Place v. Colvin
Court Docket Sheet

District of Alaska

1:2016-cv-00020 (akd)

MOTION to Remand to Social Security by Jeanette Lee Place.

1 PAUL B. EAGLIN Alaska Bar No. 9304010 2 Attorney for Plaintiff 3 Olinsky Law Group 300 South State Street 4 Syracuse, New York 13202 5 Telephone: (315) 701-5780 Fax: (315) 701-5781 6 peaglin@windisability.com 7 8 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ALASKA 9 Jeanette Lee Place, 10 11 Plaintiff, Case No. 1:16-CV-20-RRB 12 vs. 13 14 PLAINTIFF’S OPENING BRIEF Nancy A. Berryhill, (SOCIAL SECURITY) 15 Acting Commissioner of Social Security, 16 Defendant 17 18 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT 19 OF A SOCIAL SECURITY APPEAL 20 I. ISSUE PRESENTED FOR REVIEW 21 1. The ALJ’s residual functional capacity finding was the product of legal error 22 and was unsupported by substantial evidence in several respects. 23 (A) The ALJ fails to articulate "specific and legitimate reasons" for discounting the opinion of Plaintiff’s treating psychiatrist, Dr. Brogdon. 24 (B) The ALJ fails to articulate germane reasons for discounting the opinions of sources providing treatment that were not medically acceptable sources under the 25 regulations. 26 (C) The ALJ failed to fully and fairly develop the record despite Plaintiff representing herself pro se during the hearing. 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 1 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 1 of 20 1 II. STATEMENT OF THE CASE 2 (A) Procedural Posture & Statement of the Case 3 On June 1, 2013, Plaintiff Jeanette Lee Place f/k/a Jeanette Lee Sedberry f/k/a Jeanette 4 5 Lee Kelley ("Plaintiff") applied for Title II Social Security Disability Insurance ("SSDI"). 6 Administrative Transcript ("T") 203. Plaintiff alleged disability began five months prior, on 7 January 31, 2013 ("AOD"). Id. Plaintiff remained insured for Title II through March 31, 2016 8 ("DLI"). T 23. Plaintiff’s applications were initially denied on February 27, 2014 by a state 9 agency staffer and single decision maker, Sheryl Norton ("SDM"), and state agency 10 11 psychological consultant, Dr. Wandal Winn, MD. T 112, 116, 118, 120. 12 Plaintiff, representing herself pro se, requested a hearing, occurring on August 18, 2014 13 and March 23, 2015, before Administrative Law Judge Cecilia LaCara ("ALJ"). T 44–105. On 14 June 11, 2015, the ALJ found Plaintiff not disabled. T 21–38. On October 27, 2016, the 15 Appeals Council denied Plaintiff’s request for review, leaving the ALJ’s decision as the final 16 17 agency decision. T 1–2. Plaintiff filed this action seeking review of the ALJ’s decision. Dkt. 18 No. 1. This Court has jurisdiction. 42 U.S.C. § 405(g). 19 The Social Security Administration ("SSA" or "Agency") has promulgated a five-step 20 sequential evaluation process for use in making disability determinations. See 20 C.F.R. § 21 22 404.1520(a). The ALJ’s decision described the five-step process. T 22–23. 23 At Step 1, the ALJ found Plaintiff had not engaged in substantial gainful activity 24 ("SGA") since her AOD. T 13 (Finding No. 2). At Step 2, the ALJ found Plaintiff suffered from 25 severe impairments of posttraumatic stress disorder ("PTSD"), anxiety, depression, spondylosis, 26 osteoarthritis ("OA"), and degenerative joint disease ("DJD") of the shoulder. Id. (Finding No. 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 2 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 2 of 20 1 3). The ALJ found Plaintiff’s obesity (BMI 40.67) non-severe. T 24. At Step 3, the ALJ found 2 these impairments did not meet or equal a Listing, and that Plaintiff exhibited mild restriction in 3 the activities of daily living ("ADLs"), moderate deficits in social functioning, and mild 4 5 limitations in concentration, persistence, or pace ("CPP"). T 24–26. 6 The ALJ’s residual functional capacity ("RFC") finding determined Plaintiff could 7 engage in "light work," including the following limitations, 8 the ability to sit for 6 hours in an 8-hour workday and stand and/or walk for 6 9 hours in an 8-hour workday with normal breaks. The claimant can occasionally climb ladders, ropes or scaffolds. The claimant can occasionally stoop and crawl, 10 and frequently crouch. The claimant can frequently reach, handle and finger 11 (bilaterally). The claimant must avoid concentrated exposure to extreme cold and excessive vibration. The claimant must avoid operational control of moving 12 machinery, unprotected heights and hazardous machinery. The claimant is limited to work in low stress jobs defined as having only occasional decision making 13 required and changes in the work setting. The claimant can have only superficial 14 interaction with the public and co-workers. 15 T 26 (Finding No. 5). At Step 4, the ALJ relied upon vocational expert ("VE") testimony to find 16 Plaintiff could not return to past work. T 36 (Finding No. 6). The ALJ, again relying upon VE 17 testimony, thus reached Step 5 and found Plaintiff could engage in other work as a small parts 18 19 assembler, hotel housekeeper, or document preparer. T 37. 20 (B) Plaintiff’s Age, Education, and Work History 21 Plaintiff, born 1966, possesses a high school education, having obtained her GED and 22 CNA certification. T 36, 69, 220. Her past relevant work includes employment as a certified 23 nurse assistant, barista, and cashier/clerk. T 65–68, 71–73, 92 (plaintiff’s and VE’s testimony), 24 25 T 220, 280 (work history reports), T 211–14 (wage records). 26 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 3 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 3 of 20 1 (C) Summary of Opinion Evidence & ALJ’s Weighing of Opinion Evidence 2 (1) Opinions from Non-Examining Sources 3 On February 27, 2014, non-examining state agency psychological consultant ("SAPC") 4 5 Dr. Wandal Winn, MD, reviewed Plaintiff’s then submitted medical records and filed a 6 psychiatric review technique ("PRT") and mental RFC assessment ("RFCA"). T 110–12, 116– 7 17. In the PRT, Dr. Winn opined that Plaintiff exhibited mild restriction to ADLs, moderate 8 difficulty in social functioning, mild limitation in CPP, and no periods of decompensation. T 9 110. In the mental RFCA, Dr. Winn assessed several moderate impairments in social 10 11 functioning, CPP, and adaptation, but indicated in her narrative that Plaintiff could engage in 12 "simple tasks" despite CPP being "decreased by anxiety and depressive [symptoms]" and that 13 she could engage in "occasional contacts with the public" with "supervision delivered in a 14 reassuring man[n]er." T 116–117. The ALJ accorded "considerable weight" to Dr. Winn’s 15 assessment. T 33. 16 17 The ALJ properly elected not to weigh the opinion of the SDM, Mrs. Norton, who found 18 Plaintiff capable of a reduced range of light work. T 113–16. 19 On January 4, 2014, a non-examining state agency medical consultant ("SAMC"), Dr. 20 Jay Caldwell, reviewed Plaintiff’s then submitted medical records and filed a physical RFCA. T 21 22 432–39. Caldwell opined Plaintiff could (1) lift and carry 35 pounds occasionally and 10 pounds 23 frequently, (2) stand/walk for 6 of 8 hours in a workday, (3) sit for 6 of 8 hours in a workday, 24 (4) occasionally stoop and climb ladders/scaffolds and frequently crouch (5) frequently reach 25 overhead due to her neck impairment, and (6) should avoid even moderate exposure to vibration. 26 Id. The ALJ accorded "great weight" to Dr. Caldwell’s opinion. T 31. 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 4 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 4 of 20 1 (2) Opinions from Examining Sources 2 On September 16, 2014, Plaintiff underwent psychological consultative examination 3 ("CE") conducted by Dr. Charles P. Morgan, PhD. T 800–02. Dr. Morgan does not indicate 4 5 whether he reviewed any records prior to preparing the CE report, and relies upon Plaintiff’s 6 stated history of treatment. T 800. Plaintiff’s history included kidnapping by her father and 7 sexual molestation by family members and neighbors, leading her to drop out of school and later 8 earn her GED and CNA certificate. T 800–01. He noted that she swims but limited her social 9 life to a single friend, other than her positive relationship with her husband (who suffers from 10 11 leukemia). T 801–02. Dr. Morgan diagnosed generalized anxiety disorder, major depressive 12 disorder (recurrent, mild), assessed a GAF of 55, and noted that she indicated she spends a great 13 deal of time in bed and fails to attend to hygiene. T 802. 14 (3) Opinions from Sources providing Treatment 15 On May 29, 2013, Plaintiff’s treating physical therapist, Mr. Dan Weaver, PT, opined in a 16 17 treatment note that Plaintiff "current functional limitations would prevent gainful employment at 18 this time." T 307. On this day, Mr. Weaver noted the following reduced functioning: (a) 19 reduced range of motion of the cervical spine, (b) decreased right shoulder range of motion, (c) 20 reduced range of motion in the lumbar spine upon bending (only reaching her "mid-tibia") with 21 Mr. Weaver indicating "lumbar extension with moderate to major limitations secondary to pain," 22 23 (d) reduced strength in her upper extremities (4-) and lower extremities (3+) with knee (4-) and 24 ankle (4) also reduced, (e) the inability of Plaintiff, in her mid-forties, to achieve scores normal 25 for 60 year olds in sit to stand and timed up and go tests, and (f) pain and tingling in her legs 26 upon walking for 3 minutes. T 306–07. The ALJ accorded this statement "little weight." T 30. 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 5 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 5 of 20 1 On May 31, 2013, Plaintiff’s treating psychiatrist, Dr. Stephen Brogdon, MD, offered an 2 opinion, contained in a treatment note, that Plaintiff had a "strong case" for both physical and 3 mental disability, that Plaintiff suffered from spondylolisthesis1 in the lumbar spine (see, e.g., T 4 5 321, 472, 655, 658), as well as mood lability, crying for "no reasons," and PTSD that made it 6 "impossible for the patient to support herself financially by working... disability makes the 7 most sense... [to] allow some quality of life." T 343. He notes that her previous treatments 8 have included several psychotropic medications causing her to suffer from agitation and "SSRI 9 induced-mania." Id. He continued to prescribe several psychotropic medications, and diagnosed 10 11 mood disorder (not otherwise specified), rule out bipolar II disorder, PTSD, and generalized 12 anxiety disorder. T 344. The ALJ accorded "some weight" to Dr. Brogdon’s opinion. T 33. 13 On July 30, 2014, following "several hours" spread out over counseling sessions, 14 Plaintiff’s treating social worker, Mrs. Deneise Weyhmiller, MSW, offered her clinical 15 impression summary of Plaintiff. T 665, 703. Mrs. Weyhmiller opined that Plaintiff’s "physical 16 17 18 1 Spondylolisthesis is the "forward displacement (olisthy) of one vertebra over another, usually of the fifth lumbar over the body of the sacrum, or of the fourth lumbar over the fifth, 19 usually due to a developmental defect in the pars interarticularis." Dorland’s Illustrated Medical Dictionary ("Dorland’s"), 32nd ed., 2007, Elsevier Saunders, 1754. Degenerative 20 Spondylolisthesis is "long-standing instability due to progressive degeneration of the spinal 21 joints, usually accompanied by rotation of the affected disk." Id. The displacement of discs may cause compression of nerve endings in the spine causing pain to radiate to the lower extremities. 22 See Spine-Health.com, Spondylolisthesis Symptoms and Causes, available at http://www.spine-23 health.com/video/spondylolisthesis-symptoms-and-causes-video (explanatory video) (last visited April 19, 2017) (Spine-Health.com is a peer reviewed source). 24 Spondylosis is the "ankylosis of a vertebral joint" or "degenerative spinal changes due to 25 osteoarthritis" or, in the cervical spine, "degenerative joint disease affecting the cervical 26 vertebrae, intervertebral disks, and surrounding ligaments and connective tissue, sometimes with pain or paresthesia radiating along the upper limbs as a result of pressure on the nerve roots. 27 Dorland’s at 1754. 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 6 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 6 of 20 1 and emotional pain" impact her "daily functioning on several levels." Id. Mrs. Weyhmiller 2 thought her previous diagnosis of panic disorder with agoraphobia was possibly incorrect and 3 that she truly suffered from "social phobia" because she exhibited "marked and persistent fear of 4 5 one or more social or performance situations with the potential for unfamiliar people or possible 6 scrutiny by others." Id. She apologized excessively for her actions. Id. She also diagnosed 7 PTSD and noted her restricted range of affect and avoidance of sleep issues and other people. Id. 8 The ALJ mentions Mrs. Wyhmiller’s treatment and this assessment but does not explicitly weigh 9 this opinion. T 32. 10 11 (D) Testimony Regarding Plaintiff’s Ability to Work 12 (1) Plaintiff’s Testimony from Both Hearings 13 During the first hearing, Plaintiff initially elected to proceed pro se (T 85), but later 14 revoked that decision orally (T 104) and in writing (T 170–71). Plaintiff raised a general 15 objection to an unidentified document ("page 1") and the ALJ overruled the objection as an 16 17 objection to the "qualifications" or "basis" upon which the opinion of Dr. Winn was formed. T 18 87–89. She then objected to "the information that those professionals were giving [sic] was 19 incorrect." T 89. The ALJ does not attempt to ascertain further details of this objection and 20 simply asks if she has other objections, and Plaintiff states "no, your honor." T 89–90. The ALJ 21 22 then admitted 1A through 9F (T 106–625) into evidence. T 90. 23 Plaintiff testified that she treats with "Denise" (presumably Mrs. Weyhmiller) in person 24 several times per month. T 93–94. Her psychotropic medications have helped her impairments 25 because "before I was crying 20 hours a day and I didn’t want to live." T 95. The ALJ’s 26 questioning caused her to begin crying. T 97. She experiences anxiety anytime she becomes 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 7 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 7 of 20 1 "stressed," including any turmoil or arguments, and feels as though she "is going to explode" 2 when she has an attack. T 101. As for physical impairments, her treating physicians instructed 3 her to exercise, which she does by swimming three to five times per week. T 97. 4 5 As for ADLs, Plaintiff lives with her spouse. T 90. She tried to work around the home 6 just to "get outside." T 97. She plays with her two-year-old granddaughter. T 97–98. Her 7 husband cares for their animals. T 98. She discussed a trip to Arizona and Nevada in 2013, and 8 that her "hip shuts down" requiring her to purchase a cane from a "secondhand store" in Arizona. 9 T 99–100. 10 11 The first hearing concluded when Plaintiff began discussing counseling with Mrs. 12 Weyhmiller and Dr. Brogdon not yet submitted, and the ALJ postponed the hearing for Plaintiff 13 to submit these records. T 103. Plaintiff later submitted those records. T 56. 14 Plaintiff requested that the second hearing be held via telephone, however, that request 15 was denied and Plaintiff attended the hearing in person. T 199. 16 17 At the second hearing, Plaintiff again waived her right to counsel. T 47. She raised two 18 objections to evidence: (1) that a consultative examination report stated she was "without 19 sciatica" and that her sciatica was "definitely involved" in this case, and (2) something about 20 "a[a]n amount of years" regarding Dr. Charles Morgan’s opinion. T 49–50. The ALJ overruled 21 22 both objections indicating the evidence was "coming in" and she would weigh it in accordance 23 with the regulations. Id. She then admitted the entire record (T 106–846) into evidence. T 50. 24 Plaintiff testified that her physical impairments of pain in neck, spine, and shoulders 25 prevented her from working. T 54. She has pain in her hips from standing, and could not use 26 her hands when working as a cashier. T 55–56. She received psychotropic medication 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 8 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 8 of 20 1 (Xanax®/alprazolam, Paxil®/paroxetine), via telemedicine from Sitka. T 57–58, 59–60. The 2 medications help her symptoms but she experiences weight gain as a side effect. T 59. She 3 continues to have anxiety symptoms, including her heart racing, sweating, and shaking. Id. She 4 5 also takes several medications for pain and tingling sensation in extremities, including muscle 6 relaxer Flexeril®, and uses a TENS unit. T 60–61, 62. She continued to treat with Mrs. 7 Weyhmiller every four to six weeks. T 69–70. 8 As for ADLs, she again testified that her husband was responsible for caring for their 9 animals (with the exception of a single cat she saved from dying). T 52. She continues to swim, 10 11 yet "can’t swim like a normal person." T 61. She tries to clean or wash dishes or laundry, but it 12 takes a long time to do so (four hours to wash dishes), so she cleans in "small increments." T 63. 13 As for limitations from her impairments, she cannot lift anything or open jars without her 14 wrists or thumb popping. T 54. She cannot lift more than a half-gallon of water. T 60–61. She 15 experiences pain and tingling and stabbing sensations when she overexerts herself. T 64. 16 17 (2) Testimony from Third Party Witnesses 18 Several of Plaintiff’s friends and family members provided third party witness reports or 19 letters to the Agency, including her spouse Mr. Ron Place (T 226–34, 285–87), who married 20 Plaintiff "at midnight on the Millennium" and has witnessed her deteriorating state; her friend 21 22 Mrs. Glenda Halvorsen (T 278), who witnessed Plaintiff’s difficulty with walking during a trip to 23 Arizona and waking up in the night crying due to pain; and a former work colleague, Mr. 24 Zachary Kelley (T 279), who described a "cycle" of pain she endured at work, and indicated that 25 Plaintiff receives therapeutic value from exercising in a pool. The ALJ considered these 26 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 9 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 9 of 20 1 statements and accorded them all "little weight" due to their inconsistency with other medical 2 records and Plaintiff’s recited ADLs. T 34–35. 3 (3) Vocational Expert Testimony 4 5 The ALJ concluded the hearing with testimony from a VE, Mr. Daniel Labrosse ("VE"). 6 T 70–79, 149, 196. The ALJ asked the VE to assume a hypothetical individual with Plaintiff’s 7 age, education, and work history, and for the first inquiry, the ALJ asked the VE to assume a 8 hypothetical consistent with his RFC finding. T 74. The VE responded that it would preclude 9 Plaintiff’s past work, but that such an individual could engage in other work identified in the 10 11 ALJ’s Step 5 finding. T 75–76. The ALJ’s second hypothetical changed the reaching 12 requirement from frequent to "occasional" and the VE testified that this limitation alone would 13 preclude all of the work previously identified and all work at the sedentary level. T 76–77. 14 III. ARGUMENT 15 1. The ALJ’s residual functional capacity finding was the product of legal error 16 and was unsupported by substantial evidence in several respects. 17 (A) The ALJ fails to articulate "specific and legitimate reasons" for 18 discounting the opinion of Plaintiff’s treating psychiatrist, Dr. Brogdon. 19 SSA Regulations articulate guidelines for considering opinion evidence from treating 20 sources and "generally" accord "more weight" to treating sources due to their "detailed, 21 longitudinal picture" of a claimant’s impairment(s) and "unique perspective" of the medical 22 23 evidence. 20 C.F.R. § 404.1527(c)(2). The Ninth Circuit has construed these regulations to hold 24 that "[w]here the treating doctor’s opinion is not contradicted by another doctor, it may be 25 rejected only for clear and convincing reasons supported by substantial evidence in the record. 26 Even if the treating doctor’s opinion is contradicted by another doctor, the administrative law 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 10 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 10 of 20 1 judge (ALJ) may not reject this opinion without providing specific and legitimate reasons 2 supported by substantial evidence in the record." Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 3 2007) (emphasis added). See also Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995) ("[L]ike 4 5 the opinion of a treating doctor, the opinion of an examining doctor, even if contradicted by 6 another doctor, can only be rejected for specific and legitimate reasons that are supported by 7 substantial evidence in the record.") (emphasis added). Indeed, the Ninth Circuit has indicated 8 that when the ALJ accords less than dispositive weight to a treating doctor because it is 9 contradicted by other evidence, the ALJ may not "simply disregard it" and "[t]he ALJ is required 10 11 to consider the factors" set out in the regulations for weighing opinion evidence. See Ghanim v. 12 Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014). See also Garrison, 759 F. 3d at 1012—13 (An ALJ 13 "errs when he rejects a medical opinion or assigns it little weight while doing nothing more than 14 ignoring it, asserting without explanation that another medical opinion is more persuasive, or 15 criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion."). 16 17 The Ninth Circuit has repeatedly held that an ALJ’s decision is not supported by substantial 18 evidence where he relies upon the assessments of non-examining physicians that have not 19 reviewed the entire record. See Lester, 81 F.3d at 831 ("opinion of a nonexamining physician 20 cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either 21 22 an examining physician or a treating physician."); Treichler v. Comm'r SSA, 775 F.3d 1090, 23 1106, n.8 (9th Cir. 2014) ("the conclusions of the non-treating and non-examining physicians did 24 not create a factual issue that required resolution by the agency") (emphasis added). 25 The SSA guidelines for assessing a claimant’s residual functional capacity require 26 analysis of both severe and non-severe impairments, "[w]e will consider all of your medically 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 11 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 11 of 20 1 determinable impairments of which we are aware, including your medically determinable 2 impairments that are not'severe.’" 20 C.F.R. § 416.945(a)(2). See also Id. at § 416.923. The 3 Commissioner’s rulings have recognized that "[w]hile a'not severe’ impairment(s) standing 4 5 alone may not significantly limit an individual's ability to do basic work activities, it may—when 6 considered with limitations or restrictions due to other impairments—be critical to the outcome 7 of a claim." SSR 96-8p. The Ninth Circuit has emphasized that the ALJ reversibly errs where 8 he fails to account for limitations from even non-severe impairments. See, e.g., Celaya v. Halter, 9 332 F.3d 1177, 1182 (9th Cir. 2003); Hutton v. Astrue, 491 Fed. Appx. 850, 850—51 (9th Cir. 10 11 2012). These rulings are consistent with sister Circuits that have held an ALJ’s failure to 12 consider the "entire constellation of ailments – including those impairments that in isolation are 13 not severe" is reversible error. Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003) 14 In this case, the ALJ identified Dr. Brogdon as Plaintiff’s "treating source" whose 15 opinion was only entitled to "some weight." T 33. For the reasons that follow, the ALJ’s 16 17 analysis fails to articulate "specific and legitimate reasons" in support of the ALJ’s determination 18 and thereby erred. See Orn, 495 F.3d at 632; Lester, 81 F.3d at 830–31. 19 First, the ALJ utterly fails to engage in any analysis of the factors for considering opinion 20 evidence from treating sources (20 C.F.R. § 404.1527(c)(1)–(6)) and thereby errs. See Ghanim, 21 22 763 F.3d at 1161. Had the ALJ considered any of the factors, she would have at least determined 23 that Dr. Brogdon was not simply a "treating source" but a psychiatrist, as identified in the 24 records (T 330 ("our psychiatrist")) and as required under the regulations (20 C.F.R. § 25 404.1527(c)(5)). Moreover, she would have more fully credited Dr. Brogdon’s opinion on the 26 basis that it derived from his treatment of her (20 CFR § 404.1527(c)(2)(i)&(ii)), including 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 12 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 12 of 20 1 prescriptions for psychotropic medications, and treatment notes codifying her complete 2 psychological and pain profile over several years (T 333–34), OCD traits (T 334), PTSD and 3 flashback due to sexual abuse (T 335), depressed mood and affect (T 344). Finally, the ALJ 4 5 should have considered that multiple references were made by other treatment sources to Dr. 6 Brogdon’s treatment (T 303, 307), deferring to his psychiatric treatment (T 331, 339, 340, 353) 7 for her "very, very emotional state" (T 308, 618), and thereby causing her psychiatric care to 8 intersect at Dr. Brogdon, who was in the best position to determine Plaintiff’s ability to work. 20 9 C.F.R. § 404.1527(c)(6). The ALJ even fails to recognize that her care with Dr. Brogdon only 10 11 concluded because he retired or left the practice, leaving Plaintiff without psychiatric care or 12 counseling. T 674. The ALJ instead finds that Plaintiff did not seek "additional treatment for 13 her mental impairments" from July 2013 through April 2014, a finding unsupported by 14 substantial evidence. T 31. The ALJ’s failure to recognize Dr. Brogdon as Plaintiff’s 15 psychiatrist and not merely a "treating source" warrants remand. See generally Garrison, 759 F. 16 17 3d at 1012—13 ("assigns [treating physician] little weight while doing nothing more than 18 ignoring it, asserting without explanation that another medical opinion is more persuasive, or 19 criticizing it with boilerplate language"). 20 Second, the ALJ’s purported assignment of "some weight" to Dr. Brogdon’s opinion 21 22 makes little sense, given that ALJ does not credit any portion of the opinion and simply employs 23 boilerplate language to criticize the opinion as offering no "specific limitation" but that it 24 constituted an "opinion on an issue reserved to the Commissioner." T 33. The ALJ’s boilerplate 25 recitations leave this Court without an adequate basis for discounting the opinion. See generally 26 Garrison, 759 F. 3d at 1012—13; Macri v. Chater, 93 F.3d 540, 545 (9th Cir. 1996) (The ALJ’s 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 13 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 13 of 20 1 failure to comment on any of this evidence "leaves [the] court with a record insufficient for a 2 meaningful appellate review."). Moreover, the Ninth Circuit has rejected the notion that an 3 opinion is on an issue "reserved to the Commissioner" simply because it asserts that the claimant 4 5 is incapable of work. See Hill v. Astrue, 688 F.3d 1144, 1150–51 (9th Cir. 2012) (statement that 6 claimant was "unlikely" to work constituted an opinion the Commissioner could not brush aside 7 as an "opinion on an issue reserved to the Commissioner"). 8 Finally, the ALJ offers a treatment note that Plaintiff had become "stable" on 9 psychotropic medications in July 2014 as evidence "improvement" in Plaintiff’s condition since 10 11 the time of Dr. Brogdon’s opinion. T 33 (citing T 735, 815). First, given that Dr. Brogdon’s 12 opinion occurred more than a year prior, in May 2013, the ALJ utterly fails to consider that 13 Plaintiff would have been entitled to at least a closed period of benefits in the time it took for her 14 condition to "improve," and errs by failing to conduct the requisite analysis for such a finding. 15 See generally Attmore v. Colvin, 827 F.3d 872, 876 (9th Cir. 2016) (evaluating closed period 16 17 cases). Indeed, notes in the intervening period, from April and May 2014, indicate that her 18 medications had to be tuned and re-tuned during this time and she was unstable in thought. T 19 680 (Paxil not working well), T 738 ("speech is rapid, her mood is unstable, and her affect is 20 blunted" with OCD tendencies), T 739, 742 (Mrs. Weyhmiller notes she should continue therapy 21 22 until she becomes "emotionally stable"). Second, the note that she has become "stable" on 23 medications derived from a family practitioner, Dr. Ellen Kamper, who was principally 24 concerned with treating her unremitting pain, and, therefore, does not constitute substantial 25 evidence contradicting Dr. Brogdon’s prior assessment. T 735, 815. Moreover, the indication 26 that someone has become stabilized on medication does not mean she has the ability to work, 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 14 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 14 of 20 1 and the ALJ apparently conflates the two concepts here. See generally Solomon v. Astrue, No. 2 2:10-CV-01548-RBL, 2011 WL 4368337, at *9 (W.D. Wash. Aug. 26, 2011), report and 3 recommendation adopted, No. 2:10-CV-01548 RBL, 2011 WL 4368725 (W.D. Wash. Sept. 19, 4 5 2011) ("stable and well controlled with medication during treatment does not necessarily support 6 the medical conclusion that the patient can return to work’") (quoting Brownawell v. Astrue, 554 7 F.3d 352, 356 (3d Cir. 2008)). Finally, subsequent notes from Dr. Kamper paint an even 8 murkier picture, indicating that her depression was "still an issue but stable." T 823. 9 In this case, the ALJ makes no mention of Plaintiff’s spondylolisthesis in the lower back, 10 11 yet repeatedly refers to her "spondylosis" without referencing that the condition affected her 12 cervical spine. T 23. The ALJ’s failure to find Plaintiff’s spondylolisthesis of the lumbosacral 13 spine, supported by medical imaging in 2008 (T 655), 2012 (T 321, 472 "a grade 2 anterior 14 spondylolisthesis of L5 relative to 1 with narrowing of the LS5-SI disk level") and contained in 15 other physician reports (T 324), constituted harmful, reversible error in that the ALJ failed to 16 17 consider the complete constellation of impairments, severe and non-severe, when formulating the 18 RFC. See Celaya, 332 F.3d at 1182; Golembiewski, 322 F.3d at 918. The ALJ appears to 19 conflate Plaintiff’s cervical spondylosis with her lumbosacral spondylolisthesis, despite the two 20 having very distinct impairments and limitations. Supra Section (II)(C)(3), n.1. Nowhere is the 21 22 harmfulness of this error more apparent that when the ALJ discounts the opinion of treating 23 psychiatrist, Dr. Brogdon, who explicitly mentions her spondylolisthesis as one of many 24 comorbidities or nonexertional limitations (including pain) contributing to her disability. T 343. 25 For the foregoing reasons, the ALJ discounting the opinion of treating psychiatrist Dr. 26 Brogdon failed to articulate "specific and legitimate" reasons for discounting that opinion and 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 15 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 15 of 20 1 thereby reversibly erred. Orn, 495 F.3d at 632; Lester, 81 F.3d at 830–31. 2 (B) The ALJ fails to articulate germane reasons for discounting the opinions 3 of sources providing treatment that were not medically acceptable sources under the regulations. 4 "‘The ALJ may discount testimony from [] other sources if the ALJ gives reasons 5 6 germane to each witness for doing so.’" Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016) 7 (quoting Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)). However, as with all other 8 findings, the ALJ’s rejection of these opinions must be supported by substantial evidence. SSR 9 06-03p required the ALJ to consider many of the same factors outlined in 20 C.F.R. §§ 10 404.1527(c) and 416.927(c) for assessing opinions. 11 12 In this case, the ALJ mentions but does not explicitly weigh the opinion of long-term 13 counselor and social worker, Mrs. Deneise Weyhmiller, MSW. Supra Section (II)(C)(3). Mrs. 14 Weyhmiller’s clinical impression constituted an opinion the ALJ was obligated to weigh under 15 her own rulings. SSR 06-03p. Mrs. Weyhmiller’s determination that Plaintiff exhibited "marked 16 17 and persistent fear of one or more social or performance situations with the potential for 18 unfamiliar people or possible scrutiny by others" was inconsistent with the RFC that found her 19 capable of at least "superficial" interaction with both the public and co-workers. T 26. The ALJ 20 harmfully erred in failing to articulate any reason, germane or otherwise, for impliedly 21 discrediting Mrs. Weyhmiller’s opinion. Dodrill v. Shalala, 12 F.3d 915, 918–19 (9th Cir.2003). 22 23 The ALJ does explicitly weigh the opinion of another source, Plaintiff’s treating physical 24 therapist, Mr. Dan Weaver. Supra Section (II)(C)(3). However, in according it "little weight," 25 the ALJ offers only that it was an opinion on an "issue reserved to the Commissioner" deriving 26 from an unacceptable source under the regulations and inconsistent with "diagnostic evidence, 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 16 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 16 of 20 1 including the MRI’s of the claimant cervical and lumbar spine." The ALJ fails to examine Mr. 2 Weaver’s examination notes from that date that fully support his opinion (SSR 06-03p) with 3 reduced muscle strength and range of motion throughout Plaintiff’s extremities. Supra Section 4 5 (II)(C)(3). Moreover, the ALJ’s boilerplate recitation that Mr. Weaver is not an acceptable 6 source is not a germane reason for discounting his opinion. See Alcantara v. Astrue, 257 Fed. 7 Appx. 333, 334—35 (1st Cir. 2007) (weighing other source opinions). Furthermore, as managed 8 care attempts to curtail healthcare costs in our modern healthcare economy, greater emphasis is 9 placed on care from non-acceptable sources, such as Mr. Weaver, making their opinions more 10 11 important in the disability analysis. See generally Garcia v. Astrue, No. 1:10-CV-00542-SKO, 12 2011 WL 3875483, at *16 (E.D. Cal. Sept. 1, 2011) (remanding where ALJ rejected treatment 13 from physician’s assistant simply because she was not an "acceptable medical source" and citing 14 SSR 06-03p). Finally, the ALJ does note that Plaintiff has undergone imaging yet fails to 15 explain how that imaging, which revealed evidence of cervical spondylosis and lumbosacral 16 17 spondylolisthesis was in any way inconsistent with Mr. Weaver’s report, and therefore failed to 18 articulate "germane" reasons for discounting his opinion. Dale, 823 F.3d at 943 (quoting 19 Molina, 674 F.3d at 1111). 20 (C) The ALJ failed to fully and fairly develop the record despite Plaintiff 21 representing herself pro se during the hearing. 22 The disability application process is a non-adversarial, fact gathering administrative 23 procedure, and the ALJ and Plaintiff share in the burden to develop the record. See Tackett v. 24 Apfel, 180 F.3d 1094, 1098 n.3 (9th Cir. 1999) (noting non-adversarial nature of disability 25 26 process and that the ALJ and claimant share in the burden of developing the record). The ALJ’s 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 17 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 17 of 20 1 duty to develop the record exists even when the claimant is represented by counsel. DeLorme v. 2 Sullivan, 924 F.2d 841, 849 (9th Cir 1991) (citing Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 3 1983)). This duty is elevated where the claimant is unrepresented by counsel. Id. See also 4 5 Celaya v. Halter, 332 F.3d 1177, 1184 (9th Cir. 2003); Struck v. Astrue, 247 Fed. Appx. 84, 86 6 (9th Cir. 2007). The Ninth Circuit has remanded where the ALJ has failed to request medical 7 source statements from treating sources. Lewis v. Comm'r SSA, 293 Fed. Appx. 495, 496 (9th 8 Cir. 2008). 9 In this case, the ALJ rested the physical RFC upon the non-examining SAMC’s opinion, 10 11 Dr. Caldwell (supra Section (II)(C)(1)), who did not benefit from reviewing half of the medical 12 records, which were submitted by Plaintiff following her first hearing (supra Section (II)(D)(1)). 13 While the ALJ does order a psychiatric CE, she does not appear to have sought a medical source 14 statement from any treating source, nor does she send Plaintiff for a physical CE, despite 15 Plaintiff suffering spondylolisthesis (ignored in the ALJ’s decision), severe cervical spondylosis 16 17 with several sources noting limitation in her impairments as a result. Supra Section (II)(C) 18 (summarizing opinion evidence). The ALJ reversibly erred in failing to live up to her heightened 19 duty to assist this unrepresented claimant (DeLorme, 924 F.2d at 849; Celaya, 332 F.3d at 1184; 20 Struck, 247 Fed. Appx. at 86) by seeking a medical source statement regarding her physical 21 22 impairments (Lewis, 293 Fed. Appx. at 496), or ordering a physical CE (Reed v. Massanari, 270 23 F.3d 838, 842 (9th Cir. 2001) (ALJ remanded despite "broad latitude" in ordering CE reports). 24 Finally, Plaintiff, again, unassisted by counsel, attempted to articulate objections to 25 medical evidence that apparently failed to reflect an accurate accounting of her history of several 26 comorbidities. Supra Section (II)(D)(1). The ALJ does not provide any meaningful assistance to 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 18 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 18 of 20 1 Plaintiff in articulating these objections, and summarily rejects them before, in most instances, 2 Plaintiff can even describe her objections to the evidence. Id. Due to the fact-gathering, non-3 adversarial nature of the administrative process (Tackett, 180 F.3d at 1098 n.3), the ALJ failed in 4 5 her obligation to permit Plaintiff the chance to articulate her objections to evidence, thereby 6 depriving her of the opportunity to be meaningfully heard and this Court should remand this case 7 to afford such an opportunity in the first instance. 8 IV. CONCLUSION 9 For the foregoing reasons, it is respectfully requested that this Court remand this matter 10 11 for payment of benefits, or, in the alternative, for further administrative proceedings, including 12 de novo hearing and decision. 13 14 Date: April 19, 2017 Respectfully submitted, 15/s/Paul Eaglin 16 Paul Eaglin, Esq. Alaska Bar #9304010 17 Olinsky Law Group 18 300 South State Street Syracuse, New York 13202 19 Phone: (315) 701-5780 PBE/nvr peaglin@windisability.com 20 21 22 23 24 25 26 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 19 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 19 of 20 1 CERTIFICATE OF SERVICE 2 3 This is to certify that I have this day served counsel for the Defendant with Plaintiff’s Opening Brief by filing the foregoing on the Court’s ECF system, which sent electronic notice to the 4 following recipients: 5 6 MICHAEL HOWARD Special Assistant United States Attorney 7 Office of the General Counsel 8 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 9 Seattle, WA 98104-7075 Telephone: 206-437-0928 10 Fax: (206) 615-2531 11 Michael.Howard@ssa.gov 12 This 19th day of April, 2017. 13 14/s/Paul Eaglin 15 Paul Eaglin, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 Opening Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 20 Case 1:16-cv-00020-RRB Document 13 Filed 04/19/17 Page 20 of 20

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--2318836.) by Jeanette Lee Place.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA JEANETTE LEE PLACE, Case No. 1:16-cv-00020-RRB Plaintiff(s), MOTION AND APPLICATION OF vs. NON-ELIGIBLE ATTORNEY FOR NANCY A. BERRYHILL, PERMISSION TO APPEAR AND Acting Commissioner of Social Security, PARTICIPATE IN THE UNITED STATES DISTRICT COURT Defendant(s). FOR THE DISTRICT OF ALASKA To the Honorable Judge of the above-entitled court: I, Howard D. Olinsky, hereby apply for permission to appear and (name) participate as counsel for Jeanette Lee Place, 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 1:16-cv-00020-RRB 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 1:16-cv-00020-RRB 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 1:16-cv-00020-RRB 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 1:16-cv-00020-RRB Document 14 Filed 04/20/17 Page 4 of 4

1 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 1:16-cv-00020-RRB Document 14-1 Filed 04/20/17 Page 1 of 1

MOTION for Extension of Time to File Response/Reply Unopposed by Nancy A. Berryhill.

1 BRYAN SCHRODER 2 United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 MICHAEL HOWARD 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: 206-437-0928 Fax: (206) 615-2531 11 Michael.Howard@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT 14 FOR THE DISTRICT OF ALASKA 15 16 JEANETTE LEE PLACE, Case No. 1:16-cv-00020-RRB 17 Plaintiff, UNOPPOSED MOTION TO AMEND 18 vs. THE SCHEDULING ORDER 19 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 20 Defendant. 21 Defendant hereby moves, with no opposition from Plaintiff’s counsel, that the scheduling 22 Order should be amended as follows for the reasons noted in the Declaration of Michael Howard: 23  Defendant shall file a response to Plaintiff’s Motion on or before June 2, 2017; and 24 Page 1 UNOPPOSED MOTION TO AMEND THE SCHEDULING ORDER-[1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 16 Filed 05/24/17 Page 1 of 2 1  Plaintiff shall file the optional Reply on or before June 16, 2017, 2017. 2 DATED this 24th day of May 2017. 3 Respectfully submitted, 4 Bryan Schroder 5 United States Attorney 6 RICHARD L. POMEROY Assistant United States Attorney 7 MATHEW W. PILE 8 Acting Regional Chief Counsel, Seattle, Region X 9 s/Michael Howard MICHAEL HOWARD 10 Special Assistant United States Attorney Office of the General Counsel 11 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 12 Seattle, WA 98104-7075 Telephone: 206-437-0928 13 Fax: (206) 615-2531 Michael.Howard@ssa.gov 14 CERTIFICATE OF SERVICE 15 I hereby certify that the foregoing Defendant’s Motion to Amend the Scheduling Order 16 and attached proposed Order were filed with the Clerk of the Court on May 24, 2017, using the 17 CM/ECF system, which will send notification of such filing to the following: Howard D. Olinsky 18 and Paul B. Eaglin. 19 20 s/Timothy Shaw TIMOTHY SHAW 21 Paralegal Specialist Office of the General Counsel 22 23 24 Page 2 UNOPPOSED MOTION TO AMEND THE SCHEDULING ORDER-[1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 16 Filed 05/24/17 Page 2 of 2

Proposed Order

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT FOR THE 8 DISTRICT OF ALASKA 9 JEANETTE LEE PLACE, Civil No. 1:16-cv-00020-RRB 10 Plaintiff, 11 vs. PROPOSED ORDER AMENDING THE SCHEDULING ORDER 12 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 13 Defendant. 14 Based on Defendant’s Motion, and that Plaintiff has no opposition, it is hereby 15 ORDERED that the Scheduling Order shall be amended as follows: 16 • Defendant shall have up to and including June 2, 2017, to file Defendant’s Response; and 17 • Plaintiff shall have up to and including June 16, 2017, to file a Reply brief. 18 DATED this _____ day of, 2017. 19 ___________________________________ 20 UNITED STATES DISTRICT JUDGE 21 22 23 Page 1 PROPOSED ORDER AMENDING THE SCHEDULING ORDER-[1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 16-1 Filed 05/24/17 Page 1 of 2 1 Presented by: 2 s/Michael Howard 3 MICHAEL HOWARD Special Assistant U.S. Attorney 4 Office of the General Counsel Social Security Administration 5 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 6 Telephone: 206-437-0928 Fax: (206) 615-2531 7 Michael.Howard@ssa.gov 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Page 2 PROPOSED ORDER AMENDING THE SCHEDULING ORDER-[1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 16-1 Filed 05/24/17 Page 2 of 2

DECLARATION of Michael Howard re {{16}} MOTION for Extension of Time to File Response/Reply Unopposed by Nancy A. Berryhill.

1 Bryan Schroder 2 United States Attorney Richard L. Pomeroy 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 richard.pomeroy@usdoj.gov 6 MICHAEL HOWARD 7 Special Assistant U.S. Attorney Office of the General Counsel 8 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 9 Seattle, WA 98104-7075 Telephone: 206-437-0928 10 Fax: (206) 615-2531 Michael.Howard@ssa.gov 11 Of Attorneys for Defendant 12 IN THE UNITED STATES DISTRICT COURT 13 FOR THE DISTRICT OF ALASKA 14 15 JEANETTE LEE PLACE, Case No. 1:16-cv-00020-RRB 16 Plaintiff 17 vs. DECLARATION OF MICHAEL HOWARD 18 NANCY A. BERRYHILL, Acting Commissioner of Social Security 19 Defendant 20 I, Michael S. Howard, declare as follows: 21 1. I am an Assistant Regional Counsel with the Social Security Administration (the agency), 22 Office of the General Counsel, in Seattle, Washington, and counsel for the Commissioner 23 24 Page 1 DECLARATION OF MICHAEL HOWARD – [1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 17 Filed 05/24/17 Page 1 of 3 1 in the above-captioned case. I make this Declaration in support of the Commissioner’s 2 Agreed Motion for Extension of Time to file her brief. 3 2. The responsive brief in this matter was due May 19, 2017. Plaintiff filed her brief on 4 April 19, 2017 after the Court granted an extension of time. 5 3. To my regret, I have overlooked the deadline for the responsive brief. Plaintiff’s counsel, 6 Mr. Olinsky, alerted me to this issue in an example of great professionalism. 7 4. I apologize for overlooking this deadline. I keep track of such deadlines using multiple 8 methods, including my own Outlook Calendar, a calendar maintained by our office staff, 9 and our office’s docketing system. It is uncommon for a deadline to escape these 10 redundant systems. 11 5. I am requesting a 14 day extension of time for the responsive brief in this case, from May 12 19, 2017, the day it was due. The responsive brief would then be due on June 2, 2017. 13 Plaintiff’s counsel indicated no objection to Defendant’s Motion for Extension of Time. 14 Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true 15 and correct. 16 Executed this 24th day of May 2017. 17 By: s/Michael Howard MICHAEL HOWARD 18 Special Assistant U.S. Attorney 19 20 21 22 23 24 Page 2 DECLARATION OF MICHAEL HOWARD – [1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 17 Filed 05/24/17 Page 2 of 3 1 2 CERTIFICATE OF SERVICE 3 I hereby certify that the foregoing Declaration of Michael Howard was filed with the 4 Clerk of the Court on May 24, 2017, using the CM/ECF system which will send notification of 5 such filing to the following: Howard D. Olinsky and Paul B. Eaglin. 6 s/Timothy Shaw 7 TIMOTHY SHAW Paralegal Specialist 8 Office of the General Counsel 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 3 DECLARATION OF MICHAEL HOWARD – [1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 17 Filed 05/24/17 Page 3 of 3

RESPONSE in Opposition re [13] MOTION to Remand to Social Security 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 MICHAEL HOWARD 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 Telephone206-437-0928 Fax(206) 615-2531 11 Michael.Howard@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 JEANETTE LEE PLACE, Case No. 1:16-cv-00020-RRB 16 Plaintiff, 17 vs. DEFENDANT’S BRIEF 18 NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. 21 INTRODUCTION 22 Plaintiff seeks judicial review of the Acting Commissioner of Social Security’s denial of 23 his application for Disability Insurance Benefits under Title II of the Social Security Act, 24 Page 1 DEFENDANT’S BRIEF-[1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 19 Filed 06/01/17 Page 1 of 10 1 42 U.S.C. § 401 et seq. The Commissioner disputes that any error occurred, and even if an error 2 occurred, the Commissioner disputes that Plaintiff has met her burden to show that it resulted in 3 any harm. 4 BACKGROUND 5 The Commissioner does not object to Plaintiff’s summary of the procedural history of this 6 case and the ALJ’s findings (Pl.’s Br. 2-3). Relevant medical and testimonial evidence will be 7 discussed in the argument section below. 8 STANDARD OF REVIEW 9 This Court reviews the ALJ’s decision denying benefits for substantial evidence; the 10 decision will be disturbed only if it is not supported by substantial evidence or based on legal 11 error. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). Substantial evidence is more than a 12 scintilla but less than a preponderance. Id. at 1110-11. It is "‘such relevant evidence as a 13 reasonable mind might accept as adequate to support a conclusion.’" Id. at 1110 (quoting 14 Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). Where the 15 evidence is susceptible to more than one rational interpretation, the ALJ’s interpretation must be 16 upheld. Id. at 1111. 17 Even if the ALJ has erred, a court should affirm the decision so long as the error is 18 harmless. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). An error is harmless if it is 19 inconsequential to the ultimate nondisability determination. Id. The burden of showing harm 20 falls on the party attacking the determination. Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 21///22///23 24 Page 2 DEFENDANT’S BRIEF-[1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 19 Filed 06/01/17 Page 2 of 10 1 ARGUMENT 2 I. A reasonable person could agree that Dr. Brogdon’s opinions deserved little weight. 3 If a treating source opinion is well-supported by medically acceptable clinical and 4 laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in a 5 claimant’s case record, the ALJ will give it controlling weight. 20 C.F.R. § 404.1527(c)(2). If 6 the ALJ does give the opinion controlling weight, he should give "good reasons" for the 7 remaining weight given to the opinion. 20 C.F.R. § 404.1527(d)(2); see Bayliss, 427 F.3d at 1216 8 (requiring "specific and legitimate" reasons to reject the opinion of a treating physician when it is 9 contradicted by other opinions in the record). 10 Dr. Brogdon served as Plaintiff’s treating psychiatrist. He stated on more than one 11 occasion that Plaintiff was disabled due to her physical and mental conditions (Tr. 321, 472, 655, 12 658). He described Plaintiff crying and having variable moods, which would make her unable to 13 work (Tr. 343). 14 The ALJ reasonably gave these opinions only "some weight" (Tr. 33). The ALJ 15 acknowledged that Dr. Brogdon was Plaintiff’s treating source (Tr. 33). However, this did not 16 mean that Dr. Brogdon’s opinion determined the outcome of the case. "Although a treating 17 physician’s opinion is generally afforded the greatest weight in disability cases, it is not binding 18 on an ALJ with respect to the existence of an impairment or the ultimate issue of disability." 19 McLeod v. Astrue, 640 F.3d 881, 884-85 (9th Cir. 2011) (internal quotation marks omitted). 20 As the ALJ correctly observed, the issue of whether an individual is "disabled" is reserved 21 to the Commissioner (Tr. 33). Dr. Brogdon’s comments on this issue could not be given any 22 special significance. 20 C.F.R. § 404.1527(d). 23 24 Page 3 DEFENDANT’S BRIEF-[1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 19 Filed 06/01/17 Page 3 of 10 1 The ALJ then gave reasons to question Dr. Brogdon’s general claims about Plaintiff’s 2 mental and physical impairments. Regarding her mental impairments, the ALJ explained that the 3 doctor did "not account for the claimant’s noted improvement, including Dr. Kemper’s note from 4 July 2014 that the claimant’s depression was stable on Paxil and prazosin and her anxiety was 5 stable on Xanax" (Tr. 33 (citing Tr. 578)). This finding was supported by substantial evidence. 6 Treatment records showed that while Plaintiff continued to have symptoms of anxiety and 7 depression, medications such as Wellbutrin, an antidepressant, helped her significantly (Tr. 341). 8 In 2014, clinic staff said again that Plaintiff’s anxiety was moderately controlled on medication 9 and that she would benefit from continuing counseling (Tr. 755). Later in 2014, Plaintiff said that 10 despite some continued difficulties, she was able to care for her granddaughter five days a week 11 and go to the swimming pool (Tr. 789). A reasonable person could therefore agree that Dr. 12 Brogdon’s opinions were less persuasive given the evidence of improvement in Plaintiff’s mental 13 health. 20 C.F.R. § 404.1527(c)(4) ("Generally, the more consistent an opinion is with the record 14 as a whole, the more weight we will give that opinion."). 15 With regards to Plaintiff’s physical impairments, chiefly her neck and back pain, the ALJ 16 observed that Dr. Brogdon relied heavily on the opinion of a physical therapist, Mr. Weaver (Tr. 17 33). Yet Mr. Weaver’s opinion itself deserved little weight (Tr. 30). As the ALJ explained, Mr. 18 Weaver initially claimed that Plaintiff was disabled, but later treatment notes and examinations 19 showed that her conditions were not as limiting (Tr. 30). Once Plaintiff was prescribed the 20 medication Gabapentin, she said this cut her pain level significantly (Tr. 578). She also benefited 21 from cervical traction and exercise (Tr. 579). And by 2014, Plaintiff walked normally, had 22 normal range of motion, and rated her pain as only a three on a scale of zero to 10 (Tr. 579, 813). 23 While later records showed some limited range of motion, they described Plaintiff caring for her 24 Page 4 DEFENDANT’S BRIEF-[1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 19 Filed 06/01/17 Page 4 of 10 1 granddaughter and participating more in household chores (Tr. 701, 829). These records 2 detracted from Dr. Brogdon’s claim that Plaintiff was disabled due to her physical condition. 3 Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) ("The ALJ need not accept the opinion of 4 any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately 5 supported by clinical findings." (internal quotation marks omitted)). It was reasonable for the 6 ALJ to instead find Plaintiff capable of a range of light work (Tr. 26). 7 In sum, Plaintiff gave valid reasons to discount Dr. Brogdon’s opinions. Plaintiff is wrong 8 to suggest that the ALJ did not weigh any of the applicable factors from 20 C.F.R. § 404.1527. 9 And she is wrong to suggest that the assignment of "some weight" rendered the ALJ’s opinion 10 unclear. From the context of the ALJ’s discussion, it is apparent that the ALJ did not agree with 11 Dr. Brogdon’s assertions that his patient was disabled, but instead found Plaintiff capable of a 12 limited range of light work. 13 In the context of challenging Dr. Brogdon’s opinion, Plaintiff also argues that the ALJ 14 overlooked the spondylolisthesis in her lower back (Pl.’s Br. 15). She suggests that the ALJ only 15 accounted for this degenerative finding in her neck. This is incorrect. At more than one point in 16 the decision, the ALJ discussed Plaintiff’s complaints of lower back pain, in addition to neck 17 pain, and the ALJ discussed the examination findings pertaining to Plaintiff’s lower back (e.g. Tr. 18 29 (discussing Dr. Trimble’s neurological examination of the lower back)). These findings did 19 not establish that Plaintiff met any listed impairment (Tr. 25) and instead showed that, as a 20 general matter, Plaintiff’s condition responded to treatment (Tr. 30). Therefore, Plaintiff does not 21 show that the ALJ overlooked any material aspect of her condition when determining her ability 22 to work. This issue is similar to Burch v. Barnhart, where the court found that any error in 23 24 Page 5 DEFENDANT’S BRIEF-[1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 19 Filed 06/01/17 Page 5 of 10 1 evaluating obesity at step two was harmless, when the ALJ sufficiently considered the condition 2 at later stages of the sequential evaluation process. 400 F.3d 676, 682-83 (9th Cir. 2005). 3 II. The ALJ gave valid reasons to discount the opinions from Plaintiff’s nurse 4 practitioner and counselor. 5 The ALJ was within her discretion to consider, but ultimately reject, the opinions of other 6 healthcare providers who supported Plaintiff’s disability claim. ALJs should generally address 7 such lay witness statements in the decision. See SSR 06-03p, 2006 WL 2329939, at *6. An ALJ 8 may discount the opinion of an "other source," such as a nurse practitioner or social worker, by 9 providing germane reasons. Molina, 674 F.3d at 1111. 10 Ms. Weyhmiller, a social worker, saw Plaintiff in 2014 (Tr. 664). She said that Plaintiff 11 had significant symptoms of anxiety and suggested that she had a social phobia, with "marked 12 and persistent fear" of performing around or being evaluated by unfamiliar people (Tr. 665, see 13 also Tr. 703 (duplicative)). 14 Despite what Plaintiff suggests, the ALJ sufficiently discussed Ms. Weyhmiller’s 15 comments in her treatment note. The ALJ first discussed Ms. Weyhmiller’s treatment notes when 16 summarizing the evidence (Tr. 33). She then discussed Ms. Weymiller’s assignment of a Global 17 Assessment of Functioning (GAF) score of 50 (Tr. 33-34). The ALJ generally explained that this 18 GAF score was generally consistent with Plaintiff’s social difficulties (Tr. 34). Indeed, the ALJ 19 went on to limit Plaintiff to "low stress" work that required only superficial interaction with the 20 public and coworkers (Tr. 26). 21 This was a reasonable assessment of the evidence. "GAF scores, standing alone, do not 22 control determinations of whether a person’s mental impairments rise to the level of a disability 23 (or interact with physical impairments to create a disability)." Garrison v. Colvin, 759 F.3d 995, 24 Page 6 DEFENDANT’S BRIEF-[1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 19 Filed 06/01/17 Page 6 of 10 1 1003 n.4 (9th Cir. 2014); see also Gutierrez v. Astrue, No. 12-cv-1390-MEJ, 2013 WL 2468344, 2 at *19 (N.D. Cal. June 7, 2013) ("A GAF score of 50 does not necessarily establish an 3 impairment seriously interfering with the claimant’s ability to perform basic work activities."). 4 Nevertheless, the ALJ considered Ms. Weyhmiller’s comments and found them consistent with 5 the residual functional capacity finding. The Court should defer to these factual findings. The 6 distinction between an ALJ’s intention to reject evidence, or interpret and account for evidence, 7 "is procedurally significant" because of the highly deferential standard applied to an ALJ’s 8 interpretation of the evidence. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). 9 Plaintiff also raises the opinion from her physical therapist, Mr. Weaver (Pl.’s Br. 5). In 10 2013, Mr. Weaver commented that Plaintiff’s symptoms would "prevent gainful employment at 11 this time" (Tr. 307). 12 As discussed above, the ALJ found that Mr. Weaver’s opinion was undermined by later 13 treatment notes, showing that Plaintiff’s pain responded to medication (Tr. 30, see, e.g., Tr. 578). 14 Plaintiff became more functional and was able to watch her grandchildren with the help of her 15 husband (e.g. Tr. 701). 16 The ALJ therefore gave germane reasons to reject Mr. Weaver’s opinion. It was 17 appropriate for the ALJ to also note that Mr. Weaver was giving an opinion on an issue reserved 18 to the Commissioner. 20 C.F.R. § 404.1527(d). And it was appropriate for the ALJ to observe 19 that Mr. Weaver was not an acceptable medical source. The agency has recognized that 20 acceptable medical sources are the "most qualified" healthcare professionals. SSR 06-03p, 21 available at 2006 WL 2329939, at *5. 22///23///24 Page 7 DEFENDANT’S BRIEF-[1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 19 Filed 06/01/17 Page 7 of 10 1 III. The ALJ took reasonable steps to develop the record, and she was not required to do 2 more. 3 As a general matter, the ALJ has broad latitude in deciding to further develop the record. 4 20 C.F.R. § 404.1520b (describing when agency will further develop record, including 5 recontacting treating sources and ordering a consultative examination). The ALJ here was not 6 required to take any additional action, even if doing so would have been in the ALJ’s discretion. 7 See id. 8 While Plaintiff was unrepresented at the administrative hearings, the ALJ took sufficient 9 steps to develop the record. Plaintiff indicated at the end of the first administrative hearing in 10 2014 that she wanted more time to submit records from healthcare providers (Tr. 104). The ALJ 11 agreed to give her this time to submit the records and to try to obtain representation (Tr. 104). 12 The ALJ also indicated a psychological examination would be ordered (Tr. 103), which did in 13 fact take place (Tr. 800). The ALJ then held the second hearing in 2015 (Tr. 44). Plaintiff should 14 be hard-pressed to argue that the ALJ should have done more to develop the record. There was 15 no indication that the record was insufficient for the ALJ to come to a decision. See 20 C.F.R. § 16 404.1520b. 17 Plaintiff also suggests that the ALJ should have ruled differently on her objections to the 18 evidence or somehow helped her articulate these objections (Pl.’s Br. 18-19). This is not 19 persuasive. Plaintiff objected to some of the medical records at the first administrative hearing, 20 saying that some of the information was incorrect (Tr. 87). However, the ALJ explained that 21 "[j]ust because you believe that it’s incorrect doesn’t mean that it was[n’t] recorded properly..." 22 (Tr. 87). The ALJ explained that she was admitting the evidence into the record so that "we can 23 discuss them at today’s hearing. That’s all I am talking about" (Tr. 87). These were appropriate 24 Page 8 DEFENDANT’S BRIEF-[1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 19 Filed 06/01/17 Page 8 of 10 1 and considered explanations from the ALJ. They reflected the nonadversarial nature of Social 2 Security hearings, where formal rules of evidence do not apply. 3 CONCLUSION 4 The Court should affirm the agency’s final decision, because it is supported by substantial 5 evidence and free of any harmful legal error. 42 U.S.C. § 405(g). 6 DATED this 1st day of June 2017. 7 Respectfully submitted, 8 BRYAN SCHRODER 9 Acting United States Attorney 10 RICHARD L. POMEROY Assistant United States Attorney 11 MATHEW W. PILE 12 Acting Regional Chief Counsel, Seattle, Region X 13 s/Michael Howard MICHAEL HOWARD 14 Special Assistant United States Attorney Office of the General Counsel 15 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 16 Seattle, WA 98104-7075 Telephone206-437-0928 17 Fax(206) 615-2531 Michael.Howard@ssa.gov 18 19 20 21 22 23 24 Page 9 DEFENDANT’S BRIEF-[1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 19 Filed 06/01/17 Page 9 of 10 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Defendant’s Brief was filed with the Clerk of the Court 3 on June 1, 2017, using the CM/ECF system, which will send notification of such filing to the 4 following: Howard D. Olinsky and Paul B. Eaglin. 5 6 s/Megan Moore MEGAN MOORE 7 Paralegal Specialist Office of the General Counsel 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 10 DEFENDANT’S BRIEF-[1:16-cv-00020-RRB] Case 1:16-cv-00020-RRB Document 19 Filed 06/01/17 Page 10 of 10

REPLY to Response to Motion re [13] MOTION to Remand to Social Security filed by Jeanette Lee Place.

1 Howard D. Olinsky Admitted Pro Hac Vice 2 Attorney for Plaintiff 3 Olinsky Law Group 300 South State Street 4 Syracuse, New York 13202 5 Telephone: (315) 701-5780 Fax: (315) 701-5781 6 holinsky@windisability.com 7 8 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ALASKA 9 Jeanette Lee Place, 10 11 Plaintiff, Case No. 1:16-CV-20-RRB 12 vs. 13 14 PLAINTIFF’S REPLY BRIEF Nancy A. Berryhill, (SOCIAL SECURITY) 15 Acting Commissioner of Social Security, 16 Defendant 17 18 PLAINTIFF’S REPLY BRIEF IN SUPPORT 19 OF A SOCIAL SECURITY APPEAL 20 21 I. ARGUMENT 22 1. The ALJ’s residual functional capacity finding was the product of legal error 23 and was unsupported by substantial evidence in several respects. 24 (A) The ALJ fails to articulate "specific and legitimate reasons" for discounting the opinion of Plaintiff’s treating psychiatrist, Dr. Brogdon. 25 The Commissioner offers that a "reasonable person" would affirm the ALJ’s decision. 26 27 Def.’s Br., Dkt. No. 19 (hereinafter "Def.’s Resp."), at 3. The Commissioner has not cited, and 28 Plaintiff’s Reply Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 1 Case 1:16-cv-00020-RRB Document 20 Filed 06/13/17 Page 1 of 6 1 Plaintiff finds no support in case law, any authority for a "reasonable person" standard of review 2 in Social Security disability appeals. Thus, Plaintiff continues to rely upon the "specific and 3 legitimate" standard, which the Commissioner’s brief avoids. The Commissioner otherwise 4 5 offers a recapitulation of the ALJ’s flawed reasoning, and, accordingly, Plaintiff stands on her 6 opening brief, which anticipated such arguments. 7 The Commissioner contends that the ALJ’s weighing of Dr. Brogdon’s opinion was 8 reasonable because Dr. Brogdon offered an opinion on an issue reserved to the Commissioner 9 (Def.’s Resp. at 3), however, Plaintiff’s opening brief responded to this unsupported finding 10 11 (Pl.’s Br. at 13–14), and thus Plaintiff’s continues to rely upon that authority now (Hill v. Astrue, 12 688 F.3d 1144, 1150–51 (9th Cir. 2012)). 13 The Commissioner contends that Plaintiff improved with medication (Def.’s Resp. at 4), 14 but, again, offers no response to Plaintiff’s citation to record evidence and authority contravening 15 those arguments (Pl.’s Br. at 14–15) that the medical evidence in this case and authority from 16 17 district courts in the Ninth Circuit on this issue. Plaintiff continued to argue for at least a closed 18 period of benefits in this case. The Commissioner adds that Plaintiff could care for a 19 granddaughter and swim in a pool in 2014. Def.’s Resp. at 4–5. However, the Ninth Circuit has 20 recognized that a claimant will suffer pain for important life goals, such as having a relationship 21 22 with grandchildren, and doing so does not mean the person is capable of work. See, e.g., 23 Reinertson v. Barnhart, 127 F. App'x 285, 288, n. 1 (9th Cir. 2005) (remanding ALJ where he 24 found child care as a reason supporting the adverse disability finding, "[t]hat observation is true 25 of any disability claimant who also happens to be a parent and, accordingly, does not constitute 26 substantial evidence supporting the conclusion that a claimant is not credible."). Moreover, 27 28 Plaintiff’s Reply Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 2 Case 1:16-cv-00020-RRB Document 20 Filed 06/13/17 Page 2 of 6 1 claimant need not be bed-ridden or "completely incapacitated" to qualify for benefits. See 2 generally Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); Vertigan v. Halter, 260 F.3d 1044, 3 1050 (9th Cir. 2001). Thus, caring for grandchildren, or swimming for therapy (T 334), which 4 5 she stated to treating sources was "the only thing I can do that doesn't hurt" (T 592) and testified 6 during the hearing she could not engage in swimming like a healthy person (T 62 ("I can’t swim 7 like a normal person") does not constitute specific and legitimate reasons for discounting the 8 opinion of a treating source. 9 The Commissioner attempts to argue that the ALJ, while failing to mention lower back 10 11 spondylolisthesis, nevertheless accounted for it by mentioning treatment notes reflect pain in her 12 "lower back." Def.’s Resp. at 5. This argument lacks merit. The references to lower back pain 13 fail to recognize the very serious spondylolisthesis, supported by imaging, and mischaracterizes 14 her pain as "spondylosis," a separate and less severe impairment. See Pl.’s Br. at 6, n. 1. The 15 Commissioner’s citation to Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005), is unavailing 16 17 because (a) Plaintiff does not argue that the ALJ erred at Step 2 of the analysis, as the claimant 18 did in Burch, and instead argues that failing to recognize Plaintiff’s spondylolisthesis impacted 19 the weighing of Plaintiff’s treating physician’s opinion (who was aware of her spine imaging), 20 and (b) the Burch court concerned itself with the failure to adequately consider Plaintiff’s 21 22 obesity, and is thus further distinguishable on the facts of this case were Plaintiff was diagnosed 23 spondylolisthesis, supported by medical imaging. 24 (B) The ALJ fails to articulate germane reasons for discounting the opinions 25 of sources providing treatment that were not medically acceptable sources under the regulations. 26 Plaintiff generally stands on the arguments and authorities raised in her opening brief, but 27 28 Plaintiff’s Reply Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 3 Case 1:16-cv-00020-RRB Document 20 Filed 06/13/17 Page 3 of 6 1 writes separately to note that the ALJ’s and Commissioner’ reliance upon a GAF score of 50 2 (Def.’s Resp. at 6–7) fails to recognize the unreliability of GAF scores alone, which have been 3 scrapped by both the DSM and the Commissioner herself as unreliable diagnostic or prognostic 4 5 tools that provide only a snapshot of functioning in any given moment. See McFarland v. 6 Astrue, 288 Fed. App'x. 357 (9th Cir.2008) (quoting 65 FR 50764–65). See also Brown v. 7 Comm'r SSA, No. CIV. TJS-12-3073, 2013 WL 5182698, at *3 (D. Md. Sept. 12, 2013) 8 (Commissioner has "declined to endorse GAF scale"); Carlton v. Astrue, No. 8:08-cv-62-T-JRK, 9 2009 U.S. Dist. LEXIS 27051, at *48—49 (M.D. Fla. Mar. 31, 2009) (collecting cases). See also 10 11 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 16 12 (5th ed. 2013) ("recommended that the GAF be dropped from DSM-5"). 13 (C) The ALJ failed to fully and fairly develop the record despite Plaintiff 14 representing herself pro se during the hearing. 15 Plaintiff stands on her argument that the ALJ failed to develop the record, by, inter alia, 16 living up to her heightened duty to assist this unrepresented claimant (DeLorme, 924 F.2d at 849; 17 Celaya, 332 F.3d at 1184; Struck, 247 Fed. Appx. at 86) by seeking a medical source statement 18 regarding her physical impairments (Lewis, 293 Fed. Appx. at 496), or ordering a physical CE 19 20 (Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001) (ALJ remanded despite "broad latitude" 21 in ordering CE reports). 22 II. CONCLUSION 23 For the foregoing reasons, it is respectfully requested that this Court remand this matter 24 for payment of benefits, or, in the alternative, for further administrative proceedings, including 25 26 de novo hearing and decision. 27 28 Plaintiff’s Reply Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 4 Case 1:16-cv-00020-RRB Document 20 Filed 06/13/17 Page 4 of 6 1 2 3 Date: June 13, 2017 Respectfully submitted, 4/s/Howard D. Olinsky 5 Howard D. Olinsky Admitted Pro Hac Vice 6 Attorney for Plaintiff 7 Olinsky Law Group 300 South State Street 8 Syracuse, New York 13202 9 Telephone: (315) 701-5780 Fax: (315) 701-5781 10 NVR/AKV holinsky@windisability.com 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s Reply Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 5 Case 1:16-cv-00020-RRB Document 20 Filed 06/13/17 Page 5 of 6 1 CERTIFICATE OF SERVICE 2 3 This is to certify that I have this day served counsel for the Defendant with Plaintiff’s Reply Brief by filing the foregoing on the Court’s ECF system, which sent electronic notice to the 4 following recipients: 5 6 MICHAEL HOWARD Special Assistant United States Attorney 7 Office of the General Counsel 8 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 9 Seattle, WA 98104-7075 Telephone: 206-437-0928 10 Fax: (206) 615-2531 11 Michael.Howard@ssa.gov 12 This 13th day of June, 2017. 13 14/s/Paul Eaglin 15 Paul Eaglin, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s Reply Brief (Social Security) Jeanette Lee Place v. Berryhill Case No. 1:16-CV-20-RRB 6 Case 1:16-cv-00020-RRB Document 20 Filed 06/13/17 Page 6 of 6

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Description
1
12/21/2016
COMPLAINT against Carolyn W. Colvin (Filing fee $400, Manual Receipt No. 098437), filed by Jeanette Lee Place.
1
Exhibit A - SSA Letter
1 Attachment
2
12/21/2016
Civil Cover Sheet.
3
12/21/2016
Unissued summons re Defendant C. Colvin
1
Unissued Summons re Defendant USAG
2
Unissued Summons re Defendant USAO
2 Attachments
12/21/2016
Summons Issued as to Carolyn W. Colvin, U.S. Attorney and U.S. Attorney General (Text entry; no document attached.)
4
12/22/2016
CLERK'S NOTICE that case was inadvertently assigned to Judge Sedwick. Case reassigned to Judge Ralph R. Beistline for all further proceedings. Please use case number 1:16-cv-00020-RRB on all future filings.
5
01/17/2017
SUMMONS Returned Executed by Jeanette Lee Place. Carolyn W. Colvin served on 1/11/2017, answer due 3/13/2017.
6
01/25/2017
NOTICE of Appearance by Richard L. Pomeroy on behalf of Carolyn W. Colvin
7
02/01/2017
SOCIAL SECURITY SCHEDULING ORDER: agency record due w/i 60 days of def's appearance; plf's opening brf due w/i 30 days after filing of agency record; def's ans brf due w/i 30 days after svc of plf's opening brf; plf's reply brf due w/i 14 days after svc of def's brf. Signed by Judge Ralph R. Beistline on 2/1/17.
02/01/2017
Docket Annotation: For the purpose of tracking the briefing as ordered at docket 7, when filing the Opening Brief the attorney shall file the document using the event Motion Miscellaneous Relief and text in the relief being sought. Responsive filings should be filed using the event Response in Opposition to Motion or Response to Motion (Non-Opposition). The reply, if any, shall be filed using the event Reply to Response to Motion. (Text entry; no document attached.)
02/09/2017
Docket Annotation: Nancy A. Berryhill, represented by Richard L. Pomeroy substituted for Carolyn W. Colvin (acting Commissioner of Social Security) pursuant to FRCvP 25(d)(1) (Text entry; no document attached.)
8
03/08/2017
NOTICE of Appearance by Michael S. Howard on behalf of Nancy A. Berryhill
9
03/13/2017
ANSWER to 1 Complaint by Nancy A. Berryhill.
10
03/13/2017
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
11
Medical Records Part 4
12
Medical Records Part 5
12 Attachments
11
04/05/2017
MOTION for Extension of Time to File (Unopposed) by Jeanette Lee Place.
1
Proposed Order
1 Attachment
12
04/05/2017
RRB TEXT ORDER granting 11 Motion for Extension of Time to File. Plaintiff shall have until close of business on 4/19/2017 within which to her Opening Brief in this action. (LLR, CHAMBERS STAFF)
13
04/19/2017
MOTION to Remand to Social Security by Jeanette Lee Place.
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--2318836.) by Jeanette Lee Place.
1
1 Certificate of Good Standing
1 Attachment
15
05/09/2017
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
05/24/2017
MOTION for Extension of Time to File Response/Reply Unopposed by Nancy A. Berryhill.
1
Proposed Order
1 Attachment
17
05/24/2017
DECLARATION of Michael Howard re 16 MOTION for Extension of Time to File Response/Reply Unopposed by Nancy A. Berryhill.
18
05/24/2017
RRB TEXT ORDER: Defendant's unopposed motion for extension of time at Docket 16 is GRANTED. Defendant shall have until 6/2/2017 within which to her response to the motion at Docket 33 and Plaintiff shall have until 6/16/2017 within which to file her reply. (LLR, CHAMBERS STAFF)
19
06/01/2017
RESPONSE in Opposition re [13] MOTION to Remand to Social Security filed by Nancy A. Berryhill.
20
06/13/2017
REPLY to Response to Motion re [13] MOTION to Remand to Social Security filed by Jeanette Lee Place.
21
03/19/2018
ORDER granting [13] Motion to Remand to social security. Signed by Judge Ralph R. Beistline on 3/19/18. (LLR, CHAMBERS STAFF)
22
03/20/2018
JUDGMENT: This case is remanded to the Social Security Administration for further proceedings consistent with the Courts opinion at docket 21. Signed by Judge Ralph R. Beistline on 3/20/18.
23
06/15/2018
Attorney Fees
24
06/15/2018
Declaration
25
06/25/2018
Response to Motion (Non-Opposition)
26
06/26/2018
Order on Motion for Attorney Fees
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