Shaffer v. Commissioner of Social Security Administration
Court Docket Sheet

District of Arizona

2:2016-cv-04047 (azd)

NOTICE OF ATTORNEY APPEARANCE: Ryan Lu appearing for Commissioner of Social Security Administration.

Case 2:16-cv-04047-DLR Document 11 Filed 02/07/17 Page 1 of 3 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Ryan Lu 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. OR105902 8 Fax: (206) 615-2531 ryan.lu@ssa.gov 9 Telephone: (206) 615-2034 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Scott Robert Shaffer, No. CV-16-04047-PHX-DLR 14 15 Plaintiff, 16 DEFENDANT’S NOTICE OF vs. APPEARANCE 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 PLEASE TAKE NOTICE that Defendant Commissioner of Social Security 22 23 hereby notifies Plaintiff and this Court that the following Special Assistant U.S. 24 Attorney will appear as counsel of record in the above-captioned case: 25 26 27 28 Case 2:16-cv-04047-DLR Document 11 Filed 02/07/17 Page 2 of 3 1 Ryan Lu Special Assistant United States Attorney 2 Office of the General Counsel 3 Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A 4 Seattle, WA 98104-7075 5 State Bar No. OR105902 Fax: (206) 615-2531 6 ryan.lu@ssa.gov Telephone: (206) 615-2034 7 8 DATED this 7th day of February 2017. 9 Respectfully submitted, 10 11 ELIZABETH A. STRANGE Acting United States Attorney 12 District of Arizona 13 s/Ryan Lu 14 RYAN LU 15 Special Assistant United States Attorney 16 Of Counsel for the Defendant: 17 MATHEW W. PILE 18 Acting Regional Chief Counsel, Social Security Administration Office of the General Counsel, Region X 19 701 Fifth Avenue, Suite 2900 M/S 221A 20 Seattle, WA 98104-7075 21 22 23 24 25 26 27 28 2 Case 2:16-cv-04047-DLR Document 11 Filed 02/07/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Notice of Appearance was filed with the Clerk 3 of the Court on February 7, 2017, using the CM/ECF system which will send notification 4 of such filing to the following: Howard D Olinsky. 5 6 s/Megan Moore 7 MEGAN MOORE 8 Paralegal Specialist Office of the General Counsel 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

First MOTION for Extension of Time to File Answer re: [1] Complaint Unopposed by Commissioner of Social Security Administration.

Case 2:16-cv-04047-DLR Document 12 Filed 02/07/17 Page 1 of 3 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Ryan Lu 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. OR105902 8 Fax: (206) 615-2531 ryan.lu@ssa.gov 9 Telephone: (206) 615-2034 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Scott Robert Shaffer, 14 No. CV-16-04047-PHX-DLR 15 Plaintiff, 16 DEFENDANT’S MOTION FOR vs. EXTENSION OF TIME TO ANSWER 17 Nancy A. Berryhill,1 18 (First Request) Acting Commissioner of Social Security, 19 Defendant. 20 21 Upon the records and files herein and the following declaration, Defendant moves 22 for an order allowing additional time, through March 9, 2017, in which to file a Response 23 to Plaintiff’s Complaint in the above-entitled action, pursuant to Fed. R. Civ. P. 6(b)(1). 24 25 26 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. 27 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the defendant in 28 this suit. No further action needs to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Case 2:16-cv-04047-DLR Document 12 Filed 02/07/17 Page 2 of 3 1 Plaintiff’s counsel has been contacted and has no objection to this request. 2 3 4 5 DATED this 7th day of February 2017. 6 Respectfully submitted, 7 8 ELIZABETH A. STRANGE Acting United States Attorney 9 District of Arizona 10 s/Ryan Lu 11 RYAN LU 12 Special Assistant United States Attorney 13 14 Of Counsel for the Defendant: 15 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 16 Office of the General Counsel, Region X 17 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 18 19 20 21 22 23 24 25 26 27 28 2 Case 2:16-cv-04047-DLR Document 12 Filed 02/07/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Defendant’s Motion for Extension of 3 Time to Answer was filed with the Clerk of the Court on February 7, 2017, using 4 5 the CM/ECF system, which will send notification of such filing to the following: 6 Howard Olinsky. 7 8 s/Megan Moore 9 MEGAN MOORE Paralegal Specialist 10 Office of the General Counsel 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Text of Proposed Order

Case 2:16-cv-04047-DLR Document 12-1 Filed 02/07/17 Page 1 of 1 1 2 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 3 4 Scott Robert Shaffer, No. CV-16-04047-PHX-DLR 5 Plaintiff, 6 ORDER FOR EXTENSION OF TIME vs. 7 TO FILE A RESPONSE TO PLAINTIFF’S COMPLAINT 8 Nancy A. Berryhill,1 Acting Commissioner of Social Security, 9 10 Defendant. 11 Based on Defendant’s Motion, it is hereby ORDERED that the Responsive Due 12 13 Date shall be amended as follows: 14 Defendant shall have up to and including March 9, 2017, to file a Response to 15 Plaintiff’s Complaint. 16 17 IT IS SO ORDERED this _________ day of, 2017. 18 19 20 21 22 23 24 25 26 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. 27 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the defendant in 28 this suit. No further action needs to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

DECLARATION of Ryan Lu re: [12] First MOTION for Extension of Time to File Answer re: [1] Complaint Unopposed by Defendant Commissioner of Social Security Administration.

Case 2:16-cv-04047-DLR Document 13 Filed 02/07/17 Page 1 of 3 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Ryan Lu 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. OR105902 8 Fax: (206) 615-2531 ryan.lu@ssa.gov 9 Telephone: (206) 615-2034 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Scott Robert Shaffer, 14 No. CV-16-04047-PHX-DLR 15 Plaintiff, 16 vs. DECLARATION OF RYAN LU 17 Nancy A. Berryhill,1 18 Acting Commissioner of Social Security, 19 Defendant. 20 21///22///23///24 25 26 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. 27 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the defendant in 28 this suit. No further action needs to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Case 2:16-cv-04047-DLR Document 13 Filed 02/07/17 Page 2 of 3 1 I, Ryan Lu, declare as follows: 2 1. I am an Assistant Regional Counsel for the Social Security Administration, Office 3 of the General Counsel, in Seattle, Washington, and a Special Assistant U. S. 4 5 Attorney for the District of Arizona. 6 2. The Office of the General Counsel is assigned to defend the Commissioner of 7 Social Security in this matter. 8 3. I have not previously requested an extension of time in this matter. 9 10 4. Defendant’s answer is currently due to be filed by Tuesday, February 7, 2017. 11 5. In accordance with 42 U.S.C. § 405(g), the Commissioner files as part of the 12 Answer a certified copy of the transcript of the record, including the evidence 13 14 upon which the findings and decisions complained of are based. The United 15 States Attorney’s Office has not yet received the transcript of the record from the 16 Social Security Appeals Council. We have followed-up with the Appeals Council 17 18 but need to wait for the transcript to make sure that the record provided to the 19 Court and to Complainant is complete and accurate. 20 6. For this reason, I request an extension of time up and including March 9, 2017, to 21 file Defendant’s answer. 22 23 7. Plaintiff’s counsel does not object to the extension request. 24 Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true 25 and correct. 26 27 28 2 Case 2:16-cv-04047-DLR Document 13 Filed 02/07/17 Page 3 of 3 1 Executed this 7th day of February 2017. 2 s/Ryan Lu 3 RYAN LU Special Assistant U.S. Attorney 4 5 6 7 CERTIFICATE OF SERVICE 8 9 I hereby certify that the foregoing Declaration of Ryan Lu was filed with 10 the Clerk of the Court on February 7, 2017, using the CM/ECF system, which will 11 send notification of such filing to the following: Howard Olinsky. 12 13 14 s/Megan Moore MEGAN MOORE 15 Paralegal Specialist 16 Office of the General Counsel 17 18 19 20 21 22 23 24 25 26 27 28 3

ORDER granting [12] Motion for Extension of Time to Answer. Commissioner of Social Security Administration answer due 3/9/2017. Signed by Judge Douglas L Rayes on 2/8/2017.

Case 2:16-cv-04047-DLR Document 14 Filed 02/08/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Scott Robert Shaffer, No. CV-16-04047-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 The Court has reviewed Defendant’s Motion for Extension of Time to Answer. 17 (Doc. 12.). For good cause shown, 18 IT IS ORDERED extending the time for Defendant to file a Response to 19 Plaintiff’s Complaint to and including March 9, 2017. 20 Dated this 8th day of February, 2017. 21 22 23 24 Douglas L. Rayes 25 United States District Judge 26 27 28

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

Case 2:16-cv-04047-DLR Document 15 Filed 03/09/17 Page 1 of 4 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Ryan Lu 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. OR105902 8 Fax: (206) 615-2531 ryan.lu@ssa.gov 9 Telephone: (206) 615-2034 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Scott Robert Shaffer, 14 No. CV-16-04047-PHX-DLR 15 Plaintiff, 16 ANSWER vs. 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 Defendant, in answer to Plaintiff’s Complaint, admits, denies, and alleges as 22 follows: 23 1. Defendant admits the allegations in paragraphs 1 and 2. 24 25 2. With respect to paragraph 3, Defendant admits that the Appeals Council 26 issued a notice on September 23, 2016, denying Plaintiff’s request for review, and that 27 Plaintiff filed the Complaint within the appropriate time period. Defendant neither 28 Case 2:16-cv-04047-DLR Document 15 Filed 03/09/17 Page 2 of 4 1 admits nor denies that the copy of the Appeals Council’s notice, which Plaintiff attached 2 to the Complaint as Exhibit A, is a correct or complete copy of that document. 3 3. With respect to paragraph 4, Defendant denies knowledge or information 4 5 sufficient to form a belief as to the truth of Plaintiff’s residence, and neither admits nor 6 denies the accuracy of the last four digits of Plaintiff’s social security number. 7 4. Defendant admits the allegations in paragraph 5 during the time the 8 Complaint was filed, but clarifies that Nancy Berryhill is now the Acting Commissioner 9 10 of Social Security. 11 5. Paragraphs 6, 7, and 8 call for legal conclusions to which no response is 12 required. To the extent the Court requires a response, Defendant denies the allegations. 13 14 6. The remainder of the Complaint is a prayer for relief to which no response 15 is necessary. To the extent that a response is required, Defendant denies the allegations 16 and states that Plaintiff is not entitled to judgment or to the relief sought. 17 18 7. With respect to Plaintiff’s request for attorney fees under the Equal Access 19 to Justice Act, should Plaintiff prevail and file an application for fees against the United 20 States in accordance with the requirements of 28 U.S.C. § 2412, enacted as part of the 21 Equal Access to Justice Act, the Commissioner reserves the right to oppose any award 22 23 under this statute. 24 8. Defendant denies all allegations of the Complaint not specifically admitted 25 or clarified. 26 27 9. In accordance with 42 U.S.C. § 405(g), Defendant files as part of the 28 answer a certified copy of the transcript of the record including the evidence upon which 2 Case 2:16-cv-04047-DLR Document 15 Filed 03/09/17 Page 3 of 4 1 Defendant based the challenged decision. 2 WHEREFORE, Defendant prays for judgment dismissing the Complaint, with 3 costs, and for judgment in accordance with 42 U.S.C. § 405(g), affirming Defendant’s 4 5 decision. 6 7 DATED this 9th day of March 2017. 8 Respectfully submitted, 9 10 ELIZABETH A. STRANGE Acting United States Attorney 11 District of Arizona 12 s/Ryan Lu 13 RYAN LU 14 Special Assistant United States Attorney 15 Of Counsel for the Defendant: 16 17 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 18 Office of the General Counsel, Region X 19 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 20 21 22 23 24 25 26 27 28 3 Case 2:16-cv-04047-DLR Document 15 Filed 03/09/17 Page 4 of 4 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Answer was filed with the Clerk of the 3 4 Court on March 9, 2017, using the CM/ECF system, which will send notification 5 of such filing to the following: Howard D. Olinsky. 6 7 s/Timothy Shaw 8 TIMOTHY SHAW 9 Paralegal Specialist Office of the General Counsel 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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

Case 2:16-cv-04047-DLR Document 16 Filed 03/09/17 Page 1 of 4 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Ryan Lu 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. OR105902 8 Fax: (206) 615-2531 ryan.lu@ssa.gov 9 Telephone: (206) 615-2034 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Scott Robert Shaffer, 14 No. CV-16-04047-PHX-DLR 15 Plaintiff, 16 ANSWER vs. 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 Defendant, in answer to Plaintiff’s Complaint, admits, denies, and alleges as 22 follows: 23 1. Defendant admits the allegations in paragraphs 1 and 2. 24 25 2. With respect to paragraph 3, Defendant admits that the Appeals Council 26 issued a notice on September 23, 2016, denying Plaintiff’s request for review, and that 27 Plaintiff filed the Complaint within the appropriate time period. Defendant neither 28 Case 2:16-cv-04047-DLR Document 16 Filed 03/09/17 Page 2 of 4 1 admits nor denies that the copy of the Appeals Council’s notice, which Plaintiff attached 2 to the Complaint as Exhibit A, is a correct or complete copy of that document. 3 3. With respect to paragraph 4, Defendant denies knowledge or information 4 5 sufficient to form a belief as to the truth of Plaintiff’s residence, and neither admits nor 6 denies the accuracy of the last four digits of Plaintiff’s social security number. 7 4. Defendant admits the allegations in paragraph 5 during the time the 8 Complaint was filed, but clarifies that Nancy Berryhill is now the Acting Commissioner 9 10 of Social Security. 11 5. Paragraphs 6, 7, and 8 call for legal conclusions to which no response is 12 required. To the extent the Court requires a response, Defendant denies the allegations. 13 14 6. The remainder of the Complaint is a prayer for relief to which no response 15 is necessary. To the extent that a response is required, Defendant denies the allegations 16 and states that Plaintiff is not entitled to judgment or to the relief sought. 17 18 7. With respect to Plaintiff’s request for attorney fees under the Equal Access 19 to Justice Act, should Plaintiff prevail and file an application for fees against the United 20 States in accordance with the requirements of 28 U.S.C. § 2412, enacted as part of the 21 Equal Access to Justice Act, the Commissioner reserves the right to oppose any award 22 23 under this statute. 24 8. Defendant denies all allegations of the Complaint not specifically admitted 25 or clarified. 26 27 9. In accordance with 42 U.S.C. § 405(g), Defendant files as part of the 28 answer a certified copy of the transcript of the record including the evidence upon which 2 Case 2:16-cv-04047-DLR Document 16 Filed 03/09/17 Page 3 of 4 1 Defendant based the challenged decision. 2 WHEREFORE, Defendant prays for judgment dismissing the Complaint, with 3 costs, and for judgment in accordance with 42 U.S.C. § 405(g), affirming Defendant’s 4 5 decision. 6 7 DATED this 9th day of March 2017. 8 Respectfully submitted, 9 10 ELIZABETH A. STRANGE Acting United States Attorney 11 District of Arizona 12 s/Ryan Lu 13 RYAN LU 14 Special Assistant United States Attorney 15 Of Counsel for the Defendant: 16 17 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 18 Office of the General Counsel, Region X 19 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 20 21 22 23 24 25 26 27 28 3 Case 2:16-cv-04047-DLR Document 16 Filed 03/09/17 Page 4 of 4 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Answer was filed with the Clerk of the 3 4 Court on March 9, 2017, using the CM/ECF system, which will send notification 5 of such filing to the following: Howard D. Olinsky. 6 7 s/Timothy Shaw 8 TIMOTHY SHAW 9 Paralegal Specialist Office of the General Counsel 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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

Case 2:16-cv-04047-DLR Document 17 Filed 03/09/17 Page 1 of 2 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Ryan Lu 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. OR105902 8 Fax: (206) 615-2531 ryan.lu@ssa.gov 9 Telephone: (206) 615-2034 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Scott Robert Shaffer, 14 No. CV-16-04047-PHX-DLR 15 Plaintiff, 16 NOTICE OF FILING CERTIFIED vs. ADMINISTRATIVE/TRANSCRIPT 17 OF RECORD Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 PLEASE TAKE NOTICE the Acting Commissioner of the Social Security 22 Administration, by and through Ryan Lu, Special Assistant United States 23 Attorney for the District of Arizona, files herein in accordance with section 205(g) of the 24 25 Social Security Act, 42 U.S.C. § 405(g), as part of the answer a certified electronic copy 26 of the transcript of the record including the evidence upon which the findings and 27 decision complained of are based. In addition, a paper copy was delivered to the court. 28 Case 2:16-cv-04047-DLR Document 17 Filed 03/09/17 Page 2 of 2 1 DATED this 9th day of March 2017. 2 3 Respectfully submitted, 4 ELIZABETH A. STRANGE 5 Acting United States Attorney District of Arizona 6 s/Ryan Lu 7 RYAN LU 8 Special Assistant United States Attorney 9 Of Counsel for the Defendant: 10 MATHEW W. PILE 11 Acting Regional Chief Counsel, Social Security Administration 12 Office of the General Counsel, Region X 701 Fifth Avenue, Suite 2900 M/S 221A 13 Seattle, WA 98104-7075 14 15 16 17 18 CERTIFICATE OF SERVICE 19 I hereby certify that the foregoing Notice of Filing Certified 20 21 Administrative/Transcript of Record was filed with the Clerk of the Court on 22 March 9, 2017, using the CM/ECF system, which will send notification of such 23 filing to the following: Howard D. Olinsky. 24 25 26 s/Timothy Shaw TIMOTHY SHAW 27 Paralegal Specialist 28 Office of the General Counsel 2

002 Court Transcript Index

Case 2:16-cv-04047-DLR Document 17-2 Filed 03/09/17 Page 1 of 2 Court Transcript Index Civil Action Number: 2:16-CV-04047 Claimant: Scott Robert Shaffer Account Number: 591-09-0849 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 09/23/2016 1-4 4 Request for Review of Hearing Decision/Order (HA 520), dated 5-6 2 04/14/2015 ALJ Hearing Decision (ALJDEC), dated 03/27/2015 7-24 18 AC Correspondence (ACCORR), dated 11/01/2016 25-27 3 AC Correspondence (ACCORR), dated 07/13/2016 28-34 7 Transcript of Oral Hearing (TRANHR), dated 12/02/2014 35-88 54 Exhibits Exhibit No. of No. Description Page No. Pages 1A Disability Determination Transmittal, dated 06/26/2013 89 1 2A Disability Determination Explanation, dated 06/26/2013 90-105 16 3A Disability Determination Transmittal, dated 11/13/2013 106 1 4A Disability Determination Explanation, dated 11/13/2013 107-122 16 1B Appointment of Representative, dated 02/22/2013 123-124 2 2B Representative Fee Agreement, dated 03/06/2013 125 1 3B Appointment of Representative, dated 04/02/2013 126 1 4B T16 Notice of Disapproved Claim, dated 06/26/2013 127-130 4 5B Request for Reconsideration, dated 08/02/2013 131-133 3 6B T16 Disability Reconsideration Notice, dated 11/13/2013 134-136 3 7B Request for Hearing by ALJ, dated 12/20/2013 137-139 3 8B Request for Hearing Acknowledgement Letter, dated 140-146 7 01/09/2014 9B Claimant's Change of Address Notification, dated 06/19/2014 147 1 10B Hearing Notice, dated 09/19/2014 148-173 26 11B Acknowledge Notice of Hearing, dated 09/22/2014 174 1 12B Resume of Vocational Expert 175-177 3 13B Notice Of Hearing Reminder, dated 11/18/2014 178-183 6 14B Representative Fee Agreement, dated 12/02/2014 184 1 15B Appointment of Representative, dated 12/02/2014 185 1 1D Application for Supplemental Security Income Benefits, dated 186-194 9 02/22/2013 2D Certified Earnings Records, dated 06/03/2014 195-196 2 3D New Hire, Quarter Wage, Unemployment Query (NDNH), 197-200 4 dated 06/03/2014 4D Detailed Earnings Query, dated 06/03/2014 201-202 2 5D Summary Earnings Query, dated 06/03/2014 203 1 6D New Hire, Quarter Wage, Unemployment Query (NDNH), 204-205 2 dated 12/01/2014 DATE: February 9, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. Case 2:16-cv-04047-DLR Document 17-2 Filed 03/09/17 Page 2 of 2 Court Transcript Index Civil Action Number: 2:16-CV-04047 Claimant: Scott Robert Shaffer Account Number: 591-09-0849 Exhibits Exhibit No. of No. Description Page No. Pages 7D Detailed Earnings Query, dated 12/01/2014 206-207 2 1E Disability Report-Field Office, dated 02/22/2013 208-210 3 2E Work History Report, dated 02/22/2013 211-219 9 3E Disability Report-Adult, dated 02/22/2013 220-227 8 4E 3rd Party Function Report-Adult, dated 04/05/2013, from 228-235 8 LINDA MILLER 5E Function Report-Adult, dated 04/05/2013, from SCOTT 236-244 9 ROBERT SHAFFER 6E DDS Disability Worksheet, dated 02/25/2013 to 06/26/2013, 245-249 5 from DDS PHOEN AZ 7E Disability Report-Field Office, dated 08/12/2013 250-251 2 8E Disability Report-Appeals, dated 08/12/2013 252-257 6 9E DDS Disability Worksheet, dated 10/01/2013 to 11/13/2013, 258-260 3 from OK DDS EST 10E Disability Report-Field Office, dated 12/23/2013 261-262 2 11E Disability Report-Appeals, dated 12/23/2013 263-267 5 12E Exhibit List-CD to Representative or Claimant Form # HA-L56 268-278 11 (03-200), dated 06/03/2014 13E Outstanding MER, dated 11/26/2014, from Myler Disability 279-280 2 1F Office Treatment Records, dated 02/02/2012 to 03/25/2013, 281-318 38 from NO APPOINTMENT MD 2F Office Treatment Records, dated 09/25/2012 to 04/01/2013, 319-341 23 from PANDA MEDICAL ASSOCIATES, LLC 3F CE Internal Medicine, dated 05/03/2013, from MONTE L 342-349 8 JONES, MD-GLENDALE 4F CE Psychology, dated 05/15/2013, from LITTLEFIELD 350-356 7 PSYCHOLOGICAL SERVICES INC 5F CE Psychology, dated 06/25/2013, from PSYCHOLOGICAL 357-364 8 ASSESSMENT ASSOCIATES OF ARIZONA 6F Office Treatment Records, dated 04/14/2013 to 09/14/2013, 365-384 20 from PANDA MEDICAL ASSOCIATES LLC 7F Office Treatment Records, dated 04/24/2013 to 10/14/2013, 385-403 19 from NO APPOINTMENT MD 8F Medical Report/General, dated 06/25/2014, from Rodereck, 404-406 3 Addie, FP-C 9F Medical Report/General, dated 11/06/2014, from 407-409 3 RODERECK, ADDIE, FNP-C 10F Office Treatment Records, dated 11/07/2013 to 10/23/2014, 410-454 45 from GFN Family Medicine 11F Office Treatment Records, dated 03/02/2011 to 07/12/2011, 455-464 10 from Arizona Clinic of Gastroenterology DATE: February 9, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable.

003 Documents Related to Administrative Process Including Transcript of Oral He

Case 2:16-cv-04047-DLR Document 17-3 Filed 03/09/17 Page 1 of 89 Documents Related to Administrative Process Including Transcript of Oral Hearing, if applicable Civil Action Number: 2:16-CV-04047 Claimant: Scott Robert Shaffer Account Number: 591-09-0849 No. of Court Transcript Index Page No. Pages AC Denial (ACDENY), dated 09/23/2016 1-4 4 Request for Review of Hearing Decision/Order (HA 520), dated 5-6 2 04/14/2015 ALJ Hearing Decision (ALJDEC), dated 03/27/2015 7-24 18 AC Correspondence (ACCORR), dated 11/01/2016 25-27 3 AC Correspondence (ACCORR), dated 07/13/2016 28-34 7 Transcript of Oral Hearing (TRANHR), dated 12/02/2014 35-88 54 DATE: February 9, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88

004 Payment Documents and Decisions

Case 2:16-cv-04047-DLR Document 17-4 Filed 03/09/17 Page 1 of 35 Payment Documents and Decisions Civil Action Number: 2:16-CV-04047 Claimant: Scott Robert Shaffer Account Number: 591-09-0849 Exhibits Exhibit No. of No. Description Page No. Pages 1A Disability Determination Transmittal, dated 06/26/2013 89 1 2A Disability Determination Explanation, dated 06/26/2013 90-105 16 3A Disability Determination Transmittal, dated 11/13/2013 106 1 4A Disability Determination Explanation, dated 11/13/2013 107-122 16 DATE: February 9, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122

005 Jurisdictional Documents and Notices

Case 2:16-cv-04047-DLR Document 17-5 Filed 03/09/17 Page 1 of 64 Jurisdictional Documents and Notices Civil Action Number: 2:16-CV-04047 Claimant: Scott Robert Shaffer Account Number: 591-09-0849 Exhibits Exhibit No. of No. Description Page No. Pages 1B Appointment of Representative, dated 02/22/2013 123-124 2 2B Representative Fee Agreement, dated 03/06/2013 125 1 3B Appointment of Representative, dated 04/02/2013 126 1 4B T16 Notice of Disapproved Claim, dated 06/26/2013 127-130 4 5B Request for Reconsideration, dated 08/02/2013 131-133 3 6B T16 Disability Reconsideration Notice, dated 11/13/2013 134-136 3 7B Request for Hearing by ALJ, dated 12/20/2013 137-139 3 8B Request for Hearing Acknowledgement Letter, dated 140-146 7 01/09/2014 9B Claimant's Change of Address Notification, dated 06/19/2014 147 1 10B Hearing Notice, dated 09/19/2014 148-173 26 11B Acknowledge Notice of Hearing, dated 09/22/2014 174 1 12B Resume of Vocational Expert 175-177 3 13B Notice Of Hearing Reminder, dated 11/18/2014 178-183 6 14B Representative Fee Agreement, dated 12/02/2014 184 1 15B Appointment of Representative, dated 12/02/2014 185 1 DATE: February 9, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185

006 Non Disability Related Development

Case 2:16-cv-04047-DLR Document 17-6 Filed 03/09/17 Page 1 of 23 Non Disability Related Development Civil Action Number: 2:16-CV-04047 Claimant: Scott Robert Shaffer Account Number: 591-09-0849 Exhibits Exhibit No. of No. Description Page No. Pages 1D Application for Supplemental Security Income Benefits, dated 186-194 9 02/22/2013 2D Certified Earnings Records, dated 06/03/2014 195-196 2 3D New Hire, Quarter Wage, Unemployment Query (NDNH), 197-200 4 dated 06/03/2014 4D Detailed Earnings Query, dated 06/03/2014 201-202 2 5D Summary Earnings Query, dated 06/03/2014 203 1 6D New Hire, Quarter Wage, Unemployment Query (NDNH), 204-205 2 dated 12/01/2014 7D Detailed Earnings Query, dated 12/01/2014 206-207 2 DATE: February 9, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207

007 Disability Related Development

Case 2:16-cv-04047-DLR Document 17-7 Filed 03/09/17 Page 1 of 74 Disability Related Development Civil Action Number: 2:16-CV-04047 Claimant: Scott Robert Shaffer Account Number: 591-09-0849 Exhibits Exhibit No. of No. Description Page No. Pages 1E Disability Report-Field Office, dated 02/22/2013 208-210 3 2E Work History Report, dated 02/22/2013 211-219 9 3E Disability Report-Adult, dated 02/22/2013 220-227 8 4E 3rd Party Function Report-Adult, dated 04/05/2013, from 228-235 8 LINDA MILLER 5E Function Report-Adult, dated 04/05/2013, from SCOTT 236-244 9 ROBERT SHAFFER 6E DDS Disability Worksheet, dated 02/25/2013 to 06/26/2013, 245-249 5 from DDS PHOEN AZ 7E Disability Report-Field Office, dated 08/12/2013 250-251 2 8E Disability Report-Appeals, dated 08/12/2013 252-257 6 9E DDS Disability Worksheet, dated 10/01/2013 to 11/13/2013, 258-260 3 from OK DDS EST 10E Disability Report-Field Office, dated 12/23/2013 261-262 2 11E Disability Report-Appeals, dated 12/23/2013 263-267 5 12E Exhibit List-CD to Representative or Claimant Form # HA-L56 268-278 11 (03-200), dated 06/03/2014 13E Outstanding MER, dated 11/26/2014, from Myler Disability 279-280 2 DATE: February 9, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280

008 Medical Records Part 1

Case 2:16-cv-04047-DLR Document 17-8 Filed 03/09/17 Page 1 of 130 Medical Records Civil Action Number: 2:16-CV-04047 Claimant: Scott Robert Shaffer Account Number: 591-09-0849 Exhibits Exhibit No. of No. Description Page No. Pages 1F Office Treatment Records, dated 02/02/2012 to 03/25/2013, 281-318 38 from NO APPOINTMENT MD 2F Office Treatment Records, dated 09/25/2012 to 04/01/2013, 319-341 23 from PANDA MEDICAL ASSOCIATES, LLC 3F CE Internal Medicine, dated 05/03/2013, from MONTE L 342-349 8 JONES, MD-GLENDALE 4F CE Psychology, dated 05/15/2013, from LITTLEFIELD 350-356 7 PSYCHOLOGICAL SERVICES INC 5F CE Psychology, dated 06/25/2013, from PSYCHOLOGICAL 357-364 8 ASSESSMENT ASSOCIATES OF ARIZONA 6F Office Treatment Records, dated 04/14/2013 to 09/14/2013, 365-384 20 from PANDA MEDICAL ASSOCIATES LLC 7F Office Treatment Records, dated 04/24/2013 to 10/14/2013, 385-403 19 from NO APPOINTMENT MD 8F Medical Report/General, dated 06/25/2014, from Rodereck, 404-406 3 Addie, FP-C 9F Medical Report/General, dated 11/06/2014, from 407-409 3 RODERECK, ADDIE, FNP-C DATE: February 9, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409

009 Medical Records Part 2

Case 2:16-cv-04047-DLR Document 17-9 Filed 03/09/17 Page 1 of 56 Medical Records Civil Action Number: 2:16-CV-04047 Claimant: Scott Robert Shaffer Account Number: 591-09-0849 Exhibits Exhibit No. of No. Description Page No. Pages 10F Office Treatment Records, dated 11/07/2013 to 10/23/2014, 410-454 45 from GFN Family Medicine 11F Office Treatment Records, dated 03/02/2011 to 07/12/2011, 455-464 10 from Arizona Clinic of Gastroenterology DATE: February 9, 2017 The documents and exhibits contained in this administrative record are the best copies obtainable. 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464

OPENING BRIEF by Scott Robert Shaffer.

Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 1 of 20 1 Howard D. Olinsky 2 Attorney for Plaintiff 3 Admitted Pro Hac Vice 4 One Park Place 5 300 South State St., Suite 420 6 Syracuse, New York 13202 7 Phone: (315) 701-5780 8 Facsimile: (315) 701-5781 9 Email: holinsky@windisability.com 10 11 12 IN THE UNITED STATES DISTRICT COURT 13 DISTRICT OF ARIZONA 14 Scott Robert Shaffer, No. 2:16-CV-04047-DLR Plaintiff, OPENING BRIEF OF PLAINTIFF vs. [Dist. Ariz. Local Rule Civil 16.1(a)] Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant 15 16 STATEMENT OF THE ISSUES 17 18 1. The ALJ erred in finding that Plaintiff did not meet Listing 12.05C 19 2. The RFC determination is not supported by substantial evidence. 20 3. The Step 5 determination is not supported by substantial evidence. 21 STATEMENT OF THE CASE 22 On February 22, 2013, Scott Robert Shaffer ("Plaintiff") protectively filed an 23 application for Supplemental Security Income alleging disability beginning January 1, 1 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 2 of 20 1 2013 due to Type II diabetes, cirrhosis of the liver, high blood pressure, high cholesterol, 2 a hernia, back and hip issues, schizophrenia, ADD, and bipolar. Administrative 3 Transcript ("T") at 89-122, 186-94. Plaintiff subsequently amended the alleged onset date 4 to February 22, 2013, the application date. T 10, 39. His application was initially denied 5 on July 26, 2013 and on reconsideration on November 13, 2013. T 89, 106. After a 6 hearing held on December 2, 2014 (T 35-88), Administrative Law Judge ("ALJ") Ted W. 7 Armbruster issued a decision denying Plaintiff’s application on March 27, 2015. T 10-24. 8 In the decision, the ALJ found Plaintiff has not engaged in substantial gainful 9 activity since February 22, 2013. T 12. The ALJ found Plaintiff has severe impairments 10 including degenerative disc disease ("DDD") of the cervical and lumbar spine, diabetes 11 mellitus, obesity, major depressive disorder, and learning disorder, NOS, none of which 12 met or medically equaled the severity of a listed impairment. T 12-14. The ALJ 13 determined that Plaintiff has the residual functional capacity ("RFC") to perform light 14 work except: 15 he can climb ramps and stairs, balance, stoop, kneel, crouch and crawl 16 frequently, climbing ladders occasionally and never climb ropes and 17 scaffolds, must avoid concentrated exposure to pulmonary irritants, and can 18 understand, remember and carry out simple instructions and perform 19 simple, routine, repetitive tasks. 20 21 T 14. The ALJ found Plaintiff has no past relevant work and he can perform jobs existing 22 in significant numbers in the national economy. T 18-19. The ALJ ultimately found 23 Plaintiff has not been under a disability, as defined in the Social Security Act, since 24 February 22, 2013, the date the application was filed. T 19. 25 On September 23, 2016, the Appeals Council denied review making the ALJ’s 2 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 3 of 20 1 unfavorable decision the final agency decision. T 1-4. This action followed. This Court 2 has jurisdiction of this action. 42 U.S.C. §§ 405(g), 1383(c)(3). 3 STATEMENT OF FACTS 4 Born in 1971, Plaintiff was years old 41 years old at the application date. T 47, 5 90. Plaintiff has a limited education, was held back in second and third grade, and was in 6 special education classes. T 42, 47, 70, 222. He worked in the past as a part-time home 7 care giver for his father. T 47, 51-55, 68-70, 83, 211, 223. He is 5’5" and approximately 8 240 pounds. T 57. 9 In a disability report from February 2013, interviewer R. Goss noted Plaintiff had 10 difficulty with reading, understanding, coherency, and concentrating. T 208-010. Goss 11 indicated Plaintiff was able to sit throughout the interview, but tended to bounce around a 12 little bit nervously and was very nervous. T 209. His sister Theresa Robinson tried to 13 calm him during the interview. T 209. 14 Plaintiff’s mother completed a third party function report and indicated Plaintiff 15 did not comprehend how to pay bills, count change, handle a savings account, or use a 16 checkbook/money orders. T 228-35. Plaintiff’s function report (which his mother helped 17 him complete) indicated he needed reminders to take his medications and he was told 18 what to do for light cleaning around the house. T 228-44. 19 A. Medical Evidence 20 Plaintiff has a history of pain in his neck, back, hips, ankles, and feet related to 21 DDD, sciatica, and muscle spasms of the lower extremities. T 288-89, 291-93, 307, 309-22 13, 411-54. He has a history of alcohol abuse in remission, cirrhosis of the liver, gout, 3 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 4 of 20 1 hypertension, obesity, uncontrolled Type II diabetes, asthma, GERD, and thyroid 2 problems. T 281-313, 321-38, 366-80, 418, 456-64. He has been variously prescribed 3 Clonidine, Enalapril, Levothyroxine, Metformin, Oxycodone, and Soma. T 292-93, 296-4 97, 307-08, 313, 386, 420. 5 In August 2012, Plaintiff was noted to be in obvious pain and he was assessed 6 with acute foot pain. T 289. In a follow up visit, he had pain in his left ankle and mild 7 puffiness. T 291. In September and October 2012, Plaintiff underwent testosterone shots 8 to treat chronic hypogonadism causing fatigue. T 335-38. In October 2012, he was 9 referred to pain management. T 292-93. He subsequently reported left knee pain. T 293. 10 He was prescribed Oxycodone. T 292-93. He reported hip and back pain in November 11 2012. T 303. A lumbar spine MRI showed mild degenerative disc disease including 12 bilateral L5 pars defects and broad-based central to slightly right paramedian disc bulge 13 or protrusion causing asymmetric narrowing of the right lateral recess at L5-S1 and mild 14 disc bulge and mild facet hypertrophic change at L4-L5. T 315-16. Brian Frohna, M.D., 15 noted a need to correlate the results for right S1 radiculopathy. T 316. 16 In January 2013, he was assessed with back pain and started on Soma by primary 17 care physician William Zachow, D.O. T 307. In February and March 2013, he was 18 assessed with chronic pain, hypothyroidism, obesity, hypertension, fatigue, and diabetes 19 mellitus type II. T 309-11. In March, Addie Roderick, NP, at Dr. Zachow’s office, 20 observed limping due to foot pain, unchanged reoccurring back pain, numbness and 21 tingling to extremities due to diabetes, mild edema in both feet, and redness to mid foot 22 over the dorsal surface. T 312-13. NP Roderick assessed back pain, diabetes with 4 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 5 of 20 1 peripheral circulation disease, peripheral neuropathy, and foot pain. T 313. In April, NP 2 Roderick noted Plaintiff had chronic back pain and a December 2012 MRI showing 3 DDD, bulging discs, L5 pars defect, and S1 radiculopathy. T 397. She indicated he had 4 not had insurance so he had not been getting his lab work done. T 397. 5 In August 2013, Plaintiff reported increased fatigue. T 370-74. In April, June, and 6 September 2013, Plaintiff received testosterone shots. T 366-99, 375-80. In September, 7 he reported muscle pain, numbness or sensation disturbance, and tingling of fingers 8 and/or feet/toes. T 366. He said his pain medications were helping with his pain, but he 9 was currently having a lot of pain in the right side of his lower back seeming to hurt in 10 his hip at times. T 388. 11 In November 2013, Plaintiff reported low back pain and increasing muscle spasms 12 since NP Roderick decreased Soma. T 443. Between May and October 2014, NP 13 Roderick noted Plaintiff reported severe lower back pain radiating into the lower 14 extremities despite taking Oxycodone. T 412-34. She indicated an MRI of the lumbar 15 spine showed moderate DDD at L4, L5, and S1 and an x-ray of the cervical spine 16 showing severe DDD in the neck. T 412-13. 17 B. Hearing Testimony 18 Plaintiff has pain in his neck, back, hips, ankles, and feet. T 39, 71-72. He has gout 19 in his feet. T 72. He has difficulty sleeping at night and experiences fatigue during the 20 day. T 74. He sits and rests a lot and tries to sleep during the day. T 75. He cannot walk 21 far because his ankles swell and his diabetes is uncontrolled. T 57. He has to stop and rest 22 if he walks too far. T 61. He takes pain medication for his back. T 66, 74. He drives a 5 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 6 of 20 1 couple of times a month to go to the store and his sister or brothers usually take him to 2 his doctor’s appointments. T 57. He and his daughter live with his sister who washes his 3 laundry. T 80-81. His mother helped him with his daughter before she died and his sister 4 now helps him with childcare. T 48-51. His sister goes with him to parent-teacher 5 conferences because he does not understand what is going on. T 50. He goes to church an 6 average of two times a month and likes to draw and watch television. T 59-65. He has 7 difficulty reading and understanding what he reads. T 62-63. He failed his driving test 8 four times and when he did pass, someone read some of the questions to him. T 71. 9 The Vocational Expert ("VE") Gayle Tichauer indicated that an individual of 10 Plaintiff’s age, educational background, no past relevant work experience, and 11 determined RFC (quoted in full supra) could perform work as a housekeeping cleaner 12 and fast food worker. T 84-85. 13 C. Opinion Evidence 14 In May 2013, Plaintiff underwent a consultative examination conducted by Monte 15 L. Jones, M.D. T 342-49. On examination, Plaintiff was able to partially squat with 16 difficulty and kneel with mild difficulty. T 343. Dr. Jones indicated Plaintiff’s difficulty 17 with mobility was because of back pain. T 343. Pinprick sensation was decreased at the 18 mid-tibia and vibration sense was decreased mildly in both legs. T 344. Dr. Jones 19 diagnosed fatigue, back pain, liver cirrhosis, mental issues, bilateral lower extremity 20 peripheral neuropathy, hypertension, hypercholesterolemia, hypothyroidism, and diabetes 21 mellitus. T 345. He indicated Plaintiff had limitations due to back pain, mental issues, 22 and bilateral lower extremity peripheral neuropathy, but that no limitations were found 6 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 7 of 20 1 with fatigue, liver cirrhosis, hypertension, hypercholesterolemia, hypothyroidism, and 2 diabetes mellitus. T 345-46. Dr. Jones opined Plaintiff could occasionally lift and/or carry 3 20 pounds and frequently lift and/or carry 10 pounds; could stand and/or walk 6-8 hours 4 in an 8-hour day; could frequently climb ramps/stairs, stoop, kneel, crouch, crawl; could 5 never climb ladders/ropes/scaffolds; and had environmental restrictions regarding 6 working around heights and excessive noise. T 346-48. 7 Plaintiff also underwent a psychiatric consultative examination conducted by 8 Kenneth W. Littlefield, Psy.D. T 350-56. Dr. Littlefield noted it might be important to do 9 cognitive and educational testing to determine intellectual functioning particularly related 10 to a possible reading and mathematics disorder. T 351, 353. He indicated because of 11 Plaintiff’s difficulties with reading and basic math, he may need help managing potential 12 benefit payments to prevent him from being taken advantage of by others. T 353. Dr. 13 Littlefield further stated Plaintiff appeared incompetent to manage benefit payments, but 14 subsequently checked "yes" in response to whether Plaintiff was capable of managing 15 benefit payments in his own interest in the medical source statement. T 353, 355. He 16 diagnosed Major Depressive Disorder ("MDD") (chronic, moderate), Amphetamine 17 Dependence in Full Sustained Remission, and a need to Rule out Reading Disorder. T 18 352. He indicated Plaintiff described moderate symptoms consistent with MDD which 19 might interfere in his social functioning. T 353. 20 Dr. Littlefield stated Plaintiff demonstrated a minimally acceptable ability to 21 understand simple instructions during the evaluation. T 354. He asked for directions 22 several times and required redirection to stay on task. T 354. He might have difficulty 7 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 8 of 20 1 responding to supervisory criticism secondary to mood symptoms and appeared to lack 2 motivation for social interaction due to depression. T 354. 3 On June 25, 2013, Plaintiff underwent further examination and testing conducted 4 by Michael Rabara, Psy.D. T 357-64. Dr. Rabara observed a slow and limping gait 5 favoring Plaintiff’s right leg. T 359. He noted Plaintiff was very self-conscious about his 6 perceived limitations and exhibited self-induced anxiety. T 360. His anxiety affected his 7 test performance, particularly on memory tasks, but he nonetheless seemed to have some 8 genuine limitations. T 360. He scored in the extremely low to borderline range of 9 intelligence with a full scale IQ of 65. T 360. His verbal comprehension skills, working 10 memory skills, and processing speed were in the extremely low range; his perceptual 11 reasoning skills were in the below average range; his verbal concept formation and 12 reasoning was very poor; he had poor word knowledge; and his ability to acquire, retain, 13 and retrieve general factual knowledge was poor. T 360-61. Dr. Rabara diagnosed 14 unspecified Depressive Disorder with anxious distress (mild, in partial remission), 15 Specific Learning Disorder Reading, Math, and Written Language (Provisional), Alcohol 16 Use Disorder in Remission, and Stimulant Use Disorder in Remission. T 362. He 17 indicated Plaintiff’s memory scores were believed to have been affected by test-taking 18 anxiety and were thus considered an underestimate of his skills. T 362. He indicated 19 Plaintiff appeared capable of managing payments in his best interests. T 362, 363. 20 Dr. Rabara opined Plaintiff would have mild difficulty remembering simple 21 instructions and moderate difficulty remembering detailed instructions and work-like 22 procedures; he could carry out simple instructions and make simple decisions; he would 8 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 9 of 20 1 have moderate difficulty carrying out detailed instructions, sustaining his concentration, 2 and completing a normal workday at a consistent pace; and would have moderate 3 difficulty responding appropriately to work setting changes. T 363. 4 At the initial determination dated June 26, 2013, non-examining state Agency 5 consultant Stephen Fair, Ph.D., indicated Plaintiff would be able to perform simple, 6 repetitive work, especially if the work could first be demonstrated visually to him. T 94. 7 He opined moderate restriction of activities of daily living, mild difficulties in 8 maintaining social functioning, and moderate difficulties in maintaining concentration, 9 persistence or pace. T 98-99, 102-03. In May 2013, non-examining state Agency 10 consultant John Fahlberg, M.D., opined an RFC consistent with medium work with 11 frequent climbing ramps/stairs, balancing, stooping, kneeling, crouching, and crawling as 12 well as occasional climbing ladders/ropes/scaffolds. T 100-02. 13 Upon reconsideration in November 2013, consultant "CCG," Ph.D., opined 14 moderate restriction of activities of daily living and moderate difficulties in maintaining 15 social functioning and concentration, persistence or pace. T 113-14. Lise Mungul, M.D., 16 affirmed Dr. Fahlberg’s assessment with the addition of environmental limitations 17 involving avoiding concentrated exposure to "fumes, odors, dusts, gases, poor 18 ventilation, etc." T 116-18. 19 In June 2014, NP Roderick completed an RFC questionnaire indicating she saw 20 Plaintiff once a month for testing and medication refills. T 405. She diagnosed 21 hypertension, back pain, hypothyroidism, and diabetes as chronic problems controlled 22 with medication. T 405. She indicated symptoms included dizziness, fatigue, and 9 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 10 of 20 1 headaches and noted hypertension was uncontrolled. T 405. She indicated Plaintiff’s 2 symptoms were often severe enough to interfere with the attention and concentration 3 required to perform simple work-related tasks; he could walk less than a city block 4 without rest or significant pain; he could sit for 30 minutes at a time for a total of five 5 hours; he could stand/walk for five minutes at a time for a total of one hour; he would 6 need a job permitting shifting positons at will; he would need to take unscheduled breaks 7 lasting five to ten minutes three times during an 8-hour workday; he could occasionally 8 lift up to ten pounds; he would likely be absent from work once or twice a month; and he 9 was not physically capable of an 8 hour day, 5 days a week employment on a sustained 10 basis. T 405-06. 11 In November 2014, NP Roderick completed another RFC questionnaire largely 12 affirming her previous assessment. T 408-09. She indicated Plaintiff would need to 13 recline or lie down in excess of traditional breaks during a hypothetical 8-hour workday; 14 he could sit for 30 minutes at a time for a total of four hours. T 408-09. She had seen 15 Plaintiff as his primary care provider once a month since 2012. T 408. 16 Argument 17 Standard of Review 18 Pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), this Court may review the record to 19 determine whether the Commissioner applied the proper legal standards and whether 20 substantial evidence supports the final agency decision to deny the Plaintiff benefits. 21 Substantial evidence means more than a scintilla, "[i]t means such relevant 22 evidence as a reasonable mind might accept as adequate to support a conclusion." 10 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 11 of 20 1 Richardson v. Perales, 402 U.S. 389, 400 (1971) (quoting Consolidated Edison Co. v. 2 NLRB, 305 U.S. 229 (1938)); Martinez v. Colvin, No. CV-12-01886, 2013 WL 5705318, 3 *1 (D. Ariz. Oct. 12, 2013) (Wake, J.) ("Substantial evidence is more than a scintilla, less 4 than a preponderance, and relevant evidence that a reasonable person might accept as 5 adequate to support a conclusion considering the record as a whole") (citing Orn v. 6 Astrue, 495 F.3d 625, 630 (9th Cir. 2007)). 7 An individual is considered disabled for purposes of disability benefits if he is 8 unable to "engage in any substantial gainful activity by reason of any medically 9 determinable physical or mental impairment which can be expected to result in death or 10 which has lasted or can be expected to last for a continuous period of not less than 12 11 months." 42 U.S.C. § 423(d)(1)(A). 12 1. The ALJ erred in finding that Plaintiff did not meet Listing 12.05C. 13 The ALJ found that Plaintiff did not meet Listing 12.05 because he does not 14 present with significantly subaverage general intelligence with deficits in adaptive 15 functioning initially manifested before age 22. T 13. The introductory paragraph of 16 Listing 12.05 indicates: 17 Intellectual disability refers to significantly subaverage general intellectual 18 functioning with deficits in adaptive functioning initially manifested during the 19 developmental period; i.e., the evidence demonstrates or supports onset of the 20 impairment before age 22. The required level of severity for this disorder is met 21 when the requirements in A, B, C, or D are satisfied. 22 23 20 C.F.R. Part 404, Subpt P, App’x 1, Listing 12.05. "Listing 12.05C requires'[a] valid 24 verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental 11 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 12 of 20 1 impairment imposing an additional and significant work related limitation of function’" 2 and requires that any deficits in adaptive functioning have manifested during the 3 developmental period, i.e., before age 22. Moua v. Colvin, 563 Fed. App’x. 545, 546 (9th 4 Cir. 2014) (quoiting Listing 12.05C). 5 Plaintiff meets the first requirement of Listing 12.05C in that intellectual disability 6 referring to significantly subaverage general intellectual functioning with deficits in 7 adaptive functioning initially manifested during the developmental period; i.e., the 8 evidence demonstrates or supports onset of the impairment before age 22. 9 When determining whether a claimant demonstrates deficits in adaptive 10 functioning, courts consider a variety of factors that focus on a claimant’s ability 11 to lead an independent life. The Third and Eighth Circuits have found that "a 12 claimant’s participation in special education classes, poor academic performance, 13 and low-skilled work history imply evidence of deficient in adaptive functioning 14 during the developmental period." 15 16 Payne v. Astrue, No. CV-08-1753-PHX-LOA, 2010 WL 654319, *11 (D. Ariz. Feb. 23, 17 2010) (quoting Walberg v. Astrue, 2009 WL 1763295, *9 (W.D. Wash. June 18, 2009)) 18 (internal citations omitted). See also Huber v. Astrue, No. CV-10-8043-PCT-DGC, 2010 19 WL 4684021, *3 (D. Ariz. Nov. 12, 2010) (quoting Walberg, 2009 WL 1763295 at *9) 20 (participation in special education constitutes evidence of deficits in adaptive functioning 21 during the developmental periods). "Deficits in adaptive functioning are shown by 22'significant limitations in at least two of the following areas: communication, self-care, 23 home living, social/interpersonal skills, use of community resources, self direction, 24 functional academic skills, work, leisure, health, and safety.’" Burchfield v. Astrue, No. 25 CV-11-00590-PHX-FJM, 2011 WL 5975764, *3 (D. Ariz. Nov. 30, 2011) (quoting the 12 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 13 of 20 1 DSM-IV-TR). 2 The evidence of record indicate Plaintiff has consistently had deficits in adaptive 3 functioning shown by significant limitations in at least the areas of functional academic 4 skills, work, and self direction. The record indicates that Plaintiff has a limited education. 5 T 46, 69, 70, 89, 106, 222. He testified he was held back in the second and third grades 6 and was in special education classes. T 42, 47, 70, 222. He had trouble understanding. T 7 70. He left school in the eighth grade at the age of 14 or 15 because he was not learning 8 anything and the information was not "sticking" for him. T 70. Prior to being a caregiver 9 for his father, his parents provided for him financially from 2000 to 2010. T 67-68. He 10 also testified that his mother helped him with his daughter before she died and his sister 11 now helps him with childcare including going with him to parent-teacher conferences 12 because he does not understand what is going on. T 48-51. He explained that he failed his 13 driving test four times and when he did pass, someone read some of the questions to him. 14 T 71. 15 Plaintiff’s testimony is consistent with observations by consultative examiners 16 Drs. Littlefield and Rabara. Dr. Littlefield indicated that because of Plaintiff’s difficulties 17 with reading and basic math, he may need help managing potential benefit payments to 18 prevent him from being taken advantage of by others. T 353. Dr. Rabara indicated 19 Plaintiff’s anxiety affected his test performance, particularly on memory tasks, but he 20 nonetheless seemed to have some genuine limitations. T 360. His verbal comprehension 21 skills, working memory skills, and processing speed were in the extremely low range; his 22 perceptual reasoning skills were in the below average range; his verbal concept formation 13 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 14 of 20 1 and reasoning was very poor; he had poor word knowledge; and his ability to acquire, 2 retain, and retrieve general factual knowledge was poor. T 360-61. Dr. Rabara 3 provisionally diagnosed Specific Learning Disorder Reading, Math, and Written 4 Language. T 362. 5 The ALJ pointed out that there was no testing from before age 22 and that Plaintiff 6 was able to complete psychometric testing, has no diagnosis of mental retardation, passed 7 both a driver’s test and a caregiver test, and there was an indication that he completed his 8 GED. T 13. The notation in Exhibit 5F indicating Plaintiff had a GED is inconsistent with 9 the other evidence of record. T 358. Plaintiff consistently indicated he had not completed 10 a GED and had a limited education, explaining at the hearing that he started eighth grade, 11 but did not finish it. T 46, 69-70, 89, 106, 222. 12 Plaintiff meets the second requirement of Listing 12.05C (the first prong of Part 13 C) in having an IQ score between 60 and 70. Per Dr. Rabara’s testing, Plaintiff scored in 14 the extremely low to borderline range of intelligence with a full scale IQ of 65. T 17, 360. 15 Finally, Plaintiff meets the third requirement of Listing 12.05C (the second prong 16 of Part C), in that he has a physical or another mental impairment imposes an additional 17 and significant work-related limitation of function. The ALJ found Plaintiff’s severe 18 impairments included DDD of the cervical and lumbar spine, diabetes mellitus, obesity, 19 major depressive disorder, and learning disorder, NOS. T 12. These impairments impose 20 additional and significant work-related limitations of function as indicated by Plaintiff’s 21 testimony as well as the opinion and medical evidence of record. T 39, 57, 61, 71-72, 22 281-313, 321-38, 366-80, 411-54, 456-64. 14 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 15 of 20 1 The ALJ erred in failing to properly analyze Plaintiff’s cognitive limitations in 2 regards Listing 12.05C. The ALJ’s finding that Plaintiff does not meet this listing is not 3 supported by substantial evidence. Accordingly, this matter requires remand for 4 calculation of benefits as Plaintiff meets Listing 12.05C, or in the alternative, remand for 5 further administrative proceedings including a de novo hearing and decision. 6 2. The RFC determination is not supported by substantial evidence. 7 8 RFC "means the most an individual can do after considering the effects of 9 physical and/or mental limitations that affect the ability to perform work-related tasks." 10 Lupo v. Colvin, No. CV-13-661, 2014 WL 2638296, at *1 n.2 (D. Ariz. June 13, 2014) 11 (Anderson, M.J) (citing 20 C.F.R. § 404.1545(a)(1)-(2)). 12 The ALJ indicated that Plaintiff has no limitation in activities of daily living and 13 social functioning and has moderate limitation in concentration, persistence or pace. T 14 13. Within the final RFC, the ALJ limited Plaintiff to simple instructions and simple, 15 routine, repetitive tasks. T 14. In so doing, the ALJ failed to properly account for 16 Plaintiff’s mental limitations in the final RFC determination. 17 First, the record does not support the ALJ’s finding regarding Plaintiff’s level of 18 limitations in social functioning. State Agency consultant Stephen Fair, Ph.D., indicated 19 Plaintiff would be able to perform simple, repetitive work, especially if the work could 20 first be demonstrated visually to him. T 94. He opined mild difficulties in maintaining 21 social functioning. T 98-99, 102-03. Upon reconsideration in November 2013, consultant 22 "CCG," Ph.D., opined moderate difficulties in maintaining social functioning. T 113-14. 23 Consultative examiner Dr. Littlefield indicated because of Plaintiff’s difficulties 15 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 16 of 20 1 with reading and basic math, he may need help managing potential benefit payments to 2 prevent him from being taken advantage of by others. T 353. He also indicated Plaintiff 3 described moderate symptoms consistent with MDD which might interfere in his social 4 functioning. T 353. He might have difficulty responding to supervisory criticism 5 secondary to mood symptoms and appeared to lack motivation for social interaction due 6 to depression. T 354. Consultative examiner Dr. Rabara opined Plaintiff would have 7 moderate difficulty responding appropriately to work setting changes. T 363. 8 The ALJ afforded some weight to the opinion of consultative examiner Dr. 9 Littlefield, indicating that the record as a whole shows Plaintiff could perform simple, 10 routine, repetitive tasks on a consistent basis. T 16-17. The ALJ afforded great probative 11 weight to the opinion of Dr. Rabara. T 17. The ALJ afforded great weight to the opinion 12 of the state Agency medical consultant (though it is not clear which one) noting Plaintiff 13 could perform simple, repetitive work, but afforded limited weight to the remainder of 14 the opinion, indicating Dr. Rabara’s opinion was more consistent with the evidence as a 15 whole. T 17. The overall indication of these opinions (from both non-examining and 16 examining sources) is that Plaintiff has at least mild limitation in maintaining social 17 functioning, particularly within the context of a work setting. 18 Second, the ALJ’s limitation of simple, routine, and repetitive tasks fails to 19 adequately account for his finding that Plaintiff has moderate difficulties in 20 concentration, persistence or pace. T 19, 21. The Ninth Circuit has held that an ALJ's 21 RFC assessment adequately captures restrictions related to concentration, persistence, or 22 pace where the assessment is "consistent with restrictions identified in the medical 16 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 17 of 20 1 testimony." Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). But where 2 medical testimony identifies more significant restrictions related to concentration, 3 persistence, or pace, an ALJ errs by formulating an RFC limiting claimant only to simple, 4 repetitive work. See Brink v. Comm'r Soc. Sec. Admin, 343 Fed. App’x. 211, 212 (9th Cir. 5 2009) (RFC of simple, repetitive work does not encompass "moderate difficulty with 6 concentration, persistence, or pace"). 7 Dr. Littlefield stated Plaintiff demonstrated a minimally acceptable ability to 8 understand simple instructions during the evaluation. T 354. He asked for directions 9 several times and required redirection to stay on task. T 354. Upon testing by Dr. Rabara, 10 Plaintiff’s verbal comprehension skills, working memory skills, and processing speed 11 were in the extremely low range and his ability to acquire, retain, and retrieve general 12 factual knowledge was poor. T 360-61. Dr. Rabara opined Plaintiff would have mild 13 difficulty remembering simple instructions and moderate difficulty remembering detailed 14 instructions and work-like procedures; he could carry out simple instructions and make 15 simple decisions; he would have moderate difficulty sustaining his concentration and 16 completing a normal workday at a consistent pace. T 363. Non-examining consultant Dr. 17 Fair indicated Plaintiff would be able to perform simple, repetitive work, especially if the 18 work could first be demonstrated visually to him. T 94. 19 These observations and opinions indicate that a mere limitation to simple 20 instructions and simple, routine, repetitive tasks does not adequately account for the 21 extent of Plaintiff’s limitations in maintaining concentration, persistence or pace. Such a 22 limitation fails to address Plaintiff’s demonstrated need for redirection to stay on task and 17 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 18 of 20 1 poor ability to acquire, retain, and retrieve general factual knowledge. T 354, 360-61. Dr. 2 Rabara, to whom the ALJ afforded great probative weight, indicated a mild difficulty in 3 remembering even simple instructions. T 17, 363. The ability to carry out simple 4 instructions and make simple decisions (as Dr. Rabara opined) does not equate to the 5 ability to sufficiently maintain concentration, persistence or pace in a competitive work 6 setting. 7 For the reasons above, the RFC determination is not supported by substantial 8 evidence. Accordingly, this matter should be remanded for further administrative 9 proceedings. 10 3. The Step 5 determination is not supported by substantial evidence. 11 The ALJ relied on the VE’s testimony in concluding Plaintiff could perform other 12 work in the national economy, such as housekeeping cleaner and fast food worker. T 19, 13 84-85. However, the VE’s testimony was elicited in response to an incomplete 14 hypothetical question and therefore cannot provide evidence to support the ALJ’s 15 decision at Step 5. "An ALJ must propound a hypothetical to a VE that is based on 16 medical assumptions supported by substantial evidence in the record that reflects all of 17 claimant’s limitations." Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). "The 18 hypothetical should be'accurate, detailed, and supported by the medical record.’" 19 Osenbrock, 240 F.3d at 1165 (quoting Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 20 1999)). Because the ALJ erred in assessing Listing 12.05C and Plaintiff’s RFC, the Step 21 5 finding is inherently unsupported by substantial evidence. Accordingly, this matter 22 should be remanded for further administrative proceedings. 18 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 19 of 20 1 Conclusion 2 For the foregoing reasons, it is respectfully requested this matter be remanded for 3 calculation of benefits, or in the alternative, for further proceedings, including a de novo 4 hearing and decision to address these errors. 5 Respectfully submitted, 6 7 Dated: May 8, 2017/s/Howard D. Olinsky 8 Howard D. Olinsky, Esq. 9 Attorney for Plaintiff 10 Olinsky Law Group 11 One Park Place 12 300 South State St., Suite 420 13 Syracuse, New York 13202 14 Phone: (315) 701-5780 15 Email: holinsky@windisability.com 16 19 Case 2:16-cv-04047-DLR Document 18 Filed 05/08/17 Page 20 of 20 1 CERTIFICATE OF SERVICE 2 3 I hereby certify that on May 8, 2017 I electronically filed Plaintiff’s reply brief with 4 the Clerk of the District Court using the CM/ECF system, which sent notification of such 5 filing to the following: 6 To: Ryan Lu 7 Special Assistant U.S. Attorney 8 Elizabeth A. Strange 9 Acting U.S. Attorney 10 11/s/Howard D. Olinsky 12 Howard D. Olinsky, Esq. 13 Attorney for Plaintiff 20

Certificate of Service

Case 2:16-cv-04047-DLR Document 18-1 Filed 05/08/17 Page 1 of 1 Howard D. Olinsky, Esq. Admitted Pro Hac Vice Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, NY 13202 Telephone: (315) 701-5780 Facsimile: (315) 701-5781 holinsky@windisability.com Attorney for Plaintiff Scott Robert Shaffer IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Scott Robert Shaffer, Plaintiff, Civil No. 2:16-cv-04047-DLR vs. CERTIFICATE OF SERVICE Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant This is to certify that I have this day served counsel for the Defendant with Plaintiff’s Opening Brief by electronically filing the foregoing with the Clerk of the Court by using the CM/ECF system which will send electronic notification of such filing to: Ryan Lu Special Assistant United States Attorney This 8th day of May, 2017./s/Howard D. Olinsky Howard D. Olinsky, Esq.

RESPONSE BRIEF by Commissioner of Social Security Administration.

Case 2:16-cv-04047-DLR Document 19 Filed 06/07/17 Page 1 of 16 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Ryan Lu 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. OR105902 8 Fax: (206) 615-2531 ryan.lu@ssa.gov 9 Telephone: (206) 615-2034 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Scott Robert Shaffer, 14 No. CV-16-04047-PHX-DLR 15 Plaintiff, 16 DEFENDANT’S BRIEF vs. 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 21 INTRODUCTION 22 Scott Shaffer (Plaintiff) seeks judicial review of the final administrative decision 23 denying his application for Supplemental Security Income payments under Title XVI of 24 25 the Social Security Act (the Act). 42 U.S.C. §§ 1381-83f. The Act provides for judicial 26 review of a "final decision" of Defendant, the Commissioner of Social Security 27 (Commissioner). 42 U.S.C. § 405(g). 28 Case 2:16-cv-04047-DLR Document 19 Filed 06/07/17 Page 2 of 16 1 Plaintiff seeks an order reversing the decision and remanding for payment of 2 benefits or, in the alternative, further administrative proceedings. Plaintiff’s Opening 3 Brief (ECF No. 18) at 19. However, as substantial evidence supports the Commissioner’s 4 5 final decision, the Court should affirm. 6 STATEMENT OF ISSUES 7 The main issue is whether the decision of the Commissioner is supported by 8 substantial evidence and free of harmful legal error. Molina v. Astrue, 674 F.3d 1104, 9 10 1110-11 (9th Cir. 2012). Plaintiff raises the following specific issues: 11 1. Did the Administrative Law Judge (ALJ) reasonably find Plaintiff’s mental 12 impairments did not meet Listing 12.05(C)? 13 14 2. Does substantial evidence support the ALJ’s residual functional capacity 15 finding? 16 3. Does substantial evidence support the ALJ’s step five determination that 17 18 Plaintiff could perform work existing in significant numbers in the national 19 economy? 20 ECF No. 18 at 1. 21 PROCEDURAL HISTORY 22 23 Plaintiff filed his application for Supplemental Security Income payments in 24 February 2013, alleging his disability began on January 30, 2013. Tr. 10. After the 25 application was denied initially and on reconsideration, Plaintiff requested an 26 27 administrative hearing. Tr. 137. During the hearing, Plaintiff amended his alleged 28 2 Case 2:16-cv-04047-DLR Document 19 Filed 06/07/17 Page 3 of 16 1 disability onset date to February 22, 2013, the date of his application. Tr. 10. The ALJ 2 obtained testimony from Plaintiff and, on March 27, 2015, issued a decision finding 3 Plaintiff not disabled. Tr. 10-20. The Appeals Council denied Plaintiff’s request for 4 5 review, making the ALJ’s decision the final agency decision. Tr. 1-3. This appeal 6 followed. 7 STATEMENT OF THE FACTS 8 The Commissioner adopts the ALJ’s summary of the facts and, in the Argument 9 10 section below, discusses the relevant facts and law with citation to the record. Tr. 10-20. 11 STANDARD OF REVIEW 12 This Court should affirm the Commissioner’s final decision if it is supported by 13 14 substantial evidence and free of harmful legal error. 42 U.S.C. § 405(g); Tommasetti v. 15 Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). The "key question is not whether there is 16 substantial evidence that could support a finding of disability, but whether there is 17 18 substantial evidence to support the Commissioner’s actual finding that claimant is not 19 disabled." Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). 20 Substantial evidence "is a highly deferential standard of review" and "means such 21 22 relevant evidence as a reasonable mind might accept as adequate to support a 23 conclusion.’" Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 24 2009). The Commissioner’s findings must be upheld if they are supported by inferences 25 reasonably drawn from record evidence. Tommasetti, 533 F.3d at 1038. This court may 26 27 not substitute its judgment for that of the ALJ if the evidence "reasonably supports either 28 3 Case 2:16-cv-04047-DLR Document 19 Filed 06/07/17 Page 4 of 16 1 confirming or reversing the ALJ’s decision." Batson v. Comm’r of Soc. Sec. Admin., 359 2 F.3d 1190, 1196 (9th Cir. 2004). Moreover, "[a] claimant is not entitled to benefits under 3 the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ’s 4 5 errors may be." Strauss v. Comm’r, 635 F.3d 1135, 1138 (9th Cir. 2011). 6 BURDENS AND SEQUENTIAL EVALUATION PROCESS 7 The burden was on Plaintiff to prove he was disabled within the meaning of the 8 9 Act. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). Disability is the "inability to 10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which has 12 lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 13 14 U.S.C. § 1382c(a)(3)(A). A claimant is disabled only if his impairments were of such 15 severity that he was not only unable to do his previous work but could not, considering 16 his age, education, and work experience, engage in any other substantial gainful activity 17 18 existing in the national economy. 42 U.S.C. § 1382c(a)(3)(B); Tackett, 180 F.3d at 1098. 19 Claims of disability are evaluated under a five-step sequential evaluation process. 20 20 C.F.R. § 416.920(a). Plaintiff has the burden of proof at steps one through four. 21 22 Tackett, 180 F.3d at 1098-99. At step five, the burden of production shifts to the 23 Commissioner to identify jobs existing in significant numbers in the national economy 24 that Plaintiff can perform in light of his residual functional capacity, age, education, and 25 work experience. 20 C.F.R. § 416.960(c)(2). 26 27 28 4 Case 2:16-cv-04047-DLR Document 19 Filed 06/07/17 Page 5 of 16 1 ALJ’S FINDINGS 2 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity 3 since his alleged onset date of disability. Tr. 12. At step two, the ALJ determined 4 5 Plaintiff had the following severe impairments: degenerative disc disease of the cervical 6 and lumbar spine; diabetes mellitus; obesity; major depressive disorder; and learning 7 disorder, not otherwise specified. Tr. 12. At step three, the ALJ found Plaintiff did not 8 have an impairment or combination of impairments that met or medically equaled the 9 10 severity of listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 13. 11 Prior to step four, the ALJ found that Plaintiff had the residual functional capacity 12 to perform light work, as defined in 20 C.F.R. § 416.967(b), but with additional 13 14 limitations. Tr. 14. Specifically, the ALJ found that Plaintiff could climb ramps and 15 stairs, balance, stoop, kneel, crouch, and crawl frequently. Plaintiff could climb ladders 16 occasionally, but could never climb ramps and stairs and needed to avoid concentrated 17 18 exposure to pulmonary irritants. Plaintiff could understand, remember, and carry out 19 simple instructions and perform simple, routine, and repetitive tasks. Tr. 14. 20 At step four, the ALJ found Plaintiff did not have any past relevant work. Tr. 18. 21 However, at step five, the ALJ found Plaintiff could perform jobs existing in significant 22 23 numbers in the national economy identified by the vocational expert: housekeeping 24 cleaner and fast food worker. Tr. 19. The ALJ determined Plaintiff had not been under a 25 disability during the period beginning on the application date and ending on the date of 26 27 the decision. Tr. 19-20. 28 5 Case 2:16-cv-04047-DLR Document 19 Filed 06/07/17 Page 6 of 16 1 ARGUMENT 2 I. The ALJ reasonably found that Plaintiff’s mental impairments did not meet 3 Listing 12.05(C). 4 Plaintiff argues the ALJ erred in finding that Plaintiff’s mental impairments did 5 not meet Listing 12.05(C), which addresses the impairment of "intellectual disability." 6 ECF No. 18 at 11-15. At step three of the sequential evaluation process, the ALJ 7 8 considers whether a claimant’s impairment or combination of impairments meets or 9 equals an impairment that presumptively demonstrates disability. 20 C.F.R. § 10 416.920(d); 20 C.F.R. pt. 404, subpt. P, app. 1 (Listings). As the Listings describe 11 12 presumptive disability, the requirements are purposely set at a high level of severity. 13 Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (citing Sulivan v. Zebley, 493 14 U.S. 521, 532 (1990)). Contrary to Plaintiff’s assertion, the ALJ reasonably determined 15 16 that Plaintiff’s mental impairments did not satisfy all the elements required to meet 17 Listing 12.05(C). Tr. 13-14. 18 To show his impairment met Listing 12.05(C), a claimant must demonstrate: (1) 19 significantly subaverage general intellectual functioning with deficits in adaptive 20 21 functioning with an onset before age 22; (2) a valid verbal, performance, or full scale IQ 22 of 60 to 70; and (3) a physical or other mental impairment imposing an additional and 23 significant work-related limitation of function. 20 C.F.R. Pt. 404, Subpt. P, app. 1, 24 25 §12.05, 12.05(C); see also Kennedy, 738 F.3d at 1174. Here, the ALJ found that Plaintiff 26 did not meet the first element—that is, Plaintiff did not "present with significantly 27 28 6 Case 2:16-cv-04047-DLR Document 19 Filed 06/07/17 Page 7 of 16 1 subaverage intellectual functioning with deficits in adaptive functioning initially 2 manifested before age 22." Tr. 13. 3 Substantial evidence supports the ALJ’s finding. "Adaptive functioning" 4 5 describes a person’s "effectiveness in areas such as social skills, communication, and 6 daily living skills, and how well the person meets the standards of personal independence 7 and social responsibility expected of his or her age by his or her cultural group." Heller 8 v. Doe, 509 U.S. 312, 329 (1993). Deficits in adaptive functioning are shown by 9 10 "significant limitations in at least two of the following skill areas: communication, self-11 care, home living, social/interpersonal skills, use of community resources, self-direction, 12 functional academic skills, work, leisure, health, and safety." American Psychiatric 13 14 Association, Diagnostic and Statistical Manual of Mental Disorders, Text Revision 15 (DSM IV-TR) 49 (4th ed. 2000). Here, the ALJ reasonably determined that Plaintiff did 16 not have such significant limitations because the record showed he had "no limitation in 17 18 activities of daily living and social functioning, moderate limitations in concentration, 19 persistence or pace, and has experienced no episodes of decompensation." Tr. 13. For 20 example, Plaintiff reported he had no problems performing activities of personal care, 21 including dressing, bathing, shaving, and feeding himself. Tr. 18, 238. His daily routine 22 23 included going outside his home, driving his daughter to school, and taking his daughter 24 to the park. Tr. 18, 239, 352. He performed housework (such as vacuuming and doing 25 dishes), cared for two dogs, shopped at grocery stores, cooked for his family, and 26 27 attended church. Tr. 18, 239-40, 352, 359. During psychological examinations, he was 28 cooperative, had clear speech, and was cognitively intact. Tr. 18, 352. He had good 7 Case 2:16-cv-04047-DLR Document 19 Filed 06/07/17 Page 8 of 16 1 memory and recall, was able to follow a three-step command, and could write a complete 2 sentence and draw complicated diagrams. Tr. 18, 352. He informed a clinician that 3 although he did not finish high school, he was able to pass the General Educational 4 5 Development (GED) test. Tr. 18, 358. He completed training to become a caregiver, and 6 thereafter worked as a caregiver for his father. Tr. 18, 222, 358. Given such robust 7 activities, the ALJ reasonably determined Plaintiff did not have deficits in adaptive 8 functioning. Tr. 13. As Plaintiff failed to satisfy the first of the three requisite elements 9 10 of Listing 12.05(C), the ALJ reasonably found Plaintiff’s mental impairments did not 11 meet the Listing. Tr. 13. 12 In disputing the ALJ’s determination, Plaintiff cites his own hearing testimony that 13 14 he claims shows his level of functioning was more restricted than the ALJ found. ECF 15 No. 18 at 13. For example, Plaintiff claims that he failed his driving test four times and 16 that his mother helped care for his daughter. ECF No. 18 at 13. However, Plaintiff’s 17 18 recitation of his own testimony does not undermine the ALJ’s finding because the ALJ 19 reasonably found Plaintiff’s statements were unreliable.1 Tr. 15-17. Moreover, even if 20 the ALJ had not rejected Plaintiff’s statements, Plaintiff’s recitation of his own testimony 21 does not undermine the ALJ’s finding because this Court’s inquiry is limited to whether 22 23 substantial evidence supported the ALJ’s decision. Holohan v. Massanari, 246 F.3d 24 1 25 The ALJ offered several legally valid reasons supported by substantial evidence to find that Plaintiff’s statements and testimony were unreliable. Tr. 15-17. As Plaintiff 26 does not challenge this finding by the ALJ (see ECF No. 18 at 1), Plaintiff has waived the 27 issue. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 n.7 (9th Cir. 2009) ("This argument, however, was not made in Bray’s opening brief; thus, we deem it 28 waived."). 8 Case 2:16-cv-04047-DLR Document 19 Filed 06/07/17 Page 9 of 16 1 1195, 1201 (9th Cir. 2001) ("If the evidence can support either outcome, we may not 2 substitute our judgment for that of the ALJ."). As discussed above, the ALJ cited record 3 evidence to support his finding that Plaintiff’s daily functioning did not demonstrate he 4 5 had deficits in adaptive functioning. Tr. 13. 6 Plaintiff’s recitation of observations and findings by examining clinicians, such 7 has "provisional" diagnoses of learning disorder (ECF No. 18 at 13-14), similarly misses 8 the point because it does not address the factors relevant to the first factor of Listing 9 10 12.05(C)—whether the individual has deficits in adaptive functioning. "Adaptive 11 functioning" refers to an individual’s "effectiveness in areas such as social skills, 12 communication, and daily living skills, and how well the person meets the standards of 13 14 personal independence and social responsibility expected of his or her age by his or her 15 cultural group." Heller, 509 U.S. at 329. Specifically, deficits in adaptive functioning 16 are shown by "significant limitations in at least two of the following skill areas: 17 18 communication, self-care, home living, social/interpersonal skills, use of community 19 resources, self-direction, functional academic skills, work, leisure, health, and safety." 20 DSM IV-TR at 49. As discussed, the ALJ identified evidence in the record that 21 demonstrated Plaintiff had no significant limitations in his daily activities, and that he 22 23 therefore failed to meet the first requisite element of Listing 12.05(C). Tr. 13, 18. 24 "Listed impairments are purposefully set at a high level of severity because the 25 listings were designed to operate as a presumption of disability that makes further inquiry 26 27 unnecessary." Kennedy, 738 F.3d at 1176 (internal quotation marks omitted). The ALJ, 28 by citing evidence in the record showing generally robust daily functioning, reasonably 9 Case 2:16-cv-04047-DLR Document 19 Filed 06/07/17 Page 10 of 16 1 determined that Plaintiff’s mental impairments did not meet the high level of severity. 2 Tr. 13. As long as there is "such relevant evidence as a reasonable mind might accept as 3 adequate to support [the ALJ’s] conclusion," it should not be overturned. Valentine, 574 4 5 F.3d at 690. The Court should thus affirm. 6 II. Substantial evidence supports the ALJ’s residual functional capacity finding, which included all of Plaintiff’s limitations that were supported by record 7 evidence. 8 The ALJ found Plaintiff had the residual functional capacity to perform a reduced 9 10 range of light work, including performing simple, routine, and repetitive tasks. Tr. 14. 11 The "residual functional capacity is the most [a claimant] can still do despite [his] 12 limitations." 20 C.F.R. § 416.945(a). "[T]he ALJ is responsible for translating and 13 14 incorporating clinical findings into a succinct [residual functional capacity] finding." 15 Rounds v. Comm’r Soc. Sec. Admin., 795 F.3d 1177, 1185–86 (9th Cir. 2015). In making 16 a residual functional capacity determination, the ALJ need only take into account "those 17 18 limitations for which there was record support" and may exclude unreliable limitations 19 that "depend on [the claimant’s] subjective complaints." Bayliss v. Barnhart, 427 F.3d 20 1211, 1217 (9th Cir. 2005). The ALJ is also "not required to incorporate evidence" from 21 medical opinions that the ALJ "permissibly discounted." Batson, 359 F.3d at 1197. 22 23 Here, the ALJ reasonably excluded from the residual functional capacity Plaintiff’s 24 unreliable subjective complaints, as well as medical opinions that were unreliable. Tr. 25 14-18.2 As the ALJ’s residual functional capacity finding included all limitations 26 27 28 2 As noted, Plaintiff does not dispute the ALJ’s determination that Plaintiff’s 10 Case 2:16-cv-04047-DLR Document 19 Filed 06/07/17 Page 11 of 16 1 supported by the record evidence, while excluding those limitations that were unreliable, 2 it was reasonable and should be upheld. Tr. 14. 3 Plaintiff disputes the ALJ’s finding. ECF No. 18 at 15-18. Plaintiff first claims 4 5 that the ALJ’s residual functional capacity determination did not account for limitations 6 in social functioning. ECF No. 18 at 15. However, Plaintiff makes no effort to challenge 7 the evidence that the ALJ identified to support his finding that Plaintiff had no limitations 8 in social functioning, such as shopping in grocery stores, attending church, and his 9 10 cooperative demeanor during clinical examinations. See Tr. 13, 18, 239-40, 352. 11 Instead, Plaintiff cites several medical opinions and claims that the "overall indication of 12 these opinions... is that [he] has at least mild limitation in maintaining social 13 14 functioning, particularly within the context of a work setting." ECF No. 18 at 16 15 (emphasis added). Even assuming Plaintiff’s interpretation of these medical opinions is 16 correct,3 he fails to demonstrate how the ALJ’s residual functional capacity failed to 17 18 account for such "mild" limitations in social functioning. Indeed, contrary to Plaintiff’s 19 assertion, mild limitations do not significantly interfere with work activities and therefore 20 need not be included in the residual functional capacity finding. See Osenbrock v. Apfel, 21 240 F.3d 1157, 1165 (9th Cir. 2001) (explaining that the "omission of depression from 22 23 the hypothetical question is supported by substantial evidence in the record" because 24 subjective complaints were unreliable. ECF No. 18 at 1. Plaintiff similarly does not 25 dispute the ALJ’s rejection of unreliable medical opinions. ECF No. 18 at 1. 26 3 The Commissioner does not concede the point, and asserts that the ALJ 27 reasonably evaluated the medical opinions in the record. Tr. 16-17. Plaintiff does not challenge the ALJ’s evaluation of these opinions and has thus waived the issue. Bray, 28 554 F.3d at 1226 n.7. 11 Case 2:16-cv-04047-DLR Document 19 Filed 06/07/17 Page 12 of 16 1 medical evaluations diagnosed claimant’s "depression as a mild impairment, which 2 presented no significant interference with the ability to perform basic work-related 3 activities"). "The ALJ is responsible for determining credibility, resolving conflicts in 4 5 medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 6 1156 (9th Cir. 2001). The ALJ reasonably did so here. 7 Plaintiff next argues that the ALJ’s residual functional capacity assessment did not 8 incorporate the ALJ’s own finding of "moderate" limitations in concentration, 9 10 persistence, or pace. ECF No. 18 at 15-18. In an attempt to support this assertion, 11 Plaintiff cites Brink v. Comm’r of Soc. Sec. Admin., 343 F. App’x 211 (9th Cir. 2009), an 12 unpublished Ninth Circuit case, for the proposition that moderate limitations in 13 14 concentration, persistence, or pace is incompatible with simple, repetitive work. ECF 15 No. 18 at 17. Plaintiff’s argument is faulty for two reasons. First, the residual functional 16 capacity in Brink limited the claimant to "simple, repetitive work." Brink, 343 F.3d at 17 18 212. In contrast, the ALJ’s residual functional capacity in this case was more restrictive 19 and limited Plaintiff to "simple, routine, repetitive tasks." Tr. 14 (emphasis added). 20 Unlike the residual functional capacity in Brink, the additional restrictions here 21 reasonably accounted for Plaintiff’s moderate limitations in concentration, persistence, or 22 23 pace. 24 Second, the ALJ specifically relied on psychological opinions indicating that 25 Plaintiff, despite having moderate limitations in concentration, persistence, or pace, could 26 27 nonetheless perform simple, routine, and repetitive tasks. Tr. 16-17. "[A]n ALJ’s 28 assessment of a claimant adequately captures restrictions related to concentration, 12 Case 2:16-cv-04047-DLR Document 19 Filed 06/07/17 Page 13 of 16 1 persistence, or pace where the assessment is consistent with restrictions identified in the 2 medical testimony." Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). 3 The ALJ here observed that examining psychologist Michael Rabara, Psy.D., determined 4 5 that Plaintiff could carry out simple instructions, make simple decisions, and perform 6 activities within a schedule, even if he would have moderate difficulty responding to 7 work setting changes. Tr. 17, 363. Indeed, in a section of the assessment form titled 8 "Sustained Concentration and Persistence," Dr. Rabara wrote: "[Plaintiff] can carry out 9 10 simple instructions and make simple instructions.... He can perform activities within a 11 schedule, work in coordination with others, and sustain an ordinary schedule." Tr. 363. 12 The ALJ further observed that the State agency reviewing psychological consultants 13 14 opined that Plaintiff could perform simple, repetitive work, even though they also 15 assessed Plaintiff with moderate limitations in concentration, persistence, and pace. Tr. 16 17, 98, 102. The ALJ’s residual functional capacity finding was thus consistent with the 17 18 restrictions identified in the medical testimony. 19 An ALJ "is responsible for translating and incorporating clinical findings into a 20 succinct [residual functional capacity] finding." Rounds, 795 F.3d at 1185–86. The 21 residual functional capacity assessment is based on all relevant evidence in the record, 22 23 not just medical evidence. 20 C.F.R. § 416.945(a). An ALJ’s residual functional 24 capacity finding is proper if it takes "into account those limitations for which there was 25 record support that did not depend on [the claimant’s unreliable] subjective complaints." 26 27 Bayliss, 427 F.3d at 1217. Similarly, an ALJ is not required to incorporate evidence from 28 medical opinions that the ALJ "permissibly discounted." Batson, 359 F.3d at 1197. 13 Case 2:16-cv-04047-DLR Document 19 Filed 06/07/17 Page 14 of 16 1 Here, the ALJ excluded from the residual functional capacity finding all limitations that 2 were unreliable, such as Plaintiff’s subjective complaints of functional limitations, as 3 well as the limitations described in unreliable medical opinions, by offering valid reasons 4 5 supported by substantial evidence. Tr. 14-17. As already noted, Plaintiff does not 6 challenge the ALJ’s evaluation of Plaintiff’s symptoms or the medical opinions at issue. 7 See ECF No. 18 at 1. As the ALJ’s residual functional capacity finding incorporated all 8 limitations that were supported by the record evidence, it was reasonable and should be 9 10 affirmed. 11 III. Substantial evidence supports the ALJ’s step five determination that Plaintiff 12 could perform jobs existing in significant numbers in the national economy. 13 Plaintiff challenges the ALJ’s step five determination that Plaintiff could perform 14 work existing in significant numbers in the national economy. ECF No. 18 at 18. 15 16 Plaintiff offers no new or independent arguments to support this assignment of error, and 17 instead merely repeats his previous arguments that the ALJ’s residual functional capacity 18 finding is not supported by substantial evidence. ECF No. 18 at 18. But a claimant does 19 20 not establish that the ALJ’s step five determination was incorrect by simply restating his 21 argument that the ALJ’s residual functional capacity assessment did not account for all 22 his limitations. Stubbs-Danielson, 539 F.3d at 1175-76. As just discussed, the ALJ’s 23 residual functional capacity finding included all of Plaintiff’s limitations that were 24 25 supported by the record evidence, while properly excluding limitations that were 26 unreliable. 27 28 14 Case 2:16-cv-04047-DLR Document 19 Filed 06/07/17 Page 15 of 16 1 Lastly, Plaintiff asks this Court to find Plaintiff disabled and to remand for 2 "calculation of benefits." ECF at 18 at 19. Courts may credit evidence as "true" and 3 award benefits only in narrow circumstances. Treichler v. Comm’r of Soc. Sec. Admin., 4 5 775 F.3d 1090, 1099-1102 (9th Cir. 2014).4 However, Plaintiff here has made no effort 6 to demonstrate that these rare circumstances are present. Thus, even if the Court should 7 find the ALJ committed harmful error, the only appropriate remedy is a remand for 8 further proceedings. 9 10 CONCLUSION 11 As the ALJ applied correct the legal standards and supported his decision with 12 substantial evidence, his decision should be affirmed. 42 U.S.C. § 405(g). 13 14 15 DATED this 7th day of June 2017. 16 Respectfully submitted, 17 18 Elizabeth A. Strange Acting United States Attorney 19 District of Arizona 20 s/Ryan Lu 21 RYAN LU Special Assistant United States Attorney 22 23 24 25 26 4 27 As a matter of record, the Commissioner disagrees with the credit-as-true rule. See Vasquez v. Astrue, 572 F.3d 586, 601 (9th Cir. 2009) (amended opinion) 28 (O’Scannlain, J., dissenting). 15 Case 2:16-cv-04047-DLR Document 19 Filed 06/07/17 Page 16 of 16 1 Of Counsel for the Defendant: 2 MATTHEW W. PILE 3 Acting Regional Chief Counsel, Social Security Administration Office of the General Counsel, Region X 4 701 Fifth Avenue, Suite 2900 M/S 221A 5 Seattle, WA 98104-7075 6 7 8 CERTIFICATE OF SERVICE 9 I hereby certify that the foregoing Defendant’s Brief was filed with the 10 Clerk of the Court on June 7, 2017, using the CM/ECF system, which will send 11 12 notification of such filing to the following: Howard D. Olinsky. 13 14 s/Ryan Lu 15 RYAN LU Special Assistant United States Attorney 16 Office of the General Counsel 17 18 19 20 21 22 23 24 25 26 27 28 16

REPLY BRIEF by Scott Robert Shaffer.

Case 2:16-cv-04047-DLR Document 20 Filed 06/22/17 Page 1 of 5 1 Howard D. Olinsky 2 Attorney for Plaintiff Admitted Pro Hac Vice 3 One Park Place 4 300 South State St., Suite 420 Syracuse, New York 13202 5 Phone: (315) 701-5780 6 Facsimile: (315) 701-5781 Email: holinsky@windisability.com 7 8 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 9 Scott Robert Shaffer, No. 2:16-CV-04047-DLR 10 Plaintiff, 11 REPLY BRIEF OF PLAINTIFF vs. [Dist. Ariz. Local Rule Civil 12 16.1(c)] 13 Nancy A. Berryhill, Acting Commissioner of Social 14 Security, 15 Defendant 16 17 Plaintiff relies on and reasserts the arguments made in her Opening Brief at Dkt. 18 18 and addresses the following particular point in response to Defendant’s Brief at Dkt. 19 No. 19. 20 21 1. The RFC determination is not supported by substantial evidence. 22 Defendant argues that the additional restriction of "routine" in the ALJ’s RFC 23 limitation of "simple, routine, repetitive tasks" reasonably accounted for Plaintiff’s 24 25 moderate limitations in concentration, persistence, or pace ("CPP"). Dkt. No. 19 at 12. 26 Defendant indicates that in Brink v. Comm’r of Soc. Sec. Admin., the RFC limited the 27 claimant to "simple, repetitive work." 343 F. App’x 211, 213 (9th Cir. 2009). Defendant 28 Page 1 Case 2:16-cv-04047-DLR Document 20 Filed 06/22/17 Page 2 of 5 1 cites no authority or evidence to illustrate how the addition of "routine" to the ALJ’s RFC 2 here adequately accounts for Plaintiff’s moderate limitation in CPP. Other circuits have 3 4 rejected the notion that a hypothetical limiting a claimant to "‘simple, routine tasks and 5 limited interactions with others adequately captures temperamental deficiencies and 6 limitations in concentration, persistence, and pace.’" Varga v. Colvin, 794 F.3d 809, 814-7 8 15 (7th Cir. 2015) (quoting Yurt v. Colvin, 758 F.3d 850, 858-59 (7th Cir. 2014)) 9 (internal citations omitted)(emphasis added). See also Winschel v. Comm’r of Soc. Sec., 10 631 F.3d 1176, 1180 (11th Cir. 2011). 11 Additionally, Defendant points out that Brink is an unpublished Ninth Circuit case. 12 13 Dkt. No. 19 at 12. However, this Court has previously noted that "[a]lthough Brink is an 14 unpublished decision and thus only of persuasive value, it is instructive in regards to how 15 it distinguished Stubbs-Danielson [v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008)]." 16 17 Moza v. Astrue, 2012 WL 1869364, *4-5 (D. Ariz. May 22, 2012). Where, as here, the 18 evidence establishes Plaintiff has difficulties with concentration, persistence, or pace, 19 Stubbs-Danielson is inapposite and Brink is analogous. Id. See also Perkins v. Colvin, 45 20 21 F.Supp.3d 1137, 1153 (D. Ariz. 2014). 22 Defendant notes that the "ALJ further observed that the State agency reviewing 23 psychological consultants opined Plaintiff could perform simple, repetitive work, even 24 25 though they also assessed Plaintiff with moderate limitations in concentration, 26 persistence, and pace" and thus the ALJ’s RFC finding is consistent with the restrictions 27 identified in the medical testimony. Dkt. No. 19 at 13, T 17, 98-99, 102. However, the 28 Page 2 Case 2:16-cv-04047-DLR Document 20 Filed 06/22/17 Page 3 of 5 1 ALJ’s RFC finding is undermines Defendant’s contentions. The ALJ afforded the opinion 2 that Plaintiff could perform simple, repetitive work great weight, but limited weight to 3 4 the remainder of the opinion, including the moderate limitations in CPP. T 17, 98-99, 5 102-03, 113-15, 118-20. As Defendant points out, the ALJ added the further limitation of 6 "routine" tasks, but neither the ALJ nor Defendant’s counsel has provided an explanation 7 8 of why "routine" was added to the RFC assessment of the State agency reviewing 9 psychological consultants, or how it adequately accounts for moderate limitations in 10 maintaining concentration, persistence, or pace. See Varga, 794 F.3d at 814-15. 11 Plaintiff reasserts his argument that the ALJ’s RFC does not adequately account 12 13 for this limitation, particularly in light of his demonstrated need for redirection to stay on 14 task and poor ability to acquire, retain, and retrieve general factual knowledge. Dkt. No. 15 18 at 16-18. Just as the ability to carry out simple instructions and make simple decisions 16 17 (as Dr. Rabara opined) does not equate to the ability to sufficiently maintain CPP in a 18 competitive work setting, additional limitation to routine tasks does not equate to that 19 ability. Administrative Transcript ("T") at 360-63. See Mascio v. Colvin, 780 F.3d 632, 20 21 638 (4th Cir. 2015) (indicating that "the ability to perform simple tasks differs from the 22 ability to stay on task."). 23 Conclusion 24 25 For the foregoing reasons and those argued in Plaintiff’s Opening 26 Brief, it is respectfully requested this matter be remanded for calculation of benefits, or in 27 28 Page 3 Case 2:16-cv-04047-DLR Document 20 Filed 06/22/17 Page 4 of 5 1 the alternative, for further proceedings, including a de novo hearing and decision to 2 address these errors. 3 4 Respectfully submitted, 5 6 Dated: June 22, 2017/s/Howard D. Olinsky 7 Howard D. Olinsky, Esq. 8 Attorney for Plaintiff Admitted Pro Hac Vice 9 Olinsky Law Group 10 One Park Place 300 South State St., Suite 420 11 Syracuse, New York 13202 Phone: (315) 701-5780 12 Email: holinsky@windisability.com 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 4 Case 2:16-cv-04047-DLR Document 20 Filed 06/22/17 Page 5 of 5 1 CERTIFICATE OF SERVICE 2 I hereby certify that on June 22, 2017 I electronically filed Plaintiff’s reply brief 3 4 with the Clerk of the District Court using the CM/ECF system, which sent notification of 5 such filing to the following: 6 To: Ryan Lu 7 Special Assistant U.S. Attorney 8 Elizabeth A. Strange 9 Acting U.S. Attorney 10/s/Howard D. Olinsky 11 Howard D. Olinsky, Esq. Attorney for Plaintiff 12 13 Howard D. Olinsky 14 Admitted Pro Hac Vice Olinsky Law Group 15 300 South State Street, Suite 420 16 Syracuse, NY 13202 NY State Bar No. 2044865 17 Telephone: (315) 701-5780 18 Facsimile: (315) 701-5781 holinsky@windisability.com 19 Attorney for Plaintiff Robert Shaffer 20 21 22 23 24 25 26 27 28 Page 5

ORDER: The Commissioner's decision is AFFIRMED. The Clerk of the Court shall terminate this case. Signed by Judge Douglas L Rayes on 3/30/2018.

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Scott Robert Shaffer, No. CV-16-04047-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 Plaintiff applied for Supplemental Security Income on February 22, 2013, alleging 17 disability beginning January 1, 2013. (A.R. 10.) The claim was denied initially on June 18 26, 2013, and upon reconsideration on November 13, 2013. (Id.) Plaintiff then requested 19 a hearing. (Id.) On December 2, 2014, Plaintiff and a vocational expert (VE) testified at 20 a hearing before an Administrative Law Judge (ALJ). (Id. at 37-88.) During the hearing, 21 Plaintiff amended his disability onset date to February 22, 2013. (Id. at 10.) 22 On March 27, 2015, the ALJ issued a written decision finding Plaintiff not 23 disabled within the meaning of the Social Security Act, which became the 24 Commissioner's final decision when the Appeals Council denied review. (Id. at 1-4, 10- 25 20.) On November 22, 2016, Plaintiff sought review by this Court. (Doc. 1.) After 26 receipt of the administrative record (Doc. 17), the parties fully briefed the issues for 27 review (Docs. 18-20). For reasons stated below, the Court affirms the Commissioner's 28 decision. 1 BACKGROUND 2 To determine whether a claimant is disabled for purposes of the Social Security 3 Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). At the first step, the 4 ALJ determines whether the claimant is engaging in substantial gainful activity. § 5 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. At step two, 6 the ALJ determines whether the claimant has a "severe" medically determinable physical 7 or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the 8 inquiry ends. At step three, the ALJ considers whether the claimant's impairment or 9 combination of impairments meets or medically equals an impairment listed in Appendix 10 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is 11 automatically found to be disabled. If not, the ALJ proceeds to step four. At step four, 12 the ALJ assesses the claimant's residual functional capacity (RFC) and determines 13 whether the claimant is still capable of performing past relevant work. § 14 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. If not, the 15 ALJ proceeds to the fifth and final step, where she determines whether the claimant can 16 perform any other work based on the claimant's RFC, age, education, and work 17 experience. § 404.1520(a)(4)(v). If so, the claimant is not disabled. If not, the claimant 18 is disabled. 19 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful 20 activity since February 22, 2013. (A.R. 12.) At step two, the ALJ found that Plaintiff has 21 the following severe impairments: degenerative disc disease of the cervical and lumbar 22 spine, diabetes mellitus, obesity, major depressive disorder and learning disorder. (Id.) 23 At step three, the ALJ determined that Plaintiff's listed impairments do not meet or equal 24 the severity of one of the listed impairments in Appendix 1 to Subpart P of 20 C.F.R. Pt. 25 404. (Id. at 13.) At step four, the ALJ found that Plaintiff: 26 has the [RFC] to perform light work. . . except he can climb ramps and stairs, balance, stoop, kneel, crouch and crawl 27 frequently, climb ladders occasionally and never climb ropes and scaffolds, must avoid concentrated exposure to 28 pulmonary irritants, and can understand, remember and carry out simple instructions and perform simple, routine, repetitive -2- 1 tasks. 2 (Id. at 14.) The ALJ also found that Plaintiff has no past relevant work. (Id. at 18.) At 3 step five, however, after considering Plaintiff's age, education, work experience, and 4 RFC, the ALJ concluded that there are jobs that exist in significant numbers in the 5 national economy that Plaintiff can perform. (Id. at 19.) Accordingly, the ALJ found 6 Plaintiff not disabled. (Id. at 19-20.) 7 STANDARD OF REVIEW 8 It is not the district court's role to review the ALJ's decision de novo or otherwise 9 determine whether the claimant is disabled. Rather, the court is limited to reviewing the 10 ALJ's decision to determine whether it "contains legal error or is not supported by 11 substantial evidence." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial 12 evidence is more than a scintilla but less than a preponderance, and "such relevant 13 evidence that a reasonable mind might accept as adequate to support a conclusion." Id. 14 "Where evidence is susceptible to more than one rational interpretation, the ALJ's 15 decision should be upheld." Id. The court, however, "must consider the entire record as 16 a whole and may not affirm simply by isolating a 'specific quantum of supporting 17 evidence.'" Id. Nor may the court "affirm the ALJ on a ground upon which he did not 18 rely." Id. 19 DISCUSSION 20 On appeal, Plaintiff challenges the ALJ's determination that Plaintiff's 21 impairments do not meet Listing 12.05C. Plaintiff also challenges whether the ALJ's 22 RFC and step five determinations are supported by substantial evidence. Having 23 reviewed the record and the parties' briefs, the Court concludes that the ALJ did not err. 24 I. The ALJ Did Not Error at Step Three 25 At step three, the ALJ considers whether Plaintiff's impairments meet or equal the 26 severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. If 27 Plaintiff's impairments rise to the level of a listed impairment, Plaintiff is disabled. 28 Here, the ALJ determined that Plaintiff's impairments did not meet or medically -3- 1 equal the criteria of listings 12.02, 12.04, and 12.05. (A.R. 13.) Plaintiff takes issue 2 with the ALJ's 12.05(C) finding. Listing 12.05(C), which concerns intellectual disability, 3 requires: (1) a valid verbal, performance, or full scale IQ of 60 through 70; (2) a physical 4 or other mental impairment imposing an additional and significant work-related 5 limitation of function; and (3) significantly subaverage general intellectual functioning 6 with deficits in adaptive functioning with an onset before age 22. See, e.g., Moua v. 7 Colvin, 563 Fed. App'x. 545, 546 (9th Cir. 2014) (quoting Listing 12.05(C)). Here, 8 whether Plaintiff has the requisite deficit in adaptive functioning is the only disputed 9 element. (Doc. 19 at 6-7). 10 "Adaptive functioning" describes a person's "effectiveness in areas such as social 11 skills, communication, and daily living skills, and how well the person meets the 12 standards of personal independence and social responsibility expected of his. . . age by 13 his. . . cultural group." Heller v. Doe, 509 U.S. 312, 329 (1993); see also Payne v. 14 Astrue, No. 08-CV-1753-PHX-LOA, 2010 WL 654319, at *11 (D. Ariz. Feb. 23, 2010). 15 "Deficits in adaptive functioning are shown by 'significant limitations in at least two of 16 the following areas: communication, self-care, home living, social/interpersonal skills, 17 use of community resources, self-direction, functional academic skills, work, leisure, 18 health, and safety." Burchfield v. Astrue, No. 11-CV-590-PHX-FJM, 2011 WL 5975764, 19 at *3 (D. Ariz. Nov. 20, 2011). The ALJ found that Plaintiff did not have two such 20 limitations. 21 Substantial evidence supports the ALJ's finding. The record demonstrates that 22 Plaintiff had no limitation in activities in daily living and social functioning. For 23 instance, Plaintiff reported no limitations performing activities of personal care, including 24 dressing, bathing, shaving and feeding himself. (A.R. 238.) Plaintiff performed 25 housework, cared for two dogs, shopped at grocery stores, cooked for his family, 26 attended church, and took multiple vacations with his family. (Id. at 18, 239-40, 352, 27 359.) Plaintiff also drove his daughter to school, took her to the park, and played card 28 games with her. (Id. at 18.) Moreover, Plaintiff completed training to become a -4- 1 caregiver and got his driver's license. (Id. at 222, 348.) Given the breadth of these 2 activities, the ALJ determined that Plaintiff did not have sufficient deficits in adaptive 3 functioning. 4 Although Plaintiff disputes the ALJ's determination, he does not dispute the 5 evidence cited. Instead, Plaintiff offers different evidence—i.e., that he dropped out of 6 school in the eighth grade, was in special education classes, and received a provisional 7 diagnosis that he has a learning disorder. (Doc. 18 at 13-14.) In so doing, Plaintiff 8 essentially asks the Court to reweigh the evidence rather than assess whether substantial 9 evidence supports the conclusion that the ALJ reached. Where, as here, "the evidence is 10 susceptible to more than one rational interpretation, one of which supports the ALJ's 11 decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 12 (9th Cir. 2002). The Court finds no error. 13 II. ALJ Properly Determined Plaintiff's RFC 14 Plaintiff claims that the ALJ's RFC determination is erroneous because: (1) it does 15 not account for his moderate limitations in concentration, persistence, or pace, and (2) the 16 record does not support the ALJ's finding regarding Plaintiff's level of social functioning 17 limitations. (Doc. 18 at 15.) The Court discusses each in turn. 18 A. Concentration, Persistence, or Pace 19 The ALJ is required to formulate the RFC based on the entire record. 20 C.F.R. § 20 1545(a)(3) (the RFC is based on all the relevant evidence, including diagnoses, treatment, 21 observations, and opinions of medical sources, as well as observations by family 22 members and the claimant's own subjective symptoms). The RFC findings need only be 23 consistent with the relevant assessed limitations and not identical to them. See Turner v. 24 Comm'r of Soc. Sec., 613 F.3d 1217, 1222-23 (9th Cir. 2010). 25 Here, the ALJ credited the opinions of Dr. Michael Rabara, a clinical psychologist. 26 (A.R. 17 (finding Dr. Rabara's opinions "consistent with the evidence" and deserving 27 "great probative weight").) With respect to Plaintiff's concentration and persistence, Dr. 28 Rabara opined: -5- 1 [Plaintiff] can carry out simple instructions and make simple decisions. He will have moderate difficulty carrying out 2 detailed instructions, sustaining his concentration, and completing a normal workday at a consistent pace. He can 3 perform activities within a schedule, work in coordination with others, and sustain an ordinary routine. 4 5 (Id. at 363.) In accordance with Dr. Rabara's opinions, the ALJ found that Plaintiff has 6 "moderate limitation in concentration, persistence, or pace. . ." (Id. 13.) Additionally, 7 the ALJ afforded some weigh to the opinion of consultative examiner Dr. Littlefield, 8 indicating that the record as a whole shows Plaintiff could perform simple, routine 9 repetitive tasks on a consistent basis. (Id. at 16-17, 103.) 10 The ALJ's RFC assessment denoted that Plaintiff could "perform simple, routine, 11 repetitive tasks," which the Commissioner argues adequately accounts for Plaintiff's 12 moderate limitations in concentration, persistence, and pace because "the ALJ 13 specifically relied on psychological opinions indicating that Plaintiff, despite having 14 moderate limitations in concentration, persistence, or pace, could nonetheless perform 15 simple, routine, and repetitive tasks." (Id. at 13; Doc. 19 at 12.) The Court agrees. See 16 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008). 17 In arguing otherwise, Plaintiff urges the Court to follow Brink v. Commissioner of 18 Social Security Administration, 343 Fed. App'x 211 (9th Cir. 2009), an unpublished 19 decision in which the Ninth Circuit attempted to distinguish Stubbs-Danielson and 20 determined that a limitation to simple, repetitive work did not account for moderate 21 limitations in concentration, persistence, and pace. Brink's rationale for distinguishing 22 Stubbs-Danielson, however, is not without its criticisms: 23 The reasoning offered in Brink to distinguish Stubbs- Danielson is not persuasive. In Stubbs-Danielson, two 24 doctors opined the claimant had limitations in pace: Dr. McCollum determined Plaintiff had "slow pace, both with 25 thinking and her actions" and found the claimant "moderately limited" in the ability to perform at a consistent pace without 26 an unreasonable number and length of rest periods; Dr. Eather also identified "a slow pace, both in thinking & 27 actions." Stubbs-Danielson, 539 F.3d at 1173. The Stubbs- Danielson court concluded, however, that the pace limitations 28 were adequately translated into the only "concrete restrictions available" which was a restriction to simple tasks that -6- 1 matched the conclusion of Dr. Eather. Id. (citing Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001)). 2 Distinguishing Stubbs-Danielson on the ground that there was no evidence of functional limitation in concentration, 3 persistence, and pace is not persuasive, and, as an unpublished memorandum decision, Brink is not controlling 4 authority. 5 Calisti v. Colvin, No. 1:14-cv-02000-SKO, 2015 WL 7428724, at *9 (E.D. Cal. Nov. 23, 6 2015); but see Perkins v. Colvin, 45 F. Supp. 3d 1137, 1153 (D. Ariz. 2014); Moza v. 7 Astrue, No. 10-CV-67-TUC-BPV, 2012 WL 1869364, at *4-5 (D. Ariz. May 22, 2012). 8 In fact, Brink seems to be an outlier even among unpublished decisions. See Israel v 9 Astrue, 494 Fed. App'x 794 (9th Cir. 2012); Sabin v. Astrue, 337 Fed. App'x 617 (9th 10 Cir. 2009). As a published decision, Stubbs-Danielson carries more weight and therefore 11 the Court finds no error. 12 B. Social Functioning 13 Plaintiff also challenges that ALJ's finding regarding his limitations in social 14 functioning. In support of his argument, Plaintiff highlights that state agency consultants 15 opined that he suffered from mild to moderate difficulties in social functioning. (Doc. 18 16 at 15.) Although Plaintiff notes these opinions, he makes no effort to challenge the 17 evidence that the ALJ identified to support his finding that Plaintiff had no limitations in 18 social functioning. For instance, Dr. Rabara opined that Plaintiff had "no limitations" in 19 social interaction. (A.R. 363.) Moreover, the ALJ relied on Plaintiff's own testimony 20 that he shops at grocery stores, attends church, travels with his family, and has a 21 cooperative demeanor during clinical examinations. (Id. at 13, 18, 239-40, 352.) The 22 Court finds that the ALJ's decision is supported by substantial evidence.1 23 /// 24 /// 25 /// 26 27 1 Plaintiff separately challenges the ALJ's step five finding, but his argument on this issue merely repeats his previous argument that the ALJ's RFC finding is not 28 supported by substantial evidence. Therefore, for the reasons stated above, the ALJ did not err at step five. -7- 1 CONCLUSION 2 The ALJ's decision is free of harmful legal error and supported by substantial 3 evidence. Therefore, 4 IT IS ORDERED that the Commissioner's decision is AFFIRMED. The Clerk 5 of the Court shall terminate this case. 6 Dated this 30th day of March, 2018. 7 8 9 10 Douglas L. Rayes 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-

CLERK'S JUDGMENT - Pursuant to the Court's Order filed March 30, 2018, the Decision of the Commissioner of Social Security is AFFIRMED and this action is hereby terminated.

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Scott Robert Shaffer, NO. CV-16-04047-PHX-DLR 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 March 30, 2018, the Decision of the Commissioner of Social Security is AFFIRMED and 19 this action is hereby terminated. 20 Brian D. Karth District Court Executive/Clerk of Court 21 22 March 30, 2018 s/ Rebecca Kobza 23 By Deputy Clerk 24 25 26 27 28

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Description
1
11/22/2016
COMPLAINT filed by Scott Robert Shaffer (submitted by Howard Olinsky).
1
https://ecf.azd.uscourts.gov/doc1/025116684664" onClick="goDLS{{'/doc1/025116684664','1010499','6','','2','1','',''}};">1</a> Civil Cover Sheet)
1 Attachment
2
11/22/2016
APPLICATION for Leave to Proceed In Forma Pauperis by Scott Robert Shaffer (submitted by Howard Olinsky).
3
11/22/2016
SUMMONS Submitted by Scott Robert Shaffer (submitted by Howard Olinsky).
1
Summons
2
https://ecf.azd.uscourts.gov/doc1/025116684731" onClick="goDLS{{'/doc1/025116684731','1010499','10','','2','1','',''}};">2</a> Summons)
2 Attachments
4
11/22/2016
This case has been assigned to the Honorable Douglas L Rayes. All future pleadings or documents should bear the correct case number: CV-16-04047-PHX-DLR. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached.
5
11/23/2016
MOTION for Admission Pro Hac Vice as to attorney Howard D. Olinsky by Scott Robert Shaffer.
1
Letter to Clerk
1 Attachment
6
12/01/2016
ORDER granting 2 Application to Proceed in District Court Without Prepaying Fees. Plaintiff shall be responsible for service of the summons and complaint. Signed by Judge Douglas L Rayes on 11/29/2016.
7
12/01/2016
SCHEDULING ORDER: Within sixty (60) days after the answer is filed, Plaintiff must file an opening brief. (See Order for details.) Signed by Judge Douglas L Rayes on 12/1/2016.
12/01/2016
PRO HAC VICE FEE PAID. $ 35, receipt number PHX179323 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.)
8
12/01/2016
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.)
9
12/02/2016
Summons Issued as to Carolyn W Colvin, U.S. Attorney and U.S. Attorney General.
1
Summons
2
https://ecf.azd.uscourts.gov/doc1/025116721315" onClick="goDLS{{'/doc1/025116721315','1010499','24','','2','1','',''}};">2</a> Summons)
2 Attachments
10
12/13/2016
SERVICE EXECUTED filed by Scott Robert Shaffer: Return of Service re: Summons, Complaint and Scheduling Order upon US Attorney's Office, Office of General Counsel, Attorney General on 12/12/2016.
11
02/07/2017
NOTICE OF ATTORNEY APPEARANCE: Ryan Lu appearing for Commissioner of Social Security Administration.
12
02/07/2017
First MOTION for Extension of Time to File Answer re: [1] Complaint Unopposed by Commissioner of Social Security Administration.
1
Text of Proposed Order
1 Attachment
13
02/07/2017
DECLARATION of Ryan Lu re: [12] First MOTION for Extension of Time to File Answer re: [1] Complaint Unopposed by Defendant Commissioner of Social Security Administration.
14
02/08/2017
ORDER granting [12] Motion for Extension of Time to Answer. Commissioner of Social Security Administration answer due 3/9/2017. Signed by Judge Douglas L Rayes on 2/8/2017.
15
03/09/2017
ANSWER to [1] Complaint by Commissioner of Social Security Administration.
16
03/09/2017
ANSWER to [1] Complaint by Commissioner of Social Security Administration.
17
03/09/2017
NOTICE of Filing Certified Copy of Administrative Transcript filed by Commissioner of Social Security Administration.
1
001 Certification Page
2
002 Court Transcript Index
3
003 Documents Related to Administrative Process Including Transcript of Oral He
4
004 Payment Documents and Decisions
5
005 Jurisdictional Documents and Notices
6
006 Non Disability Related Development
7
007 Disability Related Development
8
008 Medical Records Part 1
9
009 Medical Records Part 2
9 Attachments
18
05/08/2017
OPENING BRIEF by Scott Robert Shaffer.
1
Certificate of Service
1 Attachment
19
06/07/2017
RESPONSE BRIEF by Commissioner of Social Security Administration.
20
06/22/2017
REPLY BRIEF by Scott Robert Shaffer.
21
03/30/2018
ORDER: The Commissioner's decision is AFFIRMED. The Clerk of the Court shall terminate this case. Signed by Judge Douglas L Rayes on 3/30/2018.
22
03/30/2018
CLERK'S JUDGMENT - Pursuant to the Court's Order filed March 30, 2018, the Decision of the Commissioner of Social Security is AFFIRMED and this action is hereby terminated.
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