Sene v. Colvin
Court Docket Sheet

District of Alaska

1:2016-cv-00017 (akd)

MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Howard D. Olinsky. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2318855.) by Susan Eleanor Sene.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA SUSAN ELEANOR SENE, Case No. 1:16-cv-00017-SLG Plaintiff(s), MOTION AND APPLICATION OF vs. NON-ELIGIBLE ATTORNEY FOR NANCY A. BERRYHILL, PERMISSION TO APPEAR AND Acting Commissioner of Social Security, PARTICIPATE IN THE UNITED STATES DISTRICT COURT Defendant(s). FOR THE DISTRICT OF ALASKA To the Honorable Judge of the above-entitled court: I, Howard D. Olinsky, hereby apply for permission to appear and (name) participate as counsel for Susan Eleanor Sene, plaintiff, (Name of party) (plaintiff/defendant) in the above-entitled cause pursuant to Rule 83.1 (d) of the Local Rules for the United States District Court, District of Alaska. I hereby apply for permission to appear and participate as counsel WITHOUT ASSOCIATION of local counsel because [check whichever of the following boxes apply, if any]: I am a registered participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. I have concurrently herewith submitted an application to the Clerk of the Court for registration as a participant in the CM/ECF System for the District of Alaska and consent to service by electronic means through the court's CM/ECF System. For the reasons set forth in the attached memorandum. Case 1:16-cv-00017-SLG Document 17 Filed 04/20/17 Page 1 of 4 OR I hereby designate, a member of the Bar of this court, (Name) who maintains an office at the place within the district, with whom the court and opposing counsel may readily communicate regarding conduct of this case. DATE: (Signature) Howard D. Olinsky (Printed Name) (Address) (City/State/Zip) (Telephone Number) (e-mail address) Consent of Local Counsel* I hereby consent to the granting of the foregoing application. DATE: (Signature) (Printed Name) (Address) (City, State, Zip) (Telephone) (*Member of the Bar of the United States District Court for the District of Alaska) Case 1:16-cv-00017-SLG Document 17 Filed 04/20/17 Page 2 of 4 DECLARATION OF NON-ELIGIBLE ATTORNEY Full Name: Howard D. Olinsky Business Address: 300 S. South Street, Ste. 420, Syracuse, NY 13202 (Mailing/Street) (City, State, ZIP) Residence: 4435 Swissvale Drive, Manlius, NY 13104 (Mailing/Street) (City, State, ZIP) Business Telephone: 315-701-5780 e-mail address: holinsky@windisability.com Other Names/Aliases: N/A Jurisdictions to Which Admitted and year of Admission: See attached sheet (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) (Jurisdiction) (Address) (Year) Are you the subject of any pending disciplinary proceeding in any jurisdiction to which admitted? Yes No (If Yes, provide details on a separate attached sheet) Have you ever been suspended from practice or disbarred in any jurisdiction to which admitted? Yes No (If Yes, provide details on a separate attached sheet) In accordance with D.AK. LR 83.1(d)(4)[A](vi), I certify I have read the District of Alaska local rules by visiting the court's website at http://www.akd.uscourts.gov and understand that the practices and procedures of this court may differ from the practices and procedures in the courts to which I am regularly admitted. A Certificate of Good Standing from a jurisdiction to which I have been admitted is attached. Pursuant to 28 U.S.C. §1746, I hereby declare under penalty of perjury that the foregoing information is true, correct, and accurate. Dated: April 20, 2017 s/Howard D. Olinsky (Signature of Applicant) Case 1:16-cv-00017-SLG Document 17 Filed 04/20/17 Page 3 of 4 Attachment to Pro Hac Vice Application for Howard D. Olinsky: Court Date of Admission In Good Standing? New York State 02/07/1986 YES State of Georgia 01/23/2014 YES United States Supreme Court 04/01/1991 YES Court of Appeals for 2nd Circuit 11/01/2002 YES Court of Appeals for 6th Circuit 10/15/2013 YES Court of Appeals for Federal Circuit 06/12/2007 YES U.S. Court of Veteran’s Appeals, Washington D.C. 06/12/2007 YES U.S.D.C., NDNY 04/22/1986 YES U.S.D.C., WDNY 01/29/2001 YES U.S.D.C., EDNY 03/21/2003 YES U.S.D.C., SDNY 03/25/2003 YES U.S.D.C., DCT 12/10/2010 YES U.S.D.C., NDFL 10/31/2011 YES U.S.D.C., EDMI 02/25/2013 YES U.S.D.C., WDMI 12/26/2013 YES U.S.D.C., EDTX 12/20/2013 YES U.S.D.C., EDAR 01/03/2014 YES U.S.D.C., WDAR 01/03/2014 YES U.S.D.C., MDGA 01/28/2014 YES U.S.D.C., NDIL 01/30/2014 YES U.S.D.C., NDGA 02/10/2014 YES U.S.D.C., EDWI 04/14/2014 YES U.S.D.C., NDTX 05/15/2014 YES U.S.D.C., DCO 06/18/2014 YES U.S.D.C., SDGA 06/02/2014 YES U.S.D.C., WDWI 07/03/2014 YES U.S.D.C., WDTX 09/15/2014 YES U.S.D.C., NDIN 08/04/2015 YES U.S.D.C., CDIL 09/24/2015 YES U.S.D.C., SDIL 09/25/2015 YES U.S.D.C., EDMO 04/13/2017 YES Case 1:16-cv-00017-SLG Document 17 Filed 04/20/17 Page 4 of 4

Certificate of Good Standing

AO 136 (Rev. 10/13) Certificate of Good Standing UNITED STATES DISTRICT COURT for the Northern District of New York CERTIFICATE OF GOOD STANDING I, Lawrence K. Baerman, Clerk of this Court, certify that HOWARD D. OLINSKY, Bar # 102297, was duly admitted to practice in this Court on April 22, 1986, and is in good standing as a member of the Bar of this Court. Dated at Syracuse, New York on March 27, 2017 (Location) (Date) Lawrence K. Baerman CLERK DEPUTY CLERK Case 1:16-cv-00017-SLG Document 17-1 Filed 04/20/17 Page 1 of 1

MOTION to Remand to Social Security by Susan Eleanor Sene.

1 HOWARD OLINSKY Attorney for Plaintiff 2 Pro hac vice 3 Olinsky Law Group One Park Place 4 300 South State Street 5 Syracuse, New York 13202 Telephone: (315) 701-5780 6 Fax: (315) 701-5781 holinsky@windisability.com 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ALASKA 10 SUSAN ELEANOR SENE, 11 Plaintiff, CIVIL ACTION NO. 1:16-cv-00017 12 (SLG)-v-13 14 NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, 15 16 Defendant.-----------------------------------------------------------17 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT 18 OF A SOCIAL SECURITY APPEAL 19 ISSUES PRESENTED FOR REVIEW 20 1. The ALJ’s residual functional capacity determination is unsupported by substantial 21 evidence because the ALJ erred in weighing and evaluating the medical opinion evidence 22 of record. 23 2. The ALJ’s Step 4 determination is unsupported by substantial evidence because the ALJ relied on vocational testimony elicited in response to an incomplete hypothetical 24 question. 25 PROCEDURAL STATUS 26 On August 27, 2010, Susan Eleanor Sene ("Plaintiff") protectively filed an application 27 for disability insurance benefits and supplemental security income alleging disability beginning 28 1 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 1 of 27 1 on April 14, 2009, due to knee replacement, knee injury, severe back pain, and back injury. 2 Administrative Transcript ("T") 93, 206-15, 510. The applications were denied initially on 3 January 27, 2011, and denied upon reconsideration on June 14, 2011. T 117-20, 124-26. On 4 5 October 16, 2012, a hearing was held before Administrative Law Judge ("ALJ") Paul T. Hebda, 6 who issued a decision on January 14, 2013 concluding that Plaintiff is not disabled. T 18-26, 52-7 91. On April 21, 2014, the Appeals Council denied review, and Plaintiff filed suit in Federal 8 District Court for the District of Alaska to challenge the final Agency decision. T 1-3, 620-22. 9 On March 6, 2015, the Honorable Ralph R. Beistline entered an Order granting Plaintiff’s 10 11 motion to remand the case to the Agency for further consideration, because the "ALJ improperly 12 gave greater weight to the opinions of the non-examining physicians than to Claimant’s treating 13 physicians." T 624, 630. The Court detailed the significant support in the record for Dr. 14 Columb’s opinion, and concluded that "the ALJ unreasonably failed to give Dr. Columb 15 controlling weight." T 634. The Court also noted that the ALJ’s reliance upon the non-16 17 examining state agency medical consultant was erroneous, because the opinion was rendered on 18 June 2011, leaving several years of medical evidence which were not considered; the court found 19 "his opinion should not be allocated more weight than a physician who had recently treated the 20 Claimant." T 635-36. The Court further found the ALJ’s assessment of Plaintiff’s credibility 21 22 speculative, and determined the credibility finding was unsupported by substantial evidence. T 23 639-40. Following the entry of this Order, Plaintiff’s case was returned to the ALJ for further 24 consideration and a second hearing, held on May 4, 2016. T 538-99. The ALJ again denied the 25 claim on September 14, 2016. T 510-29. Plaintiff filed the present civil action to challenge that 26 decision. This court has jurisdiction of this action. 42 U.S.C. §§ 405(g), 1383(c)(3). 27 28 2 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 2 of 27 1 STATEMENT OF FACTS 2 Plaintiff was 55 years old on the alleged onset date. T 93. She completed two years of 3 college. T 231. She has the following past work: display manager, department manager, and 4 5 upholsterer. T 99. Plaintiff’s date last insured is December 31, 2014. T 254. 6 A. Medical Opinion Evidence 7 On January 27, 2011, Charlies Fina, M.D., a non-examining state Agency physician, 8 reviewed the available medical records and opined Plaintiff has the residual functional capacity 9 for light work with only occasional climbing ramps/stairs or ladders/ropes/scaffolds, frequent 10 11 balancing and stooping, and occasional kneeling, crouching, and crawling. T 97-99. This was 12 affirmed by I.A. Woodward, D.O., on June 10, 2011, with the additional limitation that she 13 should avoid exposure to hazards, and she has limited ability to reach, handle, and finger due to 14 carpal tunnel syndrome. T 110-12. 15 On April 26, 2011, David Musicant, D.O., completed a medical assessment of Plaintiff’s 16 17 ability to do physical work-related activities. T 389-91. He opined the following: lifting and 18 carrying would be affected by impairment; she could lift and/or carry 10 pounds occasionally 19 and 5 pounds frequently (stating pain with lifting and trouble with side to side movement as 20 reasons to support this finding); standing and walking would be affected by impairment; she 21 22 could walk two to four hours total in an 8-hour day and 30 minutes at a time; she could sit for 4 23 hours total in an 8-hour day and 15 minutes at a time (stating low back problems as support for 24 his opinion); she can occasionally climb, stoop, crouch, kneel; she can frequently balance; she 25 can never crawl; reaching, handling, feeling, and pushing/pulling are limited due to numb hands; 26 she has environmental restrictions and should avoid heights and vibrations due to increased pain. 27 28 T 389-91. Dr. Musicant opined that she would have difficulty doing light housework. T 391. 3 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 3 of 27 1 On March 12, 2012, Dr. Columb issued a medical statement where she noted the 2 presence of the following: fatigue on exertion; dyspnea on mild exercise; peripheral edema; 3 orthopnea; pain with lying flat in bed. T 455. She opined Plaintiff has the following limitations 4 5 and abilities: Plaintiff can work 2 hours per day; she can stand 30 minutes at one time; she can sit 6 for 30 minutes at one time; she can occasionally lift 10 pounds; she cannot frequently lift any 7 amount of weight; she needs to elevate her legs frequently during an 8-hour workday. T 456. 8 She wrote that Plaintiff has chronic lymphedema and opined that she needs to elevate her legs 9 every 30 minutes to decrease swelling and relieve pain. T 456. In a medical statement regarding 10 11 physical and mental abilities and limitations, Dr. Columb noted diagnoses of lymphedema, 12 chronic back pain, chronic leg pain, restless leg syndrome, scoliosis, degenerative disc disease, 13 bulging disc at L2-3, knee osteoarthritis, and hip osteoarthritis. T 458-59. She opined Plaintiff 14 has the following limitations and abilities: She can stand for 30 minutes at one time; she can sit 15 for 30 minutes at one time; she can work 2 hours per day; she can occasionally lift 10 pounds; 16 17 she cannot lift weight on a frequent basis; she can never bend; she can occasionally stoop; she 18 can occasionally raise left and right arm over shoulder; she needs to frequently elevate legs 19 (every 30 minutes) during an 8-hour workday. T 458. In a medical statement regarding hip 20 problems, Dr. Columb noted chronic hip pain and an inability to ambulate effectively. T 460-61. 21 22 She opined the following additional limitations: Plaintiff can never climb ladders and she can 23 occasionally climb stairs. T 460. She opined that Plaintiff suffers from moderate to severe pain. 24 T 460. In a medical statement regarding knee problems, Dr. Columb noted chronic pain and an 25 inability to ambulate effectively in the left knee. T 462. She noted the following as to her right 26 knee: chronic pain; chronic stiffness; limitation of motion; crepitus; instability; joint space 27 28 4 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 4 of 27 1 narrowing; bony destruction; and inability to ambulate effectively. T 462. She commented that 2 Plaintiff experiences bilateral knee pain related to pelvic misalignment. T 462. 3 Dr. Columb completed a residual functional capacity ("RFC") form on October 2, 2012. 4 5 T 490-95. As to the frequency and purpose of contact with Plaintiff, she wrote the following: 6 "[f]irst saw patient in clinic in October 2011 when she moved to Sitka. I have seen her in clinic 7 multiple times since then for various issues including: low back pain, lower extremity edema, 8 hypertension, knee pain, arthritis." T 490. She described Plaintiff’s symptoms as "chromic low 9 back pain related to bulging discs at multiple levels along with radicular symptoms" and 10 11 "bilateral knee arthritis and chronic knee pain." T 490. Dr. Columb noted MRI of lumbosacral 12 spine from April 2011 showing generalized disc degeneration. T 490. She diagnosed Plaintiff 13 with low back pain due to bulging discs and radiculopathy, right knee osteoarthritis, and chronic 14 lower extremity lymphedema. T 490. Dr. Columb noted treatment including medications and 15 physical therapy, with little subjective improvement in pain levels. T 491. Dr. Columb stated 16 17 that Plaintiff’s impairment has already lasted more than a year. T 491. She opined that 18 Plaintiff’s disability prevents her from standing for 6-8 hours because prolonged standing 19 exacerbates back pain, knee pain, and leg swelling. T 491. She opined that Plaintiff can stand 20 for 1-2 hours at a time. T 491. She opined that Plaintiff can sit upright for 6-8 hours. T 492. 21 22 She opined that Plaintiff can walk non-stop for short distances and that "any walking more than a 23 few blocks causes severe back [and] knee pain." T 492. She opined that she can rarely reach up 24 above shoulders, reach down to waist level and reach down towards floor. T 492. Plaintiff can 25 lift and carry 5-10 pounds regularly. T 492. She opined that repetition of lifting, pulling, 26 holding objects will cause Plaintiff pain. T 493. She opined that Plaintiff would have difficulty 27 28 bending, squatting, and kneeling because they would cause worsening of back and knee pain. T 5 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 5 of 27 1 403. Dr. Columb noted objective medical reasons for Plaintiff’s pain as degenerative disc 2 disease, knee osteoarthritis, and bulging disc in lumbosacral spine. T 494. She believed she 3 "could do at least part time light office work." T 494. 4 5 On March 8, 2013, Dr. Columb supplemented the RFC form completed on October 2, 6 2012. T 497. She noted clinical findings and medical tests that support Plaintiff’s diagnoses. T 7 497. She stated an April 2011 MRI that showed generalized disc degeneration. She also noted 8 that examination showed a moderate amount of swelling that would be expected to cause 9 significant pain for several hours of standing. T 497. 10 11 On June 17, 2013, Plaintiff presented for an Independent Medical Examination with Jon 12 T. Abbott, M.D., P.C., with certification from the American Board of Orthopedic Surgeons. T 13 848. She complained of knee pain and pressure and feelings that her knees are giving out, and 14 reported inability to squat or kneel. T 848. She reported a knee injury in 2000 followed by 15 surgeries in 2000 and 2008, which were unsuccessful in correcting the problem. T 849. She 16 17 complained of increasing discomfort, and further complained of back pain. T 849. Dr. Abbott 18 reviewed Plaintiff’s medical records and performed a physical examination. T 850-53. On 19 examination, she could squat to 30 degrees with knee pain, there was tenderness in the lumbar 20 paraspinous region, and she had degreased range of motion in the lumbar spine. T 853. There 21 22 was evidence of a popliteal cyst and there was erythema of the distal leg on the right, as well as 23 chronic venostasis changes on the right. T 853. Dr. Abbott agreed with the recommendation 24 that Plaintiff would need revisionary knee surgery followed by post-operative therapy; she would 25 then be able to return to sedentary work in a two to three-month period, and would be stable and 26 stationary 8-12 months after surgery. T 854. 27 28 6 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 6 of 27 1 On March 29, 2016, Plaintiff underwent a functional capacity assessment at Oceanside 2 Therapy Center, in which her functional capacity was clinically tested and pertinent medical 3 records were reviewed to assess her capabilities. T 1164, 1166. Based on testing, the following 4 5 conclusions were made: she can occasionally lift-carry 10 pounds, but repetitive lift/carry is not 6 recommended; she can occasionally lift 7.5 pounds off the floor, but should keep majority of 7 loads being handled above knee level, and repetitive lifts are not recommended; she is able to lift 8 7.5 pounds to shoulder height occasionally, and should keep weight close to her trunk. T 1164. 9 Regarding push/pull, she can perform push/pull (respectively) the following weight: occasionally 10 11 44 lbs/42 lbs; frequently 22 lbs/21 lbs; and constantly 11 lbs/10 lbs. T 1164. She could perform 12 hand gripping with the following strength: occasionally 48 pounds with the right hand and 55 13 pounds with the left; frequently 24 pounds with the right hand and 28 pounds with the left; and 14 constantly 12 pounds with the right and 14 pounds on the left. T 1164. She can only 15 occasionally stand-walk, and it was explained that she "needs to rotate stand-walk activities with 16 17 sitting. She is able to stand-walk for up to 10 minutes and then she needs a 3-5-minute sitting 18 break or a seated task before she can stand-walk again." T 1164. She can occasionally bend-19 reach, but should avoid bend-reach activities at this time, and she is unable to get into a low-level 20 position secondary to back and knee pain. T 1164. She can reach the floor with her hands by 21 22 bending at the waist, "but this is not a safe position for her lumbar spine." T 1165. Elevated 23 activity is not recommended, and she should minimize stair climbing, utilize a railing, avoid 24 carrying objects while climbing, and climb only 1 flight of stairs at a time. T 1165. 25 At the hearing on May 4, 2016, Dr. Robert Skarloff reviewed the medical record and 26 provided narrative testimony of his impressions of Plaintiff’s medical history, through a self-27 28 described method of "wander[ing]" through the record to "see what pops up," essentially stating 7 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 7 of 27 1 stream-of-consciousness theories about Plaintiff’s impairments. T 544-60. Following the 2 narrative statements, he concluded that Plaintiff does not meet or medically equal a Listing. T 3 560. He indicated that his "baseline" opinion is that any person can lift and carry 50 pounds 4 5 occasionally and 25 pounds frequently, "unless there is any kind of reason not to," and he did not 6 find that Plaintiff was more limited than any other person despite her impairments. T 563-64. 7 Thus, he found Plaintiff at "baseline" and able to lift 25 found frequently and 50 pounds 8 occasionally. T 563-64. However, he indicated that if he were treating a patient with Plaintiff’s 9 impairments, he would make an orthopedic referral, and that tolerance testing for ability to lift-10 11 carry should be tested. T 564. When presented with tolerance testing in the record completed by 12 Plaintiff’s physical therapist, the Dr. Skarloff disagreed with the findings, indicated that her low 13 tolerance for physical activities was only due to pain, "that could be taken care of with pain 14 meds." T 568-69. 15 B. Medical Records 16 17 On June 26, 2009, Plaintiff visited James H. Levi, M.D., regarding fluid anterior to her 18 knee. T 347. Dr. Levi noted that he could not detect any effusion in her knee, the wound looked 19 good, and she had painless motion. T 347. On July 6, 2009, Gregory P. Titus, M.D., reviewed 20 an abdominal x-ray and prior CT studies of the abdomen and pelvis and noted mild degenerative 21 22 changes present in her lumbosacral spine. T 310. On September 24, 2009, Dr. Levi noted 23 Plaintiff had a 15 percent permanent impairment for the whole person and a 37 percent lower 24 extremity impairment. T 349. 25 On November 3, 2009, Plaintiff presented to Arizona Medical (AZ Medical) with back 26 pain. T 335. Requip, Diazepam, Naproxen, Estradiol, and Vicodin were prescribed and/or 27 28 8 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 8 of 27 1 refilled. T 335. On December 15, 2009, Plaintiff presented for follow up complaining of leg 2 swelling. T 333. It was noted that she was also experiencing back pain. T 333. 3 A December 21, 2009, MRI of the lumbar spine showed the following: mild to moderate 4 5 discogenic narrowing/degeneration localized to the L1-L2, L2-L3, and L3-L4 levels; minor 6 edematous degenerative endplate type changes at L2-L3, L4-L5, and L5-S1; all lumbar 7 interspace levels demonstrate diffuse annular disc bulge, more pronounced at the L2-L3 and L3-8 L4 levels; small focal right foraminal disc protrusion at L2-L3; minor right neural foraminal 9 stenosis at L2-L3 level; minor left neural foraminal stenosis at L2-L3 level. T 338-39. 10 11 On January 12, 2010, Plaintiff presented to AZ Medical to discuss MRI of back. T 404. 12 On July 29, 2010, she presented to AZ Medical for back pain and to discuss medications. T 399. 13 On September 7, 2010, Plaintiff followed up with Dr. Levi, and he noted occasional sharp 14 pains on the inside side of her knee while sitting and moving. On examination, she had 15 tenderness below the joint line. T 358. On December 7, 2010, she presented to AZ Medical with 16 17 back pain, requesting a refill for Hydrocodone and Naproxen for ongoing back pain. T 353. 18 Plaintiff presented to AZ Medical on February 17, 2011, for severe back pain. T 397. 19 On February 25, 2011, a CT scan revealed mild rightward convex lumbar scoliosis with 20 degenerative changes at L2-L3, L3-L4, and L4-L5, including mild left paracentric disc bulging 21 22 causing mild neural foraminal and central canal narrowing. T 367-68. 23 On February 26, 2011, Plaintiff presented to the ED at Carondelet Health Network with 24 left flank and left leg pain. T 359. Dr. Sauer noted that laboratory results showed degenerative 25 disease at L2-L3, L3-L4, and L4-L5 with a left paracentric disc bulge causing neural foraminal 26 and central canal narrowing. T 360. Dr. Sauer believed her pain was actually caused by the 27 28 lumbar findings. T 360. He prescribed Vicodin for pain and Ativan for muscle relaxation. T 9 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 9 of 27 1 360. He diagnosed her with back pain secondary to paracentric disc bulging with foraminal 2 narrowing and central canal narrowing. T 361. 3 Plaintiff presented to AZ Medical for follow up on March 29, 2011, for back pain and 4 5 herniated/bulging disc. T 396. On April 7, 2011, Plaintiff presented to Tucson Orthopaedic 6 Institute due to long-standing difficulty with low back pain and right lower extremity pain to the 7 foot. T 381. She reported transient pain and numbness of the right anterior lower extremity all 8 the way to the foot. T 382. She also complained of constant right knee pain and back pain that 9 was worse than the leg pain. T 382. Leaning forward exacerbated her symptoms. T 382. It was 10 11 noted that she did have a right partial knee arthroplasty under the direction of Dr. Levi. T 381. 12 There was a positive straight leg raise test on the right for posterior thigh pain beginning at 70 13 degrees. T 381. X-ray of lumbar spine showed idiopathic/degenerative scoliosis of lumbar spine 14 and degenerative disc disease. T 383. Dr. Baron ordered MRI of lumbar spine to evaluate her 15 right lower extremity pain. T 381. He assessed her with low back and right lower extremity 16 17 radiculopathy, degenerative disc disease of the lumbar spine, and idiopathic/degenerative lumbar 18 scoliosis. T 418. 19 An April 15, 2011, MRI of the lumbar spine showed the following: small diffuse disc 20 bulge at L1-2 with mild right and borderline left foraminal stenosis; small left foraminal/left 21 22 lateral disc protrusion at L2-3 with mild right and mild to moderate left foraminal stenosis; small 23 disc bulge at L3-4 with mild bilateral foraminal stenosis; minimal disc bulging that flattens the 24 ventral thecal sac at L4-5 with mild bilateral degenerative facet hypertrophy; minimal disc 25 bulging at L5-S1. T 421. 26 On April 21, 2011, Plaintiff followed up with Dr. Baron to discuss the MRI. T 379-80. 27 28 Dr. Baron noted it showed some disc degeneration and diagnosed her with degenerative disc 10 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 10 of 27 1 disease. T 379. He also noted that the source of her right lower extremity pain remained elusive 2 but did not emanate from her spine. T 379. Kevin J. Kelly, M.D., studied the MRI and found 3 the following: degenerative end plate signal changes; disc bulge at L1-2 and mild right and 4 5 borderline left foraminal stenosis; disc protrusion at L2-3; small disc bulge at L3-4; disc bulge at 6 L4-5. T 385. Plaintiff again treated at AZ Medical on April 26, 2011, for back pain. T 395. 7 She presented for a follow up for lower extremity edema with Tracey Columb, M.D., on 8 February 6, 2012, where she reported pain in her legs and leg cramps when walking. T 441. Dr. 9 Columb was concerned for fluid accumulation due to heart failure due to lower extremity edema. 10 11 T 448. She started Plaintiff on 40 mg of Lasix twice daily to induce diuresis. T 448. 12 She presented for follow up with Dr. Columb for edema in legs on February 9, 2012. T 13 438. She reported that Lasix helped decrease swelling in first few days of use but made less of a 14 difference in the past couple of days. T 438. She was still experiencing cramping and aching in 15 legs with walking. T 438. Dr. Columb suspected cardiac diastolic dysfunction, lymphedema, or 16 17 a combination of the two. She suggested Plaintiff continue to elevate her legs and to use 18 compression stockings if it helps with discomfort from swelling. T 440. Dr. Columb noted 19 chronic muscle aches in the left low back and discomfort. T 442. She observed mild to 20 moderate TTP in left flank and side upon back exam. T 443. 21 22 Plaintiff presented to Sitka Medical Center on February 23, 2012. T 433. She reported 23 chronic pain in her legs and back. She reported aching in legs after walking and that pain 24 improves when she stops walking. T 433. At the time, she was taking 40 mg of OxyContin 25 twice daily and Vicodin 1-2 times daily as needed for breakthrough pain. T 433. Dr. Columb 26 was concerned about Plaintiff’s swelling as it indicated possible claudication or vascular disease. 27 28 11 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 11 of 27 1 Dr. Columb referred Plaintiff to physical therapy for help with chronic leg swelling and 2 suggested TED hose or compression stockings for symptom control and comfort. T 436, 488. 3 On March 7, 2012, she presented to physical therapy at Sitka Community Hospital due to 4 5 side lumbar pain and medial knee pain, with an average pain level of 7 out of 10. T 449. 6 On April 27, 2012, Plaintiff followed up for swollen legs with Dr. Columb. T 475. She 7 complained of being "worn out and tired just walking." T 475. Dr. Columb prescribed 8 OxyContin for severe pain and Hydrocodone for breakthrough pain. T 478. She also 9 recommended Plaintiff continue to elevate legs and continue Lasix as needed. T 478. 10 11 Plaintiff presented to Tucson Orthopaedic Institute on February 20, 2013, complaining of 12 right knee pain and mid back pain. T 498. She reported sharp, aching pain as 9 out of 10. T 13 498. She reported swelling, tenderness, tingling, and numbness, and examination revealed 14 crepitus in the knee, antalgic gait, moderate effusion, and laxity medially with varus valgus stress 15 testing. T 498. Edward Petrow, Jr., D.O., suggested she either continue pain management 16 17 therapy or undergo a revision arthoplasty of her knee, which interested her because she felt she 18 could not continue taking pain medication for much longer. T 499. 19 In a March 7, 2013, follow up Plaintiff reported continued pain in her right knee. T 500. 20 She reported a sensation of instability in her knee and difficulty with kneeling, squatting, or 21 22 climbing. T 500. Dr. Petrow noted she is still bothered by pain after trying physical therapy and 23 narcotic pain medications. T 500. He observed her gait with a mild limp on the right. T 500. 24 Beginning October 10, 2013, Plaintiff established care at Rebound Physical therapy for 25 knee problems, and she maintained care with Rebound through March 2014. T 867-1001. 26 Examination findings included decreased range of motion, antalgic, limping gait, crepitus, and 27 28 reduced strength in the knee. T 877, 1001. Diagnostic imaging confirmed progression of 12 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 12 of 27 1 degenerative change in the knee and instability. T 1001. She received physical therapy treatment 2 and her pain was managed with narcotic medications, including regular prescriptions for 3 hydrocodone acetaminophen. T 867-997. Dr. Borus noted that her medial leg pain is most likely 4 5 referred from the medial joint, but may also be related to her lumbar spine. T 979. Upon 6 medical advice, she underwent a surgical revision of her knee replacement surgery in January 7 2014 to remedy continued degeneration. T 856, 988, 1033, 1057, 1060. 8 From May to November 2014, Plaintiff established care at Sitka Community Hospital for 9 treatment of chronic pain in the knees and low back, as well a chronic lower leg swelling. T 10 11 794-808. She was maintained on pain medications and was prescribed citalopram for anxiety and 12 stress. T 794-808. 13 On January 7, 2014, Plaintiff was involved in a motor vehicle collision and suffered 14 injuries to her neck, and imaging revealed degenerative changes in the lumbar spine. T 1103-15. 15 She underwent physical therapy with Craig Henderson, DCPA, through March 23, 2015, to 16 17 decrease pain and improve functionality in the right hand, neck, and back. T 831-47. 18 During that time, she also received orthopedic care and pain management treatment, as 19 well as treatment of the right hand for De Quarvain’s. T 812-22, 1117-27. She was treated with 20 injections into the thumb. T 817. In September 2016, she established care at Mountainside 21 22 Family Healthcare clinic with Dr. Debra Brushafer after her previous physician resigned. T 23 1085. Dr. Brushafer reviewed her medical history and noted she had been managed on narcotic 24 pain medication, and recommended a pain management regimen. T 1085. She noted that chronic 25 pain should not be managed by narcotics due to the associated risks; she indicated that a referral 26 to a pain specialist would help get her pain to a level where she can enjoy daily activities, but it 27 28 13 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 13 of 27 1 would not eliminate her pain. T 1085. She noted she needed new imaging studies, and would be 2 referred for treatment in Anchorage or Seattle to see a pain specialist. T 1086-87. 3 C. Hearing Testimony 4 5 At the October 16, 2012, hearing, Plaintiff testified to the following: She fell in 2000 and 6 tore the meniscus in her right knee, and subsequently underwent knee surgery in 2000 and a 7 partial knee replacement in 2008. T 59. She has had problems with her knee ever since; namely 8 she has constant, severe pain of a seven and eight out of ten that is "sharp stabbing pain." T 59-9 60. She has sharp pains down the front of her legs when she walks. T 60. She was going to 10 11 physical therapy but had to stop because "[she] couldn’t pay for it." T 61. Her pain is 12 exacerbated by standing for long periods of time. T 61. If she "stand[s] for more than maybe 13 five minutes, ten minutes at the most, the pain still shoots down [her] leg." T 61. She has taken 14 Vicodin and OxyContin for pain since 2008, the latter of which she can no longer afford. T 61-15 62. Her medications make her dizzy, drowsy, and have even caused her to fall over. T 62. She 16 17 cannot walk excessively because it causes pain "between a seven and an eight on a zero to ten 18 scale, and [she has] to stop and rest by sitting down for a few minutes [to bend] the knee." T 63. 19 Her knee affects her ability to drive. T 63. Her back pain started about two months after she had 20 knee surgery. T 65. Her knee replacement causes her to walk differently; "[she has] one hip 21 22 that’s higher than—[she thinks] it’s [her] right side is higher than [her] left side, and it’s caused 23 [her] to walk different, and it—that’s what’s causing the pain." T 65. 24 If she tries to lift something or grab something in front of her, it causes sharp pain in her 25 lower left side of her back. T 65. Trying to pick up something from the floor causes knee and 26 back pain. T 66. When dressing, she has to "sit on the bed and have [her] feet up on the bed in 27 28 order to put [her] socks on." T 66. She lives on a 40-foot boat with a fisherman and has 14 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 14 of 27 1 handholds throughout the boat to help her get up and down. T 66. She does not do any of the 2 fishing. T 66. She gets relief from the swelling in her legs when she puts her legs up. T 69. Her 3 domestic partner helps her with some of the cooking "because…there’s some times that [she] 4 5 can’t stand up long enough to do the cooking." T 69. Sometimes he helps her get up out of bed 6 due to back pain. T 69. 7 At the hearing on May 4, 2016, she reported that she tried working since her last hearing, 8 but she was not able to continue. T 575. She fell several times and had to take pain pills three 9 times during a workday to make it through, and she was required to stand for about 4 ½ hours 10 11 during the day. T 575. Narcotic pain medications take the edge off her pain, but do not relieve it. 12 T 579. She needed to have someone pick her up and drop her off to work because she should not 13 drive to medication side effects. T 577. After a work shift, she would lay down to rest and not 14 get up again until the next day. T 575. She testified to similar pain in her back and legs, and it 15 was her pain that caused her to fall. T 576-77. She suffers severe swelling in the legs and has to 16 17 elevate them. T 581. 18 CONTENTIONS 19 Pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) this Court may review the record to 20 determine whether the Commissioner applied the proper legal standards and whether substantial 21 22 evidence supports the Commissioner’s final decision to deny the Plaintiff benefits. Substantial 23 evidence means more than a mere scintilla of evidence. It means such relevant evidence as a 24 reasonable mind might accept as adequate to support the ALJ’s conclusion. Richardson v. 25 Perales, 402 U.S. 389, 401 (1971); Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012); 26 Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 27 28 To be considered disabled under the Social Security Act, a Plaintiff must demonstrate an 15 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 15 of 27 1 "inability to engage in any substantial gainful activity by reason of any medically determinable 2 physical or mental impairment which can be expected to result in death or which has lasted or 3 can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 4 5 423(d)(1)(A). 6 1. The ALJ’s residual functional capacity determination is unsupported by substantial evidence because the ALJ erred in weighing and evaluating the 7 medical opinion evidence of record. 8 RFC is the most someone can do despite their mental and physical limitations. Berry v. 9 Astrue, 622 F.3d 1228, 1233 (9th Cir. 2010); 20 C.F.R. § 404.1545(a)(1), 416.945(a)(1). In 10 11 determining a claimant’s RFC, the ALJ must base his findings on "all of the relevant medical 12 and other evidence," including a claimant’s testimony regarding the limitations imposed by his 13 impairments. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). 14 The ALJ determined that Plaintiff has the RFC to perform: 15 Medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except [she] is 16 limited to occasional climbing of ladders, ropes, and scaffolds and the avoidance 17 of concentrated exposure to unprotected heights. 18 T 516. This determination was error. 19 In determining RFC, more weight must be given to the opinion of treating physicians, 20 and if there is a conflict'"the ALJ must give specific, legitimate reasons for disregarding the 21 22 opinion of the treating physician."’ Lamb v. Colvin, 3:13-cv-00047, 2014 U.S. Dist. LEXIS 23 10843, at *33 (D. Alaska Jan. 29, 2014) (Gleason, J.) (quoting Batson v. Comm’r of Soc. Sec. 24 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)). Generally, "‘more weight should be given to the 25 opinion of a treating source than to the opinion of doctors who do not treat the claimant.’" 26 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); see Lester v. Chater, 81 F.3d 821, 830 27 28 (9th Cir. 1995) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). 16 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 16 of 27 1 Pursuant to the treating physician rule, the medical opinion of the physician engaged in 2 the primary treatment of a claimant is given "controlling weight" if it is well-supported by 3 medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with 4 5 the other substantial evidence in the case record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). If 6 a treating physician’s opinion is not given "controlling weight," it is still entitled to deference, 7 and the ALJ must assess the following factors to determine how much weight to afford the 8 opinion: the length of the treatment relationship, the frequency of examination by the treating 9 physician, the medical evidence supporting the opinion with the record as a whole, the 10 11 qualifications of the treating physician, and other factors tending to support or contradict the 12 opinion. 20 C.F.R. § 404.1527(c)(2). 13 The ALJ’s entire analysis is erroneous for the following reasons. 14 i) The ALJ erred in evaluating Dr. Columb’s opinions of limitations. 15 In the 2013 ALJ decision, which this Court reversed on March 6, 2015, the ALJ gave 16 17 "little weight" to the disabling medical source statements completed by treating physician Dr. 18 Columb, which went through a function-by-function assessment as to Plaintiff’s abilities. T 24. 19 As noted above, Dr. Columb opined, inter alia, that Plaintiff has the following functional 20 limitations: She can work 2 hours per day; she can stand 30 minutes at one time; she can sit for 21 30 minutes at one time; she can occasionally lift 10 pounds; she cannot frequently lift any 22 23 amount of weight; she needs to elevate her legs every 30 minutes to decrease swelling and 24 relieve pain during an 8-hour workday; she can never bend; she can occasionally stoop; she can 25 occasionally raise left and right arm over shoulder; she is unable to ambulate effectively; she can 26 never climb ladders and she can occasionally climb stairs. T 456, 458, 460-61. 27 28 The ALJ (in 2013) discredited Dr. Columb’s opinions because: "either this doctor failed 17 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 17 of 27 1 to cite specific objective medical findings or this doctor failed to explain how any cited findings 2 were linked to restrictions in the claimant’s functioning[;]" and "the opinion offered by Dr. 3 Columb in October 2012 is inconsistent with her earlier opinions, as it indicates a much greater 4 5 ability to sit for prolonged periods of time." T 24. 6 This Court specifically evaluated each of those reasons and concluded that the "ALJ 7 improperly gave greater weight to the opinions of the non-examining physicians than to 8 Claimant’s treating physicians." T 624, 630. The Court concluded that, contrary to the ALJ’s 9 assertion, "Dr. Columb did reference specific objective findings and linked the findings to 10 11 Claimant’s restrictions," including her discussion of the objective medical reasons for Plaintiff’s 12 pain, described as degenerative disc disease, knee osteoarthritis, and a bulging disc in the 13 lumbosacral spine. T 633. The Court detailed the significant support in both Dr. Columb’s 14 opinion and references to MRI findings, as well as the record as a whole, and concluded that "the 15 ALJ unreasonably failed to give Dr. Columb controlling weight." T 634. 16 17 The Court’s holding on this issue is the law of the case, and the ALJ committed legal 18 error by again discounting Dr. Columb’s opinion on remand without proper rationale. "The law 19 of the case doctrine generally prohibits a court from considering an issue that has already been 20 decided by that same court or a higher court in the same case." Stacy v. Colvin, 825 F.3d 563, 21 22 567 (9th Cir. 2016). Thus, this Court should reverse the ALJ’s decision based on its 23 inconsistency with the Court’s 2015 Order. 24 As discussed before the Court in Plaintiff’s previous appeal on this same issue, Dr. 25 Columb was Plaintiff’s treating physician from at least February 6, 2012, until March 8, 2013, 26 and as such, her opinion should have been afforded greater weight. T 433, 438, 441, 490-95. 27 28 Dr. Columb supplemented the completed RFC form on March 8, 2013, indicating a treating 18 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 18 of 27 1 relationship until at least that date. T 497. This treatment relationship existed for at least a year, 2 which is long enough to have obtained a "longitudinal picture"1 of Plaintiff’s impairments, thus 3 requiring a greater allocation of weight to her opinion. See 20 C.F.R. § 404.1527(c)(2)(i). 4 5 Dr. Columb noted objective medical reasons for Plaintiff’s pain as degenerative disc 6 disease, knee osteoarthritis, and bulging disc in lumbosacral spine. T 494. Dr. Columb also 7 noted MRI of lumbosacral spine from April 2011 showing generalized disc degeneration to 8 support her opinions of Plaintiff’s limitations. T 490. Additionally, Dr. Columb supplemented 9 the RFC forms completed on October 2, 2012, with an addendum written on March 8, 2013, 10 11 where she noted clinical findings and medical tests that support Plaintiff’s diagnoses. T 497. 12 She referenced an April 2011 MRI that showed generalized disc degeneration and noted that 13 physical examination showed a moderate amount of swelling that would be expected to cause 14 significant pain for several hours of standing. T 497. Further still, Dr. Columb’s opinions of 15 limitations are consistent with other disabling assessments in the medical evidence of record. 16 17 Namely, Dr. Musicant’s opinion (discussed in the proceeding section) is consistent with Dr. 18 Columb’s findings. 19 Despite this Court’s finding that the ALJ failed to follow the regulations, the ALJ once 20 again rejected Dr. Columb’s opinions based on her failure "to cite objective findings to support 21 22 her opinion." T 526. Compared with the ALJ’s 2013 decision, his conclusion was unchanged, 23 albeit with greater detail; to support the repeated rejection of Dr. Columb’s opinion, he described 24 less than severe findings and "absent" evidence, such as the lack of an impairment which would 25 limit her ability to reach, and a lack of findings consistent with radiculopathy. T 526. However, 26 27 1 "When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source's opinion more weight than we 28 would give it if it were from a nontreating source." 20 C.F.R. § 404.1527(c)(2)(i). 19 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 19 of 27 1 the absence of certain examination findings is irrelevant to whether the present examination 2 findings sufficiently support the opined limitations, which this Court held are consistent with the 3 record as a whole and Dr. Columb’s treatment notes. Stacy v. Colvin, 825 F.3d 563, 567 (9th 4 5 Cir. 2016). 6 Defendant may argue that the evidence on remand is substantially different, and thus the 7 law of the case doctrine should not apply. See Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir. 8 1991). However, this is unavailing. Dr. Columb’s opinion, supporting explanation, and 9 treatment notes are unchanged, and the expanded record remains consistent with her opinion. 10 11 Indeed, there is no evidence of medical improvement, and the additional assessments contained 12 in the file are the opinions of Dr. Abbott and the functional capacity assessment completed 13 through testing at Oceanside Therapy Center. Both of these assessments are described in detail 14 in the statement of facts section titled Medical Opinion Evidence. Both opinions were rendered 15 after detailed examinations, and describe Plaintiff’s functional capacity as sedentary or less, with 16 17 significant limitations described based upon objective examinations and testing. Thus, the 18 evidence both before and after this Court’s decision in 2015 shows that Plaintiff has the capacity 19 for sedentary work at best, and there are no significant changes to render application of the law 20 of the case doctrine inappropriate. 21 22 Importantly, the only evidence in the record which supports an RFC for medium work is 23 the opinion of testifying medical expert Dr. Robert Skarloff, which the ALJ accorded controlling 24 weight and adopted in full. T 528. However, this was legal error for several reasons. 25 First, the opinion of a non-treating source is never entitled to controlling weight in social 26 security administrative decisions. "‘Controlling weight’" may only be accorded to the opinion of 27 28 a'treating source.’" Massaro v. Colvin, No. 5:14-CV-00134-PSG, 2015 WL 151323, at *2 20 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 20 of 27 1 (N.D. Cal. Jan. 8, 2015) (citing 20 C.F.R. § 404.1527(c); Social Security Ruling (SSR) 96–2p; 2 SSR 96–5p; SSR 96–8p; SSR 06–03p; Heckler v. Edwards, 465 U.S. 870, 873, n.3 (1984) 3 (noting binding nature of SSRs); See also Ritchotte v. Astrue, 281 F. App'x 757, 759 (9th Cir. 4 5 2008) (Remanding where "the ALJ erroneously declined to give controlling weight to the 6 treating physician's assessment, he instead based his RFC determination upon the reports of non-7 examining state agency physicians.") Thus, the ALJ’s adoption of this opinion was legally 8 improper, and warrants remand in and of itself. 9 The error is of even greater harm given the inconsistency of Dr. Skarloff’s opinion with 10 11 the evidence of record, including the opinions of Dr. Columb, Dr. Musicant, and Dr. Abbott. 12 Further, Dr. Skarloff failed to support his opinion by references to the evidence. Indeed, while 13 Dr. Skarloff testified for 15 pages of hearing transcript in his "wandering" method, speaking in a 14 jumbled stream-of-consciousness pattern, he stated nothing more than vague conclusions 15 addressing how the representative’s brief or other physician’s opinions are not clearly supported 16 17 by the record. T 544-60. However, when asked for the basis of his opinion that Plaintiff is 18 capable of medium work, he could not provide a clear answer or even relate that RFC to the 19 Plaintiff; he merely indicated that his "baseline" opinion is that any person can lift and carry 50 20 pounds occasionally and 25 pounds frequently, "unless there is any kind of reason not to." T 21 22 563-64. However, his comparison to Plaintiff’s limitations as consistent with the RFC of any 23 general person "at baseline" is unsupported by the record and is in fact contradicted by the ALJ’s 24 own findings. Indeed, the assertion that nothing in the record imposes any limitations on the 25 Plaintiff which would diminish her RFC beyond that of any person’s baseline would suggest that 26 she has no severe impairments whatsoever. However, the ALJ found Plaintiff suffers the severe 27 28 impairments of degenerative disc disease and scoliosis of the lumbar spine, osteopenia, episodic 21 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 21 of 27 1 lymphedema, status-post total right knee replacement, arthritis of the wrist, and obesity. T 514. 2 "The regulations, 20 C.F.R. §§ 404.1520(c), 416.920(c) provide that an impairment is severe if it 3 significantly limits one's ability to perform basic work activities." Hamilton v. Callahan, 134 4 5 F.3d 377 (9th Cir. 1998) (emphasis added). Therefore, the ALJ’s own finding of these severe 6 impairments indicates that Plaintiff suffers significant limitations in ability to perform basic work 7 activities directly contradicts Dr. Skarloff’s opinion that Plaintiff is no more limited than any 8 other individual "at baseline." 9 Finally, Dr. Skarloff acknowledged the tolerance testing in the record which revealed 10 11 significant limitations. T 568-69. However, he argued that Plaintiff was simply limited by pain, 12 and this would resolve with pain medications. T 568-69. This is nothing more than speculation, 13 and the record indicates that pain medications are insufficient to control Plaintiff’s symptoms 14 and increase functionality. Indeed, as described above, she indicated medications were generally 15 not effective, and her physicians indicated that it was unsafe to continue treating Plaintiff with 16 17 pain medications. T 1086. Because of this, she was being referred to a pain specialist in 18 Anchorage or Seattle for further options. T 1086-87. 19 Therefore, the ALJ’s reliance on the opinion from Dr. Skarloff, a non-examining 20 physician, was improper. Not only was his opinion contrary to every other medical functional 21 22 assessment in the file, but his careless suggestions of simply medicating Plaintiff to cover up the 23 pain are contrary to the recommendations of her physicians, who advised against this due to risks 24 of long-term narcotic use. Plaintiff’s treating physicians who were involved in her care and 25 performed first-hand evaluations of her conditions and their responses to treatment were in a 26 better position to evaluate her functional capacity and render well-supported opinions. This is 27 28 supported by the fact that each of the treating and examining physicians were consistent with one 22 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 22 of 27 1 another in determining that Plaintiff is limited to sedentary activity or less. The ALJ’s RFC 2 determination, based only upon Dr. Skarloff’s unsupported opinion, is therefore unsupported by 3 substantial evidence. 4 5 ii) The ALJ erred in evaluating Dr. Musicant’s opinions of limitations. 6 The ALJ gave "little weight" to the opinions offered by Dr. Musicant. T 524-25. 7 However, the ALJ failed to indicate whether he made any attempts to comply with this Court’s 8 direction to obtain clarification form Dr. Musicant regarding the support for his opinion and his 9 illegible treatment notes, and instead issued the same explanation for discounting this opinion as 10 11 he gave in the 2013 decision. Therefore, this determination of weight was error. 12 Dr. Musicant opined, inter alia, that Plaintiff has the following functional limitations: she 13 could lift and/or carry 10 pounds occasionally and 5 pounds frequently (stating pain with lifting 14 and trouble with side to side movement as reasons to support this finding); she could walk two to 15 four hours total in an 8-hour day and 30 minutes at a time; she could sit for 4 hours total in an 8-16 17 hour day and 15 minutes at a time (stating low back problems as support for his opinion); she can 18 occasionally climb, stoop, crouch, kneel; she can frequently balance; she can never crawl; 19 reaching, handling, feeling, and pushing/pulling are limited due to numb hands. T 389-91. 20 In her brief to the Court in 2015, Plaintiff argued that the ALJ erred in discounting the 21 opinion of Dr. Musicant by vaguely stating, "[a]s Dr. Musicant failed to cite objective medical 22 23 evidence in completion of the form concerning functional capacity, his opinion lacks this vital 24 component of credibility for medical conclusions." T 24. Plaintiff argued that Dr. Musicant’s 25 opinion was consistent with the record, and he was not the only physician to render a limiting 26 opinion, as is demonstrated in the preceding section. Dr. Columb’s opinions were fairly 27 28 consistent with those of Dr. Musicant, as both opined to limiting abilities regarding ambulation. 23 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 23 of 27 1 Dr. Musicant opined that Plaintiff could walk/stand two to four hours total in an 8-hour day and 2 30 minutes at a time whereas Dr. Columb opined something similar, that she can stand 30 3 minutes at one time. T 389-91, 456. 4 5 Dr. Musicant’s assessment was both difficult to read and ambiguous. He made several 6 notations where asked to support his assessment with the medical findings, most of which are 7 illegible. Moreover, his legible statements can either be construed as Plaintiff’s subjective 8 complaints or as medical observations upon examination. Because of the ambiguity, the ALJ 9 should have developed the record by making an inquiry. Tonapetyan v. Halter, 242 F.3d 1144, 10 11 1150 (9th Cir. 2001). 12 In the Court’s 2015 decision on this matter, Judge Beistline indicated that "the Court 13 agrees with [Plainitff] that Dr. Musicant’s comments are illegible," and directed that "upon 14 remand, the ALJ should get clarification from Dr. Musicant regarding the illegible forms and 15 patient records before denying disability based on Dr. Musicant’s opinions." T 635. Despite this 16 17 direction, the ALJ once again rejected Dr. Musicant’s opinion as unsupported by the record, 18 without obtaining any clarification regarding the illegible treatment notes which could 19 reasonably provide substantial support for the opinion. T 524-25. 20 Consistent with this Court’s 2015 ruling, the law is clear that "The ALJ has an 21 22 independent duty to fully and fairly develop the record and to assure that the claimant's interests 23 are considered." Thomas v. Astrue, 2013 U.S. Dist. LEXIS 4977, *15 (D. Alaska 2013)."A 24 further duty to develop the record is triggered when there is ambiguous evidence or when the 25 record is inadequate to allow for proper evaluation of the evidence." Thomas at *15-*16; see 26 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). Ambiguous evidence triggers the 27 28 ALJ’s duty to conduct an inquiry, which the ALJ may discharge in several ways, including 24 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 24 of 27 1 submitting questions to the claimant’s physicians. Tonapetyan at 1150, citing Smolen v. Chater, 2 80 F.3d 1273, at 1288 (9th Cir. 1996); Armstrong v. Commissioner of Soc. Sec. Admin., 160 F.3d 3 587, 590 (9th Cir. 1998) and Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1999). 4 5 Thus, the ALJ had a duty to obtain further clarification regarding the basis for Dr. 6 Musicant’s opinion before dismissing it, especially given its consistency with the other evidence 7 of record and Dr. Musicant’s role as a treating source. Because the ALJ did not develop the 8 record, as directed by this Court, in order to properly evaluate the evidence, this matter should be 9 remanded. 10 11 2. The ALJ’s Step 4 determination is unsupported by substantial evidence because the ALJ erred in relying on vocational testimony elicited in response to an 12 incomplete hypothetical question. 13 The ALJ relied on vocational testimony to determine that Plaintiff is capable of 14 performing past relevant work as an ordering customer service worker and department manager. 15 T 528, 593-94. However, the ALJ’s Step 4 determination is unsupported by substantial evidence 16 17 because the ALJ erred in relying on vocational testimony elicited in response to an incomplete 18 hypothetical question. 19 "If the record does not support the assumptions in the hypothetical, the vocational 20 expert’s opinion has no evidentiary value." Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001). 21 22 An ALJ's "hypothetical questions posed to the vocational expert must set out all the limitations 23 and restrictions of the particular claimant …." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 24 1988). Here, due to the ALJ’s errors in determining Plaintiff’s RFC, the hypothetical question 25 asked to the vocational witness was incomplete. 26 Because the ALJ relied on vocational testimony elicited in response to an incomplete 27 28 hypothetical question, the finding at Step 4 is unsupported by substantial evidence, and this 25 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 25 of 27 1 matter should be remanded for further proceedings, including a de novo hearing and decision. 2 3 CONCLUSION 4 For the foregoing reasons, it is respectfully requested that Plaintiff’s motion for summary 5 judgment be granted, that the Commissioner’s decision be vacated, and that this matter be 6 remanded for further administrative proceedings. 7 8 Respectfully submitted, 9/s/Howard Olinsky HOWARD OLINSKY 10 Attorney for Plaintiff 11 Pro hac vice Olinsky Law Group 12 One Park Place 300 South State Street 13 Syracuse, New York 13202 14 Telephone: (315) 701-5780 Fax: (315) 701-5781 15 holinsky@windisability.com 16 17 18 19 20 21 22 23 24 25 26 27 28 26 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 26 of 27 1 2 CERTIFICATE OF SERVICE 3 This is to certify that I have this day served counsel for the Defendant with Plaintiff’s 4 Memorandum of Law by electronically filing the foregoing with the Clerk of the Court by using 5 the CM/ECF system which will send electronic notification of such filing to: 6 KAREN L. LOEFFLER 7 United States Attorney 8 9 LEISA A. WOLF Special Assistant United States Attorney 10 Office of the General Counsel 11 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 12 Seattle, WA 98104-7075 Telephone: (206) 615-3621 13 Fax: (206) 615-2531 14 leisa.wolf@ssa.gov 15 This 10th day of May, 2017. 16 17/s/Howard Olinsky 18 HOWARD OLINSKY Attorney for Plaintiff 19 Pro hac vice 20 Olinsky Law Group One Park Place 21 300 South State Street Syracuse, New York 13202 22 Telephone: (315) 701-5780 23 Fax: (315) 701-5781 holinsky@windisability.com 24 25 26 27 28 27 Case 1:16-cv-00017-SLG Document 19 Filed 05/10/17 Page 27 of 27

RESPONSE in Opposition re [19] MOTION to Remand to Social Security filed by Nancy A. Berryhill.

1 BRYAN SCHRODER 2 Acting United States Attorney RICHARD L. POMEROY 3 Assistant United States Attorney Federal Bldg & U.S. Courthouse 4 222 W 7th Ave, #9, Rm C-253 Anchorage, AK 99513-7676 5 Telephone: (907) 271-5071 Fax: (907) 271-2344 6 richard.pomeroy@usdoj.gov 7 LEISA A. WOLF Special Assistant United States Attorney 8 Office of the General Counsel Social Security Administration 9 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 10 Telephone (206) 615-3621 Fax (206) 615-2531 11 leisa.wolf@ssa.gov 12 Of Attorneys for Defendant 13 IN THE UNITED STATES DISTRICT COURT FOR THE 14 DISTRICT OF ALASKA 15 SUSAN E. SENE, Case No. 1:16-cv-00017-SLG 16 Plaintiff, 17 DEFENDANT’S RESPONSIVE BRIEF IN vs. OPPOSITION TO PLAINTIFF’S MOTION 18 NANCY A. BERRYHILL, 19 Acting Commissioner of Social Security, 20 Defendant. INTRODUCTION 21 In this appeal, Plaintiff Susan Sene (hereinafter "Sene"), challenges the decision of Defendant 22 finding her not disabled within the meaning of the Social Security Act (the Act). Sene argues the 23 24 Page 1 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 1 of 18 1 administrative law judge (ALJ) erred by failing to comply with the remand order from the 2 Appeals Council and improperly considered medical source opinions from treating providers. 3 PROCEDURAL POSTURE 4 In October 2012, Sene filed applications for a period of disability and disability insurance 5 benefits and for Supplemental Security Income. Tr. 510. In both claims, she alleged disability 6 beginning April 14, 2009. Tr. 510. An ALJ issued an unfavorable decision on January 14, 2012, 7 which was appealed after the Appeals Council denied review. Tr. 510. On March 6, 2015, the 8 United States District Court for Alaska issued an Order of Remand directing the ALJ to: 9 1) Give appropriate weight to the opinions of the treating physicians, Drs. Columb 10 and Musicant, including opinions rendered after the date of the last ALJ hearing; 2) Discuss and consider the potentially significant side effects of prescribed 11 narcotics to control pain; 3) Support any credibility findings with substantial evidence, rather than speculation, 12 to include questioning Claimant thoroughly on issues that reflect her credibility; 4) Provide the vocational expert with a hypothetical that accurately represents 13 Claimant’s limitations; 5) Obtain clarification of Dr. Musicant’s illegible records; and 14 6) Consider a formal "Functional Capacity Evaluation" of the Claimant 15 Tr. 642-643. 16 On April 29, 2015, the Appeals Council issued its Remand Order and vacated the prior 17 ALJ decision. Tr. 645-649. The Appeals Council directed the ALJ on remand to comply with the 18 district court’s order. Tr. 647. 19 On May 4, 2016, Sene appeared for a remand hearing. Tr. 538-599. Robert Sklaroff, 20 M.D., a medical expert, and William Weiss, a vocational expert, also testified. Id. At the 21 hearing, the ALJ admitted 700 pages of supplemental evidence in several new exhibits, including 22 medical exhibits 20F through 42F. Tr. 496-1196. On September 19, 2016, the ALJ issued an 23 unfavorable decision finding Sene could perform her past relevant work as an "Ordering 24 Page 2 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 2 of 18 1 Customer Service Worker and Department Manager." Tr. 507-537. Sene timely filed a complaint 2 in this Court. Dkt. 1. 3 SUMMARY OF THE ARGUMENT 4 Because Sene provided significant new information at the most recent evidentiary hearing, 5 the ALJ properly considered that information in reassessing the medical opinions and the RFC 6 finding. Neither the law of the case doctrine nor the rule of mandate restricts an ALJ from 7 considering pertinent new evidence when a case is remanded for further proceedings. The ALJ, 8 after considering the expanded period under review, the supplemented record, and additional 9 testimony, reasonably formulated a new RFC. 10 The ALJ’s actions did not exceed the scope of the remand order. Reevaluation of the 11 medical evidence and the RFC was proper and necessary because the prior evidence had been 12 substantially supplemented. Thus, the ALJ did not violate the law of the case doctrine because 13 the evidence on remand was substantially different. Nor did the ALJ violate the rule of mandate 14 doctrine because this Court had not decided the issue of Sene’s RFC, and the remand orders did 15 not foreclose reevaluating the medical opinions or Sene’s RFC. 16 Based on Sene’s new testimony and 700 pages of new evidence, including additional 17 testing and additional vocational expert testimony, the ALJ properly reevaluated Sene’s RFC, 18 continued the sequential evaluation process, and found Sene was able to return to her past 19 relevant work as an Ordering Customer Service Worker and Department Manager. 20 ARGUMENT 21 The United States Court of Appeals for the Ninth Circuit recently considered the law of 22 the case doctrine and the rule of mandate in the context of Social Security disability 23 24 Page 3 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 3 of 18 1 determinations. Stacy v. Colvin, 825 F.3d 563, 563 (9th Cir. 2016). Neither doctrine precluded 2 the ALJ in this case from reexamining Sene’s RFC. 3 Unless the evidence compelled the ALJ to reach any different findings or a different 4 decision, this Court should affirm the ALJ’s decision. 42 U.S.C. §405(g); I.N.S. v. Elias-Zacarias, 5 502 U.S. 478, 481 n.1 (1992) (interpreting the substantial evidence standard to mean that a 6 finding must be upheld unless the evidence compels a different conclusion). To be entitled to 7 reversal, Sene has the burden of showing both error and actual prejudice. Ludwig v. Astrue, 681 8 F.3d 1047, 1054 (9th Cir. 2012). Here, the evidence did not compel the ALJ to make different 9 findings and Sene shows no prejudicial error. Therefore, the Court should affirm the ALJ’s 10 decision. 11 I. The ALJ did not exceed the scope of the remand order of this Court and the Appeals 12 Council. 13 This Court directed the ALJ to hold a new hearing and issue a new decision. Tr. 642-643. 14 The ALJ was directed to consider medical opinions and provide the vocational expert a complete 15 vocational hypothetical to aid the step-four determination. Tr. 642-643. The Appeals Council 16 vacated the prior administrative decision, and directed the ALJ to comply with this Court’s Order. 17 Tr. 645-649. 18 The remand order’s direction to the ALJ considered in the broader context of the case and 19 the new evidence, should not preclude the continued application of the sequential evaluation 20 process. The ALJ held a new hearing with Sene’s supplemental testimony, 700 additional pages 21 of evidence, supplemental with medical expert and vocational expert testimony, and presented 22 hypothetical questions that reflected the specific capacity/limitations established by the record as 23 a whole. Pursuant to the remand order, the ALJ properly reconsidered the medical opinions and 24 Page 4 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 4 of 18 1 then the residual functional capacity relevant to the expanded period under review and with 2 consideration of the supplemental evidence and testimony. 3 Nothing in the remand order precluded the ALJ from redetermining Sene’s RFC, 4 particularly where it concluded on remand that the expanded relevant period and the considerable 5 amount of supplemental evidence and testimony supported such a finding. With such expansion 6 of the record, a reevaluation of Sene’s RFC was necessary. After updating the record on remand, 7 the ALJ was required to follow the normal sequential process, including assessing the RFC before 8 steps four and five. 9 After the ALJ evaluated Sene’s supplemental testimony and the expanded period, he 10 reevaluated Sene’s RFC, and with the aid of supplemental medical and vocational testimony, 11 determined Sene’s ability to perform other work at step four. Tr. 528, 586-598. Accordingly, the 12 ALJ did not exceed the scope of the remand orders of this Court. 13 II. The Commissioner did not violate the law of the case doctrine. 14 The law of the case doctrine "is concerned primarily with efficiency, and should not be 15 applied when the evidence on remand is substantially different, when the controlling law has 16 changed, or when applying the doctrine would be unjust." Stacy, 825 F.3d at 567. 17 The law of the case doctrine should not be applied in this case because the evidence on 18 remand was substantially different. The ALJ did not impermissibly disregard the District Court’s 19 remand order by reevaluating Sene’s RFC or the medical opinions. The medical evidence 20 regarding Sene’s abilities was different than relied upon by the first ALJ. This substantially 21 different evidence changed the finding about Sene’s residual functional capacity finding. "The 22 RFC assessment must always consider and address medical source opinions." Social Security 23 Ruling (SSR) 96-8p, available at 1996 WL 374184, at *7. The ALJ properly re-determined 24 Page 5 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 5 of 18 1 Sene’s RFC and proceeded through step four of the sequential evaluation process after hearing 2 new testimony and reviewing more than 700 pages of new evidence, including new medical 3 opinions. 4 III. The Commissioner did not violate the rule of mandate doctrine. 5 While a district court cannot vary or examine a mandate for any purpose other than 6 executing it, the rule of mandate allows a lower court to decide anything not foreclosed by the 7 mandate. Stacy, 825 F.3d at 568 (citing Hall v. City of Los Angeles, 697 F.3d 1059, 1067 8 (9th Cir. 2012)). "[A]ny issue not expressly or impliedly disposed of on appeal [is] available for 9 consideration by the trial court on remand." Id. (quoting Odima v. Westin Tucson Hotel, 53 F.3d 10 1484, 1497 (9th Cir. 1995) (second brackets in original). Here, remand orders did not preclude a 11 redetermination of Sene’s RFC. Because the orders directed the ALJ to update the record, 12 recontact Dr. Musicant (Tr. 788, 790), reconsider medical opinions, and develop hypothetical 13 questions that reflected the specific capacity/limitations established by the newly developed 14 record as a whole, reevaluating the RFC was appropriate because the record was significantly 15 changed with the receipt of the supplemental testimony and substantial additional evidence. 16 In the remand order, this Court did not decide the issue of whether substantial evidence 17 supported the prior ALJ’s RFC. The Appeals Council remand order vacated the prior decision 18 and directed a new hearing, allowing Sene to raise new issues and requiring the ALJ present to 19 the vocational expert hypothetical questions reflecting the specific capacity/limitations 20 established by the record as a whole when further evaluating step four of the disability analysis. 21 Submission of substantial new evidence and new testimony dictated a reassessment of the RFC. 22 Thus, the remand orders did not foreclose a reassessment of the RFC, particularly with new 23 medical opinions in the record. 24 Page 6 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 6 of 18 1 Claimants are permitted to raise new arguments and bring in additional evidence after 2 remand by a federal court: "Any issues relating to your claim may be considered by the 3 administrative law judge whether or not they were raised in the administrative proceedings 4 leading to the final decision in your case." 20 C.F.R. §§ 404.983, 416.1483. When a court 5 remands a Social Security case, the ALJ generally has to decide whether the claimant was 6 disabled at any time through the date of her new hearing decision. See Hearings, Appeals and 7 Litigation Law (HALLEX)1 manual I-2-8-18A (available at 8 http://www.ssa.gov/OP_Home/hallex/I-02/I-2-8-18.html). This means a remand typically opens 9 up a significant period that has not been adjudicated before, as it was in this case. The ALJ was 10 required to reevaluate Sene’s RFC and continue with the standard sequential process upon 11 remand. After the admission of a new claim, new Sene testimony, new expert testimony and 700 12 pages of documentary evidence, it is not surprising that a different RFC is the result. 13 IV. The ALJ’s Reasons For Discounting the opinions of Tracy Columb, M.D., and David 14 Musicant, DO, Were Specific and Legitimate. 15 The record contained conflicting opinions from physicians concerning the severity of 16 limitations resulting from Sene’s impairments. Tr. 524-527. Where conflicting evidence exists, 17 the Act, the Commissioner’s regulations, and agency policy require the ALJ to consider, evaluate, 18 and explain the weight he gave the opinions of medical professionals who saw Sene or reviewed 19 her records in a professional capacity. 42 U.S.C. § 405(b)(1); 20 C.F.R. §§ 404.1527(b) (d) & (e); 20 SSR 06-03p, available at 2006 WL 2329939. An ALJ must provide specific, legitimate reasons to 21 22 1 The HALLEX is not published in the Federal Register or the Code of Federal Regulations, and, 23 for that reason, does not carry the force and effect of law. Lockwood v. Comm’r Soc. Sec., 616 F.3d 1068, 1072 (9th Cir. 2010). Nevertheless, the Commissioner expects ALJs to abide by the 24 Page 7 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 7 of 18 1 reject contradicted opinions of licensed physicians and psychologists. Turner v. Comm’r of Soc. 2 Sec., 613 F.3d 1217, 1222 (9th Cir. 2010); Bayliss, 427 F.3d at 1218. An ALJ can comply with 3 this mandate by providing a detailed and thorough summary of the facts and conflicting clinical 4 evidence, stating his interpretation of the evidence, and making findings. Tommasetti v. Astrue, 5 533 F.3d 1035, 1041 (9th Cir. 2008). Sene demonstrates no prejudicial error in the ALJ’s 6 evaluation of the opinions of Dr. Columb and Dr. Musicant. 7 A. Dr. Columb 8 The ALJ considered six medical opinions completed by Dr. Columb in support of Sene’s 9 application for benefits. Tr. 525-526, citing Tr. 455-457, 458-459, 460-461, 462-463, 490-495, 10 497. For instance, in March 2012 Dr. Columb completed a form entitled "Medical Statement 11 Regarding Heart Failure" in which she indicated Sene was able to: 12 work no more than 2 hours per day; stand for no longer than 30 minutes at a time; 13 sit for no longer than 30 minutes at a time; lift 10 pounds occasionally and no weight frequently; and would need to elevate her legs frequently during an 8-hour 14 workday. 15 Tr. 456. In support of her opinion, Dr. Columb listed symptoms related to heart failure. Tr. 455. 16 In not assigning weight to this opinion, the ALJ noted that Sene had not been diagnosed with 17 heart failure. Tr. 525. Further, as Dr. Columb herself noted, the most recent echocardiogram 18 showed normal ejection fraction with no regional wall motion abnormalities. Moreover, with the 19 exception of peripheral edema, Dr. Columb’s treatment notes failed to reveal related examination 20 findings. A discrepancy between a physician’s medical opinion and the source’s own notes is a 21 clear and convincing reason for not relying on the doctor’s opinion regarding a claimant’s 22 23 HALLEX because it reflects the programmatic policy of the Commissioner and interprets Agency regulations. 24 Page 8 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 8 of 18 1 functional limitations. Bayliss, 427 F.3d at 1216. The ALJ additionally noted that the only 2 significant findings documented within Dr. Columb’s notes are lower extremity edema rated 1+ 3 (mild) to 2+ (moderate). Tr. 433-454, 473-489, 502-506. 4 The ALJ also considered a form entitled, "Medical statement regarding physical and mental 5 abilities and limitations for Social Security disability claim" in which Dr. Columb indicated that 6 Sene had similar limitations to those noted in the previous form, as well as the following 7 additional limitations, such as Sene should: never bend; occasional stoop, raise left arm over 8 shoulder level, and raise right arm over shoulder level; and need to elevate her legs every 30 9 minutes during an 8-hour workday. Tr. 458-459. In not assigning weight to this opinion, the ALJ 10 noted that Dr. Columb did not provide an explanation as to what evidence she relied upon in 11 rendering this opinion. Tr. 525. Neither Dr. Columb’s treatment notes nor Sene’s treatment 12 records in general revealed an impairment that would reasonably limit her ability to reach above 13 shoulder level. Tr. 525. Moreover, neither the radiographic evidence related to Sene’s lumbar 14 spine condition, characterized as at most moderate, nor Dr. Columb’s recorded examination 15 findings (no limitations on lumbar range of motion) would explain a complete inability to bend. 16 Tr. 525. Dr. Columb indicated in 2012 chart notes that compression stockings would help to ease 17 symptoms. Tr. 436. Furthermore, the medical expert, Dr. Sklaroff, testified that the use of 18 compression stockings would reasonably manage Sene’s edema without the need to elevate her 19 legs. Tr. 525, 558. 20 The ALJ considered a form completed by Dr. Columb in which she indicated Sene 21 experienced moderate to severe hip pain resulting in an inability to ambulate effectively. Tr. 460. 22 In not assigning weight to this opinion, the ALJ noted that, "again, Dr. Columb failed to cite 23 objective findings to support her opinion." Tr. 526. For instance, the ALJ considered that Dr. 24 Page 9 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 9 of 18 1 Columb’s treatment notes did not reveal persistent complaints of hip pain or related examination 2 findings. Tr. 526, citing Tr. 433-454, 473-489, 502-506. The ALJ specifically noted that Dr. 3 Columb’s treatment notes "fail to reveal persistent gait disturbance, let alone an inability to 4 ambulate effectively." Id. 5 The ALJ also considered a form completed by Dr. Columb in which she indicated that Sene 6 experienced numerous symptoms related to her right knee impairment resulting in the previously 7 noted limitations on her ability to lift, carry, sit, stand, bend, stoop, balance, and climb as well as 8 resulting in the inability to ambulate effectively. Tr. 526, citing Tr. 462-463. However, the ALJ 9 noted that Dr. Columb did not provide an explanation as to what objective evidence she relied 10 upon in rendering her opinion. The ALJ noted that although Dr. Columb’s treatment records did 11 reveal documented clinical findings of "mild" laxity, knee effusion, crepitus, and limp, these 12 findings only appeared briefly prior to Sene’s second knee surgery. Tr. 526, citing Tr. 433-454, 13 473-489, 502-506. Moreover, the ALJ rationally noted that a "mild" limp is hardly evidence of 14 inability to ambulate effectively." Tr. 526. 15 The ALJ also considered an October 2012 form in which Dr. Columb indicated that Sene was 16 able to stand no longer than 1 to 2 hours at a time; sit for no more than 6 to 8 hours; rarely reach 17 above the shoulders, down to waist level, or down towards the floor; frequently carefully handle 18 objects and handle with the fingers; and lift and carry no more than 5 to 10 pounds. Tr. 490-492. 19 Dr. Columb further indicated that Sene has difficulty bending, squatting, and kneeling. Tr. 493. In 20 support of her opinion, Dr. Columb cited an April 2011 lumbar spine MRI. Tr. 490. However, the 21 ALJ noted that this MRI revealed no more than mild to at most moderate findings. Tr. 385. Dr. 22 Columb further indicated that Sene had bulging disks and radiculopathy. Tr. 490. While the 23 radiographic evidence did reveal disks bulge, there was no electro-diagnostic evidence of 24 Page 10 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 10 of 18 1 radiculopathy. Tr. 526. Further, Dr. Columb’s treatment records failed to reveal clinical findings 2 consistent with radiculopathy (e.g. abnormal lower extremity strength, sensation, or reflexes). Tr. 3 526. The ALJ also noted that Dr. Columb cited bilateral knee osteoarthritis, but while there was 4 ample evidence of right knee osteoarthritis, the medical evidence of record did not include 5 objective evidence of left knee osteoarthritis. Furthermore, Dr. Columb’s treatment notes did not 6 include persistent complaints of symptoms related to the left knee or consistent and significant 7 examination findings examination findings. Tr. 526, citing Tr. 433-454, 473-489, 502-506. Again, 8 the ALJ rationally concluded that the medical evidence of record "fails to reveal an impairment 9 that would limit the claimant’s ability to reach." Tr. 526. 10 The ALJ finally considered a notation contained in a March 2013 letter, in which Dr. Columb 11 essentially admitted that her opinion was based largely on Sene’s subjective reports of symptoms 12 and limitations, which the ALJ noted, were not consistent with the evidence as a whole. Tr. 526, 13 citing Tr. 497 ("Clinically the patient is able to walk in and out of the office but reports pain with 14 certain movements. I have to base my opinions on her reports of pain with activity and what she 15 can tolerate."). "If a treating provider’s opinions are based to a large extent on an applicant’s self-16 reports and not on clinical evidence, and the ALJ finds the applicant not credible, the ALJ may 17 discount the treating provider’s opinion." Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) 18 (internal quotation marks omitted). 19 Furthermore, the ALJ considered that the medical expert, Dr. Sklaroff, testified that Dr. 20 Columb’s opinions were not supported by objective evidence. Tr. 526. The consistency between 21 a medical opinion and the record as a whole is another indicator of the reliability. 20 C.F.R. §§ 22 404.1527(c)(4), 416.927(c)(4). Consequently, inconsistencies between a physician’s opinion and 23 the medical record are sufficient grounds to reject the opinion. See Tommasetti v. Astrue, 533 24 Page 11 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 11 of 18 1 F.3d 1035, 1041 (9th Cir. 2008) (finding "incongruity" between questionnaire responses and 2 medical records permitted ALJ to reject physician’s opinion). The ALJ appropriately considered 3 this factor, observing that the degree of limitation Dr. Columb endorsed was contradictory to the 4 objective evidence of record, the minimal objective clinical and diagnostic findings, as well as 5 reliance on subjective statements by Sene to Dr. Columb. 6 Thus, considering the above factors, the ALJ properly found that Dr. Columb’s opinions were 7 largely unsupported and were assigned "little weight." Tr. 525-526. In addition, Dr. Columb’s 8 opinions were largely check box form, offering bare conclusions about Sene’s capabilities. 9 Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012). The Ninth Circuit has "repeatedly held 10 that the ALJ may permissibly reject check-off reports that do not contain any explanation of the 11 bases of their conclusions." Id. (internal quotations and alterations omitted). 12 Finally, Sene asserts that the ALJ erred by giving greater weight to non-treating physicians 13 than was given to Dr. Columb. Pl.’s Br. at 20-22. Specifically, Sene asserts that the ALJ gave 14 "controlling weight" to the opinion of Dr. Sklaroff. Pl.’s Br. at 20. This is incorrect. Here, the ALJ 15 specifically stated that he gave "great weight" to the opinion of Dr. Sklaroff. Tr. 528. 16 In assigning great weight to Dr. Sklaroff’s opinion, the ALJ noted that the medical expert 17 "had the unique opportunity of being able to review all the medical evidence as it existed at the 18 time of the hearing." Tr. 526. Furthermore, the ALJ noted that Dr. Sklaroff gave a detailed 19 explanation of his reasoning with specific references to the evidence in support of his opinion. Tr. 20 526. As such, Dr. Sklaroff’s opinion was consistent with the evidence as a whole. 21 Sene points to evidence that she argues is consistent with her subjective complaints. Pl.’s Br. 22 at 17-23. However, the key question is not whether there is evidence that could support a finding 23 of disability, but "whether there is substantial evidence to support the Commissioner’s actual 24 Page 12 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 12 of 18 1 finding that claimant is not disabled." Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). 2 "Where evidence is susceptible to more than one rational interpretation, it is the 3 [Commissioner’s] conclusion that must be upheld." Burch, 400 F.3d at 679. 4 In sum, the ALJ’s evaluation of the medical opinion evidence was legally sufficient. Tr. 525-5 527. Although Sene might have interpreted the evidence differently, the ALJ’s interpretation was 6 rational and should be upheld. Burch, 400 F.3d at 680-81. 7 B. Dr. Musicant 8 The ALJ considered an April 2011 opinion from Dr. Musicant, in which he indicated that she 9 was able to: 10 lift no more than 10 pounds occasionally and 5 pounds frequently; stand for no 11 longer than 2 to 4 hours in an 8-hour day and no more than 30 minutes at a time; sit no longer than 4 hours in an 8-hour day and no more than 15 minutes at a time; 12 occasionally climb, stoop, crouch, and kneel; frequently balance; and never crawl. 13 Tr. 389-391, see also Tr. 1193-1195. Dr. Musicant further indicated that Sene had limited ability 14 to reach, handle, feel, and push/pull with the upper extremities and was limited in terms of 15 exposure to heights and vibration. Tr. 390. 16 In assigning little weight to this opinion, the ALJ noted that Dr. Musicant cited no 17 objective evidence to support his opinion. Tr. 524-525, citing Tr. 389-391. In fact, Dr. Musicant 18 cited no more than Sene’s subjective complaints, which were found to be less than credible by the 19 ALJ.2 Tr. 524. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (internal quotation marks 20 21 2 Sene has waived her challenge to the ALJ’s adverse credibility finding on appeal. See Carmickle v. Comm’r of the Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) ("We do 22 not address this finding because Carmickle failed to argue this issue with any specificity in his briefing.") (citing Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003) 23 (noting that we "ordinarily will not consider matters on appeal that are not specifically and distinctly argued in an appellant’s opening brief.")). 24 Page 13 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 13 of 18 1 omitted). In addition, the ALJ found that the medical evidence of record included little objective 2 or clinical evidence related to Sene’s right hand or wrist and "absolutely none related to [her] left 3 hand." Tr. 524. Further, the ALJ found that such limitations on her ability to lift and stand, as well 4 as the postural limitations found in Dr. Musicant’s opinion, were wholly out of proportion to the 5 objective evidence. Tr. 525. Moreover, a review of Dr. Musicant’s treatment notes revealed few 6 abnormal examination findings and the few findings within his treatment notes "would not begin 7 to explain such extreme limitations." Tr. 525. For instance, Dr. Musicant discharged Sene from 8 his care, noting: 9 No operative management is planned or indicated. The source of her right lower 10 extremity pain remains elusive, but does not emanate from her spine. I have discharge this patient from my care today. 11 Tr. 387. The ALJ also noted that the medical evidence of record included several references to 12 Sene traveling between Arizona, Alaska, Illinois, and Florida. Tr. 525. Plaintiff’s activities that 13 conflict with a physician’s opinion of limitations is a legitimate basis for the ALJ to consider in 14 determining the weight that physician’s opinion deserves. Morgan, 169 F.3d at 601-602; 15 Magallanes v. Bowen, 881 F.2d 747, 754 (9th Cir. 1989). The ALJ reasoned that Dr. Musicant’s 16 opinion regarding Sene’s ability to sit "is particularly incredible." Tr. 525. 17 Considering these factors, the ALJ properly assigned Dr. Musicant’s check box opinion little 18 weight. Tr. 525. Molina, 674 F.3d at 1111. The Ninth Circuit has "repeatedly held that the ALJ 19 may permissibly reject check-off reports that do not contain any explanation of the bases of their 20 conclusions." Id. Here, Dr. Musicant’s opinion was conclusory, providing very little explanation 21 of the evidence relied on in forming that opinion. An ALJ may discredit physicians’ opinions that 22 are unsupported by the record as a whole. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 23 1195 (9th Cir. 2004). The ALJ noted that Dr. Musicant did not document positive objective 24 Page 14 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 14 of 18 1 clinical or diagnostic findings to support the functional assessment. These findings were 2 reasonable. 3 Plaintiff next suggests that the ALJ did not comply with the court’s remand order to fully 4 develop the record as to Dr. Musicant’s illegible medical notes. Pl.’s Br. at 24. This is not 5 accurate. In a Report of Contact form completed by the hearing office, dated May 2016, the 6 exhibit records that: 7 At Judge PTH’s [Hebda] request, I tracked down Dr. David L. Musicant to the 8 office of Arizona Medical Services. I spoke with Phillie regarding the issue of indecipherable notation on medical records. She stated that if I fax them to her, 9 she can get them in front of the doctor either today or Friday (his next workday at that office). I faxed the records to the number she provided (520-573-5822). 10 11 Tr. 788. In a letter to counsel dated August 11, 2016, the ALJ notified counsel that he had: 12 I have secured additional evidence that I propose to enter into the record. Please log into http://ssa.gov/ar/to view the new proposed exhibits. 13 Medical Assessment of Ability To Do Work-Related Activities (Physical); Dr. Musicant. 14 Tr. 790. This exhibit was admitted into the record at Tr. 1193-1195 (Exhibit 42F) and is 15 a duplicate of Exhibit 8F with additional notations from Dr. Musicant. This is the best 16 evidence available concerning Dr. Musicant’s notations. The ALJ properly complied 17 with the remand order, as discussed in greater detail above, when the ALJ fully and 18 fairly developed the record. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 19 V. The ALJ’s Step Four Finding Was Supported by Substantial Evidence. 20 At step four of the sequential evaluation process, the Commissioner must determine 21 whether a claimant’s impairments prevent her from doing her past relevant work. 20 C.F.R. §§ 22 404.1520(f), 416.920(f). To make this determination, the Commissioner must compare the 23 residual functional capacity assessment to the physical and mental demands of past relevant work 24 Page 15 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 15 of 18 1 (id.; SSR 82–62, available at 1982 WL 31386, at *2), as actually performed or as ordinarily 2 required by employers in the national economy. SSR 82-61, available at 1982 WL 31387, at *1-2. 3 The claimant carries the burden of proof at step four. Carmickle v. Comm’r Soc. Sec. Admin, 533 4 F.3d 1155, 1166 (9th Cir. 2008) (citation omitted). 5 In determining whether a claimant can perform her past relevant work, the Commissioner 6 may use the services of vocational experts and resources such as The Dictionary of Occupational 7 Titles (DOT). 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2). Vocational experts may be needed to 8 resolve complex vocational issues. SSR 00-4p, available at 2000 WL 1898704, at *2. "A VE’s 9 recognized expertise provides the necessary foundation for his or her testimony. Thus, no 10 additional foundation is required." Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). 11 Here, the ALJ fulfilled his duty at step four. He considered her past relevant job as a 12 "Ordering Customer Service Worker and Department Manager." Tr. 528. A vocational expert 13 testified at Sene’s remand hearing in May 2016. Tr. 538-599. On the record at the hearing, the 14 ALJ ensured that the expert’s statement of qualifications in the record was accurate, and asked 15 Sene’s representative if he had any objection to the expert’s qualifications. Tr. 541. Counsel had 16 none. Tr. 541. 17 The ALJ asked the vocational expert to classify Sene’s work. Tr. 588-589. The ALJ then 18 posed a hypothetical question to the vocational expert that corresponded to the RFC assessment. 19 He asked the expert whether a person could perform this job if she had the RFC to perform 20 medium work, with non-exertional limitations delineated. Tr. 592-593. The expert responded 21 affirmatively to the job. Tr. 589. The ALJ accepted the vocational expert’s testimony and found 22 Sene not disabled at step four of the sequential evaluation process. Tr. 528. No more was 23 required. 24 Page 16 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 16 of 18 1 Sene failed to meet her burden at step four. Because the ALJ’s step four finding was 2 supported by substantial evidence, it should be affirmed. 3 CONCLUSION 4 The ALJ complied with the remand order. Reevaluating the RFC to account for the 5 significantly expanded record was necessary and appropriate. As the ALJ applied correct the legal 6 standards and supported his decision with substantial evidence, the Commissioner respectfully 7 requests that the decision should be affirmed. 42 U.S.C. § 405(g). 8 DATED this 8th day of June 2017. 9 Respectfully submitted, 10 BRYAN SCHRODER 11 Acting United States Attorney 12 RICHARD L. POMEROY Assistant United States Attorney 13 MATHEW W. PILE 14 Acting Regional Chief Counsel, Seattle, Region X 15 s/Leisa A. Wolf LEISA A. WOLF 16 Special Assistant United States Attorney Office of the General Counsel 17 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 18 Seattle, WA 98104-7075 Telephone (206) 615-3621 19 Fax (206) 615-2531 leisa.wolf@ssa.gov 20 21 22 23 24 Page 17 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 17 of 18 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Defendant’s Responsive Brief In Opposition To 3 Plaintiff’s Motion was filed with the Clerk of the Court on June 8, 2017, using the CM/ECF 4 system, which will send notification of such filing to the following: Howard Olinsky. 5 6 s/Leisa A. Wolf LEISA A. WOLF 7 Special Assistant U.S. Attorney Office of the General Counsel 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 18 DEFENDANT’S RESPONSIVE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION-[1:16-cv-00017-SLG] Case 1:16-cv-00017-SLG Document 20 Filed 06/08/17 Page 18 of 18

Consent MOTION for Extension of Time to File Response/Reply by Susan Eleanor Sene.

UNITED STATES DISTRICT COURT DISTRICT OF ALASKA SUSAN ELEANOR SENE, Plaintiff, CIVIL ACTION NO. 1:16-cv-00017 (SLG)-v-NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. Through her attorneys, Susan Sene moves for an extension of time of one day, from June 22, 2017 to June 23, 2017, to file her reply brief in this Social Security disability appeal. The reason for this request, filed June 23, 2017, is a calendaring error by the undersigned’s office, which noted today as the due date for Plaintiff’s reply brief. Counsel contacted agency counsel and this Motion is unopposed. A proposed Order is attached hereto for the Court’s consideration This 23rd day of June 2017. s/Howard Olinsky Attorney for Plaintiff Pro hac vice Olinsky Law Group One Park Place 300 South State Street Syracuse, New York 13202 Telephone: (315) 701-5780 Fax: (315) 701-5781 holinsky@windisability.com Case 1:16-cv-00017-SLG Document 21 Filed 06/23/17 Page 1 of 2 Certificate of Service I certify that this Unopposed Motion for extension of time was served this date on counterpart counsel by CM/ECF system, which distributes Notice of Electronic Filing to Registered Users./s/Howard Olinsky Case 1:16-cv-00017-SLG Document 21 Filed 06/23/17 Page 2 of 2

Proposed Order

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA SUSAN ELEANOR SENE, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. Case No. 1:16-cv-00017-SLG ORDER RE MOTION FOR EXTENSION Upon consideration of Plaintiff’s Consent Motion for Extension of Time (Docket 20), the Court hereby GRANTS the motion. IT IS ORDERED that Plaintiff shall file her reply brief in this matter on or before June 23, 2017. DATED this______ day of June, 2017 at Anchorage, Alaska. Sharon L. Gleason UNITED STATES DISTRICT JUDGE Case 1:16-cv-00017-SLG Document 21-1 Filed 06/23/17 Page 1 of 1

REPLY to Response to Motion re [19] MOTION to Remand to Social Security filed by Susan Eleanor Sene.

1 HOWARD OLINSKY Attorney for Plaintiff 2 Pro hac vice 3 Olinsky Law Group One Park Place 4 300 South State Street 5 Syracuse, New York 13202 Telephone: (315) 701-5780 6 Fax: (315) 701-5781 holinsky@windisability.com 7 8 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF ALASKA 11 12 SUSAN ELEANOR SENE, 13 Plaintiff, CIVIL ACTION NO. 1:16-cv-00017 14 (SLG)-v-15 16 NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, 17 Defendant. 18-----------------------------------------------------------19 PLAINTIFF’S REPLY MEMORANDUM 20 Plaintiff reasserts and relies upon the arguments set forth in Plaintiff’s Memorandum 21 22 ("Dkt. No. 19"), and replies to the following particular point raised in Defendant’s Responsive 23 Brief ("Dkt. No. 20"). 24 1. The ALJ erred in weighing and evaluating the medical opinion evidence, and failed 25 to accord proper weight to the opinion of Plaintiff’s treating physician, Dr. Columb, and affording de-facto controlling weight to the opinion of non-examining physician, 26 Dr. Sklaroff. 27 Defendant argues that the ALJ had the prerogative to reevaluate Plaintiff’s RFC upon 28 1 Case 1:16-cv-00017-SLG Document 22 Filed 06/23/17 Page 1 of 6 1 remand, as the prior ALJ decision was vacated. Dkt. No. 20 at 5-7. Contrary to Defendant’s 2 implications, Plaintiff does not argue that the ALJ erred by the sole act of reevaluating Plaintiff’s 3 RFC, as this is exactly what Plaintiff sought in her previous appeal to this Court. Plaintiff’s 4 5 position then, as now, is that the RFC is not supported by substantial evidence due to the ALJ’s 6 errors in weighing the opinion evidence. 7 Defendant reiterates the ALJ’s reasoning for rejecting Dr. Columb’s opinion, but the fact 8 remains that Dr. Columb’s opinion is supported by her longitudinal treatment relationship and 9 the evidence of record. Indeed, despite this Court’s finding that the ALJ failed to follow the 10 11 regulations and unreasonably rejected Dr. Columb’s opinion, the ALJ once again rejected Dr. 12 Columb’s opinions based on her failure "to cite objective findings to support her opinion," which 13 is the exact same reasoning cited by the ALJ in the 2013 decision. T 526. The ALJ merely cited 14 to additional "absent" clinical findings, in an attempt to detract from the positive clinical findings 15 that support Dr. Columb’s opinion, as found by this Court. T 526. However, the absence of 16 17 certain examination findings is irrelevant to whether the present examination findings 18 sufficiently support the opined limitations, which this Court held are consistent with the record 19 as a whole and Dr. Columb’s treatment notes. The treatment notes which the ALJ attempts to 20 pull additional benign findings from to support a rejection of the opinion are unchanged since 21 22 this Court’s previous review, and this Court should again find that the records are supportive of 23 Dr. Columb’s opinion. Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016). 24 The evidence on remand was not substantially different than the record before this Court 25 on Plaintiff’s previous appeal, and the ALJ should have accorded greater weight to Dr. Columb’s 26 opinion, as directed by this Court. Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir. 1991).The 27 28 Court detailed the significant support in the record for Dr. Columb’s opinion, and concluded that 2 Case 1:16-cv-00017-SLG Document 22 Filed 06/23/17 Page 2 of 6 1 "the ALJ unreasonably failed to give Dr. Columb controlling weight." T 634. Dr. Columb’s 2 opinion, supporting explanation, and treatment notes are unchanged, and the expanded record 3 remains consistent with her opinion. The additional assessments contained in the file are the 4 5 opinions of Dr. Abbott and the functional capacity assessment completed through testing at 6 Oceanside Therapy Center. Both of these opinions were rendered after detailed examinations, 7 and describe Plaintiff’s functional capacity as sedentary or less, with significant limitations 8 described based upon objective examinations and testing. Thus, the evidence both before and 9 after this Court’s decision in 2015 shows that Plaintiff has the capacity for sedentary work at 10 11 best, and there are no significant changes to render application of the law of the case doctrine 12 inappropriate. Indeed, the only evidence in the file consistent with the RFC is the testimony of 13 medical expert Dr. Sklaroff, which Defendant argues was rightfully accorded great weight in this 14 matter. Dkt. No. 20 at 12-13. 15 The ALJ’s reliance upon Dr. Sklaroff’s opinion was improper, as the ALJ essentially 16 17 afforded his opinion controlling weight despite the fact that he was not a treating source, and his 18 opinion was contradicted by the opinions of the treating physicians in the record. 20 C.F.R. § 19 404.1527(c); Ritchotte v. Astrue, 281 F. App'x 757, 759 (9th Cir. 2008) (Remanding where "the 20 ALJ erroneously declined to give controlling weight to the treating physician's assessment, he 21 22 instead based his RFC determination upon the reports of non-examining state agency 23 physicians.") Defendant argues that the ALJ accorded only "great weight" to Sklaroff’s opinion, 24 not controlling weight. However, regardless of the term used to describe the weight accorded, it 25 is clear that Dr. Sklaroff’s opinion was given controlling weight over all other evidence of 26 record, as his is the only evidence consistent with the RFC. T 528. His opinion is also 27 28 remarkably inconsistent with the evidence of record, including the opinions of Dr. Columb, Dr. 3 Case 1:16-cv-00017-SLG Document 22 Filed 06/23/17 Page 3 of 6 1 Musicant, and Dr. Abbott. The ALJ’s cursory conclusion that Dr. Sklaroff’s opinion was 2 supported by the record and therefore should be adopted is insufficient to explain why it should 3 be entitled to greater weight the opinions of treating physicians, which are also supported by the 4 5 record. See Dkt. No. 19 at 17-25. 6 Therefore, the ALJ’s reliance on the opinion from Dr. Sklaroff, a non-examining 7 physician, was improper. Plaintiff’s treating physicians were in a better position to evaluate her 8 functional capacity and render well-supported opinions. This is supported by the fact that each 9 of the treating and examining physicians were consistent with one another in determining that 10 11 Plaintiff is limited to sedentary activity or less. The ALJ’s RFC determination, based only upon 12 Dr. Sklaroff’s unsupported opinion, is therefore unsupported by substantial evidence. 13 Notably, given this Court’s finding regarding Dr. Columb’s opinions and the substantial 14 support it finds in the record, and the fact that the additional evidence of record collectively 15 supported such a reduced RFC, it is questionable that the ALJ felt the need to obtain medical 16 17 expert testimony, if not in search of an opinion to contradict the overwhelming evidence 18 supportive of Plaintiff’s claim. Indeed, there was no gap in evidence that would warrant such 19 testimony. Other Courts have acknowledged that this behavior in ALJs, who are supposed to be 20 neutral judges in a non-adversarial proceeding, is concerning. Indeed, in Creekmore v. Colvin, 21 22 the District Court for the District of South Carolina stated it "would look with grave concern on 23 the use by the Social Security Administration of a "hired gun" expert to defeat the claims of 24 potentially deserving claimants by systematically attacking the opinions and treatment of their 25 treating physicians." Creekmore v. Colvin, No. CIV.A. 5:14-3019-RMG, 2015 WL 4771947, at 26 *7 (D.S.C. Aug. 12, 2015). 27 28 The circumstances of this case lead one to question the utility of expert testimony; despite 4 Case 1:16-cv-00017-SLG Document 22 Filed 06/23/17 Page 4 of 6 1 the complete record and well-supported treating physician opinions, the ALJ hired Dr. Sklaroff 2 to provide testimony, and then accorded his opinion controlling weight, adopting it in full. T 528. 3 A review of Dr. Sklaroff’s testimony reflects the practice the Creekmore Court found 4 5 concerning, as he systematically targeted the more limiting functional assessments in the file and 6 provided speculative reasons for why they may not be entirely credible. T 544-60. The ALJ’s 7 use of and reliance upon the medical expert testimony in this case, was erroneous, as the record 8 as a whole, absent Dr. Sklaroff’s testimony, supports a far more restrictive RFC. 9 Accordingly, for the above mentioned reasons and the reasons provided in Plaintiff’s 10 11 initial memorandum, this matter requires remand so the medical opinion evidence may be 12 properly evaluated and weighed. 13 CONCLUSION 14 Based on the foregoing and Plaintiff’s Memorandum of Law in Support of a Social 15 Security Appeal, it is respectfully requested that the Commissioner’s decision be vacated and 16 17 that this matter be remanded for further administrative proceedings. 18 19 Respectfully submitted, 20/s/Howard Olinsky 21 HOWARD OLINSKY 22 Attorney for Plaintiff Pro hac vice 23 Olinsky Law Group One Park Place 24 300 South State Street 25 Syracuse, New York 13202 Telephone: (315) 701-5780 26 Fax: (315) 701-5781 holinsky@windisability.com 27 28 5 Case 1:16-cv-00017-SLG Document 22 Filed 06/23/17 Page 5 of 6 1 2 3 4 5 6 CERTIFICATE OF SERVICE 7 8 This is to certify that I have this day served counsel for the Defendant with Plaintiff’s Memorandum of Law by electronically filing the foregoing with the Clerk of the Court by using 9 the CM/ECF system which will send electronic notification of such filing to: 10 11 KAREN L. LOEFFLER United States Attorney 12 13 LEISA A. WOLF 14 Special Assistant United States Attorney Office of the General Counsel 15 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 16 Seattle, WA 98104-7075 17 Telephone: (206) 615-3621 Fax: (206) 615-2531 18 leisa.wolf@ssa.gov 19 20 This 23rd day of June, 2017. 21/s/Howard Olinsky 22 HOWARD OLINSKY 23 Attorney for Plaintiff Pro hac vice 24 Olinsky Law Group One Park Place 25 300 South State Street 26 Syracuse, New York 13202 Telephone: (315) 701-5780 27 Fax: (315) 701-5781 holinsky@windisability.com 28 6 Case 1:16-cv-00017-SLG Document 22 Filed 06/23/17 Page 6 of 6

ORDER: granting Plaintiff's Motion for Extension of Time [21] to file reply re [19] Motion to Remand. Reply ACCEPTED as timely filed. Signed by Judge Sharon L. Gleason on 06/26/2017. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA SUSAN ELEANOR SENE, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. Case No. 1:16-cv-00017-SLG ORDER RE MOTION FOR EXTENSION Upon consideration of Plaintiff’s Consent Motion for Extension of Time (Docket 21), the Court hereby GRANTS the motion. IT IS ORDERED that Plaintiff‘s Reply Memorandum (Docket 22) is ACCEPTED as timely filed. DATED this 26th day of June, 2017 at Anchorage, Alaska./s/Sharon L. Gleason UNITED STATES DISTRICT JUDGE Case 1:16-cv-00017-SLG Document 23 Filed 06/26/17 Page 1 of 1

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Description
1
11/21/2016
COMPLAINT against Carolyn W. Colvin, filed by Susan Eleanor Sene.
1
Exhibit A
1 Attachment
2
11/21/2016
Civil Cover Sheet
3
11/21/2016
MOTION for Leave to Proceed in forma pauperis by Susan Eleanor Sene.
4
11/21/2016
Unissued summons re Defendant C. Colvin
1
Unissued Summons re Defendant USAG
2
Unissued Summons re Defendant USAO
2 Attachments
5
11/23/2016
ORDER DIRECTING SERVICE AND RESPONSE: Application to Waive Filing Fee, at docket 3, is GRANTED. Counsel for plaintiff shall insure service within 90 days of Complaint. Signed by Judge Sharon L. Gleason on 11/23/16.
11/23/2016
Summons Issued as to Carolyn W. Colvin, U.S. Attorney, and U.S. Attorney General (Text entry; no document attached.)
6
12/15/2016
SUMMONS Returned Executed by Susan Eleanor Sene. Carolyn W. Colvin served on 12/13/2016, answer due 2/13/2017.
7
12/15/2016
NOTICE of Appearance by Richard L. Pomeroy on behalf of Carolyn W. Colvin
8
01/24/2017
SOCIAL SECURITY SCHEDULING ORDER: establishing briefing deadlines (see order for full details). Signed by Judge Sharon L. Gleason on 01/24/2016. (AEM, CHAMBERS STAFF)
01/24/2017
Docket Annotation: For the purpose of tracking the briefing as ordered at docket 8, when filing the Opening Brief the attorney shall file the document using the event Motion Miscellaneous Relief and text in the relief being sought. Responsive filings should be filed using the event Response in Opposition to Motion or Response to Motion (Non-Opposition). The reply, if any, shall be filed using the event Reply to Response to Motion. (Text entry; no document attached.)
9
01/30/2017
NOTICE of Appearance by Leisa A. Wolf on behalf of Carolyn W. Colvin
10
02/07/2017
MOTION for Extension of Time to File Answer re 1 Complaint by Social Security Administration
1
Proposed Order
1 Attachment
11
02/07/2017
DECLARATION of Leisa A. Wolf re 10 MOTION for Extension of Time to File Answer re 1 Complaint by Social Security Administration
02/09/2017
Docket Annotation: Nancy A. Berryhill, represented by Richard L. Pomeroy and Leisa A. Wolf substituted for Carolyn W. Colvin (acting Commissioner of Social Security) pursuant to FRCvP 25(d)(1) (Text entry; no document attached.)
12
03/10/2017
ORDER: granting Defendant's Motion for Extension of Time to File a Response 10. Signed by Judge Sharon L. Gleason on 03/10/2017. (AEM, CHAMBERS STAFF)
13
03/13/2017
ANSWER to 1 Complaint by Nancy A. Berryhill.
14
03/13/2017
Notice of Lodging Administrative Record
1
Certification Page 02-15-2017
2
Court Transcript Index 02-15-2017
3
Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable 08-19-2014
4
Payment Documents and Decisions 08-19-2014
5
Jurisdictional Documents and Notices 08-19-2014
6
Non Disability Related Development 08-19-2014
7
Disability Related Development 08-19-2014
8
Medical Records 08-19-2014
9
Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable 02-15-2017
10
Payment Documents and Decisions 02-15-2017
11
Jurisdictional Documents and Notices 02-15-2017
12
Non Disability Related Development 02-15-2017
13
Disability Related Development 02-15-2017Disability Related Development 02-15-2017
14
Medical Records 02-15-2017 Part 1
15
Medical Records 02-15-2017 Part 2
15 Attachments
15
04/05/2017
MOTION for Extension of Time to File (Unopposed) by Susan Eleanor Sene.
1
Proposed Order
1 Attachment
16
04/06/2017
ORDER: granting Plaintiff's Consent Motion for Extension of Time 15. Signed by Judge Sharon L. Gleason on 04/06/2017. (AEM, CHAMBERS STAFF)
17
04/20/2017
MOTION for Leave to Appear as Pro Hac Vice (Non-Resident) Attorney Howard D. Olinsky. (Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2318855.) by Susan Eleanor Sene.
1
Certificate of Good Standing
1 Attachment
18
04/21/2017
CLERK'S NOTICE re 17 Application to Appear Pro Hac Vice. The Application to Appear Pro Hac Vice by Howard D. Olinsky, at docket 17, is authorized under D.Ak. LR 83.1(d).
19
05/10/2017
MOTION to Remand to Social Security by Susan Eleanor Sene.
20
06/08/2017
RESPONSE in Opposition re [19] MOTION to Remand to Social Security filed by Nancy A. Berryhill.
21
06/23/2017
Consent MOTION for Extension of Time to File Response/Reply by Susan Eleanor Sene.
1
Proposed Order
1 Attachment
22
06/23/2017
REPLY to Response to Motion re [19] MOTION to Remand to Social Security filed by Susan Eleanor Sene.
23
06/26/2017
ORDER: granting Plaintiff's Motion for Extension of Time [21] to file reply re [19] Motion to Remand. Reply ACCEPTED as timely filed. Signed by Judge Sharon L. Gleason on 06/26/2017. (AEM, CHAMBERS STAFF)
24
01/03/2018
SLG TEXT ORDER: By agreement of the judges, case number 1:16-cv-00017-SLG is hereby reassigned to the Honorable Judge Ralph R. Beistline for all further proceedings. Please use the following case number for all future filings: 1:16-cv-00017-rrb.
27
07/02/2018
Attorney Fees
28
07/02/2018
Declaration
29
07/16/2018
Response to Motion (Non-Opposition)
30
07/18/2018
Order on Motion for Attorney Fees
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