Ressler v. Colvin
Court Docket Sheet

District of Arizona

2:2013-cv-02471 (azd)

MANDATE of USCA reversing District Court decision and remanding re: 15-15979 as to [25] Notice of Appeal filed by Barbara Ann Ressler.

Case 2:13-cv-02471-SPL Document 31 Filed 06/12/17 Page 1 of 1 UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 12 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS BARBARA ANN RESSLER, No. 15-15979 Plaintiff-Appellant, D.C. No. 2:13-cv-02471-SPL v. U.S. District Court for Arizona, Phoenix NANCY A. BERRYHILL, Acting Commissioner Social Security, MANDATE Defendant-Appellee. The judgment of this Court, entered April 18, 2017, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. Costs are taxed against the appellee in the amount of $228.90. FOR THE COURT: MOLLY C. DWYER CLERK OF COURT By: Rebecca Lopez Deputy Clerk Ninth Circuit Rule 27-7

Memorandum

Case 2:13-cv-02471-SPL Document 31-1 Filed 06/12/17 Page 1 of 6 FILED NOT FOR PUBLICATION APR 18 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BARBARA ANN RESSLER, No. 15-15979 Plaintiff-Appellant, D.C. No. 2:13-cv-02471-SPL v. MEMORANDUM* NANCY A. BERRYHILL, Acting Commissioner Social Security, Defendant-Appellee. Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding Argued and Submitted March 17, 2017 San Francisco, California Before: WARDLAW and GOULD, Circuit Judges, and SHEA,** District Judge. Barbara Ressler appeals the district court’s order affirming the Commissioner’s denial of Ressler’s application for supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward F. Shea, United States District Judge for the Eastern District of Washington, sitting by designation. Case 2:13-cv-02471-SPL Document 31-1 Filed 06/12/17 Page 2 of 6 Ressler claimed that disability entitled her to supplemental security income based on a schizophrenia diagnosis. After performing the five step disability evaluation set forth in 20 C.F.R. § 416.920, the Administrative Law Judge (ALJ) concluded that Ressler was not disabled within the meaning of the Social Security Act because she could perform work available in sufficient quantities in the national economy. The district court affirmed. Ressler asserts that the ALJ committed two errors that require reversal: (1) the ALJ inappropriately failed to perform a function-by-function analysis as to residual functional capacity; and (2) the ALJ erred in relying on the Medical-Vocational Guidelines at Step 5, rather than taking testimony from a vocational expert. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse the judgment of the district court and remand with instructions to remand to the ALJ for an award of benefits. I. Ressler’s medical background and relevant facts are known to the parties and need not be recited here. II. 2 Case 2:13-cv-02471-SPL Document 31-1 Filed 06/12/17 Page 3 of 6 A district court’s order upholding the Commissioner’s denial of benefits is reviewed de novo. See Carillo-Yeras v. Astrue, 671 F.3d 731, 734 (9th Cir. 2011). We will uphold the Commissioner’s decision if it is free of legal error and supported by substantial evidence. Id. III. The ALJ need not perform a function-by-function analysis for conditions or impairments that the ALJ "found neither credible nor supported by the record." Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). In order for this standard to apply, however, the ALJ must have properly rejected evidence supported by the record and contained in credible testimony. Here, the ALJ erred by improperly weighing medical evidence and improperly weighing the testimony of Ressler and Schindler. Applying the proper analysis, Ressler has significant nonexertional limitations. The ALJ should have performed a function-by-function analysis and taken vocational expert testimony. The ALJ applied the incorrect standard when rejecting medical evidence. Our cases clearly hold that an ALJ "must explain why significant probative evidence has been rejected." Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (internal quotation marks omitted). Our precedent also sets specific standards for rejecting medical evidence, see Bayliss, 427 F.3d at 1216, in 3 Case 2:13-cv-02471-SPL Document 31-1 Filed 06/12/17 Page 4 of 6 addition to the general "demand that the agency set forth the reasoning behind its decisions in a way that allows for meaningful review." Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). This is particularly true when the ALJ accepts portions of a medical opinion, but rejects other portions of the opinion. The ALJ failed to apply these standards. The ALJ explained that he gave weight to the medical opinions and medical evidence in the record "to the extent that they are consistent with this decision." Such a standard is nowhere reflected in our case law and the ALJ’s application of it constitutes an error of law. In addition, the ALJ improperly determined that the testimony of Ressler and Schindler was not credible. This Court has explained that "impairments that would unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all day." Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). The ALJ relied on Ressler’s minimal daily activities to determine that the testimony was not credible. This was improper, as Ressler’s activities did not indicate an ability to work. Especially given the fact that there was no evidence or claim of malingering, the ALJ’s explanation for rejecting Ressler’s testimony was insufficient. Burrell v. Colvin, 775 F.3d 1133, 1136–37 (9th Cir. 2014) (affirming that an ALJ must 4 Case 2:13-cv-02471-SPL Document 31-1 Filed 06/12/17 Page 5 of 6 provide "specific, clear, and convincing reasons" for rejecting a claimant’s testimony, unless there is evidence of malingering). Finally, due to the severe nonexertional limitations reflected by the record and by the testimony of Ressler and Schindler, the Medical-Vocational Grid categories did not fully reflect Ressler’s limitations. The ALJ was therefore required to take testimony from a vocational expert, rather than relying on the Medical-Vocational Guidelines. Holohan v. Massanari, 246 F.3d 1195, 1208–09 (9th Cir. 2001). IV. As a result of the error discussed above, the application of the credit-as-true rule is appropriate in this case. That rule requires that: (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. Garrison, 759 F.3d at 1020. Here, all three requirements of the credit-as-true rule are satisfied. First, there is no need to develop the record or convene further proceedings. Although 5 Case 2:13-cv-02471-SPL Document 31-1 Filed 06/12/17 Page 6 of 6 the ALJ did not perform a function-by-function analysis, that failure does not necessarily require remand. See id. at 1021 n.28. Moreover, in response to questioning by Ressler’s representative, the vocational expert opined that an individual who would be unable to stay on task for 15 percent of a work day would be unable to maintain employment. Based on this limited testimony and the evidence in the record of Ressler’s inability to maintain focus throughout the day, further proceedings are not required to determine whether Ressler is disabled. Second, as explained above, the ALJ failed to apply the proper legal standard for rejecting medical evidence and testimony. Third, if the medical opinions and testimony is weighed appropriately, and if such evidence is properly credited as true, then in light of the vocational expert’s testimony the ALJ would be required to make a finding that Ressler was disabled on remand. Finally, there is nothing in the record as a whole that creates serious doubt about whether Ressler is, in fact, disabled within the meaning of the Social Security Act. Accordingly, the Court remands for a calculation and award of benefits. REVERSED and REMANDED. 6

NDA

15-15979 Barbara Ressler v. Nancy Berryhill "Mandate Issued" Page 1 of 1 Case 2:13-cv-02471-SPL Document 31-2 Filed 06/12/17 Page 1 of 1 15-15979 Barbara Ressler v. Nancy Berryhill "Mandate Issued" ca9_ecfnoticing to: 06/12/2017 10:00 AM Hide Details From: ca9_ecfnoticing@ca9.uscourts.gov To: ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. United States Court of Appeals for the Ninth Circuit Notice of Docket Activity The following transaction was entered on 06/12/2017 at 10:00:02 AM PDT and filed on 06/12/2017 Case Name: Barbara Ressler v. Nancy Berryhill Case Number: 15-15979 Document(s): Document(s) Docket Text: MANDATE ISSUED.(KMW, RMG and EFS) Costs taxed against Appellee in the amount of $228.90. [10468368] (Lopez, Rebecca) Notice will be electronically mailed to: Meghan Frei Berglind, Special Assistant U.S. Attorney Paul Bradford Eaglin, Attorney USDC, Phoenix The following document(s) are associated with this transaction: Document Description: Mandate Order Original Filename:/opt/ACECF/live/forms/RebeccaJ.Lopez_1515979_10468368_v2Order-Mandate_216.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1106763461 [Date=06/12/2017] [FileNumber=10468368-0] [7a7854ed671c807792eec2de72f9a695e90f20732741c6bd65b4b3b2bb48cab6ca9c289fa5dc19eab703685098670c7dda47aea85b5a4dab0501129b9ba89035]] Recipients: • Meghan Frei Berglind, Special Assistant U.S. Attorney • Paul Bradford Eaglin, Attorney • USDC, Phoenix The following information is for the use of court personnel: DOCKET ENTRY ID: 10468368 RELIEF(S) DOCKETED: DOCKET PART(S) ADDED: 12334196 file:///C:/Users/LPATTON/AppData/Local/Temp/notes686CD9/~web8324.... 6/12/2017

ORDER - Remanding this case to the Administrative Law Judge for the calculation and award of benefits consistent with the opinion of the Ninth Circuit Court of Appeals. To the extent a judgment is required for this case to be remanded, this Order shall serve as the judgment. Signed by Judge Steven P Logan on 06/12/2017.

Case 2:13-cv-02471-SPL Document 32 Filed 06/13/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8) No. CV-13-02471-PHX-SPL Barbara Ann Ressler, 9)) Plaintiff,) ORDER 10) vs. 11)) Commissioner of Social Security) 12 Administration,) 13)) Defendant.) 14 15 The Ninth Circuit Court of Appeals having remanded this case for a calculation 16 and award of benefits (Doc. 31), 17 IT IS ORDERED remanding this case to the Administrative Law Judge for the 18 calculation and award of benefits consistent with the opinion of the Ninth Circuit Court 19 of Appeals. 20 IT IS FURTHER ORDERED that to the extent a judgment is required for this 21 case to be remanded, this Order shall serve as the judgment. 22 Dated this 12th day of June, 2017. 23 24 Honorable Steven P. Logan United States District Judge 25 26 27 28

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

Case 2:13-cv-02471-SPL Document 33 Filed 09/01/17 Page 1 of 3 1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Barbra Ann Ressler 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Barbra Ann Ressler, 13 14 Plaintiff, Civil No. 2-13-cv-02471-PHX-SPL 15 16 vs. MOTION FOR ATTORNEY’S 17 FEES PURSUANT TO THE 18 Commissioner of Social Security, EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C.A. § 2412 (WEST) 19 Defendant 20 21 PLAINTIFF’S MOTION FOR ATTORNEY’S FEES PURSUANT TO THE 22 EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412 23 24 COUNSEL: 25 PLEASE TAKE NOTICE that upon the annexed affirmation of Howard 26 27 D. Olinsky, attorney for the plaintiff, and other papers, the plaintiff will make a 28 motion before Hon. Steven P. Long, at Sandra Day O’Connor U.S. Courthouse, Page 1 Case 2:13-cv-02471-SPL Document 33 Filed 09/01/17 Page 2 of 3 1 Suite 521, 401 West Washington Street, SPC 82, Phoenix, AZ 85003 on a date to 2 be set by the court, for an order: 3 4 1. Awarding an Equal Access to Justice Act Counsel Fee for $19,314.43, and 5 2. Awarding Expenses in the amount of $998.77; and 6 7 3. If the Plaintiff has no debt registered with the Department of Treasury 8 subject to offset that the fees be made payable to the attorney. 9 10 Plaintiff, by her attorney, Howard D. Olinsky moves the court for an award to be 11 paid by the Defendant under the Equal Access to Justice Act, 28 U.S.C.A. § 2412. 12 13 14 Plaintiff may receive an award under the Equal Access to Justice Act because she 15 is the prevailing party, is an individual whose net worth did not exceed two 16 17 million dollars when the action was filed, and the position of the United States in 18 this litigation and/or at the agency was not substantially justified. Although the 19 burden of proof on substantial justification is on the government, Plaintiff’s 20 21 supporting memorandum briefly addresses this issue. 22 23 There are no special circumstances in this case which make an award under the 24 25 EAJA unjust. 26 This motion is supported by an affirmation of Plaintiff’s attorney, attached time 27 and cost records and an Affidavit and Waiver of Direct Payment by the plaintiff. 28 Page 2 Case 2:13-cv-02471-SPL Document 33 Filed 09/01/17 Page 3 of 3 1 2 Executed this September 1, 2017 3 4 Respectfully submitted, 5/s/Howard D. Olinsky 6 Howard D. Olinsky, Esq. Admitted Pro Hac Vice 7 Attorney for Plaintiff 8 Email: fedct@windisability.com 9 To: John S. Leonardo, Esq. 10 United States Attorney 11 Meghan Frei Berglind, Esq. 12 Attorney for Nancy A. Berryhill, Esq. Assistant Regional Counsel, Region VIII 13 Social Security Administration 14 Office of the General Counsel 15 1961 Stout Street, Suite 4169 Denver, CO 80294 16 Telephone: (303) 844-2544 17 Facsimile: (303) 844-0770 18 Email: meghan.berglind@ssa.gov 19 Attorneys for Defendant 20 21 22 23 24 25 26 27 28 Page 3

Text of Proposed Order

Case 2:13-cv-02471-SPL Document 33-1 Filed 09/01/17 Page 1 of 3 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 10 11 12 Barbara Ann Ressler, Civil No. 2-13-cv-02471-PHX-SPL 13 Plaintiff, 14 15 vs. (PROPOSED) ORDER AWARDING ATTORNEY’S FEES 16 PURSUANT TO THE EQUAL 17 Commissioner of Social Security, ACCESS TO JUSTICE ACT, 18 28 U.S.C. § 2412(D) Defendant 19 20 (Proposed) Order Awarding Attorney’s Fees 21 pursuant to the Equal Access to Justice Act, 22 23 28 U.S.C. § 2412(d) 24 Before the Court is the Motion of Plaintiff Barbara Ann Ressler, for award 25 of attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 26 2412(d). Based on the pleadings as well as the position of the defendant 27 28 Page 1 Case 2:13-cv-02471-SPL Document 33-1 Filed 09/01/17 Page 2 of 3 1 commissioner, if any, and recognizing the Plaintiff’s waiver of direct payment and 2 assignment of EAJA to her counsel, 3 4 5 IT IS HEREBY ORDERED that attorney fees in the total amount of 6 Nineteen Thousand Three Hundred Fourteen Dollars and Forty-Three Cents 7 8 ($19,314.43) pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) are 9 awarded to Plaintiff. Astrue v. Ratliff, 130 S.Ct. 2521 (2010). 10 11 IT IS FURTHER ORDERD that Plaintiff is awarded Nine Hundred Ninety-12 13 Nine Dollars and Seventy-Seven Cents ($998.77) in expenses for travel expenses 14 for attendance of Oral Arguments and postage for mailing brief and Excerpts, and 15 Reply Brief to the Court. 16 17 18 If the U.S. Department of the Treasury determines that Plaintiff’s EAJA 19 fees are not subject to offset allowed under the Department of the Treasury’s 20 21 Offset Program (TOPS), then the check for EAJA fees shall be made payable to 22 Plaintiff’s attorney, Howard D. Olinsky. 23 24 25 Whether the check is made payable to Plaintiff or to Howard D. Olinsky, 26 27 28 Page 2 Case 2:13-cv-02471-SPL Document 33-1 Filed 09/01/17 Page 3 of 3 1 the check shall be mailed to Howard D. Olinsky at the following address: 2 300 South State Street 3 Suite 420 4 Syracuse, NY 13202 5 6 DATED: 7 8 9 ____________________________ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 3

AFFIDAVIT of Howard D. Olinsky, Esq. re: [33] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Plaintiff Barbara Ann Ressler.

Case 2:13-cv-02471-SPL Document 34 Filed 09/01/17 Page 1 of 5 1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Barbra Ann Ressler 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Barbra Ann Ressler, 13 14 Plaintiff, Civil No. 2-13-cv-02471-PHX-SPL 15 16 vs. Attorney’s affirmation in support of 17 Fees Pursuant to the Equal Access to 18 Commissioner of Social Security, Justice Act, 28 U.S.C.A. § 2412 (West) 19 Defendant 20 21 Attorney’s Affirmation in Support of Fees Pursuant to the Equal Access to 22 Justice Act, 28 U.S.C. § 2412 23 ________________________________________ STATE OF NEW YORK) 24 COUNTY OF ONONDAGA) ss: 25 Howard D. Olinsky, being duly sworn deposes and states: 26 27 1. I am an attorney licensed to practice law in the State of New York, 28 admitted to practice pro hac vice before this Court. Page 4 Case 2:13-cv-02471-SPL Document 34 Filed 09/01/17 Page 2 of 5 1 2. I make this affirmation knowing that the Court will rely upon it in 2 assessing any awards under the Equal Access to Justice Act. 28 U.S.C.A. § 2412. 3 4 3. There are no special circumstances in this case which make an award 5 under the EAJA unjust. 6 4. This Court ordered and entered Judgment on June 12, 2017 that the 7 8 above-entitled case be remanded for calculation for an award of benefits, under the 9 fourth sentence of 42 U.S.C.A. § 405(g) (West) after the case was originally 10 denied by this Court, then appealed to the 9th Circuit Court of Appeals who 11 reversed and remanded this case back to this Court with instructions to remand for 12 13 a calculation of benefits. 14 5. For the Equal Access to Justice Act, I am requesting an hourly rate 15 of $187.02 for attorney time through 2013, $190.06 for attorney time through 16 17 2014, $190.28 for attorney time through 2015, $192.68 for attorney time through 18 2016, and $195.58 for attorney time through 2017. See generally, 19 http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 U.S.C.A 9th 20 21 Circuit EAJA Table. If attorney fees are calculated at a rate of $187.02 for 3.2 22 hours of work performed through 2013, they total $598.46. If attorney fees are 23 calculated at a rate of $190.06 for 25.2 hours of work performed through 2014, 24 25 they total $4,789.51. If attorney fees are calculated at a rate of $190.28 for 46.7 26 hours of work performed through 2015, they total $8,886.08. If attorney fees are 27 calculated at a rate of $192.68 for.2 hours of work performed through 2016, they 28 Page 5 Case 2:13-cv-02471-SPL Document 34 Filed 09/01/17 Page 3 of 5 1 total $38.54. If attorney fees are calculated at a rate of $195.95 for 19.3 hours of 2 work performed through 2017, they total $3,781.84 (this includes 15 hours of 3 4 travel time at the rate of $97.98, half of the EAJA attorney rate, for the oral 5 argument appearance).. I am also requesting $100.00 per hour for 12.2 hours of 6 paralegal time equaling $1,220.00. I am requesting $19,314.43 for Counsel Fees 7 8 which include attorney and paralegal time. 9 7. The time accounting is presented to the court in two fashions. 10 Exhibit A is the time spent by all who worked on this case in chronological 11 sequence. Exhibit B is broken down by attorneys. The attorneys involved in this 12 13 case are Howard D. Olinsky, Esq., and Paul B. Eaglin, Esq. Exhibit C is broken 14 down by paralegals. The paralegals involved in this case are Shannon Persse, 15 Michael Smith, and Michelle Callahan. 16 17 8. I am requesting reimbursement of expenses of $72.50 for the mailing 18 of the Brief and Excerpts, and Reply Brief to the Court as shown on Exhibit D. I 19 am requesting reimbursement of expenses in the amount of $926.27 for travel 20 21 related expenses incurred to attend Oral Argument held on March 17, 2017 in San 22 Francisco, California. Exhibit E is the break down for the charges related to the 23 flight and hotel. I am requesting a total reimbursement of expenses in the amount 24 25 of $998.77. 26 9. The attached records were contemporaneously created and stored in 27 the firm’s Prevail Database, and are printed out and attached. The itemized time 28 Page 6 Case 2:13-cv-02471-SPL Document 34 Filed 09/01/17 Page 4 of 5 1 represents hours spent preparing and handling this case for U.S. District Court. 2 Clerical time is not included in this petition or has been zeroed out. 3 4 Waiver of Direct Payment of EAJA Fees 5 10. Attached is an Affidavit and Waiver of Direct Payment duly 6 executed by the plaintiff (Exhibit F). With this Waiver, if Plaintiff owes a debt 7 8 that qualifies under the Treasury Offset Program (31 USCS § 3716), any payment 9 shall be made payable to the Plaintiff and delivered to the Plaintiff’s attorney. If 10 the United States Department of Treasury determines that Plaintiff owes no debt 11 subject to offset, the government may accept the assignment of EAJA fees and pay 12 13 such fees directly to the Plaintiff’s attorney. Astrue v. Ratliff, 560 U.S. 586 (U.S. 14 2010). 15 16 17 WHEREFORE, because all four elements of an allowable application for 18 EAJA fees have been proven, petitioner requests that the Court issue an order: 19 20 1. Awarding an Equal Access to Justice Act Counsel Fee for 21 $19,314.43; and 22 23 2. Awarding Expenses in the amount of $998.77; and 24 3. If the Plaintiff has no debt registered with the Department of Treasury 25 subject to offset that the fees be made payable to the attorney. 26 27 28 Executed this September 1, 2017 Page 7 Case 2:13-cv-02471-SPL Document 34 Filed 09/01/17 Page 5 of 5 1 2 Respectfully submitted, 3/s/Howard D. Olinsky 4 Howard D. Olinsky, Esq. Admitted Pro Hac Vice 5 Attorney for Plaintiff 6 Email: fedct@windisability.com 7 To: John S. Leonardo 8 United States Attorney 9 Meghan Frei Berglind, Esq. 10 Attorney for Nancy A. Berryhill, Esq. Assistant Regional Counsel, Region VIII 11 Social Security Administration 12 Office of the General Counsel 13 1961 Stout Street, Suite 4169 Denver, CO 80294 14 Telephone: (303) 844-2544 15 Facsimile: (303) 844-0770 16 Email: meghan.berglind@ssa.gov 17 Attorneys for Defendant 18 19 20 21 22 23 24 25 26 27 28 Page 8

Exhibit All Professional Time

Exhibit A Case 2:13-cv-02471-SPL Document 34-1 Filed 09/01/17 Page 2 of 6 Ledger Ressler, Barbara Date  Subject Hours Timekeeper 10/31/2013 Files received, reviewed and processed from referral source for Attorney review 0.7 Persse, Shannon 11/5/2013 Review decisions and evidence to determine whether to appeal case 1 Olinsky, Howard D. 11/5/2013 Telephone call with Client re: Debt conference call, explained process 0.4 Smith, Michael P. 11/5/2013 FDC prospect packet prepared for Client completion 0.6 Persse, Shannon 11/5/2013 Telephone call with Client re: Assistance with in forma pauperis application 0.5 Persse, Shannon 11/5/2013 FDC prospect packet sent to Client via USPS 0.2 Persse, Shannon 11/12/2013 Telephone call with Client re: Follow up on forms, review fee agreement terms 0.3 Persse, Shannon 11/15/2013 Telephone call with Client re: Follow up on fdc forms packet-mailed back 0.1 Persse, Shannon 11/20/2013 FDC Prospect packet returned via USPS, reviewed for completion 0.3 Smith, Michael P. 12/4/2013 Correspondence to Client re: Federal Court-Accept Letter-New FDC Filing 0.3 Smith, Michael P. 12/4/2013 Draft Complaint, Proposed Summons, Letter to Clerk, and Civil Cover Sheet 0.7 Olinsky, Howard D. 12/4/2013 Review Motion to Proceed In Forma Pauperis, approve for filing 0.2 Olinsky, Howard D. 12/4/2013 Draft application for Pro Hac Vice admission 0 Olinsky, Howard D. 12/4/2013 File all initial case documents via cm/ecf 0 Smith, Michael P. 12/4/2013 Download, file, save and distribute ECF re: Complaint, Civil Cover Sheet 0 Persse, Shannon 12/4/2013 Download, file, save and distribute ECF re: Summons submitted 0 Persse, Shannon 12/4/2013 Download, file, save and distribute ECF re: Application for leave to proceed IFP 0 Persse, Shannon 12/4/2013 Download, file, save and distribute ECF re: Summons submitted 0 Persse, Shannon 12/4/2013 Dwld, file, save & distribute ECF re: Case assigned to Honorable G. Murray Snow 0 Persse, Shannon 12/4/2013 Review Case assigned Hon. G. Murray Snow, research individual rules & practices 0.3 Olinsky, Howard D. 12/4/2013 Download, file, save and distribute ECF re: Motion for admission Pro Hac Vice 0 Persse, Shannon 12/4/2013 Download, file, save and distribute ECF re: Notice to filer of deficiency 0 Persse, Shannon 12/4/2013 Review Notice to filer of deficiency re: Complaint not in compliance LR 7.1(c) 0 Olinsky, Howard D. 12/5/2013 Download, file, save and distribute ECF re: Order granting IFP application 0 Persse, Shannon 12/5/2013 Review Order granting In Forma Pauperis application, directing service 0.1 Olinsky, Howard D. 12/5/2013 Download, file, save and distribute ECF re: Social Security scheduling order 0 Persse, Shannon 12/5/2013 Review Scheduling order, calender deadlines on task pad 0.3 Olinsky, Howard D. 12/6/2013 Download, file, save and distribute ECF re: Summons issued 0 Persse, Shannon 12/6/2013 Review Summons Issued 0.2 Olinsky, Howard D. 12/9/2013 Download, file, save and distribute ECF re: Pro Hac Vice fee paid 0 Persse, Shannon 12/9/2013 Download, file, save and distribute ECF re: Order granting Pro Hac Vice 0 Persse, Shannon 12/9/2013 Review Order granting Motion for Pro Hac Vice 0 Olinsky, Howard D. 12/10/2013 Federal Court-Service of Process-prepare service packets USAO, OGC, AG 0.6 Smith, Michael P. 12/16/2013 Download, file, and save electronic return receipts USAO, OGC, AG 0 Persse, Shannon 12/16/2013 Combine and file proof of service via CM/ECF 0.3 Persse, Shannon 12/16/2013 Download, file, save and distribute ECF re: Service executed 0 Persse, Shannon 12/16/2013 Review service executed, confirm scheduling order calendared 0.2 Olinsky, Howard D. 12/19/2013 Dwld, file, save & distribute ECF re: Notice of appearance Michael A. Johns 0 Persse, Shannon 12/19/2013 Review Notice of appearance Michael A. Johns o/b/o Carolyn W. Colvin 0.1 Olinsky, Howard D. 12/23/2013 Dwld, file, save & distribute ECF re: Notice of appearance Daniel Burrows 0 Persse, Shannon 12/23/2013 Review Notice of appearance Daniel Burrows o/b/o Carolyn W. Colvin 0.1 Olinsky, Howard D. 1/16/2014 Received, processed and distributed Corr. from USAO re: Service acknowledgement 0 Smith, Michael P. 1/16/2014 Review letter from US Attorney re: Acknowledgement of service of process 0.1 Eaglin, Paul B. 106.80 (Client = Ms. Barbara Ann Ressler) and (Type = Time)    Case 2:13-cv-02471-SPL Document 34-1 Filed 09/01/17 Page 3 of 6 Date  Subject Hours Timekeeper 2/17/2014 Download, file, save and distribute ECF re: Answer 0 Persse, Shannon 2/17/2014 Review Answer to complaint 0.1 Eaglin, Paul B. 2/18/2014 Download, file and save transcript in Ten (10 parts) 0.2 Persse, Shannon 3/28/2014 Combine, OCR and live bookmark federal court transcript (448 pages) 0.5 Persse, Shannon 3/28/2014 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 4/10/2014 Review CAR, take notes and organize facts 3.2 Olinsky, Howard D. 4/11/2014 Drafting procedural section, and drafting facts 5 Olinsky, Howard D. 4/14/2014 Research issues and drafting arguments 7.5 Olinsky, Howard D. 4/15/2014 Senior Attorney review draft brief, suggest edits 1.1 Eaglin, Paul B. 4/15/2014 Implement edits, finalize brief, file (n/c for filing) 0.3 Olinsky, Howard D. 4/16/2014 Download, file, save and distribute ECF re: Opening brief 0 Persse, Shannon 4/16/2014 Correspondence to Client re: FYI Enclosing Memo of Law Mailed to Client 0 Persse, Shannon 4/17/2014 Download, file, save and distribute ECF re: Attorney substitution 0 Persse, Shannon 4/17/2014 Review Attorney substitution Meghan Berglind o/b/o Carolyn W. Colvin 0.1 Eaglin, Paul B. 5/12/2014 Telephone call with USAO re: First extension request-Consented 0.2 Smith, Michael P. 5/13/2014 Download, file, save and distribute ECF re: First extension of time request 0 Persse, Shannon 5/13/2014 Review Defendants first extension request 0.1 Olinsky, Howard D. 5/13/2014 Download, file, save and distribute ECF re: Order granting D. extension request 0 Persse, Shannon 5/13/2014 Review Order granting D. extension request, update task pad 0.2 Eaglin, Paul B. 6/30/2014 Download, file, save and distribute ECF re: Response brief by defendant 0 Persse, Shannon 6/30/2014 Review Defendant's response brief (15 pages) 0.5 Eaglin, Paul B. 6/30/2014 Assign Attorney writer to access/write reply brief 0.2 Eaglin, Paul B. 7/1/2014 Download, file, save and distribute ECF re: Notice of reassignment Judge SPL 0 Persse, Shannon 7/1/2014 Review Notice of reassignment to Judge Steven P. Logan, update case number 0.1 Eaglin, Paul B. 7/11/2014 Review briefs in preparation of reply assessment 2 Olinsky, Howard D. 7/11/2014 Draft reply brief 3.8 Olinsky, Howard D. 7/14/2014 Senior Attorney review draft brief, suggest edits 0.2 Eaglin, Paul B. 7/14/2014 Implement edits, finalize brief, file (n/c for filing) 0.2 Olinsky, Howard D. 7/15/2014 Download, file, save and distribute ECF re: Reply brief 0 Persse, Shannon 3/31/2015 Download, file, save & distribute ECF re: Order final decision on SSA confirmed 0 Persse, Shannon 3/31/2015 Review Order final decision of ALJ is affirmed (12 pages) 0.3 Eaglin, Paul B. 3/31/2015 Download, file, save and distribute ECF re: Judgment 0 Persse, Shannon 3/31/2015 Review Judgment in favor of Commissioner 0.1 Eaglin, Paul B. 3/31/2015 Assign Attorney writer to assess for Circuit Court appeal 0.2 Eaglin, Paul B. 5/8/2015 Download, file, save and distribute ECF re: Transcript request 0 Smith, Michael P. 5/13/2015 Review decisions and evidence to determine whether to appeal case 1 Eaglin, Paul B. 5/14/2015 Telephone call with Client re: Review District denial, options to further action 0.5 Eaglin, Paul B. 5/14/2015 Draft and file notice of appeal o/b/o Barbara Ressler 0.3 Eaglin, Paul B. 5/14/2015 Draft Initial Case opening packet, file (n/c for filing) 0.3 Eaglin, Paul B. 5/14/2015 Download, file, save & distribute ECF re: Docketed cause and entered appearances 0 Smith, Michael P. 5/14/2015 Review docketed cause packet, time schedule order, calendar deadline to task pad 0.6 Eaglin, Paul B. 5/15/2015 Download, file, save and distribute ECF re: USCA case number 15-15979 0 Smith, Michael P. 5/15/2015 Review USCA case number, update case number in file 0.2 Eaglin, Paul B. 5/15/2015 Draft and email transcript request (not attorney of record for DC) 0.2 Eaglin, Paul B. 5/15/2015 Download, file, save and distribute ECF re: Notice of Appearance PBE 0 Smith, Michael P. 5/15/2015 Download, file, save and distribute ECF re: Attorney HDO substituted PBE 0 Smith, Michael P. 5/15/2015 Draft & file Mediation questionnaire (n/c for filing) 0.2 Eaglin, Paul B. 106.80 (Client = Ms. Barbara Ann Ressler) and (Type = Time)    Case 2:13-cv-02471-SPL Document 34-1 Filed 09/01/17 Page 4 of 6 Date  Subject Hours Timekeeper 5/15/2015 Download, file, save and distribute ECF re: Filed mediation questionnaire 0 Smith, Michael P. 5/19/2015 Download, file, save and distribute ECF re: Mediation order 0 Smith, Michael P. 5/19/2015 Review mediation order 0.1 Eaglin, Paul B. 8/21/2015 File streamlined request for extension of time for Plaintiff opening brief 0 Eaglin, Paul B. 8/21/2015 Download, file, save & distribute ECF re: Streamlined request re: P. Extenstion 0 Smith, Michael P. 8/24/2015 Download, file, save and distribute ECF re: Streamlined request approved 0 Smith, Michael P. 8/24/2015 Review Streamlined request approved, updated task pad accordingly 0 Eaglin, Paul B. 8/28/2015 Prepare excerpt of record for USCA9thCirc re: Ressler 5 Eaglin, Paul B. 9/2/2015 Review file in preparation of brief writing 5.5 Eaglin, Paul B. 9/3/2015 Continue reviewing file, note taking, briefing outline 6 Eaglin, Paul B. 9/4/2015 Procedural drafting, legal research, brief drafting 4.4 Eaglin, Paul B. 9/7/2015 Continue brief drafting 5.5 Eaglin, Paul B. 9/8/2015 Continue brief drafting, review draft 2.2 Eaglin, Paul B. 9/9/2015 Continue drafting, review draft, make edits and finalize second draft 3 Eaglin, Paul B. 9/10/2015 Senior Attorney review draft brief, suggest edits 1.5 Olinsky, Howard D. 9/10/2015 Implement suggested edits, finalize 1.8 Eaglin, Paul B. 9/10/2015 File via CM/ECF Excerpts of record for review 0 Eaglin, Paul B. 9/10/2015 File via CM/ECF Opening brief for review 0 Eaglin, Paul B. 9/11/2015 Compiling Paper copies Brief and Excerpts for mailing 1 Smith, Michael P. 9/11/2015 Dwld, file, save & distribute ECF re: Submitted (ECF) opening brief for review 0 Smith, Michael P. 9/11/2015 Download, file, save and distribute ECF re: Filed clerk order 0 Smith, Michael P. 9/11/2015 Review Filed Clerk order: 7 brief and 4 excerpts 0.2 Eaglin, Paul B. 9/15/2015 Dwld, file, save & distribute ECF re: Filed Appellant copies excerpts received 0 Smith, Michael P. 9/15/2015 Review filed Appellant paper copies received excerpts 0.1 Eaglin, Paul B. 9/15/2015 Download, file, save and distribute ECF re: Received 7 paper copies brief 0 Smith, Michael P. 9/15/2015 Review Received 7 paper copies brief 0.1 Eaglin, Paul B. 9/29/2015 Download, file, save and distribute ECF re: Filed streamlined extension 0 Smith, Michael P. 9/29/2015 Review ECF streamlined request extension to file Answer 0.1 Eaglin, Paul B. 9/30/2015 Download, file, save & distribute ECF re: Appelle Streamlined request approved 0 Smith, Michael P. 9/30/2015 Review Appelle Streamlined request approved answering brief, update task pad 0.2 Eaglin, Paul B. 11/10/2015 Download, file, save and distribute ECF re: Submitted answering brief for review 0 Callahan, Michelle 11/10/2015 Review Answering brief (44 pages) 1.5 Eaglin, Paul B. 11/10/2015 Assign Attorney writer to access/writer reply (assign myself) 0.2 Eaglin, Paul B. 11/17/2015 Dwld, file, save & distribute ECF re: Received 7 paper copies answering brief 0 Callahan, Michelle 11/17/2015 Review Received 7 paper copies answering brief 0.1 Eaglin, Paul B. 11/23/2015 Review briefs, drafting reply brief 4 Eaglin, Paul B. 11/23/2015 Senior Attorney review draft brief, suggest edits 0.3 Olinsky, Howard D. 11/24/2015 Implement edits, finalize and file (n/c for filing) reply brief 0.3 Eaglin, Paul B. 11/24/2015 Download, file, save and distribute ECF re: Submitted (EFC) Reply for review 0 Callahan, Michelle 11/24/2015 Review Submitted (EFC) Reply for review 0.1 Eaglin, Paul B. 11/25/2015 Compiling Paper copies Reply Brief for mailing 0.5 Persse, Shannon 11/25/2015 Download, file, save and distribute ECF re: Filed Clerk order reply brief 0 Callahan, Michelle 11/25/2015 Review Filed Clerk order re: reply brief 0.1 Eaglin, Paul B. 11/30/2015 Download, file, save and distribute ECF re: Received 7 paper copies 0 Callahan, Michelle 11/30/2015 Review Received 7 paper copies reply brief 0.1 Eaglin, Paul B. 12/10/2015 Download, file, save and distribute ECF re: Notice of attorney withdrawal 0 Callahan, Michelle 12/10/2015 Review Notice of Attorney Withdrawal Michael A. Johns 0.1 Eaglin, Paul B. 106.80 (Client = Ms. Barbara Ann Ressler) and (Type = Time)    Case 2:13-cv-02471-SPL Document 34-1 Filed 09/01/17 Page 5 of 6 Date  Subject Hours Timekeeper 12/11/2015 Download, file, save and distribute ECF re: Notice of filer deficiency 0 Callahan, Michelle 12/11/2015 Review Notice of filer deficiency referring to docket 28 0.1 Eaglin, Paul B. 12/14/2015 Download, file, save and distribute ECF re: Notice of attorney withdrawal 0 Callahan, Michelle 12/14/2015 Review Notice of Attorney Withdrawal Michael A. Johns and waiver of elec. servic 0.1 Eaglin, Paul B. 12/31/2015 Download, file, save and distribute ECF re: Appelle Notice of withdraw associate 0 Callahan, Michelle 12/31/2015 Review Appelle notice of withdraw associate counsel 0 Eaglin, Paul B. 12/31/2015 Download, file, save and distribute ECF re: Terminated Michael A. Johns 0 Callahan, Michelle 12/31/2015 Review Terminated Michael A. Johns for Carolyn W. Colvin 0.1 Eaglin, Paul B. 11/28/2016 Download, file, save and distribute ECF re: Case considered for Oral Arguments 0 Callahan, Michelle 11/28/2016 Review Case considered for Oral Arguments, review upcoming dates per order 0.2 Eaglin, Paul B. 1/4/2017 Download, file, save and distribute ECF re: Notice of oral arguments 0 Callahan, Michelle 1/4/2017 Review Notice of oral arguments 3/17/17, add to task pad 0.3 Eaglin, Paul B. 1/4/2017 Draft and file acknowledgment of hearing notice 0.2 Eaglin, Paul B. 1/4/2017 Download, file, save and distribute ECF re: Acknowledment of hearing 0 Callahan, Michelle 1/6/2017 Make travel arrangements for Oral Arguments attendance 1 Eaglin, Paul B. 2/3/2017 Download, file, save and distribute ECF re: Carolyn W. Colvin substituted NAB 0 Callahan, Michelle 2/3/2017 Review Carolyn W. Colvin substituted by Nancy A. Berryhill 0.1 Eaglin, Paul B. 2/7/2017 Download, file, save & distribute ECF re: Filed Acknowledgmnet of hearing notice 0 Callahan, Michelle 2/7/2017 Review Acknowledgment of hearing notice 0.1 Eaglin, Paul B. 3/14/2017 Download, file, save & distribute ECF re: Appelle citation of supplemental auth 0 Callahan, Michelle 3/14/2017 Review Appelle citation of supplemental authorities 0.1 Eaglin, Paul B. 3/15/2017 Oral Arguments preparation 4.5 Eaglin, Paul B. 3/16/2017 Travel NY to CA for Oral Arg (1/2 rate) 7 hr flight + airport time 2 hrs 4.5 Eaglin, Paul B. 3/17/2017 Final Oral Arguments preparation 1.5 Eaglin, Paul B. 3/17/2017 Oral Arguments-Appearance in person 1 Eaglin, Paul B. 3/18/2017 Travel CA to SYR after Oral Arg (1/2 rate) 6 hr flight + airport time 2 hrs 4 Eaglin, Paul B. 3/20/2017 Download, file, save & distribute ECF re: Argued and submitted to KMW, RMG, EFS 0 Callahan, Michelle 3/20/2017 Review Argued and submitted to KMW, RMG, EFS 0.1 Eaglin, Paul B. 3/20/2017 Download, file, save and distribute ECF re: Filed audio recording 0 Callahan, Michelle 3/20/2017 Rview Filed audio recording of oral arguments available on court website 0.1 Eaglin, Paul B. 4/18/2017 Download, file, save and distribute ECF re: Memorandum and disposition 0 Callahan, Michelle 4/18/2017 Review Memorandum and disposition reversed and remanded (6 pages) 0.2 Eaglin, Paul B. 4/25/2017 Costs Form Drafted and sent to PBE for Signature 0.3 Persse, Shannon 5/2/2017 Review and file Bill of Costs 0.2 Eaglin, Paul B. 5/2/2017 Download, file, save and distribute ECF re: Filed Appellant bill of costs 0 Callahan, Michelle 6/12/2017 Download, file, save and distribute ECF re: Mandate issued 0 Callahan, Michelle 6/12/2017 Review mandate issues costs in the amount of $228.90 0.1 Olinsky, Howard D. 6/12/2017 Download, file, save and distribute ECF re: Mandate reversing and remanding 0 Callahan, Michelle 6/12/2017 Review Mandate reversing and remanding 0.1 Olinsky, Howard D. 6/13/2017 Download, file, save and distribute ECF re: Order remanding COB 0 Callahan, Michelle 6/13/2017 Review Order remanding for calculation of benefits 0.2 Olinsky, Howard D. 6/14/2017 Telephone call with Client re: Status update, explained process of remand COB 0.3 Smith, Michael P. 6/16/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 6/16/2017 Federal Court-Remand referral to AC department for monitoring C.O.B. 0.3 Callahan, Michelle 6/23/2017 Telephone call with US Attorney's Office 0.2 Callahan, Michelle 8/28/2017 EAJA Preparation 1.3 Persse, Shannon 8/29/2017 Continued EAJA Preparation 1.5 Persse, Shannon 106.80 (Client = Ms. Barbara Ann Ressler) and (Type = Time)    Case 2:13-cv-02471-SPL Document 34-1 Filed 09/01/17 Page 6 of 6 Date  Subject Hours Timekeeper 8/30/2017 Review Slips and Finalize EAJA Narrative 1 Olinsky, Howard D. 9/1/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 1.4 Persse, Shannon 106.80 (Client = Ms. Barbara Ann Ressler) and (Type = Time)   

Exhibit B Attorney Time

Exhibit B Case 2:13-cv-02471-SPL Document 34-2 Filed 09/01/17 Page 2 of 7 Ledger Ressler, Barbara Date  Subject Hours Timekeeper 11/5/2013 Review decisions and evidence to determine whether to appeal case 1 Olinsky, Howard D. 12/4/2013 Draft Complaint, Proposed Summons, Letter to Clerk, and Civil Cover Sheet 0.7 Olinsky, Howard D. 12/4/2013 Review Motion to Proceed In Forma Pauperis, approve for filing 0.2 Olinsky, Howard D. 12/4/2013 Draft application for Pro Hac Vice admission 0 Olinsky, Howard D. 12/4/2013 Review Case assigned Hon. G. Murray Snow, research individual rules & practices 0.3 Olinsky, Howard D. 12/4/2013 Review Notice to filer of deficiency re: Complaint not in compliance LR 7.1(c) 0 Olinsky, Howard D. 12/5/2013 Review Order granting In Forma Pauperis application, directing service 0.1 Olinsky, Howard D. 12/5/2013 Review Scheduling order, calender deadlines on task pad 0.3 Olinsky, Howard D. 12/6/2013 Review Summons Issued 0.2 Olinsky, Howard D. 12/9/2013 Review Order granting Motion for Pro Hac Vice 0 Olinsky, Howard D. 12/16/2013 Review service executed, confirm scheduling order calendared 0.2 Olinsky, Howard D. 12/19/2013 Review Notice of appearance Michael A. Johns o/b/o Carolyn W. Colvin 0.1 Olinsky, Howard D. 12/23/2013 Review Notice of appearance Daniel Burrows o/b/o Carolyn W. Colvin 0.1 Olinsky, Howard D. 3.20 (Client = Ms. Barbara Ann Ressler) and (Type = Time) and ((Date < 1/1/2014) and (Date > 12/31/2012)) and ((Timekeeper = Eaglin, Paul...    Case 2:13-cv-02471-SPL Document 34-2 Filed 09/01/17 Page 3 of 7 Ledger Ressler, Barbara Date  Subject Hours Timekeeper 1/16/2014 Review letter from US Attorney re: Acknowledgement of service of process 0.1 Eaglin, Paul B. 2/17/2014 Review Answer to complaint 0.1 Eaglin, Paul B. 3/28/2014 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 4/10/2014 Review CAR, take notes and organize facts 3.2 Olinsky, Howard D. 4/11/2014 Drafting procedural section, and drafting facts 5 Olinsky, Howard D. 4/14/2014 Research issues and drafting arguments 7.5 Olinsky, Howard D. 4/15/2014 Senior Attorney review draft brief, suggest edits 1.1 Eaglin, Paul B. 4/15/2014 Implement edits, finalize brief, file (n/c for filing) 0.3 Olinsky, Howard D. 4/17/2014 Review Attorney substitution Meghan Berglind o/b/o Carolyn W. Colvin 0.1 Eaglin, Paul B. 5/13/2014 Review Defendants first extension request 0.1 Olinsky, Howard D. 5/13/2014 Review Order granting D. extension request, update task pad 0.2 Eaglin, Paul B. 6/30/2014 Review Defendant's response brief (15 pages) 0.5 Eaglin, Paul B. 6/30/2014 Assign Attorney writer to access/write reply brief 0.2 Eaglin, Paul B. 7/1/2014 Review Notice of reassignment to Judge Steven P. Logan, update case number 0.1 Eaglin, Paul B. 7/11/2014 Review briefs in preparation of reply assessment 2 Olinsky, Howard D. 7/11/2014 Draft reply brief 3.8 Olinsky, Howard D. 7/14/2014 Senior Attorney review draft brief, suggest edits 0.2 Eaglin, Paul B. 7/14/2014 Implement edits, finalize brief, file (n/c for filing) 0.2 Olinsky, Howard D. 25.20 (Client = Ms. Barbara Ann Ressler) and (Type = Time) and ((Timekeeper = Eaglin, Paul B.) or (Timekeeper = Olinsky, Howard D.)) and ((Da...    Case 2:13-cv-02471-SPL Document 34-2 Filed 09/01/17 Page 4 of 7 Ledger Ressler, Barbara Date  Subject Hours Timekeeper 3/31/2015 Review Order final decision of ALJ is affirmed (12 pages) 0.3 Eaglin, Paul B. 3/31/2015 Review Judgment in favor of Commissioner 0.1 Eaglin, Paul B. 3/31/2015 Assign Attorney writer to assess for Circuit Court appeal 0.2 Eaglin, Paul B. 5/13/2015 Review decisions and evidence to determine whether to appeal case 1 Eaglin, Paul B. 5/14/2015 Telephone call with Client re: Review District denial, options to further action 0.5 Eaglin, Paul B. 5/14/2015 Draft and file notice of appeal o/b/o Barbara Ressler 0.3 Eaglin, Paul B. 5/14/2015 Draft Initial Case opening packet, file (n/c for filing) 0.3 Eaglin, Paul B. 5/14/2015 Review docketed cause packet, time schedule order, calendar deadline to task pad 0.6 Eaglin, Paul B. 5/15/2015 Review USCA case number, update case number in file 0.2 Eaglin, Paul B. 5/15/2015 Draft and email transcript request (not attorney of record for DC) 0.2 Eaglin, Paul B. 5/15/2015 Draft & file Mediation questionnaire (n/c for filing) 0.2 Eaglin, Paul B. 5/19/2015 Review mediation order 0.1 Eaglin, Paul B. 8/21/2015 File streamlined request for extension of time for Plaintiff opening brief 0 Eaglin, Paul B. 8/24/2015 Review Streamlined request approved, updated task pad accordingly 0 Eaglin, Paul B. 8/28/2015 Prepare excerpt of record for USCA9thCirc re: Ressler 5 Eaglin, Paul B. 9/2/2015 Review file in preparation of brief writing 5.5 Eaglin, Paul B. 9/3/2015 Continue reviewing file, note taking, briefing outline 6 Eaglin, Paul B. 9/4/2015 Procedural drafting, legal research, brief drafting 4.4 Eaglin, Paul B. 9/7/2015 Continue brief drafting 5.5 Eaglin, Paul B. 9/8/2015 Continue brief drafting, review draft 2.2 Eaglin, Paul B. 9/9/2015 Continue drafting, review draft, make edits and finalize second draft 3 Eaglin, Paul B. 9/10/2015 Senior Attorney review draft brief, suggest edits 1.5 Olinsky, Howard D. 9/10/2015 Implement suggested edits, finalize 1.8 Eaglin, Paul B. 9/10/2015 File via CM/ECF Excerpts of record for review 0 Eaglin, Paul B. 9/10/2015 File via CM/ECF Opening brief for review 0 Eaglin, Paul B. 9/11/2015 Review Filed Clerk order: 7 brief and 4 excerpts 0.2 Eaglin, Paul B. 9/15/2015 Review filed Appellant paper copies received excerpts 0.1 Eaglin, Paul B. 9/15/2015 Review Received 7 paper copies brief 0.1 Eaglin, Paul B. 9/29/2015 Review ECF streamlined request extension to file Answer 0.1 Eaglin, Paul B. 9/30/2015 Review Appelle Streamlined request approved answering brief, update task pad 0.2 Eaglin, Paul B. 11/10/2015 Review Answering brief (44 pages) 1.5 Eaglin, Paul B. 11/10/2015 Assign Attorney writer to access/writer reply (assign myself) 0.2 Eaglin, Paul B. 11/17/2015 Review Received 7 paper copies answering brief 0.1 Eaglin, Paul B. 11/23/2015 Review briefs, drafting reply brief 4 Eaglin, Paul B. 11/23/2015 Senior Attorney review draft brief, suggest edits 0.3 Olinsky, Howard D. 11/24/2015 Implement edits, finalize and file (n/c for filing) reply brief 0.3 Eaglin, Paul B. 11/24/2015 Review Submitted (EFC) Reply for review 0.1 Eaglin, Paul B. 11/25/2015 Review Filed Clerk order re: reply brief 0.1 Eaglin, Paul B. 11/30/2015 Review Received 7 paper copies reply brief 0.1 Eaglin, Paul B. 12/10/2015 Review Notice of Attorney Withdrawal Michael A. Johns 0.1 Eaglin, Paul B. 12/11/2015 Review Notice of filer deficiency referring to docket 28 0.1 Eaglin, Paul B. 12/14/2015 Review Notice of Attorney Withdrawal Michael A. Johns and waiver of elec. servic 0.1 Eaglin, Paul B. 12/31/2015 Review Appelle notice of withdraw associate counsel 0 Eaglin, Paul B. 46.70 (Client = Ms. Barbara Ann Ressler) and (Type = Time) and ((Timekeeper = Eaglin, Paul B.) or (Timekeeper = Olinsky, Howard D.)) and ((Da...    Case 2:13-cv-02471-SPL Document 34-2 Filed 09/01/17 Page 5 of 7 Date  Subject Hours Timekeeper 12/31/2015 Review Terminated Michael A. Johns for Carolyn W. Colvin 0.1 Eaglin, Paul B. 46.70 (Client = Ms. Barbara Ann Ressler) and (Type = Time) and ((Timekeeper = Eaglin, Paul B.) or (Timekeeper = Olinsky, Howard D.)) and ((Da...    Case 2:13-cv-02471-SPL Document 34-2 Filed 09/01/17 Page 6 of 7 Ledger Ressler, Barbara Date  Subject Hours Timekeeper 11/28/2016 Review Case considered for Oral Arguments, review upcoming dates per order 0.2 Eaglin, Paul B. 0.20 (Client = Ms. Barbara Ann Ressler) and (Type = Time) and ((Timekeeper = Eaglin, Paul B.) or (Timekeeper = Olinsky, Howard D.)) and ((Da...    Case 2:13-cv-02471-SPL Document 34-2 Filed 09/01/17 Page 7 of 7 Ledger Ressler, Barbara Date  Subject Hours Timekeeper 1/4/2017 Review Notice of oral arguments 3/17/17, add to task pad 0.3 Eaglin, Paul B. 1/4/2017 Draft and file acknowledgment of hearing notice 0.2 Eaglin, Paul B. 1/6/2017 Make travel arrangements for Oral Arguments attendance 1 Eaglin, Paul B. 2/3/2017 Review Carolyn W. Colvin substituted by Nancy A. Berryhill 0.1 Eaglin, Paul B. 2/7/2017 Review Acknowledgment of hearing notice 0.1 Eaglin, Paul B. 3/14/2017 Review Appelle citation of supplemental authorities 0.1 Eaglin, Paul B. 3/15/2017 Oral Arguments preparation 4.5 Eaglin, Paul B. 3/16/2017 Travel NY to CA for Oral Arg (1/2 rate) 7 hr flight + airport time 2 hrs 4.5 Eaglin, Paul B. 3/17/2017 Final Oral Arguments preparation 1.5 Eaglin, Paul B. 3/17/2017 Oral Arguments-Appearance in person 1 Eaglin, Paul B. 3/18/2017 Travel CA to SYR after Oral Arg (1/2 rate) 6 hr flight + airport time 2 hrs 4 Eaglin, Paul B. 3/20/2017 Review Argued and submitted to KMW, RMG, EFS 0.1 Eaglin, Paul B. 3/20/2017 Rview Filed audio recording of oral arguments available on court website 0.1 Eaglin, Paul B. 4/18/2017 Review Memorandum and disposition reversed and remanded (6 pages) 0.2 Eaglin, Paul B. 5/2/2017 Review and file Bill of Costs 0.2 Eaglin, Paul B. 6/12/2017 Review mandate issues costs in the amount of $228.90 0.1 Olinsky, Howard D. 6/12/2017 Review Mandate reversing and remanding 0.1 Olinsky, Howard D. 6/13/2017 Review Order remanding for calculation of benefits 0.2 Olinsky, Howard D. 8/30/2017 Review Slips and Finalize EAJA Narrative 1 Olinsky, Howard D. 19.30 (Client = Ms. Barbara Ann Ressler) and (Type = Time) and ((Timekeeper = Eaglin, Paul B.) or (Timekeeper = Olinsky, Howard D.)) and ((Da...   

Exhibit C Paralegal Time

Exhibit C Case 2:13-cv-02471-SPL Document 34-3 Filed 09/01/17 Page 2 of 4 Ledger Ressler, Barbara Date  Subject Hours Timekeeper 10/31/2013 Files received, reviewed and processed from referral source for Attorney review 0.7 Persse, Shannon 11/5/2013 Telephone call with Client re: Debt conference call, explained process 0.4 Smith, Michael P. 11/5/2013 FDC prospect packet prepared for Client completion 0.6 Persse, Shannon 11/5/2013 Telephone call with Client re: Assistance with in forma pauperis application 0.5 Persse, Shannon 11/5/2013 FDC prospect packet sent to Client via USPS 0.2 Persse, Shannon 11/12/2013 Telephone call with Client re: Follow up on forms, review fee agreement terms 0.3 Persse, Shannon 11/15/2013 Telephone call with Client re: Follow up on fdc forms packet-mailed back 0.1 Persse, Shannon 11/20/2013 FDC Prospect packet returned via USPS, reviewed for completion 0.3 Smith, Michael P. 12/4/2013 Correspondence to Client re: Federal Court-Accept Letter-New FDC Filing 0.3 Smith, Michael P. 12/4/2013 File all initial case documents via cm/ecf 0 Smith, Michael P. 12/4/2013 Download, file, save and distribute ECF re: Complaint, Civil Cover Sheet 0 Persse, Shannon 12/4/2013 Download, file, save and distribute ECF re: Summons submitted 0 Persse, Shannon 12/4/2013 Download, file, save and distribute ECF re: Application for leave to proceed IFP 0 Persse, Shannon 12/4/2013 Download, file, save and distribute ECF re: Summons submitted 0 Persse, Shannon 12/4/2013 Dwld, file, save & distribute ECF re: Case assigned to Honorable G. Murray Snow 0 Persse, Shannon 12/4/2013 Download, file, save and distribute ECF re: Motion for admission Pro Hac Vice 0 Persse, Shannon 12/4/2013 Download, file, save and distribute ECF re: Notice to filer of deficiency 0 Persse, Shannon 12/5/2013 Download, file, save and distribute ECF re: Order granting IFP application 0 Persse, Shannon 12/5/2013 Download, file, save and distribute ECF re: Social Security scheduling order 0 Persse, Shannon 12/6/2013 Download, file, save and distribute ECF re: Summons issued 0 Persse, Shannon 12/9/2013 Download, file, save and distribute ECF re: Pro Hac Vice fee paid 0 Persse, Shannon 12/9/2013 Download, file, save and distribute ECF re: Order granting Pro Hac Vice 0 Persse, Shannon 12/10/2013 Federal Court-Service of Process-prepare service packets USAO, OGC, AG 0.6 Smith, Michael P. 12/16/2013 Download, file, and save electronic return receipts USAO, OGC, AG 0 Persse, Shannon 12/16/2013 Combine and file proof of service via CM/ECF 0.3 Persse, Shannon 12/16/2013 Download, file, save and distribute ECF re: Service executed 0 Persse, Shannon 12/19/2013 Dwld, file, save & distribute ECF re: Notice of appearance Michael A. Johns 0 Persse, Shannon 12/23/2013 Dwld, file, save & distribute ECF re: Notice of appearance Daniel Burrows 0 Persse, Shannon 1/16/2014 Received, processed and distributed Corr. from USAO re: Service acknowledgement 0 Smith, Michael P. 2/17/2014 Download, file, save and distribute ECF re: Answer 0 Persse, Shannon 2/18/2014 Download, file and save transcript in Ten (10 parts) 0.2 Persse, Shannon 3/28/2014 Combine, OCR and live bookmark federal court transcript (448 pages) 0.5 Persse, Shannon 4/16/2014 Download, file, save and distribute ECF re: Opening brief 0 Persse, Shannon 4/16/2014 Correspondence to Client re: FYI Enclosing Memo of Law Mailed to Client 0 Persse, Shannon 4/17/2014 Download, file, save and distribute ECF re: Attorney substitution 0 Persse, Shannon 5/12/2014 Telephone call with USAO re: First extension request-Consented 0.2 Smith, Michael P. 5/13/2014 Download, file, save and distribute ECF re: First extension of time request 0 Persse, Shannon 5/13/2014 Download, file, save and distribute ECF re: Order granting D. extension request 0 Persse, Shannon 6/30/2014 Download, file, save and distribute ECF re: Response brief by defendant 0 Persse, Shannon 7/1/2014 Download, file, save and distribute ECF re: Notice of reassignment Judge SPL 0 Persse, Shannon 7/15/2014 Download, file, save and distribute ECF re: Reply brief 0 Persse, Shannon 3/31/2015 Download, file, save & distribute ECF re: Order final decision on SSA confirmed 0 Persse, Shannon 3/31/2015 Download, file, save and distribute ECF re: Judgment 0 Persse, Shannon 12.20 (Client = Ms. Barbara Ann Ressler) and (Type = Time) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Persse, Shannon) or (Time...    Case 2:13-cv-02471-SPL Document 34-3 Filed 09/01/17 Page 3 of 4 Date  Subject Hours Timekeeper 5/8/2015 Download, file, save and distribute ECF re: Transcript request 0 Smith, Michael P. 5/14/2015 Download, file, save & distribute ECF re: Docketed cause and entered appearances 0 Smith, Michael P. 5/15/2015 Download, file, save and distribute ECF re: USCA case number 15-15979 0 Smith, Michael P. 5/15/2015 Download, file, save and distribute ECF re: Notice of Appearance PBE 0 Smith, Michael P. 5/15/2015 Download, file, save and distribute ECF re: Attorney HDO substituted PBE 0 Smith, Michael P. 5/15/2015 Download, file, save and distribute ECF re: Filed mediation questionnaire 0 Smith, Michael P. 5/19/2015 Download, file, save and distribute ECF re: Mediation order 0 Smith, Michael P. 8/21/2015 Download, file, save & distribute ECF re: Streamlined request re: P. Extenstion 0 Smith, Michael P. 8/24/2015 Download, file, save and distribute ECF re: Streamlined request approved 0 Smith, Michael P. 9/11/2015 Compiling Paper copies Brief and Excerpts for mailing 1 Smith, Michael P. 9/11/2015 Dwld, file, save & distribute ECF re: Submitted (ECF) opening brief for review 0 Smith, Michael P. 9/11/2015 Download, file, save and distribute ECF re: Filed clerk order 0 Smith, Michael P. 9/15/2015 Dwld, file, save & distribute ECF re: Filed Appellant copies excerpts received 0 Smith, Michael P. 9/15/2015 Download, file, save and distribute ECF re: Received 7 paper copies brief 0 Smith, Michael P. 9/29/2015 Download, file, save and distribute ECF re: Filed streamlined extension 0 Smith, Michael P. 9/30/2015 Download, file, save & distribute ECF re: Appelle Streamlined request approved 0 Smith, Michael P. 11/10/2015 Download, file, save and distribute ECF re: Submitted answering brief for review 0 Callahan, Michelle 11/17/2015 Dwld, file, save & distribute ECF re: Received 7 paper copies answering brief 0 Callahan, Michelle 11/24/2015 Download, file, save and distribute ECF re: Submitted (EFC) Reply for review 0 Callahan, Michelle 11/25/2015 Compiling Paper copies Reply Brief for mailing 0.5 Persse, Shannon 11/25/2015 Download, file, save and distribute ECF re: Filed Clerk order reply brief 0 Callahan, Michelle 11/30/2015 Download, file, save and distribute ECF re: Received 7 paper copies 0 Callahan, Michelle 12/10/2015 Download, file, save and distribute ECF re: Notice of attorney withdrawal 0 Callahan, Michelle 12/11/2015 Download, file, save and distribute ECF re: Notice of filer deficiency 0 Callahan, Michelle 12/14/2015 Download, file, save and distribute ECF re: Notice of attorney withdrawal 0 Callahan, Michelle 12/31/2015 Download, file, save and distribute ECF re: Appelle Notice of withdraw associate 0 Callahan, Michelle 12/31/2015 Download, file, save and distribute ECF re: Terminated Michael A. Johns 0 Callahan, Michelle 11/28/2016 Download, file, save and distribute ECF re: Case considered for Oral Arguments 0 Callahan, Michelle 1/4/2017 Download, file, save and distribute ECF re: Notice of oral arguments 0 Callahan, Michelle 1/4/2017 Download, file, save and distribute ECF re: Acknowledment of hearing 0 Callahan, Michelle 2/3/2017 Download, file, save and distribute ECF re: Carolyn W. Colvin substituted NAB 0 Callahan, Michelle 2/7/2017 Download, file, save & distribute ECF re: Filed Acknowledgmnet of hearing notice 0 Callahan, Michelle 3/14/2017 Download, file, save & distribute ECF re: Appelle citation of supplemental auth 0 Callahan, Michelle 3/20/2017 Download, file, save & distribute ECF re: Argued and submitted to KMW, RMG, EFS 0 Callahan, Michelle 3/20/2017 Download, file, save and distribute ECF re: Filed audio recording 0 Callahan, Michelle 4/18/2017 Download, file, save and distribute ECF re: Memorandum and disposition 0 Callahan, Michelle 4/25/2017 Costs Form Drafted and sent to PBE for Signature 0.3 Persse, Shannon 5/2/2017 Download, file, save and distribute ECF re: Filed Appellant bill of costs 0 Callahan, Michelle 6/12/2017 Download, file, save and distribute ECF re: Mandate issued 0 Callahan, Michelle 6/12/2017 Download, file, save and distribute ECF re: Mandate reversing and remanding 0 Callahan, Michelle 6/13/2017 Download, file, save and distribute ECF re: Order remanding COB 0 Callahan, Michelle 6/14/2017 Telephone call with Client re: Status update, explained process of remand COB 0.3 Smith, Michael P. 6/16/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 6/16/2017 Federal Court-Remand referral to AC department for monitoring C.O.B. 0.3 Callahan, Michelle 6/23/2017 Telephone call with US Attorney's Office 0.2 Callahan, Michelle 8/28/2017 EAJA Preparation 1.3 Persse, Shannon 8/29/2017 Continued EAJA Preparation 1.5 Persse, Shannon 12.20 (Client = Ms. Barbara Ann Ressler) and (Type = Time) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Persse, Shannon) or (Time...    Case 2:13-cv-02471-SPL Document 34-3 Filed 09/01/17 Page 4 of 4 Date  Subject Hours Timekeeper 9/1/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 1.4 Persse, Shannon 12.20 (Client = Ms. Barbara Ann Ressler) and (Type = Time) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Persse, Shannon) or (Time...   

Exhibit D Postage Expenses

Exhibit D Case 2:13-cv-02471-SPL Document 34-4 Filed 09/01/17 Page 2 of 2 Ledger Ressler, Barbara Date  Subject Amount Timekeeper 9/11/2015 Postage Expense Brief and Excerpt mailing to Court (7 copies, 4 copies) $66.60 Smith, Michael P. 11/25/2015 Postage Expense Reply brief to Court Clerk $5.90 Persse, Shannon $72.50 (Type = Cost) and ((Timekeeper = Persse, Shannon) or (Timekeeper = Smith, Michael P.))   

Exhibit E Travel Expenses

Exhibit E Case 2:13-cv-02471-SPL Document 34-5 Filed 09/01/17 Page 2 of 2 Ledger Ressler, Barbara Date  Subject Amount Timekeeper 3/16/2017 Hotel Expense for Oral Argument travel $167.67 Eaglin, Paul B. 3/16/2017 Flight New York to California (round trip) $758.60 Eaglin, Paul B. $926.27 (Type = Cost) and (Timekeeper = Eaglin, Paul B.)   

Exhibit F Affirmation and Waiver of Direct Payment of EAJA Fees

Case 2: 13-cv-02471-SPL Document 34-6 Filed 09/01/17 Page 1 of 2 Exhibit F Case 2: 13-cv-02471-SPL Document 34-6 Filed 09/01/17 Page 2 of 2 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA BARBARA ANN RESSLER, AFFIDAVIT AND WAIVER OF DIRECT PAYMENT OF EAJA FEES Plaintiff, Civil Action No.: CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant. STATE OF ARIZONA COUNTY OF MARICOPA Barbara Ann Ressler, being duly sworn, deposes and says as follows: I am the Plaintiff in the above-captioned matter. That I have retained Olinsky Law Group as my attorney for the above-captioned matter. At the time that this action was begun, my net worth was less than $ 2, 000, 000. 00. If my case is remanded by the Federal Court, either by stipulation or order, my attorney may file for attorney's fees pursuant to the Equal Access to Justice Act (EAJA). I understand that the EAJA fees are paid by the Federal Government and do not come from any back benefits owed to me by the Social Security Administration. I hereby agree to waive direct payment of the EAJA fees and assign said fees to be paid directly to my attorney. I understand that my attorney may still petition the Administration for legal fees for his or her work before the Administration that will be paid from my back benefits. Aul Barbara Ann Ressler Plaintiff Sworn to before me this 13 day of L Dew 2003 NOTARIZE otary Public LORY HAMILTON Notary Public-State of Arizona MARICOPA COUNTY My Commission expires August 15, 2017

Memorandum In Support

Case 2:13-cv-02471-SPL Document 34-7 Filed 09/01/17 Page 1 of 4 1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Barbra Ann Ressler 10 11 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 12 13 Barbra Ann Ressler, 14 Plaintiff, Civil No. 2-13-cv-02471-PHX-SPL 15 16 vs. 17 MEMORANDUM IN SUPPORT OF PLAINTIFF’S PETITION FOR 18 Commissioner of Social Security, COUNSEL FEES ALLOWANCE 19 UNDER EQUAL ACCESS TO 20 Defendant JUSTICE ACT, 28 U.S.C. § 2412 21 Memorandum In Support of Plaintiff’s Petition for Counsel Fees 22 Allowance Under Equal Access to Justice Act 23 24 1. This is a memorandum in support of a petition for an award of 25 Counsel Fees under the Equal Access to Justice Act 28 U.S.C.A. § 2412 "EAJA." 26 27 28 Page 9 Case 2:13-cv-02471-SPL Document 34-7 Filed 09/01/17 Page 2 of 4 1 2. An EAJA award is available to a "prevailing party" in a case against 2 the Federal Government, including Social Security cases, in the following 3 4 instances: 5 (a) When and if the plaintiff actually "prevails"; 6 (b) The Government’s position in litigation is "not substantially 7 8 justified"; 9 (c) Plaintiff is a party whose net assets are worth less than two 10 million dollars; and 11 (d) The case has concluded with a "final order" which is non-12 13 appealable, or will not be appealed. 14 3. Addressing these elements in reverse order, it is clear that the 15 Plaintiff has met the burden necessary to receive EAJA fees. 16 17 (a) Plaintiff’s net worth did not exceed $2,000,000.00 when this 18 action was filed. 19 (b) This Court ordered on June 12, 2017 that the above-entitled 20 21 case be remanded for calculation for an award of benefits, under the fourth 22 sentence of 42 U.S.C.A. § 405(g) (West) after the case was originally denied by 23 this Court, then appealed to the 9th Circuit Court of Appeals who reversed and 24 25 remanded back to this Court with instructions to remand for a calculation of 26 benefits. 27 28 Page 10 Case 2:13-cv-02471-SPL Document 34-7 Filed 09/01/17 Page 3 of 4 1 (c) Judgment was entered on June 12, 2017. The Judgment has 2 not been appealed. 3 4 (d) Plaintiff has prevailed because the District Court remanded 5 the case under sentence four of 42 U.S.C.A. § 405(g). Shalala v. Schaefer, 509 U.S. 6 292, 113 S. Ct. 2625, 125 L. Ed. 2d 239 (1993). 7 8 4. The commissioner was not substantially justified. As the U. S. 9 Supreme Court has held, "the required'not substantially justified’ allegation 10 11 imposes no proof burden on the fee applicant. It is, as its text conveys, nothing 12 more than an allegation or pleading requirement. The burden of establishing'that 13 the position of the United States was substantially justified’ … must be shouldered 14 15 by the Government." Scarborough v. Principi, 541 U.S. 401, 124 S. Ct. 1856, 158 16 L. Ed. 2d 674 (2004). While the fee applicant such as Plaintiff is required to 17 "show" three of the four elements—prevailing party status, financial eligibility, 18 19 and amount sought—Plaintiff need only "to allege" that the position of the 20 government is not substantially justified. Id. 21 WHEREFORE, because all four elements of an allowable application for 22 23 EAJA fees have been proven, petitioner requests that the Court issue an order: 24 25 1. Awarding an Equal Access to Justice Act Counsel Fee for 26 $19,314.43; and 27 2. Awarding Expenses in the amount of $998.77; and 28 Page 11 Case 2:13-cv-02471-SPL Document 34-7 Filed 09/01/17 Page 4 of 4 1 3. If the Plaintiff has no debt registered with the Department of Treasury 2 subject to offset that the fees be made payable to the attorney. 3 4 5 6 Executed this September 1, 2017 7 8 Respectfully submitted, 9/s/Howard D. Olinsky 10 Howard D. Olinsky, Esq. 11 Admitted Pro Hac Vice Attorney for Plaintiff 12 Email: fedct@windisability.com 13 To: John S. Leonardo 14 United States Attorney 15 Meghan Frei Berglind, Esq. 16 Attorney for Nancy A. Berryhill, Esq. 17 Assistant Regional Counsel, Region VIII 18 Social Security Administration Office of the General Counsel 19 1961 Stout Street, Suite 4169 20 Denver, CO 80294 21 Telephone: (303) 844-2544 Facsimile: (303) 844-0770 22 Email: meghan.berglind@ssa.gov 23 24 Attorneys for Defendant 25 26 27 28 Page 12

Certificate of Service

Case 2:13-cv-02471-SPL Document 34-8 Filed 09/01/17 Page 1 of 2 1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Barbra Ann Ressler 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Barbra Ann Ressler, 13 14 Plaintiff, Civil No. 2-13-cv-02471-PHX-SPL 15 vs. CERTIFICATE OF SERVICE 16 17 18 Commissioner of Social Security, 19 Defendant 20 21 Certificate of Service 22 23 I certify that I have electronically moved for EAJA fees with the Clerk of 24 the District Court using the CM/ECF system, which sent notification of such filing 25 to: 26 27 28 To: John S. Leonardo Page 15 Case 2:13-cv-02471-SPL Document 34-8 Filed 09/01/17 Page 2 of 2 1 United States Attorney 2 Meghan Frei Berglind, Esq. 3 Attorney for Nancy A. Berryhill, Esq. 4 Assistant Regional Counsel, Region VIII 5 Social Security Administration Office of the General Counsel 6 1961 Stout Street, Suite 4169 7 Denver, CO 80294 8 Telephone: (303) 844-2544 Facsimile: (303) 844-0770 9 Email: meghan.berglind@ssa.gov 10 11 Attorneys for Defendant 12 13 September 1, 2017 14/s/Howard D. Olinsky 15 Howard D. Olinsky, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 16

Statment pursuant to Local Rule 54.2 (d)(1)

Case 2:13-cv-02471-SPL Document 34-9 Filed 09/01/17 Page 1 of 2 1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Barbra Ann Ressler 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Barbra Ann Ressler, 13 14 Plaintiff, Civil No. 2-13-cv-02471-PHX-SPL 15 16 vs. CERTIFICATE OF LOCAL RULE 17 54.2 (D) (1) 18 Commissioner of Social Security, 19 Defendant 20 21 Certificate of Local Rule 54.2 (D) (1) 22 23 I certify that I have conferred with Counsel for Defendant via emails on 24 September 1, 2017. Plaintiff’s Motion for Attorney’s Fees Pursuant to the Equal 25 Access to Justice Act. Parties are unable to reach an agreement regarding this 26 27 motion, as the amount is beyond their settlement authority. 28 To: John S. Leonardo Page 13 Case 2:13-cv-02471-SPL Document 34-9 Filed 09/01/17 Page 2 of 2 1 United States Attorney 2 Meghan Frei Berglind, Esq. 3 Attorney for Nancy A. Berryhill, Esq. 4 Assistant Regional Counsel, Region VIII 5 Social Security Administration Office of the General Counsel 6 1961 Stout Street, Suite 4169 7 Denver, CO 80294 8 Telephone: (303) 844-2544 Facsimile: (303) 844-0770 9 Email: meghan.berglind@ssa.gov 10 11 Attorneys for Defendant 12 13 September 1, 2017 14 15/s/Howard D. Olinsky Howard D. Olinsky, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 14

RESPONSE to Motion re: [33] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Carolyn W Colvin.

Case 2:13-cv-02471-SPL Document 35 Filed 09/15/17 Page 1 of 11 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Meghan Frei Berglind 4 Special Assistant United States Attorney 5 1961 Stout Street, Suite 4169 Denver, Colorado 80294-4003 6 SBN CO 35574 7 Telephone: (303) 844-2544 Fax: (303) 844-0770 8 E-mail: meghan.berglind@ssa.gov 9 Attorneys for Defendant 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Barbara Ann Ressler,) No. CV 13-2471-SPL 13) 14 Plaintiff,)) DEFENDANT’S OPPOSITION TO 15 v.) PLAINTIFF’S MOTION FOR 16) ATTORNEY FEES PURSUANT Nancy A. Berryhill,) TO THE EQUAL ACCESS TO 17 1 Acting Commissioner of Social Security,) JUSTICE ACT, 28 U.S.C. § 2412 18) Defendant.) 19 __________________________________) 20 INTRODUCTION 21 After this Court affirmed the Commissioner’s denial of Plaintiff’s application for 22 23 Social Security disability benefits (Doc. 23), Plaintiff sought review by the Ninth Circuit 24 25 26 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. 27 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the defendant in 28 this suit. No further action needs to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Case 2:13-cv-02471-SPL Document 35 Filed 09/15/17 Page 2 of 11 1 Court of Appeals, which in a decision dated April 18, 2017, affirmed in part, reversed in 2 part, and remanded for payment of benefits (see Ressler v. Berryhill, No. 15-15979, 3 687 F. App’x 560 (9th Cir. 2017) (unpublished)). Plaintiff now seeks an award of 4 5 attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), in the 6 amount of $19,314.43, as well as expenses in the amount of $998.77 (see Docs. 33 & 34). 7 The Commissioner respectfully requests that the Court deny Plaintiff’s EAJA application. 8 Plaintiff’s application for attorney fees under the EAJA was not timely. Giving 9 10 Plaintiff the full amount of time contemplated by the EAJA—the 90 day certiorari period 11 plus the statutory 30 days—Plaintiff’s motion for attorney fees should have been filed no 12 later than August 16, 2017. Instead, Plaintiff filed the motion more than two weeks later, 13 14 on September 1, 2017, and has made no showing to excuse that neglect. In addition, the 15 Commissioner’s position in this litigation was substantially justified. The Ninth Circuit 16 reversed on grounds that were arguably not raised in this Court. In addition, Plaintiff’s 17 18 success with the Court of Appeals does not negate the fact that this Court previously 19 agreed that the ALJ’s decision was supported by substantial evidence and free of legal 20 error, and the Commissioner reasonably defended this case given the record and the case 21 law of this Circuit. 22 23 ARGUMENT 24 I. Plaintiff Is Not Entitled to Recover Attorney Fees Under the EAJA Because 25 Her Application Was Not Timely. 26 The EAJA requires that a prevailing party file a motion for attorney fees within 27 30 days of final judgment in her case. 28 U.S.C. § 2412(d)(1)(B). For purposes of the 28 2 Case 2:13-cv-02471-SPL Document 35 Filed 09/15/17 Page 3 of 11 1 EAJA, a judgment is a "final judgment" when it is "final and not appealable." Id. at 2 § 2412(d)(2)(G); see also Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991) ("The 30–day 3 EAJA clock begins to run after the time to appeal that "final judgment" has expired."). In 4 5 a matter decided in the Court of Appeals, the Commissioner has 90 days to determine 6 whether or not to file a petition for certiorari. See H.R. Rep. No. 120, 18 N. 26, reprinted 7 in 1985 U.S.C.C.A.N. 132, 146 n. 26 ("[I]f the government does not appeal an adverse 8 decision, the thirty-day period would begin to run upon expiration of the time for filing 9 10 notice of appeal or a petition for certiorari."); see also 28 U.S.C. §§ 1254, 1257, and 11 2101(c) (petitions for writs of certiorari in civil cases to be taken to the Supreme Court 12 from courts of appeals or from state courts must be filed within 90 days after entry of 13 14 judgment.). Thus, Plaintiff had 120 days from judgment in which to file her motion for 15 attorney fees under the EAJA. See Arulampalam v. Gonzales, 399 F.3d 1087, 1088 (9th 16 Cir. 2005) ("[T]he 30-day period during which an applicant can file for EAJA fees begins 17 18 to run only after the 90-day time for filing a petition for writ of certiorari with the 19 Supreme Court has expired," (quoting Al-Harbi v. INS, 284 F.3d 1080, 1083-84 20 (9th Cir.2002))). 21 The Ninth Circuit Advisory Committee’s Note to Rule 41-1 instructs counsel to 22 23 "be mindful that the judgment is entered on the day of the Court’s decision and not when 24 the mandate—i.e., a certified copy of the judgment is issued." See also Zheng 25 v. Ashcroft, 383 F.3d 919, 921 (9th Cir. 2004) (stating that "EAJA’s 120-day clock 26 27 begins to tick when our judgment or order is issued" and specifically rejecting an 28 argument that the time period begins with issuance of the court’s mandate). Thus, the 3 Case 2:13-cv-02471-SPL Document 35 Filed 09/15/17 Page 4 of 11 1 date the judgment was entered in Plaintiff’s case was the date the Ninth Circuit issued its 2 decision in this case, i.e., on April 18, 2017. That judgment became final for purposes of 3 the EAJA 90 days later, when the Commissioner’s certiorari period expired. Plaintiff 4 5 then had 30 days from that date—or until August 16, 2017—to file her motion for 6 attorney fees under the EAJA. 7 But Plaintiff did not file her EAJA motion by that date. She instead waited over 8 two weeks—until September 1, 2017—to file her motion. Because that motion was not 9 10 timely, Plaintiff’s request for attorney fees under the EAJA should be denied. 11 In her motion, Plaintiff does not acknowledge that her EAJA motion is late and 12 makes no argument to support equitable tolling in this case. Instead, she seems to 13 14 mistakenly believe that the judgment date in this case is June 12, 2017, the date the Court 15 of Appeals issued its mandate and this Court issued a judgment formally remanded 16 Plaintiff’s case back to the agency. See Memorandum in Support of Plaintiff’s Petition 17 18 for Counsel Fees Allowance Under Equal Access to Justice Act, Doc. 34-7, ¶3(b). But 19 Plaintiff’s attorneys’ apparent error does not excuse their late filing for attorney fees 20 under the EAJA. Cf. Sanchez v. Astrue, 273 F. App’x 686, 687 (9th Cir. 2008) 21 (unpublished) (holding that failure to periodically check the docket to see if judgment had 22 23 been entered was nor excusable neglect); see also Cal. Pub. Employees’ Retirement Sys. 24 v. ANZ Securities, Inc., 137 S. Ct. 2042, 2050 (2017) (stating that equitable tolling 25 "permits a court to pause a statutory time limit'when a litigant has pursued his rights 26 27 diligently but some extraordinary circumstance prevents him from bringing a timely 28 action.’" (emphasis added) (quoting Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1231 4 Case 2:13-cv-02471-SPL Document 35 Filed 09/15/17 Page 5 of 11 1 (2014))). While Plaintiff’s attorneys are located out of this Circuit, they have represented 2 many claimants in the Ninth Circuit, and at least one of Plaintiff’s attorneys, Mr. Eaglin, 3 previously practiced from a Ninth Circuit jurisdiction (Alaska). Thus, there is no excuse 4 5 for Plaintiff’s failure to file a timely EAJA petition, and this Court should deny the 6 current motion. 7 II. In the Alternative, the Court Should Deny Plaintiff’s Motion for Attorney 8 Fees Under the EAJA Because the Commissioner’s Position Was Substantially Justified. 9 10 The EAJA is not an automatic fee-shifting statute. When enacting the EAJA, 11 Congress considered but rejected a mandatory automatic award of fees "because it did 12 not account for the reasonable and legitimate exercise of governmental functions and thus 13 14 might have a chilling effect on proper government efforts." See H.R. No. 96-1418, at 15 13-14. Instead, Congress adopted the "substantial justification" standard, stating it 16 "represents an acceptable middle ground" between an automatic award of fees and an 17 "unnecessarily restrictive" standard, i.e., one allowing attorney fees only where the 18 19 government’s action was "arbitrary, frivolous, unreasonable, or groundless." See id. at 20 14-15. 21 In drafting the EAJA, Congress intended to eliminate the financial disincentive 22 23 that might deter the average person from "vindicating their rights" in suits against the 24 government. See Comm’r, I.N.S. v. Jean, 496 U.S. 154, 164, 165 n.14 (1990); H.R. No. 25 96-1418, at 9. The bill rests on the premise that a party litigating an issue against the 26 27 government is not only representing his own interest but is also formulating public 28 policy, and it is unfair to ask a private individual to bear the cost where he is serving a 5 Case 2:13-cv-02471-SPL Document 35 Filed 09/15/17 Page 6 of 11 1 public purpose. See H.R. No. 96-1418, at 10-11. However, "[w]hile the EAJA redresses 2 governmental abuse, it was never intended to chill the government’s right to litigate or to 3 subject the public fisc to added risk of loss when the government chooses to litigate 4 5 reasonably substantiated positions, whether or not the position later turns out to be 6 wrong." Roanoke River Basin Ass’n v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993); see 7 also H.R. No. 99-120, at 10 (1985) (recognizing and reaffirming "the importance of 8 federal enforcement of federal law," and stating that the EAJA was not intended to "chill 9 10 public officials charged with enforcing the law from vigorously discharging their 11 responsibilities"). 12 The government’s position is substantially justified—and, thus, an award of fees 13 14 under the EAJA is inappropriate—where its conduct had "a reasonable basis both in law 15 and fact." Pierce v. Underwood, 487 U.S. 552, 565 (1988); Gutierrez v. Barnhart, 16 274 F.3d 1255, 1257 (9th Cir. 2001); see also H.R. No. 96-1418, at 11 ("The test of 17 18 whether or not a government action is substantially justified is essentially one of 19 reasonableness."). The burden of proof lies with the government. See H.R. No. 96-1418, 20 at 10-11. Nonetheless, the substantial justification standard "should not be read to raise a 21 presumption that the government’s position was not substantially justified, simply 22 23 because it lost the case." See id.; see also Kali v. Bowen, 854 F.2d 329, 334 (9th Cir. 24 1988) (the fact that the government did not prevail in court "does not raise a presumption 25 that its position was not substantially justified"). Furthermore, "[s]ubstantially justified 26 27 does not mean'justified to a high degree.’" Gonzales v. Free Speech Coal., 408 F.3d 28 613, 618 (9th Cir. 2005) (quotation omitted). "Nor, in fact, does the standard require the 6 Case 2:13-cv-02471-SPL Document 35 Filed 09/15/17 Page 7 of 11 1 government to establish that its decision to litigate was based on a substantial probability 2 of prevailing." See H.R. No. 96-1418, at 11. As Congress explained, the EAJA’s 3 substantial justification standard is a "safety valve" that "helps to ensure that the 4 5 government is not deterred from advancing in good faith the novel but credible 6 extensions and interpretations of the law that often underlie vigorous enforcement 7 efforts." Id. 8 The Commissioner respectfully requests that her position in this case was 9 10 substantially justified. The Court should, therefore, deny Plaintiff’s motion for attorney 11 fees and expenses under the EAJA because reasonable jurists could—and, in fact, did— 12 disagree as to the outcome of this case. 13 14 On appeal before this Court, Plaintiff argued that the ALJ erred in 1) applying the 15 Grids found at 20 C.F.R. part 4, subpart P, appendix 2, and 2) evaluating her residual 16 functional capacity with assessing maximum capacity and making a function-by-function 17 18 assessment (Doc. 16 at 15-21). The Court rejected Plaintiff’s arguments and affirmed the 19 Commissioner’s denial of Plaintiff’s disability application (see generally Doc. 23). 20 Following the Court’s affirmance, Plaintiff appealed to the Ninth Circuit (Doc. 25). The 21 Ninth Circuit interpreted Plaintiff’s second argument to also implicate the ALJ’s analysis 22 23 of the medical opinion evidence and the believability of Plaintiff’s subjective 24 statements—although Plaintiff had not specifically argued either issue—and ordered 25 remand for payment of benefits. See Ressler, 687 F. App’x at 562-63. 26 27 The Commissioner submits that she was substantially justified in defending this 28 case because she reasonably believed that the issues on which Plaintiff was ultimately 7 Case 2:13-cv-02471-SPL Document 35 Filed 09/15/17 Page 8 of 11 1 successful had not been raised before this Court or the court of appeals (see Doc. 20 2 at 8-9). The doctrine of waiver is well accepted in Social Security cases, and the 3 Commissioner reasonably relied on that doctrine in defending this case. See Warre ex 4 5 rel. E.T. IV v. Barnhart, 439 F.3d 1001, 1007 (9th Cir. 2006). While the Ninth Circuit 6 ultimately decided that these issues were sufficiently implicated by Plaintiff’s arguments 7 so as to decide this case on that basis, this Court obviously disagreed and did not directly 8 address either issue in its decision (see generally Doc. 23). This demonstrates that 9 10 reasonable people could—and, in fact, did—believe that the Commissioner’s position 11 was correct. See Putz v. Astrue, 454 F. App’x 632 (9th Cir. 2011) (unpublished) 12 ("Although a majority of the prior panel reversed the [ALJ] disability ruling and 13 14 remanded for payment of benefits, the dispute was one in which reasonable minds did 15 differ: the ALJ, the district judge, and a dissenting circuit judge were all convinced that 16 Putz was not disabled." (citation omitted)).2 17 18 The Commissioner addressed the issues specifically raised by Plaintiff (see 19 generally Doc. 16), and her arguments—that no function-by-function analysis was 20 required, that the ALJ described Plaintiff’s maximum capacity based on the entirety of 21 the record, and that the Grids were appropriately applied when the RFC limitations did 22 23 not significantly erode the occupational base (see generally Doc. 20)—had a reasonable 24 25 2 The district court’s affirmance is a factor that the Court may consider in 26 evaluating whether the Commissioner’s position was substantially justified. See Taylor v. Astrue, No. CV-07-0148-PHX-FJM, 2010 WL 537726, at *2 (D. Ariz. Feb. 11, 2010) 27 (unpublished) ("We held that the ALJ gave specific, legitimate reasons for rejecting Dr. Neufeld’s report. The Ninth Circuit [disagreed].... It is clear that reasonable minds 28 can differ as to the significance of these treatment records." (internal citation omitted)). 8 Case 2:13-cv-02471-SPL Document 35 Filed 09/15/17 Page 9 of 11 1 basis in law and fact. See Underwood, 487 U.S. at 566 n.2. Moreover, the ALJ’s 2 findings on the issues on which the Court of Appeals ultimately remanded were also 3 substantially justified. See 28 U.S.C. § 2412(d)(2)(D) (stating that the "position of the 4 5 United States" encompasses both "the position taken by the United States in the civil 6 action, [and] the action or failure to act by the agency upon which the civil action is 7 based"). For example, while the Ninth Circuit found that the ALJ insufficiently 8 explained the weight he gave to the medical opinion, see Ressler, 687 F. App’x at 562, 9 10 those opinions can reasonably be read as consistent with the ALJ’s RFC, as the 11 Commissioner pointed out to this Court (see Doc. 20 at 8-9 & n.5). See Vincent ex rel. 12 Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) ("The [Commissioner], 13 14 however, need not discuss all evidence presented to [him]. Rather, [he] must explain 15 why significant probative evidence has been rejected." (citation and internal quotation 16 marks omitted)). 17 18 And although the Ninth Circuit ultimately did not find them persuasive, the ALJ 19 also provided good reasons for finding Plaintiff’s symptom testimony (and her mother’s 20 third-party statement) not entirely believable (see Doc. 8), noting that she reported 21 improvement with treatment and had activities that were inconsistent with her claim that 22 23 she only meditated, paced, and argued with her voices in her head. While these activities 24 may not have demonstrated a capacity for full-time work, a reasonable adjudicator could 25 find that they were properly considered for the alternate purpose of undermining her 26 27 claims of a totally debilitating impairment. See Molina v. Astrue., 674 F.3d 1104, 28 1112-13 (9th Cir. 2012) ("While a claimant need not vegetate in a dark room in order to 9 Case 2:13-cv-02471-SPL Document 35 Filed 09/15/17 Page 10 of 11 1 be eligible for benefits, the ALJ may discredit a claimant’s testimony when the claimant 2 reports participation in everyday activities indicating capacities that are transferable to a 3 work setting.... Even where those activities suggest some difficulty in functioning, they 4 5 may be grounds for discrediting the claimant’s testimony to the extent that they 6 contradict claims of a totally debilitating impairment." (citations and internal punctuation 7 omitted)). 8 Here, the Commissioner advanced arguments in good faith and grounded in 9 10 reasonable interpretation of Ninth Circuit law in defending this action. Further, a 11 reasonable jurist could have found that the ALJ’s RFC finding was supported by 12 substantial evidence and free from harmful legal error. Because reasonable people 13 14 could—and, in fact, did—differ as to the outcome of this case, the Court should find that 15 the Commissioner’s position was substantially justified and deny Plaintiff’s request for 16 attorney fees under the AJA. 17 18 Respectfully submitted this 15th day of September, 2017. 19 Elizabeth A. Strange 20 Acting United States Attorney 21 District of Arizona 22 s/Meghan Frei Berglind 23 Meghan Frei Berglind Special Assistant United States Attorney 24 25 26 27 28 10 Case 2:13-cv-02471-SPL Document 35 Filed 09/15/17 Page 11 of 11 1 CERTIFICATE OF SERVICE 2 I hereby certify that on September 15, 2017, I electronically transmitted the 3 attached document to the Clerk’s Office using the CM/ECF System for filing and 4 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 5 Howard D. Olinsky, Esq. 6 Attorney for Plaintiff 7 8 s/Meghan Frei Berglind 9 Special Assistant United States Attorney 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

REPLY to Response to Motion re: [33] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Barbara Ann Ressler.

Case 2:13-cv-02471-SPL Document 36 Filed 09/22/17 Page 1 of 8 1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Barbra Ann Ressler 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Barbra Ann Ressler, 13 14 Plaintiff, Civil No. 2-13-cv-02471-PHX-SPL 15 16 vs. PLAINTIFF’S REPLY TO 17 DEFENDANT’S RESPONSE TO 18 Commissioner of Social Security, MOTION FOR ATTORNEY FEES 19 Defendant 20 21 ARGUMENT 22 Defendant asks this Court to deny Plaintiff’s EAJA application on two 23 grounds; first that Plaintiff’s application for fees under the EAJA was not timely, 24 25 and second, that Defendant’s position in this litigation was substantially justified. 26 For the reasons set forth below, Defendant’s objections fail, and it is respectfully 27 28 Page 1 Case 2:13-cv-02471-SPL Document 36 Filed 09/22/17 Page 2 of 8 1 requested that this Court enter judgment awarding fees in the full amount 2 requested. 3 4 1. Plaintiff’s application for Fees was timely. 5 Plaintiff agrees that EAJA requires a prevailing party to file a Motion for 6 7 Attorney Fees within 30 days of final judgment in her case. 28 U.S.C. § 8 2412(d)(1)(B). However, Plaintiff asserts that her petition is timely, as this Court 9 entered final judgment in this matter on June 12, 2017. Dkt. No. 32. In that 10 11 Order, this Court terminated the litigation’s pendency through the Courts, and 12 officially Remanded the case to the Administrative Agency which gave rise to this 13 appeal. The Order states, "to the extent that a judgment is required for this case to 14 15 be remanded this Order shall serve as the judgment." Dkt. No. 32. 16 Plaintiff does not assert, as Defendant suggests, that Plaintiff’s time period 17 to file under the EAJA begins with the issuance of the Circuit Court’s mandate. 18 19 Dkt. No. 35. Rather, Plaintiff’s action was not Remanded to the Agency for 20 further proceeding until June 12, 2017. Dkt. No. 32. Therefore, Plaintiff believes 21 a final Judgment was entered in this matter on June 12, 2017, which triggered 22 Plaintiff’s deadline to appeal. EAJA requires that the party seeking an award 23 24 "shall, within thirty days of final judgment in the action," submit an application to 25 the Court. 28 U.S.C. § 2412(d)(1)(B). Therefore, to be considered timely, an 26 EAJA petition in Social Security cases must be filed within ninety days of the 27 28 district court's entry of judgment. Hoa Hong Van v. Barnhart, 483 F.3d 600, 604 Page 2 Case 2:13-cv-02471-SPL Document 36 Filed 09/22/17 Page 3 of 8 1 (9th Cir.2007). This Court’s judgment became final and unappealable 60 days 2 later, and Plaintiff then had 30 days from that date, or until September 10, 2017, to 3 4 file her petition for fees. 5 6 2. The Commissioner’s position was not substantially justified. 7 8 In order to find substantial justification to deny an award of attorney’s fees, the 9 Court must find that Defendant’s conduct was reasonable in both law and fact. Sampson 10 11 v. Chater, 103 F.3d 918, 921 (9th Cir. 1996); See also Pierce v. Underwood, 487 U.S. 12 552, 565 (1988); Gutierrez v. Barnhart, 274 F.3d 1255, 1257 (9th Cir. 2001). The burden 13 of proof is on the Commissioner. Sampson, 103 F.3d at 921. The Court’s decision is 14 15 based on both Defendant’s litigation position and the underlying ALJ decision. Id. 16 Substantial justification will not be found where the government defends "on appeal... 17'basic fundamental’ procedural mistakes made by the ALJ." Lewis v. Barnhart, 281 F.3d 18 19 1091, 1085 (9th Cir. 2002) (quoting Corbin v. Apfel, 149 F.3d 1051, 1053 (9th Cir. 20 1998)). 21 Defendant incorrectly urges this Court to find that her position was 22 23 substantially justified solely upon her position in the litigation before this Court. 24 The Ninth Circuit has found that it is error for the District Court to fail to address 25 "the reasonableness of the underlying conduct and bas[e] its denial of fees solely 26 27 on the government's litigation position." Gutierrez, 274 F.3d at 1259. Rather, this 28 Court must assess the underlying conduct of the Agency to determine whether Page 3 Case 2:13-cv-02471-SPL Document 36 Filed 09/22/17 Page 4 of 8 1 Defendant was substantially justified on the whole. Id. Defendant’s argument 2 essentially boils down to the conclusion that the Commissioner’s position was 3 4 substantially justified because she prevailed in District Court despite the Ninth 5 Circuit Court’s conclusion that her position was erroneous, and she still believes 6 that the position she advanced was reasonable. However, consistent with the 7 8 determination by the Ninth Circuit Court in adjudicating this appeal, Defendant’s 9 position had no reasonable basis in fact or law. 10 Here, as in Gutierrez, the underlying conduct of the Agency consisted of a 11 failure to follow SSA regulations. In the matter at hand, the Ninth Circuit Court 12 13 found that the ALJ committed harmful legal error and applied the incorrect legal 14 standard to reject medical evidence. Dkt. No. 30-1 at pg. 3. The ALJ failed to 15 follow the regulations by improperly weighing the evidence, resulting in failure to 16 17 perform a function-by-function analysis and failure to obtain vocational expert 18 testimony. This failure to follow the regulations and basic procedure renders the 19 ALJ determination and underlying Agency conduct without a reasonable basis in 20 21 law, and the Commissioner’s litigation position is therefore not substantially 22 justified. Gutierrez, 274 F.3d at 1259. Lewis, 281 F.3d at 1085; Corbin, 149 F.3d 23 at 1053. 24 25 Defendant’s unwavering belief that the ALJ set forth good reasons for 26 rejecting subjective testimony does not make such reasons objectively sufficient 27 under the regulations and prevailing case law. Defendant cites Molina v. Astrue., 28 Page 4 Case 2:13-cv-02471-SPL Document 36 Filed 09/22/17 Page 5 of 8 1 674 F.3d 1104, 1112-13 (9th Cir. 2012), arguing that Plaintiff’s daily activities 2 were properly considered for the purpose of undermining her claims of a totally 3 4 disabling impairment. Dkt. No. 35 at 9-10. Yet this premise was previously 5 rejected in by Ninth Circuit, as explained in the Circuit Court’s judgment here. 6 Dkt. No. 30-1 at pg. 4 ("This Court has explained that'impairments that 7 8 would unquestionably preclude work and all the pressures of a workplace 9 environment will often be consistent with doing more than merely resting in bed 10 all day.’") (citing Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014)). 11 Therefore, unless daily activities indicate an ability to work, reliance upon such 12 13 minimal activities to discredit and Plaintiff’s testimony is legally insufficient, 14 rendering the Commissioner’s position on this issue without a reasonable basis in 15 law. 16 17 In the Ninth Circuit, a decision finding that the ALJ’s determination was 18 not supported by substantial evidence is a strong indication that the underlying 19 position is not substantially justified. Meier v. Colvin, 727 F.3d 867, 872 (9th Cir. 20 21 2013). The ALJ’s decision was unreasonable in both fact and law, and 22 Defendant’s stance during litigation was also unreasonable in both fact and law, 23 resulting in the Ninth Circuit Court’s decision to remand for calculation of 24 25 benefits, finding Plaintiff’s disability was established upon the evidence of record. 26 Therefore, both the ALJ’s decision and Defendant’s litigation position are 27 unreasonable in law. 28 Page 5 Case 2:13-cv-02471-SPL Document 36 Filed 09/22/17 Page 6 of 8 1 CONCLUSION 2 For the foregoing reasons, it is respectfully requested that the Court grant 3 4 Plaintiff’s motion for attorney’s fees. 5 6 7 Respectfully submitted, 8/s/Howard D. Olinsky 9 Howard D. Olinsky, Esq. Admitted Pro Hac Vice 10 Attorney for Plaintiff 11 Email: fedct@windisability.com 12 To: John S. Leonardo, Esq. 13 United States Attorney 14 Meghan Frei Berglind, Esq. 15 Attorney for Nancy A. Berryhill, Esq. Assistant Regional Counsel, Region VIII 16 Social Security Administration 17 Office of the General Counsel 18 1961 Stout Street, Suite 4169 Denver, CO 80294 19 Telephone: (303) 844-2544 20 Facsimile: (303) 844-0770 21 Email: meghan.berglind@ssa.gov 22 Attorneys for Defendant 23 24 25 26 27 28 Page 6 Case 2:13-cv-02471-SPL Document 36 Filed 09/22/17 Page 7 of 8 1 2 3 4 Howard D. Olinsky Admitted Pro Hac Vice 5 Olinsky Law Group 6 One Park Place 300 South State Street 7 Suite 420 8 Syracuse, NY 13202 NY State Bar #:2044865 9 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 10 Email: fedct@windisability.com 11 Attorney for Plaintiff Barbra Ann Ressler 12 13 IN THE UNITED STATES DISTRICT COURT 14 DISTRICT OF ARIZONA 15 Barbra Ann Ressler, 16 17 Plaintiff, Civil No. 2-13-cv-02471-PHX-SPL 18 vs. CERTIFICATE OF SERVICE 19 20 Commissioner of Social Security, 21 22 Defendant 23 Certificate of Service 24 25 I certify that I have electronically filed Plaintiff’s reply to Defendant’s 26 27 response in opposition to Plaintiff’s Motion for fees under the EAJA with the 28 Page 7 Case 2:13-cv-02471-SPL Document 36 Filed 09/22/17 Page 8 of 8 1 Clerk of the District Court using the CM/ECF system, which sent notification of 2 such filing to: 3 4 5 To: John S. Leonardo 6 United States Attorney 7 Meghan Frei Berglind, Esq. 8 Attorney for Nancy A. Berryhill, Esq. Assistant Regional Counsel, Region VIII 9 Social Security Administration 10 Office of the General Counsel 11 1961 Stout Street, Suite 4169 Denver, CO 80294 12 Telephone: (303) 844-2544 13 Facsimile: (303) 844-0770 14 Email: meghan.berglind@ssa.gov 15 Attorneys for Defendant 16 17 September 22, 2017 18 19/s/Howard D. Olinsky Howard D. Olinsky, Esq. 20 21 22 23 24 25 26 27 28 Page 8

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Description
1
12/04/2013
COMPLAINT filed by Barbara Ann Ressler. (submitted by Howard Olinsky)
1
Exhibit
2
Civil Cover Sheet)(REK
2 Attachments
2
12/04/2013
SUMMONS Submitted by Barbara Ann Ressler. (submitted by Howard Olinsky)
1
Summons
2
Summons)(REK
2 Attachments
3
12/04/2013
APPLICATION for Leave to Proceed In Forma Pauperis by Barbara Ann Ressler. (submitted by Howard Olinsky)
4
12/04/2013
This case has been assigned to the Honorable G. Murray Snow. All future pleadings or documents should bear the correct case number: CV-13-02471-PHX-GMS. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached.
5
12/04/2013
NOTICE TO FILER OF DEFICIENCY re 1 Complaint filed by Barbara Ann Ressler. Description of deficiency: Document not in compliance with Local Rule 7.1(c): Document should be in PDF format and text searchable.
6
12/04/2013
First MOTION for Admission Pro Hac Vice as to attorney Howard D. Olinsky by Barbara Ann Ressler.
1
Certificate of Good Standing
2
Letter to Clerk
2 Attachments
7
12/05/2013
SOCIETY SECURITY SCHEDULING ORDER. Signed by Judge G Murray Snow on 12/5/2013.
8
12/05/2013
ORDER granting 3 Plaintiff's Motion for Leave to Proceed In Forma Pauperis, without prepayment of costs or fees or the necessity of giving security therefore. Plaintiff shall be responsible for service by waiver or of the summons and complaint. Signed by Judge G Murray Snow on 12/5/2013.
9
12/06/2013
Summons Issued as to Carolyn W Colvin (via Office of Regional Counsel), U.S. Attorney and U.S. Attorney General
1
Summons
2
Summons)(REK
2 Attachments
12/09/2013
PRO HAC VICE FEE PAID. $ 50, receipt number PHX140826 as to Howard D Olinsky. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
10
12/09/2013
ORDER pursuant to General Order 09-08 granting 6 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
11
12/16/2013
SERVICE EXECUTED filed by Barbara Ann Ressler: Proof of Service re Summons and Complaint upon Commissioner of Social Security, United States Attorney, and United States Attorney General on 12/16/2013.
12
12/18/2013
*NOTICE of Appearance by Michael A Johns on behalf of Carolyn W Colvin. *Modified to correct event type on 12/19/2013
13
12/23/2013
NOTICE OF ATTORNEY APPEARANCE: Daniel Burrows appearing for Carolyn W Colvin.
14
02/14/2014
ANSWER to 1 Complaint by Carolyn W Colvin.
15
02/18/2014
NOTICE of Filing Certified Copy of Administrative Transcript re: 14 Answer to Complaint filed by Carolyn W Colvin.
1
Certification Page
2
Court Transcript Index
3
Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable
4
Payment Documents and Decisions
5
Jurisdictional Documents and Notices
6
Non Disability Related Development
7
Disability Related Development
8
Medical Records Part 1
9
Medical Records Part 2
9 Attachments
16
04/15/2014
*OPENING BRIEF by Barbara Ann Ressler. *Modified on 4/16/2014; document does not contain the case number*
17
04/17/2014
NOTICE OF ATTORNEY SUBSTITUTION: Meghan Berglind appearing for Carolyn W Colvin. Attorney Daniel E Burrows terminated.
18
05/13/2014
First MOTION for Extension of Time to File Response Brief by Carolyn W Colvin.
1
Text of Proposed Order
1 Attachment
19
05/13/2014
ORDER granting 18 Unopposed Motion for Extension of Time. Defendant is granted up to and including June 30, 2014, to respond to Plaintiff's Opening Brief. Signed by Judge G Murray Snow on 5/13/2014.
20
06/30/2014
RESPONSE BRIEF by Carolyn W Colvin.
21
07/01/2014
Minute Order: NOTICE OF REASSIGNMENT. This matter is reassigned to Judge Steven P Logan for all further proceedings. All documents filed in this action should bear the initials SPL as part of the complete case number (see revised case number above). All pending deadlines and hearings are AFFIRMED unless reset by separate order. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
22
07/14/2014
*REPLY BRIEF re: 20 Brief - Response by Plaintiff Barbara Ann Ressler. *Modified to correct event on 7/15/2014
23
03/31/2015
ORDER, the final decision of the Commissioner of Social Security is affirmed; the Clerk shall enter judgment accordingly and shall terminate this case. Signed by Judge Steven P Logan on 3/30/15.
24
03/31/2015
CLERK'S JUDGMENT - pursuant to the Court's Order filed March 31, 2015, the Decision of the Commissioner of Social Security is affirmed and this action is hereby terminated.
25
05/14/2015
*NOTICE OF APPEAL to 9th Circuit Court of Appeals re: 24 Clerks Judgment, 23 Order by Barbara Ann Ressler.
1
Representation Statement
2
Judgment at Dkt 24
3
Order at Dkt 23) Modified on 5/15/2015 (REW
3 Attachments
26
05/15/2015
USCA Case Number re: 25 Notice of Appeal. Case number 15-15979, Ninth Circuit Court of Appeals. (LAD) (Distributed by the Ninth Circuit)
27
05/15/2015
TRANSCRIPT REQUEST - Designation of Appeal Record by Paul Eaglin, Judge Steven P Logan hearing judge(s).
28
12/10/2015
*NOTICE of Attorney Withdrawal Notice of Withdrawal of Associate Counsel filed by Michael A Johns. *Document filed in error, attorney notified to re-file with correct PDF document on 12/11/2015
29
12/11/2015
NOTICE TO FILER OF DEFICIENCY re: 28 Notice of Attorney Withdrawal (No Longer with Firm Only) filed by Carolyn W Colvin. Incorrect PDF attached. The PDF Notice that was attached was for a different case. FOLLOW-UP ACTION REQUIRED: Please refile with correct PDF document. Deficiency must be corrected within one business day of this notice. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
30
12/11/2015
NOTICE of Attorney Withdrawal Notice of Withdrawal of Associate Counsel and NOTICE of Waiver of Electronic Service filed by Michael A Johns. *Modified to add event on 12/14/2015
31
06/12/2017
MANDATE of USCA reversing District Court decision and remanding re: 15-15979 as to [25] Notice of Appeal filed by Barbara Ann Ressler.
1
Memorandum
2
NDA
2 Attachments
32
06/13/2017
ORDER - Remanding this case to the Administrative Law Judge for the calculation and award of benefits consistent with the opinion of the Ninth Circuit Court of Appeals. To the extent a judgment is required for this case to be remanded, this Order shall serve as the judgment. Signed by Judge Steven P Logan on 06/12/2017.
33
09/01/2017
First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Barbara Ann Ressler.
1
Text of Proposed Order
1 Attachment
34
09/01/2017
AFFIDAVIT of Howard D. Olinsky, Esq. re: [33] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Plaintiff Barbara Ann Ressler.
1
Exhibit All Professional Time
2
Exhibit B Attorney Time
3
Exhibit C Paralegal Time
4
Exhibit D Postage Expenses
5
Exhibit E Travel Expenses
6
Exhibit F Affirmation and Waiver of Direct Payment of EAJA Fees
7
Memorandum In Support
8
Certificate of Service
9
Statment pursuant to Local Rule 54.2 (d)(1)
9 Attachments
35
09/15/2017
RESPONSE to Motion re: [33] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Carolyn W Colvin.
36
09/22/2017
REPLY to Response to Motion re: [33] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Barbara Ann Ressler.
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