Ponce v. Commissioner of Social Security Administration
Court Docket Sheet

District of Arizona

2:2017-cv-01524 (azd)

COMPLAINT. Filing fee received: $400.00, receipt number 0970-14242238 filed by Angelica Ponce. (submitted by Howard Olinsky)

Case 2: 17-cv-01524-DJH Document 1 Filed 05/18/17 Page 1 of 3 o o N o 1 w NP Howard D. Olinsky Olinsky Law Group One Park Place 300 South State Street Suite 420 Syracuse, NY 13202 N. Y. Bar No. 2044865 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 holinsky@windisability.com Attorney for Plaintiff Angelica Ponce I I UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PRESCOTT DIVISION I H H H H H H O UI A w N o) NO. ANGELICA PONCE, Soc. Sec. # XXX-XX-2146, Plaintiff, V.) COMPLAINT NANCY A. BERRYHILL, acting Commissioner of Social Security, P} 18 Defendant. 19 20 1 i I 2 2 1 Plaintiff, Angelica Ponce, by her attorney, Howard D. Olinsky, alleges as follows: 1. The jurisdiction of this Court is invoked pursuant to 42 U. S. C. 405 (g) to review a decision of the Commissioner of Social Security denying Plaintiffs application for Social Security Disability Insurance benefits for lack of disability. 23 i i povo g I 24 f 1 S i 5 This action is an appeal from a final administrative decision NN N No Plaintiffs claim. 28 Case 2: 17-cv-01524-DJH Document 1 Filed 05/18/17 Page 2 of 3 i ܘܸܬ i 1 ܫܡܟ i 3. This action is commenced within the appropriate time period set forth in the attached Appeals Council Notice dated March 16, 2017. (Exhibit A). 4. Plaintiff, whose social security number is XXX-XX-2146, resides in Maricopa, Pinal County, Arizona, which is within this judicial district and division. 5. The Defendant, Nancy A. Berryhill, is the acting Commissioner of Social i I t 1 1 i o w No w NP ngayomwwwwwarmwashman, mintegy Mw. www mwytw i 1 S Security of the United States of America. I 1 I 6. Plaintiff is disabled. 1 1 O 7. The agency committed error of law by denying Appeals Council review of a C 11 t 12 13 the decision by the Administrative Law Judge, or otherwise to deny relief that was within the authority of the Appeals Council. 8. The conclusions and findings of fact of the Defendant are not supported by 4 PH Un f f t 0 H H de t t substantial evidence and are contrary to law and regulation. WHEREFORE, Plaintiff prays that this Court: 1. Find that the Plaintiff is entitled to Social Security Disability Insurance benefits under the provisions of the Social Security Act; or 18 1 1 19 20 21 2. Remand the case for a further hearing; a 22 3. Award attorney's fees under the Equal Access to Justice Act, 28 U. S. C. s 23 2412, on the grounds that the Commissioner's action in this case was not substantially 1 1 justified; and NNN 4. Order such other and further relief as the Court deems just and proper. I t S LIVI. Dated this 18th day of May, 2017. 28 (M) N N N N N N N N N H 00 N O UT A W N H O O V H P H H H Om W N OO E o o N o Un A W NP Hwwwmni we w W. M. (Pending Admission Pro Hac Vice) Attorney for Plaintiff Howard D. Olinsky, Esq. BY: s/Howard D. Olinsky Case 2: 17-cv-01524-DJH Document 1 Filed 05/18/17 Page 3 of 3...... CANON,.... PRANALA NJABI: Runnymerise...

Exhibit

Case 2: 17-cy-01524-DJH Document 1-1 Filed 05/18/17 Page 1 of 5 EXHIBIT A Case 2: 17-cv-01524-DJH Document 1-1 Filed 05/18/17 Page 2 of 5 T KEMARAHAN YANG AKALENTEMENTE CHAMANDOuttescuela URSSIEKwiennik GCIARRAKASTIHTKAISARANKANSELIGENTASAN AKSARA SARANA PENKIAardwestesiastiska vintrassetswirtschwandenesi olan ABRASASKAN SECARA Esta RRRANSEN ega AILMAS WIKE * Refer to: TLC--2146 Ofice of Disability Adjudication and Review bul 1 19 A GENE Church. CABARA Telephone: (87) 670-2722 Date: March 16, 2017 PERKAR I Z Ms. Angelica Ponce T PAS JA11 * * COST OTSV16V i LES September 17, 2015. WE t i i em eview Therefore, we have denied your request for review. permanent VLNY i SAMA I {D f TOISSIOISI O SOCIALI DIVU IR ved VOOIT i rogulations i OLIGOT Kabilang we this i KALNIS Under our rules, we will review your case for any of the following reasons: Our we CD f BESOI * Bes JA = TOGA DAVO JIS 60 Praga INCrott DOS 19 $ 1 & THOR2-DIM $ 745 DORSAIS 01360 OG * There is an enor of law. pamat i ротежина Basa PULO * * i O Procedura 1SAUG Bergen may aireot T TOLESL. G IV mato e pasas VITIT 1 i i i {t N * SG RA gov/F THE 1 50 ~ ar. Case 2: 17-cv-01524-DJH Document 1-1 Filed 05/18/17 Page 3 of 5 Angelica Ponce-2146) i E What we considered I he TeRBOns With lie the LA material listed on the enclosed Order of Appeals Council. We considered whether the Administrative Law Judge's actions, findings, or conclusion is contrary to the weight of evidence of record DIch '. speki Prosa PROVId TILLI I Judge's decisioIL Y & disagree i * yang RO e sa AW Judge's decision by filing a civil action CISIOT i f T i MO Q i ATOLLIITIUS Linder Special changed 1 1 1 8 i i LII f COUNT t (Ing Cusrict i T District Court for the judicial district in which you live. The complaint should name the Commissioner of Social Security as the defendant and should include the Social Security CITY pesh S TOUTCROLaTIVO ULISE your complain the SIUKOInnoIIS I don6V i VOU DIE vour DOV i i 辦廣 t I ules of Civil Procedure. 1 SKA 1 B or registered mail, to the Social Security Administration's Office of the General Counsel that OL AJ KLASA ADMINISTRATION PLAI * * Y t i Hard-I pesade BALLAL wich A TSSPOISID which the complaint is filed. The names, addresses, and jurisdictional responsibilities of these offices are published in the Federal Register (70 FR 73320, December 9, 2005), and are available online at the Social Security Administration's Internet site, tieve Keenes * a SIG//OLIV. SEL. TOV/DOILLAISVINTIKSVU ARKarne yaikainen voitong wacanvasione del caloidiskretera Laos acontecerynowanie. VONKARAHANA PERBEKANKAN MESAgainstated B You on your representative must also send copies of the complaint and summons, by certified O registered mail, to the Attorney General of the United States, Washington, DC 20530. I (all, f I A Oavi At review • The 60 days start the day after you receive this letter. We assume you received this letter start VOU recov & SSIMO rece i i 1. Case 2: 17-cv-01524-DJH Document 1-1 Filed 05/18/17 Page 4 of 5 Angelica Ponce 2146) I ERAGE I Y 11 IL VO L as T Wml period. S VO * DY review WILI YOU MUIR t NOTe than rele ALLE MINI ing HS ask for court review. You must make the request in writing and give your reason(s) in the request. You must mail your request for more time to the Appeals Council at the address shown at the Tumb lis SOWO N I 8 VERSIS SLO VOLIT TOUTE a gwe I Wineho I f t ES N AbONIt Tre Law S S I Ieview 1 1 CUTINY i i IAITRS This yneel S States Code. I C X CIRCIJAL provided for in Section 1631 (CX3) of the Social Security Act. This section is also Section i i 1 1 1 I I DYMA Nieuwe. I 1 I Sca w I BERE I have a УСІ If you have any questions, you may call, write, or visit any Social Security office. If you do call or visit an office, please have this notice with you. The telephone number of the local ୫୫ office that serves your area is (877) 405-0403. Its address is: I LIL ti ties EKR IRAK $ 1. A 10MCT-OMR-QOYUY439 0062419 MINT OG I E F Z Casa Grande, AZ 85122-9946 ist Richard M. Ciasemele, ga Richard M. Ciaramello, Jr. Appeals Officer {RA 4 1 ed preparto P. O. Box 127 Lehi, UT 84043-0127 I ASIL L Case 2: 17-cv-01524-DJH Document 1-1 Filed 05/18/17 Page 5 of 5 memenangan S i LA IL Y TRIC TYLL peaastas AA I AND Purces I N DPR, FOR asetest 1. Angelica Ponce i llura (VALLE 2146 Mwen mennesketswearetumacetamentasaranamentalmente (Wage Earner) Social JUDILY NLIIaper) i ERA i cea a Brank = as SA A OR INI OVCHILCO COLNEMLE the f recup OWIE GOTIILIS. I RepROSEILLELI Bere VIETNAM Februar tative through Life Family Center. 1 OSOBA SMOGG $ 1604 EBLOEG-EGO-SUL IN SEL A

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Case 2: 17-cv-01524-DJH. Document 1-2 led Q5/18/17 Page 1 of 2 http://www.azd. uscourts.gov/cgi-bin/generate _ civil _ js44. I I I I UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA S I Civil Cover Sheet SEKREASI KENMERKSWIRTYSTKARTEEZERRARESE This automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference of the United States in September 1974. The data is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. The information contained herein neither replaces nor supplements the filing and service of pleadings or other papers as required by law. This form is authorized for use only in the District of Arizona. 1 e I I Kaux t S I I I N 1 42 Pond t I t I i planes ( I FENEuut Ejeres ATSIKRATA d I t a I I t A t the Complaint or Notice of Removal. i i I I I t a Santile * N.-a * verratxoni. Nes: hitama. * *. Mueris mwy.. semasse stof:: Avrupe. Sax 4 " saộ A lệ và. 808 + 16 " ss everowo owe aes-Coswami apaugyvenamas.-. catum 20. Reagan * Koknesere LAST prvntre 0. * *-* iw wrywks srex g 1 Plaintiff(s): Angelica Ponce County of Residence: Pinal County Where Claim For Relief Arose: Pinal Defendant(s): Nancy A. Berryhill County of Residence: Pinal 1 i Defendant's Atty(s): f I I i Plaintiff's Atty(s): Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State Street, Ste. 420 Syracuse, New York 13202 315-701-5780 dist, * Ang? Messukcesi-isa. Nali, " I wille. Kiewervice. Nanawr' invx. wwwwapdiv Nov AN AM. 114-ma' N, now. ONAY. in. urruty: hox naravnsviscernen. ww ':: w: Orden: wyw:.. v. v...:. * piano etmeyen ylion " > J¢X * * 7. *. veteran' w' r wytywnym. www' Yareial ArverviewN. MIL' NIN VALAItaa its: Mes terres, 18 Marso Occhus epixxi IFP REQUESTED II. Basis of Jurisdiction: 2. U. S. Government Defendant OVEI e t III. Citizenship of Principal Parties (Diversity Cases Only) Plaintiff:-N/A Defendant:-N/A IV. Origin: 1 I Praegu o g I BAIE Ad n ရေ V. Nature of Suit: 863 DIWC/DIWW (405 (g) I I VI. Cause of Action: 42 USC 405 (g): Denial of Social Security Disability Insurance benefits. Ura I VII. Requested in Complaint Class Action: No Dollar Demand: 1 of 2 5/18/17 12: 44 PM Case 2: 17-cv-01524-DJH. Document 1-2 iled Q5/18/17 Page 2 of 2 http://www.azd. uscourts.gov/cgi-bin/generate _ civil _ js44. Jury Demand: No VIII. This case is not related to another case. r. Kutu' ahvas.--N Knives 8-ova " A ven. *; *-autxurm. a. Misiri-ciranian " sa voce: Artis I/O:-da *.. ad Avivi 5: * ewa " * * * * * * * * * * * *: n.--kam 10 septes. * * * X = xina mtuan see, mi-sunga-meta: useihs seoran,-Minanxuesve tarinoita. Se vunea: N Amir sa bhli-as 2-* * Searstwood' uxakwe wspark Signature: s/Howard D. Olinsky i g OWAT Date: 5/18/2017 meng usa f I T i I e UK If any of this information is incorrect, please go back to the Civil Cover Sheet Input form using the Back button in your 1cOrr browser and change it. Once correct, save this forın as a PDF and include it as an attachment to your case opening documents. browser Ce COTI I I as a Ur Cas Cum ents. Revised: 01/2014 2 of 2 5/18/17 17: 44 PM

SUMMONS Submitted by Angelica Ponce. (submitted by Howard Olinsky)

Case 2: 17-cv-01524-DJH Document 2 Filed 05/18/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona ANGELICA PONCE Plaintiff(s) V. ۔ ۔ ۔ ۔ ۔ ۔ ۔ ۔ ۔ Civil Action No. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) United States Attorney's Office District of Arizona Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, AZ 85004-4408 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it)---or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3)--you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney, whose name and address are: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 2: 17-cv-01524-DJH Document 2 Filed 05/18/17 Page 2 of 2. AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. t-TIKETEmangrovescutsutun tummecDENNATADA SERIE DE REGERINEVYUO SUPREMANERENDE SENESNELENMEKTEuclisuwr MRS. kuwen Rettuna TWA, PRODUSELO ARGOMENTARIACKINNI. et PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (0)) This summons for (name of individual and title, if any) was received by me on (date) O I personally served the summons on the individual at (place) on (date); or O I left the summons at the individual's residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual's last known address; or, who is O I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date); or O I returned the summons unexecuted because; or O Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

Summons

Case 2: 17-cv-01524-DJH Document 2-1 Filed 05/18/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action-REALMENTE.. tammikuussa.. NAMESIN MENEWENSSINSA KOTKRISTENANNTNOMMERVILLEIDA. PR. MOMMASWS ANWESENUWUN. NACH DIESE EIEN... S RAWAN.... strewe wanaw. CE SENSIT ENTRANCE IS. I. C NarewNNT Wm para a Renowachtudeeruvcov druvor. DassNyota NowotwSONG NAWAWILONIEI. armecockwo.... Grossarum mann SMYRIACAL Arcturu koordinatliwe. HUN.. pumagsanayoitwa SS. S. MY META. N. Arten: TAMARAFIKIRIWA UNITED STATES DISTRICT COURT for the District of Arizona ANGELICA PONCE Plaintiff(s) V. Civil Action No. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION 1 To: (Defendant's name and address) Office of the Regional Chief Counsel, Region X Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it)--or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3)-you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 2: 17-cv-01524-DJH Document 2-1 Filed 05/18/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (0) T S A 4 This summons for (name of individual and title, if any) was received by me on (date) O I personally served the summons on the individual at (place) on (date); or O I left the summons at the individual's residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual's last known address; or, who is O I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date); or O I returned the summons unexecuted because Or O Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

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Case 2: 17-cv-01524-DJH Document 2-2 Filed 05/18/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action Poluvrstiteville de S. Maria sovetturaino muniNIENTE RETIRE ROTUNNELI. MONSISSEESAMA BERMATAPEWORD. DIE MAAN MAWARNIN. P.-.. Yury mwangunan mas malaw. IETEIKTIEWMINIWALNYMRAVESTITASKIWANINIWALAAN NAIMATRANA. SARRERAKETAREN ENTWITWATERWYMIARISTAyw. KIT ANITTI. SIRKT prene UNITED STATES DISTRICT COURT for the District of Arizona ANGELICA PONCE Plaintiff(s) V. Civil Action No. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) United States Attorney General Constitution Avenue & 10th St., NW Washington, DC 20530 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it)---or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney, whose name and address are: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 2: 17-cv-01524-DJH Document 2-2 Filed 05/18/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) HEROESNE-Emmanuests te unw. Yn umummyKuasamengeschwinWYR PASSE ENAMORADA EM KANDYDecks suu wa usawa menewNoumea Norman Iwan Atattdru. EL CENTRE NATIONIS DOMINwovstvu. Immagma Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (0)) i COUF i This summons for (name of individual and title, if any) was received by me on (date) O I personally served the summons on the individual at (place) on (date); or O I left the summons at the individual's residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual's last known address; or, who is O I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date); or O I returned the summons unexecuted because; or O Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

Filing fee paid, receipt number 0970-14242238. This case has been assigned to the Honorable Diane J. Humetewa. All future pleadings or documents should bear the correct case number: CV-17-01524-PHX-DJH. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached.

Case 2:17-cv-01524-DJH Document 3 Filed 05/18/17 Page 1 of 1 AO 85 (Rev. 8/97) Notice, Consent, and Order of Reference-Exercise of Jurisdiction by a United States Magistrate Judge (For Use In Civil Cases With District Judge as Presider) UNITED STATES DISTRICT COURT _______________________________ District of __________________________________________________ NOTICE, CONSENT, AND ORDER OF REFERENCE-Plaintiff EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE v. Case Number: Defendant NOTICE OF AVAILABILITY OF A UNITED STATES MAGISTRATE JUDGE TO EXERCISE JURISDICTION In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P.73, you are hereby notified that a United States magistrate judge of this district court is available to conduct any or all proceedings in this case including a jury or nonjury trial, and to order the entry of a final judgment. Exercise of this jurisdiction by a magistrate judge is, however, permitted only if all parties voluntarily consent. You may, without adverse substantive consequences, withhold your consent, but this will prevent the court’s jurisdiction from being exercised by a magistrate judge. If any party withholds consent, the identity of the parties consenting or withholding consent will not be communicated to any magistrate judge or to the district judge to whom the case has been assigned. An appeal from a judgment entered by a magistrate judge shall be taken directly to the United States court of appeals for this judicial circuit in the same manner as an appeal from any other judgment of a district court. CONSENT TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case hereby voluntarily consent to have a United States magistrate judge conduct any and all further proceedings in the case, including the trial, order the entry of a final judgment, and conduct all post-judgment proceedings. Signatures Party Represented Date _____________________________________ __________________________________ ____________________ _____________________________________ __________________________________ ____________________ _____________________________________ __________________________________ ____________________ _____________________________________ __________________________________ ____________________ ORDER OF ASSIGNMENT IT IS HEREBY ORDERED that this case be assigned to ______________________________________________________ United States Magistrate Judge, for all further proceedings and the entry of judgment in accordance with 28 U.S.C. 636(c), Fed.R.Civ.P. 73 and the foregoing consent of the parties. All further documents filed with the court are to carry the following case number ________________________________________. ________________ _____________________________________________________________________________________ Date United States District Judge NOTE: RETURN THIS FORM TO THE CLERK OF THE COURT ONLY IF ALL PARTIES HAVE CONSENTED ON THIS FORM TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE.

Summons Issued as to Commissioner of Social Security Administration (via Office of the Regional Chief Counsel, Region X), U.S. Attorney and U.S. Attorney General.

Case 2: 17-cv-01524-DJH Document 4 Filed 05/18/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action-REALMENTE.. tammikuussa.. NAMESIN MENEWENSSINSA KOTKRISTENANNTNOMMERVILLEIDA. PR. MOMMASWS ANWESENUWUN. NACH DIESE EIEN... S RAWAN.... strewe wanaw. CE SENSIT ENTRANCE IS. I. C NarewNNT Wm para a Renowachtudeeruvcov druvor. DassNyota NowotwSONG NAWAWILONIEI. armecockwo.... Grossarum mann SMYRIACAL Arcturu koordinatliwe. HUN.. pumagsanayoitwa SS. S. MY META. N. Arten: TAMARAFIKIRIWA UNITED STATES DISTRICT COURT for the District of Arizona ANGELICA PONCE Plaintiff(s) V. Civil Action No. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION 1 To: (Defendant's name and address) Office of the Regional Chief Counsel, Region X Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it)--or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3)-you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. STRICT CLERK OF COURT COURT Date: Signature of Clerk or Deputy Clerk ISII ISSUED ON 4: 28 pm, May 18, 2012: S/Brian D. Karth, Clerk Case 2: 17-cv-01524-DJH Document 4 filed 05/18/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (0) T S A 4 This summons for (name of individual and title, if any) was received by me on (date) O I personally served the summons on the individual at (place) on (date); or O I left the summons at the individual's residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual's last known address; or, who is O I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date); or O I returned the summons unexecuted because Or O Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

Summons

Case 2: 17-cv-01524-DJH. Document 4-1 Filed 05/18/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the District of Arizona ANGELICA PONCE Plaintiff(s) V. ۔ ۔ ۔ ۔ ۔ ۔ ۔ ۔ ۔ Civil Action No. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) United States Attorney's Office District of Arizona Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, AZ 85004-4408 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it)---or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3)--you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney, whose name and address are: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. DISTRI STATES CLERK OF COURT MRT Date: Signature of Clerk or Deputy Clerk OFARI CIRONA ISSUED ON 4: 28 pm, May 18, 201: s/Brian D. Karth, Clerk Case 2: 17-cv-01524-DJH Document 4-1 Filed 05/18/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. t-TIKETEmangrovescutsutun tummecDENNATADA SERIE DE REGERINEVYUO SUPREMANERENDE SENESNELENMEKTEuclisuwr MRS. kuwen Rettuna TWA, PRODUSELO ARGOMENTARIACKINNI. et PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (0)) This summons for (name of individual and title, if any) was received by me on (date) O I personally served the summons on the individual at (place) on (date); or O I left the summons at the individual's residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual's last known address; or, who is O I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date); or O I returned the summons unexecuted because; or O Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

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Case 2: 17-cv-01524-DJH Document 4-2 Filed 05/18/17 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action Poluvrstiteville de S. Maria sovetturaino muniNIENTE RETIRE ROTUNNELI. MONSISSEESAMA BERMATAPEWORD. DIE MAAN MAWARNIN. P.-.. Yury mwangunan mas malaw. IETEIKTIEWMINIWALNYMRAVESTITASKIWANINIWALAAN NAIMATRANA. SARRERAKETAREN ENTWITWATERWYMIARISTAyw. KIT ANITTI. SIRKT prene UNITED STATES DISTRICT COURT for the District of Arizona ANGELICA PONCE Plaintiff(s) V. Civil Action No. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) United States Attorney General Constitution Avenue & 10th St., NW Washington, DC 20530 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it)---or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a) (2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney, whose name and address are: Howard D. Olinsky, Esq. Olinsky Law Group 300 S. State St., Ste. 420 Syracuse, NY 13202 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. KIES DIS CLERK OF COURT 2 STATE COURT Date: Signature of Clerk or Deputy Clerk (STRICT ONA ISSUED ON 4: 28 pm, May 18, 2012 s/Brian D. Karth, Clerk Case 2: 17-cv-01524-DJH Document 4-2 Filed 05/18/17 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) HEROESNE-Emmanuests te unw. Yn umummyKuasamengeschwinWYR PASSE ENAMORADA EM KANDYDecks suu wa usawa menewNoumea Norman Iwan Atattdru. EL CENTRE NATIONIS DOMINwovstvu. Immagma Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (0)) i COUF i This summons for (name of individual and title, if any) was received by me on (date) O I personally served the summons on the individual at (place) on (date); or O I left the summons at the individual's residence or usual place of abode with (name), a person of suitable age and discretion who resides there, on (date), and mailed a copy to the individual's last known address; or, who is O I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date); or O I returned the summons unexecuted because; or O Other (specify): My fees are $ for travel and $ for services, for a total of $ 0. 00 I declare under penalty of perjury that this information is true. Date: Server's signature Printed name and title Server's address Additional information regarding attempted service, etc:

SOCIAL SECURITY SCHEDULING ORDER: This action was commenced on May 18, 2017 and assigned to an expedited track pursuant to Local Rule of Civil Procedure 16.2 (b)(1)(A)(i). IT IS ORDERED that the parties must fully comply with the following deadlines and procedures: See document for full details. Signed by Judge Diane J Humetewa on 5/18/2017.

Case 2:17-cv-01524-DJH Document 6 Filed 05/19/17 Page 1 of 3 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Angelica Ponce, No. CV-17-01524-PHX-DJH 10 Plaintiff, SOCIAL SECURITY SCHEDULING ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 This action was commenced on May 18, 2017. The Clerk of Court assigned this 16 case to the expedited track pursuant to Local Rule of Civil Procedure 16.2(b)(1)(A)(i). 17 Pursuant to LRCiv 16.2(b)(1)(B), the Court issues this Scheduling Order without 18 holding a scheduling conference. Accordingly, 19 IT IS ORDERED that the parties must fully comply with the following deadlines 20 and procedures: 21 I. Briefing Requirements Contained in LRCiv 16.1. The parties must fully 22 comply with LRCiv 16.1 in its entirety and must strictly comply with the following 23 requirements: 24 (a) Opening Brief. Within sixty (60) days after the 25 answer is filed, Plaintiff must file an opening brief addressing why the Commissioner’s decision is not supported by 26 substantial evidence or why the decision should otherwise be reversed or the case remanded. Plaintiff’s opening brief must 27 set forth all errors which Plaintiff contends entitle him or her to relief. The brief must also contain, under appropriate 28 headings and in the order indicated below, the following: Case 2:17-cv-01524-DJH Document 6 Filed 05/19/17 Page 2 of 3 1 (1) A statement of the issues presented for review, set forth in separate numbered paragraphs. 2 (2) A Statement of the Case. This statement should indicate 3 briefly the course of the proceedings and its disposition at the administrative level. 4 (3) A Statement of Facts. This statement of the facts must 5 include Plaintiff’s age, education, and work experience; a summary of the physical and mental impairments alleged; a 6 brief outline of the medical evidence; and a brief summary of other relevant evidence of record. Each statement of fact 7 must be supported by reference to the page in the record where the evidence may be found. 8 (4) An argument. The argument, which may be preceded by 9 a summary, must be divided into sections separately treating each issue. Each contention must be supported by specific 10 reference to the portion of the record [by reference to specific page numbers] relied upon and by citations to 11 statutes, regulations, and cases supporting Plaintiff’s position. If any requested remand is for the purpose of taking 12 additional evidence, such evidence must be described in the opening brief, and Plaintiff’s argument must show that the 13 additional evidence is material and that there is good cause for the failure to incorporate such evidence into the record in 14 a prior proceeding. If such additional evidence is in the form of a consultation examination sought at Government expense, 15 Plaintiff’s opening brief must make a proffer of the nature of the evidence to be obtained. 16 (5) A Short Conclusion Stating the Relief Sought. 17 (b) Answering Brief. Defendant must file an answering 18 brief within thirty (30) days after service of Plaintiff’s opening brief. Defendant’s brief must (1) respond 19 specifically to each issue raised by Plaintiff and (2) conform to the requirements set forth above for 20 Plaintiff’s brief, except that a statement of the issues, a statement of the case and a statement of the facts need not be 21 made unless Defendant is dissatisfied with Plaintiff’s statement thereof. 22 (c) Reply Brief. Plaintiff may file a reply brief within fifteen 23 (15) days after service of Defendant’s brief. 24 (d) Length of Briefs. Unless otherwise ordered by the Court, the opening and answering briefs may not exceed 25 twenty-five (25) pages, including any statement of facts, with the reply brief limited to eleven (11) pages. The case will be 26 deemed submitted as of the date on which Plaintiff’s reply brief is filed or due. 27 (e) Oral Argument. If either party desires oral argument, it 28 must be requested in the manner prescribed by Rule 7.2(f) of the Local Rules of Civil Procedure upon the filing of the-2-Case 2:17-cv-01524-DJH Document 6 Filed 05/19/17 Page 3 of 3 1 opening brief. Whether to allow oral argument is at the discretion of the Court. 2 3 LRCiv 16.1(a)–(e) (emphasis added). 4 II. Warnings 5 In Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), the Court of Appeals 6 explained that the Commissioner’s decision to deny benefits would be overturned "only if 7 it is not supported by substantial evidence or is based on legal error." Correspondingly, 8 under our Local Rules, a general allegation that the Commissioner committed legal error, 9 or that the Commissioner’s determination is not supported by substantial evidence, is 10 insufficient to raise that issue for review. See Greenwood v. FAA, 28 F.3d 971, 977 (9th 11 Cir. 1994) (internal citation omitted) ("We review only issues which are argued 12 specifically and distinctly in a party’s opening brief. We will not manufacture arguments 13 for an appellant, and a bare assertion does not preserve a claim...."). Accordingly, if 14 either party fails to timely file a brief in full compliance with this Order, the Court may 15 strike the non-complying brief, dismiss the case, or remand to the agency, as appropriate. 16 See generally Fed. R. Civ. P. 41(b). 17 Dated this 18th day of May, 2017. 18 19 Honorable Diane J. Humetewa United States District Judge 20 21 22 23 24 25 26 27 28-3-

SERVICE EXECUTED filed by Angelica Ponce: Return of Service re: Summons, Complaint and Scheduling Order upon US Attorney's Office, Office of General Counsel, Attorney General on 6/12/2017.

Case 2:17-cv-01524-DJH Document 7 Filed 06/22/17 Page 2 of 6 Date: June 22, 2017 Michelle Callahan: The following is in response to your June 22, 2017 request for delivery information on your Certified Mail™/RRE item number 9314869904300035025591. The delivery record shows that this item was delivered on June 10, 2017 at 12:00 pm in PHOENIX, AZ 85004. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local Post Office or postal representative. Sincerely, United States Postal Service Case 2:17-cv-01524-DJH Document 7 Filed 06/22/17 Page 4 of 6 Date: June 22, 2017 Michelle Callahan: The following is in response to your June 22, 2017 request for delivery information on your Certified Mail™/RRE item number 9314869904300035025645. The delivery record shows that this item was delivered on June 12, 2017 at 4:36 pm in SEATTLE, WA 98104. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local Post Office or postal representative. Sincerely, United States Postal Service Case 2:17-cv-01524-DJH Document 7 Filed 06/22/17 Page 6 of 6 Date: June 22, 2017 Michelle Callahan: The following is in response to your June 22, 2017 request for delivery information on your Certified Mail™/RRE item number 9314869904300035025713. The delivery record shows that this item was delivered on June 12, 2017 at 4:39 am in WASHINGTON, DC 20530. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local Post Office or postal representative. Sincerely, United States Postal Service

NOTICE OF ATTORNEY APPEARANCE: Daphne Banay appearing for Commissioner of Social Security Administration.

Case 2:17-cv-01524-DJH Document 8 Filed 07/08/17 Page 1 of 3 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Daphne Banay 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA21537 8 Fax: (206) 615-2531 daphne.banay@ssa.gov 9 Telephone: (206) 615-2113 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Angelica Ponce, No. CV-17-01524-PHX-DJH 14 15 Plaintiff, 16 DEFENDANT’S NOTICE OF vs. APPEARANCE 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 PLEASE TAKE NOTICE that Defendant Commissioner of Social Security 22 23 hereby notifies Plaintiff and this Court that the following Special Assistant U.S. 24 Attorney will appear as counsel of record in the above-captioned case: 25 26 27 28 Case 2:17-cv-01524-DJH Document 8 Filed 07/08/17 Page 2 of 3 1 Daphne Banay Special Assistant United States Attorney 2 Office of the General Counsel 3 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 4 Seattle, WA 98104-7075 5 State Bar No. WA21537 Fax: (206) 615-2531 6 daphne.banay@ssa.gov Telephone: (206) 615-2113 7 8 DATED this 8th day of July 2017. 9 Respectfully submitted, 10 11 ELIZABETH A. STRANGE Acting United States Attorney 12 District of Arizona 13 s/Daphne Banay 14 DAPHNE BANAY 15 Special Assistant United States Attorney 16 Of Counsel for the Defendant: 17 MATHEW W. PILE 18 Acting Regional Chief Counsel, Social Security Administration Office of the General Counsel, Region X 19 701 Fifth Avenue, Suite 2900 M/S 221A 20 Seattle, WA 98104-7075 21 22 23 24 25 26 27 28 2 Case 2:17-cv-01524-DJH Document 8 Filed 07/08/17 Page 3 of 3 1 2 CERTIFICATE OF SERVICE 3 I hereby certify that the foregoing Notice of Appearance was filed with the Clerk 4 of the Court on July 8, 2017, using the CM/ECF system which will send notification of 5 6 such filing to the following: Howard D. Olinsky. 7 8 s/Barbara Eadie BARBARA EADIE 9 Paralegal Specialist 10 Office of the General Counsel 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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

Case 2:17-cv-01524-DJH Document 9 Filed 08/11/17 Page 1 of 4 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Daphne Banay 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA21537 8 Fax: (206) 615-2531 daphne.banay@ssa.gov 9 Telephone: (206) 615-2113 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Angelica Ponce, No. CV-17-1524-PHX-DJH 14 15 Plaintiff, 16 ANSWER vs. 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 Defendant, in answer to Plaintiff’s complaint, admits, denies and alleges as 22 follows: 23 1. Defendant admits the allegations contained in paragraphs 1, 2, and 3. 24 25 Defendant further states that the Appeals Council’s action denying Plaintiff’s request for 26 review of the administrative law judge’s hearing decision made the administrative law 27 judge’s decision the final decision of the Commissioner of Social Security subject to 28 Case 2:17-cv-01524-DJH Document 9 Filed 08/11/17 Page 2 of 4 1 judicial review pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). 2 See 20 C.F.R. § 422.210. The action of the Appeals Council denying administrative 3 review is not subject to judicial review. 20 C.F.R. § 422.210. 4 5 2. With respect to the allegations contained in paragraph 4, Defendant neither 6 admits nor denies the digits of Plaintiff’s Social Security Number. Further, Defendant 7 lacks knowledge or information sufficient to form a belief as to the truth of Plaintiff’s 8 place of residence. 9 10 3. With respect to the allegations contained in paragraph 5, Defendant admits that 11 Nancy A. Berryhill is the Acting Commissioner of Social Security. Further, Defendant 12 admits that Acting Commissioner Berryhill succeeded to the duties and responsibilities of 13 14 the preceding Acting Commissioner Colvin. 15 4. Paragraphs 6, 7, and 8 of Plaintiff’s complaint constitute legal conclusions to 16 which no responsive pleading is required. To the extent that the court deems a responsive 17 18 pleading is necessary, Defendant denies the allegations. 19 5. The remainder of the Complaint constitutes legal conclusions and a Prayer for 20 Relief to which no response is deemed necessary. However, if the court requires a 21 response, Defendant denies the allegations and denies that Plaintiff is entitled to 22 23 judgment or to the relief sought. 24 6. With respect to Plaintiff's request that an attorney's fee be awarded by the court, 25 should Plaintiff prevail and file an application for fees against the United States in 26 27 accordance with the requirements of 28 U.S.C. § 2412, enacted as part of the Equal 28 Access to Justice Act, the Commissioner reserves the right to oppose any award under 2 Case 2:17-cv-01524-DJH Document 9 Filed 08/11/17 Page 3 of 4 1 this statute. 2 7. Defendant denies each and every allegation of the Complaint not otherwise 3 specifically admitted, denied or qualified. 4 5 8. The findings of fact of the Commissioner of Social Security, are supported by 6 substantial evidence and are conclusive. 7 9. In accordance with section 205(g) of the Social Security Act, 42 U.S.C. 8 § 405(g), Defendant files as part of the answer a certified copy of the transcript of the 9 10 record including the evidence upon which the findings and decisions complained of are 11 based. 12 10. WHEREFORE, Defendant prays for a judgment dismissing the Complaint, 13 14 with costs and disbursements, and for a judgment in accordance with section 205(g) of 15 the Social Security Act, 42 U.S.C. § 405(g), affirming the agency decision. 16 DATED this 11th day of August 2017. 17 18 Respectfully submitted, 19 ELIZABETH A. STRANGE Acting United States Attorney 20 District of Arizona 21 s/Daphne Banay 22 DAPHNE BANAY 23 Special Assistant United States Attorney 24 25 Of Counsel for the Defendant: 26 MATHEW W. PILE 27 Acting Regional Chief Counsel, Social Security Administration Office of the General Counsel, Region X 28 701 Fifth Avenue, Suite 2900 M/S 221A 3 Case 2:17-cv-01524-DJH Document 9 Filed 08/11/17 Page 4 of 4 1 Seattle, WA 98104-7075 2 3 4 5 6 7 CERTIFICATE OF SERVICE 8 I hereby certify that the foregoing Answer was filed with the Clerk of the 9 Court on August 11, 2017, using the CM/ECF system, which will send notification 10 of such filing to the following: Howard D Olinsky. 11 12 13 s/Timothy Shaw TIMOTHY SHAW 14 Paralegal Specialist 15 Office of the General Counsel 16 17 18 19 20 21 22 23 24 25 26 27 28 4

NOTICE of Filing Certified Copy of Administrative Transcript filed by Commissioner of Social Security Administration.

Case 2:17-cv-01524-DJH Document 10 Filed 08/11/17 Page 1 of 2 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Daphne Banay 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA21537 8 Fax: (206) 615-2531 daphne.banay@ssa.gov 9 Telephone: (206) 615-2113 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Angelica Ponce, No. CV-17-1524-PHX-DJH 14 15 Plaintiff, 16 NOTICE OF FILING CERTIFIED vs. ADMINISTRATIVE/TRANSCRIPT 17 OF RECORD Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 PLEASE TAKE NOTICE the Acting Commissioner of the Social Security 22 Administration, by and through Daphne Banay, Special Assistant United States 23 Attorney for the District of Arizona, files herein in accordance with section 205(g) of the 24 25 Social Security Act, 42 U.S.C. § 405(g), as part of the answer a certified electronic copy 26 of the transcript of the record including the evidence upon which the findings and 27 decision complained of are based. In addition, a paper copy was delivered to the court. 28 Case 2:17-cv-01524-DJH Document 10 Filed 08/11/17 Page 2 of 2 1 DATED this 11th day of August 2017. 2 3 Respectfully submitted, 4 ELIZABETH A. STRANGE 5 Acting United States Attorney District of Arizona 6 s/Daphne Banay 7 DAPHNE BANAY 8 Special Assistant United States Attorney 9 Of Counsel for the Defendant: 10 MATHEW W. PILE 11 Acting Regional Chief Counsel, Social Security Administration 12 Office of the General Counsel, Region X 701 Fifth Avenue, Suite 2900 M/S 221A 13 Seattle, WA 98104-7075 14 15 16 17 18 CERTIFICATE OF SERVICE 19 20 I hereby certify that the foregoing Notice of Filing Certified 21 Administrative/Transcript of Record was filed with the Clerk of the Court on 22 August 11, 2017, using the CM/ECF system, which will send notification of such 23 filing to the following: Howard D Olinsky. 24 25 26 s/Timothy Shaw TIMOTHY SHAW 27 Paralegal Specialist 28 Office of the General Counsel 2

001 Certification Page

Case D 2: 17-cv-01524-DJH Document 10-1 Filed 08/11/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ANGELICA PONCE Plaintiff VS.) CIVIL ACTION NO. 2: 17-CV-01524 NANCY A. BERRYHILL ACTING COMMISSIONER OF SOCIAL SECURITY Defendant CERTIFICATION The undersigned, as Chief, Court Case Preparation and Review Branch 1, Office of Appellate Operations, Office of Disability Adjudication and Review, Social Security Administration, hereby certifies that the documents annexed hereto constitute a full and accurate transcript of the entire record of proceedings relating to this case. LL Sorrender NANCY CHUNG Date: July 14, 2017 * * * Certified Administrative Records (CAR) are not compatible with Optical Character Recognition (OCR), therefore the Agency cannot provide a OCR searchable CAR.

002 Court Transcript Index

Case 2:17-cv-01524-DJH Document 10-2 Filed 08/11/17 Page 1 of 4 Court Transcript Index Civil Action Number: 2:17-CV-01524 Claimant: Angelica Ponce Account Number: 614-09-2146 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 03/16/2017 1-8 8 AC Correspondence (ACCORR), dated 02/09/2016 9-12 4 Appointment of Representative (1696), dated 01/19/2016 13-14 2 AC Correspondence (ACCORR), dated 12/21/2015 15-22 8 Request for Review of Hearing Decision/Order (HA 520), dated 23-24 2 10/09/2015 ALJ Hearing Decision (ALJDEC), dated 09/17/2015 25-50 26 Transcript of Oral Hearing (TRANHR), dated 08/24/2015 51-77 27 Exhibits Exhibit No. of No. Description Page No. Pages 1A Initial T2 DDE: No PRFC or MRFC, dated 05/07/2013 78-85 8 2A Initial Disability Determination by State Agency, Title II, dated 86 1 05/07/2013 3A Recon T2 DDE: PRFC by A. Mararil, M.D., dated 09/17/2013 87-97 11 4A Reconsideration Disability Determination by State Agency, 98 1 Title XVI, dated 09/17/2013 1B Representative Fee Agreement-Brad Myler, dated 99 1 07/18/2012 2B Appointment of Representative-Brad Myler, dated 100 1 07/18/2012 3B T2 Notice of Disapproved Claim, dated 05/07/2013 101-111 11 4B Request for Reconsideration, dated 06/10/2013 112 1 5B T2 Disability Reconsideration Notice, dated 09/17/2013 113-121 9 6B Request for Hearing by ALJ, dated 11/08/2013 122-123 2 7B Request for Hearing Acknowledgement Letter, dated 124-133 10 11/21/2013 8B Hearing Notice, dated 06/17/2015 134-169 36 9B Request for Postponement, dated 06/29/2015 170 1 10B Representative Fee Agreement-Co-Rep Tanya Norris, 171-172 2 dated 08/03/2015 11B Appointment of Representative-Co-Rep Tanya Norris, dated 173 1 08/03/2015 1D Application for Disability Insurance Benefits, dated 174-178 5 07/23/2012 2D New Hire, Quarter Wage, Unemployment Query (NDNH), 179 1 dated 08/30/2014 3D Certified Earnings Records, dated 08/30/2014 180-181 2 4D Detailed Earnings Query, dated 08/30/2014 182-185 4 5D Summary Earnings Query, dated 08/30/2014 186 1 DATE: July 14, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 2:17-cv-01524-DJH Document 10-2 Filed 08/11/17 Page 2 of 4 Court Transcript Index Civil Action Number: 2:17-CV-01524 Claimant: Angelica Ponce Account Number: 614-09-2146 Exhibits Exhibit No. of No. Description Page No. Pages 6D Certified Earnings Records, dated 02/26/2015 187-188 2 7D New Hire, Quarter Wage, Unemployment Query (NDNH), 189 1 dated 02/26/2015 8D Detailed Earnings Query, dated 02/26/2015 190-193 4 9D Summary Earnings Query, dated 02/26/2015 194 1 10D New Hire, Quarter Wage, Unemployment Query (NDNH), 195 1 dated 08/03/2015 11D Certified Earnings Records-2008-$13719, 2009-$15173, 196-198 3 2010-$15602, 2011-$18922, 2012-$19044, 2013-$17891 and 2014-$12316, dated 08/03/2015 12D MBR Query-Abbreviated, dated 08/03/2015 199 1 13D Detailed Earnings Query-2008-$13719, 2009-$15173, 2010-200-203 4 $15602, 2011-$18922, 2012-$19044, 2013-$17891 and 2014-$12316, dated 08/03/2015 14D Summary Earnings Query-2008-$13719, 2009-$15173, 204 1 2010-$15602, 2011-$18922, 2012-$19044, 2013-$17891 and 2014-$12316, dated 08/03/2015 15D New Hire, Quarter Wage, Unemployment Query (NDNH)-205 1 None, dated 08/20/2015 1E Work History Report, dated 06/22/2012, from Claimant 206-215 10 2E Disability Report-Field Office, dated 07/23/2012, from Field 216-217 2 Office 3E Disability Report-Adult, dated 08/09/2012, from Claimant 218-224 7 4E Work History Report, dated 12/13/2012, from Claimant 225-238 14 5E Pain Questionnaire/Report, dated 12/13/2012, from 239-241 3 Claimant 6E Function Report-Adult, dated 12/13/2012, from Claimant 242-250 9 7E Disability Report-Appeals, dated 06/17/2013, from Claimant 251-256 6 8E Disability Report-Appeals, dated 11/13/2013, from Claimant 257-263 7 9E Exhibit List to Rep PH2E, dated 08/30/2014, from ODAR 264-276 13 10E Representative Correspondence, dated 03/03/2015 277-287 11 11E Resume of Vocational Expert-Tracy Horwin Young, dated 288 1 07/16/2015, from ABQ NHC 12E Disability Report-Field Office, dated 06/17/2013 289-290 2 13E Disability Report-Field Office, dated 11/13/2013 291-292 2 14E Report of Contact, dated 09/14/2015 293 1 15E Representative Brief, dated 10/12/2015 294-295 2 1F Office Treatment Records-(headache, foot pain), dated 296-333 38 05/20/2010 to 02/12/2013, from Pomona Mission Medical Clinic DATE: July 14, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 2:17-cv-01524-DJH Document 10-2 Filed 08/11/17 Page 3 of 4 Court Transcript Index Civil Action Number: 2:17-CV-01524 Claimant: Angelica Ponce Account Number: 614-09-2146 Exhibits Exhibit No. of No. Description Page No. Pages 2F CE Internal Medicine, dated 04/24/2013, from S & L Medical 334-340 7 Group 3F Office Treatment Records, dated 02/28/2013 to 06/25/2013, 341-348 8 from Pomona Mission Medical Clinic 4F Misc Medical Records, dated 08/07/2014 to 08/07/2014, from 349-350 2 AZ Tech Radiology 5F Misc Medical Records, dated 07/25/2013 to 02/13/2015, from 351-368 18 Banner Casa Grande Medical Center 6F Office Treatment Records, dated 03/03/2015 to 03/03/2015, 369-371 3 from AZ Endocrine Institute PC 7F Progress Notes, dated 09/26/2013 to 03/10/2015, from 372-396 25 Arizona Advanced Urology 8F Progress Notes, dated 04/02/2015, from Arizona Advanced 397-400 4 Urology 9F Office Treatment Records, dated 01/08/2013 to 08/16/2013, 401-428 28 from Sun Life Family Health Center 10F Office Treatment Records, dated 08/27/2013 to 02/26/2015, 429-522 94 from Sun Life Family Health Center 11F Radiology Report, dated 03/11/2015, from AZ-Tech 523-525 3 Radiology 12F Office Treatment Records, dated 03/05/2015 to 03/27/2015, 526-532 7 from Az Endocrine Institute PC 13F Laboratory Test Report, dated 02/26/2015, from Sun Life 533-535 3 Family Health Center 14F Office Treatment Records, dated 02/20/2015, from Internal 536-540 5 Medicine Health Center 15F Office Treatment Records-Biren Patel MD, dated 541-557 17 04/04/2015 to 07/14/2015, from Arizona Advanced Urology 16F Medical Evaluation/Case Analysis, dated 03/22/2013, from 558 1 Robert Keeley, M.D 17F Medical Evaluation/Case Analysis, dated 09/17/2013, from 559 1 SSA OMVE FDDS 18F Office Treatment Records, dated 01/08/2013 to 08/16/2013, 560-589 30 from Sun Life Family Health Center 19F Office Treatment Records, dated 08/27/2013 to 03/04/2015, 590-685 96 from Sun Life Family Health Center 20F Office Treatment Records-Protosh Pawar Md, PhD,, dated 686-690 5 08/05/2015, from Brain and Spine Center 21F Office Treatment Records-Jeanne Parrish NP, dated 691-696 6 05/21/2015 to 05/21/2015, from CENTER FOR LIVER AND HEPATOBILLARY DISEASE DATE: July 14, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 2:17-cv-01524-DJH Document 10-2 Filed 08/11/17 Page 4 of 4 Court Transcript Index Civil Action Number: 2:17-CV-01524 Claimant: Angelica Ponce Account Number: 614-09-2146 Exhibits Exhibit No. of No. Description Page No. Pages 22F Office Treatment Records-Shawn Gorsline PT DPT, dated 697-703 7 06/09/2015 to 06/09/2015, from Petersen Carling PT Maricopa 23F Office Treatment Records-Kelly Griffin FNP, dated 704-734 31 03/10/2015 to 09/02/2015, from SUNLIFE FAMILY HEALTH CENTER 24F Medical Evidence of Record, dated 08/24/2015 to 735-747 13 08/26/2015, from BANNER CASA GRANDE MEDIAL CENTER 25F Office Treatment Records-Includes Labs, dated 02/11/2015 748-807 60 to 09/02/2015, from Sun Life Family Center DATE: July 14, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable.

003 Documents Related to Administrative Process Including Transcript of Oral He

Case 2:17-cv-01524-DJH Document 10-3 Filed 08/11/17 Page 1 of 78 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable Civil Action Number: 2:17-CV-01524 Claimant: Angelica Ponce Account Number: 614-09-2146 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 03/16/2017 1-8 8 AC Correspondence (ACCORR), dated 02/09/2016 9-12 4 Appointment of Representative (1696), dated 01/19/2016 13-14 2 AC Correspondence (ACCORR), dated 12/21/2015 15-22 8 Request for Review of Hearing Decision/Order (HA 520), dated 23-24 2 10/09/2015 ALJ Hearing Decision (ALJDEC), dated 09/17/2015 25-50 26 Transcript of Oral Hearing (TRANHR), dated 08/24/2015 51-77 27 DATE: July 14, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77

004 Payment Documents and Decisions

Case 2:17-cv-01524-DJH Document 10-4 Filed 08/11/17 Page 1 of 22 Payment Documents and Decisions Civil Action Number: 2:17-CV-01524 Claimant: Angelica Ponce Account Number: 614-09-2146 Exhibits Exhibit No. of No. Description Page No. Pages 1A Initial T2 DDE: No PRFC or MRFC, dated 05/07/2013 78-85 8 2A Initial Disability Determination by State Agency, Title II, dated 86 1 05/07/2013 3A Recon T2 DDE: PRFC by A. Mararil, M.D., dated 09/17/2013 87-97 11 4A Reconsideration Disability Determination by State Agency, 98 1 Title XVI, dated 09/17/2013 DATE: July 14, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98

005 Jurisdictional Documents and Notices

Case 2:17-cv-01524-DJH Document 10-5 Filed 08/11/17 Page 1 of 76 Jurisdictional Documents and Notices Civil Action Number: 2:17-CV-01524 Claimant: Angelica Ponce Account Number: 614-09-2146 Exhibits Exhibit No. of No. Description Page No. Pages 1B Representative Fee Agreement-Brad Myler, dated 99 1 07/18/2012 2B Appointment of Representative-Brad Myler, dated 100 1 07/18/2012 3B T2 Notice of Disapproved Claim, dated 05/07/2013 101-111 11 4B Request for Reconsideration, dated 06/10/2013 112 1 5B T2 Disability Reconsideration Notice, dated 09/17/2013 113-121 9 6B Request for Hearing by ALJ, dated 11/08/2013 122-123 2 7B Request for Hearing Acknowledgement Letter, dated 124-133 10 11/21/2013 8B Hearing Notice, dated 06/17/2015 134-169 36 9B Request for Postponement, dated 06/29/2015 170 1 10B Representative Fee Agreement-Co-Rep Tanya Norris, 171-172 2 dated 08/03/2015 11B Appointment of Representative-Co-Rep Tanya Norris, dated 173 1 08/03/2015 DATE: July 14, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173

006 Non Disability Related Development

Case 2:17-cv-01524-DJH Document 10-6 Filed 08/11/17 Page 1 of 33 Non Disability Related Development Civil Action Number: 2:17-CV-01524 Claimant: Angelica Ponce Account Number: 614-09-2146 Exhibits Exhibit No. of No. Description Page No. Pages 1D Application for Disability Insurance Benefits, dated 174-178 5 07/23/2012 2D New Hire, Quarter Wage, Unemployment Query (NDNH), 179 1 dated 08/30/2014 3D Certified Earnings Records, dated 08/30/2014 180-181 2 4D Detailed Earnings Query, dated 08/30/2014 182-185 4 5D Summary Earnings Query, dated 08/30/2014 186 1 6D Certified Earnings Records, dated 02/26/2015 187-188 2 7D New Hire, Quarter Wage, Unemployment Query (NDNH), 189 1 dated 02/26/2015 8D Detailed Earnings Query, dated 02/26/2015 190-193 4 9D Summary Earnings Query, dated 02/26/2015 194 1 10D New Hire, Quarter Wage, Unemployment Query (NDNH), 195 1 dated 08/03/2015 11D Certified Earnings Records-2008-$13719, 2009-$15173, 196-198 3 2010-$15602, 2011-$18922, 2012-$19044, 2013-$17891 and 2014-$12316, dated 08/03/2015 12D MBR Query-Abbreviated, dated 08/03/2015 199 1 13D Detailed Earnings Query-2008-$13719, 2009-$15173, 2010-200-203 4 $15602, 2011-$18922, 2012-$19044, 2013-$17891 and 2014-$12316, dated 08/03/2015 14D Summary Earnings Query-2008-$13719, 2009-$15173, 204 1 2010-$15602, 2011-$18922, 2012-$19044, 2013-$17891 and 2014-$12316, dated 08/03/2015 15D New Hire, Quarter Wage, Unemployment Query (NDNH)-205 1 None, dated 08/20/2015 DATE: July 14, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205

007 Disability Related Development

Case 2:17-cv-01524-DJH Document 10-7 Filed 08/11/17 Page 1 of 91 Disability Related Development Civil Action Number: 2:17-CV-01524 Claimant: Angelica Ponce Account Number: 614-09-2146 Exhibits Exhibit No. of No. Description Page No. Pages 1E Work History Report, dated 06/22/2012, from Claimant 206-215 10 2E Disability Report-Field Office, dated 07/23/2012, from Field 216-217 2 Office 3E Disability Report-Adult, dated 08/09/2012, from Claimant 218-224 7 4E Work History Report, dated 12/13/2012, from Claimant 225-238 14 5E Pain Questionnaire/Report, dated 12/13/2012, from 239-241 3 Claimant 6E Function Report-Adult, dated 12/13/2012, from Claimant 242-250 9 7E Disability Report-Appeals, dated 06/17/2013, from Claimant 251-256 6 8E Disability Report-Appeals, dated 11/13/2013, from Claimant 257-263 7 9E Exhibit List to Rep PH2E, dated 08/30/2014, from ODAR 264-276 13 10E Representative Correspondence, dated 03/03/2015 277-287 11 11E Resume of Vocational Expert-Tracy Horwin Young, dated 288 1 07/16/2015, from ABQ NHC 12E Disability Report-Field Office, dated 06/17/2013 289-290 2 13E Disability Report-Field Office, dated 11/13/2013 291-292 2 14E Report of Contact, dated 09/14/2015 293 1 15E Representative Brief, dated 10/12/2015 294-295 2 DATE: July 14, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295

008 Medical Records Part 1

Case 2:17-cv-01524-DJH Document 10-8 Filed 08/11/17 Page 1 of 246 Medical Records Civil Action Number: 2:17-CV-01524 Claimant: Angelica Ponce Account Number: 614-09-2146 Exhibits Exhibit No. of No. Description Page No. Pages 1F Office Treatment Records-(headache, foot pain), dated 296-333 38 05/20/2010 to 02/12/2013, from Pomona Mission Medical Clinic 2F CE Internal Medicine, dated 04/24/2013, from S & L Medical 334-340 7 Group 3F Office Treatment Records, dated 02/28/2013 to 06/25/2013, 341-348 8 from Pomona Mission Medical Clinic 4F Misc Medical Records, dated 08/07/2014 to 08/07/2014, from 349-350 2 AZ Tech Radiology 5F Misc Medical Records, dated 07/25/2013 to 02/13/2015, from 351-368 18 Banner Casa Grande Medical Center 6F Office Treatment Records, dated 03/03/2015 to 03/03/2015, 369-371 3 from AZ Endocrine Institute PC 7F Progress Notes, dated 09/26/2013 to 03/10/2015, from 372-396 25 Arizona Advanced Urology 8F Progress Notes, dated 04/02/2015, from Arizona Advanced 397-400 4 Urology 9F Office Treatment Records, dated 01/08/2013 to 08/16/2013, 401-428 28 from Sun Life Family Health Center 10F Office Treatment Records, dated 08/27/2013 to 02/26/2015, 429-522 94 from Sun Life Family Health Center 11F Radiology Report, dated 03/11/2015, from AZ-Tech 523-525 3 Radiology 12F Office Treatment Records, dated 03/05/2015 to 03/27/2015, 526-532 7 from Az Endocrine Institute PC 13F Laboratory Test Report, dated 02/26/2015, from Sun Life 533-535 3 Family Health Center 14F Office Treatment Records, dated 02/20/2015, from Internal 536-540 5 Medicine Health Center DATE: July 14, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540

009 Medical Records Part 2

Case 2:17-cv-01524-DJH Document 10-9 Filed 08/11/17 Page 1 of 208 Medical Records Civil Action Number: 2:17-CV-01524 Claimant: Angelica Ponce Account Number: 614-09-2146 Exhibits Exhibit No. of No. Description Page No. Pages 15F Office Treatment Records-Biren Patel MD, dated 541-557 17 04/04/2015 to 07/14/2015, from Arizona Advanced Urology 16F Medical Evaluation/Case Analysis, dated 03/22/2013, from 558 1 Robert Keeley, M.D 17F Medical Evaluation/Case Analysis, dated 09/17/2013, from 559 1 SSA OMVE FDDS 18F Office Treatment Records, dated 01/08/2013 to 08/16/2013, 560-589 30 from Sun Life Family Health Center 19F Office Treatment Records, dated 08/27/2013 to 03/04/2015, 590-685 96 from Sun Life Family Health Center 20F Office Treatment Records-Protosh Pawar Md, PhD,, dated 686-690 5 08/05/2015, from Brain and Spine Center 21F Office Treatment Records-Jeanne Parrish NP, dated 691-696 6 05/21/2015 to 05/21/2015, from CENTER FOR LIVER AND HEPATOBILLARY DISEASE 22F Office Treatment Records-Shawn Gorsline PT DPT, dated 697-703 7 06/09/2015 to 06/09/2015, from Petersen Carling PT Maricopa 23F Office Treatment Records-Kelly Griffin FNP, dated 704-734 31 03/10/2015 to 09/02/2015, from SUNLIFE FAMILY HEALTH CENTER 24F Medical Evidence of Record, dated 08/24/2015 to 735-747 13 08/26/2015, from BANNER CASA GRANDE MEDIAL CENTER DATE: July 14, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747

010 Medical Records Part 3

Case 2:17-cv-01524-DJH Document 10-10 Filed 08/11/17 Page 1 of 61 Medical Records Civil Action Number: 2:17-CV-01524 Claimant: Angelica Ponce Account Number: 614-09-2146 Exhibits Exhibit No. of No. Description Page No. Pages 25F Office Treatment Records-Includes Labs, dated 02/11/2015 748-807 60 to 09/02/2015, from Sun Life Family Center DATE: July 14, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 748 749 750 751 752 753 754 755 756 757 758 759 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 788 789 790 791 792 793 794 795 796 797 798 799 800 801 802 803 804 805 806 807

MOTION for Extension of Time to File Opening Brief by Angelica Ponce.

Case 2:17-cv-01524-DJH Document 11 Filed 10/10/17 Page 1 of 2 1 Howard D. Olinsky 2 Olinsky Law Group 300 South State Street 3 Suite 420 4 Syracuse, NY 13202 N.Y. Bar No. 2044865 5 Telephone: (315) 701-5780 6 Facsimile: (315) 701-5781 holinsky@windisability.com 7 8 Attorney pro hac vice for Plaintiff 9 UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF ARIZONA 11 Angelica Ponce, 12 Plaintiff, 13 v. No. 2:17-CV-1524-DJH 14 Commissioner of Social Security, 15 Defendant. 16 __________________________________ 17 UNOPPOSED MOTION FOR EXTENSION OF TIME 18 (First Request) 19 Plaintiff, Angelica Ponce, through counsel, Howard D. Olinsky, Esq., moves for 20 extension of time of thirty days, up to and including November 9, 2017, to file her 21 22 Opening Brief. The Opening brief is currently due Tuesday, October 10, 2017. 23 Counsel for Plaintiff requests this extension of time due to a combination of 24 unexpected staffing changes and simultaneous deadlines, which prevent completion of 25 26 the brief by the current deadline. Counsel expects no further requests of this kind. 27 28 1 Case 2:17-cv-01524-DJH Document 11 Filed 10/10/17 Page 2 of 2 1 Counsel’s office contacted the Defendant’s counsel, who indicated the acting 2 Commissioner does not object to this extension. 3 4 Respectfully submitted this 10th day of October, 2017 5 6 BY: s/Howard D. Olinsky 7 Howard D. Olinsky, Esq. 8 Attorney for Plaintiff, Pro Hac Vice 9 CERTIFICATE OF SERVICE 10 11 Service of this document was made to Daphne Banay, Esq., counsel for defendant 12 Acting Commissioner, by the CM/ECF system that generated a notice of electronic filing 13 to all registered users of the CM/ECF system. Service was accomplished as of the date 14 15 that is stamped on the filed document by the CMECF system.. 16 17/s/Howard D. Olinsky 18 Howard D. Olinsky, Esq. 19 20 21 22 23 24 25 26 27 28 2

MOTION for Extension of Time to File Corrected by Angelica Ponce.

Case 2:17-cv-01524-DJH Document 12 Filed 10/10/17 Page 1 of 2 1 Howard D. Olinsky 2 Olinsky Law Group 300 South State Street 3 Suite 420 4 Syracuse, NY 13202 N.Y. Bar No. 2044865 5 Telephone: (315) 701-5780 6 Facsimile: (315) 701-5781 holinsky@windisability.com 7 8 Attorney pro hac vice for Plaintiff 9 UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF ARIZONA 11 Angelica Ponce, 12 Plaintiff, 13 v. No. 2:17-CV-1524-DJH 14 Commissioner of Social Security, 15 Defendant. 16 __________________________________ 17 UNOPPOSED MOTION FOR EXTENSION OF TIME 18 (First Request) 19 Plaintiff, Angelica Ponce, through counsel, Howard D. Olinsky, Esq., moves for 20 extension of time of thirty days, up to and including November 9, 2017, to file her 21 22 Opening Brief. The Opening brief is currently due Tuesday, October 10, 2017. 23 Counsel for Plaintiff requests this extension of time due to a combination of 24 unexpected staffing changes and simultaneous deadlines, which prevent completion of 25 26 the brief by the current deadline. Counsel expects no further requests of this kind. 27 28 1 Case 2:17-cv-01524-DJH Document 12 Filed 10/10/17 Page 2 of 2 1 Counsel’s office contacted the Defendant’s counsel, who indicated the acting 2 Commissioner does not object to this extension. 3 4 Respectfully submitted this 10th day of October, 2017 5 6 BY: s/Howard D. Olinsky 7 Howard D. Olinsky, Esq. 8 Attorney for Plaintiff, Pro Hac Vice 9 CERTIFICATE OF SERVICE 10 11 Service of this document was made to Daphne Banay, Esq., counsel for defendant 12 Acting Commissioner, by the CM/ECF system that generated a notice of electronic filing 13 to all registered users of the CM/ECF system. Service was accomplished as of the date 14 15 that is stamped on the filed document by the CMECF system.. 16 17/s/Howard D. Olinsky 18 Howard D. Olinsky, Esq. 19 20 21 22 23 24 25 26 27 28 2

Text of Proposed Order Proposed Order

Case 2:17-cv-01524-DJH Document 12-1 Filed 10/10/17 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Angelica Ponce, Plaintiff, v. No. 2:17-CV-1524-DJH Commissioner of Social Security, Defendant. ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE OPENING BRIEF This unopposed Motion for first extension of time seeks an extension of time from October 10, 2017 to November 9, 2017 for Plaintiff to file her Opening Brief in this Social Security disability appeal. Counsel indicates that the motion is unopposed by defendant Acting Commissioner. Having considered the unopposed Motion and in consideration of the Counsel’s good cause shown, this Court concludes that the unopposed motion for first extension of time should be granted. It is hereby ORDERED that the unopposed Motion for first extension of time is GRANTED, and the extension of thirty days is allowed such that the Opening Brief shall be filed on or before November 9, 2017. DATED this _______ day of _____________, 20__ ___________ ___________________ Honorable Diane J. Humetewa United States District Court Judge

ORDER granting the [11], [12] Motions for Extension of Time and Plaintiffshall have up to and including November 9, 2017 to file an Opening Brief. Signed by Judge Diane J Humetewa on 10/10/2017.(LFIG)

Case 2:17-cv-01524-DJH Document 13 Filed 10/10/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Angelica Ponce, No. CV-17-01524-PHX-DJH 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 This matter is before the Court on Plaintiff’s Unopposed Motion for Extension of 16 Time (First Request) (Doc. 11) and Unopposed Motion for Extension of Time (First 17 Request) (Doc. 12), both filed on the current deadline date of October, 10, 2017. 18 Upon review by the Court, there being no opposition from Defendant, 19 IT IS ORDERED that the motions (Docs. 11-12) are GRANTED and that Plaintiff 20 shall have up to and including November 9, 2017 to file an Opening Brief. 21 Dated this 10th day of October, 2017. 22 23 Honorable Diane J. Humetewa 24 United States District Judge 25 26 27 28

OPENING BRIEF by Angelica Ponce.

Case 2:17-cv-01524-DJH Document 14 Filed 11/09/17 Page 1 of 16 1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 300 South State Street, Suite 420 4 Syracuse, NY 13202 NY State Bar No. 2044865 5 Telephone: (315) 701-5780 6 Facsimile: (315) 701-5781 holinsky@windisability.com 7 Attorney for Plaintiff Angelica Ponce 8 IN THE UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 Angelica Ponce, 11 Plaintiff, 12 Civil No. 2:17-CV-01524-DJH 13 vs. 14 Nancy A. Berryhill, PLAINTIFF’S OPENING BRIEF 15 Acting Commissioner of Social 16 Security, 17 Defendant 18 PLAINTIFF’S OPENING BRIEF 19 IN SUPPORT OF A SOCIAL SECURITY APPEAL SUBMITTED PURSUANT TO ORDER DIRECTING FILING OF 20 BRIEFS [DKT. NO. 6] AND LOC. R. CIV. P. 16.1 21 I. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 22 23 1. The ALJ erred by failing to include mental limitations in the RFC, despite finding Plaintiff has mild limitations in completing activities of daily 24 living, and concentration, persistence, or pace. 25 2. The ALJ’s adverse credibility determination failed to provide clear and 26 convincing reasons for discounting Plaintiff’s testimony regarding 27 functional limitations stemming from her impairments. 28 II. STATEMENT OF THE CASE Page 1 Case 2:17-cv-01524-DJH Document 14 Filed 11/09/17 Page 2 of 16 1 2 (A) Administrative Proceedings 3 On July 19, 2012, Plaintiff Angelica Ponce ("Plaintiff") protectively filed an 4 application for Title II Social Security Disability Insurance ("SSDI"), alleging disability 5 6 beginning on August 1, 2007. Administrative Transcript ("T") 31, 174. Plaintiff’s 7 application was initially denied on May 17, 2013, and denied upon reconsideration on 8 September 17, 2013. T 31, 113. Plaintiff requested a hearing, occurring on August 24, 9 2015, before the Honorable Administrative Law Judge MaryAnn Lunderman ("ALJ"). T 10 11 51-77. On September 17, 2015, the ALJ found Plaintiff not disabled at Step 5 of the 12 sequential evaluation process. T 30-44. The Appeals Council denied Plaintiff’s 13 requested review, leaving the ALJ’s decision as the final agency decision. T 1. Plaintiff 14 15 filed the instant action seeking judicial review. Dkt. No. 1. This Court has jurisdiction. 16 42 U.S.C. § 405(g) 17 The Social Security Administration ("SSA") has promulgated a five-step 18 19 sequential evaluation process for use in making disability determinations. See 20 C.F.R. 20 §§ 404.1520(a), 416.920(a). The ALJ’s decision described the five-step process. T 32– 21 33. At Step 1, the ALJ found Plaintiff remained insured for Title II until December 31, 22 23 2018, and had engaged in substantial gainful activity in 2009 through 2014. T 33. At 24 Step 2, the ALJ found severe impairments of degenerative disc disease ("DDD"), 25 arthralgias and myalgias, and arthritis. T 34. At Step 3, the ALJ found these 26 27 impairments did not meet or equal a listing. T 35. The ALJ found Plaintiff capable of a 28 residual functional capacity ("RFC") of "medium" work with the following limitations, Page 2 Case 2:17-cv-01524-DJH Document 14 Filed 11/09/17 Page 3 of 16 1 Pushing/pulling and reaching overhead are unlimited except as to the 2 limitations established for lifting/carrying. The climbing of ramps and stairs is limited to frequently but the climbing of ladders, ropes, or scaffolds must 3 be entirely precluded from duties as assigned. Finally, balancing, kneeling, 4 and crouching (bending at the knees) are limited to frequently while stooping (bending at the waist) and crawling are further limited to occasionally. 5 6 T 36. At Step 4, the ALJ determined, based upon vocational expert ("VE") testimony 7 that Plaintiff could perform past relevant work, and made an alternate Step 5 finding of 8 additional work Plaintiff could perform. T 42-43. The ALJ thus reached the fifth step in 9 the disability analysis and determined, based upon VE testimony, that she could engage 10 11 in other work as a machine packager, hospital food service worker, and dining attendant. 12 T 43-44. 13 III. STATEMENT OF FACTS 14 15 (A) Plaintiff’s Age, Education, & Work History 16 Born in 1959, Plaintiff was 48 years old at the AOD, and 56 years old on the date 17 of decision. T 78. Plaintiff went to high school in Mexico, but did not graduate, and can 18 19 speak and read in English, but cannot write. T 42, 69. The VE classified Plaintiff’s past 20 work as an order picker and hand packager. T 50. 21 (B) Medical Evidence 22 23 Seung Ha Lim, M.D., performed a consultative evaluation of Plaintiff on April 24, 24 2013. T 334-39. Plaintiff reported back and neck pain that radiates to her left upper 25 26 extremity, which will become worse with bending, lifting, walking, standing, or sitting. 27 T 336. Plaintiff also indicated holocranial headaches which occur almost every day, with 28 associated nausea. T 336. Upon examination Dr. Ha Lim observed pain with decreased Page 3 Case 2:17-cv-01524-DJH Document 14 Filed 11/09/17 Page 4 of 16 1 range of motion and extension in the neck. T 338. Dr. Ha Lim also noted pain with 2 range of motion in the back with 70/90 degrees of flexion. T 338. 3 4 David J. Weitz, M.D., read imaging of Plaintiff’s lumbar spine on July 25, 2013. 5 T 421. Dr. Weitz indicated that the imaging showed moderate L5-S1 intervertebral disc 6 space narrowing. T 421. On that same day, thoracic spine X-rays indicated kyphosis of 7 8 the thoracic spine, and multilevel degenerative disc and joint disease of the mid to lower 9 thoracic spine. T 422. 10 Plaintiff presented to Jennifer Carlile, FNP-C, on December 11, 2013 reporting 11 chronic neck and back pain. T 494. Plaintiff reported pain throughout her entire body 12 13 which had been occurring for two years, and was worse in the neck and back. T 494. 14 Plaintiff was in a motor vehicle accident and treated for lumbar disc protrusions, with no 15 improvement in pain. T 494. Plaintiff indicated sharp, constant, and sometimes stabbing 16 17 pain in the lower back and neck which radiates into the bilateral legs and arms with on 18 and off numbness, worse on left side. T 494. FNP Carlile observed pain with palpation 19 to cervical and lumbar paraspinous area, worse on left side. T 496. 20 21 On September 29, 2014, Plaintiff reported to Marilee Erying, FNP-C, for head, 22 shoulder, and leg pain at a 9/10 pain scale. T 455. FNP Erying indicated that upon 23 examination Plaintiff had pain elicited by range of motion in the knee, wrist, and both 24 25 hips. T 45. On August 5, 2014, FNP Erying indicated that Plaintiff had trouble bending 26 her knees. T 468. FNP Erying observed that Plaintiff could not squat, and could not 27 bend to get to the floor. T 468. 28 Page 4 Case 2:17-cv-01524-DJH Document 14 Filed 11/09/17 Page 5 of 16 1 On August 21, 2014, Plaintiff presented to FNP Erying with loss of interest, 2 weight loss, and loss of appetite. T 457. Plaintiff reported daytime drowsiness, as well 3 4 as wrist and knee pain. T 457. FNP Erying prescribed bilateral wrist splints and 5 Tramadol for pain, and referred her to an orthopedist for wrist pain and degenerative joint 6 knee pain. T 461. Imaging revealed narrowing of the joint space, and indicated 7 8 degenerative changes of the knee. T 463. 9 Plaintiff appeared to rheumatologist Gabriel Colceriu, M.D., on February 20, 10 2015, after a referral for joint pain. T 536. Plaintiff reported global pain from her head 11 to toes, but that her knees were the worst, specifically the left. T 536. Plaintiff also 12 13 indicated that she feels stiff in the morning, but more swollen at night, and that her pain 14 was exacerbated with prolonged ambulation to the point that she needed to grab onto 15 something for support. T 536. Plaintiff reported muscle pain, burning sensations on her 16 17 skin, being fatigued, difficulty falling asleep and staying asleep, daily headaches, 18 increased forgetfulness, and that she had good days and bad days. T 536. Dr. Colceriu 19 observed joint pain, muscle pain, joint swelling, and joint stiffness. T 536. Dr. Colceriu 20 21 also noted skin sensitivity to light, and color changes in the fingers when exposed to cold 22 air. T 536. Dr. Colceriu also indicated weakness, blurred vision, and heat or cold 23 intolerance. T 537. Dr. Colceriu observed 8 fibromyalgia tender points throughout 24 25 Plaintiff’s body, and noted that she had diffuse chronic pain symptoms that were strongly 26 suggestive of fibromyalgia including fatigue, insomnia, headaches, burning, and 27 28 Page 5 Case 2:17-cv-01524-DJH Document 14 Filed 11/09/17 Page 6 of 16 1 forgetfulness. T 539-40. Dr. Colceriu diagnosed Plaintiff with polyarthralgia, DDD, 2 adhesive capsulitis of shoulder, and fibromyalgia, and prescribed gabapentin. T 539. 3 4 Jeanne Parrish, N.P., treated Plaintiff on May 21, 2015. T 691. Plaintiff reported 5 hand and wrist pain and swelling, with difficulty making fists in the morning. T 692. NP 6 Parrish observed joint tenderness diffusely throughout the wrists and Bouchard nodes, as 7 8 well as crepitation in both knees. T 692. NP Parrish also noted 8 fibromyalgia tender 9 points. T 694. 10 Plaintiff treated with physical therapist Shawn Gorsline, PT, DPT, on June 10, 11 2015. T 698. Plaintiff reported pain in all joints, that she was limited through her pain 12 13 and overall mobility tolerance, and has difficulty lifting and moving her arms to perform 14 activities of daily living. T 698. PT Gorsiline noted pain upon palpation of the right 15 bicep tendon, upper trap/levator scapula, rhomboid major/minor, and indicated that 16 17 Plaintiff demonstrated significant left shoulder stiffness, as well as overall poor joint 18 mobility and tolerance. T 699. PT Gorsiline indicated that she is limited through her 19 neck stability and lumbar range of motion, which limits her function. T 699. 20 21 On July 14, 2015, Leidy Sanchez, FNP, noted musculoskeletal exam neck pain 22 with range of motion, which radiated to her left arm causing tingling and numbness. T 23 729. Additionally, FNP Sanchez observed lumbar pain elicited with range of motion, 24 25 which radiated down both legs, left greater than right. T 729. Additionally, FNP 26 Sanchez indicated that Plaintiff had abnormal movement of all lower extremities, and 27 was walking slow due to pain. T 729. 28 Page 6 Case 2:17-cv-01524-DJH Document 14 Filed 11/09/17 Page 7 of 16 1 Plaintiff presented to the Brain and Spine center on August 5, 2015, where she 2 treated with Pritish Pawar, M.D., Ph.D. T 688. Plaintiff reported headaches, numbness 3 4 and tingling in the hands, shooting pain from the neck to the bilateral upper extremities 5 along the lateral aspect, and occasional shooting leg pain. T 688. Plaintiff also noted 6 headaches which had been worsening over the past 2-3 months, with holocephalic pain, 7 8 which lasts all day, and is associated with nausea and photophobia. T 688. Dr. Pawar 9 diagnosed Plaintiff with analgesic rebound headache, chronic migraines, neck pain, low 10 back pain, radicular pain, facial numbness, and paresthesia. T 689. 11 (C) Hearing Testimony 12 13 (1) Plaintiff’s Testimony 14 Plaintiff testified at a hearing on August 24, 2015. T 51-77. She went to high 15 16 school, but it was in Mexico and she did not complete her schooling. T 58. She is in 17 pain the majority of the time, and has a hard time sitting down or standing up. T 58. She 18 has hurt herself lifting 20 pounds before, so she tries to lift no more than 15 at a time. T 19 62. Her husband does most of the chores around the house. T 63. She has hobbies such 20 21 as painting, but can only paint for 10 to 15 minutes before she will have to stop, walk 22 around, and take a rest. T 65. She sleeps for a maximum of one hour at a time because 23 the pain wakes her up. T 66. Several times a day her hands become numb, tingling, and 24 25 cold. T 67. She tries to take her pain medications only at night because it makes her very 26 sleepy, and does not help much with the pain. T 69. She is able to read and speak 27 English to a certain extent, but cannot write in English. T 57, 69. 28 Page 7 Case 2:17-cv-01524-DJH Document 14 Filed 11/09/17 Page 8 of 16 1 (2) Vocational Expert Testimony 2 The ALJ concluded the hearing with testimony from vocational expert Tracy 3 Young ("VE"). T 71–77. The VE indicated that a hypothetical person with the same 4 5 RFC as the ALJ used in her decision would be able to perform the past relevant work of 6 hand packager. T 73. The VE also indicated that the hypothetical individual could also 7 engage in other work at the medium level as a machine packager, hospital food service 8 9 worker, and dining room attendant. T 75. If that person needed a sit/stand option, they 10 would not be able to maintain those jobs, or any other job at the medium level. T 76. If 11 that person would be unable to reach in all directions more than occasionally with the left 12 13 upper extremity, they would be unable to do those jobs. T 76. Finally, if that person 14 would need two additional breaks throughout the workday beyond what is normally 15 allowed, or would miss two or more days per month, all work would be precluded. T 76. 16 17 IV. ARGUMENT 18 19 1. The ALJ erred by failing to include mental limitations in the RFC, despite finding Plaintiff has mild limitations in completing activities of daily living, 20 and concentration, persistence, or pace. 21 22 The regulations require ALJs to assess a claimant’s mental impairments pursuant 23 to the psychiatric review technique. 20 C.F.R. § 404.1520a. The technique requires 24 rating the claimant’s degree of functional limitation in four broad functional areas: 25 26 activities of daily living, social functioning, concentration, persistence and pace, and 27 episodes of decompensation. 20 C.F.R. §§ 404.1520a(b)(2), (c)(2)-(4). The first three 28 functional areas can be rated either none, mild, moderate, marked, or extreme. Id. The Page 8 Case 2:17-cv-01524-DJH Document 14 Filed 11/09/17 Page 9 of 16 1 ALJ’s findings in assessing these functional areas are used to assess the severity of 2 Plaintiff’s impairment at Step Two, and to determine whether a listing is satisfied at Step 3 4 Three. Id. The findings in the psychiatric review technique are then used in shaping the 5 RFC. Id. 6 Regardless of the ALJ’s findings at Step Two regarding severity, the regulations 7 8 require the ALJ to account for the functional limitations caused by even non-severe 9 impairments when formulating the RFC finding. See 20 C.F.R. §§ 404.1523, 10 404.1545(a)(2) (requiring adjudicators to consider the functional effects of even non-11 severe impairments when formulating the RFC finding); SSR 96-8p, 1996 WL 374184, 12 13 *5 ("In assessing RFC, the adjudicator must consider limitations and restrictions imposed 14 by all of an individual’s impairments, even those that are not'severe.’"). Indeed, the 15 ALJ’s decision acknowledges that the adjudicator is required to provide a detailed 16 17 assessment of Plaintiff’s mental impairments "by itemizing various functions contained 18 in [the psychiatric review technique]." T 35. However, despite stating that "the residual 19 functional assessment reflects the degree of limitation" she found in the psychiatric 20 21 review technique, the ALJ failed to include any mental impairments in the RFC. T 29. 22 The ALJ acknowledged Plaintiff suffers from depression and anxiety in the 23 decision, finding that it was a medically determinable impairment. T 36. The ALJ 24 25 performed the required psychiatric review technique, and found that Plaintiff suffers mild 26 limitations in activities of daily living, and concentration, persistence, and pace. T 34. 27 28 Page 9 Case 2:17-cv-01524-DJH Document 14 Filed 11/09/17 Page 10 of 16 1 However, despite acknowledging these limitations, the ALJ did not account for them in 2 formulating the RFC, because the RFC includes no mental limitations whatsoever. T 35. 3 4 This is harmful error, because these skills are required for the performance of tasks 5 in even unskilled work. Pursuant to SSR 85-15, "[t]he basic mental demands of 6 competitive, remunerative, unskilled work include the abilities (on a sustained basis) to 7 8 understand, carry out, and remember simple instructions; to respond appropriately to 9 supervision, coworkers, and usual work situations; and to deal with changes in a routine 10 work setting." Indeed, "a substantial loss of ability to meet any of these basic work-11 related activities would severely limit the potential occupational base." SSR 85-15. 12 13 Further, despite the generally unskilled nature of Plaintiff’s past relevant work as a hand 14 packager, and the "other work" the ALJ cites at the alternate Step Five finding (T 43), 15 this does not absolve the ALJ of the obligation to consider the impact of only mild or 16 17 moderate mental limitations. "Because response to the demands of work is highly 18 individualized, the skill level of a position is not necessarily related to the difficulty an 19 individual will have in meeting the demands of the job. A claimant's condition may make 20 21 performance of an unskilled job as difficult as an objectively more demanding job." SSR 22 85-15. 23 Thus, the ALJ’s failure to account for Plaintiff’s mental limitations in the RFC and 24 25 resulting failure to consider their impact on Plaintiff’s ability to perform past relevant 26 work at Step Four, as well as the impact on the alternate Step Five finding was harmful 27 error and warrants remand. 28 Page 10 Case 2:17-cv-01524-DJH Document 14 Filed 11/09/17 Page 11 of 16 1 2. The ALJ’s adverse credibility determination failed to provide clear and 2 convincing reasons for discounting Plaintiff’s testimony regarding functional limitations stemming from her impairments. 3 4 "The ALJ can reject the claimant’s testimony about the severity of her 5 symptoms only by offering specific, clear and convincing reasons for doing so." 6 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). See also Burrell v. Colvin, 775 7 8 F.3d 1133, 1136—37 (9th Cir. 2014). Once an ALJ has found an underlying 9 medically determinable impairment that could reasonably be expected to produce a 10 claimant’s pain and other symptoms, she is required to evaluate the intensity and 11 persistence of the symptoms. See 20 C.F.R. §416.929(c)(1). In doing this, the 12 13 regulations state that the following factors will be considered: (i) Daily activities; (ii) 14 The location, duration, frequency, and intensity of pain or other symptoms; (iii) 15 Precipitating and aggravating factors; (iv) The type, dosage, effectiveness, and side 16 17 effects of any medication taken to alleviate pain or other symptoms; (v) Treatment, 18 other than medication, received for relief of pain or other symptoms; (vi) Any 19 measures used to relieve pain or other symptoms; and (vii) Other factors concerning 20 21 functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 22 416.929(c)(1)-(3); SSR 96-7p. This is not the sort of explanation or the kind of 23'specific reasons’ we must have in order to review the ALJ’s decision meaningfully." 24 25 Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). While activities of daily 26 living may be considered, many activities of daily living may not transfer to a "work 27 environment where it might be impossible to rest periodically or take medication." 28 Page 11 Case 2:17-cv-01524-DJH Document 14 Filed 11/09/17 Page 12 of 16 1 See Smolen, 80 F. 3d at 1284, n. 7; Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2 2001). Additionally, the claimant need not be bed-ridden or "completely 3 4 incapacitated" to qualify for benefits. Vertigan, 260 F.3d at 1050. 5 In this case, the ALJ noted that the "evidence does not support the extent and 6 severity of the limitations [Plaintiff] alleges," while addressing specific concerns. T 38. 7 8 First, the ALJ indicated discrepancies between Plaintiff’s activities of daily living and her 9 testimony, noting that "considered as a whole, this level of reported activity demonstrates 10 greater exertional and non-exertional functional capacity than [Plaintiff] alleges." T 38. 11 While it is true that Plaintiff testified to typically performing activities such as painting, 12 13 she can only continue these for 10 to 15 minutes before she must rest due to pain. T 65. 14 She must rest for 15 to 20 minutes before she can keep on with the task. T 65. Indeed, 15 even at the hearing, Plaintiff had to sit back down after standing for several minutes 16 17 because her legs were becoming numb. T 65. Further, Plaintiff testified that her husband 18 helps both her and her granddaughter "very much," but that he has "only been not 19 working for two years." T 70. After this, the ALJ makes the assumption that Plaintiff 20 21 did most of the household chores on her own. T 38. Here, the ALJ appears to assumes 22 that Plaintiff receive no help prior to her husband’s retirement. Plaintiff’s testimony 23 indicates that her husband does most of the chores presently, so it would be strange for 24 25 him to have done nothing previously. T 63. 26 Next, the ALJ indicated that the "objective physical examinations do not support 27 the limitations the [Plaintiff] alleges." T 38. However, the record indicates that Plaintiff 28 Page 12 Case 2:17-cv-01524-DJH Document 14 Filed 11/09/17 Page 13 of 16 1 has a history of widespread pain including pain in her flank, upper/lower back, and 2 bilateral shoulder, upper extremity, hip, wrist, knee, and ankle pain. Plaintiff indicated 3 4 pain throughout these areas on numerous occasions, which was typically accompanied by 5 tenderness and/or reduced ranges of motion. T 336, 426, 452, 457, 494-96, 536, 539, 6 688, 691, 698-99, 729, 759. Examining rheumatologist Dr. Colceriu observed joint pain, 7 8 muscle pain, and joint swelling and joint stiffness, as well as weakness, blurred vision, 9 and heat or cold intolerance. T 537. At a follow-up appointment with Dr. Colceriu’s 10 office, NP Parrish observed joint tenderness diffusely throughout the wrists and indicated 11 8 fibromyalgia tender points. T 694. The ALJ even gave great weight to Dr. Ha Lim, 12 13 who observed pain with decreased range of motion and extension in the neck. T 338. 14 Objectively, medical imaging revealed moderate L5-S1 intervertebral disc space 15 narrowing, and multilevel degenerative disc and joint disease of the mid-lower thoracic 16 17 spine. T 421-22. As demonstrated by the record, Plaintiff had constant pain and 18 tenderness throughout the relevant period, rather than "intermittent" physical deficits as 19 the ALJ indicated. T 39. 20 21 The ALJ also noted that Plaintiff "likely has diminished the overall effectiveness 22 of the prescribed medication" by taking them at night due to the side effects they cause. 23 The ALJ does not have the medical knowledge to determine whether Plaintiff’s use of her 24 25 medications at night decreases their effectiveness. See Soto-Hopkins v. Colvin, No. CV-26 15-541-TUC-LAB, 2016 WL 4771377, at *8 (D. Ariz., Sept. 14, 2016) ("The ALJ is not 27 a medical expert and may not offer his own expert evaluation of the raw medical data") 28 Page 13 Case 2:17-cv-01524-DJH Document 14 Filed 11/09/17 Page 14 of 16 1 (collecting cases); Miranda v. Colvin, No. CV-14-2327-TUC-LAB, 2015 WL 477212, at 2 *6 (D. Ariz., Feb. 5, 2015) ("The ALJ is not qualified as a medical expert and may not 3 4 substitute his own lay judgment in place of informed medical opinion"). 5 Further, the ALJ’s errors in assessing Plaintiff’s credibility were harmful, as they 6 directly prevented a finding that Plaintiff was disabled. See Treichler v. Comm’r of SSA, 7 8 775 F.3d 1090, 1099 (9th Cir. 2014) (noting that "[a]n error is harmless if it is 9'inconsequential to the ultimate non-disability determination’ [] or'if the Agency’s path 10 may be reasonably discerned,’ even if the agency'explains its decision with less than 11 ideal clarity’") (quoting Alaska Dept. of Envtl. Conserv. V. EPA, 540 U.S. 461, 497 12 13 (2004). The VE testified that a hypothetical person who needed a sit/stand option would 14 not be able to maintain any job at the medium level. T 76. Plaintiff testified that she can 15 stand in one place at most one hour at a time, but then has to sit down and rest due to the 16 17 leg pain. T 62. Additionally, when doing things such as painting, Plaintiff is only able to 18 keep up the activity for 10 to 15 minutes before she has to walk around and rest. T 65. 19 Here, if the ALJ found Plaintiff credible, she would have required a sit/stand option to 20 21 perform a full day of work. And as noted above in the factual portion of this brief, 22 Plaintiff was 56 years old at the date of the ALJ’s decision. T 78. She did not finish high 23 school, and went to high school in another country. T 135. She had unskilled past 24 25 relevant work as a hand packager, but the VE specifically testified at the hearing that 26 there were no transferrable skills from this job. T 73. Given these facts, Medical 27 Vocational Rules 202.01 and 201.01 indicate that a finding of disability would be 28 Page 14 Case 2:17-cv-01524-DJH Document 14 Filed 11/09/17 Page 15 of 16 1 directed if Plaintiff had been limited to either the light or sedentary exertional level. See 2 20 C.F.R. Part 404, Subpart P, Appendix II, Rule 201.01, 202.01. As Plaintiff’s age and 3 4 impairments make it highly unlikely that she could meet the demands of medium work, 5 the ALJ’s errors in rejecting her testimony without sufficient reasons supported by 6 substantial evidence was directly harmful. 7 8 Thus, the ALJ’s failed to offer specific, clear and convincing reasons for rejecting 9 the severity of Plaintiff’s symptoms. See Smolen, 80 F.3d at 1284. This error warrants 10 remand for further administrative proceedings. 11 V. CONCLUSION 12 13 For the foregoing reasons, it is respectfully requested that the matter be remanded 14 for further administrative proceedings, including de novo hearing and decision. 15 16 17 Date: November 9, 2017 Respectfully submitted, 18 19 20/s/Howard D. Olinsky Howard D. Olinsky 21 Admitted Pro Hac Vice 22 Olinsky Law Group One Park Place 23 300 South State Street Suite 420 24 Syracuse, NY 13202 25 NY State Bar No. 2044865 Telephone: (315) 701-5780 26 Facsimile: (315) 701-5781 27 holinsky@windisability.com 28 Page 15 Case 2:17-cv-01524-DJH Document 14 Filed 11/09/17 Page 16 of 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 16

RESPONSE BRIEF by Commissioner of Social Security Administration.

Case 2:17-cv-01524-DJH Document 15 Filed 12/05/17 Page 1 of 16 1 Elizabeth A. Strange First Assistant United States Attorney 2 District of Arizona 3 Daphne Banay 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA21537 8 Fax: (206) 615-2531 daphne.banay@ssa.gov 9 Telephone: (206) 615-2113 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Angelica Ponce, 14 No. CV-17-01524-PHX-DJH 15 Plaintiff, 16 DEFENDANT'S BRIEF vs. 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 STANDARD OF REVIEW 22 Plaintiff seeks judicial review of the final administrative decision finding her not 23 disabled and, therefore, not entitled to disability insurance benefits under Title II of the 24 25 Social Security Act, 42 U.S.C. §§ 401-433 (Tr. at 25-44). The standard of review is 26 whether the Commissioner of Social Security’s final decision is supported by substantial 27 evidence and free of legal error. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 28 Case 2:17-cv-01524-DJH Document 15 Filed 12/05/17 Page 2 of 16 1 595, 599 (9th Cir. 1999). This is a highly deferential standard of review. Valentine v. 2 Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). 3 ISSUES 4 5 Defendant characterizes the issues raised by Plaintiff (Plaintiff’s Opening Brief 6 (Pl.’s Br. at 1)) as follows: (1) Has Plaintiff demonstrated any error or any reversible 7 harmful error in the ALJ’s residual functional capacity finding of her limitations and in the 8 ALJ’s resulting step four and step five determinations based on the ALJ’s residual 9 10 functional capacity finding?; and (2) Did the ALJ err in rejecting Plaintiff’s subjective 11 complaints? 12 STATEMENT OF THE CASE AND SEQUENTIAL EVALUATION PROCESS 13 FINDINGS 14 On July 19, 2012, Plaintiff protectively filed an application for disability insurance 15 16 benefits, alleging disability beginning on August 1, 2007 (Tr. 31, 176; Tr. 174-178). The 17 application was denied initially and on reconsideration (Tr. 31, 101-111, 113-121). After 18 holding a hearing on August 24, 2015, an ALJ issued a decision in which the ALJ applied 19 the five-step sequential evaluation process (20 C.F.R. § 404.1520) for determining whether 20 21 a claimant is disabled (Tr. 25-44). On March 16, 2017, the Appeals Council denied 22 Plaintiff’s request for review (Tr. 1-5), making the ALJ’s decision the Commissioner’s 23 final decision subject to judicial review. See 20 C.F.R. §§ 404.981, 422.210. 24 25 STATEMENT OF FACTS 26 At the time of the August 1, 2017 alleged disability onset date, Plaintiff was 48 years 27 old (Tr. 31, 176). She had a high school education and past relevant work experience as an 28 2 Case 2:17-cv-01524-DJH Document 15 Filed 12/05/17 Page 3 of 16 1 order picker and a hand packager (Tr. 42, 43, 72, 220). Plaintiff alleged disability because 2 of: "Neck and back problem"; "Back problems"; "Compressed disc in neck and back"; 3 "pain in limbs"; and "migraines" (Tr. 219). 4 5 ARGUMENT 6 1. Plaintiff Has Not Demonstrated Any Error Or Any Reversible Harmful Error In The 7 ALJ’s Residual Functional Capacity Finding Of Her Limitations And In the ALJ’s Resulting Step Four and Step Five Determinations Based On the ALJ’s Residual 8 Functional Capacity Finding. 9 An impairment will only be found severe if it "significantly limits [a claimant’s] 10 physical or mental ability to do basic work activities." See 20 C.F.R. § 404.1520(c) 11 12 (insertions in brackets added); see also SSR 96-3p, available at, 1996 WL 374181, *1 13 (stating that "an impairment(s) that is'not severe’ must be a slight abnormality (or 14 combination of slight abnormalities) that has no more than a minimal effect on the ability 15 16 to do basic work activities"). 1 The term "basic work activities" is defined as the abilities 17 and aptitudes necessary to do most jobs. See 20 C.F.R. § 404.1521(b) (listing examples of 18 basic work activities). 19 20 The ALJ found that Plaintiff had medically determinable impairments of depression 21 and anxiety, considered singly and in combination, that did not cause more than minimal 22 23 1 24 The Ninth Circuit has held that "the step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) 25 (citing Yuckert v. Bowen, 482 U.S. 137, 153-154 (1987)). An impairment or combination 26 of impairments can be found "not severe" only if the evidence establishes a slight abnormality that has "no more than a minimal effect on an individual’s ability to do work." 27 Id. 28 3 Case 2:17-cv-01524-DJH Document 15 Filed 12/05/17 Page 4 of 16 1 limitation in the ability to perform basic work-related mental work activities and therefore 2 were nonsevere impairments (Tr. 34). 3 Plaintiff alleges that the ALJ erred by not including mental limitations in the ALJ’s 4 5 residual functional capacity finding and therefore erred in the resulting step four and step 6 five determinations (Pl.’s Br. At 8-10), and that these alleged errors constitute harmful error 7 warranting remand of her case (Pl.’s Br. at 10). However, Plaintiff has not demonstrated 8 that the ALJ erred or harmfully erred in these respects and therefore has not demonstrated 9 10 that remand is warranted in this case. 11 Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (the burden of showing that an error is 12 harmful falls upon the party attacking the agency’s determination). 13 14 The step two inquiry "is merely a threshold determination of whether the claimant 15 is able to perform his [or her] past work." Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th 16 Cir. 2007) (insertion in brackets added). An ALJ’s step two finding of even a severe 17 18 impairment does not necessarily mean the claimant has a significant limitation at any 19 subsequent step. See Id., at 1075-1076; see also Bray v. Comm’r of the Soc. Sec. Admin., 20 554 F.3d 1219, 1221, 1228-1229 (9th Cir. 2009) ("Bray offers no authority to support the 21 proposition that a severe mental impairment must correspond to limitations on a claimant’s 22 23 ability to perform basic work activities."). 24 Moreover, Plaintiff generally cites to the provisions of SSR 85-15, but Plaintiff does 25 not identify any credible substantial evidence in the record of specific mental functional 26 27 limitations that would have impacted the ALJ’s analysis (Pl.’s Br. at 10). This Court should 28 therefore reject Plaintiff’s invitation to find that the ALJ’s residual functional capacity 4 Case 2:17-cv-01524-DJH Document 15 Filed 12/05/17 Page 5 of 16 1 finding failed to account for mental limitations in some unspecified way (Pl.’s Br. at 8-10). 2 See Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 692, n.2 (9th Cir. 2009) (the 3 Ninth Circuit rejected any invitation by the claimant to find that the ALJ failed to account 4 5 for his knee and shoulder impairments when the claimant did not detail what limitations 6 followed from the evidence of these impairments besides the limitations already listed in 7 the residual functional capacity). 8 Thus, and contrary to Plaintiff’s assertions (Pl.’s Br. at 8-10), Plaintiff has not 9 10 demonstrated that the ALJ committed any error or any reversible harmful error in the ALJ’s 11 residual functional capacity finding of her limitations and in the ALJ’s resulting step four 12 and step five determinations based on the ALJ’s residual functional capacity finding. 13 14 2. The ALJ Did Not Err In Rejecting Plaintiff’s Subjective Complaints. 15 This Court reviews the ALJ’s decision under the highly deferential substantial 16 evidence standard of review. See Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 17 18 690 (9th Cir. 2009). The Court reviews the ALJ’s credibility finding under the clear and 19 convincing reasons standard of review. See, e.g., Molina v. Astrue, 674 F.3d 1104, 1112 20 (9th Cir. 2012). Although the Ninth Circuit has found this is a heightened standard of 21 review, see Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002), it 22 23 has also found the standard satisfied when the ALJ bases the ALJ’s conclusions on 24 reasonable interpretations of the evidence. Molina, 674 F.3d at 1113. While the clear and 25 convincing reasons standard of review is the law of the Ninth Circuit, the Commissioner 26 27 maintains that the standard is inconsistent with the deferential substantial evidence standard 28 of review set forth in 42 U.S.C. § 405(g). Therefore, the clear and convincing reasons 5 Case 2:17-cv-01524-DJH Document 15 Filed 12/05/17 Page 6 of 16 1 standard should not apply. Because the ALJ’s reasons suffice under any standard, this 2 disagreement need not be resolved in this case. 3 The ALJ found that Plaintiff’s subjective complaints were less than fully credible 4 5 (Tr. 41; Tr. 38-39). The ALJ found that the evidence did not support the extent and severity 6 of the limitations that Plaintiff alleged (Tr. 38). The ALJ noted, first, that there were 7 discrepancies between Plaintiff’s testimony concerning her physical capacity and her 8 activities of daily living (Tr. 38, 63, 251, 254, 257, 261). An ALJ may rely on 9 10 inconsistencies in finding a claimant’s subjective complaints less than completely credible. 11 See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). 12 In addition, the ALJ found that Plaintiff’s subjective complaints were not fully 13 14 credible based on her daily activities, with the ALJ concluding that "[c]onsidered as a 15 whole, this level of reported activity demonstrates greater exertional and non-exertional 16 functional capacity than the claimant alleges." (Tr. 38, 243, 247, 246, 247). In assessing a 17 18 claimant’s credibility, the ALJ may consider whether she engages in daily activities 19 inconsistent with the alleged symptoms. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 20 2012). An ability to perform daily activities may be seen as inconsistent with the presence 21 of a condition that would preclude all work activity. See Curry v. Sullivan, 925 F.2d 1127, 22 23 1130 n.1 (9th Cir. 1991) (citing Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989)); Stubbs-24 Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (where "[n]ormal activities of 25 daily living, including cooking, house cleaning, doing laundry, and helping her husband in 26 27 managing finances" tended to "[s]uggest that the claimant may still be capable of 28 performing the performing the basic demands of competitive, remunerative, unskilled work 6 Case 2:17-cv-01524-DJH Document 15 Filed 12/05/17 Page 7 of 16 1 on a sustained basis."); see also Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 2 600 (9th Cir. 1999) (claimant’s ability to fix meals, do laundry, work in the yard, and 3 occasionally care for his friend’s child was evidence of claimant’s ability to work); and 4 5 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (ALJ properly found that the 6 claimant’s claim of totally disabling pain was undermined by her own testimony about her 7 daily activities, such as attending to the needs of her two young children, cooking, 8 housekeeping, laundry, shopping, attending therapy and various other meetings every 9 10 week, and so forth). 11 Plaintiff takes issue with the ALJ’s consideration of her daily activities based on her 12 alleged difficulties in performing them (Pl.’s Br. at 12). However, even where everyday 13 14 activities of daily living suggest some difficulty functioning, they may be grounds for 15 discrediting the claimant's testimony to the extent that they contradict claims of a totally 16 debilitating impairment. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). 17 18 Furthermore, Plaintiff’s reliance on her own subjective statements of limitation (Pl.’s Br. 19 at 12) is misplaced because the ALJ found, based on valid reasons discussed above and 20 below (Tr. 38-39), that her subjective complaints were not fully credible in this case (Tr. 21 41) as the evidence did not support the extent and severity of the limitations she alleged 22 23 (Tr. 38). 24 Plaintiff also takes exception with the ALJ’s consideration of her daily activities by 25 asserting that "[t]he ALJ makes the assumption that Plaintiff did most of the household 26 27 chores on her own" and that: 28 7 Case 2:17-cv-01524-DJH Document 15 Filed 12/05/17 Page 8 of 16 1 [t]he ALJ appears to assumes that Plaintiff received no help prior to her husband’s retirement. Plaintiff’s testimony indicates that her husband does 2 most of the chores presently, so it would be strange for him to have done 3 nothing previously. T 63. 4 (Pl.’s Br. at 12). However, Plaintiff’s exception is misplaced. Here, and contrary to 5 Plaintiff’s assertion (Pl.’s Br. at 12), the ALJ did not assume that Plaintiff received "no 6 help prior to her husband’s retirement", but instead that she presumably "did most of" the 7 8 household chores on her own (Tr. 38). Also, and contrary to Plaintiff’s assertion (Pl.’s Br. 9 at 12), Plaintiff did not testify that her "husband does most of the chores presently". While 10 Plaintiff testified that her husband helped her granddaughter and herself "very much" (Tr. 11 12 70, she also testified that "My husband calls me to do all the things around the house. The 13 things that I’m able to do are, like, make my bed, dust" (Tr. 63). 14 Moreover, and contrary to Plaintiff’s assertions (Pl.’s Br. at 12), substantial 15 16 evidence supported the ALJ’s conclusion that—prior to her husband’s retirement two years 17 before the August 24, 2015 hearing—Plaintiff presumably did most of the household 18 chores on her own in light of the ALJ’s observation that: 19 [i]n September 2013, in the course of a mental health consultation, the 20 claimant reported she tries to stay busy and active during the day, and is able 21 to attend to most daily activities (10F/76-77). 22 (Tr. 38, 504-505). 23 Furthermore, and in any event, while Plaintiff may disagree with the ALJ’s 24 25 consideration of her daily activities in finding her subjective complaints not fully 26 credible based on offering her own interpretation and weighing of the evidence 27 (Pl.’s Br. at 12), this does not establish ALJ error. Even where the evidence of a 28 8 Case 2:17-cv-01524-DJH Document 15 Filed 12/05/17 Page 9 of 16 1 claimant’s daily activities may also admit of an interpretation more favorable to a 2 claimant, the Court must uphold the ALJ's decision where the evidence is 3 susceptible to more than one rational interpretation. See Burch v. Barnhart, 400 4 5 F.3d 676, 680-681 (9th Cir. 2005). 6 Additionally, the ALJ found that Plaintiff’s subjective complaints were not 7 fully credible because objective physical examinations did not support the 8 limitations she alleged (Tr. 38, 336, 338, 339; Tr. 39, 490, 491, 492, 713, 717). The 9 10 ALJ properly considered the objective medical evidence as a factor, but not the sole 11 factor, in finding that Plaintiff’s subjective complaints were not fully credible (Tr. 12 38-39, 41). While subjective pain testimony cannot be rejected on the sole ground 13 14 that it is not fully corroborated by objective medical evidence, the medical evidence 15 is still a relevant factor in determining the severity of the claimant’s pain and its 16 disabling effects. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 17 18 However, based on Plaintiff offering her own interpretation and weighing of 19 the evidence, Plaintiff asserts that she had "constant pain" and disagrees with the 20 ALJ’s consideration of the objective evidence and with the ALJ’s conclusion that 21 "[a]lthough some examinations do find greater physical deficits, they appear to be 22 23 intermittent rather than persistent throughout" (Tr. 39; Pl.’s Br. at 12-13). Plaintiff’s 24 disagreement, however, does not establish ALJ error. The ALJ acknowledged that 25 Plaintiff’s longitudinal physical examinations generally showed show level of pain 26 27 (Tr. 39). Moreover, and in any event, it is well-established that on review the Court 28 does not retry the case or alter credibility determinations and factual findings even 9 Case 2:17-cv-01524-DJH Document 15 Filed 12/05/17 Page 10 of 16 1 where the evidence is susceptible of more than one rational interpretation. See 2 Moncada v. Chater, 60 F.3d 521, 524-525 (9th Cir. 1995). 3 The ALJ also found that Plaintiff’s allegations of severe and severely limiting 4 5 pain was not credible in light of the extremely conservative level of treatment and 6 pain management (Tr. 39, 260, 370, 490, 494, 539, 540, 692, 725, 753). Evidence 7 of conservative treatment is sufficient to discount a claimant’s testimony regarding 8 severity of an impairment. See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). 9 10 Furthermore, in finding that Plaintiff’s subjective complaints were not fully 11 credible, the ALJ noted that for myalgia pain, Plaintiff was prescribed Gabapentin 12 starting at 100 mg, with directions to titrate up to 300 mg (Tr. 39, 370, 539-540). 13 14 However, a May 2015 treating care provider indicated that Plaintiff did not titrate 15 as directed and as a result the provider was unable to determine if the prescription 16 had actually helped with global pain (Tr. 39, 692). The ALJ noted that at the 17 18 hearing, Plaintiff testified that her medication did not really help her pain, however, 19 she also testified that she only took it at night because it made her very sleepy (Tr. 20 39, 69). The ALJ therefore concluded that: 21 Thus, not only is the claimant’s pain medication minimal, but she clearly 22 does not take it as directed. Instead of seeking alternative medication that 23 does not make her sleepy, she consciously chooses to deal with the pain during the day and by not doing so – by not taking it as directed – she likely 24 has dimmished [sic] the overall effectiveness of the prescribed medication. 25 (Tr. 39, insertion in brackets added). Although Plaintiff disagrees with this reason 26 27 by the ALJ in finding her subjective complaints not fully credible (Pl.’s Br. at 13-28 14), the type of treatment sought is "powerful evidence regarding the extent to 10 Case 2:17-cv-01524-DJH Document 15 Filed 12/05/17 Page 11 of 16 1 which [claimant] was in pain." See Burch v. Barnhart, 400 F.3d 676, 680-681 (9th 2 Cir. 2005) (insertions in brackets added). The type of treatment a claimant uses is 3 "an important indicator of the intensity and persistence of [a claimant’s] symptoms." 4 5 See 20 C.F.R. §§ 404.1529(c)(3) (insertion in brackets added). "[T]he individual’s 6 statements may be less credible if the level.... of treatment is inconsistent with the 7 level of complaints[.]" SSR 96-7p, available at 1996 WL 374186, *7; see also 8 Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) ("[I]t was reasonable for the 9 10 ALJ to conclude that the'level or frequency of treatment [was] inconsistent with 11 the level of complaints.’ SSR 96–7p."). 12 Here, and contrary to Plaintiff’s assertion (Pl.’s Br. at 13), the ALJ’s 13 14 conclusion that Plaintiff likely diminished the overall effectiveness of the prescribed 15 medications by not taking them as directed was supported by: the treatment note 16 that Plaintiff was to start Gabapentin "at 100 mg titrating up to 300 mg TID" (Tr. 17 18 540), with TID being a medical abbreviation for 3 times a day 2; and a subsequent 19 treatment note that indicated that Plaintiff did not titrate Gabapentin, that her alleged 20 joint pain was worse in the AM than PM (Tr. 692), and her provider indicating that 21 Plaintiff was to try once again the up titration of Gabapentin starting at 100 mg 22 23 titrating up to 300 mg "TID" (Tr. 695). In reaching his findings, the ALJ is entitled 24 to draw inferences logically flowing from the evidence. See Sample v. Schweiker, 25 26 2 27 When "[s]een on a prescription, t.i.d. means three times a day." See MedicineNet.Com: Medical Definition of t.i.d. (on prescription) 28 <https://www.medicinenet.com/script/main/art.asp?articlekey=6953> 11 Case 2:17-cv-01524-DJH Document 15 Filed 12/05/17 Page 12 of 16 1 694 F.2d 639, 642 (9th Cir. 1982). Moreover, it is the ALJ who is responsible for 2 weighing the evidence for probity and credibility. Id. at 643. The ALJ need not 3 substitute the judgment of even expert witnesses for his or her own. Id. at 642. On 4 5 review the Court may not reweigh the evidence or substitute its judgment for that of 6 the ALJ. Even when evidence reasonably supports either confirming or reversing 7 the ALJ’s decision, the Court may not substitute its judgment for that of the ALJ. 8 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). The 9 10 Court must defer to the Commissioner’s decision even if evidence exists to support 11 more than one rational interpretation. Id., at 1193. Therefore, Plaintiff’s 12 disagreement with the ALJ’s conclusion (Pl.’s Br. at 13-14), does not establish that 13 14 the ALJ erred or inappropriately acted as a medical expert as Plaintiff suggests. 15 Furthermore, in this case, and contrary to Plaintiff’s assertion (Pl.’s Br. at 14-16 15), the ALJ provided valid reasons to reject Plaintiff’s subjective complaints as not 17 18 fully credible and therefore remand for further proceedings is not warranted. 19 Because the ALJ properly rejected Plaintiff’s subjective complaints, Plaintiff’s 20 reliance on her own subjective testimony in support of her belief that she would 21 have required a sit/stand option to perform a full day of work and her citation to the 22 23 vocational expert’s testimony in response to a hypothetical person who needed a 24 sit/stand option (Pl.’s Br. at 14, citing Tr. 65, 76) is misplaced and does not support 25 a finding of disability and does not establish harmful ALJ error as Plaintiff 26 27 incorrectly maintains (Pl.’s Br. at 14). See Batson v. Comm’r of the Soc. Sec. 28 Admin., 359 F.3d 1190, 1197-1198 (9th Cir. 2004) (ALJ not required to incorporate 12 Case 2:17-cv-01524-DJH Document 15 Filed 12/05/17 Page 13 of 16 1 evidence which was properly discounted; and even if the vocational expert’s 2 views—which relied in part on the claimant’s subjective complaint testimony and 3 doctor opinions that were given minimal weight by the ALJ—were contrary, that 4 5 did not negate the substantial evidence in the record as a whole in support of the 6 ALJ’s determination). 7 Moreover, a finding of disability based on rules 201.01 and 202.01 of the 8 medical-vocational guidelines (the guidelines) as Plaintiff asserts (Pl.’s Br. at 14-9 10 15) is not warranted because rule 201.01 presumes that a claimant is limited to 11 sedentary work and further presumes that a claimant has a limited or less education 12 and because rule 202.01 presumes that a claimant is limited to light work and also 13 14 presumes that a claimant has a limited or less education. 3 20 C.F.R. § 404, Subpart 15 P, Appendix 2, Table No. 1, Rule 201.01 and Table No. 2, Rule 202.01. Here, the 16 ALJ did not find that Plaintiff had a residual functional capacity limiting her to 17 18 sedentary work or light work, but instead that Plaintiff had the greater ability to 19 perform medium work (Tr. 35-36, Finding 5). The ALJ also did not find that 20 Plaintiff had a limited or less education, but instead that she had a high school 21 education and was able to communicate in English (Tr. 43; Tr. 220). 22 23 24 25 3 26 Plaintiff cites to the transcript at page 135 in asserting that she did not finish high school and went to high school in another country (Pl.’s Br. at 14), but Tr. 135 does 27 not specify this. 28 13 Case 2:17-cv-01524-DJH Document 15 Filed 12/05/17 Page 14 of 16 1 Therefore, and contrary to Plaintiff’s assertions (Pl.’s Br. at 14-15), a finding 2 of disability is not warranted in her case under the medical-vocational guidelines. 3 20 C.F.R. § 404, Subpart P, Appendix 2, Table No. 3, Rule 203.21 and Rule 203.28 4 5 (Tr. 43-44, ALJ’s decision citing rules 203.21 and 203.28 in determining that "A 6 finding of'not disabled’ is therefore appropriate under the framework of the above-7 cited rules."). 8 Also, in in order to warrant a finding of disabled, Plaintiff must be unable not 9 10 only to do her past relevant work (step four) but also must be unable to engage in 11 any other work existing in the national economy (step five). See 42 U.S.C. § 12 423(d)(2)(A); 20 C.F.R. §§ 404.1520(f)-(g); Tackett v. Apfel, 180 F.3d 1094, 1098 13 14 (9th Cir. 1999). 15 Here, the ALJ found at step four that Plaintiff was able to perform her past 16 relevant work as a hand packager (Tr. 42, Finding 6), and, in the alternative, at step 17 18 five that Plaintiff could perform other work existing in significant numbers in the 19 national economy in representative occupations as a machine packager, a hospital 20 food service worker, and a dining attendant (Tr. 43-44, Finding 6). However, 21 because the ALJ found that Plaintiff was not disabled at step four, the ALJ was not 22 23 required to even make an alternative step five determination in this case. See 20 24 C.F.R. § 404.1520(a)(4) ("If we can find that you are disabled or not disabled at a 25 step, we make our determination or decision and we do not go on to the next step."). 26 27 Because Plaintiff has not met her burden of establishing that she is unable to perform 28 both her past relevant work at step four and that she is unable to perform any work 14 Case 2:17-cv-01524-DJH Document 15 Filed 12/05/17 Page 15 of 16 1 at step five, this is an additional reason why she has not demonstrated that a finding 2 of disability was warranted in her case. 3 Finally, and contrary to Plaintiff’s request (Pl.’s Br. at 10, 15) a remand for 4 5 further administrative proceedings is not warranted in this case because Plaintiff has 6 not demonstrated that the ALJ erred or harmfully erred in assessing her residual 7 functional capacity of her functional limitations and in determining that her 8 subjective complaints were not fully credible. 9 10 CONCLUSION 11 The Commissioner respectfully submits that her decision be affirmed. 12 DATED this 5th day of December 2017. 13 14 Respectfully submitted, 15 ELIZABETH A. STRANGE 16 First Assistant United States Attorney District of Arizona 17 18 s/Daphne Banay DAPHNE BANAY 19 Special Assistant United States Attorney 20 Of Counsel for the Defendant: 21 MATHEW W. PILE 22 Acting Regional Chief Counsel, Social Security Administration 23 Office of the General Counsel, Region X 701 Fifth Avenue, Suite 2900 M/S 221A 24 Seattle, WA 98104-7075 25 26 27 28 15 Case 2:17-cv-01524-DJH Document 15 Filed 12/05/17 Page 16 of 16 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Defendant's Brief was filed with the Clerk 3 of the Court on December 5, 2017, using the CM/ECF system, which will send 4 5 notification of such filing to the following: Howard D. Olinsky. 6 7 s/Barbara Eadie BARBARA EADIE 8 Paralegal Specialist 9 Office of the General Counsel 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

REPLY BRIEF by Angelica Ponce.

Howard D. Olinsky, Esq. 1 Admitted Pro Hac Vice 2 Olinsky Law Group 300 South State Street, Suite 420 3 Syracuse, NY 13202 NY State Bar No. 2044865 4 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 5 holinsky@windisability.com 6 Attorney for Plaintiff Angelica Ponce 7 IN THE UNITED STATES DISTRICT COURT 8 DISTRICT OF ARIZONA 9 Angelica Ponce, 10 Plaintiff, Civil No. 2:17-cv-01524-DJH 11 vs. 12 PLAINTIFF'S BRIEF 13 Nancy A. Berryhill, Acting Commissioner of Social 14 Security, 15 Defendant 16 PLAINTIFF'S REPLY BRIEF 17 IN SUPPORT OF A SOCIAL SECURITY APPEAL 18 1. The ALJ erred by failing to include mental limitations in the RFC, despite finding Plaintiff has mild limitations in completing activities of daily living, 19 and concentration, persistence, or pace. (Reply to Defendant's Point I) 20 Defendant argues that the ALJ was not required to include mental limitations in 21 her RFC determination, despite finding limitations in her own psychiatric review 22 technique. Dkt. No. 15 at 4. To begin, Defendant includes a paragraph relating to the 23 Step Two inquiry. Defendant points out that "an ALJ's step two finding of even a severe 24 impairment does not necessarily mean that the claimant has a significant limitation at any 25 subsequent step." Dkt. No. 15 at 4. This is irrelevant, however, as the ALJ already 26 27 1 28 detailed limitations in her psychiatric review technique findings. T 34. Here, the ALJ 1 2 notes that Plaintiff had mild limitations in her activities of daily living, noting that 3 Plaintiff reported often having no motivation or desire to complete daily tasks. T 34. 4 Further, the ALJ found Plaintiff to have mild limitations in concentration, persistence, or 5 pace, as she reported difficulties sustaining concentration secondary to chronic pain and 6 sleepiness from the side effects of medications. T 34. However, despite these notable 7 findings of limitations in sustaining concentration, sleepiness, and lack of motivation, the 8 ALJ declined to provide for them in her final RFC determination. 9 10 Here, even if these limitations were based on physical pain, as the ALJ indicated, 11 the ALJ still found that these limitations existed, and subsequently failed to include them 12 in the RFC determination or hypothetical question to the vocational expert. This was 13 error as the ALJ is required to consider all of the limitations imposed by the claimant's 14 impairments, even those that are not severe. Carmickle v. Comm'r, Soc. Sec. Admin., 533 15 F.3d 1155, 1164 (9th Cir. 2008). Even though a non-severe "impairment[ ] standing 16 alone may not significantly limit an individual's ability to do basic work activities, it 17 18 may—when considered with limitations or restrictions due to other impairments—be 19 critical to the outcome of a claim." Id. Notably, the ALJ did not include these limitations 20 in her hypothetical question to the vocational expert. T 72-77. The hypothetical an ALJ 21 poses to a vocational expert, which derives from the RFC, "must set out all the 22 limitations and restrictions of the particular claimant." Embrey v. Bowen, 849 F.2d 418, 23 421 (9th Cir. 1988). 24 25 Further, Defendant cites Valentine for the proposition that a Court should reject 26 Plaintiff's invitation to find that the ALJ's RFC determination failed to account for some 27 2 28 mysterious and unknown limitations. Dkt. No. 15 at 4-5. In a footnote, the Valentine 1 2 court rejected an argument regarding the omission of Valentine's knee impairment from 3 the RFC, as it dated back to his service in Vietnam, and the record gave no indication that 4 it caused Valentine problems after the alleged onset date. Valentine v. Comm'r Soc. Sec. 5 Admin., 574 F.3d 685, 692 (9th Cir. 2009). There, because Valentine did not detail what 6 limitations followed from that impairment other than those already listed in the RFC, the 7 Court rejected the invitation to find that the ALJ failed to account for Valentine's knee 8 impairment. Id. However, this case is distinguishable from Valentine, because the ALJ 9 10 already found these impairments and included them in the decision. These were not 11 unknown impairments "already listed in the RFC" like in Valentine, but were limitations 12 already found at Step Two which should have been included in the RFC. Id. Defendants 13 reliance on this case is inapposite. 14 Thus, because the ALJ found limitations regarding Plaintiff's concentration, 15 persistence, or pace, and abilities to perform activities of daily living, they should have 16 been accounted for in the hypothetical question to the vocational expert, and subsequent 17 18 RFC determination. In turn, as the ALJ erred in excluding some of Plaintiff's limitations 19 from the RFC assessment and subsequent hypothetical, the vocational expert's testimony 20 "has no evidentiary value." Carmickle, 533 F.3d at 1166 (quoting Russell v. Sullivan, 21 930 F.2d 1443, 1445 (9th Cir. 1991) (abrogated on other grounds)). This also leaves the 22 ALJ's Step Four and alternate Step Five findings unsupported by substantial evidence, 23 which warrants remand for further administrative proceedings. 24 25 For these reasons and the reasons presented in Plaintiff's opening brief, this matter 26 should be remanded for further administrative proceedings. 27 3 28 1 December 20, 2017 /s/ Howard Olinsky 2 Howard Olinsky, Esq. Olinsky Law Group 3 Admitted Pro Hac Vice 4 300 South State Street, Suite 420 Syracuse, New York 13202 5 Phone: (315) 701-5780 Facsimile: (315) 701-5781 6 Email: holinsky@windisability.com 7 8 9 CERTIFICATE OF SERVICE 10 I hereby certify that on December 20, 2017, I electronically filed Plaintiff's reply 11 brief with the Clerk of the District Court using the CM/ECF system, which sent 12 notification of such filing to the following: 13 To: 14 Daphne Banay Special Assistant United States Attorney 15 Office of the General Counsel Social Security Administration 16 701 Fifth Avenue, Suite 2900 M/S 221A 17 Seattle, WA 98104-7075 State Bar No. WA21537 18 Fax: (206) 615-2531 daphne.banay@ssa.gov 19 Telephone: (206) 615-2113 /s/ Howard D. Olinsky 20 ___________________________ 21 Howard D. Olinsky, Esq. Attorney for Plaintiff 22 23 24 25 26 27 4 28

Order

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Angelica Ponce, No. CV-17-01524-PHX-DJH 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff Angelica Ponce's appeal of the 16 Administrative Law Judge's ("ALJ") denial of her application for disability insurance 17 benefits. (Doc. 14). Plaintiff argues that the ALJ erred in two ways: 1) by failing to 18 include her mental limitations in the residual functional capacity1 ("RFC"), and 2) by 19 failing to provide clear and convincing reasons for discounting her testimony regarding 20 her functional limitations. Defendant has filed a Response (Doc. 15) and Plaintiff has 21 filed a Reply. (Doc 16). For the reasons stated herein the Court affirms the ALJ's 22 decision. 23 A. Standard of Review 24 "An ALJ's disability determination should be upheld unless it contains legal error 25 or is not supported by substantial evidence." Garrison v. Colvin, 759 F.3d 995, 1009 (9th 26 Cir. 2014) (citing Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 27 1 The term "residual functional capacity" means the most an individual can do after 28 considering the effects of physical and/or mental limitations that affect the ability to perform work-related tasks. See 20 C.F.R. § 404.1545(a)(1-2). 1 2006); 42 U.S.C. §§ 405(g), 1383(c)(3)). "'Substantial evidence' means more than a mere 2 scintilla, but less than a preponderance; it is such relevant evidence as a reasonable 3 person might accept as adequate to support a conclusion." Id. (internal quotation marks 4 and citation omitted). In determining whether substantial evidence supports the ALJ's 5 decision, a district court considers the record as a whole, weighing both the evidence that 6 supports and that which detracts from the ALJ's conclusions. Reddick v. Chater, 157 7 F.3d 715, 720 (9th Cir. 1998). "Where the evidence is susceptible to more than one 8 rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion 9 must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). To determine 10 whether substantial evidence supports a finding, a court must "consider the record as a 11 whole, weighing both evidence that supports and detracts from the [ALJ's] conclusion." 12 Aukland v.Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citations omitted). If the 13 evidence can reasonably support either affirming or reversing the ALJ's decision, "the 14 court may not substitute its judgment for that of the ALJ." Id. at 1035. 15 B. Discussion2 16 1. The Absence of Mental Limitations in the RFC 17 Plaintiff argues that the ALJ failed to include her mental impairments in the RFC 18 analysis despite finding that these impairments cause no more than "mild" limitations. 19 (Doc 14 at 9). Plaintiff states that the regulation requires an ALJ to consider the 20 functional effects of even non-severe impairments in the RFC and the ALJ failed to do 21 so. (Id.). Defendant disagrees, stating that a step-two finding is "merely a threshold 22 determination of a claimant's ability to perform past work" and that she "does not 23 identify any credible substantial evidence in the record of specific mental functional 24 limitations" that would have impacted the ALJ's analysis. (Doc. 15 at 4). 25 The Court finds that the ALJ's RFC analysis does account for mental impairments 26 of depression and anxiety. (AR 40). First, the ALJ included "depression and anxiety" 27 when analyzing the totality of Plaintiff's alleged impairments but found no evidence that 28 2 Citations to "AR" are to the Administrative Record. -2- 1 they significantly interfered with her ability to perform basic work functions. (AR 40-41). 2 In so finding, the ALJ considered the four functional areas, or "paragraph B" criteria.3 3 (AR 34). At step-three the ALJ found that Plaintiff's medically determinable 4 impairments of depression and anxiety do not cause more than minimal limits in her 5 ability to perform basic mental work activities and are therefore non-severe. (Id.) The 6 ALJ found mild limitations in activities of daily living, in areas of concentration, 7 persistence or pace but found no episodes of decompensation of an extended duration. 8 (Id.). In the RFC analysis, the ALJ goes on to discuss Plaintiff's depression and anxiety 9 stating that "treatment records intermittently document these diagnoses. . . and [she] is 10 taking Alprozalam for anxiety and Pristiq for depression[,] [h]owever, there is no 11 evidence [she] has ever sought treatment from a mental health professional. Furthermore 12 she did not testify to mental functional limitations secondary to the anxiety and 13 depression, headaches,/migraines, the side effects of her medication, or symptoms of 14 fatigue and insomnia." (AR 40-41). Finally, in finding that Plaintiff is capable of 15 performing past relevant work as a hand packager, the ALJ relied upon the vocational 16 expert's opinion that compared her RFC with the physical and mental demands of her 17 prior work. Given the scant record evidence of Plaintiff's mental impairments, the ALJ 18 committed no error. 19 2. Credibility Determination 20 Plaintiff next argues that the ALJ erred in finding that her symptom testimony 21 lacks credibility. Defendant disagrees. In assessing credibility "[f]irst, the ALJ must 22 determine whether the claimant has presented objective medical evidence of an 23 underlying impairment 'which could reasonably be expected to produce the pain or other 24 symptoms alleged.'" Lingenfelter v. Astrue, 504 F.3d 1028, 1035-1036 (9th Cir. 2007) 25 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc). Second, if the 26 claimant satisfies this test, absent any evidence of malingering, "the ALJ can reject the 27 3 To satisfy the "paragraph B" criteria, Plaintiff's mental impairments must result in at least two marked restrictions of activities of daily living, marked difficulties in 28 maintaining social functioning, marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration. -3- 1 claimant's testimony about the severity of [her] symptoms only by offering specific, clear 2 and convincing reasons for doing so." Id. at 1281. The ALJ's findings must be 3 "'sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 4 discredit claimant's testimony.'" Turner v. Comm'r of Soc. Sec. Admin., 613 F.3d 1217, 5 1224 n. 3 (9th Cir. 2010) (quoting Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 6 2002)). 7 The ALJ provided numerous and specific reasons for discounting Plaintiffs 8 credibility. The ALJ found that "objective physical examinations do not support the 9 limitations that [she] alleges." (AR 38). The ALJ then discussed the findings of Dr. Lim 10 in April 2013, Plaintiff's primary care provider in March 2014 and in July 2015. (AR 38- 11 9). The ALJ concluded that Plaintiff has some functional limits consistent with her 12 impairments but not to the extent she complained of. (AR 39). The ALJ observed that 13 Plaintiff's allegations of severely limiting pain lacked credibility "in light of [her] 14 extremely conservative level of treatment and pain management," (Id.) The ALJ 15 observed that she "has rarely been treated with anything stronger than over-the-counter 16 medications." (Id.). See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (in 17 assessing credibility the ALJ may consider "unexplained or inadequately explained 18 failure to seek treatment[.]"). 19 In addition, the ALJ considered Plaintiff's alleged symptoms in light of her daily 20 activities. The ALJ found discrepancies between her initial disability report and her 21 testimony in that she initially reported major dizziness, inability to bend over, difficulty 22 dressing, bathing, cleaning, cooking and opening jars. (Id. at 38). Yet in her testimony 23 she described daily activities of walking 20 minutes, showering, making breakfast, lunch 24 and dinner and cleaning house, doing laundry, dusting, driving and other daily activities. 25 The ALJ concluded that "[c]onsidered as a whole, [her] level of reported activity 26 demonstrates greater exertional and non-exertional functional capacity than [she] 27 alleges." (Id. at 38). The Court finds that the ALJ provided sufficiently clear and 28 convincing reasons for her credibility determination. No error occurred here. -4- 1 C. Conclusion 2 On review of the record, for the reasons stated herein, the Court finds that 3 substantial evidence supports the ALJ's determination. Accordingly, 4 IT IS ORDERED affirming the decision of the Commissioner. The Clerk of the 5 Court is kindly directed to enter judgment accordingly and terminate this appeal. 6 Dated this 21st day of June, 2018. 7 8 9 Honorable Diane J. Humetewa 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

Clerks Judgment

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Angelica Ponce, No. CV-17-01524-PHX-DJH 10 Plaintiff, JUDGMENT IN A CIVIL CASE 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Decision by Court. This action came for consideration before the Court. The 16 issues have been considered and a decision has been rendered. 17 IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed 18 June 21, 2018, the decision of the Commissioner of Social Security is AFFIRMED and 19 this action is hereby terminated. 20 21 Brian D. Karth 22 District Court Executive/Clerk of Court 23 June 21, 2018 24 s/ L. Figueroa 25 By Deputy Clerk 26 27 28

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Description
1
05/18/2017
COMPLAINT. Filing fee received: $400.00, receipt number 0970-14242238 filed by Angelica Ponce. (submitted by Howard Olinsky)
1
Exhibit
2
https://ecf.azd.uscourts.gov/doc1/025117387640" onClick="goDLS{{'/doc1/025117387640','1034311','6','','2','1','',''}};">2</a> Civil Cover Sheet)
2 Attachments
2
05/18/2017
SUMMONS Submitted by Angelica Ponce. (submitted by Howard Olinsky)
1
Summons
2
https://ecf.azd.uscourts.gov/doc1/025117387666" onClick="goDLS{{'/doc1/025117387666','1034311','8','','2','1','',''}};">2</a> Summons)
2 Attachments
3
05/18/2017
Filing fee paid, receipt number 0970-14242238. This case has been assigned to the Honorable Diane J. Humetewa. All future pleadings or documents should bear the correct case number: CV-17-01524-PHX-DJH. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached.
4
05/18/2017
Summons Issued as to Commissioner of Social Security Administration (via Office of the Regional Chief Counsel, Region X), U.S. Attorney and U.S. Attorney General.
1
Summons
2
https://ecf.azd.uscourts.gov/doc1/025117387700" onClick="goDLS{{'/doc1/025117387700','1034311','12','','2','1','',''}};">2</a> Summons)
2 Attachments
5
05/18/2017
NOTICE TO FILER OF DEFICIENCY re: 1 Complaint filed by Angelica Ponce. Document not in compliance with LRCiv 7.1(c) - Documents shall be converted to PDF directly from a word processing program and per Administrative Policies and Procedures Manual must be text searchable. No further action is required. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
6
05/19/2017
SOCIAL SECURITY SCHEDULING ORDER: This action was commenced on May 18, 2017 and assigned to an expedited track pursuant to Local Rule of Civil Procedure 16.2 (b)(1)(A)(i). IT IS ORDERED that the parties must fully comply with the following deadlines and procedures: See document for full details. Signed by Judge Diane J Humetewa on 5/18/2017.
05/19/2017
Remark: Pro hac vice motion granted for Howard D Olinsky on behalf of plaintiff. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
7
06/22/2017
SERVICE EXECUTED filed by Angelica Ponce: Return of Service re: Summons, Complaint and Scheduling Order upon US Attorney's Office, Office of General Counsel, Attorney General on 6/12/2017.
8
07/08/2017
NOTICE OF ATTORNEY APPEARANCE: Daphne Banay appearing for Commissioner of Social Security Administration.
9
08/11/2017
ANSWER to [1] Complaint by Commissioner of Social Security Administration.
10
08/11/2017
NOTICE of Filing Certified Copy of Administrative Transcript filed by Commissioner of Social Security Administration.
1
001 Certification Page
2
002 Court Transcript Index
3
003 Documents Related to Administrative Process Including Transcript of Oral He
4
004 Payment Documents and Decisions
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005 Jurisdictional Documents and Notices
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006 Non Disability Related Development
7
007 Disability Related Development
8
008 Medical Records Part 1
9
009 Medical Records Part 2
10
010 Medical Records Part 3
10 Attachments
11
10/10/2017
MOTION for Extension of Time to File Opening Brief by Angelica Ponce.
12
10/10/2017
MOTION for Extension of Time to File Corrected by Angelica Ponce.
1
Text of Proposed Order Proposed Order
1 Attachment
13
10/10/2017
ORDER granting the [11], [12] Motions for Extension of Time and Plaintiffshall have up to and including November 9, 2017 to file an Opening Brief. Signed by Judge Diane J Humetewa on 10/10/2017.(LFIG)
14
11/09/2017
OPENING BRIEF by Angelica Ponce.
15
12/05/2017
RESPONSE BRIEF by Commissioner of Social Security Administration.
16
12/20/2017
REPLY BRIEF by Angelica Ponce.
17
06/21/2018
Order
18
06/21/2018
Clerks Judgment
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