Servia v. Colvin
Court Docket Sheet

District of Arizona

4:2016-cv-00464 (azd)

RESPONSE BRIEF by Carolyn W Colvin.

Case 4:16-cv-00464-JR Document 20 Filed 01/11/17 Page 1 of 10 1 John S. Leonardo United States Attorney 2 District of Arizona 3 Sarah Moum 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA42086 8 Fax: (206) 615-2531 sarah.moum@ssa.gov 9 Telephone: (206) 615-2936 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Joseph Servia, 14 No. 4:16-CV-00464-JR 15 Plaintiff, 16 DEFENDANT'S BRIEF vs. 17 Carolyn W. Colvin, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 STATEMENT OF ISSUES 22 Plaintiff Joseph Servia brought this action pursuant to 42 U.S.C. §§ 405(g), 23 1383(c)(3) (2012), seeking judicial review of the final administrative decision of the 24 25 Commissioner of Social Security (the Commissioner) denying his applications for 26 disability insurance benefits under Title II and Supplemental Security Income disability 27 benefits under Title XVI of the Social Security Act. Plaintiff’s Opening Brief (Pl.’s Br.) 28 Case 4:16-cv-00464-JR Document 20 Filed 01/11/17 Page 2 of 10 1 raises two issues: 2 1. Whether the administrative law judge (ALJ) satisfied any duty to develop the 3 record; and 4 5 2. Whether the ALJ reasonably evaluated Plaintiff’s subjective symptom reports. 6 STANDARD OF REVIEW 7 The Commissioner’s final decision must be affirmed if it is supported by 8 substantial evidence and is free of legal error. 42 U.S.C. § 405(g); Meanel v. Apfel, 172 9 10 F.3d 1111, 1113 (9th Cir. 1999). Substantial evidence is such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion. Richardson v. 12 Perales, 402 U.S. 389, 401 (1971). "This is a highly deferential standard of review." 13 14 Valentine v. Comm’r Soc. Sec. Admin., 547 F.3d 685, 690 (9th Cir. 2009). 15 STATEMENT OF FACTS 16 Born in 1964, Plaintiff was 45 years old on his alleged disability onset date and 49 17 18 years old on the date of the ALJ’s decision (Tr. 26) He has a high school education, and 19 worked in the past as a journeyman or line clerk (Tr. 61-62). The ALJ has summarized 20 the medical and testimonial evidence (Tr. 17-25). The Commissioner will discuss the 21 relevant evidence in connection with the arguments. 22 23 ARGUMENT 24 I. The ALJ satisfied any duty to develop the record. 25 Plaintiff argues that the ALJ failed to develop the record with regard to 26 27 osteoporosis/osteopenia (Pl.’s Br. at 13-15). However, "[a]n ALJ’ s duty to develop the 28 record is triggered only when there is ambiguous evidence or when the record is 2 Case 4:16-cv-00464-JR Document 20 Filed 01/11/17 Page 3 of 10 1 inadequate to allow for proper evaluation of the evidence." Mayes v. Massanari, 276 F.3d 2 453, 459-60 (9th Cir. 2001). 3 Here, Plaintiff does not point to any specific ambiguity or inadequacy prohibiting 4 5 proper evaluation of the evidence. Instead, he points to the statement of consultative 6 physician Jerome Rothbaum, M.D., that "x-rays may … shed some light on the 7 osteopenia or osteoporosis if that exists" (Pl.’s Br. at 14, 15; Tr. 437). However, the fact 8 that an impairment may be better assessed through further testing does not mean that the 9 10 evidence that is contained in the record is inadequate or ambiguous; indeed, many 11 impairments may be better assessed through further and more expensive testing. Instead, 12 it is the agency’s burden to develop only when the record is inadequate or ambiguous. 13 14 This is not a case of ambiguity or inadequacy. Indeed, in this case, the ALJ 15 recognized the diagnosis of osteopenia (Tr. 17, 423). Further, the state agency physicians, 16 upon whose opinions the ALJ relied, also specifically recognized the diagnosis of 17 18 osteoporosis and assessed physical limitations (Tr. 108, 126 ("MER does show hx of 19 osteoporosis and back problems"); Tr. 112-13). Moreover, even Dr. Rothbaum, the 20 physician who suggested additional imaging, found the record sufficiently adequate and 21 unambiguous to assess limitations (Tr. 435-37). 22 23 Dr. Rothbaum’s opinion here stands in contrast to that of the medical source in 24 Tonapetyan v. Halter, 242 F.3d 1144 (9th Cir. 2001), upon which Plaintiff relies (Pl.’s 25 Br. at 13). In that case, the testifying medical expert specifically stated it was "difficult to 26 27 say" whether the record was complete enough to allow the ALJ to reach a conclusion and 28 he "remained equivocal" throughout his testimony. Tonapetyan, 242 F.3d at 1150. In that 3 Case 4:16-cv-00464-JR Document 20 Filed 01/11/17 Page 4 of 10 1 case, the medical expert’s recommendation for a more detailed report was paired with 2 express equivocation. Id. The same is not true here, and Tonapetyan does not control the 3 outcome of this case. 4 5 An ALJ’s duty to develop "is not never-ending." McCoy v. Astrue, 648 F.3d 605, 6 612 (8th Cir. 2011). Here, Plaintiff has not established that the record was inadequate or 7 ambiguous, and the ALJ had no duty to further develop the record. The Court should 8 affirm the ALJ’s finding. 9 10 II. The ALJ reasonably evaluated Plaintiff’s subjective symptom reports. 11 Plaintiff objects that the ALJ did not properly evaluate his symptom allegations 12 (Pl.’s Br. at 15-20). However, because the ALJ supported his decision with valid findings 13 14 supported by substantial evidence, the Court should affirm the ALJ’s findings. 15 When the record establishes a medically determinable impairment that could 16 reasonably cause a claimant’s reported symptoms, an ALJ must evaluate the claimant’s 17 18 symptom reports. 20 C.F.R. §§ 404.1529, 416.929. The Ninth Circuit has held that courts 19 review these findings for clear and convincing reasons. Molina v. Astrue, 674 F.3d 1104, 20 1112 (9th Cir. 2012). An ALJ need only make "findings sufficiently specific to permit the 21 reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant’s 22 23 testimony." Orteza v. Shalala, 50 F. 3d 748, 750 (9th Cir. 1995). If the credibility finding 24 is supported by substantial evidence, the Court "may not engage in second-guessing." 25 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). Here, the ALJ found that 26 27 Plaintiff’s allegations concerning the intensity, persistence, and limiting effects of her 28 symptoms were not entirely credible (Tr. 20, 23). 4 Case 4:16-cv-00464-JR Document 20 Filed 01/11/17 Page 5 of 10 1 First, the ALJ noted that Plaintiff had significant gaps in treatment between 2 August 2011 and August 2014 (Tr. 21, 22). A claimant’s "statements may be less 3 credible if the level or frequency of treatment is inconsistent with the level of 4 5 complaints." SSR 96-7p, at *7. Lack of consistent treatment is a reason to discredit pain 6 testimony. Burch, 400 F. 3d at 681. Not seeking "an aggressive treatment program" 7 permits the inference that the claimant’s pain was not as "all-disabling" as reported. 8 Tommasetti, 533 F.3d at 1039. Here, for example, Plaintiff reported that he spends 95% 9 10 of his time lying in bed due to pain (Tr. 52). However, despite his allegations of such 11 debilitating pain, Plaintiff did not treat at all between August 2011 and August 2014 (Tr. 12 21, 23). The ALJ reasonably considered Plaintiff’s significant gap in treatment when 13 14 evaluating his symptom complaints. 15 Plaintiff objects that he was unable to afford treatment (Pl.’s Br. at 18). However, 16 the ALJ also noted that Plaintiff’s symptoms were well-controlled, both with prescription 17 18 and over-the-counter treatment. "The type, dosage, effectiveness, and side effects of any 19 medication you take or have taken to alleviate your pain or other symptoms" are relevant 20 to the evaluation of a claimant’s alleged symptoms." 20 C.F.R. §§ 404.1529(c)(3)(iv), 21 416.929(c)(3)(iv). "Impairments that can be controlled effectively with medication are 22 23 not disabling." Warre ex rel. E.T. IV v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 24 (9th Cir. 2006). Here, for example, Plaintiff reported in November 2010 that his 25 prescribed medication regimen was "helping him function well daily with no side effects" 26 27 (Tr. 21, 375). In August 2011, following participation in a rehabilitation program due to 28 drug use, Plaintiff reported to treatment provider Xin-Nong Li, M.D., that his back and 5 Case 4:16-cv-00464-JR Document 20 Filed 01/11/17 Page 6 of 10 1 foot pain were relatively well-controlled with exercise, Motrin, and occasional marijuana 2 (Tr. 21, 299). Contrary to Plaintiff’s allegations that the ALJ "fail[ed] to consider" 3 Plaintiff’s treatment history (Pl.’s Br. at 18), the ALJ reasonably considered Plaintiff’s 4 5 reports of well-controlled symptoms and the ability to function well both on and off his 6 medication when evaluating his allegations of disabling pain. 7 The ALJ also noted that Plaintiff engaged in activities that were not consistent 8 with his allegations of disabling pain (Tr. 21). For example, the ALJ noted that Plaintiff 9 10 traveled out of state to visit his parents in Arizona in November 2010 (Tr. 375). As the 11 ALJ correctly noted, travel and disability are not necessarily mutually exclusive (Tr. 21). 12 In this case, however, Plaintiff’s ability to travel between Arizona and California 13 14 indicates his symptoms and limitations may have been overstated (Tr. 21). 15 The ALJ also noted Plaintiff’s inconsistent statements regarding drug use (Tr. 23). 16 Inconsistent statements and a lack of candor regarding drug and alcohol use support a 17 18 finding that the claimant’s allegations are not fully credible. Thomas v. Barnhart, 278 19 F.3d 947, 958-59 (9th Cir. 2002). Here, for example, Plaintiff reported to consultative 20 evaluator Richard Hicks, M.D., in August 2011, that he had no history of drug or alcohol 21 abuse (Tr. 23, 429). However, the record documents positive illicit substance test results 22 23 (Tr. 310, 421), and Plaintiff reported at the hearing that he used methamphetamines two 24 or three times a week up until October 26, 2011, when he was arrested (Tr. 53). Further, 25 while Plaintiff testified that he had last used marijuana in October 2012, when he moved 26 27 to Arizona (Tr. 53), he told a consultative evaluator in December 2012 that he 28 occasionally used marijuana (Tr. 23, 434). The ALJ reasonably considered Plaintiff’s 6 Case 4:16-cv-00464-JR Document 20 Filed 01/11/17 Page 7 of 10 1 lack of candor and inconsistent statements regarding drug use in evaluating the veracity 2 of his subjective symptom complaints.1 3 Finally, Plaintiff objects that the ALJ did not discuss Plaintiff’s employment 4 5 history (Pl.’s Br. at 18). However, while the regulations note that the agency will 6 "consider all of the evidence presented" regarding symptom allegations, "including 7 information about your prior work record," (20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3)), 8 a regulatory requirement to "consider" a piece of evidence does not require explicit or 9 10 extensive discussion by the ALJ. See Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 11 1068, 1069 (9th Cir. 2010) (rejecting argument that ALJ had to explain in her written 12 decision why she did not use a more favorable age category "because she was required by 13 14 regulation only to consider whether to use the older age category"); Bayliss v. Barnhart, 15 427 F.3d 1211, 1217 (9th Cir. 2005) (rejecting argument that regulations requiring ALJs 16 to "consider" fifty-four work functions implicitly require a "function-by-function" 17 18 analysis for each function in the decision). 19 Plaintiff further objects that the ALJ did not discuss Plaintiff’s receipt of a 20 handicapped placard (Pl.’s Br. at 19); however, the record merely reveals that his doctor 21 gave him a form (Tr. 366). The record does not reveal the basis for completion of the 22 23 24 25 26 1 The ALJ stated that the credibility of a claimant who uses illegal substances is always 27 suspect as a result of the exhibited indifference to following rules, regulations, and laws (Tr. 23). The Commissioner does not rely on this reasoning. The Commissioner likewise 28 does not rely upon the ALJ’s discussion of Plaintiff’s failure to quit smoking (Tr. 22). 7 Case 4:16-cv-00464-JR Document 20 Filed 01/11/17 Page 8 of 10 1 form or whether it was for a temporary or permanent placard (Tr. 366).2 The ALJ did not 2 err by not discussing his provider’s note regarding a placard form. 3 In sum, the ALJ provided multiple reasons to find Plaintiff’s allegations of 4 5 disabling pain less than fully credible, including significant gaps in treatment, success 6 with treatment, reported activities, and lack of candor. The Court should affirm the ALJ’s 7 decision. 8//9 10//11//12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 The state of California has multiple types of placards, including temporary placards. See 28 https://www.dmv.ca.gov/portal/dmv/detail/pubs/brochures/fast_facts/ffvr07. 8 Case 4:16-cv-00464-JR Document 20 Filed 01/11/17 Page 9 of 10 1 CONCLUSION 2 Because the ALJ’s findings are supported by substantial evidence and free of 3 harmful error, the Commissioner requests this Court affirm the Commissioner’s final 4 5 decision that Plaintiff was not disabled. 6 DATED this 11th day of January 2017. 7 Respectfully submitted, 8 JOHN S. LEONARDO 9 United States Attorney 10 District of Arizona 11 s/Sarah Moum 12 SARAH MOUM Special Assistant United States Attorney 13 14 Of Counsel for the Defendant: 15 MATHEW W. PILE 16 Acting Regional Chief Counsel, Social Security Administration 17 Office of the General Counsel, Region X 701 Fifth Avenue, Suite 2900 M/S 221A 18 Seattle, WA 98104-7075 19 20 21 22 23 24 25 26 27 28 9 Case 4:16-cv-00464-JR Document 20 Filed 01/11/17 Page 10 of 10 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Defendant's Brief was filed with the 3 Clerk of the Court on January 11, 2017, using the CM/ECF system, which will 4 5 send notification of such filing to the following: Howard D Olinsky. 6 7 s/Sarah Moum SARAH MOUM 8 Special Assistant U.S. Attorney 9 Office of the General Counsel 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

ORDER: the decision of the Commissioner is REVERSED and this case is REMANDED for further proceedings consistent with this order. It is further ordered that the Clerk of Court shall enter judgment and close this case. Signed by Magistrate Judge Jacqueline M Rateau on 9/26/17. (See attached PDF for complete information.)

Case 4:16-cv-00464-JR Document 21 Filed 09/27/17 Page 1 of 15 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 8 DISTRICT OF ARIZONA 9 Joseph Servia, No. CV-16-0464-TUC-JR 10 Plaintiff, 11 ORDER 12 vs. 13 Carolyn W. Colvin, 14 Acting Commissioner of Social Security, 15 Defendant. 16 Plaintiff Joseph Servia applied for supplemental security income ("SSI") benefits 17 18 under Title XVI of the Social Security Act ("SSA"), 42 U.S.C. §§ 1381-83f, and 19 disability insurance benefits ("DIB") under Title II of the SSA, on June 20, 2012, 20 claiming to be disabled as of July 7, 2010. Administrative Record ("R.") at 193, 202. 21 22 The Commissioner denied the application and Servia now seeks review. The parties 23 consented to the exercise of jurisdiction by a Magistrate Judge, pursuant to 28 U.S.C. § 24 636(c)(1). 25 26 Pending before the court is an Opening Brief filed by Plaintiff (Doc. 19) and 27 Defendant’s Brief in opposition (Doc. 20). Plaintiff did not file a Reply Brief. Plaintiff 28 Case 4:16-cv-00464-JR Document 21 Filed 09/27/17 Page 2 of 15 1 presents two issues: (1) whether the Administrative Law Judge ("ALJ") erred by failing 2 to fully and fairly develop the administrative record before determining Servia retained 3 the residual functional capacity ("RFC") to engage in light work; and (2) whether the 4 5 ALJ erred by finding Servia’s testimony regarding his functional limitations not credible. 6 For the reasons that follow, the Court reverses the Decision and remands this case for 7 further proceedings consistent with the discussion below. 8 I. Background 9 10 Servia filed applications for SSI and DIB on June 20, 2012, alleging disability due 11 to osteoporosis and compression fractures in vertebrae and alleging an onset date of July 12 7, 2010. R. at 193, 100, 231. The Commissioner initially denied the claims on January 13 14 10, 2013, and on reconsideration on June 24, 2013. R. at 69, 70, 99, 100. Servia 15 requested a hearing before an ALJ, which was held on October 3, 2014. R. at 56-86 16 (transcript). In a Decision dated December 4, 2014, the ALJ denied Servia’s 17 18 applications. R. at 15-26 (Decision). Servia sought review of the Decision by the 19 Appeals Council, which was denied on May 6, 2016, and the ALJ’s Decision became the 20 final decision of the Commissioner. R. at 1-3. This appeal followed. 21 II. Standard of Review 22 23 The Commissioner’s decision to deny disability benefits will be vacated "only if it 24 is not supported by substantial evidence or is based on legal error." Robbins v. Soc. Sec. 25 Admin., 466 F.3d 880, 882 (9th Cir.2006). "’Substantial evidence’ means more than a 26 27 mere scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable 28 mind might accept as adequate to support a conclusion." Id. In evaluating whether the 2 Case 4:16-cv-00464-JR Document 21 Filed 09/27/17 Page 3 of 15 1 decision is supported by substantial evidence, the Court must consider the record as a 2 whole, weighing both the evidence that supports the decision and the evidence that 3 detracts from it. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.1998); see 42 U.S.C. § 4 5 405(g) ("findings of the Commissioner of Social Security as to any fact, if supported by 6 substantial evidence, shall be conclusive"). If there is sufficient evidence to support the 7 Commissioner’s determination, the Court cannot substitute its own determination. See 8 Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). 9 10 III. The ALJ’s Application of the Disability Standards 11 For purposes of Social Security benefits determinations, a disability is defined as: 12 The inability to do any substantial gainful activity by reason of any 13 medically determinable physical or mental impairment which can be 14 expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 15 16 20 C.F.R. §§ 404.1505, 416.905(a). 17 Whether a claimant is disabled is determined using a five-step evaluation process. 18 It is claimant’s burden to show (1) he has not worked since the alleged disability onset 19 date, (2) he has a severe physical or mental impairment, and (3) the impairment meets or 20 21 equals a listed impairment or (4) his RFC precludes him from doing his past work. If at 22 any step the Commission determines that a claimant is or is not disabled, the inquiry 23 ends. If the claimant satisfies his burden though step four, the burden shifts to the 24 25 Commissioner to show at step five that the claimant has the RFC to perform other work 26 that exists in substantial numbers in the national economy. See 20 C.F.R. §§ 27 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). 28 3 Case 4:16-cv-00464-JR Document 21 Filed 09/27/17 Page 4 of 15 1 Here, at step one, the ALJ found that Servia had not engaged in substantial gainful 2 activity since July 7, 2010, his alleged onset date. R. at 17. At step two of the inquiry, 3 the ALJ concluded that Servia had the following "severe" impairments: degenerative disc 4 5 disease, hypertension, and osteopenia. R. at 17-19. At step three, the ALJ determined 6 that Servia’s impairments did not meet or medically equal one of the impairments listed 7 in 20 C.F.R. pt. 404, subpt. P, app. 1. R. at 19-20. 8 Between steps three and four, the ALJ stated that: 9 10 After careful consideration of the entire record, the undersigned finds that the claimant had the residual functional capacity to perform light work as 11 defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can 12 frequently climb ramps, stairs and occasionally climb ladders, ropes and scaffolds. She [sic] can frequently balance, stoop, kneel, crouch, and 13 occasionally crawl. Manipulatively, the claimant can only occasionally 14 perform overhead lifting with either upper extremity. 15 R. at 20. At step four, the ALJ found that Servia was unable to perform his past relevant 16 work as a cashier/stocker/storekeeper. R. at 24. Then, at step five, the ALJ found that, 17 18 considering his age (45 years old on the alleged date of onset), education (high school), 19 work experience, and RFC, and using the Medical-Vocational Rules as a framework for 20 decision-making, Servia could perform jobs that exist in significant numbers in the 21 regional economy, including working as a "clerk cashier II" with 51,740 jobs in Arizona. 22 23 R. at 24. Therefore, the ALJ concluded that Servia "has not been under a disability, as 24 defined in the Social Security Act, from July 7, 2010, through the date of this decision." 25 R. at 25. 26 27 28 4 Case 4:16-cv-00464-JR Document 21 Filed 09/27/17 Page 5 of 15 1 IV. Discussion 2 A. Development of the record 3 Servia argues that the ALJ erred by failing to develop the record in relation to his 4 5 osteoporosis/osteopenia. When applying for disability benefits, the claimant has the duty 6 to prove that he is disabled. 42 U.S.C. § 423(c)(5)(A). However, it is the ALJ’s "duty to 7 fully and fairly develop the record and to assure that the claimant’s interests are 8 considered." Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (quoting Brown 9 10 v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). This duty arises where the evidence is 11 ambiguous or the record is inadequate to allow for proper evaluation of the evidence. 12 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001); Tonapetyan v. Halter, 242 13 14 F.3d 1144, 1150 (9th Cir. 2001). A specific finding of ambiguity or inadequacy in the 15 record is not required to trigger the necessity to further develop the record where the 16 record itself establishes the ambiguity or inadequacy. McLeod v. Astrue, 640 F.3d 881, 17 18 885 (9th Cir. 2011). 19 Here, there was no specific finding of ambiguity or inadequacy. Rather, Servia 20 notes that he informed Dr. Hicks, a consulting examining physician, that he had "been 21 told that his bones are similar to an 80-year-old female with multiple fractures, 22 23 dislocations, and degenerative disc disease." R. at 428. Servia also points out that Dr. 24 Rothbaum, also a consulting examining physician, "explicitly stated that further imaging 25 would'shed some light’ on his osteopenia versus osteoporosis diagnosis." Opening 26 27 Brief, p. 14 (citing R. at 437). As Servia presents them, the doctors’ statements tend to 28 5 Case 4:16-cv-00464-JR Document 21 Filed 09/27/17 Page 6 of 15 1 support his argument that the record was not sufficiently developed. However, when the 2 doctors’ statements are evaluated in context, they take on a different significance. 3 First, Dr. Hicks was employed to perform a mental status examination. R. at 428-4 5 31. In his evaluation, he merely reiterated what Servia had told him about the history of 6 his physical condition. R. at 428. Dr. Hicks proceeded to conclude that "psychiatrically, 7 [Servia] could do simple tasks... take simple instructions... could interact with 8 coworkers and the public... could be consistent and regular" and "could manage his 9 10 own funds." R. at 431. In doing so, Dr. Hicks stated that his conclusions were "all based 11 on a psychiatric condition," and he twice stated that Servia’s medical conditions and 12 physical disorders were separately evaluated. R. at 431. Thus, in quoting from Dr. 13 14 Hicks’ evaluation, Servia is merely reiterating what he told the doctor about his physical 15 condition. The doctor never indicated that the record needed to be further developed on 16 this point; rather, he expressly noted his evaluation was psychiatric and not physical. 17 18 Servia similarly misconstrues Dr. Rothbaum’s statements. Servia also told Dr. 19 Rothbaum that he suffered from a vertebral collapsed fracture. R. at 433. The doctor 20 then included in his impression a "[h]istory of vertebral compression fracture." R. at 434. 21 However, Servia omits that the doctor, in the next sentence, states that "[t]here seems to 22 23 be some disparity in the history...." R. at 434. The doctor further illuminates this 24 statement in his comments following his physical evaluation: 25 The claimant gives a history which I am having difficulty validating. The 26 requested x-rays may help to validate some of his complaints. Also may 27 shed some light on the osteopenia or osteoporosis if that exists. 28 6 Case 4:16-cv-00464-JR Document 21 Filed 09/27/17 Page 7 of 15 1 R. at 437. When read in its entirety, this comment does not, as Servia argues, indicate 2 that the record is not fully developed in relation to any diagnosis. Rather, Dr. Rothbaum 3 indicated that the record does not validate the history of his physical condition provided 4 5 by Servia. 6 This case is quite unlike other instances in which the ALJ was found to have a 7 duty to further develop the record. For example, in Tonapetyan, the Ninth Circuit found 8 that the ALJ erred by relying on the testimony of physician who indicated more 9 10 information was needed to allow him to decide which of two competing diagnoses was 11 supported by the record. 242 F.3d at 1150-51. Here, Servia is arguing that the confusion 12 caused by the history he provided, which in large part was not supported by the record at 13 14 all, rendered the record ambiguous. If that were the case, every time a consulting 15 examiner did not find support for a claimant’s claimed diagnoses, further examination or 16 testing would be necessary. However, it is not the ALJ’s role to "exhaust every possible 17 18 line of inquiry in an attempt to pursue every potential line of questioning." Hawkins v. 19 Chater, 113 F.3d 1162, 1168 (10th Cir. 1997) ("The standard is one of reasonable good 20 judgment"). Rather, the ALJ is only required to conduct further inquiries with a treating 21 or consulting physician "if the medical records presented to him do not give sufficient 22 23 medical evidence to determine whether the claimant is disabled." Johnson v. Astrue, 627 24 F.3d 316, 319-20 (8th Cir. 2010). Here, Dr. Rothbaum did not indicate that he had 25 insufficient information to determine whether Servia is disabled, see Hilliard v. Barnhart, 26 27 442 F.Supp.2d 813, 818-19 (N.D. Cal. 2006) (ALJ erred by failing to develop record 28 where he relied on the opinion of a physician who recognized he did not have sufficient 7 Case 4:16-cv-00464-JR Document 21 Filed 09/27/17 Page 8 of 15 1 information to make a diagnosis), he merely indicated that there was insufficient 2 evidence to support much of history conveyed to him by Servia. As such, the ALJ was 3 under no obligation to further develop the record. 4 5 Moreover, even if the ALJ was under a duty to further develop the record 6 regarding Servia’s claims of osteoporosis, he met that duty by leaving the record open for 7 an additional two weeks following the hearing. R. at 42-43; see Tonapetyan, 242 F.3d at 8 1150 (ALJ may meet duty to develop record in "several ways," including by "keeping the 9 10 record open after the hearing to allow supplementation of the record"); Hanbey v. Astrue, 11 506 F. App’x 615, 616 (9th Cir. 2013) (finding that even if ambiguous records "triggered 12 the ALJ's duty to develop the record, the ALJ fulfilled that duty by according [claimant] 13 14 the opportunity to supplement the record after the hearing had concluded"). The ALJ 15 extended to Servia and his counsel an invitation to submit "any and all documents to me 16 that will help me understand this case." R. at 42-43. It does not appear that Servia or his 17 18 counsel took him up on the invitation, but that was not the fault of the ALJ. 19 B. The ALJ’s credibility assessment 20 Servia alleges that the ALJ failed to provide legally sufficient reasons for 21 discounting his credibility. An ALJ must make specific credibility findings that are 22 23 supported by the record. SSR 96-7p (1996). An ALJ’s assessment of the credibility of a 24 claimant’s allegations concerning the severity of his symptoms is entitled to "great 25 weight." See Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended). "[T]he 26 27 ALJ is not required to believe every allegation of disabling pain, or else disability 28 benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 8 Case 4:16-cv-00464-JR Document 21 Filed 09/27/17 Page 9 of 15 1 423(d)(5)(A)." Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing Fair v. 2 Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 3 To determine whether a claimant’s testimony is credible, the ALJ must engage in a 4 5 two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). "First, the 6 ALJ must determine whether the claimant has presented objective medical evidence of an 7 underlying impairment'which could reasonably be expected to produce the pain or other 8 symptoms alleged.’" Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) 9 10 (en banc)). If such objective medical evidence exists, the ALJ may not reject a 11 claimant’s testimony "simply because there is no showing that the impairment can 12 reasonably produce the degree of symptom alleged." Smolen v. Chater, 80 F.3d 1273, 13 14 1282 (9th Cir. 1996). 15 If the claimant satisfies the first prong of the analysis, the ALJ can reject the 16 claimant’s testimony about the severity of her symptoms only by "offering specific, clear 17 18 and convincing reasons for doing so." Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th 19 Cir. 2007). The ALJ may consider, among other factors, (1) ordinary techniques of 20 credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent 21 statements, and other testimony by the claimant that appears less than candid; (2) 22 23 unexplained or inadequately explained failure to seek treatment or to follow a prescribed 24 course of treatment; (3) the claimant’s daily activities; (4) the claimant’s work record; 25 and (5) testimony from physicians and third parties. Rounds v. Comm’r Soc. Sec. Admin., 26 27 807 F.3d 996, 1006 (9th Cir. 2015) (as amended); Thomas v. Barnhart, 278 F.3d 947, 28 958-59 (9th Cir. 2002). If substantial evidence supports the ALJ’s credibility 9 Case 4:16-cv-00464-JR Document 21 Filed 09/27/17 Page 10 of 15 1 determination, the determination must be upheld even if some of the reasons relied upon 2 by the ALJ are not correct. Carmickle v. Commissioner of Social Security, 533 F.3d 3 1155, 1162 (9th Cir. 2008). 4 5 Servia contends that the ALJ, in evaluating his credibility, improperly relied on his 6 failure to seek treatment for significant periods of time. The Ninth Circuit has concluded 7 that a claimant’s "failure to seek treatment" can support an adverse credibility 8 determination. Fair, 885 F.2d at 603. Similarly, an ALJ may conclude a claimant’s 9 10 statements are "less credible if the level or frequency of treatment is inconsistent with the 11 level of complaints." SSR 96-7p, 1996. Gaps in treatment may suggest a lower level of 12 pain and functional limitations than a claimant alleges. See Johnson v. Shalala, 60 F.3d 13 14 1428, 1434 (9th Cir. 1995); see also Fair, 885 F.2d at 603 ("unexplained, or inadequately 15 explained, failure to seek treatment... can cast doubt on the sincerity of the claimant’s 16 pain testimony"). 17 18 Here, Servia does not dispute that the record supports the ALJ’s determination that 19 there were significant gaps in treatment. As the ALJ noted, there were gaps in treatment 20 from August 2011 through August 2014. R. at 21-23. However, Servia argues the ALJ 21 erred in considering this factor because the ALJ did not consider his indigent status. The 22 23 applicable regulation requires an ALJ, when rejecting testimony for gaps in treatment, to 24 "consider[] any explanations that the individual may provide, or other information in the 25 case record, that may explain infrequent or irregular medical visits or failure to seek 26 27 treatment." SSR 96-7p, 1996. For example, the Ninth Circuit has held gaps in treatment 28 do not constitute a clear and convincing reason for discounting credibility if the claimant 10 Case 4:16-cv-00464-JR Document 21 Filed 09/27/17 Page 11 of 15 1 lacked the financial ability to pay for treatment. Orn v. Astrue, 495 F.3d 625, 638 (9th 2 Cir. 2007). 3 At the hearing, Servia explained that he was receiving disability benefits from the 4 5 State of California for a time, but the benefits ended in the summer of 2011. R. at 45-46. 6 Servia was then homeless for a time and then moved in with his parents. R. at 46. He 7 applied for benefits under the Arizona Health Care Cost Containment System, but was 8 denied. R. at 46. His mother was paying for his health care at the time and, when asked 9 10 why he had not recently sought treatment, Servia stated "I sure tried. I wanted to." R. at 11 47. The ALJ’s failure to consider evidence of Servia’s financial hardship to explain the 12 gaps in treatment, particularly in light of the evidence in the record indicating he sought 13 14 treatment when he could afford it, was in error. 15 The Commissioner attempts to salvage the ALJ’s failure to consider Servia’s 16 financial hardship by pointing out that the ALJ also noted that Servia’s symptoms were 17 18 "well-controlled, both with prescription and over-the-counter treatment." Defendant’s 19 Brief, p. 5. As the Commissioner notes, "[f]actors relevant to your symptoms, such as 20 pain, which we will consider include... "[t]he type, dosage, effectiveness, and side 21 effects of any medication you take or have taken to alleviate your pain or other 22 23 symptoms." 20 C.F.R. §§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv). As support for the 24 finding that Servia was doing well and that his medication was effective, the ALJ and the 25 Commission note that Servia reported in November 2010 that his medications were 26 27 "helping him function well daily with no side-effects." R. at 21. However, even a 28 cursory examination of the medical record that is the source of this quote establishes that, 11 Case 4:16-cv-00464-JR Document 21 Filed 09/27/17 Page 12 of 15 1 when considered in context, it cannot bear the weight the ALJ places upon it. That same 2 record reflects that Servia was seeking to undergo lumbar facet injections to alleviate his 3 pain. R. at 375. The frequency of his pain was reported as worsening and, although he 4 5 reported that his medications made his pain better, it reduced his pain levels from 9 or 10 6 to a range of 7 to 10 on a scale of 1 to 10. R. at 375. Thus, to say that his medication 7 was helping him is true in an absolute sense; however, it was not reducing Servia’s 8 reported low pain levels suggested by the ALJ. Thus, as it stands, this finding is not 9 10 supported by the records upon which it is based and does not constitute clear and 11 convincing evidence supporting the ALJ’s adverse credibility finding. 12 Servia next contends that the ALJ erred by relying on his inconsistent statements 13 14 about drug use. An ALJ may properly consider evidence of a claimant’s substance use in 15 assessing credibility. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (the ALJ’s 16 finding that claimant was not a reliable historian regarding drug and alcohol usage 17 18 supports negative credibility determination); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th 19 Cir. 1999) (conflicting or inconsistent testimony concerning alcohol or drug use can 20 contribute to an adverse credibility finding). As the Commissioner outlines, in August 21 2011, Servia told a consulting physician that he had "no drug or alcohol history." R. at 22 23 429. However, the record reflects and Servia admitted at the hearing that he had used 24 methamphetamines and marijuana in the past. R. at 310, 421, 434. Thus, the ALJ’s 25 negative credibility determination was properly supported by this conflicting information. 26 27 When an ALJ relies on legally insufficient evidence to support an adverse 28 credibility determination, the Court must consider whether the reliance on invalid reasons 12 Case 4:16-cv-00464-JR Document 21 Filed 09/27/17 Page 13 of 15 1 was a harmless error. See Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 2 1195-97 (9th Cir. 2003) (applying a harmless error standard where the credibility finding 3 was invalid). "So long as there remains'substantial evidence supporting the ALJ’s 4 5 conclusion’s on credibility’ and the error'does not negate the validity of the ALJ’s 6 ultimate credibility conclusion,’ such [error] is deemed harmless." Carmickle, 533 F.3d 7 at 1162 (quoting Batson, 359 F.3d at 1197). Here, the ALJ failed to consider whether the 8 gaps in seeking treatment were due to Servia’s inability to pay. The ALJ also removed a 9 10 statement from its context to suggest that Servia’s pain levels were under control to an 11 extent far greater than reflected in the records. On the other hand, the ALJ properly 12 found that Servia lacked credibility based on inconsistencies between his testimony and 13 14 the medical records in relation to drug use. On balance, however, the Court finds the 15 ALJ’s errors were not harmless. Central to this case is a determination of Servia’s pain 16 levels and the impact of pain on his ability to work. Accordingly, the ALJ’s reliance 17 18 upon invalid reasons for discounting Servia’s credibility was not harmless error. 19 C. Remedy 20 The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 21 405(g) or to order an immediate award of benefits is within the discretion of the district 22 23 court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Ordinarily, when a court 24 reverses an administrative agency determination, the proper course is to remand to the 25 agency for additional proceedings. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). 26 27 Generally, an award of benefits is appropriate only when: 28 13 Case 4:16-cv-00464-JR Document 21 Filed 09/27/17 Page 14 of 15 1 (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved 2 before the determination of disability can be made, and (3) it is clear from 3 the record that the ALJ would be required to find the claimant disabled were such evidence credited. 4 5 Smolen v. Chater, 80 F.3d at 1292. An award of benefits is appropriate where no useful 6 purpose would be served by further administrative proceedings, or where the record has 7 been fully developed. Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1399 8 (9th Cir. 1988). 9 10 Here, the Court finds remand for further proceedings more appropriate than an 11 award for payment of benefits. See Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th Cir. 12 2009) (finding that a court need not "credit as true" improperly rejected claimant 13 14 testimony where there are outstanding issues that must be resolved before a proper 15 disability determination can be made). Because the ALJ’s decision failed to properly 16 evaluate the evidence related to Servia’s pain testimony, the credibility determination is 17 18 not supported by clear and convincing evidence. Remand will serve the useful purpose 19 of allowing the ALJ an opportunity to address the shortcomings in the analysis and 20 thereby enable this Court, should it be necessary, to discern the Commissioner’s reasons 21 for denying Servia’s claims. Brown-Hunter v. Colvin, 806 F.3d 487, 495-96 (9th Cir. 22 23 2015). 24 Accordingly, 25 IT IS ORDERED that the decision of the Commissioner is REVERSED and this 26 27 case is REMANDED for further proceedings consistent with this order. 28 14 Case 4:16-cv-00464-JR Document 21 Filed 09/27/17 Page 15 of 15 1 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment and 2 close this case. 3 Dated this 26th day of September, 2017. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

CLERK'S JUDGMENT - It is ordered that pursuant to the Court's Order filed September 27, 2017, the decision of the Commissioner of Social Security is reversed, and this case is remanded to the Social Security Administration for further proceedings consistent with the Order.

Case 4:16-cv-00464-JR Document 22 Filed 09/27/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Joseph Servia, NO. CV-16-00464-TUC-JR 10 Plaintiff, JUDGMENT IN A CIVIL CASE 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Decision by Court. This action came for consideration before the Court. The 16 issues have been considered and a decision has been rendered. 17 IT IS ORDERED AND ADJUDGED that pursuant to the Court’s Order filed 18 September 27, 2017, the decision of the Commissioner of Social Security is reversed, and 19 this case is remanded to the Social Security Administration for further proceedings 20 consistent with the Order. 21 Brian D. Karth District Court Executive/Clerk of Court 22 23 September 27, 2017 s/K Hughes 24 By Deputy Clerk 25 26 27 28

First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, Opposed by Joseph Servia.

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Joseph Servia 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Joseph Servia, 13 14 Plaintiff, Civil No. 4-16-cv-00464-JR 15 16 vs. MOTION FOR ATTORNEY'S 17 FEES PURSUANT TO THE 18 Carolyn W. Colvin, Acting EQUAL ACCESS TO JUSTICE Commissioner of Social Security, ACT, 28 U.S.C.A. § 2412 (WEST) 19 20 Defendant 21 22 PLAINTIFF'S MOTION FOR ATTORNEY'S FEES PURSUANT TO THE 23 EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C.A. § 2412 (WEST) 24 25 COUNSEL: 26 PLEASE TAKE NOTICE that upon the annexed affirmation of Howard 27 D. Olinsky, attorney for the plaintiff, and other papers, the plaintiff will make a 28 Page 1 1 motion before Hon. Jacqueline M. Rateau, at Evo A. DeConcini U.S. Courthouse, 2 Suite 6650, 405 West Congress Street, Tuscon, AZ 85701 on a date to be set by 3 4 the court, for an order: 5 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,010.16, and 6 7 2. Awarding Expenses in the amount of $16.62; and 8 3. If the Plaintiff has no debt registered with the Department of Treasury 9 subject to offset that the fees be made payable to the attorney. 10 11 Plaintiff, by his attorney, Howard D. Olinsky moves the court for an award to be 12 13 paid by the Defendant under the Equal Access to Justice Act, 28 U.S.C.A. § 2412. 14 15 Plaintiff may receive an award under the Equal Access to Justice Act because he is 16 17 the prevailing party, is an individual whose net worth did not exceed two million 18 dollars when the action was filed, and the position of the United States in this 19 litigation and/or at the agency was not substantially justified. Although the burden 20 21 of proof on substantial justification is on the government, Plaintiff's supporting 22 memorandum briefly addresses this issue. 23 24 25 There are no special circumstances in this case which make an award under the 26 EAJA unjust. 27 28 Page 2 1 This motion is supported by an affirmation of Plaintiff's attorney, attached time 2 and cost records and an Affidavit and Waiver of Direct Payment by the plaintiff. 3 4 5 Executed this December 26, 2017 6 Respectfully submitted, 7 8 /s/ Howard D. Olinsky Howard D. Olinsky, Esq. 9 Admitted Pro Hac Vice 10 Attorney for Plaintiff Email: fedct@windisability.com 11 12 To: Jason S. Leonardo, Esq. Acting United States Attorney 13 Sarah Moum, Esq. 14 Special Assistant United States Attorney 15 Office of the General Counsel Social Security Administration 16 701 Fifth Avenue, Suite 2900 M/S 221A 17 Seattle, WA 98104-7075 State Bar No. MN0389274 18 Telephone: (206) 615-2936 19 Facsimile: (206) 615-2531 Email: sarah.moum@ssa.gov 20 21 Attorneys for Defendant 22 23 24 25 26 27 28 Page 3

Text of Proposed Order

1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 10 11 12 Joseph Servia, Civil No. 4-16-cv-00464-JR 13 Plaintiff, 14 15 vs. (PROPOSED) ORDER AWARDING ATTORNEY'S FEES 16 PURSUANT TO THE EQUAL 17 Carolyn W. Colvin, Acting ACCESS TO JUSTICE ACT, 18 Commissioner of Social Security, 28 U.S.C. § 2412(D) 19 Defendant 20 21 (Proposed) Order Awarding Attorney's Fees 22 pursuant to the Equal Access to Justice Act, 23 28 U.S.C. § 2412(d) 24 25 Before the Court is the Motion of Plaintiff, Joseph Servia, for award of 26 attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). 27 Based on the pleadings as well as the position of the defendant commissioner, if 28 Page 1 1 any, and recognizing the Plaintiff's waiver of direct payment and assignment of 2 EAJA to his counsel, 3 4 5 IT IS HEREBY ORDERED that attorney fees in the total amount of Six 6 Thousand Ten Dollars and Sixteen Cents ($6,010.16) pursuant to the Equal Access 7 8 to Justice Act, 28 U.S.C. § 2412(d) are awarded to Plaintiff. Astrue v. Ratliff, 130 9 S.Ct. 2521 (2010). 10 11 IT IS FURTHER ORDERD that Plaintiff is awarded Sixteen Dollars and 12 13 Sixty-Two Cents ($16.62) in expenses for Certified Mail for service of Summons 14 and Complaint. 15 16 17 If the U.S. Department of the Treasury determines that Plaintiff's EAJA 18 fees are not subject to offset allowed under the Department of the Treasury's 19 Offset Program (TOPS), then the check for EAJA fees shall be made payable to 20 21 Plaintiff's attorney, Howard D. Olinsky. 22 23 Whether the check is made payable to Plaintiff or to Howard D. Olinsky, 24 25 26 27 28 Page 2 1 the check shall be mailed to Howard D. Olinsky at the following address: 2 300 South State Street 3 Suite 420 4 Syracuse, NY 13202 5 6 DATED: 7 8 9 ____________________________ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 3

AFFIDAVIT in Support re: [23] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, Opposed filed by Joseph Servia.

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Joseph Servia 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Joseph Servia, 13 14 Plaintiff, Civil No. 4-16-cv-00464-JR 15 vs. Attorney's affirmation in support of 16 Fees Pursuant to the Equal Access to 17 Justice Act, 28 U.S.C. § 2412 18 Carolyn W. Colvin, Acting 19 Commissioner of Social Security, 20 Defendant 21 22 Attorney's Affirmation in Support of Fees Pursuant to the Equal Access to 23 Justice Act, 28 U.S.C. § 2412 ________________________________________ 24 25 Howard D. Olinsky, being duly sworn deposes and states: 26 27 1. I am an attorney licensed to practice law in the State of New York, 28 admitted to practice pro hac vice before this Court. Page 4 1 2. I make this affirmation knowing that the Court will rely upon it in 2 assessing any awards under the Equal Access to Justice Act. 28 U.S.C.A. § 2412. 3 4 3. There are no special circumstances in this case which make an award 5 under the EAJA unjust. 6 4. The Court ordered on September 27, 2017 that the above-entitled 7 8 case be remanded for further proceedings, under the fourth sentence of 42 9 U.S.C.A. § 405(g) (West). 10 5. For the Equal Access to Justice Act, I am requesting an hourly rate 11 of $192.68 for attorney time through 2017. See generally, 12 13 http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 U.S.C.A 9th 14 Circuit EAJA Table. If attorney fees are calculated at this rate for 27.3 hours of 15 work performed in 2016 and 2017 they total $5,260.16. 16 17 6. I am also requesting $100.00 per hour for 7.5 hours of paralegal time 18 equaling $750.00. I am requesting $6,010.16 for Counsel Fees which include 19 attorney and paralegal time. 20 21 7. The time accounting is presented to the court in two fashions. 22 Exhibit A is the time spent by all who worked on this case in chronological 23 sequence. Exhibit B is broken down by attorneys. The attorneys involved in this 24 25 case are Howard D. Olinsky, Esq., Paul Eaglin, Esq., and Nathaniel Riley, Esq. 26 Exhibit C is broken down by paralegals. The paralegals involved in this case are 27 28 Page 5 1 Shannon Persse, Michelle Callahan, Jonnah Graser, Michael Smith, and Tamica 2 Lockwood. 3 4 8. I am requesting reimbursement of expenses of $16.62 for Certified 5 Mail for the summons and complaint to the defendant's office's as shown on 6 Exhibit D. The Supreme Court has clarified that only the items specifically listed 7 8 in 28 U.S.C. §1920 are compensable as costs. See Crawford Fitting Co. v. J. T. 9 Gibbons, Inc., 482 U.S. 437, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987). 28 10 U.S.C.A. § 1920 (West) provides: 11 A judge or clerk of any court of the United States may tax as costs the 12 13 following: 14 a.) fees of the clerk and marshal; 15 b.) fees of the court reporter for all or any part of the stenographic transcript 16 17 necessarily obtained for use in the case; 18 c.) fees and disbursements for printing and witnesses; 19 d.) fees for exemplification and copies of papers necessarily obtained for 20 21 use in the case; 22 e.) docket fees under section 1923 of this title; 23 f.) compensation of court appointed experts, compensation of interpreters, 24 25 and salaries, fees, expenses, and costs of special interpretation services under 26 section 1828 of this title. 27 28 Page 6 1 The postage fee to serve process by certified mail is reimbursable as an 2 "expense." 3 4 9. The attached records were contemporaneously created and stored in 5 the firm's Prevail Database, and are printed out and attached. The itemized time 6 represents hours spent preparing and handling this case for U.S. District Court. 7 8 Clerical time is not included in this petition or has been zeroed out. 9 Waiver of Direct Payment of EAJA Fees 10 10. Attached is an Affidavit and Waiver of Direct Payment duly 11 executed by the plaintiff (Exhibit E). With this Waiver, if Plaintiff owes a debt 12 13 that qualifies under the Treasury Offset Program (31 U.S.C.A. § 3716 (West)), any 14 payment shall be made payable to the Plaintiff and delivered to the Plaintiff's 15 attorney. If the United States Department of Treasury determines that Plaintiff 16 17 owes no debt subject to offset, the government may accept the assignment of 18 EAJA fees and pay such fees directly to the Plaintiff's attorney. Astrue v. Ratliff, 19 560 U.S. 586, 130 S. Ct. 2521, 177 L. Ed. 2d 91 (2010). 20 21 22 WHEREFORE, because all four elements of an allowable application for 23 EAJA fees have been proven, petitioner requests that the Court issue an order: 24 25 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,010.16; 26 and 27 2. Awarding Expenses in the amount of $16.62; and 28 Page 7 1 3. If the Plaintiff has no debt registered with the Department of Treasury 2 subject to offset that the fees be made payable to the attorney. 3 4 5 Executed this December 26, 2017 6 Respectfully submitted, 7 /s/ Howard D. Olinsky 8 Howard D. Olinsky, Esq. 9 Admitted Pro Hac Vice Attorney for Plaintiff 10 Email: fedct@windisability.com 11 To: Jason S. Leonardo, Esq. 12 Acting United States Attorney 13 Sarah Moum, Esq. 14 Special Assistant United States Attorney 15 Office of the General Counsel Social Security Administration 16 701 Fifth Avenue, Suite 2900 M/S 221A 17 Seattle, WA 98104-7075 State Bar No. MN0389274 18 Telephone: (206) 615-2936 19 Facsimile: (206) 615-2531 Email: sarah.moum@ssa.gov 20 21 22 Attorneys for Defendant 23 24 25 26 27 28 Page 8

Exhibit A All Professional Time

Exhibit A Ledger Servia, Joseph Date  Subject Hours Timekeeper 5/23/2016 Files received, reviewed and processed from referral source for Attorney review 0.6 Callahan, Michelle 5/23/2016 Correspondence to Client re: Prospect acknowledgment letter mailed 0.2 Callahan, Michelle 6/2/2016 Telephone call with Client re: Debt conference call, explained process 0.4 Callahan, Michelle 6/16/2016 Review decisions and evidence to determine whether to appeal case 1 Olinsky, Howard D. 6/28/2016 Telephone call to Client re: Acceptance of case and review forms - left VM 0 Callahan, Michelle 6/30/2016 FDC prospect packet prepared for Client completion 0.6 Callahan, Michelle 6/30/2016 Telephone call with Client re: Assistance with in forma pauperis application 0.4 Callahan, Michelle 6/30/2016 FDC prospect packet sent to Client via Right Signature 0.2 Callahan, Michelle 7/1/2016 FDC prospect packet returned via Right Signature, reviewed for completion 0.3 Callahan, Michelle 7/11/2016 Draft Complaint, Proposed Summons, Letter to Clerk, and Civil Cover Sheet 0.6 Olinsky, Howard D. 7/11/2016 Review motion to proceed in forma pauperis, approve for filing 0.2 Olinsky, Howard D. 7/11/2016 Federal Court -Accept Letter - New FDC Filing 0.3 Smith, Michael P. 7/11/2016 Draft motion for leave to proceed pro hac vice 0 Olinsky, Howard D. 7/12/2016 Review case assigned Hon. Jacqueline M. Rateau, research ind. rules & practices 0.3 Olinsky, Howard D. 7/13/2016 Review order granting in forma pauperis application, directing service 0.1 Olinsky, Howard D. 7/13/2016 Review scheduling order, calender deadlines on task pad 0.3 Olinsky, Howard D. 7/13/2016 Review issued summons 0.2 Olinsky, Howard D. 7/18/2016 Review order granting pro hac vice admission 0 Olinsky, Howard D. 8/5/2016 Federal Court-Service of Process-prepare service packets USAO, OGC, AG 0.6 Callahan, Michelle 8/11/2016 Review notice of request for e-notices J. Cole Hernandez 0.1 Eaglin, Paul B. 8/17/2016 Review Magistrate election form deadline 0.1 Eaglin, Paul B. 8/22/2016 Compile and file proof of service via CM / ECF 0.3 Callahan, Michelle 8/23/2016 Review service executed, confirm scheduling order calendared 0.2 Eaglin, Paul B. 8/24/2016 Review notice of appearance Sarah Moum o/b/o Carolyn Colvin 0.1 Olinsky, Howard D. 8/26/2016 Review and execute magistrate consent form 0.1 Olinsky, Howard D. 9/1/2016 Review agreement to Magistrate Judge jurisdiction 0.1 Eaglin, Paul B. 9/2/2016 Review minute order: Magistrate Judge Rateau to conduct all further proceedings 0.1 Eaglin, Paul B. 10/11/2016 Review answer to complaint 0.1 Eaglin, Paul B. 10/12/2016 Combine, strip PDF/A, OCR and live bookmark federal court transcript (478 pgs) 0.5 Lockwood, Tamica 10/13/2016 Preliminary review of transcript - assign Attorney writer 0.5 Eaglin, Paul B. 12/7/2016 Review certified administrative record, take notes, and organize facts 5.4 Riley, Nathaniel 12/8/2016 Drafting procedural section, drafting facts 6.2 Riley, Nathaniel 12/9/2016 Research issues and drafting argument 8.2 Riley, Nathaniel 12/12/2016 Senior Attorney review draft brief, suggest edits 1.1 Eaglin, Paul B. 12/12/2016 Implement suggested edits, finalize and file brief (n/c for filing) 0.6 Riley, Nathaniel 1/12/2017 Review Defendant's response brief (10 pages) 0.2 Eaglin, Paul B. 1/12/2017 Assign Attorney writer to access / write reply brief 0.2 Eaglin, Paul B. 34.80 (Type = Time) and (Client = Mr. Joseph Servia)    Date  Subject Hours Timekeeper 1/24/2017 Review response brief and record - NO REPLY WARRANTED 0.4 Riley, Nathaniel 9/28/2017 Review order remanding for futher proceedings (15 pages) 0.3 Olinsky, Howard D. 9/28/2017 Review judgment in favor of Joseph Servia 0.1 Olinsky, Howard D. 9/28/2017 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 9/28/2017 Federal Court-Remand Referral back to Referral Source 0.3 Graser, Jonnah 9/29/2017 Telephone call with client re: remand 0.2 Graser, Jonnah 12/18/2017 EAJA Preparation 1.5 Persse, Shannon 12/18/2017 Review Slips and Finalize EAJA Motion 0.5 Olinsky, Howard D. 12/26/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 34.80 (Type = Time) and (Client = Mr. Joseph Servia)   

Exhibit B Attorney Time

Exhibit B Ledger Servia, Joseph Date  Subject Hours Timekeeper 6/16/2016 Review decisions and evidence to determine whether to appeal case 1 Olinsky, Howard D. 7/11/2016 Draft Complaint, Proposed Summons, Letter to Clerk, and Civil Cover Sheet 0.6 Olinsky, Howard D. 7/11/2016 Review motion to proceed in forma pauperis, approve for filing 0.2 Olinsky, Howard D. 7/11/2016 Draft motion for leave to proceed pro hac vice 0 Olinsky, Howard D. 7/12/2016 Review case assigned Hon. Jacqueline M. Rateau, research ind. rules & practices 0.3 Olinsky, Howard D. 7/13/2016 Review order granting in forma pauperis application, directing service 0.1 Olinsky, Howard D. 7/13/2016 Review scheduling order, calender deadlines on task pad 0.3 Olinsky, Howard D. 7/13/2016 Review issued summons 0.2 Olinsky, Howard D. 7/18/2016 Review order granting pro hac vice admission 0 Olinsky, Howard D. 8/11/2016 Review notice of request for e-notices J. Cole Hernandez 0.1 Eaglin, Paul B. 8/17/2016 Review Magistrate election form deadline 0.1 Eaglin, Paul B. 8/23/2016 Review service executed, confirm scheduling order calendared 0.2 Eaglin, Paul B. 8/24/2016 Review notice of appearance Sarah Moum o/b/o Carolyn Colvin 0.1 Olinsky, Howard D. 8/26/2016 Review and execute magistrate consent form 0.1 Olinsky, Howard D. 9/1/2016 Review agreement to Magistrate Judge jurisdiction 0.1 Eaglin, Paul B. 9/2/2016 Review minute order: Magistrate Judge Rateau to conduct all further proceedings 0.1 Eaglin, Paul B. 10/11/2016 Review answer to complaint 0.1 Eaglin, Paul B. 10/13/2016 Preliminary review of transcript - assign Attorney writer 0.5 Eaglin, Paul B. 12/7/2016 Review certified administrative record, take notes, and organize facts 5.4 Riley, Nathaniel 12/8/2016 Drafting procedural section, drafting facts 6.2 Riley, Nathaniel 12/9/2016 Research issues and drafting argument 8.2 Riley, Nathaniel 12/12/2016 Senior Attorney review draft brief, suggest edits 1.1 Eaglin, Paul B. 12/12/2016 Implement suggested edits, finalize and file brief (n/c for filing) 0.6 Riley, Nathaniel 1/12/2017 Review Defendant's response brief (10 pages) 0.2 Eaglin, Paul B. 1/12/2017 Assign Attorney writer to access / write reply brief 0.2 Eaglin, Paul B. 1/24/2017 Review response brief and record - NO REPLY WARRANTED 0.4 Riley, Nathaniel 9/28/2017 Review order remanding for futher proceedings (15 pages) 0.3 Olinsky, Howard D. 9/28/2017 Review judgment in favor of Joseph Servia 0.1 Olinsky, Howard D. 12/18/2017 Review Slips and Finalize EAJA Motion 0.5 Olinsky, Howard D. 27.3 27.30 (Type = Time) and (Client = Mr. Joseph Servia) and ((Timekeeper = Eaglin, Paul B.) or (Timekeeper = Olinsky, Howard D.) or (Timekee...   

Exhibit C Paralegal Time

Exhibit C Ledger Servia, Joseph Date  Subject Hours Timekeeper 5/23/2016 Files received, reviewed and processed from referral source for Attorney review 0.6 Callahan, Michelle 5/23/2016 Correspondence to Client re: Prospect acknowledgment letter mailed 0.2 Callahan, Michelle 6/2/2016 Telephone call with Client re: Debt conference call, explained process 0.4 Callahan, Michelle 6/28/2016 Telephone call to Client re: Acceptance of case and review forms - left VM 0 Callahan, Michelle 6/30/2016 FDC prospect packet prepared for Client completion 0.6 Callahan, Michelle 6/30/2016 Telephone call with Client re: Assistance with in forma pauperis application 0.4 Callahan, Michelle 6/30/2016 FDC prospect packet sent to Client via Right Signature 0.2 Callahan, Michelle 7/1/2016 FDC prospect packet returned via Right Signature, reviewed for completion 0.3 Callahan, Michelle 7/11/2016 Federal Court -Accept Letter - New FDC Filing 0.3 Smith, Michael P. 8/5/2016 Federal Court-Service of Process-prepare service packets USAO, OGC, AG 0.6 Callahan, Michelle 8/22/2016 Compile and file proof of service via CM / ECF 0.3 Callahan, Michelle 10/12/2016 Combine, strip PDF/A, OCR and live bookmark federal court transcript (478 pgs) 0.5 Lockwood, Tamica 9/28/2017 Correspondence to Client re: FDC Remand 0.2 Graser, Jonnah 9/28/2017 Federal Court-Remand Referral back to Referral Source 0.3 Graser, Jonnah 9/29/2017 Telephone call with client re: remand 0.2 Graser, Jonnah 12/18/2017 EAJA Preparation 1.5 Persse, Shannon 12/26/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 7.50 (Type = Time) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Gifford, Kyrsten) or (Timekeeper = Graser, Jonnah) or (Timek...   

Exhibit D Expenses

Exhibit D Ledger Servia, Joseph Date - I Subject 8 / 5 / 2016 Certified mail expense Summons and Complaint packets to Defendants Amount Timekeeper $ 16. 62 Callahan, Michelle $ 16. 62

Exhibit E Affirmation and Waiver of Direct Payment of EAJA Fees

Exhibit E UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA (TUSCON DIVISION) -------------------------------------------------------------- MR. JOSEPH E. SERVIA, AFFIRMATION AND WAIVER OF DIRECT PAYMENT Plaintiff, OF EAJA FEES v. Civil Action No.: _________________ CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------------------------- Mr. Joseph E. Servia, hereby states the following: 1. I am the Plaintiff in the above-captioned matter. 2. That I have retained Olinsky Law Group as my attorney for the above-captioned matter. 3. At the time that this action was begun, my net worth was less than $2,000,000.00. 4. If my case is remanded by the Federal Court, either by stipulation or order, my attorney may file for attorney's fees pursuant to the Equal Access to Justice Act (EAJA). I understand that the EAJA fees are paid by the Federal Government and do not come from any back benefits owed to me by the Social Security Administration. 5. I hereby agree to waive direct payment of the EAJA fees and assign said fees to be paid directly to my attorney. 6. I understand that my attorney may still petition the Administration for legal fees for his or her work before the Administration that will be paid from my back benefits. As the Plaintiff in this case, I hereby declare and affirm under penalty of perjury that the information above is true and correct. Executed on June 30, 2016. __________________________ Mr. Joseph E. Servia Plaintiff

Memorandum in Support

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Joseph Servia 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Joseph Servia, 13 14 Plaintiff, Civil No. 4-16-cv-00464-JR 15 16 vs. MEMORANDUM IN SUPPORT OF 17 PLAINTIFF'S PETITION FOR 18 Carolyn W. Colvin, Acting COUNSEL FEES ALLOWANCE Commissioner of Social Security, UNDER EQUAL ACCESS TO 19 JUSTICE ACT, 28 U.S.C. § 2412 20 Defendant 21 22 Memorandum in Support of Plaintiff's Petition for Counsel Fees 23 Allowance Under Equal Access to Justice Act 24 1. This is a memorandum in support of a petition for an award of 25 Counsel Fees under the Equal Access to Justice Act 28 U.S.C.A. § 2412 "EAJA." 26 27 28 Page 9 1 2. An EAJA award is available to a "prevailing party" in a case against 2 the Federal Government, including Social Security cases, in the following 3 4 instances: 5 (a) When and if the plaintiff actually "prevails"; 6 (b) The Government's position in litigation is "not substantially 7 8 justified"; 9 (c) Plaintiff is a party whose net assets are worth less than two 10 million dollars; and 11 (d) The case has concluded with a "final order" which is non- 12 13 appealable, or will not be appealed. 14 3. Addressing these elements in reverse order, it is clear that the 15 Plaintiff has met the burden necessary to receive EAJA fees. 16 17 (a) Plaintiff's net worth did not exceed $2,000,000.00 when this 18 action was filed. 19 (b) After service of the summons and complaint, and filing of 20 21 briefs by both parties, the Court issued a Decision and Order remanding to the 22 Commissioner for further proceedings under sentence four 42 U.S.C.A. § 405(g). 23 (c) Judgment was entered on September 27, 2017. The Judgment 24 25 has not been appealed. 26 (d) Plaintiff has prevailed because the District Court remanded 27 28 Page 10 1 the case under sentence four of 42 U.S.C.A. § 405(g). Shalala v. Schaefer, 509 2 U.S. 292, 113 S. Ct. 2625, 125 L. Ed. 2d 239 (1993). 3 4 4. The commissioner was not substantially justified. As the U. S. 5 Supreme Court has held, "the required 'not substantially justified' allegation imposes no 6 proof burden on the fee applicant. It is, as its text conveys, nothing more than an 7 8 allegation or pleading requirement. The burden of establishing 'that the position of the 9 United States was substantially justified' … must be shouldered by the Government." 10 Scarborough v. Principi, 541 U.S. 401, 124 S. Ct. 1856, 158 L. Ed. 2d 674 (2004) 11 While the fee applicant such as Plaintiff is required to "show" three of the 12 13 four elements—prevailing party status, financial eligibility, and amount sought— 14 Plaintiff need only "to allege" that the position of the government is not 15 substantially justified. Id. 16 17 WHEREFORE, because all four elements of an allowable application for 18 EAJA fees have been proven, petitioner requests that the Court issue an order: 19 20 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,010.16; 21 and 22 2. Awarding Expenses in the amount of $16.62; and 23 3. If the Plaintiff has no debt registered with the Department of Treasury 24 25 subject to offset that the fees be made payable to the attorney. 26 27 28 Page 11 1 Executed this December 26, 2017 2 3 Respectfully submitted, 4 /s/ Howard D. Olinsky 5 Howard D. Olinsky, Esq. 6 Admitted Pro Hac Vice Attorney for Plaintiff 7 Email: fedct@windisability.com 8 To: Jason S. Leonardo, Esq. 9 Acting United States Attorney 10 Sarah Moum, Esq. 11 Special Assistant United States Attorney Office of the General Counsel 12 Social Security Administration 13 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 14 State Bar No. MN0389274 15 Telephone: (206) 615-2936 Facsimile: (206) 615-2531 16 Email: sarah.moum@ssa.gov 17 Attorneys for Defendant 18 19 20 21 22 23 24 25 26 27 28 Page 12

Certificate of Service

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Joseph Servia 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Joseph Servia, 13 14 Plaintiff, Civil No. 4-16-cv-00464-JR 15 vs. CERTIFICATE OF SERVICE 16 17 18 Carolyn W. Colvin, Acting 19 Commissioner of Social Security, 20 Defendant 21 22 Certificate of Service 23 I certify that I have electronically moved for EAJA fees with the Clerk of 24 25 the District Court using the CM/ECF system, which sent notification of such filing 26 to: 27 28 Page 15 1 To: Jason S. Leonardo, Esq. 2 Acting United States Attorney 3 Sarah Moum, Esq. Special Assistant United States Attorney 4 Office of the General Counsel 5 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 6 Seattle, WA 98104-7075 7 State Bar No. MN0389274 Telephone: (206) 615-2936 8 Facsimile: (206) 615-2531 9 Email: sarah.moum@ssa.gov 10 11 Attorneys for Defendant 12 13 December 26, 2017 14 15 /s/ Howard D. Olinsky Howard D. Olinsky, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 16

Certificate of Local Rule 54.2 (D) (1)

1 Howard D. Olinsky 2 Admitted Pro Hac Vice Olinsky Law Group 3 One Park Place 4 300 South State Street Suite 420 5 Syracuse, NY 13202 6 NY State Bar #:2044865 Telephone: (315) 701-5780 7 Facsimile: (315) 701-5781 8 Email: fedct@windisability.com 9 Attorney for Plaintiff Joseph Servia 10 IN THE UNITED STATES DISTRICT COURT 11 DISTRICT OF ARIZONA 12 Joseph Servia, 13 14 Plaintiff, Civil No. 4-16-cv-00464-JR 15 16 vs. CERTIFICATE OF LOCAL RULE 17 54.2 (D) (1) 18 Carolyn W. Colvin, Acting 19 Commissioner of Social Security, 20 Defendant 21 22 Certificate of Local Rule 54.2 (D) (1) 23 I certify that I have conferred with Counsel for Defendant via emails on 24 25 December 26, 2017 regarding Plaintiff's Motion for Attorney's Fees Pursuant to 26 the Equal Access to Justice Act. Opposing counsel presently opposes Plaintiff's 27 request. 28 Page 13 1 2 To: Jason S. Leonardo, Esq. Acting United States Attorney 3 Sarah Moum, Esq. 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. MN0389274 8 Telephone: (206) 615-2936 9 Facsimile: (206) 615-2531 Email: sarah.moum@ssa.gov 10 11 Attorneys for Defendant 12 13 December 26, 2017 14 15 /s/ Howard D. Olinsky Howard D. Olinsky, Esq. 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 14

RESPONSE to Motion re: [23] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, Opposed filed by Commissioner of Social Security Administration.

1 Elizabeth A. Strange First Assistant United States Attorney 2 District of Arizona 3 Mike Johns 4 Assistant United States Attorney 5 Sarah Moum 6 Special Assistant United States Attorney 7 Office of the General Counsel Social Security Administration 8 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 9 State Bar No. WA42086 10 Fax: (206) 615-2531 sarah.moum@ssa.gov 11 Telephone: (206) 615-2936 12 Of Attorneys for the Defendant 13 IN THE UNITED STATES DISTRICT COURT 14 DISTRICT OF ARIZONA 15 Joseph Servia, 16 No. CV-16-464-TUC-JR 17 Plaintiff, 18 DEFENDANT'S RESPONSE TO vs. PLAINTIFF'S MOTION FOR 19 ATTORNEY FEES Nancy A. Berryhill, 20 Acting Commissioner of Social Security, 21 Defendant. 22 23 Defendant, the Commissioner of Social Security, files this response to Plaintiff's 24 request for an award of attorney's fees pursuant to 28 U.S.C. § 2412 as set forth in 25 Plaintiff's Motion (Docket #23). The Commissioner has given substantive consideration 26 27 to the merits of Plaintiff's request and found no basis to object. Therefore, Defendant has 28 no objection to this request and will defer to the Court's assessment of the matter. 1 DATED this 9th day of January 2018. 2 Respectfully submitted, 3 ELIZABETH A. STRANGE 4 First Assistant United States Attorney 5 District of Arizona 6 MIKE JOHNS Assistant United States Attorney 7 8 s/ Sarah Moum SARAH MOUM 9 Special Assistant United States Attorney 10 Of Counsel for the Defendant: 11 12 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 13 Office of the General Counsel, Region X 14 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 15 16 17 CERTIFICATE OF SERVICE 18 19 I hereby certify that the foregoing Defendant's Response to Plaintiff's Motion for 20 Attorney Fees was filed with the Clerk of the Court on January 9, 2018, using the 21 CM/ECF system which will send notification of such filing to the following: Howard D. 22 23 Olinsky. 24 25 s/ Sarah Moum SARAH MOUM 26 Special Assistant U.S. Attorney Office of the General Counsel 27 28 2

ORDER AWARDING ATTORNEY'S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 USC § 2412(D) granting [23] Motion for Attorney Fees. IT IS ORDERED that attorney fees in the total amount of $6,010.16 pursuant to the Equal Access to Justice Act, 28 USC § 2412(d) are awarded to Plaintiff. Plaintiff is awarded $16.62 in expenses for Certified Mail for service of Summons and Complaint. Whether the check is made payable to Plaintiff or to Howard D. Olinsky, check shall be mailed to Howard D. Olinsky at: 300 South State Street, Suite 420, Syracuse, NY 13202. (See attached PDF for complete information). Signed by Magistrate Judge Jacqueline M Rateau on 1/10/18.

1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 DISTRICT OF ARIZONA 11 12 Joseph Servia, 13 Civil No. 4-16-cv-00464-JR 14 Plaintiff, 15 vs. ORDER AWARDING 16 ATTORNEY'S FEES 17 PURSUANT TO THE EQUAL Carolyn W. Colvin, Acting ACCESS TO JUSTICE ACT, 18 Commissioner of Social Security, 28 U.S.C. § 2412(D) 19 20 Defendant 21 Order Awarding Attorney's Fees 22 23 pursuant to the Equal Access to Justice Act, 24 28 U.S.C. § 2412(d) 25 Before the Court is the Motion of Plaintiff, Joseph Servia, for award of 26 27 attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). 28 Based on the pleadings as well as the position of the defendant commissioner, and Page 1 1 recognizing the Plaintiff's waiver of direct payment and assignment of EAJA to 2 his counsel, 3 4 IT IS HEREBY ORDERED that attorney fees in the total amount of Six 5 Thousand Ten Dollars and Sixteen Cents ($6,010.16) pursuant to the Equal Access 6 to Justice Act, 28 U.S.C. § 2412(d) are awarded to Plaintiff. 7 8 IT IS FURTHER ORDERED that Plaintiff is awarded Sixteen Dollars and 9 Sixty-Two Cents ($16.62) in expenses for Certified Mail for service of Summons 10 and Complaint. 11 If the U.S. Department of the Treasury determines that Plaintiff's EAJA 12 13 fees are not subject to offset allowed under the Department of the Treasury's 14 Offset Program (TOPS), then the check for EAJA fees shall be made payable to 15 Plaintiff's attorney, Howard D. Olinsky. 16 17 Whether the check is made payable to Plaintiff or to Howard D. Olinsky, 18 19 20 21 22 23 24 25 26 27 28 Page 2 1 the check shall be mailed to Howard D. Olinsky at the following address: 2 300 South State Street 3 Suite 420 4 Syracuse, NY 13202 5 Dated this 10th day of January, 2018. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 3

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Description
1
07/11/2016
COMPLAINT filed by Joseph Servia.
1
Civil Cover Sheet
2
Letter)(FKD
2 Attachments
2
07/11/2016
APPLICATION for Leave to Proceed In Forma Pauperis by Joseph Servia.
3
07/11/2016
SUMMONS Submitted by Joseph Servia.
1
Summons
2
Summons)(FKD
2 Attachments
4
07/11/2016
This case has been assigned to the Honorable Jacqueline M Rateau. All future pleadings or documents should bear the correct case number: 4:16-CV-00464-JR. Magistrate Election form attached.
1
consent form)(FKD
1 Attachment
5
07/11/2016
MOTION for Admission Pro Hac Vice as to attorney Howard D. Olinsky by Joseph Servia.
1
Letter to Clerk
1 Attachment
6
07/12/2016
ORDER granting 2 Motion for Leave to Proceed In Forma Pauperis. Plaintiff may proceed without prepayment of costs or fees or the necessity of giving security therefor. Plaintiff shall be responsible for service by waiver or of the summons and complaint. Signed by Magistrate Judge Jacqueline M Rateau on 7/12/2016.
7
07/12/2016
SCHEDULING ORDER: The parties must fully comply with the following deadlinesand procedures. Signed by Magistrate Judge Jacqueline M Rateau on 7/12/2016. (See Order for details)
8
07/13/2016
Summons Issued as to SSA Office of General Counsel, U.S. Attorney and U.S. Attorney General.
07/15/2016
PRO HAC VICE FEE PAID. $ 35, receipt number PHX174081 as to Howard D Olinsky. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Text entry; no document attached.)
9
07/15/2016
ORDER pursuant to General Order 09-08 granting 5 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. Counsel is advised that they are limited to two (2) additional e-mail addresses in their District of Arizona User Account. (BAS) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)
10
08/01/2016
Magistrate Election Form Deadline.
1
consent form)(FKD
1 Attachment
08/11/2016
NOTICE of request for e-notices by J. Cole Hernandez. (Text entry; no document attached.)
11
08/16/2016
Magistrate Election Form Deadline.
1
consent form)(FKD
1 Attachment
12
08/22/2016
SERVICE EXECUTED filed by Joseph Servia: Return of Service re: Summons, Complaint and Scheduling Order upon US Attorney's Office, Office of General Counsel, Attorney General on 8/10/2016.
13
08/23/2016
NOTICE OF ATTORNEY APPEARANCE: Sarah Moum appearing for Carolyn W Colvin.
14
08/29/2016
Agreement to Magistrate Judge Jurisdiction. Party agrees to Magistrate Judge Jurisdiction. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
15
09/01/2016
Agreement to Magistrate Judge Jurisdiction. Party agrees to Magistrate Judge Jurisdiction. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
16
09/01/2016
Minute Order: In accordance with 28 USC 636(c), all parties have voluntarily consented to have Magistrate Judge Rateau conduct all further proceedings in this case, including trial and entry of final judgment, and conduct all post-judgment proceedings, with direct review by the Ninth Circuit Court of Appeals, if an appeal is filed. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.
17
10/11/2016
ANSWER to 1 Complaint by Carolyn W Colvin.
18
10/11/2016
NOTICE of Filing Certified Copy of Administrative Transcript re: 17 Answer to Complaint filed by Carolyn W Colvin.
1
001 Certification Page
2
002 Court Transcript Index
3
003 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable
4
004 Payment Documents and Decisions
5
005 Jurisdictional Documents and Notices
6
006 Non Disability Related Development
7
007 Disability Related Development
8
008 Medical Records
8 Attachments
19
12/12/2016
OPENING BRIEF by Joseph Servia.
1
Certificate of Service
1 Attachment
20
01/11/2017
RESPONSE BRIEF by Carolyn W Colvin.
21
09/27/2017
ORDER: the decision of the Commissioner is REVERSED and this case is REMANDED for further proceedings consistent with this order. It is further ordered that the Clerk of Court shall enter judgment and close this case. Signed by Magistrate Judge Jacqueline M Rateau on 9/26/17. (See attached PDF for complete information.)
22
09/27/2017
CLERK'S JUDGMENT - It is ordered that pursuant to the Court's Order filed September 27, 2017, the decision of the Commissioner of Social Security is reversed, and this case is remanded to the Social Security Administration for further proceedings consistent with the Order.
23
12/26/2017
First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, Opposed by Joseph Servia.
1
Text of Proposed Order
1 Attachment
24
12/26/2017
AFFIDAVIT in Support re: [23] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, Opposed filed by Joseph Servia.
1
Exhibit A All Professional Time
2
Exhibit B Attorney Time
3
Exhibit C Paralegal Time
4
Exhibit D Expenses
5
Exhibit E Affirmation and Waiver of Direct Payment of EAJA Fees
6
Memorandum in Support
7
Certificate of Service
8
Certificate of Local Rule 54.2 (D) (1)
8 Attachments
25
01/09/2018
RESPONSE to Motion re: [23] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, Opposed filed by Commissioner of Social Security Administration.
26
01/11/2018
ORDER AWARDING ATTORNEY'S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 USC § 2412(D) granting [23] Motion for Attorney Fees. IT IS ORDERED that attorney fees in the total amount of $6,010.16 pursuant to the Equal Access to Justice Act, 28 USC § 2412(d) are awarded to Plaintiff. Plaintiff is awarded $16.62 in expenses for Certified Mail for service of Summons and Complaint. Whether the check is made payable to Plaintiff or to Howard D. Olinsky, check shall be mailed to Howard D. Olinsky at: 300 South State Street, Suite 420, Syracuse, NY 13202. (See attached PDF for complete information). Signed by Magistrate Judge Jacqueline M Rateau on 1/10/18.
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