Washington v. Social Security Administration
Court Docket Sheet

Eastern District of Arkansas

4:2017-cv-00555 (ared)

MOTION for Leave to Proceed in forma pauperis by Shakica Shaunte Washington.

Case 4:17-cv-00555-BSM-BD Document 1 Filed 08/31/17 Page 1 of 2 AO 240 (Rev. 07 IO) Application to Proceed in District Court Without Prepaying Fees or Costs (Short Fonn) UNITED STATES DISTRICT COURT for the Eastern District of Arkansas JAME Bv:,.,....u ". ~7f:PA.~nr7 SHAKICA SHAUNTE WASHINGTON) Plamtiffi Petitioner) ~) COMMISSIONER OF SOCIAL SECURITY) Defendant/R<.'spondent) APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES OR COSTS (Short Form) I am a plaintiff or petitioner in this case and declare that I am unable to pay the costs of these proceedings and that I am entitled to the relief requested. msui'm1:n4-~-1his application, I answer the following quest.-·-1. If incarcerated. I am being held;-:-If employed there, or have an acco appropriate institutional of·---... ··-· t e institution, I have atnrdted~is document. a statement certified by the s owing all receipts, expenditures, and balan~timiu_gJhe last six months for any. institutional accoun · my name. I am also submitting a similar statement from any othei'instit!!tion where I was incarcerated 'ng the last six months.-----2. If not incarcerated Ifl am employed, my employer's name and address are: NIA My gross pay or wages are: $ 0, and my take-home pay or wages are: $ 0 per (specify pay period) 0 3. Other Income. In the past 12 months, I have received income from the following sources (check all that apply): ~~ (a) Business, profession, or other self-employment 0 Yes (b) Rent payments, interest, or dividends 0 Yes (c) Pension, annuity, or life insurance payments 0 Yes)'(No (d) Disability, or worker's compensation payments ~Yes ONo (e) Gifts, or inheritances O Yes ~No (f) Any other sources)7.l: Yes 'o No Ifyou answered "Yes" to any question above, describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future. o) SODS C) \ ~(l\)\ \ \'T~ ~\--:~fo X'f\O. f) 5c\)O.l0 tecf Pl OYY\ \'l U '.:,\'.)Cl.Gel bu.,-t \"'If. Qo-\l s ~ \o86--i-cwmc>. rny 1-e,nt. Case 4:17-cv-00555-BSM-BD Document 1 Filed 08/31/17 Page 2 of 2 AO 240 (Rev 07 I 0) Application to Proceed in District Court Without Prepaying Fees or Costs (Short Fonn) 4. Amount of money that I have in cash or in a checking or savings account: $ _ 0/Bi.Jb}~ 5. Any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or thing of value that I own, including any item of value held in someone else's name (describe the property and it.i approximate value): (AOO~ B~il~ (-Cnny lb 300 6. Any housing, transportation, utilities, or loan payments, or other regular monthly expenses (describe and provide the amo1111t of the monthly expense): rooo ~gw Lt\ l $ 45 bO.S $BO wate1 ~ Loo)'f\.)\)f\W\ lt ~ \ 1 ~-t l lllYl l I 1as \) r-e J (, r \ YJr f OY\ ~ $ f? cretJ <S ~ s ten+ i1so 7. Names (or, if under 18, initials only) of all persons who are dependent on me for support, my relationship with each person, and how much I contribute to their support: T. J. W S Of\-\4 \ff{)f\ S o\O--\ oo ~J. 8. Any debts or financial obligations (describe the amounts owed and to whom they are payable!: l'-..\ J R * f\J\'J, rnon\.i\'J x?rov,. a--r\~5.~:j(\~ \\~\'O ~ d\~CA.o\ \ \\-~ C\Y\ct tne \Y\L()(Y\-t: rn-e w. w c1/Jf nt. \ P°'-"1 OJ\ V\J'.h0\~ l ti\n vvntn \ l Vtn, \ t{;tnnor at1orot ~400 f I \ \ Y\ b fCf. Declaration: I declare under penalty of perjury that the above information is true and understand that a false statement may result in a dismissal of my claims. Date: 8)23)7011 bu.~~ SHAKICA SHAUNTE WASHINGTON Printed name

COMPLAINT against Social Security Administration, filed by Shakica Shaunte Washington.

Case 4:17-cv-00555-BSM-BD Document 2 Filed 08/31/17 Page 1 of 8 UNITED STATES DISTRICT COURT FiLED U.S. DiSTR1Cf COtfflT!:ASTERN C.:ST!\1CT #<K.'i~<SAS EASTERN DISTRICT OF ARKANSAS (WESTERN DIVISION)) SHAKICA SHAUNTE WASHINGTON,) Soc.Sec. #XXX-XX-1733,)) Plaintiff,) v.))) NANCY A. BERRYHILL, ACTING) COMMISSIONER OF SOCIAL SECURITY,)) Tl:is case assigned to Distri Defendant.) a.':C: to r,1agistrate Judge ''" "< I C' fl ~ < Plaintiff, Shakica Shaunte Washington, by her attorney, Howard D. Olinsky, alleges as follows: 1. The jurisdiction of this Court is invoked pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to review a decision of the Commissioner of Social Security denying Plaintiff's application for Social Security Disability Insurance benefits and Supplemental Security Income benefits for lack of disability. 2. This action is an appeal from a final administrative decision denying Plaintiff's claim. 3. This action is commenced within the appropriate time period set forth in the attached Appeals Council Notice dated July 5, 2017. (Exhibit A). 4. Plaintiff, whose social security number is XXX-XX-1733, resides in Little Rock, Pulaski County, Arkansas, which is within this judicial district and division. 5. The Defendant, Nancy A. Berryhill, is the acting Commissioner of Social Security of the United States of America. Case 4:17-cv-00555-BSM-BD Document 2 Filed 08/31/17 Page 2 of 8 6. The agency committed error of law by denying Appeals Council review of the decision by the Administrative Law Judge, or otherwise to deny relief that was within the authority of the Appeals Council. 7. Plaintiff is disabled. 8. The conclusions and findings of fact of the Defendant are not supported by substantial evidence and are contrary to law and regulation. WHEREFORE, Plaintiff prays that this Court: 1. Find that the Plaintiff is entitled to Social Security Disability Insurance benefits and Supplemental Security Income benefits under the provisions of the Social Security Act; or 2. Remand the case for a further hearing; 3. Award attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, on the grounds that the Commissioner's action in this case was not substantially justified; and 4. Order such other and further relief as the Court deems just and proper. Respectfully submitted, BY:, Howard D. Olinsky, Es NYS Bar #: 2044865 Attorney for Plaintiff OLINSKY LAW GROUP One Park Place 300 S. State Street, Ste. 420 Syracuse, New York 13202 t. 315.701.5780 f: 315.701.5781 e: holinsky@windisability.com DATED: August 30, 2017 Case 4:17-cv-00555-BSM-BD Document 2 Filed 08/31/17 Page 4 of 8 M '.\. SEcl.! SOCIAL SECURITY ADMINISTRATION \ UI$J-Refer 733 1\.-isn.1" to: 1LC Office of Disability Adjudication and Review • 5107 Leesburg Pike Falls Church, VA 22041-3255 ~--is II!! liii Telephone: (877) 670-2722!!!! Date: July 5, 2017 0!!II;;...x-!!!! =!"' n ~-.... NOTICE OF APPEALS COUNCII.1 ACTION!!!! liii:./;ccE'lvc-D '." 0!!!! iii i/IJlDtJ ~!!! t iii i;: = iii ~ iii This is about your request for review of the Administrative Law Judge's decision dated =-= Ii iii July 6, 2016. You submitted reasons that you disagree with the decision. We considered the reasons and exhibited them on the enclosed Order of the Appeals Council. We found that the = reasons do not provide a basis for changing the Administrative Law Judge's decision. •-= iii We Have Denied Your Request for Review i ii!!! We found no reason under our mies to review the Ad1ninh.1rative Law Judge's decision. 'lberefore, we have denied your requesl for rl!vi~w. i' This means that the Admini~1rative Law Judge's decision is the final decision of the Conunissioner of Socia) Security in your case. Rules We Applied I... We applied the laws, regulations and rulings in effect as of the oote we took this action. ~ i i:? Under our rules, we will review your case for any of the following reasons: I I • The Administrative Law Judge appears to have abused bis or her discretion. ~ • TI1ere is an error of law. ~ ~ • The decision is not supported by substantial evidence. II..~ • There is a broad policy or procedural issue that may affect the public interest----!l!iiii!ii!I!!! l iiiiillm Suspect Sodal Security Fraud? Please ''.isit http://oig.ssa.gov/r or call the Inspector General's Fraud llotline = at t-800-269-0271(TTY1-866-501-2101). See Next Page Case 4:17-cv-00555-BSM-BD Document 2 Filed 08/31/17 Page 5 of 8 Shakica Sbaunk Washington-1733) Page2 of4 • We receive additional evidence that you show is new, material, and relates to the period on or before the date of the hearing decision. You must also show there is a reawnable probability that the additional evidence would change the outcome of the decision. You must show good cause for why you missed infonning us about or submitting it earlier. Additional Evidence You submitted a summary from lTAMS dated July 12, 2016 (7 pages). We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We did not consider nnd exhibit this evidence. If You Disagree With Our Action If you disagree witlI our action, you may ask for court review of the Administrative Law Judge's dl!Cision by filing a civil action. If you do not ask for court review, the Administrative Law Judge's decision will be a fina) decision that can be changed only under special rules. Ilow to File a l,lvil Action You may file a dvil action (ask for court review) by filing a complaint in the United Stat~s District Court for the judicial diidrict in which you Ii ve. The complaint should name the Commissioner of Social Security as the defendant and should include the Social Security number(s) sho\\'11 at the top of this letter. You or yow· repr~sentative must deliv~r copies or your complaint and of the summons issued by the court to the U.S. Attorney for the judicial district where you file your complaint, as provided in rule 4(i) of the Federal Rules of Civil Procedure. You or your representative must also send copies of the complaint and summons, by certified or regii.1ered mail, to the Social Security Administration's Office of the Genera] Cow1sel that is responsible for the processing and handling oflitigation in the particular judicial district in which the complaint is filed. TI1c: names, addresses, and jurisdictional responsibilities of these offices are published in the Federal Register {70 FR 73320, December 9, 2005), and are available on-1inc at the Social Security Administration's Internet site, http://policy.ssa.gov/poms.nsfilinks/0203 l 06020. You or your representative must also send copies of the complaint and summons, by certified or registered mail, to th~ Attorney General of the United States, Washington, DC 20530. Time To File a Civil Ad ion • You have 60 days to file a civil action (ask for court review). See Next Page Case 4:17-cv-00555-BSM-BD Document 2 Filed 08/31/17 Page 6 of 8 I Shakica Shaunk Washington-1733) Page 3of4.,,~!!I • The 60 days start the day after you receive this letter. We assume you received tltis letter iiiii 5 days after the date on it unless you show us that you did not receive it within the 5-day iii period. II == I.--Iii 0 • If you cannot file for court review within 60 days, you may ask the Appeals Council to!!!! extend your time to fi1e. You must have a good reason for waiting more than 60 days to $ I!!! ~ ~ ask for court review. You mu!l1 make the request in writing and give your reason(s) in n!!!! iii the requeb1. ~ 0 ~ iiii You must mail your request for more time to the Appeals Council at the address shown at the ~!!!! iii top of this notice. Please put the Social Security number(s) also shown at the top of this notice on your request. We will send you a letter telling you whether your request for more j iii!!!! time has been granted....;: PC iii!!!-I iii About The Law!!--iii iiii The right to court review for claims under Title II (Social Security) is provided for in Section a::!!!! 205(g) of the Social Security Act. This section is also Section 405(g) of Title 42 of the United II States Code. = iii!!! The right to court review for claims under Title XVI (Supplemental Security Income) is provided for in Se~tion 163 l(c)(3) of the Social Security Act. This s~ctiqnjs al~o-~-~tion 1383(c) of Title 42 ofthe United States Code. The rules on filing civil actions are Rules 4(c) and (i) in the Federal Rules of Civil Procedure. If You llave Any Questions I.... If you have any que!:l1ions, you may call, write, or visit any Social Security office. If you do §.. caJI or visit an oftice, please have this notice with you. TI1e telephone number of the local ~ office that serves your area is (866)593-0933. Its address is: Iii §:II So<.-iaJ Security I ~ 700 W Capitol Street Rm 120 I Federal Bldg Little Rock, AR 72201-9901 i:: ~ •.. 1s1R.L~ R. L. Cosme Appeals Officer---~-===== See Next Page Case 4:17-cv-00555-BSM-BD Document 2 Filed 08/31/17 Page 7 of 8 Shakica Shaunte Washingto~l733) Page4of4 Enclosure: Order of Appeals Council cc: Bradford D. Myler P.O. Box 127 Lehi, UT 84043-0127 Case 4:17-cv-00555-BSM-BD Document 2 Filed 08/31/17 Page 8 of 8;; i Ii-iii!!!! e Social Security Administration OFFICE OF DISABILITY ADJUDICATION AND REVIEW I z 0......-:--!!!!!!!!! ~ ORDER OF APPEALS COUNCIL!2 """'!!! ~--=:.i 0 = IN THE CASE OF CLAIM FOR & ia!!!!!!!!!;;;; ~ iii Period of Disability ~!!! Disability Insurance Benefits "' ~-iii Shakica Shaunte Washington Supplemental Security Income-I ililii (Claimant) ~ iii ~~~~~~~-= (Wage Earner) (Socia I Security Number)---=!!! I The Appeals Council has received additional evidence which it is making part of the record. Ii That evidence consists ofthe following exhibits: Exhibit27B Request for Review from claimant received July 30,2016 I.. Exhibit 288 Request for Review from representative received August l, 2016 with fee agreement iI:? Exhibit 23E Representative Brief dated August 30, 2016 I I ~ ij Date: July 5, 2017!...-• •..-.---..-iiiiiiiiiiii

Civil Cover Sheet)(kdr

Case 4:17-cv-00555-BSM-BD Document 2-1 Filed 08/31/17 Page 1 of 1 JS 44 (Rev. 12/12) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court This form, approved by the Judicial Conference of the United States in September 1974, is r uired for the use of the Clerk of Court for the purpose of initiating the civil docket sheet (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) ~ c J--I. (a) PLAINTIFFS DEFENDANTS Shakica Shaunte Washington Commissioner of SSA, Office of Regional Chief Counsel, Region VI, 1301 Young Street, Ste. A702, Dallas, TX 75202-5433 (b) County of Residence of First Listed Plaintiff ~P=u~la=s=k=i________ County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEl\!NAT!ON CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED (C) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known) Howard D. Olinsky, Esq., Olinsky Law Group, 300 S. State St., Ste. 420, United States Attorney's Office, Eastern District of Arkansas, P.O. Box Syracuse, NY 13202, 315-701-5780 1229, Little Rock, AR 72203 II. BASIS OF JURISDICTION (Place an "X"inOneBoxOnlyJ III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) 0 1 U.S. Government 0 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party) Citizen of This State 0 I 0 I Incorporated or Principal Place 0 4 0 4 of Business In This State ll'l 2 U.S. Goverrunent 0 4 Diversity Citizen of Another State 0 2 0 2 Incorporated and Principal Place 0 5 0 5 Defendant (Indicate Citi=enship of Parties in Item Ill) of Business In Another State Citizen or Subject of a 0 3 0 3 Foreign Nation 0 6 0 6 Foreii:m Count IV. NATURE OF SUIT (Place an "X" in One Box Only) I CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES I 0 110 Insurance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal 28 USC 158 0 375 False Claims Act 0 120 Marine 0 310 Airplane 0 365 Personal Injury-of Property 21 USC 881 0 423 Withdrawal 0 400 State Reapportionment 0 130 Miller Act 0 315 Airplane Product Product Liability 0 690 Other 28 USC 157 0 410 Antitrust 0 140 Negotiable Instmment Liability 0 367 Health Care/0 430 Banks and Banking 0 150 Recovery of Overpayment 0 320 Assault, Libel & Pharmaceutical PROPERTY RI<;HTS 0 450 Commerce & Enforcement of Judgment Slander Personal Injury 0 820 Copyrights 0 460 Deportation 0 151 Medicare Act 0 330 Federal Employers' Product Liability 0 830 Patent 0 470 Racketeer Influenced and 0 152 Recovery of Defaulted Liability 0 368 Asbestos Personal 0 840 Trademark Cotrupt Organizations Student Loans 0 340 Marine Injury Product 0 480 Consumer Credit (Excludes Veterans) 0 345 Marine Product Liability LABOR "'" IALSE RITY 0 490 Cable/Sat TV 0 153 Recovery of Overpayment Liability PERSONAL PROPERTY 0 710 Fair Labor Standards 0 861 H!A(l395ff) 0 850 Securities/Commodities/of Veteran's Benefits 0 350 Motor Vehicle 0 370 Other Fraud Act 0 862 Black Lung (923) Exchange 0 160 Stockholders' Suits 0 355 Motor Vehicle 0 37 l Truth in Lending 0 720 Labor/Management ~ 863 DIWC/DIWW (405(g)) 0 890 Other Statutory Actions 0 190 Other Contract Product Liability 0 380 Other Personal Relations 0 864 SSID Title XVI 0 891 Agricultural Acts 0 195 Contract Product Liability 0 360 Other Personal Property Damage 0 740 Railway Labor Act 0 865 RSI (405(g)) 0 893 Environmental Matters 0 196 Franchise Injury 0 385 Property Damage 0 751 Family and Medical 0 895 Freedom of lnfonnation 0 362 Personal Injury-Product Liability LeaYe Act Act Medical Malpractice 0 790 Other Labor Litigation 0 896 Atbitration I REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 0 791 Employee Retirement FEDERAL TAX SUITS 0 899 Administrative Procedure 0 210 Land Condenmation 0 440 Other Civil Rights Habeas Corpus: Income Security Act 0 870 Taxes (U.S. Plaintiff Act/Review or Appeal of 0 220 Foreclosure 0 441 Voting 0 463 Alien Detainee or Defendant) Agency Decision 0 230 Rent Lease & Ejectment 0 442 Employment 0 510 Motions to Vacate 0 871 IRS-Third Party 0 950 Constitutionality of 0 240 Torts to Land 0 443 Housing/Sentence 26 USC 7609 State Statutes 0 245 Tort Product Liability Accommodations 0 530 General 0 2 90 All Other Real Property 0 445 Amer. w/Disabilities-0 535 Death Penalty IMMIGRATION Employment Other: 0 462 Naturalization Application 0 446 Amer. w/Disabilities-0 5-lO I\ landamus & Other 0 465 Other Inunigration Other 0 550 Civil Rights Actions 0 448 Education 0 555 Prison Condition 0 560 Civil Detainee-Conditions of Confinement V. ORIGIN (Place an "X" in One Box Only))g(I Original 0 2 Removed from 0 3 Remanded from 0 4 Reinstated or 0 5 Transferred from 0 6 Multid1strict Proceeding State Court Appellate Court Reopened Another District Litigation (specifa) Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): O 142 USC 405(g) and 42 USC 1383(c)(3) VI. CAUSE OF ACTI N Brief descnption of cause Denial of Social Security Disability and Supplemental Security Income benefits. VII. REQUESTED IN 0 CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint COMPLAINT: UNDER RULE 23, FR Cv P JURY DEMAND: 0 Yes)!!(No VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE DOCKET NUMBER ~~~~~---~~~~~~~~ DATE SIGNAflRE OF ATT, 08/30/2017 FOR OFFICE USE ONLY RECEIPT# AMOUNT' APPL YING IFP JUDGE MAG.JUDGE

ORDER granting {{1}} Plaintiff Shakica Shaunte Washington's motion for leave to proceed in forma pauperis and directing the Clerk of Court to prepare a summons and forward it to Ms. Washington's counsel for service of the complaint upon the Defendant. Signed by Magistrate Judge Beth Deere on 8/31/2017.

Case 4:17-cv-00555-BSM-BD Document 3 Filed 08/31/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION SHAKICA SHAUNTE WASHINGTON PLAINTIFF V. CASE NO. 4:17-CV-00555-BSM-BD NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT ORDER Plaintiff Shakica Shaunte Washington’s motion for leave to proceed in forma pauperis (docket entry #1) is GRANTED. The Clerk of Court is directed to prepare a summons and forward it to Ms. Washington’s counsel for service of the complaint upon the Defendant. DATED this 31st day of August, 2017. ___________________________________ UNITED STATES MAGISTRATE JUDGE

CONSENT to Jurisdiction by U.S. Magistrate Judge. Case reassigned to Magistrate Judge Beth Deere. Signed by Chief Judge Brian S. Miller on 9/25/2017.

Case 4: 17-cv-00555-BD Document 4 Filed 09/25/17 Page 1 of 2 (Post 09 2015) Notice. Consent and Reference of a Civil Action to a Magistrate Judge FILED UNITED STATES DISTRICT COURT ISTERN District COURT ARKANSAS EASTERN DISTRICT OF ARKANSAS Western Division SEP 25 2017 JAMES W. McCORMACK, CLERK WASHINGTON Plaintiff By:) Case No. 4: 17cv555-BSM-BD DEP CLERK SSA Defendant NOTICE, CONSENT AND REFERENCE OF A CIVIL ACTION TO MAGISTRATE JUDGE BETH DEERE (MANDATORY RESPONSE REQUIRED) Notice of a Magistrate Judge's availability. A United States Magistrate Judge of this court is available to conduct all proceedings in this civil action and to order the entry of a final judgment. The judgment may then be appealed directly to the United States Court of Appeals like any other judgment of this court. A Magistrate Judge may exercise this authority only if all parties voluntarily consent. You may consent to have your case referred to a Magistrate Judge, or you may withhold your consent without adverse substantive consequences. The name of any party withholding consent will not be revealed to any judge who may otherwise be involved with your case. You must return this form to the Clerk of Court's office within 21 days from date of this notice regardless of whether or not you are consenting to the exercise of jurisdiction by a United States Magistrate Judge. Election to have case remain with a United States District Judge [Consent to a Magistrate Judge s authority. The following parties consent to have a United States Magistrate Judge conduct all proceedings in this case including trial, the entry of final judgment and all post trial proceedings. Signatures. Parties' printed names Shakica Shaunte Washington, Plaintiff., Dates 9/8/2017 Reference order IT IS ORDERED: This case is referred to a United States Magistrate Judge to conduct all proceedings and order the entry of a final judgment in accordance with 28 U. S. C. S 636 (c) and Fed. R. Civ. P. 73. Date: 9-2k-U District Judge's signature Brio District cube Printed name and Title Case 4: 17-cv-00555-BD Document 4 Filed 09/25/17 Page 2 of 2 U. S. Department of Justice United States Attorney Eastern District of Arkansas 425 West Capitol Avenue, Suite 500 501) 340-2600 Post Office Box 1229 Little Rock, Arkansas 72203-229 March 14, 2017 Mr James W. McCormack U. S. District Clerk U. S. District Courthouse 600 West Capitol Avenue Little Rock, AR 72201 RE: Consent to a United States Magistrate Judge Dear Mr McCormack: The United States Attorney's Office, in accordance with the provisions of 28 U. S. C. $ 636 (c) and Fed. R. Civ. P. 73, voluntarily consents to have a United States Magistrate Judge conduct any and all further proceedings for all social security disability cases filed in the Eastern District of Arkansas. Our consent applies to all orders disposing of these matters, the entry of final judgements, and post-judgement proceedings. Once all other parties have consented, the clerk's office has our blanket authorization to process the consent form without the signature of a representative attorney for the United States. For record keeping purposes, we ask that a notification be placed on each consent form referencing this letter. Stacey E. McCord for the U. S. Attorney's Office is available to answer any questions your staff may have concerning our blanket authorization in social security disability cases. Sincerely, (JAARC Patrick C. Harris Acting United States Attorney

SUMMONS Returned Executed by Shakica Shaunte Washington. Social Security Administration served on 9/15/2017.

Case 4:17-cv-00555-BD Document 5 Filed 10/02/17 Page 2 of 6 Date Produced: 09/25/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0038 5831 28. Our records indicate that this item was delivered on 09/19/2017 at 06:02 a.m. in LITTLE ROCK, AR 72202. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local post office or Postal Service representative. Sincerely, United States Postal Service Information in this section provided by Walz Group, LLC. Recipient Information: Civil Process Clerk United States Attorney's Office Eastern District of Arkansas P.O. Box 1229 Little Rock,AR 72203 Reference Number: Washington, S USAO Case 4:17-cv-00555-BD Document 5 Filed 10/02/17 Page 4 of 6 Date Produced: 09/18/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0038 5831 66. Our records indicate that this item was delivered on 09/15/2017 at 12:59 p.m. in DALLAS, TX 75202. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local post office or Postal Service representative. Sincerely, United States Postal Service Information in this section provided by Walz Group, LLC. Recipient Information: Office of Regional Chief Counsel Region VI, SSA 1301 Young Street, Suite A702 Dallas,TX 75202 Reference Number: Washington, S OGC Case 4:17-cv-00555-BD Document 5 Filed 10/02/17 Page 6 of 6 Date Produced: 09/25/2017 WALZ GROUP: The following is the delivery information for Certified Mail™/RRE item number 9314 8699 0430 0038 5832 34. Our records indicate that this item was delivered on 09/20/2017 at 05:23 a.m. in WASHINGTON, DC 20530. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local post office or Postal Service representative. Sincerely, United States Postal Service Information in this section provided by Walz Group, LLC. Recipient Information: U.S. Attorney General Constitution Avenue & 10th St., N.W. Washington,DC 20530 Reference Number: Washington, S OGC

ANSWER to {{2}} Complaint by Social Security Administration.

Case 4:17-cv-00555-BD Document 6 Filed 11/20/17 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION SHAKICA SHAUNTE WASHINGTON, § Plaintiff, § § v. § Civil Action No. 4:17-CV-00555-BSM-BD § NANCY A. BERRYHILL, § ACTING COMMISSIONER OF § SOCIAL SECURITY, § Defendant. § § DEFENDANT’S ANSWER Defendant, Nancy A. Berryhill, Acting Commissioner (Commissioner) of Social Security, through J. Cody Hiland, United States Attorney for the Eastern District of Arkansas, and her designated attorney-in-charge, Angeline S. Reese, Special Assistant United States Attorney, files this Answer to Plaintiff’s Complaint. The Court has exclusive jurisdiction in this matter under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Defendant pleads as follows: 1. Defendant admits the allegation contained in paragraph 1 of Plaintiff’s Complaint. 2. Defendant admits the allegation contained in paragraph 2 of Plaintiff’s Complaint. 3. Defendant admits the allegation contained in paragraph 3 of Plaintiff’s Complaint. 4. Defendant admits the allegation contained in paragraph 4 of Plaintiff’s Complaint. 5. Defendant admits the allegation contained in paragraph 5 of Plaintiff’s Complaint. 6. Defendant denies the allegations contained in paragraph 6 of Plaintiff’s Complaint, and states that the Appeals Council’s Request for Review Denial Notice dated July 7, 2017, found no reason to review the Administrative Law Judge’s unfavorable decision of July 6, 2016. Case 4:17-cv-00555-BD Document 6 Filed 11/20/17 Page 2 of 3 7. Paragraph 7 of Plaintiff’s Complaint states a legal conclusion to which no responsive pleading is required. To the extent that the Court deems a responsive pleading is necessary, Defendant denies the same. 8. Paragraph 8 of Plaintiff’s Complaint states a legal conclusion to which no responsive pleading is required. To the extent that the Court deems a responsive pleading is necessary, Defendant denies the same. With respect to the last paragraphs of Plaintiff’s Complaint, Defendant states that this constitutes a Prayer for Relief to which no response is deemed necessary. However, if the Court requires a response, Defendant denies Plaintiff is entitled to judgment or relief sought. In response to Plaintiff’s Prayer request that this case be reversed in Plaintiff’s favor, or remanded for a further hearing, Defendant states that Plaintiff has not shown that reversal or remand is warranted under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). With respect to Plaintiff’s Prayer request for attorney fees under the Equal Access to Justice Act, should Plaintiff prevail and file an application for fees against the United States in accordance with the requirements of 28 U.S.C. § 2412, enacted as part of the Equal Access to Justice Act, the Commissioner reserves the right to oppose any award under this statute. Defendant denies all other allegations of Plaintiff’s Complaint not specifically admitted. In accordance with section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), Defendant files as part of the answer a certified copy of the transcript of the record including the evidence upon which the findings and decisions complained of are based. Case 4:17-cv-00555-BD Document 6 Filed 11/20/17 Page 3 of 3 Respectfully submitted, CODY HILAND United States Attorney Eastern District of Arkansas STACEY McCORD Assistant United States Attorney Eastern District of Arkansas TRACI B. DAVIS Acting Regional Chief Counsel Social Security Administration/s/Angeline S. Reese ANGELINE S. REESE Special Assistant United States Attorney Attorney-in-Charge Texas State Bar 00785819 Office of the General Counsel 1301 Young Street, Suite A702 Dallas, Texas 75202 (214) 767-7323 (214) 767-4117 Fax Angie.Reese@ssa.gov CERTIFICATE OF SERVICE I hereby certify that on November 20, 2017, I electronically transmitted the attached document to the Clerk of the Court using the ECF’s system for filing and transmittal of the Answer to Plaintiff’s Attorneys, Howard D. Olinsky, of the Olinsky Law Group, an ECF registrant./s/Angeline S. Reese ANGELINE S. REESE Special Assistant United States Attorney

NOTICE of Appearance by Angeline S. Reese on behalf of Social Security Administration

Case 4:17-cv-00555-BD Document 7 Filed 11/20/17 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION SHAKICA SHAUNTE WASHINGTON, § Plaintiff, § § v. § Civil Action No. 4:17-CV-00555-BSM-BD § NANCY A. BERRYHILL, § ACTING COMMISSIONER OF § SOCIAL SECURITY, § Defendant. § § NOTICE OF ENTRY OF APPEARANCE Defendant, Nancy A. Berryhill, Acting Commissioner, Social Security Administration, hereby advises the Court that the undersigned Special Assistant United States Attorney enters her appearance as counsel of record in the above-captioned and numbered cause. Respectfully submitted, CODY HILAND United States Attorney Eastern District of Arkansas STACEY McCORD Assistant United States Attorney Eastern District of Arkansas TRACI B. DAVIS Acting Regional Chief Counsel Social Security Administration/s/Angeline S. Reese ANGELINE S. REESE Special Assistant United States Attorney Attorney-in-Charge Texas State Bar 00785819 Office of the General Counsel 1301 Young Street, Suite A702 Dallas, Texas 75202 (214) 767-7323 (214) 767-4117 Fax angie.reese@ssa.gov Case 4:17-cv-00555-BD Document 7 Filed 11/20/17 Page 2 of 2 CERTIFICATE OF SERVICE I hereby certify that on November 20, 2017, I electronically transmitted the foregoing document to the Clerk of Court using the ECF System for filing and transmittal of Notice of Electronic Filing the Answer to Plaintiff’s Attorney, Howard D. Olinsky, of the Olinsky Law Group, an ECF registrant./s/Angeline S. Reese ANGELINE S. REESE Special Assistant United States Attorney 2

NOTICE by Social Security Administration of the conventional filing of the administrative transcript

Case 4:17-cv-00555-BD Document 8 Filed 11/20/17 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION SHAKICA SHAUNTE WASHINGTON, § Plaintiff, § § v. § Civil Action No. 4:17-CV-00555-BSM-BD § NANCY A. BERRYHILL, § ACTING COMMISSIONER OF § SOCIAL SECURITY, § Defendant. § DEFENDANT’S NOTICE OF CONVENTIONAL FILING OF THE ADMINISTRATIVE TRANSCRIPT Defendant, Nancy A. Berryhill, Acting Commissioner of Social Security, through J. Cody Hiland, United States Attorney for the Eastern District of Arkansas, hereby notices the court that the United States Attorney’s Office will file the certified administrative record of the administrative proceeding in this case in accordance with section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), and serve a copy of the transcript on Plaintiff’s attorneys. Respectfully submitted, CODY HILAND United States Attorney Eastern District of Arkansas STACEY McCORD Assistant United States Attorney Eastern District of Arkansas TRACI B. DAVIS Acting Regional Chief Counsel Social Security Administration Case 4:17-cv-00555-BD Document 8 Filed 11/20/17 Page 2 of 2/s/Angeline S. Reese ANGELINE S. REESE Special Assistant United States Attorney Attorney-in-Charge Texas State Bar 00785819 Office of the General Counsel 1301 Young Street, Suite A702 Dallas, Texas 75202 (214) 767-7323 (214) 767-4117 Fax Angie.Reese@ssa.gov CERTIFICATE OF SERVICE I hereby certify that on November 20, 2017, I electronically transmitted the attached document to the Clerk of the Court using the ECF’s system for filing the transmittal of a Notice of Electronic Filing to Plaintiff’s attorneys, Howard D. Olinsky, of the Olinsky Law Group, an ECF registrant./s/Angeline S. Reese ANGELINE S. REESE Special Assistant United States Attorney

SCHEDULING ORDER: Plaintiff must file a Brief on or before 1/3/2018. Defendant must file a Brief within 42 days of the date Plaintiff's Brief is served; and other briefing requirements. Signed by Magistrate Judge Beth Deere on 11/22/2017.

Case 4:17-cv-00555-BD Document 10 Filed 11/22/17 Page 1 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION SHAKICA SHAUNTE WASHINGTON PLAINTIFF V. CASE NO. 4:17-CV-555-BD NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION DEFENDANT SCHEDULING ORDER Plaintiff seeks review of the determination of the Commissioner of the Social Security Administration. The Commissioner has filed an Answer to the Complaint and transcript of the administrative proceedings. Plaintiff must file a brief in support of the allegations of the Complaint on or before January 3, 2018. The brief must identify specific points for appeal. Plaintiff=s failure to file a timely brief may result in dismissal for failure to prosecute. Defendant must file a brief within 42 days of the date Plaintiff=s brief is served. Defendant=s brief must respond to the issues raised in Plaintiff=s brief and may include additional relevant issues. Each party must serve a copy of its brief on the opposing party the day of filing and file a certificate of service with the brief. Briefs should provide a short and concise history of the administrative proceedings and statement of facts. Plaintiff=s brief must identify specific points for appeal, together with relevant law and argument, and Defendant=s brief must respond to each argument raised by the Plaintiff, preferably in the same order. Case 4:17-cv-00555-BD Document 10 Filed 11/22/17 Page 2 of 2 All briefs must include citations of legal authority to support the arguments made. These citations should include specific page references within the case where the cited point is discussed. Briefs must also identify facts to support the legal arguments made and include citations to referenced portions of the transcript supporting the party=s arguments. Any argument in a brief that is not supported by relevant law and argument (with citation to relevant portions of the transcript), will be considered to have been waived by the briefing party. DATED this 22nd day of November, 2017. ___________________________________ UNITED STATES MAGISTRATE JUDGE

Unopposed MOTION for Extension of Time to File Plaintiff's Opening Brief by Shakica Shaunte Washington

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION SHAKICA SHAUNTE WASHINGTON, PLAINTIFF, CIVIL ACTION -V- NO. 4:17-CV-00555-BD NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, DEFENDANT. ----------------------------------------------------------- MOTION FOR EXTENSION OF TIME COMES NOW, Plaintiff, Shakica Shaunte Washington, by and through the undersigned counsel, and respectfully files this motion pursuant to Fed. R. Civ. P. 6 and Local Rules 6.2 and 7.2, and respectfully requests an enlargement of time (19 days) up to and including January 22, 2018, to file Plaintiff's brief in support of the Complaint. The current deadline for Plaintiff's brief is January 3, 2018. This request is made due to the size of the transcript (2,414 pages), coupled with multiple simultaneous filing deadlines due to the holidays which prevent proper preparation of the brief. Plaintiff's counsel contacted defense counsel, who does not object to this motion. This is counsel's first request and we do not expect further requests of this kind. . Date: December 28, 2017 Respectfully submitted, /s/ Howard D. Olinsky Howard D. Olinsky, Esq. Attorney for Plaintiff Olinsky Law Group One Park Place 300 South State Street, Suite 420 Syracuse, New York 13202 Tel 315 701 5780 fax 701 5781 holinsky@windisability.com 1 CERTIFICATE OF SERVICE I hereby certify that the foregoing was filed electronically and served by mail upon anyone unable to accept electronic filing. Notice of this filing will be sent via email to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's CM/ECF System. This 28th day of December, 2017. /s/ Howard D. Olinsky Howard D. Olinsky, Esq. 2

PLAINTIFF'S BRIEF filed by Shakica Shaunte Washington. Defendant Brief due by 3/5/2018

8 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION SHAKICA SHAUNTE WASHINGTON,)) Plaintiff)) vs.) Civil Action No. 4:17-cv-00555-BD) NANCY A. BERRYHILL) ACTING COMMISSIONER OF) SOCIAL SECURITY,)) Defendant.) PLAINTIFF'S APPEAL BRIEF I. STATEMENT OF ISSUES A. The ALJ failed to include any of Plaintiff's mental impairments in the hypothetical question to the vocational expert, leaving the RFC and Step 5 determinations unsupported by substantial evidence. B. The ALJ improperly rejected the opinion of Plaintiff's treating physician Dr. Betton, and relied on his own lay opinion in producing an RFC which was unsupported by substantial evidence. II. STATEMENT OF THE CASE Shakica Shaunte Washington ("Plaintiff"), filed applications for disability insurance benefits and Supplemental Security Income on October 14, 2013, alleging disability since October 7, 2013, due to high blood pressure, asthma, and obesity. Transcript ("T") 16, 280. Plaintiff's applications were denied initially on April 1, 2014, and on reconsideration on June 9, 2014. T 137, 140, 145. After a hearing (35-75), the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. T 16-26. 1 8 In his decision, the ALJ determined that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2018. T 18. The ALJ Also determined that Plain- tiff did not engage in substantial gainful activity since the alleged onset date. T 18. The ALJ found that Plaintiff had the severe impairments of obesity and degenerative disc disease. T 18. The ALJ concluded that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. T 21. The ALJ found Plaintiff had the residual functional capacity to perform sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a) except she cannot perform significant stooping, crouching, or bend- ing. T 21. The ALJ found that Plaintiff was unable to perform her past relevant work as a certi- fied nursing assistant, but found that she could perform other work in the national economy as a telemarketer, and appointment clerk. T 25-26. Thus, the ALJ found Plaintiff was not disabled. T 26. When the Appeals Council denied Plaintiff's request for review on July 5, 2017, the decision of the ALJ became the final agency decision of the Commissioner. T 1-4. Plaintiff was born in August 1978, making her 35 years old at the time of her alleged on- set date of disability. Plaintiff has a high school education and past work experience as certified nursing assistant. T 25, 281. This court has jurisdiction pursuant to 42 U.S.C. §§ 405(g), 1383(c). a. Relevant Medical Evidence of Record Plaintiff treated with Ralph Joseph, M.D., on December 5, 2012. T 395. Dr. Joseph noted left shoulder tenderness along the bicipital groove, and pain with resisted flexion of the arm. T 395. Dr. Joseph observed positive impingement signs and pain with raising the arm laterally or anteriorly. T 395. 2 8 Plaintiff was seen in the ED reporting chest pains on September 5, 2013. T 466. Plaintiff reported a 7 out of 10 tightness in her left chest, which was painful upon exertion. T 466. Plaintiff indicated that she could only walk half a block without having significant chest pain and shortness of breath, and must sit down and breathe deeply to resolve the pain. T 466. Harold B. Betton, M.D., treated Plaintiff on September 9, 2013. T 592. Plaintiff reported dizziness, fatigue, sleepiness during the day, and that her legs were swollen at all times. T 589. Plaintiff also indicated numbness in the fingers at times, and drooping eyes. T 589. Dr. Betton completed a residual functional capacity questionnaire on October 28, 2013. T 607. Dr. Betton diagnosed Plaintiff with hyperlipidemia, obesity, and asthma, noting symptoms such as dizziness and chest pain. T 507. Dr. Betton opined that Plaintiff's symptoms would seldom be severe enough to interfere with the attention and concentration required to perform simple work-related tasks, that she would need to recline or lie down during a hypothetical eight-hour workday in excess of the typical breaks, could walk for less than once city block without rest or significant pain, could stand or walk for 30 minutes at a time, sit for 3 hours total in an eight-hour workday, stand or walk for 1 hour total in an eight-hour workday, would need a job which permits shifting positions at will from sitting, standing, or walking, would need unscheduled 20 minute breaks every 2 to 3 hours, could occasionally lift up to 20 pounds, could never grasp, turn, or twist objects, perform fine manipulation, or reach bilaterally, was incapable of working an eight-hour day, 5 days per week on a sustained basis, and would be absent more than 4 times a month due to her impairments or treatments. T 507-508. Plaintiff appeared to the Epilepsy Center and treated with Courtney Willis, M.D., on April 29, 2014. T 608. Plaintiff reported seizures characterized as focal motor manifestations with loss of awareness, with independent facial twitching and confusion. T 608. Plaintiff reported 3 8 these confusion episodes occur approximately once per week, and last for several minutes at a time, with drooping occurring twice a week and lasting for 30 minutes at a time. T 608. Plaintiff reported to the ED and treated with Carolyn E. Mehaffey, M.D., on September 5, 2014. T 856. Plaintiff reported an acute onset headache, generalized weakness, weaker on the left, and a light headed sensation, with slurred speech. T 856. Dr. Mehaffey observed giveaway weakness in all extremities, with 4/5 strength throughout. T 857. The next day, Plaintiff was given an order for a walker. T 861. Dr. Betton completed a residual functional capacity questionnaire on September 12, 2014. T 1082. Dr. Betton diagnosed Plaintiff with COPD, hypoglycemia, and joint pain, noting symptoms of fatigue and pain. T 1082. Dr. Betton opined that Plaintiff's symptoms would often be severe enough to interfere with the attention and concentration required to perform simple work related tasks, that she could walk half a block without rest or significant pain, could stand or walk for 30 minutes at one time, would need a job which permits shifting positions at will from sitting, standing, or walking, would need a 10 to 15-minute lunch break every one to two hours, could occasionally lift up to 10 pounds, could grasp, turn, and twist objects bilaterally for 20 percent of an eight-hour workday, could perform fine manipulation bilaterally for 20 percent of an eight-hour day, could perform reaching bilaterally for 10 percent of an eight-hour workday, and would be physically incapable of working an eight-hour day, five days a week on a sustained basis. T 1083. Dr. Betton also opined that Plaintiff has had these limitations and restrictions since August 7, 2013. T 1084. Laura Holt, LCSW, completed a mental capacity assessment on September 16, 2014. T 746. Therapist Holt opined that Plaintiff had moderate limitations regarding her abilities to interact appropriately with the general public, ask simple questions or request assistance, accept 4 8 instructions and respond appropriately to criticism from supervisors, and maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. T 746-48. Therapist Holt opined that Plaintiff would have marked limitations regarding her abilities to work in coordination with or in proximity to others without being distracted by them, carry out very short and simple instructions, and get along with coworkers or peers without distracting them or exhibiting behavioral extremes. T 746-47. Therapist Holt opined that Plaintiff had extreme limitations regarding her abilities to remember locations and work-like procedures, remember and understand detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, sustain an ordinary routine without special supervision, maintain simple work-related decisions, complete a normal workday/week without interruptions from psychologically based symptoms, perform at a consistent pace with a standard number and length of rest periods, respond appropriately to changes in the work setting, be aware of normal hazards and take appropriate precautions, travel in unfamiliar places or use public transportation, and set realistic goals or make plans independently of others. T 746-48. Therapist Holt further opined that Plaintiff would likely be absent from work more than four times in the average month. T 474. Plaintiff saw Therapist Holt again on September 23, 2014. T 983. Plaintiff indicated that she has no joy in her life, and was depressed enough to want her life to be over. T 983. Plaintiff underwent an initial assessment with Thanh Nguyen, M.D., on November 4, 2014. T 976. Plaintiff reported daily anxiousness, with sweating, fast heart pace, and difficulty breathing. T 969. Plaintiff reported daily feelings of depression with crying spells, social isolation, poor appetite, and problems falling and staying asleep. T 969. Dr. Nguyen noted that 5 8 Plaintiff appeared with an anxious mood, and diagnosed her with depressive disorder and anxiety disorder, NOS. T 971-72. Plaintiff reported to Therapist Holt on December 2, 2014. T 965. Plaintiff reported having mood swings, crying spells, and memory problems, as well as good and bad days. T 963- 65. Plaintiff underwent a left knee MRI on December 5, 2014. T 934. The MRI revealed medial extrusion of the bony segment of the menial meniscus, and mild medial compartment osseous spurring, as well as edema anterior to the distal patellar tendon. T 934. Additionally, it revealed degenerative changes in the medial compartment and mild narrow edema in the medial aspect of the medial femoral condyle and associated osseous spurring, and small joint effusion. T 934-35. Plaintiff treated with Tina Trahan Wells, M.D., on December 18, 2014. T 1020. Plaintiff reported confusion, decreased concentration, depressed mood, dizziness, dry mouth, insomnia, irritability, malaise, muscle tension, nausea, nervous/anxious behavior, palpitations, restlessness, and shortness of breath. T 1020. Plaintiff also reported awaking several times during the night, with 4 hours of non-restorative sleep per night. T 1020. At a visit the previous month, Plaintiff was noted to be obviously depressed, with a flat affect and delayed speech. T 1033. Plaintiff appeared to Dr. Wells again on January 20, 2015. T 1100. Plaintiff reported worsening left knee pain including symptoms of loss of motion, muscle weakness, numbness and tingling. T 1101. Upon examination, Dr. Wells observed decreased range of motion, swelling and bony tenderness in the left knee. T 1101. On September 9, 2015, Plaintiff presented to Corinna Bowerman, RN, after an overdose of pills. T 1365. Plaintiff reported feeling worthless, hopeless, and helpless, felt like nobody 6 8 needed her, and that if she died nobody would care. T 1365. On the same day, Plaintiff treated with Jessica Black, RN. T 1551. Plaintiff reported feeling unimportant and burdensome, as well as having poor sleep, and both physical and emotional weakness. T 1551. Plaintiff indicated that her depression has been worse since she stopped working. T 1551. Plaintiff treated with a therapist at the Little Rock Community Mental Health Center on September 21, 2015. T 1461. Plaintiff reported a history of cutting since age 15, auditory hallucinations that tell her she is worthless, sleeping up to 13 hours a night, feeling tired, having heavy limbs, cognitive and physical slowing, anhedonia, and hopelessness. T 1461. Plaintiff also noted periods which last about a month where she will sleep only 2 to 4 hours per night. T 1461. Plaintiff treated with Laroya Jenkins, PT, on September 25, 2015. T 1752. Plaintiff reported being unable to tolerate prolonged walking, sitting, movement, or cooking. T 1752. Additionally, Plaintiff reported difficulty kneeling secondary to knee pain, left worse than right, and will place all of her weight on the right side in order to bend and lift things up to 20 pounds. T 1752. Therapist Jenkins performed left functional tests, where she noted Plaintiff had pain and impaired control during partial squats, was unable to perform a left single leg squat, and had pain and impaired control in a single leg stance. T 1753. Regarding the right leg, Plaintiff had impaired control with partial squatting, was unable to perform a single leg squat, and had pain and impaired control with a single leg stance. T 1753. Therapist Jenkins observed left lower extremity atrophy, left patella alta, genu varus and left genu recurvatum, tenderness in the medial joint line, and reduced strength. T 1754. Plaintiff treated with Dr. Cassat once more on December 2, 2015. T 1932. Plaintiff reported bilateral hip pain over both buttocks, which radiates to the back of both legs, which was 7 8 worse with activity and relieved by rest. T 1932. Dr. Cassat indicated tenderness over the SI joints, limited ranges of flexion and extension with reproduction of pain, and observed positive seated straight leg raise testing. T 1932. Plaintiff appeared to Senthil Kumar Raghavan, M.D., on December 23, 2015, reporting bilateral wrist pain. T 1889. Plaintiff indicated that this wrist pain was slowly getting worse, and she now has tingling and numbness in her fingers as well. T 1889. Dr. Raghavan observed slight tenderness in both wrists, and prescribed her arm braces for her bilateral carpal tunnel syndrome. T 1889. Plaintiff treated with Michael D. Cassat, M.D., on November 12, 2015. T 1667. Dr. Cassat noted that Plaintiff was having significant bilateral knee pain, despite using the medial unloader brace, and indicated that she could not tolerate anti-inflammatory medications. T 1667. Plaintiff saw Dr. Cassat once again on January 8, 2016. T 2341. Plaintiff reported continuing chronic joint pain, and was having more pain in her right knee with activity, especially after sitting for prolonged periods of time. T 2341. Plaintiff treated with a LCSW from Little Rock Community Mental Health Center for her depression on February 23, 2016. T 2182. Plaintiff reported that while on medications, she was still feeling depressed, still feels like crying, and feels worthless, helpless, and useless. T 2182. Plaintiff reported that she felt like a waste, had passive thoughts of wanting to die, and that her mind feels stuck on the bad things, was frustrated and tiresome, and indicated that nothing goes her way. T 2182. The therapist observed Plaintiff to appear with a depressed mood, constricted and sometimes tearful affect, and diagnosed her with major depressive disorder, recurrent, severe, borderline personality disorder, and COPD. T 2183. /// 8 8 b. Hearing Testimony Plaintiff testified to the following: She worked as a CNA but had to quit after almost passing out and being too instable to carry patients. T 43. She has been having Transient Ischemic Attacks ("TIAs") on a regular basis since 2013. T 44. These feel like mini-strokes where her whole body is paralyzed and she cannot speak. T 59. This occurs once or twice a week. T 59. She can only do water exercises, and weighs 372 pounds. T 45. She tries to lose weight, but has gained it back. T 46. She was going to college for medical terminology, but did not finish because she cannot sit at computers for long periods of time without getting up and walking around. T 47. After she sits for a length of time, her knee becomes stiff, burns, and swells. T 48. Her depression started before 2010, and she began taking antidepressants around 2013. T 51. She was taking albuterol until recently for her asthma, but she was taken off of it due to continued shortness of breath. T 51. Certain foods give her abdominal pain, which will make her throw up. T 53. Her knee issues began about two years prior to the hearing, and she has been prescribed a cane to use. T 54. She has a brace to help stabilize her knee, and walks around the house with her cane every day. T 55. Even with the cane, she falls two to three times per week on average. T 55. Even with a CPAP machine she wakes up without energy and with headaches. T 58. She can sit for 30 to 45 minutes due to pain, and her knee pain begins as soon as she stands up. T 64. The vocational expert ("VE") testified that a hypothetical person with the same educational background and work experience as Plaintiff, with the ALJ's stated RFC, would be unable to perform Plaintiff's past relevant work, but could perform other work in the national economy as a telemarketer, or appointment clerk. T 68. If such a person were to require 9 8 unscheduled breaks every hour or two, which each lasted 10 to 15 minutes at a time, there would be no work. T 69. III. ARGUMENT Pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), this Court may review the record to determine whether the Commissioner applied proper legal standards and whether substantial evidence supports the final agency decision to deny Plaintiff benefits. Substantial evidence means more than a scintilla. "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 400 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 229 (1938)). Substantial evidence is relevant evidence which a reasonable mind would accept as adequate to support the Commissioner's conclusion. In determining whether the existing evidence is substantial, the court must consider evidence that detracts from the Commissioner's decision as well as evidence that supports it. Gray v. Apfel, 192 F.3d 799, 802 (8th Cir. 1999). A. The ALJ failed to include any of Plaintiff's mental impairments in the hypothetical question to the vocational expert, leaving the RFC and Step 5 determinations unsupported by substantial evidence. An RFC is the most a claimant can still do despite his physical or mental limitations. Neeley v. Berryhill, No. 4:16-CV-00883-DGK, 2017 WL 4074614, at *2 (W.D. Mo. Sept. 14, 2017). An ALJ should consider "'all the evidence in the record' in determining the RFC, including 'the medical records, observations of treating physicians and others, and an individual's own description of [his] limitations.'" Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir. 2002)). An ALJ must consider all of Plaintiff's relevant, credible impairments in his RFC formulation. 10 8 Clevenger v. Colvin, No. 15-CV-6087-SJ-DGK-SSA, 2016 WL 3911982, at *2 (W.D. Mo. July 15, 2016) (citing Mabry v. Colvin, 815 F.3d 386, 390 (8th Cir. 2016)). "Our cases generally have required the ALJ to orient the VE to the totality of a claimant's limitations. Among the limitations the VE must consider are deficiencies of concentration, persistence and pace." O'Connor-Spinner v. Astrue, 627 F.3d 615, 619 (7th Cir. 2010); see also Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009); Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir. 2003); Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002). "A 'regular and continuing basis' means 8 hours a day, for 5 days a week." Social Security Ruling ("SSR") 96-8p. The RFC must identify the individual's functional limitations and assess their work-related abilities on a function-by- function basis. Id. In determining a claimant's RFC, the ALJ must consider the limiting effects of all impairments, even those that are not severe. 20 CFR §§ 404.1545(e), 416.945(e); see also Cunningham v. Apfel, 222 F.3d 496, 502 (8th Cir. 2000). Here, the ALJ limited Plaintiff to sedentary work, without significant stooping, crouching, or bending. T 21. Prior to this RFC determination, the ALJ found that Plaintiff had mild limitations in her activities of daily living, mild limitations in social functioning, and mild limitations in concentration, persistence, and pace. T 20. Despite finding that Plaintiff suffered from major depressive disorder and anxiety disorder, and discussing her mental impairments throughout the decision, he failed to include any mental limitations in the RFC assessment, or hypothetical question to the VE. The ALJ failed to include any mental limitations, even after finding defects himself. The hypothetical posed to the vocational expert did not encompass all of Plaintiff's impairments since it did not include Plaintiff's deficiencies in concentration, persistence, or pace, social functioning, and activities of daily living. A hypothetical question that omits the effects of 11 8 concentration, persistence, or pace deficiencies that the ALJ has found is not sufficient. Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996). The testimony of a vocational expert who responds to a hypothetical based on such evidence is not substantial evidence upon which to base a denial of benefits. Nevland, 204 F.3d at 858 (8th Cir. 2000). The ALJ's failure to include any mental limitations in the RFC or hypothetical to the VE leaves both the RFC and Step 5 determination unsupported by substantial evidence. Remand is required for further administrative proceedings. B. The ALJ improperly rejected the opinion of Plaintiff's treating physician Dr. Betton, and relied on his own lay opinion in producing an RFC which was unsupported by substantial evidence. The opinion of a treating physician is given special significance in social security proceedings. 20 C.F.R. §§ 404.1527, 416.927. Generally, opinions of treating physicians are en- titled to more weight than opinions from other sources who have not examined the individual. Id. Specifically, "a treating physician's opinion should not ordinarily be disregarded and is enti- tled to substantial weight. A treating physician's opinion regarding an applicant's impairment will be granted controlling weight, provided the opinion is well supported by medically accepta- ble clinical and laboratory diagnostic techniques and is not inconsistent with other substantial ev- idence of record." Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000) (internal citations omitted). Even if a treating physician's opinion is not given "controlling weight," it is still entitled to deference, and the ALJ must assess the following factors to determine how much weight to afford the opinion: the length of the treatment relationship, the frequency of examination by the treating physician, the medical evidence supporting the opinion with the record as a whole, the qualifications of the treating physician, and other factors tending to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). "The notice of the determination or 12 8 decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p (emphasis added). Where the ALJ fails to meet this standard, the case must be remanded. See Liles-Lawyer v. Astrue, 2012 U.S. Dist. LEXIS 16754, 174 Soc. Sec. Rep. Service 444, 2012 WL 443511 (W.D. Ark. 2012) (Remanding where the record [did] not contain other medical assessments which are supported by better or more thorough medical evidence as required by SSR 96-2p[ ] in order to disregard a treating physician's opinion.) The Eighth Circuit has upheld the dismissal of a treating physician's opinion where other medical opinions are more supported by the evidence, or where a treating physician's opinion is inconsistent with itself. Reed v. Barnhart, 399 F.3d 917, 920-21 (8th Cir. 2005). None of those factors are present here. Here, the ALJ assigned partial weight to Dr. Betton's second statement, giving little weight to his restrictions that Plaintiff would need frequent work breaks, and that she would have upper extremity limitations. T 24. The ALJ explained that he gave them little weight because they were not consistent with Dr. Betton's treatment records, and objective evidence was lacking. T 24. The ALJ gives no "good reasons" to discount only the disabling portions of Dr. Betton's opinion. He cites a lack of objective evidence to support Plaintiff's subjective reports, but seems to think that they are supportive enough to limit Plaintiff to "no significant stooping, bending, or crouching." T 24. The ALJ explains no evidence which is contrary to this report, and then discounts the later restrictions he does not agree with based on this. Courts in this circuit have found that while an ALJ is not required to explain all the evidence in the record, "this does not give an ALJ the opportunity to pick and choose only evidence in the record buttressing his 13 8 conclusion." Taylor ex rel. McKinnies v. Barnhart, 333 F.Supp.2d 846, 856 (E.D. Mo. 2004). Here, the ALJ impermissibly picks and chooses only non-disabling symptoms, while ignoring the extensive objective and subjective evidence of disability. Further, Dr. Betton's opinions are only different than a blank sheet from Dr. Johnson, and the State agency physicians. Here, it is notable that the residual functional capacity form was entirely blank. The ALJ contorts this to mean that Plaintiff must have no limitations. Here, Dr. Johnson examined Plaintiff once after a car accident, and his examination was limited to the left knee. T 936, 1789. Dr. Johnson opined nothing contrary to Dr. Betton's opinion, as he opined nothing at all. Further, even if this was equivalent to no limitations, "the opinion of a consulting physician who examines a claimant once or not at all does not generally constitute substantial evidence." Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir.1998). Additionally, the State agency physicians gave no opinion regarding break times, and thus their opinions cannot be used to contradict Dr. Betton's opinion on this matter. Here, the ALJ is left with no evidence contradicting Dr. Betton's treating physician opinion, while the record supports the treating opinion. For example, in 2012 Dr. Joseph noted left shoulder tenderness along the bicipital groove, pain with resisted flexion of the arm, positive impingement signs, and pain with raising the arm laterally or anteriorly. T 395. In 2014, Dr. Mehaffey observed giveaway weakness in all extremities, with 4/5 strength throughout, and decreased sensation over the left upper and lower extremities. T 857. Later that year, an MRI revealed a medial extrusion of the bony segment of the menial meniscus, and mild medial compartment osseous spurring, as well as edema anterior to the distal patellar tendon, degenerative changes in the medial compartment, mild narrow edema in the medial aspect of the medial femoral condyle with associated osseous spurring, and small joint effusion. T 934-35. In 14 8 early 2015, Dr. Wells observed decreased range of motion, swelling and bony tenderness in the left knee. T 1101. Later that year, Plaintiff underwent physical therapy, where PT Jenkins observed that Plaintiff had pain and impaired control during partial squats, was unable to perform a left single leg squat, and had pain and impaired control in a single leg stance. T 1753. Regarding the right leg, Plaintiff had impaired control with partial squatting, was unable to perform a single leg squat, and had pain and impaired control with a single leg stance. T 1753. PT Jenkins observed left lower extremity atrophy, left patella alta, genu varus and left genu recurvatum, tenderness in the medial joint line, and reduced strength. T 1754. In late 2015 Dr. Cassat noted that Plaintiff was having significant bilateral knee pain, despite using the medial unloader brace. T 1667. Dr. Cassat also observed tenderness over the SI joints, limited ranges of flexion and extension with reproduction of pain, and observed positive seated straight leg raise testing. T 1932. An ALJ may not simply draw his own inferences about a claimant's RFC from medical reports. Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004); Pate-Fires v. Astrue, 564 F.3d 935, 946 (8th Cir. 2009); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996). Thus, with no evidence contrary to Dr. Betton's opinion, the ALJ further erred by impermissibly playing doctor while rejecting only the disabling portion of Dr. Betton's highly supported opinion. Therefore, Dr. Betton's treating source assessment is entitled to significant, if not controlling weight. Johnson v. Astrue, 628 F.3d 991, 994 (8th Cir. 2011) (treating physician's opinion is given controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence). Ultimately, the ALJ erred in discounting Dr. Betton's opinion, and provided no legitimate reasons for rejecting his assessment. As the ALJ failed to point to any evidence which tends to 15 8 contradict his opinion except for a blank form and non-examining sources, this matter should be remanded so Dr. Betton's opinion may be afforded significant, if not controlling, weight. Further, the ALJ's own RFC is inherently vague regarding crucial elements of sedentary work. Here, the ALJ's limitation to no "significant stooping, crouching, or bending," sheds no light on the amount of time Plaintiff would be able to stoop throughout an average workday. T 21. An ability to stoop occasionally; i.e., from very little up to one-third of the time, is required in most unskilled sedentary occupations. SSR 96-9p. A complete inability to stoop would significantly erode the unskilled sedentary occupational base and a finding that the individual is disabled would usually apply, but restriction to occasional stooping should, by itself, only minimally erode the unskilled occupational base of sedentary work. Id. Consultation with a vocational resource may be particularly useful for cases where the individual is limited to less than occasional stooping. Id. Here, it is unclear what the ALJ means by this inability to significantly stoop, and this was further error, as the ALJ must build "an accurate and logical bridge" between the evidence and his decision. St. Clair v. Colvin, No. 2:12-04250-DGK-SSA, 2013 WL 4400832, at *2 (W.D. Mo. Aug. 14, 2013) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996)). Finally, as Dr. Johnson's opinion is literally blank, the ALJ is left to rely on the opinions of the State agency physicians to discount Dr. Betton. However, the ALJ's reliance on these opinions would also constitute error as these assessments were stale, being completed in early to mid-2014. T 77, 89, 103, 119. This means that the State agency physicians did not have access to many treatment notes, were not informed of Plaintiff's suicide attempt, and were unware of multiple disabling opinions by Dr. Betton and Therapist Holt. "The brief, conclusory opinions of the non-examining physicians provide little substance and do not equate with 'better or more 16 8 thorough medical evidence.'" Gillette v. Barnhart, 291 F. Supp. 2d 1071, 1077 (D.N.D. 2003). As the Eighth Circuit has held, the assessments of State agency medical consultants cannot constitute substantial evidence if they are not based upon a full record. Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir. 1995); see also Sultan v. Barnhart, 368 F.3d 857, 863 (8th 2004) (opinions of non-examining state agency consultants are entitled to little weight in evaluating disability); Gilette, 291 F. Supp. 2d at 1077 ("It is important to note that the opinions of non- examining physicians ordinarily do not constitute substantial evidence on the record as a whole."). This is certainly not a case where the State agency assessments "are supported by better or more thorough evidence" than the treating physician. See Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997). The ALJ's RFC assessment is based upon a selective view of the medical evidence of record, from which he drew inferences about Plaintiff's RFC with no supporting medical assessment. Therefore, substantial evidence of record does not support the ALJ's RFC finding. V. CONCLUSION For the foregoing reasons, it is respectfully requested that the final agency decision be vacated and that this matter remanded to the agency for de novo hearing and new decision. January 22, 2018 Respectfully submitted, /s/ Howard D. Olinsky Howard D. Olinsky, Esq. Olinsky Law Group Attorneys for Plaintiff 300 South State Street, Suite 420 Syracuse, New York 13202 Phone: (315) 701-5780 Fax: (315) 701-5781 holinsky@windisability.com 17 8 CERTIFICATE OF SERVICE I hereby certify that on January 22, 2018, I electronically filed the foregoing with the Clerk of the District Court using the CM/ECF system, which sent notification of such filing to Stacey McCord, Esq., an ECF registrant: /s/ Howard D. Olinsky Howard D. Olinsky, Esq. 18

DEFENDANT'S BRIEF filed by Social Security Administration.

7 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION SHAKICA SHAUNTE WASHINGTON,) Plaintiff)) vs.) CIVIL ACTION NO.) 4:17-CV-00555-BD) NANCY A. BERRYHILL, ACTING) COMMISSIONER OF SOCIAL) SECURITY ADMINISTRATION,) Defendant) DEFENDANT=S APPEAL BRIEF I. STATEMENT OF THE CASE A. General This is an action for judicial review pursuant to 42 U.S.C. ' 405(g) of the Social Security Act of the final decision of the Commissioner (the Commissioner). The Commissioner denied Plaintiff's claims for Disability Insurance Benefits (DIB) under 42 U.S.C. §§ 216(i) and 223 of Title II of the Act, and Supplemental Security Income Benefits (SSI) under 42 U.S.C. §§ 416(i) and 423 of Title XVI of the Act. Tr. 16-26. The Commissioner rejected Plaintiff=s claims that her impairments entitled her to benefits as the Commissioner determined that Plaintiff=s impairments were not disabling within the meaning of the Act. Tr. 16-26. The Commissioner submits that there is substantial evidence in the record to support her denial of benefits. 7 II. ISSUE The is whether substantial evidence exists in the record to support the final decision of the Commissioner that Plaintiff was not disabled by an impairment or a combination of impairments between October 7, 2013, Plaintiff's alleged onset date of disability, and July 6, 2016, the date of the administrative law judge's (ALJ) decision. III. ARGUMENT SUBSTANTIAL EVIDENCE SUPPORTS THE COMMISSIONER=S DECISION THAT PLAINTIFF WAS NOT DISABLED WITHIN THE MEANING OF THE ACT. THEREFORE, THE COMMISSIONER'S DECISION MUST BE AFFIRMED. A. Judicial Standard The role of the Court under 42 U.S.C. ' 405(g) is to determine whether there is substantial evidence in the record to support the decision of the Commissioner, and not to reweigh the evidence or try the issues de novo. Loving v. Dept. of H.H.S., 16 F.3d 967, 969 (8th Cir. 1994); see also Sykes v. Bowen, 854 F.2d 284, 285 (8th Cir. 1988). If supported by substantial evidence, the Commissioner=s findings are conclusive and must be affirmed. Richardson v. Perales, 403 U.S. 389, 390 (1971). Substantial evidence is more than a scintilla, but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. at 401. Reversal is unwarranted merely because substantial evidence would have supported an opposite decision. Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995). 2 7 B. Burden of Proof The Act=s regulations require that the Commissioner apply a five-step sequential evaluation process to each claim for disability.1 When a determination that a plaintiff is disabled can be made at any step, evaluation under a subsequent step is unnecessary. Bartlett v. Heckler, 777 F.2d 1318, 1318 (8th Cir. 1985). The plaintiff retains the burden of proof for the initial four steps of the process. Plaintiff has the burden of proving her disability by establishing a physical or mental impairment lasting at least twelve months that prevents her from engaging in any substantial gainful activity. Ingram v. Chater, 107 F.3d, 598, 601 (8th Cir. 1997); see also Sykes, 854 F.2d at 285; 42 U.S.C. §§ 423(d)(1)(a), 1382c(a)(3)(A). The act defines a Aphysical or mental impairment@ as Aan impairment that results from anatomical, physiological, or psychological abnormalities that is demonstrable by medically acceptable clinical and laboratory diagnostic techniques.@ 42 U.S.C. §§ 423(d)(3); 1382c(3)(C). Here, the ALJ found Plaintiff not disabled at the fifth step of the sequential evaluation process. Because Plaintiff met her burden of proof for the initial four steps of the process, the burden of proof shifted to the Commissioner to show that, while Plaintiff could not perform her past relevant work, she 1 The five steps of the sequential process are as follows: (1) is plaintiff currently working? (2) is/are plaintiff's impairment(s) severe? If so, (3) does her impairment(s) meet or equal an impairment listed in Appendix 1? If no, (4) does the impairment prevent plaintiff from doing her past relevant work? If yes, (5) does the impairment prevent her from doing any other work? 20 C.F.R. §§ 404.1520, 416.920. 3 7 could perform other work in the economy, to support a finding of not disabled. See 20 C.F.R. §§ 404.1520 416.920. As the Commissioner will show herein, the ALJ properly concluded, based on the testimony of a vocational expert (VE), that Plaintiff could perform a significant number of other jobs in the economy. Tr. 25-26. Therefore, the ALJ properly found Plaintiff not disabled within the meaning of the Act. C. Substantial evidence supports the ALJ's residual functional capacity finding (RFC), and the VE's testimony supports the ALJ's finding that Plaintiff was not disabled because she retained the ability to perform other work that exists in significant numbers in the national economy. i. The ALJ's hypothetical question to the VE did not require the inclusion of limitations to account for Plaintiff's non-severe mental impairments, and the VE's response provides substantial evidentiary support for the ALJ's step five decision. Because the ALJ properly concluded that Plaintiff's mood disorder and anxiety did not impose more than mild functional limitations on Plaintiff's ability to perform the basic mental requirements of work, the ALJ properly omitted any mental-related limitations in his hypothetical question to the VE. Contra. Plaintiff's Appeal Brief at 10-11. See Owen v. Astrue, 551 F.3d 792, 799 (8th Cir. 2008) (an ALJ may omit alleged impairments from a hypothetical question to a VE when there is no medical evidence that the condition imposed limitations on the plaintiff's functional capabilities). In response to a hypothetical question that assumed an individual with Plaintiff=s age, education, work experience, and RFC, the VE testified that an individual, such as Plaintiff, could 4 7 perform jobs as a telemarketer and appointment clerk. Tr. 26, 68. Therefore, the Commissioner met her burden of proving that a significant number of jobs existed in the economy that Plaintiff could perform during the relevant period, and properly found Plaintiff not disabled within the meaning of the Act. See Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999) (a vocational expert's testimony based on a properly phrased hypothetical question constitutes substantial evidence). Contra. Plaintiff's Appeal Brief at 10-11. Plaintiff suggests that the mere diagnoses of her mood disorder and anxiety required the ALJ to include limitations in his hypothetical question to the VE to accommodate these impairments, and that the ALJ's failure to do so undercuts the supportability of the ALJ's step five decision. See Plaintiff's Appeal Brief at 10. Plaintiff is mistaken. The Eighth Circuit has consistently held that the pivotal issue in a claim for disability is not the diagnosis of an impairment, but is instead, the functional limitations, if any, imposed by that impairment. See Trenary v. Bowen, 898 F.2d 1361, 1364 (8th Cir. 1990). This is significant because Plaintiff's clinical findings support the ALJ's finding that neither Plaintiff's mood disorder, nor anxiety imposed more than mild limitations on her ability to perform the basic mental requirements of work.2 2 After finding that Plaintiff had no episodes of decompensation and that her mood disorder and anxiety imposed no more than "mild" limitations on her ability to concentrate, maintain pace and persistence, perform daily activities, and socially function, the ALJ properly concluded that these impairments were non-severe. Tr. 20-21. Buckner v. Astrue, 646 F. 3d 549, 557 (8th Cir. 2011) (impairment imposed no functional limitations, and was therefore, not severe). 5 7 In October and November 2014, Tina Wells, M.D., noted that Plaintiff had a depressed mood and a flat and slowed affect. Tr. 1050, 1032. Yet, between October 2013 and October 2014, six physicians observed during eight examinations that Plaintiff had normal affect, speech, mood, perception, communicative ability, speech, cognitive functioning, memory, and thought content and processes, and Plaintiff denied anxiety and depression in May and August 2014. Tr. 512, 513-514, 609-610, 670-671, 700, 694, 848, 855, 1651. Moreover, five days following Dr. Wells' notations about Plaintiff's depressed mood and affect, Raines Chaffrin, M.D., observed twice in November 2014 that Plaintiff's mood, affect, and behavior were normal, and Dr. Wells reported in December 2014 that the severity of Plaintiff's psychiatric symptoms were mild and that her speech, behavior, judgment, thought content, cognition, and memory were normal. Tr. 945, 1020, 1022. Likewise, between January 2015 and early September 2015, six physicians, including Dr. Wells, noted during ten examinations that Plaintiff had normal mood, affect, judgment, thought content, behavior, and memory.3 Tr. 1009, 1182, 1287, 1222, 1623, 1602-1603, 1298, 1263, 1437, 1444. Additionally, while Plaintiff attempted 3 Dora Smith, M.D., wrote in January 2015 that Plaintiff's mood and affect were appropriate, and Dr. Wells noted in January, April, and June 2015 that Plaintiff had normal mood, affect, behavior, judgment, and thought content. Tr. 1009, 1182, 1287, 1222. Thanh Nguyen, M.D., reported in January and May 2015 that Plaintiff's appearance, affect, and mood were appropriate. Tr. 1623, 1602-1603. Rodrick Johnson, M.D., observed in June 2015 that Plaintiff had normal mood, affect, and behavior, and Casey Smolarz, M.D., noted in July 2015 that Plaintiff showed normal mood, affect, and behavior. Tr. 1298, 1263. In August 2015, Archana Hindujua, M.D., wrote that Plaintiff showed normal attention span, behavior, affect, language comprehension, memory, and no apraxia, and performed calculations well. Tr. 1437, 1444. 6 7 suicide by an overdose of Ibuprofen and Trazodone in September 2015, within only a few days following her discharge from the hospital, Hannah Henson, M.D., noted that Plaintiff's attitude was cooperative and pleasant and that she showed normal speech, thought processes, attention span, and memory. Tr. 1530, 1537. Notably, following her isolated September 2015 suicide attempt, Plaintiff's examining physicians consistently observed thereafter that her thought processes were relevant and goal-directed, her mood and affect appropriate, and her judgment and cognition intact, and Plaintiff continued to deny suicidal ideation. Tr. 1537, 1462, 1506, 1780, 2054, 1699, 1774, 1730, 1767, 1932, 1764, 1826, 1808, 2380, 2182. Indeed, Plaintiff's consistently normal cognition, thought processes, affect, mood, speech, judgment, and behavior support the ALJ's finding that Plaintiff's mood disorder and anxiety were not severe impairments within the meaning of the Act. See Martise v. Astrue, 641 F.3d 909, 924 (8th Cir. 2011) (impairments (migraines) controlled with medication are not severe). 7 7 So, too, does the amenability of Plaintiff's mood disorder and anxiety to treatment. See Long v. Chater, 108 F.3d 185, 188 (8th Cir. 1997) (an impairment that can be controlled by treatment or medication cannot be considered disabling). Following the initiation of medication in October 2014 for depression, Plaintiff immediately reported improvement in her symptoms, and related that improvement to her prescribed medications. Tr. 980, 978, 1028, 967, 965. In fact, Dr. Wells wrote in December 2014 that Plaintiff's treatment had provided significant relief, and Dr. Nguyen reported in January 2015 that Plaintiff's depression was 80 percent better on Effexor, and noted in May 2015 that Plaintiff's anxiety was under control with Clonazepam. Tr. 1020, 963, 1623, 1602, 1583. Similarly, following her suicide attempt, Plaintiff again reported improvement in mood with Effexor, and by the third week of September 2015, Silakhone Douangkesone, M.D., reported that Plaintiff's depression was stable. Tr. 1532, 1465, 1505, 2181. Since Plaintiff's mood disorder and anxiety were controllable with medication, the ALJ properly concluded that these two impairments were non-severe within the meaning of the Act. See Wilson v. Chater, 76 F. 3d 238, 241 (8th Cir. 1996). Given the ALJ's finding that Plaintiff's mood disorder and anxiety did not impose more than mild functional limitations on her ability to perform the mental demands of work, the ALJ properly omitted any mental-related limitations in his hypothetical question to the VE. See Owen, 551 F.3d at 799. Because the ALJ's hypothetical question to the VE accounted for all of Plaintiff's impairments that were supported by the record, the VE's testimony provides substantial evidence to support the ALJ's step five 8 7 decision.4 See Jones v Astrue, 619 F.3d 963, 972 (8th Cir. 2010). Accordingly, Plaintiff's argument, that the ALJ's fifth step decision, lacks supportability, must fail. ii. The ALJ properly rejected the opinion of Harold Betton, M.D., and substantial evidence supports the ALJ's RFC finding. The ALJ properly rejected Dr. Betton's May 2014 opinion because the objective evidence in the record, as well as Dr Betton's own clinical findings undermine his own opinion. Tr. 24. Moreover, Plaintiff's clinical and radiological findings, conservative course of treatment, and activity level provide substantial evidence to support the ALJ's RFC finding. Contra. Plaintiff's Appeal Brief at 12-16. Plaintiff contends that the ALJ improperly rejected Dr. Betton's May 2014 opinion about her upper extremity limitations and need for frequent breaks because the ALJ provided no explanation for his rejection of the portions favorable to her and because the evidence in the record supports Dr. Betton's opinion. Plaintiff is mistaken. The ALJ specifically stated that he rejected Dr. Betton's opinion because Dr. Betton's own clinical findings, and the other objective evidence in the record undermined Dr. Betton's opinion about Plaintiff's need for frequent breaks and inability to perform reaching, handling and fingering more than 10 to 20 percent of an eight-hour workday. Tr. 24, 1082-1083. An 4 Plaintiff argues that the ALJ's limitation to no significant stooping, bending, and crouching is too vague and sheds no light on the meaning of significant. See Plaintiff's Appeal Brief at 16. Plaintiff's argument is inconsequential to the supportability of the ALJ's decision. Social Security Ruling (SSR) 85-15 defines stooping and bending as the act of bending the spine. Neither of the jobs that the VE identified that Plaintiff could perform, namely the telemarketer job, Dictionary of Occupational Title (DOT) 299.357-014, and the appointment clerk job, DOT 237.367-010, entail stooping, bending, or crouching. Accordingly, the meaning of significant in the ALJ's RFC finding is immaterial. 9 7 ALJ can look at the medical evidence, determine its consistency with a physician's opinion, and discount the physician's opinion, where, as here, that opinion is inconsistent with the evidence. See Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996). Because the ALJ cited the disparity between Dr. Betton's own clinical findings and the other objective evidence in the record, and his September 2014 opinion, the ALJ properly rejected Dr. Betton's opinion. Id. Plaintiff also argues that the ALJ improperly rejected Dr. Betton's opinion because the evidence in the record supports it. See Plaintiff's Appeal Brief at 14. Plaintiff is mistaken. Plaintiff cites a December 2012 examination, in which Plaintiff reported pain in her left shoulder, and Ralph Joseph, M.D., diagnosed her with shoulder tenderness and positive impingement. Tr. 409. See Plaintiff's Appeal Brief at 14. The Commissioner would point out, however, that this evidence predates Plaintiff's alleged onset date of disability, and is only an isolated finding. To the contrary, the evidence in the record shows Plaintiff enjoyed full neurological functioning in her upper extremities without trauma or incident during the entire period at issue. For instance, Drs. Courtney, Williams, and Snipes noted in April, May, July, and September 2014 that Plaintiff had normal strength and tone in her upper extremities, and Dr Hindujua reported in August 2015, that Plaintiff had full muscle strength at her shoulders and elbows. Tr. 610, 671, 701, 848, 1437. This evidence contradicts the isolated December 2012 finding of positive shoulder impingement upon which Plaintiff relies. Likewise, Plaintiff contends that the evidence of her knee impairment, as well as 10 7 the lack of treating or examining opinion in the record, undermines the ALJ's rejection of Dr. Betton's opinion and the supportability of the ALJ's RFC finding. See Plaintiff's Appeal Brief at 14-16. Plaintiff's argument lacks merit. Although an RFC assessment draws from the medical evidence for support, it is not a medical opinion, but is, instead, an administrative assessment reserved to the Commissioner, of the extent to which a claimant's impairments and related symptoms affect her capacity to perform work-related activities on a regular and continuing basis. See Cox v. Astrue, 495 F.3d 614, 619-620 (8th Cir. 2007); 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Social Security Ruling (SSR) 96-8p, 1996 WL 374184, at *2. Therefore, it is the ALJ, not a physician, who has the sole responsibility for determining a claimant's RFC. Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004); 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); SSR 96-5p, 1996 WL 374183, at *2. The assessment of a claimant's RFC is "based on all the relevant evidence in [the claimant's] case record," and not simply on the opinions from medical sources. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). Moreover, while it is the ALJ's responsibility to assess a claimant's RFC, it is the claimant's burden to provide evidence establishing her functional limitations, not the ALJ's burden to provide evidence supporting his RFC determination. See Charles v. Barnhart, 375 F.3d 777, 782 n.5 (8th Cir. 2004). To carry her burden, a claimant must provide objective medical evidence and cannot rely merely on her subjective statements of her symptoms. 20 C.F.R. §§ 404.1508, 416.908, 404.1512(c), 416.912(c), 404.1528(a), 416.928(a). Substantial evidence supports the ALJ's finding that Plaintiff retained the ability to 11 7 perform the requirements of sedentary work that did not entail significant stooping, crouching, or bending. Plaintiff correctly points out that a magnetic resonance imaging (MRI) study in December 2014 showed degenerative changes in the medial compartment with mild edema, bursitis, and a small joint effusion in her left knee. Tr. 934. Nevertheless, the MRI also proved negative for a meniscal tear or a ligamentous injury, and aside from complaints of tenderness, sporadic findings of edema, and some decreased range of motion, Plaintiff maintained relatively normal neurological functioning and a normal gait throughout the period at issue. Tr. 934-935, 944, 1005, 1088, 1221, 1118, 1167, 1317, 1287, 1682, 1667. Dr. John reported in October and November 2013 that Plaintiff had normal motor, sensory, and reflex functioning and normal gait, and Dr. Betton reported between October 2013 and September 2014 that Plaintiff had normal musculoskeletal findings, reflexes, stance, and gait. Tr. 512, 514,582, 567, 652, 637, 646, 626-627, 735, 722-723, 710, 712-713. Echoing those findings, Drs. Courtney, Williams, Mahuwala, Bylow, and Chaffin reported between July 2014 and November 2014, that Plaintiff walked with a normal gait, had full muscle strength in his upper and lower extremities and normal ranges of motion, and showed no tenderness or deformities in his neck, spine, or pelvis. Tr. 610, 670, 699-700, 696, 848, 853-854, 861, 1651, 944. Moreover, despite finding severe joint tenderness in her left knee, John Vander Schilden, M.D., observed in February 2015 that Plaintiff's knee was stable to varus and valgus and showed intact motor and sensory functioning. Tr. 1089. Further, David Marvin, M.D, noted in September 2015 that Plaintiff had full muscle strength in her upper and lower 12 7 extremities, and Zubair Ahmed, M.D., reported in January 2016 that Plaintiff showed no edema and had normal peripheral pulses and no focal motor or sensory deficits. 1547, 2351. Plaintiff's lack of neurological deficits and normal gait support the ALJ's finding that Plaintiff retained the ability to perform a restricted level of sedentary work. See Lochner v. Sullivan, 968 F.2d 725, 728 (8th Cir. 1992) (the invariable lack of clinical findings showing plaintiff suffered neurological deficits diminishes the plaintiff's complaints of disabling pain). The state agency physician's opinion about Plaintiff's physical abilities support the ALJ's functional capacity finding. Although the ALJ accorded the benefit of the doubt and reduced Plaintiff's RFC to no significant stooping, crouching, or bending, Rita Allbright, M.D., opined in June 2014 that Plaintiff retained the ability to perform the demands of sedentary work. Tr. 113-114. The state agency physician's opinion supports the ALJ's functional capacity finding. See SSR 96-6p and 20 C.F.R. §§ 404.1527(f), 416.1527(f); see also Stormo v. Barnhart, 377 F.3d 801, 807-08 (8th Cir. 2004) (ALJ properly utilized evidence from State agency medical consultants to support, in part, decision that claimant was not disabled); Ostronski, 94 F.3d at 417 (a reviewing physician's opinion can support a finding that a claimant is not disabled). Plaintiff contends that the ALJ could not rely on Dr. Allbright's opinion because her opinion is outdated. See Plaintiff's Appeal Brief at 16. Yet, Dr. Allbright's assessment is inclusive of Plaintiff's alleged period of disability. What is more, Plaintiff disparages the weight the ALJ accorded to Dr. Allbright's opinion because of its age, yet at the same 13 7 time, she argues that the ALJ erred by discounting a portion of Dr. Betton's opinion that is only three months more recent than Dr. Allbright's. In short, the ALJ properly relied on Dr. Allbright's opinion in formulating his RFC finding. The conservative course of treatment with which Plaintiff's physicians opted to treat her knee pain equally supports the ALJ's RFC finding. Notably, following Plaintiff's MRI, Dr. Schilden observed in February 2015 that Plaintiff's knee impairment did not require surgery and that she should continue to take Ibuprofen as needed. Tr. 1090. Additionally, Dr. Wells advised Plaintiff in November 2014 to engage in aerobic exercise, Dr. Hindujua recommended in August 2015 that Plaintiff walk or dance, and Dr. Douangkesone told Plaintiff in September 2015 to perform regular exercise. Tr. 1027, 1438, 1506. The fact that Plaintiff's knee did not warrant surgical intervention, and that three of her physicians advised her perform exercise supports the ALJ's finding that she retained the ability to perform sedentary work. See Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006) (plaintiff's physician's decision to treat her with exercise and medication, but not surgery, undermined her allegations of disability). Plaintiff's activity level also supports the ALJ's RFC finding. Plaintiff testified at the administrative hearing that she lives with her thirteen year-old disabled child, and reported in her function reports that she cares for her children, prepares meals, performs household chores, shops in stores, handles her finances, reads, talks on the phone with coworkers, folds laundry, and attends church. Tr. 42, 302-305, 320-322. Plaintiff also reported to her therapist, Laura Holt, in November and December 2014 that she 14 7 continued to plan family activities and sew, and was doing very well in school. Tr. 928, 967, 963, 965. In March 2015, Plaintiff told Ms. Holt that she cared for her own nails and hair and was currently attending school. Tr. 1620, 1609. Similarly, Plaintiff reported to Pamela Morrow in September 2015 that her leisure activities included gardening, walking, listening to gospel music, and attending church. Tr. 1362, 1571. Such a normal level of activity belies Plaintiff's claims that her impairments were disabling. See Roberson v. Astrue, 481 F.3d 1020, 1023 (8th Cir. 2007) (plaintiff's ability to care for her 11-year-old child, drive, fix simple meals, perform housework, shop for groceries, and handle money contradicts plaintiff's credibility); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (plaintiff's ability to do housework, visit friends, and attend church undermines the credibility of her complaints); Reed v. Sullivan, 988 F.2d 812, 815 (8th Cir. 1993) (plaintiff's ability to clean her home, care for children, cook, and shop with help from her family contradicts the credibility of plaintiff's complaints). In conclusion, the inconsistencies that exist in the record between Plaintiff=s subjective complaints of limitation and the objective evidence, diminish her credibility and the ALJ properly took account of this. While this Court may have weighed the evidence differently, it may not reverse the Commissioner's decision when there is enough evidence in the record to support either outcome. See Browning 958 F.2d at 822. The Commissioner submits that the VE's testimony provides substantial evidence to support the ALJ's decision, and, therefore, the ALJ's decision must be affirmed. 15 7 IV. CONCLUSION There is substantial evidence of record to support the Commissioner=s decision that Plaintiff was not disabled within the meaning of the Act. Considered as a whole, the medical evidence does not demonstrate findings to support a disabling condition consistent with Plaintiff=s subjective complaints. Further, the VE's testimony supports the ALJ's decision that Plaintiff was not disabled within the meaning of the Act. For the above reasons, the Commissioner requests that her decision be Affirmed. Respectfully submitted, CODY HILAND Acting United States Attorney STACEY E. McCORD Assistant United States Attorney TRACI B. DAVIS Acting Regional Chief Counsel Social Security Administration /s/ Angeline S. Reese ANGELINE S. REESE Special Assistant United States Attorney Attorney-in-Charge Federal Bar No. 346637 Texas Bar No. 00785819 Office of the General Counsel Social Security Administration 1301 Young Street, Suite A702 Dallas, Texas 75202 Office: (214) 767-7323; Fax:(214) 767-4117 angie.reese@ssa.gov 16 7 CERTIFICATE OF SERVICE I hereby certify that on March 5, 2018, I electronically transmitted the attached document to the Clerk of the Court using the ECF=s system for filing and transmittal of the Defendant=s Brief to Plaintiff=s attorney, Howard D. Olinsky, an ECF registrant. /s/ Angeline S. Reese ANGELINE S. REESE Special Assistant United States Attorney 17

ORDER REMANDING TO THE COMMISSIONER the case with instructions to develop the record as necessary and to reconsider Ms. Washington's mental impairments, including appropriate limitations in a new RFC. Signed by Magistrate Judge Beth Deere on 7/12/2018.

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION SHAKICA SHAUNTE WASHINGTON PLAINTIFF V. CASE NO. 4:17-CV-555-BD SOCIAL SECURITY ADMINISTRATION DEFENDANT ORDER REMANDING TO THE COMMISSIONER Shakica Washington applied for social security disability benefits with an alleged onset date of October 7, 2013. (R. at 77). The administrative law judge ("ALJ") denied Ms. Washington's application after a hearing (R. at 26), and the Appeals Council denied her request for review. (R. at 1). Ms. Washington filed this lawsuit seeking judicial review of the decision. The parties have consented to the jurisdiction of the magistrate judge. I. The Commissioner's Decision: The ALJ found that Ms. Washington's obesity and degenerative joint disease were severe impairments (R. at 18) but found that her mental impairments were not severe. (R. at 19–20). According to the ALJ, Ms. Washington had the residual functional capacity to perform sedentary work, except that she could not perform significant stooping, crouching, or bending. (R. at 21). This RFC precluded Ms. Washington from performing her past relevant work. (R. at 25). At the hearing, a vocational expert (VE) testified that a person with this RFC would be able to perform jobs such as telemarketer or appointment clerk. (R. at 26). The ALJ therefore held that Ms. Washington was not disabled. (R. at 28–26). II. Discussion: The court's role in this appeal is to determine whether the Commissioner's findings are supported by substantial evidence. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000). In this context, "substantial evidence" means "enough that a reasonable mind would find it adequate to support he [ALJ's] decision." Id; Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009) (citation omitted). In reviewing the decision, the Court must consider not only evidence that supports the Commissioner's decision, but also, evidence that supports a contrary outcome. The Court cannot reverse the decision, however, "merely because substantial evidence exists for the opposite decision." Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (quoting Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)). Ms. Washington argues that the ALJ erred by failing to include any accommodation for her mental impairments in the RFC and by improperly rejecting the opinion of her treating physician. Because the ALJ erred by improperly failing to account for Ms. Washington's mental impairments in determining her RFC, it is not necessary to reach her other point. Ms. Washington was diagnosed with major depressive disorder and borderline personality disorder. (R. at 1763–64). In September 2015, she attempted suicide by overdose. (R. at 1365). In therapy, she reported a history of cutting since age 15, sleeping 2 ten-to-thirteen hours a night, but with periods when she slept only two-to-four hours a night. (R. at 1461). The Commissioner points out that Ms. Washington reported an 80% improvement in her symptoms in December of 2014. (R. at 1020). And records also reflect an improvement in May of 2015, when she was taking Clonazepam for anxiety. (R. at 1602). That said, these records precede Ms. Washington's suicide attempt, which strongly suggests that her symptoms were not actually well controlled. The Commissioner also notes that Ms. Washington's depression was noted to be stable weeks after her suicide attempt. (R. at 1505). Yet, in November of 2015, Ms. Washington reported: depression as an 8 on a 10-point scale, poor sleep, nightmares, periodic auditory hallucinations, anhedonia, and distractibility. (R. at 1767). This evidence all indicates that her mental impairments imposed at least some restrictions on her abilities. Even assuming the ALJ was correct in classifying Ms. Washington's mental impairments as non-severe, remand would still be appropriate. An RFC must account for all credible impairments – both severe and non-severe. Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008). Here, the ALJ even acknowledged that Ms. Washington had some mental limitations in his step-two analysis. (R. at 20). When Ms. Washington's records are considered along with the fact that she had attempted suicide less than a year prior to the ALJ's decision, it is inconceivable that she was entirely free of mental limitations at the time of the ALJ's decision. 3 III. Conclusion: The ALJ failed to fully and fairly develop the record regarding Ms. Washington's mental impairments. Accordingly, the case is hereby remanded, with instructions to develop the record as necessary and to reconsider Ms. Washington's mental impairments, including appropriate limitations in a new RFC. It is so ordered this 12th day of July, 2018. ___________________________________ UNITED STATES MAGISTRATE JUDGE 4

Judgment

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION SHAKICA SHAUNTE WASHINGTON PLAINTIFF V. CASE NO. 4:17-CV-00555-BD SOCIAL SECURITY ADMINISTRATION DEFENDANT JUDGMENT In accordance with the Order entered this day, judgment is hereby entered in favor of Plaintiff Shakica Shaute Washington and against the Social Security Administration. This case is remanded to the Social Security Administration for action consistent with the order entered this day. This is a sentence-four remand under 42 U.S.C. §405(g) and Melkonyan v. Sullivan, 501 U.S. 89, 97-103 (1991). So ordered this 12th day of July, 2018. ___________________________________ UNITED STATES MAGISTRATE JUDGE

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Description
1
08/31/2017
MOTION for Leave to Proceed in forma pauperis by Shakica Shaunte Washington.
2
08/31/2017
COMPLAINT against Social Security Administration, filed by Shakica Shaunte Washington.
1
Civil Cover Sheet)(kdr
1 Attachment
3
08/31/2017
ORDER granting 1 Plaintiff Shakica Shaunte Washington's motion for leave to proceed in forma pauperis and directing the Clerk of Court to prepare a summons and forward it to Ms. Washington's counsel for service of the complaint upon the Defendant. Signed by Magistrate Judge Beth Deere on 8/31/2017.
08/31/2017
Summons Issued as to Social Security Administration, U.S. Attorney and U.S. Attorney General and forwarded to Plaintiff's counsel. (Text entry; no document attached.)
4
09/25/2017
CONSENT to Jurisdiction by U.S. Magistrate Judge. Case reassigned to Magistrate Judge Beth Deere. Signed by Chief Judge Brian S. Miller on 9/25/2017.
5
10/02/2017
SUMMONS Returned Executed by Shakica Shaunte Washington. Social Security Administration served on 9/15/2017.
6
11/20/2017
ANSWER to 2 Complaint by Social Security Administration.
7
11/20/2017
NOTICE of Appearance by Angeline S. Reese on behalf of Social Security Administration
8
11/20/2017
NOTICE by Social Security Administration of the conventional filing of the administrative transcript
9
11/21/2017
(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) ADMINISTRATIVE TRANSCRIPT of proceedings re 6 Answer to Complaint and 8 Notice of Filing. Document received in paper and maintained in the Clerk's office. (cmn) (Documents with restricted access added as attachments on 11/21/2017 for review by Court users only.)
10
11/22/2017
SCHEDULING ORDER: Plaintiff must file a Brief on or before 1/3/2018. Defendant must file a Brief within 42 days of the date Plaintiff's Brief is served; and other briefing requirements. Signed by Magistrate Judge Beth Deere on 11/22/2017.
11
12/28/2017
Unopposed MOTION for Extension of Time to File Plaintiff's Opening Brief by Shakica Shaunte Washington
12
12/28/2017
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 11 Shakica Shaunte Washington's unopposed motion for extension of time to file her brief. The time is extended to, and including, January 22, 2018. The Commissioner's brief shall be due 42 days from the date Ms. Washington's brief is served. Signed by Magistrate Judge Beth Deere on December 28, 2017.
13
01/22/2018
PLAINTIFF'S BRIEF filed by Shakica Shaunte Washington. Defendant Brief due by 3/5/2018
14
03/05/2018
DEFENDANT'S BRIEF filed by Social Security Administration.
15
07/12/2018
ORDER REMANDING TO THE COMMISSIONER the case with instructions to develop the record as necessary and to reconsider Ms. Washington's mental impairments, including appropriate limitations in a new RFC. Signed by Magistrate Judge Beth Deere on 7/12/2018.
16
07/12/2018
Judgment
17
10/10/2018
First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, by Shakica Shaunte Washington
18
10/10/2018
AFFIDAVIT in Support re [17] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412, filed by Shakica Shaunte Washington.
1
Exhibit A-CPI Table
2
Exhibit B-All Professional Time
3
Exhibit C-Attorney Time
4
Exhibit D- Paralegal Time
5
Exhibit E- Expenses
6
Exhibit F- Affirmation and Waiver of Direct Payment of EAJA fees
7
Memorandum in Support
8
Certificate of Service
8 Attachments
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