Commissioner of Social Security) pursuant to FRCvP 25(d)(1). (Text entry; no document attached.)
14
04/20/2017
MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Howard D. Olinsky. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2318832.) by Janet Lynn Petty.
1
Certificate of Good Standing
1 Attachment
15
04/21/2017
CLERK'S NOTICE re 14 Application to Appear Pro Hac Vice. The Application to Appear Pro Hac Vice by Howard D. Olinsky, at docket 14, is authorized under D.Ak. LR 83.1(d).
16
06/21/2017
DECISION AND ORDER: The Commissioner's final decision is VACATED, and the case is REMANDED to the SSA for further proceedings (see order for full details). Signed by Judge Sharon L. Gleason on 06/21/2017. (AEM, CHAMBERS STAFF)
17
06/22/2017
JUDGMENT: THAT the Commissioner's final decision is VACATED, and thecase is REMANDED to the Social Security Administration for furtherproceedings consistent with this decision. Signed by Judge Sharon L. Gleason on 06/22/2017.
18
09/14/2017
First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Janet Lynn Petty.
1
Proposed Order
1 Attachment
19
09/14/2017
DECLARATION of Howard D. Olinsky, Esq. re [18] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Janet Lynn Petty.
1
Exhibit A All Professional Time
2
Exhibit B Attorney Time
3
Exhibit C Paralegal Time
4
Exhibit D Expenses
5
Exhibit E Affirmation and Waiver of Direct Payment of EAJA Fees
6
Memorandum in Support
7
Certificate of Service
7 Attachments
20
09/28/2017
RESPONSE in Opposition re [18] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Nancy A. Berryhill.
21
10/30/2017
ORDER: awarding Plaintiff's Motion for Attorney Fees [18] Pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412(d). Signed by Judge Sharon L. Gleason on 10/30/2017. (AEM, CHAMBERS STAFF)
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